by Sonja Horoshko | February 1, 2015 1:20 pm
A fluency requirement has left the Navajo presidency in limbo
The Navajo Nation presidential election scheduled for last Nov. 4 may – or may not – happen before August.
The office, the qualifications to run, and the procedures to elect a new president are the center of a whirlwind of debate that sometimes turns to anger and accusations of disenfranchisement. In a season of special sessions, litigation and counter-litigation, Supreme Court hearings and emergency council legislation, decisions central to the future of the Diné people have been decided by the toss of a coin or whispered behind-the-scene deals.
At times the government seems on the brink of chaos, but then it settles into focused debates, righting processes that a week before were at full stalemate and the next week can be lodged in court.
It is now the early February 2015. The deadline originally ordered by the Navajo Supreme Court for holding the election has passed into history.
The voting process was derailed when Chris Deschene, second-place winner in the August 2014 presidential primary, was disqualified. (See Free Press, October and December 2014.)
Before the general election could be held, Hank Whitethorne and Dale E. Tsotie, both candidates in the primary, petitioned the Navajo Office of Hearings and Appeals challenging Deschene’s fluency in the Navajo language. Fluency is a requirement to run for the office and Deschene had checked “yes,” to assert that he was indeed fluent, on the application when he filed his papers in spring of 2014.
Office of Hearings and Appeals Chief Presiding Officer Ritchie Nez found in favor of the petitioners. Deschene was removed from the ballot, replaced by the third-place primary finisher Russell Begaye, who will be running against former two-time Navajo President Joe Shirley, who came in first.
Deschene appealed to the Navajo Supreme Court. He lost and the court ordered the Board of Election Supervisors to remove his name from the ballot and replace it with Begaye’s. The court requested a special election be scheduled for president before Dec. 23, 2014.
The Supreme Court decision supporting the OHA did not sit well with Deschene’s supporters.
Fluency in Navajo was made a requirement for the presidency because language is seen as central to retaining and conveying the culture of the Diné. Just as Americans would find it strange to have a president who was not an English- speaker, traditional Navajos believe their president should speak their own tongue.
But a growing number of dissidents, particularly youth, say the fluency requirement limits access to government positions for Navajo people who do not speak or are not fluent in their Native language – a growing percentage. The critics say this encourages Navajo youth to be disenfranchised.
The resulting firestorm of debate has singed every branch of the government and made it impossible to hold an election in December or January.
Further complicating matters, in mid- December the OHA disclosed that Ritchie Nez, OHA chief hearing officer, had failed to get a law license from New Mexico, Arizona or Utah within a year of his appointment to office as required.
Within days Nez resigned.
Deschene then filed another grievance with the OHA to vacate Nez’s decision on the fluency requirement. But Deschene was denied again. Hearing Officer Joe Aquirre said that the rules of civil procedure are not applicable because the OHA is independent of the courts. He also affirmed Nez’s decisions because the requirement to be a member of the state bar is not the law, although it is written into the Navajo Nation Code.
Deschene again was told he would not be on the ballot for the presidential special election.
While Begaye and Shirley were attempting to mount campaigns for the special election – now presumably to be held within the next six weeks – the Navajo Council began to take up legislation that would set the date and time of the election and also address the fluency requirement for presidential candidates.
Ring in the new
With the fall session over, and the council membership about to change with the incoming mix of new and incumbent delegates, a special council session was convened on Dec. 30 to introduce emergency legislation and debate the election schedule in January and the funding for it.
During the hearings disqualifying Deschene, Supreme Court Justice Herb Yazzie also found the Board of Election Supervisors in contempt of court, and removed director Edison Wauneka, for not following the orders of the OHA and the Supreme Court to schedule a new special-election date and print new ballots with the two candidates, Begaye and Shirley.
By now, there was no board in place to make the decisions regarding the special election date and its funding and procedures.
In an effort to set the election on a straight course under the purview of the council, Delegate Leonard Tsosie introduced two pieces of emergency legislation to the 22nd council.
The first, CD-80-14, stated its purpose was to address a matter of Navajo voter disenfranchisement; and provide for a special run-off election and a special general election for the president.
The second, CD-81-14 requested the council pardon the Navajo Board of Election Supervisors from any violations of law in the performance of their work in presiding over the 2014 election, including indirect civil-contempt findings, and reinstating the named individuals to their offices on the Navajo Board of Election Supervisors.
Both measures were passed late in the special session and dates were added for the special primary and final election of the president. It was also made clear that all 17 candidates that ran last year would have an opportunity to run again and their filing fees would be waived. New candidates would pay the filing fees.
Nothing was said about the requirements for the office.
President Shelly’s signature would be needed within 10 working days if the legislation was to become law. That decision would be made just a few days prior to the inauguration of the new 23rd council.
While rumors spread that Shelly would veto the legislations another key question came into focus. Who would become interim president until a new president was elected and inaugurated?
Guidelines for the decision are found only in the Navajo Code. There is no Navajo Constitution. Both Shelly and the council found code sections supporting their positions.
Shelly petitioned the Supreme Court to support his position that Navajo law recognizes him as interim president until a new president is elected.
The council, in turn, petitioned the Supreme Court to end Shelly’s term on Jan. 13 at noon when the inauguration takes place and support their interpretation of the law which gave them authority to appoint an interim president from among the council delegates.
With both petitions before the high court, Shelly began negotiations with council delegates over the two pieces of legislation and his position as interim president on the table. In the end, a deal was struck between Shelly and the 22nd council, represented by then-Speaker Pro Tem LoRenzo Bates, Council Delegate Leonard Tsosie and two incoming council delegates, Otto Tso and Amber Crotty, who, when they signed the agreement on Jan 9, had not been sworn into office.
That same day, Shelly approved CD- 80-14 providing for a special election and CD-81-14 pardoning the Board of Elections Supervisors and reinstating them.
The deal was announced on Jan. 10 prior to Supreme Court approval of a petition filed by Shelly and the council to withdraw the initial petitions because a deal had been made.
The court made it clear that it took no position on the legality of the agreement or its compliance with law and factual and legal conclusions. In addition, the court conveyed that the agreement between Shelly and the council and the Supreme Court’s decision had no effect on the prior decision of the court to extend the deadline to hold a special presidential election 60 days beyond the first deadline, Dec. 23, and hold the election before the end of January.
Shelly was then sworn in as president in a private, closed-door ceremony. The inauguration of the council delegates was held at noon on Jan. 13 and the new Navajo Nation 23rd council convened its first special session that afternoon.
Coin tosses and cedes
After introductions and statements the council considered legislation that would settle the question of who was to become the new speaker pro tem for two weeks until the winter session, scheduled Jan. 26-30. Delegates Bates and Kee Allen Begay were nominated. The resulting vote was a tie, 12-12.
Council decided a coin toss would settle the vote. Bates won.
Two weeks later, when the new winter session was called to order, the first order of business was to elect a speaker from the council who would serve for two years. On Jan. 26, council opened with a debate about how to proceed, but finally settled into another primary race with seven candidates. The initial vote whittled the choice to two, delegates Bates and Alton Shepard. When the vote was called again, it was again 12-12.
There is no code that covers how to break this tie. It is left to the council to set a course of action, but none seemed appropriate, including a coin toss.
After a lengthy debate a consensus was reached that the two candidates work on an outcome together. But there was no meeting. Instead, Shepard addressed the council.
According to journalist Marley Shebala’s blog, he said, “I have principles and values and appreciate your willingness to come together. And I am young and so I am willing to concede in the spirit of unity. I hope that my decision will be an example to others.”
Shebala stated that the people in the gallery and the council gave Shepard a standing ovation.
Speaker Bates hails from the northern agency, and represents Nenahnezad, Newcomb, San Juan, Tiis Tsoh Sikaad, Tsé Daa K’aan and Upper Fruitland chapters. He has run unsuccessfully for the office twice before. He hopes that the council can come together and work to improve the tribe.
Council to reconvene
Tsosie and Whitethorne have filed a new motion seeking an election ASAP with Shirley and Begaye the only candidates. On Jan. 16, the court voided the election deadline it had previously ordered when it set a briefing schedule for the new motion. If the court finds in favor of the petitioners, the special election could be held between Shirley and Begaye as early as mid-March.
However, the court also offered Begaye and Shirley an opportunity to file a motion on their own behalf before Feb. 5, the last day of the briefing schedule.
In a press release issued late Jan. 27, Speaker Bates announced that the Navajo Nation Council will remain in recess from its winter session and reconvene at 10 a.m. on Jan. 29. “The Council has some pressing issues to address concerning the proposed New Mexico Gaming Compact which require immediate attention,” stated Bates.
The council will send a delegation to meet with officials on Tuesday in Santa Fe, N.M.
Council members received several reports and acted on several bills on the opening day of the winter session before recessing on Jan. 26.
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