A battle over Utah Navajos and redistricting continues

A dispute over access to recordings of meetings of the San Juan County, Utah, commission was resolved in February when county officials turned over some requested recordings to the Navajo Nation.

However, the long-running disagreement over redistricting that prompted the request for the recordings remains contentious.

On Feb. 27, the Navajo Nation and the Navajo Human Rights Commission filed an amended complaint to a lawsuit brought in mid-January against the commissioners and clerk/auditor of San Juan County, Utah, regarding redistricting in the three-district county.

According to Brian Barnard, litigating attorney for the Navajos, “We dropped / postponed a request [in the original suit] for an immediate order to prevent elections based on the current map, but the suit continues.”

A hearing was set for April on the original lawsuit, but that has now been postponed in light of the upcoming amended complaint. No new hearing has been set.

Gerrymandering by race?

The county hasn’t been redistricted in 30 years, since a consent decree that mandated how voting should be done in order to ensure fair representation for the Navajos living in the county.

However, in 2011 Leonard Gorman, executive director of the Navajo Nation Human Rights Commission, began pressing the commissioners to redistrict to reflect numbers from the 2010 census.

On Nov. 14, San Juan County commissioners adopted a new apportionment map that defines the voting districts to be used in the November 2012 election.

The Navajos’ complaint alleges that as a result of the adopted map, Native American voters – who reportedly make up 50.4 percent of the total population of the county – are packed into one voting district, District 3, represented by current Commissioner Kenneth Maryboy, a Navajo.

The suit alleges that the district is racially gerrymandered and contains an unnecessarily excessive supermajority of Native American voters, so that the votes of Native American voters inside and outside of the district are unlawfully diluted.

The Navajo Nation has reservation lands in both Districts 1 and 3 and fee lands in District 2 of San Juan County. Members of the Navajo Nation who reside in the state of Utah and in San Juan County are eligible to vote in the county, and are registered to vote as citizens of the United States and Utah.

County Clerk Norman Johnson used voting precincts to make apportionment adjustments to the county map. The county commission map in use today resulted after the U.S. Department of Justice sued the commission in 1983, which was at the time elected through at-large voting county-wide.

The 1983 complaint said that although there were then some 4,500 Navajos living on reservation land within San Juan County, no Indian had ever been elected to the county commission, and the board was “unresponsive to the needs and desires of the Indian community.”

The resulting consent decree required that District 3, in the southeast corner of the county, be created to give Navajos the chance to elect a representative of their choice. District 3 is populated entirely by Navajos, and only people living in that district vote for that commissioner. The remaining two districts likewise vote within their own district.

After the 2010 census, Johnson adjusted the districts using census blocks overlaid on voting precincts. His map shifts Cedar Point and Ucolo precincts in the northeast corner of District 2 into District 3. This left Navajo communities lying outside District 3 basically unchanged and with Anglo majorities.

Gorman and others with the Navajo Nation have sought a redistricting that would reflect the Navajo-majority population by having two districts with a Navajo majority.

A redistricting map drawn by the Navajos used 2010 census blocks to divide the county into commission districts of 4,915 people each. The Navajo map was proposed at a commission meeting in September 2011, but no action was taken on it.

The commissioners have said they opposed it because, among other reasons, the new configuration divides the town of Blanding among the three districts. The commissioners say they work hard to represent Navajo interests and that the county had never redistricted since 1983 because they were following the terms of the consent decree.

The Navajo proposal caused a controversy in San Juan County, with letters to the editor in local papers largely opposed to their proposed map. Citizens voiced concerns about turning over the county’s purse strings to people who don’t pay county property taxes when living on the reservation.

There is also a general feeling that, if two Navajos were to be elected to the county commission, they would be likely to change some of the policies of the established board, which is conservative and Republican.

Some locals have said that the county should return to voting entirely at-large, a move the Navajos oppose.

The Navajos’ amended complaint alleges that the adoption of the commissioners’ map on Nov. 14 made Native American ethnicity the predominant factor in creating and/or maintaining the district boundaries that San Juan County intends to use in upcoming elections. The complaint says this disregards traditional redistricting principles, including the concept of “community of interest,” a provision of the federal Voting Rights Act that must be kept in mind when redistricting.

The dispute over open records resulted from a request by Gorman on behalf of the Navajo Nation for audio recordings of all commission meetings since August 2011.

Johnson denied the initial request and said that a county attorney would need to assess the recordings before releasing them.

The Government Records Access and Management Act, GRAMA, Utah’s records law, states that written minutes and recordings of open meetings are public records and must be released within a reasonable amount of time. However, a provision under the Utah Open and Public Meetings Act states that a public body must make a re cording of an open meeting available to the public within three business days.

‘The official record’

Written minutes of the meetings can be found on the San Juan County web site. However, audio recordings contain a more complete record of discussions and public comment. The minutes are much briefer and more general, describing the amount and length of public comment, but not specific remarks.

The issue escalated after Gorman met with Navajo Nation attorneys to discuss the initial denial by Johnson. It resulted in a second request asserting their right to public records under Utah Open Meetings and GRAMA procedures.

Members of the Human Rights Commission announced that they would be appearing during the public-comment time at the Feb. 21 commission meeting in order to clarify the reasons for the refusal and to get the denial of access into the public record.

At the beginning of that meeting, Commission Chair Bruce Adams startled onlookers by requesting that all recording devices in use by the public and media be turned off. “The written minutes are the official record,” he said, adding that the county’s recording is the official audio recording.

But Neil Joslin, editor of the Blue Mountain Panorama, reminded the commissioners, “This is a public meeting and I’ve been recording these meetings for years.”

And Marilyn Boynton, a Blanding resident, asked if they had checked with a lawyer. “I think the request to turn off recording devices is illegal at an open meeting.”

Johnson explained that the official audio recording is done by his office staff and is available to the public. He acknowledged that his office has some technical problems around uploading the audios to their web site where interested parties could download them.

But when asked about the time that would be involved in producing the audio recording of the present meeting, he couldn’t guarantee it would be available that day. “I want to provide it as fast as I possibly can.”

Adams then rescinded his request that personal recorders be turned off. “We’re not going to violate the law here.”

Complying with the law

Johnson had informed Gorman before he spoke at the Feb. 21 meeting that the county had prepared the requested CDs.

Then, for the record, Gorman addressed the commission concerning Johnson’s initial delay in producing the requested audio records and inquired about the process to obtain public information.

Adams said, “State and county GRAMA are the same thing. Whatever the GRAMA law states, we want to comply. There is certainly no intent on the part of San Juan County to destroy or do away with records or not make them available.”

Gorman asked the commissioners if the county has a specific open-information law. “We can’t override state law,” Commissioner Phil Lyman replied.

By early afternoon, Johnson turned over the audio recordings of the Nov. 14, 2011, and Jan. 23, 2012, meetings to Gorman. He also produced copies of the sign-in attendance sheets at each meeting.

Johnson gave the same audio recordings and sign-in sheets to the Free Press. When asked about the number of GRAMA requests his office receives, Johnson said it is a lot. He added, “I abide by the law. If I deny the request then there is an appeals process.”

When asked about his decision to hand over the records, Johnson said, “It was the GRAMA request, and learning from other state clerks that the record of public meetings should be made readily available to the public as soon as possible.”

Adams told the Free Press, “It was such a more unusual request than anything we had previously dealt with, and Mr. Gorman has been making such new requests, that now our audio is on the web. Everything is available immediately and we’re in compliance.”

Far-ranging discussion

The Navajos had sought the recording of Nov. 14, 2011, meeting in particular because they believe there remains some dispute as to whether the commission properly adopted the new district map.

The recording of that meeting shows Gorman and a delegation from the Utah Navajo area appealing to the commissioners to go back to the redistricting process and use census blocks to apportion the commission districts.

Referring to Ucolo and Cedar Point districts, Gorman said during the meeting, “You just don’t redraw this one little area and everything is hunky-dory. How many of the precinct lines correspond with the census blocks?’

“It’s real unfortunate to hear the level of opposition, the level of emotion expressed by the county commissioners,” said Clarence Rockwell, former executive director of the Utah Navajo Commission and a citizen of Aneth, Utah.

“We Navajo and other Native Americans make up over 50 percent of the SJC population and all we’re trying to do here is get maximum opportunity out of the voting rights act. Community of interest is a major concern. We’re asking to bring it to the table and improve our representation.”

Commissioner Maryboy stated, “All we’re asking is to look at the options and exercise our rights to do what we can to participate in the election process. I represent the Navajo people and the county. Change is scary, change is good and we have a court decree sitting here. It’s ten years. That’s where we’re at. At this point in time the NNHRC is involved. Who can we pick as a committee to work with Gorman? I recommend we look at census blocks.”

Maryboy made a motion to use census blocks. It died for lack of a second.

Additional discussion followed. Finally, Adams temporarily passed the commission chair to Maryboy (because the chair cannot make a motion) and made a motion to move the Ucolo and Cedar Point precincts to District 2. That motion passed 2-1, with Maryboy voting against — although the written minutes on-line, “Commissioner Phil Lyman seconded the motion. Vote unanimous. [Italics added.] Commissioner Kenneth Maryboy opposed the motion.”

In the audio recordings of the Jan. 23 meeting, there was a far-ranging discussion on the redistricting controversy. Monte Wells, a county resident, expressed his concerns about the dual citizenship of Navajos in the county.

“The Navajo Nation is a sovereign reservation set up to govern itself. The laws are set up to do just that, protect them from non-Indians or whatever it may be,” Wells said.

“That’s what the original thing was, they don’t fall under the same protection as the constitution. It just doesn’t apply to them. That’s why they have their own judicial system. .. So how can they come into the county that is definitely under the U.S. Constitution and not sovereign? How is this possible? Why do we even care? “

Adams explained to Wells that the Navajos are under “some kind of dual citizenship since the treaties. There’s some kind of tie there and that’s different than an illegal immigrant from Mexico or Canada.”

“The federal government owns reser vation land,” added Wells, “and that’s the vested interest in the reservation. The tribe don’t own that land…. For the county to put up with that, for the taxpayers of San Juan County to foot the bill for education, EMS, everything else and now we’re getting suited because they want a different voting district. We’re paying for ourselves to be sued. It ain’t fair. … It’s reverse racism.”

Commissioner Lyman then said, “This lawsuit really has really nothing to do with fair voting rights – one man, one vote. It’s another example of, if left to our own selves in San Juan County we’re really good at getting along with each other, but you get a politically motivated party from outside the county that comes in and wants to dictate and force us to do things that are not in our best interest, it does nothing but create problems.”