Turmoil and turbulence

The Navajo presidential election produces a very blustery campaign season

A requirement that Navajo Nation presidential candidates must fluently speak and understand their native language to qualify for the ballot has sparked a political firestorm on the country’s largest reservation and caused postponement of the election for their new leader.

The requirement came under scrutiny after candidate Chris Deschene won 19 percent of the vote, nearly 10,000 votes, in the Aug. 26 primary, coming in second only to former President Joe Shirley, who garnered 21 percent of the vote in a crowded field of 18 hopefuls.

On Oct. 9, Deschene’s qualification for the office was challenged by primary candidates Hank Whitehorne and Dale E. Tsosie before the Office of Hearings and Appeals.

During the hearing, Whitehorne’s attorney Justin Jones asked Deschene three basic questions in Navajo: Where are you from? What are your clans? How is a resolution made into law in the Navajo Nation government?

However, Deschene replied in Navajo to each question with one identical answer: “Éí nashín’taah doo ákót’éedah,” which translates in English, “You are testing me. This is not right.”

He was asked multiple times to answer each question but declined.

Finally, chief hearing officer Richie Nez declared, “I’ve been pushed into a corner by clear and convincing evidence that by refusing to answer questions which will lead me to pass on whether or not Mr. Deschene is fluent,” thereby disqualifying the candidate.

The statement said that the Office of Hearings and Appeals “expects [the] Navajo Election Commission to place the candidate with the next highest votes as the new candidate on the official ballot in the general election. All parties shall have ten days to appeal this final order to the Navajo Nation Supreme Court.”

Since that initial ruling, the fluency issue has caused serious disruptions to the presidential election process, peppering it with legal proceedings in all branches of the Navajo government, including, in addition to the Hearing and Appeals Office and the Supreme Court, the Navajo Board of Election Superintendents, the Legislative Council, the Office of the President and Vice President, and legislative legal advisors.

A runoff presidential election scheduled for Nov. 4 was ultimately cancelled while the legal maneuvering continued. As of that date, word was that a new election without Deschene on the ballot had been set Dec. 23.

Beyond the issue of Deschene’s candidacy, however, the debate around his required fluency highlights the declining use of the native language by young Navajos, as well as the multiple functions of indigenous language.

According to Yanua Morgan, a resident of Aneth, Utah, the fundamental use of the language is more than simple, one-dimensional communication.

“The culture is carried in the language. Our language is filled with metaphor. As an example, the code talkers could use our Navajo metaphor to build the unbreakable code that brought victory to the U.S. forces in World War II. If you aren’t fluent in the language you are not fluent in the metaphor,” she explained. “Not every Navajo could be a code talker.”

But that valuation of the language runs counter to the feelings of many younger people, who maintain they should not be excluded from running for political positions because of the requirement when, some say, they haven’t been taught their native tongue at home or in the schools, and many live off-reservation where they cannot use their birth-tribal language.

On the ballot

On Oct 13, the Navajo Board of Election Supervisors convened a special meeting at which they declared that Deschene’s name would remain on the ballot.

Supervisor Jonathan Tso said in the decision, “The people have a right to choose the leader of their choice,” meaning a popular vote could show whether or not fluency is an essential issue.

“These grievances are fundamentally flawed,” wrote Deschene in a Facebook statement a few days later. “But this issue has become larger than me or my candidacy. Voters’ rights must be preserved and protected. A majority of our chapters have passed resolutions supporting the Navajo Board of Election Supervisors’ decision to honor fundamental law that protects peoples’ right to choose their own leaders. I firmly believe that the Navajo Nation president should be chosen by our people, not by two complainants and their attorneys…We continue to fight.”

Direct appeal

Deschene also appealed the Office of Hearings and Appeals’ Oct. 9 ruling to the Navajo Supreme Court, but the appeal was dismissed because the required documentation was not turned in by Oct. 20, or 10 days after the ruling, according to the order, which stated, “The court hereby dismisses the appeal for the lack of jurisdiction. The final order disqualifying [Deschene] entered in Oct. 9 is final and enforceable.”

But Deschene again appealed directly to his followers in a statement on his Facebook page, saying, “I respect the Supreme Court, but they simply got this one wrong. I want to be your president. I am qualified to be your president. And I remain on the ballot as a presidential candidate. You must continue to vote.

“We are not surprised by today’s ruling, and we assure you, this is not over. Don’t quit on me. I will continue to fight for you,” Deschene added. “For us. I’m committed to solving the real problems facing our nation. You can help by staying the course and voting. Let’s win this.”

However, according to Edison Wauneka, director of the Navajo Election Commission, early voting was under way already that day. Twenty ballots had been sent to each chapter, explaining that the people are free to vote until the board meets to make a decision on the OHA ruling.

Two days later, Oct. 23, the Navajo Supreme Court issued a decision on a Writ of Mandamus filed by lawyers for Tsosie and Whitethorne petitioning the court to order Board of Election Supervisors to abide by the OHA order to postpone the Nov. 4 presidential election and remove Deschene’s name from the ballot. The court found in favor of the petitioners, stating that it is not within the election board’s authority to determine who should be on the ballot. The authority is the OHA. The election board did not comply.

As a consequence, lawyers for Tsosie and Whitethorne filed contempt charges against the election board.

Legislative relief

The Navajo Council then began to move on the issue. Delegates Leonard Tsosie and Danny Simpson introduced a bill that supported voters’ rights. While not striking the language requirement from the code directly, the bill would amend candidate qualifications. “Language proficiency shall be determined by the People voting in favor of the person upon the right and freedom of the Diné to choose their leaders.”

The council press release states that it is a measure to “let the people decide” if candidates are fluent enough in the Navajo language.

“This legislation does not take the fluency off — it’s still required for the candidates of the Navajo Nation president and vice president,” said Simpson. “This whole legislation is to protect the voting rights of our Navajo people and to let them decide who’s going to be their leader.”

The legislation passed following five hours of discussion. Speaker Pro Tem LoRenzo Bates cast the deciding vote in support of the legislation, citing fundamental law and the people’s right to choose their leaders.

The resolution was then sent to the Office of the President to be ratified. Even though rumors spread that the President Shelly would sign the bill, in the televised Oct. 28 announcement where he spoke mostly in Navajo, he vetoed the legislation, saying in his translated statement published from his office, “The decision to amend the language requirements in the Navajo Nation Election Code must be brought before the Navajo people through a referendum vote. This decision is far too important and it is one the people need to decide on.

“We are a nation of laws. I took an oath to uphold the law,” he added.

“Diné bizaad [Navajo Language] is sacred. Navajo leaders should have both language and cultural fluency in order to be qualified. Every society has an obligation to hold onto their traditions,” said Shelly. “The Navajo Nation Supreme Court ordered the 2014 ballots to be reprinted and the election unavoidably rescheduled to ensure a valid election. I therefore exercise my veto authority.”

The day before the presidential veto, the Supreme Court delivered contempt of court orders to the Navajo Board of Election Supervisors and the Director of the Navajo Election Commission.

The motion, filed by Tsosie and Whitethorne lawyers, stated that the contempt charges come after the high court’s Writ of Mandamus was allegedly ignored, that, “Respondents have refused to comply…The election is still scheduled for November 4, 2014 and Deschene is still on the ballot.”

“Deschene’s disqualification order has been deemed ‘final and enforceable’ by this Court, and it must be obeyed by all,” the motion stated. “Respondents’ failure to follow the order of this Court is contempt.”

The filing also asked for all members of the board of election supervisors and Edison Wauneka, executive director for the Navajo Election Administration, to be present for the hearing to explain to the high court their reasons for defying the court order.

The court hearing convened Oct. 31 in Chinle, Ariz. After listening to the show cause, motion and response, presiding Chief Justice Herb Yazzie said, “We find that the government [NBOES] did not show why they should not be held in contempt, offering nothing that would demonstrate that they made an effort to comply with the court order [Oct. 23 Writ of Mandamus]. In fact, in the last sentence in the government response [they say] ‘the motion should be denied, this case dismissed and the general election should be allowed to continue on Nov. 4 with an unaltered ballot so the people may exercise their fundamental right to chose their own leaders.’ That [was] said in the face of a motion for contempt. The government refuses to comply with the court order.

“We find, therefore, that the Navajo Board of Elections Supervisors is in contempt. The board knowingly and willfully failed to address and neglected to perform its duties under the election code.”

However, Yazzie continued in his statement to clarify court concerns over the lack of legal responsibilities exercised by the legislative legal advisors. “Now we have a troubling aspect,” he said. “The government lawyers, office of legislative council, department of justice, the attorney general’s office did not do the analysis that would be required to determine whether people were going to comply with explicit law and explicit court orders. What we heard is the government lawyers sat back and maybe even condoned illegal action by their clients and that’s what’s really troubling in this case.

“There is a set system in this government for changing the law if you don’t agree. We will ask for an explanation outside this court of the government lawyers’ inaction for condoning this situation because we have rules and responsibilities that have to be looked at. The concept of being a trustee – that will be done outside this court proceeding.

“The Navajo Nation lawyers didn’t do an analysis and did not make a determination whether the board or Mr. Wauneka was acting outside the scope of their authority when they set on the course that they did. .”

Yazzie explained to the NBOES and director Wauneka that the law allows the court to incarcerate them on this misdemeanor, but the court will not turn them [the board] into martyrs and send them to jail.

Instead, Wauneka was asked directly if he will follow the court orders, print new ballots with Deschene’s name removed and with a new candidate, and postpone the presidential election. “Will you do that?”

“Yes,” replied Wauneka. As a result Yazzie declined to hold Wauneka in contempt.

Still in limbo

Some balance in the chaotic legal battles was offered during a phone interview with Diné grassroots activist Norman Patrick Brown. “We have got to carefully examine what created this problem. We must look at the source, the defiance all the way through, personal attacks and divisiveness,” he said.

Brown praised the compassion and patience Yazzie displayed in the Supreme Court hearing. That shows relationship, not punishment, as is used in Western law, he said. “Yes, there are existing laws within the government structure. That’s all we have. That’s all that has evolved today. But we can’t do it by only western government. These are Diné issues that can only be resolved by Diné solutions, the foundation of K’, our Diné respect of other points of view, uniting our people not dividing; growing relationship not severing. It is a good time of movement for change. It is healthy.”

The Navajo general election for other offices continued in all polling places on Nov. 4. Votes cast for all other offices were counted, but no votes for either presidential candidate were counted, despite Deschene’s name appearing on the ballots.

Shiprock Council Delegate Russell Begaye, third-place finisher in the August primary, has reportedly agreed to run against Joe Shirley for Navajo Nation President. The election was said to be set Dec. 23, but this could not be confirmed at press time.