Legal views clash on Shirley reform
By Jason Begay
Navajo Times
E-mail this story
Since President Joe Shirley Jr. launched his government reform effort two weeks ago, officials have weighed in with conflicting legal opinions on the validity of a voter initiative he is pushing to accomplish his goals.
Shirley's initiative would reduce the Navajo Nation Council from 88 to 24 seats and would give him the power to trim pork from council spending measures by line-item veto.
First came a legal opinion from the Department of Justice on April 29, stating that approval of Shirley's initiative would require a simple majority of those casting ballots, rather than a majority of voters in each precinct, as is specified in tribal law governing the council's size.
"The basic issue is whether the Navajo Nation Council can impose draconian procedural requirements on the right of the Diné to make their own laws," states Attorney General Louis Denetsosie. It cannot, he concluded.
The Office of Legislative Counsel on Monday issued its own legal opinion challenging DOJ's stance as well as Shirley's assertion that any citizen initiative to amend the council size would require a simple majority.
Instead, such an issue would require a supermajority, in this case a majority of voters in each precinct, wrote Frank Seanez, interim chief legislative counsel.
The opinion also challenges the authority of the attorney general, a Shirley appointee, particularly in matters over the council, which is elected by the public.
"The attorney general attempts to invalidate through his opinion the law as passed by the Navajo Nation Council," Seanez said. "(He) has not been delegated such authority by the council and has no independent source of legal authority for such action."
The opinion portends a legal challenge by the council, which is represented by the Office of Legislative Counsel, if voters approve Shirley's initiative.
"The language (of the petition) is clearly wrong under the Navajo Nation law," the legislative opinion states. "It must be changed prior to any circulation of the petition."
Petitions have already been making rounds throughout the reservation, said Patrick Sandoval, Shirley's chief of staff.
As a member of Shirley's government reform task force, Sandoval said there are about 115 volunteers gathering signatures and rallying support among voters.
The speaker's office released a statement Wednesday noting that a previous effort to reduce the council by voter referendum in 2000 had acknowledged the requirement for approval by a majority of voters in each precinct, which did not occur.
At the time, then attorney general Levon Henry and legislative counsel were in agreement on that point, Seanez wrote.
Denetsosie himself did not disagree with the opinion at that time, he continued.
However, Denetsosie current opinion, drafted at the request of Shirley, draws a distinction between the two efforts to reduce council size.
The 2000 measure was a referendum, an issue brought to the people by the government, and required a supermajority vote to pass, Denetsosie wrote. The current effort is a citizen initiative and therefore requires only a simple majority to pass, he asserted.
The president is acting as a Diné citizen, which is allowed, he said.
However, legislative counsel insists that a citizen initiative should live up to the same requirements as a referendum - a measure that is referred to voters by the council.
"The stringent vote requirements of (Title 2) remain in place, regardless of the claim that the referendum is alleged to be an initiative of the Navajo voters," the opinion states.
Denetsosie's opinion takes into account Diné Fundamental Law, which gives the Navajo people the opportunity to have a say in their leaders.
"We all work for the people, especially the elected officials," Sandoval said. "This initiative is allowing people to speak."
Sandoval hopes to gather at least 200 volunteers to hold petition drives at public events and locations throughout the reservation and border towns. At the same time, Shirley will air radio spots on several stations throughout the region to publicize the measure.
The government reform initiative must gather 15,000 signatures of registered voters in order for the initiative questions - whether to reduce the council from 88 to 24 members and to give the president line-item veto power - to appear on the November ballot.
Meanwhile, support for the issue seems to be gaining among the public. Naschitti Chapter voted 27-1 to support the initiative during its May 12 meeting.
"The council has been doing a lot of wasteful spending of funds," said Arlene Shorty, who presented the chapter resolution. "I also support this because of the way they are treating our current president, it's really very disrespectful and uncalled for."
Shorty, who worked in the Shirley administration during his first term, referred specifically to the president's state of the nation address in April, in which delegates interrupted him with criticism for speaking his opinion on legislation that was then before them.