NHA pulls out of proposed settlement
By Alastair Lee Bitsoi
WINDOW ROCK, March 14, 2013
That's according to Edward T. Begay, chair for the NHA Board of Commissioners, who voided the tentative agreement with the Council that had been discussed on March 5.
Council Delegate Leonard Tsosie (Baca-Prewitt/Casamero Lake/Counselor/Littlewater/Ojo Encino/Pueblo Pintado/Torreon/Whitehorse Lake) has a different opinion.
On Jan. 2, in a granting motion for preliminary injunction filed by NHA against the Council and Naize (Blue Gap-Tachee/Cottonwood-Tselani/Low Mountain/Nazlini), Window Rock District Court Judge Carol Perry mandated both parties to "talk things out."
In a March 8 letter sent to Naize, who is listed as one of the defendants in NHA vs. Resources and Development Committee, Leonard Tsosie, Katherine Benally, Naa'bik'iyati' Committee and Speaker Naize, Begay explained the reason for his position.
Begay wrote that delegate Tsosie, who led the negotiations on behalf of the Council last week, told fellow Council members once NHA relinquished its Tribally Designated Housing Entity designation to the tribe, as the tribe required in the settlement, they didn't have to approve the proposed Section 17 legislation that would make NHA a corporation - NHA's main demand in the settlement.
"While Tsosie was asking NHA to trust him, we understand Tsosie was telling the other delegates during caucus that if the NHA relinquishes TDHE designation they would then control the Indian Housing Block Grant," Begay said.
Begay added that Tsosie, "told other delegates that they did not have to push for approval of Section 17 Corporation when it comes before the Council."
As part of the proposed settlement, both NHA (the plaintiffs) and members of the Council (the defendants) agreed to dismiss the lawsuit filed by NHA without prejudice. The proposed settlement included NHA relinquishing its TDHE authority back to the tribe, in exchange for which legislation for NHA to become a semi-independent corporation like Navajo Oil and Gas Company would be debated on the Council's floor.
Begay said since no settlement agreement has been finalized and signed, the letter to Naize voids any and all proposed agreements discussed on March 5.
"Accordingly, we will not be dismissing our lawsuit nor will there be any relinquishment of the TDHE designation," Begay said.
But according to Tsosie, the proposed March 5 settlement is an enforceable and finalized agreement.
"As far as I am concerned, we have an enforceable agreement," Tsosie wrote in a March 11 letter addressed to Begay. "The deal was finalized in writing and this was emailed to your lawyer."
Tsosie's letter to Begay noted that he was disappointed, but not surprised by NHA voiding the agreement with the Council.
"I do not know who you talked with to get the information or comments made in the Council's caucus discussion," Tsosie wrote to Begay. "Your using 'spies' or soliciting the caucus' confidential discussion is bad faith and bad conduct on NHA's part.
"Hearsay statement of a spy almost has no evidentiary value and yours and NHA's reliance on such 'evidence' says a lot about what length you and NHA will go to smear the Council or its members."
In his letter, Tsosie also addressed Begay's allegation of "bad faith." He explained to Begay that he makes neither promises nor controls how a delegate would vote on the proposed Section 17 legislation.
"In other words, we cannot guarantee a vote of approval on the Section 17 housing proposal," Tsosie said. "But, I did promise that the Section 17 idea will be presented to the Council and that I volunteered my services as the sponsor of the future Section 17 legislation (as the Delegate of Last Resort)."
"We told NHA board when written into a legislation, it will get the necessary vetting as any other legislation," he added. "That is not bad faith."
Meanwhile on Monday, the legal counsels for both parties - Patterson Joe for NHA and Michael Upshaw for Council - provided their oral arguments to District Court Judge Carol Perry.
Perry, who will decide whether to grant NHA a permanent injunction against RDC, the Naa'bik'iyati' Committee and Speaker Naize, told both counsels she hadn't yet read the briefs to even grant the injunction. She also did not entertain former Chief Justice Robert Yazzie's amicus brief he had written on behalf of NHA.
"I haven't read the briefs, so I'm not able to include that at this time," Perry told Yazzie, while asking him to have a seat with the rest of the audience.
In his argument, Upshaw cited from the preliminary injunction motion how board commissioner Richard Blackhorse was given due process when the RDC interviewed him for the board position representing Utah homeownership tenants. Upshaw said the NHA Human Resources Department listed Blackhorse as an applicant for one of the board positions in an April 17, 2012 letter submitted to the committee, meaning Blackhorse was well aware of being possibly replaced as a board member.
Blackhorse, according to an Aug. 14 RDC resolution, which was later endorsed by the Naa'bik'iyati' Committee on Oct. 11, was replaced by Kenneth Chester as the new Utah homeownership tenant representative. In addition to Chester, Leonard Anthony, Steven Yazzie and Clara Gorman were also confirmed as NHA board members by the Naa'bik'iyati' Committee.
The basis for NHA's lawsuit against the Council committees centers on whether the RDC has authority under tribal law to appoint and reappoint members of NHA's Board of Commissioners. Blackhorse, along with four other current board members - Begay, Shawnevan Dale, Leila Help-Tulley and Wilson Ray - are serving expired terms. The board's three other posts are vacant.
Contrary to Upshaw, Joe argued due process wasn't offered to Blackhorse and NHA, according to provisions under the 2011 amendments of Title 2.
"There are laws and statutes in place that they're violating," Joe said. He referenced a provision under Title 2 that requires a photocopy of the proposed resolution be distributed to the "Office of the President, Office of the Attorney General, Office of the Controller and the affected division, department and/or program."
Joe said the Resources and Development Committee didn't follow this provision.
Asked by Perry if NHA is considered a division, department and/or program, Joe responded, saying, "Yes, we're a program."
"The defendants haven't provided no new evidence to the court," Joe said, adding, "They do not show excusable neglect. All they're doing is arguing the same facts."
Upon hearing oral arguments, Perry told both parties the prevailing issue underlying the dispute is how the Navajo Nation adjusts to changes.
"As I said, Changing Woman is a major authority," Perry said, referencing Diné Fundamental Law. "The preeminence of the Navajo language is change. How do we implement change?"
Perry added the best solution regarding the matter is to "work things out."
"The court hopes both parties will work things out in the best interest of the people, so we have the best housing in the future," she said.
A decision, she said, would be reached at least by Friday.
"We'll review everything and see where we stand," she explained. "Whatever the outcome, it will be the best outcome."
After the hearing on Monday, Begay told the Navajo Times, "The judge said hopefully Friday. We'll just await."