Court slaps down restriction on Diné Fundamental Law

By Bill Donovan
Special to the Times

WINDOW ROCK, June 3, 2010

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The Holy Ones, not the Navajo Nation Council, gave the people Diné Fundamental Law and the council has no authority to define how or when it can be used, the Navajo Nation Supreme Court said in a ruling issued May 28.

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The Supreme Court rejected a resolution passed by the Navajo Nation Council seeking to limit the use of Diné Fundamental Law by courts, and further stated that the council had been motivated by partisan political interest.

The law, enacted Feb. 20 by the council, was vetoed by President Joe Shirley Jr. but the council overrode the veto.

The law purports to prevent courts, except for the Peacemaker Division, from basing decisions on Fundamental Law except where the council has adopted that law as part of a provision in the Navajo Nation Code.

The court said abiding by the ban would have a profound effect on its ruling in Shirley v. Morgan, in which Shirley challenged the council's right to put him on administrative leave.

The council argued that there was no reason to review the use of Diné Fundamental Law. The Supreme Court disagreed, saying it needed to resolve this issue in order to rule on the administrative leave question.

Attorneys for the council argued that the courts have the wrong interpretation of what the council intended with that law. It was not to prohibit the court's use of Fundamental Law but simply to remove the "mandatory" duty for the court to use Fundamental Law, the council said. It could continue using Fundamental Law but it didn't have to.




That's not what the wording says, the high court noted. "The result is confusion among (the Navajo people) and in our courts," the ruling said.

The resolution passed by the council "purports to restrict the courts to using only statutory laws and prohibit the courts from considering and applying Fundamental Law."

It attempts to establish the laws passed by the council as Fundamental Law, the justices said. "Fundamental Law is whatever the council says it is."

The resolution also gives the council the power to change Fundamental Law whenever it so desires, the high court noted in its ruling.

Chief Justice Herb Yazzie, reading two decisions May 28 before an audience of about 150 in Veterans Memorial Park, said the justices were "amazed" at this statement.

Diné Fundamental Law was given to the Navajo people at the creation and "no human being has the power to change it," Yazzie said.

Partisan interests

The ruling states that it was obvious that the council wanted to control the type of law used in the courts because of the "negative impact the use of traditional laws have had on the council's partisan interests in recent court decisions."

By passing this kind of resolution, the council was trying "to encroach upon the independence of the Judicial Branch" which violates the doctrine of separation of powers, the court ruling states.

Referring to a friend-of-the-court brief submitted by Eddie Arthur, the court said "Fundamental Law represents the cumulative knowledge which has accrued to the Diné from the time of creation to the present. It represents the lessons which were learned as the People traveled through the underworlds and emerged into the glittering world as the bila'ashdia'ii."

The Supreme Court also disagreed with statements by attorneys for the council that the council is the absolute source of governance for the Navajo people.

"Quite frankly," the ruling states, "this court is startled" to find leaders of the legislative branch "believe that the government that they have been entrusted with really is not a Diné government and that Diné values, principles, laws, tradition and culture have nothing to do with our governmental structure."

"It is indeed sad to hear from our own leaders such a belief," the ruling states. "It shows disrespect for oneself and the Navajo People they represent."

The ruling pointed out that even in the U.S. government, many of the ideas and processes come through custom and precedent and are so ingrained "that many do not realize that they are neither statutes nor provisions of the U.S. Constitution."

"The ideal Navajo Nation government is not one that is governed by perfect individuals but one which is oriented toward the public interest and recognizes fully that the power to govern comes from the people," the ruling states.

The court referred to the turmoil in 1989 from which was born the three-branch form of government now in use. At that time, a deliberate decision was made to share leadership.

The Supreme Court said the council made a decision in 1989 to limit a president to two terms because of the governmental crisis they were facing with a chairman who had served for three terms.

The ruling then pointed out that there are no term limits on the speaker of the council.

"We have seen in the last few decades what occurs when, instead of thinking of the best interest in the people, one of the components (in the government) tries to assume a superior position," the ruling said, pointing out the tribe's experience in 1989 and the one facing the tribe this year "shows the extremes of what may occur."

Court: Council stifled reform

The reform laws approved in 1989 were meant to be temporary, the court noted. They were only intended to sort out the situation long enough to give the Navajo people an interlude to consider what governing structure would best suit their traditions and needs.

The council at that time formed a commission to look into government reform and the commission held meetings and came up with a number of ideas.

"However the council did not address any of the governmental reform measures presented to them by the Navajo people through the Commission," the court ruling stated.

Instead, the Commission was dissolved and replaced by the Office of Navajo Nation Government Development, which is supervised by the speaker's office.

By doing this, the speaker and the council "failed to carry out the people's mandate," the high court charged.

The council had a duty to act on these recommendations, and the court said it is "not inappropriate for other governmental entities to press the people's interests and hold the council to its promises."

In conclusion, the justices said it was important to clarify the issue of the source of governmental authority to avoid costly suits between the branches in the future.

"We affirm the power of the People to choose their form of government," the court stated in affirming the lower court's decision that the council exceeded its authority in putting the elected head of the people on administrative leave.

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