IT’S DAY 3, JAN. 24, WEDNESDAY, OF NAVAJO COUNCIL WINTER SESSION AND COUNCIL ON SECOND BILL.

LEGISLATION 0348-17: An Act Relating to Law and Order, Resources and Development, and
Naabik’fyati’ Committees and Navajo Nation Council; Asserting Sovereignty and taking over Primary Regulatory Authority from the Federal Government, Office of Surface Mining and
Reclamation Enforcement over all Coal Mining Lands located on the Navajo Nation, Enacting a
Waiver of Sovereign Immunity; and Establishing New Sections in Title 18 at 18 N.N .C. §§ 1701
ET SEQ (2/3) SPONSOR: Honoroble Benjamin Bennett

TONI FLORA – BACK IN 1977 CONGRESS PASSED SURFACE MINING AND RECLAMATION ENFORCEMENT. 1987, CONGRESS CALLED FOR STUDY ON WHICH TRIBES ABLE TO HAVE PRIMACY AND FOUND NAVAJO NATION HAS CAPACITY TO TAKE OVER SMRE. NAVAJO EPA HAS PRIMACY. PRIMACY MEANS INCREAED CONTROL OVER REGULATING, PERMIT, INSPECT AND FINAL SAY IN INSPECTIONS, ENFORCE OUR PERMITING DECISIONS AND VIOLATES ISSUED BY COURTS, 100 percent of Navajo program federally funded. currently states only receive 50 percent and $8.5M for Navajo and so Navajo could receive more funding. But Navajo must waive sovereign immunity.

NAVAJO OFFICIAL, this primacy important cuz under federal government control. If pass and becomes final then get primacy and gives us sovereignty over own laws and enforcement and brings funding and jobs. Does not take Navajo funds and get about $2M annually and probably grow. I have good staff, all professionals. Many of them have been out in field in reclamation and enforcement. We will be responsible for reclaiming Mother Earth cuz when have outside reclaim, things get cloudy but we live here so I feel we would be closer to rebahbilitating Mother Earth. This program is not pro-mining or anti-minng. all would we would do is regulate. that is all lwe would do. Navajo Nation would be first tribe to obtain primacy. I have heard around country that Navajo organized and lot of money and that Navajo first in many areas. I think we have one of the best political systems in place.

DELEGATE LEONARD TSOSIE, selling sovereignty for $2M. And this not primacy? Who has final review? its federal court. AMENDMENT, after word ACT, line 13, and strike all line 14, and on line 15, up to period. This removes Federal Judicial Review.

DELEGATE WITHERSPOON, if all cases in Navajo court then what funds come to prosecute. funds for prosecute? Prosecutors outside Navajo? Enforcement – how enforce federal surface mining regs? yes may get primacy, but subject to review but my concern is any additional liabilities, costs for prosecution and enforcement.

DELEGATE EDMUND YAZZIE, on amendment, i also asked if strike out fedral 9th Circuit then ID who has full jurisdiction if goes to court. Maybe ID WR district court. And will Tsosie amendment endanger legislation?

DELEGATE TSOSIE, in reviewing this bill and federal bill, there is no promise of dollars so tell where exactly it is for enforcement and prosecution and if no money then dangling in front of us and taking our Rainbow (Sovereignty). Amendment says disputes goes to Window Rock court. If don’t approve this amendment then goes to 9th Circuit Court and court tell our courts that did wrong. and who are federal judges, they are poltical appointees and they don'[t like Indians. There is concern that amendment will jeopardize this bill and I’m sure sponsors will say yes. but what is more important? Our Rainbow or federal review by federal courts. To Delegate Kee Allen Begay, i left Line 12, citizens suits so we would still allow CITIZENS’ LAWSUITS but not under federal law.

DELEGATE NELSON BEGAYE, if u understood prayer by Delegate Steven Begaye then you understand why I seconded Delegate Tsosie’s amendment which is to protect Navajo and stand up to federal government and say we are sovereign.

DELEGATE WALTER PHELPS, I have question and ask agent to expand and make comparision and understand only under 401 but we are discussing Surface Mining Coal Reclamation Act, it is a federal law. We have primacy through AML, Abandoned Mines. So ask agents what kind of primacy we have. Also share that we are in communication with Congress to amend federal law so don’t have to waive sovereign immunity. We are very close in working with Congressman Halleran. I understand asserting primacy and 2019 very close.

CONTRACT ATTORNEY, TONI FLORA, like to address issues in questions, regarding primacy of AML, I don’t know. I didn’t serve very long at tribal justice department. There is federal funding.

DELEGATE WITHERSPOON, for law enforcement, federal funds for personnel but also need vehicles, communication, laptops, dollars for fuel, supplies, uniforms, ammunition, training; we don’t get that. so question about enforcement and prosecution. you saying yes, 100 percent, but not for other federal programs, such as Ramah. I am not confident that Navajo dollars would not be used. I know that prosecution not done by tribal justice department; its under federal employees. And if dollars not going to prosecution then not 100 percent.

DELEGATE ALTON SHEPHERD, this bill requires two-third vote so means amending Navajo law.

CHIEF LEGISLATIVE COUNSEL LEVON HENRY, if waiver of sovereign immunity removed then don’t need 2/3 vote.

SPEAKER BATES, page 3 of 82, line 24, also talks to waiver and as indicated by Levon dk where else waiver cud be.

DELEGATE SHEPHERD, going back to intent of bill, waiver of sovereign immunity requires 2/3 vote, and so if approve amendment would that change intent of bill.

CHIEF LEGISLATIVE COUNSEL LEVON HENRY, not change intent cuz only changing vote requirement.

DELEGATE SHEPHERD, i believe it does change intent cuz legislation nullified cuz part of legislation was to get waiver so if vote on and remove then legislation for primacy sits there.

DELEGATE DAVIS FILFRED, this bill to receive 100 percent of federal funding, but also request copy of power point presentation by attorney. i do support this bill cuz we as nation would be doing our own coal mining.

DELEGATE TSOSIE, it’s good that Delegate Witherspoon used federal public safety contract because federal funding has been inadequate for years. We are not getting 100 percent of funding cuz no funds for prosecution or going through courts. if there was then would say if Indian tribe approve then would say this amount for Indian courts. $2M is only for administrative matters. The agents of sponsor, Delegate Ben Bennett, are not giving full answers. And want to thank Delegate Nelson Begaye for standing with me on amendment and recognizing prayer this morning by Delegate Steven Begay. And i agree that his prayer supports what we are doing here and it’s not to give away our Rainibow, our sovereign immunity. i do feel blessed today. i witnessed goodness coming out of it. It is a defeat of people’s prayer if pass this bill to give our power to federal courts. Waiver of sovereign immunity is only for review of federal court review of tribal court decisions. we are allowing citizens’ lawsuit so allow waiver that citizens’ lawsuit. This amendment allows but only in tribal court without review by federal court. So Navajo citizen that has compliant about something allowed go to tribal court but not into federal court. This is over 80 pages and tried to catch everything. on the question/comments by Delegate Filfred, it would have been good to see document on total cost to implement this program because feel it would be $20M. And federal government says give us $2M. We had experience with Bears Ears where gave whole thing and then yanked back. It’s interesting, when read title, Asserting Sovereignty but we are orphaning sovereignty. I hope federal government understand and listening on Ustream and when pple prayer it is a different thing.

SPEAKER BATES SAYS DELEGATE SHEPHERD BRING UP POINT ABOUT WHETHER INTENT OF BILL CHANGES.

CHIEF LEGISLATIVE COUNSEL HENRY, amendment u are considering talks about waiver and federal court review. there are several sections in legislation and amendment take away sovereign immunity and allows for citizens’ suit but only in tribal court. Delegate Shepherd asked if amendment passes, does it change intent, which is regulations of surface mining. And it will change because to pass bill one of federal requirements is waiver for federal court review. So if amendment passes then lead to other issues and tribal justice department can answer.

NDOJ ATTORNEY, federal solicitor said yes changes if remove federal court review and Navajo would not be granted primacy.

DELEGATE PHELPS, what has happened when tribal court decision upheld by federal courts?

DELEGATE SHEPHERD, we need to strengthen sovereignty cuz federal government has authority over states and when take over federal power then Navajo has responsibility. For us to take on responsibility we must accept contract. If look at general contractor to build house, there are subcontractors, which also hold same responsibility. And sometime forget that we also have to hold ourself responsible. And I don’t believe we have to go court all the time. Since Hweeldi, we have strengthened sovereignty and so are we willing to accept waiver and hold subcontractor, which is AML, to be accountable. But if amendment passes, then this primacy just sits there.

DELEGATE LEONARD TSOSIE, my amendment, please understand, our amendment, sorry Delegate Begaye, only prevents, not authorize federal court review so not strike language on page

SPEAKER BATES ANNOUNCES RECESS TO GO OUTSIDE TO ACKNOWLEDGE YEI BEI CHEIS, MAKE OFFEREINGS AND PRAY. IT IS 12:49 PM

COUNCL RECONVENES AT 1:05 PM

DELEGATE RAYMOND SMITH, states have to waive sovereignty and this waiver is for benefit of tribe. When Navajo Generating Station leaves, we need this otherwise they can leave NGS in any state they want.

DELEGATE AMBER CROTTY, make observation and received copy of power point and concerned about comments cuz not fully grasp what doing here and how bill impact tribe so let sponsor know and agents know that Navajo Oil and Gas has nothing to do with what doing here. Cleanup of NGS is under federal guidelines so concerned how delegates putting together arugements to support or oppose. but specifically why is this provision in law in 1997 for tribes and state to waive sovereign immunity to go into federal court. We have had since 1987 to change law. we are saying ready but provision to go to federal court. How has that waiver law impacted states and cases. Have we set up system for that type of appeal. I’m not content with law and moving forward with this i want to understand all issues surrounding it. And if other programs doing this then why is Council not informed by email or other communication. Ask agents to answer these questions.

DELEGATE LEE JACK, i support legislation but oppose amendment. It’s time we have primacy so we have control over surface mining. This came before Council before and it was thoroughly discussed so we have to move forward with it.

TRIBAL JUSTICE DEPARTMENT PAUL SPRUHAN, i have been in federal court on behalf of tribe and regarding question of Navajo cases going to federal court. in jurisdiction cases, whether we want or not, lawsuit filed that we don’t have jurisdiction. so question is how get around sovereign immunity by arguing not exhaust tribal remedies. Whether agree or not, outside believes can tell us scope of what we can do. We can ignore or go over there and tell them that this is our sovereignty. Some agree in Window Rock District Court appeal to federal court that Navajo labor laws does not apply to them. the difference here is tribe approve to be in federal court,  not tribal justice department so saying Please sue us in federal court. We have gone into federal court voluntarily such as Urban Outfitters in using Navajo name and got good settlement and when federal court took items out of canyon de chilly and that case ongoing. so tribe has gone into federal court in certain circumstances. so question before you is whether you want to go into federal court voluntarily.

CONTRACT ATTORNEY TONI FLORA, yes Navajo Oil and Gas different from primacy and cleanup of NGS under this primacy would be only for Peabody Kayenta Mine. As program, we don’t like this clause because states are not required to go into federal court so we are working with Delegate Phelps to get that law changed and there are no other tribal programs that require this. Navajo EPA says different. And program would have to request funding for litigation, which was done for building.

COUNCIL VOTES ON DELEGATE TSOSIE AMENDMENT TO REMOVE TRIBE’S WAIVER OF SOVEREIGN IMMUNITY AT 1:31 PM, 10-11, SO AMENDMENT FAILS

DELEGATE CROTTY, comment on Delegates making incorrect statement so what does that mean cuz it will impact legal strategies not just mining but everything we do and for delegates not to debate and force the debate. Do we have immunity? when we put people in jeopardy when Delegates ill informed and when ask basic question that cannot be answered. Immunity from making false statements on floor that the are basing votes on? Are we covered by that? By not ready bill or federal laws? We have a duty here to uphold Navajo laws and to not fully understand, I have serious concerns.

ATTORNEY GENERAL ETHEL BRANCH, debate Delegates is in ordinary course of capacity so don’t think Delegates exposing selves to liability in official capacity. Question is more for standards of legislators preparing for votes and not seen where legislators exposed to liability when not prepared.

QUESTION OF PRIVELEGE, DELEGATE KEE ALLEN BEGAY, i would only have chapter telling me that i am not doing what I am suppose to be doing here on council floor.

QUESTION OF PRIVELEGE, DELEGATE TSOSIE, understand Delegate Crotty’s concerns because Delegate Smith made erroneous statement that states waives their sovereignty. Question is who is making the statement and to integrity of Council proceedings.

POINT OF ORDER, DELEGATE SMTIH, regarding singled out, I was reading from Attorney Toni Flora, that states also have to waive sovereign immunity.

SPEAKER BATES, THERE WAS QUESTION POSED BY YOU, DID YOU GET ANSWERED. CROTTY ANSWERS YES. TO APPROVE THIS BILL REQUIRES 16 “YES” VOTES. THERE IS ALSO QUESTION OF TAKING UP DELEGATE WITHERSPOON BILL THAT WAS TABLED UNTIL MORE THAN 22 DELEGATES ON FLOOR.

COUNCIL VOTE ON 0348-17 AT 1:43 PM, 14-8