Navajo Council on bill for Kayenta Township to waive sovereign immunity


NAVAJO COUNCIL DEBATNG AMENDMENT TO LEGISLATION 0359-17: An Action Relating to Resources and Development, Law and Order and Naabik’fyati’ Committees; and the Navajo Nation Council: Authorizing and Approving the Kayenta Township Commission to Form Wholly Owned Instrumentalities under Navajo Law; Extending the Navajo Nation Privileges and Immunities to the Formed Instrumentalities; and Authorizing the Kayenta Township Commission to Waive the Instrumentalities Privileges and Immunities, Including Limited Sovereign Immunity and the Requirements for Tribal Remedies Exhaustion (2/3) SPONSOR: Honorable Nathaniel Brown CO-SPONSOR: Honorable Kee Allen Begay, Jr. CO-SPONSOR: Honorable Herman M. Daniels CO-SPONSOR: Honorable Otto Tso
(m) Honorable Edmund Yazzie (s) Honorable Tuchoney Slim, Jr. (v)
10/17/2017 – Motion to Table No Later than 30 Days; (M) Honorable Edmund Yazzie; (S) Honorable Jonathan Perry; (V) 11 in Favor, 08 Opposed (Speaker Bates Not Voting)
There is one (1) Pending Amendment; (M) Kee Allen Begay, Jr.; (S) Otto Tso; Vote Pending
Amendment 111 1. On page 5 of 6, line 16, make the following amendments: Authorized to waive provide a limited waiver of sovereign immunity 2. On page 5 of 6, line 18, insert new language after “the” Navajo Nation President and 3. On page 6 of 6, line 17, add new paragraph G: G. The Kayenta Township Commission shall have no authority to waive its own sovereign immunity or the sovereign immunity of the Kayenta Township. 4. Renumber or re-Ietter succeeding paragraphs or sections accordingly, if necessary. This amendment shall supersede inconsistent language contained in any other committee amendment, which shall be conformed to the intent or language of this amendment. The Office of Legislative Services with notice to the sponsor(s) of the legislation, is hereby authorized to make necessary grammatical changes.

KAYENTA TOWNSHIP DIRECTOR YAZZIE, This legislation will push us to area where compete. Right now $47,000 in debt. this legislatin will create jobs but we don’t know what enterprises we’ll create which is why its general. Maybe we could go into gaming with Navajo Nation. Kayetna Chapter passed resolution supporting this legislation.


DELEGATE AMBER CROTTY says still not clear and on page to become business that has Indian preference . This about overeign immunity and i would feel more comfortable and i want kayenta township to be successful. amendment would answer some questions.



DELEGATE EDMUND YAZZIE urges Council to vote green on bill cuz it would allow Kayenta Township to grow, create jobs especially when Kayenta coal mine about to close.

DELEGATE DWIGHT WITHERSPOON says tribal justice department memo has list of concerns regarding waiving of sovereign immunity and citing Supreme Court denying appeal by Window Rock School district appeal regarding decision that WR school district has to comply with Navajo employment preference. and so in this bill there is no provision regarding labor issues. and when waive Navajo laws then can go outside to other legal jurisdiction to resolve issues.

DELEGATE LEONARD PETE says talking about precedence, blazing trail.

DELEGATE NATE BROWN says that Resources & Development Committee had Kayenta Township Sept. 27, 2017, remove language from bill to go to outside courts to resolve issues. Kayenta Chapter passed bill supporting this bill. we are trying to lay down foundation for sustainability. most time townhip trying to stand on on. if want to open business in township it will take a week. but if go through tribe, two to four years. our pple that try to bring business give up. township thinking outside box. former township commissioner said township create enterprises/businesses that have competitive salaries. keyenta township obtained grant to create garden and did. we are trying to beautify kaayenta cuz have a lot of visitors. have kayenta township stakeholder meeting and had more than 60 pple attend regarding theft to homes. went to chapter. township meeting on revisions to tribal criminal law with tribal attorney general and chief prosecutor.

DELEGATE AMBER CROTTY question of privilege, when council debating authorize limited waiver of sovereign immunity to entities that township creates who are the entities that township ill create.

KAYENTA TOWNSHIP DIRECTOR YAZZIE says would be with Township Commission to authorize limited sovereign immunity and primarily for transfer station so have contract with Indian health services. with limited sovereign immunity, contract cover duration, choice of law, damage that comes to enterprises. once compile send to president office and speak’s office to review for 30 days, similar to Navajo Tribal Utility Authority, they give 30 day notice before entering into contract.

DELEGATE OTTO TOS says Council has to take a chance. He blames Navajo justice department, especially Attorney General Ethel Branch for standing in the way of creating economic development and job for children.

DELEGATE TOM CHEE asks about adding amendment about proposed changes to 0359-17. we don’t want to totally ignore Attorney General which has legal expertise. And this language from NDOJ would provide some comfort to delegates with questions regarding Council giving authority to Township to give limited waiver of sovereign immunity to enterprises/businesses it creates in the future.

AMENDMENT 2, clarify instrumentalities to enterprises, entities

DELEGATE LEONARD TSOSIE says support amendment. He looked up instrumentalities especially under federal law. amendment to make bill consistent. Look at Supreme Court cases and there is discussion about defintions of enterprises and instrumentalities. And this about protection that is consistent with Navajo teachings. Also talking about waiving sovereign immunity which not really about creating jobs, econiomic development. And maybe in future the courts could look at council discussion to determine what was the intent of council in granting township power to waive sovereign immunity for enterprises it creates. and in all court cases regarding NGS and Peabody, the court has not ruled in favor of tribe and that tribe has no authority over them.

DELEGATE AMBER CROTTY questions amendment, page 1-number 13, prior written notice to president and speaker i’m uneasy with council providing this ability for township to create entities and waive sovereign immunity so why is council not being notified. council here to hold up laws so we should be informed and it is our power to waive sovereign immunity.

ATTORNEY GENERAL BRANCH says his written to clarify language where only notice to president or to speaker so amendment was be clear and always include president and speaker. To be clear the council is giving its authority to Kayenta Township.

DELEGATE RAYMOND SMITH says he agrees with Delegate Crotty.


DELEGATE DAVIS FILFRED says he supports bill and amendment cuz would be model for large growth centers such as Chinle, shiprock. we have been certifying chapters to cut umbilical cord to be self sufficient but still looking to nation. so maybe this model would help them be sustainable. compliment Kayenta Township for treading own way and turf. They shud realize we are fighting over Undesignated, Unreserved Fund Balance.

DELEGATE ALTON SHEPHERD says he understands bill and amendments would change bill. remember kayenta township crated as economic engine and council created two different sovereings question still remains we are creating two sovereign. we were elected by people and we are giving township to be mini-council. and argument now is give them that rainbow. we did that with NTEC to work towards section 17, also Naataani Development and Navajo Oil and Gas has section 17. so if do this then get ready to give to chapters. understand want to give enterprises federal 8A status so can contract with Indian health services. look at window rock school district lawsuit and how council established contract for WR school district to come back to Navajo courts. and township could return each time with request for waiver of limited sovereign immunity for each of its enterprises. and economy and taxes remains with township but council retains power to waive limited sovereign immunity.

DELEGATE AMBER CROTTY says the amendment should state that Council should be notified. President doesn’t have authority to waive sovereign immunity. And people should also be notified when Council’s sovereign immunity being waived and also that people be notified through public notice.

DELEGATE TOM CHEE who is holding amendment says defer to NDOJ that notification also goes to Council.

ATTORNEY GENERAL BRANCH says amendment could include Council but Council could not stop Township from waiving sovereign immunity.

DELGATE TOM CHEE ask for legal interpretation from English to Navajo. I understand amendment that since granting limited sovereign immunity waiver to Kayenta Township and that notify president and speaker and have good faith that speaker notify Council. And we should not deny Township authorization.

DELEGATE OTTO TSO says Council granted its waiver of sovereign immunity to Navajo Transitional Energy and Navajo Oil and Gas so why not give it to Township.

DELEGATE AMBER CROTTY says disappointing that leaders don’t understand importance of sovereign immunity so can’t support amendment.

DELEGATE RAYMOND SMITH wonders if amendments changing bill. want to make sure that e are supporting endeavors of township.

ATTORNEY GENERAL BRANCH says with this amendment not does anything. it provides notice to president and speaker when township waiving sovereign immunity for enterprise it would create in  the future.

DELEGATE OTTO TSO says speaker’s office is notifying Council. he gets emails. if you as delegate not getting info, you tell speaker and staff to get information. i see Oil and Gas documents and NTUA documents.

DELEGATE LEONARD TSOSIE says if look at Title 1, section 105, there are procedures when suing and says notify president and attorney general and added speaker. recommend stay with language.

DELEGATE AMBER CROTTY, question of privilege, ask Chief Legislative Counsel to cite in Navajo law who has authority to waive sovereign immunity.

DELEGATE JONATHAN PERRY says discussion at Resources & Development Committee about committee’s recommendations to Township to amend plan of operation.

TOWNSHIP DIRECTOR YAZZIE  says when drafted bill was to amend plan of operation and tribal justice department changed to what have in front of council. In april 017, sent to laTonya Johnson to respond and when RDC met there was memo and six month duration to work with tribal justice department. now have different NDOJ and different memo so insufficient time to respond and decided to move forward with it to see what happens. when went to RDC we were ready to discuss intent of bill but when bill hit the floor, RDC went into executive session with NDOJ and voted on bill and amendments. so no privilege to go over legislation and RDC voted, 0-4. reason why RDC voted like that. looking at background, that was intent was to amend Township plan of operation.

DELEGATE DWIGHT WITHERSPOON says we have other enterprises such as NTEC, Navajo Oil and Gas, to make waiver for loans from outside entities. so what about Naataani Development Corporation cuz wanted to establish other entities that also want to participate in their waivers. Share what delegated to Naataani Corporation that is different from what here for Township.

DELEGATE LEONARD PETE says not like chasing rabbit but catching greasy pig. What was approved for Township plan of operation? what can they do and not do? RDC recommended that put in plan of operation so let’s deal with plan of operation. Has plan of operation been updated?

CHIEF LEGISLATIVE COUNSEL says Delegate Crotty asked who has authority to waive sovereign immunity and that is in TITLE 2, sections223 and deals with contracts, not waive unless by two-third vote of Council. and corporation law allows that too.l

DELEGATE AMBER CROTTY ask if any place for president to waive sovereign immunity. And ask for written statement of Delegate Tso to speaker about lack of information to Council regarding Arizona Indian Day. (DELEGATE TSO OOMPLAINED DURING NAABI MEETING THAT SPEAKER DIDN’T TELL DELEGATES ABOUT AZ INDIAN DAY AND SO HE DIDN’T KNOW THAT TUBA CITY HOSPITAL MEETING WITH AZ LEGISLATORS AND THEY WERE ASKING WHERE HE WAS.)

SPEAKER says he overlooked notifying Arizona delegate about Arizona Indian day.

CHIEF LEGISLATIVE COUNSEL say there is no place in Navajo law that president or speaker waive sovereign immunity but this amendment is only notice. Not asking president or speaker to authorize. That can only come from Council.

ATTORNEY GENERAL BRANCH says article of incorporation for Naataani corporation went under substantial review and know what it is doing and Councl approved. Council set perimeters for naataani waive but this bill just authorize Township to waive. and notice is just notice from Twonship and Council could not change what Township waiving.

DELEGATE WITHERSPOON says response not address waiver applying to other entities under Naataani Corporation but Naataani entity under tribe and funds for benefit of tribe. this authoritzation for township has no benefit to tribe so in mind the authorization to township to give limited waiver of sovereign immunity, i can support. but for them to create new entities and enterprises and for Township to give waiver of soverign immunity to them I do not support. Those waivers that Townsip want to give to enterprise/entities should return to Council. I do not support.

DELEGATE RAYMOND SMITHI says this amendment getting very confusing.

DELEGATE NATE BRWN says bill is giving LIMITED WAIVER OF SOVEREIGN IMMUNITY and for Council to extend limited waiver to entities and enterprises when created by Township in future. in Navajo corporation code, it clearly states we cannot create. we want to show council that we are capable of doing this and creating companies under township and extend to transfer station and animal shelter. right now township cannot support transfer station and animal shelter. and if lawsuit, transfer station would be protected and council would be safe. corporation code is in legislation. if we stay the same how are we going to grow. we are cornered and this only way to grow.


DELEGATE ALTON SHEPHERD says look at legislation PAGE 4 OF 6, and reading of code by Delegate Brown and there is process. and next council deal with this. again council is taking self out of loop. i wold rather have bill return fine tuned so what talking about and challenges. but there are a lot of authorizations for Kayenta Township and all benefits to Township. there are Navajo pple that contribute to economy. we should discuss 8A.

DELEGATE TSOSIE says he was looking at amendment to limit waiver. understand some delegates say give it chance and others more cautious. i begged Delegate Brown, as sponsor, to limit waiver of sovereign immunity, which protects tribe and assets. and this happened with Window Rock District School lawsuit. ask sponsor, Delegate Brown, to retract bill.

DELEGATE TSOSIE says i would be willing to support if put sunset clause in but cannot support cuz language in findings so creates confusion. so hope Township understands why not support and Township return with legislation that only address transfer station and animal shelter. we shud be specific about what delegating.

DELGATE CROTTY says she was hoping that chief legislative counsel help with amendment since asking for broad oversight and amendment only apply to transfer station and animal shelter. and Township wants Section 8A status but tribe has so is waive of sovereign immunity needed?

TOWNSHIP DURECTOR YAZZIE says township can create enterprise but cannot cloth sovereign immunity and open Township, enterprises and Council to lawsuit. we are asking for council to delegate limited waiver of sovereign immunity. and when go into contracts with indian health, the contract will have details. contracts need limited waiver of sovereign immunity. so that is what we are asking for.Delegate Brown says Council can create enterprises with limited waiver of sovereign immunity. and questions being asked about chapters. we have fire department and township appropriated $300,000 for fire department to cover nearby chapters. $300,000 comes from local taxes. Animal shelter with veterinary services also to other chapters. Come to Window Rock for services but locals know what services they need. Since 2008, transfer station operating $200,000 deficit but know services needed locally and for other chapters. goes back to being business minded. longer debate, longer prolong business development.

DELGATE BROWN says tribal enterprises keep returning to council for funding. Hopi tribe allowing its business pple to make decisions. This bill would take politics out of business. Youth came and said he doesn’t like going to chapter to ask ofr scholarship because made to feel uncomfortable. we are asking for waiver of sovereign immuity for five years.

COMMISSIONER EDWARD SEATION says been in real estate for over 30 years and each of commissioners are business pple and came from private businesses. they returned to Navajo and they didn’t have to. i have been conducting business off rez for 30 years.








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