This YouTube video shows the beginning of the Navajo Nation Council’s May 30, 2014, debate over LEGISLATION 0131-14, which is the $554 million settlement agreement between the Navajo government and the U.S. government of a lawsuit filed by the tribe against the U.S. for alleged misuse of tribal trust funds.
The Council debated for about an hour on whether to add 0131-14 to its agenda. The Council vote on adding 0131-14 to its agenda was 12 in favor, 5 opposed. The Council then voted 9 in favor, 8 opposed to make 0131-14 the first legislation on its agenda.
The Council approved the settlement with a vote of 13 in favor, 3 opposed on May 30, 2014.
THE FOLLOWING IS THE BEGINNING OF THE COUNCIL DEBATE TO ADD 0131-14 TO ITS AGENDA. I POSTED HOW COUNCIL DELEGATES VOTED ON ADDING 0131-14 TO THE AGENDA AND HOW COUNCIL DELEGATES VOTED TO MAKE 0131-14 THE FIRST LEGISLATION ON ITS AGENDA.
Delegate Leonard Tsosie makes a motion to add LEGISLATION 0131-14 to the Council’s agenda as an “emergency” legislation, which means that it needs to go before the Council as soon as possible, which means that it does not need to go through the complete legislative process. The legislative process includes the electronic posting of all legislation to the Council’s website for five days of public comment, as well as review and action by the appropriate standing committees of the Council, as identified by the Speaker.
Delegate Mel Begay asks Navajo Justice Department Deputy Attorney General Dana Bobroff and Chief Legislative Counsel Levon Henry for the legal definition of “emergency legislation.” Begay says he’s concerned about the lack of a five-day public comment period for LEGISLATION 0131-14.
NOTE: At the time, Bobroff and Tsosie did not inform the Council that Bobroff was part of the legal team that negotiated the settlement. After the Council approved the settlement, Tsosie recognized Bobroff for the 24/7 work on the settlement.
Henry informs the Council that there are two references of Navajo law. Title 2 mandates that emergency legislation concerns a threat to tribal sovereignty that arises from pressing public need and requires final action by the Council.
And secondly he said the Navajo Nation Supreme Court addressed emergency legislation in a case between the Executive and Legislative Branches, President Joe Shirley Jr. versus Speaker Lawrence Morgan.
The Supreme Court ruled that tribal emergency procedures are exempt from emergency legislation, Henry said. The court also stated that the Council must show proof or a record of a genuine emergency of a threat to tribal sovereignty.
Code allows for emergency legislation and court states that a record or proof of an emergency of
Henry and I talked prior and I support this advice and that Supreme Court requires the establishment of why there is an emergency and that is a subjective determination, which should be done during the Council’s debate of LEGISLATION 0131-14.
Delegate M. Begay says he supports the legal advice and that LEGISLATION 0131-14 should be added to the Council’s agenda because it’s important to the nation and its future.
Delegate Lorenzo Curley says tribal sovereignty is where you can’t see the king and carried over here and somehow got to Navajo land. To me sovereignty means self rule, inherent ability to rule, govern ourselves and we have that. So in this context, what is at stake is our tribal resources and we have to exercise jurisdiction over them.
“Our resources are ours; they’re there for us to manage the way we see fit,” Curley explained.
Legislation 0131-14 is about our ability to manage our resources, which are being in trust by the federal government, which makes Legislation 0131-14 about tribal sovereign immunity and the threat to it if we allow “this” to continue, he emphasized.
NOTE: As I listened to the debate over 0131-14, I didn’t fully understand Curley’s debate, especially his reference to “this.” The Council’s debate on 0131-14 was a bit confusing because Tsosie only identified 0131-14 by number and not title and so no one, other than the Council, knew what exactly was being debated. Plus, there was no electronic copy of 0131-14 to reference because 0131-14 wasn’t electronically posted on the Council website since Tsosie was presenting it the Council as emergency legislation. By the way, when 0131-14 went before the Council, Curley presented it to the Council because he was the sponsor.
Delegate Dwight Witherspoon said he was satisfied with the legal advice from the tribal attorneys and he wanted a “legal opinion” instead of the reading of tribal law because he didn’t feel the same “threat” to tribal sovereign immunity by other delegates, which was why 0131-14 was before the Council without being electronic posted for the five-day public comment period.
There is no need for the Council to take action on 0131-14 today, Witherspoon said. The greater need is to follow the legislative process and allow this to go before the public, especially since this is a major agreement involving the U.S. and tribal resources.
Delegate Alton Shepherd calls on Speaker Pro Temp LoRenzo Bates to call for the vote on Delegate Leonard Tsosie’s to add 0131-14 to the agenda.
Bates says he’ll call for the vote after Tsosie responds to comments and questions.
Tsosie argues that objections to 0131-14 are premature and that some delegates support its addition to the agenda.
Once 0131-14 is added to the agenda, delegates can vote no on it if they feel it was not properly placed on the agenda, he added. And the question of whether 0131-14 is emergency legislation still needs to be heard.
Tsosie said transparency was brought up, which is “ironic” because by “shutting it down” the Council is not being transparent.
“The whole world is watching today so let’s tell the whole world what it’s about,” he said. “That’s transparency.”
And during the presentation on 0131-14, Tsosie said, evidence will be presented “that if we don’t act sooner that there is going to be dollars lost and the possibility of the settlement being jeopardized. And we all have different definitions of threats.”
He argued that 0131-14 was following the emergency legislation process and it was not “illegal.”
Delegate Katherine Benally, who is Resources and Development Committee chairperson, emphasizes that the urgency and emergency of 0131-14 has not been clarified and justified to her or to any of the delegates, especially since there is no wild land forest fire or huge flood or natural disaster.
“Our sovereignty is not stake,” Benally says. “There’s no emergency.”
Yesterday (May 29, 2014) the attorneys said that there was no emergency, she recalled. And so the Council needs to follow the legislative process, which calls for 0131-14 to be electronically posted on the Council website for the five-day public comment period and for the people to get informed
Benally also recalled how the Council always voted to have her hold public hearings on her legislation, which she would do.
She emphasized that she follows the legislative process and all the delegates need to follow the process.
“There’s nothing wrong with doing it the right way,” Benally said. “And I believe that is all some of us are asking. We’re not saying hide the information from the public. But giving them the five days is sharing the information with them. And that’s our policies and procedures. Please, let us respect that.”
Delegate Mel Begay calls 0131-14 a “great landmark action” that requires public education and comments, which would result in the Council’s unanimous support.
Chief Legislative Counsel Levon Henry notes that in response to Delegate Witherspoon’s question to the tribal attorneys about what constitutes a threat to tribal sovereignty and what is an emergency, there needs to be an understanding of existing tribal law and the tribal Supreme Court’s interpretation regarding emergency legislation.
Both the law and court interpretation lack guidance on how the Council puts emergency legislation on its agenda, Henry said.
He emphasized that one thing that is clear is that the Council must create a “public record” that insures that 0131-14 is emergency legislation.
“I say that without having to go into executive session,” Henry explained. “The advice that I give to you as my client is that if there is a situation where this comes before the court, we want to make sure that you as our client are protected in the action that you take. And so the only thing we can look to right now is what the Navajo Supreme Court said in Shirley v Morgan about ensuring that the public record is made to determine what is emergency legislation. In listening to the debate on putting this on the agenda, that’s a start. And as Ms. Bobroff and I have expressed to this Council that making a public record may be taken at the time that the legislation is brought before the Council once it’s put on the agenda.”
But Witherspoon is concerned that once 0131-14 is on the Council agenda that the delegates that support it, which was unanimous support yesterday (May 29, 2014), will be forced to vote in favor of it. So the question of creating a record of 0131-14 being an emergency legislation needs to be done now by all the delegates that support 0131-14.
And he said for those delegates that disagree with 0131-14 being placed on the agenda, we want the opportunity for all our constituents to get informed. I support the right of Indigenous people to have free, prior informed consent.
Witherspoon added that 0131-14 might be posted on the Council’s website now but what about the people that are not on the internet.
He said that he was looking for a news article on 0131-14 but he couldn’t find one.
“So I don’t know if one went out,” Witherspoon said. “So I don’t know if any of my constituents are informed.”
He noted that he valued transparency and accountability, which also are reasons why he wanted his constituents the opportunity to public comment on such a landmark agreement.
And since the settlement agreement is a “landmark accomplishment,” the Council needs to give it unanimous support, Witherspoon explained.
He emphasized, “And I don’t see the threat; I don’t feel the threat by colleagues do. And that by waiting the five-day comment period that somehow, someway, ee’yah’, it’s going to be lost. I also wanted the Department of Justice to go on record, which is essentially the record that we are trying to establish.”
Justice Department Deputy Attorney Dana Bobroff says that she understands the “frustration” over the concern of whether this is a threat to tribal sovereignty.
Bobroff explains that there are not many areas in tribal law and court decisions that tribal attorneys may point the Council to as “established law” regarding emergency legislation.
“So we’ve got a vacuum of law right now,” she says. “What we’re trying to do is put forth to you what the status of the law is and tell you – and Levon and I are still in agreement – this is still a subjective decision for the Council. To assist you in making the decision, I think that one thing is what Delegate Witherspoon pointed out. What is sovereignty? We are not talking about a waiver of sovereign immunity. There is no waiver of sovereign immunity in this legislation. We are talking about sovereignty.”
Bobroff references Black’s Law Dictionary and explains that sovereignty is defined as how government governs its people and its land and there is very little in tribal law and tribal Supreme Court cases that talk about sovereignty in the Navajo context.
Title 2 of the tribal code states that the Council is the governing body and the Council has the responsibility to start defining what sovereignty means in the Navajo context, she explained.
“The next thing that is missing, which is also problematic, is that there is no definition of emergency,” Bobroff says. “What do you mean exactly is an emergency? Does the emergency have to be today, tomorrow? What’s the time frame? No definition.”
She adds that another problem is that there is a lot of attorney-client information that needs to be share for a full discussion on whether there’s a threat to sovereignty.
Bobroff adds that she’s also thinking about what she can disclose without asking the Council to go into executive session while she puts some things out for the Council to consider.
She recalled that 0131-14 is about litigation that the prior Council asked the attorney general to file against the U.S.
“This is not defensive litigation,” she emphasizes. “The Navajo Nation sued the United States in federal court.”
And Bobroff recalled when the tribe did that, the tribe agreed to follow the rules of the court, which issued confidentiality and protection order that must be honored.
These are some of the discussions that can be had by the Council to make this decision but the chief legislative counsel and she cannot point at specific law that clearly defines emergency legislation, she reiterated.
Bobroff said, “I agree with Mr. Henry that the best place to develop that record is when you are debating the legislation.”
Delegate Russell Begaye recalls the Council’s debate over adding 0131-14 to its agenda, which involves the Bureau of Indian’s alleged mismanagement of tribal trust funds and the lawsuit that the tribe brought against the U.S. Interior Department for the alleged misuse of tribal trust funds.
Begaye is also concerned about 0131-14 not going through the five-day public comment period.
He ecalled how the current Council created a Task Force on the litigation of the alleged misuse of tribal trust funds by the BIA and negotiated a $554 million settlement of the tribe’s lawsuit, which is “the largest sum of any tribe in the history of this country. And we’re talking about taking this money that we worked hard for.”
BEGAYE ABRUPTLY ENDS HIS STATEMENT AFTER DELEGATES CALL FOR SPEAKER PRO TEMP BATES TO REMIND BEGAYE THAT THE DEBATE IS NOT ABOUT 0131-14, BUT ABOUT ADDING IT TO THE COUNCIL.
Delegate Jonathan Nez acknowledges the audience in the Council gallery and on the “world-wide” web before saying, “I think the cat is out of the bag.”
NEZ IS REFERRING TO BEGAYE’S STATEMENT THAT THE TRIBE HAS NEGOTIATED A $554 MILLION SETTLEMENT OF ITS LAWSUIT AGAINST THE U.S. FOR ALLEGED MISUSE OF TRIBAL TRUST FUNDS.
Nez then reminds Speaker Pro Temp Bates that as soon as the Speaker or Speaker Pro Temp certifies legislation and it’s not stamped “confidential” that it becomes a public document.
“Someone can go down to the Records Department and get a copy of this document,” he emphasizes. “The cat is out of the bag. Those of you that want to wait and go through the process; we might be jeopardizing our relationship or whatever we’re agreeing to (in 0131-14).
“I think we have no choice but to consider this today because under 225 (of Title 2 of the tribal code), it also states that access to contracts or papers shall be provided to the public by the central Records Department as provided for by the Navajo Privacy and Access to Information Act.,” Nez explains. “It’s public record.
“So either we deal with now or this is going to be out there and we might jeopardize whatever we are all agreeing to,” he reminds the Council. “I think we just put ourselves in a bind. We do have to consider this today. There’s no way around this. So with the introduction of this legislation, it became public record. So I think we need to be able to vote green. Let’s get this process moving along cuz again we’re jeopardizing what we all agreed to.”
SPEAKER PRO TEMP BATES CALLS FOR THE COUNCIL TO VOTE ON ADDING 0131-14 TO THE AGENDA.
COUNCIL VOTE IS 12 IN FAVOR, 5 OPPOSED
TWELVE DELEGATES VOTING “GREEN/YES”
Charles Damon II
FIVE DELEGATES VOTING “RED/NO”
DELEGATES NOT VOTING
LoRenzo Bates was present but as Speaker Pro Temps, he does not vote unless there is a tie vote
Joshua Butler, absent
Kenneth Maryboy, absent
Speaker Johnny Naize, absent
Leonard Pete, absent
Roscoe Smith, absent
David Tom, absent
Duane Tsinigine, absent
After the Council vote to add 0131-14 to the Council agenda, Delegate Leonard makes a motion for 0131-14 to be the first legislation on the Council’s agenda.
COUNCIL VOTE IS 9 IN FAVOR, 8 OPPOSED
NINE DELEGATES VOTING “GREEN/YES”
EIGHT DELEGATES VOTING “RED/NO”
CHARLES DAMON II
DELEGATES NOT VOTING
LORENZO BATES was present but as Speaker Pro Temps, he does not vote unless there is a tie vote
Joshua Butler, absent
Speaker Johnny Naize, absent
Leonard Pete, absent
Roscoe Smith, absent
David Tom, absent
Duane Tsinigine, absent