Who Won Indian Law and Policy 2014? First Round Bracket — 6 of 8

Second part of the third category, people and parties.

# 2 Justice Sonia Sotomayor

Everyone’s favorite Supreme Court Justice. Wrote scholarly and compelling concurrence in the Bay Mills matter. Wrote amazing dissent in the affirmative action case.

v.

# 15 McAllen Grace Brethren Church

Won Fifth Circuit case, along with Lipan Apache members, which held that the Eagle Act regs might violate RFRA.

# 7 Hon. William Canby

Just published the sixth edition of his legendary Nutshell. He’s legendary too.

v.

# 10 Frank Pommersheim

Professor, lawyer, tribal judge, poet. Posted all of his tribal court opinions online, an absolutely incredible resource. Still stirring things up in South Dakota.

# 3 Hon. Keith Harper

Confirmed as Ambassador to the United Nations Human Rights Council. Went right after violence against Indigenous women and girls.

v.

# 14 Chris Deschene

An amazing year, so far unsuccessfully challenging the Diné language requirement to run for tribal office at Navajo.

# 6 Robert A. Williams, Jr.

Probably should get his own category that we could parse out through the years, but this year was on Moyers. Force of nature.

# 11 Dean Stacy Leeds and Prof. Angelique EagleWoman

Yeah, time passes quicker than I thought. Turns out their great book, “Mastering American Indian Law,” was a 2013 masterpiece. Ok.

The real # 11 — Authors of “Structuring Sovereignty”

My favorite book of 2014, Structuring Sovereignty is a wonderful scholarly survey of modern tribal constitutions. Melissa Tatum, Miriam Jorgensen, Mary Guss, and Sarah Deer (a second appearance in the game).

Update in Navajo Nation Election Dispute

Here is “Navajo Nation presidential candidate suffers setback after ruling” reporting that the Navajo President vetoed the bill that would have allowed Chris Deschene to remain on chris-deschene-portrait-2the ballot.

Also, “Navajo Language Fluency Still a Requirement for Tribal Candidates.”

On the motion for contempt (here), the Navajo Supreme Court’s website states:

The Supreme Court has set a hearing for the Petitioners’ Motion to Hold Respondents in Contempt of Court in Tsosie and Whitethorne v. Navajo Board of Election Supervisors and Navajo Election Administration, No. SC-CV-68-14. The hearing is scheduled for 10 a.m. on October 31, 2014, at the Chinle District Court. See order. The Supreme Court has also set hearings on October 31, 2014, at the Chinle District Court on costs and fees in SC-CV-57-14 and SC-CV-58-14 at 9 a.m., and in SC-CV-68-14, at 1 p.m.

The Navajo SCT previously issued an opinion on the merits here.

Christopher Chavis Guest Post on the Chris Deschene Election Qualifications Controversy at Navajo

Christopher Chavis is a 3L at MSU College of Law, and a member of the Lumbee Nation.

Like many other localities on the North American continent, the Navajo Nation is in the midst of an election year. And like many localities, the Navajo Nation is also faced with the contesting of a candidate’s eligibility to run for office. While most localities see challenges that center on residency or even age, the Navajo are faced with a rather unique challenge, the ability of a candidate to speak their language. Chris Deschene is currently seeking the office of the President of the Navajo Nation and finds himself mired in a fight that will determine the fate of his candidacy. By his own admission and through the findings of the Navajo election board, Deschene does not speak fluent Navajo. The initial challenge made its way to the Supreme Court on September 26th where it was ordered that the election board hold a hearing to test his fluency. On October 3rd, this hearing was held and Deschene found himself disqualified. He has subsequently appealed and on Monday, it will once again be heard by the Navajo Supreme Court. As it prepares to head back for a second time, I would urge the Supreme Court to allow Deschene to run and to invalidate the language requirement in favor of a requirement that will be less restrictive. While the Navajo Nation certainly deserves a leader who can speak the language, there are less restrictive means of accomplishing this goal.

Language is the life blood of any culture. The syntax and words hidden in language contain clues as to our origins and history. The Navajo certainly have a compelling interest for preserving it and even requiring its principal leader to speak it. In the initial decision on this matter, the Court made a valid point when it stated that it is essential for self-determination for the leader of the Navajo Nation to speak the Navajo language[1]. The Court also stated that “[w]hile the right or privilege of placing one’s name in nomination for public elective office is a part of political liberty, thus making it a due process right, that liberty may be restricted by statute. Any such restriction must be reasonable and forward some important governmental interest.[2]” Deschene contends that this requirement discriminates against younger Navajos who may seek to assume leadership positions within the tribe. This argument was rejected the first time around and the Court noted that this statute applies to everyone and that it does not purposely discriminate against young people[3]. This is a valid point, if viewed within a vacuum. On its face, the statute does not discriminate against young people but the effects are often different than the original intent.

Like many Native nations, the Navajo find themselves at a crossroads. Fluency in their language is declining but yet they want to preserve it for future generations. As Indian Country Today noted in a recent article, the United States Census Bureau estimates that 169,000 people spoke Navajo in 2010, a decline from 178,000 in 2010[4]. No distinguishing was made with regards to fluency. As NPR further noted in another recent article, only 30 percent of Navajo first graders display any kind of fluency, this number is a large decline from 90 percent 50 years ago[5]. What this all points to is the fact that fluency in Navajo is declining, particularly among young people. The first graders of fifty years ago are now the tribal leadership of today. What will the pool of candidates look like when the current first graders come of age? It will certainly be much smaller, even smaller than it is now. On its face, the statute is not discriminatory but fluency in the language is not evenly divided amongst age groups within the tribe.

The Court has held that the right to run for office may only be restricted by a reasonable restriction that forwards an important governmental interest. There is no denying that this is an important governmental interest but I would beg to differ on the idea that it is a reasonable restriction. The Court has previously clarified that these restrictions must be reasonable public policy[6]. The underlying idea behind this policy is, as the Court stated in its first hearing on the matter, “to preserve, protect, and promote self-determination, for which language is essential[7].” The idea that language is essential for self-determination is an important one, but is this the only way to further that interest? While I do disagree that is the best way to do it, striking down the language requirement entirely would be a grave mistake. As the Court has previously noted in this case, they do also consider ancient law, which requires that the language not be forgotten[8]. As the court notes and as I stated earlier, language is culture and contains hints and clues as to the origins of people and where they have been.

How do we reconcile these needs? We can look to United States courts and how they approach issues like this. When dealing with fundamental rights, United States courts often apply a strict scrutiny analysis. If we agree that the ability to run for office is a fundamental right then we can apply the analysis in this instance. A strict scrutiny analysis requires that a statute be sufficiently narrowly tailored to further a compelling governmental interest. We have agreed that there is a compelling interest at play here, the right of the Navajo Nation to preserve its cultural identity and honor its ancient laws by requiring that its leader be a fluent Navajo speaker. In light of a declining number of fluent speakers however, a blanket ban seems to not be narrowly tailored at all. The Navajo Court itself has stated that any restrictions on running must be reasonable public policy. The current trajectory of this policy will result in thousands of people being unable to run Navajo Nation President in the coming years. The result will be a diluted pool of candidates who may not represent the most qualified. It is because of that that the policy must be amended to allow candidates who are not fluent in the language to run, with the caveat that they must agree upon election to immediately begin taking classes that will enhance their knowledge of the language.

In regards to any concerns about the cultural authenticity of the candidate, the Court has previously dealt with that by placing ample faith in the voter. In a previous case, they stated “[i]f the People are concerned that candidates unfamiliar with Navajo life run in elections, they are free not to vote for that candidate. The candidate’s ignorance of the Navajo experience will be immediately apparent when the candidate campaigns and discusses the issues with the People[9].” The Court used this as its justification for striking down the residency requirement. The same logic can also apply here. Voters will quickly figure out that a candidate does not have the Navajo Nation’s best interests at heart and will vote against the candidate accordingly.

It is my conclusion that the Navajo Supreme Court should apply its own analysis to find that the current restriction does not represent reasonable public policy and is not a reasonable restriction on what it has held to be a fundamental right. The statute also fails when one subjects it to the scrutiny often applied by the United States courts. In light of a declining number of fluent speakers, the Court must order that the restriction be worded in a manner that takes this into account. Requiring a Navajo Nation President to actively work on improving his fluency while in office may not be ideal but it is a solution that will ensure that qualified candidates are not excluded from serving in the future. The Navajo Nation deserves competent leadership, something that becomes less likely with a smaller pool.

 

[1]    Tsosie v. Deschenie, No. SC-CV-58-14 (Nav. Sup. Ct. 2014) at 10
[2]    Id. at 8 (citing Bennett v. Navajo Board of Election Supervisors, 6 Nav. R. 319,325 (Nav. Sup. Ct. 1990)

[3]    Id. at 8-9

[4]    http://indiancountrytodaymedianetwork.com/2014/10/02/native-language-fluency-center-navajo-nation-crossroads-157152

[5]    http://www.npr.org/blogs/codeswitch/2014/10/16/356627850/navajo-presidential-race-shaken-by-language-gap

[6]    In re Lee, 6 Am. Tribal Law 788 (2006) (citing Rough Rock, 7 Nav. R. at 172–73.)

[7]    Tsosie v. Deschenie, No. SC-CV-58-14 (Nav. Sup. Ct. 2014) at 10

[8]    Id. at 11

[9]    In re Lee, 6 Am. Tribal Law 788, 793 (2006)