Navajo Nation Supreme Court

1. Whether federal courts are free to ignore congressionally confirmed Indian treaty rights that impliedly reserve tribal jurisdiction over nonmember conduct within an Indian reservation, thereby effecting an impermissible judicial abrogation of those treaty rights.

2. Whether federal courts may disregard the Supreme Court’s multifactor analysis for determining the status of a roadway existing on tribal trust land when deciding if an Indian tribe has inherent sovereign jurisdiction to adjudicate a collision occurring on that roadway between a tribally regulated tour bus and a passenger vehicle carrying tribal members.

3. Whether federal courts may decline to apply the consensual relationship exception of Montana v. United States, 450 U.S. 544 (1981), because nonmember conduct occurred on land deemed to be the equivalent of non-Indian fee land, where (a) the Supreme Court has indicated that Montana’s consensual relationship exception can justify tribal jurisdiction over nonmember conduct occurring on non-Indian fee land or its equivalent, and (b) there exists a consensual relationship of the qualifying kind between the tribe and the nonmembers.

4. Whether federal courts may deny that an Indian tribe has inherent civil jurisdiction, pursuant to the second Montana exception, over nonmembers’ commercial touring of tribal lands that results in a fatal tour bus/auto collision where (a) the nonmembers’ conduct implicates the tribe’s interests in governing itself, controlling internal relations, and superintending land use, and (b) the impact of the commercial touring activity, unconstrained by tribal regulatory authority, is demonstrably serious and imperils the tribe’s sovereign interests.

Lower court materials here.

Navajo Nation Supreme Court Chief Justice Herb Yazzie Statement re Retirement

May 15, 2015Matthew L.M. Fletcher

Statement from Navajo Nation Chief Justice Herb Yazzie

“After forty years working in the legal profession for the Diné and with thirty years working in Navajo Nation government, with a stint as Attorney General and more recently as Chief Justice, I will be retiring. My retirement decision has long been urged by my family, relatives and community out of concern for my well-being. For the past ten years, I have been part of a Court that has had to make hard decisions often involving ruptures in relationships that, according to our deeply held principles of k’é, should properly be the responsibility of a better and more traditional system to patiently restore. I have decided now, with full consultation with my elders, to heed their advice.

Our society is a precious one, but one in which isolation and lack of self-esteem can harm our young ones their whole lives. I was such a young one, refusing to see value in myself, yet I survived though many of my generation did not make it and could not provide for the families they left behind. Somehow, I gained experience and knowledge, and was able to reconnect with my loved ones. It is much harder for a young person to reconnect after isolating himself or herself than to understand the value of relationships, k’é, from the beginning and be helped forward. Sometimes to learn this value, there must be a disciplinarian. I have tried to emphasize this value in my participation on the Supreme Court, Hashkééjí Nahatʹá, and by example.

We start with incomplete knowledge in a difficult environment. The difficulties in making ends meet is often unbearable enough and becoming separate from our value system, embodied by our language, can seem insignificant. We can become indoctrinated into believing such identity to be unimportant. Parents may even believe that they are protecting their child by affirming the unimportance of traditional knowledge that the parents, themselves, have not conveyed. To these parents, I would tell a story, that of a young Navajo serviceman troubled at putting on an army dress uniform with insignia of cavalry sabers, feeling a general sense of betraying himself, and unable to put into thought or words how to own his own future.

My folks always said – your experience, your knowledge, we appreciate you putting it to good use on behalf of the people. You now have attained these high leadership positions. But be aware that there will always be people who will insist on behaving as if the function of government is to destroy itself. In your position, don’t ever get down to their level, because you have to protect the concept of natanii. You have to maintain integrity for the people, and you should not by your words cause people to lose faith in our value system or respect for the value system. That’s not what a leader does. However, there have been a few times that, as part of the Supreme Court, I have had to call the government structure into question in order that the people have knowledge of your government, be engaged in the actions of government, and design and choose your future system of government that affirms who you are rather than merely imitate surrounding states.

The other day, someone told me that he understands and supports the Supreme Court. He remembered that when the Council declared that Fundamental Law and tradition is only what the Council decreed Fundamental Law to be, it was the Supreme Court that struck down that effort. It was through use of Fundamental Law that the courts were able to rein in corruption in past Councils and strike down enactments that provided cover for embezzlement of the discretionary fund. Concern for the traditional law of the people and the value system of the people have been the duty of the court system since the Navajo Nation began performing decision-making functions free of the burden of elections. It is my steadfast hope that the Judicial Branch may continue to be the disciplinarian and gatekeeper without interference.

The Court takes a comprehensive look at the laws and hears the explanation from those who wish to state their position. The Court cannot ignore other laws, and it cannot pick and choose which law applies when there is a set of laws that all bear on one subject. In the recent election cases, our courts affirmed the rights of the people to choose their leaders. Yet at the same time, it was our elders, our former leaders, who made it very specific, very strong, that you must be fluent in order to be President and Vice President. Our government specifically added the fluency qualification in 1999. We affirmed the validity of the language requirement in our president election laws. We have noted that the President is nihi nanitʹaʹi elected by all the Navajo People while all other offices are elected by communities in smaller areas. The President has the stature of representing the whole Navajo Nation to other sovereigns and the one who is the embodiment of the Nation. The law requires this embodiment to be bilingual. Don’t expect to be President without acquiring the qualification.

In closing, I would say that the recent proposed measure to remove me all concern decisions by the Supreme Court, not actions of an individual. The decisions were based on a thorough analysis of the law and declaration of how the law should be applied. Issuing court decisions that are thoroughly explained are manifestly judicial acts, that is what courts do. Our past governmental leaders have always said that when the Supreme Court makes a decision, that is the final decision. That law must be complied with no matter how some may view me as an individual. Seeking to use personal attack does not nullify the Court’s decision. I urge the Diné to learn from the actions and words of those who attack our way of life. Learn and protect our heritage. Turn the negative into positive.

I am truly grateful for being able to have worked with all of you. I have become acquainted with many of you personally and know that I have family all over our land. In my retirement, I am sure we will meet and enjoy the beauty of our life and the gifts that have been bestowed on us.

Coming from being a judge, my dream is that when we meet those who find themselves facing harshness of life, that we will help them, especially affirm to the Diné that because we are Diné, we can restore ourselves to the Beauty Way, and thereby also affirm all humanity who are universally linked, as neighbors, as surrogate family, and as partners in a mutual journey.

I’m sure we will see each other soon.

Navajo Law and Order Committee Recommends Removal of Chief Justice Yazzie; Matter Moves to Full Council

May 7, 2015Matthew L.M. Fletcher1 Comment

Here:

LOC recommends removal of CJ

Previously, a member of the Navajo council had drafted a proposal to remove Chief Justice Yazzie:

Proposed removal of Navajo Nation Chief Justice

Politics is a beast. Judicial administration is incredibly difficult.The list of the six allegations against Chief Justice Yazzie demonstrates how these two can interact into an ugly stew. Whether these allegations are rooted in politics I am in no position to opine. But I have a few comments on the independence of the tribal judiciary that I imagine are implicated here:

Removing a judge because the political branch disagrees with decisions on substantive law made by the judge is simply a violation of the separation of powers and a direct attack on the independence of the tribal judiciary.
Removing a judge because the political branch disagrees with the administration of the judicial branch by the judge can be a violation of separation of powers and judicial independence, and such a judgement depends on the degree of proven maladministration.
Removing a judge for poor administration shortly after a series of controversial decisions on substantive law issues by the judge suggests that the reasons for removal may be pretexts for removal on the basis of disagreements on the substantive law, which would be a violation of separation of powers and judicial independence.
Maintaining judicial independence and separation of powers is not easy, and judges may make decisions on substantive law that are unpopular with the political branches of government, and with the populace. That’s the job. Removing an unpopular judge is a violation of separation of powers and judicial independence.

Here are the six allegations, as summarized by the law and order committee:

Inaction to establish a Judicial Conduct Commission despite receiving $100,000 in the current year’s budget
Violation of basic fundamental due process rights by finding a criminal offense against members of the Navajo Nation Board of Election Supervisors, without formal complaint and without a hearing
Failure to designate a third justice on numerous occasions, as mandated by 7 N.N.C. §301 (A), which “prevents the Supreme Court from being supplied with additional legal analysis when addressing issues before the Court”
Violation of Navajo Nation laws and separation of powers, asserting authority over the Office of Hearings and Appeals (an executive branch entity), by appointing a District Court Judge to preside over a hearing before the Office of Hearings and Appeals
Failure to uphold Diné bi beenahaz’áanii, the laws of the Navajo Nation, by wrongfully interpreting the laws of the Nation causing unnecessary expenses, violation of people’s rights, uncertainties, overreaching (separation of powers violation), and confusion on the Navajo Nation and in the legal communities
Violation of separation of powers and due process of law by disbarring former Chief Legislative Counsel Frank Seanez, without referring the issue to the Navajo Nation Bar Association and denied a fair hearing. The allegation states that the Chief Justice was the accuser, the trier of fact, and the decision-maker in the case

On their face, some of these allegations appear to be rooted in maladministration. The first, for example, may be exactly that. But others appear to be likely rooted in political disagreements with the judge’s views on substantive law, most notably, the fifth and sixth allegations. All of them appear to be mixtures of both administration and substantive law.

Elsewhere in the committee release, the committee notes that public commentary was overwhelmingly in opposition to the Chief Justice. The Navajo Nation, I understand, had made a judgment that tribal judges were entitled to life tenure to prevent their removal for making controversial decisions. This information alone seems meaningless and irrelevant, and its inclusion frankly suggests political motivations.

It is very possible that these allegations may be proven to the extent that the Chief Justice is effectively found guilty by an impartial tribunal of “malfeasance, misfeasance, and serious neglect of duty” (to quote the committee’s release). I further realize that a judge may abuse his or her power and improperly interfere in the political process, perhaps justifying removal in extreme circumstances. It can be a fine line for the judge. The next step here looks like simple legislation to me, not due process. I’m not on firm ground here — I know nothing about the Navajo Tribal Council’s process in the context of judicial removals — but there mere fact that it is the tribal council considering this judicial removal process as mere legislation, according to the committee’s release, does not bode well for due process. It looks to me like politics.

These two documents, which are allegations and mere summaries of allegations, plus my own outsider knowledge of several very controversial decisions reached by the Navajo Supreme Court in recent years, compels me to see the makings an unfortunate effort by the political branches of government to remove the Chief Justice of the Navajo Supreme Court. I hope this is not the case, and that the Tribal Council affords proper due process rights to the Chief Justice.

I write this with deep respect for the Navajo Nation, the Navajo Tribal Council, and the Navajo judiciary.

Navajo Legislator’s Proposal to Remove Navajo Nation Supreme Court Chief Justice

March 30, 2015Matthew L.M. Fletcher1 Comment

Here:

Proposed removal of Navajo Nation Chief Justice

Ninth Circuit Holds Strate Governs Navajo Civil Jurisdiction over Nonmembers on State Highways

December 29, 2014December 27, 2014Matthew L.M. Fletcher3 Comments

Here is the unpublished memorandum. An excerpt:

Appellants conceded at oral argument that the Navajo Nation has not retained the right to exclude nonmembers on U.S. Highway 160. Consequently, the highway is the equivalent of non-Indian fee land for jurisdictional purposes, and this case is governed by Strate v. A-1 Contractors, 520 U.S. 438 (1997). See Strate, 520 U.S. at 455-56.

Briefs and oral argument materials here.

Federal district court materials here.

Tribal court materials here.