Here are the materials in Morris v. Giant Four Corners Inc. (D.N.M.):
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.
Previously, a member of the Navajo council had drafted a proposal to remove Chief Justice Yazzie:
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.
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.