Here are the materials in Tribal Council of the Cheyenne and Arapaho Tribes of Oklahoma v. Foster (W.D. Okla.):
Here are materials in Rabang v. Kelly (W.D. Wash.):
Here are materials in Nooksack Indian Tribe v. Director (IBIA):
Here are new materials in the case now captioned Nooksack Indian Tribe v. Zinke (W.D. Wash.):
Based on the foregoing, by majority decision, the Court hereby enters a Permanent Writ of Mandamus against the Respondents. Under its administrative duties to implement the Election Code, the NEA is ordered to comply with 11 N.N.C. 44. The ballots are to be immediately reprinted without the name of the disqualified candidate, Christopher C. Deschene. It is unavoidable that the November 4, 2014 election must be postponed as agreed to by the Chief Legislative Counsel, and as permitted by 11 N.N.C. 3 to ensure a valid election.
Briefs posted here.
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. 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.” 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. 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. 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. 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. 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.” 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. 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.” 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.
 Id. at 8-9
 In re Lee, 6 Am. Tribal Law 788 (2006) (citing Rough Rock, 7 Nav. R. at 172–73.)
 Tsosie v. Deschenie, No. SC-CV-58-14 (Nav. Sup. Ct. 2014) at 10
 Id. at 11
 In re Lee, 6 Am. Tribal Law 788, 793 (2006)
Tribal Elections (listen)
Fletcher will be on Native America Calling, as well as MSU law student (on leave, due to recent successful election bid) Chris Mercier.
Here is the description:
Friday, September 26, 2014 – Tribal Elections
The 2014 midterm elections in November are an opportunity for voters to make their voice heard by local, state and federal officials. In Native America, voters are also casting ballots in tribal elections this year. Did you cast a ballot in a tribal election in 2014? Are candidates still out talking to members of your community for an upcoming election? Do you vote only in your tribal elections? Or do you choose not to vote because you moved to the city and it’s hard to follow what’s going on back home? Join us as we explore tribal elections in our 2014 Election series on Native America Calling.