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Opinion from Deputy Attorney General for Navajo Nation Department of Justice

Opinion from Deputy Attorney General for Navajo Nation Department of Justice

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Published by Magdalena Wegrzyn
Navajo Nation Council delegates accused of crimes cannot be removed from office, according to an opinion from the deputy attorney general of the tribe’s Department of Justice.
The memorandum was issued by Deputy Attorney General Dana Bobroff and addressed to Shiprock Chapter president Duane “Chili” Yazzie and Tiis Tsoh Sikaad Chapter president Lester Begay.
Navajo Nation Council delegates accused of crimes cannot be removed from office, according to an opinion from the deputy attorney general of the tribe’s Department of Justice.
The memorandum was issued by Deputy Attorney General Dana Bobroff and addressed to Shiprock Chapter president Duane “Chili” Yazzie and Tiis Tsoh Sikaad Chapter president Lester Begay.

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Published by: Magdalena Wegrzyn on Feb 01, 2014
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04/27/2014

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NAVAJO
NATION
DEPARTMENT OF
JUSTICE
oFFlcE
oF
THEATTO@
Haarison
Tsosie
AfiORNEY
GENERAL
lvlllMORANilUlvl
TO:
I)r.raue
I-1.
Yazzie,
President
Shiprock
Chaprer.
Navaio Nation
:
I.,ester.l.
BegaY,
Presictelt
FROM:
DA]'I]:
SUBJECT:
Jauuat'y
?9,2014
Il.esolurion
of
the
Shiprock
Chapter
01-06-14-002-SlllP
and
llesoh'ltion
of
the
'liis'l"soh
sikaacl Chapter
TTS-RES-14-01-026: Removal
o1'Courcil
DelegatesClhalged
u,ith
a
Crinle
DEPUTY ATTORNEY GENERAL
QUEST1ON
ASI(EI)
The Shiprock
Chapter
ancl
the'l'iis
I'soh
sfkaacl
Chapter
passed
sut:stantially identical
resolutions (aftached) requesting
the .Atti:r'ney
General
to
issue an
opiuiou on
whether
"NavajoNation Council
Delegates
who
lre
fcrrrnally charged
r.r'ith
crimes against tlie
Navaio Natiorl
shor-rld
renrain aerirel-r,r
the
Navajo
Natitx
Council".
'I'he Department
ol'Jttsticc
inlerprets
the
questioned
askecl
by
the
Chapters'
tr:
be
rvhether
a
Cr:uncil
Delegate
chargecl r'vith
n
crime
against
rhe
Navajo
Nation
is
atitonratically
rentoved
fiom
their Corulcll
Delegate
seat'
SHOITT
ANS\YER
'fhe
shorr answer
to
the
cluestion
is
no. A
Council
Delegate charged
lvilh
a
crime
againstthe
Nation
is
rrot
automatically
rerrovecl
liom
tlieir
Council
Delegate
seat.
'l'he proper ;urall,sis
of
the
Clraplels'
questiou :rrusl etuphasize the
distinclion
helrveentreing
chargea
ivirtr
u
rri,-,r.
\rersus
being convictecl
ol'a
crime. This distincl.ion is i:flen
describect
..r,s
iilroc"nt
ultil
provel"l
guilty".
While
there
are
Delegates
currently sitting
on
thc
Navajo
Nation
Coulcil
rvho have
been chargecl
rvith
crimes
against
the
Nation,
nolte
ol.
the
sitti[g
Delegates
havc
been
convicted
o1'such
critnes'
P.Q.
Box
?010
l
\&indow Rock,
Rz
86515.
tges}
8rl-6343
r
FAX
l\io. (928)
87\.6177
Chapter,N*up:o Nation
Dana
Bobroff,
DeputY
Navajo Nation
Deparlruent
 
Memorandum
To:
Duane
H.Yazie
and Lester J.
Begay
RE:
Resolution
of
the Shiprock Chapter
0I-06-14-002-SHIP
and
Resolution
of
the
Tils
Tsoh
Slkaad Chapter
TTS-RES-14-01-026:
Removal
of Council
Delegates Charged
with
a
Crime
January
29,2014
Page2
There
are
not
any statutory
provisions
within
the
Navajo Nation
Code mandating theautomatic
removal
of
a
Council
Delegate charged
with,
but
not
convicted of,
a
crime
against
the
Nation.
There
are also
not
any
Navajo Nation court opinions
mandating the automatic
removal
of
a
Council
Delegate charged
with,
but
not
convicted
o4
a
crime against
the
Nation.While
there
are
no statutory
laws
or
judicial
decisions mandating the
removal from offrce
of
a
Council
Delegate charged
with,
but
not convicted
of,
a
crime
against
the
Nation,
the
NavajoNation
Code
does
provide
the
Navajo Nation Council
with
the
discretion
to place
a
Delegate on
administrative
leave when there
are
reasonable grounds
to
believe
a
Delegate
has
seriously
breached
their
fiduciary
duties to
the
Navajo
People.
Additionally,
under the
Navajo Nation Election
Code,
a
Council
Delegate
can be
subject
to
a
recall
election by sixty
percent
(60%) of
voters who
voted in
the last
election for thatparticular Council
Delegate
seat.
The voters
doing
the
recall
are
the
sole
judges
of
the reasons
or
grounds
for
the
recall.
Under
the
Election
Code,
a
Council
Delegate
could
be
recalled
and
thenremoved
from
office
by
the voters
for
being charged
with,
but
not convicted
of
a
crime
against
the
Nation.
ANALYSIS
As
stated
above, there
are
no statutory laws
or
judicial
decisions mandating the automatic
removal from
office of
a
Council
Delegate charged wittU but
not convicted
of,
a
crime against
the
Nation.
That
said, the
Navajo Nation
Code does
provide
the
Navajo
Nation
Council
with
anavenue
to
remove
a
Delegate
from
active
participation
on the
Council,
even
if
they have
only
been
charged
with,
and
not convicted
of,
a
crime.
The Code
also
provides
the voters
and
the
Council
with
avenues
to
remove
a
Council
Delegate
from their offtce,
even
if
they have
only
been
charged
with,
and
not convicted
of,
a
crime.
These
options
are
discussed
below.
A.
The
Navajo
Nation
Council
has the
discretion to
place
a-Council
Deleeate
onadministrative
leave
if
the
Council finds
that the Delegate
has
seriously
breached
his
or
her duties
of fiduciarv
tnrst to
the
Navaio
People.
Under
I
I
N.N.C.
$
240 (C),
the
"Navajo Nation Council
mayby majority
vote of
the
Council,
place
.
.
.
any
of
its
members on
administrative
leave,
with
or
without
pay, where there
are
reasonable
grounds
to
believe that
such
official
has
seriously
breached his
or
her
fiduciary
trust
to
the
Navajo
People and
such
leave
will
serve
the
best
interests
of
the
Navajo
People."(emphasis
added). Placing
a
Delegate on
administrative
leave is
a
discretionary,
as
opposed
to
mandatory, action that should
be
supported by procedures that
ensure
the Delegate
is afforded
due process.
See
Shirley
v.
Morgan,
SC-CV-02-10, slip
op.
at
44
(Nav.
Sup.
Ct.
May
28,2010).
The
Navajo Nation
Code
does
not specifically
define
what
is meant
by
a
serious breach
of fiduciary
trust
to
the
Navajo People. Fiduciary
trust
can
generally
be
described
as a
situation
wherein
a
person
in
a
position
of
authority
is obligated under the
law to
act
in
good
faith
and
solely on behalf
of
theperson(s)
he
or
she
represents.
See,
e.g.,
Black's Law
Dictionar.y
625
$th
 
Memorandum
To:
Duane
H.Yazzie
and
Lester
J. Begay
RE:
Resolution of the Shiprock
Chapter
0
l
-06-
14402-SHIP
and
Resolution
of
the
Tils
Tsoh Sikaad
Chapter
TTS-RES-14-01-026:
Removal
of Council
Delegates Charged
with
a
Crime
January
29,2014
Page
3
ed.).
In
the
question
at
hand,
because
the
Code does
not
provide
a
specific
definition, it
would
be
the
responsibility of
the
Council to
determine whether being charged
with,
but
not
convicted
of,
a
financial crime
against the
Nation
constitutes
a
serious breach
of
a
Delegate's fiduciary trust
and
whether
it
is in
the best interests
of
the
Navajo
People
to place that Delegate
onadministrative
leave.
B,
Registered
Navajo
voters have the
risht
to recall
snd remove
a
Council
Deleeate
from
offrce
for
any reasonable eround(s). presumably
includine being
charged
with.
but
not
convicted
of.
a
crime
ae4inst
the
Nation.
Under
the
Navajo Election
Code,
a
Council
Delegate,
like
other elected
officials,
may
be
removed
from
office
through
a
recall
election.
See,ll
N.N.C.
$$
241
-244.
"Recall provisions
are
a
means
through which
the
public
voice
their
dissatisfaction
with
their
elected
officials
who
are
subjected
to removal
from
their
elected
offices."
Barton,
et
al.
v.
Dilkon
Recall
Committee,
8
Nav.
R.
195,
199
(Nav.
Sup. Ct. 2001).There
are
procedural
requirements
set
out
in
the
Election
Code,
specifically
at
I
I
N.N.C.
$$ 241
-244,that
must
be
strictly
adhered
to in
orderto
effectuate
a
recall
and
removal
of
anelected
official.l
For
example,
one
of
the
first
requirements is that
"sixty
percent
(600/0)
of
theregistered voters
who voted in
the last
election for
the
office in
question
file
a
petition
seekingthe
official's removal."
1l
N.N.C.
$
241(A).
In
the
case
of
a
Council
Delegate,
this
appears
to
mean
registered voters
from
the chapters
who
elected the Delegate
in
the
first
place.The
Election
Code
does
not
set
forth
grounds
for recall
and places
the
responsibility
onthe voters
signing
the
recall petition to
determine
their
grounds
for
recall.
Pursuant
to
I
I
N.N.C.
$
2al
(F):The ground
or
grounds
for
recall
is
for
the
signing
voters,
who
shall
be
the
soleand
exclusive
judges of
the
legality,
reasonableness, and
sufficiency
of
the groundor grounds assigned
for
the
recall.
The ground or grounds
shall not
be
subject
toreview.As to
the question
at
hand, there is
nothing in
the
Election
Code
to
prohibit
voters
from
circulating
a
petition wherein
the grounds
for recall
are
that
their Council
Delegate was charged
with,
but
not convicted
of,
a
crime
against
the
Nation.
If
voters meet the
procedural
requirements
for
a
recall election,
the
election
shall
be
decided
by
a
plnrality of
votes
and
there shall
be
no
run-off elections.
I
I
N.N.C.
$
244
(E).
It
should
be
noted that the
official
sought
to
be
recalled is
automatically
placed on the
recall
election
ballot.
See,ll
N.N.C.
g
244
(C).
I
It
is
strongty recommended that
the
Navajo Etection
Administration
be
consulted
on
appropriate
procedures
before
any
recall efforts
are
commenced.

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