NAVAJO NATION DEPARTMENT OF JUSTICE oFFlcE oF

THEATTO@

Haarison Tsosie

AfiORNEY GENERAL

DEPUTY ATTORNEY GENERAL

lvlllMORANilUlvl

TO: :

I)r.raue

Yazzie, President Navaio Nation Chaprer. Shiprock
I-1.

I.,ester.l. BegaY, Presictelt

Chapter,N*up:o Nation

FROM:
Dana Bobroff, DeputY Navajo Nation Deparlruent

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 Delegates
Clhalged u,ith a Crinle

QUEST1ON ASI(EI) The Shiprock Chapter ancl the'l'iis I'soh sfkaacl Chapter passed sut:stantially identical whether "Navajo resolutions (aftached) requesting the .Atti:r'ney General to issue an opiuiou on crimes against tlie Navaio Natiorl Nation Council Delegates who lre fcrrrnally charged r.r'ith 'I'he Department ol'Jttsticc inlerprets the shor-rld renrain aerirel-r,r the Navajo Natitx Council". r'vith n crime questioned askecl by the Chapters' tr: be rvhether a Cr:uncil Delegate chargecl Delegate seat' against rhe Navajo Nation is atitonratically rentoved fiom their Corulcll SHOITT ANS\YER

'fhe shorr answer to the cluestion is no. A Council Delegate charged lvilh a crime against the Nation is rrot automatically rerrovecl liom tlieir Council Delegate seat.
'l'he proper ;urall,sis of the Clraplels' questiou :rrusl etuphasize the distinclion helrveen i:flen describect treing chargea ivirtr u rri,-,r. \rersus being convictecl ol'a crime. This distincl.ion is ..r,s iilroc"nt ultil provel"l guilty". While there are Delegates currently sitting on thc Navajo the sitti[g Nation Coulcil rvho have been chargecl rvith crimes against the Nation, nolte ol.
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

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 TTSRES-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 the automatic 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 Navajo Nation 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 that particular 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 then removed 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 an avenue 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 on administrative 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 TTSRES-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 on administrative 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. $$ 241 -244. "Recall provisions are a means through which the public voice their dissatisfaction with their elected officials who are subjected to removal from their elected offices." Barton, et al. v. Dilkon Recall Committee, 8 Nav. R. 195, 199 (Nav. Sup. Ct. 2001). There are procedural requirements set out in the Election Code, specifically at I I N.N.C. -244,that must be strictly adhered to in orderto effectuate a recall and removal of an official.l For example, one of the first requirements is that "sixty percent (600/0) of the registered voters who voted in the last election for the office in question file a petition seeking the official's removal." 1l N.N.C. $ 241(A). In the case of a Council Delegate, this appears to mean registered voters from the chapters who elected the Delegate in the first place.
$$ 241 elected

The Election Code does not set forth grounds for recall and places the responsibility on the 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 sole and exclusive judges of the legality, reasonableness, and sufficiency of the ground or grounds assigned for the recall. The ground or grounds shall not be subject to

review. 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). 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).

It

I It is strongty recommended that the Navajo Etection Administration be consulted on appropriate procedures before any recall efforts are commenced.

Memorandum To: Duane H.Yazzie and Lester J. Begay RE: Resolution of the Shiprock Chapter 0I-06-14-002-SHIP and Resolution of the TIfs Tsoh Sikaad Chapter TTSRES-14-01-026: Removal of Council Delegates Charged with a Crime
January 29,2014
Page 4

C.

The Navajo Nation Council has the authority to remove a Council Deleeate for
cause.

just

A Council Delegate can be removed from office for just cause by
cause includes, but shall not be necessarily limited to:

a

two-thirds majority vote

oftheCouncil. llN.N.C.$240(A)and$240(AX2).UnderllN.N.C.$240(A)(l),just
judicially or medically determined. b. Convictionby any court of any felony. c. Council members failing to attend Council meeting as required by law.
a. Insanity, when

***
e. Habitual indulgence in alcoholic beverages.

f. Conviction of any misdemeanor involving deceit, untruthfulness, and dishonesty, including but not limited to extortion,embez.zlement, bribery, perjury, forgery, fraud, misrepresentation, false pretense, theft, conversion, or misuse of Navajo Nation funds and property, and crimes involving the welfare of children, child abuse, child neglect,
aggravated assault and aggravated battery. g. Breach of fiduciary trust duties to the Navajo People. h. Malfeasance or misfeasance of office. [emphasis added]. Similar to placing a Delegate on administrative leave, removing a Delegate under section 240 (A) is a discretionary, as opposed to mandatory, action that should be supported by procedures that ensure that just cause is established and the Delegate is afforded due process. See generally, Shirley, No. SC-CV-02-10, slip op. atM.

As discussed earlier, the Navajo Nation Code does not specifically define breach of fiduciary trust to the Navajo People. Nor does the Code specifically define malfeasance or misfeasance of office. It is therefore the responsibility ofthe Council to determine whether being charged with, but not convicted of, a crime against the Nation meets the criteria for just cause as to a breach of fiduciary trust duties to the Navajo People and/or malfeasance or misfeasance of office.

CONCLUSION
There are no statutory laws orjudicial decisions mandating the automatic removal from office of a Council Delegate charged with, but not convicted ol a crime against the Nation. The Navajo Nation Code does, however, provide the Navajo Nation.Council with the discretion and procedures to place a Delegate on administrative leave. The Code also provides the voters and the Council with avenues to remove a Council Delegate from their office, even if they have only been charged with, and not convicted of, a crime.

Memorandum To: Duane H.Yauie and Lester J. Begay RE: Resolution of the Shiprock Chapter 0I-06-14402-SHIP and Resolution of the Tiis Tsoh Sikaad Chapter TTSRES-14-01-026: Removal of Council Delegates Charged with a Crime
January 29,2014
Page 5

Please let DOJ know

if the Chapter

desires any additional discussion on this issue.

Attachments

xc: : :

Johnny Naize, Speaker, The Navajo Nation Council The 22no Navajo Nation Council Delegates

Mariana Kah1, Acting Chief Legislative Counsel/OlC

01.06.!H)0z-sHlP

ftesolution of the Shiprock Chapter
sFrrPr{ocK
N

AVAIO

N

/f llON

WTIEREAS:

l.

'l'he Shiprock Chapter of the Navajo Nation aoe on this rcsolution pumuant to the authority confened to the Chaptcr through Navqio Code Title 25, Chapter I; Section B. (Purpose), wltich states, "Through adoption of tlris Act, theNavajoNation Councildelogates to Chapters governmontalauthority witlr t€spect to local matterc consistent with Navajo [aw, including custom and tradition;" and

2.

The Din6 people require their leadcqship to obey all laws of the Navajo Natiott including the
Fundamental Laws of the Din6, the Navajo Ethics Law and to uphold tho Oath of Office they swore to. Furtharthey are held to a highcr standard ofconduct, to be above reprooolq to be honorable and to set an example for atl Navajo pcople, in particular the young, artd

3.

There oro Navajo Nation Couucil Delegates who have been charged with rimos against the Navajo Nation and thus tlrc Din€ p€ople, includirrg ntisuse of Navajo motries, cotupiracy, fraud and abuse of office, and

4.

Attlrough there appears to bc no polioy on how Dologatcs who are so charged should be treated, the Navajo Personnel Poticies Manual'sTable of Penalties may provide some guidance in tlrat, it prescribes how employees would be dealt'wilh whpn they comrnit misuse of Navajo funds, solicitation and scceprarce of kickbacks, falsifioation of Nation record, fraud and/or conspiracy to commit fraud aud abuse of office; tho penalty for each of these offenses is Removal. and
Because of the moral and ethical duties and responsibilities that Navqio leaders must be held to, it is guestionable wlrether these individuals who are formally charged with crimcs and arc under investigation should aotivcly rcmain in office.

5.

NOW, TIIERETOR"E, BE ITNESOLVED TIIAT:
Requesting the Attorney Geneml of tlre Navqio Nation to issuc an opinion on whether the Navajo Nation Council Detegntes who are fbrmally chargcd with crimes against the Navajo Nation should renrain active on tho Navajo Nation Council.

Motioncd

by:battt/-r.:t-t

t/'xvyrp;u-

cERTIFICATIOI{

Seconded by:

Nlrr-r.c.a F**,

Wc hereby certiff that tlre foregoing rssolution was prosented and considered al a duly oalled Chapter rneeting at which u quorum was present and tlut the same was approvcd by a vote ofggin favor, 0 opposed and absteution on tlris Qfl day of January 20|J.

g

Tommie YalLie, Vico President

Tiis ?ssh Sikaa{ Ch:rp**r
Post Ofiice Box 7359

Newconrb, New Mexico S?455 505-696-5470 (Telephone) 505-696-54?3 (Fa.x) ti i stsohsikaad@avaj o rh apteru, org
Tlis Tsoh

RS$OLUT:ON NO: *I$*EE$I {*01 *S?6

nEr{rffiT}I{o IIIrffr?o}NsY sBNrnatp}TrIp}ievAJo}{*Tr*Nro}$sus,tuN orl}{Iol{ oN A$AIilsr TXr*r{AyA;?
WHESEAS:
r{Ar:0?,,r s,$Q:JLn IrmMArN

s

acTrY* oN Tgp &qvAdq lYsrIoN touNfrt{

1. Ths Tiis Tsoh Sikaad
2..

3.
4.

is a certified Chaplercf the X*vqi* liatio* Soyernmrnt p$r$a*t lo Nav*jo Tribal Council Se*olution No. CAP'34-PS and is delegated authority wilh reepect t* local mattex consistsnce with Navajo Nation law, including custom, tradition, ancl fiscal nrattcrs; AND Thr Diue peaple reqairo their leadsrship to obey all laws of&e Navajo Natitu ircluding the Fund*me*tal Laws ofthe Dine, the Navajo Hthies Law and to uphold the Oath of Office they tock. Further lhoy are held to e higher stanclard ofco::duc! to be cbove reproa*h, to be honorable and to set aa exampla for atl Navajo pecple, iu pu'ticulnr tlie y*ung; ANI) Thsre *reNsvqjr Nation Council $elegates whc have been ehargd with crimet agairst tle Nav*jo Nation and thus the Din* people, including misxse ofNavajo mo*ier, c*nspiraoy, *ald a:t* nbuse of

officslAND
Ai:hough {lere *ppoars tq bs no pclioy guide on hcw Delegates whc *re so eharged s::ould b* treaad, tho Navqio Fsrsorurel Fotrioie* Manuel Tnble *f Feualtics prcscribes how ercployeea would be d*alt wif: wh*n th*y eommit misuse ofNavqp furds, soliritatior and wceptance *f kckbackr, falsificatiot $l Nation r$sord, fraud and/or *ouspiracy to commit fraud and abuse of office; the penalty for eaoh of thesc oJfeuses is remnval; AND Becauso of tl'lo rnoral and elhic.al duties qnd responsibilities that Navajs le*ders must bc h*14 to, i: is questianable whEthertkese individuals who are formal$ *harged with crimes a*d are mder invrstignlirn *ltould artively remain iu offige.

5.

H*W, mI3REfOnE ES n&$*tv$} TEA?;

1.

Requesting lhs Attorney General of tho Navajo Hation ta issu* an apinion *n whe{rer tho Navnjo Natio* Conncil Delegates wlro are fonnally charged with crimes against the Nava.io Natiol shsuld remain activp on the N*vqjo Nation Couucil.

CERTI.FICATION
We hereby co*iff that the forgoing ros*lution was duly considerad by lhe Tii* Tssh Sikaad Ckapter cf the Navqjo Nation, (New Mexico), at a duly callcd r**eting a! which a quorum wa.s present and &al seilte \ilay paxed by a vote af ?,3 in favor-{32 -opposed, axd;9.}* ubst*incd on this 12th day of Januaqy. ?014.
SecsrEled:

Lorenzo C. Bstes, Council Delegate
I"$t{rJ. Ilcgry Nr{cy A. i}e[ry Scarclnryfli$clrrcr
D;rvi* I lrrry Grazing Nltnlrr

Pr6idqr
/rrthur J. Yy:ic Vico Prc$id..l

l.orcnro C. Ilrlcs Courcil Dclcgntc

Shiprock Chapter Government of the Navajo Nation
..P.

O. BOX

3810

.

SHIPROCK, NEW MEXICO 87420-3870

Email:shiprock@navajochapters.org

.

(505) 368-1081

'

.

Fax (505) 368-1092

.

Website: www.shiprock.rurdes.org

30 January 2014

TO MEMBERS OF THE NAVAJO NATION COUNCIL:

Although the Attorney General initially misinterpreted and thus miscdnstrued the question asked, the conclusion is sound and proper. As opined, the Navajo Nation Codd at Title 11'5 240 says the "Navajo Nation Council may by 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 ieave will serve the best interest of the
Navajo People." The Navajo government is in a state of turmoil as it is apparent a significant number of Din6 people have lost confidence in Navajo leadership partly due to the brazen continued active participation of Delegates

who are legally charged with violatiqn of Navajo law. The Shiprock Chapter resolution asked "whether.... Delegates who are formally Charged with ciimes...should remain active on the,..,Council." The Attorney General misconstrued the question by incorrectly assuming that we meant "immediate removal". The
placing of Delegates on administrative leave bgcause thiy have breached their fiduciary trust to the people is equivalent to them remaining on the Council, just nbt being active.

The 12 votes to remove Mr. Naize as Speaker says loudly that there remains a dominate vestige of honor and ethics on the Council. I respectfully call on the 12 Delegates to act expeditiously to restore the integrity of the Council by placing all Delegates who are charged with crimes on adminis*ative leave without pay. lt does not matter how many charges they have, as evbn just one charge is a serious breach of fiduciary trust. This action would be a path back to hqnor and begin the restoration of confidence in our NCvajo Council. This act of courage will unquestionably serue the best interest of the Navajo People.

Respectfully,

Duane H. Yazzie, Shi

CHAPTER

Duane H. Yazzie, Tommie Y azzie, Y ice-P resident J, Kaibah C. Begay, Secretary-Treasurer

OFFICIATS President

DISTRIEI

12

GRAZINC COMMITTEE

Robert Hayes, Member

SAN IUAN RIVER FARM BOARD Joe Ben, Jr., Member

COUNCIL DELEGATE
Russell Begaye

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