No. SC-CV IN THE SUPREME COURT OF THE NA VAJO NA TIoNII,W ~''''rl1lt'' DALE TSOSIE AND HANK WHITETHORNE, Petitioners,

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1 _ No JAH 2 " J 8 :... jt.l IN THE SUPREME COURT OF THE NA VAJO NA TIoNII,W ~''''rl1lt'' DALE TSOSIE AND HANK WHITETHORNE, Petitioners, v. NA VAJO BOARD OF ELECTION SUPERVISORS AND NAVAJO ELECTION ADMINISTRATION, Respondents. BRIEF OF THE PETITIONERS David R. Jor an 1995 State Road 602 P.O. Box 840 Gallup, NM (505) Counselfor Dale Tsosie The Law Offices ofjustin Jones, P.e. /~ t ~ones Q POBox 2240 Farmington, NM Counsel for Hank Whitethorne ~

2 Table Of Contents Table Of Contents...2 Table Of Citations... ~..3 'I Argument...4 I. Introduction... 4 II. The Resolutions Violate The Separation of Powers... 4 A. Separation of Powers Bars The Legislature From Attempting to Nullify A Final RuJ~ng ofthis Court... 4 B. Separation of Powers Bars the Legislature from Attempting to Nullify a Contempt Sanction... 5 il 111. Both Statutes Should Be Invalidated Based Upon Dine Bi Beenahaz 'aanii A. Under Fundamental Law, The Dine Must Rise Above The Chaos... 6 B. There Is No Concept Of Pardoning In Dine Culture And Beliefs C. Fundamental Law Insists On Firm Adherence To The Separation Of Powers IV. The Legislature Cannot Throw Out The 2014 Primary V. The Legislature Cannot Allow A Disqualified Candidate to Run in a "Runoff Election".... ]6 VI. The Councit Does Not Have The Power to Pardon VII. Public Policy Supports Invalidation of the Statutes... ] 9, Conclusion...!.19, I Brief of the Petitioners, 2

3 1/ Table OfCitations Cases Application ofhallinan, 126 Cal. App. 121, 132, 14 P.2d 797, 801, 1932 Cal. App. LEXIS 489, 18 (Cal. App. 1932)... 5 Bradley v. Lake Powell Medical Center, No. SC-CV-55-05, slip op. (Nay. Sup. Ct. February 16, 2007) Dowell v. Ross, 134 Ariz. 422, 657 P.2d 410, 1982 Ariz. LEXIS 298 (Ariz. 1982) Eriacho v. Raman Dist. Ct., 8 Nay. R. 598 (Nay. Sup. Ct. 2004)... 5 Goldtooth v. Naa Tsis' Aan Community School, No. SC-CV , slip op. at 4 (Nay. Sup. Ct. April 16, 2009)...,.17 In re Estate ofreed, 236 Kan. 514, 693 P.2d 1156, 1985 Kan. LEXIS 275 (Kan. 1985)... U7 Martin v. Man 0 War Rests., Inc., 2005 Ky. App. LEXIS 88,22 I.E.R. Cas. (BNA) 1324 (Ky.!Ct. App. Apr. 1, 2005) Nelson v. Initiative Committee to Reduce Navajo Nation Council, No. SC-CV , slip op. (Nay. Sup. Ct. May 28,201 0)... 15, 17 Platero v. Mike, 7 Nay. R. 130 (Nay. Sup. Ct. 1995)... :,... 5 Shirley v. Morgan, No. SC-CV , slip op (Nay. Sup. Ct. May 28, 20 I 0)...,l13 State v. Magee Pub. Co., 29 N.M. 455, 486, 1924-NMSC-023, 40,224 P. 1028, 1035 (N.M. ' 1924) Tsosie and Whitethorne v. Board ofelection Supervisors, No., slip op. at 8 (Nay. Sup. Ct. October 23, 2014) Tsosie and Whitethorne v. Deschene, Nos. SC-CV and SC-CV-58-14, slip op. at 8 (Na~. Sup. Ct. October nunc pro tunc September 26,2014) Tuba City Judicial Dist. v. Sloan, 8 Nay. R. 159 (Nay. Sup. Ct. 2001)... 4, 5, 6,12 Walker v. Bentley, 660 So.2d 313 (Fla. App. 1995)... 5 Statutes 1 N.N.C , 16, 18 1] N.N.C N.N.C N.N.C :.18 Council Resolutions CD passim CD-SI-14...pas'~im Briefofthe Petitioners,! 3 SC-CV '

4 i I ~ir-,-~--~ Argument I. Introduction., The Council is attempting to throw the 2014 Navajo election into chaos. It is the duty, of the judiciary to rise above the chaos, and restore hozho to the Dine. As this Court wisely statej on its own website: "The solution begins in a place of chaos, h06chxq 'janah06t'j'. When h66chxq 'j anah66t 'i' is confronted, people may learn there is a choice to leave it. When harmony, h6zhq, is!i self-realized, sustaining it will have clarity and permanent hozhq will be self-attainable, h6zhijqji k 'ehgo nina 'ildee ' ilhaahodidzaa na 'oodzii '.1 In short, the concept of Dine justice is founded on the achievement of sustainable h6zhq, which is in the People's own hands, and it is the duty of i the judiciary to maximize this responsibility as far as our processes allow." (emphasis added). i It is time to leave chaos behind us. The Council has passed two resolutions, CD and CD-8] -] 4. It is the express purpose of these resolutions to promote chaos, undermine the decisions of this Court and throw the 2014 presidential election process into disarray. The Cburt should take this opportunity to invalidate these resolutions, reaffirm the election between Dr. Joe Shirley, Jr. and Russell Begaye, and restore harmony to the Navajo Nation. II. The Resolutions Violate The Separation ocpowers. A. Separation of Powers Bars The Council From Attempting to NullifY A Final Ruling of This Court. In addressing the doctrine, this Court has affirmed that the "principles of separatio~ powers and checks and balances were the catalyst that moved the Council to reorganize the Navajo Nation government; thus, these principles are fundamental to Navajo governmental ~ operations." Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159, 167 (Nav. Sup. Ct. 2001) (emphasis added). The Court will painfully recall the 1989 Crisis that precipitated the substantial of I Courts & Peacemaking in the Navajo Nation, A Public Guide, Revised May 16, 2013, accesse~ at navajocourts.org on January 21, 'I Brief of the Petitioners, 4

5 II " Title II amendments. These amendments established the present separation of powers, and this separation was seen as essential to avoid future crises of this type. If one branch oversteps its powers, and infringes on the role of another branch, the integrity ofthe government is ruined. Tuba City Judiciai Dist., 8 Nav. R. at The doctrine of "separation of powers" prevents the Council from interfering with certain core functions of the Judicial Branch. Under this doctrine, recognized as a fundamental principle of Navajo Nation government through Title Two of the Code, the Navajo Nation Council acts improperly when it interferes with the Judicial Branch's "duty to hear and decide cases independently." Eriacho v. Raman Dist. Ct., 8 Nav. R. 598, 602 (Nav. Sup. Ct. 2004). This Court heard and decided the fate ofchristopher Deschene. He was ruled disqualified ; as a matter of law, based upon a fluency requirement that the Council itself put in place. The Council's two attempts to remove that requirement have been vetoed by President Shelly. Thus, the law of the Navajo Nation is that a presidential candidate must be fluent, in Dine bizaad~nd Mr. Deschene was disqualified under that law. His disqualification was based largely on his failure to follow this Court's rules and orders and the orders of the Office of Hearings ~nd i Appeals. Any attempt by the Council to interfere with this final ruling is void for a violation of the separation of powers. j B. Separation of Powers Bars the Council from Attempting to Nullify Contempt Sanctions!. The contempt power is a "core function", which is an inherent power of this Court. Courts have inherent power to use contempt to punish disobedience. Platero v. Mike, 7 Nav. R. 130, 131 (Nav. Sup. Ct. 1995). Because the contempt power is inherent, the Council may not take the contempt power away by legislation? 2 See, i.e. Walker v, Bentley, 660 So.2d 313 (Fla. App. 1995) (legislature did not create contempt power and cannot take it away); In re Application of Hallinan, 126 Cal. App. 121, 132, 14 P.2d 797, 801, 1932 Cal. App. LEXIS 489, 18 (Cal. App. 1932) ("every court of general jurisdiction has the inherent power to punish for contempt, ofwhich it cannot be deprived even by the legislature.") Brief of the Petitioners,! 5

6 Because the contempt power is an inherent, "core" power, the Council does not have the, power to withdraw the power in general or in specific cases. To do so would be a severe interference with the operation of this Court. "There are certain circumstances in which the prohibition against infringement by one branch into the workings of another is absolute. 'lhe Council absolutely may not act as an appellate body over the judgments ofthe courts, nor can it pass legislation for the specific purpose ofaltering a party's court-granted right." Tuba City Judicial Disl., 8 Nav. R. at 168 (emphasis added). Because this aspect of separation of powerr is absolute, the resolutions must be invalidated. III. Both Statutes Should Be Invalidated Based Upon Dine Bi Beenahaz'aanii. A. Under Fundamental Law, The Dine Must Rise Above The Chaos. The chaos that is facing the Navajo Nation emanated from one individual's lies and desires to manipulate established Navajo law for the sole purpose of fulfilling his own sel'fish goals. Tiul lil'i dine biyooch'lid, bichiuiyideem(!l, bidooahodiikooh, doo nahagizigii t 'eiya biniinaa konizahdi hahoniichaad doo altso nihinahat'a' do~ Una de it,eh~~ yidiilk'(!(!d. 'I.i Ahididlciaslz saad bee alch 'i' yeilti' siidlii J dm ajisid bee ahaizdiif 'it' anihiilaa. Mr. Christopher Deschene was found to be in violation of the statutory requirement that a presidential candidate must fluently speak our sacred Dine language. Through the applicatiop of our Dine Laws, Mr. Deschene was informed that he was not qualified to be a candidate for the Navajo Nation Presidency. Deschene was treated with respect and dignity. Rather than accepting the application of our Dine law, Deschene decided on his own that he would attemp~ to circumvent current law and thus, began his manipulation, coercion, deviousness, and outright defiance of our hazho 'f principles and standards. In doing so, he coerced Navajo leaders "and i played upon their own selfish political antics. They began their quest to assist Deschene, using political manipulation and coercion, Nahat'a yigiz, {'OO ahoolnilee '. The end result is the current J Brief of the Petitioners,1 6 sc-cv-68-14,

7 _,,_~ -i. ~_ state of chaos and now, rightfully so, this matter is before the governmental branch that was created to help the people rise above the chaos, Al~(lii' Hashkeji Naal 'aah, ~he Judicial Branch. The legislation passed by the Navajo Nation Council and signed by President Shelly clearly I: reflect this practice of Nahal 'a yigiz and l'60 ahoolnilee'. Both resolutions must be invalidated. In the beautiful and true history of our Dine, there were two situations that are now reflected in the current world. In the Yellow World, Ni 'ltallso, the people were living in harmony ~!, with one another and with their surroundings. There were laws, rules, and regulations that' all were required to abide by and through compliance of such Natural Laws. There was order and harmony. One day it began to rain, and it rained for one full moon cycle. During this moon cycle! II period, floods began to happen. The people couldn't figure out what the cause of it was. They began to make preparations to escape the floods by immersing themselves into the giant reeds and through alilee and diyin k'ehgo. The reeds began to grow with them into the White World. i As the giant reeds continued to grow, the waters rose just as fast. The people were puzzled. The people eventually made it to the White World, Ni'halgai. As the people were embarking on the giant reeds, they noticed that M(l 'ii, the coyote"had!i something in his coat. The confronted him and they knocked out what Ma'ii was hiding inside his coat. Out came two Water Monster calves, Tehooltsodii biyazhi. The people finally concluded that the waters rose because M(l'ii had the two calves, and the mother water monster made the floods happen due to her dismay of M(l 'ii stealing the two calves. The two calves were taken back to their mother, and, immediately, the waters receded. All the people in the Yellow World were instructed that there is a law that stipulated that no person would go near the lake where the water monsters resided. It was told that if this law were not adhered to, grave consequences would result. The people scolded M(l'ii and told him leave. M(l 'if did not abide by established law. As a consequence, the whole Nation was subjected to leaving the Yellow World, relocating their lives, and almost losing their lives from drowlng Brief of the Petitioners, 7 SC-CV t

8 as the waters rose. The fundamental law established was that it only takes one person's selfishness to subject the whole Nation to adversity and to interrupt harmony. Thereby, lithe people must not overlook this one individual's deviant behavior and must not to be taken in by his deviousness, coercion and manipulation. The people took the calves back. They had to do an offering, and they reconnected w,ith the "original" law. Through that reconnection, all came back into balance. The people didn't make new laws or amend them to resolve the situation. Instead, the people reconnected back with the original law, made offerings to it, and proceeded to move on into the White World. Deschene committed perjury regarding his fluency in Dine bizaad, and he violated Navajo Nation Election laws. In so doing, he coerced and manipulated his supporters. The consequence today is that we have chaos: the election has been postponed, and the Coupcil enacts legislation to try to circumvent current law and hold Navajo institutions up to public ridicule. As a consequence, a just penalty was imposed upon Deschene. He was disqualified from the election. CD is a by-product of Deschene's coercion, manipulation, and deviant behavior. The legislation is thus invalid and should be invalidated. Moreover, the deviant delegates who manipulated the system and defied established law of the Nation and orders ofhhis court should be banned from holding their offices, just as the M(l'ii was banned from the communities. In the Black world, Ni 'hodilhil, mother Earth, Nahasdz(uini, and Father Sky, Yadllhil, were living in harmony with one another. One day, Ytidilhil began to have a nasty attitude. He played out his nasty attitude by being abusive, lying, and defiant towards the Earth and all the creations. Mother Earth had enough of it, and informed Father Sky about his wrongdqing, spelling it out for him what he was doing wrong. Instantly, Father Sky got mad and nidiichxo '. It did not rain for a long time. It devastated the environment on Earth, the people were suffering, Brief of the Petitioners; SC-CV

9 II and things became chaotic. The people began to blame one another, they began to hurt one another as they did negative things to each other and said negative things to each other. Finally, one day when the people were meeting, they assigned the Hummingbird, dahiit{hi, to visit Father Sky and find out what was happening. Father Sky finally revealed ~nd admitted that he was causing all of this chaos and suffering. But most importantly, Yadilhil admitted that what his spouse, Mother Earth, had told him was correct, that he had a nasty attitude, lied, and was abusive. He admitted that he was mad, he was hurt, and he had a feeling of vengeance because his ego was hurt and that was the only reason he made the rains stop and had caused all this chaos. He admitted his wrongdoings and he instructed the Hummingbird about, the songs, prayers, and offerings to make the rains go again. Dahiitihi brought these instructions back to the people and they carried out the prayers and songs as they made the offerings. The rains came back and everyone lived in happiness and harmony once more. The traditional law derived from this event is that there is no one who is above the law. It doesn't matter how powerful, how sacred, or, in this case, how "educated" you are, you are not above the law. Yadilhil is a very powerful person. Although his ego was pierced and he ;had caused all this chaos, he came back to the simple law of honesty, through his admittance that he was wrong. Relating that to the current situation, Chris Deschene, by established rules and laws, was respectfully informed that he was not qualified to be a candidate for the Navajo Nation President. Of course, that pierced his ego. He got mad, displayed his deviousness, coercion, lies, (and manipulation of his supporters and eleven Council Delegates. But the fact still remains, pursuant to established laws, he is unqualified to be a candidate for Navajo Nation President. The legislation that has now been passed by the Navajo Nation Council is merely evidence of Ita 'acllxq " vengeance, and an ill attempt to "make it stop raining" - to counter a true and factual Brief of the Petitioners,' ~ 9

10 statement that was given to Deschene, "you are not qualified to be a candidate for the Office of the Navajo Nation President". Although Deschene will not face his people that he was wrong by lying about his fluency of the Navajo language, because he is stubborn and egotistical, the Navajo Nation Supreme Court has the "prayers, songs, offerings" to make it "rain" again, to put things back into harmony ang to lead the way to ensure that such manipulation does not occur within our four sacred mountains. B. There Is No Concept Of Pardoning In Dine Culture And Beliefs. In examining our Fundamental Laws, the concept and practice of pardoning was!not found. There is no mention of pardoning anywhere in our history or fundamental laws. Instead, there are several times in our history and thus, embedded in our Fundamental Laws, that when a II law is violated, consequences and penalties are imposed. When these penalties are imposed, they are not retracted. The concept and practice of pardoning is a foreign concept which only the bilagaana have in their society and government; pardoning is not a Dine concept or practice. One day Mg. 'ii was strolling along and met up with the deer family. Mg. 'ii stopped them and began to harass the deer parents how their children were so beautiful and composed. He asked the deer parents how they made their children look so beautiful The deer, already knowing ~ Mg. 'ii's consistent questionable character, informed him that on a regular basis, they gather plknts and shrubs to bum. They then put their children in a small rock hole and they build a fire with the plants and shrubs inside the rock hole with their children inside. They close off the rock hole and let the fire bum. The hot cinders from the fire sparks on to the deer children and that's what makes those pretty black spots and the heat and smoke from the fire tans the skin so beautifully. Without thanking the deer parents, Mg. 'ii ran off and started gathering plants and shrubs. He gathered enough, found a small rock hole, and gathered his children. He told his children thal he I was going to make them pretty. He threw his children inside the rock hole and built the fire really Brief of the Petitioners'l 10 SC-CV

11 hot and closed it off. After the smoke stopped billowing from the rock hole, MIJ'ii opened it up and took out his children. He was shocked. His children were all burnt, blackened, well done, and their eyes were all burnt shut. They were ugly and half alive. MIJ'ii cried around and the air people heard him and took pity upon him. They told him that the Sun, J6honaa 'Ji, could help him and restore his children. MIJ'ii visited the Sun and pleaded with him. Finally, on the fourth attempt, the Sun accepted to do a ceremony for MIJ'ii's children. The Sun instructed Ma'ii to get his home ready. He was further instructed that he was not to watch the ceremony. The day of the ceremony came, and the Sun came to the place MIJ'ii said he was living. There was no home. MIJ'ii was just sitting under a tree with his children. The Sun asked pim where his home was and that is when MIJ'ii informed the Sun that he didn't have a home. He informed the Sun that because of his devious, manipulative ways and because he violated the laws, by stealing the water monster calves, he was banished from living amongst the people and that was why he didn't have a home. The Sun made a cedar tree arbor, ilntlzti', told MIJ'1i to go behind the hill, and he started his ceremony. When he was done, MIJ'it came into the arbor ~and saw his children restored to beautiful children. He attempted to take the children back, but the Sun told him that he wasn't qualified to parent such beautiful children anymore because he abused them and almost killed them. Again, MIJ 'it violated the law of children rearing and the Sun scolded him and ordered him to leave. The four children were sent into the four directions to serve as Holy People. The white, blue, yellow, grey foxes are used in our ceremonies today. The coyote continues to be homeless and continues to wander around, getting into people's business, and continues to lie, cheat and steal to survive and get his way. It was established at that time that the coyote would be a sign or a warninglthat something negative or evil was imminent when a coyote crosses your path.,i Brief ofthe Petitioners, 11

12 ..._".~---J_--,, The Fundamental Law established from this event is the rule that you cannot adopt someone else's way and reasons for doing things. Ifyou do, you face the consequence of things ~ turning out negatively or you face the chance of the other party deceiving you in their instructions. The deer family had their own ways of doing things and their own purposes of doing things. M(! 'ii tried to adopt that but he almost killed his children. The deer also deceived him in their instructions and that almost killed his children. Finally, after violating these laws, Ma'ii was banished from his own children. He could not return back to holding the offic<f of parenting; he was penalized by this banishment and relinquishment of his office to be a parent. He pleaded with the Sun, but he was not pardoned. This is the reason why we have no concept of pardoning in our fundamental laws or our Dine society. CD must be invalidated. C. Fundamental Law Insists On Firm Adherence To The Separation Of Powers. The separation of powers through balance and mutual respect was established in the black world when the concept of Male and Female, duality, was created. It was established 'that only through the balance of these two would life prosper. If there were imbalance, there would be disharmony. The concept of balance, equality, through mutual respect, love, empathy, protection, was one of the first natural laws created and established to serve as the foundation of the rest of our fundamentallaws.~ Through this creation, the concept of four was then created through the creation ofour sacred language. Again, balance and equality was embedded in the four directions, the four seasons, and all other concepts of four that were created. This Court eloquently told the story of the creation of our Dine governmental structure, in Shirley v. Morgan, No. SC-CV , slip op. 3 This Court has also found traditional origins for the separation of powers in the operation of the medicine people: "It is not acceptable for one medicine person to tell another how to conduct a ceremony.!any infringement destroys the healing powers ofthe ceremony. Thus, the prohibition on such intrusions is absolute." Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159, 167 (Nav. Sup. Ct. 2001). Brief of the Petitioners, 12 '

13 - -_._--- _._-'---, (Nav. Sup. Ct. May 28, 2010), where this balance and equality were also embedded and i serves as our fundamental laws of the separation but sacred cohesion of our governmental branches. Interestingly, since the 1989 Title 11 Amendments to our Navajo Nation Code, when the four branches of our government were created, only the Legislative Branch, on numerous occasions, has attempted to circumvent the "balance" of government. This branch tried to raise their salaries, tried to put the Navajo Nation President on administrative leave, and trie~ to initiate legislation to elect Supreme Court Justices and even attempted to delete our Fundamental Laws from out Navajo Nation Code, just because the Navajo Nation Supreme Court through the application ofour fundamental laws, kept check on their disharmonious actions. The present situation is no exception. Once again, the Navajo Nation Council has thumbed its nose at a standing order of the Navajo Nation Supreme Court by changing the ilaw when there is a standing order. To add insult to injury, the Council now falsely asserts a pardoning power, and seeks to usurp the powers and duties of the Judicial Branch. The Counyil's justification for their unwise actions is a concern over allegedly "disenfranchised" voters. One doesn't need to go beyond reading the "Findings" section of the two invalid resolutions to realize that those findings are factually wrong, misleading, and designed for one person in mind, disqualified candidate Christopher Deschene. It hard to accept that a branch in our Navajo Nation government could do such a t~ing and perhaps, it is not the Legislative Branch that is disharmonious, but rather a handful of individuals. If you look at the votes in passing these two legislations and all the other similarly Christopher Deschene-based legislation, it is the same delegates. Only eleven delegates voted for these resolutions. Hence, the "institution" of the Legislative Branch cannot be chastised. Instead, the few delegates who have circumvented the law and have made their conniving political ways Brief of the Petitioners, 13

14 T known are the ones who need to be "disciplined" by this Court by finding contempt and stripping them of their elected offices. In our history, the bear, mountain lion, porcupine, snake, birds, wolf, coyote and others all wanted to be leaders. They were given those opportunities to lead the people. However, each one of them had ego and ethical problems, and they created chaos. They were stripped of their leadership roles. They gave the governance of our people such a bad name that the Horned Toad finally stepped forward and reinstituted the fundamental laws to correct the government. Upon putting the government back on track using fundamental law, Horned Toad told the people to go to the four sacred mountains and allow the four sacred mountains, as prescribed by i the fundamental law, to be the ones to govern our people. The people went to the mountains, and our governance was reestablished and was sanctioned with the sunray and rainbow, which serves as our sovereignty. The sacred prayer feathers, k'eet'lu!m yalti', which signified the "reins" injthe operation of our government, were given to First Man who became the caretaker of these prayer feathers. Thus, the rules and ethics of leaders, naat'aanii, were established. It was establishedithat individuals who practiced leadership like the bear, mountain lion, coyote, and others, should not be given the role of a leader. It was also established that if a leader begins to practice such antics of these animal people while they were leaders, such individuals should be removed from their "offices" as were done to the animal/people leaders. That law was reestablished and reannointed by Monster Slayer and Born for Water upon their destruction of the monsters because the monsters were a consequence of such leadership practice. The legislation at issue in this case, CD and CD-81-14, reflects the leadership practices of the bear, coyote, snake and other leaders in our history. These poor leaders were eventually removed from their leadership roles because they created chaos and violated Brief of the Petitioners, 14

15 t established law. The legislation must be invalidated. 4 This Court has a sacred duty to ensure the. People's rights are protected and afforded to them. The People's right to vote needs to be carliied out. At the present moment, the people have a right to vote for Russell Begaye or Dr. Joe Shirley, Jr. They have a right to go to the polls on Election Day and freely go into a voting both ~nd choose their leader. This right to vote is and always has been in place and protected. The Deschene cult has been throwing stones at the Navajo Nation Supreme Court for its.' vigilance in protecting this right to vote and the right of the people to be presented with a qualified candidate. The laws ofour nation must be reaffirmed and utilized as they were intended to be used. It is clear that the People, as a collective, need to be respected. Deschene's supporters and eleven council delegates are NOT the People. IV. The Legislature Cannot Throw Out The 2014 Primary. It is the right and freedom of the Dine to choose leaders of their choice; leaders who will communicate with the people for guidance; leaders who will use their experience and wisdom to always act in the best interest of the people; and leaders who will also ensure the rights and freedoms of the generations yet to come. 1 N.N.C. 203(A). The "right and freedom of the Dine to choose leaders of their choice" has become axiomatic in Navajo law. See, i,e. Nelson v. Initiative Committee to Reduce Navajo Nation Council, No. SC-CV-03-10, slip op. at 15 (Nav. Sup. Ct. May 28, 2010). The Council may subject this fundamental right to reasonable regulation. Tsosie and White thorne v. Deschene, Nos. SC-CV and SC-CV-58-14, slip op. at 8 (Nav. Sup. Ct. October nunc pro tunc September 26, 2014). The fluency requirement is "beyond question" reasonable. Tsosie, slip op. 4 Of course, simply eliminating the legislation will not resolve the disharmony now prevalent in! our government. Individuals who practice such negative leadership practices and who practice leadership counter to our Jaws need to be removed, just as the bear, coyote, snake and other previous leaders were. Brief of the Petitioners;' 15

16 at 10. Because of this requirement, and because of his refusal to obey the rules and orders of this Court and the Office of Hearings and Appeals, Mr. Deschene was disqualified. When this occurred, 11 N.N.C. 44 required that the third place finisher be placed onthe general election ballot. Tsosie and Whitethorne v. Board ofelection Supervisors, No. SC-CV , slip op. at 8 (Nav. Sup. Ct. October 23, 2014). The third place finisher was Russell Begaye, who subsequently overcame an election challenge against him. Thus, the people have selected II two qualified candidates to face of in a general election: Russell Begaye and Dr. Joe Shirley; Jr. Collectively, 18,505 voters voted for one ofthose two men in the primary. The Navajo electorate has chosen its top two qualified candidates. In so doing, the Navajo people exercised their "right and freedom" to choose these leaders for the general election. See] N.N.C. 203(A). Now, because another man was lawfully ruled unqualified, the legislature wrongfully is attempting to throw out the entire 2014 primary election. This it cannot do. Once the people have exercised their freedom to select their leaders, and those leaders have survived any election challenges based upon reasonable election regulations, the election results must be honored by all including the Council. The results of the 2014 primary stand. V. The Legislature Cannot Allow A Disqualified Candidate to Run in a "Runoff Election". Buried In the middle of CD is a provision purporting to allow Christopher Deschene to run in the "special runoff election". In Section Three of the legislation, subsection C(5), the Council stated listed candidates allowed to run in the election, including Mr. Deschene, who was previously disqualified by this Court. The Council cannot put Christopher Deschene back on the ballot after he has been ruled disqualified by this Court. The Council attempted twice to remove the fluency requirement, both times that attempt was successfully vetoed by President Shelly. The fluency requirement is still law, and Deschene is still disqualified. Brief of the Petitioners, 16 ;

17 Res judicata prevents a legislature from seeking to nullify a final court judgment by subsequent legislation. Martin v. Man 0 War Rests., Inc., 2005 Ky. App. LEXIS 88, 22 LE.R. Cas. (BNA) 1324 (Ky. Ct. App. Apr. I, 2005); In re Estate of Reed, 236 Kan. 514, 693 P.2d i 1156, 1985 Kan. LEXIS 275 (Kan. 1985); Dowell v. Ross, 134 Ariz. 422, 657 P.2d 4] 0, 1982 Ariz. LEXIS 298 (Ariz. 1982). The Navajo Nation supports finality of judgments. Nelson, slip op. at ]4; Goldtooth v. Naa Tsis' Aan Community School, No. SC-CV-12-06, slip op. at 4 (Nav. Sup. Ct. April ] 6, 2009). Res judicata prevents the resurrection of an issue once it has been the subject ofa final decision by the Courts. Bradley v. Lake Powell Medical Center, No. SC-CV , slip op. at 7 (Nav. Sup. Ct. February 16,2007). This Court in Nelson properly addressed the situation: "if we don't provide finality on an issue of such governmental importance, animosity and conflict will likely continue in some other form and at the expense and well-being ofthe People". Nelson, id. As noted in the introduction to this brief, we must rise above the place of chaos, hoochxq '/andhoot 'i " and achieve hozhq for the good of the people. As this Court previously stated in this dispute: "The Final Order Disqualifying Respondent [Deschene] entered on October 9, 20]4 is final and enforceable." Order of Dismissal, October 21, Christopher Deschene is no longer a candidate for president, and the legislature cannot retroactively alter that reality. VI. The Council Does Not Have The Power to Pardon. The power to pardon is not inherent in any official, board, or body. It is vested in the sovereign people, and they have the power to repose it in any official or body that they can deem wise and expedient. State v. Magee Pub. Co., 29 N.M. 455, 486, NMSC-023, 40, 224 P. 1028, 1035 (N.M. 1924). Absent a conferral by the people, there is no pardon power. " In 1995, the Council purported to pardon Peter MacDonald. However, that pardon was never challenged in this Court, nor did a Court of the Navajo Nation ever expressly recognize the Brief of the Petitioners," 17 4f

18 pardon power. With their present petition, Petitioners directly challenge the right of the Council to grant a pardon without an express authorization of such power from the Navajo people. The Navajo people have never granted the right of pardon to any official or body. In fact, there is no power to pardon found anywhere in the Navajo Nation Code. A word search of the Code found only one statute that used the word "pardon", ]4 N.N.C That statute states that a Court may not pardon a DUI convict. Petitioners found no other appearance of the word "pardon" in the Code. The power of determining punishments is granted to the judicial branch, Alg:(Jji' Hask'eeji Naat'(uih, as is set forth in the Code: The leader(s) of the Judicial Branch (Alg:g:ji' Hask'eeji Naat'aah) shall uphold the values and principles of Dine bi beenahaz'aanii in the practice of peace making, obedience, discipline, punishment, interpreting laws and rendering decisions and judgments. (emphasis added) I N.N.C. 203(E). Only Alg:g:j( Hask'eeji Naat'aah is given this power. The legislative branch, Alg:g:ji' Naat'aji Naat'aah, is given the power to "enact policies and laws to address the immediate and future needs". The legislature is not given the power to determine punishmef/ts and obedience. Thus, in attempting to enact a "pardon", the Council tried to assume a power that it did not have. The judiciary, and only the judiciary, is given the power to determine punishments and obedience. Proponents of CD claimed that the power to pardon can be found in 2 N.N.C. ] 02(B) "All powers not delegated are reserved to the Navajo Nation Council." This is false. Since the power to determine obedience and punishments is fundamentally a power that belongs to the judiciary, it is not a power that is "reserved to the Council." CD-8] -14 must be ruled invalid. II Brief of the Petitioners, 18

19 VII. Public Policy Supports Invalidation of the Statutes. Finally, Petitioners feel that the flawed premise of these two resolutions should be addressed. No voter has been disenfranchised. Voters do not have the right to vote for unqualified candidates. In fact, since disenfranchisement is seen as an important public policy concern, it is time for someone to stand up for the 41,469 Navajo voters (eighty-one percent!) who voted for candidates other than Deschene. The Council wants to throw out all of their votes so that it can.' protect one disqualified candidate. This is the true definition ofdisenfranchisement. Two candidates were not disqualified and earned the right to face off in the general election. In order rise above the chaos, this election must occur immediately. Conclusion For the foregoing reasons, this Court should invalidate CD and CD-81-14, lift the stay ofthe obligation to hold the general election, and hold the general election immediately. MITTED this 23 rd day ofjanuary, David R. Jordan' Counsel for Petitioner Tsosie The Lawrffices ofjusti~ ~I \,2nes unsel for Petlfioner Whitethorne Copies were ed and mailed on 1/23115 to: Steven C. Boos Dr. Joe Shirley, Jr. Ronald Haven 835 E. Second Ave. Suite 123 PO Box 37 Mariana Kahn Durango, CO Window Rock, AZ Office ofthe Chief Legislative Counsel Counsel for NBOES PO Box 3390 Russell Begaye Window Rock, AZ Michael P. Upshaw PO Box EastIndian Bend Road Ste. 101 Window Rock, AZ Scottsdale, Arizona Counsel for NBOES Counselfor NEA and Wauneka ~~ Navajo Nation Council Brief of the Petitioners; 19