Government Outline. Contents

Transcription

1 Government Outline Topics covered: Issues of sovereign immunity, taxation, separation of powers and operation of the government. For cases relating to the operation of the judiciary, see Courts Outline. For cases relating to legislation, see Statutory Interpretation Outline. For cases relating to elections, see Elections Outline. For cases relating to the relationship between the government of the Navajo Nation and state governments or the federal government, and for cases describing the scope of Navajo sovereignty and power, including the Treaty of 1868, see Federal Indian Law Outline. Contents I. Diné bi beenahaz áanii... 1 A. Duties of a naat áanii Becoming a naat áanii Fiduciary responsibility Council as naat áanii Duty of respect Naat áanii must find a solution Status as public figures Protection from liability Lead only so long as they enjoy the respect of the people... 2 B. Duties relating to the adoption of statutes or rules by governmental bodies... 2 C. Government s use of Diné Bi Beenahaz áanii in forming public policy... 3 D. Government must beg leave of the people... 3 E. Traditional views of community Collective rights of community Navajo traditions regarding harmony and social order Chapter meetings as continuation of community consensus building... 7 II. Legislation relating to the operation of government... 7 A. Ethics in government Prohibited conduct Procedure of the Ethics and Rules Committee... 9 B. Privacy and access to public records General descriptions of the Privacy Act... 9

2 2. Public access to records Privacy for certain records Labor Commission proceedings C. Procurement Act III. The operation of the Navajo Nation Government A. Overall nature of government General responsibilities of all public officials Color of official authority Power comes from the Navajo people Tripartite government Separation of powers Checks and balances B. Operation of the Executive Branch Generally Operation of the Attorney General Limitations on power C. Operation of the Legislative Branch General duties of Legislative Branch Policy and law making power Waiver of governmental authority Location of meeting of the Council Spending Limits on power D. Operation of the Judiciary Branch E. Operation of chapters F. Commission on Navajo Government Development IV. Taxation A. Navajo Nation s power to tax In general Power to tax mining activities Power to tax non-indians... 21

3 4. Power to tax non-indians on fee land Withdrawal of taxing power B. Due process issues C. Pay first, litigate later D. Uniform Tax Administration Statute E. Anti-injunction statute F. Types of Navajo taxes Navajo Nation Hotel Occupancy Tax Business Activity Tax V. Sovereign immunity A. General principles Navajo Nation is immune from suit absent valid waiver Purpose of the Sovereign Immunity Act All issues resolved in favor of government Jurisdictional Scope of immunity protection Waiver of sovereign immunity B. Exceptions to sovereign immunity Insurance exception Mandamus exception Civil rights exception C. Procedure for suing the Navajo Nation Procedures must be strictly followed Notice of claim Naming of parties Changing venue to Window Rock... 32

4 I. Diné bi beenahaz áanii A. Duties of a naat áanii 1. Becoming a naat áanii In Navajo thinking, the selection of a person by voters is one of two requirements for a candidate to become a naat áanii. That person must also accept the position, and, to accept, must take an oath to serve the laws of the sovereign government within whose system he or she will serve the people- naat áanii ádee hadidziihi. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007). Only when a person accepts through an oath will all of the Navajo people say that a person has been properly installed as a naat áanii naat áanii idlį bee bitooszįį. In other words, Diné binant a i bee bi dooszįįd or Diné binaat áanii bee bi dooszįįd. Matter of Grievance of Wagner, No. SC-CV-01-07, slip op. (Nav. Sup. Ct. May 14, 2007). 2. Fiduciary responsibility All public officials in the Nation have a fiduciary responsibility to the Navajo people to execute the trust the People have placed with them in the administration of the government. Thinn v. Navajo Generating Station, Nos. SC-CV and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). The naat aanii was expected to be honest, faithful and truthful in dealing with his people. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989). 3. Council as naat áanii The Council works for and on behalf of the People in their role as naat áanii in the Naat ájí Nahat ááh (Legislative Branch). The Council legislates in the best interest of the People. Thinn v. Navajo Generating Station, Nos. SC-CV and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). 4. Duty of respect Words are not to be used to offend or intimidate, particularly in by a supervisor, which, in the context of Navajo thinking makes him a naat aán i. Kesoli v. Anderson Security Agency, 8 Nav. R. 724 (Nav. Sup. Ct. 2005). As a naat'aanii a supervisor has a responsibility to conduct himself thoughtfully and carefully with respect for his employees under the principle of házhó'ógo including utilizing any k'é mechanisms the employer provides to deal with disputes among employees. Kesoli v. Anderson Security Agency, 8 Nav. R. 724 (Nav. Sup. Ct. 2005). 5. Naat áanii must find a solution Under Fundamental Law, the leaders do not ever lay down the trust to protect employment relationships and the laws because a leader is taught that they must find the solution, for it is always available. Thinn v. Navajo Generating Station, Nos. SC-CV and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007).

5 Naat áanii idl98go éí t áá nant[ a dóó t áá nahon['alá, háálá [áhgóó t áá nist[á dahwiizt i ákondi, Diné Bibeehaz áanii dóó hane binahj8 baantsáhákeesgo éí choó įįł dóó hasih ntsáhákeesígíí beego éí t áá bik ee aan hodeezt i dóó chi'dahwiizt i, dóó inda bikáá háadahwiizt i. Diyin Dine é Ts aa hadeiidiilaaígíí éí t áá ákót éigo yił hadadeiidiilaalá; yah óót i, ałhééhonit i, dóó ch ééhonit i, dóó éí t óó dádeesł =- da. Binahjį éí t aa hat'éigi shíí hanahat'a' bee nistł ajiyáago hanahat'a' bee hazhdinoodzíí dóó ajisiihgoda éí dóó hanahat'a' dóó habeehaz áanii doo t óó ni nizhdoołéeda hatsodizin dóó haáne éí bee bikáá haazhdoodááł dóó bee nistł ahaz i'65 bee hózh==go bik idiyaa nizhdooleeł dóó bi 22zh doo gááł. (It is hard and difficult to be a leader, but according to the Navajo law, it is possible to enter a situation and to exit the situation. According to the basket design, there is an opening and the design is not sealed off. In this way it is always possible when you are a leader, you could make a mistake and could also make the wrong decision to say something, but you could lay down your leadership and use prayer or native philosophy to restore yourself in good way. In this way, it will be a blessing again and you will feel positive again.) Thinn v. Navajo Generating Station, Nos. SC-CV and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). As demonstrated in the design of the sacred wedding basket, a leader, through adherence to the laws, the analysis of the stories of the Diné journey, and a positive approach will find a solution (bi 2 iídzá) around, through, or over that which confronts the people. Thinn v. Navajo Generating Station, Nos. SC-CV and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). 6. Status as public figures Some sings attracted participants from other communities, and as many as a thousand people might gather for one of the more important ceremonies. A singer s influence would extend beyond the ceremonial occasion only if he was endowed with the personal qualities that inspire respect, the qualities associated with a naat aán i. Given this, the Navajo practitioner or apprentice is a public figure. Hasteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). The ceremonial practitioners are public figures of general fame or notoriety in the community and have pervasive involvement in the affairs of the society. Hasteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). 7. Protection from liability A leader is protected in exercising authority until he knows he has been relieved of authority. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991). 8. Lead only so long as they enjoy the respect of the people Placing an executive officer on administrative leave has its roots in Navajo tradition. After epic battles were fought by the hero twins, the Navajo people set out to become a strong nation. It became necessary to select a naat aán i by a consensus of the people. Such a leader was chosen based upon his ability to help the people survive. If he lost the trust of the people, they stopped following him. In re Certified Questions II, 6 Nav. R. 105 (Nav. Sup. Ct. 1989). B. Duties relating to the adoption of statutes or rules by governmental bodies The rule requiring a clear statement of intent before applying a statute retroactively is adopted from the United States Supreme Court but is consistent with the Navajo concept of ííshjání

6 ádooniíl, which mandates that Navajo laws must be clear so that our people may understand them. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005). This clarity requirement takes on particular importance in laws affecting homes, as homes hold a central place in Navajo thinking. Phillips v. Navajo Housing Auth., 8 Nav. R. 751 (Nav. Sup. Ct. 2005). C. Government s use of Diné Bi Beenahaz áanii in forming public policy The decision of the people through their local and national governments on how to use particular tracts of land is premised upon the importance of k'e to maintaining social order. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005). A land use decision by the people through their governments is the balance struck between the individual land user and the needs and desires of the community. This is a part of the broader Navajo traditional principle of freedom with responsibility. An individual has much freedom in Navajo society, but that freedom must be exercised with respect for self, family, relatives, and the community at large. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005). The Navajo Nation Council recognized that Dine' Bi Beenahaz áanii teaches that the rights and freedoms of the individual are not the only considerations. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005). D. Government must beg leave of the people Under the concept of Baa ní jookąąh or you beg leave of your people, leaders should obtain the permission of the people. This is the Navajo way. You approach and ask. The act of approach suggests humility and equality. The cornerstone of this custom is k é. Judy v. White, 8 Nav. R. 510 (Nav. Sup. Ct. 2004). E. Traditional views of community 1. Collective rights of community Just as there are fundamental rights and freedoms of individuals as acknowledged by the Council in the Navajo Bill of Rights, there are fundamental rights of the collective People, the tribal nation, as acknowledged and recognized in the Fundamental Law statute. Thinn v. Navajo Generating Station, Nos. SC-CV and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). The collective Navajo people, who have chosen to utilize their common land for economic benefit, should be respected under k'e. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005). 2. Navajo traditions regarding harmony and social order a) Sacred words as key to social harmony (1) Words are always sacred Words are sacred and never frivolous in Navajo thinking. Kesoli v. Anderson Security Agency, 8 Nav. R. 724 (Nav. Sup. Ct. 2005). Words are sacred and never frivolous in Navajo thinking. Smith v. Navajo Nation Department of Head Start, 8 Nav. R. 709 (Nav. Sup. Ct. 2005).

7 (2) Words are to be used with caution and respect; not to offend Under the Navajo concept of k é, respectful use of one's words requires the reservation, circumspective or complete avoidance of judgmental characterizations of others which overlybroadly designate a certain negative trait across a wide timeframe, or which inaccurately and negatively characterize a single negative trait of a person to be the permanent, complete and unchanging character of a person, The understanding is that when one fails to properly exercise respect by engaging in these types of inaccurate characterizations of another person, he or she risks endangering the future wellbeing of the person, the person's family and the community (a network of interrelated families) by creating conditions which may be conducive toward maintaining or exacerbating the existence of such characteristics. Baldwin v. Chinle Fam. Ct., No. SC-CV-37-08, slip op. (Nav. Sup. Ct. October 30, 2008). Words are not to be used to offend or intimidate. Kesoli v. Anderson Security Agency, 8 Nav. R. 724 (Nav. Sup. Ct. 2005). As a matter of Navajo tradition and custom, people speak with caution and respect, choosing their words carefully to avoid harm to others. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996). Speech should be delivered with respect and honesty. This requirement arises from the concept of ke, which is the glue that creates and binds relationships between people. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996). (3) Basis of Navajo contract law In contract cases, all words must have meaning to conform to the Navajo common law principle that every word is powerful, sacred and never frivolous. Office of Navajo Labor Rel. ex rel. Bailon v. Central Consolidated School Dist., 8 Nav. R. 501 (Nav. Sup. Ct. 2004). Navajo common law requires one to follow through on a valid agreement made with another person. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996). Traditionally, when people make promises between one another, oral or written, they should honor those promises. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996). The Navajo way of dealing with a breach of a promise is to compensate the injured party and restore and maintain the relationship between the parties. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996). (4) Ability to speak Navajo language The ability to speak (the Navajo language) is a gift bestowed upon the Navajos by the holy beings as the holy language of white shell saad, turquoise saad, abalone saad, and jet saad. Saad is creative thinking, planning and debating in Navajo society. Communication is essential to life. It is the basis of k e, relationships and respect. Thus, while on one hand saad is sacred, on the other hand saad is the basis of teaching, which includes ridicule. Hasteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). Language, perhaps the most intricate phase of culture by its nature symbolical but in addition to the expected linguistic symbolism, there is a ritualistic symbolism, like that of color, direction, and number. Speech, as one of man s faculties, references in prayer to the tip of the speech, the existence of the word from the very beginning of conceivable time, the requirement that prayer and song be accurately reproduced in spite of stringent restrictions and a strain on the memory...

8 The painted symbol of a prayer with its word is further proof of Navajo recognition of the power of the word. Hasteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). (5) Speech must be free Navajo free speech is sacred. Hasteen v. Tapaha, 7 Nav. R. 532 (Ship. Dist. Ct. 1997). b) Freedom with responsibility toward fellow community members An individual has much freedom in Navajo society, but that freedom must be exercised with respect for self, family, relatives, and the community at large. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005). When evaluating personal rights, the rights and freedoms of the people as a whole must also be recognized. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005). K é contemplates that while an individual within Navajo society enjoys a large degree of freedom, that freedom must be exercised with respect for self, family, clan relatives, and the community at large. Williams v. Lee, 8 Nav. R. 783 (W.R. Dist. Ct. 2003). K é promotes cooperation and compassion, while stressing the reciprocal duties and responsibilities owed between individuals, allowing the members of a community to thrive in hózh=. Williams v. Lee, 8 Nav. R. 783 (W.R. Dist. Ct. 2003). A fundamental Navajo principle is freedom with responsibility. Navajo Nation v. Crockett, 7 Nav. R. 237 (Nav. Sup. Ct. 1996). This is part of the broader Navajo traditional principle of freedom with responsibility. An individual has much freedom in Navajo society, but that freedom must be exercised with respect for self, family, clan relatives, and the community at large. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996). c) Critical nature of respect in preserving social harmony Navajo Fundamental Law strongly acknowledges the core importance of k é. Baldwin v. Chinle Fam. Ct., No. SC-CV-37-08, slip op. (Nav. Sup. Ct. October 30, 2008). The Navajo concept of k é defines a peaceful and harmonious relationship which respects the present and future well being of the person. At the core of retaining k é is maintaining respect for others, particularly respect in one's use of words in talking about others. Baldwin v. Chinle Fam. Ct., No. SC-CV-37-08, slip op. (Nav. Sup. Ct. October 30, 2008). The Navajo concept of k é requires that families be properly protected from non-existent or faulty conclusions that do not meet the standard of clear and convincing evidence. Baldwin v. Chinle Fam. Ct., No. SC-CV-37-08, slip op. (Nav. Sup. Ct. October 30, 2008). Hózhó ógo is not a man-made law, but rather a fundamental tenet informing us how we must approach each other as individuals. When discussions become heated, whether in a family setting, in a community meeting or between any people, it's not uncommon for an elderly person to stand and say hózhó ógo, hózhó ógo sha áłchíní. The intent is to remind those involved that they are Nohookáá Diné, dealing with another Nohookáá Diné, and that therefore patience and respect are due. Navajo Nation v. Rodriguez, 8 Nav. R. 604 (Nav. Sup. Ct. 2004). When faced with important matters, it is inappropriate to rush to conclusion or to push a decision without explanation and consideration to those involved. Áádóó na níle dii éí dooda. This is hózhó ógo, and we see that this is an underlying principle in everyday dealings with relatives and other individuals, as well as an underlying principle in our governmental institutions. Modern

9 court procedures and our other adopted ways are all intended to be conducted with hózhó ógo in mind. Navajo Nation v. Rodriguez, 8 Nav. R. 604 (Nav. Sup. Ct. 2004). The law of k é plays through Navajo society, even in the Judicial Branch of the Navajo Government. The Judge s Code of Conduct indicates, A judge should behave to everybody as if they were his or her relatives. Relatives are the epitome of k é. Thus, even judges are subject to learn k é. Benally v. Benally, 8 Nav. R. 796 (Kay. Fam. Ct. 2003). Navajo common law highly values respect. Begay v. Navajo Election Admin., 8 Nav. R. 241 (Nav. Sup. Ct. 2002). In light of k e, due process can be understood as a means to ensure that individuals who are living in a state of disorder or disharmony are brought back into the community so that order for the entire community can be reestablished. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996). K e recognizes your relations to everything in the universe, in the sense that Navajo share respect for others and for a decision made by the group. It is a deep feeling for responsibilities to others and the duty to live in harmony with them. It has to do with the importance of relationships to foster consensus and healing. It is a deeply-felt emotion which is learned from childhood. To maintain good relations and respect one another, Navajos must abide by this principle of k e. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996). One must respect his or her relatives in order to maintain social order. Ben v. Burbank, 7 Nav. R. 222 (Nav. Sup. Ct. 1996). d) Distributive justice and the individual s duty to the community K e frames the Navajo perception of moral right and therefore this Court s interpretation of due process rights. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996). K e stresses the duties and obligation of individuals relative to their community. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996). Distributive justice is concerned with the well-being of everyone in a community. For instance, if I see a hungry person, it does not matter whether I am responsible for the hunger. If someone is injured, it is irrelevant that I did not hurt that person. I have a responsibility as a Navajo to treat everyone as if he or she was my relative and therefore to help that hungry person, I am responsible for all my relatives. This value which translates itself into law under the Navajo system of justice is that everyone is part of a community, and the resources of the community must be shared with all. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996). Distributive justice requires sharing of Navajo Nation resources among eligible applicants. It has its roots in Navajo traditional concepts of community progress through sharing. This is part of Navajo egalitarianism. Atcitty v. Window Rock Dist. Ct., 7 Nav. R. 227 (Nav. Sup. Ct. 1996). e) K e as applied in specific cases (1) Land policy The decision of the people through their local and national governments on how to use particular tracts of land is premised upon the importance of k'e to maintaining social order. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005). A land use decision by the people through their governments is the balance struck between the individual land user and the needs and desires of the community. This is a part of the broader Navajo traditional principle of freedom with responsibility. An individual has much freedom in

10 Navajo society, but that freedom must be exercised with respect for self, family, relatives, and the community at large. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005). (2) Leases K e does not create an "equitable lease" in business property. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005). K'e does not mandate an attempted negotiation for a "renewal" when the alleged lessee has no underlying right to the property and has operated without respect for the community. Navajo Nation v. Arviso, 8 Nav. R. 697 (Nav. Sup. Ct. 2005). 3. Chapter meetings as continuation of community consensus building The chapter meeting is a continuation of traditional family, neighborhood and council gatherings where everyone had the opportunity to speak, and decisions were reached through consensus. Downey v. Bigman, 7 Nav. R. 176 (Nav. Sup. Ct. 1995). II. Legislation relating to the operation of government A. Ethics in government 1. Prohibited conduct a) Claiming salaries while performing elected duties Navajo Nation employees who are also elected officials are prohibited from claiming a salary while attending a meeting as an elected official, and are required to take annual leave or leave without pay to tend to their elected position duties. Barton v. Navajo Nation Ethics and Rules Office, 8 Nav. R. 353 (Nav. Sup. Ct. 2003). Navajo Nation employees are not entitled to pay based upon flex-time while attending to elected duties. Barton v. Navajo Nation Ethics and Rules Office, 8 Nav. R. 353 (Nav. Sup. Ct. 2003). b) Conflicts of interest Government employees are prohibited from conduct which creates an appearance of: 1. Using public office for private gain; 2. Giving preferential treatment to any special interest organization or person; 3. Impeding governmental efficiency or economy; 4. Losing or compromising complete independence or impartiality of action; 5. Making a government decision outside official channels; or 6. Adversely affecting the confidence of the people in the integrity of the government of the Navajo Nation. Kirk v. ONLR, 7 Nav. R. 363 (Nav. Sup. Ct. 1998). Governmental employee seeing a conflict of interest must report the conflict to his superior and to the Ethics and Rules Committee. The Committee shall then assign the investigative functions to an individual who does not have a conflict of interest. Kirk v. ONLR, 7 Nav. R. 363 (Nav. Sup. Ct. 1998). (1) Public officials shall not (Al) have direct or indirect (A2) financial or other economic interest, nor engage in employment or an economic activity which (A3) necessarily involves (A4) inherent substantial conflict, or appears to have a substantial conflict (A5) with official responsibilities or duties. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

11 This statute prohibits any conflict of interest, defined as having a direct or indirect interest in an activity which creates, or appears to create, a substantial conflict with the duties of office. It requires proof of an interest or stake in an activity which conflicts with one's duty to serve the public and not use the public position for personal gain. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991). (1) When a public official is required to take official action (2) on a matter in which the official has a personal economic interest, (3) the official must first consider eliminating the interest, but if that is not feasible (under another section), (B1) must abstain from sponsoring, influencing or in any manner attempting (B2) to influence any decision or determination (B3) which would favor or advance the official's personal economic interest. Section 3753(e) (1) (C) requires a public official with an interest to (Cl) abstain from voting or participating in the decision or determination (C2) unless otherwise directed by the authorized presiding official of the body making the decision or determination (C3) or otherwise required by law, (C4) or unless the official's vote, position, recommendation or participation is contrary to his personal economic interest. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991). Note: this holding is presented in strikeout format because it refers to 2 N.N.C. 3753, which has been abrogated. Abstention from official action where conflicts exist is now addressed at 2 N.N.C Reference should be made to the current statute. 2 N.N.C. 3753(e)(1)(B) prohibits a public official who has a financial interest in a proposed deal with the Navajo Nation from influencing or taking part in a decision which would give him economic benefit. Subsection (e)(1)(c) prohibits an official with an economic benefit from participating in a possibly beneficial governmental decision unless a superior directs participation, or it is required by law, or the official takes a stand contrary to his own interest. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991). Note: this holding is presented in strikeout format because it refers to 2 N.N.C. 3753, which was abrogated. Conflicts of interest are now addressed at 2 N.N.C Reference should be made to the current statute. c) Accepting private benefits for performing public duties (1) Public officials are prohibited from (2) soliciting or accepting for themselves or another (3) any gift (including an economic opportunity, favor, service, or loan; excluding loans from a regular lending institution, on generally available terms) or other benefit worth $100 or more in any calendar year (4) from any person, organization or group which (Al) has, or is seeking to obtain (A2) contractual or other business or financial relationships or approval from any office with which the public official is associated or employed; or (CI) has any interest which (C2) within two years, (C3) has been directly involved with, or affected by, the performance or nonperformance of any official act or duty of the official or the official's office (by association or employment) or (C4) which the public official knows or has reason to believe is likely to be so involved or affected. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991). Note: this holding is presented in strikeout format because it refers to 2 N.N.C. 3753, which has been abrogated. Prohibited gifts and loans are now addressed at 2 N.N.C Reference should be made to the current statute. The gist of the prohibited conduct as to those who want to do business with the Navajo Nation is that a public official must not accept anything of the value of $100 or more from them in a given year, if the business wants to get something from the official's office. This is designed to prevent gifts or benefits to officials who may later be in a position to favor the giver. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991).

12 The gist of the prohibition for those who have done business or gotten benefit from the Navajo Nation within the past two years is that a public official may not accept a gift or benefit where the official, or his office dealt with the giver, or the official knows or has reason to know about the involvement. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991). The statute prohibits the practice of businesses that have done business with the Navajo Nation giving a gift or benefit to influence continued favors. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991). To establish that a public official has received illegal gifts or benefits, the Navajo Nation must prove the identity of the official, the identity of the giver, and the nature of the gift or benefit. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991). One cannot utiltize public office for private gain. Navajo Nation v. MacDonald, 6 Nav. R. 432 (Nav. Sup. Ct. 1991). 2. Procedure of the Ethics and Rules Committee Ethics and Rules Committee rule requiring Navajo words to be translated into English for the record did not require Committee to make a translator available at a hearing. Barton v. Navajo Nation Ethics and Rules Office, 8 Nav. R. 353 (Nav. Sup. Ct. 2003). B. Privacy and access to public records 1. General descriptions of the Privacy Act The Privacy Act sets up procedures by which the general public has a means to access records and information relating to the operation of the Navajo Nation while preserving the privacy interests of individuals and entities. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006). The Privacy Act attempts to regulate access to records, defined as certain documents and other physical objects held by government offices. It divides records into two main categories. The first category is records that must be disclosed, or public records, and the second is records that cannot be disclosed, or protected records. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006). 2. Public access to records Generally information on court proceedings is open to the public, so that the Navajo people may know what its courts are doing. Johnson v. Tuba City Dist. Ct., No. SC-CV-12-07, slip op. (Nav. Sup. Ct. December 7, 2007). The Privacy Act further divides "public records" into two apparently separate categories: records that are public except to the extent they contain information expressly permitted to be treated as protected as provided for in 2 N.N.C. 85, and records that are normally public, but to the extent that a record is expressly exempt from disclosure, access may be restricted under 2 N.N.C. 85. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006). Section 84(B)(11) of the Privacy Act identifies certain records that are normally public : [r]ecords which would disclose information relating to formal charges or disciplinary action against a past or present governmental entity employee if: (a) The disciplinary action has been completed and all time periods for administrative appeal have expired; and (b) The formal charges

13 were sustained. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006). The list of public records in Section 84 of the Act cannot be used to bar access to other records by negative implication. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006). Section 84(B)(11) is unlike any of the other categories of public records. It allows access to government employee records only after disciplinary action is complete and only when the government employer prevails. Department of Child Support Enforcement v. Logg, No. SC-CV , slip op. (Nav. Sup. Ct. August 24, 2006). The Privacy Act lists a total of twenty-two types of records that are public, but also states that the list of public records is not exhaustive and should not be used to limit access to records. This promotes transparency in government and prohibits the government from claiming a negative implication relating to records that are not on the list. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006). 3. Privacy for certain records The Navajo Nation Code prohibits court staff from distributing certain types of court information, requires certain proceedings to be closed to the public, and prohibits certain people from revealing information concerning specific types of cases. Johnson v. Tuba City Dist. Ct., No. SC-CV-12-07, slip op. (Nav. Sup. Ct. December 7, 2007). 4. Labor Commission proceedings The Privacy Act does not regulate access to Labor Commission proceedings, regardless of whether Commission records are covered by Section 84. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006). Section 84(B)(11) does not apply to Labor Commission records, but only to records concerning Navajo governmental employee grievances. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006). The Privacy Act s provisions relating to employee grievances do not extend to Labor Commission proceedings. Department of Child Support Enforcement v. Logg, No. SC-CV-22-06, slip op. (Nav. Sup. Ct. August 24, 2006). C. Procurement Act The Procurement Act was created to enforce the Navajo Nation Collection System in the best interests of the Navajo Nation. PC&M Const. Co. v. Navajo Nation, 7 Nav. R. 96 (Nav. Sup. Ct. 1994). If a business has an outstanding money judgment against it in favor of the Navajo Nation upon due notice the Navajo Nation may offset its money claim against any amount it owes to or has account payable to the business. PC&M Const. Co. v. Navajo Nation, 7 Nav. R. 96 (Nav. Sup. Ct. 1994). The Procurement Act does not exclude judgments from offset proceedings entered in favor of the Nation acting in an ex relatione capacity. PC&M Const. Co. v. Navajo Nation, 7 Nav. R. 96 (Nav. Sup. Ct. 1994).

14 III. The operation of the Navajo Nation Government A. Overall nature of government 1. General responsibilities of all public officials A Navajo leader cannot hand over a duty on a matter that impacts the people to a third person; otherwise it would be considered a betrayal of trust. Begay v. Alonzo, No. SC-CV-40-08, slip op. (Nav. Sup. Ct. November 7, 2008). All public officials in the Nation have a fiduciary responsibility to the Navajo people to execute the trust the People have placed with them in the administration of the government. Thinn v. Navajo Generating Station, Nos. SC-CV and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). Under Fundamental Law, the leaders do not ever lay down this trust and the laws because a leader is taught that they must find the solution, for it is always available. Thinn v. Navajo Generating Station, Nos. SC-CV and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). As demonstrated in the design of the sacred wedding basket, a leader, through adherence to the laws, the analysis of the stories of the Diné journey, and a positive approach will find a solution (bi 2 iídzá) around, through, or over that which confronts the people. Thinn v. Navajo Generating Station, Nos. SC-CV and SC-CV-26-06, slip op. (Nav. Sup. Ct. October 19, 2007). In Navajo society, the integrity of the government is the key to its viability. If the governed cannot trust that their government is essentially just and accountable, then there arises widespread belief that the government benefits only a few. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). A Navajo leader can be relieved of authority if he betrays the people's interests. A leader is judged by his actions, and if he has betrayed the public trust placed in him, punishment follows. Navajo Nation v. MacDonald, Sr., 6 Nav. R. 432 (Nav. Sup. Ct. 1991). 2. Color of official authority Navajo tradition protects a person clothed with authority in the exercise of that authority until the person actually knows he or she has been relieved of authority. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991). There is no liability where a public official obeys the lawful command of the government or if an official carries out the imperative duty of obeying an order of a superior in good faith. Navajo Nation v. Platero, 6 Nav. R. 422 (Nav. Sup. Ct. 1991). 3. Power comes from the Navajo people The government of the Navajo Nation belongs to the Navajo people. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). A government cannot operate effectively unless the citizenry has confidence in its government. Public confidence comes when citizens believe that their government can protect them from tyranny and from violations of their rights. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

15 4. Tripartite government The Navajo Nation government is comprised of three co-equal branches, each with its own area of responsibility and limitations of power. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). Prior to the Title II Amendments, the Navajo Nation government operated as a two-branch government: the Legislative and Judicial Branches. Under that scheme, the Navajo Tribal Council controlled both the legislative and executive functions of government. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). The Chairman of the Navajo Tribal Council was the chief legislative officer as well as the chief executive officer. This unilateral control left no room for the exercise of checks and balances. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). The Navajo Nation Council undertook the Title II Amendments which separated governmental powers into three separate and equal branches. The lack of definition of power and separation of legislative and executive also overly involve itself in the administration of programs thereby demonstrating the need to limit the legislative function to legislation and policy decision making and further limit the executive function to implementation of laws and representation of the Navajo Nation. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). In the statement of the purposes of the Title II Amendments, the legislature made clear its intent to establish three separate branches of government in order to decentralize power, limit the functions and powers of each branch, and provide for checks and balances among the branches. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). 5. Separation of powers a) Fundamental The principles of separation of 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 (Nav. Sup. Ct. 2001). The leaders who debated and enacted the Title II Amendments were adamant that the reorganized government would function according to principles of separation of powers and checks and balances. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). It is an ingrained principle in our government that the three departments of government are coordinate and shall co-operate with and complement, and at the same time act as checks and balances against one another but shall not interfere with or encroach on the authority or within the province of the other. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). It is abhorrent to the principles of our legal system and to our form of government that courts, being a coordinate department of government, should be compelled to depend upon the vagaries of an extrinsic will. Such would interfere with the operation of the courts, impinge upon their power and thwart the effective administration of justice. These principles, concepts, and doctrines are so thoroughly embedded in our legal system that they have become bone and sinew of our state and national polity. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001).

16 b) Purposes of doctrine The separation of powers and checks and balances contained in our government provide mechanisms for addressing corruption, abuses of discretion, and lapses of judgment. They prevent each branch from exercising unfettered discretion. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). If one branch oversteps its powers, and infringes on the role of another branch, the integrity of the government is ruined. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). c) Diné Bi Beenahaz áanii Separation of functions is a concept that is so deeply rooted in Navajo culture that it is accepted without question. It is essential to maintaining balance and harmony. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). For instance, a Navajo medicine man or woman will perform his or her ceremony in a certain way. The manner in which a ceremony is conducted is left to the medicine man or woman performing the ceremony, guided by the holy people. It is not acceptable for one medicine person to tell another how to conduct a ceremony. Any infringement destroys the healing powers of the ceremony. Thus, the prohibition on such intrusions is absolute. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). When a medicine man or woman oversteps his or her authority and does not perform a ceremony properly, that ceremony is ruined irreparably. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). d) Branches may not interfere with another branch s core functions 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 (Nav. Sup. Ct. 2004). Separation of powers ensures that the Judiciary has the authority to exercise necessary and essential functions unencumbered by outside interference, just as the Legislative and Executive Branches have certain essential functions unencumbered by judicial interference. Eriacho v. Raman Dist. Ct., 8 Nav. R. 598 (Nav. Sup. Ct. 2004). There are certain circumstances in which the prohibition against infringement by one branch into the workings of another is absolute. No branch of the Navajo Nation government can perform or infringe on the essential functions of another branch. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). e) Specific applications of separation of powers (1) Core functions of the Judicial Branch Under the doctrine of separation of powers, the Council may not give discretion to the Attorney General that interferes with the functions of the Court. Eriacho v. Raman Dist. Ct., 8 Nav. R. 598 (Nav. Sup. Ct. 2004).

17 The Council absolutely may not act as an appellate body over the judgments of the courts, nor can it pass legislation for the specific purpose of altering a party s court-granted right. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). One of the basic tenets which derives from the doctrine of separation of powers is judicial independence. The judiciary's function is to render judgments and to enforce its judgments and orders. No other branch or office of the government may legally interfere with the judiciary's duty to render judgments and enforce judgments in any way. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). Likewise, no other branch, office, or entity of the government may influence a court with the intent of altering its decision. Outcomes of cases that are before the courts must be free of any form of political influence. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). Justice for the Navajo people means the courts decisions must be free of influence or pressure from the Executive and Legislative Branches. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). The activities of other branches of government are illegal only when they interfere with a court s duty to hear and decide cases independently. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). Statute which gives the Board of Election Supervisors power to interpret Navajo election law expressly states that such interpretation must be consistent with Navajo law. The Supreme Court may review whether the interpretation was consistent with Navajo law. This reading of the plain words of the statute avoids the difficulty of finding that there has been an unlawful delegation of power to a legislative entity, violating the principle of separation of powers. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991). When the Council reenacted the Board of Election Supervisors powers, it did so in a law which firmly established the separation of governmental powers. If the Board had the final power to interpret a part of the law of the Navajo Nation, that would infringe upon the plenary power of the courts to do so. Pioche v. v. Nav. Bd. of Elec. Supervisors, 6 Nav. R. 360 (Nav. Sup. Ct. 1991). The executive may not impose personnel policies on the judiciary, because that would interfere with the independence of the judiciary. Gudac v. Marianito, 1 Nav. R. 385 (Nav. Ct. App. 1978). (2) Core functions of the Legislative Branch The doctrine of separation of powers in our Navajo form of government prevents this Court from setting rules that directly contradict a clear mandate of the Council. Fort Defiance Housing Corp. v. Allen, 8 Nav. R. 492 (Nav. Sup. Ct. 2004). The judiciary absolutely may not infringe upon the Council's essential function of enacting legislation. Our courts cannot make statutory law. They are limited to interpreting those laws as passed by the Council. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). (3) Core functions of the Executive Branch The Supreme Court cannot apply the court system's procedural rules to proceedings before an administrative agency because that would violate the doctrine of separation of powers. Staff Relief v. Polacca, 8 Nav. R. 49 (Nav. Sup. Ct. 2000). An administrative agency cannot certify a question to this Court because that would violate separation of powers principles as well as their own powers. In re Nav. Bd. of Elec. Supervisors, 6 Nav. R. 302 (Nav. Sup. Ct. 1990). Note: this holding is presented in strikeout format because it

18 was overruled in Matter of Two Initiative Petitions, No. SC-CV-41-08, slip op. (Nav. Sup. Ct. July 18, 2008). (4) Chapters When enacting the Local Governance Act, the Council clearly intended that the Navajo Nation's policy of separation of powers and checks and balance be implemented at the local government level. Matter of Termination of Yazzie, Nos. SC-CV and SC-CV-42-05, slip op. (Nav. Sup. Ct. June 14, 2007). 6. Checks and balances Checks and balances are equally important in the operations of government. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). Checks and balances promote accountability within each branch by preventing abuses of discretion and power. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). While the three branches remain separate, they exercise certain review functions over one another. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). These checks and balances are evident throughout the Title II Amendments. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). For instance, oversight committees (legislative entities) monitor, coordinate and oversee the activities of the non-legislative branches. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). The Budget and Finance Committee (legislative entity) reviews and recommends to the Council the proposed budgets for all branches (including the Judicial Branch) and entities of the Navajo Nation. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). All proposed resolutions of the Councilor its committees (including the Judiciary Committee) must follow a process by which they are reviewed and signed by representatives of at least two of the branches. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). Checks and balances are as fundamental to the Navajo Nation government as is the doctrine of separation of powers. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). B. Operation of the Executive Branch 1. Generally The legislative and executive departments have their functions and their exclusive powers, including the purse and the sword. Tuba City Judicial Dist. v. Sloan, 8 Nav. R. 159 (Nav. Sup. Ct. 2001). 2. Operation of the Attorney General If the Attorney General determines that he/she is disqualified from providing legal representation or legal services on behalf of any entity of the Navajo Nation government in relation to any matter, the Attorney General shall give written notification to the entity affected. If the entity has received such notification from the Attorney General, the entity is authorized to make expenditures, subject to available appropriations, to employ attorneys to provide the representation services. Eriacho v. Raman Dist. Ct., 8 Nav. R. 598 (Nav. Sup. Ct. 2004).