Navajo Nation’s high court unraveling

By Felicia Fonseca
Flagstaff, Arizona (AP) October 2010

The most recent three-panel Navajo Nation Supreme Court is unraveling with the retirement of one justice and a vote against permanently seating another.

The Tribal Council’s Judiciary Committee held performance evaluations this week for associate justices Louise Grant and Eleanor Shirley. At stake was their permanent appointment to the high court that is considered the flagship of tribal courts. Had Grant not retired last week, she would be in a similar situation as Shirley. The committee determined that both women’s work as probationary justices was unsatisfactory, though some members said testimony didn’t support the finding.

The committee now must pass a resolution to officially remove Shirley from the bench, and the tribal president is bound to sign off on whatever decision the committee makes.

Committee Chairman Kee Allen Begay said Shirley relied too much on Chief Justice Herb Yazzie and faulted her for a lack of dissenting opinions. He also said she hadn’t shown any advancement in training since she was selected to serve on the high court.

Begay said that despite positive remarks about the women, the committee did not have updated written evaluations from Yazzie to show their work was sufficient.

“The bottom line is the committee is following procedures of what is in the (tribal) code and policy,” he said last week.

Yazzie told the committee that the court rarely issues dissenting opinions. Instead, justices strive to reach a consensus on cases. He had recommended that Shirley be seated permanently and accepted Grant’s resignation.

All Navajo judges and justices are appointed to a two-year probationary period, after which time the Judiciary Committee either recommends permanent status or a release from duties.

Leonard Tsosie alleged his fellow committee members were retaliating against the high court justices for a string of decisions that sided against the Tribal Council. Those decisions stemmed from the tribal president’s ultimately successful push to reduce the council from 88 members to 24.

“The Navajo people will interpret it for what it is,” Tsosie said. “I think the reverse will happen, that the people will rally behind the Supreme Court now that they’re being subjected to mistreatment.”

In a case last year about council reduction, the justices admonished an attorney for the legislative branch for suggesting that Grant and Shirley weren’t competent to sit on the case because of their probationary status.

The justices said they wouldn’t bow to political pressure and took the statements to imply that Grant and Shirley wouldn’t be seated permanently if the court issued a ruling in favor of cutting the council.

Begay denied the council was on “the war path” of retaliation.

Lloyd Lee, an assistant professor of Native American Studies at the University of New Mexico, said much of the council’s actions in recent years have been in reaction to the bantering between the legislative and executive branches.

“They may say publicly that’s not what they’re doing, that they’re doing their jobs, these types of reviews have to take place,” he said. “They’re right in that sense, but I think their timing is way bad.”

Yazzie can select other judges to fill in on cases in the absence of associate judges.

The chief justice was appointed to the Supreme Court in 2005 and given a lifetime term in 2007, which could end prematurely if voters approve a referendum on the Nov. 2 to elect judges on the reservation.

The referendum’s passage would force all sitting judges and justices to step down in 2013.