Navajo lawmaker’s theft charge can be refiled

By Felicia Fonseca
Flagstaff, Arizona (AP) January 2011

A judge has dismissed a charge against one of dozens of Navajo Nation lawmakers accused of stealing cash intended for needy tribal members, but she says a prosecutor can amend the complaint and refile it.

Window Rock District Judge Carol Perry initially dropped a theft charge against Young Jeff Tom because the prosecutor missed a Dec. 27 hearing. In a written decision this week that expanded on the dismissal, Perry said the criminal complaint was defective because dollar figures didn’t match up. She dropped the charge without prejudice, meaning the prosecutor can refile it.

It was unknown last week if the special prosecutor, Alan Balaran, would do so. Balaran, who filed the original complaint, did not return e-mail or phone messages left by The Associated Press.

Tom was among dozens of lawmakers charged with offenses including, theft, fraud and conspiracy in the use of tribal funds. Balaran has alleged that 77 of the council’s 88 lawmakers and the incoming tribal president took a combined $1.9 million to benefit themselves and their families.

Only 11 of the 77 will remain when a new, smaller council is sworn in. The new council will have a total of 24 members.

Tom said he would reserve comment until after he read Perry’s written order, and his attorney declined to comment.

His attorney filed a motion in November to dismiss the case, but Perry rejected most of the arguments that Balaran had said were frivolous. Among them was that the complaint filed by Balaran didn’t comply with Navajo law because it didn’t list Tom’s address and was too vague to prepare a defense.

Court records show Tom is accused of stealing $33,638, although the judge noted some inconsistencies in Balaran’s filings. She said Balaran can amend the complaint so the figures listed in the complaint and an exhibit match. She also asked for a more explicit jurisdictional statement and a description of the Navajo law that lawmakers are accused of breaking.

Balaran sought a continuance of the Dec. 27 hearing because he would be on holiday travel, but Perry said the court wasn’t aware he wouldn’t be able to attend until after the hearing.

Motions to dismiss are pending in some of the other lawmakers’ cases.

David Jordan, who is representing about two dozen of the lawmakers, said Friday that Balaran had asked the court to postpone some of the cases until Jan. 15 to pursue settlement negotiations. But the court hasn’t ruled on it, and Balaran hasn’t brought up the issue since, he said.

Jordan opposes the request.

“We’re trying to move these cases to trial,” he said. “They (lawmakers) want to be vindicated.”

Navajo lawmakers asked the tribe’s attorney general more than a year ago to hire a special prosecutor to look into the tribal president’s contractual relationship with two companies that had operated on the reservation.

The attorney general obliged, but then surprised them by expanding the probe to include the council’s use of discretionary funds intended for Navajos in need. The investigation also includes the tribal ranch program and discretionary funds for the executive branch.

The legislative branch received $33 million in discretionary funding during fiscal years 2005-2009, the majority of which came as supplemental budget appropriations.

The Navajo Nation Supreme Court criticized the spending in a ruling this week and banned any further use of discretionary funds until guidelines are established to regulate their use.