Tsosie appeals to high court

By Sararesa Begay
Pilot-Independent

WINDOW ROCK — New Mexico State Sen. Leonard Tsosie appealed Wednesday to the Navajo Nation Supreme Court a decision made by a Navajo Nation Office of Hearings and Appeals Officer that he couldn't serve as a state senator and as a council delegate at the same time.

Marcella King, OHA Officer, released her decision Wednesday morning in the election grievance filed by delegate LaVern Wagner (Whitehorse Lake/Pueblo Pintado/Torreon) who wasn't returned to office by voters.

"I was disappointed with her decision, but not surprised," Tsosie said. "This is the same hearing officer who said on Dec. 1 that she will rule against me if I insisted on hearing the case that day, and who threatened to prolong the case to February 2007 if I disqualify her."

Tsosie added that "this is the same hearing officer who did not understand the modesty of a tribal elder leader when he stated that he prefers not to be called 'an expert' and, on that basis, refused him to testify about the local customs or practices of my people at Whitehorse Lake/Pueblo Pintado and Torreon Chapters."

"The unfairness of the proceeding she conducted resulted in an unfair decision," Tsosie said. "It is not surprising."

"Now, we turn our attention to the Navajo Nation Supreme Court, a much fairer tribunal," Tsosie said. "I anticipated this type of a decision from the hearing officer and pre-drafted a Notice of Appeal. We will now make our case to convince the Supreme Court that the Navajo people have a right to freely choose their leaders as prescribed for by Din Fundamental Laws."

Wagner said, "The Navajo Nation did its ruling today, and my position is in protecting and preserving the Navajo people's interest and its government."

She charged that Tsosie "attempts to weaken the Navajo Nation sovereignty by breaking the laws, Title 2 and Title 11."

With Tsosie scheduled to take his seat on Jan. 9, a conflict of tribal codes against fundamental law has become a profound issue for him.

Title 1 and 11 of the Navajo tribal code prohibits a council delegate from being employed or holding an elected office in a state or federal government.

Wagner, the incumbent who lost her seat to Tsosie, is raising the issue under Title 11, which says council delegates cannot hold seats in other governmental bodies. Tsosie points to Title 1 fundamental law which says the Navajo people have a right to choose their own leaders.

A delegate's serving in another governmental body is not without precedence. Fort Defiance Delegate Tom White Jr. is also an Apache County commissioner. Ironically, White himself tried to bring Title 1 and Title 11 into harmony earlier this year, by clarifying that delegates cannot hold positions in outside governments. The legislation died.

"These laws protect the Navajo Nation and its government," Wagner said. "We are very fortunate to have our government when our sovereignty can be severely weakened by actions such as Senator Tsosie. Clearly, his actions are to serve two governments. That is prohibited."

Wagner continued to support the Navajo Nation sovereignty, and said "we need to have that in place for our children."

Then Wagner accused Tsosie of "manipulating sample ballots which is against the law" on Election Day.

On the sample ballot issue, Tsosie said, "The hearing officer was not a criminal judge, but used a warning label of possible criminal prosecution as justification to invalidate more than 750 Navajo votes."

"How an unelected hearing officer who is supposed to be an executive branch administrative employee can do this is beyond me," Tsosie added. "Even the Navajo Board of Election Supervisors' rules that she cites does not call for such a punishment."

Tsosie said that "no witness testified that I marked on or altered sample ballots."

"I scanned in a minor portion of the ballot which showed the photos for the purpose of educating Navajo voters," Tsosie explained. "To this hearing officer, that is enough to invalidate a whole election a dangerous precedent."

Wagner said she believes Tsosie is exhausting himself with this, and is "overlooking his constituents" as a state senator, and "spending too much time in Window Rock."

"He has a job in Santa Fe," Wagner said. "He has a duty and responsibility in Santa Fe. He should be representing Navajos and non-Navajos."

"I have faith that the Navajo Nation Supreme Court will see the errs of the Hearing Officer and, eventually, rule for the rights of the Navajo people to freely choose their leaders," Tsosie said.

Tsosie is the only council delegate-elect not to be certified by the Navajo Board of Election Supervisors. Council delegates-elect are scheduled to take the oath of office on Jan. 9, 2007, but Tsosie has to wait. Navajo Nation council will go into session on Jan. 22, 2007.