Farmington — Navajo Nation Council delegates accused of crimes cannot be removed from office, according to an opinion from the deputy attorney general of the tribe's Department of Justice.
The memorandum was issued Wednesday by Deputy Attorney General Dana Bobroff and addressed to Shiprock Chapter president Duane "Chili" Yazzie and Tiis Tsoh Sikaad Chapter president Lester Begay.
Both chapters submitted resolutions requesting the opinion of Attorney General Harrison Tsosie about whether delegates who are formally charged with crimes should remain active on the council. The chapters submitted the resolutions about a month after the council's Speaker Johnny Naize was charged with conspiracy and bribery for allegedly misusing discretionary funds. Neither resolution specifically names Naize.
Bobroff submitted copies of the memorandum to council delegates on Wednesday during the winter session in Window Rock, Ariz., after it was requested by Delegate Lorenzo Curley.
During the council session, Bobroff explained she issued the opinion rather than Tsosie because he recused himself from matters pertaining to the investigation being completed by the tribe's special prosecutor.
Tsosie was among those named in the July 2011 civil complaint that then special prosecutor Alan Balaran filed in Window Rock District Court. The current special prosecutors, the law firm of Rothstein, Donatelli, Hughes, Dahlstrom and Schoenburg of Tempe, Ariz., are continuing to file charges against current and former delegates.
The opinion is divided into two sections. The short answer is that a delegate charged with a crime against the Navajo Nation is "not automatically removed" from their delegate seat. Bobroff wrote there has to be a distinction between being charged with a crime and being convicted.
"While there are delegates currently sitting on the Navajo Nation Council who have been charged with crimes against the nation, none of the sitting delegates have been convicted of such crimes," Bobroff wrote.
In her analysis, she explained there are no statutory provisions within the tribal code mandating the automatic removal of a delegate charged with, but not convicted of, a crime.
Although there are no statutory laws or court opinions mandating a delegate's removal from office because of a criminal charge, tribal law provides the council with "the discretion to place a delegate on administrative leave when there are reasonable grounds to believe a delegate has seriously breached their fiduciary duties to the Navajo people."
Under the Navajo Nation Election Code, registered voters can recall and remove a delegate or any elected official on reasonable grounds. The procedural requirements state 60 percent of the registered voters who voted in the last election must file a petition seeking the removal.
"In the case of a council delegate, this appears to mean registered voters from the chapters who elected the delegate in the first place," Bobroff wrote.
She also wrote there is nothing in the election code "to prohibit voters from circulating a petition wherein the grounds for recall are that their council delegate was charged with, but not convicted of, a crime against the nation."
The council may also remove a delegate for just cause by a two-thirds majority vote.
In an interview on Friday, Yazzie said he received the memorandum by email on Wednesday and sent his reaction in a letter to delegates and Legislative Branch officials.
"My follow up letter is my recommendation based on that opinion and the chapter's position," he said. "It is now up to the council as to what it does."
In Yazzie's letter, he wrote the attorney general "misinterpreted" and "misconstrued" the question asked by Shiprock Chapter by incorrectly assuming the chapter membership meant "immediate removal."
He called on the 12 delegates who voted to remove Speaker Naize to restore the council's integrity by placing all delegates who are accused of crimes on administrative leave without pay.
"It does not matter how many charges they have, as even just one charge is a serious breach of fiduciary trust," Yazzie wrote.
Begay said he was not surprised by the opinion and its focus on how a delegate is "innocent until proven guilty."
He added if the charges were filed against either a chapter official or a tribal employee, those people would have automatically been put on administrative leave. But, he said, the standard is different when it comes to delegates.
"From the Navajo people, it doesn't make sense," Begay said.
Both chapter leaders said they plan to share Bobroff's opinion with their chapter membership.Noel Lyn Smith covers the Navajo Nation for The Daily Times. She can be reached at 505-564-4636 and firstname.lastname@example.org. Follow her on Twitter @nsmithdt on Twitter.