Panel argues Wagner, Tsosie case
Ethics and Rules members debate possibilities for chapter

By John Christian Hopkins
Diné Bureau

WINDOW ROCK — All of the winners of the 2007 tribal elections have been certified except one.

Edison Wauneka, director of the Navajo Election Administration, told the Ethics & Rules Committee Friday the race for the delegate seat to represent Pueblo Pintado, Torreon and Whitehorse Lake chapters was still being reviewed by the Office of Hearing and Appeals.

Ousted incumbent LaVern Wagner filed an OHA complaint as the apparent victor, New Mexico State Sen. Leonard Tsosie, arguing that under Title 11 of the Nation's election code a delegate is barred from also holding a federal or state office.

Tsosie points to Title 2 fundamental law that says the people have the right to select their own leaders. It was this law that the Navajo Supreme Court cited when it ruled that the Nation's residency requirements for presidential candidates was invalid.

Twenty-five of the 26 new council delegates are set to be sworn into office Jan. 9 but Tsosie would not be eligible to take the oath as long as he remains a state senator, Wauneka said.

"Why wasn't Tsosie told that he cannot hold two offices? Why didn't your office catch that?" asked E & R Vice Chairman Curran Hannon.

The code only says that a person cannot serve in both offices at the same time, but doesn't prevent a person from running for office, Wauneka explained. If Tsosie had resigned his senate seat after winning the tribal election, this discussion would not be happening, he added.

Tsosie is an intelligent man an attorney and he must have known the law, suggested committee member Joe M. Lee. "He wants to go beyond what he read, he doesn't like what he read," Lee said.

The OHA process will end in early January, but whoever loses the ruling Tsosie or Wagner is more than likely going to appeal to the Nation's supreme court, Wauneka said.

The court process could take months, said committee member Duane Tsinigine. While this is being played out, what happens to the delegate seat in question? Tsinigine asked.

If Tsosie wins the case and Wagner does not appeal the senator will be able to take the oath Jan. 9, Wauneka said. The same would be true if Tsosie resigned from the senate before then, he added. But if Tsosie loses and appeals the decision the speaker would appoint an interim delegate to serve until the matter is cleared up, Wauneka explained.

If Tsosie lost the OHA ruling and did not appeal, the seat would be declared vacant and a special election would be called, Wauneka said.

"This all falls back on the election office," Hannon insisted.

"If it goes to the Supreme Court and Tsosie wins, what happens to our election laws?" asked committee member Harry Williams.

"I do not want to speculate on that," Wauneka said.

Candidates could ignore all election laws and point to the fundamental law every time they are challenged, Lee said. He said that Navajos from New York City would be able to run for Navajo Nation president.

"Let's say down the road Mr. Redhouse has a son who's a colored man," Hannon said. "He could run for president under fundamental law."

Using the fundamental law argument, it is possible that a Navajo living off the reservation even in New York City could run for president, Wauneka acknowledged. However, the NBOES followed the letter of the law, he added. Tsosie had every right to run for the office, Wauneka said.

"If Tsosie wins all election statutes are thrown out," said Chairman LoRenzo C. Bates. "People can use whatever argument fits their need."

Part of the delegate's oath is to swear loyalty to the Nation, Bates said. But if he's wearing two hats would Tsosie be loyal to the tribe or the state if a conflict should arise, Bates wondered.

If Tsosie is allowed to keep both seats, what happens when the council goes into executive session, Hannon asked.

"Can we ask him to leave?" Hannon said.

The question of how that scenario might play out was put to Speaker Lawrence T. Morgan. However, the speaker declined to comment.

"I have a serious problem with discussing this in the open," Morgan said.

The OHA is scheduled to hear the Tsosie case Dec. 22.

John Christian Hopkins can be reached at hopkins1960@hotmail.com or by calling 505-371-5443.