In 2009, Navajo voters unhappy with the delegates' service approved two ballot initiatives designed to shift the balance of power again. They not only reduced the number of delegates; they also gave the president a line-item veto over specifics in the annual budget passed by the Council. Yet a majority of delegates refused to reduce the Council's size. They cited a law -- Section 102 of the Navajo Nation Code -- that was enacted by a previous Council session to stabilize the fragile government in the wake of the 1989 crisis. It required that any change in the government's structure had to be approved by a majority of registered voters in each of the 110 chapters. It wasn't surprising that the popular vote fell short of that "supermajority" threshold, because only about half the Navajo Nation's 110,000 registered voters cast ballots during regular elections; the special initiative vote came out 25,206 to 16,166. A good-faith law written to protect the Diné was being used against them.
Council supporters had also filed a lawsuit attempting to force the Navajo Nation to abide by the supermajority law. In May 2010, the Navajo Nation Supreme Court refused to do that. In his ruling, Chief Justice Herb Yazzie noted that the supermajority "is an extraordinary majority impossible to be obtained."
The Supreme Court voided Section 102 and effectively overruled the Council by relying on Navajo Fundamental Law. In traditional Navajo philosophy, Holy Beings handed down foundational doctrines like hózhó that form the basis for Fundamental Law. These doctrines are increasingly being interpreted and incorporated into Navajo jurisprudence. In this case, the court ruled that the Council upset the balance of Navajo society by neutralizing the ability of voters to choose the type of government they wanted. As Chief Justice Yazzie put it: "The People's laws are superior to the statutory laws enacted by the Council."
The Navajo Supreme Court took another gutsy stand in July 2010, ruling that Joe Shirley, who had served two terms as president, could not seek a third consecutive term -- enforcing limits the Council had created after the struggle with MacDonald. The chief justice is nominated by and serves at the pleasure of the president, and his appointment must be confirmed by the Council. In his tussles with the two other branches of government, Yazzie appears to have had the Holy Beings on his side.
Navajo news organizations heralded these events: The 2009 popular vote was "the first time the Navajo People themselves enacted new Navajo Nation law through the initiative process," according to Kayenta Today, a newspaper and blog covering the reservation. And Yazzie's enforcement of the popular vote was the court's "most wide-ranging" decision and "changed the course of Navajo history forever," according to the Navajo Times.
I spoke with Yazzie in his Supreme Court offices, located in a strip mall on Route 264. He has a wide face and gray hair. His black cowboy boots were well broken-in and nicely veined from longtime use. "There is a basic provision in the Navajo Nation Code that says the Council is the governing body of the Navajo Nation. People have noted that that has been used to stifle their rights," he said. "They see ... that the Council, in its own self-interest, reads that to mean that all government power comes from them. And when the court interprets that provision and says, 'No. The power of governance comes from the people,' a lot of members of the Council don't like that."
As the political storm clouds gathered in 2010, then-Navajo Attorney General Louis Denetsosie recruited an Anglo, Alan Balaran, as a special prosecutor. Balaran was supposed to look into two controversies: how the Council had spent millions of dollars, and several badly failed business ventures that originated in President Shirley's office. Balaran, a Washington, D.C., lawyer, had an impressive résumé. In the early 2000s, he was the "special master" in Blackfeet Indian Elouise Cobell's massive class-action lawsuit against the Department of Interior over the inept leasing of millions of acres of Indian Trust lands for drilling, mining and grazing. Balaran dug up evidence of Interior's misdeeds on many reservations, including the Navajos'. (The Interior Department finally settled the case two months ago, agreeing to pay $3.4 billion to individual Natives across the country.)
Balaran speaks to the public through communiqués and indictments, and avoids talking on the record to journalists. But I will risk his wrath to report that he has a strong Brooklyn accent, a penchant for well-placed profanity, and a palpable disdain for rule-breakers. His critics call him messianic. He works long and lonely hours next to the Navajo Council Chamber, in a borrowed barracks-office at the Department of Justice, which pays his salary. His family and private law practice remain in D.C. as he labors to untangle tribal affairs. In October 2010, before the Council was downsized, he filed criminal complaints against 78 of the 88 Navajo Nation delegates.
The charges were various combinations of fraud, forgery, theft, conspiracy and abuse of office. Over the course of five years, according to Balaran, delegates engaged in shameless self-dealing -- even siphoning money from a fund intended to buy eyeglasses for poor Navajos, to fill the coffers of their families and friends.
Council Delegate David Tom represents the chapters of Red Valley Tse'alanaozt'i'i', Sheepsprings, Beclabito, Gadiiahi/To'Koi and Toadlena/Two Grey Hills where, legend has it, Spider Woman first taught Navajos to weave their exquisite rugs. He was charged with diverting $279,175 to himself and his extended family, the largest haul of any delegate. In his photo on the Council website, he wears a tuxedo rather than the typical delegate's uniform (a basic suit with a handcrafted turquoise bolo tie and necklace). He did not return High Country News' calls and emails asking for comment.
"The directness with which the Delegates and their staff stole millions of dollars earmarked specifically for the poor was notable not only for its brazenness but for its callous disregard of the needs of their indigent constituents," Balaran stated.