Hopi Vice Chairman responds to Nuvamsa
August 23, 2007
This letter is in response to Ben H. Nuvamsa's lengthy editorial letter recently printed in the Albuquerque Journal and reprinted in the Hopi Tutuveni on July 19. While I have made every effort to stay above the personal attacks Nuvamsa has leveled against me since filing his lawsuit against me and various other Tribal Council members, the deliberate misinformation coming from Nuvamsa and some of his supporters demands a response.
Nuvamsa's letter wrongfully claims that his lawsuit is not a challenge to the Tribe or the Council's sovereignty; however, a close examination of the facts proves nothing could be further from the truth. Nuvamsa filed his complaint in April of this year, challenging the Council's authority to adopt Resolution H-036-2007. As most Hopis are aware, by adopting this Resolution the Council nullified the general election and thereby nullified Nuvamsa's attempt to wrongfully assume the position of Chairman of the Tribal Council. While Nuvamsa would gladly have the public believe that the Council neither had authority nor cause for passing that Resolution, this is simply not the case. The Council nullified the election in order to uphold the Hopi Constitution. The Hopi Constitution requires that candidates for Chairman have maintained residency on the Hopi reservation for at least two years preceding the announcement of candidacy in the election. Nuvamsa failed to satisfy this mandatory requirement and was in fact an off-reservation resident. The Council acted to nullify the election because of this failure and because the Council has a duty to uphold the Hopi Constitution and to protect the Tribe and its people from those who are not qualified to hold the office of Chairman. The facts as taken from the public records of the tribe underscore Nuvamsa's failure to meet the residency requirement of the Hopi Constitution.
Nuvamsa submitted his documents for candidacy to the Election Board on Jan. 5. He listed his mailing address as P.O. Box 1063, Hotevilla, Arizona. It was later learned that this address is actually registered to Sylvia Dalton, Ben's mother-in-law. The Board scheduled Nuvamsa's interview to discuss his qualifications for Jan. 10. When he showed up for his interview, he provided a copy of his Arizona driver's license, issued on Jan. 8-a mere two days before the interview. In other words, Nuvamsa went and had his driver's license reissued between Jan. 5 when he submitted his petition for candidacy and his Jan. 10 interview. Why did he do this? Because up until he changed the address affiliated with his license, which is supposed to indicate one's permanent residence, Nuvamsa's driver's license bore an address for his home in Pinetop. He quickly and conveniently changed the address on his license to a post office box in Hotevilla. Disqualifying irregularities with Nuvamsa's eligibility did not end there. When he interviewed with the Election Board, he responded to a question from Anissa Mase, the Board's Chairwoman, asking, "Where do you live now?" by saying, "I have a home in Pinetop." The Election Board's official transcript from the hearing thus clearly discloses Nuvamsa's own admission of off-reservation residency. Additionally, at least as late as Nov. 30, 2006, Nuvamsa's residence was listed as Pinetop according to tribal records.
I mention all of this to point out the real issue here-namely, Nuvamsa's complete and utter failure to satisfy the requirement embodied in our Hopi Constitution that he live on the Hopi Reservation for the two years immediately preceding the election. That requirement, also set out in Hopi Ordinance 34, the Tribe's Election Ordinance, is not without purpose. The residency requirement is the Tribe's way of guaranteeing that any person running for the Tribe's highest elected office is familiar with the current issues facing the Tribe and is conversant in the Tribe's culture. Nuvamsa apparently did not believe the terms of the Hopi Constitution or the Tribes law as set out in Ordinance 34 important enough to merit his compliance. Apparently Nuvamsa saw no reason to comply with the constitution or its underlying laws. The Hopi people are entitled to have a chairman who is actually eligible to hold the office of chairman, this is their constitutional right and Nuvamsa is trying to violate that right. The Tribal Council is trying to protect the Tribe against a self-proclaimed leader who apparently has no qualms about running for an office for which he is not constitutionally qualified. Nuvamsa has never stated on record that he in fact met the residency requirement-he knows he did not. All he has ever said is that the election Board found that he met the requirement. Nuvamsa has relied on the mistake of the Election Board to justify his current position while refusing to address head on the question of his actual off-reservation residency prior to the election. It is time for Nuvamsa to speak the truth to the Hopi people.
The Election Board should not have certified Nuvamsa's candidacy in the first place, but the council had to allow the process to run its course. Indeed, Council gave the Election Board two opportunities to investigate both council and constituent concerns regarding Nuvamsa's failure to meet the residency requirement. Unfortunately, the Election Board failed to conduct an adequate investigation and to resolve the concerns expressed by the public and by the council. At that point the council was left with no choice but to step in as the final shield and protector against Nuvamsa's violation of the Constitution.
Under the Hopi Constitution, the council has the power to delegate responsibilities to Boards and other entities that it creates, including the Election Board. Article VI, §1(L) of the Constitution allows the council to delegate certain authority to subsidiary bodies, but makes clear that council retains its ultimate authority to ensure such authority is exercised properly and constitutionally. It is this very power of ultimate review that council had to exercise in the case of Nuvamsa's attempt to get around the Constitution's residency requirement. In passing Resolution H-036-2007, the council was acting to uphold the Constitution and protect the rights of the people. Nuvamsa would have people believe that council violated the rights of voters by taking this action, but it is actually his illegal and constitutionally prohibited candidacy that violated the rights of voters by depriving them of a properly qualified candidate. The election was nullified in order to protect the Tribe and the Hopi people from the fraud of a constitutionally unqualified candidate taking office as Chairman. Nuvamsa [was] wrong in submitting his candidacy in the first place and the Election Board [was] wrong in allowing the candidacy to go forward. [As the saying goes,] two wrongs do not make a right.
As many of you know already, the courts have issued temporary restraining orders in this case. According to court rules, a temporary restraining order should be in effect only 15 days, and may be extended only 15 more days. In our case, the TRO has been in effect more than 90 days, in clear and direct violation of the courts' own rules. The terms of the order have placed those of us named in the suit in an impossible, no-win situation. We are directed by the court under threat of jail, on the one hand, to recognize Nuvamsa as Chairman under the TRO, and on the other hand we remain duty bound as council members to enforce the valid law embodied in H-036-2007. Tribal law makes it a criminal offense to fail to comply with a Tribal Council Resolution, pursuant to Ordinance 21 Section 3.3.81. The court has essentially ordered the council members to violate the law that the council itself enacted. The difficulty posed by the two contradictory authorities is real-both council secretary Mary Felter and I were put in jail for allegedly violating the TRO, but the conduct leading the court to jail us was in fact directed by the Hopi Tribal Council. Because of this untenable predicament created by the TRO, the council, as a whole, on the opening day of the June 1 quarterly session agreed not to meet until the court issued a final ruling in this case. Nuvamsa is well aware of that agreement, having been present at the meeting and joining in the agreement himself. Unfortunately Nuvamsa now seeks to reverse the agreement he was a party to and exploit the council's inability to meet for his own political gain.
The people need to know that all council members are going about their work, but just have not been able to meet in session due to the pending Nuvamsa lawsuit. Those of us on Boards and Task Teams are still attending meetings and reports on those activities are being made to the villages by their respective representatives. Other important work is likewise being performed. We have attempted on several occasions to reach a compromise solution with Nuvamsa that would allow the council to meet and conduct its business. We have suggested that Nuvamsa and the council agree to allow a chair pro tem to conduct council meetings, to avoid the dilemma posed by the TRO and H-036-2007's side-by-side existence. This offer has been extended at least twice officially to Nuvamsa and both times he has refused. Nuvamsa is not without blame for the council's inability to meet. He claims on the one hand to have the interest of the Tribe in mind and on the other hand he refuses to come to the middle ground of compromise that would allow the council to convene a meeting and conduct its business. Nuvamsa wants matters resolved his way or no way at all.
Nuvamsa has also indicated, both in his letter to the editors of various papers, and elsewhere, that his lawsuit against council members is neither a suit against all of the council nor one that threatens tribal sovereignty. These are dangerously inaccurate statements. First, one need do nothing more than count the number of times Nuvamsa refers to "council's" action in both his lawsuit or in his letter to the editor, to see that the real target of his legal action is all of the Tribal Council, and not just those members named in his suit. The council should have been named in the suit since it was the council that enacted the Resolution in question, but Nuvamsa knows that the council is protected by sovereign immunity and therefore tried to avoid the issue by just naming a few council members rather than the Tribal Council itself. The council, though, can only act by majority vote of its membership. Resolution H-036-2007 was passed by a majority vote of the council. Thus, any challenge to that Resolution is directed against all of council, not just a few of its members. Moreover, Nuvamsa asks for remedies that only the council can give him. No individual member of council can recognize him, order him reinstated, pay him from Hopi monies or overturn a properly enacted Tribal Council Resolution. On the question of the Tribe's sovereign immunity, Nuvamsa's own attorney, Laura Berglan, stated in open court on the record at the June 22 hearing that "I think this court has an excellent opportunity to really say what the limit on that sovereign immunity is...." This is certainly an admission that Nuvamsa's action is directly against the tribe and the Tribal Council and that he has every intention of impacting the tribe in an adverse fashion if he can get the court to agree with him.
More troubling, though, is Nuvamsa's ongoing assertion that tribal sovereignty and immunity arguments are "best reserved for those situations where a defense is needed against attempts by some outside sovereign to impose unlawful jurisdiction in Indian Country." However, a crack in the armor of tribal sovereignty is a crack no matter how Nuvamsa wishes to characterize it, regardless of where it comes from or what the cause may be. Any true leader of the tribe should vigorously defend the tribe's right to sovereignty, which is indispensable to the tribe's self-determination. Nuvamsa, by stark contrast, seems content to chip away at sovereignty and the right to self-government, in order to serve his own interests, and he does so regardless of the costs to the tribe. It is extremely short-sighted for him to believe that his suit, if successful would not be a precedent used by all sorts of litigants, both inside and outside the tribe, to bring actions against the tribe and the council. If the council can be hauled into court for enacting one resolution, it can be hauled into court for enacting any resolution.
That is why the named council members, the tribal secretary, and I have fought Nuvamsa's case in the courts, though doing so has landed two of us in jail and has come at a great cost for many of us. We believe so strongly that H-036-2007 was passed to protect the tribe, we are willing to stand behind that action and defend the people and council by defending the suit. We will continue to do so until the threat to the tribe's sovereignty has been turned back.
Todd D. Honyaoma
The Hopi Tribe