Editor's note: On Nov. 12, the Hopi Tribal Council chose to enforce Tribal Resolution H-075-2008 that effectively suspended Hopi Appellate court justices Justin Richland and Sekaquaptewa, and also called for Justice Fred Lomayesva to be put on paid administrative leave.
The recent Hopi Tribal Council action (Resolution H-075-2008) has freed me from my judicial duties and now makes it possible for me to speak openly about what I see as the core issues facing our government and villages today.
The political roller coaster of the past two years sheds significant light on the fact that government by resolution is bad government and that the time has come for targeted constitutional reform. Think about it this way, the villages and the Hopi people have re-adopted the Hopi Constitution three times since 1936 (in 1969, 1980, and 1993). The Tribal Council over the years has passed numerous ordinances governing things like elections (Ordinance 34) and court duties and powers (Ordinance 21).
However, within the last two years, each time the political tides have shifted, and on occasions when a quorum has been formed, a particular group of councilmen has attempted to overwrite - without formally amending - well-considered constitutional provisions and ordinances relied upon by generations of Hopi people and prior councils.
In the case of Mr. Nuvamsa's election, there are procedures for challenging an election that Resolution H-036-2007 sought to preempt. The Council's subsequent suspension resolutions naming Mr. Nuvamsa (H-074-2008) and Justice Lomayesva (H-075-2008), similarly seek to preempt Article V of the Hopi Constitution that sets out the only means by which the legislative branch may unseat members of the executive and judicial branches.
Some of our councilmen argue that we do not have a constitutional separation of powers requiring the legislature to respect or follow a court's finding that they have not followed [themselves] (as set out in the constitution or in earlier ordinances and resolutions). I must point out that this is despite the fact that Hopi Councils in 1981 and 1996 reiterated their commitment to a separation of powers in Resolutions H-3-81 and H-14-96. But is this approach working? Are they being good trustees for us given the awesome powers that a one-branch government vests in its legislators?
Remember that our original constitution was drafted by BIA employees who saw themselves as the final check on tribal government corruption - a duty the BIA is no longer eager to involve themselves in. Today they leave us to our own devices as a matter of respecting our right to self-govern. So let's get to self-governing then. We need constitutional reform in three key areas: (1) creation of a separate but equal judicial branch to watch that our legislature complies with our Constitution and our ordinances; (2) the setting of requirements for what it takes to legitimately enact and amend an ordinance in a transparent way, and describing what makes an ordinance different from a mere resolution; and (3) the memorializing of the right of the villages to select and remove their representatives to Tribal Council pursuant to their local ways, standards, and rules.
Under our constitutional law the steps for constitutional reform are: (1) Any Tribal Council member may propose the amendment at any meeting of the Council; (2) At a second meeting of the Council, the Council may vote to approve the amendment by a majority vote; (3) If the Council votes for the amendment then it is forwarded to the U.S. Secretary of the Interior with a request to call a referendum (to put it to the Hopi membership for a vote); (4) The Secretary then calls for a vote; and (5) the amendment will be adopted if a majority of adult Hopi members vote (with at least 30 percent of those entitled to vote voting).
The original drafters made our Constitution very difficult to amend but it can be done if the Hopi public is committed to the task and is ready to sit on their representatives to get it done. Then we need to mobilize the voters. Remember tribal government is neither Hopi/Tewa in origin nor reflective of the full American model with checks and balances. We were sold a defective model that at its worst encourages unchecked power grabs and at its best unaccountable day-to-day decision-making. Only we can fix our government. It is far better that we do it with courage now than to leave this mess with cowardice to our children.
Hopi Appellate Court Justice