Category Archives: Trust Fund

10/10/2011 Navajo Times: Court orders protects documents, Balaran ends job: 'going fishing'

10/10/2011 Navajo Times: Court orders protects documents, Balaran ends job: ‘going fishing’ By Bill Donovan, Special to the Times: Alan Balaran, who stepped down as special prosecutor on Friday, stirred up a hornet’s nest with his court filings over concerns for financial documents housed in Administration Building No. 1. It’s an issue that seemingly didn’t want to die even after Window Rock District Court Judge Carol Perry ruled in a hearing on Sept. 26 that no documents could be removed from the building. Last Friday, Perry issued a formal order saying no documents could be taken out of the building or destroyed without the court’s permission.

Tribal attorneys were still saying that Balaran was wasting the court’s time since no one was making plans to destroy any of the documents, despite a president’s office press release issued two weeks before saying that because of the closing of the building suspicions of mold, documents were going to be scanned and then destroyed.

The president’s office issued a press release the day after the Sept. 26 hearing stating that information on the earlier press release was incorrect.

“All documents will be preserved according to Navajo Nation, federal or any other pertinent entities’ record retention policies and procedures and any other applicable law,” the release states.

Tribal officials at the Sept. 26 hearing had stated that because environmental officials were saying that it may be six months or more before the building could be re-opened, some employees wanted to get documents they would need to keep their offices running.

With Perry’s order last Friday, tribal officials will now have to get the court’s permission before any of these documents could be removed from the building.

As for Balaran, he said on Friday that he still feels his efforts to protect the records – some of which are needed in his civil prosecution of former and present tribal officials for misuse of discretionary funds – was justified.

He said he saw videos and has transcripts of meetings in which tribal officials responsible for investigating the possibility of mold in the building talked about the destruction of tribal documents after they were scanned.

He said he felt he had no recourse but to get the court order to make sure that whoever is appointed to replace him has the evidence they need to prosecute the case.

Balaran was still hoping for the court to appoint a special master to oversee the safety of the hundreds of thousands of financial records being stored in the building but Perry has not agreed to this request.

Assistant Attorney General Paul Spruhan, in a memo filed with the court last week, agreed that such a master was not needed and adding that the incident management team overseeing work in the building has the expertise to make sure that all of the documents are protected.

“The team demonstrated at the hearing (on Sept. 26) that it is acting with the utmost integrity and professionalism with no ulterior motive concerning the merits of the current civil case filed by the special prosecutor,” he said.

Despite the fact that the tribe currently has no special prosecutor, the civil case against 77 members of the previous Council, former president Joe Shirley Jr., Controller Mark Grant, former attorney general Louis Denetsosie and current attorney general Harrison Tsosie continues.

It will be up to whoever is appointed the new special prosecutor to decide whether to proceed with the case, change the civil suit back to criminal cases or go in a different direction.

Officials for the attorney general’s office have continued to hold meetings with the special district of the court set up to oversee the operations of the special prosecutor.

Perry noted that officials for the attorney general’s office had indicated that a new special prosecutor may be appointed as early as this week. If that doesn’t happen, she said she wanted a written report submitted to her by Oct. 7 to give a progress report.

As for Balaran, asked what his plans are now that he is no longer special prosecutor, a job he held for 18 months, he said, “I’m going fishing.”

10/3/2011 Gallup Independent: Judge allows month to name special prosecutor

10/3/2011 Judge allows month to name special prosecutor By Kathy Helms, Dine Bureau, Gallup Independent: WINDOW ROCK – Just minutes before Navajo Nation Special Prosecutor Alan Balaran’s contract was set to expire Friday, District Court Judge Carol Perry issued a month-long stay of proceedings to allow time for the appointment of a new special prosecutor and completion of the transition. Perry issued the “sua sponte” order at 4:55 p.m., in consideration of “the imminent departure” of Balaran, whose contract expired at 5 p.m. following the Special Division’s decision not to renew it.

“As of the time this order was issued, no specific arrangements were made by the Division to advise this Court about the individual or entity responsible for the ongoing representation of the Navajo Nation in this case,” the judge wrote. “As such, the Court now finds it necessary in the interest of substantial justice to order a stay of the proceedings in the above-docketed case,” The Navajo Nation v. Alice W. Benally, et. al.

The court granted the stay due to the need to secure the Navajo Nation’s rights of representation, she said. “This case cannot properly move forward without designation of a new Special Prosecutor.”

During a Sept. 26 hearing about alleged destruction of financial documents housed in Administration Building 1 where the presence of black mold was being investigated, Deputy Attorney General Dana Bobroff of the Navajo Nation Department of Justice testified about ongoing efforts to work with the Special Division of Window Rock District Court to have a new special prosecutor appointed within 10 days.

Perry said the court anticipates additional time will be needed for the transition, and upon review, stayed all proceedings from Oct. 3 to Nov. 7. The court will continue to accept pleadings submitted by counsel of the more than 80 defendants named in the civil case but will not act on them until after Nov. 7.

Balaran filed the case against top current and former Navajo Nation leaders at the end of July alleging breach of fiduciary duty, stemming from and initial investigation into Navajo Nation Council delegates’ use of discretionary funds. Defendants’ responses were due by Aug. 29, however, the Office of the Attorney General requested a time extension so outside counsel could determine whether the Nation was responsible for paying their legal fees. Perry denied the extension Sept. 1.

Attorney General Harrison Tsosie was charged in the civil complaint and to avoid a conflict of interest, in an Aug. 1 memorandum, delegated Bobroff “to assume any and all of my duties and responsibilities set out in the Special Prosecutor Act, including hiring, monitoring or terminating the Special Prosecutor.”

A hearing was held Sept. 8 before two of the three Special Division judges, Leroy Bedonie and Irene Black. Bobroff and Henry Howe represented the Office of the Attorney General. Balaran’s contract was not renewed.

“You can’t go after everybody and expect them to subsidize you,” Balaran said afterward.

In the stay issued Friday, the court ordered Bobroff to “ensure the Office of the Special Prosecutor is secured and not disturbed until the new Special Prosecutor is appointed and ready to take custody of the files.”

“Under no circumstances shall others be permitted to remove or disturb the offices without prior motion of this Court,” Perry said.

The judge also ruled Friday that no Navajo Nation financial documents in Administration Building 1 shall be moved, removed or destroyed without permission of the court, and ordered that the building would remain under the control of the Division of Public Safety, with no one allowed to enter, until a new special prosecutor is named.

9/30/2011 Gallup Independent: Delegates OK satellite offices in 'illegal' meeting

9/30/2011 Delegates OK satellite offices in ‘illegal’ meeting By Kathy Helms, Dine Bureau, Gallup Independent: WINDOW ROCK – In their enthusiasm to present a report on proposed bond financing of Navajo Nation capital improvement projects, the Nabiki’yati’ Committee met Thursday despite cautionary words from the Office of Legislative Counsel that they had not followed procedure to hold the meeting. Title 2, Section 183 of the Navajo Nation Code requires that notice of the meeting be posted at Window Rock Navajo Nation offices, published in a daily newspaper and announced on local radio at least one day before the meeting. There was no publication of notice in local newspapers and no posting of the notice on the Navajo Nation Council website as of 6 p.m. Wednesday.

Delegates said they received text messages around 1 p.m. Wednesday from Legislative Branch staff informing there would be a Nabiki’yati meeting at 1 p.m. Thursday. The meeting started fashionably late, as has become habit, with Speaker Johnny Naize calling the meeting to order at 2:35 p.m.

Legislative Counsel Mariana Kahn missed the first 15 minutes of the meeting during which the committee suspended the floor rules to move up an action item added to the agenda by Jonathan Hale. The resolution which had been on table status pertained to establishing satellite offices for delegates. President Shelly vetoed funds for those offices and for staff in his
Sept. 22 line-item veto of the Fiscal Year 2012 Comprehensive Budget.

When asked about a particular amendment to the Hale’s resolution, Kahn instead voiced her concerns about the meeting.
“I received a copy of the agenda and my understanding from reading a copy of the agenda was there were no business items, whether old business or new business for today. Being that an item has been added to the agenda requiring action of this committee, I must put out that the meeting requirements require certain procedures be followed before a meeting be held.

“In this instance I don’t believe that the meeting requirements have been met. Therefore, my advice is that no official business can take place without the meeting requirement in 2 N.N.C. Section 183,” she said, and cited the statute.

Delegate Katherine Benally, who later presented the Resources and Development Committee’s portion of the bond financing effort, told delegates, “Legislative Counsel can go back to sleep now. … We were all notified yesterday, and the agenda, the main topics were reports, there were no action items. Yes, an action item was added today, but that was from a tabled item. So I believe we are in order,” she said, with the exception of a new item added to the agenda by Delegate Walter Phelps.

Speaker Johnny Naize said there was sufficient notice that was given out Wednesday and that they met the 24 hour requirement.

If staff has strong concerns, Resources’ member Leonard Tsosie said, “put it in a memo, or object at the appropriate time.” The appropriate time, he said, is when the committee is adopting the agenda, “not while we’re under way and then just come totally out of left field and object to something.” Tsosie said the agenda was posted to the website Thursday morning.

Naize asked them to get back to the discussion on Hale’s amendment, which eventually passed, and recognized Delegate Edmund Yazzie.

“I want to speak on the main motion on this,” Yazzie said, but told Naize that the late notifications needed to stop. He said the Law and Order Committee was meeting in Shiprock Thursday. “After the meeting I wanted steamed corn and corn stew, but I had to come back over here, driving like a maniac.” He said he thought he passed fellow committee members Duane Tsinigine and Alton Shepherd along the way. “We get notified at the last minute,” he said. “It’s got to stop, Mr. Speaker.”

Benally said, “If you need to blame anybody, blame me. I’ll take responsibility.” She said they wanted to present the bond financing report which members of her committee had been discussing in Albuquerque with Budget and Finance.

“These little procedures are petty stuff. We should be talking about what we’re going to do for the Nation and our people. That’s more important,” she said.

10/5/2011 Associated Press: Navajo slush fund case awaits prosecutor

10/5/2011 Navajo slush fund case awaits prosecutor By Felicia Fonseca The Associated Press: FLAGSTAFF, Ariz. — A civil case alleging that dozens of Navajo officials used tribal money as personal slush funds or failed to regulate the money won’t move forward for at least a month to allow for the appointment of a new prosecutor and to get that person up to speed. Alan Balaran spent more than a year investigating discretionary spending within the tribal government and allegations of illegal and unethical conduct by tribal employees, some of whom have left office. The expiration of his contract Friday means there is no prosecutor in the case, though tribal justice officials said one ideally would be named this week.

Tribal District Court Judge Carol Perry, who is overseeing the case, issued an order late last week putting the case on hold until Nov. 7. She says defense attorneys can submit pleadings but she won’t act on them until after then.

She also ordered the tribe’s Department of Justice to secure the special prosecutor’s office until a new person is appointed and can take control. Financial documents housed in a tribal building believed to be contaminated by mold will remain there until an incident management team comes up with a plan to preserve them that must be presented to Balaran’s replacement and approved by the court, Perry said.

Some of the 85 defendants, which include former and current Navajo lawmakers, attorneys general and the tribe’s controller, have said the civil complaint was a shoddy piece of investigative work. Tribal Council Speaker Johnny Naize, who is among the defendants, questioned Balaran’s motives and believed that the prosecutor was trying to disable the tribal government.

“We can now move forward with better confidence to resolve these vague civil suits and focus on our job of working for the Navajo people,” he said in a statement after a judicial panel decided against renewing Balaran’s contract last month.

Balaran said those charged clearly defrauded the tribe in the management and use of $36 million. The money should have gone to address significant hardships, help elderly Navajos on fixed incomes or to student scholarships, he said.

9/30/2011 Gallup Independent: No k'e for Shelly after veto

9/30/2011 Gallup Independent: No k’e for Shelly after veto By Kathy Helms, Dine Bureau: WINDOW ROCK – When it comes to money, even among the closest of kin, relationships can become strained. Nowhere was that more evident than Thursday’s Nabiki’yati’ Committee when delegates basically threw k’e out the window and hammered Navajo Nation President Ben Shelly at length for slashing their budget. Exercising line-item veto authority, Shelly cut more than $2 million from the Legislative Branch budget for Fiscal Year 2012. He whittled $130,050 from the travel budget for the Resources and Development Committee chaired by Delegate Katherine Benally after she gutted $433,988 from the Executive Branch budget.

The money intended for Executive salary adjustments and consultant fees Benally gave to a private day-care facility and the Navajo Area Agency on Aging – before Shelly’s line-item veto wiped out her good intentions.

“Anyone wanting to fight the elders, they need to go through me first. Anybody wanting to fight the kids, I’ll take them on. Bring it on, Mr. President!” Benally said.

When it was proposed they invite the president to Nabiki’yati’ and try to talk through their differences, she said, “I will not beg him for a penny.” Then, addressing Shelly in absentia, added, “You practiced your prerogative to veto our committee’s travel line-item. Thank you. We just will not meet.”

Council is in the midst of trying to do a bond initiative for capital improvement projects. Benally said Shelly has been invited to her committee numerous times to discuss his plan for prosperity, but has not come.

“Where’s this pitch that he gives to us about prosperity?” Salaries for the president’s staff range from approximately $70,000 to $93,000, she said. “That’s where the prosperity is, just in his office. I don’t want us going over there and meeting with him. He used and abused that veto power. I say our staff needs to challenge that.”

Lorenzo Curley said this year was the worst budget experience of his eight years on the Navajo Nation Council. “There’s too much exercise of patronage in our budget system and I think that’s what we’re talking about here. We know every year that the Executive budget is padded. Some of us talk about trimming those padded monies in Executive Branch,” he said.

“We kind of give the Executive Branch the respect, the k’e, and so we let it go, and we expect the same reciprocal treatment from the president. It didn’t happen. He double-crossed us,” Curley said.

Alton Shepherd reminded delegates, “ ‘The pen is mightier than the sword.’ That’s what the people have given him, and that’s what I, too, have given him as a president” as a result of the line-item veto initiative. “I had to also dread the day when it becomes as painful as using a sword. I think that’s what happened,” he said.

Leonard Tsosie, who represents eight chapters, said it was unfair for the president to have staff assistants and Council not have any. “Because what we were going to work with has been vetoed, maybe we should reexamine the amount of assistants we give him. He’s telling us to make do with nothing, no assistants. Maybe we should limit the number of assistants he has.”

Tsosie said he sent a letter to the president which Shelly said he was going to make public. “I said, ‘So be it. I don’t mind.’ My letter indicated that some of us supported the line-item veto power and we campaigned for it. When we were out there, we didn’t tell the people that it would be used to target political adversaries.”

The recent sequence of events is “like walking on thin ice,” according to Delegate Leonard Pete. He said that when Shelly was a Council delegate he nearly got into a fist fight over an issue that arose on the Council floor. “He was taken out for disorderly conduct. … That kind of a leader, that kind of a person, that kind of a background, I hate to see something started. I hate to see his true colors.”

LoRenzo Bates said later that the president didn’t go back on his word. “They could have had their assistants. But when they went and put in their own personal feelings and agendas and went against the stream, we brought it on ourselves – and my colleagues better realize that.

“If Council chooses to go to war against the president’s office based on his action, and that includes going to court, and the court makes a decision in favor of the president’s office, you have given more authority to the chief justice to make determinations that could give more power to the chief justice to legislate,” Bates said. “If they’re willing to do that, then go for it.”

Walter Phelps told delegates he did not agree with all the sentiments. “I am concerned that we are taking this down the wrong path. I think, in my mind, it’s just a matter of a need to improve areas of communication between Executive and Legislative, and setting down guidelines for future appropriations.”

Speaker Johnny Naize said he was told by the president to bring some more numbers. “I have the numbers available for him. We can negotiate on those numbers.”

He said he would provide a memo to delegates explaining the action they are going to pursue.

9/28/2011 Navajo Times: New special prosecutor to replace Balaran

9/28/2011 Navajo Times: New special prosecutor to replace Balaran By Bill Donovan, Special to the Times: A new special prosecutor for the Navajo Nation is expected to be named within the next 10 days. Dana Bobroff, deputy attorney general for the Navajo Nation’s Department of Justice, told Window Rock District Court Judge Carol Perry on Monday that the Special Division of Window Rock District Court overseeing the special prosecutor’s assignments was discussing the selection of someone to replace Alan Balaran.

Balaran was hired about 18 months ago by DOJ after members of the Navajo Nation Council decided that a special prosecutor was needed to investigate then President Joe Shirley Jr. because of alleged misconduct in two failed business deals that cost the tribe millions.

Then Attorney General Louis Denetsosie later asked the court to extend the scope of Balaran’s authority to include investigation into alleged misuse of tribal discretionary funds by Council members. Balaran would later file criminal cases against 77 of the 88 members then serving.

Most of the cases were later dropped in favor of civil suits against the same people, plus additional officials including Denetsosie, Shirley, and the tribe’s current attorney general, Harrison Tsosie, and the controller, Mark Grant.

Bobroff, who works for Tsosie, said she met with Special Division officials Monday morning but did not go into detail about what was discussed or whether the court will look in-house for the next special prosecutor or bring someone in from outside the tribe, as with Balaran.

Balaran’s last day is Friday, Sept. 30, but he said he is continuing to work on the cases up to the end, and is making arrangements so that when a new prosecutor is named, that person will be able to pick up where he left off.

9/28/2011 Navajo Times: Mold is suspect in building closure

9/28/2011 Navajo Times: Mold is suspect in building closure By Noel Lyn Smith: Potentially harmful mold inside the tribe’s Administration Building No. 1 has sent approximately 200 tribal employees packing. The building, which houses the Division of Finance, was ordered closed “indefinitely” on Sept. 9 by the Navajo Nation Occupational Safety and Health Administration, which enforces federal and tribal workplace safety laws.

Last Friday about 30 employees stood outside Admin No. 1 with empty boxes, waiting for Incident Management Team members to retrieve documents from the building.

Each department was asked to provide a priority list of essential documents needing retrieval.

A female employee who declined to identify herself said she smelled a “glue like” substance days before the closure. Other employees declined to comment and referred questions to the Incident Management Team.

Before entering the building, retrieval team members dressed in white protective suits and sterile gloves.

A clean room was set up inside and the requested items were brought into that room for decontamination before being removed from the building.

Incident Management Team members returned to the site Monday to continue the remediation process.

NOSHA Director Patrick Sandoval said the investigation and subsequent closure of the building was prompted by complaints from employees.

“It’s the employee’s right to have a safe working environment but it’s the employer’s responsibility to provide that environment,” Sandoval said.

This is the second time the building was closed due to mold in the heating, ventilation and air conditioning system, where mold spores can be sprayed into the air and inhaled by occupants. The first closure was Sept. 1-5.

As crucial documents were being retrieved last week, Dave Nez with the tribe’s Public Health Emergency Preparedness Office explained that an independent Arizona state-certified microbiologist collected samples to analyze and the results will be released to the Incident Management Team.

Nez said the building had water stains on interior walls and some inside paneling showed signs of bacteria or fungus growth. The mold, which can cause severe respiratory problems, thrives in dark, damp conditions.

Based on assessment reports, a large contributor to the problem is the declining condition of the roof and seepage of moisture into the building, according to an Incident Management Team press release.

The exact age of the building is unknown by most officials estimate it is about 30 years old. It has a history of problems, including a waterline break in 2007 that caused significant water damage.

Executive Office Communications Director Laphillda Tso said Tuesday that the test results had not been released. After they are received the Incident Management Team will determine how to remediate the building, she said, adding that an update on the situation was expected Wednesday.

Potential hazard

Mold colonies can start to grow on a damp surface within 24 to 48 hours and reproduce by releasing tiny spores that float through the air until landing in other locations, according to the Centers for Disease Control and Prevention.

Mold will continue to grow until steps are taken to eliminate the source of moisture and kill the existing colony.

Only certain molds are toxigenic, which means they can produce toxins but are not toxic by themselves.

It is the mold’s ability to destroy organic material that makes it a health problem for people.

Typical symptoms reported from mold exposure include respiratory problems, nasal and sinus congestion or coughing, irritation to the eyes, nose, throat or skin, headaches and body pains.

Individual with existing respiratory conditions, infants, children, pregnant women, and the elderly are at higher risks for adverse health effects, according to the U.S. Department of Homeland Security.

There is no way to eliminate mold but it can be kept to a minimum by preventing moisture from collecting inside. Water seepage, whether from an old roof, leaking pipe, or poor drainage, should never be ignored. Fix leaks immediately and dry out the area that got wet.

No routine inspections

“The Navajo Nation is obligated and liable for upkeep and maintenance services to ensure a safe and healthy work environment for its employees,” according to information posted on the Division of General Services Web site.

However, the tribe does not conduct routine inspections on tribal buildings, said Facilities Management Department Manager Marcus Tulley. Tulley’s department provides repairs and maintenance services to 625 tribal-owned facilities across the Navajo Nation.

Tulley said his department does maintenance service on buildings but only when an employee reports a problem or if an order is issued by NOSHA, the Office of Environmental Health, or the Safety and Loss Control Program.

Information about the closure of Administration Building No. 1 is posted at the building’s entrances in addition to copies of the order of closure.

Programs relocated

The programs housed there have been relocated as follows:

* Most of the controller’s office is now operating out of the Dine Education Center auditorium.
* The Credit Services Department is located at the Ethics and Rules conference room.
* Both the Cashier’s Department and some Accounts Payable staff have relocated to Property Management Department in Fort Defiance.
* Most of the Office of Management and Budget is housed in the Department of Information Technology, but OMB’s Contracts and Grants section is located at the Department of Behavioral Health Services conference room in Administration Building No. 2.
* Administration staff for the Division of General Services is in the Department of Information Technology.
* The Insurances Services Department, and Employee Benefits and Workers Compensation programs are located at the Safety Loss Control Program office inside the Navajo Nation Shopping Center.
* Risk Management is located at the Navajo Nation Museum.
* The Design and Engineering Services Program is located at the Division of Community Development conference room in Administration Building No. 2 but the project management staff is located at the Rural Addressing Office at Navajo Nation Shopping Center.
* The Department of Personnel Management is located at the Training Center.

Most departments have retained the same telephone number and people may call them, or the president’s office, for location information, Tso said. The president’s office also instructed KTNN to announce the relocations.

“We asked them to send out information daily because it’s public information and to relieve the stress on the public that comes out to these departments,” she said.

The building may be closed, but shuttering the Division of Finance was never an option, said Herman Shorty, director of the Office of Environmental Health.

“That’s the heartbeat of the Navajo Nation,” he said. “Everything that is key to the Navajo Nation is associated with that building, so you can’t close down operations.”


Balaran gets court order to protect documents

Rehab fund spending report released: Report details how money intended for victims of the Bennett Freeze, in the Navajo-Hopi land dispute, was spent.

New special prosecutor to replace Balaran: Announcement expected within 10 days.

9/28/2011 Navajo Times: Rehab fund spending report released

Rehab fund spending report released Report details how money intended for victims of the Bennett Freeze, in the Navajo-Hopi land dispute, was spent. 9/28/2011 Navajo Times: Rehab fund spending report release By Noel Lyn Smith: WINDOW ROCK: The Navajo Nation’s Department of Justice has finally produced a draft summary of the accounting record for the Navajo Rehabilitation Trust Fund. Nine months after being ordered to do so, DOJ submitted the document during a Sept. 21 hearing for the lawsuit filed by the Forgotten People and 12 other individuals who are suing the Navajo-Hopi Land Commission to learn how money has been spent from the fund, which was established by Congress to benefit residents of the former Bennett Freeze and Hopi Partitioned Land.

As their name suggests, the Forgotten People contend that the assistance their region was promised in the Navajo-Hopi Land Dispute settlement has failed to materialize, and they suspect the money may have been misspent.

Henry Howe, a DOJ attorney representing the Navajo-Hopi Land Commission, submitted an eight-page report that shows trust fund expenditures from 1990 to 2009 that went toward projects on the former Bennett Freeze area, New Lands, Navajo Partitioned Land and Hopi Partitioned Land.

The report also shows amounts Congress appropriated for land purchases and federal appropriation amounts from 1990 to 1995.

“This information provided to plaintiffs demonstrates good faith on behalf of the Navajo-Hopi Land Commission Office,” Howe said, speaking before a courtroom packed with spectators.

When plaintiffs filed their civil complaint in 2010, they asked for a full account of all income, expenses, profits, losses, assets and other financial matters for which the tribe, the Navajo-Hopi Land Commission and the Navajo-Hopi Land Commission Office have responsibility.

Window Rock District Court Judge T.J. Holgate asked Howe why it took months to produce the report after the court issued an order in January.

Howe explained that it took time to locate accounting documents and it was especially difficult for the office to locate the first five years of records.

Sitting with Howe were Navajo-Hopi Land Commission Chair Lorenzo Curley (Houck/Klagetoh/Nahata Dziil/Tsé si’án’/Wide Ruins) and Navajo-Hopi Land Commission Office Director Raymond Maxx and Deputy Director Thomas Benally.

James Zion, attorney for the Forgotten People, asked Holgate for time to examine the record since it was handed to him shortly before the hearing started.

Holgate granted Zion 30 days to review the document and to submit any written responses or questions.

The judge also ordered both parties to continue discussing the issue before the next hearing date in January.

In an impromptu meeting at Veterans Memorial Park after the hearing, Zion told the group that this was just a start.

“Today we had a victory for the Forgotten People,” Zion said to the group of about 30 people.

This document is a start in addressing the issue of when the money was received, how much was received and how it was spent, he said.

Forgotten People member Grace Smith Yellowhammer said it took a long time to obtain this financial record but the group will continue fighting until the issue is completely resolved.

“I want to see these elders win,” she said.

9/24/2011 Gallup Independent: Forum to focus on Navajo-Hopi coal, water issues

9/24/2011 Gallup Independent: Forum to focus on Navajo-Hopi coal, water issues By Kathy Helms, Dine Bureau: WINDOW ROCK – The people of the Navajo Nation and the Hopi Tribe are at a crossroads, according to former Hopi Tribal Chairman Ben Nuvamsa. The dilemma hinges on whether to continue accepting pennies on the dollar for their resources from outside entities, or take the bull by the horns and create “economic sovereignty” for themselves.

A public forum sponsored by the Inter-Tribal COALition to address tribal water, coal, environmental, cultural and economic issues affecting the tribes will be held at 6 p.m. Sept. 30 on the sixth floor of the Native American Community Building, 4520 N. Central Ave., Phoenix.

Presenters include Daniel Higgins, Ph.D., Sean Gnant of the Brewer Law Firm, Milton Bluehouse Sr., and Nuvamsa. Navajo Nation Council delegates, Hopi Tribal Council members, and interested members of both tribes are asked to attend the forum to learn more about their common issues.

“We believe that we are at the crossroads. Many of these entities are after our water and our coal. We kind of stand, so to speak, at the headwaters of all these resources,” Nuvamsa said.

Coal from the tribes is used to generate electricity so the people in southern Arizona, southern California and Nevada will have electricity in their homes. The massive Central Arizona Project depends on power from Navajo Generating Station so the federal government can deliver surface water to tribes and municipalities in southern Arizona, he said.

“The sad part is that these entities that are using these resources to provide these services to the people and generate profits are not paying us at the fair market value for our water and our coal,” while the tribal councils are prematurely agreeing to settlements without properly informing their people, he said.

“For example, the lease reopener that’s before the Hopi Council – there ought to be increased royalties. Instead of one-time bonuses, there ought to be annual bonuses. There ought to be higher scholarships – $85,000 (for Hopi) is nothing.”

In addition, provisions in the proposed Northeastern Arizona Indian Water Rights Settlement could hold Peabody Energy and others harmless for all past, present and future damages to the water quality. “I think these are the kinds of things that people need to know, that our tribal councils are agreeing to these things,” he said, adding that the companies should be held accountable for damages and the federal government should be held accountable for not enforcing the rules.

“Both nations ought to be able to say, ‘OK, we have this precious resource, we’re going to take all bidders,’ and be able to go out and compete for higher prices, not have it handed to Peabody Coal. We ought to be able to make those decisions ourselves. I call that economic sovereignty,” Nuvamsa said.

During last week’s meeting with U.S. Department of the Interior Deputy Assistant Secretary David Hayes on the proposed water rights settlement – which many have linked to the future survival of NGS and the Central Arizona Project – Shiprock Delegate Russell Begaye said a change of policy may be in order in terms of the use of Navajo resources by outside entities such as Las Vegas, Phoenix, Tucson and Los Angeles.

Begaye said Navajo historically has focused on “outsourcing” its minerals and water resources rather than looking inward to see how they can be used to benefit the Navajo people. He proposed that Navajo look at developing local community-based generating plants which produce up to 10 megawatts of electricity.

“The town of Shiprock where I’m the delegate – about 18,000 folks – we can probably use 2 to 3 megawatts to run the whole community, and the rest we could outsource and sell to outside entities or other communities on our land, using a combination of coal, wind and solar.”

Rather than building mega-plants to power up electricity in other places, if a company said, “’We want to come alongside you and develop those resources to light up your communities on the reservation, to give water to homes on your land, and be able to do it in such a way that these communities can start selling these sources to outside entities,’ then we’re really talking about a trust responsibility that builds the Nation first,” Begaye said.

“I think the focus needs to turn from Phoenix to the Navajo Nation, from Los Angeles to the Navajo Nation. That policy change, if it takes place, will resolve a lot of our issues. We are sitting on gold mines, but those gold mines are being used by outside entities.”

Navajos travel to major cities across the West and “dream about the days when we may have those stores and those manufacturing plants,” Begaye said, all the while knowing it is Navajo resources which made those developments possible. “Why not let’s turn that inward? Let’s change the policy of outsourcing, to using those resources to build a nation.” He asked Interior to help Navajo in that endeavor.

After Interior officials left, the work session turned from water to NGS and despite efforts by Duane Tsinigine and Nelson Begaye to keep the session open to the public, Nabiki’yati’ Committee voted to go into executive session.

Adella Begaye of Wheatfields, a member of Dine CARE, said, “This is very sad because there is no accountability, there is no transparency. All these decisions are made without our consent, without our concern. We have been concerned about the water settlement because 36,000 acre feet is not enough for our Nation, and they are now even trying to settle for $400 million – which is nothing.”

She said it was wrong for Navajo and Interior officials to try to push through the settlement by saying there is just a small window of opportunity because Sen. Jon Kyl, R-Ariz., will retire next year and chances for a settlement after that are not likely. “Kyl is for Phoenix to get all the water they can. They’re not for the Navajo Nation.”

Tsinigine left the meeting when it went to executive session. “It’s only fair that all delegates are here to hear these issues, and some of these issues, in general, should be made public. In LeChee, Coppermine and Kaibeto, the majority of the men and women work at Navajo Generating Station and they want to be updated and make sure that the people hear what is at the negotiating table,” he said afterward.

“We’re leaving 75 percent of the Council out of it,” because they were given abrupt notice of the meeting and many had prior commitments, he said. “That’s not fair.”

Marshall Johnson of To Nizhoni Ani, or Beautiful Water Speaks, said the Interior’s visit to discuss their water rights was “like you see on television – a drive-by” that took in the president’s office, Legislative and the Hopi Tribe, but the people, “the original stakeholders,” were left out.

The state of Arizona is the beneficiary of any proposed settlement, he said. During a May hearing in Washington, Shelly and Hopi Tribal Chairman LeRoy Shingoitewa stressed the importance of NGS to the tribes. Johnson, who testified along with Black Mesa Trust Director Vernon Masayesva, opposed extending the lease.

“We told Central Arizona Project it’s about time they get self-sufficient. We’ve been feeding them. They have a $3.5 billion operation in industrial agriculture. We made it available for them. Navajo resources made it possible to push water 3,000 feet elevation uphill. They plant three times a year,” he said. “We have no net benefit from this operation.”


9/27/2011 Gallup Independent: Prosecutor's documents protected – Navajo court keeps restraining order

9/27/2011 Gallup Independent: Prosecutor’s documents protected – Navajo court keeps restraining order  By Kathy Helms, Dine Bureau:  WINDOW ROCK – A temporary restraining order will remain in place to protect Navajo Nation financial documents while Special Prosecutor Alan Balaran and Navajo Department of Justice work on a plan to ensure documents are preserved, District Court Judge Carol Perry ruled Monday.

Perry granted a temporary restraining order Friday at the request of Balaran pending Monday’s hearing on a preliminary injunction and request for the appointment of a special master to protect the “lifeblood” of the Navajo Nation housed within Administration Building One.

Balaran became concerned after seeing a Sept. 15 press release from the Office of the President/Vice President which stated that a team of 50 individuals would be working every day for three days to retrieve documents, which would be scanned and then destroyed because black mold allegedly had been found inside the building.

Balaran pointed out that according to the press release, the decision had been made to destroy documents even though an assessment of the contamination wasn’t expected to be delivered until the following day, and there was no mention of mold – black, blue or otherwise.

Navajo Department of Justice attorney Paul Spruhan said that in filing the ex parte motion, Balaran had acted on incomplete information without bothering to call the Department of Justice or members of the Incident Management Team. He also laid part of the blame on the press release from the president’s office.

“Apparently there was a press release – mind you, not an order, not an executive order, not an administrative order – that suggested falsely, and unfortunately, that this was how this situation was going to be handled; that these documents were going to be taken out and scanned and destroyed,” Spruhan said.

However, early Sept. 15, prior to issuance of the press release, Controller Mark Grant and members of the Incident Management Team appeared before the Budget and Finance Committee where destruction of the documents was discussed. As part of the emergency response action, Grant said, “They’re talking about scanning all the documents in the building and then disposing of them afterward.”

Ron Interpreter, emergency management specialist with the Inter Tribal Council of Arizona Inc., told the committee, “When the documents are purged, there’s a certificate of destruction that is provided by the company so that will help meet some of the federal regulations … to prove and show cause or reasons why those documents were destroyed,” he said. “Mr. Grant is aware of that process and he’s putting a purging policy in place.”

Operations Chief Wilson Laughter told the committee, “Whatever is contaminated will be removed, and they will triple bag it and seal it. That’s how it’s going to work.”

Neither Grant nor Interpreter were asked to testify at Monday’s hearing and team members said they were not instructed to destroy documents.

Deputy Attorney General Dana Bobroff told Judge Perry that the majority of Navajo Nation records are already under a detention order issued by the Court of Federal Claims regarding trust mismanagement litigation against the United States. There also is an executive order issued by President Joe Shirley Jr. in 2007-2008 prohibiting the destruction of documents, she said.

“The concern comes out, I guess, some of your people forgot to update the president’s office. It’s important that this information is provided,” Perry told her.

In Friday’s motion, Balaran said the “intimate involvement” of Shirley’s former chief of staff, Patrick Sandoval, who now heads Navajo Occupational Safety and Health Administration, and the timing of the proposed destruction of documents was of particular concern given allegations against Sandoval pertaining to OnSat, the E-Rate Program and BCDS.

“While it may sound conspiratorial on my part, I get very nervous when I’m leaving in a week and all of the sudden there is a rush to movement on this,” Balaran said.

According to Sandoval, closing the administration building wasn’t just his decision. “It was a joint decision of safety professionals there in Window Rock. There were many meetings and there were many people involved in that decision to go ahead and close it.

“I am not intimately involved in any of the things happening up to this point. What NOSHA did was we closed the building, and we’ll reopen it when it’s safe. I am not spearheading any destruction of documents, which is what was alleged,” he said. “I’m pretty far out of the loop on everything.”

Balaran suggested the court appoint a special master “to ensure that all documents that were obtained by the Navajo Nation are protected in accordance with federal, state and Navajo standards.” He also requested that the restraining order remain in effect until after the new special prosecutor steps in.

While they may disagree on motives, he said, “Nobody from the Office of the Attorney General believes in the idea of destroying records, that I’ve talked to. … In fact, it’s the one point of unison that we have.”

Spruhan said he thought a special master, in theory “is a good idea,” however, it also suggests that the people in charge on the Incident Management Team “simply can’t be trusted. …  I believe it’s unnecessary.”

Because Judge Perry had other hearings to preside over Monday afternoon, she ended the hearing around 1:30 p.m., after allowing attorneys to state their positions and briefly question members of the Incident Management Team, made up of Wilson Laughter, David Nez, Herman Begay, Julius Elwood, Herman Shorty and Wilfred Keeto.

Under questioning by Balaran, they admitted they were not certified in the treatment of mold.

Perry told the attorneys and those in attendance they were free to submit written statements to the court within the next three days. She said she expects to issue an order on Thursday. She also asked DOJ about the progress in appointing a successor to Balaran.

Bobroff said she met with the Special Division Monday morning and it is expected they will announce a new special prosecutor within 10 days. Perry said she was hopeful there will be a new special prosecutor named by 5:01 p.m. Friday, right after Balaran’s contract expires.