Duties of a Government Lawyer

This page includes excerpts from an opinion, and a research note and comment on the indigenous Public Trust.

The landmark Navajo Nation Supreme Court case, In re Seanez, No. SC-CV-58-10 (Nav. Sup. Ct. Nov. 24, 2010), addresses the critical boundary between a government attorney’s duty to their client versus their overarching ethical obligation to the Diné People whom they serve.

As Legislative Counsel, Mr. Seanez had issued official legal memoranda advising the Navajo Nation Council that the Council could defy a settled Supreme Court decision. The Court ruled that while an attorney may zealously advise a client, actively counseling a governmental branch to override, ignore, or subvert binding judicial rulings constitutes an impermissible interference with the separation of powers and the rule of law. Referring to Federal Bar Association Ethics Opinion 73-1 (1973) which mandates the “public trust” model for government lawyers, the Court emphasized that Navajo Nation government lawyers serve the People and have a duty to the public trust. In this case, there was a failure of this duty, amounting to gross misconduct.

Positive Dew or Corn Pollen. The Court initially ordered disbarment, but converted its ruling to temporary suspension since “permanent disbarment serves no healing purposes.” The Court stated it “will do what it can in an effort to turn [inharmonious words] into positive dew or corn pollen” and “applying the principle of baa hojoo bá’í yee’ for Mr. Seanez’s family and unilaterally playing what role we can in intra-governmental healing.” However, following subsequent reports of the unauthorized practice of law during that suspension, the matter returned to the Court, resulting in Seanez’s ultimate disbarment. 

Key Takeaway for Gov’t Practice

The ruling underscores a foundational principle of indigenous jurisprudence: government lawyers do not serve to weaponize legal technicalities against the tribe’s own foundational laws. Their ultimate fidelity must be to the People.

NOTE: This effectively highlights the tension between adversarial Anglo-style maneuvering (trying to “win” a political dispute by advising a client to ignore a court) and the deeper requirement for structural harmony and balance within government systems.

This decision continues to be taught at Navajo Nation Bar Association Conferences with regard to ethical practice of Navajo Nation lawyers.

Excerpts from the Opinion

Below are excerpts from “IV. THE GOVERNMENT LAWYER,” at pages 5-7 of In re Seanez. CLICK HERE for the full opinion

“The government lawyer [4]  has a duty “to exercise independent professional judgment and render candid advice” under Rule 2.1 of the Navajo Nation Rules of Professional Conduct. We note that the Federal Bar Association has taken the position that while the client is the agency where the lawyer is employed, the government attorney has a duty to the public trust. [5]  Such a duty is consistent with our opinion in Shirley 1, supra, which noted that the Navajo Nation government is accountable to the People because the Council, in Whereas Clause 8 to the Title 2 Amendments of 1989, recognized the People as the source of governmental power. Id. at 25. The government lawyer must be independent, candid and neutral rather than partisan in order that the public trust is protected. For those like the Chief Legislative Counsel, whose formal opinions indemnify government action, the adoption of the adversarial approach accepted in litigation would be improper in every respect because of the duty to the public trust. Because the CLC and AG are in positions to issue binding opinions to branch players, it is imperative that their opinions be clear, accurate, thoroughly researched, soundly reasoned, and primarily in service of the public trust. Therefore, the government lawyer is not just an advisor but a gatekeeper as well.

In a government arena where entities frequently disagree on policy, it is the responsibility of government lawyers to focus on the public trust when rendering advice. This duty distinguishes the work of a government lawyer from legal advice given to private clients. While the private practitioner zealously advocates for his client, the government lawyer advocates for the public trust and is constrained by the public trust from wholesale support of any governmental client’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers might craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the obligation to the public trust. See, e.g., Principles to Guide the Office of Legal Counsel, U.S. Department of Justice, December 21, 2004, at 1. Government lawyers should take their client’s goals into account and “assist their accomplishments within the law” without seeking “simply to legitimate the policy preferences of the administration of which it is a part.” Id. at 5.”

4     “Government lawyer” as used herein also includes government advocates.

5      Federal Bar Ass’n Professional Ethics Commission, Opinions, No. 73-1 at 72 (1973)

“The obligation to comply with the entirety of our laws apply with special force in instances where advice is unlikely to be subject to review by this Court, and where such advice bestows on government officials what is effectively an advance pardon, as in formal legal opinions issued by the CLC or Attorney General. We note that the federal courts have frequently observed that government has an overriding obligation to see that justice is done, and that such an overriding obligation imposes an expectation of even greater candor on government counsel than attorneys representing private parties. See, e.g., Berger v. United States, 295 U.S. 78, 88 (1935). Guidance with respect to the special priorities of a government lawyer is further provided by the Harvard Law Review Association in Conflicts of Interest and Government Attorneys, 94 Harv. L. Rev. 1413 (1981), which continues to influence government ethics today. Otherwise, the legal standards, including the rules of professional responsibility that apply to all Navajo Nation practitioners, also apply to government lawyers.”

“A lawyer working for the People is a leader who should be further guided as follows:

Diné bá nijigháao, bá naat’áanii jíliigo éí bá dóó bil nidajilnishígíí Diné bibeenahaz’áanii bee bich’i’ yájílti’ dóó bee nazhnitin dooleel; azhashii doo yídínéelnáada ndi, áko Diné binant’a’í dóó bá bee agha’diit’aahii jíliigo ei Diné t’áá náhwiist’áánt’éé bibeenahaz’áanii hol niliigo baan tsíjíkees dooleel.

As a representative of the People, a leader for the People, and also for those you work with, you must advise and teach them of the laws of the Diné, even though they might not agree with the law; therefore, to be a leader and lawyer for the People, one must use and respect the laws of all the People.”

“Government lawyers in upper level positions such as the CLC who are directly engaged in governmental policymaking must deal daily with political pressures from his or her client in a setting where institutional opinions, unlike mere legal advice, serve as get-out-of-jail free cards for government action. There will be many times when policymakers will bear on their lawyers to arrive at results that support their positions, to exclude from the results laws or provisions conflicting with the policymaker’s positions, or otherwise to come forward with reasons to justify defiance of those laws. Such political pressures do not relieve government lawyers of their duty “to exercise independent professional judgment and render candid advice” under Rule 2.1 of the Navajo Nation Rules of Professional Conduct. We note also that the ABA Committee on Ethics and Professional Responsibility has written, in Formal Op. 85-352 (1985) that “in the role of advisor, the lawyer should counsel the client as to whether the position is likely to be sustained by a court if challenged.” This ABA opinion dovetails with 7 N.N.C. §206 which requires that government cooperate with the courts and do not obstruct, interfere with, control, or influence court functions. Omitting likely issues to be faced in court, including the consequences of defiance of court orders, opens the door to unnecessary conflict and bears on the respect of the justice system as a whole, particularly when binding advice is issued extra-judicially through the assistance of government lawyers. Under all circumstances, it is the heightened duty of the government lawyer to be independent, candid, neutral rather than partisan because of their duty to the public trust, and most of all thorough in their analysis.”

“We note collaterally two recent instances, involving Mr. Seanez, in which lack of thoroughness in formal legal opinions helped create or prolong situations of intra-governmental conflict. We refer to these instances here in order to emphasize the need for thoroughness in the work of government lawyers, especially the work of the CLC, whose work product is not checked by anyone prior to issuance as formal opinions. The two situations set forth below have played no part in this Court’s determinations in this case and are included here as cautionary illustrations.

The first instance concerns recent upheavals at Diné College. 10 N.N.C. §2003(A) prohibits government officials from interrupting the day-to-day activities of the Board of Regents of Diné College. However, on May 5, 2010, Mr. Seanez issued Opinion No. CLC-02-10 which concluded that the Government Services Committee of the Navajo Nation Council has near absolute power of removal over members of the Diné College Board of Regents without accountability, even when exercise of the removal power effectively disables the board. Mr. Seanez’s opinion entirely failed to reference Section 2003(A) above. See Ferlin Clark v. Diné College, SC-CV-25-10, slip op. at 9 (Nav. Sup. Ct. October 27, 2010). The harms flowing from this situation are evident to the Navajo People, with unrest at the College continuing to the present day and with a new generation of students apparently convinced that strong arm methods as used by the Council are proper, rather than our traditional methods of talking things out.

The second instance concerns the process required for measures to be referred to the public for approval. Mr. Seanez issued Opinion No. CLC-04-10 which caused the law of referendum measures suddenly to appear unsettled following many years of settled practice of the Council that such measures must first be reviewed by the President [emphasis added]. On November 1, 2010, Mr. Seanez’s opinion was effectively overruled by the Window Rock District Court on the basis that our statutory laws, read comprehensively, clearly require the President’s review. Office of the Navajo Nation President and Vice-President v. Navajo Nation Council and NBEA, WR-CV-13 304-2010 (W.R. Dist. Ct. November 1, 2010). Reliance on Mr. Seanez’s opinion caused public confusion, undue and great expense, and more intra-governmental litigation.”

Research Notes

The government lawyer is critically relevant to the direction of government reforms on the Navajo Nation, and there are, presently, inherent conflicts between the tribal client and the indigenous public trust that may mirror the relationship between a federal agency and an indigenous community whose resources are federally managed.

Risk of Agency Conflict with the Indigenous Public Trust

In the Federal Bar Association (FBA) Professional Ethics Commission, Opinions, No. 73-1 at 72 (1973), the FBA explicitly tackled the “Who is the client?” question for federal attorneys and concluded:

The client of the government lawyer is the agency where they are employed. However, the government attorney’s ultimate duty is to the public trust, which requires a higher standard of conduct than that of a private attorney to a private client.

The FBA used this “public trust” framing to carve out a massive exception to standard confidentiality. They argued that if an agency official is engaged in corruption or illegal acts, the government lawyer’s duty to the public trust overrides their duty of confidentiality to that specific agency official. Under Opinion 73-1, a federal lawyer is ethically permitted (and sometimes required) to blow the whistle outside the agency.

It is to be noted that numerous Navajo Nation programs are funded under P.L. 93-638 Contracts with the Federal Government, which require strict compliance with federal laws as they assume the delegated trust responsibility roles and duties of the Bureau of Indian Affairs (BIA). These trust responsibility duties are primarily defined by the BIA, and are contained in the scope of work of these “638 Contracts.” See Navajo Nation and BIA Contracted Duties and Laws.

The 1868 Navajo Treaty serves as the foundation for the BIA’s duties. Crucially, matters not explicitly covered in the Treaty—such as language preservation, local governance innovations, community practices, and the holistic support of familial units—do not come under the umbrella of 638 contracts.

Because these “638 Contracts” have served as the Navajo Nation’s primary operational guidelines across so many programs for decades, roles and duties extending beyond BIA-defined trust responsibilities are likely not contemplated. This gravitational pull affects even offices that are not funded by 638 contracts, such as the Office of Navajo Elections Administration or the Office of Navajo Government Development. Though these offices perform sovereign duties, they still operate within the same federal accounting and performance framework as their 638-contracted counterparts—further entrenching the federal model as the default for all government operations.

⚠️ The Critical Risk: Because “638 Contracts” are guided by the 1868 Navajo Treaty and BIA definitions, there is a significant danger that the “public trust” is being misidentified and restricted solely to those narrow, federal, contract-based duties—while ignoring the broader traditional and holistic governance responsibilities inherent in Diné Fundamental Law.

The Government Lawyer’s Stalled Role 

On Dec 15, 1989, the Council passed CD-68-89 (The “Title 2 Amendments”) to forestall interference by the BIA following riots in Window Rock. CD-68-89 “temporarily” restructured the unitary government into three branches, establishing a “Government Reform Project” and promising that, through this project, the people would establish a government of their choice. The Title 2 Amendments was a hurried enactment, done under 6 months with no community input entirely as a stop gap. This is why the promise of developing their own government has been viewed for decades as a solemn, even sacred, promise. See also Charles Morris, Navajo Nation Council Reforms, 16 Am. Indian L. Rev. 613 (1991).

Initially expected to take no more than 3 years, reform has stalled now for 40 years. 

A. Primary Job Function of Gatekeeping the Navajo Nation’s Centralized Control Structure

Since 1976, the Navajo Nation has increasingly become a “massive service provider for the BIA” under 638 Contracts. For those of us privileged to serve in tribal government for many years, it is clear that the tribe is intent on a compliance-based structure that is 638 Contract-driven, that would more easily comply with BIA restrictions and oversight, including the Single Audit. This constant federal-level scrutiny creates an unstable, risk-averse environment as the tribe has the clear ambition to be a fully respected government among nations, but is unclear what that means beyond ensuring that funding streams are uninterrupted. Meanwhile, communities were loud across decades in pressing for governmental functions that could locally be controlled and that could address local Life Ways, including language preservation and local entrepreneurship. However, communities increasingly believe they lack both a voice or representation by the Navajo Nation’s own legal counsel in pursuing a government of their choice. See Chapter and Central Agency resolutions on a dense 113-page proposed constitution which no tribal legal counsel has helped them understand.

B. Conflicting Ethical Role: Protecting the People’s Power to Govern

In the 2010s, there ensued intra-governmental strife over the tribe’s need to get a firm grasp over its federal funding stream versus the community’s continued press for local governance. Ensuing was issuance of the following foundational court opinions and legislation that are now the ethical foundations for a Navajo Nation government lawyer.

C. Government Lawyer As “Connective Tissue” 

The Government Lawyer is supposed to be the “connective tissue” between the Navajo Nation’s centralized government processes, and community level self-governance and quality-of-life concerns. However, government lawyers working for the Navajo Nation find that their primary job is to ensure the Nation remains in compliance with federal BIA regulations to keep funding flowing, and their “success” is defined by avoiding federal audit findings or lawsuits. This makes them the natural enemy of reform. Any attempt to shift away from the existing structure or to push for establishing structures that implement the people’s choices e.g. local governance, preservation of language and traditional Diné patterns of extended family settlement, may often be viewed by these lawyers as a “legal risk” to the revenue streams of the Nation and a risk to their job functions. This translates to defensive legal advice against community-based reform options. 

D. The 1995 Government Legal Memorandum Delaying the Local Empowerment Initiative

When in 1995, the Local Empowerment Initiative presented  a now discarded version of the Local Governance Act that described its purpose as “to recognize governance at the local level” and provide local “governmental authority with respect to local matters consistent with Navajo law, including custom and tradition,”[1] the Navajo Nation Department Of Justice attached to it a cautionary memorandum stating inter alia that an increase in local government autonomy would result in a “depressed financial and fiscal situation leaving the Navajo Nation Government without sufficient financial and fiscal support.”[2]. The legal memorandum called attention to multiple issues concerning control, liability, land assets, and funding that they believed needed to be maintained by central tribal government without ceding governing to local chapters. The attitude of the legal counsel was that the local chapters could not yet handle local governance, and this lack of local readiness would blow back on the Navajo Nation.

Based on the memo of the tribe’s legal counsel attached to the 1995 LGA draft, the Navajo Nation Council ultimately resolved that the proposed legislation could not pass due to “many major deficiencies” relating to the alleged “fiduciary responsibilities and lawful authorities of the Navajo Nation Council and its standing committees.”[3] The NNC objected to losing control over matters related to resource management, home site leasing, approval of ordinances, and provision of insurance coverage.[4] While acknowledging the Diné interest in attaining self-sufficiency and local control over local matters,[5] the conclusion was that any grant of local control would be a “premature delegation of authority to the Navajo Chapters.”[6]. This position has hardened over 30 years.

When chapters and communities try to push for language and Life Ways preservation, community land use, project, and funding local control, they often hit a wall of memorandums written by government lawyers explaining why such things are not permissible or possible under current federal/tribal law, with normally some expression of the local chapters’ ongoing deficiencies.

A question that might be asked by the government bar is whether, 30 years later, local chapters have had the assistance to self-govern beyond running on an audit compliance treadmill. Have impartial investigators and lawyers been assigned to see, e.g., how the tribe’s self-management of leases and permits have affected local communities; whether local community land use management committees have the necessary maps and current leasing information to plan; and what may now be paralyzing local solutions that can be traced to the governing center. 

At a recent Budget and Finance Committee meeting in early June, Council Delegates clearly felt these were tasks that ought to be pursued by the Office of Navajo Government Development, which has been in existence since 1989, is presently run by a former Navajo Nation Attorney General, and has not, to date, offered any such empirical findings to the Council.

E. Upholding a Governance of Internal Ethical Tension

Tribal employees—especially those in administrative or technical roles—are often trapped in a cycle of “survival auditing.” The focus isn’t on community service or innovation; it’s on satisfying rigid, and often outdated requirements of federal manuals to keep the funding flowing. The communities see for themselves the current legal framework that is obsessed with clean audits, risk management, and blaming chapters rather than provide solutions for community joy. On the one hand the lawyers play a central role in a kind of engine room, making sure that engine never stops running or changes direction. On the other hand are communities that feel they are to blame and have nearly stopped believing that their condition or voices are even welcome. The tension between serving the Navajo Nation government and serving the Navajo People is a core ethical tension for the government lawyer.   

1     Navajo Nation Code Ann. tit. 26, § 1(B)(1).
2     Navajo Nation Council Res. No. CJA-1-96 (1996), https://www.nndcd.org/wp-content/uploads/2021/03/CAP-34-98.pdf, attached exhibit.
3     Navajo Nation Council Res. No. CJA-1-96 (1996).
4     Id. at Whereas Section 3(A).
5     Id. at Whereas Section 6.
6     Id. at Whereas Section 3(E).

The above note liberally borrows from Yazzie, H., Deal, R., Foo, J., Hamersky, M., Bitsuie, R., Dennison, G., Bourgeois, T., Tuttle, T., Blend, S., Palmer, L., & Bonetti, E. (2021). Live, work, govern using Diné fundamental law. The Urban Lawyer, 53(1), page 48. https://indiancountrygrassroots.org/wp-content/uploads/ABATUL-Vol53No1_Yazzie-et-al.pdf

 

For related reading, go to Stalled in Transition – The “638 Contract” Navajo Nation Government  →