CNGD/ONGD Plan of Operations
The Government Development Project is mandated inter alia to accomplish the People’s project, to provide empirical findings, to ensure informed engagement, and to comply with Diné Fundamental Laws.
The Government Development Project comprises the Commission of Navajo Government Development (CNGD) as oversight for the Office of Government Development (ONGD). CNGD/ONGD’s original Plan of Operations was established by the Title 2 Amendments. Its current Plan of Operations was enacted by Navajo Nation Council Resolution CD-92-20 (Dec 23, 2020) which includes these legal mandates and duties —
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- to accomplish the People’s project through “proposals for alternate forms of chapter government and chapter self-determination or other local community self-sufficiency for consideration by the Navajo Nation Council and the Navajo People”;
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- to provide evaluations, statistics and evidence, to ensure informed engagement, and
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- to “promote, enhance, honor, and to comply with Diné Fundamental Laws — Diné Bi Beehaz’áanii Bitse Siléí 1 N.N.C. §§ 201-206.”
Shirley v. Morgan (Three Opinions) – Introduction
Shirley v. Morgan collectively refers to THREE opinions the Navajo Nation Supreme Court (NNSC) issued between 2008-2010 which serve as the bedrock for Navajo government reform.
The opinions are:
- In re Two Initiative Petitions filed by President Joe Shirley (July 18, 2008);
- Shirley v. Morgan I (June 2, 2010); and
- Shirley v. Morgan II (July 16, 2010).
All three opinions being issued in relation to President Joe Shirley’s initiative to reduce the Navajo Nation Council from 88 to 24, with Lawrence P. Morgan being the Speaker of the Navajo Nation Council at the time, the opinions are informally referred to as the Shirley v. Morgan trilogy of opinions.
Collectively, these opinions affirm that the Government Development Project (GDP) was established as an organ of the People, intended to facilitate the People’s systemic solution in establishing a government of their choice. The GDP was established as a necessary acknowledgment of the flaws inherent in the 1989 imposition of the current three-branch structure—a structure enacted through a swift Council vote during intense turmoil, that lacked public mandate. Ultimately, the GDP served as a binding commitment to restore the People’s direct voice in the design of their permanent government
Summaries and links to the three opinions are set forth below.
1. In re Two Initiative Petitions filed by President Joe Shirley
Link: In re Two Initiative Petitions filed by President Joe Shirley (July 18, 2008)
In this opinion, the Navajo Nation Supreme Court (NNSC) recognized the People’s inherent right to initiate change, stating that “the ultimate power to govern the Nation always remains with the People.”
President Joe Shirley had filed two initiative petitions to reduce the size of the Navajo Nation Council from 88 to 24. The Speaker at the time was Lawrence P. Morgan. This matter arose when the Office of Hearings and Appeals filed a certified question to the NNSC concerning whether the Council may independently amend 2 N.N.C. § 102(A). Noting the specific language of the provision which addressed Council size, the Court found the matter must be addressed directly by the people.
2. Shirley v. Morgan I
Link: Shirley v. Morgan (June 2, 2010)
In this opinion, the Navajo Nation Supreme Court held that the Council may not “re-define the Fundamental Law of the Navajo Nation to include man-made law.” The Court also emphasized that participatory democracy does not come from the non-Navajo nor does it come from the Council. It comes from a deeper, more profound system of governance: the Navajo People’s traditional communal governance, rooted in the Dine Life Way.
This case arose after President Joe Shirley was placed on administrative leave by the Navajo Nation Council using emergency legislation based on his role in business dealings never made public nor shared with Shirley. The Council Speaker at the time was Lawrence P. Morgan.
President Joe Shirley petitioned the Navajo Nation Supreme Court (NNSC) to enjoin the Council from placing him on administrative leave. Stating that this was a “critical time of great disharmony between the branches,” the NNSC did issue the requested injunction. Nothing that the branches had been in disagreement over the source of governmental authority for two years, the Court emphasized that “k’e is the high standard which the People hold our leadership in their enactments and exercise of powers during the period they hold Office, in service of the Navajo People . . . and in dealings with each other.”
Stating that the Council may not “re-define the Fundamental Law of the Navajo Nation to include man-made law, the Court invalidated Resolution CJA-08-10 which had attempted to establish the Council’s own enactments as Fundamental Law. The Court stated:
Dine bi beenahaz ‘aanii as acknowledged by the Council teaches that our Dine leaders are to adhere to the values and principles of Dine bi beenahaz ‘aanii. 1 N.N.C. §203 (2002). Dine bi beenahaz ‘aanii are the very foundational laws of Navajo culture. They are not man-made law, and may not be “enacted” by individuals or entities or the Navajo Nation Council, they may simply be acknowledged by our man-made laws. Diné bi beenahaz’áanii are immutable.
Cautioning against “the terrible history of colonialism and its terrible impact on all Indian Nations,” the Court stated: “As a tribal Nation, we have asserted our inherent sovereignty—our historical sovereignty, our language, culture, our value system, and our legal heritage based on unwritten Fundamental Laws that form the very foundation of who we are as Dine.” The Court added:
We have said before that participatory democracy does not come from the non-Navajo nor does it come from the Council. It comes from a deeper, more profound system of governance: the Navajo People’s traditional communal governance, rooted in the Dine Life Way.
The Court acknowledged and held that “the Whereas and Resolved Clauses of CD-68-89 (Title II Amendments) operate today as a solemn promise by the Council to the People, intended to bind the hands of future Councils. They embody the commitment of the Council to a structure they hoped and believed would serve the People effectively until the People themselves might find a path to a better way.”
Shirley v. Morgan II
Link: Shirley v. Morgan (July 16, 2010)
This opinion makes clear that the Commission and Office of Navajo Gov’t Development have ministerial powers as a facilitator and repository of the People’s voice, and have no autonomous powers as an independent legislature.
Affirming the power of the people to choose their government, the NNSC restored the Commission on Navajo Govt Development (“Commission”) and ordered that it be restored according to the original terms in the Title 2 Amendments of 1989 “to finally fulfill their purpose of enabling the People to participate in the development of our Navajo Nation.” The Court noted:
[The Commission and Office] shall be funded at their original funding levels or at sufficient levels to fulfill their duties and responsibilities, whichever is greater. The duties shall be performed within a reasonable time frame to be set by the Commission. Recommendations by the People may be via chapter resolutions, referendum, convention of representatives of the People, or other publicly accepted mechanism to be determined by the Commission after feedback from the People.
Local Governance Act, 26 N.N.C. §1(E)
26 N.N.C. §1(E) provides the chapters have a voice, via referendum vote of a majority of the chapters, in any amendment of the Local Governance Act.
The proposed Supreme Law or constitution would “supersede” the Local Governance Act (LGA) at Title 26 of the Navajo Nation Code. Rather than a general referendum ballot, the Navajo Nation Code at 26 N.N.C. §1(E) sets forth the following method for amendment of the LGA:
This Act may be amended by the Navajo Nation Council subject to approval of a majority of all chapters of the Navajo Nation; or this Act may be amended by referendum vote of a majority of all chapters as set forth in 11 N.N.C., Navajo Nation.
Click here for the full Local Governance Act, current through April 2021.
Navajo Nation Election Board
The Navajo Nation Board of Election Supervisors require “there can be only one subject matter presented in each question proposed for referendum . . . and cannot be potentially confusing to voters.”
For the Election Board’s resolution regarding the Election Code’s referendum requirements, see BOESS-070-14 (2014).