Dismissal Against Navajo Women

By Marley Shebala
The Navajo Times

KEAMS CANYON, Ariz. ­ The Hopi Tribe is “most disappointed” with Hopi Tribal Judge Gary LaRance¹s dismissal of trespass charges against five Navajo women on March 4. The Navajo Nation applauded LaRance¹s decision.

“We are most disappointed with the outcome of the case,” said Cedric Kuwaninvaya, Hopi Land Team chairman. Kuwaninvaya added, “The Hopi Tribe maintains that the defendants were unauthorized to be at Camp Anna Mae, which is a closed area of the Hopi Reservation, and they did not seek the required permission from the Tribe to hold any gatherings on Hopi land.

“These two acts are a clear violation of Hopi tribal law,” he noted. Hopi Chairman Wayne Taylor, Jr. said, “The case was dismissed based on a failure to establish legal technicality and in no way does the ruling vindicate the Navajo women’s presence at Camp Anna Mae, which is a closed area of the Hopi Reservation.”

Navajo Nation Legislative Branch press officer Carolyn Calvin said Council Speaker Edward T. Begay applauded LaRance¹s decision to dismiss the trespassing charges against the five Navajo women who were arrested on July 11, 2001. Begay said, “I am thankful that these ladies will not have to live with the anguish and anxiety of being criminally prosecuted for seeking spirituality and solace on lands they have always lived on.

“Justice and protection of basic rights have been provided by Chief Judge LaRance¹s decision,” he said.

The defendants were Joella Ashkie, age unknown; Louise Benally, age unknown; Ruth Benally, 85; Elvira Horseherder, 62, and Pauline Whitesinger, who is in here 80s, live on Hopi Partition Lands on Big Mountain.

According to the women and their attorneys, Joe Washington of Flagstaff and Robert Malone of Washington, D.C., Hopi Tribal police arrested them at the Hopi Tribal Administrative Offices after the Hopi police transported them there from the annual Sun Dance at Camp Anna Mae, which is located next to Louise Benally¹s hogan. Washington said Ruth Benally, who only speaks and understands Navajo, thought the Hopi police were taking her to talk with Taylor about the SunDance. He said the other women went with her simply because they are all family members and relatives support each other. Hopi tribal spokesperson Claire Heywood said that after two days of testimony from witnesses for the Hopi Tribe, Washington asked for a dismissal because Hopi Tribal Deputy Prosecutor Geoff Tager had not proved its case. Heywood explained, “In order to prove criminal trespass under Hopi Ordinance 21, the Tribe had to prove that the women entered an enclosed, fenced or cultivated area without authorization.

“According to Washington, the tribe had failed to prove that Camp Anna Mae met any of these criteria,” she said.Washington said, “The Hopi trespass statute prohibits any Indian, including Hopis, of entering any area that is fenced, cultivated, or enclosed without the permission of the lawful tenant or assignee or the Hopi Tribe.

“I believe that the Hopi Tribe has to twist the meaning of the statute to even begin to prosecute the five Navajo women in this case,” he said. Washington, in referring to statements by Taylor and Kuwaninvaya, said the Hopi Tribe emphasized that the defendants were in a closed area of the Hopi reservation and that they didn¹t have permission to hold any gatherings on Hopi land.

He said, “When the Hopi Tribe says this area was closed it means closed to anyone not Hopi. They introduced an exhibit to that effect at trial.” But many Navajos, including Ruth Benally, have signed accommodations agreements with the Hopi Tribe, which allows them to live and move freely on Hopi Partitioned Land, said Washington.

“I think it is horrible that Navajos, who have signed accommodation agreements would be jailed for being on Hopi land because they are not Hopi,” he said. He explained that the trespass ordinance used to jail the Navajo women says nothing about requiring permits to hold a gathering on Hopi land or how to obtain such a permit. And exhibits of the Hopi Tribe at the trial indicated that even if the defendants sought a permit to hold their religious ceremony that it would be refused, added Washington.

“I think that the acquittal of these defendants was very appropriate,”he emphasized. Malone explained that Washington asked for a directed verdict or decision from the judge instead of the jury. About a day had been spent on selecting a six-member jury from among 125 Hopi people called as prospective jurors by the tribal court.

Malone said Tager had insufficient evidence – no facts – to prove thec harges against the five women. He said Washington motioned for acquittal after Tager presented all his witnesses and rested his case on Friday. Malone said LaRance then directed the prosecution and defense to research whether or not the prosecution could amend the trespassing complaints.

He said the judge also informed the prosecution and defense that he would also be researching that questions over the weekend. According to a copy of one of the complaints, which were similar for all five of the women, the “defendant did without proper authorization from the Hopi Tribe unlawfully trespass onto Hopi Partition Land in range unit 262 for the purpose of conducting a Sun Dance ceremony and did refuse to leave such area after being instructed to by Hopi Chief Ranger (Merve) Yoyotewa.” The arrest date and time on all four complaints was July 11 at 4:30 p.m. Malone recalled that Tager argued that the defendant trespassed when they entered Camp Anna Mae, an area that was enclosed by the Sun Dance participants and natural ridges. He said Washington and he argued again on Monday that there was a second road to Camp Anna Mae that was not closed by the Hopi Tribe and that people could cross the ridges by foot or horseback.

Malone said LaRance agreed that the Hopi Tribe did not enclose the area and that people could come and go. He noted that Washington and he didn¹t even have to put on a case. Malone said Tager indicated to the court that he might file other charges. But Tager cannot re-file the same charges, he added. The Navajo Times left several messages for Tager but at press time, Tager had not contacted the Navajo Times.

Malone emphasized, “These charges were not at all sufficient to bring legal action against these people. They never should have been arrested and spent time in jail.” They also had the potential maximum sentence of one year in jail and, or a $5,000 fine if they were convicted hanging over their heads, he added. Malone said, “We thought all along that they were being prosecuted for participating in the Sun Dance.” He said Washington and he were prepared to file an order for illegal imprisonment in federal court if their clients were convicted because “real religious issues” were involved.

It would have been a violation of freedom of religion under the Indian Civil Rights Act and Bill of Rights, said Malone. But Taylor noted that the dismissal was not based on religious freedom. “Religious freedom was not an issue and Chief Judge LaRance declined to hear any testimony regarding allegations of the Hopi Tribe violating the defendants’ religious rights,” he said. Washington disagreed, “The Hopi Tribe’s statement that the complaint arose out of an ‘unauthorized Sun Dance on Hopi land’ admits that this controversy involves a Sun Dance which is a religious ceremony. “The issue of religious freedom is thus inseparable from the other facts in this case.”

He also said that under the free exercise clause of the Indian Civil Rights Act, the Hopi Tribe cannot require a permit for a religious ceremony. “The Hopi Constitution gives Hopis the right to worship in their own way, but the Hopi Tribe denies this right to Navajos living on Hopi Partitioned Land,” said Washington.

Taylor reiterated that the dismissal “in no way sanctions the holding of any future gathering on Hopi land without the expressed consent of the Hopi Tribe, regardless of the purpose of the gathering.” But he said the ruling in this case demonstrates that everyone subject to the jurisdiction of the Hopi Tribal Courts, both Hopi and non-Hopi, can receive a fair and unbiased trial in the Hopi court system. Malone said after everything¹s said and done, he definitely believes that the people on the jury were fair-minded and not influenced by bias.

LaRance, throughout the trial, instructed the jury to be fair and free of bias. Tager also repeatedly emphasized that the prosecution wanted a fair and unbiased trial for the defendants. But during a lunch recess in the trial, a staff member of the Hopi Tribal Prosecution Office, who refused to identify herself, said the defendants were “concoting voodoo” and sticking pins in dolls. Her remarks came after Hopi Tribal Court bailiff Jake Polevyaoma informed Tager and her that the defendants attorneys had telephoned and said the defendants would be late returning from lunch.Tager, who immediately walked away from her after she made her comments, also declined to identify her. He would only say that she worked for the prosecutor¹s office.