June 23, 2005- The Assistant Attorney General for the Economic/Community Development Unit of Navajo Nation Department of Justice (“DOJ”) issued an advisory opinion, stating that the “Kayenta Township Commission has the full legal authority to give final Navajo Nation approval to a business site lease within the boundaries of the Kayenta Township.” This opinion also addressed the fact that although the KTC had leasing approval authority, federal law required that the Navajo Nation be the lessor in the business site leases, since the trust relationship involving lands was between the Navajo Nation and the federal government. In recognition of this trust relationship, DOJ and the Kayenta Township developed a four-party lease agreement between the potential lessee, the Navajo Nation as lessor, the Kayenta Township Commission as agent for the Navajo Nation, and the BIA as the trustee. The format of the four-party lease agreement was accepted and agreed to by the KTC, Navajo Nation and BIA. Under this arrangement, the parties also recognized that the KTC would administer the new leases on behalf of the Navajo Nation, or as agent for the Navajo Nation as lessor.
April 26, 2006- Although earlier DOJ opinions consistently supported the Township’s business site leasing authority, the Attorney General of the Navajo Nation issued a new opinion (“2006 AG Opinion”) stating that the “2003 amendments [did] not provide an express grant of business site leasing approval authority to the Township” and that pursuant to 2 N.N.C. § 724(8)(2) “only the [Economic Development Committee of the Navajo Nation Council] has exclusive authority to delegate its approval power over business site leases.” The 2006 AG Opinion noted that there appears to be a conflict between the concepts of the “Home Rule” Doctrine and “Non-delegation” Doctrine, which affects the ability and authority of the KTC to provide “final” approval of business site leases within the Township. However, with all due respect, the KTC disagrees with the 2006 AG Opinion because it did not fully discuss the Home Rule Doctrine and it did not attempt to reconcile this doctrine with the Non-Delegation Doctrine, nor with the intent of the Navajo Nation Council in adopting the 2003 Amendments to the Kayenta Township Plan of Operation, i.e., the Navajo Nation Council did not intend to rescind the Kayenta Township’s powers and authorities to exercise self-government within the boundaries of the Kayenta Township, including the ability to approve and administer leases. Furthermore, the 2006 AG Opinion did not justify or discuss the basis for concluding that the Navajo Nation Council operates by the Non-Delegation Doctrine. The 2006 AG Opinion simply did not cite any case law or any statute to support the Non-Delegation Doctrine. In fact, the Non-Delegation Doctrine is not contained in any Navajo court case nor does it appear in the Navajo Nation Code.
June 3, 2006- Pursuant to Resolution No EDCJN-28-09, the Economic Development Committee “authorize(d) the delegation of approval authority for business site leases to the Kayenta Township except for those business site leases under the leasing authority of the Navajo Nation Shopping Centers Corporation….” As a result of this action, at present, the Kayenta Township is fully empowered with authority to approve, manage, enforce and monitor business site leases within the boundaries of the Kayenta Township.
June 14, 2006- The Internal Revenue Service (“IRS”) formally recognized the Kayenta Township as a political subdivision of the Navajo Nation under 26 U.S.C. § 7871(d), which enhances the ability of the Kayenta Township to qualify for federal and state funding and obtain loans with financial institutions for community programs and projects. Although it was obvious, the State of Arizona consistently requested the Kayenta Township to provide formal proof that it was considered a political subdivision of the Navajo Nation. The IRS letter ruling now provides that proof.
October 18, 2010- Fortunately, the 2006 AG Opinion was later rectified by a new AG opinion issued, which concluded that:
On June 3, 2006, pursuant to Resolution No. EDCJN-28-09, the Economic Development Committee “authorize[ d] the delegation of approval authority for business site leases to the Kayenta Township except for those business site leases under the leasing authority of the Navajo Nation Shopping Centers Corporation…. “As a result of this action, at present, the Kayenta Township is fully empowered with authority to approve, manage, enforce and monitor business site leases within the boundaries of the Kayenta Township”
In approving the Home Rule status of the Kayenta Township, the Navajo Nation Council granted the KTC “jurisdiction over all that area authorized and designated by the Navajo Nation Council in November 1985 (Resolution CN-86-85)…” and stated that the “authority of KTC shall prevail over all other authority contingent upon its consistency and compliance with all generally applicable laws and regulations of the federal government and the Navajo Nation.” This broad grant of authority is consistent with the concept of “Home Rule,” which is limited only by the generally applicable laws and regulations of the federal and Navajo Nation government.
