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The tribunal that stopped sitting

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B · From the record   This article is built from published Navajo Nation Supreme Court opinions and the Navajo Nation Code, cited by name. It contains no candidate quotations, because not one of the 42 candidates mentioned the Labor Commission. Nothing here is legal advice. How we verify →

If a Diné worker is fired, the question of whether it was lawful is decided by a body most people cannot name: the Navajo Nation Labor Commission. It is not a court. It is not the office you file with. It is the tribunal at the end of the road, and what it decides sets the meaning of “just cause” for every worker on the Nation.

Nobody can read what it has decided. And once, it stopped hearing cases altogether.

The three bodies, and why the difference matters

OFFICIAL SOURCE

The Navajo Preference in Employment Act is a law of the Council: no adverse action against a Navajo employee without just cause, and written notice stating that cause. The Office of Navajo Labor Relations is an executive office — part of the Division of Human Resources — that receives charges and investigates them. The Labor Commission is a quasi-judicial body that holds evidentiary hearings, decides whether the Act was violated, and awards relief. Its decisions may be appealed to the Navajo Nation Supreme Court and enforced in the district courts, and its budget runs through the Council’s Law and Order Committee.

Three bodies, three branches, three different answers to “who fixes this.” ONLR 101 walks the whole path.

What the Supreme Court has said the standard is

Because the Commission’s decisions are unpublished, almost everything a person can learn about how “just cause” is applied comes from the appeals — the small fraction of cases that reach the Navajo Nation Supreme Court, whose opinions from 2013 forward are published. A few things that Court has established:

In Dilcon Navajo Westerner / True Value Store v. Jensen, the Court held that the Commission is not required to hold a hearing within sixty days of receiving a complaint — but that it must hold one within a reasonable time, without excessive or undue delay, respecting the due process rights of both parties. The Court also held that an employee manual’s terms may create enforceable expectations, and that whether just cause existed is largely a question of fact for the Commission.

In Rosenfelt & Buffington v. Johnson, the Court considered an employer that met with an employee over more than eight months about repeated violations without imposing discipline. The Commission found no just cause. The Supreme Court reversed, holding that the cumulative effect of repeated violations can be substantial misconduct — and, in the same opinion, discussed k’é measures as desirable and even preferred in the Navajo workplace, while cautioning that any measure must be fundamentally fair, so that employees know the standard they are held to.

FINDING Read that again: the Nation’s highest court has woven K’é into employment law — the expectation that people talk things out and correct themselves before punishment. That is a genuinely Diné contribution to labor law, and it exists in published opinions that most workers and most employers will never see, because the decisions below them are not published at all.

The year the Commission did not sit

FINDING

In Bahe v. Navajo Nation Labor Commission (2018), the Navajo Nation Supreme Court issued a permanent writ of mandamus ordering the Commission to hear a complaint. The Court’s decision records the sequence: the complaint was filed in October 2017; a hearing was noticed for February 2018; it was rescheduled to August; and the Commission failed to hold the hearing it had set. The decision further records that as of that October, the Commission had not convened to hear any formal complaint filed with it.

The Court did not describe this as an administrative lapse. It described the Commission as holding a fiduciary duty to the Navajo people, working on their behalf as naat’áanii — and said that where the dispute concerns a person’s daily livelihood, the duty is to seek a harmonious resolution, not to let the matter sit. The Court found the petitioner had a legal right to have his complaint heard, and that the Commission was legally bound to hear it.

It took one worker, a lawyer, a petition for an extraordinary writ, and the Nation’s highest court to make the machinery move for one person. The record does not tell us how many others were waiting, because nobody publishes that number.

What this costs, in plain terms

A worker fired on the Navajo Nation has no recourse to the federal Equal Employment Opportunity Commission for discrimination based on race, sex, religion, national origin, or disability: Title VII of the Civil Rights Act excludes Indian tribes from its definition of employer, and the EEOC says so plainly. That is sovereignty operating as designed — the Nation answers for how the Nation treats its workers. But it means the NPEA, ONLR, and the Labor Commission are not one option among several. They are the only road.

And on that road: the tribunal’s decisions are unpublished, so no worker and no employer can read how the standard has been applied to facts like theirs. Its caseload is unpublished, so nobody outside can see whether it is sitting. Its intake, at ONLR, is unpublished, so nobody knows how many people start down the road at all. Three numbers. Nobody prints them.

What the candidates said about it

FINDING

Nothing. Across all 42 interviews, no candidate named the Labor Commission, the Office of Navajo Labor Relations, or a grievance. Two candidates spoke of retaliation, one of employee rights, one of labor relations — in their own words, without naming the machinery. That is not a failure of the candidates. It is a measure of how invisible this system is, even to people running to lead the government that operates it.

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