Shirley vetoes tobacco ban
Cites affect on revenue

By Kathy Helms
Diné Bureau

WINDOW ROCK — Navajo Nation President Joe Shirley Jr. Thursday vetoed the Commercial Tobacco Free Act that would have banned cigarette smoking and tobacco chewing in all public places on the Navajo Nation, including casinos.

In his veto message to Navajo Nation Council Speaker Lawrence T. Morgan, Shirley said that although it is indisputable and already widely known that commercial and smokeless tobacco use is harmful to individual users and those affected by secondhand smoke, he was concerned that the ban would infringe upon bona fide religious ceremonies.

The president said the ban also would affect the Nation’s ability to generate revenues through its gaming initiative, did not address concerns of due process and equal protection, and failed to adequately focus on underage smoking.

The law, he said, “is unreasonably broad, unenforceable, provides no administrative appeal process, puts the Nation at a competitive disadvantage, and fails to address the real problem on the Navajo Nation of underage smoking.”

According to the legislation, the act prohibits the use of commercial tobacco products in public places, places of employment, and “shared public airspace within the Navajo Nation.”

“Shared” is broadly interpreted to include “air shared with all beings and things of the earth.” Prohibited use of tobacco products could result in civil penalties of $100 for a first violation or 20 hours of community service, while a third offense within a 12 month period could result in a $500 fine or 100 hours of community service.

Shirley said the law also is ambiguous about the type of tobacco which would be allowable for use in bona fide religious ceremonies.

“I’m afraid the law can be construed to mean no commercial tobacco use for religious ceremonies. If so, this will subject those attending the religious ceremony, as well as the practitioners, to liability for allowing the use of commercial tobacco in bona fide religious ceremonies. This was not the intent of the legislation but would be the effect,” he said.

The smoking ban legislation gave enforcement responsibility to the Navajo Nation Division of Health, although no budget impact analysis was provided to explain what financial or administrative burden that would place on the division.

Herman Shorty of the Office of Environmental Health, which would be charged with coming up with regulations, policies and procedures for managing the act, said Wednesday that while the act might be viewed as an unfunded mandate, “there are funds available that we would pursue.

“There’s already a collection of tobacco products tax that’s already in place. As of Sept. 30, 2007, there was approximately $153,000 in that line item,” he said, adding that with the legislation, the division would look to the controller and Council to redirect those dollars to aid in supporting enforcement, education, prevention, and other components.

Shirley said that even if the division attempted to enforce the ban, there were no provisions to ensure that due process and equal protection under the law would be afforded to individuals issued a citation.

“Compounding this problem, the legislation allows any citizen to register an oral or written complaint to initiate enforcement,” he said. “That raises serious concerns about the burden of proof required in matters involving civil penalties.”

Ray Etcitty, former legislative counsel and now counsel for the Navajo Gaming Enterprise, said during an interview Wednesday that enforcement would rest with Navajo Nation District Court, which is already overburdened.

“Currently, district courts are dealing with family issues, commercial issues, crime, juvenile crime. What are we going to do, say, ‘Here, we want you to hold a trial to deal with a smoker’?”

The legislation also contained a reference to the role of the attorney general to seek collection of all unpaid civil penalties but did not include information about any kind of administrative appeal process, Shirley said.

A smoking ban would put planned Navajo Nation casinos at a significant competitive disadvantage that would result in an expected 20 percent reduction of projected revenues, according to the president.

“This means, essentially, that Navajo jobs will be cut, the Enterprise will default on the loan with the Nation, and the ability to seek outside financing from other lending institutions is very unlikely, all of which would likely prohibit the development of additional gaming establishments.”

Shirley said he is committed to working with sponsors of the legislation to develop a law that does not infringe upon bona fide religious ceremonies, affect the Nation’s ability to generate revenues through its gaming initiative, addresses concerns of due process and equal protection of the laws, and focuses on underage smoking.

“As leaders of the Navajo Nation, and upon the people’s approval of gaming, we have worked together and made very deliberate choices to pursue gaming for the benefit of our people,” he said. “The revenue-generating potential is huge and we simply cannot afford to risk this potential with well-intended legislation that will put the Nation at a competitive disadvantage.”