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Calendar No. 582
104th Congress Report
SENATE

2d Session 104-363
_______________________________________________________________________

PROVIDING FOR THE SETTLEMENT OF THE NAVAJO-HOPI LAND DISPUTE, AND FOR
OTHER PURPOSES

_______

September 9, 1996.--Ordered to be printed

_______________________________________________________________________

Mr. McCain, from the Committee on Indian Affairs, submitted the
following

R E P O R T

[To accompany S. 1973]

The Committee on Indian Affairs, to which was referred the
bill (S. 1973) to provide for the settlement of the Navajo-Hopi
land dispute and for other purposes, having considered the
same, reports favorably with an amendment in the nature of a
substitute and recommends that the bill as amended do pass.

Report on S. 1973, the Navajo-Hopi Land Dispute Settlement Act of 1996

purpose

The purpose of S. 1973 is to ratify the settlement of four
claims of the Hopi Tribe against the United States and to
provide the necessary authority for the Hopi Tribe to issue 75
year lease agreements to Navajo families residing on Hopi
Partitioned Land. This legislation will ratify the Settlement
and Accommodation agreements among various parties, including
the Department of Justice, the Hopi Tribe, the Navajo Nation,
and the Navajo families residing on the Hopi Partitioned Lands.

background

The Navajo-Hopi Land Dispute Settlement Act of 1974 \1\ was
enacted in an effort to settle land disputes which have divided
the Navajo and Hopi Tribes for more than a century. The Act was
intended to bring about a settlement of all of the rights and
interests of the two tribes in lands known as the 1882
Executive Order Reservation and the 1934 Navajo Reservation.
The origins of this longstanding dispute can be traced to the
creation of the 1882 Hopi Reservation and the 1934 Navajo
Reservation. On December 16, 1882, President Chester Arthur
signed and executive order that set aside approximately 2.5
million acres of land for the Hopi Tribe and ``such other
Indians as the Secretary of the Interior may see fit to settle
thereon.'' In June of 1934, the Congress enacted two laws which
established the exterior boundaries of the Navajo Reservation
and set aside the lands within the reservation for the Navajos
and ``such other Indians as may already be located thereon.''
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\1\ P.L. 93-531, 25 U.S.C. Sec. Sec. 640d et seq.
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At the time of the 1882 Executive Order a small but
indeterminate number of Navajos resided on portions of the
reserved lands. Similarly, at the time of the 1934 enactments,
Hopi and other Indians, including the San Juan Southern
Paiutes, resided on the lands reserved as part of the Navajo
reservation. Most of the Hopi residents of the 1934 Reservation
were located in the village of Moenkopi near Tuba City.
Throughout the 1890's and to this day, the Hopi and Navajo
Tribes have disputed the right to title and occupancy of the
lands in both reservations based on the 1882 Executive Order
and the 1934 Acts of the Congress.
In the early 1940's, the Secretary of the Interior
established twenty-one grazing management districts on the 1882
Reservation and the 1934 Reservation in an effort to control
livestock and improve range management and soil conservation.
Of these grazing districts only District six, located in the
south-central portion of the 1882 Reservation, was identified
as an exclusively Hopi district. All of the remaining districts
were assigned to the Navajo Nation. The establishment of these
grazing districts significantly intensified the disputes
between the Navajo and Hopi Tribes, with the Hopi Tribe
vigorously protesting the establishment of District Six.
Despite efforts to defuse tensions and promote cooperation
between the two tribes, the underlying disputes regarding
jurisdiction over lands in the 1882 Reservation and the
creation of District Six resulted in legislation which
authorized suits between the Navajo and Hopi Tribes to quiet
title to the 1882 Reservation.\2\ The legislation authorized
the Tribes to file suit in the Federal District Court for
Arizona `` * * * for the purpose of determining the rights and
interests of [the Navajo and Hopi Tribes] in and to [the 1882
Reservation] and quieting title thereto in the tribes * * *
establishing such claims * * * as may be just and fair in law
and equity.'' P.L. 85-547 was signed into law on July 22, 1958.
On August 1, 1958, the Hopi Tribe sued the Navajo Nation Under
the Authority of the Act.
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\2\ P.L. 85-547, 72 Stat. 403.
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In Healing v. Jones,\3\ the court held that the Hopi Tribe
had the exclusive right to lands in District Six and that both
the Navajo and Hopi Tribes had equal rights to the surface and
subsurface of the rest of the 1882 Reservation. Under this
ruling, the area of the 1882 Reservation outside of District
Six became known as the ``Joint Use Area'' (JUA). In the years
after the Healing v. Jones case, the Hopi Tribe sought to
obtain joint and equal use of the JUA through administrative
action and through litigation. some of these cases include
Hamilton v. Nakai,\4\ where the Hopi Tribe sought a Federal
court order compelling the Navajo Nation to reduce its
livestock on the JUA in order to allow Hopi access to the JUA
and to prevent further injury to the lands due to overgrazing;
United States v. Kabinto,\5\ where the United States brought
suit against sixteen Navajos in order to evict them from
District Six, where they were residing; and Hamilton v.
MacDonald,\6\ where the Hopi Tribe petitioned the Court for a
writ of compliance to compel the Navajo Nation to jointly share
with the Hopi Tribe the surface and subsurface interests of the
areas of the 1882 Reservation outside of District Six.
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\3\ 210 F. Supp. 125 (D. Az. 1962), aff'd 373 U.S. 758 (1963).
\4\ 453 F.2d. 152 (9th Cir. 1971).
\5\ 456 F.2d. 1087 (9th Cir. 1972).
\6\ 503 F.2d. 1138 (9th Cir. 1974).
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In testimony before the Committee presented on March 28,
1996, Assistant U.S. Attorney General Lois J. Schiffer
described the long and protracted litigation that the
establishment of the 1882 and 1934 Reservations has engendered:

``This controversy has generated more than 35 years
of continuous legal battles involving the Tribes and
the United States. The following, while not exhaustive,
lists litigation spawned by disputes over the 1882
Reservation since 1958: Peabody Coal Company v. Navajo
Nation, 75 F.3d 457 (9th Cir. 1996); Hopi Tribe v.
Navajo Tribe, 46 F.3d 908 (9th Cir. 1995) (BIA's
homesite and grazing rental determinations); Attakai v.
United States, 21 F.3d 1111 (9th Cir. 1994); Masayesva
v. Zah, 816 F. Supp. 1387 (D. Ariz. 1992); Benally v.
Hodel, 940 F.2d 1994 (9th Cir. 1991); Manygoats v.
Office of Navajo and Hopi Indian Relocation, 735 F.
Supp. 949 (D. Ariz. 1990); Bedoni v. Navajo-Hopi
Relocation Commission, 878 F.2d 1119 (9th Cir. 1989);
Begay v. United States, 865 F.2d 230 (Fed. Cir. 1989);
Manybeads v. United States, 730 F. Supp. 1515 (D. Ariz.
1989), 9th Cir. No. 90-15003 (appeal pending) (First
Amendment suit by Navajo residents of HPL challenging
the relocation requirement as unconstitutional);
Masayesva v. Zah, No. 58-579 PCT ECH (D. Ariz. 1993),
9th Cir. No. 90-15304 (appeal pending) (contempt action
for illegal construction by Navajo residents); Secakuku
v. Hale, No. 76-934 (D. Ariz. 1993), 9th Cir. Nos. 94-
17032, 95-15029 (damages to HPL range from overgrazing
by Navajo livestock prior to partitioning); Masayesva
v. Hale, No. 76-936 PCT ECH (D. Ariz. 1993), 9th Cir.
No. 94-17022 (appeal pending) (damages for use of Hopi
Tribe's share of the Joint Use Area by Navajo livestock
from 1962-1979); Secakuku v. Hale, No. 58-579 (D. Ariz.
1993), 9th Cir. Nos. 94-17031, 95-15015, (appeal
pending) (owelty for difference in value of the divided
Joint Use Area); Hopi Tribe v. Navajo Nation, Nos. 85-
801 PHX and 87-1966 PHX (D. Ariz.) (ongoing challenges
to various annual BIA rental determinations); Hopi
Tribe v. United States, Nos. 319-84-L, 320-84-L, 321-
84-L, 651-89L (Ct. Fed. Cl., pending) (penalties and
damages for unpermitted Navajo livestock use of the
HPL); Zee v. Watt, Civ. 83-200 PCT EHC (D. Ariz.)
(dismissed March 29, 1985); Walker v. Navajo-Hopi
Indian Relocation Commission, 728 F.2d 1276 (9th Cir.
1984), cert. denied, 469 U.S. 918 (1984); Hopi v. Watt,
719 F.2d 314 (9th Cir. 1983); Sidney v. Zah, 718 F.2d
1453 (9th Cir. 1983); Zah v. Clark, Civ. No. 83-1753 BB
(D. N.M., filed Nov. 27, 1983); Sekaquaptewa v.
MacDonald, 626 F.2d 113 (9th Cir. 1980); Sekaquaptewa
v. MacDonald, 619 F.2d 801 (9th Cir.), cert. denied,
449 U.S. 1010 (1980); Sekaquaptewa v. MacDonald, 591
F.2d 1289 (9th Cir. 1979); Sekaquaptewa v. MacDonald,
575 F.2d 239 (9th Cir. 1978); Sekaquaptewa v.
MacDonald, 544 F.2d 396 (9th Cir. 1976), cert. denied,
430 U.S. 931 (1977); Hamilton v. MacDonald, 503 F.2d
1138 (9th Cir. 1974); United States v. Kabinto, 456
F.2d 1087 (9th Cir.), cert. denied, 409 U.S. 842
(1972); Hamilton v. Nakai, 453 F.2d 152 (9th Cir.),
cert. denied, 406 U.S. 945 (1972); Sidney v. Navajo
Tribe, Nos. 76-934, 935, 936 PHX EHC (D. Ariz., filed
Dec. 15, 1976); Healing v. Jones (II), 210 F. Supp. 125
(D. Ariz. 1962), aff'd, 373 U.S. 758 (1963); Healing v.
Jones (I), 174 F. Supp. 211 (D. Ariz. 1959), aff'd, 373
U.S. 758 (1963).'' \7\
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\7\ Statement of the Honorable Lois J. Schiffer, Assistant Attorney
General, U.S. Department of Justice, March 28, 1996 Hearing of the
Senate Committee on Indian Affairs, page 6.
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the navajo and hopi indian land settlement act of 1974

As a result of the growing litigation between the Hopi
Tribe and the Navajo Nation concerning the 1882 Reservation,
the Congress enacted the Navajo and Hopi Indian Land Settlement
Act of 1974,\8\ to promote a comprehensive settlement of the
land dispute between the Navajo and Hopi Tribes regarding the
1882 Reservation and the 1934 Reservation. The 1974 Act
provided for the establishment of Navajo and Hopi negotiating
teams under the auspices of a Federal mediator to negotiate a
settlement to the 1882 reservation land dispute. The timeframe
for the mediation process was six months from the date of
enactment. In the event that the mediation was unsuccessful,
the Act authorized the court to partition the 1882 Reservation
pursuant to the mediator's recommendations.
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\8\ P.L. 93-531, 25 U.S.C. Sec. Sec. 640d.
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In addition, the 1974 Act authorized both the Navajo Nation
and the Hopi Tribe to file suit in the Federal District Court
for the District of Arizona to quiet title in the 1934
Reservation. Both tribes were authorized to file suit against
each other and against the United States for any damages
arising out of the land dispute. It also provided for the
establishment of a three member Relocation Commission within
the Department of the Interior to oversee the relocation of
members of the Navajo Nation who were residing on lands
partitioned to the Hopi Tribe and members of the Hopi Tribe who
were residing on lands partitioned to the Navajo Nation.
Finally, the Act authorized the purchase of 250,000 acres of
Bureau of Land Management lands by the Navajo Nation for the
resettlement of relocated Navajo families.
The relocation program established in the 1974 Act has
proven to be an extremely difficult and contentious process.
The 1974 Act was amended in 1980 and again in 1987 to try to
resolve problems which arose in its implementation. Last year,
the Congress enacted Public Law 104-15, which provided for a
brief two-year extension (through fiscal year 1977) of
authority to the Office of Navajo and Hopi Indian Relocation.
The original estimate of the cost of the relocation program was
roughly $40 million to provide relocation benefits for 6,000
Navajos estimated to be eligible for relocation. By 1977, when
the tribal negotiations under the 1974 Act had failed, the
mediator now estimated that the resulting partition of the 1882
Reservation would result in the relocation of about 3,495
Navajos. Since the program was established in 1974, the United
States has spent more than $330 million to relocate a total of
more than 11,000 Navajo and Hopi tribal members.

Status of relocation

As of July of 1996, 4,432 Navajo an Hopi families have
applied for relocation benefits. Of those, 3,373 have been
certified eligible and 2,730 have received relocation benefits.
Approximately 643 eligible families continue to wait for
relocation benefits. Many of those Navajo families waiting for
benefits have long ago complied with the law and voluntarily
left the homes they had on lands partitioned to the Hopi Tribe.
The pace of the relocation housing program has been such that
on average, fewer than 200 eligible families are served in any
fiscal year. For example, thus far in fiscal year 1996, 98
families have received their relocation benefits. In addition
to those eligible families awaiting relocation benefits, there
are estimated to be between 50 and 100 Navajo families residing
on lands partitioned to the Hopi Tribe who have never applied
for relocation benefits under the law.

Recent settlement and accommodation agreements

Since May of 1991, the United States Court of Appeals for
the Ninth Circuit has ordered ongoing, court-sponsored
mediation efforts between the Hopi Tribe, the Navajo Nation,
the Navajo family representatives, and others in an effort to
resolve certain legal claims pending in the 9th Circuit. On
December 14, 1995, a Settlement Agreement was signed by the
Department of Justice and the Hopi Tribe which resolved several
lawsuits and pending claims between the United States of
America and the Hopi Tribe. A few weeks later, as part of the
court-sponsored mediation efforts, an Accommodation Agreement
was developed with the agreement of the Hopi Tribe, the Navajo
Nation, the Navajo Family Mediation Team, and the United
States.

December 14, 1995 Settlement Agreement

The Settlement Agreement finally settles four claims by the
Hopi Tribe against the United States. The first claim resolved
by the agreement (``the rental case'') involves all Hopi damage
claims against the United States for an alleged failure of the
Federal government to make timely rental value determinations
required under 25 U.S.C. 640d-15(a). This case Hopi Tribe v.
Navajo Tribe, et al., has been pending in the U.S. District
Court in Phoenix, Arizona. The second claim resolved by the
agreement (``the damage case'') involves all Hopi damage claims
against the United States for an alleged Federal liability,
joint and several with the Navajo Nation, for post-partition
damage to the Hopi partitioned lands caused by pre-partition
overgrazing. This case, Secakuku v. Hale, et al., has been
pending in the United States Court of Appeals for the Ninth
Circuit. The third claim resolved by the agreement (``the
claims cases'') involves all Hopi damage claims against the
United States for an alleged failure on the part of the Federal
government to collect livestock trespass penalties, forage
consumed fees, and property damage fees on behalf of the Hopi
Tribe. This case, Hopi Tribe v. United States, has been pending
in the United States Court of Federal Claims. The fourth claim
resolved by the agreement (``the quiet possession claim'')
involves all Hopi damage and injunctive claims against the
United States for an alleged failure of the Federal government
to give the Hope Tribe quiet possession of Hope lands that are
used and occupied by Navajo families. The Hopi Tribe has
withheld from filing any of these claims during the course the
5-year, court-sponsored mediation efforts.
In exchange for the Hopi Tribe compromising its rental,
damage and claims cases against the United States, for
foregoing its quite possession claim, and for providing an
accommodation agreement for the Navajo families currently
residing on Hopi Partitioned Lands, the United States agreed to
pay the Hopi Tribe $50.2 million under a structured settlement
schedule which is keyed to the performance of certain
activities under the Settlement Agreement.
The Settlement Agreement provides that funds shall be paid
out in the following manner: (1) The Hopi Tribe will receive
$2.4 million once the Tribe files a motion to dismiss its
appeal in the Ninth Circuit in Secakuku v. Hale; (2) the Hopi
Tribe will receive $22.7 million once legislation extending the
Tribe's leasing authority to 75 years has been enacted and once
the Tribe's claims in the Court of Claims for damages due to
any Federal action which occurred before 1982 are dismissed;
(3) the Hopi Tribe will receive $10 million once 65% of the
Navajo families residing on the Hopi reservation have signed
the Accommodation Agreement or request to be relocated and once
the Hopi Tribe's claims in the Court of Claims for livestock
trespass damages against the U.S. from 1983 through 1988 are
dismissed; (4) the Hopi Tribe will receive $15.1 million once
75% of the Navajo families residing on the Hopi reservation
have signed the Accommodation Agreements or request to be
relocated and once the Hopi Tribe's claims in the Court of
Federal Claims for livestock trespass damages against the U.S.
from 1989 through and including 1996 are dismissed. The
Agreement between the U.S. and the Hopi Tribe expressly
provides that none of the releases provided in the agreement
are intended to release the Navajo Nation from any liability it
might have to the Hopi Tribe.
The Hopi Tribe may, in its discretion, use these settlement
funds to purchase land in northern Arizona that is used
substantially for ranching, agriculture, or other similar rural
uses, and to the extent feasible, is in contiguous parcels.
Should the Hopi Tribe choose to acquire such land, the
agreement contemplates that the Secretary of the Interior will
agree to accept into trust status under existing legal
authority no more than 500,000 acres of such land. Even if the
maximum acreage is brought into trust, the Committee has
received estimates from the State of Arizona that the annual
impact on local property tax collections would be de minimis.
Estimates of the property taxes which will be lost by all
affected county governments are approximately $14,200 annually
if the maximum of 500,000 acres of land are taken into trust
pursuant to the agreement. The settlement funds are to be paid,
as are most court-related settlements entered into by the
United States, from the Judgment Fund administered by the U.S.
Department of Justice and the General Accounting Office to
satisfy judgments against the United States which are approved
by the courts.

1996 Accommodation Agreement

The terms and conditions of an Accommodation Agreement for
individual Navajo families have been finalized by
representatives of the Hopi Tribe, the Navajo Nation, the
Navajo Families Mediation Team, and the United States. These
parties acknowledge that the Accommodation Agreement was
reached in large part because of the efforts of the court-
sponsored mediator, David Lombardi, who helped implement the
directive of the 9th Circuit Court of Appeals that the parties
reach by negotiation and voluntary agreement a final settlement
of issues raised by the presence of Navajo families on the Hopi
Partitioned Lands. The Accommodation Agreement is an integral
part of the obligations incurred by the United States and the
Hopi Tribe in the underlying Settlement Agreement.
During the calendar year 1996, the Accommodation Agreement
obligates the Hopi Tribe to offer a 75-year leasehold interest
to Navajo families currently residing in their existing
homesites on Hopi Partitioned Lands. The agreement extends
certain guarantees to Navajo families entering into these long-
term leases, clarifying procedures by which certain grazing,
firewood, structural, and religious exercise activities will be
allowed.
The Hopi Tribe, like most other Indian tribes, has general
authority under 25 U.S.C. 415(a) to lease land for a term of
not to exceed 25 years. The Federal statute grants specific
exceptions to this 25 year limit to more than three dozen
tribes, including the Navajo Nation but not the Hopi Tribe. The
exceptions permit these Tribes to lease their land for terms of
up to 99 years for public, religious, educational,
recreational, residential, or business purposes.

s. 1973, the navajo-hopi land dispute settlement act of 1996

On July 18, 1996, Chairman McCain introduced S. 1973, to
ratify the Settlement and Accommodation Agreements between the
Hopi Tribe, the U.S. Department of Justice, and the Navajo
families residing on the Hopi Partitioned Lands. Consistent
with section 7(a) of the Settlement Agreement, the bill as
introduced authorizes the Hopi Tribe to select certain
agricultural and range lands in northern Arizona to be brought
into trust by the Secretary of the Interior. Under the terms of
the Settlement Agreement, the Hopi Tribe must pay fair market
value to willing sellers for such lands. Prior to placing any
land into trust for the benefit of the Hopi Tribe, the
Secretary is required to ensure that at least 75 percent of the
eligible Navajo families have entered into accommodation leases
with the Hopi Tribe or have elected to receive their relocation
benefits. In addition, the bill requires the Secretary to
ensure that the Hopi Tribe has consulted with the State of
Arizona concerning the impacts on the State and local
governments of placing such land into trust prior to placing
any land into trust for the Hopi Tribe pursuant to the
Settlement Agreement.
Consistent with section 7(b) of the Settlement Agreement,
the bill authorizes the Secretary of the Interior to acquire
through condemnation interspersed State lands and place such
lands into trust for the benefit of the Hopi Tribe. The bill
requires several conditions to be met prior to placing such
State lands in trust: (1) the acquisition must not exceed the
500,000 acre limitation in the Settlement Agreement, (2) the
State of Arizona must concur with the selection of lands, and
(3) the Hopi Tribe must pay fair market value of the State
lands. The bill prohibits the Secretary from acquiring private
lands through condemnation. Consistent with the terms of the
Settlement Agreement, the bill also recognizes the right of the
Hopi Tribe to pursue an action for quiet possession, after
February 1, 2000, for Hopi Partitioned Lands occupied by
Navajos who have not entered into an accommodation lease if the
Federal government fails to discharge its obligations under
section 9(c) or 9(d) of the Settlement Agreement.
The bill also authorizes payments in lieu of taxes for
lands purchased by the Hopi Tribe which are taken into trust by
the Secretary of the Interior pursuant to the Settlement
Agreement. In addition, the bill provides the Hopi Tribe the
authority to enter into 75-year lease agreements with Navajo
families residing on the Hopi Partitioned Lands. Finally, the
bill reauthorizes the Navajo-Hopi Relocation Housing Program
through the year 2000 to carry out its responsibilities under
the Settlement Agreement.

Substitute Amendment

The Committee Substitute proposes three major changes to S.
1973 as introduced. First, the Committee Amendment modifies the
requirement that at least 75 percent of the eligible Navajo
families residing on the HPL agree to receive relocation
benefits or sign the accommodation agreement before any land
can be taken into trust for the Hopi Tribe under the Act by
increasing the requirement to 85 percent of the eligible
families. The Committee recognizes that this requirement is
higher than the percentage agreed to by the parties to the
Settlement Agreement. The Committee adopted a higher percentage
in the hope of achieving a greater degree of finality by this
legislation. The Committee Amendment provides that the
Secretary may not to place lands in trust for the Hopi Tribe,
pursuant to the Settlement Agreement, until no more than 15
percent of the eligible Navajo heads of households (as
determined by the Settlement Agreement) are remaining on the
HPL and subject to forced eviction. To the extent that 15
percent or fewer of the eligible Navajo heads of household are
on the HPL in trespass for failure to enter into an
Accommodation Agreement, the conditions set out in Section 5
are met.
The second major change amends section 5 by adding a new
paragraph (3) that would prohibit the Secretary of the Interior
from placing land, located within or contiguous to a 5-mile
radius of an incorporated town, into trust for the benefit of
the Hopi Tribe without specific statutory authority. The
Committee adopted this language in response to concerns raised
by the State of Arizona and certain communities in northern
Arizona regarding the impact of placing lands into trust within
close proximity to incorporated towns. In responding to
concerns raised by these potentially impacted communities, the
Committee Amendment ensures that lands acquired by the Hopi
Tribe and taken into trust by the Secretary are rural in
character and are lands that have been used substantially for
ranching or agriculture. In addition, the Committee Admendment
requires the Secretary to ensure that the Hopi Tribe has
consulted with the State of Arizona regarding the lands to be
placed in trust and the potential impacts on the State and
local tax rolls. Such consultation shall be conducted
consistent with the provisions of 25 C.F.R. part 151. The
Committee recognizes the potential for a significant amount of
land in northern Arizona to be placed in trust for the Hopi
Tribe, up to 500,000 acres, and therefore has included language
in the Amendment that will ensure that the potential impacts
will be addressed through consultations with the State and
local communities and through provisions limiting the selection
of lands to rural and agricultural lands. Under the terms of
the Settlement Agreement, the Hopi Tribe may use the settlement
funds for many other purposes such as school construction,
infrastructure development, or governmental programs rather
than the acquisition of agriculture lands. However, if the Hopi
Tribe so elects, they may use the settlement funds to acquire
agricultural lands in Northern Arizona, subject to the
conditions of the Act and the Settlement Agreement.
The Settlement Agreement and section 6 of the Committee
Amendment authorize the Secretary of the Interior to acquire
through condemnation interspersed State lands that may be
located with the exterior boundaries of private lands acquired
by the Hopi Tribe. In order to acquire such lands the Hopi
Tribe must seek the concurrence of the State of Arizona and pay
fair market value to the State for such lands. The Secretary of
the Interior shall take such State lands into trust for the
Hopi Tribe. The Committee Amendment prohibits the Secretary
from acquiring any private lands through condemnation. In
carrying out the provisions of section 5 and 6 of the Committee
Amendment, it is clear that the Hopi Tribe will have to work
cooperatively, in close consultation with State of Arizona,
regarding the acquisition of lands within northern Arizona and
the placement of such lands into trust. The Committee
recognizes that in that part of the State the lands are highly
checker-boarded with private and State lands interspersed
throughout and has therefore authorized the Secretary to work
with the Hopi Tribe and the State to identify lands to be
placed into trust for the Hopi Tribe. Because these
acquisitions may involve a substantial amount of State lands,
there could be a significant impact on the State of Arizona.
For that reason, the Committee Amendment deletes section 8 of
the bill as introduced and inserts a new provision that would
authorize to be appropriated to the Department of Interior
$250,000 for fiscal year 1998 to be paid to the State of
Arizona after the initial acquisition of interspersed State
lands under section 6 of the bill. The Committee based this
figure on a base amount that could capitalize a fund to
compensate the State for the loss of interspersed State lands
and any potential revenues the State may derive from such
lands.
Finally, the Committee Amendment reauthorizes the Navajo-
Hopi Relocation Housing Program through the year 2000. This
reauthorization will allow the Navajo-Hopi Relocation Housing
Program to meet its obligations under the Settlement Agreement
in order to provide relocation benefits to Navajo families who
elect to relocate from the HPL rather than sign the
Accommodation Agreement. The Settlement Agreement also gives
Navajo families a three year period to reconsider their
decision to sign the Accommodation Agreement and still be
eligible to elect to receive relocation benefits. It is the
Committee's intent to develop legislation to phase out the
Office of Navajo-Hopi Relocation and bring the relocation
process to an orderly and certain conclusion.

Domenici Amendment

The Committee adopted an amendment offered by Senator
Domenici which would amend section 9 of the Committee
Substitute. This amendment clarifies that the 75 year lease
authority provided to the Hopi Tribe under the legislation
includes the authority to renew these lease agreements for an
additional term of 75 years. The Committee has long-viewed the
express limitations on Indian tribal governments entering into
lease agreements under 25 U.S.C. Sec. 415 as antiquated and
paternalistic. This limitation serves as an unnecessary barrier
to tribal self-determination and true self-governance. The
existence of express renewal authority in subsection 415(c)
should not be read to imply that Indian tribal governments do
not have renewal authority under subsection 415(a). The
Committee has long-recognized the authority of Indian tribal
governments to renew lease agreements under the authority of
subsection 415(a). The purpose of the language in the Committee
Amendment is simply to make clear to the parties that the Hopi
Tribe possesses the authority to enter into subsequent 75 year
lease agreements.

Other Considerations

There has been some question raised regarding the
ratification provisions under section 4 of the bill and whether
these provisions extend to the Accommodation Agreement. The
Committee intends that this section effects not only an express
ratification of the terms and conditions of the Settlement
Agreement but also includes and express ratification of the
terms and conditions of the Accommodation Agreement between the
Hopi Tribe, the Navajo Families, the Department of Justice and
the Navajo Nation. It is the Committee's view that because the
Settlement Agreement incorporates the terms of the
Accommodation Agreement both agreements are in fact ratified by
the legislation. Further, the approval, ratification, and
confirmation of the Settlement Agreement is not intended in any
way to affect the state of existing law concerning offset of
claims between the Navajo Nation and the Hopi Tribe or other
issues regarding the effect of the Settlement Agreement on
lawsuits between the Navajo Nation and the Hopi Tribe. The
Committee intends that nothing in this Act shall be interpreted
or deemed to preclude, limit or endorse in any manner, an
action by the Navajo Nation that seeks in court an offset from
judgments for payments received by the Hopi Tribe under the
Settlement Agreement. Further, by ratifying the Settlement
Agreement, the Committee intends to take no position on issues
relating to cases pending in the Federal courts between the
Navajo Nation, the Hopi Tribe, or the United States. The
Committee believes that such issues are best resolved in the
Courts and are not part of this legislation.
The Committee recognizes that an area of particular concern
to the Navajo families residing on the HPL is the protection of
certain religious sites within the HPL and the ability to
continue their traditional religious practices. The
Accommodation Agreement, which is ratified by this legislation,
represents a good faith agreement between the Hopi Tribe and
representatives chosen by the Navajo families residing on the
HPL to provide for an accommodation of the Navajo families
residing on the HPL. It reflects the respect that members of
the Hopi Tribe and the Navajo Nation have for each other and
the acknowledgment by each party of the sincerity of their
respective traditional beliefs, the importance of those
beliefs, and the desire of both parties to preserve their
respective cultures and ways of life in the future. The United
States specifically acknowledges the sincerity and importance
of the religious beliefs of members of both tribes and the
significance of the Navajo and Hopi religions. In order to
provide protection for the traditional religious practices of
the Navajo families, the Accommodation agreement specifically
provides that a Navajo individual who has signed a 75 year
lease agreement with the Hopi Tribe shall be entitled to
continue their traditional land uses and their religious
practices including the collection of herbs for personal use or
traditional use, access to religious shrines, the construction
of temporary structures, and the gathering of dead wood for
fire. These traditional uses shall be conducted consistent with
the Hopi Tribe's ordinances and permit systems which apply to
Hopi Tribal members and to the Navajo families residing on the
HPL and are designed to protect the land and its resources.
The Committee remains concerned that the existing fences on
and around Star Mountain on the HPL interfere with the ability
of Navajo HPL residents to worship at certain sacred sites and
shrines. There are several fence lines that run directly
through certain sacred areas which prevent Navajo individuals
from worshiping at such sites and have resulted in the
desecration of one site. The Committee is aware of cooperative
efforts between the Hopi Tribe, the Navajo Nation, and the
Navajo residents of the HPL to identify such sacred sites and
to realign the range management fences so as not to disturb or
desecrate such sacred sites. The Committee urges the Hopi Tribe
and the Bureau of Indian Affairs to directly consult with the
affected Navajo residents to develop a plan to realign the
fences and redesign the range units in question so as to
protect the sacred sites around Star Mountain and not to
interfere with Navajo religious practices. The Committee
recognizes that such realignment is an important indication of
good faith which is key to encouraging Navajo families on the
HPL to sign the Accommodation Agreement.
Another issue of great importance to Navajo families
residing on the HPL is the right to bury deceased family
members on or near the family homesite within the HPL. The
current Accommodation Agreement does not afford Navajos signing
the lease agreement the right to bury deceased relatives on the
HPL. The Committee recognizes that this issue gives rise to
great passion and it is critical to the continued viability of
this settlement that the parties reach some resolution to this
issue. The Committee urges the parties to continue their
negotiations to develop an appropriate resolution to this
issue. The Committee recognizes that the establishment of
family or individual burial plots on the HPL will continue the
traditional practices of the residents and is a key to
encouraging Navajo families to sign the Accommodation
Agreement.
The Committee recognizes that there remain many issues
which will require ongoing negotiation and cooperation between
the Hopi Tribe and the Navajo residents of the HPL. The
Accommodation Agreement presents a framework for ongoing
cooperation and consultation between the Hopi Tribe and the
Navajo HPL residents, wherein the Hopi Tribe has agreed to work
with the Navajo families to identify and protect existing
sacred sites, burial sites, and other similar places to either
the Navajo or Hopi Tribes. The Agreement also provides that in
implementing the Hopi Tribe's Comprehensive Land Use Plan, the
Hopi Tribe will consider any maps and other written input
submitted by the Navajo families. Under the Agreement, both the
Hopi Tribe and the United States agree to provide notice of
proposed government fencing and construction projects on the
HPL and to comply with Section 106 of the National Historic
Preservation Act. The notice which the Hopi Tribe and the
United States will provide to the Navajo families, through
their legal representative, will continue to be the 30 day
written notice that has been previously provided pursuant to
the decision in Attakai v. United States, 746 F. Supp. 1395 (D.
Ariz. 1990).
In the Accommodation Agreement the parties have also agreed
to procedures under which disputes between the Navajo residents
of the HPL and the Hopi Tribe can be resolved. The Agreement
provides that the Hopi Tribe agrees to meet with the affected
individuals to discuss the concerns that gave rise to the
dispute prior to the commencement of any formal proceeding.
This dispute resolution process includes, at a minimum,
providing notice of the dispute and an opportunity to be heard
prior to the initiation of any formal proceeding. Finally, the
Agreement recognizes that both the Navajo residents and the
Hopi Tribe are committed to improving relations on the HPL,
improving communications between the parties, and developing a
better understanding of their mutual concerns and interests.
Further, the parties agree to continue their efforts to improve
communications and understandings through the development of an
informal alternative dispute resolution process during the one
year period that eligible Navajo residents will have to sign
the Accommodation Agreement.

Legislative History

S. 1973 was introduced by Senator McCain on July 18, 1996,
and was referred to the Committee on Indian Affairs. There was
a committee hearing on the Settlement Agreement on March 28,
1996.

Committee Recommendation and Tabulation of Vote

In an open business session on July 30, 1996, the Committee
on Indian Affairs ordered the bill reported with amendments,
with the recommendation that the Senate pass the bill as
reported.

Section-by-Section Analysis

Section 1--Short title

This section cites the short title of the Act as the
``Navajo-Hopi Land Dispute Settlement Act of 1996''.

Section 2--Findings

This section sets out the findings of the Congress.

Section 3--Definitions

This section sets out the definitions used in the Act.

Section 4--Ratification of the Settlement Agreement

This section provides that the United States approves,
ratifies and confirms the Settlement Agreement between the Hopi
Tribe and the United States executed on December 14, 1995.

Section 5--Conditions for lands taken into trust

This section provides that, in accordance with section 7(a)
of the Settlement Agreement lands which may be taken into trust
by the Secretary of the Interior for the Hopi Tribe shall be
located in northern Arizona. It provides that lands selected by
the Hopi Tribe shall be in contiguous parcels if feasible and
shall be lands that were substantially used for ranching and
agriculture. It further provides that the Secretary shall
ensure that at least 85 percent of the heads of households, as
determined by the Settlement Agreement, have entered into an
accommodation agreement with the Hopi Tribe or have chosen to
receive their relocation benefits, prior to placing land into
trust for the Hopi Tribe pursuant to this settlement. The
Secretary must also ensure that the Hopi Tribe has consulted
with the State of Arizona regarding the lands to be placed in
trust consistent with 25 C.F.R. part 151. Finally, the section
prohibits the Secretary of the Interior from placing lands, any
portion of which is located within or contiguous to a 5 mile
radius of an incorporated town, into trust for the benefit of
the Hopi Tribe without specific statutory authority.

Section 6--Acquisition by condemnation of certain interspersed lands

This section authorizes the Secretary of the Interior, at
the request of the Hopi Tribe, to take such action as is
necessary to acquire, through condemnation action, lands owned
by the State of Arizona that are located within the exterior
boundaries of lands owned by the Hopi Tribe. It also provides
that the Secretary shall pay the State of Arizona, using funds
provided by the Hopi Tribe, fair market value for such lands.
It further provides that the Secretary may only acquire such
lands if the State of Arizona concurs with the acquisition, the
tribe pays for the lands acquired through the condemnation, and
the Hopi Tribe has not exceeded the 500,000 acre limit in the
settlement agreement. The section provides that the Secretary
shall take lands acquired under the section into trust for the
benefit of the Hopi Tribe in accordance with the Settlement
Agreement.

Section 7--Action to quiet possession

This section provides that if the United States fails to
discharge its obligations under section 9 of the settlement
agreement, the Hopi Tribe is authorized to bring an action of
quiet possession against the United States relating to the use
of the Hopi Partitioned Land by a Navajo family after February
1, 2000 that has not entered into an accommodation agreement
with the Hopi Tribe.

Section 8--Payment to the State of Arizona

This section authorizes to be appropriated $250,000 for
fiscal year 1998 to be paid to the State of Arizona. The
Secretary of the Interior shall make payment after the
acquisition of interspersed state lands authorized under
section 6 of the bill.

Section 9--75 year leasing authority

This section amends 25 U.S.C. 415 to provide authority to
the Hopi Tribe to enter into 75 years leases with Navajo
Indians residing on the Hopi Partitioned Lands, which can be
extended at the conclusion of the term of the lease.

Section 10--Reauthorization of the Navajo-Hopi Relocation Housing
Program

This section extends the authorization of appropriations
for the Navajo-Hopi Relocation Housing Program through the year
2000.

Cost and Budgetary Considerations

The cost estimate for S. 1973, as calculated by the
Congressional Budget Office is set forth below:

U.S. Congress,
Congressional Budget Office,
Washington, DC, September 6, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1973, the Navajo-
Hopi Land Dispute Settlement Act of 1996.
Enacting S. 1973 would affect direct spending. Therefore,
pay-as-you-go procedures would apply to the bill.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
James L. Blum
(For June E. O'Neill, Director).

congressional budget office cost estimate

1. Bill number: S. 1973.
2. Bill title: Navajo-Hopi Land Dispute Settlement Act of
1996.
3. Bill status: As ordered reported by the Senate Committee
on Indian Affairs on July 30, 1996.
4. Bill purpose: S. 1973 would ratify the Settlement
Agreement executed on December 14, 1995, between the Navajo and
Hopi Tribes of Arizona and would implement that agreement by
providing the Hopis with the authority to lease certain lands
to Navajo Indians for a term of 75 years. The Settlement
Agreement provides for payments totaling $50.2 million to the
Hopi Tribe to settle claims against the United States, and
provides for either the relocation of certain Navajos or
accommodation agreements with eligible Navajo families. The
first payment of $2.4 million has already been made. Subsequent
payments under the settlement are contingent upon the Hopi
Tribe obtaining authority from the Congress to lease certain
lands for 75 years, as provided in this bill.
S. 1973 would identify conditions for the transfer of lands
into trust for the Hopi Tribe by the Secretary of the Interior.
It would authorize appropriations for a payment of $250,000 to
the State of Arizona. Finally, the bill would extend the
authorization of appropriations for the Navajo-Hopi Relocation
Housing Program.
5. Estimated cost to the Federal Government: CBO estimates
that S. 1973 would increase discretionary spending by about $90
million over the 1998-2001 period, assuming the appropriation
of amounts specified in the bill for the Navajo-Hopi Relocation
Housing Program and the authorized payment to the State of
Arizona.
In addition, we estimate that the bill would increase
direct spending in fiscal year 1997 by granting 75-year leasing
authority to the Hopi Tribe, thereby triggering payments to the
tribe totaling $48 million. The $48 million in direct spending
would most likely be offset by savings of future payments that
might otherwise be made in the absence of S. 1973, but we
cannot estimate the amount or timing of such payments.

[By fiscal year, in millions of dollars]

-------------------------------------------------------------------------------
---------------------------------
1996 1997 1998
1999 2000 2001 2002
-------------------------------------------------------------------------------
---------------------------------
SPENDING SUBJECT TO APPROPRIATION

Spending under current law:

Authorization level ^{1........................ 12 30 .....
.. ....... ....... ....... .......
Estimated outlays............................ 15 24 10 .
...... ....... ....... .......
Proposed changes:

Authorization level.......................... ....... ....... 30
30 30 ....... .......
Estimated outlays............................ ....... ....... 20
30 30 10 .......
Spending under S. 1973:

Authorization level ^{1........................ 12 30
30 30 30 ....... .......
Estimated outlays............................ 15 24 30
30 30 10 .......

CHANGES IN DIRECT SPENDING

Estimated budget authority....................... ....... (^{2) .^{...... .^{...... .^{...... .^{...... .^{......
Estimated outlays................................ ....... (^{2) .^{...... .^{...... .^{...... .^{...... .^{......
-------------------------------------------------------------------------------
---------------------------------
^{1 The 1996 level is the amount appropriated for that year.

^{2 The legislation would trigger $48 million in direct spending in fiscal y
ear 1997, but these outlays would
probably be offset by savings in subsequent years from savings of payments th
at would otherwise be made in the
absence of S. 1973 and the associated settlement. We cannot predict the amoun
t or timing of the payments that
would be required if S. 1973 is not enacted.

The costs of this bill fall within budget function 800.
6. Basis of estimate: For the purpose of this estimate, CBO
assumes that the legislation will be enacted by the beginning
of fiscal year 1997.
Spending Subject to Appropriation.--This estimate assumes
that the amounts authorized for the Navajo-Hopi Housing
Relocation Program will be appropriated by the beginning of
each fiscal year. Estimated outlays are based on the program's
historical spending rates.
Upon ratification of the Settlement Agreement, the Office
of Navajo-Hopi Relocation expects housing relocation costs to
be lower than the authorized level as some Navajos would choose
to stay on the Hopi land under an accommodation agreement and
thus forgo any relocation benefits. However, CBO cannot
estimate the amount of these potential savings because of
uncertainty as to how many Navajo families will remain on the
Hopi land under an accommodation agreement.
Direct Spending.--Under the Settlement Agreement, payments
totaling $48 million would occur only after the Congress grants
75-year leasing authority to the Hopi Tribe. The first payment
of $23 million would be made when the leasing authority is
obtained. The second and third payments totaling $25 million
would occur when certain percentages of Navajos (as specified
in the Settlement Agreement) have either relocated or entered
into an accommodation agreement with the Hopis that includes a
75-year lease term.
It is possible that the Settlement Agreement would allow
the United States to avoid potential future costs resulting
from claims brought against the United States by the Hopi and
Navajo Tribes. Enacting the legislation would settle claims
pending against the United States in the Federal Court of
Claims related to the matters in the Settlement Agreement. (The
potential liability of the United States under pending claims
totals about $280 million.) Therefore, the estimated $48
million in direct spending would probably be offset by savings
that would result from having these claims dismissed. Though
CBO cannot predict the outcome of court proceedings or future
negotiations that might occur if the claims are not dropped,
any further payments in the absence of enacting S. 1973 are
likely to occur after fiscal year 1997.
7. Pay-as-you-go-considerations: Section 252 of the
Balanced Budget and Emergency Deficit Control Act of 1985 sets
up pay-as-you-go procedures for legislation affecting direct
spending or receipts through 1998. CBO estimates that enacting
S. 1973 would affect direct spending as shown in the table
below.

[By fiscal year, in millions of dollars]

-------------------------------------------------------------------------------
---------------------------------
1996
1997 1998
-------------------------------------------------------------------------------
---------------------------------
Change in outlays............................................ 0
(\1\) 0
Change in receipts...........................................

(2) Not applicable

-------------------------------------------------------------------------------
---------------------------------
\1\The legislation would trigger $48 million in direct spending in fiscal year
1997, but these outlays would
probably be offset by savings in subsequent years from savings of payments th
at would otherwise be made in the
absence of S. 1973 and the associated settlement. We cannot predict the amoun
t or timing of the payments the
would be required if S. 1973 is not enacted.

8. Estimated impact on State, local, and tribal
governments: S. 1973 contains no intergovernmental mandates as
defined in the Unfunded Mandates Reform Act of 1995 (Public Law
104-4) and would impose no costs on state, local, or tribal
governments. Any costs resulting from the Settlement Agreement
approved and implemented by this bill would be incurred
voluntarily by the parties to that agreement.
This bill would authorize the Department of the Interior to
acquire Arizona state lands through condemnation, but only if
the tribe pays for the acquired land and the state concurs that
the acquisition is consistent with its interests. Further, the
bill would authorize appropriations of $250,000 for fiscal year
1998 for a payment to Arizona following such an acquisition.
9. Estimated impact on the private sector: The bill would
impose no new private-sector mandates as defined in Public Law
104-4, but it could have some effects on individual Navajo
families. If the United States fails to fulfill its obligations
in sections 9(c) and 9(d) of the Settlement Agreement, the Hopi
Tribe may bring an action to remove a Navajo family that is
eligible for an accommodation, but fails to enter into an
accommodation agreement and remains on Hopi Partitioned Lands
after February 1, 2000.
10. Previous CBO estimate: None.
11. Estimate prepared by: Federal cost estimate: Lisa
Daley; impact on State, local, and tribal governments: Majorie
Miller; impact on the private sector: Elliot Schwartz.
12. Estimate approved by: Paul N. Van de Water, Assistant
Director for Budget Analysis.

Regulatory Impact Statement

Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 1973 will
create minimal regulatory or paperwork impacts.

Executive Communications

The Committee received written testimony from the Honorable
Lois J. Schiffer, Assistant Attorney General, Environment and
Natural Resources Division, U.S. Department of Justice for the
hearing held on March 28, 1996. The written testimony from the
Department of Justice is as follows:

Testimony of Lois J. Schiffer

Mr. Chairman and Members of the Committee, my name is Lois
Schiffer. I am the Assistant Attorney General for the
Environment and Natural Resources Division of the Department of
Justice. I am pleased to appear before you on behalf of the
United States Government to testify about the recently
concluded Settlement between the United States and the Hopi
Tribe, and the Accommodation offer by the Hopi Tribe to the
Navajo families residing on lands partitioned to the Hopi.
These historic Agreements pave-the-way for a resolution of the
longstanding dispute over use of the 1882 Reservation lands.
The terms of the Accommodation Agreement really are the
heart of the great progress achieved. I commend the tremendous
achievement of the central parties to the Accommodation
Agreement negotiations for their patience, tenacity and
creativity in reaching a resolution. I thank the Committee for
holding this hearing to receive testimony about these historic
Agreements and to consider a legislative provision required to
implement this Settlement, and especially for holding it at
this early time. The enactment this year, and most preferably
before this summer, of legislation granting the Hopi Tribe 75-
year leasing authority is necessary to the success of this
Settlement. We will try to assist in whatever way possible to
provide information that may be helpful.
I especially would like to thank the Chairman for his
sustained efforts to resolve this dispute over many years.
Without his long and steadfast leadership regarding this
dispute, the recent achievements would not have been possible.
I also wish to thank Senator Kyl for his devotion of attention
to this matter. The Chairman and his staff and Senator Kyl and
his staff have provided their valuable insights and assistance
throughout our efforts to achieve a negotiated resolution.
A settlement of this magnitude has been possible only
because of the work of many people. I take this opportunity to
thank just a few others of these. I wish to thank Hopi Tribal
Chairman Ferrell Secakuku and Navajo Nation President Albert
Hale for their commitment to a resolution. I also wish to thank
the members of the Hopi Tribe's and Navajo Nation's negotiating
teams, the Council members of both Tribes and the attorneys
representing each of the Tribes in the negotiations. It has
been a long and difficult road, begun during the last
administration of each of the three governmental entities
(Federal, Hopi and Navajo) and continued, unhaltingly,
throughout the current administrations. I also wish to thank
Roger Attakai, President of the Dineh Dahyikah Ada Yaltii
Committee (Voice of Dineh Families), the other Navajo residents
of the Hopi Partitioned Lands who have dedicated so many hours
to negotiation of an issue so dear and so difficult to discuss,
and to their lawyer Lee Brooke Phillips.
I extend further thanks to Governor Symington and his
staff, to representatives from the County Board of Supervisors
for Coconino County, Navajo County and Apache County, to
officials from the City of Flagstaff and to members of the
citizen groups--all of whom have made important contributions
to this Settlement.
I also wish to thank the two mediators who have worked with
the parties, the Honorable United States Magistrate Judge Harry
R. McCue (retired) and David Lombardi, Chief of the Settlement
Program of the United States Court of Appeals for the Ninth
Circuit.
The Environmental and Natural Resources Division of the
Justice Department is responsible for litigation involving the
United States' responsibility for lands held in trust for
Indian Tribes. For that reason the Environment Division has
taken the lead role for the Justice Department in these
negotiations. Attorney General Janet Reno has taken a
particular interest in the issue and has offered her unflagging
support and guidance. In addition, we were fortunate to have
the assistance of other high level officials in the Department,
including Deputy Attorney General Jamie Gorelick, Associate
Attorney General John Schmidt and Assistant Attorney General
for Policy Development Eleanor Acheson. I also wish to commend
Deputy Assistant Attorney General Jim Simon, who has overseen
this matter within the Environment Division, Peter Steenland,
who initiated these efforts and carried the weight for the
Division from 1991-1993, and Katherine Hazard, who is currently
the lead federal negotiator. Many others in the Department have
made important contributions over the long course of the
litigation, including Environment Division attorneys Ellen
Durkee and Steve Carroll.
The Department of the Interior, as the agency with broad
responsibility for fulfilling the United States' trust
responsibility, has served with the Justice Department,
throughout the mediation, as part of the federal negotiating
team. I wish to thank those at Interior, and those in the
Office of Navajo Hopi Indian Relocation, who have provided
important historical perspective on the dispute, vital
technical information, and valuable insights--without which
fruitful negotiations would have been even more difficult.
The principal credit for making peace, as well as the major
responsibility for carrying out the Settlement, lies with the
Hopi Tribe, with the Navajo families who now reside on the Hopi
Partitioned Lands, and with the Navajo Nation, which has
assisted the families throughout the mediation. They also are
the ones who will benefit most from this advancement in their
ability to live together in harmony.
My testimony is directed primarily to the terms of the
Settlement Agreement between the Hopi Tribe and the United
States, not because this component is more significant than
others, but because it is the facet of the Settlement most
directly involving the federal agencies.

a. overview

For more than a century, members of the Hopi Tribe and the
Navajo Nation have disputed the use of certain lands in
northern Arizona. At root, the dispute involves competing
historical, religious and cultural ties to the same lands. In
some instances, the acrimony has led to threats and conflict,
leaving members of both tribes, and representatives of the
Bureau of Indian Affairs charged with enforcing grazing limits
on the Hopi lands, in fear of further hostilities. Several
thousand Navajo who formerly lived on lands partitioned to the
Hopi Tribe in 1979 moved, as required by the 1974 Settlement
Act. Several hundred members of the Navajo Nation, however,
have continued to reside at their homesites on the Hopi
Reservation, strenuously opposing relocation.
Absent of the recently achieved consensual resolution, the
Hopi Tribe is deprived of jurisdiction over and use of much of
its already small, ancestral Reservation lands; and
approximately 100 to 200 Navajo families, who reside on those
lands, live under the threat of forced removal from their
homesites. For approximately twenty-five years, these Navajo
residents have been without authorization to repair their
homes, many of which are in desperate need of maintenance and
weatherization. In seeking to litigate a resolution and to give
effect to the provisions of the 1974 Settlement Act, the
resources of both tribes have been drained--diverting scarce
funds from urgently needed educational, health and economic
development programs.\1\
---------------------------------------------------------------------------
\1\ This controversy has generated more than 35 years of continuous
legal battles involving the Tribes and the United States. The
following, while not exhaustive, lists litigation spawned by disputes
over the 1882 Reservation since 1958: Peabody Coal Company v. Navajo
Nation, 75 F.3d 457 (9th Cir. 1996); Hopi Tribe v. Navajo Tribe, 46
F.3d 908 (9th Cir. 1995) (BIA's homesite and grazing rental
determinations); Attakai v. United States, 21 F.3d 1111 (9th Cir.
1994); Masayesva v. Zah, 816 F.Supp. 1387 (D. Ariz. 1992); Benally v.
Hodel, 940 F.2d 1194 (9th Cir. 1991); Manygoats v. Office of Navajo and
Hopi Indian Relocation, 735 F.Supp. 949 (D. Ariz. 1990); Bedoni v.
Navajo-Hopi Relocation Commission, 878 F.2d 1119 (9th Cir. 1989); Begay
v. United States, 865 F.2d 230 (Fed. Cir. 1989); Manybeads v. United
States, 730 F.Supp. 1515 (D. Ariz. 1989), 9th Cir. No. 90-15003 (appeal
pending) (First Amendment suit by Navajo residents of HPL challenging
the relocation requirement as unconstitutional); Masayesva v. Zah, No.
58-579 PCT ECH (D. Ariz. 1993), 9th Cir. No. 90-15304 (appeal pending)
(contempt action for illegal construction by Navajo residents);
Secakuku v. Hale, No. 76-934 (D. Ariz. 1993), 9th Cir. Nos. 94-17032,
95-15029 (damages to HPL range from overgrazing by Navajo livestock
prior to partitioning); Masayesva v. Hale, No. 76-936 PCT ECH (D. Ariz.
1993), 9th Cir. No. 94-17022 (appeal pending) (damages for use of Hopi
Tribe's share of the Joint Use Area by Navajo livestock from 1962-
1979); Secakuku v. Hale, No. 58-579 (D. Ariz. 1993), 9th Cir. Nos. 94-
17031, 95-15015 (appeal pending) (owelty for difference in value of the
divided Joint Use Area); Hopi Tribe v. Navajo Nation, Nos. 85-801 PHX
and 87-1966 PHX (D. Ariz.) (ongoing challenges to various annual BIA
rental determinations); Hopi Tribe v. United States, Nos. 319-84-L,
320-84-L, 321-84-L, 651-89L (Ct. Fed. Cl., pending) (penalties and
damages for unpermitted Navajo livestock use of the HPL); Zee v. Watt,
Civ. 83-200 PCT EHC (D. Ariz.) (dismissed March 29, 1985); Walker v.
Navajo-Hopi Indian Relocation Commission, 728 F.2d 1276 (9th Cir.
1984), Cert. denied, 469 U.S. 918 (1984); Hopi v. Watt, 719 F.2d 314
(9th Cir. 1983); Sidney v. Zah, 718 F.2d 1453 (9th Cir. 1983); Zah v.
Clark, Civ. No. 83-1753 BB (D.N.M., filed Nov. 27, 1983); Sekaquaptewa
v. MacDonald, 626 F.2d 113 (9th Cir. 1980); Sekaquaptewa v. MacDonald,
619 F.2d 801 (9th Cir.), cert denied, 449 U.S. 1010 (1980);
Sekaquaptewa v. MacDonald, 591 F.2d 1289 (9th Cir. 1979); Sekaquaptewa
v. MacDonald, 575 F.2d 239 (9th Cir. 1978); Sekaquaptewa v. MacDonald,
544 F.2d 396 (9th Cir. 1976), cert. denied, 430 U.S. 931 (1977);
Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir. 1974); United States v.
Kabinto, 456 F.2d 1087 (9th Cir.), cert. denied, 409 U.S. 842 (1972);
Hamilton v. Nakai, 453 F.2d 152 (9th Cir.), cert. denied, 406 U.S. 945
(1972); Sidney v. Navajo Tribe, Nos. 76-934, 935, 936 PHX EHC (D.
Ariz., filed Dec. 15, 1976); Healing v. Jones (II), 210 F. Supp. 125
(D. Ariz. 1962), aff'd, 373 U.S. 758 (1963); Healing v. Jones (I), 174
F.Supp. 211 (D. Ariz. 1959), aff'd, 373 U.S. 758 (1963).
---------------------------------------------------------------------------
The centerpiece of the negotiations has been an effort to
resolve the on-the-ground situation for the Navajo families and
the Hopi Tribe regarding the use and occupation of the Hopi
Partitioned Lands, to address the Hopi Tribe's sovereignty
concerns and to accommodate the Navajo families' religious
claims concerning their need to stay. Now, after four and a
half years of mediation, the parties have reached agreement on
the terms of a settlement that would restore jurisdiction to
the Hopi Tribe and allow the approximately 100 to 200 Navajo
families to remain on Hopi land. This historic achievement
takes form in two Agreements: one between the Hopi Tribe and
the Navajo residents of the Hopi Reservation; the other between
the Hopi Tribe and the United States.
Under the first Agreement, called an Accommodation
Agreement, Navajo residents of the Hopi Partitioned Lands may
continue to live at their homesites on the Hopi Partitioned
Lands for 75 years, with the possibility of renewal. What
currently exists is an agreement on the terms of individual
Accommodation Agreements may be signed and become effective
after the Hopi Tribe receives 75-year leasing authority. The
individual Accommodation Agreements, when signed, will be
principally an agreement between the Navajo residents of a
homesite on the Hopi Reservation and the Hopi Tribe, although
the Navajo Nation also will indicate its support of the
Agreement and the document will be submitted for approval to
the Office of the Assistant Secretary of the Interior for
Indian Affairs or her designee.
The second Agreement is referred to as the Hopi Tribe-
United States Settlement Agreement. Under this Agreement the
Hopi Tribe promises to offer and abide by the terms of the
Accommodation Agreement and commits to abandon prosecution of
four lawsuits against the United States. In exchange for that
consideration, the United States will pay the Hopi Tribe $50.2
million and has committed to take up to 500,000 acres of land
into trust for the Hopi Tribe if certain conditions are met. In
order to give effect to these Agreements, we seek an expansion
of the Hopi Tribe's leasing authority so that it may offer the
Navajo families an accommodation for a 75-year-period.
Several lawsuits among the Navajo Nation, the Hopi Tribe
and the United States are not settled by either of these
Agreements. During the early years of these negotiations, the
parties strove for a settlement of those suits as part of a
global settlement. But resolution of those lawsuits, which
involve strictly money claims among the parties, was not
forthcoming, The delay presented by inability to reach
agreement on those issues was jeopardizing progress on the
central focus of these negotiations. The two Agreements that
are the focus of this Hearing resolve the central concern that
was the genesis of the mediation. Other ancillary litigation
need not impede the progress of these important achievements.
Before turning to the details of these Agreements, I would
like to place them in their historical context. This context is
necessary to appreciate the magnitude of what has been
accomplished by the parties before you.

b. prior efforts to resolve the dispute over rights to use of the hopi
partitioned lands

The dispute at issue dates back to 1882 when President
Arthur, be Executive Order, established a Reservation with the
Hopi villages at its center. Even at that time, there was
tension between Navajo and Hopi use of these lands in northern
Arizona. During the period from 1882 to 1958, twenty-one
Secretaries of the Interior failed to act on requests from the
Hopi Tribe to evict Navajo from the 1882 Reservation.
Since the 1950s, Congress, courts, and mediators have
struggled to find solutions to the Navajo Nation's and Hopi
Tribe's competing claims to lands within the 1882 Reservation.
In 1958, Congress sought a litigated resolution of the land
dispute by enacting a law authorizing the two Tribes to sue one
another. Soon thereafter, the Hopi Tribe sued the Navajo Nation
over ownership of the 1882 Reservation. In that lawsuit,
commonly known as Healing v. Jones, the district court
determined that the Navajo and Hopi had joint and undivided
interests in all but 631,194 acres of the original 2.5 million
acre 1882 reservation, an area thereafter referred to as the
``Joint Use Area.'' Healing v. Jones, 210 F. Supp. 125 (D.
Ariz. 1962), aff'd, 373 U.S. 758 (1963).
Creation of the Joint Use Area only fostered more
litigation as the Hopi Tribe repeatedly sought enforcement of
its rights to the area in the district court. In 1974, Congress
again addressed the problem with enactment of the ``Settlement
Act,'' which authorized and directed partitioning of the Joint
Use Area between the Navajo Nation and Hopi Tribe. Under the
Settlement Act, the two tribes were required to undertake a
six-month mediation effort designed to render an agreed upon
land partition. That mediation failed and, in 1975, the
partitioning was referred to the district court. The Joint Use
Area was finally partitioned in 1979, with the court allocating
approximately 900,000 acres known as the Hopi Partitioned Lands
to the Hopi Tribe and approximately 900,000 acres known as the
Navajo Partitioned Lands to the Navajo Nation.
Under the Settlement Act, members of each tribe are
required to move from the lands partitioned to the other tribe.
In drafting the 1974 Settlement Act, the House Committee on
Interior and Insular Affairs concluded that ``because of the
Federal Government's repeated failure to resolve the land
dispute, the major costs of resolution should be properly borne
by the United States.'' The Senate Report embraced a similar
conclusion. To that end, Congress created the Navajo and Hopi
Indian Relocation Commission (now, the Office of Navajo Hopi
Indian Relocation) to assist in the relocation process which
was to be completed by July 1986.
To date, the United States has spent more than $330 million
to relocate 2,700 households (more than 11,000 tribal members)
from lands determined in 1979 to belong to the other Tribe. All
of the few Hopi residing on the lands partitioned to the Navajo
Nation moved and several thousand Navajo residing on lands
partitioned to the Hopi Tribe moved in the years following the
1979 partitioning. By 1985, it was clear, however, that
voluntary relocation would not lead to the departure of all the
Navajo residents from lands partitioned to the Hopi Tribe by
the July 7, 1986 deadline.
As the Settlement Act's 1986 relocation deadline
approached, the specter of forced relocation of hundreds of
Navajo families residing on Hopi Partitioned Lands loomed
large. At this juncture, President Reagan personally met with
the Chairmen of the Hopi and Navajo Tribes to urge them to
negotiate a resolution of their differences, including their
disagreement over the fate of those Navajo families that had
not yet relocated. In February 1985, President Reagan took the
further step of commissioning Secretary of the Interior William
Clark to explore avenues for a consensual resolution of the
tribes' disagreements over implementation of the Settlement
Act. (Secretary Clark, in turn, appointed Robert Morris to the
task.)
In August 1985, Interior hosted a Washington meeting with
the Chairmen of the two tribes to determine the prospects for a
negotiated solution to the continued residence of Navajo
families on Hopi Partitioned Lands. Although progress was made,
and memoranda of understanding were discussed, no agreement was
achieved. The Morris Report--issued after eight months of on-
the-ground study and federally facilitated negotiations--
concluded with regret that the tribes were not politically able
to ``embrace negotiation as a means of solving their complex
differences.''
That year also marked the failure of a court-sponsored
mediation effort. In July 1985, federal district court Judge
Earl Carroll, the presiding judge in much of the litigation
between the tribes, hosted an informal meeting with the tribes
and President Reagan's appointed representative to the task. At
that meeting, Judge Carroll urged the tribes to embrace the
President's negotiation initiative and candidly set forth his
view that the lawsuits pending before him would take years to
conclude, cost millions of dollars, and lead to unsatisfactory
results for both tribes. Unfortunately, the tribes still were
unable to reach agreement.
The following year, three separate Congressional attempts
at addressing the problem of Navajo families who remained on
Hopi land were initiated. These legislative initiatives
included a bill by Congressmen Udall and then Congressman
McCain aimed at comprehensive settlement (H.R. 4281), a bill by
Senator Cranston that would have placed an 18 month moratorium
on further relocations (S. 2545) and a bill by Senator
DeConcini that would have provided for binding arbitration of a
land exchange (S. 2651). Each of these bills was strongly
opposed by one or both of the tribes and was withdrawn or
abandoned.
As the foregoing illustrates, the recent consensual
resolution comes out of a long history of unsuccessful efforts
to settle this age-old dispute.

c. the recent mediation effort

The mediation process that led to the two Agreements at
issue here arose out of a lawsuit known as Manybeads v. United
States. In 1988, the land dispute was again put before the
federal district court when Navajo residents of the Hopi
Partitioned Lands filed suit against the United States claiming
that the 1974 Settlement Act's relocation requirement violates
their First Amendment right to practice their religion and that
the Settlement Act, therefore, is unconstitutional and invalid.
In this lawsuit, Manybeads v. United States, the district court
ruled against the Navajo families and upheld the validity of
the 1974 Settlement Act. The Navajo families appealed that
determination to the United States Court of Appeals for the
Ninth Circuit. Following briefing and argument on the case, the
Appeals Court panel, in May 1991, ordered the parties into
mediation before United States Magistrate Judge Harry McCue.
Under the mediation order, the United States, the Navajo and
Hopi Tribes, and the Manybeads plaintiffs were to negotiate for
90 days. The Court has granted continuing requests by the
parties for extensions of the mediation process and a stay of
the Manybeads case and one other related lawsuit.\2\
---------------------------------------------------------------------------
\2\ The related case, Masayesva v. Zah, No 58-579 PCT ECH (D. Ariz.
1993), 9th Cir. No. 95-15304 (appeal pending), is an action by the Hopi
Tribe against the Navajo Nation. The Hopi Tribe sought a contempt fine
against the Navajo Nation and the removal of certain structures that it
claimed were erected in violation of a court-ordered construction
freeze. As part of the mediation process, the structures at issue have
been disassembled. The district court assessed a fine of approximately
$800,000 against the Navajo Nation. Consideration of the Navajo
Nation's appeal of that fine is now stayed before the United States
Court of Appeals for the Ninth Circuit.
---------------------------------------------------------------------------
Eighteen months of mediation culminated in an October 1992
Agreement in Principle. In November of 1992, the Agreement in
Principle was ratified by the Hopi Tribal Council, the Navajo
Tribal Council, the Secretaries of the Interior and Agriculture
and the Associate Attorney General of the United States under
President Bush's administration. The Agreement in Principle
contained the first commitment by the Hopi Tribe to permit
Navajo families residing on Hopi Partitioned Lands to remain
there, under a 75 year agreement. It also entailed a
compensation package between the United States and the Hopi
Tribe that would settle the Hopi Tribe's claims against the
United States and provide lands that its members could use in
light of continued occupancy by the Navajo of the Hopi
Partitioned Lands.
The Agreement in Principle laid the groundwork for
important accommodations to and commitments by each of the
parties. During the last three years, the Navajo families and
the Hopi Tribe have been meeting to define the final terms of
an Accommodation Agreement that will be available to the Navajo
full-time residents of the Hopi Partitioned Lands, as
identified on a negotiated list called ``List A.'' Those
meetings concluded in December 1995.
In addition, over the last three years the United States
has been working with the Hopi Tribe to try to restructure a
component of the Settlement that, in 1992, caused serious
concern to the public. The Departments of Justice and the
Interior, under the Clinton Administration, have continued
negotiation in order to carry through on the commitments and
achievements of the prior Administration, while making
necessary revisions to address concerns with the negotiated
framework ratified by that Administration.
Under the Agreement in Principle, the federal government--
in settlement of several lawsuits against it by the Hopi Tribe
and in consideration of the Hopi Tribe's commitment to allow
Navajo families to remain at their homesites on Hopi land--
would have taken 500,000 acres of land into trust for the Hopi
Tribe. A majority of the acreage involved was state or fee
lands that would have been acquired for the Hopi Tribe. But
approximately 200,000 acres of the lands involved were National
Forest Lands. It was the National Forest lands component of
that settlement framework that caused the grave public concern.
In restructuring the compensation, the Department of
Justice tried to address the public concerns, while still
adhering to the basic tenets of the 1992 Agreement in Principle
upon which the Hopi Tribe's offer to the Navajo families was
premised. In December 1995, the Departments of Justice and of
the Interior signed an agreement with the Hopi Tribe that
reflects such a restructuring and does not involve the transfer
of any National Forest lands.

d. the two agreements

1. The Accommodation Agreement.--The Accommodation
Agreement developed out of the issues raised by the Navajo
residents of the Hopi Partitioned Lands in the Manybeads
lawsuit and out of the countervailing concerns of the Hopi
Tribe in its suits against the Navajo Nation and the United
States. A representative of the Justice Department attended
nearly every session of more than 40 full-day discussions of
the Navajo families' concerns. We have learned a great deal
from those discussions and have tried to assist where possible;
but the true progress from those discussions was (and only
could have been) made by the central parties to the
Accommodation Agreement, the Hopi Tribe and the Navajo families
residing on the Hopi Partitioned Lands. The Navajo Nation's
efforts in support of mediation, too, have been essential to
that achievement.
With regard to the Manybeads lawsuit itself, the United
States and the Navajo families are discussing a process for
dismissing the suit that will provide for court recognition of
the Settlement and final resolution of the legal issues. Those
technical points, however, are peripheral compared with the
great achievement represented by the negotiation of an
Accommodation Agreement that will allow the Navajo families to
remain on the Hopi Partitioned Lands.
Very briefly, the individual Accommodation Agreements,
which will be for a term of 75 years, assure Navajo residents
who are on List A of: a three-acre homesite, ten acres of
farmland, increased grazing, and traditional uses, such as herb
gathering and visits to religious shrines, on areas of HPL
beyond the bounds of their homesites.
We now seek the assistance of Congress in giving effect to
this achievement, in the form of an extension of the Hopi
Tribe's leasing authority to enable the Hopi Tribe to offer the
Navajo residents a 75-year Accommodation Agreement. The
necessary legislation involves a simple technical amendment to
25 U.S.C. 415(a). Numerous other tribes motivated by economic
interests and/or concerns for self-determination have received
99 year leasing authority, without any apparent contest. This
is reflected in the Code's long list of approximately 35
Reservations for which the statutory 25-year leasing
restriction has been amended.
2. The United States' Agreement with the Hopi Tribe.--From
the Justice Department's perspective, our focus in negotiating
the agreement with the Hopi Tribe was to engender circumstances
under which the Hopi Tribe would allow the Navajo residents to
remain on the Hopi Partitioned Lands, and so diminish the need
for forced relocation. The Justice Department also pursued
settlement in an effort to resolve the United States' potential
exposure in three existing lawsuits and to stem further
litigation on related issues.
Under the Settlement Agreement entered into by the Hopi
Tribe and the United States Department of Justice and United
States Department of the Interior on December 14, 1995, the
Hopi Tribe commits to abandon prosecution of one threatened and
three existing lawsuits against the United States and promises
to offer and abide by the terms of the Accommodation Agreement
it has negotiated with the Navajo families. In exchange for the
compromise and settlement of these four legal actions, the
United States has agreed to pay $50.2 million to the Hopi Tribe
under certain conditions described below. In deciding to settle
these suits for $50.2 million, we followed the procedures the
Department's lawyers employ in settling any lawsuit. We
evaluated the reasonable range of the United States' possible
exposure and litigation risk in each of the lawsuits. The
monetary settlement we reached with the Hopi Tribe is based on
the Justice Department's assessment of the reasonable range of
values for the multiple lawsuits. Payment of compensation to
the Hopi Tribe, however, is tied to the percentage of Navajo
families residing on the HPL who sign up for accommodation
agreements.
In addition to resolution of the federal government's
exposure in the lawsuits, to the extent that Navajo families
choose to remain on the Hopi Partitioned Lands under an
Accommodation Agreement, there could be a savings to the
federal government in relocation benefits. A conservative
estimate of this savings approximates $100,000 for each family
that is eligible for benefits and decides to remain, or a
potential aggregate savings of $5 to $13 million if most
eligible families remain.
a. The Lawsuits to be Settled Under the Hopi Tribe-United
States Settlement Agreement.--The four lawsuits resolved by the
Settlement Agreement all involve claims by the Hopi Tribe
concerning the United States' alleged failure to protect the
Hopi Tribe's rights against use of their lands by members of
the Navajo Nation. The lawsuits are:
(1) Hopi Tribe v. United States, Civ. Nos. 319-84L, 320-
84L, 321-84L and 651-89L, which are pending in the United
States Court of Federal Claims (the ``Court of Federal Claims
cases''). In these cases, the Hopi Tribe sued the United States
for breach of its fiduciary duty arising from the United
States' failure to collect (a) livestock trespass penalties,
(b) forage consumed fees, and (c) property damage fees from the
Navajo Nation and/or its members on behalf of the Hopi Tribe
pursuant to regulations governing trespass on Indian trust
lands. The Hopi Tribe originally claimed $281 million in
damages for trespasses from 1973 through 1989.
For purposes of settlement, the Hopi Tribe and the
United States have parsed these Court of Federal Claims cases
into three parts by time period. As mentioned, this staggered
settlement of the Court of Federal Claims cases allows the
United States and the Hopi Tribe to coordinate the payment and
resolution of these lawsuits with the achievement of other
goals of the Settlement--such as accommodation of a majority of
the Navajo residents of the Hopi Partitioned Lands.
(2) Secakuku v. Hale et al., Nos. 94-17032, 95-15092, is
pending in the United States Court of Appeals for the Ninth
Circuit (the ``Damages case''). In this case, the Hopi Tribe
has brought an action against the United States pursuant to
Section 18 of the Settlement Act, 25 U.S.C. 640d-17(a),
alleging that the United States is jointly and severally liable
with the Navajo Nation for any post-partition damage to the
Hopi Partitioned Lands caused by pre-partition overgrazing. The
damages amount found by the U.S. District Court is
approximately $3.4 million.
(3) Hopi Tribe v. Navajo Tribe, et al., Civ. 85-801 PHX-
EHC, is pending in the United States District Court in Phoenix,
Arizona. In this case (the ``Rental Case''), the Hopi Tribe
has, among other claims, alleged failure of the Department of
the Interior to make the fair rental value determinations
required by Section 16 of the Settlement Act, 25 U.S.C. 640d-
15(a), on a timely basis. This delay has deprived the Hopi
Tribe of rental funds for homesite, farming and grazing uses by
members of the Navajo Nation that, pursuant to the statute,
would be paid to the Hopi Tribe by the Navajo Nation pursuant
to the Department of the Interior's determination of the
appropriate amount.
(4) Claim by the Hopi Tribe Against the United States for
Failure to Give the Hopi Tribe Quiet Possession of its Lands.--
As part of the parties' efforts to bring about a consensual
resolution of the longstanding problems concerning use of the
Hopi Partitioned Lands, the Hopi Tribe has refrained from its
stated intention of bringing litigation against the United
States for the alleged failure of the United States, in the
past and present, to give the Hopi Tribe quiet possession of
Hopi Lands that are used and occupied by Navajo families. Such
potential litigation includes, for example, an injunctive
action seeking to have all remaining Navajo families removed,
an action alleging a temporary taking without compensation in
violation of the Hopi Tribe's Constitutional rights, and an
action for breach of trust.
b. The Terms of Hopi Tribe-United States Settlement
Agreement.--The payments and other consideration from the
United States and the dismissal of the lawsuits are phased.
The first phase has already been effected. In January 1996,
the Hopi Tribe and the United States moved for dismissal of the
Hopi Tribe's claims against the United States in the Damages
Case. The United States Government Accounting Office on
February 14, 1996, certified payment to the Hopi Tribe of $2.4
million in settlement and compromise of those claims.
In the second phase, the United States will pay the Hopi
Tribe $22.7 million in settlement and compromise of a portion
of the Court of Federal Claims Cases--after the Hopi Tribe
obtains from Congress 75-year leasing authority--so that it may
follow through on its offer to the Navajo families of an
Accommodation Agreement. Under existing law, the Hopi Tribe may
not lease its lands for longer than 25 years, with one 25-year
renewal.
The third phase is triggered if or when sixty-five percent
(65%) of the Navajo heads of household eligible for an
Accommodation Agreement have entered into an Accommodation
Agreement with the Hopi Tribe or have chosen to relocate. At
such time, and upon dismissal of a second portion of the Court
of Federal Claims Cases, the United States would pay the Hopi
Tribe $10 million in settlement and compromise of those claims.
The fourth phase of the Settlement is triggered if or when
seventy-five percent (75%) of the eligible Navajo heads of
household have entered into an Accommodation Agreement or
chosen to relocate. At such time, and upon dismissal of the
third and final portion of the Court of Federal Claims Cases,
the United States would pay the Hopi Tribe $15.1 million in
settlement and compromise of those claims.
The Hopi Tribe has repeatedly stated that it would not
agree to offer an accommodation to the Navajo families in
exchange for money alone. The continued occupation of the Hopi
Partitioned Lands by the Navajo families deprives the Hopi
Tribe of certain uses of its lands. Because the Navajo families
are widely dispersed throughout the Hopi Partitioned Lands and
because the Navajo families herd livestock in the areas around
their homesites, the acreage made effectively unavailable for
Hopi use is greater than a simple calculation of the homesite
and farmsite acreage would suggest. The Hopi Tribe's agreement
to allow Navajo families to remain on the Hopi Partitioned
Lands is based on the understanding that additional lands would
be taken into trust for the Hopi Tribe for use by Hopi Tribal
members. Thus, the Department of the Interior, pursuant to its
authority under 25 U.S.C. 465, has agreed to take land into
trust for the Hopi Tribe as part of the fourth phase of the
Settlement. Such land would be purchased by the Hopi Tribe with
its own funds.\3\
---------------------------------------------------------------------------
\3\ The Hopi Tribe may apply some, all, or none of the $50.2
million settlement with the United States to the purchase of land.
---------------------------------------------------------------------------
In the fourth phase of Settlement, if, by the end of 1996,
75% or more of the Navajo heads of household eligible for an
Accommodation Agreement have entered into an Accommodation
Agreement or chosen to relocate, the Department of the Interior
has agreed that it will take into trust for the Hopi Tribe up
to 500,000 acres of rural fee lands or combined fee and State
lands in northern Arizona. Such fee lands would need to have
been acquired by the Hopi Tribe on a willing-seller willing-
buyer basis. No private lands would be condemned as part of
this Settlement.
As those familiar with land ownership in northern Arizona
are well aware, most of the larger tracts of rural lands in
northern Arizona in the vicinity of the Hopi Reservation are
checker-boarded fee and State lands. Over the course of the
negotiations, the State has repeatedly indicated its
willingness to have the federal government acquire State lands
at fair market value in order to help achieve a settlement of
this longstanding dispute. Because of State constitutional and
statutory restrictions on the sale of State lands, the Hopi
Tribe could not acquire such lands without the assistance of
the federal government.
Thus, in order to facilitate the taking into trust of a
contiguous parcel of land, to avoid the jurisdictional and
other complications of having State lands interspersed within
tribal trust lands, and to facilitate the interests of both the
Hopi Tribe and the State, the Settlement Agreement provides
that the United States will acquire for the Hopi Tribe for fair
market value (with funds provided by the Hopi Tribe)
interspersed State lands within the exterior boundaries of
private lands acquired by the Tribe, provided that the State
concurs that such acquisition is consistent with the State's
interests. Our commitment to condemn State lands under these
circumstances is based on the authority provided by 40 U.S.C.
257, 25 U.S.C. 465, and 25 U.S.C. 451.
The Settlement Agreement further imposes time requirements
on the Office of Navajo-Hopi Indian Relocation (``Relocation
Office'') for completing its responsibilities under the 1974
Settlement Act with respect to those Navajo families remaining
on the Hopi Partitioned Lands who are eligible for relocation
assistance. The Settlement Agreement requires the Relocation
Office to complete all of the activities with regard to
voluntary relocation of Navajo families residing on the Hopi
Partitioned Lands (i.e., counsel the family, help the family
select a homesite location off Hopi lands, construct or buy a
house for the family and move the family) who, during 1996,
affirmatively choose to relocate, rather than choosing to enter
into an Accommodation Agreement.
The parties also have agreed on a transitional mechanism
for Navajo families that enter into Accommodation Agreements
during 1996. The passage of three years following the
acceptance of a homesite accommodation waives any and all
rights a Navajo resident of the Hopi Partitioned Lands has to
relocation benefits. In other words, the Relocation Office--or
other entity assigned to assume its responsibilities--would
provide benefits for the three years following 1996, for any
Navajo otherwise eligible for the benefits who has entered into
an Accommodation Agreement, and subsequently decides that
moving from the Hopi Partitioned Lands is preferable.
The Settlement Agreement with the Hopi Tribe also addresses
the circumstance of Navajo residents who do not enter into an
Accommodation Agreement in 1996. The Settlement Agreement
requires the Relocation Office to begin, in January 1997,
implementation of its regulations that will result in the
provision of housing for Navajo residents who have not entered
into an Accommodation Agreement and are eligible for relocation
benefits--but have not affirmatively chosen to relocate. The
Settlement Agreement further requires that provision of homes
for such families will be completed by February 1, 2000. Such
action is already directed by the 1974 Settlement Act and the
Relocation Office's regulations. The Settlement Agreement
simply establishes a timeframe.
Congressional appropriations enactments and court orders
have forbidden the United States from moving Navajo residents
of the Hopi Partitioned Lands who are eligible for relocation
assistance unless a house first has been provided by the
Relocation Office. Thus, the provision of housing removes an
existing legal obstacle to moving families who decline to enter
into an agreement with the Hopi Tribe and refuse to abide by
the provisions of federal law that require them to move off the
lands partitioned to the Hopi.
The parties have spent years negotiating these agreements
in an effort to provide a tenable alternative to relocation. We
hope that few will decline to follow either lawful course. But
there may be some who will so decline. The Settlement Agreement
is designed to address that eventuality in a manner consistent
with the provisions of the 1974 Settlement Act, as enacted by
Congress and interpreted by the courts.

e. meetings with the public on this issue

In early 1993, representatives from the Department of the
Interior and the Department of Justice devoted several months
to meeting with public officials and citizen groups in Arizona
that had expressed interest in or concerns about the framework
of a settlement which, at that time, involved the transfer of
National Forest lands into trust for the Hopi Tribe. We met
with representatives of the Governor's Office, the Arizona Land
Commission, the Arizona Department of Game and Fish, with
representatives of the City of Flagstaff, the County Board of
Supervisors for Coconino County, and with members from the
Arizona Coalition for Public Lands and with members of
environmental groups in Arizona. Issues that emerged from these
discussions included concern that: (1) no private land be taken
by condemnation; (2) the water resources for the City of
Flagstaff be preserved; (3) the National Forest lands treasured
by the public for recreational use not be transferred out of
the public domain; (4) the tax base for the Counties not be
significantly reduced; and (5) a mechanism be developed for
addressing game and fish management problems that arise where
there are changes in management jurisdiction such as at
boundaries between states or between state and tribal lands. In
working with the Hopi Tribe to restructure the compensation
provided in the Settlement, we tried to address these concerns.
The Settlement Agreement signed with the Hopi Tribe does
not involve condemnation of any private lands. It does not
jeopardize the water supply for the City of Flagstaff. It does
not transfer any National Forest land. It appears that any
effect on the local tax base will be minimal. Current tax rates
on rural lands in Coconino, Navajo and Apache Counties are low.
According to figures provided by the State, at current rates
the lost property tax revenue from taking approximately 250,000
acres off the tax rolls (presuming that roughly half the lands
would be already-tax-immune State lands interspersed with
private lands) would be between $5,000 and $10,000 annually. In
addition, any site specific concerns could be raised in public
comment opportunities that would precede the taking into trust
of a specific parcel, if the preconditions to Interior's
commitments are met.
Similarly, the Settlement Agreement does not provide for
the immediate transfer of any jurisdiction over game and fish
management. When and if lands are taken into trust for the Hopi
Tribe, the specific issues relating to wildlife concerns on a
particular land parcel can be addressed. As noted, the
Settlement Agreement provides that any action by the Department
of the Interior to take land into trust for the Hopi Tribe will
be subject to all existing applicable laws and regulations,
including the National Environmental Policy Act and 25 C.F.R.
Part 151, as amended by 60 Fed. Reg. 32,874 (June 23, 1995)
(which sets forth public comment procedure for the taking of
lands into trust for tribes). Thus, once the preconditions are
met for taking land into trust--i.e., after the 75 percent
threshold is achieved and if the Hopi Tribe acquires a rural
parcel of land and, in turn, requests the Department of the
Interior to take the parcel into trust--then, Interior will be
able to consider the actual impacts (if any) to localities. For
example, hunters or wildlife managers might be concerned about
elk or antelope populations in the region or a school board
might be concerned about a diminution in the property tax base.
Their concerns could be considered as part of the public
comment process that would occur prior to the taking of any
particular parcel into trust.
In addition to incorporation the information gathered from
the meetings in 1993, and from subsequent conversations
throughout the last three years of negotiations, the United
States made an effort to further ensure our understanding of
the public's concerns after we had developed with the Hopi
Tribe a restructuring of the Settlement. In November or
December 1995, prior to concluding our agreement with the Hopi
Tribe, we discussed the general outlines of the proposed
Settlement with representatives from the State assigned to deal
with this issue, in order to gain their perspective in the
hopes of ensuring that the restructure Settlement could enjoy
the State's and public's support. In those discussions, and in
discussions we have had with the State, County and City
officials in December 1995 and early this year, after signing
of the Settlement Agreement, comments have been generally
favorable. There has been no strong opposition and many have
commended our efforts and appreciated the restructuring
embraced by the recent agreement.

f. conclusion

The Settlement does not provide any of the parties all of
what they would like. Like many important settlements, it
represents a compromise for each of the parties, not a perfect
solution for anyone. Its achievements, however, are momentous.
In our judgment, this is the best deal that can be achieved.
The central goal of the negotiations was to reach a consensual
resolution to the dispute over use of the Hopi Partitioned
Lands--one that both preserves Hopi jurisdiction and allows
Navajo families to remain at their homesites. The 75 year term
of the Accommodation is not for as long a term as the Navajo
families would like, and it is for longer than many members of
the Hopi Tribe would have preferred.
After devoting more than 11,000 hours during the last four
and a half years to understanding both the broad scale and the
detailed issues involved in resolution of this problem, the
Justice Department is satisfied that this is a settlement that
accomplishes what must be achieved to obtain a meaningful
resolution of the conflict over use of the Hopi Partitioned
Lands. By providing an alternative allowing Navajo residents to
remain under Hopi jurisdiction, it removes the two most dire
specters--that of the involuntary relocation of hundreds of
Navajo residents of the Hopi Partitioned Lands and that of a
forced reduction of the Hopi Tribe's ancestral and already
diminished reservation lands. We encourage this Committee, and
the Congress as a whole, to promote the passage of a technical
amendment to 25 U.S.C. 415. Such an amendment is necessary to
give effect to this consensual resolution, so that this summer
Navajo residents can begin to repair their homes, pursuant to
the terms of the Accommodation Agreement.
As is true in many difficult negotiations, it is important
to maintain momentum and progress. This is such an instance. We
now have a Settlement that is extremely time sensitive. Navajo
families have until the end of 1996 to enter into an
Accommodation Agreement; they will need several months to
accomplish this. Various persons or parties may have issues
they would like Congress to take up at this time relating to
the recent Settlement. In our judgment, it is important for
Congress to act swiftly on this modest legislative proposal to
grant the Hopi Tribe 75-year leasing authority so that this
historic agreement will not be jeopardized.
This negotiation process imposed an enormous time burden on
all the parties and required untiring patience and
perseverance. We are deeply appreciative of the hospitality
extended by members of both tribes during the many, many visits
we have made to the Hopi Tribe's governmental seat in
Kykotsmovi, to the Navajo Nation's governmental seat in Window
Rock and to the homes of residents of the Hopi Partitioned
Lands. We hope these agreements will foster a brighter and more
peaceful future for the people of northern Arizona.
Thank you for the opportunity to present the views of the
Department of Justice.
ADDITIONAL VIEWS OF PETE V. DOMENICI

For over 100 years since their joint use reservation was
created by President Chester Arthur, the Navajo and Hopi Tribes
have been struggling to find the solution to dividing up their
lands. Agreement between the tribes has not been possible, so
Congress and the courts have played a major role in trying to
settle this long-standing dispute.
Today, with a Hopi Tribe of about 10,000 people and a
Navajo Nation of about 200,000, the problem persists in its
last and most difficult stages.
To date, over $330 million has been spent and over 2,700
households or 11,000 Navajo and Hopi Indians have been
relocated. Navajos have moved off Hopi Partitioned Land (HPL)
and Hopi have moved off Navajo Partitioned Land (NPL).
Of the 11,000 Indians involved, over 10,000 Navajos have
moved and some 1,000 Hopi have relocated to their redesignated
tribal lands. The 160 or so remaining Navajo families have
refused to move, citing cultural and religious reasons. In
recognizing their religious, economic, and other ties to the
land, the Accommodation Agreement among the Navajo Nation, Hopi
Tribe, the Navajo Families Mediation Team, and the United
States, is an integral and critical component of any
settlement. Without the Accommodation Agreement, the Navajos on
Hopi land would remain out of compliance and the threat of
pending relocation could easily lead to more bitterness and
distrust, more litigation, and no resolution of this long-
standing problem.
Of particular concern to the remaining Navajo families on
the HPL and the Navajo Nation is the issue of how long the
families may continue to occupy their homesites. The
Accommodation Agreement provides for lease agreements between
the Hopi Tribe and the Navajo families for a period of 75
years, with the right to apply for extensions at the end of
that period of time. To reconfirm this agreement, I am pleased
the committee agreed to accept my amendment to S. 1973 that
states clearly that the leases between the families and the
Hopi Tribe may be extended at the conclusion of the term of the
75-year lease. This language will help alleviate families'
legitimate fears regarding the period of time they can continue
their lifestyles on lands they have occupied for over a hundred
years.
The second critical issue that remains to be addressed
concerns the impact upon the Navajo Nation of the Hopi Tribe-
United States Settlement Agreement. This agreement is a
government-to-government settlement, to which the Navajo Nation
is not a party, despite the fact that under the terms of the
Accommodation Agreement the Navajo Nation is expected to pay
full, fair, annual rent for the terms of the leases between the
Navajo Families and the Hopi Tribe. Moreover, under the terms
of the Settlement Agreement in Section 6(f), the Navajo Nation
will continue to be liable for any claims the Hopi Tribe may
have against it.
Section 4 of S. 1973 states that ``The United States
approves, ratifies, and confirms the Settlement Agreement.''
Under the terms of the agreement and if all conditions are met,
the United States will pay the Hopi Tribe $50.2 million in
exchange for settlement of four claims by the Hopi Tribe
against the United States. The Navajo Nation contends certain
claims for damages that will be released by the Hopi Tribe
against the United States under the terms of the Settlement
Agreement overlap with existing claims against the Navajo
Nation. The Navajo Nation is concerned, therefore, that
subsequent pursuit of these claims against the Nation will
result in a double recovery for damages. Since the United
States represents its position as one of neutrality on any
claims between the Hopi Tribe and the Navajo Nation, the Navajo
Nation requests that nothing in S. 1973 prejudice the rights of
the Navajo Nation to pursue legal claims which they believe
would prevent double recovery for claims of damage against it.
I believe it is imperative that S. 1983 contain language
explicitly stating that the Navajo Nation was not a party to
the Settlement Agreement, and that the Navajo Nation will not
be limited in pursuing any legal remedies it deems necessary
and legitimate. This is only fair. Consequently, it is my
intention to offer language that will address these specific
points, and I urge my colleagues to support such clarifying
provisions.
The text of the Settlement Agreement between the United
States and the Hopi Tribe dated December 14, 1995 and the
Accommodation Agreement which has been approved by the Hopi
Tribe, the Navajo Nation, representatives of the Navajo
families, and the United States, is set forth below:

Settlement Agreement

This Settlement Agreement (``Agreement'') is made and
entered into this 14th day of December, 1995, between the
United States of America (``United States'') and the Hopi Tribe
(``Tribe''), acting by and through their designated
representatives.
A. WHEREAS, it is in the public benefit for the Tribe,
Navajos residing on the Hopi Partitioned Lands (``HPL''), and
the United States to reach a peaceful resolution of a
disagreement that has caused great acrimony and hardship and
drained both the Hopi Tribe and the Navajo Nation of resources
for many decades.
B. WHEREAS, the Tribe and the United States agree that it
is in the best interest of the Tribe and the United States that
a final settlement of certain issues remaining in connection
with the Navajo--Hopi Settlement Act, Pub. L. 93-531, as
amended, be reached by negotiation and voluntary agreement
among the affected parties.
C. WHEREAS, the Tribe and Navajo families living on the HPL
have reached by negotiation and voluntary accord an agreement
on the terms pursuant to which certain Navajo families may
continue to live on the HPL under a 75-year accommodation
agreement. These negotiated terms are set forth in the
documents included here as Attachment A, when read together,
and are hereinafter referred to as the ``Accommodation Terms.''
An accommodation provided to an eligible Navajo family in
accordance with the Accommodation Terms is referred to
hereinafter as an ``Accommodation.'' The Navajos eligible for
an Accommodation are Navajos on List A (a copy of which is
included here as Attachment B), and, in addition, (i) those
Navajos domiciled on the HPL who were temporarily away for
purposes of education, employment, military service or medical
need at the time List A was prepared in 1992; (ii) those Navajo
legal residents who resided full-time on the HPL in 1992 who
are certified by the Office of Navajo Hopi Indian Relocation
(``ONHIR'') after October 30, 1992, as eligible for relocation
assistance; and (iii) such other individuals, as agreed to by
the Navajo and Hopi tribes. (In calculating the percentages
discussed in Sections 3, 6 and 7 of this Agreement, the head of
household (as defined in 25 C.F.R. 700.69(b) (1995)) included
on List A, or his/her successor head of household, is counted
but other family members are not included in the calculation.)
D. WHEREAS, the United States and the Tribe wish to
encourage the circumstances under which the Tribe will allow
those Navajo families currently residing on the HPL who enter
into an Accommodation to remain on the HPL. A Navajo family
that has entered into an Accommodation with the Hopi Tribe is
referred to herein as an ``Accommodation Signatory.''
E. WHEREAS, the continued occupation of the HPL by the
Navajo families deprives the Tribe of certain uses of its land.
The Tribe's agreement to allow Navajo families to remain on the
HPL is based on the understanding that additional lands will be
taken into trust for the Tribe for use by Hopi Tribal members.
The Tribe and the Secretary of the Department of the Interior
(``Secretary'') agree that, under the unusual circumstances of
this long, historical disagreement over the Hopi Lands, the
taking of additional lands into trust for the Tribe, as
specified in Section 7, is necessary to bring about a
resolution of the litigation and the problems that underlie it
and is consonant with the goals identified in 25 U.S.C.
Sec. 465 and the corresponding regulations.
F. WHEREAS, to the extent the Tribe accommodates Navajo
families who would otherwise have to be relocated from the HPL,
the United States will save some of the expense of completing
the relocation program, which has already cost over $330
million.
G. WHEREAS, the Tribe currently has three actions pending
against the United States and, as part of this settlement, is
foregoing a fourth action against the United States. These are:
i. Hopi Tribe v. Navajo Tribe, et al., CIV 85-801 PHX-EHC,
which is pending in the United States District Court in
Phoenix, Arizona, In this case (``the Rental case''), the Tribe
has brought an action against the United States, among other
things, for the alleged failure of the Secretary of the
Interior (``Secretary'') to make on a timely basis the fair
rental value determinations required by 25 U.S.C. Sec. 640d-
15(a). On July 5, 1985, the Tribe filed a motion for partial
summary judgment on this ground against the United States. On
April 2, 1990, the District Court denied as moot, without
prejudice, the portion of the motion dealing with the United
States.
The Tribe has indicated to the United States its desire
formally to renew its motion and to seek, either in the
District Court or in the Court of Federal Claims, damages on a
claim alleging a breach of the Secretary's duty to issue
certain rental determinations in a timely manner.
ii. Secakuku v. Hale, et al., Nos. 94-17032, 95-15029,
which is pending in the United States Court of Appeals for the
Ninth Circuit. In this case (''the Damage case''), the Tribe
has brought an action against the United States pursuant to 25
U.S.C. Sec. 640d-17(a)(3), alleging, among other things, that
the United States is jointly and severally liable with the
Navajo Nation for any post-partition damage to the HPL caused
by pre-partition overgrazing.
On January 15, 1993, the United States District Court in
Phoenix entered judgment for the United States, holding that
the United States in not liable to the Tribe for any portion of
the post-partition damage. The Tribe has appealed this issue
and is awaiting a decision by the Ninth Circuit Court of
Appeals.
iii. Hopi Tribe v. United States of America, CIV Nos. 319-
84L, 320-84L, 321-84L, and 651-89L, which are pending in the
United States Court of Federal Claims. In these cases (referred
to collectively as ``the Court of Federal Claims cases''), the
Tribe is suing the United States, inter alia, for breach of its
fiduciary duty arising from its failure to collect (a)
livestock trespass penalties (No. 319-84L), (b) forage consumed
fees (No. 320-84L), and (c) property damage fees on behalf of
the Tribe (No. 321-84L). All three claims are asserted in No.
651-89L. In these actions, the United States argued that some
of the Tribe's claims were barred by the statute of
limitations. The Tribe concedes that the six-year statute of
limitations, 25 U.S.C. 2501, governing claims against the
United States bars the Tribe's claims arising prior to June 22,
1978.
For purposes of settlement, the Tribe and the United States
have parsed the Court of Federal Claims cases into three parts:
(1) all livestock trespass penalty claims for the period prior
to and through 1982 and all other non-livestock-trespass-
penalty claims alleged in the Court of Federal Claims cases for
all periods through and including 1996; (2) all livestock
trespass penalty claims for the period 1983 through and
including 1988; and (3) all livestock trespass penalty claims
for the period 1989 through and including 1996. The Court of
Federal Claims cases are currently stayed.
iv. Claim by the Hopi Tribe Against the United States for
Failure to Give the Tribe Quiet Possession of Its Lands. During
the course of the Ninth Circuit ordered mediation, which
commenced in May 1991, and as part of the parties' efforts to
bring about a consensual resolution of the longstanding
problems concerning use of the Hopi Lands, the Tribe has
refrained from bringing litigation against the United States
for the alleged failure of the United States, in the past and
currently, to give it quiet possession of Hopi Lands that are
used and occupied by Navajo families. Such potential litigation
includes, inter alia, an injunctive action seeking to have the
Navajo families removed, an action for a temporary taking
without compensation, and an action for breach of trust. Any
such potential actions are referred to herein as the ``Quiet
Possession Claim.''
H. WHEREAS, the United States has denied that it has any
liability to the Tribe in the Rental, Damage, or Court of
Federal Claims cases and denies it has any liability in the
Quiet Possession Claim.
I. WHEREAS, the United States and the Tribe wish to improve
their relationship and to compromise their differences in the
Rental, Damage and Court of Federal Claims cases and in a Quite
Possession Claim.
J. WHEREAS, the Tribe and the United States benefit from
these voluntary settlements and, to that end, the Tribe, the
Secretary and the United States Attorney General will fully
support this settlement.
K. NOW, THEREFORE, it is hereby agreed by the Tribe and the
United States that the Rental, Damage, and Court of Federal
Claims cases, and the Quiet Possession Claim be settled and
compromised on the following terms and conditions.

terms of the agreement

1. Compromise and Settlement by the Tribe of Certain Claims
Against the United States in the Rental Case Regrading Certain
Fair Rental Value Determinations: The Tribe agrees to refrain
forever from instituting, maintaining, prosecuting or
continuing to maintain or prosecute any suit or action against
the United States based upon any claim, demand, action, cause
of action, or liability of any nature whatsoever (including any
claim for damages or compensatory interest for delay in
issuance of the rental determinations), whether known or
unknown, which claim, demand, action, cause of action, or
liability arises from the Secretary's failure, prior to January
1, 1997, to issue initial final rental determinations on the
merits for Navajo homesite, farming and grazing use of the HPL
for the years 1979 through 1995. (This bar to the Tribe's claim
applies even if the Secretary's initial final rental
determination on the merits is subsequently set aside or
remanded by a court which reviews the administrative decision.)
Claims, if any, concerning a failure by the Secretary (a) after
January 1, 1997, to have entered initial final rental
determinations on the merits for the above-described rental
periods and (b) to enter rental determinations for any rental
period after 1995, are not covered by this Agreement.
2. Compromise and Settlement by the Tribe of all Claims
Against the United States in the Damage Case: The Tribe agrees
to refrain forever from instituting, maintaining, prosecuting,
or continuing to maintain or prosecute any suit or action
against the United States based upon any claim, demand, action,
cause of action, or liability that was alleged, or could have
been alleged, in the Damage case. The Tribe and the United
States agree, pursuant to FRAP 42(b), to file a motion to
dismiss the Tribe's appeal against the United States in the
Damage case within one week of the date of the signing of this
Agreement. If the motion is not granted and the Tribe is
ultimately awarded at judgment in damages against the United
States, the Tribe agrees that the obligations of the United
States in the Damage case will be met by the United States'
payment of $2,400,000.00 pursuant to Section 6(a) of this
Agreement. If, prior to a joint filing of the United States'
and Tribe's motion to dismiss the Tribe's claims against the
United States, the Ninth Circuit issues a decision or enters
judgment in the United States' favor, the United States shall
pay nothing to the Tribe for compromise of the Damage case.
3. Compromise and Settlement by the Tribe of all Claims
Against the United States in the Court of Federal Claims Cases:
(a). The Tribe and the United States agree to file stipulations
for dismissal with prejudice of all claims in the Court of
Federal Claims cases, except those identified in Subsections
3(b) and 3(c). That stipulation shall be made within two weeks
after the United States Congress enacts and the President signs
the amendment to 25 U.S.C. Sec. 415(a) or Sec. 635 described in
Section 5 below. The Tribe further agrees that after so moving
for dismissal it must and will refrain forever from
instituting, maintaining, prosecuting, or continuing to
maintain or prosecute any suit or action against the United
States based upon any claim, demand, actions, cause of action,
or liability that was alleged or could have been alleged in any
pleading in the Court of Federal Claims cases for any year
prior to and through 1982.
(b). The Tribe and the United States further agree to file
stipulations for dismissal with prejudice, pursuant to Rule 41
of the Court of Federal Claims Rules, of any livestock trespass
penalty claims for the period 1983 through and including 1988
after 65 percent of the Navajo heads of household eligible for
an Accommodation (as defined in paragraph C on pages 1-2 of
this Agreement) have entered into an Accommodation or have
chosen to relocate and are eligible for relocation assistance.
The Tribe further agrees that after so moving for dismissal it
must and will refrain forever from instituting, maintaining,
prosecuting, or continuing to maintain or prosecute any suit or
action against the United States based upon any claim, demand,
actions, cause of action, or liability that was alleged or
could have been alleged in any pleading in the Court of Federal
Claims cases for any year prior to and through 1988.
(c). The Tribe and the United States further agree to file
stipulations for dismissal with prejudice, pursuant to Rule 41
of the Court of Federal Claims Rules, of any livestock trespass
penalty claims for the period 1989 through and including 1996
after 75 percent of the Navajo heads of household eligible for
an Accommodation (as defined in paragraph C on pages 1-2 of
this Agreement) have entered into an Accommodation or have
chosen to relocate and are eligible for relocation assistance.
The Tribe further agrees that after so moving for dismissal it
must and will refrain forever from instituting, maintaining,
prosecuting, or continuing to maintain or prosecute any suit or
action against the United States based upon any claim, demand,
actions, cause of action, or liability that was alleged or
could have been alleged in any pleading in the Court of Federal
Claims cases for any year prior to and through 1996.
(d). With each dismissal with prejudice of the claims
described in subsection (a), (b) or (c) above, the Tribe may
obtain funds from the trust account as provided in Section 6
below.
4. Compromise and Settlement of the Quiet Possession Claim
and Agreement by the Tribe to Provide an Accommodation for
Certain Navajo Families Pursuant to the Accommodation Terms:
(a). The Tribe agrees to accommodate Navajo residents of the
HPL who, pursuant to the Accommodation Terms, are eligible to
enter into an Accommodation, in the manner and according to the
terms as set forth in Attachment A.
(b). The Tribe agrees to refrain forever from instituting,
maintaining, prosecuting, or continuing to maintain or
prosecute any suit or action in law or equity against the
United States based on any claim, demand, cause of action, or
liability regarding quiet possession of Hopi Partitioned Lands
which action arises out of: (i) any Navajo use or occupancy
that occurred prior to the date of the signing of this
Agreement; and (ii) any use or occupancy of Hopi Partitioned
Lands that occurs prior to February 1, 2000, by Navajos who are
eligible for an Accommodation; and (iii) any use or occupancy
of Hopi Partitioned Lands by Navajo Accommodation Signatories
in accordance with the Accommodation Terms during the term of
the Accommodation.
(c). Contingencies and Remedies.--However, in the event
that the United States does not provide consideration pursuant
to the terms of Section 7, the Tribe preserves pursuant to
Section 7(d) any Quiet Possession Claim it may have under 28
U.S.C. Sec. Sec. 1491 and 1505 arising out of the use of the
HPL after January 1, 1997, by any Navajo family who has entered
into an Accommodation. In the event that the United States does
not discharge the obligations set forth in Sections 9(c) and
9(d), the Tribe preserves pursuant to Section 9(e) any Quiet
Possession Claim it may have arising out of the use of the HPL
after February 1, 2000, by any Navajo family eligible for an
Accommodation who does not enter into one.
5. Agreement by the Tribe to Seek Legislation: The Tribe
agrees to seek enactment prior to December 31, 1996, by the
United States Congress, of an amendment to 25 U.S.C.
Sec. 415(a) or Sec. 635 that would authorize the Tribe to lease
land to the Navajo families for a term of seventy-five (75)
years. If such legislation is not enacted, the Tribe shall in
good faith attempt to negotiate an alternative leasing
arrangement, and the terms of this Agreement could be amended
to meet that circumstance.
6. Agreement by the United States to Pay the Tribe: In
consideration for the compromise of the Rental, Damage and
Court of Federal Claims cases and for foregoing a Quiet
Possession Claim as specified in Section 4(b), and for the Hopi
Tribe's promise and commitment to provide an accommodation, as
set forth in the Accommodation Terms, the United States agrees
to pay in settlement and compromise to the Tribe a sum of
$50,200,000.00, plus interest, to the extent provided below, in
the following manner:
(a). Upon filing in the Ninth Circuit Court of Appeals of a
joint motion to dismiss with prejudice the Tribe's appeal of
the United States' liability in the Damage case as specified in
Section 2, the United States shall pay the Tribe $2,400,000.00
in settlement and compromise of those claims.
(b). After the Tribe has obtained the enactment of
legislation as described in Section 5 and upon dismissal with
prejudice of the claims describe in Section 3(a), the United
States shall pay $22,700,000.00 in settlement and compromise of
those claims into an interest-bearing trust account in the
United States Treasury for the benefit of the Tribe.
Thereafter, and subject to otherwise applicable law, the Tribe
may obtain from the trust account $22,700,000.00 of the funds
plus any interest accrued, even if fewer than 65% of the Navajo
heads of household eligible for an Accommodation have entered
into an Accommodation or have chosen to relocate and are
eligible for relocation assistance.
(c). After sixty-five percent (65%) of the eligible Navajo
heads of household have entered into an Accommodation or have
chosen to relocate (and are eligible for relocation assistance)
and upon dismissal with prejudice of the Tribe's livestock
trespass penalty claim against the United States for the period
1983 through and including 1988, the United States shall pay
$10,000,000 in settlement and compromise of those claims into
an interest-bearing trust account in the United States Treasury
for the benefit of the Tribe. Thereafter, and subject to
otherwise applicable law, the Tribe may obtain from the trust
account $10,000,000.00 of the funds plus any interest accrued.
(d). After seventy-five (75%) percent of the eligible
Navajo heads of household have entered into an Accommodation or
have chosen to relocate (and are eligible for relocation
assistance) and upon dismissal with prejudice of the Tribe's
livestock trespass penalty claims for the period 1989 through
and including 1996, the United States shall pay $15,100,000.00
in settlement and compromise of those claims into an interest-
bearing trust account in the United States for the benefit of
the Tribe. Thereafter, and subject to otherwise applicable law,
the Tribe may obtain from the trust account $15,100,000.00 of
the funds plus any interest accrued.
(e). It is a form of this Agreement that the Tribe fulfill
its obligations to the Navajo families pursuant to the
Accommodation Terms, as specified in Section 4(a). If the Tribe
is not in compliance with the undertakings specified in Section
4(a), it shall not be entitled to receive distribution of
compensation under this Agreement, including the funds
described in subsections (a) through (d) of this Section or the
federal government's action with respect to lands, described in
Section 7.
(f). None of the releases describes in Section 1 through 4
which are being given to the United States by the Tribe are
intended to release the Navajo Nation from any liability it
might have to the Tribe. Nor is any of the consideration
provided under this Agreement from the United States to the
Tribe intended to release the Navajo Nation from any liability
it might have to the Tribe. The United States does not take a
position on the effect of this Agreement, if any, on
satisfaction of claims between the Hopi Tribe and the Navajo
Nation; that issue is one to be resolved between the tribes.
7. Agreement by the United States to Take Land Into Trust
for the Tribe and to Acquire State Lands with the State's
Concurrence: (a). As partial consideration for this settlement,
the Secretary agrees that, if seventy-five percent (75%) or
more of the Navajo heads of household eligible for an
Accommodation either have entered into an Accommodation or have
chosen to relocate and are eligible for relocation assistance,
the Department of the Interior will take in trust up to five
hundred thousand (500,000) acres of land for the benefit of the
Tribe under the terms set forth in this Section.
(i). It is contemplated that the Tribe will acquire lands.
With respect to any specific parcel of land acquired by the
Tribe, the Secretary, at the re}}}}}}}}}}}}}}}}