[H.R. 7679, 93d Cong., 1st Sess.]

A BILL To provide for the mediation and arbitration of the conflicting interests of the Navajo and Hopi Indian Tribes in and to lands lying within the joint use area of the Hopi Reservation established by the Executive order of December 16, 1882, and to lands lying within the Navajo Reservation created by the Act of June 14, 1934, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, (a) within thirty days after the date of enactment of this Act, the chief judge of the United States District Court for the District of Columbia shall appoint a Navajo-Hopi Board of Arbitration (hereinafter referred to as the "Board") which shall provide for the settlement and determination of the relative rights and interests of the Navajo and Hopi Indian Tribes (hereinafter referred to as the "parties") in and to lands, including surface and subsurface rights lying within the joint use area of the Hopi Reservation established by the Executive order of December 16, 1882, as determined in the case of Healing v. Jones (210 F. Supp. 125, D. Ariz. 1962; aff'd 363 U.S. 758, 1963), and the rights and interests of the Hopi Tribe or Hopi individuals in and to lands, including surface and subsurface rights lying within the Navajo Reservation created by the Act entitled "An Act to define the exterior boundaries of the Navajo Indian Reservation in Arizona, and for other purposes", approved June 14, 1934 (48 Stat. 960). The Board shall be composed of three members, one of whom the chief judge shall designate as Chairman. No member appointed to such Board shall have any interest, direct or indirect, in the settlement of the interests and rights set out in the first section of this Act. (b) Members of the Board shall receive compensation in the daily equivalent of the rate provided for grade GS-18 of the General Schedule in section 5332 of title 5 of the United States Code, for each day they are engaged in the business of the Board and shall be allowed travel expenses, including per diem allowance, as authorized by section 5703 of title 5 of the United States Code, in connection with their services for the Board.

(c) In carrying out its responsibilities under the provisions of this Act, the Board is authorized to

(1) make such rules and regulations as it deems necessary not inconsistent with this Act, and

(2) request from any department, agency, or independent instrumentality of the Federal Government any information, personnel, services, or materials it deems necessary to carry out its functions; and each such department, agency, or instrumentality is authorized to cooperate with the Board and to comply with such request to the extent permitted by law, on a reimbursable basis.

(d) At least one member of the Board shall be present during any of the negotiation sessions provided for in section 2(c), but any formal action or determination of the Board shall require agreement of at least two of the members.

(e) The existence of the Board shall terminate when it has filed a final report with the Secretary of the Interior (hereinafter referred to as the "Secretary") as provided in section 3 or 4, but, in no event, later than the end of the oneyear period beginning on the date of enactment of this Act.

(f) There is authorized to be appropriated not to exceed $500,000 for the expenses of the Board.

SEC. 2. (a) Within twenty days after the appointment of the Board, the Board shall, in writing, contact the tribal council of the Hopi and Navajo Tribe requesting appointment of a negotiation team from each tribe to be composed of not more than six members to be certified by appropriate resolution of the respective tribal council.

(b) In the event either or both of the parties fail to select and certify such team within thirty days after formal notice by the Board, he provisions of section 4 (c) shall become operative.

(c) Within fifteen days after formal certification of both teams to the Board, the Board shall schedule the first session of the negotiations at a place convenient to the parties. Thereafter, negotiation sessions, conducted under the guidelines established by this Act, shall be scheduled by agreement of the Board and the parties so long as at least one such session shall be held biweekly.

(d) In the event either or both parties fail to attend two consecutive sessions or, in the opinion of the Board, fail to bargain in good faith, the provisions of section 4 (c) shall become operative.

SEC. 3. (a) If, within one hundred and eighty days after the first session scheduled by the Board under section 2(c) of this Act, the parties reach agree

ment on the settlement of the rights and interests of the parties, such agreement shall be reduced to writing; signed by the parties and the members of the Board and notarized. The Board shall submit such agreement to the Attorney General of the United States who shall, forthwith, advise the Board only on the constitutionality and legality of any or all provisions of such agreement. The Board shall have limited discretion to modify such offer to conform to the advice of the Attorney General and to make technical changes. The Board shall transmit such modified agreement, together with a report thereon, to the Secretary. The Secretary shall submit such agreement and report to the Congress.

(b) If, within sixty calendar days (excluding Saturdays, Sundays, holidays, or days on which either House is not in session) after the submission of such agreement and report to the Congress, neither the Senate nor House of Representatives passes a resolution disapproving such agreement, it shall have the force and effect of law and shall be conclusive and binding upon the Navajo and Hopi Tribes and upon all other parties as to the rights and interests of the respective tribes or Indians in any lands or interest in lands which are determined and settled by said agreement.

SEC. 4. (a) If the parties fail to reach agreement on settlement within one hundred and eighty days after the date of the first session scheduled by the Board under section 2(c), the Board shall schedule a final session within fifteen days at which time the parties shall be required to submit their last best offer in final form. After such submission, the teams shall be dissolved.

(b) The Board shall select, in its discretion, that offer of the parties which it deems to be most reasonable and equitable in light of the law and circumstances. The Board shall submit such offer to the Attorney General of the United States who shall, forthwith, advise the Board only on the constitutionality or legality of any or all provisions of such offer. The Board shall have limited discretion to modify the offer to conform to the advice of the Attorney General and to make technical changes. The Board shall reduce such offer to writing and transmit such offer, signed by the members of the Board, together with a report thereon to the Secretary. The Secretary shall transmit such offer and report to the Congress. Thereupon, the provisions of section 3(b) shall apply.

(c) In the event one of the parties is in default, under section 2(b) or 2(d), the Board shall, working with the negotiating team of the performing party, or, if both parties are in default under section 2(b) or 2(d), the Board shall, independently, devise a plan of settlement which shall be most reasonable and equitable in light of the law and circumstances and consistent with the provisions of this Act. Thereupon, the Board shall proceed in accordance with subsection (b) of this section.

SEC. 5. For the purposes of section 3, the parties may make any provision in such agreement which is not inconsistent with existing law. No such agreement nor any provision in it shall be deemed to be a taking by the United States of private property compensable under the fifth amendment to the Constitution of the United States.

SEC. 6. For the purposes of a settlement under section 4 of this Act, the Board and the Attorney General shall be guided by the following:

(a) The Hopi Tribe and the Navajo Tribe, under the decision of Healing against Jones, have joint, undivided, and equal interests in and to all of the 1882 joint use area.

(b) Any division of the joint use area which results in an unequal share to one party shall be fully and finally compensable to such party by the other party or out of the appropriations hereinafter provided or both, except any such compensation from the appropriation provided shall not prejudice the right of the compensated party to share equitably in the remaining portion of such appropriation.

(c) The rights and interest of the Hopi Tribe in and to the exclusive Hopi Reservation defined in Healing against Jones shall not be reduced or limited in any manner.

(d) In any division of the surface rights to the 1882 joint use area, reasonable provision shall be made for the use and right of access to identified religious shrines of either party on the portion allocated to the other party and reasonable availability of and access to water, firewood, and grazing resources such as to render the surface use of both parties viable.

(e) Any claim the Hopi Tribe may have against the Navajo Tribe for an accounting of all sums collected by the Navajo Tribe since September 17, 1967, as trader license fees or commissions, lease rental or proceeds, or other similar charges for doing business or the use of lands within the Executive Order Res

ervation of December 16, 1882, and for a one-half share in such sums. The settlement may provide for satisfaction of such claim or for the adjudication of such claim, in which case the Hopi Tribe is authorized to commence an action against the Navajo Tribe in the United States District Court for the District of Arizona with any interest on an award by such court to be at the rate of 6 per centum per annum.

(f) Pursuant to the first section of the Act of June 14, 1934, provision shall be made for the partition and allocation of lands and interests in lands to the Hopi Tribe or Hopi individuals in the so-called Moencopi area of the 1934 Navajo Reservation which such provision shall take into consideration the(1) number of Hopi residing within such area on June 14, 1934;

(2) number of direct descendants of such Hopi residing in such area on the effective date of such Act;

(3) existing Hopi-Navajo dwelling patterns in such area;

(4) access to and availability of firewood, water, and grazing resources; (5) necessity of a corridor to the major portion of the Hopi Reservation; (6) contiguity and unity of lands partitioned to the Hopi Tribe or individuals.

Any lands apportioned to the Hopi Tribe or individuals shall be considered a part of the Hopi Reservation and administered by them.

SEC. 7. Any settlement accomplished under section 3 or 4 of this Act which necessitates the resettlement of members of one party from lands apportioned to the other party shall provide for—

(a) availability of in lieu lands for resettlement or priority of assignment on lands of the tribe of such member;

(b) reasonable period of time for settlement to avoid undue social, economic, and cultural disruption;

(c) funds for the rehabilitation of individuals or family units subject to resettlement;

(d) expenses of resettlement; and

(c) purchase of nonmovable improvement of individuals subject to resettlement.

The Secretary is authorized and directed to take such steps as are necessary to implement the resettlement provision of any settlement.

SEC. 8. Any lands or interest in lands partitioned or purchased as in-lieu lands hereunder shall be taken by the United States in trust for the tribe to which such lands were partitioned or for which such lands were purchased and shall become a part of the reservation of such tribe.

SEC. 9. In the event the subsurface rights to any lands partitioned under the provisions of this Act are left in joint ownership, such interests shall be administered by the Secretary on a joint-use basis with any development thereof being subject to the consent of both parties. Costs of such development shall be shared by both parties and the net income derived from such development shall be distributed by the Secretary to the parties on the basis of any percentage formula agreed upon or set in the settlement.

SEC. 10. Notwithstanding any other provision of this Act, the Secretary is authorized to allot in severalty to individual Paiute Indians, not now members of the Navajo Indian Tribe, who are located within the area described in the Act of June 14, 1934, and who were located within said area or are direct descendants of Paiute Indians who were located within said area on the date of such Act, land in quantities as specified in the Act of February 8, 1887 (24 Stat. 388), and patents shall be issued to them for such lands in the manner and with the restrictions as provided in sections 1, 5, and 6 of that Act.

SEC. 11. Notwithstanding any provision of this Act, or any agreement or settlement reached under authority of this Act, the Secretary is authorized and directed to immediately commence reduction of the numbers of all the livestock now being grazed upon the lands within the Joint Use Area of the 1882 Executive Order Reservation and complete such reductions to carrying capacity of such lands, as determined by the usual range capacity standards employed under title 25, section 151.6 of the Code of Federal Regulations, within one year after the date of enactment of this Act. The Secretary is directed to institute such conservation practices and methods within such area as are necessary to restore the grazing potential of such area to the maximum extent feasible. He shall, in addition, upon determination of any settlement under authority of this Act, provide for the survey, location of monuments, and fencing of boundaries of any lands partitioned under such settlement. There is authorized

to be appropriated not to exceed $10,000,000 to carry out the provision of this section.

SEC. 12. Subsequent to the partition of the surface of any land by a settlement reached or determined under authority of section 3 or 4 of this Act, the Navajo Tribe shall pay to the Hopi Tribe fair rental value as determined by the Secretary for all Navajo Indian use of lands partitioned to the Hopi Tribe and the Hopi Tribe shall pay to the Navajo Tribe fair rental value at determined by the Secretary for all Hopi use of lands partitioned to the Navajo Tribe.

SEC. 13. Either party may institute any original, ancillary, or supplementary actions against the other party as may be necessary or desirable to insure quiet and peaceful enjoyment of the reservation lands of said party and the members thereof and to fully accomplish the objects and purposes of any settlement reached under section 3 or 4 of this Act. Such actions may be commenced in the United States District Court for the District of Arizona by either of said parties against the other, acting through the chairman of the respective tribal councils, for and on behalf of the tribes, including all villages, clans, and individual members thereof.

SEC. 14. The United States shall not be an indispensible party to any action or actions commenced under authority of this Act and any judgment or judgments shall not be regarded as a claim or claims against the United States.

SEC. 15. All applicable provisional and final remedies and special proceedings provided for by the Federal Rules of Civil Procedure and all other remedies and processes available for the enforcement and collection of judgments in the district courts of the United States may be used in the enforcement and collection of judgments obtained pursuant to the provisions of this Act.

SEC. 16. For the purpose of carrying out the provisions of any settlement reached under authority of section 3 or 4 of this Act including, but not limited to, (a) resettlement and rehabilitation of individuals or family units of the parties, (b) purchase of improvements of individuals or family units subject to resettlement, (c) purchase of in-lieu lands, and (d) any compensation which may become payable under provision of section 6 of this Act, there is authorized to be appropriated not to exceed $16,000,000.

[H.R. 7716, 93d Cong., 1st Sess.]

A BILL To authorize the separation of the interests of the Hopi and Navajo Tribes in in certain lands set aside by the Executive Order of December 16, 1882, and to confirm to the Hopi Tribe exclusive rights in certain lands located within the exterior boundaries of the Navajo Reservation in Arizona as defined by Congress in 1934, and for other purposes

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "NavajoHopi Settlement Act".

TITLE I-CONGRESSIONAL FINDINGS AND PURPOSES

SEC. 101. The Congress, after review of the decision of the United States District Court for the District of Arizona, Civ. No. 579, entered on September 28, 1962, in the suit captioned Healing v. Jones, reported at 210 F. Supp. 125, finds in conformity with that decision as follows:

(1) that 2,453,294 acres were withdrawn from the public domain under an Executive order signed by President Chester A. Arthur on December 16, 1882, and were set apart "for the use and occupancy of the Moqui, and such other Indians as the Secretary of the Interior may see fit to settle thereon";

(2) that the Executive order of December 16, 1882, gave the Moqui, now known as the Hopi Indian Tribe, a nonexclusive right to use and occupy the reservation;

(3) that, pursuant to the terms of the Executive order of December 16, 1882, the Navajo Indian Tribe was impliedly settled on the reservation as of February 7, 1931, and thus also acquired a nonexclusive right to use and occupy the reservation;

(4) that Navajos have lived on a substantial portion of the land located in the Executive order reservation both prior to and since December 16, 1882; (5) that under the provisions of the Act of July 22, 1958, Public Law 85-547, the Hopi Tribe has an exclusive interest in that portiion of the Executive order reservation known as land management district 6, containing

631,194 acres, and the Hopi and Navajo tribes have joint, equal, and undivided interests in the remaining 1,822,800 acres contained within said Executive order reservation (such 1,822,800 acres referred to hereinafter as the joint-interest area);

(6) that Hopis have traditionally lived within the area of land management district 6 and that Hopi use and occupancy of the joint-interest area has been "de minimis".

(7) that on April 24, 1943, the Office of Indian Affairs divided the Executive order reservation between an area of use and occupancy set aside for the Hopis (land management district 6) and an area of use and occupancy set aside for the Navajos (the remainder of the reservation, now the joint-interest area); and that, when this division was made, according to the Court, "[m]any Navajo families, probably more than one hundred, then living within the extended part of district 6, were required to move outside the new boundaries and severe personal hardships were undoubtedly experienced by some."

SEC. 102. The Congress further finds—

(1) that the question of the disposition of areas in which the tribes have a joint interest was left by the Act of July 22, 1958, Public Law 85-547, for future determination by the Congress;

(2) that expulsion of Navajos from the joint-interest area would create serious hardships for the Navajo people, would do permanent and irreparable harm to the families affected, and would result in substantial costs to the United States;

(3) that the subsurface rights in the joint-interest area have substantial value, and that separate treatment of the surface and subsurface rights and estates in said area is feasible and practical;

(4) that there is an immediate need for a fair and just settlement of the respective interests of the Hopi and Navajo Tribes in the joint-interest area, and that any such settlement, while not sanctioning the removal of Hopi or Navajo families from the lands on which they now reside, should not deprive either tribe of an equal share of the value of the joint-interest area;

(5) that it is the purpose of this Act to provide for the settlement of the conflicting land interests of the Hopi and Navajo Tribes and to confirm the rights conferred upon the Hopi Tribe by the 1934 Act in the lands outside the 1882 Executive order area.

TITLE II-NAVAJO-HOPI SETTLEMENT COMMISSION

SEC. 201. There is hereby established the Navajo-Hopi Settlement Commission (hereinafter referred to as the "Commission"), which shall be composed of seven members; namely, three persons to be appointed by the Navajo Tribal Council, three persons to be appointed by the Hopi Tribal Council, and one person to be selected by the persons so appointed: Provided, That if agreement cannot be reached concerning the selection of the seventh member of the Commission within ninety days after a vacancy occurs, such member shall be selected by the President of the United States. The Commission shall elect a chairman or cochairmen from its membership.

SEC. 202. It shall be the purpose of the Commission to carry out the functions with which it is charged under the provisions of this Act.

SEC. 203. Members of the Commission shall hold office at the discretion of the appointing authority. Vacancies shall be filled in the same manner as the original appointments.

SEC. 204. Members of the Commission shall receive compensation in the daily equivalent of the rate provided for grade GS-18 in section 5332 of title 5, United States Code, for each day they are engaged in the business of the Commission, and shall be allowed travel expenses, including per diem allowance, as authorized by section 5703 of title 5, United States Code, in connection with their services for the Commission.

SEC. 205. The Commission shall convene at the call of the chairman or cochairmen, but must convene at least biweekly, to review activities and prescribe tasks for each member of the Commission and the staff thereof. The Commission shall report annually to the President and the Congress on the progress of the work of the Commission in fulfilling the purposes of this Act. The Commission, by majority vote, shall appoint, fix the pay of, and prescribe the duties of such staff as is necessary to carry out the purposes of this Act.