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, "Im]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.

SEC. 206. The Commission shall have the power to call upon any of the departments or agencies of the United States for any information it may deem necessary in carrying out its functions under this Act.

TITLE III-SEPARATION OF INTERESTS IN THE JOINT-INTEREST AREA

SEC. 301. Immediately following its organizational meeting the Commission shall commence an investigation to determine

(a) which lands within the joint-interest area were on July 22, 1958, used by Hopi Indians for residential or agricultural (including grazing) purposes and which lands were on that date used by the Navajo Indians for such purpose;

(b) which lands within the portion of the joint-interest area which on July 22, 1958, were used and occupied for residential or agricultural (including grazing) purposes by Navajo Indians were on or about July 22, 1958, used by Hopi Indians for the purposes of wood cutting and gathering, obtaining coal, gathering plants and plant products, visiting ceremonial shrines, and hunting.

SEC. 302. The investigation of the issues set forth in section 301 shall be completed within six months from the date of the organizational meeting, at which time the Commission shall file a report with the Secretary of the Interior and the chairmen of the Navajo and Hopi Tribal Councils, respectively, describing the lands at issue by metes and bounds, and illustrating their findings where necessary by field notes and plats. As to areas found to have been used by Hopi Indians pursuant to clause (b) of section 301 the report shall describe such uses.

SEC. 303. Within ninety days following the filing of the report under section 302, the Commission shall appraise the value of the respective interests described in said report and shall make public the results of such appraisal. In making such appraisal it shall consider such reductions in the value of the surface as can be expected to occur as the result of mineral exploitation under the provisions of leases in effect on the date of enactment of this Act.

SEC. 304. Immediately following the issuance of the appraisal report, the Secretary of the Interior shall cause to be served on the Navajo Tribal Council and the Hopi Tribal Council the form of an order which shall

(a) provide that all lands identified by the report under section 302 to have been used and occupied by Navajo Indians on July 22, 1958, in accordance with clause (a) of section 301 shall be held by the United States in trust for the Navajo Tribe of Indians;

(b) provide that all lands identified by the report under section 302 to have been used and occupied by Hopi Indians on uly 22, 1958, in accordance with clause (a) of section 301 shall be held by the United States in trust for the Hopi Indian Tribe;

(c) provide that all lands identified by the report under section 302 to have been used and occupied by Hopi Indians on July 22, 1958, in accordance ance with clause (b) of section 301 shall be subject to easements in favor of the United States in trust for the Hopi Indian Tribe, which shall be defined as to the area, nature, and extent of use according to the uses made on or about July 22, 1958;

(d) fix the amount of compensation to which the Hopi Tribe shall be entitled if it receives under this section surface interests in land whose total appraised value is less than one-half of the surface interests in the joint-interest area, the amount payable being the appraised value of such one-half interest less the appraised value of the surface interests conveyed. SEC. 305. The order provided for in section 304 shall be final, except that any part aggrieved by the Commission's determination of value under subsection (d) of section 304 shall be entitled to review thereof by filing a petition with the clerk of the United States District Court for the District of Arizona within sixty days from service of the order. The district court thereupon shall have jurisdiction to review said determination which shall constitute prima facie evidence of the facts and values established thereby, and the court shall, as soon as prac ticable after hearing the parties, enter a decree confirming, modifying, or rejecting the Commission's determination. The decree so entered shall be appealable in the same manner and within the same time period as any other final judgment of the district court. Petition for review or other proceedings hereunder shall not affect the finality of the Commission's findings pursuant to subsections (a), (b), and (c) of section 304.

SEC. 306. Upon determination of the amount of compensation due the Hopi Tribe under the provisions of section 304 or 305 of this Act, the Secretary of the Interior shall loan an amount not to exceed $18,000,000, without interest, to the Navajo Tribe subject to the following conditions:

(a) that within six months following a final determination of the compensation due the Hopi Tribe under the provisions of sections 304 and 305 of this Act, the Navajo Tribe shall pay the full amount of said compensation to the Hopi Tribe; and

(b) that the Navajo Tribe shall repay the loan by paying to the United States the proceeds derived by the tribe by the exploitation of the mineral resources described in section 308, but not less than $500,000 annually. SEC. 307. Upon execution of the agreement provided for in section 306, the order of the Secretary of the Interior issued under the provisions of section 304 shall take effect.

SEC. 308. The United States shall hold in trust for the joint use and benefit of the Navajo and Hopi Indian Tribes all of the subsurface rights, interests, and estates in the joint-interest area, including all coal, oil, gas, and other minerals within or underlying said land, and such rights, interests and estates shall be managed jointly by the Hopi and Navajo Tribes, subject to supervision and approval by the Secretary of the Interior as otherwise required by law, and the proceeds therefrom shall be divided between the said tribes, share and share alike.

TITLE IV-SEGREGATION OF HOPI INTEREST IN NAVAJO RESERVATION

SEC. 401. Hereafter the United States shall hold in trust exclusively for the Hopi Indian Tribe and as a part of the Hopi Indian Reservation all surface and subsurface rights, interests, and estates in and to the following described lands which comprise those portions of the lands described in the Act of June 14, 1934 (48 Stat. 960), outside of the 1882 Executive order reservation, on which the Hopi Tribe was located on the date of said Act:

Beginning at the northwest corner of township 31 north, range 11 east, Gila and Salt River meridian; thence west 1 mile; thence south 8 miles; thence east 4 miles; thence north 2 miles; thence east 4 miles; thence north 6 miles; thence west 7 miles to place of beginning containing approximately 35,200 acres, and which will be when surveyed sections 1 and 12 of township 30 north, range 10 east; sections 4, 5, 6, 7, 8, and 9 of township 30 north, range 11 east; all of township 31 north, range 11 east; and sections 6, 7, 18, 19, 31, and 36 of township 31 north, range 12 east.

The conveyance of exclusive rights in the Hopi Tribe to the above-described lands shall constitute a full and complete settlement of any right of the Hopi Tribe to any of the lands described in the Act of June 14, 1934 (48 Stat. 960).

TITLE V-AUTHORIZATION OF APPROPRIATION

SEC. 601. There is authorized to be appropriated $18,000,000 for the loan as provided in section 306 of this Act, and $250,000 to cover the cost of appraisals and the administrative expenses of the Navajo-Hopi Settlement Commission.

Hon. JAMES A. HALEY,

U.S. DEPARTMENT OF THE INTERIOR,
Washington, D.C., May 14, 1973.

Chairman, Committee on Interior and Insular Affairs,

House of Representatives,
Washington, D.C.

DEAR MR. CHAIRMAN: This responds to your request for the views of this Department on H.R. 5647, a bill "To authorize the partition of the surface rights in the joint use area of the 1882 Executive Order Hopi Reservation and the surface and subsurface rights in the 1934 Navajo Reservation between the Hopi and Navajo Tribes, to provide for allotments to certain Paiute Indians, and for other purposes," and H.R. 7679, 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."

Last year we supported H.R. 11128 as one possible solution to this dispute, while at the same time noting that there might be other equally viable solutions, because we felt that we had an emergency situation. At that time we did not foresee a court decision implementing the Hopis' rights for some time. Since then, as you know, the Arizona District Court has ruled that the United States plan for giving the Hopis true joint use of the disputed area should be put into effect, and actions to that end are under way. Under these circumstances, we believe that no bill should be enacted. As the court's order unfolds, the Navajos will be required to reduce their livestock in the joint-use area to one-half of its carrying capacity. We believe that this action will go a long way toward solving the tribes' dispute and that the rest should be left to the tribes themselves. It would certainly be appropriate for Congress to monitor the progress obtained pursuant to this order. We plan to do the same.

We recognize, however, that there is a good deal of sentiment in favor of settling the dispute by means of a partition into two or more parcels. If that is the route which the Congress adopts, we recommend that it be done by giving jurisdiction to partition to the District Court in Arizona. This court has years of experience and expertise to draw upon in this matter, and we believe it is the logical entity to decide upon and carry out a partition.

In addition to the outright partition of the joint-use area which we recommended last year, we suggested that the possibility of arbitration be considered. H.R. 7679 does establish and arbitration procedures. As we stated above, however, contrary to our expectations of last year the court has rather speedily taken this matter in hand, and we would prefer to let the court's present order prevail or in the alternative to give the court jurisdiction to partition. However, should the Congress prefer the arbitration procedure, we offer several amendments which we believe would improve H.R. 7679.

We believe that H.R. 5647 is the least preferable alternative. However, in the event that it becomes the choice of Congress we recommend several amendments.

I. HISTORICAL BACKGROUND

On December 16, 1882, President Chester A. Arthur signed an Executive Order establishing a reservation in the Territory of Arizona for the use and occupancy of the Hopi and such other Indians as the Secretary of the Interior saw fit to settle thereon. Even as early as this date, approximately 300 Navajos were living on this land. The number grew steadily over the years; by 1930 there were 3,300 Navajos and by 1958, 8,800. Relations between the two tribes were often hostile. In 1891, officials of the Department of the Interior drew a boundary line, reflecting the location of most of the Hopis, which the Navajos were forbidden to cross. The Navajos have conceded that the Hopis have exclusive rights to the land within this boundary, and it is not involved in either bill.

Although several Administrations comtemplated removal of all Navajos from the reservation, this action was never taken. By the 1920's it was assumed that all Navajos living on the reservation had been settled thereon by an implied exercise of the Secretary's discretion to settle other Indians on the reservation. On February 7, 1931, a joint letter from the Secretary of the Interior and the Commissioner of Indian Affairs to a special Indian commissioner who had been asked to make a recommendation on the Hopi-Navajo problem effected an implicit legal settlement of all Navajos then residing on the portion of the reservation which lies outside the exclusive Hopi section.

By the Act of July 22, 1958 (72 Stat. 403), Congress authorized each tribe to institute or defend an action against the other "for the purpose of determining the rights and interests of such parties in and to said lands and quieting title in the tribes or Indians establishing such claims pursuant to such Executive order as may be just and fair in law and equity. . .". The result of this authorization was Healing v. Jones, 210 F. Supp. 125 (D. Ariz. 1962), aff'd 373 U.S. 758 (1963), in which a three-judge court held, inter alia: (1) that the Navajo and Hopi Tribes have joint, undivided and equal rights and interests in that portion of the reservation which lies outside the exclusive Hopi area; and (2) the court was without jurisdiction to partition the area held jointly.

The Navajo Tribe has exercised exclusive control of the joint-use area for all practical purposes, however-including surface leasing and granting rights-ofway without consulting the Hopi Tribe-since the 1962 decision. In March 1970, the Hopi Tribe petitioned the district Court to issue a writ of assistance enforcing the Hopi rights to the joint-use area. The Court dismissed this petition

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in August 1970, on the ground that it had no jurisdiction over the question of tribal control of the disputed area. On December 3, 1971, the Court of Appeals for the Ninth Circuit reversed this decision, holding that the District Court has authority to issue a writ of assistance and remanded the matter for further proceedings. On May 22, 1972, the U.S. Supreme Court denied the Navajos' petition for a writ of certiorari.

On October 14, 1972, the District Court issued an order directing the Navajo Tribe, inter alia, to: afford the Hopi Tribe its proper joint use of the disputed area; reduce its livestock in the joint-use area to the point where the Navajo Tribe is using no more than one-half the carrying capacity of the area; and administer the area jointly with the Hopi Tribe. The United States was ordered, inter alia, to submit plans for effectuating this order. On the same day the court issued a writ of assistance commanding its United States Marshal to serve a copy of the foregoing order upon the Navajo Tribe. The Navajo Tribe appealed from the court's order and then, at the court's request, submitted an alternative plan to implement that order. On April 23, 1973, the court reject the Navajo plan and adopted the United States' plan for achieving true joint-use of the disputed area. Inter alia, the plan adopted provides for removal of all livestock from the jointuse area save that essential for daily livelihood and for platting of new management units for use in future land recovery programs. It is important to note, however, that this plan does not effect a partition of the joint-use area, and the District Court's holding that it lacks the power to partition still controls its disposition of the case.

These bills involve two other matters. First, when the boundaries of the Navajo Reservation in Arizona were established, by the Act of June 14, 1934 (48 Stat. 960), vacant land within the boundaries was permanently withdrawn for the benefit of the Navajos and such other Indians as were already located thereon. (Thus, unlike the executive order creating the 1882 reservation, this legislation granted contemporaneous rights in the reservation area to more than one tribe.) Several Hopi Indians were then located in an area, known by the village names of Moencopi and Tuba City, which lies between these villages and the reservation. The coexistence of the two tribes in this area has also been a source of controversy and quarrels.

Second, also within the 1934 reservation are located certain Paiute Indians whose use dates back to antiquity. Virtually identical sections in the two bills10 in H.R. 7679 and 6 in H.R. 5647—would provide for allotments to the Paiute Indians in accordance with the General Allotment Act of February 8, 1887.

II. SOLUTION BY JUDICIAL PARTITION

As stated above, we would prefer that as to all three controversies-1882 Reservation, 1934 Reservation, and Paiute residence-no bill be enacted. We recognize that the court's order covers only the first of these disputes, but we do not believe that either of the other problems is grave enough to warrant a legislative remedy at this time.

If the Committee should decide, however, not to accept our recommendation that the present court order be allowed to operate without legislative interference, we would recommend that the Court be given authority to partition the 1882 Joint-Use Area. This could be accomplished by amending the Act of July 22, 1958 (72 Stat. 403) by adding the following section thereto :

"Sec. 4. Any area in which it is determined that the Navajo Indian Tribe and the Hopi Indian Tribe have a joint or undivided interest may be partitioned between such Tribes by the United States District Court for Arizona according to the Court's determination of fairness and equity and the interest apportioned to each tribe shall become part of its reservation: Provided, however, that the last sentence of section 1, supra, shall not apply to the partition authorized under this section."

III. SOLUTION BY ARBITRATION

Should the Congress decide that arbitration is the most desirable means of settling the Hopi-Navajo dispute, we offer the following recommendations concerning H.R. 7679.

H.R. 7679 would solve the dispute by directing the Chief Judge of the United States District Court for the District of Columbia to appoint a Navajo-Hopi Board of Arbitration. The Board would be composed of three members, none of whom could have any interest in the outcome of the dispute. Up to $500,000 could be appropriated for the Board's expenses. The Board would contact the