Hopi and Navajo tribal councils, requesting them each to appoint within 30 days a negotiating team of up to six members. If within 180 days after the first negotiating session held by the Board the parties reached an agreement on the settlement of the dispute, such agreement would be reduced to writing, referred to the Attorney General for legal scrutiny, modified by the Board if necessary to conform to the Attorney General's advice, forwarded to the Secretary of the Interior, and in turn submitted to the Congress. If within 60 days neither House of Congress passed a resolution disapproving such an agreement, it would attain the force of law and become a binding and conclusive settlement of the dispute. Should the parties fail to reach agreement within 180 days, the Board would compel each to submit its last best offer. The Board would select the most equitable of the two offers and handle it as it would an agreement made within 180 days (see supra). Should either or both of the parties fail to comply with the Board's mandated procedures, the Board would devise its own settlement, one which it viewed as the most equitable that could be obtained. Thereupon the Board would handle this settlement as outlined supra. The bill provides that no agreement or provision therein agreed to by both tribes shall be deemed to be a taking of property by the United States and thus compensable under the due process clause of the Fifth Amendment.

H.R. 7679 sets several guidelines for the use of the Board and the Attorney General in arriving at and reviewing a settlement. Inter alia, any division of the joint-use area which results in an unequal share to one party shall be compensable out of the subsurface income of the other party, appropriations under the Act, or both.

Any settlement which resulted in relocation of members of either party to lands apportioned to the other party would provide funds for resettlement of such members, including reimbursement of resettlement costs and purchase of nonmovable improvements left by resettled persons. For purposes of resettlement and related compensation, the bill would authorize $16,000,000 to be appropriated. Regardless of any settlement, the Secretary would be authorized and directed to reduce livestock grazing in the joint-use area to the carrying capacity of the lands within one year of enactment and to institute such conservation methods as will rehabilitate the land. He would also be authorized to engage in the survey, location of monuments, and fencing of boundaries of any lands partitioned pursuant to the settlement. The bill would authorize $10,000,000 to carry out the purposes mentioned in this paragraph.

We recommend the following amendments to H.R. 7679.

In section 1(a), we see no reason for having the Board members appointed by the Chief Judge of the United States District Court for the District of Columbia rather than by the Chief Judge of the District Court of Arizona which has jurisdiction over the area.

The Arizona Court has had considerable experience with the dispute and should be in a better position to choose appropriate Board members. Therefore, we suggest that in the first sentence of section 1(a), "Arizona" be substituted for "Columbia".

To provide for the filling of any vacancies which may occur in the Board's membership due to death, illness, or otherwise, we suggest that a sentence such as the following be added at the end of section 1(a):

"The Chief Judge shall promptly appoint Board members to fill any vacancies which may occur in the Board's membership."

Section 1(d) requires that at least one Board member shall be present during the negotiating sessions. Since the Board members are responsible for determinations as to the progress of the negotiation as provided in section 2(d) and for the selection or development of a settlement plan under section 4, we believe that all the Board members should be present at the negotiating sessions scheduled by the Board. Therefore, we recommend that section 1(d) be rewritten in a manner such as follows:

"(d) All Board members shall attend the negotiation sessions provided for in section 2(c) except in the case of illness or other extenuating circumstance. Any formal action or determination of the Board shall require the agreement of a majority of the Board members."

In order to assure the existence of the negotiating teams until such time as the Board completes its tasks, we recommend that in section 1(e) the words "and the negotiating teams" be inserted after "Board".

To remove unnecessary language and in line with our comment below concerning section 3(a) and the Board's submitting its report to the Congress, we

suggest deleting from section 1(e) the words "with the Secretary of the Interior (hereinafter referred to as the 'Secretary')".

We suggest that the appropriation authorization in section 1(f) be rewritten as set out below to take into account the fact that although the Board will have a life of a year or less, its life may start in one fiscal year and end in the next. In addition, the amount authorized should be changed to "such amounts as may be necessary" to assure adequate funds for reimbursable services from Federal agencies. It should be noted that the Interior Department may be called upon to provide administrative and technical assistance to the Board and much of this would have to be on a reimbursable basis. The rewritten section would be as follows:

"There is authorized to be appropriated such sums as may be necessary for the expenses of the Board, such amount to be available in the fiscal year in which it is appropriated and in the following fiscal year."

To provide a liaison between the Board and the Secretary of the Interior which would facilitate the provisions of assistance and advice to the Board, the bill should provide for the designation of a representative of the Secretary of the Interior to the Board. This could be accomplished by adding a new section 1(g) such as the following:

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(g) The Secretary of the Interior (hereinafter referred to as the 'Secretary') shall appoint a liaison representative to the Board who shall attend negotiating sessions and facilitate the provision of information, advice and assistance requested by the Board from the Interior Department."

To set out more clearly the role of the negotiating teams as representing their tribes and to provide for the possible selection by a tribe of a nontribal member (such as its legal counsel) as a member of their negotiating team, we recommend that in section 2(a) the phrase "team from each tribe" be changed to "team representing each tribe".

To provide for the filling of vacancies on the negotiating teams, a sentence such as the following should be added at the end of section 2(a):

"Each tribal council shall promptly fill any vacancies occurring on its negotiating team".

In line with the preceding change, section 2(b) should be revised by inserting after "select and certify such team" the words ", or to select and certify a replacement member in the case of a vacancy,".

We suggest that section 2(c) be changed to indicate that Flagstaff, Arizona, will be the site of the negotiation sessions unless otherwise agreed to by the Board and the teams. This is consistent with the fact that the principal source of records and information regarding the disputed area will be the Flagstaff Office of the Bureau of Indian Affairs which has been established to administer the disputed area. In addition, such a provision solves any problem resulting from the teams' disagreeing as to what is a "convenient" place for the sessions. To accomplish this, section 2(c) could be rewritten as follows:

"(c) Within fifteen (15) days after formal certification of both teams to the Board, the Board shall schedule the first session of the negotiations at Flagstaff, Arizona. Thereafter, negotiation sessions, conducted under the guidelines established by this Act, shall be scheduled at Flagstaff or at any other place by agreement of the Board and the teams as long as at least one such session is held biweekly."

To preclude the Board's having to wait the full 180 days in the event that the parties reach an impass without clearly failing "to bargain in good faith" we suggest that section 2(d) be rewritten as follows:

"(d) In the event that either or both negotiation teams fail to attend two consecutive sessions or, in the opinion of the Board, either fails to bargain in good faith, or an impass is reached, the provisions of section 4 (c) shall become operative."

To provide for the possibility of a disagreement within a negotiation team, we suggest the addition of a section 2(e) such as follows:

"(e) In the event of a disagreement within a negotiation team, the majority of the team shall prevail and act on behalf of the team unless the resolution of the tribal council certifying the team specifically provides otherwise."

For purposes of clarification, in the first sentence of section 3(a) the phrase "signed by the parties" should be changed to "signed by the members of the negotiation teams" because section 1(a) states that "parties" refers to the Navajo and Hopi Tribes.

We believe that the Board should receive the views of the Secretary of the Interior on the proposed agreement under section 3(a) since he may be involved in carrying out the agreement. In addition, the expertise of his staff may enable him to provide the Board with significantly helpful information or views. Therefore, we suggest that in the second sentence of section 3(a) there be inserted “(1)” following “agreement to" and before the period there be inserted "and (2) the Secretary who shall advise the Board on the aspects of the agreement involving him and such other aspects as he deems appropriate."

In the third sentence of section 3(a), the word "offer" should be changed to "agreement" and following "Attorney General" there should be inserted the words "and the Secretary".

We believe that the negotiation teams should have an opportunity to review and approve their agreement as modified by the Board to conform to the advice of the Attorney General and the Secretary. Such a review is only fair as the modifications could conceivably alter the basis of agreement. In addition we believe that the report of the Board should be submitted directly to the Congress with copies provided to the Attorney General and the Secretary. Further the Attorney General and the Secretary should provide the Congress with their views on the Board's report. In line with the foregoing, we recommend that the last two sentences of section 3(a) be deleted and that the following be added in place thereof:

"The Board shall provide the negotiation teams with copies of such modified agreement for their approval and signatures as above. If the teams approve and sign the modified agreement, the Board shall transmit it, together with a report thereon, to the Speaker of the House of Representatives and to the President of the Senate. The Board shall provide copies to the Attorney General and the Secretary, each of whom shall provide a report thereon to the Interior and Insular Affairs Committees of the Senate and House of Representatives."

Rather than an action by just one house of Congress, we believe that an enactment should be required to overturn the Board's action.

Therefore, in section 3(b) the words "neither the Senate nor House of Representatives passes a resolution" should be deleted and replaced with the words "a resolution is not enacted".

In section 4(a) the words "the parties" should be changed to "the negotiation teams", and in the first sentence of section 4(b) the word "parties" should be changed to "negotiation teams" in line with our comments on section 3 (a) above. In line with our recommended change in section 1(e), we suggest deletion of the last sentence of section 4 (a).

For purposes of simplification and to eliminate unnecessary language we recommend deletion of all of section 4(a) after the first sentence and substitution of the following sentence:

"Thereafter, the Board shall follow the procedure set out for agreements in section 3(a) except that the modified offer need only be submitted for approval and signature to the negotiation team which made the offer. The provisions of section 3(b) shall also supply to the decision and report of the Board under this section".

In line with the above changes to section 4(b), the last sentence of section 4(c) should be changed by adding the following at the end thereof: "except that the modified plan need not be submitted to either party for approval if they were both in default under section 2(b) or 2(d)".

We believe that the provision in section 5 which declares an agreement reached by the parties not to constitute a taking under the Fifth Amendment is acceptable and constitutional. If such an agreement resulted in one party's receiving less than an equal share of the disputed area, nonetheless that party would have acquiesced in the agreement and could not be heard to claim that its property was taken. On the other hand, in the case of the imposition of a plan on a party by the Board under section 4, it is our understanding that an aggrieved party could sue the United States.

The date "September 17, 1967" in section 6(e) apparently should be "September 28, 1962" which is the date of the District Court decision in Healing v. Jones. In addition, we believe that the word "and" following "1882" should be the word "is".

In section 6(f) (2) the word "Hopi" should be "Hopis" and "such Act"" should be "this Act".

The word "considered" should be deleted from the last sentence of section 6(f). In section 7 the word "the" should be inserted following “(a)” and the word "a" should be inserted following “(b)".

Section 11, which directs the Secretary to reduce livestock in the joint use area to its carrying capacity and to restore grazing potential of the area to the maximum extent feasible, is a new provision which did not appear in H.R. 11128 as introduced. The Secretary has already been ordered by the Arizona District Court to carry out the goals of section 11. By order of the court we have submitted a plan for livestock reduction which has been adopted by the court and incorporated into its mandate. Essentially, this plan involves the management of livestock in a dry-lot operation by a joint Hopi-Navajo corporation. We believe that the funds needed for rehabilitation of the joint-use area can be obtained by the normal annual appropriation procedure. Section 11 also includes among its purposes-for which part of the $10 million to be appropriated under that section would be used-the survey, location of monuments, and fencing of boundaries of any lands partitioned under the settlement provided by the arbitration procedure of this bill. We believe that these are matters which can be deferred until such a participation may be effected and that there is no need to appropriate funds for such purposes at this time. Therefore, we believe that the funds authorized to be appropriated under this section should not be set at a fixed amount. We recommend that the last sentence of section 11 be rewritten to read as follows: "There is authorized to be appropriated such sums as may be necessary to carry out the provisions of this section.”

We recommend that section 16 be amended to include more specific provisions designed to ease the hardship of any relocation of Hopis and Navajos which may be required under a plan adopted pursuant to section 3 or 4. Such a relocation of Hopis and Navajos would be analogous to a Federal taking of real property, and, as we have indicated in the history of the dispute set out above, the United States bears some of the responsibility for the current status of the 1882 Reservation. Therefore, we recommend that the kind of benefits provided by the Uniform Relocation Assistance and Land Acquisition Policies Act be applied to this case, if modified to provide for incentive to encourage resettled persons to move, as set out in a new section 16, which would read as follows:

"SEC. 16. (a) If the plan adopted pursuant to Section 3 or Section 4 requires the relocation of any Navajos or Hopis, the United States shall purchase from each head of a household his habitation and other improvements owned by him on the area from which he is being required to move. The purchase price shall be the fair market value of such improvements.

(b) In addition to the payments made pursuant to subsection (a), the Secretary shall

(1) Reimburse each head of a household and his family moved pursuant to this Act for their actual reasonable moving expenses as if they were displaced persons under section 202 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (84 Stat. 1894).

(2) Pay to each head of a household and his family moved pursuant to this Act the amount, if any, not in excess of $15,000 which when added to the fair market value of the dwelling which is a decent, safe, and sanitary dwelling adequate to accommodate such displaced household, provided, however, that the additional payment authorized by this subsection shall be made only to such a displaced person who purchases and occupies a replacement dwelling which is decent, safe and sanitary not later than the end of the 1 year period beginning on the date on which he receives from the Secretary final payment of all costs of the acquired dwelling, or on the date on which he moves from the acquired dwelling, whichever is the later date.

(c) In implementing subsections (b) (1) and (b)(2) of this section, the Secretary shall establish standards consistent with those established in the implementation of the Uniform Relocation Assistance and Real Property Act of 1970.

(d) The Secretary is authorized to dispose of dwellings and other improvements acquired pursuant to this Act, in such manner as he sees fit including resale of such improvements to persons moved pursuant to this Act at prices no higher than their acquisition costs.

(e) In addition to the above payments, the Secretary shall make additional payments according to the following schedule:

(1) The sum of $5,000 to each head of a household who prior to January 1, 1975, contracts with the Secretary to relocate. Such payment shall be made upon the date of such relocation as determined by the Secretary.

(2) The sum of $4,000 to each head of a household who between January 1, 1975, and July 1, 1975, contracts with the Secretary to relocate. Such payment shall be made upon the date of such relocation as determined by the Secretary.

(3) The sum of $3,000 to each head of a household who between July 1, 1975, and July 1, 1976, contracts with the Secretary to relocate. Such payment shall be made upon the date of such relocation as determined by the Secretary,

While adhering to the view that arbitration is the best method of resolving the controversy over the joint-use area, we offer the following recommendations concerning H.R. 5647, should that be the solution adopted by the Congress.

Section 5 of H.R. 5647 deals with the amount of land from the 1934 Navajo Reservation to be granted to the Hopi Tribe and included within their reservation. The amount of land granted the Hopi Tribe under the section is significantly greater (by 73,600 acres) than that provided in section 5 of H.R. 11128 as introduced in the 92nd Congress. We believe that the latter original provision is an equitable division and we would recommend its use instead of the current provisions of section 5 of H.R. 5647.

Section 8 of H.R. 5647 also differs from section 8 of H.R. 11128 as introduced in the 92nd Congress in reducing from ten to five years the time allowed for removing the families to be dislocated by the legislation. We would recommend the ten year period as being more feasible. However, we do not recommend that the Act require removal of approximately ten percent of the Navajo families per year as provided in H.R. 11128 as introduced. Rather, we recommend that no rate of removal be specified.

Finally, we reiterate the recommendation made supra in connection with H.R. 7679 that the kind of benefits provided by the Uniform Relocation Act be applied to movement of resettled Indians. See the new section which we provided supra, which would replace section 11 in H.R. 5647.

The Office of Management and Budget has advised that there is no objection to the presentation of this report from the standpoint of the Administration's program.

Sincerely yours,

JOHN KYL, Assistant Secretary of the Interior.

Mr. MEEDS. Each of the bills before us seeks a different approach to resolve the longstanding dispute between the two tribes. At issue here is what has been called the greatest title problem of the West, involving over 2 million acres of land in northern Arizona.

Over the years, other issues have sprung up around the primary issue, which we must also consider and attempt to resolve. The dispute has grown with the years giving rise to increasing conflict, frustration, and animosity.

I think it is safe to say that the Federal Government has an obligation to take steps to resolve the dispute once and for all. The record is replete with admissions of the administration witnesses that the Federal agencies and officials responsible for administration of Indian affairs have, throughout the dispute, failed to act forthrightly to prevent the dispute or ameliorate the problems growing out of it.

I will not go into the history or details of the dispute. The magnitude, complexity, and seriousness of the problem will become apparent to us as we take testimony from the two parties and from the administration.

In the last Congress, the committee considered and the House passed a bill providing for a solution to the problem. The Senate failed to act on the bill and it is here before us again.

At that time, a voluminous record was made both in the House and the Senate. Printed hearings by both committees are available which contained detailed statements and documents on the history of the problem and its ramifications. The subcommittee feels that neither is it necessary nor would it be productive to cover the ground in such detail again.