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Box 2574 :: :: Olympia, Wa Fido Net 1:352/333 :: :: 98507-2574 206-786-9629 :: :: USA The Quarto Mundista BBS :: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 90-15003 JENNY MANYBEADS, et al. Plaintiffs-Appellants, vs. UNITED STATES OF AMERICA, et al. Defendants-Appellees. NAVAJO FAMILIES' RESPONSE TO THE AGREEMENT IN PRINCIPLE (A.I.P.), CONCERNS, COUNTER-PROPOSAL, AND REQUEST FOR FURTHER MEDIATION August 5, 1993 Lee Brooke Phillips, Attorney Big Mountain Legal Office 308 N. Agassiz P.O. Box 1509 Flagstaff, AZ 86002 (602) 779-1560 Bruce Ellison 816 St. Joseph St. Rapid City, SD 57701 (602) 348-9458 John Trebon 308 N. Agassiz Flagstaff, AZ 86001 (602) 779-1713 SUMMARY OF RESPONSE The Navajo families of the H.P.L. have been asked to accept or reject the Hopi Tribe's lease proposal by August 5, 1993. After several months of meetings and discussion between the families and the Hopi Tribe, it appears that a substantial majority of the 253 Navajo families who are currently full-time residents of the H.P.L. will vote to reject the Hopi proposal. Despite the good faith efforts by both the Navajo families and the Hopi Tribe, the Hopi proposal does not adequately address or resolve fundamental Navajo concerns that any settlement must be permanent, avoid forced relocation, and guarantee the religious rights and needs of the members of both Tribes. In addition, the Navajo families believe that any agreement to settle this complex and painful dispute must have the support of Congress, the State of Arizona, and the public. It is clear that the Hopi proposal does not have that support. The Navajo families believe that the land dispute must be settled. They request that Magistrate McCue continue his mediation efforts and ask President Zah and the Navajo Nation to make one final comprehensive settlement proposal on their behalf. The families' ask that the Navajo proposal be fair to the Hopis and that it include: 1. An offer of Navajo owned land to the Hopi Tribe, not public land, in exchange for a permanent accommodation for the Navajo families. The offer should provide the Hopi Tribe with substantially more land than it would provide to the Navajo families. The accommodation could include a combination of a H.P.L. boundary modifications or allotments. 2. A fair and generous settlement offer to resolve all pending 1882 area lawsuits between the Tribes once and for all. 3. An economic development package which could include development assistance, water, power, and right-of-way agreements to benefit the Hopi people. 4. A guarantee that Hopi People would have full and unimpeded access to religious shrines or sites and the right to gather eagles for religious purposes located anywhere on the Navajo reservation. 5. Other cooperative agreements with the Hopi Tribe that furthers the economic and social needs of both tribes. TABLE OF CONTENTS I. HISTORICAL BACKGROUND ................................ 1 A. INTRODUCTION ...................................... 1 B. MANYBEADS AND CONSTRUCTION LITIGATION ............. 2 C. MEDIATOR'S REQUEST FOR SETTLEMENT PROPOSALS ....... 3 D. NAVAJO COMPLIANCE WITH HOPI DEMANDS ............... 4 E. NAVAJO PROPOSAL ................................... 6 F. HOPI COUNTER-PROPOSAL ............................. 6 G. MAGISTRATE'S LAST TRIP TO HPL PRIOR TO SIGNING OF AIP ............................................ 8 H. LEASE WITH OPTION TO BUY .......................... 8 II. THE AGREEMENT IN PRINCIPLE (A.I.P.) .................. 8 A. PRESSURE TO SIGN AIP .............................. 9 B. THE TERMS OF THE A.I.P. ........................... 9 C. LEAK OF AIP ...................................... 14 D. RATIFICATION OF THE AIP BY THE NAVAJO NATION AND THE NAVAJO FAMILIES LIVING ON THE HOPI PARTITIONED LANDS ................................ 15 E. EDUCATING THE NAVAJO FAMILIES ON THE HPL ......... 16 F. NAVAJO CONCERNS AND EFFORTS TO SEEK A HOPI COMPROMISE ....................................... 17 G. MAGISTRATE McCUE SETS DEADLINES FOR NAVAJO FAMILIES TO RATIFY THE A.I.P. .................... 18 III. THE NAVAJO FAMILIES' RESPONSE TO THE A.I.P. AND THE HOPI PROPOSAL ................................... 19 A. THE RESPONSE ..................................... 19 B. THE NAVAJO FAMILIES ALTERNATIVE TO THE A.I.P............................................. 20 (i) C. A COMPARISON OF THE NAVAJO AND HOPI PROPOSALS ........................................ 22 1. THE NAVAJO PROPOSAL PROVIDES A PERMANENT SOLUTION TO THE LAND DISPUTE ....................................... 22 2. THE NAVAJO PROPOSAL AVOIDS FUTURE DISPUTES BETWEEN THE NAVAJO FAMILIES AND THE HOPI TRIBE. ........................... 22 3. THE NAVAJO PROPOSAL AVOIDS THE PROBLEM WITH FURTHER EVICTIONS OR RELOCATIONS. .................................. 22 4. THE NAVAJO PROPOSAL AVOIDS THE ISSUE OF ANNUAL RENT. ............................... 23 5. THE NAVAJO PROPOSAL DOES NOT INVOLVE THE USE OF PUBLIC LANDS. ..................... 23 6. THE NAVAJO PROPOSAL PROVIDES EQUAL PROTECTION AND RESPECT FOR THE RELIGIOUS CONCERNS OF BOTH TRIBES. ............ 23 7. THE NAVAJO PROPOSAL HAS A SUBSTANTIAL LIKELIHOOD OF RECEIVING SUPPORT FROM MEMBERS OF CONGRESS AND THE STATE AND PEOPLE OF ARIZONA. .............. 24 (ii) I. HISTORICAL BACKGROUND A. INTRODUCTION The Navajo-Hopi-United States land dispute arose from a series of U.S. government actions, dating back to 1882, that have imposed arbitrary boundaries to the Navajo and Hopi reservations that fail to take into account the history of the land and how it has been used in recent times. The legal basis behind the current dispute arose in 1882, when President Chester A. Arthur signed an executive order establishing a reservation "for the use and occupancy of the [Hopi], and such other Indians as the Secretary of the Interior may see fit to settle thereon." The broad reference clearly encompassed the Navajos, who the U.S. government knew to occupy many of the sites in the new reservation. The minimal degree of thought that was given to the actual land usage of the two Tribes is evident in the fact that the Executive Order was issued within a period of 16 days, and the reservation itself was a perfect rectangle -- one degree of latitude in height, and one degree of longitude in length. In 1958, 72 years after President Arthur's Order, Congress passed the first legislation authorizing a lawsuit to determine ownership of the 1882 Executive Order area. The Hopi Tribe sued the Navajo Nation within ten days of passage of this Act. In their lawsuit, the Hopi Tribe claimed exclusive ownership of the entire 1882 reservation. In 1962, the Court decided the case and formally recognized that the Navajo families living on the 1882 reservation were "such other Indians" who were "settled thereon" by the Secretary of Interior as set forth in President Arthur's Executive Order. Except for an area known as District 6, the Court declared the 1882 area to be owned jointly by the Navajo and Hopi, and left it to the parties to sort out how joint ownership would operate. No agreement could be reached. The 1974 Settlement Act was the next arbitrary "solution" imposed by the U.S. government on the Navajo Nation and Hopi Tribe. The 1974 Act directed that the 1882 area be partitioned into two equal halves, and authorized lawsuits between the Hopi, Navajo and federal government to resolve liability and damages with regard to the use of the land since 1962, as well as any inequality in value of the partitioned land. The 1974 Act again failed to take into account the actual historical or then-current use of this land. Although the Act appears to be written in neutral terms, directing all members of a Tribe located on land partitioned to the other Tribe to move, in reality, the overwhelming brunt of the burden has fallen on the Navajo people. Only 100 Hopis were subject to the government relocation program, while over 10,000 Navajo have been relocated, or are presently living on the Hopi-partitioned land ("HPL"). This fact alone demonstrates the extent to which the 1974 Act failed to (1) take into account the actual use of this land. The Act has been tremendously unfair to the thousands of Navajo people who have lived on the same land for generations beyond memory, yet are being forced to leave simply because they have lived on the "wrong side" of a boundary drawn without regard to the equities involved. The Ninth Circuit Court of Appeals was the first official government authority to recognize that there was something terribly wrong with the 1974 Act, and that there was an alternative to a law requiring forced relocation of traditional people from their ancestral homelands. The context of the Ninth Circuit's realization was in the cases of Manybeads v. United States, No 90-15003, and Masayesva v. Haskie, No. 90-15304. B. MANYBEADS AND CONSTRUCTION LITIGATION In 1988, Navajo families residing on land partitioned to the Hopi Tribe filed the Manybeads v. United States lawsuit in district court seeking relief from the 1974 law requiring them to relocate from lands they have occupied and used for generations. The Navajo families challenged the relocation law as unconstitutional because compliance with the law would force the families to violate their traditional religion. The district court dismissed the lawsuit ruling that the federal government had the authority to relocate Indians from federal land. The Navajo families then appealed to the Ninth Circuit. In a related case, Masayesva v. Haskie, the same district court ordered the Navajo Nation to dismantle several Navajo structures on the HPL. The district court held that the Navajo structures were not in compliance with existing court restrictions on repairs and improvements for Navajo housing on the HPL. Consequently, the structures were ruled to be "illegal. n The Navajo Nation appealed to the Ninth Circuit for review. The Ninth Circuit Court of Appeals scheduled oral argument for April 10, 1991. Raving been fully briefed on the constitutional arguments, the Court used the oral argument as an opportunity to express its interest in having the parties to the case reach a permanent solution to the dispute. The Court was clearly concerned that any Court-imposed settlement could interfere with the rights of the Navajo families to practice their religion, and would not resolve the underlying dispute between the Navajo and the Hopi. At the oral argument, the court focused on finding an alternative to Congress' relocation mandate. Justice Noonan asked Lee Phillips, attorney for the Navajo families: "Now you mentioned in your brief one interesting alternative. The money one does not seem to be very good, but there could be a (2) land exchange. Is there some land that could be given to the Hopis?" Justice Noonan further added in a comment to the lawyer for the Hopi Tribe: "All of those equities are fine but then get back to the destruction of their religion. I would have thought that despite the feelings between the tribes, the Hopis might also be desirous to respect the religion of the Navajos." And Justice Noonan stated to the lawyer for the U.S. government: "The question is now, can you make a reasonable accommodation? Could you sit down with the Hopis and work out a land trade? I don't see why not. Instead of destroying one small group, tiny group' 8 religion. You're going to trample on their religion because it is more convenient bureaucratically. It's a very distressing position to be in." Clearly, the Court was interested in a permanent solution. Later in the oral argument, the court asked all the parties if they would be willing to participate in settlement discussions. The parties agreed that they would participate. On May 10, 1991, one month after the oral argument, the Ninth Circuit Court of Appeals ordered the four parties - the Hopi Tribe, the United States, the Navajo Nation, and the Navajo families - to enter into settlement negotiations. Magistrate Judge Harry R. McCue from San Diego was appointed to be the mediator. C. MEDIATOR'S REQUEST FOR SETTLEMENT PROPOSALS On June 11, 1991, four parties met with Magistrate McCue at his office in San Diego to begin settlement discussions and establish a process for the mediation. However, the Hopi Tribe quickly made it clear that mediation would take place on its terms or not at all. Chairman Masayesva frequently repeated that the Hopi Tribe did not want or ask for the mediation. The Hopi Tribe threatened to walk out of the mediation if certain demands were not met. For instance, the Hopi Tribe demanded at the initial meeting that no one talk publically about the mediation or else they would walk out and end the mediation. This, and all other positions of the Hopi Tribe, were not subject to discussion or negotiation. Toward the end of the day, Magistrate McCue requested both the Navajo Nation, the Navajo families and the Hopi Tribe to (3) prepare and bring to the next meeting written settlement proposals. The next meeting was scheduled for June 20, 1991. At the June 20, 1991 meeting, the Navajo families and the Navajo Nation presented a joint comprehensive settlement proposal for a fair and permanent settlement. The Hopi Tribe negotiating team quickly rejected the Navajo proposal. It did 80 without consulting with the Hopi Tribal Council or the members of the Hopi Tribe. The Hopi Tribe, having confirmed with Magistrate McCue that there would be no final report of the negotiation proceedings, then proceeded to present its "proposal" for a settlement. The Hopi Tribe's "proposal" was a list of ten (10) demands the Navajo families and Navajo Nation had to comply with. The Hopi Tribe, stated that full compliance was necessary to establish Navajo good faith and indicated "the Hopi Tribe will not consider any counteroffer to this proposal." The Hopi Tribe refused to continue the negotiations until their demands were satisfied and then walked out of the negotiation room. D. NAVAJO COMPLIANCE WITH HOPI DEMANDS After the Hopi Tribe left, representatives of the Navajo Nation, various Navajo families, representatives of the United States, and Magistrate McCue were left to discuss the possibility of complying with the Hopi demands. Many of the demands listed by the Hopi Tribe were perceived as inflicting more human suffering on and being insensitive to the religious needs of the Navajo families. The other provisions also appeared insurmountable and onerous for the Navajo Nation. Clearly, the Hopi Tribe had selected items which were quite difficult and painful for the Navajo families and the Navajo Nation to perform. The Navajo families were concerned that the real purpose of the Hopi demands was to place insurmountable obstacles in the way of a genuine and permanent settlement. The list of Hopi demands included the following: 1. The signing of written statements by Navajo HPL families that the HPL is owned exclusively by the Hopi Tribe and that the Navajo families on the HPL are subject to Hopi civil and criminal jurisdiction. 2. The Navajo Nation's adoption of grazing regulations for the Navajo Partition Land. 3. The dismantling of the Coalmine Chapter House compound and the Big Mountain Survival Camp. (4) 4. The dismantling of the Mosquito Springs ceremonial hogan and certain Navajo structures at 56 sites throughout the HPL. 5. The dismantling of a "Navajo constructed" block wall at Cliff Springs which is on the Navajo Partition Land. 6. No development of any kind by the Navajo Nation or Navajo families on the Navajo reservation within a one mile radius of eagle nesting areas. 7. The completion of the HPL/NPL barbed wire boundary fence near Big Mountain. 8. The Hopi Tribe receiving 638 contracts from the federal government for the administration and enforcement of grazing jurisdiction for the entire HPL. 9. Free and uninhibited access by Hopis to all Hopi religious sites on the Navajo reservation. 10. The Navajo Nation's prompt payment and agreement not to appeal the Post Partition rent case decision once the district court rules. The demand for the completion of the barbed wire fence at Big Mountain was considered sacrilegious by Navajo families because the area at and around Big Mountain was considered sacred. Navajo families were also concerned that the construction of the barbed wire fence would cut them off from relatives and religious shrines. Also, the demand that the Mosquito Springs ceremonial hogan be dismantled was considered an affront to Navajo religion. The hogan was used by Navajo HPL families primarily for religious ceremonies and was the only such structure available to the community. The Hopi Tribe's demand that numerous Navajo structures at 56 different sites be dismantled was received as particularly insensitive and callous. These structures all had received some degree of repair or renovation, and the Hopi Tribe alleged that they were "illegal construction." However, many of the alleged offending structures were on the list because of basic minimal repairs to dilapidated structures needed for human shelter. For example, the Hopi Tribe was complaining of a shack covered with paper, plastic, and other items collected from a dump site. This bare minimal structure was used for human shelter in Coalmine Canyon because the Hopi Tribe generally would not approve of building an adequate size shelter that met minimum health and safety standards. Other structures complained of by the Hopi Tribe included outhouses, chicken coops, dirt dugouts used for human shelter, and abandoned vehicles. Despite the overwhelming difficulty of complying with the Hopi demands, the Navajo families and the Navajo Nation set out on (5) a program to comply with the Hopi demands. During the several meetings that occurred with Magistrate McCue and the HPL families to explain the Hopi Tribe's pre-conditions, the families were repeatedly informed that the only way to arrive at a comprehensive settlement which could return some of the HPL to the Navajo Nation, was to comply with the Hopi Tribe's demands. The Navajo families relied on these statements and reluctantly agreed to do what they could to comply with and satisfy the Hopi demands. During the approximately one year period in which the Hopi demands were being met, certain truths were uncovered. For instance, the Hopi Tribe had consistently blamed the Navajo for building a block wall around Cliff Springs to keep the Hopi out. In fact the wall was constructed by the U.S. Public Health Services to protect the health of local residents. By May of 1992, Magistrate McCue determined that the Navajo families and the Navajo Nation had substantially complied with the Hopi demands. The Hopi Tribe did not disagree with this determination. The Navajo Nation and the Navajo families were then prepared to begin the long awaited substantive negotiations. E. NAVAJO PROPOSAL On May 15, 1992, the Navajo Nation and the Navajo families presented a generous proposal to the Hopi Tribe for a permanent and comprehensive resolution of the dispute regarding the 1882 area, and issues elated to this dispute. The Navajo proposal sought to redraw the boundary lines 80 that Navajo families now required to relocate would not be required to move. Under this proposal, the Hopi Tribe would be given 389,000 acres of the CO- Bar Ranch in exchange for 289,000 acres of the HPL. The end result would be that the Hopi Tribe would get a 100,000 acre increase in its reservation. The Navajo proposal also attempted to include all other outstanding legal issues between the two Tribes in the 1882 Executive Order reservation and all monetary issues in the 1934 Act reservation litigation. In consideration for the settlement of all these outstanding issues, the Navajo Nation offered a payment of $20 million to the Hopi Tribe. F. HOPI COUNTER-PROPOSAL The Hopi Tribe rejected the Navajo May 15, 1992 proposal and offered a counter-proposal on June 23, 1992. The Hopi counter-proposal offered two lease options to Navajo HPL families: OPTION A, A person can remain where he/she is now and enter into a lease with the Hopi Tribe for as long as the person remains on the site. (6) This is non-renewable and does not include grazing rights. Option B, A person can move into an area near Big Mountain and enter into a twenty (20) year lease with the Hopi Tribe. This lease is renewable and includes grazing rights. The Hopi Tribe also offered to settle most of the 1882 Executive Order reservation cases and none of the 1934 monetary issues. The Hopi Tribe objected to settling the Peabody tax case which is one of the 1882 reservation related pending court cases. As consideration for the accommodations and settlement of cases, the Hopi Tribe demanded that it receive over 1.1 million acres of lands in trust, as well as an immediate payment of $10 million and substantial rent thereafter. It was estimated that the cost of acquiring the lands sought by the Hopi Tribe would be approximately $37.7 million. The specific request was for: 1. Hopi emergence point,"Sipapu", which is located on the Navajo reservation. (9,880 acres) 2. Expansion of area around Cliff Springs within which Hopi Tribe can collect fir branches from a 2-mile radius to a 10-mile radius. This site, for which the Hopi Tribe did not ask a transfer in trust status, is also located on the Navajo reservation. (201,062 acres) 3. CO-Bar Ranch with Peaks Ranch addition. (389,619 plus acres) 4. Hart Ranch. (102,640 acres) 5. Corridor between CO-Bar Ranch and HPL across the Navajo reservation. (359,600 acres) 6. Forest Service land lying between the City of Flagstaff and the Flagstaff Airport. (2,000 acres) 7. Cataract and Espee Ranches. (316,372 acres) 8. AJA Ranch. (105,840 acres) 9. Peaks Ski Area Finally, the Hopi Tribe requested a payment of $10 million and an annual rental payment of $200,000, increasing to $300,000 after ten years. (7) G. MAGISTRATE'S LAST TRIP TO HPL PRIOR TO SIGNING OF AIP On July 3, 1992, Magistrate McCue made a one-day trip out to four sites on the HPL by helicopter. Magistrate McCue went to Jeddito, Sandsprings, Coalmine, and Cactus Valley. At the meetings with the Navajo families, Magistrate McCue did not advocate either of the two lease options in the Hopi Tribe proposal, both of which were clearly unacceptable to the Navajo families. Rather he advocated a lease proposal with an option to buy. Magistrate McCue explained that his proposal was 'just like buying a car." One makes payments over a period of time and then, finally, one becomes the owner. With this explanation and support of McCue, many Navajo families indicated they would accept the "lease with an option to buy" proposal. Unfortunately, this was the last occasion for Magistrate McCue to visit the HPL to talk with Navajo families prior to the signing of the Agreement in Principle on October 30, 1992. It should be noted that Senator DeConcini appeared to embrace that concept at the February 10, 1993, Senate Select Committee on Indian Affairs Hearing on the AIP. H. LEASE WITH OPTION TO BUY On July 26, 1992, the Navajo Nation presented another proposal to the Hopi Tribe. This proposal included the lease with an option to buy concept advocated by Magistrate McCue during his July 3, 1992 trip to the HPL. A lease with an option would be the accommodation for the Navajo families. The Hopi Tribe would be compensated fairly for the rental and the exercise of the option. This proposal also provided for the settlement of many other outstanding legal issues between the two Tribes. The Hopi Tribe, after listening to the Navajo proposal, left the room to discuss the proposal amongst themselves. However, the Hopi representatives returned in only about twenty minutes to reject the Navajo proposal. The Hopi Tribe then got up and left the negotiating table. The Hopi Tribe declared that there was no purpose in continuing the negotiation discussions. II. THE AGREEMENT IN PRINCIPLE (A.I.P.) During the fall of 1992, the Field Solicitor for the Hopi Tribe, and the U.S. Department of Justice increased their pressure on the Navajo Nation to agree to settlement. In response to Hopi Tribe demands, the focus shifted from Magistrate McCue's proposal for a lease with an option to buy to one that allowed only leases as an accommodation for Navajo families. The Hopi Tribe also made several more demands and threatened to walk out again, this time permanently, if their demands were not met. The Hopi Tribe demanded the following from the Navajo Nation: (1) the CO-Bar Ranch; (2) the "Sipapu" in trust (8) for the Hopi Tribe; and (3) a corridor between the current Hopi reservation and the CO-Bar Ranch. The U.S. government representatives represented that if the Navajo Nation did not agree to these demands, including the lease accommodation, the U.S. government would re-commence its intensive livestock reduction efforts and housing repair restrictions on the Navajo HPL families. In the early fall of 1992, Magistrate McCue informed the negotiators that a deadline of October 31, 1992 had been set by the Ninth Circuit for reaching an agreement in principle. In the event the parties could not come to some framework for settlement, the mediation would end and the cases would return to the Ninth Circuit for a decision. A. PRESSURE TO SIGN AIP At this time, the Navajo team was faced with a serious dilemma. On one hand, if the Navajo team refused to sign the A.I.P. by the October 31, 1992 deadline, the mediation would end and the Navajo families would be denied any opportunity to participate in the settlement process in any meaningful way. On the other hand, if the Navajo Nation representatives and Mr. Phillips did sign the A.I.P., accepting the Hopi Tribe's "take it or leave position on a lease proposal, they would have to do 80 without an opportunity to consult with the Navajo families or to present the A.I.P. to the Navajo families prior to signing. In the final hours before the October 31, 1992 deadline, the decision was made by President Zah, Mr. Phillips and the other members of the Navajo team that they would have to sign the A.I.P., but that they would insist that any agreement was conditioned upon the Navajo families having an opportunity to review the A.I.P., to meet directly with the Hopi Tribe and then to have a chance to accept or reject the A.I.P. During the final hours of negotiation, the Hopi Tribe repeatedly promised that they would begin good faith negotiations with the Navajo families if the Navajo Nation and Mr. Phillips would sign an A.I.P. prior to October 31, 1992. B. THE TERMS OF THE A.I.P. The A.I.P. was signed on October 30, 1992. According to the express terms of the A.I.P., no action taken by the Navajo Nation or Mr. Phillips would be considered final action until the Navajo team had an opportunity to present the A.I.P. to the affected communities and to the Navajo Nation Council for ratification. The Navajo Nation mediation team and Mr. Phillips promised to provide their full support in presenting the A.I.P. to the Navajo Nation Council and the Navajo families. The parties agreed that the Navajo Nation, Mr. Phillips on behalf of the Navajo families, and the Hopi Tribe would ratify (9) the A.I.P. on or before November 20, 1992. The United States would ratify the A.I.P. on or before November 25, 1992. It was further agreed that if the parties did not ratify the A.I.P. by those dates that the A.I.P. would lapse without any obligation or liability to any of the parties. According to the terms of the A.I.P. the Hopi Tribe agreed to offer a 75 year lease to any Navajo family who was on "List A." "List A" is a list of Navajo families that the four parties to the mediation agreed were full time residents of the HPL and therefore eligible for accommodation as part of the Manybeads v. United States lawsuit. At the time the A.I.P. was signed, there were 253 Navajo families identified on "List A". In addition, there were another 317 Navajo families who were identified on "List B." "List B" was a list of Navajo families who also reside on the HPL but who are temporarily away from the HPL for purposes of employment, education, military service or other similar obligations. It was the Navajo team's position that the families on "List B" should also be included in any settlement with the Hopi Tribe. At the time the A.I.P. was signed, the Hopi Tribe refused to include the families from "List B" as part of the settlement. While there were 253 families identified on the mediation "List A," the Hopi Tribe refused to offer a lease to each of these families. Instead, the Hopi Tribe's position was that they would only offer 112 leases to the 253 "List A" families. It was the Hopi Tribe's position that where there were more than one family from the "List A" living at a particular homesite, that those families would have to live together or share the three acre lease area offered to that homesite. The Hopi Tribe's lease consisted of three acre homesites and up to ten acres of farming for each of the 112 homesites. The Navajo team objected insisting that three acre homesites were much too small for several extended families to occupy. The Hopi Tribe also agreed to offer limited grazing rights to the Navajo families. According to the Agreement In Principle, the Hopi Tribe agreed to provide a minimum of 2,800 sheep units to the Navajo Nation for the benefit of the Navajo families on the HPL. The Navajo Nation would then be responsible for allocating the grazing rights to the 253 families who were eligible for the Hopi Tribe's lease offer. The 253 "List A" Navajo families would therefore be eligible for an average of 11 sheep per family or 25 sheep per extended family homesite. Again, the Navajo team objected arguing that sheep are central to the traditional Navajo lifestyle and that families needed closer to 100 sheep to meet their minimal religious, cultural and dietary needs. Under the terms of the A.I.P., the construction freeze would be lifted and the Navajo families would be allowed to construct residential, farming, grazing or ceremonial structures on (10) their three acre homesite. In addition, those families who received a lease would be allowed to repair, restore and enlarge any existing structures on their homesite. According to the Hopi Tribe's proposal, the Navajo families would be allowed to construct the permitted structures after making an application to the Hopi Tribe and the Hopi Tribe would process and grant the application within seven days. Due to the inhumane living conditions which result from decades of a court ordered construction freeze on the H.P.L., this provision was of major importance to the Navajo team. The Agreement also allowed for the development of infrastructure on the HPL and provided that where such infrastructure was constructed, it would be made available to all HPL residents in the area on an equitable and non-discriminatory basis. All Navajo families who applied for and received a lease would have to agree to be subject to the criminal and civil jurisdiction of the Hopi Tribe with the exception of certain limited issues which are entirely Navajo related, e.g., probate, domestic relations, child custody, adoption, tribal benefits and services. In those situations Navajo law would apply and the Navajo courts would have jurisdiction over such matters. All parties also agreed to develop a review procedure which was to be established for resolving future disputes between the Navajo families and the Hopi Tribe. The details of the dispute resolution mechanism were to be worked out by the Navajo Nation, the Navajo families and the Hopi Tribe. The Hopi Tribe later took the position that the existing Hopi court system was sufficient to resolve future disputes. The A.I.P. allowed for the transfer of a lease from Navajo parents to their children or to other eligible persons provided that those persons resided on the HPL at the time of transfer or were away from the HPL temporarily for purposes of school, work, illness, military service or other similar situations. Although the lease could be transferred, the 75 year term of the lease would not be extended. The A.I.P. provided several ways in which the Navajo families' lease could be terminated for cause. Cause was defined to include the non-use of the lease area for a period of time exceeding two years; a violation of substantive material terms or conditions of the lease; a conviction for any number of felonies as defined by federal or Hopi law; or the failure to pay rent. Any Navajo family which accepted a lease would also agree to waive their right to relocation benefits after a three year period. Individual Navajo families would have up to one year after Congressional enactment of any final settlement agreement before they would have to execute the lease form. If Navajo families did (11) not accept the lease and execute the lease form within one year after Congressional enactment of the final settlement, the United States agreed that it would build relocation housing off the H.P.L. for those families and relocate them. Finally, the United States agreed it would provide this house and relocate the families within a three year period. The details of the rent that was to be paid to the Hopi Tribe was left for further negotiations between the two Tribes. The understanding of the parties was that the Navajo Nation would be responsible for the payment of rent for the benefit of the Navajo families. The parties agreed that the A.I.P. would be implemented on an interim basis from October 31, 1992, the date of the signing of the Agreement, until the effective date of the implementing legislation. It was expressly discussed and the Navajo team understood that the parties would implement on an interim basis those portions of the A.I.P., such as the lifting of the construction freeze on the HPL, while the mediation continued. The agreement to lift the construction freeze on an interim basis was a primary part of the Navajo team's decision to sign the A.I.P. and to continue the mediation process. The parties agreed that the Hopi Tribe would guarantee that the Navajo families would be provided equal treatment in their dealings with the Hopi Tribe. The United States agreed to continue to provide the Manybeads plaintiffs with notice of any proposed government fencing or construction projects on the HPL and to otherwise comply with Section 106 of the National Historic Preservation Act. The United States had been ordered to provide this type of notice after the Navajo families sued the United States in the United States v. Attakai. In the Attakai case the federal court had issued a temporary restraining order and then a preliminary injunction against the United States after finding that the federal government was providing notice to the Hopi Tribe but not to the Navajos prior to construction on the HPL and, as a result, sites of historical and religious significance to the Navajos had been destroyed or disturbed. As part of the A.I.P., the parties agreed to dismiss the Manybeads case and numerous lawsuits which are currently pending between the Tribes and the federal government. In exchange for the agreement to dismiss the lawsuits and to provide the Navajo families with the 75 year lease, the Hopi Tribe again had a long list of demands: (1) The Hopi Tribe required that the Navajo Tribe purchase the 389,619 plus acre CO Bar Ranch. The Navajo Nation would then transfer the CO Bar Ranch to the federal government who agreed to take the CO Bar Ranch and transfer (12) the private, state and federal holdings into reservation trust land for the Hopi Tribe. (2) The Hopi Tribe required that an area known as "Sipapu," which is located on the Navajo Reservation, be given to the Hopi Tribe. The "Sipapu" area includes approximately 9,880 acres of Navajo land and is an area of great religious significance to both Hopi and Navajo Tribes. The A.I.P. provides that the religious leaders of both Tribes would meet in an effort to reach an agreement over the "Sipapu" issue. In the event that the religious leaders could not come to some agreement within three months of the ratification of the A.I.P., the Hopi Tribe and the Navajo Nation agreed to enter into further negotiations regarding the status of the Sipapu area. (3) The Hopi Tribe required that the Navajo Nation grant them a corridor of Navajo land which would be taken into trust for the Hopi Tribe by the United States. The corridor, which includes approximately 359,600 acres of Navajo land, would run between and connect the Hopi Tribe's current reservation and the CO Bar Ranch. (4) The Hopi Tribe also required that the United States would purchase the Hart Ranch and transfer that ranch in trust to the Hopi Tribe. The Hart Ranch includes approximately 102,640 acres of federal, state and private land near Flagstaff. In the event that the United States could not acquire the Hart Ranch for $5 million or less, the United States agreed to pay the Hopi Tribe $5 million. (5) In addition, the Hopi Tribe required that the United States pay them an additional $15 million and agree to assist the Hopi Tribe in managing both the Hopi Partitioned Lands and the new ranch lands that the Hopis were to acquire. (6) Finally, the Hopi Tribe required that they be allowed free access onto the Navajo Reservation to a shrine located at Cliff Springs. Further that the Hopi Tribe would be allowed to gather fir branches outside the current two mile radius around Cliff Springs. (13) The Cliff Springs area the Hopis demand access to involves approximately 201,062 acres of Navajo land. During these negotiation sessions, there was little or no time allowed for the Navajo Nation or Mr. Phillips to present to the Navajo families the many proposals developed by the Hopi Tribe, Magistrate McCue, and the U.S. government. The families therefore had little or no input into the A.I.P. before it was signed. It was agreed by all parties that the only way to include the views of the families was to have the AIP signed subject to the consideration and approval of the HPL families. With this agreement and understanding by all parties, the AIP was signed on October 30, 1992. C. LEAK OF AIP In mid-November, prior to the ratification of the A.I.P. by both tribal councils, an employee of the U.S. Forest Service leaked the AIP to the media. The public release of this preliminary agreement, without a full and accurate summary of the provisions, provoked an immediate and intense rush of opposition from within Arizona. There was significant public opposition to provisions of the AIP that would transfer certain public lands to the Hopi Tribe. Even the transfer of various private lands into trust status for the Hopi Tribe was the focus of opposition. Public officials at the federal, state and local levels and environmental groups also expressed concern about the provisions of the AIP, and objected strongly to having been excluded from the process that produced the A.I.P. The sudden release of the AIP also came as a complete surprise to the Navajo families living on the HPL, who believed they were participants in the mediation and that no agreement could be reached without their consent. The details of the A.I.P. were distorted by the press reports, including reports that this was a "final agreement" which the Navajo families living on the HPL had approved. Even more troubling were reports, in this case accurate, that the AIP included as an accommodation to the families only a 75-year lease, not the "lease with option to buy" that Magistrate McCue had discussed with them in his most recent visit. The premature release of the AIP was a significant distraction to the effort to reach agreement among the parties. Instead of beginning discussions with the HPL Navajo families, the parties to the mediation were forced to spend the next several months briefing federal, state and local officials about the AIP. By the time that informational meetings could be held with the Navajo families, the AIP was already seen as lacking sufficient support to be adopted as a final resolution of the dispute. (14) D. RATIFICATION OF THE AIP BY THE NAVAJO NATION AND THE NAVAJO FAMILIES LIVING ON THE HOPI PARTITIONED LANDS The Navajo Nation Council ratified the A.I.P. on November 24, 1993. The Council approved the AIP with the following caveats related to approval of the AIP by the Navajo families living on the HPL: 1. Because the Navajo families living on the HPL are not yet required to ratify the Agreement in Principle, the Navajo Nation Council's ratification applies to those matters of particular concern to, and under the direct governmental authority of, the Navajo Nation Council. 2. The proposed terms relating to accommodations for Navajo families on the HPL must be finalized, and must be acceptable to, and approved by, the Navajo families living on the HPL because it is the Navajo families who must live with whatever accommodation terms are negotiated. In the second week of December, all the parties to the mediation, including representatives of the Navajo Nation and the Navajo families living on the HPL, went to Washington D.C. to brief Members of Congress and Administration staff about the mediation and the AIP. The meetings were intended to address the concerns that had been raised by Members of the Arizona Congressional delegation and the committees of the House and Senate with jurisdiction over Native American Affairs regarding any potential legislation implementing the AIP. Notwithstanding efforts by the parties to the mediation to assure the Congress and the public that the AIP was still subject to ratification by the Navajo families, and that accommodations would be made to address the concerns of interested parties who had not participated in the mediation process, the AIP became a focus of increasing controversy within Arizona and the Congress. The breadth and intensity of opposition to the AIP became evident at a public meeting held on January 12, 1993, by Senator John McCain, and a February 10, 1993 hearing in Flagstaff of the Senate Committee on Indian Affairs. By the end of the hearing, it was apparent that the AIP, as written, was opposed by one of the U.S. Senators representing Arizona (the other reserved judgment), several key Arizona members of the U.S. House of Representatives Delegation, the Governor of Arizona, the Mayor and City Council of Flagstaff, numerous local environmental, sporting and business associations, and a significant percentage of Arizona citizens. In addition to objecting to the transfer of certain public lands to trust status for the Hopi Tribe, many opposed the AIP because it was not seen as providing a "permanent solution" to the land dispute -- at least one that merited the significant expenditure of public resources that would be necessary to implement the AIP. The owners of the CO Bar Ranch also withdrew (15) the Ranch from the market, thereby making it impossible to meet one of the agreed upon essential elements of the AIP. Recognizing the extent of opposition to the AIP, President Peterson Zah wrote to Magistrate McCue on March 23, 1993 to reemphasize the commitment of the Navajo Nation to the mediation process and ask that Magistrate McCue reconvene the negotiations to address the problems that had emerged. He noted that "the breadth and depth of this political opposition makes it clear that it is no longer realistic to expect that the legislation necessary to implement the AIP in its current form will be enacted." Lee Brooke Phillips, counsel to the Navajo families, had written a similar letter to Magistrate McCue on March 18, 1993. Mr. Phillips' letter emphasized that the mediation was at "a critical point," and he detailed five specific issues that the Hopi Tribe would need to address before the A.I.P. could be approved by the Navajo families. Magistrate McCue did not reconvene the negotiations to address the full range of opposition to the AIP described by President Zah and Mr. Phillips, and neither the Hopi Tribe nor the government addressed the list of issues included in Mr. Phillips March 18, 1993 letter. A meeting was convened of the parties to the mediation, but the Hopi Tribe and the U.S. government representatives inexplicably refused to reexamine the full range of public objections to the AIP. Magistrate McCue instead directed the parties to continue to focus exclusively on issues related to the lease proposal developed by the Hopi Tribe. E. EDUCATING THE NAVAJO FAMILIES ON THE HPL In late Spring 1993, the mediation effort again turned its attention to the Navajo families on the HPL. By that time the Hopi Tribe had provided the Navajo team with a draft of the actual lease document. The Navajo team conducted several meetings throughout the HPL to educate the Navajo families about the Hopi lease. Following the initial meetings with the Navajo families, a series of meetings were scheduled where the Hopi mediation team presented their lease proposal to the various Navajo communities on the HPL. In these meetings with the Hopi Tribe, the Hopi Tribe provided the Navajo families with a written summary of the lease entitled, "Central Points of the Lease Proposed by the Hopi Tribal Council". Following the Hopi Tribe's presentation, the Navajo team held several meetings with the Navajo families to discuss the Hopi's presentation and to answer questions. The Hopi Tribe was then invited back to the various communities to answer questions and to listen to concerns from the Navajo families. Again, these meetings were held in the Navajo communities throughout the HPL. To aid in the exchange of information, the Navajo team prepared a list of written questions from the Navajo families concerning the Hopi lease proposal. These written questions were provided to the (16) Hopi Tribe and in June of 1993, the Hopi Tribe presented the Navajo team with written answers to many of the questions. These written questions and answers were then used to help further educate the Navajo families about the Hopi Tribe's lease proposal. F. NAVAJO CONCERNS AND EFFORTS TO SEEK A HOPI COMPROMISE As the Navajo families began to understand the Hopi proposal, many new questions and concerns were identified. Most of the concerns focused around "religious issues" and the lack of a permanent solution to the land dispute. Specific religious concerns that were raised included limiting the families to three acre homesites and the impact this could have on their ability to perform ceremonies and to protect religious sites. Also, the restriction against Navajo families burying their relatives at their homesite or anywhere on the H.P.L. This restriction was unacceptable to the families who wish to be buried at their ancestral home and who believe such burials should be protected and cared for. The families also felt that 112 three acre leases would be grossly insufficient for the 253 full time "List A" families and would act to divide and separate families who would be forced to compete against each other for the 112 leases. Moreover, the Hopi proposal completely excludes the 317 "List B" families whose homes are on the H.P.L. but who are temporarily away for work, school or military service. The "List B" families, most of whom are children or grandchildren of "List A" families, are not eligible for a Hopi lease and therefore face relocation. For many of the "List A" families the prospect of staying on a three acre lease site for seventy-five years, without their children or grandchildren and with the Hopi Tribe having jurisdiction to regulate them and their religious practices and to evict them without any neutral review, was unacceptable. The families felt that unless the Hopi Tribe would compromise and/or provide reasonable guarantees on several key issues, it would be impossible to accept the Hopi proposal. During the meetings which took place between the Navajo families and the Hopi Tribe, the Navajo families repeatedly requested that the Hopi Tribe make a more specific guarantee that the Navajo families would be allowed to stay beyond the 75 year lease term assuming that relations were good. The Hopi Tribe was unable to provide such an assurance. In addition, the Navajo families requested more specific assurances concerning the administration of Hopi jurisdiction on the HPL, and the mechanism that would be used to resolve future disputes. Again, the Hopi Tribe was unable to provide any specific guarantees. (17) Again, the area of greatest concern to the Navajo families involved "the religious issues." At each of the meetings, Navajo families asked that there be separate meetings set up to address the religious concerns that effected the two Tribes before they would be asked to accept the Hopi proposal. The Hopi team indicated that they were not authorized to address religious concerns or issues but that future meetings between "religious leaders" could be arranged once the families accepted the Hopi proposal. For each of the areas of concern that were raised, the Navajo families wanted the issues resolved before they would be required to accept the Hopi proposal. The Hopi Tribe took the position that the families would have to ratify or accept the Hopi proposal first before the details of any settlement could be worked out. As had happened with the original signing of the A.I.P., the Hopi Tribe took the position that the Navajo families and the Navajo Nation would just have to "trust" the Hopi Tribe if the mediation was to continue. G. MAGISTRATE McCUE SETS DEADLINES FOR NAVAJO FAMILIES TO RATIFY THE A.I.P. Apparently unhappy with the progress of the Navajo-Hopi meetings, Magistrate McCue sought to expedite the negotiations over the lease. On April 21, 1993, he signed an "order" that purported to set deadlines for the Navajo families to sign the HPL leases. At an April 29, 1993 meeting of the parties to the mediation, Navajo representatives questioned the "order" on several grounds. First, the "order" was developed without any participation by representatives of the Navajo Nation or Navajo families. These representatives were not even advised that an "order" was being developed prior to the time that it was issued in final form. The order" was drafted by the Hopi Field Solicitor and representatives of the U.S. government. Developing a court "order" in this manner would be a violation of normal court rules of procedure providing due process protection to all parties to a case; it was seen as clearly inconsistent with regard to the authority of Magistrate McCue, who had been directed by the Ninth Circuit Court of Appeals to act solely as a "mediator" between the parties in the case. The order" was also questioned because it sought to establish a procedure that was inconsistent with one of the critical protections provided in the AIP for the HPL residents. The AIP specifically provided HPL residents until one year after enactment of legislation implementing the AIP to sign a lease. The "order" arbitrarily directed that HPL residents sign a lease by June 16, 1993. When Navajo families heard of Magistrate McCue's April 21, 1993 "order," they were distressed that they were suddenly being pressured. Meetings with the Hopi Tribe had commenced only several weeks earlier, and discussions about the lease terms were (18) at a very preliminary stage. In this context, the "order" appeared to the families to be yet another mechanism to pressure them into accepting the Hopi Tribe's proposal, rather than a schedule to facilitate meaningful negotiations with the Hopi Tribe. Magistrate McCue informed the parties that his April 21 communication was not intended to be an n order n and was only intended as a letter. Magistrate McCue lifted his "order" on June 10, 1993, less than a week before the final deadline. It was replaced by a new "order" establishing a revised schedule and new deadlines for the mediation process. Once again ignoring requests by the Navajo representatives to reconvene the mediation to address the full range of opposition to the AIP, the June 10, 1993 order established only a procedure for the HPL residents to expeditiously "ratify" the AIP. This was supplemented by a July 19, 1993 "order" making clear that the Hopi Tribe "will have no obligation to continue discussions with HPL Navajos who refuse to ratify the AIP." Nevertheless, the relationship between the Hopi mediation team and the Navajo families continued to improve with each successive meeting. As both sides began to see each other as human beings with common concerns, barriers were lowered and substantial progress was made on several issues. Unfortunately, the August 5, 1993 deadline brought a pre-mature end to these historic meetings. III. THE NAVAJO FAMILIES' RESPONSE TO THE A.I.P. AND THE HOPI PROPOSAL A. THE RESPONSE Many of the Navajo families living on the HPL apparently will chose not to accept the Hopi proposal or to ratify the A.I.P. Those Navajo families who refuse to accept the Hopi proposal and to ratify the AIP in its present form, have joined in the chorus of voices who have determined that this tentative agreement does not adequately resolve their concerns and address their interests with regard to the land dispute. As the parties most affected by this mediation, the Navajo families have determined that the 75 year lease proposal does not resolve the fundamental interests that, for them, are at stake in this mediation. It does not provide adequate protection for them or adequate guarantees that they will be able to freely exercise their religion and to live their traditional lifestyle without unnecessary and burdensome regulation over their lives and religion by the Hopi Tribe. Those Navajo families who have chosen not to accept the Hopi proposal and to ratify the AIP do not wish to see the mediation come to an end. To the contrary, these families, perhaps more than anyone, want to find a solution to this long standing dispute that is fair, comprehensive, and most of all permanent. These families want no dispute with the Hopi Tribe or the federal (19) government, rather they seek only to be allowed to live their lives on the land that they and their ancestors have lived on for countless generations, to raise their children in a traditional Navajo culture and lifestyle, and to be free to pray and exercise their religion like other citizens of this country. The families believe that, in many ways, the mediation has been a tremendous success. It has accomplished things that have never before been possible in the history of this painful dispute. For the first time ever the families themselves have been allowed to meet face to face with representatives of the Hopi Tribe, to be directly involved in helping to define issues and attempting to develop a solution to the dispute. At the same time, the families believe that the Hopi proposal is seriously flawed and that there are alternative solutions which should be discussed and considered before any final settlement is reached. The families know that there must be a way to settle this dispute that does not create the overwhelming opposition that has developed in response to the AIP and the Hopi lease proposal. They also recognize that it is of no value to develop an agreement if that agreement has no hope of being accepted by Congress and becoming law. For these reasons, and because the Navajo families on the HPL believe that a settlement must be fair to all parties and must recognize and protect the religious rights of both Tribes, they offer the following alternative to the current Agreement in Principle. B. THE NAVAJO FAMILIES ALTERNATIVE TO THE A.I.P. The Navajo families call upon President Peterson Zah and the Navajo Nation Council to offer a settlement proposal to the Hopi Tribe which is fair and generous to the Hopi Tribe while at the same time recognizing the fundamental issue upon which the mediation is based, the right of the members of both Tribes to freely exercise their religion. To that end, the Navajo families ask that the Navajo Nation provide the Hopi Tribe with lands that the Navajo Nation, rather than the public, own. Further, that such lands be offered to the Hopi Tribe in such a way as to provide the Hopi Tribe with substantially more land than would be provided to the Navajo families on the HPL. Finally, that such land be conveyed to the Hopi Tribe in trust 80 that it will receive the full benefit of any such land. In exchange, the current H.P.L. boundary would be corrected to return as many families as possible to the Navajo reservation. Those families who do not live near the H.P.L. boundary would be given a permanent land assignments or allotments. The Navajo families ask that the Navajo Nation provide the Hopi Tribe with an economic development package which could include power, water, rights-of-way, and other resources and assistance that would allow the Hopi Tribe to provide these (20) valuable resources to its people. In addition, the Navajo families ask that any settlement include an agreement that both Tribes will work together to improve the HPL 80 that the members of both Tribes can benefit from the settlement. The Navajo families also ask the Navajo Nation to provide the Hopi Tribe with money to settle the pending litigation between the two Tribes which arises from the 1882 dispute. While the families do not know what amount of money would be appropriate, they request that the settlement offer be an amount which fairly represents the monetary value of the Hopi Tribe's claims. Most important is that any settlement agreement include a provision that guarantees the members of both Tribes the right to the free exercise of their religion. Therefore, any settlement agreement should include, at a minimum, that the members of both Tribes shall have free and unimpeded access to shrines and other sites of religious significance located on either the Navajo or Hopi Reservation. The Hopi Tribe has indicated that there are certain religious places located on the Navajo Reservation which are sacred to the Hopi Tribe. The Navajo families believe that it is in the best interest of both Tribes that the Hopi people be allowed access to these places and that the Hopi Tribe and the local Navajo residents meet to develop a procedure which will allow the Hopi people the access to and use of these places for their religious purposes. It is also the Navajo families' understanding that the Hopi Tribe wants permission to come onto the Navajo Reservation to gather eagles which they sacrifice in their ceremonies. While it is not the Navajo way to kill animals for religious purposes, the Navajo families believe that the Hopi Tribe should be given permission to hunt eagles on the Navajo Reservation because it is part of their religion. In this way, hopefully the members of both Tribes can learn from each other and develop a mutual respect for the religions of both peoples. The Navajo families further believe that the land dispute results in large part from the actions and mistakes of the United States government. For that reason, the families believe that the United States should also play a major role in settling the dispute. Therefore, it is only appropriate that the United States government also provide the Tribes with land, money and economic development assistance to help resolve this dispute. The Navajo families call upon the Navajo Nation and the United States government to fully consider this proposal and to make such an offer to the Hopi Tribe. In addition, the families ask Magistrate McCue to schedule a series of mediation meetings to allow the parties to discuss this alternative to the A.I.P. Most (21) importantly, the Navajo families ask Magistrate McCue to assure that their proposal is given the same full consideration by the Hopi Tribe and the Hopi villages that the Navajo families and the Navajo Nation have given to the A.I.P. The Navajo-Hopi-United States land dispute must be settled. This period in the mediation should be looked upon, not as the end of the mediation, but rather the beginning of real negotiation between the Navajo families, the Navajo Nation, the Hopi Tribe and the federal government. C. A COMPARISON OF THE NAVAJO AND HOPI PROPOSALS 1. THE NAVAJO PROPOSAL PROVIDES A PERMANENT SOLUTION TO THE LAND DISPUTE The A.I.P. and the Hopi proposal offers the Navajo families a 75 year lease with no guarantee of renewal. The Navajo proposal on the other hand involves a one time modification of the current HPL boundary and/or the assignment of a permanent homesite or allotment for individual Navajo families who do not live near enough to the HPL boundary to be included in the boundary modification. Most importantly, it protects the religious freedom rights of the Navajo which was the central issue raised by Manybeads and ordered resolved by the Ninth Circuit. In this way, we will not simply pass this problem on to the next generation of Navajo and Hopi people. Rather, we will resolve this dispute once and for all in a way which provides the Navajos with a permanent accommodation and the Hopi Tribe with fair and generous compensation. 2. THE NAVAJO PROPOSAL AVOIDS FUTURE DISPUTES BETWEEN THE NAVAJO FAMILIES AND THE HOPI TRIBE. The A.I.P. and the Hopi proposal provides that the Hopi Tribe shall have jurisdiction and control over the Navajo families. Based on the past history of this relationship, the families believe that future disputes over land use, water, grazing and most importantly over the religious issues will continue indefinitely. Families are also concerned that the Hopi proposal does not provide any method for review or arbitration by a neutral third party. As a result, the families fear that the ongoing disputes will only make their relationship with the Hopi Tribe worse as time goes on rather than better. 3. THE NAVAJO PROPOSAL AVOIDS THE PROBLEM WITH FURTHER EVICTIONS OR RELOCATIONS. The Hopi proposal provides a long list of ways in which Navajo families can lose their lease and face eviction. The families fear that most of the next 75 years would be spent fighting such evictions and resisting the effort to forcibly remove them from their ancestral homes. Under the Hopi proposal the Navajo families are not treated the same as the Hopi Tribe treats (22) its members. If a Hopi person commits a crime they are punished for the crime but they do not lose their home or their right to live on the Hopi mesas. On the other hand, if a Navajo person commits a crime or any number of violations of the Hopi lease, they may face not only criminal prosecution but the termination of their lease and forced relocation. Those Navajos who lose their lease will face relocation and will therefore face the same separation from their sacred homeland as they now face under the 1974 law. The Navajo proposal provides a permanent solution which will place the Navajo families either on the Navajo reservation or on their own individually owned homesite or allotment. In this way, none of the families face future evictions. If a Navajo person commits a crime they will be punished appropriately but they will not face relocation from their ancestral homelands. 4. THE NAVAJO PROPOSAL AVOIDS THE ISSUE OF ANNUAL RENT. Under the Hopi proposal the Navajo families or the Navajo Nation would be required to make annual rent payments to the Hopi Tribe for the use of the HPL land. The Navajo families fear that they do not have the financial resources to pay rent to the Hopi Tribe, on the other hand, they also fear that in the future the Navajo Nation may be unable or unwilling to continue to pay annual rent and the families will then face termination of their leases and relocation. The Navajo proposal provides a permanent solution and a one time settlement of all outstanding issues. In this way, the Hopi Tribe will receive full and fair compensation for any accommodation provided the Navajo families on a one time basis. 5. THE NAVAJO PROPOSAL DOES NOT INVOLVE THE USE OF PUBLIC LANDS. The Hopi proposal requires that approximately two-thirds of the 500,000 acres that the Hopi Tribe would receive, would come from state or federal lands. The use of public lands has created tremendous opposition to the current proposal and has caused several key Congress people to indicate serious concern and even opposition to the A.I.P. The Navajo proposal would provide the Hopi Tribe with substantially more land than would be provided as an accommodation for the Navajo families. All of the land that the Navajo Nation would offer the Hopi Tribe would be Navajo owned land and not public land. It is still possible that the state and/or federal lands may be included in the settlement, but that decision should only be made after full consideration by all affected parties. 6. THE NAVAJO PROPOSAL PROVIDES EQUAL PROTECTION AND RESPECT FOR THE RELIGIOUS CONCERNS OF BOTH TRIBES. Much of the concern that the Navajo families have about the A.I.P. and the current Hopi proposal is that it does not adequately address their religious concerns. In addition, the Hopi (23) Tribe has been unable or unwilling to make specific guarantees concerning the religious concerns prior to requiring the families to ratify the A.I.P. Moreover, the Hopi proposal contains specific restrictions on Navajo religious practice, such as the restriction on the burial of human remains on the HPL and the restriction on the construction of religious structures outside of the three acre lease area. The Navajo proposal provides that the members of both Tribes shall be guaranteed full and unimpeded access to places of religious importance on either reservation. In addition, the Navajo families will be living on either the Navajo reservation or on their own land assignment or allotment. As a result, the Navajo families will be free from the Hopi Tribes regulation and/or control of their religious practices. Finally, the Navajo proposal specifically addresses religious concerns that have been raised by the Hopi Tribe throughout the mediation. These include the Hopi Tribe's request to come onto the Navajo reservation to hunt eagles for ceremonial purposes and the right of unimpeded access to Cliff Springs and other places of religious significance to the Hopi. The Navajo families believe that if the members of both Tribes are allowed to sit down and address these religious concerns at the grassroots level, most if not all of the religious issues can be resolved. In this way, the members of both Tribes can learn from each other and develop a mutual respect for each others religious beliefs and practices. 7. THE NAVAJO PROPOSAL HAS A SUBSTANTIAL LIKELIHOOD OF RECEIVING SUPPORT FROM MEMBERS OF CONGRESS AND THE STATE AND PEOPLE OF ARIZONA. The A.I.P. has failed to receive the support of any Member of Congress, the Governor of Arizona, the State Legislature and the people of Arizona. To the contrary, the opposition to the A.I.P. has been strong and far reaching. The opposition has centered around several fundamental flaws in the A.I.P. Specifically, opposition has focused on the fact that the 75 year lease does not provide a permanent solution to the land dispute and that a substantial amount of public land is being used by the federal government to settle the dispute. The Navajo proposal on the other hand provides a permanent solution while not asking the public to use its Forest Service or other public lands in the settlement. As a result, the Navajo families believe that Members of Congress, the Governor of Arizona, the legislature and the people of Arizona will support their proposal, making real a possibility of settlement which at this time simply does not exist. For these reasons and because this painful dispute must be brought to an end. The Navajo families pray that the Hopi Tribe (24) and the federal government will give this proposal fair consideration and that all parties involved will pledge to begin this next round of negotiations in good faith and bring the same commitment to reaching a fair and permanent resolution that the Navajo families will bring to the table. Respectfully submitted this 5th day of August, 1993. By the BIG MOUNTAIN LEGAL OFFICE _________________________________ LEE BROOKE PHILLIPS 308 N. Agassiz P.O. Box 1509 Flagstaff, AZ 86002 (602) 779-1560 BRUCE ELLISON 816 St. Joseph St. Rapid City, SD 57701 (605) 348-9458 JOHN TREBON 308 N. Agassiz Flagstaff, AZ 86001 (602) 779-1713 Attorneys for the Navajo Families (25) CERTIFICATE OF MAILING We certify that a copy of the Navajo Families Response to the Agreement in Principle was delivered this 5th day of August, 1993, to: The Honorable Vernon Masayesva P.O. Box 123 Kykotsmovi, AZ 86039 The Honorable Peterson Zah President of the Navajo Nation P.O. Box 308 Window Rock, AZ 86515 The Honorable Harry R. McCue U.S. Magistrate, Federal Mediator Southern District of California 940 Front Street San Diego, CA 92189 Mr. Peter Steenland U.S. Department of Justice Land and Natural Resource Division Room 2339 P.O. Box 44378 Washington, D.C. 20026 Mr. Dan Jackson Office of the Field Solicitor U.S. Department of Interior 1 Renaissance Square 2 N. Central Ave., Ste. 500 Phoenix, AZ 85004 Mr. Patterson Joe Navajo Nation Department of Justice P.O. Drawer 2010 Window Rock, AZ 86515 Mr. Roman Bitsuie Navajo\Hopi Land Commission P.O. Box 2549 Window Rock, AZ 86515 (26) -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- To have a current Center For World Indigenous Studies Publication Catalogue sent to you via e-mail, send a request to jburrows@halcyon.com FTP ftp.halcyon.com /pub/FWDP/CWIS Center For World Indigenous Studies P.O. 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