Petition — Sekaquaptewa v. MacDonald

Supreme Court, U.S,

rhe oO

re 0-258 AUG2 0 1980

Beanies : “MICHAEL RODAK, JR., CLERK

in the Supreme Court of the

United States

OctroBER TERM, 1980

ABBOTT SEKAQUAPTEWA, Chairman of the

Hopi Tribal Council of the Hopi Indian Tribe,

for and on behalf of the Hopi Indian ‘Tribe and

all villages, clans, and individual members of the

Hopi Tribe,

Petitioner,

v.

PETER MacDONALD, Chairman of the Navajo

Tribal Council of the Navajo Indian Tribe, for and

on behalf of the Navajo Indian Tribe and all vil-

lages, clans, and individual members of the Navajo

Tribe,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

GEORGE J. ROMNEY, Counsel of Record

Scott C. Pugsley

BOYDEN, KENNEDY & ROMNEY

1000 Kennecott Building

10 East South Temple

Salt Lake City, Utah 84133

Telephone: (801) 521-0800

Counsel for Petitioner

F

Question Presented

At issue in this century-old dispute is the title to

over 7 million acres of reservation lanas upon which

over 80,000 Navajo and Hopi Indians presently reside.

In 1934, Congress created the subject reservation “for

the benefit of the Navajo and such other Indians as

may already be located thereon”.* This case involves

the determination of the legal effect of the granting

language of that Act.

The question of law to be decided is whether the

court below erred when it held that the interest granted

by the 1934 Act to the Hopi Tribe, as the “other In-

dians,” is limited to lands “occupied, possessed, or used”

by Hopi Indians on the effective date of the Act

over 46 years ago, or whether the Hopi Tribe's in-

terest is a joint, equal, and undivided interest with the

Navajo Tribe consistent with (1) the express statu-

tory language of the 1934 Act, (2) its legislative his-

tory, (3) the precedent of the decision in Healing v.

Jones,** and (4) other applicable principles of law.

* Act of June 14, 1934, 48 Stat. 960 (the “1934 Act”).

**210 F.Supp. 125 (D. Ariz. 1962), aff’d, 373 U.S. 758 (1963)

(per curiam).

TABLE OF CONTENTS

Page

Question Presented for Review .......................00--000-- i

SE ii

ooo cocoeccecenrscncceccccencoessreeses iv

ies csi vecsvocosoessvoscssstvsseeqvocnnee 2

Se 2

Statutory Provisions Involved -.............2.....:ccececeee0e0e0 2

Neen nn ccsccsasesonssenasenecneses 3

Den consceneesiecenuececece 7

I. The determination of the tribal interests is

of significant public importance because it

will directly affect title to 7 million acres

of land and will effect the residency,

cultural, and other interests of over

Nee nnn eee ccssecsscvorne “i

II. The court below erred in limiting the Hopi

interest to other than a joint, equal, and

undivided interest with the Navajo Tribe ...... 11

A. The decision below is not consistent

with the legislative history of the

OD 11

B. The decision below is not consistent

with the plain and accepted meaning

of the words of the 1934 Act .................. 15

jae

Page

C. The decision below is not consistent

with the decision in Healing v. Jones

as affirmed by this Court ...............--.-.-+.--- 17

III. The Court below has inferred a standard of

proof, not intended by Congress, which will

impose a very onerous litigation burden on

Cham Bicol Teme iis eacsenisssesonansveceass se hil 20

CO I | sce cani canccetecinectrtobesaceiacenntsictisajacendtansan 21

APPENDICES:

Appendix A — Proceedings in the Lower Courts

Opinion of the Court of Appeals ............ A-1

Opinion of the District Court ................ A-21

Partial Judgment of the District Court .. A-48

Memorandum and Order of the District

Court denying Plaintiff's Motion for

Moconsichor a Cee os.ssos Fares éccncensscoees A-52

Appendix B — Statutory Provisions Involved

Act of June 14, 1934, 48 Stat. 960 ........ A-55

25 U.S.C. §640d-7 (Section 8 of the Act

of December 22, 1974, Pub. L. 93-531,

OS Sint. 3718 af 1718) ...........4..... A-62

iv

TABLE OF AUTHORITIES

CASES:

Page

Douglas v. Wirtz,

232 F.Supp. 348 (M.D. N.C. 1964) 0.0... 22

Fairbanks v. United States,

223 U.S. 215 RI icici saiaercistedash tees ustnsredenineiedad 15

Fortnightly Corp. v. United Artists,

WT Oe LB ic cnieccenceinsee 7

Hamilton v. MacDonald,

503 F.2d 1138 (9th Cir. 1974) .oecceeccceecceeeseeeee 9

Hamilton v. Nakai, 453 F.2d 152 (9th Cir. 1971)

cert. denied, 406 U.S. 945 (1972) .....cecccececeeeee 9

Hawaii v. Standard Oil Co.,

4O5 U.S. 251 (1972) .eccccccsccoscoceccescecscvecosecseeoneee 7

Healing v. Jones, 210 F.Supp 125 (D. Ariz. 1962),

aff d, Jones v. Healing, 373 U.S. 758 (1963)

(per curiam) (herein referred to as “Heal-

ing v. Jones’) .... i, 5, 8, 9, 10, 14, 17, 18, 19, 20, 22

Morton v. Ruiz, 415 U.S. 199 (1974) oe 22

Page v. Hoxie, 104 F.2d 918 (1st Cir. 1939) .......... 19

Schnell v. Peter E-ckrich & Sons,

a Rk |. RE SRR ye cree arene 7

Page

Sekaquaptewa v. MacDonald, 544 F.2d 396 (9th Cir.

1976), cert. denied, 430 U.S. 931 (1977) .... 9, 11

Sekaquaptewa v. MacDonald,

575 F.2d 289 (9th Cir. 1978) ..........00.....cceccecceoeee 9

Sekaquaptewa v. MacDonald, 448 F.Supp. 1183

(TD, Ariz, 1978) ..........ncsocccceeeceee 2, 4, 9, 12, 15, 17

Sekaquaptewa v. MacDonald,

619 F.2d 801 (9th Cir. 1980) .............. 2, 6, 12, 15

STATUTES, TREATIES, AND

EXECUTIVE ORDERS:

General Allotment Act of February 8, 1887,

24 Stat. 388, Section 1, as amended,

hy a ns aeannee 16

Act of June 14, 1934, 48 Stat. 960 (herein referred

to as the “1934 Act”) .. i, 2, 8, 4, 5, 8, 11, 12, 18, 14,

15, 16, 17, 18, 19, 20, 21, 22

Act of July 22, 1958, Pub. L. 85-547,

es Io ciscadseece beecasietseenidakeeiaicacamaes 17

Act of December 22, 1974, Pub. L. 93-531,

88 Stat. 1712 25 U.S.C. §640d et seq (herein

referred to as the “1974 Act”) ....000.0000.... 3, 8, 9, 11

Mm

Page

OE TTL. BRIT vivscicckscsconcsisccees 3, 8, 13, 17

Te iia csseicsoccnreene 4

BE UC. BOW TD ons scccsicnecsccsscsccceoncsen 8

Navajo and Hopi Indian Relocation Amendments

Act of 1980, Pub. L. 96-305, Act of July 8,

IO ei caiinncomesvnsssonntanencconedsnsnsi’ 6, 9, 11

Se gt | | ae 2

fle NN rare CNS et a 6, 7

Navajo Treaty of June 1, 1868,

I a sas acide ctdpbnciontcaseiainibsbonginkesona 10

Executive Order of December 16, 1882 .. 4, 5, 17, 18, 22

OTHER AUTHORITIES:

86 C.J.S. Tenancy in Common §§7, 18 (1954) ........ 19

Memorandum for the Commissioner of Indian Affairs

dated February 12, 1941, “Creation of the Hopi

Unit Within the Boundaries of the Navajo

Reservation, Opinions of the Solicitor of the

Department of the Interior Relating to Indian

Affairs 1917-1974, Vol. 1, 1082 .............00.00-. 20, 21

Thompson on Real Property, Vol. 4

(1961 Repl.Ed.), Section 1797 .00.............c.csc0 19

in the Supreme Court of the

United States

OcroBER TERM, 1980

ABBOTT SEKAQUAPTEWA, Chairman of the

Hopi Tribal Council of the Hopi Indian Tribe,

for and on behalf of the Hopi Indian Tribe and

all villages, clans, and individual members of the

Hopi Tribe,

Petitioner,

PETER MacDONALD, Chairman of the Navajo

Tribal Council of the Navajo Indian Tribe, for and

on behalf of the Navajo Indian Tribe and all vil-

lages, clans, and individual members of the Navajo

Tribe,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The petitioner Abbott Sekaquaptewa, Chairman of

the Hopi Tribal Council, in his statutorily designated

representative capacity on behalf of the Hopi Indian

2

Tribe and its villages, clans, and individual members,

respectfully prays that a writ of certiorari issue to re-

view the judgment and opinion of the United States

Court of Appeals for the Ninth Circuit entered in this

proceeding on May 23, 1980.

Opinions Below

The opinion of the Court of Appeals is reported

as Sekaquaptewa v. MacDonald, 619 F.2d 801 (9th

Cir. 1980), and is reproduced in the Appendix (A.1).’

The Opinion of the District Court for the District of

Arizona (R. 860) is reported as Sekaguaptewa v. Mac-

Donald, 448 F.Supp 1183 (D. Ariz. 1978), and is re-

produced in the Appendix (A. 21). The Partial Judg-

ment (R. 978) and Memorandum and Order of the

District Court denying petitioner's motion for reconsid-

eration (R. 958), are also reproduced in the Appendix

at A. 48 and A. 52, respectively.

Jurisdiction

The judgment of the Court of Appeals for the

Ninth Circuit was entered on May 23, 1980, and this

petition was filed within 90 days of that date. The

Court’s jurisdiction is invoked under 28 U.S.C.

§1254(1).

Statutory Provisions Involved

This action involves the construction of the Act of

June 14, 1934, 48 Stat. 960, which is reproduced in the

Appendix (A. 55). This action is prosecuted pursuant

1 References to pages of the Appendix are designated “A.

References to the record utilized in the Court of Appeals are

dsignated “R. .

3

to Section 8 of the Act of December 22, 1974, Pub.L.

93-531, 88 Stat. 1712 at 1715-16, 25 U.S.C. §640d-7,

which is also reproduced in the Appendix (A. 62).

Statement of the Case

At issue in this case is beneficial Indian reserva-

tion title to approximately 7 million acres of Indian

reservation lands in northeastern Arizona, making this

one of the largest (if not the largest) quict title actions

in the history of this country.? Over 80,000 Navajo and

Hopi Indians live in the affected area.

Section 8 of the Act of December 22, 1974, Fub.

L. 93-531, 88 Stat. 1712, 25 U.S.C. §640d-7 (the

“1974 Act”) (A. 62), authorized this quiet-title action

in the Arizona Federal District Court between the Hopi

and the Navajo Indian Tribes, appearing through the

chairmen of their respective tribal councils. Congress

authorized this action “for the purpose of determining

the rights and interests of the tribes in and to” the lands

in issue in the Indian reservation created by the Act

of June 14, 1934, 48 Stat. 960 (the “1934 Act”), “and

quieting title thereto in the tribes.” 25 U.S.C. §640d-7

(a). As to any lands in the 1934 Act Reservation “in

which the Navajo and Hopi Tribes or Navajo or Hopi

individuals are determined to have a joint or undivided

interest [such lands] shall be partitioned by the Dis-

trict Court on the basis of fairness and equity.” 25

U.S.C. §640d-7 (b).

2 Title to the fee is in the United States in trust for the tribe or

tribes determined to own the beneficial interest.

4

The 1934 Act which created the Indian reservation

in issue provides:

All vacant, unreserved, and unappropriated pub-

lic lands . . . within the boundaries defined by

this Act, are hereby permanently withdrawn

from all forms of entry or disposal for the benefit

of the Navajo and such an Indians as may

already be located thereon; however, nothing

herein contained shall affect the existing status

of the Moqui (Hopi) Indian Reservation

created by Executive order of December 16,

1882. [ Emphasis added. ]

The complete text of the 1934 Act is set forth in the

Appendix (A 62).

The District Court took judicial notice

that a Hopi village existed at Moencopi on June

14, 1934. Moencopi is within the 1934 Act land

grant, and, therefore, the Hopi are within the

“such other Indians” clause and are holders of

equitable interests.

448 F.Supp. at 1193, R. 873, A. 38.

Based upon the history of the reservation area in-

volved, upon the language and legislative history of the

1934 Act, and upon the subsequent administrative

treatment of the lands in issue by the Interior Depart-

ment, the Hopi Tribe, through the petitioner, asserts

herein to be the “other Indians” referred to as a grantee

in the 1934 Act.’ As a result, the Hopi Tribe claims to

* The background and legislative and administrative history were

presented to the District Court by the parties by means of eight

bound volumes of historical documents. Documents submitted

by the Hopi plaintiff were designated ‘Ex. H. ......... ”: those sub-

mitted by the Navajo defendant, ‘Ex. N. ......... "

5

have received a joint, equal, and undivided interest with

the Navajo Tribe in the beneficial Indian reservation

title to the lands in issue in the 1934 Act Reservation.

The Hopi Tribe’s assertion is fully consistent with the

only closely relevant precedent, which is found in the

case Healing v. Jones, 210 F.Supp. 125 (D. Ariz.

1962). Healing v. Jones was a decision of a specially

authorized three-judge court which construed similar

operative granting language. That decision involved the

determination of the respective tribal interests of these

same Indian tribes in the reservation area known as the

“Moqui (Hopi) Indian Reservation created by Execu-

tive order of December 16, 1882.” The Healing v.

Jones decision was affirmed by the Supreme Court on

direct appeal. See Jones v. Healing, 373 U.S. 758

(1963) (per curiam). Properly understood, the Heal-

ing v. Jones decision supports the Hopi position and

is inconsistent with the decision of the court below.

The Executive Order of December 16, 1882, con-

strued in Healing v. Jones, created a reservation for the

benefit of the “Moqui ["Iopi], and such other Indians

as the Secretary of the Interior may see fit to settle

thereon.” The ultimate effect of the Healing v. Jones

decision was to grant the Navajo Tribe a joint, equal,

and undivided interest in 80% of the Hopi 1882 Execu-

tive Order Reservation.

In contrast, the courts below have severely limited

the interest of the Hopi Tribe in the lands in issue. In

construing the “meaning and effect” of the 1934 Act,

see Pretrial Order No. 1, R. 21-22, the District Court

6

limited the Hopi Tribe to an interest only in lands

occupied, possessed, or used by Hopi Indians on June

14, 1934. The Court then reduced that Hopi interest

further, by a factor of one-half, by granting to the

Navajo Tribe a joint and equal interest even in those

lands.*

The District Court’s Partial Judgment of June 2,

1978 (R. 978) (A. 48) contained a statement, pursuant

to 28 U.S.C. §1292(b), that the Court was

of the opinion that this judgment involves a con-

trolling question of law as to which there is sub-

stantial ground for difference of opinion and that

an immediate appeal from this order as author-

ized by 28 U.S.C. §1292(b) may materially ad-

vance the ultimate termination of this litigation.

R. 981, A. 51.

The U.S. Court of Appeals for the Ninth Circuit

granted both tribes’ petitions for interlocutory appeals,

and received briefs and arguments on four separate

issues, two raised by each tribe. In its opinion dated

May 23, 1980, Sekaquaptewa v. MacDonald, 619 F.2d

801 (9th Cir. 1980) (A. 1), the Court of Appeals

affirmed the decision of the District Court in all re-

4'The District Court also dismissed, as being beyond its subject

matter jurisdiction under the 1974 Act, the Third Claim for

Relief in the Hopi Amended Complaint (R. 597), which seeks

an equitable accounting in connection with the partitioning of

any jointly held lands. See also Part B of the Opinion of the

Court of Appeals at A. 16. The jurisdictional issue relating

to the Hopi claim for an accounting under its Third Claim for

Relief has been mooted by Section 2 of the Navajo and Hopi

Indian Relocation Amendments Act of 1980, Pub.L. 96-305, Act

of July 8, 1980, 94 Stat. 929, which expressly provides jurisdic-

ae . relief similar to that requested in the Third Claim for

elief.

7

spects, except that it determined that the interest of the

Hopi Tribe was not automatically reduced by one-half

in Hopi utilized areas. Rather, it determined that the

Hopis received an exclusive interest in those areas ex-

clusively utilized by Hopis in 1934 and a joint interest

in areas then jointly utilized by both tribes. Both courts

below failed to recognize the Hopi Tribe’s equal and

undivided interest in the lands in issue, and have given

all lands not utilized by Hopis, whether utilized by

Navajos in 1934 or not, to the’ Navajo Tribe.

The partial! judgment of the District Court was

affirmed in part, reversed in part, and remanded by the

Court of Appeals. This petition followed within 90

days of the opinion of the Court of Appeals.’

ARGUMENT

I. The dete:mination of the tribal interests

is of significant public importance be-

cause it will directly affect title to 7

million acres of land and will affect the

residency, cultural, and other interests of

over 80,000 individuals.

The Hopi Tribe, through the petitioner, asserts

that plenary review of the decision of the court below

is appropriate in order: (1) to resolve the question of

land ownership involving title to over 7 million acres

of lands to which the two tribes make conflicting ciaims;

5 This Court has frequently granted review in cases presenting

important unresolved ouestions of federal law arising from

interlocutory appeals under 28 U.S.C. §1292(b). See, e.g.,

Hawaii v. Standard Oil Co., 405 U.S. 251 (1972): Fortnightly

Corp. v. United Artists, 392 U.S. 390 (1968); Schnell v. Peter

Eckrich & Sons, 365 U.S. 260 (1961).

8

(2) to properly resolve a difficult question of statutory

construction of a heretofore unlitigated federal statute,

the 1984 Act; and (3) to conform the decision of the

court below with the only closely analogous precedent,

Healing v. Jones, 210 F.Supp 125 (D. Ariz. 1962),

affd, 373 U.S. 758 (1963) (per curiam), a quiet title

action between these same two tribes involving Indian

reservation lands adjacent to those in issue herein. Be-

cause the lands and tribes affected by the 1934 Act are

located entirely in Arizona, and because the ownership

issues can only be litigated when Congress waives tribal

sovereign immunity as occurred in the 1974 Act, 25

U.S.C. §640d-7, there is no reasonable possibility of

any subsequent decision or any decision from another

circuit providing additional insight into these issues

should review be denied at this time.

This case is one of profound importance to over

80,000 Navajo and Hopi Indians who inhabit these

arid northern Arizona lands, since tribal ownership

will determine residency and other rights in the area

for the Tribes and their individual members now and

in future generations. See the 1974 Act, 25 U.S.C.

§§640d-12 and -13, regarding the relocation of indi-

vidual Indians from lands partitioned to other than

their own tribe. The lands in issue are approximately

equal in size to the combined areas of the States of

Delaware and Maryland. The area is three times as

large as the area which was in dispute between these

tribes in Healing v. Jones, which dispute was charac-

terized in an opinion affirmed by this Court as “the

greatest title problem of the West.” 210 F.Supp. at 129.

9

In the last 6 years Congress has considered the

division of interrelated Hopi and Navajo reservation

claims and interests, including those in issue herein,

to be of sufficient importance to have twice legislated

on the subject. See the 1974 Act, supra, 25 U.S.C.

§§640d to 640d-24, and the Navajo and Hopi Indian

Relocation Amendments Act of 1980, supra, note 4.

This has occurred because the matters involved are of

significant public interest and because they defy easy

solution by conventional means.

As noted by the District Court, the past history

of Navajo-Hopi land disputes, including Healing v.

Jones and its extensive supplemental proceedings,"

documents both the bitter antagonism between

the Navajo and the Hopi and the difficulties at-

tending a judicial resolution of Navajo-Hopi

land controversies.

448 F.Supp. at 1186, R. 862, A. 22.

These difficulties result, in large part, from the

profound cultural and historical differences between

these two tribes. As documented by Healing v. Jones,

the Hopis traditionally have been “a timid and inoffen-

sive people, peaceable and friendly with outsiders,”

having, since at least the year 1541, been “living in vil-

lages on mesa tops, cultivating adjacent fields, and tend-

ing their flocks and herds.” 210 F.Supp. at 134. By con-

6 See Hamilton v. Nakai, 453 F.2d 152 (9th Cir. 1971), cert.

denied, 406 U.S. 945 (1972); Hamilton v. MacDonald, 503 F.2d

1138 (9th Cir. 1974); Sekaquaptewa v. MacDonald, 544 F.2d 396

(9th Cir. 1976), cert. denied, 430 U.S. 931 (1977); and Seka-

quaptewa v. MacDonald, 575 F.2d 239 (9th Cir. 1978).

10

trast, the Navajos, who did not enter Arizona until the

last half of the eighteenth century, have been tradition-

ally “of an aggressive nature,’ “semi-nomadic or migra-

tory, with a “proclivity to commit depredations against

the Hopis,” who were being “constantly overridden by

their more powerful Navajo neighbors.” 210 F.Supp. at

134-36. By 1934, such Navajo encroachment had carried

them far beyond their exclusive reservation along the

Arizona-New Mexico border where, in 1868, they had

promised to remain. Navajo Treaty of June 1, 1868,

15 Stat. 667, Ex. H. 10, Ex. N. 1. See Healing v.

Jones, 210 F.Supp at 135-37.

The decision of the court below will reward the

Navajos for their aggressive behavior by giving them

not nly all of the lands that they had taken from the

Hopis by 1934, but also a vast new domain of

lands not then utilized by either Tribe. The Hopis,

by contrast, will be “rewarded” for their peaceful con-

duct by being confined to lands used on a date more

than 46 years ago, with a one-half Navajo interest in

many of the areas they had then managed to continue

to utilize, and with absolutely no additional lands on

which to grow and develop.

Such results not only offend traditional American

notions of fair play, but they impute to the 1934 Con-

gress a grossly discriminatory execution of the trust

responsibilities which it owed equally to both of these

dependent Indian groups. The present day social im-

plications of such a result to these tribes is of profound

importance, since the reluctance and refusal of the

ll

Navajo Tribe and its members to recognize litigated

rights and to honor court decrees, see the contempt

proceedings reported in Sekaquaptewa v. MacDonald,

544 F.2d 396 (9th Cir. 1976), cert. denied, 430 U.S.

931 (1977), has already, to a large degree, provided

the motivation for Congress to enact the 1974 Act, 25

U.S.C. §640d et seq and the 1980 amendments thereto,

supra note 4.

Review by the Supreme Court and a definitive

opinion at this time regarding the proper construction

of the 1934 Act, before either tribe is put to the very

difficult and expensive burden of proving its historical

land utilization patterns on a fixed date over 46 years

ago, would both potentially avo'd that unintended, very

onerous litigation burden on the tribes and, it is hoped,

would also decrease the extent of subsequent inter-

iribal disputes over the 1934 Act lands, which disputes

have so plagued the tribes, as illustrated by the Healing

v. Jones supplemental proceedings.

II. The Court below erred in limiting the

Hopi interest to other than a joint, equal,

and undivided interest with the Navajo

Tribe.

A. The decision below is not consistent

with the legislative history of the

statutory language.

Petitioner respectfully submits that the decision of

the court below in limiting the extent of the Hopi

interest is not only of great public importance because

of the large area and number of people affected, but

12

that it is manifestly wrong. The Court of Appeals, in

reviewing the District Court’s construction of the

“meaning and effect” of the 1934 Act, stated:

We acknowledge the absence of a Navajo-Hopi

boundary, as we must... .

Congress was not inflexibly committed to

the notion of exclusive areas for the two tribes.

It preferred to allow the tribes to work out what-

ever cooperative arrangement they could.

619 F.2d at 807, A. 14-15. The District Court acknowl-

edged that

the Bureau of Indian Affairs and the Congress

eliminated all reference to a separate and segre-

gated reservation for the Hopi within the land

affected by the 1934 Act. A federal court can-

not arbitrarily draw boundary lines where Con-

gress has chosen not to do so.

R. 958, A. 52.

Yet, notwithstanding these acknowledgments that

Congress did not intend to establish boundaries defin-

ing the extent of the Hopi interest based upon then

(1934) existing criteria, the courts below have con-

strued the “such other Indians as may already be located

thereon” language of the 1934 Act as a limitation de-

fining the territorial extent of the Hopi interest, limit-

ing it to those particular lands, which necessarily have

boundaries to the extent of their separate existence,

which the Hopis were “occupying, possessing, or using”

on the effective date of the 1934 Act. Thus, in the

process of determining the “meaning and effect” of the

1934 Act, the courts below have inferred criteria which

13

necessarily define the Hopi boundaries as of June 14,

1934, contrary to what each Court recognized that Con-

gress intended.

Prior to enacting the 1934 Act, the drafters of the

legislation specifically rejected the idea of legislating a

defined boundary to the Hopi interests, see, e.g., Fx.

H. 125, Ex. N. 86, and also rejected a proposal to

allow the Secretary of the Interior to set such boundary,

see Ex. H. 137, Ex. N. 93. It is manifest error for the

court below to have imposed an implied boundary, set

by the areas of Hopi use and occupancy, in light of the

specific rejection of such boundaries by Congress. The

1934 Congress simply decided to grant an equal and

undivided interest to both the Navajo and Hopi In-

dians because it found it inexpedient to legislate a divi-

sion of tribal interests. The 1974 Congress has now

supplied the criteria for setting a boundary and parti-

tioning the reservation lands. See 25 U.S.C. §640d-7(b),

A. 62:

Any lands in which the Navajo and Hopi

Tribes or Navajo or Hopi individuals are deter-

mined to have a joint or undivided interest shall

be partitioned by the District Court on the basis

of fairness and equity... .

The result brought about by the decision below

contradicts the only specific legislative history in the

record of the “other Indians” clause. Such history is

found in a letter dated September 22, 1932, from the

Commissioner of Indian Affairs to a Hopi supporter.

This letter was written at the time the draft bill of

14

what became the 1934 Act was first altered to insert

the “other Indians” language as finally adopted by

Congress.

Your particular attention is invited to page 4,

lines 6, 7 and 8, reading as follows:

“are hereby permanently withdrawn from all

forms of entry or disposal for the benefit of

the Navajo and such other Indians as may

already be located thereon’.

It will be readily seen that this language will

fully protect the rights and interests of the Hopi

Indians within the area covered by the proposed

bill until such time as the Hopi Indians them-

selves agree to some definite boundary, which

we hope will be somewhat along the lines indi-

cated on the enclosed blue prints. [Kmphasis

added. ]

Ex. H. 188A at 724A, Ex. N. 94. Based upon their

historical use of the whole area, the Hopis then (in

1932) claimed an interest in all of the lands in issue,

though their areas of occupancy at that time had been

greatly restricted by the encroaching Navajos. See, e.g.,

Healing v. Jones, 210 F.Supp. at 134, 136, 187. The

Hopis have never agreed to accept less than their full,

equal share of the lands in issue.

Thus, the “area covered by the proposed bill” with-

in which Hopi interests were expressly intended to be

protected by the “other Indians” phrase included all

of the lands in issue herein. No other meaning or in-

tent was ever ascribed to the “other Indians as may

already be located thereon” language between the time

15

when this letter was written and the enactment of the

1934 Act by Congress.

B. The decision below is not consistent

with the plain and accepted mean-

ing of the words of the 1934 Act.

The result reached by the court below contradicts

the express language of the 1934 Act in setting apart

“All” of the defined areas for the benefit of both tribal

grantees, without expressed limitation as to either.

The court below has erroneously interpreted the

“other Indians . . . located thereon” language in the

1934 Act as words of limitation, defining the extent

of the grant, rather than words of purchase, identifying

a grantee. See Part E of the District’s Court's opinion,

448 F.Supp. at 1193-96, R. 874-81, A. 38-46; Part IT,

A, 2. of the Court of Appeals’ opinion, 619 F.2d at

805-06, A. 9-12. This interpretation is contrary to the

accepted judicial construction of such words in Indian

legislation. In Fairbanks v. United States, 223 U.S.

215, 225 (1912), this Court expressly construed the

words “Indian located thereon” as words of purchase

in an Indian allotment act as follows:

NE a language is: “To each Indian located

thereon, one-eighth of a section of land.’ The

conclusion that plaintiffs draw from that pro-

vision is that being on the reservation at the in-

stant of time the act was passed is a necessary

condition. But such conclusion misses the mean-

ing of the word “located.” Of itself it has no

reference to time. It has reference entirely to

place, and is used to designate upon what In-

dians the powers given by the act, when exer-

cised, should operate, — that is, “to each Indian

ib

located” on the reservation. [Emphasis added. ]

Thus, contrary to the holding of the court below, the

words “located thereon” in analogous Indian legisla-

tion have been construed as words of purchase, identify-

ing grantees, not as words of limitation defining the

extent of the grant. See also Section 1 of the General

Allotment Act of February 8, 1887, 24 Stat. 388, as

amended, 25 U.S.C. §331, using the terms “Indians

. . . located upon” and “Indian located thereon” as

words of purchase to identify which Indians would be

entitled to allotments under that Act. The opinion be-

low fails to distinguish or even mention these closely

relevant statutes. The result reached by the court be-

low in construing the words “Indians located thereon”

as words of limitation relating to only the Hopi interest

is thus contrary to the established usage of those words

in Indian legislation.

Indeed, the court below has construed the phrase

“located thereon” to mean “occupy, possess, or use”

notwithstanding the fact that the 1934 Act, in the sen-

tence following the “located thereon” language, ex-

pressly uses the phrase “occupy and use” in regard to

the rights of the “Indians” to utilize lands set apart for

water-power sites within the reservation." Congress

7 Following the operative granting language of the 1934 Act as

quoted hereinabove, the Act provides as follows:

There are hereby excluded from the reservation as above

defined all lands heretofore designated ... as being

valuable for water-power purposes and all lands with-

drawn or classified as power-site lands, saving to the

Indians, nevertheless, the exclusive right to occupy and

use such designated and classified lands until they shall

be required for power purposes... . 1934 Act, 48 Stat.

at 961, A. 57-58. [Emphasis added. }

17

therefore did use the terms “occupy and use” in the

1934 Act when those terms were intended; the pro-

priety of impliedly equating “located thereon” with

“occupy, possess or use” under such circumstances

would thus be questionable even without the other con-

siderations developed herein. Indeed, despite its con-

trary holding, the District Court observed, “If Congress

wished to limit the ‘such other Indian’ grant to land

actually occupied, Congress could do so in plainer lan-

guage. 448 F.Supp. at 1193, R. 875, A. 40.

C. The decision below is not consistent

with the decision in Healing v.

Jones as affirmed by this Court.

The position of the Hopi Tribe, through petitioner,

is consistent with the only closely relevant precedent,

which is provided by the case Healing v. Jones, 210

F.Supp. 125 (D. Ariz. 1962), affd, 373 U.S. 758

(1963) (per curiam) (herein “Healing v. Jones”).

Healing v. Jones was the first major quiet title

action between the Hopi and Navajo Indian Tribes.

It was prosecuted pursuant to a special jurisdictional

act under which the tribes were permitted to litigate

the extent of their respective iribal titles to lands lo-

cated within and surrounded by the lands in issue in

this case. See the Act of July 22, 1958, Pub.L. 85-547,

72 Stat. 403, reproduced at 210 F.Supp. 129 n. 2. Those

lands (in the Executive Order Reservation established

on December 16, 1882) were expressly excepted from

the effect of the 1934 Act and from the jurisdiction of

the courts herein. See 25 U.S.C. § 640d-7 (a), A. 62-63.

18

Healing v. Jones provides a significant precedent

for this case because it construed operative granting

language similar to that in the 1934 Act, referring to

“other Indians” as grantees along with a named tribe.

It is also significant because the 1882 Executive Order

construed in Healing v. Jones is specifically referred to

in the 1934 Act grant. In the 1882 Executive Order,

the Hopis (“Moquis”) were the named tribe and the

Navajos were the “such other Indians”:

[The described area] be and the same is hereby

withdrawn from settlement and sale, and set

apart for the use and occupancy of the Moqui

[Hopi], crd such other Indians as the Secre-

tary of the Interior may see fit to settle thereon.

[ Emphasis added. ]

See 210 F.Supp. at 129 n. 1 for the complete text of

the 1882 Executive Order.

The Healing court held that the “self-operating

effect” of the language of the 1882 Executive Order

granted the Hopi Indians an immediate interest

throughout the entire reservation. See 210 F.Supp. at

175. The Healing court then considered the question

of what interest, if any, had been granted to the “other

[Navajo] Indians” by that Executive Order. The

Navajos contended that the “such other Indians” clause

also granted them immediate rights throughout the

entire reservation. See 210 F'. Supp. at 139. The court

stated that a “such other Indians” clause would have

granted such immediate and coextensive rights if it had

used language such as “and other Indians now settled

there.” Sce 210 F. Supp. at 140 [emphasis added].

19

This reasoning applies in the case at bar. The 1934

Act granted reservation rights to the “Navajo and such

other Indians as may already be located thereon,” and

such a grant results in the vesting of an immediate, co-

extensive, equal, and undivided interest in the “other

[ Hopi] Indians.”

Unlike the interest of the “other [Hopi] Indians”

under the 1934 Act, the interest of the “other [Navajo]

Indians” in Healing v. Jones was subject to an express

condition subsequent of settlement by the Secretary of

the Interior before they could obtain interests in the

reservation involved. See 210 F'. Supp. at 144. No

such condition subsequent is found in the 1934 Act

and, therefore, both tribes received identical statutory

interests throughout “All” (as the Act says) of the lands

in issue at the time of, and by the force of, the enact-

ment of the 1934 Act. Under the 1934 Act, therefore,

both tribes are in a position comparable to that of the

Hopi Tribe under the 1882 Executive Order and both

received equal, undivided interests by the “self-operat-

ing effect” of the 1934 Act. See Healing v. Jones,

210 F. Supp. at 175. |

Such a holding is in accordance with established

rules of construction which dictate that a conveyance

to two or more grantees, without the specification of

criteria to differentiate the interest received by each,

results in equa’, undivided interests in the grantees. See,

e.g., Page v. Hoxie, 104 F.2d 918, 921 (1st Cir. 1989) ;

Thompson on Real Property, Vol. 4 (1961 Repl. Ed.),

Section 1797 at 125-26; 86 C.J.S. Tenancy in Com-

mon §§7, 18 (1954).

20

The Hopi Tribe thus bases its claim herein to a

joint, equal, and undivided interest upon the “self-op-

erating effect” of the 1934 Act in granting an interest

in “All” of the area in questicn to two grantees, the

Navajos and the “other [Hopi] Indians.” Based upon

the legislative history, there can be no reasonable .;ues-

tion but that the Hopis were intended by Congress to

be the “other Indians.” ‘The Hopi interpretation is

fully consistent with Healing v. Jones, as affirmed by

this Court, and is fully consistent with both the lan-

guage and legislative history of the 1934 Act itself.

III. The court below has inferred a standard

of proof, not intended by Congress,

which will impose a very onerous litiga-

tion burden on the Hopi Tribe.

In limiting the interest of the Hopi Tribe to a test

dependent upon “occupation, possession, and use” as

the court below has done, the Hopi Indian Tribe will

be put to the very difficult burden of proving its his-

torical land utilization patterns and practices on a fixed

date over 46 years ago. Such a burden was never in-

tended by the Congress which passed the 1934 Act.

Karly drafts of the bill which became the 1934

Act either specifically defined areas of exclusive Hopi

interest, or delegated authority to define such areas to

the Secretary of the Interior. The Hopis protested

against such language and it was eventually removed

from the Act, leaving no legislatively established criteria

for differentiating the interests received by the two

tribes. See Memorandum for the Commissioner of In-

21

dian Affairs dated l’ebruary 12, 1941, “Creation of the

Hopi Unit Within the Boundaries of the Navajo

Reservation,’ Opinions of the Solicitor of the Depart-

ment of the Interior Relating to Indian Affairs 1917-

1974, Vol. 1, 1032 at 1034, See also a letter written in

1933 by Arizona Senator Hayden, the chief sponsor of

the 1934 Act, to a friend interested in the Hopi situ-

ation:

You wrote me last April suggesting that if leg-

islation were passed that there be included there-

in the establishment of a separate reservation for

the exclusive use of the Hopi Indians. I started

out to do that very thing but ran into so many

ee that I was obliged to abandon the

idea

Ex. H. 149 at 817, Ex. N. 103.

Congress in 1934 intended to deal fairly with both

tribes. It did not intend to impose upon only the

Hopis the responsibility of proving their then (1934)

land utilization patterns at some future, unknown

date, while at the same time providing a vast

new exclusive domain for the Navajos without proof of

anything. If not reviewed and reserved by this Court,

these unintended results will be visited upon the Hopi

Tribe by the decision of the court below, which de-

cision has been ostensibly confined to determining the

“meaning and effect” of the 1934 Act.

CONCLUSION

Petitioner submits that “equal justice under law”

dictates that the decisional standards applied in this

22

case be consistent with the decisional standards applied

in Healing v. Jones, in which the Navajo Tribe, under

an “other Indians” grant, received a one-half interest

in 80% of the Hopi Tribe's 1882 Executive Order

Reservation. Congress in 1934 did not intend to limit

the Hopi Tribe to its then areas of utilization while

providing a vast new domain for the Navajo ‘Tribe.

Indeed, Congress specifically rejected legislative pro-

posals to establish defined boundaries for the Hopi

interest. Congress in 1934 certainly did not intend to

make the extent of the Hopi interest dependent upon

its ability at some future, unknown time to document

and prove its precise land utilization patterns and prac-

tices, as the court below would now require. Congress

would have made some express provision for document-

ing the extent of Hopi utilization, or otherwise mani-

fested that as the test, had it intended such a result.

As one court has aptly noted, “It is to be presumed,

in construing a statute, that an injustice was not in-

tended to result.”* This Court has noted that “[t]he

overriding duty of our Federal Government to deal

fairly with Indians wherever located has been recog-

nized by this Court on many occasions.” * Petitioner

respectfully suggests that the court below has departed

from its proper role in determining the meaning and

effect of the 1934 Act. It has decreed an implied bound-

ary where Congress had rejected such a boundary,

bringing about a result which causes a substantial in-

justice to the Hopi Tribe. That result was never

8 Douglas v. Wirtz, 232 F. Supp. 348, 353 (M.D.N.C. 1964).

9 Morton v. Ruiz, 415 U.S. 199, 236 (1974).

23

intended by the 1934 Congress which used statutory

language specifically designed to protect the Hopi

interests.

The vastness of the land area involved, coupled

with the tens of thousands of people whose lives and

homes will be affected by the outcome of this case,

make it appropriate for a definative review at this time

to resolve these fundamental title questions upon which

years of subsequent litigation will necessarily depend.

For the reasons stated above, a writ of certiorari

should issue to review the judgment and opinion of the

Court of Appeals.

Respectfully submitted,

George J. Romney, Counsel of Record

Scott C. Pugsley

Attorneys for the Petitioner

BOYDEN, KENNEDY &

ROMNEY

1000 Kennecott Building

10 East South Temple

Salt Lake City, Utah 84133

(801) 521-0800

APPENDIX A

PROCEEDINGS IN THE LOWER COURTS

A-l

[619 F.2d 801]

Abbott SEKAQUAPTEWA, Chairman of the Tribe,

for and on behalf of the Hopi Indian Tribe and

all villages, clans, and individual members of the

Hopi Tribe, Appellant-Cross-Appellee,

V.

Peter MacDONALD, Chairman of the Navajo Tribal

Council of the Navajo Indian Tribe, for and on be-

half of the Navajo Indian Tribe and all villages,

clans, and individual members of the Navajo Tribe,

Appellee-Cross- Appellant.

Nos. 78-3504, 78-3505.

United States Court of Appeals,

Ninth Circuit.

Filed: May 23, 1980.

Appeal from the United States District Court for

the District of Arizona.

Before ANDERSON and SKOPIL, Circuit

Judges, and BONSAL,,* District Judge.

SKOPIL, Circuit Judge:

These are interlocutory cross-appeals from a partial

summary judgment in a quiet title action. The action

was brought to determine the respective property in-

*The Honorable DUDLEY B. BONSAL, Senior United States

District Judge for the Southern District of New York, sitting

by designation.

A-2

terests of the Navajo and Hopi tribes in the reserva-

tion withdrawn by the act of June 14, 1934, 48 Stat.

960 (hereafter “the 1934 Act”). We are also asked to

decide whether the district court had jurisdiction over

the Hopi claim for an accounting for all Navajo activ-

ities on land in which the Hopi Tribe has an interest.

We affirm in part and reverse in part.

The Hopis have inhabited the area in controversy

“Ta]s far back as the Middle Ages.” Healing v. Jones,

210 F.Supp. 125, 134 (D.Ariz.1962), affd, 373 U.S.

758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963). The Na-

vajos probably entered the area in the last half of the

eighteenth century. Id. By treaty in 1868 the United

States granted the Navajos an extensive reservation in

the northeast corner of Arizona. 15 Stat. 667. The

reservation was gradually expanded by a series of ex-

ecutive orders beginning in 1880 and continuing to 1918.

An 1882 executive order withdrew a reservation (here-

after “the 1882 reservation”) for the Hopis “and such

other Indians as the Secretary of the Interior may see

fit to settle thereon”. Title to this reservation, on which

the Navajus and Hopis are intermingled, has been ex-

tensively litigated in a separate line of cases.’

Neither the 1868 treaty reservation nor the 1882

reservation is at issue here. The lands at issue are those

withdrawn by other executive orders from 1880 to 1918.

1 See Healing v. Jones, 174 F.Supp. 211 (D.Ariz.1959); Healing

v. Jones, supra, 210 F.Supp. 125; Hamilton v. Nakai, 453 F.2d

152 (9th Cir. 1972), cert. denied 406 U.S. 945, 92 S.Ct. 2044,

32 L.Ed.2d 332 (1972); Hamilton v. MacDonald, 503 F2d 1138

(9th Cir. 1974); Sekaquaptewa v. MacDonald, 544 F.2d 396

(9th Cir. 1976); Sekaquaptewa v. MacDonald, 575 F.2d 239

(9th Cir. 1978).

A-3

These lands became known as the Navajo reservation.

Hereafter we refer to this area as “the Reservation’.

They surround the 1882 executive order reservation.”

A 1934 Act of Congress, 48 Stat. 960, defined the

exterior boundaries of the Reservation. The Act pro-

vided, inter alia:

All vacant, unreserved, and unappropriated pub-

lic lands, including all temporary withdrawals of

public lands in Arizona heretofore made for In-

dian purposes by Executive order or otherwise

within the boundaries defined by this Act, are

hereby permanently withdrawn from all forms of

entry or disposal be the benefit of the Navajo

and such other Indians as may already be located

thereon; however, nothing herein contained shall

affect the existing status of the Moqui (Topi)

Indian Reservation created by Executive order

of December 16, 1882.

In 1974 Congress authorized both tribes to sue

“for the purpose of determining the rights and interests

of the tribes in and to [the lands covered by the 1934

Act] and quieting title thereto in the tribes”. 25 U.S.C.

§ 640d-7 (hereafter “the 1974 jurisdictional act”).

I—PROCEEDINGS BELOW

The Hopis filed this action. Their amended com-

plaint requests: (1) a declaration that the Hopis have

an undivided one-half interest in the lands at issue; (2)

that jointly held lands be partitioned; and (3) that the

2This land was involved in Sekaquaptewa v. MacDonald, 591

F.2d 1289 (9th Cir. 1979).

A-4

court order an accounting for all Navajo activities on

all land in which the Hopis have an interest.

The district court limited the proceedings to a de-

termination of the nature of the title conferred in the

1934 Act. Following discovery the parties filed cross

motions for summary judgment. In a thorough opinion

the district court held that it had jurisdiction of the

first two claims but not of the accounting claim. It de-

clared that the Hopi Tribe has an undivided one-half

interest in all land it “possessed, occupied or used” in

1934. It declared further that the Navajo Tribe has (1)

an undivided one-half interest in all reservation land

“possessed, occupied or used” by the Hopis in 1934; and

(2) exclusive trust title to the rest of the reservation.

The district court took no action on the claim for parti-

tion, pending final resolution of title. It also did not

identify specific lands “possessed, occupied or used” by

the Hopis in 1934. We granted leave to appeal under

28 U.S.C. § 1292(b).

II—DISCUSSION

We must first address the broad question of what

rights were conferred by the 1934 Act. Two subord-

inate issues must be settled to resolve the broader ques-

tion:

(1) What parts of the Reservation were “vacant,

unreserved, and unappropriated Public lands,

including all temporary withdrawals of public

lands in Arizona heretofore made by executive

order’ ¢

A-5

(2) What property interests are conferred by the

phrase “for the benefit of the Navajo and such

other Indians as may already be located there-

on’ ¢

Next, we must determine whether the 1974 juris-

dictional act confers jurisdiction of the Hopi Tribe's

claim for accounting.

A. What Rights are Conferred by the 1934 Act?

1. What lands are included in the phrase, “all va-

cant unreserved, and unappropriated . . . lands, includ-

ing all temporary withdrawals?’ Does the 1934 Act

apply to all prior executive order withdrawals or only

some of them?

The Navajos contend first that “including” means

that “temporary withdrawals” are a subclass (or ex-

ample) of “vacant, unreserved, and unappropriated”

lands. The district court held that “including” meant

“and”. In the district court’s view the 1934 Act with-

drew: (a) vacant... lands, and (b) temporary with-

drawals.

We agree with the district court. The primary pur-

pose of the 1934 Act was to consolidate land ownership

within the boundaries of the Reservation. Prior to 1934

neither tribe had recognized (compensable) title to

areas withdrawn by executive order. To effectuate con-

solidated land ownership, the 1934 Act should be read

to confirm land title to the greatest possible amount of

land. The district court’s conclusion is consistent with

this.

A-6

The Navajos’ suggestion that title was conferred

only to “vacant” lands would have anomalous results.

The district court's holding makes Hopi title hinge on

possession, occupancy, or use. Hopi possession would

preclude a finding of vacancy. The Hopis would have

no title. Navajo title would be limited to lands vacant

in 1934. We therefore reject this suggestion.

The Hopis contended that “temporary withdraw-

als” include all executive order withdrawals except the

1882 reservation exempted by the 1934 Act. The dis-

trict court agreed, equating “temporary withdrawals”

with executive order withdrawals. Its conclusion was

based on the 1934 Act’s purpose to consolidate reserv-

ation land ownership. It was necessary to confirm title

in all executive order withdrawals since such withdraw-

als in themselves confer no recognized or compensable

title. See U.S. v. So. Pac. Transp. Co., 543 F.2d 676

(9th Cir. 1976).

The Navajos argue that “temporary” has acquired

special meaning in United States Attorney General and

Interior Department opinions which were based on dicta

in a Supreme Court case, U.S. v. Midwest Oil, 236 U.S.

459, 35 S.Ct. 309, 59 L.Ed. 673 (1914). In the Navajos’

view, executive order withdrawals made to preserve a

status quo until Congress can act are “temporary”, and

executive order withdrawals made for public purposes

where no legislative action is contemplated are “perma-

nent’.®

8 This distinction was approved by this court in U.S. v. Consoli-

dated Mines & Smeltirg Co., Ltd., 455 F.2d 432, 445 (9th Cir.

1971), but in reference to an executive order withdrawal. That

case sheds no light on whether such a usage should be attribv'ted

to Congress, which is the question here.

A-7

The district court rejected this suggestion firmly.

Its reasoning is persuasive. The overriding purpose of

the 1934 Act repudiates the Navajos’ interpretation. To

consolidate reservation ownership it was necessary to

change the status of reservation land title from a “ten-

ancy at will to a permanent compensable interest”. The

proposed distinctions were developed by agency officials

to justify executive withdrawals that would otherwise

have conflicted with legislation. There is no reason to

think that Congress approved this device or adopted this

usage. If Congress had intended such a technical usage

it might have said so clearly.

Finally, it is argued that “temporary withdrawals”

must be construed not to apply to withdrawals made

expressly for Navajos. The Navajos maintain that once

lands are reserved for Indians, any subsequent grant

purporting to affect those lands must be strictly con-

strued. Leavenworth, etc., R.R. Co. v. U.S., 92 U.S.

733, 746, 23 L.Ed. 634 (1876); Mattz v. Arnett, 412

U.S. 481, 93 S.Ct. 2245, 37 L.Ed.2d 92 (1973); Sey-

mour v. Superintendent, 368 U.S. 351, 82 S.Ct. 424, 7

L.Ed.2d 346 (1962). The cited cases all involved asser-

tions that Congress had withdrawn land from Indian

reservation status, hence its status as “Indian country’.

See 18 U.S.C. § 1151. Among other things such a re-

sult would have terminated federal and tribal jurisdic-

tion, both civil and criminal. 18 U.S.C. § 1151; DeCo-

teau v. District County Court, 420 U.S, 425, 427 n.2,

95 S.Ct. 1082, 1084 n.2, 43 L.Fd.2d 300 (1975). In

view of these drastic results, a congressional intention

to terminate is not to be inferred unless it is “expressed

A-8

on the face of the Act or. . . clear from the surround-

ing circumstances and legislative history.” Mattz v. Ar-

nett, supra, 412 U.S. at 505, 98 S.Ct. at 2258.

No intent to terminate need be shown here because

there has been no termination. No one contends that

the 19384 Act withdrew the Reservation from Indian

country. The federal government's jurisdiction and trust

obligations remain intact. See, e.g., 25 U.S.C. § 631

et seq. Far from terminating prior executive order res-

ervations, the 1934 Act reinforces them by recognizing

and confirming Indian title.

Assuming an executive order could create an ex-

clusive right of occupancy in one tribe versus another,

it is important “to have in mind the circumstances in

which the reservation was created”. Alaska Pacific

Fisheries v. U.S., 248 U.S, 78, 87, 39 S.Ct. 40, 41, 63

L.Ed. 188 (1918). See also U.S. v. Walker River Irr.

Dist., 104 F.2d 834, 336 (9th Cir. 1939). Where two

tribes have intermingled in the pattern shown here, we

cannot blandly assume the executive has divested the

indigenous tribe. The Navajos do not convincingly show

that such was the executive's intent.

The Navajos next contend that the 1900 executive

order withdrawal was ratified by a 1902 appropriations

act, thereby recognizing Navajo title. A strict standard

applies in determining whether legislation transfers or

recognizes compensable title. Tee-Hit-Tion Indians v.

U.S., 348 U.S. 272, 278-79, 75 S.Ct. 313, 317, 99 L.Ed.

814 (1955) (“[T]here must be the definite intention

by congressional action or authority to accord legal

A-9

rights, not merely } missive occupation”); Hynes v.

Grines Packing Co., 837 U.S. 86, 105, 69 S.Ct. 968,

980, 93 L.Ed. 1231 (1949) (“It would take specific

and unambiguous legislation to cause us to rule that

Congress intended to authorize the Secretary of the In-

terior to alienate . . . fisheries permanently”).

The 1902 appropriation act makes no direct or in-

direct mention of title. The Navajos do not point to

convincing legislative history to support their position.'

We reject the Navajo argument. See Northern Chey-

enne Tribe v. Hollowbreast, 425 U.S. 649, 655-56, 96

S.Ct. 1793, 1796-97, 48 L.Ed.2d 274 (1976).

We conclude that the 1934 Act applies to all prior

executive order withdrawals.

2. What property interests are conferred by the

phrase “for the benefit of the Navajo and such other

Indians as may already be located thereon” /

The Hopis contend that this provision vests un-

divided, one-half interests in both tribes. In their view,

“as may already be located thereon” is merely a way

of identifying the Hopis. If does not limit Hopi rights

to land occupied. In real estate conveyancing parlance,

they are “words of purchase”.

The district court held that this language limits

Hopi rights to lands “possessed, occupied or used” in

* The Navajo position is based on evidence that President McKin-

ley felt that it would be unjust to take the 1900 executive

order lands without compensation. This says little of legislative

intent to recognize exclusive Navajo title.

A-10

1934. The words “as may already be located thereon”

are words of limitation. Under the district court's hold-

ing, the Navajos have: (1) an undivided one-half in-

terest in lands occupied by the Hopis in 1934, and (2)

exclusive trust title in all other reservation lands.

The 1934 Act is concerned primarily with Navajo

affairs. ‘The boundaries described are of “the Navajo

Indian Reservation”. The Act provides for the pur-

chase of additional Navajo lands with Navajo funds.

Navajos are precluded from receiving royalties from

water developments on lands added to the Navajo res-

ervation. Further allotments to Navajos are restricted.

The Secretary is authorized to acquire private land for

the Navajos. The State of Arizona is authorized to

exchange school sections “within the boundary of the

Navajo Reservation . . . in favor of said Indians”. Funds

are authorized to purchase the State's improvements on

school sections if the State assigns its interest in the

sections to the Navajos.

The only mention of the Hopis in the 1934 Act is

in the provision excepting the 1882 reservation from the

Act’s effects. The Hopis’ argument that the “plain

meaning” of the 1934 Act vests equal title in both tribes

is tenuous at best. They stress the word “all” in “All. . .

lands... are... withdrawn . . . for the benefit of the

Navajo and such other Indians as may already be lo-

cated thereon.” However, one must resort to extrinsic

sources even to conclude that “such other Indians” in-

cludes the Hopis. The word “all” could be read to

create undivided one-half interests in both tribes, but

it does not do so unambiguously. Legislative history

A-ll

makes it plain that “located thereon” cannot be read to

convey to the Hopis a one-half interest in the Reserv-

ation. The district court’s holding was based on a fair

reading of the 1934 Act's legislative history. See 448

I*. Supp. 1193-1196.

The Hopis suggest that real property conveyancing

presumptions’ require that this language be construed

to create a tenancy in common. Policies underlying con-

veyancing presumptions have no necessary application

to federal-Indian relations.’ The intent of Congress,

which we read to conflict with the conveyancing pre-

sumptions, governs. \WWe therefore reject this suggestion.

The Hopis also suggest this result is inconsistent

with Healing v. Jones, supra, 210 F.Supp. 125. In

Healing a 1958 statute withdrew tie lands described in

the 1882 executive order. The 1958 statute withdrew

lands “for the Hopi Indians and such other Indians, if

any, as heretofore have been settled thereon by the Sec-

retary of the Interior pursuant to such Executive order’.

The 1882 executive order used similar words: “for the

use and occupancy of the Moqui (Hopi), and such

other Indians as the Secretary of the Interior may see

fit to settle thereon.” The Healing court held that the

5In U.S. v. Washington, 520 F.2d 676, 685 (9th Cir.) cert. denied,

423 U.S. 1086, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976), aff’g, 384

F.Supp. 312 (W.D.Wash.1974), this court drew by analogy on

cotenancy principles to adjust competing Indian and non-In-

dian claims to fisheries. However, this was only after the rights

to the fisheries were determined pursuant to principles of treaty

interpretation. The cotenancy analogy was used in aid of parti-

tion, after trial was determined.

If we were to apply real property principles to this case, the

more accurate analogy might be to a class gift. See Restate-

ment of Property, § 300 (and see Comment f), and § 367, Com-

ment e (1940 ed.).

A-12

1882 order created a Hopi right of occupancy to the

entire area, regardless of where they settled. The Nav-

ajos subsequently acquired an equal right to occupy

lands on which they were administratively settled. In

areas where there was no N avajo settlement, the 1958

Act confirmed exclusive Hopi trust title.

The Hopis contend that the district court’s ruling

here is in effect the same as the ruling in Healing: the

named tribe receives an interest in all lands, while the

“other Indians” have a one-half interest in land occu-

pied. Yet the statute and order in Healing are different

from the 1934 Act at issue here. In Healing “other

Indians” rights were contingent on administrative

action. In this case no such action was required. The

1934 Act immediately vested rights in both tribes.

Therefore, the Hopis argue, equivalent results in the

two cases must be error.

Even if the district court's holding were inconsist-

ent with Healing, legislative intent behind the 1934 Act

must control. But there is no inconsistency. The statute

and order in Healing used different language in a dif-

ferent legislative setting than the 1934 Act. The fact

that the two cases arrived at superficially similar results

should not in itself give pause. The single factor present

in Healing and not here was the initial withdrawal of

all land in favor of the named tribe. In Healing the

“other Indians” obtained an interest in reservation lands

only after obtaining secretarial authorization to settle.

The Hopis seem to suggest that this Healing method is

the only way for Congress to authorize the result the

A-13

district court reached. Congressional power over Indian

land is broad. Warren Trading Post v. State Tax Com-

mission, 380 U.S. 685, 85 S.Ct. 1242, 14 L.Ed.2d 165

(1965) ; U.S. v. Sandoval, 231 U.S. 28, 34 S.Ct. 1, 58

L.Ed. 107 (1913). We cannot restrict Congress in the

way the Hopis suggest. Congressional intent is incon-

sistent with the Hopis’ claim to entitlement to a one-

half interest in the reservation. We must respect that

intent.

Finally, the Hopis argue that the issue of title is

a political question. Congress did not identify Navajo-

Hopi boundaries in the 1934 Act. The Hopis would

not agree to boundaries proposed by the administration,

and Congress was unwilling to force the issue. The

Hopis lobbied to protect what they thought was theirs.

This resulted in the exemption of the 1882 reservation

from the 1934 Act and the “such other Indians” lan-

guage. The question is what inferences can be drawn

from this. The Hopis suggest that: (1) since Congress

refused to draw a Navajo-Hopi boundary, it is improper

(as a political judgment) for the court to impose limit-

ations on Hopi property interests; and therefore (2) the

1934 Act must be read as creating a cotenancy. The

Navajos suggest that Congress specifically limited Hopi

rights by the “such other Indians as may already be

located thereon” provision.

Whether the title question is political depends on

whether there is “a lack of judicially discoverable and

manageable standards for resolving it”; or whether the

question is impossible to decide “without an initial policy

A-l4

determination of a kind clearly for nonjudicial discre-

tion”. Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691,

710, 7 L..Ed.2d 663 (1962). See also Healing v. Jones,

supra, 174 F.Supp. at 216 (“[I]f the identification of

the holders of such title and extent and nature of the

respective rights and interests of each cannot be fixed

without exercising, or reviewing the exercise of, political

judgment, then the judicial power is not constitutionally

invoked.”).

If we agreed that there were insufficient standards

to determine title, it does not follow, as the Hopis main-

tain, that we must declare the tribes cotenants. It

would be more logical for us to dismiss the case for

lack of jurisdiction of the political question.

We do not agree, however, that there are no judic-

ially ascertainable standards governing this question. We

acknowledge the absence of a Navajo-Hopi boundary,

as we must. We do not concede that the question of

Navajo and Hopi property interests was left open. It

is a mistake to assume that the absence of a boundary

negates standards for determining title. The purposes,

history, and language of the 1984 Act show an intent to

withdraw all reservation land for the Navajos except for

pockets occupied by Hopis. We agree with the dis-

trict court that this is the meaning of the “such other

Indians as may already be located thereon” provision.

The legislative history discussed by the district court

at 448 F.Supp. 1194-96, supports this conclusion.

Congress was not inflexibly committed to the notion

of exclusive areas for the two tribes. It preferred to

A-15

allow the tribes to work out whatever cooperative ar-

rangement they could. But when negotiations failed,

the 1974 jurisdictional act authorized the courts to de-

clare boundaries if one of the tribes so requested. Since

its jurisdiction was invoked for this purpose, the district

court properly looked to the legislative history of the

1934 Act to determine the tribes’ interests.

To be sure, Congress did not specify in metes and

bounds the extent of tribal property interests in the

withdrawn property. Nevertheless, legislative intent is

clear enough to enable us to identify Hopi interests by

areas settled. Navajo interests are identifiable as the

residue. Congress recognized Hopi concern over the

1882 reservation and their villages, shrines, and grazing

areas outside the 1882 reservation. The “such other In-

dians” provision was explained to the Hopis as protect-

ing their rights to areas occupied outside the 1882 res-

ervation. There is no indication that anyone contem-

plated joint title to the entire area involved here. In

this context the Hopis’ assertion of joint title must be

rejected.

The district court held that the Hopis’ interest in

land they were occupying in 1934 was limited to an

undivided one-half interest. In effect the district court

held that because the 1934 Act did not establish boun-

daries for exclusive Hopi lands, each tribe must have

an undivided one-half interest. We have rejected this

approach in determining the question of title. We must

draw on legislative history to find standards for deter-

mining title.

A-16

Looking to legislative history, a stronger case can

be made that Hopi interests are exclusive rather than

joint. The Act was not intended to disturb then-existing

land tenure patterns. Hopi villagers were told the Act

would “protect the rights of the Hopi Indians to the

lands they occupy around here and there is absolutely

no chance of the Hopis’ rights to these lands being

disturbed.” Ex.H. 143, at 766. It is true that the phrase

“the Hopis’ rights to these lands” is ambiguous. Tech-

nically speaking, neither the Hopis nor the Navajos

could have had any clear idea what those rights might

be. But in their natural and untechnical sense these

words are not ambiguous. They say rather clearly that

the 1934 Act would not disturb the Hopis’ right to

occupy the land they were then occupying. This is con-

sistent with the intent of the 1934 Act to preserve a

status quo and not to disturb existing arrangements. We

therefore reverse the judgment insofar as it limits Hopi

interests to an undivided one-half interest in lands they

exclusively possessed, occupied, or used in 1934. Judg-

ment should be entered declaring Hopi interests in those

lands to be exclusive.

B. Does the Court Have Jurisdiction of the Hopi

Claim For An Accounting?

The Hopis claim that jurisdiction of the claim for

an accounting is conferred expressly and impliedly by

the 1974 jurisdictional act. They contend that express

authority is provided by 25 U.S.C. § 640d-17(c) :

Either tribe may institute such further original,

ancillary, or supplementary actions against the

A-17

other tribe as may be necessary or desirable to

insure the quiet and peaceful enjoyment of the

reservation tek ..., and to fully accomplish all

objects and purposes of sections 640d to 640d-24

of this title.

They also contend that an accounting is an integral

aspect of an action for partition. Therefore 25 U.S.C.

§ 640d-7(b), authorizing partition of jointly held lands,

impliedly authorizes an accounting.

The district court rejected these contentions. See

448 I’.Supp. 1183. Its conclusion was correct. Federal

courts jurisdiction being limited, the burden was on

the Hopis to establish jurisdiction. The United States

and Indian tribes such as the Navajos possess coexten-

sive sovereign immunity. Tribes may be sued only with

the consent of Congress. Hamilton v. Nakai, 453 F.2d

152, 158 (9th Cir. 1972). When Congress consents to

suit, it may impose limitations. Limitations must be

“strictly observed and exceptions thereto are not to be

implied”. Id. at 159 (quoting from Soriano v. U.S.,

352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306

(1957). Therefore the Hopis have a heavy burden to

establish jurisdiction."

Section 640d-17(c) does not mention claims for

accounting. There is therefore no express grant of juris-

diction of accounting claims in section 640d-17(c).

® The Hopis’ characterization of the 1974 jurisdictional act as

“remedial legislation” is unconvincing. The 1974 Act was in-

tended to settle a title controversy between two quasi-sovereign

Indian tribes. The Act does not create a private remedy for

wrongs. Compare Tcherepnin v. Knight, 389 U.S. 332, 88 S.Ct.

548, 19 L.Ed.2d 564 (1967) (private remedy under securities

acts).

A-18

Nor do we see a sound basis for an implied juris-

dictional grant. ‘The 1974 jurisdictional act provides

different procedures and remedies for the 1882 execu-

tive order reservation and for the surrounding reserva-

tion confirmed by the 1934 Act. The 1974 Act specific-

ally provides for accountings and damages claims for

lands within the 1882 reservation. 25 U.S.C. § 640d-

17(a). The absence of similar provisions for the 1934

Act’s lands is telling.’ The district court gave a likely

explanation for the omission. Without a prior adjudica-

tion of title, Congress could not know what kind of fi-

nancial burden an accounting would impose and on

which tribe. If the Hopis were entitled to one-half of

the Navajo reservation, for instance, an accounting

might break the Navajo bank. It is therefore likely that

Congress purposefully did not authorize an accounting

claim. We cannot infer one.

The Hopis contend that the legislative history of

the 1974 jurisdictional act shows that an accounting was

intended. We disagree. The legislative history shows

only a desire for a final settlement of all title claims.

This history might support an inference that an account-

ing was intended. But any inference is weak at best

7 The Hopis offer an obscure explanation for this omission, They

contend that an accounting and damages are authorized for the

1882 reservation lands because title to those lands had already

been adjudicated (in Healing v. Jones, supra, 210 F.Supp. 125)

when Congress passed the 1974 jurisdictional act. It was there-

fore possible for Congress to spell out the details of the final

settlement of the 1882 title claims. In contrast, title to the 1934

Act reservation is still uncertain. Congress could not spell out

the “details” of a final settlement because of this uncertainty.

This argument is strained. There is no convincing reason to

believe that uncertainty over title caused Congress to provide

for an accounting only impliedly. The same uncertainty did

not prevent Congress from specifically allowing for partition.

A-19

and cannot sustain the Hopi burden of establishing

jurisdiction,

Similarly unconvincing is the Hopi contention that

an accounting is merely an inherent aspect of judicial

partition. The authorities they cite support such a posi-

tion, but only with respect to private adjudications.

None involve Indian tribes possessing attributes of

sovereignty. None involve a federal statute establishing

detailed processes and standards for quieting title, parti-

tion, and accountings in limited circumstances. We must

strictly observe the limitations Congress has established.

The 1974 jurisdictional act, 25 U.S.C. § 640d-7,

authorizes actions to quiet title and to partition lands in

some circumstances. Section 640d-17(c) authorizes

“further original, ancillary or supplementary actions”

only if they insure “the quiet and peaceful enjoyment

of the reservation lands” or to accomplish the “objects”

of the Act. It is not at all clear that an action for ac-

counting would insure quiet and peaceful enjoyment of

reservation lands. The effect might be the opposite. The

“objects” of the 1974 jurisdictional act with respect to

the 19384 Act lands are spelled out in section 640d-7,

Those objects are to quiet title and to partition certain

lands. An action for accounting serves neither purpose.

ITI—CONCLUSION

We remand to the district court to determine what

land the Hopis “possessed, occupied, or used” in 1934.

In doing so, we acknowledge the possibility that some

reservation land, grazing land for instance, may have

been used by both tribes in 1934. Even in villages it

A-20

may not be possible for the court to conclude that the

Hopis “possessed, occupied, or used” such land exclu-

sively. In that event it may be proper on remand for

the district court to declare title to be joint or undivided,

subject to partition. We reverse only with respect to

the district court’s holding that Hopi title is necessarily

non-exclusive, even with respect to land that was actu-

ally and exclusively “possessed, occupied, or used” in

1984,

AFFIRMED IN PART, REVERSED IN

PART, AND REMANDED.

A-21

[448 F.Supp. 1183]

Abbott SEKAQUAPTEWA, Chairman of the Hopi

Tribal Council of the Hopi Indian Tribe, for and

on behalf of the Hopi Indian Tribe and all vil-

lages, clans, and Individual members of the Hopi

Tribe, Plaintiff,

V.

Peter MacDONALD, Chairman of the Navajo Tribal

Council of the Navajo Indian Tribe, for and on

behalf of the Navajo Indian Tribe and all villages,

clans, and Individual members of the Navajo Tribe,

Defendant.

No. Civ. 74-842 Pct. WPC.

United States District Court,

D. Arizona.

Filed: April 5, 1978.

MEMORANDUM AND ORDER

COPPLE, District Judge.

Pursuant to 25 U.S.C. § 640d-7, the Hopi tribal

chairman commenced an action in this district to deter-

mine the Hopi tribal rights and interests in the area

described by the Act of June 14, 1934, 48 Stat. 960

(1934 Act). The 1934 Act describes the exterior boun-

daries of the Navajo Reservation in northeastern Ari-

zona, and conveys an equitable interest in certain of

these lands to the Navajo and “such other Indians as

A-22

may already be located thereon.” Before passage of the

1934 boundary bill, this area consisted of a patchwork

of treaty, legislative, and executive order reservations.’

The Hopi and Navajo tribes stipulate to the admission

of the following map to illustrate the area. [Map

omitted. See 448 F.Supp. at 1185. ]

Kvents surrounding the 1882 rectangle, although

not directly related to this case, form the backdrop of

this suit. The 1882 parcel was withdrawn by F.xecutive

Order of December 16, 1882, for the benefit of the

Hopi tribe and “such other Indians as the Secretary of

the Interior may see fit to settle thereon.” The 1934

Act does not affect the status of the 1882 Reservation,

which is the subject of continuing litigation in another

court within this district. See Healing v. Jones, 210

}’.Supp. 125 (D.Ariz. 1962), affd, 373 U.S. 758, 83

S.Ct. 1559, 10 L..Kd.2d 703 (1963). Healing docu-

ments both the bitter antagonism between the Navajo

and the Hopi and the difficulties attending a judicial

resolution of Navajo-Hopi land controversies. See

Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir. 1974).

This action is now before the Court upon the

Navajos’ motion to dismiss certain allegations in the

1 The 1868 rectangle was made a part of the Navajo Reservation

by treaty. Treaty with the Navajos, June 1, 1868, 15 Stat. 667.

By executive order, other parcels were set apart as additions

to the Navajo Reservation or for Indian purposes. See, e.g.,

Exec. Order of Oct. 29, 1878; Exec. Order of Jan. 6, 1880; Exec.

Order of May 17, 1884; Exec. Order of Jan. 8, 1900. Congress

added lands to the Western Navajo Indian Reservation, and

created the Canyon de Chelly National Monument. Act of

May 23, 1930, 46 Stat. 378; Act of Feb. 14, 1931, 46 Stat. 1161

(codified at 16 U.S.C. §§ 445 to 445b).

A-23

amended complaint,’ and on cross-motions for partial

summary judgment regarding the meaning of the 1934

Act.’ These motions raise questions of subject matter

2 Plaintiff's motion to file an amended complaint was granted in

August 1977 without reaching the merits of the Navajo oppo-

sition. The defendant has not reintroduced these objections by

a motion to dismiss. However, insofar as the Navajos’ objec-

tions to the amended complaint rest upon jurisdictional grounds,

the Court wil consider these issues sua sponte.

3 Both tribes have collected and filed volumes of documents to

bolster their interpretation of the 1934 Act (hereinafter cited

as Navajo Ex., Hopi Ex.). These documents actually shed little

light upon the meaning of the 1934 land grant. Nonetheless,

both tribes have objected to the admission of certain evidence.

On a motion for summary judgment, a district court ‘‘can

consider any material that would be admissible or usable at

trial.” C. Wright & A. Miller, Fed.Prac. and Pro.: Civil §§ 2721,

2722: 6 Moore’s Fed.Prac. {| 56.11 [1.-8]. Of course, Rule 56

does not relieve counsel from laying a proper evidentiary foun-

dation. United States v. Dibble, 429 F.2d 598 (9th Cir. 1970).

For example, the Court cannot consider witness interviews pre-

sented by the Hopi tribe because they are not properly auth-

enticated. See Hopi Ex. 233, 234, 235 and 236. The major ob-

jections of the tribes presented raise issues of relevancy. Statu-

tory construction often requires a district court to explore ‘the

circumstances under which the statute passed, the mischief at

which it was aimed, and the object it was supposed to achieve.”

C. Sands, Statutes and Statutory Construction § 48.03 (4th ed.

1972). Therefore, historical material bearing upon the Hopi-

Navajo land disputes are relevant to this motion. Moreover,

these historical documents fall within an exception to the hear-

say rule. Fed.R.Evid. 803(16). However, statements made by

Indian representatives or administrative officials which are not

contemporaneous with the passage of the 1934 Act fall into a

different category. See Healing v. Jones, 210 F.Supp. 125, 142-

43 (D.Ariz. 1962), aff'd, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d

703 (1963). The 1934 land grant was applicable to the par-

ticular situation then existing, and subsequent events or inter-

pretations cannot diminish or enlarge the effect of the 1934 Act.

Cf. C. Sands, supra § 49.02. The Court will therefore not con-

sider evidence regarding events long after passage of the 1934

Act. See, e. g., Hopi Ex. 227 to 293.

Beyond these general comments, the Court need not embark

on the time-consuming task of ruling on each cf the over 100

exhibits objected to. The admissibiity of the bulk of the docu-

ments is stipuated to. The Court will explicitly cite which docu-

ments among these that are relied upon in the text. For pur-

poses of appeal, the Court adds that even assuming all the

proffered exhibits are admitted, the Court’s conclusions would

not differ.

A-24

jurisdiction and collateral estoppel, and three overlap-

ping issues as to the construction of the 1934 Act: (1)

what property was granted by the 1934 Act, (2) who

are the holders of the vested equitable interests in the

1934 Act lands, and (3) what is the nature and extent

of their respective holdings.‘ Each question will be dis-

cussed seriatim.

A. Subject Matter Jurisdiction

The original complaint, brought by the tribal chair-

man on behalf of the Hopi tribe, simply requests a

declaration of Hopi rights in the area described by the

1934 Act. See 25 U.S.C. § 640d-7(a). The amended

complaint differs in three ways. First, the amended

complaint alleges a broader representional capacity for

the tribal chairman. The chairman is now representative

of the tribe, villages, clans, and individual members of

the tribe. Next, a second claim for relief requests a

partition of lands the Court may find jointly held by

the Navajo and Hopi. Finally, a third claim for relief

asks for an accounting for all Navajo activities on land

found to be exclusively or jointly held by the Hopi

tribe. The Navajos argue that the amended complaint

exceeds the subject matter jurisdiction conferred on the

Court. 25 U.S.C. §§ 640d to 640d-20.

Tne statute granting federal jurisdiction over the

Hopi-Navajo land dispute within the 1882 Reservation

authorized the tribal chairman to represent both tribe,

4 An understanding of these issues is aided by a general knowl-

edge of the nature of tribal property rights. See generally F.

Cohen, Handbook of Federal Indian Law 287-312 (N.Mex.ed.

1942).

A-25

villages, clans, and individual Indians. Act of J uly 22,

1958, Pub. L. No. 85-547, 72 Stat. 403; see Healing

v. Jones, 174 F.Supp. 211 (D.Ariz.1959). The juris-

dictional statute for this dispute is narrower in repre-

sentational terms. 25 U.S.C. § 640d-7(a) (“Kither

tribe, acting through the chairman of its tribal council

for and on behalf of the tribe . . .”). Nonetheless, other

sections of the jurisdictional statute assume a broad rep-

resentational capacity. Section 640d-7(b) orders the

Court to determine any lands in which the Hopi tribe,

including villages, clans, and individuals, have an ex-

clusive interest. Section 640d-17(c) authorizes supple-

mental actions on behalf of the tribe, villages, clans, and

individual members. Construing the jurisdictional sta-

tute as a whole, the Court concludes that the alleged

representational capacity is proper.

Section 640d-7 (b) affirmatively requires the district

court to partition any lands found to be jointly held by

the Navajo and Hopi. The Court plainly has jurisdic-

tion over the Hopi second claim for relief. The third

claim for an accounting is more troublesome. Section

640d-17(c) allows supplemental actions “as may be

necessary or desirable to insure the quiet and peaceful!

enjoyment of the reservation lands of the tribes . . .

and to fully accomplish all objects and purposes of sec-

tions 640d to 640d-24.” The Hopi tribe argues this

section allows an action for an accounting. However,

section 640d-17(c) merely codifies the equitable juris-

diction of a federal court to issue ancillary bills to effec-

tuate a court decree. See Hamilton v. Nakai, 453 F.2d

152, 157 (9th Cir. 1972), cert. denied, 406 U.S. 945,

A-26

92 S.Ct. 2044, 32 L.Ed.2d 332 (1972). An action for

an accounting is not necessary to effectuate any decree

this Court might make, or “to insure the quiet and peace-

able enjoyment of the reservation lands.” Moreover, the

legislative directive to accomplish all purposes of the

title does not detract from “the principle that the power

of a court to afford a remedy must be coextensive with

its jurisdiction over the subject matter.” Id. at 156.

Section 640d-7 grants the Court jurisdiction to quiet

title and partition jointly held land. Damages is not

the object or purpose of the jurisdictional grant. Fur-

thermore, Congress explicitly authorized an action for

an accounting in supplemental proceedings in Healing.

See 25 U.S.C. § 640d-17(a). Congressional silence

presumably bars such a remedy in this action. Indeed,

it is unlikely Congress would allow a damage remedy

without first ascertaining the extent and nature of the

Hopi interest in the 1934 Act lands. Otherwise, if a

district court ruled the Hopi tribe has an undivided

one-half interest in all the 1934 Act lands, then a con-

comitant damage remedy probably would obliterate the

Navajo treasury. Therefore, the third claim for relief

will be dismissed.

B. Collateral Estoppel

In 1951 the Hopi tribe brought an action against

the United States before the Indian Claims Commission

alleging the government occupied and possessed with-

out compensation the tribe’s aboriginal land. See 25

U.S.C. §§ 70 to 70v. “Aboriginal title” depends upon a

factual determination. “[ A ]boriginal title must rest on

actual, exclusive, and continuous use and occupancy ‘for

A-27

a long time’ prior to the loss of the property.” Sac §

Fox Tribe v. United States, 161 Ct.Cl. 189, 315 l’.2d

896, 903 (1963), cert. denied, 375 U.S. 921, 84 S.Ct.

266, 11 L.Ed.2d 165 (1963) ; see also Strong v. United

States, 207 Ct.Cl. 254, 518 F.2d 556, 560 (1975), cert.

denied, 423 U.S. 1015, 96 S.Ct. 448, 46 L.Ed.2d 386

(1975); F. Cohen, Handbook of Federal Indian Law

291-94 (N.Mex. ed. 1942). The Hopi tribe asserted an

aboriginal title claim extending approximately over

three-quarters of the 1934 Act lands. The Hopi action

was consolidated with a petition filed by the Navajo

tribe also alleging the uncompensated taking of Navajo

aboriginal land.

The Indian Claims Commission denied the Hopi

tribe’s aboriginal title claim to all of the territory alleged.

Rather, the Commission held the Hopi tribe possessed

aboriginal title to a smaller area which included the

1882 Reservation. This title was extinguished without

compensation as to all lands outside the 1882 Reserv-

ation when the Executive Order of December 16, 1882

issued. The Hopis’ aboriginal title to land within the

1882 Reservation was extinguished partially in 1937

when the Navajo tribe was administratively settled

within the area. See Healing v. Jones, 210 F.Supp.

125 (D.Ariz.1962), affd, 373 U.S. 758, 83 S.Ct. 1559,

10 L.Ed.2d 703 (1963). The Commission ordered the

case to proceed to a determination of damages. See

Hopi Tribe v. United States, 31 Ind.Cl.Comm. 16

(1973) ; Hopi Tribe v. United States, 23 Ind.Cl.Comm.

277 (1970).

The defendant claims this decision collaterally bars

A-28

the Hopi tribe from asserting title to the lands litigated

before the Indian Claims Commission. However, in

this action the Hopi tribe seeks to quiet title to land

under the doctrine of “recognized title.” Recognized

title differs from aboriginal title.

Where Congress has by treaty or statute con-

ferred upon the Indians or acknowledged in the

Indians the right to permanently occupy and use

land, then the Indians have a right or title to that

land which has been variously referred to in court

decisions as “treaty title”, “reservation title’, and

“acknowledged title.” As noted by the Commis-

sion, there exists no one particular form for such

Congressional recognition or acknowledgement of

a tribe’s right to occupy permanently land and

that right may be established in a variety of ways.

Miami Tribe v. United States, 146 Ct.Cl. 421, 175

F.Supp. 926, 936 (1959). “The significance of the rec-

ognized title doctrine generally lies in the fact that a

plaintiff successful on this issue need not present proof

demonstrating aboriginal use and occupancy.” Strong

v. United States, supra at 563; ¥.Cohen, supra at 291-

99. Therefore, the issues of fact and law before the

Indian Claims Commission have no bearing whatsoever

to this action. It is axiomatic that collateral estoppel

does not apply to unlitigated and undetermined issues.

1b Moore's Fed. Prac. 10.443[1].

Nonetheless, the Navajo tribe argues that issues

pertaining to the 1934 Act were decided on appeal to

the Court of Claims adversely to the Hopi. The Hopi

brief to the Court of Claims indicates the contrary,

A-29

however.’ The Hopi tribe argued that aboriginal title

in certain lands outside the 1882 Reservation continued

until 1934. The 1934 Act extinguished one-half of the

Hopi interest in this territory. Hopi argument was not

persuasive to the Court of Claims, who affirmed by

memorandum decision the judgment of the Indian

Claims Commission.’ By necessarily concluding that

Hopi aboriginal title outside the 1882 Reservation was

extinguished in 1882, the Court of Claims never reached

any issues concerning the 1934 Act. Collateral estoppel

is inappropriate as to issues which were neither essential

nor necessary to judgment. Id. Therefore, the Hopi

tribe is not collaterally estopped in any respect from

asserting property rights under the 1934 Act.

C. What Property Was Granted by the 1934 Act

The relevant granting clause of the 1934 Act fol-

lows:

.... That the exterior boundaries of the Navajo

Indian Reservation, in Arizona, be, and they are

hereby, defined as follows .. . [boundary des-

cription]. All vacant, unreserved, and unappro-

priated public lands, including all temporary

withdrawals of public lands in Arizona hereto-

fore made for Indian purposes by Executive

order or otherwise within the boundaries defined

by this Act, are hereby permanently withdrawn

from all forms of entry or disposal for the bene-

fit of the Navajo and such other Indians as may

5 The brief is reproduced at Navajo Ex. E, Appendix to Navajo

Motion for Partial Summary Judgment, Sekacuaptewa v. Mac-

Donald, Civ. 74-842, Docket No. 44 (April 26, 1977).

® The memorandum decision is reproduced at Exhibit G, Appen-

dix to Navajo Motion for Partial Summary Judgment, Seka-

— v. MacDonald, Civ. 74-842, Docket No. 44 (April 26,

1 ,

A-30

already be located thereon; however, nothing

herein contained shall affect the existing status

of the Moqui (Hopi) Indian Reservation created

by Executive order of December 16, 1882.

(emphasis added). Which lands were “vacant, unre-

served, and unappropriated” is a question of fact not

before the Court on this motion. The parties dispute

which of the lands withdrawn by executive order in

1878, 1880, 1884, 1900, 1901, 1907, and 1918 were

“temporary withdrawals of public lands in Arizona.”

The Hopis argue that all executive order with-

drawals of public land prior to June 1934 were “tem-

porary. An executive order reservation grants an In-

dian tribe only a “mere temporary and cancellable pos-

sessory right.” Ute Indians v. United States, 330 U.S.

169, 178, 67 S.Ct. 650, 654, 91 S.Ct. 823 (1947). While

occupying an executive order reservation, Indians are

no more than tenants at the will of the government.

... the status of executive order reservations can

be summarized as follows: the Indians have the

exclusive right to possession but title to the lands

remains with the United States. Congress has

plenary authority to control use, grant adverse

interests or extinguish the Indian title. In these

respects, executive order reservations do not dif-

fer from treaty or statutory reservations. The

one difference is that so long as Congress has

not recognized compensable interests in the In-

dians, executive order reservations may be ter-

minated by Congress or the Executive without

pavment of compensation.

United States v. Southern Pacific Transportation

Co., 543 F.2d 676, 687 (9th Cir 1976). The Court

A-31

agrees that a “temporary withdrawal” under the 1934

Act refers to the unique status of an executive order

reservation as opposed to legislatively conferred, com-

pensable “recognized title.” *

7The Navajo tribe attempts to distinguish temporary from

permanent withdrawals in a more abstract manner. The argu-

ment begins with United States v. Midwest Oil Co., 236 US.

459, 35 S.Ct. 309, 59 L.Ed. 673 (1915). In Midwest Oil, the

Court held that the President had the power to withdraw pub-

lic lands from potential mining claims pending further legis-

lation. The Court found that Congress had granted this power

to the Executive by a history of long acquiescence. The Mid-

west Oil Court rejected a distinction between temporary and

permanent executive land withdrawals offered by the appellees.

The appellees, however, argue that the practice thus ap-

proved [by Congress in the past}, related to reserva-

tions,—to cases where the land had been reserved for

military or other special public purposes,—and they

contend that even if the President could reserve land for

a public purpose or for naval uses, it does not follow

that he can withdraw land in aid of legislation. When

analyzed, this proposition, in effect seeks to make a dis-

tinction between a reservation and a withdrawal,—-be-

tween a reservation for a purpose not provided for by

existing legislation, and a withdrawal made in aid of

future legislation. It would mean that a permanent

reservation for a purpose designated by the President,

but not provided for by statute, would be valid, while

a merely temporary withdrawal to enable Congress to

legislate in the public interest would be invalid. It is

only necessary to point out that, as the greater includes

the less, the power to make permanent reservations in-

cludes power to make temporary withdrawals. For there

is no distinction in principle between the two. The

character of the power exerted is the same in both cases.

In both, the order is made to serve the public interest,

and in both the effect on the intending settler or miner

is the same.

Id. at 475-76, 35 S.Ct. at 314. Congress has since eliminated any

implied Executive withdrawal power. Fed. Land Policy and

Management Act of 1976, Pub. L. No. 94-579 § 704(a), 90 Stat.

2743.

Midwest Oil concerned a controversy which arose before

passage of the Picket Act in 1910. Act of June 25, 1910, 36

Stat. 847 (codified at 43 U.S.C. §§ 141 to 143), repealed Fed.

Land Policy and Management Act of 1976, Pub. L. No. 94-579

§ 704(a), 90 Stat. 2743. The Pickett Act expressly authorized

the President to “temporarily withdraw from settlement, lo-

A-32

T Continued—

cation, sale, or entry any of the public lands .. . and reserve

the same for .. . public purposes to be specified in the orders

of withdrawals.” 43 U.S.C. § 141 (emphasis added). Lands

withdrawn under the Pickett Act remained open to “explora-

tion, discovery, occupation, and purchase under the mining

laws.” Id. § 142. After passage of the Pickett Act, the question

arose whether the President could withdraw lands so that they

would not be subject to the mining laws. Then Attorney Gener-

al Robert Jackson argued that the President could withdraw

lands which were not subject to mining claims. 40 Op. Att’y

Gen. 73 (1941). Jackson reasoned that the Pickett Act legis-

lated only as to temporary withdrawals, and did not touch

permanent executive order withdrawals.

It is desirable to point out preliminarily that there is a

recognized difference between the two kinds of with-

drawals. It is true the Supreme Court stated in the

Midwest case .. . that there was no distinction in

principle between a permanent reservation and a tem-

porary withdrawal. But it seems clear the Court was

referring to the question of power, not to types of with-

drawal. The Court referred to differing factual situ-

ations in which one type is used and not the other.

Thus it gave instances of withdrawals in aid of legisla-

tion (pp. 476-80 [35 S.Ct. 309}), and of withdrawals for

reservations for public uses (pp. 470-1 [35 S.Ct. 309}),

the latter including withdrawals for the establishment

of bird refuges, enlargement of Indian or military reserv-

ations, the setting aside of land for water, timber, fuel,

hay, signal stations, and target ranges.

Id. at 76. Exploring the legislative history of the Pickett Act

Jackson concluded:

When lands are withdrawn temporarily for a purpose

coming within the 1910 Act, those lands are subject to

the terms of that act and accordingly said mining laws

apply. If, however, the lands are not withdrawn tempor-

arily for a purpose within the 1910 Act, but for perma-

nent use by the Government for other and authorized

uses, the mining laws made applicable to lands with-

drawn under the 1910 Act do not apply .... This is

so notwithstanding the withdrawal now contemplated

and any other permanent withdrawal may be tempor-

ary in the very broad sense that they may be subse-

quently revoked by the President or by Congress.

Id. at 81 (emphasis added). Apparently, the Jackson view

is accepted in this circuit.

Thus ‘‘temporary” and “perrnanent’”’ do not have mean-

ings in terms of time. Rather they are words which go

to the nature of the withdrawal. A withdrawal of lands

and their reservation for a present use rendered neces-

sary for the discharge of the responsibilities vested in

A-33

7 Continued—

the Executive branch of the Government is said to be

permanent, These reservations have been made for such

purposes as post offices, military and Indian reservations,

light houses, and the like. A withdrawal of lands for

a public purpose, as distinguished from use, is said to

be temporary.

J. Lowe, Withdrawals and Similar Matters Affecting Public

Lands, 4 Rocky Mt.Min.L.Inst. 55, 62 (1958), cited approvingly,

United States v. Consolidated Mines & Smelting Co., Ltd., 455

F.2d 432, 444-45 (9th Cir. 1971).

The Jackson distinction between temporary and permanent

withdrawals was echoed by Felix Cohen, acting solicitor to the

Department of the Interior, in a memorandum on the ‘Validity

of Orders Temporarily Withdrawing Public Land in Aid of Leg-

islation Looking to the Establishment of Indian Reservations.”

. when the word ‘“‘temporary” is used with respect to

withdrawals in aid of legislation, the word “temporary”

is used in contra-distinction to the word ‘‘permanent.”

The executive practice upheld in the Midwest Oil Co.

case embraced two types of public land withdrawals—

permanent withdrawals intended to be effective immedi-

ately for the purposes for which the lands were with-

drawn, and temporary withdrawals such as those now

under consideration, in which public land was with-

drawn for the purpose of maintaining the status of

the land free of private claims until such time as the

Congress itself had taken action.

60 I.D. 54, 56-57 (1947). On the basis of these distinctions,

the Navajo tribe argues that certain executive order with-

drawals within the 1934 Act boundaries were permanent ones,

and, therefore, not granted by the 1934 Act. For example, the

Executive Order of October 29, 1878, states:

It is hereby ordered that the tract of country in the

Territory of Arizona lying within the following described

boundaries .. . be, and the same hereby is, withdrawn

from sale and settlement and set apart as an addition

to the present reservation for the Navajo Indians.

The Navajo tribe characterizes this executive order withdrawal

as a withdrawal for immediate present use, and, therefore, a

“permanent” withdrawal.

The Court is not persuaded that the Jackson distinction is a

meaningful one to apply to the 1934 Act. After all, the dis-

tinction arose from an Executive attempt to justify land with-

drawals seemingly at odds with legislative directives. The 1934

Act states that “All... temporary withdrawals of public

lands in Arizona heretofore made for Indian purposes by Ex-

ecutive order ... are hereby permanently withdrawn... .”

Considering the juxtaposition of “temporary” and “permanent”

within the 1934 Act, it is reasonable to assume Congress in-

A-34

The Navajo tribe argues that certain executive order

withdrawals still fall outside the 1934 Act. The tribe

reasons that Congress recognized title in the Navajo to

some areas within the 1934 boundary bill before its

passage. I‘or example, an Appropriations Act of May

27, 1902, 32 Stat. 264, recognized a Navajo compens-

able interest in the area withdrawn by the Executive

Order of Jan. 8, 1900. The Act of March 3, 1927, 44

Stat. 1847 (codified at 25 U.S.C. § 398d), which froze

the boundaries of all executive order reservations, rec-

ognized Navajo title in other executive order reserva-

tions within the 1934 Act boundaries.

The issue raised is whether Congress recognized

rights of permanent occupancy before the 1984 Act?

An Indian Reservation created by Executive

Order of the President conveys no right of use

or occupancy to the beneficiaries beyond the

pleasure of Congress or the President. Such

rights may be terminated by the unilateral action

of the United States without legal liability for

compensation in any form even though Congress

has permitted suit on the claim. ... When a

reservation is established by a treaty ratified by

the Senate or a statute, the quality of the rights

thereby secured to the occupants of the reserva-

tion depends upon the language or purpose of

7 Continued—

tended to change the Indian land status from a tenancy at will

to a permanent compensable interest. Although the legisla-

tive history of the 1934 Act is silent as to this question of

construction, there is no indication whatsoever that any of the

prior executive order withdrawals were excluded from the

1934 grant. If Congress intended to legislate as to one type of

withdrawal and not to the other, the Court would expect some

expression of this purpose. Therefore, the Court will not apply

the Jackson distinction between permanent and temporary ex-

ecutive order withdrawals.

A-35

the Congressional action. Since Congress, under

the Constitution, § 3 of Art. IV, has the power

to dispose of the lands of the United States, it

may convey to or recognize such rights in the

Indians, even a title equal to fee simple, as in

its judgment is just... . When Congress intends

to delegate powcr to turn over lands to the In-

dians permanently, one would expect to and

doubtless would find definite indications of such

a purpose.

Hynes v. Grimes Packing Co., 337 U.S. 86, 103-04, 69

S.Ct. 968, 979, 93 L.Ed. 1231 (1949) (emphasis add-

ed). The legal standard for recognized title rests upon

the clear intent of Congress. “There is no particular

form for congressional recognition of Indian right of

permanent occupancy. It may be established in a vari-

ety of ways but there must be the definite intention by

congressional action or authority to accord legal rights,

not merely permissive occupancy. Tee-Hit-Ton In-

dians v. United States, 348 U.S. 272, 278-79, 75 S.Ct.

813, 317, 99 L.Ed. 314 (1955).

The Navajo tribe suggests that land withdrawn by

the Executive Order of January 8, 1900, was perma-

nently reserved by Congress. This congressional intent

can be found in the Appropriations Act of May 27,

1902, 32 Stat. 264. This act provides for the purchase

of the title of certain settlers located at Tuba City with-

in the 1900 executive order reservation. In particular,

the appropriations allowed the Secretary of the Interior

to purchase the rights and improvements of about 20

Morman [sic] families at Tuba City. On its face, this

statute does not show a “definite intention by congres-

A-36

sional action or authority to accord legal rights.” More-

over, nothing in the legislative history cited by the

Navajo tribe indicates such a clear purpose. Indeed, the

Navajo position leads to an anomalous result. The Hopi

village of Moencopi is within the 1900 executive order

reservation. One stumbling block to passage of the 1934

Act was the presence of this Hopi village. The Navajo

tribe would read the status of the Moencopi village com-

pletely out of the 1934 Act.

The Act of March 3, 1927, 44 Stat. 1347, states:

Changes in the boundaries of reservations created

by Executive order, proclamation, or otherwise

for the use and occupation of Indians shall not

be made except by Act of Congress... .

(codified at 25 U.S.C. § 398d); see also Act of May

25, 1918, 40 Stat. 570 (codified at 25 U.S.C. § 211)

(“No Indian reservations shall be created, within the

limits of the States of New Mexico and Arizona, ex-

cept by Act of Congress.”). A law review writer has

argued that the 1927 Act is a congressional recognition

of compensable tribal! property interests in executive

order reservations. Note, Tribal Property Interests in

Executive Order Reservations: A Compensable Indian

Right, 69 Yale L.J. 627 (1960). The Navajo tribe

argues the Court should adopt the views of this article.

The question is one of first impression. Cf. United

States v. Southern Pacific Transportation Co., supra

at 687.

In Healing v. Jones, 174 F.Supp. 211 (D.Ariz.

1959), the Court either implicitly rejected or overlooked

A-37

the argument that compensable interests were created

by the 1927 Act. The Healing Court held that equit-

able interests in the 1882 executive order reservation

were not vested until congressional recognition in 1958.

Id. at 216; Note, supra at 639. Whether by oversight

or omission, the Healing Court is correct. On its face,

the 1927 Act does not show a “definite intention by con-

gressional action or authority to accord legal rights.”

Rather, the Act merely limits executive rights and clear-

ly defines congressional initiative. From the bulky leg-

islative history of the 1927 Act, the only direct evidence

as to congressional intent comes with the House Re-

port to a prior version of the Act which was vetoed

by the President on other grounds.

Nothing in this bill is intended to in any manner

change or alter the ownership or legal and equit-

able title to the lands described by its terms.

The question of what rights the Indians may have

in and to Executive order reservations: will not

be affected by its passage and the courts can

squarely decide that issue without reference to

this legislation.

H.R.Rep. No. 763, 69th Cong., Ist Sess. (1926). The

House and Senate Reports on the final 1927 Act are

silent on the issue of recognized title. See S.Rep. No.

1240, 69th Cong., 2d Sess. (1927) ; H.R.Rep. No. 1791,

69th Cong., 2d Sess. (1927). Although the Navajo tribe

can point to language of individual members of Congress

expressing a concern to vest permanent rights to the

Indians, these speechs are hardly dispositive. C. Sands,

Statutes and Statutory Construction § 48.13. Therefore,

the Court concludes that the 1927 Act recognized no

A-38

compensable property interests in the Indian tribes on

executive order reservations.

D. Who are the Holders of the Vested Kquit-

able Interests

The granting clause of the 1934 Act states:

. . . [description of lands], are hereby perma-

nently withdrawn from all forms of entry or dis-

posal for the benefit of the Navajo and such other

Indians as may already be located thereon; how-

ever, nothing herein contained shall affect the

existing status of the Moqui (Hopi) Indian

Reservation created by Executive order of De-

cember 16, 1882.

(emphasis added). As a named grantee, the Navajo

tribe is one holder of the equitable interests. The Court

takes judicial notice that a Hopi village existed at

Moencopi on June 14, 1934. Moencopi is within the

1934 Act land grant, and, therefore, the Hopi are with-

in the “such other Indians” clause and are holders of

equitable interests.

The issue arises whether any other Indian tribe may

he a grantee within the meaning of the 1934 Act’ The

Hopi tribe urges the Court to rule that, as a matter of

law, the Hopi are the only “other Indians” referred to

by the 1934 Act. After all, the legislative history to

the 1934 Act demonstrates a congressional concern

solely for the Hopi and Navajo tribes. The defect in

the Hopi argument is that Congress was capable of

naming the Hopi tribe if it wished to limit the grant

solely to the Hopi and Navajo. The Court declines to

A-39

reach this issue. This action only requires the Court to

decide between the competing claims of the Navajo and

Hopi. 25 U.S.C. § 640d-7, The Court holds below that

the Hopi interest in the 1934 Act lands is tied to Hopi

occupation, possession, or use of the lands on June 14,

1934, I~asmuch as an Indian tribe’s presence within the

1934 area does not vest a proportionate undivided in-

terest in the entire 1934 reservation, the Court need not

decide whether the Hopis are the sole “other Indians”

under the 1934 Act.

Kk. What is the Nature and Extent of the

Holdings

The granting clause of the 1934 Act withdraws

land “for the benefit of the Navajo and such other

Indians as may already be located thereon.” The Hopi

tribe argues that the words “as may already be located

thereon” merely designate the recipients of the 1934

Act. The Navajo tribe argues that these words both

designate the grantees and limit the interest of the

grantees to parcels of land actually occupied on June

14, 1984.

Any words in a conveyance which operate to

designate a conveyance are called “words of pur-

chase” .... In contrast therewith, any words in

a conveyance which operate to designate the ex-

tent of the interest acquired by a conveyee are

called “words of limitation.” _

Restatement Property § 312 Intro. Note. The issue,

therefore, is whether “as may already be located there-

on are words of limitation or words of purchase or

both’ The Court must first look to the language of the

A-40

statute to resolve the question. “rnst & Ernst v. Hoch-

felder, 425 U.S. 185, 197, 96 S.Ct. 1875, 47 L.Ed.2d

668 (1976).

The plain wording of the 1934 Act is ambiguous.

I’or example, the 1934 Act grants an equitable interest

in “vacant, unreserved, and unappropriated” public

lands. Vacant lands are those lands which are abso-

lutely free, unclaimed, and unoccupied. Donley v. Van

Horn, 49 Cal. App. 383, 193 P. 514, 517 (1920). Under

the Navajo interpretation of the 1934 Act, Congress

granted an equitable interest in these vacant lands to

the Hopi only if the Hopi occupied the land. The con-

dition nullifies the grant. If Congress wished to limit

the “such other Indian” grant to land actually occupied,

Congress could do so in plainer language. See Mission-

ary Society v. Dalles, 107 U.S. 836, 339, 2 S.Ct. 672,

27 L.Ed. 545 (1882) (1848 Act confirms and estab-

lishes title to certain land occupied by missionaries, not

exceeding 640 acres, on the date of enactment) ; cf. Tee-

Hit-Ton Indians v. United States, supra, 348 U.S., at

291, 75 S.Ct. 1813 (Douglas, J., dissenting) (1884 Or-

ganic Act for Alaska states Indians shall not be dis-

turbed in possession of lands actually in their use and

occupancy). The Hopi interpretation is also trouble-

some. The title of the 1934 Act states “Exterior Boun-

daries of Navajo Reservation in Arizona.” Nonetheless,

the Hopi tribe claims an undivided one-half interest in

most of the reservation.

‘The congressional record on the 1934 Acct is sparse.

The Senate and House reports, which largely incor-

A-41

porate an explanatory letter from the Secretary of the

Interior, are of little guidance. The Secretary addresses

Hopi land rights in one terse sentence.

It is of importance to observe that section 1 (p.

4, lines 12 to 14, inclusive) contains a provision

safeguarding the rights of the Hopi Indians to

their lands, which are centrally located within the

present Navajo Reservation.

S.Rep. No. 1012, 73d Cong., 2d Sess. 2 (1934); TI.R.

Rep. No. 1602, 73d Cong., 2d Sess, 2 (1934). How-

ever, page 4, lines 12 to 14, merely preserves the exist-

ing status of the 1882 Hopi Reservation. See H.R.

8927, 73d Cong., 2d Sess. (April 3, 1934). The Con-

gress is silent as to the meaning of the preceding “such

other Indians” clause.

Apparently, only one legislative hearing was held

on the boundary bill in 1932. See A Proposed Bill to

Define the Exterior Boundaries of the Navajo Reserv-

ation in Arizona: Hearing on S. 2213 Before the Senate

Comm. on Indian Affairs, 72d Cong., 2d Sess. (1932).

The hearings concerned a bill proposed by the Bureau

of Indian Affairs relating to Hopi-Navajo segregation."

Id. at 3. The bill not only contained the “such other

Indians as may already be located thereon” clause, but

8 Senators Hayden and Bratton originally introduced a bill to

eliminate “checkerboard” control of the lands in northeastern

Arizona and New Mexico between Indian and private land-

owners. S. 5557, 71st Cong., 3d Sess. (Jan. 5, 1931). No action

was taken on this bill pending further study upon the area.

See Report of H. J. Hagerman on the Navajo Indian Reserva-

tion, S.Doc. No. 64, 72d Cong., Ist Sess. (1932). The proposed

bill of the Bureau of Indian Affairs not only eliminated check-

erboard ownership of the land, but also provided a comprehen-

sive solution to the persistent problems between the Navajos

and the Hopis.

A-42

also authorized the Secretary of the Interior to set apart

from time to time lands within the boundary bill for

the exclusive use and benefit of the Hopi. Id. at 4.

The proposed bill made no mention of the 1882 Hopi

Reservation. No senator expressed his views on the

meaning of the “such other Indians as may already be

located thereon” language; however, the Assistant Com-

missioner of Indian Affairs submitted for the record

minutes of four meetings between administrators of the

Indian Bureau and representatives of the Hopi villages.

At these meetings, the Indian Bureau explained the

“whole meaning of this bill.” Zd. at 29.

The first meeting took place on the First Mesa with

members of the Tewa, Sichumovi, and Walpi villages.

Mr. Stewart: Now we are going back to sec-

tion 1 of the bill, especially that part reading

that the lands in those lines are to be perma-

nently for the benefit of the Navajos and such

other Indians as may already be located thereon.

Now I want you to ‘pesectally bear in mind that

by the “as may already be located thereon” that

is put in the bill to especially protect the rights

of the Hopi Indians to the lands they occupy

around here and there is absolutely no chance of

the Ifopis rights to these lands being disturbed.

Now we are going on to that part reading:

“Provided further, That the Secretary of the In-

terior is hereby authorized to determine and set

apart from time to time for the exclusive use and:

benefit of the Hopi Indians, such areas within

the Navajo boundary line above defined as may

in his judgment be needed for the use of said

Indians.”

I will explain to you that this means that at any

—

A-43

time in the future if the Hopi Indians want a

separate boundary line for themselves the Sec-

retary of the Interior can set that aside. T want

to assure you that it only contemplates a separate

Hopi boundary line if the Hopi Indians them-

selves want it. As Mr. Radcliffe explained a

little while ago, suggestions have been made to

us by our own field men and white persons out-

side the Indian Service who are apparently

friendly to the Hopis that certain Jines should be

adopted as their permanent boundary lines.

Those lines involve this one large area here which

covers all of these villages and the lands the

Hopis have been using. . . . That area covers

about 500,000 acres and in addition to that area

it has been suggested that an area of about

32.000 acres be set aside for the use of Moencopi

Wash Hopi Indians.

Mr. Radcliffe: The area on the Moencopi

Wash is outside the Hopi reservation.

Mr. Stewart: Should the Hopi Indians decide

that they want separate boundaries we propose

to fence the lands that are set aside for them.

Id. at 34-35. A similar explanation was given at each

subsequent meeting. See id. at 39 (Minutes of meeting

at Second Mesa, villages of Mishongovi and Shipaul-

ovi) (“Now I want especially for you to bear in mind

that by the ‘as may already be located thereon’ that is

put in the bill to especially protect the rights of the

Hopi Indians to the lands they occupy around here and

there is absolutely no chance of the Hopis’ rights to

these lands being disturbed”) ; id. at 54 (Minutes of

meeting at Third Mesa, Oraibi village) (“We put that

phrase ‘and such other Indians as may already be lo- .

cated thereon’ in the bill so as to protect especially the

A-44

rights of the Hopi Indians to what is called their reserv-

ation”); id. at 68 (Minutes of meeting at Third Mesa,

villages of Hotevilla and Bacabi) (“That phrase ‘and

such other Indians as may already be located thereon’

was especially put in this bill so as to protect the rights

of the Hopi Indians in there to this so-called Hopi

Reservation. In other words, to protect their rights to

the land they are now using and occupying. I want to

emphasize that fact, that the bill as now drawn does

not in any way affect or change the present so-called

Hopi Reservation”). This administrative interpretation

of the boundary bill was presented to the Senate, and

presumably, is consistent with the congressional under-

standing of the 1934 Act.

The proposed bill of the Bureau of Indian Affairs

did not preserve the 1882 executive order reservation.

The “as may already be located thereon” language was

added to protect Hopi property rights. Commissioner

of Indian Affairs Rhoads explains the addition in a

letter of September 22, 1932, to M. Billingsley, a friend

of the Hopi:°

Regarding your view that the present proposed

bill does not define any particular area for the

Hopis, and hence will give title to all the lands

to the Navajo—including the present Hopi

areas— ... there is enclosed our revised copy of

the bill....

Your particular attention is invited . . . [to these

lines] reading as follows:

® The letter is reproduced at Navajo Ex. 94.

A-45

Are thereby permanently withdrawn from all

forms of entry or disposal for the benefit of

the Navajo and such other Indians as may

already be located thereon.

It will be readily seen that this language will

fully protect the rights and interests of the Hopi

Indians within the area covered by the proposed

bill until such time as the Hopi Indians them-

selves agree to some definite boundary, which we

hope will be somewhat along the lines indicated

on the enclosed blue prints.

See also Letter from C. J. Rhoads to Otto Lomavitu

(Sept. 24, 1932) (change was made to fully protect

rights and interests of Hopi Indians within the area) .’°

The new clause did not quiet the controversy, however.

After the 1932 congressional hearing, the Bureau elim-

inated all reference to a segregated area for the Hopi

Indians and added a proviso that the bill would not

affect the status of the 1882 Hopi Reservation. Letter

from Ray Wilbur to M. Billingsley (Jan. 5, 1933) ;

Letter from Henry Scattergood to Edgar Miller (Jan.

14, 1933) .

After Senator Hayden introduced an amended

Navajo boundary bill in February 1933, no mention was

made of the Hopi-Navajo land dispute. S. 5696, 72d

Cong., 2d Sess. (Feb. 28, 1933). Although no longer

affecting the status of the 1882 Hopi Reservation, the

new bill continued to withdraw the land “for the bene-

fit of the Navajo and such other Indians as may already

be located thereon.” The only meaning this clause could

10 The letter is reproduced at Navajo Ex. 95.

11 These letters are reproduced at Navajo Ex. 101 and 102.

A-46

plausibly be given in light of the legislative history is

to protect the rights and interests of the Hopi tribe to

the land they were occupying and using outside the

1882 Reservation on June 14, 1934. Inasmuch as the

1934 Act did not attempt to separate Hopi and Navajo

property interests, the Hopi tribe and the Navajo tribe

each received an undivided one-half interest in these

lands. However, the Navajo attempt to limit Hopi

rights and interests to land actually occupied by the

Hopi is misplaced. The 1934 Act protects both Hopi

occupancy and land use. For example, grazing land

and religious shrines may fall within the scope of the

land grant to the Hopi. These issues present a mixed

question of law and fact, however, and the Court will

not rule at this time on what types of land uses are

sufficient to create a property interest under the 1934

Act. After discovery, the Court can determine which

kinds of Hopi possession or use on June 14, 1934 were

substantial enough to create property rights within the

area set aside by the boundary bill. Therefore,

IT IS ORDERED:

1. The Navajo tribe’s motion to dismiss the third

claim for relief is granted.

2. The Navajo tribe's motion to dismiss the

amended complaint is denied in all other respects.

3. The Hopi tribe’s motion for summary judgment

is denied.

4. The Navajo tribe’s motion for summary judg-

A-47

ment is granted insofar as it is consistent with this mem-

orandum and order.

5. Counsel for the Navajo tribe will prepare a

form of judgment consistent with this opinion, approved

by the Hopi tribe as to form only, and lodge it with

the Court within ten (10) days from the filing of this

order.

A-48

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

ABBOTT SEKAQUAPTEWA, Chairman of the

Hopi Tribal Council of the Hopi Indian Tribe,

for and on behalf of the Hopi Indian Tribe and

all villages, clans, and individual members of the

Hopi Tribe,

Plaintiff,

VS.

PETER MacDONALD, Chairman of the Navajo

Tribal Council of the Navajo Indian Tribe, for and

on behalf of the Navajo Indian Tribe and all vil-

lages, clans, and individual members of the Navajo

Tribe,

Defendant.

No. Civ. 74-842 Pct. WPC

PARTIAL JUDGMENT

Filed: June 2, 1978

This Court having considered the cross-motions of

the respective parties seeking this Court's determination

of the meaning and effect of the Act of June 14, 1934,

48 Stat. 960, in the context of the circumstances pre-

sented by this action; the Court having read the said

motions and the memoranda and documentary evidence

submitted by the respective parties in support thereof;

the Court having entered its Memorandum and Order

thereon dated April 5, 1978; and the Court having con-

sidered plaintiff's motion for reconsideration and en-

tered its Memorandum and Order Dated May 5, 1978

denying the said motion,

A-49

IT IS HEREBY ORDERED, ADJUDGIED

AND DECREED as follows:

1. Pursuant to the Act of December 22, 1974,

25 U.S.C. § 640d et seq. (Supp. 1976), this Court has

jurisdiction over the plaintiff and the plaintiff properly

appears herein for and on behalf of the Hopi Indian

Tribe and all villages, clans and individual members

thereof, and over the defendant and the defendant prop-

erly appears herein for and on behalf of the Navajo

Indian Tribe and all villages, clans and individual mem-

bers thereof, and this Court has jurisdiction over the

subject matter of The First and Second Claims for Re-

lief of the Amended Complaint but does not have

subject matter jurisdiction over The Third Claim for

Relief of the Amended Complaint herein; wherefore

judgment is hereby entered in defendant's favor dis-

missing The Third Claim for Relief of the Amended

Complaint.

2. The plaintiff is not collaterally estopped in any

respect from asserting property rights under the 1934

Act.

8. As used herein, the term “Subject Lands” shall

mean those certain lands, including both surface and

subsurface interests, situated in the State of Arizona,

specifically described in Act of June 14, 1934 (48 Stat.

960), except:

a. The lands described in the Executive Order

of December 16, 1882;

b. The lands in the State of Arizona included

within the Navajo Treaty Reservation (pro-

A-50

claimed August 12, 1868) (15 Stat. 667) ;

c. Lands taken from the Tusayan National

I‘orest and added to and made a part of

the Western Navajo Indian Reservation by

the Act of May 23, 1930 (46 Stat. 378), and

by the Act of February 21, 1931 (46 Stat.

1204) ;

d. Privately owned lands relinquished under

Section 2 of the Act of June 14, 1934 (48

Stat. 960) ; and

e. Privately owned lands validly purchased by

the Navajo Tribe.

4, The Navajo Tribe is a holder of equitable in-

terests in the Subject Lands. The Hopi Tribe of In-

dians does not have any right, title or interest in or to

any portion of the Subject Lands other than its interest

in those lands referred to in paragraph 5 below and as

between the parties herein, the Navajo Tribe has ex-

clusive ownership, use and control (subject only to the

trust title of the United States) in and to all portions

of the Subject Lands other than those lands referred to

in paragraph 5 below. The Court will not decide

whether or not any other Indian tribes may have an

equitable interest in the Subject Lands.

5. The Hopi Indian Tribe and the Navajo In-

dian Tribe each have an undivided one-half interest in

and to any and all of the Subject Lands which were

possessed, occupied or used by the Hopi Indian Tribe

on June 14, 1934; provided, however, that the Court

A-5l

reserves for future determination the type or types of

land use which may be sufficient to bring any of the

Subject Lands within the provisions of this paragraph

5; further provided, however, that the Court reserves

for future determination all questions relating to parti-

tioning of any such lands; and further provided, how-

ever, that the Court reserves for future determination

the effect, if any, of these proceedings upon lands which

have been patented or allotted to any individual or en-

tity, including but not limited to any member of the

Navajo Tribe or the Hopi Tribe.

6. The undersigned is of the opinion that this

judgment involves a controlling question of law as to

which there is substantial ground for difference of opin-

ion and that an immediate appeal from this order as

authorized by 28 U.S.C. § 1292(b) may materially ad-

vance the ultimate termination of this litigation. It is

ordered that all proceedings herein, except such deposi-

tions as either party may in good faith believe are neces-

sary to preserve the testimony of ill or aged persons, be

stayed for ten days from the date of this order, and if

within such ten days, either party shall apply to the

United States Court of Appeals for the Ninth Circuit

for permission to appeal from this judgment, the pro-

ceedings shall be further stayed on the same basis pend-

ing determination of such application and of the ap-

peal, if it is allowed.

DATED June 2, 1978,

/s/ William P. Copple

United States District Judge

A-52

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

ABBOTT SEKAQUAPTEWA, Chairman of the

Hopi Tribal Council of the Hopi Indian Tribe, for

and on behalf of the Hopi Indian Tribe and all

villages, clans, and individual members of the

Hopi Tribe,

Plaintiff,

VS.

PETER MacDONALD, Chairman of the Navajo

Tribal Council of the Navajo Indian Tribe, for

and on behalf of the Navajo Indian Tribe and all

villages, clans, and individual members of the

Navajo Tribe,

Defendant.

No. Civ. 74-842 Pct. WPC

MEMORANDUM AND ORDER

Filed: May 15, 1978

The Hopi tribe’s motion for reconsideration raises

no new issues. Although the Hopi argue that the Act

of June 14, 1934, 48 Stat. 960, granted them an ex-

clusive interest in lands solely occupied or used by the

Hopi, the Bureau of Indian Affairs and the Congress

eliminated all reference to a separate and segregated

reservation for the Hopi within the land affected by

the 1934 Act. A federal court cannot arbitrarily draw

boundary lines where Congress has chosen not to do so.

A-53

As noted in the memorandum and order of April

5, 1978, the Court declines to rule whether the Hopi

are the only “other Indians” referred to by the 1934

Act. Apparently, the Paiute Indians occupied lands

affected by the 1934 Act on June 14, 1934. Cf. 25

U.S.C. § 640d-8. Whether the Paiute Indians are

holders of equitable interests under the 1934 Act can-

not be decided in their absence, and need not be de-

cided in this action under 25 U.S.C. § 640d-7. There-

fore,

IT IS ORDERED:

1. Plaintiff's motion for reconsideration is denied.

2. Counsel for the Navajo tribe will prepare a re-

vised form of judgment. When drafting the revised

form of judgment, counsel will be guided by the fol-

lowing:

(A) The judgment will not set forth a legal boun-

dary description of the lands affected by the

Kixecutive Order of December 16, 1882. The

Court need not consider the exact boundary

line of the lands affected by the 1882 Execu-

tive Order until final determination of the

boundary in supplementary proceedings in

Healing v. Jones, 210 F. Supp. 125 (D.

Ariz. 1962), affd 363 U.S. 758 (1963).

(B) The lands in issue in this action are gov-

erned by the pleadings. Fed. K. Civ. P. 7 (a).

(C) The Court will not at this state of the litiga-

A-54

tion quiet title to any of the lands in issue

in either tribe.

(D) When counsel cannot resolve disputes over

language, counsel will conform the language

of the judgment to the language of the Court's

prior memorandum and order.

Counsel for the Navajo tribe will personally con-

sult with counsel for the Hopi tribe to obtain his ap-

proval of the judgment as to form only. The revised

form of judgment will be lodged with the Court within

ten (10) days from the filing of this order. If counsel

for the Hopi tribe does not agree with the revised form

of judgment, he shall, within five (5) days after the

form of judgment is lodged, file with the Court the

Hopi tribe’s objections or proposed changes and addi-

tions to judgment.

DATED May 15, 1978.

/s/ William P. Copple

United States District Judge

APPENDIX B

STATUTORY PROVISIONS INVOLVED

A-55

48 Stat. 960

73d CONGRESS. SESS. II. CH. 521. JUNE 14,

1934.

[CHAPTER 521.]

AN ACT

To define the exterior boundaries of the Navajo Indian

Reservation in Arizona, and for other purposes.

Be it enacted by the Senate and House of Repre-

sentatives of the United States of America in Congress

assembled, 'That the exterior boundaries of the Navajo

Indian Reservation, in Arizona, be, and they are here-

by, defined as follows: Beginning at a point common

to the States of Arizona, New Mexico, Colorado, and

Utah, thence west along the bx oyndary line between the

States of Arizona and Utah to a point where said boun-

dary line intersects the Colorado River; thence down

the south bank of that stream to its confluence with the

Little Colorado River; thence following the north bank

of the Little Colorado River to a point opposite the

east boundary of the Grand Canyon National Park;

thence south along said east boundary to the south-

east corner of section 5, township 30 north, range 6 east,

Gila and Salt River base and meridian, Arizona; thence

east to the southeast corner of section 4; thence south

to the southwest corner of section 10; thence east to the

southeast corner of section 10; thence south to the south-

west corner of section 14; thence east to the northwest

corner of the northeast quarter section 23; thence south

two miles to the southeast corner of the southwest quar-

A-56

ter section 26; thence west one half mile to the south-

east corner of section 27, township 30 north, range 6

east, Gila and Salt River base and meridian, Arizona;

thence south seven miles to the southwest corner of sec-

tion 35, township 29 north, range 6 east; thence east

one mile; thence south one and one half miles to the

southwest corner of the northwest quarter section 12,

township 28 north, range 6 east; thence east through the

center of section 12 to the range line between ranges 6

and 7 east; thence south along said range line five and

one half miles to the southeast corner of section 1,

township 27 north, range 6 east; thence west three miles

to the southwest corner of section 3, township 27 north,

range 6 east; thence south five miles to the southeast

corner of section 33, township 27 north, range 6 east;

thence east along township line between townships 26

and 27, six and one half miles, to the northeast corner

of the northwest quarter section 3, township 26 north,

range 7 east; thence south two miles to the southeast

corner of the southwest quarter section 10, township 26

north, range 7 east; thence east four and one half miles

to the southeast corner of section 8, township 26 north,

range 8 east; thence north four miles to the northwest

corner of section 28, township 27 north, range 8 east,

Gila and Salt River base and meridian; thence east one

mile to the southeast corner of section 21; thence north

four miles to the northeast corner of section 4, township

27 north, range 8 east, thence east along township line

between townships 27 and 28 north to its intersection

with the Little Colorado River; thence up the middle

of that stream to the intersection of the present west

boundary of the Leupp Extension Reservation created

A-57

by Executive order of November 14, 1901; thence south

along the present western boundary of said extension

to where it intersects the fifth standard parallel north;

thence east along said standard parallel to the southwest

corner of township 21 north, range 26 east, Gila and

Salt River base and meridian; thence north six miles

to the northwest corner of township 21 north, range 26

east; thence east twelve miles to the northeast corner

of township 21 north, range 27 east; thence south two

miles; thence east twelve miles; thence south four miles;

thence east along the township line between townships

20 and 21 north to the boundary line between the States

of New Mexico and Arizona; thence north along said

boundary line to the point of beginning. All vacant, un-

reserved, and unappropriated public lands, including all

temporary withdrawals of public lands in Arizona here-

tofore made for Indian purposes by Executive order

or otherwise within the boundaries defined by this Act,

are hereby permanently withdrawn from all forms of

entry or disposal for the benefit of the Navajo and such

other Indians as may already be located thereon; how-

ever, nothing herein contained shall affect the existing

status of the Moqui (Hopi) Indian Reservation created

by Executive order of December 16, 1882. There are

hereby excluded from the reservation as above defined

all lands heretofore designated by the Secretary of the

Interior pursuant to section 28 of the Arizona Enabling

Act of June 20, 1910 (36 Stat.I.. 575), as being valu-

able for water-power purposes and all lands withdrawn

or classified as power-site lands, saving to the Indians,

nevertheless, the exclusive right to occupy and use such

designated and classified lands until they shall be re-

A-58

quired for power purposes or other uses under the au-

thority of the United States: Provided, That nothing in

this Act contained shall be construed as authorizing the

payment of proceeds or royalties to the Navajo Indians

from water power developed within the areas added to

the Navajo Reservation pursuant to section 1 of this

Act; and the Federal Water Power Act of June 10,

1920 (41 Stat.L. 1063), and amendments thereto, shall

operate for the benefit of the State of Arizona as if such

lands were vacant, unreserved, and unappropriated pub-

lic lands. All valid rights and claims initiated under the

public land laws prior to approval hereof involving any

lands within the areas so defined, shall not be affected

by this Act.

Sec. 2. The Secretary of the Interior is hereby

authorized in his discretion, under rules and regulations

to be prescribed by him, to accept relinquishments and

reconveyances to the United States of such privately

owned lands, as in his opinion are desirable for and

should be reserved for the use and benefit of the Navajo

Tribe of Indians, including patented and nonpatented

Indian allotments and selections, within the counties of

Apache, Navajo, and Coconino, Arizona; and any In-

dian so relinquishing his or her right shall be entitled

to make lieu selections within the areas consolidated for

Indiangpurposes by this Act. Upon conveyance to the

United States of a good and sufficient title to any such

privately owned land, except Indian allotments and

selections, the owners thereof, or their assigns, are here-

by authorized, under regulations of the Secretary of the

Interior, to select from the unappropriated, unreserved,

A-59

and nonmincral public lands of the Uuited States with-

in said counties in the State of Arizona lands approxi-

mately equal in value to the lands thus conveyed, and

where surrendered lands contain springs or living waters,

selection of other lands taken in lieu thereof may be of

like character or quality, such values to be determined

by the Secretary of the Interior, who is hereby author-

ized to issue patents for the lieu lands so selected. In

all selections of lieu lands under section 2 of this Act

notice to any interested party shall be by publication.

Any privately owned lands relinquished to the United

States under section 2 of this Act shall be held in trust

for the Navajo Tribe of Indians; and relinquishments

in Navajo County, Arizona, excluding Indian allot-

ments and selections, shall not extend south of the town-

ship line between townships 20 and 21 north, Gila and

Salt River base and meridian. The State of Arizona

may relinquish such tracts of school land within the

boundary of the Navajo Reservation, as defined by sec-

tion 1 of this Act, as it may see fit in favor of said In-

dians, and shall have the right to select other unreserved

and nonmineral public lands contiguous or noncontigu-

ous, located within the three counties involved equal in

value to that relinquished, said lieu selections to be

made in the same manner as is provided for in the Ari-

zona Enabling Act of June 20, 1910 (36 Stat.L. 558),

except as to the payment of fees or commissions which

are hereby waived. Pending the completion of exchanges

and consolidations authorized by section 2 of this Act,

no further allotments of public lands to Navajo Indians

shall be made in the counties of Apache, Navajo, and

Coconino, Arizona, nor shall further Indian homesteads

A-60

be initiated or allowed in said counties to Navajo In-

dians under the Act of July 4, 1884 (23 Stat.L. 96) ;

and thereafter should allotments to Navajo Indians be

made within the above-named counties, they shall be

confined to land within the boundaries defined by sec-

tion 1 of this Act.

Sec. 3. Upon the completion of exchanges and con-

solidations authorized by section 2 of this Act, the State

of Arizona may, under rules and regulations to be pre-

scribed by the Secretary of the Interior, relinquish to

the United States such of its remaining school lands in

Coconino, Navajo, and Apache Counties as it may see

fit; and shall have the right to select from the vacant,

unreserved, and nonmineral public lands in said coun-

ties lieu lands equal in value to those relinquished with-

out the payment of fees or commissions.

Sec. 4. For the purpose of purchasing privately

owned lands, together with the improvements thereon,

within the boundaries above defined, there is hereby

authorized to be appropriated, from any funds in the

Treasury not otherwise appropriated, the sum of $481,-

879.38, which sum shall be reimbursable from funds ac-

cruing to the Navajo tribal funds as and when such

funds accrue and shall remain available until expended:

Provided, That title to the land so purchased may, in

the discretion of the Secretary of the Interior, be taken

for the surface only: Provided further, That said funds

may be used in purchasing improvements on any land

within said boundaries or on leased State school land

within the boundaries above defined, provided the State

A-61

of Arizona agrees to the assignment of said leases to

the Navajo Tribe of Indians on a renewable and pref-

erential basis, and provided the Legislature of said State

enacts such laws as may be necessary to avail itself

of the exchange provisions contained in section 2 of this

Act, and disclaim any right, title, or interest in and to

any improvements on said lands.

Approved, June 14, 1934.

A-62

Act of December 22, 1974, Pub.L.93-531, 88 Stat. 1715,

Section 8.

25 U.S.C. § 640d—7. Determination of tribal rights

and interests in land—Authorization to commence and

defend actions in District Court

(a) Either tribe, acting through the chairman of

its tribal council for and on behalf of the tribe, is each

hereby authorized to commence or defend in the Dis-

trict Court an action against the other tribe and any

other tribe of Indians claiming any interest in or to the

area described in the Act of June 14, 1934, except the

reservation established by the Executive Order of De-

cember 16, 1882, for the purpose of determining the

rights and interests of the tribes in and to such lands

and quieting title thereto in the tribes.

Allocation of land to respective reservations

upon determination of interests

(b) Lands, if any, in which the Navajo Tribe or

Navajo individuals are determined by the District

Court to have the exclusive interest shall continue to

be a part of the Navajo Reservation. Lands, if any, in

which the Hopi Tribe, including any Hopi village or

clan thereof, or Hopi individuals are determined by

the District Court to have the exclusive interest shall

thereafter be a reservation for the Hopi Tribe. Any

lands in which the Navajo and Hopi Tribes or Navajo

or Hopi individuals are determined to have a joint or

undivided interest shall be partitioned by the District

Court on the basis of fairness and equity and the area

A-63

so partitioned shall be retained in the Navajo Reserva-

tion or added to the Hopi Reservation, respectively.

Authorization for exchange of reservation lands

(c) The Navajo and Hopi Tribes are hereby auth-

orized to exchange lands which are part of their re-

spective reservations.

Denial of Congressional interests in merits of conflicting

claims; liability of United States

(d) Nothing in this section shall be deemed to be

a Congressional determination of the merits of the con-

flicting claims to the lands that are subject to adjudica-

tion pursuant to this section, or to affect the liability of

the United States, if any, under litigation now pending

before the Indian Claims Commission.

Payment of legal fees, court costs and other expenses

(e) The Secretary of the Interior is authorized to

pay any or all appropriate legal fees, court costs, and

other related expenses arising out of, or in connection

with, the commencing of, or defending against, any

action brought by the Navajo or Hopi Tribe under this

section.