Petition — PETER MacDONALD v. ABBOTT SEKAQUAQUAPTEWEWA (Nos. 80-265, 80-258)
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Supreme Court, U.S.
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‘MICHAEL RODAK, JR., CLERK
—
IN THE .
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
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,
Petitioner,
Uv.
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,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
TERRY E. FENZL
222 North Central Avenue
Phoenix, Arizona 85004
(602) 257-8777
Of Counsel:
BROWN & BAIN, P.A. RICHARD SCHIFTER
222 North Central Avenue W. RICHARD WEST, JR.
Phoenix, Arizona 85004 600 New Hampshire Avenue, N.W.
FRIED, FRANK, HARRIS, Washington, D.C. 20037
SHRIVER & KAMPELMAN (202) 342-3500
600 New Hampshire Avenue, N.W. Attorneys for Petitioner
Washington, D.C. 20037 ein iat:
August 21, 1980
Washington, OC ¢ THIEL PRESS « (202) 638-4521
(t)
QUESTIONS PRESENTED
1. Whether the Court of Appeals’ holding that a
statute purporting to establish an Indian reservation
should make “‘mention of title” and that a “‘strict stand-
ard’’ of construction must be applied to such a statute
conflicts with the decisions of this Court and places in
jeopardy what has heretofore been the recognized title
of many Indian tribes to their reservations.
2. Whether the Court of Appeals’ decision that the
Navajo Tribe has no interest in any portion of the Navajo
Reservation upon which the Hopi Tribe may have been
located in 1934 is inconsistent with the decision of this
Court in Healing v. Jones, and is a particularly serious
miscarriage of justice in light of the fact that the oppo-
site result was reached in the Healing case, where the
roles of the two Tribes were reversed.
THE PARTIES
The parties in the proceedings below are too numerous
to be listed. They include the Navajo Tribe of Indians
and all its villages, clans and individual members (esti-
mated to include approximately one hundred sixty
thousand individuals) and the Hopi Tribe of Indians and
all its villages, clans and individual members (estimated
to include approximately nine thousand individuals).
(1)
TABLE OF CONTENTS
Page
i ECETED + bcc esac es scebsessesaenes i
ass caw eee sentence ccecyesse i
5 a deve eke tees pee eens it
i Ee itt
OPINIONS BELOW AND JURISDICTION ............. 1
ee eee 2
BON GME pc ccc ccc ccc ec ececeees 2
SS 2
ee er 4
ET ME MRMMORIEEEINE , cc ccc csc cece ccescsce 6
REASONS FOR GRANTING THE WRIT.............. 7
A. The Court of Appeals’ decision, which holds that
a “‘strict standard’’ must be applied to statutes
purporting to establish Indian reservations, and
that such legislation should make ‘‘mention of
title”, conflicts directly with the decisions of this
Court concerning the criteria for determining
whether Congress has established or recognized
the title of an Indian tribe to reservation lands ........ 7
B. The Court of Appeals’ holding that the Navajo
Tribe, although named explicitly in the 1934 Act,
has no interest in lands within the 1934 area
occupied by the Hopi Tribe is inconsistent with
this Court’s decision in Healing v. Jones ...........4. 15
i es. ews bs bn bee wee kee bs ee eee 17
APPENDICES:
A. The Decision of the District Court................ la
B. The Decision of the Court of Appeals............. 27a
SS I 45a
D. The Act of December 22, 1974 [Excerpt] .......... 47a
E. Executive Order of January 8,1900.............. 49a
(iii)
Page
F. Senate Document No. 68, 56th Cong., Ist Sess.
8 eee ee a eee ee eee ee 50a
G. The Act of May 27, 1902 [Excerpt] ............- 62a
TABLE OF AUTHORITIES
Cases: Page «
Alaska Pacific Fisheries v. United States, 248 U.S. 78
5) Pe re ee ae ea ei St he eee eee ee 10
Bryan v. Itasca County, 426 U.S. 373 (1976).......... 19, 14
Carpenter v. Shaw, 280 U.S. 363 (1930)............ ——
Choate v. Trapp, 224 US G6Eb-LIGIZ) 2 0c cc crwcccveces 10
Hamilton v. Nakai, 453 F.2d 152 (9th Cir. 1971), cert.
dented, 406 UB. DEG (ISTE) 6 oc ccc tease veer cacs 4
Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir. 1974) ..... 4
Healing v. Jones, 210 F. Supp. 125 (D. Ariz. 1962),
OT'd, STS US. TES (IGGS) 6 oe i vi ac ipese 4,6, 7, 15, 16
Hynes v. Grimes Packing Co., 337 U.S. 86 (1949)..... 11, 13, 14
Jones v. Meehan, 175 U.S. 1 (1698)... wc crc scnennes 9
Miami Tribe v. United States, 175 F. Supp. 926 (Ct. Cl.
SR a ce bo co Goce Oe ES a a oe ee ee eA 8
Minnesota v. Hitchcock, 185 U.S. 373 (1902) .......... 9,14
Sac & Fox Tribe v. Licklider, 576 F.2d 145 (8th Cir.
ko ey rere rare ea ow er eee ee eee ee are eee 9
Sekaquaptewa v. MacDonald, 544 F.2d 396 (9th Cir.
1976), cert. denied, 430 U.S.931(1977) ............. 4
Sekaquaptewa v. MacDonald, 575 F.2d 239 (9th Cir.
FEE hie k Ad Key ae Ee ee be ee ek 5
Tee-Hit-Ton Indians v. United States, 348 U.S. 272
CREE SM Acie SV ACe Nak Wid aot ee Pe kee 11, 13, 14
United States v. Klamath and Moadoc Tribes, 304 U.S.
cabs on BER CT re Ps any ee A Seite Ra als A 8
(wv)
Statutes: Page
Act of December 22, 1974, 25 U.S.C. § 640d-7 .......... 2
Pe ee ey 2 a es EN hk oh owe ee ck eee eS 12
pe fe re 12
Act of June 22, 1986, 49 Stat. 1806 .. bw ccc cc cc cee 12
Act of January 17, 1956, 49 Stat. 1094 ..........cccce00 12
AeCGE Fume TE, 80S, 49 Git. SOB 2 cere cees 12
poe fe es > ee 12
Act of Jume 14, 1954, 46 Stat. 960). 6. wc ccccnens passim
FUR Ge Wemreeey 1s, WOe a, Be Beet BO ie i kc cc ecscs 12
Act of February 21, 1951, 46 Stat. 1204 ... wc cccccccee 13
pe gg Se a a 13
Act of February 11, 1920, 45 Stat. 1161 occ cess 12
RCE See ere Bs Ps BEE 5 ics bee oe te hwnd cae 12
Pet oF Bisset 3; 1GRG, 66 Bie. WER. nc cc ccc wc ceen 12
po Be ee 12
Act of Miey 21, 1006, $6 Giat. G14... cece cc ccecn 12
At Ol Mia 40, 1986, S64 Gta 406 oc eect ccc nes 12
oe Bt a. or are 12
PCE OE Feat 4, THES, BEB, OEE ww cece eeeaee 13
PEE Be BORD, BNE: TE ics ec et hc caeweenas 13
Act of May 27, 1902, 32 Stat. 245 ........ 4,5,6, 10, 11, 13
I Ue oan aon oa 8G bw hcecacad vine ek A 2
Se A I Wo rhc se whs-gb a a ak as eke We ce ee 4
Legislative and Executive Materials:
Executive Order of January 8,1900............ceevees 4
Executive Order of December 16,1882 .............. 7, 16
(v)
Page
Proposed Amendments Relating to the Relocation of
Certain Hopi and Navajo Indians Pursuant to the Act
of December 22, 1974: Hearings on S. 751 and
S. 1077 Before the Senate Select Comm. on Indian
Affairs, 96th Cong., Ist Sess. (1979) .........0 ccc eee 16
Senate Document No. 68, 56th Cong., Ist Sess.
RRP a EPs angen tet ho ela ae Nye 6,11, 14
Other Authorities:
Berman, The Concept of Aboriginal Rights in The Early
Legal History of the United States, 27 Buffalo L. Rev.
SOF SOD: 8 6k ewR SER OR ae ee Ree ee eee 8
Cohen, F., Handbook of Federal Indian Law (1942) ....... 8,9
Comment, Indian Land Claims Under the Nonintercourse
Pe ee, err Te ee 8
Schifter and West, Healing v. Jones: Mandate for Another
Trail of Tears?, 51 N. Dak. L. Rev. 73 (1974) .......... 6
Tt «2 @2 @ «
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1980
No.
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,
Petitioner,
v.
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,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
OPINIONS BELOW AND JURISDICTION
The decision of the United States District Court for
the District of Arizona (Copple, J.), entered on April 5,
1978, wherein the Court ruled upon cross-motions for
summary judgment, is reported at 448 F. Supp. 1183
(D. Ariz. 1978) and is attached as Appendix A. The
opinion of the Court of Appeals (Skopil, J.), entered
on May 23, 1980, affirming in part and reversing in
part the decision of the District Court, is presently
unreported and is attached hereto as Appendix B. This
]
2
Court’s jurisdiction is invoked pursuant to 28 U.S.C.
§ 1254(1).
STATUTES INVOLVED
The District Court and the Court of Appeals have
interpreted the meaning and effect of the Act of June 14,
1934, 48 Stat. 960,! a copy of which is attached hereto
as Appendix C. The District Court’s jurisdiction over the
controversy was conferred, and the issues were defined,
by Section 8 of the Act of December 22, 1974, 25
U.S.C. § 640d-7, a copy of which is attached as Appen-
dix D.
STATEMENT OF THE CASE
A. Proceedings Below.
Pursuant to the jurisdictional authority contained in
Section 8 of the Act of December 22, 1974 (App. D),
on December 30, 1974 the Hopi Tribe filed a complaint
in the District Court alleging that the Navajo Boundary
Act (App. C) had granted the Hopi Tribe an undivided
one-half interest in all lands within the boundary de-
scribed in the 1934 Act, excepting certain tracts specifi-
cally excluded from the complaint. The Navajo Tribe
filed an answer to the complaint on February 10, 1975,
asserting that the Navajo Tribe’s interest in the 1934
area was exclusive.
Pursuant to stipulation, the District Court entered a
pretrial order limiting the initial proceedings to the
single issue of determining the meaning and effect of the
1The Act of June 14, 1934, 48 Stat. 960, entitled “An Act to
define the exterior boundaries of the Navajo Indian Reservation
in Arizona, and for other purposes,’ is hereinafter sometimes
referred to as ‘‘the Navajo Boundary Act”’ or “‘the 1934 Act.”
3
Navajo Boundary Act. Specifically, the key language
which was to be construed appears in Section 1 of the
legislation, as follows:
Be it enacted . . . That the exterior boundaries of
the Navajo Indian Reservation, in Arizona, be, and
they are hereby, defined as follows: [legal descrip-
tion omitted]... . All vacant, unreserved, and un-
appropriated public lands, including all temporary
withdrawals of public lands in Arizona heretofore
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; however, nothing herein contained
shall affect the existing status of the Moqui (Hopi)
Indian Reservation created by Executive order of
December 16, 1882. (App. C.)
Pursuant to the foregoing order, in April, 1977, the Hopi
Tribe and the Navajo Tribe filed motions for summary
judgment as to the meaning and effect of the 1934 Act.
In a Memorandum and Order dated April 5, 1978, the
District Court held that the Navajo Tribe, as the tribe
whose reservation was expressly enlarged and defined by
the 1934 Act, has an interest in the entire area described
in that legislation. Furthermore, in rejecting the Hopi
Tribe’s claim to a one-half interest in all of the 1934
area, the District Court determined that the Hopi Tribe
has a one-half interest in only those portions of the
Navajo Reservation upon which the Hopi Tribe was
“located” in 1934. Finally, the District Court held that,
within the meaning of the 1934 Act, all subject lands
were ‘“‘unreserved and unappropriated” as of 1934,
including the area withdrawn by the Executive Order of
January 8, 1900 (App. E) and referred to as part of the
4
Navajo Indian Reservation in the Act of May 27, 1902
(App. G) and in subsequent statutes.
The Hopi Tribe and the Navajo Tribe filed interlocu-
tory appeals under 28 U.S.C. § 1292(b). On May 23,
1980, the Court of Appeals handed down an opinion
which affirmed in part and reversed in part the decision
of the District Court. The Court of Appeals, in reversing
a portion of the lower court’s judgment, determined that
the Hopi Tribe’s interest in those areas it occupied in
1934 was exclusive, or, conversely, that the Navajo Tribe
had no interest in such lands. The Court of Appeals
affirmed the District Court’s finding that all subject
lands, including the area set aside by the Executive
Order of January 8, 1900, were ‘‘unreserved and unap-
propriated”’ within the meaning of the 1934 Act.
B. Statement of Facts.
The Navajo Reservation was established by treaty in
1868 and was enlarged by a series of Presidential Execu-
tive Orders and Acts of Congress? as additional lands
became needed to support a growing Navajo population.
2The Navajo Reservation was enlarged or ratified by Executive
Orders in 1878, 1880, 1884, 1900, 1901, 1907, 1908, 1913, 1917
and 1918 and by Acts of Congress in 1902, 1930, 1931 and 1934.
In the midst of the Navajo Reservation is a reservation estab-
lished by Presidential Executive Order in 1882 ‘“‘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 1882
reservation was occupied and claimed by both Hopi and Navajo
Indians, and the Tribes’ respective rights and interests in the 1882
reservation have been litigated in other cases. Healing v. Jones,
210 F.Supp. 125 (D. Ariz. 1962), aff’d, 373 U.S. 758 (1963);
Hamilton v. Nakai, 453 F.2d 52 (9th Cir. 1971), ce:t. denied,
406 U.S. 945 (1972); Hamilton v. MacDonald, 503 F.2d 1138
(9th Cir. 1974); Sekaquaptewa v. MacDonald, 544 F.2d 396 (9th
[footnote continued]
5
One such enlargement was accomplished by the Execu-
tive Order of January 8, 1900 and the Act of May 27,
1902. The events leading to that enlargement began in
the late 1890’s when the Acting Secretary of the Interior
directed James McLaughlin, a United States Indian
Inspector, to examine the area located to the west and
south of what was then the Navajo Reservation (App. F,
at 54a). By letter to the Secretary, dated June 13, 1899,
Inspector McLaughlin submitted a “report with reference
to increasing the Navajo Indian Reservation,’ which
recommended an “extension of the Navajo reservation”’
to include the lands later withdrawn under the Executive
Order of January 8, 1900 (App. F, at 56a).
The Secretary of the Interior subsequently recom-
mended to the President, by correspondence dated
January 5, 1900, that the lands previously examined
by Inspector McLaughlin be added to the Navajo Reser-
vation (App. F, at 5la). Specifically, the Secretary
requested that Congress appropriate $48,000 to purchase
the improvements which had been constructed in the area
by non-Indian settlers, and further suggested that the
President should issue an Executive Order withdrawing
the lands from further entry pending Congressional
action.
The President accepted the Secretary’s recommenda-
tions, issuing the requested Executive Order and trans-
mitting the relevant correspondence and documents to
Cir. 1976), cert. denied, 430 U.S. 931 (1977); Sekaquaptewa v.
MacDonald, 575 F.2d 239 (9th Cir. 1978). Accordingly, the 1882
area has been expressly excluded from this litigation.
The patchwork growth of the Navajo Reservation is illustrated
on a map appearing in the District Court’s opinion, 448 F. Supp.
at 1185 (App. A, at 2a). The Hopi Tribe’s claim in this litigation
covers the entire area shown by the map, excluding the parcels
designated 1868, 1882, 1930 and 1931.
6
the Congress, where they were printed as Senate Docu-
ment No. 68, entitled ‘Enlargement of Navajo Indian
Reservation, in Arizona’ (App. F). The foregoing docu-
ment was explicitly incorporated by reference in the
Act of May 27, 1902, which in relevant part appropriated
$48,000 “[fjor the purchase of the right, title and
improvements of certain settlers within the external
boundries [sic] of the Navajo Indian Reservation in
Arizona, as set out in the communication of the Secre-
tary of the Interior to the President, dated January fifth,
nineteen hundred, and printed in Senate Document
Numbered Sixty-eight, of date of January tenth, nine-
teen hundred.” App. G.
SUMMARY OF ARGUMENT
Legal authorities, including the decisions of this Court,
long have held that Congressional legislation establishing
an Indian reservation need not do so in an explicit or
highly formalized fashion. A Congressional enactment
which reflects an intent to appropriate specified lands for
Indian purposes has always been considered sufficient.
Thus, the Court of Appeals departed significantly from
the established precedents of this Court when it held
that a ‘“‘strict standard”? must be applied in construing a
statute purporting to create an Indian reservation, and
that such legislation should make ‘‘mention of title’’
in order to grant Indians permanent occupancy rights.
Furthermore, the decision of the Court of Appeals places
in jeopardy the interests of numerous other Indian tribes
in their statutory reservations.
In Healing v. Jones, 210 F. Supp. 125 (D. Ariz. 1962),
aff’d, 373 U.S. 758 (1963), the Court determined the
respective interests of the Hopi and Navajo Tribes in
7
an area set aside pursuant to the Executive Order of
December 16, 1882, which withdrew lands ‘‘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 decision ruled that
because the Hopi Tribe was explicitly mentioned in the
withdrawal order, the Hopi Tribe possessed a one-half
interest even in those lands occupied exclusively by
Navajos. With respect to the Navajo Boundary Act,
the situation is reversed, with the Navajo Tribe being
expressly named in the Act and the Hopi Tribe claiming
to be the “other Indians.” The Court of Appeals held,
however, in direct conflict with the rule affirmed by
this Court in the Healing case, that the Navajo Tribe,
although explicitly named in the 1934 Act, has no
interest whatsoever in lands occupied by the Hopi Tribe
in the 1934 area.
REASONS FOR GRANTING WRIT
A. The Court of Appeals’ decision, which
holds that a “strict standard’”’ must be
applied to statutes purporting to establish
Indian reservations, and that such legis-
lation should make “mention of title”’,
conflicts directly with the decisions of
this Court concerning the criteria for
determining whether Congress has estab-
lished title of an Indian tribe to reserva-
tion lands.
Since the earliest years of the Republic, the respective
land rights of Indian tribes and the Federal Government
have been at the core of the relationship between Indians
8
and the United States. As the basic maxims of Federal
Indian law developed, “recognized title’* of an Indian
tribe to the land which it occupied became a critically
important legal term. “‘Recognized title’ (in contrast to
lesser rights of occupancy which might be extinguished
at will) is an Indian interest in land which Congress has
agreed to respect and which is protected by the Fifth
Amendment and cannot lawfully be taken from the
Indian owners except upon payment of just compen-
sation.S Recognized title is generally considered the most
secure and desirable form of Indian tribal ownership.
Recognized Indian title can arise in a number of ways.
A noted authority on Federal Indian law, former Acting
3See F. Cohen, Handbook of Federal Indian Law xxi-xxiii
(1942); Comment, J/ndian Land Claims Under the Nonintercourse
Act, 44 Alb. L. Rev. 110 (1979); Berman, The Concept of Abo-
riginal Rights in the Early Legal History of the United States,
27 Buffalo L. Rev. 637 (1978).
4See Miami Tribe v. United States, 175 F. Supp. 926, 936, 940
(Ct. Cl. 1959):
Where Congress has by treaty or statute conferred 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’,
“recognized title’, and ‘acknowledged title’... . [T]here
exists no one particular form for such Congressional recog-
nition or acknowledgement of a tribe’s right to occupy
permanently land and that right may be established in a
variety of ways.
* + ba
By ‘“‘recognition’’, the courts have meant that Congress
intended to acknowledge, or if one prefers, to grant, to
Indian tribes rights in land which were in addition to the
Indians’ traditional use and occupancy rights exercised only
with the permission of the sovereign.
5 See, e.g., United States v. Klamath and Moadoc Tribes, 304
U.S. 119 (1938).
9
Solicitor of the Department of the Interior Felix S.
Cohen, has written that no particular formulation is re-
quired to establish Indian tribal rights in land. F. Cohen,
Handbook of Federal Indian Law 291 (1942), citing
Minnesota v. Hitchcock, 185 U.S. 373, 389-90 (1902):
Now, in order to create a reservation it is not neces-
sary that there should be a formal cession or a
formal act setting apart a particular tract. It is
enough that from what has been done there results
a certain defined tract appropriated to certain
purposes.
The principle of Minnesota v. Hitchcock has become
firmly embedded in Federal Indian law and as questions
of Indian rights to land continue to arise, the courts
often fall back on the words enunciated in the 1902
Hitchcock opinion.®
Another equally fundamental principle of Indian law
mandates that the language of treaties or statutes affect-
ing Indians must be construed by resolving any doubt
in favor of the Indians. In the oft-cited words of Chief
Justice Marshall in Worcester v. Georgia, 31 U.S. (6 Pet.)
515, 582 (1932):
The language used in treaties with the Indians
should never be construed to their prejudice... .
How the words of the treaty were understood by
this unlettered people, rather than their critical
meaning, should form the rule of construction.
Accord, Jones v. Meehan, 175 U.S. 1, 11 (1899). Though
©The continuing vitality of Minnesota v. Hitchcock is illustrated
by Sac & Fox Tribe v. Licklider, 576 F.2d 145 (8th Cir. 1978),
wherein the Court held, on the authority of Minnesota v. Hitch-
cock, that an Indian reservation had been created by various
Federal actions, none of which involved a formal grant of title.
10
the foregoing canon of construction was initially formu-
lated in the context of Indian treaties, this Court long
ago applied it also to statutes affecting Indian interests:
[T]he general rule [is] that tax exemptions are to be
strictly construed ....
But in the Government’s dealings with the Indians
the rule is exactly the contrary. The construction,
instead of being strict, is liberal; doubtful expres-
sions, instead of being resolved in favor of the
United States, are to be resolved in favor of a weak
and defenseless people, who are wards of the nation,
and dependent wholly upon its protection and good
faith. This rule of construction has been recognized,
without exception, for more than a hundred years
and has been applied in tax cases.
Choate v. Trapp, 224 U.S. 665, 674-75 (1912). Accord,
Bryan v. Itasca County, 426 U.S. 373, 392 (1976);
Carpenter v. Shaw, 280 U.S. 363, 366-67 (1930); Alaska
Pacific Fisheries v. United States, 248 U.S. 78, 89 (1918).
Both of the foregoing well-established legal principles
are flatly contradicted by the decision of the Court of
Appeals in this case. The Navajo Tribe contends that a
specific area of land, which is now part of the Navajo
Indian Reservation, was “recognized”’ by Congress as
Navajo Indian land under the Act of May 27, 1902, 32
Stat. 245 (hereinafter referred to as the “£1902 Act’’).
The Court of Appeals rejected that contention, deni-
grating the 1902 Act because:
A strict standard applies in determining whether
legislation transfers or recognizes compensable
tote...
1]
The [1902 Act] makes no direct or indirect
mention of title. [App. B, at 34a.]7
As support for the foregoing ruling, the Court of Appeals
cited Tee-Hit-Ton Indians v. United States, 348 U.S.
272 (1955), and Hynes v. Grimes Packing Co., 337 U.S.
86 (1949).
_ The appellate court misapplied the holdings in those
cases. Indeed, the Tee-Hit-Ton case, 348 U.S. at 278.
stressed the very proposition which the Navajo Tribe
has advanced in this litigation and which the Court of
Appeals has overlooked:
There is no particular form for congressional recog-
nition of Indian right of permanent occupancy.
Neither the Tee-Hit-Ton case nor Hynes v. Grimes sup-
ports the “strict standard’’ of construction applied by
the Court of Appeals or requires that there should be
“mention of title” in order to establish an Indian reser-
vation. Indeed, those cases confirm that recognized
Indian title will be upheld if such title is established or
ratified by statute and in that respect they support the
Navajo position.
The holding that a “strict standard’’ applies in con-
struing legislation that is claimed to recognize Indian
title and the implication that such acts must make
“direct or indirect mention of title” carries far-reaching
7The Court of Appeals further stated that “[t]he Navajos do
not point to convincing legislative history to support their posi-
tion” (App. B, at 34a). However, it appears from that opinion
that the appellate court overlooked or ignored the most significant
elements of the legislative history, Doc. No. 68 (App. F), particu-
larly the letter of the Secretary of the Interior of January 5, 1900
(App. F, at 5la), recommending the establishment of the reser-
vation, both of which were, by reference, incorporated into the
tatute. See App. B, at 34a, n.4.
12
consequences since it casts a cloud over the title of a
great many Indian tribes.®
Applying the foregoing fundamental legal principles
to the relevant facts of this case (see Statement of Facts,
supra, and App. E, F nd G), the Navajo Tribe contends
that the Navajo Boundary Act may have given the Hopi
Tribe a potential interest in lands newly added (z.e.,
previously ‘‘unreserved and unappropriated”’) to the
enlarged Navajo Reservation in 1934, but in no event
could the Hopi Tribe have an interest in lands to which
the Navajo Tribe obtained recognized title prior to
1934, The Navajo Tribe further contends that the land
described in the Executive Order of January 8, 1900
was incorporated into the Navajo Reservation through
8The following are among the numerous statutes which have
established Indian reservations without “‘direct or indirect mention
of title’? and the Indians whose title would be in jeopardy under
the ruling of the Court of Appeals:
Act of May 28, 1937, 50 Stat. 241 (Koosharem Band of
Paiute Indians in Utah); Act of April 22, 1937, 50 Stat. 72
(Capitan Grande Band of Mission Indians); Act of June 22,
1936, 49 Stat. 1806 (Walker River Indian Reservation;
Act of January 17, 1936, 49 Stat. 1094 (Indians of Fort
McDermitt, Nevada); Act of June 20, 1935, 49 Stat. 393
(Kanosh Band of Indians of Utah); Act of May 14, 1935,
49 Stat. 217 (Rocky Boy Indian Reservation); Act of
February 12, 1932, 47 Stat. 50 (Skull Valley Indian Reser-
vation); Act of February 11, 1929, 45 Stat. 1161 (Kanosh
Band of Indians in Utah); Act of February 11, 1929, 45
Stat. 1161 (San Ildefonso Pueblo); Act of May 23, 1928,
45 Stat. 717 (Indians of Acoma Pueblo); Act of March 3,
1928, 45 Stat. 162 (Indians of Indian Ranch, Inyo County,
California); Act of March 3, 1928, 45 Stat. 162 (Koosharem
Band of Indians in Utah); Act of June 1, 1926, 44 Stat. 679
(Morongo Indian Reservation); Act of May 21, 1926, 44
Stat. 614 (Makah and Quileute Indians); Act of May 10,
1926, 44 Stat. 496 (Mesa Grande Reservation); and Act of
April 12, 1924, 43 Stat. 92 (Zia Pueblo).
13
the 1902 Act, and was thereafter repeatedly recognized
by Congress as the ‘“‘Western Navajo Reservation” in sub-
sequent legislation.? Finally, the Navajo Tribe contends
that the recognized Indian title of the Navajo Tribe
which vested in 1902 was not and could not be divested
by the ‘‘other Indians” language in the 1934 Act.
Congress first recognized and confirmed the title of
the Navajo Tribe by the language! of the 1902 Act,
whereby Congress appropriated $48,000 for
the purchase of the right, title and improvements
of certain settlers within the external boundries
[stc] of the Navajo Indian Reservation in Arizona,
as set out in the communication of the Secretary
of the Interior to the President, dated January fifth,
nineteen hundred, and printed in Senate Document
Numbered Sixty-eight, of date of January twenty,
nineteen hundred. [Emphasis added.] (App. G.)
9See Act of June 30, 1913, 38 Stat. 77; Act of August 1, 1914,
38 Stat. 582; Act of May 23, 1930, 46 Stat. 378; and Act of
February 21, 1931, 46 Stat. 1204.
10In contrast to the 1902 Act, the statutes at issue in the Hynes
and Tee-Hit-Ton cases contained little or no indication that
Congress intended to make permanent reservations of rights
or lands in favor of Indians. In the Hynes opinion, this Court
observed that the Congressional enactment at issue stated only
that “for the purpose of protecting and conserving the fisheries
of the United States in all waters of Alaska the Secretary of
Commerce from time to time may set apart and reserve fishing
areas in any of the waters of Alaska over which the United States
has jurisdiction. . . .’ Hynes v. Grimes Packing Co., 337 U.S. at
92-93. In the Tee-Hit-Ton case the statute provided on its face
that ‘“‘the terms under which such persons may acquire title to such
lands is reserved for future legislation by Congress.’ Tee-Hit-Ton
Indians v. United States, 348 U.S. at 278 n.10. Clearly, those
statutes do not begin to approximate the clarity of Congressional
intention which appears in the 1902 Act.
14
It is significant that the statute incorporates its own
legislative history by reference. Senate Document No. 68
sets forth the correspondence within the Interior Depart-
ment which caused the Secretary of the Interior to
recommend to the President the enlargement of the
Navajo Reservation and to request the appropriation of
$48,000 to purchase the rights of non-Indian settlers
within the area to be added to the reservation (App. F,
at 51-53a). Pending Congressional action, the Secretary
recommended issuance of an Executive Order withdraw-
ing the lands in issue from entry, which recommendation
was accepted by the President. (/d.) The President
issued the Executive Order and transmitted the docu-
ments to the Congress, where they were printed as a
Senate Document entitled “Enlargement of Navajo
Indian Reservation, in Arizona’. That document was
incorporated by reference in the statute, which clearly
constituted Congressional recognition of the Navajo right
to permanent occupancy of the area. Thus, because the
Congress in 1902 established recognized title in the
Navajo Tribe to the land here in issue, the Navajos submit
that Congress did not and could not give the Hopi an
interest in portions of tht land in 1934.
In light of the foregoing, Petitioner submits that the
Court of Appeals has tampered with legal principles
which lie at the core of the relationship between the
Federal Government and Indian tribes. Its decision is
in conflict with the decisions of this Court in Minnesota
v. Hitchcock and the long line of cases stretching from
Worcester v. Georgia to Bryan v. Itasca County. More-
over, the lower court has misconstrued the decisions of
this Court in Tee-Hit-Ton Indians v. United States, and
Hynes v. Grimes Packing Co. Because of the broad
implications of the decision below for Indian rights in
15
reservation lands, this case is particularly appropriate for
review and correction by this Court.
B. The Court of Appeals’ holding that the
Navajo Tribe, although named explicitly
in the 1934 Act, has no interest in lands
within the 1934 area occupied by the
Hopi Tribe is inconsistent with this
Court’s decision in Healing v. Jones.
The Hopi Tribe’s claim of an interest is based entirely
on the “‘other Indians” phrase in the Navajo Boundary
Act. The District Court ruled that the Navajo Tribe
(being the Tribe named in the Navajo Boundary Act) has
an interest in the entire Navajo Reservation and that the
Hopi Tribe, if it can prove that it was “located” on the
Reservation in 1934, is entitled to a one-half interest
in the lands on which it was “‘located’’. In so ruling,
the District Court properly reached the only decision
which would have been consistent with Healing v. Jones,
210 F.Supp. 125 (D. Ariz. 1962), aff’d, 373 U.S. 758
(1963). Without even discussing the rule of Healing v.
Jones, the Court of Appeals reversed and held that the
Navajo Tribe has no interest in any portion of the Navajo
Reservation upon which the Hopi Tribe was located
in 1934. The Court of Appeals decision is squarely in
conflict with the decision of this Court in Healing v.
Jones.
In Healing v. Jones, the Hopi Tribe sought to evict all
Navajo Indians who had been settled on a reservation
which had been established in 1882 ‘‘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.” 210 F. Supp. at 129. In that case, the United
States District Court for the District of Arizona held, and
16
this Court affirmed, that the Hopi Tribe, as the tribe
which was named in the 1882 Executive Order, had a
one-half interest in all lands which were possessed exclu-
sively by Navajos, while the Navajo Tribe, as the ‘‘other
Indians” referred to in the 1882 grant, enjoyed only the
remaining one-half interest in lands exclusively occupied
by Navajos. In the circumstances presented inside the
1882 Reservation, the roles of the Navajo and Hopi
Tribes were the reverse of those which appear in the
present case (1.e., the 1882 Executive Order identified
the Hopi Indians as the “named” tribe and the Navajo
Tribe’s rights were derived from an “‘other Indians”’
provision, while the Navajo Boundary Act named the
Navajo Tribe and it is the Hopi Tribe which is claiming
rights as “other Indians’’), but the same rule of law
should be applied to both situations.
The Healing decision has profoundly touched the lives
and homes of countless Navajo people, since thousands
of them are being uprooted and forced to relocate from
the homes which they and their ancestors have occupied
for generations.!!_ The Navajos simply do not understand
why they are not entitled to the benefit of the same legal
principle which has been such a burden to them. Indeed,
regardless of past hardships, there is simply no plausible
explanation why the Federal Courts should not even-
handedly and uniformly apply a single rule to both
Tribes.
11Approximately 5,600 Navajos will be forced to relocate ‘‘from
the only homes they have ever known.’ See Proposed Amend-
ments Relating to the Relocation of Certain Hopi and Navajo
Indians Pursuant to the Act of December 22, 1974: Hearings on
S. 751 and §. 1077 Before the Select Comm. on Indian Affairs,
96th Cong., Ist Sess. 36, 80-81. (1979). Cf. Schifter and West,
Healing v. Jones: Mandate for Another Trail of Tears? 51 N. Dak.
L. Rev. 73 (1974).
17
Thus, the decision of the Court of Appeals is not only
of legal significance, but also of personal significance
to the lives of the people affected and to their perception
of evenhanded justice. In the circumstances, this Court
should review the decision of the Court of Appeals.
CONCLUSION
For the foregoing reasons, Petitioner Peter MacDonald,
for and on behalf of the Navajo Tribe of Indians, respect-
fully prays that a Writ of Certiorari be issued to review
the decision of the Court of Appeals entered on May 23,
1980, as to the questions presented herein.
Respectfully submitted,
TERRY E. FENZL
222 North Central Avenue
Phoenix, Arizona 85004
(602) 257-8777
RICHARD SCHIFTER
W. RICHARD WEST, JR.
600 New Hampshire Avenue, N.W.
Washington, D.C. 20037
(202) 342-3500
Attorneys for Petitioner,
Peter MacDonald
18
Of Counsel:
BROWN & BAIN, P.A.
222 North Central Avenue
Phoenix, Arizona 85004
FRIED, FRANK, HARRIS,
SHRIVER & KAMPELMAN
600 New Hampshire Avenue, N.W.
Washington, D.C. 20037
August 21, 1980
APPENDIX
la
APPENDIX A
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
No. Civ. 74-842 Pct. WPC
[April 5, 1978]
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,
Vv.
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.
John S. Boyden, George J. Romney, Scott C. Pugsley
of Boyden, Kennedy, Romney & Howard, Salt Lake
City, Utah, Philip E. von Ammon, Donald R. Gilbert of
Fennemore, Craig, von Ammon & Udall, Phoenix, Ariz.,
for plaintiff.
"
Paul F. Eckstein, Terry E. Fenzl of Brown & Bain,
Phoenix, Ariz., Richard Schifter of Fried, Frank, Harris,
Shriver & Kampelman, Washington, D.C., for defendant.
2a
MEMORANDUM AND ORDER
Copp.e, District Judge.
Pursuant to 25 U.S.C. § 640d-7, the Hopi tribal chair-
man commenced an action in this district to determine
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 boundaries of the
Navajo Reservation in northeastern Arizona, and conveys
an equitable interest in certain of these lands to the
Navajo and “‘such other Indians as 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
ipaeninentilcaacnensih.
1884
1878
1868
1882
1880 i:
Soe
on —_—Winden_Reshall
19DO1 19D34 | meee 934
O
N
Helpreet
'The 1868 rectangle was made a part of the Navajo Reservation
by treaty. Treaty with the Navajos, June 1, 1868, 15 Stat. 667.
[footnote continued]
3a
to illustrate the area. Events surrounding the 1882
rectangle, although not directly related to this case,
form the backdrop of this suit. The 1882 parcel was
withdrawn by Executive 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 F.Supp. 125 (D. Ariz. 1962),
aff’d, 373 U.S. 758, 83 S.Ct. 1559, 10 L. Ed. 2d 703
(1963). Healing documents 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 amended
complaint,? and on cross-motions for partial summary
judgment regarding the meaning of the 1934 Act.3
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).
2Plaintiff’s motion to file an amended complaint was granted
in August 1977 without reaching the merits of the Navajo opposi-
tion. The defendant has not reintroduced these objections by a
motion to dismiss. However, insofar as the Navajos’ objections to
the amended complaint rest upon jurisdictional grounds, the Court
will consider these issues sua sponte.
3Both tribes have collected and filed volumes of documents to
bolster their interpretation of the 1934 Act (hereinafter cited as
[footnote continued]
4a
These motions raise questions of subject matter Jjuris-
diction and collateral estoppel, and three overlapping
issues as to the construction of the 1934 Act: (1) what
property was granted by the 1934 Act, (2) who are the
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. 456.11 [1.-8]. Of course, Rule 56 does
not relieve counsel from laying a proper evidentiary foundation.
United States v. Dibble, 429 F.2d 598 (9th Cir. 1970). For
example, the Court cannot consider witness interviews presented
by the Hopi tribe because they are not properly authenticated.
See Hopi Ex. 233, 234, 235 and 236. The major objections of
the tribes presented raise issues of relevancy. Statutory construc-
tion 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 hearsay rule. Fed. R. Evid. 803(16).
However, statements made by Indian representatives or adminis-
trative 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 particular situation then existing,
and. subsequent events or interpretations cannot diminish or
enlarge the effect of the 1934 Act. Cf. C. Sands, supra § 49.02.
The Court will therefore not consider 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 of the over 100
exhibits objected to. The admissibility of the buik of the docu-
ments is stipulated to. The Court will explicitly cite which docu-
ments among these that are relied upon in the text. For purposes
of appeal, the Court adds that even assuming all the proffered
exhibits are admitted, the Court’s conclusions would not differ.
5a
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 discussed
seriatim.
A. Subject Matter Jurisdiction
The original complaint, brought by the tribal chairman
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 representational 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.
The statute granting federal jurisdiction over the
Hopi-Navajo land dispute within the 1882 Reservation
authorized the tribal chairman to represent both tribe,
villages, clans, and individual Indians. Act of July 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) (“Either
4An 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).
6a
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
representational capacity. Section 640d-7(b) orders
the Court to determine any lands in which the Hopi
tribe, including villages, clans, and individuals, have an
exclusive interest. Section 640d-17(c) authorizes
supplemental actions on behalf of the tribe, villages,
clans, and individual members. Construing the jurisdic-
tional statute 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 juris-
diction 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 sections
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 jurisdiction
of a federal court to issue ancillary bills to effectuate a
court decree. See Hamilton v. Nakai, 453 F.2d 152,
157 (9th Cir. 1972), cert. denied, 406 U.S. 945, 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
peaceable enjoyment of the reservation lands.’’ More-
over, 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.”’ Jd. at 156.
Section 640d-7 grants the Court jurisdiction to quiet
7a
title and partition jointly held land. Damages is not the
object or purpose of the jurisdictional grant. Further-
more, Congress explicitly authorized an action for an
accounting in supplemental proceedings in Healing. See
25 US.C. § 640d-17(a). Congressional silence pre-
sumably 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 without
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 long
time’ prior to the loss of the property.’ Sac & Fox Tribe
v. United States, 161 Ct.Cl. 189, 315 F.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.
8a
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 com-
pensation as to all lands outside the 1882 Reservation
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),
aff'd, 373 U.S. 578, 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
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 conferred
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 ‘‘acknowl-
edged title.’ As noted by the Commission, 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
9a
recognized 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; F. 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. ¥ 0.443[1].
Nonetheless, the Navajo tribe argues that issues per-
taining 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, 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.
SThe brief is reproduced at Navajo Ex. E, Appendix to
Navajo Motion for Partial Summary Judgment, Sekaquaptewa v.
MacDonald, 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, Sekaquap-
tewa v. MacDonald, Civ. 74-842, Docket No. 44 (April 26, 1977).
10a
C. What Property Was Granted by the
1934 Act
The relevant granting clause of the 1934 Act follows:
. That the exterior boundaries of the Navajo
Indian Reservation, in Arizona, be, and they are
hereby, defined as follows ... [boundary descrip-
tion]. All vacant, unreserved, and unappropriated
public lands, including all temporary withdrawals
of public lands in Arizona heretofore 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; 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, unreserved,
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 with-
drawals of public lands in Arizona.”
The Hopis argue that all executive order withdrawals
of public land prior to June 1934 were ‘‘temporary.”’ An
executive order reservation grants an Indian tribe only a
“mere temporary and cancellable possessory 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
lla
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 differ
from treaty or statutory reservations. The one
difference is that so long as Congress has not recog-
nized compensable interests in the Indians, exec-
utive order reservations may be terminated by
Congress or the Executive without payment of
compensation.
United States v. Southern Pacific Transportation Co.,
543 F.2d 676, 687 (9th Cir. 1976). The Court agrees
that a “‘temporary withdrawal” under the 1934 Act refers
to the unique status of an executive order reservation as
opposed to legislatively conferred, compensable “recog-
nized title.’’7
7The Navajo tribe attempts to distinguish temporary from
permanent withdrawals in a more abstract manner. The argument
begins with United States v. Midwest Oil Co., 236 U.S 459, 35
S.Ct. 309, 59 L. Ed. 673 (1915). In Midwest Oil, the Court held
that the President had the power to withdraw public lands from
potential mining claims pending further legislation. The Court
found that Congress had granted this power to the Executive by a
history of long acquiescence. The Midwest 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 reservations,— 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 distinction between a reservation and a
withdrawal,— between a reservation for a purpose not pro-
vided 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
[footnote continued]
12a
The Navajo tribe argues that certain executive order
withdrawals still fall outside the 1934 Act. The tribe
‘easons that Congress recognized title in the Navaio to
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 includes 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 Pickett 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, location, 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 “exploration, discovery, occupation, and pur-
chase under the mining laws.” Jd. § 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 General 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 legislated only as to temporary withdrawals, and did
not touch permanent executive order withdrawals.
It is desirable to point out preliminarily that there is a recog-
nized difference between the two kinds of withdrawals. It is
true the Supreme Court stated in the Midwest case ... that
there was no distinction in principle between a permanent
reservation and a temporary withdrawal. But it seems clear
the Court was referring to the question of power, not to
types of withdrawal. The Court referred to differing factual
[footnote continued]
l3a
some areas within the 1934 boundary bill before its
passage. For example, an Appropriations Act of May 27,
1902, 32 Stat. 264, recognized a Navajo compensable
situations in which one type is used and not the other. Thus
it gave instances of withdrawals in aid of legislation (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 reservations, 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 temporarily for a purpose within
the 1910 Act, but for permanent use by the Government for
other and authorized uses, the mining laws made applicable
to lands withdrawn under the 1910 Act do not apply ....
This is so notwithstanding the withdrawal now contemplated
and any other permanent withdrawal may be temporary in
the very broad sense that they may be subsequently revoked
by the President or by Congress.
Id. at 81 (emphasis added). Apparently, the Jackson view is
accepted in this circuit.
Thus “‘temporary’’ and ‘“‘perrmanent’’ do not have meanings
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 necessary for the
discharge of the responsibilities vested in 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).
[footnote continued]
l4a
interest in the area withdrawn by the Executive Order
of Jan. 8, 1900. The Act of March 3, 1927, 44 Stat.
1347 (codified at 25 U.S.C. § 398d), which froze the
boundaries of all executive order reservations, recognized
Navajo title in other executive order reservations within
the 1984 Act houndaries.
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 Legis-
lation 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 contradistinction to the word “permanent.” The
executive practice upheld in the Midwest Oil Co. case em-
braced two types of public land withdrawals—permanent
withdrawals intended to be effective immediately for the
purposes for which the lands were withdrawn, and tempo-
rary withdrawals such as those now under consideration, in
which public land was withdrawn for the purpose of main-
taining 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 withdrawals 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 bound-
aries . . . 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, thereofre, a ‘‘perma-
nent”’ withdrawal.
The Court is not persuaded that the Jackson distinction is a
meaningful one to apply to the 1934 Act. After all, the distinction
arose from an Executive attempt to justify land withdrawals seem-
ingly at odds with legislative directives. The 1934 Act states that
[footnote continued]
l5a
The issue raised is whether Congress recognized rights
of permanent -cupancy before the 1934 Act?
An Indian Reservation created by Executive Order
of the President conveys no right of use or occu-
pancy 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 occu-
pants of the reservation depends upon the language
or purpose of 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 power to turn over lands to the Indians
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
“All .. . temporary withdrawals of public lands in Arizona hereto-
fore made for Indian purposes by Executive order . . . are hereby
permanently withdrawn ... .”’ Considering the juxtaposition of
“‘temporary’’ and “permanent”’ with the 1934 Act, it is reasonable
to assume Congress intended to change the Indian land status from
a tenancy at will to a permanent compensable interest. Although
the legislative 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 execu-
tive order withdrawals.
l6a
added). 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 variety
of ways but there must be the definite intention by con-
gressional action or authority to accord legal rights, not
merely permissive occupancy.” Tee-Hit-Ton Indians v.
United States, 348 U.S. 272, 278-79, 75S. Ct. 313, 317,
99 L. Ed. 314 (1955).
The Navajo tribe suggests that land withdrawn by the
Executive Order of January 8, 1900, was permanently
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 within the 1900
executive order reservation. In particular, the appropri-
ations 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 congressional action or
authority to accord legal rights.’ Moreover, 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 Meoncopi village completely 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 ....
17a
(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, except 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 the
argument that compensable interests were created by
the 1927 Act. The Healing Court held that equitable
interests in the 1882 executive order reservation were
not vested until congressional recognition in 1958. Jd.
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 clearly
defines congressional initiative. From the bulky legis-
lative history of the 1927 Act, the only direct evidence
as to congressional intent comes with the House Report
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 equitable
title to the lands described by its terms. The ques-
tion of what rights the Indians may have in and to
Executive order reservations will not be affected by
18a
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 speeches are hardly dispositive. C. Sands,
Statutes and Statutory Construction § 48.13. Therefore,
the Court concludes that the 1927 Act recognized no
compensable property interests in the Indian tribes on
executive order reservations.
D. Who Are the Holders of the Vested
Equitable Interests
The granting clause of the 1934 Act states:
... [description of lands], 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; 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). 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 within the
“such other Indians”’ clause and are holders of equitable
interests.
The issue arises whether any other Indian tribe may be
a grantee within the meaning of the 1934 Act? The Hopi
19a
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 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. Inasmuch as an Indian
tribe’s presence within the 1934 area does not vest a
proportionate undivided interest in the entire 1934
reservation, the Court need not decide whether the
Hopis are the sole “other Indians’’ under the 1934 Act.
E. 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 ‘tas 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, 1934.
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 extent
of the interest acquired by a conveyee are called
“‘words of limitation.”
20a
Restatement Property § 312 Intro. Note. The issue,
therefore, is whether ‘‘as may already be located thereon”
are words of limitation or words of purchase or both?
The Court must first look to the language of the statute
to resolve the question. Ernst & Ernst v. Hochfelder, 425
U.S. 185, 197, 96 S.Ct. 1375, 47 L. Ed. 2d 668 (1976).
The plain wording of the 1934 Act is ambiguous. For
example, the 1934 Act grants an equitable interest in
‘vacant, unreserved, and unappropriated”’ public lands.
Vacant lands are those lands which are absolutely 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 condition
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 Misstonary Society
v. Dalles, 107 U.S. 336, 339, 2S. Ct. 672, 27 L. Ed. 545
(1882) (1848 Act confirms and establishes 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. 1313
(Douglas, J., dissenting) (1884 Organic Act for Alaska
states Indians shall not be disturbed in possession of
lands actually in their use and occupancy). The Hopi
interpretation is also troublesome. The title of the 1934
Act states “Exterior Boundaries 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 Act is sparse.
The Senate and House reports, which largely incorporate
an explanatory letter from the Secretary of the Interior,
are of little guidance. The Secretary addresses Hopi land
rights in one terse sentence.
2la
It is of importance to observe that section 1 (p. 4,
lines 12 to 14, inclusive) contains a provision safe-
guarding 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); H.R.
Rep. No. 1602, 73d Cong., 2d Sess. 2 (1934). However,
page 4, lines 12 to 14, merely preserves the existing
status of the 1882 Hopi Reservation. See H.R. 8927,
73d Cong., 2d Sess. (April 3, 1934). The Congress 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 Reservation 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.® Jd.
at 3. The bill not only contained the ‘‘such other Indians
as may already be located thereon” clause, but 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. Jd. at 4. The
proposed bill made no mention of the 1882 Hopi Reser-
vation. No senator expressed his views on the meaning
8Senators Hayden and Bratton originally introduced a bill to
eliminate ‘‘checkerboard’’ control of the lands in northeastern
Arizona and New Mexico between Indian and private landowners.
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 Reservation, 8. Doc. No. 64,
72d Cong., Ist Sess. (1932). The proposed bill of the Bureau of
Indian Affairs not only eliminated checkerboard ownership of the
land, but also provided a comprehensive solution to the persistent
problems between the Navajos and the Hopis.
22a
of the ‘‘such other Indians as may already be located
thereon”’ language; however, the Assistant Commis-
sioner 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.’ Jd. 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 section 1
of the bill, especially that part reading that the
lands in those lines are to be permanently for the
benefit of the Navajos and such other Indians as
may already be located thereon. Now I want you
to especially 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.
Now we are going on to that part reading: ‘‘Pro-
vided further, That the Secretary of the Interior 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
time in the future if the Hopi Indians want a sepa-
rate boundary line for themselves the Secretary of
the Interior can set that aside. I want to assure
you that it only contemplates a separate Hopi
boundary line if the Hopi Indians themselves want
it. As Mr. Radcliffe explained a little while ago,
suggestions have been made to us by our own field
men and white persons outside the Indian Service
23a
who are apparently friendly to the Hopis that
certain lines 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 zd. at 39 (Minutes of meeting
at Second Mesa, villages of Mishongovi and Shipaulovi)
(‘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’’); td. at 54 (Minutes of meeting
at Third Mesa, Oraibi village) (“We put that phrase ‘and
such other Indians as may already be located thereon’
in the bill so as to protect especially the rights of the
Hopi Indians to what is called their reservation’); td.
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
24a
that fact, that the bill as now drawn does not in any
way affect or change the present so-called Hopi Reser-
vation’). This administrative interpretation of the
boundary bill was presented to the Senate, and pre-
sumably, 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:
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 themselves 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
9The letter is reproduced at Navajo Ex. 94.
25a
and interests of Hopi Indians within the area),!9 The
new clause did not quiet the controversy, however. After
the 1932 congressional hearing, the Bureau eliminated 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 benefit of the
Navajo and such other Indians as may already be located
thereon.’’ The only meaning this clause could 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
10 The letter is reproduced at Navajo Ex. 95.
11 These letters are reproduced at Navajo Ex. 101 and 102.
26a
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 prop-
erty 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 judgment
is granted insofar as it is consistent with this memo-
randum 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.
27a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Nos. 78-3504, 78-3505
(Consolidated)
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 behalf of the Navajo Indian Tribe and all
villages, clans, and individual members of the
Navajo Tribe,
Appellee-Cross-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
OPINION
Before: Anderson and Skopil, Circuit Judges, and
Bonsal,* District Judge
*The Honorable Dudley B. Bonsal, Senior United States Dis-
trict Judge for the Southern District of New York, sitting by
designation.
28a
SKOPIL, 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 interests of
the Navajo and Hopi tribes in the reservation 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 activities 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 “‘[a]s
far back as the Middle Ages.’ Healing v. Jones, 210
F.Supp. 125, 134 (D. Ariz. 1962), aff’d, 373 U.S. 758
(1963). The Navajos probably entered the area in the last
half of the eighteenth century. Jd. By treaty in 1868
the United States granted the Navajos an extensive reser-
vation in the northeast corner of Arizona. 15 Stat. 667.
The reservation was gradually expanded by a series of
executive orders beginning in 1880 and continuing to
1918. An 1882 executive order withdrew a reservation
(hereafter “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 Navajos and Hopis are intermingled, has been
extensively 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
1See 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 (1972);
Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir. 1974); Seka-
quaptewa v. MacDonald, 544 F.2d 396 (9th Cir. 1976); Sekaquap-
tewa v. MacDonald, 575 F.2d 239 (9th Cir. 1978).
29a
withdrawn by other executive orders from 1880 to 1918.
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 public
lands, including all temporary withdrawals of public
lands in Arizona heretofore made for Indian pur-
poses by Executive order or otherwise, within the
boundaries defined by this Act, are hereby per-
manently withdrawn from all forms of entry of
disposal for 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 (Hopi) Indian Reserva-
tion 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 complaint
requests: (1) a declaration that the Hopies have an
undivided one-half interest in the lands at issue; (2)
that jointly held lands be partitioned; and (3) that the
court order an accounting for all Navajo activities on all
land in which the Hopis have an interest.
2This land was involvec in Sekaquaptewa v. MacDonald, 591
F.2d 1289 (9th Cir. 1979).
30a
The district court limited the proceedings to a deter-
mination 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
declared 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 partition,
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 subordinate issues
must be settled to resolve the broader question:
(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’’?
(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’’?
Next, we must determine whether the 1974 jurisdic-
tional act confers jurisdiction of the Hopi Tribe’s claim
for accounting.
3la
A. What Rights Are Conferred by the 1934 Act?
1. What lands are included in the phrase, “‘all vacant
unreserved, and unappropriated ... lands . . . including
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 example) of
‘vacant, unreserved, and unappropriated”’ lands. The
district court held that ‘“‘including’’ meant ‘‘and’’. In
the district court’s view the 1934 Act withdrew: (1)
vacant ... lands, and (b) temporary withdrawals.
We agree with the district court. The primary purpose
of the 1934 Act was to consolidate land ownership with-
in the boundaries of the Reservation. Prior to 1934
neither tribe had recognized (compensable) title to areas
withdrawn by executive order. To effectuate consolidated
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.
The Navajos’ suggestion that title was conferred only
to “vacant” lands would have anomalous results. The dis-
trict 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 there-
fore reject this suggestion.
The Hopis contended that ‘temporary withdrawals”
include all executive order withdrawals except the 1882
reservation exempted by the 1934 Act. The district court
agreed, equating “temporary withdrawals’’ with executive
order withdrawals. Its conclusion was based on the 1934
Act’s purpose to consolidate reservation land ownership.
32a
It was necessary to confirm titleinall executive order with-
drawals since such withdrawals in themselves confer no
recognized or compensable title. See United States 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 cases, United States v. Midwest Oil,
236 U.S. 459 (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 legis-
lative action is contemplated are ‘‘permanent”’.3
The district court rejected this suggestion firmly. Its
reasoning is persuasive. The overriding purpose of the
1934 Act repudiates the Navajos’ interpretation. To con-
solidate reservation ownership it was necessary to change
the status of reservation land title from a “‘tenancy at will
to a permanent compensable interest’’. The proposed dis-
tinctions were developed by agency officials to justify
executive withdrawals that would otherwise have _ con-
flicted 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 re-
served for Indians, any subsequent grant purporting to
3This distinction was approved by this court in United States v.
Consolidated Mines & Smelting 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 attributed
to Congress, which is the question here.
33a
affect those lands must be strictly construed.
Leavenworth, etc., R.R. Co. v. United States, 92 U.S. 733,
746 (1876); Mattz v. Arnett, 412 U.S. 481 (1973);
Seymour v. Superintendent, 368 U.S. 35 (1962). The
cited cases all involved assertions that Congress had with-
drawn land from Indian reservation status, hence its status
as “Indian country”. See 18 U.S.C.§ 1151. Among other
things such a result would have terminated federal and
tribal jurisdiction, both civil and criminal. 18 U.S.C.§
1151; DeCoteau v. District County Court, 420 U.S. 425,
427 n.2 (1975). In view of these drastic results, a congres-
sional intention to terminate is not to be inferred unless
it is ‘expressed on the face of the Act or... clear from
the surrounding circumstances and legislative history.”
Matiz v. Arnett, supra, 412 U.S. at 505.
No intent to terminate need be shown here because
there has been no termination. No one contends that the
1934 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 seg. Far from
terminating prior executive order reservations, the 1934
Act reinforces them by recognizing and confirming Indian
title.
Assuming an executive order could create an exclusive
right of occupancy in one tribe versus another, it is impor-
tant “to have in mind the circumstances in which the
reservation was created”. Alaska Pacific Fisheries v.
United States, 248 U.S. 78, 87 (1918). See also United
States v. Walker River Irr. Dist., 104 F.2d 334, 336 (9th
Cir. 1939). Where two tribes have intermingled in the
pattern shown here, we cannot blandly assume the execu-
tive has divested the indigenous tribe. The Navajos do
not convincingly show that such was the executive’s intent.
34a
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-Ton Indians v.
United States, 348 U.S. 272, 278-79 (1955) (‘‘[T]here
must be the definite intention by congressional action or
authority to accord legal rights, not merely permissive
occupation”); Hynes v. Grines Packing Co., 337 U.S. 86,
105 (1949) (“It would take speciiic and unambiguous
legislation to cause us to rule that Congress intended to
authorize the Secretary of the Interior to alienate .. .
fisheries permanently”).
The 1902 appropriations act makes no direct or indirect
mention of title. The Navajos do not point to convincing
legislative history to support their position.* We reject
the Navajo argument. See Northern Cheyenne Tribe v.
Hollowbreast, 425 U.S. 649, 655-56 (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 undivided,
one-half interests in both tribes. In their view, ‘‘as may
already be located thereon” is merely a way of identify-
ing the Hopis. It does not limit Hopi rights to land
occupied. In real estate conveyancing parlance, they are
“words of purchase”’.
4The Navajo position is based on evidence that President
McKinley 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.
35a
The district court held that this language limits Hopi
rights to lands ‘“‘possessed, occupied or used” in 1934.
The words ‘‘ as may already be located thereon’’ are
words of limitation. Under the district court’s holding,
the Navajos have: (1) an undivided one-half interest 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 purchase
of additional Navajo lands with Navajo funds. Navajos
are precluded from receiving royalties from water devel-
opments on lands added to the Navajo reservation.
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 located
thereon’’. However, one must resort to extrinsic sources
even to conclude that “‘such other Indians’’ includes 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 makes it plain that
“located thereon” cannot be read to convey to the Hopis
36a
a one-half interest in the Reservation. The district
court’s holding was based on a fair reading of the 1934
Act’s legislative history. See 448 F. Supp. 1193-1196.
The Hopis suggest that real property conveyancing pre-
sumptions require that this language be construed to
create a tenancy in common. Policies underlying
conveyancing presumptions have no necessary application
to federal-Indian relations.© The intent of Congress,
which we read to conflict with the conveyancing
presumptions, governs. We 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 the 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 Secretary 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 1882 order
created a Hopi right of occupancy to the entire area,
5In United States v. Washington, 520 F.2d 676, 685 (9th
Cir.), cert. denied, 423 U.S. 1086 (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-Indian 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 partition, after title was
determined.
If we were to apply real property principles to this case, the
more accurate analogy might be to a class gift. See Restatement
of Property, § 300 (and see Comment f), and § 367, Comment e
(1940 ed.).
37a
regardless of where they settled. The Navajos subse-
quently acquired an equal right to occupy lands on which
they were administratively settled. In areas where there
was no Navajo 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 occupied. 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 immedi-
ately 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 inconsistent
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 different
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 reservations 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 district
court reached. Congressional power over Indian land is
broad. Warren Trading Post v. State Tax Commission,
380 U.S. 685 (1965); United States v. Sandoval, 231 US.
28 (1913). We cannot restrict Congress in the way the
Hopis suggest. Congressional intent is inconsistent with
the Hopis’ claim to entitlement to a one-half interest in
the reservation. We must respect that intent.
38a
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 lob-
bied 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’’ language.
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 politi-
cal judgment) for the court to impose limitations 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 judically discoverable and
manageable standards for resolving it’; or whether the
question is impossible to decide ‘“‘without an initial policy
determination of a kind clearly for non judicial
discretion”. Baker v. Carr, 369 U.S. 186, 217 (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 maintain,
that we must declare the tribes cotenants. It would be
more logical for us to dismiss the case for lack of juris-
diction of the political question.
39a
We do not agree, however, that there are no judicially
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 1934 Act show an intent
_to withdraw all reservation land for the Navajos except
for pockets occupied by Hopis. We agree with the
district 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 allow
the tribes to work out whatever cooperative arrangement
they could. But when negotiations failed, the 1974 juris-
dictional act authorized the courts to declare 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
Indians” provision was explained to the Hopis as pro-
tecting their rights to areas occupied outside the 1882
40a
reservation. There is no indication that anyone con-
templated 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 boundaries 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 determining title.
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 dis-
turbed.” 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 consistent 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. Judgment should
be entered declaring Hopi interests in those lands to be
exclusive.
4la
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 other
tribe as may be necessary or desirable to insure the
quiet and peaceful enjoyment of the reservation
lands . . ., 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 F.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 coextensive
sovereign immunity. Tribes may be sued only with the
consent of Congress. Hamilton v. Nakat, 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. United States, 352
U.S. 270, 276 (1957). Therefore the Hopis have a heavy
burden to establish jurisdiction.®
©The Hopis’ characterization of the 1974 jurisdictional act as
“remedial legislation” is unconvincing. The 1974 Act was intended
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 (1967) (private
remedy under securities acts).
42a
Section 17(c) does not mention claims for accounting.
There is therefore no express grant of jurisdiction of
accounting claims in section 17(c).
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 executive
order reservation and for the surrounding reservation con-
firmed by the 1934 Act. The 1974 Act specifically
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 omisssion. Without a prior adjudication of title,
Congress could not know what kind of financial 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
7The Hopis offer an obscure explanation fo, 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 therefore
possible for Congress to spell out the details of the final settlement
of the 1882 title claims. In contrast, title to the 1934 Act reser-
vation 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.
43a
a desire for a final settlement of all title claims. This his-
tory might support an inference that an accounting was
intended. But any inference is weak at best 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 parti-
tion. The authorities they cite support such a position,
but only with respect to private adjudications. None
involve Indian tribes possessing attributes of sovereignty.
None involve a federal statute establishing detailed pro-
cesses and standards for quieting title, partition, 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 account-
ing 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 1934 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.
Ill. 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 may not
44a
be possible for the court to conclude that the Hopis
“possessed, occupied, or used” such land exclusively. In
that event it may be proper on remand for the district
court to deciare 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 actually and
exclusively “‘possessed, occupied, or used”’ in 1934.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED.
45a
APPENDIX C
ACT OF JUNE 14, 1934, 48 STAT. 960
1934. Exterior boundaries of Navajo Reservation in
Arizona
ch. 521, 48 Stat. 960-962
AN ACT
To define the exterior boundaries of the Navajo Indian
Reservaticn in Arizona, and for other purposes.
Be it enacted by the Senate and House of Represen-
tatives of the United States of America in Congress
assembled, That the exterior boundaries of the Navajo
Indian Reservation, in Arizona, be, and they are hereby,
defined as follows: [land description] .... All vacant,
unreserved, and unappropriated public lands, including
all temporary withdrawals of public lands in Arizona
heretofore 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. L. 575), as being valuable
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 required
46a
for power purposes or other uses under the authority 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 [16 U.S.C. § 79la et seq.]), and amendments
thereto, shall operate for the benefit of the state of
Arizona as if such lands were vacant, unreserved, and
unappropriated public 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.
* * *
47a
APPENDIX D
ACT OF DECEMBER 22, 1974, 88 STAT. 1712,
AS CODIFIED IN 25 U.S.C. § 640d-7
§ 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 District
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 Decem-
ber 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 so partitioned shall be retained in the
48a
Navajo Reservation or added to the Hopi Reservation,
respectively.
Authorization for exchange of reservation lands
(c) The Navajo and Hopi Tribes are hereby authorized
to exchange lands which are part of their respective
reservations.
Denial of Congressional interest 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
conflicting claims to the lands that are subject to adjudi-
cation 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.
49a
APPENDIX E
Executive Order of January 8, 1900
It is hereby ordered that the tract of country lying
west of the Navajo and Moqui reservations in the Terri-
tory of Arizona, embraced within the following-described
boundaries, viz: beginning at the southeast corner of the
Moqui reservation and running due west to the Little
Colorado River; thence down that stream to the Grand
Canyon Forest Reserve; thence north on the line of that
reserve to the northeast corner thereof; thence west to
the Colorado River; thence up that stream to the Navajo
Indian reservation, be, and the same is hereby, withdrawn
from sale and settlement until further ordered.
WILLIAM MCKINLEY
Executive Mansion
January 8, 1900
50a
APPENDIX F
56TH CONGRESS, DOCUMENT
Ist Session. SENATE. No. 68.
ENLARGEMENT OF NAVAJO INDIAN
RESERVATION, IN ARIZONA.
MESSAGE
FROM THE
PRESIDENT OF THE UNITED STATES,
TRANSMITTING
A COMMUNICATION FROM THE SECRETARY OF
THE INTERIOR, WITH ACCOMPANYING PAPERS,
EXPRESSING AN URGENT NECESSITY FOR THE
ENLARGEMENT OF THE NAVAJO INDIAN RESER-
VATION, IN ARIZONA.
January 10, 1900.—Read, referred to the Committee
on Indian Affairs, and ordered to be printed.
To the Senate and House of Representatives:
I transmit herewith a communication from the Secre-
tary of the Interior, dated the 5th instant, with accom-
panying papers, expressing an urgent necessity for
the enlargement of the Navajo Indian Reservation, in
Arizona, to enable these Indians to support themselves
by stock raising within the limits of their reservation."
WILLIAM MCKINLEY.
EXECUTIVE MANSION,
Washington, January 10, 1900.
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DEPARTMENT OF THE INTERIOR,
Washington, January 5, 1900.
The PRESIDENT:
For several years past it has been manifest to the
Department that the Navajo Reservation is inadequate to
supply water and grass for the herds of the Indians, and
many of them, perhaps one-third of the tribe, for that
reason have been habitually off the reservation on the
public domain, where they are in frequent conflict with
whites over the grazing of their herds.
Various officials of the Department, within the past
year or two, have recommended an enlargement of the
reservation by extending it westerly within certain de-
fined boundaries. But the physical characteristics of the
proposed extended area were, until recently, unknown
to the Department, and no action looking to an addition
to the reservation was taken until March 14, 1899, when
Indian Inspector James McLaughlin was directed to
proceed to the reservation and go carefully over the
ground and report all information necessary to enable
the Department to act intelligently upon the question
of enlargement, with such recommendations as in his
judgment might best promote the welfare of the Indians,
with due regard to the rights and interests of the white
settlers of that section.
In his report, dated June 13, 1899, the inspector
recommends an extension of the reservation by metes
and bounds which he deems essential for the grazing of
the Indians’ herds without encroaching upon the territory
of and coming in contact with the whites, and states that
there is no question in his mind that the present reserva-
tions of the Navajo and Moqui Indians (the latter being
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a small reservation adjoining that of the Navajos on the
south and west, a part of which it seems is also used by
the Navajos), is insufficient for their herds, and conse-
quently a large number of them are frequently off the
reservation, ranging their herds as far south as the Santa
Fe Railroad, in Coconino and Navajo counties, which is
the cause of contention with the whites, whose herds
are taxed by the respective counties in which they are
ranged and their owners reside, while those of the
Indians eat off the grass and exhaust the water supply
and go untaxed.
The citizens of Coconino County, as evidenced by a
petition presented to Inspector McLaughlin, ‘‘are a unit
as to the advisability and necessity of making the Little
Colorado the western boundary (the boundary of the
proposed extension) of the Indian reservation and
keeping the Indians on their reservation,” and Governor
Murphy, of Arizona, commends the extension to the
limits above described, ‘‘as being better for all concerned
and less liable to cause friction between the Indians and
the whites.”
From the best information obtainable the inspector
reports that there are usually from 750 to 800 Indians
ranging herds west (off) of the reservation, but that
sometimes there are from 1,000 to 1,200, and that it
is probable that the actual number will approximate
1,000.
A list or schedule of white settlers on the proposed
addition to the reservation, and of their improvements,
is submitted by Inspector McLaughlin, from which it
appears that there are twenty families whose claims
and improvements, at a reasonable estimate, he con-
siders to be worth $45,000. Two other claims are also
reported, at a valuation of $1,500 each, making an
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aggregate of $48,000 as probably necessary to purchase
the improvements and rights of the parties in question.
An agreement in writing was made with the settlers
whereby they agree to accept the sums stipulated for
their respective improvements and to vacate their loca-
tions upon payment by the Government. This agreement
expires on July 1, 1900, if the property be not pur-
chased by the Government before that date.
Considering the importance to the whites of that
locality and to the Indians, for whose herds there seems
clearly to be insufficient grazing on the present reser-
vation, together with portions of that set apart for the
Moquis, which they also use for the purpose, I have the
honor to recommend that the matter be brought to the
attention of Congress, with your favorable recommen-
dation for the enlargement of the reservation as stated,
and for an appropriation of $48,000 to pay the claims
of the settlers referred to.
I also recommend that the inclosed Executive order be
made and returned to the Department, reserving from
entry and settlement the lands described in the inspec-
tor’s report, so that further possible locations thereon
may be prevented and consequent complications with
other settlers avoided pending Congressional action.
Duplicate copies of the correspondence in the case and
duplicate drafts of the proposed legislation, which meets
with my approval, and of maps showing the present
reservation and the proposed addition thereto, are
inclosed for submission to the two Houses of Congress.
Very respectfully,
KE. A. Hircucock, Secretary.
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DEPARTMENT OF THE INTERIOR,
Washington, March 14, 1899.
Sir: For several years it has been represented to the
Department that the water and grass on the Navajo Reser-
vation are insufficient to supply the herds of the Indians,
and that for that reason perhaps one-third of the tribe
are habitually off the reservation on the public domain,
where they are in frequent contentions with the whites
over water and grass.
Within the past year or two it has been recommended
by yourself and other officials of the Department that
the reservation be enlarged by extending the line due
west from the west boundary line of the Moqui Reserva-
tion to the southeast corner of the Grand Canyon Forest
Reserve to the Colorado River; thence up that stream to
the Indian Reservation. But the Department has had no
detailed report as to the number of white settlers or the
number of Indians in this territory, nor as to the amount
of water and grass, nor as to its desirability as an Indian
reservation, nor as to what difficulties might be encoun-
tered by the Department if it proposed to add this
territory to the reservation.
When you reach that reservation under your orders of
January 27, 1899, in reference to the Moen Copie Wash
allotments, I desire you to go over the ground carefully
and report to the Department all necessary information
to enable it to act intelligently in the matter, with
such recommendations as in your judgment might best
promote the welfare of the Indians, with due regard
to the rights and interests of the white settlers of that
section.
If upon a more careful examination of the country
you should find that the addition of any other section
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would be more desirable than this, or that the lines
should be different from those heretofore recommended,
you will report that fact, together with your reasons
therefor.
Very respectfully,
THOS. RYAN,
Acting Secretary.
JAMES MCLAUGHLIN,
United States Indian Inspector, St. Paul, Minn.
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FLAGSTAFF, ARIz., June 13, 1899.
Sir: As directed by Department letter of March 14,
1899, I have the honor to submit the following report
with reference to increasing the Navajo Indian Reser-
vation:
I arrived at Flagstaff on the 8th ultimo, en route to
Tuba City to carry out Indian Office instructions of
January 25 last, relative to certain land matters and
water privileges at Moencopie, and having in view the
report called for regarding extension of Navajo Reserva-
tion, and having from my visit to this section last summer
learned something of the opposition of the settlers of
Coconino County to a southern extension of the reser-
vation, as set forth in a report that I had the honor to
submit under date of August 15 last, I concluded to
remain over in Flagstaff one day, that I might ascertain
the sentiment now prevailing as to the extension of the
Navajo Reservation by extending a line due west from
the west boundary line of the Moqui Reservation to the
southeast corner of the Grand Canyon Reserve, thence
north on the eastern boundary of the said forest reserve
to its northeast corner, thence west along said boundary
to the Colorado River, thence up that stream to the
Indian reservation.
* * *
There is no question but that the present reservation
of the Navajo and Mogqui Indians is insufficient for the
Navajo herds (the Moqui Reservation, all except what
is cultivated by the Moquis, being appropriated by the
Navajoes for grazing their flocks), in consequence of
which a large number of the Navajoes are frequently off
their reservation on the public domain, ranging their
herds as far south as the Sante Fe Railroad, in portions
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of Coconino and Navajo counties, which occasion con-
tentions over ranges, as the untaxed herds of the Indians
eat off the grass and exhaust the water supply, to the
detriment of the white stockmen, whose herds are taxed
by the respective counties in which they reside.
The Navajo Indians are entitled to commendation for
their progressiveness in the sheep industry, and as they
can not maintain sufficient herds upon the sandy and
impoverished ranges within their present boundaries
to support themselves, I would strongly recommend
enlarging their reservation, so that they would not
be obliged to range their untaxed herds in organized
counties on the public domain, and by which they could
be more reasonably required to remain within their
reservation boundaries, which would be much better for
the Indians and assure more friendly relations between
them and the neighboring whites than is possible under
present conditions.
* * *
I visited all of said settlers and traders, who are all
squatters upon unsurveyed Government lands, but
surveys were being made embracing their claims while
I was in the neighborhood. I examined their improve-
ments very carefully, anticipating an extension of the
lines of Navajo Reservation, and in order that the same
might be facilitated I obtained from the said 20 Mormons
a written agreement, wherein they each agree to accept
a certain sum for their respective improvements and to
vacate their locations upon payment to them by the
Government of the stipulated amounts, aggregating
$45,000.
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Referring to the country west of the reservation, I
desire to state that I made particular inquiry of all
persons whom I met who were familiar with the territory
embraced in the contemplated extension of reservation
as to the amount of water and grass it contained and its
desirability as a range for the Indian herds, and I was
informed by S.S. Preston, Indian trader at Willowsprings;
James Black and E. M. Tackett, prospectors; Ashton
Nebeker and Joseph Tanner, of Tuba City, and others, all
of whom are familiar with the character of the country
and its resources, that grass is very scarce throughout
the territory referred to, except in the western portion,
where water is scarce, in consequence of which a large
tract of good grass land can not be utilized for summer
grazing, but affords good winter range when snow is
on the ground, and all of them believed that from the
nature of the soil water could be secured for use of stock
by a system of storage reservoirs at comparatively small
expense.
* * *
Regarding the lines upon which the Navajo Indian
Reservation should be extended, I have the honor to
state that while the line recommended by Acting Agent
Constant Williams, under date of May 7, 1898, would
be desirable and in the interests of the Indians, I at the
same time know that it would be very objectionable to
the citizens of Coconino County, and having discussed
the matter with the leading citizens of said county and
obtained their consent to accept the Little Colorado
River as the southern boundary line of the proposed
extension (see Exhibit No. 22, transmitted herewith),
I would respectfully recommend an extension of the
reservation on a line due west from the southwest corner
of the Moqui Reservation to the Little Colorado River,
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thence down the Little Colorado to the eastern boundary
line of the Grand Canyon Forest Reserve, thence north
on the boundary of the said forest reserve to its northeast
corner, then west along the north boundary of said forest
reserve to the Colorado River, thence up the Colorado
River to the Navajo Indian Reservation.
This would add to the Navajo Reservation a tract of
country of about 40 by 50 miles, 1,280,000 acres,
making the Little Colorado River the southern boundary,
which river is considerable of a stream and would give a
natural and well-defined boundary, which could be easily
recognized by the whites; and, as I am informed, the
Little Colorado River was formerly the dividing line
between the Navajoes and Apaches, and which was thus
strictly adhered to ard respected by both tribes, the
Navajos could therefore be brought to recognize and
accept said stream along the extended portion of the
reservation as their boundary line, over which they
should not graze their herds.
In conclusion I desire to add that I have taken great
pains to inform myself regarding the proposed extension
of the Navajo Reservation, as herein set forth, which |
trust will enable the Department to act understandingly
in the premises.
I am, sir, very respectfully, your obedient servant,
JAMES MCLAUGHLIN,
United States Indian Inspector.
THE SECRETARY OF THE INTERIOR,
Washington, D.C.
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DEPARTMENT OF THE INTERIOR,
Washington, June 24, 1899.
Sik: On the 14th of March last Inspector James
McLaughlin was instructed by the Department to pro-
ceed to the Navajo Agency and make an examination
of the country lying west of the Moqui Reservation, and
report to the Department all necessary information to
consider the recommendations which had previously
been made by himself and Maj. Constant Williams, the
then acting Indian agent of the Navajo Agency, to enlarge
the Navajo Reservation by extending the lines from a
point on the west line of the Moqui Reservation to the
southeast corner of the Grand Canyon Forest Reserve;
thence north to the northeast corner of said reserve;
thence west to the Colorado River; thence up that stream
to the Navajo Reservation.
Inspector McLaughlin has lately performed this service,
and herewith I hand you his report, dated the 13th
instant, and all accompanying papers. After a careful
examination of the country, and considering the interests
of both the Indian and the white inhabitants thereof, he
recommends that the reservation be enlarged by extend-
ing the line from the southwest corner of the Moqui
Reservation due west to the Little Colorado River;
thence down that stream to the Grand Canyon Forest
Reserve; thence north on the line of that reserve to the
northeast corner thereof; thence west to the Colorado
River; thence up that stream to the Navajo Reservation.
The report is respectfully transmitted to you for your
consideration. If the recommendations of the inspector
meet with your approval you will prepare and submit to
the Department, at your earliest convenience, a draft of
the proper Executive order to carry the same into effect
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as to the enlargement of the reservation, and at the
proper time submit a draft of the necessary legislation
to authorize and enable the Department to purchase the
improvements and claims of the settlers to be included
in the reservation.
For your information and consideration in connection
with the inspector’s report, I inclose a copy of the
instructions which were given him for the work, and also
a letter from Governor Murphy, of Arizona, dated the
17th instant, in reference to the matter.
Very respectfully,
E. A. HITCHCOCK, Secretary.
THE COMMISSIONER OF INDIAN AFFAIRS.
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APPENDIX G
ACT OF MAY 27, 1902, 32 STAT. 245,
264-65
* * *
For the purchase of the right, title, and improvements
of certain settlers within the external boundries [sic] of
the Navajo Indian Reservation in Arizona, as set out in
the communication of the Secretary of the Interior to
the President, dated January fifth, nineteen hundred,
and printed in Senate Document Numbered Sixty-eight,
of date of January tenth, nineteen hundred, forty-eight
thousand dollars, to be used and expended under the
direction and within the discretion of the Secretary of
the Interior. And the Secretary of the Interior is author-
ized and empowered to purchase the right, title, and
improvements separately of each and every one of the
said persons named in the said communication of the
Secretary of the Interior, at the price separately agreed
upon with the settlers therein named. And when so
purchased the improvements and the lands upon which
they are situated, in and near Tuba City, are hereby set
apart for school or public purposes, as may be hereafter
decided upon by the Secretary of the Interior, and until
required to be used for such public or school purposes
shall be used by the Indians under rules and regulations
to be prescribed by the Secretary of the Interior: Pro-
vided, that the appraisement of Earnest A. Lee’s property
shall be three thousand seven hundred dollars: Provided
further, that the Secretary of the Interior shall make no
payment for any of said right, title, and improvements
unless in his judgment the valuation thereof is fair and
just.
* * *
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