Question 1. Is the Department of Justice confident that the $50 million in monetary compensation to be awarded to the Hopi is in line with the government's exposure in those civil actions?

Response:

Yes, we are confident that the $50 million in monetary
compensation to be awarded to the Hopi Tribe is a reasonable
settlement of our exposure in the pending and threatened
litigation which the settlement resolves. A detailed
description is provided in response to Senator McCain's
first question above.

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Question 2. Does the Federal Government have sufficient existing authority to acquire State lands pursuant to the Agreement through condemnation or other means? Would the Department of Justice or the Department of the Interior object to writing stipulations into any implementing legislation to protect the State of Arizona's right to receive fair market value for, and to concur in the selection of, any State lands chosen by the Hopi and acquired by the Federal Government through condemnation?

Response:

The Department of the Interior has authority to acquire
State lands through condemnation under existing law. The
relevant statutory provisions are: 40 U.S.C. 257, which
generally authorizes officials of the Federal Government who
have been authorized to procure real estate for public uses
to make such acquisitions for the United States by
condemnation; 25 U.S.C. 465, which authorizes the Secretary
of the Interior to acquire land for Indians; and 25 U.S.C.
451, which authorizes the Secretary of the Interior to use
donated property in furtherance of any program authorized by
other provision of law for the benefit of Indians (in this
instance the funds would be donated by the Hopi Tribe for
acquisition of the State lands). Read together, these
statutes provide the Department of the Interior sufficient
authority to acquire State lands pursuant to the Settlement
Agreement.

The Takings Clause of the Fifth Amendment of the United States Constitution assures the State of Arizona fair market value for any State lands the Federal Government might condemn. Accordingly, no implementing legislation is necessary regarding that aspect of the settlement. The Justice and Interior Departments do not support inclusion of a provision assuring the State's concurrence because that restriction is already present in our binding agreement with the Hopi Tribe.

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Question 3. Does the Administration have any objection to writing into implementing legislation other stipulations made in the settlement agreement among them, the dismissal of

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lawsuits, the monetary compensation to be paid to the Hopi Tribe, the lease arrangement to be offered to the Navajo families, the character of lands that may be acquired by, and taken into trust for, the Hopi Tribe?

Response:

The disadvantages of writing the terms of the settlement agreements into implementing legislation outweigh any advantages. Legislation is not required to give effect to the binding agreements concerning dismissal of the lawsuits, monetary compensation and other terms. The only facet of the agreements that requires legislative action concerns the 75-year lease term, for which the Hopi Tribe seeks a minor amendment, similar to amendments received by many other Tribes. Legislation with these additional, unnecessary provisions might entail delay, which may threaten the momentum vital to the success of these historic settlements.

Question 4. During the term of the 75-year lease, the population of Navajo families in the area may grow substantially. Is the Federal Government obligating itself to provide a sufficient water supply to meet future needs is it, in effect, creating a

new water right?

Response:

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We do not expect that the Accommodation Agreement allowing Navajo families to remain on the Hopi Partitioned Lands will create a new water right. Federal reserved rights for Indian reservations are measured by the amount of water necessary to fulfill the purposes for which the land was made a reservation. Nothing in the settlement changes the purposes for which the Hopi Reservation was established, which would include general domestic and agricultural uses. Moreover, domestic uses generally comprise a minor percentage of the reserved water.

Question 5.

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(a) How does the 500,000 acres to be taken into trust for the Hopi Tribe compare to the amount of land occupied and/or used by the Navajo families who are still residing on the Hopi Partitioned Lands? (b) Could the Justice Department comment on the case out of the Eighth Circuit Court of Appeals, South Dakota v. Interior, that held that the section of the Indian Reorganization Act authorizing the Secretary to acquire lands in trust was unconstitutional? (c) Is the Indian Reorganization Act the statutory authority that the Secretary would cite to take land into trust pursuant to the Agreement with the Hopi?

Responses:

a.

b.

See response to question 2a posed by Senator McCain.

The Justice Department believes South Dakota v. Interior, 69 F.3d 878 (8th Cir. 1995), was wrongly decided by the panel in the Eighth Circuit Court of Appeals, as we explained in our petition for rehearing en banc. The Justice Department is now considering whether to seek certiorari in the United States Supreme Court. In any event, any challenge to the settlement in this case is likely to arise in the Ninth Circuit, where the statutory provision remains valid.

In addition, the Secretary of the Interior has recently
promulgated new regulations that provide for judicial review
of agency decisions to take land into trust. See 61 Fed.
Reg. 18082-83 (April 24, 1996) (revising 25 C.F.R. 151.12).
This new regulation vitiates a fundamental assumption
underlying the Eighth Circuit's determination that the
statute is unconstitutional.

c. The Indian Reorganization Act is the statutory authority
the Secretary would cite to take land into trust for the
Hopi Tribe, pursuant to the Settlement Agreement.

Question 6. In the event that some Navajo families choose not to sign an Accommodation Agreement, we will be no closer to a final resolution of the dispute than we are today. What is the remedy if some families choose not to sign Accommodation Agreements yet refuse to leave the Hopi Partitioned Lands?

Response:

Any families who choose not to sign the Accommodation Agreement and who remain on the Hopi Partitioned Lands without authorization will be in trespass and, as mentioned above, an action in trespass may be brought against them by the United States or the Hopi Tribe. We are hopeful that a super-majority of Navajo families now residing on the Hopi

Partitioned Lands will sign the Accommodation Agreement or choose, instead, to accept their relocation benefits and move away from the Hopi Partitioned Lands. For those families that wish to sign an Accommodation Agreement, the creation of this alternative represents a vast change from the land dispute circumstances that face them today. In light of these agreements, if some Navajo families choose not to sign an Accommodation Agreement, it will be by their own election that they cannot remain at their homes on the Hopi Partitioned Lands and not because the circumstances provided no alternative.

In this respect, the Accommodation Agreement brings closure
to the situation the Navajo families have faced for the last
two decades, by presenting an option for people lawfully to
remain on the Hopi Partitioned Lands and to continue their
traditional way of life at homesites which, in many
instances, have been occupied by their families for many
generations. In addition, the agreements also bring closure
to the land dispute by providing an end date for provision
of relocation benefits to residents of the Hopi Partitioned
Lands who are eligible for such benefits. (See the response
to question 6 posed by Senator McCain).

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Question 7. In 1980, Congress approved legislation that allowed 400,000 acres of land to be taken into trust for the Navajo Tribe and used for the benefit of Navajo families residing on the Hopi Partitioned Lands. That measure was intended to resolve the dispute, yet many Navajo families still chose not to move. Congress is being asked to approve legislation that will facilitate 500,000 acres of land being taken into trust for the Hopi. Is the Administration confident that this represents final resolution? If so, would it recommend legislative language to relieve the Federal Government of any further obligations if this proposal ultimately fails?

Response:

The prior commitment of lands to the Navajo Nation was
intended to provide lands to which Navajos could be
relocated. Many families have relocated, some to those
lands. The current settlement compensates the Hopi Tribe
for its land losses. If some families decline to enter into
an Accommodation Agreement and do not move after receipt of
relocation benefits provided pursuant to the 1974 Settlement
Act, they are subject to an action for trespass. Such a
circumstance would not invite further land transfer to the
Navajo Nation. Nor would renewal of the Accommodation
Agreement at the end of 75 years invite further contribution
from the United States. Rent or other compensation
negotiated between the Tribes at that juncture would

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constitute the only compensation anticipated by the parties.

We recommend against inclusion at this time of legislative
language that relieves the Federal Government of any further
obligations. The Office of Navajo and Hopi Indian
Relocation continues to have obligations to Navajo families
that already have moved from the Hopi Partitioned Lands but
have not yet received their benefits. This settlement
addresses the land dispute problem. The Senate Committee on
Indian Affairs has indicated that a separate subsequent
hearing process will address issues relating to relocation
benefits for Navajo who have already moved from the Hopi
Partitioned Lands. We would not favor merging of that
separate and fact intensive issue with the land dispute
issues in these settlement agreements.

We very much appreciate your sustained support of efforts to reach a consensual resolution of this problem. This has been a long and difficult process and we have learned a great deal since our first effort at settlement in late 1992. That proposed settlement, which would have required broad Congressional legislation, has been revised in response to many objections that were voiced in 1992 and 1993. We look forward to working with you on this issue.

The Office of Management and Budget has advised this Department that it has no objection to the presentation of these responses from the standpoint of the Administration's program.

Please do not hesitate to contact us if we may be of additional assistance.

Sincerely,

Aan de Hiland

Andrew Fois AF
Assistant Attorney General

CC: The Honorable Daniel K. Inouye
Ranking Minority Member

The Honorable Jon L. Kyl