consumed and damages to property injured or destroyed. See, e.g., 25 C.F.R. 151.21 (1958) (now at 25 C.F.R. 166.24 (b)); 25 C.F.R. 153.17 (1976); 25 C.F.R. 153.17 (1978); 25 C.F.R. 168.14 (1983). The general grazing regulations promulgated after 1957 contained language providing that the owner of any livestock grazing in trespass on restricted Indian lands is liable to a penalty of $1 per head per day for each animal, together with the reasonable value of the forage consumed and damages to property injured or destroyed. 25 C.F.R. 151.21 (1958). The Claims Court, in its April 21, 1989 Order, stated that the intent of the provision "was clearly to compensate the Hopi Indians financially for damages to its land from overgrazing. The Hopi Tribe asserts that, using Bureau of Indian Affairs numbers for trespassing livestock, the United States owes the Hopi Tribe trespass penalties totalling at least $190 million for the years 1958 through 1985. The Hopi Tribe presented the Justice Department its calculations of the trespass penalty fines for each year.

The second lawsuit, Secakuku v. Hale, Nos. 94-17032, 9515092 (pending in the United States Court of Appeals for the Ninth Circuit) involves an action by the Hopi Tribe for damages to the Hopi Partitioned Lands from Navajo overgrazing of those lands prior to partitioning of the Joint Use Area in 1979. The claim is based on two provisions of the 1974 Settlement Act, 25 U.S.C. 640d-5(d) and 17(a). On January 15, 1993, the district court awarded the Hopi Tribe damages in the amount of $3,168,388 against the Navajo Nation. Both the Navajo Nation and the Hopi Tribe appealed from that decision to the Ninth Circuit. appeal, the Hopi Tribe sought an increase in the damages award and both Tribes argued that the district court erred in finding the United States not liable.

On

The third lawsuit, Hopi Tribe v. Navajo Tribe et al., Civ. 85-801 PHX-EHC, is now pending in the United States District Court in Phoenix, Arizona. This case concerns rent owed the Hopi Tribe by the Navajo Nation, pursuant to 25 U.S.C. 640d15(a), for Navajo use of Hopi Partitioned Lands for homesite, farming and livestock grazing. The Hopi Tribe's claims include an action against the United States for the alleged failure of the Secretary of the Interior to issue the rental value determinations in a timely fashion. The Hopi Tribe threatened to renew its motion alleging a breach of the Secretary's duty to timely issue the rental determinations and seeking monetary compensation for lost use and rent because of the delay in issuance of the rental determinations. The Department of the Interior is many years in arrears in issuing final rental determinations for use of the Hopi Partitioned Lands. The Settlement Agreement bars the Hopi Tribe's claims against the United States for damages caused by the delay on condition that the decisions are issued by January 1, 1997. In other words,

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under the Agreement, the Department of the Interior has one year to become current with rental determinations.

The final matter resolved by the Settlement Agreement is a
threatened action against the United States by the Hopi
Tribe that would include a claim alleging a temporary taking
without compensation and a claim for breach of trust for
failing to remove Navajo residents of the Hopi Partitioned
Lands by 1986.

The Justice Department evaluated each of the Hopi Tribe's claims in light of the facts in each case, the legal arguments for the claim, and the likelihood of success on defenses potentially available to the Federal Government, such as the statute of limitations and lack of jurisdiction. The analysis of these claims was reviewed by Justice Department attorneys with many years' knowledge of these cases, by senior attorneys with expertise in the particular fields of law involved, by Assistant Attorney General Lois Schiffer and, because of the large sum involved, by Associate Attorney General John Schmidt.

As a longstanding policy matter, the Justice Department does
not provide its assessment of the litigation risk involved
in each of the lawsuits. It would be especially imprudent
to do so in a context such as this, where the lawsuits are
still "live" because the dismissals are contingent on events
that have not yet transpired and, hence, have not become
final. I hope that the above description of the claims will
help the Committee better understand the litigation risks
faced by the United States.

Question la. What other outstanding claims does the Hopi Tribe or the Navajo Nation have against the United States? Why are these claims not included in this settlement proposal?

Response:

The Hopi Tribe has no other outstanding claims against the
United States.

The Navajo Nation has one outstanding claim against the United States concerning the 1882 Reservation. This claim is in the lawsuit Secakuku v. Hale, 9th Cir. Nos. 94-17032 and 95-1502 (the "Damages Case," described above). The Navajo Nation claims that the United States is exclusively liable for harm its members caused to the Hopi range. According to the Navajo Nation, Congress intended that the United States bear all the costs of harm caused to the Hopi by Navajo livestock grazing. We do not share that reading of the 1974 Act. Even if the Navajo Nation were to prevail,

at most, the United States' exposure on the Navajo claim
approximates $2 million.

That claim by the Navajo Nation is not included in the
settlement because the Navajo Nation did not want to discuss
settlement of the Secakuku v. Hale case or other monetary
issues between the Navajo Nation and the United States
during the period from 1993 to late 1995, while the Navajo
families and the Hopi Tribe were negotiating the terms of
the Accommodation Agreement and while the United States and
Hopi Tribe were working to restructure the compensation
provisions. In the fall of 1995, shortly after oral
argument in Secakuku v. Hale, we expressed to the Navajo
Nation that we thought the optimal time for resolution of
their claims was upon us, in part because we did not know
how soon after argument the Ninth Circuit would issue a
decision and in part because we were about to resolve the
Hopi Tribe's claims against us in that lawsuit. The Navajo
Nation did not want to negotiate that issue.

There are no other outstanding claims by the Hopi Tribe or the Navajo Nation against the United States concerning the land dispute.

1 For the sake of completeness, we note that the United States and the Hopi Tribe have an outstanding claim against the Navajo Nation concerning the Navajo-Hopi Land Dispute which is not resolved as part of the settlement. This case involves an approximately $800,000 contempt fine against the Navajo Nation in Masayesva v. Zah, 9th Cir. No. 90-15304 (the "New Construction Case"). The fine was imposed for failure to remove a structure that had been constructed in violation of the court's earlier order. This matter is now under the Mediator's direction and settlement proposals have been exchanged. Any contemplated settlement would not require Congressional action.

The Navajo-Hopi Land Dispute concerns the use of the 1882 Reservation lands and the 1974 Settlement Act's relocation provisions which apply to those lands. The 1934 Act lands are located to the west of the 1882 Reservation. The United States, Navajo Nation, and Hopi Tribe are litigating disagreements concerning use of those lands in lawsuits that have not been a part of the negotiations that have been directed by the Ninth Circuit Court of Appeals, and have led to the settlement agreements.

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Question 1b. Can we expect a subsequent action by the Navajo Nation or the Navajo families in the event of non-performance by the Federal Government?

Response:

If

It is common in any settlement that one party may have
recourse against another in the event of non-performance of
an agreed obligation. In this Settlement Agreement, the
United States has certain obligations to the Hopi Tribe.
the United States defaults on those obligations, the Hopi
Tribe has remedies against the United States. Default by
the United States does not relieve the Hopi Tribe of its
obligations to Navajo families who are living on the Hopi
Partitioned Lands pursuant to the terms of an Accommodation
Agreement. We are committed to upholding our end of the
bargain. But if we should fail to meet our

responsibilities, our non-performance will not result in
harm to the Navajo Nation or Navajo families. Thus, we do
not anticipate an action by the Navajo Nation or the Navajo
families in the event of non-performance by the Federal
Government.

Question 1c. What problems will these settlement agreements resolve? What parts of the dispute will these agreements not resolve?

Response:

Under these historic consensual agreements, the Hopi Tribe
will allow Navajo families, whose names appear on the list
appended to the agreement, to remain on the Hopi Partitioned
Lands lawfully. This central issue, which has caused
conflict between the Tribes for over a century and which has
consumed an enormous amount of the resources of the
executive, judicial and legislative branches of the United
States government for the last 50 years, will be resolved.
These agreements allow for relief from the construction
freeze so that Navajo families may repair and improve their
homes, transfer grazing permits and increase grazing
allocations. They also provide for a return to the Hopi
Tribe of jurisdiction over range units now under Bureau of
Indian Affairs authority.

These settlement agreements also resolve the United States' liability to the Hopi Tribe in several existing and threatened lawsuits enumerated above. These settlements do not resolve various claims between the Tribes for money damages, as described above in response to question la.

In addition, these settlement agreements have paved the way for a final resolution of injunctive, non-monetary claims

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brought on First Amendment and other grounds by some Navajo individuals residing on the Hopi Partitioned Lands in Jenny Manybeads v. United States, 9th Cir. No. 90-15003. Under the Mediator's direction the United States and the Manybeads Plaintiffs are negotiating the process for bringing those claims to final resolution, in recognition of the existing agreements. This is strictly a procedural issue; no additional funds or compensation would be involved.

Question 1d. What does the United States get by settling these claims in this manner?

Response:

The United States gains in several ways through the settlement agreements. The settlement provides Navajo residents of the Hopi Partitioned Lands who wish to remain at their homesites in a relationship of mutual respect with their Hopi neighbors an alternative that allows them to do so. It relieves the United States of the obligation to relocate Navajo residents who wish to remain and may now do so under the Accommodation Agreement terms. The settlement also resolves most of the litigation that has been a drain on all the parties' resources, including those of the United States.

Question le. What can the Congress do to help support and effectuate this Settlement Agreement?

Response:

Congress can help support and effectuate this settlement by expanding the Hopi Tribe's leasing authority through amendment of 25 U.S.C. 415, as it has done for numerous other tribes. The Hopi Tribe currently may not enter into leases of its lands for a term in excess of 25 years with one renewal. In order to give effect to this consensual resolution, the Hopi Tribe is seeking from Congress 75-year leasing authority.

Question 2. What happens if the Hopi Tribe receives significantly less than 500,000 acres of land into trust?

Isn't

it quite likely that the amount of land taken into trust will be significantly less than 500,000 acres?

Response:

The United States will take land into trust for the Hopi
Tribe only on certain conditions:

▸ The Hopi Tribe must purchase the land from its own funds from a willing seller. If the land that the Hopi Tribe