EXHIBIT A Both the BIA's and the Relocation Commission's enumerations are based on very client-specific data bases. To use these numbers, either separately or in conjunction with each other, as the basis of a purported full enumeration of Navajo residents of the HPL is misleading. Neither data base is complete. The Navajo Nation is continuing its cross-checking of Relocation Commission and BIA records with Tribal family records and field work. We have counted to date 1,130 adults in 828 discernible households who we believe are full-time residents of the HPL or who return regularly to their homes on the HPL and thus have resident status. The total Navajo population, including children, on the HPL is 1,655 persons. Attached to this statement is a tally sheet showing our breakdown of these people into various mutually exclusive categories within the Chapter communities of the HPL. Every number on this sheet represents an identifiable person, and for every number the Navajo Nation has a name and census number. EXHIBIT B RESPONSE OF THE NAVAJO NATION TO CONSTITUTIONAL ISSUES Assistant Secretary Swimmer's statement, without presenting any legal analysis, threatens that H.R.4281 may be unconstitutional. Several possible theories are named, but the applicability of these theories to H.R. 4281 is unclear. The first suggested problem relates to whether the land exchange can be characterized as a taking. In advancing this argument, Mr. Swimmer relies upon the Supreme Court's holding in United States v. Sioux Nation, 448 U.S. 371 (1980). In that case the Court addressed whether the taking of the Black Hills of South Dakota constituted a noncompensable act of congressional guardianship or a taking in violation of the Fifth Amendment. The principles of decision announced in Sioux Nation and the striking dissimilarity between the legislative action characterized as a taking in Sioux Nation and the action proposed by H.R.4281 provide ample support for the firm conclusion that H.R. 4281 constitutes an exercise of Congress' trusteeship authority over Indian affairs and not a taking requiring just compensation. This conclusion can be better understood after detailed consideration of the Sioux Nation decision. EXHIBIT B By the 1868 Treaty of Fort Laramie the United States established the Great Sioux Reservation for the exclusive use of the Sioux and pledged that no unauthorized persons would be permitted to settle upon this reservation. (15 Stat. 635) The 1868 Treaty also included a provision requiring that any subsequent diminution of the reservation be approved by three-fourths of the adult male members of the Sioux Nation. In 1874, after gold was discovered in the Black Hills, great pressure was brought upon the federal government to permit non-Indian settlers and prospectors to occupy the Black Hills. At first, the U.S. Army protected the Sioux's exclusive rights to the Black Hills. However, in 1875 a confidential decision was made by the Executive Branch to no longer resist the non-Indian occupation of the Black Hills. Recognizing that the non-Indian settlers rights to remain in the Black Hills had to be "legally" secured, Congress sought unsuccessfully to negotiate a purchase of the Black Hills with the Sioux. Violence followed the failure of these negotiations, and in 1876 (apparently in response to a Congressional threat that no subsistence rations would be provided to the Sioux unless Sioux rights in the Black Hills were relinquished) approximately ten percent of the adult male Sioux signed an agreement relinquishing the sought after land. EXHIBIT B By this agreement the Sioux gave up more than 7 million acres. In return they received 900,000 acres, subsistence rations and a promise of the Government's assistance in the "work of civilization." In order to validate this agreement despite its derogation from the requirement of three-fourths approval set forth in the 1868 Treaty of Fort Laramie, Congress enacted legislation ratifying the agreement. (19 Stat. 254) This legislation did not purport to provide a fair exchange to the Sioux Nation. In 1978, Congress passed a special jurisdictional act directing the Court of Claims to review Sioux claims arising out of the appropriation of the Black Hills portion of the Great Sioux Reservation (92 Stat. 153) Finding that the 1877 congressional action did not represent a good faith effort to give the Sioux the full value of the Black Hills, the Court of Claims held that a compensable taking, and not an exercise of the government's trusteeship authority over Indian affairs and tribal lands, had occurred. On appeal, the Supreme Court affirmed the decision of the Court of Claims. United States v. Sioux Nation, 437 U.S. 371 (1980) In so-doing the court announced the "standard that ought to be emulated by court's faced with 1/ Several earlier actions and appeals were prosecuted by |