EXHIBIT B

Fifth Amendment, force the Hopi Tribe to accept Navajo land as compensation for Hopi-partitioned land or shift the burden of just compensation to the Navajo Tribe are chimerical. Section 12 of the Bill makes clear (and the discussion of Sioux Nation bears out) that H.R. 4281 represents an exercise of Congress' trusteeship authority over Indian affairs and not an exercise of Congress' sovereign power of eminent domain requiring just compensation.

The power of Congress to

substitute property in the exercise of its trusteeship authority with respect to Indian Affairs is central to the decisions in Sioux Nation, supra, and Three Tribes of Fort Berthold Reservation v. United States 182 Ct. Cl. 543 (1968); cf. Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 85-86 (1976), rehearing denied 431 U.S. 960 (1977) (upholding the authority of Congress to exclude the Kansas Delawares from an Indian Claims Commission award). In none of these cases was there ever tribal consent to the substitution. assertion that such consent might be necessary starting with H.R. 4281 has no basis in constitutional law.

The problems with Navajo consent and equal

protection are similarly illusory.

The

The consent requirement

is a political matter. It is aimed at preventing the Navajo Tribe from challenging, at some future date, the transfers that would be effected by H.R. 4281. The fact that it creates a disparity between the treatment of the Navajo and Hopi tribes does not create constitutional problems as long

EXHIBIT B

as the "special treatment can be rationally tied to the fulfillment of Congress' unique obligation toward the Indians." Morton v. Mancari, 417 U.S. 535, 555 (1971) and Delaware Tribal Business Committee, supra, 430 U.S. at 83. In a case such as the Navajo-Hopi land dispute, where, after years of study, Congress endeavors to provide a comprehensive and final solution to a century of land disputes by enacting legislation which would exchange hotly contested areas between neighboring tribes, it is impossible to say that Congressional action is not rationally related to Congress unique obligation to the Indians.

Finally, the extinguishment of the contract rights of those Navajos residing on Hopi-partitioned land is not, as Mr. Swimmer suggests, a taking which would require just compensation by the United States. Fair value is provided to these Hopi-partitioned land residents. The value exchanged for the termination of their contract rights is the invaluable right to remain on their ancestral lands. To the extent there is any ambiguity about this fact, clarifying language could be included in section 12, in order to assure that this, the most important benefit of H.R. 4281, will not be viewed as a taking.

SUBJECT: Exchange of Land Between Hopi and Navajo Tribes:
Whether Congress May Order Exchange of Land Without

the Approval of Either Tribe and After a Court Has Ordered

a Different Partition of the Land Pursuant to an Act of Congress.

In your July 3, 1981, letter to Joseph Ross, Chief of this division, you raised the question of whether there is a constitutional bar to enactment of a statute repartitioning land between the Navajo and Hopi tribes, which federal court pursuant to an act of Congress, and which repartition might not meet with the approval of

land has already been partitioned by a 1/

either tribe.

The question involves two subordinate issues: (1) whether such an exchange is within the power of Congress, and (2) if it is within the power of Congress, under what constraints must Congress operate in exchanging the land. To resolve either of these issues, we must focus on the nature of the property rights involved and the effect of the court-ordered partition.

1/ Pub. L. 93-531, 88 Stat. 1612 (1974), as amended by Pub. L. 96-305, 94 Stat. 929 (1989); 25 U.S.c. §§ 640d-640d-28.

EXHIBIT C

The land in dispute has been the habitat of both tribes for centuries, although the Hopi, a more sedentary people than the Navajo, may have been

the earlier tribe to settle there.

There are at least two separate major lines of litigation between the Navajo and Hopi over title to land, one stemming from a 1934 statute setting "[e]xterior boundaries of the Navajo Reservation in 3/ Arizona," and the other, from an 1882 executive order, setting apart certain land "for the use and occupancy of the Maqui [Hopi] and such other 4/ Indians as the Secretary of the Interior may see fit to settle thereon."

2/ H.R. Report No. 2503, 82d Cong., 2d Sess., 384, 469 (1952), quoting The Indian Population of the United States and Alaska, 53, 40 (1930); Healing v. Jones, 210 F. Supp. 125, 134 (D. Ariz. 1962), aff'd, 373 U.S. 758 (1963).

3/ Act of June 14, 1934, ch. 521, 48 Stat. 960, 962. This act provided inter alia that:

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 contained herein shall affect the existing status
of the Maqui (Hopi) Indian Reservation created by Executive
order of December 16, 1882.

4/ Exec. Order, Dec. 15, 1882, I Kappler, C., Indian Affairs: Laws and Treaties 805 (1904).

2/

EXHIBIT C

Litigation over title to the land within the 1882 reservation appears to

in a more advanced stage

5/

than that over title to the land conveyed

by the 1934 statute. We. thus, assume you are concerned with land within

the 1882 reservation and have concentrated on that.

6/

Pursuant to Congressional authorization,
7/

three-judge district

8/

in 1962, held that the result of the 1882 executive order

was

court,

that:

(1) the Hopi had an immediate right of use and occupancy of the entire area embraced within the 1882 executive order reservation regardless of whether any Hopi were ther occupying or using the entire area.

(2) the Nava o gaine

Immediate rights in any of the 1887 Lands

although a few landred of The members then oc cupled part of the land embraced within the reservation; for Navajo rights to have arisen there must have been some action by the Secretary of Interior, either express or implied, pursuant to the "such other Indians" clause of the executive

order.

5/ This line of cases includes Healing v. Jones, 174 F. Supp. 211 (D. Ariz. 1959); Healing v. Jones, 210 F. Supp. 125 (D. Ariz. 1962), aff'd, 373 U.S. 758 (1963); 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); Sekaquaptewa v. MacDonald, 544 F. 2d 396 (9th Cir.1976), cert. denied, 430 U.S. 931 (1977); Sekaquaptewa v. MacDonald 575 F. 2d 239 (9th Cir. 1978).

6/ Act of July 22, 1958, 72 Stat. 403.

7/ Healing v. Jones, 210 F. Supp. 125 (D. Ariz. 1962), aff'd 373 U.S. 758 (1963)

8/ The 1958 act basically confirmed the 1882 executive order and declared the executive order lands to be held in trust by the United States for the liopi Indians and such other Indians, if any, as heretofore have been settled thereon by the Secretary of Interior pursuant to uch Executive Order." 72 Stat. 403, § 1. In Healing v. Jones, 174 F. Supp. 211, 216, the court declared that from July 28, 1958, "the beneficiaries of this trust had a vested equitable interest therein capable of judicial recognition ad protection."