I think it would be foolish to think there is an easy solution to the Navajo-Hopi dispute. If there was, smarter men than myself would have come up with a solution in the last 104 years. I think we should view H.R. 4281 as a vehicle, a vehicle to spur discussions and negotiations. If a better solution is available, it is my hope that H.R. 4281 can be amended to encompass that settle ment. In the 1880's, as we know, the Federal Government made decisions which had an impact on both tribes, without consulting them, nor anticipating the long-term results. As a result, the Hopi Reservation, which I have visited several times, is totally surrounded by a Navajo reservation. Additionally, since the establishment of the 1882 reservation, members of both tribes have competed for limited resources on the land, primarily grass and water, for sheep or cattle. Several times this has resulted in confrontation. Three times the Congress has addressed the issue. In 1958 Congress authorized that the two tribes could sue each other to determine the respective rights to the joint-use area. In 1974 in response to a court order to divide the JUA, Public Law 93-531 was enacted which provided for the partition of the JUA, established a commission to assist families in relocating and provided benefits for families to relocate if they found themselves on the wrong side of the partition line. In 1980 Congress amended Public Law 93-531 to provide for new lands for resettlement and lengthened the time in which relocation would be accomplished. According to present law, those Navajo families living on the Hopi partition lands after July 6 of this year, will no longer have a legal right to live there and may be subject to eviction. We have an inherent conflict between legal rights and human rights. To complicate the matter, the Chairman of the Relocation Commission has admitted that relocation will take years to complete. It has cost the Federal Government millions of dollars, as I have previously stated, and we still have between 250 and 400 families still in the HPL. More tragically, we have over 1,100 Navajo families who have moved off the land and are awaiting relocation benefits. Lands in the JUA are without economic activity. Due to the administrative and judicial decrees and the tribes and the Government cannot expend money on roads, houses, schools, et cetera. No one can deny that there is a problem with JUA, but I do not know what will happen after July 6. Mr. Chairman, I received a letter this morning from Mr. Richard Morris, who you know was the chief negotiator for Mr. Clark when the President designated him back 1 year ago to try and come up with a resolution to this issue. I would like to have his letter to me made part of the record, and with your permission I would like to quote from the final paragraph. The CHAIRMAN. Without objection, the letter will be made a part of the record. [EDITOR'S NOTE.-The above-mentioned letter may be found in the appendix. See table of contents for page number.] Mr. MCCAIN. Mr. Chairman, Mr. Morris, in his letter, talks about how he assisted Mr. Clark more than 1 year ago in an effort initiated by President Reagan to determine whether the Navajo and Hopi Indian Tribes might themselves resolve longstanding intertribal differences by negotiations. The concluding view in his memorandum states: Responsible agencies of Government now must undertake whatever action they deem appropriate to solve inter-tribal issues. If action is to be taken, it is hoped that the whole range of issues, not just today's relocation problem, be addressed. Unless a comprehensive plan be thoughtfully developed and put in place, fundamental tribal disputes may persist for still another century. Mr. Morris goes on to say, "Certainly, H.R. 4281 must be recognized as an effort to put in place such a comprehensive plan as contemplated in the memorandum." Mr. Chairman, I believe that what you have tried to do in this legislation is, indeed, fitting, and I think it is important that this hearing today be a proper ventilation of the issues in our continuing effort to resolve this issue. Please accept my appreciation for your dedicated efforts on behalf of this very difficult situation. Thank you, Mr. Chairman. The CHAIRMAN. The Bible says, "Blessed are the peacemakers," but I think my experience and that of others has been blessed are the peacemakers for they shall be zapped from all sides. The gentleman from New Mexico. Mr. RICHARDSON. Mr. Chairman, I, too, wish to commend you and Mr. McCain for offering this piece of legislation, and you, Mr. Chairman, for being the champion of justice when it has come to Indian people, and I only would like to point out that this is not an issue that just affects Arizona and affects a certain part of that State. It affects New Mexico, it affects the Southwest; it affects this country. The world is watching to see how the Congress of the United States, the Indian people, how we as a nation deal with this issue, and so far the record has not been good. When I first came to Congress it made imminent sense when the two chairmen came to us and said, "Stay out. We want to negotiate directly. Give us some time." Regrettably they were unable to come to some conclusion and now the issue is back in our lap. This hearing today is an important one, Mr. Chairman. There have been a number of other hearings in Congress on the NavajoHopi relocation issue the last decade. These hearings have chronicled the many problems created by the Navajo-Hopi Relocation Act. Tragic tales of human suffering of loneliness, alienation, alcoholism, cultural estrangement, and bureaucratic inefficiencies, of commissions with no clear plan of action, cost overruns and rampant heartlessness and incompetence runs the theme through the voluminous testimony presented to Congress. With a deadline of completion of relocation only weeks ago, the tragedy of this act is being compounded and the situation is rapidly heating up. The potential for violence is regrettably growing daily. I am concerned about the people being adversely affected by the relocation. People who have already been relocated are suffering enormously due to their moves. They have lost their homelands, their livelihoods, their ties to their ancestors, and their very way of life. They have been abused and taken advantage of at every turn. The people remaining to be relocated, the grandmothers or grandfathers, husbands, wives and children, brothers and sisters, young and old, have nothing to look forward to. They have been watched as their neighbors, friends, and relatives have relocated and suffered, too. They understand that if they, too, must move, only suffering and loss is in store for them. I am also concerned with dealing in an equitable fashion with the Hopi people, who in the course of this entire process, I think, have been a positive force in trying to reach settlement. Relocation, however, has not been a positive experience. It is a tragedy, and it has been ongoing while bureaucrats and governments, tribal and Federal, have argued, debated, negotiated, and broken off negotiations. While all the people not directly threatened by relocation have been debating its pros and cons, the movement of the people involved off their lands has continued, and it hangs as a cloud over every day of their existence. As I sit in this hearing today and listen to our esteemed witnesses, it is these people, the ones who have been suffering through this ordeal who I will have in mind. Many of the people in my district, Mr. Chairman, Navajo and non-Navajo, Indian and non-Indian, have contacted me to express their concerns about the relocation. The consequences and impact of the relocation are far reaching. I am here today to listen and to question. The bill that you have introduced with Mr. McCain, I believe, in general is a step in the right direction, because it gives an alternative plan, something that has been lacking for many years. Meanwhile we must remember all of the people involved in this dilemma, and I look forward, Mr. Chairman, as we proceed with these hearings. Possibly there may be a more constructive way to deal with the issue, but you should be commended, because you have taken the first step. I think it is a positive one. But nonetheless, the concern that I have, once again, is for those men and women at this very instant, that are being relocated at a time when we as a government and we as a nation are unable to conclude this issue. Thank you, Mr. Chairman, for the opportunity to speak. Mr. Lagomarsino. Mr. LAGOMARSINO. Very briefly, Mr. Chairman. I want to join in commending you for holding these hearings. Many people in my district have contacted me about this issue and I am pleased that at least the hearing is being held, where we can obtain information and hopefully find a way to settle this very difficult issue. The CHAIRMAN. Thank you. Mr. Strang. Mr. STRANG. Very briefly, Mr. Chairman, I would like to commend you for holding this hearing, and to wish you the wisdom of 18,000 gods to work your way through this one in the hope that you can receive enough testimony from all sides to be sure that we act with a good deal of common sense and work our way through what could be a very tragic situation. Thank you. The CHAIRMAN. I thank my friend. We are having today three witnesses. The Honorable Ross Swimmer, Assistant Secretary for Indian Affairs, U.S. Department of the Interior, will be the first witness. If you will come forward and take the chair, Mr. Secretary, we will be glad to hear from you. Let me add to what Mr. McCain said, that you bring to your new office, the high hopes of a lot of people, both Indian and nonIndian, who admire the way you have taken hold of your position and look forward to your leadership. I hope you can tell us in the next 10 or 15 minutes how we can resolve this 104-year-old controversy. You may not be able to, but give it a good try. We are glad to have you here. [Prepared statement of Hon. Ross Swimmer may be found in the appendix.] STATEMENT OF HON. ROSS SWIMMER, ASSISTANT SECRETARY FOR INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR Mr. SWIMMER. Thank you, Mr. Chairman. I appreciate the opportunity to be here and to address the chair and the other Congressmen. I want to add my good thoughts to the chairman and Congressman McCain and the others who have worked so diligently to seek a solution to this very difficult issue. I myself am a newcomer to the business of Navajo-Hopi relocation. Upon coming into this office in December, I discovered the issue to be extremely complex and there was a great deal of concern both here in Congress and in the administration about what was happening and the process it was taking and where it was all leading. I discovered the Navajo-Hopi Indian Relocation Commission that had been set up as a Federal agency in 1974 was charged with the responsibility of carrying out the mandate of Congress at that time. I also made a couple of visits to the Hopi partition lands and to the Navajo reservation. I have talked to both tribal leaders, both of them I have known from my past association as a tribal chairman myself. I sought their views and attempted to see if there was a right or a wrong to this issue, and what position the Department of the Interior might be able to take; where we should go in addressing the problems that are confronting us. I have learned a lot. I don't profess to be an expert on this subject. Those of you who are sitting in the Congress have dealt with it for many, many years and I know that in your respective districts it has caused a great deal of concern and anguish among your constituents as it has within the administration; this one and former administrations in our department. I have reviewed the proposed legislation, H.R. 4281. I would like to make a few comments on that and add a few personal comments on what my role and the effort of carrying out the 1974 act has been and where I think we might be able to go. In the proposed legislation, we at the department do have some very serious concerns about the legal and constitutional issues that are raised. The proposed exchange of land, land that has been acquired for the Navajo Tribe to be exchanged to the Hopi's for land that was awarded the Hopi in the court decisions and acts of Congress in 1974. There is a serious question as to the ability of the Congress to make such an exchange on behalf of the two tribes and not face a potential taking issue. In other words, due compensation may not be considered to be provided and one or the other tribes might have a cause of action against either the U.S. Government or the other tribe. Although there is a great deal of latitude within the Congress to exercise its plenary power over Indian tribes, it is limited in this plenary power and must also exercise the fiduciary duty when dealing with the assets of any tribe and it simply cannot swap one for the other unless it is clear that there is compensation and consideration going both ways. The issue of the $300 million payment raises a question as to, again, adequate consideration. There is no particular timetable set for that payment. It is based on coroyalties that may or may not be present now or sometime in the future. The issue of consent of the Navajo Tribe being required to exercise consent to have the terms of the bill approved passed by the tribal council raises an issue of equal protection. The attempt to decide the claims of the current residents of the HPL and those who have been removed, I am not sure we can do that. Our Solicitor believes that under the legal contracts that have been entered The CHAIRMAN. One moment, Mr. Secretary. I think the Great Spirit wants to be heard. [Laughter.] Will the staff check out and see what that interruption is. Mr. SWIMMER. The issue of settling outstanding claims inmaybe we can be heard over the hammering. The CHAIRMAN. We can hear you up here I think. Mr. SWIMMER. There are contracts that have been signed with what we believe to about 1,215 people certified as eligible for relocation benefits who are no longer on the HPL, as well as contracts that have been signed with about 220 or 230 residents of the HPL. We believe that these contracts do cause consideration to be required to be paid by the Federal Government and that the contracts could not simply be canceled. In other words, if the intent of the bill would be to minimize the cost to the Federal Government, I don't think that that would be accomplished. I believe that those outstanding contract liabilities are going to be with us and would have to be recognized, even to the people living on the HPL today. If they were told not to move then I think having been there for the last 10 years or so and being under contract for certain relocation benefits that they could claim consideration and would be entitled to some payment as a result of that. In going back to the remedy that was proposed by Congress in 1974 in the partition of the land and relocation of each tribe's members that lived on the other side of the line, I don't pretend to be able to guess the intent or the motive of Congress, except to assume that it was honorable and that it was well thought out and that many, many years went into the study of a solution as was related by the chairman. Serious negotiations by the tribes were |