This is written confirmation of matters upon which we had conferred and reached conclusions and understandings relative to differences confronting the Navajo and Hopi Indian Tribes. It is further understood that the matters herein reported shall form the basis for your verbal presentation to President Reagan. Additionally, this material will be provided to those persons and agencies of government having a particular interest in resolution of intertribal differences.

On February 8, 1985, President Reagan commissioned you to determine if agreement could be effected between the Tribes over differences in implementation of the 1974 Hopi and Navajo Land Settlement Act and the 1980 amendment hereto (hereinafter, the Settlement Act). The Act requires, among other things, the relocation of Navajo tribal members from lands partitioned to the Hopi Tribe pursuant to the Settlement Act. You associated me, your former Counselor while at the Department of the Interior, to assist in this effort.

During the past seven months we have conferred with Chairman Peterson Zah of the Navajo Nation, with Chairman Ivan Sidney of the Hopi Nation, with other leaders in each nation, with tribal members affected by relocation as mandated in the Settlement Act, with concerned agencies of government and other institutions and persons having special knowledge of intertribal differences. We visited the disputed areas and those persons subject to relocation. We have made a serious attempt to understand particular associations and situations which threaten full implementation of the governing statutes. Those understandings probably cannot be fully achieved except by one who has experienced in depth the culture and traditions of both the Hopi and the Navajo Tribes. Our exposure to those cultures and traditions, while falling short of that necessary for a complete understanding, has nevertheless been sufficient for our purposes.

We approached this assignment with recognition that the issues to be addressed are governed by laws, and we have consistently urged compliance with relocation processes as mandated by governing statutes. However, our particular effort, as directed in the President's letters of February 8 to the Chairmen, is not to bring about compliance with the law. Other agencies of government have that responsibility. Rather, we sought to determine whether there were resolutions in which the Tribes could voluntarily join. Such resolutions could be effected either under existing law or changes in the law designed to accommodate tribal agreements.

It follows, of course, that should either Tribe irrevocably conclude that it is not in its individual best interest to negotiate with the other for an agreement, an agreement would not be possible. This does not mean that problems which confront the Tribes under existing law cannot be resolved, but only that they cannot be resolved by voluntary agreement between Hopi and Navajo. Agencies of government apart from our efforts have responsibility and authority for initiating processes to correct what they may deem to be improper or unjust. Same persons have, in error, assumed that the President's appointment vested in you an authority to make depositive decisions and to take unilateral actions. We have consistently advised, on each occasion when the question arose, that you lack such authorities. Those authorities and responsibilities to initiate actions remain with the vested agencies of government. Lacking agreement between the Tribes or change in existing law, it is clear that the relocation of Navajo from Hopi lands must go

forward.

Bistorical Background

Limitations do not permit a full development of the centuries-old differences between Hopi and Navajo. Literally thousands of papers have been researched and written on those differences, generally posing contrasting solutions, many of which differ from solutions provided by existing law.

Few dispute that the Hopi have a longer authenticated history in North America than any other ethnic group. Today they occupy the same villages on high mesas in northeastern Arizona occupied by their ancestors centuries ago. They have been generally a peaceful people and, admirably, their Tribe is one of a very few which had no occasion to enter a treaty with the United States--perhaps to the Hopis' disadvantage. In 1882, President Arthur, by Executive Order, granted the Hopi a reservation in what is now northeast Arizona consisting of a rectangular area of approximately 70 miles in its north-south dimension and 55 miles in its east-west dimension (2,500,000 acres). At that time there were approximately 1,800 Hopi living on the reservation, and today that number has grown to approximately 11,000.

Although there is disagreement on when the Navajo first entered the area they now occupy in Arizona, New Mexico and Utah, their presence occurred much later than the Hopi presence but earlier than the arrival of the white man in the sixteenth century. The Navajo moved about in the area, becoming involved in confrontations with neighbors. In 1863, Colonel Kit Carson led a military force which impounded the main body of Navajo near Fort Summer in New Mexico. In 1868 the United States entered into a treaty with the Navajo pursuant to which they were granted a reservation overlapping the northern Arizona-New Mexico border. That reservation has been successively expanded, mainly in a westwardly direction, and today is as large as the State of West Virginia (approximately 16,000,000 acres) and completely surrounds the Hopi reservation. Since 1868 the approximately 8,000 Navajo on the reservation has increased to approximately 165,000.

Intertribal problems might well be expected when a smaller, probably less aggressive Indian nation occupies an island reservation within the reservation of a much larger, expanding Indian nation. However, the problems and their solutions are far more complex than those arising merely from the physical juxtaposition of the two reservations. In major part, the complexity arises from historical, cultural and traditional considerations.

Life styles of the two Tribes following establishment of the reservations led to immediate problems. Hopis generally limited their living areas to their mesa villages concentrated near the center of the reservation (hereinafter referred to as District 6), using the outlands for grazing, growing, gathering and religious and cultural purposes. The more nomadic Navajo wandered onto and lived within the 1882 Executive Order reservation. While that Executive Order provides a reservation "for the use and occupancy of the Moqui (Hopi)," it further ambiguously provides for use and occupancy of "such other Indians as the Secretary of the Interior may see fit to settle thereon." There were at least 300 Navajo residing on the reservation in 1882, and in following years their population increased significantly. The ambiguity of the Executive Order led to conflicting claims of entitlement to the 1882 reservation area. Efforts to resolve the controversy were unsuccessful, and in 1958 the Congress authorized commencement of court proceedings to determine rights and interests of the Tribes "as may be just and fair in law and equity." At that time there were almost 9,000 Navajo on the 1882 reservation, a population significantly larger than the entire Hopi population. In the same year the Hopi commenced an action which became known as Healing v. Jones in the Untied States District Court of Arizona.

The District Court rendered its decision in the Healing case in 1962. In support of its judgment the court made extensive findings of fact. Many of these findings continue to be challenged, as they were during trial. We neither challenge nor confirm findings relative to

historical and religious matters and we must accept as final those determinations made by an institution of our government which has addressed them in due process proceedings. Perhaps most significantly, the court found that while the Secretary of the Department of the Interior never expressly "settled" Navajo on the 1882 reservation as authorized by the Executive Order, it was deemed that the Navajo had been impliedly settled by virtue of Secretarial inaction to Hopi complaints, thus condoning Navajo presence. The court appeared to find that the Hopi had been disadvantaged by such inaction and the ever expanding needs of the enterprising Navajo population, neither of which the Hopi could control. It describes the Navajo as having a "proclivity to commit depredations against the Hopi," and the government as reticent to antagonize the Navajo. It states that the failure of the Hopi to make fuller use of the 1882 reservation outside of District 6 "was not the result of a free choice on their part. It was due to fear of the encircling Navajos and inability to cope with Navajo pressure." The court nevertheless concluded that both the Navajo and Hopi Tribes had been settled on the 1882 reservation. It declared that, subject to the trust title in the United States, the Hopi Tribe has an exclusive interest in District 6 and that the Hopi and Navajo Tribes "have joint, undivided and equal interest in and to all the 1882 reservation" other than the area of District 6. The "Joint Use Area," as it became known, occupies approximately 1,900,000 acres of the 2,500,000 acre 1882 reservation.

The District Court concluded that the 1958 enactment authorizing the Healing litigation did not confer jurisdiction upon it to divide the Joint Use Area (JUA) into equal exclusive enclaves for each the Hopi and the Navajo Tribes. That division was left to the Settlement Act in 1974. In principle part, the act provides for mediation by the Tribes for partition of the JUA, for recommendations to the court in supplemental Healing proceedings to be made by a mediator should the Tribes fail to agree on partition, and for court partition of the JUA. Only the surface rights of the JUA were subjected to partition, with the Tribes retaining their joint and undivided interests in subsurface mineral resources. The act also establishes the Navajo and Hopi Indian Relocation Commission, and charges the Commission with reporting on, accomplishing and paying for the relocation of Hopi and Navajo families away from lands partitioned to the other Tribe. Relocation is scheduled for completion on July 6, 1986. After that date, those Indians remaining on lands not apportioned to their Tribe will technically be trespassers subject to eviction and other judicial processes.

The Tribes were unable to agree on partition and a partition line equally dividing the land area of the JUA between the Hopi and Navajo Tribes was eventually fixed by a mediator and approved by the court. Fixing the line was extremely difficult because of the very large population of Navajo throughout the JUA. While centers of Navajo population were sought to be included on the Navajo side, the line

could not be drawn except with large Navajo populations on the Hopi side. There were approximately 12,000 Navajo and only 100 Hopi subject to relocation by placement of the line. In some instances Navajo families had resided on what became Hopi Partition Land (HPL) for generations dating back before the 1882 Executive Order. Other relocatee families were those of veteran World War II Navajo Code Talkers who contended they had fought to protect their right to these lands. Others were fandlies who once before had been subjected to relocation when they were first required to abandon their Navajo homes within District 6.

Anticipating the need for additional lands to accommodate the large numbers of Navajo to be relocated, the Congress provided for the acquisition of 400,000 acres of new lands by the Navajo for annexation to their reservation. This acquisition would approximate 42% of the area of the HPL from which Navajo were to be moved. The 400,000 acres consists of 150,000 acres to be acquired in fee by the Navajo, and 250,000 acres to be acquired by the Bureau of Land Management (BLM) for transfer to the Navajo. The Navajo have acquired their fee lands (The Bar N Ranch) and the BLM, through extraordinary effort, is in the final process of completing acquisition of the adjoining ranches which make up the new lands. All the new lands will be adjacent to the present reservation in Arizona except for 35,000 acres in New Mexico, on which valuable coal deposits are located (the Paragon Ranch). BLM acquisitions in Arizona are of surface rights only and the acquisition process is being challenged by the Santa Fe Pacific Railroad Company, which owns underlying mineral interests. Santa Fe claims the BLM is required to acquire and transfer to the Navajo Tribe Santa Fe's mineral interests as well as the surface interests of the new lands.

At the present time the new lands are undeveloped, without adequate roads, water, fencing, food sources and infrastructures necessary to support relocatees. No provision has yet been made by the Congress or the Navajo Tribe to provide these resources.

Intertribal Differences Other Than Relocation

The 1882 reservation relocation problem is not the only major dispute confronting the Navajo and Hopi Tribes. By Act of Congress in 1934 ("The 1934 Act"), the boundaries of the Navajo reservation in Arizona were defined and certain lands designated "for the benefit of the Navajo and such other Indians as may already be located thereon." The Hopi have long claimed rights arising out of The 1934 Act. A well-established Hopi village, Moencopi, exists within the Navajo reservation in Arizona. Pursuant to long ignored Hopi claims, in 1966 Indian Commissioner Robert Bennett imposed a "freeze" (to became known as the "Bennett Freeze") on a large area within the Navajo reservation lying westerly of the 1882 reservation. The freeze precludes improvement within the area--as, for instance, improvements to a residence--without the concurrence of both Tribes. The freeze was