Information withheld?
Delegates question timing of release of details about Bennett Freeze settlement

By Kathy Helms
Staff Writer

WINDOW ROCK News of a settlement agreement on the Bennett Freeze approved by the Hopi Tribe in 2004 apparently has been kept from the Navajo people for nearly two years.

Navajo-Hopi Land Commission member Amos Johnson (Black Mesa/Forrest Lake) said, "If that is the case, the Navajo people in the Bennett Freeze area have been held hostage by the president and the attorney general for election-year politics."

Navajo Nation Attorney General Louis Denetsosie worked on the agreement, along with former Navajo attorney Britt Clapham, according to George Arthur, chairman of the Resources Committee. Any such agreement would have to come before Resources. Arthur he was unaware of a settlement and looked forward to details.

Navajo Nation President Joe Shirley Jr. sent a letter Tuesday to Navajo Nation Council Speaker Lawrence T. Morgan urging a special session so that council could give its approval.

"I believe an agreement has been reached and needs to be presented to the Navajo Nation Council for their acquiescence," Shirley said. "I believe the Hopi Tribal Council is doing the same."

Hopi Tribal Chairman Ivan Sidney said the agreement is being presented to the Navajo Council two years after it was proposed.

"The agreement now scheduled for presentation to the Navajo Council was delivered to Navajo for their consideration in 2004. It is not the Hopi who is holding back the Navajo people!"

There has been no comment from Shirley's office.

Chairman Sidney said this is the agreement President Shirley refers to in his letter to the Navajo Nation Speaker; however, he said, it is more appropriate to say that Hopi and Navajo have reached an agreement resolving the 1934 Act reservation litigation and that as part of the settlement, the freeze will be lifted once the Navajo Council approves the compact and upon approval of the compact by the Department of Interior and District Court.

"Any modification to the agreement by Navajo will result in a reconsideration of the agreement by the Hopi Tribal Council," he said.

"The Hopi Tribe looks forward to the day when we finally close the door on the land dispute litigation that has taken far too much of our time and resources."

In a letter to the editor dated June 23 and received by The Independent on June 29, Navajo Nation council delegate and Navajo-Hopi Land Commission member Raymond Maxx wrote that he and Shirley "made it clear that the Navajo Nations is not interested in revisiting decisions of the past. The Nation's goal is to find a way to address the needs of those Navajo families who have suffered because of the Federal relocation program and the Bennett Freeze."

The letter continued, "We believe that it is the Federal government's responsiblity to provide rehabilitation to all who have been adversely affected by these Federal actions, not just the Navajo, although our burden has been the greatest."

Recent history
In 1974, Congress authorized the Hopi and Navajo to litigate the question of their respective rights in the 1882 and 1934 reservations. The Bennett Freeze area was administratively imposed in 1966 within the 1934 Act Reservation by the BIA Commissioner, according to Bertha Parker, public information officer for the Hopi Tribe.

The Bennett Freeze was intended to remove any unfair advantage during the pendency of the 1934 reservation litigation aimed at partitioning the land between the tribes.

The freeze is intended to prevent one tribe from gaining an unfair advantage in the litigation by pursuing a strategy of developing the land with housing and infrastructure improvements and thereby entrenching itself, Parker said.

From such a solidified position, the tribe could appeal to federal court to award it the developed land based on the self-created inequities of requiring the new occupants to give up their property and move, she said.

"This protective goal of the freeze is important in light of the District Court's approach which, so far, has been to give the Navajo all disputed land having any Navajo residences, even if those residences were built in violation of the freeze," Parker said.

The Bennett Freeze was confirmed by Congress in the 1974 Act, mandating that neither tribe could build on lands subject to the 1934 litigation without the other tribe's permission. In 2002, the Hopi and Navajo tribes agreed to mediate and settle the balance of the 1934 Act reservation litigation.

The tribes reached a tentative agreement, or intergovernmental compact, in 2004, subject to approval by the Hopi and Navajo tribal councils, the Department of Interior and U.S. District Court.

Hopi elders and religious leaders met in August 2004 and approved the compact. Once the agreement is approved by all parties, the litigation will be dismissed and the freeze will be lifted.

Hopi losses
"Prior to March 31, 1997, the total area affected by the freeze was approximately 1.5 million acres," Chairman Sidney said.

"Following the narrowing of the dispute to the religious use issue by the Ninth Circuit Court of Appeals and its remand to the District Court, the Hopi Tribe specified the areas where it claims religious occupancy, releasing from the Bennett Freeze area approximately 800,000 acres, more than one-half of the total area involved," Sidney said.

"As a result of the Hopi Tribe's agreement to release (unfreeze) lands no longer in litigation, the remaining 800,000 acres has been made fully available to the Navajo Nation for development.

"Moreover, the Hopi Tribe has addressed all construction issues on lands subject to the continuing freeze on a case-by-case basis and after deliberation and consultation, has approved almost every Navajo Nation request for Bennett Freeze development consent submitted since the Ninth Circuit's remand.

"The Hopi Tribe has taken measures to alleviate the effect of the freeze wherever it could do so without prejudicing its legal rights."

Chairman Sidney said it also should be remembered that the Hopis who live at Moenkopi have lived for the last 67 years in an "intolerable situation."

"Their land has been treated as part of the Navajo Reservation and their rights are frequently ignored by the United States and the Navajo Nation.

"In addition, in other parts of the reservation, Hopis have been harassed and even arrested by the Navajo Nation as they attempted to engage in traditional religious practices.

"The hardships in this dispute have fallen on the Hopi," Sidney said.


 

originally found at the Gallup Independent

        


Reprinted as an historical reference document under the Fair Use doctrine of international copyright law. http://www4.law.cornell.edu/uscode/17/107.html