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Masayesva v. Zah

 

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In 1882, by Executive Order, the President of the United States set aside land in northeastern Arizona for the Hopi Tribe. In 1934, Congress established a Navajo reservation in the same area but it did not take away any Hopi land. Congress passed the Navajo-Hopi Settlement Act of 1974 to allow the Navajos and Hopi to sue each other to settle land disputes over land in the 1934 reservation.

In 1980, the Ninth Circuit held the Hopi held an exclusive right to land on which they were located in 1934.[1] The court remanded the case to determine on which lands Hopi were located in 1934, with the recognition that some grazing land may have been used by both tribes and might need to be partitioned by the court. The district court held a bifurcated trial and the Ninth Circuit Court of Appeals reviewed three decisions involving land partitioning and a development freeze,[2] a determination of where the Hopi were located in 1934,[3] and a determination of whether land acquired from the railroads was subject to Hopi claims.[4]

The district court had determined the term “located” in the 1934 Act meant a step beyond mere possession or occupancy of the type sometimes used to establish aboriginal title. While a continual physical presence is not necessary, the presence must be substantial and intensive. The land does not have to be used for subsistence purposes; however, nontraditional, sporadic use by a few individuals is not sufficient. Substantial seasonal use would be acceptable because it would be necessary in a harsh environment and consistent with Indian patterns of use of land. The Hopi argued this standard was erroneous as a matter of law because it requires a more intensive use and occupation of the land than in aboriginal title cases.

The Ninth Circuit reasoned that the term “located” is not a term of art when used in the 1934 Act, and that the district court’s interpretation is consistent with the ordinary meaning of the word. The Hopi’s arguments were rejected by the court because they had relied on a line of cases that litigated aboriginal title, not, as here, title conferred under the 1934 Act. The district court had based its decision on the finding that the Hopi had used the disputed areas less than once per year for traditional activities. Since the Ninth Circuit found the district court’s findings were not clearly erroneous, it affirmed the decision.

The Hopi further argued the district court failed to correctly apply its standard to areas used for religious purposes. The district court rejected the Hopi claim to religious areas because the Settlement Act entitles tribes to access to religious areas without giving them a property interest. The Ninth Circuit rejected the reasoning of the district court because, the court reasoned, the Settlement Act, enacted forty years after the 1934 Act, does not have any bearing on whether the Hopi were located at their shrine in 1934. This is a property interest created by the 1934 Act, not by religious use. Although the religious use only occurred once per year and involved a limited number of people, that may be a substantial use. The Ninth Circuit reversed and remanded for the district court to determine if locations were used regularly and exclusively for religious observances. The Ninth Circuit suggested the burden is on the Hopi to show some physical evidence of a shrine or regular use of a specific and identifiable area.

The Hopi claimed the district court’s finding of 1934 grazing locations was clearly erroneous. This was a purely factual determination by the district court. The Ninth Circuit reviewed it for clear error and found the district court did not err in finding some Hopi testimony implausible or contradictory.

The district court partitioned the jointly held land by giving three-quarters to the Navajos and one-quarter to the Hopi. The Hopi contend the land should be partitioned equally. However, the Ninth Circuit reasoned, the statutory term “fairness and equity” does not necessarily mean equal division, and the term is necessarily discretionary. The district court used five factors to determine the division: 1) avoiding relocation of individuals; 2) avoiding disruption of grazing areas; 3) providing fifty percent of joint use acreage to the Hopi Tribe; 4) fairly and equitably distributing water sources; and 5) ensuring future administration of areas is feasible. Because the district court has broad discretion, the Ninth Circuit held the use of these factors did not equal an abuse of discretion and affirmed.

The district court granted summary judgment in favor of the Navajos regarding lands obtained from the Santa Fe Railroad. The facts show the Navajos and the United States intended this land should be held in trust for the Navajo Tribe. Therefore, it is not part of the unappropriated lands subject to the 1934 Act. The Ninth Circuit affirmed.

In 1934, the government managed a farm and pasture at the TubaCityBoarding School attended by Navajo and Hopi children. The Hopi claimed they were located on the land because their members attended the school and worked as employees on the land. The Ninth Circuit affirmed that these are not the interests Congress intended to protect by passing the 1934 Act.

The “Bennett Freeze” was developed in 1966 by Commissioner of Indian affairs Robert Bennett. Codified by Congress in 1974, the “Bennett Freeze” provides that development of land involved in litigation shall only occur with the written consent of both tribes. The district court lifted the “Bennett Freeze” of lands involved in this litigation. The Ninth Circuit held the district court did not have the authority to do this because the Hopi still held the right to appeal and the land was still involved in litigation. The Ninth Circuit therefore directed the order lifting the freeze to be vacated.


[1]Sekaquaptewa v. MacDonald, 619 F.2d 801 (9th Cir.), cert. denied, 449 U.S. 1010 (1980).

[2]Masayesva v. Zah, 816 F. Supp. 1387 (D. Ariz. 1992), aff’d in part, rev’d in part, 65 F.3d 1445 (9th Cir. 1995), cert. denied, 116 S. Ct. 1569 (1996).

[3]Masayesva v. Zah, 793 F. Supp. 1495 (D. Ariz. 1992), aff’d in part, rev’d in part, 65 F.3d 1445 (9th Cir. 1995), cert. denied, 116 S. Ct. 1569 (1996).

[4]Masayesva v. Zah, 792 F. Supp. 1155 (D. Ariz. 1992), aff’d, 65 F.3d 1445 (9th Cir. 1995), cert. denied, 116 S. Ct. 1569 (1996).

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