HOPI TRIBE EXPRESSES CONCERN ABOUT LIFTING BENNETT FREEZE;
RESTRICTIONS ENDED BY ORDER OF U.S. DISTRICT COURT
PHOENIX, Sept. 28 /PRNewswire/ -- Hopi Chairman Vernon Masayesva called the U.S. District Court's lifting of the "Bennett Freeze," a statute restricting improvements on lands contested by both the Hopi and Navajo Tribes, "excessive, unfortunate and premature."
Ordered in 1966 by the Commissioner of Indian Affairs Robert Bennett so that neither tribe would gain an unfair advantage over the other until a long-contested land dispute could be resolved, the Bennett Freeze applied to the western part of a 7-million acre 1934 Reservation created by Congress for the benefit of the Navajo and the Hopi. In 1980, Congress made the freeze a federal statute in an effort to prevent Navajos from entrenching themselves in an area likely to be awarded to the Hopi through litigation.
Over the years, the freeze has been widely violated, especially before the court enjoined the Navajo Tribe in 1988. Many of the Navajo residences were illegally constructed since 1966 on the 1934 Reservation.
"In some ways, the freeze turned out to be a cruel joke, both for Hopis whose rights it was intended to protect and for law-abiding Navajos who may have been impacted by it," the Hopi chairman noted. "Those Navajos who violated the freeze have benefited from their violations. The Hopi, who believed the freeze would protect their right to recover land, find that there was no real protection at all."
The court ordered the freeze lifted completely as part of its judgment in the 1934 land case. If the order stands, Hopi leaders expect that the Navajo Tribe will take advantage by moving quickly to increase development and Navajo residency in the "unfrozen" area. If so, and if the appeals process takes two years or more to complete, lifting the freeze may make it impossible for the Hopi to recover tribal land even if the tribe is successful in reversing Judge Carroll's decision in the 1934 Reservation case on appeal. That decision awarded the Hopis only 60,500 acres, a tiny fraction of the area claimed by the Hopis in the case.
Based on a review of the district court's ruling on the division of land, Hopi leaders believe that the court of appeals will reconsider the lower court's ruling and correct some of its erroneous conclusions. To protect Hopi rights in the meanwhile, the tribe will seek a stay to keep the freeze in effect over the area to be contested by the Hopi Tribe on appeal. Either the district court or the court of appeals could issue such a stay.
"To allow our legal rights once again to be made meaningless by Navajo expansion would be a travesty of justice," Masayesva said. "We are sympathetic to the hardships imposed on individual Navajos and Hopis by the freeze. In most cases, the Hopi tribe has given its consent for new construction where genuine hardship is shown and where an application for consent has been submitted. It would be completely inappropriate to open the floodgates for new construction when the area subject to partition may be greatly expanded by the court of appeals' decision.
"This case has gone on far too long, and we are not pleased by the prospect of continuing either the litigation or the freeze. But this issue is too important to the future of the Hopi Tribe to lift these restrictions prematurely. While an appeal is pending, the division of land is not final, and the area claimed by the Hopi is still 'in litigation,' as the statute says. The disputed area must remain under some restrictions until we have had a full opportunity to vindicate our rights," said Masayesva.
Bennett Freeze Fact Sheet
1934 Congress passes 1934 Arizona Boundary Bill, reserving as a
permanent Indian reservation some 7.5 million acres of
land surrounding the 1882 "Hopi" Reservation, "for the
benefit of the Navajo and such other Indians as may be
located thereon." 48 Stat. 960.
1958 Congress passes legislation authorizing court to decide
Navajo and Hopi rights in 1882 Reservation.
1962 Court issues decision in Healing vs. Jones: Hopi own
District 6; Navajo and Hopi jointly own remaining 1882
Reservation area or "JUA."
1965 Arizona Public Service negotiates with Navajo Tribe to
acquire a powerline right-of-way through 1934 Reservation
near Moenkopi; Hopi object to BIA, stating that Hopi
Tribe has rights and interests in 1934 Reservation land.
1966 At request of Commissioner of Indian Affairs ("CIA")
Robert Bennett, interior solicitor's office issues legal
opinion stating Hopi have undefined legal interest in 1934
Reservation based on grant in 1934 act.
1966 Bennett issues "freeze" order, which: Recites
solicitor's opinion; states that 1934 Reservation must be
administered in a way which respects undefined Hopi
interest; says that any transaction affecting property
rights in Western Navajo Reservation (west of 1882
Reservation) must have consent of both tribes; any funds
received for property interest (leases, rights-of-way,
etc.) must be placed in escrow account until dispute is
resolved; and tribes should negotiate a solution under
Bennett's mediation. "Frozen" area is about 2 million
1967- Parties Negotiate. Final Hopi offer is about 800,000
1969 acres; final Navajo offer is about 35,000 acres. Various
modifications of freeze order occur (public works
exception, changes in size of area, etc.).
1969 Bennett proposes compromise giving Hopis about 108,000
acres of land around Moenkopi.
1970 Acting CIA Loesch endorses Bennett Proposal with minor
modification. Negotiations abandoned; BIA concludes
Congress will have to resolve dispute. Public works
1972 Freeze order modified to "unfreeze" Administrative Units
around Tuba City and Moenkopi (except new water wells).
1976 Congress passes 1974 Settlement Act. Portion of bill
which would have given Hopi about 250,000 acres ("Steiger
Bill" area) in 1934 Reservation is defeated at last
moment. Act as passed authorizes partition and relocation
in 1882 JUA, authorizes lawsuit over 1934 area. Act does
not address freeze issues. 1934 case filed by Hopi Tribe.
1976- Freeze order modified to permit BIA approval in cases of
1980 "substantial necessity."
1980 Office of Hopi Lands begins to monitor and post illegal
construction and maintain records of violations.
1980- Scores of freeze violations occur. BIA denies
1988 responsibility for enforcement of freeze, unless it
participates in construction project.
1988 pe," to build and replace housing in freeze area and in
1988 United States moves to enjoin, and federal court does
enjoin, Navajo Tribe from engaging in any new construction
in the freeze area without Hopi consent. Court
establishes procedures for applications and consent.
1988 Two months after court order, Congress amends freeze
statute to allow for appeals to secretary of interior, who
can approve construction necessary for "health and
safety," but cannot approve "new housing construction."
Parties stipulate to amend court order to conform to
1989 Trial occurs in first phase of 1934 case. Before trial,
Navajos move court to order that freeze does not apply to
"excluded lands" within freeze boundary. (Includes
allotments, "fee" lands purchased by Navajo Tribe before
1934, etc.) Court defers decision on excluded lands.
1988- Navajo Tribe submits numerous applications for replacement
1992 housing and repairs. Hopi Tribe, for the most part,
approves repairs and renovation and replacement of same-
size, same-type construction for dilapidated houses.
Secretary of interior initially supports Hopi position,
later begins to approve larger, improved replacements.
1992 When court indicates it will soon rule on first phase of
1934 case, Navajos renew motions to lift freeze on
excluded lands. Court rules on excluded lands, but
declines to lift freeze on excluded lands until trial of
1992 Trial of second, partition phase of 1934 case. Judge
generally indicates he will lift freeze on some portions
of area as part of judgment in case, at least outside area
of Hopi interest. Navajos urge freeze be lifted on all
lands not awarded to Hopi, despite probable appeal.
1992 Navajos renew publicity campaign on hardships of freeze on
1992 Court issues final judgment in 1934 case awarding 60,500
acres of land near Moenkopi to Hopis and lifting freeze
completely as part of its judgment in the 1934 land case.
/CONTACT: Loris Minkler, The Hopi Tribe, 602-734-2441, ext. 100; or Alf MacDonald or David Warren of Arnold & Porter, 303-863-1000, for The Hopi Tribe/ CO: The Hopi Tribe ST: Arizona IN: SU:
DC -- DC031 -- 4137 09/28/92 18:05 EDT