Attakai v. US
| Decision Date | 28 February 1990 |
| Docket Number | No. CIV 88-964 PCT EHC.,CIV 88-964 PCT EHC. |
| Parties | Roger ATTAKAI, et al., Plaintiffs, v. UNITED STATES, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
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Lee Brooke Phillips, Big Mountain Legal Office, Flagstaff, Ariz., for plaintiffs.
Steven Carroll, Atty., Dept. of Justice, Land & Natural Resources Div., Indian Resources Section, Washington, D.C., for defendants.
Defendants, officials of the United States Department of the Interior (DOI) and the Bureau of Indian Affairs (BIA), are involved in construction of fences and livestock watering facilities on portions of the Hopi Indian Reservation as part of a range restoration and management program. Plaintiffs, individual members of the Navajo Tribe, filed this action on behalf of a class of all members of the Navajo Tribe who practice the traditional Navajo religion, seeking to enjoin defendants from continuing current and proposed fencing and construction projects on the Hopi Reservation. The case has not been certified as a class action.
Plaintiffs, who continue to reside upon or use the land in the vicinity of the projects, allege that the construction activities are interfering with their ability to practice their religion, in violation of the Free Exercise Clause of the First Amendment and the American Indian Religious Freedom Act, and are irreparably disturbing and destroying sites and objects of religious, historical, and archaeological significance in violation of the National Historic Preservation Act, the Historic and Archaeological Data Preservation Act, the Archaeological Resources Protection Act, the National Environmental Policy Act and the Administrative Procedure Act.
This action arises out of the long-standing dispute between the Hopi and Navajo Tribes over title and interest in reservation lands in northeastern Arizona. The construction activities involved in this action affect a portion of the 1882 Executive Order Reservation established for use by the Hopi Indians and "such other Indians as the Secretary of the Interior may see fit to settle thereon," which became a Joint Use Area (JUA) of the Navajo and Hopi Tribes as a result of the decision in Healing v. Jones, 210 F.Supp. 125 (D.Ariz.1962), affirmed per curiam, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1962). The specific portions of the JUA involved in this action were subsequently partitioned to the Hopi Tribe on April 18, 1979 pursuant to provisions of the Navajo-Hopi Land Settlement Act, Pub.L. 93-531, 25 U.S.C. § 640d et seq. See Sekaquaptewa v. MacDonald, 575 F.2d 239 (9th Cir.1978); Sekaquaptewa v. MacDonald, 626 F.2d 113 (9th Cir.1980).
The Settlement Act, as amended by the Navajo and Hopi Indian Relocation Amendments Act of 1980, Pub.L. 96-305, provides for the relocation of members of one tribe residing on lands partitioned to the other tribe. The plaintiffs in this action continue to use portions of the land partitioned to the Hopi Tribe (Hopi Partitioned Lands or HPL) near their residences. Most of the plaintiffs continue to reside on the HPL in the vicinity of the construction projects and are subject to relocation from the HPL.
The construction activities of which plaintiffs complain are part of an ongoing range restoration and management program throughout the HPL required by Court Orders and the Settlement Act.1 The particular construction projects which are the subject of this action involve separate projects in two different parts of the HPL. The first involves the construction of fences to restrict livestock movements in Range Unit 562, in the vicinity of Star Mountain. This fencing project includes three fence lines, one of which stops at the base of Star Mountain, one which continues about halfway up the mountain, and a third which would rise to near the top of the mountain. The second project involves the construction of a pipeline and earthen stock tank to provide a watering facility for livestock in Range Unit 257. Both projects are funded by defendants, but have been approved by the Hopi Tribe and are actually being accomplished by the Hopi Tribe through contracts with defendants pursuant to the Indian Self Determination Act.
At the hearing on the Motion for a Preliminary Injunction the Court recommended that the defendants provide seven days notice of proposed projects on the HPL to the Navajo Tribe and plaintiffs to reduce tensions and the possibilities for conflict in the area while this matter was being considered. The defendants agreed to provide such notice.
Defendants have filed a motion to dismiss the complaint on various procedural grounds and for failure to state claims.
The Court has reviewed the briefs relating to the Application for a Preliminary Injunction and the Motion to Dismiss, the evidence presented at the hearing, and documents incorporated into this action from a related action before this Court, Manybeads v. United States, 730 F.Supp. 1515 (D.Ariz.) (Order of Dismissal filed October 20, 1989). This order will address plaintiffs' Motion for a Preliminary Injunction and the defendants' Motion to Dismiss.
In their Motion to Dismiss, defendants contend that plaintiffs, as individual members of the Navajo Tribe, are not the proper parties to assert the claims in the complaint, because Congress intended in both the 1958 Act2 and Settlement Act to foreclose litigation by individual members of the tribes concerning the land dispute, having determined that the interests involved were tribal and should be represented by the Chairmen of the respective tribal councils.
This issue as to the standing of individuals to assert claims related to the inter-tribal land dispute has been addressed in various circumstances, (including a Constitutional Due Process claim), by both the District Court and Ninth Circuit Court of Appeals on several occasions. See United States v. Kabinto, 456 F.2d 1087 (9th Cir. 1972); Sekaquaptewa v. MacDonald, 544 F.2d 396 (9th Cir.1976); Sekaquaptewa v. MacDonald, 591 F.2d 1289 (9th Cir.1979); Sidney v. MacDonald, 536 F.Supp. 420 (D.Ariz.1982), aff'd Sidney v. Zah, 718 F.2d 1453 (9th Cir.1983). The clear conclusion of these cases is that Congress intended to foreclose participation by individuals in the inter-tribal land dispute, in order to prevent duplicative and protracted litigation and to provide a more expeditious and fair resolution of the dispute.
Although the prior cases have all involved claims principally related to land interests, the cases and legislative history indicate that the bar to private actions in the statute was intended to be broad, covering actions related to the Navajo—Hopi dispute and tending to delay its resolution. Accordingly, this Court has found that individual Navajos do not have standing to challenge both the denial of grazing permits associated with the conservation program, and procedures associated with the Relocation Program.3 However, individuals do have standing to bring suit concerning decisions affecting their own eligibility for relocation benefits under the Act. See Walker v. Navajo-Hopi Indian Relocation Commission, 728 F.2d 1276 (9th Cir. 1984), cert. denied, 469 U.S. 918, 105 S.Ct. 298, 83 L.Ed.2d 233 (1984); Bedoni v. Navajo-Hopi Indian Relocation Commission, 878 F.2d 1119, 1120 (9th Cir.1989); Begay v. United States, 865 F.2d 230 (Fed. Cir.1988).
The activities which plaintiffs seek to enjoin in this case are being carried out pursuant to section 18(a) of the Settlement Act and relate to restoration of lands partitioned to the Hopi Tribe which were overgrazed in the past by Navajo herds. Thus, defendants contend that plaintiffs lack standing to assert their claims. Plaintiffs argue that while the standing limitation may be valid as directed at rights derivative of tribal membership, such as property rights, it cannot bar individual causes of action for abridgement of fundamental personal rights and liberties.
As to the claims based on violations of federal statutes, the government has not specifically argued that the individual plaintiffs in this action do not have standing to bring an action under these statutes. The interests that individuals may have in the preservation of historical, archaeological and cultural artifacts are not necessarily the same as those of the Tribe in all instances, and such claims are not sufficiently related to the inter-tribal land dispute that the standing limitation is applicable.
As to the Free Exercise claims, the standing issue is more complex. In these proceedings the parties have drawn a distinction between "tribal" religious sites, those which are generally identified and more widely known and which have significance to the tribe, (i.e., Star Mountain), "regional" (local) sites, those which are known and have significance to persons residing in a particular area, (i.e., a special ceremonial site), and "individual" sites, those which are known and therefore have significance only to individual members of the tribe, (i.e., a burial site of an ancestor). As to each of these types of sites, the plaintiffs' claims encompass allegations that the free exercise of plaintiffs' religion is infringed because the construction is destroying the particular sites, and denying them access to the sites.
As to the individual sites, the plaintiffs' claims are based on alleged violations of their individual constitutional rights. Further, these claims, relating to sites with significance only to individual members of the Tribe, cannot be considered "tribal" interests, as, for example, property or grazing rights, such that these interests can be properly represented by the respective tribal Chairmen. Thus, the standing limitation in the Settlement ...
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