Manybeads v. US, Civ. No. 88-410.

• Decision Date: 20 October 1989
• Docket Number: Civ. No. 88-410.
• Citation: 730 F. Supp. 1515
• Parties: Jenny MANYBEADS, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — District of Arizona

730 F. Supp. 1515

Jenny MANYBEADS, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.

Civ. No. 88-410.

United States District Court, D. Arizona, Prescott Division.

October 20, 1989.

Lee Brooke Phillips, Matt Strassberg, Big Mountain Legal Office, Flagstaff, Ariz., Terry Gross, Rabinoitz, Boudin, Standard, Krinsky & Lieberman, New York City, Bruce Ellison, Rapid City, S.D., for plaintiffs.

Richard S. Alleman, U.S. Atty., Phoenix, Ariz., Steven Carroll, U.S. Dept. of Justice, Land & Natural Resources Div. Indian Resources Section, Washington D.C., for defendants.

OPINION AND ORDER DENYING PRELIMINARY INJUNCTION AND DISMISSING ACTION

CARROLL, District Judge.

Plaintiffs (47 in number) are Navajo Tribal members residing on that part of the Hopi Indian Reservation identified as Hopi Partitioned Lands (HPL) and subject to relocation from that reservation pursuant to the provisions of the Navajo-Hopi Land Settlement Act, 25 U.S.C. § 640d et seq., Pub.L. 93-531, Dec. 22, 1974, 88 Stat. 1712, and as subsequently amended.¹

Defendants are the United States of America, Donald P. Hodel, in his official capacity as Secretary of the Department of Interior, United States Department of the Interior, Ross O. Swimmer, in his official capacity as Assistant Secretary of the Department of the Interior, United States Bureau of Indian Affairs, Hawley Atkinson, in his official capacity as Chairman of the Navajo-Hopi Indian Relocation Commission and the Navajo-Hopi Indian Relocation Commission.

Plaintiffs assert seven reasons (claims) why they, and other Navajo Tribal members residing on the Hopi Reservation and with similar religious beliefs and practices, have the right for themselves and their heirs in perpetuity, to reside on the Hopi Reservation on what they consider their extensive customary use areas, with unlimited grazing privileges, the right to construct such buildings as they wish, and to utilize unlimited water claimed necessary to their needs:

First Claim — Violation of Right to Free Exercise of Religion;

Second Claim — Violation of the American Indian Religious Freedom Act;

Third Claim — Violation of Equal Protection;

Fourth Claim — Violation of Federal Trust Responsibility Fifth Claim — Violation of Right to Freedom of Religion under Customary International Law and the United Nations Charter;

Sixth Claim — Violation of International Prohibition Against Genocide;

Seventh Claim — Violation of Plaintiffs' Rights Under Article 73 of the United Nations Charter as a Non-Self-Governing People.

Plaintiffs seek a declaratory judgment establishing each of these claims, as well as injunctive relief:

Preliminarily and permanently enjoining defendants from relocating plaintiffs, from interfering with structures essential to plaintiffs' religious practices, from threatening or harassing plaintiffs, from disrupting plaintiffs' water supply, from interfering with plaintiffs' livestock and housing, from engaging in behavior or activities which coerce plaintiffs to leave their ancestral homelands, and from engaging in or authorizing programs or other actions which deprive plaintiffs of the livestock and housing necessary to sustain themselves on their ancestral homelands.

Defendants filed a Motion to Dismiss which has been fully briefed and is pending decision by this Court.

Plaintiffs' Application for a preliminary injunction was heard October 4, 5, 6 and 7, 1988. The evidence presented in Attakai v. United States, CIV 88-964 PCT EHC, has been incorporated in this proceeding. The parties have each filed proposed findings of fact and conclusions of law and post hearing briefs.

The motions to dismiss and for a preliminary injunction involve common issues and accordingly this Order will address both motions. For the reasons set forth in this Order, the Motion for a Preliminary Injunction will be denied and defendants' Motion to Dismiss will be granted.

1. Plaintiffs Have No First Amendment Claims

The Free Exercise Clause of the First Amendment is the putative basis for plaintiffs' claims that the Navajo-Hopi Relocation Act is unconstitutional and that they have the right to remain in perpetuity on property held in trust by the United States for the exclusive use of the Hopi Tribe. If there was ever any basis for asserting such contentions (see Bowen v. Roy, 476 U.S. 693, 106 S.Ct. 2147, 90 L.Ed.2d 735 (1986)) they were put to rest by the United States Supreme Court in Lyng v. Northwest Indian Cemetery Protective Ass'n., 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). Lyng provides direct and dispositive answers to the plaintiffs' First Amendment claims. The holdings of Lyng are the law of this country — whether or not personally acceptable to plaintiffs or those who espouse their cause.

The principal issue in Lyng was whether the Free Exercise Clause prevented the government from constructing a road through a portion of a National Park "that has traditionally been used for religious purposes by members of three American Indian Tribes." In concluding that the Free Exercise Clause neither restrained the government in such instance nor required it to demonstrate a compelling need to use its property for building a road in the manner contemplated, the Court held, in substance:

A court cannot weigh the adverse affects of a program on one religion and compare them with the adverse effects of some other program on a different religion;

The fact that a person's ability to practice their religion will be virtually destroyed by a governmental program does not allow them to impose a religious servitude on the property of the government much less property which the government holds in trust for another sovereign Indian tribe;

The nature of the religious rights claimed cannot create a de facto beneficial ownership of public (or private) property, in order to practice ones religion.

However much plaintiffs, or those with similar interests may desire to permanently reside where they now do, i.e., on lands partitioned to the Hopi Tribe, that option is not available to them.² To hold otherwise would afford plaintiffs rights, benefits and privileges not enjoyed by other citizens. The rights claimed by plaintiffs in Hopi lands are in total derogation of Hopi rights in and to their reservation.

The Navajo-Hopi Land Settlement Act and the many cases decided with respect to that Act are not unconstitutional. Neither the Act itself nor court cases construing the Act prohibit the free exercise of religion by any of the plaintiffs. As held in Lyng:

Even if we assume that we should accept the Ninth Circuit's prediction, according to which the G-O road will `virtually destroy the Indians' ability to practice their religion,' North West Indian Cemetery Protective Association v. Peterson 795 F.2d 688 at 693 (9th Cir. 1986) (opinion below), the Constitution simply does not provide a principle that could justify upholding respondents' legal claims. However much we might wish that it were otherwise, government simply could not operate if it were required to satisfy every citizen's religious needs and desires. A broad range of government activities — from social welfare programs to foreign aid to conservation projects — will always be considered essential to the spiritual wellbeing of some citizens, often on the basis of sincerely held religious beliefs. Others will find the very same activities deeply offensive, and perhaps incompatible with their own search for spiritual fulfillment and with the tenets of their religion. The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion. The Constitution does not, and courts cannot, offer to reconcile the various competing demands on government, many of them rooted in sincere religious belief, that inevitably arise in so diverse a society as ours. That task, to the extent it is feasible, is for the legislatures and other institutions.

108 S.Ct. at 1326.

As referenced in footnote 2, Congress provided in 25 U.S.C. § 640d-5(c) that:

In any division of the surface rights to the joint use area, reasonable provision shall be made for the use of and right of access to identified religious shrines for the members of each tribe on the reservation of the other tribe when such use and access are for religious purposes.

It is significant that neither tribe has claimed that this requirement was ignored in the partition process. Following partition, each tribe filed (under seal) a designation of their religious shrines. The Court has not been requested by either tribe to enter any further order directed to this statutory provision.

Section 640d-20 addresses these same religious concerns following partition:

Notwithstanding anything contained in this subchapter to the contrary, the Secretary shall make reasonable provision for the use of and right of access to identified religious shrines for the members of each tribe on the reservation of the other tribe where such use and access are for religious purposes.

Again, these rights may not satisfy plaintiffs — but, suffice it to say — they far exceed rights of access afforded to any other religious group in this country. These rights are enforceable; however, they do not divest the government (or a property owner) "of its right to use what is, after all, its land." Lyng, 108 S.Ct. at 1327.

2. There is No Violation of the American Indian Religious Freedom Act (AIRFA)

Lyng also addressed and rejected contentions similar to those asserted by plaintiffs in their second claim for relief, i.e., that their interpretation of the First Amendment was enacted into statutory law. The Court noted: "Nowhere in the law is there so much as a hint of any intent to create a cause of action or any judicially enforceable individual rights." Id., at 1378.

3. Equal Protection Claim is Meritless

Plaintiffs claim that their rights have been violated because in...