Masayesva for and on Behalf of Hopi Indian Tribe v. Hale, s. 94-17022

• Decision Date: 08 July 1997
• Docket Number: 95-15015 and 95-15029,94-17032,94-17031,Nos. 94-17022,s. 94-17022
• Citation: 118 F.3d 1371
• Parties: 47 Fed. R. Evid. Serv. 524, 97 Cal. Daily Op. Serv. 5385, 97 Daily Journal D.A.R. 8731 Vernon MASAYESVA, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, for and on Behalf of the HOPI INDIAN TRIBE, Plaintiff-Appellee, v. Albert HALE, President of the Navajo Nation; Navajo Nation, Defendants-Appellants. Ferrell SECAKUKU, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, Plaintiff-Appellant-Cross-Appellee, v. Albert HALE, President of the Navajo Nation; Navajo Nation; United States of America, Defendants-Appellees-Cross-Appellants. Ferrell SECAKUKU, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, Plaintiff-Appellee-Cross-Appellant, v. Albert HALE, President of the Navajo Nation; Navajo Nation; United States of America, Defendants-Appellants-Cross-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1371

118 F.3d 1371

47 Fed. R. Evid. Serv. 524, 97 Cal. Daily Op.

Serv. 5385,

97 Daily Journal D.A.R. 8731

Vernon MASAYESVA, Chairman of the Hopi Tribal Council of the

Hopi Indian Tribe, for and on Behalf of the HOPI

INDIAN TRIBE, Plaintiff-Appellee, v. Albert HALE, President of the Navajo Nation; Navajo Nation,

Defendants-Appellants.

Ferrell SECAKUKU, Chairman of the Hopi Tribal Council of the

Hopi Indian Tribe, Plaintiff-Appellant-Cross-Appellee, v. Albert HALE, President of the Navajo Nation; Navajo Nation;

United States of America,

Defendants-Appellees-Cross-Appellants.

Ferrell SECAKUKU, Chairman of the Hopi Tribal Council of the

Hopi Indian Tribe, Plaintiff-Appellee-Cross-Appellant, v. Albert HALE, President of the Navajo Nation; Navajo Nation;

United States of America,

Defendants-Appellants-Cross-Appellees.

Nos. 94-17022, 94-17031, 94-17032, 95-15015 and 95-15029.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 17, 1995.

Decided July 8, 1997.

Lois J. Schiffer and Katherine W. Hazard, Assistant Attorneys General, United States Department of Justice, Washington, DC, for intervenor United States.

James M. Balogh and Dale S. Zeitlin, Zeitlin & Balogh, Phoenix, AZ, for appellees Hale and Navajo Tribe.

Tim Atkeson, Arnold & Porter, Denver, CO, for appellant Hopi Tribe.

Appeals from the United States District Court for the District of Arizona; Earl H. Carroll, District Judge, Presiding. D.C. Nos. CV-76-00936-EHC, CV-58-00579-EHC.

Before: SCHROEDER, FLETCHER and RYMER, Circuit Judges.

Opinion by Judge SCHROEDER; Partial Concurrence and Partial Dissent by Judge FLETCHER.

SCHROEDER, Circuit Judge:

I. INTRODUCTION

These appeals are part of the long running and emotion scarring controversy between the Navajo Nation and the Hopi Tribe, in which the legislative, executive and judicial branches of the United States have all figured prominently. The dispute has centered on the ownership, control and use of nearly 2 million acres of the Native American reservation land occupying the northeast portion of Arizona and neighboring portions of Utah and New Mexico.

These particular cases arise out of specific remedial provisions of the Navajo-Hopi Settlement Act of 1974, 25 U.S.C. § 640d, et seq. (1980) (the "Settlement Act"). The Settlement Act allows partition of reservation land that the courts had declared jointly shared by both tribes, but which had been used for grazing exclusively, and excessively, by the Navajo. The Navajo overgrazing was fostered, in large part, by the Department of Interior, which refused to grant the Hopi grazing permits while simultaneously providing the Navajo with permits for more grazing than the land could reasonably support. Hamilton v. MacDonald, 503 F.2d 1138, 1146 n. 10 (9th Cir.1974) (explicitly affirming the district court's factual findings regarding the government's responsibility for Navajo overgrazing). In the 1974 Act, Congress expressly authorized litigation between the Hopi and the Navajo for enumerated damages; Congress intended for money to leaven the land-related inequalities between the Hopi and the Navajo.

The background of this litigation has been recited in nearly 35 years of court decisions and in numerous books and periodicals. ¹ We provide only a summary here.

In 1882, President Chester Arthur by executive order created a 2.5 million acre reservation for the Hopi and "such other Indians as the Secretary of Interior saw fit to settle thereon." Exec. Order of Dec. 16, 1882, reprinted in, Healing v. Jones, 210 F.Supp. 125, 129 n. 1 (D.Ariz.1962), aff'd, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963). Under this executive order, the Hopi Tribe enjoyed the right to use and occupy the entire reservation. By contrast, the Navajo who had already settled in the reservation did not gain any immediate rights to the land. Nevertheless, the Navajo continued to use and occupy parts of the 1882 reservation. By 1900, the Navajo population had increased to 1,826. Healing, 210 F.Supp. at 145. In 1920, it reached approximately 2,600, and by 1958, it exceeded 8,800. Id. Despite the Navajo's continued use of the reservation, their right to use the land during this period was unclear, and this caused an ongoing and bitter dispute.

In 1958, Congress authorized litigation to settle title to the 1882 reservation. Id. at 130. A three-judge district court thus examined the question in Healing and found that the Navajo had no right to use the land until 1931, when the Interior Secretary impliedly exercised his authority under the executive order to "settle" the Navajo on the reservation. Id. at 157. The Healing court further observed that all Navajo who immigrated to the reservation between 1931 and 1958 were also impliedly "settled" in the reservation. Id. at 169. Healing held that the Hopi occupied the area known as "land district 6" Unfortunately, the 1962 order did not resolve the dispute. Between 1962 and 1972, the federal government continued to grant grazing permits to the Navajo, while rejecting all Hopi applications. Hamilton, 503 F.2d at 1146 n. 10. At the same time, the Navajo intimidated the Hopi and mutilated their cattle. Id. Together, the federal government and the Navajo excluded the Hopi from what Healing had declared a "joint use area."

exclusively, but that the two Tribes held a joint, undivided and equal interest in the remainder, known as the Joint Use Area (JUA). Id. District 6 is 600,000 acres. The JUA is greater than 1.8 million acres.

The Hopi thus brought a supplemental action in which they obtained an order of compliance and a writ of assistance enforcing the Healing decision. Our decision affirming the order and the writ, Hamilton, 503 F.2d 1138, documents in greater detail the exclusion of the Hopi from the JUA. In Hamilton, we noted that although the permits enabled the Navajo only to eke out an existence, terrible and destructive overgrazing occurred nonetheless; the carrying capacity of the range was simply insufficient. Id. at 1145 (JUA is "an over-grazed, harsh and inhospitable area which yields little above a subsistence living").

The Hamilton order required the Navajo to, among other things, reduce its livestock and to allow the Hopi to share the land. Id. at 1142 n. 2. It also required the federal government to cancel all grazing permits and issue new ones, without giving either the Hopi or the Navajo permits for more than their half of the land's carrying capacity. Id. Additionally, the order required the government to adopt a plan to achieve the broad goals of the compliance order, including restoration of the range, within 90 days. Id. Both the government and the Navajo failed to do as ordered. In 1974, the Navajo were held in contempt of court. Sekaquaptewa v. MacDonald, No. Civ. 579 PCT (JAW) (D.Ariz. May 29, 1974), aff'd, 544 F.2d 396 (9th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977). At that time, the Navajo's livestock exceeded, by approximately seven times, the JUA's carrying capacity. Id. at 3-4.

Against this background, Congress in 1974 passed the Settlement Act, authorizing partition by court order in the event mediation failed, which it did. A court order of partition was entered, and after appeal and remand, see Sekaquaptewa v. MacDonald, 575 F.2d 239 (9th Cir.1978), was reconfirmed.

The Settlement Act itself called for partition to achieve as equal a division as was practicable, 25 U.S.C. § 640d-5(d), while at the same time expressly directing that population centers should not be divided, 25 U.S.C. § 640d-5(b). The legislation also called for measuring the value of the land, for purposes of division, as if the grazing capacity were restored. 25 U.S.C. § 640d-5(d). In an effort to adjust any imbalance that might result from an unequal division, and to compensate the Hopi for both past exclusion from grazing the land and damage done to the land by Navajo overgrazing, Congress authorized several actions for money damages. So that the Hopi and the Navajo could sue one another and join the United States as a party, Congress waived immunity for all three sovereigns. 25 U.S.C. § 640d-5.

In Hopi Tribe v. Navajo Tribe, 46 F.3d 908 (9th Cir.) (the "rent case"), cert. denied, --- U.S. ----, 116 S.Ct. 337, 133 L.Ed.2d 236 (1995), we affirmed a judgment awarding the Hopi rent, pursuant to § 640d-15(a) of the Settlement Act, for the post-partition presence of Navajo homesites on the Hopi half of the partitioned land. We also remanded the Hopi's award of rent for the post-partition (1979 to 1984) grazing of Navajo cattle and sheep on the Hopi half of the partitioned land, so that the district court could review the merits of the Navajo challenge to the award.

We now have three Settlement Act cases before us on appeal. We review first a judgment entered in favor of the Hopi, pursuant to § 640d-17(a)(2), for the "fair value of the grazing and agricultural use" by the Navajo of the Hopi's one-half interest in the JUA from 1962 to 1979; this is known as the "use case." The second appeal, known as the "owelty case", arises under § 640d-5(d), in which Congress authorized an action for the The Navajo appeal the judgment in the use case and the Navajo and the Hopi both appeal the judgments in the owelty and damages cases. We affirm the use case in its entirety, and in large part, we affirm the owelty and damages cases as well. We discuss each case separately.

difference in value between the land awarded to the Hopi Tribe (the HPL) and the land awarded to the Navajo Nation (the NPL). The district court ruled the division was roughly equal and entered judgment denying any relief. In the third appeal, we consider an action pursuant to § 640d-17(a)(3) by the Hopi against both the United States and the Navajo to recover damage to the JUA caused prior to partition (the "damage case"). In the damage case, the district court entered judgment against the Navajo but refused to hold the...