Masayesva v. Zah

• Decision Date: 05 December 1995
• Docket Number: No. 93-15109,93-15109
• Citation: 65 F.3d 1445
• Parties: 95 Cal. Daily Op. Serv. 7157, 95 Daily Journal D.A.R. 12,233 Vernon MASAYESVA, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, for and on behalf of the Hopi Indian Tribe; Plaintiff-Appellant, v. Peterson ZAH, Chairman of the Navajo Tribal Council of the Navajo Indian Tribe, for and on behalf of the Navajo Indian Tribe, Defendant-Appellee. Evelyn James, et al., Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1445

65 F.3d 1445

95 Cal. Daily Op. Serv. 7157, 95 Daily Journal

D.A.R. 12,233

Vernon MASAYESVA, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, for and on behalf of the Hopi Indian Tribe; Plaintiff-Appellant, v. Peterson ZAH, Chairman of the Navajo Tribal Council of the Navajo Indian Tribe, for and on behalf of the Navajo Indian Tribe, Defendant-Appellee Evelyn James, et al., Intervenors.

No. 93-15109.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 9, 1995.

Decided Sept. 11, 1995.

As Amended on Denial of Rehearing and Rehearing En Banc Dec.

5, 1995.

James E. Scarboro, Arnold & Porter, Denver, CO, for plaintiff-appellant.

Terry E. Fenzl, Brown & Bain, Phoenix, AZ, for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before: CHOY, POOLE and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

We affirm in most but not all respects the district court decision dividing land between the Hopi and Navajo tribes. The issues arise from application of a statute Congress passed to deal specifically with this dispute.

I. Litigation History.

For centuries, the Hopi and Navajo peoples have disagreed on their tribes' respective rights to lands in northeastern Arizona. The dispute has been the subject of extensive litigation and legislation. See, e.g., Hopi Tribe v. Navajo Tribe, 46 F.3d 908 (9th Cir.1995), citing Healing v. Jones, 210 F.Supp. 125, 129 (D.Ariz.1962), aff'd, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963) (per curiam). After a district court decision in 1978, Sekaquaptewa v. MacDonald, 448 F.Supp. 1183 (D.Ariz.1978), we remanded for additional findings. Sekaquaptewa v. MacDonald, 619 F.2d 801 (9th Cir.1980). The judgment we review now is based on three separate decisions: Masayesva v. Zah, 816 F.Supp. 1387 (D.Ariz.1992) (partitioning land and lifting development freeze); Masayesva v. Zah, 793 F.Supp. 1495 (D.Ariz.1992) (deciding question of where Hopis were located in 1934); Masayesva v. Zah, 792 F.Supp. 1155 (D.Ariz.1992) (holding land acquired from railroads not subject to Hopi claims). ¹

On December 16, 1882, President Chester Arthur by executive order set aside land in northeastern Arizona "for the use and occupancy of the Moqui [Hopi] and such other Indians as the Secretary of the Interior may see fit to settle thereon." Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 911 (9th Cir.1995). The Hopi 1882 reservation has been the subject of much litigation between the Navajo and Hopi tribes. See, e.g., id.; Sekaquaptewa v. MacDonald, 575 F.2d 239 (9th Cir.1978); Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir.1974); Healing v. Jones, 210 F.Supp. 125 (D.Ariz.1962); Healing v. Jones, 174 F.Supp. 211 (D.Ariz.1959).

A half century later, Congress established a much larger Navajo reservation. Act of June 14, 1934, 48 Stat. 960 (the "1934 Act"). This reservation was not only for the Navajo people, but also for "such other Indians as may already be located thereon," and it did not take away any of the Hopi reservation created in 1882:

Be it enacted ... [t]hat the exterior boundaries of the Navajo Indian Reservation, in Arizona, be, and they are hereby, defined as follows.... All vacant, unreserved, and unappropriated public lands ... are hereby permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as may already be located thereon; however, nothing herein contained shall affect the existing status of the Moqui (Hopi) Indian Reservation created by Executive order of December 16, 1882....

In 1974, almost a half century after creation of the Navajo reservation, and almost a century after creation of the Hopi reservation, Congress passed a law enabling the Navajo and Hopi tribes to sue each other as a means of settling their continuing dispute over which tribe was entitled to which lands in the 1934 reservation. Each tribe was authorized to sue the other in district court "for the purpose of determining the rights and interests of the tribes in and to such lands and quieting title thereto in the tribes." 25 U.S.C. Sec. 640d-7(a). The Hopis commenced the case at bar in accord with the Congressional authorization.

We addressed the question "[w]hat property interests are conferred by the phrase [in the 1934 Act] 'for the benefit of the Navajo and such other Indians as may already be located thereon?' " in our earlier decision in this case. Sekaquaptewa, 619 F.2d at 805. The Hopis had argued that the phrase gave them a half interest in the entire Navajo reservation, because they were "such other Indians as may already be located thereon," and the reservation was conferred for the benefit of the Navajo and "such other Indians...." The district court had held that the Hopis were entitled to interests only in the lands upon which they were located in 1934, and on those lands, they were entitled only to an undivided half interest with the Navajos, not an exclusive interest.

We rejected the interpretation that the statutory phrase conferred joint interests, either in Hopi-occupied land only or in the entire 1934 reservation. We held that it conferred an exclusive interest in the Hopis, but only to the lands they occupied in 1934. We concluded that "[t]he purposes, history, and language of the 1934 Act show an intent to withdraw all reservation land for the Navajos except for pockets occupied by the Hopis.... [T]his is the meaning of the 'such other Indians as may already be located thereon' provision." Id. at 807. We rejected the district court's decision that "located thereon" created only a half interest in the Hopi-occupied areas of the Navajo reservation. We held that the Hopis were to take such "pockets" exclusively of the Navajos.

[L]egislative intent is clear enough to enable us to identify Hopi interests by areas settled. Navajo interests are identifiable as the residue. Congress recognized Hopi concern over the 1882 reservation and their villages, shrines, and grazing areas outside the 1882 reservation. The "such other Indians" provision was explained to the Hopis as protecting their rights to areas occupied outside the 1882 reservation.... We therefore reverse the [district court's] judgment insofar as it limits Hopi interests to an undivided one-half interest in lands they exclusively possessed, occupied, or used in 1934. Judgment should be entered declaring Hopi interests in those lands to be exclusive.

Id. at 808. We then remanded the case with these instructions:

We remand to the district court to determine what land the Hopis "possessed, occupied, or used" in 1934. In doing so, we acknowledge the possibility that some reservation land, grazing land for instance, may have been used by both tribes in 1934. Even in villages it may not be possible for the court to conclude that the Hopis "possessed, occupied, or used" such land exclusively. In that event it may be proper on remand for the district court to declare title to be joint or undivided, subject to partition. We reverse only with respect to the district court's holding that Hopi title is necessarily non-exclusive, even with respect to land that was actually and exclusively "possessed, occupied, or used" in 1934.

Id. at 809-10 (emphasis added).

Upon remand, the district court held a bifurcated trial. In the first phase, the court tried the issue of which land was occupied exclusively by the Hopis in 1934, which the parties agreed was the relevant year under the statute. Masayesva v. Zah, 793 F.Supp. 1495 (D.Ariz.1992). In the second phase, the court tried the issue of what to do with lands occupied by both tribes in 1934. Masayesva v. Zah, 816 F.Supp. 1387 (D.Ariz.1992). During this second phase, the court took evidence on contemporary land use and occupancy, for purposes of deciding upon equitable partition. The land occupied by both tribes in 1934 was partitioned by the court, pursuant to 25 U.S.C. Sec. 640d-7(b), which requires that "[a]ny lands in which the Navajo and Hopi Tribes ... are determined to have a joint or undivided interest shall be partitioned by the District Court on the basis of fairness and equity...."

II. Analysis.

A. "Located thereon."

The district court construed the 1934 statutory term "located" to mean something more than the level of possession, occupancy or use which might be used in different contexts to establish aboriginal title. "[T]his court will not apply the same standard regarding the intensity of 'possession, occupancy, and use' required to establish aboriginal title. The Hopi Tribe's claims in this case are based on recognized title granted by the 1934 Act." Masayesva, 793 F.Supp. at 1500 (emphasis in original). ² Although the district court required more substantial occupancy than for aboriginal title, it rejected the Navajo argument that continual physical presence was necessary. Here is the standard that the district court applied to the evidence, in order to determine which pockets of land were occupied by the Hopi tribe:

The Court finds that the use by Hopi Indians must be substantial and sufficiently intensive in order to create a property interest in the 1934 Reservation, though the use does not have to be for subsistence purposes. Use by a few isolated individuals, especially when away from traditional use areas of that individual's Tribe, and irregular or sporadic uses are not sufficient. However, since seasonal use is pervasive in Indian land use patterns, and indeed necessary in the harsh environment of the 1934 Reservation, substantial seasonal use is sufficient for this Court to find occupation or use of the land.

Id. at 1501.

The Hopis argue that this standard was erroneous as a matter of law, because it required more intensive use and occupancy than the aboriginal title cases ordinarily do. We assume for purposes of discussion, without deciding, that the Hopis are correct in their argument that the district court imposed a more stringent...