Sidney v. Zah

• Decision Date: 25 October 1983
• Docket Number: 82-5502,Nos. 82-5375,s. 82-5375
• Citation: 718 F.2d 1453
• Parties: Ivan L. SIDNEY, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, For and On Behalf of the Hopi Indian Tribe, Including All Villages and Clans Thereof, and on Behalf of Any and All Hopi Indians Claiming Any Interest In the Lands Described In the Executive Order Dated
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1453

718 F.2d 1453

Ivan L. SIDNEY, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, For and On Behalf of the Hopi Indian Tribe, Including All Villages and Clans Thereof, and on Behalf of Any and All Hopi Indians Claiming Any Interest In the Lands Described In the Executive Order Dated December 16, 1882, Plaintiff-Appellant/Cross-Appellee, v. Peter ZAH, ^* Chairman of the Navajo Tribal Council of the Navajo Indian Tribe For and On Behalf of the Navajo Indian Tribe, Including All Villages and Clans Thereof, and On Behalf of Any and All Navajo Indians Claiming Any Interest In the Lands Described In the Executive Order Dated December 16, 1882 Defendant-Appellee/Cross-Appellant and William French Smith, Attorney General of the United States on Behalf of the United States, Defendant.

Nos. 82-5375, 82-5502.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 15, 1983.

Decided Oct. 25, 1983.

Scott C. Pugsley, Boyden, Kennedy & Romney, Salt Lake City, Utah, for plaintiff-appellant/cross-appellee.

Louis Denetsosie, Window Rock, Ariz., for defendant-appellee/cross-appellant.

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

Before SCHROEDER and BOOCHEVER, Circuit Judges and EAST, ^** District Judge.

SCHROEDER, Circuit Judge.

This is an appeal by the Hopi Tribe, through its representative chairman, Ivan L. Sidney, and a cross-appeal by the Navajo Tribe, through its representative chairman, Peterson Zah, from a contempt order entered against the Navajo Tribe for its failure to remove specified construction built by Navajo individuals on Hopi land. In their appeal the Hopi contend that certain Navajo construction was erroneously omitted from the scope of the court's contempt order. The Navajo Tribe cross-appeals from the contempt order as well as from a declaratory judgment prohibiting all new Navajo construction on Hopi partition land. The Navajo argue that they are without power to comply with the contempt order or with the declaratory judgment because they have no jurisdiction over tribal members living on Hopi land. We affirm the district court's order and judgment.

I BACKGROUND

Judicial involvement in the historic land dispute between the Hopi and Navajo Tribes began in 1958, when Congress waived the tribes' sovereign immunity and authorized either tribe to initiate a quiet title action to settle their conflicting claims to reservation land. Act of July 22, 1958, Pub.L. No. 85-547, 72 Stat. 403. The Hopi brought suit, and a three-judge district court held that the Hopi were entitled to the exclusive possession of a portion of the reservation. The court also held that both the Navajo and Hopi held joint, undivided, and equal interests to the remainder of the reservation, ¹ and thus, created the joint use area (JUA). Healing v. Jones, 210 F.Supp. 125 (D.Ariz.1962), aff'd, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963) (per curiam) (Healing).

Both tribes found their co-tenancy in the JUA unsatisfactory and unworkable. The Hopi Tribe, claiming that the Navajos denied members of the Hopi Tribe the right to equal use of the JUA, petitioned the district court in 1970 for an order of compliance with the Healing judgment. ² A subsequent order which, in part, required a reduction of Navajo construction in the JUA was affirmed by this court. Hamilton v. MacDonald Congress reentered the dispute by enacting another statute, Act of Dec. 22, 1974, Pub.L. No. 93-531, 88 Stat. 1712 (1974 Settlement Act) (codified as amended 25 U.S.C. Secs. 640d to 640d-28), which provided for the appointment of a mediator to assist in negotiating a settlement and partition of the JUA. The district court was given authority, if settlement efforts failed, to make a final partition of the disputed reservation area; the district court entered a judgment of partition in 1977. This judgment included prohibitions against new Navajo construction on Hopi partition land as well as against new Hopi construction on Navajo partition land. On appeal, the Navajo disputed the boundaries of the partition order. We approved the theory of equality underlying the partition, but remanded the case for further proceedings concerning the boundary issue. Sekaquaptewa v. MacDonald, 575 F.2d 239 (9th Cir.1978). The district court entered another judgment of partition, also containing construction prohibitions, which we then approved. Sekaquaptewa v. MacDonald, 626 F.2d 113 (9th Cir.1980).

                03 F.2d 1138 (9th Cir.1974).  The district court then cited the Navajo for contempt for failing to control construction as ordered.  We affirmed this holding, too.   Sekaquaptewa v. MacDonald, 544 F.2d 396 (9th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977).
                

The orders challenged here are based on the construction prohibitions contained in the district court's initial 1977 judgment of partition. In 1980, the court, at the Hopi's request, issued an injunction ("1980 Construction Order") reaffirming the prohibition against new construction on partitioned JUA land and ordering the Navajo Tribe to cause the removal and disassembly of several structures built on Hopi partition land after the original partition was entered in 1977, but before the Hopi motion was filed in 1979 ("old-new" construction). In response to that injunction, the Navajo Tribe disseminated information, requesting tribal members to remove non-compliant construction from Hopi land and to refrain from building any new structures.

In 1981, the Hopi, contending that Navajo tribal members had not removed their "old-new" construction from Hopi partition land, moved for a contempt order against the Navajo Tribe. The district court granted this motion, finding the Navajo Tribe to be in contempt for failing to cause the removal of the "old-new" construction. In this "1982 Construction Order," the district court directed the Navajo Tribe again to cause the removal of the "old-new" construction as well as to cause the removal of Navajo construction which had taken place between 1979 and 1981 ("new-new" construction). The court also found that the Hopi were barred from seeking the removal of an additional, allegedly "old-new" structure (structure 75), because it was built prior to 1979 and had not been included in the 1979 injunction proceeding. This appeal and cross-appeal followed.

II DISCUSSION

A. The Navajo Appeal ³

The Navajo Tribe contends that it cannot be found in contempt because it lacks the ability to comply with the district court's order to cause the disassembly and removal of structures built on Hopi partition lands. Specifically, the Tribe argues that it has no sovereign jurisdiction over members who live on what is now Hopi land and that, even if the Tribe had such power when the land was considered a joint use area, any jurisdiction was divested by the district court's 1977 partition order and by Congress when it enacted 25 U.S.C. Sec. 640d-9(e)(1)(B). ⁴

In rejecting the Navajo argument, the district court properly stressed that since the Tribe represents its membership by Congressional delegation, the Tribe is the entity to which orders effectuating the partition must be directed. See 25 U.S.C. Secs. 640d-17(a), (c) (each tribe authorized to commence or defend actions necessary to effectuate partition and insure quiet enjoyment of partitioned land); cf. 25 U.S.C. Sec. 640d-7(a). The Navajo Tribe therefore was obligated to carry out the court's order.

The Navajo nevertheless claim that because tribal sovereignty "stops at the border," the Tribe is unable to comply. We realize that there is indeed "a significant geographical component to tribal sovereignty." White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 151, 100 S.Ct. 2578, 2587, 65 L.Ed.2d 665 (1980); accord, Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 142, 102 S.Ct. 894, 904, 71 L.Ed.2d 21 (1982). The 1980 amendments to the Settlement Act clearly provide that each tribe shall have full and complete jurisdiction and authority over lands it acquired in the district court's 1977 judgment of partition. See 25 U.S.C. Sec. 640d-9(e)(1)(B). ⁵

The issue here, however, does not concern the extraterritorial application of tribal law to which section 640-9(e)(1)(B) is directed. This case concerns the Navajo Tribe's responsibility to effectuate Congress' express intent to resolve the land dispute between the Hopi and Navajo tribes expeditiously through judicial proceedings enforcing partition. See 25 U.S.C. Sec. 640d-3(b). Congress has long been aware that the partition process necessary to resolve the Navajo-Hopi dispute would create a situation in which tribal members would be residing off-reservation. See, e.g., S.Rep. No. 1177, 93d Cong., 2d Sess. 14 (1974); H.R.Rep. No. 909, 93d Cong., 2d Sess. 9 (1974). To remedy that situation it attempted to provide fully in both the 1974 Act and the 1980 Amendments for the relocation and resettlement of tribal members. See 25 U.S.C. Secs. 640d-10 to 640d-15. The order questioned here is a part of that judicial partition and congressionally authorized relocation and resettlement process; the Tribe remains the entity responsible for compliance. The partition boundary therefore does not limit the Navajo Tribe's authority to enforce this judicial order.

We further observe that reservation boundaries are not considered absolute limitations on tribal power in other contexts as well. See White Mountain Apache Tribe, supra, 448 U.S. at 151, 100 S.Ct. at 2587. As the Supreme Court has stated, Indian tribes "are unique aggregations possessing attributes of sovereignty over both their members and their territory." Merrion, supra, 455 U.S. at 140, 102 S.Ct. at 903 (quoting United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 711, 42 L.Ed.2d 706 (1975) (emphasis supplied)). Membership is therefore another aspect of tribal sovereignty which exists separate and apart from the territorial jurisdiction of the tribe....