Walker v. Navajo-Hopi Indian Relocation Com'n, NAVAJO-HOPI

• Citation: 728 F.2d 1276
• Decision Date: 23 March 1984
• Docket Number: NAVAJO-HOPI,No. 83-2073,83-2073
• Parties: Nancy WALKER, Plaintiff-Appellant, v.INDIAN RELOCATION COMMISSION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1276

728 F.2d 1276

Nancy WALKER, Plaintiff-Appellant, v. NAVAJO-HOPI INDIAN RELOCATION COMMISSION, Defendant-Appellee.

No. 83-2073.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 1984.

Decided March 23, 1984.

Richard M. Grimsrud, Wilson, Gaylord & Grimsrud, Flagstaff, Ariz., for plaintiff-appellant.

Ellen J. Durkee, Dept. of Justice, Washington, D.C., for defendant-appellee.

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

Before ANDERSON, SKOPIL, and FERGUSON, Circuit Judges.

SKOPIL, Circuit Judge:

INTRODUCTION

The Navajo-Hopi Indian Relocation Commission ("Commission") determined that Walker was not entitled to benefits under the 1974 Settlement Act, 25 U.S.C. Sec. 640d et seq. ("Act"). Walker complained in district court that she was entitled to benefits because her name appeared on a list of "potential" beneficiaries submitted by the Commission to Congress. The district court granted the Commission's motion for summary judgment. Walker appeals.

FACTS AND PROCEEDINGS BELOW

In 1882 a large reservation in northeastern Arizona was set aside for use by the Hopi Indians and "such other Indians as the Secretary of the Interior may see fit to settle thereon." Executive Order of December 16, 1882. In subsequent years, members of the nearby Navajo Tribe migrated to much of the reservation and settled. By the middle part of this century the reservation was populated largely by Navajos. The Hopi and Navajo tribes, which historically had competed for resources, became enmeshed in a struggle over the reservation lands.

Various legislative and administrative efforts were made to quell the land conflict. See generally 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). In 1962 it was determined that most of the reservation was held jointly and equally by Hopi and Navajo tribes. Id. The Healing case did little to resolve the conflict between the two tribes over the Joint Use Area ("JUA").

Finally, in 1974, Congress passed the Settlement Act, 25 U.S.C. Secs. 640d et seq., directing the partition of the land making up the JUA. The Act directs a three-member Commission to relocate those Navajos on the Hopi side of the partition line and those Hopis on the Navajo side of the partition. 25 U.S.C. Secs. 640d-11, 640d-12. Moving expenses and incentive bonuses are authorized for those relocating pursuant to the Act. 25 U.S.C. Secs. 640d-13, 640d-14.

The hearings officer who considered Walker's application for relocation benefits made, among others, the following findings of fact.

1. Walker, who is over 80 years old, was born and lived most of her life on a part of the JUA partitioned for use by the Hopi Indians. She is a Navajo and has been harassed by Hopis.

2. Walker's health deteriorated over the years, and she began going to a medical facility in Tuba City, Arizona for eyesight problems in the late 1960's. She had eye surgery in 1971.

3. Walker returned to the JUA following her eye surgery. She was assisted in household chores and livestock care by her granddaughters and neighbors.

4. In 1972 Walker's granddaughters moved to Tuba City.

5. In 1972 Walker applied for a homesite lease in Tuba City. Walker had been going to Tuba City on a regular basis in order to obtain medical treatment and, when in Tuba City, she stayed with her granddaughters.

6. In 1973 applicant's hogan in the JUA was vandalized and partially burned.

7. In 1973 or early 1974 Walker sold the remains of the hogan for $50.00 and moved to Tuba City to live with her granddaughters.

8. After Walker moved to Tuba City she returned to the JUA approximately every other week for brief visits with friends.

9. Walker's visits to the JUA became less and less frequent.

10. In 1978 Walker was granted a homesite lease in Tuba City.

11. As of December 22, 1974 applicant did not own a homesite in the JUA and applicant did not reside in the JUA.

Based on these findings, the hearings officer concluded that applicant's move off of the JUA to Tuba City predated the Settlement Act and was a result of medical problems and fear of the Hopis. Her visits to the JUA subsequent to her move were primarily social. The hearings officer concluded that, because the move was not made "pursuant to the Act," Walker was not entitled to receive relocation benefits or assistance from the Commission. The Commission adopted the findings and conclusions without comment, and Walker took her case to the district court.

Walker did not challenge in district court, and does not challenge on appeal, the Commission's findings of fact. The sole basis for Walker's challenge in district court and here is that her name appeared on a list of Navajo residents of Hopi-partitioned lands submitted to Congress by the Commission in 1981. The Commission was required to produce such a list by the Act. 25 U.S.C. Sec. 640d-12. Walker contended that, by virtue of her appearance on the 1981 list of names, she was per se eligible for relocation benefits.

The district court denied Walker's motion for summary judgment and granted the Commission's motion for summary judgment. Walker appeals.

ISSUE

Is Walker entitled to relocation benefits based on the appearance of her name on the 1981 list?

DISCUSSION

A. Standard of Review.

The issue presented is a question of law. This court's review of a grant of summary judgment on a question of law is de novo. Chelson v. Oregonian Publishing Co., 715 F.2d 1368, 1370 (9th Cir.1983). The standard applied in district court, and to be applied here, is whether the Commission's denial of benefits was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 5 U.S.C. Sec. 706(2)(A); see Saavedra v. Donovan, 700 F.2d 496, 498 (9th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 236, 78 L.Ed.2d 227 (1983).

The question of law presented involves statutory construction. The Commission's construction of the statute is entitled to considerable deference. See, e.g., Blum v. Bacon, 457 U.S. 132, 141, 102 S.Ct. 2355, 2361, 72 L.Ed.2d 728 (1982); Miller v. Youakim, 440 U.S. 125, 144, 99 S.Ct. 957, 968, 59 L.Ed.2d 194 (1979).

B. Merits.

Sections 12-15 of the Act create a three-member, independent Commission to plan relocation and disburse relocation benefits to those forced to move because of the partitioning of the JUA. See 25 U.S.C. Secs. 640d-11 to 640d-15. The Commission's first task was the development of a relocation plan for residents of partitioned lands. The Commission was authorized to assist voluntary relocations prior to preparation of the plan. Other relocations were to be made pursuant to the plan. 25 U.S.C. Sec. 640d-12(c).

The relocation plan was to be filed with Congress as part of a progress report. The report was also to include:

(1) the names of all members of the Navajo Tribe who reside within areas partitioned to the Hopi Tribe and the names of all members of Hopi Tribe who reside within the areas partitioned to the Navajo Tribe; and

(2) the fair market value of the habitations and improvements owned by the heads of households identified by the Commission as being among the persons named in clause (1) of this subsection.

When the report was submitted to Congress in 1981 Walker's name was on the "enumeration" list. See Navajo and Hopi Indian Relocation Commission, Report and Plan (1981) ("Report and Plan"). It is Walker's position that inclusion of her name on the list is conclusive as to her eligibility for relocation benefits, despite the later finding by the Commission that she is not eligible.

The Commission has always taken the position that the enumeration list is not conclusive as to eligibility. The Commission treated the list as a way of informing Congress of the approximate number of people affected by the settlement so that estimates of relocation costs could be made. Prior to the list no reliable information was available about the number of people living in the JUA or their tribal affiliation.

Consistent with this interpretation, the Commission developed criteria in regulations for determining those entitled to benefits. The list upon which Walker's name appears is entitled "Roster of Potential Relocatees," (emphasis added) and is prefaced with the statement that:

The inclusion of persons in this enumeration is not to be taken as a determination of eligibility for the relocation benefits. Eligibility for relocation benefits occurs when an applicant has met the criteria specified in 25 C.F.R. Sec. 700.5(y) and 700.11(b) [now codified at 25 C.F.R. Sec. 700.97 and 700.147]. The determination of eligibility requires an investigation and examination of facts relevant to each individual application.

The criteria for determining eligibility are generous, providing benefits for people not physically residing on the JUA under some circumstances. Walker was found ineligible because she moved off the JUA prior to creation of the Act and the benefit programs. The Commission found that she was no longer a "resident" at the time the Act became effective. See 25 C.F.R. Sec. 700.147.

Walker does not, and may not now for the first...