[Senate Hearing 109-183]
[From the U.S. Government Publishing Office]
S. Hrg. 109-183
NAVAJO-HOPI LAND SETTLEMENT
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
ON
S. 1003
NAVAJO-HOPI LAND SETTLEMENT AMENDMENTS OF 2005
__________
JULY 21, 2005
WASHINGTON, DC
U.S. GOVERNMENT PRINTING OFFICE
22-642 WASHINGTON : 2005
_____________________________________________________________________________
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COMMITTEE ON INDIAN AFFAIRS
JOHN McCAIN, Arizona, Chairman
BYRON L. DORGAN, North Dakota, Vice Chairman
PETE V. DOMENICI, New Mexico DANIEL K. INOUYE, Hawaii
CRAIG THOMAS, Wyoming KENT CONRAD, North Dakota
GORDON SMITH, Oregon DANIEL K. AKAKA, Hawaii
LISA MURKOWSKI, Alaska TIM JOHNSON, South Dakota
MICHAEL D. CRAPO, Idaho MARIA CANTWELL, Washington
RICHARD BURR, North Carolina
TOM COBURN, M.D., Oklahoma
Jeanne Bumpus, Majority Staff Director
Sara G. Garland, Minority Staff Director
(ii)
C O N T E N T S
----------
Page
S. 1003, text of................................................. 3
Statements:
Bavasi, Christopher J., executive director, Office of Navajo
and Hopi Indian Relocation................................. 58
Bitsue, Roman, executive director, Navajo-Hopi Land
Commission Office.......................................... 66
Denetsosie, Louis, attorney general, Navajo Nation........... 69
Inouye, Hon. Daniel K., U.S. Senator from Hawaii............. 57
McCain, Hon. John, U.S. Senator from Arizona, chairman,
Committee on Indian Affairs................................ 1
Ragsdale, William P., director, BIA, Department of the
Interior................................................... 57
Shirley, Jr., Joe, president, Navajo Nation.................. 63
Taylor, Jr., Wayne, tribal chairman, Hopi Tribe.............. 70
Tessler, Paul, legal counsel, Office of Navajo and Hopi
Indian Relocation.......................................... 58
Appendix
Prepared statements:
Bavasi, Christopher J........................................ 77
Bitsue, Roman (with attachment).............................. 82
Denetsosie, Louis............................................ 149
Ragsdale, William P.......................................... 78
Shirley, Jr., Joe............................................ 79
Taylor, Jr., Wayne (with attachment)......................... 157
NAVAJO-HOPI LAND SETTLEMENT
THURSDAY, JULY 21, 2005
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The committee met, pursuant to notice, at 9:35 a.m. in room
485, Senate Russell Building, Hon. John McCain (chairman of the
committee) presiding.
Present: Senators McCain, Dorgan, and Inouye.
STATEMENT OF HON. JOHN McCAIN, U.S. SENATOR FROM ARIZONA,
CHAIRMAN, COMMITTEE ON INDIAN AFFAIRS
The Chairman. Good morning.
I want to thank Senator Inouye for stopping by this morning
because he is one of those who has been involved in this issue
for many years, as I have. Senator Inouye, for the record, one
of my earliest memories was in 1983 when I was a member of the
House, now 22 years ago, traveling to Navajo and Hopi lands and
having a long series of meetings with Congressman Udall, then
chairman of the Interior Committee, to try to get the issue of
Navajo-Hopi land disputes settled, one of the few times in Mo
Udall's career he was not successful.
Then I know when I came to the Senate in 1987, this issue
again was before the committee, the issue of the Bennett
freeze, how many families needed to be located, how soon would
we be able to terminate this. And now we have spent since 1974
now 31 years we have spent $483 million and witnesses will come
before this committee today and say we are still not finished.
It is going to be over. It is going to be over. It is going
to be over. It is time it ended. It is time that we brought to
a conclusion this tragedy that has afflicted human beings on
the Navajo and Hopi Reservations for too long.
I guess, and I would be interested in hearing my colleague
from Hawaii's comments, maybe the lesson is you should not try
to settle land disputes through legislation. That may be one of
the lessons we have learned here since 1974.
I do not diminish in any way the human tragedy that has
been associated with this issue. Witnesses today are as well
aware of that as I am. I am also aware that is a limited amount
of American taxpayer's dollars that could be devoted to worthy
causes on both the Navajo and Hopi Reservations: Educational
facilities, health care facilities, housing, and many others.
I want to emphasize, we have to bring closure to this. On
many occasions in the past, all through the 1980's and 1990's,
I was told just a few more years, just a few more years, just a
few more years. The year is now 2005, $483 million spent in the
meantime. It is time to bring closure.
I want to clarify that the bill is not intended to alter
prior court decisions on land claims or to impact on ongoing
negotiations between the Navajo and Hopi Tribes. I commend you
for the progress that is being made. I also understand there is
a strong desire to address the deplorable conditions on the
Bennett Freeze. I, too, want to address this in separate
legislation.
When enacted in 1974, the Navajo and Hopi relocation
process was intended as a temporary means to relocate families
who were living on the disputed land on December 22, 1974, 31
years ago. The act originally intended that relocation
activities would be completed by 1986, and that the total cost
would be $40 million. Since its inception, the relocation
process has been plagued with controversy and delay and the
Congress has had to amend the act several times to expand the
relocation activity and provide additional appropriations.
I recognize the deep emotional toll that relocation has
taken on the Navajo and Hopi Tribes and to the individual
relocatees. But after 31 years of identifying and relocating
eligible applicants and appropriations of one-half billion
dollars, it is time to bring the relocation program to a close.
This bill intends that by September 2008, the relocation
office will transfer remaining responsibilities and necessary
personnel and funding to the Department of the Interior.
Thereafter the Federal Government will no longer be
obligated to provide replacement homes for eligible relocatees.
The funds to provide these homes will be placed in trust with
Interior for dissemination to eligible relocatees or their
heirs. All other necessary relocation activity will be
administered by the department until these activities are
complete.
In 1996, I introduced a bill that would have phased out the
relocation program by September 2001. At a hearing on that
bill, many witnesses stated that this was a reasonable timeline
to complete the activity, but opposition remained due to the
pending approval of the accommodation lease agreements by the
Department of the Interior. That activity is now complete and
an additional 9 years have passed in which additional
relocation activity has occurred.
I commend the relocation office for its ongoing efforts to
implement this complex program. I understand that you have
reviewed over 4,600 applications, considered numerous appeals
and provided relocation homes for over 3,600 families. You have
also provided funding to both tribes to address the impacts of
relocation.
I welcome you all to the hearing and I look forward to your
testimony on this important matter.
[Text of S. 1003 follows:]
The Chairman. Senator Inouye.
STATEMENT OF HON. DANIEL K. INOUYE, U.S. SENATOR FROM HAWAII,
COMMITTEE ON INDIAN AFFAIRS
Senator Inouye. Thank you very much.
As you have pointed out, Mr. Chairman, this problem has
been with us for over 125 years. It is one based on culture and
history and much blood has been shed. But as you pointed out,
Mr. Chairman, the time has come. Yes, the time has come.
When we first handled this, it was $40 million. Now, it is
nearly one-half billion dollars and it could get higher.
But the spirit of cooperation is here, and I am certain
that the leaders of both the Hopi and Navajo have learned that
by cooperating one can achieve a lot. I hope that spirit will
prevail. Some day soon, Mr. Chairman, I hope you and I can go
there to celebrate this great event.
The Chairman. Thank you very much, Senator Inouye. I want
to thank you for your continued involvement and commitment on
this issue for many, many years.
I again want to commend Chris Bavasi, the executive
director of the Office of Navajo and Hopi Indian Relocation,
and William Ragsdale, but particularly you, Chris, for the
outstanding job that you have performed over many years and
exceedingly difficult ones.
Our first panel today is Christopher J. Bavasi, executive
director of the Office of Navajo and Hopi Indian Relocation.
He is accompanied by Paul Tessler. Mr. Tessler, would you
like to come to the table? Paul Tessler is legal counsel of the
Office of Navajo and Hopi Indian Relocation in Flagstaff, AZ.
And William P. Ragsdale, who is the director of the Bureau of
Indian Affairs, U.S. Department of the Interior.
I think it would be appropriate to begin with you, Mr.
Ragsdale.
STATEMENT OF WILLIAM P. RAGSDALE, DIRECTOR, BUREAU OF INDIAN
AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR
Mr. Ragsdale. Thank you, Mr. Chairman.
First of all, I want to say that I appreciate the
opportunity to appear here before the committee. I appreciate
the committee's concern. I want to pledge that we will work
with this committee, the Navajo-Hopi Relocation Commission, the
Navajo and Hopi Tribes, to transition the activities required
by the act and the proposed amendments.
Mr. Chairman, if it is all right with you, I would like to
just summarize my views and then answer any questions the
committee may have. I would request that my written testimony
be included in the record.
The Chairman. Without objection, all the written testimony
will be made part of the record by all witnesses.
Mr. Ragsdale. Again, thank you, Mr. Chairman, and thank
you, Senator Inouye, for being here. I have appeared before
this committee before in my younger years, both as a tribal
official and as a BIA official. It is good to see you again.
Yesterday, I met with the Navajo-Hopi Relocation
Commission. I think we had a very productive meeting. We talked
about transitioning the activities of the Commission,
particularly the land management responsibility that the Bureau
of Indian Affairs traditionally has on Indian lands throughout
the country. I think that we will be working closely together
to make that transition by the time, if not before, the term of
the Relocation Commission expires.
We have concerns addressed in my formal testimony about any
remaining duties that would be required to relocate individual
Indians and families, and the determinations of their
eligibility, if that is not completed by the term of the
Commission. However, the Commission has told me that they
expect those activities to be closed and completed before their
term expires.
In addition to that, we would like to work with the
committee and the Commission to carry out the transition plans.
The only other concern that we would have is the personnel
provisions that I think if we can work out with the committee
that have been brought to our attention.
With that, I will end my testimony, Mr. Chairman, and I
will be glad to answer your questions. Thank you.
[Prepared statement of Mr. Ragsdale appears in appendix.]
The Chairman. As part of your opening statement, do you
believe that this legislation is now necessary?
Mr. Ragsdale. If it is necessary to complete the work of
the Commission in finality, yes sir, I do.
The Chairman. Thank you very much.
Mr. Bavasi, again I want to thank you for the outstanding
work you and the Commission have performed over a many year
period. Please proceed.
STATEMENT OF CHRISTOPHER J. BAVASI, EXECUTIVE DIRECTOR, THE
OFFICE OF NAVAJO AND HOPI INDIAN RELOCATION; ACCOMPANIED BY
PAUL TESSLER, LEGAL COUNSEL, THE OFFICE OF NAVAJO AND HOPI
INDIAN RELOCATION
Mr. Bavasi. Thank you, Senator.
I do have a written statement that I will submit for the
record. I just want to give you the first couple of paragraphs
here. Actually, in early June of this year, I and my staff met
with the members of the committee's staff in Flagstaff, AZ for
the purpose of giving comments on the original draft of S.
1003. The Office is in agreement with the legislation's
projected date for completion of relocation and transfer of any
remaining functions to a newly created Office of Relocation
within the Department of the Interior.
I just want to make it clear that we believe that we can
finish the relocation project and be prepared to turn over the
land management program to BIA in the time frame that you have
submitted in your pending legislation.
With that, I will submit the rest for the record.
[Prepared statement of Mr. Bavasi appears in appendix.]
The Chairman. Maybe for the record it might be helpful, Mr.
Bavasi, to describe to the committee for the record, if I went
to the Phoenix Rotary Club today and said, you know, we passed
a law in 1974 that was supposed to cost $40 million and take
maybe 10 to 12 years, and it has ended up costing one-half of a
billion dollars and has gone on for 31 years. How would you
describe this saga?
First of all, there is a lesson that Congress probably
should not pass laws dictating relocation. Is that the first
lesson?
Mr. Bavasi. Probably, but I would do it carefully. I would
not want to blame this on anyone. I would merely point out
that, well, let me back up. I think the record would show that
when this was originally contemplated that the notion was that
there would be maybe 1,000 or 1,100 families that needed to be
moved. The deadline of 1985 then 1986 came about because the
law required the Office to submit a plan, have plan approved,
and then 5 years later the project was supposed to be done.
That was 1985. And then because of some legal issues, it became
1986.
So July 7, 1986, this project was supposed to be done and
originally it had been contemplated there would be 1,100
families, 1,000 or 1,100 families to be moved. Interestingly
enough, in 1986 1,100 families had been moved. However, because
for a whole variety of reasons, ultimately 3,600 families had
been certified, or ultimately had been certified. So that is
certainly one reason that it has taken this long.
Another reason I think is that this has been purported to
be something less than a voluntary program. But in fact, it has
always been operated as a voluntary program. So some folks did
not see the urgency to move through the program perhaps as
quickly as they would otherwise.
The Chairman. So no one has ever been forced off of their
land?
Mr. Bavasi. No, sir; it has never happened. I will visit
with you later, if I am able to, about how we think we can come
to a conclusion so no one will ever be forced off their land.
So I think those two issues would be one reason we are
where we are today.
The Chairman. How would you account for gross
miscalculation of costs from a $40 million original cost to a
one-half-billion dollars actual cost?
Mr. Bavasi. I am not sure I can because I do not know what
the theory was or the thought process was 30 years ago that it
would cost $40 million. We believe, and I think we can show
that we have been fairly frugal in terms of the expenditure of
money, we are able to even today, in today's housing market, we
are able to build a home for slightly over $100,000 in 2004. It
will be slightly higher this coming year.
The Chairman. I think Mr. Tessler might testify that there
has been huge, huge amount of legal costs associated with this
issue. Is that right, Mr. Tessler?
Mr. Tessler. That is correct.
The Chairman. Could you estimate out of this one-half
billion dollars how much has just been expended in continuous
court battles? I think there have been continuous court battles
from the day that this bill was passed.
Mr. Tessler. Yes; there have. I know we provided the figure
to your staff. I do not have it in front of me, but all through
this process, the relocatees, if they have been denied
eligibility for benefits, have been entitled to administrative
hearings, and the Navajo Nation has provided a legal services
program to represent them all through that process, which
involved not only the administrative stage, but also appeals to
the U.S. District Court, which generated much expense.
The Chairman. In all due respect to our friends in the
legal profession, this has been quite a windfall for them.
Mr. Tessler. Yes; it has.
Mr. Bavasi. We can get you that number for the record,
Senator.
The Chairman. Would you please for the record give us an
estimate of the legal costs associated with this? I think it
has really been horrendous. Again, maybe with the benefit of
31-year hindsight, maybe we should have never passed the law to
start with.
Mr. Bavasi, using your expertise, what do you think we
ought to do about the Bennett Freeze situation, which we all
know has turned into, with all good intentions, into a
deplorable economic disaster area.
Mr. Bavasi. Senator, I do not think there is any easy
answer to it. As you suggest, it is a deplorable, awful
situation.
I think if we all work together, the Navajos, the Hopis and
Congress, the Federal Government, we can come to some
conclusion on how that area can be rehabilitated.
The Chairman. Which I think Congress, by the way, would be
more than willing to provide funds for, but first we have to
have a resolution. What if we passed a law tomorrow that said
Bennett Freeze is lifted? What would happen then?
Mr. Bavasi. Number one, I do not think that would be wise.
I think that we should all work together to come to some
meeting of the minds.
The Chairman. Wouldn't be wise because what would happen?
Mr. Bavasi. Chaos might be an appropriate term. I do not
have any idea what would happen, but I do not think it would be
good because everyone would be scrambling to get the upper
hand, and I do not think that is the proper way to handle it.
The Chairman. But negotiations between the tribes for 31
years have not succeeded.
Mr. Bavasi. I am not sure we have tried that hard. I am not
sure we have tried that hard on the Bennett Freeze issue. I
could be completely wrong. I am not involved in that, but I
suspect that we can come to some conclusions, frankly, using
the relocation as a benchmark of perhaps what not to do going
in.
The Chairman. Senator Inouye.
Senator Inouye. As I have indicated earlier, I am very
optimistic because I recall the first meeting that this
committee held during which time the chairman of the Hopi and
the chairman of the Navajo sat at the same table, and that had
never happened before. Today, I note that for over 3 years, I
believe, negotiators and the leaders of both tribes have been
looking into the access to sacred sites in each other's camps.
Now, if we can go that far, I am certain all of these matters
can be resolved.
I share the chairman's optimism and his directness that
this be resolved. I am with him.
Mr. Bavasi. Senator, may I add that I hope I did not leave
the wrong impression. There is no relocation on the Bennett
Freeze.
The Chairman. Yes; but the Bennett Freeze continues to be a
source of major friction between tribes, and the deplorable
economic conditions that exist are just, you know, it is an
outrage that any citizen of the United States should live in
the conditions that exist on the Bennett Freeze. That was
created by the Federal Government. Is that an inaccurate
statement?
Mr. Bavasi. No; it is not.
The Chairman. Mr. Ragsdale, do you have any comment on
that?
Mr. Ragsdale. No, sir. I think it would have to be
addressed in separate legislation.
The Chairman. Mr. Tessler.
Mr. Tessler. No, sir.
The Chairman. You guys are surprisingly reticent.
Mr. Bavasi. We are not a party to that suit, nor have we
been.
The Chairman. No; but you are very familiar with the impact
that the Bennett Freeze has had on this whole issue.
Mr. Bavasi. That part of the reservation has fallen behind
even the former joint use area that we are dealing with now in
terms of development and lack of infrastructure. I do believe
it is very close to resolution. I believe the tribes are
considering the compacts which may resolve it anytime now.
The Chairman. Good.
Mr. Ragsdale. Mr. Chairman, the freeze was put in place in
1964 and 1965, about the time I graduated from high school.
When I learned the other day when I was being briefed on
the matter that the freeze was essentially still the status
quo, I was somewhat surprised.
The Chairman. As I remember history, it was put in as a
temporary measure that would be an incentive to not have one
tribe take advantage over the other while the dispute was going
to be resolved within a short period of time, and here we are
50 years later, whatever 40-some years later.
Again, I go back, Senator Inouye. I think that Congress
ought to be more careful about, and Administrations ought to be
more careful, as we all know, it was an Executive order, the
Bennett Freeze, as to how we interfere in these disputes
because sometimes the laws of unintended consequences prevail
in an incredible fashion.
One other issue I had for you, Mr. Bavasi, construction and
maintenance problems with relocation housing. How severe are
they?
Mr. Bavasi. Construction and maintenance problems?
The Chairman. Yes.
Mr. Bavasi. Construction problems are minimal. We have
either purchased or constructed over 3,400 houses. We have a
program on the new lands, that is an area in Sanders, about
350,000 acres, there are almost 400 homes there, 397 homes.
We have a very small portion that originally were started
by BIA a number of years ago. One of the previous, it was not
called ``director'' then.
Mr. Ragsdale. Assistant Secretary.
Mr. Bavasi. Assistant Secretary then had about $25 million
to build houses, and decided that BIA wanted to do it
themselves. There were some earth problems. The houses that
were begun to be built there, 12 or 13, and then the program
came back to us. We finished the houses. To make a long story
short, there are 36 houses there. About 12 of them have had
some foundation problems. We are now going in and evaluating
all of that, and we will fix whatever needs to be fixed.
The point I am making is that besides those, there are very
few houses, not none, but very few houses over the course of
these years that have needed to be fixed because of latent
defects in the construction.
Maintenance is an entirely different story. We expect our
clients to take care of the houses, as anybody else would. So
we frequently get complaints about shingles off the roof,
broken windows, those kinds of things.
The Chairman. Mr. Ragsdale, finally, the reason why the
Office of Navajo and Hopi Indian Relocation was created
originally was because of the belief that the Bureau of Indian
Affairs could not handle it. Now, we are going to I guess turn
over a few loose ends to you, hopefully a minimum. But I hope
that you will give this issue the attention it deserves as we
complete this, in my view, unhappy chapter in many ways in
American governmental relations with Native Americans.
So I hope that I can get a commitment from you that you
will place this as a very high priority whatever
responsibilities may remain, including actively involved in how
we can get the Bennett Freeze lifted and be equitable to all
parties.
Mr. Ragsdale. I will place that, Senator.
The Chairman. Thank you very much.
Again, Mr. Bavasi, I know you have been involved in this
issue for a very long time. I have heard nothing but praise
from Navajo and Hopi alike. You have been involved in some very
incredibly traumatic issues for some families who have had to
move off of land that they occupied for centuries thank you for
the job that you and the Commission have done.
Mr. Bavasi. Thank you, Senator. That is very kind of you.
The Chairman. Thanks very much.
Mr. Ragsdale. Mr. Chairman.
The Chairman. Yes; go ahead.
Mr. Ragsdale. I might say, just to express one reservation
that is included in my formal testimony, that our optimism, and
I am optimistic that we will be able to effect an orderly
transition and can work with the Commission, but we do have
reservations if the activities are not concluded with respect
to the relocation of individuals. The Bureau of Indian Affairs
is very reluctant, the Department of the Interior is very
reluctant to be engaged in the movement and responsible for the
relocation of individuals from these lands, which was one of
the purposes of this act initially to put somebody neutral in
charge of that activity.
The Chairman. I understand that. Again, it has been 31
years. People have grown old.
I thank you.
Our next panel is Wayne Taylor, who is the tribal chairman
of the Hopi Tribe; Joe Shirley, who is the president of the
Navajo Nation. He is accompanied by Louis Denetsosie, who is
the attorney general of the Navajo Nation. Our other witness is
Roman Bitsuie, who is executive director of the Navajo-Hopi
Land Commission Office in Window Rock, AZ.
I do not know who is older, between Chairman Taylor and
President Shirley, but President Shirley looks older, so we
will begin with you. [Laughter.]
Welcome to the witnesses.
STATEMENT OF JOE SHIRLEY, Jr., PRESIDENT, THE NAVAJO NATION
Mr. Shirley. Thank you, sir. Good morning, Mr. Chairman and
Senator McCain, and the rest of the members of the committee.
I thank you for the opportunity to discuss the Navajo-Hopi
Land Settlement Amendments with the committee this morning.
My name is Joe Shirley, Jr. I am president of the Navajo
Nation. The Navajo Nation last appeared before this committee
regarding the Navajo-Hopi land dispute in 1996. Since then,
five Congresses and two Administrations have had little
interest in the Navajo-Hopi land dispute. The Navajo Nation and
the Hopi Tribe during that same period have made significant
progress by working in a more collaborative approach with each
other to resolve aspects of the land dispute. These joints
efforts between the Navajos and the Hopis appears to be moving
both tribes to the conclusion of the land dispute.
Following passage of the Navajo-Hopi Land Dispute
Settlement Act of 1996 and this committee's consideration in
the 104th Congress of S. 2111, that bill with a similar intent
to this bill, there has been no action by this committee
regarding the land dispute. I welcome this opportunity to
discuss the current status of these matters with the committee.
The Navajo Nation understands from the introductory
comments of Chairman McCain that he is concerned that the
relocation process has cost far more than originally estimated
and taken too long to complete. The Navajo Nation vigorously
opposed the Navajo-Hopi Land Settlement Act of 1974 before its
passage and actively sought its repeal for years afterwards.
The Navajo Nation unfortunately failed in these efforts. Had
the Navajo Nation been successful, the Navajo people would have
been spared a tremendous harm and the Federal Government would
have been spared a great expense.
That said, now that the Navajo people have had to live
through the nightmare of relocation, we do not think Federal
budgetary issues alone should be a basis for limiting funds to
complete the program, and doing so in a way that brings
humanity to what has otherwise been an inhumane process.
The chairman is concerned with costs. I ask the committee
to consider how they would estimate the costs of moving an
entire town and how they would value the economic and social
upheaval such a move would impose. This is what happened to the
12,000 Navajos who lost their land, their livelihood and their
identity; 12,000 people, which is approximately the population
of Kingman, AZ. How much would it cost to relocate the entire
population of Kingman to the Phoenix area? One billion dollars?
Two billion dollars? How long would it take if the funds were
appropriated bit by bit over 30 years? What would be the impact
if the land that these people were expected to relocate to was
already populated? What would happen if these people suddenly
had to unlearn their skills as farmers and learn to survive in
a cash economy? How long would be too long? How much would be
too much?
The Chairman. Let me answer to that: One-half billion would
be too much and 31 years would be too long. That is my response
to you, Mr. President, and I think most of my citizens,
including your constituents, would agree with that.
Mr. Shirley. Since 1996, the Navajo Nation and the Hopi
Tribe have settled three major pieces of litigation: The Use
Case that arose from 25 U.S.C. 640(d)-17(a)(2); the Damage Case
that arose from 25 U.S.C. 640(d)-17(a)(3); and the Tax Case
that arose from 25 U.S.C. 640(d)(7), and the continued joint
ownership of minerals between the Navajo Nation and the Hopi
Tribe.
The Use and Damage Cases concluded in 1999 when the Navajo
Nation paid the Hopi Tribe $29.1 million, and the Hopi provided
the Nation with satisfactions of judgment in both the Use and
Damage Cases. Nothing remains of these lawsuits.
Similarly in 2002, the Navajo Nation and the Hopi Tribe
settled the Tax Case with a significant payment equal to one-
half of the taxes from the Black Mesa Mine through 2007 were
paid by the Nation to the Hopi Tribe.
Currently, with some assistance from the Office of Navajo
and Hopi Indian Relocation, ONHIR, the Hopi Tribe and the
Navajo Nation are near resolving the final aspects of
relocation without any Navajo evictions from the Hopi
partitioned land.
One of the more significant issues presented by S. 1003 in
relation to this potential for forced evictions is one of
timing. Currently, S. 1003 requires ONHIR to certify
eligibility of all outstanding claims by September 30, 2005.
I understand that this date will be revised to September
30, 2008. Such a change should avoid the need for any forced
relocation of Navajos because the contemplated agreement can be
implemented.
Ideally, if more time is needed to complete these efforts,
with the specter of eviction, that time should be afforded.
This is especially true for interested parties who are
working together to complete difficult tasks.
S. 1003 raises other areas of specific concern including,
first, rehabilitation efforts should be focused on the Navajo
partitioned land. The NPL Navajo communities have borne much of
the cost of the relocation, having absorbed thousands of
relocatees and their livestock in an area that has long been at
or over capacity. The NPL's extremely limited infrastructure,
already overtaxed by the influx of relocatees, was further
constrained by the construction freeze that was in place from
1963 until approximately 1979. This infrastructure continues to
be grossly insufficient to meet the current needs resulting
from the relocation law.
Second, the relocation law currently authorizes the
Commissioner to make grants which significantly assist the
Commissioner or assist the Navajo Tribe or Hopi Tribe in
meeting the burdens of the law. S. 1003 would strike this
provision, but this is the very provision that provides ONHIR
the flexibility to address the needs of families and
communities as they arise. Pursuant to this provision, the
Navajo Nation has proposed various projects such as a community
center for the Navajo families that have signed accommodation
agreements with the Hopi Tribe, range and road improvement,
power line extensions, and some housing improvements for
heavily impacted NPL host families.
Third, the Navajo land selections in New Mexico should not
be prejudiced. Section 107(c) of S. 2003 provides that the
authority of the Commissioner to select lands in New Mexico
shall terminated on September 30, 2008. Since the
Commissioner's authority would terminate on that date, it is
not clear that this authority would continue in the new Office
of Relocation at the Department of the Interior.
The Navajo Nation has not yet completed its new Mexico land
selections due largely to circumstances beyond its control.
Completion of some of those selections is the subject of
legislation introduced in this Congress, specifically S. 692,
the Bisti/PRLA Dispute Resolution Act. The Navajo Nation is
concerned that this provision in S. 1003 could impact that
selection process and potentially prejudice Navajo interests.
This authority should be carried over into the Department
of the Interior if the selections are not completed by
September 30, 2008.
Fourth, the transfer of ONHIR's responsibilities to the
Department of the Interior. ONHIR has developed critical and
hard-won experience in working on and near the Navajo Nation
and is ideally suited to addressing the rehabilitation of the
Bennett and Statutory Freeze areas. Based on this institutional
knowledge, ONHIR should not be eliminated, although it
certainly can be downsized.
I strongly believe that all Navajos want to put the land
dispute with the Hopis behind and move forward. In order for
the Nation to do that, the final tasks that will complete
relocation in a just and human fashion must be accomplished.
One alternative approach that the committee may want to
consider, rather than S. 1003 as presently crafted, would be to
evaluate and enumerate all the tasks the ONHIR needs to perform
to finish its tasks, with input from the Navajo Nation and the
Hopi Tribe, then set out a reasonable timeframe to accomplish
those tasks. That timeframe could be used as a period that
begins after passage of the legislation to complete the tasks
identified.
Such an approach may not have worked prior to 1996, but in
the present collaborative era, the Nation, ONHIR and the Hopi
Tribe can devise a plan to take these final steps. The Navajo
Nation wants this dispute behind us, but we do not want to
leave individuals behind.
In addition to my comments, the Navajo Nation attorney
general has prepared comments on certain specific legal issues
presented by S. 1003. Those matters are also of special concern
because of their impact on cases currently pending in the
courts of the impact these provisions may have on individuals
seeking relocation benefits. Roman Bitsuie, the executive
director of the Navajo-Hopi Land Commission Office, will
discuss the efforts of the Office to serve the relocatees in
the Bennett Freeze area.
Thank you, Mr. Chairman.
[Prepared statement of Mr. Shirley appears in appendix.]
The Chairman. Thank you.
Before we go with you, Chairman Taylor, we will go with Mr.
Bitsuie since it follows. Go ahead. Mr. Attorney General,
please proceed. I mean, Mr. Bitsuie, the executive director,
please go ahead.
STATEMENT OF ROMAN BITSUIE, EXECUTIVE DIRECTOR, THE NAVAJO-HOPI
LAND COMMISSION OFFICE
Mr. Bitsuie. Chairman McCain, Ranking Member Dorgan, and
members of the Senate Committee on Indian Affairs, thank you
for this opportunity to comment on the Navajo-Hopi Land
Settlement Amendments of 2005.
The introduction of S. 1003 provides an important and
timely opportunity to address the status of the Navajo-Hopi
land dispute and the Bennett Freeze. It also provides an
important opportunity to focus attention on the need for
developing a plan for the orderly and humane completion of the
relocation law, including implementation of a rehabilitation
program for affected areas and communities.
I am from the Hardrock Chapter of the Navajo Nation which
was divided in half between the Hopi partitioned land and the
Navajo partitioned lands. I can testify first-hand to the many
hardships resulting from the relocation law. In 1989, I became
the executive director of the Navajo-Hopi Land Commission
Office, the Navajo entity responsible for dealing with all
Navajo and Hopi land-related matters.
Every day, Navajo tribal members come into my office to
tell me of the hardships that they have suffered because of the
relocation law, including lots of young people whose families
relocated and now are homeless and landless. The impact of the
land dispute will be with the Navajo Nation for many
generations to come. Although we may not agree with everything
that will be discussed today, I am sure that we can agree that
relocation has been a fiasco. At a cost of nearly $500 million,
the Federal Government has destroyed the subsistence lifestyle
of thousands of Navajos, uprooted whole communities, and left
the Navajo Nation and the Navajo people to bear much of the
burden of addressing the extraordinary economic, social and
psychological consequences of relocation.
If the Navajo Nation could have its dream bill, it would
overturn the relocation law and provide for a right of return
for affected Navajo families. Of course, we know that this is
not going to happen. Still, our spiritual ties to the land run
deep and it would be a betrayal of our beliefs if I did not
again remind the committee of the nature of the sacrifice the
Navajo families who have left their ancestral lands had to
make.
From the beginning, Federal policy in this area has been
plagued by lack of understanding of the true situation of the
land. When the 1882 Executive Order Reservation was
established, it was an arbitrarily drawn rectangle, one degree
of longitude wide, one degree of latitude high, containing both
Navajo and Hopi populations. In the early 1970's when the
relocation law was under consideration, the Federal Government
grossly underestimated the costs of relocation, again because
they did not take the time to understand properly the situation
on the land.
Now, with the relocation process approaching its end, it is
critically important to not repeat past mistakes and take
action without proper understanding of the situation. We urge
that a study be undertaken to assess the impact of the
relocation law and to serve as a policy and fact-based tool for
developing a humane closure plan. The Navajo Nation began
pushing for a study in the mid-1990's. In the 107th Congress,
this committee actually considered two pieces of legislation
that would have provided for such a study. Unfortunately, the
Hopis opposed the study provision and it was dropped. If either
of these initiatives had been acted upon, we would be sitting
here today with quantifiable data about what has transpired and
what is needed to close out the relocation in a humane manner.
Well, we do not have the empirical data, but we do have
loads of anecdotal information that tells us that many
relocated families have been traumatized and suffer from a much
higher incidence of alcoholism, poverty, suicide, depression
and physical illness than the rest of the local population.
In addition, the burden of caring for these families has
fallen on the surrounding communities, as well as the Navajo
Nation. In my written testimony, I describe at length the
hardships imposed by the relocation law and the related
construction freeze.
Further funding of the Navajo Rehabilitation Trust Fund
should be undertaken to complete its mission of addressing
impacts from the relocation law. The Nation has viewed the
trust fund as a resource for addressing unforeseen and
unintended consequences of the land dispute, not only over the
short term, but also over the long term. When initially created
through the 1980 amendments to the act, it was presumed that
the authorized amount of $60 million would provide a
significant start when invested to address the impact of the
relocation law. It would then be supplemented on an ongoing
basis by the development of Paragon Ranch energy resources.
However, the Navajo Nation received only $16 million through
the trust fund. The fund itself has generated about $8 million
in interest. Thus, the total value of the fund to the Navajo
Nation has been about $24 million.
The Navajo Nation has expended approximately $13 million
since 1999, and it currently has obligated for near-term
expenditure another $2 million, leaving about $9 million in the
trust fund, roughly the amount of interest earned on the
account. Of the $9 million, about $8.3 million has been
committed for the purchase of land in Arizona, some 13,000
acres remaining to complete the land selection provision in
section 640(d)(10)(a)(2) of the current law.
As you know, when the 1882 land was partitioned, the Navajo
Nation lost 911,000 acres of land upon which Navajo families
resided, and only received as compensation 250,000 acres, plus
the right to purchase up to 150,000 acres. Land is extremely
important in Navajo culture. The commitment to purchase
additional land with trust fund moneys falls within the
statutory requirement of the law which is that the moneys are
solely for purposes which will contribute to continuing
rehabilitation and improvement of the economic, educational and
social condition of families in Navajo communities affected by
the law's provision.
The Navajo Nation has considered and is currently
considering several properties. However, because it is
critically important that any newly acquired lands truly
benefit the affected Navajo families, the Navajo Nation is
exercising due caution. Until the land purchases are made, the
Navajo Nation is using the interest from the trust fund to pay
for ongoing projects to mitigate the effects of the relocation.
We were encouraged that S. 1003 would authorize additional
appropriations for the trust fund. We now understand that this
was a mistake. We would ask that the trust fund in fact be
reauthorized and that it receive full funding, and that the
obligation of the Navajo Nation to repay the Navajo
Rehabilitation Trust Fund be lifted. The coal resources at the
Paragon Ranch were to be the source of funds to repay the
United States. However, Paragon Ranch has not been developed as
expected, and no significant development is anticipated in the
foreseeable future.
Notably because of the lawsuit authorized by the relocation
law which created unexpected liabilities of the Navajo Nation,
the Navajo Nation has already paid the Hopi Tribe approximately
$40 million to settle several cases. The Navajo Nation is not
in a position to pay back the trust fund. The greatest cost of
the relocation program has been housing, the majority of which
has been completed. The costs that remain relate to items that
support the relocation process or assist the Navajo Tribe or
Hopi Tribe in meeting the burden imposed by the relocation law
and are therefore very important.
Unfortunately, only a small fraction of the budget of the
Office of Navajo Indian Relocations has been spent on this
important component of the relocation process. We believe that
the United States must finish the job with regard to Navajo-
Hopi land dispute and assure that all those who have been
adversely affected by the relocation law have a chance at a
decent life.
As a matter of comparison, I would like to note that the
entire cost of the Federal Government over the last 36 years of
the Navajo-Hopi land dispute is roughly equal to what the
United States spends in Iraq every 36 hours.
Another high priority of the Navajo Nation is
rehabilitating the Bennett Freeze area. I do support the
statement that has been made by the chairman and Senator Inouye
regarding that.
Due to a 39-year Federal construction freeze, the Bennett
Freeze Navajos are the poorest of the poor. We hope that all
parts of the Freeze will be lifted in the near future and truly
rehabilitation of this area can begin. I am happy to learn from
your staff of your support for addressing this issue. The
sooner we can develop a specific approach, the better. It would
make sense to make the Office of Navajo-Hopi Indian Relocation
to carry out the Bennett Freeze rehabilitation as they have
hard-won expertise at working in the western Navajo area.
Of course, there should be no forced relocation of Navajo
families. About eight Navajo families who continue to live on
HPL have refused to sign the accommodation agreement. There is
real hope that arrangement among the parties can be made to
allow these families to remain on their ancestral land. We
believe S. 1003 should support this approach, rather than
reinforce the deeply troubling idea that Navajo families will
be forcefully removed from land that they have called home for
generations.
We urge the Senate Committee on Indian Affairs to schedule
a hearing on the Navajo Nation in order to facilitate
participation by the people most affected by the land dispute
and to provide the opportunity to visit affected areas and
families in order to deepen the committee's understanding of
the long-lasting effects of this relocation law.
Thank you for your consideration of these remarks. I look
forward to working with the Committee as it considers S. 1003.
Thank you.
[Prepared statement of Mr. Bitsuie appears in appendix.]
The Chairman. Thank you very much.
Chairman Taylor, welcome.
Mr. Attorney General, did you have an opening statement?
Mr. Denetsosie. Yes; I do.
The Chairman. It better be a short one.
STATEMENT OF LOUIS DENETSOSIE, ATTORNEY GENERAL, THE NAVAJO
NATION
Mr. Denetsosie. Thank you, Senator McCain and members of
the Senate Committee on Indian Affairs.
I would just like to summarize my testimony.
The Chairman. Without objection, your full statement will
be made part of the record.
Mr. Denetsosie. I will submit the written testimony for the
record.
I would just like to address four aspects of the
legislation. I think that on the existing land claims
litigation between the two tribes, we would agree with the
committee, and also I have had a chance to review Chairman
Taylor's testimony that the legislation should not amend the
laws with respect to that ongoing litigation, specifically the
so-called Owelty case. That case is near completion and we just
need to complete that. Judgments have been entered twice by the
Court of Appeals and litigation should just continue. We ask
that section 2 of the bill be deleted.
With regard to 640(d)(11)(f) and (g), the legislation
creates two offices. I think that causes a lot of confusion for
everyone concerned. The Department of the Interior office
should follow sequentially after the Navajo-Hopi Indian
Relocation Office is taken out of commission. With regard to
640(d)(13)(d) and 640(d)(14)(i), we do have a problem with the
September 30, 2005 date for close of certification. We
understand that that will be extended to 2008. We would agree
with that.
And finally, the legislation creates a new appeals process
to take the appeals of benefit certifications to the Court of
Appeals. We believe that is unnecessarily cumbersome and
probably not the best use of judicial resources. We believe
that the current procedures should be kept in place to allow
for appeal to the Federal District Court.
With that, Senator, I agree with you. A lot of good men
have tried to resolve this dispute. I think the dispute has
proven to be bigger than any of them.
Thank you.
[Prepared statement of Mr. Denetsosie appears in appendix.]
The Chairman. Thank you very much, Mr. Attorney General.
I would like to say that we would like to be in close
communication with you as we move forward with developing this
legislation, particularly in the form of amendments. I thank
you for those recommendations. They sound like they are very
important and helpful ones. And thank you for being here today.
Mr. Denetsosie. Yes; and we look forward to working with
the staff on that during the break.
The Chairman. Thank you, sir.
Chairman Taylor, welcome.
STATEMENT OF WAYNE TAYLOR, Jr., TRIBAL CHAIRMAN, THE HOPI TRIBE
Mr. Taylor. Thank you, Chairman McCain.
The Hopi Tribe appreciates the opportunity to appear before
you today to offer testimony on S. 1003. My name is Wayne
Taylor, Jr. I am the democratically elected chairman of the
Hopi Tribe of Arizona. The tribe has submitted written
testimony in reply to specific provisions of S. 1003.
The Hopi Tribe is grateful for the committee's effort in
attempting to bring to a close the long struggle by the Hopi
people to both protect our aboriginal lands from encroachment
and secure jurisdictional control over those lands. The Hopi
people have lived on our northeastern Arizona homeland since
ancient times. Our original reservation of more than 2.6
million acres established in 1882 by Executive order of then-
President Chester Arthur was only a small portion of our
aboriginal homeland. Since that time, because of encroachment
by the Navajo and action and inaction by the United States, we
have lost over 40 percent of our reservation. We are today
completely surrounded by the Navajo Nation, which overlaps
three States. Many of our sacred and archaeological sites are
no longer on the Hopi lands.
The Navajo-Hopi Indian Settlement Act of 1974 was intended
to resolve more than a century of land disputes between the
Hopi and Navajo Nations. It partitioned disputed lands and
required Hopi and Navajo to relocate off property that belonged
to one tribe or the other. Hopi people years ago moved off
disputed Navajo land. However, more than 30 years after passage
of the 1974 Act, we are still waiting for the Navajo to move
off Hopi land.
S. 1003 should not rewrite existing dispute resolution
provisions between the Hopi Tribe and the Navajo Nation.
Section 102 of S. 1003 could undo years of litigation
between the Hopi and Navajo in the courts of the United States.
The bill affects the Owelty lawsuit provision of the 1974 Act
by changing the Owelty decisionmaker from the Federal District
Court to the Secretary of the Interior.
The bill also changes how Owelty is calculated. The Owelty
case was decided at the District Court level by two judgments,
both of which were appealed to the Ninth Circuit Court of
Appeals. The case is now on remand to the District Court for
further proceedings. The Hopi Tribe opposes any changes to the
Owelty provision of the 1974 Settlement Act.
S. 1003 is intended to complete the work of relocating
Navajo off Hopi lands and close off the Navajo-Hopi Indian
relocation by 2008. We certainly welcome those goals, which
under the 1996 Settlement Act were supposed to be completed in
2000.
However, we are concerned that the deadline will prejudice
the rights and interests of the Hopi Tribe.
S. 1003 will be effective only so long as it enables the
Hopi Tribe to retain complete jurisdiction over all its
reservation lands are provided in 1974 Act. S. 1003 states that
relocation duties remaining after 2008 be turned over to the
Department of the Interior, Bureau of Indian Affairs. The Hopi
Tribe believes all relocation be completed before the Office is
closed. We do not believe the BIA, which is already
overburdened, is equipped to handle relocation. In addition,
the BIA has trust responsibility to both the Hopi and Navajo
Nations. Injecting the BIA into the relocation matter may be a
breach of the Federal trust responsibility that BIA has to both
tribes.
The Hopi Tribe fears that provisions of S. 1003 may delay
final relocation. The bill provides that relocation funds may
be placed into a trust for heirs of those who refused to
relocate, rewarding them for continued illegal occupation of
Hopi lands. While the bill establishes removal eviction
requirements, it leaves much to the discretion of the U.S.
Attorney. Evictions should be mandatory and deadlines or
appeals should not stretch the process beyond 2008.
Finally, we are concerned that the Office of Relocation
receives sufficient time and funding necessary to complete its
work. Certification deadlines for applying for relocation
benefits must be reasonable and not arbitrary as to encourage
legal challenges and other delays. Congress must provide the
Office of Relocation with funding necessary for such
substantive work as building houses for relocated families.
My people are faced with many challenges, Senator, some of
which you have described, high unemployment, inadequate
housing, lack of economic development on a semi-arid and remote
homeland, and the erosion of our cultural traditions and our
way of life. We are faced with a very real thirst for survival.
Too much of our time and resources have been spent in a
seemingly endless struggle to preserve and protect what has
been ours for two millennium, what is most precious to us than
life itself, our homeland.
The Hopi people ask that this committee help us in ending
this tortured chapter in our existence so that we may finally
move on to the creation of a viable homeland for future
generations.
Chairman McCain, let me again thank you and members of this
esteemed committee for this opportunity to testify before you
today. I am ready for any questions.
[Prepared statement of Mr. Taylor appears in appendix.]
The Chairman. Thank you very much.
President Shirley and Chairman Taylor, suppose that you had
dictatorial powers. What would you do about the Bennett Freeze?
What would be your solution to the Bennett Freeze issue? We
will begin with you, President Shirley.
Mr. Shirley. I do not know if I want dictatorial powers,
Senator
The Chairman. Some say the president of the Navajo Nation
has close to it. [Laughter.]
Seriously, in other words, if you had a magic wand and
said, okay, this is the way we settle the Bennett Freeze. This
is important because we are going to try to address that issue.
Mr. Shirley. I hope there is a time, Senator, when the Hopi
Nation and the Navajo Nations live together harmoniously. I
guess I would like to get back to that. I know many of our
children are inter-married, meaning that Navajo people are
married to Hopi people, and so we have children who are Hopi
and Navajo. I think also with the Hopi Nation. I think the two
nations at this point in time, and working with Chairman Taylor
and with the Council to try to resolve just that, the Bennett
Freeze. We have not resolved it. Hopefully, we begin to see the
harmonious relationship that has gotten away from us and to
begin to develop our lands the way we should. That is what I
would like to see.
The Chairman. You would like to see it lifted?
Mr. Shirley. Yes; I would like to see it lifted, sir. I
think that is what we need.
The Chairman. Chairman Taylor.
Mr. Taylor. Chairman McCain, the 1934 Land Settlement Act
is in litigation between the two tribes, as you well know. We
have been waiting on the District Court to pick this matter
back up. We have waited for a very long time. It is still on
the docket.
The Chairman. Let me ask you this. Suppose we lifted the
Bennett Freeze tomorrow. What do you think would ensue on the
Bennett Freeze? Would it be chaos? Would it be people trying to
move in on other people's land? What do you think would happen?
Mr. Taylor. Chairman McCain, in fact what I was getting
ready to say is we have been in the negotiations, and in fact
have reached agreement and have developed a compact which would
settle this lawsuit. In fact, the Hopi Tribal Council has
already ratified this agreement and we are awaiting on the
Navajo Council to do likewise.
The Chairman. And roughly the outlines of that agreement
would be?
Mr. Taylor. The lands have been largely partitioned. What
is remaining, Chairman McCain, are in the case of the Hopi, the
sacred sites, the religious sites that we have remaining on the
Navajo 1934 areas. We want those areas to be protected and we
want to have access to all those areas so that we can continue
to practice our religious duties and responsibilities.
The Chairman. President Shirley, your version of this
compact?
Mr. Shirley. We are very diligently working together, the
two nations, to come to agreement about the compact, sir. I
think if we can continue to do that, I think in short order we
will have that agreement. The Navajo Nation Council has been
apprised of it. They are looking at it. I think, God willing,
maybe we will have an agreement.
The Chairman. Within the year?
Mr. Shirley. Giving caution, I would like to see it within
the year.
Mr. Taylor. Chairman McCain, again the Hopi Tribal Council
has already approved the compact. We are anxious to see it
happen this year. That would, in effect, also lift the Bennett
Freeze.
The Chairman. Mr. Attorney General, do you have a comment
on that?
Mr. Denetsosie. Thank you, Senator. The terms of the
compact are subject to a confidentiality agreement.
Unfortunately, we cannot really divulge the details in it. The
negotiations involve a senior judge of the Ninth Circuit Court
of Appeals as the mediator. He also signed onto the
confidentiality agreement, so we are very cautious about that.
It is impossible to predict when the two tribes will carve
out the final terms. Like we said, it could be this year or it
could be next year. That is the best we can say, but we look
forward to the assistance of the United States, not only the
Department of the Interior, Fish and Wildlife, and the United
States Senate in helping us resolve this quite in the near
future, I hope.
The Chairman. Well, I do not have to tell any of the
witnesses that it is a national shame and disgrace the
conditions that exist in the Bennett Freeze area. It is long
overdue that addressed it, and I hope that this compact or
agreement may be consummated as soon as possible so we can let
those people get on with some kind of development. President
Shirley, so keep us informed, would you?
The Paragon Ranch in New Mexico was purchased with the
intent that the coal reserves would generate revenues that
would in turn reimburse the Navajo Rehabilitation Trust Fund.
It is my understanding there is no coal resources that are
producing.
What do you intend to do with this land?
Mr. Shirley. I will go ahead and have our Attorney General
answer that, sir.
The Chairman. Sure, whichever you want to.
Mr. Denetsosie. Honorable Senator, the land has not been
transferred to us at this point in time because of appeals by
the existing owners of the preference right lease applications.
It is not for lack of effort on our part, but there have been
appeals within the Bureau of Land Management and the appeals
involve litigation. For those reasons, we still have not
acquired the resources. When we do get the resources, then we
can look at the opportunities available for development of the
coal resources. It is something that is ongoing. There is a
separate bill, as you are aware, through the Natural Resource
Committee of the Senate to try and resolve that issue at this
time.
The Chairman. Mr. Bitsuie, $16 million was appropriated for
the Rehabilitation Trust Fund. I understand that after the
conceptual framework was signed, these funds went into an
interest-bearing account that accrued an additional $8 million.
I understand that $11 million of that fund remains.
The appropriations were made between 1990 and 1995. Why has
there been a 10-year delay in spending that money?
Mr. Bitsuie. Mr. Chairman, the Federal Government loaned
the Navajo Nation $16 million to fund the trust fund. We have
spent on community housing and other similar projects about $15
million to $16 million. But the original loan has also
generated another $8 million in interest, which is roughly the
unexpended amount remaining in the account. We are using the
interest from the $8 million to fund further projects. The $8
million itself has been earmarked by the Navajo Nation for
critical land purchases. Those land purchases have not been
completed as the Navajo Nation is being extremely careful in
seeking to acquire lands that will actually generate revenue
for addressing the adverse impact of the land dispute for years
to come.
We are stretching out and maximizing the value of the trust
fund. Land is very important in Navajo culture. For years, the
policy of the Federal Government has been to increase tribal
self-determination. In our judgment, we have appropriately
allocated the resources from the trust fund.
The Chairman. Well, in my view, you haven't. It was
appropriated 10 and 15 years ago, and it has not been spent.
I am sure that if that had been the conditions under which
it was appropriated, the money would not have been
appropriated.
Mr. Bitsuie, the Land Commission received $1.5 million in
1998 from the Trust Fund to build or improve 48 replacement
homes on the HPL. What is the status of this project? That has
only been 7 years.
Mr. Bitsuie. The Navajo Nation allocated $1.5 million from
the Trust Fund for the construction of 48 homes on Hopi
partitioned land. Under the accommodation agreement that has
been entered between the Navajo Nation and the Hopi Tribe, we
were instructed to use or identify the land or have the land
withdrawn for the accommodation signers to use the land within
a certain period of time. So the money was made available.
The $1.5 million only represents about one-half the cost of
those homes. In an effort to stretch trust fund dollars, we
reached an agreement with the Navajo Housing Services that they
would provide labor. Unfortunately for their own financial
reasons, the Navajo Housing Services was not able to fulfill
its contractual commitment. Six homes were not built, but most
of the other 42 have significant problems.
The Navajo Nation recently has committed another $800,000
to fix the homes and complete the projects. When complete, the
total cost of this project to the trust fund for 48 homes of
$2.3 million is still a bargain. Today, it would cost about
$100,000 per home, as was provided by the Relocation
Commission, Mr. Bavasi. To build these homes, it would cost
approximately $4.8 million. But we will complete the homes at a
cost of one-half of that amount, Mr. Chairman.
The Chairman. So if we waited another 20 years, it would
probably cost $1 million per home, so we should wait longer. Is
that the logic that you are giving me, Mr. Bitsuie?
Mr. Bitsuie. We are on a timeframe that we will complete
the renovation of these homes by the end of this year, as well
as the six homes that were not constructed, Mr. Chairman.
The Chairman. Thank you very much.
Could I just ask, how often, President Shirley, do you and
Chairman Taylor communicate with each other?
Mr. Shirley. We communicate as often as is needed, sir, on
the different issues relative to the Bennett Freeze or
whatever.
The Chairman. So you have good lines of communication?
Mr. Shirley. Yes; we do.
The Chairman. Chairman Taylor.
Mr. Taylor. We do. Mr. Chairman, we do communicate quite
frequently. This is just one of a number of issues that we are
dealing with. We are working together to preserve the Mojave
plant, which is a major part of the economic revenue stream for
the two nations. That also is another matter that takes
tremendous amounts of our time. We do work together with our
teams on those projects.
The Chairman. I suggest that there are a lot of issues now,
maybe more than in the past, that exist that are in the mutual
interests of both tribes. As you mentioned, the Mojave
powerplant situation, housing, the Bennett Freeze, pending
compacts between the two tribes. I would suggest that you two
schedule a regularly scheduled meeting as happens between
leaders that have issues of mutual interest, so that you can
have an agenda, meet and see what can be resolved and report
back to the tribal councils and the Hopi and Navajo people.
It is my suggestion, given the number of issues that exist
that are in the mutual interest of both tribes that you
establish a set of regularly scheduled meetings between the two
of you, at least in this period while we are addressing major
issues that affect both tribes. I encourage it. I am not saying
that you must. I am just saying that it would be helpful to us
to know the agenda that both tribes are pursuing, the Navajo
Nation and the Hopi Tribe are pursuing, in order to try to
achieve some of these goals.
I think I started this hearing, and maybe I should close it
by saying that when Congress gets involved in issues such as a
land dispute, many times the law of unintended consequences is
going to prevail. I do not think anyone thought that in 1974
that we would be sitting here 31 years later without some of
these issues having been resolved. I think that if in 1974 if
the two tribal leaders had been able to sit down and negotiate
these issues out that we would be discussing other important
and compelling issues like education, like health care, like
housing. There are a number of issues that clearly the Federal
Government has not fulfilled its responsibilities to either
tribe. I would like to be able to put these issues behind us so
that we can concentrate on providing proper health care,
education and housing to both tribes, which we all know is
terribly lacking and behind the rest of the Nation.
Do you have any comment, Chairman Taylor.
Mr. Taylor. Mr. Senator, I think you are very much on
point. I could not agree with you more.
The Chairman. President Shirley.
Mr. Shirley. A point well taken, sir. I totally agree.
The Chairman. It all, I think, is going to depend on, a lot
of this is going to depend on the cooperation between the two
or you elected leaders. I am pleased to see that this
relationship has matured in a way that perhaps was not the case
in previous Administrations in both organizations.
Mr. Attorney General, it is always a pleasure to see you
again. Do you have any other comments you would like to make?
Mr. Denetsosie. I am ready to leave for the Southwest.
[Laughter.]
The Chairman. Mr. Bitsuie.
Mr. Bitsuie. Thank you very much, sir.
The Chairman. Thank you very much. We will work very
closely with you as we proceed on this issue. Thank you very
much.
This hearing is adjourned.
[Whereupon at 10:47 a.m., the committee was adjourned, to
reconvene at the call of the Chair.]
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A P P E N D I X
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Additional Material Submitted for the Record
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Prepared Statement of Christopher J. Bavasi, Executive Director, Office
of Navajo and Hopi Indian Relocation
Mr. Chairman and members of the committee, good morning. I
appreciate the opportunity to come before you today to provide
testimony and answer any questions you may have regarding the Office of
Navajo and Hopi Indian Relocation and its position on the pending
legislation.
In early June of this year, I and my staff met with members of the
committee staff, in Flagstaff, AZ for the purpose of giving comments on
the original draft of S. 1003. The Office is in agreement with the
legislation's projected date for completion of relocation and transfer
of any remaining functions to a newly created Office of Relocation
within the Department of the Interior. I understand that the
Administration opposes the language concerning enhanced retirement
computation and the Office of Personnel Management will be in touch
with the committee in regards to these concerns. Committee staff have
already made some changes to the proposed legislation based on
recommendations from the Office and we believe the remaining
recommendations that the Office will put forth below are sufficiently
important to the efficient and timely completion of our mission and the
closure of the Office, that they should be implemented.
For convenience, the comments below are made by reference to page
and line numbers of the most recent version of S. 1003.
Page 13, lines 3-7. This change carries forward the Secretary's
authority to take lands into trust acquired under section 1B, but has
omitted the authority to take into trust lands described under section
1A. Land selection has not been completed in either of these categories
and therefore, the Secretary's authority to take lands into trust
should extend to both categories. The Office would therefore, recommend
that page 13, line 5 read, (1)(A) (1)(B).
Page 19, lines 11-13 and lines 23-25, page 52, lines 22-24 and page
59, line 25. These three citations all deal with the termination of
ONHIR authority, the establishment of the Office of Relocation within
the Department of the Interior and the date of commencement of the
Secretary's authority over transferred relocation activities. The
original draft of the legislation included a date of September 30, 2008
for the termination of ONHIR and the transfer of the functions to the
Secretary. The original draft of the legislation stated that the
Secretary's authority commenced with the enactment of the legislation.
In the most recent version of the proposed legislation that has been
corrected to indicate that the effective date of the Secretary's
authority will be September 30, 2008. The only date not in synch with
these two dates is the date of the establishment of the Office of
Relocation within DOI which still reads October 1, 2006. The Office
recommends that the date for the establishment of the Office of
Relocation within the Department of the Interior be changed to
September 30, 2008 so that all three dates are consistent.
Page 22, line 16-19. This section states; ``(d) P Prohibition.--No
payment for benefits under this act may be made to any head of
household, if as of September 30, 2005, that head of household has not
been certified as eligible to receive the payment.'' The Office has
several comments in regard to this language.
(a) The prohibition conflicts with page 20, line 10-24 and page 30,
line 1-2 of S. 1003 which provides that ``a final determination is made
by ONHIR for each appeal described in paragraph (1) by not later than
January 1, 2008.
(b) The prohibition conflicts with page 28, Line 15-23 of S. 1003
which requires that eligibility determinations be made by ONHIR,
``before July 1, 2008, but not later than 90 days after receiving a
notice of the imminent removal of a relocatee. . . .''
(c) The prohibition conflicts with page 30, line 4-25 which
requires the Commissioner to provide notice not later than 30 days
after the enactment of the Navajo Hopi Settlement Act of 2005 to
individuals who may have a right to a determination of eligibility.
(d) This prohibition also conflicts with the Office's recently
arrived at agreement with the Navajo-Hopi Legal Services Program to
accept certain late applications and certain appeals under very strict
guidelines to prevent the possibility of litigation on these clients.
It is anticipated that fewer than 20 heads of household will become
eligible under this agreement with the Navajo-Hopi Legal Services
Program. However, more time is required to complete the review of these
cases and the prohibition as stated above, would not allow the Office
to fulfill its side of the agreement.
(e) The Office, therefore, recommends that the date in the above
citation be changed to September 30, 2008 for all of the reasons stated
above, as well as for the reason that it makes all of the transition
and completion dates consistent.
4. Page 30, lines 4-25. The steps outlined in the referenced
sections have already been accomplished. The Office recommended this
language in the 1996 legislation in order to provide an organized
vehicle for completing notifications and certifications prior to
termination of the agency. Since the legislation was not enacted, the
Office implemented these steps under its regulations. To include this
language might necessitate the Office repeat steps already taken and
might open the door to further relocations and/or litigation. The
Office recommends eliminating this entire section.
5. Pages 47 and 48, section 202. The draft legislation cites an
outdated section of title 5 (5 U.S.C. 5597) which was DOD's original
authorization to provide separation incentives without OPM approval.
DoD has since updated their Voluntary Separation authority under the
NSPS law, 5 U.S.C. 9902 (see P.L. 108-136, sec. 1101). We can use the
existing voluntary separation authority under 5 U.S.C. 3523, recently
updated under the Homeland Security Act (P.L. 107-296, sec. 1313). This
updated separation authority gives the agency head the option of
offering $25,000 or less for separations and provides the agency great
flexibility in determining how, when, and under what conditions these
incentives will be offered--with OPM approval.
Mr. Chairman, That concludes my formal statement. I would be happy
to try to answer any questions the committee has for me and we look
forward to working with the committee to refine this legislation.
______
Prepared Statement of William P. Ragsdale, Director, Bureau of Indian
Affairs, Department of the Interior
Mr. Chairman and members of the committee, my name is William P.
Ragsdale. I am the Director of the Bureau of Indian Affairs (BIA). I am
pleased to be here today to provide the Department's views on S. 1003,
a bill to amend the Navajo Hopi Land Settlement Act of 1974. We applaud
Senator McCain for his efforts to bring this 150 year dispute to a
close. Although, we cannot support the bill as written, we would like
to work with the committee to achieve a favorable result.
On December 16, 1882, President Chester Arthur signed an Executive
order that set aside approximately 2.5 million acres of land in
northern Arizona for the Hopi Tribe and ``such other Indians as the
Secretary may see fit to settle thereon.'' At the time of the 1882
Executive order, there was a small but indeterminate number of Navajos
residing on the portions of the reserved lands. Throughout the 1890's
and to this day, members of the Hopi tribe and the Navajo Nation have
disputed the right to occupy lands within the 1882 reservation. In
1962, the Federal District Court ruled that both the Hopi Tribe and the
Navajo Nation had joint rights to use the 1882 Executive order
reservation lands. The joint use proved unworkable. In 1974, Congress
enacted legislation to resolve the joint use rights by partitioning the
land and relocating members of each tribe from lands adjudicated to the
other tribe. The 1974 Act provided relocation benefits to tribal
members residing on lands partitioned to the other tribe, and
established the Navajo and Hopi Relocation Commission to provide those
benefits. To date, all Hopi families that were residing on Navajo land
have been relocated and approximately 90 Navajo families are in some
stage of the relocation process.
S. 1003 The Department has several concerns with S. 1003. S. 1003,
proposes to terminate the Navajo and Hopi Indian Relocation Office
(Relocation Office) in 2008 and transfer any remaining responsibilities
of the Relocation Office to the BIA. At this point, as the Relocation
Office is an independent agency, we are uncertain what responsibilities
would be transferred or the policies in effect at the Relocation Office
and therefore, we do not know exactly how this legislation would impact
the BIA. In addition, in light of not knowing the universe of
responsibilities that the BIA would be responsible for, we are
concerned that the BIA does not have the necessary expertise or
resources to complete the work of the office. We have recently started
a dialog with the Relocation Office to determine the work the Office
has accomplished and the manner in which it operates. We expect to
learn the funding details for these activities from the Relocation
Office which will assist us in identifying any limitations.
Furthermore, any transition would take time and could further delay
any relocation activity. There are currently about 90 families that are
in some phase of the relocation process. Eight of these families are
resistant to signing an accommodation agreement, and a number of
appeals are also in various phases of the appeals process. Any
agreements will require significant coordination with the Navajo
Nation. It is difficult to predict how many of these cases will be
resolved prior to relocating and then ultimately terminating the
Relocation Office, especially considering the complex history of this
relocation effort. Although under the Commission's published
regulations the time for filing applications for relocation assistance
has expired, applications continue to be filed. Therefore, we suggest
specific deadlines be included in the bill of when applications for new
housing and any appeals have to be filed. Without some specific
timeframe, it will be extremely difficult to assess the BIA's future
workload.
The BIA is also concerned with building houses for the relocated
families. The BIA has a very small program to assist tribes in their
pursuit of funding for housing repairs or renovations. We would suggest
including the Department of Housing and Urban Development in any
discussions pertaining to housing assistance.
The Administration objects to the proposed language which would
provide enhanced retirement benefits to Office of Navajo and Hopi
Relocation employees as this is unfair compared to the benefits
available to other similarly situated Federal employees. The
legislation also does not keep the Retirement Trust Fund whole for the
increased cost of these benefits. In addition to the Administration's
objection to the retirement provisions, the Administration also has
concerns with the new separation pay authorized in section 202. S. 1003
cites an outdated section of title 5 (5 U.S.C. 5597), which was the
Department of the Defense's (DOD) original authorization to provide
separation incentives without Office of Personnel Management approval.
DOD has since updated their Voluntary Separation authority under the
National Security Personnel System law, 5 U.S.C. 9902 (see P.L. 108-
136, sec. 1101). Instead, existing voluntary separation authority under
5 U.S.C. 3523, recently updated under the Homeland Security Act (P.L.
107-296, sec. 1313), should be used. This updated separation authority
gives the agency head the option of offering $25,000 or less for
separations and provides the agency flexibility in determining how,
when, and under what conditions these incentives will be offered--with
OPM approval.
Finally, we request that great care be taken to ensure that
property interests are not impacted by any changes contained in the
legislation.
This concludes my prepared statement. I will be happy to answer any
questions you may have.
______
Prepared Statement of Joe Shirley, Jr., President, Navajo Nation
Good Morning Chairman McCain and Ranking Member Dorgan. I thank you
for the opportunity to discuss the Navajo-Hopi Land Settlement
Amendments with the committee this morning. My name is Joe Shirley,
Jr., I am the president of the Navajo Nation. The Navajo Nation last
appeared before this committee regarding the Navajo--Hopi Land Dispute
in 1996. Since then five Congresses and two Administrations have had
little interest in the Navajo-Hopi Land Dispute. The Navajo Nation and
the Hopi Tribe, during that same period, have made significant progress
by working in a more collaborative approach with each other to resolve
aspects of the land dispute. These joint efforts between the Navajos
and Hopis appears to be moving both tribes to the conclusion of the
land dispute. Following passage of the Navajo-Hopi Land Dispute
Settlement Act of 1996 and this committee's consideration in the 104th
Congress of S. 2111, a bill with similar intent to this bill, there has
been no action by this committee regarding the Land Dispute. I welcome
this opportunity to discuss the current status of these matters with
the committee.
The Navajo Nation understands from the introductory comments of
Chairman McCain that he is concerned that the relocation process has
cost far more than originally estimated and taken too long to complete.
The Navajo Nation vigorously opposed the Navajo-Hopi Land Settlement
Act of 1974 (``relocation law'') before its passage and actively sought
its repeal for years afterward. The Navajo Nation unfortunately failed
in these efforts. Had the Navajo Nation been successful, the Navajo
people would have been spared a tremendous harm and the Federal
Government would have been spared a great expense. That said, now that
the Navajo people have had to live through the nightmare of relocation,
we do not think Federal budgetary issues alone should be a basis for
limiting funds to complete the program, and doing so in a way that
brings humanity to what has otherwise been an inhumane process. The
chairman is concerned with cost. I ask the committee to consider how
they would estimate the cost of moving an entire town, and how they
would value the economic and social upheaval such a move would impose?
This is what happened to the 12,000 Navajos who lost their land, their
livelihood, and their identity; 12,000 people; approximately the
population of Kingman, AZ. How much would it cost to relocate the
entire population of Kingman, to the Phoenix area? One billion dollars?
Two billion dollars? How long would it take if the funds were
appropriated bit-by-bit over 30 years? What would be the impact if the
land these people were expected to relocate to was already populated?
What would happen if these people suddenly had to unlearn their skills
as farmers and learn to survive in a cash economy? How long would be
too long? How much would be too much?
By far the greatest cost of the relocation program has been
housing; the majority of which has been completed. The costs that
remain relate to items that support the relocation process or ``assist
the Navajo Tribe or Hopi Tribe in meeting the burdens imposed'' by the
relocation law (25 U.S.C. 640d-25) and are, therefore, very important.
Since 1996, the Navajo Nation and the Hopi Tribe have settled three
major pieces of litigation: The Use Case that arose from 25 U.S.C.
Sec. 640d--17(a) (2); the Damage Case that arose from 25 U.S.C.
Sec. 640d--17 (a) (3); and the Tax case that arose from 25 U.S.C.
Sec. 640-d7 and the continued joint ownership of minerals between the
Navajo Nation and the Hopi Tribe. The Use and Damage Cases concluded in
1999 when the Navajo Nation paid the Hopi Tribe $29.1 million, and the
Hopi provided the Nation with Satisfactions of Judgment in both the Use
and Damage Cases. Nothing remains of these lawsuits. Similarly, in
2002, the Navajo Nation and the Hopi Tribe settled the Tax Case with a
significant payment, equal to one-half of the taxes from the Black Mesa
Mine through 2007 were paid by the Nation to the Hopi Tribe.
Currently, with some assistance from the Office of Navajo and Hopi
Indian Relocation (OHNIR) the Hopi Tribe and the Navajo Nation are near
resolving the final aspects of relocation without any Navajo evictions
from the Hopi Partitioned Land (HPL). One of the more significant
issues presented by S. 1003 in relation to this potential for forced
evictions is one of timing. Currently, S. 1003 requires OHNIR to
certify eligibility of all outstanding claims by September 30, 2005. I
understand that this date will be revised to September 30, 2008, such a
change should avoid the need for any forced relocation of Navajos
because the contemplated agreement can be implemented. Ideally, if more
time is needed to complete these efforts with the specter of eviction
that time should be afforded. This is especially true where interested
parties are working together to complete difficult tasks.
Another major concern of S. 1003 relates to the Navajo Nation's
need and ability to address the impacts of both the 1966 Bennett
Freeze, and the 1980 Statutory Freeze in the western portion of the
Navajo Nation. Between the administrative and statutory prohibitions on
development the Nation is faced with approximately 1.5 million acres of
its reservation that have had no meaningful development since before
1966. In 1997, The Navajo Nation and the Hopi Tribe entered into a
stipulation in the District Court that limited the development ban to
approximately 700,000 acres that are currently subject to pending
litigation. Upon resolution of the 1934 Act Reservation Case presumably
the ban on development will cease, but these lands and its
approximately 5,000 residents will require special attention to bring
them up to the standards of other parts of the Navajo Nation. It is my
understanding that the committee has chosen to address the Bennett and
Statutory Freeze issues in subsequent legislation and not in S. 1003. I
therefore raise these issues to reinforce their importance to the
Navajo Nation.
S. 1003 raises other areas of specific concern including:
First, rehabilitation efforts should be focused on the Navajo
Partitioned Land (NPL). The NPL Navajo communities have borne much of
the cost of the relocation, having absorbed thousands of relocatees and
their livestock in an area that has long been at, or over, capacity.
The NPL's extremely limited infrastructure, already overtaxed by the
influx of relocatees, was further constrained by the construction
freeze that was in place from 1963 until approximately 1979. This
infrastructure continues to be grossly insufficient to meet the current
needs resulting from the relocation law.
Second, the relocation law currently authorizes the Commissioner to
make grants ``which significantly assist the Commissioner or assist the
Navajo Tribe or Hopi Tribe in meeting the burdens'' of the law (25
U.S.C. 640d-25). S. 1003 would strike this provision (Section 122), but
this is the very provision that provides ONHIR the flexibility to
address the needs of families and communities as they arise. Pursuant
to this provision, the Navajo Nation has proposed various projects such
as a community center for the Navajo families that have signed
Accommodation Agreements with the Hopi Tribe, range and road
improvement, power line extensions, and some housing improvement for
heavily impacted NPL host families. Although OHNIR has not yet approved
any of these proposals, they are exactly the kind of projects that
bring humanity to the relocation process while addressing the real
needs that resulting from the process. Notably, the draft substitute
bill that the committee staff have released would restore the
discretionary fund authorized by this section, but would not retain the
directing guidance that the funds are to be used to ``assist the Navajo
Tribe or Hopi Tribe in meeting the burdens'' of the law. The
legislation should preserve this guidance.
Third, the Navajo land selections in New Mexico should not be
prejudiced. Section 107(c) of S. 1003 provides that the authority of
the Commissioner to select lands in New Mexico shall terminate on
September 30, 2008. Since the Commissioner's authority would terminate
on that date, it is not clear that this authority would continue in the
new Office of Relocation at the Department of the Interior. The Navajo
Nation has not yet completed its New Mexico land selections due largely
to circumstances beyond its control. Completion of some of those
selections is the subject of legislation introduced in this Congress,
specifically S. 692, the Bisti/PRLA Dispute Resolution Act. The Navajo
Nation is concerned that this provision in S. 1003 could impact that
selection process and potentially prejudice Navajo interests. This
authority should be carried over in to the Department of the Interior
if the selections are not completed by September 30, 2008.
Fourth, the transfer of ONHIR's Responsibilities to the Department
of the Interior. ONHIR has developed critical and hard-won experience
in working on and near the Navajo Nation and is ideally suited to
addressing the rehabilitation of the Bennett and Statutory Freeze
areas. Based on this institutional knowledge ONHIR should not be
eliminated, although it certainly can be downsized. However, whether
ONHIR is maintained, or its responsibilities are transferred to a new
Office of Relocation in the Department of the Interior, it is
critically important to the Navajo Nation that the issues set forth
above are adequately and fully addressed. Only by completing all the
necessary tasks can this chapter be closed without future
repercussions.
I strongly believe that all Navajos want to put the Land Dispute
with the Hopis behind and move forward. In order for the Nation to do
that, the final tasks that will complete Relocation in a just and
humane fashion must be accomplished. One alternative approach that the
committee may want to consider rather than S. 1003 as presently
crafted, would be to evaluate and enumerate all the tasks that ONHIR
needs to perform to finish its tasks, with input from the Navajo Nation
and the Hopi Tribe, then set out a reasonable timeframe to accomplish
those tasks. That timeframe could be used as a period that begins after
passage of the legislation to complete the tasks identified. Such an
approach may not have worked prior to 1996, but in the present
collaborative era the Nation, ONHIR, and the Hopi Tribe can devise a
plan to take these final steps. The Navajo Nation wants this dispute
behind us, but we do not want to leave individuals behind.
In addition to my comments, the Navajo Nation attorney general has
prepared comments on certain specific legal issues presented by S.
1003. Those matters are also of special concern because of their impact
on cases currently pending in the Courts or the impact these provisions
may have on individuals seeking relocation benefits. Roman Bitsuie, the
executive director of the Navajo-Hopi Land Commission Office, will
discuss the efforts of the Office to serve the relocatees.
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