[Senate Report 110-462]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 967
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-462

======================================================================



 
A BILL TO REPEAL SECTION 10(F) OF PUBLIC LAW 93-531, COMMONLY KNOWN AS 
                         THE ``BENNETT FREEZE''

                                _______
                                

               September 15, 2008.--Ordered to be printed

                                _______
                                

    Mr. Dorgan, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 531]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 531), to repeal section 10(f) of Public Law 93-531, 
commonly known as the ``Bennett Freeze,'' having considered the 
same, reports favorably thereon without amendment and 
recommends that the bill do pass.

                                Purpose

    The purpose of S. 531 is to repeal section 10(f), commonly 
known as the ``Bennett Freeze,'' of Public Law 93-531, the 
Navajo-Hopi Land Settlement Act of 1974. Public Law 93-531 was 
originally enacted to settle rights and interests between the 
Navajo Nation and the Hopi Tribe regarding disputed land 
between the two tribes. Section 10(f) was added to Public Law 
93-531 in 1980 (see, Public Law 96-305) to prohibit any 
development on the lands that are in dispute between the Navajo 
Nation and Hopi Tribe. S. 531 will revoke the restriction on 
development, commonly known as the ``Bennett Freeze.''

                         Background and History

    Public Law 93-531, the Navajo-Hopi Land Settlement Act of 
1974, was enacted to settle disputes over lands that have 
existed between the Navajo Nation and the Hopi Indian tribe for 
over a century. The disputes arose from an Executive Order 
signed in 1882 that set aside approximately 2.5 million acres 
of land in northern Arizona for the Hopi Tribe and ``such other 
Indians as the Secretary [of the Interior] may see fit to 
settle thereon,'' and a 1934 Act of Congress setting aside 
lands for the Navajo Nation. Since the Executive Order in 1882, 
members of the Hopi Tribe and Navajo Nation have disputed the 
right to occupy certain lands set aside by the 1882 Executive 
Order. In order to resolve these disputes, Congress passed the 
Navajo-Hopi Land Settlement Act in 1974 (Public Law 93-531), 
which authorized litigation between the two tribes to determine 
each tribe's respective rights to the lands in question.
    In 1962, in the case of Healing v. Jones, the Federal 
District Court ruled that both the Hopi Tribe and the Navajo 
Nation had joint rights to use the lands in dispute. The Court 
held that the Department of the Interior had settled Navajos on 
lands of the 1882 Hopi Reservation through implication, 
indirection and neglect. Thus, the Court found that both tribes 
had rights to certain lands within the 1882 Hopi Reservation. 
The lands comprising this area became known as the ``joint use 
area.''
    Joint use of the land, however, failed between the two 
tribes. The relations between the tribes became so tense over 
the access to sacred religious sites and development on the 
lands that the Commissioner of the Bureau of Indian Affairs at 
this time, Robert Bennett, implemented a freeze on any 
development on the disputed land in 1966. This was termed the 
``Bennett Freeze'' after Commissioner Robert Bennett. The 
freeze forbade any development on the lands at issue in 
litigation, including the building of houses, improvement to 
property, public work projects, power and water lines, publican 
agency improvements, and associated rights of way.
    In 1974, Congress passed the Navajo-Hopi Land Settlement 
Act. This law established a three member Navajo-Hopi Indian 
Relocation Commission to manage the relocation of members of 
the Navajo Nation who were living on the lands set aside for 
the Hopi Tribe and members of the Hopi Tribe who were living on 
lands set aside for the Navajo Nation. The 1974 law 
contemplated that the relocation activities would be fulfilled 
by 1986, and the cost of providing relocation benefits to 
approximately 6,000 Navajos eligible for relocation was 
estimated to be about $40 million. However, the total cost has 
exceeded $500 million.
    In 1980, Congress amended the 1974 Navajo-Hopi Land 
Settlement Act to codify the Bennett Freeze. The goal of the 
amendment was to not allow any development on the disputed 
lands with the consent of both tribes. However, the result has 
been that the Native Americans living in the Bennett Freeze 
region reside in conditions that have not changed since 1966, 
and need to be improved. Only three percent of the families 
affected by the Bennett Freeze have electricity, and only ten 
percent have running water.
    In 2005, the Navajo and Hopi tribes entered into an 
intergovernmental agreement that resolved all outstanding 
issues regarding the land in dispute. The intergovernmental 
agreement clarifies the boundaries of the Navajo and Hopi 
reservations in Arizona and guarantees access to protected 
religious sites of both tribes. The agreement also puts an end 
to the ban on development on the disputed lands. The agreement 
was approved by the Secretary of the Interior in November 2006. 
Therefore, there is no additional need for the Bennett Freeze. 
Both the Navajo and Hopi tribes support this legislation to 
repeal section 10(f) of Public Law 93-531, the Bennett Freeze. 
Further, the Department of the Interior supports this bill.

                          Legislative History

    S. 531 was introduced in the Senate by Senator John McCain 
(R-Ariz.) on February 8, 2007. At a business meeting of the 
Committee, held on June 19, 2008, the Committee on Indian 
Affairs ordered S. 531 to be reported favorably without an 
amendment.

                      Section-by-Section Analysis

    Section 1 is the only section of S. 531. Section 1 repeals 
section 10(f) of Public Law 93-531 (25 U.S.C. 640d-9(f)).

                        Committee Recommendation

    The Committee on Indian Affairs held an open business 
meeting to consider S. 531, and other matters, on June 19, 
2008. During the business meeting, the Committee voted, by a 
voice vote of a quorum present, to report S. 531 favorably to 
the full Senate, without amendment.

                   Cost and Budgetary Considerations

    The cost estimate for S. 531 as calculated by the 
Congressional Budget Office is set forth below:

S. 531--A bill to repeal section 10(f) of Public Law 93-531, commonly 
        known as the ``Bennett Freeze''

    S. 531 would repeal a provision of law, known as the 
Bennett Freeze, that imposed a ban on construction on certain 
lands occupied by the Navajo Nation and the Hopi Tribe in 
Arizona. CBO estimates that implementing S. 531 would have no 
significant impact on the federal budget. Enacting S. 531 would 
not affect direct spending or revenues.
    S. 531 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    In 1966, the Commissioner of the Bureau of Indian Affairs 
placed a construction ban on certain lands in northern Arizona 
due to a longstanding ownership dispute between the Navajo 
Nation and the Hopi Tribe. The freeze, which prohibited any 
additional housing development and restricted repairs on 
existing dwellings, was codified into law in 1980 and limited 
construction until litigation between the tribes was resolved. 
In 2006, the Secretary of the Interior and the tribes signed an 
agreement resolving the land dispute. Enacting S. 531 would be 
the final requirement to repeal the Bennett Freeze.
    The tribes would likely seek funding from the Bureau of 
Indian Affairs and Department of Housing and Urban Development 
for housing construction; those resources are subject to the 
availability of appropriated funds, and S. 531 would not 
authorize funding for those activities. Therefore, CBO 
estimates that implementing the bill, by itself, would have no 
significant impact on the federal budget.
    The CBO staff contact for this estimate is Leigh Angres. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                      Regulatory Impact Statement

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate requires that each report 
accompanying a bill evaluate the regulatory paperwork impact 
that would be incurred in carrying out the bill. The Committee 
believes that S. 531 will have a minimal, if any, impact on 
regulatory or paperwork requirements.

                        Executive Communications

    The only executive communication received by the Committee 
from the Executive Branch was oral and written testimony 
provided by Mr. Jerry Gidner, Director for the Bureau of Indian 
Affairs at the Department of the Interior to the Committee on 
Indian Affairs on May 15, 2008. In his testimony Mr. Gidner 
testified that the Department supports S. 531 and noted that on 
November 3, 2006, Secretary of the Interior, Dirk Kempthorne, 
Navajo Nation President Joe Shirley, Jr. and Hopi Vice Chairman 
Todd Honyaoma signed a historic Navajo-Hopi Intergovernmental 
Compact, resolving a 40-year-old conflict over tribal land in 
northeastern Arizona. Mr. Gidner's full testimony is available 
in the Committee records for the hearing.

                        Changes in Existing Law

    In compliance with subsection 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 531, as reported, are shown as follows: existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman. Enactment of S. 531 would make the 
following changes to existing law:

                           Public Law 93-531


AN ACT Relating to the conflicting rights of the Navajo and Hopi tribes 
of Arizona.

           *       *       *       *       *       *       *


    (e) Tribal Jurisdiction Over Partitioned Lands.--
          (1) Lands partitioned pursuant to this subchapter, 
        whether or not the partition order is subject to 
        appeal, shall be subject to the jurisdiction of the 
        tribe to whom partitioned and the laws of such tribe 
        shall apply to such partitioned lands under the 
        following schedule:
                  (A) Effective ninety days after July 8, 1980, 
                all conservation practices, including grazing 
                control and range restoration activities, shall 
                be coordinated and executed with the 
                concurrence of the tribe to whom the particular 
                lands in question have been partitioned, and 
                all such grazing and range restoration matters 
                on the Navajo Reservation lands shall be 
                administered by the Bureau of Indian Affairs 
                Navajo Area Office and on the Hopi Reservation 
                lands by the Bureau of Indian Affairs Phoenix 
                Area Office, under applicable laws and 
                regulations.
                  (B) Notwithstanding any provision of law to 
                the contrary, each tribe shall have such 
                jurisdiction and authority over any lands 
                partitioned to it and all persons located 
                thereon, not in conflict with the laws and 
                regulations referred to in paragraph (A) above, 
                to the same extent as is applicable to those 
                other portions of its reservation, Such 
                jurisdiction and authority over partitioned 
                lands shall become effective April 18, 1981.
    The provisions of this subsection shall be subject to the 
responsibility of the Secretary to protect the rights and 
property of life tenants and persons awaiting relocation as 
provided in subsections (c) and (d) of this section.
    [(f) Development of Lands in Litigation, Exception.--
          [(1) Any development of lands in litigation pursuant 
        to section 640d-7 of this title and further defined as 
        ``that portion of the Navajo Reservation lying west of 
        the Executive Order Reservation of 1882 and bounded on 
        the north and south by westerly extensions, to the 
        reservation line, of the northern and southern 
        boundaries of said Executive Order Reservation,'' shall 
        be carried out only upon the written consent of each 
        tribe except for the limited areas around the village 
        of Moenkopi and around Tuba City. Each such area has 
        been heretofore designated by the Secretary. 
        ``Development'' as used herein shall mean any new 
        construction or improvement to the property and further 
        includes public work projects, power and water lines, 
        public agency improvements, and associated rights-of-
        way.
          [(2) Each Indian tribe which receives a written 
        request for the consent of the Indian tribe to a 
        particular improvement, construction, or other 
        development on the lands to which paragraph (1) applies 
        shall respond in writing to such request by no later 
        than the date that is 30 days after the date on which 
        the Indian tribe receives the request. If the Indian 
        tribe refuses to consent to the improvement, 
        construction, or other development, the response shall 
        include the reasons why consent is being refused.
          [(3)(A) Paragraph (1) shall not apply to any 
        improvement, construction, or other development if--
                  [(i) such improvement, construction, or 
                development does not involve new housing 
                construction, and
                  [(ii) after the Navajo tribe or Hopi Tribe 
                has refused to consent to such improvement, 
                construction, or development (or after the 
                close of the 30-day period described in 
                paragraph (2), if the Indian tribe does not 
                respond within such period in writing to a 
                written request for such consent), the 
                Secretary of the Interior determines that such 
                improvement, construction, or development is 
                necessary for the health or safety of the 
                Navajo Tribe, the Hopi Tribe, or any individual 
                who is a member of either tribe.
          [(B) If a written request for a determination 
        described in subparagraph (A)(ii) is submitted to the 
        Secretary of the Interior after the Navajo Tribe or 
        Hopi Tribe has refused to consent to any improvement, 
        construction, or development (or after the close of the 
        30-day period described in paragraph (2), if the Indian 
        tribe does not respond within such period in writing to 
        a written request for such consent), the Secretary 
        shall, by no later than the date that is 45 days after 
        the date on which such request is submitted to the 
        Secretary, determine whether such improvement, 
        construction, or development is necessary for the 
        health or safety of the Navajo Tribe, the Hopi Tribe, 
        or any individual who is a member of either Tribe.
          [(C) Any development that is undertaken pursuant to 
        this section shall be without prejudice to the rights 
        of the parties in the civil action pending before the 
        United States District Court for the District of 
        Arizona commenced pursuant to section 640d-7 of this 
        title, as amended.]

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