[Senate Report 110-462]
[From the U.S. Government Publishing Office]
Calendar No. 967
110th Congress Report
SENATE
2d Session 110-462
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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originally enacted to settle rights and interests between the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.]
* * * * * * *