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Navajos, Hopis close to settling longtime land dispute

Judy Nichols and Betty Reid
The Arizona Republic
Sept. 24, 2004

More than 700,000 acres of the western Navajo Reservation have been in
limbo for nearly 40 years, caught up in a land dispute with the Hopi Tribe
over access to religious sites.

Construction, including extension of water and electrical lines, has been
banned in the area, leaving thousands of families, mostly Navajo, without
running water, lights or modern appliances.

But now, through the efforts of tribal leaders, lawyers and negotiating
teams on both sides, there is hope of a settlement.

The dispute involves land designated by the government for the Navajos and
has resulted in a federal lawsuit that may be one of the longest in U.S.
history.

The Navajos say that the land is theirs and that they have used it for
generations.

The Hopis say that the land is part of the tribe's aboriginal homeland,
that they used it for thousands of years before the Navajos arrived in the
mid-1800s, and that it contains sacred springs, eagle nesting sites and
shrines vital to the Hopi religion.

The dispute has lasted decades, involving depositions, trials, appeals and
an effort to take it to the U.S. Supreme Court, which failed.

All the while, the area has been under what is called the Bennett Freeze,
named for Robert Bennett, former U.S. commissioner of Indian Affairs, who
in 1966 imposed the ban on construction, including extension of water and
electrical lines, unless approved by both tribes.

"The freeze is intended to prevent one tribe from gaining an unfair
advantage in the litigation by pursuing a strategy of developing the land
with housing and infrastructure improvements and thereby entrenching
itself," Hopi Chairman Wayne Taylor wrote in a letter explaining the
situation.

After decades of wrangling, negotiations have been held for the past two
years, facilitated by 9th U.S. Circuit Judge William Canby Jr.

None of those involved will discuss details, citing confidentiality of the
proceedings.

They express hope that a settlement may be reached in the next few months
but caution that nothing is final and there are still issues to be
resolved.

Through a representative, Navajo President Joe Shirley said he has great
confidence in a possible settlement and the work that has been done to
reach one.

Taylor agreed.

"We want to resolve all these cases that have been a drain on both tribes
in terms of time, energy and resources," Taylor said. "We want to resolve
all of these matters to the best interests and welfare of the two tribes
so we have the ability to focus our time and energy on nation building
issues."

Before going into effect, any settlement must be approved by legislative
bodies for each tribe, federal officials and the courts.

Once approved by the courts, the Bennett Freeze would be lifted,
eliminating the construction ban for people like the Hardys.

Mervin Hardy, 74, and his wife, Alma, 73, who have raised 10 children on
their land at Where the Red Mesas Cluster, near Gap, have two houses, both
wired, waiting for electricity.

"When I looked at the wiring, I almost believed electricity would come,"
Mervin said. "I was ready to turn the lights on."

The newer house has a tub that Alma looks at, dreaming of a warm bath.
Instead, the couple use a Coleman lamp for light at night, cook with
butane and take sponge baths.

Alma weaves during the day when light comes through the windows.

Mervin has had heart surgery three times, replacing three valves over the
past 16 years. He is supposed to watch his diet but says the lack of
refrigeration makes it difficult.

"My doctor recommends fruits and vegetables, but it spoils," he said.
"What's left is bread and apricots from the trees out front."

The Hardys, who still herd sheep, pay $50 a month for a 1,000-gallon truck
of water to be brought to their pen.

"It will be wonderful when it is over, people will live in harmony with no
bitter words, no cloud," Alma said.

Many parts of the vast, rural Navajo and Hopi lands lack utilities even
outside the freeze area, but some of those living in the freeze can see
lights in nearby houses or have power lines running overhead but are not
allowed to tap into them.

The freeze originally encompassed 1.5 million acres.It was reduced in
1997, when the Hopi Tribe agreed to eliminate about 800,000 acres, saying
they contained no religious sites.

The freeze was lifted in 1992, when courts issued one judgment in the
lawsuit, but was reinstated in 1995 when the 9th U.S. Circuit Court of
Appeals said the issue of Hopi religious sites still needed to be
resolved.

The Hopis say they have approved construction requests wherever possible.

One project that has been approved involves 15 miles of electrical line
that will connect as many as 81 customers in the communities of Old
Airport and farther west to Moenave.

In late July, Ruth Tohannie, 66, and several others gathered at a spot
called Dust Covered Cottonwood Trees for the groundbreaking of the
project, scheduled for completion in December.

"It took so long for talk about electricity to come through here,"
Tohannie said. "Sometimes people told us, 'It will happen tomorrow,' but
the project gets delayed again."

Tohannie said she will know the freeze has been lifted when she can drink
a cup of ice water in her own home.

Roman Bitsuie, executive director of the Navajo-Hopi Land Commission,
believes a settlement may be reached by the end of the year.

"It is a major accomplishment by both the chairman and President Shirley,"
said Bitsuie, who said the leaders favor a negotiated settlement to a
court ruling they can't control.

The Hopis and Navajos have been trying to resolve land disputes since
federal officials arbitrarily drew reservation borders in the 1800s.

The most famous was the 1974 court decision that divided more than 1.8
million acres between the two tribes and forced the relocation of about
100 Hopis and thousands of Navajos, the largest forced relocation since
the internment of Japanese-Americans during World War II.

Terry Fenzl, attorney for the Navajos, said the biggest crime is the
culture of the freeze, that for 40 years people have been born and died
with a sense of hopelessness.

"A culture of dispute has been forced on them," Fenzl said. "It has
disrupted families, forced people to leave and give up their ties to the
land. There is no excuse for that."

Fenzl said that, before the lawsuits, the two tribes shared the land for
centuries and were intertwined by marriage.

Tony Robbins, a natural-resources manager for the Navajo Nation, said
lifting the freeze won't solve all the tribe's problems.

In fact, Robbins has mixed feelings, saying the freeze has helped preserve
the Navajo way of life.

With electricity will come television, computers and other inventions.

"It's a double-edged sword," Robbins said. "Because of the freeze, people
have kept traditional. When it's lifted, modern technology will come in."
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