BIA, Diné, Hopi hope to repeal
Bennett Freeze

By Kathy Helms
Diné Bureau

WINDOW ROCK — On Nov. 3, 2006, Department of Interior Secretary Dirk Kempthorne, Navajo Nation President Joe Shirley Jr. and Hopi Vice Chairman Todd Honyaoma signed the Navajo-Hopi Intergovernmental Compact, lifting the 40-year-old Bennett Freeze.

However, congressional approval still is required to repeal section 10(f) of Public Law 93-531 which instituted the freeze. Recently, the Senate Committee on Indian Affairs held a hearing on proposed legislation introduced in February 2007 by Sen. John McCain, R-Ariz., which would permanently remove the freeze.

Hopi Tribal Chairman Ben Nuvamsa, Navajo-Hopi Land Commission Chairman Raymond Maxx, and Bureau of Indian Affairs Director Jerry Gidner all testified before the Senate Committee in support of the bill. A markup is needed before the bill can be considered by the full Senate.

Gidner said the Intergovernmental Compact put an end to the ban on construction in the disputed area imposed by U.S. Commissioner of Indian Affairs Robert Bennett in 1966. “Commonly known as the ‘Bennett Freeze,’ this ban has greatly affected the use of this land and has been a severe hindrance to the people who live there,” he said.

Navajo and Hopi have been in litigation since 1958 concerning ownership of nearly 10 million acres. With the compact, they have agreed to dismiss litigation, to release each other from claims, and to share funds collected and held by the Department of the Interior for the use of parts of the disputed property.

Gidner said the agreement also provides that U.S. Fish and Wildlife Service will study eagle populations in the disputed area and regulate the use of eagles depending on the size of the population.

Nuvamsa told the committee that the current reservation is but a small part of the Hopi aboriginal lands and only slightly more than 60 percent of the land originally set aside by U.S. President Chester Arthur in 1882.

“Through a long history of action and inaction by the United States, the Hopi Tribe lost over 40 percent of its reservation — approximately 911,000 acres — to the Navajo Nation,” Nuvamsa said. “As a result of Congress’ creation of the 1934 Act Reservation, the Navajo Reservation completely surrounds the remaining lands of the Hopi Reservation.”

The Navajo-Hopi Land Settlement Act of 1974 authorized litigation between the Hopi and Navajo to determine the tribes’ respective rights in both the 1882 and 1934 Act Reservations. “The Bennett Freeze was intended to preserve the status quo between the Hopi and Navajo tribes while the tribes litigated their competing land claims in federal court,” Nuvamsa said.

“Forty years and numerous federal court decisions later, the Hopi and Navajo, realizing that any court ordered solution would be imperfect at best, decided to resolve the dispute themselves,” culminating in the 2006 compact.

Nuvamsa said the agreement not only ends contentious and expensive litigation between the tribes but also grants to the members of both tribes certain religious access and use rights on the lands of the other and “secures to Hopi religious practitioners the right to gather eagles on parts of the Navajo Reservation.”

All that remains is for Congress to amend the 1974 Act to repeal that section of the act that codified the freeze, he said.

Passage of the bill “will symbolize the close of a long and difficult period in the history of our tribes and will set the stage for a new period of optimism,” one which allows pursuit of economic and resource development initiatives rather than litigation, according to Nuvamsa.

“Our cooperative efforts toward this end will benefit not only the Hopi and Navajo, but the nation as well as we jointly move the tribes forward into an era of greater self-sufficiency made possible by mutually beneficial economic development.”

Maxx told the committee that his family was relocated twice by the federal government and now lives in the former Bennett Freeze area. “I have first-hand knowledge of what conditions are like,” he said.

“When we relocated to the Bennett Freeze area in the late 1970s, I don’ t think my parents fully understood that you could not fix your home in the Bennett Freeze; that you could not make additions; that no federal, tribal or state programs could assist your community through the building of infrastructure essential to the health and well-being of any community.”

As a result, families in the Bennett Freeze area were locked into the poverty of 1966, when the freeze was imposed. Maxx said that as long as the authority for the freeze remains in the U.S. Code, there also remains a fear that it could be reimposed.

“Passage of S. 531 would send a powerful signal that all parties have begun the process of moving on from the divisive disputes of the past. It would also ensure that there are no ambiguous interpretations which could lead to the re-imposition of the development freeze.”

Maxx encouraged the committee to hold a field hearing on how the Bennett Freeze area can be redeveloped and what level of federal support should be provided.