Free Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Todd Honyoama, Vice-Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, for and on behalf of the Hopi Indian Tribe, Plaintiffs,

No. CIV 74-842-PHX-EHC ORDER AND FINAL JUDGMENT

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v.
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Joe Shirley, Jr., President of the Navajo Nation, for and on behalf of the Navajo Nation, Defendants.

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Evelyn James, President of the San Juan Southern Paiute Tribe, for and on behalf of the San Juan Southern Paiute Tribe, Intervenor.

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This action came on regularly for trial between October 17, 1989, and February 8, 1990, and again between July 7 and July 21, 1992. Thereafter, the Court fully considered all the evidence, made findings of fact and conclusions of law, and on December 21, 1992, the Court entered "Final Judgment (as amended December 18, 1992)" [Dkt 915], a copy of which is attached hereto as Exhibit 1 (hereinafter referred to as "the 1992 Judgment"). The Navajo Nation, the Hopi Tribe, and the San
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Juan Southern Paiute Tribe appealed and cross-appealed from various aspects of the 1992 Judgment, with appeals relating to Hopi claims and appeals relating to Paiute claims having been separately filed and briefed. On December 5, 1995, the Court of Appeals decided the appeals and crossappeals relating to Hopi claims in Masayesva v. Zah, 65 F.3d 1445-1461 (9th Cir. 1995), wherein the 1992 Judgment was affirmed in part, reversed in part, and remanded. In 2002, the Navajo Nation, the Hopi Tribe, and the San Juan Southern Paiute Tribe began a mediation process that has resulted in a bipartite Intergovernmental Compact between the Navajo Nation and the Hopi Tribe dated November 3, 2006, a copy of which is attached hereto as Exhibit 2 (hereinafter referred to as "the Intergovernmental Compact"). The San Juan Southern Paiute Tribe is not a party to the Intergovernmental Compact, and the Court has been advised by the parties that the Navajo Nation and the Hopi Tribe understand and agree that nothing in the Intergovernmental Compact shall adversely affect the interests of the San Juan Southern Paiute Tribe. In 1993, the Navajo Nation and the San Juan Southern Paiute Tribe began a separate mediation process in which the Hopi Tribe was not involved. On February 10, 1995, the appeal filed by the San Juan Southern Paiute Tribe, No. 93-15216, in the United States Court of Appeals for the Ninth Circuit (hereinafter referred to as "the Paiute Appeal"), was dismissed while the Navajo Nation and the San Juan Southern Paiute Tribe continued to discuss possible settlement. The order dismissing the Paiute Appeal stated that "either party may effect reinstatement [of the Paiute Appeal] by filing a notice of reinstatement." No notice of reinstatement of the Paiute Appeal has been filed by either party, but the time for filing such a notice of reinstatement has not yet expired. On March 18, 2000, the Navajo Nation and the San Juan Southern Paiute Tribe entered into a Treaty to effectuate a comprehensive 2
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settlement of all issues between them, including the creation of a separate San Juan Southern Paiute Reservation, but said Treaty has not yet been approved by Congress or the Secretary of the Interior. The parties, by their counsel of record, have stipulated to the entry of this Order and Final Judgment, the Hopi Tribe being represented by its counsel of record, Arnold & Porter LLP, the Navajo Nation being represented by its counsel of record, Perkins Coie Brown & Bain PA, and the San Juan Southern Paiute Tribe being represented by its counsel of record, the Native American Rights Fund. The Court having been fully informed, and having reviewed the Intergovernmental Compact, has determined that the parties are entitled to orders and judgment as set forth herein. Accordingly, it is hereby ORDERED, ADJUDGED, AND DECREED as follows: (1) The Court has jurisdiction under the 1934 Act (Pub. L. No. 73-352, 48 Stat. 960) and the 1974 Act (25 U.S.C. § 640d et seq.) over the parties and the subject matter of the Intergovernmental Compact. (2) The 1992 Judgment is hereby confirmed and incorporated herein as if again set forth in full, except as expressly modified by this Order and Final Judgment or as it may be modified as a result of the Paiute Appeal. (3) The terms and provisions of the Intergovernmental Compact are approved and made a part of this Order and Final Judgment as if again set forth in full. (4) Title to the property interests established in the Intergovernmental

Compact is hereby quieted in accordance with the terms of the Intergovernmental Compact. (5) The Court retains jurisdiction over the parties and the subject matter for the purpose of proceedings to vacate, modify, or enforce any arbitration decision and award made under Section 8.4 of the Intergovernmental Compact, or original 3
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enforcement proceedings under Sections 8.7 or 8.8 thereof. (6) Any and all claims asserted by the Navajo Nation or the Hopi Tribe against the other in this action are fully and finally adjudicated by this Order and Final Judgment and are hereby dismissed with prejudice. Each party shall bear its own attorneys' fees and costs. (7) The Court hereby finds that no lands are any longer "in litigation" for purposes of 25 U.S.C. § 640d-9(f), and that the restrictions on development contained in that statute, commonly known as the "Bennett Freeze," are of no further force or effect. (8) The Court hereby directs the Clerk of the Court that Exhibits A, B, C, and D attached to the Intergovernmental Compact shall be filed under seal. (9) Notwithstanding anything to the contrary in the Intergovernmental

Compact or in this Order and Final Judgment, nothing therein shall adversely affect any interest of the San Juan Southern Paiute Tribe. (a) Nothing in the Intergovernmental Compact or in this Order and Final Judgment is intended to, or does, resolve the legal issue whether, in the absence of a separate reservation for San Juan Southern Paiute Tribe, the Navajo Nation has, or does not have, the power to encumber, by the creation of the easements and other interests granted to the Hopi Tribe by the Intergovernmental Compact, any of the land in which the San Juan Southern Paiute Tribe was determined to have a property interest as set forth in this Court's opinion of July 10, 1992, the "Findings of Fact and Conclusions of Law re: San Juan Southern Paiute Claims" (docketed by the Court on July 14, 1992 [Dkt 876]), or as such land area may be modified as a result of any appeal. (b) As to any lands within the boundaries of the 1934 Reservation that are set aside as part or all of a separate reservation for the San Juan Southern Paiute 4
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Tribe, whenever and however that may be accomplished, the parties agree that the easements and other interests granted under the Intergovernmental Compact shall not encumber such lands, and no obligation under the Intergovernmental Compact shall be binding upon the San Juan Southern Paiute Tribe. IT IS FURTHER ORDERED that, the Court having disposed of all claims between the Navajo Nation and the Hopi Tribe, this judgment is final as to the Navajo Nation and the Hopi Tribe. Dated this 4th day of December, 2006.

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