Appeal from the United States District Court for the District of Arizona. D.C. No. CV-74-00842-EHC. Earl H. Carroll, District Judge, Presiding. Original Opinion Previously Reported at:,.
Before: Herbert Y. C. Choy, Cecil F. Poole and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Kleinfeld.
Order AND AMENDED OPINION
KLEINFELD, Circuit Judge:
We affirm in most but not all respects the district court decision dividing land between the Hopi and Navajo tribes. The issues arise from application of a statute Congress passed to deal specifically with this dispute.
For centuries, the Hopi and Navajo peoples have disagreed on their tribes' respective rights to lands in northeastern Arizona. The dispute has been the subject of extensive litigation and legislation. See, e.g., Hopi Tribe v. Navajo Tribe, 46 F.3d 908 (9th Cir. 1995), citing Healing v. Jones, 210 F. Supp. 125, 129 (D. Ariz. 1962), aff'd, 373 U.S. 758, 10 L. Ed. 2d 703, 83 S. Ct. 1559 (1963) (per curiam). After a district court decision in 1978, Sekaquaptewa v. MacDonald, 448 F. Supp. 1183 (D. Ariz. 1978), we remanded for additional findings. Sekaquaptewa v. MacDonald, 619 F.2d 801 (9th Cir. 1980). The judgment we review now is based on three separate decisions: Masayesva v. Zah, 816 F. Supp. 1387 (D. Ariz. 1992) (partitioning land and lifting development freeze); Masayesva v. Zah, 793 F. Supp. 1495 (D. Ariz. 1992) (deciding question of where Hopis were located in 1934); Masayesva v. Zah, 792 F. Supp. 1155 (D. Ariz. 1992) (holding land acquired from railroads not subject to Hopi claims).*fn1
On December 16, 1882, President Chester Arthur by executive order set aside land in northeastern Arizona "for the use and occupancy of the Moqui [Hopi] and such other Indians as the Secretary of the Interior may see fit to settle thereon." Hopi Tribe v. Navajo Tribe, 46 F.3d 908, 911 (9th Cir. 1995). The Hopi 1882 reservation has been the subject of much litigation between the Navajo and Hopi tribes. See, e.g., id. ; Sekaquaptewa v. MacDonald, 575 F.2d 239 (9th Cir. 1978); Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir. 1974); Healing v. Jones, 210 F. Supp. 125 (D. Ariz. 1962); Healing v. Jones, 174 F. Supp. 211 (D. Ariz. 1959).
A half century later, Congress established a much larger Navajo reservation. Act of June 14, 1934, 48 Stat. 960 (the "1934 Act"). This reservation was not only for the Navajo people, but also for "such other Indians as may already be located thereon," and it did not take away any of the Hopi reservation created in 1882:
Be it enacted . . . that the exterior boundaries of the Navajo Indian Reservation, in Arizona, be, and they are hereby, defined as follows . . . . All vacant, unreserved, and unappropriated public lands . . . are hereby permanently withdrawn from all forms of entry or disposal for the benefit of the Navajo and such other Indians as may already be located thereon; however, nothing herein contained shall affect the existing status of the Moqui (Hopi) Indian Reservation created by Executive order of December 16, 1882.
In 1974, almost a half century after creation of the Navajo reservation, and almost a century after creation of the Hopi reservation, Congress passed a law enabling the Navajo and Hopi tribes to sue each other as a means of settling their continuing dispute over which tribe was entitled to which lands in the 1934 reservation. Each tribe was authorized to sue the other in district court "for the purpose of determining the rights and interests of the tribes in and to such lands and quieting title thereto in the tribes." 25 U.S.C. § 640d-7(a). The Hopis commenced the case at bar in accord with the Congressional authorization.
We addressed the question "what property interests are conferred by the phrase [in the 1934 Act] 'for the benefit of the Navajo and such other Indians as may already be located thereon?'" in our earlier decision in this case. Sekaquaptewa, 619 F.2d at 805. The Hopis had argued that the phrase gave them a half interest in the entire Navajo reservation, because they were "such other Indians as may already be located thereon," and the reservation was conferred for the benefit of the Navajo and "such other Indians . . . ." The district court had held that the Hopis were entitled to interests only in the lands upon which they were located in 1934, and on those lands, they were entitled only to an undivided half interest with the Navajos, not an exclusive interest.
We rejected the interpretation that the statutory phrase conferred joint interests, either in Hopi-occupied land only or in the entire 1934 reservation. We held that it conferred an exclusive interest in the Hopis, but only to the lands they occupied in 1934. We concluded that "the purposes, history, and language of the 1934 Act show an intent to withdraw all reservation land for the Navajos except for pockets occupied by the Hopis. . . . This is the meaning of the 'such other Indians as may already be located thereon' provision." Id. at 807. We rejected the district court's decision that "located thereon" created only a half interest in the Hopi-occupied areas of the Navajo reservation. We held that the Hopis were to take such "pockets" exclusively of the Navajos.
Legislative intent is clear enough to enable us to identify Hopi interests by areas settled. Navajo interests are identifiable as the residue. Congress recognized Hopi concern over the 1882 reservation and their villages, shrines, and grazing areas outside the 1882 reservation. The "such other Indians" provision was explained to the Hopis as protecting their rights to areas occupied outside the 1882 reservation. . . . We therefore reverse the [district court's] judgment insofar as it limits Hopi interests to an undivided one-half interest in lands they exclusively possessed, occupied, or used in 1934. Judgment should be entered declaring Hopi interests in those lands to be exclusive.
Id. at 808. We then remanded the case with these instructions:
We remand to the district court to determine what land the Hopis "possessed, occupied, or used" in 1934. In doing so, we acknowledge the possibility that some reservation land, grazing land for instance, may have been used by both tribes in 1934. Even in villages it may not be possible for the court to conclude that the Hopis "possessed, occupied, or used" such land exclusively. In that event it may be proper on remand for the district court to declare title to be joint or undivided, subject to partition. We reverse only with respect to the district court's holding that Hopi title is necessarily non-exclusive, even with respect to land that was actually and exclusively "possessed, occupied, or used" in 1934.
Id. at 809-10 (emphasis added).
Upon remand, the district court held a bifurcated trial. In the first phase, the court tried the issue of which land was occupied exclusively by the Hopis in 1934, which the parties agreed was the relevant year under the statute. Masayesva v. Zah, 793 F. Supp. 1495 (D. Ariz. 1992). In the second phase, the court tried the issue of what to do with lands occupied by both tribes in 1934. Masayesva v. Zah, 816 F. Supp. 1387 (D. Ariz. 1992). During this second phase, the court took evidence on contemporary land use and occupancy, for purposes of deciding upon equitable partition. The land occupied by both tribes in 1934 was partitioned by the court, pursuant to 25 U.S.C. § 640d-7(b), which requires that "any lands in which the Navajo and Hopi Tribes . . . are determined to have a joint or undivided interest shall be partitioned by the District Court on the basis of fairness and equity . . . ."
The district court construed the 1934 statutory term "located" to mean something more than the level of possession, occupancy or use which might be used in different contexts to establish aboriginal title. "This court will not apply the same standard regarding the intensity of 'possession, occupancy, and use' required to establish aboriginal title. The Hopi Tribe's claims in this case are based on recognized title granted by the 1934 Act." Masayesva, 793 F. Supp. at 1500 (emphasis in original).*fn2 Although the district court required more substantial occupancy than for aboriginal title, it rejected the Navajo argument that continual physical presence was necessary. Here is the standard that the district court applied to the evidence, in order to determine which pockets of land were occupied by the Hopi tribe:
The Court finds that the use by Hopi Indians must be substantial and sufficiently intensive in order to create a property interest in the 1934 Reservation, though the use does not have to be for subsistence purposes. Use by a few isolated individuals, especially when away from traditional use areas of that individual's Tribe, and irregular or sporadic uses are not sufficient. However, since seasonal use is pervasive in Indian land use patterns, and indeed necessary in the harsh environment of the 1934 Reservation, substantial seasonal use is sufficient for this Court to find occupation or use of the land.
The Hopis argue that this standard was erroneous as a matter of law, because it required more intensive use and occupancy than the aboriginal title cases ordinarily do. We assume for purposes of Discussion, without deciding, that the Hopis are correct in their argument that the district court imposed a more stringent requirement than the one which has evolved in aboriginal title cases. We conclude, nevertheless, that the district court correctly construed the statutory phrase "located" in this statute.
Our use of the phrase "possessed, occupied, or used" in our 1980 decision was not intended to import a particular level of intensity into the level of usage which would suffice under the statutory term "located." We used the terms "settled" and "occupied" as well. We did not distinguish which of these different levels of intensity were sufficient to satisfy the statutory term "located," because that was not the issue we were deciding. We were resolving the question of whether the statute conferred to the Hopi tribe a half interest in the whole reservation, a half interest in the areas the tribe occupied, or an exclusive interest in the areas occupied. The district court was correct, on remand, in not reading into the phrase "possessed, occupied or used" a decision on the intensity of use. See United States v. Andrade-Larrios, 39 F.3d 986, 990 (9th Cir. 1994) (noting distinction between holding and dictum).
The Hopis argue that the district court erred in "apparently equating 'use, occupation, or possession' with the term 'located' as used in the 1934 Act." What we, and the district court, must apply is precisely that Act. Congress in 1934 used the term, "located." This word was not a term of art connoting lands which people merely passed over occasionally or otherwise used to a very low level of intensity. The district court's construction was consistent with the ordinary meaning of the word. It was well designed to serve the purpose of the 1934 Act:
Congress recognized Hopi concern over the 1882 reservation and their villages, shrines, and grazing areas outside the 1882 reservation. The "such other Indians" provision was explained to the Hopis as protecting their rights to areas occupied outside the 1882 reservation.
Sekaquaptewa, 619 F.2d at 808. We review the district court's construction of the statute de novo, Jeldness v. Pearce, 30 F.3d 1220, 1222 (9th Cir. 1994), and conclude that it was correct and a correct implementation of this court's mandate in Sekaquaptewa.
We reject the Hopis' argument that "located" must be construed to mean the same thing as "possession, occupation, or use" under decisions by the Indian Claims Commission and Court of Claims. See 25 U.S.C. §§ 70-70v (now omitted); 28 U.S.C. § 1505. See generally Felix S. Cohen, Handbook of Federal Indian Law 160-62 (1982 ed.); William C. Canby, Jr., American Indian Law 228-31 (1st ed. 1981). The Indian Claims Commission was authorized, inter alia, to hear claims "arising from the taking by the United States . . . of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant." 25 U.S.C. § 70a. This provision permitted compensation for the taking of land held pursuant to aboriginal title:
Indian tribes that occupied and used the land to the exclusion of others (except for mere temporary excursions) had an interest denoted as a "right of occupancy." This right later came to be known as "original Indian title" or sometimes simply as "Indian title" or "aboriginal title." That title cannot be compromised by any other party except the federal government. [citation omitted] . . . A taking by the federal government of lands held by original Indian title does not give rise to any right of compensation under the Fifth Amendment. [citation omitted] In this respect original title is to be distinguished from "recognized title" . . . . A taking of original Indian title by the federal government may . . . provide the basis for a claim under the Indian Claims Commission Act of 1946.
Canby, supra, at 223-24. See also Cohen, supra, at 491-92 ("Of course, Congress can provide compensation for the taking of original Indian title [although it does not have to do so]. . . . The Indian Claims Commission Act was a congressional program of limited retrospective compensation for extinguishment of Indian title").
The line of cases on which the Hopis rely to construe the phrase "possession, occupation, or use" began twelve years after the 1934 Act was passed. Congress could not have meant to use a meaning not yet given to a phrase it did not use, when it wrote "located" into the 1934 statute. Moreover, the Hopis are not litigating their aboriginal title to these lands, but rather the recognized title conferred on them by the 1934 Act. The district court in an earlier decision took note of a previous determination that Hopi usage in these areas had been insufficient to establish aboriginal title under a less stringent standard than that in the 1934 Act. Sekaquaptewa, 448 F. Supp. at 1188 (citing Hopi Tribe v. United States, 31 Ind. Cl. Comm. 16 (1973); Hopi Tribe v. United States, 23 Ind. Cl. Comm. 277 (1970)). The land described in a statute as subject to recognized title "may or may not have been part of the aboriginal territory of the tribe." Canby, supra, at 226. See also 42 C.J.S. Indians § 72(b) (1991) ("The nature and extent of the rights and title of Indians in a reservation do not depend on aboriginal possession, but are measured by the terms of the governing act . . . .").
The district court's findings of fact as to the nature, scope, and intensity of Hopi land use are reviewed for clear error. Fed. R. Civ. P. 52(a); Campbell v. Wood, 18 F.3d 662, 681 (9th Cir.) (en banc), cert. denied, 114 S. Ct. 2125 (1994). Application of principles of law to facts are mixed questions of law and fact. Under United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir. 1994) (en banc), we review the district court's application of law to facts for clear error where it is "strictly factual," but de novo where application of law to fact requires "consideration of legal principles."
The district court made extensive findings about the extent of non-religious but traditional activities such as gathering plants, wood for construction and fires, materials for use in tools, and so forth. Masayesva, 793 F. Supp. at 1528-30. It decided that the Hopi use of the widespread areas in which these activities took place was not so regular or extensive as to amount to the Hopis having been "located" there. Id. The court found that many such places were used depending on where an individual happened to be travelling, were used less often than once a year, or otherwise were not particular areas regularly used. Id. The Hopis do not contest the district court's factual findings as to the nature, extent, intensity and duration of this traditional land usage. The district court findings regarding these areas were not clearly erroneous.
Because we have concluded that the district court correctly construed the statutory term "located," the Hopis' argument that the case should be remanded for application of a less intensive "occupied or used" standard is necessarily rejected. The Hopis make two arguments about location in 1934 that are not controlled by this determination: (1) the district court failed to apply the standard correctly to areas where their ...