[Please note that the Senate passed the bill by "unanimous consent" on May 2, 2006. It has since been referred to the House Resources Committee. This is how the bill looked at passage.]


Senate Committee on Indian Affairs Hearing — S. 1003 — Question and Answer Periods

[note: this part of the hearing is not found on the written testimonies submitted]


Senator McCain at beginning of hearing

Good morning. I want to thank Senator Inouye for stopping by this morning because he is one of those who has been involved in this issue for many years as I have. And, Senator Inouye, for the record, one of my earliest memories in 1883 when I was a member of the House, now 22 years ago, traveling to Navajo and Hopi lands, and having a long series of meetings with Congressman Udall then chairman of the interior committee to try to get the issue of the Navajo-Hopi land dispute settled, one of the few times in Mo Udall’s career he was not successful.

And then I know when I came to the Senate in 1987, this issue again was again before the committee, the issue of the Bennett Freeze, how many families needed to be located, how soon we’ll be able to terminate this, and now we have spent since 1974, now 31 years we’ve spent 483 million dollars, and witnesses will come before this committee and say, we’re still not finished.

It’s gonna be over. It’s gonna be over. It’s gonna be over.

It’s time it ended. It’s time that we brought to a conclusion this tragedy that has afflicted human beings on the Navajo and Hopi reservation for too long. And I guess, and I’d be interested in hearing my colleague from Hawaii’s comments, maybe the lesson is you shouldn’t try to settle land disputes through legislation, that maybe one of the lessons we’ve learned here since 1974. And I do not diminish in any way the human tragedy that has been associated with this issue. Witnesses today are as well aware of that as I am, but I’m also aware that there is limited amount of American taxpayer’s dollars that could be devoted to worthy causes on both the Navajo and Hopi reservations, educational facilities, healthcare facilities, housing, many others, and I want to emphasize we’ve got to bring closure to this. And on many occasions in the past all through the 80’s and 90’s, I was told, just a few more years, just a few more years, just a few more years. The year is now 2005, 483 million dollars spent in the meantime. It’s time to bring closure.

I want to clarify that the bill is not intended to alter prior court decisions on land claims or to impact on ongoing negotiations between the Navajo and Hopi tribes. I commend you for the progress that’s being made. I also understand there is a strong desire to address the deplorable conditions on the Bennett Freeze. I, too, want to address this in separate legislation. When enacted in 1974, the Navajo and Hopi relocation process was intended as a temporary means to relocate families who were living on the disputed land on September 22, 1974, 31 [drawn out] years ago. The act originally intended the relocation activities would be completed by 1986, and that the total cost would be 40 million dollars. Since its inception the relocation process has been plagued with controversy and delay, and the Congress has had to amend the act several times to expand the relocation activity and provide additional appropriations. I recognize the deep emotional toll that relocation has taken on the Navajo and Hopi tribes, and the individual relocatees. But after 31 years of identifying and relocating eligible applicants, appropriations over a half a billion dollars, it’s time.to bring the relocation program to a close. This bill intends that by September 2008 the Relocation Office will transfer remaining responsibilities, and necessary personnel and funding to the DOI. Thereafter, the federal gov’t. will no longer be obligated to provide replacement homes for eligible relocatees. The funds to provide these homes will be placed in trust with the Interior for dissemination to eligible relocatees or their heirs. All other necessary relocation activity will be administered by the Department until these activities are complete.

In 1996, I introduced a bill that would have phased out the relocation program by September 2001. At a hearing on that bill, many witnesses stated that this was a reasonable timeline to complete the activities, but opposition remained due to the pending approval of the accommodation lease agreements by the Interior Department. That activity is now complete, and an additional 9 years have passed in which additional relocation activity has occurred. I commend the Relocation Office for its ongoing efforts to implement this complex program. I understand that you have reviewed over 4,600 applications, considered numerous appeals and provided relocation homes for over 3,600 families. You’ve also provided funding to both tribes to address the impacts of relocation.

I welcome you all to the hearing, and I look forward to your testimony on this important matter.

Senator Inouye.


Panel One — Christopher Bavasi, Paul Tessler, William P. Ragsdale

McCain: Mr. Bavasi, again I want to thank you for the outstanding work you have performed over a many year period.

McCain: Maybe for the record, it might be helpful, Mr. Bavasi, to describe to the Committee for the record, some of the diffi …, if I went to the Phoenix Rotary Club today and said, you know we passed a law in 1974 that was supposed to cost 40 million years and take maybe 10 to 12 years, and it’s ended up costing ½ a billion dollars, and has gone on for 31 years, how would you describe this saga? First of all it’s a lesson that Congress probably shouldn’t pass laws dictating relocation. Is that the first lesson?

Bavasi: Probably. But I do it carefully. I wouldn’t want to blame this on anyone, but I would merely point out, that in 1980, well let me back up, I think the record would show that when this was originally contemplated, that the notion was that maybe a thousand or 11oo families that needed to be moved, and the deadline of 1985 then ‘86 came about because the law required the office to do a plan, to submit a plan, have a plan approved, and then five years later the project was supposed to be done. That was 1985. Then because of some legal issues it became 1986. So July 7, 1986, the project was supposed to be done, and originally it had been contemplated the 1000, 1100 families would be moved. Well, interestingly enough, in 1986, 1100 families had been moved. However, because of a whole variety of reasons, ultimately 3600 families had been certified or hoping to be certified. That’s certainly one reason that this has taken so long.

Another reason this has been reported to be something less than a voluntary program, but in fact it has always been operated as a voluntary program. So, some folks didn’t have the urgency to move through the program perhaps as quickly as they would otherwise.

McCain: No one has ever been forced off their land.

Bavasi: No, sir, never have. And I will submit it with you later [untelligible – spoke too fast] how we think we can come to a conclusion so that no one will be forced off their land. So, I think those two issues will be one reason why we are where we are today

McCain: How would you account for gross miscalculation of cost of a 40 million dollar original cost to ½ a billion dollar actual cost?

Bavasi: I’m not sure I can because I don’ t know what the theory was or what the processes was that 30 years ago it would cost 40 million dollars. We believe, and I think we can show you, we have been fairly frugal in terms of expenditure of money. Even today in today’s housing market we’re able to build a home in slightly over $100,000 in 2004. It will be slightly higher this coming year.

McCain: And I think Mr. Tessler might testify that there’s been huge, huge amount of legal cost associated with this issue. Is that right, Mr. Tessler?

Tessler: That is correct.

McCain: Could you estimate out of this ½ billion dollars how much has just been expended in continuous court battles. I think there’s been continuous court battles from the day that this bill was passed.

Tessler: Yes, there have. I know we provided the figure to your staff. I don’t have that in front of me. But all through this process, the relocates, if they have been denied eligibility for benefits, have been entitled to administrative hearings, and the NN has provided a legal services program to represent them all through that process, which involved not only the administrative stage, but also appeals to the US District Court which has generated much expense.

McCain: In all due respect to our friends in the legal profession this has been quite a windfall for them.

Tessler: Yes, it has.

[someone said something about the record here]

McCain: Would you please, for the record, give us an estimate of the legal cost associated with this because I think it’s really been? … Oh, Mr. McGinn, maybe with a benefit of a 31-year hindsight, maybe we should have never passed the law to start with. Now Mr. Bavasi, using your expertise, what do you think we ought to do about the Bennett Freeze situation, which we all know has turned into, with all good intentions, into a deplorable economic disaster area.

Bavasi: Senator, I don’t think there is any easy answer to it, but it is as you suggest it is deplorable, awful situation, then I think if we all work together – the Navajos, the Hopis, and Congress, federal gov’t – we can come to some conclusion on how that area can be rehabilitated.

McCain: Which I think Congress, by the way, would be more than willing to provide funds for but first we have to have a resolution. What if we passed a law tomorrow that Bennett Freeze is lifted? What would happen then?

Bavasi: Number one, I don’t think that it would be wise. I think that we should all work together to come to…

McCain [interrupting]: But it wouldn’t be wise because what would happen?

Bavasi: Chaos might be an appropriate term. I don’t have any idea what would happen. I don’t think it would be good because everyone would be scrambling to get the upper hand, and I don’t think that’s the proper way to handle it.

McCain: But negotiations between the tribes for 31 years have not succeeded.

Bavasi: But I’m not sure we’ve tried that hard on the Bennett Freeze issue. I could be completely wrong. I’m not involved in that. But I suspect I think we can come to some conclusion, frankly using relocation as a benchmark of perhaps of what not to do to going in.

McCain: Senator Inouye.

Inouye: As I’ve indicated earlier, I’m very optimistic, because I recall the first meeting that this committee held during which time the chairman of the Hopi and the chairman of the Navajo sat at the same table, and that had never happened before. And today I note, that for over 3 years I believe, negotiators and the leaders of both tribes have been looking into the access to sacred sites of each other’s camps. If we can go that far, I’m certain that all these matters can be resolved. And I share the Chairman’s optimism and his directness that this be resolved. And I’m with him.

Bavasi: Senator, I hope I didn’t leave the wrong impression. There is no relocation on the Bennett Freeze.

McCain: Yeah, but the Bennett Freeze continues to be a source of major friction between tribes and the deplorable economic conditions that exists, you know it’s an outrage that any citizen in the US should live in the conditions that exist on the Bennett Freeze. And that was created by the federal gov’t. Is that an inaccurate statement?

Bavasi: No, it’s not.

McCain: Mr Ragsdale, do you have any comment on that?

Ragsdale: No, sir. No, sir, I think it would have to be addressed in separate legislation.

McCain: Mr. Tessler?

Tessler: No, sir.

McCain: You guys are surprisingly reticent.

Bavasi [I think]: Sir, we are not a party to that suit nor have we been.

McCain: No, but you are very familiar with the impact that the Bennett Freeze has had on this whole issue.

Tessler: That part of the reservation has fallen behind even the former JUA we’re dealing with now in terms of development and lack of infrastructure. I do believe it is very close to resolution. I believe the tribes are considering a compact, which may resolve it any time now.

McCain: Good.

Ragsdale: Mr. Chairman, the Freeze was put in place in 1964 and 1965 about the time I graduated from high school, and I learned the other day when I was reading on the matter that the Freeze was still essentially still status quo. I was somewhat surprised.

McCain: As I remember history, it was put in as a temporary measure that would be an incentive to not have one tribe take advantage over the other while the dispute was gonna be resolved within a short period of time, and here we are 50 years later, whatever, 40 some years later. Again, I go back, Senator Inouye, I think that Congress ought to be more careful about and administrations ought to be more careful about as we all know it’s an executive order, the Bennett Freeze, to how we interfere in these disputes because sometimes the laws of unintended consequences prevail in an incredible fashion.

One other issue I had for you, Mr. Bavasi, construction and maintenance problems with relocation housing. How severe are they?

Bavasi: Construction and maintenance problems?

McCain: Yeah.

Bavasi: Construction problems are minimal. We have either purchased or constructed over 3400 houses. We … what’s it called … have a program on the new lands in the area of Sanders, about 350,o00 acres. There’s almost 400 homes there, 397 homes. We have a very small portion that originally was started by BIA. A number of years ago, one of the previous … what do you call…l directors then, assistant secretaries then, had about $25,000,ooo to build houses. The problem is the BIA wanted to do it themselves. To make a long story short, there were some earth problems. And the houses were begun to be built there, 12 or 13 and then the program came back to us. We finished the houses. To make a long story short, there’s 36 houses there. About 12 of them have foundation problems. We are now going in and evaluating that, and we will fix what needs to be fixed. Besides those there are very few houses, not none, but very few houses that have had to be fixed because of defects in construction. Maintenance is an entirely different story. We expect our clients to take care of the houses as anyone else would. But we frequently get complaints about shingles off the roof, broken windows those kinds of things.



Panel Tw0 — President Joe Shirley Jr., Roman Bitsuie, Louis Denetsosie, Chairman Wayne Taylor

McCain: President Shirley and Chairman Taylor, suppose that you had dictatorial powers, what would you do about the Bennett Freeze. What would be your solution to the Bennett Freeze issue? We’ll begin with you, President Shirley.

Pres Shirley: I don’t know if I want dictatorial powers, Senator.

McCain: Some say that the President of the Navajo Nation has close to it.

Pres. Shirley:[ laughs]

McCain: Seriously, in other words, if you had a magic wand, this is the way we settle the Bennett Freeze. This is important because we’re going to try to address that issue.

Pres. Shirley: I remember a time, Senator, when the Hopi Nation and the Navajo Nation lived together harmoniously. I guess I would like to get back to that. I know many of our children are intermarried. Navajo people are married to Hopi people and so we have children who are Hopi and Navajo. I think also with the Hopi Nation. And I think where the two Nations at this point in time on working with Chairman Taylor with the Council we try to resolve just that, the Bennett Freeze. And having resolved it we’ll begin to see the harmonious relationship that has gotten away from us, and to begin to develop our lands the way we should. That’s what I’d like to see.

McCain: You’d like to see it lifted?

Pres. Shirley: Yes, I’d like to see it lifted, sir. I think that’s what we need.

McCain: Chairman Taylor.

Taylor: Well, Chairman McCain, the 1934 land settlement act is in litigation between the two tribes as you well know. We have been waiting on the District Court to pick this matter back up and we have waited for a very long time. It is still on the docket. What we have done... [then interrupted by McCain]

McCain: Well, let me ask you this. Suppose we lifted the Bennett Freeze tomorrow. What do you think would ensue on the Bennett Freeze? Would it be chaos? Would it be people trying to move in on other people’s land? Would it be … What do you think would happen?

Taylor: Chairman McCain, in fact what I was getting ready to say …

McCain: I’m sorry.

Taylor: We have been in negotiations and in fact have reached agreement and have developed a compact, which would settle this lawsuit, and in fact, the Hopi Tribal Council has already ratified this agreement and we’re awaiting on Navajo Council to do likewise, and …

McCain: {interrupting again] And the provisions of that, and roughly the outlines of that agreement would be…

Taylor: The lands have been largely partitioned. What is remaining, Chairman McCain, are the uh in the case of Hopi, the sacred sites, the religious sites that we have remaining on the Navajo 34 areas. We want those areas to be protected, and we want to have access to all those areas so that we can continue to practice our religious duties and responsibilities.

McCain: President Shirley, your version of this compact?

Pres. Shirley: We are very diligently working together, the two Nations, to come to agreement about the compact, sir, and I think if we can continue to do that I think that in short order we will have that agreement. The Navajo Nation Council has been apprised of it, they’re looking at it, and I think that god willing, you know, we will have, you know, an agreement.

McCain: Within the year?

Pres. Shirley: Given caution I’d like to see it within the year.

Taylor: Chairman McCain, again the Hopi Tribal Council has already approved the compact. We’re anxious to see it happen this year. That would, in effect, also lift the Bennett Freeze.

McCain: Mr. Attorney General, do you have a comment on that?

Denetsosie: Thank you, Senator. The terms of the compact are subject to confidentiality agreement. Unfortunately, we can’t really divulge the details. It involves senior judge from the 9th Circuit District Court, the 9th Circuit Court of Appeals as the mediator, and we also signed on to the confidentiality agreement and we’re really cautious about that. It’s impossible to predict when the two tribes will carve out the final terms. Like we said, it could be this year. It could be next year. That’s the best we can say. But we’ll look forward to that assistance of the US, not only the DOI but Fish and Wildlife and the US Senate in helping us resolve this quick, in fact in the near future I hope.

McCain: Well, I don’t have to tell any of the witnesses that it’s a national shame and disgrace the conditions that exist in the Bennett Freeze area, and it’s long overdue that we addressed it, and I hope that this compact or agreement may be consummated as soon as possible so we can let those people get on with some kind of development. President Shirley, so keep us informed, would you?

Paragon Ranch in New Mexico was purchased with the intent that coal reserves would generate revenues that would in turn reimburse the Navajo Rehabilitation Trust Fund. It is my understanding there’s no coal research uh resources that are producing. What do you intend to do with this land.

Pres. Shirley: I’ll go ahead and have our Attorney General answer that, sir.

McCain: OK, sure, whichever.

Denetsosie: …Senator, the land has not been transferred to us at this point in time because of appeals by the existing owners of the preference right lease applications and it’s not for lack of effort on our part but those have been appeals within the BLM and they involve litigation. For those reasons we still haven’t acquired the resources and when we do get the resources, then we can look at the opportunities available for the development of the coal resources. But it‘s something that is ongoing. There’s a separate bill as you are aware through the Natural Resource Committee at the Senate to try to resolve that issue at this time.

McCain: Mr. Bitsuie, 16 million was appropriated for the Rehabilitation Trust Fund. I understand that after the conceptual framework was signed these funds went into an interest-bearing account that accrued an additional 8 million dollars, and I understand that 11 million dollars of that fund remains. Appropriations were made between 1990 and 1995. Why has there been a ten-year delay in spending that money?

Bitsuie: Mr. Chairman, the federal government loaned the Navajo Nation 16 million dollars to fund the trust fund. We have spent on community housing, and other similar projects about 15 to 16 million dollars. But the original loan has also generated another 8 million dollars in interest, which is roughly the unexpended amount remaining in the account. We are using the interest from the 8 million dollars to fund further projects. That 8 million dollars itself has been earmarked by the Navajo Nation for critical land purchases. Those land purchases have not been complete as the Navajo Nation has been extremely careful in seeking to acquire lands that will actually generate revenue for addressing the adverse impact of the land dispute for years to come. We are stretching out and maximizing the value of the trust fund. Land is very important in Navajo culture. For years the policy of the federal government has been to increase tribal self-determination. In our judgment we have appropriately allocated the resources from the trust fund, Mr. Chairman.

McCain: Well, in my view you haven’t. It was appropriated 10 -15 years ago and it’s not been spent. And I’m sure if that had been the conditions under it was appropriated, the money wouldn’t have been appropriated. Mr. Bitsuie, the Land Commission received a million and a half in 1998 from the trust fund to build or improve 48 replacement homes on the HPL. What’s the status of this project? It’s only been 7 years.

Bitsuie: The Navajo Nation allocated 1.5 million from the trust fund for the construction of 48 homes on Hopi Partitioned Land. And under the AA that has been entered into between the NN and the Hopi Tribe we were instructed to use or identify the land or the land that was for the Accommodation signers to use within a certain period of time so the money was made available. The 1.5 million only represents only about ½ the cost of those homes. In an effort to stretch trust fund dollars, we reached an agreement with the Navajo housing services that they would provide labor. Unfortunately for their own financial reasons, the Navajo housing services was not able to fulfill its contractual commitment. Six homes were not built, but most of the other 42 have significant problems. The Navajo Nation recently have committed another 800,000 to fix the homes and complete the projects. When complete, the total cost of this project to the trust fund for 48 homes of 2.3 million dollars is still a bargain. Today it would cost about 100,000 per home as was provided by the Relocation Commission, Mr. Bavasi. To build these homes it would cost approximately 4.8 million dollars but we will complete the homes at a cost half of that amount, Mr. Chairman.

McCain: So if we waited another 20 years it would probably cost a million dollars per home so we should wait … longer. Is that the logic you’re giving me, Mr. Bitsuie?

Bitsuie: We are on a timeframe that we will complete the renovation of these homes by the end of this year as well as the six homes that were not constructed, Mr. Chairman.

McCain: Thank you very much. Could I just ask how often, President Shirley, do you and Chairman Taylor communicate with each other?

Pres. Shirley: We communicate as often as is needed, sir, on different issues, you know, relative to the Bennett Freeze or whatever…

McCain: [interrupting] You have good lines of communication?

Pres. Shirley: Yes, we do.

McCain: Chairman Taylor

Taylor: We do, Mr. Chairman, we do communicate quite frequently. This is just one of a number of issues that we’re dealing with. We’re working together to preserve the Mohave Plant, which is a major part of the economic revenue for the two nations and that also is another matter that takes tremendous amounts of our time, and we do work together with our teams on those projects.

McCain: I suggest that there’s a lot of issues maybe more than in the past that exist that are in the mutual interests of both tribes, as you mentioned the Mohave Power Plant situation, housing, the Bennett Freeze, pending compacts between the two tribes, and I would suggest that you two schedule regularly schedule meeting as happens between leaders that have issues of mutual interest so that you have an agenda, meet and see what can be resolved and report back to the tribal councils, and the Hopi and Navajo people. It’s my suggestion given the number of issues that exists that are in the mutual interest of both tribes that you establish a set of regularly scheduled meetings between the two of you at least in this period while we’re addressing major issues that affect both tribes. I encourage it. I’m not saying that you must. I’m just saying it would be helpful to us to know the agenda that both tribes are pursuing, the Navajo Nation and Hopi tribe, are pursuing, in order to try to achieve some of these goals.

The last, I think I started this hearing and maybe I should close it by saying that when Congress gets involved in issues such as a land dispute many times the law of unintended consequences is going to prevail, and I don’t think anyone thought that in 1974 that we would be here, sitting here, 31 years later without some of these issues having been resolved, and I think that if in 1974 if the two tribal leaders had been able to sit down and negotiate these issues out that we would be discussing other important and compelling issues like education, like healthcare, like housing. There’s a number of issues that clearly the federal government has not fulfilled its responsibilities to either tribe. I’d like to be able to put these issues behind us so that we can concentrate on providing proper healthcare, education, and housing to both tribes which we all know is terribly lacking and behind the rest of the nation. Any comment, Chairman Taylor?

Taylor: Mr. Senator, I think you’re very much on point. I couldn’t agree with you more.

McCain: President Shirley?

Pres. Shirley: Point well taken, sir. I totally agree.

McCain: I think a lot of this is going to depend on the cooperation between the two of you elected leaders and I’m pleased to see that this relationship has matured in a way that perhaps was not the case in previous administrations and both organizations. Mr. Attorney General, it’s always a pleasure to see you again. Do you have any other comments you’d like to make?

Denetsosie: I’m ready to wait for the software.

[Laughing – McCain’s forced]

McCain: Mr. Bitsuie?

Bitsuie: Thank you very much, sir.

McCain: Thank you very much. We’ll work very closely with you as we proceed on this issue. Thank you very much. This hearing is adjourned.

Pres. Shirley: Thank you very much, sir.


The "official transcript" can be found here. It is a large file so may take a while to open.


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