Abbott Sekaquaptewa, Etc. v. Peter MacDonald Etc., Griffin B. Bell, Etc.

dissenting:

My steadfast belief that the questioned 50,000 acre tract was before the court and adjudicated in Healing II, coupled with my abhorrence of prolonging this litigation, compels this dissent:

That the Healing IT court had before it for consideration the entire 1882 reservation, including the now disputed 50,000 acres, and the rights of the individual Indians, is made perfectly clear by the court’s statement of the issues in the opening three paragraphs of its opinion, which I quote:

To determine the area before it for consideration, the court utilized a map, a simplified version of which is taken from Healing II at page 133 and follows:

The Healing II court, after recognizing that its authority to proceed was based on the Act of July 22, 1958, 72 Stat. 403 , went on to say:

All parties concede that the map includes the disputed 50,000 acre tract.

That the Healing II court actually assumed jurisdiction over the entire 1882 reservation is made conclusive by the following excerpt from the opinion.

Furthermore, the court, after eliminating the District 6 area, determined that as to the remainder of the reservation, the Hopi and Navajo Indian Tribes had joint,…

This appeal is the latest episode in the long and bitter conflict between the Hopi and Navajo Indian Tribes over the division of reservation lands.

The dispute has its origins in an Executive Order of December 16, 1882, withdrawing 2,500,000 acres of land in northeastern Arizona from the public domain “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.” For many years thereafter, the Hopi and the Navajo asserted conflicting claims to the tract, and all attempts to resolve the controversy by agreement and administrative action failed. The two tribes, the Secretary of the Interior, and Congress then decided to resort to the courts.

In 1958, Congress enacted a statute authorizing either tribe to commence or to defend a quiet title action against the other (and against the Attorney General on be *241 half of the United States as trustee of the territory). The Hopi brought suit, and a three-judge district court held that the Hopis were entitled to the exclusive possession of a small portion of the Reservation, known as Land Management District 6. It also held that the Hopi and the Navajo had joint,…

575 F.2d 239 Abbott SEKAQUAPTEWA, etc., Plaintiff-Appellee, v. Peter MacDONALD, etc., Defendant-Appellant, Griffin B. Bell, etc., Defendant-Appellee. No. 77-1957. United States Court of Appeals, Ninth Circuit. May 15, 1978. Lawrence A. Ruzow (argued), of Vlassis, Ruzow & Linzer, Phoenix, Ariz., for defendant-appellant. John Paul Kennedy (argued), of Boyden, Kennedy, Romney & Howard, Salt Lake City, Utah, for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before HUFSTEDLER and KILKENNY, Circuit Judges, and GRANT, * District Judge. HUFSTEDLER, Circuit Judge: 1 This appeal is the latest episode in the long and bitter conflict between the Hopi and Navajo Indian Tribes over the division of reservation lands. 2 The dispute has its origins in an Executive Order of December 16, 1882, withdrawing 2,500,000 acres of land in northeastern Arizona from the public domain "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." For many years thereafter, the Hopi and the Navajo asserted conflicting claims to the tract, and all attempts to resolve the controversy…