Masayesva

Opinion by Judge SCHROEDER; Partial Concurrence and Partial Dissent by Judge FLETCHER.

I. INTRODUCTION

These appeals are part of the long running and emotion scarring controversy between the Navajo Nation and the Hopi Tribe, in which the legislative, executive and judicial branches of the United States have all figured prominently. The dispute has centered on the ownership, control and use of nearly 2 million acres of the Native American reservation land occupying the northeast portion of Arizona and neighboring portions of Utah and New Mexico.

These particular cases arise out of specific remedial provisions of the Navajo-Hopi Settlement Act of 1974, 25 U.S.C. § 640d, et seq. (1980) (the “Settlement Act”). The Settlement Act allows partition of reservation land that the courts had declared jointly shared by both tribes, but which had been used for grazing exclusively, and excessively, by the Navajo. The Navajo overgrazing was fostered, in large part, by the Department of Interior, which refused to grant the Hopi grazing permits while simultaneously providing the Navajo with permits for more grazing than the land could reasonably support. Hamilton v. MacDonald, 503 F.2d 1138 ,…

concurring in part and dissenting in part.

I concur substantially in the majority’s opinion.

I respectfully dissent, however, from the majority’s refusal to reverse the district court’s holding that the United States is not liable for failure to protect the HPL from overgrazing prior to partition in 1979.

The majority concludes as do I that the district court applied the wrong standard in assessing the government’s liability. The district court held the government to a negligence standard, holding the Hopi responsible for proof that “the damage to the HPL was caused by unreasonable government action or inaction,” rather than to the duty of a reasonable trustee, who is under an affirmative duty “to the beneficiary to use reasonable care and skill to preserve the trust property.” (Restatement (Second), Trusts, § 176(1959)) (emphasis added).

*1386 The government’s obligation as trustee required it to take those protective measures that would have prevented the spoliation of the trust land by overgrazing-the very conduct by the Navajo that proper oversight by the government should have prevented. The government as trustee had affirmative duties of oversight-an obligation to…