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The Navajo Nation v. United States

January 10, 2011


Appeal from the United States Court of Federal Claims in case no. 88-CV-508, Senior Judge Eric G. Bruggink.

The opinion of the court was delivered by: Mayer, Circuit Judge.

Before DYK, MAYER, and MOORE, Circuit Judges.

The Navajo Nation appeals a judgment of the United States Court of Federal Claims denying its claim seeking damages for an alleged Fifth Amendment taking of its right to develop land granted to it by the United States in 1934. See Navajo Nation v. United States, No. 88-CV-508 (Fed. Cl. July 13, 2009). Because we conclude that the claim is barred by the six-year statute of limitations set out in 28 U.S.C. § 2501, we vacate the judgment of the Court of Federal Claims and remand with instructions to dismiss for lack of jurisdiction.


The present dispute follows in the wake of a long-running controversy between the Hopi Tribe and the Navajo Nation over vast swaths of land in northeastern Arizona. For decades, the two tribes sought to establish their respective rights to land within two reservations, the 1882 Reservation, which consists of approximately 2.5 million acres, and the 1934 Reservation, which consists of approximately 8.2 million acres. The 1882 Reservation is surrounded by the 1934 Reservation.

On December 16, 1882, President Chester A. Arthur established the 1882 Reservation for the benefit of the Hopi "and such other Indians as the Secretary of the Interior may see fit to settle thereon." Exec. Order of Dec. 16, 1882, reprinted in Healing v. Jones, 210 F. Supp. 125, 129 n.1 (D. Ariz. 1962), aff'd, 373 U.S. 758 (1963). In 1934, Congress delineated the exterior boundaries of a Navajo Reservation and permanently withdrew all unre-served and non-appropriated public lands within those boundaries "for the benefit of the Navajo and such other Indians as may already be located thereon." Act of June 14, 1934, 48 Stat. 960, 961 (the "1934 Act"). At the time of the 1934 Act, members of the Hopi Tribe were living on portions of the 1934 Reservation.

In 1962, a district court concluded that approximately 650,000 acres of the 1882 Reservation belonged exclusively to the Hopi Tribe, and that the Hopi Tribe and the Navajo Nation had joint and undivided interests in the remaining land. See Healing, 210 F. Supp. at 191-92. While the Healing litigation was pending, members of the Hopi Tribe asked the Department of the Interior ("DOI") to take action to protect their rights within the 1934 Reservation. In response, DOI Commissioner of Indian Affairs Robert Bennett concluded that "the Government can no longer continue to administer the [portion of the 1934 Reservation located directly to the west of the 1882 Reservation] as though it were owned solely by the Navajo Tribe." He determined that "[n]o action shall be taken by an official of the [DOI] that does not take full cognizance of the undetermined rights and interests of the Hopi Indians" in the affected area. He therefore imposed a "mutual consent" requirement, which mandated that the Hopi and the Navajo obtain the consent of the other tribe before undertaking development projects in the region. The region affected by Bennett's mutual consent requirement became known as the "Bennett Freeze" area. See Masayesva v. Zah, 816 F. Supp. 1387,1415 (D. Ariz. 1992) (explaining that "[t]he Bennett Freeze was intended to protect the interests of the Hopi Tribe pending any negotiated, congressional, or court resolution of Hopi and Navajo property interests in the 1934 Reservation").

In 1967, Bennett determined that public works projects would not be subject to mutual consent requirements. In 1970, however, this decision was reversed and public works projects were again made subject to such requirements. In 1972, development within Moenkopi and Tuba City was exempted from the mutual consent requirements. The mutual consent requirements were again modified in 1976 when DOI Commissioner Morris Thompson allowed an appeal to him of any Navajo project "for which the Hopi Tribe has specifically refused to grant its consent" or for which it refused "to consider granting its consent within 30 days after being requested to do so." The stated purpose for this modification was to lessen any "arbitrarily imposed obstacle to meeting Navajo needs."

In 1974, Congress enacted legislation designed to resolve the conflicting claims of the Navajo Nation and the Hopi Tribe to land within the 1934 Reservation. See 25 U.S.C. § 640d et seq. (1974) (the "1974 Settlement Act"). The 1974 Settlement Act gave the tribes the right to bring suit against each other for the purpose of determining their respective property rights in the 1934 Reservation.

25 U.S.C. § 640d-7; see Sekaquaptewa v. MacDonald, 619 F.2d 801, 809-10 (9th Cir. 1980).

On July 8, 1980, Congress amended the 1974 Settlement Act. See Pub. L. No. 96-305, 94 Stat. 929 (codified at 25 U.S.C. § 640d-9(f) (1980)) (the "1980 Amendment"). The 1980 Amendment codified the requirement, first imposed by DOI Commissioner Bennett, that the Navajo and Hopi obtain the consent of the other tribe before undertaking development projects within the Bennett Freeze area:

Any development of lands in litigation pursuant to section 8 of this Act and further defined as "that portion of the Navajo Reservation lying west of the Executive Order Reservation of 1882 and bounded on the north and south by westerly extensions, to the reservation line, of the northern and southern boundaries of said Executive Order Reservation," shall be carried out only upon the written consent of each tribe except for the limited areas around the village of Moenkopi and around Tuba City. Each such area has been heretofore designated by the Secretary. "Development" as used herein shall mean any new construction or improvement to the property and further includes public work[s] projects, power and water lines, public agency improvements, and associated rights-of-way.

25 U.S.C. § 640d-9(f) (1980).

The purpose of the 1980 Amendment was "to preserve the parties' rights subject to a final adjudication" of the tribes' respective interests in the affected area. Masayesva, 816 F. Supp. at 1397. The amendment did not grant either tribe the right to appeal to the DOI if its request for consent to a development project was denied. Following the enactment of the 1980 Amendment, the Hopi approved a few Navajo development projects within the Bennett Freeze area. On August 26, 1982, however, the Hopi imposed a moratorium on all further Navajo construction activities:

The Hopi Negotiating Committee . . . unanimously voted to place a moratorium on any and all construction activities, more specifically within the Bennett Freeze Order Area (BFOA), until certain issues have been addressed satisfactorily surrounding current and potential ...

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