Shay awaits decision on hearing

KYKOTSMOVI--The fate of Navajo relocation resister Kee Shay now lies with Judge Eldridge Coochise. In a precedent-setting action centering around tribal self-determination and sovereignty, the exclusion hearing of Navajo tribal member Kee Shay started four months ago, on May 22. Due to a series of delays and court continuances, the hearing has concluded.

At the center of the controversy lies the century-long 1882 Hopi and Navajo land issue. Kee Shay, A Navajo, lived on lands claimed by both tribes. In 1974, Congress partitioned the 1882 Hopi reservation. In a population enumeration, Kee Shay’s residence was listed as on the Navajo side of the partition (NPL). But Kee Shay had temporary residences and grazed his livestock on both the NPL and the lands partitioned as exclusive Hopi reservation, (Hopi Partitioned Land). Kee Shay, along with several Diné (Navajo) residing in the Big Mountain area, north of Dinebito Trading Post, became active resisters of the 1974 Congressional law partitioning tribal lands and ordering the relocation of Navajos and Hopis located on what Congress deemed the inappropriate side of the partition line.

All Hopis affected by the legislation relocated to the Hopi side of the partitioned land. But some Navajos remained on Hopi lands. After many years of controversy, negotiation and hard work, the Hopi and Navajo tribes finally formulated an Accommodation Agreement for Navajos who wished to remain on Hopi reservation land. Hopi tribal officials maintain that since Kee Shay was counted as residing on the NPL, he is not eligible for such an accommodation. They seek his exclusion from the HPL, because they maintain that he continues to illegally run livestock on the land and personally trespasses on Hopi land.

Early in the hearing, Kee Shay’s legal advisors, Reed Tso and Mick Harison sought a case dismissal, arguing that the Hopi Tribe lacked jurisdiction in the case. Tso argued that the Hopi exclusion request was a thinly-veiled eviction order. Tso maintained that any eviction should be done by the federal government, not the Hopi Tribe.

Championing the cause of tribal sovereignty and self-determination, Hopi General Counsel Scott Canty argued that, "Shay is not entitled to the protection of relocation laws, not eligible for the accommodation agreement, not in a class of resisters and is simply a trespasser."

Kee Shay received notice of a Hopi Proposed Order of Exclusion on April 27, 1999. The documents alleged that Kee Shay did not have permission to reside on the Hopi reservation and his hogan and livestock were illegally on Hopi land.

Hopi tribal official Eugene Kaye testified that Kee Shay had no permit from the tribe for his livestock or his buildings.

Judge Coochise considered both arguments, and concluded that Hopis have jurisidiction over their own reservation land and who is allowed on that land. The hearing proceeded.

In closing arguments this week, Hopi attorney Canty stated, "This is Hopi land, and it is the Hopi who have the right to determine who may stay on their land."

Navajo advocate Tso argued that since Kee Shay’s birth predated the origins of the Hopi Tribal Council (incorporated as an Indian Reorganization Act Tribe by Hopi vote in 1936). he was born on reservation land and should be allowed to remain there. "For the past 300 years, the Hopi people permitted others who sought refuge to stay on their land," Tso argued. "They are denying Shay this same consent."

Judge Coochise is taking both arguments under consideration. He announced that it will take some time to decide the case. A decision is expected sometime in November.

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