Federal District Judge signs order to lift Bennett Freeze

WINDOW ROCK- The 40-year-old Bennett Freeze is history.

Federal District Judge Earl H. Carroll signed a five-page court order on Dec. 4 to dispose of all claims in the 1934 litigation between the Navajo Nation and Hopi Tribe. The order was filed by the Clerk of Courts on Dec. 5, which had the effect of lifting the 40-year-old Bennett Freeze and ending the hardships it created for thousands of Navajo and Hopi families.

"This is great," Navajo Nation President Joe Shirley Jr. said upon hearing the news. "This is the day Navajos have been waiting and praying so long for. What better Christmas present could there have been for our people?"

The order was delivered to the Navajo Nation's legal counsel in Phoenix on Dec. 5. Among nine provisions, the court order decrees that:

* The terms and provisions of the Intergovernmental Compact are approved and made a part of the order and final judgment.

* Title to the property interests established in the Intergovernmental Compact are quieted in accordance with the terms of the Compact.

* Any and all claims asserted by the Navajo Nation or the Hopi Tribe against the other in the action are fully and finally adjudicated by the order and final judgment and were dismissed with prejudice. Each party will bear its own attorneys' fees and costs.

* The Court found that no lands are any longer "in litigation" for purposes of 25 U.S.C. § 640d-9(f), and that the restrictions on development contained in that statute, commonly known as the "Bennett Freeze," are of no further force or effect.

"Navajos can build their homes and all they need is the normal procedures to go through the Navajo Nation to do that," Navajo Nation Attorney General Louis Denetsosie said. "And that covers all of the land that they now occupy. It was a remarkable achievement by the mediator and the tribal negotiating teams and the two councils, and I think it shows that the two tribes can do great things."

On Nov. 4, President Shirley, Hopi Vice Chairman Todd Honyaoma and Interior Secretary Dirk Kempthorne signed the historic Navajo-Hopi Intergovernmental Compact at the Heard Museum in Phoenix. That left only Judge Carroll's as the only required signature to end the long wait to have the freeze removed.

"What this agreement means is it's an era of a new and positive relationship between the Navajo and Hopi nations, and I'm very much looking forward to that, which is the way it should be-working together, complementing each other, standing side by side," said President Shirley in remarks following the signing of documents.

"I'm very much looking forward to working together on rehabilitating the land, building houses for the people out there on the land we used to call Bennett Freeze," the President said. "I'd like to see hospitals, schools, paved roads. It's about time."

The Bennett Freeze received its name from the late Commissioner of Indian Affairs Robert Bennett who imposed a construction, repair and development prohibition in July 1966 on a 1.5-million-acre area of land in the western Navajo Nation.

Its intent was to force the Navajo and Hopi tribes to settle their differences over the rights to the land.

Many years later, federal court decisions reduced the area to about 700,000 acres but the original federal attempt to coerce the tribes to the negotiating table by then had long been deemed an utter failure in policy.

For years, the issue languished. But four years ago, the tribes tried again on their own with the skillful assistance of a federal mediator, 9th Circuit Court of Appeals Senior Circuit Judge William Canby, Jr. An agreement was reached at last in January 2006 and was approved by the Navajo Nation Council and Hopi Tribal Council in September.

"This compact clearly is one of the most significant agreements the Navajo and Hopi Tribes have signed together," President Shirley said. "It resolves a 40-year-old dispute with no loss of land, no relocation, ensures the religious rights equally to both tribes and ends a development freeze that has kept the western portion of the Navajo Nation in a time warp since 1966."

President Shirley acknowledged the work of the Navajo-Hopi Land Commission, the commission's director Roman Bitsuie, the Navajo Nation Council, Navajo Nation Attorneys General Louis Denetsosie, Levon Henry and Herb Yazzie, and attorneys Terry Fenzl, Britt Clapham, Dan Jackson and Philip Kline.

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