From: Carol Halberstadt <carol@migrations.com>

Hi Bob,

Lee Brooke Phillips faxed me this summary of the February 22, 2000,
Manybeads hearing, and Donna Bassett very kindly keyed it in. He has asked
only that anyone who wishes to reproduce, disseminate, or publish this
document do so in its entirety, including the letterhead. Please post.

I'll also attach it as an MS Word document.

Thanks,

Carol
__________________________________

 

 

 

 

LAW OFFICE OF
LEE BROOKE PHILLIPS, P.C.
ATTORNEY AT LAW
224 E. Birch Avenue
Flagstaff, AZ 86001
e-mail: ntguilty@infomagic.net

LEE BROOKE PHILLIPS Tel: (520) 779-1560
State Bar No. 009540 Fax: (520) 779-2909

FAX COVER SHEET

DATE: MARCH 1, 2000

TO: Carol Halberstadt

FROM: Lee Phillips

RE: Manybeads v. U.S.

 

Summary of February 22, 2000, Ninth Circuit
Argument in Manybeads v. United States

Oral argument was presented in Manybeads v. United States of
America on February 22, 2000, before the three-judge panel in San
Francisco, California. Lee Phillips argued the case for the Navajo
plaintiffs, Katherine Hazard argued the case for the United States and Tim
Atkinson argued the case on behalf of the Hopi Tribe as Amicus Curie. The
three-judge panel consisted of Judge Noonan, Judge Pregerson and Judge
Thompson.
Mr. Phillips argued that the 1974 Relocation Law violated the First
Amendment's free exercise of religion rights of the Navajo individuals
living on land that was partitioned to the Hopi Tribe. He further argued
that the 1974 Relocation Law violated his clients' right to equal
protection of the law based on the United States' history of paying Indian
people for land that was occupied by non-Indians but ordering the Navajos
and Hopis to relocate from their land in this situation. Mr. Phillips
argued that the Navajo position was also strengthened by the passage of the
Religious Freedom Restoration Act in 1993. That act reinstated the
compelling interest test whenever the Federal Government passes a law that
burdens individuals free exercise of religion rights. This replaced a lower
standard that the Supreme Court had allowed in Oregon v. Smith, a case
involving use of peyote by Native Americans. This higher standard now
requires that the Federal Government demonstrate that they have a
compelling interest which justifies the burden on someone's religion and
that there are no less burdensome alternatives. The Navajos argue that
under the Religious Freedom Restoration Act the government has failed to
prove that they have a compelling interest which would justify relocating
the Navajos and further that there are less burdensome alternatives
available to the government which could settle the land dispute without
relocating the Navajos. Finally Mr. Phillips argued that even if the
government had a compelling interest in 1974 when the law was passed that
circumstances have changed and that now that interest is no longer
compelling in light of the number of people who have already relocated, the
small number of Navajos who are seeking to remain on Hopi partitioned lands
and the fact that the Hopi Tribe has agreed that the Navajos can remain
under the terms of the Accommodation Agreement.
The Federal Government argued that the Navajos have no First
Amendment right to remain on land that belongs to the Federal Government
and that the Federal Government made available for use by the Hopi Tribe
with the 1974 law. The Federal Government argued that the Navajo Tribe
received one half the disputed land and that the Hopi Tribe should receive
an equal share. The government also argued that any religious claim that
the Navajos may have has been satisfied by the Accommodation Agreement
which allows the Navajos [to] avoid relocation and to remain on their
ancestral land under a long-term lease with the Federal Government and the
Hopi Tribe. Finally the Federal Government argued that the Hopi Tribe is
adequately represented in the Manybeads lawsuit by the Federal Government
acting as trustee for the Hopi Tribe. As a result, the Federal Government
opposed the Hopi Tribe's request that the lawsuit be dismissed for the
government's failure to adequately represent it.
The Hopi Tribe argued that they have a direct interest in the
outcome of the Manybeads case because if the Navajos win the case, the
Federal Government would not be able to relocate Navajos from land that has
been given to the Hopi Tribe by Congress. They further argue that the Hopi
Tribe is a "necessary" and "indispensable" party to the lawsuit because it
directly impacts Hopi rights in the HPL. The Hopi Tribe argued it is a
sovereign Indian Nation and therefore has "sovereign immunity". Sovereign
immunity means that the Tribe cannot be forced to join the Manybeads
lawsuit and that the Court cannot make a decision in a lawsuit which
directly affects an Indian tribe unless the Indian tribe is a party to the
lawsuit. Finally the Hopi Tribe argued that the Federal Government is not
an adequate representative of the Hopi's position and that the lawsuit must
therefore be dismissed since the Hopi Tribe is not a party to the lawsuit
and will not agree to be a party.
If so, the 9th Circuit Court of Appeals reverse the decision of the
lower court which dismissed the Manybeads case. The Navajos are hoping that
the 9th Circuit will order the Manybeads case remanded to the Federal Court
in Arizona for a full trial on the Navajos religious claims and the Hopi
Tribe's claim that they are not adequately represented in the lawsuit by
the Federal Government. The Federal Government is asking the Court to
uphold the lower court's decision which dismissed the Manybeads case
because there is no First Amendment right to remain on Federal Land that
has been partitioned to the Hopi Tribe. The Hopi Tribe is asking that the
9th Circuit dismiss the Manybeads case because it is a necessary and
indispensable party to the lawsuit, will not agree to be part of the
lawsuit and cannot be forced to join the lawsuit.
The Court of Appeals could reverse the lower court's decision and
order the lower court to reconsider the Navajos religious claim in light of
the Religious Freedom Restoration Act and the Accommodation Agreement. In
the alternative the Court could uphold the dismissal of the Manybeads case
if it agrees with the U.S. that the Navajos have no religious right to
remain on the HPL. Finally the 9th Circuit could avoid the religious
question and simply rule that the case must be dismissed because the Hopi
Tribe is an indispensable party which cannot be forced to participate in
the lawsuit. A decision from the court could take several months.
If the Navajos win the appeal the Manybeads lawsuit will be
returned to Arizona for further proceedings. If the Navajos lose the appeal
they can ask for a reconsideration of the decision by all of the judges of
the Court of Appeals or they could make a direct request to the United
States Supreme Court to accept the case for review. The Supreme Court
decides whether it will accept a case for review or not. If the Supreme
Court accepted the Navajos appeal the Manybeads case would then be argued
before the United States Supreme Court. If the Supreme Court decided not to
accept the Navajo appeal that would end the Navajos' legal appeals of their
religious claims. If that happens the Navajos would be left with the option
of going back to Congress and asking for relief from the relocation law.
In the meantime, the Federal Government has indicated that it will
begin the eviction process for those Navajos who did not sign the
Accommodation Agreement. It is estimated that the eviction process will
take between one and two years to work its way through Federal Courts. No
one will be evicted by the Federal Government until that happens. It is
also estimated that approximately 84 individuals may ultimately face
eviction if the legal appeals fail. We will attempt to keep people updated
as we receive more current information on these issues. Thank you for your
support.

 

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-- Carol S. Halberstadt, Migrations (carol@migrations.com)
Native American art and crafts
http://www.migrations.com