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