FLAGSTAFF, Ariz. — When the Navajo and Hopi tribes agreed to end a
decades-long land dispute in Arizona’s Black Mesa region, they also said they
wouldn’t interfere with each other’s religious practices.
Under the 2006 agreement, Navajos could access sacred springs and gather
medicinal plants from the Hopi reservation. In turn, Hopis could do the same,
and gather eaglets from the cliffs and mesas of the Navajo Nation to offer as a
sacrifice without fear of violating tribal laws.
But the Hopi Tribe contends the Navajo Nation has breached that agreement by
citing a Hopi religious practitioner in May for trespassing on part of the
Navajo reservation that belongs to an individual tribal member rather than the
Navajo Nation, known as allotted land. A lawyer for the Hopi Tribe, Tim
Macdonald, argued in a federal lawsuit filed this week that the Navajo Nation
clearly relinquished the right to enforce certain laws in the agreement to
protect religious rights.
Macdonald is asking a judge familiar with the feuding tribal neighbors to
declare designated areas of the Navajo reservation open to Hopi religious
practitioners, or order a joint commission set up to hear disputes arising from
the agreement to make a decision. The commission has said it does not have
jurisdiction over the allotment holders.
“The Navajo Nation has announced that it will continue preventing members of
the Hopi Tribe from engaging in religious activities permitted under the compact
if those religious activities involve coming onto allotments,” Macdonald wrote.
The case draws attention to large parcels of land that the federal government
gave to individual tribal members before the 1930s in an effort to assimilate
them as farmers. The federal government holds title to most land within American
Indian reservations on behalf of the tribes, but it also is the trustee for
individual tribal members who have scattered allotments within reservations.
Ownership on the allotments has become highly fractionalized as they were handed down by
families through generations.
Navajo Nation Attorney General Harrison Tsosie said Wednesday that although the
tribe has the authority to police allotted lands, it cannot consent to having
Hopi religious practitioners or anyone for that matter cross the land on behalf
of the owners because they have rights similar to private property owners off
“Our position is: If you’re going to cross the allotments, you need to make a
request to the allottees and have them give you some kind of written consent to
do so,” he said. “And the federal government needs to be aware that you’re
going to cross.”
In the lawsuit, Macdonald writes that the Navajo Nation has legislative,
executive and judicial jurisdiction and sovereignty over the allotments,
suggesting the tribe’s position that it cannot consent to Hopis crossing the
land is one of anti-sovereignty.
Of particular interest to Hopis is access to sites to gather nesting eagles, a
centuries-old tradition that occurs each spring. The Hopis raise the eaglets in
villages that rise above the surrounding desert and sacrifice them once they’ve
matured, giving the birds’ feathers to certain tribal members to be used in
other ceremonies and rituals.
The golden eagle also plays a role in the religion of the Navajo, who use the
birds’ feathers to protect themselves from harm and as sacred adornments. But
the Navajo don’t agree with the Hopi practice of killing eagles.
A confidential map included in the 2006 agreement shows the gathering sites.
Tsosie said it doesn’t particularly address allotments but that discussions
prior to its signing made clear they were off-limits unless the allotment
holders agreed to access. According to the lawsuit, the Navajo Nation regularly
issues permits to the Hopi to collect eagles from allotments and has provided
police escorts to shrines on allotments.
Cris Stainbrook, president of the Minnesota-based Indian Land Tenure
Foundation, said tribes often grapple with access to cultural and sacred sites
on and off reservations. Unless those rights are clearly defined in writing, he
said “they basically are only allowed access to those sites at the good graces
of the federal government or their neighbors.”