Vernon MASAYESVA, Chairman of the Hopi Tribal Council of the Hopi Indian Tribe, For and on Behalf of the HOPI INDIAN TRIBE, Plaintiff,
v.
Peterson ZAH, Chairman of the Navajo Tribal Council of the Navajo Indian Tribe, For and on Behalf of the NAVAJO INDIAN TRIBE, Defendant,
v.
Evelyn JAMES, et al., Intervenors.
No. CIV 74-842 PCT EHC.
United States District Court, D. Arizona.
July 10, 1992.*900 James E. Scarboro, Alfred T. McDonnell, Mary Gabrielle Sprague, David C. Warren, Arnold & Porter, Denver, Colo., W. Scott Bales, Lawrence A. Hammond, Meyer, Hendricks, Victor, Osborn, Maledon, Phoenix, Ariz., Michael P. O'Connell, General Counsel, Hopi Indian Tribe, Kykotsmovi, Ariz., for plaintiff.
Terry E. Fenzl, Craig Soland, John Rogers, Amy Gittler, Dolph Barnhouse, Peter Osetek, Brown & Bain, P.A., Phoenix, Ariz., for defendant.
K. Jerome Gottschalk, Robert M. Peregoy, Edgar T. Bristow, Native American Rights Fund, Boulder, Colo., for intervenors.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
RE: SAN JUAN SOUTHERN PAIUTE CLAIMS
EARL H. CARROLL, District Judge.[*]
INTRODUCTION
Plaintiff Vernon Masayesva is the duly authorized Chairman of the Hopi Tribal Council of the Hopi Tribe, and appears herein as representative of the Hopi Tribe and its villages, clans and individual members.
Defendant Peterson Zah is the duly authorized Chairman of the Navajo Tribal Council, and appears herein as representative *901 of the Navajo Nation[1] and its chapters, clans, and individual members.
Evelyn James is the duly authorized spokesperson of the San Juan Southern Paiute Tribe and appears herein in her representative capacity on behalf of the San Juan Southern Paiute Tribe and its individual members.
In 1974, the Hopi Tribal Chairman commenced this action pursuant to 25 U.S.C. § 640d-7[2] to determine Hopi rights and interests in the reservation created by the Act of June 14, 1934, 48 Stat. 960 (1934) (the "1934 Act"). The 1934 Act described the external boundaries of the Navajo Reservation, and conveyed an equitable interest in certain of these lands to the Navajo Nation and "such other Indians as may already be located thereon."[3] The Navajo Nation counter-claimed.
On August 16, 1982, Evelyn James, on behalf of the San Juan Southern Paiute Tribe (the "Paiutes" or "Paiute Tribe"), filed a petition to intervene in this action, which the District Court (Judge Copple) denied. In a memorandum decision the Ninth Circuit reversed, holding that the motion to intervene was not untimely and that if the San Juan Southern Paiutes were a tribe, they fell within the jurisdictional grant of 25 U.S.C. § 640d-7. Sidney v. Zah, 725 F.2d 691 (9th Cir.1983). On remand, this Court entered an order allowing the Paiutes to intervene "subject to further order of this Court concerning whether the intervenor is a `tribe' so as to satisfy the grant of jurisdiction in 25 U.S.C. § 640d-7, said issue to be determined at the conclusion of trial."
The Assistant Secretary of Indian Affairs, in the exercise of authority delegated by the Secretary of Interior, published a "Notice of Final Determination that the San Juan Southern Paiute Tribe Exists as an Indian Tribe" on December 15, 1989. 54 Fed. Register 51502 (December 15, 1989). On appeal, this Court upheld the recognition of the Paiutes, and held that it therefore had jurisdiction to determine their interests in the 1934 Reservation as "any other tribe of Indians", pursuant to 25 U.S.C. § 640d-7. However, this Court also held that 25 U.S.C. § 640d, et seq. did not authorize this Court to partition land to the Paiute Tribe or to declare any land held *902 exclusively by the Paiutes to be a reservation for the Paiutes. The Paiutes will thus not participate in Phase II of this litigation regarding partition.
This Court previously issued Findings of Fact and Conclusions of Law regarding the Hopi Tribe's rights and interests in the 1934 Reservation, 793 F.Supp. 1495. These Findings and Conclusions will address the rights and interests of the San Juan Southern Paiute Tribe.
As detailed in the Findings of Fact and Conclusions of Law regarding the Hopi Tribe's rights and interests, certain lands are excluded from the assertion of Hopi and Paiute interests, including (1) the 1882 Reservation, (2) certain lands previously reserved by Congress for water power purposes and power sites, (3) lands reserved by the 1868 Treaty with the Navajo Nation, 15 Stat. 667, (4) lands withdrawn by the Act of May 23, 1930, 46 Stat. 378, (5) lands withdrawn the Act of February 21, 1931, 46 Stat. 1204, (6) allotted lands for which patents issued, § 640d-16(a)[4], (7) lands purchased on behalf of the Navajo Nation, (8) privately owned lands relinquished pursuant to Section 2 of the 1934 Act, and (9) lands conveyed to the State of Arizona for the "support of the common schools" which were surveyed prior to withdrawal of the land pursuant to Executive Order. All other lands within the 1934 Reservation, including allotted lands for which patents did not issue, and "school lands" which were unsurveyed or surveyed after withdrawal of the land pursuant to Executive Order, are subject to Hopi and Paiute claims. The location of these "excluded" lands will be established in Phase II of this litigation.
As discussed in the Findings of Fact and Conclusions of Law regarding Hopi claims, the interests of the Hopi and Paiute Tribes are based on "occupation, possession, or use" in 1934. Sekaquaptewa v. MacDonald, 448 F.Supp. 1183 (1978) (hereinafter, "Sekaquaptewa I"), aff'd in part, rev'd in part, Sekaquaptewa v. MacDonald, 619 F.2d 801, 808 (hereinafter, "Sekaquaptewa II"), certs. denied, 449 U.S. 1010, 101 S.Ct. 565, 66 L.Ed.2d 468 (1980). "Occupation, possession, or use" must be substantial and sufficiently intensive in order to create a property interest in the 1934 Reservation, though the use does not have to be for subsistence purposes. Use by a few isolated individuals, especially when away from traditional use areas of that individual's Tribe, and irregular or sporadic uses are not sufficient. However, because seasonal use is general in Indian land use patterns, substantial seasonal use is sufficient for this Court to find "occupation, possession, or use" of the land.
After the areas which the Paiutes occupied, possessed, or used are identified, "Navajo interests are identifiable as the residue." Sekaquaptewa II, 619 F.2d at 808. Although the Court does not have authority to partition land to the Paiutes even if that land was occupied exclusively by Paiutes, the Court will address Navajo use of lands on which the Paiute Tribe has proved Paiutes were located in 1934, in order to decide whether Paiutes were "exclusively" or "jointly" located on that land.[5]
FINDINGS OF FACT
The San Juan Southern Paiute Tribe ("the Paiutes" or "Paiute Tribe") is one of the constituent tribes of the Southern Paiute Nation. By the late 19th or early 20th century, Paiute territory in Arizona had been divided into a northern and southern area by an influx of Navajos coming into the area as a result of the federal government's actions against the Navajos beginning *903 in the 1860's.[6] In both the northern and southern area, the Paiutes practiced a "transhumant" lifestyle, or one in which they moved seasonally with their livestock. They would winter in one or more dwellings, and in spring move to their agricultural areas for planting. After fall harvest, they would move back toward their winter camps.
The Paiute Tribe claims the northern group consisted of 43 Paiutes who generally used the area near the Arizona-Utah border around Paiute Canyon, Paiute Mesa, the Rainbow Plateau, and the Shonto Plateau, within Land Management Unit 2 ("LMU2"). The Navajo Nation claims that Navajos also used these areas.
The Paiute Tribe further claims that the southern group consisted of 40 Paiutes and that they generally used areas west of Tuba City, around Willow Springs, the Gap, Bodaway Mesa, Cedar Ridge, Cedar Tree Hills, and the area known as Atatsiv, bounded on the north by Crooked Ridge, on the west by Echo Cliffs, on the south by the edge of the Kaibito Plateau, and on the east by the western edges of Preston Mesa and White Point, within Land Management Unit 3 ("LMU3"). The Navajo Nation claims that Navajos used these areas, as well.
The Court will determine the areas in which Paiutes farmed, grazed livestock and engaged in other traditional activities. Navajo use of these areas will be examined only where the Court finds Paiutes were located in 1934.
I. Farming
A. Southern group
As an initial matter, the Paiute Tribe claims that 40 people were members of the southern Paiute group.[7] The Navajo Nation argues that only 30 people were members of the southern group.[8] The Court *904 finds that all 40 people listed in Ex. 1403 were members of the southern Paiute group in 1934.
The Paiute Tribe contends that the southern group farmed at Upper Willow Springs, at Cedar Ridge and near White Point.
1. Upper Willow Springs
The Paiute Tribe introduced substantial evidence that Paiutes farmed in Upper Willow Springs (Kanavaats) in 1934.[9] Witness testimony[10] and government documents[11]*905 confirmed that Paiutes had fields and residences at Willow Springs.
The Navajo Nation, while agreeing that some Paiutes farmed in this area, contends that they farmed only four acres.[12] The Navajo Nation does agree, however, that the total area used by Paiutes in Willow Springs for dwellings, corrals, and farming was close to ten acres.
Further, the Navajo Nation agrees that no Navajos farmed at Upper Willow Springs,[13] but asserts that Navajos did farm at three locations close to Upper Willow Springs, including Hidden Spring (just north of Upper Willow Springs), at fields one-half mile west of Upper Willow Springs, and at Lower Willow Springs (six-tenths of a mile south).[14] The Paiute Tribe agrees that Navajos farmed at Lower Willow Springs in 1934. The Navajo Nation also argues that Navajo livestock were brought to Upper Willow Springs to water.[15] Uses other than farming will be addressed in a later section.
The Court finds that the preponderance of the evidence shows that Paiutes farmed 10 acres at Upper Willow Springs in 1934, and that no Navajos farmed in this area.
2. Cedar Ridge
The Paiute Tribe contends that Paiutes farmed in the Cedar Ridge (Yuvwingwava) area in 1934.[16] The Navajo Nation argues *906 in turn that the Paiutes failed to establish that Paiute fields existed in 1934,[17] and that Navajos farmed in the Cedar Ridge area in 1934.[18] The Court finds that the preponderance of the evidence shows that no Paiutes were farming at Cedar Ridge in 1934, and that Navajos farmed this area.
3. White Point
The Paiute Tribe contends that two Paiute families had fenced dry farms and adjacent residences at White Point (Hookwamukanich) in 1934.[19] The Navajo Nation argues that the only proven Paiute farming did not continue past the mid-1930's.[20] However, the Navajo Nation did not contradict the evidence presented that Paiutes were farming in this area in 1934. The Court finds that Paiutes farmed near White Point in 1934.
The Navajo Nation also introduced evidence that Navajos farmed at White Point in 1934.[21] This is not contested by the Paiute Tribe. The Court finds that the limited area farmed by Paiutes at White Point was jointly used by Navajos and Paiutes in 1934.[22]
B. Northern group
The use area of the northern group of Paiutes falls within Land Management Unit 2 ("LMU2"), to the south and southeast of Navajo Mountain. In 1934, the Paiutes of the northern group spent winters at the Utah/Arizona border, and moved into Arizona to the Paiute Canyon area to farm during the summer.[23]
The Paiute Tribe claims that the northern group consisted of 43 people.[24] The *907 Navajo Nation contends that only 38 people were members of this northern group.[25] The Court concludes that all 43 individuals listed on Ex. 1403 were members of the northern Paiute group.
The Paiute Tribe claims that the northern group of Paiutes farmed in two areas in 1934: on the Rainbow Plateau and in Paiute Canyon.
1. Rainbow Plateau
The Paiute Tribe argues that a Paiute named Toby Owl had a three-acre dry farm on the Rainbow Plateau.[26] The Navajo Nation argues that there is contradictory evidence of the location of the field,[27] and government documents do not mention Paiute farming on the Rainbow Plateau.[28]*908 The Court finds that Toby Owl did not farm on Rainbow Plateau in 1934.
2. Paiute Canyon
The Paiute Tribe introduced substantial evidence that Paiutes farmed throughout Paiute Canyon, including expert testimony,[29] lay testimony,[30] and government documents.[31] The Navajo Nation concedes that Paiutes farmed in Paiute Canyon, though there is disagreement as to what plots were cultivated in 1934, and whether any of those plots were farmed exclusively by Paiutes. In general, the Paiute Tribe argues that Paiutes farmed at least 60 acres of land,[32] while the Navajo Nation argues that the Paiutes farmed only 26.84 acres in 1934.[33] Each field area within Paiute Canyon will be addressed separately.
SCS field 1 (one field in the middle of Franklin field area 1): Although the Paiute Tribe maintained in its Proposed Findings that Franklin field area 1 was used exclusively by Paiutes,[34] in its response to the Navajo Proposed Findings, the Paiute Tribe acknowledged that Navajos also farmed in Franklin field area 1.
The Navajo Nation argues that eleven Navajos and one Paiute farmed in SCS *909 field 1.[35] The Paiute Tribe argues that there were only eight Navajos farming in field area 1.[36]
This Court accepts the SCS findings that eleven Navajos and one Paiute were farming SCS field 1.[37] Because there is no evidence to determine the portion of SCS field 1 farmed by Paiutes, the Court finds that SCS field 1 was farmed by Paiutes and Navajos, and that Lester Willetson, a Paiute, farmed 1/12 of that field.
SCS field 1.3 (Franklin field area 2): The Paiute Tribe contends that field 1.3 was used exclusively by Paiutes.[38] The Navajo Nation agrees that Lester Willetson, farmed in SCS field 1.3, but argues that two Navajos (Sid Whiskers ("Dagah") and Hosteen Altsoii sie igi) also farmed in this field.[39]
The record establishes that Sid Whiskers (Dagah), was married to Mercy Whiskers, a member of the Paiute Dick ambilineage. When Sid Whiskers married Mercy, he moved to her customary use area, which included field 1.3. Under San Juan Southern Paiute custom, access and rights to fields are determined by membership in a Paiute ambilineage; spouses do not acquire a right to property controlled by an ambilineage, and Sid Whiskers had no right to farm these fields apart from his relationship with Mercy Whiskers.[40] Further, Dr. Russell testified that the SCS recorded men as the owners of property, rather than women, which contravened both Navajo and Paiute systems of land *910 tenure.[41] The Navajo Nation did not contradict Dr. Franklin's testimony that field 1.3 was controlled by the Paiute Dick ambilineage.
The Court finds that the Navajos' rights and interests in the land is affected by the customs of the San Juan Southern Paiute Tribe: if Navajos gain access to a parcel of land only through their association with Paiutes, and Paiutes control the use of the land, the Navajo Nation will not gain a property interest in that land. Sid Whiskers gained no property rights to field 1.3 under the Paiute system of land tenure, and cannot be said to have "occupied, possessed, or used" the land within the meaning of the 1934 Act or 25 U.S.C. § 640d-7.
Further, "Hosteen Altsoii sie igi" was not identified at trial, and Dr. Russell admitted on cross-examination that his Navajo informants told him that field 1.3 belonged to the Paiutes in 1934.[42] The Court finds that SCS field 1.3 was farmed exclusively by Paiutes in 1934.
SCS field 1.4 (Franklin field area 3): The Paiute Tribe argues this field area was farmed exclusively by Paiutes.[43]
The Navajo Nation argues that SCS field 1.4 (Franklin field area 3) was farmed by one Navajo and one Paiute (Lester Wilitison [sic] and Wola ghi), as reflected on the LMU2 Agronomy Report.[44] However, there was no evidence that Wola ghi was Navajo.[45]
Given that there was substantial evidence that only Paiutes utilized this field, this Court finds that SCS field 1.4 was exclusively farmed by Paiutes.
SCS field 1.5 (uncultivated area within Franklin field area 3): The Navajo Nation contends that field 1.5 was farmed exclusively by Navajos in 1934, based on information contained in the 1937 LMU2 Agronomy Report.[46] The Paiute Tribe contends that field 1.5 was uncultivated in 1934, and was within the control of Paiutes.[47]
The Court finds that the evidence shows that SCS field 1.5 was not farmed by Navajos in 1934, and was within the traditional use area of the Paiute Dick ambilineage. Thus, this Court finds that SCS field 1.5 was exclusively farmed by Paiutes in 1934.
SCS field 2 (Franklin field area 4); The Paiute Tribe argues Franklin field area 4 was utilized solely by Paiutes in 1934.[48]*911 The Navajo Nation responds that SCS field 2 was farmed by one Paiute and two Navajos (Gwi ja jah, Dugali [Dagah], and Yellow Salt).[49] However, there is evidence that this field was under the control of the Paiute ambilineage system. Dugali (Dagah, or Sid Whiskers) was married to Mercy Whiskers, and obtained no property interest in the land through the Paiute land tenure system.[50] Yellow Salt, also a Navajo, was living with Carrie Nelson (Nátsitsi), a Paiute woman whose ambilineage had ownership to the field, and after her death in 1939, Yellow Salt ceased to farm this field.[51] As with Sid Whiskers, Yellow Salt did not obtain a property interest in SCS field 2 under the 1934 Act.
This Court finds that SCS field 2 was farmed exclusively by Paiutes.
SCS field 2.1 (Franklin field areas 5 and 6)
The Paiute Tribe claims that Franklin field areas 5 and 6 were utilized solely by Paiutes.[52] The Navajo Nation argues that SCS field 2.1 was farmed by three Paiutes and three Navajos.[53]
The Court concludes that SCS field 2.1 was farmed exclusively by Paiutes in 1934, or alternatively that if Navajos farmed in this field, they did so with Paiute permission and did not thereby gain a property interest.
SCS field 3 (Franklin field area 7): The Navajo Nation argues that SCS field 3 was farmed exclusively by Navajos in 1934.[54]
The Paiute Tribe agrees that this area was farmed by Navajos in 1934, but argues that one of the four plots within this field *912 was jointly farmed by Sid Whiskers (Dagah) and his wife Mercy Whiskers.[55] The Court finds that SCS field 3 was occupied by Navajos and Paiutes in 1934, and that the Paiute Tribe has an interest in 1/8 of that field, or 2.25 acres.
SCS unlisted area (Franklin field area 8): The Paiute Tribe claims that Franklin field area 8 was farmed exclusively by Paiutes in 1934.[56] The Navajo Nation argues that Franklin field area 8 was not in existence in 1934.[57] The Court concludes that Franklin field area 8 was not under cultivation in 1934, and was not within a traditional use area of a Paiute ambilineage.
Residence locations away from fields
There are limited disputes regarding the residence locations of the Paiutes who farmed in Paiute Canyon. The evidence supports the proposition that the Paiutes lived adjacent to their fields while farming.[58] The Paiutes also claim they had additional residences sites in Paiute Canyon downstream (north) from the field areas.[59]
Although the Navajos agree that Paiute residences were located next to field areas, they disagree that Paiutes had residences downstream from the field areas.[60] No such sites downstream were recorded by Drs. Bunte, Franklin, Donald Collier or the SCS.
The Court finds that the Paiutes did not occupy residence sites in Paiute Canyon, other than those adjacent to their field areas.
Total acreage "occupied, used or possessed" by
Paiutes and Navajos in Paiute Canyon
Field no. Total Paiute Navajo
Acreage Acreage Acreage
1 37 3.08 33.92
1.3 2 2 0
1.4 1.5 1.5 0
1.5 5 5 (uncultivated) 0
2 11 11 0
2.1 39 39 0
3 18 2.25 15.75
_____ _____ _____ _____
Total: 113.5 63.83 49.67
*913 SCS fields 1.1, 1.2, 9, 10, 11, and 12 were created between 1935 and 1937,[61] and the Paiute Tribe does not gain a property interest in those fields under the 1934 Act.
This Court finds that the field areas in Paiute Canyon constituted a joint use area, and that the Paiute Tribe has an interest in 63.83 acres.[62]
II. Grazing
A. Southern group
Number of livestock owned: The Paiute Tribe claims that the southern group had 149 sheep, 16 goats, and 42 horses and burros, for a total of 365 sheep units in 1934.[63]
The Navajo Nation contends that Dr. Bunte's estimate of livestock in 1934 is erroneous for four reasons: (1) Dr. Bunte increased sheep and goat estimates to account for the government livestock reduction programs, even though there was no evidence that Paiute flocks were reduced, (2) she increased the number of horses because she believed that the horse reduction occurred in 1937 rather than in 1939;[64] (3) she added herds for Paiutes who had not been listed as owning sheep and goats on any government livestock census or permittee list;[65] and (4) she failed to recognize that people who dipped livestock for others were often listed as owning those livestock.[66]
The Paiute Tribe argues in turn that there is no reason to assume that Paiute goat and sheep were not reduced, and that informants could not provide detailed information because Paiutes apparently did not focus on the event to the extent Navajos did.[67] In fact, the Paiute Tribe argues that government documents demonstrate that the smaller owners were hit harder than larger owners.[68]
The Paiute Tribe also argues that the SCS missed the livestock of Blue Lee and Connie Yazzie and underestimated the number of sheep in other herds.[69] Other documents show Connie Yazzie with a sheep herd,[70] and Blanche Preston, a Navajo, testified that she saw Yazzie grazing *914 sheep in 1934.[71] Despite the inconsistencies in the government documents regarding individual ownership, the documents are relatively consistent regarding the total number owned by the southern group.
The Court finds that the SCS 1937 livestock census is the best evidence of the number of livestock owned by Paiutes in 1934; the Paiutes were recorded as owning 90 sheep and goats, no cattle, and 24 horses in LMU3.[72] This information was generally corroborated by Paiute witness Blue Lee.[73]
The Court finds that the preponderance of the evidence shows that the Paiutes in the southern group owned 210 sheep units in 1934. Although the claims of the Paiute Tribe to the 1934 Reservation are based on Paiute "occupation, possession and use" in 1934, and not on the number of animals owned, the amount of livestock may reflect the feasibility of the proposed grazing areas.
Grazing areas: As discussed earlier, in 1934 the Paiutes had a transhumant lifestyle, in which they would move seasonally with their livestock, spending the winter in one or more dwellings and moving to their agricultural areas for planting in the spring.
The Paiute Tribe contends that the Paiutes of the southern group grazed their livestock in an area called "Atatsiv" (the SW portion of the Kaibito Plateau), bounded on the north by Crooked Ridge (Kaavich), on the west by Echo Cliffs, the south by the edge of the Kaibito Plateau and on the east by the western edges of Preston Mesa (Kwanantsi) and White Point (Hookwamukwánich). "Atatsiv" means sand or sandy area in Paiute.[74] Dr. Bunte admitted that when Paiute informants used the word "Atatsiv", the exact boundaries of the area to which they referred may have been different.[75] The Court will make its determinations on more specific testimony regarding grazing areas than a general reference to "Atatsiv".
The Paiutes claim they would spend the winter around Black Peak (Tuukwarur 2),[76] at Sites S-2, 5, 7, 8, 10, 13, 14, and 38, depicted on Ex. 1415.12. The Navajo Nation agrees that the Paiutes spent the winter southeast of Black Peak, but do not agree that all of the listed sites were occupied in the winter of 1934.[77] The Court finds that Sites 8, 10, and 38 were occupied in the winter of 1934. No sites at Black Peak were occupied in 1934.
The Paiutes argue that in the winter, they would graze livestock around Black Peak, toward Crooked Ridge, Preston Mesa and White Point.[78] The Navajo Nation responds that Paiute grazing was limited to an area covering a few hundred acres *915 around their winter sites near Black Peak, and that except expert testimony, there was no evidence that Paiutes grazed along Crooked Ridge, and toward Preston Mesa and White Point.[79] The Navajos agree that Paiutes watered their livestock at Willow Springs, and grazed their livestock southeast of Black Peak during the winter.[80]
The Court finds that in the winter, Paiutes grazed their livestock in a 2 mile radius around Sites S-8, S-10 and S-38 around Hamblin Ridge (Turukwíokwich), to Aayuxwich (no English translation), and to Willow Springs to water livestock.[81]
The Paiutes would move to Willow Springs in the spring to plant. There they would herd their sheep in a common herd above Willow Springs on the Kaibito Plateau.[82]
The Paiutes claim that when their livestock were not in a common herd in the summer, they would herd on the plateau around sites S-1, 3, 4, 6, 9, 17, 18, and 21, depicted on Ex. 1415.12.[83] The Navajos argue that most of these sites were not used in 1934.[84] The Court finds Sites S-1 and S-4 were used in 1934.
In addition, the Paiutes claim that Alfred Lehi and Connie Yazzie grazed their livestock near their White Point farms.[85] Although Lee testified that he saw Lehi and Yazzie grazing sheep at Aayuxwich (around Site S-1), there is no other evidence that Lehi and Yazzie grazed at White Point. Furhter, it is not likely that they grazed their livestock in this area, because they travelled to White Point and back to Willow Springs on the same day.[86]
Finally, the Paiute Tribe claims that there was a large area northwest of Atatsiv used by the Lee and Casey families for grazing livestock, which was used sporadically during the 1930's, possibly in 1934.[87] However, this evidence did not establish use in 1934.
The Paiute Tribe claims that within this general grazing area, there was an area of intensive Paiute grazing, depicted on Ex. 1415.13, which was used by each family in the south every year.[88] The area outside of this intensive area was used less regularly.[89]
The Navajos argue that the small number of Paiute livestock could not have possibly grazed "intensively" over this large *916 area.[90] Further, Blue Lee, who was responsible for the entire common herd, testified that he returned home every night with the herd.[91] The Navajos argue that because sheep are typically herded two or three miles at most from their corral in the summer,[92] the herding area was restricted around the Willow Springs corrals. However, this ignores the use of Sites S-1 and S-4.
The Navajo Nation further contends that the government documents cited by Dr. Bunte do not support her opinion,[93] and that Dr. Bunte did not have the expertise to develop opinions on grazing practices. Moreover, the Paiutes were unable to provide evidence on the daily herding patterns employed by their group members, and Dr. Bunte did not have opinions regarding how far sheep were moved during the day before being brought back to the corrals at night.[94]
The Court finds that the evidence supports the conclusion that in the summer, Paiutes grazed within a 2 mile radius of Willow Springs and Sites S-1 and S-4, but within the boundaries of the "intensive" grazing area depicted on Ex. 1415.13A.
The Paiute Tribe claims that much of this area was an area of exclusive Paiute grazing, as depicted on Ex. 1418. The Paiutes argue that any Navajos grazing within this area did so only with permission of the Paiutes or over their objection, and that Paiutes attempted to keep Navajos out of this area.[95]
However, there is little evidence that Navajos grazing in this area did so only with Paiute permission. Dr. Bunte testified that she had heard of only one incident of a Paiute attempt to exclude Navajos, but could not say when the event took place, or the name of the Navajo involved.[96] Further, Dr. Bunte testified that Blanche Preston had Paiute "permission" to use the area, who testified at trial that no such arrangement existed.[97]
The evidence shows that much of the Kaibito Plateau was also grazed by Navajo livestock. In 1937, the LMU3 Range Management Report listed 12 Navajo families and 4,477 Navajo sheep units in the area around Willow Springs and Tuba Butte, 16 Navajo families and 10,200 Navajo sheep units in the area east of Gap and south of Crooked Ridge, and three Navajo families and 1,200 Navajo sheep units at White Point. While Navajo use decreased during the winter, the Range Management Report confirmed that at least eight Navajo families with 1,550 Navajo sheep units resided and herded in that area in the winter.[98]*917 The SCS also recorded over 60 Navajo families with 14,000 Navajo sheep units who summered in the area of Crevis ("Buckskin") Well, east of Gap and south of Crooked Ridge.[99] Other government documents also recorded Navajo presence in the area.[100]
Dr. Russell's field work in the southern area documented Navajo camps throughout the claimed Paiute "exclusive" area, and grazing areas occupying much of the Kaibito Plateau.[101] Even if a conservative grazing area of 2 miles is drawn around each residence site, the Navajos grazed over the *918 entire claimed "exclusive" area. The record reflects that Dr. Russell's camps existed in 1934.
Although the Paiute Tribe argues that Dr. Russell placed only Navajo summer camps in the claimed "exclusive" area (and Camp 186, which overlapped the northwest corner of the exclusive area),[102] seasonal use of this magnitude is sufficient to establish a property interest in the land.
Finally, both Navajos and Paiutes testified that Navajos grazed in this area,[103] confirming Dr. Russell's findings.
The Court finds that the southern Paiute group grazed its livestock in a 2 mile radius around Sites S-8, S-10 and S-38 around Hamblin Ridge (Turukwiókwich), to Aayuwich (no English translation), and to Willow Springs to water livestock in the winter. In the summer, the southern Paiute group grazed its livestock within 2 miles of Willow Springs, and within 2 miles of Sites S-1 and S-4, but within the boundaries of the "intensive" grazing area depicted on Ex. 1415.13A. Navajos grazed throughout this area, as well, and the Court finds that area was jointly used, except for Upper Willow Springs, which was an area used exclusively by Paiutes.
B. Northern group
Number of livestock owned: The Paiute Tribe contends that the northern group had *919 264 sheep, 147 goats, 16 cattle, and 67 horses and burros for a total of 810 sheep units.[104]
The Navajo Nation claims that Dr. Bunte's estimates are flawed because: (1) she increased the livestock figures to account for livestock reduction, even though there is no documentary evidence that Paiute livestock was reduced and none of her informants told her how many livestock were taken;[105] (2) Dr. Bunte treated all of the livestock owned by Sid Whiskers as belonging to his wife (who was not given a livestock permit and was never recorded as a livestock owner by the government);[106] and (3) she included livestock owned by Curtis Lehi, whom the Navajos claim was a Ute. The Navajo Nation instead urges the Court to adopt the figures in the 1937 SCS livestock study.[107]
The Court has found that Curtis Lehi was a Paiute, and his 139 sheep units will be treated as Paiute.[108] Further, the evidence shows that Mercy Whiskers, and not Sid, owned the family's herd.[109]
Because the Paiute Tribe failed to introduce evidence to what extent Paiute livestock was affected by the government livestock reduction program, the Court will adopt the SCS figures regarding stock ownership for the Paiutes. Thus, the Court finds that the Paiutes owned 657 sheep units, including 323 sheep and goats, 16 cattle, and 54 horses and burros. Again, although the claims of the Paiute Tribe to the 1934 Reservation are based on Paiute "occupation, possession and use" in 1934, not on the number of animals owned, the amount of livestock is relevant to the feasibility of the proposed grazing areas.
Grazing areas: As discussed earlier, the northern group wintered near the Arizona-Utah border. The Paiute Tribe claims that Paiutes "at times" wintered in Arizona, and more specifically, that the Nelson and Owl ambilineage spent the winter of 1933-34 south of the Utah-Arizona border (at Site N-3), and the Paiute Dick ambilineage spent some of that winter and the 1934-35 winter one-half to one mile south of the border (at Site N-1).[110]
The Navajo Nation argues that Paiutes spent their winters only in Utah, as described by the Paiutes' experts,[111] anthropological reports,[112] and Paiute witness accounts.[113] However, the Navajo Nation did *920 not contradict Dr. Bunte's testimony that the Nelson and Owl ambilineages spent the 1933-34 winter in Arizona, nor that members of the Paiute Dick ambilineage spent the 1934-35 winter in Arizona. The Court finds that the Paiutes wintered just south of the Utah border in Arizona at Sites N-1 and N-3 in 1934.
The Paiutes claim they grazed their sheep in both Utah and Arizona during the winter of 1934.[114] The Navajo Nation claims that Paiute livestock remained in Utah in the winter.[115] The Court finds that Paiutes grazed in Arizona in a limited 2 mile radius around Sites N-1 and N-3 (Oaavaxat and Kamuoip).
In the spring, the Paiutes would return to their farms in Paiute Canyon. The Paiute Tribe claims that on the way to Paiute Canyon in March, they would spend a week at Bowl Mesa (Muukwivuxarur), then move on to the central part of the Rainbow Plateau, spending a week or two at Tse Ya Toe Spring (Tukánivaats), and arriving in Paiute Canyon in May.[116] The Navajo Nation argues that the evidence shows that Paiutes left their winter areas in May and moved directly to Paiute Canyon.[117]
The Court finds that only a short period of time was spent on Rainbow Plateau en route from the winter sites to Paiute Canyon, and that period of time is not sufficient to grant the Paiutes a joint property interest in that area. This finding does not foreclose the possibility of a limited property interest for the Paiutes in this area, such as a license or prescriptive easement.
The Paiute Tribe claims that while planting in Paiute Canyon, the Paiutes would keep their livestock in the canyon, except for the Nelson ambilineage, which would keep its livestock on the Rainbow Plateau just above the canyon.
The Paiute Tribe further claims that between planting in May and harvest in the fall, all of the ambilineages would graze their livestock on the Rainbow Plateau. More specifically, the Paiute Tribe claims the Nelson and Owl ambilineage grazed their sheep in the area of Sites N-6 and N-7 (depicted on Ex. 1415.12) until the water pockets dried up, at which time they would move to Tse Ya Toe Spring. The Paiute Tribe contends that the Paiute Dick ambilineage would move more often because they had a larger herd, at times grazing over to Rainbow Lodge or to the east of Paiute Canyon.[118]
The Navajo Nation argues that the evidence shows that the Nelson and Owl family had a small number of livestock,[119] and were most likely kept near the fields in Paiute Canyon. The Paiute experts listed *921 Sites N-6 and N-7 (claimed to have been used by the Nelson and Owl ambilineage) as in use after 1934,[120] and Angel Whiskers did not mark any sites in this area on Ex. 1400A. However, it is unlikely that the animals were kept in Paiute Canyon the entire season. Government documents confirm that at least the Owl ambilineage grazed above Paiute Canyon.[121] The Court finds that the Nelson and Owl ambilineages confined their grazing to Paiute Canyon and the western rim above the canyon, within 2 miles of the trail into Paiute Canyon northeast of Tse Ya Toe Spring,[122] including to Tse Ta Toe Spring.
The Navajo Nation also contends that there is no evidence in the record to support the claim that the Paiute Dick ambilineage grazed to Rainbow Lodge or east of Paiute Canyon. Although Angel Whiskers testified about winter camps in this area,[123] no spring or summer sites were listed by the Paiute experts until after Whiskers' testimony.[124] Also, there are no remains of a site in this area.[125]
The Court finds that the Paiute Dick ambilineage did not graze across the Rainbow Plateau to Rainbow Lodge. However, the Paiute experts listed Site N-5 as used by the Paiute Dick ambilineage in 1934, which was not contradicted by the Navajo Nation. Thus, the Court finds that they grazed within 2 miles of Site N-5 in 1934.[126]
The Paiutes further claim that all Paiutes grazed their sheep south to Shonto (Tavivaats) (to Sites N-19, N-20), and would return to Paiute Canyon for the harvest.[127] More specifically, the Paiutes argue that in the summer, they herded their sheep out of Paiute Canyon to the east, then south past Sage Valley (Kuchuoip), Tall Mountain (Avaátukaiv), Adaka Spring and Last End Wash to Shonto Spring, and then northwest past Sand Spring, north to the west of Begashibito Wash (Kuchupaats) and Cliff Spring, past Hilltop Well. They claim they would then graze their livestock back into Paiute Canyon at three separate locations: (1) northeast of Tse Ya Toe Spring on the west side of Paiute Canyon, (2) at the southern-most tip of Paiute Canyon, and (3) at a trial head onto the east side of Paiute Canyon.[128]
However, Dr. Bunte testified that the Paiutes did not go to Shonto every year. She states, "But it was not â in the mid-30's, it was not something they necessarily did every year." Further, she characterized this area south of Paiute Canyon to Shonto and to the east of Paiute Canyon as "less intensive use."[129]
The claim that the Paiutes grazed to Shonto was apparently based on Angel Whiskers' recollection that they took their sheep to Shonto to be dipped,[130] a practice which was no longer necessary in 1934 *922 because Paiutes could dip their sheep at Navajo Mountain by that time.[131] Further, government documents make no mention of Paiutes grazing south of Paiute Canyon.[132] Moreover, Bertha Austin, a Navajo witness who used the area near Sage Valley and Tall Mountain, did not report any Paiutes in that area in the mid-1930's.[133]
The Paiute experts designated Sites N-19 and N-20 as late summer and fall pinon gathering and grazing camps.[134] However, Angel Whiskers did not include this area in his pinon gathering areas,[135] and Dr. Bunte admitted that she did not know any specific locations where Paiutes gathered pinons in 1934.[136]
The Court finds that the Paiutes did not routinely graze south of Paiute Canyon.
The Paiutes also claim they grazed their sheep on Paiute Mesa (Akaavich) in the summer of 1934.[137] Dr. Bunte's identified two sites in this area: Site N-21 was occupied in the late 1920's or possibly early 30's and Site N-22 was a fall grazing and pinon gathering camp used in 1934;[138] presumably the grazing took place incidentally to pinon gathering as Dr. Bunte classified this area as "less intensively grazed". Dr. Franklin testified that there were no residence sites on Paiute Mesa in 1934.[139] Further, a Navajo testified that no Paiutes grazed on Paiute Mesa.[140]
The Paiutes claim other areas based on grazing during the pinon picking season, such as Tse Ya Toe Spring, and in an area east, south and west of the southern tip of Paiute Canyon.[141] However, Dr. Bunte testified that she did not know the specific locations of pinon gathering in 1934 because the locations of harvesting change every year.[142] The Paiute Tribe cannot establish that grazing incidental to pinon gathering took place in a particular area in 1934, and no property interests arises thereby. The Court finds that the Paiutes did not graze on Paiute Mesa, or "east, south and west of the southern tip of Paiute Canyon".
Finally, the Paiutes also claim that the northern group grazed their horses and donkeys in several areas, including in Paiute Canyon; on Paiute Mesa in an area bounded by Oat Spring (Kwilaavoaxat), Sage Valley and west to the eastern cliffs of the southern tip of the Paiute Canyon and north again to Oat Spring; in an area west of the southern tip of Paiute Canyon; and in an area near Jack Rabbit Canyon.[143]
The evidence shows that the animals were most often kept near houses and fields where they were used for hauling wood, plowing fields and travel, and were hobbled near the resident sites.[144] As there were only 40 horses and donkeys, *923 grazing in other areas was not of an intensity sufficient to create a property interest.
The Paiute Tribe claims that much of their grazing area was "exclusive" Paiute use, including the entire Rainbow Plateau, Paiute Canyon, that part of Paiute Mesa overlooking the Paiute fields in Paiute Canyon (as depicted in Ex. 1418), which was used every year by every ambilineage.[145]
To the contrary, there is evidence that Navajos used this area as well. Navajo herding generally occurred on the northern part of Rainbow Plateau near Navajo Mountain in the winter, and shifted to the central and southern part of Rainbow Plateau, and along the western rim of Paiute Canyon in the summer.[146]
Dr. Russell testified that at least 16 Navajo camps resided and grazed on Rainbow Plateau, Paiute Canyon, and Paiute Mesa in 1934.[147] Both Navajos and Paiutes testified at trial that Navajos grazed throughout *924 the Rainbow Plateau and Paiute Canyon.[148]
The Paiute Tribe contends that Dr. Russell overestimated the grazing areas of the Navajo camps on the Rainbow Plateau. In Malcolm Carr Collier's report, she noted that Navajos usually stay close to their hogans, or follow direct routes to water so the herds do not mix. Dr. Russell testified that the normal herding range is 2-3 miles from the residence site, and that when a herd moved from one range to another, they would graze in a path only several hundred meters wide.[149] Dr. Russell's grazing areas overlapped, and in some cases, extended beyond 3 miles from a site. However, even if the Navajo grazing areas are restricted to a 2 mile radius around each site, Navajos grazed in the same areas in which Paiutes grazed their livestock.
Further, the Paiute Tribe argues that the Navajo estimate of 5,796 sheep units on Rainbow Plateau and Paiute Canyon is too high. The total carrying capacity for Rainbow Plateau and Paiute Canyon (in both Arizona and Utah) is 3,776 sheep units year long,[150] while the Navajo Nation contends that Navajos grazed approximately 5,796 sheep units in this area.[151] The Paiutes argue that Malcolm Collier found no overcrowding as late as 1938.[152] However, many of these Navajos grazed elsewhere in the winter and would not have overburdened the Rainbow Plateau.
The Paiute Tribe claims that Dr. Russell's work confirmed the existence of an exclusive use area for the Paiutes. In his 1989 deposition, Dr. Russell outlined areas utilized by Navajo camps for grazing, which left an area of thousands of acres on the Rainbow Plateau unused by Navajos. After deposition, Dr. Russell reinterviewed some informants, and filled in the area previously left open.[153] The Paiutes request that the Court give little weight to the testimony, arguing that it was untimely and that Dr. Russell asked leading questions.[154] However, government reports,[155]*925 anthropological studies,[156] and witnesses corroborated Dr. Russell's findings.[157] Further, the Paiute Tribe failed to ask the Court to restrict or preclude Dr. Russell's testimony, and the Paiutes were able to effectively cross-examine Dr. Russell.
The Paiutes did not contest the existence of Dr. Russell's camps (except for Camp NM-14, which the Court finds was Paiute). Thus, this Court finds that Navajos grazed in a 2 mile radius around each site identified by Dr. Russell.
Finally, the Paiutes claim that any Navajos who grazed livestock within the claimed "exclusive area" did so with the permission of the Paiutes.[158] There is no credible evidence that Navajos grazed in this area only with the permission of the Paiutes. There was no evidence as to the date of the agreement, the extent of land it encompassed, the parties bound, or any other elements of a contract.[159]
III. Other traditional uses
A. Basketry
In 1934, the Paiutes in both the northern and southern groups made numerous types of baskets for home use, barter, and cash trade. The Paiute Tribe claims that basket production was equal in importance to livestock herding and farming in the Paiute economy.[160] The Paiutes marketed baskets at local trading posts[161] and traded them with Hopis and Navajos.[162]
The Paiute Tribe claims that Paiutes gathered sumac for making baskets in the following areas: (1) the edge of Echo Cliffs, from a point south of the Gap and north of Upper Willow Springs, around the southern edge of the Kaibito Plateau to Tuba City, Moenkopi and Pasture Canyon area, (2) an area of canyons west of Highway 89 and to the north of Shadow Mountain, (3) the western edge of Preston Mesa, (4) an area southwest of Highway 89 in the vicinity of the Gap, (5) the rim and the *926 canyons along the edge of the Navajo Canyon, from Chaiyahi to Far End Canyon, including that area southwest of Tse Ya Toe, and (6) the Paiute Canyon system, including Jackrabbit Canyon.[163] Sumac must be managed by periodic burning and pruning in order to render it productive for weaving.[164]
The Paiute Tribe contends that Paiutes gathered materials other than sumac in other areas, as well: Yucca was gathered north of Bodaway Mesa in the Cedar Ridge area, to the area west of Cedar Ridge Trading Post, on "Atatsiv", and in Paiute Canyon. Dr. Franklin further opined that pinon pine pitch for basket making was found in areas where they gathered pine nuts, including Cedar Ridge, on Cedar Tree Hills, and across the Kaibito Plateau to the Shonto Plateau, and parts of Rainbow Plateau and Paiute Mesa, that red mineral rock pigment was gathered south of the Cedar Ridge Trading Post and on the eastern side of Hamblin Ridge in the vicinity of Black Peak, that willow was gathered in the sumac gathering areas (1) and (6) described above, and that rabbit brush was gathered around the resident sites.[165]
The Paiute Tribe also argues that Hopi and Navajo farmers in Pasture Canyon, Moenkopi, Moenave, Little Fields, and Mesa Springs, "recognized and honored" the Paiutes' rights to gather sumac located near their fields.[166] However, the Paiute Tribe did not present any other evidence (beyond Dr. Franklin's testimony) of this "recognition" by Navajo farmers.
The evidence introduced by the Paiute Tribe does not reflect how often materials for basket making were gathered, and instead describes only general vicinities where plants were gathered or might have grown in the 1930's.[167] Further, Dr. Franklin's testimony indicates that Paiutes did not utilize this wide area every year. Moreover, there is inconsistency in the evidence introduced regarding the gathering areas.[168] Further, Dr. Franklin testified that Paiutes tended to gather basket materials from the area where they were living.[169]
The evidence further shows that gathering basketry materials was not an activity which occupied a large amount of time for the Paiutes.[170] Dr. Franklin could not testify as to how many Paiutes gathered plants, and he did not attempt to quantify the amount of basketry material gathered.[171] Only a small number of Paiutes made baskets in the 1930's,[172] indicating that a small amount of basketry material was needed.
The Court finds that to the extent Paiutes gathered basket materials in the areas described above, the activity, while important, was not sufficiently intensive to give rise to a property interest under the 1934 Act.
B. Hunting and Gathering
One of the food plants gathered by the Paiutes circa 1934 was pine nuts (pinons). Pinons were not gathered in the same place annually because they ripened in different *927 areas every year.[173]
However, Dr. Bunte admitted that her map of pinon gathering areas does not depict actual locations where pinon gathering occurred; instead, the areas represent places in which gathering may have occurred because the area shown is at an altitude where pinions might have grown.[174] Further, there were inconsistencies in the Paiutes' evidence.[175]
More importantly, there was no evidence regarding how frequently any of these areas were used, nor how much time was spent gathering pinons. Dr. Bunte agreed that gathering is not an intensive activity.[176] The Court finds that the gathering of pinon nuts was not sufficiently intensive to give rise to a property interest under the 1934 Act.
Paiutes gathered other wild plants for food, including berries, fruits, seeds, agave, yucca, cactus, and onion.[177] However, Dr. Bunte's map does not reflect any actual locations in which plants were found, and the evidence shows that most plant gathering generally occurred near the Paiute fields and areas adjacent to homesites (with the exception of berries and agave).[178] Moreover, the evidence does not reflect the intensity of plant gathering, and Dr. Bunte admitted that gathering is not an intensive activity.[179] The Court finds that the gathering of other edible plants was not sufficiently intensive to give rise to a property interest under the 1934 Act.
Paiutes also hunted small game, including rabbits, porcupines, squirrels, chipmunks, rats and prairie dogs.[180] Again, Dr. Bunte's map does not reflect how often Paiutes hunted animals, and the Paiute Tribe has not established that hunting was of the intensive nature necessary under the 1934 Act. The Court finds that the hunting of small animals was not sufficiently intensive to give rise to a property interest under the 1934 Act.
C. Wood Gathering
The Paiute Tribe contends that fuel and construction wood was found around the living sites in 1934, and also on the areas set forth on Ex. 1415.8.[181] However, the Paiutes have failed to demonstrate the intensity with which wood was gathered at places away from the living sites. The Court finds that wood gathering was not sufficiently intensive to give rise to a property interest under the 1934 Act.
D. Religious use
The Paiutes' sacred sites, where sacred events or rituals connected with birth, death and other life events, as well as places where sacred plants were gathered, are depicted on Ex. 1421 and Ex. 1415.11.[182] Further, there were three round dance sites, one at Willow Springs, one at Paiute *928 Canyon, and one on "Atatsiv", which had spiritual significance to the Paiutes.[183]
As explained in more detail in the Court's Findings of Fact and Conclusions of Law regarding the Hopi Tribe's claims, religious use of the 1934 Reservation does not give rise to a property interest in the Reservation. 25 U.S.C. § 640d-20 guarantees the use and right of access to Hopi religious shrines if they are located on the Navajo Reservation.[184] This section applies to Paiute access to their religious shrines, as well, if located on the Navajo Reservation. Further, religious interests in land held in trust for another Indian Tribe do not create a property interest in that land. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988); Manybeads v. United States, 730 F.Supp. 1515, 1517 (D.Ariz.1989) (appeal pending) ("The nature of the religious rights claimed cannot create a de facto beneficial ownership of public (or private) property, in order to practice ones religion"); Attakai v. United States, 746 F.Supp. 1395 (D.Ariz. 1990).
Further, the Paiute Tribe has not demonstrated that these religious activities were of the intensive nature necessary to create a property interest under the Act.
CONCLUSIONS OF LAW
This Court has jurisdiction pursuant to the Navajo-Hopi Settlement Act, 25 U.S.C. § 640d-7, 88 Stat. 1715 (1974), as amended, 94 Stat. 929 (1980).
The Act of June 14, 1934, 48 Stat. 960 (1934) (the "1934 Act"), established the external boundaries of the Navajo Reservation, and conveyed an equitable interest in certain of these lands to the Navajo Nation and "such other Indians as may already be located thereon", including the Paiute Indians.
Certain lands within the boundaries of the 1934 Reservation are excluded from litigation and thus not subject to the claims of the Paiute Tribe including the 1882 Reservation, certain lands previously reserved by Congress for water power purposes and power sites, lands reserved by the 1868 Treaty with the Navajo Nation, 15 Stat. 667, lands withdrawn by the Act of May 23, 1930, 46 Stat. 378, lands withdrawn by the Act of February 21, 1931, 46 Stat. 1204, allotted lands for which patents issued, lands purchased on behalf of the Navajo Nation, privately owned lands relinquished pursuant to Section 2 of the 1934 Act, and lands conveyed to the State of Arizona for the "support of the common schools" which were surveyed prior to withdrawal of the land pursuant to Executive Order. The location of these "excluded" lands will be established in Phase II of this litigation.
All other lands, including allotted lands for which patents did not issue, and "school lands" which were unsurveyed or surveyed after withdrawal of the land pursuant to Executive Order, are subject to Paiute claims.
The Court finds that in order to meet the statutory criterion of "already located thereon", the occupation, possession, and use by Paiute Indians must be substantial and sufficiently intensive in order to create a property interest in the 1934 Reservation. Use by a few isolated individuals, especially when away from traditional use areas of that individual's Tribe, and irregular or sporadic uses are not sufficient. Substantial seasonal use is sufficient for this Court to find occupation or use of the land.
The presence of sacred sites or gathering plants for religious purposes does not give rise to a property right under the 1934 Act. The Paiute Tribe's right of access to such sacred sites or shrines is protected by 25 U.S.C. § 640d-20.
The burden of proof is on the Paiute Tribe to demonstrate where Paiute Indians were "located" in 1934, although less stringent than in ordinary civil proceedings, due *929 to the passage of more than fifty years between the events to be proved and trial and the lack of a written Paiute language. See United States v. State of Washington, 730 F.2d 1314, 1317 (9th Cir.1984) (standard of proof relaxed when little documentation is available for proving the existence of Indian fishing grounds).
After the areas on which Paiute Indians are located are identified, "Navajo interests are identifiable as the residue." Sekaquaptewa II, 619 F.2d at 808 (after Hopi interests are identified, Navajo interests are residue). Thus, this Court need only address Navajo use of lands on which the Paiute Tribe has proved Paiutes were "located" in 1934, in order to decide whether Paiutes were "exclusively" or "jointly" located on that land.
This Court previously held that the Hopi Tribe, for the use and benefit of its individual members, and subject to the paramount title of the United States, is entitled to an exclusive interest in both the surface and subsurface estate in those lands which were exclusively used, occupied, or possessed by Hopis in 1934. Further, this Court held that upon completion of a survey of the exclusive Hopi lands by a competent surveyor appointed by the Court or by stipulation of the parties, and upon the Court's approval of that survey, title to the lands so identified would be quieted in the Hopi Tribe, subject to the trust title of the United States, and all such lands shall be a part of the Hopi Reservation.
This Court previously held that it did not have jurisdiction to partition land to the Paiute Tribe. A holding that the Paiute Tribe is entitled to the surface and subsurface estate in land which were exclusively used, occupied, or possessed by Paiutes in 1934 and to quiet title in the Paiute Tribe would be tantamount to a partition of that land to the Paiute Tribe. Thus, while the Court will make findings as to the lands held exclusively by Paiutes in 1934, the Paiute Tribe will not be entitled to an exclusive interest in the surface and subsurface estate.
The Paiute Indians were exclusively located in Upper Willow Springs, as detailed in the Findings, above. There was not a Paiute exclusive use area in the northern use area.
This Court previously held that lands jointly used by Navajos and Hopis in 1934 are subject to partition in the second phase of trial proceedings. However, this Court does not have jurisdiction to partition land to the Paiute Tribe, and the Paiute Tribe will not participate in the partition proceedings. The Court will nevertheless make findings regarding where Navajo and Paiute Indians were jointly located.
The Court finds that in the northern area, Paiutes and Navajos jointly occupied upper Paiute Canyon, an area west of Paiute Canyon within a 2-mile radius of the trial leading out of Paiute Canyon, including Tse Ya Toe Spring, and an area within a 2-mile radius of the areas identified as Paiute Sites N-1 and N-3 (Oaavaxat and Kamuoip), and Site N-5. This use area is restricted to the boundaries of the Paiute "intensive" grazing area depicted on Ex. 1415.13A. The specific areas are detailed in the Findings of Fact, and are generally shown on a map attached depicting the area.[185]
The Court further finds that in the southern area, Paiutes and Navajos jointly occupied the following areas: a 2-mile radius around the areas identified as Paiute Sites S-1, S-4, S-8, S-10 and S-38 (around Hamblin Ridge to Aayuxwich), within 2 miles of Willow Springs, and at Paiute Sites S-19 and S-20 at White Point (restricted to the acreage farmed). This use area is restricted to the boundaries of the Paiute "intensive" grazing area depicted on Ex. 1415.13A. The specific areas are detailed in the Findings of Fact, and are generally shown on an attached map.
These Findings and Conclusions conclude this Court's jurisdiction over the Paiute Tribe's interest in the 1934 Reservation, absent further direction from Congress.
*930
*931
*932
NOTES
[*] I would like to acknowledge the substantial assistance of Kristen Rosati, my second year law clerk, in research and preparation of this order.
[1] The Navajo Tribal Code, 1 N.T.C. § 301, requires officials of the Navajo Tribe to use the term "Navajo Nation" rather than "Navajo Tribe". Throughout this opinion, the Court will use the term employed by the Navajos.
[2] § 640d-7. Determination of tribal rights and interest in land.
(a) Authorization to commence and defend actions in District Court
Either tribe, acting through the chairman of its tribal council for and on behalf of the tribe, is each hereby authorized to commence or defend in the District Court an action against the other tribe and any other tribe of Indians claiming any interest in or to the area described in the Act of June 14, 1934, except the reservation established by the Executive Order of December 16, 1882, for the purposes of determining the rights and interests of the tribes in and to such lands and quieting title thereto in the tribes.
(b) Allocation of land to respective reservations upon determination of interests
Lands, if any, in which the Navajo Tribe or Navajo individuals are determined by the District Court to have the exclusive interest shall continue to be a part of the Navajo Reservation. Lands, if any, in which the Hopi Tribe, including any Hopi village or clan thereof, or Hopi individuals are determined by the District Court to have the exclusive interest shall thereafter be a reservation for the Hopi Tribe. Any lands in which the Navajo and Hopi Tribes or Navajo or Hopi individuals are determined to have a joint or undivided interest shall be partitioned by the District Court on the basis of fairness and equity and the area so partitioned shall be retained in the Navajo Reservation or added to the Hopi Reservation, respectively.
(c) Actions for accounting, fair value of grazing, and claims for damages to land; determination of recovery; defenses [Omitted].
(d) Denial of Congressional interest in merits of conflicting claims; liability of United States [Omitted].
(e) Payment of legal fees, court costs and other expenses [Omitted].
[3] Section 1 of the 1934 Act provides:
To define the exterior boundaries of the Navajo Indian Reservation in Arizona, and for other purposes ... the exterior boundaries of the Navajo Indian Reservation, in Arizona, be, and they are hereby, defined as follows: [legal description of land omitted]. All vacant, unreserved, and unappropriated public lands, ... within the boundaries defined by this Act, are hereby permanently withdrawn from all forms of entry or disposal for the benefit of the Navajos and such other Indians as may already be located thereon ...
[4] § 640d-16(a) provides:
[N]othing in this Act shall affect the title, possession, and enjoyment of lands heretofore allotted to Hopi and Navajo individuals for which patents have been issued.
[5] 25 U.S.C. § 640d-7 granted this Court jurisdiction to partition land to the Hopi and Navajo Tribes. If Hopis were exclusively located on an area of land, the statute provides that the land becomes a part of the Hopi Reservation. Also, if only Navajos were located in an area, that area remains part of the Navajo Reservation. If both Navajos and Hopis made use of an area, the area is subject to partition between the Tribes based on "fairness and equity".
[6] Ex. 1508 at 3 (Bunte and Franklin report).
[7] Ex. 1403 (Summary of Paiute membership in 1934); 34 TT 4748-50 (Dr. Franklin) (all individuals listed on Ex. 1403 had San Juan Southern Paiute ancestry, were raised as Paiutes, identified themselves as Paiutes, and were members of the Paiute Tribe in 1934). In the southern area in 1934, the Paiutes lived in extended families which generally cooperated in herding livestock and agricultural activities, and generally lived in the same site. 32 TT 4432-33 (Dr. Franklin). In contrast, the northern group belonged to "ambilineages", or bilateral kinship groups in which the members are affiliated with the group either through their mother or their father, and which hold rights to land in common. 32 TT 4433, 4445-46, 34 TT 4755-56 (Dr. Franklin). This move in the north to ambilineages was in response to increased scarcity of farm land and pressure exerted by Navajo population growth so as to exert more control on access to land. The process of consolidation to ambilineages in the south was still incomplete in the 1930's. Ex. 1508 at 23-24 (Bunte and Franklin report).
The Court will note at the outset that the spelling of Paiute and Navajo names may not be correct. Where possible, the Court has indicated the Paiute and/or Navajo spelling in parentheses after the English names. While the Court has made an effort to be consistent in the spelling, government documents, expert reports, and other exhibits sometimes contain varied spellings and these inconsistencies may have been carried over to this opinion.
[8] The Navajo Nation first contends that Priscilla Dutchie (Kanav) was a Ute, based on Dr. Franklin's testimony that some of Priscilla Dutchie's family moved from the southern area to Ute Mountain and that her brother Washington was enrolled in the Ute Tribe, and Dr. Franklin's deposition testimony that the Dutchie family was a Southern Ute family. However, Dr. Franklin identified Priscilla as "Motzille Hammond" on the 1934 Paiute census, who was married to Joe Hammond (Tangwats). 34 TT 4750-51 (Dr. Franklin). Further, there was no testimony that Priscilla was a Ute, nor were Ute tribal records produced. The Court finds that Priscilla Dutchie was a Paiute.
The Navajos also contend that there is no evidence that "Tura" and "Tura's son" (Elizabeth and Charles Allen) were alive in 1934. 34 TT 4690, 4702 (Dr. Franklin) (Tura married a Hopi in the 1930's, but doesn't know when; believed Tura's son was alive in 1934). Because no evidence was introduced to contradict this testimony, the Court finds that Tura and her son were members of the southern group in 1934.
The Navajo Nation also argues that there is no evidence that the "infant girl" in the Joe Norman family was alive in 1934. Dr. Franklin testified that in his opinion, the girl died after 1934, although he was not definite on that point. 34 TT 4702 (Dr. Franklin). This testimony was not contradicted, nor was alternative proof offered on this point, and the Court finds that the Norman infant was alive in 1934.
The Navajo Nation also argues that the family of Joedie Paiute (Akamanaxwats) was not living on the 1934 Reservation in 1934. Blue Lee (Aipara), Joedie Paiute's son, testified that his family moved to Lee's Ferry around 1930 and remained there and around Page, AZ, for four or five year. 35 TT 4790-93, 4815-16 (Lee). However, Lee's testimony is ambiguous about the year in which his family moved back to the Reservation, and he testified that he lived at Willow Springs the summer J.I. Casey and Dinah got married, which was around 1934. 34 TT 4703 (Dr. Franklin). Further, other Navajo and Paiute witnesses place Lee in the southern area in 1934. 40 TT 5406 (Deposition of J. Norman); 40 TT 5363-64 (Deposition of P. John). The Court finds that the family of Joedie Paiute lived on the 1934 Reservation in 1934.
The Navajo Nation also argues that David Lehi (Pakái) had died by 1934. 34 TT 4703 (Dr. Franklin) (described Lehi as possibly deceased in his report, but testified later that Percy John had seen him alive in 1934). Further, three Navajos testified that David Lehi (Paiute Hurt Hip) lived at Willow Springs in 1934. 40 TT 5369 (Deposition of P. John); 44 TT 5832 (Jefferson); 25 TT 3627 (Butler). The Court finds that David Lehi was alive in 1934.
Finally, the Navajo Nation argues that J.I. Casey is a southern Ute and lives on the Ute Reservation. 34 TT 4696 (Dr. Franklin) (Casey now lives on Southern Ute Reservation); 40 TT 5367 (Deposition of P. John) (Casey was not around Willow Springs much, but didn't know if Casey was there in 1934). However, Blue Lee testified that Casey was a Paiute, 35 TT 4791 (Lee), and the 1934 census lists him as a Paiute. Ex. 2485, p. 640/0362, entry 45, 48 (Jay L. Casey) [sic]. The Court finds that J.I. Casey was a Paiute and member of the southern group in 1934.
[9] Joe Norman (Naivwú), a Paiute, testified at deposition that he, Alfred and Marie Lehi (Kainap and Kaimi), Joedie Paiute, Alice Lee (Táts), Joe Francis (Nungumaots), Zini Casey (Ixirots), and Chee Tonny (Wichunux) had fields at Willow Springs in 1934 (the year that Grace Lehi (Náaintsitsi) was born). 40 TT 5401, 5404-08, 5410 (Deposition of J. Norman). Blue Lee (Aipara) testified that his father Joe Lee (Joedie Paiute) and mother Alice Lee, Priscilla Dutchie, Marie Lehi, Connie (or Gonah) Yazzie (Kwinu), Zini Casey, Gus (or Gonah) Sani (Kúiv), Harry Brooks (Chaxoits), Joe Norman, Alice (or Lucy) Norman (Kwichuats), Puutsixa (English name not known), Beth Francis (Ski) and Harry Francis (Yuvwánits) had fields at Willow Springs in 1934. 35 TT 4792-94 (Lee).
Dr. Franklin testified that Paiutes farmed approximately 10 acres in Upper Willow Springs in 1934. Ex. 1404 (Site S-26, Willow Springs Paiute farms and associated summer residences used continuously from 19th century to present, including 1934). Dr. Franklin cited a report by Stevan Janus, Western Navajo Agency Superintendent, to the Commissioner of Indian Affairs, dated January 23, 1909, which stated that Paiutes held about 10 acres of irrigable land (Ex. 1664), and a 1950's BIA Bureau of Land Operations report which documented eight acres of Paiute farms at Willow Springs, but which did not include the government springs farm which was cultivated in 1934. 32 TT 4460-62, 4469-72 (Dr. Franklin). Further, Dr. Franklin discounted the LMU3 Agronomy Report data (which recorded four acres farmed by Paiutes), because the aerial photographs on which the Report was based would not have shown all hand-turned Paiute fields. See also, Ex. 1508.2, Appendices A (Map 3-1) and B (Map 3-2) (Summary of Opinions and Conclusions, Dr. Franklin).
The Navajo Nation argues that Drs. Franklin and Bunte's opinions regarding Paiute land use are entitled to little weight. First, they based their opinions on interviews with only fourteen people, five of whom were 12 years old or younger in 1934. Further, the Navajo Nation argues that the experts testified to matters not within their expertise, did not consider relevant government documents, and were swayed by their sympathy for the San Juan Paiutes.
The Court agrees that the Paiute experts occasionally testified to matters beyond their expertise; e.g. Dr. Bunte did not have the expertise to evaluate the feasibility of grazing areas reported by her informants. Further, the Court is concerned that their opinions were based on only fourteen informants, many of whom were children in 1934. While the Court will give Drs. Bunte and Franklin's testimony full consideration where due, the Court will give less weight to their opinions on matters outside their expertise, when not corroborated by documentary or testimonial evidence.
[10] 40 TT 5354-57, 5371, 5378 (Deposition of P. John) (Paiutes, including Aliínilgish and Goóna Sani had fields at Willow Springs (Abaátoh in Navajo)); Ex. 3601, pp. 388, 397, 524, 531-32 (Deposition of P. John). There was also substantial testimony that Paiutes had residences at Willow Springs. See, 40 TT 5356-58, 5363-68 (Deposition of P. John); 35 TT 4842 (Deposition of R. Lomayesva); 44 TT 5832-33 (Jefferson); 43 TT 5783-84 (Preston).
[11] Various studies of the United States Soil Conservation Service ("SCS") will be utilized in determining where Paiutes and Navajos were farming (and grazing) in 1934. From about 1934 to 1940, the SCS conducted a systematic study of the resources, terrain, people, and livestock of the Navajo Reservation, which will be utilized in these Findings. See Ex. 2590, Navajo District Annual Report, 1936-1937 at 57-67 (describing studies); Ex. 2653, Navajo District Annual Report 1937-1938 at 55-60 (studies and surveys completed included Agronomy, Engineering, Soils, Range Management, Woodland Management, and Wildlife Management, and socio-economic data).
The SCS recorded Paiutes farming at Willow Springs. See, Ex. 408, pp. 1, 13, 18 (1937 LMU3 Agronomy Branch Report) (12 Paiutes farmed four acres in this area in 1935; farm survey sheets for Quad 19, plots 20 and 21); Ex. 3176, pp. 3342-43 (1937 LMU3 Woodland Survey Report) (30 Paiutes in this district, farming four acres); Ex. 3180, p. 1 (Report of G.S. Quate, SCS, dated October 14, 1934) (small patches of agricultural land called Paiute [Willow] Springs).
[12] The Navajo Nation contends that by 1934, the Paiute fields at Willow Springs were in serious disrepair due to reservoirs and irrigation ditches having been washed out and erosion of fields. See, 33 TT 4602 (Dr. Franklin) (agrees that irrigation system not completely restored after storm in the late 1920's). Further, the above-cited government surveys indicated that only four acres were farmed in the mid-1930's. See, Ex. 408; Ex. 3176. However, the Navajo expert, Dr. Russell, admitted that the omission of a field from the 1937 Agronomy Report does not necessarily mean a field was not cultivated in 1934. 43 TT 5742-44 (Dr. Russell).
[13] The Navajo Nation points out that a Navajo woman, Bah Sani, lived with the Paiutes at Upper Willow Springs, 35 TT 4823 (Lee); 33 TT 4603-04 (Dr. Franklin); 39 TT 5290 (Dr. Bunte), but does not assert a claim to the area on that basis.
[14] The LMU3 Agronomy Report shows 40 acres of land farmed by Navajos. Ex. 3169 at TC16916; 42 TT 5658-68 (Dr. Russell) (40 acres located between Moenave Demonstration area fence and Upper Willow Springs); Ex. 3626 (Russell map of fields in Willow Springs area); Ex. 3625 (Russell list of Navajos farming at Willow Springs/Cedar Ridge/White Point area).
[15] Ex. 3167 at TC16254 (LMU3 Oral Report) (reports a number of permanent waterholes to the east of Echo Cliff) and TC16257 (concentration of livestock around Red Lake, Tuba City and Willow Springs); 41 TT 5602-04 (Dr. Russell) (discussing LMU3 Oral Report and water sources used by Navajo livestock).
[16] Dr. Franklin testified that the Ixirots/Francis extended household and possibly the Akamanaxwats/Táts extended household were dry farming at Cornfield Valley in Cedar Ridge in 1934, six-tenths of a mile north of Cedar Ridge Trading Post. See, 32 TT 4454, 4475-80 (Dr. Franklin); Ex. 1415.3 (Dr. Franklin map); Ex. 1404 (Franklin Southern Sites List) (Site S-33, spring and summer residence site belonging to Táats/Akamanaxwats household and used in 1930's, probably including 1934, in conjunction with grazing and possibly farming in the Cedar Ridge area); Ex. 1422 (Supplemental Southern Sites List) (Site 3-36). Dr. Franklin's opinion is based on historical documents. See Ex. 1664 (report from Stevan Janus, Western Navajo Agency Superintendent, to the Commissioner of Indian Affairs, dated January 23, 1909) (Paiutes farmed at Cedar Ridge); Ex. 1588, at pp. 28, 114 ("Dine Bikeyah", by Richard Van Valkenburgh, Navajo Agency, dated 1941) (Paiutes camped, had a few sheep, and did a little farming in the alluvial fans along Cedar Ridge); Ex. 1983 (Letter from Richard Van Valkenburgh, Navajo Agency, to William Palmer, dated October 5, 1953) (Valkenburgh interviewed Joe Francis twenty years ago around Cedar Ridge). None of these documents support the Paiutes' contention that they farmed at Cedar Ridge in 1934.
[17] The LMU3 Agronomy Report describes several fields at Cedar Ridge, none of which is listed as a "Paiute" field. Ex. 3169 at TC16917, 984-88 (Quad 85); 42 TT 5670-71 (Dr. Russell) (9 Navajo Camps on Cedar Ridge; SCS documents do not mention Paiutes at Cedar Ridge). Kenneth Nez testified that there were no Paiute fields at Cedar Ridge. 43 TT 5811 (Nez). Blue Lee testified that his father Joedie Paiute did not have a farm at Cedar Ridge. 35 TT 4792-94 (Lee); 33 TT 4608-09 (Dr. Franklin) (admitting that Blue Lee stated in deposition that Joedie Paiute did not have a farm at Cedar Ridge).
[18] Ex. 3169 at TC16984-88 (LMU3 Agronomy Report); 42 TT 5656 (Dr. Russell); EX. 3625 (Russell list of Navajos farming in this area); Ex. 3175A (LMU3 Livestock Movement Survey) (includes names of four Navajos who farmed at Cedar Ridge); 43 TT 5805-07 (Nez) (Navajos farmed fields north of Cedar Ridge trading post).
[19] 32 TT 4481-82 (Dr. Franklin) (Alfred and Marie Lehi had field about one mile south of White Point); Connie and Leta Yazzie had field west of the southern tip of White Point; Ex. 1415.3 (Franklin map); Ex. 1405 (Franklin Southern Sites List) (Site S-19, summer residence and field area belonging to Yazzie household and used in 1934, and Site S-20, summer residence and field area belonging to Alfred and Marie Lehi and used in 1934); 39 TT 5299 (Dr. Bunte) (Paiutes farmed at White Point from at least December, 1934, when Marie Lehi's daughter Grace was born, until 1940 when Marie was pregnant with her youngest daughter); 35 TT 4796-97 (Lee) (Alfred Lehi and Connie Yazzie had fields at White Point in 1934). This was corroborated by Navajo testimony. 43 TT 5781-83 (Blanche Preston) (a Paiute named Gonah [Connie] Yazzie farmed with them for a few years at White Point at the time of the goat reduction (1934), though he lived at Willow Springs).
[20] 43 TT 5781-83 (Blanche Preston). Further, the LMU3 Agronomy Report does not record any Paiute fields at White Point. See, Ex. 3169 at TC16978-79 (Quad 72, fields 12, 13, and 14) and TC16981 (Quad 79, fields 8 and 9); 42 TT 5670-72 (Dr. Russell). However, Dr. Russell admitted that the LMU3 Agronomy Report did not necessarily list all farms in LMU3. 43 TT 5742-43 (Dr. Russell).
[21] Ex. 3169 at TC16978-79 (Quad 72, fields 12, 13, 14) and at TC16981 (Quad 79, fields 8 and 9) (LMU3 Agronomy Report) (18 total acres, owners not listed); 42 TT 5670-72 (Dr. Russell) (4 Navajo Camps farmed this area); Ex. 3625 (Russell list of Navajos farming this area); 25 TT 3595-3604 (Helen Tsinnie) (her husband's mother, Mary T. Bancroft, and other Navajos farmed at White Point).
[22] The Court was not provided with the acreage of these Paiute farms or the correlation with those fields listed in the LMU3 Agronomy Report. Ex. 3169.
[23] Ex. 1507A (Drs. Bunte and Franklin map showing winter residences in Utah); 38 TT 5124-25, 5130-31, 39 TT 5274-80 (Dr. Bunte); 33 TT 4565 (Dr. Franklin).
[24] Ex. 1403 (Summary of Paiute membership in 1934); 34 TT 4748-50 (Dr. Franklin) (all individuals listed on Ex. 1403 had San Juan Southern Paiute ancestry, were raised as Paiutes, identified as Paiutes, and were members of the Tribe in 1934). As explained earlier, the northern group was organized in ambilineages, or bilateral kinship groups in which the members are affiliated with the group either through their mother or their father, and which hold rights to land in common. Access to fields is determined by membership in a household in the ambilineage. 32 TT 4433, 4445-46, 34 TT 4755-56 (Dr. Franklin).
[25] The Navajo Nation claims that Joe Bush (Kumaxa) was not a member of the northern group and was either living off the Navajo Reservation or had died by 1934. 34 TT 4692-95 (Dr. Franklin) (testified at deposition that he did not have clear information regarding whether Joe Bush was a member of the San Juan Southern Paiutes, and that he may not have been living in 1934; testified at trial, however, that he had reanalyzed information from an interview and concluded that Joe Bush died after Paiute Dick (Kavíi) after 1934 and was a member of the northern group).
The Navajo Nation also argues that a number of the people listed on Ex. 1403 were Utes, including Curtis Lehi, 34 TT 4688-89, 4701 (Dr. Franklin) (Curtis Lehi's brother was a Ute, he moved to the Ute Reservation after his wife died in 1935, and his mother and sister were members of the Blanding Utah band of Paiutes), Joseph Lehi, 34 TT 4696-97 (Dr. Franklin) (Joseph Lehi lived with a northern Ute community), Willard Whiskers, 34 TT 4696 (Dr. Franklin) (Whiskers lived with a Ute community), and Lola Nelson (Wunuts), 34 TT 4697 (Dr. Franklin) (presently lives with the White Mesa group of the Ute Tribe). However, there was no evidence introduced that any of these people were members of the Ute Tribe, three were listed on the 1934 census as Paiutes, see Ex. 2485, p. 645/0389, 0386, (Indian Census Roll) ("Curtin" Lehi, "Jolph" Lehi, and Willard Whiskers members of "Piute" Tribe), and no lay witness testified that they were members of the Ute Tribe. See also, 34 TT 4753-53 (Dr. Franklin) (Indian would not lose tribal identity simply by moving to another Reservation).
[26] 44 TT 5902 (Graymountain) (Toby Owl planted a field once between 1930 and 1940 toward Tse Ya Toe Spring, but never came back); 32 TT 4483 (Dr. Franklin); 35 TT 4872-73, 36 TT 4892 (Whiskers) (Toby Owl had field on top of the canyon on the "sunset" side).
The Paiutes proposed findings rely heavily on the testimony of Angel Whiskers, and on two maps created during trial by Whiskers. See, Ex. 1425 (map of Paiute Canyon with hand drawn additions by Whiskers), and Ex. 1400A (map of Navajo Mountain area with hand drawn additions by Whiskers). Further, Drs. Bunte and Franklin relied on Whiskers as an informant. The Navajo Nation argues that Angel Whiskers was not a credible witness. Angel Whiskers testified that he personally covered a very large portion of the Navajo Reservation in Arizona (having built twenty or more corrals), tended fields in Utah, gathered pinons in Utah in 1934, and also testified in deposition that he lived and worked in Blanding, Utah in 1934. 37 TT 5011-19, 5053-54, 5064-66 (Whiskers). Further, the Navajo Nation argues that Angel Whiskers displayed a limited memory, and that his testimony often contradicted other witnesses, including the Paiute expert witnesses. The Court agrees that Angel Whiskers' testimony was often not credible, and will be given little weight unless corroborated by other evidence.
The Court will note that "Angel" has also been spelled "Angle" in the parties' proposed findings. The Court will use the spelling "Angel", as listed in the Paiute list of members of the Paiute Tribe, Ex. 1403.
[27] Dr. Franklin placed it a mile-and-a-half west of the rim of Paiute Canyon, see Ex. 1415.3, while Angel Whiskers placed it at the top of the horse trial leading out of Paiute Canyon. 36 TT 4892 (Whiskers). Further, the field was not listed on Dr. Franklin's northern site lists. Ex. 1405 (Franklin Northern Site List); Ex. 1411 (Franklin Northern Site Map); Ex. 1423 (Supplemental List of Northern Sites); Ex. 1415.12 (Supplemental Sites Map); 33 TT 4591 (Dr. Franklin).
[28] The LMU2 Agronomy Report does not make reference to Paiutes farming on Rainbow Plateau, and the SCS did not record any fields in this area. Also, in 1938 Malcolm Carr Collier, an anthropologist, observed that there were no Paiutes living on the Rainbow Plateau. See, Ex. 2699 at 2 (Malcolm Carr Collier study). However, her study was conducted during the fall and winter months, when Paiutes would have been wintering in the Utah area.
[29] Dr. Franklin mapped his findings on Ex. 1413 or "Map 3-3", and Ex. 1508.2, and numbered the fields from 1-8. This numbering system differs from that used by the SCS in Ex. 3133A in designating field areas in Paiute Canyon. Although this Court will employ the SCS numbering system, for reference, SCS field 1 = one field in the middle of Franklin field area 1; SCS field 1.3 = Franklin field area 2; SCS field 1.4 = Franklin field area 3; SCS field 1.5 = uncultivated area in Franklin field area 3; SCS field 2 and part of 2.1 = Franklin field area 4; southern portion of SCS field 2.1 = Franklin field area 5 and 6; SCS field 3 = Franklin field area 7; Franklin field area 8 was not listed on the SCS map. See, 33 TT 4521-23 (Dr. Franklin) (comparison of maps).
See also, 32 TT 4486, 33 TT 4493-500, 4506-12 (Dr. Franklin) (discussion of farming in each field area). The specifics of Dr. Franklin's testimony will be addressed as to each field area. Dr. Franklin also identified a number of residence sites in Paiute Canyon. Ex. 1405 (Franklin Northern Sites List) (Site N-8, residence of Mercy Whiskers household and corn storage pits used by Paiute Dick ambilineage in 1934; Site N-9, residences of Unap, Paiute Dick, and Curtis and Rose Lehi, and other features associated with agricultural use, used in 1934; Site N-10, residences and other features associated with field area of Nuaxur and Lester Willetson, used in 1934; Site N-11, residences and other features associated with field area of the Owl ambilineage, used in 1934; Site N-12, residence and other features associated with field area of the Nelson ambilineage, used in 1934).
[30] Angel Whiskers testified that a number of Paiutes farmed in Paiute Canyon in 1934. The location of the fields to which he testified were marked on Ex. 1425 during trial, which was not admitted into evidence, but is attached as Attachment A to the Paiute Proposed Findings (hereinafter, "Att. A"); the numbering does not correspond to the SCS map nor Dr. Franklin's map. See, 35 TT 4864-73, 36 TT 4885-92, 4900, 4911 (Whiskers) (discussion of farming in Paiute Canyon). Angel Whisker's testimony will be evaluated with reference to each field area.
[31] Ex. 1531, pp. 91-94 (Report by Hugh Calkins, SCS, "The Navajo Project", dated August 1, 1935) (Upper Paiute Canyon designated as an agricultural demonstration project in May, 1935; describes Paiute Canyon as rich farming lands for both the Paiutes and the Navajos); Ex. 1582, at AO6707-08 (1937 LMU2 Range Management Report) (described farms in canyon belonging to Lester Willetson [Muuviráats] and Dora Nelson [Kaavwoymaxakwats or Kwichatangw]); Ex. 2441 (Donald Collier, "Ethnologic Study for the Rainbow Bridge Monument Valley Expedition of 1933") (interviewed Ruben Owl [Muuputs or Nasja] in Paiute Canyon; Paiutes lived at Upper Crossing within Paiute Canyon); Ex. 2932, pp. 30, 39 (Malcolm Carr Collier, "Local Organization of the Navajo", 1966) (field work done in late 1930's indicated Paiute fields in the canyon, below the fields of the people from Navajo Mountain; Paiutes live in Paiute Canyon in the summer).
[32] See 33 TT 4502, 4527, 30, 33 (Dr. Franklin); 35 TT 4864-73, 36 TT 4887-92, 4900, 4911 (Whiskers).
[33] Ex. 3133 at 100-01 (LMU2 Engineering Report) (Paiutes farmed 29.84 acres in 1937); 3 acres of Paiute fields added by the SCS after 1934.
[34] 33 TT 4493-96 (Dr. Franklin) (field area 1 belonged to the Paiute Dick and Siblings' ambilineage and was utilized by Kavíi and Unap (Paiute Dick's sister)). Angel Whiskers also testified that the field marked no. 26 (Dr. Franklin's field area 1) was owned by Paiute Dick. 35 TT 4900-01 (Whiskers). Further, although Angel Whiskers testified that Navajos also farmed in Paiute Canyon, he placed all Navajo fields away from the Franklin field areas 1-6. 36 TT 4900-06 (Whiskers) (marked Navajo fields as nos. 27-37 on Att. A).
[35] 43 TT 5730-32, 5736-37 (Dr. Russell) (agreed SCS field 1 was farmed by Paiute Lester Willetson). The SCS farm survey lists Paiutes and Navajos as the owners of Quad 100, field 1. See, Ex. 3130 at TC17374 (LMU2 Agronomy Report, 1937) (Field 1 owned by White Hat, Lesslie Tornesa, One Salt, Red Shirt, Yellow Salt, Nas Kai Tazzie and Son-in-law or Joe, Alfred Miles, Lester Wilbtson [sic], Bert Little, Evan Nelson, Eugene Holgate or Tachine Yazzie, and Keith Fat, from south to north in order of ownership; there is no indication of the acreage farmed by each). Dr. Franklin agreed that the LMU2 Agronomy Report listed Lester Willetson and 11 Navajos as the owners of field 1. 33 TT 4580-81 (Dr. Franklin).
[36] 36 TT 4901-05 (Whiskers) (Navajos Asdzaa Bidideetsohi, Ashiíi Lifssói, Nitlaáigii, Binaal Sani, Taachiíinii Yazhi, Hosteen Yazzi, Neeskaái and Nanoobei had farms in this area; there is no information regarding the English translations of these names).
Further, the Paiute Tribe argues that the LMU2 Agronomy Report, which lists eleven Navajos, describes farming in 1937 and therefore does not support Navajo claims of use in 1934. The Paiute Tribe contends that farming in Paiute Canyon changed between 1934 and 1937: in 1936, the SCS Demonstration project created numerous new Navajo farms in Paiute Canyon which were not in existence in 1934, and succeeded in encouraging more Navajos to move into Paiute Canyon after 1934. 33 TT 4513-16 (Dr. Franklin). Dr. Franklin testified that additional Navajo fields may have been created in area 1 after 1934. However, in their Proposed Findings, the Paiutes claimed that only SCS fields 1.1, 1.2, 1.5, 3, 9, 10, 11, and 12 were created by the SCS after 1934. See 33 TT 4516-20 (Dr. Franklin); Ex. 1531 (Annual report of the Navajo Project SCS Project Number 10 for the Year Ending June 30, 1935); Ex. 1582A (Livestock Movements, LMU2); 43 TT 4723-24, 5723-24, 5735-36 (Dr. Russell); 36 TT 4904-05 (Whiskers); 44 TT 5909-10 (Graymountain). There is no evidence that new fields were created in field area 1, and it is mere speculation that the SCS 1937 figures were not correct for 1934.
[37] See, Ex. 3130 at TC17374.
[38] 33 TT 4493-97 (Dr. Franklin) (field area 2 belonged to the Paiute Dick and Siblings' ambilineage, and was utilized by Paiute Dick, Unap, Mercy Whiskers and Susie Willetson (Paaruy) (all sisters of Kavíi)). Angel Whiskers testified that his family farmed in field area 2 in 1934. 35 TT 4864-73, 36 TT 4885-92, 4900, 4911 (Whiskers) (Whiskers' family had a field which he marked as number 8 on Att. A, which appears to be at the edge of or just outside of Franklin field area 2). Whiskers also testified that "Beecher" had a field (marked as no. 10 on Att. A, which appears to be just outside of Franklin field area 2), although it was not planted in 1934, as Beecher died two years before. 36 TT 4887-88 (Whiskers). Further, Angel Whiskers placed all Navajo fields away from the Franklin field areas 1-6. 36 TT 4900-06 (Whiskers) (marked Navajo fields as nos. 27-37 on Att. A).
[39] 43 TT 5730-32, 5736-37 (Dr. Russell). The LMU2 Agronomy Report records "Dagah" (a Navajo), "Lester Wilitison" [sic], and "Hosteen Altsoii sie igi" (whom the Navajo Nation claims is a Navajo) as owners of SCS field 1.3. Ex. 3130 at TC17375 (LMU2 Agronomy Report).
[40] 32 TT 4433-34, 33 TT 4525-26, 4586, 34 TT 4685 (Dr. Franklin).
[41] 43 TT 5726 (Dr. Russell).
[42] 43 TT 5734 (Dr. Russell).
[43] 32 TT 4486, 33 TT 4493-500, 4506-12 (Dr. Franklin) (field area 3 belonged to the Paiute Dick and Siblings' ambilineage, and was utilized by Unap, Paiute Dick, and Rose Lehi [Tsinavwu]).
Angel Whiskers testified that Paiutes farmed the plot he marked no. 11 (though he had forgotten their names), Dora Nelson had a field marked no. 13 (which appears to be just outside of Franklin field area 3), and Lola Nelson's mother (Asimpu) had a field next to Nelson's (marked no. 14, and outside Franklin field area 3). 35 TT 4864-73, 36 TT 4885-92, 4900, 4911 (Whiskers). Further, Angel Whiskers placed all Navajo fields away from the Franklin field areas 1-6. 36 TT 4900-06 (Whiskers) (marked Navajo fields as nos. 27-37 on Attachment A).
[44] Ex. 3130 at TC17376 (LMU2 Agronomy Report) (field 1.4 owned by Lester Wilitison and Wola ghi).
[45] Dr. Russell admitted that he was not able to identify any Navajo with the name Wola ghi, was unsure if Wola ghi was Paiute or Navajo, and had initially listed Wola ghi as a Paiute. 43 TT 5728-29 (Dr. Russell). Further, two of Dr. Russell's informants told him that field 1.4 was owned by Paiutes. 43 TT 5734 (Dr. Russell).
[46] 41 TT 5567-68 (Dr. Russell); Ex. 3130 at TC17376-77 (LMU2 Agronomy Report) (owners of field 1.5 were Hogan Yazzie, Bena li Bah, and Hosteen Tis Na tie Begay).
[47] Dr. Franklin testified that in 1934, field 1.5 was an uncultivated portion of fields owned by the Paiute Dick ambilineage. He also testified that based on informant accounts, Navajos farmed this plot for three seasons, after SCS construction began in 1935, and that they were given permission to farm the field by Paiutes. 33 TT 4523, 4528 (Dr. Franklin). Dr. Russell testified on cross that two of his Navajo informants, Bert and Berna Little, told him that field 1.5 "belonged to Paiutes" in 1934. 43 TT 5734 (Dr. Russell). Other Navajo testimony corroborates the Paiute claim that field 1.5 belonged to Paiutes. 44 TT 5905 (Graymountain) (Nelson, a Paiute, was in field 1.5).
[48] 32 TT 4486, 33 TT 4493-500, 4506-12 (Dr. Franklin) (field area 4 belonged to the Nelson ambilineage, and was utilized by Dora Nelson, her children, and Willie Lehi (younger brother of Alfred Lehi)).
Angel Whiskers testified that Susie Willetson had a field marked as field no. 15 and Limping Woman Nelson (Nuaxur) had a field next to Paaruy, marked as no. 16. 35 TT 4864-73, 36 TT 4885-92, 4900, 4911 (Whiskers). Further, Angel Whiskers placed all Navajo fields away from the Franklin field areas 1-6. 36 TT 4900-06 (Whiskers) (marked Navajo fields as nos. 27-37 on Att. A).
[49] Ex. 3130 at TC17374-79, 81-82 (LMU2 Agronomy Report) (listed Gwi ja jah, Dugali [Dagah], and Yellow Salt as owners of field 2). Further, although Dr. Franklin claimed that his field area 4 belonged to the Nelson family, Angel Whiskers did not identify any fields as belong to Nelson. 36 TT 4891-92 (Whiskers). Dr. Russell conceded that Gwi ja jah was a Paiute. Ex. 1742 at 2.
[50] 32 TT 4433-34, 33 TT 4525-26, 4586, 34 TT 4685 (Dr. Franklin). See discussion regarding SCS field 1.3.
[51] 32 TT 4432-34, 33 TT 4530-32, 4584 (Dr. Franklin); Ex. 1508.2 (Map 3-4). Dr. Russell admitted that Yellow Salt was associated with Carrie Nelson. 43 TT 5729-30 (Dr. Russell).
[52] 32 TT 4486, 33 TT 4493-500, 4506-12 (Dr. Franklin) (field area 5 was farmed by Limping Woman and her son Lester Willetson, and field area 6 was farmed by the Owl ambilineage, including Ruben Owl).
Angel Whiskers testified that Ruben Owl had a field in this area, marked no. 17 within Franklin field area 5; Haas had a field next to Owl, which was planted by Toby Owl's older brother (marked no. 18 in Franklin field area 5); Whiskers had a field next to Haas, marked no. 19 (apparently outside any Franklin field area). 35 TT 4864-73, 36 TT 4885-92, 4900, 4911 (Whiskers). Angel Whiskers also placed all Navajo fields away from Franklin field areas 1-6. 36 TT 4900-06 (Whiskers) (marked Navajo fields as nos. 27-37 on Attachment A).
[53] Ex. 3130 at TC17374-79, 81-82 (LMU2 Agronomy Report) (Lester Wilitison [sic], Naja, Nalwadyigi, Hosteen Ashe igi Begay and his nephew, One Salt, and Gwi ja jah owned field 2.1). Further, Gilmore Graymountain testified that he and his father (as well as Lester Willetson, Willie Lehi, and Toby Owl) farmed in field 2.1 in 1934. 44 TT 5908 (Graymountain). However, the Navajo Nation does not claim ownership interest based on Graymountain's presence, presumably because the Navajo Nation seeks to base all of its claims of 1934 occupation on the 1937 SCS LMU2 Agronomy Report and Graymountain was not listed.
However, Dr. Russell could not confirm the identity of Hosteen Ashe igi Begay and his nephew. 43 TT 5566-67, 5731-32 (Dr. Russell). Dr. Russell agreed that Lester Willetson, Naja, and Gwi Ja-Jah were Paiutes. 43 TT 5730-32, 5736-37 (Dr. Russell). Further, Dr. Russell admitted that his informants told him that SCS field 2.1 belonged to Paiutes. 43 TT 5736-40 (Dr. Russell) (Keith Holiday, Dallas Ross, Louise Graymountain, Jack Eltsosie and Kate Onesalt stated that Paiutes farmed field 2.1). Kate Onesalt (presumably of the "Onesalt" family listed on the LMU2 Agronomy Report) also told Dr. Russell that they farmed with the Paiutes' permission in field 2.1. 43 TT 5740 (Dr. Russell). See also, 33 TT 4502, 4521-23, 4529-34 (Dr. Franklin).
[54] Ex. 3130 at TC17378-79 (LMU2 Agronomy Report) (owners listed were Charley, Nalwody, Nalwody Begay, Nidschee Begay or Little Man, Dagah, Hosteen Nanicady, Nas Kai Yazzie).
[55] Dr. Franklin testified that field 3 was not a customary Paiute field area in 1934, and the ownership interest in field 3 was therefore shared equally between Sid Whiskers and Mercy Whiskers and her ambilineage. 33 TT 4770 (Dr. Franklin). Dr. Franklin also testified that this field was probably not opened up until 1935. 32 TT 4486, 33 TT 4493-500, 4506-12 (Dr. Franklin). However, there was no other evidence introduced to support this opinion, and other witnesses testified that this field was under cultivation in 1934.
Angel Whiskers testified that there were four fields in this area in 1934; three of these belonged to Navajos, and the other belonged to his parents, Sid and Mercy Whiskers. 36 TT 4891-92, 4904 (Whiskers). The Paiute Tribe thus urges this Court to find that the Paiute Tribe has an interest in one-half of the fourth field farmed by Sid and Mercy Whiskers, or 2.25 acres.
[56] 32 TT 4486, 33 TT 4493-500, 4506-12 (Dr. Franklin) (field area 8 was utilized by Paiute Dick, Unap, Susie Willetson, and Lester Willetson).
[57] The SCS did not record a field at this site. 41 TT 5575 (Dr. Russell) (1935 SCS map did not reflect cultivated land in this area). Further, Dr. Franklin did not personally visit the site, although he viewed the field area with a Paiute informant from above Paiute Canyon. 34 TT 4500, 4771-72 (Dr. Franklin).
[58] Ex. 3133 at 81, Map of Paiute Canyon in LMU2 Engineering Report, and Ex. 3138A (1935 Erosion Map) both show residence sites adjacent to the field areas. See also, Ex. 1528, p. 10 (Donald Collier Study) (discusses residences); Ex. 1405 (Franklin Northern Site List) (Sites N-8 through N-12).
[59] 33 TT 4500-01 (Dr. Franklin) (Paiutes had residence sites adjacent to the fields, and downstream of Franklin field areas 2, 3, 4, 5, and 6); 35 TT 4873-76; 36 TT 4892-900 (Whiskers) (Paiutes would live near the fields during planting season; others had residences down the canyon from the fields, including Unap (marked as no. 21 on Att. A to Paiute Proposed Findings), Dora Nelson (marked as no. 22), Mercy Whiskers (marked as no. 23), Unap (marked as no. 24), and Susie Willetson (marked as no. 25); Whiskers, Unap and others had other residence sites about three miles down the canyon, by the horse trail where Paiute Dick was taken when he died).
[60] Ex. 1528 at 6 (Donald Collier Study) (Paiutes lived in only five hogans in 1933).
[61] See 3138A (1935 SCS map); Ex. 3133A (1937 SCS map).
[62] Those fields which were farmed exclusively by Paiutes do not constitute "exclusive use areas" under 25 U.S.C. § 640d-7. Because "exclusive use areas" are intended to become part of the Reservation of the tribe which occupies the area, I conclude that Congress did not intend to create a patchwork of ownership, where one farm plot belonged to the Paiutes and another to the Navajos. Instead, this Court will evaluate the use of larger areas amenable for inclusion in a reservation or partition. (As noted previously, the Court has no jurisdiction to partition land to the Paiute Tribe.) Even though a number of plots within Paiute Canyon were farmed only by Paiutes, Paiute Canyon as a whole was jointly occupied.
Alternatively, these exclusive farming areas might be appropriate for allotment by the Secretary of Interior to individual Paiutes pursuant to 25 U.S.C. § 640d-8.
[63] 38 TT 5103-07 (Dr. Bunte) (opinion based on Ex. 3152 (1937 Livestock Census Maximum Limit and Permit Compilation for District 2) and Ex. 2521 (Dipping Records, 1934). She increased the figures in the 1937 Livestock Census by the amount of livestock she theorized were sold to the government); Ex. 1508.3 (Bunte Table of Southern Area Livestock). The Paiute Tribe treated sheep and goats as one sheep unit, cattle as four, and horses as five sheep units; this was not contested by the Navajo Nation.
[64] 39 TT 5235-36 (Dr. Bunte).
[65] 39 TT 5241, 5247-48, 5298-99, 5316-17 (Dr. Bunte) (Blue Lee, Joedie Paiute, Harry Francis, Chee Tonny, and Connie Yazzie were not listed as owning sheep or goats).
[66] 39 TT 5215-19, 5238-40 (Dr. Bunte).
[67] 39 TT 5223 (Dr. Bunte).
[68] Ex. 2535 at p. 4 (Report by E.R. Fryer, General Superintendent, History of Stock-Reduction Program on Navajo Reservation, 1935).
[69] 38 TT 5118-19 (Dr. Bunte).
[70] Ex. 3175 at p. WR1108H (LMU3 Range Management Report) (Lists "Go-Nah-Yazzie" as having 30 sheep); Ex. 3211 (LMU3 Dipping Records, 1940) ("Coni Yazzie" owns 35 sheep and goats).
[71] 43 TT 5783 (Preston).
[72] Ex. 3208A (LMU3 Livestock Census); Ex. 3617A (Summary of Paiute southern area livestock and claimed population).
[73] 35 TT 4819 (Lee) (the size of the common herd was around 80).
[74] 38 TT 5166 (Dr. Bunte).
[75] 38 TT 5169 (Dr. Bunte).
[76] Tuba Butte was also called Tuukwarur by the Paiutes, and is designated in the record as "Tuukwarur 1".
[77] Site S-2 is listed by the Paiutes as a 1933 spring camp, Site S-5 is listed as having been used in 1937-38, Site S-7 was used from mid-1930's to late 1930's (possibly in 1934), and Sites S-13 and S-14 were not used until the late 1930's. See, Ex. 1404 (Bunte and Franklin list of southern area sites). The Navajo Nation agrees that Sites 8, 10, and 38 were occupied in the winter of 1934. 39 TT 5287-89 (Dr. Bunte) (Dutchie/Lehi group had winter site at S-8, Harry Francis group had site at S-10, and Connie Yazzie group had winter home at S-38).
[78] 38 TT 5113-15 (Dr. Bunte) (this area was the Dutchie Lehi family's general grazing pattern, but applied to other families as well); 35 TT 4708-10 (Lee) (Lee lived at Black Peak in the winter, and grazed sheep toward Preston Mesa (but not all the way there)). He also grazed to Hamblin Ridge, and met Priscilla Dutchie, Paráan [unknown English name], and Chee Tonny herding at Aayuxich [no English translation]. Lee also testified that he lived at Cedar Ridge that winter, and herded to Bodaway Mesa. See also, Ex. 1415.12; 1415.2.
[79] The LMU3 Range Management report described Paiute grazing in the Willow Springs and Black Peak areas only. Ex. 3175 at WR1108h, paras. 47-49 (LMU3 Livestock Movement Survey from the LMU3 Range Management Report).
[80] 38 TT 5122-23 (Dr. Bunte) (discussing water sources); Ex. 3638 (Russell sketch of water sources in the Willow Springs area).
[81] Sheep are generally grazed 2-3 miles from a corral. 10 TT 1563-64 (Dr. McCawley); 23 TT 3364-66 (Dr. Russell).
[82] 38 TT 5123 (Dr. Bunte); 35 TT 4708-10 (Lee) (he herded the common herd around Willow Springs, near Hamblin Ridge, Hamblin Wash (Tuusikyavitsich), on the east side of Tuba Butte (Tuukwarur 1) and to Pasture Canyon (Paatsipikain)).
[83] 38 TT 5113-15 (Dr. Bunte); Ex. 1415.12; 1415.2.
[84] The Paiute experts listed Site S-3 as used in 1936 or 1937, S-6 used circa the summer of 1936, S-9 used circa 1937, S-9 used circa 1937, S-17 used in the early 1930's, S-18 used circa the summer of 1935, and Site-21 used circa the summer of 1935. The Navajos concede that Sites S-1 and S-4 were used in 1934.
Further, the Navajos argue that the Paiute livestock was not grazed separately in the summer, as Blue Lee testified that the herd was kept together for the summer, and only mentioned separate grazing for the winter. 35 TT 4798 (Lee). However, Lee was not directly asked whether the livestock was grazed separately in the summer, and the Navajo Nation agreed Sites S-1 and S-4 were occupied as summer grazing camps in 1934.
[85] 38 TT 5113-15 (Dr. Bunte); Ex. 1415.12; 1415.2.
[86] 43 TT 5781-83 (Blanche Preston) (Gonah Yazzie's sheep probably kept at Willow Springs).
[87] 38 TT 5111-12 (Dr. Bunte).
[88] 38 TT 5115-18; 40 TT 5346-47 (Dr. Bunte) (area of intensive use demarcated by Crooked Ridge in the north, Hamblin Ridge or Echo Cliffs in the west, below Willow Springs and Tuba Butte on the south, and to White Point on the east).
[89] 38 TT 5116-17 (Dr. Bunte).
[90] The Navajos assert that a realistic estimate of acreage which Paiutes used should be determined by applying the total grazeable acreage of LMU3 to that proportion of LMU3 sheep units owned by Paiutes. The LMU3 Land Planning report states that there were about 1,478,700 acres of grazing land in LMU3, Ex. 3168 at 4, 26 (LMU3 Land Planning Report) (84% of the 1,760,378 acres were suitable for grazing), with 56,514 sheep units competing for the land, Ex. 3208 at 1 (LMU3 1937 Livestock Census), or 26 acres per sheep unit. Under the Navajo calculation, the Paiutes would have used 5,460 acres. The Paiutes argue that the amount needed should be calculated by dividing the acres by the carrying capacity of 47,686 sheep units, or 37 acres per sheep. Ex. 3175 at 1, 24; Ex. 3167 at TC16255. Using this calculation, the Paiute livestock would have required 7,770 acres. The Paiutes argue, however, that the location of grazing is the criteria, not need.
[91] 35 TT 4820 (Lee). This does not address when the livestock was grazed separately.
[92] 10 TT 1563-64 (Dr. McCawley); 23 TT 3364-66 (Dr. Russell).
[93] Dr. Bunte cited Ex. 3175 at WR1108h ("Present Livestock Movement in Dist. No. 3." by Albert Sombrero, p. 8, entries 47-49), which states that "Da-Gah-ie-nie-betsi" was southeast of Gap Trading Post five miles on east side of Echo Cliff, that "Ah-de-soc-ie-tsoi" spent winters south of Crooked Ridge, and summers on the north side of Tuba Butte, and that "Go-Nah-Yazzie" was 8 miles southeast of Gap Trading Post yearlong. The individuals named, except Gonah Yazzie, were not identified. However, these areas are vague and do not support Dr. Bunte's boundaries of the "intensive" use area.
[94] 38 TT 5191-93 (Dr. Bunte).
[95] 38 TT 5120-23, 5195 (Dr. Bunte) (this area considered by the Paiutes to be exclusively theirs; Priscilla Dutchie attempted to keep Navajos out of the area around Site S-8).
[96] 39 TT 5325-26 (Dr. Bunte).
[97] 43 TT 5789 (Preston).
[98] Ex. 3175A at paras. 1-4, 42-43, 46, 55 (Livestock Movement Survey); 41 TT 5612-15 (Dr. Russell); Ex. 3635 (Russell List of Navajo Camps Herding on the Kaibito Plateau Between Willow Springs, White Point, and the Gap).
The Paiutes argue that the LMU3 Range Management Report (the Livestock Movement Survey) does not place Navajos within the claimed "exclusive" use area. Paragraph 1 states, "in winter moved toward Tuba Butte"; the Paiutes argue that this does not indicate that Navajos were in the claimed Paiute "exclusive" area. Paragraph 2: "winters ... northwest of Tuba City about three miles and moves sheep toward Gap in summer"; the Paiute "exclusive area" is six or seven miles northwest of Tuba City, but this individual moves sheep across the Kaibito Plateau in the summer. Paragraph 3: "in winter move to Gap"; although Gap is outside the Paiutes "exclusive" area, the move to Gap would entail grazing across the Plateau. Paragraph 4: "In winter south at foot of White Point"; the Paiutes claim this outside the main Paiute claimed "exclusive" area. Indeed, it appears that the area around White Point cannot be claimed as an exclusive area. Paragraph 42: "yearlong east of Gap Trading Post six miles"; this is north of the claimed Paiute "exclusive" area. Paragraph 46: "winters east of Echo Cliff four miles southeast of Gap, summer moves south of Tuba Butte"; the Paiutes admit this places the herd at the extreme northwestern edge of the area, but contends that Mike Preston, to whom the herd belonged had permission from the Paiutes to graze in that area. 38 TT 5122 (Dr. Bunte). There is no credible evidence that Mike Preston had to gain permission to graze in this area.
Further, the Paiute Tribe claims this number of livestock is not credible. The Paiute Tribe claims that each sheep unit required 37 acres; if the Navajo Nation had 16,000 sheep units in 1937 (which the Paiute Tribe argues would equal approximately 20,000 sheep units in 1934 due to the government reduction programs, 43 TT 5719 (Dr. Russell) (20-25% reduction)), the sheep would have needed 740,000 acres. The Paiute Tribe contends that the "Atatsiv" area is 120,000 acres. If the amount of acreage is calculated using the number of sheep units competing for forage (versus the carrying capacity), the sheep would have need 520,000 acres. However, the Navajo sheep were not in this area all year and utilized forage outside this area in the winter.
[99] Ex. 2638 (Report on Movements Made by Districts 3 and 1 People); 41 TT 5607-12 (Dr. Russell) (60 Navajo families moved in from the Copper Mine area above Crooked Ridge and from Bodaway and Cedar Ridge to use Crevis Well. These Navajos would live by Gap, Black Peak, White Point, Preston Mesa, and Tuba Butte).
The Paiute Tribe responds that Crevis Well is outside the claimed Paiute "exclusive" use area, but does not rebut Dr. Russell's testimony that Navajos lived south of Crevis Well. Further, the Paiute Tribe points out that there was no evidence at trial that the 60 families mentioned in this exhibit were different from those discussed above.
[100] Ex. 3168 at 29 (LMU3 Land Planning Report) ("Permanent water supplies west of Echo Cliffs in the vicinity of Gap Trading Post, Tuba Butte and Tuba City have resulted in a heavy concentration of livestock during the summer months ... large numbers of livestock pour into the area during the dry season because of available water.") The Paiute Tribe responds that the Navajos were unable to show significant use in the winter. However, substantial seasonal use is sufficient to establish an interest in the land.
Ex. 3167 at TC16254, TC16257 (LMU3 Oral Report) (there is a concentration of livestock, especially in summer, around Red Lake, Tuba City, and Willow Springs). The Paiute Tribe argues that none of these area are within the Paiute claimed "exclusive" area (as "Willow Springs" most likely refers to Lower Willow Springs).
[101] Ex. 3621A-E (Russell Southern Area Overlay Map Showing Areas Used by Navajo Camps); Ex. 3624 (Russell LMU3 Camp Books); Ex. 3131.1, .2, .3, .4 (Russell Site Maps); Ex. 3635 (Russell List of Navajos Herding on the Kaibito Plateau between Willow Springs, White Point and Gap) (17 camps with total of 5,081 sheep units; this did not include every family using areas as recorded by the SCS, as Dr. Russell tried to discern patterns of use).
Dr. Russell testified that Camp 27, "Old Nockideneh" and his family, had 204 sheep units in 1937; in 1934 they used Crevis Well and Rough Rock Wells, 2 miles north of Tuba Butte. Camp 31, Joe Attaiki and family, owned 283 sheep units in 1937 (when recorded by the SCS); in 1934, the family came to Tuba Butte and Black Peak in the summer, had two residence sites for water in the area and farmed at Moenave. Camp 47, Jack Homer, owned 254 sheep units in 1937, farmed at Littlefields, and had a residence site to the east of Tuba Butte in 1934. Camp 54, Abe Wilson and family, owned 381 sheep units in 1937; in 1934, they utilized a residence site above Lower Springs from which they herded in the Tuba Butte area, and utilized a residence site to the west of Willow Springs, from which they herded in the Gray Ridge area. Other families followed this pattern. Camp 55, Mike Preston and his family, owned 481 sheep units in 1937; in 1934, the family farmed at Tissi El to the west of Moenave and grazed between Black Peak and Tuba Butte, utilizing water at "Water in the Woods" and Crevis Well. Camp 66, Haska Bancroft, owned 800 sheep in 1937, and had a farm and grazing area in the White Point area in 1934. Camp 69, Arlie Webster and her granddaughters, owned 122 sheep units in 1937; they farmed at Lower Willow Springs, and had a residence site above Willow Springs from which they would herd to Tuba Butte in 1934. Camp 83, John Sampson and his family, owned 713 sheep units in 1937; in 1934, they grazed in the Gap/Crevis Well area, and had residences at Gap, Water in the Wood and west of White Point. Camp 120, Ben Allen and his family, owned 241 sheep units in 1937; in 1934, they farmed at Moenave, had a residence site northeast of Tuba Butte, and herded around Tuba Butte, Black Peak and occasionally to the south of Moenave. Camp 135, Jerry Neztsosie and his family, owned 232 sheep units in 1937; they farmed and lived at Lower Willow Springs, from which they herded north to "Hard Spot Water" in 1934. Camp 186, Lucy Alford and her family, owned 77 sheep units in 1937; they moved to Tuba City in the summer for farming, and grazed around Black Peak and Water in the Woods. Camp 196, Ed Whitehair and several other families, had 285 sheep units in 1937; they lived near the Gap and grazed near Black Peak in 1934. Camp 201 consisted of Charley George and Fred Mott families, and owned 302 sheep units in 1937; they farmed at Littlefields (south of Lower Willow Springs) and grazed up to Tuba Butte and around Crevis Well during the summer of 1934. Camp 204, Chester Tallman and family, had 56 sheep units in 1937; in 1934, the family grazed in an area near Tuba Butte, farmed and grazed at the Littlefields area, grazed along Hamblin Wash, and had a residence site to the west of Hidden Springs. Camp 225, Harvey Butler and family, owned 358 sheep units in 1937, and utilized the areas around Crevis Well and south of White Point in 1934. Camp 248, the Do el Neversleep family, had 449 sheep units in 1937; in 1934, they lived and farmed in the White Point area, and had another residence west of White Point. Camp 259, Navajo Jean and family, owned 90 sheep units in 1937; in 1934, they lived at the southern end of White Point and had two farms in the area. 41 TT 5615-16, 42 TT 5631-34, 5639-55 (Dr. Russell).
[102] 43 TT 5750-52 (Dr. Russell).
[103] 25 TT 3595-3604 (Helen Tsinnie) (re: Navajos around White Point); Ex. 3599 (Map depicting locations of Navajo farms near White Point identified by Tsinnie); 43 TT 5780-89 (Blanche Preston) (her family was living at Water in the Woods in 1934 and had fields at White Point and Tissi El. Other Navajos farmed and grazed at White Point, grazed around Water in the Woods, and lived at Flatrock Springs, Jack Homer Springs, Willow Springs); 44 TT 5825-31 (Lorraine Jefferson) (lived at Rough Rock Well; other Navajos lived and grazed in that area, but did not see Paiutes grazing in this area); 35 TT 4820-23, 4827-30 (Blue Lee) (Navajos used the spring above Willow Springs; Hosteen Bitsiílighaí was the only Navajo to graze around Black Peak; did not see Navajos except Hosteen at Hidden Springs, along Crooked Ridge; Navajos came to water sheep at Topaa, north of White Point; Navajo named Tsosie grazed sheep near Tuba Butte); 26 TT 3744-45, 3753-55 (Deposition of P. John); 40 TT 5411-12, 5423-646, 5450-53 (Deposition of J. Norman) (saw Navajos by Black Peak, the fields at Moenave, at Gap and at Willow Springs).
[104] 38 TT 5103-07 (Dr. Bunte) (opinion based on Ex. 3152 (1937 Livestock Census Maximum Limit and Permit Compilation for District 2) and Ex. 2521 (Dipping Records, 1934). She increased the figures in the 1937 Livestock Census by the amount of livestock she theorized were sold to the government). See also, Ex. 1508.4 (Bunte list of Northern Area San Juan Livestock); 36 TT 4912-17 (Whiskers) (Paiutes owned 1006 sheep units in 1934).
[105] 38 TT 5104, 39 TT 5222-23 (Dr. Bunte).
[106] 39 TT 5210-13 (Dr. Bunte).
[107] Ex. 3632 (List of Navajos herding on Rainbow Plateau and Paiute Canyon; LMU2 1937 Livestock Census with camp members highlighted) (excluding Whisker's and Lehi's stock, the Paiutes owned 188 sheep and goats, 9 cattle, and 39 horses, for a total of 419 sheep units); Ex. 3152 (LMU2 Livestock Census).
[108] Ex. 3632 (SCS Study) (Curtis Lehi's children owned 100 sheep, 10 goats, 1 head of cattle, and 5 horses, for a total of 139 sheep units).
[109] Dr. Russell admitted on cross-examination that his Navajo informants indicated that one quarter to one third of the sheep units listed for Sid Whiskers were his and the rest were Mercy's. 43 TT 5720-21 (Dr. Russell). Further, Angel Whiskers testified that all of the livestock in his family belonged to his mother Mercy and her children. 37 TT 5005-06 (Whiskers). The Court finds that all the sheep listed as belonging to Sid Whiskers were in fact owned by Mercy Whiskers. See, Ex. 3632 (SCS Study) (Sid Whiskers listed as owning 16 sheep, 9 goats, 6 cattle, and 10 horse, or 99 sheep units).
[110] 38 TT 5129-31 (Dr. Bunte); Ex. 1415.12; Ex. 1405 (Franklin list of northern area sites).
[111] 38 TT 5124, 5130 (Dr. Bunte); Ex. 1507A (Map of Paiutes' Northern Area Winter Residences); 34 TT 4658-60 (Dr. Franklin) (all but two winter residences from 1928 to time of trial were in Utah).
[112] Ex. 2699 at 2 (Malcolm Carr Collier Study) (No Paiutes living south of Navajo Mountain [in Utah] in 1938-39).
[113] Although Angel Whiskers of the Paiute Dick ambilineage testified that his family spent the winter of 1933-34 in the canyon areas near the San Juan River, several miles north of the Utah-Arizona border, 37 TT 4992-5010 (Whiskers), he also testified that they had winter camps in Arizona in that same year at Rainbow Lodge (Tuupaats), Balanced Rock Mesa (Muukwivaats), Yellow Box Canyon (Oaavoaxat), Jack Rabbit Canyon (Kamuoip), and Red House (Akakan). 36 TT 4921 (Whiskers). Oaavoaxat and Kamuoip correspond to Drs. Bunte and Franklin's Sites N-1 and N-3, respectively. The Court does not find Whiskers' testimony credible that he resided at five camps in Arizona and a number in Utah in one winter, especially given the Paiute expert testimony that the Paiutes generally occupied one or two winter sites.
[114] 38 TT 5129-31 (Dr. Bunte); Ex. 1415.12. Angel Whiskers testified that his ambilineage grazed its sheep south of Navajo Mountain on the Rainbow Plateau in Arizona. 36 TT 4921-30 (Whiskers); Ex. 1400A, I-V.
[115] In the 1920's the Paiutes built a fence in Utah to keep Navajo livestock south of the fence and to keep Paiute livestock north of the fence, which the Navajo Nation asserts was in place in 1934. 38 TT 5135, 39 TT 5253-54, 40 TT 5349 (Dr. Bunte). However, there is no evidence that this fence prevented Paiutes from bringing their livestock to graze in Arizona at their winter sites.
[116] 38 TT 5124-25 (Dr. Bunte).
[117] The Navajos urge that Angel Whiskers' testimony indicates that the sheep were brought directly to Paiute Canyon, stopping only for water on the way at Tse Ya Toe Spring. 36 TT 4932-33 (Whiskers). Although this implication cannot be drawn from his testimony, the Navajo Nation is correct that Whiskers did not mention Bowl Mesa nor place any sites in that area. 36 TT 4931-33 (Whiskers); Ex. 1400A.
[118] 38 TT 5124-29 (Dr. Bunte); 36 TT 4931-34, 4941-42 (Whiskers); Ex. 1400A.
[119] Ex. 3618A (Summary of Paiute Population and Livestock for Northern Settlement Group) (the Nelsons had 4 sheep, 13 goats, and 9 horses, and the Owl family had 5 horses). However, the Nelson and Owl ambilineage consisted of more families.
[120] Ex. 1405 (Franklin Northern Site List) (Site N-6 used in "mid to late 30's up to 1939"; site N-7 used in 1939).
[121] Ex. 1582, pp. AO6707-08, entries 42-44 (LMU2 Range Management Report) (Lester Willitson [sic] with 318 sheep, 42 horses, 16 cattle would summer along the rim of Piute [sic] Canyon and had a farm in the canyon; "Gini-ja-jah" [identified as a Paiute] with 32 sheep and 7 horses would summer along the rim of Piute [sic] Canyon from May 1st to Oct. 30th and had a farm in the canyon; "Na-ja" [Ruben Owl] with no sheep and 6 horses would also summer along the rim of Piute [sic] Canyon from May 1st to Oct. 30th and had a farm in the canyon).
[122] This is the trail that Angel Whiskers referred to as the trail up which Kavii was taken when he died.
[123] 36 TT 4926-27 (Whiskers).
[124] See, Ex. 1411 (northern sites map); Ex. 1405 (list of northern area sites); Ex. 1423 (Bunte Supplemental Sites List); 38 TT 5109-10 (Dr. Bunte).
[125] 39 TT 5284-85 (Dr. Bunte).
[126] Sheep generally grazed within 2-3 miles of their corral. 10 TT 1563-64 (Dr. McCawley); 23 TT 3364-66 (Dr. Russell).
[127] 38 TT 5124-29 (Dr. Bunte); 36 TT 4934-41 (Whiskers); Ex. 1400A, VII.
[128] 36 TT 4934-42, 4952 (Whiskers) (he, his mother, Curtis Lehi, Kavii, Unap, Susie Willetson, Paaruy, and Dora Nelson grazed in the same areas; it would take two weeks to travel from Shonto (Tavivaats) to Paiute Canyon).
[129] 38 TT 5133 (Dr. Bunte).
[130] 36 TT 4937 (Whiskers).
[131] 38 TT 5127, 5266-67, 5273-74 (Dr. Bunte).
[132] 39 TT 5268 (Dr. Bunte) (agrees that Ex. 1582A, LMU2 Livestock Movement Survey, makes no mention of Paiutes grazing south of Paiute Canyon).
[133] 44 TT 5871-78 (Austin).
[134] Ex. 1405 (Bunte and Franklin list of northern area sites).
[135] 40 TT 4965-67 (Whiskers); Ex. 1400A, XVI.
[136] 38 TT 5140-42 (Dr. Bunte).
[137] 36 TT 494345, 4949-50, 4964-65 (Whiskers) (he, Unap and Masii grazed sheep on Paiute Mesa in the summer of 1934); Ex. 1400A, IX; 38 TT 5131-33 (Dr. Bunte) (sites on edge of Paiute Mesa).
[138] 39 TT 5261-63 (Dr. Bunte).
[139] 34 TT 4730-31 (Dr. Franklin).
[140] 44 TT 5885 (Austin) (had 1934 winter camp on Paiute Mesa, and didn't see any Paiutes there).
[141] 36 TT 4942-44 (Whiskers); Ex. 1400A, VIII; Ex. 1405 (Franklin Northern Sites List) (Sites N-17, N-22 through N-25 pinon gathering camps).
[142] 38 TT 5139-40, 5142 (Dr. Bunte).
[143] 36 TT 4953-57 (Whiskers); Ex. 1400A, XII-XVI; 38 TT 5136 (Dr. Bunte) (Paiute horses grazed in Utah behind Navajo Mountain, at the Tse Ya Toe area and in the Paiute Mesa area; mesa used as corral at the edge of Paiute Mesa and Paiute Canyon).
[144] 40 TT 5387-5390 (Deposition of P. John) (Paiute practice of hobbling horses); 38 TT 5197 (Dr. Bunte) ("a number of their horses would have been grazed right around their home sites, especially in the north where they had a larger number of horses. They were grazed in some other specific areas, as well .."); 37 TT 5068 (Whiskers) (checks on his horses once a year behind Navajo Mountain).
[145] 38 TT 5135, 40 TT 5346-47 (Dr. Bunte); Ex. 1418 (Map of "exclusive" grazing areas); Ex. 1508.1 at p. 10; Ex. 1400A, XXV. This Court has already found that the Paiutes did not use Paiute Mesa in 1934.
[146] Ex. 1528 at 1 (Donald Collier Study) (over 40 Navajos living in Paiute Canyon in 1933); Ex. 2699 at 6 (Malcolm Carr Collier Study) (in 1937, nine Navajo camps, consisting of 135 people, lived year-round on Rainbow Plateau); Ex. 2932 at 25-26 (Malcolm Carr Collier Dissertation) (Camps in this area move nearer to the mountain in the winter where they have greater protection from snow and easier access to water, school and the trading post; each camp has several sites); Ex. 2932A (Collier Rainbow Plateau Map).
[147] Ex. 3083 (Russell LMU2 Camp List) (Navajo camps used the Rainbow Plateau, Paiute Canyon and Paiute Mesa in 1934); Ex. 3628 A-D (Russell Northern Area Overlay Map); Ex. 3629 (Russell LMU2 Camp Books).
See, 41 TT 5513-14, 5543-58 (Dr. Russell) (Camp NM-1, Bert Little and his family, owned 381 sheep units in 1937, and resided near Navajo Mountain in 1934, grazing south of Navajo Mountain, around Balanced Rock Mesa. They also farmed in Paiute Canyon but did not take their livestock with them. Camp NM-2, Howard Salt and his family, owned 187 sheep units in 1937, and grazed south of Navajo Mountain in the winter. In the summer, they had two residence sites on the central Rainbow Plateau, one north of Tse Ya Toe Spring and one on the western rim of Paiute Canyon, from which they grazed their stock, and farmed in Paiute Canyon. Camp NM-3, Old Man Graymountain and family, was a large camp with 21 members, owned 752 sheep units in 1937. They wintered on the eastern part of the Rainbow Plateau south of Jackrabbit Canyon, at which they had 3 sites; they summered at 3 sites near Tse Ya Toe Spring, and farmed at two fields in Paiute Canyon and two fields near their winter sites on Rainbow Plateau. Camp NM-4, Slim Elsogie (or Eltsosie) and his family had 80 sheep units in 1937. They wintered in Utah just north of the boundary line, had a fall residence above Jackrabbit Canyon around which they grazed, and in summer moved to two residence sites north of Tse Ya Toe. They also farmed in Paiute Canyon, in which they grazed their livestock. Camp NM-7-A, Begay Smallcanyon and his wife Mary Smallcanyon and their family owned 665 sheep units in 1937, had winter sites near Navajo Mountain and on the central southern Rainbow Plateau. In the summer, they had a residence site and a farm on the southeast corner of the Rainbow Plateau (near their winter site), and farmed in Paiute Canyon. Camp NM-7-B, Begay Smallcanyon and his wife Aggie Smallcanyon and her family owned 671 sheep units in 1937. They wintered by Navajo Mountain (but utilized the southern portion of the Rainbow Plateau). They summered immediately next to Tse Ya Toe, and had fields on the plateau above Tse Ya Toe and in Paiute Canyon. Camp NM-7-C, Mable Onesalt and Oldman Endischee, owned 484 sheep units in 1937, and wintered south of Navajo Mountain at two winter sites. They had a field area south of Navajo Mountain as well, two summer residence sites at Tse Ya Toe, and a residence and two fields in Paiute Canyon. Camp NM-7-D, Inez Endischee and her family owned 853 sheep units in 1937, and wintered southeast of Navajo Mountain and had a field below Navajo Mountain. In the summer they moved to Tse Ya Toe, and farmed in Paiute Canyon. Camp NM-5, Eugene Holgate and his family owned 191 sheep units in 1937, and wintered north of the Arizona-Utah border. In the summer they had a residence by Tse Ya Toe Spring, and resided and farmed in Paiute Canyon. Camp NM-6, Check Endischee and his family owned 213 sheep units in 1937, and wintered south of Navajo Mountain. They also had a field south of Navajo Mountain and in the summer moved to Tse Ya Toe and farmed in Paiute Canyon. Camp NM-9, Jim Salt and his family owned 287 sheep units in 1937, resided in the summer on the southwest rim of Paiute Canyon, and wintered at the edge of Navajo Canyon, south of Paiute Canyon. Camp NM-14, Sid and Mercy Whiskers, with 99 sheep units, wintered in Utah and had a farm in Paiute Canyon. Camp NM-13, Luke Chief and his family, owned 123 sheep units in 1937, lived in Utah in the winter, and farmed in Paiute Canyon in the summer; they kept their livestock in Paiute Canyon. Camp NM-15, Ben Yazzie (or Ben Shorty, Shorty Graymountain) and his family, owned 140 sheep units in 1937. They wintered in Utah just north of the Arizona border, and utilized part of the land in Arizona. In the summer they lived with Old Man Graymountain (Camp NM-3) near Tse Ya Toe and farmed in Paiute Canyon. Camp NM-16, Dick Navajo (with three families) owned 670 sheep units, farmed in Paiute Canyon and utilized the water and range around Tse Ya Toe).
The Paiute Tribe challenges only Camp 14, which belonged to Sid Whiskers, a Navajo, and his wife Mercy Whiskers, a Paiute. Dr. Russell listed a farm for Sid Whiskers and a grazing area in Paiute Canyon. The Court previously found that the Navajo Nation did not gain an interest through Sid Whiskers, who gained access to the Paiute Canyon field through his wife.
[148] 44 TT 5840-54 (Rex Neztsosie) (family had 2,000 sheep and goats, 20 cattle, and 50 horses and mules in 1934, which grazed at the base of Navajo Mountain in the winter by Jack Rabbit Canyon and Red House, among a number of other areas. In the summer, they would graze in Paiute Canyon and south of Paiute Canyon in Navajo Canyon. They would also farm in Paiute Canyon and on Rainbow Plateau, as did other Navajos). The Paiute Tribe argues that Neztsosie's testimony should be viewed with caution, because he testified that his neighbor, Toby Owl, lived only in Utah, while he lived in Arizona. 44 TT 5841-65 (Neztsosie).
44 TT 5892-5912 (Gilmore Graymountain) (In summer they would herd sheep from Navajo Mountain Trading Post and Rainbow Lodge to Tse Ya Toe and north to Jackrabbit Canyon. His family kept cattle in Paiute Canyon below the farms toward the San Juan River. A number of Navajos farmed in Paiute Canyon).
36 TT 4900-05, 4911, 4974-75, 37 TT 5058-61 (Angel Whiskers) (Navajos had fields in Paiute Canyon; Hosteen Endischee had sheep and goats by Tse Ya Toe; only knew 3 Navajos in Arizona and "there were not much Navajo then").
[149] 23 TT 3364-66 (Dr. Russell). See also, 10 TT 1563-64 (Dr. McCawley).
[150] 43 TT 5 719-20 (Dr. Russell).
[151] Ex. 3632 (Russell List of Navajos herding on Rainbow Plateau and in Paiute Canyon).
[152] Ex. 2932 at p. 36.
[153] Ex. 3083 (Russell LMU2 Camp List).
[154] 43 TT 5687-5704 (Dr. Russell); Ex. 1431.96 (overlay); Ex. 1431.97 (paper copy).
[155] Ex. 3130 at TC18305-07, TC17383-84 (LMU2 Agronomy Report); Ex. 3129 at 20, 63-67 (LMU2 Land Planning Report); Ex. 1582 (Livestock Movement Survey from LMU2 Range Management Report).
[156] Ex. 1528 at 1 (Donald Collier Study) (population shift to Navajo); Ex. 2932 at 15-16, 20 (Malcolm Carr Collier dissertation); 43 TT 5768-70 (Dr. Russell) (Collier's study placed Navajos in the area); Ex. 3622 (LMU3 photographs of Navajo use).
[157] 44 TT 5890-5914 (Gilmore Graymountain); 44 TT 5840-54 (Rex Neztsosie).
[158] 36 TT 4974-80 (Whiskers) (Hosteen Endischee and Ruben Owl made a deal that Muuputs could butcher one of his sheep when he was hungry, in exchange for grazing in the area); 38 TT 5134 (Dr. Bunte) (deal between Nidishchiii and Muuputs); Ex. 2932 at 19 (Malcolm Carr Collier, "Local Organization Among the Navajo") (White Man Killer obtained rights to land [around Navajo Mountain] by giving a number of horses to a Paiutes; the Paiutes account that no horses were given).
[159] 38 TT 5134-35 (Dr. Bunte); 36 TT 4975-77 (Whiskers). If Indischee [Endischee] were the party to the contract, he moved into the area after he married the daughter of a man who had lived in the area since 1890. 41 TT 5523, 5549-50 (Dr. Russell).
[160] 33 TT 4535-36 (Dr. Franklin).
[161] Paiute basket production accounted for $200 of trade at trading posts on the western Navajo Reservation in Arizona in 1933, and $785.25 of trade on the western Navajo Reservation in Utah. Ex. 2492 at 167/230 and 167/249 (Chart, 1934 Annual Statistical Report of the Western Navajo Agency) (value of basketmaking and reed work for 1933); 33 TT 4623-26 (Dr. Franklin) (the average price of a basket in 1933 was $3 to $5. He agreed that this represented 60 to 70 baskets in Arizona, and 35 baskets in Utah, but that not all baskets sold to traders were new).
[162] Paiutes were a main source of Navajo wedding baskets in 1934. 33 TT 4535-37 (Dr. Franklin); Ex. 1504 (Omer C. Stewart, "The Navajo Wedding Basket â 1938"); Ex. 2441 (Donald Collier Report, 1933-34) (Paiutes learned the design and manufacture of wedding baskets from Navajos); 13 TT 2025-26 (Ainsworth) (Hopis traded with Paiutes for baskets); 13 TT 2068 (Honahni) (Hopis traded with Paiutes for baskets); 25 TT 3607 (Tsinnie) (Paiute woman brought basket to trade for meat); 35 TT 4838, 4840 (Deposition of J. Humetewa) (Paiutes sell baskets for "food and stuff"); 35 TT 4843 (Deposition of R. Lomayesva) (saw Paiute baskets at Oraibi trading post); 40 TT 5369 (Deposition of P. John) (Paiutes used to make Navajo wedding baskets; it "was the only thing that fed them"); 44 TT 5854 (Neztsosie) (Paiutes would trade a basket for some sheep).
[163] 33 TT 4538-42, 34 TT 4778-80 (Dr. Franklin); Ex. 1417 (Franklin map, "Gathering of Basketry Materials", circa 1934); Ex. 1508.2, App. E (Map 5-1) (same); 36 TT 4968-69 (Whiskers); Ex. 1400A (sumac gathering areas designated by blue-lines, XX-XXIII); 35 TT 4810-12 (Lee) (gathered shuuv at Taakaan near Moenkopi and Pasture Canyon and gathered mountain mahogany at "Tonapixyatu" [no English translation] south of Gap).
[164] 33 TT 4538-42 (Dr. Franklin).
[165] 33 TT 4545-46 (Dr. Franklin).
[166] 33 TT 4546-48 (Dr. Franklin).
[167] 33 TT 4631-33, 4635 (Dr. Franklin).
[168] Dr. Franklin's areas are much broader than those drawn by Angel Whiskers on Ex. 1400A, XX-XXIII, and to that testified to by Blue Lee.
[169] 33 TT 4632-33, 4637 (Dr. Franklin).
[170] 33 TT 4541-42 (Dr. Franklin) (Sumac was harvested several times a year, and burned for management in the spring).
[171] 33 TT 4620, 4632-33 (Dr. Franklin).
[172] Adult females and young women made the baskets. 33 TT 4620 (Dr. Franklin). The best evidence indicates that there were only six Paiute women in the southern area making baskets, 35 TT 4811 (Lee), and ten in the northern area. Ex. 2492 at 167/249.
[173] 38 TT 5139-43 (Dr. Bunte); 35 TT 4813 (Lee); 36 TT 4965-70, 5070 (Whiskers); Ex. 1400A (pinon picking areas bounded by pink lines, XVI-XIX). The areas Dr. Bunte opined were utilized for gathering pine nuts are depicted on Ex. 1415.6.
[174] 38 TT 5139-43, 47-48, 5170, 5185-86 (Dr. Bunte).
[175] Dr. Bunte's pinon gathering areas were much broader than Whiskers': Angel Whiskers did not place any gathering areas on Paiute Mesa or west or southwest of Paiute Canyon (except a small area on Chaiyahi Rim).
[176] 38 TT 5148 (Dr. Bunte).
[177] The areas in which Dr. Bunte testified the Paiutes gathered plants are depicted on Ex. 1415.7. 38 TT 5143-49 (Dr. Bunte); 36 TT 4670 (Whiskers); Ex. 1400A (gathered around camps, marked with red X's, # 5-10, # 32-45); Ex. 2441, p. 3 (Donald Collier Study).
[178] 38 TT 5182 (Dr. Bunte).
[179] 38 TT 5148 (Dr. Bunte).
[180] The area in which Dr. Bunte opined Paiutes hunted is set forth on Ex. 1315.9. 38 TT 5150-52, 40 TT 5343 (Dr. Bunte); 35 TT 4813 (Lee); 36 TT 4671 (Whiskers); Ex. 1400A (hunted around camps, marked with red X's, # 5-10, # 32-45).
[181] 38 TT 5153-54 (Dr. Bunte); 35 TT 4813-14 (Lee); 36 TT 4969-70 (Whiskers); Ex. 1400A (gathered wood at each camp, marked with red X's, # 5-10, # 32-45).
[182] 38 TT 5154-58 (Dr. Bunte).
[183] 40 TT 5340 (Dr. Bunte).
[184] 25 U.S.C. § 640d-20 provides:
Notwithstanding anything contained in this subchapter to the contrary, the Secretary shall make reasonable provision for the use of and right of access to identified religious shrines for the members of each tribe on the reservation of the other tribe where such use and access are for religious purposes.
[185] The attached map is not intended to reflect the precise boundaries of any use area.