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