Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: HOPI CLAIMS EARL H. CARROLL, District Judge. INTRODUCTION I. Parties 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 of the Navajo Nation 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. II. Background In 1974, the Hopi Tribal Chairman commenced this action pursuant to 25 U.S.C. § 640d-7 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.” This lawsuit is the second action between the Navajo and Hopi Tribes to settle title in reservation lands in northeastern Arizona. The rights of the Navajo and Hopi Tribes in a parcel withdrawn by Executive Order on December 16, 1882 (“the 1882 Reservation”) were previously litigated in a separate line of cases. See Healing v. Jones, 210 F.Supp. 125 (D.Ariz.1962), aff'd, 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963); Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir.1974). Supplementary proceedings still continue regarding the payment of “owelty” for differences in value of land received, damage to the land partitioned to the Hopi Tribe (the Hopi Partitioned Lands, or “HPL”), and prepartition “use” of the HPL by Navajos. Although the 1882 Reservation litigation is not relevant to the disposition of this lawsuit, the events of that dispute provide background understanding of the Navajo-Hopi land dispute, and may guide this Court in various ways in its decision. The present case has centered on who were “such other Indians” entitled to assert interests in the 1934 Reservation, which lands in the 1934 Reservation were subject to litigation, and where “such other Indians” were “located” in 1934; these Findings of Fact and Conclusions of Law will determine where “such other Indians” were located. Subsequent to these findings, the Court will conduct a trial regarding partition of the 1934 Reservation pursuant to § 640d-7(b) (Phase II). III. Who are “such other Indians”? The District Court previously held that the Hopi Indians were “such other Indians”: “The Court takes judicial notice that a Hopi village existed at Moencopi on June 14, 1934. Moencopi is within the 1934 Act land grant, and therefore, the Hopi are within the ‘such other Indians’ clause and are holders of equitable interests.” Sekaquaptewa v. MacDonald, 448 F.Supp. 1183, 1193 (1978) (hereinafter, “Sekaquaptewa I”), aff'd in part, rev’d in part, Sekaquaptewa v. MacDonald, 619 F.2d 801 (hereinafter, Sekaquaptewa II”), cert. denied, 449 U.S. 1010, 101 S.Ct. 565, 66 L.Ed.2d 468 (1980). The San Juan Southern Paiute Indians (the “Paiutes” or “Paiute Tribe”) are also “such other Indians” and holders of equitable interests in the 1934 Reservation. In previous orders, this Court upheld the Department of Interior recognition of the Paiutes as an Indian tribe, and held that the Court had jurisdiction to determine their interests in the 1934 Reservation as “any other tribe of Indians”, pursuant to 25 U.S.C. § 640d-7. These findings will address only the location of Hopi Indians in 1934; separate findings will be issued regarding the location of the Paiutes in 1934. IV. Which lands are excluded from litigation? Certain lands within the boundaries of the 1934 Reservation were expressly exempted from the granting clause of Section 1 of the 1934 Act. These include the 1882 Reservation and certain lands previously reserved by Congress for water power purposes and power sites. Moreover, other lands had been permanently reserved by Congress prior to 1934, and were thus not in dispute, including lands reserved by the 1868 Treaty with the Navajo Nation, 15 Stat. 667 (located in the northeastern corner of the 1934 Reservation), and lands withdrawn by the Act of May 23, 1930, 46 Stat. 378, and the Act of February 21, 1931, 46 Stat. 1204 (both along the western edge of the 1934 Reservation). Further, allotted lands for which patents issued were excluded from the scope of this litigation pursuant to § 640d-16(a). The Navajo Nation had argued that other lands were excluded from the scope of the litigation, as well. The 1934 Act conveyed an equitable interest to the Navajos and “such other Indians” on “vacant, unreserved, and unappropriated public lands”. The Navajo Nation brought a number of motions for partial summary judgment asking this Court to find that certain lands within the boundaries of the 1934 Reservation were not “vacant, unreserved, and unappropriated”, and thus not subject to the claims of the Hopi Indians. The Court held that some of these lands were “unreserved and unappropriated” and thus not subject to Hopi and Paiute claims, including 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. Further, the Court held that other lands were “reserved and appropriated” and subject to Hopi claims, including allotted lands for which patents did not issue, and “school lands” which were un-surveyed or surveyed after withdrawal of the land pursuant to Executive Order. The location of these “excluded” lands has not been established; in Phase II of this litigation regarding partition, the parties will have the opportunity to present evidence regarding the location of these lands. V. What is sufficient occupation, possession, or use to create a property interest in the 1934- Reservation? The District Court previously held that the interests of the Hopi Tribe in the disputed lands were based on Hopi “occupation, possession, or use” in 1934, and that any Hopi interest was limited to an undivided one-half interest in these lands. Sekaquaptewa I, 448 F.Supp. at 1193, 1196. Both parties appealed, and the Ninth Circuit reversed in part “only with respect to the district court’s holding that Hopi title is necessarily non-exclusive, even with respect to land that was actually and exclusively ‘possessed, occupied, or used’ in 1934.” Sekaquaptewa II, 619 F.2d at 809-810 (1980). The Ninth Circuit affirmed the District Court’s interpretation of the 1934 Act that Hopi interest in the 1934 lands depended on Hopi occupation, possession, or use of the lands on June 14, 1934. The Court stated: The purposes, history, and language of the 1934 Act show an intent to withdraw all reservation land for. the Navajos except for pockets occupied by Hopis. We agree with the district court that this is the meaning of the “such other Indians as may already be located thereon” provision. The legislative history discussed by the district court at 448 F.Supp. 1194-96, supports this conclusion. * * * * * * [Legislative intent is clear enough to enable us to identify Hopi interests by areas settled. Navajo interests are identifiable as the residue. Congress recognized Hopi concern over the 1882 Reservation and their villages, shrines, and grazing areas outside the 1882 reservation. The “such other Indians” provision was explained to the Hopis as protecting their rights to areas occupied outside the 1882 reservation. * * * * * * The Act was not intended to disturb then-existing land tenure patterns_ [and] would not disturb the Hopis’ right to occupy the land they were then occupying. This is consistent with the intent of the 1934 Act to preserve a status quo and not to disturb existing arrangements. Sekaquaptewa II, 619 F.2d at 807-808. While it is thus clear that Hopi land use in 1934 would be protected, the courts have not previously decided what types of land use, i.e. “occupation, possession, or use”, were sufficient to create a property interest in the 1934 Reservation. The District Court did, however, clarify that “actual occupation” (presumably continual physical presence) was not necessary: [T]he Navajo attempt to limit Hopi rights and interest to land actually occupied by the Hopi is misplaced. The 1934 Act protects both Hopi occupancy and land use. For example, grazing land and religious shrines may fall within the scope of the land grant to the Hopi. These issues present a mixed question of law and fact, however, and the Court will not rule at this time on what types of land uses are sufficient to create a property interest under the 1934 Act. After discovery, the Court can determine which kinds of Hopi possession or use on June 14, 1934 were substantial enough to create property rights within the area set aside by the boundary bill. Sekaquaptewa I, 448 F.Supp. 1196. The legislative history of the 1934 Act is sparse, and gives no guidance in determining what land use was substantial enough to create this property interest. A discussion of the legislative history is contained in Sekaquaptewa I, 448 F.Supp. at 1193-96 (the “only meaning this clause could plausibly be given in light of the legislative history is to protect the rights and interests of the Hopi tribe to the land they were using and occupying outside the 1882 Reservation on June 14, 1882”). The language and legislative history of the Navajo-Hopi Settlement Act, 25 U.S.C. § 640d-7, is similarly unhelpful. Although the legislative history is replete with discussion regarding whether a legislative or judicial solution to the 1934 Reservation dispute was appropriate, there is no discussion or reference to what type or intensity of land use would be sufficient to create a property interest. The Hopi Tribe urges that the Court determine where Hopis were located with reference to their “traditional practices and modes of life”, as interpreted by various Indian Claims Commission and Court of Claims cases adjudicating aboriginal title claims by Indian tribes. The words “use”, “occupancy” and “possession” have acquired a special meaning in these cases. For instance, the extent of use and occupancy for aboriginal claims are “determined by [an Indian’s tribe’s] subsistence and spiritual needs”, Swinomish Tribe of Indians v. United States, 26 Ind.Cl.Comm. 371, 383 (1971) (emphasis added), and include extended areas in which tribes have traditionally hunted and gathered plants. Zuni Tribe of New Mexico v. United States, 12 Cl.Ct. 607, 608 (1987); San Carlos Apache Tribe of Arizona v. United States, 21 Ind.Cl.Comm. 189, 193 (1969). Significantly, some of these cases have found aboriginal title based on intermittent contact with the land. United States v. Seminole Indians of the State of Florida, 180 Ct.Cl. 375, 385 (1967); Sac v. Fox Tribe of Indians v. United States, 179 Ct.Cl. 8, 383 F.2d 991, 998 (Ct.Cl.), cert. denied, 389 U.S. 900, 88 S.Ct. 212, 19 L.Ed.2d 217 (1967); Confederated Tribes of the Warm Springs Reservation of Oregon v. United States, 177 Ct.Cl. 184, 194 (1966). While understanding traditional practices is important to determine where Hopis were located in 1934, this Court will not apply the same standard regarding the intensity of “possession, occupancy, and use” required to establish aboriginal title. The Hopi Tribe’s claims in this case are based on recognized title granted by the 1934 Act. Sekaquaptewa I, 448 F.Supp. at 1187-89. Recognized title arises where Congress has acknowledged a right to permanently occupy and use land, and the subsequent taking of that land is compensable. Miami Tribe v. United States, 146 Ct.Cl. 421, 175 F.Supp. 926, 936 (1959). In contrast, claims before the Indian Claims Commission are not based in law, but on Congress’ policy decision to provide limited compensation to Indian Tribes for the extinguishment of nonrecognized Indian title. See, Felix Cohen, Handbook of Federal Indian Law, 1982 ed., p. 492. Intermittent and non-intensive use is not sufficient to establish recognized title. In fact, the Hopi Tribe’s aboriginal claims to approximately three-quarters of the 1934 Reservation were previously adjudicated by the Indian Claims Commission; the Commission held that Hopi aboriginal claims were extinguished by the passage of the 1882 Executive Order withdrawing lands for the Hopi. Hopi Tribe v. United States, 31 Ind.Cl.Comm. 16 (1973); Hopi Tribe v. United States, 23 Ind.Cl.Comm. 277 (1970). The Hopi Tribe may not have a second chance at establishing its claims of aboriginal use to much of the 1934 Reservation. At the other end of the spectrum, the Navajo Nation urges the Court to adopt a “plain meaning” interpretation of the word “located”, and require the Hopi Tribe to demonstrate a “physical presence or existence in a place”, or “settlement”. Although the Court previously rejected the Navajo attempt to limit Hopi rights and interests to land actually occupied by the Hopi, Sekaquaptewa 1, 448 F.Supp. 1196, the Navajo Nation now extends their argument to include “those particular parcels that Hopis used regularly for residence or used regularly and intensively for subsistence purposes”. The Court finds that the use by Hopi Indians 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, since seasonal use is pervasive in Indian land use patterns, and indeed, necessary in the harsh environment of the 1934 Reservation, substantial seasonal use is sufficient for this Court to find occupation or use of the land. After the areas oh which Hopi Indians are located are identified, “Navajo interests are identifiable as the residue.” Sekaquaptewa II, 619 F.2d at 808. Thus, this Court need only address Navajo use of lands on which the Hopi Tribe has proved Hopis were “located” in 1934, in order to decide whether Hopis were “exclusively” or “jointly” located on that land. If Hopis were exclusively located on an area of land, it will become a part of the Hopi 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”. VI. Hopi claims of exclusive use area based on documentary evidence Before discussing the evidence presented at trial, the Court will address Hopi claims of an exclusive use area based on documentary evidence and aerial photographs. The Hopi Tribe claims that an 80,000 acre area depicted in Ex. 703A (with the modifications described in Hopi Proposed Finding 57) was used, occupied, and possessed by Hopis in 1934 “to the virtual exclusion of others”. The Hopis argue that certain United States government officials and members of the Navajo Nation “informally acknowledged” that the Hopis intensively used this area “or an approximately similar area” in the 1920’s and 1930’s. See 4 TT 546-65 (Dr. Godfrey). The Hopi Tribe cites Ex. 237 (Letter from C.L. Walker, Superintendent Western Navajo Indian Agency, to H.J. Hagerman, Special Commissioner of Indian Affairs, dated February 5, 1930), describing an informal agreement reached to prevent disputes between Navajo and Hopi stockmen; the Hopis were to graze out of Moenkopi Wash “as far as their stock would naturally graze from the Village” and the western edge of “the mesa” was agreed to be the western boundary. However, this letter does not explicitly state what the boundaries were and the letter notes the boundaries were not always observed by members of either Tribe. The letter does not support the conclusion that this entire area was exclusively used by Hopis. Second, Hopi expert Ronald Wright analyzed United States Soil Conservation Service (“SCS”) aerial photographs taken in 1934 (the “Fairchild aerial photographs” or “aerial photographs”) for cultural features or disturbances such as fields, corrals, structures, or trails. The Hopi Tribe contends that all of these cultural features were examined on the ground by Hopi expert Dr. Charles Adams, and that all of these cultural features were Hopi, as supported by physical evidence and testimony. However, Dr. Adams did not express an opinion regarding whether Hopi use of the area was exclusive. Dr. Adams admitted that he did not seek out Navajo sites in the area and that Mr. Hamana (a Hopi tribal employee assisting Dr. Adams) and Dr. Fritz (an anthropologist assisting Dr. Adams) did not take him to examine sites they suspected were Navajo. 8 TT 1215 (Dr. Adams). Further, Hopi counsel stated in closing: I would like to say a word on the issue of a Hopi exclusive use area. The Court may have noticed that nowhere in the Hopi Tribe trial memorandum or its opening statement, was a claim made for a particular exclusive use area, nor did Dr. Adams in his testimony make such a claim. The most Dr. Adams could do was to describe Hopi use, based upon archeological remains, but he was not in a position, nor is the Hopi Tribe, to state that there was no Navajo or Paiute use of areas at some distance from the Village. 14 TT 2113 (Mr. Scarboro). Neither the document cited nor the aerial photographs conclusively establish that this 80,000 acre area was exclusively Hopi, and the Court will therefore examine the evidence presented at trial regarding Hopi and Navajo use of the 1934 Reservation. The location of residences, farming, grazing, and other traditional uses will be evaluated. FINDINGS OF FACT I. Residence The Hopi have for centuries lived in villages located on First, Second, and Third Mesas within the 1882 Reservation. Additionally, in 1934 about 400 Hopis lived within the borders of the 1934 Reservation at the Village of Moenkopi. The Hopi Tribe also claims that Hopis had seasonal field and ranch houses outside of Moenkopi in 1934 in the areas of Moenkopi Wash, Ward Terrace, the Moenkopi Plateau, the Bakalo, the Little Bakalo, Coal Mine Mesa, and other miscellaneous areas. Because Dr. Adams indicated that Hopi residences away from the villages were usually associated with fields or corrals located at a distance from the main village, Hopi residences will be discussed with reference to Hopi farming and grazing outside of Moenkopi. The Court will note that a few Hopis resided in Tuba City in 1934: three or four employees of the Indian Service stayed in federal employee housing, and the Hopi Tribe contends that some Hopi children attended boarding school in Tuba City. However, public employment and school attendance are not activities that are sufficient to create a property interest in these areas. II. Farming The Hopi Tribe claims that Hopis farmed in seven areas in 1934: Moenkopi Wash/Kerley Valley, Reservoir Canyon, Pasture Canyon, the Moenkopi Plateau, the Bakalo, Coal Mine Mesa, and the government-administered farm. Any Navajo farming in these areas will also be addressed. 1. Moenkopi Wash/Kerley Valley Hopis farmed throughout the Moenkopi Wash/Kerley Valley in 1934. For ease of discussion, the Wash area will be divided into five sub-areas. a. Moenkopi Wash, upstream from the present Highway 264 bridge The Hopi Tribe first contends that there were four Hopi fields in 1934 along Moen-kopi Wash upstream from the present Highway 264 bridge, for about three miles. (Quad 71, plots 20, 21, 30, and Adams’ Site 152). Hopi lay and expert testimony supports this contention. Although the Navajo Nation argues that government documents establish that these fields were not in cultivation in 1936, the testimony of the Hopi witnesses was uncontradicted that the fields were cultivated in 1934. The Navajo Nation did not present any evidence of Navajos farming in this area. The Court finds that Quad 71, plots 20, 21, 30, and Adams Site 152 were farmed by Hopis in 1934, and that no Navajos farmed in this area. b. Moenkopi Wash, downstream from the present Highway 264 bridge to the Government Farm The Hopi Tribe claims that Hopis farmed all the cultivatable land in this area (including Quad 71, plots 11, 12, 12.1, 12.2, 12.3, 12.4, 12.5, 12.6, 12.7, 12.8, 12.11 and 12.13), except for a few acres within Navajo allotted lands which were farmed by Navajos. The Hopi Tribe introduced testimony that this area was farmed by Hopis, although the testimony was not referenced by plot number. Numerous government documents also confirm Hopi farming in this area. The Navajo Nation agrees that Hopis farmed Quad 71 plots 11, 12.0, 12.5 (the northern half), 12.8 (the southern portion), and 12.11 (the eastern half). However, the Navajo Nation contends that all other plots are allotted tracts, and excluded from the determination of Hopi interests. The Navajo Nation has admitted that any Navajo farming in this area is on allotted land, which is excluded from litigation. The exact location of the allotments will be determined in the partition proceedings. The Court therefore finds that this area, excepting Navajo patented allotments which are excluded from litigation, was farmed exclusively by Hopis. c. Southside of Moenkopi Wash between Moenkopi Village and the “old Hopi bridge” at the western end of Kerley Valley The Hopi Tribe claims that there were numerous Hopi fields in this area (Quad 71, plots 13 and 14; Quad 19, plots 3, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.8), and that no Navajos farmed on the south side of Moenkopi Wash.' The Navajo Nation agrees that Hopis farmed plots 13 and 14 in Quad 71, but argues that most of the area in these plots was located on allotted land. As discussed previously, the exact location of the allotments will be determined in the partition proceedings. That land not located on allotments was farmed exclusively by Hopis. As to the remaining plots, there was substantial testimony that Hopis farmed extensively in this area. This testimony was not contradicted by the Navajo Nation. The Navajo Nation does claim that Navajos farmed south of the wash, however, including Joe Willie (Camp 297), Elvin Nez (Camp 276), and Louise Skacy (Camp 168). The Court finds that none of these Camps farmed south of the wash in 1934, and that this area south of the wash was farmed exclusively by Hopis. d. North ofMoenkopi Wash and south of the old Tuba City-Cameron Road, between the Government Farm on the east and the old Hopi bridge on the west Both parties agree that Hopis and Navajos farmed in Quad 19, though disagree where each farmed. The area in dispute is labelled “A” through “M” on Hopi Attachment 1 to its response to the Navajo Proposed Findings. First, the parties do agree on the use of a few areas. The Navajo Nation concedes that Hopis farmed in areas “E” and “H”. Further, the Hopi Tribe concedes that Navajos were farming areas “A”, “B”, “F”, “G”, “J”, and “M” (plots 1.1, 1.8A, and 1.9 on the SCS maps). Much of area “C” is in dispute: both Tribes contend they used plots 1.8B. 1.8C, and 1.8D. However, no witness was able to accurately estimate the location of the various farms or estimate acreage used by either Tribe, and the Court finds that this area was jointly used. Further, the parties dispute whether areas “D” and “K” were used by Navajos; although the Hopi Tribe does not claim that Hopis farmed in these areas, a Hopi witness testified that they were uncultivated and covered by greasewood in 1934, and there is no documentation of Navajo use. The Court finds that areas “D” and “K” were uncultivated in 1934. The Court finds that the area north of Moenkopi Wash and south of the old Tuba City-Cameron Road, between the Government Farm on the east and the old Hopi bridge on the west, was jointly used by Navajos and Hopis in 1934. e. Kerley Valley, north of the old Tuba City-Cameron Road The Hopi Tribe claims that Hopis farmed just west of Kerley’s Trading Post in Quad 19, plot 1.6 and 1.8. The Navajo Nation contends that plot 1.6 was not under cultivation in 1934, and that a Navajo farmed plot 1.8. Also, the Navajo Nation contends that Navajos farmed plots 1.10, 1.5, and 1.4 (which the Hopis contest), but the Hopi Tribe concedes that Navajos farmed plots 1.6e and 1.9. The Hopi Tribe introduced substantial testimony that Hopis farmed plot 1.6 in 1934. Further, the evidence indicates that plots 1.8, 1.4, 1.5, and 1.10 were farmed by Navajos. Due to the established presence of both Navajo and Hopi farms in this area, the Court finds that the area was used jointly. 2. Reservoir Canyon, south of the reservoirs and northeast of Moenkopi Village The Hopi Tribe claims that Hopis farmed Quad 71, plots 19, 28, and 29, and that no Navajos farmed in this area. The Navajo Nation does not contest this assertion. The Court finds that Reservoir Canyon is a Hopi exclusive use area. 3. Pasture Canyon, north of the reservoirs and south of the Government Pasture The Hopi Tribe contends that Hopis farmed quad 71, plots 14, 15, and 16. The Navajo Nation agrees that Hopis farmed 18 acres in Pasture Canyon. Although the Navajo Nation does not contend that Navajos farmed in this area, the Navajo Nation contends that Navajos used this area for other grazing. Grazing will be addressed later in this order. The Court finds that only Hopis used Pasture Canyon for farming. 4. Moenkopi Plateau The Hopi Tribe contends that Hopis farmed at Quad 71, plots 1, 10, and 22 on the central Moenkopi Plateau above “Owl’s Cap”. The Navajo Nation disputes that these plots were farmed in 1934, since the LMU3 Agronomy Report indicated that these plots were idle by 1936. However, the Hopi Tribe introduced substantial testimony that these plots were being farmed in 1934. The Hopi Tribe also argues that no Navajos farmed on the Moenkopi Plateau. However, the Navajo Nation has introduced sufficient evidence that Navajos farmed Quad 70, plots 1 and 2. This area is located south of the Hopi claimed exclusive use area. The Navajo Nation also claims this area was used extensively for other uses, such as grazing, which will be addressed in a later section of this order. The Court finds that the central Moenko-pi Plateau above Owl’s Cap was farmed exclusively by Hopis, and that the southern Moenkopi Plateau, south of the Hopi claimed exclusive use area, was farmed exclusively by Navajos. 5.The Bakalo, or Hollow Place The Hopi Tribe argues that Hopis farmed Quad 71, plots 2, 6, 7, 8, 9, and 24. Although the Navajo Nation concedes that plot 2 (35 acres), plot 8 (1 acre), and plot 9 (1 acre) were Hopi farms, it argues that plots 6 and 7 and some of plot 2 were shown as idle in the 1936 LMU3 Agronomy Report, indicating that these fields were not in cultivation in 1934. However, the Hopi Tribe introduced sufficient testimony to conclude that all of these plots were under cultivation. This testimony was corroborated by expert findings. The existence of these fields was revealed in the 1934 aerial photographs. The Navajo Nation also argues that plot 24 was farmed by a Navajo named Tohan-nie. The LMU3 Agronomy Report lists him as the owner of this plot, and Dr. Godfrey testified that he did not know who farmed this plot in 1934. However, the Hopi Tribe argues that plot 24 was farmed by Tom Holmes and his three sons, Willard and Ernest Holmes and Edward Honeyes-tewa (Adams Site 136), and that other testimony indicated that the listing of “Tohan-nie” as the owner of this plot must have been a mistake. The Court finds that the Bakalo (Hollow Place) was exclusively farmed by the Hopis. 6. Coal Mine Mesa The Hopi Tribe contends that Hopis farmed Quad 71, plots 3, 4, 5, and 31, and that no Navajos farmed in this area. Although the Navajo Nation agrees that Hopis farmed 9-acres in plot 31 in the southern portion of Coal Mine Mesa, the Navajo Nation claims that the other plots were no longer under cultivation in 1934. Dr. Adams testified that the Hopis he interviewed indicated that the Nanmuru area became too dry in the late 1920’s and that the fields were not in use in 1934. Also, Gordon Page’s 1939 Human Dependency Study found tract nos. 3, 4, and 5 to be idle. The Court finds that only field 31 was under cultivation in 1934. The Navajo Nation admits that no Navajos farmed in this area, though it contends Navajos grazed livestock in this area. Other uses will be addressed in a later section. The Court finds that only Hopis farmed on Coal Mine Mesa in 1934, as indicated above. 7. Government-administered Farm Land In 1934, the Indian Service administered two tracts of land by Moenkopi/Tuba City for the benefit of the Tuba City Boarding School, which was attended by Navajo and Hopi children. The Hopi Tribe contends that Hopis worked on the “Government Farm” depicted on Ex. 707, Attachment 1 and Ex. 3571, and the “Government Pasture” in Pasture Canyon, depicted on Ex. 707, Attachment 2. The Hopi Tribe also contends that after 1934 these lands were relinquished to individual Navajo and Hopi farmers. Public employment on government lands is not sufficient to establish that the Hopi Tribe had a property interest in this land in 1934. In fact, Hopi witnesses testified that in 1934, no Hopis used the government land. III. Grazing The Hopi Tribe claims an interest in 1.25 million acres of land it argues was used by Hopi livestock in 1934. Hopi grazing practices were traditionally influenced by cultural and religious practices: the distances Hopis would go from the village to tend their livestock or for other purposes was in general limited by the preference of the Hopis to return to their village before dark every evening. However, the establishment of herding cooperatives, where one member would remain with the livestock overnight rather than returning to the village, allowed herding sites farther from the village. The Hopi Tribe contends that Hopis tended to herd sheep and goats within a 15-mile radius from the villages. The Hopis claim that outlying corrals, water sources, camps and ranch houses support the claims of more distant sheep ranges utilized by sheep cooperatives, and that sheep were typically herded from 2-6 miles from these corrals. The Navajo Nation argues the Hopi Tribe overestimates the distance that sheep would graze from the village, and instead asserts that sheep grazed in a 2-4 mile radius around each corral, all of which were within a couple of miles from the village. The Court will examine the evidence regarding the existence of Hopi sheep corrals and/or field houses to determine how far the Hopis grazed sheep from the village. The Hopi generally permitted cattle to graze freely over the unfenced range in search of forage and water. Cattle were permitted to wander unsupervised, although they were occasionally driven back toward the village and were rounded up once a year. The existence of cattle cooperatives allowed some Hopis more active management of cattle. Horses were either kept close to the villages, or were allowed to graze with the cattle. In 1937, the SCS determined that Hopis residing at Moenkopi owned 893 sheep and goats, 403 cattle and 106 horses, for a total of about 3,000 sheep units. Earlier studies showed a lower sheep unit count. Although the number of animals will not determine the amount of land used, it is indicative of the intensity of grazing by Hopis. The SCS also found that Hopi livestock shared a range of about 70,000 acres with Navajo livestock. There are inadequacies in the SCS information in determining grazing patterns in 1934, partly due to the fact that most of the SCS studies were conducted after 1934: the SCS studied range conditions in 1936-1937, and did not study livestock and range use until 1937-1940. Further, the original 1936-1937 LMU3 data on Hopi livestock holdings and the LMU3 Human Dependency Survey Schedules have been lost and were not available for trial. Although the Hopi Tribe contends that range use patterns, water sources, and livestock numbers had changed significantly since 1934, the Hopi Tribe admits there is no direct evidence that Hopi livestock was reduced in the government’s livestock reduction program after 1934. Unless reliable evidence contradicts the information provided in the SCS studies, such as forceful testimony regarding use in 1934, the Court will accept the findings of the SCS. The Navajo Nation argues that the maps introduced by the Hopi Tribe to demonstrate the Hopi grazing areas do not reflect the intensity of livestock use in the area, and thus are not a fair representation of Hopi use. Further, Dr. Godfrey added an extra ten miles beyond points mentioned in historical accounts to estimate grazing areas, and admitted the maps were only “general” and did not represent actual grazing areas. Dr. Ainsworth also admitted his map depicted only a general area. Further, the Navajo Nation contends that Dr. McCawley’s estimates of grazing areas are not accurate because he did not take into account competing Navajo livestock, did not evaluate water and forage around Moenkopi, and did not estimate frequency of use. The Court will not adopt the maps of the Hopi experts as actual representations of Hopi grazing areas in 1934, but as visual representations of the expert opinions. The Court will examine the testimonial, archeological, and documentary evidence regarding Hopi grazing east of the 1882 Reservation, south of the 1882 Reservation, and west of the 1882 Reservation in several areas, including Pasture Canyon, Ward Terrace, the western and northern Moenko-pi Plateau, the southern and central Moen-kopi Plateau, the Bakalo (or Hollow Place), the Little Bakalo, Coal Mine Mesa, Moenko-pi Wash/Kerley Valley, and other areas north of Moenkopi Wash. A. East of the 1882 Reservation The Hopi Tribe contends that Hopis from First Mesa used about 130,000 acres in this area, citing various historical documents in support of the assertion. However, none of these documents establish that Hopis grazed east of the 1882 Reservation. In fact, SCS investigations in the mid-1930’s found no significant use by Hopi livestock for LMUs 10 and 17, which extend over-the area east of the 1882 Reservation. Moreover, two Navajos who lived along the eastern boundary testified that they did not see Hopis herding east of the 1882 Reservation in the 1930’s. Because the Hopi Tribe failed to introduce any testimony corroborating Hopi grazing east of the 1882 Reservation boundaries, and government documents do not establish that Hopis grazed east of the border, the Court finds that the Hopi Tribe was not “located” east of the 1882 Reservation in 1934. B. South of the 1882 Reservation The Hopi Tribe contends that Hopis from First, Second, and Third Mesas used a range of 425,000 acres south of the 1882 Reservation, when Hopi cattle grazed south along the drainages to lower elevations in the winter. Further, the Hopi Tribe claims that First Mesa Hopis grazed horses in the Hopi Buttes area around Cedar Springs year-round. The Hopi Tribe again offers various historical documents in support of this claim. These documents do not prove that Hopi cattle grazed south of the 1882 Reservation. The Hopi Tribe also introduced the deposition of Reuben Lomayesva, who described his family’s herding in the area around the southern border. However, his family lived at Shonto Springs seven miles north of the border, and he personally never went south of the 1882 Reservation boundary, so his testimony was not based on first-hand knowledge. Further, the Hopi expert testimony, largely based on the documents cited earlier, did not establish by a preponderance of the evidence that grazing occurred south of the 1882 Reservation. Moreover, Navajo testimony contradicted the Hopi claim that Hopi livestock was grazing south of the 1882 Reservation. The Court concludes that Hopi livestock did not graze south of the 1882 Reservation in 1934. C. West of the 1882 Reservation: The Hopi Tribe contends that Moenkopi Hopis used about 700,000 acres west of the 1882 Reservation for grazing. The Tribe claims that Hopis herded on the Kaibito Plateau north of the Moenkopi Wash, on the northern ends of Moenkopi Plateau, Coal Mine Mesa, and south of Moenkopi Wash throughout the rest of the area, including Ward Terrace. The Hopi Tribe also contends that cattle owned by Third Mesa Hopis grazed west of the 1882 Reservation, in the southern part of the area. The Navajo Nation, in general, argues that the area of use is greatly exaggerated, since the Moenkopi Hopis had approximately 3,000 sheep units of livestock, which would have allocated over 230 acres per Hopi sheep unit, “a preposterous assertion in view of the intensive use of the area by Navajos.” Also, the Navajo Nation argues that use of such an extensive area would have been sporadic and irregular, and that cattle were permitted to drift unsupervised. The Court will examine both Hopi and Navajo grazing in nine areas: Pasture Canyon, Ward Terrace, western and northern Moenkopi Plateau, southern and central Moenkopi Plateau, the Bakalo (or Hollow Place), the Little Bakalo, Coal Mine Mesa, Moenkopi Wash/Kerley Valley, and areas north of Moenkopi Wash. 1. Pasture Canyon The Hopi Tribe introduced testimony and documentation that Hopis were grazing in and around Pasture Canyon. Although a Navajo testified that he did not see Hopis grazing east of Pasture Canyon in the 1930’s, the preponderance of the evidence reflects that at least two Hopi outfits grazed their livestock in Pasture Canyon in 1934. The evidence shows that Navajos were grazing in and around Pasture Canyon as well. Dr. Russell’s investigation revealed a number of Navajo Camps which had lived or herded inside Pasture Canyon. The Court finds that Camps 11, 96, 123, 172, 178 and 229 grazed in or around Pasture Canyon in 1934; Camp 14 did not. The Navajo Nation also claims other camps brought their stock into Pasture Canyon for water, including Camp 41 (Sa-ganitso), Camp 106 (S. Begody), Camp 123 (Bancroft), Camp 139 (F. Begody), Camp 149 (Begay), and Camp 166 (Chief). However, these camps all resided and herded in other areas, and will be considered elsewhere. The Court finds that Pasture Canyon was jointly used by Hopis and Navajos in 1934. 2. Ward Terrace The Hopi Tribe claims that Ward Terrace was used by a number of Hopis in 1934. The Court finds that the Dallas and the Humetewa brothers used this area, as evidenced by testimony and government documents. This renders plausible the testimony of several Navajos that they did not see Hopis below Tonali on Ward Terrace during the mid-1930’s, because there were a limited number of Hopis in the area. Navajos also grazed their livestock in the Ward Terrace area. Dr. Russell’s investigation revealed four Navajo Camps on Ward Terrace. The court finds that Camps 13 (at Site 3-48) and 168 grazed their livestock in the area; Camps 49 and 170 did not graze on Ward Terrace. The Court finds that Navajos and Hopis jointly grazed throughout the Ward Terrace area in 1934. 3. Western and northern Moenkopi Plateau The Hopi Tribe claims that numerous Hopis grazed their livestock on the western and northern Moenkopi Plateau. The evidence clearly supports this conclusion. There is also documentary and testimonial evidence that Navajos grazed in this area. Dr. Russell’s investigation revealed numerous Navajo Camps using this area in 1934. The Court finds that Camps 13, 15, 36, 44, 63, 168, 171, 173 (at 96, 124, Sites 3-78, 3-41, 3-70, and 3-75), 185, 189, 238, and 273 (as to a grazing area outside Site 3-55), grazed on the northern or western Moenkopi Plateau in 1934, and that Camps 82, 85, 144, and 299 did not. 4. Southern and Central Moenkopi Plateau The Hopi Tribe introduced substantial evidence that the central and southern areas of Moenkopi Plateau was grazed by Hopi livestock. Although the Navajo Nation argues there is no credible evidence that Moenkopi Hopis grazed south of the Buck Pasture northern fence, the Court finds that Hopis grazed throughout Buck Pasture to Hukvahklo in 1934. There is not sufficient evidence to conclude that Hopis from the 1882 Reservation were grazing on the southern Moenkopi Plateau. Navajos grazed on the southern Moenko-pi Plateau as well, as is implicit in the Hopi Tribe’s exclusion of areas south of Buck Pasture, such as Goldtooth, from its claimed exclusive area. The Court finds that Navajos did not graze north of the claimed Hopi exclusive area border. The Court finds that the central and southern Moenkopi Plateau to the border of the claimed Hopi exclusive area was exclusively used by Hopis in 1934; the area south of that border to Hukvahklo was jointly used in 1934. 5. The Bakalo (or Hollow Place) There is evidence that Hopis grazed in the Bakalo, and the Navajo Nation admits Hopis farmed in this area. Navajos also used the area for grazing. The Court finds the Bakalo was jointly used. 6. The Little Bakalo Although there was limited testimony that Hopis used this area in 1934, the preponderance of the evidence shows that Hopis did not use this area for grazing until 1935. Other evidence reflects that Navajos used this area for grazing in 1934. 7. Coal Mine Mesa The Hopi Tribe introduced substantial evidence that Hopi livestock grazed in the Coal Mine Mesa area in 1934. The Navajo Nation argues that Hopis were confined to the southwestern portion of Coal Mine Mesa, but the evidence shows that Hopis grazed in other areas as well, including “around the sand dunes” at Nanmuru. It is also clear from the evidence that Navajos grazed livestock in the Coal Mine Mesa area. Dr. Russell’s investigation revealed a number of Navajo Camps in this area. The Court finds Camps 123 and 125 grazed in this area, and that Camps 41 and 60 did not. The Court finds that Coal Mine Mesa was jointly used. 8. Moenkopi Wash/Kerley Valley The preponderance of the evidence supports a finding that both Hopis and Navajos grazed in the Moenkopi Wash/Kerley Valley area, east of the Village of Moenko-pi. There was testimony that Hopis primarily grazed southeast and east of the Village, and that Navajos primarily grazed east and northeast of the Village from the Standing Big Tree area (Camps 44, 173, and 242). 9. North of Moenkopi Wash The Hopi Tribe introduced limited testimony that Hopis grazed their livestock north of Moenkopi Wash, including around Red Lake, Middle Mesa, and Wildcat Peak. However, no government document of the period mentions Hopi grazing in this area, and Navajo testimony showed there was little, if any, Hopi grazing here. The Court finds that Hopis did not graze their livestock north of Moenkopi Wash (except in Pasture Canyon, as previously discussed). IV. Other Hopi Uses The Hopi Tribe also claims an interest in the 1934 Reservation based on the location of traditional Hopi activities, such as eagle gathering, visiting shrines, gathering ceremonial plants, ceremonial hunting, gathering edible plants and pinon nuts, gathering medicines, collecting plant materials for tools and crafts, gathering fuelwood and construction wood, subsistence hunting, and mineral gathering. Religious activities The Hopi Tribe explains that for centuries, the gathering of live young eagles has been a fundamental aspect of Hopi religious life. Eagle gathering is conducted annually in the spring. Preliminary trips to check on the eagle nests are made; eaglets are then gathered live when they are at the appropriate age. Offerings are made at eagle shrines within the gathering areas, and the eaglets are transported back to the Hopi villages where they are cared for as members of the clan of the eagle gatherers until midsummer when they are sacrificed. The eagle gathering areas are divided among Hopi clans, generally on the basis of the route taken by the group during its migration to the Hopi mesas. Expert and lay testimony and historical documents were introduced regarding the practice of eagle gathering and the areas in which eagles were gathered. The Hopi Tribe also claims rights to the 1934 Reservation based on the existence of religious shrines and sacred places throughout the Reservation. These shrines are particular locations visited in connection with religious ritual, and are generally marked by rock cairns, petro-glyphs, or hidden depositories for offerings. Religious leaders make pilgrimages seasonally, annually, or periodically in connection with certain events. There were substantial expert and lay testimony and historical documents introduced demonstrating the importance of these shrines to the Hopi people and the location of some of these shrines. Further, Hopis gathered plant materials, such as fir boughs and wild tobacco, for use in annual ceremonies. The plants gathered, their locations, and the journeys to gather the plants have religious significance. Hopis also hunted rabbits, foxes, coyotes, and deer for ceremonial purposes. 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 after partition. That section states: 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. Given that access to religious shrines will be protected, the Hopi Tribe cannot persuasively argue that their presence gives the Hopi Tribe a property interest as such in the 1934 Reservation. Further, this Court has previously held that religious interests in land held in trust for another Indian Tribe do not create a property interest in that land. In Manybeads v. United States, 730 F.Supp. 1515 (D.Ariz.1989) (appeal pending), this Court held that individual Navajos did not have a First Amendment right to remain on property held in trust by the United States for the Hopi Tribe. This holding was dictated by the opinion in Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988), in which the Supreme Court had held that, in essence, “[t]he nature of the religious rights claimed cannot create a de facto beneficial ownership of public (or private) property, in order to practice ones religion.” Manybeads v. United States, 730 F.Supp. at 1517; see also, Attakai v. United States, 746 F.Supp. 1395 (D.Ariz.1990). The Hopi Tribe does not contend that it derives an interest in the 1934 Reservation due to the First Amendment rights or religious interests per se. Instead, the property interest claimed by the Hopi Tribe results from the “occupation, use and possession” for religious purposes of Hopi Indians on the 1934 Reservation. However, a holding that religious use is sufficient to create a property interest for the Hopi Tribe (and thus divest the Navajo Nation of its “residual” property interest in the 1934 Reservation) would directly contradict Lyng. Thus, the Hopi Tribe claims in the 1934 Reservation based on the eagle gathering activities, visiting shrines, and gathering of ceremonial plants and animals are not sufficient “occupation, use and possession” to establish a property interest for exclusive use or partition purposes. Further, the Hopi Tribe has not demonstrated that these activities were of the intensive nature necessary to create a property interest under the Act. Eagle gathering occurred only once a year, with only a small number of men involved. The Hopi Tribe failed to demonstrate that a substantial number of Hopis travelled to shrines outside of the immediate vicinity of the Hopi villages in the 1930’s, and many of the shrines are often only known to a small number of Hopis. Moreover, the evidence presented at trial reflects that ceremonial plant gathering was sporadic and at irregular intervals, and that most gathering occurred around the vicinity Moenkopi, off-reservation at San Francisco Peaks, or inside the 1882 Reservation. Ceremonial hunting was also not of the intensive nature necessary to create a property interest. By 1930, Moenkopi Hopis were no longer hunting foxes and coyotes, and deer were almost extinct in LMU3. Non-religious activities Hopis gathered various edible plants to add to their diet in 1934, including greens, herbs, vegetables, fruits, seeds and berries. A number of witnesses testified regarding where plants were gathered. However, Hopi plant gathering outside the immediate vicinity of Moenkopi was not sufficiently intensive to give rise to a property interest: the evidence shows that most of the plant gathering took place close to Moenkopi and that gathering outside of this area was irregular and often depended on where a person was traveling. Also, Hopis gathered pinon nuts annually to supplement their diet. However, the gathering of pinon nuts is not sufficient to create a property interest: they were generally gathered only once a year, and because pinons ripen in an area only once every five to seven years, Hopis went to different places every year. Further, Dr. Ainsworth admitted that pinon nuts were rarely found and “unusual” in the Hopi diet. The Hopi Tribe also contends that Hopis gathered medicinal plants circa 1934. Again, this practice is not sufficient to create a property interest in the area. The Hopis also collected materials for tools and crafts, including reeds, grasses, and yucca to make baskets, plaques, and bridal “suitcases”. Weaving tools, hunting sticks, and bows and arrows were made from oak, mountain mahogany, ironwood, and greasewood, and kachina (or “katsina”) figures and other ritual objects were made from cottonwood roots. Again, the evidence demonstrates that this use was not sufficiently intensive to create a property interest. Bows and arrows were no longer used for hunting in 1934, but for gifts, and some tourist trade. Yucca was only gathered in the spring, generally within 3 miles of Moenkopi, and cottonwood was generally “fished” out of streams after storms, rather than cut down. The Hopis also gathered firewood for cooking and heating at great distances from their villages, since firewood had become scarce within the Reservation by 1934. However, it appears from the evidence that wood gathering inside the 1934 Reservation was waning in 1934, and that most took place in the 1882 Reservation. Further, Hopis often used alternative forms of fuel, such as brush, greasewood, and corncobs from Hopi fields. The Hopis also gathered construction wood to build their homes, kivas, and corrals. Again, the evidence shows that most wood was not obtained on the 1934 Reservation due to the severe depletion, but in the Flagstaff/San Francisco Peaks area. The limited wood gathering that occurred is not sufficient to create a property interest in the 1934 Reservation. The Hopis also hunted small game for subsistence, including rabbits, squirrels, prairie dogs, and quail. Evidence indicates, however, that by 1934, rabbits were the only wild game hunted by the Hopis, and many rabbits were found in the Moen-kopi vicinity. Finally, the Hopi Tribe also claims that Hopis gathered mineral resources, such as stone, coal, clay, and pigments for construction, fuel, tools, and religious uses. However, the Hopi Tribe did not demonstrate that Hopis went out of the Moenkopi area to gather such materials with any regularity. Dr. Ainsworth admitted on cross-examination that he did not intend that all of the area indicated on his maps were used by Hopis for these purposes; the maps do not indicate specific areas of use, but only broad general areas representing use. Dr. Ainsworth’s testimony is therefore not sufficient to establish how intensive any of the above uses were in 1934, and the Hopi Tribe may not assert rights and interest in the 1934 Reservation on that basis. 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”), 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 Hopi Indians. Certain lands within the boundaries of the 1934 Reservation are excluded from litigation and thus not subject to the claims of the Hopi 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 has not been established; in Phase II of this litigation regarding partition, the parties will have the opportunity to present evidence regarding the location of these lands. 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 Hopi claims. The Court finds that in order to meet the statutory criterion of “already located thereon”, the occupation, possession, and use by Hopi 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 gathering of eagles, visitation of shrines, and gathering plants and animals for religious purposes do not give rise to a property right under the 1934 Act. The Hopi Tribe’s privilege of access to such shrines is protected by 25 U.S.C. § 640d-20. The burden of proof is on the Hopi Tribe to demonstrate where Hopi Indians were “located” in 1934, although less stringent than in ordinary civil proceedings, due to the passage of more than fifty years between the events to be proved and trial and the lack of a written Hopi 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 Hopi Indians are located are identified, “Navajo interests are identifiable as the residue.” Sekaquaptewa II, 619 F.2d at 808. Thus, this Court need only address Navajo use of lands on which the Hopi Tribe has proved Hopis were “located” in 1934, in order to decide whether Hopis were “exclusively” or “jointly” located on that land. 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. The Hopi Indians were exclusively located in the following area: (1) the Village of Moenkopi, (2) Moenkopi Wash/Kerley Valley in the areas designated as upstream from the present Highway 264 bridge, downstream from the present Highway 264 bridge (except Navajo patented allotments), and south of the Wash between Moenkopi and the “old Hopi bridge” at the western end of Kerley Valley, (3) the grazing areas south and southeast of Moenkopi (south of the Wash), (4) Reservoir Canyon, and (5) the central/southern Moenkopi Plateau to the southern border of the claimed Hopi exclusive use area, marked on Exhibit 703A (and not including the Bakalo or Little Bak-alo). The specific areas are detailed in the Findings, above, and a map is attached depicting these areas. 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 shall 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. Pursuant to 25 U.S.C. § 640d-16, nothing in this action affects the title, possession, and enjoyment of lands heretofore allotted and patented to individual Indians. Any Navajo individuals residing on such allotments within the area determined to be exclusively Hopi (or within that area partitioned to the Hopi Tribe in later proceedings) shall be subject to the jurisdiction of the Hopi Tribe. Similarly, any Hopi individuals residing on such allotments within the area determined to be exclusively Navajo (or within the area partitioned to the Navajo Nation in later proceedings) shall be subject to the jurisdiction of the Navajo Nation. The lands jointly used by Navajos and Hopis in 1934 are subject to partition in the second phase of trial proceedings. Navajo and Hopi Indians were jointly located in the following areas:' (1) Moenkopi Wash/Ker-ley Valley in the areas designated as north of the Wash and south of the old Tuba City-Cameron road, between the government farm on the east and the old Hopi bridge on the west, and north of the old Tuba City-Cameron road, (2) the grazing areas east of Moenkopi (north of the Wash), (3) Pasture Canyon, (4) southern Moenkopi Plateau, south of the Hopi exclusive area border, depicted on Ex. 703A, throughout Buck Pasture to Hukvahklo, (5) the Bakalo, (6) Coal Mine Mesa, (7) Ward Terrace, and (8) the western and northern Moenkopi Plateau. The specific areas are detailed in the Findings, above, and a map is attached depicting these areas. The Navajo Nation, subject to Paiute claims, and for the use and benefit of its individual members, has an exclusive interest in both the surface and subsurface estate of lands, subject to the paramount title of the United States, outside the Hopi exclusive area and not subject to partition. In the partition phase of these proceedings, the Court will receive and consider all relevant evidence, and enter findings and conclusions, relating to division of property found to be jointly occupied in 1934. ORDER AMENDING FINDINGS OF FACT On April 27,1992, this Court issued Findings of Fact and Conclusions of Law (“Findings”) regarding Hopi claims to the 1934 Reservation. On May 22, 1992, the Hopi Tribe and Navajo Nation filed simultaneous briefs and maps regarding their interpretations of the Court’s Findings with regard to specific boundaries for the area found to have been exclusively used by Hopis in 1934 and the area found to have been exclusively used by Hopis in 1934 and the area jointly used by Navajos and Hopis in 1934. Although this Order will not delineate the specific boundaries for the “exclusive” and “joint use” areas, the Order will address the few areas in which there were wide differences between the Hopi and Navajo interpretations in order to narrow the issues for trial. These areas include: (1) the area between Ward Terrace, Highway 89, and the Little Colorado River, (2) southern Ward Terrace, and (3) the Moenkopi Plateau south of Buck Pasture and Hukvahklo (Windy Tank). (1) The area between Ward Terrace, Highway 89 and the Little Colorado River In its interpretation of the Court’s Findings regarding grazing on Ward Terrace, the Hopi Tribe included an area bounded by Ward Terrace on