Full opinion text
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 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. 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.” 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 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), (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”), affd 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. 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 in the 1860’s. 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. The Navajo Nation argues that only 30 people were members of the southern group. The Court 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. Witness testimony and government documents 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. 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, 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). 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. 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. The Navajo Nation argues in turn that the Paiutes failed to establish that Paiute fields existed in 1934, and that Navajos farmed in the Cedar Ridge area in 1934. 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 (Hookwamu-kawnich) in 1934. The Navajo Nation argues that the only proven Paiute farming did not continue past the mid-1930’s. 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. 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. 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. The Paiute Tribe claims that the northern group consisted of 43 people. The Navajo Nation contends that only 38 people were members of this northern group. 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. The Navajo Nation argues that there is contradictory evidence of the location of the field, and government documents do not mention Paiute farming on the Rainbow Plateau. 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, lay testimony, and government documents. 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, while the Navajo Nation argues that the Paiutes farmed only 26.84 acres in 1934. 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, 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 field l. The Paiute Tribe argues that there were only eight Navajos farming in field area l. This Court accepts the SCS findings that eleven Navajos and one Paiute were farming SCS field l. 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 Vi2 of that field. SCS field 1.3 (Franklin field area 2): The Paiute Tribe contends that field 1.3 was used exclusively by Paiutes. The Navajo Nation agrees that Lester Willet-son, farmed in SCS field 1.3, but argues that two Navajos (Sid Whiskers (“Dagah”) and Hosteen Altsoii sie igi) also farmed in this field. 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. 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 tenure. The Navajo Nation did not contradict Dr. Franklin’s testimony that field 1.3 was controlled by the Paiute Dick ambi-lineage. 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. The Court finds that SCS field 1.3 was farmed exclusively by Paiutes in 1934. SCS field, 14 (Franklin field area 3): The Paiute Tribe argues this field area was farmed exclusively by Paiutes. The Navajo Nation argues that SCS field 1.4 (Franklin field area 3) was farmed by one Navajo and one Paiute (Lester Wiliti-son [sic] and Wola ghi), as reflected on the LMU2 Agronomy Report. However, there was no evidence that Wola ghi was Navajo. 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. The Paiute Tribe contends that field 1.5 was uncultivated in 1934, and was within the control of Paiutes. 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. The Navajo Nation responds that SCS field 2 was farmed by one Paiute and two Navajos (Gwi ja jah, Dugali [Dagah], and Yellow Salt). However, there is evidence that this field was under the control of the Paiute ambilineage system. Dugali (Da-gah, or Sid Whiskers) was married to Mercy Whiskers, and obtained no property interest in the land through the Paiute land tenure system. 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. 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. The Navajo Nation argues that SCS field 2.1 was farmed by three Paiutes and three Navajos. 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. The Paiute Tribe agrees that this area was farmed by Navajos in 1934, but argues that one of the four plots within this field was jointly farmed by Sid Whiskers (Da-gah) and his wife Mercy Whiskers. The Court finds that SCS field 3 was occupied by Navajos and Paiutes in 1934, and that the Paiute Tribe has an interest in Vs 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. The Navajo Nation argues that Franklin field area 8 was not in existence in 1934. 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. The Paiutes also claim they had additional residences sites in Paiute Canyon downstream (north) from the field areas. Although the Navajos agree that Paiute residences were located next to field areas, they disagree that Paiutes had residences downstream from the field areas. 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 1 Acreage 37 Paiute Acreage 3.08 Navajo Acreage 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 SCS fields 1.1, 1.2, 9, 10, 11, and 12 were created between 1935 and 1937, 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. 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. 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; (3) she added herds for Paiutes who had not been listed as owning sheep and goats on any government livestock census or per-mittee list; and (4) she failed to recognize that people who dipped livestock for others were often listed as owning those livestock. 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. In fact, the Paiute Tribe argues that government documents demonstrate that the smaller owners were hit harder than larger owners. 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. Other documents show Connie Yazzie with a sheep herd, and Blanche Preston, a Navajo, testified that she saw Yazzie grazing sheep in 1934. 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. This information was generally corroborated by Paiute witness Blue Lee. 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 (Kaa-vich), 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 (Hook-wamukwánich). “Atatsiv” means sand or sandy area in Paiute. 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. 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), 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. 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 The Navajo Nation responds that Paiute grazing was limited to an area covering a few hundred acres 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. The Navajos agree that Paiutes watered their livestock at Willow Springs, and grazed their livestock southeast of Black Peak during the winter. 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 (Turukwiokwich), to Aayux-wich (no English translation), and to Willow Springs to water livestock. 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. 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-l, 3, 4, 6, 9, 17, 18, and 21, depicted on Ex. 1415.12. The Navajos argue that most of these sites were not used in 1934. The Court finds Sites S-l 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. Although Lee testified that he saw Lehi and Yazzie grazing sheep at Aayuxwich (around Site S-l), 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. Finally, the Paiute Tribe claims that there was a large area northwest of Atat-siv used by the Lee and Casey families for grazing livestock, which was used sporadically during the 1930’s, possibly in 1934. 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. The area outside of this intensive area was used less regularly. The Navajos argue that the small number of Paiute livestock could not have possibly grazed “intensively” over this large area. Further, Blue Lee, who was responsible for the entire common herd, testified that he returned home every night with the herd. The Navajos argue that because sheep are typically herded two or three miles at most from their corral in the summer, the herding area was restricted around the Willow Springs corrals. However, this ignores the use of Sites S-l and S-4. The Navajo Nation further contends that the government documents cited by Dr. Bunte do not support her opinion, 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. 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-l 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. 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. Further, Dr. Bunte testified that Blanche Preston had Paiute “permission” to use the area, who testified at trial that no such arrangement existed. 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. 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. Other government documents also recorded Navajo presence in the area. 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 Kaibi-to Plateau. Even if a conservative grazing area of 2 miles is drawn around each residence site, the Navajos grazed over the 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), 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, 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 Aayu-wich (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-l 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 264 sheep, 147 goats, 16 cattle, and 67 horses and burros for a total of 810 sheep units. 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; (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); 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. The Court has found that Curtis Lehi was a Paiute, and his 139 sheep units will be treated as Paiute. Further, the evidence shows that Mercy Whiskers, and not Sid, owned the family’s herd. 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 Beservation 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-l). The Navajo Nation argues that Paiutes spent their winters only in Utah, as described by the Paiutes’ experts, anthropological reports, and Paiute witness accounts. However, the Navajo Nation did 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-l and N-3 in 1934. The Paiutes claim they grazed their sheep in both Utah and Arizona during the winter of 1934. The Navajo Nation claims that Paiute livestock remained in Utah in the winter. The Court finds that Paiutes grazed in Arizona in a limited 2 mile radius around Sites N-l and N-3 (Oaa-vaxat 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. The Navajo Nation argues that the evidence shows that Paiutes left their winter areas in May and moved directly to Paiute Canyon. 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 ambi-lineage would move more often because they had a larger herd, at times grazing over to Rainbow Lodge or to the east of Paiute Canyon. The Navajo Nation argues that the evidence shows that the Nelson and Owl family had a small number of livestock, and were most likely kept near the fields in Paiute Canyon. The Paiute experts listed Sites N-6 and N-7 (claimed to have been used by the Nelson and Owl ambilineage) as in use after 1934, 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. 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, 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 ambi-lineage grazed to Rainbow Lodge or east of Paiute Canyon. Although Angel Whiskers testified about winter camps in this area, no spring or summer sites were listed by the Paiute experts until after Whiskers’ testimony. Also, there are no remains of a site in this area. 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. 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. 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 (Kuchup-aats) 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. However, Dr. Bunte testified that the Paiutes did not go to Shonto every year. She states, “But it was not — 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.” 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, a practice which was no longer necessary in 1934 because Paiutes could dip their sheep at Navajo Mountain by that time. Further, government documents make no mention of Paiutes grazing south of Paiute Canyon. 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. The Paiute experts designated Sites N-19 and N-20 as late summer and fall pinon gathering and grazing camps. However, Angel Whiskers did not include this area in his pinon gathering areas, and Dr. Bunte admitted that she did not know any specific locations where Paiutes gathered pinons in 1934. 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. 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; 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. Further, a Navajo testified that no Paiutes grazed on Paiute Mesa. 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. 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. 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. 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. As there were only 40 horses and donkeys, 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. 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. Dr. Russell testified that at least 16 Navajo camps resided and grazed on Rainbow Plateau, Paiute Canyon, and Paiute Mesa in 1934. Both Navajos and Paiutes testified at trial that Navajos grazed throughout the Rainbow Plateau and Paiute Canyon. 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. 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, while the Navajo Nation contends that Navajos grazed approximately 5,796 sheep units in this area. The Paiutes argue that Malcolm Collier found no overcrowding as late as 1938. 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. The Paiutes request that the Court give little weight to the testimony, arguing that it was untimely and that Dr. Russell asked leading questions. However, government reports, anthropological studies, and witnesses corroborated Dr. Bussell’s findings. 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. 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. 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. The Paiutes marketed baskets at local trading posts and traded them with Hopis and Navajos. 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 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. Sumac must be managed by periodic burning and pruning in order to render it productive for weaving. 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. 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. 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. 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. Further, Dr. Franklin testified that Paiutes tended to gather basket materials from the area where they were living. The evidence further shows that gathering basketry materials was not an activity which occupied a large amount of time for the Paiutes. 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. Only a small number of Paiutes made baskets in the 1930’s, 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 areas every year. 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. Further, there were inconsistencies in the Paiutes’ evidence. 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. 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. 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). Moreover, the evidence does not reflect the intensity of plant gathering, and Dr. Bunte admitted that gathering is not an intensive activity. 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. 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. 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. Further, there were three round dance sites, one at Willow Springs, one at Paiute Canyon, and one on “Atatsiv”, which had spiritual significance to the Paiutes. 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. 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 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-l 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. 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. San Juan Southern Southern Use Area Paiute exclusive use area in 1934. Paiute/Navajo joint use area in 1934. I would like to acknowledge the substantial assistance of Kristen Rosati, my second year law clerk, in research and preparation of this order. . 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. . § 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]. .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 ... . § 640d-16(a) provides: [NJothing 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. . 25 U.S.C. § 640d-7 granted this Court jurisdiction to partition land to the Hopi and Navajo Tribes. If Hopis were exclusively l