Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND JUDGMENT RE: PARTITION OF THE 1934 RESERVATION CARROLL, District Judge. I. BACKGROUND 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. 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 Hopis lived in the Village of Moenkopi and used adjacent areas in 1934, and were “such other Indians” entitled to an equitable interest in the 1934 Reservation. This lawsuit is the second action between the Navajo Nation and the Hopi Tribe to settle title in reservation lands in northeastern Arizona. The rights of the Navajos and Hopis in a parcel withdrawn by Executive Order on December 16, 1882 (“the 1882 Reservation”) were previously litigated in a separate line of cases.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) (per curiam); Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir.1974). Healing was filed in 1958 pursuant to 72 Stat. 403, P.L. 85-547 (1958), authorizing the suit to settle title to the 1882 Reservation. A three-judge panel held that the 1882 Reservation, except for an area known as “District 6” which was exclusively occupied by Hopis, was a joint use area (“the JUA”) for the Navajo and Hopi Indians. After a series of actions to enforce the Hopi Tribe’s right to joint use of the JUA with the Navajo Nation, share and share alike, see, Hamilton v. Nakai, 453 F.2d 152 (9th Cir.1971), cert. denied, 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972); Hamilton v. MacDonald, 503 F.2d 1138 (9th Cir.1974); Sekaquaptewa v. MacDonald, 544 F.2d 396 (9th Cir.1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977), Congress passed the Navajo-Hopi Land Settlement Act, 25 U.S.C. § 640d, et seq., 88 Stat. 1712, P.L. 93-531 (1974) (the “Settlement Act”). The Settlement Act authorized the District Court to partition the JUA (after a mediated negotiation effort by the Tribes), and provided for the relocation of individual Indians who lived on lands partitioned to the other Tribe. After negotiation failed, the District Court partitioned the JUA; the partition order was final on April 18, 1979. The Settlement Act also authorized the District Court to settle title to the 1934 Reservation. 25 U.S.C. § 640d-7. That section provided that lands in which the Court found the Navajo had exclusive interest would remain a part of the Navajo Reservation, that lands in which the Hopi had an exclusive interest would become a reservation for the Hopi Tribe, and that lands in which the Navajo or Hopi had a joint or undivided interest shall be partitioned by the Court “on the basis of fairness and equity”. On April 27, 1992, this Court issued its Findings of Fact and Conclusions of Law regarding Hopi interest in the 1934 Reservation. The Court held that the use by Hopi Indians in 1934 must have been substantial and sufficiently intensive in order to create a property interest in the 1934 Reservation. (See more extended discussion of what constituted sufficient occupation, possession or use in the 4/27/92 Findings.) The earlier Findings generally described the areas which the Hopis had exclusively or jointly used in 1934 based on evidence presented at the trial held between October 17, 1989 and February 8, 1990 (Phase I of this proceeding). This opinion will more specifically delineate the boundaries of the area which this Court found Hopis had exclusively used, and that area found to have been jointly used by Hopis and Navajos in 1934. This Court will then partition the joint use area, based on standards explained in the next section. The Hopi exclusive use area plus the area partitioned to the Hopi Tribe from the joint use area will become part of the Hopi Reservation. 25 U.S.C. § 640d-7(b). Trial regarding partition, or “Phase II”, commenced on July 7, 1992, and continued until July 21, 1992. Both parties presented extensive evidence about the present-day use by Navajos and Hopis of the area subject to partition, including residential, farming, and grazing use of the land. The parties also presented arguments regarding the appropriate standards for this Court to employ in the partition. The Court viewed the areas involved in this proceeding on June 27, 1992, in a helicopter-ground tour arranged with the consent of the parties by Dan Jackson, Solicitor’s Office, Department of Interior, Phoenix, Arizona. The helicopter group included Craig So-land, an attorney for the Navajo Tribe, James Scarboro, an attorney for the Hopi Tribe, and Kristen Rosati, the Court’s Law Clerk. We flew over the joint use area and the Hopi exclusive use area. We were able to see the different windmills, stock tanks, grazing areas, homesites, and farming locations, as well as the physical features of the terrain. The Ward Terrace — Moenkopi Plateau escarpment, Pasture Canyon, Coal Mine Mesa, Coal Mine Canyon, Hollow Place and Little Hollow Place were all easily identified. A representative of each tribe joined the group for the ground tour. We travelled together in one van and essentially toured the two Bennett Freeze Administrative Units, and Kerley Valley as far west as the sewer lagoons. We also drove through the Goldtooth Compound and up to the top of the Moenkopi Plateau. We could look back over Tuba City and Moenkopi Village, and locate the Government Farm and allotment lands. All agreed that it was a Saturday well spent (and enjoyed) and provided an opportunity to see the case in a different and more understanding perspective. We are particularly indebted to Dan Jackson and the Bureau of Reclamation for the helicopter and the excellent pilot, Mark Santee. II. STANDARDS FOR PARTITION In general, the Hopi Tribe argues for division of the joint use area based on equality of acreage, taking into consideration the other standards provided for the partition of the 1882 Reservation, including avoiding population concentrations and establishing contiguous boundaries. See, 25 U.S.C. § 640d-5 (standards for partition of the 1882 Reservation). The Navajos take the position that the primary criteria should be avoiding the relocation of individuals; they also ask the Court to consider present and historical intensity of land use and the fact that Hopis have more land per capita than the Navajos, and to utilize natural topographic features to allow easy administration of boundaries. The essential dispute between the parties is whether the partition should or must be based on equality of acreage. The following discussion will examine how the statute, legislative history, the precedent in this case, and Healing v. Jones and the partition of the 1882 Reservation may effect this decision. 1. Statutory requirements This Court has jurisdiction to partition jointly used lands pursuant to 25 U.S.C. § 640d-7(b): 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. The statute does not give the Court guidelines for the application of “fairness and equity”. The lack of standards in this section, as compared with section 640d-5 which listed detailed criteria for the partition of the 1882 Reservation, indicates that Congress intended to grant the Court broad discretion in the partition of the 1934 Reservation. Further, in contrast to the partition of the 1882 Reservation, the absence of an “owelty” provision suggests that Congress did not intend equality of acreage and/or value of joint use land to be mandatory in the partition of the 1934 Reservation. See, 25 U.S.C. § 640d-5(d) (payment required after division of 1882 Reservation to Tribe receiving land of lesser acreage and/or value). 2. Legislative history The legislative history does not provide the Court guidance in determining Congress’ intent regarding standards for partition of the 1934 Reservation. There is no discussion regarding the meaning of “fairness and equity”. 3. Laiu of the Case The Hopi Tribe argues that equal partition of the joint use area is required by precedent. In Sekaquaptewa v. MacDonald, 448 F.Supp. 1183, 1996 (D.Ariz.1978) (Sekaquaptewa I), the District Court (Judge Cop-pie) held that the Hopis and Navajos each received an undivided one half interest in lands occupied by Hopis: “Inasmuch as the 1934 Act did not attempt to separate Hopi and Navajo property interests, the Hopi tribe and the Navajo tribe each received an undivided one half interest in these lands.” The Ninth Circuit reversed only as to the conclusion that the Navajo Nation received a one half interest in lands which were occupied exclusively by Hopis. Sekaquaptewa v. MacDonald, 619 F.2d 801, 809-810 (9th Cir.1980) (Sekaquaptewa II). The Hopis urge that the Ninth Circuit thus held that the Hopis should receive one half of the joint use acreage upon partition. However, while it is clear that the Hopi Tribe has a one half interest in the joint use area, neither the District or Circuit Court specifically considered the appropriate standards for partition of that area. The June 2, 1978 Partial Judgment stated, “the Court reserves for future determination all questions relating to partitioning of any such lands.” Further, the Ninth Circuit did not direct the District Court on remand to partition joint use lands on an equal basis, requiring only that the District Court “declare title to be joint or undivided, subject to partition.” Sekaquaptewa II, 619 F.2d at 809. The law of the case therefore does not dictate that the Hopi Tribe receive one half of the acreage of the joint use area. 4. The effect of Healing and the partition of the 1882 Reservation The Hopi Tribe argues that the Court should follow the standards employed in the division of the 1882 Reservation, set forth in 25 U.S.C. § 640d-5(a)-(f). The preamble of section 640d-5 provided that the Court should be guided by the decision in Healing v. Jones, 210 F.Supp. 125, in which the District Court held that the Navajo and Hopi Tribes had an equal interest in land in the 1882 Reservation outside of an area held exclusively by the Hopi Tribe (District 6); section 640d-5(d) required that the partition be based on equal acreage and/or value of land insofar as practicable. The Hopis argue that this Court should apply the same standards in partitioning the joint use area in the 1934 Reservation. While the Healing court held that Navajos had a one-half interest in land which they exclusively occupied (most of the land outside District 6), which holding was reflected in the provisions of the Settlement Act regarding partition of the JUA, the Settlement Act treated the 1934 Reservation dispute differently. Recognizing this, the Ninth Circuit in Sekaquaptewa II distinguished Healing and held that Hopis in the 1934 Reservation would have an exclusive interest in lands held exclusively by Hopis. In reversing Judge Copple’s finding that the Hopi Tribe had a one half interest in lands on which Hopis were exclusively located (applying Healing), the Court stated, “The statute and order in Healing used different language in a different legislative setting than the 1934 Act.” Sekaquaptewa II, 619 F.2d at 807. As stated in this Court’s April Findings, “[ajlthough 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.” (4/27/92 Findings, p. 4). The standards utilized in the partition of the 1882 Reservation will be reviewed by the Court as they represent the factors Congress considered important in a very similar dispute. However, equality of acreage or value need not be the primary consideration; by failing to specify similar guidelines for the 1934 Reservation dispute, Congress provided discretion for this Court to arrive at appropriate standards to achieve a partition based on “fairness and equity”. Thus, equality of acreage and/or value will be only one factor that the Court considers in the partition. III. DELINEATION OF EXCLUSIVE USE AND JOINT USE BOUNDARIES A. Hopi Exclusive Use Area This Court’s April 27, 1992 Conclusions of Law found that the following areas were exclusively used by Hopis in 1934: (1) the Village of Moenkopi, (2) Reservoir Canyon, (3) certain areas within Moenkopi Wash/Ker-ley Valley, and (4) part of the central/southern Moenkopi Plateau. (4/27/92 Findings, pp. 77-78). These areas were explained in a more detailed fashion in the April 27, 1992 Findings of Fact, but need further definition. A map of the 1934 exclusive and joint use areas is attached at App. A to this opinion. 1.The Village of Moenkopi The Court found that Hopis exclusively occupied the Village of Moenkopi in 1934, but did not delineate the boundaries of Moenko-pi. (4/27/92 Findings, p. 77). The Hopi Tribe argues that the current Moenkopi Administrative Unit, bounded on the north by the Highway 160, should be the boundary for Moenkopi. However, the Moenkopi Administrative Unit boundary was created in 1972 to facilitate the administration of the Bennett Freeze, and its boundaries are not related to Hopi or Navajo use in 1934. Further, the 1980 codification of the Freeze, 25 U.S.C. § 640d-9(f), was intended to preserve the parties’ rights subject to a final adjudication. Thus, this Court will not adopt the boundaries of the Moenkopi Administrative Unit as the Hopi exclusive use boundary. The Court will instead adopt a boundary for the Village of Moenkopi based on 1934 aerial photographs. {See, Exs. C and D to the Navajo brief on standards for partition and delineation of boundaries, based on Exs. 728 and 731). The photographs demonstrate that there were Hopi improvements north of the present Highway 264, including a water tank and stone quarry at Site 134. The exclusive use boundary will follow from Site 134 to the east along the 4800-foot contour line to Reservoir Canyon. To the west, the exclusive use boundary will follow from Site 134 in a straight line to the northeastern corner of the Navajo allotments. The eastern boundary of the Village of Moenkopi is contiguous with that of Reservoir Canyon and need not be established; the southern boundary of the Village is contiguous with the Hopi allotments and Hopi fields in the Kerley Valley/Moenkopi Wash area (which will be included in the Hopi exclusive use area) and also need not be established. There is evidence that some area within the present-day Moenkopi Administrative Unit was jointly used by Navajos and Hopis in 1934, and the area within the Moenkopi Administrative Unit (outside- of the Village of Moenkopi) outside the Hopi exclusive use area will be treated as a joint use area. 2. Reservoir Canyon The Court found that Reservoir Canyon, lying northeast of the Village of Moenkopi, was exclusively used by Hopis in 1934, but did not define the boundaries of the canyon. (4/27/92 Findings, pp. 24-25). In the preceding section, the Court found that the boundary of Moenkopi Village followed from Site 134 along the 4800 foot contour to Reservoir Canyon. The western boundary for Reservón Canyon will continue up the 4800 foot contour up to the present Highway 160, the northern boundary will be Highway 160, and the eastern boundary will travel south from Highway 160 along the 4800 foot contour on the other side of Reservoir Canyon until it connects with the northern boundary of the Hopi allotments. 3. Moenkopi Wash/Kerley Valley The Court found that the Hopi exclusive area in the Moenkopi Wash/Kerley Valley area included areas upstream from the present Highway 264 bridge, downstream from the present Highway 264 bridge (except for Navajo patented allotments) and south of the Wash between Moenkopi and the “old Hopi bridge” at the western end of Kerley Valley. (4/27/92 Findings, pp. 16-21). The northern border for the area east of the Highwáy 264 bridge (upstream) will be the center of Moenkopi Wash, extending to Adams Site 152 on the east. West of the Highway 264 bridge, the exclusive use boundary will travel with Highway 264 until the highway meets the Hopi allotments. This encompasses fields 11 and 12, east of the Hopi allotments, which the Court found were exclusive Hopi farming areas. The exclusive area will also include fields 12.11 and 12.8, immediately west of the Hopi allotments, southwest of the Village of Moenkopi. All Hopi allotments, including Tract 43 adjacent to the Navajo allotments, will be included in land partitioned to the Hopi Tribe. The exclusive area does not include the small area of land between the Navajo allotments and the “Government Farm” west of Moen-kopi. South of Moenkopi Wash and west of the Village, the Hopi exclusive area in Kerley Valley will extend from the bluff west of the Navajo allotments (immediately west of present-day Site 45, belonging to the Goldtooth family) at field 3.1 to the western border of field 3.8. The northern boundary will be the center of the Wash, and the southern boundary will be the cliffs of the Moenkopi Plateau (the 4600-foot contour line). This excludes the site of the present-day Tuba City Sewage Lagoons, where the Court found that a Navajo camp had resided in 1934. (4/27/92 Findings, p. 49, n. 89). 4. The Moenkopi Plateau The Court found that certain areas on the Moenkopi Plateau were within the Hopi exclusive area, including an area south and southeast of Moenkopi (south of the Wash) and the central/southern Moenkopi Plateau to the southern border of the claimed Hopi exclusive use area, marked on Exhibit 703A. (4/27/92 Findings, pp. 55-58, 63-64.) The Court finds that the western boundary of the exclusive use area will descend from the southwestern corner of the Hopi allotments and follow the boundary proposed by the Navajo Nation. This boundary accurately reflects where Navajos lived and herded on the northwestern Plateau and along the western escarpment of the Moenkopi Plateau in 1934. The eastern boundary of the Hopi exclusive area will begin at Adams Site 152, follow the drainage of Ironwood Springs onto the Plateau, and proceed south to the Adams line, excluding the Bakalo (Hollow Place) and Little Bakalo (Little Hollow Place). The areas for Hollow Place and Little Hollow Place shown on the Navajo Nation’s map (Ex. A to its brief re: standards for partition and delineation of boundaries) will be adopted by the Court. Conclusion The total acreage of the Hopi exclusive area is approximately 22,675 acres. B. Hopi and Navajo Joint Use Area This Court found that a number of areas were jointly used by Hopis and Navajos in 1934: (1) Moenkopi Wasb/Kerley Valley north of the Wash between the Government Farm on the east and the old Hopi bridge on the west, (2) Pasture Canyon, (3) north of the Moenkopi Wash and east of the Village of Moenkopi, (4) the western Moekopi Plateau, (5) the northeastern Moenkopi Plateau, (6) Ward Terrace, (7) the Bakalo (Hollow Place), (8) Coal Mine Mesa, and (9) the southern Moenkopi Plateau. (4/27/92 Findings, p. 79). Each of these areas was more specifically delineated in the April, 1992 Findings of Fact, but need further definition. 1. Moenkopi Wash/Kerley Valley north of the Wash between the Government Farm on the east and the old Hopi bridge on the west This Court found that the area north of the Moenkopi Wash between the Government Farm and the “old Hopi bridge” was jointly used by Navajos and Hopis in 1934. (4/27/92 Findings, p. 29-30). The joint use area excludes the Government Farm, in which the Court found the Hopi Tribe did not have an interest. (Findings, pp. 29-30). Only the northern boundary requires elucidation. The farming plots north of the old Tuba City-Cameron Road are below the ridge or bluff to the north at the 4600-foot contour line, and the northern boundary will be set at the 4600-foot contour, extending from Ker-ley’s Trading Post to a north-south line immediately west of field 1.10. The joint use area does not extend west of field 1.10. Only two farm plots were located west of field 1.10 (field 1.8 and 1.9), both of which the Court found were farmed by Navajos. Further, the joint use area will not extend north of the 4600-foot contour to pick up field 1.6e, which was farmed by Navajos in 1934. As discussed previously, the area within the Moenkopi Administrative Unit north of the Hopi exclusive use area and south of Highway 160 was also jointly used by Hopis and Navajos in 1934. 2.Pasture Canyon The Court found that only Hopis farmed in Pasture Canyon in 1934, that two Hopi outfits grazed their livestock in Pasture Canyon, and that Navajos were grazing in and around Pasture Canyon. (4/27/92 Findings, pp. 25, 39-43). The Hopi Tribe argues that the joint use area should include a “reasonable” area surrounding the canyon floor, and suggests a margin of one and one-half miles from the bottom of the drainage on all sides. However, the Court found no evidence that Hopis grazed outside of the Canyon in 1934. Further, the Hopi ■ Tribe did not establish an interest in the “Government Pasture” in Pasture Canyon. Accordingly, the joint use area will be restricted to Pasture Canyon south of the Government Pasture. 3. North of Moenkopi Wash and east of the Village of Moenkopi The April, 1992 Findings did not specify the eastern or northern boundaries for this joint use area. The Court found that east of Moenkopi, Hopis primarily grazed east and southeast of Moenkopi and Navajos primarily grazed east and northeast of Moenkopi; however, there was evidence of Hopi sites north of Moenkopi Wash (Adams Site 108 and 109). (Findings, p. 63-64). The western boundary of this joint use area is contiguous with the eastern boundary of the Hopi exclusive use area in the Village of Moenkopi/Reservoir Canyon areas, previously defined. The northern boundary will start from the point at which Highway 160 divides Reservoir and Pasture Canyons, and travel in a slightly northeasterly direction to pass directly north of Adams Site 108 and 109. The northern boundary will then curve in a southeast direction when it reaches a point north of Adams Site 152, until the boundary crosses the Moenkopi Wash at Adams Site 157, just west of “Standing Big Tree”. 4. Northeastern Moenkopi Plateau The Court found that the northeastern Moenkopi Plateau was jointly used by Navajos and Hopis in 1934. (4/27/92 Findings pp. 47-54). East of the Hopi exclusive use area, the joint use area boundary will follow the Moenkopi Wash to a point directly north of Rock Pile windmill. This represents a rea-' sonable grazing area for the Hopis located at Adams Site 157, the easternmost Hopi site in 1934. There is no evidence of substantial Hopi use east of this area to support a further extension of the joint use area. The evidence cited by the Court at notes 85 and 115 places Hopis well within the boundary outlined above. The Hopis did not present any physical evidence of Hopi use east of Adams Site 157, and no government document mentioned Hopi grazing east of the boundary outlined. 5. Western Moenkopi Plateau The Court found that the western Moenko-pi Plateau was jointly used by Navajos and Hopis in 1934. (4/27/92 Findings pp. 47-54). The western boundary of the joint use area (except where it is extended by Ward Terrace) follows the western escarpment of the Moenkopi Plateau at the 4900-foot contour. 6. Ward Terrace The Court found that both Navajos and Hopis grazed their livestock on Ward Terrace in 1934. (4/27/92 Findings, pp. 43-47). In the Amended Findings, the Court clarified that this did not encompass the entire Ward Terrace geographic feature, but instead, that the southern boundary of the Ward Terrace joint use area was parallel with the southern boundary for Ward Terrace depicted on Ex. 703A (south of “Waawala” and “Spring on the Rocks”). The western boundary will travel southwest from the old Hopi bridge to the Five Mile Wash, and travel directly south to the southern boundary of the Ward Terrace use area. 7. The Bakalo (Hollow Place) The Court found that both Navajos and Hopis used the Hollow Place in 1934. (4/27/92 Findings, p. 58). Because this area merges with the joint use area on Coal Mine Mesa and is bounded on the west by the Hopi exclusive use area, there is no need to discuss the boundaries for Hollow Place. 8. Coal Mine Mesa The Court found that Navajos and Hopis jointly used portions of Coal Mine Mesa in 1934. (4/27/92 Findings, pp. 59-62). The western border of this joint use area is defined by the Hopi exclusive area (in the northern section) and by Appaloosa Ridge (travelling from the southeastern corner of the Hopi exclusive use area to the southern fence of the Buck Pasture). The eastern boundary of the Coal Mine Mesa joint use area will begin at a point at Moenkopi Wash east of Adams Site 157 and directly north of Rock Pile windmill (as previously discussed). The joint use boundary will then travel in a straight line southeast to “Tsorspatuyqa”, follow the edge of Coal Mine Canyon until it reaches “Coal Mine”, and then head directly south until the southern boundary at Hukvahklo (Windy Tank) is met. (This southern boundary will be established in the next section). This excludes Coal Mine Canyon, for which there was little evidence of Hopi use. The area includes the points at which the SCS recorded Hopi grazing (see 4/27/92 Findings, footnote 116), and includes Little Hollow Place. Although the Court initially found that Hopis did not use Little Hollow Place in 1934 (see 4/27/92 Findings, pp. 58-59), upon reexamination of the evidence it is clear that testimony referring to use on Coal Mine Mesa included Little Hollow Place. See, 4/21/92 Findings at note 116. 9.Southern Moenkopi Plateau Finally, this Court concluded that the southern Moenkopi Plateau was a joint use area, south of the Hopi exclusive area border depicted on Ex. 703A, throughout Buck Pasture to Hukvahklo (Windy Tank). (4/27/92 Findings, pp. 55-58). Further, in Amended Findings issued on June 18, 1992, the Court clarified that the joint use area on the Moen-kopi Plateau did not extend past Windy Tank. (Amended Findings, p. 5). The joint use area is bounded on the north by the previously defined Hopi exclusive area; the southern, eastern and western boundaries must be defined. The escarpment of the Moenkopi Plateau forms the western border (except where it adjoins the joint use area on Ward Terrace). The eastern boundary follows straight south from the “Coal Mine” to Windy Tank, and does not meet the border of the 1882 Reservation (as previously discussed in the Coal Mine Mesa section). The southern boundary extends from the western escarpment south of the southern Buck Pasture fence (at the Adeii Eechii Cliffs) to the eastern boundary. Conclusion The acreage of the joint use area is approximately 167,819 acres. The acreage of the “checkerboard lands” on the southern Moenkopi Plateau which this Court previously found were excluded from Hopi claims, must be subtracted from the acreage of the joint use area. The Court finds that Ex. 5571 best estimates the location of these checkerboard lands if they are eventually surveyed; the total acreage to be excluded is 14,976. Thus, the total acreage of the joint use area available for partition is 152,843 acres. FINDINGS OF FACT I. Current Hopi Use A number of Hopis testified regarding their grazing and farming areas, including Jonathan Phillips, Wilfred Kaye, William Numkena, Leroy Hungeva, Robert Charley, Gilbert Naseyowma, Pierson Honahni, Alton Honahni, Sr., Clayton Honyumptewa, and Eugene Kaye. Many of these people testified about the grazing and farming practices of other Hopis, as well. Most of the Hopis living in the 1934 Reservation live in the Village of Moenkopi or within the Moenkopi Administrative Unit. Some of the Hopis have dwellings east of Moenkopi adjacent to farming areas, and some ranchers have “ranch houses” in which they stay briefly when caring for their livestock. These ranching sites are depicted on Ex. 4417. The Hopi grazing area is centered on the central Moenkopi Plateau, around Little Hollow Place, Hollow Place, and along the western escarpment of the Plateau. Less intensive Hopi grazing occurs on the northwestern section of the Moenkopi Plateau, on southern Coal Mine Mesa, and on the northeastern section of the Moenkopi Plateau. Outside of occasional strays, no Hopi grazing occurs south of the Buck Pasture, in Coal Mine Canyon, or north of Moenkopi Wash. No Hopis graze inside the Buck Pasture or on Ward Terrace. Most of the area intensively grazed by Hopi livestock will be partitioned to the Hopi Tribe. The water sources most intensively used by Hopis for grazing include the “Left-hand” (or “Lazy Ranch”) windmill, Goldtooth windmill, Little Hollow Place windmill, the springs on the western escarpment of the Moenkopi Plateau (including Spring on the Rocks, View Point Well, Seller Springs, Tonali and Toh Nee Di Kishi), the Owl Head windmill and Ironwood Springs. Fewer Hopi livestock use the Little Cowboy windmill, Coal Mine windmill, Rock Pile windmill, Whitehorse windmill, and the Moenkopi Wash. Only strays use the water sources south of the Buck Pasture, including “Where the Hills End” windmill and Salt Water windmill, neither of which are within the 1934 joint use area, in any event. Most of the water sources intensively used by Hopi livestock will be partitioned to the Hopi Tribe. Hopis primarily farm in Pasture Canyon (south of the old “Government Pasture”), and in the Moenkopi Wash/Kerley Valley area south of Moenkopi Wash. There are Hopi farms north of the wash in the vicinity of the Village of Moenkopi within the Hopi exclusive use area, and a few Hopi farms north of the Wash in western Kerley Valley. Also, there are a few Hopi farms in Hollow Place. Clayton Honyumptewa, Director for the Office of Hopi Lands of the Hopi Tribe, created two maps showing all Hopis farming in Ker-ley Valley and Pasture Canyon. See, Ex. 4437 (Kerley Valley); Ex. 4438 (Pasture Canyon). He prepared these maps from records kept by his office in the last three years for purposes of this litigation, and by interviewing Hopis in these areas over the last 2-3 months. 2 TT 400-01, 408-12 (Honyumpte-wa). II. Current Navajo Use Navajos also testified about their residence, farming and grazing in the 1934 joint use area, including Ale Manygoats, Edward Begay, Julia Hadley, Alice Edison, Helen George, Evelyn Flatrock, Edith Billy, Sally Yazzie, Alfred Hosteenez, Angela Rose Maloney, Bennie Begay, Kay Yaz-zie, Eleanor Williams, Lena Canyon, Eddie Cly, Faye Tso, and Maria Wilson. Dr. Scott Russell, who testified extensively in Phase I of this case regarding Navajo use in 1934, also testified in this trial regarding current Navajo use of this area. His testimony is cited with reference to the testimony of the individuals, above. He represented his opinion of Navajo use on Ex. 5001, on which he plotted all current Navajo residences and non-residential structures. His opinion regarding use in Kerley Valley is plotted on a more detailed map, Ex. 5002. Dr. Russell also constructed a list of all the people who were, in his opinion, part-time or full-time residents or “principal users” of each site. See, Ex. 5565A. Further, Dr. Russell collected photographs of the main structures at each site, constructed genealogies of the principals at each site, and excerpted 1991, 1990, 1989 and 1968 BIA grazing records for Navajos with livestock. See, Ex. 5602. The information from the BIA grazing records for Navajos are summarized in Ex. 5603. (Information from 1991 BIA grazing records for Hopis are summarized in Ex. 5606.) Dr. Russell did not investigate what areas were grazed by Navajo livestock. Many Navajos in this area, especially the older ones, live full-time at their homesites on Coal Mine Mesa and the Moenkopi Plateau. Many others live part-time in Tuba City (or other towns on the Reservation) and part-time (generally weekends and summers) at their homesites. This part-time use of the homesites is important to these people; often many generations have lived at these home-sites (or sites close by within a customary use area), and their periodic return is necessary for conducting livestock operations. Thus, the Court will attempt, as much as is possible, to place full-time and part-time residences of Navajos on land partitioned to the Navajo Nation. (All Hopi residences and ranch sites will be within land partitioned to the Hopi Tribe.) Navajo grazing is intensive in and around Pasture Canyon, on the northeastern section of the Moenkopi Plateau (north and south of Moenkopi Wash), south along Coal Mine Canyon to Highway 264, and west to Hollow Place. South of Highway 264, Navajo grazing is intensive within Hollow Place and Little Hollow Place, to Goldtooth windmill, and around the Buck Pasture fence to Little Cowboy windmill, Where the Hills End windmill, and the Salt Water windmill. Navajos also graze in the Buck Pasture, along the western escarpment of the Moenkopi Plateau, and on the northwestern section of the Moenkopi Plateau. Most of the area intensively grazed by Navajos will be partitioned to the Navajo Nation. The water sources most intensively used by Navajos for grazing livestock include the Pasture Canyon Reservoir, Moenkopi Wash, the windmill north of Lice Hill, Whitehorse windmill, Rock Pile windmill, Coal Mine Mesa windmill, Little Cowboy windmill, Goldtooth windmill, Little Hollow Place windmill, and the southern springs on the western escarpment of the Moenkopi Plateau (including Spring on the Rocks and View Point Well). Fewer Navajo livestock use the Salt Water windmill, Where the Hills End windmill, and the water sources on the northwestern Plateau (including Crater Well and a few natural springs). Most of the water sources used intensively by Navajo livestock will be partitioned to the Navajo Nation. Navajos farm in Pasture Canyon in the old “Government Pasture” area (north of the Hopi farms), and in the Moenkopi Wash/Kerley Valley, west of the Village of Moenkopi. Most of the latter farms are in the Navajo allotments or north of the Moenkopi Wash. Further, many Navajos have fields at their homesites on Coal Mine Mesa or the Moenkopi Plateau. All of the land on which Navajo farms are located will be partitioned to the Navajo Nation. III. The Bennett Freeze In 1966, Robert L. Bennett, then Commissioner of Indian Affairs, established the “Bennett Freeze”, which required Hopi consent for actions that “hypothecate the surface or ' sub-surface resources for exploration, mining, rights-of-way, traders, or other use or occupancy authorized by permit, lease or license.” See, Ex. 6252 (Letter from Robert Bennett to Graham E. Holmes, Area Director, July 8,1966). This restriction applied to that part of the 1934 Reservation lying west of the 1882 Reservation and bounded on the north and south by westerly extensions of the northern and southern boundaries of the 1882 Reservation, to the western border of the Navajo Reservation. The Bennett Freeze was intended to protect the interests of the Hopi Tribe pending any negotiated, Congressional, or court resolution of Hopi and Navajo property interests in the 1934 Reservation. On August 4,1972, the Freeze was lifted in the Tuba City and Moenkopi Administrative Units (areas immediately surrounding Tuba City and Moenkopi, as defined by the- Department of Interior) with respect to “leases, permits, rights-of-way, and other transactions affecting real property interest.” Thus, development could take place in the Tuba City Administrative Unit without the consent of the Hopi Tribe, and development could take place in the Moenkopi Administrative Unit without the consent of the Navajo Nation. See, Ex. 5048 (Letter from Harrison Loesch, Assistant Secretary of the Interior to Peter MacDonald, Chairman of the Navajo Tribal Council, August 4, 1972). Loesch’s letter noted that the lifting of the Freeze in the Administrative Units was not intended to prejudice the interests of either tribe in the resolution of their respective rights to the 1934 Reservation. The Freeze was codified in 1974 by 25 U.S.C. § 640d-9. That section provided: Any development of lands in litigation pur-, suant to section 640d-7 of this title and further defined as “that portion of the Navajo Reservation, lying west of the Executive Order Reservation of 1882 and bounded on the north and south by westerly extension, to the reservation line, of the northern and southern boundaries of said Executive Order Reservation,” shall be carried out only upon the written consent of each tribe except for the limited areas around the village of Moenkopi and around Tuba City. Each such area has been heretofore designated by the Secretary. “Development” as used herein shall mean any new construction or improvement to the property and further includes public work projects, power and water lines, public agency improvements, and associated rights-of-way. Section 640d~9 was amended in 1988, requiring the Tribes to respond to requests for development or construction within 30 days, and providing an administrative appeal procedure if one Tribe refused to give consent to development. Clayton Honyumptewa, Director of the Office of Hopi Lands for the Hopi Tribe, testified about the responsibilities of his office for the enforcement of the Bennett Freeze. See generally, 9 TT 1398-1425 (Honyumptewa). Since 1982, the Office has monitored the Bennett Freeze area for “illegal construction” (i.e. new construction or development), including limited helicopter surveillance of the approximately 2 million acres of the Bennett Freeze area. The Hopi Tribe contends that any structures built in violation of the Freeze should not influence this Court’s decision in partitioning land to the Navajo Nation, because the Freeze was intended to protect Hopi rights to the land in the face of growing Navajo population and development. Much evidence was introduced by both parties regarding the date at which structures were constructed. The Navajo Nation introduced the testimony of David Brugge, an anthropologist who had done field work in 1967 regarding Navajo use of the area in question. During this time, he had been employed by the Navajo Nation to assist in developing information for the use of Navajo negotiators in the land dispute. He was hired in this case to “retrace his steps” to establish the continuity of Navajo use from 1967 to date. He plotted his findings of past, compared to current, Navajo use on Ex. 5579. See also, Ex. 5579B (chart comparing Brugge site numbers with Russell site numbers). The Navajo Nation introduced Brugge’s testimony to rebut any Hopi claim that Navajo sites were established after the imposition of the Bennett Freeze. The Navajo Nation also introduced the testimony of Dr. William Graf, a professor of geography from Arizona State University, who interpreted aerial photographs from 1952, 1968, and 1979. His opinion of the 1968 aerial photographs largely corroborated David Brugge’s testimony. However, with few exceptions, this Court will not consider the date of construction of structures; most of the Navajo sites fall within the areas where Navajo families have been since before 1966, and the date of construction of structures, or the relocation of structures within these areas does not affect the equitable considerations in this case. Some of the Hopi structures were built after the imposition of the Bennett Freeze, as well, but are within areas used by Hopis prior to 1966. The Bennett Freeze was an administrative, and later statutory, mechanism designed to maintain the “status quo” on the disputed lands in the 1934 Reservation and to prevent contemporary development from affecting the rights of either party. This Court will consider the date of occupation or construction of structures only if there was “new” construction located outside of a prior use area which was not approved by the Hopi Tribe. The Hopi Tribe pointed to only three Bennett Freeze violations of new construction, versus replacement of old homes or repairs. All three were located within a prior use area. One of these alleged “new construction” violators was Kay Yazzie, who built a hogan at Site 55 in 1982 after relocating from the Hopi Partitioned Lands. Blanche Taho, a Navajo who grazed her cattle in this area, notified the Office of Hopi Lands that Kay Yazzie had constructed a hogan at this site. The field report, Ex. 4221A, dated May 13, 1982, indicates that Yazzie was notified of the violation, and stated that he would not move. 9 TT 1402-05 (Honyumptewa). The Hopi Tribe did not seek to evict Mr. Yazzie. 9 TT 1422-23 (Honyumptewa). Kay Yazzie testified that his wife’s family had rights to the area around Site 55 (i.e. it was part of their prior use area). 8 TT 1154-58 (Yazzie). This was not contradicted by the Hopi Tribe. A second alleged new construction violation was recorded at Site 121, the homesite of Donald and Eleanor Williams. The field report, Ex. 4221B, dated November 17, 1988, indicates that Mr. Honyumptewa, then a field monitor, talked with Donald Williams about the mobile home trailer that Williams said had previously been located about 3 and $ miles south of Site 121. Mr. Williams was informed of the Freeze violation, and referred to the Navajo-Hopi Development Office for assistance. A second field report, Ex. 4221C, dated October 10, 1989, reported that further structures had been erected, including a wood frame house, two corrals, a sweat lodge, and fencing. A notice was posted on his trailer door that day. A third field trip report, Ex. 4221D, dated December 12, 1991, indicated that the structures were still at the site; no notice was posted or given to Mr. Williams that day. 9 TT 1406-1409 (Honyumptewa). The Hopi Tribe did not seek to evict the Williams from Site 121. 9 TT 1422-23 (Honyumptewa). Eleanor Williams testified that they moved onto this site in 1986, and that it was formerly a summer camp for Donald’s family on which there was a ramada. 8 TT 1166,1173-74. Although Clayton Honyumptewa testified that he had not seen a ramada at the site since he began working for the Office of Hopi Lands five years ago, 9 TT 1421 (Honyump-tewa), the Hopi Tribe did not contradict Eleanor Williams’ testimony that the site had been a prior use area of the Williams family. The Hopis claim that the third site which should not be considered by the Court is Site 60, where Glenmore Begay built a new hogan after the Hopi Tribe tore down the hogan previously inhabited by his father Herbert Zahne. See, 6 TT 971-71 (Julia Hadley). The Hopi Tribe originally considered the new hogan to be a violation of the Freeze, but reconsidered and approved the structure, upon condition that the new construction would not be asserted by the Navajo Nation in a way contrary to the Hopi Tribe’s interest in this litigation. This Court finds, in any event, that this site was used by Glenmore Begay’s family prior to the construction of his hogan. Further, this site is outside of the 1934 jointly used area and is not subject to partition to the Hopi Tribe. Finally, 25 U.S.C. § 640d-9 prevents development of lands “in litigation”. In its final judgment, this Court will order the Bennett Freeze lifted, pending any appeal that might be taken. Residents of the Western Navajo Reservation, both Navajo and Hopi, have waited long enough to see this litigation resolved, and it would be inequitable to continue the restrictions on repair and addition to homes and the development of services essential for comfort and sanitation. IV. Partition The Court’s partition line is represented on App. A to this opinion. On the west, the partition line begins at the western edge of the Hopi farms in the “Masaaw” region south of Moenkopi Wash (Hopi field 3.8), travels south to the Moenko-pi Plateau, and west to the western escarpment of the Moenkopi Plateau (excluding the Tuba City sewage lagoons). The partition line then travels down the western escarpment of Moenkopi Plateau (at the 4900-foot contour) to a point immediately north of View Point Well. From View Point Well, it travels east to a point directly south of the mid-point of Little Hollow Place. The partition line then turns directly north, passing immediately east of the structures and windmill in Little Hollow Place to Highway 264. The partition line then travels in a slight southeast direction along Highway 264, until it reaches a point directly south of Site 57. The partition line then turns north, passing immediately west of Site 57 to a point just north of Site 57. It then travels northeast to a point immediately west of Rock Pile windmill, and from that point turns directly north until it reaches the middle of Moenkopi Wash. The partition line then travels down the middle of Moenkopi Wash until the township line immediately east of Adams’ Site 152 (from the Phase I trial), turns north and travels up the township line. The line then travels west until it meets the intersection between Highway 160 and Reservoir Canyon/Pasture Canyon. The partition line then follows the eastern wall of Pasture Canyon, until it reaches the southern border of the old “Government Pasture” at the current Navajo farms, then travels across the Canyon and south again along the wall of the Canyon, travelling in a generally southerly extension across the park area to Highway 160. The partition line then follows Highway 160 until it hits the Navajo allotments, and travels along the eastern border of the Navajo allotments. The partition line then follows the base of the Moenkopi Plateau until it reaches the bluff between Lena Goldtooth Canyon’s field and ceremonial hogan and the Hopi farms. The partition line will travel up the eastern side of this bluff until it reaches Moenkopi Wash, and then will travel west along the mid-point of the Wash until it reaches the western border of the Hopi farms in the “Masaaw” region, south of the Wash (where the partition line began). The partition line takes a number of factors into account, including (1) avoiding the relocation of individuals, (2) avoiding the disruption of grazing areas, as much as possible, (3) providing 50% of the joint use area acreage to the Hopi Tribe, to the extent possible, (4) fairly and equitably distributing water sources, and (5) ensuring the feasibility of future administration of the partitioned areas, including fencing. Each factor will be discussed in turn. Although the Court has attempted to satisfy every factor, the most important factor is avoiding the relocation of individuals. Every Navajo homesite is located on land partitioned to the Navajo Nation, and every Hopi home and ranch site is located on land partitioned to the Hopi Tribe. Second, to the extent possible, the partition line avoids the disruption of grazing areas and other use patterns. In all eases, where some diminution of an individual’s claimed grazing area has occurred, a reasonable grazing area remains intact or is adjacent to other areas grazed by members of the same Tribe. Third, while the Court attempted to partition 50% of the joint use area acreage to the Hopi Tribe it was not possible without including Navajo homesites on the land partitioned to the Hopi Tribe. The acreage of the Hopi exclusive area in 1934 was 22,675. The acreage of the joint use area was 152,843 acres (after subtracting the acreage of the excluded lands on the southern Moenkopi Plateau). The partition line delineated in this Order gives the Hopi Tribe 60,518 acres, which is the exclusive area acreage plus approximately 25% of the joint use area acreage. Partition of less than 50% of the joint use area to the Hopi Tribe is an equitable result. Although the Court had held that Hopi use of the joint use area was substantial and sufficiently intensive to create a property interest, the evidence was clear that Hopi use was not as intensive as Navajo use of the joint use area in 1934, especially on the northeastern Moenkopi Plateau, Coal Mine Mesa and the southern Moenkopi Plateau. The evidence was not specific enough to quantify a percentage of Hopi use of the joint use area, but it is equitable that the Hopi Tribe receive less than 50% of the area. Further, all areas currently used — and used in any significant way by Hopis in 1934 are partitioned to the Hopi Tribe. Fourth, the Court attempted to distribute water sources equitably,' so that every grazing area has access to water. The “Lazy Ranch” windmill, the Little Hollow Place windmill, the springs on the western escarpment of the Moenkopi Plateau north of View Point Well, the Owls Cap windmill, Crater Well and the springs on the northeastern Moenkopi Plateau, and Ironwood Springs are partitioned to the Hopi Tribe. The Hopis also may utilize Moenkopi Wash adjacent to their partitioned land. The Navajos have as a part of their reservation the windmill at Lice Hill, Whitehorse windmill, Rock Pile windmill, Coal Mine Mesa windmill, Little Cowboy windmill, Goldtooth windmill, the southern springs on the western escarpment of Moenkopi Plateau (Spring on the Rocks and View Point Well), Salt Water windmill, Where the Hills End windmill, and the use of Moenkopi Wash adjacent to the land partitioned to the Navajos. Pasture Canyon Reservoir will be addressed in a later paragraph. The windmill at Little Hollow Place is used intensively by Hopis (including Jonathan Phillips, Robert Charley, Pierson Honahni, and the Lazy Ranch outfit) and Navajos (including Haskey Littleman, Frank White-rock, Tony Billy, Gee Flatrock, Howard Be-gay, Alice Edison, Helen George, Lillie Walker, Edith Billy, and Eleanor Williams, some of whom haul water from this source). This windmill will be on land partitioned to the Hopi Tribe to avoid the relocation of the Hopi ranch sites in Little Hollow. Because the partition line is drawn immediately east of the windmill, the Hopi Tribe will be ordered to install a pipe from Little Hollow Place windmill to troughs outside the boundary line (on the assumption that a fence will be built). This pipe must deliver sufficient water for the livestock belonging to the Navajo individuals listed above, up to a maximum of one half of the water produced by Little Hollow Place windmill. The Hopi Tribe will be required to install the pipe within 90 days of a final order of partition; the pipe and any trough shall be maintained by the Navajo Nation. Although Rock Pile windmill is also immediately adjacent to the partition line, no Hopi individual testified that they used that water source for their livestock. The Navajo Nation will .therefore not be ordered to provide water from Rock Pile windmill to troughs inside the partition line. Fifth, the partition line ensures the feasibility of future administration of the partitioned areas. The partition line is in straight lines when possible to facilitate fencing. Further, the western boundary of the land partitioned to the Hopi Tribe is the western escarpment of the Moenkopi Plateau, and part of the northern boundary follows the mid-point of Moenkopi Wash, so that no fencing is necessary in these areas. It was not possible to make the land partitioned to the Hopi Tribe contiguous to the existing Hopi Reservation. The joint use area in 1934 did not extend to the border of the 1882 Reservation, and that area could thus riot be partitioned to the Hopi Tribe. Moreover, the land partitioned to the Hopi Tribe is connected to the Hopi Reservation by Highway 264, which travels directly from the Village of Moenkopi to the Hopi villages on the mesas. In the modern world of transportation, this connection is perhaps more important than contiguity of land. A few areas require special consideration, including the partition of Pasture Canyon, the partition to the Navajo Nation of land north of the Moenkopi Wash at the western end of Kerley Valley (on which two Hopi farms are located), and the partition to the Navajo Nation of land on which the Tuba City sewage lagoons are located. In Pasture Canyon, the Hopi Tribe will be partitionéd the land within Pasture Canyon from the southern border of the old “Government Pasture” (now the southern border of the Navajo farms), to Highway 160. Navajo Sites 108,103, and 110 will remain on Navajo land, as the land partitioned to the Hopi Tribe is restricted to the confines of the canyon walls, and a southerly extension of the canyon walls to Highway 160. Across Highway 160, this connects with “Reservoir Canyon”, which also will be partitioned to the Hopi Tribe. The area partitioned to' the Hopi Tribe includes the Hopi farms south of the old Government Pasture, Pasture Canyon Reservoir, and the park area which extends south from Pasture Canyon Reservoir to Highway 160. This Court will order that as long as the land south of the Reservoir remains a park area, the public has a license and/or easement to utilize the park for recreational purposes. If the area ceases to be used as a park, the Hopi Tribe may petition the Court for termination of the license and/or easement after public notice and hearing. Pasture Canyon Reservoir is partitioned to the Hopi Tribe because there was substantial evidence that Hopis have always maintained the Reservoir and its irrigation system. The irrigation ditches running through the Navajo farms in the old ,Government Pasture from springs at the head of Pasture Canyon must be maintained in order to ensure that water flows to the reservoir. The evidence shows that at least some of the Navajos farming in Pasture Canyon have not adequately maintained the irrigation ditches running across their farms. The Court will thus grant the Hopi Tribe an easement to maintain the ditches running across the Navajo farms, with access for those purposes to occur after reasonable notice to the Navajo Nation and to the individual Navajos farming in Pasture Canyon. This Court will retain jurisdiction to consider- any injunctive relief and/or damages claims against the Navajo Nation respecting disturbance or damage to the irrigation ditches by Navajo individuals or livestock. There was evidence that a number of Navajos water and graze livestock within Pasture Canyon. This Court will grant those Navajo families presently using Pasture Canyon Reservoir a license and/or easement to water their livestock. This license and/or easement does not extend to grazing Navajo livestock within the section of Pasture Canyon partitioned to the Hopis, including at the sides of the Reservoir (except for that grazing impossible to prevent while watering animals). If the Hopi Tribe chooses to build a pipeline from the Reservoir to troughs on the eastern and western sides of the Reservoir (outside of the boundary), or some other measure which will ensure a continuous water supply for Navajo livestock, the Hopi Tribe may petition this Court for termination of the license and/or easement. Next, in order to arrive at a partition line which was administratively feasible, the Court avoided the creation of small “islands” of Hopi or Navajo land within land partitioned to the other Tribe. Thus, the Court will partition land on the north side of Moenkopi Wash at the western end of Kerley Valley to the Navajo Nation. A few Hopi farms are located in this area, including fields belonging to Eugene Kaye and Steven Albert. See, Ex. 4437 (Honyumptewa’s map of farms in Kerley Valley). Eugene Kaye testified that he started farming this field only four years ago and it had generated very little production. Further, Kaye was not sure whether Albert had planted this field this year. 3 TT 444-45, 461. Eugene Kaye has other fields: a field southwest of the Village of Moenkopi within the Moenkopi Administrative Unit, a field east of the Village in the Moenkopi Spring area, and two fields in Pasture Canyon. 3 TT 442-43; see, Exs. 4437 and 4438. Steven Albert also has a farm in Reservoir Canyon (below Highway 160). See, Ex, 4437. The only Navajo field on the south side of Moenkopi Wash belongs to Lena Canyon; she also has ceremonial hogans and other structures south of the wash. 8 TT 1193-75. However, since this is adjacent to the Navajo allotments, which extend south of the Wash and will be partitioned to the Navajo Nation, partitioning Lena Canyon’s field and ceremonial area to the Navajo Nation will not create an “island” of Navajo interest. The partition line will be drawn immediately east of the bluff separating Canyon’s field and ceremonial area from the Hopi farms south of the Wash. Next, the land on which the Tuba City sewage lagoons are located will be partitioned to the Navajo Nation. There is no current Hopi use south of Moenkopi Wash west of the Hopi farms in the “Masaaw” area. Further, the sewage lagoons were built with Navajo tribal funds and a grant from the Public Health Service. See, Ex. 5513 (Memo from General Superintendent, Navajo Agency, to Area Director, dated June 30, 1965). The Navajo Nation and Hopi Tribe agreed that the Navajo Nation could construct the sewage lagoons if the Village of Moenkopi could utilize the sewage services in a non-discriminatory manner. See, Ex. 4132 (Memo from Irving Billy, Tuba City Agency Superintendent, to Area Director, Navajo Area Office, dated July 8, 1981, and attached agreement). Any agreements between the Navajo Nation and Hopi Tribe regarding the use of the sewage lagoons are unaffected by this partition. CONCLUSIONS OF LAW The Navajo-Hopi Land Settlement Act, 25 U.S.C. § 640d et seq., grants this Court jurisdiction to settle title to the 1934 Reservation. 25 U.S.C. § 640d-7 provides that lands in which the Court found the Navajo have exclusive interest will remain a part of the Navajo Reservation, that lands in which the Hopi have an exclusive interest will become a reservation for the Hopi Tribe, and that lands in which the Navajo and Hopi have a joint or undivided interest shall be partitioned by the Court “on the basis of fairness and equity”. Both the surface and subsurface rights to the 1934 Reservation will be partitioned. In the partition of the 1882 Reservation, only the surface rights were subject to partition. 25 U.S.C. § 640d-6 provides: Partition of the surface of the lands of the joint use area shall not affect the joint ownership status of the coal, oil, gas, and all other minerals within or underlying such lands ... Section 640d-6 does not apply to the areas jointly used by the Navajo and Hopi on the 1934 Reservation. Section 640d(a) specifies that the language “joint use area” in the statute refers to “lands within the reservation established by the Executive order of December 16, 1882, except land management district no. 6.” The legislative history lends support for the conclusion that Congress intended this Court to partition the surface and subsurface rights to the 1934 Reservation. The title of the House report accompanying H.R. 10337, which amended, was adopted as the Navajo-Hopi Settlement Act, reads: “Authorizing the partition of the surface rights in the joint use area of the 1882 Executive order Hopi Reservation and the surface