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U.S. Code as of:
01/19/04
Section 640d-5. Considerations and guidelines for preparation of report by Mediator and final adjudication by District Court
The Mediator in preparing his report, and the District Court in
making the final adjudication, pursuant to section 640d-3 of this
title, shall consider and be guided by the decision of the Healing
case, under which the tribes have joint, undivided, and equal
interests in and to all of the joint use area; by any partial
agreement reached by the parties under section 640d-2(b) of this
title; by the last best offer for a complete settlement as a part
of the negotiating process by each of the tribes; and by the
following:
(a) The rights and interests, as defined in the Healing case, of
the Hopi Tribe in and to that portion of the reservation
established by the Executive order of December 16, 1882, which is
known as land management district no. 6 (hereinafter referred to as
the "Hopi Reservation") shall not be reduced or limited in any
manner.
(b) The boundary lines resulting from any partitioning of lands
in the joint use area shall be established so as to include the
higher density population areas of each tribe within the portion of
the lands partitioned to such tribe to minimize and avoid undue
social, economic, and cultural disruption insofar as practicable.
(c) In any division of the surface rights to the joint use area,
reasonable provision shall be made for the use of and right of
access to identified religious shrines for the members of each
tribe on the reservation of the other tribe where such use and
access are for religious purposes.
(d) In any partition of the surface rights to the joint use area,
the lands shall, insofar as is practicable, be equal in acreage and
quality: Provided, That if such partition results in a lesser
amount of acreage, or value, or both to one tribe such differential
shall be fully and finally compensable to such tribe by the other
tribe. The value of the land for the purposes of this subsection
shall be based on not less than its value with improvements and its
grazing capacity fully restored: Provided further, That, in the
determination of compensation for any such differential, the
Federal Government shall pay any difference between the value of
the particular land involved in its existing state and the value of
such land in a fully restored state which results from damage to
the land which the District Court finds attributable to a failure
of the Federal Government to provide protection where such
protection is or was required by law or by the demands of the trust
relationship.
(e) Any lands partitioned to each tribe in the joint use area
shall, where feasible and consistent with the other provisions of
this section, be contiguous to the reservation of each such tribe.
(f) Any boundary line between lands partitioned to the two tribes
in the joint use area shall, insofar as is practicable, follow
terrain which will facilitate fencing or avoid the need for
fencing.
(g) Any claim the Hopi Tribe may have against the Navajo Tribe
for an accounting of all sums collected by the Navajo Tribe since
September 17, 1957, as trader license fees or commissions, lease
rental, or proceeds, or other similar charges for doing business or
for damages in the use of lands within the joint use area, shall be
for a one-half share in such sums.
(h) Any claim the Hopi Tribe may have against the Navajo Tribe
for the determination and recovery of the fair value of the grazing
and agricultural use of the lands within the joint use area by the
Navajo Tribe and its individual members, since September 28, 1962,
shall be for one-half of such value.
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