From: DINETAH29@aol.com
Date: Sun, 1 Aug 1999 20:47:53 EDT
Subject: Status of 9th Circuit Court
I just returned from the land, traveling with LA supporters
to meet with
several elders that have animals on the Winslow tract. A meeting
between the
Dineh and the Vet and other responsible persons is being scheduled
for next
Sunday, August 8. The situation out there is critical.
It has just been confirmed that there will be no hearing on
August 12 or 13
at the 9th Circuit Court in San Francisco. I just found out that
the 9th
Circuit Court has taken the oral argument off their calendar.
We do not know
at this time what date the argument will be rescheduled to.
I appreciate and thank you for your concern about my well being.
Since we are
fast approaching the deadline. and there are so many crises,
I have found
myself spending most of my time traveling throughout HPL conducting
outreach.
Recently, I have gone through a few Hopi blockades and checkpoints
while I
conducted outreach throughout HPL and attended two Sundances.
I believe the
officers may have been preoccupied by other matters. I also believe,
as the
response to my Proposed Order of Exclusion that follows states,
that I may be
exempt from Exclusion based on the wording contained in the Hopi
Tribal
Exclusion Ordinance which specifically exempts legal assistants
from
Exclusion. If the Hopi Tribal Council refuses to accept the response
submitted then a hearing will be scheduled for me in the Hopi
Tribal Court.
Urgent needs: In order to remain in touch, we urgently need
a cellular phone
with service, a laptop with modem and cellular access to internet.
Please
contact our fiscal agent (Steve Sugarman) if you can help. As
you know,
time is of the
essence.
Thank you for your concern.
Yours sincerely,
Marsha Monestersky
Consultant to Sovereign Dineh Nation
----------------------------------------------------------------------
Text of response to the Hopi Tribe submitted from the:
Law Office of
Charles M. Miller
225 Bush Street-16th floor
San Francisco, CA 94104
Telephone: (415) 439-8357
Facsimile: (415) 439-8358
Cellular: (415) 608-0635
e-mail: cms@charles-m-miller-aty.com
VIA FAX AND U.S. MAIL
July 2, 1999
Wayne Taylor, Jr.
Chairman, The Hopi Tribe
P.O. Box 123
Kykotsmovi, AZ 86039
RE: NOTICE OF PROPOSED ORDER OF EXCLUSION
MARSHA JOAN MONESTERSKY
Dear Chairman Taylor:
I am writing on behalf of Marsha Joan Monestersky in response
to the Hopi
Tribe's June 14, 1999 Notice of Proposed Order of Exclusion (herinafter
"Proposed Order"). Please consider this letter Ms.
Monestersky's written
response to the Proposed Order pursuant to Hopi Tribal Ordinance
$ 46.02.02.
As a preliminary matter it is noted that the Hopi Tribe proposes
to "exclude
and remove" Ms. Monestersky from the Reservation. (See Proposed
Order, p. 1)
You should be advised that Ms. Monestersky does not reside on
the
Reservation. Therefore, the Proposed Order is incorrect to the
extent it
seeks to remove Ms. Monestersky from the Reservation because she
resides
there. Therefore, we will only address the several reasons why
Ms.
Monestersky, as a nonresident of the Reservation, is not in violation
of Hopi
Ordinance 46 and not subject to exclusion.
For the following several reasons Ms. Monestersky is not in
violation of Hopi
Ordinance 46, and therefore is not subject to exclusion and removal
from the
Hopi Indian Reservation ("Reservation"), as defined
in Section 46.01.08.
I. MS. MONESTERSKY'S PRESENCE ON THE HOPI RESERVATION IS EXEMPTED
BECAUSE
SHE IS A LEGAL ASSISTANT
Pursuant to Section 46.01.06(b) (viii) the following nonmembers
are exempted
from exclusion:
Attorneys and their legal assistants while consulting with
clients who are
included in any other exception in this section; while investigating
claims
on behalf of such clients; while attending the Hopi Indian Tribal
Court on
behalf of their clients; while representing such clients at any
office of the
Hopi Indian Tribe or of the United States during open business
hours and
days; and while representing such clients in any proceeding under
this
Ordinance.
Ms. Monestersky clearly falls within this exemption. As an
attorney, I
represent Navajo families who reside on the Hopi Partitioned Lands
("HPL").
I have retained Ms. Monestersky to be my legal a ssistant and
consultant with
regard to this representation. Ms. Monestersky's presence on
the Reservation
is as a legal assistant consulting with my clients who themselves
are
included under other exemptions in Section 46.01.06. For example,
Ms.
Monestersky's work as a legal assistant includes consulting with
clients who
are authorized to be upon the Reservation "under any law
or regulatino of the
United States," (Section 46.01.06(b) (ii) or who hold "leases,
easements,
licenses, permits, rights-of-way or other approvals." (46.01.06(b)
(iv))
Further, Ms. Monestersky's presence on the Reservation comes
within the other
activities listed in this exemption. For example, her presence
on the
Reservation is often because shw is representing the clients at
offices of
the Hopi Tribe or the United States. It is without question therefore
that
Ms. Monestersky is exempted from Ordinance 46 and not subject
to the Proposed
Order.
II. MS. MONESTERSKY IS EXEMPTED FROM ORDINANCE 46 BECAUSE
SHE IS TRAVELING
ON AND DOING BUSINESS ON THE RESERVATION.
Ordinance 46 exempts the following nonmembers from exclusion:
Nonmembesr traveling upon any open and unrestricted federal
or state highway
system or road within the Hopi Indian Reservation.
Nonmembers visiting or doing business at any offices of the
Hopi Indian Tribe
or of the United States and at any motel, restaurant, gift shop,
or other
business on the Hopi Indian Reservation during open business hours
and days.
Section 46.01.06(v) & (vii)
Ms. Monestersky's activities on the Reservation fall within
both of these
exemptions. While on the Reservation Ms. Monestersky frequently
travels on
the "federal or state highway system," thereby exempting
her from Ordinance
46. Similarly, Ms. Monestersky, while on the Reservation frequently
does
business at the offices of the Hopi Indian Tribe, the United States
or the
other establishments listed in Section 46.01.06(vii). Accordingly,
Ms.
Monestersky is exempted from Ordinance 46.
III. MS. MONESTERSKY CANNOT BE EXCLUDED FROM THE RESERVATION
BECAUSE
ORDINANCE 46 INTERFERS WITH HER RIGHT OF TRAVEL.
A fundamental right of all citizens, protected under the Constitution
of the
United States, is the right of travel. Indeed, the United States
Supreme
Court has stated that "all citizens [are to] be free to travel
throughout the
length and breadth of our land." (Shapiro v. Thompson 394
U.S. 618, 627
(1969))
Ordinance 46 recognizes this fundamental right wherein it exempts
those
"nonmembers who are authorized to be upon the Hopi Indian
Reservation under
any law or regulation of the United States." (Section 46.01.06(b)
(ii)) The
right to travel is protected by the Constitution, which is the
supreme law of
the land. (See U.S. Constitution, Article VI(2))
As previously noted Ms. Monestersky is not a resident of the
Reservation.
Rather, she is present on the Reservation because she is traveling
on the
Reservation. To the extent Ordinance 46 prevents her travel it
is in
violation of Ms. Monestesrky's constitutionally protected right
to travel.
Ms. Monestersky cannot, therefore, be excluded from the Reservation.
IV. THERE ARE OTHER POTENTIALLY COMPELLING REASONS WHY MS.
MONESTERSKY MAY
NOT BE SUBJECT TO ORDINANCE 46.
For several additional reasons Ms. Monestersky may not be subject
to
Ordinance 46. These include the following:
-Whether the Hopi Tribe has jurisdiction over Ms. Monestersky
because of her
involuntary consent to jurisdiction (See Section 46.01.04);
-Whether the Hopi Tribe has jurisdiction over Ms. Monestersky
because she is
not a member of the Hopi Tribe;
-Whether Ordinance 46 applies to Ms. Monestersky because she
is not present
on the Reservation for any of the purposes of Ordinance 46 (See
Section
46.01.03), and
-Whether the Hopi Tribe presently has any authority to exclude
anyone from
the HPL.
Our research into these and any other additional reasons why
Ordinance 46
does not apply to Ms. Monestersky is continuing. We will supplement
this
letter in the near future with a more detailed discussion of these
and other
reasons why Ms. Monestersky cannot be excluded from the Reservation.
V. CONCLUSION
For the following resaons we respectively request that the
Hopi Tribe rescind
its June 14, 1999 Proposed Order. If the Hopi Tribe decides not
to rescind
the Proposed Order then we request a hearing pursuant to Section
46.01.03.
Sincerely,
Charles M. Miller
Law Office of Charles M. Miller
Cc: Ms. Marsha Monestersky