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<A HREF="http://www.navajohopiobserver.com/news3.htm">Navajo
Hopi
Observer
News</A>
http://www.navajohopiobserver.com/news3.htm
March 20, 2000
Hopi Exclusion Ordinance Upheld
KYKOTSMOVI, Ariz. -- During the first morning of the Hopi
Tribe's
administrative hearing to exclude Arlene Hamilton from the Hopi
Reservation,
Hearing Officer Coochise denied the defendant's motion to dismiss
the
proposed exclusion. In addition, the motion to strike Hopi Tribal
Ordinance
46 known as the "exclusion ordinance" on the grounds
that it was vague was
also denied.
In his opening statement of March 15, John Trebon, attorney
for Arlene
Hamilton stated that Ms. Hamilton's actions on the Hopi Partitioned
Lands had
"no detrimental effect on the Hopi" and that Ordinance
46 constituted cruel
and unusual punishment for his client.
General Counsel for the Hopi Tribe, Scott Canty, stated that
Ms. Hamilton
should not be allowed to hide her unlawful behavior behind the
First
Amendment, referring to Hamilton's activities including alleged
illegal
construction on the Hopi Partitioned Lands. "This is first
and foremost the
Hopi Reservation, land set aside for the exclusive use and benefit
of the
Hopi People. Ordinance 46 is the method by which the Hopi regulate
use of the
Hopi Reservation. This right of the Hopi is the crux of the case."
Asked about her observance on the day's hearing, Lenora Lewis,
Hopi Observer
from the Village of Upper Moenkopi replied, "Arlene Hamilton's
defense says
that she did no harm to the Hopi people. Yet it was clear from
the witnesses
that she built structures on Hopi land without a permit and is
trying to
convince the Hearing Officer that something is wrong with the
law and that he
should throw it out. She then claims that she is doing nothing
unlawful. This
is a new twist on her defense. Every time she breaks the law she
can just say
it wasn't her fault but the Ordinance's for interpreting her behavior
as
illegal. I'm glad the Hearing Officer didn't agree with her."
Eugene Kaye, witness for the Hopi Tribe, testified that Ms.
Hamilton was
never given a permit to hold her "education camp" nor
to construct buildings
for the camp on the HPL. "In practice," he said "she
has continued to violate
the law."
In Hamilton's defense, Trebon argued that Hamilton is the Chief
Negotiator
for the Navajo and has authority from President Kelsey Begaye
of the Navajo
Nation to represent and negotiate on his behalf. Among her alleged
negotiations on record are requests for wells to be rehabilitated
and to hold
the Sun Dance at Camp Anna Mae on the HPL.
"This is news to the Hopi Tribe. We have a direct government-to-government
relationship with the Navajo Nation. Arlene Hamilton has never
provided us
with a letter from President Begaye that she is his official representative
in any capacity or for any matter. I'm sure President Begaye will
be more
than happy to clear this matter up for the Hopi Tribe," stated
Rachel
Sakiestewa Scott, Hopi Tribal Council Representative who attended
the hearing.
In reference to the Sun Dance, Trebon argued that the Hopi
Tribe had
previously acquiesced to "permitting" the Sun Dance
to continue when
roadblocks set-up by the Bureau of Indian Affairs Law Enforcement
and Hopi
Rangers allowed participants to go to the Sun Dance site, and
then by analogy
arguing that in Hamilton's case, by not writing to inform her
that her
request for a permit was denied, had acquiesced to giving her
a permit for
her activities.
"This was clearly not the case," stated Kaye. "Public
safety was the highest
consideration," referring to the Hopi Tribe's roadblock to
prevent
individuals from attending the Sun Dance event. "To put someone's
life up
front was not worth the trouble. We feared that any confrontation
with the
Sun Dance participants could endanger lives. It did not mean that
we gave
permission for the Sun Dance to continue. It meant that there
are certain
individuals that will continue to disobey Hopi law."
The hearing continued on March 16. "A non-member who enters
the jurisdiction
of the Tribe remains subject to the risk that the Tribe will later
exercise
its sovereign power," quoted Canty, citing Supreme Court
case Merrion v.
Jicarilla Apache Tribe in response to Hamilton's argument that
the Hopi Tribe
had lost the ability to exclude her from the Hopi Reservation
by its failure
to do so over the last seventeen years.
Hamilton was issued a Notice of Proposed Exclusion from the
Hopi Reservation
by Chairman Wayne Taylor on June 14, 1999, for organizing an educational
camp, erecting structures on the Hopi Reservation, failing to
comply with the
tribe's order to remove unauthorized structures placed on Hopi
land, and for
remaining on the Hopi Reservation without authorization from the
Hopi Tribe.
On May 28, 1999, Hamilton wrote a letter to the tribe requesting
a permit to
erect temporary structures on the Hopi Reservation for the educational
camp.
Before she even requested a permit and while her request was pending,
Hamilton proceeded to erect several structures. Also on May 28,
the Hopi
Tribe issued Hamilton a Notice to Cease New Construction and/or
Trespass on
Hopi Tribal Lands. On June 7, a second Notice was issued to Hamilton
after an
additional structure was erected for the educational camp in disregard
of the
first notice. In June, Hamilton's request for a permit was denied.
When asked if she had received and read the Notice to cease
new construction
and trespass, she said, "I had no idea what this paper meant.
I did not
realize the consequences of this paper." When asked under
what authority she
proceeded to erect structures without permission from the Hopi
Tribe,
Hamilton replied, "I thought I had verbal permission."
In papers filed in connection with the hearing, the Tribe explained
that the
principles underlying the tribes power to protect it's lands from
unauthorized entry have their basis in tribal sovereignty and
federal law. In
one of the nations first Indian law cases before the United States
Supreme
Court, Worchester v. Georgia, Justice John Marshall stated, "The
Cherokee
Nation, then, is a distinct community, occupying its own territory,
with
boundaries accurately described, in which the laws of Georgia
can have no
force, and which the citizens of Georgia have no right to enter
but with the
assent of the Cherokees themselves, or in conformity with treaties,
and with
acts of Congress."
According to Cedrik Kuwaninvaya, a member of the Hopi Tribal
Council, "This
principle is at the heart of the Hopi case against Hamilton."
"Hopefully this case will help lay to rest the notion
that the Hopi
Reservation is a lawless third world country. Individuals like
Arlene
Hamilton think they can come onto the Hopi Reservation and do
as they please
without respect for the people and the laws that govern our land.
She acted
as her own judge and decided that she would do as she pleased
without
authorization. It's like saying, I don't have a drivers license
but I think
it's okay for me to drive on the highways," stated Scott.
Trebon argued that Hopi law did not apply to teepees and that
Hamilton served
as an agent or employee of the Weaving for Freedom camp and that
such status
qualified her for an exception from exclusion under Hopi Tribal
Ordinance 46.
Trebon also asked Coochise to consider basic fairness for his
client.
In his closing, Canty stated that the Hopi Tribe in its capacity
as a
sovereign nation has the power to exclude nonmembers from the
Hopi
Reservation. "The very foundations of Federal Indian Law
are premised in part
on the recognition of the right of Indian tribes to exclude non-members
from
their lands," he said.
"As a matter of public policy," Canty said referring
to Hamilton's activities
on the Hopi Reservation that required authorization, "you
proceeded without
permission, you ignored the law and encouraged others to engage
in similar
lawless behavior."
The proposal to exclude an individual from the Hopi Reservation
is a
multi-step process. Departments such as the Office of Hopi Lands
refer cases
to the Office of the Chairman for consideration that is also shared
with the
Hopi Tribal Council and the Land Team. Following the due process
hearing
afforded the defendant, a recommendation from Coochise to Chairman
Taylor
will either recommend exclusion or denial of the exclusion for
Hamilton.
Coochise indicated that he expected to issue a decision within
45 days.
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