Land talks take place in private
Tribal council goes into executive session to discuss Bennett Freeze

By Kathy Helms
Diné Bureau

WINDOW ROCK — Despite objections to keep Friday's special Intergovernmental Relations Committee meeting open so the Navajo people might have some idea of what they're giving and getting in a proposed Bennett Freeze agreement, IGR voted 6-2 for executive session at the request of the attorney general.

Hopi tribal elders and religious leaders signed off on the agreement in August 2004. Navajo Nation Attorney General Louis Denetsosie said, "You may have read a couple years ago where the Hopi approved the version of this settlement agreement. It's called an intergovernmental compact.

"In reference to the negotiating, we finished the negotiations in January. That's the final copy. The Hopi, for whatever reason, adopted a prior version, so they will have to go back" to the tribal council to have any changes approved, if they so choose, he said.

Denetsosie said he, attorney Terry Fenzel, Navajo-Hopi Land Commission Chairman Raymond Bitsui, the counsel for the Hopi tribe and others met in Washington, D.C. "At that time we gave them the documents and all exhibits."

Rather than revealing details of the agreement at that time, he said, "This agreement we did not want to bring to the council until we had assurance from the federal government that we would be in a position to concur with the terms of the agreement.

"Recently, I've been advised informally that they have no objections in reference to informal concurrence with the documents, so that is the reason why we want to move forth with the legislation adopting the intergovernmental agreement," Denetsosie said.

"It has been a longstanding litigation. It's been since 1974 that it's been ongoing. Mr. Fenzel has been involved in every stage of the litigation and the negotiation. We have had two negotiating teams on this."

Denetsosie said Kelsey Begaye and a prior legislative counsel worked on it first, then when Navajo Nation President Joe Shirley Jr. took office, Denetsosie and Chief Legislative Counsel Raymond Etsitty continued work on the negotiations.

"We've had the assistance of the Navajo-Hopi Land Commission, and attorney Britt Clapham has been there," he said.

"With that we will go ahead and proceed with the substance of the report and I would like to request, that because this is ongoing litigation, that we go into executive session."

IGR member Hope MacDonald-LoneTree (Toh Nanees Dizi/Coalmine Canyon), who represents constituents affected by the Bennett Freeze, objected. "I would like to request that this session be on record," she said.

Delegate Omer Begay Jr. (Cornfields/Greasewood Springs/Klagetoh/Wide Ruins) opposed keeping the session open.

"I think the idea of going on record is a good intent, however, in the long run we would be opening ourselves to the position that we're going to expose ourselves to, and I don't want to see that until the settlement is done. Therefore, I would like to move to go into executive session."

Navajo Nation Council Speaker Lawrence T. Morgan asked for a second on the motion. "As I understand, the report is an hour and a half," he said. Delegate Curran Hannon (Oak Springs/St. Michaels) seconded the motion.

Before going into executive session, in response to a question from MacDonald-LoneTree, attorney Fenzel told IGR members, "I have been the lawyer for the Navajo Nation for almost 32 years, in a very important piece of litigation that involves 7 million acres of Navajo land. We are at the point where the negotiating team would like to present to the council the proposed settlement at this time.

"The Intergovernmental Relations Committee can understand the significance of this only if I discuss the issues in litigation the strengths and the weaknesses of Navajo positions, the classical outcomes, the risks ... If we are not in executive session, I will have a very short presentation and will not say much. I am perfectly happy to do it either way," Fenzel said.

"As Mr. Begaye has said, there is a risk of waiving attorney-client privilege anytime we bring this out in a public meeting, particularly if a member of the press is present, and that is precisely the risks that we would make"by having the discussion in open session, he said.

Executive session was approved 6-2 by IGR, with MacDonald-LoneTree and Leonard Chee offering the dissenting votes.

President Shirley sent a letter June 27 to Speaker Morgan urging a special session so that council could give its approval. "I believe an agreement has been reached and needs to be presented to the Navajo Nation Council for their acquiescence," Shirley said. "I believe the Hopi Tribal Council is doing the same."

Hopi Tribal Chairman Ivan Sidney said, "The agreement now scheduled for presentation to the Navajo Council was delivered to Navajo for their consideration in 2004. It is not the Hopi who is holding back the Navajo people!"