B-203827 L/M, DEC 14, 1981

B-203827 L/M, DEC 14, 1981

DIGEST: 1 - UNDER THE NAVAJO AND HOPI INDIAN RELOCATION ACT, HEADS OF HOUSEHOLD WHO ARE TEMPORARILY AWAY FROM THE RELOCATION AREA BUT WHOSE FAMILIES REMAIN IN THE AREA AND ARE THEREFORE REQUIRED TO ACTUALLY RELOCATE MAY BE CONSIDERED "RESIDENTS" WHO ARE ELIGIBLE TO RECEIVE RELOCATION BENEFITS UNDER THE ACT. 2 - REGULATIONS ISSUED TO IMPLEMENT NAVAJO AND HOPI INDIAN RELOCATION ACT MAY BE INTERPRETED TOO BROADLY SO AS TO MAKE RELOCATION PAYMENTS TO INDIVIDUALS WHO WERE NOT INTENDED TO BENEFIT FROM THE ACT. NAVAJO AND HOPI INDIAN RELOCATION COMMISSION MUST INTERPRET ITS REGULATIONS SO THAT ONLY "TEMPORARILY AWAY" HEADS OF HOUSEHOLD WHOSE FAMILIES REMAIN IN THE RELOCATION AREA ARE ELIGIBLE FOR BENEFITS.

JAMES A. MCCLURE, UNITED STATES SENATE:

YOU HAVE ASKED US TO RE-EVALUATE THE RESIDENCY CRITERIA APPLIED BY THE NAVAJO AND HOPI INDIAN RELOCATION COMMISSION TO DETERMINE WHICH INDIANS ARE ENTITLED TO RECEIVE RELOCATION BENEFITS UNDER PUBLIC LAW 93 531, 25 U.S.C. SECS. 640D ET SEQ. (ACT). THE ACT AUTHORIZES THE COMMISSION TO MAKE PAYMENTS TO NAVAJO AND HOPI INDIANS WHO "RESIDE" IN AREAS PARTITIONED TO THE TRIBE OF WHICH THEY ARE NOT A MEMBER. YOU ARE CONCERNED BY OUR FINDING IN A REPORT TO YOUR SUBCOMMITTEE THAT "ABOUT 75 PERCENT OF THE HOUSEHOLDS THAT HAVE RECEIVED RELOCATION BENEFITS AS OF DECEMBER 1980 WERE NOT PHYSICALLY LOCATED ON THE PARTITIONED AREAS." (SEE CED-81-139, B-203827, JULY 2, 1981)

YOUR VIEW IS THAT THE ACT ONLY PROVIDES BENEFITS TO THOSE "ACTUALLY RESIDING" IN THE PARTITIONED AREA WHO RELOCATE, AND THAT IT WAS NOT INTENDED TO ESTABLISH AN INDIAN CLAIMS SETTLEMENT PROGRAM. THE COMMISSION, HOWEVER, HAS BEEN PROVIDING BENEFITS TO SO-CALLED "TEMPORARILY AWAY" RESIDENTS, WHOM IT DEFINES AS "THOSE INDIVIDUALS WHO ARE TEMPORARILY AWAY FROM THE PARTITIONED AREA DUE TO EMPLOYMENT OR OTHER REASONS, BUT WHO HAVE MAINTAINED SUBSTANTIAL AND RECURRING CONTACTS WITH THE HOME SITE." THE COMMISSION HAS JUSTIFIED THESE PAYMENTS TO YOUR SUBCOMMITTEE ON THE BASIS OF OUR INTERPRETATION OF "RESIDENT" SET FORTH IN OUR DECISION, B-114868.18, AUGUST 9, 1978. YOU HAVE ASKED US TO REVIEW THE DEFINITIONS OF THE TERMS "RESIDENT" AND "TEMPORARILY AWAY" AS THE COMMISSION USES THEM TO DETERMINE RELOCATION BENEFIT ELIGIBILITY.

WE AGREE THAT THE CONGRESS DID NOT INTEND THAT THE ACT'S RELOCATION BENEFIT PROVISIONS ESTABLISH AN INDIAN CLAIMS SETTLEMENT PROGRAM. HOWEVER, WE DO NOT BELIEVE THAT A PERSON MUST BE PHYSICALLY PRESENT IN THE JOINT USE AREAS TO BE ELIGIBLE FOR RELOCATION BENEFITS. WE PREVIOUSLY ADVISED THE COMMISSION THAT THERE MAY BE CIRCUMSTANCES IN WHICH PROVIDING BENEFITS TO A PERSON WHO IS TEMPORARILY AWAY FROM THE JOINT USE AREAS WOULD BE CONSISTENT WITH THE PURPOSES OF THE RELOCATION PROVISIONS. HOWEVER, AS DISCUSSED BELOW, WE BELIEVE THAT THE COMMISSION'S REGULATIONS, AS CURRENTLY DRAFTED, COULD BE APPLIED SO THAT PERSONS WOULD RECEIVE BENEFITS WHO WERE NOT INTENDED TO BE COVERED BY THE RELOCATION PROVISIONS.

WE ISSUED OUR 1978 DECISION IN RESPONSE TO THE COMMISSION'S REQUEST THAT WE DETERMINE WHICH OF SEVERAL LEGAL POSITIONS CONCERNING WHO MAY BE CONSIDERED A RESIDENT FOR PURPOSES OF QUALIFYING FOR RELOCATION BENEFITS WERE CONSISTENT WITH THE INTENT OF THE ACT. IN MAKING THIS DETERMINATION, WE FOUND NOTHING IN EITHER THE STATUTE OR ITS LEGISLATIVE HISTORY WHICH INDICATED THE MEANING OF THE WORD "RESIDE." WE SAID, THEREFORE, THAT THE COMMISSION HAD SOME DISCRETION IN DECIDING WHO IT CONSIDERED TO BE RESIDENTS, PROVIDED ITS DETERMINATIONS WERE CONSISTENT WITH THE ACT'S PURPOSES.

SPECIFICALLY, WE FOUND THAT PROVIDING RELOCATION ASSISTANCE TO INDIVIDUALS DESCRIBED IN TWO OF THE LEGAL POSITIONS SUBMITTED BY THE COMMISSION, BUT NOT IN A THIRD, WOULD BE CONSISTENT WITH THE ACT'S PURPOSES. IN OUR VIEW, THE COMMISSION COULD PROVIDE BENEFITS TO PERSONS WHO HAD TEMPORARILY MOVED AWAY FROM THE RELOCATION AREAS TO EARN A BETTER LIVING FOR THEIR FAMILIES THAT STAYED BEHIND ON THE OLD HOMESTEAD. AS WE STATED, SUCH PERSONS MAY RETAIN OWNERSHIP OF THE HABITATION AND IMPROVEMENTS. WE ALSO HELD THAT THE COMMISSION COULD PAY BENEFITS TO PERSONS WHO HAD LEFT THE PARTITIONED AREA AS MUCH AS 15 YEARS AGO FOR ECONOMIC REASONS BUT WHO RETURN ON WEEKENDS AND HOLIDAYS TO VISIT THEIR FAMILIES AND TEND THEIR ORCHARDS, GARDENS, AND LIVESTOCK. WE STATED THAT, "IF SUCH PERSONS CAN BE REGARDED AS HEADS OF THE HOUSEHOLDS WHICH REMAINED BEHIND ON THE HOMESTEAD, RETAIN A PROPERTY INTEREST IN THE HOUSE, IMPROVEMENTS, OR LIVESTOCK, AND RETURN REGULARLY TO CARE FOR THEIR PROPERTY, WE BELIEVE THEY TOO MAY BE REGARDED AS 'RESIDING IN THE AREA.'" WE REJECTED THE POSITION SUBMITTED THAT, BECAUSE OF THE POWERFUL SPIRITUAL TIES EVERY INDIAN FEELS FOR HIS RESERVATION HOME, AN INDIAN ALWAYS REMAINS A RESIDENT NO MATTER HOW MANY YEARS HE IS FORCED TO LIVE AWAY FROM HIS TRIBE FOR ECONOMIC OR OTHER REASONS.

OUR VIEW IS CONSISTENT WITH THE RELOCATION PROVISION'S PURPOSE. CONGRESS PASSED THE ACT TO PROVIDE FOR THE FINAL SETTLEMENT OF THE CONFLICTING RIGHTS AND INTERESTS OF THE HOPI AND NAVAJO TRIBES IN TWO AREAS OF NORTHEASTERN ARIZONA IN WHICH THEY HELD JOINT, INDIVIDUAL, AND EQUAL INTEREST. SEE H.R.REPT. NO. 93-909, 93D CONG. 2D SESS. 5 (1974); S.REPT. NO. 93-1177, 93D CONG., 2D SESS. 10 (1974). THE AREAS ARE (1) THE JOINT USE AREA OF THE RESERVATION ESTABLISHED BY THE EXECUTIVE ORDER OF SEPTEMBER 16, 1882, AND (2) LANDS LYING WITHIN THE RESERVATION ESTABLISHED BY THE ACT OF JUNE 14, 1934. THESE LANDS HAD BEEN THE SUBJECT OF DISPUTES BETWEEN THE TWO TRIBES EVEN PRIOR TO THE EXECUTIVE ORDER AND 1934 ACT. S.REPT. NO. 93-1177, SUPRA AT 11. OVER TIME, THE TRIBES WERE UNABLE TO END THEIR DISPUTES THROUGH NEGOTIATION OR LITIGATION. THEREFORE, TO PROVIDE A FINAL RESOLUTION, CONGRESS AUTHORIZED JUDICIAL PARTITION OF THE JOINT USE AREA IF THE TRIBES COULD NOT REACH AN AGREEMENT WITH THE HELP OF A FEDERAL MEDIATOR. 25 U.S.C. SEC. 640D-3 (1976). THE TRIBES WERE STILL UNABLE TO REACH AN AGREEMENT AND SO THE UNITED STATES DISTRICT COURT ORDERED THE SURFACE OF THE JOINT USE AREAS PARTITIONED EQUALLY.

CONGRESS INCLUDED THE RELOCATION PROVISIONS IN THE ACT BECAUSE IT BELIEVED THAT THEY WERE NECESSARY TO PERFECT A FAIR RESOLUTION OF THE DISPUTE. CONGRESS DID NOT WANT THE INDIANS WHO WERE DIRECTLY AFFECTED BY PARTITION TO SUFFER ECONOMIC OR SOCIAL HARDSHIP AS A RESULT OF THE ACT.

THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS STATED THAT IT BELIEVED THE UNITED STATES SHOULD BEAR THE MAJOR COSTS OF RESOLUTION "BECAUSE OF THE FEDERAL GOVERNMENT'S REPEATED FAILURE TO RESOLVE THE LAND DISPUTES ..." S.REPT. NO. 93-1177, 93RD CONG., 2ND SESS. 20 (1974). THE TIME OF THE ACT'S PASSAGE THERE WERE HOPIS AND NAVAJOS SITUATED ON LAND IN THE JOINT USE AREA PARTITIONED TO THE TRIBE OF WHICH THEY WERE NOT A MEMBER. PARTITION MEANT THAT THOSE INDIANS SITUATED IN THE AREAS DESIGNATED TO THE OTHER TRIBE WOULD HAVE TO MOVE. CONGRESS WAS GREATLY CONCERNED THAT RELOCATION UNDER THIS ACT SHOULD AVOID REPETITION OF A NUMBER OF PREVIOUS GOVERNMENT RELOCATION EFFORTS. S.REPT. NO. 93-1177, SUPRA AT 19.

TO MEET THIS CONCERN, THE ACT REQUIRES THAT THE COMMISSION'S RELOCATION PLAN:

"(2) TAKE INTO ACCOUNT THE ADVERSE SOCIAL, ECONOMIC, CULTURAL, AND OTHER IMPACTS OF RELOCATION ON PERSONS INVOLVED IN SUCH RELOCATION AND BE DEVELOPED TO AVOID OR MINIMIZE, TO THE EXTENT POSSIBLE, SUCH IMPACTS;" 25 U.S.C. SEC. 640D-12(C)(2) (1976).

ALLOWING BENEFITS TO "TEMPORARILY AWAY" HEADS OF HOUSEHOLD WHO HAVE RETAINED PROPERTY INTERESTS AND THEIR FAMILY HOMESTEADS WITHIN THE JOINT USE AREA IS CONSISTENT WITH CONGRESS' WISH TO REDUCE THE ECONOMIC, SOCIAL AND CULTURAL IMPACT OF RELOCATION.

WE NOTE THAT AFTER WE ISSUED OUR OPINION CONGRESS CONSIDERED BUT DID NOT PASS A PROVISION WHICH WOULD HAVE REQUIRED THAT A HEAD OF HOUSEHOLD PHYSICALLY RESIDE WITHIN THE JOINT USE AREAS IN ORDER TO QUALIFY FOR RELOCATION BENEFITS. SECTION 30(A) OF THE NAVAJO AND HOPI INDIAN RELOCATION AMENDMENTS ACT OF 1980, AS IT ORIGINALLY PASSED THE HOUSE OF REPRESENTATIVES, H.R. 5262, 96TH CONG., PROVIDED:

"SEC. 30. (A) NO PAYMENTS, PURSUANT TO SECTION 14 AND 15(B) OF THIS ACT, SHALL BE MADE TO ANY HEAD OF HOUSEHOLD WHO HAS NOT SIGNED A CONTRACT FOR RELOCATION UNDER EXISTING ELIGIBILITY CRITERIA OF THE COMMISSION PRIOR TO ENACTMENT OF THIS SECTION AND WHO DID NOT, AS DETERMINED BY THE COMMISSION, PHYSICALLY RESIDE WITHIN THE JOINT USE AREAS ON THE DATE SPECIFIED IN SECTION 14(C) OR 15(C), AS THE CASE MAY BE."

THE HOUSE OF REPRESENTATIVES' COMMITTEE ON INTERIOR AND INSULAR AFFAIRS EXPLAINED THE PROVISIONS IN ITS REPORT AS FOLLOWS:

"SECTION 13 OF THE 1974 ACT DIRECTED THE COMMISSION TO INCLUDE IN ITS RELOCATION REPORT THE NAMES OF ALL MEMBERS OF THE TRIBES 'WHO RESIDE WITHIN THE PARTITIONED AREAS' AND PROVIDED THAT SUCH PERSONS WHO ARE HEADS OF HOUSEHOLDS WOULD BE ELIGIBLE FOR RELOCATION BENEFITS. PRESUMABLY, CONGRESS INTENDED THAT ONLY PERSONS PHYSICALLY RESIDING IN THE JOINT USE AREA AS OF THE ABOVE DATES WOULD BE ELIGIBLE FOR RELOCATION BENEFITS; HOWEVER, THIS WAS NOT SPELLED OUT IN THE ACT OR IN THE LEGISLATIVE HISTORY. THE ELIGIBILITY REQUIREMENTS OF THE COMMISSION NOW PERMIT INCLUSION OF PERSONS WHO DID NOT PHYSICALLY RESIDE IN THE JOINT USE AREA IN 1974 AND WHO MAY HAVE BEEN 'TEMPORARILY' ABSENT FOR UP TO FIFTEEN YEARS. THE COMMISSION ESTIMATES THAT OF THE 1,600 TO 1,800 FAMILIES WHO MAY BE EVENTUALLY CERTIFIED ELIGIBLE UNDER EXISTING CRITERIA, ONLY ABOUT 600 TO 800 ACTUALLY RESIDED IN THE JOINT USE AREA ON THE EFFECTIVE DATES.

"RELOCATION COSTS, INCLUDING ALL BENEFITS, NOW AVERAGE APPROXIMATELY $50,000 PER FAMILY. THE TOTAL COST OF RELOCATING 800 FAMILIES WOULD BE LESS THAN HALF AS MUCH AS THE PRESENT ANTICIPATED COSTS. IT IS THE PURPOSE OF THE NEW SECTION TO EXPLICITLY DEFINE THE ORIGINAL INTENT OF CONGRESS WITH RESPECT TO ELIGIBILITY FOR RELOCATION BENEFITS AND YET MAINTAIN THE EXPECTATION OF PERSONS ALREADY SIGNING CONTRACTS FOR RELOCATION." H.R.REPT. NO. 96-544, 96TH CONG., 1ST SESS. 8 (1979).

THE CONFERENCE COMMITTEE DELETED THE PROVISION WITHOUT PROVIDING AN EXPLANATION IN ITS REPORT AND THE LAW AS ENACTED (PUBLIC LAW 96-305, 94 STAT. 929) DID NOT CONTAIN THE PROVISION. THEREFORE, THERE IS NO EXPRESS STATUTORY REQUIREMENT THAT RECIPIENTS PHYSICALLY RESIDE IN THE JOINT USE AREAS.

HOWEVER, THE COMMISSION'S REGULATIONS CONCERNING "TEMPORARILY AWAY" MAY BE TOO BROAD. IN OUR OPINION, TO QUALIFY FOR PAYMENTS, A "TEMPORARILY AWAY" HEAD OF HOUSEHOLD MUST HAVE LEFT BEHIND HIS FAMILY IN THE JOINT USE AREA. IN OTHER WORDS, THE HEAD OF HOUSEHOLD AND HIS FAMILY MUST ACTUALLY NEED TO RELOCATE.

IT IS POSSIBLE UNDER THE COMMISSION'S REGULATIONS, HOWEVER, THAT AN INDIVIDUAL WHO DOES NOT HAVE A FAMILY TO RELOCATE COULD BE CONSIDERED A "RESIDENT." THE APPLICABLE REGULATION, 25 C.F.R. SEC. 700.5(Y) (1980) PROVIDES:

"(1) RESIDENCY IS ESTABLISHED BY ***

(II) MAINTENANCE OF SUBSTANTIAL RECURRING CONTACTS WITH AN IDENTIFIABLE HOME SITE ALTHOUGH THE INDIVIDUAL IS TEMPORARILY AWAY FOR ANY OF THE FOLLOWING REASONS:

(A) EMPLOYMENT, AND SEEKING EMPLOYMENT (B) EDUCATION OR JOB TRAINING (C) MEDICAL (D) MILITARY (ACTIVE DUTY IN THE MILITARY SERVICE) (E) UNAVAILABILITY OF HOUSING (F) INCARCERATION

"(2)(I) ANY ONE OR MORE OF THE FOLLOWING CRITERIA MAY BE CONSIDERED IN ESTABLISHING WHETHER OR NOT THERE HAVE BEEN SUBSTANTIAL RECURRING CONTACTS:

(A) OWNERSHIP OF LIVESTOCK (B) OWNERSHIP OF IMPROVEMENTS (C) GRAZING PERMITS (D) LIVESTOCK SALES RECEIPTS (E)HOME SITE LEASES (F) PUBLIC HEALTH RECORDS (G) MEDICAL AND HOSPITAL RECORDS, INCLUDING THOSE OF MEDICINEMEN (H) TRADING POST RECORDS (I) SCHOOL RECORDS (J) MILITARY RECORDS (K) EMPLOYMENT RECORDS (L) MAILING ADDRESS RECORDS (M) BANKING RECORDS (N) DRIVERS LICENSE RECORDS (O) VOTING RECORDS (TRIBAL AND COUNTY) (P) HOME OWNERSHIP OR RENTAL OFF THE DISPUTED AREA (Q) B.I.A. CENSUS DATA (R) CERTIFICATION FROM CHAPTER OFFICIALS (S) CERTIFICATION OF RESIDENCY (T) CERTIFICATION BY RELOCATEE (U) INFORMATION OBTAINED BY CERTIFICATION FIELD INVESTIGATION (V) SOCIAL SECURITY ADMINISTRATION (W) MARITAL RECORDS (X) COURT RECORDS (Y) RECORDS OF BIRTH (Z) JOINT USE AREA ROSTER

(AA) ANY OTHER RELEVANT DATA" UNDER THIS REGULATION, IT WOULD BE POSSIBLE FOR AN INDIVIDUAL TO MEET ITS REQUIREMENTS AND THEREFORE BE DETERMINED TO BE A "RESIDENT" EVEN THOUGH HE DID NOT HAVE A FAMILY TO RELOCATE. THE REGULATION'S TEST FOR ELIGIBILITY CONTAINS TWO ELEMENTS. AN INDIVIDUAL MUST HAVE "AN IDENTIFIABLE HOME SITE" AND HE MUST HAVE "SUBSTANTIAL RECURRING CONTACTS" WITH THAT HOME SITE. THE REGULATION DOES NOT MAKE CLEAR WHAT IS MEANT BY "AN IDENTIFIABLE HOME SITE." CONCEIVABLY, AN INDIVIDUAL COULD HAVE AN IDENTIFIABLE HOME SITE (WITH WHICH HE HAS SUBSTANTIAL RECURRING CONTACTS) WITH NO FAMILY ON IT IN NEED OF RELOCATION. ACCORDINGLY, IN OUR OPINION, THE COMMISSION MUST INTERPRET ITS REGULATIONS SO THAT ONLY PERSONS WITH FAMILY TO RELOCATE ARE ELIGIBLE FOR BENEFITS. IN YOUR LETTER YOU STATE, "SIGNIFICANT SAVINGS TO THE GOVERNMENT WOULD BE REALIZED IF PAYMENTS WERE PROVIDED ONLY TO THOSE INDIVIDUALS AND FAMILIES WHO MUST ACTUALLY MOVE." WE STATED IN OUR 1978 DECISION THAT ALTHOUGH THE COMMISSION HAS SOME LATITUDE TO DETERMINE WHO IS ELIGIBLE FOR RELOCATION BENEFITS, AS A PRACTICAL MATTER THE COMMISSION MIGHT NEED TO ADOPT A NARROWER INTERPRETATION OF "RESIDENT" IF IT FOUND THAT THE AMOUNT OF FUNDS AUTHORIZED IN THE ACT WERE NOT SUFFICIENT TO COVER THE COST OF RELOCATING PERSONS WHO WOULD BE ELIGIBLE FOR BENEFITS UNDER A BROADER INTERPRETATION. ULTIMATELY, CONCERNS OVER REDUCING THE AMOUNT OF GOVERNMENT EXPENDITURES FOR RELOCATING THE NAVAJO AND HOPI INDIANS CAN BE MET, AND UNCERTAINTIES OVER ELIGIBILITY QUALIFICATIONS CAN BE RESOLVED, BY EITHER PROVIDING A LIMITATION IN THE COMMISSION'S APPROPRIATION ACT OR BY AMENDMENTS TO ITS AUTHORIZING LEGISLATION.