OFFICE OF 

INSPECTOR GENERAL 

U.S.DEPARTMENT OFTHE INTERIOR 

Status of the Office of Navajo 

and Hopi Indian Relocation’s 

Appeals on Denied Eligibility 

Determination Cases 

ONHIR REVIEW 

Report No.: 2020-WR-016-B September 2020 
 

 

 

 

 

 

 

 

 

 

 

 

OFFICE OF 

INSPECTOR GENERAL 

U.S.DEPARTMENT OF THE INTERIOR 

Memorandum 

To: David Bernhardt 

Secretary, U.S. Department of the Interior 

From: Mark Lee Greenblatt 

Inspector General 

Subject: Final ONHIR Review – Status of the Office of Navajo and Hopi Indian 

Relocation’s Appeals on Denied Eligibility Determination Cases 

Report No. 2020-WR-016-B 

This report is part of a series of reports to help decision makers plan for the future of the 

Office of Navajo and Hopi Indian Relocation (ONHIR). We launched our review in December 

2019 with an initial report that provided an overview of ONHIR’s background and functions 

(Report No. 2019-WR-039). 

Our objective for this review was to determine the status of ONHIR’s applicant 

appeals—both active appeals on denied eligibility determinations and cases eligible for appeal. 

Specifically, we sought to answer the following: 

1. What is the status of open appeal cases in the U.S. District Court for the District of

Arizona and the U.S. Court of Appeals for the Ninth Circuit?

2. What is the status of cases eligible for appeal and condition of the case files?

3. What congressional considerations and potential liabilities exist for a successor

agency in the event of ONHIR’s closure or transfer of duties?

Due to the COVID-19 pandemic, we had to limit our fieldwork. In particular, we 

reviewed relevant laws, regulations, procedures, and documents but had to limit our site visits 

and interviews. 

About This Report Series 

ONHIR’s FY 2019 appropriation required a transfer of funds to our office to review 

ONHIR’s finances and operations in preparation for its possible closure.

We are issuing a series of reports that describes ONHIR’s responsibilities, functions, and 

current operations. Each report addresses a key topic and the related considerations for 

ONHIR’s closure or transfer of duties to a successor agency or agencies. 

Office of Inspector General | Washington, DC 
 

 

 

 

 

 

 

 

 

Background 

ONHIR is an independent Federal agency responsible for assisting with the relocation of 

Navajo people and Hopi people living within each other’s boundaries. ONHIR reports directly to 

the President of the United States and is overseen by both the U.S. Office of Management and 

Budget and the U.S. Congress. Pursuant to the Navajo-Hopi Land Settlement Act of 1974 (Pub. 

L. No. 93-531), as amended, a presidentially appointed Commissioner serves as the head of 

ONHIR, but this position has been vacant since 1994. A Senior Executive Service Executive 

Director who has been acting under delegated legal authority manages the agency. 

In addition to making initial determinations regarding eligibility for relocation benefits, 

one of ONHIR’s key functions is managing the administrative appeals process. The appeals 

process for applicants who are denied relocation benefits can potentially span multiple years and 

three levels of Federal courts: the U.S. District Court for the District of Arizona, the U.S. Court 

of Appeals for the Ninth Circuit, and the U.S. Supreme Court. An overview of the process 

follows:1 

Initial request for reconsideration: If an applicant is not found eligible for relocation 

benefits in ONHIR’s initial determination, the applicant may request a hearing for 

reconsideration. As a result of this hearing: 

• If found eligible, the applicant receives relocation benefits. 

• If still not found eligible, the applicant has a 6-year window to file an appeal with the 

District court. If the applicant takes no action during the 6-year window, the case is 

closed. 

Appeal to District Court: If the applicant appeals ONHIR’s denial of relocation benefit 

decision, the District Court will either reverse or affirm the decision. Specifically: 

• If the decision is affirmed, the applicant has 60 days to appeal to the U.S. Court of 

Appeals. If the applicant takes no action during the 60 days, the case is closed. 

• If the decision is reversed, the case is remanded (sent back) to ONHIR for further 

action. ONHIR also can initiate an appeal to the U.S. Court of Appeals. 

Appeal to U.S. Court of Appeals: If the case is taken to the U.S. Court of Appeals, a 

new decision will be made to reverse or affirm the decision of the District Court. Specifically: 

• If the denial of benefits is upheld, the applicant has 90 days to petition for judicial 

review by the U.S. Supreme Court. If the applicant takes no action during that time, 

the case is closed. 

1 The appeals process detailed in this report was informed by ONHIR’s management manual, interviews with ONHIR officials, 

and Federal rules governing trial and appellate court proceedings. 

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• If the denial of benefits is reversed, the case may be remanded to ONHIR. 

ONHIR also has 90 days to petition for review by the U.S. Supreme Court. 

Appeal to U.S. Supreme Court: The U.S. Supreme Court decides whether to accept 

cases for review. The possible outcomes from an applicant or ONHIR petitioning for judicial 

review are the following: 

• If the Court denies the petition and the case is not heard, the U.S. Court of Appeals 

decision will stand.2 

• If the Court hears the case, it will either remand the case to ONHIR or uphold the 

U.S. Court of Appeals decision 

If remanded to ONHIR for reconsideration: Any court may remand the case to 

ONHIR for a new hearing for reconsideration for eligibility of relocation benefits. ONHIR will 

either determine the applicant is eligible and provide relocation benefits or issue another denial 

of benefits, beginning a new 6-year window for appeal. 

According to ONHIR, as of May 2020, 1,351 denied applicants had requested a hearing 

for reconsideration of a denial of benefits decision. Of those applicants, ONHIR certified 521 as 

eligible for benefits without holding a hearing. In the remaining 830 cases, the denials were 

upheld and were therefore eligible for appeal to the District Court level. Of those cases, 259 have 

resulted in eligibility certification. Five of these certified applicants have not claimed their 

benefits. 

Status of Active Appeal Cases 

As of March 2020, ONHIR was defending five Active appeals as of appeal cases in the District Court and two cases in the March 2020: U.S. Court of Appeals. There was also one case that had 

been remanded to ONHIR from the District Court and had a • 5 in District Court 

hearing pending, scheduled for June 2020.3 • 2 in Court of Appeals 

• 1 remanded, pending In addition to these active appeal cases, 212 cases ONHIR hearing were eligible for appeal because the 6-year statute of 

limitation had not yet expired. According to ONHIR, over Cases eligible for 

the years, denied applicants have tended to wait until the appeal: 212 

6-year window was almost up before filing for an appeal. 

Between March and May 2020, nine additional cases were filed for appeals with the District 

Court, at least one of which was filed just 2 days before the 6-year deadline. 

2 According to USCourts.gov, the Supreme Court hears only 100 to 150 appeals of the more than 7,000 cases it is asked to review 

every year.

3 ONHIR provided updated case counts in response to the draft report, but we did not verify these counts. As of June 17, 2020, 

ONHIR reported 8 cases (totaling 13 plaintiffs) in District Court and 3 in the U.S. Court of Appeals; an additional 189 are 

eligible for appeal. 

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If ONHIR closes, its ongoing litigation will require a successor agency to be responsible 

for any appeal cases and to reconsider any decisions reversed by the courts and remanded for 

further action. Additionally, there may be demands for payment of attorney fees by applicants 

whose eligibility denials are reversed in Federal court.4 As there is no clear resolution date for 

these cases, relocation benefits may need to be provided for newly certified applicants for many 

years to come. Currently, if a denial decision is reversed, ONHIR provides relocation benefits 

that include a new home and various services such as assistance with house design, pre- and 

post-move counseling, and a home warranty. 

Status of Cases Eligible for Appeal and Condition of 

Case Files 

In an April 2018 report, the U.S. Government Accountability Office (GAO) found that 

ONHIR’s information on the denied cases eligible for appeal was incomplete.5 In response, 

ONHIR said that this finding was inaccurate and that its eligibility case files were complete and 

up to date. 

During a site visit to ONHIR’s main office in Flagstaff, AZ, in March 2020, we reviewed 

13 case files for applicants who are eligible for appeal. The other files for cases eligible for 

appeal, of which there are more than 200, are stored at the National Archives and Records 

Administration (NARA) office in Perris, CA. Due to the COVID-19 pandemic, the NARA office 

was closed, so we were unable to include additional files in our review sample. We were, 

however, able to compare ONHIR’s list of cases eligible for appeal with NARA’s inventory, and 

we found that ONHIR had accounted for all case files. 

With respect to completeness of case files, ONHIR staff initially told us there is no set 

list of documents that would apply uniformly to all case files for all appeal circumstances but 

later identified 11 documents that would typically appear in every case file that we were able to 

review (see Attachment 1 for a list of these documents). Our onsite review time was limited due 

to the COVID-19 pandemic. We checked for the inclusion of these documents in the 13 case 

files we reviewed, but we could not always easily identify documents in the case files (whether 

mislabeled or missing) or examine the specific circumstances for each individual case. We have 

listed below the deficiencies that we noted during our review (see bullet list). In response to our 

draft report, ONHIR provided additional documentation to respond to these deficiencies and told 

us some of the files had been transferred to the NARA office since our review. 

• We did not find a Notice of Hearing in seven files, even though all files included 

Hearing Transcripts. In response to the draft report, ONHIR provided three of these 

Notice of Hearing documents and said four files were no longer at ONHIR. 

• We did not find a Certificate of Degree of Indian Blood (issued by the Bureau of 

Indian Affairs) in two files. In response to the draft report, ONHIR provided a Family 

4 Under the Equal Access to Justice Act (Pub. L. No. 96-481), courts can order Federal agencies to pay reasonable attorney’s fees 

and expenses for prevailing parties in lawsuits with the U.S. Government or any of its agencies. 5 GAO Report No. GAO-18-266, Office of Navajo and Hopi Indian Relocation: Executive Branch and Legislative Action Needed 

for Closure and Transfer of Activities, issued April 2018. 

4 
 

 

 

 

 

 

 

 

 

 

Inquiry document in lieu of a Certificate of Degree of Indian Blood for one file and 

said one file was no longer at ONHIR. 

• We did not find both an Appeal Letter and Acceptance of Appeal Letter in one file. In

response to the draft report, ONHIR provided both the Appeal Letter and Acceptance

of Appeal Letter for the file.

• We did not find a Post-Hearing Legal Memorandum in one file. In response to the

draft report, ONHIR provided a letter sent from ONHIR to the independent hearing

officer in lieu of the formal memorandum.

In its report, the GAO noted that incomplete files increase the risk that a successor 

agency will not be able to effectively assume ONHIR’s duties. In the event of ONHIR’s closure 

and transfer of functions, it will be vital to ensure that active and eligible appeal case files 

include all necessary documents. 

Congressional Considerations and Potential Liabilities in 

the Event of ONHIR’s Closure or Transfer of Duties 

We cannot resolve any disagreements between ONHIR and the Navajo Nation regarding 

the appeals process, but we emphasize the below considerations for Congress as it determines 

how to proceed. 

In the event of ONHIR’s closure or transfer of duties, legislation may be needed to: 

• Identify a successor agency to be responsible for ongoing and future appeals and

litigation in Federal court

• Designate the relocation benefits that will be provided and the agency or bureau that

will provide them to applicants

• Direct ONHIR to ensure that case files include all necessary documents for active and

eligible appeals

As of December 2019, the relocation benefit for a certified applicant was set by ONHIR 

(after consultation with the U.S. Department of Housing and Urban Development) at $134,000 

for a household of three or fewer and $140,000 for a household of four or more. Predicting 

estimated costs and liabilities associated with appeals is difficult because it is not known how 

many denied applicants will appeal their cases or how many ONHIR decisions will be reversed, 

which could result in the provision of relocation benefits. For example, the 2008 decision in 

Herbert v. Office of Navajo and Hopi Indian Relocation not only reversed an applicant’s denial 

but led ONHIR to reopen the application period (which had closed in 2010) for the fourth and 

most recent time for those seeking relocation benefits. The application period was reopened for 

another 2 years, during which ONHIR received about 3,000 new applications. Each application 

had to be individually reviewed and eligibility decisions made, thus also extending the period for 

potential appeal cases and cost liability. 

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In its April 2018 report, the GAO showed that the rate of denials per applicants for the 

last application period (95 percent) was significantly higher than that for the previous three 

periods, which were 21 percent, 65 percent, and 63 percent, respectively. Further, the applicants 

in the last application period made up 32 percent of all applicants but 65 percent of all denied 

cases. The Navajo Nation commented in its response to our draft report that this may be due to 

changes in the eligibility standards applied by ONHIR’s administrative judge, citing denied 

applicants in the latest round whose circumstances the Navajo Nation believed were essentially 

identical to those who had been previously certified, such as siblings from the same homesite. 

In contrast, in its response to the GAO report, ONHIR stated that, during the last application 

period, the Navajo Nation encouraged as many Navajo as possible to apply, including applicants 

who did not meet eligibility criteria. Regardless of the reasons for the increased number of 

applicants and rate of denial, all of these applicants may continue to exercise their appellate 

rights for many years to come. 

ONHIR estimates that its costs when a denial of eligibility is reversed typically amount to 

$300,000. This amount includes costs for the relocation benefit, infrastructure, contractor 

incentives, staff time for appeal processing and pre- and post-move services, the independent 

hearing officer and any co-counsel, outside counsel, hearing interpreter, hearing transcript, any 

investigations, payments for the applicant’s counsel, and other miscellaneous ONHIR office 

expenses such as postage, telephone service, and general overhead. 

If these benefits are retained, the 212 eligible appeal cases present $63.6 million in 

potential costs under the current benefit package. Although it is difficult to provide an estimate 

of likely costs given uncertainties about how many applicants might appeal and what the 

outcomes of those appeals might be, this amount is at least potentially possible. An additional 

consideration in the event of ONHIR’s closure or transfer of duties may include determining 

whether any changes are needed to the relocation benefits that can be given to eligible applicants, 

a decision that could either increase or decrease potential expenditures. Finally, the $63.6 million 

does not account for any decisions that may affect cases outside of those currently eligible. Until 

all cases are closed, decisions such as Herbert v. ONHIR could have broader effects, such as 

reopening the application period again or providing a basis for currently ineligible cases to be 

reheard in court. Any such ruling would increase the upper limit of potential costs. 

In response to the draft report, the Navajo Nation expressed a desire for a “more sensible 

way to address remaining appeals” along with a number of general concerns regarding the 

potential closure of ONHIR and suggested, for example, that ONHIR receive additional funding 

and authorities. We also note that the Navajo Nation requested that Congress consult with the 

Navajo Nation and that any decisions be made with “adequate time” to enable ONHIR to “fully 

discharge its functions.” 

Conclusion 

Due to the COVID-19 pandemic, we had to limit our fieldwork. In particular, we 

reviewed relevant laws, regulations, procedures, and documents but had to limit our site visits 

and interviews. We conducted our review in accordance with the Quality Standards for 

6 
 

 

 

 

 

 

 

 

Inspection and Evaluation as put forth by the Council of the Inspectors General on Integrity and 

Efficiency. We believe that the work performed provides a reasonable basis for our conclusions. 

We invited ONHIR and Navajo and Hopi officials to provide input on a draft version of 

this report. ONHIR provided updated case numbers along with additional legal citations and case 

file documentation, which we have noted in the report where applicable. The Navajo Nation 

provided a written response; we have made revisions and have incorporated some information in 

this report where applicable and included the full response in Attachment 2. Hopi officials did 

not provide a response. 

If you have any questions, please contact me at 202-208-5745. 

The legislation creating the Office of Inspector General requires that we report to 

Congress semiannually on reports issued. 

cc: Christopher J. Bavasi, Executive Director, Office of Navajo and Hopi Indian Relocation 

Tara Sweeney, Assistant Secretary – Indian Affairs 

Richard Myers, Chief of Staff, Bureau of Indian Affairs 

Jerold Gidner, Director, Bureau of Trust Funds Administration 

Dan Jorjani, Solicitor, Office of the Solicitor 

Craig Crutchfield, Chief of the Interior Branch, U.S. Office of Management and Budget 

Milton Bluehouse, Jr., Deputy Chief of Staff to the President and Vice President, Navajo 

Nation 

Clark Tenakhongva, Vice Chairman, Hopi Tribal Council 

Attachments (2) 

7 
 

Attachment 1: Documents Included in File Review 

The Office of Navajo and Hopi Indian Relocation (ONHIR) identified the following 

11 documents as essential for a typical appeal case: 

• Application for relocation benefits

• Birth certificate or proof of identification

• Certificate of Degree of Indian Blood

• Denial Letter (from ONHIR to denied applicant)

• Appeal Letter (submitted by denied applicant to ONHIR)

• Acceptance of Appeal Letter (from ONHIR to denied applicant)

• Notice of Hearing

• Hearing Transcript

• Post-Hearing Legal Memorandum

• Independent Hearing Officer Decision

• Notice of Final Agency Action (from ONHIR to denied applicant)

8 
 

 

Attachment 2: Response to Draft From the Navajo Nation 

The Navajo Nation’s response to our draft report follows on page 10. 

9 
THE NAVAJO NATION 

JONATHAN NEZ J PRESIDENT MYRON LIZER J VICE PRESIDENT 

MEMORANDUM 

To: Office of the Inspector General , Department of the Interior 

From: Navajo Nation 

Re: Navajo Nation Comments on Office of Inspector General Draft Report Current Status 

of the Office of Navajo and Hopi Indian Relocation' s Appeals on Denied Eligibility 

Determination Cases, Report No. 2020-WR-0 16-B 

Date: July 31 , 2020 

Introduction. Thank you for the opportunity to comment on the OIG draft report titled Current 

Status of the Office of Navajo and Hopi Indian Relocation's Appeals on Denied Eligibility 

Determination Cases. Although the report is largely descriptive in character, tFhere are certain 

statements that the Nation does not agree with or that otherwise would benefit from additional 

context. 

Navajo Nation Rejects the Implication that It Is "In Part" Responsible for the Relocation. 

In the Background section, the draft report states: "ONHIR is an independent Federal agency 

responsible for assisting with the relocation of Navajo people and Hopi people living within each 

other's boundaries as a result; in part, of a longstanding land dispute between the tribes." 

(Emphasis added.) The draft report never explains the reference to " in part," however, the 

Navajo Nation strongly disputes the notion that the cause of the relocation is in any part the 

responsibility of the Navajo people or, in its origin, the result of a " longstanding land dispute" 

between the Navajo and the Hopi given the generations of peaceful coexistence between our 

peoples before outside forces "created" the land dispute. Notably: 

• The actual origin of the land dispute was federal policy towards the Church of Jesus Christ 

of Latter Day Saints. In 1882, at the request of the local Bureau of Indian Affairs agent who 

was seeking authority to evict two Mormon missionaries working among the Hopi, President 

Chester Arthur signed an executive order establishing a reservation "for the use and 

occupancy of Moqui [Hopi], and such other Indians as the Secretary of the Interior may see 

fit to settle thereon." 1 At the time the reservation was created there were 300 to 600 Navajos 

living within its boundaries and approximately 1800 Hopis.2 President Arthur's order, by 

its broad reference to "such other Indians," clearly encompassed the Navajos who made up to 

one-quarter of the population. Even so, it was evident that little thought had been given to 

1 Healing v. Jones (ll), 2 10 F. Supp. 125, 129 (D. Ariz., 1962). 2 Emily Benedek, The Wind Won't Know Me (1992) at 34; Holl is A. Whitson, A Policy Review of the Federal 

Government's Relocation ofNava jo Indians Under P.L. 93-531 and P.L. 96-305, 27 Arizona Law Review 371, 372-373, 

375 n.30 (1985). 

NAVAJO NATIO N OFFICE O F THE PRESIDENT AND VI CE PRESIDENT 

POST OFFICE BOX 7440 · WINDOW ROCK, AZ 8651 5 · PHONE: (928) 871-7000 · FAX: (928) 87 1-4025 

10
the actual land usage of the two tribes as the boundaries of the new reservation (known as the 

1882 Reservation) were artificially designated as a rectangle--one degree of latitude in width 

and one degree of longitude in height. Inside this artificial reservation there were over 900 

Indian sites--the majority of which were Navajo. 3 

• After creating an irrational reservation designation, for suspect purposes, the Federal 

government then sought to divide the land for energy development. According to a history 

of the land dispute "[i]t was not repeated Hopi complaints about Navajo encroachment onto 

uninhabited 1882-area lands that drove the [Federal] government to action. It was the 

pressure of oil and gas companies to determine ownership of the area." The "disputed lands" 

lie on top of one of the richest coal beds in the Western United States.4 

• The Navajo Nation strongly opposed the relocation, which was not voluntary in nature, and 

offered numerous alternatives, generally in the form of land exchanges, that would have 

allowed Navajo families to remain on the land that they had inhabited for many 

generations. In light of Navajo opposition to the relocation, it is notable that the draft report 

uses ''Settlement Act" as an abbreviation for the Navajo-Hopi Settlement Act of 1974 (Pub. 

L. No. 93-531, as amended), reinforcing the false concept that the Navajo Nation agreed 

to a settlement that included mandatory relocation of Navajo people, even though the only 

"settlement" was imposed by Congress and court order. 5 In these comments, the Act will 

be referred to as the "Relocation Act" since its central purpose was to impose a mandatory 

relocation on approximately 15,000+ traditional Navajos from their ancestral land, 

consistent with titles of the 1980 and 1988 amendments to the Act. 

Appeals Process is More Elaborate than Described. Page 2 of the draft report notes that " [i]f 

the applicant appeals ONHIR's denial of relocation benefit decision, the District Court will rule to 

either reverse or affirm the decision." A similar point is made on the same page regarding Court 

of Appeals decisions on review of District Court decisions. However, in recent decisions, the 

District Court has been remanding back to ONHIR for new evidentiary hearings and/or for 

ONHIR's administrative judge to write new decisions based on the District Court's ruling. In one 

of these remanded cases, it was determined that an evidentiary hearing was not needed and all that 

remained to be decided was a single legal issue which was briefed by both parties. ONHIR' s 

administrative judge then issued a new decision granting the appeal and recommending 

certification, which ONHIR did. Had he denied the appeal, the applicant likely would have 

appealed again to the District Court. 

ONHIR Changes Eligibility Criteria to the Detriment of Navajo Applicants. In April 2018, 

the U.S. Government Accountability Office ("GAO") issued a report on the potential closure of 

3 Whitson, supra, at 375 n.30, citing Healing v. Jones (II) , 210 F. Supp. at 137 n.8 ("As revealed by extensive 

archeological studies, there were over nine hundred old Indian sites, no longer in use, within what was to become the 

executive order area but outside of the lands where the Hopi villages and adjacent farm lands were located. Most of 

these were Navajo sites. Tree ring or dendrochronological studies show that of a total of 125 of these lndian sites 

within the executive order area for which data was successfully processed, the wood used in the structures was cut 

during a range of years from 1662 to 1939. A considerable number of these specimens were cut and presumably used 

in structures prior to 1882. There is no convincing evidence of any mass migration of Navajos either into or out of the 

executive order area at any time for which the tree ring data were available." ). 4 Benedek, supra, at 134. 5 See former 25 U.S.C. § 640d-3; Sekaquaptewa c. MacDonald, 626 F.3d 113 (9th Cir. 1980). 

2 

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ONHIR and the administrative and legislative logistics such closure would require. 6 The Navajo 

Nation provided extensive comments on this report, which are incorporated therein as Appendix 

III. GAO accurately details the long history of neglectful implementation of the eligibility and 

appeals process by ONHIR, requiring the application period to be reopened three times. 

Although derivable from GAO' s table summarizing the number of applications submitted and the 

number approved, GAO did not highlight that in the fourth and final application period denial rates 

shot up to 94%. 7 In the three prior periods, the denial rate was respectively 21 %, 65% and 63%. 

The Navajo Nation believes that this is because ONHIR' s administrative judge changed his 

evidentiary standards, not because the cases are weaker. 

Notably, there are a number of examples of applicants being denied who had essentially identical 

facts as applicants who were certified eligible for benefits in earlier years. Many of these recently 

denied applicants came from families who occupied the same homesites on Hopi-Partitioned Land 

("HPL") as prior applicants and family members who were earlier certified eligible from these 

same homesites. Yet these current applicants are being denied eligibility, with ONHIR going as 

far as to question the existence of HPL homesites previously established for other family members 

that supported ONHIR determining that the earlier family members were eligible for benefits. 8 

For example, ONHIR previously determined that some applicants were eligible for benefits, but 

denied their recent sibling applicants' appeals even though they are claiming the same homesite as 

their siblings. In the last few years, the federal district court has overturned several of ONHIR 

decisions that denied relocation eligibility. 9 

Assessment of Liability. Based on certain assumptions, and ONHIR' s estimate that a reversed 

denial of eligibility costs $300,000 (slightly more than double the cost of actually providing the 

benefit), the draft repoti projects a potential cost liability of $63.6 million to the United States 

under the current benefit package. The draft report goes on to note that: "Until all cases are closed, 

the Government is at risk of similar decisions that could have broader effects such as reopening 

the application period again or providing a basis for currently ineligible cases to be reheard in 

court." However, the Government' s liability under the Relocation Act extends beyond the 

individual cases that were the basis for this assessment. Given the failure of ONHIR to provide 

promised infrastructure, community facilities, social services and so fo1ih, the actual liability of 

the United States far exceeds $63.6 million. 10 

An Alternative Approach? It is a sad irony that the cost of a reversed denial of eligibility is 

6 ONH!R: Executive Branch and Legislative Action Needed for Closure and Transfer of Activities, GAO-18-266 

(April 24, 2018) ("2018 GAO Report" ). 7 ld , Table I at 20. 8 See 25 C.F.R. § 700. l47(a). 9 See, e.g., Jason Begay v. ONHTR, I 6-CV-08221-DGC (September 28 , 2017). In the Jason Begay case, the Hearings 

Officer was overturned by a Federal District Court judge for being arbitrary and capricious. The Hearings Officer 

refused to accept the sworn testimony ofan applicant as to the man's annual income because the Navajo testified that 

he had been paid in cash for landscaping work. The Hearings Officer determined that the employer was of the 

Mormon religion, and concluded that a Mormon would be honest and would not pay a Navajo under-the-table. Even 

though the employer was not present in the hearing and there was no actual evidence contrary to the Navajo man's 

testimony, the Navajo claimant's testimony as to his total gross income was disregarded and benefits were not al lowed. 

ONHIR hired a private investigator to try to create proof of what the Mormon employer's practices were thirty years 

ago, rather than accept the Navajo person 's sworn testimony. ONHIR ultimately settled the case on remand but 

without conceding Mr. Begay is eli gi ble for relocation benefits. 

10 See 2018 GAO Repo1i at 125-26 . 

3 

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$300,000, while the benefit value is less than half of that. The Navajo Nation urges OIG to present 

for consideration by the Congress whether there is a more sensible way to address the remaining 

appeals, as well as other issues the Navajo Nation has raised with regard to the failure to provide 

adequate infrastructure, community facilities, social services and so forth. The Navajo Nation 

has presented a number of proposals for increased funding for ONHIR to carry out its current 

responsibilities and increased authority for ONHIR to work in the areas of the Navajo Nation that 

have been the subject of multi-decade construction freezes. Such proposals can form the basis 

for a just and humane resolution to the relocation process, though its impact will likely resonate 

for years to come. 

Conclusion. The ongoing appeals, vacation and remand of ONHIR decisions is a flashing red 

light that there are issues that have not been adequately addressed. OIG should recommend that 

Congress, in close consultation and coordination with the Navajo Nation, assure adequate time to 

address all issues arising out of ONHIR' s implementation of the Relocation Act and not bring 

ONHIR to an abrupt and rushed end before it fully discharges its functions, as Congress originally 

required 46 years ago. 

Sincerely, 

9-!7l-~ =::? 

Jonathan Nez, President ~ ,~sident 

THE NAVAJO NATION THE NAVAJO NATION 

4 

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