§ 640d–2 TITLE 25—INDIANS Page 246

(d) Failure to attend two consecutive sessions or

bargain in good faith

In the event either negotiating team fails to

attend two consecutive sessions or, in the opinion of the Mediator, either negotiating team

fails to bargain in good faith or an impasse is

reached, the provisions of section 640d–3(a) 1 of

this title shall become effective.

(e) Disagreements within team

In the event of a disagreement within a negotiating team the majority of the members of the

team shall prevail and act on behalf of the team

unless the resolution of the tribal council certifying the team specifically provides otherwise.

(Pub. L. 93–531, §2, Dec. 22, 1974, 88 Stat. 1712.)

REFERENCES IN TEXT

Section 640d–3 of this title, referred to in subsecs. (b)

and (d), was amended by Pub. L. 98–620, title IV,

§402(27), Nov. 8, 1984, 98 Stat. 3359, by striking out subsec. (b) and redesignating subsec. (a) as the entire section.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 640d–2, 640d–3 of

this title.

§ 640d–2. Implementation of agreements

(a) Full agreement

If, within one hundred and eighty days after

the first session scheduled by the Mediator

under section 640d–1(c) of this title, full agreement is reached, such agreement shall be put in

such form as the Mediator determines best expresses the intent of the tribes and shall then be

submitted to the Secretary and the Attorney

General of the United States for their comments

as they relate to the interest of the United

States in the proceedings. These comments are

to be submitted to the Mediator and the negotiating teams within thirty days. The negotiating teams and the Mediator shall then consider

the comments and, if agreement can still be

reached on terms acceptable to the negotiating

teams and the Mediator within sixty days of receipt by him of the comments, the agreement

shall be put in final written form and shall be

signed by the members of the negotiating teams

and the Mediator. The Mediator shall then cause

the agreement to be entered into the records of

the supplemental proceedings in the Healing

case. The provisions of the agreement shall be

reviewed by the District Court, modified where

necessary, and put into effect immediately

thereafter.

(b) Partial agreement

If, within the one hundred and eighty day period referred to in subsection (a) of this section,

a partial agreement has been reached between

the tribes and they wish such partial agreement

to go into effect, they shall follow the procedure

set forth in subsection (a) of this section. The

partial agreement shall then be considered by

the Mediator in preparing his report, and the

District Court in making a final adjudication,

pursuant to section 640d–3 of this title.

(c) Consistency with existing law

For the purpose of this section, the negotiating teams may make any provision in the agreement or partial agreement not inconsistent with

existing law. No such agreement or any provision in it shall result in a taking by the United

States of private property compensable under

the Fifth Amendment of the Constitution of the

United States.

(Pub. L. 93–531, §3, Dec. 22, 1974, 88 Stat. 1713.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 640d, 640d–3,

640d–4, 640d–5, 640d–9, 640d–13, 640d–14, 640d–15, 640d–17,

640d–18 of this title.

§ 640d–3. Default or failure to reach agreement;

recommendations to District Court; final adjudication

If the negotiating teams fail to reach full

agreement within the time period allowed in

section 640d–2(a) of this title or if one or both of

the tribes are in default under the provisions of

section 640d–1(b) or (d) of this title, the Mediator, within ninety days thereafter, shall prepare and submit to the District Court a report

containing his recommendations for the settlement of the interests and rights set out in section 640d(a) of this title which shall be most reasonable and equitable in light of the law and circumstances and consistent with the provisions

of this subchapter. Following the District

Court’s review of the report and recommendations (which are not binding thereon) and any

further proceedings which the District Court

may schedule, the District Court is authorized

to make a final adjudication, including partition

of the joint use area, and enter the judgments in

the supplemental proceedings in the Healing

case.

(Pub. L. 93–531, §4, Dec. 22, 1974, 88 Stat. 1713;

Pub. L. 98–620, title IV, §402(27), Nov. 8, 1984, 98

Stat. 3359.)

AMENDMENTS

1984—Pub. L. 98–620 struck out designation ‘‘(a)’’ before ‘‘If the negotiating’’, and struck out subsec. (b)

which provided that any proceedings as authorized in

this section had to be assigned for hearing at the earliest possible date, would take precedence over all other

matters pending on the docket of the District Court at

that time, and had to be expedited in every way by the

Court.

EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98–620 not applicable to cases

pending on Nov. 8, 1984, see section 403 of Pub. L. 98–620,

set out as an Effective Date note under section 1657 of

Title 28, Judiciary and Judicial Procedure.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 640d, 640d–1,

640d–2, 640d–4, 640d–5, 640d–9, 640d–13, 640d–14, 640d–15,

640d–17, 640d–18 of this title.

§ 640d–4. Authorized recommendations for facilitation of agreement or report to District

Court; discretionary nature of recommendations

(a) For the purpose of facilitating an agreement pursuant to section 640d–2 of this title or

preparing a report pursuant to section 640d–3 of

this title, the Mediator is authorized—

(1) notwithstanding the provisions of section

211 of this title, to recommend that, subject to
Page 247 TITLE 25—INDIANS § 640d–7

the consent of the Secretary, there be purchased or otherwise acquired additional lands

for the benefit of either tribe from the funds of

either tribe or funds under any other authority of law;

(2) to recommend that, subject to the consent of the Secretary, there be undertaken a

program of restoration of lands lying within

the joint use area, employing for such purpose

funds authorized by this subchapter, funds of

either tribe, or funds under any other authority of law;

(3) to recommend that, subject to the consent of the Secretary, there be undertaken a

program for relocation of members of one

tribe from lands which may be partitioned to

the other tribe in the joint use area;

(4) Repealed. Pub. L. 93–531, §30(a), as added

Pub. L. 96–305, §11, July 8, 1980, 94 Stat. 934.

(5) to make any other recommendations as

are in conformity with this subchapter and the

Healing case to facilitate a settlement.

(b) The authorizations contained in subsection

(a) of this section shall be discretionary and

shall not be construed to represent any directive

of the Congress.

(Pub. L. 93–531, §5, Dec. 22, 1974, 88 Stat. 1714;

Pub. L. 93–531, §30(a), as added Pub. L. 96–305,

§11, July 8, 1980, 94 Stat. 934.)

AMENDMENTS

1980—Subsec. (a)(4). Pub. L. 96–305 struck out par. (4)

which authorized the Mediator to recommend, in exceptional cases where necessary to prevent hardship, a

limited tenure for residential use, not exceeding a life

estate, and a phased relocation of members of one tribe

from lands which may be partitioned to the other tribe

in the joint use area.

§ 640d–5. Considerations and guidelines for preparation of report by Mediator and final adjudication by District Court

The Mediator in preparing his report, and the

District Court in making the final adjudication,

pursuant to section 640d–3 of this title, shall

consider and be guided by the decision of the

Healing case, under which the tribes have joint,

undivided, and equal interests in and to all of

the joint use area; by any partial agreement

reached by the parties under section 640d–2(b) of

this title; by the last best offer for a complete

settlement as a part of the negotiating process

by each of the tribes; and by the following:

(a) The rights and interests, as defined in the

Healing case, of the Hopi Tribe in and to that

portion of the reservation established by the Executive order of December 16, 1882, which is

known as land management district no. 6 (hereinafter referred to as the ‘‘Hopi Reservation’’)

shall not be reduced or limited in any manner.

(b) The boundary lines resulting from any partitioning of lands in the joint use area shall be

established so as to include the higher density

population areas of each tribe within the portion of the lands partitioned to such tribe to

minimize and avoid undue social, economic, and

cultural disruption insofar as practicable.

(c) In any division of the surface rights to the

joint use area, reasonable provision shall be

made for the use of and right of access to identified religious shrines for the members of each

tribe on the reservation of the other tribe where

such use and access are for religious purposes.

(d) In any partition of the surface rights to the

joint use area, the lands shall, insofar as is practicable, be equal in acreage and quality: Provided, That if such partition results in a lesser

amount of acreage, or value, or both to one tribe

such differential shall be fully and finally compensable to such tribe by the other tribe. The

value of the land for the purposes of this subsection shall be based on not less than its value

with improvements and its grazing capacity

fully restored: Provided further, That, in the determination of compensation for any such differential, the Federal Government shall pay any

difference between the value of the particular

land involved in its existing state and the value

of such land in a fully restored state which results from damage to the land which the District Court finds attributable to a failure of the

Federal Government to provide protection

where such protection is or was required by law

or by the demands of the trust relationship.

(e) Any lands partitioned to each tribe in the

joint use area shall, where feasible and consistent with the other provisions of this section, be

contiguous to the reservation of each such tribe.

(f) Any boundary line between lands partitioned to the two tribes in the joint use area

shall, insofar as is practicable, follow terrain

which will facilitate fencing or avoid the need

for fencing.

(g) Any claim the Hopi Tribe may have

against the Navajo Tribe for an accounting of

all sums collected by the Navajo Tribe since

September 17, 1957, as trader license fees or commissions, lease rental, or proceeds, or other

similar charges for doing business or for damages in the use of lands within the joint use

area, shall be for a one-half share in such sums.

(h) Any claim the Hopi Tribe may have

against the Navajo Tribe for the determination

and recovery of the fair value of the grazing and

agricultural use of the lands within the joint use

area by the Navajo Tribe and its individual

members, since September 28, 1962, shall be for

one-half of such value.

(Pub. L. 93–531, §6, Dec. 22, 1974, 88 Stat. 1714.)

§ 640d–6. Joint ownership and management of

coal, oil, gas and other minerals within or

underlying partitioned lands; division of proceeds

Partition of the surface of the lands of the

joint use area shall not affect the joint ownership status of the coal, oil, gas, and all other

minerals within or underlying such lands. All

such coal, oil, gas, and other minerals within or

underlying such lands shall be managed jointly

by the two tribes, subject to supervision and approval by the Secretary as otherwise required by

law, and the proceeds therefrom shall be divided

between the tribes, share and share alike.

(Pub. L. 93–531, §7, Dec. 22, 1974, 88 Stat. 1715.)

§ 640d–7. Determination of tribal rights and interests in land

(a) Authorization to commence and defend actions in District Court

Either tribe, acting through the chairman of

its tribal council for and on behalf of the tribe,