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Senator McCain & Bavasi exchange dialogue at the Hearing on S. 1003, The Navajo Hopi Land Settlement Act of 1974 Amendments July 21, 2005

McCain: Mr. Bavasi, again I want to thank you for the outstanding work you have performed over a many year period.

[Bavasi's testimony that you already have]

McCain:   Maybe for the record, it might be helpful, Mr. Bavasi, to describe to the Committee for the record, some of the... (Unintelligible), if I went to the Phoenix Rotary Club today and said, you know we passed a law in 1974 that was supposed to cost 40 million years and take maybe 10 to 12 years, and it's ended up costing a billion dollars, and has gone on for 31 years, how would you describe this saga?

First of all it's a lesson that Congress probably shouldn't pass laws dictating relocation.   Is that the first lesson?

Bavasi:   Probably. But I do it carefully.   I wouldn't want to blame this on anyone, but I would merely point out, that in 1980, well let me back up, I think the record would show that when this was originally contemplated, that the notion was that maybe a thousand or 11oo families that needed to be moved, and the deadline of 1985 then '86 came about because the law required the office to do a plan, to submit a plan, have a plan approved, and then five years later the project was supposed to be done.   That was 1985.   Then because of some legal issues it became 1986.   So July 7, 1986, the project was supposed to be done, and originally it had been contemplated the 1000, 1100 families would be moved.   Well, interestingly enough, in 1986, 1100 families had been moved.   However, because of a whole variety of reasons, ultimately 3600 families had been certified or hoping to be certified.   That's certainly one reason that this has taken so long.

Another reason this has been reported to be something less than a voluntary program, but in fact it has always been operated as a voluntary program.   So, some folks didn't have the urgency to move through the program perhaps as quickly as they would otherwise.

McCain:   No one has ever been forced off their land.

Bavasi:   No, sir, never have.   And I will submit it with you later [intelligible - spoke too fast] how we think we can come to a conclusion so that no one will be forced off their land.   So, I think those two issues will be one reason why we are where we are today.

McCain:   How would you account for gross miscalculation of cost of a 40 million dollar original cost to a billion dollar actual cost?

Bavasi:   I'm not sure I can because I don' t know what the theory was or what the processes was that 30 years ago it would cost 40 million dollars.   We believe, and I think we can show you; we have been fairly frugal in terms of expenditure of money.   Even today in today's housing market we're able to build a home in slightly over $100,000 in 2004.   It will be slightly higher this coming year.

McCain:   And I think Mr. Tessler might testify that there's been huge, huge amount of legal cost associated with this issue.   Is that right, Mr. Tessler?

Tessler:   That is correct.

McCain:   Could you estimate out of this billion dollars how much has just been expended in continuous court battles.   I think there's been continuous court battles from the day that this bill was passed.

Tessler: Yes, there have.   I know we provided the figure to your staff.   I don't have that in front of me.   But all through this process, the relocates, if they have been denied eligibility for benefits, have been entitled to administrative hearings, and the NN has provided a legal services program to represent them all through that process, which involved not only the administrative stage, but also appeals to the US District Court which has generated much expense.

McCain:   In all due respect to our friends in the legal profession this has been quite a windfall for them.

Tessler:   Yes, it has.

[Someone said something about the record here]

McCain:   Would you please, for the record, give us an estimate of the legal cost associated with this because I think it's really been? ... Oh, Mr. McGinn, maybe with a benefit of a 31-year hindsight, maybe we should have never passed the law to start with.   Now Mr. Bavasi, using your expertise, what do you think we ought to do about the Bennett Freeze situation, which we all know has turned into, with all good intentions, into a deplorable economic disaster area.

Bavasi:   Senator, I don't think there is any easy answer to it, but it is as you suggest it is deplorable, awful situation, then I think if we all work together - the Navajos, the Hopis, and Congress, federal gov't - we can come to some conclusion on how that area can be rehabilitated.

McCain:   Which I think Congress, by the way, would be more than willing to provide funds for but first we have to have a resolution. What if we passed a law tomorrow that Bennett Freeze is lifted?   What would happen then?

Bavasi:   Number one, I don't think that it would be wise.   I think that we should all work together to come to...

McCain [interrupting]:   But it wouldn't be wise because what would happen?

Bavasi:   Chaos might be an appropriate term.   I don't have any idea what would happen.   I don't think it would be good because everyone would be scrambling to get the upper hand, and I don't think that's the proper way to handle it.

McCain:   But negotiations between the tribes for 31 years have not succeeded.

Bavasi:   But I'm not sure we've tried that hard on the Bennett Freeze issue.   I could be completely wrong.   I'm not involved in that.   But I suspect I think we can come to some conclusion, frankly using relocation as a benchmark of perhaps of what not to do to going in.

McCain:   Senator Inouye.

Inouye:   As I've indicated earlier, I'm very optimistic, because I recall the first meeting that this committee held during which time the chairman of the Hopi and the chairman of the Navajo sat at the same table, and that had never happened before.   And today I note, that for over 3 years I believe, negotiators and the leaders of both tribes have been looking into the access to sacred sites of each other's camps.   If we can go that far, I'm certain that all these matters can be resolved.   And I share the Chairman's optimism and his directness that this be resolved.   And I'm with him.

Bavasi:   Senator, I hope I didn't leave the wrong impression.   There is no relocation on the Bennett Freeze.

McCain:   Yeah, but the Bennett Freeze continues to be a source of major friction between tribes and the deplorable economic conditions that exists, you know it's an outrage that any citizen in the US should live in the conditions that exist on the Bennett Freeze.    And that was created by the federal gov't.   Is that an inaccurate statement?

Bavasi:   No, it's not.

McCain:   Mr. Ragsdale, do you have any comment on that?

Ragsdale: No, sir.   No, sir, I think it would have to be addressed in separate legislation.

McCain:   Mr. Tessler?

Tessler: No, sir.

McCain:   You guys are surprisingly reticent.

Bavasi [I think]:   Sir, we are not a party to that suit nor have we been.

McCain:   No, but you are very familiar with the impact that the Bennett Freeze has had on this whole issue.

Tessler:   That part of the reservation has fallen behind even the former JUA we're dealing with now in terms of development and lack of infrastructure.   I do believe it is very close to resolution.   I believe the tribes are considering a compact, which may resolve it any time now.

McCain: Good.

Ragsdale:   Mr. Chairman, the Freeze was put in place in 1964 and 1965 about the time I graduated from high school, and I learned the other day when I was reading on the matter that the Freeze was still essentially still status quo. I was somewhat surprised.

McCain:   As I remember history, it was put in as a temporary measure that would be an incentive to not have one tribe take advantage over the other while the dispute was gonna be resolved within a short period of time, and here we are 50 years later, whatever, 40 some years later.   Again, I go back, Senator Inouye, I think that Congress ought to be more careful about and administrations ought to be more careful about as we all know it's an executive order, the Bennett Freeze, to how we interfere in these disputes because sometimes the laws of unintended consequences prevail in an incredible fashion.  

One other issue I had for you, Mr. Bavasi, construction and maintenance problems with relocation housing.   How severe are they?

Bavasi:   Construction and maintenance problems?

McCain:   Yeah.