In 2019, the Office of the Inspector General (OIG) for the Department of the Interior (DOI) initiated a series of reports to determine whether the Office of Navajo and Hopi Relocation (ONHIR) has fulfilled its congressional mandate, rendering it irrelevant. Congress has also been slowly decreasing ONHIR’s funding, indicating a coordinated move to shut the agency’s doors.
ONHIR was created in 1974 under the Navajo-Hopi Land Settlement Act (NHLSA) after a long dispute between the Navajo and Hopi tribal nations. NHLSA requires members of each tribe to relocate to designated lands; ONHIR is tasked with assisting individuals with relocating. If ONHIR shuts down, it is unclear how individuals entitled to assistance will receive it. The Trump administration argues that after relocations largely ended in 2018, the purpose of the agency had been fulfilled. Advocates for tribal nations contend ONHIR must remain open until all claims under NHLSA are finally adjudicated, adequate infrastructure is installed to make new homes livable, and future assistance is provided to individuals who were minors when relocated and have not yet received assistance by ONHIR, but are likely to qualify in the future.
DOI OIG is not the first oversight body to provide such an audit. In 2018, the Government Accountability Office (GAO) released a report on the same topic. GAO recommended ONHIR remain open until all NHLSA assistance claims are adjudicated and urged DOI to develop a contingency plan to deal with remaining claims. On September 29, 2020, OIG released its latest report, which found ONHIR’s mission incomplete because at least seven claims are pending on appeal and an additional 212 remain eligible for appeal. Similarly to GAO two years earlier, OIG recommended DOI or Congress develop a plan for pending claims after ONHIR is shuttered.
In addition to pending claims, tribal nations argue ONHIR has further responsibilities under NHLSA. In March 2019, Robert Black Jr., then-Executive Director of the Navajo-Hopi Land Commission Office of the Navajo Nation, testified before the U.S. House of Representatives Committee on Appropriations about infrastructure deficits in the Navajo Nation. Pointing to deliberations of the Senate Committee on Interior and Insular Affairs, he argued Congress set forth guiding principles for administering the relocation program, including that DOI provide a “generous relocation program to minimize the adverse social, economic, and cultural impacts of relocation on affected tribal members.”
Based on this legislative history, the Navajo Nation argues ONHIR is obligated to provide infrastructure, particularly in the Bennett Freeze Area. The Bennet Freeze Area is a large 1.5-million-acre area where DOI imposed a development freeze until the Navajo-Hopi land dispute was resolved. The freeze lasted 43 years and crippled the area’s economic development. Without additional federal assistance for programs such as the Navajo Thaw Project, it is likely the relocated population will suffer.
The COVID-19 pandemic has highlighted the devastating impact of this lack of infrastructure. Limited water access has been linked to the Navajo Nation’s infection rate, which soared in the pandemic’s early months. Furthermore, Otto Tso, chairman of the Navajo-Hopi Land Commission, has argued ONIHR is also obligated to assist individuals who were relocated when they were minors and will likely become homeless in adulthood.
Advocates face an uphill battle to show ONHIR must meet additional obligations. The 2018 GAO report expressly found infrastructure construction is not an ONHIR obligation under NHLSA. However, the GAO opinion is in tension with the legislative history of NHLSA cited by Mr. Black before Congress.
ONHIR cannot shut down until its mission is complete. At a minimum, it must remain open until every NHLSA assistance appeal has been finalized. Furthermore, regardless of whether GAO or the Navajo Nation is correct with respect to ONHIR’s additional obligations, Congress should provide funding for such assistance to promote economic development and public health.
In his majority opinion in McGirt v. Oklahoma, Justice Gorsuch decried a “sadly familiar pattern” manifest in the federal government’s treatment of tribal nations, writing “[y]es, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking.” Here, too, the United States must reject that thinking. ONHIR’s mission is relevant as long as Navajo and Hopi Indians adjust to relocation. It is vital the commitments made by Congress in NHLSA do not become one more broken promise to tribal nations.