Before Sekaquaptewa, Chief Judge, and ABBEY and BENDER, Judges.

I. Factual and Procedural Background

This case involves a complaint for trespass to land filed in the Hopi Tribal Court by Plaintiff Sulu on behalf of the Tewa Kachina Clan of First Mesa Village. It calls for a determination of the jurisdiction of the Tribal Court, under the Hopi Constitution, to resolve conflicting land claims by different clans within a Hopi village. The case grows out of the following circumstances:

On September 4, 1987, the Hopi Butterfly-Badger Clan of First Mesa assigned to defendant Patsy Ross, a member of that Clan, a half-acre of land within the Village of First Mesa to be used as a home. The assignment was made on a Tribal Housing Authority Land Assignment form, and was signed by the male and female Butterfly-Badger Clan leaders and Kikmongwi of the Village of First Mesa. On September 8, 1988, Ross moved a mobile home onto the assigned land. 

On September 9, 1988, Plaintiff Tom Sulu, Tewa Kachina Clan leader, filed a complaint in the Hopi Tribal Court on behalf of the Tewa Kachina Clan. The complaint alleged that the land onto which Ross had moved her mobile home "lies within the territorial possession of the Tewa Kachina Clan" and that because Ross did not have the consent or authority of the Tewa Kachina Clan to reside on the land, she was a trespasser. The complaint sought a temporary restraining order and permanent injunction prohibiting Ross from setting up her mobile home on Tewa Kachina Clan land, an order requiring Ross to move her home, and damages.

On September 9, the Tribal Court (Numkena. J.) issued a Temporary Restraining order prohibiting Ross from hooking up utilities, making improvements, or moving into the mobile home for a period of twenty days. On November 1, 1988, the Tribal Court further ordered that the Temporary Restraining Order would remain in effect pending settlement or adjudication of the matter. The court also granted a Motion to Intervene filed by Burke Adams, Leader of the Hopi Butterfly-Badger Clan, through which Ross claimed her right to use the land. The court then "remanded" the matter for negotiation to the Consolidated Villages of First Mesa for a period of forty-five days. The court ordered that the negotiating parties were to include Plaintiff, Sulu, Tewa Village Chief. Clifton Ami, defendant Ross, intervenor and Butterfly-Badger Clan leader, Burke Adams, and Ebin Leslie, the Kikmongwi of First Mesa Village. The court ordered counsel for both parties to submit a progress report to the court at the end of the forty-five day period.

The parties' progress report stated that the parties had met but were unable to resolve the matter by negotiation. A trial date of January 25, 1989, was set.

The court heard oral testimony regarding the history of the Tewa's arrival in the Hopi village many years ago, as well as testimony regarding recent use of the land in question.

At trial, the court sought to determine which of the two competing clans -- the Tewa Kachina Clan or the Hopi Butterfly-Badger Clan -- had the right to assign the land in question. The court found that at some time in Hopi history the Hopi leaders had assigned certain lands in the First Mesa area to the Tewa people. The court then found, on the basis of evidence of recent use, that the land in question was in a Tewa area.

The court granted Plaintiff Sulu's motion for directed verdict, found defendant Ross to be committing trespass, and enjoined her from maintaining a home on the land in question.

Defendant Ross's appeal to this court, raises the following issues:

1. Defendant alleges that the issues raised by the property dispute between the Tewa and Hopi Clans concern religious and political matters that are non-justifiable. Defendant alleges that, in any event, Hopi custom and Hopi Constitution require such property disputes to be resolved by traditional village procedures rather than the Tribal Court.

2. Alternatively, defendant requests that the court find for her on the basis of Article III, Section 2 of the Hopi Constitution, which reserves to the Villages the assignment of farming land.1 Because the assignment to defendant was approved by the Village Kikmongwi, the traditional head of the Village recognized by Article III, Section 3 of the Hopi Constitution, defendant requests a finding that the land was assigned to her in accordance with the Constitution and, therefore, that defendant is not a trespasser.

3. Defendant requests alternatively that the court find that the Village of Tewa is a separate village, and dismiss the case for lack of subject-matter jurisdiction because disputes between villages are committed to the jurisdiction of the Hopi Tribal Council under Article VI, Section 1(h) of the Hopi Constitution.²

4. Defendant also alleges that because the tribal court refused to grant her a jury trial unless she posted a non-refundable bond of $2,568.60 for jury fees and mileage, she was denied a jury trial in violation of Rule 14(e) of the Hopi Rules of Criminal and Civil Procedure.

II. Discussion

Article III, Section 1 of the Hopi Constitution recognizes the Village of First Mesa as a single, self-governing village consisting of the consolidated villages of Shitchumovi, Tewa and Walpi.³ Article III, Section 2 of the Constitution reserves certain powers to such villages, including the power to assign farming land 4. The parties in this case agree that the land in question here is farming land within the meaning of this provision. Accordingly, the power to assign the land at issue in this case is reserved to the Village of First Mesa.

With regard to the procedures through which land is to be assigned by the villages, Article VII, Section 1 of the Hopi Constitution provides that assignment of the use of farming land "shall be made by each village according to its established custom." ⁵ Hopi villages are free to adopt modern constitutions and governmental organization but, unless they do, they are considered as being under the traditional Hopi organization. That traditional organization recognizes the Kikmongwi of each village as the leader of the village.⁶ The Village of First Mesa has not adopted a village constitution. The village, therefore, remains under the traditional Hopi organization, with the Kikmongwi as village leader.

Reservations of village authority are not to be lightly disregarded.

It might be argued here that the Village of First Mesa had already made such a resolution. Defendant Ross introduced a 1987 document, signed by the First Mega Village Kikmongwi, assigning the land in dispute to her. From the record before us, however, we cannot tell, whether or not this document was intended to constitute a village resolution of the disagreement as to rights in the land between the Hopi Butterfly-Badger Clan and the Tewa Kachina Clan. It is entirely possible that the Kikmongwi signed the document without being aware of the Tewa Kachina Clan's conflicting clauses. This 1987 document, therefore, cannot be considered on this record to constitute a village resolution of the conflict that gives use to this case.

Prior to trial in this case, the Tribal Court "remanded" the matter to members of First Mesa Village in an attempt to reach a negotiated solution. That effort failed. This attempted negotiation did not satisfy the Hopi constitutional requirement that the matter be resolved according to the villages traditional procedures. The Tribal Court selected the negotiating parties, retained jurisdiction in the case, and ordered the parties to give a status report within a specified period. What is required is a decision of the dispute by the village according to procedures that it determines and utilizing by the members of the village that the village deems appropriate according to those procedures.

The village procedures should be conducted through the leadership of the Kikmongwi, as explicitly recognized by the Hopi Constitution.

Our decision today that the Tribal Court did not have jurisdiction to decide this dispute is limited to those cases where a disagreement between clans over which has the right to assign land is at the core of the case. Such clan disagreements are to be resolved through established village custom rather than through tribal court adjudication. Our decision, however, does not apply in situations where there is no similar intravillage dispute between clans, each of which asserts the right to assign the land. If the person accused of trespassing on another's land has no claim of right flowing from a clan assignment, or if the validity of plaintiff's assignment through customary village procedures is undisputed, the plaintiff may have recourse to the Tribal Court to resolve a trespass claim. Thus, the ordinary trespass case can be brought in Tribal Court. But where the resolution of the trespass action turns on a determination of which clan within a village has the right to assign certain land, jurisdiction to decide the underlying dispute is in the village, not in the Tribal Court. Only after the village resolves the underlying dispute pursuant to established custom can the parties come to Tribal Court for enforcement of their rights, or determined by the village, through trespass or other actions.

In view of our disposition of this case, it is unnecessary for us to decide whether defendant Ross was improperly denied a jury trial, as she claims, because of her failure to post bond prior to trial. However, since the matter has been fully argued to us and since the issue may affect other cases, we think it appropriate to dispose of the question that has been raised.

On June 20, 1988, the Tribal Court apparently promulgated a rule of court requiring posting of payment or bond in civil actions by the party requesting a jury trial under the Hopi Tribal Code, procedural rules not covered by the Code "shall be laid down by the Chief Judge of each Court respectively, in rules of Court approved by the Tribal Council and concurred in by the Agency Superintendent." Hopi Ord. 21, 1.8.3. We were informed by the General Counsel of the Tribe at the time of oral argument that there was no indication that the June 20, 1988, rule had ever been approved by the Tribal Council, and inquiries of the Clerk of the Tribal Court suggest that the rule was not submitted to the Tribal Council for its approval prior to this case. The rule, therefore, was not an effective one when this case was tried.

ORDER

The decision of the Tribal Court is vacated and the case is remanded to that Court with directions to dismiss for lack of jurisdiction.

Vacated and Remanded July 5, 1991.

Emory Sekaquaptewa, Chief Justice Hopi Appellate Court

I hereby certify that this is a true and correct copy of the instrument on file in the appellate Court of the Hopi Tribe: Court Clerk of the Hopi Tribe

Footnotes:

1 Both parties agree that the property in dispute is farming land within the the meaning of the Hopi Constitution.

2 Defendant also claims that Hopi Tribal Ordinance 21, Section 1.5.1 required Judge Numkena to recuse himself from hearing the matter because he is related to plaintiff's counsel. However, the provision relied upon applies only where the judge is related within a certain degree to one of the parties. Relationship to a party's counsel does not trigger the recusal requirement.

In addition, defendant alleges due process and equal protection violations. In view of our decision in this case, it is not necessary for us to address these issues.

3 Article III, Section 1, provides:

The Hopi Tribe is a union of self-governing villages sharing common interests and working for the common welfare of all. It consists of the following recognized villages:

First Mesa (consolidated villages of Walpi. Shitchumovi and Tewa)

Mishongnovi Kykotsmovi

Sipaulavi Bacavi

Shungopavi Hotevilla

Oraibi Moenkopi

4 Article III, Section 2 provides:

"The following powers . . . are reserved to the individual villages: . . . (d) To assign farming land, subject to the provisions of Article VII . . . ."

5 Article VII, Section 1 provides:

"Assignment of the use of farming land within the traditional clan holdings of the villages of First Mesa, Mishongnovi. Sipaulavi, and Shungopavi . . . shall be made by each village according to its established custom . . ."

6 Each village shall decide for itself how it shall be organized. Until a Village shall decide to organize in another manner, it shall be considered as being under the traditional Hopi organization, and the Kikmongwi of such village shall be recognized as its leader." Hopi Constitution, Art. III, Sec. 2.