And now:Ish <[EMAIL PROTECTED]> writes: >From BIGMTLIST The following is an article written for VERDICT, a magazine for legal professionals, by Marsha Monestersky. From: [EMAIL PROTECTED] Date: Fri, 11 Jun 1999 21:46:05 EDT VERDICT article Black Mesa Crisis Author Bio: Marsha Monestersky has lived on Black Mesa for the past seven years. She serves as Consultant to Sovereign Dineh Nation, a grass-roots organization of traditional Dineh families on Black Mesa. She is a founding member of the International Peoples Tribunal on Human Rights and the Environment and Co-Chair of the Non Governmental Organization (NGO) Human Rights Caucus at the United Nations Commission on Sustainable Development. Ms. Monestersky has facilitated the filing of numerous testimonies to the US Congress, the United Nations and Citizens Complaints to the US Department of the Interiors Office of Surface Mining (OSM). Ms. Monestersky wrote the appeal and served as pro se counsel in 1995 in Administrative Law Court. The initially successful lawsuit, Dineh Alliance v. Peabody Coal Company and OSM was described in Judith Nies " Native American History" as the first time Native Americans ever beat a multi-national corporation in a US court. Ms. Monestersky received a US Environmental Protection Agency "Certificate of Merit" in June 1992 and was awarded a Martin Luther King Jr. "Spirit of the Drum" human rights award in February 1999. She can be reached at P.O.Box 1968 Kaibeto, AZ 86053 email: [EMAIL PROTECTED] Dineh (Navajo) families living in the Black Mesa region of Arizona are currently struggling against corporate and governmental powers which have attacked their right to remain on their ancestral land, to practice their traditional life-style and religion, and to retain their civil rights. The primary corporate power is Peabody Coal Company, which operates two large strip mines in the area and whose activities have caused environmental damage and the destruction of burial and sacred sites. The governmental powers include the Hopi and Navajo tribal governments, whose history and operation are interlinked with the mining industry, and the US Government, which empowered the tribal governments at the expense of the people on the land. The combined actions of these corporate and governmental powers have had a devastating impact on the Dineh families. Over 12,000 families have been forcibly relocated from their ancestral land to which they are intimately bound by their religion and traditional economy. The 3,000 Dineh who remain on the land are currently being forced to choose between relocation and life without civil rights under the rule of an openly hostile government. Families near the mining area are subject to the routine destruction of their burial and sacred sites by mining activities which have also destroyed water supplies, defaced the landscape, and negatively impacted their health. -1- In its war against the Dineh who have resisted relocation, the US Government has destroyed wells that supplied water needed for their survival in the arid climate, outlawed even the most basic home repairs, confiscated the livestock that sustain their subsistence life-style, and subjected them to the rule of a tribal government in which they are not allowed to vote or participate. The driving force behind the oppression was the discovery of enormous reserves of low-sulfur coal beneath the surface of their ancestral lands, so that control of these lands became the subject of a dispute between tribal governments manipulated by the coal companies. In the resolution to this dispute arranged by the US government, the civil rights of the Dineh were sacrificed so as to satisfy the ambitions of the coal companies and the tribal governments. The land dispute was best summarized by Martin Gashweseoma, Keeper of the Hopi Fire Clan Tablets and a spokesman for the traditional Hopi: "We want everyone to know that the Navajos are not the ones taking our land, but the United States. The Hopi and the Navajo made peace long ago, and sealed their agreement spiritually with a medicine bundle. It is through the puppet governments, the 'Tribal Councils' forced upon both nations by the United States, that the illusion of a conflict has been created on the basis of the false modern concept of land title." A Brief History of the Conflict By the time Columbus reached the Americas, the Hopi and Dineh had already settled the lands they continue to occupy today. The Hopi lived in villages on the tops of the buttes at the southern end of Black Mesa and farmed the adjacent land. The Dineh lived in isolated settlements scattered through the vast lands surrounding the Hopi settlements. The Spanish were driven from the region by the Pueblo Revolt of 1680, and the tribes were free from colonial rule until the US acquired jurisdiction over the area in 1848. The US Bureau of Indian Affairs (BIA) set up offices near the Hopi villages, both to be near a population center and to be further away from the Navajo, who were more militant in their resistance to colonial occupation. In 1882, President Chester Arthur issued an Executive Order establishing a reservation centered around these offices. While the Hopi and Navajo had coexisted in the area for centuries without the use of borders, the BIA enforced the partition of the 1882 reservation into separate Hopi/Navajo areas in 1892 delineated by the Parker-Keams line, named for the BIA agents who created the boundary. A number of Dineh were resettled outside the boundary, and over the next 60 years, the Hopi area was expanded to include what became known as District 6. In the meantime, the adjacent Navajo Reservation expanded so as to surround the 1882 reservation. In the early 20th century, oil was discovered on the Navajo Reservation but, with a readily visible governing structure lacking, the already reluctant Navajo were unable to approve oil leases required to legitimize the intrusion. In 1922, with the prodding of the -2- BIA agent, the U.S. imposed a federally approved government on the Navajo (including careful selection of its leaders) to facilitate the tribes approval of oil leases sought by Standard Oil. In 1934, Congress passed the Indian Reorganization Act. Under the guise of support for the ideal of self-determination, tribes were encouraged and pressured to establish electoral, representative governments that oil and mining companies and the BIA could more easily control than they could traditional leadership. In 1936, an election boycotted by the majority of Hopi opposed to nontraditional governance, established a government recognized by the U.S. In the 1950s, lawyers seeking self-enrichment at the expense of the tribes, insinuated themselves, with BIA approval, as counsel for tribal governments formed through their efforts. John Boyden, a Salt Lake City lawyer, was retained as Hopi counsel. Boyden, a Mormon Deacon, also represented the Peabody Coal Company and was counsel for the Mormon Church, which owned a controlling interest in Peabody Coal. (Thus, Peabody eventually gained subsurface rights on exclusive Hopi territory for a fraction of fees paid elsewhere, and continues to lease mineral rights in Navajo/Hopi territory to this day.) Attorney Norman Littell was hired by the Navajo Tribal Council. His contract provided him with 10 percent of coal revenues. Both lawyers were also motivated by statutory fees of 10 percent in Indian Claims Commission (I.C.C.) cases, seeking damages for wrongful taking of native lands. Only after accepting settlements were the tribes informed of the real purpose of the I.C.C.: to settle land claims by paying a pittance and thereby foreclose actions to recover lands wrongfully taken. Unsettled boundary issues between the Hopi and Navajo remained an obstacle to mineral leasing interests. The coal deposits were mostly located on the area of the 1882 Reservation outside District 6. Boyden's Hopi government claimed rights to the deposits within the 1882 Reservation it controlled. Littell's Navajo government claimed the rights because the area was inhabited by Dineh. The lawyers filed a collusive lawsuit against each other in 1958 , each tribe claiming the entire 1882 reservation. The 1962 Healing v Jones decision designated District 6 as exclusive Hopi land, and the rest of the 1882 reservation as a Joint Use Area. The mineral rights to the Joint Use Area would be divided between the two governments, and leases with Peabody Coal were signed in 1966. A lawsuit against the leasing was brought by traditional Hopi whose religion forbade strip mining. The suit was dismissed for failure to join an indispensable party (the Hopi tribe) that could not be joined due to sovereign immunity. By its ruling, the Court simply avoided the claim that the recognized government was fraudulently imposed. Exploitation of Joint Use land continued to be problematic, given dual tribal interests, but the lawyers had a solution. Coinciding with the pressures of the 1970s energy crisis, and long before Wag the Dog, the attorneys and mining interests planted stories about a budding range war between Hopi and Navajo (there is even evidence that Boyden retained a public relations firm to promote the story) and lobbied hard for -3- federal legislation that was required to separate Hopi and Navajo interests. In 1974, with little opportunity for input from tribal people, Congress passed the Navajo-Hopi Settlement Act, dividing the Joint Use Area into Navajo Partition Land (NPL), on which lived 100 Hopi, and Hopi Partition Land (HPL), on which lived 13,000 Navajo. Those on the wrong side of the line were required to relocate. Over the course of the next decade, thousands of Navajo were evicted from their homes and sacred lands. In 1988, Manybeads v. U.S. was filed to stop the relocations. The suit challenges the Navajo relocation primarily by alleging that it destroys the Navajos right to exercise site-specific religion. The Court dismissed, stating, among other things, that relocation benefits (provided by the U.S.) would be the envy of countless millions in other countries. The 9th Circuit detoured the case into mediation, which was wrestled from the grasp of the plaintiffs into that of the tribal governments. They negotiated an Accommodation Agreement, permitting only specified individuals to sign, and thereby to stay put for 75 years but thereafter to forego relocation benefits. Other Dineh who were ineligible to sign were simply required to move on. This Accommodation Agreement was passed into law by the Congress in 1996. Through the federally established Navajo Hopi Indian Relocation Commission, a total bounty of $25 million to the Hopi was placed on Navajo Accommodation Agreement signatures, resulting in fraud, threats, and intimidation. The nonsigning resistors who cooperate with the ONHIR in their removal have some say in the location and construction of replacement housing. Resistors who do not cooperate will be concentrated in an area called the New Lands. Purchased at a bargain basement price by the U.S. in 1980, the New Lands, near Sanders, Arizona, are completely inadequate for subsistence grazing and agriculture, and are 60 miles downstream from the containment dam that held back uranium-contaminated water until 1979, when the dam burst and the water spilled into the Rio Puerco. Removal of both cooperating and noncooperating resistors begins in February 2000. Meanwhile, the ONHIR enforces a strict prohibition against repairs and improvements to the properties of resistors. New glass for a broken window must be smuggled in. Vehicles and homes are searched for building materials, which when found, are confiscated. Both signators and nonsignators alike are subject to grazing restrictions that require them to sell most of their sheep and cattle, leaving them with insufficient numbers to maintain a subsistence living. Those who refuse to sell have their animals confiscated without compensation. Mining Abuses The current Hopi and Navajo Tribal governments were originally assembled for the purpose of facilitating mining, and they continue to receive most of their funding from mining revenues, which make up 80% of the budget of the Hopi government and a similarly large percentage of the Navajo government income. As noted in a decision by Federal Judge Ramon Child in a 1996 suit by the Dineh families against Peabody -4- Coal: The Navajo Nation with head offices in Window Rock, Arizona, near the New Mexico State line, shares very little of the $45,000,000 annual royalty from the mine, or benefit therefrom, with the members of the Navajo Nation who reside in the proximity of the mine. Thus, while the Navajo Nation benefits from the proceeds of the mining, the unhappy fact is that its members who live near the mine suffer from the effects of that same mining. (Dineh Alliance v. Peabody, US Dept. of the Interior Board of Land Appeals, 1996) The tribal governments control the enforcement of NAGPRA and environmental law with respect to the mining, and under these circumstances, it is not surprising that protection of the environment and of the rights of the families in the mining area is subordinated to the objective of facilitating mining operations. For example, the enforcement of NAGPRA in the mining area is controlled by Navajo Historic Preservation Department, whose priorities were demonstrated in their May, 1999 testimony to the NAGPRA Review Committee, at which they claimed that a 1960's survey of archaeological resources funded by Peabody Coal exempts them from obligation to protect burial or sacred sites in the mining area. Residents in the mining area are imprisoned by the tribal governments if they try to prevent the destruction of burial or sacred sites. Bah Begay had to watch as bulldozers unearthed the graves of her twin sisters and turned the site into a disposal area. Ataid Lake was threatened with arrest and being run over when she tried to stop bulldozers from destroying a talking rock sacred to the Dineh people and from unearthing a site containing the graves of many Anasazi and Dineh. Mabel and Lucille Benally were jailed for trying to stop a bulldozer from expanding a coal stockpile outside of their front door and told they would remain in jail unless they agreed not to protest the mine. The protection against environmental abuse provided by SMCRA is also subverted by the tribal governments. For example, SMCRA prohibits mining within 100 feet of an occupied dwelling. But if Peabody wishes to mine where a Dineh family lives, it contacts the tribal governments, which are contractually obligated to evict the family, so that the dwelling is not occupied when the bulldozers reach it. Since the tribal government and not Peabody does the evictions, Peabody skirts the law. Reprinted under the fair use http://www4.law.cornell.edu/uscode/17/107.html doctrine of international copyright law. &&&&&&&&&&&&&&&&&&&&&&&&&& Tsonkwadiyonrat (We are ONE Spirit) Unenh onhwa' Awayaton http://www.tdi.net/ishgooda/ &&&&&&&&&&&&&&&&&&&&&&&&&&
