And now:Ish <[EMAIL PROTECTED]> writes:
>From Bill Havens
To the list:
I tried to hold out and stay out of this one. But, I couldn't stand
it any longer. This one was eating away at me and wouldn't let me leave it
alone.
The following pasted message was posted by the "BIGMTLIST" and later
(I believe) re-posted here on the Tribal Law List. It is an article
prefaced with credentials and touting "Constitutional Rights" for the Dineh
of Big Mountain.
My goals are clear here: To dismantle this article and expose it for
what it is, largely fabrication and distortion designed to mislead the
uninformed reader into believing one side of a very convoluted issue that
has had disastrous affects on thousands of people's lives for generations.
I intend to piece by piece shoot holes in this "analysis" where appropriate
as well as to highlight those observations and representations that I
believe are accurate and true.
So, here goes. I hope this is useful for some of you.
Thank you for listening,
Bill Havens
Following is the pasted article peppered with my corrections and analysis
of his "analysis."
______________________________________
March 13, 1999
This is an analysis and critique of a recent article written by one
Gabor Rona, identified as the Senior Staff Attorney of an organization
called the Center for Constitutional Rights. In the BIGMTLIST introduction
to the article, one secret is immediately revealed; the author's experience
with the heart of the issue is limited to "his five-day visit with the
Dine' of Black Mesa." This is a common error on the part of outsiders who
think their mission is to save a people. They often think that by
"slumming" for a few days they suddenly become experts.
That said, I better mention my credentials. My name is Bill Havens
and I am a graduate of the University of Arizona's Masters program in
American Indian Studies. My contribution to the academia of Indian Studies
is my comprehensive thesis, "Intercultural Dynamics of the Hopi-Navajo Land
Dispute: Concepts of Colonialism and Manifest Destiny in the Southwest."
Robert A. Williams, Jr., Professor of Law and Indian Studies at the
University of Arizona, contributor to the Third Edition of West
Publishing's "Federal Indian Law, Cases and Materials, and author of "The
American Indian in Western Legal Thought: The Discourses of Conquest," was
the chair of my committee and my advisor while at the U of A.
I lived out at Hopi for almost two years while I served as the
Executive Assistant/Chief of Staff to the former Chairman of the Hopi
Tribe, Ferrell Secakuku. I am admittedly biased in favor of the Hopis in
this crisis, but am compassionate enough and rational enough to recognize
and value both sides of the issue.
Because of my outspoken support of the Hopis in this issue, as well as
my criticism of the tactics of the so-called Sovereign Dineh Nation (SDN),
and my close association with the Hopi Tribal Government over the years, I
have been demonized by some of the younger people out at Big Mountain.
Interestingly enough, this reaction was most vehement from the non-native
residents/spouses of activists. The elderly people were considerably kinder.
I currently teach, as adjunct faculty, Indian Studies topics at
Phoenix College in Phoenix, Arizona.
In the article, "Analysis of Dineh Case and Needs," Mr. Rona has taken
considerable interpretive liberties that amount to distortion and
misrepresentation of the facts. The clear objective of this distortion is
to sway the sympathies of the uninformed and gain additional support for a
small group of resisters who steadfastly refuse to acknowledge that they
are guests on the sovereign territory of another tribe, Hopi. He also
demonstrates a certain amount of ignorance of history in the matter. An
observation that reduces the calculative element of his attempt to sway
public opinion to simply a matter of error.
More boldly, I must say that Mr. Rona's article represents
sensationalist fabrications and distortions designed to gather more support
from people around the world who believe
everything they read but have no first hand knowledge of the situation.
Even the so-called "Sovereign Dineh Nation" is a fabrication.
Here is the article:
>From BIGMTLIST
The following is a paper written by Gabor Rona, Senior Staff Attorney of the
Center for Constitutional Rights, following his five-day visit with the
Dine' of Black Mesa.
ANALYSIS OF DINEH CASE AND NEEDS
Submitted by: Gabor Rona
Senior Staff Attorney
Center for Constitutional Rights
666 Broadway
New York, NY 10012
(212) 614-6437
Date: March 1, 1999
1. Description of case/issues
In continuing pursuit of a policy whose effects, if not means, are
indistinguishable from the ethnic cleansing and genocide visited on Native
peoples throughout American history, the United States seeks to relocate
all Navajo (Dineh) people living on that portion of traditional Navajo
lands recently designated by the government to be for the exclusive use and
occupancy of the Hopi. This policy is the solution to a nonexistent but
cleverly manufactured "range war" between the Hopi and Navajo, who have, in
fact, coexisted peaceably for many generations. How and why has this
happened?
.................
BILL RESPONDS:
In this very first opening sentence, Mr. Rona immediately captures our
attention and passions with some key words that, particularly in light of
current events around the world, conjure up deep emotion, "ethnic
cleansing" and "genocide." Clever writing, but misleading. Though
"genocide" and "ethnic cleansing" may apply to the overall history of
Indian-White relations, it is a stretch to apply those terms to activities
at Big Mountain. The "genocide" that is so often referred to is
directed at about 12 families (at the most) who refuse to acknowledge that
they are living on Hopi Tribal Lands, land that was Hopi traditional
territory long before the Navajos ever came to the Southwest. This
"genocide" takes the form of asking people living in a land that is not
theirs to simply acknowledge that they are guests and
sign a lease, or leave. No one is taking anything away from the Navajos
because it was never theirs in the first place.
In response to Mr. Rona's references to "traditional Navajo lands," I
have this to say. Any reasonable person with a clear view of the history
of the area would know that Hopi traditional jurisdiction in the area
superseded Navajo by centuries. Navajos are late-comers to the area,
invaders of Hopi lands. Granted, this was enhanced and facilitated in the
last 150 years by the United States government. But, it was a trend in
Navajo expansion prior to all the government actions expanding the Navajo
Reservation.
I agree that some of this situation was precipitated by the energy
companies' desire for access to the area and that the U.S. government as
well as both the Hopi and Navajo tribal governments assisted. But, to
claim that the Hopi and Navajo have "in fact, coexisted peaceably for many
generations" is simply a reflection of the Author's one-sided information
gathering on the subject. Ask the Hopis about their experiences with
Navajos on Hopi lands. Oh, some will be polite, but most will say "It's
Hopi land. Why don't they just go to their own land where they belong."
Historically, the Navajos have been the invaders of Hopi. They
systematically looted and stole crops, women, and children. In modern
times this theft has been mostly limited to land and grazing resources
(admittedly facilitated by U.S. government indifference).
..........................
BGMTN:
Events leading to removal of the Navajo can be traced back to the 1864
"Long Walk," or forced relocation by Kit Carson of 10,000 Navajo from their
ancestral homeland. The belief that gold was abundant in Navajo territory
enabled settlers, with the aid of the U.S. military, to easily overcome any
concerns they may have had about the Navajo�s explicit rights to live
unmolested in their ancient territory. The 7,000 survivors of the march
were concentrated at Ft. Sumner, where many more died in the barbaric
conditions of their internment.
..............
BILL RESPONDS:
All of this is true. The atrocities of the Navajo experience at the
hands of Kit Carson are a shameful reality of our history. The Navajos
suffered a great deal in this experience, this horrible experiment that
didn't end until the U.S. government realized it was too expensive. The
Bosque Redondo experiment left permanent scars on the collective psyche of
the Navajo people. It did not, however, end out of any humane realization
or enlightenment of the perpetrators, it was purely a financial expedient.
In 1864, however, there were very few Navajos in the traditional Hopi
jurisdiction. They were making periodic raids into Hopi and there were a
few bands over that way. But, presence of much significance in the Hopi
areas did not intensify until after the Navajo release from Bosque Redondo
and the establishment of the Navajo Reservation. Granted, there were
complaints from Hopis in the early part of the 19th century of Navajo
depredations into the core of the Hopi world, in and around the Hopi mesas,
but the problem escalated after their release from Bosque Redondo.
...........
BGMTN:
Meanwhile, hostilities between the Navajo
and the U.S. were brought to an official end in an 1868 treaty, reserving
for the Navajo, territory spanning the borders of present-day Arizona and
New Mexico. In subsequent decades, the U.S. pushed the Navajo westward by
forcing them to cede eastern portions of their treaty lands.
......................
BILL RESPONDS:
The Navajos never ceded any of their treaty lands. The original 1868
treaty reservation remains at the core of the now vast Navajo Reservation.
In fact, during its greatest period of expansion, between 1878 and 1900,
the Navajos actually gained almost 1 million acres to the east and south of
the 1868 treaty reservation.
..................
BGMTN:
Eventually,
the Navajo surrounded the much smaller Hopi Nation.
.....................
BILL RESPONDS:
This is a true statement. By aggression and excessive cooperation
with the U.S. government, the Navajos gained millions upon millions of
acres of land in the Southwest that can reasonably be argued was
traditional Hopi territory. Now the Hopis are landlocked by the Navajos.
A Hopi can't even "go to town" without passing through Navajo jurisdiction.
This can be a very unsettling thought when conflicts are going on.
..............................
BGMTN:
In 1882, President
Chester Arthur issued an Executive Order establishing the territory as a
reservation for the Hopi and Navajo.
................
BILL:
This is a grievously erroneous and misleading statement, one that
demonstrates either an incredible ignorance of the history of the area or a
devious attempt to mislead others who are ignorant of history into
believing that the Navajos somehow had an original right to the Hopi
reservation. The Hopi reservation was designated in 1882 by Executive
Order that "set apart [the reservation] for the use and occupancy of the
Moqui [Hopi] and such other Indians as the Secretary of the Interior may
see fit to settle thereon..." It is this statement in the Executive Order
that ultimately led to the Hopi's loss of additional land to the Navajos.
The government treated this area as simply "Indian country." They didn't
care what Indians. Some of the agents did, though. By Mr. Rona's
interpretation this statement would mean that the Hopi reservation was a
Hopi and Navajo and --insert list of every Indian tribe in the country--
reservation. And, therefore, every Indian tribe in the country could lay
claim to the Hopi reservation.
It wasn't until 1962 in the U.S. Federal Court case, "Healing vs.
Jones," decision that the Navajos were recognized as having some rights to
the Hopi reservation. It was a sort of "squatters' rights" decision.
Here's what it said, in part:
"The Navajo and Hopi Tribes have "joint, undivided, and equal interests
in and to all of the 1882 reservation lying outside the boundaries of land
management District 6 as defined on April 24, 1943."
Land Management District 6 constituted an area at the center of the
reservation of approximately 600,000 acres. The area outside District 6
but still inside the 1882 reservation, an area of approximately 1.8 million
acres, became designated as "Joint Use Area." This term to some degree
increased the Navajo settlement of the Hopi reservation and the area
quickly became an almost exclusive Navajo Use Area that was jealously
guarded by the Navajos for the preservation of their right to overgraze to
their hearts' content.
An interesting finding in this court decision was that the Court did
not say that the Navajos had a right to the area because of the original
wording of the Executive Order of 1882, but that they gained these rights
by virtue of their continued and permanent residence on the land in
question "and implicit authorization, over time, of that habitation by the
Department of the Interior, who, by actions, implicitly sanctioned
settlement of Navajos on the land." (From page 11 of "Hopis and Navajos:
Understanding Their Land Disputes," by the American Friends Service
Committee, 1992) In other words, by some bizarre legal precedent, by
virtue of having done nothing to stop the encroachment of Navajos into Hopi
lands, the Department of the Interior had implicitly given its approval to
the settlement of increasing numbers of Navajos on Hopi land. "Squatters'
Rights."
........................
BGMTN:
By the early 20th century, oil was discovered on Navajo lands, 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 Bureau of Indian Affairs� (BIA) "Indian
agent," the U.S. imposed a federally approved government on the Navajo
(including careful selection of its leaders) to facilitate the tribe�s
approval of oil leases sought by Standard Oil.
.............................
BILL:
I agree with this interpretation of the imposition of an unnatural
style of government on the Tribe. It is clear that the government had an
agenda that involved establishing governments on Indian reservations that
they could control and yet would somehow legitimize the invasion of energy
companies onto the reservations. This also happened to the Hopis. Now,
however, these governments do represent the main infrastructure of the
community.
................................
BGMTN:
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.
.............................
BILL:
True. Though the government and the energy companies would obviously
deny the intention of "controlling" the Tribal governments.
................................
BGMTN:
In 1936, an election boycotted by the majority of
Hopi opposed to nontraditional governance, established a government
recognized by the U.S.
...........
BILL:
True.
................................
BGMTN:
Unsettled boundary issues between the Hopi and Navajo remained an obstacle
to mineral leasing interests.
......................
BILL:
True.
................................
BGMTN:
The 1882 Executive Order establishing the
Hopi and Navajo Reservation
.................................
BILL:
Here's this misinformed/misrepresentation again. It was NOT
established as a Hopi and Navajo Reservation. See discussion above.
.................
BGMTN:
did not establish distinct Hopi and Navajo
areas.
..................
BILL:
I disagree; originally it had distinguished between Hopi and Navajo
areas by virtue of the fact that the Navajos had their own reservation to
the east of Hopi and the Hopis had their reservation established by the
1882 Executive Order. Seems clear enough to me. The Navajos on the Hopi
reservation at the time were guests.
................................
BGMTN:
In 1941, the BIA designated a portion of the 1882 reservation
exclusively for Hopi use, and the remainder, as "Navajo/Hopi Joint Use Area."
..............................
BILL:
NOT TRUE. In 1941 Land Management District 6 (the 600,000 acres
previously mentioned) was defined as part of the overall land management
program for grazing control, etc. The remainder of the Hopi reservation
(approximately 1.8 million acres) was not legally designated as "Joint Use
Area" until the decision previously mentioned in the "Healing vs. Jones"
case in 1962.
................................
BGMTN:
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.
........................
BILL:
I am aware that John Boyden's law firm was representing Peaboby Coal
at the same time that Boyden was "representing" the Hopi Tribe. I have
only just learned that the Mormon Church may have "had a controlling
interest in Peabody Coal." If Boyden's conflict of interest wasn't bad
enough, this is incredible. Boyden's estate may not be culpable, but the
Mormon Church still exists. Couldn't this make them a defendant in a case
out of Boyden's law firm? The Hopi and Navajo Tribes were clearly damaged
by Boyden's conflict of interest. Now it seems that the Mormon Church was
a beneficiary of that conflict of interest, to the detriment of the Tribes.
................................
BGMTN:
(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.)
.........................
BILL:
NOT TRUE. The only "exclusive Hopi territory" in the eyes of the
Court was the aforementioned Land Management District 6. None, I repeat,
NONE of the Peabody mining operation is on Land Management District 6. The
mining lease area is wholly in the previously designated "Joint Use Area"
(JUA). Since the partition of the JUA into Navajo Partition Land (NPL) and
Hopi Partitioned Land (HPL) 80% or more of the operation is on Navajo land.
Here is another instance where Mr. Rona has either intentionally distorted
facts to make the Hopis look like the bad guys or has simply demonstrated
his ignorance of the real situation out there. Maybe this is because he
only spent a "five-day visit with the Dine' of Black Mesa."
When are people who want to claim knowledge of this situation and
declare themselves experts going to learn that they should talk to the
Hopis, as well? Let's create a balanced picture here!!
................................
BGMTN:
Attorney Norman Littell was hired by the Navajo Tribal
Council. His contract provided him with 10% of coal revenues. Both lawyers
were also motivated by statutory fees of 10% in Indian Claims Commission
(I.C.C.) cases, seeking damages for wrongful taking of native lands. Only
after accepting settlements did tribes typically learn 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. Both lawyers were
instrumental in the creation of tribal governments willing to sign mineral
leases and to pursue I.C.C. claims. Under their lawyers� guidance, the
tribes filed a collusive lawsuit against each other in 1958 , each tribe
claiming the entire 1882 reservation.
................
BILL:
I think all of this is a reasonably accurate assessment.
................................
BGMTN:
Decided in 1962, the case basically
affirms the 1941 BIA designation of a portion of the reservation as
exclusive Hopi land and the rest as Joint Use Area.
...............................
BILL:
We already talked about this. But, remember that later the 1974
Navajo-Hopi Land Settlement Act partitioned the land into Hopi Partitioned
Land (HPL) and Navajo Partitioned Land (NPL). Once again the Navajos had
convinced the world that they should be able to take even more of the
Hopis' small land base. They had at this point chipped away at the Hopis'
original traditional jurisdiction of 10 to 15 million acres until the Hopis
have only approximately 1.6 million acres while the Navajos have over 16
million acres. Most of the current Navajo reservation was Hopi traditional
jurisdiction before the Navajos ever arrived in the Southwest.
................................
BGMTN:
High-grade, low-sulphur, strippable coal was discovered on exclusive Hopi
land and Joint Use land in the 1960s. Hopi/Peabody leases were signed in
1966.
......................................
BILL:
Why does the author only reference "Hopi/Peabody leases" when most of
the leased area is on Navajo Partitioned Land and the Navajos demonstrated
an eagerness to sign up. In fact, facilitating the extrication of natural
resources from the Navajo reservation is the predominant source of revenue
for the Navajo Nation, as are coal revenues the main source of revenue for
the Hopi Tribe. But, the magnitude of the presence of energy companies on
Navajo far out shadow the impact on Hopi. Revenues for Hopi from coal are
minuscule compared to the energy exploitation revenues paid to the Navajo
Nation.
................................
BGMTN:
A lawsuit was brought by traditional Hopi, challenging the authority
of their putative government and alleging contamination and depletion of
surface and ground water, destruction of 4,000 ancient Anasazi Cliff
dwellings and desecration of burial and other sacred sites. 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 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.
......................................
BILL:
This analysis is an SDN fabrication. Prior to 1974, Navajos dominated
the "Joint Use Area." Yes, there were at least 13,000 Navajos in the area.
But, this doesn't constitute a legitimate argument for their right to
stay. To the contrary, it exposes the extent to which their invasion of
Hopi lands was carried out. Their presence and their inclination to run as
much livestock as they possibly could with total disregard for the
stability and health of the grazing areas made it almost impossible for
Hopis to take advantage of this so-called "Joint Use Area." It was truly
not a JUA, it was totally dominated by the Navajos. Sharing fairly was not
a consideration for the Navajos on the JUA. To add to the insult, this
area has been almost totally desecrated by overgrazing. The method of
grazing by the Navajos is to graze until there is nothing left and then
move on, leaving the areas behind that will take decades to recover if they
ever recover at all. This is the nature of what uncontrolled sheep grazing
does to the ecology of an area. This was never a concern of the Navajos.
................................
BGMTN:
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 class action challenges the Navajo relocation
primarily by alleging that it destroys the Navajo�s 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.
..............................
BILL:
Consider this: If you value the sovereign rights of Tribes to
maintain jurisdiction over their own lands, why shouldn't the Hopis have
enough jurisdiction to control grazing and determine what non Hopi persons
they want to allow to live on their land? Why should a Navajo be able to
essentially own land on Hopi when Hopis don't even "own" land on Hopi?
Granted, compassion might dictate some other course of action with regards
the elderly. But, they want title that can be passed on to their children
and grandchildren. This is not an option
because, like other tribes, Hopi cannot start giving title to tribal lands
to non-members no matter what their ethnicity may be. And, they should not
have to.
I think the offer to enter into leases is a generous offer considering
that the Tribe would have justification in not allowing any non Hopi stay
on their land. The SDN resisters refuse to accept anything short of title
to the land. This is an impossibility.
................................
BGMTN:
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.
........................
BILL:
I have not seen evidence of "fraud, threats and intimidation."
................................
BGMTN:
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 the dam
burst and the water spilled into the Rio Puerco in 1979. 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.
.....................
BILL:
I would like to see the documentation of these alleged incidents.
................................
BGMTN:
Both signors and nonsignors
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 forcibly
removed and killed.
.............................
BILL:
Due to the extreme overgrazing that the area has experienced and the
long drought, it is essential to limit the numbers of animals grazing on
the area. It is my understanding that those who refuse have their animals
removed and possibly auctioned after a period of time. It is true that 6
decades or so ago the government enforced a sheep reduction program in the
area that affected both Navajos and Hopis. This was a horrible experience
for both and essentially ended the era of extensive Hopi sheep herding as a
means of livelihood. The confiscation of livestock that are out of
their permitted areas or are unpermitted or exceed the limitations caused
by previous overgrazing also happens to Hopis if they violate the
permitting and grazing restrictions. It just so happens that the resisters
continue to violate the grazing and permitting requirements of the Tribe.
So, they are the usual people who
experience these confiscations and fines. I know from direct experience
that even the former Chairman of the Hopi Tribe, Ferrell Secakuku, had
livestock confiscated when it got out of its
permitted grazing area and transgressed into restricted areas. The
Chairman also had to pay fines to recover his animals. This is a much
overgrazed area that receives very little rainfall. No
one can reasonably keep limitless numbers of livestock simply because they
don't want to acknowledge the jurisdiction of the sovereign nation upon
who's land they reside.
................................
BGMTN:
The Manybeads plaintiffs are now petitioning the 9th Circuit to revisit
the merits of their claims, alleging the failure of mediation. In addition,
the Navajo are pursuing political clout with the U.N. Human Rights
Committee and Commission, the White House, the BIA, the Department of
State, and other agencies.
2. Legal and historic context
a. International Human Rights and the Special Case of Native
Americans�The Historic Context.
The right of self-determination, the right to pursue one�s
religion and
culture, the right of access to legal remedies, the right to subsistence,
to equal protection of law under the Universal Declaration of Human Rights
....................................
BILL:
The Navajos on Hopi land have deprived the Hopis of these same human rights
by the actual taking of Hopi traditional lands.
................................
BGMTN:
(UDHR), the International Covenant on Civil and Political Rights (ICCPR),
and the International Covenant on Economic, Social and Cultural Rights
(ICESCR) are all implicated. Customary international law prohibiting
genocide and concerning aboriginal rights of use and occupancy of land also
apply,
....................................
BILL:
The Navajos had no qualms about depriving Hopis of their "aboriginal
rights of use and occupancy of land" that was under Hopi traditional
jurisdiction for centuries before the Navajos ever came to the area. I
do not take any major exception to the balance of this "Legal and historic
context" section presented by the author until that section at the end of
"b. Constitutional Rights and the Navajo Situation" wherein the author
states that "The U.S. also violates environmental laws in permitting harm
to the Navajo homelands and water table through mining and in seeking to
remove Navajo people............" I take strong exception to referring to
the area as exclusively "Navajo homelands." Remember, this was Hopi
territory centuries before the Navajos came to the Southwest. Also, Hopi
"homelands" as well as their current reservation lands are also suffering
from the harm being visited on them.
A major impact affects both the Navajos and the Hopis. Perhaps it
affects the Hopis more because it is their only source of water. The
"N-Aquifer" is rapidly being depleted by the slurry of coal from Black Mesa
to the Mohave power generating facility almost 300 miles away. Over 1.5
billion gallons of the most pristine water in the world are being drained
every year to transport coal across the desert. Hopi (and Navajo) wells
are drying up. This aquifer is situated such that it takes 10,000 years
for a drop of water to move from its replenishment source to the places
where wells can make it accessible for consumption. The depletion by
Peabody threatens to damage the actual structure of the aquifer in a way
that will not allow it to replenish itself. The manner in which the wells
are drilled and sleeved poses the serious threat of pollution of the lower
level "N-Aquifer" by higher level aquifers. The Navajo Nation has
consistently defended the right of Peabody to continue using this water to
slurry their coal. Water is less of an issue to Navajo because they have
access to rights in the Colorado River. Hopi only has the "N-Aquifer" and
a little rain as their source of water.
Mr. Rona's article appears on a web site:
<http://www.magiccookie.com/activism/black-mesa/gabor-rona-analysis.html>
Since this is available I will not include the rest of the article in
this e-mail. I will, however, make one more criticism that reveals an
ignorance of the history. In Mr. Rona's "Notes" appearing on the above web
site, he has indicated that "the Treaty of Guadalupe Hidalgo in 1848, by
which Mexico ceded its territory north of the Rio Grande to the U.S.," the
Navajos somehow secured "explicit rights to live unmolested in their
ancient territory." This is again a misrepresentation of the Treaty of
Guadalupe Hidalgo in order to mislead people into believing that somehow
the Navajos had been given some kind of Treaty rights based on a treaty
between the United States and Mexico. This is a complete fabrication.
Their is nothing in the Treaty of Guadalupe Hidalgo to secure for the
Navajos "rights to live unmolested in their ancient territory." The Treaty
refers to Mexican citizens living in the land transferred to the United
States "protected in the free enjoyment of their liberty and property, and
secured in the free exercise of their religion without restriction." A
question here might be whether or not the Indians were considered Mexican
citizens. From other language in the Treaty, there seems to be a distinction.
In one reference to Indians the Treaty language causes the United
States to have the responsibility for "exact[ing] the release of such
captives" of "any Mexicans [that] should now be held as captives by any
savage tribe within the limits of the United States." The Treaty also
mandates that as the United States was acquiring territories "now occupied
by savage tribes, who will hereafter be under the exclusive control of the
Government of the United States, and whose incursions within the territory
of Mexico would be prejudicial in the extreme, it is solemnly agreed that
all such incursions shall be forcibly restrained by the Government of the
United States....."
In other words, the Treaty of Guadalupe Hidalgo referred to the
Indians as the "savage tribes," required the United States to rescue
Mexicans that had been captured from these "savage tribes," and mandated
that the United States control the "savage tribes" from making incursions
into Mexico. I would not recommend looking to the Treaty of Guadalupe
Hidalgo for defense of the Navajos' rights to own land within the sovereign
jurisdiction of the Hopi Tribe.
There is one element of the Treaty of Guadalupe Hidalgo that has
proven beneficial to one specific group of Indians, however. Many of the
Pueblos of New Mexico held land grants from Spain, assuring the
preservation of their small territories, which were also honored by Mexico.
When the Treaty was prepared, Article X stipulated that the United States
would honor all land grants as valid. The Article was deleted from the
Treaty by Congress. But, other language was added at the end clarifying
that this did not annul the land grants of Mexico. The suppression of the
original article was apparently meant to take away the automatic
recognition of the grants and require that the "grantees may cause their
legitimate titles to be acknowledged before the American tribunals." In
other words, the U.S. would recognize the legitimacy of Mexican land
grants, but the grantees would have to have them acknowledged by American
courts.
What this did for the New Mexico Pueblos was secure their land
holdings, to some extent. I am not aware if any of them actually went
through the process of having their land grants "acknowledged by the
American tribunals." It should be noted that Hopi was not one of the
beneficiaries of a Spanish land grant.
Finally, I would add that for the Navajos on Hopi land, the offer of a
75 year lease is a generous offer considering that there is absolutely no
obligation on the part of the Hopis to accommodate any non Hopi residents
in their jurisdiction. This is a basic of sovereignty which is the only
thing Hopi is trying to achieve. All they want is to have jurisdiction
over their own sovereign lands. Hopis have actually been quite patient
throughout this whole ordeal. In view of the fact that they have lost most
of their land already to the Navajos, to offer some of them the lawful
right to stay on Hopi land is an act of bending over backwards.
I suggest to Mr. Rona that he do more than spend 5 days visiting with
one side of a controversy before he go public with his expert "analysis" of
the subject.
Thank you for listening,
Bill Havens
P.S.: For the balance of Mr. Rona's "analysis" that I did not copy into
this message, go to the previously mentioned web site.
Once in a while somebody has to stand up or everyone will forever remain
seated.
A footnote about Emily Benedek's book, "The Wind Won't Know Me." I also
read it about 5 or 6 years ago. It was very
interesting, especially in the area of exposing the Relocation Office. I
am not now convinced, however, that even all of that
information was accurate. In the book, Ms. Benedek took a clear position
of the Navajo as the victims in the whole affair.
Clearly, she made the same mistake as this Gabor Rona of primarily
conducting her research by interviewing Navajos. Later,
however, at a book signing in Santa Monica, she confided in me that since
she wrote and researced the book she had changed her
position and saw things more from the Hopi view of having already lost so
much to the Navajos. There are no winners in this
whole affair, unless you see the incredible resources that have been made
available to the Navajo Nation by virtue of having
taken so much from the Hopis.
Thanks for listening,
Bill Havens
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Tsonkwadiyonrat (We are ONE Spirit)
Unenh onhwa' Awayaton
http://www.tdi.net/ishgooda/
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