And now:Ish <[EMAIL PROTECTED]> writes:
Date: Wed, 7 Apr 1999 21:35:56 -0400
To: Ish <[EMAIL PROTECTED]>
From: Carol Halberstadt <[EMAIL PROTECTED]>
Subject: Re: Land Use Rights document attached
SOVEREIGN DINEH NATION
> P.O.Box 1968 Kaibeto, AZ 86053
> Phone: (520) 673-3461
> E-maiI: [EMAIL PROTECTED]
>
> OVERVIEW
>
> The Dineh living on Black Mesa are subjected to a large number of abuses
> by the tribal and US authorities and by the Peabody Coal Company. The
> general areas for which they need legal assistance would include:
>
> Lack of rights under the current tribal governments. This is the
> fundamental problem. The current tribal governments were largely created
> for the benefit of mining companies and continue to be funded and
> dominated by this industry. The US has given these institutions almost
> total control over the reservations, and the people on the land have no
> protection against abuse of this power. It is the most difficult
> problem to correct, both because the sovereignty granted to these
> institutions is well established in US law and because any support given
> to the people is portrayed as an attack on Indigenous sovereignty.
>
> Protecting their right to live on their traditional land. The 1974
> Hopi-Navajo Settlement Act required relocation of thousands of Dineh
> families. Over 12,000 people have been relocated, and the position of
> the few thousand who remain is precarious. Much of the focus of
> efforts to protect them is currently on the Manybeads v US case, which
> claimed that the relocation violated the right of the people to practice
> their traditional land-based religion. A court-ordered mediation in
> response to this case led to an Accommodation Agreement, that allowed
> some of the Dineh to remain on the land as tenants of the Hopi. The
> people are seeking attorneys to represent them in this case, as well as
> to pursue any other possible approach that could protect their right to
> remain on their land.
>
>
> Protection of burial and sacred sites. The primary violator is
> Peabody Coal Company, whose strip mining activities have destroyed
> countless burial and sacred sites. The Navajo and Hopi Tribal Councils
> support the mining and have intervened to stop all efforts of individual
> Dineh to stop the desecration.
>
> Protection of their livestock and civil rights. The Dineh living on
> Hopi Partitioned Land (HPL) face constant harassment by the authorities,
> including confiscation of their livestock, aggressive police tactics,
> and other forms of repression. In addition to needing support for
> long-term, large-scale solutions, the people need on-going access to
> legal aid to block illegal and abusive actions by the authorities and to
> provide representation in individual cases.
>
> The Dineh families are being denied fundamental rights and protections
> given to other US citizens, and desperately need legal assistance to
> fight these abuses. Different attorneys and legal aid institutions
> could assist in areas that match their expertise and interest.
>
> ******************************************
> Lack Of Rights Under The Current Tribal Governments
> ******************************************
>
> The current tribal governments operate under constitutions established
> under the 1934 Indian Reorganization Act. The governments set up in the
> 1930's were either ignored or strongly opposed by the majority of people
> on the reservations and were largely dormant until the early 1950's. At
> that time, white attorneys became involved - initially to obtain
> settlements for the tribes under Docket 196, and afterward to obtain
> revenues from coal mining leases. The attorneys (John Boyden for the
> Hopi, Norman Littell for the Navajo) initiated and controlled the major
> decisions by these governments between the 1950s and 1970s. The
> attorneys largely ignored the BIA-approved constitutions, such as
> requirements for approval by traditional leaders and representatives of
> the villages. The sovereignty granted to the tribal governments
> protected them against suits in US courts, and no remedies were
> available within the tribal government. While the era of control by the
> white attorneys ended in the 1970's, the current governments are funded
> by mining revenues and controlled by people who profit from these
> activities.
>
> Throughout this history, the United States Government has played a
> vigorous role in supporting the corporate governments and in suppressing
> the rights of Dineh and Hopi who wish to maintain their traditional
> society and religious practices. The US installed these governments over
> the strong objections of the people and has given these governments the
> financial and military support necessary to maintain their power. When
> the people have sought relief in US courts from the abuses of these
> governments, the US has claimed that the governments are sovereign
> powers and that the people can only seek redress from within the tribal
> governments, even though the US is aware that the these institutions
> provide no internal mechanisms for protecting the civil or religious
> rights of the people.
>
> In the 1960's, the federal judiciary intervened against sovereign state
> governments to protect the civil rights of victims of the segregationist
> policies of those governments. The Dineh have been stripped of the
> right to practice their religion and deprived of civil rights granted to
> other US citizens. The US government of the 1990's refuses to assist
> these victims, possibly because the mines at the heart of the conflict
> play a vital role in supplying energy to much of the West. The US
> maintains that all such abuses are necessary parts of settling
> inter-tribal conflicts and territorial issues, but the historical
> clearly shows that the two tribal governments which worked out this
> solution in the 1960's and 1970's were controlled by white attorneys
> tied to the mining industry working to advance the financial interests
> of themselves and their corporate allies.
>
> We do not understand the legal system well enough to suggest what type
> of strategy could be initiated by attorneys which could result in the
> establishment of civil rights for people subject to these governments or
> in the curbing of the abuses of power by these governments. We are
> aware that most of the fundamental policies of this system have been
> subject to previous challenges that were ultimately rejected by the
> highest courts, and that the prejudices of these courts may not have
> changed enough that we could expect a reversal of previous decisions.
> Protecting The Dineh People's Right To Live On Their Traditional Land
>
> The problem began when the white attorneys who took control of the
> tribal governments in the 1950's needed authority from the US government
> to begin issuing coal leases. The ambiguous status of the Black Mesa
> area prevented leases from being issued. The Executive Order of 1882
> which established what is now called the Hopi Reservation included both
> the mesas inhabited by the Hopi, and the surrounding areas which had
> always been occupied by the Dineh. The informal arrangement which
> subsequently evolved acknowledged this situation and protected the
> rights of all the people to remain on their traditional land, but the
> status of the land title was unclear. The attorneys asked Congress for
> the authority to issue leases, and the solution which they agreed upon
> was to file a friendly suit between the two tribal governments which the
> Supreme Court would resolve so as to clarify the ambiguous land title.
> The resulting Healing v Jones decision, issued in 1963, gave the
> attorneys the necessary leasing power, and the first coal leases
> followed shortly thereafter. The decision established the areas outside
> the mesas as Joint-Use areas where both Hopi and Dineh could live, and
> the mineral wealth beneath the land could be leased and the revenues
> split equally between the tribal governments.
>
> The Hopi government became dissatisfied with this arrangement. The
> families which occupied most of the positions in the puppet government
> were involved in the commercial cattle ranching business. Because
> almost all of the Joint-Use area was inhabited by Dineh, it was hard for
> them to use the land for their ranching. The white attorney who ran the
> council, John Boyden, and the coal companies had a different agenda:
> the dual-landlord system and the presence of the Dineh families
> complicated the issuance of leases for the coal companies, and the Hopi
> government was much more easily controlled than the often-chaotic Navajo
> government. So with strong backing from the coal-fired power industry,
> Boyden wrote and pushed through Congress a bill which replaced Joint-Use
with
> separate Hopi and Navajo Partitioned areas and which was heavily biased in
> favor of the Hopi.
>
> The people living in the area who would be affected by these decisions
> had little awareness and no involvement in the crafting of this
> legislation. Congress received no testimony about the land-based
> religion of these people which bound them inseparably to their ancestral
> homesites. It grossly underestimated the magnitude of the problem,
> thinking that only a couple of thousand people would have to be moved.
> It never even considered exactly where they would go. Ultimately, the
> only area which could be found was on the Rio Puerto River, a EPA
> superfund site contaminated by the nation's largest nuclear spill.
>
> As the magnitude of the problem became more apparent, the original
> supporters recognized their mistake. Barry Goldwater, one of the chief
> architects, stated it was the worst mistake of his legislative career.
> Officials hired to manage the program quit and called the program
> genocide. Various bills were passed by Congress trying to soften some of
> the provisions, and over $400 million in tax money was spent trying to
> relocate people, which involved two main options. The first was giving
> the subsistence sheep-herders who often could not even speak English a
> small amount of money and moving them into cities for which they had no
> survival skills. The other was to move them to the radioactive site
> where there were no jobs or available grazing lands.
>
> The Manybeads v. US lawsuit was filed in 1988 on behalf of the Dineh
> families that contested the relocation because it violated the religious
> rights of the Dineh families. The district court rejected the case, but
> upon appeal, the 9th circuit court asked the two sides to develop a
> mediated solution. That solution became known as the Accommodation
> Agreement, under which the Hopi would allow a limited number of 75-year
> leases under which Dineh families could remain on the land. The
> Agreement required authorization from Congress, that was granted in the
> 1996 Navajo-Hopi Settlement Act. The case has recently been returned to
> the 9th circuit with a number of issues not resolved.
>
> The US government is strongly committed to supporting this Agreement as
> the resolution of a difficult and long-standing problem. Most Dineh
> families strongly oppose the Agreement - the only time that it was
> submitted in a public meeting, it was voted down 207-1. The
> government's current solution is to force it upon the people - the
> efforts made to get signatures involved many forms of coercion and
> fraud. People's firewood & livestock were confiscated and the return
> tied to signing the Agreement. Some people (who can't read or speak
> English) had to sign papers for unrelated issues such as releasing their
> livestock from impoundment and found out later they had signed the
> Agreement. In other communities, the rangers began a campaign of
> intense harassment (stopping cars on the roads, citing people for
> trivial offenses, escalating livestock confiscations), and then
> officials called a community meeting and told residents that the
> harassment would end if they all signed the Agreement. Under the 1996
> Act, the Hopi get $263,000 per signature ($25 million for 95 signatures)
> and since no one wanted to sign, the motivation for pressure is clear.
>
> While the intention of the 1996 act was to provide a mechanism to allow
> the people to remain on the land, the actual impact may be the opposite.
> It allows the Hopi Tribal government to evict people who either do not
> sign the agreement or who are not eligible to sign. Since this agreement
> is the focus of US policy on the land title issue, a separate paper has
> been attached which lists some of the problems with the agreement.
>
> The people currently need legal representation in this case. The
> attorney who had originally filed the suit on their behalf agreed in the
> mediation process to support the agreement. When it became clear that
> most of the people strongly opposed the agreement, he agreed to
> represent only the plaintiffs who supported the agreement, so that he
> had few clients. Various attempts were made to find attorneys to
> represent the rest of the families, but most of the people are currently
> completely out of the loop, having no knowledge about the process and no
> involvement in it. Our understanding is that the next round of court
> papers needs to be submitted in December 1998.
>
> We are also open to other possible legal strategies to supplement the
> Manybeads case, and we would welcome the efforts of attorneys to assist
> in this area.
>
> ******************************
> Protection Of Burial And Sacred Sites
> ******************************
>
> The destruction of burial and sacred sites is not supposed to happen. In
> a decision by the Dept. of Interior Board of Land Appeals to revoke the
> mining permit in 1996, the court found two violations with respect to
> the protection of sacred sites. The mining permit was reinstated upon
> appeal, and the coverage of these violations in the Decision and the
> Reversal sums up the legal status of this issue.
>
> Law: Burial site destruction. Under SMCRA, no mine can come within 300
> feet of a grave or cemetery.
> Decision: Archaeological evidence estimates that around 100 Indigenous
> burial sites would be destroyed by the mining, so the permit is revoked.
> Appeal: While unmarked burial sites are in theory protected by the law,
> in practice the exact locations can not be proven because they are
> unmarked. Since the plaintiffs can not prove the existence of the burial
> sites, there is no factual evidence to support revoking the permit.
>
> Law: Burial and Sacred Site identification - the mining permit required
> the company to establish a committee that would allow the Dineh families
> to identify burial and sacred sites, so that disruption and desecration
> could be minimized.
> Decision: The committee was not set up, so the permit is revoked.
> Appeal: The Navajo Tribe, which entered the suit on behalf of Peabody
> Coal, testified that it had delegated this task to its Historic
> Preservation Department, so that this obligation has been fulfilled. The
> delegation had apparently occurred simultaneously with the filing of
> Peabody's appeal, and no mechanism has been provided that allows people
> to contact this department. Also, the Dineh associate archaeologists
> with the plundering of their sacred sites and are reluctant to provide
> information that would contribute to the looting of these sites.
>
> The situation on the area is distressing. Incidents have occurred where
> elderly people have placed themselves in front of bulldozers to prevent
> destruction of sites, and after they were forcibly removed they had to
> watch the bodies of their relatives being unearthed .
>
> In addition to destruction by the coal company, some sacred sites are
> being destroyed by Hopi Tribal authorities as part of their campaign to
> remove people from the area. The government has used bulldozers to
> destroy ceremonial hogans and structures when it arbitrarily determined
> that the structures did not have proper permits.
>
> We can provide documentation of these incidents and other aspects of
> this issue.
>
> ********************************
> Protection Of Livestock And Civil Rights
> ********************************
>
> The abuses faced daily by the Dineh living on Hopi Partitioned Land
> (HPL) are mostly tied to two separate issues: livestock and the lack of
> civil rights. Many of the traditional Dineh are subsistence sheep
> herders, who practice husbandry methods that have allowed them to live
> in balance with the local ecosystem for hundreds of years. The advent
> of commercial ranching in the 20th century, especially cattle grazing,
> has placed strains upon the ecosystem that required the establishment of
> a range management system administered by the BIA. The system requires
> permitting of all livestock and strict controls over access to specific
> grazing areas. The issuance of permits is a political issue, and the
> Dineh now living on HPL are the losers in the political arena.
>
> The impoundment of their livestock is part of a systematic effort to
> deprive them of their means of survival and force them off their land,
> and it has little connection to the impact that their small subsistence
> herds have upon the ecosystem. In addition to the problems in the
> permitting system, the enforcement often does not follow required
> procedures and occasionally is politically motivated. For example, a
> family that invited a UN investigator to their home received impoundment
> notices the next week. Impounded livestock are often abused, and the
> fees associated with retrieving impounded livestock are beyond the means
> of subsistence herders.
>
> The confiscation of livestock is the main flashpoint in the conflict
> between the Dineh and the authorities. It brings caravans of armed
> officials into the homesites of the people to haul away the animals on
> which the survival of the families depends. These confrontations have a
> high potential for escalating into violence.
>
> The 1974 Navajo-Hopi Settlement Act severed the Dineh families living on
> HPL of all civil rights. They are subject to the power of a government
> for which they are not allowed to vote and in which they are not allowed
> to participate. They are not allowed to participate in the judicial
> system in any capacity other than defendant, and their homes and
> property may be arbitrarily confiscated. They are required to get
> permits to hold religious ceremonies, as well as to obtain permits for
> routine daily activities such as gathering firewood, and the issuance of
> all such permits is at the discretion of a government that is openly
> hostile to them. The police and other officials do not speak their
> language, which heightens the terror experienced by the Dineh in all
> encounters with the officials. No remedial mechanism exists that allows
> the people any way to protest or contest any actions of the authorities.
>
> The official justification for this oppression is that the Dineh fall
> under the same classification as other non-tribal members who choose to
> live on reservations. The US court system has upheld the validity of
> such second-class citizenship when it was contested by people who
> entered the reservations voluntarily, such as non-tribal spouses who
> choose to live on the reservation. The Dineh families did not enter into
> the relationship voluntarily, but rather by an act of the US Congress.
> The law forced them to accept the loss of all their civil rights as the
> price for continuing to live on the land which their families had
> occupied for hundreds of years and to which they were inseparably bound
> by their religion.
>
> ---------------------------------------------------------
> Appendix A:
>
> Dineh Objections To The Accommodation Agreement
>
> *************************
> Problems Within the Agreement:
> *************************
>
> The Agreement does not achieve the stated goal of providing an
> alternative to relocation.
>
> The Agreement only covers a small part of the people living in the
> area. The Hopi Tribal government is required to offer 112 leases, which
> is sufficient to cover the number of families on the official "A" list.
> This list only covers a fraction of the families living in the area,
> many of whom avoid being listed on official lists out of fear that it
> targets them for eviction. The Navajo Nation estimates that 250-500
> families fall into this category. Congress was told by local authorities
> in 1974 that less than 3000 people would have to be relocated. To date,
> over 12,000 have been relocated and thousands more remain on the land.
>
> The Agreement does nothing to help the thousands of people displaced
> since 1974. The situation of these families is a tragedy which needs to
> be addressed.
>
> The long-term leases can be revoked for many reasons, such as being
> found guilty of minor infractions by Hopi courts, or for non-payment by
> the Navajo tribal government.
>
> The Agreement allots only 2800 sheep-year grazing permits to be
> divided among all the families, which is less than the number needed to
> sustain their traditional subsistence herding. The Agreement allows them
> to live on the land while denying them a means of survival if they do.
>
> Like the 1974 act which ordered relocation without thinking about the
> impact of the policy it was mandating, the current Agreement fails to
> provide a realistic mechanism for protecting the human rights of the
> Dineh:
>
> The people must live under the jurisdiction of a government (Hopi
> Tribal Council) in which they are not allowed to participate and which
> is openly hostile to them. The by-laws of the government discriminate
> against non-tribal members, and the laws are enforced by police and
> authorities who are prejudiced against the Dineh.
>
> Police and other authorities do not speak the language of the
> residents, so that communication is impossible.
>
> The Agreement forces the people to rely upon the good will of the
> Hopi Tribal government, as key issues are addressed with statements such
> as "He\she is free to apply for a permit". The experience of the Dineh
> is a history of broken promises and hostility from the government, so
> that rights handled in this way are assumed to be rights denied.
>
> No remedial mechanism is available to protect them against abuses by
> the government. The sovereignty granted to the tribal governments
> prevents the Dineh from going to US courts, and they are excluded from
> filing cases in the Hopi courts.
>
> Under the Agreement, the practice of their religion will place the Dineh
> in violation of the law. The agreement requires the Dineh to obtain
> permits to perform many of their religious ceremonies. The permits are
> not required for the ceremonies per se, but for actions needed to
> perform the ceremonies, such as building ceremonial arbors, using
> juniper branches, or building fires. While the Hopi government has
> stated that it will grant such permits, the power over Dineh religious
> observances has been transferred to a government that the Dineh can not
> trust. In many cases, the people will be unable to obtain permits, such
> as for ceremonies that can not wait for bureaucratic delays like those
> involving death or illness.
>
> Finally, the Agreement conflicts with basic teachings of the Dineh
> religion:
>
> The Dineh religion holds the people responsible for the protection of
> their ancestral land. The small homesites yield control over the land to
> agencies committed to destructive use of the land that violate the Dineh
> religion, such as strip mining and fencing. To give up control of their
> land to those agencies would abrogate their sacred responsibility.
>
> The agreement prevents the Dineh from burying their dead on their
> ancestral land as required by their religion.
>
> Agreeing to relinquish the land after a 75 year lease violates the
> responsiblity that the Dineh have to be stewards of their sacred land so
> that their children can continue in their religion.
>
> *******************************************
> Problems with the Process that Created the Agreement
> *******************************************
>
> The Dineh families were initially allowed to participate in the
> mediation, but the negotiations soon became a two-party discussion
> between the US Dept. of Justice and the Hopi Tribal Government. When
> the resulting Agreement was submitted at two community meetings, it was
> rejected 207-1 in Rocky Ridge, and by a similar margin at Mosquito
> Springs. Afterward, the mediation team avoided all contact with the
> people on the land, but reported to Congress and to the court that the
> people had endorsed it.
>
> The Hopi tribe is being awarded $25 million from the US government if
> it can obtain about 100 signatures on leases. This $250,000 per head
> bounty is resulting in extreme pressures being placed on the eligible
> families.
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Tsonkwadiyonrat (We are ONE Spirit)
Unenh onhwa' Awayaton
http://www.tdi.net/ishgooda/
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