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On 1 February 1996, a meeting of the Diné Dahyikah Ada Yaltii ("Voice of the Navajo families") convened. The group was formed in March 1995, for the purpose of negotiating directly with the Hopi Tribe. It consists of representatives of the dozen or so Diné communities that continue to occupy traditional lands that were designated "Hopi-partitioned Lands" (HPL) in the process of enforcing the Navajo-Hopi Land Settlement Act of 1974 (PL 93-531). The Diné Dahyikah is an organization of Diné families modelled on chapter government. Whatever positions the group takes are discussed first and acted upon only after a vote.
Throughout last spring and summer, the group met with the Hopi negotiating team to seek "clarifications" of the Hopi Tribe's most recent settlement offer, referred to as the "Accomodation Agreement." This agreement, the successor to the Hopi lease which was rejected by the Diné families in 1993, includes lease provisions as well as an outline of the rights and responsibilities of the Diné families and the Hopi Tribe. It is a master document, which each family must sign individually. The lease agreement is printed verbatim starting at the end of this article; it is essential reading for those who wish to understand the pressures under which the Diné are operating at this time.
The Hopi Tribe has consistently taken the position that negotiations with the Navajo Nation and the Diné families are over, and that the settlement was a take-it-or-leave-it proposition for the Diné families. What actually happened over the course of the summer and fall is that the families secured a number of "clarifications" of the Hopi position, the most important one being a concession that the agreement's purpose is to protect the religious rights of the Diné. In these negotiations, which were themselves called "clarifications," the families were aided by a new mediator, David Lombardi, who was called the "mediator's (i.e., Judge Harry McCue's) representative."
Beside the religious rights issue, there were also concessions on land use and family homesites which will improve the terms that each Diné family will receive from the Hopi Tribe, if and when they sign their individual Agreements. The terms may improve if the Diné have the technical support they need to document their religious sites, traditional land uses, and customary use areas. Without that documentation, the family agreements will almost certainly be open to later re-interpretation by the Hopi Tribe and the federal government.
At the meeting of 1 February, some new information was provided by Katherine Hazard, the US Department of Justice attorney who has been representing the federal government for the past year. According to Hazard, the US and the Hopi Tribe recently concluded separate, private negotiations in which the US has agreed to compensate the Hopi Tribe, in return for a Hopi agreement not to pursue damages claims against the US. The total US liability to the Hopis is in the range of $400-500 million. Under the US-Hopi agreement, the US will pay the Hopi Tribe a total of $50.2 million, and will then convey into trust for the Hopis up to 500,000 acres of land which will be purchased using that $50.2 million.
The payments and land conveyance are scheduled this way: $2.4 million will be transferred for dismissal of the damage claims (already completed); $22 million more will be transferred when the Hopi Tribe receives authorization from Congress to enter into 75-year leases with the Diné families; $10 million more will be transferred when 65% of the Diné families have signed lease agreements and the rest of the Hopi-Navajo lawsuits are dismissed; and finally, $15.1 million will be transferred when 75% of the Diné families have signed leases or agreed to relocate. If fewer than 75% of the families relocate or sign agreements, the US is released from paying the last installment and from converting the land into trust. In that case, the families who do sign will not see their agreements voided. However, if the US reneges on any part of its agreement, including the conversion of land to trust, then the Hopi Tribe will be permitted to bring suit for damages against the US.
Ominously, the US-Hopi agreement also commits the US to evict Navajo families who have not relocated or signed leases with the Hopi Tribe by 31 December 1996. Relocation will be carried out according to the terms described in PL 93-531 (25 U.S.C. 640(d) et. seq.) which authorizes a house to be built in the "New Lands" (about 150 miles from the HPL), after which the Diné family is given 30 days to move into it. If the family does not move within 30 days, the Relocation Office then arranges for US Marshals to remove the family from their home by force. Under the US-Hopi agreement, the evictions must be completed by February 2000. The Diné are quite disturbed by the likelihood of evictions. It is almost certain that some families, especially those at Big Mountain, Tonalea, Mosquito Springs/Teesyatoh, Coalmine Mesa, and Cactus Valley/Red Willow Spring, will resist removal with all the means at their disposal.
Will there be evictions? The person who will determine that is Senator John McCain, Chairman of the Senate Committee on Indian Affairs. He has the power to make changes in the current settlement agreement to address the concerns of those who are not ready to sign on for the current package. If it is possible to modify the settlement so that it works for all the Diné families, this can be done only through the legislative process, to which McCain holds the key. The Senate hearings were scheduled for March 28, but they were announced on March 18, which gave the Diné only ten days to figure out how to make a trip to Washington, if they wanted to testify. Only one individual from Big Mountain was able to attend. Understandably, the Diné are concerned about the decisions the Senate reaches. The Big Mountain people sent Senator McCain a letter enumerating the problems they face with the current "agreement." Their letter is printed in full at the end of this article, following the "Residential Homesite Lease" agreement.
The meeting of 1 February was open to all of the HPL communities, most of which participated during the course of the "clarification" talks. Attending the meeting were a number of tribal officials, including Attorney General Herb Yazzie, and members of Navajo-Hopi Land Commission Office. Attorney General Yazzie reported that the Navajo Nation is concerned about its $22-25 million liability resulting from the various lawsuits authorized by PL 93-531 and also the rent payments which the Nation must pay under the Accomodation Agreement. Under the Zah administration (which ended last year), the strategy of the Navajo Nation was to secure the best possible agreement with the Hopi Tribe, then to lobby aggressively to change the 75-year lease term to a permanent settlement, and to fight for some protection for the families in case the Hopi tribe abuses its jurisdiction over them. Inauspiciously, the new Navajo Nation administration of Albert Hale has cancelled all contracts for lobbying and public relations on Navajo-Hopi issues.
Ray Russell, who is Roman Bitsuie's replacement as Director of the Land Commission Office, talked briefly about the work they are doing to document Diné homesites (Project Keyah). They plan to begin documenting land use, customary use areas and sacred sites sometime in June. This does not allow enough time to do the job completely. Based on previous experience with the Hopi Tribe, it can be predicted that the families will be denied any later claims to uses of lands which are not explicitly stipulated in their agreements.
Roger Attakai, President of the Diné Dahyikah, was not happy with the US presentation. His view, which he stated very clearly to Ms. Hazard, is that the US was using the Diné families, and particularly using the Manybeads negotiations as a vehicle for discharging its own liabilities. In his view, the US government has sacrificed the possibility of a just and decent settlement in order to save money and stay out of court.
Attorney General Yazzie presented a resolution recommending that the Diné families and the Navajo Nation Council sign the Accomodation Agreement. After the resolution was read, President Attakai asked for a motion and a second. There wasn't a sound for a long time, then Alfred McCabe from Sand Springs area moved for approval, with Jack Hatathlie from Coalmine Mesa seconding. On the vote, it took a long time for the hands to go up, everyone waiting to see how the others would vote. In the end the vote was 11-0, with 2 abstaining. The abstainers were Mr. Alvin Clinton and Ms. Judy Keyonnie from Teesto.
The meeting highlighted a north-south split among the Diné families. Except for Jack Hatathlie, there was not a single representative from the northern communities attending. It remains to be seen whether the northern communities will be able to organize and present a common front, or whether each family will go its own way. In the southern areas--Teesto, Jeddito/Whippoorwill, Sand Springs/Tolani Lake/Yadesgedeh--most of the families will probably sign agreements. In the northern areas--Big Mountain, Tonalea, Mosquito Springs/Teesyatoh, Coalmine Mesa, and Cactus Valley/Red Willow Spring--some families will sign agreements but there will be many that refuse. Many families are still undecided at this time.
For those who consider writing to their Congressman about the settlement, its seems pertinent to remember what happened in 1986. In that year, McCain and Morris Udall sponsored legislation for a 365,000 acre land exchange. Support groups organized a letter-writing firestorm against the bill. McCain gave up, and the bill was allowed to die for "lack of support." Now the Diné families' dearest wish is for a land exchange, but this is politically impossible.
While people are anticipating the outcome of the Senate hearings, they are faced with other difficulties. Recently, the BIA notified the Diné that they have thirty days to reduce their livestock to the numbers specified in their permits. If they do not do so, their permits will be cancelled and livestock confiscated. The deadline for stock reduction was set as March 28, the same day as the Senate hearings.
As usual, there are questions about the future plans for mining in the Big Mountain area. There has never been discussion of mining per se in the Manybeads mediation and negotiations, except to forbid the Diné families to mine at their homesites(!). However, under Article E(1) of the current Accomodation Agreement, the Diné have a voice in land use changes, especially those involving an expansion of the Peabody mine leases. The Hopi Land Use Plan designates most of Big Mountain as wilderness, grazing land or recreation areas. These designations would have to change before mining could be allowed.
On a positive note, the Dineh Alliance recently achieved a major victory in a court ruling to revoke Peabody Western Coal Company's permit to operate the Kayenta Mine. The Dineh Alliance filed an appeal last year, when Peabody applied for renewal of its permit. The judge ruled that "Peabody's mining permit has violated the Surface Mining Control and Reclamation Act of 1977, the National Environmental Policy Act, failed to obtain surface owner consent of the people living in their customary use area, failed to identify historic burials bound to be destroyed by mining, destroyed sacred sites and graves, caused blasting damage to residents' homes, polluted the air and ground water, affecting the health of Indians and killing their sheep." Peabody is expected to appeal the ruling, of course.
for more information, contact:
Jon Norstog
PO Box 1718, Window Rock, AZ 86515
tel: (520) 871-3445
e-mail: dh88691@goodnet.com
Louise Benally
Dineh Alliance
PO Box 810, Piñon, AZ 86510
e-mail: dineh@primenet.com
internet: http://www.primenet.com/~dineh/index.html
The Big Mountain Diné Families
c/o Violet Ashike
PO Box 148, Kykotsmovi, AZ 86039
Sen. John McCain, Chair
Senate Indian Affairs Committee
838 Senate Hart Office Bldg., Washington DC 20510
(Attention: Steve Heely)
Fourth World Bulletin • Spring/Summer 1996
Copyright © 1996 by the Fourth World Center
Created by Aigis Communications, Ltd