Analysis of Dineh case & needs (Center for Constitutional Rights)

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 non-existent 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?

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.1 The 7,000 survivors of the march were concentrated at Ft. Sumner,
where many more died in the barbaric conditions of their internment. 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. Eventually, the Navajo surrounded the much smaller Hopi Nation.
In 1882, President Chester Arthur issued an Executive Order establishing the territory as a
reservation for the Hopi and Navajo.

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.

In 1934, Congress passed the Indian Reorganization Act.1 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 non-traditional governance, established a government recognized by the U.S.

Unsettled boundary issues between the Hopi and Navajo remained an obstacle to mineral
leasing interests. The 1882 Executive Order establishing the Hopi and Navajo Reservation did
not establish distinct Hopi and Navajo areas. In 1941, the BIA designated a portion of the 1882
reservation exclusively for Hopi use, and the remainder, as “Navajo/Hopi Joint Use Area.”

In the 1950’s, 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 Co. 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% 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 19582,
each tribe claiming the entire 1882 reservation. 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.

High grade, low sulphur, strippable coal was discovered on exclusive Hopi land and Joint
Use land in the 1960’s. Hopi/Peabody leases were signed in 1966. A lawsuit was brought by
traditional Hopi, challenging the authority of their putative government and alleging
contamination and depletion of surface and ground water,3 destruction of 4,000 ancient Anasazi
Cliff dwellings and desecration of burial and other sacred sites.4 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 1970’s 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 P.R. 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,5 dividing the Joint Use Area into Navajo Partition Land (NPL),
on which lived100 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.7 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.

Through the federally established Navajo Hopi Indian Relocation Commission,8 a total
bounty of $25 million to the Hopi was placed on Navajo Accommodation Agreement signatures,
resulting in fraud, threats and intimidation. The non-signing resistors who cooperate with the
ONHIR in their removal have some say in the location and construction of replacement housing.
Resistors who don’t 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 down stream
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 non-cooperating
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 signors and non-signors 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.

The Manybeads plaintiffs are now petitioning the 9th Circuit to re-visit 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 (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, as do rights under the Genocide Convention, the
International Convention on the Elimination of All Forms of Racial Discrimination, ILO
Convention 169 (Concerning Indigenous and Tribal Peoples in Independent Countries), and the
American Convention on Human Rights.9 The U.N. Charter’s provisions concerning the rights
of non-self-governing peoples has also been violated.

The rights and obligations of nations under the Vienna Convention on Treaties provide a
context for critical, fundamental and novel analysis of the status of indigenous tribes in
international law. At the dawn of the colonial period, the Indian nations were treated by colonial
authorities and their master governments as just that: nations, with whom relations were
conducted by treaty.10 This was consistent with then prevailing standards of international law,
which recognized a limit to colonial authority arising out of the mere fact of ‘discovery’.11 It
was also consistent with, and more probably the consequence of, a practical fact: the relative
strength and continent-wide presence of the tribes in contrast to the precarious east coast foothold
of the fledgling European colonies.

By the early nineteenth century, the loss of native land base to the irrepressible force of
manifest destiny destroyed the ability of the Indian nations to feed and otherwise provide for the
survival of their people. That fact, tempered by a lack of national will to affect the total
annihilation of native peoples, determined the standards that would govern Indian/federal
relations to this day. As a necessary corollary to their diminished status, Indian tribes were
declared by Chief Justice John Marshall to be “domestic dependant nations…in a state of
pupilage…their relation to the United States resembl(ing) that of a ward to his guardian.”12

A concomitant of the guardian/ward trust relationship is the plenary power doctrine,
pursuant to which Congress has exercised one and a half centuries of unbridled authority in
Indian affairs.13 Along with, and as a consequence of the Indians’ loss of land base and lost
means of independent survival, plenary power justified congressional and judicial usurpation of
the Indian nations’ sovereignty over their own people. By 1871, bi-lateral treaty-making was
outlawed in favor of legislation over people who, lacking citizenship, enjoyed no right of
representation.14 Responsibility for Indian affairs had shifted from the War Department to the
Department of the Interior, signaling the shift of Indian relations from the realm of foreign to
domestic affairs. The very existence of an Indian tribe and the identity of its members became a
prerogative of Congress. The Bureau of Indian Affairs thus replaced the buffalo.15

The guardian/ward/trust relationship and the plenary power of Congress over Indian
affairs, the two fundamental common law doctrines dominating all questions regarding Native
rights, both stem from the early nineteenth century era of crusading manifest destiny, when
Indians and tribes were at best, deemed savage inferiors in need of the civilizing effect of
assimilation, or at worst, savage obstacles to civilization in need of eradication. These doctrines
have no foundation in either the domestic or international law extant at the time of their
annunciation. Rather, they are hypocritical, utilitarian measures designed to create a rhetorical
construct pursuant to which the requirements of “utmost good faith” may be enunciated, while
genocide is performed on people relegated to being “strangers to the Constitution.”

b. Constitutional Rights and the Navajo Situation

Under domestic legal doctrines, the U.S. has violated its fiduciary/trust responsibilities to
the Navajo people and engages in unlawful racial discrimination, in violation of due process and
equal protection rights, by requiring Native people to vacate their land, while never having
required non-Natives to vacate Native lands. Relocation also violates the American Indian
Religious Freedom Act16 and the Religious Freedom Restoration Act.17 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 to lands that are contaminated by spills of uranium
contaminated water.

c. Looking Back to See Ahead

Attorney Lee Brooke Phillips, for the Big Mountain Legal Office and National Lawyers
Guild; The Center for Constitutional Rights (CCR), through Ellen Yaroshefsky; Rabinowitz,
Boudin, for the National Emergency Civil Liberties Committee; and Bruce Ellison were among
the attorneys who filed Manybeads in 1988. Today, no less than then, the case hits on all
cylinders of the public interest, including International Human Rights, Civil Rights, Racial
Justice, Government Misconduct, and Economic and Social Rights.

Over the years, the United States has assumed varying degrees of responsibility for Indian
survival. Federal Indian policy has fluctuated. During the treaty period, 1789-1871, Native
people were removed from their ancestral homelands and concentration onto reservations. Next
was the disastrous drive toward forced-assimilation (1871-1928) followed by a period stressing
tribal reorganization (1928-1942). Thereafter came the “termination” of tribes, at least in the
sense of federal oversight (1943-1961). Since the 1960s, there have been schizophrenic strands
of all the prior policies combined with ideals of self-determination. It is in this historic context
that Felix Cohen analogized our treatment of Native Americans to the canary in the coal mine.18

Native Americans are now the poorest, least healthy, least educated minority in this
country. They have the highest rate of infant mortality, the lowest life expectancy, and are more
likely to be victims of violence than other minorities. While many laws are violated to keep
them that way, the historic drive to dispossess Native Americans has fomented a legal cottage
industry of hypocrisy called federal Indian law, much of it in violation of international law,
under which oppression and destruction of Native American is codified. The Navajo’s
experience exemplifies what crimes can be rationalized under the rubric of due process. As such,
it is a case requiring reform, as well as enforcement of the law.

This is a propitious time for a frontal assault on the retrograde doctrines used to justify
the oppression of Native Americans in general, and the Navajo, in particular. Enthusiasm is
waning in the executive and administrative offices responsible for Navajo relocation. Perhaps
authorities do have the stomach to forcibly remove hundred year old grandmothers from their
homes, but not if the whole world is watching and the people resist. One bureaucrat is alleged to
have said “It is becoming increasingly difficult to attract people of competence and integrity to
administer a program of genocide.”

It was false and racist premises that characterized the shift from respect for tribes as
nations, to their denigration to subjects of plenary power. Now, there is an opportunity to
advocate for the reinstatement of treaty-based dealings, based upon the right of
self-determination and consistent with the requirements of the Vienna Convention on Treaties.
As a law reform case, the Navajo situation presents an opportunity to push the legal envelope in
the interest of justice for the underdog. Since the law and the Navajo situation can’t get much
worse, efforts can only help save a people from destruction, and in the process, advocate for a
new, humane construct for relations with Native Americans and tribes.

This case also presents an opportunity for Native people to continue to build a presence
and credibility in international human rights advocacy at the United Nations and before
administrative and executive organs of the federal government, such as the BIA, Department of
Justice and the State Department.

3. Individuals or groups who are committed to do legal, organizing and/or education
work.

In addition to existing counsel of record that remain active in the case, legal assistance
may come from other attorneys with proven track records in Native rights advocacy,
organizations that advocate for environmental justice and religious freedom, former government
officials familiar with the issues involved in relocation policy, historians, anthropologists and
other academic experts.

There is a substantial support network of extremely energetic, articulate and well
connected advocates for the Navajo cause. The Dineh’s organizational name is Sovereign Dineh Nation
and they have cultivated relations with influential and sympathetic authorities in the U.N., and in
relevant federal agencies. There is also reason to be optimistic about the potential fruit of efforts
to win backing in Congress. As a result of organizing and lobbying efforts to date, the U.N.
Special Rapporteur on Religious Intolerance made a site visit last year and will present his report
to the Human Rights Commission in Geneva this spring. It is the first time a U.N. Human Rights
organ officially and publicly took on investigation of a specific case against the U.S. Also as a
result of their efforts, meetings have, and will continue to be held with policy level people in the
BIA, Department of Justice, State Department and White House.

This is a notorious case that also draws interest and offers of cooperation from the
nation’s best known Native law scholars, historians, anthropologists, psychologists, celebrities
and mainstream and alternative media. The work of the U.N. will be a substantial catalyst for
media attention and a powerful source of pressure, mostly through “quiet diplomacy” on U.S.
policy. CNN and Time Magazine are working on stories that will culminate with a possible
confrontation over grazing rights in the course of the next several days or weeks. Other media
organizations have demonstrated interest and one law firm has offered assistance as a networking
resource.

4. Summary of status and needs

a. The Manybeads case is pending in the 9th Circuit. Remand would be to the U.S.
District Court of Arizona. Otherwise, there will be a Cert. Petition to the U.S. Supreme Court.
The Dineh need help in the court case.

b. There is also a need to support the substantial activity on behalf of the Dineh taking
place at the United Nations (New York and Geneva).

c. A lobbying presence needs to be established in D.C., in connection with the authority
of various federal agencies, Congress and the White House.
d. There also needs to be a legal, or quasi-legal presence on the reservation i) to assist
people with day-to-day issues arising in connection with livestock confiscations and with the
ongoing abusive activities of the Relocation Commission, and ii) to act as a link between the
clients and advocacy efforts taking place on their behalf.

e. Finally, there is another urgent need that if addressed, will help the people
immeasurably, and without regard to the success of efforts to prevent their relocation. The Dineh
resistors’ life consists of an intolerable web of jurisdictions and regulations affecting their ability
to graze livestock, to repair and improve their homes, to gather firewood and to maintain sources
of potable water. The law recognizes different degrees of right and privilege in these matters for
those eligible to sign accommodation agreement than it does for the non-eligible. Of the eligible,
it distinguishes those who have signed from those who have not. Of those who have signed, it
creates sub-classes of privileges based on distinctions concerning full-time presence vs.
temporary absence from the land. Of those who are ineligible or who choose to not sign, it
creates distinctions based on a family’s indication of desire (or lack) to cooperate in their
relocation. Since only heads of household are recognized as eligible to sign accommodation
agreements, survivors of deceased signors loose their beneficiary status.

Only a police state can enforce such intrusive regulations that meet with understandable
resistance because they have such a dramatic impact on the ability of individuals and
communities to survive. Armed Hopi, Navajo and BIA police and rangers who maintain
constant surveillance. One eighty year old woman’s horse was impounded while she attended a
meeting. Thirteen armed rangers in four vehicles arrived at her home and physically held back
her non-resisting son while they removed the horse. She then received a bill for over $800, the
cost of the impoundment operation. There are many such stories, akin to the Chinese
government’s humiliating tactic of sending a bill for the cost of the bullet to the family of its
execution victim.

A complex and abusive bureaucratic machinery, now of at least two generations’
duration, has imposed a heavy psychological burden on the Dineh. It has lead to great fear and
loss of hope and dignity. The sense of desperation and depression is pervasive. In addition, the
existence of different classes of rights accorded by law or regulation to different categories of
Dineh people has created confusion and divisive schisms in the community. Quite apart from
assistance and advocacy designed to improve their legal situation, the Dineh need and can benefit
from psychological intervention and community mediation efforts.