Copyright © 1999 NLThomas
All Rights Reserved

Analysis of Dineh Case and Needs

Submitted by:
Gabor Rona, Senior Staff Attorney
Center for Constitutional Rights
666 Broadway
New York, NY 10012
Phone: (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?

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. 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. Under the guise of support for the ideal of self-determination, tribes were encouraged and pressured to establish electoral, "representative" governments that oil and mining companies and the BIA could more easily control than they could traditional leadership. In 1936, an election boycotted by the majority of Hopi opposed to nontraditional governance, established a government recognized by the U.S.

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 1950s, lawyers seeking self-enrichment at the expense of the tribes, insinuated themselves, with BIA approval, as counsel for tribal governments formed through their efforts. John Boyden, a Salt Lake City lawyer was retained as Hopi counsel. Boyden, a Mormon Deacon, also represented the Peabody Coal Company and was counsel for the Mormon Church, which owned a controlling interest in Peabody Coal. (Thus, Peabody eventually gained subsurface rights on exclusive Hopi territory for a fraction of fees paid elsewhere, and continues to lease mineral rights in Navajo/Hopi territory to this day.) Attorney Norman Littell was hired by the Navajo Tribal Council. His contract provided him with 10% 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. 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 1960s. 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, 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.

          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.

          Through the federally established Navajo Hopi Indian Relocation Commission, a total bounty of $25 million to the Hopi was placed on Navajo Accommodation Agreement signatures, resulting in fraud, threats and intimidation. The non-signing 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 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 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 (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. 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. 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’. 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 pupil age...their relation to the United States resembl(ing) that of a ward to his guardian."

          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. 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, bilateral treaty-making was outlawed in favor of legislation over people who, lacking citizenship, enjoyed no right of representation. 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.

          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 Act and the Religious Freedom Restoration Act. 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 analyzed our treatment of Native Americans to the canary in the coal mine.

          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 cannot 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 Bureau of Indian Affairs (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 been held 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. The Christian Science Monitor featured a front-page story on January 26, 1999. 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 subclasses 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 lose 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 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 led 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.

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