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Colonialism and energy policy in Indian country

In his Perspectives piece "Energy can fuel a future of promise" (Indian
Country Today, Vol. 24, Iss. 29), Hopi Chairman Wayne Taylor Jr. projected
an air of optimism that is belied by the energy situation on the Hopi and
Navajo reservations. Under leases signed by both tribes, Peabody Coal has
been operating two mines, Kayenta and Black Mesa, for the last 40 years.
While the revenue from these mines has provided a substantial part of the
revenues for both tribes, the poverty and unemployment rates at both Hopi
and Navajo remain historically high and the environmental damage,
particularly to the Navajo aquifer that provides water to both tribes, has
been devastating due to the process of slurrying the coal from the Black
Mesa mine to Southern California Edison's Mohave Generating Station at
Laughlin, Nev.

Because of its air pollution, the Mohave Station is currently under federal
decree to fix the problem or cease operating by Dec. 31. At the same time,
grassroots pressure from both Navajos and Hopis, including former Hopi
Tribal Chairman Vernon Masayesva, compelled the Navajo Nation Council in
July 2003 to vote against the continuation of the use of the aquifer by the
same date, though this resolution is non-binding.

The situation remains in limbo, with the Coconino aquifer (serving
Flagstaff and Winslow power plants, among others) is being discussed as an
alternative; while, according to a story in The Los Angeles Times published
on June 6, 2004, Navajo Tribal Chairman Joe Shirley and Taylor, who backed
disconnecting from the Navajo aquifer, are now calling for an extension of
the 2005 deadline.

There are other issues involved. The joint Navajo-Hopi mining operation
with Peabody Coal is one of the results of a series of congressional acts
and subsequent court cases going back to the early 1960s and known
collectively as the Navajo-Hopi Land Dispute. The dispute itself originated
in 1882 but did not enter the courts until an act of Congress, driven in
part by Peabody Coal, allowed the tribes to sue each other in federal court
to determine possessory rights, surface and subsurface, to what was then
known as the 1882 Reservation. The result of this collaboration between
Navajo and Hopi tribal councils, corporate lawyers and the federal
government, which ultimately divided the surface rights to the area while
mandating continuing joint ownership of the subsurface, has been the
displacement between 1977 and 1996 of an estimated 14,000 to 17,000 Navajos
from their traditional lands. Because of an act of Congress in 1996, the
2,000 - 3,000 Navajos remaining on what are known as the Hopi Partitioned
Lands (HPL)find themselves renters with 75-year leases to what is their
historic land.

While at present the strip mining is taking place north of the HPL on
Navajo lands, both the Hopi Comprehensive Development Plan and Peabody's
designs point to the distinct possibility of mining operations moving south
in the next few years, as the present veins of coal are exhausted. The U.S.
Office of Surface Mining Web page (last visited on Jan. 1) confirms this:
"... on May 26, 1998 the Hopi Tribal Council by majority vote approved
mining on the Hopi Reservation limited to the current leasehold area and
the J7 Pit. In a letter dated June 8, 1998 OSM was notified of the Hopi
tribal approval of mining on the Hopi Reservation." If this were to take
place (and who is to say these projected mining limits will not be expanded
as the need arises) the results would be to quite literally undermine the
way of life now being maintained by the Navajos who remain on the HPL,
among whom are some of the most traditional elders in the Navajo Nation,
bearers of a cultural heritage that is crucially tied to their land.

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Chairman Taylor's optimistic vision of "environmental balance" within a
coal-based economy (an essentially contradictory vision) needs to be placed
within this history: a history that is fundamentally colonialist. While the
tribes hold the subsurface rights, these rights cannot be exercised without
the approval of the Department of the Interior, the administrative arm of
Congress, that has "plenary power" in Indian country - a power that has
included from its inception the effective control over title to these lands
through the legal mechanism of "trust."

The Navajo Nation is well aware of how this trust relationship works in
mining matters. In 1993 it brought a suit of $600 million in damages for
"breach of trust" against the United States for what can only be called
collusion between the Department of the Interior and Peabody Coal in 1987
to depress royalty rates in the renewal of the lease held solely by the
Navajo Nation (the other lease is the joint Navajo-Hopi lease). In March
2003, reversing the appellate court, the Supreme Court decided that in any
sense requiring compensation no such breach of trust existed (123 S. Ct.
1079).

In Indian country, as this decision suggests, the dice of federal Indian
law are loaded on the side of the federal government and the corporations.
Further, the colonial game has kept most of the tribes chronically
undercapitalized (the per-capita income in Indian country is roughly a
third of what it is in the rest of America; and the tribes, taken together,
continue to have the highest unemployment and poverty rates in the nation).
This undercapitalization coupled with the legal regime ensures that
Chairman Taylor's "quest for energy independence" will not occur unless a
revolution takes place in Indian country that finally breaks with the U.S.
colonial regime. Meanwhile, the most hopeful energy projects are those
local, grassroots efforts, seeking independence from corporate and
governmental power; that reject the use of fossil fuels for wind, water and
solar solutions.

Given the ongoing colonial regime in Indian country and considering the
history of U.S. imperialism that put this regime in place, it is
particularly disheartening to hear Chairman Taylor echo the words of a U.S.
foreign policy that continues its historic imperialism in the Middle East,
when he asserts: "We cannot continue to put our economic future into the
hands of politically unstable and philosophically radical nations." One can
only remark here that these words ironically replicate the rationale used
by the U.S. government to justify the military invasion of Indian country
in the 19th century; and, no doubt, if the truth be told, its continued
occupation today.

Eric Cheyfitz is Goldwin Smith Professor of English at Cornell University,
where he is also a faculty member of the American Indian program and
teaches federal Indian law. Marie Gladue is an enrolled member of the
Navajo Nation who has worked as a community organizer on issues driven by
the Navajo-Hopi Land Dispute.