Dark Days on Black Mesa

The Hopi want one of the largest coal mines in North America to stop using their groundwater. If springs and wells dry up, their ancient culture may disappear.

A BIA memorandum describes a Boyden meeting with Interior Department officials in which he says "that remuneration for his services will depend largely on working out solutions to many of the Hopi problems to such a point that oil leases will provide funds."

The BIA approved Boyden's general-counsel contract in May 1952, triggering controversy on the Hopi reservation. While the protests caused the Interior Department to review BIA approval of Boyden's contract, in the end Boyden's appointment stood.

The lawyer turned his energy toward gaining federal recognition of the unofficial tribal council.

The original Hopi council had been created in the aftermath of the 1936 ratification of the Hopi Constitution. The constitution, however, was strongly opposed by Hopi religious leaders, the Kikmongwi, and many Hopi did not vote in the 1936 ratification election. More than 1,800 eligible voters stayed home. The constitution was approved by a vote of 651 to 104.

Tribal records reveal that BIA officials knew there was profound opposition to the constitution at the time it was ratified.

Oliver LaFarge, the federal agent supervising the election, noted in his diary that the Hopi were opposed to settling matters by majority vote because it leaves a dissatisfied minority.

"Their natural way of doing things is to discuss among themselves at great length and group by group until public opinion as a whole has settled overwhelming in one direction," LaFarge wrote. "Opposition is expressed by abstention," he concluded.

Nevertheless, the BIA approved the constitution and created the first Hopi Tribal Council.

But the constitution also required that the Kikmongwi approve councilmembers who were elected. Many Kikmongwi refused to do so. By 1942 several villages had failed to reappoint councilmembers, and the Hopi Tribal Council languished. By 1943 the BIA determined that the council had become dormant.

The unofficial tribal council soon evolved and operated through the 1940s and into the early 1950s.

Just as the area BIA director had predicted, Boyden's approval as general counsel soon led to the BIA's recognition of the unofficial tribal council in 1955. The approval came even though only seven of twelve villages had elected members to the council.

For much of the next seven years, Boyden and the tribal council attempted to resolve a contentious land dispute between the Hopi and the much larger Navajo tribe. In 1962 a federal court determined rights to 2.5 million acres of land; the ruling required several thousand Navajo and about a hundred Hopi to move from their homes to other areas.

The ruling also stated that the Hopi and Navajo would split evenly any proceeds from the rich coal deposits on Black Mesa.

Boyden had already banked $500,000 for representing the Hopi before the Indian Claims Commission. For his work on the land-dispute case, the Hopi Tribal Council paid Boyden an additional $1 million--$780,000 for legal services and $220,000 as an expression of the Hopi's "gratitude" for his work.

The fee was outlandish and was initially rejected by Arizona BIA officials.
"The Phoenix area office noted that the 7,800 hours spent, valued at the 'top price paid for top attorneys' at that time would be worth $273,000. It recommended approval of a $400,000 fee" because Boyden had forgone any fee for a number of years, tribal records state.

Boyden appealed the BIA's assessment to Secretary Udall in April 1965. Soon after, the Interior Department approved Boyden's $1 million fee.

While Boyden was working on the land-dispute case, he was also eliminating a hurdle that kept private companies from leasing Hopi land.

The Hopi Constitution prevented the tribal council from entering mineral leases without tribal approval. Boyden knew the majority of the Hopi were against leasing or mining their land. To circumvent the constitutional provision, Boyden asked Udall in early 1961 to delegate leasing authority to the tribal council so it could generate enough money to pay legal expenses in its land dispute with the Navajo.

Udall, who had just been appointed by Democratic president John F. Kennedy, directed the Department of the Interior to delegate mineral leasing authority to the tribe. This was a crucial decision for the Hopi and Boyden alike.

The tribe immediately began signing oil and gas leases with several corporations, generating $3 million. Some of those funds were used to pay Boyden's $1 million fee.

Hopi traditionalists filed suit in federal court in 1964, challenging the delegation of mineral leasing authority to the tribal council. But the suit was dismissed on the grounds that the council could not be sued because of its sovereign immunity.

The stage was set for Boyden to execute the Black Mesa coal lease with Peabody Western Coal Company.

The Hopi Tribal Council barely mustered a quorum--only eleven of seventeen councilmen were present--when it voted to approve a lease with a subsidiary of Peabody on May 16, 1966. Of the eleven who voted, only six had been certified by the Kikmongwi as the Hopi Constitution required.

The lease was negotiated on the Hopi's behalf by John Boyden.
"Nothing on record indicates that John Boyden ever provided the Hopi Tribal Council with any substantial analysis of the Peabody lease," Charles Wilkinson states in "Home Dance, The Hopi, and Black Mesa Coal: Conquest and Endurance in the American Southwest," a paper published last year in the Brigham Young University Law Review.

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