Dark Days on Black Mesa

Page 9 of 12

The lease was a terrible deal for the Hopi.
The tribe received only 3.3 percent of gross sales, about half the rate that the federal government was getting in mining royalties at the time. Numerous taxes were waived. The lease had no provision for renegotiations--a standard clause usually providing for a new pact every ten years.

The vast amount of land involved, 40,000 acres, was also far above the 2,560 acres that federal rules allowed for a single mining lease on Indian land. There are no indications that the tribe sought to have the acreage limits waived.

The lease was amended in October 1966 to allow Peabody to withdraw more than 4,000 acre-feet of potable water from beneath Black Mesa each year.

The lease called for the Hopi to receive a paltry $1.67 per acre-foot for the water--a rate far below the $30 to $50 that other industries paid per acre-foot at the time. The $1.67 figure was handwritten into the lease agreement. Hopi officials have been unsuccessful in trying to determine who wrote in the value.

The entire Peabody deal was negotiated in secret.
The Hopi people wouldn't learn details of the lease negotiated by Boyden until several years later, when Peabody began ripping Black Mesa apart.

Udall now says he was oblivious to Boyden's maneuvers.
"How he manipulated them and how he got it done, I don't know," Udall says. "The word that came to me was that they [the Hopi] had approved the lease."

Udall contends today that he would never have approved the lease "if the word came back the Hopi don't want it."

Yet Udall, very early in his tenure as interior secretary, had approved the delegation of mineral leasing authority to the council, a decision that allowed Boyden and the council to bypass the Hopi constitutional provision calling for a plebiscite before any leases were approved.

The delegation of mineral-leasing power removed a huge obstacle for Boyden, who by then was also working for Peabody.

Snowcapped mountains beckon through the window of Charles Wilkinson's small fourth-floor office at the University of Colorado Law School.

Wilkinson delves quickly into a topic that has been his life's work--the West. He is one of the nation's most prominent legal experts on public lands and Indian law and has followed the developments on Black Mesa for more than 25 years.

A 1966 graduate of Stanford University law school, Wilkinson cut his teeth on Indian law in 1971 when he joined the Native American Rights Fund. He began his academic career in 1975 at the University of Oregon's law school before moving to Colorado in 1987.

His numerous books and papers on environmental issues related to public lands and Indian reservations have won him widespread recognition. Outside magazine calls him the "West's foremost legal authority on natural resource management."

Wilkinson's discovery of Boyden's conflict of interest still leaves him unsettled, even though he's known about it for several years. Boyden's relationship with the Hopi is an important element in Wilkinson's upcoming book, Conquest and Endurance in the American Southwest.

"There was a level at which this was very uncomfortable for me," Wilkinson recalls of his discovery. "It just turns your stomach. Reading those letters is sickening."

The letters Wilkinson refers to are correspondence between Boyden and Peabody officials in the 1960s.

Rumors had persisted for years that Boyden was working for Peabody while also representing the Hopi tribe. But the rumors couldn't be substantiated. Boyden always denied ever working for Peabody, and the mining company denied that the lawyer worked for them. John Boyden's son and former law partner, Stephen Boyden, maintains that position today.

But files released by the University of Utah library contain letters between Boyden and Peabody officials discussing work Boyden did at Peabody's request. The records include Boyden's billings to Peabody for work done between 1964 and 1971.

While the university file is revealing, it is far from complete. "We can't tell when the relationship began or when it ended," Wilkinson says.

But what is clear is that there was a close and intimate relationship between Boyden and Peabody.

"The file discloses that Boyden represented Peabody in October 1964 at a hearing in front of the Utah State Land Board; he urged the board to sell Peabody land for a proposed power plant that would use Black Mesa coal," Wilkinson's article in the BYU law review states.

Records show that Boyden wrote a Utah businessman in October 1964 and claimed he was "connected with the company [Peabody]."

In July 1965, Boyden sent a letter to Ed Phelps, Peabody's vice president of engineering, promising to update Phelps after he met with Utah's governor. "I will get together with him and then promptly inform you," Boyden wrote.

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John Dougherty
Contact: John Dougherty

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