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Box 2574 :: :: Olympia, Wa Fido Net 1:352/333 :: :: 98507-2574 206-786-9629 :: :: USA The Quarto Mundista BBS :: ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: S. HRG. 103-47 NAVAJO-HOPI DISPUTE SETTLEMENT AGREEMENT-IN-PRINCIPLE HEARING BEFORE THE SELECT COMMITTEE ON INDIAN AFFAIRS UNITED STATES SENATE ONE HUNDRED THIRD CONGRESS FIRST SESSION ON THE VIEWS AND CONCERNS OF THE PEOPLE OF NORTHERN ARIZONA REGARDING THE NAVAJO-HOPI AGREEMENT-IN-PRINCIPLE FEBRUARY 10, 1993 FLAGSTAFF, AZ Statement of Chief Stanley Bahnimtewa to the working group of Indigenous populations, 31 July 1990. I am indeed honored and grateful that I have been given the opportunity to address you. I am Stanley Bahnimtewa, the Kikmongwi, the Chief of Oraibi. I am the successor to Chief Tawaquaptewa. Although he was not my natural father, he decided before I was born that I would be the next Chief. Therefore when I was a small child, he would take me every where with him. At times, we would be walking along and he would say to me. "Let us stop here so I can talk to you." We would sit down but since I was only a small child, I would quickly go off to play. After a while, he would notice that I was not listening and would laugh and say" Go ahead and play. I am putting my words inside of you. When you grow up and your turn comes to be Chief, you will recall all my words." True enough, when I became a Chief, I did recall all his words which were inside of me. Now I take care of my people according to those instructions which he left with me. However, let me say this: to be a Chief is a lot of work and responsibility. Now, let me say this about the Navajo Indians. They do not have any land. However, the Federal Government of the United States have allowed them to live on our land so now they think they own this land. But, let me say again, this is not their land. This is our land. But, let me say again: this is not their land. This is our land. This land belongs to us, the traditional religious leaders of the Hopi people. You have now heard this from me in person. Now, perhaps, you will believe the truth about our land. The Navajo does not have any land. I will now say: The Navajo must move off our land. I say this because they are trying to claim our land which is not theirs. I want you to hear this from me so that you will no longer give any credibility to the Navajo claim. Now: no one should ever say, this is the land of the Navajo because this land is not theirs. It is our land and has been for centuries. I have now said this and I am the Chief. If for some reason you still do not believe this, please come and visit my home in Oraibi and I will talk further with you. Let me say again: the Navajo has no land. He must, now, therefore move off our land. Finally, let me say this to all of you. I am very glad to see and meet so many of you from many Nations and races today. You are probably also glad to see me here also. I wish you all a safe journey as you return to your home. Let us all live in harmony and peace. For only as we live in harmony and peace will we see any good results of our labor. UNITED NATIONS ACTION ON THE ISSUE OF NAVAJO-HOPI RELOCATION WRITTEN TESTIMONY OF RUSSEL LAWRENCE BARSH February 10, 1993 It is unfortunately little known, here in the United States, that one of the United Nations' human-rights monitoring bodies has adopted a series of decisions expressing concern over the relocation of Navajo and Hopi families from the "HPL" and, as recently as August 27, 1992, extending its support for a mediated settlement such as the one which is now under review by the Senate. These decisions have been taken by the "Sub-Commission on Prevention of Discrimination and Protection of Minorities," an advisory body to the U.N. Commission on Human Rights. The Sub- Commission consists of 26 independent legal experts, and has a mandate to conduct studies, and alert the Commission to new situations involving violations of human rights. The U.S. press, which was quick to report the Sub-Commission's past actions on countries such as Iran, Iraq, and China, chose not to cover its decisions on the U.S. itself -- a New York Times reporter told me the story was simply unimportant. I also gather that the State Department has not referred these decisions to Congress. In my rapacity as General Agent for the Four Directions Council, an American-Canadian indigenous peoples' organization in consultative status with the United Nations Economic and Social Council, I had the privilege of arranging for individual Navajo and Hopi people to speak at several meetings of the Commission and Sub-Commission from 1987 to 1992. I also had the opportunity to assist informally in two studies of the situation by United Nations experts, and to help prepare all of the relevant resolutions and decisions adopted by the Sub-Commission. My testimony here refers not only to the official actions taken by the United Nations, but my personal observations of the political process and understandings that lay behind these actions. At this point I should emphasize that Four Directions Council has no direct interest in the Navajo-Hopi situation, other than to promote a peaceful settlement which respects principles of international human rights law. We have no legal or financial arrangements with any party nor have we sought funding in connection with our participation in the efforts to achieve a settlement. Our organizational charter, which is based on traditional values, commits us to providing an international forum for all indigenous peoples that ascribe to those values, and on this basis we have also provided technical support for advocates from indigenous nations in Australia, Canada, India, Japan, Panama, Taiwan, and elsewhere. Our principal aim is to make the United Nations system as a whole more responsive to indigenous peoples, and more effective. In this regard, we viewed the Navajo-Hopi dispute as an important opportunity to establish two precedents: (1) that "tribal" governments must respect fundamental human rights under international law, and (2) that the United Nations could provide direct assistance to indigenous peoples in settling disputes, and building more accountable political institutions. We believed that these precedents could be established in a situation in the United States with relatively little resistance, and then be extended to more sensitive situations abroad. Frankly, we did not anticipate the vehemence of the opposition we encountered from the U.S. Department of State, which overshadowed our modest success in engaging the cooperation of the Navajo and Hopi tribal governments. The Navajo-Hopi situation first came to the official attention of the Sub-Commission in 1987, as a result of statements made that summer by individual Navajo and Hopi people in the Sub-Commission, and at its five-member Working Group on Indigenous Populations. On the advice of the Working Group, the Sub-Commission decided to authorize two members of the Working Group -- the chairman, Dr. Erica- Irene Daes of Greece and Mr. Kwesi Simpson of Ghana -- to travel to the United States and prepare a background paper on the "relocation of Navajo and Hopi families" for further discussion. Mr. Simpson left the Sub-Commission a few months later, so their mission was never carried out. Navajo and Hopi people from the "HPL" continued to press for this study, however, and in 1988 the Sub-Commission re-authorized it (decision 1988/105 of September 1, 1988), entrusting the work this time to Dr. Daes and Judge John Carey, alternate member of the Sub-Commission from the United States. I must add, from my personal involvement in this decision, that Judge Carey's assignment responded to his own suggestion that an American would lend credibility and balance to the study, and help deflect any challenges by the Department of State. It was my privilege to assist Judge Carey by preparing a detailed paper on the history of the Navajo-Hopi land dispute, the development of the 1974 partition legislation, and its subsequent implementation. My work benefited from access to the files of the Select Committee on Indian Affairs which was graciously provided at Judge Carey's request. Judge Carey subsequently visited the "HPL" to meet with members of the affected communities, and Dr. Daes traveled to Washington, D.C. where she contacted the Select Committee and Interior Department. Two final reports were prepared (U.N. documents E/CN.4/Sub.2/1989/35 Parts I and II), reflecting somewhat different analyses of the role that should be played by the United Nations. Judge Carey considered it sufficient to leave the matter in the hands of the tribal and Federal governments, while Dr. Daes felt the U.N. should act as a facilitator. She drafted a formal resolution to this effect, which I helped her to prepare, and sought the co-sponsorship of other members of the Sub- Commission. The original draft contained the following substantive elements: THE SUB-COMMISSION .... BELIEVING that human rights and fundamental freedoms must be respected by institutions of local, internal or autonomous self-government, no less than by States, ... WELCOMES the initiatives recently taken by the Navajo Nation and Hopi Tribe to resolve the present situation by agreement; EXPRESSES the hope that involuntary resettlement will be suspended pending the conclusion of such an agreement; ENCOURAGES the parties to ensure the effective participation of the families and communities affected in the negotiation and implementation of any settlement agreement; REQUESTS the Secretary-General to offer appropriate assistance to each of the parties affected, including local organizations and communities of indigenous people affected by relocation... . I would like to highlight three points about this draft. It was not critical of the U.S. government, but implied that the problem lay with the failure of the two tribal governments to come to an agreement that involved the people living in the "HPL" and respected their human rights. It called upon the U.S. government to encourage mediation and help create a climate in which a fair, negotiated settlement could be reached. Lastly, it made an offer of U.N. technical assistance. This could have included education, publicity, and even some kind of direct U.N. involvement in mediation, depending upon arrangements worked out with the parties. People from the "HPL" were very excited about this possibility. Personally, I believed it would bring great moral weight to bear on the two tribal councils to reach a deal that they would not be ashamed to expose to global publicity. Indeed, there was also the possibility of other kinds of U.N. aid, for Navajo-Hopi social needs. Sadly, the U.S. government delegation at the 1989 Sub- Commission session was utterly opposed to any U.N. involvement in the situation, and only agreed to "roll over" on the condition that the offer of U.N. technical assistance be deleted. With this amendment, the resolution was adopted by consensus (Sub-Commission resolution 1989/37, September 1, 1989). As such, it lacked "teeth," amounting only to an appeal -- to the two tribal councils -- to settle the matter themselves in accordance with the principles of local participation and respect for rights. As you are well aware, the conflict over the "HPL" continued, and representatives of the affected communities continued to address their concerns to the Commission and Sub-Commission. An effort was therefore made to get agreement on a stronger Sub-Commission resolution in 1990. Dr. Daes circulated a draft that restored the reference to assistance that had been deleted from resolution 1989/37, but again met with very intense State Department opposition. Judge Carey struggled to help us find some compromise legislative language, bolstered by a letter from the Navajo Nation formally welcoming the possibility of U.N. aid, and by informal indications that the Hopi Tribe might reluctantly accept a U.N. role in the situation as well. This was all to no avail, as U.S. diplomatic pressure reached the stage of threatening the future of the Working Group on Indigenous Populations and the Sub-Commission itself over this issue. To insulate her Working Group, Dr. Daes shifted the principal sponsorship of the draft resolution to her friend Professor Claire Palley, the British member of the Sub-Commission. U.S. threats intensified, and Palley finally told me that, while the resolution was certain to be adopted by a majority, if voted, the political price was simply too high in the long term. Once again, the reference to United Nations assistance was deleted, and replaced by the less controversial request that the chairman of the Sub-Commission (Professor Danilo Turk of the former Yugoslavia -- he is now Slovenia's ambassador to the U.N.) contact all the parties to the relocation dispute to inform them about the new resolution. As amended, Sub-Commission resolution 1990/34 was also adopted by consensus. The U.S. delegation made a statement following this action arguing, like so many other countries that have been subjects of U.N. human-rights decisions, that it was intolerable interference with the internal affairs of a sovereign State. U.S. diplomatic pressure, especially targeting Dr. Daes and the Working Group, prevented the adoption of a similar resolution in 1991. I believe that Judge Carey was also subjected to considerable pressure from the State Department to abandon his valuable role as a mediator -- breaking a link, that was helping get the two tribal councils not only talking to the Sub-Commission but to each other as well. The intensity of these discussions of Navajo-Hopi relocation had meanwhile stimulated a broader debate on the human rights dimensions of population transfers and resettlement generally. In its resolution 1990/17 (August 30, 1990), the Sub-Commission asked Mrs. Christy Ezim Mbonu of Nigeria to prepare a working paper on this subject, which was published as U.N. document E/CN.4/Sub.2/1991/47. On the basis of this preliminary study, the Sub-Commission has decided to include the issue of resettlement in its annual program of work. Its resolution 1991/28 (29 August 1991) states, in part: ... CONSIDERING that the policy and practice of population transfer, including the removal of people and the implantation of settlers, particularly where induced or conducted by government authorities, invariably has serious consequences for the enjoyment or constitutes a serious violation of the human rights of the people removed, the original inhabitants of the countries concerned, as well as the settlers, ... CONVINCED that the movement of people is often achieved either without the free and informed consent of the people being moved or without the consent of the people into whose territory they are being moved, RECOGNIZES that population transfer affects the basic human rights and freedoms of the peoples concerned, including the original inhabitants, the people removed and settlers ... . The Sub-Commission spoke again on this general subject last year, in its resolution 1992/28 (August 27, 1992), but much more strongly: . . . RECOGNIZES that practices of population transfer constitute a violation of fundamental human rights... . Two members of the Sub-Commission, Professor Ribot Hatano of Japan and Mr. Awn Shawkat Al-Khasawneh of Jordan, were entrusted with preparing a study of the human rights dimensions of "the policy and practice of population transfer, in the broadest sense," to build further upon the Mbonu paper. It is expected that this will result in an authoritative statement of principles on involuntary resettlement, perhaps by 1994. It may be noteworthy that the Sub-Commission, in this resolution, referred to "ethnic cleansing" in parts of the former Yugoslavia as an example of the tendency of resettlement policies to be abused. Mbonu had referred at length to relocations ordered by the former Communist dictator of Rumania, which had been condemned by U.S. officials at the U.N. as tantamount to genocide. Human- rights activists are focussing increasingly on relocation as a policy easily abused and fundamentally wrong. Even the World Bank -- scarcely a radical institution -- recently called in question its own participation in India's Narmada watershed hydroelectric project, on account of the displacement of villagers. A U.S.-sponsored or financed resettlement, however it may have appeared justified to Congress 20 years ago, is nearly impossible to defend now to world public and professional opinion in the 1990s. In this evolving climate of Sub-Commission concern over the broad question of resettlement, it is not surprising that the Sub-Commission overcame continuing State Department objections to speak again on the Navajo-Hopi situation at its last session. Resolution 1992/36 (August 27, 1992) welcomed the court-ordered mediation of the land dispute and appealed to the U.S. Government to support the work of the mediator by avoiding any further resettlement of Navajo or Hopi families. This is not a condemnation of past U.S. policy or practices, but it is a clear statement that any future pressure on residents of the "HPL" to move -- whether from the Federal government or a tribal council -- undermines a peaceful, mediated solution and could be a violation of human rights. As an expression of consensus among members of the Sub- Commission including legal experts from the U.S., Britain, France, Japan, Norway, and the Netherlands, this may not be legally binding, but it is a test of U.S. credibility at the U.N. in the field of human rights. If the mediated settlement plan is rejected by Congress, and there is a fresh round of pressure and threats against "HPL" residents, I would expect somewhat more blunt criticism from the Sub- Commission and perhaps from higher U.N. bodies as well. The U.S. no doubt has the power to weather such criticism, if it chooses, and even to retaliate diplomatically. Or it could be one of the small but growing number of Member States that demonstrate respect for international law, and reinforce its influence. I wish you could see the U.N. human rights meetings as I do, each year, from the row of chairs at the back of the conference room where human-rights organizations are routinely seated. Governments such as New Zealand and Australia have grown more frank about the situation of their indigenous peoples, admitting past wrongs and present problems, and -- most importantly -- demonstrating a sensitivity to world opinion in the matter of future policies. They have used the U.N. as a forum for promoting a dialogue with their own indigenous leaders and U.N. legal experts, winning universal respect. By comparison, U.S. diplomats are generally defensive, hostile and uncooperative, leaving the impression that Indian conditions are much worse in fact than they really are. A positive U.S. response to Sub-Commission resolution 1992/36, and a new openness to U.N. involvement in helping Navajo and Hopi people rebuild after a generation of hostility and mistrust, would surprise everyone in the most favorable possible way. ANNEX A SUMMARY OF U.N. ACTIONS TAKEN ON NAVAJO-HOPI RELOCATION Sub-Commission decision 1987/110 (September 4, 1987) AUTHORIZED Erica-Irene Daes and Kwesi Simpson to undertake a study of the situation and report to the Sub-Commission's session in 1988. Sub-Commission decision 1988/105 (September 1, 1988) REGRETTED the incompletion of the Daes-Simpson mission under decision 1987/110, and authorized Daes and John Carey to complete the study of relocation and report to its 1989 session. Sub-Commission resolution 1989/37 (September 1, 1989) ENCOURAGED the Navajo Nation and Hopi Tribe to settle their present dispute by agreement, in a manner that avoids any further resettlement and includes affected communities in decision-making. Sub-Commission resolution 1990/34 (August 31, 1990) WELCOMED the evidence of increasing cooperation between the two tribal governments, restated the principles contained in its resolution 1989/37, and directed its chairman to contact all the parties. Sub-Commission resolution 1992/36 (August 27, 1992) EXPRESSES the hope that court-ordered mediation will succeed in producing a settlement that respects the rights and dignity of affected families, and appeals to the U.S. government to support this by avoiding any further relocations. ANNEX B TEXT OF SUB-COMMISSION RESOLUTION 1992/36 (August 27, 1992) 1992/36. Relocation of Navajo and Hopi families The Sub-Commission on Prevention of Discrimination and Protection of Minorities. RECALLING its resolutions 1989/37 of 1 September 1989 and 1990/34 of 31 August 1990 concerning the relocation of Navajo and Hopi families from northern Arizona in the United States of America, RECALLING ALSO the reports prepared by Ms. Erica-Irene Daes and Mr. John Carey (E/CN.4/Sub.2/1989/35, part I and part II and Add.1) pursuant to its decision 1988/105 of 1 September 1989, MINDFUL of the conclusions contained in the working paper on the human rights dimensions of population transfer, including the implantation of settlers and settlements prepared by Ms. Christy Mbonu (E/CN.4/Sub.2/1981/47), with respect to the impact of such activities on the enjoyment of human rights, 1. RECOMMENDS that members of the Navajo Nation and Hopi Tribe participate in court-ordered mediation to seek a peaceful settlement of the situation; 2. EXPRESSES THE HOPE that mediation will result in a settlement that respects the rights and dignity of the families directly affected; 3. APPEALS to the Government of the United States of America to ensure, through cooperation with the court-appointed mediator, that no further relocation of these families takes place; 4. REQUESTS the mediator to submit all relevant information regarding the human rights aspects of the case in question and the outcome of the mediation to the Sub-Commission at its forty-fifth session. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- To have a current Center For World Indigenous Studies Publication Catalogue sent to you via e-mail, send a request to jburrows@halcyon.com FTP ftp.halcyon.com /pub/FWDP/CWIS Center For World Indigenous Studies P.O. Box 2574 Olympia, WA U.S.A. 98507-2574 BBS: 206-786-9629 FAX: 206-956-1087 OCR Provided by Caere Corporation's PageKeeper