DENVER – A Hopi group contends that the Department of the Interior cannot equitably serve tribal and government interests at the same time and should disqualify itself from simultaneously representing the Hopi Tribe and the Office of Surface Mining in a controversy over coal development.
The Obama administration is being asked to “act on its promises to change how the federal government treats Native Americans” in connection with the current conflict and with a long-standing issue of shortcomings in the federal trusteeship.
According to Hopi tribal members, the interior’s Office of the Regional Solicitor General in Denver is representing OSM over an appeal of the mining regulatory agency’s decision Dec. 22, 2008 to grant a life-of-mine permit to Peabody Western Coal Co. on Black Mesa in northern Arizona.
The permit extends an existing lease by 100 square miles and opponents argue it could result in further industrial use of pristine aquifer water on Hopi ancestral lands, with accompanying damage to financial, cultural, ceremonial and other natural resource rights and uses.
“The federal government, when called upon by a tribe to represent its interests in a particular case, cannot claim to be a competent, ethical trustee if it represents an adverse party in the same case,” the Hopi said in a March 13 letter to the Office of the Regional Solicitor General. “That violates a trustee’s ethical duty.”
Instead, the interior is asked to arrange for outside counsel to represent the Hopi Tribe and OSM separately.
The government “has botched its trust obligations over the last few centuries” and the Senate Committee on Indian Affairs has “laid much of the blame on the Office of the Solicitor General,” the Hopi said through legal counsel.
The letter and a related petition object to a motion by Peabody to dismiss a request for a hearing at the Interior Department. The initial hearing request was filed by a number of Hopi and Navajo organizations and their supporters, including environmental giants Sierra Club and Natural Resources Defense Council.
Those cited as directly affected in the current filing are Hopi tribal members living on- and off-reservation who believe the permit revision granted to Peabody does not protect their financial and cultural interests as owners through the tribe of the natural resources on Hopi lands.
The Hopi have both material and non-material interests in Black Mesa, but “Peabody’s sole motive, on the other hand, is money,” the current petition states. “Peabody is not a member of the Hopi Tribe. It does not share petitioners’ religious, cultural and historical interests in this case.”
The long-standing controversy over coal mining on Black Mesa has been heightened by internal strife on the Hopi tribal council, split over leadership, the degree to which the tribe should exert direct control over mining operations, and other issues.
Ben Nuvamsa, the last tribal chairman, and Todd Honyaoma, vice-chair, both stepped down Dec. 31, and an interim government, questioned as to its legality by Nuvamsa, was put in place.
In an executive order issued his last day in office, Nuvamsa demanded the interior act as tribal trustee to “intervene on behalf of the Hopi Tribe and appeal (OSM’s) Record of Decision on every basis necessary to reverse the decision.”
“Your office cannot represent the Hopi Tribe’s interests and the Office of Surface Mining’s interests in the same adversary case simultaneously,” read the Hopis’ letter to the regional solicitor general. “After all, a trustee’s primary duty is undivided loyalty to the beneficiary’s interests.”
“We understand that the federal government has the odd tradition of representing adverse interests when Indian matters are being litigated or contested. But an error long continued is still wrong.”
Vernon Masayesva, founder of the Black Mesa Trust and a former Hopi tribal chairman, and others have charged that the permit for Peabody was pushed through by OSM in the waning days of the Bush administration before adequate time or opportunity for full tribal review.
The Obama administration, on the other hand, “is committed to meaningful reform of the broken system that manages and administers the trust lands and other trust assets belonging to tribes and individual Indians,” states the letter.
President Obama is “committed to resolving equitably with both tribes and individual Indians litigation resulting from the past failures in the administration and accounting of their trust assets.”
Critics are attempting to invalidate the life-of-mine permit extension on Hopi and Navajo lands that would allow renewed mining of approximately 5,950 acres of remaining coal at Black Mesa for which no purchaser or end user has been identified.
OSM has declined comment on matters in litigation.
