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Stakeholder Submission FORGOTTEN PEOPLE, INC. A Nonprofit Corporation and Non-Governmental Organization of Survivors of the Navajo-Hopi Land Dispute in the United States of America for the UNITED NATIONS WORKING GROUP ON BUSINESS AND HUMAN RIGHTS United States Country Visit, Flagstaff, Arizona 27 April 2013

Working Group Mission The Working Group on the issue of human rights, transnational corporations and other business enterprises was established on 6 July 2011 by United Nations General Assembly Resolution No. A/HRC/RES/17/4. There are eleven specific mandates to the Working Group, including country visits, work with non-governmental organizations and representatives of indigenous organizations. The methods of work of the Working Group, revised on 30 November 2012, include standards for country visits and field work that require a spirit of promoting constructive dialogue with States and stakeholders about implementing the Guiding Principles and eliciting information from stakeholders to make findings and recommendations that respond to practical and operational realities on the ground for reports and recommendations to the Human Rights Council and General Assembly. There is recognition within the United Nations that the activities of corporations, and particularly extractive industry corporations, raise serious concerns about the human rights of indigenous groups. Aside from events leading up to the General Assembly Resolution that created the Working Group the Commission on Human Rights identified the problem of the responsibilities of international corporations and human rights in Resolution No. 2005/69 (20 April 2005) as did the later Human Rights Council in Resolution No. 8/7 (18 June 2008). The United Nations Committee on the Elimination of all Forms of Racial Discrimination addressed such issues in its concluding observations on the reports of the United States of America on the subject of Elimination of Racial Discrimination. No. CERD/USA/CO/6 (8 May 2008). CERD identified issues affecting the human rights of indigenous peoples in the United States, including the problem of negative activities involving nuclear testing, toxic and dangerous waste storage, mining or logging in areas of spiritual and cultural significance to Native Americans and the adverse effects of economic activities connected with the exploitation of natural resources ... on the right to land, health, living environment and the way of life of indigenous peoples living (in countries outside the United States). Id., 29, 30. There was a related finding in 19, regarding the United States failure to deal with the situation of the Western Shoshone [Nevada] indigenous peoples and prior Committee action on it, and it is important 1

because the Committee directed a specific query on that issue that raised the question of whether not the United States complies with its international obligations in Indian treaties. The question is the rights of indigenous groups to lands that remain under their control under treaties and lands where such groups retain usufructuary rights, as in the findings in 29. This group and Dooda Desert Rock, as grassroots indigenous civil society members, lobbied Special Rapporteur on the rights of indigenous peoples, the Hon. James Anaya, on extractive industry human rights issues, and his 11 July 2011 report to the Human Rights Council paid special attention to Extractive industries operating within or near indigenous territories. Report No. A/HRC/18/35 (11 July 2011). The report acknowledged the Protect, Respect and Remedy framework of principles previously endorsed by the Human Rights Council, Id. 25, and identified the principles as a foundation for a preliminary plan of work on the issue of extractive industries and human rights. Id., 75-76. The General Assembly of the United Nations stressed the fact that the obligation and the primary responsibility to promote and protect human rights and fundamental freedoms lie with the state and endorsed the General Principles on Business and Human Rights to implement the United Nations Protect, Respect and Remedy Framework in General Assembly Resolution No. A/HRC/RES/17/4 (6 July 2011), second preamble paragraph and 1. Therefore there are international human rights standards that the Forgotten People can utilize in this communication to the Working Group to guide its conclusions and future reports as the result of its visit to the United States of America. Interest of the Commentator The nonprofit corporation, Forgotten People, Inc. is a Navajo Nation nonprofit corporation and non-governmental organization with a service membership of Navajos who accurately can be identified as the survivors of the Navajo-Hopi Land Dispute. They are Navajos who live in areas confirmed to ownership by the Hopi Tribe; Navajos who were relocated from Hopi lands; Navajos who suffer in a land area set aside for relocation (in Northern Arizonathe New Lands); and Navajos affected by an imposed federal government prohibition of all development in disputed land areas, including improvements to existing homes and other structures called the Bennett Freeze. It lasted from 1966 through May 8, 2009 and intensified the poverty of Navajos and Hopis living in the area. The Forgotten People began as an ad hoc organization that appeared before organs of the United Nations to communicate the distress of Navajos over violations of their human rights. On 7 March 2008, as Commissioner Patrick Thornberry of CERD wrapped up Commission comments to the head of the United States Mission, Thornberry specifically asked that the United States report on the situation at Big Mountain (within the Bennett Freeze area) when presenting its next report under the international anti-discrimination convention. That report very much concerns the interests of The Forgotten People. (No such report has been filed and it is long overdue.) The Forgotten People particularly stressed human rights violations from relocation and actively 2

advocated provisions that are now found in Article 10 of the Declaration on the Rights of Indigenous Peoples, prohibiting forcible removal of indigenous peoples from their lands and providing for the free, prior and informed consent of those concerned and after agreement for just and fair compensation and an option of return. Their advocacy helped make that declaration of human rights a reality. It is, as Professor Siegfried Wiessner stressed in a reassessment of indigenous sovereignty under the Declaration, and a recitation of six elements of an appropriate framework for indigenous identity, the core of a third basic claim for such identity. Siegfried Wiessner, Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rights of Indigenous Peoples, 41 Vanderbilt J. of Transnational L. 1141, 1174-1175 (2008): The third important claim, which ought to be heeded, is the indigenous peoples cry for free, prior, and informed consent before the government takes any measure affecting them. That includes relocation and other displacements as well as significant impairment of their distinct heritage. Id. (emphasis supplied). The Forgotten People initiated litigation to invalidate a proposed Navajo Nation-Hopi Tribe on the Intergovernmental Compact between the two Indian nations that concluded the lengthy and destructive Navajo-Hopi Land Dispute on 3 November 2006. The Tuba City District Court of the Navajo Nation dismissed the suit and an appeal followed. The November 29, 2007 decision of the Navajo Nation Supreme Court declined action on the compact that was concluded the year before, but upheld the ability of Navajos to contest application of the terms of the compact in the Navajo Nation courts in the future. Bennett v. Shirley, No. SC-CV-21-07 (Nav. Sup. Ct. November 29, 2007). The Forgotten People attempted an unsuccessful intervention with the Secretary of the Interior to block his approval of the compact, and the U.S. Congress subsequently ratified the compact and the Bennett Freeze was lifted by President Obama on May 8, 2009 when he signed legislation to formally conclude the freeze. The core problem is that, throughout the term of the conflict, the freeze and attempts to deal with the severe and genocidal (with the term being used precisely in terms of intentional harm done to an identified group of indigenous people) effects of the same and the concluding compact, that did not assess individual suffering or provide effective remedies for it. The Forgotten People class is most victimized by its own government. One attempt by Congress to deal with adverse impacts of the dispute was authorizing the Navajo Nation to select limited numbers of acres of federal land in New Mexico and Utah to make up for lands surrendered to the Hopi Tribe. There was an associated trust imposed on selected lands that they were to be used and managed for the benefit of Navajos who were adversely affected by land dispute events. There was also a specific trust set up for their benefit, the Navajo Rehabilitation Trust, that was to be managed by the Secretary of the Interior and funded by congressional appropriations and income from lands selected by the Navajo Nations. The major purpose of land selections was to be for relocation of Navajos being moved off of lands allocated to the Hopi Tribe. The Navajo Nation selected a large parcel of land in northwest New Mexico as its selection in that 3

State, and the area is known as the Paragon Energy Ranch. It as chosen because of a large bed of coal underneath with the thinking that coal extracted for nearby mine-mouth coal-fired power plants would generate income to help Navajo relocation victims. It turned out that the coal is a poor grade of combustibility and of no use to the nearby mines. The Ranch remains unused, but it utilized for various ill-conceived schemes for energy development. Any monies from Paragon Ranch are to flow into the Navajo Rehabilitation Trust fund, managed by the Secretary of the Interior, and he (now she) has both a trust and fiduciary responsibility to oversee that trust funds are spent for the benefit of the class of Navajos the Forgotten People represent. Instead, the secretary has turned funds over to the Navajo-Hopi Land Commission of the Navajo Nation Council with no controls, oversight or requirements to report and account for expenditures. The Navajo-Hopi Land Commission is a body or committee of the Navajo Nation Council that was originally set up as a political oversight body to advise on Navajo Nation actions in dealing with the Navajo-Hopi Land Dispute. Its organic statute does not authorize it to receive, expend or otherwise control monies from the Rehabilitation Trust. It does so anyway, with no effective oversight by the Navajo Nation Council. The grievances the Forgotten People have over violations of federal and Navajo Nation trust and fiduciary responsibility are being asserted in an action for an accounting before the Window Rock District Court of the Navajo Nation in Cause No. WR-CV-258-10 (filed on August 4, 2010). The complaint lays out the trust and its violation by both the Secretary of the Interior and the NavajoHopi Land Commission and demands a full accounting of all monies received by the Navajo Nation for the Forgotten People survivor class. The government has delayed the suit and judicial inefficiency has blocked it. A review hearing will be held before a new district judge on 13 May 2013. The Peabody Coal Case While the class the Forgotten People represents has many grievances and issues, the focus of this portion of the intervention is mining and associated activities by the Peabody Coal Company on and near the Black Mesa Plateau in Arizona. It signed an initial agreement with the Navajo Nation for mineral rights and use of an aquifer in the area in 1964 and signed a similar agreement with the Hopi Tribe two years later. It is said that the advantageous contract was signed, giving unusually advantageous terms, and done without clear authority by the governments of the respective Native American tribes. It was negotiated by an attorney for the Hopi Tribe who was also on the Peabody payroll. It continues to operate under renewed leases. There is a disconnect between Peabodys land use rights and the rights of the people who live on the land. For example, while the United States leases and grants usufructurary mining and water use rights with the consent of Navajo Nation government, such is largely done ignoring individual customary and aboriginal rights. There are two Navajo Nation statutes on what must be done when the Navajo Nation government disposes of land with an improvement or grants a lease, permit or permission for the use of Navajo Nation land. The first statute, at 16 N.N.C. 1401 4

(2005), requires the Navajo Nation to pay damages to the rightful claimant of any improvement on the land so granted. Damages are fixed by negotiation and consent of the President of the Navajo Nation and the individual involved. A second statute, on compensation for economic damage to intangible interests at 16 N.N.C. 1402 (2005), requires compensation to Navajo Indian land users for the value of any part of such land for its customary use by any Navajo Indian formerly lawfully using the same to the extent such use is destroyed or diminished. The Navajo Nation is required to pay for such use, including the expense of removing such person, his or her family, and property to any new land made available for his or her use. Compensation is restricted to those making lawful and authorized use while providing for compensation for customary use. The term customary use for purposes of statutory authorization has been construed in the Navajo Nation Supreme Court decision in Hood v. Bordy, 6 Navajo Rep. 349 (Nav. Sup. Ct. 1991). That was a situation where a breach of contract involving the purchase of a home required interpretation of whether or not the seller had title to the home by way of customary use ownership. 6 Navajo Rep. at 352-353. The Navajo Nation Supreme Court recognized that there are valuable and tangible assets that produce wealth, and The most valuable tangible asset of the Navajo Nation is its land, without which the Navajo Nation would not exist and without which the Navajo People would be caused to disperse like the Jewish People following the fall of Jerusalem. Land is basic to the survival of the Navajo People. Id., 353. While the ownership of land always remains vested in the Navajo Nation as a whole ... we have recognized the custom that individual Navajos who use or improve the land with buildings, corrals, fences, etc., create for themselves a customary use ownership interest: (emphasis supplied to show that land use alone can create a customary ownership right). Id., 354. While individual tribal members do not own land similar to off reservation, there exists a possessory use interest in land which we recognize as customary usage. Id. (citation omitted). The Court then interpreted 16 N.N.C. 1401 and the statutes that followed as the Navajo Nations implicit recognition that Navajos may acquire a private ownership right to improvements on land which belongs to the Navajo Nation. Id., 355. Accordingly, there are two statutes that limit any land use right held by Peabody Coal, with slightly-different procedures, the first of which requires the payment of the fair value of any improvements on land by negotiation and consent, and the second of which requires compensation for the value of land subjected to use by another, including the costs of removal of the occupant. The process for valuing payment is also a consensual one that involves the President of the Navajo Nation and the individual involved. The term individual means any customary user and that persons individual participation and consent is required as a condition subsequent to any lease to Peabody Coal. It needs to be noted, parenthetically, that United States federal law recognizes individual aboriginal title to land that is established when an Indian can show that she or her lineal ancestors continuously occupied a parcel of land, as individuals, and that the period of continuous occupancy commenced before the land in question was withdrawn from entry for purposes of settlement. United States v. Lowry, 512 F.3d 1194 (9th Cir. 2008). The Navajo Nation test precedes and precludes the federal definition, but the right is one honored in the national law of 5

the United States. The Peabody Coal company has engaged in practices over its long term of mining on or near Black Mesa since the 1960s that were not remedied in the recent renewal of the operating permit for its mine. See, Feds renew operating permit for Peabody coal mine, Business Week January 11, 2012 (AP Report). There are several problems that raise serious questions about Peabody non-compliance with international human rights standards and the corporate responsibility to respect human rights stated in Part II of the Guiding Principles: The most serious issue is that of relocation. While the international human rights standard, stated in Article 10 of the Declaration, is free, prior and informed consent of the indigenous peoples concerned, with agreement on just and fair compensation and an option for return, that has not been done. Instead, when the environmental assessment was done by the Office of Surface Mining, Peabody falsely represented that people in the area affirmatively desired to relocate and their consents were obtained. That was not true. In fact, there has been no meaningful information provided to the residents of the area, in the Navajo language, and no evidence of agreement, including agreements on just and fair compensation for everyone involved. It appears that there is confusion over the Navajo Nation responsibility, and particularly that of the President of the Navajo Nation, over compensation for improvements and intangible property rights, and it is important that both Navajo Nation and federal law recognize a human right to aboriginal or customary use, occupation and title to lands. Only some residents are receiving compensation directly from Peabody Coal, and payments are made on an arbitrary and selective basis, and the nature of Navajo Nation compensation is not clear. It is not clear to use whether Peabody has a lease of coal lands as a possessory land tenure or only the right to disturb the surface and extract coal or utilize ground and subterranean waters. Given that such is not clear, then the people have difficulty claiming their specific rights under separate legal regimes. Individuals who remain on the land have the common law right of quiet enjoyment. It is The right of a purchaser, or lessee, not to have his proper use and enjoyment fettered or substantially interrupted by any act of the vendor, or lessor.... Encyclopedia of Real Estate Terms Quiet Enjoyment (London: 2004). In this particular case, the Navajos of Black Mesa are aboriginal owners of land use rights, that are also customary, and quiet enjoyment is denied by threats and harassments of residents by Peabody employees, who are attempting to bully people out of their homes, noxious mining activities that endanger health and safety (including wind-borne contaminants), ground water pollution, and refusal to communicate with the peopleto the preference of bullying and intimidation. One of the methods of bullying is an imposed, and unauthorized, prohibition or freeze on construction of maintenance of remaining homesteads, including improvements to buildings and outbuildings and fencing. There are ongoing threats of eviction by relocation, in violation of the Declaration, without any offer of compensation for readjustment, and the people of the area have no legal counsel to exercise their rights of participation in legal process. That violates the provisions of section III of the Guiding Principles on adequate remedies and the requirement of Article 22 for business enterprises that they must identify adverse impacts they have caused and provide for remediation 6

through legitimate processes. There are very large doubts about the legality of Peabody Coal disruptions of quiet enjoyment and harassment to evict residents, under both human rights principles and Navajo Nation law, and Peabody is responsible to pay for counsel to defend against arbitrary and illegal relocation efforts. There is also the issue of just compensation for land use rights and improvements and for adequate relocated to safe and decent areas and lodging. Professor Siegfried Wiessner stresses the importance of protecting against indigenous heritage in the article cited above that discusses six elements of indigenous identity, and that is also an issue. It recently came to light that salvage archaeology is taking place as mining progresses and that artifacts of indigenous culture of Black Mesa are being taken to the Center for Archaeological Investigations at Southern Illinois University at Carbondale, Illinois, far from Black Mesa. There has been no consultation with the people of their area to obtain the consent for removal of their property, and there are complaints of disturbances of graves and ancestral settlement sites where personal and property is being illegally taken. Assessment The Working Groups 30 November 2012 methods of work require the team that is visiting Northern Arizona to actively engage with stakeholders, such as the Forgotten People, to ensure that any findings and recommendations [regarding them] respond to practical and operational realities on the ground. The standards used to assess local conditions are the Declaration on the Rights of Indigenous Peoples and the three overall requirements of the Guiding Principles, as stated in the General Principles at page 1, namely: States existing obligations to respect, protect and fulfil human rights and fundamental freedoms; The role of business enterprises as specialized organs of society performing specialized functions, required to comply with all applicable laws and to respect human rights; and The need for rights and obligations to be matched to appropriate and effective remedies when breached. The Guiding Principles state standards for states, business and remedial bodies and institutions in three sections. The Navajo Nation is a state in the international law sense by virtue of its treaties with the United States of American, and most particularly the Treaty of June 1, 1868 concluded at Fort Sumner, New Mexico Territory, and by virtue of satisfying the elements set out in the Montevideo Convention on Rights and Duties of States (1933), namely having a permanent population, a defined territory, stable government, and independence. See, Ian Browlie, Principles of Public International Law 72-74 (1990). The objection to independence is 7

answered by the fact that the Navajo Nation has treaties with the United States, and with predecessor states of Spain and Mexico, and it in fact exercises the self-determination guaranteed in the Declaration on the Rights of Indigenous Peoples. The problems shown here demonstrate that the Navajo Nation has not observed its obligations, as a state, to respect and protect the human rights and fundamental freedoms of the Navajo survivors of the Navajo-Hopi Land Dispute. That is related well in the report of the host for the Working Groups visit to Flagstaff, the Navajo Nation Human Rights Commission, in its detailed report The Impact of the Navajo-Hopi Land Settlement Act of 1974 (July 2012). The activities complained of here are set out in the report in detail, as are the failings of the Navajo-Hopi Land Commission, and the Commission made 16 concrete recommendations to remedy specific denials of rights and freedoms at pages 65 through 68 of the Report. Item No. 8 and page 66 is timely because of the fact that the Twin Arrows Casino, that has a lease to its site from the Navajo Nation, is specifically bound by the terms of the trust that is complained of in this submission, with no guarantee that proceeds will be earmarked for the benefit of the trust beneficiary population. The problem is that the Navajo Nation Human Rights Commission does not presently have legal enforcement authority to implements its findings and recommendations of violations of human rights. While the Commission has determined that its work is limited by the Declaration on the Rights of Indigenous Peoples, the Navajo Nation has not adopted that document. This submission shows that the Navajo-Hopi Relocation Commission lacks statutory authority to carry out Navajo Nation state obligations to assure compliance with human and legal rights and that it has affirmatively failed to account for trust lands and monies it assumed control to manage. It also shows that the Navajo Nation, as a state, has failed to properly oversee due diligence in establishing mechanisms for local consent and adequate compensation and it has failed in assuring quiet enjoyment for area residents and compensation due to them. The failings of Peabody Coal are many, but they can be summarized by its failure to obtain free, prior and informed consents for its operations, and for relocation and salvage archaeology appropriation of cultural property (which is also indigenous property in international law), its failure to do human rights due diligence and its violations of Navajo Nation and international standards without regard for proper remedies. The Peabody Coal Company affirmatively owes a resulting duty on remediation of its adverse impacts by providing funding to the Forgotten People for legal representation. Conclusion The Forgotten People thanks the Navajo Nation Human Rights Commission for its invitation for the Working Group to specifically address some indigenous issues at a closed meeting held in Flagstaff, Arizona. The Forgotten People submits these comments to the Working Group at its offices with the High Commissioner in Geneva and requests that the same be considered with 8

making the country report on the visit to the United States. The Forgotten People joins with other non-governmental organizations of Navajos in Navajo Nation civil society, who are largely locked out of effective public discourse in Navajo Nation political institutions, to ask that the United Nations remind the Navajo Nation, as a state under the Guiding Principles on Business and Human Rights (2011), the Peabody Coal Company (as a private corporation bound by them), the Navajo-Hopi Land Commission (as a governmental body or enterprise owned or controlled by the State, and also the Twin Arrows Casino operation), and relevant judicial and other remedial bodies of the Navajo Nation bound by the remedial provisions of the Standards that there are international human rights standards that apply. Additionally, given the role of special bodies of the United Nations, such as the Working Group, to elaborate and fine-tune international standards based on empirical evidence gathered in country visits, we ask that the Working Group give special attention to elaborating special standards for indigenous peoples to address and remediate the situations and conditions set out in this submission. ***