By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
Lena Goldtooth Canyon sits on a sturdy dinette chair, rubbing worn thumbs together and watching her feet tap on the linoleum kitchen floor. Below her long skirt, she is wearing white socks and black sneakers, laced but not tied. Canyon is 76 years old, a heavyset Navajo woman whose life has largely consisted of herding sheep and raising children. By reputation she does not gladly suffer strangers.
Reed Tso stands hat in hand before her, as he has done many times before, wearing the passive look of a supplicant and asking questions in Navajo on behalf of another stranger. Tso is 40. Like Canyon, he grew up on the northern Arizona reservation of the Navajo Nation.
As she answers, Canyon begins to gesture with small snatches at the air. She is talking about land, to her and many Navajos the most precious of things. Specifically, she speaks of the land south of her current home, the place where she grew up and would like to return before she dies.
"We had homes and livestock out there and had a good life," she tells Tso in Navajo, as he interprets. "My father was one of the first people that went into that area. There is a place called Pull the Water Out, and he developed that well and used it. He would pull the water out for uses such as livestock and other needs."
For more than 20 years, Canyon, her brothers, their children and grandchildren have not been able to live on their family land, she says. Although they still graze livestock on it, they have been forbidden to fix up old houses and hogans as they fell into disrepair, or from building new ones to replace them.
Instead, they live in a collection of trailers and square homes several miles north of the family land. Canyon's house is cinder block, painted pale blue, with a a crooked stovepipe jutting from its roof.
"We would wish to go back," she says. "Our children wish to go back."
Time, and a federal judge, should soon tell whether Canyon will get her wish. Like thousands on the western portion of the country's largest Indian reservation, Canyon's family has spent the last quarter-century suspended in uncertainty as Navajo and Hopi leaders argued over which tribe is entitled to use different parts of the reservation.
Eighteen years after it was filed, a lawsuit brought by the Hopis against the Navajos is on the verge of being decided. U.S. District Judge Earl Carroll may hand down his decision at any time, designating some amount of land to be used exclusively by the Hopis and giving the Navajos the rest.
The court fight has even outlived the Hopi tribal chairman who filed the original suit. In an interview two weeks before he was killed in an August 7 car crash, Abbott Sekaquaptewa expressed frustration over the Navajos' "propaganda war." "They say I'm just a bitter man," he said. "I can't judge myself, but if I'm a bitter man, I have a damn good reason."
When the suit began, more than seven million acres of land was in dispute. Over time the contested area has been whittled down to about 100,000 acres in the area of Moenkopi and Tuba City, including where Canyon lives.
Members of both tribes hope Carroll's ruling will free them to go on about their ways. But the enduring legal struggle, they say, has done more than just cost the tribes millions of dollars. It has taken years from their lives, changed their ways and forever marked their families.
Navajos say they have seen their families undermined and their way of life distorted. They blame the Hopis, saying their greedy lust for Navajo land has brought about their lingering hardship.
Vastly outnumbered by their neighbors, the Hopis say they are the victims of the land dispute. They view the Navajos as nomadic latecomers who are using their larger numbers to push them out of their sacred grounds.
The roots of the tribes' disagreement date back hundreds of years to when the Navajo first began arriving in the Hopi area, and two distinctly different cultures began sharing the same swath of land. In modern times, courts have become the battleground as the two tribes attempt to fashion an elusive peace.
The judge's approaching ruling should go far toward establishing which tribe, in the eyes of the law, is allowed to use which land. But some doubt the two tribes will ever stop their turf battles.
"What you have is two tribes who have been locked in this dispute so long they don't know any other way," says Lee Phillips, a Flagstaff attorney with many Navajo clients. "[The land fight] has become almost an institution that has drained blood and money out of those tribes and has prevented the tribes from providing for the day-to-day needs of their people."
@body:Land ownership is not the goal of either the Hopis or the Navajos in their long-running dispute. The issue is use--whose sheep and cattle can graze where, who is free to use sacred sites for religious ceremonies and where new houses can be built as children marry and have families of their own.
For its millions of acres of vastness and remarkable contrast, the reservation is actually the scene of thousands of minute territorial struggles.
"The land is crowded in a way that you and I do not understand," says Terry Fenzl, an attorney with Brown & Bain who has represented the Navajo tribe on this issue for 18 years.
Limits on the number of sheep and cattle that can be grazed on the land have been frozen since 1940, and animals often stray into a neighbor's grazing area. There are a limited number of wells and other water sources, and disagreements over rights to the sometimes-precious commodity abound. There are also arguments over fences, roadways and utilities.
"The Navajos got a lot of land, but most of it is pretty goddamn poor land," says Phillips. "You have constant conflict between the Navajos and the Hopis."
The Navajos, sheepherders by history, are used to roaming around their territory. Typically, Navajo families would have several camps dotted across the land where their animals grazed, and would move among them with the seasons in search of fresh pastures, firewood or fresh water. The landscape is a canvas, and their wanderings--the sites where children are born or people die--the life sketch they leave upon it.
Land use to the Hopis is different. Farmers by nature, they gathered over time into permanent villages near their fields. To them the land is a masterpiece of the spirits that they have been entrusted to steward. They would travel out into it, gather young eagles for ceremonies, or find herbs and medicines, but otherwise leave it unruffled.
For generations both used the same lands, relying primarily on neighborly agreements and a general understanding that each tribe was entitled to the land it had traditionally used. There were always conflicts, and sometimes bloodshed, over the years as the tribes tried to co-exist. The Hopis, in particular, felt the Navajos were elbowing them out.
Now, growth and history have forced both tribes to confront the necessity of actually dividing the land between them. Their outer limits are circumscribed by the boundaries set by the federal government years ago, and they are fighting over what's left.
Originally, there were essentially two reservations. The first, about 2.5 million acres, was given to the Hopis in 1882 by presidential order. Surrounding the Hopi reservation was more than ten million more acres given to the Navajos piecemeal during the late 1800s and early 1900s.
But the federal government's lines could not account for the way the land was actually being used, and Congress was vague about specifying which tribe was entitled to what acreage. Thousands of Navajos lived on the Hopi reservation, hundreds of Hopis on the Navajo reservation, and there was much crossing back and forth.
Conflict over the 1882 Hopi reservation eventually led Congress, in 1974, to order that the land be partitioned between the two tribes. As a result, almost 10,000 Navajos were thrown off Hopi land in a highly publicized, and much criticized, relocation effort that brought violence and bitterness.
The land remaining to be divided by Carroll's order is the Navajo reservation. A 1934 law passed by Congress gave the land to the Navajos "and such other Indians as may already be located thereon."
The Hopis have successfully argued that they are the "such other Indians" referred to in the act, and want part of the Navajo reservation designated as theirs.
The process of deciding which land the Hopis should get has consumed years. It has traveled to the U.S. Supreme Court and back, as the federal judiciary tried to settle a distinctly legislative problem. And it has made an already harsh life that much harder for those awaiting Judge Carroll's decision.
@body:Bennie Begay is a 56-year-old Navajo sheepherder. Like many Navajos, he does not really live in one place. He has a home near Tuba City, and a camp high atop Coal Mine Mesa, sweeping pastureland that seems to touch the sky.
His father and grandfather lived out on the rangeland, moving from camp to camp, but Begay cannot do that. Like Lena Goldtooth Canyon, Begay is caught in what is most often referred to as the Bennett Freeze.
As the dispute between Hopis and Navajos caught fire in the 1960s, then-Commissioner of Indian Affairs Robert Bennett issued his namesake order. Until the courts could determine who got what, Bennett decided, the land should stay as it was.
So, in 1966, eight years before the Hopis formally filed suit against the Navajos, Bennett froze development of about 1.5 million acres of the most disputed land on the western part of the Navajo reservation. No member of either tribe could build on or improve their land without the permission of both tribes.
Effectively, Bennett's order, which was later endorsed by Congress, locked the western reservation into a time warp. The Hopis, hoping that they would ultimately win much of the land, did not want the Navajos building on it in the meantime.
But as roamers, the Navajos' traditional way of living and keeping their families together depends on the ability to build, expand or repair their campsites as they move from place to place. They claim the Hopis have used the freeze to block virtually any improvements on the land, even things as simple as repairing a window or patching a roof. The freeze, they say, has had consequences far beyond what federal officials might have imagined.
"When you go out and interview, people cry," says Scott Russell, an anthropologist who has spent ten years researching Navajo life for the lawsuit. "People talk about the freeze. How they want their lives to improve, how they want their children's lives to improve, how they want their children to be educated, and the freeze has basically said 'no' for a generation. . .[and] they cry."
Standing at his camp, Begay explains what the quarter-century freeze--almost half his lifetime--has done. His camp consists of three hogans, two stucco homes, various corrals and two fiber-glass outhouses.
Although high-voltage power lines crisscross the reservation, Begay has not been allowed to run power to his house. Thousands of Navajo families in the freeze area cannot get electricity, running water or telephones.
But more important, Begay says, he is not allowed to add to his camp. As sons and daughters marry, they cannot build new homes next to their families as Navajos traditionally do.
The freeze, Begay says, has produced a wholesale disruption in his family's way, driving the young people into Tuba City or off the reservation to live.
Tuba City, in fact, is a large town now because of the freeze. Although it was long ago established as a Navajo village, it now holds between 8,000 and 10,000 people, mostly Navajo. The town and the area immediately around it are exempt from the freeze, and so have become the repository for many Navajos who cannot remain on their land any longer.
For the generation that has grown up since the freeze was set, Begay says, the spiritual and family links they should have with their homeland are severed. Were it not for the freeze, he says, he could run utilities to his camp, make it bigger as his family grew and live full-time out on the rangeland like his father and grandfather did.
"I've been thinking about this for a long time," says Begay, his words whipped by a stiff, high-mesa wind. "This is a great problem and it causes hardship on us. Just to give you an example, I have seven children and then I have a wife and then I have nephews and nieces. They all don't have homes. When we get together here, this is a small house and we don't all fit in there and there's sometimes no place for them to sleep.
"The younger generation, they say, 'Well, I really have no future and I have no hope.' So they turn to drinking and then they get away from here. They leave the area. They leave the reservation.
"If they had a decent home here and were able to return to what they knew was their own home, then they would be here. The way it is now, they don't have a home of their own, so it's really like they have no place to go. They have nowhere to live, and life has become unmeaningful for them."
Begay's words are echoed across the freeze area. Lena Goldtooth Canyon says she cannot live on the land where she grew up because the houses and hogans have all fallen down and the Hopis will not give her permission to rebuild them.
"My heart aches and I grieve," she says, her hands still in her lap for the moment. "[The Hopis] are the ones that harass us. Whenever we want to build something new, they come out with a piece of paper and stick it on the structure saying we can't do that."
Doc Scott, 71 years old, has herded sheep on the southwest side of Middle Mesa all of his life. His parents and other relatives are buried on the land, where he now lives in a single hogan with his wife and mother-in-law.
The Hopis tried to tell Scott, too, that he could not build the hogan, but he chose to ignore them. When they stuck a paper on his livestock corral, telling him to tear it down, he says, "I just pulled it off and gave it to the wind, and the wind took care of it.
"I can't build a house because of the freeze," he says. "I just put an outhouse up the other day, and they haven't put a ticket on it yet."
Faye Begody Tso, interpreter Reed's 58-year-old mother, offers a similar lament. On the grazing land where Reed grew up, the family still runs sheep and has a camp. But the house is a dirt-floored skeleton of old logs and cardboard. Tires hold plastic down for a roof. Her family has a house in Tuba City because it cannot live at the camp full-time, she says.
This week she is preparing the camp for a five-day religious ceremony--a Wind Way--to cure the deep chest cold she has been unable to shake. "We've been living out here a long time and the Hopi, they never lived out here," she says. "They don't like us. They want to get our land. It was like that since I know."
Some people have built in spite of the freeze, defying the Hopis to come tear down their structures, Navajos say. In many cases, the Hopis have obliged, and at one point during the 1980s the Hopi tribe even used helicopters to scout the vast land looking for freeze violators.
But the Hopis refuse to be cast as villains in the affair. They maintain that they were merely looking after what was theirs to begin with.
@body:Abbott Sekaquaptewa offered evidence in an interview shortly before he died that hard feelings are not limited to the Navajo side of the fight.
The 62-year-old former tribal chairman was a self-confessed Hopi purist. He believed that the Navajos have no business being on much of the land they inhabit. The Hopis were there first, he said, and the Navajos have elbowed them out through force of numbers.
Although he knew it would not happen--because of "politics," he said--he believed the Navajos should be evicted from the disputed land so the Hopis can care for it as their spirits intended. But the relocation of Navajos after Congress divided the 1882 reservation created so much bad publicity and resentment, he said, that the Hopis stand little chance of gaining much of their land back.
"The Navajos have been conducting a propaganda campaign for 20 years about the supposed damage they would suffer if they had to move off the land," Sekaquaptewa said. "The Navajos like to say there is no word in their language for 'relocation.' I agree with that. There is no word for relocation because it's been a way of life. They've always been nomadic. For a Navajo to say that it is harmful to relocate a Navajo is the same as being afraid of throwing a fish into the water for fear that it will drown."
When the lawsuit was originally filed by his administration, Sekaquaptewa said, the Hopis wanted up to half of the Navajo reservation. But he believed the 1934 law consolidating the reservation has worked against the Hopis.
The law's specific language said the reservation was intended for the Navajos "and such other Indians as may already be located thereon."
The lawsuit, therefore, was essentially an argument over who lived where in 1934. The Hopis, as they are prone to do, actually lived in fairly limited areas, Sekaquaptewa said, although they used much vaster areas.
"Hopis go out into the traditional areas to gather eagles, wild herb plants, medicines and natural building materials, wood and stone," he said. "From the faithful and sincere performance of our rituals, we gain the benefits of rainfall, snowfall, the warmth of the sun and bountiful crops. When our Earth Mother is taken away, it takes away the foundation of Hopi society and severs the umbilical cord of Hopi society to the Earth Mother."
Judge Carroll has made it clear that he will not award either tribe land just because it contains sacred sites that are used only occasionally. Access to such sites, Carroll has noted, is protected by federal law.
Had Carroll recognized the Hopi way of using land--occasional treks to religious sites rather than full-time occupancy--as opposed to actually residing on it, the tribe would have been entitled to much greater areas than it will likely receive, Sekaquaptewa said.
"I don't think the judge's decision is very fair at all to the Hopi people," he said. "Anybody with any knowledge of any history knows that all the land in question are the ancestral homelands of the Hopi clans."
Sekaquaptewa agreed that Navajos have suffered hardship from the freeze, although not as much as his tribe. "Hopis have not only been prevented from building improvements, but prevented from using the area as they did before the Navajos arrived," he said. "We have a lot longer history of denial than the Navajos."
@body:For all its sweep--years of costly litigation to determine the futures of thousands of people--the ongoing lawsuit has been a battle of minutiae.
Because of the terms of the 1934 act, each tribe was forced to reconstruct how the land was being used 40 years before the lawsuit was filed. The task consumed years, as experts from both sides combed through aging federal grazing records and correspondence, and then tracked down and interviewed hundreds of elderly Indians who were old enough in 1934 to remember who lived where.
Scott Russell, the anthropologist hired to do most of the work for the Navajo attorneys, has devoted ten years to answering the question of who lived where on June 14, 1934, the date on which the operative Congressional Act took effect.
Fortunately, Russell says, history had conspired to provide some starting points. Because Hoover Dam was under construction, the Soil Conservation Service was studying grazing during that time for fear overgrazing would cause erosion that would fill the new reservoir with silt.
The government had ordered a dramatic reduction in animal grazing and was monitoring herd sizes and locations during the 1930s, Russell says. Aerial photographs were taken of much of the area, and routine census data were also collected.
For two weeks a month, two and a half years running, Russell says he tracked down older Navajos. He would ask them if they remembered where exactly they were living during 1934. He would help them peg the year in their minds, reminding them it was the year the federal government came out and killed their goats to cut down herd sizes.
"Basically, I started by finding elderly people and taking down their stories, about who they were, who they were related to and where did they live, where did they have their hogans in 1934," Russell says.
Over time Russell was able to draw up a map, showered with red dots, that traced the lives and seasonal movements of hundreds of Navajo families. "I tried not to believe anyone who was less than 10 at the time and I preferred people that were 15 to 20 years old or older," he says.
Eventually, many of the tribe's older members--including Lena Goldtooth Canyon, Bennie Begay and Faye Begody Tso--found themselves traveling to Carroll's low-ceilinged Phoenix courtroom to testify in the case.
During much of the work, Reed Tso accompanied Russell, or other experts or attorneys. The interpreter traveled virtually all the Navajo reservation interviewing tribe members.
For Tso the task was more than academic. In his early 20s, Tso had moved to California, gotten a college degree and then taken a job as a draftsman. He was not intending to move his wife and three children back to the reservation.
But in the late 1970s, he visited his grandfather and heard of the land lawsuit. His grandfather told him he must move back to the reservation and help his tribe keep its land. Tso did, beginning a 12-year personal odyssey that has brought him ever closer to the land where he grew up.
At first Tso worked for the Navajo tribe, compiling an as-yet-unfinished encyclopedia of the Navajos. Soon he was volunteering to interpret for the white lawyers representing his tribe, and eventually it became his job.
Standing on a ridge overlooking the Moenkopi Valley, Tso points below to the tumbled logs and metal that remain of a camp where his family used to live when he was a boy.
"There used to be a ramada and a hogan there, and a large barn," he says. "When something like this goes down, the Hopis say you can't rebuild it."
Over the years, Tso has decided he, too, would like to live again on the land where he rode horseback as a boy helping tend the family herds. All around him he can point to the landmarks of his youth and his soul--the Tall Cliffs, White Horse Pulling a Wagon Mesa, a small knobby hill on the horizon called Bear's Ear.
As painful as the drawn-out process has been, Tso says, the land itself speaks to why the fight has been necessary. Both tribes hold the land dear in different ways, and neither will part with it lightly.
@body:For the Navajos, the lawsuit is all but won. Judge Carroll has indicated in preliminary rulings that the Hopis will get, at most, about 100,000 acres of Navajo reservation land, and probably less than that.
In July, Carroll held one last phase of the trial, allowing Hopi and Navajo attorneys to argue where the specific lines should be drawn. The Hopis appear likely to receive as theirs exclusively the village of Moenkopi, where they have historically lived, and the well-watered surrounding fields around Moenkopi Wash.
The judge's final decision will show how other still-disputed land--areas that apparently were being heavily used by both tribes in 1934--will be split up.
Both sides expect a fence will be built once the line is drawn. It is still possible that 12 or 15 Navajo families will end up on Hopi land and be forced to move, but the massive relocations that were conducted on the 1882 reservation are not going to be repeated.
Sekaquaptewa feared that the outcome will spell further confinement of the remaining Hopis. Being unable to range freely over the land as they have been accustomed, he said, "will probably eventually destroy the fabric of Hopi society."
Carroll, in comments made from the bench at the close of July's hearing, indicated that he is sensitive to the Hopi position as a "minority tribe in this area."
"The majority in any society. . .have the ability to dominate minorities and restrict their privileges," Carroll said. But were it not for the 1934 law, he said, the Hopis might have no ability to gain any land at all and might have even lost the village of Moenkopi.
The Navajos have not contested the likely award of Moenkopi and surrounding farms to the Hopis. They say they primarily want the Bennett Freeze's grip on their lives broken. The toll on their families and lives has already been too great, they say. "It will finally remove the black cloud off the lives of all these people," says Duane Beyal, a spokesman for the Navajo tribe. "[They will] finally be able to breathe freely like the rest of us do."
The Hopis will likely appeal Carroll's ruling, says James Scarboro, one of the Denver attorneys representing the tribe. That means it may be two more years after the judge rules before the reservation lines are firmly in place. The Navajos have asked Carroll to lift all or part of the Bennett Freeze while the case is appealed.
Appeals could push the lawsuit past the 20-year mark before its final resolution, raising the question of how any disagreement--even one as deep-rooted and complex as reservation rights--could drag on for so long and at such human and financial cost.
Although no one knows the exact amount, the legal fight has cost millions of dollars, a large chunk of which has been underwritten by taxpayers. In 1985 Congress agreed to give each tribe $160,000 a year to wage the legal fight, in addition to other money the tribes had already received.
Navajo spokesman Beyal estimates that his tribe is spending $1 million a year on the suit, and claims the Hopis are spending about the same. Hopi attorney Scarboro won't say how much his side has spent, and Hopi tribal leaders didn't want to talk about it.
Tribal members and observers wonder why the dispute could not have been resolved more quickly. Couldn't the tribes cut a deal? If not, why didn't Congress, the body whose ambiguous legislation spawned the dispute, step in and correct it?
The Navajos point out that, in 1986, they did offer to settle the lawsuit, giving the Hopis more land than it appears Carroll will, and throwing in some royalties from coal mining to boot.
"In retrospect, our offer would have given them more than twice as much acreage as the court has determined they might be entitled to," says Beyal. "We gave them a very lucrative offer."
The Hopis, Beyal says, replied that their chances would be better in court and turned the offer down. Hopi leaders did not want to talk about the lawsuit further.
In Congress, too, attempts to resolve the dispute floundered over the years. "It seems like every other year there was a new piece of legislation," says one longtime observer of the dispute.
A large part of Congress' inability to act was the continuing controversy surrounding its 1974 decision to partition the Hopi reservation. That legislation led to thousands of relocations--most moving Navajos off of Hopi land--and generated waves of bad publicity. To this day, the relocation program has not been finished, as remaining Navajo families fight to stay on lands in the 1882 reservation area.
When questions about the 1934 Navajo land arose, lawmakers took an all-or-nothing approach, says Dan Lewis, a minority staff member of the Senate Select Committee on Indian Affairs. Legislators wanted a bill that also addressed the 1882 executive order.
"The thought was if they were going to settle it, they were going to settle it in a comprehensive way," he says. But given the myriad sensitive issues involved in the two cases, no legislative agreement was ever reached.
Time and time again, legislators would insist that the tribes agree on boundaries, which Congress could then enact, says the observer, who wanted his name kept out of the ongoing battle. Because the tribes could not agree, he says, Congress was unwilling to designate boundary lines of its own.
Some of those most affected by the dispute blame lawmakers for its protracted life. Doc Scott, the Navajo from Middle Mesa, says he believes Congress and the federal government simply ducked their responsibilities and set the tribes against each other.
"It's not the Hopi. It's not the Navajo. It's somebody else holding our heads and knocking them together," he says.
By default the time-consuming and laborious legal process was the only way left to resolve the question.
"First and foremost, the government has been very, very successful in pitting the tribes against each other," says attorney Lee Phillips. "It's sort of paralyzed the tribes."
Left behind is a legacy of contention both tribes may be hard-pressed to erase.
Younger members of each tribe have lived their whole lives viewing their neighbors as enemies in a land dispute. "Clearly there is more animosity among the younger ones than the older ones," says Phillips, whose work brings him in contact with both tribes. "Most of the younger people have never had [any] kind of positive relationship with the other side because the past 20 years has been building a Berlin Wall out there."
Northeast of Tuba City there is a small reservoir formed by a low stone dam. Its fate after the lawsuit remains unclear, although it is used primarily by the Hopis to water fields down below.
Downstream from the dam is an area of several hundred acres where tall cottonwood trees have grown, apparently nurtured by the water seeping from the reservoir. The shaded area with rutted dirt roads has been used as a park for years by both tribes. At July's hearing, Carroll instructed attorneys for both sides to give him their specific recommendations on what should be done with this unique parcel of land. Then, with a trace of a smile, he proffered his own suggestion. "What about a park?" he queried. "The Carroll Memorial Park." Given the case's legacy, he chided, "everyone could go there and have fights."
TORCHING THE TWANG K.D. LANG WAS ALMOST... v8-12-92