Longform

A People Betrayed

Page 3 of 7

The stage was set for Boyden to execute the Black Mesa coal lease with Peabody Western Coal Company.

The Hopi Tribal Council barely mustered a quorum--only 11 of 17 councilmen were present--when it voted to approve a lease with a subsidiary of Peabody on May 16, 1966. Of the 11 who voted, only six had been certified by the Kikmongwi as the Hopi Constitution required.

The lease was negotiated on the Hopi's behalf by John Boyden.
"Nothing on record indicates that John Boyden ever provided the Hopi Tribal Council with any substantial analysis of the Peabody lease," Charles Wilkinson states in a paper published last year in the Brigham Young University Law Review titled: "Home Dance, The Hopi, and Black Mesa Coal: Conquest and Endurance in the American Southwest."

Wilkinson states that the tribal minutes show little discussion of the lease, no information on whether the tribe would get a good return, and no revelation that Boyden had ties to Peabody.

The lease was a terrible deal for the Hopi.
The tribe only received 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 10 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. (An acre-foot is the amount of water that would cover an acre of land to a depth of one foot; it is also estimated to be the amount of water used by a family of four in a year.) The water is used to transport coal through a 273-mile underground slurry line from the Black Mesa Mine to Southern California Edison's Mohave Generating Station near Laughlin, Nevada.

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.

A July 1971 Audubon Magazine article by historian Alvin M. Josephy stated: "So far this original contract has never been shown or read or explained fully to the Hopi Leaders and the people."

Former Interior secretary 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 in a recent phone interview from Santa Fe, New Mexico. "The word that came to me was that they [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, 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's law school in Boulder.

Dressed in a blue denim shirt and casual slacks, Wilkinson delves quickly into a topic that has been his life's work--the West. Wilkinson is one of the nation's most prominent legal experts on public lands and Indian law. He 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 Oregan 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."

His 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.

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John Dougherty
Contact: John Dougherty