Chapter12 “Peace” for Indigenous Peoples Land-Based Visions of Reconciliation

Environmental Justice as Earth Justice

Environmental harm depends upon violation of specific standards for air and water pollution established under federal law. Most of the years that the power plants and coal mines in the Four Corners region were operating at maximum capacity saw negligible federal regulation. Even after the closure of specific power plants or coal mines, the costs of “restoring” land to an adequate level are prohibitive. Progress could take several decades. Similarly, the groundwater has been badly depleted, and in the context of climate change, desertification of the land is already underway.

From the perspective of traditional Navajo and Hopi customary law, the Earth is alive and shares a fundamental relationship with the people, who must care for the land and water over each generation. In that sense, the Earth is envisioned as a living being with a consciousness and need to purify itself within the cycles of the natural world. Water is like lifeblood, and the confluence of rivers often has a sacred meaning and significance. Within this perspective, it is unwise to dam a river to secure hydroelectric power, and the destruction that dams cause is often considered a desecration.

It is important to note that the basic perspective about the identity and importance of the Earth and water transcends Indigenous cultures.6 Navajo language and culture is distinctive from Hopi language and culture, and yet the land ethics that arise from each Indigenous tradition describe the Earth’s sacred qualities and people’s relationships with one another and the Earth. The Navajo Nation’s fundamental law describes a Universe bounded by Four Sacred Mountains, each associated with a direction, colours, medicinal plants, and elements. Human beings are allowed to use certain elements (such as coal or wood) to heat fires, and they rely on the land and water to survive. Yet, under the Navajo Nation’s customary law, it is considered inappropriate and dangerous to harvest certain elements (such as uranium) or to engage in wasteful uses of the land and resources. This is the basis of the Navajo Nation’s current struggle to block a Phoenix-based private corporation from building four dams on and above a tributary to the Little Colorado River, which would pump groundwater to fill the hydro-power project’s reservoirs.7 The goal of the Big Canyon Pumped Hydro Storage Project is to store “surplus electricity” and support electric-grid reliability, ultimately allowing storage of 3,600 megawatts of electricity. This is important for industrial users of electricity in the Southwest, given the recent closure of the Navajo Generating Station, which was the West’s largest power plant before its closure in 2019. The rivers in the area will be used instrumentally to service the energy needs of Western cities, just as the lands were used for coal mining.

The Little Colorado River merges with the Colorado River at the mouth of the Grand Canyon, and this confluence site is widely regarded as sacred by all of the tribal Nations that are culturally associated with the region, including the Navajo Nation, the Hopi Tribe, the Havasupai Tribe, the Hualapai Tribe, and the Zuni Pueblo. The act of pumping pristine groundwater to service the Hydro project’s reservoir is a further desecration and one that would destroy the precious springs that nurture the Hopi farmers in their centuries-long cultural practices. Not surprisingly, the Navajo Nation and Hopi tribal governments and their attorneys are actively resisting the dam project, even though the Federal Energy Regulatory Commission has accepted the corporation’s permit application.

Tribal governments’ unity on the dam issue aligns with the cultural traditions of both tribal Nations; it is also notable because the effect of federal policy has been to create opposition and antagonism between them. This is a further harm that must be considered and, ultimately, reconciled.

The Navajo–Hopi Land Dispute

The Navajo Nation entered a treaty with the US in 1868 that demarcated a certain area of traditional land as their reservation. The Navajo people have a tradition of owning livestock, including sheep, goats, and horses, and many families maintained winter camps and summer camps. As the Navajo Nation’s population expanded, the US annexed additional parcels of land into the reservation by executive order. Today, the Navajo Reservation extends across four states and comprises sixteen million acres. Under US federal law, the Navajo Nation is a sovereign government with the right to govern its lands and members. Under the Navajo Nation’s customary law, the Diné people are governed by the set of instructions given by the Holy People at their origin. This complex set of cultural instructions orients the people within their Universe, as do the clans that socially organize the Navajo people.

The Hopi Tribe comprises several autonomous villages, including Oraibi, which is widely considered to be the oldest continuously inhabited site in North America and likely dates back 1,100 years or more. The Hopi villages are ancient and situated in place. Families occupy their sandstone homes generation after generation. Hopi people also have a clan system of social organization and have always farmed fields adjacent to their villages using a traditional dry farming technique, which preserves moisture in the soil and allows corn, squash, and melons to grow despite the extremely arid conditions and without the use of irrigation.

The Hopi have never moved from their villages and do not have a treaty with the US because they remained at peace and chose to negotiate and co-operate with the federal government. The Hopi Tribe is also recognized as a separate sovereign government, and the Hopi Reservation was created by executive order in 1882 to encompass the boundaries of the Hopi Tribe’s traditional villages and fields. Owing to federal actions in the late nineteenth century and early twentieth century, the Hopi Reservation became completely encompassed within the Navajo Reservation. The two Indigenous Nations had always coexisted within this territory; they had different cultural life ways and didn’t compete for land or resources. For generations, the two tribes traded with each other and intermarried, leading to a rich set of social relationships.

With the accelerating energy development in the mid-twentieth century, however, came a need to commodify the sub-surface mineral resources the tribes shared. This led to a bitterly contested land claim between the Navajo Nation and the Hopi Tribe that lasted from 1959 to 2005.8 Within the politics of energy development, each tribal Nation became an Other with respect to the land and each other. The first phase of litigation resulted in a judicial partition of the territory into “Navajo Partition Land” and “Hopi Partition Land.” Over 10,000 Navajo people were on the “wrong” side of the partition line and were relocated from their homes in the largest relocation of individual US citizens in American history. Many Navajo families were left landless due to the failure of the governmental bureaucracy that managed the resettlement process.9

The litigation over the western portion of the reservation, an area jointly used by the two tribes, persisted for many more years. In 2005, the final phase of the land claim was resolved by a judicial decision, leading to a Congressional decree that settled the claim. In 2009, after forty-three years, the federal government lifted the administrative freeze on development in the contested area of 1.5 million acres within the Navajo Reservation. The Bennett Freeze had gone into effect in 1966 to preserve the status quo between the two tribes, pending adjudication of their respective rights. In a vast landscape that is home to thousands of people, the administrative freeze prevented house construction and even routine home repairs, such as roof replacement. It also prevented infrastructure development, foreclosing the construction of gas lines and water lines and road construction. Ironically, in an area that supports the energy needs of major Western cities, most Navajo residents lack running water and electricity. The dirt roads are too rough for water trucks and are often impassable when the rain turns dust into mud. Most residents have to drive an hour or more each week to haul water back to their homes. The water is scarce and must be reused many times by intergenerational families who live in substandard homes that lack working kitchens or bathrooms.

Current Snapshot: The Impact of COVID-19

This entire history and the significant level of underdevelopment on the Navajo Nation was largely unknown to most Americans until 2020, when the COVID-19 pandemic hit. Even the poorest communities in other parts of the country have access to running water and electricity, inspiring medical professionals to insist upon handwashing and basic sanitation practices such as social distancing and avoiding crowded places. In June 2020, the national news media reported that the Navajo Nation was suffering the highest incidence of coronavirus cases in the country, surpassing even New York and New Jersey, which were in the midst of catastrophic outbreaks of the pandemic. The virus spread rapidly through the Navajo communities, where multigenerational families share a single home and where most are without running water to wash their hands or electricity for warmth and sanitation. Residents in these rural communities lack ready access to fresh food, water, or Personal Protective Equipment; many had to travel two or even three hours to the nearest grocery store. Many residents did not have vehicles and relied on rides from neighbours—and strangers—to obtain groceries or medical supplies. There are very few law enforcement officers or emergency responders in the area, and many residents have underlying health conditions, such as heart and lung disease and diabetes, that made them vulnerable. Not surprisingly, the virus spread rapidly throughout the communities, causing devastating loss of life in these communities. The Navajo people cherish their Elders; children are taught to take care of their grandparents, who are their teachers and the custodians of ancient and unwritten cultural knowledge. The loss of many Elders and working members of each household has had devastating cultural and social consequences for families and for the close-knit communities on the Navajo Nation.

In the midst of crisis, however, there is also an opportunity to contemplate what is needed to restore these Indigenous communities to health and to the basic set of social goods that most Americans take for granted.

Reconciliation and International Human Rights Law

In July 2019, the Expert Mechanism on the Rights of Indigenous Peoples presented a report on the efforts of nation-states to implement the various provisions of the Declaration on the Rights of Indigenous Peoples.11 The report emphasized the centrality of three themes: recognition, reparation, and reconciliation. Recognition of the rights and status of Indigenous peoples is ongoing among nation-states. In the US, the federal government recognizes the sovereign status and land rights of federally recognized tribal governments. The key to respectful relationships is to accord mutuality and respect, for example, through consultation prior to taking actions, such as the construction of dams that would jeopardize tribal rights. The process of reparations is linked to efforts to accord compensatory justice for past wrongs. The US is generally quite reluctant to accord material compensation for what it views as moral wrongs. Instead, Congress must pass legislation to selectively redress instances of proven injustice, such as providing compensation for Navajo uranium miners (or their surviving spouses) who became sick or died from radioactive contamination.

The process of reconciliation is also directed toward reparative justice, but it focuses on restoring broken relationships that have arisen from centuries of injustice in the wake of colonialism. This is the most abstract part of the human rights process, but it is a theme that must be engaged if we hope to repair the wounds that divide us from ourselves, from one another, and from the land itself.

The Declaration on the Rights of Indigenous Peoples is premised on the need for intercultural justice. The document is the result of over twenty-five years of negotiation between state and Indigenous representatives and includes an Indigenous perspective for recognizing distinctive rights. For example, it recognizes the spiritual relationship between Indigenous peoples and their territories, which has existed for generations and sustains the people’s place-based identity. Spiritual rights are different from religious rights. This concept is unique to Indigenous peoples among the various human rights documents and is closely linked to many Indigenous traditions that describe the people as “stewards” or “custodians”—rather than “owners”—of the land.

The job of a steward is to tend to the land: its forests, watersheds, mountains, and all component parts that sustain the health of the natural system, including the fish and wildlife. Stewardship is often associated with sustainability and with subsistence life ways, such as those of Indigenous peoples in Alaska who look after forests and Caribou herds but do not consider themselves to be owners of the Caribou herds or forests. In comparison, Western property law protects the right of an owner to exploit natural “resources” for their maximum economic value, which is the calculus of a market economy. The disparate values create dichotomies between and among Indigenous communities and with respect to their lands. In the Arctic, this dynamic has pitted Alaska Native corporations seeking to drill oil against Indigenous villages seeking to protect Caribou herds and salmon runs from environmental catastrophe.12 In the American Southwest, this dynamic has fuelled the development of coal, oil, gas, and uranium extraction on tribal lands, resulting in the massive contamination and underdevelopment that now threatens the well-being of the associated tribal communities. Today, the oppositional dynamic is affecting the precious and scarce water resources in the region, as the litigation between the Navajo Nation and the Hopi Tribe commences to quantify their respective water rights to the Little Colorado River.13

The process of reconciliation and achieving “peace” with the Other must not be romanticized. The Navajo Nation and the Hopi Tribe are separate sovereigns with important legal rights to their respective lands and natural resources, including minerals and water. In that sense, they are owners of the land, mineral resources, and water, and, like all owners, may choose to exploit their “share” of the resource and sell or lease it to third parties. However, the oppositional dynamics of ownership create a precarious reality in a time of rapid climate change, where water is the most precious and valuable resource for the future. Traditional Navajo and Hopi community members know how to live with and sustain this fragile resource better than anyone else, and that is an invaluable source of guidance on the road ahead.

Reconciliation and Indigenous Law

For Indigenous peoples, traditional law is based on the distinctive values and cultural norms of the people. Cherokee Elder Tom Belt, who taught Cherokee philosophy for many years at Western Carolina University, gave a lecture that described the Cherokee term for “law” as related to “health and healing” rather than “justice.” According to Belt, “to live according to the Laws of the Creator is to live a life of health and balance.” In the Cherokee way, no one was an orphan. Every Elder and every child had a family and home, food to eat, and people to care for them.

The comparison of Cherokee law with the treatment of Native peoples under US law is dramatic. Native peoples within the US (and other countries) have been subjected to some of the most cruel and inhumane policies in human history, given the colonization of their lands and the physical and cultural genocide that they experienced. Today, the harms of colonization and historic trauma manifest at the material and spiritual levels. This is the reason for what Chief Justice Robert Yazzie of the Navajo Nation describes as the “loss of hope” in some Indigenous communities, manifested by high suicide rates, substance abuse, and the overwhelming poverty that results in various levels of physical, social, and psychological deprivation.14

Of course, the harms of colonization cannot be healed by the colonizer. What is needed is a process of healing that emerges from the actions and consciousness of Indigenous communities and has the capacity to heal the physical and spiritual harms that they experience today. This is the agency of healing that is commonly associated with Indigenous justice systems that were designed to heal conflict within the community through principles of restorative justice rather than Western adversarial systems of retributive justice. The art of peacemaking associated with Navajo Peacemaker courts, for example, is similar to other Indigenous peacemaking traditions, such as the practice of Ho’opono’pono among Native Hawaiians. Indigenous peacemaking generally allows each party to express his or her emotions: victims can describe the consequences of injury and the offending party can take responsibility for the action. In that way, the peacemaking process enables each party to release the harsh mental states of resentment and retribution that can compromise healing and create continued violence and suffering. Healing is imagined as a multi-stepped process. As spiritual wounds are addressed, physical consequences are ameliorated and redressed, leading to restored harmony and balance.

This restorative approach is also associated with various human transgressions in the material world—often unintended—that can compromise individual health and integrity. This is one of the reasons for various ceremonial practices of Indigenous peoples designed to facilitate the respectful “taking” of First Foods, such as deer or salmon, for human consumption. These animals are relatives that give their lives so that human beings can survive; they are revered for this sacrifice and allowing wanton destruction of deer or salmon purely for human greed would be considered a desecration. These ceremonial practices are associated with the physical and cultural survival of Indigenous peoples and serve as a baseline for the notion of respect and relationship that undergirds Indigenous land ethics.15

As Belt demonstrated, many Indigenous justice systems are founded upon the original laws given to the people at Creation, which are designed to promote life, harmony, and what today we might refer to as “sustainability.” The Western European nations promoted a false belief that Indigenous peoples lacked laws and therefore could not own property or claim the equivalent rights of a Christian, European nation. The European-derived Doctrine of Discovery became part of US law, justifying the appropriation of Indigenous lands and forcible destruction of Indigenous cultures. This history must be reconciled. The US has the duty of “moral repair,” in the words of philosopher Margaret Walker.16 Walker has written that many nations refuse to examine the negative aspects of their past, and they may fail to acknowledge government-sanctioned policies that perpetuated genocide or slavery or to assume accountability for current inequities those practices perpetuated. According to Walker, these groups have the “right to truth about the past,” and the government and its institutions have a duty to “remember” the past and to take corrective action to minimize the harms associated with historic policies and current inequities. Governments may insist that all citizens are now “equal” or that modern societies are “post-racial,” but this is not the experience of Indigenous peoples or other marginalized or minoritized groups.

Decolonization as “Indigenization”: Reconciliation with “People” and Place

The agency for healing must be rooted in Indigenous justice traditions. Today, decolonization requires “Indigenization,” centring the land and Indigenous people in policy discussions and grounding institutions in Indigenous values, even if this requires transforming the state’s institutions and practices. For example, if a state government commits to adaptation planning for climate change, or forest restoration or groundwater management, it must recognize that Indigenous land and water stewardship protocols should become part of state policy-making through co-operative state/tribal efforts. Karuk Tribal Chairman Russell Attebury recently made a statement to this effect after California Governor Gavin Newsom apologized for that state’s past genocidal policies and issued an executive order calling for healing and restoring relationships with the Indigenous Nations of California.17 Chairman Attebury described the need for the tribal and state governments to work together on environmental issues, combining “Indigenous traditional ecological knowledge with modern science,” including “thousands of years of managing the forests.”18 In a year when thousands of acres of forest land burned in California’s raging wildfires, the wisdom of Indigenous stewardship became all too clear. The knowledge of stewardship, however, resides with the First Nations of this land, not with the Western colonial nations or their descendants.

To bring the discussion back to the Southwest, the Navajo and Hopi people also maintain significant knowledge about the land, water, and environment that is pivotal to human survival. They are also on the front line of the climate crisis and the challenges associated with poverty, health vulnerability, and environmental contamination. Dr. Karletta Chief, a Navajo soil scientist and professor at the University of Arizona, oversees an environmental and health project designed to identify ways to decontaminate tribal lands and waters after decades of coal and uranium mining and restore sustainable community energy and agricultural practices on the Navajo Nation.19 In this historic partnership between a state educational institution and a tribal government, Navajo youth are trained to test and treat the water to remove heavy metals. They also assist in developing sustainable community farming practices to support the nutritional health of community members, as these remote communities are located in a “food desert.”

The Navajo Nation and Hopi tribal government will both be forced to make decisions about their mutual water resources as they go through the expensive and adversarial process of active water rights litigation. Under US law, water from common streams must be “adjudicated” into separable “water rights” that can be used by the respective “owners.” There are literally thousands of users of every stream and river in the state. Extractive industries are notoriously consumptive of water. The Black Mesa coal mine on the Navajo Nation is estimated to have extracted 1.3 billion gallons of water annually from the Navajo Aquifer before the mine closed, which amounts to a total of 45 billion gallons during Black Mesa’s life cycle.20 Peabody Coal Company also used the aquifer’s water at its Kayenta Mine, which closed in August 2019. The Navajo Aquifer is the sole source of drinking water in the region, and the water table has dropped precipitously, making it virtually impossible to access water through conventional wells, which normally access water at a depth of 400 to 500 feet. On the Navajo Nation, the groundwater is now 2,000 to 3,000 feet below the soil, and many springs and wells that once served the communities are completely dry.

The consequences of groundwater depletion are best understood by the tribal members who have lived and farmed these lands for generations. The Hopi people have farmed corn for multiple generations using dry farming techniques that do not require irrigation. For the Hopi people, corn is “central to their culture, religion, and way of life.”21 There are multiple practices associated with corn, such as selecting the best heirloom seeds and sustaining the complex ceremonies associated with rain and planting. There is also a need to bring everyone together with faith in the cycles that bring rain to nurture the corn. Dependence upon foreign practices, such as irrigation, could contravene traditions, and many traditional farmers resist this type of shift. That shift, however, is what non-Native economists believe is inevitable for Hopi farmers. A recent study prepared by economics faculty at Arizona State University and the University of North Carolina posited that climate change on the Colorado Plateau will necessarily trigger severe drought and the need for supplemental irrigation for Hopi farmers.22 This is an argument in favour of quantifying tribal water rights as soon as possible. As with all tribal water rights cases, “paper rights” must be implemented through a water project. Much of water’s economic value is tied to the level of engineering required to develop the water resource and ensure delivery to the tribal communities.

Of course, the impacts of climate change come on the heels of the vast exploitation of groundwater caused by the historic mining activities in the area. Former Hopi Tribal Chairman Vernon Masayesva now directs the Black Mesa Trust, a non-profit organized to protect tribal water, and he alleges that the mining activities caused a depletion of the Navajo Aquifer, which fed natural springs throughout the area.23 Masayesva says that, within the Hopi worldview, “all waters—rivers, groundwaters, glaciers . . . are interconnected, because Earth is like a human body and we survive with all the hundreds of bloodlines circulating through all of our body.”24 Masayesva says that the federal government and the coal company have an obligation to restore the lands and waters of the area that have been destroyed by mining. While the Hopi culture and religion are inseparably linked to water, Masayesva says that the “Western mind” sees “water as a commodity.”25 The two perspectives appear to be in tension, and yet the Hopi Tribe must adopt the latter to gain legal rights to use its water under US law.