Federal government may not have the right to lease Hopi assets


For Immediate Publication

Contact: Vernon Masayesva (928) 734-9255) or (928) 213-9009

Black Mesa Trust sponsors talk: Federal government may not have the right to lease Hopi assets

KYKOTSMOVI, Ariz., May 9, 2005-Could a 150-year-old document hold the key to Hopi self-determination? Quite possibly, explained attorney Lana Marcussen at the Hopi Veterans' Memorial Center on April 28, as she discussed the 1848 Treaty of Guadalupe Hidalgo. In that treaty, signed after nine years of war between the United States and Mexico, Mexico ceded 55% of its territory-the lands that would become the states of Texas, New Mexico, Arizona, California and parts of Colorado, Nevada, and Utah-to the American government in exchange for $15 million in reparations for war damage.

The Mexican government gave up land, but negotiated measures to protect the civil and property rights of its citizens who would be living in territories controlled by the United States. In particular, Article VIII guaranteed, "In the said [ceded] territories, property of every kind, now belonging to Mexicans not established there, shall be inviolably respected. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guaranties equally ample as if the same belonged to citizens of the United States," (quoted from a 2004 U.S. Government Accounting Office document, "Treaty of Guadalupe Hidalgo: Findings and Possible Options Regarding Longstanding Community Land Grant Claims in New Mexico").

Ms. Marcussen is an expert in water law, Indian law, and public land law. She has an extensive knowledge of Spanish land grants, and it is on the basis of those land grants given by Spain to the indigenous peoples of the "Americas" that the Hopi may be able to claim real property rights in the land, water, and minerals of their homeland. Hopi real property rights would supersede all other rights, including those claimed by the federal government. Ms. Marcussen explained to an audience overflowing the meeting room that at its most profound basis, the issue is sovereignty. Under the United States Constitution, power is distributed between two sovereigns, the federal government on the one hand and state governments on the other. Under this principle, the third sovereign is the people, as individuals and as a group, and the people's rights are superior to both federal rights and states' rights. Tribal sovereignty, not specified by the Constitution, has had to find its place within this basic structure.

Ever since the federal government "conquered" the indigenous peoples of this country, it has declared itself the principle sovereign over those peoples. The Hopis and other tribes have a little sovereignty, as much as the federal government thinks they should have at any given time, and the federal government holds Indian property in trust to do with as it sees fit, in principle if not in reality, for the benefit of the Indians.

The Treat of Guadalupe Hildalgo turns this theory upside down. "Because the Mexican government recognized you as individual sovereigns together in a city (or pueblo), your right is superior, as is your right to control, without the permission or participation of the federal government, your land and your water," said Ms. Marcussen. She explained that while the Hopi have not yet asserted their sovereign rights, other Pueblo Indians have, and they have won in court. She further explained that the rights of Pueblo people as individuals take precedence over the rights of the tribal governments, which were imposed on the tribes by the federal government by the Indian Reorganization Act of 1934.

When the federal government accepted Article VIII of the Treaty of Guadalupe Hidalgo, it committed to protecting all of the property of the people who chose to remain where they were in the lands ceded by Mexico. These people were Mexican citizens, and the U.S. promised to respect their rights as such, whether they chose to remain Mexican citizens and relocate, or they chose to stay where they were and eventually become citizens of the United States.

The federal government then set about determining how much land belonged to the Pueblo peoples under the terms of the Treaty. In California, they asked the Pueblo peoples in 1851 to provide proof of their land grants and pretty much accepted all of the land claims that were filed. The federal government lost one half of California and realized that it had made a mistake. In response, the government in 1854 radically changed the criteria for proof of Spanish or Mexican land grants in Arizona and New Mexico.

Rather than asking people to bring in their original land grants, the government sent out its own surveyor. If the official surveyor thought someone had a claim, that person would be allowed to bring his papers into court and the court would decide whether to allow the claim. Some scholars have estimated that only about 25% of the original Spanish land grants were recognized in New Mexico (of which Arizona was originally a part), while the GAO report states that as many as 55% were recognized, but in any case, all 23 claims submitted by the Pueblos of what is now the State of New Mexico were eventually proved and honored. On that basis Ms. Marcussen and her colleagues have won primary water rights-not federal reserved rights-for tribes in New Mexico.

So where does this leave the Hopi? The pueblos of the Southwest were given land grants in part because after the Pueblo Revolt of 1680, the Catholic Pope declared that the Pueblo Indians, by virtue of the fact that they lived in cities and had a social and political organization sophisticated enough to drive the priests out of the Southwest at will, which is what they did in 1680, were civilized people (and, incidentally, would make good soldiers). As the Spanish military and clergy re-entered the Southwest, they started issuing land grants to the pueblos as well as to Spanish individuals. Since the Spanish visited Hopi as early as 1540, it is likely that there is a land grant to the Hopi (or, as they were called then, the Moqui). And if there is, the Hopi are entitled to Article VIII rights under the Treaty of Guadalupe Hidalgo. That means that when the federal government holds land or water or natural resources in trust for the Hopi, it is merely a trustee, not a sovereign. Therefore, it does not have the right to negotiate the sale or lease of that property, much less force the Hopi to accept the terms that the federal government has set in collusion with the Department of the Interior for the benefit of multinational corporate interests.

"If you really have Article VIII rights, real property rights," said Ms. Marcussen, "you as individuals and as a people have superior rights. If we can establish that you have Article VIII rights, you are the sovereign. If you are the sovereign, you can say, 'I don't care what you pay; we will not sell.'"

While Ms. Marcussen stated that the United States government is still having a difficult time accepting that Indian peoples could have real property rights, those rights have been affirmed by the courts for the New Mexico pueblos and for the Tohono O'odham in Arizona. When Ms. Marcussen completed her talk, one of the many Hopi elders who were present said, "This gives us lots of energy and hope; it is reminding us of something we already knew, and shows how we might go forward."

Ms. Marcussen's presentation was hosted by Black Mesa Trust as part of its celebration of the Decade of Water. Dedicated to preserving the N-aquifer for future generations of Hopi and Navajo children and to fostering the sustainable and just use of water around the world, the Trust is sponsoring a run from the Hopi Village of Lower Moencopi to Mexico City in March 2006. Native American runners will present indigenous water concepts and ethics to an international audience of world leaders at the Fourth World Water Forum.

Organizations supporting Black Mesa Trust are the Arizona Ethnobotanical Research Association, Black Mesa Water Coalition, Environment Now, Grand Canyon Trust, Honor the Earth, Indigenous Water Institute, Lawyers' Committee for Civil Rights Under Law, Natural Resources Defense Council, Sacred Land Film Project, Sierra Club, Shanker Law Firm, Shearman & Sterling, Toh Nizhoni Ahni, and WaterKeeper Alliance. Supporting Foundations include Acorn Foundation. The Christensen Fund, Oxfam America, Patagonia, Quinney Foundation, SB Foundation, Seventh Generation Fund, and Walton Family Foundation.

For more information about Black Mesa Trust, visit
//www.blackmesatrust.org or call (928) 213-9009 or (928) 734-9255. For more information about the Hopi to Mexico City Run in 2006, visit //www.h2opirun.org or call Ruben Saufkie, run coordinator, at (928) 734-5438.

Photo captions:

An overflow crowd turned up to hear Ms. Marcussen's talk about how the 1848 Treaty of Guadalupe Hidalgo could affect Hopi rights.

Ms. Marcussen explained what the terms of the treaty could mean to Hopi sovereignty.

Informant: Carrie Dann


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