Conflict resolution theories and the Navajo-Hopi land dispute

Wind Won't Know My Name

The Wind Won't Know Me: A History of the Navajo-Hopi Land Dispute. Even though ethno-historian, author and Indian researcher David Brugge referred to Emily Benedek's handling of the enormous volume of material she tackled as "superficial," Brugge acknowledges that in Benedek's personal observations she "succeed remarkably well" (Brugge, 1994). Brugge has justification -- or perhaps an axe to grind? -- for his editorial viewpoint since he too has written a book on the Navajo-Hopi conflict. Brugge complains that in her book Benedek does not handle information written by others well at all and he is chagrined that she identifies "virtually every author as an anthropologist," even though the author she alludes to might be a journalist, a historian, or just a researcher. Moreover, Benedek does not evaluate what she has read, Brugge continues; she reports on the relocation program with the competence that is expected of a journalist but her presentation of the events that led up to the relocation is not reliable, Brugge insists (Brugge, 1994). But Brugge's negativity notwithstanding, Benedek uses her journalist's sense to lay out a well-developed recounting of the myriad facts, historical events, personalities, cultures, and conflicts in this sad tale of the U.S. Government's mismanagement, arrogance and cultural insensitivity that targeted 50 Hopis and 10,000 Navajos for removal. This paper incorporates scholarly theories and models related to conflict resolution into the overlapping, sometimes overwhelming and emotional stories that surround these contentious issues.

Rewarding strategies and a coercive approach

In C.R. Mitchell's book The Structure of International Conflict the author discusses "Reward as Conflict Behavior" and offers that these strategies can work when there has been a recent history of friendship between the parties involved in the conflict (Mitchell, p. 148). There has not been a history of friendship in the Navajo-Hopi relationship. In addition, there was never a sense in these tense situations where the Navajos were being asked to leave that "justice" would be accorded to the Navajo. Meanwhile, in order to offer a replacement to the Navajo -- for the 900,000 acres they had to give up to the Hopis (Navajo-Hopi Indian Land Settlement Act of 1974) -- Congress authorized the Navajo to buy 250,000 acres (Benedek, p. 101). That would apparently be a reasonable way to solve the problem for the Navajo, it was thought. However, the property the Navajo selected was known as the "Arizona Strip" and it caused a big negative reaction from white deer hunters and Mormon ranchers. It included land along the Colorado River -- too prime, robustly beautiful and pristine to hand over to Indians, perhaps.

Were there any negotiation over what land the Navajo could have in lieu of their own Tribal lands they were being evacuated from? Within the structure of the Navajo vs. U.S., no. But certainly in Congress there were negotiations between senators and representatives as they reached agreements and passed amendments to the Settlement Act (PL 93-531) that prevented the Navajo from claiming the land that they thought they had been given an opportunity to settle on. In a way, this was "third party intervention" on the part of Congress because elected officials were indeed external to the conflict. But in a real way this is an example of the coercive approach to conflict resolution. The direct power of Congress -- pushed along toward the agenda of the white man -- made a decision in the interest of their own political agenda, and the Navajo had to accept the results.

In Roger Fisher's book Getting To Yes: Negotiating Agreement Without Giving In (Fisher, et al., 1991) had their been negotiation between the Navajo and the Bureau of Indian Affairs, three criteria could have emerged: a) a "wise agreement" may have been reached; b) the agreement would have been "efficient" (moving a tribe of Native Americans off their land after centuries of inhabiting that land cries out for fairness vis-a-vis the space where the Indians are expected to relocate); and c) the relationship between the two parties should be improved by the agreement, or at the very least the relationship should not be damaged (Fisher, p. 4). Fisher asserts that successful outcomes are rarely possible when "positional bargaining" takes place. The more attention that is given to a party's position, the less attention will be devoted, Fisher asserts, to "meeting the underlying concerns of the parties" (Fisher, p. 5). In the matter of the Hopi Tribe giving consideration to negotiating with the Navajos (as per the Ninth Circuit Court of Appeals) (Benedek, p. 389), they went against what Fisher recommends. The Hopi listed ten conditions that had to be met before negotiating with the Navajo. What would have been called for in this matter (Fisher) is integrative and principled negotiation. Fisher's principled negotiation concept (Week 12 notes) calls for separating the "people from the problem" and given the nature of the conflict, it would seem impossible to separate the Indians from the problem because their culture is linked to the land.

The distributive (ZERO-SUM) theory was clearly present (Fisher, et al.) because the Hopi's gain was the Navajo's loss. And moreover the possibility of principled negotiation was rarely a part of the drama that played out over the years between the three parties (Hopi, Navajo and the U.S. Government).

Negotiation or Third Party Intervention? Or Alternative Dispute Resolution?

The 1934 Indian Reorganization Act called for a "New Deal for Indians" and contained a requirement that tribes create constitutions and governments (like the white man does). New boundaries based on soil conservation and grazing lands were drawn, and when about 100 Navajo families were found to be living within Hopi lands (District 6) in 1965, "They were expelled" (Benedek, p. 36). Interior Secretary Stewart Udall's 1958 statute (Public Law 85-547) allowed for a third party intervention into the ongoing squabble over land rights. A three-judge panel in Arizona's District Court was established to rule on this issue and nine days later the Hopi chairman (Healing) sued the Navajo tribal chairman (Jones) in a "friendly lawsuit" called Healing v. Jones. This it seems clear was an attempt of a third party (the court) to resolve an issue that hadn't been resolved previously through negotiation.

The ruling (the case went all the way to the U.S. Supreme Court) flatly gave the Hopi Tribe "the exclusive right and interest, both as to the surface and the subsurface, including all resources,' to District 6." But the lower court -- backed up by the High Court -- also said that the Hopi and Navajo "have joint, undivided and equal rights and interest both as to the surface and subsurface [meaning minerals, coal, oil, etc.] including all resources" (Benedek, p. 37). Besides the District 6 property, the High Court asserted what all objective observers knew, that both tribes had equal interests in the 1.8 million acres that made up the rest of the territory designated in 1882, "leaving more unanswered questions than had existed before the case was heard" (Benedek, p. 37).

But because of the many questions that were not answered, the courts in this matter really didn't put a final resolution in place at all. Still this situation between the Hopi and Navajo could fall within Mark Davidheiser's Alternative Dispute Resolution category. This clearly was a court-connected attempt to resolve a long-standing conflict; and it was not a "standard form of adjudication" because the tribal chairpersons were originally given the opportunity to launch a "friendly suit" to resolve the matter.

Coal, Oil and Conflict in the world of the Navajo

Coercive Approach: Energy companies need land and resources to keep producing electricity. That is always their argument and there is no doubt about their needs. It is not necessarily true that energy companies are greedy or that they have cultural or ethnic bias against Native Americans. It's just that when there are resources available, the goal is to find a way to recover those resources. Sometimes the goal is sought with such aggressiveness that the energy companies appear to be insensitive to cultural and historical land issues. But after all, without electricity, humans -- certainly Navajos are included on this list -- are left in the dark and have no way to power their homes, schools and industries. How important is electricity? Hundreds of members of the National Academy of Engineering held a vote on the "Greatest Engineering Achievements of the 20th Century." The greatest engineering achievement wasn't the airplane, the automobile, the radio, the TV, the computer or space travel. It was "electrification" -- the wires and structures that move electricity from power stations out to cities, factories, schools, and Indian reservations (www.greatachievements.org).

Coal, oil and gas are certainly vitally important energy sources; energy companies dislike knowing the coal is there but certain land rights block access to those resources -- and create conflict. In the case of the discovery of an estimated 21 billion tons of coal lying under the Black Mesa, along with substantial other energy sources, Benedek writes that the political reality of the disputed lands -- the Hopi had bitterly complained for years about Navajo "encroachment" -- was not about Hopi complaints or Navajo expansion. It was about "the pressure of oil and gas companies to determine ownership of the area" (Benedek, p. 134).

Conflict in this matter has many faces. The initial conflict was between the Hopi and the Navajo over boundaries and land use.

In the matter of oil and gas and coal resources there were several layers of conflict heaped on top of one another. The coercive approach to these several conflicts is clear and apparent, but it cries out for careful examination because it is deeper and wider than the obvious.

Without the pressure from the energy companies, however, the land conflict might not have been resolved, Benedek writes (p. 138).

Getting to Yes: Negotiating Agreements without Giving In

The way in which the process of moving Navajo and Hopi -- in order for energy companies to fully exploit the coal beneath their disputed lands -- was through the Navajo and Hopi Indian Relocation Commission. Coal is king when huge energy companies decide they need what's under the land, no matter that the Hopi really believed that the Great Spirit had placed them there to protect the land. But the commission was the way in which this long-term conflict was to be resolved. The expert on relocation that is referenced in Benedek's book is Thayer Scudder, who predicted "four primary effects of relocation on the Navajos" (p. 174). He believed that moving hundreds of Navajo families would: a) "undermine the people's faith in themselves"; b) make the "relocates" become "dependent on the agency that had moved them"; c) cause "stress and alienation" which would "lead to the disruption of the family"; and d) lead to the increase of "depression, violence, illness and substance abuse" (Benedek, p. 175). Moreover Scudder projected that the moves would "undercut the influence of local leaders" and indeed "set up conflicts between the relocates, the hosts, and the outsiders" (Benedek, p. 175).

"All these dire predictions came to pass," Benedek writes (p. 175). One of the reasons the move was such a total disaster is the selection of members of the commission; Benedek explains that they were "political hacks who were astonishingly unqualified and ill prepared for their jobs." Their task to make the transition livable and smooth required "sensitivity, flexibility, and foresight" but instead the "upper level" Commission staff was "rigid, unimaginative and defensive" (Benedek, p. 175).

The Commission's attitude was like "the guards as Auschwitz," Benedek continues. "This is the law and we have to do it' is what they say." Clearly here the Commission could have pursued a third-party style intervention, being sensitive to these proud Native Americans, understanding their needs. But instead, the Navajo were actually expected to move onto land "that was already occupied and overgrazed" -- which was dispiriting and depressing for the Navajo.

The Navajo and the Hopi may have had "joking relationships" within their cultures, but clearly from Benedek's narrative the reader does not have a sense that there was any joking relationship between the Hopi and the Navajo. Mark Davidheiser writes about West Africans who are connected by relationships that are good-natured and tend to reinforce "positive inter-ethnic interaction and mitigate inter-group conflict" (Davidheiser, 2006).

When courts get involved -- Coercive rather than "third party intervention"

There is "no such thing as an Indian fence" (Benedek, 308) the author writes, and indeed fences being constructed symbolize the taking of Indian rights and Indian property. While cutting a swath through Bessie Begay's property the BIA police and the Hopi Rangers are confronted by the "Bros" (four Navajos). The Indians verbally protest then begin pulling metal fence posts from the ground; they are handcuffed and put in the Hopi Trial Jail. The Indians believe the fence is meant to offend them and they are additionally insulted when they learn the fence crew uncovered a cradleboard that the Navajo had placed into the juniper tree from which it had been taken. In addition, the fence is close to sacred burial sites, further upsetting the Navajo.

Benedek notes on page 310 that the courts have given the green light to the Hopis to manage their land as they wish to; and moreover grazing districts are arbitrary and are there for the purposes of regulate the movement of cattle, but as the attorney for the BIA Dan Jackson said (p. 311), the placement and the timing of building a fence "requires wisdom." But unfortunately, Jackson went on, one person's "wisdom" is "another's folly." Mohammed Abu-Nimer's assertion in the class notes suggest that any conflict can be settled through "rational planning." But this fence across Bessie Begay's land is upsetting the Navajo and there doesn't seem to be anything rational about the conflict at this stage.

Abu-Nimer writes in the Journal of Peace Research that the deeper the cultural "content" is internalized within individuals, the more likely "images or schemes will motivate actions" (Abu-Nimer, 2001, p. 687). In this case the cultural content of the Navajo sees the image of a fence being assembled across what was open land and that motivated the four Navajo to pull up the metal fence posts, as the image of their land being sectioned off was an outrage. Abu-Nimer's contention is that religion and culture could be used to influence conflict resolution through prescriptive and/or elicitive approaches. In an elicitive approach, the participants must be trained to understand the three dimensions of the "attitudinal-change triangle," which is "head, heart, and hand (3H)" (Abu-Nimer, p. 689). Those three points of the triangle link with cognition, emotion, and behavior, Abu-Nimer continues. But how will any mediator or skilled negotiator be able to bring Hopi and Navajo together (in the context of the BIA) to influence a peacebuilding process? This process should have been launched with "intercultural sensitivity training" long before the situation moved into crisis mode with the building of the fence.

Conclusion

Arizona State University Professor of Anthropology Orit Tamir asserts that the Hopi Indians got by far the best deal from the government in this conflict (Tamir, 2000). He describes the Navajo's "disrupted lifestyles," psychological stress, and "elevated levels" of the need for mental health services among the Navajo resulting from the move. Many of the Navajo that were relocated in Pinon, Arizona felt like the relocation "ruined them" and that they feared the future. They had a right to be fearful, Tamir writes, because most of those who were relocated were "deprived…of their main subsistence resources, land and livestock." It's hard not to agree with Tamir who insists that no one in the federal government or the Hopi leadership "ever gave fair consideration" to alternative solutions. That should be the lesson learned in this sad affair that goes on today: relocation is a disastrous policy, and as the World Bank's guidelines assert "Involuntary displace should be avoided or minimized whenever feasible" (Cernea, 1991). The World Bank also states that Indigenous people…must be provided with adequate land…" and in this case they certainly were not.