35-36 it is clear that the U.S. government wanted to keep the Navajos "away from the Hopis" but didn't want to "anger the Navajos by moving them." The failure to correctly administer a negotiated settlement in this ongoing dispute was, according to Benedek, "exacerbated" because Indian agents respected the "industriousness" that the Navajos showed and agents on the other hand were "highly critical of the Hopis lackadaisical attitude toward animal husbandry" among other matters (Benedek, p. 36). This was obviously a misunderstanding on the part of Indian agents because the Hopi culture was far more interested in dances, religious customs and ceremonials than raising animals and other cultural traditions of the Navajo.

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...

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…