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Forgotten People Submission 4-27-2013

Forgotten People Submission 4-27-2013

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Published by Marsha Monestersky
The Peabody Coal Case: While the class the Forgotten People represents has many grievances and issues, the focus of this portion of the intervention is mining and associated activities by the Peabody Coal Company on and near the Black Mesa Plateau in Arizona. It signed an initial agreement with the Navajo Nation for mineral rights and use of an aquifer in the area in 1964 and signed a similar agreement with the Hopi Tribe two years later. It is said that the “advantageous” contract was signed, giving “unusually advantageous terms,” and done without “clear authority by the governments of the respective Native American tribes.” It was negotiated by an attorney for the Hopi Tribe who was also on the Peabody payroll. It continues to operate under renewed leases....
The Peabody Coal Case: While the class the Forgotten People represents has many grievances and issues, the focus of this portion of the intervention is mining and associated activities by the Peabody Coal Company on and near the Black Mesa Plateau in Arizona. It signed an initial agreement with the Navajo Nation for mineral rights and use of an aquifer in the area in 1964 and signed a similar agreement with the Hopi Tribe two years later. It is said that the “advantageous” contract was signed, giving “unusually advantageous terms,” and done without “clear authority by the governments of the respective Native American tribes.” It was negotiated by an attorney for the Hopi Tribe who was also on the Peabody payroll. It continues to operate under renewed leases....

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Published by: Marsha Monestersky on May 03, 2013
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1 Stakeholder SubmissionFORGOTTEN PEOPLE, INC.A Nonprofit Corporation and Non-Governmental Organizationof Survivors of the Navajo-Hopi Land Dispute in the United States of Americafor theUNITED NATIONS WORKING GROUP ON BUSINESS AND HUMAN RIGHTSUnited States Country Visit, Flagstaff, Arizona27 April 2013
Working Group Mission
The Working Group on the issue of human rights, transnational corporations and other businessenterprises was established on 6 July 2011 by United Nations General Assembly Resolution No.A/HRC/RES/17/4. There are eleven specific mandates to the Working Group, including countryvisits, work with non-governmental organizations and representatives of indigenousorganizations. The methods of work of the Working Group, revised on 30 November 2012,include standards for country visits and field work that require a “spirit” of promotingconstructive dialogue with States and stakeholders about implementing the “Guiding Principles”and eliciting information from stakeholders to make findings and recommendations that“respond to practical and operational realities on the ground” for reports and recommendations tothe Human Rights Council and General Assembly.There is recognition within the United Nations that the activities of corporations, and particularlyextractive industry corporations, raise serious concerns about the human rights of indigenousgroups. Aside from events leading up to the General Assembly Resolution that created theWorking Group the Commission on Human Rights identified the problem of the responsibilitiesof international corporations and human rights in Resolution No. 2005/69 (20 April 2005) as didthe later Human Rights Council in Resolution No. 8/7 (18 June 2008). The United NationsCommittee on the Elimination of all Forms of Racial Discrimination addressed such issues in itsconcluding observations on the reports of the United States of America on the subject of “Elimination of Racial Discrimination.” No. CERD/USA/CO/6 (8 May 2008).CERD identified issues affecting the human rights of indigenous peoples in the United States,including the problem of negative activities involving nuclear testing, toxic and dangerous wastestorage, mining or logging in “areas of spiritual and cultural significance to Native Americans”and the “adverse effects of economic activities connected with the exploitation of naturalresources ... on the right to land, health, living environment and the way of life of indigenous peoples living” (in countries outside the United States).
 Id 
., ¶¶ 29, 30. There was a relatedfinding in ¶ 19, regarding the United States failure to deal with the situation of the WesternShoshone [Nevada] indigenous peoples and prior Committee action on it, and it is important1
 
 because the Committee directed a specific query on that issue that raised the question of whether not the United States complies with its international obligations in Indian treaties. The question isthe rights of indigenous groups to lands that remain under their control under treaties and landswhere such groups retain usufructuary rights, as in the findings in ¶ 29.This group and Dooda Desert Rock, as grassroots indigenous civil society members, lobbiedSpecial Rapporteur on the rights of indigenous peoples, the Hon. James Anaya, on extractiveindustry human rights issues, and his 11 July 2011 report to the Human Rights Council paidspecial attention to “Extractive industries operating within or near indigenous territories.” Report No. A/HRC/18/35 (11 July 2011). The report acknowledged the “Protect, Respect and Remedy”framework of principles previously endorsed by the Human Rights Council,
 Id 
. ¶ 25, andidentified the principles as a foundation for a preliminary plan of work on the issue of extractiveindustries and human rights.
 Id 
., ¶¶ 75-76.The General Assembly of the United Nations stressed the fact that “the obligation and the primaryresponsibility to promote and protect human rights and fundamental freedoms lie with the state”and endorsed the General Principles on Business and Human Rights to implement the United Nations “Protect, Respect and Remedy” Framework in General Assembly Resolution No.A/HRC/RES/17/4 (6 July 2011), second preamble paragraph and ¶ 1. Therefore there areinternational human rights standards that the Forgotten People can utilize in this communicationto the Working Group to guide its conclusions and future reports as the result of its visit to theUnited States of America.
Interest of the Commentator
The nonprofit corporation, “Forgotten People, Inc.” is a Navajo Nation nonprofit corporation andnon-governmental organization with a service membership of Navajos who accurately can beidentified as the “survivors” of the Navajo-Hopi Land Dispute. They are Navajos who live inareas confirmed to ownership by the Hopi Tribe; Navajos who were relocated from Hopi lands; Navajos who suffer in a land area set aside for relocation (in Northern Arizona—the “NewLands”); and Navajos affected by an imposed federal government prohibition of 
all 
developmentin disputed land areas, including improvements to existing homes and other structures — calledthe “Bennett Freeze.” It lasted from 1966 through May 8, 2009 and intensified the poverty of  Navajos and Hopis living in the area.The Forgotten People began as an ad hoc organization that appeared before organs of the United Nations to communicate the distress of Navajos over violations of their human rights. On 7March 2008, as Commissioner Patrick Thornberry of CERD wrapped up Commission commentsto the head of the United States Mission, Thornberry specifically asked that the United Statesreport on the situation at “Big Mountain” (within the Bennett Freeze area) when presenting itsnext report under the international anti-discrimination convention. That report very muchconcerns the interests of The Forgotten People. (No such report has been filed and it is longoverdue.)The Forgotten People particularly stressed human rights violations from relocation and actively2
 
advocated provisions that are now found in Article 10 of the Declaration on the Rights of Indigenous Peoples, prohibiting forcible removal of indigenous peoples from their lands and providing for the “free, prior and informed consent” of those concerned
and 
after agreement for  just and fair compensation and an option of return. Their advocacy helped make that declarationof human rights a reality. It is, as Professor Siegfried Wiessner stressed in a reassessment of indigenous sovereignty under the Declaration, and a recitation of six elements of “an appropriateframework for indigenous identity,” the core of a third “basic claim” for such identity. SiegfriedWiessner,
 Indigenous Sovereignty: A Reassessment in Light of the UN Declaration on the Rightsof Indigenous Peoples
, 41 Vanderbilt J. of Transnational L. 1141, 1174-1175 (2008): “The thirdimportant claim, which ought to be heeded, is the indigenous peoples’ cry for 
 free, prior, and informed consent 
before the government takes any measure affecting them. That includesrelocation and other displacements as well as significant impairment of their distinct heritage.”
 Id 
. (emphasis supplied).The Forgotten People initiated litigation to invalidate a proposed Navajo Nation-Hopi Tribe onthe Intergovernmental Compact between the two Indian nations that concluded the lengthy anddestructive “Navajo-Hopi Land Dispute” on 3 November 2006. The Tuba City District Court of the Navajo Nation dismissed the suit and an appeal followed. The November 29, 2007 decisionof the Navajo Nation Supreme Court declined action on the compact that was concluded the year  before, but upheld the ability of Navajos to contest application of the terms of the compact in the Navajo Nation courts in the future.
 Bennett v. Shirley
, No. SC-CV-21-07 (Nav. Sup. Ct. November 29, 2007).The Forgotten People attempted an unsuccessful intervention with the Secretary of the Interior to block his approval of the compact, and the U.S. Congress subsequently ratified the compact andthe Bennett Freeze was lifted by President Obama on May 8, 2009 when he signed legislation toformally conclude the freeze.The core problem is that, throughout the term of the “conflict,” the freeze and attempts to dealwith the severe and genocidal (with the term being used precisely in terms of intentional harmdone to an identified group of indigenous people) effects of the same and the “concluding”compact, that did not assess individual suffering or provide effective remedies for it. The“Forgotten People” class is most victimized by its own government.One attempt by Congress to deal with adverse impacts of the dispute was authorizing the Navajo Nation to select limited numbers of acres of federal land in New Mexico and Utah to make up for lands surrendered to the Hopi Tribe. There was an associated trust imposed on selected lands thatthey were to be used and managed for the benefit of Navajos who were adversely affected by landdispute events. There was also a specific trust set up for their benefit, the “Navajo RehabilitationTrust,” that was to be managed by the Secretary of the Interior and funded by congressionalappropriations and income from lands selected by the Navajo Nations. The major purpose of landselections was to be for relocation of Navajos being moved off of lands allocated to the HopiTribe.The Navajo Nation selected a large parcel of land in northwest New Mexico as its selection in that3

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