ernon Masayesva served as the chairman of the Hopi tribe from 1990 through 1994. Masayesva lives in the oldest house in the village of Kykotsmovi, a name that means earth-mound ruins, for the remains of an ancient village that once stood here. He is a trim, handsome man with thick black hair. He is wearing jeans and a T-shirt printed with a quote from Gandhi: First they ignore you. Then they laugh at you. Then they fight you. Then you win.
Sitting in his cool, quiet living room, he nods toward the exposed ponderosa pine beams that span the ceiling of the house. The beams were salvaged, he says, from a church burned by the Hopi when they rebelled against their Spanish overlords in 1680. Problems with obtrusive outsiders are nothing new for the Hopi.
Masayesva, now head of the Black Mesa Trust, a nonprofit group that he founded in 1998 to lead the Hopi struggle against Peabody, has seen the company's massive mines only one time, from the air. But since Peabody's arrival, there has never been a time when he -- or any other Hopi -- was not affected by their presence. When he was a high school student in the late 1960s, he would sit in the evenings under an old cottonwood tree, listening to the elders in his village talk about coal and water, and about a man named John Sterling Boyden.
Boyden was a powerful figure in southwestern politics and society for decades. He was a bishop in the Mormon Church and a tenacious, skilled trial lawyer. He also represented the Hopi. The tribe, it seemed, couldn't have wished for a more potent ally. For years Boyden tried to persuade the Hopi to open their land to mining interests. Traditionalists in the tribe rejected the idea out of hand. One of them, Thomas Banyacya, said, "You will make us a landless, homeless people. This is the only land we have." Not to be rebuffed, Boyden helped assemble a tribal council more sympathetic to his own views. On May 16, 1966, Boyden presented it with a lease proposal he had prepared for the council members to sign. According to Charles Wilkinson, a professor of law at the University of Colorado who has studied Boyden's career, Boyden failed to tell the council that Peabody would be operating the largest strip mines in the country on their land. Moreover, he said little or nothing about the huge quantities of water the company would need.
Boyden also neglected to tell the tribe that its coal would help fuel the development boom in the Southwest. With cities like Phoenix and Las Vegas then on the brink of explosive growth, the tribe could have exerted enormous leverage to extract the best possible price for its coal and water. Instead, Boyden's agreement sold the tribe's coal and water rights for absurdly low prices. The Hopi and the Navajo received a royalty rate that was half what the U.S. government received for coal mined on public lands. The water deal was worse -- if there even was a deal. Masayesva says there is no evidence that anyone from the tribe signed a lease that gave Peabody access to the reservation's aquifers.
"There is no record," declares Masayesva. "We hired a law firm to investigate. They couldn't find any record where the tribe ever approved a sale of that water."
Masayesva, who has examined the 1966 lease, says that it contains a handwritten section -- added without the knowledge of anyone on the tribal council -- specifying how much the Hopi would receive for their water. For every acre-foot of water pumped from the aquifer (an acre-foot is the amount of water that would cover an acre to a depth of one foot), Peabody was to pay $1.67. In the arid Southwest, water from the N aquifer should have commanded $30 to $50 per acre-foot.
Why did Boyden fail to protect the interests of his impoverished clients, who even today suffer an unemployment rate that hovers around 50 percent? The mystery wasn't solved until many years after Boyden's death in 1980. One of Wilkinson's research assistants uncovered a startling fact while studying a collection of Boyden's papers in 1992: Boyden secretly worked for Peabody at the same time he was representing the Hopi. Billing records and correspondence with Peabody executives show that Boyden's association with the company lasted from 1964 through 1971. Boyden's chief concern during those years was not the welfare of the Hopi but the development of the Southwest, which would have been impossible without access to the tribe's coal and water.
"The Hopi could nullify the lease with Peabody tomorrow on the basis of that conflict of interest," says Masayesva. But he explains that the tribe is reluctant to attack a man whom many still regard as a benefactor. "They say, 'He was a nice guy. He was good to us. He was a decent person.' There is no one over here saying that the son of a gun sold us down the river -- let's go after it, let's nullify the agreement with Peabody. You don't hear any talk like that. Maybe we're now snapping out of it a little bit, especially those who, like myself, are not keeping quiet."
Even before Boyden's conflict of interest surfaced, the Hopi and Navajo began to recognize the blatant unfairness of their deal with Peabody. (The company defends its dealings with Boyden: "The notion that deceased attorney John Boyden was secretly involved in lease negotiations to benefit Peabody's interests is untrue and a tragic attempt at defaming a dead and honorable man," states Peabody spokeswoman Beth Sutton.) In 1987 the tribes renegotiated their lease with the company and started to receive a fair royalty for their coal. The Hopi also held out for the market price for their water. Instead of $1.67 per acre-foot, they began collecting $300 an acre-foot. The new arrangement didn't provide any remedy for the many additional millions the tribes should have been paid for the previous 20 years, but it assuaged some of their anger, and the money has helped pay for improved schools, health care, and other social services.
"Everything was wrong with this from the very beginning," Masayesva says. But he acknowledges that by 1987, the Hopi should have known better. "When we sold the water, we broke the covenant with our ancestors. We sold something sacred."
