Chapter 2
A QUESTION OF TRUST

The utmost good faith shall always be observed towards the Indians.  .  .  .
-- Northwest Ordinance of 1787

During the nineteenth century, an array of alien forces challenged the cultural and tribal autonomy of the Hopi and Navajo peoples. Missionaries, folklorists, Anglo-American settlers, and government officials encroached on their land, and while some of that land was eventually "reserved" for the tribes, the Navajo's by treaty in 1868 and the Hopi's by executive order in 1887, a law that allotted tribal property to individual members (who could then convey it to buyers outside the tribe) threatened the integrity of tribal holdings long after the ink was dry.^[90] But the history of the current water crisis does not really begin until the twentieth century, when, in 1909, the U.S. government detected coal beneath the Black Mesa plateau.^[91]

The government's discovery sparked intense interest among mineral companies, which soon conducted their own research in the region. Finding extensive coal, oil, and gas deposits, some of them began pressuring the Bureau of Indian Affairs, the agency charged with protecting tribal lands, for permission to open the Hopi and Navajo reservations to development.^[92] The bureau was prepared to comply. A few small mining operations run by Navajos were quickly replaced by larger, non-Indian enterprises.^[93] Then, when discovery of oil in the northeastern corner of the reservation drove demand higher still, the bureau -- citing an 1891 law permitting mineral development on Indian lands that were not already committed to farming or agricultural purposes (and were not desired for individual allotments) -- created dubious "general councils" and nonrepresentative "business committees" to rubber-stamp the first oil leases on Navajo property.^[94] When some of these general councils started turning leases down, the bureau dismissed them and created new councils with prodevelopment leanings.^[95] The first true Navajo tribal council was established in 1923, but only through a scheme that gave the bureau almost complete authority in matters of leasing, perhaps in exchange for promises of government aid.^[96] Long distances to major markets and the region's poor transportation system initially hampered mineral mining on the reservation; by the 1930s, however, oil revenue had become important to the tribe's operations.^[97]

As with the Navajo, the first significant barrier to mineral development on the Hopi section of Black Mesa was the lack of any formal governmental body to negotiate and approve a lease. Ironically, it was the Indian Reorganization Act (IRA) of 1934, a law intended to reduce the exploitation of tribal land, that paved the way. John Collier, commissioner of the bureau under Franklin Roosevelt and a champion of Native American rights, believed that the tribal constitutions called for in the IRA would enable tribes to operate more efficiently in a changing and increasingly exploitative world. Yet the kind of centralized government he envisioned was deeply at odds with Hopi tradition and its respect for the integrity of individual clans. When, after long and acrimonious debate, the tribe was forced to vote on a constitution, the vast majority of its members abstained, a traditional Hopi form of protest. Collier certified the election nonetheless and the Hopi Tribal Council was born.^[98]

For 20 years the council would be mired in disagreement. The Hopi constitution required religious leaders from the villages, known as Kikmongwi, to approve the council's members, but they routinely refused to do so, and in 1943 the council was forced to disband; the bureau's attempts at reinstatement met with little success.^[99] It was an ambitious Salt Lake City lawyer named John C. Boyden, twice candidate for Utah governor, who managed to assemble (through means that have been severely criticized) a new governing body of "progressive" Hopis in 1953. Boyden got the bureau to confirm him as Hopi general counsel, over the objections of local agents, before an official, representative tribal council had been constituted; he then used his authority to pull a small quorum of leaders together -- over the objection of elders and other traditionalists who refused to participate and eventually found themselves shut out.^[100]

Meanwhile, the postwar boom had created a great demand for electric power, and pressure was mounting to tap the energy resources of the Southwest. Uranium production was becoming big business in the region, Congress was authorizing dams for the Colorado Plateau; Four Corners, the area's first coal-fired power plant, was nearly complete and utility companies were planning to build more.^[101] To sign mineral leases for Black Mesa, however, the Hopi and Navajo had to settle a long-standing dispute over property rights. Although the 1882 executive order that established the Hopi reservation was intended to protect Hopi land from encroachments by Mormons and increasing numbers of Navajos, it failed to assign ownership of Black Mesa with sufficient legal clarity.^[102] It took 80 years and a federal court decision to resolve the competing claims. In the Healing v. Jones case of 1962, the U.S. District Court of Arizona ruled that minerals in the disputed portion of the Hopi reservation were jointly owned and ordered that royalties received from mining activities be divided equally between the two tribes.^[103] For supporters of development, the decision came at precisely the right time.

The real draw for Black Mesa coal was the Central Arizona Project (CAP), a massive network of aqueducts, tunnels, pumping plants, and pipelines designed to transport millions of acre-feet of water each year from the Colorado River to arid lands in the American Southwest. Introduced in Congress in the 1940s, CAP was initially controversial. Twenty years passed before Arizona, California, Colorado, and Nevada could settle their political differences and agree to move forward -- and then the project was stalled by public opposition to its plans for the Colorado River, which would have flooded the Grand Canyon with backwater from a hydroelectric dam.^[104] Rather than build the dam, Secretary of the Interior Stewart Udall opted to obtain the power needed for CAP by expanding the Mojave coal plant in eastern Nevada.^[105] The Mojave plant looked in turn to Black Mesa for its coal.

As a result of this new dependence, the Navajo and Hopi were in a position of considerable leverage from which to dictate their lease terms; according to current scholarship, however, the tribes' lawyers failed to secure not only the highly favorable terms that circumstances might have made attainable, but even the standard terms on options and royalties included in public and private mineral leases from the same period.^[106] There were no public hearings. Minutes of the Hopi Tribal Council show little discussion of the lease negotiations or the rate of financial return, and apparently no information regarding the magnitude of the operation, its use of water for slurry, or its environmental consequences was provided.^[107] Extraordinarily, John Boyden, the Hopi's long-time general counsel, reportedly was representing Peabody on Black Mesa coal and water matters at the same time he represented the Hopi in the lease negotiations -- an apparent conflict of interest that might have worked to the serious disadvantage of the tribe. There is no indication that Boyden ever informed his Hopi clients of his conflict of interest.^[108]

On June 6, 1966, the Hopi Tribal Council signed a lease for the Black Mesa coal mine, with proceeds to be split evenly between the Hopi and Navajo in accordance with the district court's decision in Healing v. Jones. The lease was rife with inequities. For example, it accorded Peabody rights to 40,000 acres of land for at least ten years, even though federal regulations ordinarily limited coal leases in Indian country to just 2,560 acres.^[109] (The purpose of these regulations was to reduce the possibility of environmental exploitation, to ensure that tribes wishing to develop their resources could proceed in a way that "minimizes any adverse environmental impacts or cultural impacts resulting from such development.")^[110] And for each acre-foot of groundwater, Peabody was to pay the tribe a mere $1.67 -- a rate that one prominent scholar has called "laughable."^[111]

Perhaps the most remarkable component of the Peabody lease is the escape clause inserted by Secretary Udall. In an effort to assuage his concerns about the use of potable water for a coal-slurry pipeline, Udall added an option enabling future secretaries of the Interior to end Peabody's groundwater mining. Should the secretary determine "at any time" that Peabody's pumping "is endangering the supply of underground water," he may compel the company to "obtain water for its mining and pipeline operations from another source that will not significantly affect the supply of underground water in the vicinity," or to "provide water in quantity and of quality equal to that formerly available."^[112] (See sidebar below, "Secretary Udall and the Black Mesa Lease.") Despite growing evidence that Peabody's pumping is contributing to the water problems on Black Mesa, no Interior secretary has exercised his contractual authority.

In 1987 the lease was renegotiated, providing some remedy for the economic injustice the Hopi and Navajo had suffered. Under the new arrangement, the tribes began to receive a standard royalty of 12.5 percent (which they continue to divide), nearly doubling the proceeds that the Hopi, for their part, had gained before; in ten years they would be able to reopen negotiations in the hope of driving the rate upwards.^[114] Today, annual revenues from the Black Mesa mine amount to between $10 and $20 million for each tribe, which, together with the salaries of its Navajo and Hopi employees, make Peabody a principal source of income in an otherwise underdeveloped economy.^[115] But the new lease did nothing to remedy the environmental impact that Peabody's operations have caused, nothing to lift the disproportionate burden of risk that the tribes have been compelled to bear.^[116]

The U.S. government, meanwhile, has an historic duty to fulfill.

THE TRUST RESPONSIBILITY

From the early nineteenth century, American law has embraced the concept that the federal government owes a unique duty to Native Americans. The existence of such a duty was first articulated by John Marshall, Chief Justice of the Supreme Court, in the seminal 1831 case Cherokee Nation v. Georgia.^[117] Marshall described the relationship between the various Native American tribes and the federal government as "perhaps unlike that of any two other peoples in existence, . . . [m]arked by peculiar and cardinal distinctions which exist nowhere else." To Marshall, the tribes were nothing less (and nothing more) than "domestic dependent nations." "Their relation to the United States," he concluded, "resembles that of a ward to his guardian."^[118]

Marshall's characterization of the tribes will justifiably strike modern ears as paternalistic and condescending.^[119] By nineteenth-century standards, however, it was enlightened, holding as basic legal principle that the federal government must safeguard the interests of the sovereign peoples it absorbed in its expansion westward. Unfortunately, as the tribes were pushed onto reservations and into poverty over subsequent decades, Marshall's characterization of the tribes as dependent nations became increasingly accurate and the government's duty -- its trust responsibility -- grew by necessity in scope and importance. When the Supreme Court wrote of the government's trust responsibilities in 1886, there was a grim reality behind its words. "These Indian tribes," the Court observed,

are the wards of the nation. They are communities dependent on the United States -- dependent largely for their daily food; dependent for their political rights. They owe no allegiance to the states, and receive from them no protection. Because of the local ill feeling, the people of the states where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them, and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the executive, and by congress, and by this court, whenever the question has arisen.^[120]

Modern courts have recognized that the general duty articulated by Marshall and his brethren obligates the federal government to consider and protect tribal interests in many different contexts, but especially when the government exercises control over the use of natural resources on tribal lands. The specific trust duty owed to tribes by the federal government in such circumstances rises to the level of a fiduciary duty -- a duty similar to what lawyers owe their clients, executives their shareholders, and trustees their beneficiaries. In a typical case from 1983, the Supreme Court held that the federal government could be sued for violating its fiduciary duty and be liable for monetary damages after it mismanaged timber resources belonging to the Quinault Tribe.^[121] Justice Thurgood Marshall, writing for the Court, found that "a fiduciary relationship [between the tribe and the federal government] necessarily arises when the government assumes such elaborate control over forests and property belonging to Indians."^[122]

Other courts have held the government liable for failing to properly manage a reservation's oil and gas or mineral resources, much as the Interior Department has done with the Black Mesa and Kayenta mines.^[123] The government's fiduciary duty in such cases arises out of a network of statutes, including the Indian Long-Term Leasing Act, the Mineral Leasing Act, and the Indian Mineral Development Act.^[124] In each of these statutes, the government reserves to itself ultimate supervisory authority over the extraction of oil, gas, and minerals from tribal lands. The Indian Mineral Development Act, for example, specifically instructs the secretary of Interior to veto mineral lease agreements that are not in a tribe's best interests, taking into account (among other things) "the potential environmental, social, and cultural effects on the tribe."^[125] Together and singly, the laws of mineral leasing vest the Interior Department with broad control over Native American resources -- and with control comes responsibility.^[126]

The fiduciary duty we have described has been found applicable to Native American water rights as well. Thirty years ago, in Pyramid Lake Paiute Tribe v. Morton, the U.S. District Court for the District of Columbia enjoined the diversion of water from Pyramid Lake, which is located on the Paiute reservation in Utah, by an upstream dam.^[127] Diversions had diminished the value of the lake to the tribe by raising its salinity and preventing fish from returning there to spawn -- and yet, rather than protect the tribe's historic interests, the secretary of the Interior tried to achieve an "accommodation" between the tribe and the federal agency that constructed and operated the dam.^[128] According to the court, the secretary's actions must be held against a high bar: "The United States, acting through the Secretary of the Interior, has charged itself with moral obligations of the highest responsibility and trust. Its conduct . . . should therefore be judged by the most exacting fiduciary standards."^[129] Although the Pyramid Lake case was about surface water, a recent decision from the Arizona Supreme Court indicates why applying its conclusions to groundwater is essential to the future of tribes in the Southwest. "[S]ome reservations lack perennial streams and depend for present or future survival substantially or entirely upon pumping of underground water. We find it no more thinkable in the latter circumstance [dependence on groundwater] than in the former [dependence on surface water] that the United States reserved land for habitation without reserving the water necessary to sustain life."^[130]

The general trust duty owed to the Navajo and Hopi and the specific fiduciary obligation established under the Indian Mineral Development Act are reflected in the terms of Peabody's lease, which gives the Interior Department (in the person of its secretary) ultimate authority over the Black Mesa and Kayenta mines. Interior has the right to end Peabody's ancillary pumping of the N-aquifer if it determines that pumping is "endangering the supply of underground water in the vicinity or so lowering the water table that other users of such water are being damaged."^[131] As we will see in the next chapter, the agency has taken some steps to move the parties toward settlement, but progress has come slowly; in the meantime, Peabody has been allowed to operate on the basis of an interim permit, without having to guarantee the cost of reclamation for its coal mining activities as regulations would otherwise require.^[132] If Peabody's operations have contributed to the decline of the N-aquifer system -- and the company's status as principal user all but compels a fiduciary to make that assumption -- then Interior's failure to protect the Hopi and Navajo's drinking water constitutes a breach of both its general and specific trust duties. (In any event, Interior's duties compel it to upgrade its monitoring and assessment programs.) Courts have rigorously enforced these duties when a tribe's natural resources are threatened.^[133]

The federal trust responsibility is not the only law or legal doctrine compelling the Interior Department to take a stronger stand and keep Peabody from depleting the N-aquifer under an indefinite interim permit. Action is demanded by the Surface Mining and Control Act, which requires the government to either "grant, require modification of, or deny the application of a permit" in a "reasonable time," and the Administrative Procedure Act, which more generally requires it to take administrative action within a reasonable period of time.^[134] A number of federal environmental statutes including the Clean Water Act and Safe Drinking Water Act, which were amended in the 1980s and early 1990s to give tribes additional responsibility, may also apply.

Also weighing on the government are national and international laws and policies that protect Native American religious sites, such as the sacred springs on Black Mesa, from degradation. In 1978, Congress passed the American Indian Religious Freedom Act (AIRFA), making it "the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian . . . including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonies and traditional rites."^[140] In 1996, President Clinton used an executive order to strengthen the law. In order to "protect and preserve Indian religious practices," he ordered all federal agencies to avoid adversely affecting the physical integrity of sacred sites.^[141] By continuing to allow Peabody to deplete the supply of water to Black Mesa's springs, Interior is adversely affecting their physical integrity, thus threatening the Hopi's religious practices contrary to AIRFA and President Clinton's executive order.

International principles further strengthen the case for the agency's intervention. Recognizing the value of water resources to indigenous society, culture and religion, the United Nations Draft Declaration on the Rights of Indigenous Peoples asserts their "right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, [and] waters . . . which they have traditionally owned or otherwise occupied or used, and to uphold their responsibilities to future generations in this regard."^[142] If overpumping the Hopi springs, the Hopi's traditional relationship with these springs will be broken, and their ability to practice and pass on essential elements of their religion compromised. The Hopi may be denied their fundamental right to "manifest [their] religion or belief in worship, observance, [and] practice," guaranteed them by the International Covenant of Civil and Political Rights, which the United States recently ratified.^[143]

The United States is in a unique position to safeguard the water supply of the Hopi and Navajo peoples. Sound public policy as well as trust responsibility and fiduciary duty require that the government act decisively to protect the N-aquifer and the sacred springs it feeds.

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Notes

90. For a detailed account of the interactions between these groups in the late nineteenth and early twentieth centuries, see Clemmer, Roads in the Sky, pp. 27–84. On the establishment of the Hopi and Navajo reservations, see Frederick J. Dockstader, "Hopi History, 1850–1940" in William C. Sturtevant, gen. ed., Handbook of North American Indians, Vol. 9 (Washington, D.C.: Smithsonian Institute, 1979), pp. 524–28 (Hopi reservation); Garrick Bailey and Roberta Glenn Bailey, A History of the Navajos: The Reservation Years (Santa Fe, N.M.: School of American Research Press, 1986), p. 25 (Navajo reservation).

91. Benedek, The Wind Won’t Know Me, p. 133.

92. Ibid., p. 133; Charles F. Wilkinson, "Home Dance, the Hopi, and Black Mesa Coal: Conquest and Endurance in the American Southwest," Brigham Young University Law Review (1996): p. 456.

93. Bailey and Bailey, A History of the Navajos, p.161–63. As early as 1913, some Navajo in the northern portion of the reservation developed larger-scale operations from which they reaped a significant profit.

94. The 1891 law, which governed "Leases of Land for Grazing and Mining," appears in Statutes at Large 26 (1891): p. 795 (codified as amended at United States Code 25 (1998): § 397). On the advent of "general councils" and "business committees" -- which in some cases consisted of only three men -- see David F. Aberle, "Navajo Economic Development," in William C. Sturtevant, gen. ed., Handbook of North American Indians, Vol. 10 (Washington, D.C.: Smithsonian Institute, 1979), p. 647; Bailey and Bailey, A History of the Navajos, p. 120; and Benedek, The Wind Won’t Know Me, p. 142.

95. Bailey and Bailey, A History of the Navajos, pp. 120–21; Benedek, The Wind Won’t Know Me, p. 142.

96. On the 1923 Tribal Council, see Aberle, "Navajo Economic Development," p. 647; Bailey and Bailey, A History of the Navajos, p. 121. At least one historian has argued that in complying with the government’s wishes the Council had been relying on promises of federal aid. See Lawrence Kelly, The Navajo Indians and Federal Indian Policy (Tempe: Arizona, 1976), p. 69.

97. See Bailey and Bailey, A History of the Navajos, pp.121–22 (annual royalties), 235 (delays in development). See also Aberle, "Navajo Economic Development," pp. 647–648.

98. On pre-election maneuverings, see Clemmer, Roads in the Sky, pp. 147–53. See also Harry C. James, Pages From Hopi History (Tucson, Az.: The University of Arizona Press, 1974), pp.203–205; Wilkinson, "Home Dance, the Hopi, and Black Mesa Coal," p. 456–58; Dockstader, "Hopi History, 1850–1940," pp. 530–31.

99. Charles F. Wilkinson, "Home Dance, the Hopi, and Black Mesa Coal," pp. 458–59.

100. For secondary accounts of this episode, see ibid., pp. 461–63; Clemmer, Roads in the Sky, pp. 210–11; and Benedek, The Wind Won’t Know Me, pp. 134–36.

101. Robert Gottlieb, A Life of its Own: The Politics and Power of Water (San Diego: Harcourt Brace Jovanovich, 1988), pp. 52–54 (dams); The Human Radiation Experiments: Final Report of the President’s Advisory Committee (New York: Oxford, 1996), p. 355 (uranium mines); Charles F. Wilkinson, "Home Dance, the Hopi, and Black Mesa Coal," pp. 464–65 (coal plants).

102. See Benedek, The Wind Won’t Know Me, pp. 133–34; Wilkinson, "Home Dance, the Hopi, and Black Mesa Coal," p. 463.

103. Federal Supplement 210 (D. Ariz. 1962): p. 125. For an account of the Healing decision, see David M. Brugge, The Navajo-Hopi Land Dispute: An American Tragedy (Albuquerque: University of New Mexico Press, 1994), pp. 96–100.

104. For summaries of CAP’s tortuous political history, see Norris Hundley, Jr., Water and the West: The Colorado River Compact and the Politics of Water in the American West (Berkeley: The University of California Press, 1975), pp. 322–326; Gottlieb, A Life of its Own, pp. 143–49; and Rich Johnson, The Central Arizona Project, 1918–1968 (Tucson, Az.: University of Arizona Press, 1977), pp. 110–74.

105. Gottlieb, A Life of its Own, pp. 54–56. Though deemed a victory by environmental groups in the 1960s, the Mojave plant itself would become the cause of numerous anti-pollution campaigns by the early 1990s. See Scott Thomsen, "Plant to Clear Canyon Air," Associated Press (Oct. 6, 1999) (available at http://www.abcnews.go.com/sections/science/DailyNews/grandcanyon_smog991006.html as of March 2000).

106. See Wilkinson, "Home Dance, the Hopi, and Black Mesa Coal," pp. 470–72 (comparing Hopi lease, with its low royalty rate for coal, low compensation rate for water, lack of a clause to reopen negotiations, and other deficiencies, with contemporary mineral leases).

107. Interview with Vernon Masayesva, former Hopi Tribal Chairman (Sept. 2, 1998). For a secondary account, see Wilkinson, "Home Dance, the Hopi, and Black Mesa Coal," p. 466, 469–71.

108. Wilkinson, "Home Dance, the Hopi, and Black Mesa Coal," pp. 469–72 (citing correspondence between Boyden and Peabody Coal Company and Boyden’s billing records). See also Charles Wilkinson, Fire on the Plateau: Conflict and Endurance in the American Southwest (Washington, D.C.: Island Press, 1999), pp. 169–71, 298–304.

109. Compare Mining Lease between the Hopi Tribe, State of Arizona, and Sentry Royalty Company [later Peabody Western Coal Company] (June 6, 1966), p.2 (40,000 acres) with Code of Federal Regulations 25 (1999): § 211.25(b) (2,560 acres).

110. Code of Federal Regulations 25 (1999): § 211.1(a).

111. Wilkinson, "Home Dance, the Hopi, and Black Mesa Coal," p. 471. The going rate per acre-foot was between $30 and $50.

112. Mining Lease (June 6, 1966), p. 3.

113. All of the statements quoted in this sidebar were taken from an interview with former Secretary Udall that originally appeared in John Dougherty, "A People Betrayed," Phoenix (Ariz.) New Times (May 1, 1997) (http://www.phoenixnewtimes.com/issues/1997-05-01/feature.html/page1.html as of Mar. 1, 2000).

114. See Charles F. Wilkinson, "Home Dance, the Hopi, and Black Mesa Coal," p. 480.

115. See Peabody Group, Peabody Western Coal Company (available at http://www.peabodygroup.com/info/pub/PWCC.html as of Sept. 2000). See also Edward A. Kennard, "Hopi Economy and Subsistence," in William C. Sturtevant, gen. ed., Handbook of North American Indians, Vol. 9 (Washington, D.C.: Smithsonian Institute, 1979), pp. 554–562; and Marshall Tome, "The Navajo Nation Today, "in William C. Sturtevant, gen. ed., Handbook of North American Indians, Vol. 10 (Washington, D.C.: Smithsonian Institute, 1979), pp. 679–683. It should be noted that the number of Hopi employees has always lagged far behind the number of Navajo workers, due primarily to the mine’s greater distance from Hopi villages. See, e.g., Office of Surface Mining Reclamation and Enforcement, Proposed Permit Application FEIS, Vol. I, pp. II--41 to III-42 (estimating 1990 employment at 20 Hopi and 800 Navajos).

116. In the early 1990s, the Hopi renewed their complaint about groundwater depletion. For coverage, see Bill Lambrecht, "Water Rights: Hopi Challenge Peabody Coal," St. Louis Post-Dispatch (July 9, 1990): p. 7; and Seth Mydans, "Indians Battle Coal Company to Preserve Springs of Life," New York Times (July 24, 1990): p. A-6.

117. The origins of the notion of a special duty on the part of the federal government towards the tribes arguably predates the ratification of the Constitution. For example, the Northwest Ordinance of 1787 states that "[t]he utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and in their property, rights and liberty, they shall never be invaded or disturbed . . . but laws founded in justice and humanity shall from time to time be made, for preventing wrongs being done to them, and for preserving peace and friendship with them." Article III, Northwest Ordinance (1787) (reprinted in Melvin I. Urofsky, ed., Documents of American Constitutional and Legal History (New York: Knopf, 1989)). Unfortunately, the United States has more often than not failed to live up to these goals.

118. Cherokee Nation v. Georgia, United States Reporter 30 (5 Pet.) (1831): pp. 16, 17 (1831).

119. See generally Note, "Rethinking the Trust Doctrine in Federal Indian Law," Harvard Law Review 98 (1984): pp. 422, 426.

120. United States v. Kagama,United States Reporter 118 (1886): pp. 384–85.

121. United States v. Marshall, United States Reporter 463 (1983): pp. 225–27.

122. Ibid., p. 225.

123. Pawnee v. United States, Federal Reporter, 2d Series 830 (Fed. Cir. 1987): p. 187; Jicarilla Apache Tribe v. Supron Energy Corp., Federal Reporter, 2d Series 782 (10th Cir. 1986): p. 855 (adopting, en banc, the dissenting opinion of Judge Seymore in Jicarilla Apache Tribe v. Supron Energy Corp., Federal Reporter, 2d Series 728 (10th Cir. 1984): p. 1555).

124. These statutes can be found at United States Code 25 (1999): § 396 (Indian Long-Term Leasing Act); United States Code 25 (1999): §§ 396a–396g (Mineral Leasing Act); United States Code 25 (1999): §§ 2101–2108 (Indian Mineral Development Act).

125. United States Code 25 (1999): § 2103. See also Indian Long Term Leasing Act, United States Code 25 (1999): § 396 (requiring the secretary of Interior to approve or reject all mineral leases and some sales of allotted Native American land); and Mineral Leasing Act, United States Code 25 (1999): § 396(c) (authorizing the secretary to impose "such conditions as [he] may proscribe" on all oil and gas leases of unallotted tribal lands).

126. Individual statutes and regulations that in themselves may not vest the government with a sufficient degree of control can be read collectively to establish a complete fiduciary relationship. See United States v. Mitchell, United States Reporter 463 (1983): p. 226. See also Brown v. United States, Federal Reporter, 3d Series 86 (Fed. Cir. 1996): p. 1561 (clarifying Mitchell to find that an enforceable fiduciary duty may exist in the government’s assumption of a supervisory role).

127. Pyramid Lake Paiute Tribe of Indians v. Morton, Federal Supplement 354 (D.D.C. 1972): p. 252.

128. Ibid., p. 297.

129. Ibid., p. 297 (quoting Seminole Nation v. United States, United States Reporter 316 (1942): p. 296).

130. In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, Pacific Reporter, 2d Series 989 (1999): p. 746. For an analysis of the Gila River decision within the context of Native American water law, see Susan M. Williams and Raquel Montoya-Lewis, "Federal Indian Water Rights: Fundamentals and New Developments in Federal Indian Water Law," Native Americas (Summer 2000): pp. 20–23.

131. Mining Lease (June 6, 1966), p. 3.

132. Code of Federal Regulations 30 (1999): § 750.11 (covering interim permits). See also memorandum from Kathy Karpan to Thomas J. Casadevall (Sept. 9, 1998), p. 2 (characterizing the bond issue as "extremely important").

133. See, e.g., Kittitas Reclamation District v. Sunnyside Valley Irrigation District, Federal Reporter, 2d Series 763 (9th Cir. 1985): pp. 1032ff; Confederated Tribes of the Umatilla v. Alexander, Federal Supplement 440 (D. Or. 1977): pp. 553ff; Northwest Sea Farms v. United States Army Corps of Engineers, Federal Supplement 931 (W.D. Wash. 1996): 1515ff; Klamath Tribes v. United States, Civ. No. 96-381-HA (D. Or. 1996) (slip opinion). See generally F. Cohen, Handbook of Federal Indian Law, 1981 ed. (Charlottesville: Michie-Bobbs Merrill), pp. 220–28.

134. See United States Code 30 (1999): § 1260 (Surface Mining and Control Act); United States Code 5 (1999): § 706 (Administrative Procedure Act, which orders the "[t]he reviewing court [to] compel agency action unlawfully withheld or unreasonably delayed").

135. Seth Mydans, "Indians Battle Coal Company To Preserve Springs of Life," New York Times (July 24, 1990): p. A6.

136. Peter Whiteley, "Paavahu and Paanaqawu: The Wellsprings of Life and the Slurry of Death," Cultural Survival Quarterly (1996): p. 2.

137. Armin W. Geertz, The Invention of Prophecy: Continuity and Meaning in Hopi Indian Religion (Los Angeles: University of California Press, 1994), p. 408.

138. Laura Thompson, Culture in Crisis: A Study of the Hopi Indians (1950), p. 127; Thomas E. Mails and Dan Evehema, Hotevilla: Hopi Shrine of the Covenant, Microcosm of the World (NewYork: Marlowe & Co., 1995), pp. 132, 159, 361.

139. See Statement of Hopi Religious Leaders (1971) (distributed by Committee of Concern for the Traditional Indian, San Francisco, Calif.).

140. United States Code 42 (1999): § 1996(1).

141. See preamble and § 1(a) of Executive Order 13007, Federal Register 61 (May 24, 1996): p. 26771.

142. Draft United Nations Declaration on the Rights of Indigenous People (Aug. 26, 1994), art. 25 at 552 (reprinted in International Legal Materials 34 (1995): p. 541).

143. International Covenant on Civil and Political Rights, General Assembly Resolution 2200A (XXI) (Dec. 16, 1966, entry into force Mar. 23, 1976), art. 18 (reprinted in Center for Human Rights, Human Rights: A Compilation of International Instruments (New York: United Nations, 1988) (U.N. Sales No. E.88.XIV.1), p. 26). The Covenant was ratified by the United States on September 9, 1992. See Public Notice 1853, Federal Register 54 (1993): p. 45934.