VERDICT article

Black Mesa Crisis

Author Bio:
Marsha Monestersky has lived on Black Mesa for the past seven years. She
serves as Consultant to Sovereign Dineh Nation, a grass-roots organization of
traditional Dineh families on Black Mesa. She is a founding member of the
International Peoples Tribunal on Human Rights and the Environment and
Co-Chair of the Non Governmental Organization (NGO) Human Rights Caucus at
the United Nations Commission on Sustainable Development. Ms. Monestersky
has facilitated the filing of numerous testimonies to the US Congress, the
United Nations and Citizens Complaints to the US Department of the Interiors
Office of Surface Mining (OSM). Ms. Monestersky wrote the appeal and served
as pro se counsel in 1995 in Administrative Law Court. The initially
successful lawsuit, Dineh Alliance v. Peabody Coal Company and OSM was
described in Judith Nies " Native American History" as the first time Native
Americans ever beat a multi-national corporation in a US court. Ms.
Monestersky received a US Environmental Protection Agency "Certificate of
Merit" in June 1992 and was awarded a Martin Luther King Jr. "Spirit of the
Drum" human rights award in February 1999.
She can be reached at
P.O.Box 1968
Kaibeto, AZ 86053
email: DINETAH29@aol.com

Dineh (Navajo) families living in the Black Mesa region of Arizona are
currently struggling against corporate and governmental powers which have
attacked their right to remain on their ancestral land, to practice their
traditional life-style and religion, and to retain their civil rights. The
primary corporate power is Peabody Coal Company, which operates two large
strip mines in the area and whose activities have caused environmental damage
and the destruction of burial and sacred sites. The governmental powers
include the Hopi and Navajo tribal governments, whose history and operation
are interlinked with the mining industry, and the US Government, which
empowered the tribal governments at the expense of the people on the land.

The combined actions of these corporate and governmental powers have had a
devastating impact on the Dineh families. Over 12,000 families have been
forcibly relocated from their ancestral land to which they are intimately
bound by their religion and traditional economy. The 3,000 Dineh who remain
on the land are currently being forced to choose between relocation and life
without civil rights under the rule of an openly hostile government. Families
near the mining area are subject to the routine destruction of their burial
and sacred sites by mining activities which have also destroyed water
supplies, defaced the landscape, and negatively impacted their health.
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In its war against the Dineh who have resisted relocation, the US Government
has destroyed wells that supplied water needed for their survival in the arid
climate, outlawed even the most basic home repairs, confiscated the livestock
that sustain their subsistence life-style, and subjected them to the rule of
a tribal government in which they are not allowed to vote or participate.

The driving force behind the oppression was the discovery of enormous
reserves of low-sulfur coal beneath the surface of their ancestral lands, so
that control of these lands became the subject of a dispute between tribal
governments manipulated by the coal companies. In the resolution to this
dispute arranged by the US government, the civil rights of the Dineh were
sacrificed so as to satisfy the ambitions of the coal companies and the
tribal governments.

The land dispute was best summarized by Martin Gashweseoma, Keeper of the
Hopi Fire Clan Tablets and a spokesman for the traditional Hopi: "We want
everyone to know that the Navajos are not the ones taking our land, but the
United States. The Hopi and the Navajo made peace long ago, and sealed their
agreement spiritually with a medicine bundle. It is through the puppet
governments, the 'Tribal Councils' forced upon both nations by the United
States, that the illusion of a conflict has been created on the basis of the
false modern concept of land title."

A Brief History of the Conflict
By the time Columbus reached the Americas, the Hopi and Dineh had already
settled the lands they continue to occupy today. The Hopi lived in villages
on the tops of the buttes at the southern end of Black Mesa and farmed the
adjacent land. The Dineh lived in isolated settlements scattered through the
vast lands surrounding the Hopi settlements. The Spanish were driven from the
region by the Pueblo Revolt of 1680, and the tribes were free from colonial
rule until the US acquired jurisdiction over the area in 1848.

The US Bureau of Indian Affairs (BIA) set up offices near the Hopi villages,
both to be near a population center and to be further away from the Navajo,
who were more militant in their resistance to colonial occupation. In 1882,
President Chester Arthur issued an Executive Order establishing a reservation
centered around these offices. While the Hopi and Navajo had coexisted in the
area for centuries without the use of borders, the BIA enforced the partition
of the 1882 reservation into separate Hopi/Navajo areas in 1892 delineated by
the Parker-Keams line, named for the BIA agents who created the boundary. A
number of Dineh were resettled outside the boundary, and over the next 60
years, the Hopi area was expanded to include what became known as District 6.
In the meantime, the adjacent Navajo Reservation expanded so as to surround
the 1882 reservation.

In the early 20th century, oil was discovered on the Navajo Reservation but,
with a readily visible governing structure lacking, the already reluctant
Navajo were unable to approve oil leases required to legitimize the
intrusion. In 1922, with the prodding of the
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BIA agent, the U.S. imposed a federally approved government on the Navajo
(including careful selection of its leaders) to facilitate the tribes
approval of oil leases sought by Standard Oil.

In 1934, Congress passed the Indian Reorganization Act. Under the guise of
support for the ideal of self-determination, tribes were encouraged and
pressured to establish electoral, representative governments that oil and
mining companies and the BIA could more easily control than they could
traditional leadership. In 1936, an election boycotted by the majority of
Hopi opposed to nontraditional governance, established a government
recognized by the U.S.

In the 1950s, lawyers seeking self-enrichment at the expense of the tribes,
insinuated themselves, with BIA approval, as counsel for tribal governments
formed through their efforts. John Boyden, a Salt Lake City lawyer, was
retained as Hopi counsel. Boyden, a Mormon Deacon, also represented the
Peabody Coal Company and was counsel for the Mormon Church, which owned a
controlling interest in Peabody Coal. (Thus, Peabody eventually gained
subsurface rights on exclusive Hopi territory for a fraction of fees paid
elsewhere, and continues to lease mineral rights in Navajo/Hopi territory to
this day.) Attorney Norman Littell was hired by the Navajo Tribal Council.
His contract provided him with 10 percent of coal revenues. Both lawyers were
also motivated by statutory fees of 10 percent in Indian Claims Commission
(I.C.C.) cases, seeking damages for wrongful taking of native lands. Only
after accepting settlements were the tribes informed of the real purpose of
the I.C.C.: to settle land claims by paying a pittance and thereby foreclose
actions to recover lands wrongfully taken.

Unsettled boundary issues between the Hopi and Navajo remained an obstacle to
mineral leasing interests. The coal deposits were mostly located on the area
of the 1882 Reservation outside District 6. Boyden's Hopi government claimed
rights to the deposits within the 1882 Reservation it controlled. Littell's
Navajo government claimed the rights because the area was inhabited by Dineh.
The lawyers filed a collusive lawsuit against each other in 1958 , each tribe
claiming the entire 1882 reservation. The 1962 Healing v Jones decision
designated District 6 as exclusive Hopi land, and the rest of the 1882
reservation as a Joint Use Area. The mineral rights to the Joint Use Area
would be divided between the two governments, and leases with Peabody Coal
were signed in 1966.

A lawsuit against the leasing was brought by traditional Hopi whose religion
forbade strip mining. The suit was dismissed for failure to join an
indispensable party (the Hopi tribe) that could not be joined due to
sovereign immunity. By its ruling, the Court simply avoided the claim that
the recognized government was fraudulently imposed.

Exploitation of Joint Use land continued to be problematic, given dual tribal
interests, but the lawyers had a solution. Coinciding with the pressures of
the 1970s energy crisis, and long before Wag the Dog, the attorneys and
mining interests planted stories about a budding range war between Hopi and
Navajo (there is even evidence that Boyden retained a public relations firm
to promote the story) and lobbied hard for
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federal legislation that was required to separate Hopi and Navajo interests.
In 1974, with little opportunity for input from tribal people, Congress
passed the Navajo-Hopi Settlement Act, dividing the Joint Use Area into
Navajo Partition Land (NPL), on which lived 100 Hopi, and Hopi Partition Land
(HPL), on which lived 13,000 Navajo. Those on the wrong side of the line were
required to relocate.

Over the course of the next decade, thousands of Navajo were evicted from
their homes and sacred lands. In 1988, Manybeads v. U.S. was filed to stop
the relocations. The suit challenges the Navajo relocation primarily by
alleging that it destroys the Navajos right to exercise site-specific
religion. The Court dismissed, stating, among other things, that relocation
benefits (provided by the U.S.) would be the envy of countless millions in
other countries. The 9th Circuit detoured the case into mediation, which was
wrestled from the grasp of the plaintiffs into that of the tribal
governments. They negotiated an Accommodation Agreement, permitting only
specified individuals to sign, and thereby to stay put for 75 years but
thereafter to forego relocation benefits. Other Dineh who were ineligible to
sign were simply required to move on. This Accommodation Agreement was passed
into law by the Congress in 1996.

Through the federally established Navajo Hopi Indian Relocation Commission,
a total bounty of $25 million to the Hopi was placed on Navajo Accommodation
Agreement signatures, resulting in fraud, threats, and intimidation. The
nonsigning resistors who cooperate with the ONHIR in their removal have some
say in the location and construction of replacement housing. Resistors who do
not cooperate will be concentrated in an area called the New Lands. Purchased
at a bargain basement price by the U.S. in 1980, the New Lands, near Sanders,
Arizona, are completely inadequate for subsistence grazing and agriculture,
and are 60 miles downstream from the containment dam that held back
uranium-contaminated water until 1979, when the dam burst and the water
spilled into the Rio Puerco. Removal of both cooperating and noncooperating
resistors begins in February 2000.

Meanwhile, the ONHIR enforces a strict prohibition against repairs and
improvements to the properties of resistors. New glass for a broken window
must be smuggled in. Vehicles and homes are searched for building materials,
which when found, are confiscated. Both signators and nonsignators alike are
subject to grazing restrictions that require them to sell most of their sheep
and cattle, leaving them with insufficient numbers to maintain a subsistence
living. Those who refuse to sell have their animals confiscated without
compensation.

Mining Abuses
The current Hopi and Navajo Tribal governments were originally assembled for
the purpose of facilitating mining, and they continue to receive most of
their funding from mining revenues, which make up 80% of the budget of the
Hopi government and a similarly large percentage of the Navajo government
income. As noted in a decision by Federal Judge Ramon Child in a 1996 suit by
the Dineh families against Peabody
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Coal: The Navajo Nation with head offices in Window Rock, Arizona, near the
New Mexico State line, shares very little of the $45,000,000 annual royalty
from the mine, or benefit therefrom, with the members of the Navajo Nation
who reside in the proximity of the mine. Thus, while the Navajo Nation
benefits from the proceeds of the mining, the unhappy fact is that its
members who live near the mine suffer from the effects of that same mining.
(Dineh Alliance v. Peabody, US Dept. of the Interior Board of Land
Appeals, 1996)

The tribal governments control the enforcement of NAGPRA and environmental
law with respect to the mining, and under these circumstances, it is not
surprising that protection of the environment and of the rights of the
families in the mining area is subordinated to the objective of facilitating
mining operations. For example, the enforcement of NAGPRA in the mining area
is controlled by Navajo Historic Preservation Department, whose priorities
were demonstrated in their May, 1999 testimony to the NAGPRA Review
Committee, at which they claimed that a 1960's survey of archaeological
resources funded by Peabody Coal exempts them from obligation to protect
burial or sacred sites in the mining area.

Residents in the mining area are imprisoned by the tribal governments if they
try to prevent the destruction of burial or sacred sites. Bah Begay had to
watch as bulldozers unearthed the graves of her twin sisters and turned the
site into a disposal area. Ataid Lake was threatened with arrest and being
run over when she tried to stop bulldozers from destroying a talking rock
sacred to the Dineh people and from unearthing a site containing the graves
of many Anasazi and Dineh. Mabel and Lucille Benally were jailed for trying
to stop a bulldozer from expanding a coal stockpile outside of their front
door and told they would remain in jail unless they agreed not to protest the
mine.

The protection against environmental abuse provided by SMCRA is also
subverted by the tribal governments. For example, SMCRA prohibits mining
within 100 feet of an occupied dwelling. But if Peabody wishes to mine where
a Dineh family lives, it contacts the tribal governments, which are
contractually obligated to evict the family, so that the dwelling is not
occupied when the bulldozers reach it. Since the tribal government and not
Peabody does the evictions, Peabody skirts the law.

The tribal governments value their short-term revenues from mining over the
long-term survival of their people. The output of the Black Mesa mine is
mixed with water and transported 273 miles through a slurry line to the
Mohave Generation Station in Laughlin, NV. Operation of the slurry line
requires pumping 1.4 billion gallons of precious ground water each year from
the N-aquifer, threatening water supplies for communities in the area.

The Dineh families in the mining area suffer many other effects of the
mining. The morning horizon is thick with dust from overnight operation of
drag lines that remove the top layers of earth to expose the coal. Blasting
is frequent and frightening. Surface water sources have been poisoned or
destroyed. Sites that were the sole source of sacred and medicinal plants
have been destroyed by the mine.
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Strip mining violates basic teachings of both the Hopi and Dineh traditional
religions in which the Earth is a living entity that is harmed by mining:
"[Mining] must not be allowed to continue for if it does, Mother Nature will
react in such a way that almost all men will suffer the end of life as they
now know it"
[Thomas Banyacya, spokesperson for the traditional Hopi]

"The things we respect are being destroyed by the mining. All the things they
dig out are part of the Earth. It is like with your body, if somebody would
take out your heart" [Alice Benally, traditional Dineh]

Black Mesa has special religious significance in both the Hopi and Dineh
religion, which compounds the desecration from the coal mines.

Relocation
The forcible relocation of Dineh families living in areas partitioned to the
Hopi Tribal government was mandated by P.L. 93-531 in 1974. Over 12,000
people have already been relocated at a cost of over $350 million to the US
government. The relocation program has been a tragic failure:

"The forcible relocation of over 10,000 Navajo people is a tragedy of
genocide and injustice that will be a blot on the conscience of this country
for many generations"
[Leon Berger, who resigned as Executive Director of the Navajo-Hopi
Relocation Commission in 1982]

"I feel that in relocating these elderly people, we are as bad as the Nazis
that ran the concentration camps in World War II" [Roger Lewis, one of three
federally appointed relocation commissioners, who resigned in 1982]

"The forced relocation of over 12,000 Native Americans is one of the worst
cases of involuntary community resettlement that I have studied throughout
the world over the past 40 years. Such a situation would never have arisen in
the US if the people involved had been Anglo-Americans. That alone
illustrates the extent to which the human rights of one of the poorest
minority groups in the US have been violated."
[Dr. Thayer Scudder, Professor of Anthropology at the California Institute
of Technology, who has studied resettlement issues in Africa, Asia, and the
Middle East for the UN and the World Bank.]

In mandating relocation, the US government overlooked alternative methods for
resolving the conflict between the tribal governments, such as financial
compensation as normally used in such cases. It further ignored the impact of
relocation upon people whose religion was intimately bound to their ancestral
homesites: At birth our children are made part of the Earth by burial of
their umbilical cords. At death they are returned to the Earth in a
traditional way. Between those times Dineh pray at established sites within
their customary use area. The ceremonies-Puberty, Blessing Way, Yei Bi Chei,
and many others, which insure our health and place in creation, are performed
in this same region. Sacred springs and offering points, as well as the
location of ceremonial
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plants, are also contained here. Ours is a religion of Nature, based on
specific places,
and guided by natural laws. Through the beauty of nature we gain the beauty
in our lives. [Roberta Blackgoat]

Our religion tells us the land is our Church and the Hogan its Altar. We wont
be driven from our Church, or allow our Altar to be destroyed. To do so would
be to abandon our religion. Without our land and sacred ways we lose the
essence of what it is to be Dineh, and become fallen leaves scattered by the
winds. [Roberta Blackgoat]

"The word Relocation does not exist in the Navajo language. To be Relocated
is to disappear and never be seen again." [Pauline Whitesinger]

Grazing Issues
Grazing regulations threaten the ability of the Dineh on HPL to pursue their
traditional economy and way of life and is causing confrontations between the
Dineh and the authorities. Under the Accommodation Agreement, the Dineh were
granted 2,800 SUYL (sheep-units-year-long), which is substantially less than
the 5,000 SUYL estimated as being needed for current herd sizes. The Dineh
object to this quota system because the number requires the reduction of
current herds and because the distribution of available permits among the
Dineh unfairly rewards a small number of families who have cooperated with
the authorities. The range management system also prohibits traditional
methods of range conservation which would enhance carrying capacity. The BIA
currently has jurisdiction over range management on HPL, but this authority
will be transferred to the Hopi Tribe on February 1, 2000. The range
management issue also reflects the discrimination affecting Dineh who would
remain on HPL under terms of the Accommodation Agreement.

The 2,800 SUYL allocated is less than a fair quota. The 1996 range inventory
used by the BIA establishes a carrying capacity of 12,547 SUYL on HPL. In
compensation for their allowing Dineh to remain on HPL for 75 years, the US
government is giving the Hopi Tribe 500,000 additional acres of additional
land. The Hopi will also receive grazing fees from the Navajo Tribe for the
use by Dineh on HPL. Under these circumstances, restricting the Dineh to 20%
of available permits is not an appropriate share, especially when this limit
will require a substantial reduction in the livestock of traditional
subsistence herders.

Most Dineh on HPL refused to participate in the mediation process which led
to the Accommodation Agreement because it involved acceptance of the validity
of the 1974 law which stripped them of their land title and gave jurisdiction
over their territory to the Hopi Tribe. The few families who chose to
participate in the mediation process received a proportionally higher number
of permits. The families who refused to sign leases with the Hopi Tribe under
terms of the Accommodation Agreement are not eligible for permits and face
immediate confiscation of their entire herds by the BIA, which they view as
an attempt to starve them off of their land in preparation for their
eviction. Many of the families who did not participate in the negotiations
but later signed leases in order to avoid eviction discovered that they
received no permits, so that while they are allowed to remain on the land,
they are denied their means of survival.
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The Dineh also reject the BIA system of range management, which prevents the
use of separate summer/winter camps which were the key element to their
traditional method for conservation the range. The use of livestock
confiscation by the BIA as the primary mechanism of range management imposes
hardship upon subsistence herders whose options are different from those of
commercial ranchers, and typically results in the loss of livestock without
compensation. The Dineh lacking sufficient permits live in constant fear, not
knowing each day if they will be targeted by the impoundment squadrons which
will confiscate their primary means of survival. Resistence to the
confiscations is treated harshly, such as when Rena Babbitt Lane was severely
beaten during an impoundment.

Range management jurisdiction will be transferred to the Hopi Tribe on
February 1, 2000, and their proposed range regulations discriminate against
the Dineh. Dineh must apply for annual permits, while the Hopi receive 5-year
permits. If an SUYL allocation is not used one year by the Dineh, such as
because of the death of an animal, the Dineh loses the right to the
allocation. When new allocations are required, such as for the birth of new
animals, the Dineh only receive permits if no Hopi ranchers request permits.
The natural fluctuation in herd sizes can be expected to erode the 2,800 SUYL
available to the Dineh families over the 75 year period of the leases.

Accommodation Agreement
The cornerstone of current US policy on Black Mesa is the Accommodation
Agreement (AA) which was the basis for PL 104-301 in 1996 and which was
worked out in negotiations triggered by the Manybeads lawsuit. The Agreement
was strongly opposed by most of the Dineh: for example, it was rejected by a
155-1 vote when presented at a community meeting in Rocky Ridge.

Only part of the Dineh currently living on HPL are eligible for leases under
the AA, so that many are still subject to eviction. In addition to being
ineligible to sign leases, these people are not eligible for relocation
benefits, so that they are subject to eviction with no place to go. An
informal census, where local residents counted people living in the area,
suggests that the eligible list may cover less than half the people currently
living there. The ineligible group includes people in many different
circumstances. Some people lost their eligibility when they remained on the
land or returned after a member of their family accepted relocation benefits
during the last twenty years. Others lost their eligibility when the official
head of household died and their right to sign was not transferred. Others
are part of extended families living in eligible households, but would not be
able to remain under the AA guidelines limiting relatives who are allowed to
remain under the leases. Some people were never on the list, as they have
avoided the government in the hope that anonymity would protect them. The
number of people affected by relocation has always been understated by US
officials. For example, in 1974, they testified before Congress in that less
than 3,000 people would require relocation, but over 12,000 have already been
relocated and as many as 3,000 still remain on the land.
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Those who are eligible to sign leases under the AA are faced with a choice
between relocation and living without civil rights under the rule of a
government that is openly hostile to them. The people who sign leases will be
subject to the rule of the Hopi Tribal government in which they are not
allowed to vote or participate. They have no mechanism to appeal any actions
by the government or its judicial and police system, as the sovereign status
granted the tribal governments precludes access to US courts and they are not
allowed to file suit in the tribal courts. These institutions openly
discriminate against the Dineh families, as already shown in the grazing
ordinance. Under the AA, the Dineh are required to obtain permits for many
activities essential to their survival and religious practice, so that they
are helplessly dependent on the whim of the tribal government.

The AA does not provide a long-term solution allowing Dineh to remain on HPL.
The grazing allocation of 2800 SUYL is insufficient for current herds, so
that many families will lack a means of survival if they choose to remain on
the land. The long-term leases can be revoked for many reasons, such as being
found guilty of minor infractions three times by Hopi courts within a 15
year period, or for non-payment of various fees by the Navajo tribal
government.

Most of the Dineh reject the AA on more fundamental grounds. They do not
recognize the right of the US government or the tribal governments that it
created to turn them into tenants on lands their families have occupied for
hundreds of years. The Dineh religion holds the people responsible for
protection of the land. As the people receive small (3 acre) plots, control
over the land is transferred by the AA to agencies committed to destructive
use of the land, such as strip mining, fencing, and commercial grazing.

Current Status
PL 104-301 provides that after February 1, 2000, the Hopi Tribe may evict
Dineh who are eligible for leases but have not signed them. On the same date,
jurisdiction over grazing and other issues will be transferred from the BIA
to the Hopi Tribe. Some actions to enforce terms of the AA have already
begun. Several families who are not eligible to sign leases have already
received exclusion orders which evict them from HPL. The BIA has also begun
enforcement of the grazing permit quotas established under the AA, and some
families have already lost livestock as a result of confiscations.
Enforcement of the grazing quotas and the eviction of ineligible families is
expected to accelerate over the next few months.

The Manybeads plaintiffs are now petitioning the 9th Circuit to revisit the
merits of their claims, alleging the failure of mediation. In addition, the
Dineh have sought help from the U.N. Human Rights Committee and Commission,
the White House, the BIA, the Department of State, and other agencies.
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Despite the approach of the February 1, 2000 deadline for relocation, the
Dineh maintain their strength and commitment to protect their sacred land, as
expressed by Roberta Blackgoat, the founder of the community organization
Sovereign Dineh Nation: "We who are unalterably opposed to Relocation gain
our strength by maintaining our traditional religion. We wish harm to no one
and don't understand why weve been made to suffer so much for so long. We
remember our honored friend and Traditional Hopi Elder, Grandfather David
Monongye. He often told why many Traditional Hopi knew it was the Creators
idea for Dineh to live here. He was taught the Dineh were brought to surround
the Mesas by the Holy Ones so as to provide a
protective buffer from the forces of greed and destruction. If, and when,
the Traditional Dineh are removed from these lands, his people would fail in
turn, and the Earth would be destroyed. He knew from ancient teachings that
Dineh and Hopi were physically and spiritually bound together. He realized,
as do the current Resisters to relocation, that if the Dinehs Church and
Altar can be destroyed, so could everyone elses."
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Box 1: Request for Assistance

A legal team is currently being formed to assist the Dineh families in a wide
range of issues and actions. Expertise is needed in many legal areas: the
protection of constitutional rights under US law, application of
international law, grazing rights under federal and tribal law, protection of
burial and sacred sites under NAGPRA and federal law, protection of
environmental rights under SMCRA, interface with Congress and the Executive
branch, and civil actions for damages resulting from mining and other
activities. Assistance is also needed in many specific geographic areas - in
Washington DC for government relations, in Arizona for local actions, and in
New York and Geneva for interface with international bodies. Assistance would
be appreciated on many levels - in consultation and development of
strategies, help in the preparation of briefs and research, as well as
representation in various legal actions. People wishing to contribute
services on a pro bono basis can contact the
Action Resource Center
PO Box 2104
Venice, CA 90294
phone: 310-396-3254
email: arcla@envirolink.org
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Insert Box 2: Video & More Information

Vanishing Prayer is a powerful 16 minute mini-documentary that summarizes the
political history of the Dineh and their current crisis of relocation. For
information on the video, see: http://www.solcommunications.com/tapes.html

Two web sites that provide excellent background information and updates
on events on Black Mesa as well as links to other sites include:

http://www.solcommunications.com/dineh.html
http://www.theofficenet.com/~redorman/pagea~1.html
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