by Nies, Judith
THE HOPI LAND CLAIMS CASE
Boyden did file a land claim for the Hopi and a few years later won a $5 million settlement for the tribe and another large fee for himself. Although he worked on a contingency basis, he was eventually well paid. (A Freedom of Information suit filed by the Native American Rights Fund revealed that Boyden received $2.7 million in total fees from the Hopi, equivalent to $16 million today.) Former Hopi chairman Abbott Sekaquaptewa said that Boyden expected to be paid. “We were a poor tribe,” he told Anita Parlow. “We had no significant income. . . . So we were in a great need of money. For tribal operations—to build up the tribal organizations and to continue to have legal counsel.” The Indian Claims Commission awards, however, had significant limitations about which Boyden had not advised his new clients. First, the Claims Commission law stipulated that no return of actual land was possible, a fact that the Hopi did not understand when they hired Boyden to file a “land claim” for them.* Second, the financial settlement was to be based on the value of the land when it was taken in the nineteenth century, not its market value in the middle of the twentieth century. Third, the law provided for attorneys’ expenses and additional fees that were “not to exceed ten percent” of the monetary award. Finally, and most important, in accepting the financial settlement, the Indian tribes relinquished forever any title to aboriginal land.
Where was the land? the Hopi council members asked. They thought they were going to get land, real land. Why else would people in their villages agree to hire a lawyer to file a suit? Why call it the Indian Land Claims Court if it can’t give back land? (Actually, the Indian Land Claims Commission was its popular name, not its legal name.) The claims were all about lost land. Even though the Hopi Tribal Council was often called Boyden’s puppet council, they didn’t budge on this point. They wanted real land.
So Boyden was obliged to explain that once the Hopi cashed the government’s check, they would relinquish all rights to any claim on aboriginal lands. So the Hopi refused to cash the check. Rather than return the check to the commission, Boyden worked out an agreement whereby the money would be put in a trust account in Salt Lake City in case a future tribal council saw things differently. The Hopi’s check sat for years, earning interest, and by 1990 it was supposedly worth $11 million. Meanwhile, there was the question of how the Hopi, a people with a subsistence economy, could keep earning enough money to build tribal offices, pay salaries for tribal government, and pay Boyden’s legal fees. By this time Boyden was also appointed as tribal attorney, a separate designation from claims attorney. In this role he was authorized by the BIA to give general legal advice and opinions on various possibilities for business development. He could draw up contracts for mineral leasing. The extent of the Black Mesa coal reserves had been confirmed since 1911. Mining was the most promising avenue for economic development, and it was this possibility that eventually took Boyden to the Department of the Interior to clarify the Hopi’s right to issue mineral leases on the 1882 Executive Order Reservation. Coal mining had been an integral part of his life and the town where he grew up. As a Mormon it was also part of his religious belief that if there were minerals under the ground, you had to get them out and make the earth productive.
COALVILLE, UTAH
Although photographs of Boyden make him look like a small-town lawyer or a bank title attorney, he was an extremely ambitious man, politically, economically, and in terms of the Mormon Church. In fact, the word ambitious was the single adjective most often used to describe John Boyden, beginning when he was a teenager growing up in Coalville, Utah.
When it comes to AMBITION, we will all have to take our hats off to this boy. . . . After being graduated from North Summit High School in June, he went to work on the section [railroad], a real day’s work for most men, but not for John. Each night he comes home, gets on his wheel [bicycle] and takes care of his paper route. Not being satisfied with the day, he goes into the dark room and develops film for people about town. . . . [H]ere’s hoping his fondest ambition will be realized, that of finishing the university course and thence to an eastern law school.
Summit County Bee, Spring 1924
Coalville was a small, rural Mormon town in the Wasatch foothills that was noteworthy for an outcropping of coal that would prove to be a small tail on the monster coal deposit just over the border in Wyoming, later known as Powder River Basin. Boyden grew up understanding how coal could make a family and a town wealthy and prominent. He believed in coal.
When I visited Coalville in 2010, I found a semideserted town with empty storefronts on Main Street dotted by “For Lease” signs in the windows. The view from Boyden’s old house included speeding trailer trucks winding through mountain passes, heading for Salt Lake City. I imagined that when Boyden was a boy, it was still an expansive green valley with rich agricultural fields and snow-topped mountains, punctuated by the train whistle of the Park City Railroad as it wound through mountain passes, carrying freight cars of gleaming coal. Today most automobiles are more likely to exit ten miles down the highway at Park City, a former silver-mining town that is now an overbuilt ski resort.
Boyden’s family held prominent positions in the town. His grandfather, father, and uncles all held posts of importance in the town, the county, and the church: bishop of the Latter-day Saints (LDS) church, Coalville mayor, secretary for the Park City Railroad Company, Summit County tax assessor, clerk for the Utah Territorial Legislature, superintendent of schools, pharmacist and owner of the Boyden & Son Drug Store. The drugstore was such an important institution, it is now replicated in the city hall museum. It was in the drugstore that I found copies of John Boyden’s stationery after he had moved his law offices to the Kennecott Building in Salt Lake City. By then Kennecott Copper had bought Peabody Coal and was one of the owners of the Black Mesa leases.
His grandparents were among the many land-hungry immigrants recruited in England who arrived in Utah during the pioneer era of the 1860s. They were sent to an agricultural settlement in the Wasatch foothills called Grass Creek. Salt Lake City, forty-five miles away, was largely treeless, bitterly cold in the winter, and desperate for heating fuel. Brigham Young, the Mormon president in Salt Lake City, offered a large reward to anyone who could find coal in the nearby Wasatch Mountains. Within a year some resourceful prospector located a rich coal seam in the foothills near Grass Creek, and soon hundreds of tons of coal were being extracted. With no railroad, the coal was loaded onto ox-drawn wagons, transported to Salt Lake, and sold for an extravagant $35 to $40 a ton. Coal became so profitable that in many families, the men worked as miners in the winter and farmed in the summer. Boyden’s grandfather worked for the Park City Railroad, and the town became so wealthy from coal that Grass Creek was renamed Coalville and became the site of a Mormon temple. The memory of its early history with coal is still commemorated with a rail wagon filled with coal that sits outside city hall.
John Boyden grew up in his grandfather’s house with an aunt, his parents, and several uncles. According to family lore, one day in the 1880s forty Shoshone Indians descended from the hills and did a “war dance” in front of Grandfather Boyden and the Mormon bishop. The two men, clearly outnumbered and wanting to negotiate the Indians’ quick departure, gave them several head of cattle and sacks of flour. The official history of Summit County records this incident, but without the participation of Grandfather Boyden. (The Indians were probably starving because by then the sixty thousand Mormon settlers had shot all the game.) Boyden’s daughter reports that from an early age, Boyden was interested in Indians and collected arrowheads and pieces of pottery he found in the mountains and in the property around the house. Coalville was on the migration route of Ute and Shoshone into Wyoming. (Wasatch means “pass” or “passage” in the Ute language.)
Boyden went to the University of Utah Law School, worked as a US attorney for sixteen years in Salt Lake City, and then in 1946 partnered with Washington, DC, attorney Ernest Wilkinson in the successf
ul Ute claims case. After that he understood how a fortune could be made in representing Indians.
Although Chester Arthur’s 1882 Executive Order specified that the 3,900-square-mile reservation was for the Hopi (Moqui), it also included “for other Indians” as a general category. At the time an accompanying report estimated the number of Hopi to be eleven hundred, the Navajo at three hundred, and an uncounted number of Paiute—some fifteen hundred people in an area three-quarters the size of Connecticut.
The thousands of Navajo families who had settled within the interior of Black Mesa naturally claimed they were those “other Indians.” Consequently, neither tribe had clear title to mineral leasing on the 1882 Executive Order Reservation land. And without clear title, no mining company would take a chance on signing a lease with one tribe that could be challenged by the other. Mining required so much capital investment, no energy company would buy leases that could not be exercised. Seven years before Boyden, Standard Oil of California had asked the BIA in 1944 which tribe owned—and therefore had authority to lease—the mineral deposits of the Executive Order Reservation.
In a letter of exceptional clarity, the BIA’s legal counsel, Felix Cohen, had written an opinion for the secretary of interior. With the title “Ownership of the Mineral Estate in the Hopi Executive Order Reservation,” Cohen set out the issues in a single-spaced seven-page report and concluded, “I therefore hold that the rights of the Navajos within the area who settled in good faith prior to October 24, 1936 are coextensive with those of the Hopis with respect to the natural resources of the reservation.” In short, both the Hopi and the Navajo had equal rights to the subsurface minerals.
Boyden repeatedly petitioned the secretary of interior to revise Cohen’s opinion so as to clarify the boundaries of Hopi and Navajo lands. Each time, the interior secretary and his legal counsel told Boyden that the determination of all Indian reservation boundaries lay solely with Congress. With typical thoroughness, Boyden studied the problem and came up with a bold, but ingenious, solution. At the time he knew as much as any lawyer in the country—except for his partner, Ernest Wilkinson, and Felix Cohen—about how the Indian Claims Commission had been set up and worked. Wilkinson had helped write the law that created it. Why not use the precedent of the Indian Claims Commission, with which he was uniquely familiar, to set up a special three-judge court to hear a “friendly” suit between the Hopi and Navajo? The court could hear the case, decide the boundaries that each tribe was entitled to, and go out of business. Boyden assumed he would win and the Hopi would be free to lease. All it would take was an act of Congress. This was not as difficult as it might appear.
SENATOR GOLDWATER’S OFFICE
John Boyden arrived in Barry Goldwater’s office in 1956. Despite Goldwater’s conservative Republican politics and Boyden’s Democratic credentials—Boyden was a second-time Democratic candidate for governor of Utah—the two men got along. They were both westerners from the same class, prominent sons of prominent families, and about the same age. Boyden was a man with impressive legal credentials, an insider in the making of Indian law, and a man who craved the big stage. In addition, it was a period in the mid-1950s when another Utah senator and prominent Mormon, Arthur Watkins—the Republican chair of the Senate Indian Affairs Subcommittee—had succeeded in making termination of Indian tribes official government policy. Later viewed as an utterly shameful period in American Indian history, it was eventually repealed and the terminated tribes restored to federally recognized status, although many had lost their lands in the interim.*
Boyden presented his idea for introducing a bill that would create a special three-judge court to decide the boundaries within the 1882 Executive Order Reservation. What might have impressed Goldwater most about Boyden’s idea for the special court was his success in the Ute case. He also would have been aware of Boyden’s connections with Senator Watkins, the Mormon Church, Kennecott Copper, and Ernest Wilkinson’s law firm. Wilkinson, Cragun, and Barker was a center for one of the important Mormon networks in Washington, and the firm’s clients included the Mormon Church (before they had in-house counsel), Standard Oil of New Jersey, and Kennecott Utah Copper. Goldwater knew Kennecott well because he was supported by the mining interests in Arizona, and Kennecott, known for its intransigence in regard to labor issues, had a number of large copper mines and many labor troubles in Arizona. Wilkinson himself was well known in Washington because his firm specialized in land issues and hired former Interior Department attorneys (all Mormons) as staff. After success in the Ute case, Wilkinson’s firm went on to represent more Indian tribes than any other law firm.
As Wilkinson’s partner, Boyden and his associates in Salt Lake City had traveled to the Ute reservations, taken depositions, discovered old maps, found interpreters, researched correspondence between the Ute and Indian agents, dug around in the BIA archives, and managed the negotiations with three separate bands of the Ute Tribe. The presentation of research and historical correspondence was so detailed and extensive that one of the Justice Department attorneys on the losing side of the case said, “The amount of service and research performed by Wilkinson and his associates almost staggers our imagination. . . . I never saw anything like this in my life. I never expect to again.” Interestingly, Wilkinson, who recorded this quote in his nine-hundred-page autobiography, did not share any praise or credit. He never mentions Boyden’s firm, nor does he mention Felix Cohen’s role in drafting the Claims Commission legislation. By 1956 Wilkinson himself was back in Utah as president of Brigham Young University but still listed “of counsel” on the firm’s letterhead.
Boyden brought all this unique experience and a network of connections with him when he arrived in Goldwater’s office. Goldwater might have also been impressed that Boyden was able to pull together a tribal council among the notoriously fractious Hopi. To outsiders the Hopi are the “people of peace.” Among themselves they are known for many feuds and long-standing resentments and grievances.
THE MORMON CONNECTION
Although Senator Goldwater and attorney Boyden maintained that their bill was solely for “ justice for the Hopi” and adamantly denied that the bill had anything to do with mineral leasing, the real intent was inadvertently made clear by freshman congressman Stewart Udall, their cosponsor in the House. Udall, who had just been elected to Congress from Tucson, where he and his brother Mo had been in law practice together, added an “interim leasing clause” that provided for royalty moneys from mining or oil drilling to be put “in trust accounts” for the Hopi and Navajo while the special three-judge court was deciding the case. The vice president of the Valley National Bank of Phoenix wrote Udall to request three copies of his version of the bill and congratulate him for his initiative. “A number of us have wondered for some time why it would not be possible for the . . . Bureau of Indian Affairs to lease the Hopi Navajo disputed lands while the oil boom is [under way].”
“Dear Tom,” responded Udall, “I am enclosing a copy of my interim leasing amendment which is now pending before the committee. (Incidentally, Senator Goldwater’s bill passed the Senate last week in its original form without an interim leasing provision.)” Although the bill for the three-judge court passed the Senate, it did not pass the House. For one thing, US Attorney General William P. Rogers (later secretary of state) opposed the bill, saying there was no legal issue to be decided, all reservation boundaries were the responsibility of Congress, and that it was an improper use of a three-judge court. For another, individual Hopi argued against it and tried to enlist Senator Carl Hayden of Arizona on their behalf. Caleb Johnson, a graduate of the University of California who was on his way to Princeton Seminary, asked Senator Hayden to open an investigation about how John Boyden and the tribal council came to power. “We have two problems out here,” he wrote to the senator on March 5, 1957. “One is the Navajo and Hopi boundary issue. The other is the internal Hopi government problem. These are closely related.”
Dan Katchongva sent ano
ther letter to Senator Goldwater, protesting his bill for a “court test of the so-called conflicting claims of the Navajo and Hopi. . . . If this bill becomes law it will destroy our Hopi way of life, religion and land. It will surely destroy the land and life of the Navajo.”
The bill did not pass the first time around. But Goldwater and Udall introduced it again in 1958 without any mention of mineral leasing, and the second time it passed. Like a boat throwing off cargo to float free from a sand bar, the subsurface mineral wealth of Black Mesa was on its way to becoming electricity for Las Vegas, Phoenix, and Los Angeles. In 1959 Boyden and the Navajo counsel filed papers, the case was heard in 1961 (with the US Attorney’s Office appearing in opposition), and in 1962 the decision was handed down.
If the conflict had really been about establishing a boundary, it could have been settled. But because it was about mining, it forced other issues, such as water rights and access to the coal seam and the growing populations of Phoenix and Tucson. It turned out that John Boyden was representing the Hopi at the same time he was representing Peabody Coal and soon Kennecott Copper. In any other state but Utah, he would have been a candidate for disbarment. (The canon of legal ethics prohibits a lawyer from representing two sides in the same legal issue as a clear conflict of interest.) But from the point of view of the Mormon religion, Boyden was fulfilling his religious duty at the highest level. As a devout Mormon, John Boyden saw Indians through the prism of the Mormon faith.
When a reporter asked Boyden what he felt his greatest life accomplishment was, he answered, “Being a true friend of the Lamanites.” In this case, both friendship and Lamanite require definition in the context of the Mormon West.