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Navajo landowners question BIA agreement with company
Tuesday, October 21, 2003

The Bureau of Indian Affairs is allowing a telecommunications company to move forward with an $11 million development deal without first compensating Navajo allottees for use of their land.

As part of an agreement signed in August, the BIA pledged to help Qwest Communications speed up installation of telephone service to homes on the Navajo Nation. Dozens of Navajo families have been waiting for telephones for more than two years, according to the company.

In order to begin work as soon as possible, Qwest is asking Navajo allottees for consent to use their land without first negotiating for compensation. Company representatives are approaching landowners and asking them to authorize construction even though the BIA has not provided them with an appraisal, or valuation, of their lands.

The approve-first, negotiate-later arrangement comes with the BIA's blessing. Elouise Chicharello, the BIA's director for the Navajo region, signed a memorandum of agreement (MOA) with Qwest that outlines the need for streamlined development.

"Time is of the essence for Qwest to begin construction, due to various funding limits, state-imposed deadlines, and other construction-related time constraints," the August 13 MOA states.

But the process has drawn objections from some Navajo landowners, who say they aren't being told enough about the deal to make an informed decision, and their advocates, who say the BIA's is shirking its trust responsibilities.

"I'm not opposed to telephone lines or development of any kind," said Ervin Chavez, president of an organization of Navajo landowners. "I just want the allottees to be given the most-valued price for their land."

Renee J. Woody is a life-long resident of the Navajo Nation whose family owns land affected by the development. She said some of her relatives have been asked to sign consent forms without being told how much their land is worth.

"I was surprised that this was going on," she said in an interview. "I've informed some of my family and some of them said they signed 2 or 3 years ago. They didn't know what they signed. I don't think a lot of people understand."

John Badal, president of Qwest New Mexico, signed the MOA for his company. In an interview, he said the deal makes business sense because it can take anywhere from 6 months to 2 years to negotiate for compensation, leaving those families who have asked for service in the cold.

"We can't wait to negotiate whether that negotiation will occur after the appraisal or before," he said. "We need to establish what the extent of the project will be and how much it's going to cost us. If we don't even know the route we're going to take, there is no way we can get to square one on this."

Qwest inherited a backlog of Navajo service requests dating back at least two years with the purchase of US West Communications. Badal said the company is following all applicable federal laws in obtaining consent from the landowners.

"We are having discussions with the BIA and the BIA is working to get federal appraisers to appraise the allotment land so that we can commence discussions with the same allotment owners to talk about compensation," he said.

Contacted at her office, Chicharello declined to comment directly about the MOA. Through a spokesperson, she said the BIA will retain final approval over any agreement between Qwest and Navajo allottees. Any landowners who have doubts about the deal need to speak up, she said through the spokesperson.

Keith Harper, a Native American Rights Fund (NARF) attorney handling a class action case on behalf of Indian landowners throughout the country, said Navajo allottees will suffer "irreparable harm" because BIA is not looking out for their best interests.

"The way I see it is that the problem stems from BIA's inability to do timely appraisals," he said yesterday. "That's the root of this problem. Now you've got a conflict between something that the Navajo community needs -- telephones -- and their rights as trust beneficiaries."

"But that conflict only arises because BIA has not lived up to its responsibility to do timely appraisals," he added. "Because if it had, you could go forward with development and not have to negotiate after the fact."

The arrangement has stirred tensions within the Navajo Nation in recent weeks. Navajo Nation President Joe Shirley Jr. signed the MOA although most of the land affected is under BIA and not tribal jurisdiction. A spokesperson did not return a request for a comment for this story.

Calvert Garcia, an aide to Shirley, helped arrange the deal as president of the Nageezi Chapter, which represents many of the landowners seeking telephone service. When contacted last week, he declined to comment for this story but held a meeting last Wednesday to respond to some of the concerns being raised. According to a story published Sunday in The Farmington Daily Times, he accused Chavez of trying to sabotage the deal for political gain.

Chavez is former president of the chapter but did not attend the meeting. He doesn't blame Shirley for his involvement. "He's been getting bad advice," he said. "With Elouise, there's no excuse," he said. "She knows the law, she knows the system so she shouldn't even be playing any role in this until negotiations have been done and appraisals of the land have been done."

A week after Chicharello signed the MOA, a court investigator for the Indian trust fund lawsuit released a report that uncovered numerous shortcomings with the appraisal process taking place in her region. Special master Alan Balaran found that oil and gas companies were not paying fair market value to Navajo allottees for use of their land.

Due to internal concerns over the way trust land is valued, the BIA no longer has direct authority over appraisals. Former assistant secretary Neal McCaleb in early 2002 signed away the function to the Office of Special Trustee (OST), which is currently overseen by Ross Swimmer, a Bush administration political appointee.

Although Swimmer worked for the Department of Interior at the time, he did not initiate the transfer, which was done under then-special trustee Tom Slonaker. However, Swimmer is currently considering giving up the appraisal function to a department-wide entity that was created at the end of last month. Swimmer is holding meetings October 27-30 in Las Vegas, Nevada, to obtain more input from tribal leaders about the proposal.

Alarmed with the way appraisals are handled, the plaintiffs in the trust fund lawsuit have been seeking testimony from Anson Baker, the former chief appraiser for the BIA's Navajo region, but attorneys for Secretary of Interior Gale Norton are resisting. Baker has since been transferred to the BIA region serving the Pacific Northwest.

Chavez wrote a letter to Chicharello last week, asking her to obtain appraisals for the land affected by the development. He said yesterday that he has not received a response.

Woody said she wants the BIA, the Navajo Nation and Qwest to be more forthcoming with information about the arrangement. "For our generation, I think we need to get more [involved]," she said.

Special Master Report:
SITE VISIT REPORT OF THE SPECIAL MASTER TO THE OFFICE OF APPRAISAL SERVICES IN GALLUP, NEW MEXICO AND THE BUREAU OF INDIAN AFFAIRS NAVAJO REALTY OFFICE IN WINDOW ROCK, ARIZONA (August 20, 2003)

Relevant Links:
Indian Trust: Cobell v. Norton - http://www.indiantrust.com
Navajo Nation - http://www.navajo.org
Office of Special Trustee - http://www.ost.doi.gov