La Jicarita News - Community Advocacy for Northern New Mexico

Martin Luther King III came to Truchas as part of his 50-community tour to listen to what people had to say about poverty. It was an important event, not just because of the subject but because of what it symbolized: communities of color connected in their struggle to find parity. King put it this way: "Our challenge is finding ways for all of us to experience the American Dream. We're spending a trillion dollars in Iraq. Hundreds of thousands are dying for a useless war. The only way out is for Americans to find the will. We have the heart."

Several themes emerged in the ensuing conversation. The first, expressed by both Pueblo members and Hispano land grant activists, was the need to recognize that northern New Mexico is "one large community". Johnny Chavez, president of the Santa Cruz Land Grant, told how his grandmother used to travel to Pueblo feast days and stay for a week. "We have to unite with the Pueblos and heal the divide between Natives and Hispanos."

The second theme was the question of appropriate economic development and leveraging community capacity. Several participants lamented the fact that many norteño communities, in transition from land-based economies-agriculture and forestry-to wage labor jobs outside the community, are experiencing an epidemic of drug use. Albert Cata of Okay Owingeh told King that even when there is local economic development, "the people at the top are getting the gravy, it's not going down to the people who really need it." The conversation segued into a discussion about the impact that Los Alamos National Laboratory (LANL) has on norteño communities. Cata pointed out that it has been the primary labor drain in the communities, taking people off the land -"Our orchards and fields are dying"-and providing them with menial or technical jobs that are vulnerable to the Lab's funding uncertainties. Several people addressed the fact that LANL needs to reinvest in the communities and contribute to their long-term health, not the nuclear industry.

One young man, Antonio Archuleta, an economic planner, pointed out that natives lack the educational skills to qualify for the professional jobs at LANL. A young woman responded that perhaps one of the reasons so many of her generation don't go to college-only 10% of her graduating class in Albuquerque's South Valley continued their education beyond high school-is because the curriculum fails to reflect the diversity of our New Mexico communities. But many of those who are going to college-and they were well represented in the room-are leaving their rural backgrounds only long enough to get an education and return to their communities-not LANL-as regional planners, sociologists, historians, and journalists who recognize the importance of education but continue to value the land-based culture experienced by their parents and grandparents. They, hopefully, are the future.

Editorial: Chinks in LANL's Armor?

By Kay Matthews

Almost every day there's an article in one of the New Mexico dailies dealing with Los Alamos National Laboratory (LANL): security leaks; the U.S. House of Representatives threatening to cut off funding for more nuclear warheads; Senators Domenici and Bingaman promising full funding in the Senate; the New Mexico Environment Department complaining that LANL hasn't fulfilled its clean-up promises and that there is contamination in the Rio Grande; a press release that a coalition of groups is preparing to sue the Lab over violations of the Clean Water Act; that the Buckman Diversion Final Environmental Impact Statement is inadequate because it failed to analyze potential contaminants in the Rio Grande; and former workers keep getting rejected by the Department of Energy for their claims that they suffered radiation poisoning at the Lab. For the first time there seem to be significant cracks in the armor that surrounds this laboratory of mass destruction. Let's take a look at all these issues and see where the crack may be the widest and the Lab most vulnerable.

Funding

Congressional funding is critical to the Lab's existence, of course, but New Mexico's congressional delegation has been out in full force pressing for sustained funding for the nuclear weapons program. Several weeks ago a House of Representatives subcommittee recommended reducing weapons-related production by $396 million at LANL, Sandia National Laboratory, and Lawrence Livermore National Laboratory in California, citing concerns about the lack of policy with regards to weapons production and security breaches. The committee recommended continued funding for research on energy and other nonproliferation programs at the Lab. Unfortunately, New Mexico Representative Tom Udall, whose district includes LANL, pushed for full funding for the weapons program: Stockpile Stewardship (maintaining the current stockpile of nuclear weapons), Reliable Replacement Warhead program (plutonium pit development, or triggers for nuclear bombs), and construction of the Chemistry and Metallurgy Facility. While Udall has previously questioned the need to produce new nuclear weapons designed by the Reliable Replacement Warhead program (the design contract for which was recently awarded to Lawrence Livermore), when push came to shove, his support of full funding for LANL was based on politics.

On the other side of Capitol Hill, New Mexico senators Jeff Bingaman and Pete Domenici celebrated a Senate subcommittee recommendation to increase weapons funding for the three labs by $213 million. Domenici has always been the Lab's head cheerleader; through his efforts New Mexico is the third largest nuclear arsenal in the world. Bingaman, whose role in the delegation is assistant cheerleader, has always supported continued funding for the Lab, including nuclear weapons maintenance and production. The two houses of Congress must now draft a joint funding bill, and the anti-nuclear community needs to lobby hard for reduced weapons funding.

Radiological Contamination

On May 18, 2007, the New Mexico Environment Department issued a press release identifying radiological contamination in sediment along the Rio Grande from past operations at LANL. According to NMED Secretary Ron Curry, "Since the Cerro Grande fire, elevated levels of contaminants continue to flow from the Pajarito Plateau into the Rio Grande during floods. LANL must take actions to reduce and control the movement of contaminated sediments from lab boundaries." These radionuclides-plutonium, strontium, and cesium-were released into the plateau canyons in the early years of lab operations and have been washed downstream into the Rio Grande by regular flooding. After the Cerro Grande fire, that flow was accelerated as flooding from barren watersheds caused erosion of streambanks, which exposed old LANL contaminants and carried them to the river. The NMED recommended that the Lab install more weirs (dams) to capture contaminated sediment. The department noted that weirs will not be able to stop all contamination from spreading and recommended that LANL "implement a notification system to alert Santa Fe water operators" when water from contaminated canyons is flowing so the city can temporarily stop drawing water from the Rio Grande.

Buckman Direct Diversion

That brings us to the issue of the proposed Buckman Direct Diversion project, which will divert water from the Rio Grande (three miles downstream from where Route 4 crosses the river at the Otowi Bridge near Pojoaque) into a system of pipes to service the city and county of Santa Fe and Las Campanas. This project, which will cost approximately $145 million to build and $8 million annually to operate, will be diverting water below the locations where contaminates flow from Los Alamos into the Rio Grande.

The Final Environmental Impact Statement(FEIS) for the Buckman Water Diversion Project, issued by the U.S. Forest Service and Bureau of Land Management (the diversion project is located on these federal lands) failed to analyze concerns about contaminants, claiming that would be "speculative." In comments to the Draft Environmental Impact Statement the NMED requested that the Forest Service and BLM "review, consider and incorporate the findings and conclusions found" in NMED reports "documenting the highest levels of plutonium leaving the LANL site since the 1950s and 1960s through storm water events in the Pueblo/Los Alamos Canyon system, which discharges to the Rio Grande above the diversion site." The Forest Service and BLM responded that the NMED and Department of Energy (DOE) "recommended" that environmental restoration would help prevent erosion in the canyons. Unfortunately, the Forest Service and BLM never asked if the recommendations had been implemented: they haven't.

In other comments to the FEIS, several of the pueblos in the Aamodt adjudication addressed the issue of San Juan/Chama project water, which will supply most of the water for the Buckman Direct Diversion (5,605 afy). There is no guarantee that there will be a sufficient supply if drought conditions continue or if some of that water is allocated to the Aamodt settlement.

At a recent meeting with city and county officials, Concerned Citizens for Nuclear Safety (CCNS) Executive Director Joni Arends asked that they be "proactive" in dealing with the possibility of contamination from LANL: "Whenever local governments get involved in the process" of watching what DOE does, the agency becomes more responsive."

Pending Lawsuit

The contamination that Arends was talking about is not just radionuclides: NMED and LANL itself list nitrates, fluoride, 1,4-dioxane, high explosives, mercury, PCBs, perchlorate, selenium, hexavalent chromium, neptunium, americium, cesium, and cobalt as pollutants present at various sites. Pueblo Canyon does not meet water quality standards for gross alpha, selenium, and mercury. Mortandad, Water, Los Alamos, and Guaje canyons are polluted with gross alpha and selenium. Sandia Canyon is polluted with PCB-1254 and PCB-1260. In 2006 Buckman Well 1 had plutonium 238. That same year the NMED issued its first ever "do not eat" fish advisory for the Rio Grande and Cochiti and Abiquiu reservoirs because of PCB contamination.

On March 1, 2005 LANL and the NMED signed a consent order to address groundwater contaminants, toxics, explosives, nitrate and perchlorate. The order called for "fence-to fence" clean-up by 2015 of more than 1,405 sites at LANL. Since then NMED has assessed LANL $240,000 in fines for not meeting that schedule. Then, in 2007 the DOE cut $55 million from the Lab's clean-up budget. Senator Domenici now says the clean-up order should be amended because of the budget shortfall. But according to Ron Curry, "Those initial penalties and fines that have been levied against the Lab have nothing to do with the shortfall, [but] everything to do with management and management's attitude."

In addition to dragging its feet regarding clean-up schedules, LANL has also been negligent in obtaining accurate information in its monitoring wells. According to CCNS and other watchdog groups, the Lab's current Draft Site-Wide Environmental Impact Statement indicates traces of radionuclide contamination in drinking water samples from Los Alamos and Santa Fe County wells. The watchdog groups have consistently criticized the Lab for the lack of a reliable monitoring system to produce representative water samples as required under DOE regulations. The regional aquifer below LANL provides 100% of the drinking water for Los Alamos County residents and 60% of the recharge from the Buckman Wellfield comes from the Pajarito Plateau.

Communities for Clear Water, a coalition of groups tired of all the delays, recently filed a Notice of Intent to Sue the DOE and LANL for violations of the Clean Water Act: failure to conduct adequate monitoring; failure to report violations; failure to have pollution control measures in place; failure to comply with water quality standards; and unauthorized discharges. The coalition, a diverse group of organizations including the New Mexico Acequia Association and Tewa Women United, plans to file the lawsuit this summer.

Environmental Justice

As La Jicarita News has previously reported, the National Institute for Occupational Safety and Health (NIOSH) has granted Special Exposure Cohort (SEC) status to DOE workers who have contracted one or more of 22 designated cancers. SEC status entitles LANL employees who worked for the DOE at least 250 days between the years 1943 through 1975 financial compensation and medical benefits without proving how much radiation they were exposed to. The 1975 cutoff was predicated on the presumption that subsequent to 1975 LANL kept accurate records of contamination levels that could provide reliable information in determining whether employees' cancer was exposure related.

Many former LANL employees and their advocates feel that the 1975 cutoff is arbitrary and that the Lab doesn't have reliable exposure records before the 1990s.

The Health and Human Services Secretary recently announced that he has the authority to expand the SEC status at his discretion. Dr. Helen Merritt, who has been advocating for the expansion of this designation, told La Jicarita, "Because of the lack of guarantee that the Department of Labor and NIOSH will do the right thing [expand the current SEC to include employees up to the 1990s], a new SEC will still need to be filed to include years from 1975 forward to insure that the most LANL-worker claimants are covered for the broadest time period possible." She urged current and former LANL employees and others concerned about this issue to contact the Governor's office (www.governor.state.nm.us) to ask when it will open an office to help employees pursue their claims. Dr. Merritt noted that the state legislature has already allocated funds for the office, but the state has yet to move forward.

Radioactivity Surrounding LANL

Just before La Jicarita went to print the Government Accountability Project, a national watchdog group, published a study revealing that elevated and potentially harmful levels of radioactivity are present in environmental samples collected in the area around LANL. Eighty environmental and indoor samples taken from homes, farm fields, plants, vacuum cleaners, next to roads, in a park, and in local businesses were collected last November. Results of the analyses for strontium-90, plutonium and uranium isotopes, total radioactivity, and alpha and beta activity show that dusts and offsite biological materials are a source of radiation exposure to residents of the Los Alamos area. These radionuclides are man-made and most likely were generated at the Lab.

Seven of the eight samples with the highest radiation levels were dusts found from inside homes and offices. Dust is more easily breathed into the lungs. A dust sample from the White Rock office of the NMED was the highest of the entire study set and could mean exposure of over five times the annual permissible off-site dose allowed by the Environmental Protection Agency. Residential dusts from Picuris Pueblo, 42 miles away from the Lab, and San Ildefonso Pueblo were among the more elevated radiation levels in the samples studied (strontium-90). Three of the test sites near LANL exceeded state standards for plutonium 239/240. In downtown Los Alamos, soils in publicly-accessible areas were found to have the highest plutonium levels of the entire study sample set-more than 200 times the state standard.

LANL's response to the report was that the radionuclides are "naturally occurring" or the result of "old nuclear weapons tests." At a press conference in Santa Fe where the results were announced, Joni Arends of CCNS said, "These findings support our position that clean-up at LANL needs to become the priority, not expanded nuclear weapons production."

Walking with the Llamas

Leaving Edge Habitat in Las Trampas Canyon for a walk in the mountains

Happy Birthday, Chellis

Treaty of Guadalupe Hidalgo: After 150 Years The Federal Government Remains in Denial

By Mark Schiller

Chapter 4 of the General Accounting Office (GAO) report on unresolved issues associated with the adjudication of Spanish and Mexican community land grant claims by the federal government devotes 15 pages to refuting the assertion made by members of the land grant community that the United States government had a "fiduciary duty" to protect community grants after they were confirmed. The report concedes that "the vast majority of confirmed acreage has been lost" but suggests that this loss occurred "through voluntary actions of the communities themselves; contingency fee agreements with heirs' attorneys; partitioning suits . . . and tax foreclosures," for which the government bore no responsibility. The report also acknowledges that the government has a "[fiduciary] relationship with the Pueblo Indians in New Mexico on the basis of specific legislation, and so has special obligations to protect the Pueblos' community land grant property." This raises two significant questions: 1) What was the basis for the government establishing a protective relationship with the Pueblos; and 2) Should that relationship have been extended to the Indo-Hispano community land grants as well?

Black's Law Dictionary defines fiduciary relationship as "A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships-such as trustee-beneficiary, guardian-ward . . . -require the highest duty of care [and] . . . usually arise ... when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first . . . ." In an article entitled "Treaties of Conquest" in the New Mexico Law Review Professor Christine Klein traces the origin of the government's fiduciary obligation to Native Americans to an 1831 Supreme Court case, Cherokee Nation v. Georgia, in which Chief Justice John Marshall ruled that tribes were "domestic dependant nations" whose relationship to the federal government "resembles that of a ward to his guardian." In an 1877 decision, Beecher v. Wetherby, the Supreme Court ruled that in dealing with Native Americans "the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race."

In other words, the government's fiduciary responsibility to Native Americans was predicated on a racist belief in the superiority of the Anglo-American race; a belief that, in point of fact, rationalized and fueled the expansionist frenzy that became known as "Manifest Destiny." The United States wasn't conquering and dispossessing native people during the Indian and the Mexican-American Wars, but rather, as Andrew Jackson said, "extending the area of freedom" by exposing ignorant, dark-skinned heathens and papists to the "enlightened" institutions of American democracy.

Professor Klein goes on to explain, " . . . the trust duty has been a double edged sword. [A]lthough it has spawned numerous doctrines favorable to Indian tribes, the trust theory has been used to justify the sweeping exercise of federal authority over tribal affairs," much of which, obviously, has negatively affected Native American communities. Regardless of these negative consequences, however, the government's fiduciary obligation has kept Native American land grants in New Mexico largely intact and the question remains: did the federal government have the same duty to protect Indo-Hispano community land grants after they were confirmed?

Bearing in mind what we've noted about the origins of the Native American trust obligation, let's examine some examples of what representatives of the government and the popular media had to say about the Indo-Hispano population of New Mexico after the Mexican-American War.

Charles Bent, the first territorial governor of New Mexico, stated: "There is no stability in these people, they have no opinion of thare [sic] own, they are entirely governed by the powers that be, they are without exception the most servile people that can be imagined. They are Completely at the will of those in Power . . . let those be so Ignorant as may be, they dair [sic] not express an opinion to that of thar [sic] rules, they are [not] fit to be free people, they should be ruled by others than themselves."

Senator John C. Calhoun of South Carolina (also former Vice President and Secretary of State) stated: "Ours is the government of the white man. The great misfortune of what was formerly Spanish America, is to be traced to the fatal error of placing the colored race on an equality with the white. . . . Are we to associate with ourselves as equals, companions, and fellow citizens, the Indians and mixed races of Mexico? I would consider such association as degrading to ourselves and fatal to our institutions."

Colonel Edwin Vose Sumner, the territorial military commander of New Mexico had this to say: "The New Mexicans are thoroughly debased and totally incapable of self government, and there is no latent quality about them that can ever make them respectable. They have more Indian blood than Spanish, and in some respects are below the Pueblo Indians, for they are not as honest or as industrious."

George W. Julian, the New Mexico Surveyor General between 1885-1889, who was personally responsible for the defeat of many legitimate Spanish and Mexican land claims, referred to the "stagnation of the natives" and the "prevailing tendency here [New Mexico] to degenerate into barbarism."

Racism directed towards Mexicans in the popular press was even more blatant. Comments included, "an imbecile, pusillanimous race of men, . . . unfit to control the destinies of that beautiful country"; "There are no people on the continent of America, whether civilized or uncivilized, . . . more miserable in condition or despicable in morals than the mongrel race inhabiting New Mexico"; "a sickening mixture, consisting of such a conglomeration of Negroes and Rancheroes, Mestizoes and Indians." Even the poet Walt Whitman, who was the editor of the Brooklyn Daily Eagle during the Mexican-American War and was later known as a champion of the common man, opined, "What has miserable, inefficient Mexico . . . to do with the great mission of peopling the New World with a noble race?"

It's particularly significant that these commentaries note with derision that the inhabitants of New Mexico are a "mongrel race" with "more Indian blood than Spanish." This is corroborated by Josiah Gregg's 1844 account of the Santa Fe Trail, entitled The Commerce of the Prairies in which he states: ". . . the entire population of New Mexico, including Pueblo Indians, cannot be set down, according to the best estimates I have been able to obtain, at more than 70,000 souls. These may be divided as follows: white creoles, say 1,000; Mestizos [a person of mixed Spanish and Native American ancestry] 59,000; and Pueblos, 10,000."

Moreover, the strategy behind creating community land grants, formalized in the mid-eighteenth century by Spanish governor Tomás Vélez Cachupín, was to place the landless, unskilled Mestizo and Genizaro populations* (which the Spanish elites claimed were overcrowding the villas of Santa Fe, Santa Cruz de la Cañada [Española], and Albuquerque) on the frontiers of the Spanish empire to, in the words of Vélez Cachupín, "serve as a barrier against the entrance [of hostile nomadic Indians] to despoil the interior settlements." According to historian Malcolm Ebright, who has written extensively about community land grants, "Vélez Cachupín realized that the old system of making land grants primarily to elite members of society was not conducive to frontier defense. The elites could not always be relied on to defend their land to the death." People of Native American ancestry (Mestizos and Genízaros), on the other hand, could.

So, despite being characterized by government representatives and the popular media as "thoroughly debased and totally incapable of self government, . . . [with] no latent quality about them that can ever make them respectable;" and despite these same sources acknowledging their Native American ancestry, the GAO report asserts: ". . . the Treaty of Guadalupe Hidalgo did not create a fiduciary relationship between the United States and non-Pueblo community land grantees." While it's true that the Treaty did not specifically stipulate a formal fiduciary obligation to Indo-Hispano communities, it seems obvious that, based upon the criteria the government used to establish such a relationship with recognized Native American communities, the same protections should have been extended to Indo-Hispanio community land grants. They were the victims of the same racist presumptions; they should have been the beneficiaries of the same paternalistic protections.

Be that as it may, the Treaty did specifically include several fiduciary-type provisions and the next question is whether the government actually implemented them. Article VIII of the Treaty of Guadalupe Hidalgo stipulates two important protections: 1) "Mexicans now established in territories previously belonging to Mexico . . . shall be free to continue where they now reside . . . retaining the property which they possess in the said territories . . . without their being subjected, on this account, to any contribution, tax, or charge whatever [emphasis added]"; and 2) "In the said territories, property of every kind, now belonging to Mexicans ... shall be inviolably respected [emphasis added]. The present owners, the heirs of these, and all Mexicans who may hereafter acquire said property by contract, shall enjoy with respect to it guarantees equally ample as if the same belonged to citizens of the United States."

The 1891 Congressional Act that established the Court of Private Land Claims, which adjudicated the vast majority of Spanish and Mexican land claims in New Mexico (282), clearly violated the first of those protections by placing an unjust and essentially impossible financial and legal burden on community land grant claimants. By mandating the presence of the United States Attorney, who systematically opposed every claim and placed the burden of proof on the claimants, it forced them, in violation of the Treaty provision that stipulated claimants would not be subject to "any contribution, tax, or charge whatever," to employ lawyers. These lawyers, moreover, (as exemplified by the notorious Thomas B. Catron) almost invariably placed their own interests before those of their clients. Working on a contingency basis they forced their clients, who were part of a rural subsistence economy, to barter away large portions of their grants (a quarter to a third of the grant common lands was a standard fee) in order to obtain representation. Also bear in mind that most community land grant claimants were illiterate farmers and ranchers who spoke only Spanish, knew little of the world outside their communities, and were completely unfamiliar with the American form of jurisprudence.

Not surprisingly, most of these lawyers then became land speculators, using their contingency percentage of the grant to force a partition of the common lands-a state authorized process that privatized what clearly should have been protected as community-owned property. Once partitioned, the entire grant was subject to sale or auction; sometimes, as was the case in the Las Trampas community grant, without the knowledge or consent of the grant heirs. As a result, the common lands of more than twenty community grants were lost to partition suits.

A second process through which the common lands were lost was delinquent taxes. Although the Treaty exempted claimants from taxation, the federal government refused to protect community land grants from state and county taxation laws after their confirmations, and a number of grants, including the largest community grant confirmed by the Court of Private Land Claims (the Sevilleta, just north of Socorro) were lost because of delinquent taxes.

Incredibly, the GAO report rationalizes the federal government's refusal to protect confirmed community land grants from loss due to partition suits and delinquent taxes (as the Treaty clearly mandated it must do) by suggesting that the provision of the Treaty which states that the federal government's protection of Mexican land owners shall be ". . . equally ample as if the same belonged to citizens of the United States," meant that Mexican landowners were subject to the same "responsibilities that all U.S. citizens had, which include the obligation to pay property taxes and be subject to foreclosure for nonpayment, as well as being subject to partition suits . . . and any other legal mechanism potentially resulting in loss of real property ownership." This is the kind of absurd legal maneuvering the government employed throughout the GAO report to deflect responsibility for the loss of millions of acres of legitimate claims.

The federal government clearly did not live up to its Treaty obligations and denied Indo-Hispano community land grant claimants the fiduciary protections it extended to their blood relatives in federally recognized Native American communities. Moreover, the historical record demonstrates that it willfully and maliciously imposed legal and financial burdens upon legitimate claimants it knew would result in the loss of their grants. In closing, let me cite one nineteenth century United States senator's outraged acknowledgement of that fact. During the debate over the bill to create the Court of Private Land Claims Senator Preston B. Plumb of Kansas remarked that claimants would be "wiped out in the payment of lawyers' fees . . . [and] a mortgage put upon [their] entire future. That is the treatment we propose to mete out to those people who became citizens by no will of their own, and whom we contracted to protect in all the rights which they had under the laws of Mexico. We have no right, I submit, to impose upon them this expensive proceeding, nor any expensive proceeding for the purpose of enabling them to acquire title to the land which Mexico would have given them and had given them practically without cost."

New Mexico Legal Services, with support from the state legislature and Rio Arriba County, is currently working on a response to the GAO report that will demonstrate what actually happened to community land grants in New Mexico as a result of unjust federal policies.

*Genízaro is a generic term the Spanish applied to people of Native American descent formerly held in servitude by the Spanish who, more or less, adopted the colonists' language and way of life. The communities of Abiquiu, Belen and Socorro were entirely composed of Genízaro settlers, while other community land grants such as the San Miguel del Vado specifically mentioned Genízaro settlers in their grant documents.