Gallup Independent

Gallup, New Mexico

RECA COMPENSATION TIED TO SKIN TONE?

Attorneys claim Navajos are being unfairly compensated for past exposure to uranium

By Kathy Helms
Dine Bureau

TUBA CITY -- Divide and conquer. That's been the name of the game.

It's a game of high stakes, too. Namely, human sacrifice. But no more. The "grassroots giant" is awakening and is on bended knee. Soon, he's going to be standing. And when he does, the Navajo people will "unite under one banner" to create change for the Nation.

"That was a vision foretold generations ago, and we are fulfilling that vision," Norman Brown of Dine Bidziil (Navajo Strength) said Thursday afternoon following a status report on the Radiation Exposure Compensation Act (RECA). The meeting at Grayhills High School Auditorium was attended by uranium victims and their families, mostly elderlies.

Though they came to the meeting a bit beaten down, perhaps, their spirit has not been broken. Now, this relatively uneducated portion of the Navajo population has wizened up. And the key question is, can compensation be far behind?

Compensation disparities

Cora Phillips of the Office of Navajo Nation President Joe Shirley Jr. said regardless of which of the affected agencies she travels to, there is a continuous outcry from the people about the disparities in compensation for people of color as opposed to Anglo uranium victims.

"Among the Navajo, an estimated 18 percent of claims filed by radiation exposure victims are compensated. And yet, you have a Colorado law firm that's doing Anglo cases and they have a 96 percent compensable rate. So there is that extreme disparity. That is a strong message in itself that something is wrong, and it all goes back to the legislation," Phillips said.

Cultural injustices have been imposed upon the Navajo people. "A prime example of this is the proof of residency issue. As small children, they lived under their parents' grazing permit. As a child, you cannot get a grazing permit of your own because you are a child, so you have to count on your parents. But in this case, the Department of Justice does not want to honor that, so it results in denial of these cases," Phillips said.

While Anglos can turn to church rolls and club memberships for proof of residency, there is no roll call at traditional ceremonies and no certificates of completion awarded for spending a summer at Sheep Camp.

"That's where the reform amendments need to be made," Phillips said.

FUNDS DWINDLING

A recent report from the U.S. General Accounting Office indicated that RECA funds are "dwindling to the point where people might be issued IOUs again, so there's this sense of urgency now because the program, we understand, is going to shut down as of 2011," Phillips said.

"A very small percentage are getting compensated. In the meantime people are out there using whatever little resources they have been trying to get the necessary documents together, and in the end, it's like they've reached this dead end with nowhere else to go because of the laws that have been put in place," she said.

The final straw was when the federal government came out with a final rule this spring which stated "that all non-attorneys and Native American representatives are not permitted to submit claims as of April 22, 2004," meaning that advocates such as Phil Harrison of the Navajo Uranium Radiation Victims Committee was no longer able to assist cancer victims such as Lucy Todecheenie and Marie Tomchee in filing their claims for compensation.

By vastly reducing the number of victims' advocates who attempt to translate the facts of Navajo culture into Department of Justice legalese, the federal government is creating an even bigger backlog of cases on an already overburdened system. But it works nicely that way: The fewer cases approved, the less money the government has to shell out of an underfunded program to compensate victims, the more money it can put into a new round of nuclear weapons testing at Nevada Test Site while paying off uranium/radiation victims with IOUs. As of July, pending unpaid claims amounted to nearly $174 million.

THE CURE-ALL?

The only remedy at this time for Navajos is to turn to the winning law firm from Colorado. It's a gamble, of course. Sort of like a trip to the casino. But some are ready to hold their breath, pull the lever, and hope the spin doesn't stop on Coyote.

According to Phillips, members of the Colorado law firm will be working with Navajo case managers such as Harrison. "With their expertise and their advocacy, we're hoping that some of these cases will get compensated rather than getting declined left and right."

Jennifer H. McCall of the law firm of Killian, Guthro & Jenson of Grand Junction attended Thursday's meeting. The firm is naturally curious as to why the Navajo people are not being compensated and are anxious to help evaluate the RECA legislation and policies to see where it would be most feasible to make changes to benefit Navajo clients.

Their assistance is not free, of course. Under the 2000 RECA amendment, attorneys who research and submit RECA claims also must follow RECA regulations limiting them to 2 percent for filing an initial claim. However, they can take home 10 percent if they resubmit a claim prepared for their client by a previous contractor, and that client was denied.

Initially, RECA claimants can receive $100,000 in compensation from the Department of Justice (DOJ). However, under the 2000 amendment claimants can receive an additional $50,000 through the Department of Labor (DOL). The amendment also fixed attorneys' fees for processing EEOICPA claims at 2 percent, or $1,000 for the initial filing if the claim is successful. The attorney can collect an additional 10 percent for successfully appealing DOL decision.

Victims' advocates have turned to the Navajo Health and Social Services Committee and Arizona Rep. Rick Renzi, R-1st District, for assistance. Renzi hopes to bring all major players together in Washington in mid-September, sit them all down in the same room and work out a strategy they can follow.

Also, Phillips said, "There was a request put forth to the Health and Social Services Committee to do a strategic planning meeting and that strategic planning meeting will consist of this law firm from out of Colorado and hopefully some legal counsel from out of Navajo Nation Washington Office.

"Hopefully, we'll get the snowball rolling and keep the momentum going, pace it out very carefully, very strategically. You obviously need the support of Congress to get these proposed amendments under way," she said.

According to Harrison, the 2000 RECA final rule was published in the Federal Register this past April "after we started making noise. But there were some drastic changes in the provision. For example, where the Navajo Nation representatives were cut out of (filing) those claims, what do we do with claims that are backlogged? How do we do it where people will have due process in getting claims examined and getting them paid?

"Navajo uranium workers were shortchanged," Harrison said. "They were not properly informed about the benefits they have had such as insurance. Some people had bought stocks and they were never told about where their money was at; and then there were people that were never informed about the possible benefits through Workman's Compensation."

ONE VOICE

After being told to stop representing Navajos, Harrison began calling around to see which firms were working on compensation cases and wound up at Grand Junction. "We established a collaboration with them and they began to explore the possibilities of the Navajo claims." St. Mary's Hospital in Grand Junction is being looked at for medical screenings outside the government health system.

Also, historically, there have been several different individuals across the Navajo Nation working independently on victims' compensation cases. After what they see as inaction by tribal leaders and the Navajo Nation Council, the grass roots across Navajoland are speaking with one voice, the voice of "Navajo Strength."

"It's a trust issue," Dine Bidziil's Brown said afterward. "What I mean by that is that our people no longer trust the words that come out of our hogan in Window Rock. So what we are doing is we are taking that trust and that hope through our prayers and speaking on their behalf."