Protecting Bears Ears National Monument

Attorney: Natalie A. Landreth, Matthew L. Campbell

President Trump’s action on December 4, 2017, to revoke and replace the Bears Ears National Monument is not only an attack on the five sovereign nations with deep ties to the Bears Ears region, it is a complete violation of the separation of powers enshrined in our Constitution. No president has ever revoked and replaced a national monument before because it is not legal to do so. Only Congress may alter a monument. In light of this blatant violation of law, the Native American Rights Fund, representing the Hopi Tribe, Pueblo of Zuni, and Ute Mountain Ute Tribe filed a lawsuit today to protect Bears Ears. (Download the complaint filed December 4, 2017.)

Five tribes—Hopi Tribe, Navajo Nation, Pueblo of Zuni, Ute Indian Tribe, and Ute Mountain Ute Tribe—led the effort to establish the Bears Ears National Monument, an area still used for cultural and religious purposes. Increased looting of the estimated 100,000 plus structures, sites, and objects within every reach of the monument dictated the need for protections in the form of a monument designation.

According to NARF Staff Attorney Matthew Campbell, “Bears Ears is one of the most important places for Indian Country, and that is why Indian Country came together to advocate for this important place. Trump’s attack on Bears Ears is an attack on all of us, and we will fight to protect it.”

NARF Staff Attorney Natalie Landreth said “The Administration is not telling the truth. The Bears Ears monument as created by President Obama preserved hunting, fishing, gathering and grazing rights, and protected these incredible lands from widespread looting and oil, gas and mineral development.” No matter what the President said today, his action does the opposite: by its own terms, in 60 days the revoked lands are open to “entry, location, selection, sale” and “disposition under all laws relating to mineral and geothermal leasing” and “location, entry and patent under mining laws.” Landreth continued, “this is taking public lands that belong to the American people and selling to the highest bidder, there is just no other way to understand it.”

This latest action follows on the heels of the Administration’s other actions against Tribes: (1) issuing the permit to the Dakota Access Pipeline, (2) issuing the permit to the Keystone XL, and (3) revoking the Executive Order to protect the Bering Sea on April 28th. Tribes vigorously opposed all of these efforts. The Administration uses the term “tribal sovereignty” but clearly does not understand what that means.

Background:

Rising from the center of the southeastern Utah landscape and visible from every direction are twin buttes so distinctive that in each of the native languages of the region their name is the same: Hoon’Naqvut, Shash Jáa, Kwiyagatu Nukavachi, Ansh An Lashokdiwe, or “Bears Ears.” For hundreds of generations, native peoples lived in the surrounding deep sandstone canyons, desert mesas, and meadow mountaintops, which constitute one of the densest and most significant cultural landscapes in the United States. Abundant rock art, ancient cliff dwellings, ceremonial sites, and countless other artifacts provide an extraordinary archaeological and cultural record that is important to us all, but most notably the land is profoundly sacred to many Native American tribes, including the Ute Mountain Ute Tribe, Navajo Nation, Ute Indian Tribe of the Uintah Ouray, Hopi Nation, and Zuni Tribe. – Presidential Proclamation – Establishment of the Bears Ears National Monument (Dec. 28, 2016)

Bears Ears at Sunset. Photo credit: Tim Peterson.

Bears Ears at Sunset. Photo credit: Tim Peterson.

Bears Ears has been home to Native peoples since time immemorial, and is cherished by Native peoples for its cultural, spiritual, and archaeological importance. Our presence, much in evidence today, covered the whole region and is manifested in migration routes, ancient roads, great houses, villages, granaries, hogans, wickiups, sweat lodges, corrals, petroglyphs and pictographs, tipi rings, and shade houses. Bears Ears contains hundreds of thousands of objects of historic and scientific importance, many traditional cultural properties, and many sacred sites.

Tribes in the region continue to use the Bears Ears region to collect plants, minerals, objects, and water for religious and cultural ceremonies and medicinal purposes. Native people hunt, fish, and gather within Bears Ears, and they provide offerings and conduct ceremonies on the land. In fact, Bears Ears is so culturally and spiritually significant that some ceremonies use items that can only be harvested from Bears Ears. Bears Ears is in every way a home to the region’s Native people.

Sadly, as they began planning to protect this landscape to which they hold such a deep connection, many Native Americans in the area also expressed a fear that speaking out about the significance of the land would lead to another loss – something else taken away from Native people. However, doing nothing was not an option. Looting, vandalism, and development were well underway. The desecration of these lands already was happening. Something had to be done to protect what was left.

In 2010, the grassroots nonprofit organization, Utah Diné Bikéyah (UDB) was formed to help coordinate the Bears Ears Proposal, which sought protections for the Bears Ears region. UDB spent the next several years developing a comprehensive cultural mapping of the area. Using that information, detailed maps were prepared to show why 1.9 million acres should be set aside as a cultural landscape. Their work showed that the Bears Ears landscape is one discrete unit, bound together in numerous ways, and blending perfectly with other protected federal and tribal lands.

Around the same time, more tribes in the region began to express their support the Bears Ears Proposal. The Hopi sent a letter of support, the Ute Mountain Ute Tribe, the Ute Indian Tribe, the Hualapai Tribal Council, the Pueblo Council of Governors, and others expressed support for the Bears Ears Proposal and the protection of the sacred landscape. And, in late 2014, after a series of town hall meetings and open houses, the Bears Ears proposal won 64% of support from San Juan County residents. The San Juan County Commissioners, however, chose to adopt an alternative proposal that received less than 1% of support.

In January 2015, the San Juan County commissioners refused to work with UDB. So, tribal representatives contacted Utah Congressmen Bishop and Chafetz, explained their exclusion, and requested to be included in Representative Bishop’s ongoing Public Land Initiative. Subsequently, in February, the San Juan County Commissioners did agree to a series of meeting with the Navajo Nation, Ute Mountain Ute Tribe, and UDB. However, only one month later, the San Juan Commissioners urged the Utah State Legislature to pass HB 3931, which undermined the Bears Ears proposal by designating large areas of the region as “Energy Zones” that would be fast-tracked for grazing, energy, and mineral development. Although the meetings between the county and Tribes did continue, they did not produce any results. And, for the final meeting, tribal representatives were told that they did not need to attend because the county commissioners did not require any further information from them. A final proposal was adopted by the county commissioners in August 2015, without input from the Tribes.

Seals of the tribes participating in the Bears Ears Intertribal CoalitionHaving been completely frozen out of the local land management process, the Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Pueblo of Zuni, and Ute Indian Tribe, formally united to create the historic Bears Ears Inter-Tribal Coalition to protect and preserve the homeland area they all care so deeply about. This was the first time that a coalition of sovereign, Native tribes had worked together for land protections. The Coalition proposed a National Monument designation for 1.9 million acres of ancestral land. With more than 100,000 archaeological sites, 1.9 million acres of land, and only one full-time law enforcement officer, the area represented the country’s most significant unprotected cultural landscape.

Photo of Bears Ears Gathering, Summer 2016.

Bears Ears Gathering, Summer 2016.

In January 2016, Congressman Bishop released his Public Land Initiative (PLI) that included protection for 1.39 million acres of Bears Ears. While it did include land protections, it did not include tribal management of the area, which was a key tenet of the tribe’s Bears Ears Proposal. The Bears Ears Inter-Tribal Coalition did not support the PLI for several reasons, but one of the reasons was that the PLI Bill would have taken Ute tribal land and given it to the state of Utah. The Bears Ears Inter-Tribal Coalition continued to petition for their Bears Ears Proposal, and, in July 2016, federal officials, including Secretary of Interior Sally Jewell, met with Utah Governor Herbert’s office and made an official visit to the Bears Ears region. During that visit, Jewell attended a public meeting to hear comments from local residents. At that meeting, thousands of people attended, and more than 50 people commented. A majority of attendees spoke in favor of the Bears Ears designation.

In December 2016, Congress adjourned without voting on Bishop’s PLI. With this lack of legislative action, President Obama released his Bears Ears National Monument proclamation on December 28, 2016. The form of Obama’s monument was a compromise between Bishop’s Public Land Initiative and the Coalition’s Bears Ears Proposal. At 1.35 million acres, the monument’s boundaries were closely aligned to those of the PLI, but the proclamation also included a management plan that empowered tribal leaders to provide guidance and recommendations on care of their ancestral lands. The designation was the culmination of local activism, coordinated outreach, and collaborative land-use management.

Pictographs. Photo credit: Jonathan Bailey.

Pictographs. Photo credit: Jonathan Bailey.

President Obama proclaimed the Monument pursuant to his authority under the Antiquities Act, just as all presidents since Theodore Roosevelt had established national monuments. It was the culmination of more than six years of active effort on the part of five Native nations, local tribal people, and their allies to obtain protections for a region that is a sacred source of spiritual traditions and place of origin.

On April 26, 2017, President Trump attacked this important designation. Trump signed an executive order directing Interior Secretary Ryan Zinke to conduct a review of the Bears Ears National Monument to determine if it was created without “public outreach and proper coordination.” However, the suggestion that the monument’s designation lacked outreach and coordination is disingenuous. The Bears Ears National Monument was created after years of advocacy and many public meetings in the region and in Washington, DC. The effort to protect Bears Ears was very long, very public, and very robust.

That lengthy process over many years, sits in stark contrast to Secretary Zinke’s cursory 3-month review that introduced no new facts or analysis and completely ignored public sentiment. On August 24, 2017, Zinke submitted to the White House recommendations to shrink monuments, including Bears Ears. Despite Zinke’s claim to be giving the people their voice back, his recommendation to shrink the monuments ignored an outpouring of public support for Bears Ears and other monuments. More than 95% of comments received by the Department of the Interior supported keeping the national monuments, including 65% of comments from Utah residents. It did not matter. The only voices that were heard were those calling for increased development, increased exploitation, and reduced protections for a national treasure.

Now, President Trump sits with Zinke’s recommendations in hand. However, the recommendations are pointless. Although Trump has stated that he will shrink the Monument, he does not have the authority to take such action. Under the Antiquities Act, the president may create national monuments. That is all. He or she may not diminish or revoke existing monuments—only Congress has that ability. Beginning with Theodore Roosevelt, Presidents have designated more than one hundred monuments throughout our country. No President has ever previously sought to abolish one by Executive Order because the Antiquities Act does not authorize the President to do so. If this unprecedented and unlawful action is allowed, the 129 national monuments across the United States will be at risk. The historic and cherished national monument system will be destabilized. Congress clearly did not intend for that result. It enacted the Antiquities Act to preserve America’s historic and scientific heritage for the benefit of current and future generations. Congress reserved to itself the authority to revoke or modify those monuments, and granted the President only the power to create them. The Native American Rights Fund (NARF) stands ready to defend that legal reality. NARF represents three of the five tribes in the Inter-Tribal Coalition—the Hopi Tribe, Pueblo of Zuni, and Ute Mountain Ute Tribe.

Hands Off Bears Ears - Link to donation form.

Currently, members of Congress are trying to push through legislation to give the President the authority he seeks, ignoring standard legislative procedure as they maneuver bills through without comment or debate. If the diminishment or abolishment of the Bears Ears National Monument is allowed to proceed, the Bears Ears area will be subject to the devastating damage of oil and gas drilling, uranium and potash mining, mineral exploration, uncontrolled off-road vehicle use, widespread vandalism and looting, and grave robbing. Furthermore, invaluable archaeological, paleontological, and faunal information will be lost to science and history. However, NARF is ready to fight for the Native nations who have spent years to protect their sacred, ancestral lands and the millions of people who declared their support for our national monuments. We will not allow the rights of our Native nations and our local people to be willfully pushed to the side for the benefit of corporate interests. We will stand firm for justice. Donate now to help protect Bears Ears National Monument.

 

Read More: Promote Native American Human Rights