May 01, 2018

The unlawful reduction of Bears Ears National Monument: An executive overreach

Ethel Branch and Daniel Cordalis

At the end of 2016, President Obama designated the 1.35 million-acre Bears Ears National Monument (Monument) in southeast Utah using his Antiquities Act authority, a power delegated by Congress to allow the president to protect this nation’s unique historical resources. President Trump recently attempted to flip that power on its head, issuing a proclamation to revoke and replace the Monument, stripping 85 percent of its lands of the enhanced protections that came with Monument designation. This exposed many of our historical, cultural, and spiritual resources to threats of destruction and defilement. The language of the Antiquities Act and subsequent congressional statements in other public land statutes make it clear that the president does not have the power to revoke, shrink, or otherwise modify previous monument designations and confirms that President Trump’s attempt is unlawful.

 

Bears Ears is important to Navajo and other Indian Nations

The Bears Ears region has been home to Native peoples since time immemorial. Bears Ears contains over a hundred thousand objects of historic and scientific importance, many traditional cultural properties, and many sacred sites. To the Navajo people, Bears Ears holds special spiritual and historical significance. We believe that the towering spires in the Valley of the Gods are Navajo warriors frozen in stone and that the Bears Ears peaks are the top of the dismembered head of a bear that stands guard to Changing Bear Woman. Many traditional Navajo ceremonies, practiced since time immemorial, continue to take place only in the Bears Ears region. The White Canyon area of Bears Ears was a place of refuge in the summer of 1864 when Colonel Kit Carson marched over 9,000 Navajos at gunpoint 350 miles to Fort Sumner, New Mexico, as part of his scorched earth campaign against our people. Many Navajos evaded defeat and escaped removal by hiding in the Bears Ears region. Relics of this time are still found there. Those who were captured and survived the Long Walk were held as prisoners of war at Bosque Redondo until our leaders negotiated the release and return of our people to our homelands pursuant to our Treaty of 1868, which turns 150 years old this year. Upon release, many of our people returned to Bears Ears, which remained their home until recent times.

Designation of the monument and the tribal management role

In a showing of strength and unity of purpose, five tribes—the Navajo Nation, Hopi Tribe, Ute Mountain Ute Tribe, Zuni Tribe, and the Ute Indian Tribe—allied to form the Bears Ears Inter-Tribal Coalition to advocate for permanent protections of the Bears Ears region’s cultural and natural resources. We achieved many, but not all, of our objectives in President Obama’s 2016 designation. Critically, in that designation, our tribes secured a truly meaningful role in the Monument’s management through the establishment of the Bears Ears Commission (Commission), a tribal management body comprised of representatives chosen by each of our five nations. The Commission’s role is to ensure that the resources we need protected will, in fact, be protected. The Commission is charged with providing management recommendations directly to the Interior and Agriculture secretaries, a process that will also consider input from state and local stakeholders. This management structure reflects the unique history of the tribes in the Bears Ears region and honors the constitutionally defined government-to-government relationship between Indian tribes and the federal government. We look forward to the Commission continuing its work once the courts confirm the invalidity of President Trump’s proclamation.

The Tribes’ legal challenge

In December 2017, President Trump issued a proclamation attempting to revoke and replace the 1.35 million-acre monument with two smaller monuments, totaling just over 200,000 acres; in other words, reducing the monument to 15 percent of its original size. His proclamation also added a Utah county official to the Commission. More tellingly, Trump’s proclamation diminished the Commission’s voice—our collective tribal, pre-constitutional sovereign voice—by placing it on par with that of ordinary citizens and stakeholder groups.

Immediately after issuing his proclamation, our five tribes sued President Trump and his administration over the president’s unlawful revocation. The Antiquities Act confers only the power to declare national monuments—it is silent on altering or revoking them. Congress was clearly aware of this omission; it was an intentional and deliberate limitation of the authority Congress delegated to the president. And when it later passed the 1976 Federal Land Policy and Management Act, Congress reported that the act “would also specifically reserve to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.” H.R. Rep. No. 94-1163, at 9 (1976).

The designation of the Bears Ears National Monument was never about protecting remote special interests at the expense of local stakeholders. The designation was about respecting the interests and resources within a sacred landscape for all people into the future, including the tribes that have lived and used these lands since time immemorial. We know now that President Trump’s attempt to modify the monument was, in fact, done to support increased energy development in the area, a practice that undermines and threatens the original purpose of the designation. For tribes, his action shows that this administration does not respect the critical and unique federal-tribal relationship and the government’s role as trustee to Indian tribes, and we believe the federal courts will reject his attempt to revoke the Monument designation that went every length to honor the voice of tribes in protecting our historic, cultural, and religious patrimony.

 

Further reading

The missing piece: Presidential action on monuments highlights congressional abdication of responsibility

Bears Ears National Monument: Unprecedented surveys of boundary lines and executive authority

 

Ethel Branch and Daniel Cordalis

Ethel Branch is the Navajo Nation Attorney General. Daniel Cordalis is a Navajo tribal member and solo law practitioner that represents Indian tribes on natural resources and environmental matters.