Cropping Bears Ears
By Kat Moynihan.
On December 28, 2016, five Southwestern Native American tribes achieved a momentous victory in protecting their cultural patrimony. President Obama created, via presidential proclamation and through the power designated to the President by the Antiquities Act of 1906 (the “Act”), the Bears Ears National Monument, a 1.35-million-acre site that protected areas of historical and spiritual importance to the Navajo Nation, Hopi Tribe, Ute Mountain Ute Tribe, Pueblo of Zuni Tribe, and Ute Indian Tribe of Northern Utah (collectively known as the “Bear Ears Inter-Tribal Coalition,” “Tribes,” or “Coalition”). The Coalition was consulted during the creation of the monument, and was even appointed as co-manager of the site, along with the Bureau of Land Management and National Park Service. By the end of his two terms in office, President Obama has protected more land under the Antiquities Act than any other president, setting aside 88.3 million acres across 26 monuments, and adding 465.2 million acres to existing monuments.
However, the victory was short-lived. On December 4, 2017, President Donald Trump put forth his own proclamation to modify Bears Ears by eliminating 80% of the monument’s area. There was swift opposition from Native American tribes, environmental organizations, and recreation advocates. The Coalition, represented by the counsel from the Native American Rights Fund (Hopi, Pueblo Zuni, Ute Mountain Ute), the Navajo Nation Department of Justice (Navajo), and Fredericks Peebles & Morgan L.L.P. (Ute Indian), filed suit in the United States District Court for the District of Columbia, alleging that the President violated the Act, as it only authorizes the President to create monuments, not to eliminate or modify their parameters. On January 18, 2018, the federal government moved to change the venue to Utah District Court, which the Coalition has opposed.
According to the complaint, the Coalition seeks to protect the estimated 100,000 cultural and archaeological sites within Bears Ears’ boundaries, including gravesites and ancient cliff dwellings. The Coalition fears that, if federal protection is removed, there will be a surge in looting, vandalism, and grave-robbing. Bears Ears and its surrounding area is also considered sacred to the Tribes for a variety of reasons. For example, the area holds “historic Navajo hogans and sweat lodges, Ute tipi rings, and Navajo and Ute rock art sites. . . .”[i] Bears Ears is also the birthplace of Navajo Headman Manuelito, who led the resistance against Navajo removal to Bosque Redondo, New Mexico and fought for the treaty that granted the Navajo return to their historical lands. The Navajo also believe the two iconic buttes, shaped like a bear’s ears, are a “shrine that protects the [Navajo].”[ii] These lands are still used for ceremonies today, and the Navajo and the Ute tribes regularly use the land to “collect herbs and medicine, forage for food,  gather firewood for heating and ceremonial use, and to hunt game.”[iii]
The Antiquities Act
The Antiquities Act was signed into law on June 8, 1906, by President Theodore Roosevelt. While the Act was primarily created to stem the looting of Native American artifacts from archaeology sites, it would also cement Roosevelt’s reputation as a famed nature conservator.[iv] Under the Act, Congress authorizes the President to:
in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments . . . .[v]
However, these monuments (man-made or natural) must be “confined to the smallest area compatible with proper care and management of the objects to be protected.”[vi] Congress also retains the power to convert a national monument into a national park via an act of Congress.[vii] Typically, monuments are eventually converted into national parks. Since President Roosevelt’s tenure, more than fourteen presidents have designated 170 monuments. Use of the Act dropped off following the passage of the New Deal, which gave the National Park Service (“NPS”) the proper funding to carry out land conservation, and the passage of the Archaeological Resources Protection Act of 1979, which gave greater federal protection to archaeological sites.
Trump’s reduction of the protected area would not be the first time that a president has used his discretion to crop a national monument: according to the National Park Service, there are eighteen instances of presidents reducing or redrawing the boundaries of a national monument.[viii] For example, in 1909, Roosevelt created Mount Olympus National Monument in Washington. During World War I, President Wilson halved the 600,000-acre-monument[ix] to allow access to timber for the war effort (the timber industry had opposed the monument since its creation).[x] Then, President Franklin Delano Roosevelt reduced the Grand Canyon National Monument in 1940 to appease ranchers’ demands for grazing land,[xi] reduced the Craters of the Moon National Monument in 1941 to allow for the “transfer of a strip of highway,“[xii] and reduced the Wupatki National Monument in 1941 so a diversion dam could be constructed.[xiii] President Truman halved the Santa Rosa Island National Monument in 1945 to provide for lands to test guided missiles during World War II.[xiv] Additionally, President Eisenhower altered the size of the Glacier Bay National Monument[xv] in 1955, the Hovenweep National Monument[xvi] and the Great Sand Dunes National Monument[xvii] in 1956, and the Arches National Monument,[xviii] along with the Black Canyon of Gunnison National Monument,[xix] in 1960.
Whereas the spirit of the Antiquities Act has been generally praiseworthy, there are also instances of tension created between the President and the States as a result the President’s invocation of the Act’s power. Ultimately, states feel slighted, and believe the Act allows the President to bypass State representatives and throw state’s needs to the wind. For example, Franklin Delano Roosevelt drew the ire of Wyoming when he created the Jackson Hole Monument. Senator Edward Robertson described the designation as a “foul, sneaking Pearl Harbor blow,”[xx] ranchers ran a cattle drive through the monument in defiance of the National Park Service, and Congress passed a bill to veto the monument – which Roosevelt then vetoed. Wyoming also filed a lawsuit in the District Court of Wyoming against the superintendent of the National Park Service, alleging the monument’s creation was illegal.[xxi] However, the court dismissed the case, holding that it was “a controversy between the legislative and executive branches of the Government in which . . . the Court cannot interfere.”[xxii] When Jackson Hole was added to Grand Teton Park, it resulted in the only amendment to the Antiquities Act, banning the creation of new monuments in Wyoming.[xxiii] Similarly, President Carter, who set aside 56 million acres of land across seventeen sites in Alaska, faced a substantial amount of opposition from Alaskans. At the time, many Alaskans depended on mining and oil drilling for their livelihoods, and felt these industries would be threatened by losing undeveloped land.[xxiv] They responded with protests and even went as far as burning President Carter’s effigy.[xxv] When Congress passed the Alaska National Interest Lands Conservation Act was passed in 1980, a provision was included that barred use of the Antiquities Act to create substantial monuments in Alaska without Congress’ approval.
The Editing Process
On April 26, 2017, President Trump issued Executive Order 13792, which called for the Secretary of Interior Ryan Zinke to review all designations under the Antiquities Act made since January 1, 1996 with an area of more than 100,000 acres or where it is determined inadequate outreach and/or coordination with “State, tribal, and local officials and other relevant stakeholders” was done. Over a course of the year, in total, twenty-seven monuments were reviewed, and six were recommended for reduction. Among these six was Bears Ears, which, according to President Trump’s Presidential Proclamation Modifying Bears Ears National Monument, was considered “not limited to the smallest area compatible with the protection of the objects.” The Proclamation also declared that the majority of objects of scientific and historical importance in Bears Ears were sufficiently protected by preservation-related laws passed after the Antiquities Act. In place of the sprawling monument created by President Obama, President Trump has carved out two smaller monuments: Shash Jáa (211,983 acres) and Indian Creek (886, 477 acres). These cuts went into effect on February 2, 2018. President Trump has declared that the reduction was “necessary to restore state and local control.”[xxvi]
These new monuments, which represent 15% of the original Bears Ears Monument, have been formalized in H.R. 4532, sponsored by Representative John Curtis (R) of Utah. As of January 30, 2018, hearings have been held before the House Natural Resource Subcommittee on Federal Land. H.R. 4532 would create a seven-member Tribal Management Council for each monument, consisting of: an individual from the Department of the Interior or the Department of Agriculture; three members of the Navajo Nation; one member from the White Mesa Utes of the Ute Mountain Ute Tribe; and two members from the San Juan County, Utah, Board of Commissioners. There is no mention of the Hopi Tribe, the Zuni Tribe, or the Ute Indian Tribe. The bill also creates an Archaeological Resources Protection Unit for each monument that consists of nine members appointed by the Management Council, including:
(A) [f]ive individuals with expertise in preserving Tribal relics, artifacts, or other sacred Tribal sites and objects[;] (B) [o]ne individual with expertise in the preservation of archaeological resources in federally protected areas[;] (C) [o]ne individual with expertise in protecting scenic and natural resources[;] [o]ne individual representing a scientific or educational institution in the State of Utah[;] [and] [o]ne individual with historic preservation expertise in the State of Utah.
There is no requirement for a representative of affected Native American tribes to be on the Unit. The Unit’s role is purely advisory; they primarily make recommendations to the Management Council. Both the Management Council and the Protection Unit are guided by the Bears Ears Commission, which was established under President Obama’s proclamation that created the monument in 2016. Additionally, ten law enforcement personnel will be assigned to each monument by the Secretary of the Interior and the Secretary of Agriculture.
The Tribes have protested that H.R. 4532 provides only nominal protection and does not allow the Tribes to choose who would serve on the Management Council. Further, the bill “would nullify the tribes’ right to sue the federal government and render moot the other lawsuits defending Bears Ears.”[xxvii] Only one member of the Tribes has spoken in favor of the bill. During the House Committee hearings, Suzette Morris, of the Ute Mountain Ute Tribe and Vice President of the Stewards of San Juan County, spoke against the monument designation. She stated that it uses “Native American people and culture to promote [the] area,” and that the land was better protected when it was not popularized among tourists.[xxviii] However, this testimony was swiftly dismissed by Morris’ tribe. Leland Begay, associate general counsel for the Ute Mountain Ute Tribe, stated that Morris was “not an elected official and did not have official authorization” to speak for the Tribe.[xxix] Morris’ testimony caused further exasperation as the Tribes saw the “handpicking of an unelected tribal member that serves the agenda of anti-monument special interest groups . . . [as a] violation of the sovereign-to-sovereign relationship” between Native American tribes and the U.S. government, and a political ploy on behalf of “anti-monument special interest groups.”[xxx]
All In Favor
The reduction of Bears Ears has been plagued by claims that it was done in order to open the land to the exploitation of natural resources such as uranium, gas, coal, oil, and grazing lands. Environmental watchdog groups have accused the federal government of giving into lobbying efforts from the uranium industry (as led by Energy Fuels). Interior Secretary Ryan Zinke has stated that “there wasn’t one square inch [of land] removed from federal protection” and that reports of mining and drilling being the impulse behind the elimination are “nefarious and false.”[xxxi] Trump’s supporters have also pointed out that there is no oil or gas in Bears Ears, and that the price of uranium is so low there is no interest in opening new uranium mines.[xxxii]
However, internal government documents from the Department of the Interior speak to the contrary. The documents were obtained by the New York Times following a Freedom of Information lawsuit against the Interior Department in the United States District Court for the Southern District of New York in December 2017. These documents reveal efforts by the Trump administration to review President Obama’s creation of new monuments.[xxxiii] The review process began with an order to determine what natural resources (coal, gas, oil, grazing, and hunting) have been put off limits and the economic data related to those resources.[xxxiv] Specifically, information was requested about uranium mills, grazing, and hunting in or around Bears Ears.[xxxv]
It should not be forgotten that, in Utah, 67% of the land is federally owned public land, a fact that has chafed the state’s population.[xxxvi] Another 6% of the land is held as federal trust lands.[xxxvii] The State is allowed to use these lands to earn revenue, which is then directed into state institutions such as public schools and hospitals.[xxxviii] Primarily, this revenue is created by selling mineral rights, renting, and allowing for mining and drilling for natural resources.[xxxix] In a speech at Utah’s State Capitol, Trump declared that he was “restor[ing] the rights of this land to your citizens.”[xl]
The Legal Forecast
As the Hopi case proceeds, several factors remain uncertain. Professor Mark Squillace of Colorado Law School has noted that the court must determine what standard of review will be used, and whether the case should be resolved “on the administrative record made to support the President’s decisions, or [if the] court [should] hold an evidentiary hearing to ascertain whether the proclamations are consistent with the requirements of the law[.]”[xli]
There are some indications that President Obama’s designation will prevail. If the court follows the precedent set by the Wyoming District Court in Wyoming v. Franke, it will utilize a limited scope of review and let the designation stand.[xlii] Additionally, the Franke court noted that if it “found sufficient ‘evidence of experts and others as to . . . objects of historic and scientific interest’,” it would have to uphold the decision.[xliii] As stated above, there is a vast number of Native American artifacts within Bears Ears’ original boundaries. Beyond Native American artifacts, this past February archaeologists discovered a new site of dinosaur fossils, which spans 63 meters, and which has been described as “the world’s richest cache of Triassic period fossils.”[xliv]
Professor Squillace has noted that President Trump will argue that his authority to shrink monuments is derived from his predecessors who have taken similar actions. However, Professor Squillace argues that:
Presidents lack the authority to modify or revoke monuments decisions issued by their predecessors. The basic argument is straightforward. The Property Clause of the Constitution gives Congress plenary authority over public lands. While the Antiquities Act may delegate power to the President to “reserve” public lands as national monuments, the Supreme Court has made clear that delegations of congressional power must be construed narrowly. And because the Antiquities Act says nothing of the authority to modify or revoke a reservation once made, the statute is properly construed to grant “one-way” authority.[xlv]
Squillace, who specializes in natural resources law, also points to the Forest Service Organic Administration Act of 1897 and the Pickett Act of 1910, which authorized the president to withdraw public lands and specify that the president also has power to alter or eliminate that withdrawal.[xlvi] In 1976, the House Report on the final version of the Federal Land Policy and Management Act “specifically reserve[d] to the Congress the authority to modify and revoke withdrawals for national monuments created under the Antiquities Act.”[xlvii]
Meanwhile, the Bears Ears case has been consolidated with a similar case brought by the Natural Resources Defense Council, also before the District Court for the District of Columbia, and also alleging President Trump’s actions were in violation of the Antiquities Act.[xlviii] While the arguments outlined above hint at possible positions the court may take, it is impossible to predict which way the court may rule. However, the general concern for the environment, current changes in the EPA notwithstanding, seem more advanced than it has ever been, and is sure to give the courts a perspective that prior challenges to the Antiquities Act have not seen.
[i] Native American Connections, Bᴇᴀʀꜱ Eᴀʀꜱ Cᴏᴀʟ., http://bearsearscoalition.org/proposal-overview/ancestral-and-modern-day-land-users/ (last visited March 26, 2018).
[iv] From 1906 to 1909, Roosevelt created eighteen national monuments, which set aside over one million acres of land. Some of the more notable monuments include: Chaco Canyon in New Mexico (1907); the Grand Canyon in Arizona (1908); and Mount Olympus in Washington (1909).
[v] The Antiquities Act of 1906, 16 U.S.C. § 431-433 (1906).
[vii] The primary difference between a park and a monument lies in the reason for its establishment. Where the creation of a monument is dependent on the presence of scientific or historic artifacts, parks are set aside for public use based on the site’s scenic, recreational, and/or educational value.
[viii]Catherine Lucey & Darlene Superville, Trump Scales Back 2 National Monuments in Utah, Drawing Praise and Protests, Cʜɪ. Tʀɪʙᴜɴᴇ (Dec. 4, 2017, 10:40 PM) http://www.chicagotribune.com/news/nationworld/politics/ct-trump-utah-national-monuments-20171204-story.html.
[ix] Olympic: Historic Resource Study, Nᴀᴛ’ʟ Pᴀʀᴋ Sᴇʀᴠ., https://www.nps.gov/parkhistory/online_books/olym/hrs/appa.htm (last visited Apr. 8, 2018).
[x] In this case, President Wilson’s actions were met with widespread backlash, and Congress created the Olympic National Park in 1938 and expanded the protected area to nearly 900,000 acres.
[xi] Proclamation No. 2393, 3 C.FR. § 150 (1938-1943).
[xii] Craters of the Moon: Administrative History, Nᴀᴛ’ʟ Pᴀʀᴋ Sᴇʀᴠ., https://www.nps.gov/parkhistory/online_books/crmo/adhi/appb.htm (last visited Apr. 8, 2018).
[xiii] Proclamation No. 2454, 3 C.F.R. § 208 (1938-1943).
[xiv] Proclamation No. 2659, 3 C.F.R. § 63 (1943-1948).
[xv] Proclamation No. 3089, 3 C.F.R. § 36 (1954-1958).
[xvi] Proclamation No. 3132, 3 C.F.R. § 70 (1954-1958).
[xvii] Proclamation No. 3138, 3 C.F.R. § 73 (1954-1958).
[xviii] Proclamation No. 3360, 3 C.F.R. § 83 (1959-1963).
[xix] Proclamation No. 3344, 3 C.F.R. § 74 (1959-1963).
[xxiii] Mark Squillace, The Looming Battle Over the Antiquities Act, Hᴀʀᴠ. L. Rᴇᴠ. Bʟᴏɢ (Jan. 6, 2018), https://blog.harvardlawreview.org/the-looming-battle-over-the-antiquities-act/ (citing 54 U.S.C. § 320301(d)).
[xxiv] Carter Sets Aide 56 Million Acres of Alaska Lands, Tʜᴇ Wᴀꜱʜɪɴɢᴛᴏɴ Pᴏꜱᴛ (Dec. 2, 1978), https://www.washingtonpost.com/archive/politics/1978/12/02/carter-sets-aside-56-million-acres-of-alaska-lands/c3d130ae-22d2-47e6-aacc-1ba1b0ef0348/?utm_term=.a4f26d8fb2c2.
[xxvi]Matthew Renda, Environmentalists Decry Trump’s ‘Illegal’ Energy Plans for Public Lands, Cᴏᴜʀᴛʜᴏᴜꜱᴇ Nᴇᴡꜱ (Feb. 2, 2018), https://www.courthousenews.com/environmentalists-decry-trumps-illegal-energy-plans-for-public-lands/.
[xxvii] Terry Tempest Williams, From Utah’s Red Rock Desert, A Call for Protecting Our Public Lands, Yᴀʟᴇ Eɴᴠ’ᴛ 360 (Feb. 26, 2018), https://e360.yale.edu/features/from-utah-bears-ears-a-cry-for-protecting-our-public-lands-terry-tempest-williams.
[xxviii]David DeMille, Utah Republicans Advance Bill to Codify Elimination of Bears Ears Monument, Tʜᴇ Sᴘᴇᴄᴛʀᴜᴍ (Jan. 8, 2018, 12:18 PM), https://www.thespectrum.com/story/news/2018/01/09/utah-republicans-advance-bill-codify-elimination-bears-ears-national-monument/1016971001/.
[xxxi] Matthew Renda, Zinke Trades Barbs With Protestors Over Shrunken Monuments, Cᴏᴜʀᴛʜᴏᴜꜱᴇ Nᴇᴡꜱ (Feb. 9, 2018), https://www.courthousenews.com/zinke-trades-barbs-with-protesters-over-shrunken-monuments/.
[xxxii] Valerie Volcovici, A Modern Land Run? Trump Move Opens Utah to Mining Claims Under 1872 Law, Rᴇᴜᴛᴇʀꜱ (Jan, 21, 2018, 7:08 AM), https://www.reuters.com/article/us-usa-trump-utah-mining/a-modern-land-run-trump-move-opens-utah-to-mining-claims-under-1872-law-idUSKBN1FK1MA.
[xxxiii] Eric Lipton & Lisa Friedman, Oil Was Central in Decision to Shrink Bear Ears Monument, Emails Show, N.Y. Tɪᴍᴇꜱ (Mar. 2, 2018), https://www.nytimes.com/2018/03/02/climate/bears-ears-national-monument.html.
[xxxvi] Frequently Asked Questions, Sᴛ. ᴏꜰ Uᴛᴀʜ Sᴄʜ. ᴀɴᴅ Iɴꜱᴛɪᴛᴜᴛɪᴏɴᴀʟ Tʀ. Lᴀɴᴅꜱ Aᴅᴍɪɴ., https://trustlands.utah.gov/our-agency/faqs/#General (last visited Apr. 8, 2018).
[xxxix] What are Trust Lands?, Sᴛ. ᴏꜰ Uᴛᴀʜ Sᴄʜ. ᴀɴᴅ Iɴꜱᴛɪᴛᴜᴛɪᴏɴᴀʟ Tʀ. Lᴀɴᴅꜱ Aᴅᴍɪɴ., https://trustlands.utah.gov/our-agency/what-are-trust-lands/ (last visited Apr. 8, 2018).
[xl] Remarks by President Trump on Antiquities Act Designations, Tʜᴇ Wʜɪᴛᴇ Hᴏᴜꜱᴇ (Dec. 4, 2017), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-antiquities-act-designations/.
[xli] Squillace, supra note 22.
[xlii] Wyoming v. Franke, 58 F. Supp. 890, 896 (D. Wyo. 1945).
[xliii] Id. at 895-96.
[xliv] Pam Avery, Major Fossil Cache Found on Lands Cut from Bears Ears National Monument, Tʜᴇ Wɪʟᴅᴇʀɴᴇꜱꜱ Sᴏᴄ’ʏ (Feb. 22, 2018), https://wilderness.org/press-release/major-fossil-cache-found-lands-cut-bears-ears-national-monument.
[xlv] Squillace, supra note 22
[xlviii] Hopi Tribe et al v. Trump et al, PᴀᴄᴇʀMᴏɴɪᴛᴏʀ, https://www.pacermonitor.com/public/case/23151037/HOPI_TRIBE_et_al_v_TRUMP_et_al (last visited Apr. 8, 2018).
About the Author: Kat Moynihan is a Spring 2018 Legal Intern with the Center for Art Law. She is currently pursuing a dual degree at Rutgers University; she will earn her J.D. in May 2018 and her M.A. in Cultural Heritage and Preservation Studies in May 2019.
Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. Opinions expressed here are those of the author.