Native American tribes worked for decades to get the U.S. government to designate an area in southeastern Utah as a national monument. The hard work paid off in late 2016 when President Barack Obama approved 1.3 million acres in San Juan County to be the Bears Ears National Monument.
With the stroke of a pen, President Donald Trump thumbed his nose at the tribes by signing a proclamation Monday afternoon that undid protections for 85 percent of the 1.35-million-acre Bears Ears National Monument. Trump also signed a proclamation that cuts by almost 46 percent the 1.9 million acres of the Grand Staircase-Escalante National Monument in Utah. President Bill Clinton designated the Grand Staircase-Escalante a national monument in 1996.
Immediately after Trump signed the Bears Ears proclamation, the Navajo Nation, along with four other tribes, announced they will collectively be filing a lawsuit against the administration. “The decision to reduce the size of the Monument is being made with no tribal consultation. The Navajo Nation will defend Bears Ears. The reduction in the size of the Monument leaves us no choice but to litigate this decision,” Navajo National President Russell Begaye said in a statement Monday.
In his speech in Salt Lake City, Trump said he made the decision to drastically reduce the size of the two national monuments after consulting with the Utah congressional delegation and the state’s governor. The president did not mention any consultations with Native Americans, who represent 50 percent of San Juan County, where the Bears Ears National Monument is located. Local Navajos in San Juan County, however, held town hall meetings where 98 percent of the Native Americans voted to keep existing protections for Bears Ears National Monument in place.
“This is a sad day for indigenous people and for America. However, we are resilient and refuse to allow President Trump’s unlawful decision to discourage us,” Navajo Nation Vice President Jonathan Nez said. “We will continue to fight in honor of our ancestral warriors who fought for our way of life, for our culture and for our land too.”
Tribes had sought protection for the Bears Ears after witnessing the looting of grave sites, irreparable harm to rock carvings by vandalism, sacred places torn up by off-road-vehicle use, and damage to a unique landscape. The creation of the Bears Ears National Monument “was due in large part to the looting and theft of Native American artifacts,” Natalie Landreth, an attorney with the Native American Rights Fund, said Friday during a media conference call.
The Bears Ears National Monument has one of the highest concentrations of cultural and archaeological sites in the nation, according to the Center for Western Priorities. The Grand Staircase-Escalante National Monument has been described as a “treasure trove” for paleontology that provides scientists a look at ancient environments of the American West. Paleontologists have discovered 25 unique dinosaur species. Only six percent of Grand Staircase-Escalante has been surveyed by paleontologists so far, the environmental group said.
The five tribes that comprise the Bears Ears Intertribal Coalition — the Navajo, Hopi, Zuni, Ute, and Ute Mountain Ute — “have historical differences and don’t typically ally,” explained Ethel Branch, attorney general for the Navajo Nation. But on the issue of Bears Ears, the tribes united to protect the area from further destruction.
“It is unique in this day and age” for the tribes to come together in support of creating Bears Ears, Shaun Chapoose, business committee member of the Ute Indian Tribe and a member of the Bears Ears Inter-Tribal Coalition, told ThinkProgress.
“The Ute and the Navajo are traditional enemies. The Hopi and the Navajo are traditional enemies. We have a tumultuous relationship,” Chapoose said. “But for this particular issue, we put aside our differences because we all have a vested interest as far as the cultural significance of the artifacts and the other things located in Bears Ears. It’s in all of our best interest to work hand in hand.”
The Bears Ears National Monument was designated by Obama after years of discussions and meetings with tribes, stakeholders, local government leaders, and community members. However, in his speech, Trump described his action as fulfilling the desires of Native Americans. “We have seen how this tragic federal overreach prevents many Native Americans from having their rightful voice over the sacred land where they practice their most important ancestral and religious traditions,” the president said in his speech.
The lawsuit filed by the tribes does not automatically put on hold plans by the Trump administration to reduce the size of the monument. The tribes would need to get injunctive relief from a court to immediately stop work on reducing the size of the monument, Landreth said.
What Trump plans to do with Bears Ears represents a “revoke and replace” action that would undo the Bears Ears designation and replace it with a radically different configuration. “From a policy perspective, a revoke and replace is a far more serious, far more unprecedented,” Landreth said.
Native American tribes contend that the president doesn’t have the legal authority to shrink the size of a national monument under the Antiquities Act of 1906. Under the act, Congress delegated authority to the president to preserve and declare national monuments. The Antiquities Act does not give the president authority to modify or shrink national monuments. Congress reserved that authority for itself.
In 1976, Congress passed the Federal Land Policy and Management Act, a law that stated that Congress would grant authority to the president only the rights that have been expressly delegated in terms of management of federal lands. In other words, the law gave president authority to establish a monument under the Antiquities Act but not rescind or substantially reduce a site.
Earlier this year, Trump directed Interior Secretary Ryan Zinke to review national monuments of a certain size that had been designed since 1996. In his recommendations to the president, Zinke called for major reductions in the size of the Bears Ears and the Grand Staircase-Escalante national monuments.
Some Navajo in Utah oppose the monument, claiming it cuts off access for traditional religious ceremonies, gathering of medicinal herbs, wood harvesting, and hunting. But Chapoose said it was disingenuous for Trump to state that Native Americans view the designation of Bears Ears as federal overreach. In fact, Bears Ears is the only national monument that was designated in response to a petition by Native Americans, he noted.
In their legal fight against the Trump administration, the Navajo Nation is represented by the Navajo Nation Department of Justice; the Hopi Tribe, Pueblo of Zuni, and Ute Mountain Ute Tribes are represented by the Native American Rights Fund; and Ute Indian Tribe is represented by Fredericks Peebles & Morgan LLP.