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August 31, 2022 News » Cover Story

Monumental Change 

After Obama, after Trump, the Biden chapter of the Bears Ears saga begins.

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U.S. BUREAU OF LAND MANAGEMENT
  • U.S. Bureau of Land Management

Analysis by Bill Keshlear

On May 10, 1869, crews working for the Central Pacific and Union Pacific railroads completed the nation's first transcontinental rail line at Promontory Summit in northern Utah—a historic achievement in the timeline of the United States' development and one that is indelibly etched into the psyche of the West's Indigenous peoples.

The story is expressed in many ways across Indian Country, perhaps most beautifully told through the traditional art of Navajo weavers. Many pieces—including some that are now priceless, museum-caliber heirlooms—depict locomotives chugging across the sage landscape, benignly interspersed among ancient symbols and motifs. The strands of wool are dyed from extracts of native plants and then threaded through a loom one at a time by an elder preserving a uniquely American art form.

A darker interpretation involves the dreams of spiritual leaders—of trains rumbling unstoppable through wildlands, destroying everything and everyone in its path.

"They tell a compelling story of adaptation, survival and change by the Navajo people," said Kim Ivey, a senior curator at Colonial Williamsburg in Virginia, quoted by the Virginia-Pilot in a story about an exhibit there on Navajo weavings. "The trains arrived in the 1880s, and it changed the Navajos' lives forever."

Both perspectives portend cultural displacement, even genocide. In one, trains and their passengers are newcomers, arriving or passing through from distant areas unknown.

In the other, they suggest an invasive species with the power to destroy an ancient way of life and the ecosystem it depends on. They're coming to drill for fossil fuel, dig for treasure, cut down trees and tromp around on life-sustaining plants and soil for their recreation, unwittingly destroying the remaining habitat that sustains some of America's most magnificent creatures. And they'll call it "progress."

Over the past year or so, the Biden administration has trumpeted its commitment to re-framing policy initiatives surrounding the government's fraught relationship with Native Americans, including management of the president's new version of the Bears Ears National Monument. In 2021, President Joe Biden jettisoned the monument's scaled-down version approved by his predecessor, Donald Trump. In addition, Biden restored—even expanded upon—President Obama's original 1.3 million-acre preserve.

And on June 18, officials with Biden's Bureau of Land Management and U.S. Forest Service, together with the leaders of tribes with ancestral ties to Bears Ears—the Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Ute Indian Tribe of the Uintah and Ouray Reservation and the Pueblo of Zuni—ceremonially adopted an intergovernmental cooperative agreement, suggesting that monument lands would be jointly managed by U.S. and tribal governments.

It was called "unprecedented," a publicly prominent next step—after Biden's restoration—to solicit and incorporate tribal points of view into federal management plans.

click to enlarge Interior Secretary Deb Haaland is the first Native American to hold a cabinet-level position in the U.S. government. - WIKICOMMONS
  • Wikicommons
  • Interior Secretary Deb Haaland is the first Native American to hold a cabinet-level position in the U.S. government.

The agreement represents "what true tribal co-management should look like," Interior Secretary Deb Haaland, the first Native American to serve as a cabinet secretary, said at the time, with tribes "sharing in the decisions and management plan with federal investments to supplement efforts. This is one step in how we honor our nation-to-nation relationships with tribes."

The agreement came several months after what was billed as the "White House Tribal Nations Summit." Biden—known affectionately as "Uncle Joe" to many Navajos—announced that the departments of Interior and Agriculture had created the "Tribal Homelands Initiative." And Haaland and Tom Vilsack, Agriculture secretary, formalized the concept with a directive from on high called the "Joint Secretarial Order on Fulfilling the Trust Responsibility to Indian Tribes in the Stewardship of Federal Lands and Water."

However, given pressures exerted at the 30,000-foot level by partisan politics and seemingly unresolvable cultural conflicts—among them RVers at the ground level who just want a flat space in a mountain meadow to escape for a week—it's an open question whether the federal lands-management bureaucracy has the capability to effectively take action on non-tribal, publicly held land in southeast Utah. Or anywhere else.

And adding fuel to the fire is the state of Utah. Republican leadership here has long chafed at the scale of federal land ownership within the Beehive State, and, in August, Utah filed suit against President Biden and top-level land managers in an effort to scuttle the president's expansion of the monument's boundaries—a long-predicted tit-for-tat following lawsuits in 2017 that challenged Trump's ability to shrink Obama's original designation.

Utah's litigation alleges that the Biden administration violated the Antiquities Act in expanding Bears Ears, as the act stipulates that protected areas be as small as possible, "compatible with proper care and management." A private law firm from Virginia, Consovoy McCarthy, has been hired to represent the state alongside government attorneys. Other clients of the firm include Donald Trump.

"These public lands and sacred sites are a stewardship that none of us take lightly," Utah's governor, lieutenant governor, state auditor, legislative leaders, congressional delegation and U.S. senators—all Republicans—said in a joint statement announcing the state's lawsuit. "The archeological, paleontological, religious, recreational and geologic values need to be harmonized and protected."

They continued: "Rather than guarding those resources, President Biden's unlawful designations place them all at greater risk. The vast size of the expanded Bears Ears and Grand Staircase-Escalante national monuments draws unmanageable visitation levels to these lands without providing any of the tools necessary to adequately conserve and protect these resources."

Cowboys and Capitalism
Historically, the BLM and Forest Service have been unable to contain the collateral damage that tourism and outdoor recreation has inflicted on nearby, once-pristine public land across the West.

BLM staffers and a citizen advisory panel, formally named the Bears Ears Monument Advisory Committee, met four times between June 2019 and June 2021 to discuss issues related to management of the monument. Virtually every exchange focused on damage to cultural artifacts, vegetation and geological formations and mitigation of that damage, caused mainly by campers.

The advisory panel did not recommend wholesale closure of the monument to so-called "dispersed" camping, which taps the appeal of sleeping outside of a formal, designated campground and finding a bit of solitude and wild beauty without the need for a reservation.

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These out-of-the-way spots in Bears Ears—and other public lands—don't come with the amenities of a developed campground, like water, toilets, picnic tables, bear boxes or garbage removal. Therein lies the rub.

These quotes, from the October 2020 meeting of the MAC, are representative:

But Christopher Ketcham, writing in This Land: How Cowboys, Capitalism and Corruption Are Ruining the American West, also points to numerous, recent instances in which the BLM backed down when faced with flagrant violations of environmental law by militant, anti-government extremists. Irreplaceable flora and fauna—supposedly protected by statute—have been destroyed.

A prominent example is Nevada rancher Cliven Bundy's armed standoff in 2014 with BLM over his refusal to pay grazing fees. It ended only when law enforcers withdrew. A bloodbath was averted, but Bundy continues to break the law with impunity. And at this point, nothing much has changed within the BLM under Biden's administration to stop the looting, grave robbing and vandalism of Bears Ears—a primary motivating force behind the monument's creation.

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A regime to protect tens of thousands of archeological artifacts, sacred to many Native Americans, and unique geological features located in southeast Utah is being tested. But given the ping-pong politics surrounding management of public lands in southeast Utah through the past three presidential administrations—and San Juan County Commission elections—can anything truly protect Bears Ears?

Anyone who has made the random discovery of 1,000-year-old pottery in the cranny of a red-rock cliff, or trekked up the sandstone bluffs inside or adjacent to Canyonlands National Park at sunset, or spent a deathly silent, crystalline night staring at the unobstructed canopy of creation knows the stakes.

(Editor's note: Multiple attempts to interview or receive comment from Tracy Stone-Manning, director of the BLM; Greg Sheehan, director of Utah BLM; Gary Torres, former BLM Canyon Country District director; and Nicollee Gaddis-Wyatt, now-Canyon Country District director, were not successful.)

Devil in the Details
At a hearing in March before the House Committee on Natural Resources, Charles F. Sams III, director of the National Park Service and a Cayuse and Walla Walla tribal member, outlined what the National Park Service (NPS) and its massive mothership, the Department of Interior, were doing to comply with the secretaries' directive to rethink their approaches and recognize that federal lands were previously owned and managed by Indian tribes.

"The secretary's order also directs agencies to increase opportunities for tribes to participate in their traditional stewardship of present-day federal lands and waters," Sams said in his testimony.

NPS and other land-management agencies under the Interior umbrella are "reviewing" the "full-range" of land management options, according to Sams, including the kind of formal co-management agreements that already exist between the BLM and the Forest Service in running Bears Ears and other federally protected spaces. Tribes have been pushing for that same level of shared oversight for a long time, without success.

But here's the catch: Management of each national park or monument (a "unit" in bureaucratese) is restricted by its enabling legislation.

Bears Ears National Monument, for example, was created using the authority of the Antiquities Act, a process that's become increasingly controversial because it dodges legislative scrutiny and buy-in. No public hearings are required; no congressional votes tallied; and no favor of local elected officials or residents to curry. Protection of public lands using the authority of the Antiquities Act requires only a presidential signature.

However, use of the 116-year-old act limits the scope of possible tribal involvement in monument management and erects obstacles to building trust among tribes and other stakeholders. FormerPresident Bill Clinton's unilateral decision in 1996 to create the Grand Staircase-Escalante National Monument remains politically toxic in Utah decades later.

A proposal approved by Congress—on the other hand—and signed into law by the president would be buffered from political turnover and would only be subject to constitutional review by appellate courts. And such an act of Congress could, in theory, grant a larger, formal role to tribal co-management (like, say, decision-making authority equal to that of the Forest Service or BLM).

That is likely why rhetoric from tribal activists and even Interior Secretary Haaland tend to conflate "cooperative management" with "co-management." According to Sams, the majority of NPS working relationships with tribal nations are collaborative or cooperative rather than being co-managed, which requires authorization through official, formal and legal agreements.

Operative phrases buried in Bears Ears proclamations, the monument's interim management plan and the cooperative agreement include things like needing "to obtain input" from tribes; "guidance and recommendations" from tribes; and to "rely upon [tribes] for recommendations."

The language makes clear that tribes play advisory roles, not governing ones. The federal government can (and does) heed or ignore tribal advice based on myriad factors, including politically and ideologically driven priorities, scientific findings with varying degrees of validity, byzantine administrative rules and bureaucratic interpretations of those rules, unfathomably baroque environmental regulations, special-interest lobbying and litigation risk.

But less-formal, cooperative management arrangements with tribal governments are voluntary and relatively common within the NPS, with about 80 currently in place, according to Sams. And many tribes choose not to participate.

There are currently only four units in the national park system that have full-blown, fully legal, co-management arrangements with tribes. They are Canyon de Chelly National Monument, located within the boundaries of the Navajo Nation in Arizona; Glacier Bay National Park and Preserve in Southeast Alaska; Grand Portage National Monument, within the boundaries of the Grand Portage Indian Reservation in northern Minnesota; and Big Cypress National Preserve in Florida.

Canyon de Chelly National Monument's unique enabling legislation preserves some land and mineral rights for the Navajo Nation. An agreement for cooperative management of Canyon de Chelly was negotiated and signed by the Navajo Nation president, NPS park superintendent and Bureau of Indian Affairs regional area director (BIA is an agency within Interior).

The process involved extensive and on-going tribal consultation and community involvement, according to Sams. It's far from over.

Time Immemorial
As mentioned above, Biden's proclamation in October resurrected and even expanded on Obama's original Bears Ears National Monument. A temporary management plan was put into place two months later. The interim plan guides policy decisions until a formal plan is adopted—probably two years out, according to BLM's timeline.

Biden's monument, according to BLM and Forest Service staff in Utah, mirrors Obama's in most ways and even Trump's to a certain extent—at least in the areas that remained protected by monument status after he shrank its footprint by roughly 85%.

And all three iterations of Bears Ears National Monument granted the five tribes a chance to offer policy guidance through creation of an entity called the Bears Ears Commission.

Biden, however, went a step further than his predecessors by granting tribes status a notch higher than myriad other stakeholders. It was demonstrated in an up-close-and-personal way at the formal ceremony in June, between high-level federal land managers and members of the tribal commission, to sign the cooperative management agreement.

Attending in the flesh were Tracy Stone-Manning, director of BLM, and Homer L. Wilkes, under-secretary for Natural Resources and Environment within the Agriculture department (Forest Service).

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"This is an important step as we move forward together to ensure that tribal expertise and traditional perspectives remain at the forefront of our joint decision-making for the Bears Ears National Monument," said Stone-Manning at the ceremony held just outside the monument in the White Mesa community of the Ute Mountain Ute Tribe.

No other stakeholder group has been granted similar status, a politically charged acknowledgment rooted in the fact that the five tribes consider the preserve sacred. Artifacts of their ancient ancestors—tens of thousands of items—remain scattered across the landscape, some remarkably intact and mostly unprotected despite being located within monument boundaries.

The tribes' de facto claims of ownership stretch across "time immemorial," using Haaland's phrase.

Deep within Biden's monument-founding documents lies verbiage that Gary Torres, former BLM Canyon Country District manager, referred to as "nuanced" changes in how Bears Ears would be managed during a briefing to members of the Monument Advisory Committee, or MAC.

According to Biden's proclamation, the BLM and Forest Service will prioritize protection of "objects" within the monument and "values" associated with the monument. That could affect outdoor recreation, and especially dispersed camping, which—according to staff comments to MAC members—has damaged vegetation and archaeological sites.

Other activities have exacerbated the problem, like popular ATV and off-road driving and climbing, whose practitioners often attempt to park as close as possible to favorite routes, regardless of possible damage to cultural sites. And the growing popularity of electricity-assisted mountain biking—particularly the fat-tired, high-torque variety—and gravel biking, currently legal on mostly forgotten mining roads, has opened up more remote parts of the backcountry to exploration, including areas of archaeological significance that have yet to be professionally surveyed.

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The agencies are in the process of identifying those "objects" requiring enhanced preservation. Kamran Zafar, an attorney with the nonprofit Grand Canyon Trust—which has contributed substantial financial and technical assistance to the creation of Bears Ears over the past few years—offered a comment in October 2020 to federal land managers that seemed to summarize Biden's current approach: "Cultural resources really need to be thought of, and any damaging activity should take a back seat."

Less significant perhaps—but nevertheless important as a possible new regulatory day dawning in Biden's Utah BLM and Forest Service—an employee of the Bears Ears Commission will work out of BLM's Monticello office, according to a BLM staffer. The embedded tribal representative would be in a position to communicate first-hand information on the inner workings of the bureaucracy.

No other interest group has been granted similar "fly-on-the-wall" status. Many journalists would make a pact with the devil for access to that kind of sanctum sanctorum within an opaque federal bureaucracy.

Keshlear is an editor and reporter who has worked at The Salt Lake Tribune, the Gazette-Journal in Nevada and the Missoulian in Montana. He has closely followed the creation of Bears Ears National Monument and is developing a book proposal exploring the political, environmental and cultural shifts amid this iconic American landscape.

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Bill Keshlear

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