Manataka American Indian Council

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Monumental Decisions to Protect Ancestral Lands

Friends Committee on National Legislation -- A Quaker Lobby in the Public Interest


View of Bears Ears, South Eastern Utah – Hartmann/photo in Salt Lake Tribune, August 6, 2015

In Southern Utah, there’s a 1.9 million acre area that encompasses wide-open vistas, steep slopes, and deep caves and more than 100,000 archaeological sites. This is Bears Ears – named for the shape of two buttes in the area – and it is the ancestral home of at least thirteen Native American tribes. The area offers hiking, biking, camping and other opportunities, and it is open to all members of the public.

Unfortunately, this deeply historical area is virtually unprotected. Over the past generation some burial grounds have been disturbed and some hogans, sweat lodges, and corrals have been burned. One ranger reports that artifacts are disappearing very rapidly, as visitors take away “souvenirs” of their hikes. Archeologists report evidence of vandalized petroglyphs and cliff dwellings. Two federal rangers are the only employees stationed in this vast area to inform visitors that it is illegal to take artifacts from the site, and to keep them from vandalizing petroglyphs, caves, or other archeological sites.

In 2015, after many years of effort to protect these sites, an intertribal coalition – comprised of leaders from Hopi, Navajo, Uintah and Ouray Ute, Ute Mountain, and Zuni – formed around a specific proposal. The coalition is asking the president to designate and protect Bears Ears as a national monument, to be co-managed by the five tribes.

Although there’s strong support among tribal members and local residents for the proposal, there’s not complete unity. Some tribal members worry that placing the land under federal protection will restrict their access to traditional ceremonial sites, limit their ability to gather wood or traditional medicinal herbs, and prevent hunting. Some worry that a designation as a national monument will bring more tourists, change the feel of the land and open it to more desecration. Supporters believe that the proposal would protect these rights, and the sacred sites as well.

Hope for a Decision. Interior Secretary Sally Jewell visited Bears Ears and the surrounding lands for four days this month, becoming familiar with the topography and the archeological and spiritual richness of the area. She spoke to – and heard from – both supporters and opponents. Jewell commented that she saw the consensus behind the discord. All of the speakers want the same outcome – protection of Bears Ears for coming generations. By the time Jewell left the area, she said that the President would make a decision about designating a Bears Ears national monument by the end of this year.

Interior Secretary Sally Jewell hikes through Bears Ears

A Long Road. Although the Intertribal Coalition launched the formal proposal just last year, their effort to protect Bears Ears is certainly not new. They’ve been working tirelessly on their proposal for many years, even before the coalition was formed. In 1968 Bobby Kennedy visited the nearby town of Bluff to speak with Navajo leaders during his presidential campaign. One man in the intertribal coalition recalls a Navajo elder telling Kennedy then that Bears Ears needed to be protected. Proponents have taken their ideas and requests to the state and to county officials, without success.

Since 2011, the inter-tribal coalition (and its predecessors) has held eight Town Hall Meetings, interviewed and surveyed thousands of people, gathered more than 15,000 statements of support, held five annual gatherings of Tribes at Bears Ears to discuss land protection, and obtained resolutions of support from 26 tribes. The coalition believes that a collaborative management arrangement including the tribes and the federal government will yield a rich combination of the “wisdom of traditional stewardship” with the best of federal land management.

Under the national monument proposal, Bears Ears would remain open to the public, but the National Park Service would be able to offer more staff and resources to protect the area. Recreational uses of all kinds – even including All Terrain Vehicles – would continue. The roads that go through the area would remain open, but no new roads would be built. Holders of mining permits would be able to continue to mine, but no new permits would be issued. Traditional uses by native peoples would be given the highest priority, but no one would be excluded, unless a person was violating the laws protecting the place.

Legislative remedies have also been attempted. Utah’s former Senator Bennet had worked on a proposal for a time, and Utah’s current Representatives Rob Bishop and Jason Chaffetz have been talking about a “public lands initiative” over the last few years, which would offer a compromise among business, recreational and cultural interests. This legislation was introduced just before Congress left for recess last week – it is unlikely that there will be time for it to pass in the 114th Congress. The intertribal coalition sees the congressional proposal as offering too little protection from commercial development.

Political Potholes. Meanwhile back in Washington D.C., some members of Congress have expressed opposition to the designation of “any more” national monuments, expressing a belief that President Obama holds some kind of record for designating acres of land as monuments.

Actually, the current President has declared a total of 4 million acres as national monuments, compared to President Jimmy Carter who designated 56 million acres, and President Bill Clinton who designated 5.75 million acres. Presidents have also declared marine areas as national monuments, and there, President Obama may hold a record, just edging out President George W. Bush’s previously held record. President Obama’s marine declarations cover 261 million acres, compared to President Bush’s 219 million acres.

Copper Profits v. Sacred Sites, Round 4

In 2014, Congress approved a National Defense Authorization Act that included a provision that couldn’t pass congressional processes on its own. This is not an unusual occurrence; members of Congress often try to attach small, specific bills to the “coattails” of a “must pass” bill, such as a bill on National Defense.

This provision, however, had been defeated in the House four times. It had been withdrawn from consideration on the floor of the House because it did not have the votes to pass. The provision allowed the transfer of a portion of the Tonto Forest in Arizona known as Oak Flat to a copper mining company, over the strong objection of every tribe in Arizona and a number of national allies. See FCNL’s earlier chapters in this saga, in December 2014, June 2015 and July 2015.

Oak Flat encompasses traditional sacred sites honored by five tribes in the area, in particular by the San Carlos Apache, who have led the opposition to injuring the mountain where their spirits live. In addition to the fundamental objections of the tribes, environmental groups have objected to the damage to the site, where Resolution Copper (the purchaser) plans to remove ore from 5,000 to 7,000 feet below the surface. Water is also a major concern in Southern Arizona; local residents have demanded to know the impact on water usage and water pollution, as this scarce commodity flows into and out of the copper mining operation.

The Forest Service has been engaged in an Environmental Impact Study to gather information and comments on these and other issues that the exchange with Resolution Copper entails. The Forest Service’s notice in the Federal Register presents a thorough history of the decision process so far and the issues it raises. Several faith-based organizations participated in the comment process. One set of comments, led by the Religion and Human Rights Forum for the Preservation of Native American Sacred Sites and Rights and joined by the FCNL and six other faith-based organizations, is available here.

The Forest Service has few options, because the NDAA directed that the exchange will occur, and once it does occur, the mining will be taking place on private land. However, the Forest Service is reviewing the impact of roads, pipelines, water and power usage that extend beyond the privately owned land and affect forest land and surrounding residents and towns. The comment period closed on July 17 (after an extension from the original announcement.) The Forest Service must now prepare its report.

Protecting Sacred and Traditional Objects and Sites

Frustrated by a growing black market in sacred and ceremonial objects, particularly those headed for sale in auction houses in Europe, Native American tribes and organizations have urged Congress to step in. This month, Senators Heinrich (NM), Udall (NM) and Flake (AZ) responded by introducing a bill named the “STOP Act” -- Safeguard Tribal Objects of Patrimony (S. 3127). The bill designates a crime of exporting Native American cultural objects, in violation of existing protections, such as the Native American Graves Protection act and the Archaeological Resources Protection Act. The bill also establishes a two-year “amnesty” period, during which private individuals could voluntarily repatriate cultural articles in their possession, and thereby be immune from prosecution connected with taking or receiving the objects.

In the House, Representatives Pearce (NM2), Cole (OK4), and Betty McCollum (MN4) introduced a resolution, the “Protection of the Rights of Tribes to Stop the Export of Cultural and Traditional Patrimony” or “Protect Patrimony” Resolution (H. Con. Res. 122.) As a resolution, this legislation would not have the force of law if passed. But it calls on Congress to publicly condemn the theft and illegal sale of these cultural objects, and specifically asked certain government agencies and organizations to investigate and determine how this trade can be stopped.

The resolution has essentially been buried for this Congress, as it has been referred to three separate committees – Judiciary, Foreign Affairs, and Natural Resources – making it very unlikely that the resolution will be approved. However, among those three committees, there are 127 members. Only about a third of them serve on the Natural Resources Committee, where they are likely to have heard of this issue. For Representatives who serve on Judiciary and Foreign Affairs, the referral of this resolution may provide an opening to inform a larger body about this concern.

Two other new bills address the recovery of the remains of the “Ancient One” or the Kennewick Man. Discovered in 1996 by two college student wading in the Columbia River, these remains are among the oldest skeletons found in the Americas. Because of the location where the skeleton was found, the Army Corps of Engineers emerged as the “owner” of the property and it immediately claimed authority over the skeleton. But archaeologists, scientists, the local coroner also pressed claims, and a coalition of local tribes in the Columbia River basin claimed the remains for reburial under the Native American Graves Protection and Repatriation Act (NAGPRA).

During the last 20 years, the corps has held the skeleton “in trust,” first at the Department of Energy’s Pacific Northwest Laboratory and then at the Burke Museum of Natural History and Culture at the University of Washington in Seattle. Meanwhile court battles and other arguments raged over where the Kennewick Man belongs. In 2004, the 9th Circuit court determined that the age of the skeleton (more than 9000 years old) made its connection with any currently living tribe too tenuous to be protected under NAGPRA, and allowed the scientists to examine the bones. They were given 16 days in 2005 and 2006 for their studies. Those studies yielded remarkable information about the man’s live and activities and possible relatives.

Whether or not he is connected to currently living native peoples in the Columbia Basin region depends on changing perspectives about how this continent was populated. Creation stories of native peoples say that they have been here forever. Other skeletal remains and cultural artifacts found on this continent suggest human cultures much older than 10,000 years, such as a skeleton of a young woman found in Mexico, estimated to be 13,000 years old. To scientists, similarities in appearance and in DNA between early populations here and ancient populations on other continents suggest migration. While the debate among scientists continues, the native peoples seeking repatriation of these remains see the studies and examinations as desecration of a grave, profoundly disrespectful to the Ancient One.

The two bills in the Senate and House, both named the "Bring the Ancient One Home Act of 2015" (S.1979 and H.R. 4131), direct the Chief of Engineers of the Army Corps of Engineers to transfer the skeletal remains to the Washington State Department of Archeology and Historic Preservation, for repatriation to the tribes who are claiming the remains under the Native American Graves Protection Act.