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