Friday, December 1, 2017

On Monday, representatives of the five Native American tribes of the Bears Ears Inter-tribal Coalition, the Hopi, Pueblo of Zuni, Navajo Nation, Ute Mountain Ute Tribe, and Ute Indian Tribe announced plans to sue the administration of sitting United States President Donald Trump over the shrinking of protections on a Utah monument area that is home to Native American ruins and artifacts. Ten environmental groups, including the Sierra Club, Center for Biological Diversity, National Resources Defense Council, and Wilderness Society are also filing lawsuits regarding another monument area, also in Utah. President Trump publicly announced his plans to redesignate both sites on Monday.

In a visit to Utah on Monday, President Trump announced plans to break up the Bears Ears National Monument into three smaller areas similarly reduce the Grand Staircase-Escalante National Monument. The coalition claims that the Antiquities Act of 1906 forbids the president from doing this. “The President was plainly aware that he lacked the authority to revoke a monument and is thus transparently attempting to evade that strict limitation by purporting to reduce it but, as described herein, the President’s action must be viewed as a revocation, particularly with respect to all objects not included in the two ‘new’ monuments,” the official filing argues.

In his announcement, President Trump said, “The families and communities of Utah know and love this land the best, and you know the best how to take care of your land. You know how to protect it. And you know best how to conserve this land for many, many generations to come,” and called the original designation government overreach.

There is some legal precedent for a president shrinking a national monument—Woodrow Wilson shrank the Mount Olympus National Monument during the early 20th century, but no court cases ever rejected or endorsed the decision.

Although the specifics were not confirmed until Monday, the fact that the administration had plans to reduce protections on Bears Ears and Escalante in some way has been public knowledge, and the tribal coalition had already been planning to sue. In a statement issued Thursday, Nov. 30, President of the Navajo Nation Russel Beyaye said, “At the very least, President Trump should have consulted with the original local governments of the Bears Ears region: our five Indian Nations. Instead, our many requests for consultation were ignored. An action to diminish the Bears Ears National Monument in any way will be an action against the Navajo Nation and the Navajo people who have worked so tirelessly to protect these lands.”

“The tribes view this as an affront to themselves and their own self determination,” said attorney for the Native American Rights Fund Natalie Landreth earlier this month in the Salt Lake Tribune. “All of us, all five tribes will be suing jointly the day he makes an announcement.”

Bears Ears and Grand Staircase-Escalante were declared protected areas by then-Presidents Barack Obama and Bill Clinton, and both are home to artifacts and archeological sites. Bears Ears had a problem with looters before President Obama declared it a national monument. The changes will split the monuments up into many smaller parcels and reduce the overall protected area by more than a million acres collectively. According to some White House documents, protected status will be “confined to the smallest area compatible with the proper care and management of the objects identified” as in need of protection.

The Antiquities Act gives the sitting U.S. President the authority to set aside spaces already within federal territory that he feels are in danger without requiring approval from Congress, for example, by prohibiting industrial development and motor vehicle access. Over the past century, legal scholars and a U.S. attorney general have claimed that the Act does not permit a sitting president to reverse a previous president’s decision.

Several Republicans, including Senator Orrin Hatch of Utah, support the president’s decision: “I believe his proclamation, following Secretary [of the Interior] Zinke’s fair, thorough, and inclusive review, will represent a balanced solution and a win for everyone on all sides of this issue.”

Other groups, including the clothing retailer Patagonia have also announced plans to sue. Patagonia, which sells outdoor clothing and equipment, argues that by reducing the size of areas where customers would use the company’s products, the government is denying Patagonia business. However, the Inter-tribal Coalition’s lawsuit was the first one filed.

“The tribes feel it was important to file first, to be ahead of the line, to make it very clear that this is not just a conservation issue,” said attorney Natalie Landreth of the Native American Rights Fund, which is representing the coalition. “To them, it is a tribal sovereignty issue.”

This comes days after President Trump was condemned by the National Congress of Native Americans for his use of the term “Pocahontas” during ceremony meant to honor Navajo Code Talkers, Native American men who developed and used a Navajo language-based military code for the U.S. military forces during World War II. “Pocahontas,” is President Trump’s nickname for Democrat Elizabeth Warren, a reference to Warren’s claims that her family has Native American ancestry. The ceremony was held in front of a picture of former president Andrew Jackson, who presided over the Trail of Tears in the early 1800s, in which thousands of Cherokee perished in a forced migration west.

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