Dawning of "true co-management" for Bears Ears? Analysis by Bill Keshlear

The devil is in the details

Bears Ears country of southeastern Utah (Bureau of Land Management - Utah)

"Utah tribes secure co-management role for Bears Ears National Monument" (Headline, June 22, 2022, The Salt Lake Tribune)

"Native American tribes to co-manage national monument for first time" (Headline, June 20, 2022, The Washington Post)

“Co-management” is a term of rhetorical art coined by high-level Biden administration land managers and leaders of five tribes with ancestral ties to the Bears Ears region of southeast Utah and dutifully passed along by regional and national news outlets to describe an Inter-Governmental Cooperative Agreement ceremonially adopted on June 18.

It was called "unprecedented" – a publicly prominent next step after President Biden's restoration in October of his Democratic predecessor's version of Bears Ears National Monument and toward fulfilling campaign promises to finally take concerns of Indian Country seriously, even on federal land outside of tribal jurisdiction.

The agreement represents "what true Tribal co-management should look like: 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," said Interior Secretary Deb Haaland, the first Native American to serve as a cabinet secretary. "The people of the Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Ute Indian Tribe of the Uintah and Ouray Reservation, and the Pueblo of Zuni have lived in Bears Ears for centuries. I am so proud we have the opportunity to co-manage this monument together."

 

A ceremonial signing on June 18, 2022 at White Mesa, Utah, on the eastern fringe of Bears Ears National Monument. From left to right: Christopher Tabbee, Uncompahgre Band representative, Business Committee of the Ute Indian Tribe of the Uintah and Ouray Reservation; Malcolm Lehi, councilman, Ute Mountain Ute Tribe; Homer L. Wilkes, under secretary, Natural Resources and Environment, U.S. Department of Agriculture; Tracy Stone-Manning, Bureau of Land Management, director; Carleton R. Bowekaty, lieutenant governor Zuni Tribe; Timothy Nuvangyaoma, chairman, Hopi Tribe; Davis Filfred, executive assistant in the Office of President and Vice President of the Navajo Nation. (Bureau of Land Management - Utah)

It's an open question, however, whether this latest development in the 12-year Bears Ears saga is anything more than the federal government continuing its lip service to tribal authority. There’s really nothing much of substance in it beyond the proclamation President Obama signed just before he left office over six years ago. Is it more than a feel-good exercise to allay long-simmering and justifiable tribal suspicions? 

Maybe.

Here's a tangible example of land managers taking their role under the collaborative agreement seriously: An employee of the Bears Ears Commission, an advisory group created by both Obama's and Biden's proclamations, will work out of BLM's Monticello office. That person will be paid from funds of federal agencies. 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 status.

• Believe it or not, it's been 12 years since former U.S. Sen. Bob Bennett started the ball rolling to finally, somehow protect the Cedar Mesa, aka Bears Ears, region of southeastern Utah. Mark and Kenneth Maryboy and Willie Grayeyes, longtime Navajo activists, have kept it rolling for over a decade by, in part, tapping the generosity of very, very well-endowed foundations and organizational assistance of big-name nonprofits and outdoor recreation companies sensitive to environmental and Native American issues. Kenneth Maryboy and Grayeyes became celebrities in Indian County, leading Utah Diné Bikéyah, a multiracial team of young lawyers-to-be, graduate students, field organizers, Native American activists and passionate volunteers. They were the public faces of an extraordinarily sophisticated multi-year, multimillion-dollar PR and political campaign that was national in scope. The two are currently San Juan County commissioners who represent a strip of the county within the Navajo Nation and parts farther north.

The tribes were granted a formal advisory role through creation of the Bears Ears Commission via authority of both the Obama and Biden proclamations and, according to tribal activists at least, priority status among public-land stakeholders. No other stakeholder group has been granted similar status by federal land managers.

Although Bears Ears is outside any Native American reservation, the five tribes of the commission consider the 1.3 million-acre preserve sacred; artifacts of their ancient ancestors, thousands, remain scattered across the landscape, some remarkably intact, mostly unprotected despite being located within monument boundaries. 

The commission was formally re-activated a week ago after a hiatus related to President Trump's decision to undo a chunk of what Obama did in creating the monument. But it’s not the only citizen advisory group whose opinions the Bureau of Land Management and Forest Service will, by law, be required to consider when managing the monument and adjacent public lands. 

Missing were voices of a range of interests that will be critical to the success of Bears Ears National Monument as a vehicle to protect those sacred artifacts, wildlife and stunning, one-of-kind geological formations: experts with backgrounds in preservation of cultural resources, archaeology and paleontology, for example. Representatives of national, state and local government, mining interests, livestock permittees, private landowners, local businesses, outdoor recreation and tourism, conservation and hunting were not included in regional and national news reports.

• Those voices will get a chance to chime in when the Bureau of Land Management and Forest Service convene their Bears Ears National Monument Advisory Committee meeting on June 29 and 30. It's a virtual meeting. Anyone can participate. Go here to find out more and register: https://www.blm.gov/get-involved/rac-near-you/utah/benm-mac

Uniformly positive remarks from the feds and tribes during and after last week's signing ceremony mask the relatively limited scope currently possible of tribal involvement in management-plan development. 

The operative word is “advisory," as stated in the cooperative agreement signed last week; by President Biden's proclamation last October; by the Bureau of Land Management's "Interim Management of Bears Ears" document last December; and, of course, by Obama's proclamation that created the monument. 

Any larger tribal role, such as decision-making authority equal to that of the Forest Service or BLM, would’ve taken an act of Congress, instead of just the president's signature using his authority under the Antiquities Act.

From President Obama's Bears Ears National Monument proclamation, Dec.  28, 2016

From President Biden's Bears Ears proclamation, Oct. 8, 2021

 

 

From a document called Interim Management of the Bears Ears National Monument, written by the BLM and Forest Service, December 16, 2021

 

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Despite characterizations of the Bears Ears agreement being "unprecedented," back in August of last year, a “General Agreement for a Government-to-Government Partnership” was signed between the Federated Indians of Graton Rancheria and the National Park Service for collaborative management of the Point Reyes National Seashore, just north of San Francisco, and sections of Marin County administrated by the preserve's superintendent.

It's similar to the Bears Ears cooperative management agreement; both involve management of non-tribal lands.

Management efforts will focus on designations of Native American Traditional Cultural Properties eligible for listing in the National Register of Historic Places, according to the NPS. Like the Bears Ears plan, it's an attempt to ensure tribal views and traditional ecological knowledge are part of the management, especially management of rare tule elk and ranch lands inside PRNS.

Tule elk, Point Reyes National Seashore (National Park Service)

Tribal roles at Point Reyes, like at Bears Ears, are advisory.

The federal government can (and will) heed or ignore their recommendations based on myriad factors, including politically driven priorities, Byzantine administrative rules, unfathomable, if not exactly random, environmental regulations, special-interest lobbying and litigation. 

Although generally an ally of Native Americans, Obama's Interior Department OK'd the Utah monument based on a blueprint of sorts developed collaboratively by San Juan County residents from a range of backgrounds who formed what they called the Public Lands Council – part of a grand but ultimately unsuccessful deal put together by former Rep. Rob Bishop, R-Utah – and considerations related to preserving the Antiquities Act, according to Tommy Beaudreau, chief of staff of former Interior Secretary Sally Jewell. Beaudreau’s candid remarks were made during a panel discussion at Johns Hopkins University in 2018 (1:00:20 in the video). 

Tribal representatives rejected that proposal, and the newly formed Bears Ears Inter-tribal Coalition submitted to Obama's Interior Department one of their own in October 2015. One of the “main architects” of that strategy was University of Colorado law professor Charles Wilkinson. Wilkinson is a member of the Grand Canyon Trust Board of Trustees, one of several prominent environmental nonprofits that helped out with technical and administrative assistance in creation of the monument. He also helped draft Bill Clinton’s presidential proclamation creating the Grand Staircase-Escalante National Monument in 1996.

• The power of a cluster of rich environmental foundations – unaccountable to democratic institutions and each with varied and often competing goals – has contributed to the stalemate over land management in southeastern Utah. The Wyss Foundation, a project of Swiss multibillionaire Hansjorg Wyss, who lives on the eastern flank of the Tetons, just outside Jackson, Wyo., is an example. Like Wilkinson, Wyss is a board member of Grand Canyon Trust. His foundation contributes significant sums to environmental causes, including the pro-Bears Ears campaign in general and specifically $55,280 to Utah Diné Bikéyah in 2016. In 2015, the year the Bears Ears Inter-tribal Coalition unveiled its monument proposal, the Wyss Foundation, via an entity called Western Values Foundation, gave Grand Canyon Trust $500,000.

The president rejected as politically untenable, unworkable or possibly illegal several elements of the coalition’s proposal.

For example, all monument planning, policy development and staff management would be controlled by a new entity called "Bears Ears Management Commission." No role for the Bureau of Land Management, Forest Service or state and local governments was envisioned. Funding would've come from private-sector sources, according to the proposal, opening a virtual Pandora's Box of conflicts of interest.  The plan would've potentially violated innumerable state and national laws and thrown a monkey wrench into existing protocols hammered out over the years between agencies and various interests that govern day-to-day public-lands management.

Obama balked. The president’s final version of the monument was roughly 500,000 acres smaller than the 1.9 million acres the tribes wanted.

Nevertheless, Bears Ears is now commonly described as the first national monument ever created at the request of a coalition of Indigenous tribes. Contributions of the Public Lands Council have rarely been recognized.

From a document called Inter-Governmental Cooperative Agreement signed June 18, 2022, by representatives of the Bears Ears Commission and the BLM and Forest Service.

 

Embedded in the “General Agreement for a Government-to-Government Partnership” cited above is now-familiar rhetoric of the National Park Service trying to make amends: 

Management Policies of Aug. 31, 2006, acknowledge the unique relationship among NPS and American Indian tribes, recognizing that parks include the ancestral homelands of many tribes; that they protect and preserve resources and sites that are highly significant to the tribes; and they direct NPS to pursue an open, collaborative relationship with American Indian tribes to help them maintain their cultural and spiritual practices, to enhance our understanding of the history and significance of sites and resources in the parks, and to maintain a government-to-government relationship with federally recognized tribal governments. (emphasis mine) 

In addition, multiple federal laws, executive orders, and departmental and agency policies require consultation and/or coordination with applicable Tribes including but not limited to:

• National Historic Preservation Act of 1966 (NHPA)
• National Environmental Policy Act of 1969
• American Indian Religious Freedom Act of 1978
• Archaeological Resources Protection Act of 1979 (ARPA)
• Native American Graves Protection and Repatriation Act of 1990 (NAGPRA)
• Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments)
•  Executive Order 13007 (Indian Sacred Sites)
• Department of the Interior Policy on Consultation with Indian Tribes, 512 Departmental Manual 4
• NPS Director’s Order 28 (Cultural Resources)
• Secretary of the Interior Order 3342 (Identifying Opportunities for Cooperative and Collaborative Partnerships with Federally Recognized Indian Tribes in the Management of Federal Lands and Resources)
• Secretary of the Interior Order 3399 (Department-Wide Approach to the Climate Crisis and Restoring Transparency and Integrity to the Decision-Making Process)

The hollow words and forgotten legislation are examples of reasons for continuing and deeply held suspicions among Navajo critics of the Utah monument who recall the National Park Service's pattern of cultural genocide from even its founding and guiding philosophy: commercial exploitation and forced removal of Indigenous peoples from land they had inhabited for hundreds of years, many generally considered examples of what writer Wallace Stegner called, without irony, "the best idea we ever had. Absolutely American, absolutely democratic, they reflect us at our best rather than our worst": Yosemite, Glacier, Grand Canyon and Yellowstone.

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The most clear-eyed criticism of creating Bears Ears National Monument was related to the fact that it would be managed by the Bureau of Land Management, a unit of the Interior Department whose legal mandate tilts toward resource extraction. Preservation of Native American culture and conservation? Not as much.

 

It would be heavily promoted by the tourism industry, according to critics, luring tourists and serious recreationists to a fragile, desolate wilderness without BLM or local and state officials having the financial wherewithal to regulate activities of visitors, fulfill public-safety responsibilities, generally clean up messes and stymie vandals. Monument designation would protect nothing – at least in the short run. In the long run, damage done cannot be undone.

 

The prophesy seems to have been fulfilled.

From Inter-Governmental Cooperative Agreement signed June 18 by representatives of the Bears Ears Commission and the BLM and Forest Service

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Somewhat related:

Ping-pong protection: Is anything on the horizon that will truly safeguard Bears Ears?

Beyond the familiar apocalyptic boilerplate: About that drilling near Labyrinth Canyon

Designate it, publicize it and they will come … and destroy it: Of untouchable rhetoric and the fight against overcrowded tourism at home and abroad (Well, not so much at home)

The Grand Staircase Story: Morality of mining, no-compromise environmentalists, unreliable sources

Same as it ever was: Culture appropriation and displacement in the best of the West