We recently caught up with Charles Wilkinson, Moses Lasky Professor of Law at the University of Colorado Law School and asked him to reflect on the history of public lands battles in southeast Utah, the significance of the Bears Ears National Monument established by former President Barack Obama in 2016, and his predictions regarding the lawsuits challenging President Trump’s reduction of the Obama monument in late 2017.

Starting in the 1970s, when he worked for the Native American Rights Fund, Wilkinson has devoted his professional life to helping tribes use their rights as sovereign nations to regain what has been denied or wrested from them. Given his reputation, the five Native American tribes that in 2015 formed a coalition to lobby then-President Obama to create Bears Ears National Monument called on Wilkinson to serve as a special adviser as they prepared to advocate for protection of nearly 2 million acres of land in southeast Utah.

Wilkinson called the Obama proclamation declaring Bears Ears “one of the finest statements the federal government has ever made regarding Indian affairs. Far more than any earlier proclamation, this one, because of the tribes’ deep involvement in its development, is truly an Indian national monument. It was a real honor to the tribes to be spoken of this way.”

The tribes’ ultimately successful campaign to protect the Bears Ears region was the result of an unprecedented movement to protect landscapes that are profoundly sacred to the area’s Native peoples. Key to their campaign was gathering knowledge gleaned from years of interviews with Native elders who lived in and around Bears Ears: where medicinal herbs are gathered; where traditional hunting grounds are located; which religious shrines are the most significant; and where other sites of cultural or historical significance were located.

This work, begun in 2010 by the grassroots Native organization Utah Dine Bikeyah, provided the template for the Bears Ears National Monument proposal advanced by the Bears Ears Inter-Tribal Coalition. Comprised of tribes that live in and/or trace their ancestry to the Bears Ears region - the Hopi, Navajo, Ute Indian Tribe, Ute Mountain Ute, and Zuni - the Coalition is the first-of-its-kind group of sovereign nations working to collaborate with the federal government on land management.

Wilkinson emphasizes “a unique aspect of the proclamation: establishing a tribal Commission to ensure that the land is managed collaboratively in a way that reflects tribal expertise and historical knowledge.”

He recites from memory a key section from the proclamation:

“The traditional ecological knowledge amassed by the Native Americans whose ancestors inhabited this region, passed down from generation to generation, offers critical insight into the historic and scientific significance of the area. Such knowledge is, itself, a resource to be protected and used in understanding and managing this landscape sustainably for generations to come.”

Prior efforts to protect the lands surrounding Bears Ears dating back to the 1930s have been led not by tribes, but by the federal government and conservation organizations. What these efforts have in common with the successful Bears Ears campaign is the evocation of fierce opposition to the proposals faced from some local Utahns and the state’s congressional delegation. Their opposition arose in part because ranchers and miners -- once the drivers of the local economy -- feared a threat to their livelihood,  and as well because, in some cases, the mechanism for effecting protection was a presidential executive order: to many of the locals, a symbol of federal overreach.

The executive order in question is the Antiquities Act, which allows the president to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as national monuments. The Act provides the President with the ability to declare a national monument unilaterally, and by so doing, to bypass Congress if s/he assesses that legislative protection of an area is deemed impossible.  

With monument protection, livestock grazing and mining, while still permitted, can be significantly restricted and regulated. Nevertheless, the additional levels of regulation are anathema to those (relatively small number of) ranchers and miners affected by a monument declaration.

In addition to Bears Ears, another monument whose establishment triggered outrage from some southern Utahns is Grand Staircase-Escalante National Monument. Established in 1996 by then-President Bill Clinton, Grand Staircase protected 1.7 million acres in southern Utah. Wilkinson was involved in the back-room conversations that led to the monument’s creation.

The long-simmering resentment from the creation of Grand Staircase further inflamed the battle over Bears Ears and ultimately led to President Trump’s reducing the area protected in the Obama declaration by 85 percent, and replacing the original Bears Ears Monument by two far smaller parcels. At the same time, Trump reduced  Grand Staircase monument by 50 percent.

The tribes, along with conservation groups and representative of the outdoor industry immediately challenged the Trump reduction. The case is now in the hands of US District Judge Tanya Chutkan.

During 2017, prior to the Trump executive order reducing the size of Bears Ears, Wilkinson notes that the Coalition along with their counterparts in the federal agencies charged with managing the new Monument collaboratively with the tribes — the US Forest Service and the Bureau of Land Management — met a number of times with federal officials to begin sorting out working definitions for collaborative management.

“These were spectacular discussions,” Wilkinson recalls. “Collaborative management had never been done with tribes. They were working together, the way it should happen. It was a search on both sides to understand one another...what each side wanted, and what each side could do in light of the directives of the Obama Proclamation. Talk about people working in good faith!”

“Then President Trump came down with the proclamation that blasted the monument. After that, the Coalition and the agencies knew that they couldn’t continue in the same way. The Coalition, of course, respected that.”

While the discussions between the federal agencies and the tribes are curtailed pending resolution of litigation challenging the Trump rescission of the monument, Wilkinson believes it important that the tribes continue efforts to develop a framework for management policies for Bears Ears informed by traditional knowledge.

“Traditional Knowledge flows from the Indian worldview with its profound and intricate relationship between indigenous peoples and the natural world. Incorporating traditional knowledge into land management is enormously complicated to imagine no less implement. You need first to get the traditional knowledge data together.”

To do this, Wilkinson advocates for the early creation of a Traditional Knowledge Institute, originally part of the Inter-Tribal Coalition’s plan for Bears Ears, but placed on the back burner in light of the challenges posed by the Trump rescission.

“I’m imagining a vibrant, world-class Traditional Knowledge Institute, that could work not just locally, but globally. There would be local and national gatherings of western scientists and traditional knowledge experts, and occasional international meetings held there at Bears Ears. The Institute could begin to gather traditional knowledge,” as Utah Dine Bikeyah did to create the first proposal for protecting the Bears Ears region. “Then the tribes can move the traditional knowledge to the agencies so that the tribes and agencies can work collaboratively to make it a part of day- to-day monument management.”

In Wilkinson’s mind, “The target [opening] date is January 20, 2021” - Trump’s last day in office. “You can’t get much done with the federal agencies before then. So establish the Institute. Get a conceptual management plan drafted and ready to go. Have a fabulous document that is rich with ideas. Show that it’s a new world in land management.”

A challenge is, of course, to fund and staff the Institute. Wilkinson believes that sufficient private funds can be raised, and hopes to see its work begin post-haste.

Our conversation next turned to his thoughts regarding the challenges to Trump’s reduction of the monument.

“I believe the law is on our side and that we should win this case,” Wilkinson says. The judge is a good one, but she moves slowly and carefully, and has a good deal on her plate.”

“I think the objection to the monument on the grounds that it protects far too much land will fail. In that respect, there is a controlling Supreme Court decision (Cameron v United States). The Court affirmed President Theodore Roosevelt’s declaration of an 800,000 acre Grand Canyon national monument. [The monument] was opposed by ranching and mining interests on the grounds that the area protected was not the smallest compatible with protection of articles of scientific and cultural interest. The complainants lost that case.”

However, “The Supreme Court has never considered whether a president could rescind or dramatically reduce the size of a monument. No one ever thought something like that could have happened. Can a president ‘yank’ a monument? Can a President attempt to tear apart the national monument system — a foundation stone of American conservation law and policy? All the cases suggest the right result, but there is no directly controlling law.”

In musing about next steps in the Court cases, Wilkinson offered a prediction: “I think Judge Chutkan will rule in our favor. I expect Trump’s folks to then appeal to the DC Court of Appeals and then to the Supreme Court. That means that we’re a ways away from final resolution. Still, what a great moment Bears Ears will be. I’m confident that the tribes will be ready.”