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Through a federal suit in 2007, Hobbs Straus attorneys obtained protection of tribal court authority over child custody proceedings.

General Memorandum 17-004

General Memorandum 17-004
Bears Ears and Gold Butte National Monuments Established by Presidential Proclamation

On December 28, 2016, President Obama issued proclamations establishing two new national monuments, Bears Ears in Utah and Gold Butte in Nevada, both of which are important to Indian tribes for cultural and religious purposes. These proclamations were issued under the authority of the Antiquities Act of 1906, 54 U.S.C. § 320301, which provides that the President may establish national monuments on lands owned or controlled by the federal government in order to preserve "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest." Both proclamations were published in the FEDERAL REGISTER on January 5, 2017, and are available at https://www.gpo.gov/fdsys/pkg/FR-2017-01-05/pdf/2017-00038.pdf and https://www.gpo.gov/fdsys/pkg/FR-2017-01-05/pdf/2017-00039.pdf.

Bears Ears National Monument encompasses approximately 1.35 million acres of federal land administered by the Bureau of Land Management (BLM) in the Department of the Interior and the U.S. Forest Service in the Department of Agriculture. As described in the proclamation, the diverse topography of the Bears Ears landscape supports a wide variety of vegetation and wildlife. There is abundant evidence of human habitation for thousands of years. The driving force in the establishment of this national monument was a coalition led by five tribes: the Hopi Tribe; Navajo Nation; Ute Indian Tribe of the Uintah and Ouray Reservation; Ute Mountain Ute Tribe; and Zuni Tribe. As described in the first paragraph of the proclamation, this is "one of the densest and most significant cultural landscapes in the United States" which contains rock art, cliff dwellings, ceremonial sites, and countless artifacts. Acknowledging that the "extraordinary archaeological and cultural record" is important to all Americans, the proclamation adds, "most notably the land is profoundly sacred to many Native American tribes."

Gold Butte National Monument encompasses approximately 296,937 acres, mostly administered by BLM. The Gold Butte proclamation cites evidence of human habitation for at least 12,000 years, and notes that, when Spanish explorers arrived in the eighteenth century, it was part of the homeland of the Southern Paiute people, "who to this day, retain a spiritual and cultural connection with the land and use it for traditional purposes such as ceremonies and plant harvesting." The coalition that advocated for creating this national monument included the Las Vegas Tribe of Paiute Indians and Moapa Band of Paiute Indians. In addition to its importance for present-day tribal traditions and for evidence of past human habitation, the Gold Butte landscape provides habitats for many species of vegetation and wildlife, which are described at length in the proclamation. The area has also become important for paleontological research.

The main legal consequence of both these proclamations is to put these lands off-limits for new claims under the federal mining laws and from other kinds of extractive resource development under the public land laws. Valid existing rights are not affected.

Each of these proclamations provides for the land-managing agencies to "ensure protection of Indian sacred sites and traditional cultural properties in the monument and provide for access by members of Indian tribes for traditional and customary uses." The Bears Ears proclamation expressly adds "collection of medicines, berries and other vegetation, forest products, and firewood for personal noncommercial use." The Gold Butte proclamation allows for "traditional tribal collection of seeds, natural materials, salt, or materials for stone tools."

When the President proclaims a national monument, the standard practice is to direct the land-managing agency with jurisdiction over the federal lands to develop a management plan to carry out the proclamation, providing for public involvement and for consultation with state, tribal, and local governments. Each of these proclamations calls for the development of such a management plan, as well as for the establishment of an advisory committee to provide information and advice in developing and carrying out the management plan. The Bears Ears proclamation adds that the advisory committee "shall consist of a fair and balanced representation of interested stakeholders, including State and local governments, tribes, recreational users, local business owners, and private landowners."

The Bears Ears proclamation goes beyond the standard practice for seeking input into the management plan by establishing the Bears Ears Commission, consisting of one elected officer from each of the five tribes. The reasons for establishing this Commission are to recognize "the importance of tribal participation to the care and management of the objects identified [in the proclamation] and to ensure that management decisions affecting the monument reflect tribal expertise and traditional and historical knowledge."

Please let us know if we may provide additional information or assistance regarding either of these two new national monuments.

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Inquiries may be directed to:
Dean Suagee (dsuagee@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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