Scott G Winterton, Deseret News
The Bears Ears area in San Juan County is seen on Thursday, June 2, 2016.

SALT LAKE CITY — Native American supporters of the proposed Bears Ears National Monument in San Juan County say they believe a tailored proclamation issued by President Barack Obama will protect their religious freedom.

That spiritual expression practiced by medicine men and medicine women includes the gathering of plants or berries, wood for rituals, and special dances and ceremonies that occur on the 1.9 million acres of rugged terrain in southeastern Utah.

Among the sandstone monoliths, yawning plateaus and ponderosa pines, mixed in with slot canyons and other dramatic rock formations are more that 100,000 archaeological resources that include cliff dwellings, gravesites and pottery shards — with some of them suffering damage by vandals.

This area is special to the Navajo, who make up about half of San Juan County's population of 15,000 people, but the landscape also holds historical and religious importance to the Ute, Ute Mountain Ute, Paiute, Hopi and Pueblo of Zuni.

The tribes formed the Bears Ears Inter-Tribal Coalition to lobby for the monument and has garnered support from 26 other tribes.

But elected leaders in San Juan County, including Navajo Rebecca Benally, a commissioner, are opposed to the monument.

Benally, joined by Utah's congressional delegation and Utah Gov. Gary Herbert, say a monument designation will prevent Native American traditional practices on the land and eliminate activities critical to tribal members in the area, such as gathering wood for fires to heat their homes.

In contrast, a National Conservation Area for the Bears Ears Butte region — a provision in a public lands bill by Rep. Rob Bishop, R-Utah, — would be designed to accommodate those uses.

"An NCA would take care of that," Bishop insists.

Inconsistencies

The National Park System, the Bureau of Land Management and other federal and state agencies have a spotty and inconsistent track record when it comes to adhering to the tribal rights of Native Americans and their expression of religion.

In the absence of clear public policy, national park service managers have acted on their own discretion to either forbid, or allow, the gathering of native plants for tribal purposes.

Over the years, protracted legal battles have been fought in the courts stemming from a relationship often in conflict.

While there have been national directives issued by the U.S. Department of Interior and other agencies and laws that require federal agencies to collaborate with tribes, collaboration only goes so far and does not guarantee capitulation to tribal wishes.

Several national parks have carved out agreements with certain tribes over plant gathering and other activities, including parks in Utah such as Zion and Cedar Breaks National Monument.

The agreements are often accompanied by expiration dates and are subject to renewal in a decision left to the discretion of the current land manager.

Inconsistency in individual park positions on the matter of plant gathering led the National Park Service to issue a proposed rule in 2015 to settle the matter, but some tribes have objected to the bureaucratic rules accompanying the plant gathering, including an environmental analysis. In addition, nonnative Americans have objected to the preference given to tribes.

"The notion that 'first peoples' have an unbroken connection or claim to the land reduces the last five centuries of history to a footnote," wrote Kirsten Stade, advocacy director of Public Employees for Environmental Responsibility. "The parks belong to all — aboriginal and new residents equally."

Stade, in her research released in 2010, said traditional ties to the land aren't copyrighted by Native Americans, but can also be claimed by Appalachian mountain people and high country ranchers.

Court history

The contention that federal land managers elevated one religion over that of others surfaced in a dispute involving The Church of Jesus Christ of Latter-day Saints, the Bureau of Land Management and the American Civil Liberties Union.

In 2006, all parties reached an agreement after a lawsuit was brought by the ACLU over the church's 25-year lease of a historical site in Wyoming and a church-operated visitor center.

The ACLU had contended people were subjected to religious messages on federal property and from LDS volunteers.

Another case put the park service in a legal fight to defend its decision prohibiting rock climbers from scaling the 600-foot-tall butte at Devils Tower National Monument during June, a month in which Great Plains tribes travel there to perform sacred religious ceremonies. The decision was ultimately upheld by the courts, allowing for the tribes to practice their religion without the rock climbers present.

The Navajo didn't fare as well in the 9th Circuit Court of Appeals in a 2015 ruling. In a case involving the Snowbowl ski resort in Arizona, the Navajo sued over the Forest Service allowing the use of reclaimed water to manufacture snow.

The tribe claimed use of sewer water on the sacred San Francisco Mountains was grossly profane and desecrated a place of physical and spiritual integrity.

Justices ruled the use of reclaimed water did not impair religious liberty or rights.

"They reasoned the Navajo could still go to the mountain and pray there and they were just complaining about physical injury," said Luke Goodrich, an attorney with the Becket Fund for Religious Liberty.

Goodrich, a Salt Lake City attorney who teaches constitutional law at the University of Utah, was on the legal team that successfully argued on behalf of Hobby Lobby, a private family business at the heart of a landmark ruling issued by the U.S. Supreme Court in 2014.

In that case, the business argued that a federal mandate to provide insurance for potentially life-terminating contraceptives violated their religious beliefs.

The law central to the case, the Religious Freedom Restoration Act of 1993, has a two-prong test that applies to religious liberty. First, it requires demonstration that government is substantially burdening the exercise of religion, and if so, the burden shifts to the government to prove that it has a compelling interest in doing so.

Goodrich said the courts have treated violations of the act seriously, but its application in federal land use cases has been mixed.

"Some of the American land use cases are harder for courts to decide," he said. "It is in an unfamilar space to many judges with different types of claims involving spiritual interest in very large tracts of land."

Competing interests

Traditional Native American uses of the land are often in conflict with land management agencies like the park service, whose foremost mission is to protect natural resources. Federal agencies are also tasked with documenting and protecting cultural artifacts.

The Navajo Nation is suing the park service to force the return of more 300 remains and sacred relics recovered at Canyon de Chelly in 1931 when it was designated a national monument.

Although the land at the park is co-managed by the Navajo Nation and its land is entirely located within the boundaries of the nation, the sacred items remain at an archaeology center in Arizona in the federal government's possession.

The Bears Ears coalition wants a presidential proclamation for the monument to include provisions about management and access, specifically that there be a park manager overseen by an eight-member commission made up of five tribal representatives and three federal agency representatives.

In a collaborative style of management between the federal government and the tribes, should any disagreement arise, the management plan calls for mediation. If mediation fails, the ultimate decision would fall to the Secretary of the Interior.

The proclamation should also include a provision protecting tribal rights.

Willie Grayeyes, a Navajo Nation member who is on the board of monument proponent Utah Dine Bikeyah, said he has no doubts that Native American access can be guaranteed by a presidential proclamation, and detractors are wrong.

"I have no second thoughts about having any restrictions to the area by the Native Americans as far as their religion and their belief are exercised by virtue of the fact of the federal law called the Native American Freedom of Religion Act of 1978."

That law, however, was subsequently impacted by a later decision from the U.S. Supreme Court that puts Native American rights in question when it comes to the rights of private or government landholders.

Still, Grayeyes said he believes the management structure envisioned in the coalition's blueprint for the Bears Ears monument will set a new course for Native American tribal rights and access.

"I think this one will set a precedent over other national park policies, whereby the proposed collaborative management will be considered which will liquidate all disagreement between the BLM, the Forest Service, the park service and Native Americans," he said.

But Bishop said there are no guarantees the provisions protecting Native American rights will be included in a monument designation, or those provisions won't be undone by a future president.

"They can ask for X, Y and Z, but often these are left to the discretion of actual land managers," he said. "The only way to guarantee that is through an act of Congress, which is what we are trying to do."

Over time, federal and state governments have recognized the need to go beyond simple consultation with the tribes and have turned to co-management contracts or other written agreements.

In California, the Bureau of Land Management inked a memorandum of understanding with a tribe in May involving the Cotoni-Coast Dairies property on the California coast. The agreement calls for an equal partnership on plant management.

Goodrich cautioned, however, that agreements — depending on their type — only go so far.

The Becket Fund is representing members of the Yakama Nation in a suit over the 2008 bulldozing of sacred burial sites.

Goodrich said the tribes had a written agreement with the Oregon Department of Transportation on the future development of the highway to Mount Hood, which nevertheless didn't prevent the state from widening the highway.

"The government has gone far beyond what it agreed to in that original highway plan and has gone back on its word to the detriment of the Native American sacred rights," he said.

How much government adheres to an "agreement," depends on it finding legal refuge in a case that proves there is a compelling interest to interfere with religious liberty and demonstrating that it has done so in the least restrictive manner possible.

"It can depend on the type of agreement, but obviously the federal government has a horrible record of keeping written promises to Native Americans," Goodrich said.

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