Emotions run strong as #NoDAPL seeps into debate on controversial public lands bill

Wednesday, September 14, 2016

A public lands bill got its first hearing on Capitol Hill on Wednesday amid controversy and concerns about the #NoDAPL movement's influence on federal policy.

H.R.5780, the Utah Public Lands Initiative Act, was contentious even before it was officially introduced in July. A group of tribes walked away from talks with Republican lawmakers more than a year ago and said they were "miles apart" ahead of the hearing in Washington, D.C.

Regina Lopez-Whiteskunk, the co-chair of the Bears Ears Inter-Tribal Coalition, expanded on those concerns at the hearing. Provisions in the 215-page bill significantly affect the rights of the Navajo Nation and the Ute Tribe but were included in the bill without their consent.

"This has Native American tribes very much on alert when you look at the precedents that could be on the floor here," Lopez-Whiteskunk, a council member for the Ute Mountain Ute Tribe, said of the bill.

"Do we really want to set Native American conversations with Congress and agencies back another hundred years?" Lopez-Whiteskunk added. "My sincere and heartfelt request is, 'No.'"

Indianz.Com SoundCloud: House Subcommittee on Federal Lands Hearing September 14, 2016

Rep. Raúl M. Grijalva (D-Arizona), the top Democrat on the House Natural Resources Committee, reinforced those sentiments. Congress risks another Dakota Access Pipeline fight by pushing the bill forward without consulting the impacted tribes, he argued.

The #NoDAPL struggle in North Dakota requires lawmakers to "look at this question with an entirely different set of eyes," said Grijalva, who visited the massive encampment over the weekend.

"When we are proposing land use decisions, massive transfers, looking at monuments ... we need to be careful and do due diligence to assure that we are not repeating indignities of the past and ignoring, or sidestepping, or waiting till the last minute to deal with the very urgent and real needs that Native American nations and their leadership are bringing before this Congress and, in Standing Rock, before this nation," Grijalva said.

Most of the concerns focused on the Ute Tribe of Utah, whose council called the bill a "modern day Indian land grab" in a statement on Indianz.Com earlier in the day. While Ute leaders were present in the audience, they were not invited to testify on H.R.5780 even though lands promised to their ancestors would be taken away and transferred to the state of Utah.

Their mere presence, though, was enough to bring another witness to tears. Noting that he's only been on the job as the director of the Utah School and Institutional Trust Lands Administration for 10 months, David Ure said he's grown to "respect" and "admire" the tribe.

"I don't always agree with them," Ure said as he struggled to complete his testimony. "But I've learned to respect their culture and their history and I look forward to doing it again."

"It will not be an easy cup of tea but we have a good communication," he said of Ute Vice Chairman Ed Secakuku and council member Bruce Ignacio, who were at the hearing.

In decisions known as Ute III and Ute V, the 10th Circuit Court of Appeals ruled that the Uncompahgre Reservation has not been diminished by Congress. Source: Ute Tribe v. Utah

At the same time, Ure defended the bill, which transfers 100,000 acres of the tribe's land to his agency's control. Even though the 10th Circuit Court of Appeals has repeatedly ruled that the Uncompahgre Reservation has not been diminished by Congress, he insisted that the issue has not been settled and is still being litigated.

That kind of recalcitrance was in fact called out by the 10th Circuit in its most recent ruling in the long-running dispute, prompting the Utes to question why the state keeps attacking their sovereignty.

As for the Navajo Nation, Vice President Jonathan Nez and Council Delegate Davis Filfred, who represents Navajo communities in Utah, were also in the audience. But they weren't invited to testify either even though the bill reduces the tribe's share of a trust fund that was created by Congress in 1933.

The federal courts have repeatedly chastised the state for failing to account for the portion of the Utah Navajo Trust Fund that it is supposed to manage on behalf of Navajo citizens in Utah. Yet the bill -- in just three lines buried in the huge package -- actually doubles the percentage of royalties that flow to Utah.

I'm at the Longworth Building for the Utah Public Lands Initiative hearing. Councilman Davis Filfred is joining me. pic.twitter.com/ZqtaniKBHp
— Jonathan M. Nez (@VPNez) September 14, 2016

Instead of receiving 62.5 percent of the royalties from energy development on its own lands in Utah, the tribe would only see 37.5 percent under the bill. Such a restatement, when done without the consent of the beneficiary, would normally be considered a major fiduciary violation.

The focus on the Ute Tribe and the Navajo Nation and the lack of consultation was unexpected. Going into the hearing, most of the discussion has centered on the proposed Bears Ears National Monument, which Republicans in Utah oppose.

H.R.5780 instead designates 1.4 million acres of sacred sites and ancestral territory in Utah as a "national conservation area." But the bill allows for continued exploitation of the land and does not protect important areas, according to the Bears Ears Inter-Tribal Coalition.

Rep. Rob Bishop (R-Utah), the sponsor of the bill, has previously outlined an aggressive schedule for its consideration. As the chairman of the House Committee on Natural Resources, he has the power to move it through his panel regardless of objections from tribes and Democrats.

"It can easily be said: I don't think any bill has ever had this kind of public input ever before in this committee or in this Congress," Bishop insisted. "No one has been cut out of this process."

House Committee on Natural Resources Notice:
Legislative Hearing on H.R. 5780 “Utah Public Lands Initiative Act” (September 14, 2016)

10th Circuit Court of Appeals Decisions:
Becker v. Ute Indian Tribe [Amended] (August 29, 2016)
Ute Tribe v. Utah (June 16, 2015)