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Bill slammed as 'modern day Indian land grab' moves forward

Thursday, September 22, 2016

Rep. Rob Bishop (R-Utah) serves as chairman of the House Committee on Natural Resources. Photo from Facebook

Republicans advanced a controversial bill derided as a "modern day Indian land grab" even after Democrats said would set a negative precedent for tribes nationwide.

H.R.5780, the Utah Public Lands Initiative Act, transfers 100,000 acres from the reservation of the Ute Tribe to the state of Utah and imposes management changes on another 200,000 acres on the reservation. The provisions were added to the 215-page bill without the tribe's consent.

But Rep. Rob Bishop (R-Utah), the sponsor of H.R.5780, insisted that he asked the tribe for input. He claimed that he didn't get a response from Ute leaders for more than "a year" so he went forward with the Utah Public Lands Initiative anyway.

"I find the term 'land grab' personally offensive," Bishop said.

The tribe indeed slammed the bill as a "land grab" in a statement on Indianz.Com last week that has since been published in a mainstream outlet in Utah. Democrats picked up on the phrase and tried, unsuccessfully, to remove the provisions at issue from the bill at a markup on Capitol Hill on Thursday morning.

"For crying out loud, fellow Congressmen, let's not repeat the history and the errors that this government has done with the tribe throughout generations," said Rep. Raul Ruiz (D-California), the top Democrat on the House Subcommittee on Indian, Insular and Alaska Native Affairs.

"We take away their land, the government then puts them in inhospitable areas, we expect them to develop on rocks and areas that they can't develop on, and then now we want to take more land from them?" Ruiz said.

"Let's stop doing that," Ruiz added. "Let's not repeat history."

Despite the emotional plea, Republicans rejected Ruiz's amendment to protect the tribe's boundaries by a vote of 13 to 21. And they approved the overall bill itself in another lopsided vote.

The quick action came barely a week after lawmakers took testimony on H.R.5780. While Vice Chairman Ed Secakuku and council member Bruce Ignacio were in the audience at the time, they were not invited to testify on the measure.

Bishop, however, sought to assuage concerns about the fast pace. He said he called the markup only to address "technical" changes to the bill.

"I just want people to know, this is not the end to the process," Bishop said.

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, Bishop refused to accept criticism about the "land grab" provisions. During the first half of the markup, which took place on Wednesday afternoon, he insisted that the 100,000 acres in question is actually controlled by the Bureau of Land Management and not the tribe.

"If the tribe thinks that's an error, then they should talk to Sally Jewell -- she is the trustee for the tribe," he said, referring to Secretary Sally Jewell of the Interior Department, the parent agency of the BLM.

"Department records show who owns that land and who doesn't," Bishop said on Wednesday.

Rep. Tom McClintock (R-California), the chairman of the Subcommittee on Federal Lands, the panel that heard the bill last week, repeated those comments nearly word for word on Thursday.

According to Bishop, the bill does not allow for the transfer of any lands held in trust for the tribe or any lands owned in fee by the tribe. He mentioned the provision on Wednesday and on Thursday.

However, Bishop did not directly address the issue that Ruiz brought up on Thursday: transferring any lands -- regardless of ownership status -- could be seen as a reduction, or diminishment, of the reservation.

Instead, Bishop insisted that the boundaries of the reservation are still being litigated. That's something a tearful witness from the state claimed at the hearing last week.

However, the 10th Circuit Court of Appeals has twice ruled that the reservation lands at issue have not been diminished by Congress. The court has repeatedly scolded the state for trying to "relitigate" the boundaries and even reassigned the case to a new judge in order to ensure that its mandates are followed.

"Let's be clear -- these are Indian lands that are part of an Indian reservation," said Ruiz. "Congress has never taken these lands away from the reservation."

"H.R.5780 will be the first that would take these lands from the tribe," added Ruiz, who criticized his Republican counterparts for failing to allow the Subcommittee on Indian, Insular and Alaska Native Affairs -- which has all but gone missing in action in 2016 -- to hear the bill.

Reservation diminishment disputes are extremely fact intensive. Federal courts look at executive orders, treaties, historical circumstances and other evidence in determining whether land has been removed from a reservation.

But, as the U.S. Supreme Court pointed out in a unanimous decision in March involving the Omaha Tribe, Congress plays a big role.

"Only Congress has the power to diminish a reservation," Justice Clarence Thomas wrote.

A view of Bears Ears in Utah. Photo by Tim Peterson

Amid the controversy surrounding the bill, Democrats insist that it will never become law, especially since the clock is winding down on the 114th Congress in a heated and busy presidential election year. Bishop hinted at the crunch and indicated his committee might not have time for another markup before the November election.

President Barack Obama could also blunt a major portion of the bill by declaring a national monument at Bears Ears in Utah. A broad coalition of tribes supports a designation to protect 1.9 million acres of sacred sites and ancestral territory. H.R.5780 only sets aside a portion as a "conservation area."

“The reality is that this bill is absolutely ludicrous and shameful," Regina Lopez-Whiteskunk, the co-chair of the Bears Ears Inter-Tribal Coalition, said in a press release on Thursday.

"The PLI proposes to transfer 100,000 acres of the Ute Tribe of Utah’s Uncompaghre Reservation to the state of Utah for fossil fuel development," said Lopez-Whiteskunk, who serves on the council of the Ute Mountain Ute Tribe in neighboring Colorado. "It would also hand control over permitting and regulation of energy development on federal lands to the state. This would place our common cultural, air, and water resources in greater jeopardy. The coalition cannot in good conscience stay silent on the imminent danger posed by this bill."

House Committee on Natural Resources Notices:
Markup on 5 Bills (September 22, 2016)
Markup on 5 Bills (September 21, 2016)
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)