cultural resources

Update in Caddo-Wichita & Affiliated Dispute over Sacred Site

Matthew L.M. Fletcher

Here are the Tenth Circuit briefs in Caddo Nation of Oklahoma v. Witchita and Affiliated Tribes :

Caddo Motion for Injunction Pending Appeal

Wichita Response to Caddo Motion

Caddo Reply in Support of Injunction

Opening Brief

Answer Brief

Wichita Motion to Dismiss

Prior post here.

The Atlantic: “Will Bears Ears Remain a National Monument?”

Matthew L.M. Fletcher

Here.

Canadian Human Rights Tribunal Allows Discrimination Suit against Televising Cleveland Indians Games to Proceed

Matthew L.M. Fletcher6 Comments

Here is the opinion in Cardinal v. Rogers Communications Inc.

An excerpt:

The applicant filed an Application alleging that the respondents discriminated against him because of ancestry, colour, and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, in his Application, the applicant sought an order enjoining Rogers Communications Inc. (“Rogers”); Major League Baseball (“MLB”), and the Cleveland Indians Baseball Company Limited Partnership (“Cleveland Team”) (collectively “the respondents”) from displaying, broadcasting, communicating or otherwise disseminating within Ontario images, representations, depictions or descriptions using the word “Indian” (the “Team Name”) or any form of that name in relation to the Cleveland Team and the “Chief Wahoo” logo (the “Logo”). In addition to filing this Application, the applicant filed a complaint with the Canadian Human Rights Commission (“CHRC”).

“Judith K. Wellington: Our battle to protect sacred spaces from Trump”

Matthew L.M. Fletcher1 Comment

Here.

DOI Consultation Notice on DOI Reorganization

Sarah M Donnelly

Download(PDF): Tribal Listening Sessions on E.O. 13871: Reorganization of the Executive Branch

Acting Assistant Secretary for Indian Affairs, Michael S. Black, invites Tribal leaders to attend one of the listed listening sessions to provide input on improving “efficiency, effectiveness, and accountability” at the Department of the Interior.

DATES

Zinke Apparently Promised to Rescind the Bears Ears Monument Designation

Matthew L.M. Fletcher

Here.

“‘Spiteful and petty’: Maine governor bans signs to Obama-designated monument”

Matthew L.M. Fletcher

From the Guardian, here. 

Katahdin is the Penobscots’ sacred mountain. When you look north as the river splits into its east and west branches, you look directly at Katahdin.

Legal Planet: “Politicians and Commentators Who Criticize Recent National Monuments Are Making Up Their Own Version of History”

Matthew L.M. Fletcher

By Sean Hecht (“Go Blue”), here.

An excerpt:

But the idea that large monument designations are new or inappropriate is, much like other current right-wing narratives about the Environmental Protection Agency and other federal agencies, a false story based on false history.  Bears Ears contains tens of thousands of culturally and archaeologically significant sites.  In this case, as in others, preserving a large area of land is warranted in order to adequately protect unique ecological and cultural resources.   Beyond that, the history of the Act’s application, and the history of court decisions interpreting the Act, demonstrate that since the Act’s enactment, Presidents have lawfully designated large monuments to protect landscapes, ecosystems, and natural features as well as culturally important sites.

I haven’t done the math to fact-check the claim by Secretary Zinke that “since the 1900s, when the Act was first used, the average size of national monuments exploded from an average of 422 acres per monument.”  The claim is written so ambiguously that it may mean any number of things.  But any cursory look at the history of monument designations reveals that this claim, and similar claims by Sen. Hatch and others, are false or extraordinarily misleading.

In fact, the Antiquities Act has been used to protect enormous areas of land since 1908, when President Roosevelt designated the 818,000-acre Grand Canyon National Monument.  He also designated the 615,000-acre Mount Olympus National Monument in 1909, and the 60,000-acre Petrified Forest National Monument in 1906, within a few months of the passage of the Act.

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And from HuffPo: “Why Trump Doesn’t Have The Power To Mess With National Monuments.”

Micro-Response on the Presidential Authority to Terminate or Diminish National Monuments

Matthew L.M. Fletcher

From one of the authors of the original paper:

It is true that there have been a number of proclamations diminishing monuments in the past but none of these have been challenged in court so no court has ever passed on the legality of these actions.  Moreover, all of these actions were pre-FLPMA, which matters significantly here because FLPMA repealed the Midwest Oil decision.  A 1935 Solicitor’s Opinion relied heavily on Midwest Oil to justify proclamations that diminished monuments.  Post FLPMA, that justification is gone.

Original post here.

House Resources staff response.

House Resources PR Staff Response to “New Scholarship Arguing ‘Presidents Lack the Authority to Abolish or Diminish National Monuments’”

Matthew L.M. Fletcher2 Comments

Here (original post here):

I was just reading your blog “New Scholarship Arguing, ‘Presidents Lack the Authority to Abolish or Diminish National Monuments.’” Just wanted to send some additional info. Let me know if you have any questions!

Amending Proclamations:

  • This legal paper asserts that the President has the authority to revoke or reduce national monument designations
  • This is a great op-ed for more background: Trump Can Reverse Obama’s Last-Minute Land Grab
  • Presidents – both Republican and Democratic – have significantly reduced the size of monuments. Taft reduced one of his own designations by 95%.
    • Taft, Petrified Forest, Arizona, 25,625 acres
    • Roosevelt, Grand Canyon II, Arizona, 71,854 acres
    • Kennedy, Natural Bridges, Utah, 320 acres
    • Taft, Mount Olympus, Washington, 160 acres
    • Wilson, Mount Olympus, Washington, 313,280 acres
    • Coolidge, Mount Olympus, Washington, 640 acres
    • Taft, Navajo, Arizona, 320 acres
    • Eisenhower, Colorado, Colorado, 211 acres
    • Kennedy, Bandelier, New Mexico, 3,925 acres
    • Eisenhower, Hovenweep, Utah/Colorado, 40 acres
    • Roosevelt, Craters of the Moon, Idaho, R.O.W.
    • Roosevelt, Wupatki, Arizona, 52 acres
    • Eisenhower, Glacier Bay, Alaska, 4,193 acres (water)
    • Eisenhower, Arches, Utah, 720 acres
    • Eisenhower, Great Sand Dunes, Colorado, 9,880 acres
    • Roosevelt, White Sands, New Mexico, R.O.W.
    • Eisenhower, Black Canyon of the Gunnison, Colorado, 470 acres
    • Truman, Santa Rosa Island, Florida, 4,700 acres
  • As you can see, there’s precedent for both large diminishments (largest is 313,280 acres) and diminishments specifically in the state of Utah (3 total). The courts have generally upheld very broad discretion for the President to determine what is the “smallest area compatible” to manage the Monument – meaning they can also diminish if they believe the area originally created is not the smallest area necessary to protect the resource.

Don’t hesitate to reach out moving forward. (and Go Blue!)

Molly Block

Press Secretary

House Committee on Natural Resources