Charles Wilkinson

Laws of the Land

Recorded: November 14, 2017

Professor Wilkinson is a foremost authority on U.S. land use laws concerning public lands and Indian lands and he is the author of several books on these legal topics of particular interest in the West. The video is divided into three short segments: federal public land laws, Indian law and policy, and water law. Professor Wilkinson shares an insightful story about the inception of Grand Staircase Escalante National Monument in Utah and inspiring stories of the resurgence of Indian nations. His brief primer on public land law, water law, and Indian law informs us with a deeper understanding of our Western land heritage and the importance of our federal laws.

Prior to joining the faculty of Colorado Law School, Charles Wilkinson practiced law with private firms in Phoenix and San Francisco and then with the Native American Rights Fund. In 1975, he became a law professor, teaching at the law schools of the University of Oregon, Michigan and Minnesota before moving to Colorado in 1987.

His primary specialties are federal public land law and Indian law. In addition to his many articles in law reviews, popular journals, and newspapers, his fourteen books include the standard law texts on public land law and on Indian law. He also served as managing editor of Felix S. Cohen’s Handbook of Federal Indian Law, the leading treatise on Indian law. The books he has written in recent years, such as 1992’s The Eagle Bird, are aimed for a general audience, and they discuss society, history, and land in the American West. He won the Colorado Book Award for Messages From Frank’s Landing, a profile of Billy Frank, Jr. of the Nisqually Tribe of western Washington. In his book, Blood Struggle: The Rise of Modern Indian Nations, he poses what he calls “the most fundamental question of all: Can the Indian voice endure?” Listen to an interview on Colorado Public Radio conducted by Dan Drayer about Blood Struggle. In his latest book The People Are Dancing Again: The History of the Siletz Tribe of Western Oregon, Professor Wilkinson writes about how the history of the Siletz Tribe is in many ways the history of many Indian tribes: a story of heartache, perseverance, survival, and revival.

Professor Wilkinson has received teaching awards from his students at all three law schools where he has taught, and the Universities of Colorado and Oregon have given him their highest awards for leadership, scholarship, and teaching. He has also won acclamation from non-academic organizations. The National Wildlife Federation presented him with its National Conservation Award, and in its 10-year anniversary issue, Outside Magazine named him one of 15 “People to Watch,” calling him “the West’s leading authority on natural resources law.” He has served on several boards, including The Wilderness Society, the Grand Canyon Trust, and the Center of the American West at the University of Colorado. Over the years, Professor Wilkinson has taken on many special assignments for the Departments of Interior, Agriculture, and Justice. He was a member of the tribal team that negotiated the 1997 Joint Secretarial Order of the Interior and Commerce Departments concerning tribal rights under the Endangered Species Act. He served as special counsel to the Interior Department for the drafting of the Presidential Proclamation, signed by President Clinton in September 1996, establishing the Grand Staircase-Escalante National Monument in Utah. In December 1997 Agriculture Secretary Glickman appointed him a member of the Committee of Scientists, charged with reviewing the Forest Service planning regulations. Professor Wilkinson acted as facilitator in negotiations between the National Park Service and the Timbisha Shoshone Tribe concerning a tribal land base in Death Valley National Park; in 2000 Congress enacted legislation ratifying the resulting agreement. He also served as facilitator in far-ranging negotiations between the City of Seattle and the Muckleshoot Indian Tribe.

Charles Wilkinson:   It developed really into three areas that sometimes you can say make up the law of the American West. Public lands, Indian law and policy, and then water law.

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Part 1 – Public Land Law

Charles Wilkinson:   Now, I have one thing I would like to speak to, and that’s the Grand Staircase Escalante National Monument in Southern Utah. So I’m writing a book on the Southwest in 1996, and the phone rings and its John Leshy, the solicitor of the Department of Interior. And John said, “I’m calling on something that’s completely secret and must remain secret.” And everybody knows there are no secrets in Washington, right? This was a secret in Washington for four months. This was a secret that was kept. So he said, “We are probably going to do a national monument in Southern Utah.” And the President, under the Antiquities Act of 1906, has the authority to create a national monument. Same thing as national parks basically. The Antiquities Act was written by an anthropologist who was concerned about ancestral Pueblo Indian villages. Who was the president? Teddy Roosevelt. We have two groups of conservation presidents, Teddy Roosevelt and everybody else is the second group. And he set aside ¾ of the national forest, 7% of the whole country as national forest lands, a 150 million acres. Just drawing maps, I don’t think they had felt tipped pens back then, but they would have been green and they would have just been going like this, and then the president stamping them. So he goes to the south rim of the Grand Canyon. His friend, John Muir told him to go there, he had to see it. And he goes out there on the south rim and he says, “I hereby declare it a national monument.” Eight hundred thousand acres. So now, anything’s possible.

Huey Johnson:   Yeah.

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Charles Wilkinson:   John knew how I loved the Antiquities Act and all the history that’s come out of it. He said “We are thinking of making a very large national monument and I’m wondering if you would like to join a secret group of 8 people who are drafting up the monument?” And so I thought to myself, how am I going to try and get this book finished? Trying to get this book finished. So I said, “Well, let me think about it. I’ll get right back to you.” And I walked downstairs, and there’s Anne. So I say to Anne, “John Leshy just called and asked if I could be in a secret committee to draft up a 2 million acre national monument down in Southern Utah,” and I said, “Do you think I should do this? I’ve got my book.” And Anne just said, “Charles, have some perspective.” So I agreed to do it. And oh my God, was it fun. I ended up with the role of doing the draft to create the monument, you know, what a dream that was. I mean, oh boy, did I love that. I sat down at that desk, or I stood up at that desk and I can still feel an ink pen, writing it out real carefully, and that went over to the White House as the proposed proclamation. It had to be secret because Utah hates public lands. Now, some of the biggest parts of Utah’s economy are these fantastic national parks, but that doesn’t stop Utah from hating public lands. If it had gone public, Oren Hatch would have started World War 3.

Huey Johnson:   Yeah.

Charles Wilkinson:   And would have shut down appropriations to the [National] Park Service, to the BLM, to the White House if he could get away with it, and Utah generally would explode, which it did as soon as this happened. The story is, the way it got signed seems to be that Clinton and Hillary and Chelsea were up in Jackson Hole. They stayed, you know, in some very, very rich family’s home in Jackson Hole and had the whole house to themselves. Chelsea is in the kitchen, and Clinton is using the kitchen table to do work on and he has all his papers laid out. And he comes downstairs, and Chelsea says to him, “Dad, what’s this?” And it was our proclamation that had been sitting for 6 weeks. And so Clinton said, “Ah, it’s a National Park. I just think its way out in the desert.” And Chelsea says, “Dad, this is where I went backpacking last summer, and it’s that great country that I’d been telling you about. Dad, you’ve got to sign this.”

Huey Johnson:   How nice.

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Charles Wilkinson:   The Grand Staircase Escalante National Monument in this glory country in the southwest, it’s the largest monument in the lower 48 states. And Clinton then proceeded to do 22 more. He loved it. And that was one of the most exciting days to my life because environmentalists had just been dead in the water after the 94 election, but now, something really exciting happened.

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[Text in Video]

December 4, 2017 President Trump slashed the Grand Staircase Escalante National Monument by 46% and the nearby Bears Ears National Monument by 85%. These orders mark the largest reversal of national monument protections in U.S. history.

This attack on public lands has unleashed a torrent of litigation.

Charles Wilkinson is advising five tribes who are filing lawsuits against the administration. He said the decision is “an attack on a significant part of the foundation of American conservation law.”

President Trump is currently reviewing 26 other national monuments for potential reduction.

Part 2 – Indian Law

Charles Wilkinson:   A highly significant development has involved Indian tribes, and the tribes started a revival in the early ’70s that has been highly successful, and that can be mentioned in the same breath as the Environmental Movement, Women’s Movement, and the Civil Rights Movement. And it’s been the tribes themselves, and they have made their reservations into true homelands where they are governed by tribes. And the progress has actually been dramatic when you measure it over time. We’ve still got high unemployment in Indian country, it’s probably 25%, but it was 60%. Sixty percent, and they have brought it down and they have improved almost every indicator, health, education, land protection, housing, all are going in the right direction. Diabetes is increasing, but everything else is improving. And natural resources is a huge part of that and I want to mention two examples. One is the Pacific Northwest, and the tribes in northwest Washington brought U.S. against Washington, the Bolt Decision. It came down in 1974. That held that the treaties guaranteed to the tribes 50% of the marine resources, 50%. The tribes have a right to take that amount. What was as, or more important, was that Judge Bolt recognized them as sovereign government, just like John Marshall had back in the 1830s, and so the tribes began co-managing with the United States and the states. And so right away, they had to establish codes, and enforcement systems, and courts to handle the cases, and have scientific staffs. And so today, you have in the Northwest, one of the best environmental situations we have in the country, which is co-management among those three agencies. And today, in the state of Washington, the tribes have slightly more fishery scientists than the state of Washington does.

Huey Johnson:   Wow.

Charles Wilkinson:   And slightly fewer than the United States of America stationed in Washington. And so the tribes on policy, on science, on dam removal, the big dams that have come out. Speaking of water, the Elwha River, the first big dam to come out in the west. The [unintelligible] Tribe started that and followed through on it. And then in Oregon, you followed that also. The Klamath River and the Klamath River Restoration Act.

Huey Johnson:   Yeah, that was good.

Charles Wilkinson:   And the Klamath and Yurok tribes are right up front and their scientists play a big role. So, take that situation and then generally the tribes as part of their revival have added to their reservation lands, and all time low point around 1962 with 52 million acres. Today, they’ve got 66 million acres. A net increase of about 15%, and that increase is twice the size of the state of Massachusetts. It’s so counterintuitive, you think well tribes must be losing land; they’ve always been losing land. But now, they are bringing it back. And so we’ve got 66 million acres that’s about the size of the state of Colorado that is now under Indian authority. They are the primary decision makers. And we’re getting good land practices coming out of there; the BIA used to handle logging and it was a disaster.

Huey Johnson:   I remember.

Charles Wilkinson:   They just over cut all over the place, and tribes now have got good sustainable practices. Several tribes refuse to mine; they think it’s an insult on the earth. Others do mine. Others have casinos but you’ve got a good land practices on the reservation lands today and it’s an important part of national environmental policy.

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Charles Wilkinson:   Our laws are better. They have gradually improved.

Huey Johnson:   That’s good to hear.

Part 3 – Water Law

Charles Wilkinson:   And the first instream flow law was in ’55, Oregon adopted it and it was not a strong law. Until ’55, the rivers were just wide, open for individuals to make the choice of whether they wanted to divert water or not. We just saw rivers as machines for industry. The most desirable thing was to dry it up, that’s why we have streams and rivers, are to dry them up and the west really, basically that was the effect. Now, every state has an instream flow law of some kind. There are some federal instream laws, mostly under the Endangered Species Act. California, Colorado, Washington, Montana have instream laws that really are rigorous and administered rigorous, and now we get climate change. The snow packs aren’t there. We’re getting the runoff at the wrong times of year; too early, the water comes down early and it’s warmer anyway and then it stays warmer when the streams are smaller and they’re getting hit by the hot sun. We are so used to building our way out of problems and California’s doing it, they’ve passed two big bond issues recently.

Huey Johnson:   Yeah.

Charles Wilkinson:   To build more. Colorado, where we really pretty much stopped dam building but were going to put in a couple of dams, but now it’s long distance piping of water instead of dams, but it takes the water out of the stream anyway. We also are doing some, all around the west to different degrees, work on conservation of water but the truth is, we are just at the beginning. We have the laws that are impressive, hugely impressive when compared to our history, which had no conservation requirements. And so now we have some pretty good conservation requirements but we can go so much farther, but we don’t want to. People in the cities don’t want to do it.

Huey Johnson:   At least California didn’t.

Charles Wilkinson:   Yeah. Anybody who gets out and looks at once wild rivers and rivers that are still in good shape and you realize the stresses on those rivers, and then you see some rivers that have been dried up, streams that have been dried out for all or part of the year. Anybody reacts to that but most people don’t get to see that.

Huey Johnson:   Yeah.

Charles Wilkinson:   And think about it so it becomes the discussion over instream flows. Well, that doesn’t resonate with people. Our instincts to build are overruling instincts we really don’t have, which are to be more careful with water. We’re making some progress on the latter, but if we really decided to do it, it would be great and we could accomplish a lot. This is, lots is going to be decided in the next 10 or 15 years.

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