It was over 140 years ago that Felix Brunot, Chairman of the Board of Indian Commissioners, made promises and assurances to the Utes about protecting tribal interests while secretly hiding his intentions to turn over 3.7 million acres of land reserved to the Utes in the Treaty of 1868 to mining interests. Despite evidence of his wrongdoing, Congress approved the agreement he reached in 1874, resulting in the loss of Ute land to state jurisdiction.
The Southern Ute Indian Tribe has often faced attacks on its jurisdiction since that time in an effort by non-tribal members to undermine the Tribe’s sovereignty and economically benefit non-Natives. Few of those have been as brazen as that of Brunot. However, this year the Tribe experienced another attack with the actions of the City of Durango (City) in attempting to annex Reservation land, which Tribal Council swiftly addressed.
The City of Durango has tried to distance itself from any wrongdoing with respect to the attempted annexation. On April 22, the City staff, at a special meeting, made a presentation of what they described as the background of the annexation process to the public. It was less than forthcoming and City staff emphatically asserted they had adequately consulted with the Tribe. We believe it is important for everyone to know exactly what City employees were doing to secretly annex Reservation lands since they have chosen not to honestly disclose it themselves.
For many years there have been discussions about economic development along La Posta Road. The Tribe has looked into developing this area of the Reservation. The key to economic development in this area is collaboration. In the past we have worked together with La Plata County, the Town of Ignacio, and the State of Colorado on projects that are important to the wellbeing of Reservation residents. But in doing so we respect each other’s sovereignty.
Last year we learned that Durango was taking a different approach. Rather than collaborating with the Tribe, it was discussing annexation of Reservation lands in the La Posta area. We have a strong government-to-government relationship with federal, state and local governments. The City Council for Durango had never met with Tribal Council to discuss annexation plans.
Therefore, Tribal Council requested a meeting, which was held in March of 2023. That meeting was tense due to the clear disregard for tribal sovereignty. Chairman Melvin J. Baker and Tribal Council expressed their displeasure with the lack of communication from the City on the annexation issue, as well as other key issues including plans to place a pipeline to Lake Nighthorse where the water interests are principally those of the Southern Ute and the Ute Mountain Ute Tribes and the City’s interests are minimal. With respect to annexation, Tribal Council and supporting staff explained to the City the legal concerns over annexation and the existing jurisdictional complexities on the Reservation. These complexities would be increased by another jurisdictional authority entering the Reservation boundaries, especially by one that does not have Tribal interests at its forefront.
Barbara Noseworthy, the City’s Mayor at the time, acknowledged the lack of communication with the Tribe on these and other material issues and apologized to the Tribal Council for that shortcoming. She assured the Tribe that Scott Shine, the City’s Community Development Director, would provide monthly updates regarding the La Posta project.
What the Tribe actually received from the City of Durango was largely silence. Shine never provided his updates. Despite receiving copies of the requested governmental agreements with the State and County, he did not follow up with the Tribe for further discussion. Instead, he simply indicated he had not had a chance to review them. In January of 2024, Tribal staff set up quarterly meetings with City staff to discuss ongoing issues. The first was held in February and again the concerns over annexation were expressed. The City staff indicated those plans were on hold.
Despite these assurances, it appeared the City was being evasive. The Tribe began to receive indications that the City of Durango was moving forward with its annexation plans. Therefore, on March 26, Chairman Baker wrote then City Mayor Melissa Youssef, insisting that the City not move forward with its plans to annex Reservation lands. As Chairman Baker expressed in that letter:
“On behalf of the Tribal Council, this letter is to make clear to the City of Durango that the Southern Ute Indian Tribe intends to oppose any efforts by the City to annex lands within the exterior boundaries of the Southern Ute Indian Reservation without our explicit consent. The City’s effort to take tribal lands is part of a shameful legacy that should have no place in our current time. We will no longer tolerate broken treaties and promises …
Efforts to take Reservation land should be an artifact of history. It is troubling that today, we have to fight such efforts by the City. To be clear: we will continue to protect what remains of our homeland from annexation without our consent. We will not tolerate any violation of our Treaty rights. We ask that you respect the Tribe’s sovereignty as we respect yours. We ask that any further plans for annexation of Reservation lands immediately cease.”
Mayor Youssef chose not to respond to the Chairman. Instead, she sent a letter to various government officials, insisting that the City had no plans for annexation and had prepared no petitions for annexation. Instead, it was simply performing due diligence in case there was an annexation request from a landowner. A few excerpts from that letter are helpful.
“… the City of Durango has not acted to annex the La Posta Road area forcibly. It has only been performing due diligence to determine what annexation may entail, including what infrastructure may be required if the City is presented with a petition to annex the area…
The City of Durango is not forcibly annexing this area, the City of Durango has not drafted a petition for annexation for the property owners …”
The Tribe does not know who prepared this letter for Mayor Youssef to sign, and what she had been told in advance of signing it. But the statements made in the letter are inaccurate.
As a public government agency, the City of Durango is subject to the Colorado Open Records Act, also known as CORA. This Act requires that the City produce certain documents upon request. Tribal Council authorized a CORA request of the City related to its plans on La Posta Road. The documents received as part of that request revealed that the City was not simply performing due diligence in case it received a landowner request for annexation. It was actively pursuing annexation of Reservation lands with blatant disrespect for Tribal Council’s authority and the Tribe’s sovereignty.
As shown in City documents, in 2013, the City prepared its La Posta Road Area/District Plan. In that 101-page document it set forth its agenda “for economic growth through commercial, light industrial and industrial businesses, as well as different types of housing.” In the La Posta Plan, the City stated: “As part of the planning process, the City made it clear that they would consider annexation of some or all of the La Posta Road Area in the future.”
Noticeably absent from the City’s plan is any discussion of the Tribe or the Reservation, despite the fact it was talking about development within the Reservation boundaries. This was not unintentional. We discovered that the City deleted any reference to the Tribe or the Reservation in preparing the Plan. Below is an example where the City staff removed any reference to the Tribe before the Plan was finalized:
The La Posta Road Area (Exhibit A) is located at the southern edge of the City of Durango, encompassing the lands on either side of La Posta Road (County Road 213) from the Rivera Bridge south to the point where the Animas River swings back to meet the road across the Animas River to the northern boundary of the sovereign lands of the Southern Ute Indian Tribe. The area includes the land known as Koshak Mesa, between La Posta Road and the Animas River, the Animas Airpark Mesa to the west of La Posta Road and the land west of the airpark up to the public lands that stretch up to Lake Nighthorse reservoir.
The documents also revealed that the City had a timeline for annexation identifying when petitions would be drafted, signed and presented to City Council.
Nowhere in that timeline is there a time period for consultation with the Tribe.
Emails produced in response to the CORA request identified that the City’s Planning Office, the City attorney, and Mr. Shine were involved in the drafting of the petition for annexation in March 2022.We have redacted email addresses and names of individuals who have not publicly addressed this issue to protect privacy:
And in July 2023, Scott Shine communicated to landowners his intention to shortly present the petition for them to sign:
In addition, on March 20, 2024, Shine was communicating directly with an attorney for landowners about what to include in the annexation petition and how to avoid a longstanding intergovernmental agreement the Tribe had entered into with La Plata County. The City attorney was included on those communications.
Additionally, the Tribe discovered the draft petitions. The metadata shows the document was created by the City of Durango:
What this portrayed is active participation by City staff in efforts to annex Reservation lands as late as March of this year, information which they withheld from Tribal Council. These documents show that the then Mayor Youssef’s statements in her March 27 letter that the City was only “performing due diligence to determine what annexation may entail, including what infrastructure may be required if the City is presented with a petition to annex the area…” and that “the City of Durango has not drafted a petition for annexation for the property owners” are manifestly untrue.
When confronted with these glaring inconsistencies, the City attorney characterized them as “wordsmithing.” In Indian Country, and throughout the rest of the country, words have meaning, and these inconsistencies are characterized quite differently. The City staff who were present at the April 22, 2024, special meeting never disclosed these documents or similar communications that were identified in the CORA request to the City Council or the public. This is not “wordsmithing.” This is holding the City of Durango accountable for its dishonesty.
Tribal Council’s response to the City was prompt. In a letter to Mayor Youssef on April 2, Chairman Baker emphasized that the Tribe would do what was necessary to protect its sovereignty and asked her to immediately withdraw her March 27 letter. As he explained:
“The Tribe will stand firm in protecting its lands and sovereignty. We will protect the health, safety, and welfare of our tribal members and future generations. Your staff’s conduct has been deceitful and dishonest. The responsibility lies with you to take the necessary action to address and rectify the issue and repair the relationship with the Tribe.”
The City’s conduct goes beyond simply misrepresenting its intentions. It was discovered that the City Attorney’s office had drafted and circulated a legal opinion insisting that the Tribe had no jurisdiction over its own Reservation land outside of its own trust land. Absolutely no legal authority was cited in support of this position as there was none. The Tribe responded with a lengthy discussion of the law as it applied to the Tribe’s jurisdiction on the Reservation and explained that the City Attorneys’ legal analyses was “incomplete and inconsistent with well- established precedent and principles of Federal Indian Law, interpretations by the Attorney General’s office, and decades of practice among federal, state, tribal, and municipal authorities on the Reservation.” But it reflected a far more important concern. Not only were City employees actively engaging in the annexation of Reservation lands, but they were also questioning the Tribe’s treaties and longstanding legal principles establishing the Tribe’s sovereignty and right of self-government within the Reservation boundaries.
Tribal Council offered to discuss the matter with the City Council, which was refused. This left the Tribal Council with a number of options. As the first option, the Tribe authorized legislation, Senate Bill 24-193, with bipartisan support in the Colorado legislature, ensuring there could be no annexation of Reservation lands without the Tribe’s consent. Vice Chairman Lorelei Cloud testified on April 17, 2024 in support of this legislation at the first hearing in the Colorado Senate before the State, Veterans and Military Affairs Committee. In a forceful speech, she declared, “We have come too far too far to be faced again with threats to Reservation lands and the Tribe’s treaty protected rights. In 2024 we should not be experiencing challenges to our Reservation and our sovereignty from a hostile City government. These days should have long passed.”
SB 24-193 passed unanimously in the Committee and the full Senate.
It then went to the Colorado House State, Veterans and Military Affairs Committee. A hearing was held on May 2, 2024 at which Chairman Baker testified. Once again, the testimony was clear and direct, identifying the contributions made by the Tribe to the community and the disturbing conduct of the City staff. Chairman Baker expressed, “Reservation land is not just property, it is sacred. In Colorado, we collaborate while respecting each other’s sovereignty. Our relations with our community members have shown that economic development does not require annexation. This legislation reaffirms what should be obvious – that a Tribe’s Reservation may not be annexed without the Tribe’s consent.”
The bill passed the Committee unanimously and has now passed the full House with no objection. It is proceeding for consideration by Governor Jared Polis.
State legislators across the political spectrum united to condemn the City’s blatant disregard for Tribal self-determination and sovereignty.
Tribal Council continues to consider additional options. Tribal leadership will do what is necessary to protect its sovereignty, the safety of Tribal members, and will never allow outside entities to seize Reservation land like in the now disavowed federal policies of allotment and assimilation.
In spite of historically tense relations between the City of Durango and the Tribe, the Southern Ute Indian Tribe has taken the high road and been one of the largest investors in the City’s future, investing over $130 million in residential and commercial development. To address the housing crisis, the largest residential development in Durango was started by the Tribe. Phase II of that development has been sitting on the City Planner’s desk for years with little action. The land where Common Spirit Mercy Hospital is located was donated, in part, by the Tribe. In addition, the Tribe donated millions of dollars so that the hospital could open its doors and obtain life-saving equipment. During COVID, when most employers shut their doors, the Tribe, as the largest employer in the County, continued to pay employees even though they could not work because of the devastating effect not doing so would have on their families and the local economy.
The Tribe has consistently demonstrated commitment to southwest Colorado’s well-being. From providing crucial water and wastewater infrastructure for residents to partnering on a new housing complex to address affordability, the Tribe prioritizes the community’s needs.
Recognizing the lack of broadband access, the Tribe spearheaded an $80 million initiative to connect Reservation residents and collaborate with surrounding counties to expand regional connectivity. The same collaboration can exist with respect to La Posta Road. Economic development does not require annexation. In Colorado we respect each other’s sovereignty and work together.
The Southern Ute Indian Tribe has effectively collaborated as economic partners with our adjoining communities. The City’s underhanded action is an outlier and, unfortunately, has increased tension in our community. Moreover, it has led the Tribe to evaluate whether continuing to invest its resources with governmental entities, like the City of Durango, that do not respect the Tribe’s sovereignty is appropriate. If this relationship is to be repaired, the City Council must take accountability for its actions and change course. The Tribe is always willing to work with honest partners that respect tribal sovereignty.