Conflict escalates between Durango, Southern Utes over annexation (2024)

In series of publications, officials from city and tribe have fired shots at one another

The city of Durango and the Southern Ute Indian Tribe have escalated a conflict over potential annexation of land south of Durango in a series of battling newspaper columns and articles in which both governments have been accused of obfuscation and deceitful conduct.

The conflict stems from long-conceptualized plans to develop the area along La Posta Road (County Road 213). Part of the plan has been to annex private land along La Posta Road into the city limits and provide municipal services there.

However, the SUIT has objected to the annexation, some of which includes privately owned land within the reservation’s exterior boundary, and called the move an illegal attempt to take tribal land.

In a May 17 article in The Southern Ute Drum, the tribal government’s newspaper, a front-page staff report headlined “Durango’s secret efforts to annex Reservation lands” slams the city and its annexation efforts.

City Attorney Mark Morgan fired back in an opinion column published May 26 in The Durango Herald, in which he accuses the tribe of executing a “well-orchestrated vilification of Durango.”

As far back as 1997, city officials have identified La Posta Road as an area for growth and discussed the possibility of annexation. Planning began formally in 2006 and a 100-page plan was adopted in 2013. The most recent outline of plans, presented in January 2024, details the construction of over 500 housing units and 100 acres of “critically needed light industrial and commercial property.”

Whose land is it anyway, and who has control?

Land within the boundary of the reservation falls under the jurisdiction of federal and tribal law.

Control over cultural resources, some environmental regulatory responsibilities and enforcement of certain crimes falls to federal and tribal enforcement agencies within the boundaries of the reservation.

The establishment of municipal control overlapping with tribal jurisdiction complicates that equation. Some parts of the law fall to tribal and federal agencies for enforcement, while others are left to state and local departments.

Both parties acknowledge the complexity of those questions.

While city officials have argued private property owners may request annexation on their own volition, the question of private property rights is not a matter of uncertainty, Tribal Chairman Melvin J. Baker said in a written statement to the Herald.

“Property owners do not have a right to change the jurisdiction of the reservation, just like they do not have a right to decide to change what state their property is in,” he said.

The situation is akin to a private property owner in New Mexico asking to become a part of Colorado.

“New Mexico, eyeing some parcels of nice land on the border with Colorado, cannot go to the owners of those parcels and ask if they would like to be annexed to New Mexico without first asking Colorado if they would approve it,” Baker said. “The same basic principles apply to property owners who own property within the Reservation boundaries.”

Councilor Melissa Youssef said annexing private property within the reservation would not give the city ownership of that land and the city is not trying to take it.

“The city would just be bringing water and sewer to the land, if it helps the region and the area,” she said.

Baker argues that annexation is not required under state law before a municipality can provide municipal services.

Tribe takes a stand

According to the tribe’s version of events, city officials continually avoided and obscured their intentions with respect to annexation.

Tribal leaders have invoked historical wrongdoing – particularly the 1874 Brunot Agreement, which shrunk the Ute land by 3.7 million acres and was negotiated under false pretenses – and argued that taking tribal land should remain a “shameful legacy,” rather than an ongoing reality.

At a Feb. 12 meeting between city and tribal officials, city staff members indicated La Posta Road annexation plans were “on hold,” the Drum story said.

The meeting was not recorded.

However, at a Feb. 28 meeting that was recorded, Durango’s Community Development Director Scott Shine said the opposite.

“We do expect to get petitioned by the landowners in the near future for annexation,” Shine told the Tribal Council.

The tribe, at the time, felt the city “was being evasive,” according to the Drum.

On March 26, Baker sent then-Mayor Melissa Youssef a letter informing her of the tribe’s intention to oppose annexation efforts unless the tribe gave its explicit consent.

“The fact that the City has actively engaged in efforts to forcibly annex Reservation land for the City’s own economic benefit reflects the lack of respect the City has for the Tribe’s history and sovereignty,” Baker wrote in his letter to the mayor.

City officials have repeatedly rejected the notion they are trying to “take” land, and have referred back to the fact that annexation must be requested by the owner of private property, and cannot be done by force.

“To be clear, the landowners are requesting that (annexation) from the city,” Shine told tribal leaders at the Feb. 28 meeting.

It was the spirit of this statement – that landowners would petition the city to annex their land, rather than the city lobbying landowners to sign a prepared petition – that became the focus of the Drum story.

Tribal officials filed requests under the Colorado Open Records Act and examined the metadata of the responsive files. They found that draft petitions had been created by city staff members and sent back and forth between Shine and landowners.

“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,” the Drum concluded.

The city disagrees.

According to Morgan, the city attorney, the documents procured in response to the tribe’s records request are indicative of the standard process in which the city engages with landowners who have inquired about annexation.

And, Morgan said, the ongoing dialogue between the city and private landowners in the La Posta area was shared regularly “through email, quarterly staff meetings, and quarterly joint council meetings.”

‘We had to be the bad guy,’ city fires back

Mayor Jessika Buell said on Thursday the city’s plans for developing La Posta Road for light industrial use has never been a secret, and the tribe financially contributed to a 2020 sewer study on La Posta Road.

“We have secret efforts to annex reservation land? Even though the Southern Ute Indian Tribe paid for a sewer study done on La Posta in anticipation of this annexation?” she said, adding, “How is this a secret?”

She said the city is interested in the La Posta area because Bodo Industrial Park is built out and the city needs more affordable space for light industrial development. The La Posta area would be “perfect,” Buell said.

Using American Rescue Plan Act funds, the city and La Plata County began developing roads and infrastructure, and that’s when private property owners took an interest in annexation, she said.

On April 1, about a month after broaching the topic with legislators, the SUIT launched an alternative approach to the conflict by pursuing legislative action at the state Capitol.

SB24-193 says that municipalities may not annex lands within the exterior boundaries of a reservation without the tribe’s expressed consent. The bill passed both chambers unanimously and Gov. Jared Polis has until June 7 to sign or veto the bill.

When asked whether Polis would sign the bill, a spokesperson said only that he is reviewing it.

City officials say they were set up as scapegoats before the Colorado General Assembly.

“We had to be the bad guy in the situation for them to get this legislation,” Buell said.

State Sen. Cleave Simpson, who represents the 6th Senate District, which includes Durango and the SUIT reservation, was co-prime sponsor of the bill. He said he had some “angst and anxiety” around the light in which the tribe painted the city, however, the bill seemed to align with established law.

“I had seen enough information to recognize (that) I thought the city was more transparent than was portrayed, potentially, in the committee hearing room,” he said.

Buell said city officials were not given the chance to weigh in on the legislation, which she called “super unfortunate and a bummer.”

She likely would have supported the legislation.

After the tribe went to the Legislature for assistance, Morgan requested the opinion of tribal counsel as he tried to parse the legal confines of tribal jurisdiction over privately owned land.

City Council’s policy is to hear both sides of legislation before taking a position on it.

Morgan received a “cursory response,” he said, with a promise of more detailed information to come, which did not materialize for eight days.

When a detailed explanation of the tribe’s position did come, Morgan said, it was only after he had advised city staff members of his legal opinion, just days before final hearings on SB24-193.

“Your strategic and intentional mischaracterization of the city’s intentions relative to annexation was a lost opportunity for the city to support meaningful state legislation concerning tribal sovereignty and move the cooperation of our clients forward instead of backwards,” he wrote in a May 22 email to the tribe’s attorney after the publication of the Drum story.

Baker rejected that narrative, and said the tribe had attempted to explain tribal jurisdiction to Morgan for many weeks.

“Respectfully, it is just not reasonable to complain about a weeklong delay to provide complex legal information to another attorney so that they could advise their client, particularly given that they had over a year’s notice that this was an issue that would need to be addressed,” Baker said.

Morgan has offered a more nefarious interpretation.

He argued in his column published in the Herald that the tribe has a financial interest in developing Three Springs. The project is a joint venture between the city, which annexed the land 20 years ago, and the tribe. An entity of the Southern Ute Growth Fund, worth $3.5 billion, is developing the project.

Youssef echoed his point.

“It became very, very clear that the tribe had chosen this path to intentionally vilify my client,” Morgan wrote.

Baker, in contrast, said the tribe has been up front about its preference that the city focus on Three Springs.

“Development in La Posta can occur whether or not it is part of the City,” he said. “But Three Springs, which is already part of the City, and notably – not within Reservation boundaries – does require the City’s time and effort to develop.”

The path forward

The two parties are now engaged in a standoff, it seems, each waiting for the other to move on.

Buell said she hopes the city and the tribe can find common ground.

But that will require restoring mutual trust and setting ground rules for working together – ground rules such as meeting with one another to discuss potential problems before taking them to the state Legislature.

At joint meetings between the city and the tribe, she said she got the feeling Chairman Baker wanted to work out project details with the mayor, as opposed to having staff work with staff.

“I wish they would tell me how they needed to be communicated with. Because it was almost coming across like the chairman (wanted) the mayor, who was Melissa Youssef at that time, to sit down with him and talk about La Posta,” she said.

She said she doesn’t know every in and out of La Posta area progress, and city staff members are the people who can speak to those details.

Baker said the ball is in the city’s court.

The tribe accepted an invitation from the city to meet, he said, before city officials canceled the meeting.

“The Tribe and its governmental partners have worked diligently for years to cultivate trusting relationships that have produced beneficial and necessary outcomes for all,” Baker said. “As a result, we literally have dozens of intergovernmental agreements of the type we fruitlessly invited the City to negotiate. The City is the outlier.”

Youssef said the city suspended the quarterly meetings on the topic because officials lost trust in the tribe.

“The tribe has now sent multiple CORA requests to the city. We believe that they are continuing on their path of vilification and desire to smear the city, and it's hard to understand who gains in this tactic,” she said.

As for La Posta, the future of the city’s plans are up in the air.

Buell said the city will have to meet with La Plata County to determine their interest in continuing the project, and it will have to meet with the tribe to gauge its interest moving forward.

“I’m concerned about the future and that is where I think we need to focus on if we’re going to do anything in La Posta,” she said.

Based on the state legislation that could be signed any day, the breakdown of communication with the tribe and the city, and what he calls the “false allegations about the city,” Morgan described the environment for annexation as “not favorable.”

City spokesman Tom Sluis put it bluntly: “Why would the city keep banging their head against the wall?”

With annexation unlikely, Baker is emphasizing that the tribe is “happy to talk to landowners in the La Posta area about opportunities to work together for the benefit of the larger community.”

rschafir@durangoherald.com

cburney@durangoherald.com