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The Antiquities Act: A Century of American Archeology, Historic Preservation, and Nature Conservation 

12-09-2015 17:35

The history of American archeology, conservation, and historic preservation often is told in terms of legal milestones, and rightly so. An environmental activist working to expand a nearby park, a historic preservationist trying to save a cherished old building, a volunteer working on a national wilderness campaign, an archeologist investigating an ancient village site in advance of reservoir construction —all are working from a solid foundation of statutory authorities that, law by law, have expanded protections for archeological resources, historic structures, and natural areas. There are many laws that mark critical junctures in our national conservation policy, yet what is arguably one of the most important of them all remains little known outside of specialist circles. That law is the Antiquities Act of 1906.

The influence of the Antiquities Act extends far beyond what is suggested by its quaint title. In truth, the name of the act is downright misleading —or at least seriously deficient, because the law has been used to protect vast natural areas in addition to the kind of well-defined archeological sites that the word “antiquities” connotes. A mere tangle of terminology? It is that, but also much more. The name signifies the controversy that has swirled around the act throughout its history: whether the scope of discretionary proclamations as exercised by various presidents has far exceeded what was intended by Congress.

The heart of the controversy is an innocuous clause at the beginning of Section 2. Here, the president is authorized to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected....”

The key phrases are “objects of historic and scientific interest” and “confined to the smallest area compatible with proper care and management.” One reasonable interpretation of these phrases would be that the act applies only to very specific natural features—a rock formation, say—and that the boundaries of the monument being created should extend very little beyond the feature itself. Another interpretation, which critics of the act have found highly unreasonable, is that an object of scientific interest can be something as vast as the Grand Canyon, and the smallest area compatible with protection and management can be millions of acres in extent. Yet it is this second, expansionist interpretation that has been adopted by a number of presidents, Republican and Democrat alike, over the past century.

The Importance of the Antiquities Act

The precedent began with the man who signed “An Act for the Preservation of American Antiquities” into law on June 8, 1906: the larger-than-life Theodore Rex, as one of his recent biographers has called him. Congress was well aware of the character of the president into whose hands it was delivering the law, of his sovereign vision of power and his willingness to wield it. And, characteristically, Theodore Roosevelt wasted very little time before making use of the Act. On September 24, 1906, he proclaimed the first national monument: the imposing monolith of Devils Tower in Wyoming. Before he left office in 1909, Roosevelt declared 17 more, and therein lies the beginning of our story. Many of them, like Devils Tower, conformed to a strict reading of the act. But several, such as the Grand Canyon and Mount Olympus, were Rooseveltian in scope.

TR’s dynamic use of the act set off reverberations that are still being felt today. It was as if he emboldened his successors to dare to match the spirit, if not the sheer volume, of his example. As a result, no other law has had such a wide-ranging influence on the preservation of our nation’s cultural and natural heritage. Why is the Antiquities Act so important?

Creation of National Monuments
As just noted, the act gives the president the power to unilaterally declare, independently of Congress, protected national monuments from tracts of existing federal public land. These monuments range from prehistoric ruins and other objects of antiquity (hence the act’s name) all the way up to entire landscapes of ecological and scientific importance, covering thousands or even millions of acres. The act has been used by 14 presidents to proclaim new national monuments or expand existing ones. 1 These monuments, which currently cover roughly 168 million acres,2 include world-class protected natural areas, many of which have gone on to receive national park status, and cultural sites of international renown. Of America’s 20 World Heritage sites, 7 originated as national monuments under the Antiquities Act:

  • Carlsbad Caverns National Park
  • Chaco Culture National Historical Park
  • Grand Canyon National Park
  • Olympic National Park
  • Statue of Liberty National Monument
  • Glacier Bay National Park and Preserve
  • Wrangell-St. Elias National Park and Preserve.3

The Study of Archeological Resources
The act also established the primacy of commemorative, educational, and scientific values for archeological resources. Section 3 of the act establishes the regulation of archeological investigations on public lands and states that such investigations are “for increasing the knowledge of [archeological sites and] ... objects, and ... for permanent preservation in public museums.”

In one long sentence, the second half of this section makes clear that archeological sites and the items removed from them are most important for what we can learn from them with proper study. The objective of archeological investigations is to study the past through historical and scientific methods, not to retrieve objects for display, exhibit, or sale.4

A Foundation for Heritage Professionalism
The act provides a legal and public policy foundation for public archeology in the United States, and for public agencies being involved in the preservation of historic places and structures. Its provisions have done much to foster the development of the professions of archeology, history, and historic preservation in the public sector in this country, and has had an important influence on anthropology and paleontology as well.

A Scientific Basis for Nature Preservation
The act was the first law to systematically enable the creation of large-scale nature reserves for scientific (rather than scenic or economic) reasons. Not only did it therefore prefigure today’s emphasis on landscape-scale ecosystem conservation by nearly a century, it remains a vital tool for such efforts. In fact, over the past 30 years practically the only big nature reserves created by the federal government have come as the result of monument declarations under the Antiquities Act.

Presidential Prerogative
The act established the power of the president to proactively preserve important cultural sites and natural areas (up to and including large landscapes of ecological value) that are threatened with degradation or outright destruction. This “one-way” power—the president can unilaterally establish national monuments, but only an act of Congress can abolish them—is an important legal doctrine that has enhanced the strength of the presidency. Simply put: In shaping public policy to protect a broad array of cultural and natural resources, the impact of the Antiquities Act is unsurpassed.

The Players

Three of the fathers of the law deserve special mention, the first two being its principal architects, and the third its precedent-setting first executor. Today the names of Edgar Lee Hewett and John F. Lacey are all but forgotten except by archeologists and historians of conservation, but their relative obscurity is undeserved. Hewett was an administrator, author, and educator as well as a field archeologist, whose mix of experience and talent enabled him to forge the compromise that became the final text of the act. Hewett was one of those invaluable behind-the-scenes brokers without whom most laws would never get through the proverbial sausage factory. The story of how Hewett managed to get squabbling factions to come together behind the language of the act is one of perseverance mixed with political and professional acumen and flexibility.

Any antiquities bill, no matter how carefully written, faced a major hurdle in the House of Representatives in the form of the Committee on Public Lands, through which all such legislation had to pass. Because the committee was dominated by members from the West who were largely wary of federal power, success for the Antiquities Act depended on the political skill of the committee’s chairman, John F. Lacey. This Iowa congressman was a major figure in conservation at the turn of the 20th century, however his personal background provides few clues as to what fueled his interest in nature protection.

No such mysteries attend our third figure, who occupies an altogether different dimension. Theodore Roosevelt is one of the legends of the White House, an iconic face on Mount Rushmore, and the historical grounds of his interest in conservation have been mapped again and again by his biographers. Much of Roosevelt’s use of the Antiquities Act was influenced by the doctrines of Progressivism, by its rock-steady faith in the capacity of professional expertise to (paternalistically) improve the American republic. This is a supremely self confident ideology, daring to do great things, one that meshed perfectly with TR’s natural bent. It goes a long way toward explaining why he had no compunction in stretching the language of the act to its very limits—and perhaps beyond.

If one agrees with the expansive, big-canvas conservationism of a Theodore Roosevelt, then the precedent he set with his monument proclamations is a bold stroke of statesmanship, something to be celebrated. But many local interests, especially in the West, resolutely decline to attend that party, for it is their dreams of commerce that are directly curtailed whenever a new monument is set aside.

Controversy Over the Years

The showdown between President Franklin Roosevelt and Wyoming politicians over the creation of Jackson Hole National Monument nearly blew apart the Antiquities Act in the 1940s. Had the presidential powers under the act been emasculated at that time, as many in and around Jackson Hole fervently wished, the most serious repercussions would have been felt two generations later in, of all places, Alaska. That is because in 1978 President Jimmy Carter used the Antiquities Act to preserve tens of millions of acres of the state as national monuments, forestalling the transfer of what was then unassigned national-interest public domain to non-conservation status.

When the act is in the public eye at all, it is because of controversies such as these. But as we’ve suggested above, the law is about much more than the proclamation of national monuments.

The law has helped create a foundation of public values for commemoration and education, as well as for heritage professionalism, and a scientific basis for nature conservation. The act has fostered the non-commercial values of archeological, cultural, and historic resources, and supported the nascent profession of archeology in the United States by providing it with an intellectual and ethical foundation of stewardship.

The Antiquities Act was not just a radical departure from previous public policy on national heritage, but a lasting one. It proved to be the direct ancestor of the Historic Sites Act of 1935 and the National Historic Preservation Act of 1966; the latter still forms the foundation of most historic preservation in America.

Some critics remind us that there have been negative ramifications of the act. Broadening the public control and ownership of ancient archeological sites has alienated native Americans from their heritage. By limited legitimate access to the investigation of archeological sites to experts, the interpretation of nonexpert Native Americans about these sites were denigrated and ignored by many. The act also set a precedent for the use of scientific, rather than scenic or economic, justifications for setting aside large protected natural areas.

Much to the consternation of some in the National Park Service, which oversees the vast majority of the monuments as units of the national park system, President Clinton assigned responsibility for most of the monuments he proclaimed to other agencies, the Bureau of Land Management in particular. Almost at a single stroke the BLM was thrust into a situation where it had to develop a new protected area paradigm that fit into its multiple use mandate—one very different from the NPS ethos. Though many consider NPS and BLM strange bedfellows, in two new national monuments they have been given shared management responsibility.

The year 2006 marks the one-hundredth anniversary of the act. The centennial affords an unparalleled opportunity for present-day stewards to reflect on its historic achievements and critique its shortcomings, to remind fellow professionals and the general public of its continuing importance, and to look ahead to its future in the 21st century.


Notes

1Confusingly, there are numerous other parks and protected areas, authorized through regular congressional legislation rather than through the Antiquities Act, that are designated “National Monument” (or were at the time of their creation). Examples include Agate Fossil Beds, Badlands (now National Park), Booker T. Washington, Canyon de Chelly, Congaree Swamp (now Congaree National Park), El Malpais, Mount Saint Helens Volcanic (managed by the U.S. Forest Service), and Pecos (now National Historical Park), among many others. Throughout this article, the term “national monument” will be used as shorthand for any park or protected area, no matter what its current designation, that originated or was expanded through the use of the Antiquities Act— thereby excluding such parks as those listed above.

2Of this total acreage, more than 89 million acres are part of the Northwestern Hawaiian Islands National Monument, proclaimed by President Bush in June 2006. The new national monument consists almost entirely of open waters in the Pacific Ocean; in fact, it is the largest marine protected area ever created. 3Wrangell-St. Elias and Glacier Bay actually are part of a single World Heritage site made up of a complex of parks, including several in Canada. 4The primacy of a non-commercial value in United States public policy for other kinds of cultural and historic resources continues from its foundation in section 3 of the Antiquities Act to the 1935 Historic Sites Act and the 1966 National Historic Preservation Act, the three most important cultural resource statutes of the 20th century.




Publication Date: Fall 2006



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Author(s):David Harmon, Francis McManamon, Dwight Pitcaithley
Volume:21
Issue:1