BY CHARLES WILKINSON
The Antiquities Act of 1906 is unusual in the circumstances of its creation, its brevity and clarity, and in the reach and force of its success. Now, President Obama is assessing whether to use this statute to create the proposed Bears Ears National Monument, a proposal that is not only unusual, but noteworthy in the ways it hews so precisely to the central, most heartfelt concerns of this great law.
In 1888, Richard Wetherill came upon fabulous Cliff Palace in Mesa Verde. A rancher from Mancos, Colorado, he was taken aback by the obvious high quality of the pots and baskets he could see right out in the open. It quickly occurred to him that this could lead to a business far more lucrative than chasing cows.
Cliff Palace, Mesa Verde National
By the mid-1890s, Wetherill and family members were shipping out tens of thousands of crates of antiquities to museums and collectors on both coasts and in between. Archaeologists, aspiring entrepreneurs, and Interior Department officials were taking notice. John Otis Brew, director of Harvard’s Peabody Museum, called the Wetherill excavations “the most far-reaching event in Southwest archaeology history.”
Theodore Roosevelt became president in 1901 and launched the Progressive Era, which remains the most productive period for conservation in the history of America, and, for that matter, the world.
Roosevelt’s Interior Department soon began working on antiquities legislation, calling in Edgar Lee Hewett, an outside anthropologist who knew and loved the Southwest, to do much of the drafting work. Hewett managed to come up with language that satisfied the various points of view as well as the unanimous conviction that something had to be done to protect these extraordinary treasures of long-ago societies. Most were located on federal public lands, so federal action was appropriate. By 1906, the bill had passed both houses.
There were three basic parts to the legislation. Scientists wishing to research would be required to obtain federal permits. Anyone who excavated, injured, or destroyed any object of antiquity would be subject to federal criminal prosecution.
The most significant provision, one that would change the world, granted to every president the authority to create national monuments. These decisions would be made by the president and the president alone— “in his discretion”—and there was no need for the chief executive to receive approval from, or even consult with, Congress or anyone else.
Hewett believed that the idea of allowing only “postage stamp” monuments to protect specific archaeological sites was too narrow. Instead, presidents would have leeway to decide the geographical limits of monuments so long as they were “confined to the smallest area compatible with the proper care and management of the objects to be protected.” Presidential proclamations were authorized to protect “objects of historic or scientific interest” located on the federal public lands. President Roosevelt signed the Antiquities Act into law on June 8, 1906.
At that moment, it was impossible to predict how significant this new law would be. After all, this Antiquities Act fit on just one page, and the key provisions concerning monument creation consisted of two sentences.
Two main problems stood out. The first was whether the act would allow large-landscape national monuments. Hewett had eliminated acre limitations—320 acres and 640 acres in previous drafts—so that the president wouldn’t be severely constrained, but the chosen language still sounded restrictive, limiting the president as it did, to monuments of the “smallest area compatible” with proper protection of the land. The second problem was what kind of land could be protected. The statutory term “objects of historic or scientific interest” sounded narrow and clinical. This could easily mean that presidents could not use the Antiquities Act to protect large, magnificent landscapes in the wide-open American West.
TR, by miles the most dynamic conservationist president, was a whirlwind of activity. He decreed 140 million acres as national forest land, three-quarters of the current Forest Service system and about 6 percent of all land in the United States. He invented—with no statutory authority—the first national wildlife refuge and issued executive orders establishing 50 more. He pushed Congress for numerous national parks. And, with one bold stroke of his pen, Roosevelt transformed the Antiquities Act into a muscular force, one of the main cornerstones of American conservation law and policy.
Standing on the South Rim on January 11, 1908, TR proclaimed much of the Grand Canyon as a national monument. Now the words of the Antiquities Act had been given meaning. “Smallest area compatible.” Does 800,000 acres give you a hint? Then Roosevelt and later presidents proceeded to create national monuments far larger than the first one, veritable “o bjects of historical or scientific interest.” TR’s words on that January day— “Let this great wonder of nature remain as it now is. Do nothing to mar its grandeur, sublimity and loveliness”—allow us to comprehend the full reach of the Antiquities Act. Ever since the Grand Canyon, presidents have created monuments because they are “wonders of nature.” The Southwest has been especially lucky with monuments (many, like the Grand Canyon, now national parks) at Arches, Capitol Reef, Zion, Bryce Canyon, Grand Staircase-Escalante, and other places. Nationally, expansive monuments have been created in Alaska and numerous locations in the Lower 48, for example, Devils Tower, Badlands, Little Bighorn Battlefield, Jackson Hole, Lassen Peak, Giant Sequoia, and Mount St. Helens.
The decisive moment came in 1920, when the U.S. Supreme Court upheld Roosevelt’s proclamation at the Grand Canyon.
The proposed Bears Ears National Monument, a landscape of 1.9 million acres, was homeland for many Southwestern tribes. In the mid-19th century, the Army force-marched tribal people out of the area and located them on reservations. But it was a place of so many homes, so many sacred sites, so much hunting and gathering, so many memories, that people continued to return.
Five tribes that have used the area since time immemorial—the Hopi, Navajo, Ute Mountain Ute, Uintah and Ouray Ute, and Zuni—formally organized the Bears Ears Inter-Tribal Coalition. After a great deal of work, on October 15, 2015, the coalition submitted a proposal to President Obama for the creation of a Bears Ears National Monument. This is the first time Indian tribes have led a proposal for a national monument.
From a conservation standpoint, this is glory country—a wonder of nature. The Bears Ears landscape holds exquisite, deep-cut canyons, arches and natural bridges, dramatic redrock formations large and small, long vistas, mountain meadows, broad mesas, and world-class climbing. Every bit the equal of Canyonlands and other storied parks and monuments, Bears Ears should have received protection long ago. Only the staunch Utah opposition to federal land set-asides has prevented it.
Bears Ears is still subject to the horrifying pot stealing and grave robbing that afflicted the area more than a century ago. National monument status will lead to more effective enforcement of the federal criminal laws.
The five coalition tribes have proposed that this new national monument be collaboratively managed by tribal and federal officials. No federal land unit has ever been managed in this fashion but this is the right time and occasion for it. Bears Ears is a perfect place for the healing that is a necessary salve to the intergenerational trauma visited upon tribes by the removal from their homelands, the damaging of their villages, theft of antiquities, and digging up and removal of human remains. Collaborative management will provide more environmentally sensitive land management and will improve the atmosphere for healing. Non-Indian people will also find the pristine, quiet, and inspiring setting of Bears Ears National Monument to be a welcoming place for their own healing, reflection, and prayers.
The tribes also envision the new national monument as a perfect place to study and practice traditional knowledge, the knowledge system growing out of their millennia of experience with the natural world and enriched by the intellectual precept of Native Americans that they are one with the natural world. The synthesis of Western science and traditional knowledge almost certainly will lead to improved land management, a phenomenon that can be carefully studied at the new national monument. Because of the increased interest in traditional knowledge in America and many other countries as well, the coalition tribes plan to establish a Bears Ears Traditional Knowledge Institute to document, study, and hold forums on traditional knowledge open to indigenous peoples and other interested citizens the world over.
The Bears Ears National Monument will rise up out of the historic thinking and presidential action that marked the adoption and implementation of the Antiquities Act of 1906. President Obama could find no better way to acknowledge the wrongs visited upon the tribes that made the law necessary and to move to even higher ground by paying high honor to the long history of the tribes of the Southwest as well as the modern revival that the tribes themselves have wrought. The result will be a luminous national monument that will be one of the most distinctive units within the entire United States public land system and that embodies America’s best traditions and values.
University of Colorado Distinguished Professor and Moses Lasky Professor of Law Charles Wilkinson is the author of "Fire on the Plateau: Conquest and Endurance in the American Southwest."
EDITOR'S NOTE: The views expressed by Advocate contributors are solely their own and do not necessarily represent the views of the Grand Canyon Trust.
"National monuments have often been challenged in court. Not a single challenge has been successful."
Also in this issue:
Why the federal lands takeover movement can’t be ignored. Read now ›