Back near the turn of the 20th century, the United States faced a crisis of disappearing Native American artifacts. So-called “pot hunters” were ravaging ancient sites across the West.
On July 29, 1903, the New York Times recounted a disturbing observation from the Chicago World’s Fair that had taken place 10 years earlier.
“From the Utah cliff dwellings, seven tons of most valuable relics were taken away for exhibition purpose at the World’s Fair, and were afterward auctioned off for curios in a Chicago shop.”
You can imagine the furor that would erupt today if someone came across tons of items stolen from an ancient Native American site at a shop in Chicago. But in 1903, the penalty for such a thing was … nothing. It wasn’t a crime.
Today it is. And yet, things have become much more complicated. Many in the West now see the law as symbolic of presidential overreach, not marauding bands of mercenaries who pillage ruins for profit.
Put in the context of the early 20th century and an expanding American civilization, it’s easy to see why Congress decided, in 1906, to pass the Antiquities Act, and why President Roosevelt was quick to sign it.
Politics takes over
In recent years, however, the law has become an example of why government decisions are best when they involve elected representatives, public input and the tug-and-pull of democracy.
In 1906, with relics and sacred sites dotting the vast and mostly uninhabited Western United States, there was a perceived need to be nimble in protecting these sites, so the law gave presidents the rare authority to act alone, by fiat.
Presidents, the law said, shall have power “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 a national monument.”
Those words remain today.
But presidents are political by nature. And so, within a few decades, the law became about politics as much as antiquities.
Two states are exempt
Wyoming got itself an exemption. Back in 1943, President Franklin D. Roosevelt declared a monument at Jackson Hole. John D. Rockefeller Jr. had offered the government a gift of 30,000 private acres he owned if it were included in an expansion of Grant Teton National Park. Congress refused to expand the park, so the president declared the area a monument, effectively expanding it anyway.
That angered ranchers and politicians, and eventually led Congress to act.
Alaska also has an exemption. President Carter declared 56 million acres a monument there in 1978, which angered Alaskans and led Congress to act again. The law specifically says monuments are to “be confined to the smallest area compatible with proper care and management of the objects to be protected…”
But it doesn’t specify what that means.
Shrinking and expanding
During his first term, President Trump shrank both Bears Ears and the Grand Staircase-Escalante Monuments in Utah. When President Biden took office, he expanded them again. Now, Trump is considering another contraction.
Critics say that would be illegal, but courts have never decided the issue. Conservatives want businesses to extract minerals from land near monuments.
I can’t imagine who would want to try, knowing the next administration might revoke leases and re-monument the land.
Solutions?
Utah Rep. Celeste Maloy has a bill that would strip presidents of this monumental power. “Unfortunately, presidents have continued to abuse that narrow authority to designate millions of acres of land in Utah and across the West without proper congressional oversight,” she told the Deseret News earlier this year.
Others have suggested keeping the presidential power, but requiring Congress to ratify it within a certain time.
Back in 1903, the Times lamented, “Today there is nothing to prevent anyone in this country from tearing down a ruin, gathering together the ancient objects which are found therein, and selling them to the highest bidder.”
That was an awful circumstance. The need to prohibit it was clear. One hundred and twenty-two years later, however, the remedy no longer works.