The American Antiquities Act, passed in 1906, marks the country’s first legislative effort to protect cultural resources. In recent years, the act has received renewed attention due to the controversy surrounding Bears Ears National Monument.
Motivation for the Antiquities Act
The Antiquities Act was motivated by a growing concern over the looting and destruction of archaeological sites in addition to an emerging national interest in Native American cultures. During the 19th century, news of the discovery of prehistoric ruins in western states led to the mass looting and destruction of these archeological sites as amateurs hoped to make a profit off of selling artifacts. By the 1880s, the American public became aware of and concerned over the ongoing vandalism of the country’s indigenous history. As no existing legislation existed to protect historical sites, these concerns led to the drafting and passing of the American Antiquities Act in 1906.
What is the Antiquities Act
The purpose of the Antiquities Act is to provide the immediate protection of cultural resources. Since congressional actions generally require a slower process then executive actions, powers under the Antiquities Act are granted to the president.
The Antiquities Act consists of three relevant statutes:
- It is illegal to destroy or remove any ruin, monument, or object of antiquity from public lands.
- The president can create protected historical or scientific sites called national monuments. According to section two, a national monument can be declared on public lands containing “historic landmarks, historic or prehistoric structures, and other objects of historic or scientific interests.” Surrounding land can be included in the national monument, as long as the parcels reserved are the “smallest area compatible with the proper care and management of the objects to be protected.” When declaring a national monument, the president is allowed to restrict/prohibit any uses of the land that would harm the protected objects.
- Permits are allowed to be granted for the examination and/or removal of ruins and objects from national monuments, as long as such actions are undertaken for the benefit of museums, science, or education.
Antiquities Act in Action
Since its enactment in 1906, 17 presidents across multiple political parties have used the act to designate 158 national monuments, as well as to modify existing national monuments over 90 times.
The act’s vague nature has also left room for individual interpretations, and in practice, the act has become an important environmental conservation tool, as presidents have used the act to protect naturally occurring objects and large swaths of land. Such monument proclamations have resulted in controversies and litigation, but courts have largely supported this use of the Antiquities Act by upholding a very broad interpretation of the president’s powers under the act.
For example, in 1908, President Theodore Roosevelt declared the Grand Canyon a national monument, which congress later transformed into a national park containing over 800,000 acres of protected land. A local mining company filed suit, claiming that canyons were not objects intended to be protected by the Antiquities Act. The courts rejected this argument, stating that the Grand Canyon was an object of “unusual scientific interest” and therefore fell under the Antiquities Act. Subsequent court cases have broadened the interpretation of the Antiquities Act to allow bodies of water, in addition to tracks of land, to be included in national monuments.
While the act has been broadly interpreted in the past, Congress has since amended the act to reduce the president’s powers, both in 1943 and throughout the 1970s. In 1943, President Roosevelt established the Jackson Hole National Monument despite vocal opposition from the state of Wyoming. Soon after, Congress passed legislation prohibiting the president from establishing further monuments in the state of Wyoming. In the 1970’s, President Carter established a many monuments in Alaska totaling 56 million acres. Opposition from many groups in the state led Congress to pass legislation prohibiting the president from reserving more than 5,000 acres of land in Alaska without the approval of both the House and the Senate.
As the three branches of government have interacted to modify and shape the meaning of the Antiquities Act, the applications and powers associated with it have changed as well.
The Current Issue: Bears Ears
Recently, the Antiquities Act has received renewed attention over former President Trump’s controversial reduction of Bears Ears National Monument. President Trump’s proclamation stated that the protected objects were not in danger and that the lands reserved exceeded the smallest area possible, which would violate section two of the act. The plaintiffs of two court cases argue that the Antiquities Act does not allow presidents to reduce the size of existing monuments. While presidents have reduced monuments in the past, the claim has never before been brought to court, so it is unknown if the courts will uphold this action. Subsequent briefs will go into details on the specifics of Bears Ears National Monument and the current controversy.
