Presidential ‘superpower’: the federal Antiquities Act and its use in carving out national monuments

Q&A with Theodore Roosevelt biographer David Gessner.

(Francisco Kjolseth | The Salt Lake Tribune) While Utah's Republican leaders are united in opposing President Joe Biden using the Antiquities Act to once again expand the Bears Ears and Grand Staircase-Escalante national monuments, residents are deeply divided over the expected action. The polarization follows a pattern that has played out many times in history as presidents use the "superpower" of designating monuments under the 1906 Antiquities Act.

Last week, President Joe Biden ordered a 60-day review of the boundaries of Grand Staircase-Escalante and Bears Ears national monuments, which President Donald Trump reduced by 2 million acres in 2017. The announcement rekindled tensions in Utah, where national monument designations have been used to add protections to federal public lands for more than 100 years, often over the objections of state leaders.

In order to better understand the history and use of the Antiquities Act, we caught up with David Gessner, author of the new book “Leave It As It Is: A Journey Through Theodore Roosevelt’s American Wilderness,” by email to help put the current debate into a historical context.

The Salt Lake Tribune: Monument designations have a long history in the Southwest. In fact, the very law that allows presidents to create national monuments on federal public land — the Antiquities Act of 1906 — originated because of widespread looting of Southwestern cultural sites around the turn of the 20th century. How did the act become law?

David Gessner: Representative John Lacey of Iowa and Edgar Hewett, a charismatic, self-trained archaeologist with a gift for twisting congressional arms, were two players in the creation of the Antiquities Act. In 1902, Hewett brought Congressman Lacey west to northern New Mexico to see the remains of the ancient Indigenous civilization he had heard so much about. Lacey fell in love, staring up in awe at the beautiful stone villages tucked into the walls of sheer red cliffs. He was shown artifacts, bowls, chalices, and knives, and art painted on the walls, all of it preserved in the dry desert. After that trip Hewett, with Lacey’s help, took up the cause of protection full-time.

If it was Lacey who shepherded the act through Congress and Hewett who actually wrote it, it was Richard Wetherill who might have been most indirectly responsible for getting the act passed. The Antiquities Act grew out of a sense of threat to the prehistoric objects that required protection, and the man who embodied that threat, and who was the prototype of the kind of man it was meant to stop, was Wetherill.

Few men have had as fluctuating and volatile a reputation as Wetherill. He is now often regarded as a pioneer of modern archeological methods in the West, but to the Eastern intellectual elite of his day, and those who were laying claim to the burgeoning field of archaeology and anthropology, he was a looter, stealing and stomping on the very things they hoped to study. Wetherill, along with his brothers, had stumbled upon the dazzling cliff dwellings of Mesa Verde, and he had then dedicated the rest of his life to finding similar ancient ruins. Respected scientists would come to rely on Wetherill, and his knowledge, but the scientific world at large, which of course meant the Eastern scientific world, was suspicious of this untrained Westerner. These same scientists held the twin, and hypocritical, beliefs that the sites should not be disturbed by amateurs but that it was fine to ship the contents of these finds back east to museums.

It was the threat of these American artifacts being shipped overseas that brought true outrage. In 1893 that outrage focused on Gustav Nordenskiöld, a Swedish collector and archaeologist, who excavated more ruins in Mesa Verde, with Wetherill’s help, and shipped them out of the country. A significant number of East Coast scientists and politicians began to call for legislation that would protect these sites from plunder. The Antiquities Act was created to stop just such looting by “any person who shall appropriate, excavate, injure or destroy any historic or prehistoric ruin or monument, or any object of antiquity.”

In many people’s minds the Antiquities Act is associated with President Theodore Roosevelt, the subject of your latest book, but you didn’t mention him in your previous answer. What does the Antiquities Act allow presidents to do, and why is Teddy remembered for using it?

The act gives the executive branch full power to declare national monuments, stating that “the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”

In my book I joke about the use of the word “discretion” with the president at the time. It is a myth that Theodore Roosevelt created the Antiquities Act, but he sure knew what to do with it once it was handed to him. He started small, respecting the act’s literal wording of preserving “objects of historic or scientific interest” that should be “confined to the smallest area compatible with proper care and management of the objects to be protected.” But this is TR we are talking about; his ambition could never stay small for long. The bill passed in June 1906, and by September he had declared his first monument, Devil’s Tower in Wyoming. Three months later, he preserved two more monuments, El Morro in New Mexico and Montezuma Castle in Arizona. He started picking up steam with Arizona’s Petrified Forest, a new favorite spot of John Muir’s, which came in at 60,776 acres. That was it for 1906. He started up again in March of 1907 with Chaco Canyon (10,643 acres) and then added California’s Cinder Cone (5,120 acres) and Lassen Peak (1,280) in May. In November of that same year, he declared as monuments the Gila Cliff Dwellings in New Mexico (160 acres) and Tonto in Arizona (640 acres), and he rang in the new year with the Muir Woods in California (295 acres).

It was a pace that wouldn’t slacken right up to his last day as president, when he declared one final monument: Mount Olympus in Washington state.

(Courtesy of David Gessner) Author David Gessner stands before the Bears Ears Buttes in 2019 while researching his book "Leave It As It Is: A Journey Through Theodore Roosevelt's American Wilderness," which was published by Simon & Schuster in August.

As soon as Biden announced that he would be reviewing Trump’s monument cuts, opponents sounded off. Utah’s elected leaders called Antiquities Act designations “unilateral” examples of “federal overreach.” Others have referred to them as “land grabs.” Are these criticisms new?

The howls of protest over the declarations have almost become part of the tradition. When Barack Obama declared Bears Ears a national monument in December of 2016, the howls were deafening but in no way unusual. These were echoes not just of the Grand Canyon fight but of the howls that had been heard when FDR declared the 173,065-acre Jackson Hole National Monument in Wyoming and when Jimmy Carter declared fifteen national monuments totaling 56 million acres in Alaska and when Bill Clinton declared the 1.9 million-acre Grand Staircase-Escalante National Monument in Utah. Opponents hit the same basic themes of “arrogance,” “presidential overreach,” and the government’s “absentee ownership.”

Perhaps the most controversial, important and precedent-setting of Theodore Roosevelt’s declarations was the Grand Canyon. Roosevelt, frustrated with Congress for not declaring the Grand Canyon a national park, took matters into his own hands. Commercialism was running rampant in the canyon, and the biggest culprit was Ralph Henry Cameron, an Arizona prospector, hotel owner, and, later, senator, who for years had extorted money from canyon visitors by, among other things, setting up a gate at the top of Bright Angel Trail where each visitor had to pay a dollar (while also making them pay to use outhouses along the trail!). Fed up, Roosevelt did what he always did when frustrated. He acted.

Even for those of us who admire what happened next, it would be hard to argue that the Grand Canyon National Monument, which came in at a whopping 808,120 acres, was “confined to the smallest area compatible with proper care and management of the objects to be protected.” Cameron went after Roosevelt and the Antiquities Act in court, one of several times the act has been challenged. He kept his challenges up even after the Grand Canyon was declared a national park in 1919, and in 1920 his case was heard by the Supreme Court. Its decision, upholding the declaration of the Grand Canyon in Cameron v. United States, set the precedent, assuring this and future presidents, in the words of University of Colorado law professor Mark Squillace, “broad discretion to set the size and scope of a monument.”

Another precedent set in the Grand Canyon declaration was the beginning of a pattern of establishing a place as a national monument to save it from immediate threats and then later declare it a national park. This would become a kind of standard move through the years, especially during the halcyon days of the fledgling National Park Service in the 1920s. In this way the Grand Canyon provided a template used later in many places, from the Olympic Peninsula to the Mojave Desert to Utah’s Zion, Arches and Bryce.

In the wake of Trump’s cuts to Bears Ears and Grand Staircase, a coalition of Native American tribes and environmental groups sued his administration, claiming that presidents only have the authority to create, not reduce, national monuments. Why is the president’s authority on that matter still debated?

Donald Trump was not the first president to attempt to reduce land saved by an earlier president. Woodrow Wilson, pressed by logging and mining interests during World War I, essentially halved the controversial Mount Olympus National Monument that Theodore Roosevelt had created on his way out of office. But that case, which was not brought to court and therefore offers no precedent, is one of the only times a president significantly interfered with the work of a previous president. The reason for this is obvious. Presidents like having the Antiquities Act in their arsenal. The act is one of the few ways that they can circumvent Congress almost entirely. It is, in effect, a presidential superpower.

After the Grand Canyon, the Antiquities Act was not seriously threatened again until 1943, when the state of Wyoming argued against its use in the Jackson Hole case. Wyoming would lose that case, though its legislators would gain a conciliatory amendment to the Antiquities Act itself: no longer could any national monuments be declared in their state.

How do local opinions about monuments tend to shift over time, at least historically speaking?

Immediate opposition to the declarations of monuments is often at first most heated at the local level. Clinton was hung in effigy at the borders of Grand Staircase [after its designation in 1996]. But historians of the Antiquities Act have pointed out that this sort of outrage rarely lasts. Brigham Young University law professor and environmental law expert James R. Rasband writes: “Presidential monument-making under the Antiquities Act has yielded a familiar pattern. Monument proclamations are met by a firestorm of protest in the affected community but the protest is followed by acquiescence and then acceptance.” He continues: “Why is it that monument proclamations have so routinely brought criticism, only to see that criticism fade over time? One part of the answer is clear: a vast majority like the results and thus any squeamishness about the means is rather quickly forgotten.”

Finally, “Leave it As It Is” spends a lot of time focused on Bears Ears. What’s unique about Obama’s signature monument?

The Antiquities Act has been a marvelous tool, but our country’s thinking about American land has rarely included the original Americans. Consider the very first national monument, Devil’s Tower in Wyoming, proclaimed by Theodore Roosevelt in 1906, an almost nine-hundred-foot-tall granite monolith made famous in “Close Encounters of the Third Kind.” Devil’s Tower had long been called Bears Lodge by the Plains Indians, and was considered sacred by many tribes. Which means that in “saving” it, the United States government also claimed it. This usurpation of sacred ground would be repeated again and again in the creation of parks and monuments; lands that were places of ceremony and cultural import were claimed in the name of recreation, conservation, and science.

Bears Ears stands as an inspiring corrective to this. Having grown out of years of cultural mapping and interviews by Utah Diné Bikéyah and years more by the five tribes that would eventually make up the Bears Ears Inter-Tribal Coalition—Navajo, Hopi, Ute, Zuni, and Ute Mountain Ute—it proposes using the 114-year-old act in a new way, taking something that had been historically used to tear land away from Native peoples and using it to restore sacred land. It was thrilling in this respect. In a time of divisiveness, it seems to me a bringing together, a confluence of Native values and the best of the American park and monument tradition.

Even so, the Bears Ears proclamation fell short of what many of the advocates of the monument had hoped for: true co-management of Bears Ears by the tribes and the government. Instead, the document stated that the Secretary of Agriculture and the Secretary of the Interior would manage the monument through the U.S. Forest Service and the Bureau of Land Management, while a Bears Ears Commission, made up of a member from each of the five tribes who brought forth the original proposal, would “provide guidance and recommendations.” The commission would “effectively partner with the federal agencies by making continuing contributions to inform decisions regarding the management of the monument.”

This is fine, but true co-management would be so much better. The Biden administration — and secretary-designate Deb Haaland — can change all that. If they choose to restore Bears Ears to its original borders, and better yet if they consider instituting true co-management of the monument, the president and the first Native American secretary of the interior can make history. They can show that the Antiquities Act can be used to preserve, not usurp Native land.

David Gessner is the author of 11 books, most recently “Leave It As It Is: A Journey Through Theodore Roosevelt’s American Wilderness.” His next book, “Quiet Desperation, Savage Delight,” is forthcoming in May with Utah’s Torrey House Press.