Reckoning with History: The Antiquities Act quandary

The law has created constant tension between the executive and legislative branches.

 

Reckoning with History is an ongoing series that seeks to understand the legacies of the past and to put the West’s present moment in perspective.

Writing to support the proposed U.S. Constitution in 1788, James Madison famously said, “If men were angels, no government would be necessary.” These words of wisdom come from The Federalist, No. 51, where Madison promised Americans that three branches of government would keep each other in check and prevent the concentration and misuse of power. Madison believed that he was articulating a universal principle, but history suggests that angels and demons are a matter of perspective. Consider the Antiquities Act, so much in the news recently. President Donald Trump believes that previous executives abused this law and that it’s mainly a ploy to give “a small handful of very distant bureaucrats” control over local landscapes.

In 1906, Congress authorized the president to protect “objects of historic or scientific interest” on public lands. The Antiquities Act was specifically designed to stop the theft and destruction of Native American artifacts by pot hunters and vandals, because Congress recognized that a significant part of the nation’s public heritage — the material relics of the continent’s human history — was at risk. Just as important as the law’s purpose was its procedures. The Antiquities Act gave proclamation power to the executive branch because the legislative process is designed to be slow-moving. A sense of urgency spurred the designation of most monuments; historically, presidents have protected places facing immediate threats just in time. The act is designed to allow presidents to save endangered artifacts with a certain amount of expediency, a pace and process that the law’s opponents resent.

In 1943, for example, President Franklin Roosevelt created Jackson Hole National Monument in Wyoming (the same state where Theodore Roosevelt established the first monument, at Devils Tower, in 1906). The Jackson Hole monument connected lowlands to Grand Teton National Park to preserve public access and open space, something Wyoming politicians had blocked in 1938. John D. Rockefeller bought up thousands of private acres in the Snake River Valley and offered them to the federal government. Roosevelt accepted Rockefeller’s gift and added a sizeable chunk from the Grand Teton National Forest to create a 221,610-acre national monument.

Angered by presidential proclamation that turned some Jackson Hole land into a National Monument, Wyoming ranchers drove their cattle across the area in 1943.
AP Photo

Previously, there had been little opposition to the Antiquities Act, but this use of executive power provoked anger. The Forest Service felt robbed; ranchers felt threatened; Wyoming politicians felt betrayed. One senator, Edward Robertson, compared the designation to the attack on Pearl Harbor. Local ranchers defied the National Park Service by driving cattle across the range. Wyoming’s sole U.S. representative, Frank Barrett, crusaded against the new monument, introducing legislation to eliminate it and later holding hearings to undermine not only the Jackson Hole monument, but federal conservation in general, Bernard DeVoto wrote in Harper’s.

Meanwhile, the challenge to executive power moved from politicians and periodicals to the courts. In May 1943, not even two full months after Roosevelt’s proclamation, the state of Wyoming sued the superintendent of Grand Teton National Park, arguing that, among other things, Jackson Hole had nothing of historic or scientific interest, a charge reminiscent of some claims today about both Bears Ears and Grand Staircase-Escalante national monuments. When the judge ruled, he avoided the topic of the area’s merits, as presented by the Park Service and Wyoming, simply noting that since Congress authorized the executive branch to protect land, it would be up to Congress to de-authorize it.

The episode brought the Park Service negative publicity and eroded congressional and Western governors’ support of the Antiquities Act. After years of concentrated executive power during the Great Depression and World War II, Congress reasserted its strength. Efforts to repeal the act failed, but in 1950 Congress passed legislation that absorbed Jackson Hole National Monument into a larger Grand Teton National Park — with a provision that prevented future presidents from using the Antiquities Act in Wyoming.

Three decades later, Congress clipped the president’s wings again, this time in Alaska. When Alaska achieved statehood in 1958, the state and federal governments were forced to reckon with the new state’s vast public domain. The 1971 Alaska Native Claims Settlement Act resolved Indigenous claims and obligated the secretary of the Interior to withdraw public land for the purpose of creating national parks, forests and refuges, as well as wild and scenic rivers. Congress was required to act within five years. Interior Secretary Rogers C. B. Morton sent his recommendations to Congress in 1973, but the legislative body mostly ignored the issue until 1977, only a year before the deadline. So President Jimmy Carter and his Interior secretary, Cecil D. Andrus, grabbed the reins. Citing Congress’ failure to act, Andrus advised Carter to use the Antiquities Act to protect 56 million acres of public land across Alaska. So audacious was the scale, the president asked Andrus, “Can I do that?” Andrus assured him that he could, and they went on to designate Misty Fjords, Gates of the Artic, Wrangell-St. Elias and more national monuments.

Andrus viewed Carter’s use of the Antiquities Act as “an absolutely vital tool” to protect land while forcing the legislative process forward. Congress soon passed the Alaska National Interest Lands Conservation Act, in 1980, a law that confirmed most of Carter’s national monument designations. More important for the future, ANILCA required further executive withdrawals greater than 5,000 acres to have explicit approval by Congress, an effective brake on the Antiquities Act.

“Ambition must be made to counteract ambition,” Madison wrote to explain balancing branches of government. “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Congress did this for Alaska and Wyoming, but its monumental inability to legislate on environmental matters today has created a surge in the use of executive power, which fills the vacuum left by congressional gridlock. And this produces uncertainty, both for local land users and our system of government. While the balance of powers has been fundamental to American democracy, the practice of one president rescinding the monuments of another is surely not the system Madison intended to create.

Adam M. Sowards is an environmental historian, professor, and writer. He lives in Pullman, Washington.

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