OPINION: History of Antiquities Act is not widely known

On the eve of the 190th anniversary of the Antiquities Act, the Department of Justice Office of Legal Counsel concluded that the president has the authority to diminish or revoke national monuments. Presidents of both parties have used the statute to establish hundreds of monuments, many of which are now iconic national parks. This latest threat repeats the overused argument that monuments were not meant to protect large acreages and varied resources — an assertion that fails to consider the full history of the act’s intent.

The statute’s commonly recited background highlights archaeologists’ efforts in the late 1800s to preserve “relics.” While these concerns formed the underpinnings of early legislative efforts, other interests proved critical to the final passage of the act.

After the establishment of Yellowstone National Park in 1872, Congress had only created five additional national parks. The General Land Office (GLO) — an Interior Department agency that wielded significant authority over public lands — pressed for an executive power to create areas akin to national parks. Concerned about rapidly disappearing lands with diverse resources, including those with “scenic beauty,” “natural wonders” and “scientific or historic interest,” GLO commissioners advocated for a discretionary executive branch authority to protect such areas.

Commissioner William A. Richards worked with Edgar Lee Hewitt — an archeologist from New Mexico and the legislation’s key negotiator — to broaden the scope of the proposed law. Richards, a former Wyoming governor, sought to ensure that the statute reached beyond archeological ruins. He offered more expansive language such as “objects of historic and scientific interest,” specifically providing Arizona’s Grand Canyon and California’s land of the Sequoia “big trees” as examples.

The first national monument was neither a ruin nor a relic. In 1906, Theodore Roosevelt established Devil’s Tower National Monument to protect unique geological resources. Of his 18 monuments, 12 focused on scientific resources. Some of the earliest monuments encompassed hundreds of thousands of acres each, including Grand Canyon, Washington’s Mount Olympus and Katmai in Alaska.

In 1920, the U.S. Supreme Court addressed its first challenge to the Antiquities Act. A dispute about mining claims and tourist development at Grand Canyon — established first as a national monument — questioned whether the whole canyon could be an object of scientific interest and, thus, within the scope of the act. In no uncertain terms, the court said yes.

The author of the opinion, Justice Willis Van Devanter, had served as the U.S. Assistant Attorney General for Public Lands — the chief legal advisor to the GLO and the secretary of the Interior. His tenure there coincided with the development of the Antiquities Act. Like his contemporaries Roosevelt and Richards, Van Devanter undoubtedly understood that the Grand Canyon and other areas of scientific interest, vast if necessary, were intended to be protected by the Act.

This history may not be widely known. In 2021, the Supreme Court declined to hear a case involving the Antiquities Act, but Chief Justice John Roberts indicated a willingness to do so in the future. Using terms such as antiquities, Indigenous pottery and relics to characterize the act, his statement accompanying the denial appears not to appreciate the full history of the statute. Roberts cited Ronald F. Lee, a National Park Service historian, to relate the antiquities centric origin story. Notably, Lee’s scholarship also recognizes that the architects of the act sought broad authority to reserve a wide range of resources for public use.

Despite the title of the Antiquities Act, the drafters imbued this law with flexibility. Their prescience has preserved an irreplaceable legacy of historic and scientific resources for our nation and their intentions deserve to be remembered.