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The Southwest Utah Bureau is based in the St. George area, and the reporting focuses on local government, public lands and the environment, indigenous issues, faith and spirituality and other topics of relevance to Utahns.

What The History Of The Antiquities Act Could Mean For The Future Of Bears Ears

Josh Ewing Sand Island Bears Ears KG.jpeg
Kate Groetzinger
Friends of Cedar Mesa Director Josh Ewing points to petroglyphs at Sand Island Campground. The area was taken out of Bears Ears National Monument when the boundaries were redrawn in 2017.

Just five miles west of Bluff in southern San Juan County, there’s a campground called Sand Island. It’s nestled between a steep cliff and the bank of the San Juan River, and it’s home to some of the oldest rock art in America.

Renee Bright
President Barack Obama designated roughly 1.35 million acres in San Juan County as Bears Ears National Monument in December 2016.

Josh Ewing is the director of a Bluff-based conservation group called Friends of Cedar Mesa, and he’s an expert on the petroglyphs.

“We started off walking by some Ute imagery, [it’s] maybe 150, 200 years old. We’re already here at 4,000 to 8,000 years old. And we're headed toward 14,000 years old,” he said.

Ewing said archeologists have always known the rock art at Sand Island is special. The area was included in a 1904 map of potential monuments in the Southwest drawn by an archeologist named Edgar Lee Hewett.

Hewett also drafted the Antiquities Act, which gives presidents the power to create national monuments.

“So the guy that was arguing for the Antiquities Act had a dot on his map that was saying this area needs to be protected,” Ewing said.

Hewett’s monument suggestions, including the “Bluff District” in Southwest Utah, were submitted to Congress in 1906 by the sponsor of the Antiquities Act.

Edgar Lee Hewett 1904 Bears Ears Map.png
Edgar Lee Hewett
Courtesy Friends of Cedar Mesa
The Bluff District is partially shown on this map drawn by Edgar Lee Hewett. It includes several dots, each one signifying an archeological site. Present-day Sand Island is the dot just to the left of the town of Bluff.

The Best Size For Bears Ears?

The Antiquities Act passed in 1906, but Bears Ears didn’t become a monument until over a hundred years later.

President Barack Obama included Sand Island in the 1.3 million-acre monument he created in 2016. But in 2017, President Donald Trump took Sand Island out of the monument, along with thousands of other archeological sites, when he reduced its size by 85%.

Moon House Bears Ears EC.jpeg
Howard Berkes
Moon House is an archaeological site on Cedar Mesa. It is the only site in Bears Ears National Monument that requires a permit.

That was a mistake, according to Ewing. He said if anything, Bears Ears should be larger.

“You know, when you have a landscape that's so beautiful as this, with so much geology, so much science, and then you have the cultural [importance] on top of it, it starts to become not really practical to make it small,” he said.

President Joe Biden promised during his campaign to expand the monument, and his administration is currently reviewing its boundaries. But Cox has said the state of Utah plans to sue if Biden restores Bears Ears.

He argues that large national monuments hurt rural Utahns by reducing economic development opportunities and that presidents shouldn’t be able to create them.

“Are we going to have the ability for presidents to lock up millions of acres, or are we going to force them to actually follow the Antiquities Act and make those areas as small as possible to protect the actual antiquities?” he said at a news conference in April.

Cox’s comments came just two weeks after Chief Justice John Roberts wrote a memo that essentially says presidents have abused their power by designating too-large monuments. The memo gave fuel to Cox’s claim that Bears Ears is too big. But that could still be a hard case to win, according to experts on Bears Ears and the Antiquities Act.

What’s In The Antiquities Act?

Rock art depicting human figures with square bodies on a red rock wall.
Creative Commons
Rock art in Grand Gulch on Cedar Mesa. Most of Cedar Mesa was removed from Bears Ears National Monument by President Donald Trump.

David McDonald is an attorney with a conservative non-profit called the Mountain States Legal Foundation, and he agrees with Cox and Roberts.

“There are specific places and objects that can be protected. The problem is, you can't use that as an excuse, as a smokescreen, for doing what's essentially a stealth national park,” he said.

According to McDonald, Congress passed the Antiquities Act so that presidents could move quickly to protect archeological sites from looting, not protect large amounts of land.

“It was always intended to function as a limited — both in time and in space — temporary kind of stopgap until Congress could figure things out,” he said.

Renee Bright
President Donald Trump reduced the size of Bears Ears National Monument to roughly 202,000 acres in December 2017.

As proof, he pointed to the fact that early versions of the Antiquities Act include size limitations for monuments. But those didn’t make it into the final draft.

Instead, the Act says monuments can be created to protect “objects of historic and scientific interest,” and that they must be “the smallest size compatible” with the protection of those objects.

That leaves a lot of room for interpretation, according to John Ruple, a law professor at the University of Utah and a board member of Ewing’s conservation group.

“It's the president's discretion of what those objects are and what that scale is,” he said. “And no court has ever disturbed a president's conclusion on those grounds.”

He said the Supreme Court has been extremely liberal in its definition of what constitutes an object. For example, it ruled in 1920 that the Grand Canyon is an object. And in 1976, it said the same thing about a habitat for a rare species of fish in Death Valley National Park.

“So we have the Supreme Court twice saying that landscapes are objects and that ecosystems are objects,” he said.

In order to prove Bears Ears is too big, Ruple said, lawyers would have to prove the landscape within the monument is not an object of scientific or historic interest.

An Object Of Interest

Jim Allison Montezuma Canyon Bears Ears KG.jpeg
Kate Groetzinger
Archeologist Jim Allison led an excavation project in Montezuma Canyon in 2019. The archeologically-rich area is included in an early monument proposal.

That’s a difficult argument to make, according to Jim Allison, an archaeology professor at Brigham Young University. He said Bears Ears is a landscape of interest to both scientists and Native Americans.

“One of the reasons why the landscape itself, I think, is an object of archeological interest is that we can see these patterns change through time … where people were living, the size of sites, all those kinds of things,” he said. “But we can only see them at the landscape scale.”

Renee Bright
The Zuni, Hopi, Ute, Ute Mountain Ute, and Navajo tribes are asking President Joe Biden to enlarge Bears Ears National Monument to 1.9 million acres.

And, he said, the landscape is also important to the Navajo, Hopi, Zuni, and Ute tribes whose ancestors lived there.

“If the tribes are interested in the area because of the history of the area and their associations with it, does that not make it an object of historic interest?” he said.

He compared it to the famous Hole-in-the-Rock Trail, a 180-mile route that Mormon settlers used to reach Bluff from Escalante in the early 1900s.

“In some places you can see the trail, and in other places it's just kind of a guess where it went,” Allison said. “But I think that a lot of the white people in San Juan County would argue that that whole trail ought to be seen as an object of historic interest.”

And it is: the trail was added to the National Register of Historic Places in 1982.

Allison said Bears Ears deserves the same kind of protection. And since the monument proposed by the author of the Antiquities Act covered a huge swath of San Juan County, he said it’s hard to argue that’s not what Congress intended.

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