What The History Of The Antiquities Act Could Mean For The Future Of Bears Ears
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.
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.
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%.
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?
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.
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
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.”
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.