Land Management Problems
Hewett, with his western experience, was for a long time almost alone in recognizing both the nature of the federal landholdings and the importance of the land-managing agencies (Hewett 1905c: 593). Early on he noted that while "public land" and "public domain" were used in the vernacular to refer to government land, the legal system restricted the meaning of those terms to the unappropriated lands available for entry under the Homestead and other acts. Indian reservations, forest reserves, and military establishments were not considered "public lands" (Hewett 1905c: 594; Lee 1970: 74, p. 240). To solve this problem, Hewett inserted the phrase "lands owned or controlled by the Government of the United States" in Section One of his draft. He also emphasized the role of the land-managing agencies. "Custodianship of antiquities," he stated, belonged "in the departments having jurisdiction over the lands on which antiquities are situated, and…the protection of said antiquities by said departments should be made obligatory" (Hewett 1905c: 604). The passage of the Forest Transfer Act in 1905 at the very end of the 58th Congress helped to force attention on land management matters. This act, on which Lacey had been working since 1896, moved the responsibility for the nation's forests from the Department of Interior to the Department of Agriculture, fulfilling a long-time dream of Gifford Pinchot of the Bureau of Forestry (Lee 1970: 67, p. 236; Hewett 1905c: 593, 1905d: 164).
This change in land jurisdiction meant that the ruins were now under the custodianship of three cabinet officials: the Secretaries of the Interior, Agriculture, and War. It invalidated Section One of the AIA-AAA draft that gave all authority over ruins to the Secretary of the Interior (Hewett 1905f: 397). The removal of that section made it easier for Hewett to transform the earlier draft and move it in the new direction. Furthermore, neither the Smithsonian Institution nor its Bureau of American Ethnology were land-managing agencies, although Hewett had earlier suggested to Holmes that the protection of antiquities should be a BAE responsibility (Hewett to Holmes, 29 September 1903, NAA). Hewett was able to place the responsibility on the land managers, simplify the role of government, and alleviate some of the fears of the academic archaeologists by removing all reference to the Smithsonian and BAE from the bill. The advisory role of the Smithsonian was preserved by its inclusion in the rules and regulations for the Antiquities Act (Hewett to Holmes, 3 July 1906, NAA).
Commissioner Richards, however, was uncomfortable with the deletion of a role for the Smithsonian. He had followed the recommendation of his predecessor, which gave the Smithsonian preference in research and alarmed the academics. After Hewett's bill had been introduced into the Senate, the Secretary of the Interior gave Richards another opportunity to restore a role for the Smithsonian by asking him to provide comments on the Senate bill, which was identical to the House bill. Although Richards had been a key member of the "antiquities bill alliance," he suggested substitute language for Hewett's Sections Three and Four that put control of all explorations "under the direction and supervision of the Smithsonian Institution" (Claus 1945: 12). It appears that the Secretary may not have forwarded this recommendation to Senator Patterson. In any event, the Senate did not change a single word in Hewett's draft. Yet, the fact that Richards would revive a concept that originated in Hermann's bill in 1900, after all of the cooperative effort that went into Hewett's draft, shows that the General Land Office was most persistent in promoting its long-standing desires. It may also indicate that Richards was anxious to transfer to the Smithsonian those aspects of custodianship that he did not want to handle.
One of the reasons for protecting the ruins was to preserve their educational value. It was expected that information about them would be recovered by "properly qualified" professionals. These thoughts were reflective of the Progressive Era philosophy that the nation's resources should be centrally controlled and managed by competent specialists for the good of the country as a whole. Section Three of Hewett's draft followed similar sections of earlier bills in authorizing the issuance of excavation permits to institutionally based archaeologists. The permits were to be issued by the same land-managing agencies that were responsible for protecting the ruins from the vandalism prohibited in Section One (Hewett 1906b: 113). These agencies would also develop and administer the rules and regulations called for in Section Four of Hewett's draft.
Hewett had seen how bickering over procedural details had hindered earlier attempts to pass antiquities legislation. Because of his determination to avoid such problems, in Section Four of his draft he specifically left all details of procedure to the wisdom of the three cabinet secretaries (Rothman 1989: 49). The efforts of Charles Lummis to obtain permits during the summer of 1905 underscored the need to keep Section Four as simple as possible. The Lummis experience demonstrated that the government agencies were poorly prepared to deal with permit requests. Hewett seemed genuinely convinced that it would be a mistake politically to try to specify procedures in the language of the bill. He may also have wanted to keep the permit process as flexible as possible for personal reasons, for after the passage of the Antiquities Act he manipulated the permit process to further his own research agenda as well as that of friends like Lummis (Rothman 1992: 84-115).
Lummis had applied for permits to dig in Arizona. He treated the federal officials with arrogance and disdain, and they responded with bureaucratic efficiency that he called the "insolence of office" (correspondence between Lummis and Office of Indian Affairs, Secretary of the Interior, Bureau of Forestry, Seymour, 6 through 24 October 1905, AIA). Lummis complained to President Theodore Roosevelt (Lummis to Roosevelt, 15 August 1905, AIA). When the permits were finally granted, Lummis, claimed it was the result of pressure from the President (Lummis to Seymour, 10 October 1905, AIA). In fact, Holmes had brokered an arrangement whereby the BAE would provide supervision of the work under permit (Hewett 1906b: 111-13). This arrangement recalled Hewett's earlier comments to Holmes about a BAE role (Hewett to Holmes, 29 September 1903, NAA) and anticipated the role of the Secretary of the Smithsonian Institution in the rules and regulations for the Antiquities Act.
Lummis later claimed that he "initiated, and finally put through (with the aid of Hewett and eminent scientists, and with the direct and forcible intervention of President Roosevelt in our behalf) the Lacey Act of 1906…. I made the fight personally in Washington" (Lummis, Journal, in Gordon 1968: 19). Lummis, possibly because of faulty memory but more likely because of his propensity for self-aggrandizement and prevarication (Byrkit 1989: xvii), seems to have confused the 1905 permit experience with one that took place two years later in 1907 when the Secretaries of the Interior and Agriculture could not agree (Fiske and Lummis 1975: 130; Mark 1980: 78). Again, Lummis complained to Roosevelt who met with him, Hewett, Holmes, Secretary of Agriculture James Wilson, and Secretary of the Interior James Rudolph Garfield.
Although Hewett insisted on a bill with minimal procedural detail, he had his own ideas about the nature of the permit system (Hewett to Holmes, 18 December 1905, NAA). He expressed his concern about the rules and regulations to Holmes on the eve of his departure for research in Mexico: "As it seems almost certain that the Lacey bill will pass, I venture to express the hope that you can stave off the making of the regulations provided therein until I return from Mexico, which will be about Dec. 27" (Hewett to Holmes, 1 June 1906, NAA). Hewett wrote from Mexico, soon after Lacey had written to inform him that the bill did pass, expressing the fear that "Boston" might get involved and hinting that he had already begun work on the rule making process (Hewett to Holmes, 3 July 1906, NAA). In any event, the final rules and regulations, including the advisory role for the Smithsonian, were adopted without Hewett's input on December 28, 1906 (Lee 1970: 118-20, pp. 267-69; Meltzer and Dunnell 1992: xxii).
The issuing of permits under controlled conditions protected the research interests of the archaeological community. Many academic archaeologists were anxious to exercise control over research access to archaeological sites and were upset about the idea of giving permitting authority to any government official (Mark 1980: 78). "The Southwest had for some decades provided good hunting grounds for northeastern archaeologists and ethnologists" (Hinsley 1986: 219) and they hoped to continue to have unimpeded access to those resources. Putnam, Boas, and others had lobbied against giving any control over either permits or research to federal bureaucrats, especially those in the Smithsonian Institution (Boas to Butler, 7 March 1904; Putnam to Hoar and Lacey, 20 April 1904; Putnam to Kelsey, 4 June 1904; AIA). They preferred control by a nongovernmental commission of academic archaeologists, in other words, themselves (Mark 1980: 78). The President of the AIA, Thomas Day Seymour of Yale, included consideration of such a commission in his charge to the AIA committee with which Hewett and the AAA committee were cooperating (Seymour to Committee, 15 June 1904, AIA). This desire on the part of the academic archaeologists was another example of their failure to distinguish between the conduct of research on federal land and the management of that land and its resources.