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Chapter 6
The Antiquities Act, 1900-06
Ronald F. Lee

The legislative history of the Antiquities Act falls into three different phases, which culminated in passage of the law in 1906.70

The First Round

Sometime late in 1899 the American Association for the Advancement of Science established a committee to promote a bill in Congress for the permanent preservation of aboriginal antiquities situated on federal lands. It was called the "Committee on the Protection and Preservation of Objects of Archaeological Interest." Dr. Thomas Wilson, lawyer, diplomat, and since 1887 curator of prehistoric archaeology in the U.S. National Museum, was named Chairman and Frederic W. Putnam, N. H. Winchell, G. K. Gilbert, A. W. Butler, and George A. Dorsey members.71 The same year the Archaeological Institute of America set up a Standing Committee on American Archaeology, with Charles P. Bowditch of Boston as chairman and F. W. Putnam and Franz Boas as members.72 The two committees agreed to combine their efforts with Dr. Wilson serving as "Chairman of the Committees of the two Societies."73 By this means the experience and knowledge of both classical and American archaeologists were brought to bear on the preservation of prehistoric antiquities in the United States.

The course of subsequent events is not entirely clear, but it appears that Dr. Wilson arranged, with the assistance of S. V. Proudfit, an attorney assigned to the Department of the Interior and a member of the Anthropological Society of Washington, for the drafting of a comprehensive antiquities bill.74 The draft bill, with an accompanying explanation, was then published for the information of the two societies.

The bill began with a major provision that:

The President of the United States may from time to time set apart and reserve for use as public parks on reservations, in the same manner as now provided by law for forestry reservations, any public lands upon which are monuments, cliff-dwellings, cemeteries, graves, mounds, forts, or any other work of prehistoric, primitive, or aboriginal man, and also any natural formation of scientific or scenic value of interest, or natural wonder or curiosity together with such additional area of land surrounding or adjoining or adjoining the same, as he may deem necessary for the proper preservation and subsequent investigation of said prehistoric work or remains.75

This is the first link between historic and natural areas in the history of federal preservation legislation. It also introduced the work "monuments" into the language of conservation in the United States, though in a somewhat different sense than it eventually acquired.

In an explanation accompanying the bill, much emphasis was placed on the sharp contrast between the excellent protection afforded antiquities by most European governments and the almost total absence of such protection in the United States.

Turkey, Greece, Egypt, the Barbary States, and other Oriental countries have exercised the various rights of eminent domain in regard to prohibition of entry upon or excavation of such works. Persia (in Assyria and Babylonia) has pursued the same course. Notable instances of these are to be found in the work done by the Archaeological Institute of America in Greece, and of the University of Pennsylvania at Nippur.
In all these countries governmental permission must be obtained before excavations can be made, and this permission is a subject for diplomatic negotiations. Nearly all countries in western Europe have laws making similar provision in respect of their prehistoric monuments. Many years ago Great Britain provided that the government would act as trustee and guardian of such monuments and earthworks whenever requested by the owners. This secured the preservation of Stonehenge...In France the society for the preservation of Monuments megalithiques chooses the monuments it desires, and on its recommendation they are condemned and purchased. Italy, Spain, and other countries supervise excavations, whether made on public purchase of any objects found. In our own continent the governments of Mexico and the Central American States pursue the same course, and permission is as much required to excavate and bring to light the prehistoric ruins of the Aztecs and the Mayas as to excavate for the Nicaragua Canal.
The United States stands almost, if not entirely, alone without any law to make any of these prohibitions or to supervise or grant permission for similar investigations.76

The explanation went on to cite conspicuous instances of the loss of American antiquities to other countries. Russia, it was said, had carried away from Alaska more aboriginal objects for display in her museums than had the United States. A Swedish expedition had taken a large and valuable collection back to its museums from the pueblo ruins of Colorado and New Mexico. One of the finest displays of prehistoric implements from Ohio was to be found in the Blackmore Museum in Salisbury, England, placed there by Squier and Davis after their exploration of ancient mounds in the Mississippi Valley.77

Among its other provisions, the bill authorized the Secretary of the Interior to grant permission for archaeological excavations to qualified institutions and made unauthorized excavations a misdemeanor subject to fine. On February 5, 1900, Representative Jonathan P. Dolliver of Iowa, presumably at the request of Dr. Wilson, introduced a somewhat revised form of this bill in the House as H. R. 8066.78

Now that the antiquities issue had been raised in Congress, competing viewpoints were quickly made known. On February 6, the day after Representative Dolliver introduced his bill, Representative John F. Shafroth of Colorado, a member of the Public Lands Committee, whose state contained many well-known cliff dwellings, introduced his own bill, H.R. 8195. A westerner, Representative Shafroth was not interested in promoting new Presidential authority to create parks of undetermined extent on the public domain. Instead, his bill simply declared that any unauthorized person who harmed an aboriginal antiquity would be subject to fine, imprisonment, or both.79 This quick solution to the problem was soon recognized as too simple, however. On March 7, Shafroth introduced a second bill, H.R.9245, which directed the Secretary of the Interior to have the Geological Survey make a survey of public lands in Colorado, Utah, Arizona, and New Mexico where ruins of temples, houses, and other prehistoric structures were known to exist and recommend which were of sufficient importance for permanent preservation. The Secretary was authorized to set aside lands upon which such important ruins were situated, not to exceed 320 acres for each ruin. The lands thus set aside were to be placed in the custody of the Bureau of American Ethnology of the Smithsonian Institution.80

All three antiquities bills now before Congress were referred for consideration to the House Committee on the Public Lands, whose Chairman was Representative John F. Lacey of Iowa. On March 7, 1900, he sent the three bills to Secretary of the Interior Ethan A. Hitchcock, who promptly referred them to Binger Hermann, Commissioner of the General Land Office. On March 20, Hermann expressed strong approval of legislation to preserve prehistoric ruins and other objects of interest to science on the public lands. He especially emphasized "the need for legislation which shall authorize the setting apart of tracts of public land as National Parks, in the interest of science and for the preservation of scenic beauties and natural wonders and curiosities, by Executive Proclamation, in the same manner as forest reservations are created."81 In the absence of such general legislative, it was necessary to procure a separate law for each national park, which usually required several years, during which serious scientific losses often occurred.

Commissioner Hermann found all three of the pending bills unsatisfactory, and instead he proposed a substitute bill. For the next six years, with some modifications, this bill embodied the views of the Department of the Interior on the form antiquities legislation should take. Although not well received by the House Committee on Public Lands, this bill was nevertheless introduced by Representative Lacey, at the request of the Department, on April 26, 1900.82

The title of H.R.11021 reveals a good deal about the Department's thinking. It was called "A Bill to establish and administer national parks, and for other purposes." In 1900 there were only five national parks, not counting the battlefields. By contrast, the number and extent of designated forest reserves, later called national forests, had grown tremendously after 1891. By 1901, as noted above, the Department of the Interior was administering 41 forest reserves containing more than 46 million acres, all created by Executive Proclamation from public lands. This was substantially more than land than contained in the entire National Park System in 1969.

The first section of the bill attempted to correct this imbalance. In language not unlike Dolliver's bill but with greater emphasis on scenic and natural areas, it provided that:

The President of the United States may, from time to time, set apart and reserve tracts of public land, which for their scenic beauty, natural wonders or curiosities, ancient ruins or relics, or other objects of scientific or historic interest, or springs of medicinal or other properties it is desirable to protect and utilize in the interest of the public; and the President shall, by public proclamation, declare the establishment of such reservations and the limits thereof.83

The Department of the Interior was plainly seeking broad discretionary authority for the President to reserve a wide range of resources for public use. Historic as well as scenic and scientific resources, it has been well pointed out, were among those added to prehistoric resources for permanent protection.84

The second section provided "that such reservations shall be known as national parks and shall be under the exclusive control of the Secretary of the Interior, who is hereby empowered to prescribe such rules and regulations and establish such services as he shall deem necessary for the care and management of the same." In this language, one may perhaps discern one of the first expressions of the idea of a National Park Service. The Secretary was also authorized to rent or lease parcels of ground in such parks for the erection of buildings to accommodate visitors, the resultant revenues to be placed in a special fund for the care of the parks.

The third section authorized the Secretary of the Interior to permit examinations, excavations, and gathering of objects of interest within such national parks, provided they were undertaken for the benefit of the Smithsonian Institution or a reputable museum, university, college, or other recognized scientific or educational institution. The final section provided penalties for persons unlawfully intruding upon such parks.

Interior's proposed bill met with a cool response from the House Committee on Public Lands. As Dr. Thomas Wilson wryly wrote Dr. Walter Hough of the U.S. National Museum on March 31: "Members of Congress have their own opinions concerning the treatment of public lands."85 On April 19 Representative Lacey wrote Secretary Hitchcock that the committee "seemed to be unanimously of the opinion that it would not be wise to grant authority in the Department of the Interior to create National parks generally, but that it would be desirable to give the authority to set apart small reservations, not exceeding 320 acres each, where the same contained cliff dwellings and other prehistoric remains."86 The reluctance of the members of the Public Lands Committee, most of them western public lands states, to grant general authority to the Executive Branch to create new national parks is understandable in the light of their past experience with the timber reservations act of 1891 and their forebodings of what was still to come. From their viewpoint, later events justified their concern. In his first year in office in 1901-02 President Theodore Roosevelt created 13 new forest reserves, containing 15.5 million acres, on the public lands. In 1907, in response to the views of members from the West, Congress revoked presidential authority to create forest reserves in six western states. Before signing the revocation act, however, President Roosevelt set aside an additional 75 million acres in forest reserves, "increasing the total to 150,832,665 acres in 159 national forests."87 Against this background, any proposed antiquities legislation that included broad authority for the President to create new parks or monuments out the public lands was sure to meet with opposition.

Meanwhile, a subcommittee of the House Public Lands Committee had been assigned the task of studying the various proposals. On April 5 Representative Shafroth introduced H.R.10451, which represented the combined views of the full Committee on Public Lands. The provisions of this bill were about what might have been expected under the circumstances. It authorized the Secretary of the Interior to set apart and reserve from sale, entry, and settlement any public lands in Colorado, Wyoming, Arizona, and New Mexico containing monuments, cliff dwellings, cemeteries, graves, mounds, forts, or any other work of prehistoric, primitive, or aboriginal man, each such reservation not to exceed 320 acres.88 The bill thus greatly reduced the scope of the proposed legislation, though leaving its administration to Interior. It also authorized the Secretary to permit excavations in such reservations by qualified institutions and made unauthorized excavations or damage a misdemeanor.

On April 21 Representative Shafroth presented a favorable report on this bill to the House on behalf of the Public Lands Committee. His report revealed the Committee's growing awareness of the importance of preserving prehistoric antiquities. He cited the large number of prehistoric "dwellings, castles, forts and palaces" in the southwestern region of the United States and their great interest to students of archaeology not only in America but throughout the world. He pointed out that more ruins were being destroyed each year. "The only practical way they can be preserved," he said, "is creating reservations of the land surrounding each ruin, and providing a penalty for any destruction of the same."89

Congress, however, took no action on H.R.10451 or any of the other four bills. Almost four years were to pass before another general antiquities bill was introduced in Congress. The first round of sparring over antiquities legislation among the scientists of the country, the Department of the Interior, the Bureau of American Ethnology, and the House Public Lands Committee ended as a draw.

The Second Round

In January, 1902 a new personality and a new society joined the fray over the proper form of national preservation legislation. The new personality was the Rev. Henry Mason Baum, D.C.L., and the new organization the Records of the Past Exploration Society. Now long forgotten, Dr. Baum and the society he served as president played an active, curious, and in the end controversial role from 1902 to 1905 in the race to protect American antiquities.

Baum edited a new historical journal published in Washington, D.C. called Records of the Past. This journal attempted to report on "the work of historical research and exploration throughout the world, from a literary standpoint."90 Although his own field was biblical archaeology, Baum found, as he testified in 1904 before the Senate Public Lands Committee, "that, as an editor, it was necessary for me to have a practical knowledge of American antiquities. Therefore, two years ago I visited the mounds of the Mississippi Valley and the more important pueblo and cliff ruins of the Southwest. One of the objects I had in view was to ascertain how the antiquities on the Government domain could best be protected. My expedition led to the drafting of House bill 13349."91

The first issue of Records of the Past, which appeared in January 1902, carried as its lead article an exposition of the general principles Baum recommended be embodied in a national preservation law.92 As he summarized them later for the Senate Committee, these were, "first, that the antiquities be placed under the control of the Secretary of the Interior; second, that the institutions of the country shall have an equal right to excavate the ruins; and third, that all excavations shall be prohibited without a permit from the Secretary of the Interior."93 During the next two years, the active and articulate Baum waged a tireless campaign to write these principles into law. He very nearly succeeded. In the course of his efforts, he provoked a major controversy with the Smithsonian Institution.

During the winter of 1903-4, Baum and his associates prepared a draft of their proposed bill and asked Representative William A. Rodenberg of Illinois to introduce it. He was known to be "deeply interested in the subject, and lives within four miles of the largest prehistoric monument in the Western Hemisphere -- the Great Cahokia Mound."94 On March 2, 1904 Rodenberg introduced this bill as H.R.13349 and had 500 extra copies printed for use in promoting the legislation. On March 5 he sent letters to the presidents of leading universities, colleges, museums, and historical and archaeological societies throughout the United States, enclosing H.R.13349 and asking for their suggestions and support. "I introduced the bill", he wrote, "at the request of the Records of the Past Exploration Society, of this City. If the bill meets with your approval I will be glad to have you write at once to the Committee having the bill in charge, addressing your letter to the Committee on Public Lands, House of Representatives, Washington, DC."95

Rodenberg's bill placed all historic and prehistoric ruins, monuments, archaeological objects, and antiquities on the public lands in the custody of the Secretary of the Interior with authority to grant excavation and collecting permits to qualified institutions. However, the Secretary was obliged to grant a permit to any state or territorial museum or university to excavate any ruin on public lands within its territorial limits "upon application for such permit being indorsed by the governor." Excavations were to be rigidly regulated, and a complete photographic record of "all objects" found was required, duplicate photographs to be deposited in the National Museum. Forgeries and unauthorized excavations were declared misdemeanors. It was to be the duty of the Secretary to recommend to Congress which ruins or groups of ruins should be made national reservations, but Congress retained complete control over new areas.

The results of Rodenberg's letter were little short of phenomenal. Strongly favorable endorsements promptly poured into the House Public Lands Committee from presidents of universities, historical societies, and museums throughout the nation. Twenty-five of the letters were printed in full in the record of hearings held by the Senate Public Lands Committee on April 20, 1904. Among the many prominent endorsers of the bill were Thomas Day Seymour, President of the Archaeological Institute of America; Frederic W. Putnam of the Peabody Museum at Harvard; Benjamin I. Wheeler, President of the University of California; Stephen Salsbury, President of the American Antiquarian Society; William C. Mills, Curator of the Ohio State Archaeological Society; and E. B. Morgan, President of the Colorado State Historical and Natural History Society.96 Such a favorable response from so many learned institutions and eminent scholars deeply impressed members of the House and Senate Committees on Public Lands. On April 20, at Baum's request, Senator Henry Cabot Lodge of Massachusetts introduced S. 5603 in the Senate as a companion measure to Rodenberg's House bill, and it became known as the Lodge bill.97

Although Baum and Rodenberg were getting most of the attention, W. H. Holmes, Chief of the Bureau of American Ethnology, and other officials of the Smithsonian Institution had prepared their own antiquities bill the previous winter, and the Board of Regents had approved it."98 Among those Regents were Senator Shelby M. Cullom and Representative Robert R. Hitt, both of Illinois. On February 5, 1904, Senator Cullom introduced the Smithsonian bill, D.4127, in the Senate; and on February 16, Representative Hitt introduced the companion bill, H.R.12447, in the House. This bill had been carefully worked out. For one thing it clearly defined antiquities on public lands as including:

mounds, pyramids, cemeteries, graves, tombs, and burial places and their contents, including human remains; workshops, cliff dwelling, cavate lodges, caves, and rock shelters containing evidence of former occupancy; communal houses, towers, shrines, and other places of worship, including abandoned mission houses or other church edifices; stone heaps, shell heaps, ash heaps, cairns, stones artificially placed, solitary or in groups, with or without regularity; pictographs and all ancient or artificial inscriptions; also fortifications and inclosures, terraced gardens, walls standing or fallen down, and implements, utensils, and other objects of wood, stone, bone, shell, metal, and pottery, or textiles, statues and statuettes, and other artificial objects.99

The Smithsonian bill authorized the President to proclaim important antiquities, thus defined, as public reservations and to determine their boundaries. No protection at all was provided, however, for historical, scenic, or scientific resources on the public lands. All antiquities reservations were to be under the control of the Secretary of the Interior for care and management, but, subject to Interior's regulations, the Secretary of the Smithsonian Institution was to have "supervision of all aboriginal monuments, ruins, and other antiquities." Explorations, excavations, and collections "shall be made only by the Smithsonian Institution or some of its Bureaus, or by some state, Territorial, municipal or other duly incorporated museum, or by some foreign museum of national character, or by museums attached to some incorporated college or university in the United States which teaches archaeological science." All permits granted by the Secretary of the Interior were to be issued only on the recommendation of the Secretary of the Smithsonian Institution. Any person who willfully damaged any aboriginal antiquity was subject to severe penalties.100

On April 22, 1904, the Senate Subcommittee on Public Lands held hearings on the Smithsonian Subcommittee bill, S.4127, and on the Lodge bill, S.5603.101 Senator Charles W. Fulton of Oregon presided as chairman, and the witnesses included Baum and Frederick B. Wright, the latter secretary of the Records of the Past Exploration Society; and Dr. Francis W. Kelsey, secretary, and Professor Mitchell Carroll, associate secretary, of the Archaeological Institute of America. The record of this hearing, printed by the Senate on April 28, 1904, provided eloquent evidence of the vandalism of American antiquities that had been going on for years and of the broad national support for corrective legislation.

During the hearing witnesses outlined the numerous merits they saw in Senator Lodge's bill. Objections to the Smithsonian bill were offered in restrained but persuasive language by the Archaeological Institute's Secretary Kelsey, classicist and archaeologist of the University of Michigan, whose Pompeii, Its Life and Art, had appeared only a few year before.

The first difference of opinion has reference to the division of administration between the Secretary of the Interior and the Smithsonian Institution...The objection has been raised by men in whose opinion I have confidence that the arrangement proposed in this bill would lead to constant friction and a clashing of authority, which would be apt to neutralize the beneficial results of the legislation... The second consideration which has been urged against this bill is that it gives the Smithsonian Institution an unfair advantage, an advantage which cannot be justified from either a practical or a scientific point of view over any other institution -- such as the Peabody Museum at Cambridge, the Natural History Museum of New York, and other large museums -- in respect to excavating and in respect to the guardianship of remains that may be recovered by the process of excavation.102

On April 25 the Senate Public Lands Committed reported Senator Lodge's bill favorably, and the next day it passed the Senate and was sent to the House. Victory seemed near. "Preparations were made," reported Baum," to ask unanimous consent for its passage, as Congress was to adjourn the next day."103 The House Public Lands Committee agreed to seek immediate passage, but representatives of the Smithsonian Institution went to the Hill and voiced strong objections. Midnight and the hour of adjournment arrived and no action had been taken.104 The bill went over the next session of Congress.

In the sting of defeat, Baum published a bitter attack on the Smithsonian Institution in Records of the past for May 1904.105 Emotions were so aroused that some members of his society apparently became embarrassed. The next year Baum's name no longer appeared as editor. He was succeeded by Professor G. Frederick Wright of Oberlin College, an authority on the mounds of Ohio.106

With Congress in recess, the archaeologists of the country made a determined effort to heal their differences and also save the Lodge bill. In May 1904, at its annual meeting in St. Louis, the Archaeological Institute of America created a new "Committee on the Preservation of the Remains of American Antiquity," with Professor Thomas Day Seymour of Yale as chairman and each of the seventeen local chapters represented on the committee.107 On January 10, 1905, this committee met in Washington, DC with a similar committee from the American Anthropological Association and "agreed upon a memorandum which is believed to represent the unanimous opinion of American scientists in the archeological field.108 On the following day the two committees appeared before the House Committee on Public Lands and presented the scheme of legislation they had prepared. Again in 1904 Representative Lacey had introduced the Interior bill, H.R.13478, "to establish and administer national parks, and for other purposes."109 Nevertheless, he and his colleagues gave the proponents of the Lodge bill "a most courteous hearing," and on January 19, 1905, they reported it favorably, with amendments recommended by the archaeologists.110 Among other provisions, these amendments strengthened the authority of the Secretary of the Interior to protect antiquities by authorizing him to make permanent reservations not exceeding 640 acres around important ruins. Nothing was said, however, about scenery or natural wonders.111 Congress adjourned before the bill could the bill could be brought to the floor for a vote.

One more round was necessary in a new Congress, the 59th, before an antiquities bill finally became law.

The Third Round

Until 1905 all the federally owned lands on which aboriginal ruins and pueblos were likely to be found were administered by the Secretary of the Interior. These were the public lands, the Indian lands, and the forest reserves. But since 1898, Gifford Pinchot, Chief of the Bureau of Forestry in the Department of Agriculture, had worked assiduously in and out of Congress for transfer of the forest reserves to his Department. Early in 1905 he achieved this goal when Congress passed the Forest Transfer Act, which President Roosevelt signed on February 1.112 By 1907 forest reserves under the administration of the Secretary of Agriculture contained more than 150 millions acres, on which thousands of Indian sites and ruins were known to be located. This situation added a major jurisdictional complication to the other problems that had to be taken into account in framing antiquities legislation.

At this juncture a young archaeologist from the West began to come into national prominence, and his labors did much to shape the final legislation. He was Edgar Lee Hewett, born on a farm in Illinois in 1865, educated in Missouri, superintendent of schools in Florence, Colorado, in the 1890's, and already an avid explorer of the cliff dwellings and pueblo ruins of Colorado and New Mexico. His first archaeological field work was done in 1896, when he was thirty-one, among the pueblo ruins and cavate dwellings of Frijoles Canyon, near Santa Fe, later Bandelier National Monument. Before long, Hewett was writing for professional journals in the East, and soon he was active in the circles of the American Anthropological Association. In 1904 he began graduate studies in anthropology at the University of Geneva in Switzerland which led to a Ph.D. In January 1906 the Archaeological Institute of America chose him as its Fellow in American Archaeology, and he extended his study of ancient Indian ruins to Mexico.113 Hewett's unusual combination of western background, farming and teaching experience, first-hand knowledge of ancient ruins on federal lands in the Southwest, and experience as an archaeologist and administrator, enabled him in this period to enjoy alike the confidence of members of Congress, bureau chiefs, staffs of universities and research institutions, and members of professional societies.

In 1902 Representative Lacey decided to visit the Southwest and see for himself some of the pueblo and cliff dwellings that were the subject of bills before his committee. Hewett accompanied him. As Professor Mitchell Carroll reported in 1920, "Major Lacey attributes his archaeological legislation to this expedition in New Mexico with Dr. Hewett."114

In 1904, following the sharp conflict in Congress over antiquities legislation, Commissioner W.A. Richards of the General Land Office decided that the situation required a new review of the entire antiquities preservation problem on federal lands. To perform this task he turned to Hewett. On September 3, 1904, Hewett submitted to Commissioner Richards a "Memorandum concerning the historic and prehistoric ruins of Arizona, New Mexico, Colorado, and Utah, and their preservation." For the first time, Hewett's memorandum provided the General Land Office and eventually the Congress with a comprehensive review of all the Indian antiquities located on federal lands in four key states. An accompanying map showed the location of major ruins in the basins of the Rio Grande, San Juan, Little Colorado, and Gila, which he called "the four great seats of prehistoric culture of the so-called pueblo region." Within each basin he identified "the principal groups or districts of ruins of each great culture area." There were twenty such districts. Based on his own observations and those of such leading archaeologists as Fewkes, Hough, Bandalier, Mindeleff, Prudden, and Cushing, he sketched the characteristics of each district and went on to describe many of the individual ruins, among them the proposed Pajarito National Park, Pecos, Gran Quivira, Aztec, Mesa Verde, Chaco Canyon, Canyon de Chelly, Walnut Canyon, Petrified Forest, El Morro or Inscription Rock, Montezuma Castle, Casa Grande, and the ruins among the Gila River.115 Better than any other single document, Hewett's memorandum clearly foreshadowed, in remarkable detail, the system of archaeological national monuments established in the Southwest following passage of the Antiquities Act.

In 1905 Hewett was appointed member of a committee formed by the American Anthropological Association to work for antiquities legislation, and he soon became its secretary. The members of this committee felt that the Lodge bill, S.5603, which with amendments had very nearly passed the last Congress, should be perfected and reintroduced in the new Congress due to convene in January 1906.116 But Hewett recognized that the jurisdictional problem created by passage of the Forest Reserve Transfer Act would have to be solved. On December 28, 1905, he discussed this and other points in a paper he read before a joint meeting of the American Anthropological Association and the Archaeological Institute held at Ithaca, New York:

It is manifestly impossible to concentrate the entire authority in this matter in any one Department. The purposes for which the lands of the United States are administered are so diverse that no Department could safely undertake to grant privileges of any sort upon lands under the jurisdiction of another Department. Accordingly, if archaeological work is proposed on forest reserves the application for permission must be to the Secretary of Agriculture; if on a military reservation, to the Secretary of War; and if on an Indian reservation or on unappropriated public lands, to the Secretary of the Interior. Any other system would lead to great confusion and conflict of interests.117

Hewett then presented to the joint meeting a revised draft of the antiquities bill that he believed preserved the spirit of the measure agreed to by the two societies the previous year and at the same time met the wishes of the various federal departments. Which departments and bureaus he consulted in the preparation of this draft Hewett did not say, but subsequent events demonstrated that it reconciled the conflicting interests that had plagued antiquities legislation for six years. At the joint business meeting of the two Associations, Hewett's draft bill was unanimously endorsed.118 On January 9, 1906, Representative Lacey introduced it in the House as H.R.13349.119

John Fletcher Lacey of the Sixth District of Iowa, after whom the Antiquities Act was eventually named, was an outstanding conservation leader at a time when conservation issues absorbed the attention of the nation. Born in 1841, in a one-room log cabin on the Ohio River, he later moved with his parents to Iowa. After serving in the 33d Iowa Volunteers during the Civil War, he studied law. A dedicated student, he compiled all the railway cases in the English language and became an outstanding authority on railroad law. He was elected to Congress in 1889 and with the exception of one term served continuously until 1907. He was an ardent student of Indian affairs, public lands, wildlife, and forestry, and he shaped legislation in all these fields. He defended national parks and forest reserves against attacks by western land looters.120 As John Ise has written, "Without Lacey's pervasive and persistent influence, the history of conservation in the United States would be very different, and our situation today would be worse, perhaps very much worse."121

On February 26 Senator Thomas M. Patterson of Colorado introduced a companion measure to the House bill in the Senate, S.4698. Both bills followed Hewett's draft exactly and read as follows:

A Bill
For the Preservation of American Antiquities

1. That any person who shall appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity situated on lands owned or controlled by the Government of the United States, without the permission of the Secretary of the Department of Government having jurisdiction over the lands on which said antiquities are situated shall, upon conviction, be fined in a sum not more than five hundred dollars or be imprisoned for a period of not more than ninety days, or shall suffer both fine and imprisonment in the discretion of the court.

2. That the President of the United States is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in al cases shall be confined to the smallest area compatible with the proper care and management of the objects to the protected: Provided, That when such objects are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object may be relinquished to the Government, and the Secretary of the Interior is hereby authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.

3. That permit for the examination of ruins, the excavation of archeological sites, and the gathering of objects of antiquity upon the lands under their respective jurisdictions, may be granted by the Secretaries of the Interior, Agriculture, and War, to institutions which they may deem properly qualified to conduct such examination, excavation, or gathering, subject to such rules and regulations as they may prescribe: Provided: That the examinations, excavations, and gatherings are undertaken for the benefit or reputable museums, universities, colleges, or other recognized scientific or educational institutions, with a view to increasing the knowledge of such objects, and that the gatherings shall be made for permanent preservation in public museums.

4. That the Secretaries of the Departments aforesaid shall make and publish from time to time uniform rules and regulations for the purpose of carrying out the provisions of this act.122

This bill took care of six important points not adequately covered in any previous proposal. First, the provisions were made applicable to antiquities situated on any "lands owned or controlled by the Government of the United States." Previous bills applied only to the public lands, leaving their applicability to forest reserves, Indian lands, and military reservations uncertain. Secondly, the authority of the President to establish public reservations was made to include "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest." Senator Lodge's bill, in its several earlier versions, had been limited to historic and prehistoric antiquities and made no provision for protecting natural areas. At some point in his discussions with government departments, Hewett was persuaded, probably by officials of the Interior Department, to broaden his draft to include the phrase "other objects of historic or scientific interest." This language may have come from the old Interior Department bill, H.R.11021. As it later turned out, the single word "scientific" in the Antiquities Act proved sufficient basis to establish the entire system of fifty- one national monuments preserving many kinds of natural areas, including Grand Canyon, Zion, Mount Olympus, Death Valley, Glacier Bay and Katmai, that were set aside by successive Presidents between 1906 and 1969 primarily though not exclusively for their scientific value. Eight of these monuments later became the bases for well-known national parks.

Thirdly, the President's discretion to proclaim national monuments was made subject to a provision that the limits of such monuments was made subject to a provision that the limits of such monuments "should be confined to the smallest area compatible with the proper care and management of the objects to be protected." Several earlier bills provided that such reservations be limited to 320 acres or 640 acres. This flexible provision that permitted the President to establish larger areas if justifiable was accepted by western members of Congress and proved vital to successful administration of the act.

Fourthly, the bill introduced the term "National Monument" into the language of conservation. Why Hewett recommended this term is not known. To make small archaeological reservations "National Parks" must have seen inappropriate and probably difficult to get through Congress. The word "monument" appeared in several earlier bills and may have suggested the term finally adopted. Between 1904 and 1908 Hewett studied at intervals at the University of Geneva and wrote his doctor's thesis in French, entitled Les Communautes anciennes dans le desert americain.123 Perhaps the term "monument" suggested itself to Hewett because of its wide usage in France.

Fifthly, the bill authorized the Secretary of the Interior to accept the donation of lands in private ownership on which were situated historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest. This authority appeared a little ambiguous at first, but it was soon sustained after passage of the act and has been utilized many times since.

Lastly, after investing the Secretaries of Interior, War, and Agriculture with authority to grant excavation permits, the bill provided that they make and publish "uniform rules and regulations" to carry out the law's provisions. It seems likely that it was informally understood all around that if the bill passed, the role of the Smithsonian Institution as scientific advisor would be protected and clearly set forth in the uniform rules and regulations, making its definition in the law unnecessary.124 This may have avoided another controversy.

The House Committee on Public Lands considered H.R.11016 promptly, and Representative Lacey reported it favorably, with minor amendments, on March 12.125 However, no one seemed to want even minor changes. Senator Patterson's companion bill, S.4693, was reported favorably by the Senate Committee on Public Lands without change on May 24. The next day it was referred to Lacey's committee in the House. On June 5, Lacey reported it favorably, this time without change, and it passed. On June 8, 1906, it was signed into law by President Theodore Roosevelt. Not a single significant word had been altered from the draft bill Hewett had presented to the American Anthropological Association and the Archaeological Institute of America six months before. Because of the strong support he gave the measure in Congress and the key role he played in bringing about its passage for many years, the legislation was familiarly called "the Lacey Act."

Contents | Chapter 5 | Chapter 6 | Chapter 7



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