The Influence of Lacey
It was clear that a new approach was needed. Hewett's title for his bill "An Act for the Preservation of American Antiquities," seemed not only to express the desires of the archaeologists, but also to signal such a change. However, no bill can survive the political process if all it does is to declare that a particular goal is both good and noble. A bill has to do something. It appears that advice from Lacey was critical at this stage of the campaign. A successful veteran of congressional battles approaching the end of his long political career, John Fletcher Lacey (fig. j) fully understood that lawmakers normally try to solve problems rather than state policies, even though major policy concerns are often present. If the legislative solution provided is successful, the Congress may codify and elaborate the policy at a later date.
For example, Lacey's 1900 wildlife act did not declare that the federal government ought to protect birds and game, for that responsibility belonged to the states. However, interstate commerce is the responsibility of the federal government, so Lacey could protect birds and game indirectly by prohibiting interstate (and international) transport of wild birds and game in violation of state law (Lacey 1915b; Rosenbaum 1995: 762). By passing that bill, the Congress indirectly established a federal responsibility for wildlife, and from that has come the nation's wildlife protection policy.
Hewett followed Lacey's example and employed the indirect technique. He did not ask the Congress to make the federal government responsible for protecting sites on federal land by declaration of that abstract principle. Rather, his draft implied that responsibility by making it illegal for anyone to damage ruins on federal land. Such a prohibition is something that every law-abiding citizen can comprehend. It is difficult to object to such a prohibition for it is, after all, against the law to damage, destroy, or steal the property of others. Hewett developed a simple and nonthreatening way to establish indirectly the principle that the federal government must safeguard the archaeological sites on its lands, and he did so without mentioning land withdrawal of any kind. The emphasis on the prevention of tooting and vandalism addressed directly the growing public concerns about such depredations (Wild 1987: 39–40). Hewett and others had done a good job of alerting the public and the Congress to the severity of this problem. Hewett (1904c: 4), in his widely disseminated Memorandum to Commissioner Richards, commented that "it will be a lasting reproach upon our Government if it does not use its power to restrain" the destruction of the ruins. The language of Section One of Hewett's draft very skillfully shifted attention away from the withdrawal of land that was such a red flag to many western congressmen.
At the same time, there was widespread recognition that there were a few places that were unique and so spectacular that they deserved special treatment and permanent protection. It was this type of site that the General Land Office had sought to protect by its temporary withdrawal policy. Hewett understood that "if the areas already withdrawn from entry could not be converted to permanent status, the work of early preservation advocates and their allies would be wasted" (Rothman 1989: 55). Hewett had played a rote in developing the policy of temporary withdrawal (Ise 1961: 148) and had prepared reports identifying the most important ruins in need of protection (Hewett 1904c, 1905c). In addition, he had praised the General Land Office for its enlightened approach on many occasions (Hewett 1904b: 727; 1904c: 4, 17; 1905c: 591–92).
There was also the problem that the Congress had displayed little enthusiasm for establishing national parks, for example, Pajarito, Mesa Verde, and Petrified Forest (Lacey 1915d). Therefore, Section Two of Hewett's draft authorized the President to set aside the unique places as national monuments (Lubick 1996: 54). Hewett frequently expressed the view that if his general bill were to pass, Section Two could be used to establish a Mesa Verde National Monument, especially since the Mesa Verde National Park bill was in some jeopardy (Hewett to Kelsey, 26 January 1906, AIA). Hewett made no mention of parks in his draft, which made his wording less threatening than earlier efforts to combine the general and the park approaches. Moreover, by placing the national monument idea in Section Two he avoided having land withdrawal appear in the first sentence or in the title of his draft. Nor did he compare his proposed monument authority with existing authority to create forest reserves, a feature of earlier drafts, beginning with Dolliver in 1900, that was offensive to many Westerners.
It is interesting to note that when Hewett discussed his two-fold classification of archaeological sites in print, he always listed the special category that merits permanent preservation first and the "all other" category that deserves only temporary protection second (Hewett 1904c: 4, 12; 1905c: 590). The shift of emphasis in the bill reflects the tactical differences between an academic or administrative report and proposed legislation. Hewett tried to avoid language anywhere in the bill that might trigger debate over details, such as how much land would be withdrawn, by limiting the amount of land to "the smallest area compatible with the proper care and management" of the monument. There was, after all, no consensus on this subject. Casa Grande was just under 500 acres and Hewett had suggested in his Memorandum to Richards that "in many cases 10 acres are sufficient" (Hewett 1904c: 2). Colorado Senator John Franklin Shafroth wanted no more than 320 acres, but several years later another Coloradan, Senator Henry Moore Teller, who had served as Secretary of the Interior from 1882 to 1885, was willing to accept twice that amount.