America's National Monuments
The Politics of Preservation
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Chapter 11:
The Antiquities Act and the Modern Park System

The battle over the Jackson Hole National Monument was the last of the first generation of conflicts between the interests of conservation/preservation and unregulated use of land. Wyoming pitted its rights as a sovereign state against those of the federal government—a battle not unlike the one Ralph Henry Cameron had fought against the Park Service at the Grand Canyon—and lost. Despite vindication of their position, Park Service officials recognized the importance of good relations with individual states. The agency had further objectives in the region and used the legal victory as a place from which to negotiate a compromise.

As a result, the court case served as an indirect prelude to the abrogation of the Antiquities Act. During the late 1930s and 1940s, other park projects created controversy in Congress. The Park Service lost much of its support in Congress as a result of weak leadership, attrition, and retirement. The need for the development and interpretation of new park areas made the Antiquities Act a less formidable tool for preservation. Coupled with the unfavorable coverage the entire Jackson Hole episode generated, congressional uproar and greater public expectations made agency officials reconsider its assumptions about further expansion of the national park system.

The discovery phase of American preservation ended before the beginning of the New Deal, and the Antiquities Act became an anachronism that recalled the Progressive-era values that shaped the early years of the agency. Between 1906 and 1944, the hegemony that invested the presidency with unlimited authority broke down. The rush also went out of the reservation of park areas. New additions were no longer established just ahead of bulldozers and dam builders. Money for developing areas other than national parks became available. As the Park Service realized the value of all its different categories of areas and developed the kinds of programs that built and sustained an infrastructure, it spread its resources more evenly among the park system. Cooperation with Congress became critical to the future of the system, and the appeal of the advantages of the Antiquities Act diminished. In an environment where the pronouncement of the establishment of an area meant less than its subsequent development, limits on uses of the Antiquities Act became inevitable.

Although in 1943 Earl Warren, then the governor of California, suggested to a conference of western governors that they work together to abolish the Antiquities Act and Wyoming senator Joseph O'Mahoney cosponsored a bill in the Senate to that end, the abrogation of the Antiquities Act came only in 1950. The heated exchanges of earlier years cooled considerably in the postwar climate, and the participants negotiated an amicable compromise. What the NPS and the president sacrificed to acquire the new and enlarged Grand Teton National Park, which included the disputed Jackson Hole National Monument, was the right to use the Antiquities Act within the boundaries of the state of Wyoming. [22]

The NPS gave up little in the compromise, for the role of the Antiquities Act had already diminished. After the division into regions in 1937, the Park Service gradually ceased to use the designation of an area to determine its value to the system. The manner in which an area entered the system became less important than its potential, and because most of the important areas in the public domain had long before been scrutinized for membership in the park system, the legal limits upon its use were no greater than the restrictions the agency placed upon itself.

Under this kind of integrated management, the monuments fared better than they ever had. The last vestiges of second-class status for the national monuments disappeared with the initiation of Mission 66, a ten-year capital improvement program designed to rejuvenate the park system in honor of the fiftieth anniversary of the Park Service in 1966. Mission 66 financed capital development programs in all categories of park areas. More than 2,000 miles of roads were built or improved, and the modern visitor centers that highlight many park areas were also developed. [23] Another ramification was the development of new criteria for assessing the needs of park areas. Designation ceased to be of paramount importance; instead, the popularity of an area with the public became a more accurate measure of its position within the system.

During and after Mission 66, distinction between categories of NPS areas became nearly indistinguishable. No longer were monuments slighted because they remained in the monument category; publicity, appropriation, and maintenance were determined more by need than by the nomenclature of an area. Yet later national monuments formed the basis for the creation of new national parks, as did the way-station monuments of the 1910s and 1920s. Older national monuments, such as the petrified Forest and Arches, became national parks; other areas, such as Chaco Canyon, which went from national monument status to that of national historic park, also acquired new designations in the constant attempts of the Park Service to lend even a peripheral sense of cohesiveness to the elements that comprised the system. A plethora of categories were available and the title of national monument, when bestowed by a Congressional bill, was increasingly reserved for areas that showed something of pre-European physical or cultural life on this continent. [24]

The new additions to the system were different than their predecessors at the turn of the century. In the continental United States, new park areas were rarely undiscovered. Most often they represented a change in emphasis by the agency or Congress, or a reevaluation or recognition of the resource that the area contained. The excitement of urgency left the preservation process, and additions to the system became part of a process of choosing between similar alternatives. Particularly after the civil and women's rights movements of the 1960s and 1970s, areas that the Park Service would not have recognized as significant in 1920 became important additions to the system. As the message of the park system changed to fit the times, the areas added to it reflected new values. The process of determining appropriate new areas became more selective, yet somehow less critical to the survival of the system. The pressure was off the Park Service and it ceased to have to rely on the instincts of its leaders.

Yet more and more, the restrictions upon park areas came from outside the agency. The insistence of Congress on maintaining control through appropriations effectively prevented the Antiquities Act from being an important weapon in the preservation arsenal. The use of the Antiquities Act was no longer the primary way to preserve a worthy location; instead it became an emergency step used when all other means had failed. If the NPS was to receive funding for a monument authorized by the Antiquities Act, the Interior and Insular Affairs Committee of the U.S. House of Representatives often insisted that the agency request and receive its approval prior to the issuance of a proclamation. Only upon receiving committee approval would budgets for newly established areas be sanctioned. As a result, after 1950 most new national monuments were created by Congress and the Antiquities Act was invoked for their proclamation. Rare occasions saw presidents use the discretionary power that the Antiquities Act offered.

There were, however, a number of cases in which executive fiat made a mockery of any legislative attempts to control the establishment of new areas or even the type of park area labelled a national monument. During each of the Eisenhower, Johnson, and Carter administrations, the NPS and the Department of the Interior made at least one use of the Antiquities Act without the prior sanction of Congress, recalling vividly the administrations of Theodore Roosevelt and Franklin D. Roosevelt, as well as other presidents who regarded executive power over the public domain as an important part of their responsibility. Each attempt created problems, even with members of the president's own party.

Two of the most significant cases of executive proclamation, the establishment of the Chesapeake and Ohio (C & O) Canal in 1961 and the Marble Canyon in 1969, were lame-duck proclamations, following the tradition begun by Theodore Roosevelt with the Mount Olympus National Monument and elevated to an art form by Herbert Hoover after his defeat by Franklin D. Roosevelt in 1932. [25] Another group of important national monuments proclaimed without congressional approval since 1950, the "d-2" group established in Alaska in 1978, mirrored earlier cases where threats of exploitation loomed large. In all cases, at the request of the NPS and the Department of the Interior, the president proclaimed as national monuments areas Congress had considered but had not made national parks. These were maneuvers of the Jackson Hole National Monument variety, the establishment by fiat of areas that Congress would not otherwise reserve.

The establishment of the C & O Canal National Monument in 1961 ended nearly a decade of debate about the character of the park area for that locale. Initial NPS proposals were to develop a parkway, but due to citizen initiative led by Supreme Court Justice William O. Douglas, the canal was ultimately established as a walkway rather than as a road. After nearly seven years of discussion and with the inauguration of John F. Kennedy approaching, Dwight D. Eisenhower attempted to resolve the situation with the establishment of a national monument in the final hours of his administration. [26]

Congressman Wayne Aspinall, the chairman of the House Committee on Interior and Insular Affairs, disapproved of such bold executive action. Aspinall's position was that since Congress had to appropriate money for the upkeep of the C & O Canal, no matter how the law read, the legislative branch was entitled to input in the process. Aspinall took a hard-line position, stating that if the president was going to circumvent Congress, then he was going to have to pay for the activation and subsequent needs of any such area out of his own pocket.

Eisenhower's proclamation did not give the Park Service everything it wanted. As in many cases, the initial proclamation was a short-term solution designed to enable further development of the area. It began the process of transforming the C & O Canal to national historic park status, which required congressionally appropriated funds. Aspinall stuck to his position and throughout the 1960s refused to fund development of the park. In effect, the powerful congressman annulled most of the power that remained in the Antiquities Act; any future use of the act unsanctioned by Congress was sure to create controversy. Although rarely used during the prior decade, after the C & O Canal controversy, the Antiquities Act became a measure reserved for emergency or lame-duck situations. [27]

It took less than a decade for the legislative and executive branches to clash over the Antiquities Act once again. During the "lame-duck" portion of his term in 1969, Lyndon B. Johnson established the Marble Canyon National Monument as part of a program to leave a final legacy of his term. Secretary of the Interior Stewart Udall recommended the reservation of large areas of Alaska as well as the fifty-mile area between the Grand Canyon National Park and Glen Canyon National Recreation Area as additions to the National Park System. Johnson apparently was ready to use the Antiquities Act to proclaim nearly eight million acres of national monuments, but in what has been called a "series of excruciating coincidences," the original plan was altered and the one eventually enacted added less than half a million acres to the system. [28]

In December 1968, Richard Nixon announced his new Secretary of the Interior, Gov. Walter Hickel of Alaska. Like the West at the end of nineteenth century, Alaska had been a hotbed of anti-conservationism. Many Alaskans felt that there was too much government intervention in the affairs of their state, and Hickel would have to serve his constituency. His appointment put the sizable Alaskan part of the project in doubt. President Lyndon B. Johnson wondered whether the Governor would offer any support for the new parklands in his state and used this as a reason to delay the proclamation.

The NPS continued to prepare for the reservation of the lands that Udall recommended. Agency officials believed the President would go forward with the proposed proclamations on 19 December 1968 as a "conservation Christmas gift to the nation." One day before the scheduled proclamations, Johnson became ill with the flu. The proclamations were again postponed, but the NPS still had reason for hope. In his final State of the Union address on 14 January 1969, Johnson announced: "there is more [parkland] going to be set aside before this administration ends." [29]

But Udall had not cleared the project with all the pertinent people on Capitol Hill. The congressional delegations of the states involved received briefings. Senator Henry Jackson of Washington, Chairman of the Interior and Insular Affairs Committee in the Senate, pledged his support; his counterpart in the House of Representatives, Wayne Aspinall, had not been informed. Despite his stance on the Chesapeake and Ohio Canal, Aspinall had helped the Park Service in a number of situations; he was instrumental in preventing a compromise which would have allowed mining in Canyonlands National Park. But as the C & O Canal showed, he was also a staunch advocate of congressional jurisdiction over the establishment of areas that required funds from Congress. From Aspinall's point of view, the proclamation was an attempt to "by-pass Congress." [30]

The legislative and executive branches were prepared to do battle over the President's right to exercise power granted him by the Antiquities Act. From Udall's point of view, the proclamation offered the last chance for the addition of important lands to the Park System under a sympathetic administration, and the Antiquities Act was the only remaining tool that served the purpose. From Aspinall's perspective, it was an arrogant challenge to congressional authority and a blatant usurpation of the powers of the legislative branch. He objected on principle to the manner in which the lands were established, not to the reservation of the land itself. In essence, the battles of the early twentieth century were recast in the terms of the 1960s.

But even as a "lame duck," Lyndon Johnson could not afford to be as cavalier with Congress as could Theodore Roosevelt. As he threatened, Aspinall could prevent the appropriation of funds for as long as he remained in Congress. With control over that crucial element of the preservation process in the hands of an angry Congress, the new areas might have become nonexistent entities, similar to the national monuments before Frank Pinkley brought them to prominence. In the end, an unhappy compromise was reached. The Marble Canyon National Monument was established, and almost 350,000 acres were added to existing park areas in Alaska, but the additions fell far short of the nearly 8 million acres that Udall proposed. Among the costs of the endeavor was the creation of an adversarial relationship between the ex-president and his former secretary of the interior. [31]

Sixty-three years after its passage, the Antiquities Act remained a point of contention between the president and Congress. Its capricious powers continued to present adamant presidents and agency directors with a direct way to achieve desired goals. Its broad powers offered solutions in seemingly irresolvable situations. It remained a "court of last resort" in public domain matters so long as the president, the secretary of the interior, and the NPS were willing to face the consequences of an alienated and often furious Congress.

The most recent use of the Antiquities Act, the proclamation of large sections of Alaska as national monuments by Jimmy Carter in 1978, fit the pattern established for the use of aggressive executive power since 1950. Like the proclamation of Muir Woods and many other early national monuments, the establishment of the Alaskan national monuments was a response to the threat that lands reserved under the section 17 (d)(2) provision of the Alaska Native Claims Settlement Act of 1971 would revert to public domain or state control and eventually be sold for commercial purposes. Like the temporary withdrawals made by the GLO at the end of the nineteenth century, the d-2 lands were reserved so that they could be sorted into appropriate categories when Congress could agree on the proper way to complete the project.

The withdrawal in 1978 paved the way for "lame-duck" congressional establishment of what has been called the "Alaskan National Park System" in 1980. More than a stopgap measure, Jimmy Carter's proclamations sprang from the same vision of governmental responsibility that motivated the decisions of Theodore Roosevelt, Herbert Hoover, and Franklin D. Roosevelt. Faced with the need for swift and decisive action in the national interest, Carter used the aggressive and arbitrary power willed him by an earlier generation of American leaders.

The Alaskan Native Claims Settlement Act of 18 December 1971 authorized the secretary of the interior to select up to 80 million acres of public land in Alaska for possible inclusion in federal land reservation systems. The law gave the secretary two years within which to make his recommendations and an additional five beyond the original two for Congress to act upon the suggestions. In 1973, Secretary Rogers C. B. Morton made his recommendations, which included 32.3 million acres for the national park system.

Bills for and against the proposal made little progress until the 1977-78 session of the 95th Congress, when Morris K. Udall introduced H.R. 39. A compromise version of Udall's bill passed the House on 18 May 1978, but Alaskan senators Mike Gravel and Ted Stevens prevented action on a similar bill in the Senate. With no successful action during the 95th Congress and 18 December 1978, the date upon which the withdrawn lands would revert to the public domain, approaching, the only remaining tool available to change the temporary withdrawals into permanent ones was the Antiquities Act. On 1 December 1978, Jimmy Carter proclaimed fifteen new national monuments, eleven under NPS jurisdiction and two each for the Forest Service and the Fish and Wildlife Service. [32]

In a situation recreating the urgent conditions for which it had been passed, the Antiquities Act once again became the most effective and expedient way to achieve preservation goals. Congressional disapproval was a smaller problem with areas in Alaska than it would have been elsewhere. Like the inaccessible monuments at the turn of the century, many of the "d-2" national monuments were remote enough to be insulated from the threats of depredation and vandalism. As were their counterparts eighty years earlier, the new Alaskan monuments were more susceptible to legal encroachment: land claims, energy exploration, or commercial exploitation of another kind. But once reserved, they could exist safely with minimal funding for maintenance and upkeep, a fact that put their creation beyond the control of Congress. The Alaskan national monuments were "pre-created" as protection against future growth and exploitation. They ensured the availability of parkland when it became necessary.

As did earlier "waystation" monuments, the Alaskan monuments became national parks during the "lame-duck" session following a president's ouster. Jimmy Carter's defeat in 1980 was the catalyst for the transformation. Alaskan senators had fought proposals every step of the way, and their efforts limited the chances of park bills. On 19 August 1979, a more limited conservation measure than earlier House bills passed the Senate. Feeling their power ebb after the election of Ronald Reagan, advocates orchestrated a compromise. Rather than risk an even less comprehensive piece of legislation under the incoming Reagan administration, House supporters accepted the more limited Senate bill on 12 November 1980. On 2 December, Jimmy Carter signed into law the Alaskan National Interest Lands Conservation Act [ANILCA]. Under its terms, a total of 47,080,730 acres were added to the national park system. [33]

Carter's use of the Antiquities Act in the Alaskan situation revealed that the law remained a viable way to achieve short-term preservation goals. It was available as a means to rapidly reserve threatened land; a sort of peacemaker, the Antiquities Act bought time for the National Park Service, the Department of the Interior, the president, and Congress. It permitted an intelligent decision to be made regarding the permanent status of the various lands, for it gave the conflicting parties the opportunity to work out the details to the satisfaction of most of the participants.

In many ways, the Alaskan national monument proclamation was in keeping with the uses of the Antiquities Act. Early uses of the act had made the diverse national park system of today possible; the more than 45 million-acre Alaskan reservation laid the basis for the national park system of the future. The same bold executive action that protected the Grand Canyon, Muir Woods, the Teton biota, and similar areas initiated the reservation of the inaccessible yet spectacular land in Alaska. The remote and forgotten monuments of the 1920s are on the visiting list of millions of American tourists today. In the coming decades, the Alaskan parks may be the salvation of the increasingly threatened park system.

Once again, the Antiquities Act has given the United States a new national park system into which to grow, much the way it provided the legal authorization for the system of today. Even when Congress passed the Archaeological Resources Protection Act of 1979, which rectified many of the shortcomings of the Antiquities Act, the section in the earlier law that authorized the president to proclaim national monuments remained unchanged. As it was designed to do in 1906, the Antiquities Act remains a way, albeit a controversial one, to put the interests of the general public ahead of those of any individual group of constituents.

In the rare cases in which it has been used by the president since 1950, the Antiquities Act has usually filled a gap much as it did at the turn of the century. The certainty of its powers and the speed with which it can reserve land in the public domain make it a unique piece of legislation from conservation and preservation perspectives. The Antiquities Act is a reminder of the executive discretion in the name of the greater good with which the United States once trusted its presidents; despite periodic uses rightly termed excessive, its legacy is generally one of placing the future of the nation over the present needs or desires of individuals. It is an important indication of the social obligation American leaders once felt to maintain the physical and cultural features in this country for the benefit of all Americans.

The unique category of park areas it established, the national monuments, have been poorly understood since their inception. Initially conceived to preserve archaeological ruins, the category grew to include the broadest range of areas ever reserved by a government for its people. Evolving into an integral part of the federal preservation of the natural and human past on this continent, the national monuments are truly monuments; their existence reminds Americans of the need to remember the past as well as of the necessity of preparing for a long-term future. Of aesthetic and cultural value, the national monuments are testimony to a vision of social responsibility shared by American leaders of an earlier time.


America's National Monuments: The Politics of Preservation
©1989, Board of Trustees of the University of Illinois
©1994, University Press of Kansas
All rights reserved by the Board of Trustees of the University of Illinois

rothman/chap11a.htm — 04-Feb-2005

Copyright © 1989 by the Board of Trustees of the University of Illinois. Material from this edition published by the University Press of Kansas by arrangement with the University of Illinois Press and may not be reproduced in any manner without the written consent of the author and the University of Illinois Press.