PRESERVING AMERICA’S ANTIQUITIES

By Andrea Cooper

A law enacted at the turn of the 20th century has had a tremendous impact. It continues to be relevant today.

Using the powers granted him by the Antiquities Act, President Theodore Roosevelt proclaimed the Grand Canyon a national monument in 1909.

For nearly a hundred years, a surprising tool has been essential to our nation. This tool defended the sheer-walled canyons and ancient Pueblo dwellings at Bandelier National Monument. It revealed our prehistoric ancestors at Russell Cave. It embraced towering redwoods at Muir Woods. And it protected the unique American wonder called the Grand Canyon. Without this tool, places of extraordinary beauty and archaeological significance might have been lost.

The American Antiquities Act of 1906 doesn’t have a sexy name. But in its 97th year, the act is still powerful and controversial. Widely recognized as the first general statute on archaeological and historic preservation in the U.S., it laid down the principles and philosophy of American archaeological law for generations to come, and gave birth to more than 75 national monuments. “It was a landmark piece of legislation, and the effect on the nation has been far greater than its creators ever imagined,” said Mark Michel, president of The Archaeological Conservancy.

Though it might be hard to imagine anyone arguing against protection of the Grand Canyon, the act and its uses have been disputed since President Theodore Roosevelt signed it into law. The act faced serious court challenges in the 1970s, rallying archaeology advocates to lobby Congress for a strong supplementary law, the Archaeological Resources Protection Act of 1979. Last year, the act survived a new court challenge following President Clinton’s designation of several new national monuments, including Canyons of the Ancients, in the Mesa Verde region of southwest Colorado.

In three paragraphs, the act defined our national standards for archaeological and historic preservation. Each paragraph imparted a separate and lasting benefit. The first section created basic public policy concerning archaeological resources. It declared that on any land owned or controlled by the federal government, individuals could not “appropriate, excavate, injure, or destroy” any historic or prehistoric ruin or monument, or any object of antiquity, without permission. The net effect?

“It established a national interest in American archaeological sites. The places and objects within them were of public interest, and any single individual couldn’t go onto federal land and take away an object,” said Frank McManamon, chief archaeologist for the National Park Service.

Until the act, people removed archaeological objects

without much fear of recrimination. Some simply looted, hoping to sell their finds for a handsome price. Others, notably amateur archaeologists and explorers, believed they were saving objects by recovering them, even if they eventually sold their finds. The new law made it clear that our archaeological past belongs to the people as a whole, not to individuals. In its nuances, the act defined a new way of thinking. “It suggested the objects’ primary value is in what they can tell us about the past,” McManamon said. It was Theodore Roosevelt established 18 national monuments during his presidency. Six now the responsibility of were created primarily to preserve historic and prehistoric structures and objects. the federal government to protect and interpret the nation’s archaeological and historical resources so our people might learn about the past. Section two put presidential muscle to work. It gave the President of the United States power to declare “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as national monuments. The law applied only to land the federal government owned or controlled. Even so, it restricted monuments from most commercial activity. To some people in the U.S., then and still, those are fighting words. “It was very astute politically that this was number two in the act,” said Raymond H. Thompson, a retired professor of anthropology at the University of Arizona and former director of the Arizona State Museum. “Politicians knew there were plenty of people in the West who wanted to preserve land for their own private use.” Had this provision been highlighted in the act, “it would have killed it immediately,” Thompson said. Section three offered an assurance: The federal government would grant permission to examine ruins, excavate archaeological sites, or gather objects of antiquity to those “properly qualified to conduct such examination...for the benefit of reputable museums, universities, colleges, or other recognized scientific or educational institutions...” In 1906, archaeology was a young discipline in this country. Many Americans were unfamiliar with what it could achieve. “The act really gave a shot in the arm to professional archaeology as an appropriate way of researching artifacts,” McManamon said. Considering the impact of the law, it’s probably not Byron May proudly brandishes human remains looted from an archaeologi- surprising the debate to enact it lasted 25 years. In 1882, cal site in the Gila National Forest in New Mexico. This photo helped con- many groups became alarmed about the growing vandalvict May and his partner, William Smyer, of looting under the Antiquities ism at American Indian ruins. Collectors, some from Act in the late 1970s. other countries, were taking objects from such spectacular

These ruins are found at Wupatki National Monument near Flagstaff, Arizona. President Calvin Coolidge made Wupatki a national monument in 1924.

sites as Chaco Canyon and bringing them home. One Swedish explorer, Gustav Nordenskiold, excavated at Mesa Verde; his collection ended up in the Finland National Museum, much to the chagrin of many Americans.

At the same time, major public exhibitions, including the World’s Columbian Exposition in Chicago and the Louisiana Purchase Exposition in St. Louis, exposed more people to American antiquities. This young nation lacked the grand monuments of the Old World. But it could take pride in its natural glories, from Niagara Falls to Yellowstone. Why, then, did it take so long to get a law passed to protect our archaeological history?

Former Secretary of the Interior Bruce Babbitt, in a commentary on the act, identified several reasons that sound familiar today. “As has been heard regularly since, detractors of the effort to provide protection and preservation first argued that the government couldn’t possibly protect all of these resources,” Babbitt wrote. “Others, already alarmed by the creation of forest reserves, objected to creation of another means by which the President could set aside large areas of the public domain for conservation or preservation.” Those who favored commercial uses of public land believed too much land would be set aside for the “public good.”

Even proponents of antiquities legislation disagreed about what should be included. The Smithsonian Institution wanted to control archaeological research in the West. A variety of Eastern universities were opposed to the Smithsonian’s intentions. Meanwhile, the Department of the Interior wanted to set up archaeological sites as national parks. “The groups were working towards the same goal but presenting entirely different bills to Congress to accomplish it,” said Thompson. “Congress responds when competing players get together and present a unified front.”

The act resulted from a most unlikely trip. Archaeologist Edgar Lee Hewett of Santa Fe invited Iowa Congressman John Lacey, the powerful chairman of the House Committee on Public Lands, to see cliff dwellings and other archaeological marvels for himself. Lacey, an ardent conservationist, accepted the invitation, traveling by rail to the Southwest. The pair embarked on a two-week trip. Think about that for a minute—a congressman giving you two weeks of his time, traveling by horse and buckboard through treacherous desert and ravines, hauling provisions and camping every night. “In 1904, going to Chaco Canyon must have been a fantastic adventure,” said Michel with a laugh. That trip to the edge of nowhere left a deep impression. Lacey sponsored the version of the Antiquities Act that passed in 1906.

President Theodore Roosevelt promptly took advantage of his newfound power, declaring such varied sites as Gila Cliff Dwellings in New Mexico, Devils Tower in Wyoming, the Petrified Forest in Arizona, and the Grand Canyon national scientific or historic monuments. The National Park Service, established just 10 years later in

The Gila Cliff Dwellings in southwestern New Mexico were proclaimed a national monument in 1907. These dwellings were built in the late 13th century.

1916, gave the federal government an efficient way to administer the new national parks and monuments. Until then, a hodge-podge of agencies, including the Army, had managed these resources.

The act even protected archaeological sites from the government itself. When the Tennessee Valley Authority constructed dams on the Tennessee River during the Depression, officials made an effort to rescue archaeological information before sites were destroyed. Later, the Federal Power Commission, which grants authority to build interstate and intrastate power lines, required that all archaeological work be done in advance of construction. “It’s since been established that any use of the power of federal government—including indirect action such as the issuing of permits—can open the door for protection of archaeological remains,” said Thompson.

Presidents throughout the 20th century, including Wilson, Hoover, Coolidge, Franklin Roosevelt, Eisenhower, Kennedy, and Carter, declared national monuments and provoked some fights. One memorable uproar came during wartime, according to historian Ronald Lee. In 1943, use of the act for establishing new monuments “came to an abrupt halt following the proclamation of Jackson Hole National Monument in Wyoming by President Franklin D. Roosevelt,” wrote Lee in a history of the act. “President Roosevelt’s action aroused tremendous and bitter opposition in Wyoming and in Congress.” No more national monuments were proclaimed for 18 years. Several presidents after Roosevelt created national monuments during their very last days in office.

Even with the controversy, two laws later strengthened the basic principles of the Antiquities Act. The Historic Sites Act of 1935 says the government has a responsibility to provide technical assistance to historic American sites, buildings, objects, and antiquities of national significance, even those on private land. The National Historic Preservation Act of 1966 broadened the government’s responsibility to provide recognition and technical assistance to historic properties of local or state significance.

Of course, simply recognizing archaeological information is valuable doesn’t mean it will be protected. The Antiquities Act didn’t stop theft, because few federal agents or archaeologists were at sites to prevent it. “There was almost no enforcement of the anti-looting provisions until the 1970s. No one was pushing for it,” said Michel. Besides, the penalties weren’t all that strict: a fine of not more than $500, imprisonment for not more than 90 days, or both.

Then a court case threatened the very foundation of the act. In 1974, Ben Diaz of Phoenix was arrested for removing Apache religious objects from the San Carlos Reservation. Diaz appealed because the objects were only a few years old. The Ninth Circuit Court of Appeals ruled in his favor and found the criminal provisions of the Antiquities Act unconstitutional because they did not clearly define such terms as “object of antiquity,” “ruin,” and “monument.”

The decision made a bad situation worse. In the early 1970s, prices soared for prehistoric Indian pottery from the Southwest. “Professional looters armed with backhoes and front-end loaders were taking apart entire pueblo ruins in search of treasure. They left nothing behind,” Michel wrote in one account of the time.

A year after the Diaz case, two men were apprehended while looting a Mimbres ruin in the Gila Forest. The Diaz ruling didn’t apply because they were in a different jurisdiction; eventually they were found guilty under the Antiquities Act. But the trend was clear: the na-

In a controversial use of the Antiquities Act, President Franklin D. Roosevelt made Jackson Hole, Wyoming a national monument in 1943. It is now part of Grand Teton National Park.

tion needed a tougher law with harsher penalties that went after organizers and dealers in stolen antiquities.

That feeling was reinforced in 1977 when Scott Camazine, a Harvard medical student, was arrested while looting a prehistoric ruin on the Zuni Reservation in New Mexico. At trial, the U.S. magistrate ruled the Antiquities Act was unconstitutionally vague. The government couldn’t appeal because of a legal technicality. Now the Antiquities Act was void in New Mexico and all of the western states of the Ninth Circuit.

Working for the Society for American Archaeology, Michel led the charge for a new law to supplement, not replace, the Antiquities Act. He was racing against time—in 1978, the Antiquities Act was declared invalid in Arizona.

Michel worked closely with Congressman Morris Udall of Arizona and Senator Pete Domenici of New Mexico to introduce the Archaeological Resources Protection Act (ARPA) in February 1979. President Carter signed it into law later that year. ARPA prohibits looting, trafficking in, transporting, or receiving looted artifacts from federal lands. Depending on the value of the stolen artifacts, penalties include up to $20,000 and two years of jail. Anyone cavalier enough to loot a second time faces a possible five years imprisonment and $100,000 fine. ARPA also imposes civil penalties to cover damages and restoration costs for ravaged sites.

The latest brouhaha over the Antiquities Act arose in 2000, when former President Clinton created the 164,000-acre Canyons of the Ancients National Monument to protect thousands of Anasazi and other ruins in the Mesa Verde area, including villages, cliff dwellings, shrines, and rock art. Though the executive order allowed for existing cattle grazing and natural gas development to continue, his action was challenged in court by the Mountain States Legal Foundation, which opposes preservation efforts in the West. The U.S. Court of Appeals in the District of Columbia recently upheld Clinton’s use of the act.

Some leaders in archaeology, such as the Park Service’s Frank McManamon, believe our laws aren’t tough enough because they don’t cover what occurs on private land. That may be the next frontier for archaeological law. Until then, we can credit progressive legislators 100 years ago for protecting American archaeological treasures.

As Ronald Lee wrote, “This generation, through its explorations, publications, exhibits, and other activities, awakened the American public to a lasting consciousness of the value of American antiquities, prehistoric and historic. This public understanding, achieved only after persistent effort in the face of much ignorance, vandalism, and indifference, was a necessary foundation for many subsequent conservation achievements.”

ANDREA COOPER has written most recently for Reader’s Digest, Saveur, and National Public Radio’s “All Things Considered.”