The Antiquities Act was established in 1906 as a way for the president to single-handedly create new national monuments. The law provides the president with the express authority to proclaim “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as national monuments, “the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.”
Today, the new era of national monuments consist of vast swaths of vacant federal land, not specific structures or landmarks.
The Antiquities Act followed on the heels of Westward Expansion, which brought looting and vandalism upon antiquities found on public land throughout newer states and former territories. The environmental laws and protections we have today, such as the National Historic Preservation Act, were not yet in existence, and the president needed a way to expeditiously protect federal lands under imminent threat. The very first national monument was established just three months after the law was enacted. President Theodore Roosevelt designated 1,152 acres in Wyoming as the Devils Tower National Monument. In the 108 years since, the law has been used a total of 137 times by 15 presidents.
While the intended purpose of the Antiquities Act is to protect artifacts of cultural and historic significance, it has been used over the past 108 years as a political arrow in the quiver of many presidents. The act has allowed both Democratic and Republican presidents to work outside of the transparent public process that all other individuals and federal agencies must follow. This is one of the law’s major flaws.
We don’t disagree that many of the spaces and places protected over the last century are worthy of national monument designations. However, not all of these designations were made with public involvement or widespread local support. Federal designations have too great of an impact on local communities for them to be made without the involvement of those closest to the ground. If the proposed designation has widespread support at the local level, presidents shouldn’t have a problem moving the designation through a public process.
In Congress, our committees and subcommittees hear from expert witnesses and local officials as part of legislative review. If the committee review process is positive, bills are more likely to move through the system. If committee reviews go badly, bills are rightfully stalled until the sticking points are addressed. Presidents are not subjected to these same checks and balances when it comes to the Antiquities Act. They are not required to engage the public throughout the process.
Like Congress, the president ought to formally be required to consider the input of local communities and states prior to declaring new national monuments. The inequity of unilateral action lends itself to heavy political influence and pressure from special interests. This is why we are supporting the Ensuring Public Involvement in the Creation of National Monuments Act, which would require the application of the National Environmental Protection Act (NEPA) to future national monument designations.
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.