1906 American Antiquities Act is an Unconstitutional Land Grab

by Harrison H. Schmitt, Americas Uncommon Sense

Schmitt170Had modern extreme conservation beliefs been in ascendancy during the 18th and 19th Centuries, there would have been no transfer of Western Lands into private or State hands. The negative consequences of such a different history to the wellbeing of Americans and the world would have been enormous.

The mineral, energy, and agricultural resources necessary to fuel our economic growth would not have been available. That economic growth could not have supported the worldwide defense of liberty through two World Wars, a Cold War, and now a war against Islamic Terrorism. The need for that internally supported economic growth has not changed. In fact, the urgency for it has increased as foreign sources of energy and other resources become increasingly unreliable.

The Founders gave Congress significant power in dealing with federally controlled land. First of all, Article IV, Section 3, Clause 1 of the Constitution asserts, “New States may be admitted by the Congress into this Union” from territories controlled by the Federal Government. Clause 2 follows and gives Congress the further

“power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”

Having these clear powers, however, does not permit otherwise unconstitutional overreaching by either the Congress or the Executive. In particular, with the Antiquities Act of 1906, Congress unconstitutionally gave dictatorial land withdrawal power to the President.

Clearly, only Congress has this power of disposition as enumerated in Clause 2.

Presidents, in turn, have further violated constitutional equal protection guarantees by using Executive Orders to create extremely large area “National Monuments” with the sole purpose of withdrawing Western land from resource exploration and development. These actions go well beyond the clear intent of the Antiquities Act relative to size of withdrawals and their allowed purpose.

In addition to the limitations of powers in Article IV, “equal protection of the law” provided by the 5th and 14th Amendments constitutes the primary constitutional constraint on the Congress and the President in actions relative to federally controlled land and property. The Government violates constitutional equal protection most generally by restricting the land-related economic and recreational activities of residents of Western States when no comparable restrictions are possible in most Eastern States.

Wilderness and Monument designation for various western lands, establishment of private land buffer zones for endangered species, and regulatory and federal lawsuit roadblocks in the name of conservation also trample equal protection, as well as 5th Amendment’s guarantee of due process in many cases.

Additionally, Federal Government continues to alienate much of the West through its abuse of the 1906 American Antiquities Act through vindictive Presidential designation of certain public lands as “National Monuments.”

Increasingly, arbitrary Monument designations under the false umbrella of conservation negatively impacts local economic potential as well as adding to national dependence on foreign sources of energy and minerals. The Antiquities Act states its purpose and intent protection of

“historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interests,” most especially “antiquities.”

The Act also states that Monuments should be

“the smallest area compatible with proper care and management of objects to be protected.”

The purpose and intent of the Act clearly has been honored far more in the breach than in the word. Most Presidents ignore these explicit constraints and the Congress cynically lets it happen.

The purpose and intent of the Antiquities Act has been used to avoid the normal, intentionally cumbersome process envisioned by the Founders for all major legislation. In this case, Congress avoids contentious debate on bills to create National Parks or Wilderness Areas. The purpose and intent of the Act itself have been violated from the beginning as President Theodore Roosevelt and at least 12 of his successors have used the arbitrary power given to them to withdraw large areas of western lands from broad public and economic use.

Although some of the nearly 100 withdrawn areas have obvious antiquities and other scientific values, such as New Mexico’s Chaco Canyon National Monument (1906), or have little defined economic resource potential, such as the Grand Canyon National Monument (1906), others would need extensive study to confirm that their withdrawn esthetic value exceeds that of other pressing commercial, State, or national requirements. In the latter instance, obvious questions exist about President William J. Clinton’s designation of the Utah’s resource-rich Grand Staircase-Escalante National Monument (1.9 million acres) without legislative and public debate.

Congress made a few state specific amendments to the Antiquities Act in response to perceived Presidential abuse of power. This happened in 1950 after President Franklin D. Roosevelt’s designation of the Jackson Hole National Monument (later added to the Grand Teton National Park) and again in 1980 after President Jimmy Carter’s egregious and extremely controversial withdrawal of 56 million acres in Alaska. Otherwise, Congress has unconstitutionally acquiesced to Presidential acts of hubris and authoritarianism far in excess of the Act’s original intent to protect antiquities. Congress’ first mistake, after not eliminating the Act’s basic unconstitutionality under Article IV, was to not set a specific size limit on a monument that, if exceeded, Congress must approve.

The socialists currently in control of the Government, for the narrow political purpose of gaining more power over private and State initiatives, do not and cannot admit that both the States and the people have strong direct interests in conserving natural environments. Federal oversight is one thing, heavy-handed restrictions that ignore broad State and national wellbeing is quite another. The advance of technology to explore for and extract resources without significant environmental impact threatens these opponents of progress in their attempts to destroy the livelihoods of the citizens of the West.

The new Congress elected in 2010 must restore constitutionality to federal management of Western lands and to federal activities in general.

In addition, cooperative pubic, industry, State, and Federal Government assessment of the resource, recreational, and overall economic potential of federally controlled land areas would allow fair evaluation of the benefit-cost relationships related to any constitutionally proper, land management decisions. New technologies and techniques, including non-invasive geophysical, geochemical, and geological evaluation methods, when combined with minimally invasive and helicopter-enabled scientific drilling tests, would give all parties an objective foundation for evaluation of particular land management proposals.

The Great Western Land Grab will continue until elections change the perspective of Congress and the President on the value of a true federal system of government supported by liberty and human initiative.


2 thoughts on “1906 American Antiquities Act is an Unconstitutional Land Grab”

  1. It was my understanding that congress was to dispose of the territorial lands that were put under their control; ie, sell it. It is plain to see that while all States were to be on an equal footing, the western States got the shaft. If one were to look at the federal governments purchase of lands in the eastern States, for the purpose of forts, dockyards, and other needful bldgs, etc.etc. what you will find is that the States sold them no land at all, they granted leases. In most of these leases you would find clauses to this affect.

    When said fort, dockyard, bldg, etc.etc. ceased to be used to the benefit of the people of said State, the lease will be considered broken, and null and void at that time.

    its past time to get the feds off of the States lands, and end the PILT system of welfare.

  2. frederick J. Hammel

    Antiquities Act, sections 2 and 3

    "Sec. 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 all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected: Provided, That when such objects are situated upon a tract covered by a bona fied 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.

    Sec. 3. That permits for the examination of ruins, the excavation of archaeological 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 the may deem properly qualified to conduct such examination, excavation, or gathering, subject to such rules and regulation as they may prescribe: Provided, That the examinations, excavations, and gatherings are undertaken for the benefit of 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". I can see given the President the power to protect things that give this country a history. Many peoples and cultures have live on these lands long before we Europeans came to this Country, Like the Irish, Jews, Norwegians, Chinese . There is a lot of history these peoples left to explore . Making national parks was not the intention of the Antiquities Act.

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