By Erin Hawley
...The Antiquities Act of 1906 made good
sense when enacted. A lucrative market for original artifacts led to the
widespread desecration of Native American burial sites across the West.
The Act criminalized such acts on federal land. It also authorized the
President to set aside national monuments to protect historical sites.
...The text and legislative history of the Antiquities Act, however, make clear
the statute was not intended to set aside hundreds of millions of acres
of federal land and water. The text cabins the executive’s discretion
in two ways. First, the president may preserve only identifiable
“objects” of historical or scientific interest. Second, adjacent land is
limited “to the smallest area compatible with the proper care and
management of the objects to be protected.”
...In an era when procedural protections
are a given, the Antiquities Act is an odd darling. It is a relic from a
prior time when speed was of the essence and other land protection
statutes did not exist. As Secretary Zinke explained, however, the act
is not a blank check. Its text includes clear internal limitations and
the Trump administration is right to review prior designations for
executive largess.
Erin Hawley is a legal fellow at the Independent Women's Forum, an associate professor of law at the University of Missouri, and a former clerk to Chief Justice John G. Roberts Jr.
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