Bears Ears (Revisited) – All About Landscapes

Howdy!

Last September, I wrote about the controversy surrounding the creation of Bears Ears National Monument, in Utah. I argued that while we as a nation have inherited the public lands of Southeastern Utah, that does not necessarily mean we own them. Furthermore, I suggested that as a consequence of the history of power relations in the U.S. West, “local” communities should not have “disproportionate power and authority to dictate land management strategies” on adjacent public lands. At the time, it was not certain whether or not the monument would be created.

Hills and Valleys

Looking south towards Comb Ridge from the flanks of the Abajo Mountains, Southeast Utah.

Well, in the waning days of his administration, President Obama used his authority under the Antiquities Act of 1906 to designate a new 1.35 million acre national monument – Bears Ears became a reality. The designation was applauded by conservationists, environmental groups, archaeologists and tribal groups. For others, the monument came as a bitter pill, and opponents of the designation decried it as a “federal land grab.”

Considering that nearly all the acreage that became Bears Ears National Monument was already administered by either the Forest Service or Bureau of Land Management, I’m not entirely sure who the federal government “grabbed” it from. I presume that opponents are referring to the possible removal of vast tracts of land from the county tax-base (lands that generate revenue through taxes on grazing and oil/gas extraction). Jonathan Thompson at High Country News deftly counters these arguments here. In addition, the proclamation creating Bears Ears National Monument explicitly states “the establishment of the monument is subject to valid existing rights” which means that any parcels already leased for various kinds of uses can be developed for those uses in the future.  The proclamation further outlines how Native American religious practices and traditional gathering activities are protected within the monument (indeed, Native concerns were one of the primary reasons behind the creation of Bears Ears Nat. Mon.).

Nonetheless, the creation of Bears Ears National Monument, and other monuments, painted a big target on the venerable, 111-year old Antiquities Act. The Antiquities Act has been the premier tool used to protect archaeological resources within the public commons, and it is therefore a legislative cornerstone of public archaeology in the United States. This post focuses on the Antiquities Act and the concept of landscapes in heritage preservation.

I will explore whether the president can abolish a national monument designation (SPOILER ALERT – he or she probably CANNOT). Then I’ll examine a couple of the key issues in the debate surrounding the Antiquities Act that archaeologists should consider, such as how “landscapes” are defined. The “relational landscape” (Dalglish 2012) is one way of thinking about landscapes, and I argue that it is consistent with the National Environmental Policy Act (NEPA) and may be useful for public archaeology in the U.S. West. Finally, I suggest that relational thinking may offer new ways to create legally defensible and coherent, holistic landscape designations. In addition, relational landscapes may help heritage preservation advocates build bridges with other environmental advocacy groups that have long experience working with Washington.

Also, you are duly warned – this post is primarily geared towards professional archaeologists.

Can the President Abolish a National Monument?

Because of powerful Western congressmen (like Senator Orrin Hatch of Utah) and President Trump’s disdain for government regulation, the national monuments created during the twilight of the Obama administration were immediately contested. On April 27th, President Trump drafted an executive order seeking to set policy for future monument designations and to review all monument designations made since 1996. This raised the question: can the president “un-make” a national monument made by a predecessor?

A critical passage in the Federal Land Policy and Management Act of 1976

A critical passage in the Federal Land Policy and Management Act of 1976

If you were looking for a definitive legal assessment of the president’s ability to revoke a national monument, look no further. In a forthcoming paper in the Virginia Law Review, Mark Squillace (prof. of Law, CU Boulder), Eric Biber (prof. of Law, UC Berkeley), Nicholas Bryner (Emmett/Frankel Fellow in Environmental Law and Policy, UCLA), and Sean B. Hecht (prof. of Policy and Practice, UCLA) outline the case law and prior legal analyses surrounding this question. The title of the paper says it all: “Presidents Lack the Authority to Abolish or Diminish National Monuments.”

In a nutshell, their argument runs like this:

  • Congress has the power to make rules regarding public property, but delegated some power to the President on this issue through the Antiquities Act.
  • Unlike other similar land-management acts, Congress DID NOT delegate the president the authority to unmake monuments.
  • Beginning as early as the 1920s, several legal decisions have upheld both the presidents ability to set aside large landscapes as monuments, as well as the inability of the president to modify or abolish prior monument designations.
  • The Federal Land Policy and Management Act of 1976 (FLPMA) (Pub. L. 94-579, 90 Stat. 2743) reaffirmed that the Antiquities Act was a “one-way street” – presidents can make monuments, but not “un-make” them.
  • The FLPMA also clarified that Congress reserved for itself the ability to modify or abolish national monuments.
  • The U.S. Supreme Court has upheld the notion that entire landscapes can constitute “objects of scientific or historic interest.”
  • The president cannot “second-guess” whether his or her predecessors defined a monument’s boundaries as the “smallest area compatible” with the protection of the resource.
  • Therefore, presidents cannot modify or abolish a national monument; only Congress can.

What Does This Mean for Archaeologists?

Well, a lot! But if I had to single out a few things that I think are important to consider after reading Squillace et al (2017), here they are:

1) Critics will continue to complain that national monuments exceed the “smallest area compatible with the proper care and management of the objects to be protected” (Section 2 of the Antiquities Act of 1906). This issue is highlighted in Section 2.(i). of Trump’s executive order; it has also been a frequent complaint of national monument critics in the West. When archaeologists advocate for the creation of national monuments, they must craft meaningful arguments for the holistic coherence of the landscapes within that area.

2) Courts have consistently upheld “landscapes” as appropriate “objects of historic and scientific interest.” However, many Antiquities Act critics seem to be under the impression that the main objective of the act is to protect artifacts or specific ruins. Archaeologists need to continue to promote the idea that landscapes are critical for understanding both the human past and the human present.

3) The Federal Land Policy and Management Act is more important than you think. As Squillace et al. (2017) point out, it codifies how executive and legislative power is delegated under the Antiquities Act, and how that power can be applied. Furthermore, it contains the mandates that federal land managers  “protect the quality” of scientific, archaeological, and other values while simultaneously recognizing “the Nation’s need for domestic sources of minerals, food, timber, and fiber” (90 stat. 2745 Sec. 102(a)). These contradictory mandates have resulted in a delicate “dialectic” that links the global and the local within the context of public lands. The contradiction will only become more apparent as global-scale forces (such as energy development, tourism, or climate change) intersect with the cultural heritage on publicly-owned landscapes in ever-more tangible ways.

Moving Forward – All About Landscapes

The FLPMA creates some of the tensions between development and conservation that characterizes the politics of archaeology on public lands today. These tensions are increasingly playing out at the level of the landscape. As we negotiate the shifting sands of politics and policy, we should think hard about the concept of landscapes and how we can contribute to defining coherent, holistic archaeological landscapes. The Antiquities Act can be read as legislative mandate to protect landscapes. An Obama-era executive order pushed for coordination between agencies to facilitate landscape-level management of public lands. But defining landscapes can be tricky. At a meeting on the Chacoan Landscape in 2014 I recall a federal land manager lamenting in frustration “You’ve got to do a better job telling me what a landscape IS before I can manage it!!!”

Clarifying the many meanings of landscape is not my goal here. But I would like to suggest that one way to work with landscapes is to stop considering them as simply larger-scale collections of discrete sites and think of them as a series of relationships between things (both natural and cultural). Chris Dalglish (2012) has elaborated on the concept of a relational landscape:

“The landscape is a dialectical web of relationships binding actors together. These relationships are social (between humans), material (between humans and the material world), ecological (between non-human elements of the landscape) and human ecological (between humans, other living things, and the wider environment), and they can be all these things at once. Landscape relations are unstable and changes to those relationships will involve changes both to the makeup of a particular constellation of human and non-human actors and to the very being of those actors.”

I applied this relational logic in my comments to Secretary of Interior Ryan Zinke regarding the executive order to review national monument designations made in the past 20-odd years (if you haven’t already sent in comments, do it soon! Link is HERE.). I argued that the landscape of Bears Ears National Monument WAS appropriately classified as a historic landmark or an object of historic or scientific interest and that the Monument boundaries were consistent with these designations.

One objective of the Monument is to encompass the unique socio-natural signature of the Ancestral Pueblo people who inhabited the canyon country of what is now Southeast Utah. It does so by preserving the full expanse of the social, material, ecological, and human ecological relations on the landscape. The cliff dwellings the ancient inhabitants are known for are related to the geology and environmental conditions unique to the area; the beautiful pottery they are famous for derives its color, texture, and appearance from the clays and pigments found within the area of the monument; the stone used to manufacture arrowheads and other tools is sourced from numerous specific locales within the monument.

Relational landscapes encompass interactions between many kinds of actors, both natural and cultural.

Relational landscapes encompass interactions between many kinds of actors, both natural and cultural.

Ancestral Pueblo people also acted back on the landscape, creating hand-and-toe trails across slickrock escarpments; their stone houses meld with the landscape while their domestic middens alter the character of the soil; Chaco-era road segments, shrines, and other features indelibly alter the landscape, crafting temporal and physical links between sites dozens of kilometers apart. In short, the people who lived on Comb Ridge, Cedar Mesa, and Elk Ridge could ONLY have been those people in that specific place and not anywhere else. There are few places in the world where the relationship between people and place is so clearly incorporated into the landscape. That’s why the entire landscape of Bears Ears National Monument qualifies as a historic landmark, and why the monument boundaries are necessary for preserving the integrity of that landmark.

This analysis is not meant to exclude the Ute, Navajo, and Euro-american relationships evident within Bears Ears National Monument, but only to show how landscape archaeology can support the designation of a monument.

What Can We (archaeologists) Do?

Sending in public comments to government agencies is important (though the recent suspension of BLM Resource Advisory Councils suggests the Department of the Interior is trying to enter the same echo chamber occupied by much of the rest of the current administration). But we also need to consider the praxis of archaeology. “Praxis” refers to theoretically informed practice. To defend national monuments where cultural heritage was a key reason for the designation, we need to continue to develop a robust praxis of public archaeology. I worry that we often labor under the assumption that laws, regulations, fieldwork, and technical report writing exist in a world divorced from archaeological theory. This misconception contributes to the wide gulf between academic archaeology and cultural resource management. I think this is particularly evident when considering landscapes – landscapes are more than just larger areas of potential effect! Archaeologists must consider how their actions at all levels of public archaeology reinforce, create, or subvert perceptions of socio-natural landscapes.

Radical readings of existing regulations is one place to start. For example, the National Environmental Policy Act (NEPA) states:

“The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment…declares that it is the continuing policy of the Federal Government…to use all practicable means and measures…to create and maintain conditions under which man and nature can exist in productive harmony….” [42 USC § 4331 Title 1, Section 101 (a)]

And its enacting regulations state:

“Human environment shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment.” [40 CFR 1508.14]

To me, this is beginning to sound a lot like a relational landscape (Dalglish 2012). The interactions and relationships between the different elements (past and present, natural and cultural) are critical to the holistic coherence of the landscape. And arguing for holistic coherence is exactly what archaeologists must do to defend national monument designations in the U.S. West.

Looking south along Comb Ridge in Bears Ears National Monument. All archaeological actions related to preservation on this landscape involve both politics and theory.

Looking south along Comb Ridge in Bears Ears National Monument. All archaeological actions related to preservation on this landscape involve both politics and theory.

Praxis extends to the daily routine of fieldwork, as well. Forgive me as I delve into the jargon of cultural resource management for a paragraph. Eligibility statements and boundary justifications are a standard part of most state archaeological site forms, and they are frequently filled out using “boilerplate” sentences. “The site may contain additional intact subsurface deposits and is thus potentially eligible for inclusion on the National Register of Historic Places under Criterion d.” Well, that’s great, but it does precious little to explain why this site really deserves to be protected, avoided, or mitigated. Radical uses of National Register Criteria a, b, and c (“the site expresses big patterns, is related to important people, or has pretty architecture”) may also be appropriate, especially when defining a landscape with holistic coherence. Unless we start explaining the particular relationships a site shares with the broader cultural and natural landscape, we are doing little to support the creation of larger-scale designations like national register districts, cultural landscapes, or national monuments.

Finally, a relational approach to landscape will help elucidate more meaningful connections between natural and cultural environments. In addition, archaeologists should be cultivating deeper partnerships with environmental and conservation advocates as these groups have over a century of experience politicking for preservation. This is not without risks, as past Society of American Archaeology President Jeff Altschul pointed out in his 2015 SAA legislative agenda. He worried that extending the “landscape” concept to cover both natural and cultural landscapes would result in “decisions favoring the former over the latter.” Indeed, in framing the 2015 SAA legislative agenda, Altschul explicitly divorced theories of landscape from the politics of landscape management:

“Although some would like to see a landscape approach cover the comprehensive management of natural and cultural resources, we fear that in practice this would result in decisions favoring the former over the latter. Hence, SAA will push agencies to differentiate management of landscapes of natural resources (natural landscapes) from those of cultural resources (cultural landscapes). It is important to bear in mind, that as used here, the term cultural landscape has no resemblance to how many archaeologists use the term in theoretical or methodological debates” (Altschul 2015).

Altschul and the SAA are pursuing exactly the opposite of what I am arguing for. It is erroneous to act as though the designation of landscape-level national monuments using the Antiquities Act exists outside the realm of the theoretical, and that theories of landscape cannot exert influence on the political. Theory and politics are present in all of our actions. The sooner we come to grips with that fact, the sooner archaeologists will be in a position to provide meaningful professional commentary on critical pieces of legislation like the Antiquities Act. I believe that this will also contribute to superior public outreach on issues of landscape preservation; ideally, this will help preserve and protect important places like Bears Ears National Monument.

 

Kellam Throgmorton

Kellam Throgmorton

 

 

Kellam Throgmorton is a PhD student in Anthropology at SUNY Binghamton, New York. His research interests include the archaeology of the U.S. Southwest, cultural resource management, and public lands issues. He has lived and worked in the Four Corners region for over a decade.

 

 

 

Altschul, Jeff

2015  The SAA 2015 Legislative Agenda. http://www.saa.org/Portals/0/SAA/GovernmentAffairs/The%20SAA%202015%20Legislative%20Agenda.pdf. Accessed online May 21, 2017.

Dalglish, Chris

2012  Archaeology and landscape ethics. World Archaeology Vol. 44(3): 327-341.

1 Comment

  • Brenda Drye says:

    they should leave Bear Ears alone, it’s the Earth the mts. the water it’s the amimals area , why disturbe it over $$$$$, ppl never will learn til something happens to them, this so called President of America does not run this place the earth does, so leave our story in place, Tribes voices should be heard, they are the ones w/the stories, the Creator is the one who made these areas so pretty why destroy the scenary ???

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