Of all the consequences of Trump’s presidency, it may turn out that the most monumental, in many senses, is playing out, not in the White House or the halls of Congress or even on our fiery city streets, but in a United States District Court for the District of Columbia in the courtroom of a 58-year-old judge named Tanya Sue Chutkan. It is in this courtroom that the fate of a small act, a bill that was originally written to look modest and that made its way through Congress 114 years ago, is being decided. Quietly, slowly, over the last two years, the question of the legitimacy of the Antiquities Act has crawled through the courts, and now the primary question of the case is finally being faced: Can one president undo the work of another?

“An Act for the Preservation of American Antiquities” slipped through both houses of Congress back in 1906 with the members of Congress failing to notice, or at least failing to alter, just how little Congress would have to do with the act’s main function: the designation and creation of national monuments. From its inception the Antiquities Act was solely a tool of the president, and the president at the time was not one to leave effective tools unused. For conservationists Theodore Roosevelt’s creative interpretation of the act would soon be a cause for joy; for those who opposed it, a cause for consternation, and sometimes rage.

In the years since the Antiquities Act has been challenged legally on a couple occasions but those challenges have been fended off, though sometimes with a concession or two (like adding the addendum assuring Wyomingites there would be no more monuments in their state after the designation of Jackson Hole National Monument). Only one president, Woodrow Wilson, successfully reduced land that a predecessor (Roosevelt) had saved when he essentially halved the Mt. Olympus National Monument, arguing that the timber was needed with the country on the verge of World War I. But that reduction was not challenged in court. No early attempts to undermine the act were as bold and brazen as Donald Trump’s un-declarations of the Bears Ears and Grand Staircase Escalante National Monuments.

It is these reductions that are being challenged in the District of Columbia court. There are three lawsuits over Trump’s dismantling of Bears Ears. The lead case is The Hopi Tribe et al. v. Trump, which is a consolidation of that case with two others, The Natural Resources Defense Council et al. v. Trump and Utah Dine Bikeyah v. TrumpWhat is being immediately decided is whether Donald Trump had the right to reduce land in Bears Ears and Grand Staircase, land his predecessors designated as national monument land. But the larger question looms. If the suit is lost, future presidents could also lose their single most effective presidential tool for preserving land (and water), knowing that their successors can quickly turn to undoing what they have done. Worse, long-saved lands could be threatened. With most people not paying attention, distracted by disaster, Trump has already set about dismantling the country’s environmental regulations one by one. The Great American Outdoors Act may provide cover for the moment, but if his assault on the Antiquities Act is successful the heart could be ripped out of our environmental legacy. If this ruling goes in Trump's favor, then any land saved earlier is open to plunder. Anything goes.

The legacy of Roosevelt

Thor had his hammer, Captain America his shield. The environmental superhero called Theodore Roosevelt had as his chief weapon a law whose creation many saw as the high tide of early progressivism. It was through the Antiquities Act that Roosevelt found his ultimate expression as a conservationist.

It is a popular misconception that Theodore Roosevelt “created” the Antiquities Act, since a president can’t pass a bill. But if it’s a myth that Theodore Roosevelt created the Act, he sure knew what to do with it once it was handed to him in 1906. On top of ushering in five national parks, setting aside 51 federal bird reserves and four national game preserves, and creating the United States Forest Service and 150 national forests, he would declare 18 national monuments. Yes, he had the opportunity and the timing was right with progressivism at high tide, but he took full advantage of that opportunity. He did so relentlessly, in the face of much criticism from people who didn’t just question what he was doing but could barely comprehend the why of it, and he did it while opposing the most powerful corporate interests of his time. He did it in the face of an increasingly reluctant Congress. And when his time as president ended there were 230 million more acres of public land.

Roosevelt not only fought the battles but he had to practically create the arena they were fought in. Few could even comprehend the logic, the profit, the advantage — there had to be one, right? — in simply setting things aside. If we think of politicians as having one eye on the polls, here was someone making a stand against interest groups for an issue that was not only not popular but that until recently had not existed. His job was not just saving the land but creating the vision for why we should.

One of Roosevelt’s great legacies, not as great as the land itself but not insignificant either, was giving us a story to tell ourselves about this country and its land. Not the stories he often told of American exceptionalism and manifest destiny, or the America-first story of expansion and ownership. Not even the story of stewardship and the wise use of resources. Yes, these all played into how Roosevelt saw the American land. But so did something else, something more sustaining. He believed that the land was part of us, and we were part of it. It defined us and our love for it was one of the best things about us.

What he left us was with a gift, a prescient gift from an earlier time that has been handed down to us. How we use that gift is up to us.

Constant threats

Theodore Roosevelt handed us down the story of public lands; it is up to us to revise it.

Over the previous last three years we have been relearning an old lesson: no matter how often public lands are “saved,” they are never really safe. The massive reduction of Bears Ears National Monument is particularly tragic, in part because it stood as a corrective to the darker side of a century of National Monument declarations.

Like Roosevelt himself, the public lands ideal was flawed. Consider the very first national monument that Roosevelt declared. Devil’s Tower in Wyoming, proclaimed by TR in 1906. This almost 900-foot-tall granite monolith made famous in “Close Encounters of the Third Kind had for generations been called Bears Lodge by the Plains Indians, and was considered sacred by many tribes. Which means that in “saving” it, the United States government also claimed it. This usurpation of sacred ground would be repeated often enough in the creation of parks and monuments; lands that were places of ceremony and cultural import were claimed in the name of recreation, conservation, and science.

Bears Ears was different. There five Native tribes — Navajo, Hopi, Ute, Zuni, and Ute Mountain Ute — studied the Antiquities Act and surveyed the land of their ancestors to create the proposal that led to President Obama declaring Bears Ears a national monument, the first national monument to fully grow out of the thinking, support, and political power of Native American tribes. The Bears Ears proclamation takes what was best about the park and monument ideals — setting land aside from development and protecting wildlife — and melds it with something better. Bears Ears represented a confluence of the indigenous ideals of respect and worship for the land, of the land’s holiness, with the better motives behind America’s “best idea.”

Regina Lopez-Whiteskunk, the head councilwoman of the Ute Mountain Ute tribe during the initial battle for the designation of Bears Ears, described the creation of the proposal: “While we were putting it together, we worked really hard not to spend time recounting the historical trauma of the indigenous people. We didn’t want to say, We want our land back. Ours was an effort to heal. We worked hard to stay away from terms like ‘racism.’ We tried to focus on the light, not the darkness.”

This effort was not greeted in kind. When Secretary of the Interior Ryan Zinke announced President Trump’s 85-percent reduction of Bears Ears he did so, seemingly without irony, on Theodore Roosevelt’s birthday while standing in front of the portrait of Roosevelt. He liked to call himself “a Roosevelt republican” but in one vital way he clearly was not.

“Seeing Bears Ears reduced by eighty-five percent, to two small pieces of land, leaves us with a memory what we as a people have already gone through,” Regina Lopez-Whiteskunk said after the reduction. “The only difference about this time is it’s not my people specifically, the Ute Mountain Ute or any one tribe, that feel that reduction in the pain of feeling like something was taken. It’s the entire American people.”

One method that the United States government used historically to take land from Native people was to declare it legal to do so in our courts. What we will learn soon is whether we will declare it legal to do so again. Is Regina Lopez-Whiteskunk right? Can the United States government do to all of its citizens what it historically did to the tribes? Can it take away public land that, in theory, belongs to all of us?

That will depend on the answer to another question, the one now being asked in the courtroom in the District of Columbia: Does the President of the United States have the authority under the Antiquities Act to dismantle national monuments?

Much hinges on the answer.

What lies ahead 

To revise Roosevelt’s story for our time we must take what was best about it, discard what doesn’t fit, and add the new. Any revision will have to look at Bears Ears and the role of Native people and Native lands. It will also have to look our changing climate in the eye. Scientists now tell us that our situation could not be more dire. If we believed, really believed, what our scientists were telling us, wouldn’t we drop everything else and do whatever we possibly could to resist exploiting, denuding, and destroying our wilderness? Wouldn’t we do this with an urgency we have never felt before, as if our lives depended on it, for the simple reason that they do? There is little question TR, a believer in science whose childhood ambition was to be a field naturalist not a politician, would have responded to our climate crisis with alacrity and boldness. The man who took on the trusts and railroads wouldn’t balk at confronting the fossil fuel industries. He would have led us whether we liked it or not, inventing the language that we needed to see the fight ahead.

If our public lands are a gift from the past, flawed in their history and some of their historic uses but still brimming with possibility, the question now is what we will do with this gift. Not everyone believes that conservation is still relevant. Merely preserving land, we are told, isn’t going to reverse climate change. But land, undeveloped land, might do more than we think, might hold a secret for future generations just as the land Roosevelt saved still holds a secret for us. Think of our parks and monuments and reserves as a great Noah’s Ark that will hold some species, though not all, during the coming floods and fires. If we let it, and let it alone, the land can give back more than we think, more than we might ever know.

We ignore the past and future of the Antiquities Act at our own peril. We needed it then. We need it now. We can’t lose it. A Supreme Court without an understanding of the act’s history, and what it has meant to this country, could casually overturn our heritage of conservation and open these lands to corporate plunder. Which is why, if we care at all about the future of public lands in this country, the Antiquities Act must be protected as fiercely as the land itself.

David Gessner is the author of eleven books that blend a love of nature, humor, memoir, and environmentalism, including the "Leave It As It Is: A Journey Through Theodore Roosevelt’s American Wilderness" and the New York Times-bestselling "All the Wild That Remains: Edward Abbey, Wallace Stegner and the American West." Gessner currently serves as Chair of the Creative Writing Department at the University of North Carolina Wilmington, where he is also the founder and Editor-in-Chief of the literary magazine, Ecotone.

Published on Aug 12, 2020