Legal Scholars File Brief Supporting National Monuments Case against Trump

by Sarah Krakoff

November 26, 2018

In 2017, President Trump signed a proclamation reducing by about 85 percent the size of Utah’s Bears Ears National Monument, a large landscape of pristine red rock canyons and culturally and historically significant Native American sites. He claimed that he had the authority to shrink this and any other national monument under the Antiquities Act of 1906 and had previously ordered the Department of the Interior to review additional monuments whose designations stretch back decades.

But does federal law really allow the president to "repeal and replace" our national monuments once they're established?

In a recent amicus brief that Professor Bob Anderson (University of Washington) and I filed with 11 other legal scholars, we answer that question with a resounding "no." The plain and clear text of the Antiquities Act is intentionally narrow, authorizing the president to establish national monuments to protect "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" and to "reserve parcels" of public lands to create those monuments. The law does not provide any authority or process for reversing those designations or modifying the size of national monuments once they're established.

The law's legislative history reinforces its text. Throughout the early years of the 20th century, Congress and the executive branch proposed and debated a variety of proposals to stop the looting of Native American archeological sites and the destruction of ancient artifacts and structures. Protecting antiquities remained a key part of the legislation that Congress ultimately passed, but it was broadened to include authority to protect areas of general scientific value. In passing the law, legislators made clear that they were giving the president a nimble power to protect expansive swaths of public lands. Congress did not impose specific acreage limitations or provide future presidents the option to shrink national monuments created by their predecessors. It only delegated to the president a narrow authority to act quickly to protect sites and landscapes at risk of harm.

More recent public lands laws such as the Federal Land Policy and Management Act and the National Forest Management Act support the Antiquities Act's landscape-scale scope and further undermine the Trump administration's actions and claims. These statutes expanded and added tools for management and preservation and made clear that the president's authority remained limited to protecting resources at risk. Presidential attempts to downgrade, shrink, or otherwise negatively modify national monuments are unauthorized by statute and exceed the president's constitutional authority.

Several CPR Member Scholars joined me in filing the brief in support of the case brought against President Trump by five Native American tribes (Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Ute Tribe of the Uintah and Ouray Reservation, and Zuni Tribe), Utah Diné Bikéyah, the Natural Resources Defense Council, and others. They are: Robert Glicksman of the George Washington University Law School, Christine Klein of the University of Florida College of Law, and Sandra Zellmer of the University of Montana School of Law.

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