A Sacred Site Saved -- for now
The designation of a sacred site using a 1906 law may temporarily protect it
Avi Kwa Ame. (photo by: Alan O'Neill) NativeNewsOnline
The area known as “Spirit Mountain” and in the Mojave language, Avi Kwa Ame, was recently designated as a National Monument to protect it. This sacred site is considered to be the center of creation by several tribes in the region and so it is regarded as the most sacred space on Earth.
President Biden used an old statute, the Antiquities Act of 1906,1 by proclamation2 to designate the site as a National Monument on Tuesday, March 21, 2023.
In his remarks the day it was established, Pres. Biden said:
THE PRESIDENT: . . . I just know it as “Spirit Mountain” — (applause) — in Nevada.
It’s one of our most beautiful landscapes that ties together one of the largest contiguous wildlife corridors in the United States: 500,000 acres. (Applause.) It’s breathtaking. Breathtaking deserts, valleys, mountain ranges. Rich in biodiversity. Sacred lands that are central to the creation story of so many Tribes who have been here since time immemorial.
Look, you know, it’s a place of reverence. It’s a place of spirituality. And it’s a place of healing. And now it’ll be recognized for the significance it holds and be preserved forever. Forever. (Applause.)3
I would like to think it will be preserved “forever” but when the actions of Presidents under the Antiquities Act of 1906 were challenged, for both designating and de-designating the same national monuments, the case went through years of litigation under three Presidents. without judicical resolution. This was the Bears Ears National Monument, proclaimed a National Monument by Pres. Obama in 2016. In the next Administration, Pres. Trump, also acted with authority of the Antiquities Act of 1906 but to DE-establish the expanded site created by the Pres. Obama Administration, an action that had never been taken before this. Interest groups immediately challeneged the validity of the action, arguing the Antiquities Act of 1906 only authorized actions to establish National Monuments, not to DE-establish them. The complaint was eventually withdrawn from litigation,4 not because it was judicially resolved, but because the political party who made the proclamation returned to the White House. By withdrawing from the ongoing litigation that had become moot with the Trump departure they could simply reestablished their original proclamation.
The Administrative Procedure Act was passed in 19465 during a flurry of growth in the Executive Branch. The Antiquities Act of 1906 obviously preceeded the 1946 Act that regulated Executive Branch rulemaking. An attempt to amend the Antiquities Act of 1906 to include notice and comment resulted in a case by case kind of resolution in legislation. All that said, the Antiquities Act of 1906 seemed analogous to rulemaking but lacked the constitutional due process, some believed necessary.
Graphic Credits: The Washington Post (left) and the Boulder City Review (right)
Time passing could help. Since 1906 more than 100 sites have been designated as National Monuments by Presidents under the Antiquities Act of 1906,6 and fortunately, they all seem to be undisturbed by litigation challenging their expanse except for the recent designations in this decade.
Legal analysis of the President’s power
The argument from the Trump Administration is based on the criteria in the Antiquities Act of 1906 which reads that the area set aside must be “the smallest area compatible” with the preservation of the designated objects. This, they argue, authorizes the President to reduce the size of a monument when he determines that more land was reserved than necessary. If this was legislative, a court would review whether it was inconsistent with the criteria, but since it is an act of a President, it may be vulnerable to change and could be potentially replaced by the next President, because President’s acts are not technically “law”. The Executive Branch can make quasi-law through regulation, but this requires notice and comment, a due process requirement from the 5th Amendment of the Constitution. The Administrative Procedure Act7 was passed in 1946 and after an explosion in due process requirements in the second half of the 20th Century, even more due process is required under the Constitution to deprive anyone of any entitlement. But the 1906 Act was not required to follow that Act or to have the due process now required under the U.S. Constitution, so it leaves designations under the Act vulnerable to attack and judicial scrutiny.
What next?
Pres. Biden also designated Castner Range of 6,672 acres in the western part of Texas from the Franklin Mountains down to the plains of the Chihuahuan Desert on the Mexican border on the same day as Spirit Mountain. The area has 41 archeological sites within the Castner Range including ptyeroglyphs that date to 1350 BC. This region is associated with the Apache and Pueblo Nations in that region, Comanche Nation, Hopi Tribe and Kiowa Indian Tribe of Oklahoma.8
Before the ink is dry on the proclamation, you can expect a lawsuit or three challenging the President’s authority or the scope of these designations to proclaim these lands as National Monuments under this statute. Presidental proclamations even with the authority of statutory power given to them by Congress are open to challenge because they are not laws but acts of the President but more likely to be enforceable as long as the President is in office. A Congressional Act to designate the site would be the law of the land and be a solution closer to “forever”. In fact, in 2017-2018, Congress attempted to designate Bears Ears and other areas as Wilderness Areas and acknowledged its designation by the President under the Antiquities Act of 1906, but the bill did not even reach assignment to a Committee.9
Why does not Congress just pass legislation and protect the areas as National Parks?
Why we cannot depend on Congress
Congress is not that dependable.
One reason is because they are vulnerable to those who can make big donations. Mining companies have large pockets used for filling the war chests of hungry members of Congress who spend an average of four hours a day just fundraising for the next campaign.10 When they are not doing their own fundraising, they are obligated to raise money for their political party in a special call center outside their Capitol Hill offices. Mining companies are good resources to minimize time required for fundraising, so their interests start to look more important than other interests. As long as mining companies spending money to support their interests is a matter of protected "free speech" ( and the U.S. Supreme Court has said it is) 11this is all legal. Shielding where all the money flows from into the Congress member's war chest, is a matter of cleverly manipulating the rules without violating them.
I wrote about such a case, with the planned destruction of a sacred site made possible by Congress, one that is sacred to the San Carlos Apache Nation, known as Chich'il Bildagoteel, or Oak Flat, in Arizona, in June 2022.12 The corrupt international mining company, Rio Tinto13 continues to move forward with mining preparations on the site, even though they do not own it. Rio Tinto's largest shareholder is Shining Prospect Private 5 Ltd Co., based in Singapore and is owned by the company Chinalco. That China is a part of the name is no accident — it is a holding company owned by the People's Republic of China.14 They were given a sweetheart deal by Sen. McCain as one of his last acts of contempt toward Native Americans (just before he died ) using legislation he sponsored to sell Oak Flat to Rio Tinto for complete annihilation with their mining operation no matter what the required legal steps in NEPA or ESA found in the Environmental Assessment or Environmental Impact Statement.15
The San Carlos Apache sacred site case involving Oak Flat was heard by a panel of the 9th Circuit and then reheard by a larger panel of the 9th Circuit, stalling a petition to the U.S. Supreme Court — but it will all be worthwhile if the panel makes the right decision to protect the site. We are waiting for that decision. Congress could legislatively reverse this obvious sweetheart deal sponsored by McCain, and Cong. Grijalva has worked hard to try to do that, and has introduced legislation in March 2023 that will protect Oak Flat from this ill-advised favoritism and Native genocidal continuity set in motion by Sen. McCain. That one Senator can use his longstanding career to create so much damage is an argument for term limits.
Rio Tinto Lobbying expeditures (they are one subsidiary of many mining companies.) Source: FEC Reports on OpenSecrets.com
So far, Congress is still sitting on one metaphorical hand, while the other hand is palm up toward mining companies.16
The Antiquities Act of 1906 is codified at 54 U.S. Code § 320301 - National monuments at https://www.law.cornell.edu/uscode/text/54/320301
https://www.whitehouse.gov/briefing-room/statements-releases/2023/03/21/fact-sheet-president-biden-designates-avi-kwa-ame-national-monument/#:~:text=As%20part%20of%20the%20Biden,Avi%20Kwa%20Ame%20National%20Monument.
https://www.whitehouse.gov/briefing-room/speeches-remarks/2023/03/21/remarks-by-president-biden-at-the-white-house-conservation-in-action-summit/
When the President from the opposing political party takes office, they become the de facto party to all litigation brought by the Executive Branch; however the incoming party often does not want to continue litigating for the same issues that were initiated by the previous and outgoing political party, so the litigation is simply withdrawn by the federal government party.
5 U.S.C. §§ 551–559. et. al. explanation at https://sourcebook.acus.gov/wiki/Administrative_Procedure_Act/view .
https://www.gao.gov/assets/rced-99-244r.pdf
https://www.law.cornell.edu/wex/administrative_procedure_act
https://www.theartnewspaper.com/2023/03/22/president-biden-national-monuments-american-southwest
https://www.congress.gov/bill/115th-congress/senate-bill/2354
https://gai.georgetown.edu/an-inside-look-at-congressional-fundraising/
Citizens United v. Federal Election Commission, 558 U.S. 310 (2010 at https://en.wikipedia.org/wiki/Citizens_United_v._FEC
Corporate headquarters co-established in the UK an Australia. See https://en.wikipedia.org/wiki/Rio_Tinto_(corporation) .
https://democrats-naturalresources.house.gov/imo/media/doc/GRIJAL_024_xml.pdf
Sen. McCain used a very similar legal manuever to desecrate a sacred space for the San Carlos Apache Nation in Arizona, Mt. Graham, in the 1990s. The Mountain is called, Dził Nchaa Si’An, and is a sacred home to Apache deities known as gaan. The endangered Red Squirrel at Mt. Graham in Arizona, was threatened with a project to build a telescope and so the project was at risk of being prevented from being built on Mt. Graham because it would endanger the Red Squirrel species under the ESA. If it cannot be built while protecting the Red Squirrel and it’s habitat, then it legally cannot be built. Congress can “override” NEPA and ESA since they are both statutes they passed, and so Sen. McCain did so. Eventually many telescopes and the equivalent of a village was built on Mt. Graham in association with this project.
In 1997, Nosie, a San Carlos Apache Nation member, was arrested for coming to Mt. Graham to pray for his daughter’s coming-of-age as part of a traditional ceremony that has gone on since time immemorial. Despite promises of access, none of that was remembered, and Congress once again earns its untrustworthy description.
Since contributions must come from individuals, not corporations, it is easy to hide the contributions that come from special interests or on behalf of particular companies.