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Technical Brief 11 Legal Background of Archeological Resources Protection


Published by the DOI Departmental Consulting Archeologist/NPS Archeology Program, National Park Service, Washington, DC, September 1991.

Survey of SHPO Resources Protection Activities

During preliminary research for this Technical Brief it was determined that, while it was important to understand the regional context of archeological resources protection at other levels of government, little information actually was available about such programs at State Historic Preservation Offices (SHPO). Therefore, a survey was conducted between January and August 1990, to query 59 State Historic Preservation Officers and 14 of their deputies about a wide range of protection activities. There were 41 responses (56%).

The results of the survey show that SHPOs are active in the following areas (numbers of affirmative SHPO responses shown in parentheses).

Casework

Some SHPOs have provided assistance in archeological protection under the Antiquities Act (6) and ARPA (13). Many SHPOs listed activities within the Section 106 procedures of NHPA as their primary source of involvement under Federal law.

Some SHPOs reported assisting with archeological protection pursuant to a variety of State statutes, including theft (4), trespass (5), vandalism (11), site disturbances, including burials and confidentiality of site locations (17), permit violations (10), sales of forged artifacts (4) and archeological surveys or salvage excavations on State lands (1).

Responses from 14 SHPOs documented direct assistance in 17 archeological protection cases prosecuted between 1985 and 1990, with some of those cases still pending resolution. Seven of the cases were prosecuted under ARPA, either alone or in conjunction with other statutes.

SHPO assistance in case preparation has included gathering information or evidence on-site (13), consultation with attorneys (8) and law enforcement personnel (10), giving testimony at trials (9) or hearings (3), and participation in courtmartial proceedings (1).

Legislative and Administrative Assistance

SHPOs reported infrequent participation in legislative activities. However, such activity by preservationists is extremely important because cases are often won or lost on the strength of a statute. One of the most powerful ways to increase protection of archeological resources is through implementation of effective State statutes. The courts are the interpreters of the law, and when there exists a preservation statute that the court may appropriately apply, case preparation may be approached from a much stronger position. For example, SHPO expertise and input were instrumental in the drafting and subsequent enactment of State legislation in Arizona to protect and preserve ancient burial sites on private land.51

SHPO legislative efforts necessarily include the building of a constituency that will be available for future legislative activities in related areas. The SHPO survey documented the following legislative and administrative activities: drafting bills (1); legislative task force membership (3); and Federal grant project reviews (1).

Training

SHPOs also recognized their participation in training programs for archeological resources protection. SHPOs were both students (19) and teachers (13) in various programs including the 40-hour skills development course sponsored by the Federal Law Enforcement Training Center, the 12-hour overview of archeological protection programs sponsored by NPS, public awareness programs, and inhouse workshops. Eleven SHPOs indicated that there had been no participation in preservation law training.

Results of the survey confirm that SHPOs are a potentially valuable resource in expanding efforts to enforce preservation laws and educate the general public about archeological resources protection. While most enforcement activities continue to be conducted by Federal agencies, significant public awareness efforts are conducted by States, especially during "archeology weeks." When these are coupled with improved cooperation among law enforcement jurisdictions, there can be an important impact in reducing site vandalism.

Return to: Technical Briefs | Section 1 | Section 2 | Section 3 | Endnotes



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