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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.

This Technical Brief describes the legal background and case histories for archeological protection. Its purpose is to provide a convenient summary of archeological protection and preservation as an issue in law and jurisprudence that will be of use to jurists who may need assistance in casework.

Portions of this technical brief depart from the standard for reference citations, i.e., American Antiquity style, in favor of endnotes and legal usages, standard legal citation format, which are more helpful to attorneys and judges. Also, the standardized Federal government spelling of "archeology" is used throughout, except in titles and direct references to the Archaeological Resources Protection Act where it is spelled "archaeology."

Introduction

Despite a variety of Federal, Tribal, State and even local laws passed over the last 85 years, the amount of looting and vandalism of irreplaceable archeological resources continues to increase. Archeological sites are located on both public and private lands. Many of the areas are remote and difficult to patrol, 1 although considerable numbers of archeological sites are also to be found in more densely populated areas such as New England, the Midwest, Southeast, and the West Coast.

This technical brief examines: (1) the current profile of civil and criminal actions brought since passage of the Archaeological Resources Protection Act (ARPA);2 (2) potential areas of application for ARPA; (3) other laws and regulations that afford protection to archeological resources; and (4) case patterns through an overview of LOOT information currently available.

History and Purpose

Statutes Prior to ARPA
Federal preservation law dates from the early 19th century, when its primary focus was to document information and collect items of importance in connection with national public figures and historic military events. 3 The extended efforts beginning In the mid-19th century to save George Washington's home, Mt. Vernon, and protect the archeological remains and monumental architecture of Southwest sites such as Casa Grande Ruins exemplify such early preservation measures, most of which resulted in cases involving the taking of public property for preservation or beautification purposes. 4 The first case in which the Supreme Court recognized that the Federal government had the power to condemn private 5 property in order to preserve an historic site was United States v. Gettysburg Electric Railway Co. (1896), which allowed the creation of Gettysburg Battlefield Memorial. 6 In its decision the Court refused to adopt a narrow constitutional interpretation offered by the railroad, which would have placed the condemnation of its property outside the definition of a taking for a "public purpose" necessary for government condemnation of property. The Court did not discuss whether the government could utilize regulatory schemes to facilitate historic preservation, nor did it address the question of whether the government could extend its efforts to condemn and acquire sites with no apparent historical connections--issues which would be extremely important in the future development of preservation law.

Around the turn of the century, local governments began to adopt a European approach to land use and zoning regulation for the purpose of preserving the "local character" of their towns. The City of Baltimore, for example, adopted a 70-foot maximum height regulation to maintain the character of its residential and commercial areas. A similar regulation was adopted the same year by the city the of Boston. The Baltimore regulation was challenged in Cochran v. Preston (1908) 7 and upheld by the Court of Appeals on the ground that it was designed to reduce fire hazards in addition to containing an aesthetic preservation goal. The Boston ordinance was also challenged, and ended up before the Supreme Court in 1909. 8 The Court upheld the ordinance as being reasonably related to public health and safety, primarily in the area of fire prevention. Still, the Court did not address the issue of whether government regulation could be justified under constitutional substantive due process standards for preservation reasons. It would be 1978 before that question would be answered in the affirmative.9

Antiquities Act
Federal policy to preserve historic and prehistoric sites on Federal lands was first embodied in the Antiquities Act of 1906, 10 which authorizes a permit system for investigation of archeological sites on Federal and Indian lands, and gives the President the power to establish national monuments on Federal lands for the purpose of protecting historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest. The Antiquities Act specifies protection of antiquities on all lands owned or controlled by the Federal government and gives authority for their proper care and management to the Departments having jurisdiction. This means that Indian lands, forest preserves, and military reservations are included. The statute has no felony provisions, and penalties limited to criminal misdemeanor charges with fines up to $500 and/or 90 days imprisonment, are imposed upon those "who shall appropriate, excavate, injure, or destroy any historic or prehistoric ruin or monument, or any object of antiquity situated on lands owned or controlled" by the Federal government unless they have a permit 11 issued through the Secretary of the Department having jurisdiction. 12 Previously, specific legislative authorization was required for each designation. Although the authority to regulate the excavation or collection of archeological remains from federally controlled lands now rests principally with ARPA, monuments still are created under the Antiquities Act, and that statute limits monuments to "the smallest area compatible with the proper care and management of the objects to be protected." 13

Historic Sites Act
The Historic Sites Act, 14 enacted in 1935, declared a Federal policy to preserve historic and prehistoric properties of national significance. It gives the Secretary of the Interior authority to make historic surveys, as well as other broad powers to protect historic properties and establishes the National Historic Landmarks Program. This legislation sets standards for identification and preservation of National Historic Landmarks. It does not contain any sections that address enforcement. 15

National Historic Preservation Act (NHPA)
NHPA was originally passed by Congress in 196616 and established a Federal policy of cooperation with other nations, Tribes, States, and local governments to protect historic sites and values. Together with its implementing regulations, NHPA authorizes the National Register of Historic Places, 17 creates the Advisory Council on Historic Preservation, 18 provides further considerations for National Historic Landmarks, 19 and creates procedures for approved State and Local Government Programs. 20 The National Register of Historic Places criteria for evaluation of properties to be nominated are found at 36 CFR Part 60.4. Consideration is given to "districts, sites, buildings, structures and objects that possess integrity of location, design, setting, materials, workmanship, feeling, and association" and that are (a) related to events that have made a significant contribution to the broad patterns of our history; or that are (b) associated with the lives of persons significant in our past; or that (c) bear a pattern of distinctive characteristics of historic, architectural, archeological, engineering or cultural significance; or that (d) have yielded or may in the future yield important information as to our history or prehistory.

Regulatory provisions accompanying NHPA require the State Historic Preservation Officers (SHPOs) to prepare and implement State historic preservation plans.21 Protection of identified historic sites is facilitated through implementation of NHPA Section 106 review, which is a five-step process designed to ensure that historic properties arr considered during the planning and execution of Federal projects.22

The major amendments to NHPA, passed in 1980, 23 provide support for archeological resources protection because they codify those portions of Executive Order 11593 24 requiring Federal agencies to develop programs to inventory and evaluate historic resources. The amendments also authorize Federal agencies to charge reasonable costs for such activities to Federal permittees and licensees. 25

Archeological and Historic Preservation Act 26 (AHPA)
Though it has been called the Archeological Recovery Act and the Reservoir Salvage Act, AHPA has no official short title. Most importantly, it requires Federal agencies to preserve historic and archeological data, including the objects and materials collected from archeological sites, which may otherwise be lost or destroyed as a result of "any Federal construction project or federally licensed activity or program." Up to 1 percent of project funds may be appropriated to conduct archeological data recovery activities, in addition to any costs for archeological work required for project planning. 27

Archaeological Resources Protection Act (ARPA)
Of the laws currently in place for protecting archeological resources, one of the most far-reaching is the Archaeological Resources Protection Act of 1979 (ARPA)28 with its subsequent amendments of 1988. 29 This is particularly true since adoption in 1984 of uniform regulations by which many aspects of ARPA are enforced. 30 Under Section 6 of ARPA the first significant criminal penalties can now be imposed for the vandalism, alteration, or destruction of historic and prehistoric sites 31 on Federal and Indian lands, as well as for the sale, purchase, exchange, transport, or receipt of any archeological resource if that resource was excavated or removed from public lands or Indian lands or in violation of state or local law. The penalties include up to $250,000 in fines and up to five years imprisonment. 32 In addition, ARPA provides civil penalties for the acts prohibited under Section 6, as well as for violations of ARPA permits. 33 The penalties include the forfeiture of property used for illegal site disturbances or destruction and forfeiture of illegally obtained artifacts. 34

The critical provisions of ARPA make it illegal to excavate or remove any archeological resources from Federal or Indian lands without a permit from the Federal land manager. Permits for archeological work on Indian lands may be granted only after obtaining consent of the Indian allottee or Indian Tribe owning or having jurisdiction over such lands. One of the conditions for issuance of a permit is that the applicant demonstrate that proposed activities will provide increased knowledge of archeological resources. A primary purpose of the statute is to increase the exchange of information and general communication among governmental entities, professional archeologists, and the public. Finally, ARPA requires uniform regulations to be promulgated by the Secretaries of the Interior, Defense, and Agriculture and the Chairman of the Tennessee Valley Authority. Federal land managers, as defined in ARPA, may promulgate additional regulations, consistent with the uniform regulations, which may be needed by their agencies.

Currently there are a few State statutes that address protecting archeologically significant sites located on private lands but there are no comparable Federal statutes. Unlike the European nations, the United States has not embraced the concept of a national cultural heritage law that protects significant resources within the boundaries of private ownership of land.

Although the most recent amendments to ARPA will improve the effectiveness of the anti-looting portions of the statute via interagency cooperation, there are certain areas in which the only effective remedy will be increased involvement of the law enforcement community. This community includes local, State, and Federal law enforcement personnel, attorneys, and the judiciary involved at each level of prosecution. At present many of these individuals do not know that the statute exists, or if they are aware of it, they still prefer to utilize more familiar State and local laws that prohibit theft, vandalism, or trespass. Although such laws do take care of some of the problems, they do not deal effectively with the destruction of cultural resources and information because the focus is in punishing specific common law offenses.35 Because these laws are also more familiar to the members of juries, as well as the judges, who may be deciding the cases, prosecutors often see a strategic advantage in presenting a cause of action that will not be misunderstood.

When Congress passed ARPA in 1979, legislators and preservationists hoped that it would result in a reduction of vandalism and looting of the nation's prehistoric and historic archeological sites. They looked to ARPA as a vehicle for education that would lead to a heightened public awareness of the problem as well as provide a major deterrent to looters and illegal commercial traffickers through its substantial penalty provisions. 36 This continues to be the case, as ARPA was strengthened by the 1988 amendments with requirements that Federal agencies develop plans for surveying lands not scheduled for projects, develop and implement systems for reporting and recording archeological violations, and develop public awareness programs. The amendments also provide for a lower felony threshold, reduced from $5,000 to $500 damage caused, and prohibit attempts to damage archeological resources. 37 Today, the successful enforcement of ARPA depends upon a variety of interrelated factors:

  1. Education of the professional communities, including archeologists, agency managers, law enforcement personnel, and jurists, particularly in the areas of preservation law, policy and technology;
  2. Education of the citizenry at large to foster awareness and appreciation of both historic and prehistoric cultural resources and the importance of protecting and preserving those resources;
  3. A team approach to collection of data and evidence in investigative casework;
  4. Communication and cooperation among the agencies that, under the statute, are responsible for the joint administration of the law, including,
    • Effective monitoring of the condition of archeological resources by land managing agencies, and
    • Effective cooperation between law enforcement and cultural resource personnel in managing these resources; and
  5. Research and development of more effective protection measures.38

Related Federal Legislation

In addition to the statutes that specifically address cultural resources preservation, other legislation also recognizes the importance of historic and prehistoric site protection. While the preservation statutes themselves may be limited by weaknesses in certain areas, their enforcement potential may be increased by their function in tandem with other laws:

Department of Transportation Act (DOTA) 39
No program undertaken by the Federal Highway Administration, Federal Aviation Administration, Urban Mass Transit Administration, or the U.S. Coast Guard will be approved when it requires use of land from a historic site, whether of national, State, or local significance, unless there is no feasible and prudent alternative but to use such lands, and unless the program includes all possible planning to minimize harm to the historic properties (emphasis added). 40

National Environmental Policy Act (NEPA) 41
Because NEPA's Environmental Impact Statement (EIS) requirement applies to all proposed major Federal actions that may significantly affect the quality of the human environment, it.,has become an effective procedural statute that is applicable to cultural resources preservation. 42 The EIS must be prepared prior to such proposed actions. Both NEPA and NHPA apply only to Federal actions, and although these statutes neither specifically prohibit activities that may ultimately result in damage to or destruction of archeological resources nor require actions to preserve cultural resources, the courts have usually considered NEPA applicable to such resources, in that the natural environment includes our "historic and cultural heritage". 43

American Indian Religious Freedom Act (AIRFA) 44
This Act seeks to protect and preserve traditional Native American, Eskimo, Aleut, and Hawaiian spiritual beliefs and practices by providing access to ancient sites for these Native peoples. AIRFA also provides for the use and possession of sacred objects by members of the Native American Tribes. Archeological site protection is a Federal activity related to AIRFA, since it directs the various agencies to consult with Native traditional religious leaders in a cooperative effort to develop and implement policies and procedures that will aid in determining how to protect and preserve Native American cultural and spiritual traditions. Section 10(a) of ARPA requires that uniform regulations be promulgated for ARPA after consideration of AIRFA.

Federal Collections Act of 1966 45
This Act requires that Federal agencies attempt collection of all claims for money or property damage arising out of activities on Federal lands, including claims resulting from unauthorized or illegal activities that damage or destroy cultural resources. Historic and prehistoric sites have clearly been defined as "resources" under the Antiquities Act, NHPA, and ARPA, and collection requires careful analysis by a professional archeologist whose training includes methods of site appraisal, such as provided in the uniform regulations for ARPA, that will translate site damage into monetary terms and satisfy the evidentiary requirements of a court case. 46

18 U.S.C. 641, Embezzlement and Theft 47
This statute provides that, "Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys, or disposes of any record...or thing of value of the United States or of any department or agency thereof... or whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined, or converted shall be fined not more than $10,000 or imprisoned not more than 10 years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both." "The word, 'value' means face, par, or market value, or cost price, either wholesale or retail, whichever is greater." This statute, together with the malicious mischief statute, may be used in coordination with ARPA to establish liability of looters as well as their connected commercial agents or dealers in artifacts. 48

18 U.S.C. 1361, Destruction of Government Property (Malicious Mischief)
This statute provides: "Whoever willfully injures or commits any depredation against any property of the United States, or of any department or agency thereof...shall be punished as follows:

If the damage to such property exceeds the sum of $100, by a fine of not more than $10,000 or imprisonment for not more than ten years, or both; if the damage to such property does not exceed the sum of $100, by a fine of not more than $1,000, or by imprisonment for not more than one year, or both.

The advantages to including this statute when litigating against looters and vandals is clear, since its penalties may be applied to partial site destruction or to destruction and/or removal of smaller non-replaceable resources such as portions of pots, chipping tools, and fabric remnants.49

18 U.S.C 1163, Embezzlement and Theft from Indian Tribal Organizations
This statute is similar to 18 U.S.C. 641, described above, but it applies specifically to embezzlement and theft from Indian Tribes. Alternative fines are also applicable to both the malicious mischief and embezzlement/theft statutes. Pursuant to 18 U.S.C. 3571, maximum fines may be imposed for convictions under 18 U.S.C. 1163, 18 U.S.C. 641, and 18 U.S.C. 1361, as follows:

Misdemeanor conviction, value less than $100.00, up to $100,000 maximum fine. Felony conviction, value exceeds $100,000, maximum fine up to $250,000.

If the defendant is an organization, the maximum fine rates are doubled, although no term of imprisonment can be imposed.

18 U.S.C. 371, Conspiracy to Commit Offense or Defraud the States
For a discussion of the application of the Fifth Amendment double jeopardy clause to subsequent criminal prosecutions and the possibility of bar as to "same offense" charges, see Grady v. Corbin, 110 S. Ct. 2084 (decided May 29, 1990).

Companion State Statutes

Research into existing State statutes that are applicable to archeological resources protection was begun by examining a collection of State laws contained in National Park Service (NPS) files. The list obtained was expanded through a search of the LEXIS and the WESTLAW computer services. Additional information was provided through correspondence with participants in the NPS, Forest Service, and Federal Law Enforcement Training Center who provided LOOT Clearinghouse information (see discussion of LOOT Clearinghouse below). The chart of State statutes (Appendix 1) represents the several categories that were needed to identify statutes applicable to cultural resources protection. Use of these categories was particularly important in the computer searches because there are no generalized cultural resources headings under which these laws can be principally found. Finding these laws depends upon how an individual State categorizes the nature of the protection or the type of offense committed. The laws covering archeological resources protection rarely are codified under a single heading. Additionally, it is likely that new laws have been passed in State legislatures and existing laws may have been re-titled or consolidated since June 1990, the date of this research.

State statutes in force as of July 1990, fall into five categories that reinforce or complement ARPA (See Appendix 1):

  1. Restrictions on sales of antiquities or forgeries (14 States);
  2. Laws to discourage activities that damage archeological resources on private land (11 States);
  3. Mirror ARPA statutes, including penalty provisions (37 States);
  4. Penalties for disturbances of marked and unmarked burial sites (11 States). Eight states have reinterment statutes, but onlv two of these also have an anti-disturbance statute; and
  5. Statutes providing for acquisition of real property or artifacts.50

An additional seven states had pending legislation for 1989-90 sessions in one or more of the five categories, with the emphasis of proposed legislation upon marked and unmarked burial sites. In addition, several States have statutes providing protection to specific areas, such as underwater salvage sites (10 States), caves (4 States), earthworks (2 States), forts (2 States), ghost-towns (Colorado only), petroglyphs or rock art (3 States), and State preserves (Iowa only).

Many States have statutes that establish State archeologists, State historical agencies, involvement in cultural resources issues by Native Americans through established advisory councils, and State registers of historic places. There are also statutes that provide for State cultural resources surveys, regulatory issuance of permits for field investigations, obligations to report discoveries that may have historic or prehistoric archeological significance, and protection of the confidentiality of site locations.

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