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Legislative History

(photo) Casa Grande national Monument in Arizona
Casa Grande National Monument in Arizona was the first archeological site protected under the American Antiquities Act of 1906.

Current Federal regulations of the Archaeological Resources Protection Act of 1979 (ARPA) require that the appropriate Federal land manager issues an archeological permit before a survey, excavation, or collection of archeological resources occurs on public land.

The permitting requirement is the result of the enactment of the Antiquities Act of 1906. Its passage followed years of debate, including two failed attempts, to improve the protection of important archeological and ancient architectural remains. Although only four paragraphs long, this Act has had a major impact on protecting archeological sites, some of which have since been incorporated into the National Park system, preserving archeological collections from the sites, requiring public interpretation of archeological resources, developing the profession of archeology, and improving the practice of archeology.

The Antiquities Act

  • authorized the President of the United States to create National Monuments of cultural, historic, or scientific significance;
  • criminalized unauthorized plundering of such monuments, punishable by fines and/or jail sentences;
  • required that recovered objects from investigations be placed in recognized museums and interpreted for public benefit; and
  • established a permit requirement for the conduct of archeological activities on federal lands:
“…Permits for the examination of ruins, the excavation of archaeological sites, and the gathering of objects of antiquity upon the lands under their respective jurisdictions may be granted by the Secretaries of the Interior, Agriculture, and War to institutions which they may deem properly qualified to conduct such examination, excavation, or gathering, subject to such rules and regulations as they may prescribe: Provided, That the examinations, excavations, and gatherings are undertaken for the benefit of reputable museums, universities, colleges, or other recognized scientific or educational institutions, with a view to increasing the knowledge of such objects, and that the gatherings shall be made for permanent preservation in public museums.” (Section 3, Antiquities Act)

Early permitting procedures affected federal lands administered primarily by the Departments of Interior, Agriculture, and War. Some of the national monuments were managed by the Department of Agriculture at that time. The War Department was responsible for a myriad of forts and military bases, and, prior to the creation of the National Park Service in 1916, for protecting national parks.

As adopted, the regulations of the Antiquities Act (43 CFR 3) provided that permits could be granted at the discretion of the Secretary who had jurisdiction over the lands, but only after a favorable recommendation was obtained from the Smithsonian Institution. Furthermore, applicants for a permit had to designate an appropriate museum that would agree to serve as the repository for any recovered artifacts. Applicants were also required to submit a final report upon completion of the permitted project.

(photo) Jesse Nusbaum
Jesse Nusbaum, shown here with Navajo Indians at Mesa Verde, was superintendent at Mesa Verde National Park when he was appointed as the first Departmental Consulting Archeologist in 1927.

A newly created position designated to provide professional archeological review in the Department of the Interior altered the permitting process. Beginning in 1927, all archeological matters affecting a bureau of the Interior were referred to the Departmental Consulting Archeologist (DCA), an archeologist hired by the National Park Service (McManamon and Browning 1999). In 1958, the DCA was given direct authority to issue permits on behalf of the Secretary of the Interior and, in 1968, the DCA also began managing permitting procedures for lands under the jurisdiction of the Department of Defense.

In the ensuing years, the enforcement provisions of the Antiquities Act proved inadequate to protect archeological and other historic sites from the ever-increasing destructive actions by vandals. The $500 fine, a deterrent in 1906, was insufficient and ineffective as prices for antiquities rose through the twentieth century. In 1974, the 9th Circuit Court of appeals overturned the previous conviction of Ben Diaz for stealing a number of recently crafted religious objects from a cave in the San Carlos Indian Reservation. The Court stated that the phrase ‘object of antiquity, ruins, and monuments’ contained in the Antiquities Act were unconstitutionally vague and could not be applied to the items in this case which were made in 1969 (US v. Diaz, 499 F.2d 113, 9th Circuit, 1974). The Antiquities Act was further weakened for prosecution in the 9th Circuit and the decision caused government prosecutors in other circuits to be cautious about using the Antiquities Act to go after looters.

To fix the situation, Congress passed the Archaeological Resources Protection Act of 1979 (ARPA). In that year, Congressman Morris Udall noted:
(photo) damaged archeological site
Damage to an archeological site caused by looters at Swift Creek Village, Ocmulgee National Monument.

“If we move now, we can pass this tough, new law and save this important part of our past. To do otherwise would amount to surrender to a pack of vandals of history—and we shall all be the losers.” (Collins and Michel 1985)

In a later discussion about the development of ARPA, Janet Friedman observed that:
“The birth and growth of the Archaeological Resources Protection Act was a chronicle of self-righteous special interests, jealous turf-protectors, and conflicting value systems. For every archeologist devoted to protecting irreplaceable sites, there was a metal-detector manufacturer equally devoted to protecting the rights of hobbyists. For each conservationist dedicated to saving sites for all of the people, there was an enthusiast dedicated to making arrowhead collecting available to the individual.” (Friedman 1985)

Prepared by an interagency rule-making task force composed of representatives of the Secretaries of the Interior, Agriculture, and Defense, and the Chairman of the Board of the Tennessee Valley Authority, the ARPA regulations (43 CFR 7) stiffened criminal and civil penalties and forfeitures for unauthorized archeological activity (McManamon 1991). They also strengthened the requirements for permits to include:

  • the nature and extent of proposed work, including how and why it is proposed to be conducted, proposed time of performance, locational maps, and proposed public outlet for the written results;
  • names and addresses of individuals responsible for conducting the work, institutional affiliation (if any), and evidence of education, training, and experience in accordance with certain minimum qualifications;
  • the name of the scientific or educational facility or repository where collections, data, and other documents derived from the proposed work shall be stored. "Certification" from the repository official must also be submitted showing willingness to assume curatorial responsibility of artifacts.

While the uniform regulations were being written, Antiquities Act permits remained in effect. But by the end of 1984, permits were no longer issued exclusively under the Antiquities Act. Agencies began issuing ARPA permits under the new uniform regulations. All Antiquities Act permits issued by the Department of the Interior were revoked on September 30, 1984.

An order by the Secretary of Interior and later the Department of the Interior Departmental Manual delegated permitting authority to each Federal land-managing agency in the Department.

“Serving as the agent of the Secretary of the Interior for lands and programs under their jurisdiction, the Bureau Heads of the National Park Service, the U. S. Fish and Wildlife Service, the Bureau of Land Management, the Bureau of Reclamation, and the Bureau of Indian Affairs will…issue, modify, monitor, suspend, revoke or deny permits for archeological work in accordance with AA, ARPA, NAGPRA, 43 CFR 3 and 7, and any Departmental and bureau-specific procedures, regulations, standards and policies on the survey, excavation, and preservation of prehistoric and historic resources, and for the identification, treatment, disposition, and repatriation of Native American human remains and cultural objects…”
Department of the Interior, Departmental Manual, Part 519: Protection of the Cultural Environment, Chapter 2 Preservation of American Antiquities and Treatment and Disposition of Native American Cultural Items, February 17, 1994.

Permits are now granted by individual agencies, such as the Bureau of Indian Affairs, the Fish and Wildlife Service, and the Bureau of Land Management within the Department of the Interior. The administrative records of these permits are maintained by each agency. The agencies, bureaus, and services of the Departments of Agriculture, Defense, and the Tennessee Valley Authority are also now responsible for issuing permits for archeological work on lands under their jurisdiction.

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