The Other Historic Preservation Statutes: Archaeology ARPA and NAGPRA

Further Protection of Archaeological Sites: Is It Necessary? NHPA compels Feds to be “good stewards” of sites on federal land, but it does not give statutory authority to prosecute individuals who disturb archaeological and paleontological sites or remove artifacts from public land. The 1906 Antiquities Act (16 U.S.C. 431-433) was the first national law designed to help protect archaeological sites, but was found to have no “teeth” in the prosecution of those who disturb sites.

The Antiquities Act of 1906 Scope: Protection of sites with historic and scientific interest. Covered Federal lands and trust territory (Indian lands). Created a permit system for investigation of archaeological sites.

Management Responsibilities Under The Antiquities Act To establish the recognition of historic and archaeological sites. Criminal prosecution to protect archaeological sites. Administer research permits.

Problems With the Antiquities Act Original sanctions for violators was a fine of no more than $500 and/or up to 90 days in jail (the average yearly income in 1906 was $520); it was viewed as a misdemeanor. With time, the fine amount was seen as trivial, and few cases were brought to trial. Between 1906 and 1979, there were only 18 convictions under The Act, four of which were about petrified wood! Total fines during this time were $4,000.

United States vs. Diaz: The First Challenge to the Antiquities Act In 1972, Ben Diaz removed numerous masks and religious items from a cave on the San Carlos Indian Reservation in Arizona Diaz tried to sell the items, and was apprehended by the FBI. Even though the artifacts were less than 5 years old, they were considered “antiquities” because they were used in contemporary rituals of ancient origin.

The Plot Sickens. . . Diaz was convicted and appealed to the U.S. District Court where the conviction was upheld. Diaz appealed to the Ninth Circuit Court of Appeals, complaining that the definition of antiquity should not be so vague. The Court agreed and declared the Antiquities Act to be unconstitutional (it could no longer be used in Alaska, Arizona, Hawaii, Idaho, Montana, Oregon, and Washington).

1974 to 1979: A Bleak Time For Archaeological Site Protection United States vs. Jones et al.: three men were caught looting burials on the Tonto National Forest in Arizona. Only general crimes statutes could be used to bring charges against the men, but the defense argued that the general criminal code could not be used since there was a specific law to address the protection of archaeological sites! The case was dismissed.

Ninth Circuit Court to the rescue. . . The United States prosecutors appealed the case to the Ninth Circuit Court. The Court found that both general and specific charges could be brought against anyone committing crimes on Federal lands. Charges were reinstated. During this time, the archaeological community (with the Society for American Archaeology) mobilized to come up with a better statute designed to protect sites.

Archaeological Resources Protection Act of 1979 (16 USC 470aa-470mm) Prohibited acts: “. . .excavate, remove, damage, alter or deface or attempt to. . .” “. . .sell, purchase, exchange, transport, receive, or offer to. . .” “. . .remove archeological resources in violation of State or local law and move them in interstate or foreign commerce.” “. . .hire, counsel, or procure another to violate the law.”

Elements of ARPA Definition of an archaeological resource as an item of past human existence or archaeological interest over 100 years of age. Such sites or objects on public or Indian lands. Only is a permit is issued by the managing agency can anyone disturb or remove artifacts (i.e., a professional archaeologist).

Examples of archaeological resources

ARPA Penalties Penalties are based on archaeological or commercial value PLUS the cost of restoration and repair. Since the 1988 amendments any ARPA violation is a felony if damage is more than $500. First offense: $250,000 and/or 2 years in jail. Second offense: $250,000 and/or 5 years in jail. Forfeiture of materials, equipment, and vehicles.

ARPA Examples from Idaho: Weston Canyon Rockshelter Local government received funds from NRCS to install pipeline along road on Forest Service Land. Important archaeological site located adjacent to pipeline path (Weston Canyon Rockshelter). Despite “sensitivity” training, bulldozer operator plowed through the archaeological deposit; technically, this was an ARPA violation.

ARPA in Idaho: The Jerry Lee Young Case Jerry Lee Young had a reputation of wanton looting of sites in Idaho and northern Nevada stretching back 30 years. Young owned the “Idaho Heritage Museum” where thousands of artifacts collected from public lands were displayed. Young was identified by two young men in 1997 looting a rockshelter on public land near Milner Dam on the Snake River.

The investigations begin. . . Since it appeared looting of the site was on going, hidden cameras and tape recorders were secreted around the rockshelter. Crime-scene techniques were used to collect evidence from the looted interior of the rockshelter, including casts of footprints and DNA samples from cigarette butts. Enough evidence was gathered to convince a federal judge to issue a search-and-seizure warrant for Young’s home and museum.

Evidence mounts. . . Young’s home was filled with artifacts, many with soil still attached. Looting equipment (screens, shovels, buckets of midden, etc.) was found in the backyard. Photographs of Young and friends actively digging at the rockshelter, complete with date stamps! Museum contained artifacts clearly from public lands.

Charges filed, then the plea bargain When the investigation was completed, there was evidence to support that Young returned to Milner Dam Rockshelter 22 times! Ultimately, 10 separate ARPA felony charges were filed against Young. Young pleaded not guilty, but after discovery and deals with federal prosecutors, pleaded to a single felony ARPA charge. Young was required to forfeit his truck and equipment, pay nearly $40,000 in restitution to the Government, spend 6 months in jail, and 7 months home detention.

Native American Grave Protection and Repatriation Act of 1990 Purpose: The Act addresses the rights of lineal descendants and members of Indian Tribes and Native Hawaiian organizations to certain Native American human remains and cultural items Definitions: Human remains: the physical remains of a human body, including but not limited to bones, teeth, hair, ashes, or mummified or otherwise preserved soft tissue of a person of Native American ancestory.

NAGPRA Definitions, continued. . . Associated funerary object: items that, as part of the death rite or ceremony of a culture, are reasonably believed to have been placed intentionally at the time of death or later with or near individual human remains that are in the possession or control of a museum or Federal agency. Unassociated funerary object: same as above, but without the human remains.

NAGPRA Definitions, continued. . . Sacred objects: items that are specific ceremonial objects needed by traditional Native American religious leaders for the current practice of traditional Native American religion by their present-day adherents. Objects of cultural patrimony: items having ongoing historical, traditional, or cultural importance central to the Indian tribe itself, rather than property owned by an individual Tribal member.

Cultural Affiliation A relationship of shared group identity which can reasonably be traced historically or prehistorically between members of a present-day Indian Tribe or Native Hawaiian organization and an identifiable earlier group.

Participants in NAGPRA Federal Agencies (except Smithsonian). Museum that has NAGPRA items and receives federal funds. Indian Tribes. Native Hawaiian organizations.

Management Responsibilities: Agencies and Museums Consult with Indian Tribes and Native Hawaiian organizations about cultural affiliation and repatriation. Provide summaries of collections that may contain NAGPRA items by November 16, 1993. Provide item-by-item inventory of such items by November 16, 1995.

Management Responsibilities: Agencies and Archaeologists Inadvertent discovery of NAGPRA items: stop work, protect objects, notify culturally-affiliated tribes, and agree about disposition of the remains (can resume in 30 days if there is no tribal response). Administer intentional, legal excavation (under ARPA); tribal review of excavation plans. Develop agreement with Native groups about cultural affiliation, artifacts, kind of analyses allowed, curation, and inadvertent discovery.