The Other Historic Preservation Statutes: Archaeology

1
The Other Historic Preservation
StatutesArchaeology

• ARPA and NAGPRA

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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.

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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.

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Management Responsibilities Under The Antiquities
Act

• To establish the recognition of historic and
  archaeological sites.
• Criminal prosecution to protect archaeological
  sites.
• Administer research permits.

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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.

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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.

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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).

8
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.

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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.

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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.

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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).

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Examples of archaeological resources
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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.

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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.

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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.

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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 Youngs home and museum.

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Evidence mounts. . .

• Youngs 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.

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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.

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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.

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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.

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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.

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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.

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Participants in NAGPRA

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

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Management ResponsibilitiesAgencies 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.

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Management ResponsibilitiesAgencies 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.