Application of ARPA
Federal and Indian lands are the clear province of ARPA, and the statute requires four agencies, the Departments of the Interior, Agriculture, and Defense, and the Tennessee Valley Authority, to provide uniform regulations for its implementation. Federal agencies also may adopt supplementary regulations, as long as these are consistent with the uniform regulations. In addition, the Secretary of the Interior is charged with reporting to Congress on the Federal archeology program and activities conducted pursuant to ARPA. This function is completed by Interior's Departmental Consulting Archeologist (DCA), who receives staff support from the NPS Archeological Assistance Division. Annually, Federal agencies cooperate to provide information about their programs to the DCA, and this includes information related to enforcement of archeological protection laws.52
Collection of information about enforcement reflects only activity at known archeological sites. The majority of sites that probably exist on federally controlled lands have yet to be inventoried or evaluated. Congress recognized the need to conduct broader archeological surveys to complement project-specific archeological work by adding Section 14 to ARPA in 1988. The latest available information indicates that, overall, Federal agencies estimate that less than 8 percent of the lands they manage have been investigated for possible archeological sites. The magnitude of site looting and vandalism is more easily understood by looking at one area, the "Four Corners" of the Southwest,53 wherein significant percentages of the known archeological sites have been damaged or destroyed by either casual or unintentional disturbance or by systematic commercial looting.54
Between 1985 and 1987, a total of 1,720 incidents of archeological looting were reported by Federal agencies. These incidents resulted in a total of 134 citations, 49 arrests, 57 criminal misdemeanor convictions under ARPA, 16 felony convictions under ARPA, and 17 civil penalties under ARPA.55 The largest number of cases actually prosecuted were brought under other authorities, such as other Federal statutes, State statutes, or agency-specific regulations.56
Archeological site monitoring throughout the vast Federal lands areas is difficult, at best.57 In addition to the inadequate number of personnel available for site patrol, many known sites are virtually undetectable to the untrained eye, and damage may be undiscovered or unnoticed for long periods of time. Consequently, timely discoveries of looting have been one problem for enforcement.58 The 1988 Federal agency information indicates that only 15 percent of the reported incidents were found in time to issue Citations or perform an arrest. Also, convictions reported for a given year may be for prosecutions begun two to five years earlier.59 (See Figure 2)
Protection strategies on federally controlled lands have included increased patrols, site monitoring, including surveillance technology such as hidden alarm mechanisms, and remote sensing, and interagency cooperation. The result has been a significant increase in reported ARPA violations, but there has yet to be a correspondingly dramatic increase in citations, arrests, prosecutions, or convictions under the statute. It is also evident that actual looting and trafficking in artifacts far exceeds the number of reported incidents.
LOOT Clearinghouse Cases
Another source of information about archeological protection is the Listing Of Outlaw Treachery (LOOT) Clearinghouse, created by the NPS Archeological Assistance Division. It contains voluntarily submitted reports for cases of archeological looting and vandalism. Its objectives are to improve the quality of information available about archeological protection, increase the effective use of that information for future enforcement efforts, and expedite the communication of case strategies and results among the many government agencies. Case-specific information for the LOOT Clearinghouse is collected on a form that is distributed to Federal agencies along with the questionnaire requesting data on Federal archeology programs for the annual report to Congress.60 Respondents are asked to supply information on cases that have been completed, not about ongoing investigations. Others concerned with archeological protection, such as attorneys, law enforcement officials, or professional archeological consultants, also are asked to submit information on completed cases with which they are familiar.
Table I compares the programmatic data gathered as part of the annual report on the Federal archeology program with the case-specific data reported on individual LOOT forms. The discrepancy in numbers is a result of the way in which cases and incidents are grouped, how many LOOT forms document the resolution of cases, and whether or not cases brought under statutes other than ARPA are included in either the annual report data or the LOOT data.
Although the primary purpose of LOOT is to provide "a central place for those seeking information on prosecutions of looting and vandalism,"61 it also reflects how often and with what success such prosecutions are brought under ARPA, either alone or in combination with other statutes. The LOOT Clearinghouse presently contains information on approximately 100 cases; 23 of these predate the passage of ARPA, while another 24 predate the adoption of ARPA's implementing regulations.62 All but a few entries predate the 1988 amendments to ARPA, which make it easier for prosecutors to build strong cases.
A brief discussion of pre-regulations cases may be necessary to the understanding of ARPA's development, but the effectiveness of ARPA should be viewed in light of the past five years that these regulations have been in place. In addition, the 1988 amendments to ARPA provide three important changes in favor of enforcement. These include: (1) reduction of the damage amount that establishes the criminal offense from $5,000 to $500;63 (2) insertion of language into Section 6(a), which makes it a criminal offense to "...attempt to excavate, remove, damage, or otherwise alter or deface any archaeological resources on federally controlled lands,"64 and (3) development of a reporting system to document suspected violations under ARPA.65
Prosecutions under ARPA prior to regulations were limited because the statute did not designate civil penalties and also because of the more narrow definitions of "archaeological resource" provided in ARPA itself. ARPA felony criminal prosecutions now require four elements of proof:
Despite temporary limitations prior to 1984 due to the need for implementing regulations, seven prosecutions under ARPA were instituted during the first few months after it became law. The ARPA count was usually accompanied by a separate count under 18 U.S.C. 1361, Destruction of Government Property, and the cases were heard either in U.S. District Court or brought before the appropriate Federal Magistrate. Representative convictions from these cases include United States v. Palmer (D. Utah, April, 1980), for illegal excavation ($200 fine, 2-year probation, plus $300 fine assessed in lieu of confiscation of a vehicle); United States v. Brady (D. Arizona, November, 1979), for excavation and damage to a prehistoric site (6 months suspended sentence; 3-year probation); and United States v. Shumway, No. Cr-80-5 W (D. Utah, November, 1979) for illegal excavation and destruction of government property ($750 fine; 3 years suspended sentence with 3 years probation).68 In one early case, the defendants even petitioned for prosecution under ARPA, although their original offense was committed prior to ARPA's enactment. The plea was granted, and on May 19, 1980, the first sentences under ARPA's felony provisions were imposed.69
For the period between 1980 and the adoption of ARPA uniform regulations in 1984 the LOOT clearinghouse documents 19 additional ARPA prosecutions. The pattern emerging from the remainder of these pre-regulation cases shows guilty verdicts by either judge/magistrate or jury for all but one defendant. Prison sentences were usually completely suspended, though one defendant did serve 6 months imprisonment, with supervised probation of 2 to 3 years being imposed instead of jail time. Community service hours were imposed on one defendant. Fines were imposed in less than 50 percent of the cases. Some of the fines were later declared uncollectible by the justice Department, and most fines did not reflect the actual damage amounts presented by the government after damage assessments and analysis by expert archeologists.70 Lack of ARPA regulations resulted in the only complete acquittal during this period. In that case,71 defendants were found not guilty of causing $9,000 in damages to a rock shelter because it was not clearly demonstrated that a rock shelter is an archeological resource.
ARPA uniform and supplementary regulations have clarified uncertainties as to the statute's application and have enhanced the prosecutor's ability to cover a wide range of activities that have resulted in damage to or destruction of archeological resources. ARPA focuses on those activities that have been categorized as "predatory or malicious," which include collecting for personal or commercial gain and wanton property destruction with or without commercial or personal motive. Such looting and vandalism occurs: through digging, also commonly called "pot-hunting", and use of heavy machinery; carving, chipping, scratching, or other general defacement; surface collection of artifacts from archeological sites; theft of artifacts from historic or prehistoric structures; removal of all or portions of a structure; arson; climbing or walking on resources; breaking artifacts, objects, or windows; knocking structures over; throwing rocks and other debris into excavated ruins; or simply handling or touching the structure or contents of sites.72 It should be emphasized that although surface collection of arrowheads is not prohibited under ARPA, such activity does violate both the Antiquities Act (See Section 1), and the Theft of Government Property statute 18 U.S.C. 641.
The LOOT Clearinghouse contains reports on 60 cases dating from the time of adoption of ARPA regulations, but only 28 of those included ARPA counts for prosecution.73 Only 16 defendants were prosecuted solely under ARPA. Those activities successfully prosecuted included theft of Civil War relics from public lands, site disturbance--digging or sifting for artifacts--on public lands, removal of material remains or artifacts from prehistoric Indian burial sites, looting of historic shipwrecks in national reserve waters, and trafficking in stolen artifacts illegally obtained from public lands.
Successful prosecutions do not necessarily mean automatic imposition of appropriate fines or other penalties. LOOT reflects only $270 collected in civil fines,74 although the number of substantial forfeitures has increased. Items forfeited usually include all tools and equipment used in search and removal efforts, digging tools, metal detectors, diving equipment, and even vehicles such as trucks and boats. Of course, all artifacts in the possession of the defendants are usually confiscated and, upon conviction, those items are forfeited. Defendants who actually serve prison time for ARPA violations continue to be the exception because these sentences often are suspended by the court or magistrate in favor of supervised probation and fines. The amounts of criminal fines imposed continue to be far less than the statutory allowances, with the exception of one $10,000 fine75 and one $21,000 fine, which was assessed under another statute. Another notable exception was the assessment of $132,000 in civil penalties against seven individuals who looted shipwrecks within a National Park and a National Marine Sanctuary.76 Typically, however, the average fine imposed is under $500, but hours of community service also are required. Denial of access to public lands or monuments is imposed on many defendants during their probationary periods.77
If a general trend can be seen through analysis of the LOOT Clearinghouse cases thus far, it is clear that ARPA prosecutions are increasing, but it is less likely that a prosecution is brought under ARPA alone.78 Federal statutes governing theft and embezzlement of government property or destruction of government property (See Section 1) usually are included along with the ARPA counts. Attorneys may be more willing to prosecute exclusively under ARPA where the defendant has a prior ARPA conviction, whether felony or misdemeanor, since after one conviction there is no felony threshold with regard to damage to the archeological resource, and the maximum penalty is now up to five years imprisonment and/or as much as $250,000 in fines.
There still appears to be a reluctance on the part of prosecuting attorneys to include the additional civil damages that are available under ARPA. In one case, although information as to civil liability was presented in detail to the Grand Jury, the attorneys on the case elected not to pursue civil prosecution. The defendants escaped fines of several thousand dollars, paying only the criminal fines and receiving suspended sentences in favor of 5 years probation with 100 hours of community service to be performed. In another case involving an underwater site, the attorney elected not to prosecute under ARPA at all, rationalizing that the court might not consider "diving" for artifacts to be covered under the statute, which speaks to "digging." The LOOT report correctly pointed out that such a rationale would not have prevented prosecution under the National Historic Preservation Act, (See Section 1), which makes it a violation to remove artifacts from Federal property in any manner. Pre-trial agreements or plea bargaining also account for the dropping of ARPA counts in exchange for guilty pleas to lesser offenses. There are two possible explanations for this. Perhaps United States Attorneys continue to have doubts about prosecuting under ARPA because of possible negative statutory interpretations or questions about whether the defendants' activities would really satisfy requirements for an ARPA violation. Alternatively, the potential for violators to receive significant criminal penalties under ARPA may have been shown to be a useful element in effective plea bargaining.
A note of caution is appropriate here. Several factors greatly influence the quality and accuracy of current ARPA enforcement documentation. A large number of Federal agencies are required to respond to the annual NPS questionnaire,79 and the accuracy and completeness of those responses vary widely depending upon the interest and expertise of the person filling out the form. Cumulative figures are skewed because neither the Department of Transportation nor the Justice Department provides responses to the questionnaire that corroborate media reports and other independent information about their activities relative to ARPA violations80 and prosecutions. The LOOT case forms usually are completed and submitted8l by Forest Rangers, Park Rangers, and Regional or State Archeologists, who, in turn, are getting their information from agency patrol reports. United States Attorneys, newspaper or magazine articles, and, occasionally, court records.82 The case reports are limited to known archeological sites.
Interpretation of what constitutes a "case" in the LOOT forms also depends upon the informant. LOOT reports include "incidents" that resulted in the assessment of fines--an occurrence that requires some sort of formal procedure - yet the report is silent as to dates of arrest, indictment, hearing, or trial. Conversely, there are LOOT reports that clearly reflect that a hearing or trial has taken place, but there is no information as to the forum of that proceeding or as to whether the penalties assessed were civil or criminal in nature. Furthermore, even when distinction is made between criminal and civil penalties, the nature of the criminal punishments--felony or misdemeanor--are omitted. ARPA violations are often documented, but many of the LOOT reports do not indicate if the actual charges brought were under ARPA or another statute or both. When statutes are cited, there are often omissions as to which counts were dropped during plea bargaining or which counts are included in the resulting guilty verdicts. Amounts that are listed as "fines" are sometimes really the value of items forfeited, and there is confusion among the individual reporters as to what is meant by the terms "restitution," "fine," "forfeiture," and "court costs." On occasion, an agency will have so many violations that it literally stops counting and begins generalizing.83
The legal background of archeological resources protection is long, reflecting more than 100 years of public concern to preserve the material evidence of the nation's past. That concern has changed over time, and since the late 1970s efforts to integrate research, public education, and law enforcement to further safeguard these irreplaceable parts of our heritage have increased. The enactment of ARPA was a major result. Along with ARPA, there now is a significant body of law available to those who are responsible for protecting archeological resources from looting and vandalism. Case histories demonstrate that effective enforcement has increased, especially when conducted as part of a larger program of archeological resources stewardship and public awareness. Often, these cases have inspired the public's interest in its heritage and fostered a wider understanding of its rich cultural past.