PROTECTION OF ARCHAEOLOGICAL RESOURCES ON PUBLIC LANDS: HISTORY OF THE ARCHAEOLOGICAL RESOURCES PROTECTION ACT

Annetta L. Cheek

Introduction

Throughout the 19th century, the inquisitiveness of the American spirit fostered an interest in the prehistoric ruins and objects the pioneers discovered as they moved westward. Late in the century, public interest in the art, history, and prehistory of North America reached a fevered peak, stimulated by the discovery of the major ruins of the Southwest. As the century drew to a close, it seemed that our very enthusiasm was going to destroy the objects of our interest, as more and more ruins were stripped and their contents hauled East to grace the walls of museums and private collectors.

A growing concern over this phenomenon at the turn of the century resulted in pressure being brought on Congress to pass legislation protecting antiquities on public and private land. As a result, Congress passed the Antiquities Act of 1906 (16 USC 431-433). Not only did this Act protect "any historic or prehistoric ruinor monument, or object of antiquity" located on public lands, it provided authority for the President to withdraw lands from the public domain and set them aside as national monuments, and to accept land relinquished for such purposes by private landowners.

This Act remained the keystone of our efforts to protect archaeological resources on public lands until 1974. As far as we know, the first legal challenge to the Act was the case of United States v. Diaz, decided in the Ninth Circuit Court of Appeals, which covers many of the Western states. In that case, Diaz, had been convicted for a violation of the Act for stealing a number of recent religious objects from a cave in the San Carlos Indian Reservation. In 1974, the Appeals Court overturned the lower court's conviction stating that the terms "object of antiquity," "ruins" and "monuments" were vague, and on that basis found the Act to be unconstitutional.

While several convictions were obtained under the Act over the next few years (Collins and Green 1978), the Diaz case rendered the Act useless in the Ninth Circuit. In 1977, a case in New Mexico resulted in a U.S. Magistrate's decision that the Act was unconstitutional. Furthermore, it was becoming apparent that, with the escalating prices for prehistoric artifacts, particularly from the Southwest, the minimal penalty provisions of the Antiquities Act were no longer sufficient deterrents to looting and vandalism. In addition the $500 fine associated with the Antiquities Act, although close to the average yearly salary for Americans in 1906, is not the deterrent it was in the early 20th century.

The Archaeological Resources Protection Act of 1979

Several individual archaeologists decided to work for new legislation to supplement or replace the Antiquities Act (Collins and Michel 1985). The support of the Society for American Archaeology was solicited. Congressman Morris Udall of Arizona, Chairman of the House Interior Committee, which had jurisdiction over any such legislation, was contacted; he promised support for a strong bill. In 1977, initial contact with the Department of the Interior revealed that Interior was developing draft legislation. After a frustrating wait of many months, however, Interior's bill was revealed to contain little more than minor revisions to the Antiquities Act that would resolve the definitional problems revealed by Diaz, but would do little else.

As a result, a small group of archaeologists resolved to draft their own bill. They intended the bill to be a comprehensive reform of the provisions for protecting publicly owned archaeological resources. They wanted to prohibit looting as well as selling, purchasing, bartering, trafficking in, transporting, or receiving looted artifacts from federal lands. Trafficking in interstate commerce was also banned if the violation of a state or local law was involved. Greater criminal penalties were included, and a system of civil penalties was included to cover damages and repair of the damage done to sites.

Initially the archaeological community intended to continue to work through Interior, and a draft bill was provided to the Department and to Congressman Udall in April, 1978. At about the same time, U.S. District Judge William Copple of Phoenix ruled that the government could not prosecute three men who had been caught looting a prehistoric site on a national forest in Arizona. The government, knowing that the Antiquities Act had been declared unconstitutional in that jurisdiction, sought to prosecute the men for theft of government property. The judge ruled that the theft of government property charge was inappropriate and that the men should be prosecuted under the Antiquities Act. But, since that Act was unconstitutional they could not be prosecuted at all. The judge himself suggested that Congress should correct the situation with legislation.

This decision made the situation even more desperate. After waiting throughout the summer for Interior to produce a viable bill, the archaeologists decided to try to get their own bill introduced. The Society for American Archaeology, for the first time in its history, agreed to commit funds for a professional lobbying effort in Congress. A bill was introduced on February 1, 1979.

Over the next nine months, considerable effort was expended working with Congress (the role of Congress is discussed further in Domenici and Nuemann this volume) and with various special interest groups to hammer out a bill that could be passed. A number of controversial issues developed. The issue of "arrowheads" was one of the most difficult, due to concern about making surface collecting by casual collectors illegal (Beaty 1985:93-4). Eventually, compromises on the remaining issues were worked out. The Archaeological Resources Protection Act of 1979 (16 USC 470 aa-ll) (ARPA) was signed into law by President Carter on October 31, 1979. The Act was considered a great victory for archaeology, and was to be a major tool in anti-looting and vandalism efforts.

ARPA contained a number of important new provisions. In addition to imposing new and severe penalties for excavation or destruction of archaeological resources, it imposed the same penalties for the unauthorized "removal" of such resources and their sale or purchase. It even imposed penalties on interstate commerce in such artifacts when removed in violation of ARPA or in violation of any state or local ordinance. This last provision essentially makes it an ARPA violation to transport across state lines any artifacts stolen from a state park or even private land. ARPA also provides for the forfeiture of any vehicles or other equipment involved in a violation - a provision that has proven an important tool in the hands of federal prosecutors. The Act refined and extended the permitting provisions of the Antiquities Act. It also set up a system of civil penalties for minor violations. Clearly, Congress intended these penalties to be an easy-to-use tool to deter minor violators of the Act (Senate Committee on Energy and Natural Resources 1979). However, federal agencies do not seem to be using these tools to the extent Congress intended.

Uniform Regulations

As soon as ARPA was passed, federal agency personnel began using it in the battle against vandalism and looting. It quickly became apparent that without the uniform regulations called for in the Act, implementation would be difficult if not impossible. Many problems during the development of the statute were "solved" by deferring to the regulations. Many critical definitions and processes were not specified in the Act.

The job facing the rule writers was a mammoth one. The Act called for "Uniform Regulations"; this meant that all four of the Executive Branch units named in the Act - the Departments of Interior, Agriculture, and Defense, and the Tennessee Valley Authority (TVA) - had to agree on the text of the regulations. The individual agencies involved (including the National Park Service, the Bureau of Land Management, the Fish and Wildlife Service, the Army Corps of Engineers, the TVA, and the Forest Service) represented a great diversity of interests in and commitments to archaeological resources.

Even though the agencies began meeting to develop regulations before the Act was passed, it was four and a half years after the Act became law that the regulations were adopted (compare this to the regulations implementing the Antiquities Act of 1906, which were promulgated six months after passage). How did this delay happen?

For anyone who has not worked within the environment of the Federal Government on a project as complex as uniform regulations, it is hard to imagine what transpires. In the case of these regulations, an overly large and ever changing group of subject area specialists from agencies with different and often competing interests met to try and accomplish the task. Membership shifted, old issues had to be revisited, and critical members of the overall federal resource protection team - law enforcement specialists - were not represented (Friedman 1985). After an initial flurry of activity, staff from the Department of the Interior, which had the lead, consistently failed to meet designated deadlines.

Early in 1980, it was announced that public hearings would be held to solicit the views of concerned citizens on the direction the regulations should take and what issues needed to be considered. This public participation process, which is now a required component of regulatory development provided valuable insight into the views of private citizens but at the same time raised issues which required extensive and time-consuming work to resolve.

A number of major issues were highlighted by the public hearing process. Most significantly, the definition of archaeological resources presented a thorny problem. This section of the regulations drew the most public comment and regulators had to balance the apparent intent of Congress that a "laundry list" of such resources be developed with the need to ensure that currently unnamed resources would be protected. Ultimately, a broad definition that includes specific but noninclusive examples was developed (Friedman 1985:97). Other issues also were raised that bogged down the regulatory effort.

In March, 1982, the Director of the Bureau of Land Management recommended to the Secretary of the Interior that the regulatory task force be disbanded because of the lack of progress. Instead, the Department changed the personnel involved and placed the Departmental Consulting Archaeologist in control of the group (Keel and Cheek 1985:101).

With the change in personnel final drafting of the regulations began. By June, the document was completed, and a host of other requirements were met over the next several months. By March, 1983, all other agencies in the Department of the Interior completed their review and the rules were sent to the other two Departments and the TVA. By May, Defense, Agriculture, and TVA gave their approval. The last stop was the Office of Management and Budget, which had 10 days to review the rule and 60 days to review the permit application. Then, after one final departmental review the rules went to the Federal Register for final publication on September 26, 1983.

Those of us who were working on the rules at the time breathed a great sigh of relief when we delivered the rules to the Federal Register. Bennie Keel and I had not been involved in the early development of the rules and had missed the opportunity to discuss the major technical and administrative issues that had to be resolved. However, Keel and I had the "pleasure" of shepherding the rules through their last 18 months of bureaucratic review, changing "therefore" to "therefor" and making other such significant changes. We were personally delighted to see the last of the document.

The next day, disaster struck. The Federal Register called and said the rules were in the wrong format. We had used a regulation number in the National Park Service's regulation system. The Federal Register had recently decided that uniform regulations issued by several agencies had to be promulgated separately by each agency, and had to have a regulation number specific to each agency. So, back we went to reformat the whole thing, break it out into four separate but identical packages, call the other Departments and explain the situation and get new numbers assigned. Of course, the final package had to go through the bureaucratic "surname process" in each department all over again, and ultimately signed by the head of the department. All in all, this process took three more months. The new final package went back to the Federal Register and was published on January 6, 1984. Because of legal procedural requirements, they could not go into effect for 30 days, until February 6, 1984 - four and a half years after ARPA was passed. At last, federal managers had the regulatory tools they needed to enforce ARPA.

ARPA Amendments

In 1988, two amendments to ARPA were enacted (see Domenici and Nuemann this volume for additional discussion of the ARPA amendments). Although it is too early to determine the extent to which these amendments will impact federal programs, the provisions corrected weaknesses in ARPA that were identified by the Congress, the Executive Branch, the law enforcement community, and the profession as needing resolution.

The first amendment, enacted October 28, 1988, requires the four agencies who were named as having principal responsibilities under ARPA - the Departments of Interior, Agriculture, and Defense and the TVA - to develop plans for surveying lands under their control. The surveys are to determine the nature and extent of archaeological resources on those lands. This requirement reflects the concern that the major federal landowners are not being successful in protecting archaeological resources on their lands, in large part because the exact nature, extent, and location of those resources are not know. The amendment further requires those agencies to develop documents for the reporting of suspected violations of ARPA and to establish when and how those documents are to be completed.

The second amendment, enacted November 3, 1988, lowers the threshold of damage done to a site that can result in a felony conviction, large fine, and imprisonment of two years. As a result, damage of only $500 can result in severe penalties. This provision reflected the concern of archaeologists and law enforcement staffs that too much effort was being spent establishing that the threshold previously listed in ARPA for such penalties - damage greater than $5,000 - was exceeded in specific cases.

The same amendment requires that all federal land managers establish a public awareness program on the significance of archaeological resources and the need to protect them. This requirement responds to the growing awareness among federal managers and resource protection staffs that the looting and vandalism problem cannot be solved without the active assistance of a concerned public.

As a result of these amendments, the four principal agencies published proposed uniform rules on January 29, 1990. These would amend the uniform regulations to include in the description of prohibited acts to include the attempt to remove, deface, etc. archaeological resources.

Additionally, the Department of the Interior has developed a preliminary proposed rules that would amend the uniform rules to lower the threshold of felony violations and to establish public awareness programs and schedules and plans for archaeological surveys. The draft also provides for the Secretary of the Interior to report to Congress on public awareness programs and on agency programs to document violations (Michele Aubry, personal communication, April 1990).

The Situation Today

Clearly, federal agencies have made significant efforts to improve the protection of archaeological resources on lands they own and manage. The most recent reasonably accurate and complete data available (National Park Service 1989) shows, in fiscal years 1985 and 1986, that federal agencies spent at least $74,000,000 on archaeological work, surveyed over 13,000,000 acres, and determined approximately 5600 sites eligible for inclusion in the National Register of Historic Places. Through about the same time period, the Bureau of Land Management had surveyed about 7.5 million acres and recorded over 100,000 sites. The Forest Service had surveyed 18.4 million acres and also recorded over 100,000 sites (Schalk 1988).

A number of agencies have specifically recognized the importance of public awareness efforts in their resource protection program through the initiation of interpretive and educational programs and public lectures. Training programs for employees and contractors are included as a routine part of cultural resource management programs by several agencies. Other agencies encourage the participation of volunteers in their programs. Archaeological contractors are sometimes required to prepare articles and slide or video presentations for use in interpretive programs. Site steward programs have been established in some areas to enlist private citizens in the task of guarding individual resources from vandalism and looting (see Hoffman this volume for a discussion of site stewardship programs).

In addition to numerous area and site specific efforts by federal agencies, the national spotlight continues to be focused on the issue of protecting archaeological resources. Both the Senate and the House, as well as the General Accounting Office, have examined the problem in recent years (Senate Committee on Energy and Natural Resources 1986; House Committee on Interior and Insular Affairs 1988; General Accounting Office 1987).

Despite this attention and the efforts of federal agencies the loss of publicly owned archeological resources continues at an alarming pace. Of the approximately 0.8 billion acres of public land, less than 10% has been surveyed and it is unlikely that a significant portion of the remainder will be surveyed in the foreseeable future. Looting and vandalism is clearly continuing almost unabated. In fiscal years 1985 and 1986 (National Park Service 1989:32) there were over 1000 documented cases - and this is likely the tip of the iceberg. Furthermore, there was a sharp increase from 1985 to 1986. On the other hand, there were just 33 arrests and 82 citations for ARPA violations and only 43 convictions; the majority of these occurred in 1985. A recent General Accounting Office (GAO) report, which focused on the Four Corners area, reported that commercial looting has not been deterred, and scientific information continues to be destroyed (GAO 1987:21). The three major federal land managers in that area - National Park Service, Bureau of Land Management, and Forest Service - had a total of three people in fiscal year 1985 whose primary responsibility was the protection of archaeological resources on over 104 million acres of public lands. The three agencies had surveyed only about 7% of their lands in that area and recorded about 136,000 sites. They estimate a total of almost 2,000,000 sites, of which approximately one third have been looted or vandalized. Often, the sites that are looted or vandalized are those with varied, stratified deposits, which hold both the greatest amount of scientific information as well as the most commercially valuable artifacts.

Conclusion

When ARPA was passed, archaeologists expected that the rate of looting and destruction of our country's archaeological heritage would subside. Unfortunately, this has not proven to be the case. While casual looting may be on the decline, clearly commercial looting is not, and archaeological resources on public lands continue to be seriously endangered.

An article of this scope cannot discuss the possible solutions to this problem in even a remotely thorough manner. Instead, I'll examine a few individual ideas about what might be done to make some impact on the problem.

First, it is obvious that passing a law is just the beginning. Agencies need to be convinced that it is important to enforce the law, that of the many responsibilities they have, this one should be near the top of the list. Furthermore, even if they are convinced, they must have resources to implement those responsibilities. This is something that both the archaeological profession and the interested public can help with through lobbying efforts in the Congress. We also need to keep in close contact with top executive agency management who need to be educated about the problems - and who need to be convinced that enough of the public cares so that they need to care. However, as LeBlanc points out, this must be a joint effort between professional archaeologists, grass roots interest groups, professional lobbyists and not just an effort by archaeologists alone (LeBlanc 1985:16).

Second, a major component of fixing this problem is public education in the largest sense (see Chapter 4 this volume for discussions of archaeology and education). This has been the main thrust of the Society for American Archaeology's "Save the Past for the Future" project, jointly sponsored by the Society and a number of cooperating federal agencies (see Reinburg this volume for a discussion of the "Save the Past" project). By education I do not mean simply presenting school children with the facts and figures of archaeology. I include educating federal land managers, federal law enforcement personnel, and everyone involved in our judicial system. A major problem with obtaining prosecutions under ARPA has been the reluctance of the judicial bureaucracy to take on cases of this nature. It is up to the archeological community to change that. We need to educate our local, state, and national legislators about the problem and the need for resources to be focused on the problem in an effective way.

Finally, we all need to do whatever we can do locally to help protect the archaeological resources in our own backyards. Participate in site steward programs get friends and relatives to do the same. Report any violations you know about, even if they seem minor.

The passage of ARPA did not achieve all the results we expected. However, it was, and remains, a major victory. Public awareness of and concern about the looting problem has increased but the job of protecting these resources is barely begun. federal agencies simply do not have the fiscal and personnel resources to do the job, and they never. We all have to do our part.

References Cited

Beaty, L. (1985) ARPA Enacted: The Legislative Process. American Archeology, Vol 5, No. 2. Pages 90-94.

Collins, R. B. and D. F. Green (1978) A Proposal to Modernize the American Antiquities Act. Science, 202:1055-1059.

Collins, R. B. and M. P. Michel (1985) Preserving the Past: Origins of the Archaeological Resources Protection Act of 1979. American Archeology, Vol. 5, No. 2. Pages 84-89.

Friedman, J. (1985) The Regulations: The Early Years. American Archaeology, Vol. 5, No. 2. Pages 94-101.

General Accounting Office (1987) Problems Protecting and Preserving Federal Archaeology Resources. GAO/RCED-88-3. General Accounting Office, Washington, D.C.

House Committee on Interior and Insular Affairs (1988) The Destruction of America's Archaeological Heritage: Looting and Vandalism of Indian Archaeological Sites in the Four Corners States of the Southwest. Committee Print No. 6. Government Printing Office, Washington, D.C.

Keel, B. C. and A. L. Cheek (1985) The Regulations: The Late Years. American Archeology, Vol 5, No. 2. Pages 101-103.

LeBlanc, S. (1985) ARPA: Some Lessons. American Archeology, Vol 5, No. 2. Pages 115-117.

National Park Service (1989) Federal Archeology: The Current Program. National Park Service, Washington, D.C.

Schalk, L. (1988) Looters of the Past: An Enforcement Problem in the Pacific Northwest. CRM Bulletin: Archeology and the Federal Government. Vol 11. Pages 32-34. National Park Service, Washington, D.C.

Senate Committee on Energy and Natural Resources (1979) Hearing before the Subcommittee on Parks, Recreation and Renewable Resources of the Committee on Energy and Natural Resources. Senate Hearing 96-26.

---- (1986) Management of Archeological and Paleontological Resources on Federal Land. Senate Hearing 99-463. Government Printing Office, Washington, D.C.

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