CHAPTER 5

  ARCHAEOLOGICAL SITE PROTECTION PROGRAMS

What we need is nothing less than a national commitment to protect what the German poet Rainer Maria Rilke called the "stored humanity of place" (Ronald L. Fleming, New York Times, 1987).

No battle plan ever survives contact with the enemy (ancient military proverb)

 

 

 

 

 

 

 

OPERATION SAVE: AN INTEGRATED APPROACH TO PROTECTING THE PAST

Lynell Schalk

 

Introduction

Over a hundred years ago, Abraham Lincoln told the nation, "Public sentiment is everything. With it, nothing can fail. Without it, nothing can succeed." Those involved in various national efforts to halt the looting and destruction of our nation's cultural legacy can fully appreciate Mr. Lincoln's perspective. Many believe that saving the archaeological record is not merely a governmental responsibility and that programs to heighten citizen awareness, concern, and involvement are critical. Operation SAVE is one such program.

 

Background

With the passage of the Archaeological Resources Protection Act in 1979 (ARPA), anticipation was high amongst those concerned about archaeological protection. Congress believed the deficiencies of the 1906 Antiquities Act had been remedied. Archaeologists were satisfied that this new law with its stiffer penalties would heighten public awareness and act as a strong deterrent. The law enforcement community anticipated enforcing what they now hoped would be an enforceable law.

These expectations were not fully realized, however. Delayed promulgation of implementing regulations for over four years hampered prosecutorial efforts and frustrated the criminal justice community. Juries were confused by the complexities of the new statute; forced to listen to long hours of archaeological expert witness testimony. As a result jurors often lost interest. All of the defendants who opted to go to trial during this interim period were either acquitted or convicted of only misdemeanor crimes. Defendants quickly learned that refusal to plea bargain with government prosecutors often resulted in exoneration.

But these prosecutorial failures were not merely related to a lack of regulations. Public ignorance and apathy were also hard at work. Federal agents and prosecutors realized that enforcement of this new law resembled the nation's "War on Drugs." Apprehension of violators and seizures of artifacts were making little inroads in halting the demand for illicit artifacts. Public attitudes were apathetic at best - and often sympathetic toward the "supplyside."

This realization probably became most evident in the Pacific Northwest in May of 1982 when two men were acquitted by a federal jury after an exhausting five-day trial in a stuffy courtroom in Medford, Oregon. Charged with felony violations of the Archaeological Resources Protection Act and other statutes, the two defendants walked out of the courtroom exonerated of all charges. The judge even ordered the government to return the men's artifacts and digging implements. This included sifting screens, shovels, respirators, eye protectors, artifact containers, and a briefcase marked on the bottom as property of the United States Government.

This case came about when a Bureau of Land Management (BLM) special agent apprehended three men in an ancient rockshelter site on public lands in a remote valley of southern Oregon late one spring afternoon in l98l. The site was unsigned and unfenced. Confronted at the site by the agent, the men lied about their identities and denied any ownership or knowledge of the freshly-dug hole at the site or the digging equipment hidden under some brush in the back of the cave. They argued with the agent that surface collection of arrowheads was legal under the new law, yet denied they were doing anything more than just hiking. Later when the defendants stood trial, they testified that they believed that no one owned this land or cared about it or it would have been better protected by the BLM. When one of the men's fingerprints was lifted from the inside of an artifact container and the government presented this as evidence, the defense attorney argued that his clients were only surface collecting for arrowheads. When the government introduced site material and a projectile point which had been recovered from one of the stashed sifting screens, the defense attorney accused the case agent of placing the arrowhead in the screen to incriminate his clients. Their defense for lying about their identities to the agent when apprehended, was that the lone officer was visibly wearing a firearm and they were afraid to identify themselves.

After three days of exhausting testimony under extensive cross-examination by the defense, the government rested its case, assured that the evidence was solid. The defense then brought forth a string of witnesses who testified that they too had dug in this site over the past twenty years. Of course, all of them were clear in their explanations that this was done many years before; therefore, the five-year statute of limitations had run on their crimes. The defense argued that the site was already totally destroyed by the time the defendants got there. One defense witness wore a large obsidian spearpoint bolo tie during his testimony. Another witness identified himself as a Forest Service employee and a para-archaeologist. He brought in a plastic fishing tackle box full of ancient pieces of sandals, matting, and cordage, all of which he readily admitted to removing from the rockshelter while employed by the Forest Service. (NOTE: The judge allowed him to keep this federal property after his testimony although the United States Attorney later ordered the BLM and Forest Service to recover the artifacts. The artifacts were eventually recovered, but the federal employee filed a lawsuit. He later lost his suit). During the defense attorney's closing argument, the jury was told:

It's the professional archaeologists and the Government experts and the agents of the Government and the police and law enforcement community against the people who go out and dig and explore and want to learn about archaeology on their own. That's the way the case has come down.

This is a big case, and all the archaeologists are looking at this case to see what's going to happen. And frankly, it's a premature case. Frankly, they should have waited for regulations and they should have told these guys, "Hey, next time you're going to be in a lot of trouble. You've gotten fair warning now, but stay out of there." And what would really have been fair is to post it, because it's a new law. Who knows about it? Who has notice of this change or of the definition of resource? Are we all supposed to have knowledge of the thousands of laws that Congress passes every day because its published in the Federal Register? That's the burden the Government wants to impose on this individual. But they don't want to accept any responsibility for preserving that site.

This trial made it perfectly clear that public attitudes were contributing to the government's inability to protect the nation's archaeological heritage. The government and its employees were the ones who had been put on trial.

But juries were not alone in their lack of understanding and appreciation for the new law. Prosecutors, judges, land managers, even law enforcement officers and archaeologists, were not as aware and supportive as they should have been during the early part of the l980's. And more importantly, a significant special interest group was generally being ignored by everyone - the Native American community. Their ancestral sites were being desecrated. Ancient skeletal and mummified human remains were being publicly displayed and openly sold in the national market. The American public was only being told about the scientific values of archaeology, so important to the archaeological community. But outraged Indian voices were not being heard. The time was right for a new direction - an integrated and cooperative effort to increase protection of the archaeological record. Out of this was born Operation SAVE. Operation SAVE, which stands for "Save Archaeological Values for Everyone," emphasizes three areas: (1) public education initiatives; (2) archaeological protection training; and (3) increased enforcement operations.

 

Operation SAVE

In December of 1986 the Bureau of Land Management's (BLM) Law Enforcement Staff in the Oregon State Office proposed a three-part agency program to heighten citizen awareness and enforcement of the Archaeological Resources Protection Act in the Pacific Northwest. The framework was laid in the 1986 State of the Union address when the President of the United States called upon all Americans to "take pride in their outstanding public lands and historic sites that belong to everyone." Shortly thereafter, the Secretary for the Department of the Interior launched the "Take Pride in America" campaign. In July of 1986, in a letter written to the Attorney General, the Secretary asked the Department of Justice to assist in "...spreading awareness of the importance of crimes against our heritage throughout the criminal justice community. It is important that we prosecute these crimes and impose appropriate penalties which will serve as examples to deter potential offenders."

Realizing that a successful protection effort would depend on agency support at all levels of the organization, the plan was presented to the BLM's State Director in Oregon and his management team. There was immediate and unanimous acceptance of the proposal. From this, Operation SAVE became the Bureau's regional program and later on, an agency prototype program for increasing archaeological protection efforts on the nation's public lands. A small and workable committee was formed consisting of a law enforcement officer, an archaeologist, and a public affairs officer. Meeting regularly, but informally, the team made assignments and periodically assessed progress. Costs for the program were absorbed in existing budgets. Most of the first year's work was initially carried out by the three committee members. In the subsequent years, participation has expanded to all levels of the organization.

Public Education Initiatives

Operation SAVE was launched on July 7, l987 with a news release. This release generated numerous media inquiries. Announcement letters were sent to the U.S. Attorney's office, the Governor, archaeological societies, and the Washington Office. The committee members participated in a number of joint television and radio interviews. This prompted follow-up interviews at the district level and media field visits to protected archaeological sites. Coinciding with the public launching of Operation SAVE, Oregon Governor Neil Goldschmidt signed a proclamation on July 1, 1987 declaring "Archaeological Resources Protection Week."

After a logo was selected for the program, posters and stickers were produced. The logo depicts a prehistoric Wishram Indian rock art design which appears on artifacts and rock faces throughout the Columbia River region. Before the posters were printed, permission to use the design was obtained from the Yakima Nation Tribal Council. The Yakimas only condition was that the design was not to be used for commercial purposes. After printing, the posters and stickers were widely distributed throughout the Pacific Northwest, including placement at public libraries, state police offices, tribal offices, BLM campgrounds and reception desks, post offices, professional organizations, universities, state park offices, museums, senior citizen centers, and places of business. On each poster and sticker is listed a toll-free number (1-800-333-SAVE) for reporting archaeological crime. The posters are also frequently provided to landowners living adjacent to public lands and various public land user groups.

The toll-free crime reporting line is intended to encourage the public to report archaeological crime. The line rings directly into the law enforcement office in the BLM's Oregon State Office. Since its installation, the Bureau has received numerous calls from the public and informants reporting suspected violations. Callers also frequently ask questions regarding archaeological protection laws and Operation SAVE as well as request posters and other materials. The staff has also received a number of calls from outside the region during the past four years. The staff takes the information and refers the calling party to the appropriate authorities.

Operation SAVE also promotes as many public presentations on archaeological protection as possible by Bureau employees. Particular attention is given to requests from schools, museums, local archaeological groups, scout troops, and tribal organizations. Speakers emphasize that regardless of one's level of personal appreciation for archaeological values, it is against the law and the law is being enforced on the federal lands.

Training

Archaeological protection training is Operation SAVE's second area of emphasis. During its first year, Operation SAVE sponsored and supported training courses for an estimated 412 federal, state, and local agency employees from over 100 agencies (for additional information on training see Waldbauer this volume). The agency also provided instructors for three forty-hour interagency sessions of the Federal Law Enforcement Training Center's "Archaeological Resource Protection Training Program (ARPTP), two interagency courses in Washington, D.C. entitled "Archaeological Protection Issues for Managers;" three interagency classes in Oregon and California on "Archaeological Protection Training for Field Employees;" and a number of other training sessions held throughout the Pacific Northwest and other areas on the West Coast. Native Americans were given priority in enrollment in the ARPTP class due to their increasing concerns for protection of their ancestral and sacred sites. More recently, an interagency meeting was held with the Warm Springs Indians to discuss the handling of burial remains recovered during criminal investigations. Field trips have been given to the Coquille, Lower Umpqua, and Siuslaw Indian tribes. At the request of the Siletz Tribe, a one-day training session was held to discuss coordination and integration of Bureau programs and tribal site protection concerns. As time and staffing allows, Operation SAVE also tries to provide instructors for sessions held outside the region. One such session was given in Victorville, California for twenty new law enforcement rangers stationed in the California Desert Conservation Area. The new officers were given training in archaeological protection statutes and site recognition. There have also been a number of requests from Pacific Northwest universities asking for instructors to lecture on archaeological protection and the Bureau's cultural resource management program. The committee tries to respond to as many of these requests as time allows.

Enforcement Operations

The third major area of emphasis in Operation SAVE is increased law enforcement operations. Under the direction of the BLM's Law Enforcement Staff, state and district office archaeologists have assisted Bureau law enforcement personnel in several proactive surveillance and site monitoring operations. In the spring of l987, teams of BLM special agents, rangers, and archaeologists in Oregon and California conducted an interstate aerial detection and surveillance operation - the largest such program in the history of archaeological enforcement. The three-state border area of Oregon, California, and Nevada was covered. Six BLM districts participated in the operation. The teams encountered sixteen violations of state and federal law, fourteen of which were archaeological violations. Officers seized 70 illegally-taken surface artifacts and issued a number of written warnings regarding surface collection of artifacts. While conducting the operation, archaeologists took advantage of the cooperative opportunity to explain the prehistory of the region to the individual law enforcement officer they were teamed with. The officers used the opportunity to raise the awareness level of the archaeologists regarding the criminal justice system and law enforcement constraints. And most importantly, the two groups learned how to work together and even developed an esprit de corps. As a result of these enforcement operations, the public was beginning to realize that the laws were being enforced. Even surface collection of artifacts would no longer be tolerated. The illegal collector was effectively put on notice.

The BLM also intensified their investigations of archaeological crime. In the first year, two subjects were convicted in federal court and over 300 artifacts were forfeited. Three more subjects were convicted in state court for burial desecration. Another subject was indicted following an interagency investigation. (NOTE: In l988 he was convicted and forfeited several thousand artifacts, served four months of a two-year prison sentence, was given five years probation, and ordered to serve 400 hours of community service). Oregon is presently one of three states with a significant number of archaeological prosecutions occurring each year.

Operation SAVE also emphasizes assistance to other agencies and tribal organizations in their investigative efforts. Over one hundred agencies were assisted during Operation SAVE's first year. As a result, we are seeing increased awareness and enforcement by other agencies, and as a result, more awareness by those who illegally collect and deal in artifacts.

Now into its fourth year, Operation SAVE has moved from a reactive to a proactive response to archaeological crime. This effort is expected to result in a significant decline in the illicit artifact market in the Pacific Northwest within the next few years.

 

Conclusion

Since its first year, Operation SAVE has continued to reach as many people as possible. Frequent contacts are made with the news media. In l989 the committee members and district archaeologists worked closely with an investigative reporter. A series of articles later appeared in the Bend Bulletin regarding the looting and trafficking of archaeological sites in the region. Operation SAVE posters continue to be widely distributed. Posters have even been shipped to Thailand, China, the Soviet Union, and Canada. One committee member annually lectures at a cultural resource law class at the Lewis and Clark Northwestern School of Law. In eastern Oregon the BLM has added more rangers to increase surveillance and patrols of archaeological sites. The aerial surveillance program continues, having expanded to a multi-state and multi-agency operation. An archaeological exhibit is now set up annually at the Oregon State Fair where Operation SAVE posters and other program information are widely distributed to fairgoers. In l989 a visiting archaeologist from Thailand was escorted throughout western Oregon by two committee members to view the archaeological looting and trafficking problem in the Pacific Northwest and the Operation SAVE approach to protecting the past.

After four years, Operation SAVE continues to be an unfunded program and no additional federal employees have been hired. Its success has been the result of employees' personal commitment and a willingness by all participants to work together for a common objective. The hallmark of Operation SAVE has been its integrated approach. In the past, archaeologists generally generated most of the public education programs. It was also the archaeologists who monitored sites, discussed site protection and the values of archaeology with the public, and developed cultural resource protection plans. With minimal staffing in cultural resource programs, these efforts were generally one-person efforts.

Working under these conditions, some archaeologists occasionally became involved in areas outside their expertise. In fact, it was a committee of archaeologists who wrote the ARPA criminal regulations. It was a task force of archaeologists in the state of Utah who proposed changes in the criminal laws. At times, these various committees were making proposals contradictory to effective law enforcement. Archaeologists were proposing laws and regulations which the criminal justice community perceived as constraining or even self-defeating in their investigative and prosecutorial efforts. A few archaeologists even publicly criticized enforcement efforts. Law enforcement officers and prosecutors were rarely consulted and in most regions of the country, few officers showed any interest in archaeological enforcement. There was also some division between archaeologists and Native Americans. Indian groups were outraged at the continuing disrespect by some archaeologists in their treatment of their people's sacred sites and ancestral remains. Indian values appeared to be secondary to scientific values. The common thread of concern for archaeological protection was failing to pull these various factions together. It became evident that successful protection and enforcement efforts would require a united effort.

Operation SAVE is hopefully serving to bring these diverse groups together for the first time in a unified and coordinated effort to save the nation's past. Through Operation SAVE, the citizens of this country are made aware that the archaeological statute passed by Congress in l979 is being enforced. Citizens are expected to respect the law, particularly if they are given notice that the law is being enforced. Operation SAVE is a program that is giving notice.

 

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