THE FEDERAL GOVERNMENT'S RECENT RESPONSE TO ARCHAEOLOGICAL LOOTING

Francis P. McManamon

Introduction

In his recent, critically praised and popular book, A Thief of Time, Tony Hillerman provided his readers with a view into the seedy world of looters, full of stolen backhoes, falsified documents, violence, and antiquities trafficking. This is the reality of archaeological looting throughout the United States, not just in Hillerman's Southwest. The looting of archaeological sites robs all Americans of an irreplaceable part of their national heritage. The information about the past that looters destroy reduces the extent to which we can ever understand how people lived in the past and what motivated them. Archaeological sites do not regenerate; they cannot be restored or replanted like wetlands or forests. The objects sought by commercial looters are rare works of art that should be held in trust and interpreted.

Official concern by the Federal Government for the preservation of important archaeological properties began during the 19th century in response to the destruction and looting of Indian ruins in the West. The nature of official concern has expanded beyond a concern with archaeological looting on federal land; however, the fight against looting remains a concern of primary importance to many federal archaeologists, law enforcement officials, and managers. In the next section the development of the Federal Government's involvement with archaeological preservation is described briefly. The following section describes more recent federal responses to the problem of archaeological looting.

A Brief Historical Background of Federal Archaeology

The first archaeological investigations in this country were conducted by individuals and private organizations more interested in knowing something about the people who lived in America before European contact than in recovering artifacts as art objects. This is considerably different from what was happening at the same time in other parts of the world. In Greece, Italy, and Egypt, for example, many archaeological sites were being looted for the valuable objects they contained, with little or no effort to learn about the people who made them.

The early interest in excavating sites for scientific reasons and publishing the results had a major influence on the development of archaeology in this country and federal involvement in archaeology.

In 1784 Thomas Jefferson excavated an Indian mound on his Monticello plantation in order to determine its construction and use; his description of the work and his analysis of it were published in his Notes on the State of Virginia (Jefferson 1984). The importance of Jefferson's work is that it was undertaken to answer research questions, used careful excavation techniques to recover data, drew conclusions, and was published, all of which were to become part of modern archaeology (Willey and Sabloff 1974:36-38). From this and other early beginnings, interest in understanding and preserving archaeological sites grew, archaeology developed as an academic discipline and science, and efforts to preserve American archaeological resources resulted in a body of federal legislation, which today guides many archaeological activities conducted in this country.

In addition to Jefferson's early work, mounds near Cincinnati were examined in 1793, and the results were published by the Historical Society of Ohio. During the mid-1800's public concern for historic sites, such as Mount Vernon, stimulated movements to preserve sites associated with individuals and events important to the country's short but dynamic history (Hosmer 1965). During the late 1800's there was a similar concern for Revolutionary and Civil War battlefields. Private organizations and individuals were the primary sponsors of archaeological activities in this country through most of the 19th century, but this was to change as a result of the Federal Government's efforts to map the West.

In the late 1800's the Federal Government sent expeditions to map the West. As a result, numerous spectacular archaeological sites were documented in the American Southwest. In addition to reporting on the ruins, the extensive looting that had already taken place at prominent sites such as Pecos, Mesa Verde, and Casa Grande was noted. Expeditions organized by the U.S. Geological Survey and the Smithsonian Institution's Bureau of Ethnology, both established in 1879, and private expeditions such as the Hemmenway Southwest Archeological Expedition (1886-1888), collected an enormous amount of archaeological data (Hinsley 1981). Increasing research by academic institutions and museums added to this. Using this information, influential citizens and members of Congress were able to establish legislation and funding in 1889 to protect and repair Casa Grande, a large prehistoric adobe ruin in Arizona (Lee 1970:20).

During the late 1800's and early 1900's concern for American antiquities grew in both private and governmental sectors. Reports and warnings from individuals and professional organizations, such as the American Association for the Advancement of Science, the Anthropological Society of Washington, and the Archaeological Institute of America, increased public awareness of the destruction of archaeological sites, which contributed to the passage in 1906 of the Antiquities Act (Lee 1970). This far-reaching statute made federal officials responsible for protecting archaeological sites as public resources and prohibited looting and vandalism. With passage of this Act, archaeological sites on approximately one-third of the country's land were, at least nominally, afforded protection. The 1906 Act also gave the President the power to establish National Monuments in areas of outstanding scientific and historical value (Rothman 1989).

The Antiquities Act provided a mandate for federal agencies administering public lands to preserve archaeological sites on those lands. During the 20th century, concern for the preservation of all kinds of archaeological and historic properties has produced many statutes that affect the treatment of archaeological sites. The scope of federal involvement in archaeology and the effects of federal activities beyond public lands increased substantially during the massive public works program of the 1930's. The majority of legislation addressing archaeological concerns has been enacted since that time. Interested readers will find more detailed accounts of the development of federal archaeology and historic preservation in Hosmer (1965, 1981), King, et al. (1977), King and Lyneis (1978), as well as Fowler, Friedman, Cheek, Neumann, Rogers, and King in this volume. In particular, the National Historic Preservation Act of 1966 has had important and positive effects on archaeological preservation (Advisory Council on Historic Preservation 1986; Stipe and Lee 1987).

In 1979, in response to an apparent failure of the Antiquities Act to protect archaeological sites, preservationists successfully lobbied for enactment of the Archaeological Resources Protection Act (ARPA) (Friedman, editor, 1985a, also see Cheek this volume). This statute expanded the provisions of the 1906 Act by establishing major criminal and civil penalties for violations of that Act, establishing procedures for issuing permits for archaeological testing and excavation on public lands, and requiring various interagency program reporting and coordination activities. In 1988 amendments to ARPA improved the ease with which felony prosecutions could be developed using that statute, made the intent to loot an equally punishable crime, and added requirements for federal agencies to undertake inventories of archaeological resources, develop public education programs, and standardize formats for reporting looting incidents.

Federal Efforts Against Looting: The Recent Actions

Since the 19th century the breadth of federal concern for archaeological preservation has grown to include consideration of the impact of modern life upon archaeological properties nationwide. However, the expansion of areas of concern has not reduced the attention that has focused on the looting problem.

During the late 1970's, rampant and growing looting and vandalism of archaeological sites in the Southwestern United States once again provided the impetus for legislation to improve site protection (Friedman 1985b). Between the late 1970's and mid-1980's much effort went into development and passage of ARPA and the approval of regulations to implement the statute (see Cheek this volume for a discussion of the history of ARPA).

The appearance of ARPA and its uniform regulations, however, proved to be only a new beginning point. Even before the uniform regulations were developed, activist archaeologists, law enforcement personnel, and like-minded advocates of archaeological preservation had begun to analyze the looting problem and share experiences in efforts to help in the fight against looting (Green and Davis 1981). This period also witnessed the completion of the most detailed investigation of archaeological looters and vandals that has been conducted to date (Nickens et al. 1981; see King 1982 for a summary of the results of this investigation).

Despite this level of attention, the looting problem has continued, fueled, perhaps, by regional economic downturns that limited the availability of legitimate economic activities in some areas and by the skyrocketing prices of American antiquities on the national and international art markets. The archaeological community, primarily through the Society for American Archaeology (SAA), but with the active participation of other archaeological and historic preservation organizations, has developed a program to highlight the looting problem (see Reinburg, Judge this volume). Federal agencies have participated actively in this program, contributing both funds and staff expertise.

Additional actions have been taken by federal agencies and Congress in response to the problem. The next section describes and comments upon these recent actions. These actions are considered in light of the three areas of concern identified for the Taos Working Conference on Preventing Archaeological Looting and Vandalism (Society for American Archaeology 1990): (1) understanding the problem; (2) combating the problem; and (3) preventing the problem.

Understanding the Problem

Recent efforts by Congress and federal agencies to better understand the looting problem have involved Congressional hearings, improved quantitative information about the extent of the looting and the effectiveness of protection, and initial research efforts to collect information on the nature and extent of looting.

In October 1985, at the instigation of New Mexico's Senator Jeff Bingaman, the Senate Subcommittee on Public Lands, Reserved Water, and Resource Conservation of the Committee on Energy and Natural Resources held a hearing, chaired by Senator Pete V. Domenici of New Mexico, in Albuquerque (Senate Committee on Energy and Natural Resources 1986). Reading the testimony and statements provided at this hearing one senses a rising level of frustration with the inability to quantify or even reach consensus on the magnitude of the looting problem. Some witnesses believed that while looting occurred, it was not substantial and was controlled. Others questioned such views, noting that, in their experience, no substantial sites in New Mexico had not been looted or vandalized (Senate Committee on Energy and Natural Resources 1986:136-142). Perhaps in reaction to the lack of clear information from the hearing, in December 1985, Senators Malcom Wallop of Wyoming, Bingaman, and Domemici asked the General Accounting Office (GAO) to investigate the extent to which organized looting of archaeological sites on federal land was occurring. GAO (1987:1) agreed in consultation with the Senators to undertake an investigation, but to focus its efforts on the Four Corners area of the Southwest.

Federal agencies also were becoming more concerned with understanding the looting problem. In July 1985 the Departmental Consulting Archeologist, Bennie C. Keel organized an interdepartmental meeting of federal agencies to discuss greater cooperation and coordination in federal archaeological activities. Agreement was reached to provide a common set of quantitative information governmentwide on a variety of archaeological topics. One of the important areas identified by the group for better quantitative information was the looting and vandalism of archaeological sites. Since then, these quantitative data have been collected, described, and analyzed as part of the Secretary of the Interior's Report to Congress on Federal Archeology (e.g., Keel, et al. 1989). In the dry world of government statistical reporting, these quantitative data supplement the vivid and personal accounts of looting in Tony Hillerman's fiction and the personal testimony of the Congressional hearings. Reported incidents of looting on federal land (Figure 1) have risen steadily in the years for which statistics are available: 430 incidents in FY 1985, 627 in FY 1986, and 657 in FY 1987 (also see King, McAllister this volume). Reported incidents are only the tip of the iceberg. Many archaeological sites are in remote areas, many are unknown even to the federal agencies that are charged with managing them, and federal agencies have limited resources for systematically monitoring the condition of sites that they do know exist.

Figure 1 also shows that federal law enforcement efforts against looting have a steady, if low level of success. Reported arrests or citations of looters indicate that only a small percentage of violators are being stopped or subsequently apprehended: 15% during FY 1985, 7% in FY 1986, and 10% in FY 1987. Reported prosecutions through the criminal justice system also are steady, but low in number and percentage of reported incidents: approximately 5% for FYs 1985 and 1986, and 4% for FY 1987.

Agency officials also recognized the need for more detailed information about looting incidents and prosecutions. They agreed to cooperate by assembling a clearinghouse for information about prosecutions of looters. This information would be shared among law enforcement, U.S. Attorney office, and agency archaeological staffs to assist in future operations against looters and in preparing cases for prosecution of looters. See the article by Knoll in this volume for further details on the looting clearinghouse, LOOT.

Congressional and federal agency activity during recent years has focused substantial attention on efforts to understand the problem better. Although the attention and understanding have improved, much remains to be better understood. The SAA's (1990) report, Save the Past for the Future: Actions for the '90s, lists pages of recommendations for information that is needed to achieve a better understanding of the looting problem.

To more precisely understand looting, agency archaeologist and law enforcement officials are developing more focused studies of this activity and its results. In southwest Utah the several federal and state offices are cooperating on such a study (Wylie and Nagel 1989). In Arizona, at the Tonto National Forest, a similar project is getting underway (Scott Wood, personal communication).

Combating the Problem

The agency statistical and clearinghouse information was quickly put to use, along with quantitative information from the Four Corners area that GAO had compiled in its investigation (General Accounting Office 1987), to improve the legal means of combating looting. The governmentwide data were cited broadly by the House Subcommittee on General Oversight and Investigations of the Committee on Interior and Insular Affairs. The chairman of the Subcommittee, Representative Sam Gejdenson of Connecticut, held an oversight hearing on the theft of Indian artifacts from archaeological sites at Cortez, CO, on October 19, 1987 (House Committee on Interior and Insular Affairs 1988a, b).

The GAO report (1987) made a series of recommendations on how to improve enforcement of ARPA and reduce looting of archaeological sites. The GAO recommendations addressed each of the three topics listed above: better understanding of the problem through improved documentation of looting incidents, better prevention of the problem by improving inventories of archaeological sites so they could be more effectively protected, and better combating of the problem through more attention by law enforcement officials through data analysis and undercover operations. Senators Domenici and Bingaman incorporated several of these recommendations into a bill, S. 1985, that they introduced on December 22, 1987. This bill called upon the Secretaries of Agriculture, Defense, and the Interior and the chairman of the Tennessee Valley Authority to develop plans and a schedule to survey their lands for archaeological sites and to develop documents for reporting looting violations. Senator Domenici already had introduced, on June 3, 1987, a short bill, S. 1314, to reduce the "felony threshold" for ARPA violations from $5000 worth of damage to a $500 damage level. In the House, Representative Gejdenson introduced H.R. 4068, based upon the results of his hearings and the report analyzing them (House Committee on Interior and Insular Affairs 1988a, b, also see Neumann this volume for a discussion of ARPA and the legislative process and Cheek this volume for further discussion of the ARPA amendments).

The House Subcommittee on National Parks and Public Lands, chaired by Representative Bruce F. Vento of Minnesota, held hearings on H.R. 4068 on June 14, 1988. Following the hearings, negotiations between the Subcommittee staff and Representative Gejdenson resulted in an amended version of H.R. 4068 that incorporated the intent of S. 1314 and added a requirement that federal land managers establish programs to increase public awareness of the significance of archaeological resources (House Committee on Interior and Insular Affairs 1988c). This bill was passed by the House on July 26, 1988.

On September 22, 1988, the Senate Subcommittee on Public Lands, National Parks, and Forests held a hearing on S. 1314, S. 1985, and H.R. 4068. At the hearing, representatives of several federal agencies strongly supported the provisions of S. 1314 and H.R. 4068, but pointed out that the requirements in S. 1985 already existed under other federal laws (Senate Committee on Energy and Natural Resources 1988). The Subcommittee reported favorably on S. 1985; it was passed by the Senate on October 11 and by the House on October 13. The Subcommittee also reported favorably on H.R. 4068 with one amendment of the House version. The Senate passed this on October 14. In the last days of the 100th Congress, Representatives Vento and Gejdenson agreed to the Senate amendment to H.R. 4068, which was reconsidered and passed by the House in its amended version on October 19 (Congressional Record 1988).

Congressional action in the 1988 amendments to ARPA reflect an understanding of possible long and short term solutions to the problem of archaeological looting. Short term solutions required some basic improvements in the ability to prosecute under ARPA. The inclusion of the "attempt" wording in the amendments, for example, fixed one immediate technical problem for ARPA. The more serious problem that law enforcement officials were having in establishing a $5,000 damage level in order to obtain a felony conviction was hindering the use of ARPA in prosecuting looters. This was another immediate problem that the 1988 amendments eliminated. Easier felony prosecution of looters on federal and Indian land, indeed, seems to be occurring. Successful prosecutions of looters since the passage of the 1988 amendments in Tennessee's Big South Fork National Recreation Area, California's Lassen National Forest, on Corps of Engineers property near Lewiston in Idaho, and at Bonneville Reservoir in Washington, indicate that U.S. Attorneys have been able to prosecute more effectively.

The National Park Service (NPS) LOOT clearinghouse proved useful to the U.S. Attorney's office in the Lassen National Forest case. NPS provided information about sentences in similar cases to assist the prosecutors in developing recommended sentences to present to judges. NPS was informed by a U.S. Attorney's office that the LOOT information was very helpful in justifying its recommendation to the judge.

Combating the problem has also involved greater efforts in law enforcement by field offices. Congress added $500,000 to the NPS FY 1990 appropriation and $250,000 to the Bureau of Land Management (BLM) FY 1990 budget to fight archaeological looting on their lands. The NPS funds have been used to increase the number of field law enforcement personnel trained in archaeological resource protection (the FLETC 40-hour course), to purchase and install electronic monitoring devices at endangered sites, and for other law enforcement operations. The Administration's proposed FY 1991 budget includes a continuation of the $500,000 for NPS; additional funding for archaeological law enforcement by the BLM is also planned.

National Park Service and Federal Law Enforcement Training Center (FLETC) training courses also have helped. The 12-hour Archeological Protection Training Course was held by the NPS in 13 locations in 1989. Nearly 350 individuals enrolled. Mainly the attendees were from federal agencies (278), but 54 state and tribal officials attended, 3 from Saskatchewan, and 10 individuals from private organizations (also see Waldbauer this volume for further discussion of archaeological resource protection training).

Preventing the Problem

The new sections of ARPA emphasizing federal agency inventory programs, more rigorous reporting of looting violations, and the development of public education programs are designed to address long term needs in fighting looting. Better information about where archaeological resources are located so that they can be protected more efficiently and their condition can be monitored is clearly necessary for more effective resource protection. More comprehensive and detailed reporting of incidents and greater ability to share these data among agencies is needed to improve the effectiveness with which law enforcement personnel can combat looters.

More general awareness through public education is needed to persuade Americans that looting diminishes our common heritage and the legacy that they leave to their children and grandchildren. More public programs are needed to provide Americans who want to "do" archaeology with legitimate opportunities to participate in professionally supervised field, laboratory, and curatorial work. Each of these areas is part of the long term solution to reducing the looting problem. Federal agency archaeology programs will continue to spearhead many of these efforts.

Conclusion

Careful readers will have noted that the descriptions of recent federal actions to fight looting include many references to actions and programs that are ongoing. We have witnessed a series of recent landmarks in the fight against looting. Among these are the GAO report (1987), the congressional action leading to the 1988 ARPA amendments, the development of quantitative data on the problem (e.g., Figure 1), and the publication of the SAA's action plan to fight looting (1990). More important than these achievements, however, is the large number of actions that are underway. These include efforts to better understand looting through closer monitoring of site locations and conditions, more attention by law enforcement officers to discover and apprehend looters through field operations and electronic monitoring, and a wide range of educational efforts by headquarters, regional, state, and local office archaeologist. The looting problem continues, but federal agencies are making progress in efforts to stem the tide.

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