STATEMENT OF CHRISTOPHER KEARNEY, DEPUTY ASSISTANT SECRETARY FOR POLICY, MANAGEMENT AND BUDGET, DEPARTMENT OF THE INTERIOR, BEFORE THE SUBCOMMITTEE ON NATIONAL PARKS, HISTORIC PRESERVATION, AND RECREATION SENATE COMMITTEE ON ENERGY AND NATURAL RESOURCES CONCERNING S. 2598, ENHANCED PROTECTION OF OUR CULTURAL HERITAGE ACT OF 2002

July 23, 2002

Mr. Chairman, thank you for the opportunity to present the Department of the Interior’s views on S. 2598, Enhanced Protection of Our Cultural Heritage Act of 2002. The Department generally supports the enhancement of statutory penalties for cultural resource crimes; however, it is unclear whether this bill will, in all instances, strengthen cultural heritage protection.

S. 2598 would propose to change the statutory penalties for illegal trafficking under the Archaeological Resources Protection Act (ARPA; 16 U.S.C. 470ee), for embezzlement and theft from Indian tribal organizations (18 U.S.C. 1163), and for illegal trafficking in Native American human remains and cultural items under the Native American Graves Protection and Repatriation Act (NAGPRA; 18 U.S.C. 1170).

It is unclear whether S. 2598 would strengthen ARPA. Currently, ARPA, as read in conjunction with 18 U.S.C. 3571, provides for a graduated system that allows for citation of a Class A misdemeanor as well as a Class D or E felony, depending on the value of the resource and whether or not the offense is a first or subsequent offense. As currently drafted, S. 2598 would eliminate such a graduated system, and instead provide only the option to charge an ARPA offense as a Class C felony. Although increasing maximum fines and imprisonment terms would seem to strengthen ARPA, eliminating the option to charge a crime as a misdemeanor, in fact, may result in fewer prosecutions. U.S. Attorneys Offices may be reluctant to prosecute a case if the defendant’s conduct was not so egregious as to normally warrant felony prosecution. Similarly, juries may be reluctant to hold a defendant responsible if a felony conviction appears overly harsh in a particular case. Thus, the Department supports strengthening the maximum penalties, while retaining a graduated system that will provide the U.S. Attorneys Office with the discretion to charge a defendant with an offense that more appropriately fits the conduct involved. In addition, it is unclear what type of violations the ARPA provision in S. 2598 intends to address. Although the heading appears to apply only to illegal trafficking under ARPA, the subsection amended would actually cover other crimes under ARPA as well. We would like an opportunity to further review the bill and to work with the Committee and the U.S. Department of Justice to craft appropriate language that would more clearly accomplish our mutual goals.

Earlier this year, the Department expressed its support for the establishment of a sentencing guideline for the protection of cultural heritage resources. After a two-year review, the United States Sentencing Commission had found that existing sentencing guidelines inadequately covered a variety of offenses involving the theft of, damage to, destruction of, or illicit trafficking in cultural resources, including national memorials, archeological resources, national parks, and national historic landmarks. Because individuals, communities, and nations identify themselves through intellectual, emotional, and spiritual connections to places and objects, the effect of cultural resources crimes sometimes transcends mere monetary considerations. Consequently, the Commission transmitted to Congress on May 1, 2002 a proposed guideline amendment that takes into account the transcendent value of these irreplaceable resources, and punishes in a proportionate way the particular offense characteristics associated with the range of cultural resources crimes. These amendments will take effect on November 1, 2002, unless Congress passes legislation disapproving them.

Though most Americans may think of looting as a crime that takes place during times of civil unrest, the Department has come to know better. Surprisingly, cultural resource crimes occur frequently and have been occurring with increased frequency on our federal lands. One Bureau of Land Management archeologist in Utah estimates that 80 percent of the surface artifacts at one site have disappeared within the last two to three years. We have seen a shift in the type of looter who commits these crimes. Countless magazine and newspaper articles and television shows discussing cultural resources has led to a dramatic drop in offenses committed by “the casual looter,” a recreationist who picks up an artifact while hiking or damages an archeological site. Although this type of theft and damage still occurs, these incidents are uncommon. A more recent trend is the theft and damage of cultural resources by “professional looters,” hard-core looters who sell the resources for monetary gain and often have criminal histories, usually drug-related or violence-related. Professional looters educate themselves about the locations of archeological sites and the kinds of artifacts and grave goods that may be found at those sites. Many of them are technology savy, using Global Positioning Systems (GPS) and conducting extensive computer research to locate specific sites.

In order to maximize the impact of our law enforcement efforts, we have joined forces with other federal agencies to educate law enforcement officers regarding the pervasive criminal activity. Until we are able to completely deter such criminal conduct, we must work hard to use the criminal and civil enforcement tools at our disposal to diminish the looting of our national and Indian treasures. In working closely with the Department of Justice, United States Attorneys, and federal law enforcement officials, we have found that effective prosecutions under ARPA and NAGPRA receive positive publicity and raise the public awareness of the seriousness of these crimes. We believe that such prosecutions can have a positive deterrent effect.

Mr. Chairman, that concludes my statement. I would be pleased to answer any questions you or other members of the Committee may have.