Archeological and Historic Preservation Act (AHPA)
Reproduced from Archaeological Method and Theory: An Encyclopedia, edited by Linda Ellis, Garland Publishing Co., New York and London, 2000.
Francis P. McManamon

This statute also is known as the Archeological Recovery Act and the Moss-Bennett bill, the latter referring to the primary sponsors of the bills in the Senate and House that lead to the act. Its legislative and legal titles are: Public Law 93-291 and 16 U.S.C.469-469c. Passed and signed into law in 1974, this act amended and expanded the Reservoir Salvage Act of 1960. The AHPA required that Federal agencies provide for "...the preservation of historical and archeological data (including relics and specimens) which might otherwise be irreparably lost or destroyed as the result of...any alteration of the terrain caused as a result of any Federal construction project of federally licensed activity or program (Section 1)." This greatly expanded the number and range of Federal agencies that had to take archeological resources into account when executing, funding, or licensing projects. The Reservoir Salvage Act had required such attention only of Federal agencies, mainly the Corps of Engineers and the Bureau of Reclamation, that constructed reservoirs and related structures.

The AHPA built upon the national policy, set out in the Historic Sites Act of 1935, " provide for the preservation of historic American sites, buildings, objects, and antiquities of national significance...". The AHPA expanded the policy by focusing attention on significant resources and data, but does not require that they be shown to be of "national" significance. The connection between the 1935 statute and the AHPA is mentioned explicitly in the first section of the statute.

The statute is in the tradition of "salvage archaeology" as developed extensively in the River Basin Salvage Program from the late 1940s onwards. The impetus for AHPA was the destruction of archaeological sites throughout the country, frequently by actions funded or otherwise supported by Federal agencies, but not covered by the Reservoir Salvage Act, which required archeological salvage as part of dam projects (Davis 1972). The chief archaeological instigators of the statute were Carl Chapman of the University of Missouri and Charles R. McGimsey of the Arkansas Archeological Survey. The aim of the proponents of the act was to require all agencies of the Federal government to undertake archeology as part of their actions that would result in the destruction of archeological sites.

The drafters of the act, however, did not explicitly relate this legislation with the then-developing approach to archeological preservation as part of the wider historic preservation movement. This latter approach, based upon the implementation of the National Historic Preservation Act of 1966 (NHPA), eventually came to emphasize the use of planning, the importance of the National Register of Historic Places for site protection, project review under Section 106 of the NHPA, and the preservation of sites in situ when possible and feasible. It took several years of intense discussion and experimentation to develop regulations and procedures that completely integrated AHPA into the statutory framework yielding the present effective overall archeology and historic preservation program. The most important contribution of AHPA is that it made it clear that all Federal agencies were authorized to fund archeological investigations, reports, and other kinds of activities to mitigate the impacts of their projects on important archeological sites. A second important accomplishment was the pressure brought upon Federal agency managers during the process of lobbying for passage of the bill to meet their archeological responsibilities. Finally, the extensive lobbying efforts by individual archeologists and archeological organizations between 1969 when the bill was first drafted and its passage in 1974 alerted much of the archeological professional and avocational community in the United States to the impact that government actions were having on archeological resources and the importance of keeping alert to public statutes and regulations, government programs, and new legislation (McGimsey 1985).

The statute assigns the Secretary of the Interior with substantial authority to act for the preservation of historical and archeological data and remains. Section 3 allows for the Secretary to assist other Federal agencies and even private organizations or individuals in meeting the historical and archeological preservation requirements under this statute if the project is expected to result in the loss or destruction of significant scientific, historical, or archeological data. Section 4 authorizes the Secretary, upon notification that significant historical or archeological data may be irrevocably lost or destroyed to undertake necessary studies independent of, although with some consultation with, the Federal agency responsible for undertaking, funding, or licensing the project. This aspect of the statute is carried out for the Secretary by the Departmental Consulting Archeologist in two ways. First, through "unanticipated discovery procedures" that can be initiated by agency staff or others when archeological resources are discovered unexpectedly during a Federal undertaking following the completion of Section 106 (of the NHPA) procedures. The procedures are designed to reach a means of avoiding unnecessary damage to significant archeological resources by modification of project design or timely and effective data recovery of threatened remains. Typically, a consensus is sought among the agency archeologist or consultant, agency or project proponents, the State Historic Preservation Officer, Advisory Council for Historic Preservation staff, and the Department of the Interior staff. Agencies that do not wish to use this set of procedures, have the alternative of following those set up as part of the Advisory Council's procedures (36 CFR 800.11).

Section 5 assigns the Secretary several roles in coordinating historical or archeological activities authorized by this statute, including consultation about the ownership and appropriate repositories for artifacts and other remains recovered by investigations conducted under the statute. This is one of the statutory authorities for the government wide regulations for the curation and care of Federal archeological collections and associated records (36 CFR 79). Section 5 also calls for the Secretary to compile a report for Congress on archeological survey and recovery activities authorized under this statute. This particular requirement is one of the bases for the Secretary of the Interior's Report to Congress on Federal Archeological Activities and Programs (e.g., Keel, et al. 1989; McManamon, et al. 1993). The Departmental Consulting Archeologist, National Park Service carries out this reporting requirement for the Secretary.

Section 7 of the statute authorizes Federal agencies responsible for projects to transfer to the Secretary of the Interior funds to assist them in meeting their responsibilities, up to 1% of the total amount authorized for the project. Differing interpretations of this section have lead to a general understanding that it also limited agencies to expenditures for archeological data recovery of 1% of projects' authorized total funding amount. In 1980, Section 208 of Public Law 96-515) provided a means by which agencies could obtain a waiver of the 1% limit with the concurrence of the Secretary of the Interior and the notification of Congress. The Departmental Consulting Archeologist, National Park Service is delegated to carry out the review and concurrence with any 1% waiver requests for the Secretary. Section 7 also authorized specific funding amounts for the use of the Secretary of the Interior to carry out investigations allowed under Sections 3 and 4 of the statute, however, these amounts were not often appropriated and the last year for which they were authorized was Fiscal Year 1983.

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