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Technical Brief 11 Legal Background of Archeological Resources Protection

Published by the DOI Departmental Consulting Archeologist/NPS Archeology Program, National Park Service, Washington, DC, September 1991.


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1. Some of the areas in the Southwest, Pacific Northwest, and Alaska, in particular, cover many hundreds of square miles, over terrain with high levels of inaccessibility.

2. P.L. 96-95, as amended by P.L. 100-555 and 100-588; 16 U.S.C. 470aa-mm. (1988).

3. Duerksen, Christopher J., editor, A Handbook on Historic Preservation Law, The Conservation Foundation and The National Center for Preservation Law, Washington, DC, 1983, p. 193.

4. Ibid., p. 3.

5. The Fifth Amendment to the Constitution specifies the procedural protection in its "taking clause": "nor shall private property be taken for public use, without just compensation."

6. 160 U.S. 6M (1896).

7. 108 Md. 220, 70 A. II 3 (1908)

8. Welch v. Swasey, 214 U.S. 91 (1909).

9. Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). An earlier Supreme Court case, Berman v. Parker, 348 U.S. 26 (1954), gave strong support in dicta to the concept of governmental condemnation action for aesthetic purposes when Justice Douglas wrote: "The values [public welfare] represented are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capitol should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way. Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear... the means by which it will be attained is also for Congress to determine" (348 U.S. 26, p. 33). However, Berman dealt with local historic District of Columbia ordinances and recognized that the ordinance in question considered aesthetic values as one of many criteria encompassed by the term "public welfare." The Penn Central decision made it clear that individual landmarks as well as historic districts could be protected. Justice Brennan, writing for the Majority, stated: "[H]istoric conservation is but one aspect of the much larger problem, basically an environmental one, of enhancing--or perhaps developing for the first time--the quality of life for people. New York City, responding to similar concerns and acting pursuant to a New York State Enabling Act, adopted its Landmarks Preservation Law in 1965... The New York City law is typical of many urban landmark laws in that its primary method of achieving its goals is not by acquisitions of historic properties, but rather by involving public entities in land-use decisions affecting these properties and providing services, standards, controls, and incentives that will encourage preservation by private owners and users" [438 U.S. 108-111 (1977)]. The court concluded that "the restrictions imposed are substantially related to the promotion of the general welfare and not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper, but also other properties" [438 U S. 138 (1977)].

10. P.L. 59-209, 16 U.S.C. 431-433 (1906). The historical background of this law is the topic of The Antiquities Act of 1906, by Ronald F. Lee, National Park Service, Washington, DC, 1970 (NTIS order number PB284061). See also Hal Rothman, Preserving Different Pasts: The American National Monuments, University of Illinois Press, Chicago, IL, 1989.

11. Section 432 of the Antiquities Act provides that permits will be issued for examinations, excavations and gatherings of objects when such activities are undertaken "for the benefit of reputable museums, universities, colleges, or other recognized scientific or educational institutions, with a view to increasing the knowledge of such objects, and that the gatherings shall be made for permanent preservation in public museums." Currently, most Federal agency permits are issued under the authority of ARPA.

12. Maximum fine of $500 or 90 days in prison, or both. Ibid., Sec. 1.

13. 16 U.S.C. 431, section 2.

14. P.L. 74-292, 16 U.S.C. 461-467 (1935).

15. Regulations for the National Historic Landmarks Program are found at 36 CFR Part 65.

16. P.L. 89-665, 16 U.S.C. 470-470t (1966). Those responsible for Federal historic preservation programs and projects are to conduct them according to the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation, September 29, 1983 (48 F.R. 44716-44742).

17. Ibid., page 336 C.F.R. Part 60.

18. 36 C.F.R. Part 800.

19. 36 C.F.R. Part 65.

20. 36 C.F.R. Part 61.

21. 36 C.F.R. Part 60, in conjunction with Exec. Order No. 11593, Protection and Enhancement of the Cultural Environment, May 13, 1971 (36 F.R. 8921), implements the necessary cooperation between State and Federal agencies to inventory and ensure the preservation of non-federally owned "sites, structures, and objects of historical, architectural, or archeological significance."

22. 36 C.F.R. Part 800 includes the regulations published by the Advisory Council on Historic Preservation to implement Section 106 of NHPA. Federal "undertakings" range from construction, rehabilitation, and repair projects to transfers or demolition of Federal properties. Assessments result in one of three determinations: (a) no effect; (b) no adverse effect, i.e., one or more historic properties will be affected, but the historic qualities that make them significant will not be harmed; or (c) adverse effect, i.e., the undertaking will cause harm to one or more historic properties. See the Advisory Council on Historic Preservation publication: Fact Sheet: Working with Section 106, Washington, DC, revised September, 1988, pp. 3-4. The basic steps to arrive at a determination are: (1) identification and evaluation of historic properties, with the possibility of further studies to evaluate places that may have been considered eligible for inclusion in the National Register but were not so registered; (2) assessment of the effects that the Federal undertaking may have on the identified properties; (3) consultation on adverse effects with the SHPO, Indian Tribes, property owners, and others resulting in an agreement outlining measures to reduce, avoid, or mitigate any adverse effect; (4) a period of time for comment by the Advisory Council on Historic Preservation; and (5) implementation of the particular Federal project under the terms of the agreement. If there is a memorandum of agreement (MOA) developed during Step 3 of the Section 106 process, ACHP may review and accept it, request changes, or decide to issue written comments. If previously unknown archeological remains are discovered after the project has begun, the Federal agency may choose to re-start the Section 106 process or notify the Secretary of the Interior according to Section 4(a) of P.L. 93-291.

23. P.L. 95-515 These amendments codify the requirement that Federal agencies assume the responsibilities for preservation of the historic properties, including the inventory and evaluation of archeological sites that are owned or controlled by them. Appearing as Section 110, this requirement is to ensure that historic preservation is fully integrated into the ongoing programs and missions of federal agencies and to ensure that they exercise caution so that their activities do not destroy uninventoried sites. Section 110 guidelines are located at 53 F.R. 4727-4746 (February 17, 1988).

24. 36 F.R. 8921 (1971), reprinted in 16 U.S.C. 470h-2 (Supp. IV 1980).

25. This settles the question of whether private interests could be required to pay costs of protecting archeological or historical resources that would otherwise be destroyed by their activities.

26. P.L. 86-523, as amended by P.L. 93-291; 16 U.S.C. 469-469c (1974).

27. The NHPA (Note 26) also authorizes project and project planning funds to be used in this manner. A Federal agency may exceed the 1 percent limitation with the concurrence of the Secretary of the Interior, which is based upon a review by Interior's Departmental Consulting Archeologist.

28. P.L. 96-95, 16 U.S.C. 470aa-ll (1979).

29. P.L. 100-555, approved October 28, 1988; P.L. 100-588, approved November 3, 1988; 16 U.S.C. 470aa-mm.

30. 43 C.F.R. Part 7, Department of the Interior; 36 C.F.R. Part 296, Department of Agriculture; 18 C.F.R. Part 1312, Tennessee Valley Authority; 32 C.F.R. Part 229, Department of Defense.

31. Neither ARPA itself nor its implementing regulations provide precise definitions of "historic" and "prehistoric." Rather, the emphasis is on the statutory definition of "archaeological resource," which means "any material remains of human life or activities which are of archaeological interest [and] at least 100 years of age." "Archaeological interest" is defined in the uniform regulations as "capable of providing scientific or humanistic understandings of past human behavior, cultural adaptation, and related topics"; and "material remains" is defined as "physical evidence of human habitation, occupation, use, or activity, including the site, location, or context in which such evidence is situated." There follows an extensive list of classes of material remains, which will be considered archeological resources, but it should be understood that the list is not all-inclusive. 18 C.F.R. Part 1312.3 (1984).

32. 16 U.S.C. 470ee(d).

33. 18 C.F.R. Part 1312.4 and 1312.15 (1984).

34. 16 U.S.C. 470ff-gg.

35. For a state-by-state analysis of alternative statutes see Appendix 1.

36. Although there is considerable documentation in some Federal agency files, e.g., NPS and USDA Forest Service records, as to Antiquities Act violations, the citations for those violations appear to be the exception rather than the norm. In fact, it is not clear as to how the various agencies have coordinated their activities in order to enforce the Antiquities Act, and there is some confusion as to what has actually constituted a violation. See the NPS Antiquities Act files, W34, 1949 - 1981, with accompanying correspondence. Thus, a legislative objective for ARPA was to provide improved enforcement authority.

For an anecdotal, yet thorough discussion of ARPA in legislative process, see Janet L. Friedman, "A Drama in Three Acts," and Laura L. Beaty, "ARPA Enacted: The Legislative Process," both in an edition of American Archeology, devoted to "A History of the Archeological Resources Protection Act: Law and Regulations," Vol 5, No.2, 1985, pp. 82 and 90.

Final Uniform Regulations were issued at 43 C.F.R. Part 7 (Department of the Interior), 36 C.F.R. Part 296 (Department of Agriculture), 18 C.F.R. Part 1312 (Tennessee Valley Authority), and 32 C.F.R. Part 229 (Department of Defense), first published at 49 F.R. 1017-1034 (1984); Supplemental Regulations at 52 F.R. 9165-9170 (Department of the Interior) (1987); and amendments to the uniform regulations at 52 F.R. 47720-4722 (1987).

37. P.L. l00-555 and P.L. 100-588 (1988).

38. See, generally: CRM Bulletin, Vol. 11, Special Issue: Archeology and the Federal Government, compiled by George S. Smith, Francis P. McManamon, Ronald D. Anzalone, James W. Hand, and James C. Maxon, National Park Service, Washington, DC, 1988; Saving the Past for the Future, Actions for the 90s: Final Report, Taos Working Conference on Preventing Archaeological Looting and Vandalism, Society for American Archaeology, Office of Government Relations, Washington, DC, 1990; and Federal Archeology Report, Vol. 3, No. 2, p. 1. National Strategy for Federal Archeology, Secretary of the Interior, 1990.

39. P L. 89-670, 419 U.S.C. 1651-1659 (1976).

40. The DOTA Section on Preservation of Public Areas [49 U.S.C. 1653(f)] does not specifically define "historic site," but in Stop H-3 Association v. Coleman [(1976, CA9 Hawaii) 533 F2d 434, denied 429 US 999, 97 S. Ct. 526, 50 L. Ed 2d 610], the Court held that the determination made by the Secretary of the Interior that a site "may be eligible for inclusion in the National Register of Historic Places" was sufficient to establish historic significance so as to have the site come under the mandates of 49 U.S.C. 1653(f) and 23 U.S.C. 138. Section 1653(f) requires that the Secretary of Transportation "shall cooperate and consult with the Secretaries of Interior, Housing and Urban Development and Agriculture, and with the States in developing transportation plans and programs that include measures to maintain or enhance the natural beauty of the lands traversed... with the stipulation that the Secretary of Transportation not approve programs which will require the use of any publicly owned land from ... an historic site of national, State or local significance."

41. P.L. 91-190, 42 U.S.C. 43321-4361 (1976).

42. 42 U.S.C.4332(1) of NEPA specifically identifies such considerations for the EIS as "aesthetically and culturally pleasing surroundings...preserv(ation) of important historic, cultural and natural aspects of our national heritage...and an approach to the maximum attainable recycling of depletable resources."

43. Ely v. Velde, 451 F. 2d 1130 (4th Cir. 1971). See also Stop H-3 v. Brinegar, 389 F, Supp. 1102, 1110 (D. Hawaii 1974); Save the Courthouse v. Lynn, 408 F. Supp. 1323, 1340 (S.D.N.Y. 1975).

44. P.L. 95-341 (1978). Applicable regulations promulgated pursuant to Section 10(a) are located at 43 C.F.R. Part 7.7 and 7.35, regarding ARPA permits. Specific details regarding consultation, permits, and notifications to Indian Tribes are located at 25 C.F.R. Part 262, Protection of Archaeological Resources, Bureau of Indian Affairs. These regulations were proposed on January 25, 1990 (55 F.R. 2580-2583) and are expected to be published in final in 1991.

45. P.L. 89-508, 80 Stat. 309, 4 C.F.R. Part 2.

46. For a detailed treatment of site damage assessment see: D. Lear, "Civil Responsibilities Under the Federal Collections Act of 1966," background paper in Cultural Resources Law Enforcement, compiled by P. Davis and D. Green, Second Edition, Forest Service, Southwestern Region, Albuquerque, NM. 1981; also, H. Christensen, K. Mabery, M. McAllister, and D. McCormick, "Cultural Resources Protection: A Predictive Framework for Identifying Site Vulnerability, Protection Priorities, and Effective Protection Strategies," Symposium Proceedings, Tools to Manage the Past, edited by J. Tainter and R. Hamre, May 2-6, 1988, Grand Canyon, AZ, pp. 68-80; also Linda F. Carnes, Roy S. Dickens, Jr., Linda France, and Ann Long, Cost Analysis of Archeological Activities at Eight Southeastern Sites, National Park Service, Washington, DC, 1986. Regulations for determinations of archeological or commercial value and cost of restoration and repair in penalties assessments for violations of ARPA are located at 43 C.F.R. Part 7.14.

47. Act, March 3, 1875, c. 144 Section 2, 18 Stat. 99; amendments: P.L. 93-203, Title VII Section 711(b), [formerly Title VI, Section 611(b)], Dec. 28, 1973; 87 Stat. 882, renumbered P.L. 93-567, Title I Section 101, Dec. 31, 1974, 88 Stat. 1845, added item 665.

48. See United States v. Cowan (D. Az. November, 1987).

49. The LOOT Clearinghouse provides case reports relevant to this statute. 18 U.S.C. 1632 also provides penalties for those who aid and abet activities covered under 18 U.S.C. 1631.

50. Statutes such as these do not contain language specifying that artifacts must be found on the property; the language simply authorizes the State "by gift or purchase" to acquire private land that is deemed to be of historic significance. See, for example: Alaska c. 35, s. 41.35.060; or N.M. 18-6-6D and 18-6-10C.

51. A.R.S. 41-865 and A.R.S. 41-866 (effective July 5, 1990). Amendments also were made to the existing public health statutes governing disinterments of dead bodies to harmonize existing law with the new laws (A.R.S. 36-861, effective July 5, 1990).

52. The annual report to Congress on the Federal archeology program is based upon Federal agency responses to a questionnaire distributed at the end of each fiscal year. The most recent publication, Federal Archeology: The Current Program (Department of the Interior, Washington, DC. 1989 GPO order number S/ N 024-005-010-572), covers activities in fiscal years 1985 and 1986. A draft report, Federal Archeology: 1987 Activities and Results, covering activities through fiscal year 1987 is nearing completion. See Ch. 5, p.2. Statistics for subsequent years have been compiled for use in this Technical Brief.

53. "Four Corners" refers to the place where the State lines of New Mexico, Utah, Colorado, and Arizona intersect. It is an area rich in prehistoric sites from the archeological periods known as Pueblo I, II, and III. Included in these kinds of sites are National Park Service units such as Mesa Verde and Chaco Canyon.

54. Carol A. Bassett, "The Culture Thieves", Science '86, July, August, 1986, p.22. See Problems Protecting and Preserving Federal Archeological Resources, General Accounting Office Report GAO/ RCED-88-3, Washington, DC, 1988; and the legislative history for the 1988 amendments to ARPA, House Reports No. 100-791, Pt. 1 (Committee on Interior and Insular Affairs) and Senate Reports Nos. 100-566 and 100-569 (Committee on Energy and Natural Resources).

55. Federal Archeology: The Current Program, Ch. 5, p. 30 (1989), and the draft report for fiscal year 1987, Ch. 5, pp 2-3.

56. Examples of such authorities are State statutes for trespass or cultural properties protection Statutes, Federal criminal statutes such as 18 U.S.C. 1361, Damage to Government Property, or National Park Service and USDA Forest Service regulations such as 36 C.F.R Part 2.1(a)(1)(ii), taking of potsherds from public land, or 36 C.F.R. Part 2. 10(B)(10), camping outside a designated area.

57. In total, the Forest Service, Bureau of Land Management, Fish and Wildlife Service, and National Park Service manage nearly 700 million acres of Federal land.

58. Note 54, page 33.

59. United States v. Jacques, CR 83-129-FR (D. Or., 1983), lasting three years. See also, the Channel Islands case listed in the LOOT clearinghouse that began in 1987 and involved more than 20 defendants (See Note 78).

60. Authority for the annual report is provided by the Reservoir Salvage Act of 1960 (P.L. 86-523; 74 Stat. 220, 221; 16 U.S.C. 469) as amended by the Archeological and Historic Preservation Act of 1974 (P.L. 93-291; 88 Stat. 174; 16 U.S.C. 469). Under this Act the Secretary of the Interior is to prepare and submit an annual report to the Congress each fiscal year on the projects, results and costs undertaken in the Federal archeology program. In addition, the National Historic Preservation Act of 1966 (P.L. 89-665; 80 Stat. 915; 16 U.S.C. 470) as amended (P.L. 91-243; P.L. 93-54. P.L. 94-422, P.L. 94-458, P.L. 96-199, P.L. 96-244, P.L. 96-515) requires Federal agencies, to the extent permitted by law and within available funds, to provide information, suggestions, estimates, and statistics to further the purposes of the Act. The report also is mandated by the Federal Land Policy and Management Act of 1976 (P.L. 94-579; 90 Stat. 2743; 43 U.S.C. 1701), which is the primary basis for managing cultural resources on the public lands. Finally, ARPA directs the Secretary of the Interior to provide a separate component of the annual report that deals specifically with its provisions, including the permitted and unauthorized uses of archeological resources on public lands.

61. Briefing Statement, NPS Archeological Assistance Division, January 27, 1989, page 3.

62. The regulations were adopted in February 1984, (See Notes 29 and 30).

63. 16 U.S.C. 470ee amended at 102 Stat. 2983 (Nov. 3, 1988).

64. Ibid.

65. 16 U.S.C. 470mm, adding Section 14 to AP.PA.

66. Prior to the issuance of ARPA uniform regulations, this section to some extent created a due process problem since there were no mechanisms for the issuance of permits. Therefore, agencies published notices in the Federal Register clarifying that permits pending ARPA regulations would continue to be processed under the applicable sections of the Antiquities Act. Such publication also served as a reminder that ARPA neither amended nor replaced the Antiquities Act. See D. Green, "Prosecuting Under ARPA: What to Do Until the Regulations Arrive," in Cultural Resources Law Enforcement, p. 64, note 49.

67. This fourth proof defines the line between a felony and a misdemeanor, the later involving damages of $500 or less. Felony convictions for ARPA violations through 1984 carry a fine of up to $20,000 and two years in prison, or both, for the first offense. After 1984 the Comprehensive Crime Control Act (18 U.S.C. 3623) standardized maximum penalty amounts, allowing up to $100,000 for the first misdemeanor offense, and up to $250,000 for the first felony offense committed by individuals. The respective amounts are doubled when an organization, rather than an individual, has committed the violation. Although ARPA exempts arrowheads from surface collection, such collection is still in violation of the Antiquities Act, except in the Ninth Circuit under Diaz, as well as under the Theft of Government Property statute, 18 U.S.C. 641, (See Note 50).

68. In this case, Shumway was found not guilty as to the two felony ARPA counts, but guilty as to destruction of government property.

69. K. Jones and Guevara were sentenced each to 1 year in jail and a $1,000 fine; while T. Jones received an 18-month jail sentence and $1,000 fine.

70. Civil fines based upon site damage assessments were levied in Brady (See page 7), but the $38,479.42 was declared uncollectible in 1982. Collection of another civil fine of $18,216 for damage to 11 separate areas in a 1981 case (See LOOT Clearinghouse) was attempted under the Federal Collections Act and declared uncollectible in 1984.

71. See LOOT Clearinghouse case, November, 1981.

72. P. Nickens, S. Larralde, and G. Tucker, Jr. "A Survey of Vandalism to Archaeological Resources in Southwestern Colorado," Bureau of Land Management Cultural Resources Series, No. 11, Denver, Colorado, 1981, pp. 12, 24.

73. These figures are misleading to some extent, since in one case prosecuted under another statute there were a total of 20 defendants. See LOOT Clearinghouse report on the Channel Islands shipwreck case prosecuted under NOAA regulations and the California Penal Code (See Note 76).

74. In the Lower Suwanee digging case (November 5, 1987, LOOT Clearinghouse report) the judge reduced the $200 civil fine on each defendant to $60 "because they didn't find anything."

75. St. Francis National Forest case (January, 1987, LOOT Clearinghouse report).

76. "Shipwreck Looters Fined $132,000 in History's Biggest Case," Channel Islands National Marine Sanctuary Press Release, October 25, 1990. Altogether in this case, 20 individuals were charged with 52 civil and criminal violations of Federal and State laws. The largest single civil fine was $100,000 assessed against the dive boat operator for violating National Oceanic and Atmospheric Administration regulations regarding historic shipwrecks within a National Marine Sanctuary.

77. Lack of access aside, some known offenders will not be deterred. Convicted looters and vandals simply move their activities into other States.

78. It is important to note that the second jury trial felony conviction under ARPA occurred in 1990. The "Dry Hill" case involved 10 defendants who looted an unrecorded site in the Cherokee National Forest that contained burial remains of the Eastern Band of the Cherokee. The case resulted in 10 felony convictions, 4 misdemeanor criminal convictions, $3,290.62 assessed in lines, $11,500 ordered in restitution, and prison sentences varying from 6 months to 22 months for some of the defendants. Additional penalties included probationary periods of up to 5 years, with 3 defendants required to provide 300 hours each in community service. All defendants were banned from the National Forest for their respective probationary periods. [United States v. Charlton No. 290-73, E.D. Tennessee, October 1990].

79. Among the agencies required to respond are the Bureau of Land Management, Bureau of Reclamation, Fish and Wildlife Service, Mineral Management Service, National Park Service, Territorial and Insular Affairs, Department of Justice, Department of Labor, National Air and Space Administration, National Capitol Planning Commission, Pennsylvania Avenue Development Corporation, Tennessee Valley Authority, Federal Aviation Administration, Federal Railroad Administration, Urban Mass Transit Administration, Veterans Administration, Department of Education, Department of Energy, Federal Energy Regulatory Commission, Environmental Protection Agency, Federal Communications Commission, General Services Administration, Department of Health and Human Services, Department of Housing and Urban Development, Bureau of Indian Affairs, Forest Service, Rural Electrification Administration, Soil Conservation Service, Economic Development Administration, the Army, Navy, and Air Force, and the Army Corps of Engineers.

80. Although the Department of justice audits the 192 United States Attorneys on a monthly basis, there is no section of the audit that references cultural resources crimes.

81. Sometimes a group of LOOT forms accompany the annual report questionnaire, but often these are sent separately to NPS throughout the year.

82. LOOT Clearinghouse, Preliminary Draft prepared for the Society for American Archaeology Anti-Looting Working Conference, Taos, New Mexico, May 7-12, 1989, by the NPS Departmental Consulting Archeologist, Archeological Assistance Division, Washington, DC.

83. The 1988 report on the annual questionnaire from TVA states the frustration: "We have hundreds of sites being looted. We are documenting the destruction, but we are seldom able to document the individuals doing the digging, or how many acts of digging have produced the appalling conditions we document."

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