**PROTECTION OF ARCHAEOLOGICAL RESOURCES ON PUBLIC LANDS:** **HISTORY OF
THE ARCHAEOLOGICAL RESOURCES PROTECTION ACT**

Annetta L. Cheek

**Introduction**

Throughout the 19th century, the inquisitiveness of the American spirit
fostered an interest in the prehistoric ruins and objects the pioneers
discovered as they moved westward. Late in the century, public interest
in the art, history, and prehistory of North America reached a fevered
peak, stimulated by the discovery of the major ruins of the Southwest.
As the century drew to a close, it seemed that our very enthusiasm was
going to destroy the objects of our interest, as more and more ruins
were stripped and their contents hauled East to grace the walls of
museums and private collectors.

A growing concern over this phenomenon at the turn of the century
resulted in pressure being brought on Congress to pass legislation
protecting antiquities on public and private land. As a result, Congress
passed the Antiquities Act of 1906 (16 USC 431-433). Not only did this
Act protect \"any historic or prehistoric ruinor monument, or object of
antiquity\" located on public lands, it provided authority for the
President to withdraw lands from the public domain and set them aside as
national monuments, and to accept land relinquished for such purposes by
private landowners.

This Act remained the keystone of our efforts to protect archaeological
resources on public lands until 1974. As far as we know, the first legal
challenge to the Act was the case of [United States v.
Diaz]{.underline}, decided in the Ninth Circuit Court of Appeals, which
covers many of the Western states. In that case, Diaz, had been
convicted for a violation of the Act for stealing a number of recent
religious objects from a cave in the San Carlos Indian Reservation. In
1974, the Appeals Court overturned the lower court\'s conviction stating
that the terms \"object of antiquity,\" \"ruins\" and \"monuments\" were
vague, and on that basis found the Act to be unconstitutional.

While several convictions were obtained under the Act over the next few
years (Collins and Green 1978), the [Diaz]{.underline} case rendered the
Act useless in the Ninth Circuit. In 1977, a case in New Mexico resulted
in a U.S. Magistrate\'s decision that the Act was unconstitutional.
Furthermore, it was becoming apparent that, with the escalating prices
for prehistoric artifacts, particularly from the Southwest, the minimal
penalty provisions of the Antiquities Act were no longer sufficient
deterrents to looting and vandalism. In addition the \$500 fine
associated with the Antiquities Act, although close to the average
yearly salary for Americans in 1906, is not the deterrent it was in the
early 20th century.

**The Archaeological Resources Protection Act of 1979**

Several individual archaeologists decided to work for new legislation to
supplement or replace the Antiquities Act (Collins and Michel 1985). The
support of the Society for American Archaeology was solicited.
Congressman Morris Udall of Arizona, Chairman of the House Interior
Committee, which had jurisdiction over any such legislation, was
contacted; he promised support for a strong bill. In 1977, initial
contact with the Department of the Interior revealed that Interior was
developing draft legislation. After a frustrating wait of many months,
however, Interior\'s bill was revealed to contain little more than minor
revisions to the Antiquities Act that would resolve the definitional
problems revealed by [Diaz]{.underline}, but would do little else.

As a result, a small group of archaeologists resolved to draft their own
bill. They intended the bill to be a comprehensive reform of the
provisions for protecting publicly owned archaeological resources. They
wanted to prohibit looting as well as selling, purchasing, bartering,
trafficking in, transporting, or receiving looted artifacts from federal
lands. Trafficking in interstate commerce was also banned if the
violation of a state or local law was involved. Greater criminal
penalties were included, and a system of civil penalties was included to
cover damages and repair of the damage done to sites.

Initially the archaeological community intended to continue to work
through Interior, and a draft bill was provided to the Department and to
Congressman Udall in April, 1978. At about the same time, U.S. District
Judge William Copple of Phoenix ruled that the government could not
prosecute three men who had been caught looting a prehistoric site on a
national forest in Arizona. The government, knowing that the Antiquities
Act had been declared unconstitutional in that jurisdiction, sought to
prosecute the men for theft of government property. The judge ruled that
the theft of government property charge was inappropriate and that the
men should be prosecuted under the Antiquities Act. But, since that Act
was unconstitutional they could not be prosecuted at all. The judge
himself suggested that Congress should correct the situation with
legislation.

This decision made the situation even more desperate. After waiting
throughout the summer for Interior to produce a viable bill, the
archaeologists decided to try to get their own bill introduced. The
Society for American Archaeology, for the first time in its history,
agreed to commit funds for a professional lobbying effort in Congress. A
bill was introduced on February 1, 1979.

Over the next nine months, considerable effort was expended working with
Congress (the role of Congress is discussed further in Domenici and
Nuemann this volume) and with various special interest groups to hammer
out a bill that could be passed. A number of controversial issues
developed. The issue of \"arrowheads\" was one of the most difficult,
due to concern about making surface collecting by casual collectors
illegal (Beaty 1985:93-4). Eventually, compromises on the remaining
issues were worked out. The Archaeological Resources Protection Act of
1979 (16 USC 470 aa-ll) (ARPA) was signed into law by President Carter
on October 31, 1979. The Act was considered a great victory for
archaeology, and was to be a major tool in anti-looting and vandalism
efforts.

ARPA contained a number of important new provisions. In addition to
imposing new and severe penalties for excavation or destruction of
archaeological resources, it imposed the same penalties for the
unauthorized \"removal\" of such resources and their sale or purchase.
It even imposed penalties on interstate commerce in such artifacts when
removed in violation of ARPA or in violation of [any]{.underline} state
or local ordinance. This last provision essentially makes it an ARPA
violation to transport across state lines any artifacts stolen from a
state park or even private land. ARPA also provides for the forfeiture
of any vehicles or other equipment involved in a violation - a provision
that has proven an important tool in the hands of federal prosecutors.
The Act refined and extended the permitting provisions of the
Antiquities Act. It also set up a system of civil penalties for minor
violations. Clearly, Congress intended these penalties to be an
easy-to-use tool to deter minor violators of the Act (Senate Committee
on Energy and Natural Resources 1979). However, federal agencies do not
seem to be using these tools to the extent Congress intended.

**Uniform Regulations**

As soon as ARPA was passed, federal agency personnel began using it in
the battle against vandalism and looting. It quickly became apparent
that without the uniform regulations called for in the Act,
implementation would be difficult if not impossible. Many problems
during the development of the statute were \"solved\" by deferring to
the regulations. Many critical definitions and processes were not
specified in the Act.

The job facing the rule writers was a mammoth one. The Act called for
\"Uniform Regulations\"; this meant that all four of the Executive
Branch units named in the Act - the Departments of Interior,
Agriculture, and Defense, and the Tennessee Valley Authority (TVA) - had
to agree on the text of the regulations. The individual agencies
involved (including the National Park Service, the Bureau of Land
Management, the Fish and Wildlife Service, the Army Corps of Engineers,
the TVA, and the Forest Service) represented a great diversity of
interests in and commitments to archaeological resources.

Even though the agencies began meeting to develop regulations before the
Act was passed, it was four and a half years after the Act became law
that the regulations were adopted (compare this to the regulations
implementing the Antiquities Act of 1906, which were promulgated six
months after passage). How did this delay happen?

For anyone who has not worked within the environment of the Federal
Government on a project as complex as uniform regulations, it is hard to
imagine what transpires. In the case of these regulations, an overly
large and ever changing group of subject area specialists from agencies
with different and often competing interests met to try and accomplish
the task. Membership shifted, old issues had to be revisited, and
critical members of the overall federal resource protection team - law
enforcement specialists - were not represented (Friedman 1985). After an
initial flurry of activity, staff from the Department of the Interior,
which had the lead, consistently failed to meet designated deadlines.

Early in 1980, it was announced that public hearings would be held to
solicit the views of concerned citizens on the direction the regulations
should take and what issues needed to be considered. This public
participation process, which is now a required component of regulatory
development provided valuable insight into the views of private citizens
but at the same time raised issues which required extensive and
time-consuming work to resolve.

A number of major issues were highlighted by the public hearing process.
Most significantly, the definition of archaeological resources presented
a thorny problem. This section of the regulations drew the most public
comment and regulators had to balance the apparent intent of Congress
that a \"laundry list\" of such resources be developed with the need to
ensure that currently unnamed resources would be protected. Ultimately,
a broad definition that includes specific but noninclusive examples was
developed (Friedman 1985:97). Other issues also were raised that bogged
down the regulatory effort.

In March, 1982, the Director of the Bureau of Land Management
recommended to the Secretary of the Interior that the regulatory task
force be disbanded because of the lack of progress. Instead, the
Department changed the personnel involved and placed the Departmental
Consulting Archaeologist in control of the group (Keel and Cheek
1985:101).

With the change in personnel final drafting of the regulations began. By
June, the document was completed, and a host of other requirements were
met over the next several months. By March, 1983, all other agencies in
the Department of the Interior completed their review and the rules were
sent to the other two Departments and the TVA. By May, Defense,
Agriculture, and TVA gave their approval. The last stop was the Office
of Management and Budget, which had 10 days to review the rule and 60
days to review the permit application. Then, after one final
departmental review the rules went to the Federal Register for final
publication on September 26, 1983.

Those of us who were working on the rules at the time breathed a great
sigh of relief when we delivered the rules to the Federal Register.
Bennie Keel and I had not been involved in the early development of the
rules and had missed the opportunity to discuss the major technical and
administrative issues that had to be resolved. However, Keel and I had
the \"pleasure\" of shepherding the rules through their last 18 months
of bureaucratic review, changing \"therefore\" to \"therefor\" and
making other such significant changes. We were personally delighted to
see the last of the document.

The next day, disaster struck. The Federal Register called and said the
rules were in the wrong format. We had used a regulation number in the
National Park Service\'s regulation system. The Federal Register had
recently decided that uniform regulations issued by several agencies had
to be promulgated separately by each agency, and had to have a
regulation number specific to each agency. So, back we went to reformat
the whole thing, break it out into four separate but identical packages,
call the other Departments and explain the situation and get new numbers
assigned. Of course, the final package had to go through the
bureaucratic \"surname process\" in each department all over again, and
ultimately signed by the head of the department. All in all, this
process took three more months. The new final package went back to the
Federal Register and was published on January 6, 1984. Because of legal
procedural requirements, they could not go into effect for 30 days,
until February 6, 1984 - four and a half years after ARPA was passed. At
last, federal managers had the regulatory tools they needed to enforce
ARPA.

**ARPA Amendments**

In 1988, two amendments to ARPA were enacted (see Domenici and Nuemann
this volume for additional discussion of the ARPA amendments). Although
it is too early to determine the extent to which these amendments will
impact federal programs, the provisions corrected weaknesses in ARPA
that were identified by the Congress, the Executive Branch, the law
enforcement community, and the profession as needing resolution.

The first amendment, enacted October 28, 1988, requires the four
agencies who were named as having principal responsibilities under
ARPA - the Departments of Interior, Agriculture, and Defense and the
TVA - to develop plans for surveying lands under their control. The
surveys are to determine the nature and extent of archaeological
resources on those lands. This requirement reflects the concern that the
major federal landowners are not being successful in protecting
archaeological resources on their lands, in large part because the exact
nature, extent, and location of those resources are not know. The
amendment further requires those agencies to develop documents for the
reporting of suspected violations of ARPA and to establish when and how
those documents are to be completed.

The second amendment, enacted November 3, 1988, lowers the threshold of
damage done to a site that can result in a felony conviction, large
fine, and imprisonment of two years. As a result, damage of only \$500
can result in severe penalties. This provision reflected the concern of
archaeologists and law enforcement staffs that too much effort was being
spent establishing that the threshold previously listed in ARPA for such
penalties - damage greater than \$5,000 - was exceeded in specific
cases.

The same amendment requires that all federal land managers establish a
public awareness program on the significance of archaeological resources
and the need to protect them. This requirement responds to the growing
awareness among federal managers and resource protection staffs that the
looting and vandalism problem cannot be solved without the active
assistance of a concerned public.

As a result of these amendments, the four principal agencies published
proposed uniform rules on January 29, 1990. These would amend the
uniform regulations to include in the description of prohibited acts to
include [the attempt]{.underline} to remove, deface, etc. archaeological
resources.

Additionally, the Department of the Interior has developed a preliminary
proposed rules that would amend the uniform rules to lower the threshold
of felony violations and to establish public awareness programs and
schedules and plans for archaeological surveys. The draft also provides
for the Secretary of the Interior to report to Congress on public
awareness programs and on agency programs to document violations
(Michele Aubry, personal communication, April 1990).

**The Situation Today**

Clearly, federal agencies have made significant efforts to improve the
protection of archaeological resources on lands they own and manage. The
most recent reasonably accurate and complete data available (National
Park Service 1989) shows, in fiscal years 1985 and 1986, that federal
agencies spent at least \$74,000,000 on archaeological work, surveyed
over 13,000,000 acres, and determined approximately 5600 sites eligible
for inclusion in the National Register of Historic Places. Through about
the same time period, the Bureau of Land Management had surveyed about
7.5 million acres and recorded over 100,000 sites. The Forest Service
had surveyed 18.4 million acres and also recorded over 100,000 sites
(Schalk 1988).

A number of agencies have specifically recognized the importance of
public awareness efforts in their resource protection program through
the initiation of interpretive and educational programs and public
lectures. Training programs for employees and contractors are included
as a routine part of cultural resource management programs by several
agencies. Other agencies encourage the participation of volunteers in
their programs. Archaeological contractors are sometimes required to
prepare articles and slide or video presentations for use in
interpretive programs. Site steward programs have been established in
some areas to enlist private citizens in the task of guarding individual
resources from vandalism and looting (see Hoffman this volume for a
discussion of site stewardship programs).

In addition to numerous area and site specific efforts by federal
agencies, the national spotlight continues to be focused on the issue of
protecting archaeological resources. Both the Senate and the House, as
well as the General Accounting Office, have examined the problem in
recent years (Senate Committee on Energy and Natural Resources 1986;
House Committee on Interior and Insular Affairs 1988; General Accounting
Office 1987).

Despite this attention and the efforts of federal agencies the loss of
publicly owned archeological resources continues at an alarming pace. Of
the approximately 0.8 billion acres of public land, less than 10% has
been surveyed and it is unlikely that a significant portion of the
remainder will be surveyed in the foreseeable future. Looting and
vandalism is clearly continuing almost unabated. In fiscal years 1985
and 1986 (National Park Service 1989:32) there were over 1000 documented
cases - and this is likely the tip of the iceberg. Furthermore, there
was a sharp increase from 1985 to 1986. On the other hand, there were
just 33 arrests and 82 citations for ARPA violations and only 43
convictions; the majority of these occurred in 1985. A recent General
Accounting Office (GAO) report, which focused on the Four Corners area,
reported that commercial looting has not been deterred, and scientific
information continues to be destroyed (GAO 1987:21). The three major
federal land managers in that area - National Park Service, Bureau of
Land Management, and Forest Service - had a total of three people in
fiscal year 1985 whose primary responsibility was the protection of
archaeological resources on over 104 million acres of public lands. The
three agencies had surveyed only about 7% of their lands in that area
and recorded about 136,000 sites. They estimate a total of almost
2,000,000 sites, of which approximately one third have been looted or
vandalized. Often, the sites that are looted or vandalized are those
with varied, stratified deposits, which hold both the greatest amount of
scientific information as well as the most commercially valuable
artifacts.

**Conclusion**

When ARPA was passed, archaeologists expected that the rate of looting
and destruction of our country\'s archaeological heritage would subside.
Unfortunately, this has not proven to be the case. While casual looting
may be on the decline, clearly commercial looting is not, and
archaeological resources on public lands continue to be seriously
endangered.

An article of this scope cannot discuss the possible solutions to this
problem in even a remotely thorough manner. Instead, I\'ll examine a few
individual ideas about what might be done to make some impact on the
problem.

First, it is obvious that passing a law is just the beginning. Agencies
need to be convinced that it is important to enforce the law, that of
the many responsibilities they have, this one should be near the top of
the list. Furthermore, even if they are convinced, they must have
resources to implement those responsibilities. This is something that
both the archaeological profession and the interested public can help
with through lobbying efforts in the Congress. We also need to keep in
close contact with top executive agency management who need to be
educated about the problems - and who need to be convinced that enough
of the public cares so that [they]{.underline} need to care. However, as
LeBlanc points out, this must be a joint effort between professional
archaeologists, grass roots interest groups, professional lobbyists and
not just an effort by archaeologists alone (LeBlanc 1985:16).

Second, a major component of fixing this problem is public education in
the largest sense (see Chapter 4 this volume for discussions of
archaeology and education). This has been the main thrust of the Society
for American Archaeology\'s \"Save the Past for the Future\" project,
jointly sponsored by the Society and a number of cooperating federal
agencies (see Reinburg this volume for a discussion of the \"Save the
Past\" project). By education I do not mean simply presenting school
children with the facts and figures of archaeology. I include educating
federal land managers, federal law enforcement personnel, and everyone
involved in our judicial system. A major problem with obtaining
prosecutions under ARPA has been the reluctance of the judicial
bureaucracy to take on cases of this nature. It is up to the
archeological community to change that. We need to educate our local,
state, and national legislators about the problem and the need for
resources to be [focused]{.underline} on the problem in an effective
way.

Finally, we all need to do whatever we can do locally to help protect
the archaeological resources in our own backyards. Participate in site
steward programs get friends and relatives to do the same. Report any
violations you know about, even if they seem minor.

The passage of ARPA did not achieve all the results we expected.
However, it was, and remains, a major victory. Public awareness of and
concern about the looting problem has increased but the job of
protecting these resources is barely begun. federal agencies simply do
not have the fiscal and personnel resources to do the job, and they
never. We all have to do our part.

**References Cited**

Beaty, L. (1985) ARPA Enacted: The Legislative Process. [American
Archeology]{.underline}, Vol 5, No. 2. Pages 90-94.

Collins, R. B. and D. F. Green (1978) A Proposal to Modernize the
American Antiquities Act. [Science]{.underline}, 202:1055-1059.

Collins, R. B. and M. P. Michel (1985) Preserving the Past: Origins of
the Archaeological Resources Protection Act of 1979. [American
Archeology]{.underline}, Vol. 5, No. 2. Pages 84-89.

Friedman, J. (1985) The Regulations: The Early Years. [American
Archaeology]{.underline}, Vol. 5, No. 2. Pages 94-101.

General Accounting Office (1987) Problems Protecting and Preserving
Federal Archaeology Resources. GAO/RCED-88-3. General Accounting Office,
Washington, D.C.

House Committee on Interior and Insular Affairs (1988) The Destruction
of America\'s Archaeological Heritage: Looting and Vandalism of Indian
Archaeological Sites in the Four Corners States of the Southwest.
Committee Print No. 6. Government Printing Office, Washington, D.C.

Keel, B. C. and A. L. Cheek (1985) The Regulations: The Late Years.
[American Archeology]{.underline}, Vol 5, No. 2. Pages 101-103.

LeBlanc, S. (1985) ARPA: Some Lessons. [American
Archeology]{.underline}, Vol 5, No. 2. Pages 115-117.

National Park Service (1989) Federal Archeology: The Current Program.
National Park Service, Washington, D.C.

Schalk, L. (1988) Looters of the Past: An Enforcement Problem in the
Pacific Northwest. [CRM Bulletin: Archeology and the Federal
Government.]{.underline} Vol 11. Pages 32-34. National Park Service,
Washington, D.C.

Senate Committee on Energy and Natural Resources (1979) Hearing before
the Subcommittee on Parks, Recreation and Renewable Resources of the
Committee on Energy and Natural Resources. Senate Hearing 96-26.

­\-\-\-- (1986) Management of Archeological and Paleontological Resources
on Federal Land. Senate Hearing 99-463. Government Printing Office,
Washington, D.C.