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 Archaeology devoted to "A History of the Archacological
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 CFR. Part 1312 CTennessce Valley Authority), and 32 C.F.R. Part 229 (Department of Defense), first published at 49 F.R. 1017-1034
(4984); Supplemental Regulations at 52 F.R. 9165-9170 (Department of the Interior) (1987); and amendments to the uniform regulations
at $2 F.R. 47720-47722 (1987).

37. P.L. 100-555 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 Archacology, 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, 49 U.S.C. 1651-1659 (1976).

40. The DOTA Section on Preservation of Public Areas [49 U.S.C. 1653()] 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) 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. 4321-4361 (1976).
42. 42U.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.1. 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 arc located at 25 C.F.R. Part 262,
Protection of Archacological Resources, Bureau of Indian Affairs. These regulations were proposed on January 25, 1990 (55 FR.
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, cdited 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 arc 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 NM. 18-6-6D and 186-10C.

51.A.RS. 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).



plicable to cultural resources protection. Use of these
categories was particularly important in the computer
searches because there are no generalized cultural resour-
ces headings under which these laws can be principally
found. Finding these laws depends upon how an in-
dividual State categorizes the nature of the protection or
the type of offense committed. The laws covering
archeological resources protection rarely are codified
under a single heading. Additionally, it is likely that new
laws have been passed in State legislatures and existing
laws may have been re-titled or consolidated since June
1990, the date of this research.

State statutes in force as of July 1990, fall into five
categories that reinforce or complement ARPA (See Fig-
ure 1):

1. Restrictions on sales of antiquities or forgeries (14
States);

2. Laws to discourage activities that damage
archeological resources on private land (11 States);

3. Mirror ARPA statutes, including penalty provisions
G7 States);

4, Penalties for disturbances of marked and unmarked
burial sites (11 States). Eight states have reinterment
statutes, but only two of these also have an
anti-disturbance statute; and

5. Statutes providing for acquisition of real property or
artifacts.°°

An additional seven states had pending legislation for
1989-90 sessions in one or more of the five categories,
with the emphasis of proposed legislation upon marked
and unmarked burial sites. In addition, several States have
statutes providing protection to specific areas, such as
underwater salvage sites (10 States), caves (4 States),
earthworks (2 States), forts (2 States), ghost-towns
(Colorado only), petroglyphs or rock art (3 States), and
State preserves (lowa only).

Many States have statutes that establish State
archeologists, State historical agencies, involvement in
cultural resources issues by Native Americans through
established advisory councils, and State registers of his-
toric places. There ure also statutes that provide for State
cultural resources surveys, regulatory issuance of permits
for field investigations, obligations to report discoveries
that may have historic or prehistoric archeological sig-
nificance, and protection of the confidentiality of site
locations.

Survey of SHPO Resources Protection
Activities

During preliminary research for this Technical Brief it
was determined that, while it was important to under-
stand the regional context of archeological resources
protection at other levels of government, little informa-
tion actually was available about such programs at State
Historic Preservation Offices (SHPO). Therefore, a survey
was conducted between January and August 1990, to
query 59 State Historic Preservation Officers and 14 of
their deputies about a wide range of protection activities.
There were 41 responses (56 %).

The results of the survey show that SHPOs are active in
the following areas (numbers of affirmative SHPO respon-
ses shown in parentheses).

Casework

Some SHPOs have provided assistance in archeological
protection under the Antiquities Act (6) and ARPA (13).
Many SHPOs listed activities within the Section 106 pro-
cedures of NHPA as their primary source of involvement
under Federal law.

Some SHPOs reported assisting with archeological
protection pursuant to a variety of State statutes, includ-
ing theft (4), trespass (5), vandalism (11), site disturban-
ces, including burials and confidentiality of site locations
(17), permit violations (10), sales of forged artifacts (4),
and archeological surveys or salvage excavations on State
lands (1).

Responses from 14 SHPOs documented direct assistance
in 17 archeological protection cases prosecuted between
1985 and 1990, with some of those cases still pending
resolution. Seven of the cases were prosecuted under
ARPA, either alone or in conjunction with other statutes.

SHPO assistance in case preparation has included gather-
ing information or evidence on-site (13), consultation
with attorneys (8) and law enforcement personnel (10),
giving testimony at trials (9) or hearings (3), and participa-
tion in courtmartial proceedings (1).

Legislative and Administrative Assistance

SHPOs reported infrequent participation in legislative
activities. However, such activity by preservationists is
extremely important because cases are often won or lost
on the strength of a statute. One of the most powerful
ways to increase protection of archeological resources is
through implementation of effective State statutes. The
courts are the interpreters of the law, and when there
exists a preservation statute that the court may
appropriately apply, case preparation may be ap-
proached from a much stronger position. For example,
SHPO expertise and input were instrumental in the draft-



Prosecutions under ARPA prior to regulations were lim-
ited because the statute did not designate civil penalties
and also because of the more narrow definitions of “ar-
chaeological resource” provided in ARPA itself. ARPA
felony criminal prosecutions now require four elements
of proof:

(1) that defendant did knowingly excavate, remove,
damage, alter, or deface an archeological resource, or
attempted to do so;

(2) that said resource was located on public or Indian
lands, or obtained illegally and transported across State
lines;

@) that the defendant acted without a permit; and

(4) that the archeological value or commercial value and
cost of restoration and repair exceeded $500.

Despite temporary limitations prior to 1984 due to the
need for implementing regulations, seven prosecutions
under ARPA were instituted during the first few months
after it became law. The ARPA count was usually accom-
panied by a separate count under 18 U.S.C. 1361, De-
struction of Government Property, and the cases were
heard either in U.S. District Court or brought before the
appropriate Federal Magistrate. Representative convic-
tions from these cases include United States v. Palmer
@. Utah, April, 1980), for illegal excavation ($200 fine,
2-year probation, plus $300 fine assessed in lieu of con-
fiscation of a vehicle); United States v. Brady (D. Arizona,
November, 1979), for excavation and damage toa prehis-
toric site (6 months suspended sentence; 3-year proba-
tion); and United States v. Shumway, No. Cr-80-5 W (D.
Utah, November, 1979) for illegal excavation and de-
struction of government property ($750 fines, 3 years
suspended sentence with 3 years probation). In one
early case, the defendants even petitioned for prosecu-
tion under ARPA, although their original offense was
committed prior to ARPA’s enactment. The plea was
granted, and on May 19, 1980, the first sentences under
ARPA’s felony provisions were imposed.

For the period between 1980 and the adoption of ARPA
uniform regulations in 1984 the LOOT clearinghouse
documents 19 additional ARPA prosecutions. The pattern
emerging from the remainder of these pre-regulation
cases shows guilty verdicts by either judge/magistrate or
jury for all but one defendant. Prison sentences were
usually completely suspended, though one defendant did
serve 6 months imprisonment, with supervised proba-
tion of 2 to 3 years being imposed instead of jail time.
Community service hours were imposed on one defen-
dant. Fines were imposed in less than 50 percent of the
cases. Some of the fines were later declared uncollectible
by the Justice Department, and most fines did not reflect
the actual damage amounts presented by the government
after damage assessments and analysis by expert
archeologists.” Lack of ARPA regulations resulted in the
only complete acquittal during this period. In that case,’!

defendants were found not guilty of causing $9,000 in
damages to a rock shelter because it was not clearly
demonstrated that a rock shelter is an archeological
resource.

ARPA uniform and supplementary regulations have clari-
fied uncertainties as to the statute’s application and have
enhanced the prosecutor's ability to cover a wide range
of activities that have resulted in damage to or destruction
of archeological resources. ARPA focuses on those activ-
ities that have been categorized as “predatory or mali-
cious,” which include collecting for personal or
commercial gain and wanton property destruction with
or without commercial or personal motive. Such looting
and vandalism occurs: through digging, also commonly
called “pot-hunting”, and use of heavy machinery; carv-
ing, chipping, scratching, or other general defacement;
surface collection of artifacts from archeological sites;
theft of artifacts from historic or prehistoric structures;
removal of all or portions of a structure; arson; climbing
or walking on resources; breaking artifacts, objects, or
windows; knocking structures over; throwing rocks and
other debris into excavated ruins; or simph ly handling or
touching the structure or contents of sites.“ It should be
emphasized that although surface collection of
arrowheads is not prohibited under ARPA, such activity
does violate both the Antiquities Act Gee Page 2), and
the Theft of Government Property statute 18 U.S.C. 641.

The LOOT Clearinghouse contains reports on 60 cases
dating from the time of adoption of ARPA regulations, but
only 28 of those included ARPA counts for prosecution.’>
Only 16 defendants were prosecuted solely under ARPA.
Those activities successfully prosecuted included theft of
Civil War relics from public lands, site disturbances-dig-
ging or sifting for artifacts-on public lands, removal of
material remains or artifacts from prehistoric Indian
burial sites, looting of historic shipwrecks in national
reserve waters, and trafficking in stolen artifacts illegally
obtained from public lands.

Successful prosecutions do not necessarily mean auto-
matic imposition of appropriate fines or other penalties.
LOOT reflects only $270 collected in civil fines,” al-
though the number of substantial forfeitures has in-
creased. Items forfeited usually include all tools and
equipment used in search and removal efforts, digging
tools, metal detectors, diving equipment, and even vehi-
cles such as trucks and boats. Of course, all artifacts in
the possession of the defendants are usually confiscated
and, upon conviction, those items are forfeited. Defen-
dants who actually serve prison time for ARPA violations
continue to be the exception because these sentences
often are suspended by the court or magistrate in favor
of supervised probation and fines. The amounts of crim-
inal fines imposed continue to be far less than the statu-
nn, allowances, with the exception of one $10,000
7 and one $21,000 fine, which was assessed under
another statute. Another notable exception was the as-
sessment of $132,000 in civil penalties against seven
individuals who looted shipwrecks within a National Park

10



LOGICAL RESOURCES PROTECTION

=| MD} MA|MI | MN/ MS |MO| MT) NE | NV | NH | NJ | NM/NY | NC/| ND| OH; OK| OR UT
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STATE STATUTES PROMOTING ARC

AL | AK] AZ| AR|CA|co|ct/DE|FL | Ga} HI | 1D | [in | 1a | Ks| KY
STATE ARCHEOLOGIST @e\e e/e ee e\e ee
STATE HISTORICAL AGENCY elele elele elelelelejeieleie
STATE REGISTER elelele ele eleielejeie
RULES AND REGULATIONS
AUTHORITY e e e,.e @e\@i e\e
PROMULGATION ~ e e ° e |
NATIVE INVOLVEMENT e e ele]
APPROVAL REQUIRED OR I
CONSULT REQUIRED :
APPOINTED TO STATE AGENCY e ele :
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STATE SURVEY-INVENTORY ele eleielecie elele elele
OBLIGATION TO REPORT DISCOVERIES e elelele elele
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CONFIDENTIALITY OF SITE LOCATIONS: ele e e
PERMIT TO CONDUCT FIELD INVESTIGATIONS. @iel\e @eje;eie ee @eiele e@\e
ACQUISITIONS
REAL PROPERTY OR
e ele e ele ele e
ARTIFACTS
CURATIONS
STATE MUSEUMS eee eee e e
VIA PERMIT e e\ele e e
OTHER e elele e e elele
COMMERCIAL RESTRICTIONS
SALE OF ANTIQUES OR
e
SALE OF FORGERIES oie ° eee
DISCOURAGING ACTIVITY ON PRIVATE LAND elele elele
PENALTIES @ielelelieieleleie eleleleieie
BURIALS ele e elele e elelele
WITH REINTERNMENT e e e e e
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6 Figure 1. State Statutes Promoti:.


found in time to issue citations or perform an arrest. Also,
convictions reported fora given year may be for prosecu-
tions begun two to five years earlier. 59 (See Figure 2)

Protection strategies on federally controlled lands have
included increased patrols, site monitoring, including
surveillance technology such as hidden alarm
mechanisms, and remote sensing, and interagency
cooperation. The result has been a significant increase in
reported ARPA violations, but there has yet to be a cor-
respondingly dramatic increase in citations, arrests,
prosecutions, or convictions under the statute. It is also
evident that actual looting and trafficking in artifacts far
exceeds the number of reported incidents.

LOOT Clearinghouse Cases

Another source of information about archeological
protection is the Listing of Outlaw Treachery (LOOT)
Clearinghouse, created by the NPS Archeological Assis-
tance Division. It contains voluntarily submitted reports
for cases of archeological looting and vandalism. Its ob-
jectives are to improve the quality of information avail-
able about archeological protection, increase the
effective use of that information for future enforcement
efforts, and expedite the communication of case
strategies and results among the many government agen-
cies. Case-specific information for the LOOT Clearin-
ghouse is collected ona form that is distributed to Federal
agencies along with the questionnaire requesting data on
Federal argheology programs for the annual report to
Congress.’ Respondents are asked to supply information
on cases that have been completed, not about ongoing
investigations. Others concerned with archeological
protection, such as attorneys, law enforcement officials,
or professional archeological consultants, also are asked
to submit information on completed cases with which
they are familiar.

Table 1 compares the programmatic data gathered as part
of the annual report on the Federal archeology program
with the case-specific data reported on individual LOOT
forms. The discrepancy in numbers is a result of the way
in which cases and incidents are grouped, how many
LOOT forms document the resolution of cases, and
whether or not cases brought under statutes other than
ARPA are included in either the annual report data or the
LOOT data.

Although the primary purpose of LOOT is to provide “a
central place for those seeking information on prosecu-
tions of looting and vandalism,”©! it also reflects how
often and with what success such prosecutions are
brought under ARPA, eitheralone orin combination with
other statutes. The LOOT Clearinghouse presently con-
tains information on approximately 100 cases; 23 of these
predate the passage of ARPA, while another 24 predate
the adoption of ARPA’s implementing regulations.°? All
buta few entries predate the 1988 amendments to ARPA,
which make it easier for prosecutors to build strong
cases.

A brief discussion of pre-regulations cases may be neces-
sary to the understanding of ARPA’s development, but
the effectiveness of ARPA should be viewed in light of the
past five years that these regulations have been in place.
Inaddition, the 1988 amendments to ARPA provide three
important changes in favor of enforcement. These in-
clude: (1) reduction of the damage amount that estab-
lishes the criminal offense from $5,000 to $500;° (2)
insertion of language into Section 6(a), which makes it a
criminal offense to “. . attempt to excavate, remove,
damage, or otherwise alter or deface” any archacological
resources on federally controlled lands,*”* and (3)
development of a reporting system to document
suspected violations under ARPA.&

Category Report questionnaire LOOT Clearinghouse
Incidents 2,950 (includes cases and incidents) 47 (includes cases only)
Arrests 91 (with or without further action) 19 (arrests followed by trial or hearing)
Citations 256 (with or without further action) 7 (citations resulting in trial)
Prosecutions 119 (no details) 50 (disposition documentation incomplete)
Convictions

Felony 19 Unspecified

Misdemeanor 57 Unspecified
Civil Penalty 27 Unspecified
Other Statutes 190 (no indication whether case is 16

pending, dropped, settled, or tried)

Table 1. Archeological Protection Case Data Comparison



U.S. Department of the Interior
National Park Service
Cultural Resources

Technical Brief No. 11
June 1991 (Revised September 1991)
ISSN 1057-1574

This Technical Brief describes the legal background and
case histories for archeological protection. Its purpose
is to provide a convenient summary of archeological
protection and preservation as an issue in law and
jurisprudence that will be of use to jurists who may
need assistance in casework.

Portions of this technical brief depart from the standard
Sormat for reference citations, t.e., American Antiquity
style, in favor of endnotes and legal usages, standard
legal citation format, which are more helpful to
attorneys and judges. Also, the standardized Federal
government spelling of “archeology” is used through-
out, except in titles and direct references to the Archae-
ological Resources Protection Act where it is spelled
“archaeology.”

Introduction

Despite a variety of Federal, Tribal, State and even local
laws passed over the last 85 years, the amount of looting
and vandalism of irreplaceable archeological resources
continues to increase. Archeological sites are located on
both public and private lands. Many of the areas are
remote and difficult to patrol,! although considerable
numbers of archeological sites are also to be found in
more densely populated areas such as New England, the
Midwest, Southeast, and the West Coast.

This technical brief examines: (1) the current profile of
civil and criminal actions brought since passage of the
Archaeological Resources Protection Act (ARPA);? (2)
the potential areas of application for ARPA; (3) other laws
and regulations that afford protection to archeological
resources; and (4) case patterns through an overview of
LOOT information currently available.

History and Purpose
Statutes Prior to ARPA

Federal preservation law dates from the early 19th cen-
tury, when its primary focus was to document informa-

Departmental Consulting Archeologist * Archeological Assistance Division

Legal Background of Archeological
Resources Protection

Carol Carnett, Legal Aid Bureau of Maryland, Inc.

tion and collect items of importance in connection with
national public figures and historic military events.> The
extended efforts beginning in the mid-19th century to
save George Washington’s home, Mt. Vernon, and pro-
tect the archeological remains and monumental
architecture of Southwest sites such as Casa Grande Ruins
exemplify such early preservation measures, most of
which resulted in cases involving the taking of public
property for preservation or beautification purposes.4
The first case in which the Supreme Court recognized
that the Federal government had the power to condemn
private® property in order to preserve an historic site was
United States v. Gettysburg Electric Railway Co. (1896),
which allowed the creation of Gettysburg Battlefield Me-
morial.° In its decision the Court refused to adopt a
narrow constitutional interpretation offered by the rail-
road, which would have placed the condemnation of its
property outside the definition of a taking for a “public
purpose” necessary for government condemnation of
property. The Court did not discuss whether the govern-
ment could utilize regulatory schemes to facilitate his-
toric preservation, nor did it address the question of
whether the government could extend its efforts to con-
demn and acquire sites with no apparent historical con-
nections-issues which would be extremely important in
the future development of preservation law.

Around the turn of the century, local governments began
to adopt a European approach to land use and zoning
regulation for the purpose of preserving the “local char-
acter” of their towns. The City of Baltimore, for example,
adopted a 70-foot maximum height regulation to main-
tain the character of its residential and commercial areas.
Asimilar regulation was adopted the same year by the city
of Boston. The Baltimore regulation was challenged in
Cochran v. Preston (1908)’ and upheld by the Court of
Appeals on the ground that it was designed to reduce fire
hazards in addition to containing an aesthetic preserva-
tion goal. The Boston ordinance was also challenged, and
ended up before the Supreme Court in 1909.° The Court
upheld the ordinance as being reasonably related to pub-
lic health and safety, primarily in the area of fire preven-
tion. Still, the Court did not address the issue of whether
government regulation could be justified under constitu-
tional substantive due process standards for preservation
reasons. It would be 1978 before that question would be
answered in the affirmative.?



Endnotes

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, ChristopherJ., 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. 668 (1896).
7. 108 Md. 220, 70 A. 113 (1908).
8. Welch v, Swasey, 214 U.S. 91 909).

9. Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). An carlier 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 wellas 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 onc 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: "{HJistoric 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 gencral 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 US.C. 431, § 2.

14, PLL. 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 encouraged
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 CER. Part 800.

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



it

community service also are required. Denial of access to
public lands or monuments is imposed on many defen-
dants during their probationary periods.””

If a general trend can be seen through analysis of the
LOOT Clearinghouse cases thus far, it is clear that ARPA
prosecutions are increasing, but it is less likely that a
prosecution is brought under ARPA alone.” Federal
statutes governing theft and embezzlement of govern-
ment property or destruction of government property
(See Page 4) usually are included along with the ARPA
counts. Attorneys may be more willing to prosecute
exclusively under ARPA where the defendant has a prior
ARPA conviction, whether felony or misdemeanor, since
after one conviction there is no felony threshold with
regard to damage to the archeological resource, and the
maximum penalty is now up to five years imprisonment
and/or as much as $250,000 in fines.

There still appears to be a reluctance on the part of
prosecuting attorneys to include the additional civil
damages that are available under ARPA. In one casc,
although information as to civil liability was presented in
detail to the Grand Jury, the attorneys on the case elected
not to pursue civil prosecution. The defendants escaped
fines of several thousand dollars, paying only the criminal
fines and receiving suspended sentences in favor of 5
years probation with 100 hours of community service to
be performed. In another case involving an underwater
site, the attorney elected not to prosecute under ARPA at
all, rationalizing that the court might not consider
“diving” for artifacts to be covered under the statute,
which speaks to “digging.” The LOOT report correctly
pointed out that such a rationale would not have
prevented prosecution under the National Historic
Preservation Act, (See Page 2), which makes ita violation
to remove artifacts from Federal property in any manner.
Pre-trial agreements or plea bargaining also account for
the dropping of ARPA counts in exchange for guilty pleas
to lesser offenses. There are two possible explanations
for this. Perhaps United States Attorneys continue to have
doubts about prosecuting under ARPA because of pos-
sible negative statutory interpretations or questions
about whether the defendants’ activities would really
satisfy requirements for an ARPA violation. Alternatively,
the potential for violators to receive significant criminal
penalties under ARPA may have been shown to be a
useful element in effective plea bargaining.

A note of caution is appropriate here. Several factors
greatly influence the quality and accuracy of current
ARPA enforcement documentation. A large number of
Federal agencies are required to respond to the annual
NPS questionnaire, ” and the accuracy and completeness
of those responses vary widely depending upon the inter-
est and expertise of the person filling out the form.
Cumulative figures are skewed because neither the
Department of Transportation nor the Justice Depart-

ment provides responses to the questionnaire that cor-
roborate media reports and other independent informa-
tion about their activities relative to ARPA violations”?
and prosecutions. The LOOT case forms usually are com-
pleted and submitted*! by Forest Rangers, Park Rangers,
and Regional or State Archeologists, who, in turn, are
getting their information from agency patrol reports,
United States Attorneys, newspaper or magazine articles,
and, occasionally, court records.®? The case reports are
limited to known archeological sites.

Interpretation of what constitutes a “case” in the LOOT
forms also depends upon the informant. LOOT reports
include “incidents” that resulted in the assessment of
fines-an occurrence that requires some sort of formal
procedure-yet the report is silent as to dates of arrest,
indictment, hearing, or trial. Conversely, there are LOOT
reports that clearly reflect that a hearing or trial has taken
place, but there is no information as to the forum of that
proceeding or as to whether the penalties assessed were
civil or criminal in nature. Furthermore, even when dis-
tinction is made between criminal and civil penalties, the
nature of the criminal punishments-felony or mis-
demeanor-are omitted. ARPA violations are often docu-
mented, but many of the LOOT reports do not indicate if
the actual charges brought were under ARPA or another
statute or both. When statutes are cited, there are often
omissions as to which counts were dropped during plea
bargaining or which counts are included in the resulting
guilty verdicts. Amounts that are listed as “fines” are
sometimes really the value of items forfeited, and there is
confusion among the individual reporters as to what is
meant by the terms “restitution,” “fine,” “forfeiture,” and
“court costs.” On occasion, an agency will have so many
violations that it literally stops counting and begins
generalizing. ©

Conclusion

The legal background of archeological resources protec-
tion is long, reflecting more than 100 years of public
concern to preserve the material evidence of the nation’s
past. That concern has changed over time, and since the
late 1970s efforts to integrate research, public education,
and law enforcement to further safeguard these irreplace-
able parts of our heritage have increased. The enactment
of ARPA was a major result. Along with ARPA, there now
is a significant body of law available to those who are
responsible for protecting archeological resources from
looting and vandalism. Case histories demonstrate that
effective enforcement has increased, especially when
conducted as part of a larger program of archeological
resources stewardship and public awareness. Often,
these cases have inspired the public’s interest in its
heritage and fostered a wider understanding of its rich
cultural past.

11



ing and subsequent enactment of State legislation in
Arizona to protect and preserve ancient burial sites on
private land.

SHPO legislative efforts necessarily include the building
of a constituency that will be available for future legisla-
tive activities in related areas. The SHPO survey docu-
mented the following legislative and administrative
activities: drafting bills (1); legislative task force member-
ship (3); and Federal grant project reviews (1).

Training

SHPOs also recognized their participation in training
programs for archeological resources protection. SHPOs
were both students (19) and teachers (13) in various
programs including the 40-hour skills development
course sponsored by the Federal Law Enforcement Train-
ing Center, the 12-hour overview of archeological protec-
tion programs sponsored by NPS, public awareness
programs, and inhouse workshops. Eleven SHPOs indi-
cated that there had been no participation in preservation
law training.

Results of the survey confirm that SHPOs are a potentially
valuable resource in expanding efforts to enforce preser-
vation laws and educate the general public about
archeological resources protection. While most enforce-
ment activities continue to be conducted by Federal
agencies, significant public awareness efforts are con-
ducted by States, especially during “archeology weeks.”
When these are coupled with improved cooperation
among law enforcement jurisdictions, there can be an
important impact in reducing site vandalism.

Application of ARPA

Federal and Indian lands are the clear province of ARPA,
and the statute requires four agencies, the Departments
of the Interior, Agriculture, and Defense, and the Ten-
nessce Valley Authority, to provide uniform regulations
for its implementation. Federal agencies also may adopt
supplementary regulations, as long as these are consis-
tent with the uniform regulations. In addition, the
Secretary of the Interior is charged with reporting to
Congress on the Federal archeology program and ac-
tivities conducted pursuant to ARPA. This function is
completed by Interior's Departmental Consulting
Archeologist (DCA), who receives staff support from the
NPS Archeological Assistance Division. Annually, Federal
agencies cooperate to provide information about their
programs to the DCA, and this includes information bs
lated to enforcement of archeological protection laws.>?

Collection of information about enforcement reflects
only activity at known archeological sites. The majority
of sites that probably exist on federally controlled lands
have yet to be inventoried or evaluated. Congress recog-
nized the need to conduct broader archeological surveys

Reported incidents
EEEED catons or arrose
Prosecutions ARPA (No Date on ARPA violations for FY 1985),

Omoro~v4zmo-oZ-

Sh Las.

1985 1986 1987 1988+
FISCAL YEAR.

* Includes 1988 data on file as of December 1990. Pending prosecutions and
convictions at time information was submitted have not been included.

Figure 2. Vandalism and looting statistics, FY 1985 and
FY 1986.

to complement project-specific archeological work by
adding Section 14 to ARPA in 1988. The latest available
information indicates that, overall, Federal agencies es-
timate that less than 8 percent of the lands they manage
have been investigated for possible archeological sites.
The magnitude of site looting and vandalism is more
easily understood by looking at one area, the “Four
Corners” of the Southwest,°> wherein significant per-
centages of the known archeological sites have been
damaged or destroyed by either casual or unintentional
disturbance or by systematic commercial looting.

Between 1985 and 1987, a total of 1,720 incidents of
archeological looting were reported by Federal agencies.
These incidents resulted in a total of 134 citations, 49
arrests, 57 criminal misdemeanor convictions under
ARPA, 16 felony convictions under ARPA, and 17 civil
penalties under ARPA.>> The largest number of cases
actually prosecuted were brought under other
authorities, such as other Federal statutes, State statutes,
or agency-specific regulations.

Archeological site monitoring throughout the vast
Federal lands areas is difficult, at best.>” In addition to the
inadequate number of personnel available for site patrol,
many known sites are virtually undetectable to the un-
trained eye, and damage may be undiscovered or un-
noticed for long periods of time. Consequently, timely
discoveries of looting have been one problem for enfor-
cement.*® The 1988 Federal agency information indi-
cates that only 15 percent of the reported incidents were



statute that is applicable to cultural resources preserva-
tion.” The EIS must be prepared prior to such proposed
actions. Both NEPA and NHPA apply only to Federal
actions, and although these statutes neither specifically
prohibit activities that may ultimately result in damage to
or destruction of archeological resources nor require
actions to preserve cultural resources, the courts have
usually considered NEPA applicable to such resources, in
that the natural environment includes our “historic and
cultural heritage”.*

American Indtan Religious Freedom Act (AIRFA)**
This Act seeks to protect and preserve traditional Native
American, Eskimo, Aleut, and Hawaiian spiritual beliefs
and practices by providing access to ancient sites for
these Native peoples. AIRFA also provides for the use and
possession of sacred objects by members of the Native
American Tribes. Archeological site protection is a
Federal activity related to AIRFA, since it directs the
various agencies to consult with Native traditional
religious leaders in a cooperative effort to develop and
implement policies and procedures that will aid in deter-
mining how to protect and preserve Native American
cultural and spiritual traditions. Section 10(a) of ARPA
requires that uniform regulations be promulgated for
ARPA after consideration of AIRFA.

Federal Collections Act of 1966"

This Act requires that Federal agencies attempt collection
of all claims for money or property damage arising out of
activities on Federal lands, including claims resulting
from unauthorized or illegal activities that damage or
destroy cultural resources. Historic and prehistoric sites
have clearly been defined as “resources” under the Antiq-
uities Act, NHPA, and ARPA, and collection requires
careful analysis by a professional archeologist whose
training includes methods of site appraisal, such as
provided in the uniform regulations for ARPA, that will
translate site damage into monetary terms and satisfy the
evidentiary requirements of a court case.

18 U.S.C. 641, Embezzlement and Theft”

This statute provides that, “Whoever embezzles, steals,
purloins, or knowingly converts to his use or the use of
another, or without authority, sells, conveys, or disposes
of any record. . .or thing of value of the United States or
of any department or agency thereof. . .or whoever
receives, conceals, or retains the same with intent to
convert it to his use or gain, knowing it to have been
embezzled, stolen, purloined, or converted shall be fined
not more than $10,000 or imprisoned not more than 10
years, or both; but if the value of such property does not
exceed the sum of $100, he shall be fined not more than
$1,000 or imprisoned not more than one year, or both.”
“The word, ‘value’ means face, par, or market value, or
cost price, either wholesale or retail, whichever is
greater.” This statute, together with the malicious mis-
chief statute, may be used in coordination with ARPA to
establish liability of looters as well as their connected
commercial agents or dealers in artifacts.

18 U.S.C. 1361, Destruction of Government Proper-
ty (Malicious Mischief)

This statute provides: “Whoever willfully injures or com-
mits any depredation against any property of the United
States, or of any department or agency thereof. . shall be
punished as follows:

If the damage to such property exceeds the sum of $100, by a
fine of not more than $10,000 or imprisonment for not more
than ten years, or both; if the damage to such property does not
exceed the sum of $100, by a fine of not more than $1,000, or
by imprisonment for not more than one year, or both."

The advantages to including this statute when litigating
against looters and vandals is clear, since its penalties may
be applied to partial site destruction or to destruction
and/or removal of smaller non-replaceable resources
such as portions of pots, chipping tools, and fabric rem-
nants.

18 US.C. 1163, Embezzlement and Theft from In-
dian Tribal Organizations

This statute is similar to 18 U.S.C. 641, described above,
but it applies specifically to embezzlement and theft from
Indian Tribes.

Alternative fines are also applicable to both the malicious
mischief and embezzlement/theft statutes. Pursuant to
18 U.S.C. 3571, maximum fines may be imposed for
convictions under 18 U.S.C. 1163, 18 U.S.C. 641, and 18
U.S.C. 1361, as follows:

Misdemeanor conviction, value less than $100.00, up to
$100,000 maximum fine. Felony conviction, value exceeds
$100,000, maximum fine up to $250,000.

If the defendant is an organization, the maximum fine
rates are doubled, although no term of imprisonment can
be imposed

18 U.S.C. 371, Conspiracy to Commit Offense or
Defraud the States

For a discussion of the application of the Fifth Amend-
ment double jeopardy clause to subsequent criminal
prosecutions and the possibility of bar as to “same of-
fense" charges, see Grady v. Corbin, 110 S. Ct. 2084
(decided May 29, 1990).

Companion State Statutes

Research into existing State statutes that are applicable to
archeological resources protection was begun by ex-
amining a collection of State laws contained in National
Park Service (NPS) files. The list obtained was expanded
through a search of the LEXIS and the WESTLAW com-
puter services. Additional information was provided
through correspondence with participants in the NPS,
Forest Service, and Federal Law Enforcement Training
Center who provided LOOT Clearinghouse information
(see discussion of LOOT Clearinghouse below). The
chart of State statutes (Figure 1) represents the several
categories that were needed to identify statutes ap-



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 activitics through fiscal year 1987 is nearing completion. Sce 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 23.

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(aX 1Xii), taking of potsherds from public land, or 36 C.F.R. Part 2.10(BX10), 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 Archcological 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 US.C. 470ce amended at 102 Stat. 2983 (Nov. 3, 1988).

64. Ibid.

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

66. Prior to the issuance of ARPA uniform regulations, this section to some extent created a duc 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.

15



The critical provisions of ARPA make it illegal to excavate
or remove any archeological resources from Federal or
Indian lands without a permit from the Federal land
manager. Permits for archeological work on Indian lands
may be granted only after obtaining consent of the Indian
allottee or Indian Tribe owning or having jurisdiction
over such lands. One of the conditions for issuance of a
permit is that the applicant demonstrate that proposed
activities will provide increased knowledge of archcologi-
cal resources. A primary purpose of the statute is to
increase the exchange of information and general com-
munication among governmental entities, professional
archeologists, and the public. Finally, ARPA requires
uniform regulations to be promulgated by the Secretaries
of the Interior, Defense, and Agriculture and the Chair-
man of the Tennessee Valley Authority. Federal land
managers, as defined in ARPA, may promulgate additional
regulations, consistent with the uniform regulations,
which may be needed by their agencies.

Currently there are a few State statutes that address
protecting archeologically significant sites located on
private lands but there are no comparable Federal
statutes. Unlike the European nations, the United States
has not embraced the concept of a national cultural
heritage law that protects significant resources within the
boundaries of private ownership of land.

Although the most recent amendments to ARPA will
improve the effectiveness of the antilooting portions of
the statute via interagency cooperation, there are certain
areas in which the only effective remedy will be increased
involvement of the law enforcement community. This
community includes local, State, and Federal law enfor-
cement personnel, attorneys, and the judiciary involved
at each level of prosecution. At present many of these
individuals do not know that the statute exists, or if they
are aware of it, they still prefer to utilize more familiar
State and local laws that prohibit theft, vandalism, or
trespass. Although such laws do take care of some of the
problems, they do not deal effectively with the destruc-
tion of cultural resources and information because the
focus is in punishing specific common law offenses.>>
Because these laws are also more familiar to the members
of juries, as well as the judges, who may be deciding the
cases, prosecutors often see a strategic advantage in
presenting a cause of action that will not be
misunderstood.

When Congress passed ARPA in 1979, legislators and
preservationists hoped that it would result in a reduction
of vandalism and looting of the nation’s prehistoric and
historic archeological sites. They looked to ARPA as a
vehicle for education that would lead to a heightened
public awareness of the problem as well as provide a
major deterrent to looters and illegal commercial sgaffick-
ers through its substantial penalty provisions.” This
continues to be the case, as ARPA was strengthened by
the 1988 amendments with requirements that Federal
agencies develop plans for surveying lands not scheduled
for projects, develop and implement systems for report-
ing and recording archeological violations, and develop

public awareness programs. The amendments also pro-
vide for a lower felony threshold, reduced from $5,000
to $500 damage caused, and prohibit attempts to damage
archeological resources.>” Today, the successful enforce-
ment of ARPA depends upon a variety of interrelated
factors:

(1) Education of the professional communities, includ-
ing archeologists, agency managers, law enforcement
personnel, and jurists, particularly in the areas of preser-
vation law, policy and technology;

(2) Education ofthe citizenry at large to fosterawareness
and appreciation of both historic and prehistoric cultural
resources and the importance of protecting and preserv-
ing those resources;

@) A team approach to collection of data and evidence
in investigative casework;

(4) Communication and cooperation among the agen-
cies that, under the statute, are responsible for the joint
administration of the law, including,

(a) Effective monitoring of the condition of
archeological resources by land managing agencies,
and

(b) Effective cooperation between law enforcement
and cultural resource personnel in managing these
resources; and

(S) Research and development of more effective protec-
tion measures.

Related Federal Legislation

In addition to the statutes that specifically address cul-
tural resources preservation, other legislation also recog-
nizes the importance of historic and prehistoric site
protection. While the preservation statutes themselves
may be limited by weaknesses in certain areas, their
enforcement potential may be increased by their function
in tandem with other laws:

Department of Transportation Act (DOTA)*?

No program undertaken by the Federal Highway
Administration, Federal Aviation Administration, Urban
Mass Transit Administration, or the U.S. Coast Guard will
be approved when it requires use of land from a historic
site, whether of national, State, or local significance,
unless there is no feasible and prudent alternative but
to use such lands, and unless the program includes all
possible planning to minimize harm to the historic
properties (emphasis added).°

National Environmental Policy Act (NEPA)“

Because NEPA’s Environmental Impact Statement (EIS)
requirement applies to all proposed major Federal actions
that may significantly affect the quality of the human
environment, it.has become an effective procedural



Antiquities Act

Federal policy to preserve historic and prehistoric sites
on Federal lands was first embodied in the Antiquities Act
of 1906,!° which authorizes a permit system for investiga-
tion of archeological sites on Federal and Indian lands,
and gives the President the power to establish national
monuments on Federal lands for the purpose of protect-
ing historic landmarks, historic and prehistoric struc-
tures, and other objects of historic or scientific interest.
The Antiquities Act specifies protection of antiquities on
all lands owned or controlled by the Federal government
and gives authority for their proper care and management
to the Departments having jurisdiction. This means that
Indian lands, forest preserves, and military reservations
are included. The statute has no felony provisions, and
penalties limited to criminal misdemeanor charges with
fines up to $500 and/or 90 days imprisonment, are im-
posed upon those “who shall appropriate, excavate, in-
jure, or destroy any historic or prehistoric ruin or
monument, or any object of antiquity situated on lands
owned or controlled” by the Federal government unless
they have a permit’? issued through the Secretary of the
Department having jurisdiction.'* Previously, specific
legislative authorization was required for each designa-
tion. Although the authority to regulate the excavation or
collection of archeological remains from federally con-
trolled lands now rests principally with ARPA, monu-
ments still are created under the Antiquities Act, and that
statute limits monuments to “the smallest area com-
patible with the proper care and management of the
objects to be protected."?

Historic Sites Act

The Historic Sites Act,!4 enacted in 1935, declared a
Federal policy to preserve historic and prehistoric
properties of national significance. It gives the Secretary
of the Interior authority to make historic surveys, as well
as other broad powers to protect historic properties, and
establishes the National Historic Landmarks Program.
This legislation sets standards for identification and
preservation of National Historic Landmarks. It does not
contain any sections that address enforcement.

National Historic Preservation Act (NHPA)
NHPA was originally passed by Congress in 19661° and
established a Federal policy of cooperation with other
nations, Tribes, States, and local governments to protect
historic sites and values. Together with its implementing
regulations, NHPA authorizes the National Register of
Historic Places,!” creates the Advisory Council on His-
toric Preservation, !® provides further considerations for
National Historic Landmarks,'? and creates procedures
for approved State and Local Government Programs.”°
‘The National Register of Historic Places criteria for evalua-
tion of properties to be nominated are found at 36 CFR
Part 60.4. Consideration is given to “districts, sites, build-
ings, structures and objects that possess integrity of loca-
tion, design, setting, materials, workmanship, feeling,
and association” and that are (a) related to events that
* have made a significant contribution to the broad pat-
terns of our history; or that are (b) associated with the

lives of persons significant in our past; or that (c) beara
pattern of distinctive characteristics of historic, architec-
tural, archeological, engineering or cultural significance;
or that (d) have yielded or may in the future yield impor-
tant information as to our history or prehistory.

Regulatory provisions accompanying NHPA require the
State Historic Preservation Officers (SHPOs) to prepare
and implement State historic preservation plans.”*
Protection of identified historic sites is facilitated through
implementation of NHPA Section 106 review, which is a
five-step process designed to ensure that historic proper-
ties are considered during the planning and execution of
Federal projects.?”

The major amendments to NHPA, passed in 1980,?%
provide support for archeological resources protection
because they codify those portions of Executive Order
1159374 requiring Federal agencies to develop programs
to inventory and evaluate historic resources. The amend-
ments also authorize Federal agencies to charge
reasonable costs for such activities to Federal permittees
and licensees.

Archeological and Historic Preservation Act?®
(AHPA)

Though it has been called the Archeological Recovery Act
and the Reservoir Salvage Act, AHPA has no official short
tide. Most importantly, it requires Federal agencies to
preserve historic and archeological data, including the
objects and materials collected from archeological sites,
which may otherwise be lost or destroyed as a result of
“any Federal construction project or federally licensed
activity or program." Up to 1 percent of project funds may
be appropriated to conduct archeological data recovery
activities, in addition to any costs for archeological work
required for project planning.””

Archacological Resources Protection Act (ARPA)
Of the laws currently in place for protecting archeologi-
cal resources, one of the most far-reaching is the
Archaeological Resources Protection Act of 1979
(ARPA) with its subsequent amendments of 1988.
This is particularly true since adoption in 1984 of uniform
regulations by which many aspects of ARPA are en-
forced.>° Under Section 6 of ARPA the first significant
criminal penalties can now be imposed for the vandalism,
alteration, or destruction of historic and prehistoric
sites*! on Federal and Indian lands, as well as for the sale,
purchase, exchange, transport, or receipt of any
archeological resource if that resource was excavated or
removed from public lands or Indian lands or in violation
of State or local law. The penalties include up to $250,000
in fines and up to five years imprisonment. ? Tn addition,
ARPA provides civil penalties for the acts prohibited
under Section 6, as well as for violations of ARPA per-
mits.» The penalties include the forfeiture of property
used for illegal site disturbances or destruction and for-
feiture of illegally obtained artifacts.



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

21. 36 CFR. Part 60, in conjunction with Exec. Order No. 11593, Protection and Enhancement of the Cultural Environment, May 13,
1971 G6F.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 CER. 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.¢., 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.c., the undertaking will
cause harm to one or more historic properties. Sce 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 studics 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@@) of P.L. 93-291.

23. PL. 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 (197), reprinted in 16 U.S.C. 470h-2 Gupp. 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. 469-469¢ (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. 470aal (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
archacological 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 CFR. 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 Figure 1.

36. Although there is considerable documentation in some Federal agency files, ¢.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.

13



70. Civil fines based upon site damage assessments were levied in Brady (Sec 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, 8. Larralde, and G. Tucker, Jr., "A Survey of Vandalism to Archacological 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 Suwance digging casc (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 Occanic 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 fines, $11,500 ordered.
in restitution, and prison sentences varying from 6 months to 22 months for some of the defendents. Additional penalties included
probationary periods of up to 5 years, with 3 defendants required to provide 300 hours cach 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,
Mincral 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, Depart-
ment of Housing and Urban Development, Bureau of Indian Affairs, Forest Service, Rural Electrification Administration, Soil Conserva-
tlon Service, Economic Development Administration, the Army, Navy, and Air Force, and the Army Corps of Engincers.

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 Archacology 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."

16