Technical Brief 20

Archeological Resource Damage Assessment: Legal Basis and Methods

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Technical Brief 20: Archeological Resource Damage Assessment: 

Legal Basis and Methods

Martin E. McAllister, Archaeological Damage Investigation & Assessment, 

Missoula, Montana

Published by the DOI Departmental Consulting Archeologist/NPS Archeology Program, 

National Park Service, Washington, DC, February 2007.

Foreword, by Francis P. McManamon, Chief Archeologist, NPS; Departmental Consulting 

Archeologist, DOI

This technical brief describes and explains the archeological resource damage assessment 

process. The legal foundation for and the necessity of archeological damage assessments is 

described, as are the procedures for field damage assessment, value and cost determinations, and 

report preparation. Archeologists, attorneys, and law enforcement specialists involved in 

investigations of crimes against archeological resources must understand clearly the 

archeological resource damage assessment process and how to carry it out correctly. The 

credibility of these damage assessments directly affects the outcome of legal cases and the 

criminal or civil penalties imposed. 

In November 2002, a new sentencing guideline issued by the United States Sentencing 

Commission became effective. This document, entitled, “Cultural Heritage Guideline,” provided 

the federal judicial system with consistent, rational procedures for developing potential sentences 

for those convicted of crimes involving cultural heritage resources, including various kinds of 

archeological resources. Prohibited activities include, among other things, damage to or 

destruction of archeological resources, unauthorized removal of artifacts, features, or other 

components from protected sites, theft, and illegal trafficking. 

The cultural heritage guidelines make use of the concepts of “archeological value,” “commercial 

value,” and “the cost of restoration and repair.” All of these terms, as they are used in a formal 

legal context, are defined either in the Archaeological Resource Protection Act (ARPA), the 

federal law that most directly protects archeological resources, or the regulations that implement 

this law. Since ARPA, which became law in 1979, has been enforced, the ways in which these 

concepts and terms have been used has developed through their application in individual cases. 

After 25 years of practical use of these concepts, the synthesis of what had been learned through 

individual cases into a set of standards was warranted. Such general standards would be of use 

to archeologists, attorneys, and law enforcement personnel in federal agencies assigned to 

ensure effective prosecution of archeological resource looters, traffickers, and vandals.

In addition, the development and publication of the new sentencing guideline emphasized the 

need for standards because use of the guideline by judges throughout the federal judicial system 

meant that more judges, including those who might have had little or no familiarity with 

archeology or archeological resources, would be using these specialized concepts. Professional 

standards describing how archeological value calculations should be developed would serve two 

purposes. First, they would provide justification for a consistent set of procedures and guidelines 

for professional archeologists who conduct archeological damage assessments and calculate 

archeological value for specific legal cases. Secondly, the standards would provide an objective 
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basis for judgment of the legitimacy of the damage assessments used in prosecutions of those 

accused of crimes against archeological resources. Judges would determine whether the 

standards had been followed when they evaluated the procedures used to reach archeological 

value amounts provided by the prosecution in specific cases.

The Society for American Archaeology (SAA), an organization dedicated to the research, 

interpretation, and protection of the archaeological heritage of the Americas, with the support of 

the National Park Service, assembled a group of public and private sector and academic 

archeologists, government attorneys, and law enforcement experts to develop these needed 

standards. The group met in a workshop in March 2003. They drafted the standards at the the 

workshop and refined the drafts during the following months. In November 2003, the Board of 

Directors of the SAA reviewed and approved as official, “Professional Standards for the 

Determination of Archaeological Value.” This technical brief is designed to provide additional 

guidance for the use of the standards, drawing on decades of experience in archeological 

resource protection.

Introduction

The criminal and civil penalty sections of the Archaeological Resources Protection Act (16 USC 

470aa-mm; ARPA) require the assessment of damage to archeological resources that are harmed 

by unauthorized acts. Archeological resource damage assessment uses the methods of archeology 

to provide the information necessary to prove that the archeological elements of a criminal or 

civil violation of ARPA are met according to the requirements of the law and the judicial system 

(see Figure 1). The assessment of damages to archeological resources in archeological violation 

cases cannot be carried out without reference to these legal requirements. In other words, 

archeological resource damage assessments require both archeological expertise and adherence to 

legal requirements.

 

Figure 1: This diagram represents the relationship of 

Archeological Resource Damage Assessment to 

Archeology and to the Law and Judicial System. 

(Figure developed by Assistant United States Attorney 

Wayne Dance, Department of Justice, District of 

Utah. Used by permission.)
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The purpose of this technical brief is to describe and explain the archeological resource damage 

assessment process. The legal basis of archeological resource damage assessment is presented by 

identifying the elements that must be proven for the prosecution of either a criminal or civil 

violation of ARPA. The Act's definition of an “archeological resource” also is discussed because 

it is a critical component of the elements of a violation and is a central issue in damage 

assessment. The remainder of the technical brief describes and explains the three components of 

archeological resource damage assessment: (1) field damage assessment; (2) value and cost 

determinations; and (3) archeological resource damage assessment report preparation. Procedures 

are recommended for accomplishing each of these damage assessment components.

Archeological Elements of an ARPA Criminal Violation

Black's Law Dictionary (2005:559) defines “elements of crime” as, “The constituent parts of a 

crime ... that the prosecution must prove to sustain a conviction”. The archeological elements of 

an ARPA criminal violation come directly from the statute:

 16 U. S. C. § 470ee. Prohibited acts and criminal penalties 

 (a) Unauthorized excavation, removal, damage, alteration, or defacement of 

archaeological resources 

No person may excavate, remove, damage, or otherwise alter or deface, or attempt to 

excavate, remove, damage, or otherwise alter or deface any archaeological resource located on 

public lands or Indian lands unless such activity is pursuant to a permit issued under section 

470cc of this title, a permit referred to in section 470cc(h)(2) of this title, or the exemption 

contained in section 470cc(g)(1) of this title.

 (b) Trafficking in archaeological resources the excavation or removal of which was 

wrongful under Federal law 

No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or 

exchange any archaeological resource if such resource was excavated or removed from public 

lands or Indian lands in violation of—

(1) the prohibition contained in subsection (a) of this section, or 

(2) any provision, rule, regulation, ordinance, or permit in effect under any other 

provision of Federal law.
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 (c) Trafficking in interstate or foreign commerce in archaeological resources the 

excavation, removal, sale, purchase, exchange, transportation or receipt of which was 

wrongful under State or local law 

No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or 

exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, 

sold, purchased, exchanged, transported, or received in violation of any provision, rule, 

regulation, ordinance, or permit in effect under State or local law.

 (d) Penalties

Any person who knowingly violates, or counsels, procures, solicits, or employs any other 

person to violate, any prohibition contained in subsection (a), (b), or (c) of this section shall, 

upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or 

both: Provided, however, That if the commercial or archaeological value of the archaeological 

resources involved and the cost of restoration and repair of such resources exceeds the sum of 

$500, such person shall be fined not more than $20,000 or imprisoned not more than two 

years, or both. In the case of a second or subsequent such violation upon conviction such 

person shall be fined not more than $100,000, or imprisoned not more than five years, or both.

Readers should note that the maximum fines for Class A misdemeanor and felony violations of 

federal law by individuals were increased to $100,000 and $250,000 respectively by the Criminal 

Fines Improvement Act of 1987 (see 18 USC § 3571(b)); maximum fines for Class A 

misdemeanor and felony violations by organizations are $200,000 and $500,000 respectively. As 

a result, these are now the maximum fines for Class A misdemeanor and felony violations of 

ARPA, even though the original and lower ARPA fine amounts are shown in § 470ee(d).

Thus, the six elements that must be proven for a felony violation of § 470ee(a), as supplemented 

by § 470ee(d), are:

Element 1. The violation affected an archeological resource as defined in ARPA. 

Element 2. The violation occurred on public (federal) or Indian lands.

Element 3. The violation involved one or more of ARPA's prohibited acts.

Element 4. The prohibited act occurred without an ARPA permit for archeological 

investigation.

Element 5. The violator acted knowingly (i.e. with criminal intent). 
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Element 6. For a felony offense only, the sum of archeological value and cost of restoration 

and repair, or the sum of commercial value and cost of restoration and repair, exceeds 

$500.00. If this element is not charged, or is charged but not proven, the ARPA violation is 

a Class A misdemeanor. 

The subsections of § 470ee prohibiting the unlawful trafficking of archeological resources, § 

470ee(b) and § 470ee(c), have distinct elements that must be proven. These elements are not dealt 

with here because they do not affect the damage assessment process.

Elements 1, 3, and 6, are archeological elements that require archeological information, either in 

whole or in part, to prove each of them. Exclusively archeological information is necessary for 

the proof of Element 1. Element 3 requires both investigative information on how the violation 

occurred and archeological information on the nature of the archeological resource damage 

involved in the prohibited act or acts. Element 6 requires archeological information for the 

archeological value and cost of restoration and repair determination and both archeological and 

appraisal information for the commercial value determination. Elements 2, 4 and 5 can be proven 

without archeological information.

Archeological Elements of an ARPA Civil Violation

ARPA civil violations are subject to the assessment of an ARPA civil penalty. ARPA civil 

violations also have elements that must be proven. The archeological elements of an ARPA civil 

violation again come directly from the statute:

 16 U. S. C. § 470ff. Civil penalties 

 (a) Assessment by Federal land Manager 

(1) Any person who violates any prohibition contained in an applicable 

regulation or permit issued under this chapter may be assessed a civil penalty by 

the Federal land manager concerned. No penalty may be assessed under this 

subsection unless such person is given notice and opportunity for a hearing with 

respect to such violation. Each violation shall be a separate offense. Any such

civil penalty may be remitted or mitigated by the Federal land manager 

concerned. 

(2) The amount of such penalty shall be determined under regulations 

promulgated pursuant to this chapter, taking into account, in addition to other 

factors—
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(A) the archaeological or commercial value of the archaeological resource 

involved, and 

(B) the cost of restoration and repair of the resource and the archeological 

site involved. 

Substantial portions of the text of the prohibited acts and criminal penalties section of the ARPA 

statute (see above) are restated in the ARPA Uniform Regulations, Section __.4(a)-(c) so that a 

civil penalty may be assessed for a violation of this section of the statute and its reference to “any 

prohibition contained in an applicable regulation.”

Thus, the elements that must be proven for a civil violation of § 470ff(a) are: 

Element 1. The violation affected an archaeological resource as defined in ARPA. 

Element 2. The violation occurred on public (federal) or Indian lands.

Element 3. The violation involved one or more of ARPA's prohibited acts.

Element 4. The prohibited act occurred without an ARPA permit for archeological 

investigation.

Once the civil violation is proven, the violator is subject to the assessment of an ARPA civil 

penalty, the maximum amount of which will be the sum of archeological value and the cost of 

restoration and repair, or the sum of commercial value and the cost of restoration and repair.

The elements that must be proven for the assessment of a civil penalty under § 470ff are the same 

as for a criminal violation of § 470ee, with the exception of element 5 (criminal intent) and 

element 6 which is only relevant to criminal proceedings. As in the case of the criminal violation 

elements, elements 1 (archeological resource), 3 (prohibited acts), as well as the value and cost 

determinations, are archeological elements that require archeological information to prove each of 

them.

Readers should note that the text of the ARPA Uniform Regulations is, as their title implies, 

uniform. Due to the organization of the Code of Federal Regulations (CFR), the ARPA uniform 

regulations appear in four different locations within the CFR. The text of the ARPA regulations is 

identical, but the numbering is different depending on the department or agency that the 

regulations cover. Specifically, for the Department of the Interior the numbering is 43 CFR Part 

7, for the Department of Agriculture it is 36 CFR Part 296, for the Department of Defense it is 32 

CFR Part 229, and for the Tennessee Valley Authority it is 18 CFR Part 1312. For example, 

Section __.4(a)-(c) of the regulations would be found at 43 CFR Part 7.4(a)-(c) for Department of 

the Interior agencies, such as the National Park Service and the Bureau of Land Management, and 
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at 36 CFR Part 296.4(a)-(c) for Department of Agriculture agencies, such as the Forest Service. 

References to sections of the ARPA Uniform Regulations in this Technical Brief use a 

department-neutral format (e.g. “Section __.4(a)-(c)”).)

Archeological Resources Protected by ARPA

ARPA's definition of an “archaeological resource” is:

 16 U. S. C.§ 470bb. Definitions 

 (1) The term archaeological resource means any material remains of past human life or 

activities which are of archaeological interest ... at least 100 years of age. 

The terms “material remains” and “archaeological interest” are defined in the ARPA uniform 

regulations:

 “Material remains” means physical evidence of human habitation, occupation use, or 

activity, including the site location or context in which such evidence is found ( Section 

__.3(a)(2)). 

 “Of archaeological interest” means capable of providing scientific or humanistic 

understandings of past human behavior, cultural adaptation, and related topics through the 

application of scientific or scholarly techniques such as controlled observation, contextual 

measurement, controlled collection, analysis, interpretation and explanation (Section 

__.3(a)(1)). 

The ARPA uniform regulations also includes a list of examples of “classes of material remains” 

considered to be archeological resources (Section __.3(a)(3)(i-x); seeAppendix A).

Field Damage Assessment

Field damage assessment is carried out to obtain information about damage to an archeological 

resource or resources involved in a potential violation of ARPA or other applicable statutes. The 

assessment is conducted at the location of this damage and is part of the overall investigation at 

the scene of the violation. Typically, the damage location is an archeological site, but violations 

may occur that do not involve sites, such as theft of isolated artifacts or theft from curation 

facilities or museums. The resulting information about the damage will be used in both the value 

and cost determinations and in the archeological resource damage assessment report that will be 
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developed as part of case preparation. Four operations must be completed in carrying out field 

damage assessment. The procedures use basic archeological data collection methods.

1. Identification of the archeological resource damage locations: 

a. Identify all damage locations. 

b. Attempt to distinguish new damage locations from old damage locations, if the 

latter are present. 

2. Identification of the archeological resources damaged and the damage to them: 

a. Identify the archeological resources protected by ARPA or other statutes at the 

damage locations (refer to the ARPA definition of an archeological resource [see 

above] and the ARPA uniform regulations examples of the “classes of material 

remains” considered to be archeological resources [see Appendix A]). 

b. Identify the damage to these resources in terms of the acts prohibited by ARPA 

(see above). 

3. Measurement of the amount of archeological resource damage: 

a. Make accurate tape measurements of the amount of damage, unless other, more 

sophisticated quantification methods are available (see 3b.). To meet forensic 

standards of documentation, make as complete a series of measurements as possible 

given the time available. Either metric or English standard measurements (e.g. inches, 

feet, yards) may be used, but metric measurements of damage must be converted to 

standard measurements in the damage assessment report. Note that if the damage has 

extended below the surface of a site, depth measurements are important. Sufficient 

measurements should be made to calculate the volume of damage. 

b. Use other more sophisticated methods to quantify the amount of damage, such as 

total station or 3D laser scanning. More detailed measures such as these may be 

employed to complete an assessment, following the initial use of tape measurements. 

4. Documentation of findings: 

a. Take accurate and complete notes on all aspects of the field damage assessment 

process. 

b. Photograph the damage locations, the archeological resources damaged and the 

damage to them.

c. Map the damage locations. 
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d. Documentation should be as detailed and objective as possible.

Value and Cost Determination

ARPA identifies three monetary determinations as the measures of the severity of harm to the 

archeological resource(s) involved in either a criminal violation or a civil violation of the statute. 

These monetary determinations are:

 Commercial Value 

 Archeological Value 

 Cost of Restoration and Repair 

As is indicated by the definitions of these terms in the ARPA uniform regulations (see below), all 

archeological violation cases that involve damage to in situ archeological resources require both 

archeological value and cost of restoration and repair determinations.

Archeological violation cases may or may not involve a commercial value determination. 

Commercial value derives from collector interest in archeological resources. Archeological 

resources that have collector interest will have a fair market value, while those that are not of 

interest to collectors will not have a market value. A commercial value determination is not 

necessary when the archeological resources involved in a violation are not of collector interest 

and do not have a fair market value. When there is collector interest in the resources and a 

resulting fair market value, then a commercial value determination is required. (Note that market 

value does not necessarily mean the exchange of cash, but can also include the exchange of 

goods, i.e., barter. For example, artifacts may be traded for drugs or other artifacts as well as for 

money.)

The tables referred to in the following sub-sections on “Commercial Value,” “Archeological 

Value” and “Cost of Restoration and Repair” and the “Archeological Resource Damage 

Assessment Report Preparation” section may be developed at any point in the process of making 

the value and cost determinations and preparing the resource damage assessment report. 

Typically, they are prepared as a component of the determinations and prior to writing the report 

text, but this is not required.

Readers should note that there are some basic and highly important concerns in the ARPA value 

and cost determination process. First, speculation is not permissible. Second, and following from 

the first point, values or costs included must be fully justifiable in terms of being either incurred 
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or projected on an actual and reasonable basis. Third, values or costs for the same operation must 

not be included twice or “double counted” in the value and cost determinations. When operations 

appearing to be the same or similar are included in different aspects of a value and cost 

determination, their differing purposes must be fully explained. Examples of issues related to 

these concerns will be provided in the discussion of commercial value, archeological value and 

cost of restoration and repair. 

Commercial Value

“Commercial Value” is defined in Section __.14 of the ARPA uniform regulations:

Commercial value. For the purposes of this part, the commercial value of any 

archaeological resource involved in a violation of the prohibitions in § __.4 of this part or 

conditions of a permit issued pursuant to this part shall be its fair market value. Where 

the violation has resulted in damage to the archaeological resource, the fair market value 

should be determined using the condition of the archaeological resource prior to the 

violation, to the extent that its prior condition can be ascertained (Section __.14(b)).

Black's Law Dictionary (2005:12944) defines “fair market value” as, “The price that a seller is 

willing to accept and a buyer is willing to pay on the open market ...”. Note that the definition 

requires the commercial value of damaged archeological resources to be determined only in this 

damaged condition unless it can be show that the damage was caused by the violation.

Procedures for Determination of Commercial Value.

The following procedures can be used to determine commercial value. These procedures should 

be carried out by an expert on the fair market value of the archeological resources involved in the 

violation. In most cases, the archeological resources of commercial value will be artifacts such as 

modified stone, ceramic, wood, glass, or metal, but they also may be archeological features or 

components of archeological features that have been removed, such as rock art panels or rock art 

boulders. Intact artifacts such as whole pots and unbroken glass bottles definitely have 

commercial value, but, in today's marketplace, even items such as pottery sherds, broken points, 

and lithic flakes can have commercial value. Typically, an archeologist will be identified who has 

or will develop this expertise, but a commercial insurance or estate appraiser who has knowledge 

of archeological resource market values also may be used. The determination should be based on 

the most current fair market values of the archeological resources for the time period when the 

violation occurred.

1. Identify any archeological resources that are evidence in the case that have interest to 

collectors of archeological resources and, therefore, commercial value. 
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2. Determine (or have a commercial appraiser determine) the current fair market value of 

these items from appropriate commercial value sources (see below). 

3. Develop a commercial value table or tables showing the fair market value of each item 

and the total commercial value figure (see Figure 2 for an example). 

A commercial value determination should not include a value figure for an archeological resource 

that is assumed to have been removed but was not actually recovered. This would be speculative. 

Only archeological resources that are evidence in the case and can be examined during any legal 

proceedings should be considered in a commercial value determination.

Figure 2: Example of a Commercial Value Table (reproduced from McAllister 1999:10-13; Note 

that “grades” applied to artifacts are based on definitions in Robert M. Overstreet's Overstreet 

Identification and Price Guide to Indian Arrowheads.)

Artifact Commercial Values by Sequential Artifact Photo Numbers

Photo Number Point or Artifact Type Grade Commercial Value

01 Pinto 8 $125

02 Humboldt Base Notched 8 $150

03 Pinto, Stemmed 8 $175

04 Elko Base Notched 9 $150

05 Drill 4 $15

06 Rose Spring 6 $20

07 Rose Spring 7 $25

08 Pinto 7 $25

09 Rose Spring 7 $25

10 Elko 7 $25

11 Desert Side Notched 5 $8

12 Rose Spring 7 $45

13 Rose Spring Side Notched 7 $45

14 Rose Spring 7 $25

15 Pinto 7 $30

16 Desert Side Notched 7 $20

17 Elko Base Notched 7 $35

18 Desert Side Notched 7 $20

19 Northern Side Notched 6 $65

20 Elko Eared 8 $50

...

199 Un-typable Point 1 $0

200 Side Notched 2 $5

205 Side Notched 2 $5

209 Side Notched 2 $3
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215 Side Notched 3 $7

221 Elko Corner Notched 2 $5

228 Side Notched 2 $5

229 Side Notched 3 $8

234 Scraper 5 $8

236 Scraper 5 $8

247 Side Notched 2 $5

248 Elko Corner Notched 3 $8

250 Elko Corner Notched 2 $5

TOTAL COMMERCIAL VALUE $4,636

Commercial Value Sources. The following are examples of commercial value sources:

 artifact price guides 

 artifact collector publications 

 artifact shops and galleries 

 artifact shows and sales 

 gun or knife shows and sales where artifacts are sold 

 Internet artifact websites 

Note that the Internet may or may not be useful in determining the commercial value of 

archeological resources. Its usefulness depends upon how much information is available on the 

market value of specific types of archeological resources. Sometimes there is no information and, 

in other instances, there may be too much information. Often, artifact price guides and artifact 

collector publications are more useful sources of information on commercial value.

Archeological Value

“Archaeological Value” is defined in Section __.14 of the ARPA Uniform Regulations:

Archaeological value. For purposes of this part, the archaeological value of any 

archaeological resource involved in a violation of the prohibitions in § __.4 of this part or 

conditions of a permit issued pursuant to this part shall be the value of the information 

associated with the archaeological resource. This value shall be appraised in terms of the 

costs of the retrieval of the scientific information which would have been obtainable prior 

to the violation. These costs may include, but need not be limited to, the cost of preparing 

a research design, conducting field work, carrying out laboratory analysis, and preparing 

reports as would be necessary to realize the information potential (Section __.14(a)).
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Note that the definition specifies that scientific information retrieval costs “may include, but need 

not be limited to” those of the four operations listed. Therefore, costs of other legitimate scientific 

retrieval operations also may be included in the archeological value determination. An example of 

a necessary scientific information retrieval operation that is not included in the definition's list of 

operations is consultation with the State Historic Preservation Officer (SHPO), the Tribal Historic 

Preservation Officer(s) (THPOs), or other parties as appropriate. Other examples are repatriation 

of Native American Graves Protection and Repatriation Act (NAGPRA) items and the long-term 

curation of other artifacts and materials when items of either category would be recovered during 

scientific information retrieval.

In determining archeological value, it is important to understand the legal concept on which this 

value is based. Archeological value is not a dollar figure for the cost of actually carrying out 

scientific research or contract archeological work in which all currently accepted methodological 

standards would apply. Archeological value is a projected cost figure for scientific information 

retrieval operations as required by ARPA for use in the legal system in order to assess the amount 

of harm to an archeological resource caused by unauthorized acts. This determination requires the 

calculation of reasonable and credible costs for appropriate retrieval of scientific information 

from the damaged portion of the archeological resource if it was still in an undamaged condition. 

These costs should be proportional to the amount of damage in order to be accepted as a 

justifiable measure of the harm caused. Therefore, methodological considerations that would 

apply to actual retrieval of information from the archeological resource do not necessarily apply 

in an archeological value determination.

For example, proposing to base archeological value on continuing an excavation unit to sterile 

soil at a depth of two meters below the surface would not be proportional to the damage caused 

by an unauthorized excavation by a looter that stopped at one yard (0.9144 meter) below the 

surface, even though an actual excavation unit normally would continue to sterile soil. 

Alternatively, proposing to base archeological value on complete scientific excavation of a site 

would be proportional to complete destruction of the site by unauthorized mechanical excavation, 

even though actual scientific information from the site as a unit using modern archeological 

methods normally would be based on a sampling strategy.

Procedures for Determination of Archeological Value.

The following procedures can be used to determine archeological value. These procedures are 

phrased as questions to be answered making this determination. The questions are based on the 

Society for American Archaeology “Professional Standards for the Determination of 

Archaeological Value” (2003). The standards are included here as Appendix B (see also 

McAllister 2006). The applicable standard is referenced in each question. The use of these 
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professional standards in determining archeological value is recommended strongly. An 

archeologist who has or will develop the required expertise should carry out these procedures.

1. What is the archeological resource involved in the violation (see Standard 1 a., c. and d.)? 

For example: 

Is it an isolated artifact? 

Is it a portion of a site where no features are present? 

Is it a feature (e.g. a house floor; an historic cemetery plot; a rock art panel or boulder)? 

Is it the entire site? 

2. How, both qualitatively (type of damage) and quantitatively (amount of damage), has the 

identified archeological resource been affected by the violation (see Standard 1. b.)? For 

example: 

Has an isolated artifact been removed? 

Has a portion of the site where no features are present been excavated and, if so, how much 

excavation, both horizontally and vertically, has occurred? 

Has a feature been excavated or defaced and, if so, how much of the feature has been affected 

(i.e. all of the feature or only some portion of the feature)? 

Has an entire site been affected and, if so, how has it been damaged (e.g. has it been 

bulldozed; have all the metal artifacts been removed with the aid of metal detectors; has it 

been completely surface collected)? 

3. How, both quantitatively (scale, e.g., area and depth) and qualitatively (methods), would 

scientific information have been retrieved from the identified archeological resource prior to 

the violation (see the discussion of scale and methods in Standards 2 and 3)? For example: 

What scientific information retrieval strategy would have been used if the isolated artifact 

affected by the violation had been located during an archeological survey (e.g., documentation, 

mapping and controlled collection)? 

What scientific information retrieval strategy, both quantitatively (scale) and qualitatively 

(methods), would have been used if the featureless portion of the site affected by the violation 

had been excavated scientifically (e.g., a test excavation and, if so, of what size)? 

What scientific information retrieval strategy, both quantitatively (scale) and qualitatively 

(methods), would have been used if the feature affected by the violation had been excavated or 
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documented scientifically (e.g. scientific excavation or documentation the entire feature or 

only a portion of the feature)? 

What scientific information retrieval strategy, both quantitatively (scale) and qualitatively 

(methods), would have been used if the entire site affected by the violation had been excavated 

or documented scientifically (e.g., scientific excavation or documentation of the entire site or 

only a sample of the site)? 

4. Is the scientific information retrieval strategy projected for the identified archeological 

resource proportional, both quantitatively (scale) and qualitatively (methods), to the effect of 

the violation (see the discussion of proportionality in Standards 2 and 3)? 

5. What operations would be involved in the scientific information retrieval strategy 

projected for the identified archeological resource and what is the justification for each of 

these operations (see Standards 3 and 4)? 

6. What is the line item cost of each of these operations? 

Develop an archeological value table that shows the operations and their line item costs (see 

Figure 3). Note that these costs should be consistent with industry standards and should 

include all administrative overhead costs such as employee benefits.

7. What is the total dollar figure for archeological value? 

Include this figure in the archeological value table.

Examples of Categories of Scientific Information Retrieval Operations in an Archeological 

Value Determination

The following are examples of categories of scientific information retrieval operations that might 

be included in an archeological value determination in a case involving unauthorized excavation 

at a Native American site. (It should be noted that the scientific information retrieval operations 

included in an actual archeological value determination will depend upon the specific 

circumstances of the case.) These operations can be categorized as planning, investigation, and 

post-investigation activities. The italicized operations are those specifically identified in the 

definition of archeological value in the ARPA uniform regulations. It is important to consider the 

initial consultation and the latter two, post-investigation activities.

 Consultation with SHPO, THPO(as appropriate), affiliated tribes (if any), and other 

consulting parties 

 Preparation of Research Design
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 Conducting Field Work

 Carrying Out Laboratory Analysis

 Preparation of Reports

 Repatriation of NAGPRA human remains and cultural items (if any) 

 Curation of artifacts and remains not repatriated under NAGPRA and records

This list of operations also can be used to illustrate some important concerns and potential 

problems in archeological value determinations. Operations and resulting costs that cannot be

justified should not be included. For example, laboratory analysis costs in an archeological value 

determination should be for the analysis of artifacts and specimens reasonably expected to be 

recovered in the scientific information retrieval strategy on which this determination is based. 

They should not include analysis costs for artifacts or specimens not observed in association with 

the damaged archeological resources since there would be no reasonable basis for projecting their 

recovery. For example, it would be speculative and inappropriate to include radiocarbon dating 

analysis costs when specimens expected to contain carbon are not present. By the same token, it 

would not be appropriate to include repatriation operations and costs unless the violation affected 

items protected by NAGPRA. 

Also note that all of the costs in the archeological value determination should be directly 

associated with scientific information retrieval operations and should be clearly distinct from 

operations carried out or projected as part of restoration and repair (see below) to avoid the 

“double counting” problem. Two examples illustrate this point. Archeological value laboratory 

analysis costs should be for artifacts and specimens expected to be recovered in retrieving 

scientific information from the archeological resources involved in the violation. Restoration and 

repair examination and analysis costs are those costs incurred or projected for actual damage to 

archeological resources. Similarly, repatriation and curation costs under archeological value 

should be for items subject to these requirements reasonably expected to be recovered in 

retrieving scientific information. Restoration and repair repatriation and curation costs are for 

items actually collected or seized as evidence. 
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Figure 3: Example of an Archeological Value Table Format. (Adapt as necessary based on 

circumstances of violation. Note that cost is shown only as an example.)

Archeological Value

[Category / Line Item] [Units / Unit Cost] [Line Item Cost]

Consultation with SHPO 4 hours @ $50.00/hour $200.00

Consultation with THPO(s)

or Other Parties 4 hours @ $50.00/hour $200.00

Preparation of Research Design __________________ _______

Conducting Field Work __________________ _______

Carrying out Analyses __________________ _______

Preparation of Reports __________________ _______

Curation __________________ _______

Total Archeological Value _______

Cost of Restoration and Repair

“Cost of restoration and repair” is defined in Section __.14 of the ARPA uniform regulations:

 Cost of restoration and repair. For purposes of this part, the cost of restoration and repair 

of archaeological resources damaged as a result of a violation of prohibitions or conditions 

pursuant to this part, shall be the sum of the costs already incurred for emergency restoration 

or repair work, plus those costs projected to be necessary to complete restoration and repair, 

which may include, but need not be limited to, the costs of the following: 

(1) Reconstruction of the archaeological resource; 

(2) Stabilization of the archaeological resource; 

(3) Ground contour reconstruction and surface stabilization; 

(4) Research necessary to carry out reconstruction or stabilization; 

(5) Physical barriers or other protective devices, necessitated by the disturbance of the 

archaeological resource, to protect it from further disturbance; 

(6) Examination and analysis of the archaeological resource including recording remaining 

archaeological information, where necessitated by disturbance, in order to salvage remaining 

values which cannot be otherwise conserved; 
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(7) Reinterment of human remains in accordance with religious custom and State, local, or 

tribal law, where appropriate, as determined by the Federal land manager; 

(8) Preparation of reports relating to any of the above activities (Section __.14(c)). 

Note that the definition specifies that restoration and repair costs “may include, but need not be 

limited to” those of the eight operations listed. Therefore, costs of other legitimate restoration and 

repair operations also may be included in the cost of restoration and repair determination. 

Examples of necessary restoration and repair operations that are not included in the definition's 

list of operations are the eventual repatriation or curation of archeological resource items seized 

as evidence (repatriation of NAGPRA items, curation of other archeological materials and the 

associated documentation).

It is important to note that there are two types of restoration and repair: emergency restoration and 

repair and projected restoration and repair. Emergency restoration and repair operations are those 

already carried out or those that have not been carried but will need to be carried to prevent 

further immediate loss or damage of the resource(s) or to complete the emergency operations. 

The field damage assessment procedures and preparation of the archeological resource damage 

assessment report are part of the emergency restoration and repair process (these operations are 

components of items (6) and (8) above). Projected restoration and repair operations are those that 

will need to be carried out, but do not need to be carried out immediately. Examples of projected 

restoration and repair are full reconstruction to the pre-violation condition of a prehistoric or 

historic structure damaged by vandalism and curation of items collected or seized as evidence.

Procedures for Determination of Cost of Restoration and Repair

The following procedures can be used to determine the cost of restoration and repair. An 

archeologist who has or will develop the required expertise should carry out these procedures.

1. Identify the emergency restoration and repair operations already carried out or that will 

be carried out to complete emergency restoration and repair. 

2. Identify the projected restoration and repair operations to be carried out in the future. 

3. Determine the line item cost of each of these operations. 

4. Determine the subtotals for emergency restoration and repair costs and projected 

restoration and repair costs and their sum, the total cost of restoration and repair. 

5. Develop a cost of restoration and repair table that shows the operations, their line item 

costs, the subtotals for emergency restoration and repair costs and projected restoration and 

repair costs and the total figure for cost of restoration and repair (see Figure 4). Note that 
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costs should be consistent with industry standards and should include all administrative 

overhead costs such as employee benefits. (Separate tables may be developed for emergency 

restoration and repair costs and projected restoration and repair costs; however, the 

recommended approach is to show these costs in a single table since they are components of 

the total cost of restoration and repair.) 

Examples of Categories of Emergency and Projected Restoration and Repair Operations in 

a Cost of Restoration and Repair Determination

The following are examples of categories of emergency and projected restoration and repair 

operations that would be included in a cost of restoration and repair determination in a case 

involving unauthorized excavation at a Native American site. (It should be noted that the 

restoration and repair operations included in an actual cost of restoration and repair determination 

will depend upon the specific circumstances of the case.) The italicized categories are those 

specifically identified in the definition of cost of restoration and repair in the ARPA uniform 

regulations.

Emergency Restoration and Repair

 Examination and analysis of archeological resources (field damage assessment) 

 Consultation with affiliated tribes (if any) 

 Stabilization of archeological resources and preparation of stabilization records 

 Preparation of reports (damage assessment report preparation) 

Projected Restoration and Repair

 Repatriation of NAGPRA items collected or seized as evidence (if any) 

 Curation of non-NAGPRA items collected or seized as evidence and the associated 

documentation 

 Consultation with SHPO, THPO and/or affiliated tribes (if any). 

Examples of important concerns and potential problems with restoration and repair determinations 

are also illustrated by this list. As in the case of an archeological value determination, all 

operations and costs in a restoration and repair determination should be fully justifiable. For 

example, the consultation with affiliated tribes as part of emergency restoration repair is required 

because looting of a Native American site constitutes an “inadvertent discovery” under NAGPRA. 

The consultation operation under projected restoration and repair may or may not be necessary 

depending on whether or not any of the other operations proposed in this phase would require 
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consultation. If they do not, the second episode of consultation is not justifiable and should not be 

included. 

As was also noted in relation to archeological value determinations, restoration and repair 

operations should not include any of the same operations projected as part of the scientific 

information retrieval strategy developed for the archeological value determination. Already 

discussed has been the necessity for a clear distinction between analysis, repatriation and curation 

operations potentially projected for an archeological value determination versus the analysis, 

repatriation and curation operations included in a restoration and repair determination. Other 

examples are provided by the consultation and report preparation operations potentially included 

in both determinations. Consultation in a restoration and repair determination should pertain 

directly to restoration and repair measures already carried out or projected to be necessary to 

complete this process. By contrast, this operation in an archeological value determination is the 

consultation that would be required prior to carrying out the projected scientific information 

retrieval strategy on which archeological value is based. Similarly, the report preparation 

operations in restoration and repair and archeological value determinations have two different 

purposes. The report prepared as part of emergency restoration and repair is a damage assessment 

report documenting the findings on damage to archeological resources actually caused by the 

violation. Alternatively, the report preparation operation in an archeological value determination 

pertains to the technical report that would be required on the findings of the projected scientific 

information retrieval strategy.
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Figure 4: Example of a Cost of Restoration and Repair Table Format (Adapt as necessary based 

on circumstances of violation. Note that cost is shown only as an example.)

Cost of Restoration and Repair

[Category / Line Item] [Units / Unit Cost] [Line Item Cost]

Emergency Restoration and Repair

Examination and Analysis 3 hours @ $50.00/hour $150.00

Consultation

Consultation with SHPO 4 hours @ $50.00/hour $200.00

Consultation with THPO(s)

or Other Parties 4 hours @ $50.00/hour $200.00

Stabilization

Labor ___________________ _______

Materials ___________________ _______

Preparation of reports ___________________ _______

Emergency Restoration and Repair Subtotal _______

Projected Restoration and Repair

Repatriation ___________________ _______

Curation ___________________ _______

Projected Restoration and Repair Subtotal _______

Total Cost of Restoration and Repair _______

Archeological Resource Damage Assessment Report Preparation

The field damage assessment and value and cost determination procedures carried out and the 

findings of this process are presented in an archeological resource damage assessment report. The 

archeological resource damage assessment report is an extremely important part of the overall 

criminal case report or civil case documentation because it provides the information necessary to 

prove that the archeological elements of a violation of ARPA (criminal or civil) or other 

applicable statutes are met. The report also is the basis for the author's testimony in a criminal or 

civil legal proceedings since it tells the attorneys involved in the case what this archeologist is 

prepared to testify about.

Report Topics

The topics that will be included in an archeological resource damage assessment report are listed 

below. These topics serve as an outline for planned reporting and as a table of contents for reports 

as they are drafted. Some resource damage assessment reports may not include all of these topics. 

The order of the sections in the report dealing with these topics is optional. For example, in some 
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reports, the archeological resource damage section precedes the field damage assessment 

procedures section. Also, the field damage assessment procedures and archeological resource 

damage sections are sometimes merged into a single section.

1. Introduction 

2. Archeological Resource Description 

3. Field Damage Assessment Procedures 

4. Archeological Resource Damage

5. Value and Cost Determinations 

6. Conclusions 

7. Summary 

Basic Stylistic Rules

Three basic stylistic rules should be observed in preparing archeological resource damage 

assessment reports. The first two are particularly critical because these reports must be read and 

understood by non-archeologists. For example, in a criminal case, non-archeologists who will 

read the report include the case agent, the prosecuting attorney and the defense attorney. The 

judge may also read portions of the report.

1. Write for non-archeologists, not other professional archeologists. 

2. Use clear, easily understandable language and explain archeological terms clearly (when 

a number of archeological terms will be used in the report, a glossary is recommended). 

3. Present all necessary information, but do not include unnecessary information. 

Procedures for Archeological Resource Damage Assessment Report Preparation

The following section-by-section listing suggests procedures that can be used to prepare an 

archeological resource damage assessment report. They are presented using the topical outline for 

such a report suggested above.

1. Introduction 
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Describe how you became involved in the case and the details of your participation.

2. Archeological Resource Description 

Show that all aspects of ARPA's archeological resource definition are met (refer to the ARPA 

definition of an archeological resource [see above] and the ARPA uniform regulations list of 

the “classes of material remains” considered to be archeological resources [see Appendix A]).

In establishing that the archeological resource has archeological interest, discuss both 

scientific interest (the scientific or historical importance of the resource) and humanistic 

interest (the importance of the resource to living people, both descendants of the people 

associated with the resource, if any, and the general public).

3. Field Damage Assessment Procedures 

Describe the field damage assessment procedures carried out.

4. Archeological Resource Damage 

Describe the damage to the archeological resources in terms of the acts prohibited by ARPA 

(see above) or other statutes and state the total amount of damage. This text may be 

supplemented with a table showing damage amounts by damage location if such a table will 

be of assistance in understanding how the total amount of damage was determined. 

Photographs and a map or maps should be included as figures to illustrate the extent of 

damage and profile drawings may also be useful for this purpose in cases involving 

excavations.

5. Value and Cost Determinations 

Identify the value and cost determinations carried out. For example, as was noted above, some 

cases may involve an archeological value and cost of restoration and repair determination, but 

not a commercial value determination. Also, in some cases, the archeologist who prepares the 

damage assessment report dealing with topics 1 through 4, may not have carried out any of 

the value and cost determinations or only some of them. For example, a government 

archeologist determines the cost of restoration repair, a contract archeologist determines 

archeological value and a third archeologist or an appraiser determines commercial value. In 

such a situation, there would be a report dealing with the procedures carried out by each 

person. (Note that there should be only a single dollar figure for each of the prosecution's 

value and cost determinations, even when different individuals determine the figures.) 

a. Commercial Value 
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Describe the procedures carried out in determining commercial value (see above) in text 

that clearly and convincingly explains the method(s) used in making this determination. 

This text is extremely important because it provides the rationale for the commercial value 

determination method(s) and supports the commercial value table(s) developed for the 

determination. At the conclusion of this text, state the total figure for commercial value 

that is also shown in the commercial value table(s).

b. Archeological Value 

Describe the procedures carried out in determining archeological value in text (or in the 

case of question 6, a table) that clearly and convincingly answers each of the seven 

questions asked in the procedures for determining archeological value (see above). This 

text is extremely important because it provides the rationale for the scientific information 

retrieval strategy and operations proposed to determine the archeological value figure and 

supports the archeological value table developed in making this determination.

1. Identify the archeological resource involved in the violation in text that 

references the "Archeological Resource Description" section of the report. 

2. Describe the archeological resource damage in text that references the 

“Archeological Resource Damage” section of the report. 

3. Describe both the quantitative (scale) and qualitative (methods) approach 

projected to retrieve scientific information from the identified archeological resource prior 

to the violation. 

4. Describe how the scientific information retrieval strategy projected for the 

identified archeological resource is proportional, both quantitatively (scale) and 

qualitatively (methods), to the effect of the violation. 

5. Describe the operations that would be involved in the scientific information 

retrieval strategy projected for the identified archeological resource and the justification

for each of these operations in text that clearly and convincingly explains what each 

operation is and why it would be necessary in terms of learning about the identified 

archeological resource. Show how any operations that appear similar to restoration and 

repair operations are included in the scientific information strategy for a different purpose 

(e.g. projected repatriation of NAGPRA items expected to be recovered in the scientific 

information retrieval strategy developed for the archeological value determination versus 

actual repatriation of NAGRPA items collected or seized as evidence as a component of 

restoration and repair). 
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6. Present the archeological value table developed in making this determination. 

7. State the total figure for archeological value that is also shown in the 

archeological value table. 

c. Cost of Restoration and Repair 

Describe the procedures carried out in determining the cost of restoration and repair (see 

above) in text that clearly and convincingly explains what each emergency and projected 

restoration and repair operation is and why it is necessary to carry it out to restore and 

repair the archeological resource. This text is extremely important because it provides the 

rationale for the restoration and repair operations identified in determining the cost of 

restoration and repair figure and it supports the cost of restoration and repair table 

developed in making this determination. Show how any operations that appear similar to 

archeological value operations are included as part of restoration and repair for a different 

purpose (e.g. actual curation of non-NAGPRA items collected or seized as evidence 

versus projected curation of non-NAGPRA items expected to be recovered in the 

scientific information retrieval strategy developed for the archeological value 

determination). At the conclusion of this text, state the total figure for cost of restoration 

and repair that is also shown in the cost of restoration and repair table.

6. Conclusions 

State the damage assessment report's conclusions. When figures have been developed for any 

or all of the three value and cost determinations, commercial value, archeological value and 

cost of restoration and repair, state these figures again in the Conclusions section.

7. Summary 

Summarize the damage assessment report and its findings.

Summary and Conclusions

This technical brief has discussed the legal basis and methods for archeological resource damage 

assessment. Archeological resource damage assessments provide the information necessary to 

prove that the archeological elements of a criminal or civil violation of ARPA are met according 

to the requirements of the law and the judicial system. Three specific topics have been 

considered. First, the elements of an ARPA criminal or civil violation have been identified. 

Second, because of its importance to proving the ARPA violation and in conducting damage 
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assessment, ARPA's definition of an “archaeological resource” has been presented. Finally, and 

most importantly, procedures for field damage assessment, value and cost determination and 

damage assessment report preparation have been recommended and explained. These procedures 

can be utilized to carry out these three components of the archeological resource damage 

assessment process.

Given its relationship to the law and the judicial system, the importance of the archeological 

resource damage assessment process cannot be overemphasized. The credibility of the 

archeological resource damage assessments produced for violations of ARPA will directly affect 

the outcome of these cases and the criminal or civil penalties imposed. Their importance is clearly 

demonstrated by the effect that the monetary determinations for archeological value, commercial 

value and cost of restoration and repair have on sentencing in criminal cases under the United 

States Sentencing Guideline that applies to ARPA and other federal crimes involving “Cultural 

Heritage Resources” (USSG § 2B1.5). Under this guideline, adopted by the United States 

Sentencing Commission in 2002, the sum of these three monetary determinations constitutes a 

“Specific Offense Characteristic,” a sentencing enhancement that increases the severity of the 

sentence as the total amount increases. (Note that this specific offense characteristic is based on 

the sum of all three values, archaeological value plus commercial value plus cost of restoration 

and repair, whereas the sections of the ARPA statute and the ARPA Uniform Regulations that 

apply to criminal and civil penalties allow consideration of only archaeological value plus cost of 

restoration and repair or commercial value plus cost of restoration and repair.) 

Therefore, archeologists, government attorneys, and resource managers who become involved in 

archeological resource damage assessment for violations of ARPA must fully understand this 

process and how to carry it out correctly. It is hoped that this technical brief will be of assistance 

to them in this endeavor and in the protection and preservation of archeological resources.
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Appendix A

ARPA Uniform Regulations Examples of Protected Archeological Resources

(Section __.3(a)(3)(i-x))

1. Surface or subsurface structures, shelters, facilities, or features, including, but not limited to: 

o domestic structures 

o storage structures 

o cooking structures 

o ceremonial structures 

o artificial mounds 

o earthworks 

o fortifications 

o canals 

o reservoirs 

o gardens or fields 

o bedrock mortars 

o grinding surfaces 

o rock alignments 

o cairns 

o trails 

o borrow pits 

o cooking pits 

o refuse pits 

o burial pits or graves 

o hearths 

o kilns 

o post molds 

o wall trenches 

o middens 

2. Surface or subsurface artifact concentrations or scatters 

3. Whole or fragmentary tools, implements, containers, weapons or weapon projectiles, 

clothing, and ornaments, including, but not limited to: 

o pottery 

o other ceramics 

o cordage 

o basketry 

o other weaving 

o bottles 

o other glassware 

o bone 

o ivory 

o shell 

o metal 

o wood 
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o hide 

o feathers 

o pigments 

o flaked stone 

o ground stone 

o pecked stone 

4. By-products, waste products, or debris resulting from manufacture or use of human-made 

or natural materials 

5. Organic waste, including, but not limited to: vegetal and animal remains, coprolites 

6. Human remains, including, but not limited to: bone, teeth, mummified flesh, burials, 

cremations 

7. Rock carvings, rock paintings, intaglios, and other works of artistic or symbolic 

representation 

8. Rockshelters and caves or portions thereof containing any of the above material remains 

9. All portions of shipwrecks, including, but not limited to: armaments, apparel, tackle, 

cargo 

10. Any portion or piece of any of the foregoing (Regulations __.3(a)(3)(i-x)) 
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Appendix B

SOCIETY FOR AMERICAN ARCHAEOLOGY PROFESSIONAL STANDARDS FOR 

THE DETERMINATION OF ARCHAEOLOGICAL VALUE, 2003

Introduction

The Society for American Archaeology (SAA) is an international organization dedicated to the 

research, interpretation, and protection of the archaeological heritage of the Americas. With more 

than 6,800 members, the society represents professional, student, and avocational archaeologists 

working in a variety of settings including government agencies, colleges and universities, 

museums, and the private sector.

The Archaeological Resources Protection Act of 1979 (ARPA) (Title 16, United States Code, 

Sections 470aa-470mm) and the ARPA Uniform Regulations establish “archaeological value” as 

one of three measures of the gravity of any criminal or civil violation of ARPA. In order to assist 

archaeologists performing archaeological damage assessments in ARPA cases, the SAA Task 

Force on Archaeological Law Enforcement has developed the following professional standards 

for the determination of archaeological value. The SAA Board strongly endorses these standards 

and encourages their use by professional archaeologists.

The determination of archaeological value is directly analogous to a routine professional practice 

that occurs daily in the United States. This is the process of developing real budgets for actual 

recovery of archaeological materials and data in mitigation or research projects that will be 

implemented through funding from contracts, grants, donations or other sources. In this sense, the 

determination of archaeological value is simply the structured application of this professional 

practice in order to provide information required by federal law.

The professional archaeologist who performs an archaeological value determination should be 

qualified to serve as an expert witness (Rule 702, Federal Rules of Evidence). In addition to 

meeting general professional standards in archaeology, required qualifications include regional 

expertise and experience with resources similar to the resource(s) involved in the archaeological 

value determination. Formal training in the preparation of archaeological value determinations is 

recommended.

The specific legal provisions governing the determination of archaeological value are as follows.

ARPA Criminal Offenses and Archaeological Value

The “Prohibited Acts and Criminal Penalties” section of ARPA specifies that “archaeological 

value” will be considered in determining whether the archaeological resource violation qualifies 
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as a felony offense (Title, 16 United State Code, Section 470ee(d)). Trafficking in archaeological 

resources also may constitute a violation of ARPA (Title 16, United States Code, Section 

470ee(b), (c)). Federal courts are required to use archaeological value in determining appropriate 

sentences for defendants convicted of ARPA violations or other federal offenses involving 

cultural heritage resources (United States Sentencing Guidelines, Section 2B1.5).

ARPA Civil Penalties and Archaeological Value

The “Civil Penalties” section of ARPA specifies that “archaeological value” will be considered in 

determining the amount of a civil penalty for an archaeological resource violation (Title 16, 

United States Code, Section 470ff(a)(2)(A)).

ARPA Prohibited Conduct

The ARPA Statute and ARPA Uniform Regulations specify that under certain circumstances 

(e.g., lack of ARPA permit), prohibited conduct includes the following acts: “excavate, remove, 

damage, or otherwise alter or deface” any archaeological resource, “or attempt to (do any such 

act)” (Title 16, United States Code, Section 470ee(a); Regulations, section __.4(a)). This 

prohibited conduct applies to both ARPA criminal offenses (Title 16, United States Code, Section 

470ee(d)) and ARPA civil penalties (Title 16, United States Code, Section 470ff(a)(1); 

Regulations, Section __.15(a)).

ARPA Definitions

Archaeological Resource

“The term “archaeological resource” means any material remains of past human life or 

activities which are of archaeological interest ... at least 100 years of age” (Title 16, 

United States Code, Section 470bb(1)). 

Material Remains

„“Material remains” means physical evidence of human habitation, occupation, use, or 

activity, including the site, location, or context in which such evidence is situated” 

(Regulations, Section __.3(a)(2)). 

Archaeological Interest

„“Of archaeological interest” means capable of providing scientific or humanistic 

understandings of past human behavior ...” (Regulations, Section __.3(a)(1)). 

Archaeological Value “ ... The archaeological value of any archaeological resource 

involved in a violation ... shall be the value of the information associated with the 

archaeological resource. This value shall be appraised in terms of the costs of the 

retrieval of the scientific information which would have been obtainable prior to the 
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violation. These costs may include, but need not be limited to, the cost of preparing a 

research design, conducting field work, carrying our laboratory analysis, and preparing 

reports as would be necessary to realize the information potential (Regulations, Section 

__.14(a)). 

Professional Standards for the Determination of Archaeological Value

Standard 1 - Identification of the Archaeological Resource(s) Involved in the ARPA 

Violation

The first step in determining archaeological value is to specifically identify the archaeological 

resource(s) involved in the ARPA violation (i.e., the archaeological resource(s) excavated, 

removed, damaged, or otherwise altered or defaced). Identification of the archaeological 

resource(s) involved in the violation must be based on:

a. the physical attributes of the archaeological resource(s), including spatial extent, 

and the discernable or inferable archaeological context of the resource(s) (this 

archaeological context could be an entire site, groups of features or strata, a single 

feature or stratum, single artifacts, or other commonly defined components of the 

archaeological record); 

b. the physical evidence of the prohibited conduct (i.e., excavation, removal, damage, 

alteration, or defacement) and its spatial extent; c. knowledge about similar 

archaeological resources based on professional experience; and d. other 

archaeological, historical, and ethnographic sources, including information from 

descendant communities, to the extent that these sources contribute to scientific 

knowledge. 

Standard 2 - Scale of Scientific Information Retrieval to be Used in Determining 

Archaeological Value

The ARPA Uniform Regulations specify that archaeological value “shall be appraised in terms of 

the costs of the retrieval of the scientific information which would have been obtainable prior to 

the violation” (Regulations, Section __.14(a)). Therefore, the appropriate scale of scientific 

information retrieval must be selected.

When the context of the archaeological resource(s) involved in the prohibited conduct cannot be 

ascertained more specifically than a site or location (e.g. unauthorized excavations in a site with 

no visible surface features), the scale of scientific information retrieval used in determining 

archaeological value must be based on the standard archaeological unit(s) that would at least 

encompass the spatial extent of the prohibited conduct (e.g., the volume of excavation resulting 
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from the prohibited conduct). A standard archaeological unit in this case means a metric unit 

(e.g., a 2 by 2 meter square).

When the context of the archaeological resource(s) involved in the prohibited conduct can be 

ascertained more specifically than a site or location (e.g., an archaeological feature at a site), the 

scale of scientific information retrieval also must be based on the standard archaeological unit for 

that context. A standard archaeological unit in this case means a cultural unit, such as a pithouse, 

fire pit, burial feature, or petroglyph panel (for which metric units would be used as appropriate).

In addition, the scale of scientific information retrieval must be proportional to the nature and 

extent of the prohibited conduct. For example, a small, shallow hole dug into a large pithouse 

would not warrant an archaeological value determination based on scientific information retrieval 

from the entire structure. If, on the other hand, a backhoe had been used to excavate most of the 

pithouse, scientific information retrieval for the entire structure may well be the appropriate scale. 

This proportionality concept relates the scale of scientific information retrieval to the magnitude 

of harm to the archaeological resource(s) resulting from the prohibited conduct.

Standard 3 - Methods of Scientific Information Retrieval

The methods of scientific information retrieval used as the basis for the archaeological value 

determination should be appropriate to the scale of the standard archaeological unit that has been 

selected. Depending on the conventions of archaeological practice in the area, examples of 

appropriate methods in a particular case involving unauthorized excavation would include a 

column sample, an excavation square, an excavation trench, a set of statistically based sample 

excavation units, or a block of contiguous excavation units. There also would be a comparable 

range of appropriate methods for cases involving other types of prohibited conduct.

In addition, the scientific information retrieval methods should be proportional to the nature and 

extent of the prohibited conduct. For example, the methods employed for scientific information 

retrieval from an entire pithouse would not be proportional contextually or justifiable 

scientifically relative to excavation of a small, shallow hole in the pithouse.

Standard 4 - Scientific Information Retrieval Standards

The methods of scientific information retrieval used as the basis for the archaeological value 

determination should meet current and customary professional standards appropriate to the 

archaeological resource, the archaeological context, and the standard archaeological unit in the 

region. The retrieval methods also should comply with applicable government agency standards 

(e.g., Secretary of the Interior's Standards and Guidelines) (Society for American Archaeology 

2003).
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References

Black, Henry Campbell

2005 Black's Law Dictionary. Abridged Eighth Edition. Bryan A. Garner, Editor in Chief. 

Thomson West, Eagan, Minnesota.

McAllister, Martin E.

1999 Commercial Value Determination for Commercially Valuable Artifacts Seized in the United 

States v. Jerry Lee Young Archaeological Violation Case (Bureau of Land Management Case 

No.: ID-913-01-98-001-001) at the Milner Site (10-JE-47), Federal Public Lands, Southern Idaho. 

Bureau of Land Management, Idaho State Office and Bureau of Reclamation, Snake River Area 

Office, Requisition Number 99-1S5E000-00062. Archaeological Resource Investigations, 

Missoula, Montana.

2006 The Society for American Archaeology Professional Standards for the Determination of 

Archaeological Value: Solving the Archaeological Value Determination in ARPA Cases. In 

Presenting Archaeology in Court: Legal Strategies for Protecting Cultural Resources. Sherry 

Hutt, Marion P. Forsyth and David Tarler, Eds. Alta Mira Press, Lanham, Maryland.

Society for American Archaeology 

2003 Professional Standards for the Determination of Archaeological Value. Electronic 

Publication. Society for American Archaeology, Washington, DC 

< http://www.saa.org/goverment/arpa.html >

United States Sentencing Commission

2002 Guidelines Manual. § 2B1.5 (Nov. 2002)

Author’s Acknowledgements

I wish to acknowledge the assistance of the following colleagues in preparing and editing this 

Technical Brief: Wayne Dance, Assistant United States Attorney, Department of Justice, United 

States Attorney's Office, District of Utah; Barbara Little, Archeologist, Department of the 

Interior, National Park Service, Washington Office; and Francis P. McManamon, Chief 

Archeologist and Departmental Consulting Archeologist, Department of the Interior, National 

Park Service, Washington Office. This Technical Brief is based on the class materials for 

Archaeological Resource Investigations' Archaeological Damage Assessment class. 

Archeologists who have attended this class have provided valuable comments that have helped to 

improve the class materials and I also wish to acknowledge their assistance.

NPS Archeology Program Acknowledgements
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We appreciate the time, expertise, and energy the author, and his associates have has put into 

providing professional training in a wide range of archeological resource protection topics. All of 

his past efforts have contributed importantly to this Technical Brief. We thank Carla Mattix, 

Attorney-Advisor of Division of Parks and Wildlife, Office of the Solicitor, Department of the 

Interior, for her expert reading of drafts and suggestions that have clarified the text. We thank 

David Tarler and Sherry Hutt of the National NAGPRA program for reviewing and commenting 

on the final draft. We also thank four anonymous expert reviewers for their informed reviews of 

the draft of the text and suggestions which have improved the final product.