The Other Historic
Preservation Statutes:
Archaeology
ARPA and NAGPRA
Further Protection of Archaeological
Sites: Is It Necessary?
 NHPA compels Feds to be “good stewards” of
sites on federal land, but it does not give
statutory authority to prosecute individuals
who disturb archaeological and
paleontological sites or remove artifacts from
public land.
 The 1906 Antiquities Act (16 U.S.C. 431-433)
was the first national law designed to help
protect archaeological sites, but was found to
have no “teeth” in the prosecution of those
who disturb sites.
The Antiquities Act of 1906
Scope:
 Protection of sites with
historic and scientific
interest.
 Covered Federal lands
and trust territory
(Indian lands).
 Created a permit
system for investigation
of archaeological sites.
Management Responsibilities Under
The Antiquities Act
 To establish the
recognition of historic
and archaeological
sites.
 Criminal prosecution to
protect archaeological
sites.
 Administer research
permits.
Problems With the Antiquities Act
 Original sanctions for violators was a fine of
no more than $500 and/or up to 90 days in
jail (the average yearly income in 1906 was
$520); it was viewed as a misdemeanor.
 With time, the fine amount was seen as trivial,
and few cases were brought to trial.
 Between 1906 and 1979, there were only 18
convictions under The Act, four of which were
about petrified wood! Total fines during this
time were $4,000.
United States vs. Diaz: The First
Challenge to the Antiquities Act
 In 1972, Ben Diaz removed numerous masks
and religious items from a cave on the San
Carlos Indian Reservation in Arizona
 Diaz tried to sell the items, and was
apprehended by the FBI.
 Even though the artifacts were less than 5
years old, they were considered “antiquities”
because they were used in contemporary
rituals of ancient origin.
The Plot Sickens. . .
 Diaz was convicted and appealed to the U.S.
District Court where the conviction was
upheld.
 Diaz appealed to the Ninth Circuit Court of
Appeals, complaining that the definition of
antiquity should not be so vague.
 The Court agreed and declared the
Antiquities Act to be unconstitutional (it could
no longer be used in Alaska, Arizona, Hawaii,
Idaho, Montana, Oregon, and Washington).
1974 to 1979: A Bleak Time For
Archaeological Site Protection
 United States vs. Jones et al.: three men
were caught looting burials on the Tonto
National Forest in Arizona.
 Only general crimes statutes could be used to
bring charges against the men, but the
defense argued that the general criminal
code could not be used since there was a
specific law to address the protection of
archaeological sites! The case was
dismissed.
Ninth Circuit Court to the rescue. . .
 The United States prosecutors appealed the
case to the Ninth Circuit Court.
 The Court found that both general and
specific charges could be brought against
anyone committing crimes on Federal lands.
 Charges were reinstated.
 During this time, the archaeological
community (with the Society for American
Archaeology) mobilized to come up with a
better statute designed to protect sites.
Archaeological Resources Protection
Act of 1979 (16 USC 470aa-470mm)
Prohibited acts:
 “. . .excavate, remove, damage, alter or
deface or attempt to. . .”
 “. . .sell, purchase, exchange, transport,
receive, or offer to. . .”
 “. . .remove archeological resources in
violation of State or local law and move them
in interstate or foreign commerce.”
 “. . .hire, counsel, or procure another to
violate the law.”
Elements of ARPA
 Definition of an archaeological resource as an
item of past human existence or
archaeological interest over 100 years of age.
 Such sites or objects on public or Indian
lands.
 Only is a permit is issued by the managing
agency can anyone disturb or remove
artifacts (i.e., a professional archaeologist).
Examples of archaeological resources
ARPA Penalties
 Penalties are based on archaeological or commercial
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value PLUS the cost of restoration and repair.
Since the 1988 amendments any ARPA violation is
a felony if damage is more than $500.
First offense: $250,000 and/or 2 years in jail.
Second offense: $250,000 and/or 5 years in jail.
Forfeiture of materials, equipment, and vehicles.
ARPA Examples from Idaho: Weston
Canyon Rockshelter
 Local government received funds from NRCS
to install pipeline along road on Forest
Service Land.
 Important archaeological site located
adjacent to pipeline path (Weston Canyon
Rockshelter).
 Despite “sensitivity” training, bulldozer
operator plowed through the archaeological
deposit; technically, this was an ARPA
violation.
ARPA in Idaho: The Jerry Lee Young
Case
 Jerry Lee Young had a reputation of wanton
looting of sites in Idaho and northern Nevada
stretching back 30 years.
 Young owned the “Idaho Heritage Museum”
where thousands of artifacts collected from
public lands were displayed.
 Young was identified by two young men in
1997 looting a rockshelter on public land near
Milner Dam on the Snake River.
The investigations begin. . .
 Since it appeared looting of the site was on
going, hidden cameras and tape recorders
were secreted around the rockshelter.
 Crime-scene techniques were used to collect
evidence from the looted interior of the
rockshelter, including casts of footprints and
DNA samples from cigarette butts.
 Enough evidence was gathered to convince a
federal judge to issue a search-and-seizure
warrant for Young’s home and museum.
Evidence mounts. . .
 Young’s home was filled with artifacts, many
with soil still attached.
 Looting equipment (screens, shovels, buckets
of midden, etc.) was found in the backyard.
 Photographs of Young and friends actively
digging at the rockshelter, complete with date
stamps!
 Museum contained artifacts clearly from
public lands.
Charges filed, then the plea bargain
 When the investigation was completed, there was
evidence to support that Young returned to Milner
Dam Rockshelter 22 times!
 Ultimately, 10 separate ARPA felony charges were
filed against Young.
 Young pleaded not guilty, but after discovery and
deals with federal prosecutors, pleaded to a single
felony ARPA charge.
 Young was required to forfeit his truck and
equipment, pay nearly $40,000 in restitution to the
Government, spend 6 months in jail, and 7 months
home detention.
Native American Grave Protection and
Repatriation Act of 1990
Purpose: The Act addresses the rights of lineal
descendants and members of Indian Tribes
and Native Hawaiian organizations to certain
Native American human remains and cultural
items
Definitions:
 Human remains: the physical remains of a
human body, including but not limited to
bones, teeth, hair, ashes, or mummified or
otherwise preserved soft tissue of a person of
Native American ancestory.
NAGPRA Definitions, continued. . .
 Associated funerary object: items that, as
part of the death rite or ceremony of a culture,
are reasonably believed to have been placed
intentionally at the time of death or later with
or near individual human remains that are in
the possession or control of a museum or
Federal agency.
 Unassociated funerary object: same as
above, but without the human remains.
NAGPRA Definitions, continued. . .
 Sacred objects: items that are specific
ceremonial objects needed by traditional
Native American religious leaders for the
current practice of traditional Native American
religion by their present-day adherents.
 Objects of cultural patrimony: items having
ongoing historical, traditional, or cultural
importance central to the Indian tribe itself,
rather than property owned by an individual
Tribal member.
Cultural Affiliation
 A relationship of shared
group identity which can
reasonably be traced
historically or
prehistorically between
members of a presentday Indian Tribe or
Native Hawaiian
organization and an
identifiable earlier
group.
Participants in NAGPRA
 Federal Agencies (except Smithsonian).
 Museum that has NAGPRA items and
receives federal funds.
 Indian Tribes.
 Native Hawaiian organizations.
Management Responsibilities:
Agencies and Museums
 Consult with Indian Tribes and Native
Hawaiian organizations about cultural
affiliation and repatriation.
 Provide summaries of collections that may
contain NAGPRA items by November 16,
1993.
 Provide item-by-item inventory of such items
by November 16, 1995.
Management Responsibilities:
Agencies and Archaeologists
 Inadvertent discovery of NAGPRA items: stop
work, protect objects, notify culturallyaffiliated tribes, and agree about disposition
of the remains (can resume in 30 days if
there is no tribal response).
 Administer intentional, legal excavation
(under ARPA); tribal review of excavation
plans.
 Develop agreement with Native groups about
cultural affiliation, artifacts, kind of analyses
allowed, curation, and inadvertent discovery.