“La propriété, l’étude scientifique
et la conservation du patrimoine archéologique
- droit canadien et américain”
Robert K. Paterson
Professeur de droit
Université de la Columbie-Britannique
La patrimoine archéologique et son droit
Questions juridiques, éthiques et culturelles
Paris, Musée du quai Branly
9 et 10 octobre 2012
Canada
Canada and the United States, though geographical intimates, have developed many
legal, political and cultural differences during their short histories. From an archaeological
perspective, however, they do present some commonalities. Both are large in land mass and
contain many archaeological sites that are remote from major population centres. Both contain
large areas of land owned by governments (either federal, state or provincial). In Canada this
amounts to almost 90 percent of total land area – in the United States the figure is lower – at 40
percent. In both countries there are significant but often isolated indigenous populations, with
sometimes the same group living in both countries.
When Canada became a confederation in 1867 the Constitution Act of that year vested
jurisdiction over “property and civil rights” in the provincial legislatures. Jurisdiction over
“Indians, and lands reserved for Indians” was vested in the federal Parliament. This means that
the provincial legislatures cannot enact laws concerning Indians, but provincial laws of “general
application” apply to them unless overridden by a federal statute or a treaty (Indian Act, s. 88).
Most archaeological activity in Canada did not take place until the mid-nineteenth century. John
W. Dawson is considered the father of Canadian archaeology and his work mostly consisted of
collecting Indian artifacts.
In 1910 the Geological Survey of Canada established an
Anthropological Division, with the aim of preserving information about Canada’s Aboriginal
peoples. Harlan I. Smith was its first archaeologist.
What probably most distinguishes archaeology in Canada and the United States from
other countries are the legal and political changes involving their indigenous peoples over the
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last thirty or so years.
These originated in political movements like the National Indian
Brotherhood in Canada (1969) and the American Indian Movement in the United States (1968).
Out of these sorts of initiatives have come major legal and constitutional changes – such as the
Native American Graves Protection and Repatriation Act (1990) in the US and the constitutional
recognition and affirmation of Aboriginal and treaty rights in Canada (Constitution Act 1982, s.
35).
In the context of these changes, North American indigenous peoples have sought to
challenge the traditionally-held view of archaeologists that the past was something that belonged
to everyone (public-domain). Native peoples have asserted their group rights to graves and other
sacred sites, ancestral remains and even certain artifacts.
The current situation is one of
transition. Some indigenous groups have developed co-operative relationships with professional
archaeologists but others have yet to do so. Increasingly, indigenous people are themselves
becoming qualified archaeologists and have created their own historic preservation programs and
protocols.
The earliest federal Canadian government initiative affecting archaeology was the
creation, beginning in 1885, of national parks – the first being Banff National Park in Alberta.
In 1919 the Historic Sites and Monuments Board was established to advise on the
commemoration of sites considered to be of national importance. In 1930 the Canada National
Parks Act established what is now known as the Parks Canada Agency to develop areas of
significance to Canada’s natural and cultural heritage.
There were also provincial initiatives in parallel to these federal ones.
In British
Columbia, the Historic Objects Preservation Act of 1925 sought to protect archaeological sites
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such as petroglyphs and pictographs.
Other initiatives by archaeologists led to the
Archaeological and Historic Sites Protection Act of 1960 which obligated property developers to
conduct salvage work on threatened sites and established a permit system for archaeological sites
on designated and provincial Crown land. Other provinces enacted similar legislation, often with
the support of the Canadian Archaeological Association which was established in 1968. The
province of Alberta has one of the strictest fossil protection laws in the world. Excavating fossils
requires special permits available only to professional palaeontologists:
see Historical
Resources Act, R.S.A. 2000, c. H-9.
Canadian engagement with international treaty-making did not emerge until certain
constitutional developments in the 1930s and 1940s. Prior to this time treaties affecting Canada
were those entered into by the United Kingdom on its behalf. Unlike civil law countries, such as
France and Spain, international agreements entered into by Canada do not become part of
Canadian law until enacted in the form of legislation. These statutes will either be at the federal
or provincial level, depending on their subject-matter. Thus, treaties affecting First Nations
(Indians) can only be enacted by Parliament.
The creation of UNESCO in 1946 saw the emergence of several treaties impacting
archaeology and cultural heritage in general. Canada has become party to the majority of these
agreements and enacted several into law – all at the federal level. Amongst these are: the
Convention for the Protection of the World Cultural and Natural Heritage (1972) under which
fifteen Canadian sites have been added to the World Heritage List; the Convention on the Means
of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural
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Property (“UNESCO 1970”) which Canada signed and enacted in 1978 and 1977 respectively;
and the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict
(1954) and its two protocols which Canada enacted in 2005.
Canada and the United States executed a bilateral agreement in 1997 (pursuant to
UNESCO 1970) which protected against the illegal export from Canada to the US of cultural –
including archaeological – material. The agreement arose out of Canadian concerns about the
vulnerability of remote archaeological sites – particularly in the arctic. Canada’s request that the
agreement be renewed was declined by the US and it lapsed in 2002. As a result there is no
arrangement in place between Canada and the US to ensure the return of ethnographic and
archaeological material that is smuggled out of Canada.
There is no comprehensive federal statute dealing with archaeological resources on federal
Crown or Indian land. The Parks Canada Agency is the principal federal government agency
dealing with archaeological issues through various policies and directives. There are also a
number of federal statutes that affect archaeological resources in varying ways. These include:

Indian Act (1876), section 91 (1927) which criminalizes removal or damage to Indian
graves, carvings and rocks embellished with paintings or carvings (on reserves).

Historic Sites and Monuments Act (1953) recognizes the 1919 Board (above) and has
led to over 1500 national historic sites being designated – sometimes now Aboriginal.
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
Canada Shipping Act (2001) affords protection for wrecks. [Canada has not signed
the 2001 UNESCO Convention on the Protection of the Underwater Cultural
Heritage.]

Territorial Lands Act (1950) regulates Crown land in the Northwest Territories,
Yukon and Nunavit, including the protection of archaeological resources.

Canadian Environmental Assessment Act (2012) is a new version of previous federal
environmental assessment legislation which seeks to efficiently assess the effects of
proposed developments on the environment. Aboriginal resources are part of the
environmental assessment process. The provinces have similar laws and compliance
is usually harmonized.

Cultural Property Export and Import Act (1997) requires export permits, inter alia,
for archaeological material. This led to criticism from archaeologists who claimed
the export controls were based on the idea that such material could be assigned a
monetary value which they contend might enhance a market for it.
The opposition of the Canadian Archaeological Association to the perceived effects of the export
legislation led the federal government to commission a report on the management of
archaeological resources on federal land. This resulted in a draft statute – the Archaeological
Heritage Protection Act, 1991. The law was not enacted, primarily due to opposition from
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Aboriginal peoples, who saw it as an assertion of Crown ownership over their archaeological
resources.
Since this failed federal initiative there has been one other – the Historic Places Initiative
of 1999 has created the Canadian Register of Historic Places and Standards and Guidelines for
the Conservation of Historic Places in Canada (2003).
A Historic Places Act was also
proposed. This would have accorded legal protection to archaeological sites on all federal
Crown land. Again, the issue of whether Indian reserves would be covered was a controversial
issue. The proposal did not include tax incentives similar to those available under US law. This
law has not been proceeded with by the present Conservative party government, perhaps because
it was an initiative of an earlier Liberal party administration.
Canada has the dubious distinction of being the only major industrial nation without
comprehensive legislation governing its archaeological and other cultural resources. Instead, a
patchwork of federal and provincial laws secures protection of archaeological resources across
Canada. The reasons for this are varied and include the failure to resolve Aboriginal concerns
over title to and management of such resources and the highly charged and legally uncertain
nature of federal-provincial relations in Canada.
United States/États-Unis
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Like Canada, the United States is a federal state with legislative powers divided by the
Constitution between the United States and the individual states. Also, like Canada, there is no
express constitutional reference to cultural heritage but various constitutional traditions and
conventions explain the pattern of laws that now exists.
The US Constitution provides that Congress may regulate commerce with the Indian
tribes. Tribes in the US are seen as having greater sovereignty over their own affairs than is true
in Canada. There has also been a long history of attempts by the states to regulate tribes but the
courts have always ruled in favour of tribal sovereignty.
The first law to offer protection of sites on federal land was the Antiquities Act of 1906.
The law imposed criminal penalties for the unauthorized excavation or destruction of historic or
prehistoric ruins on federal lands. It also allowed the President to establish national monuments
and to preserve historically or scientifically important objects located on federal land. Thus, the
Antiquities Act was used by Theodore Roosevelt to establish Grand Canyon National Monument
in 1908. The National Park Service (“NPS”) was created in 1916 to manage significant cultural
sites on federal land. The NPS has become the leading federal government agency for cultural
preservation and was formally established in 1935 by the Historic Sites Act.
Somewhat like Canada, US laws affecting archaeology were largely non-existent until the
1960s. the National Historic Preservation Act of 1966 established the Advisory Council on
Historic Preservation and created a National Register of Historic Places. Matching grants, to
support preservation efforts, are available to all levels of government – including American
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Indian tribes – that wish to participate in the national preservation program. Perhaps most
importantly of all, the law provides tax benefits, such as income tax credits, deductions and
accelerated depreciation for designated properties. Such incentives are not available in Canada
but have played a major role in the preservation of heritage sites in the United States. The
enactment of this legislation also served to spur many similar state laws protecting heritage
buildings and sites on state land.
The Antiquities Act of 1906 has been largely superseded by the Archaeological Resources
Protection Act of 1979. The 1979 statute reasserts federal controls over archaeological resources
on federal lands and increases penalties. The term “archaeological resources” is defined to
include “any material remains of past human life or activities which are of archaeological
interest” and are at least one hundred years old. In United States v. Gerber (7th Cir. 1993) the
defendant had transported across state lines Indian artifacts that he had stolen from a burial
mound on privately owned land in violation of Indiana criminal trespass and conversion laws.
He was, however, charged under the 1979 federal legislation that made it a misdemeanor to
transport archaeological resources across state lines that were acquired in violation of state or
local laws. The court rejected his argument that the 1979 law could not apply to resources that
had been found on private, and not federal or Indian, lands.
The United States has enacted UNESCO 1970 in the form of the Convention on Cultural
Property Implementation Act of 1983. When it signed the UNESCO Convention, the US entered
a reservation that it would not enforce foreign cultural property export controls solely on the
basis of illicit trafficking. Instead, the US relies on a provision in the UNESCO Convention that
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allows other countries to request US import controls be imposed when certain cultural property is
jeopardized through illicit trade. This was the basis for the 1997 agreement with Canada that has
now expired. There are several such agreements now in place but they have the effect of
protecting foreign and not US cultural property.
The American Indian Religious Freedom Act of 1978 protects access to Native American
sites, use and possession of sacred objects and the practice of sacred ceremonies. The law is
largely symbolic since it only applies to federal agencies and has not been interpreted by US
courts as establishing new indigenous rights.
Probably the best-known US law concerning archaeology is the Native American Graves
Protection and Repatriation Act of 1990 (NAGPRA).
Of any federal law, NAGPRA has
probably had the most significant affect on archaeology in the US and on museums with
collections of Native American cultural material. The law was seen basically as being about the
human rights of American Indians and Native Hawaiians and not about traditional common law
rules relating to property.
NAGPRA substantially increased penalties for trafficking in Native American remains
and cultural items – including in international trade. This was in recognition of the substantial
risks than development and technology were posing to indigenous sites. NAGPRA also sets out
procedures for excavation and removal of such material from federal and tribal lands.
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Of all its provisions, probably the best known is the elaborate scheme NAGPRA sets up
for the repatriation of American Indian and Native Hawaiian human remains and cultural items
to individuals and tribes by museums (in receipt of federal funding) and federal agencies. As a
preliminary measure these institutions had to produce inventories of their collections by 1995 so
that eligible claimants knew what could be the subject of a claim. Over 1,000 museums and
agencies have sent in such inventories (which must be updated as new material is acquired).
The repatriation process under NAGPRA is contained in the legislation and regulations
published under it. Only certain persons have standing (Indian tribes – there are nearly 600
federally recognized – Native Hawaiian organizations and lineal descendants). Only certain
sorts of material can be the subject of a repatriation request (human remains, funerary and sacred
objects, and objects of cultural patrimony). Contested claims are heard by the NAGPRA Review
Committee which makes recommendation to the President. There have been some judicial
challenges to repatriation rulings under the statute. About 55% of human remains in published
inventories have been repatriated under the law.
There is no legislation in Canada dealing with the repatriation of First Nations cultural
material. In Canada such returns have occurred voluntarily by museums on an ad hoc basis or,
rarely, pursuant to the terms of modern treaties with individual First Nations.
The most infamous court decision involving NAGPRA was the so-called “Kennewick
man” case: Bonnichsen v. United States. Human remains were discovered in 1996 on federal
land on the bank of the Columbia River in Washington State. The remains were radiocarbon
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dated and found to be between 8,000 and 9,000 years old. This makes them amongst the oldest
human remains ever discovered in North America and resulted in a high-level of interest
amongst the scientific community.
The American Indian tribe in this area (the Umattila)
demanded possession of the remains for burial but they had been sent to the Smithsonian whose
scientists sought access and started court proceedings. They and others believed the remains
were evidence of a type of human unrelated to modern American Indians. Thus, the issue before
the federal Appellate Court was whether NAGPRA applied – were the remains that of a “people
or culture that is indigenous to the United States”? The 9th Circuit Court found that they were
not and that Congress had not intended to target human remains that were unrelated to modern
American Indians. In doing so the court dismissed the possible relevance of Indian oral history
in establishing the necessary relationship to a living people.
For many archaeologists the decision was an affirmation of the scope they sought to
study newly-uncovered remains. But despite this one case, many American Indian remains in
institutional collections (in both the US and Canada) have been returned to indigenous claimants.
France has participated in this process by changing its law to allow the return of tattooed Maori
heads to New Zealand. Overall, however, vastly more cultural materials remain in museum
collections than have been recently returned. It may be that repatriation is a phase in the ongoing
reconciliation process with indigenous peoples.
In the meantime, American and Canadian laws serve as examples for each other of what
can be learnt as well as reveal significant gaps in what could be comprehensive schemes for the
protection of the archaeological resources of both countries.
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