19 Sept 2021| Deana Davis
The looting of archaeological sites has been an ever profitable enterprise. In fact, illegal trafficking is so lucrative that law enforcement officials have ranked it fourth behind that of drugs, guns, and money laundering.[i] However, the United States government has had difficulties regulating such trafficking. The Antiquities Act of 1906 was the initial legislation Congress passed intended to protect archaeological resources on federal lands.[ii] However, several court decisions ruled against enforcement of the Antiquities Act, and most importantly in 1974 in United States v. Diaz the Ninth Circuit found that the penalty provisions of the Act were unconstitutionally vague, and thus unenforceable.[iii] While the government has been aware of the importance of cultural heritage and sought to protect artefacts as well as historic sites since the late 19th century, the U.S. had not had adequate legislation to curb looting and vandalizing of archaeological sites until the passing of the Archaeological Resources Protection Act (ARPA) in 1979.[iv] It had in fact taken the joint lobbying efforts of conservationists, archaeologists, prosecutors, and leaders of Native American tribes to ensure that a stronger protection of cultural resources of archeological importance was passed in the form of the ARPA.[v]
The purpose of the ARPA is:
“to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands…"[vi]
Furthermore, in a reflection of the cooperation among the initiators of the legislation, the ARPA is meant to:
“foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals . . .”[vii]
Primary Aspects of the Law
The ARPA deems resources of archaeological interest found on public lands to belong to the federal government, and materials found on Native American lands are protected as belonging to the respective Native American tribes. Accordingly, the ARPA’s first step in protecting archaeological resources is through its requirement of obtaining permits to “excavate or remove any archaeological resource” and “activities associated with” excavation and removal, much like the Antiquities Act.[viii] With respect to permitting, the ARPA differentiates between “public lands” and “Indian lands”; it is the federal land manager’s responsibility to assign permits for “public lands” and determine the presence of several elements, such as whether the applicant is qualified and the activity to be undertaken is meant to further archaeological knowledge in the public interest.[ix] In contrast, special provisions apply for permits requested on Native American lands.[x]
Besides providing guidance on permits, the ARPA prohibits the trafficking of archaeological resources that were removed wrongfully under federal law and makes illegal the trafficking in “interstate or foreign commerce” of resources which were obtained wrongfully under state or local law.[xi]
In the event of the absence of a permit, its violation, or of wrongfully trafficking resources, the ARPA outlines civil and criminal penalties for “unauthorized excavation, removal, damage” of archaeological resources and trafficking of such resources, providing greater enforcement of protection for resources than the Antiquities Act.[xii]
The main and most commonly used enforcement procedure outlined by the ARPA is that of criminal penalties. Initial violations of “knowingly” violating ARPA carry a maximum fine of $10,000 or imprisonment of up to a year, or both.[xiii] If the “commercial or archaeological value” of the resource and the “cost of restoration and repair” exceeds $500, then the maximum fine possible is $20,000 or imprisonment of not more than two years, or both.[xiv] Subsequent violations carry a fine of up to $100,000 or a maximum of five years in prison, or both.[xv]
While criminal penalties came into effect upon the signing of the ARPA in 1979, the ARPA provided that the Secretaries of the Interior, Defense, and Agriculture, and the Chairman of the Board of the Tennessee Valley Authority, after consulting “other Federal land managers, Indian tribes,” and other state agencies were to “promulgate such uniform rules and regulations as may be appropriate.”[xvi] The directed agencies adopted the Uniform Regulations in 1984, with the Department of the Interior Supplemental Regulations being adopted in 1987, thus bringing the civil penalties outlined in the ARPA into force.[xvii] Civil violations have the same cost calculations as the criminal provisions and outline double penalties for subsequent violations.[xviii] While criminal prosecutions under the ARPA are more common, those cases which do not fall under criminal penalties become civil suits.[xix] For example, in 1985 the National Park Service statistics indicate 15 civil cases with $17,861 collected as fines.[xx] There are several benefits to be had in holding a civil rather than criminal prosecution, such as the burden of proof is lower and civil trials can be held without juries and the potential problems accompanying jury trials for criminal penalties.[xxi]
The ARPA provides for forfeiture of illegally sourced archaeological materials. Such materials, as well as the vehicles and tools used to retrieve the materials, may be forfeited if a person receives a criminal conviction or is sentenced a civil penalty, and a court determines that the resources in question were involved in the violation.[xxii] If the penalties collected and the forfeited materials relate to Native American lands, then the penalties will be paid and materials transferred to the respective Native American land or tribe.[xxiii]
Additionally, the ARPA deems confidential any information “concerning the nature and location of any archaeological resource for which” a permit is required and thus cannot be disclosed to the public.[xxiv] The ARPA also allows for the “exchange” between “suitable” institutions, such as museums or universities of “archaeological resources removed from public lands and Indian lands,” though the placement of resources in institutions taken from Native American lands is subject to the consent of the respective tribes.[xxv]
What the Law Impacts
First, the ARPA applies to “archaeological resources,” which include “any material remains of past human life or activities which are of archaeological interest.”[xxvi] This ranges from objects as “pottery, basketry, bottles…weapon projectiles, tools’ to ‘structures…rock paintings” which are “at least 100 years of age.”[xxvii]
The ARPA has the potential to protect a wide range of objects and sites based on the term “material remains.” There are limits, however. The object must be of “archaeological interest.” Therefore, geological sites that have importance in Native American culture, for example, are not readily covered by ARPA as they are not of “archaeological interest.”[xxviii]
Furthermore, Congress drafted the time limit of a minimum of 100 years deliberately so as to avoid the problem of enforcement as encountered with the Antiquities Act of 1906. The Antiquities Act had aimed to protect “objects of antiquity,” yet this term was challenged in cases, such as United States v. Diaz.[xxix] When the defendant in Diaz took ceremonial masks from a reservation that were made in 1969 or 1970, four years prior to the court’s decision, the government argued that an object’s religious significance can qualify it as an object of antiquity despite its recent creation. However, the Ninth Circuit ruled the Act violated the Fifth Amendment Due Process clause as unconscionably vague.[xxx] To avoid such confusion and keep penalty provisions enforceable, Congress set a clear threshold of 100 years. While this threshold may exclude objects which could be of “archaeological interest,” the threshold is a compromise Congress intended to reach in order to ensure the Act’s effectiveness.
Secondly, the ARPA allows the US government jurisdiction to protect archaeological sites on federal and Native American land. Federal, or public, lands include national parks and forests. Therefore, the permit requirements and penalties of ARPA are applicable on all federal and Native American lands.
The ARPA also prohibits trafficking in archaeological resources in “interstate or foreign commerce” in violation of any state or local law.[xxxi] The government has used this provision to litigate cases involving removal or vandalism of resources on private lands, though this approach has been challenged in cases, such as United States v. Gerber in 1993. The defendant in Gerber stole artefacts from an archaeological site on private land and was charged with violating the interstate commerce prohibition.[xxxii] Nevertheless, the Seventh Circuit held that the ARPA is “limited to cases in which the violation of state law is related to the protection of archaeological sites or objects.” [xxxiii] Considering also the legislative history indicating Congress’ intentions of including private lands under the Act, the court allowed the ARPA to withstand the constitutional challenge to its applicability to private lands.[xxxiv]
The interdependent nature of the ARPA’s regulation and implementation reflects its collaborative origins. Congress gave the Departments of the Interior, Agriculture and Defense, as well as the Tennessee Valley Authority and “other Federal land managers, Indian tribes, representatives of concerned State agencies” the power to promulgate regulations under ARPA.[xxxv]
Enforcement of the ARPA, meanwhile, is an interagency and interprofessional task shared among field archaeologists, which often are the first to learn of an ARPA violation, law enforcement agencies, and prosecutors.[xxxvi] Since the passing of the ARPA, numerous educational resources have become available for law enforcement covering a range of topics from investigating to prosecuting violations.[xxxvii]
Overall, the ARPA is a significant piece of legislation that corrected the notable lack of protection for archaeological and cultural resources. In contrast to the Antiquities Act, the ARPA is able to offer protection to a wider range of archaeological materials without being unconstitutionally vague, and covers “artifactual, contextual, and environmental information,” which is especially useful in an age of increased use of various scientific methods in archaeological research.[xxxviii]
The ARPA is also novel in that it provides a means of enforcing its provisions on “museums” that operate in illegally sourced objects by so-called “pothunters” based on the Act’s trafficking prohibition.[xxxix] Furthermore, the ARPA provides rewards for a person “who furnishes the information” leading to a civil or criminal violation, for which the person will receive a half of the corresponding penalty, “not to exceed $500.”[xl]
However, Congress imposed some limits to ARPA’s effectiveness, such as the 100- year limit and that of not criminalizing possession of illegally obtained artefacts, which hamper the effectiveness of the ARPA’s protection measures. Moreover, to convict a defendant of a criminal violation of the ARPA, the government must prove the presence of specific intent, which has hampered convictions in some cases, such as in United States v. Lynch, where the removal of a 1400-year old skull was found to not violate the ARPA.[xli]
The effectiveness of the ARPA in deterring pothunters and looters has, however, been questioned. While the ARPA was initially viewed as “a very real and tangible solution to a major part of the . . . problem,” looting “skyrocketed” in the 1980s and in 1989 at least ninety percent of Native American sites in the Southwest were looted.[xlii] The initial rate of jury trial convictions was not comforting either; throughout the first eight years after Congress passed the ARPA, only one jury felony conviction occurred.[xliii] The problem that prosecutors have is convincing the judge and jury of the seriousness of the crime.[xliv] Such difficulties persist in recent years. In 2009, for example, after the FBI and the Bureau of Land Management issued search warrants on a family involved in an operation of stealing 256 artefacts from Native American land with a value of $335,685.[xlv] Despite the fact that two individuals had previously been convicted under a state statute protecting Native American graves, the judge chose not to adhere to sentencing guidelines and sentenced one defendant to 18 months of prison with subsequent probation and another to 24 months’ probation and a fine of $300 after several witnesses and a defendant committed suicide.[xlvi] Such a departure from sentencing guidelines is worrying, especially in relation to such a large looting operation.
The government has encountered obstacles in enforcing the ARPA, due to either issues resulting from multiple agencies attempting to work together, inconsistencies in court rulings, or the perception of judges and juries of archaeological crime as grievous as it is.[xlvii] Nevertheless, the ARPA has withstood a number of challenges against it and federal agencies, archaeologists, and prosecutors have become more knowledgeable and better equipped in enforcing the Act.
Amendments to the ARPA were made in 1988, which focused on land management actions agencies and steps Federal land managers must take to improve archaeological resource protection. The above-mentioned Departments charged with promulgating regulations have been required since 1988 to conduct archaeological surveys of public lands. Considering the fact that the total number of archaeological sites in the United States, as well as the number of sites destroyed, is unknown, increased surveying is meant to augment knowledge of existing archaeological materials and sites in order to improve protection of cultural heritage.[xlviii]
Additionally, perhaps in an attempt to increase the deterrence effect posed by fines, the Criminal Fines and Improvement Act of 1987 increased the maximum threshold of fines to $100,000 for initial and $250,000 for subsequent violations by individuals, and $200,000 and $500,000, respectively, by corporations with regard to certain offenses.[xlix]
[i] Roberto Iraola, The Archaeological Resources Protection Act—Twenty Five Years Later, 42 Duq. L. Rev. 221, 222 (2004).
[ii] Stephanie A. Ades, The Archaeological Resources Protection Act: A New Application in the Private Property Context, 44 Cath. U. L. Rev. 599, 604 (1995).
[iii] Id. at 601.
[iv] Kristine O. Rogers, Visigoths Revisited: The Prosecution of Archeological Resource Thieves, Traffickers, and Vandals, 2 J. Envtl. L. & Litig. 47, 48 (1987).
[v] Rogers, supra at 61
[vi] 16 U.S.C. § 470aa(b) (1979).
[viii] Janet L. Friedman, A History of the Archaeological Resources Protection Act: Law and Regulations, 5 American Archaeology 81, 106 (1985).
[ix] Lorrie D. Northey, The Archaeological Resources Protection Act of 1979: Protecting Prehistory for the Future, 6 Harv. Envtl. L. Rev. 61, 89 (1982).
[x] § 470cc(c).
[xi] § 470ee(c).
[xii] § 470ee; §470ff.
[xiii] § 470ee(d)
[xvi] § 470ii(a)
[xvii] Sherry Hutt, The Civil Prosecution Process of the Archaeological Resources Protection Act, Technical Brief 16, 1 (1994), http://www.cr.nps.gov/aad/PUBS/TECHBR/tch16a.htm.
[xviii] Northey, supra at 80.
[xix] Hutt, supra at 1.
[xx] Northey, supra note 211, at 81.
[xxi] Hutt, supra at 2.
[xxii] § 470gg(b).
[xxiv] § 470hh(a).
[xxv] § 470dd.
[xxvi] § 470bb(1).
[xxviii] Northey, supra at 76.
[xxix] 16 U.S.C. §433.
[xxx] Northey, supra at 71.
[xxxii] Ades, supra at 613.
[xxxiii] Ades, supra at 624.
[xxxiv] Ades, supra at 624.
[xxxvi] Sherry Hutt, Observations of ARPA Warriors: Twenty Years on the March, 25 Cultural Resource Management 13, 13-14 (2002).
[xxxvii] Martin E. McAllister, Archaeological Law Enforcement Training, 25 Cultural Resource Management 15, 15 (2002).
[xxxviii] Northey, supra at 112-3.
[xxxix] Northey, supra at 72.
[xl] § 470gg(a).
[xli] United States v. Lynch, 233 F.3d 1139, 1140 (9th Cir., 2000).
[xlii] Ades, supra at 600.
[xliii] Rogers, supra note 96, at 61.
[xlv] Liv K. Fetterman, Articulating Value of Archaeological Resources After Damage, Archaeological Crime and the Archaeological Resources Protection Act, 55 Graduate Student Theses, Dissertations, & Professional Papers, 38, 40 (2012).
[xlvi] Id. at 40-1.
[xlvii] Id. at 36-37.
[xlviii] Northey, supra at 65; National Parks Service, The Archaeological Resources Protection Act of 1979 (ARPA), Archaeology Program (reproduced from Archaeological Method and Theory: An Encyclopedia (Linda Ellis et al. eds. 2000)), https://www.nps.gov/Archeology/tools/laws/ARPA.htm.
[xlix] Iraola, supra at 226-7.
See Robert D. Hicks, Looting, 25 Cultural Resource Management 4 (2002) for many supplemental resources.