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The Archaeological Resources Protection Act of 1979 (Pub. L.Tooltip Public Law (United States) 96–95 as amended, 93 Stat. 721, codified at 16 U.S.C. §§ 470aa–470mm), also referred to as ARPA, is a federal law of the United States that governs the excavation of archaeological sites on federal and Native American lands in the United States, and the removal and disposition of archaeological collections from those sites.[1] It was enacted in 1979 and amended in 1988.[1]

ARPA was launched in the 1970s after applications of the Antiquities Act of 1906 were declared "unconstitutionally vague". The Antiquities Act was unable to protect historical sites from criminal looting. Several attempts by the federal land-managing agencies and prosecutors to use this act resulted in judges saying that provisions regarding criminal prosecution were unconstitutionally vague making it unenforceable.[2] As a result, ARPA replaced the Antiquities Act when it came to determining permit-granting and prosecution procedures.[3]

ARPA regulates access to archaeological resources on federal and Native American lands. Uniform regulations were issued by the Department of the Interior, the Department of Agriculture, the Tennessee Valley Authority, and the Department of Defense. ARPA forbids anyone from excavating or removing archaeological resources from federal or Native American land without a permit from a land managing agency. ARPA also forbids any sales, purchase, exchange, transport, or receipt. Those who violate can face substantial fines and even a jail sentence if convicted, and any relevant archaeological resources will be confiscated.[4]

Background[edit]

The Antiquities Act of 1906 was enacted to limit the federal government's practice of collecting Native American property, such as the remains of the deceased. These objects would often end up in both public and private collections.[5] The Antiquities Act served to limit this practice by requiring permits to excavate federal lands and protecting the following objects found on federally owned or controlled land: objects of antiquity, historic monuments and ruins, prehistoric monuments and ruins.[5] However, in 1974, the Ninth Circuit held that the Antiquities Act's definition of "object of antiquity" was unconstitutionally vague in the case United States v. Diaz.[6] Additionally, in the later twentieth century, there was concern about looting of archaeological resources in the Southwest. These two factors led to ARPA's passage.[7][8]

Superseding the Antiquities Act,[9] ARPA was intended to combat illicit trafficking of archaeological resources from lands controlled by Native American tribes and the federal government[10] and provide enforceable penalties against the looting and marketing of such items.[11] ARPA's protection of these resources is based on those resources' potential scientific value, as opposed to later legislation's focus on Native American cultural property rights.[12] Additionally, ARPA was intended to provide a clear procedure for those seeking permits to conduct excavation for scientific study.[13]

During the Congressional hearing process, archaeologists and scientific experts were consulted, and amendments were made to clarify what sort of objects and sites would receive protections.[14] There was significant discussion to make sure the definition of "archaeological resources" was clearly and precisely defined.[15] Several senators and attorneys gave statements advocating for certain provisions, such as "resources" being defined to include objects dating back 100 years, as opposed to the originally proposed 50 years, which would still run the risk of people being permitted to excavate the remains of recently deceased relatives of Native Americans.[16] Additionally, there was discussion about clarifying the definition to include surface remains, skeletal remains, and general archaeological remains.[17]

One of the senators during this hearing was concerned that this act would negatively impact the "legitimate private collector and private museums" as earlier versions of the act punished possession of objects deemed archaeological resources.[18] As a result, possession was removed from the list of prohibited acts under ARPA.[19]

Native American tribes were not consulted in the drafting process of this act.[20] However, some members of Native American tribes were consulted during the hearing process.[21] Leroy Wilder, the General Counsel of the Association on American Indian Affairs, Inc. and a member of the Karuk Tribe, shared his concerns on the definition of archaeological resources, agreeing that the initially drafted 50-year age requirement of the object is not a significant enough period of time.[22] He also stated that objects and sites of religious significance should be protected, even if they might not be of archaeological significance.[23] He also advocated for Native American tribes having greater involvement in determining whether permits for archaeological excavations should be granted.[24]

After receiving approval and several suggested amendments in the Senate and House reports,[25][26] this piece of legislation was enacted in October of 1979. Ultimately, several amendments were made to the act as it was initially presented, including raising the date of covered objects to 100 years or older, and providing greater involvement from Native American tribes.[27]

Key Provisions of ARPA[edit]

As codified in 16 U.S.C. 470aa, ARPA’s stated purpose is to protect archaeological resources and sites on public and Native American lands, while allowing archaeological research to continue.[28] The code defines many terms, including "archaeological resource," "Federal land manager," "public lands," "Indian lands," and "Indian tribe."[29] Archaeological resources are defined as "any material remains of human life or activities which are at least 100 years of age, and which are of archaeological interest."[30] ARPA also defines "of archaeological interest" as "capable of providing scientific or humanistic understandings of past human behavior, cultural adaption, and related topics."[31] "Federal land manager" refers to the head of the American agency or instrumentality that manages the public land in question. In the case of public or Native American lands with no managing department or agency, the Federal land manager would be the Secretary of the Interior.[32] Public lands refer to land which is owned and managed by the United States, including the national parks, the national wildlife refuge system, and the national forest system. Indian Lands refer to the lands of Native Americans, and Indian tribe refers to any Native American "tribe, band, nation, or other organized group or community."[33]

Prohibited acts included excavation, removal, or alteration of archaeological resource without a permit.[34] Permit granting procedures are covered by 16 U.S.C. §470cc.[35] ARPA also punishes trafficking unlawfully procured archaeological resources, along with their sale, purchase, exchange, transportation, or receipt.[36] As the act was phrased in 1979, those who knowingly violate these provisions would be fined no more than $10,000, imprisoned for no more than a year, or both. If the "commercial or archaeological value" of the resource and cost of repair to the resource amounts to $5,000 or more, the violator would be subject to a penalty fee of $20,000, a two-year maximum prison sentence, or both.[37]

Application of the criminal penalty provisions gave rise to litigation over these provisions of the Act. Certain cases took issue with what the mens rea requirement of "knowingly" applied to; either the defendant must know that what was stolen is an archaeological resource, or the defendant must also know that the conduct at issue happened on public lands.[38] In United States v. Lynch, the Ninth Circuit held that to sustain a criminal conviction, the government has to show, beyond a reasonable doubt, that the defendant knew the object at issue was an archaeological resource.[39] Another case, United States v. Ligon, addressed the definition of "archaeological value," holding that its definition cannot be used synonymously with "value" under 18 U.S.C. §641, which governs theft from the United States government.[40]

Civil penalties under ARPA consist of penalties, the amount being determined by the Federal land manager. The person in violation of ARPA must first be given notice and opportunity for a hearing for each violation. The amount of the penalty will be based on the "archaeological or commercial value" of the archaeological resource in question, and the cost of fixing any damage to the archaeological site in question.[41]

ARPA also provides that information about the location of archaeological sites and resources will be exempt from the Freedom of Information Act will not be made available to the public. The rationale behind this part of the statute was that keeping this information confidential would protect archaeological sites and resources from vandalism and looting.[42] This information may be made public if it would not harm the resources or site, and State Governors may request this information from the relevant Federal land manager if needed.[43]

Later Amendments and Impact[edit]

In 1988, ARPA was amended to add several provisions in the U.S.C. and several regulations in the C.F.R. The October 1988 amendment added a new section under ARPA's sections in the U.S.C that granted the Secretaries of the Interior, Agriculture, and Defense, along with the Chairman of the Board of the Tennessee Valley Authority to prepare materials to survey lands under their control. This would enable them to identify any archaeological resources and assess the reporting process for violations of ARPA.[44]

In November of 1988, several other amendments were made. This amendment adds "defacement" to the list of prohibited acts under ARPA. In the calculation of criminal penalty fees, this amendment decrease the minimum value of the archaeological resource's commercial/archaeological value and cost of repair from $5,000 to $500. It also adds another provision to the act that requires Federal land managers to establish programs that raise the public's awareness of the importance and protection of archaeological resources in the area.[45]

One critique of ARPA is that it treats Native American objects and human remains as objects of scientific value, instead of centering Native American perspectives.[46] However, one benefit was that the enforcement of ARPA's criminal and civil penalties have served as a deterrent against potential theft of the items protected by the Act.[47] Later legislation, such as the Native American Graves Protection and Repatriation Act (NAGPRA), addressed the shortcomings of ARPA and protected Native American artifacts and remains by providing a greater focus on Native American cultural values and property rights.[48]

See also[edit]

References[edit]

  1. ^ a b Seidemann, Ryan M. (November 9, 2006). "The Reason Behind the Rules: The Archaeological Resources Protection Act of 1979 and Scientific Study". Bepress Legal Series. bepress Legal Series, Working Paper 1874. Berkeley Electronic Press.
  2. ^ McManamon, Francis P. (2006). "The Foundation for American Public Archaeology: Section 3 of the American Antiquities Act of 1906". In Harmon, David; McManamon, Francis P.; Pitcaithley, Dwight T. (eds.). The Antiquities Act: A Century of American Archaeology, Historic Preservation, and Nature Conservation. Tucson, AZ: University of Arizona Press. p. 172. ISBN 9780816525614.
  3. ^ Lauryne Wright, Cultural Resource Preservation Law: The Enhanced Focus on American Indians, 54 A.F. L. Rev. 131 at 133.
  4. ^ Archaeological Resources Protection Act of 1979; and the Frederick Law Olmsted National Historic Site; Subcom on Parks, Recreation, and Renewable Resources, Committee on Energy and Natural Resources. Senate - HRG-1979-NAR-0089 (Hearing) at 40
  5. ^ a b Lauryne Wright, Cultural Resource Preservation Law: The Enhanced Focus on American Indians, 54 A.F. L. Rev. 131 at 132-33
  6. ^ Id. at 133; United States v. Diaz, 499 F.2d 113 (9th Cir. 1974).
  7. ^ Roberto Iraola, The Archaeological Resources Protection Act - Twenty Five Years Later, 42 Duq. L. Rev. 221, 222 (2004).
  8. ^ H. Rpt. 96-311 at 7.
  9. ^ Lauryne Wright, Cultural Resource Preservation Law: The Enhanced Focus on American Indians, 54 A.F. L. Rev. 131 at 134.
  10. ^ 125 Cong.Rec. 17394 (bound ed. July 9, 1979) Rules suspended. Amended and passed House; Title amended), available at ProQuest Legislative Insight.
  11. ^ Archaeological Resources Protection Act of 1979; and the Frederick Law Olmsted National Historic Site; Subcom on Parks, Recreation, and Renewable Resources, Committee on Energy and Natural Resources. Senate - HRG-1979-NAR-0089 at 1.
  12. ^ Sherry Hutt, INDIAN LAW THEME ISSUE: NATIVE AMERICAN CULTURAL PROPERTY LAW: HUMAN RIGHTS LEGISLATION, 34 AZ Attorney 18, 21.
  13. ^ 125 Cong.Rec. 17393 (bound ed. July 9, 1979) Rules suspended. Amended and passed House; Title amended), available at ProQuest Legislative Insight.
  14. ^ Archaeological Resources Protection Act of 1979; and the Frederick Law Olmsted National Historic Site, Hearing Before the Subcom on Parks, Recreation, and Renewable Resources, Committee on Energy and Natural Resources. Senate, 96th Cong. (1979), available at ProQuest Legislative Insight.
  15. ^ Id.
  16. ^ Id. at 93.
  17. ^ Id. at 48-49.
  18. ^ Id. at 40.
  19. ^ Id.
  20. ^ Lauryne Wright, Cultural Resource Preservation Law: The Enhanced Focus on American Indians, 54 A.F. L. Rev. 131 at 134.
  21. ^ Archaeological Resources Protection Act of 1979; and the Frederick Law Olmsted National Historic Site, Hearing Before the Subcom on Parks, Recreation, and Renewable Resources, Committee on Energy and Natural Resources. Senate, 96th Cong. (1979), at 92.
  22. ^ Id. at 93.
  23. ^ Id.
  24. ^ Id.
  25. ^ H. Rpt. 96-311.
  26. ^ S. Rpt. 96-179.
  27. ^ Pub.L. 96–95
  28. ^ 16 U.S.C. §470aa
  29. ^ 16 U.S.C. §470bb.
  30. ^ Id.
  31. ^ King, Thomas F. (2013). Cultural Resource Laws and Practice: An Introductory Guide (4th ed.). Walnut Creek, CA: AltaMira. p. 252. ISBN 9780759121751.
  32. ^ 16 U.S.C. §470bb.
  33. ^ Id.
  34. ^ 16 U.S.C. §470ee.
  35. ^ 16 U.S.C. §470cc.
  36. ^ 16 U.S.C. §470ee.
  37. ^ Pub.L. 96–95.
  38. ^ Roberto Iraola, The Archaeological Resources Protection Act - Twenty Five Years Later, 42 Duq. L. Rev. 221, 231.
  39. ^ Id.; United States v. Lynch, 233 F.3d 1139 (9th Cir. 2000).
  40. ^ United States v. Ligon, 440 F.3d 1182 (9th Cir. 2006).
  41. ^ 16 U.S.C. §470ff.
  42. ^ Archaeological Resources Protection Act of 1979; and the Frederick Law Olmsted National Historic Site, Hearing Before the Subcom on Parks, Recreation, and Renewable Resources, Committee on Energy and Natural Resources. Senate, 96th Cong. (1979), at 16, 42.
  43. ^ 16 U.S.C. §470hh.
  44. ^ Pub.L. 100–555.
  45. ^ Pub.L. 100–588.
  46. ^ Sherry Hutt, INDIAN LAW THEME ISSUE: NATIVE AMERICAN CULTURAL PROPERTY LAW: HUMAN RIGHTS LEGISLATION, 34 AZ Attorney 18, 21.
  47. ^ Roberto Iraola, The Archaeological Resources Protection Act - Twenty Five Years Later, 42 Duq. L. Rev. 221, 257.
  48. ^ Sherry Hutt, INDIAN LAW THEME ISSUE: NATIVE AMERICAN CULTURAL PROPERTY LAW: HUMAN RIGHTS LEGISLATION, 34 AZ Attorney 18, 21.

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