The Archaeological Resources Protection Act and The Native American Graves Protection and Repatriation Act
by Judith Benderson
Attorney, Office of Legal and Victim Programs, Executive Office for U.S. Attorneys
Table of Contents
Photo of Geronimo’s headdress, recovered through the FBI’s Art Theft Program.
The 1876 Centennial Exposition in Philadelphia and the 1893 World's Columbian Exposition in Chicago stimulated great interest in North American archaeology and anthropology through the inclusion of Native American artifacts at both events. In fact, Native Americans themselves appeared as part of the exhibits. PBS's American Experience describes it thus:
Over 300 Native Americans from 53 tribes were brought to the Expo, and they camped on the Centennial grounds. According to James McCabe's 1876 description of the Expo, "the object of the encampment is to show, in as perfect a degree as is now possible, the original inhabitants of this country and their mode of life."(1)
Although the treatment of Native Americans and their culture in these expositions was less than respectful, the result was an increased curiosity on the part of both collectors and museums. Subsequent surveys of southwest sites stirred interest in collecting artifacts, resulting in increased looting of archaeological sites. Many of these looted materials were eventually sold to museums unless, as in some cases, the museums themselves actually sponsored the expeditions.
The cultural and archaeological resources of the North American continent include religious, spiritual, historic, scientific, and artistic components of Native American culture. Although not all archaeology involves Native American remains or cultural items, such items are certainly the subject of a large number of the violations of cultural resource protection laws. Preserving and protecting these cultural resources is both a legal and moral obligation.
Archaeological crime includes vandalism of and theft from archaeological sites and collections, and trafficking of restricted Native American archaeological remains. Native American target sites include:
- Prehistoric sites such as rock shelters, caves, rock art, rock alignments, earthen mounds, earthen middens, mound complexes, ceremonial centers, shell mounds, middens, refuse pits, burial pits, graves, and cemeteries.
- Later sites, including domestic and ceremonial structures, storage structures, ruins, and graves.
- Common motives to commit artifact theft and vandalism include a fascination with the past, a desire to collect artifacts, and knowledge of the monetary value of the artifacts coupled with an intent to sell. For some, artifact hunting, or "pot-hunting" is a family tradition that, to the perpetrator, seems harmless and perhaps even victimless. Beyond the obvious legal violations, some collectors do not understand the moral and historical implications of separating an item from where it was found and thus separating it from its historical context, its story, and from what it could tell us about how it was used and valued in the past. The item simply becomes an object, and its larger meaning is lost. The piece of the historical and cultural puzzle that it would provide may be gone forever, and when human remains are involved, the spiritual link is disturbed.
There is a division of legal authority and responsibility between federal and state governments relating to this issue. Issues involving the Archaeological Resources Protection Act (ARPA) and the Native American Graves Protection and Repatriation Act (NAGPRA) are part of a unitary scheme for federally-owned and controlled lands, including tribal lands. Other than the trafficking provisions of ARPA and NAGPRA, states are responsible for state-owned and controlled lands, in addition to those that are locally-owned.
The first significant protection for archaeological and Native American cultural resources came about in the Antiquities Act of 1906. 16 U.S.C. §§ 431- 433 (2009). The Antiquities Act is the federal mechanism for establishing national monuments. Its purpose was to establish historic and prehistoric structures and other objects of historic or scientific interest on federal lands as national monuments. It was an attempt to prevent looting, but it also played a major role in the professionalization of American archaeology by restricting excavation to professionals and requiring a permit for excavation which is issued only by the Smithsonian. For better or worse, the Antiquities Act vested control over Native American sites in the museum establishment. After the Ninth Circuit found the Antiquities Act to be unconstitutional because certain terms were not clearly defined, U.S. v. Diaz, 499 F.2d 113, 115 (9th Cir. 1974), additional legislation was deemed necessary.
Archaeological Resources Protection Act
Probably the most-used enforcement tool for the protection of cultural resources is the Archaeological Resources Protection Act, 16 U.S.C. § 470aa-470mm, enacted October 31, 1979, the purpose of which is "to protect irreplaceable archaeological resources and sites on federal, public, and Indian lands."(2)
An ARPA violation can be either a felony or a misdemeanor, depending upon the severity of the violation. It can also be pursued civilly when deemed appropriate or necessary. The elements of an ARPA violation include the following:
- The act must involve an archaeological resource more than 100 years old. "Archaeological Resource" is defined as: (1) material remains of past human life of (2) archaeological interest (3) over 100 years old (4) including, but not limited to, pottery, basketry, bottles, weapons, projectiles, tools, structures, pit houses, rock paintings, graves, and human skeletal materials.
- With the exception of the trafficking provisions of 16 U.S.C. § 470ee(c), the act must occur on public lands for ARPA jurisdiction to attach. Such lands include lands owned and administered by the United States as part of the National Park Service, National Wildlife Refuge System or National Forest System; all other lands to which fee title is held by the United States; Indian lands; land held in trust by the United States; and land subject to the restriction against alienation imposed by the United States.
- The act must be one prohibited by ARPA as listed under:
- 16 U.S.C. § 470ee(a): Excavate, remove, damage ... alter or deface an archaeological resource or attempt to do so
- 16 U.S.C. § 470ee(b): Sell, purchase, exchange, transport, receive, or ... offer to do so
- 16 U.S.C. § 470ee(c): Sell, purchase, exchange, transport, receive, or offer to ... in interstate or foreign commerce any archaeological resource ... in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law
- 16 U.S.C. § 470ee(d): Violates, counsels, procures, solicits, or employs any other person to violate any provision in subsection (a), (b), or (c)
Under ARPA's Excavation and Removal provision, a permit is required, notification must be sent to any tribes that may consider the site as having religious or cultural importance (§ 470cc), and the consent of the tribes involved must be received when the site is on Indian Land (§ 470cc(g)(2)).
ARPA excludes coins, bullets, unworked minerals, and rocks, unless they are found in direct physical relationship with another archaeological resource; arrowheads found on the surface (defined as any projectile point designed for use with an arrow, 43 C.F.R. § 7.3(5)(b) (2010); items found on private lands; and items in one's lawful possession prior to October 31, 1979. 16 U.S.C. § 470kk (2009).
Forfeiture is used in ARPA cases and can be sought criminally, civilly, or in rem. In a criminal case, the forfeiture count will be in the indictment or information and may be part of any plea negotiations. Forfeiture may also be used as part of civil proceedings or initiated after assessment of a criminal or civil penalty. In an in rem proceeding, no individual defendant is identified, so forfeiture does not have the same breadth as it does in other areas of law enforcement, and is limited to objects, vehicles, and tools.
Native American Graves Protection and Repatriation Act of 1990
The second major protection for human remains and cultural resources is the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA). 25 U.S.C. § 3001 (2009). NAGPRA contains definitions and procedures for repatriation, pertaining especially to museums which receive some federal funding and may possess applicable material, including remains of Native Americans.
NAGPRA focuses on three areas:
- Restitution of human remains and cultural items located in museums that receive federal funds
- Restitution to Native Americans of newly-discovered human remains and associated burial items
- Anti-trafficking provisions dealing both with human remains and communally-owned sacred and cultural objects
Four areas of federal law which the legislation sought to reconcile have been identified:
- Civil rights (Native American remains and funerary objects were treated differently than those of other ethnic groups)
- Religious freedom based on Constitutional recognition of tribal sovereignty
- Property law (recognizing traditional concepts of communal property in use by some Indian tribes)
- Administrative law (i.e., giving the Interior Department authority to issue regulations) (3)
NAGPRA enforcement, specifically related to trafficking, is found under 18 U.S.C. § 1170. The penalties for trafficking are similar to those for violating ARPA in that the first offense is generally considered a misdemeanor, whereas the second is an automatic felony.(4)
- 8 U.S.C. § 1170(a) addresses the trafficking of Native American remains, and defines a trafficker as one who "knowingly sells, purchases, uses for profit, or transports for sale or profit the human remains of a Native American without the right of possession to those remains as provided in the Native American Graves Protection and Repatriation Act."(4)
- 18 U.S.C. § 1170(b) addresses the trafficking of Native American cultural items and defines a trafficker as one who "knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural items obtained in violation of the Native American Graves Protection and Repatriation Act." (4) For purposes of this Act, cultural items include human remains, associated funerary items, unassociated funerary items, objects of cultural patrimony, and sacred objects.
There are a variety of additional statutes which can be used when prosecuting cultural heritage crimes. These include: conspiracy (18 U.S.C. § 371), theft of government property (18 U.S.C. § 641) (does not use archaeological value), damage of government property (18 U.S.C. § 1361), theft from a tribal organization (18 U.S.C. § 1163), interstate transportation of stolen property (18 U.S.C. § 2314), aiding and abetting (18 U.S.C. § 2), accessory after the fact (18 U.S.C. § 3), theft of major artwork (18 U.S.C. § 668), migratory bird treaty act (16 U.S.C.A. § 710), and agency regulations.
Indian Arts and Crafts Act of 1990
The Indian Arts and Crafts Act of 1990 (IACA) also works to protect cultural resources. Indian Arts and Crafts Act of 1990, Pub. L. 101-644, § 104, 104 Stat. 4662 (1990). The Indian Arts and Crafts Web page describes the IACA as follows:
A"truth-in-advertising" law that prohibits misrepresentation in the marketing of Indian arts and crafts products within the United States. It is illegal to offer or display for sale, or to sell any art or craft product in a manner that falsely suggests it is Indian-produced, an Indian product, or the product of a particular Indian, Indian Tribe, or Indian arts and crafts organization, resident within the United States. For a first time violation of the Act, an individual can face civil or criminal penalties up to a $250,000 fine or a 5 year prison term, or both. If a business violates the Act, it can face civil penalties or can be prosecuted and fined up to $1,000,000.
The IACA Web page goes on to say that:
The law covers all Indian and Indian-style traditional and contemporary arts and crafts produced after 1935, and broadly applies to the marketing of arts and crafts by any person in the United States. Some traditional items frequently copied by non-Indians include Indian-style jewelry, pottery, baskets, carved stone fetishes, woven rugs, kachina dolls, and clothing. All products must be marketed truthfully regarding the Indian heritage and tribal affiliation of the producers so as not to mislead the consumer . . . . It is illegal to market art or a craft item using the name of a tribe if a member or certified Indian artisan of that tribe did not actually create the art or craft item.
Id. Besides the truth-in-advertising aspect of this law, which allows the purchaser to know that "Indian-made" is, in fact, made by Indians as defined in the Act, the IACA provides critical economic benefits for Native American cultural development. Forgery and fraudulent Indian arts and crafts diminish the livelihood of Native American artists and craftspeople by lowering both market prices and standards.
Native American cultural heritage is a precious, non-renewable resource for historical, spiritual, and creative experiences and knowledge. Many priorities tug at our time and treasury, but it is important to all that we protect the past and provide the proper respect to those whose creations and remains are seen by some as simple retail commodities.
(3) C. Timothy McKeown & Sherry Hutt, In the Smaller Scope of Conscience: The Native American Graves Protection & Repatriation Act Twelve Years Later, 21 UCLA J. Envtl. L. & Pol'y 153 (2002- 2003) (detailing the history of the passage of the Native American Graves Protection & Repatriation Act).
Two Sentenced for Looting Yakama Nation Cultural Site
Eastern District of Washington
Tiffany E. Larson, 24, and Devin W. Prouty, 27, were sentenced on May 13, 2010, for damaging and removing archeological resources from an historic Yakama Nation site. Both received sentences of two years probation and were ordered to pay restitution in the amount of $6,690.08. Ms. Larson and Mr. Prouty were also ordered to perform 150 hours of community service for the Yakama Nation and banned during the period of probation from going into Spearfish Park, located in Klickitat County, Washington.
On August 15, 2009, Tiffany Larson and Devin Prouty were encountered at Spearfish Park looking for arrowheads and collecting stone fragments which had artifact work on them. Spearfish Park is managed by the United States Army Corps of Engineers. Signs at the entrance to the park note that "Destruction, injury, defacement, removal, or any alteration of public property is prohibited." Neither Ms. Larson nor Mr. Prouty had a permit for excavation of historic or prehistoric resources, or for removal of archaeological objects. The Yakama Nation archaeological damage assessment determined that there were three areas of measurable disturbance and the cost to rehabilitate the area was $6,690.08. At sentencing, Yakama Nation Cultural Resources Program Manager Johnson Meninick spoke of the historic significance of Spearfish Park. Yakama Nation Tribal Council member Terry Gowdy-Rambler told the court of family ties to the area and how this plundering of the site was offensive not only to her but also to the Yakama Nation as a whole.
AUSA Jane Kirk prosecuted this case, which was investigated by the Yakama Nation Cultural Resources Program, Columbia River Inter-Tribal Fisheries Enforcement, the U.S. Army Corps of Engineers, and the Klickitat County Sheriff’s Office.
Kettle Falls Man Sentenced for Stealing Indian Artifacts
Eastern District of Washington
Sandie Rae McNeil, age 45, of Kettle Falls, Washington was sentenced on November 3, 2010, for illegally removing archeological resources from public lands. As a condition of probation, McNeil was ordered to serve 30 days of home detention and he is prohibited from entering the Lake Roosevelt National Recreation Area for three years. Sandie McNeil took the archeological resources from the Lake Roosevelt National Recreation Area between June 2004 and April 2005. In May 2005, the National Park Service executed a federal search warrant at McNeil’s residence in Kettle Falls and recovered numerous protected archeological objects. The resources included projectile points, stone weights and tools, stone flakes, and a gun cartridge and gun flint. These items were ordered forfeited to the United States. Given repeated contacts with park officials over the years, the court found that McNeil had engaged in a pattern of misconduct involving the illegal acquisition of archaeological resources.
AUSA Timothy Ohms prosecuted this case, which was investigated by the National Park Service.
Man Sentenced to Six Months in Prison for Removing 300-Plus Pound Boulder Containing Petroglyph from Spring Mountains
District of Nevada
Michael Cook, 58, who removed and damaged a large petroglyph from the Spring Mountains National Recreational Area near Pahrump, Nevada, was sentenced on March 30, 2011, to six months in federal prison and one year of supervised release. Cook pleaded guilty on October 14, 2010.
In pleading guilty, Cook admitted that between about March and September 2008, he removed a large boulder containing the petroglyph from the Santa Cruz Springs area of the Spring Mountains National Recreation Area. Cook placed the petroglyph, which depicted seven sheep, in his front yard at his house in Pahrump. Cook admitted that he knew the petroglyph is an archaeological resource and that he did not have a permit to excavate, remove or alter the petroglyph. Nye County Sheriff’s Department officials discovered the petroglyph in Cook’s front yard in Pahrump on June 24, 2009, when they went to his house to execute a search warrant, and reported it to the United States Forest Service. Two members of the Southern Paiute tribe testified at sentencing that the site from which the petroglyph was removed is a sacred worship site and the removal of the rock containing the petroglyph amounted to desecration of the site. The government, in consultation with the Southern Paiutes, came up with a compromise that will attempt to restore the site to respect the cultural significance of the petroglyph and the spiritual uses of the site.
AUSA Roger Yang prosecuted this case, which was investigated by the United States Forest Service, with the assistance of the law enforcement team of the Southern Nevada Agency Partnership (SNAP), which includes the United States Forest Service, United States Fish and Wildlife Service, National Park Service, and Bureau of Land Management.
Robert Knowlton Sentenced for Selling and Transporting Archaeological Artifacts
District of Colorado
Robert B. Knowlton, 66, of Grand Junction, Colorado, was sentenced on November 19, 2010, for selling and transporting for sale an archaeological resource and has been banned from being on Bureau of Land Management (BLM) land for the purpose of collecting. Knowlton pleaded guilty to knowingly selling and offering to sell an archaeological resource, specifically an Ancestral Puebloan cloud blower pipe, which was removed from public lands. The second count states that Knowlton knowingly transported from Colorado to Utah an archaeological resource, namely the same cloud blower pipe. The original indictment was dismissed as a result of the plea agreement.
AUSA Robert Mydans prosecuted the case, which was investigated by the BLM and the FBI.
Judith Benderson is an attorney at the Office of Legal and Victim Programs in the Executive Office for United States Attorneys, where she deals with cultural heritage issues and serves as the Cultural Property Law Enforcement Coordinator. She has a Certificate in Appraisal Studies of Fine and Decorative Arts from George Washington University, and provided an appraisal in a forfeiture case, U.S. v 18th Century Peruvian Oil on Canvas Painting of "Doble Trinidad" and 17th Century Peruvian Oil on Canvas Painting of "Santa Rosa of Lima," 597 F.Supp.2d 618 (E.D. Va. 2009). As part of the Leadership Excellence and Achievement Program, she was assigned to the FBI Art Theft Program. She teaches at the National Advocacy Center in Columbia, South Carolina.