Burns Oregon Refuge Takeover Ends In Blood

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.

Alternative statutes

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.