Archaeological Resources Protection Act Steve Perry Chief of

Archaeological Resources Protection Act Steve Perry Chief of Refuge Law Enforcement Region 7 907 -786 -3310 steven_perry@fws. gov

Archaeological Resources Protection Laws • Selected federal statutes related to archaeological protection in addition to ARPA: – – – – Antiquities Act… 16 USC 433 Theft of Government Property… 18 USC 641 Damage to Government Property… 18 USC 1361 National Stolen Property Act… 18 USC 2314 Mail Fraud… 18 USC 1341 Customs in rem civil forfeiture; 18 USC 545 and 981 NAGPRA Abandoned Shipwreck Act

Archaeological Resources Protection Laws • Prior to 1979: the Antiquities Act 16 USC 433 (June 8, 1906): – Created criminal penalties for destruction of antiquities – Created permit procedures for arch. sites – Created historic and scientific national monuments • Protects any historic or prehistoric ruin or monument, or any object of antiquity • On land owned or controlled by Federal Gov’t. • Permits limited to museums, universities, colleges, scientific or educational institutions

Archaeological Resources Protection Laws • Antiquities Act limited in scope • Never had civil provisions • Limited to Class B Misdemeanor – 6 months, $5, 000/10, 000 max • US v Diaz (CA 9, 1974): Act is unconstitutionally vague for criminal prosecution – 4 yr old tribal masks used in ceremonies of ancient origin – “Object of antiquity” term vague and ambiguous – US v Smyer (CA 10, 1979): Act is not unconstitutionally vague – Total of 18 convictions from 1906 through 1979

Archaeological Resources Protection Act 16 USC section 470 aa (1979, amended 1988) • Provides for civil and criminal penalties – felony and misdemeanor • Provides for rewards for information • Provides for in rem forfeitures of equipment used in the offense; regardless of criminal prosecution • Provides protection for Federal and State and foreign resources • Is ARPA constitutional? CA 9 1990 US v. Austin

Archaeological Resources Protection Act contd. • Elements of offense on Federal lands: • Without a valid permit • The knowing excavation, removal, damage, alteration or defacement of • An archaeological resource (as defined) • On public or Indian lands

Archaeological Resources Protection Act…Prohibited Acts • On other than Federal lands: • To excavate, remove, damage, alter or deface, or attempt to… • Sell, purchase, exchange, transport, receive or offer to… • Remove archaeological resources in violation of state or local law • And move them in interstate or foreign commerce. • Anywhere: To hire, counsel, or procure another to violate the ARPA law

ARPA Penalties • Archaeological or commercial value, plus cost of restoration and repair • If the sum of value and cost is under $500 and a first offense…not more than 1 year and $100, 000 fine • If the sum exceeds $500 and a first offense… 2 years and $250, 000 fine • A second offense is 5 year felony and $250, 000 fine, regardless of value/costs

What is an “Archaeological Resource”? • Material remains of past human lives or activities of archaeological interest… • Which are at least 100 years old. • Examples: pottery, baskets, bottles, weapons, projectiles, rock paintings, carvings, graves, skeletal materials

What is not an Archaeological Resource under ARPA? • Arrowheads on the surface (by statute) • Rock, coin, bullet, mineral or other object not of archaeological interest • Paleontological items

Reporting under the Archaeological Resources Protection Act The Secretary of the Interior is responsible for coordinating Federal archaeological inventory, documentation, and recovery activities authorized under the ARPA, and for submitting a report to Congress on the scope and effectiveness of the program (AHPA Sec. 5(c); ARPA Sec. 13). In addition, the Secretary of the Interior is responsible for reporting to Congress on activities conducted annually by all Federal agencies under ARPA and for making recommendations to change or improve ARPA's provisions (ARPA Sec. 13).

ARPA Regulations • • Interior……… 43 CFR, Part 7 Agriculture…. 36 CFR, Part 296 TVA………… 18 CFR, Part 1312 D of D………. 32 CFR, Part 229

Civil ARPA Provisions • Initiated by agency land manager using regulatory process and APA • Analogous to fires or other damage assessments…bill for collection • Regs specify procedure for notice of violation, response, hearing and appeal for violator • Lower burden of proof; heard without a jury

Trafficking in Artifacts • Knowingly selling, purchasing, exchanging, transporting, receiving of • An archaeological resource • If obtained in violation of ARPA or any other federal regulation including CFRs • Burden is on seller to know if artifact was obtained illegally

ARPA Confidentiality • Information concerning the nature or location of any arch. resource may not be made available under FOIA – without specific finding by manager of no harm – Provision to disclose to state governor upon written request

Trafficking in Artifacts • Knowingly selling, purchasing, exchanging, transporting, receiving of • An archaeological resource • If obtained in violation of ARPA or any other federal regulation including CFRs • Burden is on seller to know if artifact was obtained illegally