Beyond ARPA: filling the gaps in federal and state cultural resource protection laws.

• Author: Bushbaum, Michael J.
• Position: Archaeological Resource Protection Act

1. INTRODUCTION

   Cultural resource vandalism and destruction are widespread throughout the United States.(1) One recent grave desecration incident in Mono County, California, highlighted this problem and its impact on a local level. In 1990, a grave containing the remains of a Native American was desecrated, when a thief removed the skull and possibly some artifacts. Days later, the thief was arrested, charged with violation of California state law. The local community reacted strongly to the federal and state government responses. Eventually, the community developed a local commitment to adequately address future incidents of cultural resource vandalism.

   This Comment argues that current federal and state statutes are often inadequate to solve the problem. Section I discusses the case, California v. Tischler,(2) and explains the application of California state law. Section II addresses the response of the community in Mono County to the Tischler decision. In particular, Section II discusses the local committee and investigation task force formed as a result of the case. Section III presents a brief history of early attempts to control cultural resource destruction with local ordinances. Section IV discusses the reasons additional local statutes and ordinances should be enacted to protect Native American gravesites and other cultural resources. Finally, Part V presents a model county ordinance. The ordinance would enable local officials to exercise control over both public and private lands in an effort to protect all cultural resources of the past and the present.

2. THE CASE: California v. Tischler

   Pat Gregory was a Native American rancher who lived in the Mono Lake basin in the late 1800's and early 1900's. He died and was buried 60 years ago. Between May 27 and June 13, 1990, someone desecrated his burial site.(3) The grave was opened and the skull removed.(4) A hip bone was left lying on top of the open grave.(5) In addition, relatives speculated that some artifacts were also removed. While there was no evidence to show exactly what was buried with Mr. Gregory's remains, testimony presented that he was probably buried with some artifacts, including a rifle. Such a rifle was found a short distance from the site where the skull was recovered.(6)

   Law enforcement officials in Mono County arrested Thomas Tischler, age twenty-three, for possession of Native American remains, specifically a skull, in violation of section 5097.99 of the California Public Resources Code (PRC).(7) The federal Archaeological Resource Protection Act (ARPA) (8) Was unavailable to prosecutors, because the gravesite was less than 100 years old.(9) In addition, alternate federal jurisdiction under ARPA was questionable because authorities were uncertain whether the gravesite was on federal land.(10) These factors led the prosecution to charge Tischler under California state law.(11)

   At the preliminary hearing, at least one witness testified that Tischler was in possession of a skull shortly after Memorial Day and that he intimated that the skull was Indian.(12) The same witness told authorities that Tischler had previously expressed a desire to possess a human skull.(13) Additionally, Tischler had mentioned his desire to retrieve a skull at the Indian cemetery where the Pat Gregory had been buried.(14) Although the prosecution could not establish that Tischler removed the skull or desecrated the remains, the prosecution presented a solid case for illegal possession of native American remains.(15) Early in the preliminary hearing, the prosecution established that the gravesite was marked as a Native American burial ground(16) and that the defendant was aware that such a burial site existed.(17) Under California law, this knowledge satisfied the requisite legal element of "knowingly or willfully . . . possess[ing] . . . from a Native American grave or cairn."(18)

   After the preliminary hearing, the defendant entered a guilty plea without a plea bargain. In response to this plea, the prosecutor recommended a sentence of "three months in jail, probation, and 100 hours of community service work at cemeteries."(19) The recommended sentence, which could have been up to three years in jail,(20) outraged local Native American communities,(21) and local officials of the Bureau of Land Management (BLM) and U.S. Forest Service.(22) BLM and Forest Service personnel organized meetings and encouraged Native Americans to attend the sentencing hearing to voice their displeasure. The Native American community blamed law enforcement officials for the perceived mishandling of the case.(23)

   According to local newspaper reports, the BLM and Forest Service encouraged a significant turnout at the sentencing hearing: "Dozens of Indians, from various tribes throughout California and as far away [sic] Idaho, packed the Bridgeport courtroom."(24) For over two hours, members of the Indian community testified, all urging that Tischler be given the maximum sentence.(25) In response to this outpouring of Native American concern and outrage, Judge Denton went beyond the probation department's recommendation and sentenced Tischler to one year in jail, five years probation, and 100 hours of community service. In his comments before sentencing, Judge Denton expressed personal outrage at the crime, saying, "I'd be damned mad if my folks' grave was disturbed, I'm going to try and send a message, a message based on the crime in front of me."(26)

3. COMMUNITY INVOLVEMENT

   From the very beginning, the handling of the Tischler case outraged the local Native American communities.(27) In addition, there had been previously reported cases of grave vandalism, yet no program had been devised to ensure a proper investigation by responsible parties following such reports. Thus, for effective future investigation and prosecution of cultural resource vandalism, many changes were required.(28)

   Jurisdiction was the first problem. In Tischler, the U.S. Forest Service and Los Angeles Power and Water did not determine until after sentencing that the gravesite rested on federal land.(29) This determination was significant because it would have granted preliminary federal jurisdiction under ARPA.(30) When conflicts arise over which federal or state agency has jurisdiction, any legitimate hesitation can be perceived as a lack of commitment to protect cultural resources on the part of agency officials. This apparent lack of commitment may easily translate into distrust and community schisms.

   This is exactly what happened in Mono County. In Tischler, while both the BLM and the Forest Service arguably were willing to assume jurisdiction, neither could be sure it had the authority to do so. This indecisiveness was not fatal to successful prosecution, but it gave rise to the concerns expressed by the Native American community. The Native American community was unsatisfied with local law enforcement authorities' handling of the case. They raised charges of prejudice and disinterest. In addition, the family felt vital leads in the investigation were ignored.(31)

   1. Initiatives for Change

      The turnout for the sentencing demonstrated the community's distress.(32) Given the emotions and mistrust in the community, and concern that vandalism would continue if unchecked, the BLM and Forest Service staff felt more community involvement was necessary. Future vandalism needed to be discouraged, and if such vandalism did occur, the official response needed to be swift, thorough, and sensitive to the "victims." BLM and Forest Service personnel actively urged that full consideration be given to the "public's concern and moral rejection"(33) of the acts of vandalism before the sentence was pronounced.

      Because of the strong commitment and support of local BLM and Forest Service personnel, and the backing of the Native American community, a groundswell of local activity began. Meetings were held and plans enacted to ensure that further incidents of vandalism would be handled more expeditiously. Even before Tischler's sentencing, the BLM sponsored a gathering with the Indian community to address vandalism of Native American burial sites."(34) In September, the California Native American Heritage Commission(35) met with leaders of the Native American community in both Mono and Inyo Counties, representatives of local law enforcement, and personnel from the BLM and the Forest Service. Attendees expressed strong support for personal commitment, mutual trust, and active involvement aimed at addressing the vandalism problem.(36)

   2. The Cultural Resource Vandalism Standing Committee

      Participants in the meeting with the California Native American Heritage Commission also created an intertribal, interagency standing committee. As envisioned, the standing committee would include members of the U.S. Forest Service, Bureau of Land Management, Mono County Sheriffs Office, Inyo County Sheriff's Office, California Department of Transportation (Cal-Trans),(37) and National Park Service. All the Native American communities within the Mono Basin would send representatives.(38) The first chore of the standing committee was to establish a resource base. At first, the primary resources were maps and site surveys compiled by the U.S. Forest Service and the BLM. The committee created a fact sheet that listed both the agencies and Native American groups that needed to be involved,(39) and a list of contact people from each group.(40) The fact sheet also included a list of relevant federal, state, and county statutes and ordinances that had an impact on the problem of cultural resource destruction. Finally, the fact sheet contained a preliminary statement of jurisdiction detailing which agencies were responsible for investigation on which lands.(42)

      After formation of the standing committee, three goals were established:(43) Supply expert advice from traditional Native American elders, human osteologists, American Indian Religious...