Oregon's Senate Bill 61: balancing protection and privatization of cultural resources.

• Author: Somervell, Katherine S.

1. Introduction II. Background A. Oregon's Cultural Resources Laws Prior to SB 61 1. Grave Protection 2. Archaeological Statutes B. Legislative Models 1. Archaeological Resources Protection Act of 1979 2. Revised Code of Washington 3. Native American Graves Protection and Repatriation Act 4. Columbia River Gorge National Scenic Area Management Plan 5. National Historic Preservation Act Amendments of 1992 C. Issues Hoped To Be Resolved in SB 61 III. The Legislative Process A. The 1991 Legislative Session 1. Senate Bill 225 2. House Bill 3464 B. The 1993 Legislative Session: SB 61 Begins as Four Separate Bills 1. Senate Bill 60 2. Senate Bill 61 3. Senate Bill 495 4. Senate Bill 497 C. Consensus Bill 61--The Senate Phase D. SB 61--The House Phase E. Results of Rulemaking 1. Dispute Resolution Rules 2. Archaeological Permit Rules IV. Results A. Qualified Successes B. Shortcomings C. Proposals to Supplement SB 61 and Further Strengthen Oregon's Cultural Resource Laws V. Conclusion

1. INTRODUCTION

   Archaeological research indicates that indigenous peoples first populated parts of Oregon more than 13,000 years ago.(1) Excavations near Malheur Lake in the Great Basin region of Oregon have uncovered sagebrush bark sandals, rabbitskin robes, nets, grinding tools, and weapons dating back more than 6,000 years.(2) While tribal communities thrived throughout the state, the area around The Dalles was a particularly active major trading center for the entire Northwest region.(3) During the summer months, as many as 22,000 people gathered to exchange goods and stock up on salmon from the abundant harvest.(4) Recent discoveries of Minnesota pipestone, Southwestern turquoise, Alaskan copper, and idols of apparent Mayan origin attest to The Dalles' vast trading network.(5)

   Traces of the pervasive historical presence of native tribes in Oregon have proved tempting for artifact collectors. Valuable archaeological sites have been looted and Native American graves plundered for years.(6) When the passage of the Archaeological Resources Protection Act (ARPA)(7) in 1979 made it illegal to excavate or surface collect on federal lands, professional looters and hobbyists simply transferred their activities to state and private lands, where the dearth of laws protecting such sites enabled them to loot with near impunity.(8) Federal public lands are still targets, however. A recent study by the U.S. Forest Service reports that professional looters on federal lands have simply become more sophisticated in their methods of evading apprehension.(9) Although professional looters generally decimate a single site, the vast legions of casual collectors and weekend hobbyists wreak far more cumulative damage over larger areas.(10)

   The effect of the loss of these historic and cultural resources cannot be underestimated. Fragile archaeological sites cannot be replaced, and much valuable information is lost to future study.(11) Aside from the objective scientific importance of these sites, however, damage to Indian burial sites, no matter how ancient, causes genuine grief in contemporary tribal members, who feel as strong a connection with ancient ancestors as with grandparents and great-grandparents.(12)

   To add insult to this psychic injury, in Oregon, as in other states, prosecutors have had a very difficult time securing convictions against violators.(13) These difficulties stem from two different sources. The first is local sympathy towards corectors--many communities consider relic hunting a harmless recreational activity.(14) The problem this presents becomes particularly pronounced when artifact collecting in an area is so pervasive that it becomes impossible to pick an impartial jury.(15)

   The second difficulty prosecutors face is proving the violation. In the past, Oregon law contained three major statutory loopholes that enabled violators to undermine the prosecutor's case. First, while the Oregon statutes allowed collecting on private land pursuant to the landowner's written permission,(16) the statute did not explicitly require prior written permission. Thus, violators were often able to obtain after-the-fact permission from corector-friendly landowners and thwart the prosecutor's case.(17) Second, the statute allowed selling or possessing Native American human remains or artifacts that had been removed from the soil by any means other than human action.(18) Thus, violators not caught red-handed in a trench could usually claim that natural forces had exposed the item on the surface.(19) Third, the statute allowed the retention of artifacts found inadvertently on the surface of the ground.(20) This provision acted similarly to the "other than human action" language. A violator could always claim to have stumbled across an artifact lying on the surface. The prosecutor would then bear the burden of disproving this statement.

   Finally, apprehending violators is notoriously difficult. Proper surveillance on public lands is expensive, and state and federal agencies simply do not have the equipment or the personnel to monitor sites effectively.(21)

   These multifarious difficulties caused Senate Bill 61 (SB 61) to be born. As originally drafted by the Oregon State Historic Preservation Office, sought to close the loopholes in the statute, curb vandalism, and conform state law to the federal requirements of the Native American Graves Protection and Repatriation Act (NAGPRA).(22) However, when the tribes of Oregon became involved in the drafting process, additional goals came to the forefront.

   This Comment begins by examining the history of SB 61, comparing Oregon's prior cultural resources laws with state and federal legislative models, and identifying the goals that SB 61's proponents sought to achieve. The paper then follows SB 61 through the tortuous legislative process, and chronicles the concessions given and demands made as conflicting interests sought to ensure the Bill's passage without yielding core goals. Next, the Comment takes a critical look at the final product and its administrative miles. The Comment concludes by examining the successes and shortcomings of SB 61, discussing possible problems that may arise in its implementation, and suggesting additional measures to strengthen future protection of Oregon's archaeological and cultural resources.

2. BACKGROUND

   1. Oregon's Cultural Resources Laws Prior to SB 61

      Oregon's cultural resources laws are split into three different statutory sections. Laws protecting Indian graves are found in sections 97.740 through 97.760 of the Oregon Revised Statutes (ORS). Laws protecting archaeological sites and objects are located in ORS sections 358.905 through 358.955. The archaeological permitting process is set forth in ORS sections 390.235 through 390.237. These statutes now exist concurrently with the laws created by SB 61.

      1. Grave Protection

         Oregon's Native American tribes historically used many methods to inter their dead. Many tribal ancestors were buried in graves along with objects needed for their journey to the afterlife, ceremonially laid above ground in caves, or placed on raised platforms.(23) The Oregon legislature had not taken these different methods of disposition into account in the grave protection statute, which limited its protection to cairns and graves.(24) For example, the statute prohibited the sale or possession of human remains or artifacts taken only from a Native American grave or cairn.(25) This meant that collectors were free to sell or display in their homes human remains found in caves or otherwise above ground. The legislature thus left tribes powerless to protect the remains of their ancestors found in areas other than graves or cairns. This double standard was not only illogical, but clearly painful for the tribes.

         Excavation of Native American graves or cainis required prior notice to the State Historic Preservation Office, and prior written consent of the appropriate Native American tribe.(26) Reinterment following the excavation was to be done at the archaeologist's expense under tribal supervision.(27) The statute also provided that where necessary to prevent "imminent destruction" of the burial site, an archaeologist was allowed to remove items for reinterment with only notice to the tribe, not tribal consent.(28) Because the Oregon legislature did not set out what constituted "imminent destruction," the phrase was not limited to destruction by natural means (such as by impending flood or mudslide). Tribal governments viewed this as a loophole for proceeding without tribal consent, and felt that private and state developers often abused the loophole providing notice only, claiming that destruction by a backhoe was imminent.(29)

         The legislature arnended the statute in 1981 to allow tribes or tribal members to institute civil suits against violators.(30) Tribes could seek a variety of remedies: forfeiture of the human remains, burial objects, or any equipment used in the violation; punitive damages if the violation was willful; and even actual damages for emotional distress.(31)

      2. Archaeological Statutes

         Unlike the burial statutes, Oregon's archaeological statutes drew a sharp line between provisions that applied to state land and those that applied to private land. The statutes allowed excavations on private land and the subsequent possession or sale of any artifacts recovered, as long as the excavator obtained the landowner's permission.(32) The statutes did not place any restrictions on private landowners, who were free to excavate, sell, or even destroy any archaeological site found on their property.

         The provisions for archaeological objects found on public land were only slightly more stringent. Excavating an archaeological site on public land required a permit,(33) Which the State Department of Parks and Recreation could issue after consulting with the affected Indian tribe and the Commission on Indian Services.(34) Tribes were unhappy with this...