Warp and weft: weaving a blanket of protection for cultural resources on private property.

• Author: Callahan, Constance M.

1. Introduction II. Current Protections for Private Sites

   1. Deterrence Programs

      1. Permit Requirements for Sites Not Associated

         with Burials

      2. Burial Desecration Statutes

      3. ARPA Trafficking Provisions

      4. Umbrella Statutes

   2. Conservation Programs

      1. State Regulatory Controls

      2. Registries and Certifications

         a.National Register b.State Registers 3. Conservation Easements and the Uniform

         Conservation Easement Act

      4. Acquisition in Fee by State or Private

         Party

3. Summary

1. INTRODUCTION

   Archaeological sites provide information about past ways of life, ancient and not-so-ancient belief systems, and environmental adaptations of human cultures. These stockpiles of information have slowly accumulated around the world, including in North America, where some scholars claim humans have been in residence for close to 40,000 years.(1) While scientists and laypersons learn a great deal from archaeological research, and the public as a whole is fascinated by archaeology, this fascination, combined with Anglo-American racist attitudes about Native Americans,(2) has had a destructive impact upon the nation's archaeological sites. Domestic interest and foreign demand for Native American contemporary art and antiquities has fueled an epidemic of pothunting, or looting, of ancient habitation sites and Native American burial grounds.(3) Rummaging through such grounds in search of artifacts destroys the stratigraphy (or geological levels) of the site, from which most archaeological information is gained. Moreover, should a site contain skeletal remains, looters not only disturb the site, they also desecrate a human grave.

   Several federal laws have been passed in the last century to protect cultural resources on public and Indian lands,(4) but these statutes have done little to protect sites on private lands from pothunting. Because private lands make up most of the property in this country, a large proportion of the archaeological sites in the nation are still unprotected from looting by the owners of the property. Federal laws fail to address many aspects of the pothunting problem due to constitutional constraints on the expansion of federal power. The Archaeological Resources Protection Act of 1979 (ARPA),(5) for instance, only prohibits unauthorized disturbance of cultural resources on public or Indian lands, except in certain circumstances, such as when there is a violation of state or local law and resources are transported across state lines.(6) Federal law, therefore, creates a loosely-woven net of protection on federal lands, which needs to be supplemented by more specific controls at the state and local level.

   Unfortunately, many state laws resemble the federal laws in that they only protect sites on public lands or Indian lands, or are only concerned with unauthorized digging on private lands. For example, Virginia law forbids any disturbance of "any object of antiquity on state-controlled land, or on a state archaeological site or zone without first receiving a permit . . . . "(7) Many state laws, which resemble Virginia's, are limited to protection of sites on state lands. Their application is thus limited, particularly in the East, where due to earlier settlement a much smaller proportion of public lands exist than in the West.

   What little protection presently exists has taken a long time to achieve because, until recently, the sacred cow of private property has prevented lawmakers from imposing stricter protections for cultural resources on private lands.(8) The U.S. Supreme Court's current conservatism has increased fears that many land use regulations may be held to violate the Fifth Amendment's prohibition of uncompensated takings.(9) In spite of these concerns, some states have taken steps to institute land use controls that may protect threatened cultural resources. For instance, the Indiana Supreme Court has held that a restriction on strip mining property containing an archaeological site is not a taking.(10)

   Internationally, many nations have passed umbrella statutes, which vest ownership of all archaeological resources discovered within the nation's boundaries in the state. For instance, the Guatemalan Constitution states that all "[a]rchaeological monuments and relics . . . are assets of the state."(11) Mexico passed its first umbrella statute in 1897, and has continued to extend its sovereign ownership over archaeological finds in the succeeding years.(12) Among the other nations that have passed umbrella statutes are Argentina, Belize, Egypt, Jordan, Lebanon, Mauritania, and Venezuela.(13) The use of such laws in the United States is suspect, because of the history of restrictions on uncompensated takings of private property, and the general disfavor for restrictions on alienation of property.(14) Unquestionably, however, much can be learned from the experiences of the international community in dealing with this problem.

   Despite the problems detailed above, a variety of means are available under state and federal law to protect cultural resources on private property. These methods can be broken down into two types: deterrence and conservation. Section II of this comment examines these two major types of protection for cultural resources, explores how most existing programs are disjointed at all levels, and recommends ways to improve enforcement of such laws. Section III concludes with recommendations for improving and interweaving various methods of protection into an inter-jurisdictional legal "blanket" that can be used to protect cultural resources from both pothunting and property development.

2. CURRENT PROTECTIONS FOR PRIVATE SITES

   1. Deterrence Programs

      Deterrence refers primarily to the enforcement of state and federal criminal laws that forbid certain activity with respect to cultural resources. The goal of deterrence is to dissuade people from disturbing any known or unknown archaeological sites. There are four primary methods used to deter the destruction of archaeological resources on private lands: 1) state permit requirements for archaeological investigations, 2) burial desecration statutes, 3) the trafficking provisions of ARPA,(15) and 4) state umbrella statutes.

      1. Permit Requirements for Sites Not Associated with Burials

         A few states require that all investigations of archaeological sites, with or without associated burials, have a permit issued by the State Historical Preservation Officer (SHPO) or similar state authority. The requirements vary between states in terms of the triggering requirements and the guidelines for issuing the permits. Many of these laws complement state zoning and land-use regulation programs.(16)

         Under Alabama law, only authorized state employees or agents are allowed to conduct excavations of archaeological sites within the state.(17) A violation of this or the other provisions of the Alabama act regarding "Aboriginal Mounds, Earthworks, and other Antiquities"(18) is a misdemeanor and will result in a fine of up to one thousand dollars.(19)

         Recently enacted Indiana law requires that any disturbance of "the ground for the purpose of discovering artifacts or burial objects "must be in accord with a plan developed or approved by the Indiana Department of Natural Resources, Division of Historic Preservation and Archeology.(20) Violation of this requirement is a Class A misdemeanor, subject to up to one year in prison or a five thousand dollar fine.(21) However, if a person working on her own land for a purpose other than archaeological investigation disturbs an archaeological site and reports the discovery as required, the State must respond to her report within thirty days, or it is powerless to stop the activity.(22)

         West Virginia, like Indiana, recently passed an archaeological permit requirement. Any excavation or disturbance of any site or grave "of historical significance" must have a permit from the State Director of Historic Preservation, unless the investigation is being conducted under ARPA authority or under section 106 of the National Historic Preservation Act.(23) Any unlawful site disturbance is a misdemeanor.(24) This language, paralleling the language in ARPA, implies that any site that is not "of historical significance" is not protected by the state permit requirements, and can be looted with impunity. The statute, however, does not describe how to determine significance. This clause could result in the same problems that have plagued ARPA prosecutions, such as proving that the resource in question was important or valuable before the pothunters found it.(25)

         In Washington, in order to excavate an archaeological site not associated with human remains, the investigator must obtain both the landowner's permission and a permit from the SHPO.(26) The Washington code expressly mandates that the Director of the state archaeological research center consult with tribal authorities in setting guidelines for the issuance of permits.(27)

         Far fewer states have instituted controls on archaeological investigations in general, as compared to controls on disturbing gravesites. This distinction between archaeological sites and gravesites has resulted in one of the larger holes in the web of protection and is a natural result of the reluctance of legislators to interfere with private uses of private property absent a pressing health or safety reason. Legislators in some states have indirectly attempted to address the problem. Oregon, for example, attempts to control excavating on private lands by requiring that all artifacts sold or transferred be accompanied by a certificate of origin indicating that the item was obtained with the landowner's knowledge and permission.(28) This requirement is frequently avoided by the use of forged certificates of origin.(29)

         At best, permit provisions should apply to all lands within the state, public and private. Drafters of such legislation should avoid using language about the significance of a site and leave de...