NAGPRA is the latest in a line of federal legislation aimed at protecting archeological resources. This page summarizes the most significant statutes. It also lists other federal crimes which may be charged in connection with unauthorized archeological activity.
Links are given to access the cited statutes and regulations. Theses links and others are given at the bottom of the page.
Note: All federal statutes and regulations regarding archeology are collected at - http://swanet.org/legal.html.
To jump to the following sections, click below:
Antiquities Act of 1906 (P.L. 59-209, 16 U.S.C. 431-433 (1906)) (to access the text of the code, click here.)
This act was the first general statement of a federal policy to preserve historic and prehistoric sites on federal lands. It authorizes a permit system for investigation of archeological sites on federal and Indian lands and grants the President authority to establish national monuments on federal lands to preserve archeological sites. The act covers antiquities on lands owned or controlled by the federal government and gives authority for their proper care and maintenance to the departments having jurisdiction over those lands. This includes federal lands and Indian reservations.
Violation of the statute is a misdemeanor punishable by fines up to $500 and/or 90 days imprisonment.
Although the authority to regulate the excavation or collection of archeological remains now rests principally with ARPA (see below), the Antiquities Act is still the means through which national monuments are created.
For an extensive history of archeological and historic preservation before the Antiquities Act of 1906, and legislative history of the act, see Robert F. Lee, The Antiquities Act of 1906, 1970, published by the Office of History and Historic Architecture, National Park Service.
Robert H. McLaughlin, The Antiquities Act of 1906: Politics and the Framing of American Anthropology & Archeology, 23 Okla. City U. L. Rev. 61 (Spring-Summer 1998). A very interesting article discussing the legislative history and historical context of the act. It argues that American archeology has long been political and tied to nationalism. The author is a graduate student in the U. of Chicago's anthropology program.
Historic Sites Act of 1935 (P.L. 74-292, 16 U.S.C. 461-467 (1935)) (to access the text of the code, click here.)
This act declared a federal policy to preserve
historic and prehistoric properties of national significance. It
gives the Secretary of the Interior authority to make historic surveys
and other powers to protect historic properties and establishes the National
Historic Landmarks Program. There is no enforcement section.
National Historic Preservation Act (NHPA) of 1966 (P.L. 89-665, 16 U.S.C. 470-470t) (to access the text of the code, click here.)
This act established a federal policy of cooperation with other nations, tribes, states, and local governments to protect historic sites and values. NHPA authorizes the National Register of Historic Places, creates the Advisory Council on Historic Preservation, provides further consideration fro the National Historic Landmarks, and creates procedures for approving state and local government programs for historic preservation.
Regulatory provisions require State Historic Preservation Officers (SHPOs) to prepare and implement state historic preservation plans.
NHPA had major amendments in 1980. See P.L. 95-515. The primary effect was to codify portions of Executive Order 11593 which requires federal agencies to develop programs to inventory and evaluate historic resources. See 36 F.R. 8921 (1971), reprinted in 16 U.S.C. 470h-2 (Supp. IV 1980).
NHPA also authorizes federal and federally funded projects to fund 'salvage archeology' projects to preserve archeological data from being destroyed by construction projects or other potentially destructive activity. This provision was further developed by AHPA, below.
Archeological and Historic Preservation Act (AHPA) of 1974 (P.L. 86-523 as amended by P.L. 93-291; 16 U.S.C. 469-469c (1974)) (to access the text of the code, click here.)
This act requires federal construction projects and federally licensed projects or activities to preserve archeological and historic data and materials. Up to 1 percent of project funds may be appropriated to conduct archeological data recovery activities, or 'salvage archeology'. Additional funds may be used for archeological work required in the project planning phase.
Because of the extent of federal, and federally funded, construction projects this act has been a real boon to archeologists. It has almost single-handedly established the mini industry of contract archeology. For examples of some contract archeological firms, click here - http://www.heritageresearch.com/crm.htm or here - http://riga.fnr.umass.edu/tei/umas/index.html.
Archeological Resources Protection Act (ARPA) of 1979 (P.L. 96-95, 16 U.S.C. 470aa-ll (1979)) (to access the text of the code, click here.)
This is the most far-reaching law regarding the preservation of archeological resources. The statute prohibits the vandalism, alteration, or destruction of historic or prehistoric sites on federal or Indian lands and the the sale, purchase, transport, or reciept of any archeological resource if it was excavated or removed from public or Indian lands in violation of state or local law. The criminal penalties include fines of up to $250,000 and up to five years imprisonment. Civil penalties are also available.
ARPA requires that a federal land manager issue a permit to excavate or remove archeological resources from federal or Indian lands. Permits for archeological work on Indian lands may only be approved after consultation with the Indian allottee or Indian tribe having jurisdiction over the site.
The statute does not cover archeological sites on private land.
ARPA was amended significantly in 1988. See P.L. 100-555 & 588; U.S.C. 470aa-mm.
U.S.C.A. cites a few cases on ARPA.
David G. Martin, The Archeological Resources Protection Act, other Federal Legislation, and the Protection of Cultural Resources in the United States, a 1987 M.A. thesis from the U. of Arizona Dept. of Anthropology, has some legislative history. It is a good source to see how professional archeologists relate to the legislation. It is found at M9791 M381 1987 at the Arizona State Museum library. It is not an essential source but would be useful if one were looking at the context out of which ARPA arose.
To see an article about the largest violation of ARPA for which a conviction has been obtained, click here - http://www.archaeology.org/9801/newsbriefs/looters.html.
Other related federal legislation
Department of Transportation Act (P.L. 89-670, 49 U.S.C. 1651-1659) (to access the text of the code, click here.) - Provides that no program undertaken by the Federal Highway Administration, Federal Aviation Administration, Urban Mass Transit Administration, or Coast Guard will be approved when it requires use of land from a historic site of national, state, or local significance unless there is no feasible and prudent alternative but to use such lands, and unless the program includes all possible planning to minimize harm to the historic properties.
National Environmental Policy Act (P.L. 91-190, 42 U.S.C. 4321-4361) (to access the text of the code, click here.) - The Environmental Impact Statement (IS), which must be prepared prior to any federal act which may significantly alter the quality of the human environment, must take into account historic and cultural sites, including archeological sites.
American Indian Religious Freedom Act (AIRFA) (P.L. 95-341) (to access the text of the code, click here.) - This act sees to protect and preserve traditional Native American, Eskimo, Aleut, and Hawaiian spiritual beliefs and practices by providing access to ancient sites used in native religious practices. AIRFA directs federal agencies to consult with native traditional religious leaders to develop and implement policies and procedures to protect and preserve native cultural and religious traditions. AIRFA must also be considered in establishing regulations under ARPA.
In addition to the federal statutes above aimed directly at archeological resources, federal authorities may charge people who illegally excavate or remove archeological resources with the following federal crimes. This list is not exhaustive.
Similar criminal charges are available under state laws.
Sources for the above information
Carol Carnett, Legal Background of Archeological
Resources Procession, Technical Brief No. 11, June 1990, U.S. Department
of the Interior, National Park Service.
This brief paper was the source of most of the above
material. It gives an introduction to ARPA and related legislation.
It points to some further resources for research.
This paper is available in microform in the Gov.
Docs section of the main U. of Arizona library at
I 29.59/6:11. It is also available directly from NPS at - http://www.cr.nps.gov/aad/aepubs.htm.
Sherry Hutt et al., Archeological Resource Protection,
1992, The Preservation Press, National Trust for Historic Preservation.
This book gives an overview of ARPA. It gives
more extensive information about the historic background of ARPA and its
specific provisions. The authors discuss the process of bringing
criminal and civil charges against violators of ARPA. Its appendices
include the full text of ARPA as amended, regulations, and procedures of
various agencies involved in its enforcement. The audience of the
book is law enforcement officers, lawyers, and land managers charged with
enforcing ARPA as well as cooperating archeologists. Its authors
include an archeologist, a law enforcement officer and a Maricopa County
judge, Sherry Hutt.
This book is available at the main U. of Arizona
library at KF4310 .H88 1992. It is also available at the Arizona
State Museum library.
Sherry Hutt, The Civil Prosecution Process of
the Archeological Resources Protection Act.
Another report by one of the editors of the above
book. It gives a step by step guide to civil prosecutions under ARPA.
Not available at the U. of Arizona library, it may be ordered from the
National Park Service at - http://www.cr.nps.gov/aad/aepubs.htm.
This report is also reprinted in the Arizona State Bar CLE materials cited
in the Other Resources section.
Accessing the Above Statutes and Other Research Tools
The following web sites may be used to access the above statutes and regulations.
To search the U.S. Code, click here - http://uscode.house.gov/usc.htm#search.
To search the Code of Federal Regulations, click here - http://www.access.gpo.gov:80/nara/cfr/cfr-table-search.html.
To search the holdings of the University of Arizona's libraries, click here - http://dizzy.library.arizona.edu/.
To search the Web with Metacrawler for additional resources, click here - http://www.go2net.com/search.html.
All of the pertinent federal statutes and regulations
regarding NAGPRA and archeology may be found at - http://swanet.org/legal.html.