Walters, Julie (Glenn Black Laboratory of Archaeology, Indiana University,
Bloomington)
PROBLEMS WITH CONTEMPORARY AMERICAN ARCHAEOLOGICAL LEGISLATION
Widespread national intererst in the disposition of historic and prehistoric burials
has added new fuel to the traditional debate over who owns culture. The debate
has reached the halls of Congress, where it has resulted in two legislative acts:
the Archaeological Resources Protection Act (ARPA) and the Native American Graves
Repatriation Act. Additionally, the subject is pressuring more and more state
legislators to examine their own state laws. For example, Indiana has recently
amended its own cultural resources legislation to provide a series of new sections
addressing, among other issues, buried human remains and artifacts.
Although the federal and state laws represent a new enthusiasm in a heretofore
ignored area, the theme which unites the body of archaeological legislation is
the ultimate failure of the laws--both on their face and in their application
(or, rather, the lack thereof).
The legislation suffers from a variety of problems. On the state level, statutes
frequently lack substance. These laws most frequently consist of two ineffective
sections: the "statement of policy" section and the "creation of the historic
preservation commission" section. Policy statements, although impressive on paper,
provide little or no legal guidance as to cultural resource protection. In addition,
"commissions" of historic preservation created by the statutes are given little
power. If, by chance, the state laws mention penalties for excavating ancient
remains and artifacts, they are often weak, offering little disincentive for blackmarketeers.
The risk in being charged a $500.00 fine is negligible compared to the potential
for million-dollar profits.
When the "commissions" are provided strong laws and enforcement power, they frequently
lack sufficient funding to utilize that power, for in a political climate favoring
simple "wars on drugs" and wars on distant despots, expending millions of dollars
on "broken pottery" and "old bones" does not play well at the ballot box.
Facially, the federal statutes suffer from many similar problems, particularly
weak penalty provisions and unclear terms. Small fines mean little to a successful
blackmarketer, and the laws frequently target the wrong people: low-level "couriers"
can be prosecuted, while the true minds behind the business remain untouched (much
like drug lords). Further, under the Native American Graves Protection and Repatriation
Act, the terms "illegal trafficking" and "cultural items" are left undefined by
the statue (and have yet to be defined in court). Leaving such important terms
to be defined by judges, who are not archaeologically-trained, invites legal havoc.
The federal laws share the same problems of application with their state counterparts:
lack of funding, lack of enforcement, and lack of political interest. While the
federal statutes represent a laudatory effort on the part of Congress, the current
laws are frequently nothing more than mere platitudes. In fact, U.S. Attorneys
do not seek indictments under ARPA, even in the most clear-cut cases, because
they feel that other, more clearly- written laws provide better opportunities
for convictions in those cases.
While archaeological resources protection remains merely a one-line joke in a
Hollywood adventure movie, the federal government and the states will continue
to treat the issue as secondary. Thus, the country will continue to lose its precious
archaeological resources while the black market continues to thrive. [return to 1991 abstracts menu][continue to next]