COMMENT
PROTECTING OUR PAST: THE NEED FOR
UNIFORM REGULATION TO PROTECT
ARCHAEOLOGICAL RESOURCES
ABSTRACT
Archaeological resources are invaluable to American society because
they provide a vehicle in which to examine past civilizations and to
reconstruct our history. Sadly, our fragile archaeological resources are
being devastated by wide-scale looting. Looters ransack archaeological
sites, scavenging for cultural artifacts—a single pre-Columbian basket
could fetch over $150,000 on the black market.
Unfortunately,
archaeological resources are finite, depletable, and nonrenewable.
Protection of these resources poses a complex legal quagmire, seemingly
putting private- and public-ownership interests at odds.
Further
complicating matters, is the need for varying legal policies of different
states and countries to cooperate in a cohesive manner. Consequently, a
unified umbrella statute vesting ownership of American archeological sites
in the government is needed to affirmatively protect our cultural resources.
Although an umbrella statute vesting ownership in the government seems in
direct contrast to private possession of archeological resources, a properly
devised statute can provide means to allow for private ownership and even
benefit the private sector, while protecting our resources for future
generations.
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TABLE OF CONTENTS
I.
II.
III.
IV.
V.
INTRODUCTION ........................................................................... 354
LAWS GOVERNING ARCHAEOLOGICAL RESOURCES .................. 357
A. International Laws ............................................................ 357
B. The Federal Response in the United States: The
Antiquities Act of 1906 ...................................................... 360
1. Archaeological Resources Protection Act of
1979 .......................................................................... 362
2. National Historic Preservation Act ........................... 364
3. Native American Graves Protection and
Repatriation Act........................................................ 365
C. Survey of State Laws: A Need for Uniformity ................... 365
AN UMBRELLA STATUTE THAT INCLUDES MEANS FOR
CERTIFICATION ........................................................................... 371
A. Newly Discovered Artifacts ............................................... 377
B. Certification ...................................................................... 378
C. Duties Imposed on the Government .................................. 380
WILL AN UMBRELLA STATUTE FIT INTO OUR
CONSTITUTIONAL FRAMEWORK? ............................................... 382
CONCLUSION .............................................................................. 397
I. INTRODUCTION
Sitting on the Little Colorado River in Arizona, the Raven Site is a 300room pueblo that was occupied from about 1000 A.D. until about 1450
1
A.D. At one point, a man claiming to be an archaeologist from Harvard—
although in reality he lacked any archaeological education or training—
leased the privately owned land where the Raven Site was located from the
2
landowners to set up and direct a “pay-to-dig” program. Visitors paid him
about seventy-five dollars per day to learn excavation techniques.3
“Visitors . . . were shown how to dig in neat square holes, even using
the metric system. Smart people thought that they were contributing to
scientific research, but no one could tell these people that the project was a
1. Sherwood Ranch Pueblo/The Raven Site Ruins, WHITE MOUNTAINS
ONLINE, http://www.wmonline.com/ATTRACT/raven.htm (last visited Jan. 18,
2011).
2. Pay to Dig, or Pay to Loot?, TUCSON CITIZEN BLOG, (Sept. 16,
2009), reposted at http://groups.yahoo.com/group/NatNews/message/49484 (Nov.
11, 2009) [hereinafter Pay to Dig] (The Chronography Blog, originally maintained
by Doug Gann of the Center for Desert Archeology, is no longer available).
3. Id.
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scam without getting sued,” wrote Doug Gann of the Center for Desert
4
Archaeology describing the pay-to-dig operation.
Because the excavation occurred on privately owned land, it was legal
with one exception: if human remains were found, excavation should have
stopped under the Native American Graves Protection and Repatriation
5
6
Act. The operation completely stripped over 100 ancient pueblo rooms.
Because Gann has seen about thirty similar pueblo sites, he asserted that it
was essentially impossible that the “director” did not encounter human
remains, yet the excavation never halted due to the discovery of human
remains.7
Fortunately, in 2003, the landowners donated the Raven Site to the
Archaeological Conservancy, an organization aimed at legitimately
8
preserving archaeological resources. Gann helped the Archaeological
Conservancy with the clean up:
[T]he first thing I found in the abandoned “laboratory” was
a child’s skull in a drawer with other bones, some
decorated with the word “human” written in pencil. . . .
Years later an anonymous donor sent me a CD from an
auction house where the “director” was trying to sell all of
the whole vessels at a high-end east coast auction house. I
have no idea if he got the hundreds of thousands of dollars
he was asking for the collection.9
As this story demonstrates, the need for protection of archaeological
sites is vital. “[A]rchaeological resources are finite, depletable, and
nonrenewable” resources.10
In part, what makes protection of
archaeological sites so difficult is that virtually no law extends to sites
4. Id.
5. Id. (citing 25 U.S.C. §§ 3001-13 (2000)); see also Pamela D’Innocenzo,
“Not in My Backyard!” Protecting Archaeological Sites on Private Lands, 21 AM.
INDIAN L. REV. 131, 134-35 (1997).
6. Pay to Dig, supra note 2.
7. Id.
8. Sherwood Ranch Pueblo/The Raven Site Ruins, supra note 1; see also The
Archeological
Conservancy,
AM.
ARCHAEOLOGY,
http://www.americanarcheology.com/aaabout.html (last visited Jan. 18, 2011).
9. Pay to Dig, supra note 2.
10. Patty Gerstenblith, Identity and Cultural Property: The Protection of
Cultural Property in the United States, 75 B.U. L . REV. 559, 564 (1995)
[hereinafter Gerstenblith, Identity and Cultural Property].
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11
While it is illegal to remove
located on privately owned land.
archaeological resources from most public lands, it is permissible to
remove and possess artifacts from privately owned land with the
12
Once artifacts are successfully removed from
landowner’s consent.
public lands, it is essentially impossible to confirm their source of origin.13
This means that vandals have to be caught in the act of destruction;
otherwise, there is no way to distinguish whether an artifact was recovered
14
from privately or publicly owned land.
To maintain archaeological resources and protect sites located on
privately owned land, the United States needs to adopt an umbrella statute
that vests ownership of all archaeological resources in the government.
Current regulation of archaeological resources varies broadly among states,
but an umbrella statute could provide uniformity. However, simply
because ownership of archaeological resources vests in the government
initially, an umbrella statute does not prohibit the government from
relinquishing title to an individual in the future. In addition, under an
umbrella statute, individuals who already possess archaeological resources
would not be stripped of their ownership. Therefore, a certification system
is necessary to validate legitimately acquired archaeological resources.
This Article calls for immediate action by the United States to protect
archaeological resources, especially those located on privately owned land
because they are the most vulnerable. Part II provides an overview of
international, federal, and state legislation impacting archaeological
resources. Part III advocates for the adoption of an umbrella statute with a
system to certify legitimately obtained archaeological artifacts as the best
means to protect our archaeological resources. Finally, Part IV discusses
constitutional issues that could arise as a result of an umbrella statute—
most importantly, Fifth Amendment takings issues.
11. See id. at 600 (noting limited exceptions related to human burials);
D’Innocenzo, supra note 5, at 133.
12. See Gerstenblith, Identity and Cultural Property, supra note 10, at 600;
D’Innocenzo, supra note 5, at 133.
13. See Gerstenblith, Identity and Cultural Property, supra note 10, at 564;
D’Innocenzo, supra note 5, at 133.
14. See Gerstenblith, Identity and Cultural Property, supra note 10, at 564-65;
D’Innocenzo, supra note 5, at 133.
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II. LAWS GOVERNING ARCHAEOLOGICAL RESOURCES
A. International Laws
On the international market, the trade of illicitly obtained antiquities
15
Because most of the
can generate as much as $25 million annually.
cultural artifacts are recovered from looted sites, looting essentially
16
sustains the black market. And because archaeological looting is such a
“well-organized big business,” it is suggested that the only more-thriving
black market is the international drug market.17
Internationally, advocates for the protection of archaeological resources
generally focus on developing countries because these countries are usually
considered suppliers of cultural resources, while the United States and
Western Europe are considered demand countries.18 In fact, the United
States is often criticized as being the largest consumer of cultural
19
resources.
However, the trend in the current international legal regime focuses on
retention and restitution of countries’ cultural resources, regardless of
whether a country is considered developing.20 Therefore, the international
15. Derek V. Goodwin, Raiders of the Sacred Sites, N.Y. TIMES, Dec. 7, 1986,
§ 6 (Magazine), at 65, reprinted in RICHARD B. CUNNINGHAM, ARCHAEOLOGY,
RELICS, AND THE LAW 197 (2d ed. 2005).
16. John Alan Cohan, An Examination of Archaeological Ethics and the
Repatriation Movement Respecting Cultural Property (Part Two), ENVIRONS
ENVTL. L. & POL’Y J., Fall 2004, at 1, 10.
17. Patty Gerstenblith, Controlling the International Market in Antiquities:
Reducing the Harm, Preserving the Past, 8 CHI. J. INT’L L. 169, 169 (2007)
[hereinafter Gerstenblith, Controlling the International Market in Antiquities];
accord Cohan, supra note 16, at 9-10; Jodi Patt, Comment, The Need to Revamp
Current Domestic Protection for Cultural Property, 96 NW. U. L. REV. 1207, 1208
(2002).
18. Cohan, supra note 16, at 11 (“Generally speaking, the source or ‘supply’
countries whose cultural artifacts are under serious threat of plunder are in the
developing world, including India, Egypt and Afghanistan, while the ‘demand’
countries where smuggled items end up are concentrated in Europe and North
America.”); see also Patt, supra note 17, at 1209 (“Many of the nations that are rich
in archaeological artifacts, also known as ‘source nations,’ are unable to adequately
protect their archaeological sites because they lack the requisite developed police
forces and complex customs services needed to prevent looting.”).
19. Gerstenblith, Controlling the International Market in Antiquities, supra
note 17, at 174.
20. See JAMES CUNO, WHO OWNS ANTIQUITY? MUSEUMS AND THE BATTLE
OVER OUR ANCIENT HERITAGE 124 (2008).
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legal framework governing cultural resources is rooted in ownership and
21
export laws.
Many nations have enacted umbrella statutes whereby ownership of all
22
undiscovered cultural property vests in the government to deter looting.
Objects covered under such statutes vary between countries.23 In general,
the government asserts title even though it lacks possession.24 The
government can then allege theft if the property is removed from the
ground without permission.25 These statutes also vary in form26: “In some
instances the law is a legislative enactment, supplemented by export
restrictions, enforced by regulations, sanctions and penalties. In others, the
‘law’ may be a mere decree, proclamation, or newspaper notice.”27
The number of export laws governing antiquities began to rise at the
28
beginning of the twentieth century. Now most nations have laws either
regulating or prohibiting the exportation of antiquities.29 Some countries
require that artifacts be assigned licensing numbers.30 For export laws to
deter looting, other countries must respect the source country’s export
regulations when antiquities are not in compliance; this requires
31
For example, the
communication and cooperation between countries.
United States has established the Cultural Property Advisory Committee to
review requests from foreign governments for import restrictions.32 As a
result, the United States has agreed to place import restrictions on cultural
property from Bolivia, Cambodia, Canada, Colombia, El Salvador,
Guatemala, Honduras, Italy, Mali, Nicaragua, and Peru.33
21. Id. at 33.
22. 1 JESSICA L. DARRABY, ART, ARTIFACT, ARCHITECTURE AND MUSEUM LAW
§ 6:120 (2009); see also D’Innocenzo, supra note 5, at 140; Gerstenblith,
Controlling the International Market in Antiquities, supra note 17, at 177.
23. 1 DARRABY, supra note 22, § 6:120, at 424.
24. Gerstenblith, Controlling the International Market in Antiquities, supra
note 17, at 174; see also Patty Gerstenblith, The Public Interest in the Restitution of
Cultural Objects, 16 CONN. J. INT’L L. 197, 212-13 (2001) [hereinafter
Gerstenblith, The Public Interest].
25. Gerstenblith, Controlling the International Market in Antiquities, supra
note 17, at 174; Gerstenblith, The Public Interest, supra note 24, at 212-13.
26. 1 DARRABY, supra note 22, § 6:120, at 424.
27. Id.
28. Cohan, supra note 16, at 53.
29. Id.
30. Id. at 53-54.
31. Gerstenblith, The Public Interest, supra note 24, at 213.
32. CUNO, supra note 20, at 36.
33. Id. at 42.
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In addition to country-specific legislation, there are several
international conventions that promote the protection of cultural resources.
The United Nations Educational, Scientific and Cultural Organization
34
The United
(UNESCO) is the driving force behind these conventions.
Nations established this specialized agency to promote “the building of
peace, the alleviation of poverty, sustainable development and intercultural
dialogue through education, the sciences, culture, communication and
information.”35
The first international convention that solely targeted the protection of
cultural resources was the Hague Convention for the Protection of Cultural
36
Property in the Event of Armed Conflict. In response to World War II,
the Hague Convention was held in 1954.37 The Convention provides for a
limited number of refuge centers to house cultural property during
38
wartime. The UNESCO maintains a list of these immune centers in the
International Register of Cultural Property Under Special Protection.39
Members must avoid endangering any entry on the registry.40 In addition,
the Hague Convention imposes a duty on members to actively protect their
41
own cultural property during times of peace.
In 1970, the UNESCO passed the Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export and Transfer of
42
Ownership of Cultural Property (UNESCO 1970). The UNESCO 1970
values cultural resources as “one of the basic elements of civilization.”43
Also, it calls for international cooperation among its members.44
34. Theresa Papademetriou, International Aspects of Cultural Property: An
Overview of Basic Instruments and Issues, 24 INT’L J. LEGAL INFO. 270, 274
(1996).
35. Introducing UNESCO: What Are We, U.N. EDUC., SCI. & CULTURAL ORG.,
http://www.unesco.org/new/en/unesco/about-us/who-we-are/introducing-unesco/
(last visited Jan. 18, 2011).
36. CUNO, supra note 20, at 25 (noting that the Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict has never been
ratified by the United States).
37. Id.
38. Papademetriou, supra note 34, at 276.
39. Id.
40. Id.
41. Id.
42. Id. at 274; see also CUNO, supra note 20, at 26.
43. CUNO, supra note 20, at 26.
44. Id. at 26-27.
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Two years later, the UNESCO adopted the Convention Concerning the
45
Protection of the World Cultural and Natural Heritage. For a site to be
included on the World Heritage List, the government of the country where
46
the site is located must nominate it. A committee of experts then assesses
the site to determine if it is “of outstanding universal value.”47 The list
includes about 300 sites located in over 100 countries.48
During the 1980s, the UNESCO sought help from an independent
agency, the International Institute for the Unification of Private Law
(UNIDROIT).49
The UNIDROIT drafted the Convention on the
International Return of Stolen or Illegally Exported Cultural Objects
50
(UNIDROIT 1995). The major distinction between the UNESCO 1970
and the UNIDROIT 1995 is the emphasis that the UNIDROIT 1995 places
on the return of illegally exported cultural resources rather than the
51
The UNIDROIT 1995 requires
prevention of their illegal exportation.
that a source nation seeking restitution of cultural property bring the claim
within three years of discovering its location; however, there is a fifty-year
limitation in which a claim must be brought.52 The UNIDROIT 1995
allocates the burden of proof to the source nation seeking restitution.53 In
addition, the UNIDROIT criminalizes trade involving cultural property that
54
Those nations that
has been illegally exported from the source nation.
have ratified the UNIDROIT 1995 strive to prevent illegal exportation and
agree to return cultural property that arrives contrary to the source nation’s
55
exportation regulations.
B. The Federal Response in the United States:
The Antiquities Act of 1906
In the United States, advocacy for protecting archaeological resources
56
Increasing awareness of the
first hit the political forum in 1882.
devastation to archaeological resources caused by vandalism prompted the
45. Papademetriou, supra note 34, at 273.
46. NEIL COOKSON, ARCHAEOLOGICAL HERITAGE LAW 258 (2000).
47. Id.
48. Id.
49. Cohan, supra note 16, at 50.
50. Id. at 50 n.658.
51. CUNO, supra note 20, at 49.
52. Cohan, supra note 16, at 50-51.
53. Id. at 51.
54. See id.
55. See id.
56. See Francis P. McManamon, Cultural Resources and Protection Under
United States Law, 16 CONN. J. INT’L L. 247, 256 (2001).
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57
The first provision of the Act
passing of the Antiquities Act of 1906.
allowed the President of the United States to declare “historic landmarks,
historic and prehistoric structures, and other objects of historic or scientific
interest that are situated upon the lands owned or controlled by the
58
The
Government of the United States to be national monuments.”
provision further stated, “When such objects are situated upon a tract
covered by a bona fide unperfected claim or held in private ownership, the
tract, or so much thereof as may be necessary for the proper care and
59
management of the object, may be relinquished to the Government.” The
second provision allowed for a means of obtaining a permit to conduct
60
archaeological investigation. The permit required that “the examinations,
excavations, and gatherings [be] undertaken for the benefit of reputable
museums, universities, colleges, or other recognized scientific or
educational institutions, with a view [of] increasing the knowledge of such
objects, and that the gatherings . . . be made [available] for permanent
preservation in public museums.”61
Lastly, the Act outlined the
punishment for anyone excavating, injuring, or destroying an
archaeological site located on government land: a fine of up to $500,
62
imprisonment for up to ninety days, or both.
Although the Act sought to deter unauthorized digging and vandalism,
63
Without any means of monitoring and
it was unsuccessful overall.
enforcement, simply identifying land as a national monument was
ineffective to prevent looting.64 Despite its inadequacy, the Act remained
one of the primary sources for archaeological-resource protection until
1974 when the U.S. Court of Appeals for the Ninth Circuit held that the
Act was unconstitutionally vague.65
57. Antiquities Act of 1906, 16 U.S.C. §§ 431-33 (2000); see also
McManamon, supra note 56, at 256.
58. 16 U.S.C. § 431 (2000).
59. Id.
60. Id. § 432.
61. Id.
62. Id. § 433.
63. See RICHARD B. CUNNINGHAM, ARCHAEOLOGY, RELICS, AND THE LAW 187
(2d ed. 2005).
64. See id.
65. United States v. Diaz, 499 F.2d 113, 113-15 (9th Cir. 1974) (holding that
because the Act did not put potential violators on notice that antiquities could refer
to an object of a certain age or an object used for a certain purpose, it violated the
Due Process Clause of the U.S. Constitution).
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THOMAS M. COOLEY LAW REVIEW
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1. Archaeological Resources Protection Act of 1979
In response to the weakness of the Antiquities Act of 1906 and its
subsequent invalidation, Congress enacted the Archaeological Resources
66
The ARPA’s primary focus is to
Protection Act of 1979 (ARPA).
promote legitimate and prevent illegitimate archaeological investigation on
67
public land. Because the ARPA seeks to prevent unauthorized removal
of archaeological resources from federal land, like the Antiquities Act of
1906, the ARPA also requires a permit to conduct archaeological
68
investigation on public land.
The ARPA is primarily distinguishable from the Antiquities Act of
1906 because the ARPA provides a section containing definitions,
69
including a definition of archaeological resources covered under the Act.
Under that definition, archaeological resources include, but are not limited
to, “pottery, basketry, bottles, weapons, weapon projectiles, tools,
structures or portions of structures, pit houses, rock paintings, rock
carvings, intaglios, graves, human skeletal materials, or any portion or
piece of any of the forgoing items. Nonfossilized and fossilized
paleontological specimens . . . shall not be considered archaeological
resources.”70 In addition, the definition requires that the item be at least
100 years of age to qualify as a regulated archaeological resource.71
Another notable provision of the ARPA allows for the prosecution of
looting occurring on privately owned land. Under § 470ee(c), “[n]o person
may sell, purchase, exchange, transport, receive, or offer to sell, purchase,
or exchange, in interstate or foreign commerce, any archaeological resource
excavated, removed, sold, purchased, exchanged, transported, or received
in violation of any provision, rule, regulation, ordinance, or permit in effect
72
under State or local law.” Consequently, to trigger prosecution under this
provision, a person must obtain the archaeological resource in violation of
66. 16 U.S.C. §§ 470aa-470mm (2000); McManamon, supra note 56, at 265.
67. McManamon, supra note 56, at 267.
68. D’Innocenzo, supra note 5, at 136.
69. See Uri A. Jurist, Comment, Wild Burros, Fences, and ARPA: Viewing the
Archaeological Resources Protection Act as Property Clause Legislation, 5 U. PA.
J. CONST. L. 109, 119-20 (2003).
70. 16 U.S.C. § 470bb(1) (2000).
71. Id.
72. Id. § 470ee(c).
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state or local law, and a transaction disposing of the archaeological
73
resource by sale or trade must occur in another state or country.
The ARPA is often criticized because successful prosecution under the
74
One hurdle that prosecutors face is proving that
Act is difficult.
defendants removed archaeological resources from federal land with the
75
Although successful
knowledge that they were on federal land.
prosecution under the ARPA is rare, it is not impossible. For example, in
United States v. Gerber, Arthur Gerber was prosecuted under the ARPA for
76
This case is also
removing artifacts from a Hopewell burial mound.
notable because Gerber was prosecuted for removing artifacts from private
77
land. In Gerber, landowner General Electric, unaware of the significance
of the site, permitted the highway department to use the land for fill in
nearby road construction.78 While removing fill for the project, Bill Way,
a highway-department employee, unearthed artifacts.79 Because he was an
amateur artifact collector, Way knew the potential significance of the
artifacts, so he contacted Gerber, who was a well-known antiquities
dealer.80 Gerber paid Way $6,000 to show him the location of the site.81
Without General Electric’s permission, Gerber visited the site several
times, removing “silver earspools, copper axeheads, pieces of worked
73. Id.; see also Constance M. Callahan, Warp and Weft: Weaving a Blanket of
Protection for Cultural Resources on Private Property, 23 ENVTL. L. 1323, 133233 (1993).
74. See Gerstenblith, Identity and Cultural Property, supra note 10, at 596
(“Although ARPA has withstood constitutional challenges, criminal prosecutions
have been hindered by the often unclear language of the Act.”).
75. See Goodwin, supra note 15, at 201 (“[M]any law enforcement officers say
[the ARPA] is nearly impossible to enforce because it puts the burden on the
Government to prove materials have been taken from Federal lands, and to show
beyond a reasonable doubt that the diggers knew they were on Federal land.”).
76. 999 F.2d 1112, 1113 (7th Cir. 1993); see also Callahan, supra note 73, at
1333. The Hopewell people occupied areas of the eastern part of the United States
from as early as 100 B.C. to A.D. 500. Hopewell Culture, OHIO HIST. CENT.,
http://www.ohiohistorycentral.org/entry.php?rec=1283 (last visited Jan. 18, 2011).
The Hopewell culture is best known for its large earthworks, including large burial
mounds. Id. Archaeologists often refer to the rise of the Hopewell culture as an
“‘explosion’ of art, ritual, and ceremonial architecture.” Id.
77. See Callahan, supra note 73, at 1333 (noting that although the ARPA was
passed thirteen years before Gerber, it was the first prosecution of looting on
privately owned land under the ARPA).
78. Gerber, 999 F.2d at 1114.
79. Id.
80. Id.
81. Id.
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THOMAS M. COOLEY LAW REVIEW
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leather, and rare silver musical instruments, some with the original reeds
82
On the last visit, a General Electric security guard chased
preserved.”
Gerber from the site.83 After the series of devastating lootings, Gerber took
the artifacts to surrounding states to sell them.84 Prosecution under the
ARPA was available because Gerber removed the artifacts in violation of
state trespass and conversion laws and then transported the artifacts to
85
The court rejected Gerber’s constitutional challenges,
other states.
including his argument that the ARPA should be void for vagueness.86
Although many archaeologists hoped for a felony conviction, Gerber
pleaded guilty to five misdemeanor charges in exchange for the government
dropping the felony charges.87
2. National Historic Preservation Act
In 1966, Congress enacted the National Historic Preservation Act
88
(NHPA). The NHPA established the National Register of Historic Places
that “lists specific federally owned structures and historic areas or districts
significant to the history, architecture, archaeology, and culture of the
89
United States.” The provision most significantly affects archaeology by
requiring that any “‘[f]ederal or federally assisted undertaking’ must ‘take
into account the effect of the undertaking on any . . . site . . . or object that
90
is included in or eligible for inclusion in the National Register.’” The
NHPA recognizes that all levels of government, as well as private actors,
82. Id.
83. Id.
84. Id.
85. Id.
86. Id. at 1115; see also Callahan, supra note 73, at 1135 (explaining that
Gerber also argued that the ARPA violated the Equal Protection clause of the
Fourteenth Amendment of the U.S. Constitution because it distinguishes between
“private land pothunters” and “public land pothunters”).
87. Callahan, supra note 73, at 1336. But see Charles R. Walsh, Jr., Sovereign
Ownership of Private Property in the Name of Preservation: A Contradiction in
Terms and of the Constitution, 19 N.Y.L. SCH. J. HUM. RTS. 529, 534 (2003) (“In a
sense, Gerber became a martyr for amateur artifact collectors and recreational metal
detector users. Organizations such as the American Numismatic Association, the
Antique Tribal Arts Dealer Association, the American Society for Archaeology and
several metal detector manufacturers expressed their dissatisfaction with Gerber’s
conviction.”).
88. 16 U.S.C. §§ 470 to 470x-6 (2006); see also Gerstenblith, Identity and
Cultural Property, supra note 10, at 581.
89. Gerstenblith, Identity and Cultural Property, supra note 10, at 581.
90. CUNNINGHAM, supra note 63, at 407 (citing 16 U.S.C. § 470(f) (2006)).
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91
Therefore, the NHPA
need to be committed to effective preservation.
mandates that the state historic-preservation office (SHPO) be contacted
92
before any construction involving the federal government begins. While
this provision mandates an assessment of the potential impact on
archaeological resources, overall the NHPA is ineffective for protecting
archaeological resources because it is limited to federally owned land and
93
structures.
3. Native American Graves Protection and Repatriation Act
In 1990, Congress passed the Native American Graves Protection and
Repatriation Act (NAGPRA), which “describes the rights of Native
American lineal descendants, Indian tribes, and Native Hawaiian
organizations with respect to the treatment, repatriation, and disposition of
Native American human remains, funerary objects, sacred objects, and
objects of cultural patrimony . . . with which they can show a relationship
of lineal descent or cultural affiliation.”94 The NAGPRA has two main
objectives.95 First, it mandates that all federally funded agencies and
museums inventory all Native American skeletal remains and funerary
96
If
objects and “provide written summaries of other cultural items.”
cultural affiliation can be established, then the agencies and museums have
a responsibility to consult a representative of the lineal descendant to
determine the best means for repatriation, reburial, or curation.97 Second,
the NAGPRA strives to more adequately protect burial sites and funerary
objects associated with the sites that are located on federal and tribal
98
land.
C. Survey of State Laws: A Need for Uniformity
Laws governing archaeological resources vary broadly, depending on
the state where the resources are located. In many states, laws that were
enacted to deal with different issues have been stretched to apply to
archaeological concerns, so the laws are not tailored to effectively address
91. See McManamon, supra note 56, at 263.
92. Cullen Murphy, Pay Dirt, ATLANTIC MONTHLY, Mar. 1991, at 26, reprinted
in RICHARD B. CUNNINGHAM, ARCHAEOLOGY, RELICS, AND THE LAW 199 (2d ed.
2005).
93. Gerstenblith, Identity and Cultural Property, supra note 10, at 581.
94. McManamon, supra note 56, at 272 (citing 25 U.S.C. §§ 3001-13 (2000)).
95. Id.
96. Id.
97. Id.
98. Id.
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THOMAS M. COOLEY LAW REVIEW
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99
these concerns. “[C]ourts and legislatures often do not seem capable of
recognizing that a single, unified set of legal rules is needed to provide
protection for such materials even when they are found in widely varying
100
circumstances.”
Like the federal government, most states have statutes that assert some
degree of control over archaeological resources located on state-regulated
101
“Some merely assert title over artifacts, or prohibit excavation;
land.
others assert an exclusive right of excavation, or a delegation of that right
by permit or license; yet others have promulgated comprehensive
102
Other states extend protection to
management programs.”
archaeological sites and artifacts depending on the type of site or
103
artifact.
Specifically, burial sites receive the greatest amount of regulation.104
Awareness of the need for the protection of burial sites was brought to the
political forefront in 1987 with the looting that occurred at Slack Farm in
105
Ten men paid the owner of Slack Farm a total of
western Kentucky.
$10,000 for the right to remove artifacts from his property.106 During
removal, the men disturbed over 1,000 ancient graves.107 Kentucky was
unable to prosecute the men because it lacked legislation prohibiting the
108
The Slack Farm tragedy prompted
desecration of unmarked graves.
thirty-four states to pass laws regarding desecration of unmarked graves.109
Following the NAGPRA’s example, some state statutes distinguish
between burial sites associated with Native Americans and non-native
110
Approximately twenty-four states protect burial sites
burial sites.
located on private and public land.111 In general, if human remains are
99. See Gerstenblith, Identity and Cultural Property, supra note 10, at 586.
100. Id.
101. CUNNINGHAM, supra note 63, at 237.
102. Id.
103. D’Innocenzo, supra note 5, at 142-45; see also Gerstenblith, Identity and
Cultural Property, supra note 10, at 630-31.
104. Patty Gerstenblith, Protection of Cultural Heritage Found on Private Land:
The Paradigm of the Miami Circle and Regulatory Takings Doctrine After Lucas,
13 ST. THOMAS L. REV. 65, 101 (2000) [hereinafter Gerstenblith, Protection of
Cultural Heritage].
105. Callahan, supra note 73, at 1329.
106. Id.
107. Id.
108. Id. at 1329-30.
109. Id. at 1330.
110. Gerstenblith, Identity and Cultural Property, supra note 10, at 630-31.
111. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 102.
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discovered, the statutes require that activity stop until a coroner can
112
As long as there is no indication of criminal
examine the remains.
activity, state archaeologists have a limited time to investigate the site and
113
remove the remains.
Virtually all states now have statutes that provide some regulation
regarding the disturbance of burial sites during archaeological
114
For example, Indiana requires a plan approved by the
investigation.
State Division of Historical and Archaeological Preservation when
115
Investigation
archaeological investigation will affect burial sites.
without a plan or failure to conform to the terms of the plan can be
116
Rather than
punished by up to eighteen months in jail or a $10,000 fine.
requiring an approved plan, Washington requires a permit issued by the
SHPO when human remains will be disturbed.117 Violators can be subject
to five years in jail and a $10,000 fine.118
Another category of archaeological resources that receives specific
protection is rock art. For example, Washington punishes the desecration
of rock art located on private or public land the same as the desecration of a
grave: “Knowing desecration of a grave or rock art, or the sale of burial
material or human remains, qualifies as a Class C felony, punishable by up
to five years in jail, a ten thousand dollar fine, or both.”119 On the other
hand, Oklahoma protects rock art found on state-owned land but only
discourages the removal or excavation of rock art found on privately
120
owned land.
With the exception of rock-art protection in some states, in general,
“[w]hen human remains are not involved in an excavation . . . federal and
121
Guidelines for issuing
state protections become sketchy at best.”
permits vary among states.122 Some states require a permit issued by an
SHPO before excavation can begin on public or private land.123 Other
112. Id.
113. Id.
114. D’Innocenzo, supra note 5, at 143.
115. Callahan, supra note 73, at 1330.
116. Id.
117. Id. at 1330-31.
118. Id. at 1331.
119. Id. (citing WASH. REV. CODE § 27.44.040 (1989))
120. D’Innocenzo, supra note 5, at 143-44 (citing OKLA. STAT. tit. 53, § 361
(1985)).
121. Id. at 143.
122. Callahan, supra note 73, at 1326.
123. D’Innocenzo, supra note 5, at 145; see also Callahan, supra note 73, at
1326.
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THOMAS M. COOLEY LAW REVIEW
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states allow an SHPO to designate some archaeological sites as
archaeological landmarks, which means the sites cannot be excavated
124
However, if the sites are located on private land, the
without a permit.
landowner must consent to the designation.125
For example, New Mexico requires permits for excavation on privately
owned land unless the landowner wants to excavate his or her own
126
New Mexico also requires
property, in which case no permit is required.
that archaeological investigations occurring on public land be reserved to
127
Similarly, Alabama law permits archaeological
the state only.
excavation within the state to be conducted by state agents or employees
128
A violation of this law is a misdemeanor subject to a $1,000
only.
129
fine.
West Virginia, on the other hand, only requires a permit for sites
“of historical significance.”130 Violation of this permit requirement is a
misdemeanor.131 Any site that is not of historical significance does not
require a permit.132 The West Virginia statute could be problematic for
prosecution because it does not provide guidelines for determining a site’s
133
In addition, it is often difficult to prove that the
historical significance.
site was significant before it was looted.134
Other states have established voluntary programs to protect
archaeological resources, such as developing registries for significant
archaeological sites and encouraging grants of conservation easements by
135
However, because these programs
landowners for archaeological sites.
require consent, if the landowner does not wish to protect the
136
archaeological resources, then the sites will not be protected.
Additionally, depending on the factors for determining significance,
registries, like the NHPA, can be ineffective for protecting archaeological
124.
125.
126.
127.
128.
129.
130.
131.
132.
133.
134.
135.
136.
D’Innocenzo, supra note 5, at 146.
Id.
Id.
Id.
Callahan, supra note 73, at 1327.
ALA. CODE § 41-3-6 (2010).
Callahan, supra note 73, at 1327.
W. VA. CODE § 29-1-8a(c)(1) (2010).
Callahan, supra note 73, at 1328.
Id.
See id.
Gerstenblith, Protection of Cultural Heritage, supra note 104, at 106.
See id.
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PROTECTING OUR PAST
369
137
However, Kentucky has
sites located on privately owned land.
developed a fairly successful registry program, the Kentucky Heritage
138
The KHC seeks to protect sites on private property
Council (KHC).
“without putting legal restraints on the landowners’ use of their property or
139
The KHC contacts landowners who may wish to
burdening their titles.”
140
add a site to the registry.
However, landowners are skeptical of granting
easements in exchange for tax benefits because their property rights will be
restricted.141
Only one state extends ownership over all archaeological resources.142
In 1906, Alabama enacted the Alabama Antiquities Act (AAA):
The State of Alabama reserves to itself the exclusive right
and privilege of exploring, excavating or surveying,
through its authorized officers, agents or employees, all
aboriginal mounds and other antiquities, earthworks,
ancient or historical forts and burial sites within the State
of Alabama, subject to the rights of the owner of the land
upon which such antiquities are situated, for agricultural,
domestic or industrial purposes, and the ownership of the
state is hereby expressly declared in any and all objects
whatsoever which may be found or located therein.143
Although the AAA has never been subject to a constitutional challenge,
it is uncertain whether it would pass muster because it uses very broad
language to define the materials it covers.144 Still, under the AAA,
Alabama’s rights are “subject to the rights of the owner of the land.”145
While this provision might protect the AAA from constitutional attacks, as
one commentator notes, the statute “loses most of its teeth” because it
“cannot be read as completely asserting state ownership of, or control over,
146
the site.”
137. Cf. Callahan, supra note 73, at 1342 (arguing that the NHPA is not very
effective because, in part, it only protects properties that meet its significance
criteria).
138. Id. at 1344.
139. See id. at 1343-44.
140. Id. at 1344.
141. See id.
142. See id. at 1338.
143. ALA. CODE § 41-3-1 (2010).
144. See Callahan, supra note 73, at 1338; Walsh, supra note 87, at 530 (arguing
that the AAA violates the Due Process Clause because it is vague and overbroad).
145. § 41-3-1.
146. Callahan, supra note 73, at 1338, 1339.
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Overall, states have had little success when attempting to regulate
archaeological resources located on privately owned land unless human
remains are involved. But there must be consistency for all types of
archaeological resources. One commentator notes the danger in treating
burial sites differently than other archaeological sites:
Separating grave desecration from general archaeological
crimes creates several problems. First, there are many
archaeological sites that are not burials, and the public may
think these are open for looting. Second, proof in cultural
resource criminal investigations becomes even more
onerous when the accused must be linked to a particular
burial site. Third, proving intent is often difficult because
looters can easily claim that they did not intend to
desecrate and that they were only digging for artifacts.147
The commentator attributes the difference in treatment to societal
148
values outside the scientific community.
Because grave desecration
offends society so deeply, burial sites warrant heightened protection.149
However, a survey conducted for several archaeological and conservancy
organizations suggested a positive public attitude regarding regulation of
150
Ninety-six percent of respondents believed that
all archaeological sites.
laws protecting historic and prehistoric archaeological sites were
151
Of the 96%, two-thirds thought that the laws should prohibit
necessary.
the general public from removing projectile points and pottery from their
152
“About the same number (69%) thought that laws should
own property.
prevent the general public from selling artifacts found on their property
153
Eighty-two percent agreed that the general public should be
. . . .”
prohibited from selling artifacts found on someone else’s land.154 These
statistics suggest that the public would be equally accepting of laws
regulating all archaeological sites. If society does, in fact, wish to punish
147. Id. at 1331-32.
148. Id. at 1332.
149. Id.
150. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 107
(“[P]rotection [should] extend[] uniformly to archaeological sites including burials,
habitation sites and other remains of past life located on private land. . . . [T]his is
an appropriate time to move forward because public opinion is increasingly aware
of the need to preserve the cultural past.”).
151. Id.
152. Id.
153. Id.
154. Id.
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PROTECTING OUR PAST
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grave desecration more stringently, heightened punishment for grave
desecration could reflect those interests, while still extending protection to
all sites.
In addition, uniformity of archaeological-resource regulation is needed
throughout the country. Lack of uniformity hinders preservation efforts.155
The abundance of complex state and federal regulations contributes to the
public’s lack of awareness regarding laws governing archaeological
156
In the survey mentioned above, only 24% of respondents
resources.
knew of the laws regarding unmarked human burial sites, only 23% knew
of the laws governing buying and selling artifacts, and only 28% knew of
157
Although the federal
the laws protecting archaeological sites.
government promoted uniformity in environmental and historic protection
in state regulation with funding incentives in the 1970s, legislation for
archaeological protection never received the same push for uniformity.158
Consequently, “protective legislation has been splintered between federal
and state authorities,” making enforcement difficult and wasting
resources.159
III. AN UMBRELLA STATUTE THAT INCLUDES
MEANS FOR CERTIFICATION
Relative to the international community, the United States is less
progressive than most countries regarding the protection of archaeological
160
Because legislation attempting to protect archaeological
resources.
resources was not in place until the Antiquities Act of 1906, the United
States was slower to extend protection to any archaeological resources,
161
But there has not been a strong
much less all archaeological resources.
international push for preservation because the United States is not
considered a prominent source nation or a developing country, despite its
162
Undoubtedly, developing countries are
rich archaeological history.
deserving of attention; however, the destruction of archaeological resources
163
is not just an affliction of impoverished countries.
155. See Gerstenblith, Identity and Cultural Property, supra note 10, at 586.
156. Id. at 565.
157. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 107-08.
158. Gerstenblith, Identity and Cultural Property, supra note 10, at 586.
159. Id.
160. D’Innocenzo, supra note 5, at 132; see Cohan, supra note 16, at 51-55.
161. D’Innocenzo, supra note 5, at 132.
162. See Cohan, supra note 16, at 11; D’Innocenzo, supra note 5, at 133.
163. Gerstenblith, Controlling the International Market in Antiquities, supra
note 17, at 169.
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THOMAS M. COOLEY LAW REVIEW
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While the consumption of international archaeological resources
thrives in the United States, the demand for Native American artifacts is
also heavily present at home (as well as internationally), resulting in the
164
It is estimated that
destruction of our fragile archaeological record.
looters have ransacked 80% to 90% of all archaeological sites in the
Southwest.165 While looting does not always result in complete destruction
of a site, it often does.166 In the past few years, Anasazi ruins located on
private property have been completely destroyed by looters.167 Artifacts
recovered have produced over $1 million from sales to museums, galleries,
and private collectors, who do not generally inquire about sellers’
168
acquisitions.
Similarly, only 200 out of an estimated 20,000 Native American burial
mounds survive today in the Ohio and Mississippi River valleys.169 From
these sites, a single pre-Columbian basket could generate up to
170
And because most mounds are located on privately owned
$150,000.
land, they remain virtually unprotected.171
Archaeology is invaluable to American society because it provides a
vehicle to reconstruct the past; details of past civilizations’ “diet,
technology, trade, living patterns, religion, [and] literature” all lie in the
172
However, all of this information relies on the
archaeological record.
context in which the artifacts are found.173 Subtle distinctions in soil are
invaluable to an archaeologist.174 Understanding a site’s stratigraphy is
164 Stephanie Ann Ades, The Archaeological Resources Protection Act: A New
Application in the Private Property Context, 44 CATH. U. L. REV. 599, 599-600
(1995).
165. Goodwin, supra note 15, at 198; Ades, supra note 164, at 600.
166. Cohan, supra note 16, at 8, 55; see also Callahan, supra note 73, at 1324.
167. Anasazi Heritage Center: Who Were the Anasazi?, U.S. DEP’T OF THE
INTERIOR, BUREAU OF LAND MGMT., http://www.blm.gov/co/st/en/fo/ahc/
who_were_the_anasazi.html#who (last visited Jan. 18, 2011) (referring to the
Anasazi as a cultural group that existed in the southwest United States as early as
1500 B.C.: “They were the ancestors of the modern Pueblo people.”); Mark Michel,
The Archaeological Conservancy and Site Protection, NAT’L PARK SERVICE,
http://www.nps.gov/history/seac/protecting/html/5j-michel.htm (last visited Jan. 18,
2011).
168. Goodwin, supra note 15, at 198.
169. Michel, supra note 167.
170. Goodwin, supra note 15, at 197.
171. Michel, supra note 167.
172. Gerstenblith, Identity and Cultural Property, supra note 10, at 564.
173. Id.; see also Gerstenblith, The Public Interest, supra note 24, at 198-99.
174. See Gerstenblith, The Public Interest, supra note 24, at 198-99.
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373
one of the archaeologist’s greatest insights, especially when establishing
175
In addition, to fully appreciate the value of artifacts, it is
chronology.
critical that they be excavated and studied in relation to the architectural
176
While the need for archaeologicalfeatures associated with them.
resource protection may appear to be like the protection of artifacts, the
177
Without cultural and
ultimate goal is the preservation of context.
scientific education regarding the artifacts, they are essentially alluring
trinkets from the past.
After dealing with thefts associated with monuments in Guatemala and
Mexico, Clemency Coggins, archaeology and art professor at Boston
University, reflected:
Unlike many natural resources, our archaeological
resources are not renewable. Once a site has been worked
over by looters in order to remove a few salable objects,
the fragile fabric of its history is largely destroyed.
Changes in soil color, the traces of ancient floors and fires,
the imprint of vanished textiles and foodstuffs, the relation
between one object and another, and the position of a
skeleton—all of these sources of fugitive information are
ignored and obliterated by archaeological looters. . . . The
collector buys a beautiful object of which he knows
virtually nothing, and no one ever mentions to him the
devastation that was created in order to deliver it.178
Like the sites in Guatemala and Mexico, sites in the United States are
experiencing devastating destruction. Because archaeological sites are
irreplaceable, the United States must take immediate steps to protect those
that are left. Like many nations that have adopted umbrella statutes, the
United States must enact legislation that vests ownership of all
archaeological resources in the government, regardless of whether the
175. See id. at 199. For a definition of stratigraphy, see Stratigraphy,
ABOUT.COM,
http://archaeology.about.com/od/sterms/g/stratigraphy.htm
(last
visited Jan. 18, 2011) (“Stratigraphy refers to geological and archaeological layers
that make up an archaeological deposit. Archaeologists use stratigraphy to better
understand the processes that created the site. . . . [S]oils found deeply buried will
have been laid down earlier—and thence be older—than the soils found on top of
them.”)
176. See Gerstenblith, The Public Interest, supra note 24, at 199.
177. See Gerstenblith, Identity and Cultural Property, supra note 10, at 564.
178. CUNO, supra note 20, at 28 (quoting Clemency Coggins, Archeology and
the Art Market, SCIENCE, Jan. 21, 1972, at 263).
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THOMAS M. COOLEY LAW REVIEW
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179
Under
archaeological resources are found on public or private property.
an umbrella statute, removal or disturbance of archaeological resources
180
In addition, the
without government permission would constitute theft.
umbrella statute needs to provide a system for certifying archaeological
181
resources that were obtained before the statute became effective.
An umbrella statute would enable the government to proactively, rather
182
The goal of the statute
than reactively, protect archaeological resources.
would be to equally protect archaeological sites located on private and
183
While it may seem that an umbrella statute’s primary
public land.
concern would be to regulate possession of artifacts, the underlying
objective should be to protect the archaeological record in which the
184
artifacts are found because it can never be recreated after it is destroyed.
While ownership vested in the government implies control, ownership
under an umbrella statute should not grant exclusive rights to the
179. Cohan, supra note 16, at 51-52, 54; D’Innocenzo, supra note 5, at 154
(noting that Alabama’s Antiquities Act containing an umbrella statute is “[p]erhaps
the easiest and most practical approach to private archaeological site preservation”);
see also Gerstenblith, The Public Interest, supra note 24, at 213 (“It is clear today
that such laws are used as one of the most effective methods to reduce incentives to
purchase undocumented antiquities and thus to prevent the looting of archaeological
sites.”); cf. Gerstenblith, Identity and Cultural Property, supra note 10, at 642
(proposing a “model statute for the uniform protection and treatment of cultural
resources” that advocates group ownership of cultural property). But see CUNO,
supra note 20, at 127 (arguing that cultural property laws have existed in many
countries for some time, yet looting continues, so these laws are ineffective for
protecting resources).
180. Gerstenblith, The Public Interest, supra note 24, at 212.
181. See Cohan, supra note 16, at 52-53; cf. Gerstenblith, Controlling the
International Market in Antiquities, supra note 17, at 184 (noting that to manage
the market for antiquities, legitimate artifacts need documentation that proves that
they were properly acquired to distinguish them from newly looted objects that have
been placed illegitimately into the market).
182. See Gerstenblith, Identity and Cultural Property, supra note 10, at 641
(noting that because of the lack of uniformity in U.S. law, protection is usually
“haphazard and reactive”).
183. Compare D’Innocenzo, supra note 5, at 133 (noting that the lack of
protection of cultural artifacts on private lands is a large shortcoming), with
Gerstenblith, Identity and Cultural Property, supra note 10, at 641 (arguing for the
need of a statute that protects archaeological resources “regardless of the
circumstances and location of their discovery”).
184. Gerstenblith, Identity and Cultural Property, supra note 10, at 564.
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185
Rather, the government should act as a steward, preserving
government.
archaeological resources for the benefit of all.186 The government would
act as the best guardian of our cultural resources because it is the primary
source of legitimate authority with enforcement power in the country.187
Because archaeological resources strongly relate to “group cultural
188
However, there is one
identity,” group rights should be recognized.
disadvantage of promoting the notion that archaeological resources belong
to everyone: some misconstrue the concept of group ownership to justify
wide-scale looting.189 In addition, some argue that if archaeological
resources belong to all humanity, then nations would be denied
190
These arguments are misapplications of the principle
restitution.
because group ownership imposes a duty to preserve archaeological
resources for future generations and to make the information accessible to
191
everyone equally.
The government’s role as a guardian of archaeological resources is
supported by the public-trust doctrine.192 “The public trust doctrine
‘provides that a state holds public trust lands, waters and living resources in
trust for the benefit of its citizens, establishing the right of the public to
185. See D’Innocenzo, supra note 5, at 140; cf. CUNO, supra note 20, at 85
(questioning whether ownership means exclusive rights or “stewardship”).
186. See D’Innocenzo, supra note 5, at 140; World Heritage: UNESCO Culture,
U.N. EDUC., SCI. & CULTURAL ORG., http://www.unesco.org (follow “Culture”
hyperlink; then follow “World Heritage” hyperlink under “Themes”) (last visited
Jan. 18, 2011) (promoting the idea that “natural and cultural wealth [] belongs to all
of humanity”). But see CUNO, supra note 20, at 85 (questioning how cultural
resources can belong to all of us if they belong to the state).
187. Gerstenblith, The Public Interest, supra note 24, at 211.
188. Gerstenblith, Identity and Cultural Property, supra note 10, at 570 (quoting
Rosemary J. Coombe, The Properties of Culture and the Politics of Possessing
Identity: Native Claims in the Cultural Appropriation Controversy, 6 CAN. J.L. &
JURIS. 249, 262 (1993)).
189. Gerstenblith, The Public Interest, supra note 24, at 200.
190. See id.
191. Cf. Gerstenblith, Identity and Cultural Property, supra note 10, at 648-50
(“[T]he public trust doctrine serves as the most effective tool for enforcing public
duties to preserve natural resources and thus to protect the environment for the
benefit of the public.”).
192. See id. at 651 (“[T]he public trust doctrine provides the basis for a state’s
authority to legislate protection of these resources.”); Nicole B. Wilkes, Public
Responsibilities of Private Owners of Cultural Property: Toward a National Art
Preservation Statute, 24 COLUM.-VLA J.L. & ARTS 177, 195 (2001).
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THOMAS M. COOLEY LAW REVIEW
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193
The publicfully enjoy them for a variety of public uses and purposes.’”
trust doctrine was first applied to specific natural resources.194 As
Americans grew increasingly aware and appreciative of, “first, scenic
beauty, and then later, the broader environment,” the doctrine was
expanded to protect more environmental resources.195 Under the doctrine,
land subject to the public trust may be sold to an individual, but the land
196
This imposes a duty on the
“remains impressed with the public trust.”
individual to act as a trustee and to maintain the land so that it can be
197
A similar approach could be used for
enjoyed by future generations.
archeological resources: a state statute could permit individual ownership
but impose a duty to comply with the public interest.
For an umbrella statute to be successful, drafters will have to anticipate
attacks. For example, it must provide a clear, concise definition of
archaeological resources to avoid violating the Due Process Clause of the
U.S. Constitution. As noted above, the Ninth Circuit invalidated the
Antiquities Act of 1906 because the definition of the materials covered
under the Act was unconstitutionally vague.198 Specifically, the court
reasoned that the terms object of antiquity, ruin, and monument were too
199
As a result,
broad to articulate what was protected under the Act.
“[m]uch attention was given to development of the definition of
200
‘archaeological resource’ in the statute and regulations.”
The umbrella statute should adopt the same definition for
archaeological resources as the ARPA, which defines archaeological
resources as
any material remains of past human life or activities which
are of archaeological interest, as determined under uniform
regulations promulgated pursuant to this chapter. Such
regulations containing such determination shall include,
193. Wilkes, supra note 192, at 195 (quoting David L. Callies, Custom and
Public Trust: Background Principles of State Property Law?, in INVERSE
CONDEMNATION AND RELATED GOV’T AUTH. 699, 732 (1999), available at SE18
ALI-ABA 699.
194. Gerstenblith, Identity and Cultural Property, supra note 10, at 647-48, 651.
195. See id. at 651.
196. Id. at 648.
197. See Hope M. Babcock, Should Lucas v. South Carolina Coastal Council
Protect Where the Wild Things Are? Of Beavers, Bob-O-Links, and Other Things
That Go Bump in the Night, 85 IOWA L. REV. 849, 893 (2000).
198. United States v. Diaz, 499 F.2d 113, 114-15 (9th Cir. 1974); accord
McManamon, supra note 56, at 248.
199. Diaz, 499 F.2d at 114.
200. McManamon, supra note 56, at 248.
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but not be limited to: pottery, basketry, bottles, weapons,
weapon projectiles, tools, structures or portions of
structures, pit houses, rock paintings, rock carvings,
intaglios, graves, human skeletal materials, or any portion
or piece of any of the foregoing items. Nonfossilized and
fossilized paleontological specimens, or any portion or
piece thereof, shall not be considered archaeological
resources, under the regulations under this paragraph,
unless found in archaeological context. No item shall be
treated as an archaeological resource under regulations
under this paragraph unless such item is at least 100 years
of age.201
The ARPA’s definition has withstood constitutional challenges. For
example, in United States v. Austin, the Ninth Circuit rejected the
defendant’s constitutional challenge for vagueness of this definition.202
The court reasoned that the defendant “had fair notice that the conduct that
[he] allegedly engaged in was prohibited.”203 Although the defendant
argued that the terms tools and weapons were ambiguous, the court held
that there was no doubt that the terms applied to the scrapers and
204
arrowheads that the defendant removed.
A. Newly Discovered Artifacts
Because the government would claim ownership of archaeological
resources under an umbrella statute, it would also control their removal.
First, the statute must impose a duty on any individual who discovers
205
archaeological resources to notify the proper governmental authority.
Additionally, the individual must refrain from any further disturbance until
the proper governmental authorities have had a limited amount of time to
206
After an assessment, the government can
investigate the discoveries.
release title to the landowner or take other appropriate measures for
conservation, which would be site specific.207 When determining whether
201. 16 U.S.C. § 470bb(1) (2006).
202. 902 F.2d 743, 745 (9th Cir. 1990).
203. Id. (quoting United States v. Mussry, 726 F.2d 1448, 1454 (9th Cir. 1984)).
204. Id.
205. Gerstenblith, Identity and Cultural Property, supra note 10, at 643;
Gerstenblith, Protection of Cultural Heritage, supra note 104, at 108.
206. Gerstenblith, Identity and Cultural Property, supra note 10, at 643;
Gerstenblith, Protection of Cultural Heritage, supra note 104, at 108.
207. See Gerstenblith, Identity and Cultural Property, supra note 10, at 644-50,
677-84.
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to release title to artifacts, the government should consider whether there is
an abundance of similar artifacts available to the public; if so, the
208
If title is
government’s argument for retention is not as persuasive.
released to a private party, the recipient still has a duty to preserve the
209
Because this would apply to privately owned
archaeological resources.
land, it is complicated by the Takings Clause of the U.S. Constitution,
which will be discussed below.
While many nations’ umbrella statutes preclude all private entities,
including foreign archaeologists, from conducting archaeological
investigation, exclusion is not necessarily imperative for the protection of
archaeological resources. Rather, when private or foreign archaeologists
wish to investigate archaeological sites, the statute should require them to
obtain permits from the government.210 Communication between the
private entity and the government must be maintained so that the
government can determine the proper means for preservation and whether
211
If the private
to release title to recovered artifacts to the private entity.
entity wishes to investigate on privately owned land, the landowner must
212
consent.
B. Certification
An umbrella statute’s success in adequately protecting archaeological
resources also depends on the effective enforcement of a certification
213
Those who possess archaeological resources before the statute
system.
is enacted would retain ownership, but to prove that the artifacts were
acquired before the enactment, they would have to comply with the
214
Once an artifact is certified,
certification standards set out in the statute.
the owner may freely trade or sell it.215
208. See Cohan, supra note 16, at 109 (arguing that a source nation should not be
entitled to repatriation of cultural artifacts if it has a “surplus of objects of a similar
kind” because it would be “hoarding”).
209. See Gerstenblith, Identity and Cultural Property, supra note 10, at 644.
210. See generally Callahan, supra note 73, at 1326-30.
211. See generally id.
212. See generally id. at 1329.
213. See generally Gerstenblith, Controlling the International Market in
Antiquities, supra note 17, at 174 (describing documentation as part of a strategy to
decrease looting); Gerstenblith, Identity and Cultural Property, supra note 10, at
682-83 (proposing a “model for the uniform protection and treatment of cultural
property” that includes a provision for certification).
214. See Gerstenblith, Identity and Cultural Property, supra note 10, at 668.
215. Id.
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The purpose of an umbrella statute should not be to eliminate the
216
Accordingly, for newly discovered
market for archaeological resources.
artifacts, the government could release them to individuals or allow
individuals to purchase them after the artifacts have been properly certified.
And the government should retain possession of unique artifacts so that
they would be accessible to the public; it is infeasible to wipe out the
217
In fact, by encouraging the legitimate trade of
market completely.
archaeological resources, the government may help reduce black-market
218
One commentator argues that encouraging trade on the
trading.
legitimate market “will also increase the value of the legally transferred
antiquities because objects with established provenance customarily carry
219
greater market value than similar items with dubious credentials.”
Internationally, many hoped that umbrella and other retention statutes
would deter sales on the black market, but approximately 85% to 90% of
antiquities for sale in auction-house catalogs lack information regarding
220
And it is likely that many of these antiquities were obtained
provenance.
from countries that asserted their ownership through an umbrella statute.
Therefore, the statute must criminalize possession of undocumented
archaeological artifacts to encourage museums, dealers, auction houses,
and private collectors to require documentation before purchasing an
221
artifact.
In addition, the government should promote trade of archaeological
resources through a legitimate market to avoid focusing on national
222
Striving for absolute national
retention and to avoid hoarding artifacts.
retention of archaeological resources conflicts with the idea that
archaeological resources belong to humankind, rather than to a single
223
Countries that seek to retain all cultural antiquities under
nation.
umbrella statutes and restrictive export regulations are often criticized for
adversely affecting cultural understanding and tolerance and, instead,
224
One commentator argues, “Emphasis in
promoting separateness.
nationalism is on separateness: one nation separate from other nations.
216. See id. at 655.
217. See generally Gerstenblith, Identity and Cultural Property, supra note 10,
at 655.
218. Cohan, supra note 16, at 58.
219. Id.
220. Id. at 11.
221. See id.
222. Id. at 56; D’Innocenzo, supra note 5, at 140.
223. D’Innocenzo, supra note 5, at 140 (arguing that protection of archaeological
resources regardless of location is warranted because they are world treasures).
224. See CUNO, supra note 20, at 123-25.
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Emphasis in cosmopolitanism is on commonality: we are all branches of a
single family, to whom we are obliged equally. Nationalism narrows its
225
vision of the world. Cosmopolitanism expands it.”
Often, when countries seek national retention of archaeological
226
When nations acquire multiple
resources, artifact hoarding results.
similar artifacts, the duplicates are often kept in storage, which prevents
227
Even more problematic is that
them from being enjoyed by anyone.
warehoused artifacts are often improperly cared for and maintained because
228
In addition, many times artifacts
the source nation lacks the resources.
are housed without ever being studied.229 So hoarding does not promote
archaeological-resource protection; rather, it fuels the black market
because, while the demand for antiquities is present, the supply is
restricted. Therefore, individuals are willing to pay more on the black
230
market.
C. Duties Imposed on the Government
As stewards of archaeological resources, the government must, at the
very least, properly maintain the preservation of archaeological resources.
Often, developing countries rich with cultural resources lack adequate
231
“In Peru, for example, the
facilities to conserve and secure them.
ceilings of museum storage rooms in Lima are literally collapsing on
232
national collections of priceless pottery.”
Maintaining archaeological resources requires more than functioning
facilities. The government would also be responsible for properly labeling
233
One commentator
and cataloging curated archaeological resources.
suggested that repatriation of Egyptian cultural antiquities may be
unjustified because of Egypt’s treatment of the cultural antiquities that it
234
“On a recent visit to the Cairo Museum, it seemed
already possesses.
apparent that the 100-year-old building was too small to house the
extremely large collection of Egyptian antiquities, many of which are in a
225.
226.
227.
228.
229.
230.
231.
232.
233.
234.
Id. at 124.
Cohan, supra note 16, at 56.
Id.
Id.
Id.
Id. at 56-58.
Id. at 108.
Id.
See CUNO, supra note 20, at 128.
Cohan, supra note 16, at 108.
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state of near dilapidation, obscured by dirt, haphazardly curated, with many
235
items not even labeled.”
The government has a duty to make archaeological resources and
education accessible to both the scientific community and the public. It is
imperative that details of archaeological investigation are recorded and
236
For
published in accordance with professional archaeological standards.
example, the archaeological community heavily criticizes Italy for its
unprofessionalism:
[B]y any measure, Italy’s museums are engorged with
antiquities and their storerooms have long been filled to
capacity with antiquities waiting to be catalogued, studied,
and published. The promise is always that they will be
published and thereby shared with the world. But Italy’s
record when it comes to publishing archaeological finds is
poor (it is not alone in this respect). Finds languish in
museum storerooms never to be published. And when
those few are published, it is hardly done in a manner
accessible to the general public. They almost always
appear in reports prepared by specialists for specialists.
Archaeological reports can never take the place of gallery
presentations of antiquities. Only the object—the actual
antiquity, the thing itself, there on view, ineluctably
ancient, with the aura and facture of age—has the allure to
attract public curiosity. If the Italian government is
concerned about preserving antiquities because they are “a
source of identity and esteem for the modern Italian
nation,” they can only have that effect if they are seen by
Italian nationals. If they remain off view in storerooms for
years or forever, they are mute and invisible and can hardly
be said to exist for the purposes claimed by the Italian
government.237
Public outreach and education should be one of the government’s
238
Studies have suggested that the incidents of “casual or
primary goals.
unknowing destruction and vandalism” decrease substantially when
239
Also, as noted earlier,
effective public-outreach programs are in place.
surveys have indicated that there is a heightened public awareness of the
235.
236.
237.
238.
239.
Id.
CUNO, supra note 20, at 128.
Id.
McManamon, supra note 56, at 268.
Id.
382
THOMAS M. COOLEY LAW REVIEW
240
need for archaeological-resource protection.
education can help fuel increased awareness.
[Vol. 27:2
Public outreach and
IV. WILL AN UMBRELLA STATUTE FIT INTO OUR CONSTITUTIONAL
FRAMEWORK?
The reluctance of the United States to enact an umbrella statute may be
241
American
rooted in the historical values associated with property rights.
property owners value the right to control their property and expect the
government to protect that right.242 One commentator noted, “The origins,
spirit, and structure of [U.S.] constitutionalism have been instrumental in
shaping the country’s cultural heritage laws.”243 The Fifth Amendment of
the U.S. Constitution would have the greatest impact on the government’s
regulation of archaeological sites located on privately owned land.244
Under the Fifth Amendment, no private property shall be taken “for
245
The Fifth Amendment applies
public use, without just compensation.”
to state action through the Fourteenth Amendment.246 Not only does the
Fifth Amendment reiterate the strong tradition of protecting property rights,
but some also view it to be at odds with public-policy arguments for
247
Consequently, many landowners
protecting archaeological resources.
240. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 107.
241. See generally Pamela G. Levinson, Will the Circle Be Unbroken? The
Miami Circle Discovery and Its Significance for Urban Evolution and Protection of
Indigenous Culture, 13 ST. THOMAS L. REV. 283, 310-24 (2000) (discussing the
constitutional basis and historical notions of an individual’s property rights); James
A.R. Nafziger, The Underlying Constitutionalism of the Law Governing
Archaeological and Other Cultural Heritage, 30 WILLAMETTE L. REV. 581, 600-01
(1994) (explaining that a majority of constitutional claims against protecting
archaeological sites revolve around governmental taking without compensation).
242. D’Innocenzo, supra note 5, at 140; see also Levinson, supra note 241, at
311 (“[T]he notion that private property represents the ultimate individual right is
persistent, as derived historically from the writings of John Locke and the days of
the birth of America as a nation.”).
243. Nafziger, supra note 241, at 590.
244. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 80; see
also D’Innocenzo, supra note 5, at 140; Nafziger, supra note 241, at 601; Walsh,
supra note 87, at 539-40.
245. U.S. CONST. amend. V.
246. See Chi. B. & Q.R. Co. v. City of Chicago, 166 U.S. 226, 233 (1897)
(explaining that deprivation of property without just compensation violates the
Fourteenth Amendment).
247. See D’Innocenzo, supra note 5, at 140 (discussing the clash between the
Fifth Amendment and the protection of archaeological sites).
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feel that their right to control their property should prevail over concerns
248
for protection of archaeological resources.
Indeed, a taking occurs when the government deprives a property
owner of title to all or a portion of the property by exercising the power of
249
The U.S. Supreme Court has interpreted public use to
eminent domain.
mean that the taking must provide some benefit to the public.250 The law
becomes more complex when the government regulates private property
rather than exercising its power of eminent domain. The issue is
determining whether government regulation of private property constitutes
a taking, because not all land-use regulations constitute a taking that
251
requires compensation.
The police power granted to the states allows them to enact zoning
regulations.252 Therefore, a state’s police power enables it to designate
historic districts and other important landmarks without raising takings
253
However, in the late 1980s and the 1990s, the Court began to
issues.
expand the doctrine of regulatory takings.254 Under this doctrine, the Fifth
Amendment requires compensation when the government has compelled
transfer of title, and also when the government has regulated the use of
property to such an extent as to “deprive[] the landowner of either a core
255
property right or all economically viable use of the land.”
The seminal case for regulatory takings involving historic landmarks is
256
In 1968, the New
Penn Central Transportation Co. v. City of New York.
York City Landmarks Preservation Commission denied two certification
requests that would have permitted the construction of a fifty-three- to
fifty-five-story office building above Grand Central Terminal, which was a
248. Id.
249. Gerstenblith, Identity and Cultural Property, supra note 10, at 662.
250. See Emily L. Madueno, The Fifth Amendment’s Takings Clause: Public Use
and Private Use; Unfortunately, There Is No Difference, 40 LOY. L.A. L. REV. 809,
811 (2007) (discussing the differences between the U.S. Supreme Court’s actualuse and public-benefit theories).
251. See Gerstenblith, Protection of Cultural Heritage, supra note 104, at 80-81.
252. Zahra S. Karinshak, Relics of the Past—To Whom Do They Belong? The
Effect of an Archaeological Excavation on Property Rights, 46 EMORY L.J. 867,
896 (1997).
253. Id. at 897.
254. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 80.
255. Id. at 81.
256. 438 U.S. 104 (1978); see also Julia H. Miller, A Layperson’s Guide to
Historic Preservation Law: A Survey of Federal, State, and Local Laws Governing
Historic Resource Protection, in 1 NAT’L TRUST FOR HISTORIC PRES. INFO. SERIES
20 (2000), available at SJ053 ALI-ABA 1, 24.
384
THOMAS M. COOLEY LAW REVIEW
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257
The Court held that certification refusal
designated historic landmark.
did not constitute a taking because the restrictions were “substantially
related to the promotion of the general welfare,” and they permitted
258
The owners of the
“reasonable beneficial use of the landmark site.”
Grand Central Terminal were able to “obtain a ‘reasonable return’ on
[their] investment” in the terminal because the regulations did not prevent
the station from functioning as it had for the past sixty-five years—“as a
259
The holding
railroad terminal containing office space and concessions.”
in Penn Central significantly affects archaeological-resource protection
because it affirmed the constitutionality of government restrictions on
260
historic property.
In addition to Penn Central, Lucas v. South Carolina Coastal Council
has helped shape the regulatory-takings doctrine. 261 In Lucas, Lucas
purchased beachfront property intending to build single-family homes on
262
However, after Lucas purchased the property, South Carolina
the lots.
passed the Beachfront Management Act, which prohibited construction on
263
The Court held
the lots to preserve the beaches by preventing erosion.
that a state is required to compensate a landowner if the regulation deprives
264
However,
the landowner of all economically beneficial use of the land.
compensation is unnecessary if the prospective use was not originally
265
intended when the owner acquired title.
The regulatory-takings analysis became more complicated after Lucas
because not all federal and state courts have interpreted Lucas the same,
266
In general, however,
leaving the state of the law somewhat unclear.
courts look to the three factors outlined in Penn Central to determine if a
267
regulatory taking requiring compensation has occurred : (1) the character
257. Penn Central, 438 U.S. at 116-17.
258. Id. at 138.
259. Id. at 136 (noting that the focus should be on the entire property interest and
not just the directly affected portion).
260. Miller, supra note 256, at 19.
261. 505 U.S. 1003 (1992).
262. Id. at 1008.
263. Id. at 1008-09.
264. Id. at 1027.
265. Id.
266. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 82.
267. Id. at 84.
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of the government action; (2) the economic impact of the regulation; and
268
(3) the owner’s investment-backed expectations.
The first prong, the character of the government action, considers the
269
For example, courts consider
level of intrusion onto the owner’s land.
whether the regulation has deprived the landowner of a “core property
270
Courts also
right” or created a permanent physical presence on the land.
consider due-process requirements under this prong.271 This means that the
regulation must “serve[] a legitimate governmental purpose[,] and the
means chosen to achieve that purpose [must] bear a rational or substantial
272
Because archaeological-resource
relationship to that purpose.”
regulation seeks to advance goals similar to those of historic preservation
and environmental protection, regulations should withstand any dueprocess challenge. In Penn Central, the U.S. Supreme Court recognized
that historic preservation is a legitimate government interest because
273
preservation enhances the quality of life.
The second prong of Penn Central focuses on the economic impact of
the regulation, determining whether the landowner has been deprived of all
274
This factor would have the greatest
economically viable use of the land.
impact on archaeological preservation because often the regulation would
prohibit the disturbance of the portion of property where the site is
268. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 123-25 (1978);
accord Gerstenblith, Protection of Cultural Heritage, supra note 104, at 84-87;
Miller, supra note 256, at 25-27.
269. Penn Central, 438 U.S. at 124; accord Gerstenblith, Protection of Cultural
Heritage, supra note 104, at 84.
270. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 84; see
also, e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441
(1982) (holding that a taking had occurred when the city permitted a cable company
to install cable wires on the plaintiff’s apartment building); United States v. Causby,
328 U.S. 256, 261 (1946) (considering the frequency of flights by federal
government airplanes over private land to determine whether the owner was
deprived of use and enjoyment of the land).
271. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 82; see
also Miller, supra note 256, at 28-29.
272. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 82.
273. Penn Central, 438 U.S. at 108.
274. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 88; Miller,
supra note 256, at 25, 27; see also, e.g., Lucas v. S.C. Coastal Council, 505 U.S.
1003, 1027 (1992) (holding that the Beachfront Management Act, which prohibited
the landowner from constructing residential houses, had deprived the land owner of
all economically viable use of the property).
386
THOMAS M. COOLEY LAW REVIEW
[Vol. 27:2
275
Courts have demonstrated some uncertainty when trying to
located.
define what constitutes total deprivation of viable use.276 At the very least,
courts consider the total amount of property relative to the portion of which
the owner has been deprived.277
The third prong of Penn Central looks at the reasonable investmentbacked expectation of the owner and considers whether the regulation
prohibits an owner from doing something with the property at the time of
278
A relevant consideration includes the owner’s reason for
acquiring title.
investing in the property.279 Although this is a subjective inquiry, the
expectation must be objectively reasonable.280
In addition to takings through eminent domain and regulation, the
government must also compensate landowners for temporary intrusions
onto private property.281 Because the umbrella statute would require
notification and a reasonable opportunity to investigate when
archaeological resources are discovered, temporary-takings issues would
arise. Therefore, the umbrella statute would have to provide a scheme in
which compensation would be paid to the landowner while the government
agency has an opportunity to evaluate the significance of the archaeological
275. See Gerstenblith, Protection of Cultural Heritage, supra note 104, at 81
n.72; Miller, supra note 256, at 26.
276. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 88, 89.
277. Id.
278. Id. at 86; see Penn Central, 438 U.S. at 136 (holding that the historicpreservation designation did not interfere with the property owner’s investmentbacked expectation because the property owner could continue using the property
as it had been used for the past sixty-five years); Miller, supra note 256, at 27.
279. See Miller, supra note 256, at 27.
280. See id.
281. See Gerstenblith, Protection of Cultural Heritage, supra note 104, at 92;
Norbert Lee Bartochowski, Takings, Archaeological Sites, and Artifacts, 8 ALB. L.
ENVTL. OUTLOOK J. 134, 166 (2002); cf. Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg’l Planning Agency, 535 U.S. 302, 330-31 (2002) (holding that determining
whether a temporary regulatory taking was effected is best determined by using an
ad hoc analysis under the Penn Central framework).
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282
However, intrusion by a government agency onto private land is far
site.
less troublesome than permitting intrusion by the general public.283
Because the umbrella statute would apply to both archaeological sites
and artifacts, the regulation of artifacts as personal property might also
implicate Fifth Amendment issues. Otherwise, in the absence of an
umbrella statute, the common law of finders would generally govern
ownership rights of newly discovered archaeological resources.284 The law
of finders categorizes property as either lost, mislaid, abandoned, or
embedded, with the underlying policy of returning the property to the true
285
Given the nature and age of archaeological resources, they are
owner.
usually categorized as abandoned or embedded.286 The finder of
abandoned property acquires title with no superior claim because the
original owner relinquished rights to the property.287 However, when
property is embedded, the owner of the land where it is embedded has
288
Because the law of finders is a deeply rooted
constructive possession.
American tradition, many might consider the government’s assertion of
control over found property a taking.289
One of the few cases that addresses preservation, personal property,
290
In Andrus, the defendants
and the Fifth Amendment is Andrus v. Allard.
were prosecuted under the Eagle Protection Act.291 The Eagle Protection
282. See Gerstenblith, Identity and Cultural Property, supra note 10, at 667
(suggesting that compensation be essentially equivalent to rent paid to the
landowner); see also Bartochowski, supra note 281, at 157 (discussing different
types of archaeological data-recovery methods, such as required mitigation plans
and archaeological fields that will implicate different temporary-takings concerns
due to the nature of the archaeological work conducted).
283. Gerstenblith, Identity and Cultural Property, supra note 10, at 667; see
also, e.g., Dolan v. City of Tigard, 512 U.S. 374, 393 (1994) (invalidating the city’s
requirement that the property owner dedicate a portion of her property for a public
greenway in exchange for a building permit because, among other reasons, the
“right to exclude others is ‘one of the most essential sticks in the bundle of rights
that are commonly characterized as property’”).
284. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 99.
285. Gerstenblith, Identity and Cultural Property, supra note 10, at 587-88.
286. Gerstenblith, Protection of Cultural Heritage, supra note 104, at 99.
287. Gerstenblith, Identity and Cultural Property, supra note 10, at 590.
288. Id. at 591. But see id. at 590. The categories of abandoned and
embedded—as well as lost and mislaid—do not apply when the property found is
gold or silver. Id. Gold and silver are considered treasure trove, and different rules
apply. Id.
289. See Goodwin, supra note 15, at 198.
290. 444 U.S. 51 (1979); Nafziger, supra note 241, at 603.
291. 16 U.S.C. §§ 668(a)-668(d) (2000); Andrus, 444 U.S. at 54.
388
THOMAS M. COOLEY LAW REVIEW
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Act prohibits possessing, transporting without a permit, importing,
exporting, selling, trading, or bartering of eagles or any part of them;
however, under the Act, it is not illegal to possess or transport these
292
The
objects if they were obtained legally before June 8, 1940.
defendants, who traded Native American artifacts, violated the Act when
they sold artifacts that contained feathers from the protected birds, even
though the artifacts were preexisting.293 The U.S. Supreme Court rejected
the argument that the regulation constituted a taking because it deprived the
294
The Court
defendants of an economically viable use of the property.
noted that the defendants were allowed to keep the artifacts without any
295
Instead, the Court identified the
physical invasion or restraint on them.
restriction as a restriction on disposing of the artifacts.296 The Court also
pointed out that the “denial of one traditional property right does not
297
always amount to a taking.”
Like the Eagle Protection Act, the umbrella statute would most likely
withstand any personal-property-takings challenges because it would not
require individuals to relinquish possession of archaeological resources
298
In addition, trade
already in their possession before the enactment.
would not be completely prohibited as long as the artifacts are certified.299
According to Justice Antonin Scalia in Lucas, personal property receives
less protection from overly intrusive regulation than real property: “And in
the case of personal property, by reason of the State’s traditionally high
degree of control over commercial deals, [a person] ought to be aware of
the possibility that new regulation might even render his property
300
Accordingly, personal-property owners
economically worthless . . . .”
must be more tolerant of regulation regarding personal property than with
real property. Therefore, the portion of the umbrella statute regulating
292. 16 U.S.C. § 668(a); Andrus, 444 U.S. at 54.
293. Andrus, 444 U.S. at 54.
294. Id. at 64; see also id. at 62 (comparing the Eagle Protection Act to other
conservation acts that prohibit the sale of endangered species or parts of endangered
species, such as the Endangered Species Act of 1973 and the Marine Mammal
Protection Act of 1972).
295. Id. at 65.
296. Id.
297. Id.
298. Gerstenblith, Identity and Cultural Property, supra note 10, at 668.
299. Id.
300. Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1027-28 (1992); accord
Gerstenblith, Identity and Cultural Property, supra note 10, at 669.
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artifacts would most likely not constitute a taking under the Fifth
301
Amendment because artifacts are personal property.
Despite a strong American tradition that favors protecting the rights of
private-property owners, it is probable that an umbrella statute would fit
into the U.S. constitutional framework.
In most circumstances,
302
archaeological artifacts can be excavated and removed from the land.
To comply with the standards of the Fifth Amendment without question,
the government could provide compensation to the landowner while the
excavation occurs and treat it as a temporary taking, because it would be a
physical intrusion on private land (which would also act as an incentive for
landowners to report findings).303
In rarer situations, where an
archaeological site is too significant to be disturbed, the government could
exercise its power of eminent domain and provide compensation to the
landowner.304 Due to the importance of the site, the need for preservation
would serve as a legitimate government interest to justify the exercise of
power.305
Case law concerning takings and archaeological resources seems to
suggest that courts would treat the issue much like they do historicallandmark regulation, and since Penn Central, there have been very few
306
Courts have
takings findings related to historic-preservation regulations.
been unsympathetic toward landowners when dealing with regulations
307
aimed at preservation.
For example, in Hunziker v. Iowa, the Iowa Supreme Court held that no
taking had occurred when a building permit was denied for a residential lot
because a 1,000-year-old Native American burial mound stood on the
301. See Gerstenblith, Identity and Cultural Property, supra note 10, at 669.
302. Bartochowski, supra note 281, at 157.
303. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 470 (1982)
(holding that a taking had occurred when the city permitted a cable company to
install cable wires on the plaintiff’s apartment building); Gerstenblith, Identity and
Cultural Property, supra note 10, at 667. But see Bartochowski, supra note 281, at
157 (suggesting that excavation and removal would not give rise to a taking “unless
the archaeological site so extensively cover[s] the property as to preclude all viable
economic use of the site”).
304. Gerstenblith, Identity and Cultural Property, supra note 10, at 667.
305. Id.
306. Levinson, supra note 241, at 321.
307. See Bartochowski, supra note 281, at 145; see also Miller, supra note 256,
at 26 (noting that courts typically reject property owners’ arguments that their
investment-backed expectations have been unconstitutionally interfered with by the
historic-preservation regulations that were implemented after the properties were
purchased because it is unreasonable to expect freedom from regulation).
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308
The plaintiffs were land developers who had purchased fifty-nine
lot.
acres to divide into residential lots.309 Three years after the purchase, a
state archaeologist learned that a burial mound existed on one of the lots.310
Further investigation revealed human bones.311 State law permitted the
archaeologist to prohibit the disturbance of the burial mound and to require
312
that a buffer zone be placed around the mound during construction.
Because the mound was located in the center of the lot, the city reasoned
313
The plaintiffs argued
that it was infeasible to build a house on the lot.
that because they had been deprived of all the economically beneficial use
314
The court distinguished
of the land, the state owed them compensation.
this case from Lucas because the law prohibiting disinterment existed
before the developers purchased the land; whereas in Lucas, the
conservation regulation was enacted after the landowner purchased the
315
Therefore, the developers in Hunziker never had a right to
property.
disinter the human remains and build over the mound, so no compensation
316
was due.
Similarly, in Thompson v. City of Red Wing, the Minnesota Court of
Appeals held that no taking had occurred when a state statute, which
protected human burial sites, prohibited the landowners from removing
317
The court reasoned that
gravel from a Native American burial mound.
the landowners had not been deprived of all reasonable land use because
they were still permitted to use the land for residential and agricultural
318
purposes, as they had in the past.
Department of Natural Resources v. Indiana Coal Council, Inc.
demonstrates that courts are willing to extend protection beyond burial
mounds.319 In Indiana Coal, a valuable archaeological site, which later
became known as the Beehunter’s Site, was discovered on private land,
308. 519 N.W.2d 367, 368 (Iowa 1994).
309. Id.
310. Id.
311. Id. (stating that the archaeologist found some human bones by probing the
mound).
312. Id.
313. Id.
314. Id. at 370.
315. Id. at 371.
316. Id.
317. 455 N.W.2d 512, 516 (Minn. Ct. App. 1990) (“[The] right to use property
as one wishes is subject to, and limited by, the proper exercise of police power in
the regulation of land use.”).
318. Id.
319. 542 N.E.2d 1000 (Ind. 1989).
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covering 6.57 acres of a 305-acre farm, and was sitting above valuable coal
320
The Beehunter’s Site was extremely significant because just
deposits.
below the plow zone lay an intact midden containing artifacts from four
321
In response to requests by
different cultural-occupation periods.
archaeologists, the Department of Natural Resources designated the 6.57
acres as unsuitable for surface coal mining and devised a mitigation plan
322
The court held that a taking had not occurred.323
for removal of the site.
Most importantly, the court reasoned that the overall economic impact was
324
Furthermore,
slight because only 2% of the entire farm was restricted.
the landowner was only prohibited from using the surface-mining technique
325
The court reasoned
to remove the coal from the protected area of land.
that the landowner’s investment-backed expectation was unaffected
because the land had been originally purchased for farming, not mining.326
The U.S. courts’ tolerance of historical-preservation laws and
unwillingness to deem such regulation as takings suggest that an umbrella
statute would fit into the U.S. constitutional framework. Courts are also
327
The United States
willing to uphold other countries’ umbrella statutes.
cooperates considerably with international efforts to deter and prevent
illegal trafficking of cultural resources, and even allows such efforts to
328
impose on private interests.
If a nation’s government has vested ownership of cultural antiquities
and the antiquities are removed from the nation contrary to export
329
Because the
regulations, then they are considered stolen property.
property is stolen, the nation may seek restitution of the property under the
320. Id. at 1001.
321. Id.;
K. Kris Hirst, What Is a Midden?, ABOUT.COM,
http://archaeology.about.com/od/mterms/g/midden.htm (last visited Jan. 18, 2011).
Archaeologists use the term midden to refer to trash piles. Id. Middens are usually
incredibly significant because they contain broken fragments of objects that were
used in daily life. Id. Well-preserved middens can contain tools, pottery, and even
organic material like food remains, wood, and basketry. Id.
322. Indiana Coal, 542 N.E.2d at 1002.
323. Id.
324. Id. at 1004.
325. Id.
326. Id.
327. See infra text accompanying notes 328-52.
328. Nafziger, supra note 241, at 581 (“This peculiar imbalance of protection
between domestic and international heritage sharply contrasts with the practice of
most states in the international system.”).
329. Gerstenblith, The Public Interest, supra note 24, at 214.
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National Stolen Property Act (NSPA) if the antiquities are discovered in
330
the United States.
United States v. McClain is the landmark case that deals with a foreign
nation’s claim for restitution when the nation has asserted ownership
331
In McClain, the defendants were convicted
through blanket legislation.
under the NSPA for conspiring to transport pre-Columbian artifacts from
332
The artifacts included beads,
Mexico, knowing the artifacts were stolen.
stucco pieces, and terra-cotta figures and pottery.333 On the first appeal,
the U.S. Court of Appeals for the Fifth Circuit determined that ownership
of the property had not vested in Mexico until 1972, despite Mexico’s
334
Because the U.S.
assertion that it vested at least 100 years ago.
government presented no evidence to determine when the artifacts were
acquired in or exported from Mexico, the case was remanded so that the
evidence could be presented to a jury.335 Although a jury convicted the
defendants again on remand, the Fifth Circuit reversed the substantive
convictions but affirmed the convictions for conspiracy on the defendants’
336
The Fifth Circuit reversed the substantive convictions
second appeal.
because the U.S. government was unable to meet its burden of proof for
337
The court
establishing when the artifacts were removed from Mexico.
upheld the conspiracy convictions because there was ample evidence
showing that the defendants had conspired to remove artifacts after
338
1972.
The McClain doctrine is important because it upholds the notion that
ownership in antiquities may vest in a nation even if it has never had
339
However, for U.S. courts to recognize the assertion
possession of them.
330. Id.
331. 545 F.2d 988 (McClain I) (5th Cir. 1977); see Gerstenblith, The Public
Interest, supra note 24, at 214 (noting that this body of law is referred to as the
McClain doctrine).
332. McClain I, 545 F.2d at 992.
333. Id.
334. Id.
335. Id. at 1003.
336. United States v. McClain, 593 F.2d 658 (McClain II) (5th Cir. 1979).
337. Id. at 671; accord Gerstenblith, The Public Interest, supra note 24, at 215
(indicating that the effective date of ownership was 1972, so if the artifacts had
been removed from Mexico before then, they were not stolen because ownership
had not yet vested in Mexico).
338. McClain II, 593 F.2d at 671.
339. McClain I, 545 F.2d at 992 (“This Court, of course, recognizes the
sovereign right of Mexico to declare, by legislative fiat, that it is the owner of its
art, archaeological, or historical national treasures, or of whatever is within its
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of ownership, the statute must be “clear and unequivocal in claiming
340
In addition, the nation must be able to prove
ownership of artifacts.”
that the artifacts were removed from within its borders after the effective
341
date of the law vesting ownership.
The inability to prove when and from where the artifacts were removed
342
For
is the biggest obstacle that nations face in claims for restitution.
example, in Peru v. Johnson, Peru sought to recover eighty-nine Incan
343
The court
artifacts from the defendant, who was a dealer in California.
held that Peru could not meet its burden of proof because it was unable to
produce any direct evidence supporting the assertion that the artifacts were
344
The Inca Empire was not contained within the
removed from Peru.
modern-day borders of Peru; it spanned into modern-day Ecuador and
Bolivia.345 Therefore, Peru could not discern whether the artifacts
originated in Peru, Bolivia, or Ecuador.346 Even though the artifacts were
similar to others found in Peruvian archaeological sites, they were equally
similar to those found in archaeological sites in Bolivia and Ecuador.347
In contrast to the outcome in Johnson, there have been successful
claims asserting national ownership since the McClain case. Guatemala,
Turkey, and Italy have all met the burden of proof under the McClain
348
For example, in United States v. Schultz, the
doctrine, as has Egypt.
jurisdiction; possession is but a frequent incident, not the sine qua non of ownership
. . . .”).
340. McClain II, 593 F.2d at 670-71; see also Cohan, supra note 16, at 66. For
the U.S. umbrella statute to withstand constitutional challenges, it must also clearly
vest government ownership from the effective date. Id.
341. McClain I, 545 F.2d at 1003 (“In order to say whether any of the preColumbian movable artifacts were ‘stolen,’ it is necessary to know first when that
artifact was exported from Mexico.”); see also Gerstenblith, The Public Interest,
supra note 24, at 216-17 (noting that these three factors are collectively referred to
as the McClain doctrine).
342. See CUNO, supra note 20, at 34-35 (“But how is one to know that a Roman
statue came from modern Italy rather than from anywhere else in what was once the
Roman Empire, especially when all that may be known about the statue was that it
was exported from Switzerland to the United States?”); Gerstenblith, The Public
Interest, supra note 24, at 217.
343. 720 F. Supp. 810, 812 (C.D. Cal. 1989), aff’d sub nom., Peru v. Wendt, 933
F.2d 1013 (9th Cir. 1991); Gerstenblith, The Public Interest, supra note 24, at 217.
344. Johnson, 720 F. Supp. at 812.
345. Id.
346. Id.
347. Id.
348. Gerstenblith, The Public Interest, supra note 24, at 217; see also, e.g.,
United States v. An Antique Platter of Gold, 184 F.3d 131,134 (2nd Cir. 1999)
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defendant was convicted of conspiracy to receive stolen property under the
NSPA when he and another coconspirator made arrangements to smuggle
349
The court held that Egyptian law clearly and
valuable Egyptian artifacts.
unambiguously vested ownership in the government of all Egyptian
350
Also, the law
antiquities that were found in Egypt after 1983.
adequately defined antiquities and prescribed a certification procedure for
351
Because the
those who already possessed Egyptian antiquities.
government produced sufficient evidence demonstrating that the antiquities
in question were acquired and smuggled out of Egypt in 1991, the
prosecutor had no difficulty proving that the antiquities were subject to the
1983 Egyptian enactment and, therefore, were owned by the Egyptian
352
government.
Although courts have been willing to apply the McClain doctrine, it is
not without criticism; some argue that the vesting laws are really export
353
In general, export regulations are not enforced by foreign
regulations.
354
countries.
First, critics argue that because vesting laws are
indistinguishable from export controls, they should not be recognized by
355
Second, critics argue that
the United States absent a specific agreement.
the Convention on Cultural Property Implementation Act (CPIA), which
was enacted in 1983, preempts the NSPA.356 However, this is not the case
because the legislative history of the CPIA explicitly states that it does not
357
preempt state law and does not modify any federal or state remedies.
Further, the McClain doctrine and the CPIA require different things, so
358
Lastly, critics argue that the
they are applicable in different contexts.
McClain doctrine violates U.S. public policy.359
This argument
(holding that Italian law vested ownership of the Phiale (Sicilian gold platter) in the
government, so the NSPA applied because it was stolen property); United States v.
Pre-Columbian Artifacts, 845 F. Supp. 544, 547 (N.D. Ill. 1993) (holding that
Guatemalan law vested ownership when artifacts were illegally exported from
Guatemala, so the moment the artifacts illegally left Guatemala they belonged to
Guatemala ).
349. 333 F.3d 393, 395-96 (2d Cir. 2003).
350. Id. at 402.
351. Id.
352. Id. at 396.
353. Gerstenblith, The Public Interest, supra note 24, at 218-19.
354. Id.
355. Id.
356. Id. at 220-21.
357. Id. at 221.
358. Id. at 222.
359. Id. at 225.
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encompasses several issues: free-trade policy; property, possession, and
360
ownership traditions; and takings-clause concerns.
It is in the public-policy argument against the McClain doctrine that the
United States will find the greatest resistance if it implements its own
umbrella statute. As stated in the discussion of the law of finders, property
owners have constructive possession of everything on and below the
361
Therefore, the notion that property owners control
surface of their land.
all valuable resources where they have constructive possession, and benefit
from any exploitation of those resources, is deeply embedded in American
362
When landowners discover oil or gold on their property, they
tradition.
reap the economic rewards. To combat the deeply held notion that what
exists on my land is mine, it is imperative that an umbrella statute provide
economic incentives for landowners to report newly discovered
363
archaeological resources.
Although case law seems to indicate that archaeological-resource
regulations will not violate the Fifth Amendment, it is critical to an
umbrella statute’s effectiveness that the regulation be treated as a taking for
which compensation is due.364 For example, a commentator noted, “The
Penn Central case demonstrates that when government has an important
interest that it wants to protect, it overrides old doctrines and develops new
ones. If government values cultural treasures, then it may need to change
365
existing doctrines in order to provide incentives for their preservation.”
Besides actual payment to the landowner, the government could also
encourage compliance with the umbrella statute by offering tax credits for
360. Id. at 225-41.
361. Id. at 230-31; see supra text accompanying notes 286-91.
362. See CUNNINGHAM, supra note 63, at 101.
363. See Walsh, supra note 87, at 551-52 (arguing that because Alabama’s
Antiquity Act, which acts as an umbrella statute, does not provide compensation to
landowners, it discourages landowners to report); see also Cohan, supra note 16, at
56 (“[N]ational patrimony laws can actually create an incentive to remove artifacts
discovered by accident and dispose of them through black market smuggling
networks, rather than report the finds and jeopardize attracting governmental
interest in their property.”).
364. See Cohan, supra note 16, at 60 (suggesting tax credits for landowners to
encourage them to report archaeological resources); Gerstenblith, Identity and
Cultural Property, supra note 10, at 667 (arguing that laws vesting ownership in the
government must be “carefully tailored so that the state must pay rent to the
landowner for the temporary physical occupation of the land during which
excavation is conducted”).
365. Wilkes, supra note 192, at 194-95 (quoting Judy Gechman, Comment,
Rescuing Cultural Treasures: The Need for an Incentive Generating Doctrine, 24
HOUS. L. REV. 577, 594 (1987)).
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366
In addition, tax credits could
those who report archaeological resources.
be used to encourage certification and to reward proper preservation of
367
Tax deductions should also
privately owned archaeological resources.
be provided for individuals who are willing to share their collections with
368
Tax incentives
the public, for instance, by loaning them to museums.
seem feasible because the U.S. Internal Revenue Code already allows tax
369
deductions for individuals when they donate art to public museums.
After the enactment of the umbrella statute, proper documentation for
all archaeological resources would be required within a prescribed
timeframe. One commentator suggests rewarding customs inspectors with
cash bonuses when they recover archaeological resources lacking proper
370
The incentives would likely encourage customs
documentation.
inspectors to play an active role in reducing antiquities smuggling.371
Along with
economic incentives, criminal prosecution would
372
The nature of
encourage compliance with the umbrella statute as well.
the violation would determine the severity of the punishment, but the
potential fine or imprisonment must be substantial enough to deter looting.
Strict consequences must be imposed on buyers and sellers of
undocumented archaeological resources—not just those who initially loot
the sites.373 Further, the umbrella statute must impose fines for those who
fail to report newly discovered archaeological resources.
Most importantly, drafters of the umbrella statute must strive to
374
The
balance the public interest with the rights of property owners.
366. Cohan, supra note 16, at 60; see also Wilkes, supra note 192, at 203.
367. Wilkes, supra note 192, at 203-04.
368. Id. at 203.
369. Id.
370. Cohan, supra note 16, at 60.
371. See id.
372. See Gerstenblith, Identity and Cultural Property, supra note 10, at 684-86
(noting that the penalty section provided in Gerstenblith’s proposed model statute).
But see Cohan, supra note 16, at 11 (“Although the idea of simply outlawing the
trade in antiquities has an appeal because of its categorical and sweeping nature,
empirical evidence demonstrates that such laws alone do not provide a satisfactory
deterrence of smuggling of antiquities.”).
373. Gerstenblith, Controlling the International Market in Antiques, supra note
17, at 174 (“[T]he law in market countries should also impose detrimental
consequences on sellers and purchasers in order to reduce demand and the incentive
to loot archaeological sites.”).
374. Wilkes, supra note 192, at 194 (“A legal regime mandating preservation of
art objects could be constructed to account for this delicate balance between the
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expansion of historic-landmark preservation suggests that Americans are
receptive to regulations for the public benefit, despite strong American
375
It is critical that the
notions about the rights of private-property owners.
government promote public awareness about the need for archaeological
preservation, striving to position preservation so that it “becomes central to
376
the public consciousness and receives national recognition.”
V. CONCLUSION
The current legal regime in the United States inadequately protects our
archaeological resources, especially sites located on privately owned
377
A great deal of cultural identity is rooted in archaeology; thus,
land.
society as a whole benefits from the preservation of these resources. But
archaeological sites continue to be devastated by wide-scale looting.
Because archaeological resources are “finite, depletable, and
nonrenewable” resources, the United States must take immediate action to
preserve the remaining archaeological record or risk losing the scientific
knowledge forever.378 To deter looting, the United States must enact an
umbrella statute vesting ownership of all archaeological resources in the
government regardless of whether the resources are found on privately or
publicly owned land. The umbrella statute must also provide a certification
system for legitimately obtained artifacts. Although an umbrella statute
would withstand constitutional challenges, it must still provide economic
incentives and impose criminal sanctions to encourage people to comply
with the notification and certification requirements.
Even though it would be a step in the right direction, ultimately, an
umbrella statute alone would not eradicate the problem of looting.379
Preservation requires cooperation from many different groups. To be
effective, the public must be engaged in the preservation of archaeological
resources, and the government must promote education and awareness.
Further, the government must ensure that archaeological resources are
public interest in the maintenance of cultural heritage and the economic
expectations of collectors/purchasers of art objects.”).
375. Nafziger, supra note 241, at 601.
376. Wilkes, supra note 192, at 211; accord Gerstenblith, The Public Interest,
supra note 24, at 241 (“Legal responses alone are not, however, sufficient in
attempting to combat this problem. Public responses in terms of education and
leadership by public institutions are also necessary.”).
377. Patt, supra note 17, at 1210. But see Walsh, supra note 87, at 553 (arguing
that an umbrella statute is unnecessary to protect archaeological resources because
the government owns 39% of the land in the United States).
378. Gerstenblith, Identity and Cultural Property, supra note 10, at 564.
379. See CUNO, supra note 20, at 127.
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professionally maintained and accessible to both public and private sectors
of the economy. Without immediate attention, archaeological resources
will not be preserved for future generations.
GABRIELLE PASCHALL*
* Gabrielle Paschall is a January 2011 Thomas M. Cooley Law School
graduate.