ARCHAEOLOGY AND THE LAW

Patrick S. Hallinan

Attorney, Board of Directors

Preservation of American Prehistory

We are all imminently aware of the critical situation
which presently confronts the science of archaeology. Our

modern industrial society, as a by-product of its technology
and population expansion, has laid waste the great bulk of
remains of the cultures of the indigenous people who once
populated this land. Urban sprawl, highways, dams and

multitudinous undertakings required to meet the needs and

demands of 230 million people in a free enterprise system have
plowed under or capped over with asphalt up to 70 or 80 per

cent of the aboriginal sites within the territorial limits of

the United States. Unless this trend, which appears to progress
geometrically, is reversed in the very near future our time
will be spent in the review and analysis of artifacts in

museums and universities. Excavation techniques, along with

the use of all the new tools available to us through developments
in allied sciences (such as obsidian hydration, microanalysis,

carbon 14 techniques, etc., as well as the myriad to come in the
future which open new doors to understanding Man's past

activities) must forever be laid aside as no longer useful in
our efforts. No sites will remain for their application.

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How may we most fruitfully expend our energies to preserve
for future generations what remains of our aboriginal heritage?
The answer is patent. We must turn to the Federal and State

Governments to enlist their sanctions against further destruction
and procure their funding for the preservation or exploration

of threatened sites. We must enter into the arena of politics,
form pressure and special interest groups, and amass sufficient
public support that we can speak to legislators in terms of

votes for them or against them when their names appear on the

ballot for re-election. We have no funds available with which
to make the kind of contributions made by great business and

corporate interests who lobby for special privileges.  Our hope
lies with the public concern for the preservation of the
environment and our approach should be to encourage that

concern and direct its energies on behalf of our science.

We must commit the public to our cause and convince them that
the preservation of the aboriginal heritage of this country
is in their best interests.

I should like to review, in this discussion, and in a

very general manner, some of the Federal and State legislation
which presently exists, comment upon the strength or weakness

of that legislation, the problem areas and the gaps that exist,
and suggest manners of shoring up some of these deficiencies
and resolving problems in the area.

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LEGISLATION:

Legislation dealing with the protection and preservation
of prehistoric sites falls into two categories. The first is
"antiquities" laws and the second is so-called "enabling"
legislation.

Antiquities laws are negative sanctions which prohibit the
defacement or destruction of monuments and sites. Criminal
penalities are attached for violation of these laws.

Unfortunately, legislation which prohibits and punishes is

generally not effective. The crime of Federal bank robbery
carries a penalty of 25 years incarceration in a Federal

penitentiary. FBI statistics have shown that the number of
bank robberies throughout the United States have increased
year by year.

Antiquities laws affect the individual, the vilified pot
hunter who spends his weekends looting sites for arrow points.
They do not affect the great corporate monster whose

development activities cause the overwhelming bulk of site
destruction.

Finally, and what may the greatest weakness in the utility
of antiquities laws, is what borders on a total lack of
enforcement. All too frequently, those charged with the

enforcement of such laws have large personal collections of

local artifacts. Furthermore, they are extremely sensitive to
the voting pressure of numerous local pot hunters in small

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communities, such as occurs in many areas of Nevada. Some law

enforcement officers simply have better things to do with their
time than patrolling widely scattered sites looking for
collectors.

The second kind of legislation, enabling legislation, is

affirmative legislation. It is legislation which provides for
the preservation or excavation of sites and the preservation
and dissemination of the information derived therefrom.

The problems encountered in such legislation are numerous.
In the first instance, vast areas of land and activity are

covered not at all. Within the area that is covered by such
legislation,, the exceptions are often so frequent, as occurs

in the applicable California legislation, that the legislation
itself becomes virtually meaningless.

Within the structure of government each bureaucracy is
jealous of its own prerogatives. These bureaucracies are

attached to special interests within the State Government and

vie with each other for power, prestige and funding. Therefore,
even though the preservation of sites may be encumbent upon the
government through legislative mandate, powerful departments,

such as highways, water resources, and the like, will brook no
encumbrance upon their projects and will pave over or inundate
sites with no remorse. All too frequently such legislation is
articulated as a policy statement and lacks teeth in it to

deter the violator. This is usually compounded by failure to

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designate a person or department responsible to enforce the

legislation or to provide guide lines by which the person or

department should act or the manner in which violations should
be treated. The California Environmental Quality Act is an

example of this confusion. One frequently becomes so entangled
in the bureaucratic structure that he throws up his hands in
despair, vowing never to return to Sacramento again, and

confines his activities to the local department of archaeology
or whatever museum to which he may be attached. This may be
inherent in the principles of the formation of bureaucracies
and their self-perpetrating and preserving mechanisms, but
I personally feel there is actual malice to the madness.
True environmental quality legislation would be greatly
detrimental to many of the interests of powerful private

developers, construction companies and various departments
of the State and Federal Government. A ringing policy

statement, enacted into legislation, with no teeth in it, serves
as a balm for public concern while in reality doing little to
deter the money making ventures of private enterprise or the
maintenance or acquisition of power by various governmental
bureaucracies .

Finally, and what is often the greatest weakness of good
legislation, is insufficient funding or funds ear-marked for

such limited activities that the project itself is frustrated.
An example is the manner in which funds may be expended to

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salvage sites lying within the right of way of projects of the
Department of Highways of the State of California. These may

be excavated. However, according to an opinion of the Attorney
General (No. 70/52, June 18, 1970), no funds may be expended
for survey in advance of such excavation nor may funds be

expended immediately to either side of the right of way nor may

funds be allotted for the publication of data recovered. Hence,
all too frequently a site is discovered as the bulldozer exits
the opposite side and archaeologists become relegated to the

role of titled pot hunters, ripping out what artifacts they may
whose only value will be as curios, devoid of cultural context
forever destroyed.

FEDERAL LEGISLATION:

A review of Federal Legislation is not an exhaustive

task. Section 432 of Title 16, USCA, requires a permit for
the disturbance or destruction of any object of antiquity

situated on lands owned or controlled by the United States.
Section 433 of that Title provides that failure to procure
such a permit is a misdemeanor, punishable by a period of
incarceration of not more than 90 days, and/or a fine of

not more than $500. This law was enacted in June, 1906, and
except for certain provisions pertaining to National Parks
(Sections 9a, 10 and iQa of the same Title) is the sole

negative sanction in the United States Codes. It is, however,

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sufficient to cover virtually any vandalism on any lands

within the jurisdiction of the Uniited States.  Its greatest

weakness is the manner in which it is enforced. We contacted

the Department of Justice in Washington, D.C. and the Executive
Secretary of the United States Courts where records are kept
relating to prosecutions for the violation of each and every

law of the United States. We were informed that their records
disclosed not a single prosecution under Section 433 within
the past three years, a period in which such data is now

computerized, and neither could recall ever having known of
a prosecution under this Section.

In 1971, Preservation of American Prehistory caused to
be distributed a series of questionnaires to various persons

throughout the United States active in the field of archaeology.
The responses indicated that great variation in protection and
preservation existed within different kinds of Federally owned
or controlled lands. The following is a generalized breakdown
of the situation, as reflected in the responses, of four gross
categories of land within the jurisdiction of the Federal
Government:

1.   National Parks:  Enforcement is very good, generally
being restricted to those sections cited above which pertain
to National Parks.

2.   Lands administered by the Federal Government: These
include National Forests , National Monuments , etc., where

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preservation and protection of archaeological sites was
generally found to be very poor.

3.   Operational lands:  These include such lands as those
ear-marked for Federal projects, dams, roads, etc., where
protection and preservation was found to be poor.

4.   Open land:  Such as that administered by the Bureau
of Land Management where protection and preservation was non-
existent.

Personal experience supports the conclusion in this last
category. My thesis work was devoted to the excavation and
study of what apparently was the largest open site in the
Great Basin, Churchill 15, intimately associated with the

famous Lovelock Cave, in Churchill County, Nevada. This site
was situated on lands administered by the Bureau of Land

Management. Private collectors had amassed a collection of
approximately 25,000 projectile points from this site, while

only 250 were included in scientific collections. Pot hunting
had reached the point in which debitage from the surface of

the site was being picked up by the collectors to make mosaic
tables.

What can be done as regards the enforcement of this
legislation? It seems to me grossly unfair to expect the

archaeologist to perform a citizen's arrest on a law violator,
which he has a right to do, and transform himself from a

scientist into a police officer. For many it would be distasteful.

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For all it would constitute a great waste of time, involving
appearances in Court, testifying as a witness, subjecting
oneself to cross-examination and, if the prosecution were

unsucessful, opening oneself up to actions for civil liability
for wrongful arrest and malicious prosecution.

Vigorous enforcement would be helpful at a local level.

This must be done by local officers charged with the enforcement
of these Statutes and vigorous prosecutions by United States

Attorneys before United States Magistrates. Encouragement by

the Department of Justice to the local authorities is essential.
The Department of Justice is susceptible to pressure at the

local level through the United States Attorney as well as in
Washington. A hue and cry by the local citizenry will rouse
the United States Attorney and pressure from legislators in

Washington will frequently cause the Attorney General to react.

A dedication by a sustantial number of the local citizens
to the preservation of their own historical resources is

critical to both these approaches. The creation of local
awareness and concern for archaeology and to unite with

non-professionals in a common cause is an end we must strive
for on a state-wide or nation-wide level as well.

Federal enabling legislation is generally handled

separately by each department of the Federal Government which
deals with various lands under its, jurisdiction. Enormous

variation exists from department to department in the magnitude

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of the legislation and the funds available. Basin salvage

programs in the Midwest were well funded and ably carried out
prior to the damming of various tributaries of the Missouri

River, while a brief reading of the pertinent sections dealing
with the administration of BLM lands indicates that this
department has little legislation and virtually no funds
avaailable to it for allocation to the preservation and
protection of archaeological sites.

Vast sectors of State and private lands are not included

within the ambit of Federal legislation. Opponents of the idea
of the extension of Federal control argue that the sacred

concept of private property prohibits Federal activity in this
area. This is sheer and absolute hogwash. The Federal
Government, if it wished, could legislate and protect

archaeological sites wherever found as part of the national

heritage and natural resources of this country. Their failure
to do so is simply an example of the lack of political muscle
of archaeologists and conservationists heretofore.

Federal environmental impact legislation is quite similar

to State legislation and will be discussed more fully hereafter.
Certain problems of enforcement are unique to the Federal

system. Who can enforce compliance with the law? Certainly
the proper Federal officials, if they are so inclined, can

require those within the ambit of environmental preservation
legislation to live up to its requirements. However, the

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traditional position of the Courts of the United States is that
an individual, or even a group of individuals, has no standing

to question the expenditure of Federal funds by Federal agencies.
The fact that one is a taxpayer, says the Courts, does not

invest him with the right to question most Federal activity.
A recent and disasterous example of this reasoning was the

result of the law suit brought by the Sierra Club against the
Walt Disney interests concerning their development of Mineral

King. The case was thrown out of Court because the Sierra Club
was unable to show a special interest or a particular harm,

even though Walt Disney interests were apparently violating the
environmental impact laws. Whether or not archaeologists would
be able to show a special interest or particular harm to have
standing in a Federal Court to raise the issue of violation

of Federal environmental laws by private interests, States or
agencies of the Federal Government remains an open question.
Considerable legal research and thinking needs to be done

in this area. If such could be established, then we would

have a valuable tool with which to deal with the scoundrels.
STATE LAWS:

California has a single viable antiquities law, Section
5097.5 of the Public Resources Code, which in substance,

prohibits site destruction without a permit on State owned or
controlled lands. Punishment for violation of this Section
is up to six months in the County Jail, and/or a fine of up

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to $500. Its infirmities are similar to those commented on

above applying to the Federal antiquities law of 1906. However,
we have no statistics as to the prosecution under this law,
although private communications with students in the field

indicate a pattern of enforcement similar to that encountered
on Federal lands.

Penal Code, Section 622-1/2 prohibits site destruction
by anyone on private land, except by the owner or his agent.
This, in effect, prevents nothing but a simple trespass as
anyone with consent of the owner is constituted, in law,

his agent. Get the owner's O.K., and you can run a bulldozer
through the mound to facilitate the collection of arrow points
and no offense is committed.

Thus, in the private sector, California in effect possesses
no antiquities law except where, under recent decisions, the

California Environmental Quality Act may be extended. However,
under the police power of the State, California would have the

same right to legislate in the private area as does the Federal
Government. They have simply refrained from doing so for the
same reasons the Federal Government has refrained. We simply
have very little political juice.

The State enabling legislation, in part, is found under
Sections 5097, et. s., of the Public Resources Code. These

deal with sites located on State owned or controlled land and

the legislation provides- that whatever State agency is threatening

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such sites may submit a report to the Park and Recreation

Department who, in turn, may do something about it, as long as
what is done does not interfere with whatever project is being
conducted. No funding is provided.

That, in effect, is no legislation at all. A field

marshall could drive a division of panzer armour through the
hole and never touch the sides. It is totally discretionary
and, as we have commented above, runs headlong into the teeth
of the most powerful bureaucratic interests in the State
Government. Coupled with the fact that sites are usually

discovered after a State project is well under way, preservation
and excavation must, by definiton, interfere with that project's
completion.

Environmental quality legislation may be found in Sections
21000 et. se    of the Public Resources Code, known as the

Environemental Quality Act of 1970. In brief, the legislation
constitutes a laudable public declaration of the policy of this
State to protect, rehabilitate and enhance the environmental

quality of the State, including, in Section 21001(c) "...to...
preserve for future generations representations of all plant
and animal species and examples of the major periods of
California history." Theoretically this would include

archaeological sites threatened with destruction. However,
this legislation is a classic example of the making of a

laudatoryr policy statement while bureaucratically extracting

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the teeth from the law. There is no criteria to determine how
the impact reports will be judged, the standards that should

be used, the. manner in which policy shall be enforced, or even
who, in the last analysis, is responsible for its enforcement.
Section 21103 of that Code states that the Office of Planning
and Research shall "in conjunction with appropriate State,
Regional and Local Agencies, coordinate the development of
objectives, criteria and procedures to assure the orderly

preparation and evaluation of environmental reports required
by this division." After what would surely be a long and
heart-rending effort by Planning and Research, we may, if

fortunate, have orderly impact reports prepared. Beyond this
no assurance exists for the people of the State California
that anything will be done about them.

In spite of these defects, two recent California Court
decisions, of great import to conservationists, offer some
hope.

In Environmental Defense Fund v. Coastside Company Water
District, the San Mateo Water District, proposing a new water

supply and storage project, failed to file a sufficient impact

report with the County Planning Commission. Certain individuals
brought an action to restrain the District from proceeding.

The Court, in granting the injunction, stated that even

though the Office of Planning and Research had established no

guidelines, in the absence of such guidelines the Court itself

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will determine whether impact reports have satisfied the

requirements of the law. To do so, the Court held that it
will refer not only to the legislative purpose articulated
in the statute but to the aDDlicable Federal standards

established under the Federal Environmental Quality Act.
The Court also enforced the long-standing position in

California that individual citizens of our State may bring
such actions to contest wrong doing by State or Municipal
Agencies.

The second major holding was that of the State Supreme
Court in Friends of Mammoth v. The Board of Supervisors of
Mono County, 104 Cal. Rptr. 16. In this case, private

developers applied for and were granted building permits by the
Board of Supervisors of Mono County without filing an impact
statement. A class action by residents of the area and by

certain individual plaintiffs was brought to enjoin the project.
The Supreme Court held that the intent of the California

Environmental Quality Act was to include conduct which affected
the environment by private individuals as long as there was some
connection with State or local agencies. The Court found that
the application for and receiDt of a permit, license or other
permission was sufficient to bring those private interests

within the scope of the Act and required the Dresentation of

an impact statement. The Court, while not directly faced with
the question, articulated the position that California Courts

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would establish standards of sufficient conformity and police
enforcement, relying on Federal legislation and findings in
the area.

These landmark decisions offer us enormous possibilities.
Problems still exist. The major porblem which immediately

confronts us is whether or not the preservation of "the major

periods of California history" includes prehistoric archaeology.
Relying on Federal decisions and a development of the
legislative intent at the time of the passage of the

California Environmental Quality Act we should find a home in
this section. This, however, may very well require a Court

finding that archaeology is entitled to the same consideration
as botany, geology or like sciences.

A second problem will be the expense and burden on

individuals who seek, under the Act, to require compliance
where voluntary compliance by State, Municipal or private

agencies is sought to be avoided. It is possible that State
funds may be available to compensate citizens seeking the
enforcement of California laws but that question requires
considerable research and investigation.

A possible solution to many of our difficulties would

lie in the enactment of legislation similar to Assembly Bill
1788, which was vetoed by Reagan. Not inconsistent with his

positon on redwoods, the Governor undoubtedly felt that if you
have seen one archaeological site you have seen them all.

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This bill, sponsored by the Society for California Archaeology,
provided for workable operating procedures dealing with the
preservation or exploration of archaeological resources on
State lands and furthermore activated the California

Archaeological Commission as a watchdog agency responsible to
see that the law would be honored and enforced. A task force
has since been constituted, made up of some 15 individuals

from various departments of the State of California, institutions
of higher learning and other interested organizations, whose
mandate is to come up with a proposal along the lines of the
heretofore vetoed legislation or a viable alternative.

Communication of our concern to members of the task force

would be advantageous at this juncture and would facilitate

the procurement of a reasonable recommendation for legislation.

Finally, local ordinances in some counties exist which

tread where the Federal and State Governments have heretofore

feared to go. Highly recommended is the ordinance in existence
in Marin County, Ordinance No. 1589, which makes it "t...

unlawful for any person, firm, corporation or co-partnership to
knowingly disturb in any fashion whatsoever or excavate, or

cause to be disturbed or excavated any Indian midden without a

permit being issued therefor by the Department of Public Works."
If an area of proposed construction contains a site of some

significance, a grace period of 60 days must be allowed for the
salvage of materials therein prior to undertaking; the project

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proposed. If the project is begun and a site encountered,
the project must stop and the proper authorities contacted

to provide them an opportunity to salvage the material within
the above cited 60 day period. Violation of this Ordinance
carries with it a penalty of up to six months in the County
jail and/or up to $500 in fines.

The problem of these kinds of ordinances, and Marin

County's is a good example, is that no funding exists to carry

out the purpose of the Ordinance. Salvage, if it occurs at all,
must be done on a voluntary basis by some institution or group
interested in archaeology. Coordination of efforts on this
level is frequently so peripatetic that frustration of the

purpose is often assured. Furthermore, this Marin Ordinance
relates only to unincorporated areas in the County, those

within the jurisdiction of the Board of Supervisors, and does

not apply to the Municpal Corporations within the County borders.
Be that as it may, such legislation does provide a wedge which
archaeologists and other interested groups can use to at least
initally impede the destruction of local sites.

From the above discussion it seems obvious in which

direction we must turn. Our activities must be in the political
sector, at least in the immediate future. And unless such
activities are successful, the remainder of our activities
will be relegated to museums.

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What is the key to success? The key to success, as

mentioned earlier, is political muscle. Political muscle,
in our case, must be votes and that means public support.

T have heard from the inception of my career in archaeology

the desire of my colleagues to educate the public. If educated,
they claim, then they cannot help but realize the value of our
heritage and will desire to see their tax dollars expended for
its preservation and protection and will vote into office

those legislators who will do just that. We have conducted

public forums, opened museums, held summer schools, and we are
on the verge of oblivion.

And yet it cannot be-denied that the romance and mystery

of the science has a great allure for the public. This usually
manifests itself through the villain of the piece, the
pot-hunter. That term is expanded to include amateur

archaeologists, individuals uninitiated into the mysteries of
the profession. In fact, so hostile is the professional to

the amateur that he has forced the amateur to play the role of
the pariah. I am afraid that we have provided the woodsman
with his axe handle.

Let's give a share of archaeology back to the people of
the State of California.  Let's divide the loot and the

pleasure among them. If we foster amateur societies and open
digs to amateurs, persons interested, and if we set up local

museums which are put together from local sources by locals - -

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indeed, under the direction of a professional -- then maybe we
will get the kind of support we must have. We have denied

amateurs the right of access to sites so why should they support
further legislation which only fosters that position? How do
you propose to convince the California taxpayer that an arrow
point in the basement of the Lowie Museum at Berkeley is so
important that the State should expend several millions of

dollars per year to get it there? Indeed, we do not want it
hanging on the wall of someone's living room, but what if it

were down the street in a local museum where one could take his
children and relate to them how that person helped discover it,
or his neighbor did, and why it was important as a slice of the

history of Contra Costa County or Alameda County or Modoc County
or Yolo County.

In conclusion, we need help from the citizens of the State,
or the citizens of the United States, to get through the

legislation and procure the funding necessary to preserve our
prehistoric heritage. Unless we are willing to give the

people whose help we need one hell of a lot more than we have
given them heretofore, we are going to find ourselves selling
pencils in the world of power politics.

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