ARPA, NAGPRA and
Federal Laws Prohibiting Theft or Destruction of Government Property
Today, the primary laws that impact collecting of historic and prehistoric period Native American art are ARPA, the Archaeological Resources Protection Act of 1979, and NAGPRA, the Native American Graves Protection and Repatriation Act of 1990. ARPA prohibits excavation without a permit on federal
and Indian lands and trafficking in archaeological resources that have been
illegally removed. NAGPRA is focused on the repatriation of human remains and ritual objects to tribes from any museum, institution or State or local government agency that receives federal funds. Other federal laws deal with the theft of objects from sites on government and Indian lands or to damaging ruins or graves, considered destruction of federal property. The Archaeological Resources Protection Act of 1979 (ARPA) Both ARPA
and NAGPRA contain umbrella provisions that vastly increase their scope. Under
the federal regulations dealing with archaeological resources (43 CFR 10),
if an archaeological resource was at any point in its history excavated or
removed in violation of any federal, state, or local law, then it is illegal to
sell, purchase, exchange, transport or receive it after passage of ARPA in
1979. No matter low long ago an illegal act took place, a resale or transfer today can trigger a new violation of ARPA. This means that it could be illegal today to buy or sell an object that was removed 50 or even 90 years ago from federal or Indian lands. The earlier violation could no longer be prosecuted due to expiration of the statute of limitations. However, an ARPA charge could be made based on the resale or later transfer. Every case, every sale or transfer is fact-specific. It is important to know as much as possible about earlier transactions, including where an object came from, when it was removed, and whether there was permission to remove it. Because the earliest law applying to artifacts, the Antiquities Act, was passed in 1906, even an artifact that has circulated in the market for a long time can be unlawful to sell, trade, or even donate to a museum if it can be proved that it was removed illegally after 1906 and the person making the transfer knew it. A
virtually identical object from private lands is perfectly legal to buy orsell. An object excavated before 1906 is lawful to buy or sell. An object
excavated with a permit after 1906 (perhaps by a museum) and later sold is
legal. In the vast majority of situations in which an object has circulated in the market since before passage of ARPA, no one knows where an object was found or how it came on to the market. In these circumstances, the burden of proof would be on the government to show that there was a violation of law at some point in the chain of transfers. As time passes, more and more 20th century materials will potentially be subject to ARPA. However, trade goods of any age that were made for the market and sold legally from federal or Indian lands such as reservations or pueblos should not be subject to ARPA. The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) NAGPRA
has two main objectives. First, it protects Native American or Native Hawaiian
ownership rights to culturally significant items, human remains and funerary
objects found on federal and tribal lands. Second, it requires inventory and
repatriation of remains and culturally significant items now in museums and
other institutions to tribes that claim them. NAGPRA
makes trafficking in Native American human remains and cultural items from
federal and tribal lands a criminal offense. (Trade in human remains, even from
private land, is often prohibited by other State and local laws.) Artifacts, even of great cultural significance, that are found on private land are legal for individuals to own under NAGPRA, although they may not be immune to other types of claims. 18 USC 1361 AND 16 USC 641 Other federal laws are used both to protect archaeological sites and to aid claims of tribal ownership. Federal law 18 U.S.C. 1361 protects any U.S. government property from willful or attempted depredation. "Depredation" has been defined as plundering, robbing or pillaging. This law prohibits damage to lands, sites, and resources under the land. Another
federal law, 16 U.S.C. 641, applies to theft or embezzlement of any “thing of
value” of the United States or any department of the U.S. The theft provision
applies to items taken from either federal or Indian lands. The embezzlement
provision was originally focused on organized crime and Indian casino gambling. In the
context of the art trade, it is considered embezzlement when a tribal member
sells an object that he had a legal right to possess, but the item actually
belonged to the tribal community. There is no minimum age requirement for the
object. This law has been used in cases involving ritual masks and medicine
bags that a tribal member sold to someone outside of the tribe. It is easy to
see that there would be possible confusion with apparently legitimate, lawful
activity. There have also been recent government claims that 16 U.S.C. 641
makes it illegal to pick up arrowheads from the surface of federal lands,
although ARPA expressly permits it. Federal Laws protecting Species - The Bald and Golden Eagle Protection Act, The Migratory Bird Treaty Act, The Endangered Species Act, The Lacey Act Laws that protect bald and golden eagles and migratory bird species from over-hunting can have unintended consequences for collectors and dealers today. Most people know that artifacts containing eagle feathers can’t be sold; far fewer realize that it is a crime to sell, and sometimes even to possess an object decorated with feathers from the most common wild birds. Other laws protect endangered species and marine mammals. Materials from endangered species, from tortoise shell to ivory, have often been used to embellish Indian jewelry. Sacred and
Culturally Important Objects Artifacts, even of great cultural significance, that are found on private land are legal for individuals to own under NAGPRA, although they may not be immune to other types of claims. Tribes may claim that they have communal ownership of an item sold by an individual tribal member and say that their sale was illegal. As part of a prosecution or defense, tribal elders may be called in to give expert opinion on whether an object is communally owned. The difference may not be obvious, or ultimately, provable. The classification of an object as cultural patrimony is necessarily in the eye of the beholder. This is just a summary of current federal laws. Please call 505-412-2209 for more information on how these laws can affect you!This is a communication for the purpose of providing information and a legal advertisement. Information on this website is not legal advice or a substitute for legal advice. Every situation is different. You should contact your attorney to obtain advice on your particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site does not create an attorney-client relationship between Kate Fitz Gibbon and the user. Contacting Kate Fitz Gibbon by any means, including mail, phone, fax or email, does not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author alone. |