Message #61: From: AzTeC SW Archaeology SIG To: "'Matthias Giessler'" Subject: Good To Have A State Law Even If NAGPRA Covers It Date: Wed, 29 Jan 97 17:01:00 MST Encoding: 98 TEXT AZ has a State Burial Law. The AZ Burial Law and AZ Antiquity Act-related documents are on the WWW at the following locations: http://www.azleg.state.az.us/ars/41/844.htm http://www.swanet.org/ars.html http://www.swanet.org/burial.html http://www.swanet.org/asmregs.html About three - four years ago, I tried to bring a prosecution against a vandal (read '+#@$%^*') who made a mostly lously living digging up pots (human remains were involved in the case). The case was dismissed because of "vague" wording in the AZ statute. The State Superior Court judge noted that the State must prove that the vandal was digging, and, the the vandal 'knew' he digging on state land (read the part in the AZ statute that says 'knowingly excavates on State Land without a permit') -- knowing was argued to refer to (or modify) both the act of digging and to the act of being present on State land while digging. Since the State could not prove the defendant's 'mental condition' (we could not prove that he knew that he was on State land), the defendant went free. Our AZ statute has felony provisions, and you can bet, I was really shocked by the lesson I received in English grammar and American good-ol'-boy legalese. The County Attorney went out of his way to make the case, but we simply couldn't win because of the judge's ruling on the word 'knowingly.' By the way, the defendant's attorney held a BA in Anthropology from the University of Arizona (learning that fact was akin to having salt rubbed in a wound). After the Court loss, as Agency Compliance Archaeologist at the State Land Department, I was sufficiently irritated (read 'pissed-off') that I gathered a group of people to re-write the State Statute. In the proposed new legislation, we made it perfectly clear that you couldn't dig anywhere in AZ without the permission of the landowner. Our group did a great job with the language of the bill, and I still have copies of the information for those who are interested in gritty detail. The AZ Attorney General endorsed the bill and we had great support in the State Legislature. The AZ AG bent over backwards to push the bill. Unfortunately, the bill was derailed and killed by powerful legislators. I went home empty-handed. The legislators felt the issue was not a problem. One legislator earnestly told me that he had friends who dig pots and he thought it was perfectly OK that they continue even despite the existing law ( !! ). Arizona has a strong Antiquities Act. Arizona has a strong Burial Law. They both contain wide loopholes that should be removed while the felony provisions should be retained. This is my bitter-sweet song, so I can only wish you (and all States) success with strenthening State antiquities legislation. Brian Kenny email@example.com firstname.lastname@example.org http://www.swanet.org/ >From: Steve Russell The sale of the contents of Native American graves is illegal under NAGPRA without regard to where the grave was located, but getting a US Attorney interested in federal prosecution is sometimes easier said than done. Prosecuting grave robbers is beneath the self-image of a lot of US Attorneys. State officials, on the other hand, usually have to stand for election and can be mau-maued more easily to take action. For this reason, it is good to have a state law even if NAGPRA covers it. Also, because the US and the state (and the tribe!) are separate sovereigns, it is possible to have multiple prosecutions for the same acts without violating double jeopardy. As a matter of practice, the Justice Dept. has strict guidelines about when they will prosecute in federal court after a state court acquittal. But having a state protection law can't hurt and might help. Steve Russell > From: "Nicholson, Claudia"
> To: nagpra-l-approval > Regarding the Tennessee bill you mentioned: isn't all of this already illegal under NAGPRA? Doesn't federal law supersede any local regulations in this regard? Tim? Claudia Nicholson Curator of Collections South Dakota State Historical Society, Pierre > From: nagpra-l-approval > To: nagpra-l > Subject: Re: Oiler's > Date: Tuesday, January 28, 1997 12:30AM > At this time, the project is not underway. Some of us in the local community are petitioning to obtain the results of the core drilling. Some of you may know that in 1990 there was a successful halt affected by local natives and their supporters to a proposed landfill that was to be built on Bell's Bend in the Nashville area. Look for pleas from us in the near future as this project escalates. As we speak, legislation is being drafted to make the posession, sale, procuration, disposal and collection of NA remains, funerary objects, and associated articles a felony. Last year, a similar proposal was defeated (TN house bill 1082). This bill will be better written and has greater support from the outset. Our biggest problem is the lack of Native People in the Nashville area. Support from outside will be absolutely necessary for the football Stadium to be stopped. As we get more information, we will inform all that are interested.