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
kenny@getnet.com
kenny@planning.mcdot.maricopa.gov
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.