Message #129
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 

Date: Thu, 02 Apr 1998
Time Crime: Protecting the Past for Future Generations

[ AzTeC / SWA SASIG ]:

http://www.fbi.gov/leb/july971.htm

Time Crime: Protecting the Past for Future Generations 
By Robert D. Hicks 

Whether taken by naive hobbyists or plundered
by sophisticated criminals, the legacy of our
ancestors is in jeopardy. 
 
Mr. Hicks is a law enforcement specialist in the
law enforcement section of the Commonwealth of
Virginia's Department of Criminal Justice Services
in Richmond.  

Beneath the plowed soil of Slack Farm in rural
Union County, Kentucky, rested an important
Native American village, a community of wattle and
daub houses where acres of maize, beans, and squash
grew at the confluence of the Wabash and Ohio
Rivers between 500 and 1,300 years ago. Although
relic hunters periodically visited the site, the
Slack family, who had owned the farm for
generations, turned them away. 

But successive owners welcomed them. In the late
1980s, several men paid the new landowner $10,000
to lease digging rights between planting seasons.
To obtain the Native American artifacts they sought,
the men bulldozed the site. 

Neighbors, annoyed at and suspicious of the digging,
contacted the Kentucky State Police, who stopped the
operation. Inspecting the property, police found
human remains strewn everywhere. Aerial views of the
bulldozed site, which aired on national television,
showed a pockmarked landscape that, according to many
observers, resembled a World War I battlefield. In
their quest for wealth, the men had pushed aside
centuries of a people's history--their tools,
potsherds, hearths, and houses--while leaving modern
debris, including soda and beer cans, among the
artifacts. In particular, the men had disturbed or
destroyed hundreds of graves.1 Residents were
understandably upset, not only by the desecration of
the graves but also by the inability of Kentucky law
to cope with the damage and theft. Because the men
had crossed state lines with their bounty, they faced
felony charges stemming from the interstate commerce
provision of the Archeological Resources Protection
Act (ARPA), a federal law. However, under state law,
the men could be charged only with "desecration of a
venerated object," a misdemeanor. Outraged Kentuckians
demanded an amendment to the law; members of the state
legislature responded by voting unanimously to
criminalize grave desecration as a felony. Looters
illegally obtain artifacts or antiquities whereas
relic hunters obtain them legally but unscientifically.
They both span the spectrum of socioeconomic background,
education, and upbringing. In some places, looting has
become an accepted, multigenerational activity, a part
of the local culture. In other cases, hobbyists,
ignorant of the law, trespass and loot wherever they
choose, even in national parks. Whatever their
motivations and methods, these people are stealing a
part of history. And, unfortunately, they often get
away with it. 

THE SCOPE OF THE PROBLEM

An archeologist who serves as a consultant to police
investigating archeological theft estimates that over
half of the 6,000 recorded sites on national forest
lands in Arizona have been destroyed by looters. In
southwest Virginia, 95 percent of all Native American
graves have been destroyed or severely disturbed by
"headhunters," the local term for looters.2 Three recent
developments have fueled an increase in looting-the
public's fascination with the past, a growing interest
in collecting, and the rapidly escalating value of the
artifacts. 

Over the last 30 years, interest in popular history
has soared. Local history has become a do-it-yourself
industry. People untrained in academic history plod
through local records to construct their genealogies.
Seeking links to a fading past, but not necessarily
their own, they collect everything from rock albums
and memorabilia to salt and pepper shakers and
Victorian mourning jewelry, creating a multimillion
dollar market for objects variously described as
historic, antique, or merely nostalgic. 

Indeed, relic hunting has been, and continues to be,
a vigorously pursued pastime for some and a
commercial enterprise for others. Looters live by the
motto, "If it's old, it can be sold."3 They have cut up
and sold Inuit (Eskimo) totem poles. They have stolen
old tombstones from cemeteries and used them as lawn
ornaments. They even have stolen and sold human
remains. The high prices some artifacts bring on the
commercial market confirm their value and inevitably
invite criminality. Civil War belt buckles fetch over
$10,000 each; a Native American pot from the Southwest
sells for $400,000. German and Japanese collectors
alone buy approximately $20 million worth of Native
American artifacts yearly.4 

In many countries, antiquities have provided an
alternate economy. Civil wars in Asia and Europe leave
plundered museums in their wake, either through
deliberate destruction or merely as casualties of war.
Many of the pillaged art treasures enter the
international art market, where other museums may
purchase them, sometimes unwittingly, sometimes
knowingly.5 Competition for artifacts has become so
fierce that armed looters have assaulted and shot at
archaeologists performing scientific work in Central
and South America. 

APPLICABLE LAWS

The role of law enforcers has expanded recently;
enforcement of laws relating to the preservation of
history has become a key responsibility in some
jurisdictions. These agencies have realized that law
enforcement, in addition to protecting life and
property, must preserve the past as well. While
federal law has prohibited looting from federal or
Native American properties since the beginning of the
20th century, enforcement of those laws rarely
occurred until about 20 years ago. The Archeological
Resources Protection Act, which became law in 1979,
was strengthened in 1988, mainly to overcome obstacles
encountered during prosecutions. A general-intent law,
ARPA prohibits people from excavating, damaging,
defacing, altering, or removing archeological resources
(or attempting these acts) from public or Native
American lands without a permit.6 

To be protected resources under ARPA, looted objects
must constitute evidence of past human existence,
possess archeological interest (not necessarily
significance), and be over 100 years old. Objects, or
resources, are defined broadly to include not only such
relics as pottery, tools, and shipwrecks but also rock
art, skeletal remains, features of houses or other
construction, and even vegetal remains or organic waste. 

Of particular interest to state and local law enforcement,
however, is ARPA's commercial provision. No one may
sell, purchase, exchange, or transport resources (or offer
to do the same) in violation of ARPA, any other federal
law, or any state or local law. Thus, looters who dig up
Native American relics on private property without
permission and traffic those relics across state lines
violate ARPA. 

The 1988 amendments to ARPA included a felony
threshold of $500. If the cost to repair a damaged
resource plus either the commercial value of the
stolen artifacts or the archeological value (usually
measured as the cost of retrieving archeological
information from the site through scientific
investigation) exceeds $500, then the crime is a
felony. Under this definition of value, then, most
ARPA cases are felony investigations. The law also
prohibits attempts to destroy, damage, or remove
protected resources, so that officers do not have
to idly stand by and watch while looters destroy
those resources.7 

As a result of over a decade of prosecutions, ARPA
"is well ensconced in the legal landscape."8 Indeed,
formidable and inventive challenges to ARPA in the
courts have affirmed the law's utility and
effectiveness. In the late 1980s, for example,
Bradley Owen Austin was convicted for looting in the
Deschutes National Forest in Oregon. He challenged
the constitutionality of ARPA, claiming vagueness, and
also argued that he had the right to hunt relics to
further his education. The court ruled against him,
reinforcing the notion that public lands are held in
the public trust. Another more recent case affirmed
ARPA's jurisdiction over interstate trafficking in
antiquities stolen in violation of state law. 

ARPA contains other features that make it attractive
to law enforcement. In addition to calling for
criminal penalties, ARPA permits civil recourse
through an administrative law judge. Also, relic
hunters convicted under ARPA forfeit their assets,
including vehicles, equipment or tools, contraband,
and clothing. 

The other significant federal law that protects past
resources is the Native American Graves Protection and
Repatriation Act (NAGPRA). Important for museums, NAGPRA
mandates that holdings of Native American human remains
be inventoried and surveyed. In some cases, skeletons
have been returned to Native American descendants for
reburial according to tribal custom. 

The law also prohibits trafficking in Native American
human remains or any cultural items. After becoming
law in 1991, NAGPRA's first prosecution and conviction
occurred a few years later in Virginia, where a federal
government employee took illegally obtained Cheyenne
bones from the Custer Battlefield in Montana and sold
them to an undercover officer in Virginia.9 

LOOTING METHODS AND INVESTIGATIVE COUNTERMEASURES

The nature of looting presents enforcement difficulties.
Once unearthed, artifacts are difficult to link to a
looted site. Many protected resources, whether above or
underground, are hidden from public view, some within
thousands of acres of national forests or parks, where
one officer may patrol millions of square acres. As a
result, much looting goes undetected and unpunished.
Professional looters take steps to avoid detection.
They carefully plan their illegal excavations, studying
archival or library materials and topographical maps.
If the sites are remote, looters may reach them by
horseback, all-terrain vehicle, or foot. 

Looters observe law enforcement patrol behavior and
may approach sites only when law enforcement presence
is low or hampered, for example, at night (using the
full moon to illuminate digging), during inclement
weather, or on holidays. To further avoid detection,
looters may post lookouts, use watchdogs, or employ
radio scanners to track law enforcers. Some looters
carry false identification or forged permits. Law
enforcement officers have even caught looters
wearing fake park ranger uniforms. 

Not all looters develop such elaborate schemes to
avoid detection. Many simply wear camouflage
clothes and disguise their equipment by painting
shovels or metal detectors black. The more
sophisticated looters carry sifting screens and
probing rods that locate graves or artifacts by
detecting changes in soil density. Near or on the
looted site, the thief may store tools, supplies,
or unearthed artifacts for later retrieval. 

Once looters find artifacts, they may sell the items
directly, through a dealer, or through a broker who
serves only a few clients. During Project Sting,
agents from the National Park Service offered artifacts
allegedly looted from federal property to lure a real
estate businessman. The arresting investigator had first
identified the suspect at a relic show. At these legal
events, looters may sell legally obtained items
aboveboard, while surreptitiously arranging illicit
deals under the table. By comparison, hobbyists ignorant
of the law may openly try to sell illegally obtained
artifacts. 

Relic shows can assist law enforcement officers in
many ways. The shows can provide law enforcement
officers with investigative leads needed to pursue
undercover operations. Officers also can use these
shows to enlist assistance from legitimate traders
who want to keep their own reputations unblemished.
Officers even may be able to catch looters in the
act as they attempt to obtain merchandise for
upcoming relic shows. 

While the best enforcement opportunity obviously
involves catching looters in the act, officers also
may cultivate local informants or obtain confessions
from the looters themselves. Informants--nearby
farmers, campers, or hikers who may witness
looting--can provide crucial intelligence. 

As for the looters, anyone on or near public property
at odd hours becomes a candidate for further
investigation. In addition, if officers discover fresh
digging or site damage, they may be able to locate a
suspect close by and conduct a surveillance to obtain
additional information. No law enforcement officer can
afford to devote dozens of hours to tracking looters.
Fortunately, officers are most likely to encounter
offenses when pursuing other violations. In one case,
officers executing a search warrant at a residence
photographed a collection of Native American relics
later described as "the most impressive collection of
Indian artifacts in northern California."10 A sheriff's
deputy who had been an archeologist saw the photographs,
recognized the significance of the relics, and after
developing additional intelligence, served another
warrant at the same property, this time for ARPA
violations. As it turns out, the suspect previously had
been convicted under ARPA and had hidden the artifacts
in order to prevent their seizure by federal authorities. 

As another example, officers might stop the driver
of a pick-up truck on suspicion of driving under the
influence. If officers notice that the truck bed
contains cardboard boxes of what appears to be freshly
dug relics or human remains, along with dirt-encased
shovels, they should investigate further. 

Officers must be able to identify and describe the
tools and equipment used by looters. Many tools and
the camouflage clothing that some looters wear are
innocuous by themselves, but taken in context create
a suspicion of criminality.11 

It is important that law enforcement officers not
presume that looters, by virtue of the kind of crime
they commit, are benign hobbyists. Some looters arm
themselves and may fire at officers. In any event,
officers encountering looters should take precautions
for their own safety. Although looting cases involve
some unique procedures, officers should process a
looting scene much as they would any other crime scene.
First, they must document, measure, and photograph the
scene carefully. 

Second, they should collect soil samples. For most
other crimes, soil reveals little about the crime.
However, in looting cases, soil becomes important
evidence. A laboratory analysis might reveal pieces
of pottery or bone or even pollen that match the
evidence to the crime scene and perhaps to individual
suspects if dirt is found on their confiscated clothing. 

Third, officers should take casts of footprints and
impressions of shovels. Coupled with the soil, this
evidence can link suspects and artifacts to a
particular site. 

The case file should contain a statement from the
appropriate issuing authority that no state or federal
permit existed to allow the suspect to excavate, remove,
displace, or destroy protected resources. Finally,
federal cases require that an archeologist provide a
damage assessment-including an exact description of what
has been lost, recovered, damaged, or displaced-and
determine the costs significant to ARPA. 

FEDERAL, STATE, AND LOCAL COOPERATION

Despite federal successes, antilooting efforts at the
state and local level have been irregular. State laws
protecting historic or archeological resources vary and
sometimes do not parallel the ARPA. Nevertheless, many
state initiatives show promise. Investigative and
prosecutorial efforts have displayed creativity and
ingenuity in both sting operations and innovative
applications of the law. In 1993, Florida applied its
own Racketeer Influenced and Corrupt Organizations Act
to obtain guilty pleas for conspiracy from four men for
destructive relic hunting at both state-owned and
federally owned parks. Using bulldozers and backhoes,
the men had destroyed thousands of cubic yards of
historic materials.12 In Indiana, the state supreme
court affirmed a lower court decision that applied the
state's archeological protection law to private property.13 

In Virginia, most historic or archeological protection
laws have specific applications that do not not always
compare to federal interests. Virginia protects human
burials wherever they are found, on pain of a felony
penalty. Misdemeanor penalties attach to other heritage
laws. 

There is one difference between Virginia's law and the
ARPA that has important implications for law enforcement.
In Virginia, archaeologists are not required to help
investigate crimes. Still, without an archeologist's
assistance, an officer would find it difficult to process
a crime scene or present a case for prosecution. This
is because an archeologist's expertise usually is needed
to describe what was disturbed, vandalized, or recovered
and to place a monetary value on the damage to the site
and the recovered artifacts. For this reason, the state
trains officers to contact archaeologists to help conduct
investigations, and a number of professional
archaeologists have volunteered to assist law enforcement
officers with investigations and to testify in court. 

TRAINING INITIATIVES

Under its Archeological Resources Protection Program,
the Federal Law Enforcement Training Center provides
a 1-week training program for federal law enforcement
officers and prosecutors. This comprehensive program
reviews applicable laws, teaches investigative and
crime scene techniques, includes a field trip to an
archeological site, and tests participants with a
practical scenario. 

Some states have developed their own training
initiatives as well. In Florida, a new law mandates
a 2-hour curriculum on archeological resource protection
for basic law enforcement academy classes. In Virginia,
the Department of Historic Resources and the Department
of Criminal Justice Services created a policy on the
theft of historic resources. An accompanying training
program acquaints law enforcement officers with the
looting problem, reviews applicable state and federal
laws, and outlines an investigative protocol, modeled
closely on federal procedures and honed through
prosecutions. 

While law enforcement officers need training, the
public also must be educated. In many places, looting
serves people's hobbies or supplements their incomes.
In Arizona, for example, looting has become so firmly
entrenched in the culture that in order to present
their case in court, two Arizona attorneys first had
to justify why looting is a crime. CONCLUSION "Like
words plucked from the middle of a sentence,"14
artifacts stolen from their resting places leave a
question mark in the timeline of history. But with
the appropriate tools, training, and support, law
enforcement officers can help preserve the past. 


Endnotes
1 Harvey Arden, "Who Owns Our Past?" National
Geographic 175(3) (1989): 376-393; Also, see Brian
Fagan, "Black Day at Slack Farm," Archaeology 41(4)
(1988): 15-16, 73.
2 Thomas Klatka, archeologist, Virginia Department
of Historic Resources, interview by author, October
12, 1995.
3 Tom Dunkel, "A Nation's Heritage at Risk," Insight,
February 17, 1992, 14.
4 The theft of and trafficking in antiquities and
their market values has been documented widely.
See Dunkel, Insight; Daryl F. Gates and William E.
Martin, "Art Theft-A Need for Specialization," 
Police Chief, March 1990,   60-62; Barbara Hoffman,
"The Spoils of War," Archaeology 46(6) (1993): 37-40.
5 See Stephenie Slahor, "Society to Prevent Trade in
Stolen Art," Law and Order, October 1996, 181-2.
6 ARPA is defined under 16 U.S.C. Section 470aa-47011.
For a legislative history of the law and its current
application, see Sherry Hutt, Elwood W. Jones, and
Martin E. McAllister, Archeological Resource Protection
(Washington, DC: The Preservation Press, 1992).
7 ARPA was carefully drawn to exclude hobbyists or
collectors. Surface finds of arrowheads or coins, for
example, from protected federal or Indian lands are
allowable without a permit. However, taking such items
may constitute theft of government property.
8 Sherry Hutt, "The Archaeological Resources Protection
Act," The Federal Lawyer, October 1995, 34.
9 United States v. Maniscalco, No. CR-94-1139-M
(E.D. Virginia March 21, 1995). The defendant was
also charged with violating the ARPA.
10 Quoted in Common Ground, 1(1), 1996, p. 8.
11 See Charles R. Swanson, Neil C. Chamelin, and
Leonard Territo, Criminal Investigation, 5th ed.
(New York: McGraw-Hill, 1992), 67.
12 Reported in Federal Archaeology, 7(2), summer
1994, 11.
13 Indiana's Historic Preservation and Archeology
Act prevailed in Whitacre v. State, 619 N.E.2d 605
(Ind.App.1993), aff'd, 629 N.E.2d (1994), where the
state required a man to obtain a permit to dig
Indian relics on his own property.
14 Supra note 3, 36.

-----

From:	rhicks.dcjs@STATE.VA.US (Robert Hicks)
Subject: “Archaeological Resource Protection”
Date:	Thu, 02 Apr
    
ARCHEOLOGICAL RESOURCE PROTECTION by Sherry Hutt,
Elwood Jones, and Martin McAllister, published in 1992,
is available through the publisher, the National Trust
for Historic Preservation, 1-800-766-6847.  The book
costs about $20.  While the book carries an
excellent history of archeological protection laws,
the section on law enforcement investigative methods
is a bit slim.  Because of the book’s publication
date, it doesn’t survey the last six years’ worth of
ARPA cases and the lessons learned from them. A single
law enforcement text on investigations of archeological
resources theft has yet to be written, particularly one
that discusses not just federal laws and enforcement
protocol, but state and local examples as well.
Nevertheless, some useful literature for law
enforcement audiences exists, to wit:

1.	My own recent article, “Time Crime:  Protecting
the Past for Future Generations,”  FBI LAW ENFORCEMENT
BULLETIN, 66.7 (July 1997), pp. 1-7.  You can of
course reproduce this one without copyright problems.

2.	George S. Smith, John E. Ehrenhard, eds.,
PROTECTING THE PAST, CRC Press, Inc., Boca Raton,
Florida, 1991.  Useful articles in this volume
include:  “The destruction of archaeological sites
and data” by Paul R.  Nickens; “Some dimensions of
the pothunting problem,” by Thomas F. King; and
“Looting and vandalism of archaeological resources on
federal and Indian lands in the United States,”
by Martin E. McAllister.  This book, still in print,
retails for about $50 in hardback.  Publisher’s number:
1-800-272-7737.

3.	Charles R. Swanson, Neil C. Chamelin, and 
Leonard Territo, CRIMINAL INVESTIGATION, 5th edition,
McGraw-Hill, Inc., New York, 1992.  The chapter on
the looting of archeological sites contains the best
published guide on investigative methods for law
enforcement officers that I know of.

4.	Carol L. Carnett, Esq., A SURVEY OF STATE
STATUTES PROTECTING ARCHEOLOGICAL RESOURCES,
Archeological Assistance Study No. 3, Aug 1995,
pub. jointly by the US Dept of the Interior/National
Park Service, Archeological Assistance Division, and
the National Trust for Historic Preservation.  While
this book is not aimed at law enforcers, it’s the best
state-by-state examination of archeological protection
laws and includes criminal ones.  Call NPS at
202-343-4101 to find out about availability of copies.
Sells for around $5 each.
    
5.	U.S. Department of Agriculture publication,
VANDALISM:  RESEARCH, PREVENTION AND SOCIAL POLICY,
General Technical Report PNW-GTR-293, Nov 92.
Perhaps not the most useful publication for deriving
investigative strategies for law enforcement officers,
this pub nevertheless has insightful articles about
vandalism, incl. at least one on vandalism of rock art.

6.	The National Park Service, Departmental
Consulting Archeologist, has tried to build a database
of looting cases under the label, Listing of Outlaw
Treachery (LOOT) Information Clearinghouse.  You might
contact Richard Waldbauer at 202-343-4101.
    
I teach law enforcers to investigate thefts of and
vandalism to historic/archeological resources.
Would be glad to share my stuff, much of it which
derives from the federal Archaeological Resources
Protection Program.  Give me a call at 804-786-8421
or email me.

Robert Hicks, Law Enforcement Services Section
Va. Dept of Criminal Justice Services