Date of this Version
U.S. Department of Interior, Archeological Assistance Program Technical Brief No. 20, February 2007.
The criminal and civil penalty sections of the Archaeological Resources Protection Act (16 USC 470aa-mm; ARPA) require the assessment of damage to archeological resources that are harmed by unauthorized acts. Archeological resource damage assessment uses the methods of archeology to provide the information necessary to prove that the archeological elements of a criminal or civil violation of ARPA are met according to the requirements of the law and the judicial system (see Figure 1). The assessment of damages to archeological resources in archeological violation cases cannot be carried out without reference to these legal requirements. In other words, archeological resource damage assessments require both archeological expertise and adherence to legal requirements.
The purpose of this technical brief is to describe and explain the archeological resource damage assessment process. The legal basis of archeological resource damage assessment is presented by identifying the elements that must be proven for the prosecution of either a criminal or civil violation of ARPA. The Act's definition of an “archeological resource” also is discussed because it is a critical component of the elements of a violation and is a central issue in damage assessment. The remainder of the technical brief describes and explains the three components of archeological resource damage assessment: (1) field damage assessment; (2) value and cost determinations; and (3) archeological resource damage assessment report preparation. Procedures are recommended for accomplishing each of these damage assessment components.
Archeological Elements of an ARPA Criminal Violation
Black's Law Dictionary (2005:559) defines “elements of crime” as, “The constituent parts of a crime … that the prosecution must prove to sustain a conviction”. The archeological elements of an ARPA criminal violation come directly from the statute:
• 16 U. S. C. § 470ee. Prohibited acts and criminal penalties
• (a) Unauthorized excavation, removal, damage, alteration, or defacement of archaeological resources
No person may excavate, remove, damage, or otherwise alter or deface, or attempt to excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under section 470cc of this title, a permit referred to in section 470cc(h)(2) of this title, or the exemption contained in section 470cc(g)(1) of this title.
• (b) Trafficking in archaeological resources the excavation or removal of which was wrongful under Federal law
No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange any archaeological resource if such resource was excavated or removed from public lands or Indian lands in violation of—
(1) the prohibition contained in subsection (a) of this section, or
(2) any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.
• (c) Trafficking in interstate or foreign commerce in archaeological resources the excavation, removal, sale, purchase, exchange, transportation or receipt of which was wrongful under State or local law
No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law.
• (d) Penalties
Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (b), or (c) of this section shall, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both: Provided, however, That if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500, such person shall be fined not more than $20,000 or imprisoned not more than two years, or both. In the case of a second or subsequent such violation upon conviction such person shall be fined not more than $100,000, or imprisoned not more than five years, or both.
Archeological Elements of an ARPA Civil Violation
Archeological Resources Protected by ARPA
Field Damage Assessment
Value and Cost Determination
Procedures for Determination of Commercial Value.
Procedures for Determination of Archeological Value.
Examples of Categories of Scientific Information Retrieval Operations in an Archeological Value Determination
Cost of Restoration and Repair
Procedures for Determination of Cost of Restoration and Repair
Examples of Categories of Emergency and Projected Restoration and Repair Operations in a Cost of Restoration and Repair Determination
Archeological Resource Damage Assessment Report Preparation
Basic Stylistic Rules
Procedures for Archeological Resource Damage Assessment Report Preparation
Summary and Conclusions
NPS Archeology Program Acknowledgements