Oregon's Senate Bill 61: Balancing Protection and Privatization of Cultural Resources

By Somervell, Katherine S. | Environmental Law, Spring 1995 | Go to article overview

Oregon's Senate Bill 61: Balancing Protection and Privatization of Cultural Resources


Somervell, Katherine S., Environmental Law


I. Introduction II. Background A. Oregon's Cultural Resources Laws Prior to SB 61 1. Grave Protection 2. Archaeological Statutes B. Legislative Models 1. Archaeological Resources Protection Act of 1979 2. Revised Code of Washington 3. Native American Graves Protection and Repatriation Act 4. Columbia River Gorge National Scenic Area Management Plan 5. National Historic Preservation Act Amendments of 1992 C. Issues Hoped To Be Resolved in SB 61 III. The Legislative Process A. The 1991 Legislative Session 1. Senate Bill 225 2. House Bill 3464 B. The 1993 Legislative Session: SB 61 Begins as Four Separate Bills 1. Senate Bill 60 2. Senate Bill 61 3. Senate Bill 495 4. Senate Bill 497 C. Consensus Bill 61--The Senate Phase D. SB 61--The House Phase E. Results of Rulemaking 1. Dispute Resolution Rules 2. Archaeological Permit Rules IV. Results A. Qualified Successes B. Shortcomings C. Proposals to Supplement SB 61 and Further Strengthen Oregon's Cultural Resource Laws V. Conclusion

I. INTRODUCTION

Archaeological research indicates that indigenous peoples first populated parts of Oregon more than 13,000 years ago.(1) Excavations near Malheur Lake in the Great Basin region of Oregon have uncovered sagebrush bark sandals, rabbitskin robes, nets, grinding tools, and weapons dating back more than 6,000 years.(2) While tribal communities thrived throughout the state, the area around The Dalles was a particularly active major trading center for the entire Northwest region.(3) During the summer months, as many as 22,000 people gathered to exchange goods and stock up on salmon from the abundant harvest.(4) Recent discoveries of Minnesota pipestone, Southwestern turquoise, Alaskan copper, and idols of apparent Mayan origin attest to The Dalles' vast trading network.(5)

Traces of the pervasive historical presence of native tribes in Oregon have proved tempting for artifact collectors. Valuable archaeological sites have been looted and Native American graves plundered for years.(6) When the passage of the Archaeological Resources Protection Act (ARPA)(7) in 1979 made it illegal to excavate or surface collect on federal lands, professional looters and hobbyists simply transferred their activities to state and private lands, where the dearth of laws protecting such sites enabled them to loot with near impunity.(8) Federal public lands are still targets, however. A recent study by the U.S. Forest Service reports that professional looters on federal lands have simply become more sophisticated in their methods of evading apprehension.(9) Although professional looters generally decimate a single site, the vast legions of casual collectors and weekend hobbyists wreak far more cumulative damage over larger areas.(10)

The effect of the loss of these historic and cultural resources cannot be underestimated. Fragile archaeological sites cannot be replaced, and much valuable information is lost to future study.(11) Aside from the objective scientific importance of these sites, however, damage to Indian burial sites, no matter how ancient, causes genuine grief in contemporary tribal members, who feel as strong a connection with ancient ancestors as with grandparents and great-grandparents.(12)

To add insult to this psychic injury, in Oregon, as in other states, prosecutors have had a very difficult time securing convictions against violators.(13) These difficulties stem from two different sources. The first is local sympathy towards corectors--many communities consider relic hunting a harmless recreational activity.(14) The problem this presents becomes particularly pronounced when artifact collecting in an area is so pervasive that it becomes impossible to pick an impartial jury.(15)

The second difficulty prosecutors face is proving the violation. In the past, Oregon law contained three major statutory loopholes that enabled violators to undermine the prosecutor's case. First, while the Oregon statutes allowed collecting on private land pursuant to the landowner's written permission,(16) the statute did not explicitly require prior written permission. …

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Oregon's Senate Bill 61: Balancing Protection and Privatization of Cultural Resources
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