Academic journal article Environmental Law

Warp and Weft: Weaving a Blanket of Protection for Cultural Resources on Private Property

Academic journal article Environmental Law

Warp and Weft: Weaving a Blanket of Protection for Cultural Resources on Private Property

Article excerpt

I. Introduction II. Current Protections for Private Sites

A. Deterrence Programs

1.Permit Requirements for Sites Not Associated

with Burials

2.Burial Desecration Statutes

3.ARPA Trafficking Provisions

4.Umbrella Statutes

B. Conservation Programs

1. State Regulatory Controls

2. Registries and Certifications

          a.National Register
          b.State Registers

3. Conservation Easements and the Uniform

Conservation Easement Act

4. Acquisition in Fee by State or Private

Party

III. Summary

I. INTRODUCTION

Archaeological sites provide information about past ways of life, ancient and not-so-ancient belief systems, and environmental adaptations of human cultures. These stockpiles of information have slowly accumulated around the world, including in North America, where some scholars claim humans have been in residence for close to 40,000 years.(1) While scientists and laypersons learn a great deal from archaeological research, and the public as a whole is fascinated by archaeology, this fascination, combined with Anglo-American racist attitudes about Native Americans,(2) has had a destructive impact upon the nation's archaeological sites. Domestic interest and foreign demand for Native American contemporary art and antiquities has fueled an epidemic of pothunting, or looting, of ancient habitation sites and Native American burial grounds.(3) Rummaging through such grounds in search of artifacts destroys the stratigraphy (or geological levels) of the site, from which most archaeological information is gained. Moreover, should a site contain skeletal remains, looters not only disturb the site, they also desecrate a human grave.

Several federal laws have been passed in the last century to protect cultural resources on public and Indian lands,(4) but these statutes have done little to protect sites on private lands from pothunting. Because private lands make up most of the property in this country, a large proportion of the archaeological sites in the nation are still unprotected from looting by the owners of the property. Federal laws fail to address many aspects of the pothunting problem due to constitutional constraints on the expansion of federal power. The Archaeological Resources Protection Act of 1979 (ARPA),(5) for instance, only prohibits unauthorized disturbance of cultural resources on public or Indian lands, except in certain circumstances, such as when there is a violation of state or local law and resources are transported across state lines.(6) Federal law, therefore, creates a loosely-woven net of protection on federal lands, which needs to be supplemented by more specific controls at the state and local level.

Unfortunately, many state laws resemble the federal laws in that they only protect sites on public lands or Indian lands, or are only concerned with unauthorized digging on private lands. For example, Virginia law forbids any disturbance of "any object of antiquity on state-controlled land, or on a state archaeological site or zone without first receiving a permit . . . . "(7) Many state laws, which resemble Virginia's, are limited to protection of sites on state lands. Their application is thus limited, particularly in the East, where due to earlier settlement a much smaller proportion of public lands exist than in the West.

What little protection presently exists has taken a long time to achieve because, until recently, the sacred cow of private property has prevented lawmakers from imposing stricter protections for cultural resources on private lands.(8) The U.S. Supreme Court's current conservatism has increased fears that many land use regulations may be held to violate the Fifth Amendment's prohibition of uncompensated takings.(9) In spite of these concerns, some states have taken steps to institute land use controls that may protect threatened cultural resources. …

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