Archaeological Resources
Protection Act of 1979
AN ACT To protect archaeological resources on public
lands and Indian lands, and for other purposes.
Be it enacted of the Senate and the house of Representatives
of the United States of America in Congress assembled,
SHORT TITLE
Section 1. This Act may be cited as the "Archaeological
Resources Protection Act of 1979."
FINDINGS AND PURPOSE
SEC. 2. (a) The Congress finds that-
(1) archaeological resources on public lands and Indian
lands are an accessible and irreplaceable part of the Nation's heritage;
(2) these resources are increasingly endangered because
of their commercial attractiveness;
(3) existing Federal laws do not provide adequate protection
to prevent the loss and destruction of these archaeological resources and
sites resulting from uncontrolled excavations and pillage; and
(4) there is a wealth of archaeological information which
has been legally obtained by private individuals for noncommercial purposes
and which could voluntarily be made available to professional archaeologists
and institutions.
(b) The purpose of this Arct is to secure, for the present and future benefit
of the American people, the protection of archaeological resources and
sites which are on public lands and Indian lands, and to foster increased
cooperation and exchange of info rmation between governmental authorities,
the professional archaeological community, and private individuals having
collections of archaeological resources and data which were obtained before
the date of the enactment of this Act.
DEFINITIONS
SEC. 3. As used in this Act-
(1) The term "archaeological resource" means
any material remains of past human life or actiivities which are of archaeological
interest, as determined under the uniform regulations promulgated pursuant
to this Act. Such regulations containing such determination shall include,
but not be limited to: pottery, basketry, bottles, weapons, weapon projectiles,
tools, structures or portions of structures, pit houses, rock paintings,
rock carvings, intaglios, graves, human skeletal materials, or any portion
or piece of any of the foregoing items. Nonfossilized and fossilized paleontological
spcimens, or any portion or piece thereof, shall not be considered archaeological
resources, under the regulations under this paragraph, unless found in
an archaeological context. No item shall be treated as an archaeological
resource under regulations under this paragraph unless such item is at
least 100 years of age.
(2) The term "Federal land manager" means,
with respect to any public lands, the Secretary of the department, or the
head of any other agency or instrumentality of the United States, having
primary management authority over such lands. In the case of any public
lands or Indian lands with respect to which no department, agency, or instrumentality
has primary management authority, such term means the Secretary of the
Interior. If the Secretary of the Interior consents, the responsibilities
(in whole or in part) under this Act of the Secretary of any department
(other than the Department of the Interior) or the head of any other agency
or instrumentality may be delegated to the Secretary of the Interior with
respect to any land managed by such other Secretary or agency head, and
in any such case, the term "Federal land manager" means the Secretary
of the Interior.
(3) The term "public lands" means-
(A) lands which are owned and administered by the United
States as part of -
(i) the national park system,
(ii) the national wildlife refuge system, or
(iii) the national forest system; and
(B) all other lands the fee title to which is held by
the United States, other than lands on the Outer Continental Shelf and
lands which are under the jurisdication of the Smithsonian Institution;
(4) The term "Indian lands" means lands of
Indian tribes, or Indian individuals, which are either held in trust by
the United States or subject to a restriction against alienation imposed
by the United States, except for any subsurface interest in lands not owned
or controlled by an Indian tribe or an Indian individual.
(5) The term "Indian tribe" means any Indian
tribe, band, nation, or other organized group or community, including any
Alaska Native village or regional or village corporation as defined in,
or established pursuant to, the Alaska Native Claims Settlement Act (85
Stat. 688).
(6) The term "person" means an individual,
corporation, partnership, trust, institution, association, or any other
private entity or any officer, employee, agent, department, or instrumentality
of the United States, of any Indian tribe, or of any State or political
subdivision thereof.
(7) The term "State" means any of the fifty
States, the District of Columbia, Puerto Rico, Guam, and the Virgin Islands.
EXCAVATION AND REMOVAL
SEC. 4. (a) Any person may apply to the Federal land manager
for a permit to excavate or remove any archaeological resource located
on public lands or Indian lands and to carry out activities associated
with such excavation or removal. The application sh all be required, under
uniform regulations under this Act, to contain such information as the
Federal land manager deems necessary, including information concerning
the time, scope, and location and specific purpose of the proposed work.
(b) A permit may be issued pursuant to an application
under subsection (a) if the Federal land manager determines, pursuant to
uniform regulations under this Act, that-
(1) the applicant is qualified, to carry out the permitted
activity,
(2) the activity is undertaken for the purpose of furthering
archaeological knowledge in the public interest,
(3) the archaeological resources which are excavated
or removed from public lands will remain the property of the United States,
and such resources and copies of associated archaeological records and
data will be preserved by a suitable university, museum, or other scientific
or educational institution, and
(4) the activity pursuant to such permit is not inconsistent
with any management plan applicable to the public lands concerned.
(c) If a permit issued under this section may result
in harm to, or destruction of, any religious or cultural site, as determined
by the Federal land manager, before issuing such permit, the Federal land
manager shall notify any Indian tribe which may consider the site as having
religious or cultural importance. Such notice shall not be deemed a disclosure
to the public for purposes of section 9.
(d) Any permit under this section shall contain terms
and conditions, pursuant to uniform regulations promulgated under this
Act, as the Federal land manager concerned deems necessary to carry out
the purposes of this Act.
(e) Each permit under this section shall identify the
individual who shall be responsible for carrying out the terms and conditions
of the permit and for otherwise complying with this Act and other law applicable
to the permitted activity.
(f) Any permit issued under this section may be suspended
by the Federal land manager upon his determination that the permittee has
violated any provision of subsection (a), (b), or (c) of section 6. Any
such permit may be revoked by such Federal land manager upon assessment
of a civil penalty under section 7 against the permittee or upon the permittee's
conviction under section 6). (g)(1) No permit shall be required under this
section or under the Act of June 8, 1906 (16 U.S.C. 431), for the excavation
or removal by any Indian tribe or member thereof of any archaeological
resource located on Indian lands of such Indian tribe, except that in the
absence of tribal law regulating the excavation or removal of archaeological
resources on Indian lands, an individual tribal member shall be required
to obtain a permit under this section.
(2) In the case of any permits for the excavation or
removal of any archaeological resources located on Indian lands, the permit
may be granted only after obtaining the consent of the Indian or Indian
tribe owning or having jurisdiction over such lands. The permit shall include
such terms and conditions as may be requested by such Indian or Indian
tribe.
(h)(1) No permit or other permission shall be required
under the Act of June 8, 1906 (16 U.S.C. 431-433), for any activity for
which a permit is issued under this section.
(2) Any permit issued under the Act of June 8, 1906,
shall remain in effect according to its terms and conditions following
the enactment of this Act. No permit shall be required to carry out any
activity under a permit issued under the Act of June 8 , 1906, before the
date of the enactment of this Act which remains in effect as provided in
this paragraph, and nothing in this Act shall modify or affect any such
permit.
(i) Isssuance of a permit in accordance with this section
and applicable regulations shall not require compliance with section 106
of the Act of October 15, 1966 (80 Stat. 917, 16 U.S.C. 470f).
(j) Upon the written request of the Governor of any State,
the Federal land manager shall issue a permit, subject to the provisions
of subsections (b)(3), (b)(4), (c), (e), (f), (g), (h), and (i) of this
section for the purpose of conducting archaeological research, excavation,
removal, and curation, on behalf of the State or its eduational institutions,
to such Governor or to such designee as the Governor deems qualified to
carry out the intent of this Act.
CUSTODY OF RESOURCES
Sec. 5. The Secretary of the Interior may promulgate regulations
providing for-
(1) the exchange, where appropriate, between suitable
universities, museums, or other scientific or educational institutions,
of archaeological resources removed from public lands and Indian lands
pursuant to this Act, and
(2) the ultimate disposition of such resources and other
resources removed pursuant to the Act of June 27, 1960 (16 U.S.C. 469-469c)
or the Act of June 8, 1906 (16 U.S.C. 431-433). Any exchange or ultimate
disposition under such regulation of archaeological resources excavated
or removed from Indian lands shall be subject to the consent of the Indian
or Indian tribe which owns or has jurisdiction over such lands. Following
promulgation of regulations, under this section, notwithstanding any other
provision of law, such regulations shall govern the disposition of archaeological
resources removed from public lands and Indian lands pursuant to this Act.
PROHIBITED ACTS AND CRIMINAL PENALTIES
Sec. 6. (a) No person may 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 4, a permit referred to in section 4(h)( 2), or the exemption
contained in section 4(g)(1).
(b)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), or
(2) any provision, rule, regulation, ordinance, or permit
in effect under any other provision of Federal law.
(c) 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) 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 $5,000, 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.
(e) The prohibitions contained in this section shall
take effect on the date of the enactment of this Act.
(f) Nothing in subsection (b)(1) of this section shall
be deemed applicable to any person with respect to an archaeological resource
which was in the lawful possession of such person prior to the date of
the enactment of this Act.
(g) Nothing in subsection (d) of this section shell be
deemed applicable to any person with respect to the removal of arrowheads
located on the surface of the ground.
CIVIL PENALTIES
Sec. 7. (a)(1) Any person who violates any prohibition
contained in an applicable regulation or permit issued under this Act may
be assessed a civil penalty by the Federal land manager concerned. No penalty
may be assessed under this subsection unless such person is given notice
and opportunity for a hearing with respect to such violation. Each violation
shall be a separate offense. Any such civil penalty may be remitted or
mitigated by the Federal land manager concerned.
(2) The amount of such penalty shall be determined under
regulation promulgated pursuant to this Act, taking into account, in addition
to other factors-
(A) the archaeological or commercial value of the archaeological
resource involved, and
(B) the cost of restoration and repair of the resource
and the archaeological site involved.
Such regulations shall provide that, in the case of a second
or subsequent violation by any person, the amount of such civil penalty
may be double the amount which would have been assessed if such violation
were the first violation by such person. The amount of any penalty assessed
under this subsection for any violation shall not exceed an amount equal
to double the cost of restoration and repair of resources and archaeological
sites damaged and double the fair market value of resources destroyed or
not recovered.
(3) No penalty shall be assessed under this section for
the removal of arrowheads located on the surface of the ground.
(b)(1) Any person aggrieved by an order assessing a civil
penalty under subsection (a) may file a petition for judicial review of
such order with the United States District Court for the District of Columbia
or for any other district in which such a person resides or transacts business.
Such a petition may only be filed within the 30-day period beginning on
the date the order making such assessment was issued. The court shall hear
such action on the record made before the Federal land manager and shall
sustain his action if it is supported by substantial evidence on the record
considered as a whole.
(2) If any person fails to pay an assessment of a civil
penalty-
(A) after the order making the assessment has become
a final order and such person has not filed a petition for judicial review
of the order in accordance with paragraph (1), or
(B) after a court in an action brought under paragraph
(1) has entered a final judgment upholding the assessment of a civil penalty,
the Federal land managers may request the Attorney General
to institute a civil action in a district court of the United States for
any district in which such person is found, resides, or transacts business
to collect the penalty and such court shall have jurisdiction to hear and
decide any such action. In such action, the validity and amount of such
penalty shall not be subject to review.
(c) Hearings held during proceedings for the assessment
of civil penalties authorized by subsection (a) shall be conducted in accordance
with section 554 of title 5 of the United States Code. The Federal land
manager may issue subpenas for the attend ance and testimony of witnesses
and the production of relevant papers, books, and documents, and administer
oaths. Witnesses summoned shall be paid the same fees and mileage that
are paid to witnesses in the courts of the United States. In case of contumacy
or refusal to obey a subpena served upon any person pursuant to this paragraph,
the district court of the United States for any distrcit in which such
person is found or resides or transacts business, upon application by the
United States and after notice to such person, shall have jurisdiction
to issue an order requiring such person to appear and give testimony before
the Federal land manager or to appear and produce documents before the
Federal land manager, or both, and any failure to obey such order of the
court may be punished by such court as a contempt thereof.
REWARDS; FORFEITURE
Sec. 8. (a) Upon the certification of the Federal land
manager concerned, the Secretary of the Treasury is directed to pay from
penalties and fines collected under sections 6 and 7 an amount equal to
one-half of such penalty or fine, but not to exceed $500, to any person
who furnishes information which leads to the finding of a civil violation,
or the conviction of criminal violation, with respect to which such penalty
or fine was paid. If several persons provided such information, such amount
shall be divided among such persons. No officer or employee of the United
States or of any service in the performance of his official duties shell
be eligible for payment under this subsection.
(b) All archaeological resources with respect to which
a violation of subsection (a), (b), or (c) of section 6 occurred and which
are in the possession of any person, and all vehicles and equipment of
any person which were used in connection with such violation, may be (in
the discretion of the court or administrative law judge, as the case may
be (subject to forfeiture to the United States upon-
- (1) such person's conviction of such violation under
section 6,
- (2) assessment of a civil penalty against such person
under section 7 with respect to such violation, or
- (3) a determination of any court that such archaeological
resources, vehicles, or equipment were involved in such violation.
(c) In cases in which a violation of the prohibition
contained in subsection (a), (b), or (c) of section 6 involve archaeological
resources excavated or removed from Indian lands, the Federal land manager
or the court, as the case may be, shall provide for the payment to the
Indian or Indian tribe involved of all penalties collected pursuant to
section 7 and for the transfer to such Indian or Indian tribe of all items
forfeited under this section.
CONFIDENTIALITY
Sec. 9. (a) Information concerning the nature and location
of any archaeological resource for which the excavation or removal requires
a permit or other permission under this Act or under any other provision
of Federal law may not be made available to the public under subchapter
II of chapter 5 of title 5 of the United States Code or under any other
provision of law unless the Federal land manager concerned determines that
such disclosure would-
(1) further the purposes of this Act or the Act of June
27, 1960 (16 U.S.C. 469-469c), and
(2) not create a risk of harm to such resources or to
the site at which such resources are located.
(b) Notwithstanding the provisions of subsection (a),
upon the written request of the Governor of any State, which request shall
state-
(1) the specific site or area for which information is
sought,
(2) the purpose for which such information is sought,
(3) a commitment by the Governor to adequately protect
the confidentiality of such information to protect the resource from commercial
exploitation,
the Federal land manager concerned shall provide to the
Governor information concerning the nature and location of archaeological
resources within the State of the requesting Governor.
REGULATIONS; INTERGOVERNMENTAL COORDINATION
Sec 10. (a) The Secretaries of the Interior, Agriculture
and Defense and the Chairman of the Board of the Tennessee Valley Authority,
after public notice and hearing, shall promulgate such uniform rules and
regulations as may be appropriate to carry out the purposes of this Act.
Such rules and regulations may be promulgated only after consideration
of the provisions of the American Indian Religious Freedom Act (92 Stat.
469; 42 U.S.C. 1996). Each uniform rule or regulation promulgated under
this Act shall be submitted on the same calendar day to the Committee on
Energy and Natural Resources of the United States Senate and to the Committee
on Interior and Insular Affairs of the United States House of Representatives,
and no such uniform rule or regulation may take effect before the expiration
of a period of ninety calendar days following the date of its submission
to such Committees.
(b) Each Federal land manager shall promulgate such rules
and regulations under subsection (a), as may be appropriate for the carrying
out of his functions and authorities under this Act.
COOPERATION WITH PRIVATE INDIVIDUALS
Sec. 11. The Secretary of the Interior shall take such
action as may be necessary, consistent with the purposes of this Act, to
foster and improve the communication, cooperation, and exchange of information
between-
(1) private individuals having collections of archaeological
resources and data which were obtained before the date of the enactment
of this Act, and
(2) Federal authorities responsible for the protection
of archaeological resources on the public lands and Indian lands and professional
archaeologists and associations of professional archaeologists.
In carrying out this section, the Secretary shall, to
the extent practicable and consistent with the provisions of this Act,
make efforts to expand the archaeological data base for the archaeological
resources of the United States through increased cooperation between private
individuals referred to in paragraph (1) and professional archaeologists
and archaeological organizations.
SAVINGS PROVISIONS
Sec. 12. (a) Nothing in this Act shall be construed to
repeal, modify, or impose additional restrictions on the activites permitted
under existing laws and authorities relating to mining, mineral leasing,
reclamation, and other multiple uses of the public lands.
(b) Nothing in this Act applies to, or requires a permit
for, the collection for private purposes of any rock, coin, bullet, or
mineral which is not an archaeological resource, as determined under uniform
regulations promulgated under section 3(1).
(c) Nothing in this Act shall be construed to affect
any land other than public land or Indian land or to affect the lawful
recovery, collection, or sale of archaeological resources from land other
than public land or Indian land.
REPORT
Sec. 13. As part of the annual report required to be submitted
to the specified committees of the Congress pursuant to section 5(c) of
the Act of June 27, 1960 (74 Stat. 220; 16 U.S.C. 469-469a), the Secretary
of the Interior shall comprehensively report as a separate component on
the activities carried out under the provisions of this Act, and he shall
make such reommendations as he deems appropriate as to changes or improvements
needed in the provisions of this Act. Such report shall include a brief
summary of the actions undertaken by the Secretary under section 11 of
this Act, relating to cooperation with private individuals.
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The Vermont Heritage Network
The University of Vermont Historic Preservation Program
Wheeler House, University of Vermont
Burlington, VT 05405
(802)656-3180
http://www.uvm.edu/~vhnet
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