Time Crime: protecting the past in the United States
Robert Hicks
Crime Prevention and Law Enforcement Services
Commonwealth of Virginia
USA
Slack Farm in rural Union County, Kentucky, was known to contain beneath its ploughed soil an important Native American village, a community of wattle and daub houses that, between 1300 and 500 years ago at the confluence of the Wabash and Ohio rivers, supported acres of maize, beans, and squash throughout the floodplain. Although relic hunters visited the site, the Slack family, who had owned the farm for generations, prohibited relic hunting.
But succeeding owners did allow it. In the late 1980s, several men paid the new landowner $10,000 (about ?6500) to lease digging rights between planting seasons. The men sought Native American artefacts attractive enough to sell profitably and to obtain them they bulldozed the site. Their digging pushed aside centuries of a people?s history ? their tools, potsherds, hearths, and houses ? while leaving modern debris, particularly soda and beer cans, among the artefacts. Significantly, the men disturbed or destroyed around 600 graves.[1] Aerial views of the bulldozed site, which aired on national television, showed a pockmarked landscape described by many as resembling a World War I battlefield.
Kentuckians were most disturbed by the desecration of graves but they were also disturbed by the inability of Kentucky law to cope with the damage and theft. The men could only be charged under state law with ?desecration of a venerated object?, a misdemeanour. Federal law, owing to the Archeological Resources Protection Act (ARPA), managed felony indictments through its interstate commerce provision (discussed below). This incident triggered a legislative change: as a result of Slack Farm, state law was amended to recognize grave desecration as a felony, a crime punishable by imprisonment in a state penitentiary. Each state has its own criminal laws which vary across the United States in the degree to which they protect the past. In recent years, however, the United States government has created laws that for the first time offer enforcement teeth to heritage protection.
Who are the looters?
Relic-hunting has been and continues to be a vigorous pastime for some and a commercial enterprise for others. Interest in popular history has soared in the United States. Local history has become a do-it-yourself industry: people untrained in academic history search through local records to construct their genealogies. They collect rock albums, Victorian mourning jewellery, and salt and pepper shakers, thus creating a multi-million-dollar market for objects variously described as historic, antique, or merely nostalgic. The high prices attached to some artefacts on the commercial market inevitably invite criminality.
People who illegally hunt relics ? the looters ? display a range of motivations but a new class of entrepreneur has appeared, the investor. The investor has no particular interest in history but sees artefacts solely as commodities that can be bought and sold for a profit (Table 1). Law-enforcement authorities maintain that collecting and investing interests outside the United States, notably in Germany and Japan, have fuelled looting particularly for Native American artefacts. Germans and Japanese buy approximately $20 million (?13 million) in Native American artefacts yearly; Civil War belt buckles fetch over $10,000; a Native American pot from the southwest United States sells for $400,000 (?270,000). ?If it?s old, it can be sold.?[2] Internet auctions pose a new threat: millions of artefacts, some advertised as illegally obtained, sell daily, attesting to a burgeoning market. The local looter can sell to a world-wide audience.
Table 1:
Monetary value of artefacts. The American Civil War figures compare the highest prices paid for the excavated artefacts in the listed categories for 1988 and 1995. (Source: various editions of Nancy Dearing Rossbacher (ed.), The Civil War Collector?s Price Guide, Virginia, Orange.) The prices given for Native American artefacts represent the highest prices known to have been paid for the listed items. (Source: federal law-enforcement officials.)
1.
Civil War artefacts
(Highest known price paid per piece; all items are ?dug?.)
Artefact
1888 1995
Plates and buckles $2600 $13,500
Canteens $2500 $4500
Cap, cartridge, pistol boxes $1300 $9500
Knives $450 $6000
Revolvers $450 $45,000
Bullets $130 $250+
Buttons $4000
2.
Native American artefacts
Pottery $400,000
Baskets $180,000
Carved stone objects $15,000
Rare or unusual points $10,000
In the United States, looting has afflicted all federal properties, particularly national parks and forests. Federal law enforcers, though, are handicapped in that they are spread thin. One officer in the national parks may patrol millions of acres. As a result, much looting goes undetected and unpunished. A recent handbook on criminal investigation states:
Archeological resources are nonrenewable: when they are looted or vandalized, the information they contain is lost forever. The looting of archeological sites in the United States is happening on a vast scale. Stated bluntly, part of our history has been, and continues to be, stolen.[3]
The nature of looting in the United States resembles that of many other countries. In some places, looting is an accepted multigenerational problem, a part of local culture. In other cases hobbyists, ignorant of the law, may trespass and loot unwittingly (Fig. 1). Professional looters, though, adopt countermeasures 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 vehicles, or by foot.
Figure 1:
Members of the Reed Creek Archaeology Club illegally excavate the graves of Native Americans in Wythe County, Virginia (site designation 44WY25). Virginia requires either a court order or a state permit to disturb burials, neither of which the club possessed. The object of the excavation was to recover ornamental artefacts buried with the dead. A joint FBI-Virginia State Police investigation ended the amateur excavation which resulted in criminal convictions of three men. This photograph was confiscated from the looters. (Photo: Virginia Department of Historic Resources.)
Looters observe law enforcement patrol behaviour and may appear on sites when law enforcement presence is low or hampered: at night (with the full moon to illuminate digging), during inclement weather, or on holidays. To further avoid detection, looters may post lookouts or use watchdogs, employing radio scanners to track nearby law enforcers. They wear camouflage clothes and may camouflage their equipment by painting shovels or metal detectors black. More sophisticated looters carry with them not only shovels and metal detectors but also probing rods (to locate graves or artefacts by detecting changes in soil density) and sifting screens. Enforcement officers have caught some looters bearing false identification or forged permits or even wearing fake park ranger uniforms. Near or on the looted site, the thief may store tools, supplies, or contraband artefacts for later retrieval.
Once the looter finds artefacts, he or she may sell the items directly, through a dealer, or through an investor who has only a few clients. Importantly, though, law enforcement officers cannot presume that looters, by virtue of the kind of crime they commit, are benign hobbyists. Sometimes looters are armed and may fire at an officer.
Applicable laws
Recent federal laws and a concomitant enforcement effort ? taught to law enforcers, prosecutors, and archaeologists through the Archeological Resources Protection Program conducted by the Federal Law Enforcement Training Center (FLETC) in Georgia ? have spurred investigations and prosecutions. Both the laws and the course recognize that officers, in protecting life and property, must protect our past as well.
While federal law has incriminated looting from federal or Native American properties almost since the beginning of the century, virtually no law enforcement took place until ARPA became law in 1979, later amended in 1988 to include sharper enforcement teeth due to obstacles encountered during prosecutions. The chief 1988 amendment for law enforcers was the reduction in the threshold commercial value ascribed to the artefacts plus the cost of site restoration and repair to enable a felony prosecution (as determined by a damage assessment conducted by an archaeologist). The 1988 amendments include the criminalization of attempts to destroy, damage, or remove protected resources, thus relieving officers of having to conduct surveillance while looters destroy a protected resource.[4] A general-intent law (meaning that the prosecution is not required to argue a specific intent to loot), ARPA prohibits people from excavating, damaging, defacing, altering, or removing (or attempting these acts) archaeological resources from public or Native American lands without a permit.[5]
To be a protected resource under ARPA, looted objects must constitute evidence of past human existence, possess archaeological interest (not archaeological significance), and be over 100 years old. Objects, or resources, are broadly defined to include not only relics such as pottery, tools, or shipwrecks, but also rock art, skeletal remains, features of houses or other constructions, 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, transport (or offer to do the same) resources in violation of ARPA, any other federal law, or any state or local law. Looters who illegally dig up artefacts on private property without permission and cross state lines to traffic in them have therefore violated ARPA, thus transforming a local case into a federal one.
A recent case affirmed ARPA?s jurisdiction over interstate trafficking in antiquities stolen in violation of state law, ARPA?s most versatile provision. The defendants had collected relics on private property and then engaged in interstate commerce; the court decreed that ?there is no right to go upon another person?s land, without his permission, to look for valuable objects buried in the land and take them if you find them?.[6]
ARPA contains other features attractive to law enforcers. Apart from criminal proceedings, ARPA permits a civil recourse through an administrative law judge.[7] Also, ARPA investigations yield forfeiture of assets: vehicles, equipment or tools, contraband, and clothing. Arizona judge Sherry Hutt has observed that as a result of almost a decade of prosecutions, ARPA ?is well ensconced in the legal landscape?.[8]
Another recent, significant federal law that bears on past resources is the Native American Graves Protection and Repatriation Act, or NAGPRA. Importantly for museums, holdings of Native American human remains must be inventoried and surveyed, in some cases the skeletons being repatriated to descendant Native Americans for reburial according to tribal custom. The same law, though, criminalizes illegal trafficking in Native American human remains or any cultural items.[9]
Investigative methods
The nature of looting presents enforcement difficulties. Once unearthed, artefacts are very difficult to link to a looted site. Many protected resources, whether visible remains or underground and hidden, are found away from public view, some within thousands of acres of national forests or parks. The best enforcement opportunity involves catching looters in the act. Short of apprehension in flagrante delicto, officers cultivate informants or obtain confessions. Informants may indeed play a key role in developing intelligence. Nearby farmers, hikers or campers, even hunters may witness looting. If officers discover fresh digging or site damage, surveillance may be possible.
No law enforcement officer can afford to devote dozens of hours to tracking looters. Fortunately, officers are most likely to encounter offences when pursuing other violations. In one case, police officers searching a suspect?s residence pursuant to a narcotics warrant photographed a collection of Native American relics later described as ?the most impressive collection of Indian artefacts in northern California?. A sheriff?s deputy who had been an archaeologist saw the photos, recognized the significance of the relics, and further intelligence brought another warrant to seize the artefacts. The suspect had been convicted previously under ARPA and the court had ordered the suspect?s return of looted artefacts. The photographed stash consisted of the best items from years of looting, hidden to prevent seizure by federal anthorities.[10]
Officers must be able to identify and describe tools and equipment used by looters. Many tools, and the camouflaged clothing that some looters wear, are innocuous by themselves, but taken in context create a suspicion of criminality. ?It is from the totality of the circumstances that reasonable suspicion may rise to the level of probable cause,? the standard for arrest.[11]
Under ARPA protocol, officers process a looting scene as they would any other crime scene, although looting cases involve some unique procedures. First of all, officers must carefully document, measure, and photograph the scene. Second, officers should attend to soil samples as a laboratory analysis might reveal pieces of pottery or bone or even pollen which particularly matches the evidence at the crime scene and perhaps to individual suspects (through analysis of dirt on their confiscated clothing). Third, officers should take casts of footprints and shovel impressions.
Analysis of impressions, coupled with the soil evidence, links both suspects and artefacts to a particular site. Federal cases require an archaeologist to assist by contributing a damage assessment, determining the costs significant to ARPA, and providing an exact description of what has been lost, recovered, damaged, or displaced. 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.
Federal, state, and local cooperation
Despite federal successes, parallel anti-looting efforts at the state and local level have been irregular. States? laws protecting historic or archaeological resources vary and sometimes are not parallel to ARPA.[12] Nevertheless, many state initiatives have shown promise. In Florida, for instance, the state legislature mandated a two-hour curriculum in basic law enforcement academy classes on archaeological resources protection. In the spirit of ARPA, recently the Supreme Court of Indiana affirmed a lower court decision that applied Indiana?s archaeological protection law to private property, where a man wished to dig Native American artefacts on his own property although the state required him to seek a permit to do so.[13]
In Virginia, for example, most historic or archaeological protection laws have specific applications not always comparable to federal interests. Virginia protects human burials wherever they are found on pain of a felony penalty. Misdemeanour penalties attach to other heritage laws. State permission, however, must be obtained for excavations on state-controlled property or on submerged resources in Virginia?s waterways (Fig. 2). While Virginia law defines ?objects of antiquity? similar to ARPA?s definition of archaeological resources, there are differences: objects of antiquity do not have to meet an age criterion (such as 100 years) to be protected and archaeologists are not required to help investigate crimes.
Figure 2:
An officer with the Virginia Department of Game and Inland Fisheries took this photograph of looting in progress. Ernest N. Walker and Houston L. Crayton, later convicted of removing state-protected Civil War artefacts without permission, are shown illegally removing artefacts with a small boat converted for the purpose. (Photo: Virginia Department of Game and Inland Fisheries.)
Investigating looting imposes challenges on law enforcement officers. In Virginia, without an archaeologist?s assistance, an officer would find it difficult to process a crime scene or present a case for prosecution, since an archaeologist is needed to describe what was disturbed, vandalized, or recovered and to assess a value on site damage or the recovered looted artefacts. Thus, a joint effort of the Virginia Department of Historic Resources and the Virginia Department of Criminal Justice Services produced a model policy on theft of historic resources (available on the Internet at <http://www.dcjs.state.va.us/crimeprevention/sampledirectives/manual/2-38R.rtf>) plus a training programme called ?Time Crime? that acquaints law enforcement officers with the looting problem, reviews applicable state and federal laws, and outlines an investigative protocol, modelled closely on federal procedures, honed through prosecutions. The training encourages officers to contact archaeologists to help conduct an investigation. A number of professional archaeologists throughout Virginia have volunteered to assist law enforcement officers with investigations and to testify in court. Virginia?s example demonstrates that, despite differences between state and federal laws, investigative methods developed through cases in other states can be adapted and that anti-looting laws that go unenforced owing to lack of knowledge can be revived provided local law enforcement officers receive tools and encouragement.
Since the Virginia program began in 1995, many investigations have occurred as a result of the training, and far more consultations have taken place between law-enforcement officers and archaeologists. Virtually all of the consultations have involved the disposition of human remains. Skeletal material is inadvertently discovered through construction, and sometimes deliberately excavated through looting (Fig. 3). Native American graves are looted for burial goods; graves of fallen Civil War soldiers are pilfered for military uniform paraphernalia. The consultations have revealed ambiguities in the law but more often serve to instruct relic hunters and citizens. Abandoned or disused cemeteries are imperilled because of development and vandalism, and their disturbance or destruction can unexpectedly ignite community concern.
Figure 3:
Publicity surrounding the convictions of two men for violating the Archaeological Resources Protection Act in Petersburg, Virginia, frightened a looter into presenting a local funeral home with this box of human remains (a Civil War soldier who had been buried near the Cold Harbor battlefield) together with associated artefacts. The precise location of the original burial remains unknown. (Photo: Robert D. Hicks.)
The Time Crime programme has evolved in unexpected directions. One historic site that features a summer school for middle school students of archaeology has incorporated a looting component in which students role-play investigators, crime-scene technicians, and even journalists. The role-play involves an enacted crime in progress featuring an illegal excavation for Civil War artefacts. Mimicking the practicum that teaches officers and archaeologists how to process a crime scene in the federal training course, the students must likewise interview the perpetrator, take notes, collect evidence, and make an arrest. Sometimes the time crime investigations themselves can involve the unexpected. An internal investigation in a state-run maximum security prison examined the possibility that a staff member had collected artefacts from the prison farm, which happened to be located in an archeologically rich area featuring a continuum of habitation from Palaeoindian to the arrival of Europeans.
To all prosecutors and law enforcement officers, however, anti-looting efforts mean more than skillful investigations: the public must be educated (Figs. 4 & 5). In many places, looting supplements income or serves people?s hobbies. Two Arizona attorneys observed that in order to present their case they first had to justify the crime of looting.[14] One reformed looter understood the message: ?Don?t dig ? you destroy history when you do. And don?t buy the stuff either ... Those bones down there ? they?re everybody?s ancestors. I say let ?em rest in peace.?[15]
Notes
1. Harvey Arden, 1989. Who owns our past? National Geographic 175(3), 376?93. Also, see Brian Fagan, 1988. Black day at Slack Farm. Archaeology 41(4), 15?16, 73.
2. Tom Dunkel, 1992. A nation?s heritage at risk. Insight February 17, 14.
3. Charles R. Swanson, Neil C. Chamelin & Leonard Territo, 1992. Criminal Investigation. 5th edition. New York (NY): McGraw-Hill, 60.
4. ARPA was carefully drawn to exclude hobbyists or collectors in that surface finds of arrowheads or coins, say, from protected federal or Indian lands are allowable without a permit.
5. ARPA it defined under 16 United States Code ?470aa-470ll. The legislative history of the law and its current application are amply described in Sherry Hutt, Elwood W. Jones & Martin E. McAllister, 1992. Archeological Resource Protection. Washington (DC): The Preservation Press.
6. United States v. Gerber 999 F.2d 1112 (7th Cir. 1993).
7. For further details of the ARPA civil procedure, see Sherry Hutt, 1994. The civil prosecution process of the Archaeological Resources Protection Act. Technical Brief No. 16, U.S. Department of the Interior, February.
8. Sherry Hutt, 1995. The Archaeological Resources Protection Act. The Federal Lawyer October, 34.
9. 535 USC ?3001.
10. 1996. Common Ground 1(1), 8. (This journal was formerly Federal Archeology magazine.)
11. Swanson, Chamelin & Territo, 1992. Criminal Investigation, 67.
12. For a compendium of state statutes, see Carol L. Carnett, A Survey of State Statutes Protecting Archeological Resources, a special report of the Preservation Law Reporter, Archeological Assistance Study no. 3, August 1995 (published jointly by the National Trust for Historic Preservation and the U.S. Department of the Interior). To aid federal prosecutors ? and state ones ? the General Litigation and Legal Advice Section, Criminal Division, U.S. Department of Justice published the Archeological Resources Protection Federal Prosecution Sourcebook, a compendium of case law, statutes, briefs, and related material on ARPA cases.
13. Indiana?s Historic Preservation and Archeology Act prevailed in Whitacre v. State, 629 N.E.2d (1994), affirmed 619 N.E.2d 605 (Ind. App. 1993).
14. Congressional Quarterly, 40.
15. Arden, 1989. Who owns our past?, 392.
