Time crime: protecting the past for future generations - role of law enforcers

Beneath the plowed soil of Slack Farm in rural Union County, Kentucky, rested an important Native American village, a community of wattle and daub houses where acres of maize, beans, and squash grew at the confluence of the Wabash and Ohio Rivers between 500 and 1,300 years ago. Although relic hunters periodically visited the site, the Slack family, who had owned the farm for generations, turned them away.

But successive owners welcomed them. In the late 1980s, several men paid the new landowner $10,000 to lease digging rights between planting seasons. To obtain the Native American artifacts they sought, the men bulldozed the site.

Neighbors, annoyed at and suspicious of the digging, contacted the Kentucky State Police, who stopped the operation. Inspecting the property, police found human remains strewn everywhere. Aerial views of the bulldozed site, which aired on national television, showed a pockmarked landscape that, according to many observers, resembled a World War I battlefield.

In their quest for wealth, the men had pushed aside centuries of a people's history - their tools, potsherds, hearths, and houses - while leaving modem debris, including soda and beer cans, among the artifacts. In particular, the men had disturbed or destroyed hundreds of graves.(1)

Residents were understandably upset, not only by the desecration of the graves but also by the inability of Kentucky law to cope with the damage and theft. Because the men had crossed state lines with their bounty, they faced felony charges stemming from the interstate commerce provision of the Archeological Resources Protection Act (ARPA), a federal law. However, under state law, the men could be charged only with "desecration of a venerated object," a misdemeanor. Outraged Kentuckians demanded an amendment to the law; members of the state legislature responded by voting unanimously to criminalize grave desecration as a felony.

Looters illegally obtain artifacts or antiquities whereas relic hunters obtain them legally but unscientifically. They both span the spectrum of socioeconomic background, education, and upbringing. In some places, looting has become an accepted, multigenerational activity, a part of the local culture. In other cases, hobbyists, ignorant of the law, trespass and loot wherever they choose, even in national parks. Whatever their motivations and methods, these people are stealing a part of history. And, unfortunately, they often get away with it.

THE SCOPE OF THE PROBLEM

An archeologist who serves as a consultant to police investigating archeological theft estimates that over half of the 6,000 recorded sites on national forest lands in Arizona have been destroyed by looters. In southwest Virginia, 95 percent of all Native American graves have been destroyed or severely disturbed by "headhunters," the local term for looters.(2) Three recent developments have fueled an increase in looting - the public's fascination with the past, a growing interest in collecting, and the rapidly escalating value of the artifacts.

Over the last 30 years, interest in popular history has soared. Local history has become a do-it-yourself industry. People untrained in academic history plod through local records to construct their genealogies. Seeking links to a fading past, but not necessarily their own, they collect everything from rock albums and memorabilia to salt and pepper shakers and Victorian mourning jewelry, creating a multimillion dollar market for objects variously described as historic, antique, or merely nostalgic.

Indeed, relic hunting has been, and continues to be, a vigorously pursued pastime for some and a commercial enterprise for others. Looters live by the motto, "If it's old, it can be sold."(3) They have cut up and sold Inuit (Eskimo) totem poles. They have stolen old tombstones from cemeteries and used them as lawn ornaments. They even have stolen and sold human remains.

The high prices some artifacts bring on the commercial market confirm their value and inevitably invite criminality. Civil War belt buckles fetch over $10,000 each; a Native American pot from the Southwest sells for $400,000. German and Japanese collectors alone buy approximately $20 million worth of Native American artifacts yearly.(4)

In many countries, antiquities have provided an alternate economy. Civil wars in Asia and Europe leave plundered museums in their wake, either through deliberate destruction or merely as casualties of war. Many of the pillaged art treasures enter the international art market, where other museums may purchase them, sometimes unwittingly, sometimes knowingly.(5) Competition for artifacts has become so fierce that armed looters have assaulted and shot at archaeologists performing scientific work in Central and South America.

APPLICABLE LAWS

The role of law enforcers has expanded recently; enforcement of laws relating to the preservation of history has become a key responsibility in some jurisdictions. These agencies have realized that law enforcement, in addition to protecting life and property, must preserve the past as well.

While federal law has prohibited looting from federal or Native American properties since the beginning of the 20th century, enforcement of those laws rarely occurred until about 20 years ago. The Archeological Resources Protection Act, which became law in 1979, was strengthened in 1988, mainly to overcome obstacles encountered during prosecutions. A general-intent law, ARPA prohibits people from excavating, damaging, defacing, altering, or removing archeological resources (or attempting these acts) from public or Native American lands without a permit.(6)

To be protected resources under ARPA, looted objects must constitute evidence of past human existence, possess archeological interest (not necessarily significance), and be over 100 years old. Objects, or resources, are defined broadly to include not only such relics as pottery, tools, and shipwrecks but also rock art, skeletal remains, features of houses or other construction, and 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, or transport resources (or offer to do the same) in violation of ARPA, any other federal law, or any state or local law. Thus, looters who dig up Native American relics on private property without permission and traffic those relics across state lines violate ARPA.

The 1988 amendments to ARPA included a felony threshold of $500. If the cost to repair a damaged resource plus either the commercial value of the stolen artifacts or the archeological value (usually measured as the cost of retrieving archeological information from the site through scientific investigation) exceeds $500, then the crime is a felony. Under this definition of value, then, most ARPA cases are felony investigations. The law also prohibits attempts to destroy, damage, or remove protected resources, so that officers do not have to idly stand by and watch while looters destroy those resources.(7)

As a result of over a decade of prosecutions, ARPA "is well ensconced in the legal landscape."(8) Indeed, formidable and inventive challenges to ARPA in the courts have affirmed the law's utility and effectiveness. In the late 1980s, for example, Bradley Owen Austin was convicted for looting in the Deschutes National Forest in Oregon. He challenged the constitutionality of ARPA, claiming vagueness, and also argued that he had the right to hunt relics to further his education. The court ruled against him, reinforcing the notion that public lands are held in the public trust. Another more recent case affirmed ARPA's jurisdiction over interstate trafficking in antiquities stolen in violation of state law.

ARPA contains other features that make it attractive to law enforcement. In addition to calling for criminal penalties, ARPA permits civil recourse through an administrative law judge. Also, relic hunters convicted under ARPA forfeit their assets, including vehicles, equipment or tools, contraband, and clothing.

The other significant federal law that protects past resources is the Native American Graves Protection and Repatriation Act (NAGPRA). Important for museums, NAGPRA mandates that holdings of Native American human remains be inventoried and surveyed. In some cases, skeletons have been returned to Native American descendants for reburial according to tribal custom.

The law also prohibits trafficking in Native American human remains or any cultural items. After becoming law in 1991, NAGPRA's first prosecution and conviction occurred a few years later in Virginia, where a federal government employee took illegally obtained Cheyenne bones from the Custer Battlefield in Montana and sold them to an undercover officer in Virginia.(9)

LOOTING METHODS AND INVESTIGATIVE COUNTERMEASURES

The nature of looting presents enforcement difficulties. Once unearthed, artifacts are difficult to link to a looted site. Many protected resources, whether above or underground, are hidden from public view, some within thousands of acres of national forests or parks, where one officer may patrol millions of square acres. As a result, much looting goes undetected and unpunished.

Professional looters take steps 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 vehicle, or foot.

Looters observe law enforcement patrol behavior and may approach sites only when law enforcement presence is low or hampered, for example, at night (using the full moon to illuminate digging), during inclement weather, or on holidays. To further avoid detection, looters may post lookouts, use watchdogs, or employ radio scanners to track law enforcers. Some looters carry false identification or forged permits. Law enforcement officers have even caught looters wearing fake park ranger uniforms.

Not all looters develop such elaborate schemes to avoid detection. Many simply wear camouflage clothes and disguise their equipment by painting shovels or metal detectors black. The more sophisticated looters carry sifting screens and probing rods that locate graves or artifacts by detecting changes in soil density. Near or on the looted site, the thief may store tools, supplies, or unearthed artifacts for later retrieval.

Once looters find artifacts, they may sell the items directly, through a dealer, or through a broker who serves only a few clients. During Project Sting, agents from the National Park Service offered artifacts allegedly looted from federal property to lure a real estate businessman. The arresting investigator had first identified the suspect at a relic show. At these legal events, looters may sell legally obtained items aboveboard, while surreptitiously arranging illicit deals under the table. By comparison, hobbyists ignorant of the law may openly try to sell illegally obtained artifacts.

Relic shows can assist law enforcement officers in many ways. The shows can provide law enforcement officers with investigative leads needed to pursue undercover operations. Officers also can use these shows to enlist assistance from legitimate traders who want to keep their own reputations unblemished. Officers even may be able to catch looters in the act as they attempt to obtain merchandise for upcoming relic shows.

While the best enforcement opportunity obviously involves catching looters in the act, officers also may cultivate local informants or obtain confessions from the looters themselves. Informants - nearby farmers, campers, or hikers who may witness looting - can provide crucial intelligence.

As for the looters, anyone on or near public property at odd hours becomes a candidate for further investigation. In addition, if officers discover fresh digging or site damage, they may be able to locate a suspect close by and conduct a surveillance to obtain additional information.

No law enforcement officer can afford to devote dozens of hours to tracking looters. Fortunately, officers are most likely to encounter offenses when pursuing other violations.

In one case, officers executing a search warrant at a residence photographed a collection of Native American relics later described as "the most impressive collection of Indian artifacts in northern California."(10) A sheriff's deputy who had been an archeologist saw the photographs, recognized the significance of the relics, and after developing additional intelligence, served another warrant at the same property, this time for ARPA violations. As it turns out, the suspect previously had been convicted under ARPA and had hidden the artifacts in order to prevent their seizure by federal authorities.

As another example, officers might stop the driver of a pick-up truck on suspicion of driving under the influence. If officers notice that the truck bed contains cardboard boxes of what appears to be freshly dug relics or human remains, along with dirt-encased shovels, they should investigate further.

Officers must be able to identify and describe the tools and equipment used by looters. Many tools and the camouflage clothing that some looters wear are innocuous by themselves, but taken in context create a suspicion of criminality.(11)

It is important that law enforcement officers not presume that looters, by virtue of the kind of crime they commit, are benign hobbyists. Some looters arm themselves and may fire at officers. In any event, officers encountering looters should take precautions for their own safety.

Although looting cases involve some unique procedures, officers should process a looting scene much as they would any other crime scene. First, they must document, measure, and photograph the scene carefully.

Second, they should collect soil samples. For most other crimes, soil reveals little about the crime. However, in looting cases, soil becomes important evidence. A laboratory analysis might reveal pieces of pottery or bone or even pollen that match the evidence to the crime scene and perhaps to individual suspects if dirt is found on their confiscated clothing.

Third, officers should take casts of footprints and impressions of shovels. Coupled with the soil, this evidence can link suspects and artifacts to a particular site.

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. Finally, federal cases require that an archeologist provide a damage assessment - including an exact description of what has been lost, recovered, damaged, or displaced - and determine the costs significant to ARPA.

FEDERAL, STATE, AND LOCAL COOPERATION

Despite federal successes, antilooting efforts at the state and local level have been irregular. State laws protecting historic or archeological resources vary and sometimes do not parallel the ARPA. Nevertheless, many state initiatives show promise. Investigative and prosecutorial efforts have displayed creativity and ingenuity in both sting operations and innovative applications of the law.

In 1993, Florida applied its own Racketeer Influenced and Corrupt Organizations Act to obtain guilty pleas for conspiracy from four men for destructive relic hunting at both state-owned and federally owned parks. Using bulldozers and backhoes, the men had destroyed thousands of cubic yards of historic materials.(12) In Indiana, the state supreme court affirmed a lower court decision that applied the state's archeological protection law to private property.(13)

In Virginia, most historic or archeological protection laws have specific applications that do not not always compare to federal interests. Virginia protects human burials wherever they are found, on pain of a felony penalty. Misdemeanor penalties attach to other heritage laws.

There is one difference between Virginia's law and the ARPA that has important implications for law enforcement. In Virginia, archaeologists are not required to help investigate crimes. Still, without an archeologist's assistance, an officer would find it difficult to process a crime scene or present a case for prosecution. This is because an archeologist's expertise usually is needed to describe what was disturbed, vandalized, or recovered and to place a monetary value on the damage to the site and the recovered artifacts. For this reason, the state trains officers to contact archaeologists to help conduct investigations, and a number of professional archaeologists have volunteered to assist law enforcement officers with investigations and to testify in court.

TRAINING INITIATIVES

Under its Archeological Resources Protection Program, the Federal Law Enforcement Training Center provides a 1-week training program for federal law enforcement officers and prosecutors. This comprehensive program reviews applicable laws, teaches investigative and crime scene techniques, includes a field trip to an archeological site, and tests participants with a practical scenario.

Some states have developed their own training initiatives as well. In Florida, a new law mandates a 2-hour curriculum on archeological resource protection for basic law enforcement academy classes. In Virginia, the Department of Historic Resources and the Department of Criminal Justice Services created a policy on the theft of historic resources. An accompanying training program acquaints law enforcement officers with the looting problem, reviews applicable state and federal laws, and outlines an investigative protocol, modeled closely on federal procedures and honed through prosecutions.

While law enforcement officers need training, the public also must be educated. In many places, looting serves people's hobbies or supplements their incomes. In Arizona, for example, looting has become so firmly entrenched in the culture that in order to present their case in court, two Arizona attorneys first had to justify why looting is a crime.

CONCLUSION

"Like words plucked from the middle of a sentence,"(14) artifacts stolen from their resting places leave a question mark in the timeline of history. But with the appropriate tools, training, and support, law enforcement officers can help preserve the past.

Endnotes

1 Harvey Arden, "Who Owns Our Past?" National Geographic 175(3) (1989): 376-393; Also, see Brian Fagan, "Black Day at Slack Farm," Archaeology 41(4) (1988): 15-16, 73.

2 Thomas Klatka, archeologist, Virginia Department of Historic Resources, interview by author, October 12, 1995.

3 Tom Dunkel, "A Nation's Heritage at Risk," Insight, February 17, 1992, 14.

4 The theft of and trafficking in antiquities and their market values has been documented widely. See Dunkel, Insight; Daryl F. Gates and William E. Martin, "Art Theft - A Need for Specialization," Police Chief, March 1990, 60-62; Barbara Hoffman, "The Spoils of War," Archaeology 46(6) (1993): 37-40.

5 See Stephenie Slahor, "Society to Prevent Trade in Stolen Art," Law and Order, October 1996, 181-2.

6 ARPA is defined under 16 U.S.C. Section 470aa-47011. For a legislative history of the law and its current application, see Sherry Hutt, Elwood W. Jones, and Martin E. McAllister, Archeological Resource Protection (Washington, DC: The Preservation Press, 1992).

7 ARPA was carefully drawn to exclude hobbyists or collectors. Surface finds of arrowheads or coins, for example, from protected federal or Indian lands are allowable without a permit. However, taking such items may constitute theft of government property.

8 Sherry Hutt, "The Archaeological Resources Protection Act," The Federal Lawyer, October 1995, 34.

9 United States v. Maniscalco, No. CR-94-1139-M (E.D. Virginia March 21, 1995). The defendant was also charged with violating the ARPA.

10 Quoted in Common Ground, 1(1), 1996, p. 8.

11 See Charles R. Swanson, Neil C. Chamelin, and Leonard Territo, Criminal Investigation, 5th ed. (New York: McGraw-Hill, 1992), 67.

12 Reported in Federal Archaeology, 7(2), summer 1994, 11.

13 Indiana's Historic Preservation and Archeology Act prevailed in Whitacre v. State, 619 N.E.2d 605 (Ind. App. 1993), aff'd, 629 N.E.2d (1994), where the state required a man to obtain a permit to dig Indian relics on his own property.

14 Supra note 3, 36.

RELATED ARTICLE: Project Sting

An archeologist and three agents, all from the National Park Service, arrived at a motel in San Antonio, Texas, to conduct a sting. With confiscated stolen artifacts on loan, including Mexican clay figurines, part of a flute, and yucca-fiber sandals, the team set up a surveillance post with microphones, radio receivers, and a tape recorder. One agent, posing as a convicted felon and relic dealer, had arranged an appointment with a real estate agent, a part-time relic trader willing to do business illegally. The two had met previously at a relic show in Kentucky.

The suspect arrived at the motel, inspected the artifacts, and against an asking price of $1,500, finally agreed to pay $400. With the exchange of $100 in cash and a $300 IOU, the awaited criminal transaction occurred, and the enforcement officers entered the room. After questioning him for several hours, the officers released him, threatening him with indictment on federal charges. But, more important, the officers offered reduced charges in exchange for the names of the suspect's business associates. By doing so in this case and others like it, the members of this temporary task force succeeded in sending a strong message to other looters and dealers that law enforcement is watching.

Source: John Neary, "Project Sting," Archaeology, 46(5), Sept/Oct 1993.

Mr. Hicks is a law enforcement specialist in the law enforcement section of the Commonwealth of Virginia's Department of Criminal Services in Richmond.

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