Important Laws

The laws listed below compile the federal and state laws for the southwest region included in the Learning Center of the American Southwest Archeology pages.  The laws are listed as federal statutes or by Southwest state.

Federal Laws

Abandoned Shipwreck Act – (43 U.S.C. 2101-2106):  An Act passed in 1987 allowing the U.S. Government to assert ownership over abandoned shipwrecks on federal submerged lands, embedded in coral formations on submerged lands protected by federal agencies, and abandoned shipwrecks located on federal submerged lands and eligible for the National Register of Historic Places.  As part of the Act, the National Park Service was directed to prepare guidelines for future regulations directed at preservation, management, and mitigation between interested parties. View pdf download.

Antiquities Act – (34 Stat. 225, 16 U.S.C. 431-433):  The American Antiquities Act (officially An Act for the Preservation of American Antiquities) of 1906 was the first federal law protecting archeological materials from looting, making collection from Federal and Indian lands illegal and punishable by both jail time and fines.  The main provisions of the act a) prohibit excavation, collection, and/or damage to archeological sites on federal land with a permit; b) stipulate that permits are to be given only to qualified professionals for the purposes of increasing knowledge; c) stipulate that collections made on federal lands are to be housed in public museums; and d) provides for the designation of national monuments on federal lands to protect areas of historic and scientific interest. View pdf download.

Archaeological and Historic Preservation Act (AHPA) – (16 U.S.C. 469-469c-2): The AHPA of 1974 updated the Reservoir Salvage Act of 1960, which required the preservation of historic and archeological data in danger because of dam construction, to include all historic and archeological data threatened by any federally guided or assisted activity. View pdf download.

Archaeological Resource Protection Act (ARPA) – (16 U.S.C. 470aa-mm):  ARPA was passed in 1979 to bolster the protection of archeological sites and to better regulate excavations on federal and Indian lands.  The main provisions of the act state: a) permits are to be issued to qualified archeologists; if on Indian lands or for a Native American site, consultation with tribes is required;  b) unauthorized excavation of archeological sites on federal lands is not only illegal but also a felony-level crime if damages are determined at a worth of $500.00 or more; c) buying, selling, and/or transporting illegally obtained artifacts is a federal crime; and d) materials collected under an ARPA permit all associated records must be curated at a museum or other approved repository. View pdf download. 

National Historic Preservation Act (NHPA) – (16 U.S.C. 470 et seq): NHPA was enacted in 1966, and is considered one of, if not the most important national preservation laws regarding archeological resources.  The NHPA created the National Register of Historic Places (NRHP),  established State and Tribal Historic Preservation Offices (SHPOs and THPOs respectively), and defined the criteria for determining the significance of archeological materials.  Sections 101, 106, and 110 relate directly to historic properties, including archeological sites.  View pdf download.

Section 101: Established the National Register of Historic Places (NRHP), the purpose of which is to maintain a list of historical (archeological) properties determines to be of significance to American history and prehistory.  Section 101 also established the Advisory Council on Historic Preservation, which oversees Section 106 compliance efforts.  Finally, Section 101 requires each state to have a State Historic Preservation Office (SHPO) responsible for historic preservation efforts within the state.

Section 106: Requires federal agencies to account for the effects of federal projects on significant historic properties, including archeological resources.  Section 106 drives much of modern archeology in the U.S., providing the legal need for archeological investigations, as well as much of the necessary funding.  An important part of the Section 106 process includes consultation with interested parties, including Native Americans and local communities, to identify and resolve potential conflicts.  Significance criteria established by Section 106 requires association with an historic event, association with an important person, representation of a distinctive design; and/or the potential to provide important information about prehistory or history for designation of a site as significant and eligible to the NRHP.

Section 110: Requires federal agencies to establish historic preservation programs and manage historic properties on federal lands, in addition to complying with Section 106.

National Environmental Policy Act (NEPA): NEPA became law in 1970, and requires federal agencies to consider the environmental impacts and possible alternatives of proposed projects.  Archeological and historical resources are regarded as elements of the environment, and as such are included in the NEPA evaluation process.

Native American Graves Protection and Repatriation Act (NAGPRA) – (34 CFR 10; 25 U.S.C. 3001 et seq):  NAGPRA is a legislative act passed in 1990 and since amended, devised to protect and repatriate Native American burial sites, human remains, and artifacts either associated with burials, sacred, or of cultural patrimony.  NAGPRA requires federal agencies and museums to provide information of relevance to the materials listed above to interested parties, and upon presentation of a valid claim, ensure repatriation of the materials.  The primary of provisions of NAGPRA are to a) establish priority of ownership of human remains and cultural items based on lineal descent, cultural affiliation, and aboriginal and modern occupation of the lands where the discovery occurred; b) establish procedures for inadvertent discoveries and permitted excavations of materials covered under the Act; c) prohibit the buying and selling of Native American human remains and cultural items; d) require curation facilities to inventory collections and repatriation materials in which ownership/cultural affiliation is established; and e) provide for a review committee responsible for monitoring inventory activities and resolving disputes.  View pdf download

The official NAGPRA website is located at http://www.nps.gov/history/nagpra/INDEX.HTM.

 

State Laws and Regulations

Arizona

Arizona state laws are covered in the Arizona Revised Statutes, Title 41.  Title 41 laws related to archeological materials include ARS 41-841 through ARS 41-844, and ARS 41-865 of the Arizona Antiquities Act.  Each of these laws is discussed below.  Note: The laws outlined below apply to both archeological and paleontological materials; however, only their application to archeological materials is included.

ARS 41-841:  Prohibits excavation and/or collection of archeological materials from state owned or managed lands without a permit issued by the State.

ARS 41-842:  Regulates exploration of State lands; provides for explorations for scientific, research, or land use planning purposes by qualified individuals and institutions; and requires a permit issued by the State.

ARS 41-843:  Prohibits defacing of archeological sites and objects.

ARS 41-844:  Requires that all discoveries of archeological materials on State lands be promptly reported to the director of Arizona State Museum (ASM), and provides the required procedures for disposition of the discovered materials.

ARS 41-865:  Prohibits the intentional disturbance of human remains or funerary objects on State lands without the written permission of the director of Arizona State Museum (ASM), and outlines the procedures for unintentional discovery/disturbance of human remains or funerary objects on State lands.

 

Colorado

Colorado state archeological laws are included in codebook Colorado Revised Statutes.

18-4-509:  Prohibits vandalism of historical monuments.

Colorado’s Historical, Prehistorical, and Archaeological Resources Act:  Enacted in 1973, this act created the office of the state archeologist and established rules and regulates for the enforcement of the act (Part 4).  In 1990, Part 4 was amended, and a new statutory section (Part 13) pertaining to unmarked human remains was added to the Act. View pdf download.

24-80, Part 4 (4-401, 24-80-403 – 24-80-411):  Names the state as owner, and therefore responsible party, of cultural resources on terrestrial and/or submerged state lands.  Part 4 (24-80) also establishes the office of state archeologist within the Colorado Historical Society for the purpose of coordinating preservation activities for State archeological resources (24-80-403 – 24-80-405).  In addition, 24-80, Part 4 (24-80-406) requires a permit for investigation or excavation of cultural resources from state lands.  24-50-409 declares violation of 24-80-406 a criminal offense, and provides for restraining orders, jail time, and fines.  Finally, 24-80-411 allows for the coverage of human remains under Part 4 of 24-80, unless in conflict with Part 13 (24-80); if in conflict with Part 13, Part 13 takes precedence. View pdf download.

24-80, Part 13 (24-80-1302 24-80-1303, and 24-80-1305):  24-80-1302 requires notification of state authorities, beginning with the county coroner, in the event of the discovery of human remains outside a permitted archeological investigation and provides guidelines for the identification, disinterment, and curation of said remains.  24-80-1303 provides guidelines for the discovery of human remains during an anthropological investigation, requiring notification of state authorities (excepting the coroner if the remains are older than 100 years) and treatment of the remains in accordance with 24-80-1302.  Finally, 24-80-1305 declares that the intentional disturbance of unmarked human remains, or unreported knowledge of such an act, is a criminal act punishable by jail time and/or fines.

 

Kansas

Kansas state archeological laws are contained in the codebook Kansas Statutes.

Kansas Antiquities Act (KSA 74-5401 – KSA-74-5409):  Enacted in 1967, this statute established a Commission to protect and regulate the removal of archeological resources from state, county, and municipal lands; prohibits the uncontrolled excavation and/or vandalism of archeological sites on state, county, or municipal lands; and requires a permit for scientific investigations of archeological resources on the same lands.

75-2724:  This statute provides the procedure for determining threats to historic properties on state land, prohibiting encroachment upon, damage, or destruction of cultural resources without appropriate mitigation activities prior to the undertaking.

75-2735:  Authorizes the state, county, or municipality to take legal action to protect historic properties.

Unmarked Burial Sites Preservation Act (KSA 75-2741 – KSA 75-2754): The state law protecting unmarked burials.  Enacted in 1989, the Act established the Unmarked Burial Sites Preservation Board and charged the board with developing procedures for protection and treatment of individual unmarked burials.  The Act prohibits unauthorized disturbance of unmarked burial sites on all lands within the state; requires that each unmarked burial site be entered into the site registry; requires permits for the scientific study of unmarked burials; and provides for civil and criminal penalties for violation of any part of the Act.

 

New Mexico

New Mexico state archeological laws are contained in the codebook New Mexico Statutes 1978.

Cultural Properties Protection Act (18-6A-1 – 18-6A-6):  New Mexico’s Cultural Properties Protection Act encourages state agencies to collaborate with the Historic Preservation Division to develop preservation and protect programs for cultural properties, and establishes the Cultural Properties Restoration Fund to provide grants for interpretation, preservation, restoration/stabilization, and protection of cultural properties on state lands or facilities. View pdf download.

Cultural Properties Act (18-6-1 – 8-6-23):  The New Mexico Cultural Properties Act was originally enacted in 1969 and has since been amended.  The Act established the central principles of preservation in New Mexico, created the Historic Preservation Division, the Cultural Properties Review Committee, the Historic Preservation Publications fund, and the Historic Preservation Loan fund.  The Act also protects unmarked human burials, requiring a permit for their investigation or excavation.  In addition, the Act established civil and criminal penalties, including second-degree felony larceny, for looting of archeological sites and unauthorized disturbance of unmarked human burials. 

Prehistoric and Historic Sites Preservation Act (18-8-1 – 18-8-8):  Enacted in 1989, this Act prohibits the use of state funds for projects adversely affecting sites in the State and/or National Registers unless properly mitigated.

30-15-5 and 30-15-6:  Declares vandalism of cultural resources on federal, state, and/or private land without the landowner’s permission a misdemeanor.

 

Oklahoma

Oklahoma state archeological laws are contained in the codebook Oklahoma Statutes.

Burial Desecration Law (Title 21 §1168.1 – 1168.7):  Passed in 1987, this law extends protection to human remains and associated objects in unmarked graves on both state and private lands.  Section 1168.1 declares buying, selling, or exchange of human skeletal material and/or associated objects for profit a felony offense.  Section 1168.2 requires consultation by institutions, museums, and other curation facilities with tribal leaders and/or state entities prior to the disposition of human remains and/or associated objects.  Section 1138.3 declares intentional display of human remains and/or associated objects or sites a misdemeanor offense, with each day of continued violation a separate offense.  Section 1168.4 requires immediate cessation of activities and prompts reporting in the event of the discovery of human remains and/or associated objects.  Statute 21-1168.4 declares failure to report a misdemeanor, and intentional unauthorized disturbance of human remains, associated materials, or a potential burial ground a felony.  Section 1168.5 authorizes state authorities to designate a repository for curation of human remains and/or associated objects when repatriation is not possible.  Section 11.68.6 outlines the penalties for violation of any part of Title 21-1168, and Section 1168.7 requires that all discoveries of human remains and/or associated objects by federal and state agencies be reported immediately and that all associated activities cease until mitigation and satisfactory disposition of the remains is complete.

Title 53 §2.1:  Prohibits vandalism of historic and prehistoric sites and objects, classing a violation as a misdemeanor offence punishable by fine and/or jail time.

Oklahoma Antiquities Law (Title 53 §361):  Passed in 1985, the Oklahoma Antiquities law aims to protect archeological sites on state-owned land.  The Law requires a permit for all archeological investigations and/or excavations on state lands; and upon termination of the permit, requires the donation of all collections made on state lands to a recognized repository of the state.  This statute also allows for fees related to permitting and curation.  In addition, Section 361 prohibits sale or purchase of archeological materials acquired in violation of this same act, and declares vandalism to any and all archeological resources, monuments, markers, etc. unlawful.  The Act also discouraged excavation of archeological materials on private lands, except when in keeping with the Oklahoma State Register of Historic Places Act.

 

Texas

Texas state laws dealing with archeology are covered in codebook Texas Natural Resources Code.

Antiquities Code of Texas (191.051-191.174):  The purpose of the Antiquities Code of Texas is to protect historic buildings and archeological sites on terrestrial and submerged public lands.  The Code provides the state ownership, and therefore responsibility of protection and preservation of the historical and archeological resources of Texas. The Code requires state-issued permits for investigation and/or excavation of cultural resources on state-lands; provides for the designation and protection of state landmarks; prohibits damage and/destruction of cultural resources without proper mitigation; and provides for civil and criminal penalties for individuals in violation of the Code.  View pdf download.

 

Utah

Utah archeology-related laws are covered in the Utah Administrative Code of the Utah Division of State history and in Utah’s State Legislative Codes.

Ancient Human Remains (R212-4):  The primary purpose of R212-4 is to assure the respectful, lawful, and scientifically sound treatment of ancient human remains.  R212-4 follows the statutes of 9-8-309, the portion of the Utah State Antiquities Act dealing with human remains.

State Register (R212-6): The purpose of R212-6 is to establish compatibility between the State and National Register for historic resources, archeological sites, and paleontological localities.  R212-6 follows the federal law 36 CFR 60.4, the regulations for the federal National Register. 

Utah’s State Antiquities Act (9-8-301 – 9-8-309):  The purpose of the Utah State Antiquities Act, as outlined in 9-8-301 includes the preservation, mitigation, and enforcement of regulations regarding antiquities in Utah, as defined in 9-8-302.  The Act (9-8-304) created the Antiquities Section of the Utah Division of State History to be the authority of the state for the protection and management of archeological resources, and to enforce state and federal antiquities laws; required a permit for archeological investigations on state lands (9-8-305);  provided for the nomination, determination and protection of archeological and anthropological landmarks (9-8-306); and required the prompt reporting of discoveries of archeological materials on state lands (9-8-307).  The Act also prohibits the forgery or false labeling of archeological specimens (9-8-308).  The final section of the Act 9-8-309 regulates the discovery and disposition of human remains on nonfederal, non-state lands.  9-8-309 requires notification of the discovery to local law enforcement, cessation of all activities resulting in the discovery, notification of the Antiquities Section, and provides guidelines for excavation, collection, curation, and repatriation of remains.

Utah’s Native American Grave Protection and Repatriation Act (9-9-401 – 9-9-406):  Utah’s Native American Grave Protection and Repatriation Act (NAGPRA) is the state version of the federal NAGPRA, which provides protection for Native American burials and associated materials, as defined in 9-9-402; establish priority of ownership of human remains and cultural items based on lineal descent, cultural affiliation, and aboriginal and modern occupation of the lands where the discovery occurred (9-9-403); prohibits illegal trafficking of Native American remains (9-9-404); and provides for the creation of a review committee (9-9-405).

Protection of Human Remains (76-9-704): Prohibits the abuse or desecration of a dead human body in any stage of decomposition, including ancient human remains, as well as failure to report discovery of human remains.  As a criminal offense, guilt under 76-9-704 ranges from misdemeanor to third degree felony.

Utah’s Archaeological Vandalism Statutes (76-6-901 – 7-6-903):  Utah’s vandalism laws prohibit the vandalism of antiquities, as defined in 76-6-901, on Utah state lands or private lands without the permission of the land owner.  In addition, the statutes (76-6-902) prohibit the sale or exchange of antiquities or reproductions and the production of copies, reproductions, and/or forgeries of antiquities.  Penalties for violation of Utah’s Archaeological Vandalism statutes include civil and criminal charges 76-6-903.