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-
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(1) archaeological resources on public lands and Indian lands are
an accessible and
irreplaceable part of the Nation's heritage;
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(2) these resources are increasingly endangered because of their
commercial
attractiveness;
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(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
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(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
information 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
Arct 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 -
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(i) the national park system,
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(ii) the national wildlife refuge system, or
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(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
shall be required, under
uniform regulations under this Act, to contain such information as the
Federal land manager
deems necessary, includgin 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-
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(1) the applicant is qualified, to carry out the permitted
activity,
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(2) the activity is undertaken for the purpose of furthering
archaeological
knowledge in the public interest,
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(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
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(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 rsult 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 hte permittee's
conviction under section 6. )
(g)
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(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.
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(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)
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(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.
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(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) Issuance 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-
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(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
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(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
rsources 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-
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(1) the prohibition contained in subsection (a), or
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(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
secavated, removed, sold, purchased, exchanged, transported, or received
in violati on 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 imprison ed
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 su ch
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-
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(A) the archaeological or commercial value of the
archaeological resource
involved, and
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(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.
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(2) If any person fails to pay an assessment of a civil penalty-
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(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
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(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.
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(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 attendance 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-
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(1) such person's conviction of such violation under section
6,
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(2) assessment of a civil penalty against such person under
section 7 with
respect to such violation, or
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(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-
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(1) further the purposes of this Act or the Act of June 27,
1960 (16
U.S.C. 469-469c), and
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(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 subsectoin (a), upon the written
request of the Governor
of any State, which request shall state-
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(1) the specific site or area for which information is sought,
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(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.
NAGPRA federal law: PUBLIC LAW 101-601--NOV. 16, 1990
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