Archaeology Laws

Laws govern many aspects of our daily life, but have you ever stopped to think about what laws might relate to archaeology and archaeological sites? There is a lot of misconception about what parts of and how the past is protected. Here is a handy guide featuring some of the most common Federal laws and links to additional Federal, State, and local laws.


Antiquities Act

Enacted in 1906, it was first law to establish archaeological sites on public lands as important public resources. The Act grew out of concerns for the preservation of America’s archaeological sites, artifacts and information. It requires Federal agencies to preserve and protect the cultural values of the archaeological and historic sites and structures present on these lands. It also gives the President the authority to designate sites as National Monuments. The act also linked the archaeological excavation and research of sites with programs to provide public interpretation.


National Historic Preservation Act (NHPA) & Section 106

Enacted in 1966, with major amendments/additions in 1980 and 1992, the law contains a strong statement supporting historic preservation activities and programs. It outlines that historic preservation, including archaeology, is an activity that occurs at all levels of government, (Federal, State, and local), and also involves private organizations and individuals.This can make things complicated, but it also makes preservation an issue that must be considered on many levels.  With NHPA, preservation is to be considered a part of modern life in regards to contemporary development and economic activities. Although archaeological and historic properties must often be considered with development plans, their preservation is not always an assured outcome.

Section 106 of the NHPA, implemented in the mid 1970s, requires that all Federal agencies provide the Advisory Council on Historic Preservation an opportunity to comment on any undertaking for which an agency has direct or indirect jurisdiction when the undertaking has an effect on a historic property listed on or eligible for listing on the National Register of Historic Places. This means that agencies that are involved in Federal undertakings, are required to identify and assess archaeological or historical sites that their planned actions might affect.


Archaeological and Historical Preservation Act (AHPA)

Passed in law in 1974, this act requires Federal agencies to account for "...the preservation of historical and archaeological data (including relics and specimens) which might otherwise be irreparably lost or destroyed as the result of...any alteration of the terrain caused as a result of any Federal construction project of federally licensed activity or program (Section 1)." Similar to NHPA, this law expanded the number and range of Federal agencies that needed to take archaeological resources into account when executing, funding, or licensing projects. The AHPA gave Federal agencies the authorization to fund archaeological investigations, reports, and other activities that would reduce the impact their projects would have on important archaeological sites. The AHPA and Section 106 of the NHPA lead to an explosion of salvage archaeology known as Cultural Resource Management, or CRM.


Archaeological Resources Protection Act (ARPA)

Enacted in 1979 and designed to be an improvement on the Antiquities Act ARPA provides more effective law enforcement to protect public archaeological sites. A wide range of prohibited actions include damage or defacement, unpermitted excavation or removal, as well as selling, purchasing, and other artifact trafficking activities both within the United States and internationally. With ARPA penalties can include: first time felony offenders -fined up to $20,000 and imprisoned for up to one year; second time felony offenders - fined up to $100,000 and imprisoned for up to 5 years. These penalties allow authorities to help protect archaeological sites on public land and ensure they remain in place for future generations and investigations.


The Native American Graves Protection and Repatriation Act (NAGPRA)

Enacted in 1990, NAGPRA is designed to support the rights of Native American lineal descendants and tribes, and Native Hawaiian organizations with respect to the treatment, repatriation, and disposition of cultural items, which can include human remains, funerary objects, sacred objects, and objects of cultural patrimony.  In order to have a claim with NAGPRA, the Native group must be able to show a relationship of lineal descent or cultural affiliation. "Cultural affiliation" is defined as: “...a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian Tribe or Native Hawaiian organization and an identifiable earlier group” (Sec. 2(2)). This implies that groups of Native Americans of diverse backgrounds who voluntarily associate together are not viewed as proper claimants.

There are two main parts to this Act. The first requires Federal agencies and any museums receiving Federal funds to inventory and provide written summaries of holdings of Native American human remains and cultural items. The agencies and museums must then consult with Native American Tribes and Native Hawaiian organizations to attempt to reach agreements on the repatriation or other disposition of these remains and objects. Disposition can take forms ranging from from reburial to long term curation, but is up to the lineal descendent(s) or culturally affiliated Tribe(s).

Second, NAGPRA also requires that Native American tribes or Native Hawaiian organizations be consulted whenever archaeological excavations encounter (or are expected to encounter) Native American cultural items. Any continued excavation or removal of any such items also must be done under procedures the guidance of the tribe and in many cases is likely to require the in situ preservation of the site, or at least the portions that contain burials or cultural items.


Further Reading:

National Park Service - Archaeology Laws

Archaeology Institute of America - Understanding the U.S. Border: Archaeologists, Law Enforcement, and the Preservation of Cultural Heritage   

SC Department of Archives and History State Historic Preservation Office - Preservation Laws and Regulations

SC Department of Natural Resources Heritage Trust - Laws