Robert H. McLaughlin
Signed into law by President Theodore Roosevelt, the Antiquities Act of 1906 (P.L. 59-209, 34 Stat. 225) became the first major federal legislation to govern archaeology in the United States. The act prohibits the removal of antiquities from federal lands without first obtaining a permit for scientific investigation. It authorizes federal courts to impose a fine of up to $500 and imprisonment of up to ninety days against any person convicted of violating the criminal provision of the act.
The act also established a regulatory process through which the federal government could identify sites on its lands, administer permits for archaeological fieldwork and excavations, record findings, establish collections of artifacts, and designate archaeological sites as national monuments. The Antiquities Act authorizes the president to declare historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest located on federal lands as national monuments. Under the act, permits may be "granted by the Secretaries of the Interior, Agriculture, and Army to institutions which they may deem properly qualified to conduct such examination, excavation, or gathering, subject to such rules and regulations as they may prescribe."
The Departments of the Interior and Agriculture and the Army jointly adopted regulations delegating review of permit applications to the Smithsonian Institution. The Smithsonian would review permit applications for recommendation and become a repository for duplicate copies of all field reports, photographs, and catalogues of collections made during each season of archaeological fieldwork. Between 1906 and 1981, the Smithsonian did indeed review applications to conduct scientific investigations on federal lands, maintaining an archive in the Bureau of American Ethnology, now reorganized as the National Anthropological Archives.
The Antiquities Act of 1906 resulted from a combination of interests. Politicians wanted to preserve prehistory as a form of national heritage; anthropologists and archaeologists were interested in Native American societies, past and present; and cultural institutions sought to gather material collections of interest and value to the public. Politicians recognized an international trend toward the preservation of archaeological sites, in particular Britain's Ancient Monuments Act (1882) and Mexico's Law of Archaeological Monuments (1897). However, they struggled with the issue of enforcement over the vast federal land holdings in western states. Anthropologists debated the regulatory process, discussing whether the Smithsonian or, as the anthropologist Franz Boas proposed, a rotating group of recognized experts should be in charge. Meanwhile, popular interest in archaeology fueled an international antiquities market in which demand far exceeded the supplies of art and curio dealers, traders, tourists, museums, and thieves.
EXPERIENCE UNDER THE ACT
Although the regulatory components of the Antiquities Act took shape quickly, the criminal provision remained untested for decades. Illegal trafficking in antiquities continued and even escalated. Finally, the government brought charges and won a conviction against a man for the illegal removal and trafficking of face masks found in a cave located in the San Carlos Indian Reservation. On appeal, however, the United States Court of Appeals for the Ninth Circuit reversed the district court conviction. In United States v. Diaz (1974), the appeals court noted that the face masks were of recent crafting and found the definition of the term "antiquities" unconstitutionally vague in the statute. Although a subsequent case heard before the Tenth Circuit (United States v. Symer ) resulted in a criminal conviction being upheld, the Supreme Court declined to hear a further appeal of that case. Thus, the validity of the criminal provision of the Antiquities Act has remained uncertain.
The Antiquities Act did, however, contribute to a major shift in knowledge and popular thinking. Excavations performed with Antiquities Act permits led to the discovery of data that demonstrated, contrary to popular belief at the turn of the twentieth century, that the archaeological sites and material culture of North American prehistory are not the ruins of "lost civilizations." Rather, these excavations, often performed under the supervision of the Bureau of American Ethnology, show that a great many sites and their contents relate historically and culturally to contemporary Native American peoples. This knowledge provides no excuse for the absence of Native American voices in the legislative record on which Congress passed the Antiquities Act of 1906. However, it provides the foundation for subsequent federal laws and regulations that build on and supercede the Antiquities Act.
For example, the regulatory process prescribed in the Archaeological Resource Protection Act of 1979 (ARPA) to issue permits for scientific investigations incorporates Native American interests among its criteria. The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) similarly calls for collaboration and consultation among federally recognized tribes and museums in the identification of sacred objects, cultural patrimony (heritage), and human remains. Where a cultural affiliation is determined, the objects and human remains may be subject to return or repatriation to the Native American tribe. Antiquities Act permits and records often prove instrumental to Native American repatriation claims. Finally, many states have also adopted preservation, sacred sites, and antiquities trafficking laws that range from tax credits for the conservation of archaeological sites on private lands to criminal provisions similar to those of the Antiquities Act and that apply to state lands.
Lee, Robert F. The Antiquities Act of 1906. Washington, DC: Office of History and Historic Architecture, National Park Service, 1970.
McLaughlin, Robert H. "The Antiquities Act of 1906: Framing an American Anthropology and Archaeology," Oaklahoma City Law Review 23 (1998): 611.
The National Park Service. "Links to the Past." <http://www.cr.nps.gov>.
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