Archaeological Ethics and Law

by William D. Lipe

Ethical and Professional Standards

The Crow Canyon Archaeological Center maintains high ethical and professional standards in its research and education programs. This helps ensure that the Center meets its responsibilities to the general public. It also helps maintain Crow Canyon’s reputation for excellence in archaeological research and education.

Ethical and professional standards have been developed in the field of archaeology during the last 100 years. The Society for American Archaeology (SAA) and the Register of Professional Archaeologists (RPA) publish guidelines and standards that are followed by the Crow Canyon Archaeological Center. Information about these organizations and their statements is provided below.

The Society for American Archaeology is the leading archaeological organization in North America. It has more than 7,000 members, including professional archaeologists, students, amateur archaeologists, and interested lay people. The SAA has published a set of general ethical principles for archaeologists, which may be found on its website.

The Register of Professional Archaeologists lists archaeologists who have met basic standards of professional education and experience. To become registered, an archaeologist must agree to follow the RPA Code of Conduct and Standards of Research Performance (see the RPA website). Registered Professional Archaeologists also must agree to appear before a grievance committee if someone lodges a credible complaint about their professional conduct.

Considering both the SAA and the RPA statements, the main points are as follows:

    • Archaeologists have a responsibility to promote stewardship of the archaeological record of the past. This record (sites, deposits, and artifacts and other materials that remain in or on the ground) is fragile, easily disturbed, and nonrenewable. The archaeological record can yield new information about the past if it is properly studied. However, the information content of the record can be lost if patterns of stratigraphy and artifact associations are disturbed without documentation.
    • Archaeologists must employ a conservation ethic in their work. That is, they should excavate only what is needed for their research. They should leave parts of sites intact for future archaeologists to investigate.
    • Archaeology is a public enterprise, in the sense that its main product is reports and publications that provide new information about the past. Archaeologists must use accepted scientific methods in the field and laboratory and must write reports on their findings in a timely manner. Their research records and artifacts must be deposited in museums or other institutions so they can be studied by others in the future. They must honor requests from other qualified archaeologists for data if these have not been published in a reasonable period of time.
    • Archaeologists have a responsibility to share their findings with the public. They can do this by working with schools, museums, media specialists, and educators. The Crow Canyon Archaeological Center was established to make it easier for archaeologists to share their research with students and the general public.
    • One of the main threats to archaeology is looting of artifacts for private collections or for sale. This results in loss of most of the information that could have been gained through controlled excavations. Looting also often results in desecration of graves and sites that are sacred to Native Americans (American Indians) and other descendant groups. Archaeologists have a responsibility to help stop looting and the commercial market that drives it. They must not buy or sell archaeological artifacts. See, for example, Crow Canyon’s policy in this regard.
    • Archaeologists must respect other groups’ interests in archaeology and archaeological sites. For example, archaeologists and educators at Crow Canyon regularly consult with the Native American Advisory Group. This helps the Crow Canyon staff design programs that respect Native American views and heritage.
    • In their work, archaeologists must follow applicable federal, state, and local historic preservation and environmental laws. They should also support legislation and policies that require consideration of archaeological values in planning for development projects. Federal laws that affect archaeology are described in the following section.

Archaeology and Federal Law

A number of U.S. laws affect archaeology, either directly or indirectly. Archaeology is often addressed in the context of more-general historic preservation or environmental laws. Federal laws usually have detailed regulations that prescribe how they are to be implemented. In some cases, standards have also been published to guide federal involvement in archaeology and historic preservation. The book Federal Historic Preservation Laws is available on the National Park Service website.

The states have a variety of laws relating to archaeology and historic preservation.  In addition, many American Indian tribes have laws and regulations designed to protect archaeological sites on tribal lands and to regulate access to them.

Many archaeologists in the U.S. today are employed by federal or state agencies, Indian tribes, or private consulting firms to do “cultural resource management” archaeology. This work is ordinarily done to comply with federal, state, and tribal laws.

The federal laws most important for the practice of archaeology in the U.S. are described below.

1. Antiquities Act of 1906. This is the “grand-daddy” of federal laws related to archaeology and historic preservation. Its main provisions are as follows:

    • It is illegal to excavate, collect from, or damage archaeological sites on federal land without a permit. The penalty for violations includes a fine and/or imprisonment.
    • Permits are to be given only to “reputable museums, universities, colleges, or other recognized scientific or educational institutions” for the purpose of increasing knowledge.
    • Collections made under such permits are to be preserved in public museums.
    • The President may designate certain areas of the federal lands as national monuments. Monuments are to be established to protect “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.”

The permitting and penalty provisions of the Antiquities Act have been superseded by the Archaeological Resource Protection Act (see below). However, the national monument provision is still in effect. Since 1906, more than 100 monuments have been designated. The Canyons of the Ancients National Monument in southwestern Colorado was established by President Clinton in the year 2000. This monument includes several sites (for example, Sand Canyon Pueblo and Castle Rock Pueblo) where Crow Canyon teams have excavated.

2. Archaeological Resources Protection Act of 1979 (ARPA). This law was passed to strengthen protection of archaeological sites and to better regulate excavations on federal or Indian land. The act states the following:

    • Permits can be issued by the appropriate land-managing agency to qualified archaeologists for projects that “further archaeological knowledge in the public interest.”
    • Unauthorized excavation of archaeological sites on federal lands is a crime and is a felony if the damage is determined to be more than $500.00. Civil penalties can also be assessed.
    • Buying or selling artifacts taken illegally from federal or Indian land is a federal crime.
    • Materials collected under an ARPA permit and the associated records must be curated permanently in a museum or other approved repository.
    • If excavation permits are requested for Native American sites, the permitting agency must seek the views of related tribes.

3. National Historic Preservation Act of 1966. This act applies to a variety of historic properties, including archaeological sites, historic buildings, historic battlefields, etc. There are several provisions that are especially important for archaeology.

    • Section 106 of the Act requires federal agencies to plan their undertakings so as to take into account the possible effects on archaeological and historic sites.  “Undertakings” are defined broadly to include all forms of federal assistance, licensing and permitting, as well as projects directly funded by the federal government. Agencies are required to do surveys to find out whether significant archaeological or historic sites will be affected by an undertaking. They also are encouraged to find ways to avoid or minimize impacts on such sites if feasible.
    • Section 101 deals with the Advisory Council on Historic Preservation. This council oversees agencies’ Section 106 compliance efforts. Much of the archaeology in the U.S. today is done to comply with Section 106, and regulations published by the Advisory Council guide these efforts.
    • Section 101 also establishes a National Register of Historic Places. The staff of the Register maintains a list of properties determined to be of significance in American history, at the local, state, or national levels. Sites do not have to be formally nominated to the Register to be considered in federal agency planning under Section 106. For planning purposes, National Register criteria can be used to determine whether a site is eligible for the Register and thus worthy of attention in agency planning.
    • In addition, Section 101 requires each state to have a State Historic Preservation Office funded by both the state and federal governments (a list of state offices is provided by the National Conference of State Historic Preservation Officers). The State Historic Preservation Officer (SHPO) develops programs to promote historic preservation in his or her state. Federal agencies are required to consult with the SHPO as they carry out their Section 106 responsibilities. On Indian lands, Tribal Historic Preservation offices can be established to take over many of the responsibilities otherwise carried out by the SHPO. Local governments can also be certified to take over some of the duties of the SHPO.
    • Section 110 sets forth proactive responsibilities for federal agencies. It requires them to establish historic preservation programs, inventory and nominate properties to the National Register, manage properties so their historic qualities are not lost, and comply with Section 106. It also requires that they designate an agency Historic Preservation Officer to coordinate and facilitate these efforts.

4. Native American Graves Protection and Repatriation Act of 1990 (NAGPRA). This act recognizes the rights of Native American individuals and tribes, and Native Hawaiian organizations, to possess related human remains and “cultural items.” These items include funerary objects, sacred objects, and objects of cultural patrimony, as defined in the law.

    • The act establishes a priority of ownership of human remains and cultural items. Included are lineal descendants, tribes on whose lands the items were discovered, culturally affiliated tribes, and tribes that aboriginally occupied the lands where the items were discovered.
    • Section 3 sets up procedures for permitted excavation or inadvertent discovery of human remains and cultural items after the law was passed in 1990. This section also addresses consultation, determination of ownership, and repatriation in these cases.
    • Section 4 of the act amends the U.S. Code to prohibit buying and selling Native American human remains and cultural items. It sets forth penalties for these offenses.
    • Sections 5 through 7 of NAGPRA establish responsibilities for organizations that maintain collections of archaeological materials made before 1990. These organizations include federal agencies and also museums, universities, and other repositories, if they receive some type of federal funding or assistance. Such institutions are required to inventory their collections of Native American and Native Hawaiian human remains and cultural items (as defined in the law). In consultation with tribal governments and Native Hawaiian organizations, they must establish the ownership of the remains and other items, if possible, and must repatriate them upon request. Many repatriations have taken place, but in some cases, they are still ongoing.
    • Section 8 sets up a review committee consisting of Native American traditional religious leaders, other representatives of tribes and Native Hawaiian organizations, and representatives of national museum and scientific organizations. Duties of the committee include monitoring inventory and identification activities under Sections 5 and 6, and helping resolve questions and disputes about cultural affiliation and rights to repatriation.

NAGPRA has required archaeologists and federal agencies to consult much more frequently and intensively with Native American tribes and Native Hawaiian organizations. At Crow Canyon, the Native American Advisory Group has helped develop research and educational guidelines that respect Native American concerns about the treatment of human remains and certain types of artifacts.

One of the issues still to be resolved under NAGPRA is the disposition of human remains and cultural items for which a clear cultural affiliation has not been determined or is controversial. Extremely ancient remains, such as the Kennewick skeleton, often fall into this category. For further information about the Kennewick case, see the May 2004 National Park Service article (“Kennewick Man”) and the published opinion of U.S. Court of Appeals (which appears on the SAA website).

William D. Lipe is professor emeritus at Washington State University and former director of research at Crow Canyon. He currently serves on Crow Canyon’s Board of Trustees.

© 2006 by Crow Canyon Archaeological Center. All rights reserved.