Historical Survey of U.S.
Preservation Legislation
Description: Beginnings of the preservation movement in the United States; history of national legislation pertaining to archaeology and preservation, from the Antiquities Act of 1906 to the present; the birth of cultural resources archaeology.
Learning Objectives:
• Examine the history of U.S. preservation.
• Analyze the major
preservation legislation in the United States.
Readings:
• Text of Antiquities Act of 1906.
• Text of Historic Sites Act of 1935.
Fowler, Don D., “Conserving American Archaeological Resources,” in D. Meltzer, D. D. Fowler, and J. A. Sabloff, eds., American Archaeology Past and Future: A Celebration of the Society for American Arcaheology 1935–1985. Washington: Smithsonian Institution (1986), 135–162.
Neuman, Loretta, "The Politics of Archaeology and Historic Preservation: How our Laws are Really Made," in G. S. Smith and J. E. Ehrenhard, Protecting the Past. Boston: CRC Press (1991), 41–46.
Patterson, Thomas C., “The Political Economy of Archaeology in the United States,” Annual Review of Anthropology 28 (1999): 155–174.
I. Early Preservation Efforts in the United States
A. The "Washington slept here syndrome": Historical buildings associated with important figures or periods of American history, especially the Revolutionary War. Examples: Old State House, Philadelphia (purchased from state by city in 1816); Hasbrouck House (Washington's headquarters in Newburgh, NY, bought by state in 1850); Mount Vernon, VA (private preservation effort by Ann Pamela Cunningham and the Mt. Vernon Ladies' Association of the Union).
B. Frederick Ward Putnam rescues the Serpent Mound in Ohio by purchase in 1885. Title given to Peabody Museum at Harvard, transferred in 1900 to the Ohio Archaeological and Historical Society.
C. Archaeological organizations: Bureau of Ethnology created by Congress 1879 as part of Smithsonian. The Anthropological Society of Washington was founded in the same year (a spinoff in 1902 would become the American Anthropological Association). Also in the same year, the Archaeological Institute of America (AIA) was founded; among its early concerns were surveys of Pueblo Indian sites in the Four Corners Area and Pecos.
D. 20th-Century Trends:
1) Preservation for aesthetic reasons, not just historical associations (e.g., the Paul Revere House in Boston, owned by the historical personage but restored to original 17th-century appearance).
2) Society for the Preservation of New England Antiquities founded in 1910.
3) Colonial Williamsburg founded in 1926; led to first interdisciplinary training program for historic preservation professionals, including historical archaeologists.
4) National Trust for Historic Preservation chartered in 1949.
II. The Antiquities Act of 1906
A. Looting of Southwest sites reported by archaeologists like Adolf Bandolier leads to lobbying efforts for protection. In 1892, Casa Grande in New Mexico becomes the first federal archaeological reservation set aside by the president.
B. Beginning in 1899, the AIA and American Association for the Advancement of Science work together to promote a bill to set aside archaeological and scenic sites of value. Several bills fail to win support in Congress; finally the Antiquities Act of 1906 is passed and becomes the first federal preservation law.
C. Elements of the Antiquities Act:
1) President may set aside archaeological objects, structures, and sites on federal lands as national monuments.
2) Damage or destruction to any historic or prehistoric object or site located on federal lands is prohibited and violators are subject to a fine, imprisonment, or both.
3) Investigations of sites on federal lands, including collection of objects and excavation, requires a permit.
D. Importance of the Antiquities Act:
1) The authority to set aside national monuments was used by many presidents; in fact, the Antiquities Act is the authority of more than a quarter of the units of today's National Park Service. This authority is still in effect.
2) The punitive provision of the Antiquities Act was successfully challenged in the case of U.S. v. Diaz, 368 F.Supp. 856 (D. Ariz. 1973), reversed in 1974, 499 F2d. 113 (9th Cir. 1974). The uncertainties resulting from this decision led to efforts to create a new, comprehensive law to protect archaeological resources on federal lands. The result was the Archaeological Resources Protection Act of 1979.
III. Creation of National Park Service in Department of Interior, 1916
A. Development of a national system of parks, battlefields, monuments, cemeteries, etc.
B. Gradual emergence of NPS role as the primary federal agency for the preservation of cultural resources, not only through its park system but also by offering guidance and advice to the other federal agencies.
IV. Historic Sites Act of 1935
A. Passed with the personal approval and interest of President Franklin D. Roosevelt and his Interior Secretary Ickes, the Historic Sites Act is the first U.S. law to declare preservation to be national policy: ". . . it is a national policy to preserve for public use historic sites, buildings and objects of national significance for the inspiration and benefit of the people of the United States" (16 U.S.C. 461).
B. Authorized the National Park Service to undertake a wide range of research and survey programs, including HABS (Historic American Buildings Survey) and HAER (Historic American Engineering Record).
C. Established a National Landmarks Program.
D. Promoted public-private partnerships to encourage widespread preservation efforts throughout the states.
V. National Historic Preservation Act of 1966, as amended
A. The premier CRM legislation in the United States. Developed out of concerns for preservation of cities and towns in the wake of post-World War II highway programs and urban development. Drafted by legal experts of the National Trust for Historic Preservation, NHPA was passed in 1966 and amended in 1976, 1980, and 1992.
B. Essential Provisions of NHPA:
1) Established National Register of Historic Places.
2) Established an Advisory Council on Historic Preservation.
3) Established grant-in-aid program to the states.
4) Required development of State Historic Preservation Offices (SHPOs) and state preservation plans.
5) Section 106 required heads of federal agencies to "take into account" the effect of undertakings (i.e., federally funded, permitted, licensed projects) on "any district, site, building, structure or object that is included in the National Register."
C. Importance of NHPA:
1) Created the fundamental system of cultural resource management that is still in use today.
2) Stimulated preservation efforts in the states.
3) Required federal agencies to be responsible for identifying and dealing with cultural resources, thus decentralizing the preservation effort among the federal departments.
4) Stimulated the development of cultural resources archaeology, which would eventually create a private and public sector of the archaeological profession that did not exist to any degree before. Archaeological compliance surveys became common especially after President Nixon issued Executive Order 11593 in 1971, which, among other things, required federal agencies to conduct inventories of historic properties under Section 106 that might qualify for the National Register. The original language of Section 106 in 1966 only stated that federal agency heads had to consider properties in the National Register, not those (like most archaeological sites) that might be eligible but were not obvious. Nixon's order addressed that problem, which was finally resolved in the 1976 amendment of NHPA.
VI. National Environmental Policy Act of 1969
A. Another major federal law, NEPA required that all major federal impacts be evaluated for their potential impacts on environmental, historical, and archaeological resources. The threshold for evaluation is MFASAQHE, or "major federal actions significantly affecting the quality of the human environment"; such projects require an Environmental Impact Statement (EIS).
B. The Draft EIS must be circulated to appropriate agencies, local governments, Indian tribes, and the public. It includes a description of the various project alternatives and their impacts. Comments on the Draft EIS are taken into account and a Final EIS is prepared. The FEIS is considered by the decision-making authority and once a decision is made, a Record of Decision is published, including a description of what the agency intends to do about mitigating impacts.
C. Archaeological impacts must be considered during the EIS process and the agency must comply with other relevant legislation, including NHPA.
VII. Archaeological Resources Protection Act of 1979, as amended
A. Background: Until ARPA, protection of archaeological resources on public lands was limited to the provisions of the Antiquities Act of 1906 and relevant portions of other existing laws, such as NHPA. But prosecutions and convictions of looters under the Antiquities Act were extremely limited, and by 1974 U.S. v. Diaz had resulted in the punitive provisions of the Act being ruled unconstitutional in the states of the Ninth Circuit. Clearly a new law was needed. ARPA was amended in 1988.
B. Essential provisions of ARPA:
1) Archaeological resources on public lands owned by the United States.
2) It is illegal to disturb, destroy, or remove archaeological resources on public lands. Penalty provisions may go as high as $250,000 for individuals or $500,000 for organizations, as well as up to two years incarceration.
3. Permits for research and investigation must be obtained from the federal land manager or Indian tribe.
4. Federa agencies are required to develop plans for surveying their lands that are not scheduled for development projects and for developing public awareness programs.
VIII. Abandoned Shipwreck Act of 1987
Note: underwater archaeology is not covered in this course. For information on this topic, please see the class lesson in my course, Archaeological Ethics and Law (http://www.indiana.edu/~arch/saa/matrix/ael/ael_mod12.htm).
IX. Native American Graves Protection and Repatriation Act of 1990
A. Background: Increasing concerns over the treatment of Native American human remains led to political action. The Smithsonian Institution's repatriation policy.
B. Essential provisions of NAGPRA:
1) Definitions: human remains, associated funerary objects, unassociated funerary objects, sacred objects, objects of cultural patrimony.
2) Federal agencies, museums, institutions must inventory collections of Native American/Native Hawaiian human remains and associated objects within 5 years. Summaries of cultural objects (see above) must be made within 3 years; an effort must be made to identify rightful owners or cultural affiliation.
3) Repatriation of objects and human remains must be made upon request by culturally affiliated groups.
4) NAGPRA Review Committee established.
5) Provisions regarding intentional excavation, inadvertent discovery, and illegal trafficking.