Beyond ARPA: filling the gaps in federal and state cultural resource protection laws.

I. INTRODUCTION

Cultural resource vandalism and destruction are widespread throughout the United States.(1) One recent grave desecration incident in Mono County, California, highlighted this problem and its impact on a local level. In 1990, a grave containing the remains of a Native American was desecrated, when a thief removed the skull and possibly some artifacts. Days later, the thief was arrested, charged with violation of California state law. The local community reacted strongly to the federal and state government responses. Eventually, the community developed a local commitment to adequately address future incidents of cultural resource vandalism.

This Comment argues that current federal and state statutes are often inadequate to solve the problem. Section I discusses the case, California v. Tischler,(2) and explains the application of California state law. Section II addresses the response of the community in Mono County to the Tischler decision. In particular, Section II discusses the local committee and investigation task force formed as a result of the case. Section III presents a brief history of early attempts to control cultural resource destruction with local ordinances. Section IV discusses the reasons additional local statutes and ordinances should be enacted to protect Native American gravesites and other cultural resources. Finally, Part V presents a model county ordinance. The ordinance would enable local officials to exercise control over both public and private lands in an effort to protect all cultural resources of the past and the present.

II. THE CASE: California v. Tischler

Pat Gregory was a Native American rancher who lived in the Mono Lake basin in the late 1800's and early 1900's. He died and was buried 60 years ago. Between May 27 and June 13, 1990, someone desecrated his burial site.(3) The grave was opened and the skull removed.(4) A hip bone was left lying on top of the open grave.(5) In addition, relatives speculated that some artifacts were also removed. While there was no evidence to show exactly what was buried with Mr. Gregory's remains, testimony presented that he was probably buried with some artifacts, including a rifle. Such a rifle was found a short distance from the site where the skull was recovered.(6)

Law enforcement officials in Mono County arrested Thomas Tischler, age twenty-three, for possession of Native American remains, specifically a skull, in violation of section 5097.99 of the California Public Resources Code (PRC).(7) The federal Archaeological Resource Protection Act (ARPA) (8) Was unavailable to prosecutors, because the gravesite was less than 100 years old.(9) In addition, alternate federal jurisdiction under ARPA was questionable because authorities were uncertain whether the gravesite was on federal land.(10) These factors led the prosecution to charge Tischler under California state law.(11)

At the preliminary hearing, at least one witness testified that Tischler was in possession of a skull shortly after Memorial Day and that he intimated that the skull was Indian.(12) The same witness told authorities that Tischler had previously expressed a desire to possess a human skull.(13) Additionally, Tischler had mentioned his desire to retrieve a skull at the Indian cemetery where the Pat Gregory had been buried.(14) Although the prosecution could not establish that Tischler removed the skull or desecrated the remains, the prosecution presented a solid case for illegal possession of native American remains.(15) Early in the preliminary hearing, the prosecution established that the gravesite was marked as a Native American burial ground(16) and that the defendant was aware that such a burial site existed.(17) Under California law, this knowledge satisfied the requisite legal element of "knowingly or willfully . . . possess[ing] . . . from a Native American grave or cairn."(18)

After the preliminary hearing, the defendant entered a guilty plea without a plea bargain. In response to this plea, the prosecutor recommended a sentence of "three months in jail, probation, and 100 hours of community service work at cemeteries."(19) The recommended sentence, which could have been up to three years in jail,(20) outraged local Native American communities,(21) and local officials of the Bureau of Land Management (BLM) and U.S. Forest Service.(22) BLM and Forest Service personnel organized meetings and encouraged Native Americans to attend the sentencing hearing to voice their displeasure. The Native American community blamed law enforcement officials for the perceived mishandling of the case.(23)

According to local newspaper reports, the BLM and Forest Service encouraged a significant turnout at the sentencing hearing: "Dozens of Indians, from various tribes throughout California and as far away [sic] Idaho, packed the Bridgeport courtroom."(24) For over two hours, members of the Indian community testified, all urging that Tischler be given the maximum sentence.(25) In response to this outpouring of Native American concern and outrage, Judge Denton went beyond the probation department's recommendation and sentenced Tischler to one year in jail, five years probation, and 100 hours of community service. In his comments before sentencing, Judge Denton expressed personal outrage at the crime, saying, "I'd be damned mad if my folks' grave was disturbed, I'm going to try and send a message, a message based on the crime in front of me."(26)

III. COMMUNITY INVOLVEMENT

From the very beginning, the handling of the Tischler case outraged the local Native American communities.(27) In addition, there had been previously reported cases of grave vandalism, yet no program had been devised to ensure a proper investigation by responsible parties following such reports. Thus, for effective future investigation and prosecution of cultural resource vandalism, many changes were required.(28)

Jurisdiction was the first problem. In Tischler, the U.S. Forest Service and Los Angeles Power and Water did not determine until after sentencing that the gravesite rested on federal land.(29) This determination was significant because it would have granted preliminary federal jurisdiction under ARPA.(30) When conflicts arise over which federal or state agency has jurisdiction, any legitimate hesitation can be perceived as a lack of commitment to protect cultural resources on the part of agency officials. This apparent lack of commitment may easily translate into distrust and community schisms.

This is exactly what happened in Mono County. In Tischler, while both the BLM and the Forest Service arguably were willing to assume jurisdiction, neither could be sure it had the authority to do so. This indecisiveness was not fatal to successful prosecution, but it gave rise to the concerns expressed by the Native American community. The Native American community was unsatisfied with local law enforcement authorities' handling of the case. They raised charges of prejudice and disinterest. In addition, the family felt vital leads in the investigation were ignored.(31)

A. Initiatives for Change

The turnout for the sentencing demonstrated the community's distress.(32) Given the emotions and mistrust in the community, and concern that vandalism would continue if unchecked, the BLM and Forest Service staff felt more community involvement was necessary. Future vandalism needed to be discouraged, and if such vandalism did occur, the official response needed to be swift, thorough, and sensitive to the "victims." BLM and Forest Service personnel actively urged that full consideration be given to the "public's concern and moral rejection"(33) of the acts of vandalism before the sentence was pronounced.

Because of the strong commitment and support of local BLM and Forest Service personnel, and the backing of the Native American community, a groundswell of local activity began. Meetings were held and plans enacted to ensure that further incidents of vandalism would be handled more expeditiously. Even before Tischler's sentencing, the BLM sponsored a gathering with the Indian community to address vandalism of Native American burial sites."(34) In September, the California Native American Heritage Commission(35) met with leaders of the Native American community in both Mono and Inyo Counties, representatives of local law enforcement, and personnel from the BLM and the Forest Service. Attendees expressed strong support for personal commitment, mutual trust, and active involvement aimed at addressing the vandalism problem.(36)

B. The Cultural Resource Vandalism Standing Committee

Participants in the meeting with the California Native American Heritage Commission also created an intertribal, interagency standing committee. As envisioned, the standing committee would include members of the U.S. Forest Service, Bureau of Land Management, Mono County Sheriffs Office, Inyo County Sheriff's Office, California Department of Transportation (Cal-Trans),(37) and National Park Service. All the Native American communities within the Mono Basin would send representatives.(38) The first chore of the standing committee was to establish a resource base. At first, the primary resources were maps and site surveys compiled by the U.S. Forest Service and the BLM. The committee created a fact sheet that listed both the agencies and Native American groups that needed to be involved,(39) and a list of contact people from each group.(40) The fact sheet also included a list of relevant federal, state, and county statutes and ordinances that had an impact on the problem of cultural resource destruction. Finally, the fact sheet contained a preliminary statement of jurisdiction detailing which agencies were responsible for investigation on which lands.(42)

After formation of the standing committee, three goals were established:(43) Supply expert advice from traditional Native American elders, human osteologists, American Indian Religious Freedom Act (AIRFA) and ARPA specialists, legal advisors, forensic specialists, and academic and research specialists; 2) to educate the public and promote intercultural awareness(44) and crime prevention; and 3) to create and empower an enforcement force that would cover the jurisdictional law for each agency, and incorporate tribal representatives, archaeologists, landowners and district attorneys.

The standing committee identified several problems as a result of Tischler: unknown jurisdiction over grave sites and artifacts, inability to promptly identify the violated resource, and uncertainty about which agency could best handle the investigation. In order to solve these problems, the standing committee organized an expert response team to begin immediate investigation of all reported incidents.(45) This team, formed under the umbrella of the original standing committee, became the task force. Its original members were cultural resources specialists from both the BLM and the Forest Service, two representatives of the Native American community, a National Park Service representative, and an employee of CalTrans.(46) The task force was charged with immediate response and now includes specialists in cultural resource management, law enforcement, forensic science, and Native American community leaders.(47) By August of 1991, a specific organizational pattern for the task force was established.(48) A core group was created to be contacted first in every situation. Key agencies, tribes, and individuals were to be notified as warranted by the jurisdiction and nature of the incident.(49) Finally, specialists would be contacted depending on the need.

During later discussion of education, the standing committee decided that it was important to get the Native American community involved in the identification of cultural resource sites. The committee stressed that all agencies and tribes should be involved from the beginning of the educational process.(50) The members emphasized the importance of active participation by tribal members. The committee also explicitly recognized that the tribes needed and wished to guard to their knowledge of sites from potential looters.(51)

The standing committee also decided that jurisdictions needed to be clarified. It decided that the task force should have maps of the areas with site-specific information. However, the maps would be available to the task force to insure confidentiality(52) Finally, the members recommended that each tribe designate a knowledgeable contact person in each reservation or community.

Information is still sketchy on the effectiveness of the standing committee and the task force.(53) The natural resource agencies, Native Americans, and law enforcement must be involved for this idea to work. The creation of the standing committee led the community to believe that they would have some effect upon actions within the community. This belief is vital if such committees are to succeed. So far, one Native American elder has mobilized the resources of the committee to help in her successful fight to defeat a proposed development threatening a burial site.(54) More time and effort is needed to ensure that all burial sites and cultural resource sites are protected. This process has begun in Mono County.

IV. FEDERAL AND STATE LAW ARE NOT ENOUGH

While there are federal and state statutes providing protection for Native American cultural resources and burial sites, Tischler(55) makes it apparent that more than federal or state laws are needed to curtail the vandalism of Native American cultural resources and burial sites. Federal and state statutes do not be apply in every circumstance of desecration because sites may not qualify for protection.(56) As evidenced in the Tischler case, ARPA provisions were inapplicable. Fortunately, there was an applicable relevant state statute.(57) However, in other cases, ARPA and state laws may not offer sufficient protection to cultural resources. Thus, there are compelling reasons to prepare and enact viable local laws.

A. Early Attempts at Local Control

Local control of cultural resource protection, as demonstrated in Mono County is still a relatively new idea. While federal laws have been on the books since the early part of this century,(58) Marin County, California, adopted one of the first local ordinances in 1967.(59) In his book, The Plundered Past, Karl Meyer describes how forty high-school students worked for two years on archaeological sites in the county.(60) Realizing that there was little protection for these sites, they persuaded the Marin County Board of Supervisors to pass a cultural resource protection ordinance.(61) This early attempt, though laudable, had significant shortcomings. It refers only to "Indians in the distant past"(62) and protects only "Indian middens"(63) accumulations of refuse near a dwelling site, which the ordinance describes as "deposits of shells and other materials in mounds.(64) No provision is made for any consultation with Native American groups. On the contrary, the only consultation called for is with "institutions of higher learning or associations having as one of their purposes of study objects of archaeological significance."(65) It does, however, require a permit to excavate(66) and controls any midden, whether on public or private land.(67)

The next significant attempt at local control of cultural resources was made when Inyo County, California, enacted its Ordinance No. 245 in 1973.(68) Inyo County lies just south of Mono County in eastern California. The Inyo County ordinance demonstrates the benefits gained when local lawmakers custom-fit cultural resource protection provisions to the local conditions. The Inyo County ordinance begins with a statement of purpose, which acknowledges that "Native California Indians have been in continuous residence in the County of Inyo and have strong spiritual, emotional, historical, and environmental ties to land in the County of Inyo, specifically, but not exclusively, the burial sites of their ancestors."(69) Only a local ordinance can be tailored this specifically; for instance, the Inyo County ordinance names individual tribes, reservations, and other relevant jurisdictions and implements precise permitting schemes.(70)

B. Benefits of Local Ordinances

The Inyo County Ordinance also demonstrates that if agencies and Native American communities are involved, and the local terrain is taken into account, a workable ordinance can be written. Then, local involvement can effectively carry out both state and local land use ordinances and plans.(71) Local residents usually know the type and location of burial sites. Meaningful community involvement stems from the interaction between the citizens and the officials responsible to those citizens. Laws established by friends and neighbors are easier to follow than laws established by officials far removed from the situation.

There are also more subtle reasons for giving control to local communities. First, local authorities are more likely to react to community will. Often, cultural resource destruction occurs in rural communities. According to Michael Rogers of the Bishop Tribal Council, the Native American community in Mono County wielded a strong political weapon in its protest of the original Tischler sentence.(72) Because the local judge was elected by the community, the Native Americans involved in the protest felt he would be more responsive to local pressure. In such relatively unpopulated areas, federal trials may limit community participation. In Tischler, the closest federal Courthouse was more than a two and a half hour drive from the site of the crime. It is difficult for many persons to attend such trials, and without the presence of these individuals, different outcomes are possible.(73) Thus, the proximity of the county courthouse had a strong influence on the Tischler trial.

Second, federal or state statutes may be seen as overkill for a particular local crime. Frequently, federal and state prosecutors may not be willing to invest the time and resources in what they believe to be a de minimis case. Site vandalism cases may not economically warrant prosecution. Federal or state statutes do not adequately address local problems because they are too broad. There also may be loopholes in state and federal statutes that local ordinances can fill.(74)

Third, one of the positive by-products of a trial is the legal education of local citizens. Local trials often educate the public about site vandalism. This is best achieved at a local level through the local media. For example, a federal trial in Portland, Oregon, would not be as well publicized in Bend, Oregon, as would a state trial held in Bend. Properly handled, local newspapers and television stations can accomplish as much in a single story or news feature as can be accomplished in numerous community meetings.

Fourth, local controls can trigger the trafficking provisions of ARPA. ARPA states:

No person may sell, purchase, exchange, transport, receive, or offer

to sell, purchase, or exchange, in interstate or foreign commerce,

any archaeological resource excavated, removed, sold, purchased,

exchanged, transported, or received in violation of any provision,

rule, regulation, ordinance, or permit in effect under State or local

law.(75)

Violation of local or county ordinances may trigger federal statutes and may allow local prosecutors to involve the federal government, both at the investigatory and prosecutorial levels. This triggering mechanism allows local prosecutors access to federal expertise and resources not generally available at a local level. Additionally, local prosecutors may be able to utilize the fear of federal involvement in attempting to secure the cooperation of defendants.(76)

V. CONCLUSION

Local ordinances are beneficial additions to the fight to protect and preserve cultural resources for a number of reasons. Local ordinances can be custom-fit to local values and circumstances. The local value system can be tailored to insure better community support. Better community support translates into strong enforcement of local ordinances, and the heightened sensitivity that is necessary to safeguard the rights of all Americans. To stop the vandalism and destruction of the cultural resources and burial sites of all people, efforts must be made at all levels of government. Local ordinances will help fill the deficiencies of current state and federal statutes.

A Model Cultural Resource Protection Ordinance

Section 1. Preamble

Native American archaeological sites, burial grounds, sacred sites, sacred objects, archaeological resources, and historic graves are acknowledged to be a finite, irreplaceable, and nonrenewable cultural resource, and are an intrinsic part of the cultural heritage of the people of this county. The County Commission(78) recognizes the value and importance of respecting all such sites and objects, and the spiritual significance of such sites to the people of this county. Native American archaeological sites, burial grounds, sacred sites, sacred objects, archaeological resources, and historic graves located on public and private land are to be protected and it is this Commission's intent to encourage reporting and respectful handling in cases of accidental disturbance and provide enhanced penalties for deliberate destruction.

Section 2. Definitions(79)

Unless the context clearly requires otherwise, the definitions contained in this section shall apply throughout this ordinance. (1) "Archaeology" means the systematic, scientific study of

human history through examination of material remains. (2) "Archaeological resource" means an object that comprises the

physical evidence of an indigenous and subsequent cultures.

Such objects are material remains of past human life and include

monuments, symbols, tools, facilities, and technological

by-products. This definition does not include human remains. (3) "Archaeological site" means a geographic locality within this

County, containing any archaeological resource, historic grave,

Native American burial site, sacred site, or sacred object. (4) "Cultural resource" means materials or objects that are designated

by Native American tribal councils or leaders as having

significant cultural value to that particular Native American

group.80 [Relevant tribal authority) has promulgated a tribal

ordinance addressing this subject and it is hereby incorporated

by reference.(81) (5) "Historic" means peoples and cultures who are known

through written documents in their own or other languages. (6) "Historic grave" means a grave or graves of any age, that were

placed outside a dedicated cemetery. (7) "Native American burial site" means any site, whether

marked or unmarked, that contain the remains of any Native

American. (8) "Native American remains" means any human remains and

any funerary artifacts that were associated with a Native

American burial site. (9) "Prehistoric" means peoples and cultures who are unknown

through contemporaneous written documents in any

language. (10) "Professional archaeologist" means a person who has met

the educational, training, and experience requirements of

the Society of Professional Archaeologists. (11) "Sacred object" means an archaeological resource that is demonstrably

revered by any ethnic group, religious group or

Native American group as holy, and was or is used in connection

with the religious or spiritual service or worship of a

deity or spirit power. [Relevant tribal authority] has promulgated

a tribal ordinance addressing this subject and it is

hereby incorporated by reference. (12) "Sacred site" means any site that was or is demonstrably

used by any ethnic group, religious group or Native American

group as holy, and was or is used in connection with the

religious or spiritual service or worship of a deity or spirit

power. [Relevant tribal authority] has promulgated a tribal

ordinance addressing this subject and it is hereby incorporated

by reference.(83)

Section 3. Prohibitions

Except as allowed under Section 5 of this Ordinance, it shall be unlawful on the private and public lands of this County, for any person or entity, whether as an individual or as a firm, corporation, or any agency or institution of this state or a political subdivision thereof, (A) to knowingly remove, alter, dig into, or excavate by any means whatsoever, or to damage, deface, or destroy any historic or prehistoric archaeological resource or site, including, but not limited to, Native American or historic camp site, dwelling site, rock shelter, cave dwelling site, storage site, or tool making site, or to remove from any such land, site, or area, any artifact or implement of stone, bone, wood, or any other material, including, but not limited to, projectile points, arrowheads, knives, awls, scrapers, beads or ornaments, basketry, matting, mauls, pestles, grinding stones, rock carvings or paintings, or any other artifacts or implements, or portions or fragments thereof associated with such sites, or (B) knowingly remove, alter, dig into, or excavate by any means whatsoever, any Native American burial site, historic grave, skeletal remains, funerary artifacts, or sacred object.

Section 4. Reporting (85)

Any person who discovers any Native American burial site, historic grave, archaeological site, sacred site, sacred object, or archaeological resource on any land within this county, whether public or private, shall promptly report such discovery to the County Commission.

Section 5. Permit (86)

(A) It is unlawful for any person to enter a site located on public or private lands within this County, for the purpose of appropriating, injuring, disturbing, or destroying an archaeological resource, Native American burial site, sacred site, sacred object, or historic grave, without a permit from the County Commission. (B) Such permit shall include but not limited to, the name of the permittee, the date of the permit, and the maximum time such entrance may be allowed. (C) Application for a permit shall be made on a form furnished by the County Commission and shall be accompanied by the payment of a fee or posting of a bond to be determined by the County Commission. (D) If a permit is issued, all archaeological work shall be carried out:

(1) under the supervision of a professional archaeologist; and

(2) according to rules adopted by the County Commission. (E) The County Commission shall revoke or suspend a permit, or declare the bond to be forfeited, if the permittee fails to conduct the excavation as required by the rules enacted by the County Commission. (F) All items recovered, whether by permittees or non-permittees, are the property of the County, except that in the case of items recovered from Native American burial sites or any Native American remains or any sacred objects shall be returned to the appropriate ethnic group, religious group or Native American group that such items are associated with. If no such group or entity is found, or a disagreement ensues between such groups or entities, the County Commission shall establish a committee made up of not more than three members, two of whom must represent local Native American communities, who shall determine to which Native American group such items will be returned.

Section 6. Notice(87)

(A) If a person who is conducting an archaeological investigation on any public or private lands, whether or not in accordance with the provisions of this Ordinance, finds any sacred object or any Native American remains, the person conducting the archaeological investigation shall notify in writing:

(1) the County Commission; and

(2) the appropriate ethnic group, religious group or Indian tribe with whom such item is associated. (B) Failure to report any find with the province of this Ordinance, whether or not such finder has a permit, shall subject the finder to all provisions of this Ordinance.

Section 7. Penalties(88)

(A) Violations of any provision of this Ordinance shall be punishable as a misdemeanor and upon conviction shall be punished by a fine not exceeding twenty-five hundred dollars ($2500) or imprisonment not to exceed one (1) year, or both.(89) In addition to any other penalties imposed, upon conviction, all articles and materials recovered from such archaeological sites shall be forfeited, as shall all profits which have been made from the sale of any such articles and materials. In addition, all vehicles and equipment of any person that is convicted under this ordinance and which was used in connection with such violation, shall be subject to forfeiture upon conviction. (B) Any person who sells any Native American artifacts or any Native American remains taken from a Native American cairn or grave, is guilty of a misdemeanor, and shall be subject to the same penalties as listed in subsection (1) of this section. If such sale would be a felony under relevant state law, that law shall supersede this ordinance and all applicable penalties shall apply. (C) Any person who shall in any way damage, molest, disturb, destroy, or harm any archaeological or historic site, shall be liable civilly to the County by way of penalty in a sum equal to triple the amount of the cost and expense of repairing, replacing, and reconstructing the site or property, to the site's condition prior to such damage, injury, molestation, or destruction.

Section 8. Civil enforcement(90)

(A) Any person, group, or the County Attorney, on behalf of the County, may institute a civil proceeding against a person who violates the provisions of this ordinance. In such proceeding, relief shall be granted in conformity with the principles that govern the granting of injunctive relief in other civil cases, except that no showing of special or irreparable damage to the person shall be required. Upon the execution of the proper bond against damages for an injunction improvidently granted and a showing of immediate danger of significant loss or damage, a temporary restraining order or a preliminary injunction may be issued in any such action before a final determination on the merits. (B) In any proceeding brought under this section, the court may allow the prevailing party to recover costs, expert witness fees, and reasonable attorney fees at trial and upon appeal. (C) The County Attorney may, upon timely application, intervene in any civil action or proceeding brought under this section if the County Attorney certifies that in the opinion of the County Attorney, the action or proceeding is of general public importance. In such action or proceeding, the County shall be entitled to the same relief as if the County Attorney instituted the action or proceeding. (D) The application of one civil remedy shall not preclude the application of any other remedy or any other provision of statutory or common law. Civil remedies under this Ordinance are supplemental and not mutually exclusive. (E) Any action brought under this Ordinance must be brought within two years of the discovery of the violation by the party alleging the violation. The action shall be filed in civil court of this County. (F) Any criminal conviction pursuant to this Ordinance shall be prima facie evidence in an action brought under this section. (G) If the plaintiff prevails:

(1) The court may award reasonable attorneys' fees to the

plaintiff;

(2) The court may grant injunctive or such other equitable

relief as is appropriate, including forfeiture of any artifacts

or remains acquired or equipment used in the violation. The

court shall order the disposition of any items forfeited as the

court sees fit, except that all Native American remains, sacred

objects, or resources shall be returned to the appropriate

ethnic group, religious group or Native American group

with which such remains are associated. If no such group or

entity is found, or a disagreement ensues between such

groups or entities the County Commission shall establish a

committee made up of not more than three members, two of

whom must represent local Native American communities,

who shall determine to which Native American group such

items will be returned.

(3) The plaintiff shall recover imputed damages of five hundred

dollars or actual damages, whichever is greater. Actual

damages include special and general damages, including

damages for emotional distress. The plaintiff shall also recover

all costs associated with the reinternment of any Native

American remains.

(4) The plaintiff may recover punitive damages upon proof

that the violation was willful. Punitive damages may be recovered

without proof of actual damages. All punitive damages

shall be paid by the defendant to the appropriate ethnic

group, religious group or Indian tribe with whom such

items are associated.

(5) An award of imputed or punitive damages may be made

only once for a particular violation by a particular person,

but shall not preclude the award of such damages based on

violations by other persons or on other violations. (H) If the defendant prevails, the court may award reasonable attorney's fees to the defendant. (I) Nothing in this Ordinance shall apply to actions taken in the performance of official law enforcement duties or to actions taken that were required by any other law or ordinance. (J) It shall be a complete defense in a prosecution under this ordinance if the defendant can prove by a preponderance of evidence that the alleged acts were accidental or inadvertent and that reasonable efforts were made to preserve any archaeological resources or Native American remains accidentally disturbed or discovered, and that the accidental discovery or disturbance was properly reported.

* J.D. 1993, Northwestern school of Law of Lewis and Clark College; B.S., 1990, University of Nevada, Reno. The author is deeply indebted to Jan Cutts, Cultural Resource Specialist for the U.S. Forest Service, for supplying a wealth of information (1.) Aaron Sugarman, The Treasures of America . . . Looted!, TRAVELER, July 1992, at 81. (2.) California v. Tischler, No. 9852 (Cal. App. Dep't Super. Ct. 1990). (3.) Transcript of Proceedings at 5-6 (testimony of Richard Williams), California v. Tischler, No. 9852 (Cal. App. Dep't Super. Ct. 1990) [hereinafter Transcript]. (4.) Id. at 24-25 (testimony of Everett Williams). (5.) Id. at 15-16 (testimony of Betty Andreas). (6.) Id. at 26-27 (testimony of Everett Williams), 35 (testimony of Nick Dondero). (7.) Cal. Pub. Res. Code Section 5097.99 (West Supp. 1992). This section, and the sections which accompany it, were passed in response to the court decision in Wana the Bear v. Community Construction, Inc., 180 Cal Rptr. 423 (1982). In Wana, the court held that the California statutes in effect at that time did not protect Native American gravesites. Id. The California legislature responded with the above legislation. (8.) 16 U.S.C. Sections 470aa-470ii (1988 & Supp. 1992). (9.) 16 U.S.C. Sections 470bb(1). (10.) Jan Cutts, Joining Forces to Combat Burial Vandalism, Abstract (1990) (on file with the author). According to Cutts, "the cemetery straddles the boundary of Los Angeles Department of Water and Power and Inyo National Forest Lands . . . [and] a land survey was not completed until after the sentencing of the defendant." Id. at 2. (11.) CAL. PUB. Res. Code Section 5097.99 (West Supp. 1992). (12.) Transcript, supra note 3, at 41-43 (testimony of Robert Morgan). (13.) Testimony was given that during a party at Tischler's home, Tischler spoke of adding another skull to the cat skull he had taped to his beer bottle. Id. at 38-41. (14.) Id. (15.) Id. (16.) During examination of Richard Williams, the great-grandson of Pat Gregory, it was established that the cemetery was used exclusively for Indians and that it was marked with a sign "made of redwood, two by [twelve] and . . about two feet long." Transcript, supra note 3, at 8-9. (testimony of Richard Williams). (17.) Transcript, supra note 3, at 39-40 (testimony of Robert Morgan). (18.) See Cal. Pub. Res. Code Section 5097.99 (West Supp. 1992). (19.) M.C. Naylor, Sentence Protest in Mono, INYO REGISTER, Aug. 31, 1990, at 1. (20.) Cal. Pub. Res. Code Section 5097.99 (West Supp. 1992). (21.) Cutts, supra note 10, at 1. In the Mono and Inyo County areas, there are a total of 11 tribal affiliations. Six are local, four are non-local with traditional ties to the area, and one is a non-recognized community. Among the various tribal and reservation affiliations are: the Antelope Valley Paiute/Washoe Indian Community, the Bridgeport Indian Reservation, the Mono Lake Indian Community, the Utu Gwaity Paiute Tribe, the Big Pine Paiute/Shoshone Band, the Fort Independence Reservation, the Bishop Indian Reservation, the Lone Pine Reservation, the Death Valley Timbi-Shaw Shoshone Band, and the Owens Valley-Paiute-Shoshone Band. Id. (22.) Naylor, supra note 19, at 1. (23.) Charlotte Baker, the great granddaughter of Mr. Gregory, expressed the feeling that the sheriffs department had not investigated properly and had "shut their doors on us." Pierre LaBossiere, Indians Outraged at Light Sentence, REVIEW-HERALD, Thursday, August 30, 1990, at 1. (24.) Scott Weldon, Mammoth Times, Sept. 6, 1990, at 1. (25.) Id. (26.) LaBossiere, supra note 23, at 1. (27.) See LaBossiere, |Grave-robbing' Alarms Local Indians, Review Herald, Aug. 26, 1990, at 1. (28.) Cutts, supra note 10, at 1-4. (29.) Id. at 2. (30.) 16 U.S.C. Sections 470bb (1988 & 1992 Supp.). (31.) LaBossiere, supra note 23, at 1. Such leads included evidence of cult activities and rituals performed in the vicinity of the cemetery. Id. (32.) See LaBossiere, supra note 24 at 1 & note 27 at 1; Weldon, supra note 24, at 1. (33.) Letter from Michael A. Ferguson, Area Manager, Bureau of Land Management, and Dennis W. Martin to Honorable Edward Denton 1 (Aug. 30, 1990) (on file with author). (34.) Bureau of Land Management, U.S. Dep't of Interior, Media Release 1 (August 23, 1990). (35.) This commission was established in 1976 by the California legislature. CAL. Pub. Res. Code Section 5097.91-.99 (West Supp. 1992). It is composed of nine members, five of whom must be "leaders, traditional people, or spiritual leaders of California Native American organizations, tribes, or groups within the state." Id. As part of its regular itinerary, it meets in outlying areas three times each year. Id. (36.) M. C. Naylor, Agencies, Native Americans Unite to Save Area Heritage, Inyo Register, September 23, 1990 at 1. (37.) CalTrans became interested at the urging of its archaeologist and because of previous problems with its responsibilities for maintaining and building roads in the area. Interview with Jan Cutts, Cultural Resource Specialist for the U.S. Forest Service, in Portland, Oregon (April 1, 1992). (38.) Memorandum and meeting notes of the Cultural Resource Standing Committee on August 21, 1991 (on file with author) [hereinafter Meeting]. All of the Native American communities were invited and encouraged to send representatives to this meeting. Id. (39.) Fact Sheet for the Cultural Resource Vandalism Standing Committee, draft (1991) (available from author) [hereinafter Fact Sheet]. (40.) Id. at 4. (41.) Id. at 1-3. (42.) Id. (43.) Meeting, supra note 38, at 4. (44.) This would include educating agency employees and the public about the values and traditions of Native Americans and other cultures in the area, and the sources of law available for enforcement. In this area, there are Native American, Spanish, and early pioneer sites which must be considered. According to Jan Cutts, while the primary focus of the committee is Native American, it will act upon all sites and reported cases of vandalism. Interview with Jan Cutts, supra note 37. (45.) Cutts, supra note 10. (46.) Fact Sheet, supra note 39, at 1. The size of this task force was limited to maintain security and ensure swift action. While the number of Native American representatives to allow was easily decided, just who those representatives would be was problematic. Non-Native American members were chosen based on their reason for wanting to be on the task force. For example, the NPS representative wanted to serve because of the proximity of Yosemite National Park, which lies just west of Mono County. The stated purpose of this committee is to:

provide a working group through which the issue of cultural resource site

disturbance and vandalism can be discussed and specific cases can be properly

handled. The goal of this committee is to meet in the event of the

discovery of a disturbed or vandalized site or grave, to determine the ownership

of the land on which the discovery was made, to determine the legal

jurisdiction for investigation, and to work together to assure that this process

is carried out as efficiently and effectively as possible. The involvement

of all local government agencies and all local Native American groups is

imperative for the organization of this committee because the protection of

cultural resources of the native people of this area should be a concern of

all land managers, land owners, and the indigenous people themselves. Id. (47.) Id. at 1, 4. (48.) Meeting, supra note 38. (49.) Id. (50.) Id. (51.) This has been one of the main sticking points for the Native American community. They do not feel confident of the ability of the non-Native American community to keep this information confidential. Because of this, they resisted attempts to incorporate site information on maps which are not kept in tribal custody. Id. (52.) Id. (53.) As of April 1, 1992, the standing committee had met only once. Interview with Cutts, supra note 37. (54.) Cutts, supra note 10, at 4. (55.) California v. Tischler, No. 9852 (Cal. App. Dep't Super. Ct. 1990). (56.) See, e.g., United States v. Ashford, No. 84-059 (D. Wyo. 1984). In that case, a mummified Shoshone was removed from a grave, placed in the back of a pickup and paraded through town on various occasions. Finally, it was hoisted up a flagpole where its legs fell off. Because the prosecution could not prove that the age of the mummy met ARPA's age requirement no ARPA violations were charged. See also Constance M. Callahan, Warp and Weft: Weaving a Blanket of Protection for Cultural Resources on Private Property, 23 Envtl. L. 1323 (1993). (57.) Note that in the Tischler case, the statute required that the cemetery be marked as to its nature. Cal. Pub. Res. Code Section 5097.99 (West Supp. 1992). If it had not been marked as a Native American burial area, there would have been serious doubts about the possibility of conviction. (58.) See Antiquities Act of 1906, 16 U.S.C. Sections 431-33 (1988). (59.) Marin County, Cal., Ordinance 1589 (codified in scattered sections of Marin Co. Code) (June 20, 1967). (60.) Karl E. Meyer, The Plundered Past (1977). (61.) Id. at 202-203. (62.) Marin County, Cal., Ordinance 1589, Section 1 (June 20, 1967). (63.) Id. at Section 2. (64.) Id. at Section 1. (65.) Id. at Section 3. (66.) Id. at Sections 2. (67.) Marin County, Cal., Ordinance 1589, Section 1 (June 20, 1967). (68.) Inyo County, Cal., Ordinace 245 (Nov. 5, 1973). (69.) Id. Section I(B). (70.) Id. at Sections III, IV. The ordinance requires that specific Native American communities must be contacted and given an opportunity for review. Id. at Section III. (71.) See, e.g., Oregon's Land Conservation and Development Commission's (LCDC) Goal 5. Or. Admin. R. 660-15-000(5) (1991). Goal 5 mandates the conservation and protection of historic areas, sites, structures and objects, and cultural areas. These include lands with sites, structures and objects that have local, regional, statewide or national historical significance and areas that are characterized by evidence of an ethnic, religious, or social group with distinctive traits, beliefs, and social forms. These goals are implemented through local and county ordinances. The ordinance is submitted to the LCDC which has effective veto power. If the ordinance does not comply with the goals, it is returned to the county. It may be reworked and resubmitted, but final enactment and enforcement is postponed until approval by LCDC. Id. (72.) Telephone conversation with Michael Rogers, Bishop Tribal Council, (Apr. 22, 1992). See supra Section II. (73.) See supra text accompanying notes 24-26. (74.) Note, for example, that there is a monetary requirement in the ARPA. 16 U.S.C. Section 470ee (1988 & 1992 Supp.). Contra INYO COUNTY ORDINANCE 245 (Nov. 5, 1973); Marin County Ordinance 1589 (June 20, 1967). (75.) Section 470ee (emphasis added). (76.) See Kristine Olson Rogers, Visigoths Revisited: The Prosecution of Archaeological Resource Thieves, Traffickers, and Vandals, 2 J. Envtl. L. & Litig. 47, 81 (1987). (77.) This model ordinance is based on numerous provisions taken from various states and counties. For a detailed list, see Kristine Olson Rogers & Elizabeth Grant, Model State/tribal Legislation and Jury Education: Co-venturing to Combat Cultural Resource Crime, in PROTECTING THE PAST 47-64 (George S. Smith & John E. Ehrenhard eds., 1991).

This Comment deals primarily with acts of grave site desecration and protection of Native American burial sites from such acts of destruction. However, protection of all cultural resources, sacred sites, and sacred objects is vital. This ordinance deals with complete resource protection, not just with Native American burial site protection. It is written to apply to counties or local governments; modification be necessary to comply with state law. (78.) The title used may change depending on county nomenclature. (79.) See 1989 Wash. Laws, Ch. 44; 1975 Wash. Laws, Ch. 134; 1988 Wash. Laws, Ch. 124; WASH. REV. CODE Section 27.53.030 (1991); Warm Springs Trib. Code Ch. 490 (1991). (80.) It is impossible to include a "laundry list" of materials and objects which individual tribes and groups may feel are worth including. See Warm Springs Tribal Code, infra note 81. (81.) It is important to adequately research the local ordinances which have been enacted by tribal authorities. It is in this manner that an ordinance can be custom tailored. See, e.g., WARM SPRINGS TRIBAL CODE 490.510. Here, the tribe has included a "laundry" list of cultural resource material. However, if the various tribal entities have elected to pick and choose what they consider to cultural resource material, deference should be given to their choices. (82.) See Warm Springs Code, supra note 81. (83.) Id. (84.) See Ariz. Rev. Stat. Ann. Section 13-3702 (1992); N.M. Stat. Ann. Section 18-6-9[D] (Michie 1991); Wash Rev. Code Sections 27.53.060 (1991). (85.) See Utah Code Ann. Section 63-18-27 (1991). (86.) See ALA. Code Section 41-3-1 (1991); UTAH CODE ANN. Section 63-18-25 (1991); Native American Graves Protection and Repatriation Act of 1990, Pub. L. No. 101-601, Section 8, 25 U.S.C. Section 3008 (1990).

There may be some Constitutional questions raised by a permitting section, especially regarding the "taking" of private property. A discussion of such takings is beyond the scope of this comment. For a good overview of potential takings problems, see, Ralph W. Johnson & Sharon I. Haensly, Fifth Amendment Takings Implications of the 1990 Native American Graves Protection and Repatriation Act, 24 ARIZ. ST. L.J., 151 (1992) (article deals primarily with implications of takings on Indian reservations). (87.) See OR. Rev. STAT. Section 358.945 (1989). (88.) See Idaho Code Sections ,67-4118, 67-4122 (1991); Kan. Stat. Ann. Section 74-5408 (1990). (89.) It is important to place the highest penalty in this section that is allowed by the state. There may be both dollar and time restrictions. (90.) See Or. Rev. Stat. Section 358.955 (1989); Archaeological Resource Protection Act (ARPA), 16 U.S.C. Section 470gg (1988 & Supp. 1992); 1989 Wash. Laws, Ch. 44.