Oregon's Senate Bill 61: balancing protection and privatization of cultural resources.
Archaeological research indicates that indigenous peoples first populated parts of Oregon more than 13,000 years ago.(1) Excavations near Malheur Lake in the Great Basin region of Oregon have uncovered sagebrush bark sandals, rabbitskin robes, nets, grinding tools, and weapons dating back more than 6,000 years.(2) While tribal communities thrived throughout the state, the area around The Dalles was a particularly active major trading center for the entire Northwest region.(3) During the summer months, as many as 22,000 people gathered to exchange goods and stock up on salmon from the abundant harvest.(4) Recent discoveries of Minnesota pipestone, Southwestern turquoise, Alaskan copper, and idols of apparent Mayan origin attest to The Dalles' vast trading network.(5)
Traces of the pervasive historical presence of native tribes in Oregon have proved tempting for artifact collectors. Valuable archaeological sites have been looted and Native American graves plundered for years.(6) When the passage of the Archaeological Resources Protection Act (ARPA)(7) in 1979 made it illegal to excavate or surface collect on federal lands, professional looters and hobbyists simply transferred their activities to state and private lands, where the dearth of laws protecting such sites enabled them to loot with near impunity.(8) Federal public lands are still targets, however. A recent study by the U.S. Forest Service reports that professional looters on federal lands have simply become more sophisticated in their methods of evading apprehension.(9) Although professional looters generally decimate a single site, the vast legions of casual collectors and weekend hobbyists wreak far more cumulative damage over larger areas.(10)
The effect of the loss of these historic and cultural resources cannot be underestimated. Fragile archaeological sites cannot be replaced, and much valuable information is lost to future study.(11) Aside from the objective scientific importance of these sites, however, damage to Indian burial sites, no matter how ancient, causes genuine grief in contemporary tribal members, who feel as strong a connection with ancient ancestors as with grandparents and great-grandparents.(12)
To add insult to this psychic injury, in Oregon, as in other states, prosecutors have had a very difficult time securing convictions against violators.(13) These difficulties stem from two different sources. The first is local sympathy towards corectors--many communities consider relic hunting a harmless recreational activity.(14) The problem this presents becomes particularly pronounced when artifact collecting in an area is so pervasive that it becomes impossible to pick an impartial jury.(15)
The second difficulty prosecutors face is proving the violation. In the past, Oregon law contained three major statutory loopholes that enabled violators to undermine the prosecutor's case. First, while the Oregon statutes allowed collecting on private land pursuant to the landowner's written permission,(16) the statute did not explicitly require prior written permission. Thus, violators were often able to obtain after-the-fact permission from corector-friendly landowners and thwart the prosecutor's case.(17) Second, the statute allowed selling or possessing Native American human remains or artifacts that had been removed from the soil by any means other than human action.(18) Thus, violators not caught red-handed in a trench could usually claim that natural forces had exposed the item on the surface.(19) Third, the statute allowed the retention of artifacts found inadvertently on the surface of the ground.(20) This provision acted similarly to the "other than human action" language. A violator could always claim to have stumbled across an artifact lying on the surface. The prosecutor would then bear the burden of disproving this statement.
Finally, apprehending violators is notoriously difficult. Proper surveillance on public lands is expensive, and state and federal agencies simply do not have the equipment or the personnel to monitor sites effectively.(21)
These multifarious difficulties caused Senate Bill 61 (SB 61) to be born. As originally drafted by the Oregon State Historic Preservation Office, sought to close the loopholes in the statute, curb vandalism, and conform state law to the federal requirements of the Native American Graves Protection and Repatriation Act (NAGPRA).(22) However, when the tribes of Oregon became involved in the drafting process, additional goals came to the forefront.
This Comment begins by examining the history of SB 61, comparing Oregon's prior cultural resources laws with state and federal legislative models, and identifying the goals that SB 61's proponents sought to achieve. The paper then follows SB 61 through the tortuous legislative process, and chronicles the concessions given and demands made as conflicting interests sought to ensure the Bill's passage without yielding core goals. Next, the Comment takes a critical look at the final product and its administrative miles. The Comment concludes by examining the successes and shortcomings of SB 61, discussing possible problems that may arise in its implementation, and suggesting additional measures to strengthen future protection of Oregon's archaeological and cultural resources.
A. Oregon's Cultural Resources Laws Prior to SB 61
Oregon's cultural resources laws are split into three different statutory sections. Laws protecting Indian graves are found in sections 97.740 through 97.760 of the Oregon Revised Statutes (ORS). Laws protecting archaeological sites and objects are located in ORS sections 358.905 through 358.955. The archaeological permitting process is set forth in ORS sections 390.235 through 390.237. These statutes now exist concurrently with the laws created by SB 61.
1. Grave Protection
Oregon's Native American tribes historically used many methods to inter their dead. Many tribal ancestors were buried in graves along with objects needed for their journey to the afterlife, ceremonially laid above ground in caves, or placed on raised platforms.(23) The Oregon legislature had not taken these different methods of disposition into account in the grave protection statute, which limited its protection to cairns and graves.(24) For example, the statute prohibited the sale or possession of human remains or artifacts taken only from a Native American grave or cairn.(25) This meant that collectors were free to sell or display in their homes human remains found in caves or otherwise above ground. The legislature thus left tribes powerless to protect the remains of their ancestors found in areas other than graves or cairns. This double standard was not only illogical, but clearly painful for the tribes.
Excavation of Native American graves or cainis required prior notice to the State Historic Preservation Office, and prior written consent of the appropriate Native American tribe.(26) Reinterment following the excavation was to be done at the archaeologist's expense under tribal supervision.(27) The statute also provided that where necessary to prevent "imminent destruction" of the burial site, an archaeologist was allowed to remove items for reinterment with only notice to the tribe, not tribal consent.(28) Because the Oregon legislature did not set out what constituted "imminent destruction," the phrase was not limited to destruction by natural means (such as by impending flood or mudslide). Tribal governments viewed this as a loophole for proceeding without tribal consent, and felt that private and state developers often abused the loophole providing notice only, claiming that destruction by a backhoe was imminent.(29)
The legislature arnended the statute in 1981 to allow tribes or tribal members to institute civil suits against violators.(30) Tribes could seek a variety of remedies: forfeiture of the human remains, burial objects, or any equipment used in the violation; punitive damages if the violation was willful; and even actual damages for emotional distress.(31)
2. Archaeological Statutes
Unlike the burial statutes, Oregon's archaeological statutes drew a sharp line between provisions that applied to state land and those that applied to private land. The statutes allowed excavations on private land and the subsequent possession or sale of any artifacts recovered, as long as the excavator obtained the landowner's permission.(32) The statutes did not place any restrictions on private landowners, who were free to excavate, sell, or even destroy any archaeological site found on their property.
The provisions for archaeological objects found on public land were only slightly more stringent. Excavating an archaeological site on public land required a permit,(33) Which the State Department of Parks and Recreation could issue after consulting with the affected Indian tribe and the Commission on Indian Services.(34) Tribes were unhappy with this procedure because they often received notice of a proposed permit and were given only ten days to respond.(35) Since many tribal governments meet only once or twice a month, they could not always respond within the tenday comment deadline.(36)
Selling or purchasing any items legally recovered from public land was prohibited unless a certificate of origin accompanied the item.(37) The certificate of origin's requirements varied depending on whether the item was recovered before or after October 15, 1983 (the date the law was enacted).(38) For items recovered after October 15, 1983, the certificate of origin had to specify the location where the collector found the item and state that the collector recovered the item in compliance with the statutory requirements.(39) For items recovered prior to October 15, 1983, the certificate of origin had to state only that fact.(40) The statute did not require a notarial certificate or other formal means of corroborating the veracity of the certification.
Violation of any of these provisions could be prosecuted criminally as a Class B misdemeanor(41) or civilly, with the state seeking forfeiture of the illegally obtained objects and any tools or equipment used in the violation.(42) Unlike the provisions for violations of the Native American grave statute, tribes could not institute civil proceedings--the statute authorized only the state to do so.(43) Similarly, the state received all forfeitures--the statute did not set forth any provisions for repatriation of the items to the appropriate tribe.(44)
As with the Native American grave statute, the archaeological statutes contained a large loophole: archaeological items found unintentionally on the surface of the ground could be retained for personal use.(45) As discussed in the Introduction, without direct evidence to the contrary, violators could always claim after the fact to have unintentionally discovered the item on the surface of the ground.
B. Legislative Models
The loopholes inherent in these statutes made prosecution difficult, and when proponents of change began drafting various versions of what later became SB 61, they looked toward several state and federal legislative models for guidance. This section examines these models chronologically.
1. Archaeological Resources Protection Act of 1979
Congress passed the Archaeological Resources Protection Act (ARPA)(46) in 1979 and subsequently amended it in 1988. Congress intended ARPA to replace the outdated Antiquities Act of 1906.(47) ARPA's jurisdiction extends only to federal and Indian lands.48 Its key provisions prohibit the removal or excavation of any archaeological resources on federal or Indian lands without a permit,(49) and prohibit the sale, purchase, or exchange of any archaeological resource removed from federal or Indian lands in violation of any state law or local ordinance.(50)
ARPA passed only after a great battle over the surface collection of arrowheads, as many legislators vehemently opposed punishing such behavior.(51) The final version of ARPA therefore contained pro-visions specifically exempting the surface collection of arrowheads from civil and criminal penalties.(52) However, collecting arrowheads from federal and Indian land without a permit remains prohibited,(53) and any arrowheads picked up from the ground without a permit are subject to forfeiture.(54) To underscore this provision, most federal land management agencies have regulations that protect arrowheads.(55)
2. Revised Code of Washington
Prior to 1989, most state cultural resources laws maintained the sanctity of private land by placing few, if any, restrictions on what a landowner could do with cultural resources found on or excavated from the landowner's property.(56) The Washington state legislature finally broke this public/private land barrier in 1989 when it passed sweeping amendments to its cultural resources statutes.(57) Not only does the law now require a permit for removing or excavating archaeological resources on both public and private lands,(58) but the legislature also expanded the felony provisions prohibiting the knowing(59) removal of remains or artifacts from a grave to apply to the defacement or removal of glyptic records.(60)
The amended statute expanded the role of the tribal governments by requiring the Director of Community Development to work with the tribes in the development of permit guidelines.(61) Before a permit can be issued, the Director must forward a copy of the permit to the affected Native American tribe and allow it thirty days to respond.62 An excavation may not begin until a permit is issued.63
As with the old or new Oregon statutes, Washington allows the removal of artifacts found exposed on the surface of the ground but limits permissive removal to those items and places that are not historic archaeological resources or sites.(64) Since the statute broadly defines archaeological site" as any geographic locality "that contains axchaeological objects"(65) and defines 'archaeological object" equally as broadly,(66) apparently, through rather circular logic, wherever one finds an artifact, the ground beneath it is by definition an archaeological site. Therefore, the Washington state statutes do not appear to permit arrowhead collecting.
3. Native American Graves Protection and Repatriation Act
Signed into law by President George Bush on November 23, 1990, NAGPRA(67) gives tribes the power to reclaim objects central to their heritage.68 NAGPRA divides important cultural items into four main categories henceforth referred to as "NAGPRA items"): human remains, funerary objects, sacred objects, and objects of cultural patrimony.(69) "Funerary objects" are divided into two subcategories: "associated funerary objects,"(70) which are items that were buried with human remains and remained nearby, and "unassociated funerary objects,"(71) Which are items that were originally buried with human remains but were separated from them at some point. NAGPRA defines an "object of cultural patrimony" as an object so central to the culture of a tribe that it cannot be alienated from the tribe, and no single tribal member has the power to pass title to the object.72 The proposed regulations cite Zuni War Gods and the Confederacy Wampum Belt of the Iroquois as examples of objects of cultural patrimony.(73)
NAGPRA requires museums receiving federal funding to conduct inventories of all NAGPRA items in their collections in preparation for their ultimate return to the most appropriate tribe.74 NAGPRA also requires that all NAGPRA items found on federal or tribal lands in the future be returned to the appropriate tribe.75
When NAGPRA items are inadvertently discovered on federal or tribal lands, the discoverer must take reasonable steps to protect the items, notify the federal land manager in writing, and cease all activity in the area for thirty days.76 Excavation may occur only if the excavator meets four criteria: the excavator must: 1) obtain an archaeological permit under ARPA; 2) consult the most appropriate Native American tribe (unless the excavation will take place on tribal land, in which case the excavator must receive tribal consent); 3) determine ownership of the excavated objects pursuant to the hierarchy set forth in section 3002(a); and 4) obtain proof of the tribal consultation or consent.(77)
4. Columbia River Gorge National Scenic Area Management Plan
Following the designation of the Columbia River Gorge as a National Scenic Area in 1986,78 the states of Oregon and Washington set up a commission to create a management plan that was sensitive both to the abundance of cultural resources in the area and to the various local, state and tribal governments involved.79 The Columbia River Gorge Commission adopted a final plan (Plan) on October 15, 1991.80
The Plan creates a Cultural Advisory Committee to monitor cultural resource protection and work with tribes, local governments, landowners, and applicants for proposed projects.81 Anyone who finds human remains during the course of any project must cease all activity and notify all proper governments.(82) If cultural resources are found during construction activities, all development activity shall cease while the resources are inventoried and evaluated.83
Most importantly, the Plan allows tribal input in determining whether a site is culturally significant.(84) Since what many Native Americans consider significant to their culture is not always seen in the same light by non-Native Americans, this provision empowers tribes to protect sensitive areas and objects that non-Native Americans might otherwise fail to protect.85
5. National Historic Preservation Act Amendments of 1992
Congress amended the National Historic Preservation Act of 1966 in 199286 to give Native American and Native Hawaiian groups a greater say in the determination of sites eligible for inclusion in the National Register of Historic Places. The Amendments require State Historic Preservation Offices to cooperate with tribes in the evaluation and preservation of historic properties(87) and require them to take tribal values into account when making such evaluations.88 The amendments list specific properties with traditional religious and cultural importance to Native Americans as sites eligible for possible inclusion in the National Register.89
Tribes with approved preservation programs may assume the functions of the State Historic Preservation Office for all sites located on tribal lands.90 Tribal governments and state and federal agencies may also withhold from public disclosure the location of traditional religious sites.91 Finally, the amendments add a tribal member to the Advisory Council on Historic Preservation to ensure that the interests of tribes are properly represented.(92)
C. Issues Hoped To Be Resolved in SB 61
Three primary groups came head to head in the process of creating and adopting Senate Bill 61. The Oregon State Historic Preservation Office (SHPO) drafted the first version of the Bill in response to a mandate from the previous legislature that Oregon's laws be conformed to NAGPRA.(93) SHPO's goals in drafting the bill were to carry out this mandate, resolve conflicts with the treasure trove statutes, curb commercial looting on public lands, update the archaeological permitting process, and address issues relating to archaeological sites and the determination of their significance.(94)
After SHPO drafted the first bill, the nine federally recognized Oregon tribes became involved.95 Tribal concerns were much broader than those of SHPO, and comprised five basic goals: 1) To establish that NAGPRA items were the property of the appropriate tribe; 2) to ban collecting on state lands, and sharply curtail collecting in general;96 3) to establish a cultural resources co-management scheme with the state government; 4) to ensure that all burial items are protected, even if separated from the associated human remains; and 5) to ensure that all artifacts are kept within the state.(97) The Klamath Tribes were additionally concerned that violators be prosecuted consistently throughout the state, and not treated leniently in collector-friendly jurisdictions.98
Opponents of the bill were primarily surface collectors who did not want to see what they consider to be a legitimate hobby criminalized or curtailed in any way. Many hobby collectors feel that they make an important contribution to the field of archaeology, and insist that the archaeological record will suffer without their participation.(99) Collectors voiced additional concerns that if hobby collecting was prohibited, current private collections would be confiscated and the possessor branded a criminal.(100)
III. The Legislative PROCESS
Historically, Oregon tribes have had difficulty getting legislation passed that protected their interests to any great extent.(101) This is due in part to the number of governments involved: each of Oregon's nine federally recognized tribes is a sovereign state, with its own tribal laws and own tribal agenda.102 In order to present anything coherent to the state legislature, the tribes generally must all agree on a unified platform. The difficulty in getting nine sovereign states to agree is exacerbated by the great distances between the tribes--only rarely are representatives of all nine tribes able to meet. To assist the tribes in their dealings with the state government, the legislature created the Commission on Indian Services in 1975.(103) Although the Commission has assumed the responsibility of coordinator for issues involving cultural resources protection, each of the nine tribes has a different perspective on cultural resources, and forming one general "tribal" perspective is difficult. The multiplicity of tribal points of view makes resolution of disputes with other state agencies all the more complex.
A. The 1991 Legislative Session
The difficulties encountered in attempting to balance the interests of several different governmental entities is illustrated by the unsuccessful attempt in 1991 to revise Oregon's cultural resources statutes.
1. Senate Bill 225
Following the unsuccessful prosecution of a treasure hunter who removed valuable artifacts from an Oregon shipwreck and took them to California, SHPO, the Division of State Lands, and the Oregon Department of Justice joined forces to strengthen Oregon's archaeological protection and treasure trove statutes.(104) Focusing on closing the loopholes that allowed the treasure hunter to go free, the three agencies drafted Senate Bill 225, which amended the State treasure trove and archaeological statutes to mandate that all archaeological objects over fifty years old found on state lands were the property of the state,(105) and that the State held title to all such objects.(106)
The Division of State Lands notified the Commission on Indian Services about the proposed bill less than one week before the bill was introduced into the legislature.(107) Douglas Hutchinson, Executive Director of the Commission, shocked by the bill's lack of sensitivity to tribal interests in archaeological objects as well as by the fact that the Commission had not been consulted as required by statute,(108) informed the tribes.(109) However, by the time the tribes were able to meet to discuss the issue, the bill had already been sent to committee.(110) The tribes had been planning to lobby for changes in the archaeological statutes to reflect greater deference to the tribes' cultural claim to these items, and the bill's bald assertion that the State of Oregon held title to all archaeological objects found on State lands appeared to the tribes to be a betrayal.(111) The Division of State Lands and SHPO were taken aback by the tribes' outrage. The state agencies had been so focused on the shipwreck issue that they had forgotten that tribal issues would be involved.(112) In any event, all parties involved decided that the issue was so confused and controversial that they would withdraw the bill from consideration.(113)
2. House Bill 3464
Midway through that same legislative session, former Oregon Governor Victor Atiyeh requested that a bill be drafted which would amend Oregon's statutes to conform with the recently passed Native American Graves Protection and Repatriation Act.(114) The bill was passed and signed into law on July 18, 1991.115 House Bill 3464 provided some of the impetus that eventually resulted in the passage of SB 61.
B. The 1993 Legislative Session: SB 61 Begins as Four Separate Bills
Following the Senate Bill 225 debacle, the tribes and the Commission on Indian Services resolved to change Oregon's statutes to reflect tribal interests. SHPO remained concerned about the treasure trove statute and was now under legislative mandate to amend state laws to conform to NAGPRA. Thus, SHPO drafted two archaeological protection bills, SB 60 and SB 61, while the Commission on Indian Services drafted its own proposed changes, embodied in SB 495 and SB 497.
1. Senate Bill 60
Drafted by SHPO to address the interests of the tribal governments, SB 60 was a strong bill intended to curb looting and give tribal governments more input into the archaeological permit process. It proposed four major changes to the existing statutes: 1. Added a definition of "archaeological significance" to take into
account a tribe's determination of what is significant;(116) 2. Closed a loophole by expanding the prohibition on the sale of
archaeological items to include a prohibition on "trade, barter,
and exchange";(117) 3. Required notification of the appropriate tribe prior to an excavation
on private land;(118) and 4. Repealed ORS section 358.915, which allowed inadvertent finds
to be retained for personal use.(119)
2. Senate Bill 61
As an alternative to SB 60, SHPO drafted SB 61, which focused primarily on conforming Oregon's statutes to NAGPRA. The proposed SB 61 added the definitions of all the NAGPRA items,(120) and changed all references from "grave" to "burial," a much broader term that was defined to encompass any physical location where human remains were deposited as part of a death rite or ceremony.(121) Proposed SB 61 also prohibited the sale or public display of NAGPRA items and mandated that they be returned to the most appropriate tribe.(122)
If human remains were discovered during excavations of an archaeological site on private property, the bill required the finder to notify the State Police, SHPO, and the Commission on Indian Services.(123) If a sacred object or object of cultural patrimony was found during an archaeological investigation on public or private land, the finder must report the discovery to SHPO and the most appropriate tribe, even if the finder had obtained a permit for the excavation.124 Finally, the bill broadened the "imminent destruction" provision of the previous statute by allowing an archaeologist to proceed with notice to a tribe and not tribal consent only if the removal for reinterment was for the purpose of aiding a tribe "M" the recovery of human remains and funerary objects.(125)
3. Senate Bill 495
Drafted by the Commission on Indian Services to best represent the interests of the tribes, SB 495 would have repealed ORS 358.915 (the inadvertent discovery exemption),126 and changed all references from "grave" to "burial site."(127) To counter the existing law that made all archaeological objects located on public land the property of the state, SB 495 made it a rebuttable presumption, which could be challenged by the tribes.(128) SB 495 also required certificates of origin to be notarized and to include more detailed information about both the object and the possessor.(129)
4. Senate Bill 497
Also drafted by the Commission on Indian Services and designed to address the grave protection and archaeological permitting statutes, SB 497 required tribal approval before any archaeological permit could be issued on public lands,130 as well as before the Oregon State Museum of Anthropology could arrange for disposition of cultural items.(131) It also provided a mediation or arbitration procedure to settle disputes concerning the permit process or the ownership of archaeological items.(132)
C. Consensus Bill 61--The Senate Phase
All four of the bills were kept together and sent to the Senate Judiciary Committee.(133) However, prior to the Committee's first hearing, the tribes determined that they would stand a much better chance of getting one bill through the legislature than four.(134) The tribes also wanted to resolve the inconsistencies existing in the bills.(135) Six of the nine tribes met with SHPO and the director of the Oregon State Museum of Anthropology to work out a consensus bill.(136) On the morning of the first hearing before the Senate Judiciary Committee, the tribes presented to the Committee a consensus bill, caused SB 61 but made up of elements from all four original bills. Apparently fearful that certain provisions were too controversial and might possibly endanger the bill's chances for passage, the tribes allowed several key provisions to be deleted.(137) Among these were the repeal of ORS 358.915 (the exemption for inadvertent discovery), reinstated in SB 61 but limited to artifacts other than NAGPRA items;(138) and the deletion of the additional requirements for the certificate of origin, leaving in place only the requirement that the document be notarized.(139)
The Senate Judiciary Committee held public hearings on March 31 and April 28, 1993. Official representatives and members of six tribes(140) testified before the Committee and urged them to support the new SB 61. The tribal members spoke movingly of the problems they had experienced in the past with grave desecrations and callous treatment of their ancestors at the hands of developers. They also impressed upon the Committee that Indian culture is not a thing of the past to be collected and hoarded, but is alive in vibrant communities still practicing their culture and looking forward to a thriving future.(141)
Surface collectors also participated in the hearings, voicing their opposition to the bill. While asserting that they did not condone the looting of burial sites, they argued that collecting artifacts was a way of life, and that collecting of artifacts in fact helps to save important pieces of history from destruction.(142) One of them brought up the Malheur Lake incident,(143) justifying the looting of the site by stating that if the bone artifacts had not been picked up from the surface of the newly dried lakebed, they would have turned to powder.(144) Two of the collectors asserted that many artifacts simply end up in boxes in museum basements, and that denying people the opportunity to collect for themselves would close off history from the public, essentially making archaeology a "secret science" known only to insiders.(145) Finally, the collectors expressed outrage that the passage of SB 61 would turn them and other "law-abiding citizens" who have been legally surface collecting for years into criminals.(146)
Members of the professional archaeological community testified in favor of the consensus bill. An anthropology professor lauded the bill's attempt to crack down on the sale and exchange of archaeological artifacts, stating that one of his previous excavations had been looted by a pothunter who sold the artifacts to support a cocaine habit.(147) He further stated that the illicit trade in artifacts is a serious problem in Oregon and that Portland is a major center for the export of artifacts.(148) In response to a question from the Committee, the professor admitted that casual collectors are sometimes helpful in the discovery of archaeologically important sites, but felt that in the aggregate, casual collectors do more harm than good.(149)
On April 28, 1993, the Senate Judiciary Committee voted unanimously in favor of the consensus bill, which remained largely unchanged from the bill submitted by the tribes. Only two provisions of the consensus bill had been deleted: an amendment allowing a tribe to certify qualified archaeological technicians, and a provision allowing tribes with a superior claim of possessory rights to curate items instead of allowing the Oregon State Museum of Anthropology to do so.(150) The Director of the Oregon State Museum of Anthropology successfully lobbied the Committee to change the language to allow the museum to transfer permanent possessory rights to individual tribes.(151) By the time the bill left the Committee, if had been modified so that it:
1. No longer stated that all archaeological objects on public land were the property of the state, but instead placed such objects under the stewardship of the state.(152)
2. Amended the certificate of origin requirements to place all objects removed from public land after 1983 under the stewardship of the state as Well.(153) (This language had been adopted from SB 60.
3. Closed a loophole by making it illegal to "trade, barter or exchange" archaeological objects without permission from the landowner or a certificate of origin.(154) (Adopted from both SB 60 and SB 495.
4. Required that in the future affected tribes must give consent before an archaeological permit can be issued.(155) (Adopted from SB 497.
5. Mandated a dispute resolution procedure.(156) (Adopted from SB 497.
6. Adopted the definition of "archaeological significance" that included tribal determination of significance.(157) (Adopted from SB 60 and SB 495.
7. Allowed inadvertent finds to be retained for personal use, as long as the object found was not a NAGPRA item.(158)
8. Required tribal approval before the Oregon State Museum of Anthropology could arrange for disposition of cultural items, and mandated that archaeological objects be curated as close to the area of origin as possible.(159) (Adopted from SB 497.)
9. Changed the definitional age of an archaeological object from seventy-five to fifty years old in order to bring the definition in line with federal age requirements.(160)
10. Required that the certificate of origin be notarized.(161)
11. Allowed civil forfeiture of archaeological items to the appropriate Indian tribe.(162)
When the amended bill (now referred to as the A-Engrossed Senate Bill 61") went before the full Senate on May 18, 1993, it passed by a vote of twenty-six to four.(163)
D. SB 61--The House Phase
The A-Engrossed Senate Bill 61 then moved to the House Committee on General Government, where the tribes anticipated much stronger opposition because the House had a history of opposing any restrictions on land Use.(164) The tribes were therefore prepared to make even further concessions to ensure the bill's passage.(165)
The first House Committee hearing took place on June 22, 1993 and began with the testimony of Carroll Howe, former State Representative from Klamath County and an amateur collector of artifacts. Former Representative Howe testified at length about his own artifact collection and the significant donations he had made to state museums.(166) He stated that he would only support the bill if certain changes were added to protect surface collection, and presented the Committee with proposed amendments.(167)
After testimony in favor of the bill by tribal members, the Committee grilled SHPO Deputy James Hamrick, Tribal Attorney Michael Mason (of the Confederated Tribes of the Grande Ronde Community), and Tribal Archaeologist Scott Stuemke (of the Confederated Tribes of the Warm Springs Reservation) concerning the effect of the legislation on private rights.
Representative Del Parks from Klamath County announced that a large proportion of his constituents was surface collectors, and the tenor of his questions indicated that he clearly favored protecting their interests, at least to a certain extent.(168) Committee members repeatedly asked the witnesses to define exactly what would constitute an object of cultural patrimony, voicing conern that a tribe could claim anything, including arrowheads and pottery shards, as objects of cultural patrimony.(169) The tribes countered by asserting that they were not concerned with pushing for restrictions on arrowheads.(170) Assertions such as these puzzled Representative Ken Baker of Portland, who was astonished that the tribes were voluntarily making so many concessions.(171) He asked tribal members several times why they were not demanding more protection, and repeatedly argued that protection should be extended to private land.(172) The tension between these competing interests--protection of surface collecting versus greater protection of cultural resources--provided for a lively debate throughout the hearing.
When the Committee met again on June 30, 1993 for the work session to hammer out the final details of the bill, several concessions had been proposed. The bill allowed surface collection accomplished without using tools and explicitly condoned collecting arrowheads from the surface of the ground. To counteract these and other provisions favorable to surface collectors and private property owners, Representative Baker suggested near the end of the work session that an archaeological permit be required for excavations on private land as well as public land.(173) The historical sanctity of private property generated much discussion about the dangers of interfering with private property rights.(174) The Committee members debated this for some time, some voicing concern that farmers churning up archaeological objects with their plows would be accused of violating the statute and thereby be subject to criminal charges.(175) Representative Parks suggested that the permit requirement pertain only to "knowing and intentional" excavations, and the Committee was satisfied and allowed his amendment.(176) The bill passed the Committee unanimously shortly thereafter.(177)
As it left the House Committee on General Government, the revised bill (now known as the "B-Engrossed Senate Bill 61")(178) contained the following additions to and changes from the Senate version:
1. Revised ORS 358.915 to allow the retention for personal use of archaeological objects found inadvertently on public or private land only if the object had been uncovered by the forces of nature. The bill retained the exemption for NAGPRA items.(179)
2. Explicitly allowed the surface collection of an arrowhead on state or private land as long as it could be accomplished without the use of a tool.(180) (As we have seen under ARPA, surface collection of even an arrowhead is prohibited on federal and tribal lands.
3. Made it prima facie evidence of a violation for a person to be found with an archaeological object, a tool for uncovering, and no permit.(181)
4. Explicitly stated that baskets, arrowheads, and stone tools are not objects of cultural patrimony.(182)
5. Required a notarized certificate of origin for objects removed from private land.(183)
6. Added a provision for state compensation to a private land owner for any loss of use of property under this statute.(184)
7. Reworked the arbitratiorl/mediation procedure.(185)
8. Allowed private collectors to keep their artifacts (even if acquired after 1983), as long as the items were curated properly and made available for research.(186)
9. Required an archaeological permit for knowing and intentional excavations on private land.(187)
The B-Engrossed Senate Bill 61 passed the full House of Representatives on July 12, 1993 by a vote of fifty to ten.(188) The House sent the bill back to the Senate for concurrence, and it passed 26-3 on July 16, 1993.(189) Governor Barbara Roberts signed the bill into law on July 28, 1993, and it went into effect on November 4, 1993.(190)
E. Results of Rulemaking
The rulemaking process involved several different entities: the tribes, SHPO, the Commission on Indian Services, the Dispute Resolution Commission, the Association of Oregon Archaeologists, and the Oregon State Museum of Anthropology.(191) Private developers and amateur collectors were also active at the rulemaking healings and in the notice and comment arena.(192) These parties developed rules describing the dispute resolution process and rules creating the procedure for obtaining archaeological permits.
1. Dispute Resolution, Rules
The Parks Commission adopted the rules for dispute resolution on April 14, 1994.(193) The rules became effective on April 22, 1994.(194) These rules create a process for settling disputes concerning the issuance of permits, the adequacy of curation facilities, or the disposition of human remains or funerary objects.(195)
When a dispute arises, the parties must first notify SHPO in writing(196) and then begin informal negotiations in an attempt to reach agreement.(197) Although any party can terminate negotiations at any time and proceed directly to mediation,(198) the rules suggest that the parties should try to resolve their differences by negotiation for at least thirty days.(199) Should negotiation fail, the parties may then move to mediation.(200) The rules require that each entity with permit approval authority(201) Consult with the Dispute Resolution Commission to compile and maintain a list of potential mediators.(202) After the parties notify SHPO in writing of their request to mediate, SHPO will provide the disputing parties with a list of at least three potential mediators, including their credentials.(203) The parties then have ten days to notify SHPO which of the proffered mediators would be acceptable(204) and five more days to agree on a mediator acceptable to all parties.(205) Once chosen, the mediator will help the parties prepare for mediation by setting forth, among other things, who will be involved in the mediation process, which issues are to be mediated, an estimated completion date, and an understanding of what will constitute agreement between the parties.(206) In deciding what will constitute an agreement between the parties, the mediator will allow adequate time for each party's decision-making body to ratify any tentative agreement.(207)
If mediation fails, the parties must notify SHPO in writing and proceed to arbitration.208 The arbitration panel consists of one member from each of the following entities: SHPO, the Commission on Indian Services, the Oregon State Museum of Anthropology, the tribes, and the Dispute Resolution Commission.(209) The panel will establish the framework for how the arbitration is to proceed,(210) and its final decision may be appealed to the state courts.(211) Any party who refuses to participate in the mediation or arbitration proceedings forfeits the right to approve or set conditions on the permit application.(212)
2. Archaeological Permit Rules
SHPO commenced work sessions for the rules setting forth the procedure for obtaining an archaeological permit on February 9, 1994.(213) After many revisions, the Parks Commission adopted the final version of the permit rules on 3, 1995.(214) The rules address the requirements for obtaining a permit to excavate on public land separately from those for private land.(215) With a few key differences, the private land permit follows most of the procedure for public land permits.
No person may excavate, alter, or commence an exploratory dig on an archaeological site on public lands without first obtaining a permit.(216) Only qualified archaeologists(217) are eligible for archaeological permits.(218) Thus, anyone seeking to develop on such a site must employ an archaeologist in order to quaulify for a permit. After SHPO receives a permit application accompanied by the required documentation,(219) it will forward the permit information to the appropriate tribe, the land. manager, the Commission on Indian Services, the Oregon State Museum of Anthropology, and the applicable local government.(220) The informed entities will have thirty days to comment on the permit application, making objections or suggestions for conditions to SHPO.(221) If the archaeological site is associated with a prehistoric or historic Native American culture, the permit applicant must consult directly with the appropriate tribe during the thirty-comment period.(222) The consultation must be satisfactory to the tribal governing body and shall provide for, among other things, tribal monitoring of the project.(223)
The rules allow a person who discovers an archaeological site during construction to be granted an expedited consultation process if the normal thirty-day consultation would result in extreme economic hardship or if it would create an undue risk to public health or safety or an undue threat to the site.(224) "Extreme economic hardship" will be determined by evaluating several factors, including the importance of the construction project, the additional costs of the delay, and whether the person claiming hardship should have anticipated the need for a permit.(225) However, expedited consultation is not available if the appropriate Native American tribe or land manager objects.(226) No permit will be valid without the approval of both the appropriate tribe and the land manager.(227)
The permit process for excavation on private lands is largely the same as that for public lands,(228) except that no permit is required for exploratory excavation on private land.(229) The rules for private land mirror the statute by providing exemptions for the unintentional discovery of archaeological objects exposed by the forces of nature arid arrowheads that can be collected from the surface of the ground without the use of a tool.(230)
Any dispute arising from an application for a permit for either public or private land will be resolved according to the dispute resolution procedure.(231)
A. Qualified Successes
SB 61 is significant first and foremost for including tribes as co-managers of cultural resources in Oregon. This has been accomplished by requiring tribal consent before an archaeological permit can be issued and by taking tribal values into account when determining whether a site is archaeologically significant.
Requiring the state to take a stewardship role in the management of cultural resources is a positive step towards providing cultural resources with the protection that they are due. While it might appear at first glance that stewardship is still a form of ownership, the tribes are pleased that the state has taken upon itself a role of responsibility.(232) Stewardship implies that the state, in its role as responsible caretaker of all archaeological resources on public lands, must diligently prosecute violators, ensure that the proper precautions are taken in state and municipal projects, arrange for necessary excavation and reburial, provide funds for the proper curation of artifacts on tribal lands, and assist with training tribal personnel in proper curation techniques.(233) Finally, extending protection of cultural resources to private land is a great step forward in recognizing that some objects are so central to a tribe's culture or the state's history that they transcend the bounds of private ownership.
The statute still retains a large loophole for collectors. Even with the exemption of NAGPRA items, a collector is still legally allowed to retain for personal use an item found on the surface of the land, as long as it was uncovered by the forces of nature.(234) Some tribal representatives believe that the prima facie evidence clause has been written broadly enough to include a sharp stick(235) or even the toe of a boot(236) as a "tool." However, because "tool" was not defined in rulemaking, it remains to be seen how stringently the statutory language will be interpreted. In addition, the periodic rise and fall of Malheur Lake and the constant carving out of streambeds by Oregon waterways are forces of nature that uncover archaeological sites on a fairly regular basis.(237) Because artifacts are frequently uncovered by the forces of nature, the loophole is actually larger than it might appear.
Finally, SB 61 does little to strengthen enforcement of statutory violations. Aside from the prima facie evidence clause, which, as discussed above, may be weakened if the word "tool" is strictly construed, Oregon's cultural resources protection laws are no more stringent with violators than before. The penalty for violating the archaeological statutes remains a Class B misdemeanor,(238) While the penalty for violating the Native American burial statutes remains a Class C felony.(239) Furthermore, the laws do not mandate greater surveillance on Oregon's vast public lands. Most importantly, without a comprehensive statewide program to educate Oregonians about the importance of cultural resources, it is likely that a large portion of Oregon's population will continue to remain sympathetic to surface hunters, and the difficulty in suppressing their activities and finding impartial juries will continue.
C. Proposals to Supplement SB 61 and Further Strengthen Oregon's Cultural Resources Laws
While the tribes have clearly gained ground in Oregon and have strengthened their position with respect to the determination of their cultural resources, there are still further steps that can be taken to deter vandalism, pothunting, and wanton development. First, violation of the archaeological and Native American burial statutes should be deterred by more stringent penalties and harsher forfeiture provisions. Unlike most hobby collectors, professional looters are motivated neither by a desire to learn nor by a respect for past cultures, but instead by a base venality that is clearly undeterred by the knowledge that they are breaking the law.(240) The current penalty for the violation of Oregon's archaeological protection laws is merely a misdemeanor carrying a fine of up to $2,000(241) and a sentence of up to six months.(242) As professional looters become more organized and their operations more sophisticated, such a paltry penalty is unlikely to be a deterrent, particularly as the foreign market demand raises the value of looted items. Violation of the archaeological protection statutes should be increased to a felony, and the possible fine and sentence ranges raised dramatically.
In addition, a comprehensive statewide effort to educate Oregonians about the importance of leaving archaeological sites intact should be designed and implemented.(243) As the success of efforts to educate school-children concerning environmental awareness becomes increasingly clear, proponents of cultural resource protection should be encouraged to begin teaching the state's children to be sensitive to cultural resources and to continue stressing the importance of leaving such sites undisturbed.(244) Adult education can also be encouraged by setting up volunteer patrols over lands particularly susceptible to illegal excavation, and by encouraging hikers and campers to map their finds and report back to local land managers, rather than removing the items from their historical context. The Bureau of Land Management has already created volunteer programs to report discoveries and disturbances to BLM field offices.(245) While changing people's attitudes toward surface collecting will not occur overnight, a long-term program of education should prove a sound basis for successful resource management in the future.
Similarly, private landowners should be encouraged to leave intact archaeological sites on their property. Instituting a program similar to the National Register of Historic Places can not only give landowners pride in the history of their property, but, when coupled with property tax breaks, can also prove an effective incentive for participation. Kentucky successfully instituted such a program through the Kentucky Heritage Council, offering membership perks in exchange for property owners' voluntary restriction on the use of their property.(246) However, to encourage participation, the Council allows members to withdraw from the program if they no longer desire to abide by the restrictions.(247) Since Oregon already requires that private landowners obtain an archaeological permit before disturbing a site, the possible tax benefits may outweigh any additional restriction on the use of the property.
The certificate of origin required for the purchase, sale, barter or exchange of any archaeological object should be required to contain more information. A detailed description of where the item was originally found as well as a list of the prior possessors of the object should be mandatory. While setting up a single statewide database to register each object would be costly and complex, requiring artifact owners to report this information to designated museums, universities, or tribes would enable already existing research programs to gain valuable information without extra field work, and would also aid tribes, archaeologists, and educators in attaining a more comprehensive view of Oregon's past.
As with the Washington statute, Oregon should require that an archaeological permit be prominently displayed at each archaeological site at all times. Part of the archaeological permit process should also require that a tribal representative be present during all excavations.
Finally, archaeological permit fees should be raised and the proceeds placed in a fund to be used solely for the protection of cultural resources. These funds could help tribes build museums so that they can arrange for curation of their cultural items on their tribal lands,(248) and could also be used to purchase sensitive archaeological sites and assist in funding civil prosecutions.
There is no denying that the passage of Senate Bill 61 represents a great step forward in the recognition that tribal governments have the right to determine the disposition of items central to their cultural heritage. Such recognition was long overdue, as was the breaking of the barrier between public and private lands. However, these recent changes are still only a first step, and a great deal more can be done to strengthen Oregon's cultural resources protection laws. Stricter penalty provisions should be instituted to deter professional looters, and statewide education programs should be set up to teach hobby and surface collectors the importance of leaving artifacts in their historical context. Registry programs can encourage private land owners to appreciate the historical and cultural value of having a site on their property, and artifact owners should be encouraged to add to the state's historical record by reporting detailed information regarding the original location of their artifacts to archaeological research programs at universities and museums.
These proposals should be seriously considered not only as a supplement to SB 61, but also as a gap-filler for any holes left in the bill or created through the rulemaking process. Since SB 61 allows the collection of arrowheads from the surface of the ground as well as the collection of any artifact exposed by the forces of nature, education of casual collectors is a crucial part of the attempt to halt the legal carrying off of Oregon's past. Similarly, if the regulations setting forth the permit process end up reflecting the developers' preference for a short time frame, an educated public can be a powerful tool for influencing industry behavior and may perhaps be able to persuade developers to wait a few more days for a tribal council to meet.
Concerns that museums store boxes of artifacts in their basements, out of sight of the public, can be soothed by using the proceeds from raised permit fees to increase the number of tribal museums and thereby make such artifacts more accessible. Making it possible for each tribe to display its cultural heritage in its own way on its own tribal lands will serve the dual purpose of forcing non-Native visitors to acknowledge and respect that the culture that produced these "relics" is still alive and prospering, as well as giving the tribes a much-needed sense that their history is still theirs and has not been completely squirreled away in the basements and dens of non-Native relic hunters.
The passage of SB 61--while significant--is just the first step in creating a comprehensive framework for the protection of cultural resources in Oregon. As the strengths and flaws of Oregon's newly amended archaeological protection and Indian grave protection statutes become clear, proponents of cultural resource protection must be prepared to find ways to continue to strengthen protection of these invaluable sites and objects. Only through the appreciation of others' cultures can we truly appreciate our own, and only through the understanding of our shared past can we understand ourselves. (1) C. Melvin Aikens, Archaelogy of Oregon 269 (1993). (2) C. Melvin Aikens & Marilyn Couture, The Great Basin, in The First Oregonian 21, 25 (Carolyn M. Buan & Richard Lewis eds., 1991). (3) Dean Baker, Mirrorlike Columbia Fails to Reflect Past at The Dalles, Oregonian, Sept. 2, 1993, at 8 (South Metro Neighbors Section). (4) Kristine Olson Rogers, Native American Collaboration in Cultural Resource Protection in the Columbia River Gorge National Scenic Area, 17 VT. L. Rev. 741, 746 (1993). (5) Baker, supra note 3, at 8. (6) It has been estimated that nationwide between 100,000 and two million Native American remains have been dug up and put on display in museums and as tourist attractions. Jack F. Trope & Walter R. Echo-Hawk, The Native American Graves Protection and Repatriation Act: Background and Legislative History, 24 Ariz. ST. L.J. 35, 39 (1992). Such callous disregard for Native American burials appears to be almost endemic to the Anglo-European culture: the first exploring party from the Mayflower reported that they raided a burial site, "brought sundry of the prettiest things away with us, and covered up the corpse again." Id. at 40. (7) 16 U.S.C. [subsections]470aa-470mm (1988 & Supp. V 1993). (8) Lynne Sebastian, Looting and the Law: The View from New Mexico, Archaelogy, Nov./Dec. 1990, at 52, 52; see also Rusty Middleton, Pothunters Destroy Archives of Columbia Gorge Culture, Oregonian, June 30, 1993, at B7 (discussing some of the difficulties of prosecuting illegal looters on state and federal land). Pothunter is a derogatory term for someone who illegally loots archaeological sites. (9) Carl Davis et al., U.S. Forest Serv., U.S. Dep't of Agriculture, Pub. No. PNW-GTR-293, Vandalism: Research, Prevention and Social Policy 197-98 (1992); see also Middleton, supra note 8, at B7 (discussing shifting tactics of illegal looters). (10) Martin E. Meallister, Looting and Vandalism of Archaeological Resources on Federal and Indian Lands in the United States, in Protecting the Past 93, 97 (George S. Smith & John E. Ehrenhard eds., 1991). (11) Research on ancient soils and pollens can provide helpful information to modern farmers with respect to crop rotation and grazing patterns. Kristine Olson Rogers & Elizabeth Grant, Model State/Tribal Legistation and Jury Education: Co-Venturing to Combat Cultural Resource Crime, in Protecting the Past, Supra note 10, at 47, 55. Similarly, the discovery of 8,000-year-old California condor bones during an excavation of a village site near The Dalles reveals valuable information concerning the historic range of this now near-extinct species. Emory Strong, Stone Age on the Columbia River 63 (1959). (12) As a member of the Kalapuya Tribe explained, tribal ancestors continue on their journey to the afterlife until their bones are dust; disturbing ancient burials will stop that person's journey until the proper ceremony can be performed. Contemporary tribal members therefore feel a great responsibility to ensure that their ancestors' remains are undisturbed. Bethanye McNichol, Cultures Collide Over Use of Ancestral Sites, Oregonian, June 5, 1993, at B1. The same member described as particularly painful the retrieval of a grandmother from a university museum: "Her bones were all wired together and she was displayed in a glass box." Id.
Kathryn Harrison, Vice Chair of the Confederated Tribes of the Grande Ronde, tells of a painful incident when an ancient burial ground was dug up to provide fresh dirt for a horse arena:
I can't tell you the feeling that my people had when some of the earth had been
removed from a sacred burial place and taken over to a horse arena. Once the earth was spread, to have seen the remains, whether it be a thigh or a foot bone. But they
were the bones of the remains of my ancestors. There are not words to describe the
hurt. It pierced my heart. And I know it pierced the heart of the Grande Ronde Nation. Hearings on SB 61 Before the House Comm. on General Government, Exhibit R (June 22, 1993) testimony of Kathryn Harrison). (13) See, e.g., Richard A. Rust, Almost a Crime: Arrowheads Belong to the Indians under Oregon Law 5-27 (Aug. 1992) (on file with the author) (discussing cultural resources prosecutions in the state of Oregon and Oregon's cultural resources protection statutes). Interview with Kristine Olson Rogers, former Associate Dean for Academic Affairs and Professor of Law at Northwestern School of Law of Lewis & Clark College, former Assistant United States Attorney for the District of Oregon, and current United States Attorney for the District of Oregon, in Portland, Or. (Nov. 8, 1993). (14) Davis et al., supra note 9, at 199. A former Assistant United States Attorney for the District of Oregon tells of going to Burns to prosecute an ARPA case. When she arrived at her hotel, a visitors packet of activities in the Burns area had been placed on her bedside table, including a map provided by the Chamber of Commerce on which the prime artifact collecting locations were marked with an arrowhead icon. One of the prime locations marked on the map happened to be the scene of the crime she was prosecuting. Interview with Kristine Olson Rogers, supra note 13. (15) In Oregon v. Castoe, a prosecution under Oregon's archaeological protection statutes, several members of the jury panel were known collectors of arrowheads, or had relatives who were collectors. Oregon v. Castoe, No. 90-06-9830E (Or. Cir. Ct. Harney County 1991); Rust, supra note 13, at 17 (discussing cultural resources prosecutions in the state of Oregon and Oregon's cultural resource protection statutes). In United States v. Bender, of the 32 members of the jury pool, 27 were collectors themselves or had relatives who were collectors. United States v. Bender, 81-119-BE (D. Or. 1981); Interview with Kristine Olson Rogers, supra note 13 (regarding cultural resources prosecutions in the state of Oregon). (16) 1983 Or. Laws ch. 620, [sections] 3 formerly codified at OR. Rev. Stat. [sections] 358.920(5) (1991)). (17) See, eg., Rust, supra note 13, at 14. (18) 1979 Or. Laws ch. 420, [sections] 1 (formerly codified at OR. Rev. Stat. [sections] 97.745(3)(a) (1991)). (19) This loophole proved to be a rightmare during the mid-1980s, when, after unusually high lake levels, Malheur Lake receded, exposing human burials and thousands of artifacts along the shoreline and on islands. "[A] great wealth of archaeological information was lost as artifact seekers swept into the area and legally carried away the prehistoric evidence for personal collections or for sale." Aikens, supra note 1, at 55-56. Due to the loophole, collectors could legitimately claim that the items had been removed by other than human action. (20) 1983 Or. Laws ch. 620, [sections] 15 (formerly codified at Or. Rev. Stat. [sections] 358.915 (1991)). (21) For example, the Bureau of Land Management is responsible for 15.7 million acres in Oregon, or approximately one-fourth of all the land in the State. Phil Keisling, Secretary of State, 1993-94 Oregon Blue Book 226 (1993) [hereinafter Oregon Blue Book]. While Surveillance of such vast acreage for signs of illegal excavation has been difficult in the past, recent cutbacks in law enforcement funding will make the monitoring of known or potential sites nearly impossible. Telephone Interview with Richard Hanes, BLM Archaeologist (Jan. 14, 1994); see also Annetta L. Cheek, Pi-otectian of Archaeological Resources on Public Lands: History of the Archaeological Resources Protection Act, in Protecting the Past, supra note 10, at 33, 38 (discussing the resources committed to the protection of cultural resources by federal agencies); Thomas F. King, Some Dimensions of the Pothunting Problem, in Protecting the Past, supra note 10, at 83, 87 (discussing the scope of the damage done to archaeological sites by illegal looters). (22) 25 U.S.C. [sections]SS 3001-3013 (Supp. V 1993). (23) Rogers, supra note 4, at 748 n.48. Many Northwest tribes west of the Caseades practiced canoe and tree burials as well. Strong, supra note 11, at 63. (24) See 1979 Or. Laws ch. 420, [subsections] 2, 3 (formerly codified at Or. Rev. Stat. [subsections] 97.745-.750 (1991)). (25) 1979 Or. Laws ch. 420, [sections] 1 (formerly codified at OR. Rev. Stat. [sections] 97.745 (1991)). (26) 1979 Or. Laws ch. 420, [sections] 2 (formerly codified at Or. Rev. Stat. [sections] 97.750 (1991)). (27) Id. (28) Id. (29) Telephone Interview with Gordon Bettles, Cultural and Heritage Specialist for the Klamath Tribe (Nov. 12, 1993). (30) 1981 Or. Laws ch. 442, [sections] 2 (formerly codified at OR. Rev. Stat. [sections] 97.760 (1991)). (31) Id. (32) 1983 Or. Laws ch. 620, [sections] 3 (formerly codified at OR. Rev. Stat. [sections] 358.920(5) (1991)). (33) 1983 Or. Laws ch. 620, [sections] 3 (formerly codified at OR. Rev. Stat. [sections] 358.920(l)(a) (1991)). 34) 1983 Or. Laws ch. 620, [sections] 13 (formerly codified at OR. Rev. Stat. [sections] 390.235(l)(e)(b) (1991)). No administrative niles were ever promulgated concerning the procedure this permit process was to follow. Telephone Interview with James Hanuick, Deputy State Historic Preservation Officer (Nov. 12, 1993). (35) Telephone Interview with Michael Mason, Tribal Attorney for the Confederated Tribes of the Grande Ronde Community (Nov. 9, 1993); Telephone Interview with Gordon Bettles, supra note 29. (36) Following repeated complaints by the tribes, in May 1993 the State Historic Preservation Office extended the comment period to 20 days. Telephone Interview with Michael Mason, Tribal Attorney for the Confederated Tribes of the Grande Ronde Community (Jan. 14, 1994). (37) 1983 Or. Laws ch. 620, [sections] 3 (formerly codified at OR. Rev. Stat. [sections] 358.920 (1991)). (38) 1983 Or. Laws ch. 620, [sections] 3 (formerly codified at OR. Rev. Stat. [sections] 358.920(4) (1991)). (39) Id. (40) Id. (41) Or. Rev. Stat. [sections] 273.990 (199 1) provides for up to six months in jail and/or a fine of up to $1000. (42) 1983 Or. Laws ch. 620, [sections] 4 (formerly codified at OR. Rev. Stat. [sections] 358.925 (1991)). (43) Id. (formerly codified at Or. Rev. Stat. [sections] 358.925(5) (1991)). (44) Id. (formerly codified at Or. Rev. Stat. [sections] 358.925 (1991)). (45) 1983 Or. Laws ch. 620, [sections] 15 (formerly codified at OR. Rev. Stat. [sections] 358.915 (1991)). (46) 16 U.S.C. [subsections] 470aa-470mm (1988 & Supp. V 1993). (47) 16 U.S.C. [subsections] 431-433 (1988). Although the Antiquities Act is still in force today, it was declared unconstitutionally vague by the Ninth Circuit in United States v. Diaz, 499 F.2d 113, 115 (9th Cir. 1974). ARPA was intended to remedy this defect in the law. H.R. REP. No. 311, 96th Cong., 1st Sess. 2 (1979), reprinted in 1979 U.S.C.C.A.N. 1709, 1710. (48) 16 U.S.C. [sections] 470aa(b) (1988). (49) 16 U.S.C. [sections] 470ee(a) (1988 & Supp. V 1993). (50) 16 U.S.C. [sections] 470ee(c) (1988). (51) Cheek, supra note 21, at 34; see also Kristine Olson Rogers, Visigoths Revisited: The Prosecution of Archaeological Resource Thieves, Traffickers, and Vandals, 2 J. Envtl. L. & Litig. 47, 76 (1987) (discussing the development of public awareness and legislation from 1879 to 1987 aimed at protecting archaeological resources). (52) 16 U.S.C. [sections] 470ee(g) (1988) (removal of arrowheads located on the surface of the ground is not a prohibited act and does not subject the collector to fines or imprisonment); 16 U.S.C. [sections] 470ff(a)(3) (1988) (removal of arrowheads located on the surface of the ground shall not subject the corector to a civil penalty assessed by a federal land manager). (53) Despite this apparent attempt to make arrowhead collecting permissible, the collection of any archaeological resource--including arrowheads--from public land is punishable criminally as theft of government property. 18 U.S.C. [sections] 641 (1988). (54) 16 U.S.C. [sections] 470ee(a) (1988 & Supp. V 1993). (55) See 36 C.F.R. [subsections] 1.4(a), 2.1(a)(1)(iii) (1994) (National Park Service Regulation, protecting archaeological resources," which are defined in [sections] 1.4(a) to include "weapon projectiles"); 36 C.F.R. [subsections] 261.2, 261.9(h) (1994) (U.S. Forest Service Regidation, protecting archaeological, historical, and prehistorical resources); 43 C.F.R. [sections] 9268.3(c)(2)(ii)-(iii) (1993) (Bureau of Land Management Regulation, prohibiting, respectively, harvest or of "objects of antiquity, historic, or scientific interest" and appropriation, mutilation, defacement, or destruction of any object of antiquity). (56) See Sebastian, supra note 8, at 52; Spencer P.M. Harrington, The Looting of Arkansas, Archaelogy, May/June 1991, at 22, 24. (57) Wash. REV. CODE [subsections] 27.44.020-.050, 27.53.010-.150 (1994). (58) WASH. REV. CODE [section] 27.53.060(l) (1994). (59) "A person knows or acts knowingly or with knowledge when: (i) he is aware of a fact, facts, or circumstances or result described by a statute defining an offense; or (ii) he has information which would lead a reasonable man in the same situation to believe that facts exist which facts are described by a statute defining an offense." WASH. Rev. CODE [section] 9A.08.010(1)(b) (1994). (60) WASH. REV. CODE [section] 27.44.040(1) (1994). A glyph is " a symbolic figure or character usually incised or carved in relief." WEBSTER'S Third NEW International Dictionary 970 (3d ed. 1986) (61) WASH, Rev. Code: [section] 27.53.060(2)(1994). (62) Wash. Admin. CODE [section] 2548-070 (1992). (63) WASH. Admin. CODE [section] 2548-050 (1992). (64) WASH. Rev. CODE [section] 27.53.060(2) (1994). (65) Wash. REV. CODE [section] 27.53.030(3) (1994). (66) "'Archaeological object' means an object that comprises the physical evidence of an indigenous and subsequent culture including material remains of past human life including monuments, symbols, tools, facilities, and technological by-products," WASH. Rev. Code, [section] 27.53.030(2) (1994). (67) 25 U.S.C. [subsections] 3001-3013 (Supp. V 1993). (68) For an excellent discussion of the background and legislative history of NAGPRA, see generally Trope & Echo-Hawk, supra note 6. (69) 25 U.S.C. [section] 3001(3) (Supp. V 1993). (70) Id. [section] 3001(3)(A). (71) Id. [section] 3001(3)(B). (72) Id. [section] 3001(3)(D). (73) 58 Fed. Reg. 31,122, 31,126 (May 28, 1993) (proposed nile). (74) 25 U.S.C. [subsections] 3003-3004 (Supp. V 1993). (75) Id. [section] 3002(a). (76) Id. [section] 3002(d). (77) Id. [section] 3002(c). (78) Columbia River Gorge National Scenic Area Act, 16 U.S.C. [subsections] 544-544p (1988 & Supp. V 1993). (79) The Columbia River Gorge Commission was set up pursuant to the terms of a bi-state compact ratified in 1987 and codified at OR. REV. STAT. [section] 196.150 (1993) and Wash. REV. CODE [section] 43.97 (Supp. 1995). See Rogers, supra note 4, at 742. (80) COLUMBIA River GORGE Comm'n, Management PLAN FOR THE Columbia River Gorge NATIONAL SCENIC AREA 2 (1992) (adopted by the Columbia River Gorge Commission on Oct. 15, 1991, concurrence by the U.S. Secretary of Agriculture on Feb. 13, 1992). (81) Id. at 11-51, 56. (82) Id. at II-57. (83) Id. (84) Id. at 11-56. (85) See Rogers, supra note 4, at 781. (86) National Historic Preservation Act Amendments of 1992, Pub. L. No. 102-575, 106 Stat. 4753 (1992) (amending 16 U.S.C. [subsections] 470-470w-6 (1988)). (87) Id. [section] 4006(a) codified at 16 U.S.C. [section] 470a(d)(1)(a) (Supp. V 1993)). (88) Id. codified at 16 U.S.C. [section] 470a(d)(1)(B) (Supp. V 1993)). If a site is deemed eligible for inclusion in the National Register, NHPA requires that a federal agency contemplating action in the vicinity of that site must take into account any effect the federal action may have on the site. 16 U.S.C. [section] 470f (1988). Requiring State Historic Preservation Offices to give weight to Native American values when evaluating a site for historical importance will therefore greatly increase the protection available for important Native American sites. (89) Pub. L. No. 102-575, [section] 4006(a), 106 Stat. 4753, 4755-57 (1992) codified at 16 U.S.C. [section] 470a(d)(6)(A) (Supp. V 1993)). (90) Id. (codified at 16 U.S.C. [section] 470a(d)(2) (Supp. V 1993)). (91) Id. [section] 304(a) (codified at 16 U.S.C. [section] 470w-3(a) (Supp. V 1993)). (92) Id. [section] 4016 (codified at 16 U.S.C. [section] 470i(a)(11) (Supp. V 1993)). (93) See 1991 Or. Laws ch. 616 (not codified). (94) Hearings on SB 61 Before the House Comm. on General Government, Exhibit P June 22, 1993) (statement of the Oregon State Historic Preservation Office). (95) The nine federally recognized Oregon tribes are: The Confederated Tribes of the Grande Ronde Community; the Confederated Tribes of Siletz Indians; the Coquille Indian Tribe; the Klamath Tribes; the Confederated Tribes of the Warm Springs Reservation; the Confederated Tribes of the Umatilla Indian Reservation; the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians; the Cow Creek Band of Umpqua Tribe of Indians; and the Burns-Paiute Tribes. OREGON BLUE Book, Supra note 21, at 269. Only the first six listed tribes took an active role in the drafting of SB 61. (96) "If we take all the Clovis points off a Clovis point site, how are we going to identify it?" Hearings Before the House Comm. on General Government, Tape 64, Side B at 166 June 22, 1993) (testimony of Scott, Stuemke, Tribal Archaeologist for the Confederated Tribes of Warm Springs). (97) Telephone Interview with Michael Mason, supra note 35. (98) Telephone Interview with Gordon Bettles, supra note 29. (99) See Carroll Howe, Private Collecting, NRLI News (Natural Resources Law Inst., Northwestern School of Law, Portland, Or.), Jan. 1994, at 8; supra note 9, at 202. (100) Hearings on SB 61 Before the Senate Judiciary Comm., Tape 79, Side B at 252 (Mar. 31, 1993) (testimony of Richard Scott). (101) Interview with Kristine Olson Rogers, supra note 13. (102) See Floyd C. Pepper, Oregon Indians Today, in supra note 2, at 59, 60-61. (103) Oregon Blue Book, supra note 21, at 163. While the Commission on Indian Services looks out for tribal needs and concerns and often serves as coordinator for issues of importance to tribes, it does not directly represent them. The Confederated Tribes of the Umatilla Indian Reservation, for example, has withdrawn from participation with the Commission on Indian Services. Telephone Interview with Jeff Van Pelt, Cultural Resources Protection Coordinator for the Confederated Tribes of the Umatilla Indian Reservation (Jan. 7, 1994). (104) Interview with Janet Neuman, former Director of the Division of State Lands, in Portland, Or. (Nov. 10, 1993). Oregon's treasure trove statutes are located at 03z. REV. STAT. [subsections] 273.718-.742 (1993). (105) SB 225, [section] 2, at ll. 40-41. (106) Id. [section] 11, at ll. 12-13, (107) Interview with Douglas Hutchinson, Executive Director of the Commission on Indian Services, in Salem, Or. (Nov. 3, 1993). (108) 1983 Or. Laws ch. 268, [section] 3 (formerly codified at OR. REV. STAT. [section] 358.612(13) (1991)). (109) Interview with Douglas Hutchinson, supra note 107. (110) Id. (111) Telephone interview with Sharon Parrish, Enrollment/Culture Coordinator for the Coquille Indian Tribe (Nov. 24, 1993). (112) Interview with Janet Neuman, supra note 104. (113) Deputy State Historic Preservation Officer James Hamrick asserts that the treasure trove issue was so important that SHPO was prepared to go forward with the bill despite tribal opposition. However, because Oregon's State Land Board agreed to continue a moratorium on the proposed treasure trove legislation, immediate resolution of the issue became unnecessary. SHPO decided to address the issue at the next legislative session. Telephone Interview with James Hamrick, supra note 34. (114) Id. (115) See 1991 Or. Laws ch. 616 (not codified). (116) SB 60, [section] 1, at 1-2 ll. 28-31, 1. (117) Id. [section] 3, at 11. 15, 19. (118) Id. [section] 3, at 11. 44-45 requiring Compliance with OR. REV. STAT. [section] 358.950, the tribal notification provision). (119) Id. [section] 4, at 1. 4. (120) SB 61, [section] 1. (121) Id. [section] 1, at 1 ll. 18-20. (122) Id. [section] 8, at ll. 20-26; [section] 5, at 11. 26-27. (123) Id. [section] 3, at ll. 4-7; [section] 8, at ll., 32-33. (124) Id. [section] 6, at 11. 29-35. (125) Id. [section] 9, at ll. 37-42. (126) SB 495, [section] 13, at l. 44. (127) Id. [section] 1, at 1. 7, passim. (128) Id. [section] 4, at 11. 4142. (129) Required information would have included when and where the object was originally found, who removed it from its place of initial discovery, a description of how the object came into the possession of the current owner, the known names of all previous possessors, and the name and social security number of the current owner. Id. [section] 5, at ll. 15-28. (130) SB 497, (131) Id. [sections] 1, at. 2 ll. 8-12. (132) Id. [sections] 4, at 11. 3-23. (133) The bills had first been sent to the Senate Committee on Education, which returned them to the Senate President with the request that they be referred to another committee. The bills were subsequently assigned to the Senate Judiciary Committee on March 11, 1993. Sixty-Seventh Oregon Legislative Assembly, Senate Legislative Calendar, at. S-13 (1993) [hereinafter Calendar] (134) Telephone Interview with Sharon Parrish, supra note 111. (135) For example, SB 60 would have repealed Or. Rev. Stat. [sections] 358.915 while SB 61 simply amended it. (136) The six tribes represented were the Confederated Tribes of the Grande Ronde Community, the Confederated Tribes of the Siletz Indians, the Coquille Indian Tribe, the Klamath Tribes, The Confederated Tribes of the Warm Springs Reservation, and the Confederated Tribes of the Umatilla Indian Reservation. The other three tribes were apparently unable to attend. Telephone Interview with Sharon Parrish, supra note 111. (137) Several tribal representatives have asserted that they were willing to give things up to ensure passage of SB 61 during the 1993 legislative session, They settled for a bill they could live with for the short term, with a view towards fighting to get those concessions back in the 1994-95 legislative session. Telephone Interviews with Gordon Bettles, supra note 29; Sharon Parrish, supra note 111; and Michael Mason, supra note 35. (138) Heatings on SB 61 Before the Senate Judiciary Comm., Exhibit J, [sections] 3, ll. 28-31 (Mar. 31, 1993) (copy of consensus bill attached to written statement of Sharon Parrish, Enrollment/Culture Coordinator of the Coquille Indian Tribe, explaining changes and amendments) [hereinafter Consensus SB 61]. (139) Id. [sections] 4, at ll. 1-2. (140) The participating tribes were the Confederated Tribes of the Grande Ronde Community, the Confederated Tribes of the, Siletz Indians, the Coquille lndian Tribe, the Klamath Tribes, The Confederated Tribes of the Warm Springs Reservation, and the Confederated Tribes of the Umatilla Indian Reservation, (141) John Bevis, Member of the Board of Trustees of the Confederated Tribes of the Umatilla Indian Reservation, spoke directly to this point:
Through the years, I have wondered what prompted archaeologists and museums to study our people and ancient sites. I have often thought that there was a belief by some that our people would all be gone someday. This belief may have prompted some to believe that we were already gone, which might partially account for the presumptuous language used in existing Oregon law. We are not dead. Our culture is alive and vibrant. Our culture is not static, it is dynamic and we are still here and still hold respect for our cultural sites and resources. We have practical and religious uses for many of these resources today. It is therefore important that I emphasize this point: that due to the nature and uses of these resources by our people, the proper management of these sites and resources must include participation of the tribes. Hearings on SB 61 Before the Senate Judiciary Comm., Exhibit E (Mar. 31, 1993) (testimony of John Bevis). (142) "Most people that surface hunt, aren't out to destroy any cultural heritage, they're out to preserve what's there laying on the surface that's destroyed by plows, by water action, by the action of wind and other erosion and so on and so forth, and I don't see how that is detrimental in any way." Hearings on SB 61 Before the Senate Judiciary Comm., Tape 79, Side B at 174 (Mar. 31, 1993) (testimony of Steve Gerlt).
Another collector claimed that he spends a lot of time "walking plowed fields trying to save things before they're, totally destroyed by the forces of nature-possibly a cow stepping right in the middle of a beautiful spear point, breaking it to pieces, making it worthless for anybody." Hearings on SB 61 Before the Senate Judiciary Comm., Tape 79, Side B at 201 Mar. 31, 1993) (testimony of Richard Scott). An archaeologist for the Bureau of Land Management (BLM), the federal agency which manages millions of acres leased for cattle grazing, stated that at least on federal land the damage to artifacts by cow trampling is "pretty minimal." Telephone Interview with Richard Hanes, supra note 21. (143) See supra note 19 and accompanying text. (144) Testimony of Steve Gerlt, supra note 142, at 145. For an archaeologist's perspective on the same event, see supra note 19. (145) Testimony of Steve Gerlt, supra note 142, at 152; testimony of Richard Scott, supra note 142, at 297. (146) Testimony of Steve Gerlt, supra note 142, at 113; testimony of Richard Scott, supra note 142, at 252. (147) Hearings on SB 61 Before the Senate Judiciary Comm., Tape 80, Side B at 202 (Mar. 31, 1993) (testimony of Kenneth Ames, Professor of Anthropology, Portland State University). (148) Id. at 197. The extent to which Portland is involved in the export of artifacts to foreign markets is unclear. While there are claims that Portland is a major export center for illicit trade in artifacts, a retired UCLA archaeology professor now living in Bend offered written testimony asserting instead that "[tlhere are places where archaeological materials have a high market value and where commercial collecting is big business, but Oregon is not one of them." Hearings on SB 61 Before the Senate Judiciary Comm., Exhibit V (Apr. 28, 1993) written testimony of Clement W. Meighan). The prevailing opinion is that even if Portland is not a major export center, a substantial amount of artifacts leaves Portland each year, destined either directly for Germany or Japan, or to Seattle or San Francisco for ultimate shipment to those foreign markets. Telephone Interview with Richard Hanes, supra note 21; Telephone Interview with Kenneth Ames, Professor of Anthropology, Portland State University (Jan. 14, 1993). The perception at BLM is that more full-time pothunters working for collectors are appearing on the scene, leading to the conclusion that market demand is increasing. Telephone Interview with Richard Hanes, supra note 21. (149) Hearings on SB 61 Before the Senate Judiciary Comm., supra note 147, at 225. (150) Consensus SB 61, supra note 138, [sections] 12, at, 7 11. 10-11, 29. (151) Hearings on SB 61 Before the Senate Judiciary Comm., Exhibit S (Apr. 28, 1993) (testimony of Don E. Dumond, Director of the Oregon State Museum of Anthropology). (152) A-Eng. SB 61, [sections] 2, at ll. 34-35. (153) Id. [sections] 4, at ll. 25-27. (154) Id. [sections] 4, at ll. 3-9. (155) Id. [sections] 12, at 7 ll. 24-26. (156) Id. [sections] 15. (157) Id. [sections] 1, at 1 ll. 14-18. (158) Id. [sections] 3, at ll. 404-43. (159) Id. [sections] 4, at ll. 27-34. (160) Id. [sections] 1, at 1 ll. 7-8. Although ARPA itself sets an age requirement of 100 years, 16 U.S.C. [sections] 470bb(1) (1988), many regulations promulgated by federal land managers specify the 50-year age limit. E.g., 36 C.F.R. [sections] 1.4 (1994) (stating that archaeological resource must be "at least 50 years of age"); 36 C.F.R. [sections] 261.2 (1994) (stating that archaeological resource must be "at least 50 years of age". (161) A-Eng. SB 61, [sections] 4, at ll. 16-17. (162) Id. [sections] 5, at 4 1. 8. (163) Calendar, supra, note. 133, at S-13. (164) Interview with Douglas Hutchinson, supra note 107. (165) Id. Jeff Van Cultural Resource Protection Coordinator for the Confederated Tribes of the Umatilla Indian Reservation, stated that the tribes tried to stay away from anything that midght require state funding, feeling that any proposals that might burden the public fisc would doom the bill in committee. Telephone. Interview with Jeff Van Pelt, supra note 103. (166) Hearings on SB 61 Before the House Comm. on General Government, Exhibit 0 June 22, 1993) (testimony of Carroll Howe). (167) Id. (168) Hearings on SB 61 Before House Comm. on General Government, Tape 63, Side B at 270 (June 22, 1993). (169) Id. at 294-380. Kathryn Harrison, Vice Chair of the Confederated Tribes of the Grande Ronde, addressed this issue directly:
Some have said that we will use the "objects of cultural patrimony" definition to take
people's arrowheads. That is just not true. These objects of cultural patrimony are
very rare. An example at the Grande Ronde is our ceremonial staff, which is wrapped
in ermine and hung with eagle feathers.... It belongs to the whole tribe. If an individual
sold it to a collector, SB 61 would confirm that it still belonged to the Tribe....
Arrowhead collections are not our concern here. Hearings on SB 61 Before the House Comm. on General Government, Exhibit R (June 22, 1993). (170) Id.; see also Hearings on SB 61 Before the House Comm. on General Government, Tape 66, Side A at 183 (June 22, 1993) (testimony of Bensell Breon, Confederated Tribes of the Siletz Indians). (171) Interview with Representative Ken Baker, Oregon House of Representatives, in Clackamas, Or. (Nov. 12, 1993); Hearings on SB 61 Before the House Comm. on General Government, Tape 65, Side A at 107 (June 22, 1993). (172) Interview with Representative Ken Baker, supra note 171. (173) Work Session of the House Comm. on General Government on SB 61, Tape 78, Side A at 142 (June 30, 1993). 174 Countering protests that private land should be left inviolate, Committee Vice-Chair Jim Edmundson argued that there should be a distinction between minerals, which generally run with the deed to the land, and items left on the land by a previous culture, title to which cannot be claimed to have been included in the deed. Id. at 20-98 (statement of Representative Jim Edmundson). (175) Work Session of the House Comm. on General Government on SB 61, transcript, at 3 June 30, 1993) (discussion among Representatives Edmundson, Roberts, and Norris). (176) Work Session of the, House Comm. on General Government on SB 61, Tape 78, Side A at 142. (177) The extension of the permitting requirements to private land caught many SB 61 proponents by surprise; the tribes had never asked for permitting requirements for private land because they did not think they would be able to get the bill through the legislature with that requirement. Interview with Douglas Hutchinson, supra note 107; Telephone Interview with Michael Mason, supra note 35. (178) No changes were made to the, bill when it was returned to the Senate for concurrence, and the B-Engrossed SB 61 was later signed into law as 1993 Or. Laws ch. 459. (179) B-Eng. SB 61, [sections] 3, at 11. 4-7. (180) Id. [sections] 4, at 3 11. 13-14. (181) Id. [sections] 4, at 3 11. 15-19, (182) Id. [sections] 1, at 2 11. 21-22. (183) Id. [sections] 4, at 11. 34-39. (184) Id. [sections] 18, at 11. 7-9. This provision had not been discussed at any of the hearings, and was apparently slipped in at the last moment by the House Committee on General Government immediately prior to the bill's passage. (185) Id. [sections] 15, at 11. 26-44. The details of the dispute resolution procedure are to be set out in regulations promulgated by SHPO and the State Department of Parks and Recreation. (186) Id. [sections] 16. (187) Id, [sections] 4, at 3 11. 9-12. (188) Calendar, supra note 133, at S-13. (189) Id. (190) Id. The effective date, of November 4, 1993, was 90 days after the legislature's adjournment. (191) Telephone Interview with James Hamrick, supra note, 34. (192) Id. (193) Memorandum from James Hamrick, Deputy State Historic Preservation Officer, to Tribal Governments and Interested Parties (Apr. 26., 1994) (on file with author). (194) See Or. Admin. R. 736-51-000 to -050 (1994), (195) Or. Admin. R. 736-51-020 (1994). (196) Or. Admin. R. 736-51-030(1) (1994). (197) Or. Admin. R. 736-51-030(2) (1994). (198) Or, Admin. R. 736-51-030(3) (1994). (199) Or. Admin. R. 736-51-030(2) (1994). (200) Or. Admin. R. 736-51-030(3) (1994). (201) Entities with approval authority include the Oregon Parks and Recreation Department, the tribes, the, Oregon State Museum of Anthropology, and local land managers. OR. R. 736-51-040(1) (1994). (202) Or. Admin. R. 736-51-040(1) (1994). (203) Or. Admin. R. 736-51-040(2) (1994). (204) Or. Admin. R. 736-51-040(3) (1994). (205) Or. Admin. R. 736-51-040(4) (1994). (206) Or. Admin. R. 736-51-040(5) (1994). (207) Or. Admin. R. 736-51-040(5)(d) (1994). The tribes find this provision important because many of them have governing boards of elders and other leaders who meet only once a month. See supra text accompanying notes 35-36. (208) Or. Admin. R. 736-51-050(1) (1994). (209) Or. Admin. R. 736-51-050(2) (1994). (210) Or. Admin. R. 736-51-050(4) (1994). (211) The rule states that appeals may be made "pursuant to ORS 36.365." Or. Admin. R. 736-51-050(7) (1994). That statute gives parties the right to appeal an arbitration decision to the state courts. Or. Rev. Stat. [sections] 36.365 (1993). (212) Or. Admin. R. 736-51-050(6) (1994). (213) See Memorandum from James Hamrick, Deputy State Historic Preservation Officer, to Tribal Governments and Interested Parties (Feb. 9, 1994) (on file with author). (214) Memorandum from James Hamrick, Deputy State Historic Preservation Officer, to Tribal Governments, Interested Parties, State and Federal Agencies, and Local Governments Jan. 5. 1995) (on file with author). (215) Or. Admin. R. 736-51-080 (public lands); Or. Admin. R. 736-51-090 (private lands). (216) Or. Admin. R. 736-51-080(1) (1995). (217) A "qualified archaeologist" is someone who has a post-graduate degree in specified fields, twelve weeks of supervised experience in basic field research, and experience in designing and executing an archaeological study. Or. Admin. R. 736-51-070(17) (1995). (218) Or. Admin. R. 736-51-080(3) (1995). (219) Such documentation includes: a map of the site, the resume of the person conducting the field work, a research design, a proposed curation facility for objects discovered, information on the appropriate land manager, and a copy of the notice required if the excavation is associated with a prehistoric or historic Native American archaeological site. Or. Admin. R. 736-51-080(4)(a)-(f) (1995). (220) Or. Admin. R. 736-51-080(6)-(7) (1995). (221) Or. Admin. R. 736-51-080(8)(b) (1995). (222) Or. Admin. R. 736-51-080(8)(c) (1995). (223) Id. (224) Or. Admin. R. 736-51-080(9)(a) (1995). (225) Or. Admin. R. 736-51-080(9)(c)(a), (B), (E) (1995). (226) Or. Admin. R. 736-51-080(9)(b)(b) (1995). (227) Or. Admin. R. 736-51-080(11) (1995). (228) Or. Admin. R. 736-51-090(3)(a)-(b) (1995). (229) Or. Admin. R. 736-51-090(1)(a) (1995). (230) Or. Admin. R. 736-51-090(1)(b)-(c) (1995). (231) Or. Admin. R. 736-51-090(6) (1995). (232) Telephone Interview with Michael Mason, supra note 35. (233) Telephone Interview with Gordon Bettles, supra note 29. (234) Or. Rev. Stat. [sections] 358.915 (1993); Or. Admin. R. 736-51-090(1)(b) (1995). (235) Telephone Interview with Michael Mason, supra note 35. (236) Telephone Interview with Gordon Bettles, supra note 29. (237) Id.; Telephone Interview with Sharon Parrish, supra note 111. (238) Or. Rev. Stat. [sections] 273.990 (1993). However, the 1993 legislature increased the fine portion of a Class B misdemeanor from $1,000 to $2,000. 1993 Or. Laws ch. 680, [sections] 30 (codified at Or. Rev. Stat. [sections] 161.635(b) (1993)). (239) Or. Rev. Stat. [sections] 97.990(5) (1993). The penalty statutes were not included in any of the bills before the legislature. (240) A study by the U. S. Forest Service on archaeological vandalism in the Pacific Northwest comes to the conclusion that
ignorance of the law does not extend to serious collectors and commercial thieves. To
both groups, antiquities laws are merely a challenge and a bothersome obstacle to
overcome in hunting for artifacts. From our investigations, we know that serious artifact
thieves in this region are completely aware of the Antiquities Act and ARPA. Davis et al., supra note 9, at 201 (citation omitted). (241) Or. Rev. Stat. [sections] 161.635(b) (1993) (penalty for Class B misdemeanor). (242) Or. Rev. Stat. [sections] 161.615(2) (1993) (penalty for Class B misdemeanor). (243) For a thorough analysis of possible educational tools to be used to foster resource protection, see generally Rogers & Grant, supra note 11, at 54-61. (244) A friend of mine grew up in Bend and recalled his Boy Scout Troop taking day trips to go out and collect arrowheads. A great deal could be accomplished if such groups could instead encourage their members to leave such artifacts undisturbed and report their location to the appropriate state or federal land manager. (245) Telephone Interview with Richard Hanes, supra note 21. (246) See Constance M. Callaghan, Warp and Weft: Weaving a Blanket of Protection for Cultural Resources on Private Property, 23 Envtl. L. 1323, 1343-45 (1993). (247) Id. (248) The Museum at Warm Springs, owned and operated by the Confederated Tribes of the Warm Springs Reservation of Oregon, is an impressive, state-of-the-art museum that successfully furthers the goal of perpetuating the tribes' aboriginal identity, sovereignty, and traditions. See Letter from Jeanne Thomas, Coordinator of Museum Education/Tours, The Museum at Warm Springs, to the author (Feb. 4, 1994) (on file with author); Brochure from The Museum at Warm Springs. Unfortunately, a tribal museum of this calibre is a rarity. Due to the immense cost of such a project, only two other tribes in Oregon--the Klamath and the Umatilla--currently have plans to raise funds for tribal curation facilities. Telephone Interview with Gordon Bettles, supra note 29; Telephone Interview with Jeff Van Pelt, supra note 103.