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Warp and weft: weaving a blanket of protection for cultural resources on private property.

I. Introduction II. Current Protections for Private Sites

A. Deterrence Programs

1.Permit Requirements for Sites Not Associated

with Burials

2.Burial Desecration Statutes

3.ARPA Trafficking Provisions

4.Umbrella Statutes

B. Conservation Programs

1. State Regulatory Controls

2. Registries and Certifications
 a.National Register
 b.State Registers


3. Conservation Easements and the Uniform

Conservation Easement Act

4. Acquisition in Fee by State or Private

Party

III. Summary

I. INTRODUCTION

Archaeological sites provide information about past ways of life, ancient and not-so-ancient belief systems, and environmental adaptations of human cultures. These stockpiles of information have slowly accumulated around the world, including in North America, where some scholars claim humans have been in residence for close to 40,000 years.(1) While scientists and laypersons learn a great deal from archaeological research, and the public as a whole is fascinated by archaeology, this fascination, combined with Anglo-American racist attitudes about Native Americans,(2) has had a destructive impact upon the nation's archaeological sites. Domestic interest and foreign demand for Native American contemporary art and antiquities has fueled an epidemic of pothunting, or looting, of ancient habitation sites and Native American burial grounds.(3) Rummaging through such grounds in search of artifacts destroys the stratigraphy (or geological levels) of the site, from which most archaeological information is gained. Moreover, should a site contain skeletal remains, looters not only disturb the site, they also desecrate a human grave.

Several federal laws have been passed in the last century to protect cultural resources on public and Indian lands,(4) but these statutes have done little to protect sites on private lands from pothunting. Because private lands make up most of the property in this country, a large proportion of the archaeological sites in the nation are still unprotected from looting by the owners of the property. Federal laws fail to address many aspects of the pothunting problem due to constitutional constraints on the expansion of federal power. The Archaeological Resources Protection Act of 1979 (ARPA),(5) for instance, only prohibits unauthorized disturbance of cultural resources on public or Indian lands, except in certain circumstances, such as when there is a violation of state or local law and resources are transported across state lines.(6) Federal law, therefore, creates a loosely-woven net of protection on federal lands, which needs to be supplemented by more specific controls at the state and local level.

Unfortunately, many state laws resemble the federal laws in that they only protect sites on public lands or Indian lands, or are only concerned with unauthorized digging on private lands. For example, Virginia law forbids any disturbance of "any object of antiquity on state-controlled land, or on a state archaeological site or zone without first receiving a permit . . . . "(7) Many state laws, which resemble Virginia's, are limited to protection of sites on state lands. Their application is thus limited, particularly in the East, where due to earlier settlement a much smaller proportion of public lands exist than in the West.

What little protection presently exists has taken a long time to achieve because, until recently, the sacred cow of private property has prevented lawmakers from imposing stricter protections for cultural resources on private lands.(8) The U.S. Supreme Court's current conservatism has increased fears that many land use regulations may be held to violate the Fifth Amendment's prohibition of uncompensated takings.(9) In spite of these concerns, some states have taken steps to institute land use controls that may protect threatened cultural resources. For instance, the Indiana Supreme Court has held that a restriction on strip mining property containing an archaeological site is not a taking.(10)

Internationally, many nations have passed umbrella statutes, which vest ownership of all archaeological resources discovered within the nation's boundaries in the state. For instance, the Guatemalan Constitution states that all "[a]rchaeological monuments and relics . . . are assets of the state."(11) Mexico passed its first umbrella statute in 1897, and has continued to extend its sovereign ownership over archaeological finds in the succeeding years.(12) Among the other nations that have passed umbrella statutes are Argentina, Belize, Egypt, Jordan, Lebanon, Mauritania, and Venezuela.(13) The use of such laws in the United States is suspect, because of the history of restrictions on uncompensated takings of private property, and the general disfavor for restrictions on alienation of property.(14) Unquestionably, however, much can be learned from the experiences of the international community in dealing with this problem.

Despite the problems detailed above, a variety of means are available under state and federal law to protect cultural resources on private property. These methods can be broken down into two types: deterrence and conservation. Section II of this comment examines these two major types of protection for cultural resources, explores how most existing programs are disjointed at all levels, and recommends ways to improve enforcement of such laws. Section III concludes with recommendations for improving and interweaving various methods of protection into an inter-jurisdictional legal "blanket" that can be used to protect cultural resources from both pothunting and property development.

II. CURRENT PROTECTIONS FOR PRIVATE SITES

A. Deterrence Programs

Deterrence refers primarily to the enforcement of state and federal criminal laws that forbid certain activity with respect to cultural resources. The goal of deterrence is to dissuade people from disturbing any known or unknown archaeological sites. There are four primary methods used to deter the destruction of archaeological resources on private lands: 1) state permit requirements for archaeological investigations, 2) burial desecration statutes, 3) the trafficking provisions of ARPA,(15) and 4) state umbrella statutes.

1. Permit Requirements for Sites Not Associated with Burials

A few states require that all investigations of archaeological sites, with or without associated burials, have a permit issued by the State Historical Preservation Officer (SHPO) or similar state authority. The requirements vary between states in terms of the triggering requirements and the guidelines for issuing the permits. Many of these laws complement state zoning and land-use regulation programs.(16)

Under Alabama law, only authorized state employees or agents are allowed to conduct excavations of archaeological sites within the state.(17) A violation of this or the other provisions of the Alabama act regarding "Aboriginal Mounds, Earthworks, and other Antiquities"(18) is a misdemeanor and will result in a fine of up to one thousand dollars.(19)

Recently enacted Indiana law requires that any disturbance of "the ground for the purpose of discovering artifacts or burial objects "must be in accord with a plan developed or approved by the Indiana Department of Natural Resources, Division of Historic Preservation and Archeology.(20) Violation of this requirement is a Class A misdemeanor, subject to up to one year in prison or a five thousand dollar fine.(21) However, if a person working on her own land for a purpose other than archaeological investigation disturbs an archaeological site and reports the discovery as required, the State must respond to her report within thirty days, or it is powerless to stop the activity.(22)

West Virginia, like Indiana, recently passed an archaeological permit requirement. Any excavation or disturbance of any site or grave "of historical significance" must have a permit from the State Director of Historic Preservation, unless the investigation is being conducted under ARPA authority or under section 106 of the National Historic Preservation Act.(23) Any unlawful site disturbance is a misdemeanor.(24) This language, paralleling the language in ARPA, implies that any site that is not "of historical significance" is not protected by the state permit requirements, and can be looted with impunity. The statute, however, does not describe how to determine significance. This clause could result in the same problems that have plagued ARPA prosecutions, such as proving that the resource in question was important or valuable before the pothunters found it.(25)

In Washington, in order to excavate an archaeological site not associated with human remains, the investigator must obtain both the landowner's permission and a permit from the SHPO.(26) The Washington code expressly mandates that the Director of the state archaeological research center consult with tribal authorities in setting guidelines for the issuance of permits.(27)

Far fewer states have instituted controls on archaeological investigations in general, as compared to controls on disturbing gravesites. This distinction between archaeological sites and gravesites has resulted in one of the larger holes in the web of protection and is a natural result of the reluctance of legislators to interfere with private uses of private property absent a pressing health or safety reason. Legislators in some states have indirectly attempted to address the problem. Oregon, for example, attempts to control excavating on private lands by requiring that all artifacts sold or transferred be accompanied by a certificate of origin indicating that the item was obtained with the landowner's knowledge and permission.(28) This requirement is frequently avoided by the use of forged certificates of origin.(29)

At best, permit provisions should apply to all lands within the state, public and private. Drafters of such legislation should avoid using language about the significance of a site and leave de minimis prosecutions to prosecutorial discretion. Permit requirements should be drawn up in consultation with the local Native American and archaeological communities, with sensitivity for the religious and traditional significance of the areas. Lastly, permit programs should require the landowner's written permission with the permit application.

2. Burial Desecration Statutes

The Native American Graves Protection and Repatriation Act of 1990 (NAGPRA)(30) instituted national controls to protect Native American graves from desecration by pothunters. While much of the Act concerns the repatriation of skeletal collections in the nation's museums, the trafficking provisions of NAGPRA can be used to prosecute violations occurring on private lands. NAGPRA prohibits the trafficking for profit of Native American human remains or "cultural items" unless the remains were obtained with the knowledge and consent of the next of kin or an official cultural organization.(31) Thus, a looter can be prosecuted for removing and selling almost any material from a burial site, even if the excavation was with the landowner's consent. Unfortunately, NAGPRA does not reach the landowner who digs up a grave and keeps the skull on his mantelpiece.

State legislation protecting gravesites is not so restricted. In 1987, legislators nationwide became aware of the importance of protecting such sites located on private lands when an ancient burial ground was discovered on the Slack Farm in western Kentucky.(32) Ten men paid the landowner one thousand dollars apiece for the right to ransack the field for artifacts.(33) In the process, they disturbed more than one thousand graves of villagers who had once lived there.(34) Unfortunately, at that time Kentucky had no strong protections against this type of activity, and charges received national attention,(36) and within the next few years thirty-four states passed laws dealing with the desecration of unmarked graves.(37)

In Indiana, any disturbance of a burial ground in the course of an archaeological investigation must be within the terms of a plan approved by the State Division of Historical and Archaeological Preservation.(38) If the excavator does not have a state-approved plan, or is not in conformance with that plan, such disturbance is a Class D felony,(39) punishable by up to one and one-half years in jail or a ten thousand dollar fine.(40) Even with a state plan, if the excavator disturbs human remains of any kind, she is required to report the find immediately and "[t]reat or rebury those remains in a manner and place according to rules adopted by the commission or a court order and permit issued by the state board of health . . . . "(41) An intentional, knowing, or reckless violation of this provision is a Class A misdemeanor.(42)

The State of Washington has given rock art the same level of protection as unmarked graves: any removal of archaeological material associated with such sites, as well as removal or destruction of the rock art or human remains, is prohibited without a permit from the SHPO.(43) In addition, any material removed must be "destined for reburial or perpetual preservation in a duly recognized archaeological repository,"(44) and the SHPO must notify the affected tribes of any application for a permit to excavate or remove such materials.(45) Knowing desecration of a grave or rock art, or the sale of burial material or human remains, qualifies as a Class C felony,(46) punishable by up to five years in jail, a ten thousand dollar fine, or both.(47) An inadvertent desecrator, however, is required to rebury the remains under tribal supervision, with the costs of the interment covered by the state.(48)

For comparison, West Virginia requires a permit for any disturbance(49) of a gravesite unless the grave is not of historical significance. The procedures for obtaining a burial-excavation permit are much stricter than those for an archaeological site not associated with human remains. Within the permit, the applicant must state the purpose for the research, agree to supply a copy of the final report on the research to the state, and obtain prior written approval from the landowner.(50) In addition, "descendants of proven kinship" are to be notified in advance, if they can be found, and will be consulted in determining the reinterment procedures.(51) As a last control, the West Virginia legislature created a presumption against issuing such permits: "A permit to disturb human skeletal remains . . . will be issued only after alternatives to disturbance and other mitigative measures have been considered"(52) If the state or applicant is unable to locate descendants of proven kinship, the state museum will hold the remains in trust "with dignity and respect . . ."(53) Any disturbance of an unmarked grave in violation of these provisions is a felony.(54) In general, although the West Virginia permit requirements are not triggered as often as those in Washington and Indiana, the protections when triggered are quite strong.

Separating grave desecration from general archaeological crimes creates several problems. First, there are many archaeological sites that are not burials, and the public may think these are open for looting. Second, proof in cultural resource criminal investigations becomes even more onerous when the accused must be linked to a particular burial site. Third, proving intent is often difficult because looters can easily claim that they did not intend to desecrate and that they were only digging for artifacts.(55)

In light of these problems, some archaeologists want consistent legislation for protection of all archaeological sites, including burials.(56) This approach fails to recognize, however, the fundamental difference between burial sites and non-burial sites outside the scientific community. Modern human sensibilities, both Native American and not, are offended by grave desecration to a point far beyond the reaction to ordinary archaeological site looting. Additionally, Native Americans have a strong cultural and spiritual interest in protecting their gravesites against any interference, even well-meaning scientific investigations.(57) These interests should be recognized by imposing stronger penalties for burial disturbances than for ordinary pothunting and strict constraints on osteological (skeletal) research.

An ideal desecration statute would be structured like West Virginia's, with a presumption against disturbance. All disturbance of cultural resources should be tied to an archaeological permit requirement, with felony violations for knowing or reckless desecrations of burials, regardless of location. The granting of the permit for grave disturbance should wait for the consent of the associated tribe or other party with a legitimate connection to the burial. Any accidental discovery of an unmarked grave should be reported to state or local authorities.

3. ARPA Trafficking Provisions

ARPA primarily protects cultural resources located on federal or Indian lands.(58) However, ARPA does allow federal prosecution for looting of sites located on private property as well.(59) This provision is triggered by two requirements. First, the archaeological material must have been obtained "in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law."(60) Second, the person must "sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce . . . ."the artifact or resource.(61)

In the thirteen years since ARPA was passed, the federal government has only prosecuted one case for the looting of a privately owned site.(62) In May and June of 1988, John William Way was driving a bulldozer for Boyd Brothers, a subcontractor on an Indiana state highway project, adjacent to property owned by General Electric Plastics (GE).(63) On the GE property was a Hopewell burial and ceremonial mound, dating back roughly two thousand years.(64) The importance of the mound was unknown, and it was being used as a source of fill material for the highway project.(65) At the start of the project, a contract archaeologist had reported that there appeared to be nothing of archaeological significance at the location.(66) The archaeologist also reminded the work crew that, if anything of archaeological interest was to be discovered during the project, the Indiana Department of Highways and the project engineer should be notified immediately in accordance with state law.(67)

While filling in a pit on the mound, Way discovered several artifacts, including solid copper axheads.(68) As a part-time artifact collector, Way recognized the monetary value of these and collected more than two hundred pieces and brought them to his home in Illinois.(69) This collection included flint spearpoints, drilled bear teeth, copper axheads, shell beads, freshwater pearls, carved pieces of cannel coal, obsidian, and leather.(70) In July 1988, an acquaintance put Way in touch with Arthur Gerber, a well known dealer and organizer of artifact exhibitions. Gerber bought the greater part of the collection for six thousand dollars cash,(71) and as part of the deal, Way led Gerber to the site.(72)

Gerber enlisted two associates and began to "excavate" the site. One associate took the materials extracted from the site to Kentucky.(73) The three returned a few times until they were caught and ejected by a GE employee on August 1, 1988.(74) One associate then sold his share of the collection to Gerber and the other associate.(75) In August of 1988, the two associates together sold some of the flint and chert blades from the site at an artifact exhibition in Kentucky that Gerber had organized.(76) Later, Gerber bought out the other associate's share of the collection for two thousand dollars and an in-kind exchange.(77)

In October 1988, Raymond White, Tribal Chairman of the Miami Nation, reported to federal officials rumors of an unreported archaeological site near the highway project.(78) State officials asked permission from GE to inspect the site.(79). In November or December of 1988, GE erected a six-foot barbed-wire fence around the mound to protect it.(80) Gerber, Way, and Gerber's two associates were charged with various crimes in 1991(81) Defendants Way and Gerber's two associates reached an agreement with the U.S. Attorney to testify against Gerber,(82) who had been charged with two federal felony counts and five misdemeanors.(83)

Gerber's charges included conspiracy to violate ARPA, and purchase of unlawfully removed artifacts from Way.(84) The five misdemeanors were all related to the particular instances of purchase and transport from the site of illegally removed articles, in violation of Indiana criminal trespass and criminal conversion statutes, and Indiana Highway Department Regulations.(85) In addition to the criminal charges, the U.S. Attorney invoked the forfeiture provisions of ARPA(86) and requested forfeiture of all identifiable artifacts from the GE site in Gerber's possession.(87)

In a motion to dismiss, Gerber challenged the validity of both the federal and state statutes.(88) He argued that the ARPA interstate commerce provisions were void for vagueness, and should only be triggered by violations of state or local cultural resource laws, not general statutory violations such as criminal trespass.(89) Gerber also claimed an equal protection violation, arguing that although public lands ARPA violations allow federal land managers to press civil claims as an alternative to, or in addition to, criminal charges, there is no provision for civil penalties in private lands violations.(90) He claimed that the distinction between private lands pothunters and public lands pothunters is an arbitrary classification, resulting in unequal application of the law in violation of the 14th Amendment.(91) The court denied all of Gerber's claims, stating that ARPA is not ambiguous, it can be triggered by any violation of state law, and there is no equal protection violation.(92)

The cultural resource enforcement community eagerly awaited the outcome of this case as the first federal prosecution of looting on private lands. Although Indiana recently passed a criminal desecration statute, this incident took place before the statute took effect. As a result, an ARPA conviction would rest upon violation of ordinary criminal trespass and conversion statutes and Indiana state highway regulations.

However, Gerber signed a conditional plea agreement with the U.S. Attorney on April 17, 1992.(93) He stipulated to all the facts in the indictment and the government dropped the felony charges in exchange for a guilty plea on all five misdemeanor counts.(94) Gerber also agreed to forfeit all the artifacts from the site in his possession and testify before the grand jury in support of the government's continuing investigation of the looting.(95)

Although a felony conviction would have made a powerful statement, the U.S. Attorney was not unhappy with the agreement because any conviction at all will have a deterrent effect.(96) Also, the trial would have been held in southern Indiana, where pothunting is a popular hobby, so there was some worry about jury nullification of the law, as has happened in other ARPA cases.(97) In addition to these concerns, because the ARPA counts rested on violation of state law, the entire case would have turned on the question of whether GE, a large, powerful corporation, was really unaware of the pothunting on its own property.(98) These factors argued against pushing the case to trial. Furthermore, even with the felony counts dropped, Gerber is still exposed to a penalty of up to five years in prison and one-half million dollars in fines, although the government will recommend a lesser sentence as part of the plea agreement.(99)

The question of the validity of the ARPA local-law provision was appealed by both parties to the Seventh Circuit Court of Appeals. The Seventh Circuit handed down its opinion on July 20, 1993.(100) Gerber argued that ARPA only applied to federal and Indian lands, and therefore, the trafficking provisions could not apply to thefts of cultural resources from private property.(101) In the alternative, he argued that the trafficking provisions were only triggered when artifacts were removed in violation of local cultural resources laws, and not laws of general applicability.(102) The court, in a decision by Judge Posner, upheld [sections] 470ee(c) of ARPA. If ARPA applied only to federal and Indian lands, the court said, then the trafficking provision would be completely superfluous; therefore, Congress intended for it to apply to private property as well.(103) The court dismissed Gerber's alternative argument by stating that, although the local law in question must be one that relates to cultural resources, the protection of cultural resources is subsumed within the protection of Indiana's criminal trespass and conversion laws, and therefore [sections] 470ee(c) did apply:

But we do not think that to be deemed related to the protection of

archaeological resources a state or local law must be limited to that

protection .... A law that comprehensively protects the owner of

land from unauthorized incursions, spoilations, and theft could well

be thought to give all the protection to buried antiquities ....(104) Gerber has expressed his intent to appeal the decision to the Supreme Court.(105)

Under Judge Posner's analysis, laws specific to cultural resources are redundant, at least in the context of ARPA's trafficking provisions. This decision, although heartening in that it upheld the validity of ARPA's trafficking provisions, is also disturbing. If a criminal trespass violation is sufficient to trigger federal prosecution, state or local legislators may believe it is unnecessary to institute any more specific protections for cultural resources on private lands. However, using only criminal trespass laws, it is impossible to institute federal proceedings against a landowner who unearths artifacts on his own property and sells it in interstate commerce. In order for ARPA to reach all interstate trafficking in archaeological resources, states must pass specific legislation regarding cultural resources protection, and should not rely solely on criminal trespass and conversion laws.

4. Umbrella Statutes

The United States has only one true umbrella statute. The State of Alabama passed this statute in 1906 and its constitutionality has never been challenged. The central paragraph of the statute states:

The state of Alabama reserves to itself the exclusive right and privilege

of exploring, excavating or surveying, through its authorized

officers, agents or employees, all aboriginal mounds and other antiquities,

earthworks, ancient or historical forts and burial sites

within the state of Alabama, subject to the rights of the owner of

the land ... for agricultural, domestic or industrial purposes, and

the ownership of the state is hereby expressly declared in any and

all objects whatsoever which may be found or located therein.(106)

The Alabama Aboriginal Mounds law also prohibits nonresidents from excavating or removing archaeological artifacts from the state,(107) and directs that all such artifacts shall be collected in state museums and other facilities, unless they are exchanged for similar objects.(108) Violation of any of these provisions is a misdemeanor which can result in a one thousand dollar fine.(109)

The language of this statute is very broad; it does not even recognize federal or tribal claims on these archaeological sites. The state's claims, however, are "subject to the rights of the owner of the land . . . for agricultural, domestic or industrial purposes . . . ."(110) If challenged under a takings argument, this may be enough to save the statute. On the other hand, the statute does little by preserving the owner's right to use the land for industrial purposes at the cost of destroying the resource.

Some of the new state cultural resource and unmarked-burial statutes could also be seen as limited umbrella statutes, because they remove any rights of the property owner to use, transfer, possess, or even (in some instances) handle the resource. Note, however, that the true owners of some of these resources are not the states at all, but those Native American tribes most closely related to the residents of the unmarked graves."(111)

An umbrella statute, as its name implies, does not have as many holes in it as the metaphorical blanket of state and federal laws. However, the umbrella is vulnerable to Fifth Amendment questions about uncompensated government takings of private property. Because Alabama's authority as owner of the resource is subject to the rights of the owner of the land, it is possible that the landowner's interests take precedence over the state's assertions of ownership. This may explain why there are no recorded appellate cases concerning the Alabama law. With this type of mitigating language, a statute loses most of its teeth, and cannot be read as completely asserting state ownership of, or control over, the site. While such a statute becomes less vulnerable to attack, it also loses its usefulness for cultural resource protection.

B. Conservation Programs

1. State Regulatory Controls

Specific state regulation of archaeological investigations overlaps more general state cultural resource protections. This section focuses on survey requirements and land use restrictions for private property containing cultural resources, rather than the permitting process for individual excavations. Planning commissions are often required in their enabling regulations to consider aesthetic, ecological, and historical factors when making planning decisions. Many of these land use restrictions are triggered by the site's eligibility for listing in a state or national register.

Pursuant to statutory authority, the Oregon Land Conservation and Development Commission (LCDC) has developed a series of goals to guide planning decisions in Oregon.(112) The object of Goal 5 is "[t]o conserve open space and protect natural and scenic resources."(113) Goal 5 lists twelve resource categories, including "land with sites, structures and objects that have local, regional, statewide or national historical significance."(114) Under statute, local governments are required to inventory such properties, and "plan to conserve and protect the site[s] in [their] natural condition."(115) Oregon law also allows subdivision of land into units smaller than zoning requirements to protect archaeological or historic resources."(116)

Another way to protect archaeological sites is to use the state's power to regulate certain industries. Indiana, for instance, has a statute allowing the state to step in and prevent a use of property that would damage a cultural resource. This statute, called the Surface Mining Control and Reclamation Act (SMCRA), is administered by the State Department of Natural Resources (DNR).(117) Upon receipt of a permit to undertake a surface coal mining project, the director of DNR may:

impose conditions on a permit for the protection of properties or

sites listed on or eligible for listing on the National Register of Historic

Places or the Indiana state register of historic sites and structures

requiring that mining operations not occur in the areas occupied

or that measures be implemented to mitigate the effects

.....(118)

This regulatory authority was challenged in 1989 in Department of Natural Resources v. Indiana Coal Council when an archaeological society petitioned the DNR to designate a rich archaeological site as unsuitable for surface coal mining under SMCRA.(119) SMCRA allows such a designation if mining will "affect fragile and historic lands in which the operation could result in significant damage to important historic, cultural, scientific, and aesthetic values and natural systems.(120) The Indiana Coal Council and the site owner made their objections known at public hearings, but the director of the DNR issued a final order designating the site unsuitable for surface coal mining.(121) The Council sued on the theory of an unconstitutional taking of private property without just compensation, in violation of the Fifth Amendment.(122)

The Indiana Supreme Court upheld the restriction in light of the U.S. Supreme Court ruling in Nollan v. California Coastal Commission, (123) that "a land use regulation will not effect a taking if it substantially advances a legitimate state interest and does not deprive an owner of economically viable use of his property."(124) The Indiana court noted that legitimate state interests include protection of scenic and historic values.(125) Key factors in this case, however, were that the property had not been acquired with the "intent to mine coal,"(126) and that the restriction stated that the site could be strip mined as long as the landowners first allowed the State of Indiana to perform an archaeological investigation.(127) The landowners were not required to pay for such a project. However, if they refused, they would merely be restrained from mining that particular area, which was not a large portion of the property.(128)

Indiana Coal Council should settle most questions about the constitutionality of this type of state regulation. However, the U.S. Supreme Court recently decided Lucas v. South Carolina Coastal Council, a case concerning land-use regulation for environmental protection. (129) In a decision by Justice Scalia, the Supreme Court turned away from traditional takings analysis, which had turned on a distinction between the prevention of a noxious use and the procurement of a public benefit. Instead, the Court held that traditional concepts of property determined the soundness of land use regulation. "Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with."(130) It is uncertain what the effect of this ruling will be on archaeological regulation.

2. Registries and Certifications

a. National Register

The National Historic Preservation Act of 1966(131) (NHPA) is not a very effective tool for protecting archaeological sites on private lands. First, the NHPA "only protects properties that meet criteria of significance . . . . [Second,] the planning provisions of NHPA apply only to properties included in or eligible for inclusion in the National Register of Historic Places. Under NHPA, eligibility of archeological [sic] sites for the National Register depends on whether they are |significant in American archaeology.'"(132)

Section 106 of NHPA restricts federal actions on property eligible for the National Registry. It requires consideration of certain factors during the government's decision making process. Section 106 is triggered by "provision of assistance or issuance of licenses or permits to non-federal parties both on and off federal lands."(133) Under the terms of NHPA, a listing of private property in the National Register does not necessarily protect the site from private action. "Neither NHPA nor the implementing regulations require that archeological resources be protected, recorded or salvaged. The Act only requires consideration and consultation and grants no substantive protection to sites or artifacts.(134)

The National Historic Landmark program is administered by the National Park Service.(135) Like the National Register program, listing as a National Historic Landmark actively protects only listed sites from federal action.(136) Sites that have been listed as landmarks are monitored every year by the Park Service, which "maintains a variety of programs, such as the National Historic Landmark Fund, to help provide some measure of preservation assistance to Landmark owners.(137)

In conclusion, neither the National Registry nor the National Historic Landmark program supplies much help for protecting privately-owned cultural resources. Eligibility for the National Register, however, may trigger state-level protections of these resources.

b. State Registers

Many states have created programs patterned after NHPA in order to protect sites and structures of more local importance. Virginia grants the Director of the State Historical Department authority to designate "state archaeological sites and state archaeological zones on private property . . . provided that the Director secures the express prior written consent of the owner ....."(138) Once a site has been designated, a permit is required prior to conducting any excavation."(139)

The Kentucky Heritage Council (KHC) has instituted an interesting variation on the state historical registry program. The Kentucky Archaeological Registry (KAR) is intended to help protect sites on private property, without putting legal restraints on the landowners' use of their property or burdening their titles. The staff of KHC consulted with Kentucky archaeologists to develop a list of sites appropriate for a test of the site-registration program.(140) All contact with landowners is kept as cordial as possible, and materials developed bY the Council for the Registry are upbeat and accessible, emphasizing pride in Kentucky's heritage.(141) Landowners who agree to participate receive a plaque and parchment certificate signed by the Governor.(142)

In the written agreement, which designates the site as a Kentucky Archaeological Landmark, the landowner agrees to:

* Avoid altering the site "in a detrimental manner;"

* Notify KHC of a change of address or intent to transfer title;

* Notify KHC "of any threats to the area such as site vandalism,

proposed construction, excavation, or any other ground-disturbing

activities;" and

* Allow on-site inspection to monitor the site's condition and do

research.(143) The landowner and KHC both retain the ability to terminate the agreement with thirty days notice.(144) KHC wants to keep good relations with landowners, to educate them, and give them support in protection efforts. KHC tries to visit every site at least once each year.(145) Participating landowners receive newsletters and invitations to KHC functions.(146)

When landowners decline to participate, it is for one or more of three primary reasons: 1) they have no interest in archaeology or preservation of that particular site; 2) they want to develop or exploit the land for financial gain; or 3) they misunderstand the intent of the program because of its affiliation with the government, and fear restrictions on their use of their own land.(147) Overall, however, the Registry program is quite successful: "After seven months of full-time registry activities, [fifty-nine percent] of the 27 landowners contacted in person by the Registry Coordinator agreed to participate in this voluntary protection program.(148)

Registry programs are a good means of educating landowners and the general public about the importance of cultural resources protection. States can create tax incentives to encourage land-owner participation in the listing process. Certification programs may possibly be connected with land use planning procedures so that listed sites receive extra consideration during zoning and permit decisions. The desire for stronger controls on the property owner's use of the land conflicts, however, with the need for landowners to participate willingly in the program. This tension is not one that can be easily resolved short of a greater appreciation on everyone's part for the need for such protections.

3. Conservation Easements and the Uniform Conservation Easement Act

An easement is a legal interest in land held by someone other than the owner of the land.(149) The holder of a conservation easement (the dominant owner) can enforce the terms of the easement agreement against the landowner (the servient owner) in order to prevent her from damaging the protected aspect of the land in question. This type of arrangement is known at common law as a negative easement because it denies the servient owner certain uses of her land."(150)

Under the common law, a conservation easement could not run with the property because the easement did not benefit the dominant owner in any use of his own property (the benefit was said to be "in gross").(151) Other interests in land similar to easements are real covenants and equitable servitudes. Although covenants and servitudes would allow a conservation burden to be placed on a piece of land, they have strict requirements that must be fulfilled in order for the burden to run. These requirements are complex, esoteric, and burdensome.(152) As a result, conservationists have had difficulty creating means of protecting land from development, short of an outright purchase of the property.

The National Conference of Commissioners on Uniform State Laws approved The Uniform Conservation Easement Act (UCEA) in 1981.(153) The Act rewrites the law of easements to allow negative easements to be held by a governmental entity or nonprofit conservation group in order to protect ecological or cultural resources. The provisions of the Act allow third-party enforcement of the easement terms, and allow the burden to run indefinitely if the terms of the agreement so specify.

The Act thus makes it possible for Owner to transfer a restriction

upon the use of Blackacre to Conservation, Inc., which will be enforceable

by Conservation and its successors whether or not Conservation

has an interest in land benefitted by the restriction,

which is assignable although unattached to any such interest in

fact, and which has not arisen under circumstances where the

traditional conditions of privity of estate and "touch and concern"

applicable to covenants real are present. . . . [U]nder the Act, the

restrictions and obligations bind successors.(154)

Many states have now either adopted the UCEA or passed laws similarly overriding the common law restraints on easements for the purposes of conservation. For instance the Arkansas Commemorative Commission can purchase an easement in the public interest."(155) Idaho law also allows the state to hold a conservation easement, but prohibits the state from creating an easement by condemnation.(156) Illinois allows county boards to purchase conservation easements, but only in or near preservation districts."(157)

Like other forms of conservation, nonpossessory interests are ineffective in their protection of cultural resources if no one is aware the resource exists. Thus, a strong easement program, whether administered by a governmental entity or a nonprofit organization, should be interwoven with a survey program. At a minimum, a public education program with a contact number for reporting new sites should be instituted. This would enable members of the public to report suspected sites to the local planning commission or the entity administering the easements. A list of sites compiled and used for obtaining easements could be kept confidential, whereas a site survey for rezoning purposes must be disclosed. In fact, easements are preferable to land use regulations in that they are less likely to result in a complaint about regulatory takings.

Protecting cultural resources with easements has its drawbacks, however. Enforcement is the major problem; traditionally, an easement is enforced by suing the party who has violated it. Cultural resources, however, are by definition irreplaceable; the easement holder may win a lawsuit against the servient owner or a trespasser, but the money is useless in the context of that resource.(158) Because identification of the looter is often difficult or even impossible, the conservation group's only option may be limited to suing the servient landowner. Unfortunately, this would destroy the good relationship between the conservation group and the landowner and create a disincentive to sell easements to the group in the future."(159)

4. Acquisition in Fee by State or Private Party

The last, and in some ways most obvious, means of preventing damage to private sites is to purchase the site. The Santa Fe-based Archaeological Conservancy has been doing this since 1979."(160) Through outright purchase, bargain sale, or gift, the Conservancy acquires sites that it considers threatened and keeps them until they can be turned over to the government or a nonprofit group with the resources to protect them.(161) In many cases, the Conservancy sets up a 100-year research management plan to preserve the resource for future scientists with better research techniques."(162) In other instances, the Conservancy has transferred the site in fee to a state university(163) or to an adjacent state or national park.(164)

Some state entities have the ability to buy private sites in fee. The Delaware Land and Water Conservation Trust Fund is authorized to purchase any right in real property necessary to protect scenic, archaeological, recreational, or wildlife resources."(165) The Georgia legislature also has granted the state authority to purchase or accept by donation private lands with archaeological sites to add to the state park system.(166) The Kentucky legislature has given the University of Kentucky Anthropology Department authority to purchase archaeological sites in fee on behalf of the state.(167)

An example of nonprogrammatic state action can be seen in the events surrounding the Honokahua cemetery on the island of Maui. In 1986, a developer initiated plans to build a hotel on three acres of waterfront property that happened to be an ancient Hawaiian burial site."(168) The state had earlier declared the site a "|special management area,' which meant that anyone planning to build there had to have a more detailed archaeological survey taken before a construction permit would be granted for the site."(169) Within two years, a team of workers led by a contract archaeologist disinterred 1,000 bodies dating to the late 18th century(170) By 1988 public opinion was strongly opposed to the hotel.(171) In December 1988, Governor John Waihee stepped in and temporarily halted the project.(172) Finally, in 1989, the Hawaii legislature used five million dollars to purchase the site from the developer; five hundred thousand dollars was used to rebury the disinterred remains.(173)

Some conservationists feel that acquisition in fee is the only effective way to preserve archeological resources; anything less is too uncertain and subject to changes in state and local property law.(174) However, fee acquisitions by state and private groups are still subject to constraints, especially financial constraints. In economically difficult times, when social services and education budgets are receiving decreased funding, few states or municipalities can justify spending money to save an archaeological site from development. Fee ownership is more expensive to obtain than easements, and landowners may be less willing to sell property outright.

In addition, few state zoning regulations allow property to be subdivided for the purpose of protecting cultural resources. Under Oregon law, for example, the minimum lot size may be waived for the purpose of selling or granting an easement to protect cultural resources (so that in an area with two-acre zoning requirements, a landowner may sell to a conservation group a one-quarter-acre plot with a gravesite on it). California law, however, does not allow such a waiver.(175)

One may argue that nonpossessory interests provide better protection for cultural resources than actual acquisition of the land. For instance, concurrent use of the land makes it less likely that the site is left unattended, thus discouraging pothunters. "A bull in a pasture protected by a conservation easement will do far more to discourage pothunters than the strongest fence around a vacant field protected by a fee simple absolute interest.(176) On the other hand, the bull's weight and habits may damage the very resource he is supposed to protect. Concurrent uses must be restricted to those that will not result in damage or exposure of the resource.

III. SUMMARY

The blanket of legal protections described in the preceding pages is an odd patchwork: close-knit in some spots; loosely woven, and even unravelling, in others. In general, the federal deterrence programs, ARPA and NAGPRA, have gone as far as possible within the Constitution's constraints on federal power. This loose net can catch only pothunters who enter interstate commerce. Even then, ARPA's enforcement mechanisms will be triggered only if the pothunting violated local or state laws. NAG-PRA criminalizes only trafficking for profit in grave goods or skeletal materials obtained without authorization. Although these programs are powerful, the gaps between their strands must be filled by deterrence statutes at lower levels, that specifically address the destruction of cultural resources on private lands. Local and state deterrence programs work best when tied to a permit requirement for any disturbances of cultural resources, with strict penalties for unauthorized burial site disturbances. It is also imperative that local authorities confer with Native American leaders when setting the guidelines for issuing permits. West Virginia's disinterment permit process is exemplary in that it expressly requires Native American input for each permit granted, and includes strict controls on what may be done with skeletal materials.

Conservation programs must be interwoven with deterrence efforts. Most conservation programs can only be developed practicably at the state or local level, or through private agencies. Since some state registry programs are connected with the permit requirements, it would make sense to provide stronger penalties for disturbance of a cultural resource that has been granted some level of official recognition. Another possibility is to create a conservation easement for properties listed in state registers. However, the burden on the title might deter landowners from listing their property.

The Kentucky Archaeological Registry is a laudable effort to combine easements and certifications, providing both an education program and a conservation program. Unfortunately, the program does not provide the legal means to prevent the landowner from disturbing the resource. Ironically, landowners are afraid that certification does just that, and thus are reluctant to join the program. Further education and clearer program materials may serve to rectify this problem. For both certifications and easements, the carrot may be preferable to the stick because landowners are more likely to protect the site if they receive a tangible benefit, such as a tax break, from that protection.

Land use planning and regulatory agencies should require surveys and inventories, and share such information with conservation groups and historic agencies so that the most effective form of protection for each site can be developed. Although planning programs appear to be an ideal means of protecting cultural resources, the requirement that all decisions be made available on the public record can counteract protection efforts: publicly available information on site locations will help pothunters, rather than hinder them. Thus, conservation by way of planning commissions would be useful only for sites that are commonly known in the community and which, by corollary, have already been looted.

Purchase of archaeological sites in fee is a dubious proposition for states and municipalities which are short of revenues, and an expensive option for even the most well-funded conservation organizations. Once purchased, unless the site is part of a regularly used park system, or is fenced and monitored, the resource is still not safe from pothunters. Public notice of such unusual transactions serves to educate the public about the importance of protecting cultural resources, which is an additional benefit beyond that of merely saving the resource.

In sum, the key to protection of cultural resources on private lands is integration. Governmental agencies, private conservation organizations, archaeological associations, and Native American groups need to combine their efforts in order to reduce redundancies and improve the effectiveness of their protection efforts. Local and state programs should capitalize on federal incentives for protection, interweave deterrence and conservation efforts, and encourage public education projects. If these efforts fail, and our archaeological and cultural heritage is utterly despoiled, one of our nation's greatest resources will be wasted, depriving future scholars of an invaluable treasury of knowledge, and betraying the trust both of the ancient peoples who laid their bones to rest in this land and their descendants who walk this land today. (1.) Carl Waldman, Atlas of the North American Indian 1-2 (1985). (2.) See generally 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 (1992). (3.) Pete V. Domenici, Preface B, in Protecting the Past at v-vi (George S. Smith & John E. Ehrenhard eds., 1991). See also Harvey Arden, Who Owns Our Past?, Nat'l Geographic, Mar. 1989, at 376-93. (4.) See generally Antiquities Act, 16 U.S.C. [sections] 431-433 (1988); National Historic Preservation Act of 1966, as amended (NHPA); 16 U.S.C.A. [sections] 470 - 470w-6 (1992), Archaeological Resources Protection Act of 1979, as amended (ARPA), 16 U.S.C. [sections] 470aa - 47011 (1988). (5.) Pub. L. No. 96-95, 93 Stat. 721 (1979) (codified as amended at 16 U.S.C. [sections] 470aa-470ll (1992)). (6.) 16 U.S.C. Section 470ee. See supra notes 62-108 and accompanying text. (7.) Va. Code Ann 10.1-2302 (Michie 1989) (emphasis added). (8.) Kristine Olson Rogers, Visigoths Revisited: The Prosecution of Archaeological Resource Thieves, Traffickers, and Vandals, 2 J. Envtl. L. & Litig. 47, 73 (1987). See, e.g., 16 U.S.C. [section] 470kk(c). (9.) See, e.g., Lucas v. South Carolina Coastal Council, 112 S. Ct. 2886 (1992). (10.) Department of Natural Resources v. Indiana Coal Council, 542 N.E.2d 1000 (Ind. 1989), cert. denied, 493 U.S. 1078 (1990). (11.) Guat. Const. art. 121 (f), quoted in Jonathan S. Moore, Enforcing Foreign Ownership Claims in the Antiquities Market, 97 Yale L.J. 466, 471 n.26 (1988). (12.) Moore, supra note 11, at 470, 471 n.26. (13.) Id. at 471. (14.) See White v. Brown, 559 S.W.2d 938 (Tenn. 1977). (15.) 16 U.S.C. [sections] 470ee. (16.) See supra notes 112-130 and accompanying text. (17.) Ala. Code [section] 41-3-1 (1991). (18.) Id. [sections] 41-3-1 to -6. (19.) Id. [sections] 41-3-6. (20.) Ind. Code [sections] 14-3-3.4-15(a) (1990). The legislature imposed the same controls and penalties on unapproved archaeological investigations of "historic property" on state-owned or leased property. Id. Section 14-3-3.4-7. (21.) Id. [subsections] 14-3-3.4-15(6), 35-50-3-2. (22.) Id. [sections] 14-3-3.4-18. Presumably this provision allows the state some discretion in deciding which sites really need protection. Archaeologists Cheryl Munson and David Pollack point out that one of the strengths of the Indiana statue is that the Historical/Archaeological division is part of the state Department of Natural Resources. Thus, enforcement of archaeological crimes is undertaken by conservation officers, who generally have more time and interest in such matters than the state or local police. Cheryl Ann Munson & David Pollack, From ARPA to ZILCH. Protection of Archaeological Sites on Private Lands (Symposium on Recent Efforts in Archaeological Site Protection, Society for American Archaeology, 56th Annual Meeting, April 24-28, 1991, New Orleans)(unpublished manuscript on file with Environmental Law). (23.) W. Va. Code [sections] 29-1-8a(c) (1991). (24.) Id. (25.) See generally Rogers, supra note 8. (26.) Wash. Rev. Code [sections] 27.53.060 (1991). (27.) Id. (28.) Or. Rev. Stat. [sections] 358.920 (1991). (29.) Lynell Schalk, U.S. Bureau of Land Management Enforcement Officer, Address Before the Archaeological Resources Protection Seminar, Northwestern School of Law of Lewis and Clark College (Jan. 22, 1992). (30.) Pub. L. No. 101-601, 104 Stat. 3048 (1990) (codified as amended at 25 U.S.C. [subsections] 3001-3013 (Supp. 1993). (31.) 25 U.S.C. Section 3001(13). NAGPRA defines "cultural items" as including funerary objects, sacred objects, and cultural patrimony. Id. [sections] 3001(3). (32.) Susan Shown Harjo, Last Rites for Indian Dead: Treating Remains Like Artifacts is Intolerable, L.A. Times, Sept. 16, 1989, pt. 2, at 8. (33.) Id. (34.) Id. (35.) Tom Dunkel, A Nation's Heritage at Risk, Insight on the News, Feb. 17, 1992, at 12, 15. (36.) See generally Arden, supra note 3. (37.) Trope & Echo-Hawk, supra note 2, at 52. (38.) Ind. Code [sections] 14-3-3.4-15(a) (1991). The Indiana statute does not provide, however, for consultation with Native American groups about the reinterment of disturbed human remains; nor does there appear to be any means of consulting with them when burial sites are discovered. Regard for the treatment of human remains is wedged, in effect, between concern for landowners' interests and protecting professional and amateur archaeology. Id. Section 14-3-3.4-20(b). (39.) Id. [sections] 14-3-3.4-17. (40.) Id. [sections] 35-50-2-7. (41.) Id. [sections] 14-3-3.4-16. (42.) Id. (43.) Wash. Rev. Code Section 27.44.020 (1991). (44.) Id. (45.) Id. (46.) Id. [sections] 27.44.040. (47.) Id. [sections] 9A.20.021. (48.) Wash. Rev. Code Section 27.44.040 (1991). (49.) W. Va. Code [sections] 29-1-8a(c) (1991). (50.) Id. [sections] 29-1-8a(e). (51.) Id. (52.) Id. (53.) Id. [sections] 29-1-8a(h). (54.) W. Va. Code [sections] 29-1-8a(h) (1991). (55.) Munson & Pollack, supra note 22, at 6. (56.) Id. (57.) Bob Robideau, Repatriation = Protection of Our Ancestors, Interview with Michael Haney, Spirit of Crazy Horse, Dec.-Jan. 1992, at 4. (58.) 16 U.S.C. [subsections] 470aa - 47011 (1990 & Supp. 1992). (59.) Id. Section 470ee(c). (60.) Id. The mere violation of a municipal ordinance would trigger the broad language of this section. (61.) Id. (62.) Telephone interview with Larry Mackey, Assistant U.S. Attorney, Indianapolis, Ind. (Feb. 3, 1992). (63.) Prosecutive Version at 1, United States v. Way, No. EV 91-13-CR (S.D. Ind. 1991). (64.) Indictment at 4, United States v. Gerber, No. EV 91-19-CR (S.D. Ind. July, 1991). (65.) Prosecutive Version, United States v. Way, supra note 63, at 2. (66.) Indictment, United States v. Gerber, supra note 64, at 5. (67.) Prosecutive Version, United States v. Way, supra note 63, at 5. (68.) Id. at 2. (69.) Id. at 2-3. (70.) Id. (71.) Id. at 4. (72.) Prosecutive Version, United States v. Way, supra note 63, at 4. (73.) Plea Agreement at 1, United States v. Towery, No. EV 91-21-CR (S.D. Ind.); Indictment at 13, United States v. Gerber, No. EV 91-19-CR (S.D. Ind. July, 1991). (74.) Indictment, United States v. Gerber, supra note 64, at 13. (75.) Id. at 12. (76.) Id. at 14. (77.) Id. at 15. (78.) U.S. Attorney for the So. District of Indiana, News Release at 5 (Apr. 17, 1992). (79.) State Might Be Too Late to Save Burial Ground, UPI, Dec. 2, 1988, available in LEXIS, Nexis Library, UPSTAT File. (80.) Indians to Have Ceremony on Disturbed Grounds, UPI, Jan. 16, 1989, available in LEXIS, Nexis Library, UPSTAT File. (81.) Indictment, United States v. Gerber, supra note 64; Indictment, United States v. Way, No. EV 90-32-CR (S.D. Ind. May 31, 1991); Indictment, United States v. Glover, No. EV 91-20-CR (S.D. Ind. July 12, 1991); Indictment, United States v. Towery, No. EV 91-21-CR (S.D. Ind. July 12, 1991). (82.) Plea Agreement at 3, United States v. Way, No. EV 91-13-CR (S.D. Ind. Mar. 22, 1991); Plea Agreement, United States v. Towery, supra note 73, at 2; Plea Agreement at 2, United States v. Glover, No EV 91-20-CR (S.D. Ind.). (83.) Indictment, United States v. Gerber, supra note 64. (84.) Id. (85.) Id. These were presumably charged as misdemeanors and not felonies because of the difficulty of proving the value of the artifacts removed once they were scattered or mingled with materials from other sites. (86.) 16 U.S.C. [sections] 470gg(b). (87.) Indictment, United States v. Gerber, supra note 64, at 25-27. (88.) See generally Motion to Dismiss, United States v. Gerber, No. EV 91-19-CR (S.D. Ind. Dec. 2, 1991). (89.) Id. at 1-15. (90.) 16 U.S.C. [sections] 470ff. (91.) Motion to Dismiss, United States v. Gerber, supra note 88, at 21-22. (92.) Order Denying Motion to Dismiss, United States v. Gerber, No. EV 91-19-CR (S.D. Ind. Jan. 28, 1992). (93.) Telephone interview with Scott Newman, Assistant U.S. Attorney, Indianapolis, Indiana (Apr. 17, 1992). (94.) Id. (95.) Id. (96.) Id. (97.) See United States v. Barnes and Bender, CR. No. 81-119-BE (D. Or. 1982) (a locally-selected jury acquitted defendants on all counts). (98.) Telephone interview with Scott Newman, supra note 93. (99.) News Release, supra note 78, at 3. (100.) United States v. Gerber, 999 F.2d 1112 (7th Cir. 1993). (101.) Id. at 1113. (102.) Id. (103.) Id. at 1115. (104.) United States v. Gerber, 999 F.2d 1112, 1116 (7th Cir. 1993) (emphasis in original). (105.) Letter from Larry Mackey, Assistant U.S. Attorney, Indianapolis, Indiana (August 3, 1993). (106.) Ala. Code [sections] 41-3-1 (1991). (107.) Id. [sections] 41-3-2. (108.) Id. [sections] 41-3-5. (109.) Id. (110.) Id. [sections] 41-3-1. (111.) See generally Trope & Echo-Hawk, supra note 2. (112.) Or. Rev. Stat. [subsections] 197.015(8), .040(2)(a) (1991). (113.) Bureau of Governmental Research and Serv., Univ. of Oregon, Guide to Local Planning and Development 2-34 (1984). (114.) Id. at 2-35. (115.) Id. at 2-34. (116.) Telephone interview with Lynn Dunbar, Western Regional Director, Archaeological Conservancy (June 24, 1992). (117.) Ind. Code [sections] 13-4.1 (1991). (118.) Id. [sections] 13-4.1-4-3.1(b). (119.) Department of Natural Resources v. Indiana Coal Council, 542 N.E.2d 1000, 1002 (Ind. 1989), cert. denied, 493 U.S. 1078 (1990). (120.) Ind. Code [sections] 13-4.1-14-4. (121.) Indiana Coal Council, 542 N.E.2d at 1002. (122.) Id. (123.) 483 U.S. 825 (1987). (124.) Department of Natural Resources v. Indiana Coal Council, 542 N.E.2d 1000, 1002 (Ind. 1989), cert. denied, 493 U.S. 1078 (1990) (citing Nollan v. California Coastal Comm'n, 483 U.S. 825, 834 (1987)). (125.) Id. at 1005. (126.) Id. at 1004. (127.) Id. at 1005. (128.) Id. at 1002. (129.) 112 S. Ct. 2886 (1992). (130.) Id. at 2892. (131.) Pub. L. No. 89-665, 80 Stat. 915 (1966) (codified at 16 U.S.C.A. [sections] 470 - 470w-6 (1992)). (132.) Jonathan P. Rak, Federal Protection of America's Archaeological Resources, 5 Preservation L. Rep. (NTHP) 2001, at 2011 (1986). (133.) Id. (134.) Id. at 2012. (135.) 16 U.S.C. [sections] 470 - 470w-6. (136.) A. Gwynn Henderson, The Kentucky Archaeological Registry: Citizen-Based Preservation for Kentucky's Most Significant Archaeological Sites 73 (1988). (137.) Id. at 74. (138.) Va. Code Ann. [sections] 10.1-2304 (Michie 1989). (139.) Id. (140.) Henderson, supra note 136, at 21-25. (141.) Id. at 25-36. (142.) Id. at 29, 101-02. (143.) Id. at 143. (144.) Id. (145.) Henderson, supra note 136, at 41-42. (146.) Id. at 42. (147.) Id. at 62-63. (148.) Id. at 85. (149.) See generally 25 Am. Jur. 2D Easements and Licenses [sections] 1 (1966). (150.) See id. [sections] 8. (151.) See id. [sections] 93; see also Henderson, supra note 136, at 78. (152.) See, e.g., Houston v. Zahm, 76 P. 641 (Or. 1904). (153.) National Conference of Commr's on Uniform State Laws, Uniform Conservation Easement Act, in Land-Saving Action 111 (Russell L. Brenneman & Sarah M. Bates eds., 1984) (hereinafter Uniform Act). (154.) Uniform Act, supra note 153, at 111. (155.) Ark. Code Ann. [sections] 15-20-410 (Michie 1987). (156.) Idaho Code [sections] 55-2101, -2107 (1988). (157.) Ill. Ann. Stat. ch. 34, para. 5-30004(10) (Smith-Hurd 1992). (158.) Telephone interview with Lynn Dunbar, supra note 116. (159.) Id. (160.) The Archaeological Conservancy, N.Y. Times, June 27, 1982, [sections] 1, at 23; Lynn Dunbar, The Archaeological Conservancy: Information For Landowners (Archeological Conservancy, Santa Fe, N.M.) 4 (1992). (161.) Dunbar, supra note 160, at 5. (162.) Butterfield Site Donated, The Archaeological Conservancy Newsletter (Archaeological Conservancy, Santa Fe, N.M.), Summer 1983, at 1. Dunbar, supra note 160, at 5. (163.) Dunbar, supra note 160, at 2. (164.) See, e.g., Petrified Forest Ruin Acquired, The Archaeological Conservancy Newsletter (The Archeological Conservancy, Santa Fe, N.M.), Winter 1984-85, at 1, 3. (165.) Del. Code Ann. tit. 7, [subsections] 7501-7509 (1991). (166.) Ga. Code Ann. [sections] 12-3-50 to -52 (Michie 1992). (167.) Ky. Rev. Stat. Ann. [sections] 164.735 (Michie/Bobbs-Merrill 1991). (168.) W.S. Merwin, The Sacred Bones of Maui, N.Y. Times, Aug. 6,1989, [sections] 6, at 21. (169.) Id. (170.) Id. (171.) Id. (172.) Id. (173.) Trope & Echo-Hawk, supra note 2, at 53. (174.) Glenn F. Tiedt, An Introduction to Conservation Easements for Colorado Archaeologists, in Land-Saving Action 127 (Russell L. Brenneman & Sarah M. Bates eds., 1984). (175.) Telephone interview with Lynn Dunbar, supra note 116. (176.) Tiedt, supra note 174, at 129-30. (*) J.D. 1993, Northwestern School of Law of Lewis and Clark College; B.A. 1986 University of Massachusetts. The author thanks Kristine Olson Rogers for her encouragement and assistance.
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Author:Callahan, Constance M.
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Date:Jun 22, 1993
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