Abstract
There is a generally accepted belief that a well publicised prosecution, which results in the conviction of the offenders will deter crime by sending out a ‘clear message’ to those intending to offend. Those who seek to enforce the legal protection of antiquities and archaeological sites will often decry the number of prosecutions brought, and urge a more aggressive prosecution policy against looters and traffickers in antiquities. However a prosecution may not always produce the anticipated outcome of deterrence. In this article a lawyer examines a recent high profile operation undertaken by the Federal Bureau of Investigation and the Bureau of Land Management against looters and traffickers in the south west of the United States for breaches of the Archaeological Resources Protection Act of 1979 and its outcome. It will begin with a short consideration of the context in which the prosecutions were brought: the scale of looting in the area; the difficulties facing those who have to enforce the law; the legal and historical background, and the belief of many in the area that they have a right to dig for artefacts and to collect or sell them. It will then consider ‘Operation Cerberus Action’ and its consequences in some detail, drawing on contemporaneous newspaper accounts and blog comments to illustrate that a prosecution, even where it results in conviction of all the defendants, may be counterproductive, serving only to entrench existing attitudes rather than encouraging behavioural change in intending looters and traffickers.
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Notes
The ‘Four Corners’ region of the US is the area on the borders of the States of Utah, Colorado, Arizona and New Mexico.
Although the accepted description is now ‘Native American’, many such people would describe themselves as ‘Indian’. The term ‘Indian lands’ is used within ARPA to describe land owned by tribes, and many tribes employ an official called the ‘Indian’ or ‘Tribal’ Historic Preservation Officer. This article will therefore use the term Indian, rather than Native American, where this is appropriate.
Note that under ARPA it is not an offence to remove artefacts from privately owned land, or to traffic in them.
As all archaeological resources are declared to be federal or Indian property under the Act, offenders may also be charged with theft of federal or Indian property.
These tribes are the most populous in the region where the Four Corners prosecution was brought, with the Navajo being in the majority.
Many of the direct quotations in this article are taken from newspaper and magazine articles. For these page numbers are not available, but instead a link to where these sources may be accessed on-line is included in the references.
In the American context ‘prehistoric’ refers to the period before European settlers and written records—that is to before AD1500.
Which has a population of about 3300.
In direct quotations American spelling will be retained.
For example, the Blanding doctor James Redd and his wife, Jeanne, in 1996 had been accused in state court of desecrating the grave of an ancient Indian while pot hunting, but the charge was struck out by the appeals because Utah law required the prosecution to prove the body had been intentionally buried, which they could not (Henetz 2009a). Three of the defendants were close relatives of Earl Shumway who had convictions under ARPA including one for which he received a custodial sentence of five and a half years (Henetz 2009a, United States v Shumway 1997).
The curation of these artefacts would prove very expensive for the federal authorities as they had to be held in museum standard, climate controlled storage, with security cameras to protect them from theft. The more sacred items, such as ceremonial and funereal items, also had to be kept separately from the other items (Romboy 2011). Items subject to repatriation under the Native American Graves Repatriation Act 1990 also needed to be identified, and their cultural affiliation determined to enable them to be returned.
Under section 6 of ARPA any second offence (felony or misdemenour) is subject to a maximum penalty of a fine of up to $100,000 and/or up to 5 years imprisonment.
Section 8 of ARPA provides for the forfeiture of all archaeological resources connected to the ARPA offence, in the possession of any person, together with vehicles and equipment used in the offence.
For information on this see the Portable Antiquities Scheme website at http://finds.org.uk/.
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Shelbourn, C. Operation ‘Cerberus Action’ and the ‘Four Corners’ Prosecution. Eur J Crim Policy Res 20, 475–486 (2014). https://doi.org/10.1007/s10610-014-9243-9
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DOI: https://doi.org/10.1007/s10610-014-9243-9