Laws directed at protecting archeological sites frequently target those located on state or federally owned property, but many sites are located on private property. These sites represent a significant portion of the identified sites in many states, meaning that large numbers of our nation's archeological resources are not protected.
INTRODUCTION
For at least 12,000 years, men, women, and children have lived, worked, and played in what is now the United States. Archeological sites can tell their stories. A jasper projectile point embedded in the rib of a deer tells of a successful hunt. A ring of charcoal-blackened stones tells of many meals cooked for the hunter and his family. A trash pit contains the debris of 19th-century household domesticity - a worn-out scrub brush, a favorite tea cup accidentally broken, wine bottles and plate scrapings from a holiday dinner, a child's marble, and a cameo brooch lost but not forgotten. A rectangle of cut stone painstakingly laid by hand forms the foundation of a long-gone house that was home to five generations of cotton farmers.
As repositories of information about 12 thousand years of human history, archeological sites are more than soil layers containing objects discarded, lost, abandoned, or intentionally buried. But since most archeological sites have little or no above-ground evidence, they are often difficult to recognize. More often than not, this means that archeological sites, and the historical information they contain, can be damaged or destroyed by well-intentioned but uninformed landowners who continue using their land or seek to improve its value through development.
Private landowners and local communities are becoming increasingly aware of their archeological heritage and are seeking ways to protect it and to explain archeology's stories to the public. Although federal agencies are required by law to consider the effects their projects may have on archeological sites and other historic places, such federal law does not generally apply to private actions if there is no federal involvement in the activity.
Archeological protection guidance currently available focuses primarily on how federal agencies can combat site looting and vandalism by implementing the provisions of the Archaeological Resources Protection Act and other federal laws; how the Native American Graves Protection and Repatriation Act can ensure sensitive treatment of burials and repatriation of Native American cultural items;¹ and how possible impacts of federally assisted projects on important sites can be considered in compliance with Section 106 of the National Historic Preservation Act and with other federal laws. Information is also available on historic preservation techniques at the local level, but this guidance tends to focus on buildings rather than archeological sites. There is little guidance on how to protect archeological sites on private lands, especially those sites that may be facing development by non-federally assisted private and public actions.
Before taking steps to apply any site protection strategy, it is important to understand what archeology is, the many values of archeological sites, actions that threaten those values, and legal aspects of archeological site protection. These issues help in deciding which protection strategies may be effective in particular situations. A number of protection techniques rely on the law for their effectiveness. Owning full or partial interest in an archeological site can be a very effective protection strategy. Promoting the compatibility of land use with archeological site protection through local ordinances and development processes and by incorporating archeology in local historic preservation ordinances are important techniques that focus on regulating uses and activities on lands that contain archeological sites. Laws specific to archeology ensure that appropriate professional standards are followed in investigating archeological sites, that archeological materials are properly cared for, and that penalties are imposed on those who violate the law. A number of tax benefits are available as incentives for protecting archeological sites and other valued historic and natural areas.
Archeological site protection cannot be accomplished effectively by regulation alone. Non-regulatory techniques are important strategies for protecting archeological sites. Voluntary stewardship programs not only help protect sites, but they also help build a preservation ethic and a sense of community responsibility and pride in the community's archeological heritage. These programs also offer opportunities for the public to learn about archeology and get involved in archeological site protection activities. Long-term management programs are essential in strengthening archeological site protection. Various site stabilization techniques help protect archeological sites from erosion and vandalism. Signs not only educate the public about the history of the site, but also warn of relevant legal protection and penalties. Community archeology programs strengthen archeological site protection through professional administration of relevant ordinances. These programs also provide an important focal point for community interest in archeology through citizen involvement and education in archeological activities.
It is important to include a variety of protection strategies in the site protection "tool kit" to consult legal and strategy experts, and to be creative in applying combinations of protection techniques.
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The developer of this townhouse project in Fairfax County, Virginia allowed the County Archeologist and volunteers from the Northern Virginia Chapter of the Archeological Society of Virginia to rescue important information from this site, but it was a hazardous undertaking. There are more effective strategies for protecting archeological sites than "hard-hat archeology." Archeological site protection depends upon balancing archeological site values, the interests of the public to know about the past, the legal rights of landowners, and community values and goals. (Photo courtesy of Heritage Resources Branch, Fairfax County, Virginia, Office of Comprehensive Planning) |
WHAT IS ARCHEOLOGY?
Archeology evokes varying images for different people. For many, archeology is an adventure - the escapades of Indiana Jones and the curses of King Tut's tomb. For others, archeology is romance, mystery, and the "thrill of discovery" - being able to hold objects that haven't been touched by human hands for hundreds or thousands of years. In reality, archeology is all of this and more. Archeology is also the scientific study of past human lifeways through the systematic observation and analysis of the material remains of human activities.
Archeologists in the United States study human lifeways of all time periods. The period from at least 12,000 years ago up until Old World explorers and settlers arrived encompasses the rich history of Native American life on the North American continent. This time period has been traditionally called prehistory by archeologists because there are no written records of these times. For this time period, archeology is one of our best ways to understand the long, rich history of Native American life. The arrival of explorers and settlers from Europe, Africa, and Russia occurred at different times in various parts of the country and ushered in what archeologists call the contact period. Archeological sites of this period document the political, military, economic, and social interactions between Native Americans and Old World explorers and settlers. Historical archeology covers the period for which there are written records. Historical archeologists use written information together with archeological information to produce a richer and more complete understanding of the past than either could if used alone.
The primary focus of archeological attentions is the site -- a place where human activity occurred. Native American sites include short-term camps, villages, hunting stations, and quarries. Historic period sites are quite varied, and include farmsteads, stores, mills, mining complexes, craft shops and factories, wharves, canals, villages, taverns, schools, and urban centers.
An archeological site has horizontal and vertical dimensions. Horizontally, a site may be a few feet across, or may cover several hundred acres or more. Vertically, a site may contain archeological materials only on the ground surface, such as the scatter of stone chips remaining after an Indian hunter has sharpened his weapons and moved on, or archeological materials may be as much as a several dozen feet deep, such as a 200-year-old ship hull sunk as a foundation for urban waterfront landfill. Some archeological sites may be underwater, such as inundated dry-land sites, shipwrecks, or wharves.
Few archeological sites are simple and straightforward. Most are complex, containing diverse elements, or components, each of which may represent a different activity, time period, or, often, both. For example, a 19th-century farmstead with a house, a springhouse, a barn, three sheds, a well, a privy, a garden, and several livestock enclosures has at least ten components. These components represent household and personal activities, dairy production, livestock husbandry, gardening, and other farming activities. Studying only one component of this site -- the remains of the house, or one of the trash dumps, for example -- would give a very limited picture of the richness and diversity of farmstead life. All site components bear a relationship to one another, and all components, including the buildings and landscapes, need to be studied in order to understand the way of life once carried out at this site.
Soil layers provide an additional dimension to components in a site, by providing information about the passage of time. For example, the alternating layers of soil, rubble, and debris in an old cellar hole tell about the use, abandonment, and gradual filling of the cellar through superimposed lenses and layers of discarded items, structural collapse, ashes, soil washed through a breached wall, and episodes of trash dumping. An archeological site can also be created over hundreds of years through the gradual accumulation of debris during regular, periodic use of a particular place by generations of human occupation. Soil layers help archeologists understand site chronology, or the time periods when different activities took place at the site. Generally, the lowest soil layer represents the oldest activities, and the top-most soil layer represents the most recent site activities.
Each component and soil layer of an archeological site contains the data of archeological study - artifacts, features, and ecological evidence. Artifacts are objects manufactured by hand or machine, such as pottery bowls, porcelain plates, metal hinges, glass bottles, shell beads, and stone projectile points and scrapers. Features are immovable manufactured objects, larger than artifacts, such as buildings, walls, trash pits, fire pits or hearths, and wells. Features often contain artifacts, or have artifacts associated with them. Ecological evidence, or ecofacts, provides information about the site's environment, which may or may not have been altered or affected by human actions at the site. This evidence can include soils, seeds, pollen, other plant remains, animal bone, shells, and charcoal.
The spatial and temporal relationships among the site's soil layers, artifacts, features, ecological evidence, and components, and between one site and others, are critical to understanding the past human activities and social processes. A basic assumption underlying all archeological study is that human behavior is not random, and that the patterning observable in the relationships among a site's elements is directly related to that behavior. It is this aspect of archeological study that enables archeologists to explain what happened at a site, when, and why, thereby increasing our knowledge about the past.
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Aerial view of Cliff Palace, a ca. 1200 A.D. Anasazi cliff dwelling in Mesa Verde National Park, Colorado. Archeological study of this magnificent village, carried out since the late 19th century, has taught us how these people lived in the high desert. About 250 people lived here in cluster of apartment-like rooms that have been associated with family groups or clans. Ceremonies were held in circular, below-ground rooms called "kivas." In irrigated farm plots on the nearby mesa top, corn, beans, and squash were cultivated, and turkeys were raised. The Anasazi exercised great artistry in making baskets, pottery, sandals, cotton cloth, netting and cordage, ornaments of turquoise, shell, and copper, and stone, bone, and wood tools. (Photo courtesy of Bruce J. Noble, Jr.) |
THE VALUES OF ARCHEOLOGICAL SITES
One of the fundamental values of archeological sites lies in the information that sites contain and the knowledge that can be gained from their study. Closely related is a site's research or scientific value - the ability of a site's information to be used in answering important questions about the past - and a site's interpretive or educational value - the ability to use the site itself or the results of research to teach others about the past.
The key characteristic of archeological sites that gives them their information value is the intact quality of their information content. Intact spatial and temporal relationships among soil layers, artifacts, features, ecological evidence, and components, and, for historic period sites, the existence of documentary information, enable archeologists to identify patterns that can be associated with human behavior and social processes. Where these relationships have been damaged or destroyed, our ability to study and learn about the past is markedly impaired or lost forever. At most, what we have left are objects, curiosities, that may be interesting or even pleasing to look at, but which have lost most if not all of their information value.
We are none of us born in a vacuum. We all are products and recipients of tens of thousands of years of biological and cultural history. This history, working with our present-day surroundings, affects our every thought, our every action. Knowledge of this past, just as knowledge about our environment, is essential to our survival, and the right to that knowledge is and must be considered a human birthright. Archeology, the recovery and study of the past, thus is a proper concern of everyone. It follows then that no individual may act in a manner such that the public right to knowledge of the past is unduly endangered or destroyed. ... Archeological data, including the archeological objects themselves, falls into the domain of public interest and concern. Even though private funds may finance archeological research and private citizens may collect relics using their own resources, no one owns exclusive rights to an archeological object or, even more important, to archeological data any more than the owner of a Rembrandt has exclusive rights to that painting. An individual or a corporate body may be the legal owner or repository of such data or such an object, but in a certain undefined, perhaps undefinable but nonetheless very real sense, objects of art and scientific information belong and are rightfully a part of the heritage of everyone. Legal possession does not automatically carry with it the right of destruction, and no individual or corporate body possesses the right permanently to deprive the public of any significant part of that heritage.
NOTE: The public's right to knowledge about the past in no way implies a legal right to the objects that help convey that knowledge.
Archeological sites may also possess other values for communities and particular groups of people. These values, often called community values or traditional cultural values, are ascribed by a community, ethnic group, or Indian tribe to archeological sites and other places associated with its cultural practices or beliefs that are rooted in the community's history and are important in maintaining the continuing cultural identity of the community. The kinds of sites that can have these values include a site where a community has traditionally carried out economic, artistic, or other cultural practices important in maintaining its historical identity; a site where Native American religious practitioners have historically gone, and are thought to go today, to perform ceremonial activities in accordance with traditional cultural rules of practice; and a rural community whose organization, buildings, and patterns of land use reflect cultural traditions valued by its long-term residents. Traditional cultural values are often central to the way a community or group defines itself, and maintaining such values is often vital to maintaining the group's sense of identity and self respect. Archeological sites to which traditional cultural value is ascribed can take on this kind of vital significance, so that any damage to or infringement upon them is perceived to be deeply offensive to, and even destructive of, the group that values them.²
In the winter of 1970, high tides and large, storm-driven waves eroded and undermined the hillside, exposing timbers from five plank houses. Archeological excavations were carried out to rescue the cultural materials from being washed away into the sea. This work revealed a complete material culture record that paints a uniquely rich picture of ancient tribal lifeways. Makah elders call the archeological collection a "Gift from the Past."
The Ozette archeological collection is housed, curated, and exhibited in accordance with appropriate Makah traditions at the Makah Cultural and Research Center, which was established to oversee and coordinate programs affecting the culture and cultural education of the Makah people. Through the Center, the Makah have control and management of their own cultural patrimony, which helps them maintain cultural ties with their ancestral village. A Makah tribal member lives at the Ozette site to monitor its condition, protect it from vandalism, and to answer visitors' questions.
Listed on the National Register of Historic Places, the Ozette Archeological District contains a number of other places of traditional cultural value for the Makah in addition to the Ozette village site, shown in the foreground of this photo. In the background is Cannonball Island, which was used in the past, and is still used today, as a navigation marker for Makah fishermen. The island was also a lookout point for seal and whale hunters and for war parties, and a kennel for dogs raised for their fur.
For additional information on traditional cultural values associated with physical places, see National Register Bulletin 38, Guidelines for Evaluating and Documenting Traditional Cultural Properties, by Patricia L. Parker and Thomas F. King, and Keepers of the Treasures, by Patricia L. Parker.
(Photo from the files of the National Register of Historic Places, National Park Service, Washington, D.C.)
CAUSES OF SITE DAMAGE
Archeological sites are fragile, and there are a variety of agents that can change, damage, or destroy not only the spatial and temporal relationships of archeological information, but also the self identity of groups that ascribe traditional cultural values to archeological sites. There are four general categories of forces that can damage or destroy archeological sites and their values: natural forces, human action, institutional action, and legal and regulatory procedures (see box).
Natural Forces
Forces of nature act continually on archeological sites, and range from the relatively minor activities of earthworms and freeze-thaw cycles to major catastrophic events such as earthquakes and volcanic eruptions. Many natural forces have acted in conjunction with human action over time to form the archeological site, and archeologists have developed techniques to understand how natural forces affect the formation of archeological sites (see, for example, Formation Processes of the Archaeological Record by Michael B. Schiffer). Other destructive actions, such as erosion and patterns of plant growth, have actually helped archeologists find archeological sites. Some natural forces have worked to encapsulate sites that were later discovered and productively studied by archeologists. Notable examples are the Italian city of Pompeii, buried by the volcanic eruption of Vesuvius in the first century A.D., and the Makah village of Ozette that was covered by a massive mudslide on the Northwest coast of the United States. In general, however, natural forces change and even destroy archeological information by increasing the decay of perishable organic materials such as fabrics, basketry, and leather, and by disrupting the spatial and temporal relationships of archeological information.
Human Action
By far the most varied and damaging forces on archeological sites are caused by human actions, and by associated institutional actions and legal or regulatory procedures (discussed below). Looting and vandalism are major sources of site damage and destruction. Several studies have begun to identify the magnitude of the problem. According to the report of the Society for American Archaeology's Conference on Preventing Archaeological Looting and Vandalism:
Motivation for site looting and vandalism varies. Archeological sites are "mined" for commercial profit in the Southwest where artifacts have monetary value on the national and international art markets. In other areas, sites are looted to acquire relics for personal collections or smaller scale profit at hobby shows. This kind of activity is illegal on federal, tribal, and most state and local public lands, and the number of successful prosecutions is increasing. However, site looting is rarely prohibited on private lands.
Although site damage and destruction from looting is deliberate and intentional, other damaging human and institutional actions occur largely because of ignorance of a site's existence or importance. Despite a general, widespread public fascination with archeology and learning about the past, consideration of archeological sites is not usually a factor in the daily conduct of individuals, government, and business.
Institutional Actions
Although it may seem strange to include archeological excavation as an action that damages or destroys sites, this is what happens. The act of removing soil layers and artifacts disrupts the relationships of information within the site, impairs its traditional cultural values, and can result in the loss of some information. This is why archeologists insist on high levels of professional competence, use precise excavation techniques, and keep detailed written and photographic records of the excavation process. Archeological information can be lost through inadequate record-keeping, lack of analysis and reporting, ineffective land management, and inadequate or incomplete assessment of impacts on sites. From our vantage point in today's highly technological world, it is easy to find fault with losses of information on archeological sites that were investigated decades ago using older methods. We need to ensure that our "modern" archeological methods do not produce similar criticisms by the archeologists of the future.
Land development and resource exploitation activities continue to increase as the nation's growing population demands ever more food, housing, and manufactured goods. Each of the actions listed in the Causes of Site Damage box involve land modifications that can damage or destroy archeological sites. While not intentional, some of these activities take a greater toll on archeological sites than do others. Agricultural activities, such as land-leveling and plowing, may either move archeological materials around and mix materials from separate and distinct soil layers, or totally destroy the site, depending upon the shallowness or depth of the archeological remains. Massive land modifications that accompany flood control projects, large-scale residential developments, and interstate highway construction, for example, can cause the loss of hundreds of archeological sites that represent entire communities that thrived in the past.
Legal and Regulatory Procedures
Laws and regulations may require or prohibit individual or institutional actions that unintentionally cause archeological damage or loss. For example, in many local communities the major legal mechanism for protecting historic properties is the historic district ordinance. Only a handful of these ordinances, however, have provisions that consider archeological sites. In those communities whose historic district ordinance lacks such a provision, archeological sites can easily be overlooked as actions approved under the ordinance are carried out. Many local governments manage future growth of their communities through a comprehensive or master plan. When archeological sites and other historic properties are not considered in such a plan, local government decisions about land use and development can lead to the loss of archeological sites. Regulatory procedures, such as those for approving grading or construction permits, can also have the same effect if the presence of archeological sites is not considered.
ARCHEOLOGICAL SITE PROTECTION AND THE LAW
"Protecting archeological sites" means shielding them from actions or forces that could damage or destroy the information they contain or the values the community places on them. There are a variety of such forces facing archeological sites, and protection strategies need to be tailored to the type and magnitude of the force to be protected against.
All of the causes of site damage described previously have one characteristic in common - disturbance of soil, which disrupts the fundamental nature of archeological information and the link between the site and the group that values it. Archeological sites are an inherent part of the land, at least until they are excavated properly or destroyed through any of the activities previously discussed. Individual or institutional decision-making that governs how the land is used, or what activities can occur there, will affect archeological sites. Therefore, site protection depends on the extent to which these decision-making processes take archeological values into consideration. In certain situations, these processes are outlined in law, such as land-use or real property law. In other cases, influencing decisions to be sensitive to archeological sites depends upon overcoming ignorance of archeological values through educating the decision-makers and the general public.
The highest priority strategy for protecting archeological sites is preservation in place. Protecting a site in place, undisturbed, with long-term management, is a strategy of banking the site in order to maintain its value to the community or, when appropriate, until research and excavation can be properly accomplished. Preservation in place and site management does protect the site from damage, but when an archeological site has value for the information it contains, this value cannot be fully realized until it is systematically excavated, its information analyzed, and the resulting knowledge widely shared. Banking the site provides the necessary time and opportunity to raise the funds needed to carry out carefully planned investigations of the site. In addition, the ongoing development and application of advanced scientific technologies to the study of archeological sites means that we can learn even more about the past than we could using archeological techniques considered state-of-the-art just decades ago. Protecting archeological sites in place creates a bank of sites for future investigation using even more sophisticated technologies that will further increase our knowledge of the past.
Not all sites should be excavated. Traditional cultural values often rely on a site remaining undisturbed and unstudied. Establishing a mechanism to preserve the site in place, or avoiding the site during construction activities, without providing for its long-term management and appropriate future study is short-sighted. This merely delays the site's destruction or protection until another threat arises. Strategies for preservation in place should always be accompanied by a long-term preservation management and research plan that sets in motion specific activities, such as maintenance, monitoring, interpretation, or fund-raising.
Special Considerations
Protecting an archeological site requires a different preservation approach than that used to protect historic buildings, which can continue to be economically productive while being protected. Archeological site protection strategies depend on limiting the kinds of activities that can occur on a piece of land, and resemble more closely those mechanisms used to protect land and natural resources.
Since archeological sites are legally owned by the title holder of the land in which the sites exist, protecting them by limiting the uses of that land creates a tension among the rights of landowners to use their land, the interests, even "rights," of the public to know about the past, and the rights of certain groups to visit and use sites to which they ascribe traditional cultural value. It is important to keep in mind that many archeological sites and other places that have traditional cultural value for Native American tribal groups are located not on Indian lands but on privately owned lands. As reported by Patricia L. Parker in Keepers of the Treasurers,
The interests of Native American tribes in their ancestral places, especially in their burial sites, are supported by legal statutes at the federal level and in many states.
While courts have upheld the authority of state and local governments to regulate the uses of private property, recent U.S. Supreme Court and lower court rulings on Fifth Amendment "takings" cases have made private property rights headline news. The Fifth Amendment "takings" clause states, "nor shall private property be taken for public use without just compensation." When private property is physically taken, as for a highway, the owner must be compensated for the land taken. The issue is not so clear in regulatory takings, when government enacts a law that regulates what an owner may or may not do with his or her property. This is a complicated issue, and courts review each case individually. In general, if the owner retains reasonable economic use of the property, if the regulation promotes a valid public purpose, and if there is a direct relationship ("nexus") between the legislative purpose and the means to achieve it, then there is not a "taking" that requires compensation, according to Richard J. Roddewig and Christopher J. Duerksen in Responding to the Takings Challenge.
An additional complication is that while archeological sites are not, in and of themselves, marketable commodities, and it is difficult if not impossible to assign a market value to them, the land of which they are a part does figure heavily in the marketplace and does have market value. Market value also forms the basis for real estate taxes and land values. In fact, land tends to be treated primarily as an investment commodity, rather than as a resource deserving stewardship.
While it would be tempting to build a fence around an archeological site and put up "Keep Out" signs, protecting archeological sites is not that simple. The rights of the property owner, the interests or rights of the public in learning about the past, the interests and rights of Native American tribes, other community goals, and state and local laws must be balanced against the values of the archeological site in order to create workable and successful protection strategies.
² This paragraph is excerpted from "Guidelines for Evaluating and Documenting Traditional Cultural Properties" by Patricia L. Parker and Thomas F. King. National Register Bulletin 38. Interagency Resources Division, National Park Service, U.S. Department of the Interior.
The Archaeological Conservancy - www.americanarchaeology.com
Archaeological Institute of America - www.archaeology.org
National Conference of State Historic Preservation Officers - www.sso.org/ncshpo
National Association of State Archaeologists - http://nasa.uconn.edu/
National Park Service
Society for American Archaeology - www.saa.org
Society for Historical Archaeology - www.sha.org
THE PUBLIC RIGHT TO KNOWLEDGE ABOUT THE PAST
GIFT FROM THE PAST
The ancient Makah Indian village of Ozette, located on the Pacific Coast of Washington state, was occupied continuously for several thousand years. Although a portion of the village was buried by a catastrophic mudslide about 500 years ago, some Makah people stayed on until the 1930s, when they moved north to Neah Bay, the social and economic center of the Makah reservation.
CAUSES OF SITE DAMAGE
American Indians often retain deep emotional ties to the ancestral lands that were ceded by treaty or lost in war. In those ancestral places lie the graves of their ancestors and other significant sites that the tribes are seeking to protect.
The owner and developer of this project in Northern Virginia have every right to build these homes, provided the project complies with local land-use regulations and other state or federal requirements that may apply. The appearance of such signs on a property is not the time to raise issues of archeological site protection. The owner and developer have already invested large sums of money and have complied with relevant laws and received government approvals for the project, or are in the process of doing so. Protecting archeological sites requires not only a knowledge of the relevant laws, but also a respect for the rights of private landowners. (Photo courtesy of Heritage Resources Branch, Fairfax County, Virginia, Office of Comprehensive Planning)
¹ Cultural items are defined in the Native American Graves Protection and Reparation Act as human remains, funerary objects, and objects of cultural patrimony. For additional information, see "Managing Reparation: Implementing the Native American Graves Protection and Reparation Act" by Francis P. McManamon.
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