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The Archaeological Resources Protection Act (ARPA), passed in 1979 and amended in 1988, is intended to protect archaeological artifacts on federal lands from theft and damage. Although ARPA has been an important tool in charging and prosecuting looters and vandals, its “valuation” provision has proved vexing to cultural resource managers.
Placing a monetary value on irreplaceable expressions of the public’s historic heritage is difficult to reconcile with professional ethics that strive to protect such resources for the public to enjoy and to keep them off the open market. Nevertheless, legal procedure requires monetary valuations during prosecutions under ARPA. Terms such as “priceless,” “incalculable,” and “a wealth of information” will not hold up in court, and a witness’s refusal to provide reasonable valuation may result in charges being dropped or convictions overturned.
For the theft or damage of an archaeological resource to be prosecuted as a felony under ARPA, three conditions must be met: the resource must be at least 100 years old and must be listed on, or eligible for, the National Register of Historic Places; it must be on federal or Indian land; and it must have commercial or archaeological value. For higher penalties, the commercial or archaeological value must exceed $500. The penalty cannot exceed twice the amount of the commercial (fair market value) or archaeological value (including restoration costs) of the resource. In civil cases, penalties cannot exceed the archaeological or commercial value combined with costs of restoration and repair.
Under ARPA, archaeological resources may have three quantifiable values:
Perhaps the easiest for cultural resource managers to tackle is archaeological value. This has generally been defined as the cost of a reasonably complete effort to recover the data from the site. In other words, if a site it looted, the archaeological value would be the cost of preparing a research design, excavating the site, analyzing the data, writing a report, and curating all related artifacts and records. These costs are calculated as if the site had not been damaged. Unlike commercial value, archaeological value accounts for the loss of information caused by looting or vandalism. An assessment of archaeological value is required for any heritage resource that is archaeological.
Archaeological value can refer only to the particular resource that was stolen or damaged, or it can be calculated for the entire site. Either figure can be used in setting a penalty.
For rock art, the archaeological value would include costs associated with professional recording of the site and additional associated research such as pigment analysis, radiocarbon analysis, and the like.
The value of a heritage resource can also be calculated as the costs of restoration or repair and/or stabilization of the damaged site. A looted site cannot be readily repaired, but it may require work to keep archaeological deposits from eroding away or collapsing and to camouflage or limit access to the site in order to prevent further looting. For rock art, a professional conservator can provide a cost estimate for repairing damage from graffiti. These costs include all research, consultation, and report preparation necessary to repairing or stabilizing the site. This value is not required for archaeological resources, but may be presented to the court in addition to archaeological value.
The most complicated and distasteful valuation for cultural resource managers refers to commercial or market value. Although federal heritage resource managers are not accustomed to thinking of sites and artifacts on public lands as saleable commodities, ARPA prosecutions and penalty determinations can be aided by such information. As long as the valuation is based on a consistent and reasonable calculation, it should hold up well in court.
Several methods can yield a monetary or market value for rock art that has been damaged or stolen. First, one can find comparable examples that have been sold—for example, rock art removed from private property and sold privately or publicly. This method is difficult to apply simply because rock art rarely comes up for sale. An alternate method is to apply insurance value. Locate a museum that has specimens of rock art in its collections and find out how much insurance coverage these items have. A third method is to calculate the difference in value between genuine archaeological specimens and reproductions. For example, if a reproduction Mimbres pot typically sells for $200 and a genuine pot sells for $200,000, or a reproduced Paleoindian point sells for $7, as opposed to $7000 for a genuine one, then the genuine article is documented to be worth about 1000 times the value of a reproduction. If reproductions of petroglyphs are selling at $300 per piece, then the actual petroglyph can be assigned a value of $300,000. Remember that figure would apply to each individual petroglyph or pictograph, rather than to the site as a whole.
Finally, one can consult a reputable antiques or art appraiser for an estimate based on his or her professional training and experience.
Valuations must be based on empirical evidence, not on subjective opinion, and they must be credible to an average person. While a petroglyph may be considered a priceless part of a tribe’s heritage or of incalculable archaeological importance, these values cannot be effectively defended in court, as a recent case from Nevada shows. In that case, two men were acquitted of unlawful excavation of archaeological resources because the prosecution failed to provide an estimated market valuation of petroglyph boulders they stole from Forest Service lands. Their conviction for stealing federal property held up under appeal, but their conviction for unlawful excavation of archaeological resources was overturned because the Forest Service failed to prove that the petroglyph boulders were worth at least $1000 and that the men knew, or should have known, they had archaeological value.
Remember that judges and prosecutors cannot simply agree with you that vandalism to a rock art site deserves to be punished: they must follow the provisions of ARPA. Be prepared to submit archaeological valuation, and in many cases costs of restoration or repair and commercial value as well, and to detail how you calculated each one.
In criminal cases, the penalty cannot exceed two times the sum of the commercial and archaeological values. In this case, archaeological value includes restoration and repair costs, as well as research costs.
In civil cases, the damages cannot exceed the costs of restoration and repair , added to either archaeological value or commercial value.
For more information, please see:
US Sentencing Commission Annotated Cultural Heritage Guideline for Training and Reference Purposes
National Park Service Archeology Program Technical Brief 20: Archeological Resource Damage Assessment: Legal Basis and Methods http://www.cr.nps.gov/archeology/pubs/techBr/TCH20.htm
The article above was written by Linea Sundstrom.