by Tracy C. Brown
We here at the Archaeology in Tennessee blog do not claim to be licensed attorneys, and the text of this blog post should not be taken or construed as legal counsel. If you need such counsel, please contact a licensed attorney in your state or U.S. territory. With that said, the owner of this blog has spent a great deal of the past 26 years working on federal contract projects that involved compliance with the many federal statutes and regulations applicable to protection of the environment in the United States. More than five of those years were spent as the lead Environmental Compliance Specialist for Battelle Memorial Institute (Oak Ridge), a federal prime contractor for the U.S. Department of Energy. Collectively, the texts of these environmental statutes and regulations are voluminous, complex, and highly detailed―much more so than the current federal cultural resource management statutes and regulations. Multiple volumes of these environmental laws and regulations easily fill several shelves in a bookcase. Over the years, our blog owner has found that certain general principles and interpretive rules of thumb apply to the content of virtually all federal statutes and regulations, regardless of the specific subject matter that they address. Therefore, with his input, this blog feels reasonably qualified to offer some thoughts on the Jimmy Carter Clause and the confusion surrounding it within the American artifact collector community. This post is provided as a free public service of the Oak Ridge Archaeological Research Institute.
The Archaeology in Tennessee blog is taking this opportunity to (once and for all we hope) clear up one of the great and abiding mysteries within the communities of people who collect Native American artifacts in Tennessee and throughout the United States. This mystery involves the so-called Jimmy Carter Clause in the federal Archaeological Resources Protection Act of 1979 (ARPA). What is this great mystery? Well, an artifact collector might explain it something like this:
That there Jimmy Carter Clause in ARPA says in black-and-white English that it is okay for us Indian relic collectors to do surface hunting for arrowheads on federal lands. This law plainly makes it legal for us to do it. Jimmy Carter was President of the United States when he signed ARPA into law back in 1979, and because he too was a surface arrowhead hunter down in Georgia, he made sure the U.S. Congress put in an exemption for us collectors when they wrote this law. We don’t understand why federal agencies like the Bureau of Land Management, Tennessee Valley Authority, and U.S. Army Corps of Engineers are breaking this law right and left by arresting us, fining us, and sending us to prison for surface collecting arrowheads on federal lands. How can they do this to us and get away with it?
The text of the now famous Jimmy Carter Clause is located at 16 U.S.C. 470 (ee)(g), and it refers back to 16 U.S.C. 470 (ee)(d) in the same Act. These two texts read as follows:
(d) Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (b), or (c) of this section shall, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both: Provided, however, that if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500, such person shall be fined not more than $20,000 or imprisoned not more than two years, or both. In the case of a second or subsequent such violation upon conviction such person shall be fined not more than $100,000, or imprisoned not more than five years, or both. [16 U.S.C. 470 (ee)(d)]
(g) Nothing in subsection (d) of this section shall be deemed applicable to any person with respect to the removal of arrowheads located on the surface of the ground. [16 U.S.C.470 (ee)(g) – a.k.a. The Jimmy Carter Clause]
The level and extent of artifact collector confusion about the Jimmy Carter Clause becomes obvious when one visits any of the major, on-line artifact forums where collectors congregate to discuss their latest finds and a host of other issues, including federal statutes and regulations that can adversely affect their collecting activities. The regulatory discussions sometimes degenerate into silliness because of a lack of comprehensive legal knowledge and a misunderstanding of how the legal system actually operates. Consequently, the collectors often generate some of the oddest homespun legal theories about artifact collecting that we have ever seen. When a truly knowledgeable person shows up and tries to clarify the matter in truthful legal terms, a few of the collectors understand, others go into classic psychological denial of the plainly presented truth, and others get very angry that a person with real knowledge would dare to show up and set them straight on the matter. The messenger of truth can be fairly well assured that he or she will be banned from making future comments on the forum. When a knowledgeable person does not intervene with legal facts and truth, the group discussion often ends with discussant agreement on some homespun legal theory that is highly liable to eventually result in fines and/or prison time when the collectors go out and implement it.
First, we address the question: “Does the Jimmy Carter Clause in ARPA make it legal for artifact collectors to surface hunt for arrowheads on federal lands?”
The answer is a profound “NO.” Take a look at the following definition of the term archaeological resource in the ARPA statute and then look at the ARPA prohibition beneath it:
(1) The term “archaeological resource” means any material remains of past human life or activities which are of archaeological interest, as determined under uniform regulations promulgated pursuant to this Act. Such regulations containing such determination shall include, but not be limited to: pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal materials, or any portion or piece of any of the foregoing items. Nonfossilized and fossilized paleontological specimens, or any portion or piece thereof, shall not be considered archaeological resources, under the regulations under this paragraph, unless found in an archaeological context. No item shall be treated as an archaeological resource under regulations under this paragraph unless such item is at least 100 years of age. [Section 3(I)]
(a) No person may excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under section 4 of this Act, a permit referred to in section 4(h)(2) of this Act, or the exemption contained in section 4(g)(1) of this Act. [Section 6(a)]
The term arrowhead clearly falls under the definition of an archaeological resource. Arrowheads are definitely the material remains of past human life or activities, they are of archaeological interest, and they are considered to be weapons, weapon projectiles, or tools. There is no way they can escape from that definition. When you consider this simple fact in combination with the stated prohibitions in Section 6(a), ARPA does indeed prohibit the removal of arrowheads from the ground surface on federal lands. Therefore, in answer to the first collector question above, the Jimmy Carter Clause does not make it legal for artifact collectors to surface hunt for arrowheads on federal lands. It is illegal to do so.
Second, we now address the question: “Then how does the Jimmy Carter Clause help artifact collectors?”
The answer to this one is pretty simple. If artifact collectors decide to go ahead and violate the ARPA prohibition on surface collecting for arrowheads (only) on federal lands, the Jimmy Carter Clause protects them from the severe ARPA penalties set forth above in 16 U.S.C. 470 (ee)(d). Please note that the ARPA regulation at 43 CFR 7.3 (b) defines an arrowhead as “any projectile point which appears to have been designed for use with an arrow.” Most of the prehistoric projectile points/knives collectors pick up on the ground surface were never used on arrows. They were used as atlatl dart points or knives. So, they are not arrowheads. The term “arrowhead,” as officially defined in ARPA, does not include any other type or class of Native American artifacts. It refers to arrowheads that were used on arrows only….period.
Third, we now address the question: “Then does that mean artifact collectors can surface hunt for arrowheads illegally on federal lands and have blessed assurance that the Jimmy Carter Clause protects them from all arrests, prosecutions, fines, and imprisonments?”
The answer is an emphatic “NO.” Clearly, the federal government believes artifact collecting on federal lands is wicked. Either intentionally or unintentionally, it has laid a subtle trap for artifact collectors by omitting key language from the Jimmy Carter Clause. As the Holy Bible says, there is no peace for the wicked.
The master ring for this trap is the term exemption, which means to cancel the applicability of a law or regulation in an official way. Exemption language is most often used when the text of a new federal statute or regulation conflicts with the text of already existing federal statutes and regulations. In such cases, the writers of the new statute or regulation often include specific text that exempts individuals, organizations, or other entities from certain conflicting requirements in the already existing statutes and regulations. The Congressional legal staff members who wrote the ARPA statute did not incorporate any exemption language for these other statutes and regulations into the text of the Jimmy Carter Clause [16 U.S.C. 470 (ee)(g)]. If the writers had incorporated exemption text into the Jimmy Carter Clause, it might read something like the following today:
(g) Nothing in subsection (d) of this section shall be deemed applicable to any person with respect to the removal of arrowheads located on the surface of the ground. To the extent that this statute is in conflict with already existing federal statutes and regulations, the text of subsection (g) shall supercede and nullify their applicability to surface collecting for arrowheads on federal lands.
The omission of such exemption language from the Jimmy Carter Clause might have been a simple mistake, or it might have been intentional. Who knows? If this omission was intentional, a famous farmer’s lament about 19th century federal land grants in Kansas would certainly apply to the situation: “The federal government has given it with one hand and taken it away with the other.” Whichever the case might be, it is indeed absent from the law, and that absence alone is the root of the trap waiting for artifact collectors.
Fourth, we now address the question: “In practical terms, what does the omission of this exemption language in the Jimmy Carter Clause mean for the person who illegally collects arrowheads on federal lands—and what exactly is this trap?”
Completely apart from ARPA, it means all other existing federal laws and regulations applicable to artifact collecting on federal lands remain in full force. For example, other federal laws and regulations make it illegal to trespass on, steal, or vandalize federal property. Arrowheads and other artifacts on federal lands are considered to be federal property. Indeed, according to the U.S. Department of the Interior, Bureau of Land Management, collecting archaeological resources, including arrowheads, on federal lands violates 43 CFR 8365.1-5(a)(1), the Antiquities Act of 1906, and Title 18 of the United States criminal code. These other federal laws and regulations have their own unique sets of harsh penalties (prison time and/or monetary fines) for violations—apart from ARPA.
If a person collects arrowheads, prehistoric ceramics, or other types of ancient artifacts on federal property, he is in violation of those other laws―regardless of what is stated in ARPA and its Jimmy Carter Clause. To reiterate, federal authorities can still legally nail a collector’s hide to the wall for violating any of the other federal statutes or regulations applicable to collecting arrowheads and other artifacts on federal lands and in federal waters because ARPA does not contain any exemption language that turns off the applicability of these other federal statutes and regulations. This is why surface hunting on Tennessee Valley Authority lands (and waters) and other federal lands (and waters) can get artifact collectors into really big trouble. Read that word “trouble” to mean prison sentences and/or fines. In other words, if you could click your fingers right now and make ARPA disappear by magic (never existed before, does not exist now, and never will exist), the federal authorities can still use these other laws and regulations to prosecute you successfully for collecting arrowheads and other artifacts on federal lands and in federal waters.
It should also be noted here that ARPA and the other federal laws discussed above make it illegal to dig, scratch around in the soil, or metal-detect for prehistoric and historic-era artifacts on federal lands and in federal waters. That includes in federally owned or controlled river, lake, and stream bottoms and in the federally owned or controlled banks of rivers, lakes, and streams. And yes, just in case you were wondering, that does indeed mean that if you just quietly ease your fishing boat up beside a federally owned or controlled river, lake, or stream bank; see the base of an arrowhead barely sticking out, and you pry it out of the soil to take it home with you—the federal authorities can and will use these laws to prosecute you.
Contrary to what you may have heard through some artifact collector grapevine or what you may have assumed about the inherent fairness of the American justice system, there are no special provisions or legal loopholes that give artifact collectors a break from possible prosecution. There are no special provisions or legal loopholes that allow a casual hiker, vacationer, or 5-year-old kid to pick up just one accidentally encountered artifact, stick it in her pocket, and take it home. Whatever homespun legal theory you may have developed about all of this by your own fireside or by talking with your collector friends, you can take that theory straight to the trash can right now. It will not fly when that federal officer steps up and says: “What are you doing out here on the river banks today? Collecting artifacts?”
All of this boils down to one thing and one thing only: Never, never, never ever remove any artifact from federal lands or waters. Period. If you do, well, I will let Martha Reeves and the girls tell you in this video clip:
If you are an artifact collector, you just read the above text, and you watched the video, you are probably sitting there shell shocked. Your last tiny measure of hope has been dashed.
One typical collector response to the hard, cold, dead truth is something along the lines of:
But, but, but—I was always told that the Jimmy Carter Clause gives us collectors some kind of special break—a real out. I just never knew what that special out was— and no one could ever explain it to me.
It has now been explained to you. If you are collecting prehistoric artifacts or historic-era artifacts on federal lands or in federal waters, there really is no special break or special out that comprehensively protects you from arrest and prosecution.
Another typical collector reaction is denial of the truth. This is the same precise reaction a mom has when she learns that her 10-year-old daughter Cindy has just been killed in a car wreck.
No, my Cindy is not dead!!! She can’t be!!! I refuse to believe it!!! They must have her mixed up with someone else!!!
Truth is—Cindy is dead as a doornail—and there is no escaping from that simple fact. There is also no escaping from the dead cold fact that it is illegal to hunt for artifacts on federal lands and in federal waters—and doing so could get your meat just as dead as Cindy (figuratively speaking).
Another typical form of collector denial about ARPA goes something like this:
I don’t think the above explanation about the Jimmy Carter Clause is true. He’s just one man, and he ain’t even a lawyer. How in the hell would he know what the law says? I’m not buying it!!!
This person, in the midst of their denial, will go out collecting on federal lands or in federal waters with supreme personal confidence in their ability to discern what they regard as the written crap here on the blog—until that very special moment when they hear the clicking sound of handcuffs behind their back. This article on the Jimmy Carter Clause in ARPA is your wake-up call!!! It is time to wake up. Better do it!!!
The final most typical collector denial response is something along the lines of the following:
I refuse to believe that a free country like ours could ever come up with such a deeply hollow, sneaky, and deceitful law like ARPA to control a respectable American hobby that is nearly 200 years old—and then actually sign that law into effect. It’s just unbelievable!!! It’s not right!!! It’s not fair!!! It’s just downright unAmerican and another example of a tyrannical federal government overreaching its legitimate powers and trying to stick its nose into the personal lives and affairs of ordinary people.
Well, regardless of what you think, the federal government went ahead and did just that. All the denial in the world will not change that one basic fact. If you collect artifacts on federal lands and/or in federals waters, chances are good that you will eventually get caught and will have your “hide nailed to the wall.” (That was one of my dad’s favorite expressions in his role as what he called “the working man.”)
In decades past, federal agencies had neither the will nor the manpower to fully enforce these other laws that are applicable to artifact collecting. As a result, convictions of collectors were often few and far between, especially here in the eastern United States. However, in recent years, this has been changing. Federal agencies such as the U.S. Army Corps of Engineers have been specifically schooling their agency law enforcement officers on how to go about identifying and nailing artifact collectors on federal lands here in the East. What was once spotty and “hit or miss” enforcement has become a conscious, intentional, and highly focused effort to identify, arrest, and punish collectors who break the law. The U. S. National Park Service requires all federal agencies to complete and submit a standardized annual report (Questionnaire on Federal Archaeology Program Activities) about the cultural resource management activities on their lands and facilities, and this report is required to include a detailed summary of recent agency efforts to prevent looting of archaeological sites on agency lands and of their successes in prosecuting those who do the looting. Basically, the success of federal agency anti-looting and enforcement activities is being monitored and tracked annually. Whenever an agency activity is monitored and tracked, it creates increased pressure on agency employees to perform and demonstrate positive results in terms of arrests, prosecutions, and convictions. This means that artifact collectors who violate federal laws applicable to artifact collecting on federal lands and in federal waters are now in more peril than ever before. As the old saying goes, “If you can’t do the time, don’t do the crime.”