The Jimmy Carter Clause in ARPA – Part II: The “Bird Points” Argument

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 subject matter that they address. Therefore, with his input, the blog feels reasonably qualified to offer some thoughts on the Jimmy Carter Clause and the confusion surrounding it within the artifact collector community. This post is provided as a free public service of the Oak Ridge Archaeological Research Institute.

Although the Archaeological Resources Protection Act of 1979 uses the term arrowhead twice in its text, the statute itself never formally defines it. However, the federal regulations under ARPA at 43 CFR 7.3 (b) officially define an arrowhead as “any projectile point which appears to have been designed for use with an arrow.”

For many generations in American culture, any pointed-looking stone tool with a hafting area and an overall length of about 3 inches or less has been referred to colloquially as an arrowhead. Any such tool longer than about 3 inches has been referred to colloquially as a spearhead. From an archaeological perspective, these colloquialisms are bogus. Most of these so-called arrowheads were actually used on atlatl darts or as knives, hence the professional lithic term projectile point/knife (pp/k). Fluted points such as the famous Clovis, Folsom, and Cumberland specimens were actually hafted to narrow bone foreshafts set into the ends of sturdy wooden spears, which means that they were actually spear points. Generally speaking, only the very smallest and most delicate projectile points were used on the tips of arrows. Two of the most common examples in the American southeast were Hamilton and Madison points. Over the years, many artifact collectors have referred to these as bird points because someone surmised long ago that their tiny size suited them only for bagging small birds during ancient hunting trips. Can you say “bluebird”?  That too is now considered to be major bogus.

Some collectors of Native American artifacts are topical collectors, which means they prefer to collect a particular kind of artifact. For example, in Texas, some artifact collectors are enamored with the very small, dentate, eccentric-looking bird points that are presumed to have been used on the business end of ancient arrows. Other topical collectors prefer Hamilton and Madison points.

In Part I of our discussion on the Jimmy Carter Clause in ARPA, we mentioned that artifact collectors often generate homespun legal theories about the meanings of federal cultural resource management statutes and regulations―really bad theories that could result in a hefty fine and prison time if implemented. One of them goes something like this:

The Jimmy Carter Clause in ARPA says it is okay for us to collect arrowheads on federal lands. But we see a problem here. Fluted points were used on spears, and most other projectile points were either used as tips on atlatl darts or as knives. Therefore, using a strict constructionist approach (the kind my hero Justice Antonin Scalia uses with the U.S. Constitution) to ARPA, it only follows that we collectors cannot collect fluted points, atlatl dart points, spent knives, and certain other kinds of lithic artifacts on federal lands because they are not really arrowheads. What this does mean is that the Jimmy Carter Clause in ARPA makes it open season on collecting Hamilton points, Madison points, and other kinds of bird points on federal lands. So let’s go git’em!!!

Not true. As noted in Part I, collecting arrowheads (even narrowly defined) is illegal on federal lands under ARPA. The Jimmy Carter Clause in ARPA only exempts arrowhead collectors from the severe prosecution penalties under ARPA alone. For those artifact collectors seeking overall exemption from arrest and prosecution, the main thing they need to understand is that the Jimmy Carter Clause is as worthless to them as a $3.00 bill because it contains no exemption language that turns off the applicability of other federal statutes, regulations, and penalties outside of ARPA that apply to artifact collecting on federal lands and in federal waters. A fine, strict constructionist parsing of the Jimmy Carter Clause yields nothing useful for the artifact collector.

Bird points lying around on the surface of the ground on federal lands (and in federal waters) are still official federal property. This means federal authorities can use other federal laws besides ARPA to nail collector hides to the wall for trespassing, vandalism, theft of federal property, etc. Functionally and for all practical purposes, the utility of the Jimmy Carter Clause for totally protecting collectors on federal lands is a myth. From an overall perspective, it might as well be a piece of soiled toilet paper for all the protection it provides to collectors. Just think of it as being worthless with regard to these other statutes and regulations. The only way to be safe from arrest, prosecution, fines, and prison time under these other laws is to completely avoid collecting artifacts on federal lands, in federal waters, and on Indian lands.

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