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 public education service of the Oak Ridge Archaeological Research Institute.
The highest aspiration of most artifact collectors is to find what one might describe as museum-grade artifacts, and they firmly believe the best places to find such artifacts are archaeological sites within major river valleys. Unfortunately, for the collector, those sites tend to be on land and under waters owned by federal agencies such as the Tennessee Valley Authority and U.S. Army Corps of Engineers. The magnetic draw of such sites and the overwhelming desire to find a really great artifact creates a high level of desperation within many collectors. Consequently, they will grasp at any anecdotal hope or item of folklore that might allow one to surface hunt or dig for artifacts on these lands without fear of arrest, prosecution, fines, and imprisonment. The old colloquial expression for this kind of thing is “grasping for straws.”
One such anecdotal straw we have seen in several places on-line over the years is the notion that an artifact hunter should carry a paper copy of the Jimmy Carter Clause in the Archaeological Resources Protection Act of 1979 (ARPA) into the field with him. Supposedly, this should be done while surface hunting for arrowheads on federal lands or in federal waters. There is also the odd notion that an artifact collector can take a copy of the Jimmy Carter Clause to court—where it can serve as a Get-Out-of-Trouble Free Card or Get-Out-of-Jail-Free Card for the collector. How does this scheme supposedly work in the field?
Well, if you are surface hunting for arrowheads on federal lands or in federal waters and an agency ranger or other agency law enforcement officer catches you red handed, all you have to do is reach into your pocket and whip out your copy of the Jimmy Carter Clause (and one other page in ARPA) and show them to the officer. Those papers would have the following highlighted in yellow:
(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
(3) No penalty shall be assessed under this section for the removal of arrowheads located on the surface of the ground. [Section 7 (a) (3)]
The agency law enforcement officer then takes a close look at your two pieces of paper, realizes that they look official, and reads the yellow highlighted areas. She then says:
Well, I never knew that, but it sure says it right here in black and white. Sorry to have bothered you sir. Go ahead with your collecting and have a nice day.
On the Arrowheadology web forum titled Arrowhead Hunting & Collecting, a commenter with the handle name Wichita (April 2010) offered an anecdotal example of an artifact collector who had tried this “I Got a Copy” argument when he went to court. You may read this brief story by clicking on the following safe hyperlink:
(Scroll down when you get to that web page)
[Note on 1/5/2019: It is my understanding that the entire Arrowheadology.com website has been taken down for about two months pending a new format. Therefore, the link above is no longer accessible. It might still be when they finally get the forum pages back up and going again.]
The Archaeology in Tennessee blog has little doubt that the “I Got a Copy” argument has been tried by a few isolated artifact collectors in some places and at some times in the long ago past—and we do mean very long ago past. We further have no doubt that there was some agency law enforcement officer or federal judge who either never got or never read the memorandum about ARPA and new agency strategies for cultural resources law enforcement. Perhaps the officer was out sick on training day. Perhaps the officer was a new employee who still had a lot to learn. Perhaps the anecdotal event happened soon after ARPA was signed into law, and the local agency office did not have enough time to immediately develop and implement an enforcement strategy for cultural resources protection. Be it anecdotal evidence or folklore, the “I Got a Copy” argument may have even worked a few times with a federal judge like it did in the Arrowheadology example.
Now. Listen up!!! Listen up good!!! Here at the Archaeology in Tennessee blog, we seriously doubt that the “I Got a Copy” argument would work on any federal agency law enforcement officer or federal judge today. The ARPA statute and regulations are very old news today―about 38 years old. That is far more than enough time for everyone in the U.S. Government to have gotten their law enforcement act together on surface collecting of arrowheads on federal lands. The Archaeology in Tennessee blog believes firmly that the “I Got a Copy” argument is both foolish and dangerous. No artifact collector in his right mind should ever allow himself to be deceived into surface hunting on federal lands or hunting in federal waters under the assumption that a pocketed copy of certain key pages in ARPA (or the whole statute) will function as a Get-Out-of-Trouble Free Card or a Get-Out-of-Jail-Free Card.
In addition, always remember (completely apart from ARPA), federal law enforcement can still nail your hide to the wall with all of those other still-in-force federal laws and regulations (outside of ARPA) that apply to collecting artifacts on federal lands and in federal waters. For example, the law against theft of federal property applies to all artifacts on federal lands and in federal waters. Once again, the wisest thing to do is never, never, never, ever go surface hunting, digging, or swishing for artifacts on federal lands or in federal waters. Period.