by Tracy C. Brown
Question No. 12:
I have a good buddy who was recently collecting prehistoric artifacts in a creek bed on federal property. He was moving gradually along the creek bed, picking up artifacts from the bottom of the creek, and putting them into a Home Depot bucket he had sitting beside him in the creek. A federal law enforcement officer arrested my buddy right there near the creek. I do not see how it was legal for that officer to make an arrest like that because my buddy never took the artifacts out of his Home Depot bucket in the creek—and he never took the artifacts in that bucket outside of the federal property boundary line. If he never took the artifacts home with him, I do not understand how they could have arrested him. Are there any laws that allow an arrest like that?
I would have to know all the details of the case to fully answer this question for you. However, a couple of very obvious legal issues come to mind.
First of all, under the Archaeological Resources Protection Act of 1979 (ARPA), it is not just illegal for your buddy to collect artifacts on federal property and take them home with him. It is illegal for him to even “attempt” to collect artifacts on federal property. Section (6) (a) of the ARPA statute reads as follows:
(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.
The law enforcement officer who arrested your collector buddy probably saw the Home Depot bucket and the artifacts in it as evidence of a clear attempt to remove artifacts from federal property. What else would your buddy have been doing with the artifacts in that bucket? Surely he was not planning to sit on the bucket in the creek and wait for bluebirds to hatch from each artifact?
All prehistoric and historic artifacts on federal lands are considered to be official federal property—just like a federally owned lawn mower or pickup truck. It is illegal to steal items of federal property by taking them outside of the federal property boundary. Theft of federal property is a crime. Yes, as you said, your buddy did not remove the artifacts in the Home Depot bucket from the creek and take them outside of the federal property boundary on the way to his house.
Nonetheless, attempted theft on federal land is also a federal crime. There is that old bugaboo word again—–attempted. It works the same way in your home town. Two guys break into the back door of an electronics store at 3:00 a.m. When the police arrive, the two guys doing the breaking and entering (itself a crime) are moving their first item (a big screen TV) toward the back door. What are the policemen going to do? Are they going to yell out:
Hey you! If you freeze right there and do not pass GO with that T.V., we will give you $200 for not passing GO and avoid charging you with attempted theft—and you can both go home for a good night’s sleep.
Of course not!!! They are going to put the two guys in handcuffs, read them their Miranda rights, and charge them with breaking and entering and attempted theft. Your buddy’s Home Depot bucket with the artifacts in it was evidence of attempted theft of federal property from the creek—-the artifacts—-just like those two guys moving the big screen TV toward the back door of the electronics store.
Artifact collectors may get together and hatch all sorts of stupid, homemade legal theories about collecting artifacts on federal land. Some do it before committing a federal crime, and some do it after committing a federal crime in an attempt to figure out why they were arrested. I have said this before, and I will say it again. Listen up artifact collectors and listen up good:
There is no home-hatched legal theory that allows you to collect artifacts on federal property, state property, or Indian lands without risk of arrest and prosecution. There are no special outs or legal loopholes that allow you to collect artifacts on such properties—not even the famous Jimmy Carter Clause in ARPA. The next time you hatch one of your homemade legal theories about artifact collecting on federal or state property—and try it out in the field—-you will be hanging yourself with your own rope.