Questions Artifact Collectors Pose to Professional Archaeologists: Question No. 13

Question No. 13:

You professional archaeologists jaw bone a lot about federal statues and regulations that are designed to adversely impact us artifact collectors and our collecting. In easy language I can understand, can you define what you archaeologists mean when you use the words “statue” and “regulation”?  I always thought the federal government had one centralized place where all federal law is made. Then once a law is made, it automatically applies to all men, women, children, and organizations across the entire United States. Is that right?

Answer:

No. Federal law is highly complex, multi-layered, sometimes applicable to persons in one place but not in another place, and hard for a lot of people to understand. Off the top of my head, I am going to offer you some basic information about the federal legal system, mention a little bit about related state law, and throw in some archaeological information along the way. I will do that in easy language (best I can), but you will have to learn some new words along the way. My presentation is in a listing format. Here goes:

(1) First things first—the word statue. Among artifact collectors and everyday citizens, I see this word quite often in written or oral discussions about federal law and artifact collecting. The on-line Merriam-Webster Dictionary defines the word “statue” as follows:

…a three-dimensional representation usually of a person, animal, or mythical being that is produced by sculpturing, modeling, or casting.

The Statue of Liberty is just what the name says—a statue. The official Tennessee State Artifact named The Ancestor is also a statue. The word statue has nothing to do with the law. The legal word you need to use instead is statute, which is something quite different entirely from a statue. Look closely and notice that third letter “t” in the word. In the American legal system, the word statute refers to a law created by a legislative body. Statute is just a fancy word that is synonymous with the simple word law. Got it?

(2) At the federal level of government, a final statute is a law passed by vote in both the U.S. House of Representatives and the U.S. Senate (U.S. Congress) and then signed into law by the President of the United States. The written text of a statute refers to itself as “the Act.” The overall process of voting on a proposed statute in the U.S. Congress and having the president sign it into law is called “enactment.”  Statutes are enacted.

A whole bunch of people on the street think federal statutes are short little statements of law like this ancient Jewish law from the 10 commandments in the Holy Bible. You know:

Thou shalt not kill.

Then—all done. Right?  Wrong!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Do you seriously think the federal government does anything that simple, short, and inexpensive?

In truth, the official text of most federal statutes is long, complex, and broken down into assorted sections and subsections identified by unique numbers and letters that constitute an outline of the statute. The text of each statute is written in that famous attorney language called legalese, which is often hard to understand if you do not know certain Latin terminology and are not accustomed to reading it. Because these statutes tend to be so long, they usually begin with a formal table of contents to ease reader navigation through the text. The Archaeological Resources Protection Act of 1979 is a perfect example of a typical federal statute.

(3) What is a federal regulation? Federal regulations are different from statutes. Basically, a federal regulation is an administrative rule that is made by a specific federal agency to officially implement the requirements of a statute and ease management of the implementation process by employees of the federal government. The enactment of a statute is one thing, but implementing the terms of a statute within the federal government is quite another matter.

You might think of it like an exercise bicycle that comes to your house in a box—but you have to assemble all the parts yourself. The original engineering specifications for the bicycle are the statute. The makers of the bicycle parts have to meet those specifications according to a set and sequence of manufacturing rules inside a factory. The rules the factory workers must follow and the assembly instructions you must follow on that piece of paper in the bicycle box are the regulations.

The text of each statute contains within it a formal statement that legally delegates to a specific federal agency (e.g., U.S. Department of the Interior) the authority to implement the statute and create the new regulations necessary to implement, administer, and enforce the requirements of the statute. The formal word the federal government uses for the process of making new regulations, reviewing them, revising them, and issuing them in their final form is—get ready for a big new word—promulgation. Here is the proper language to use when  working with new statutes and regulations:

New federal statutes are enacted, but new federal regulations are promulgated.

Now, here is the most important thing to remember about all federal regulations. Because a statute (passed by the U.S. Congress and signed by the President of the United States) gives a federal agency the formal authority to create new regulations, these new regulations carry the full weight and authority of law—and they are legally enforcible by law enforcement officers and the federal courts—just like statutes. Using an automobile analogy, federal regulations are not the weak Cooper Mini of the legal world. They are just as important in the federal legal realm as the Rolls Royce statute. Federal regulations are also the law. The federal regulations promulgated by all federal agencies are available online in the Code of Federal Regulations, which you can easily Google. A particular set of federal regulations is cited according to the following alphanumeric format: 36 CFR 800. In this set, 36 is the number of the “momma” federal agency responsible for this set of federal regulations—the U.S. National Park Service. The CFR is a simple abbreviation for the Code of Federal Regulations. Number 800 is the part number that begins this set of regulations. This part has the title Protection of Historic Properties.

In summary, federal regulations usually have a “momma” statute that authorized their creation. A “momma” statute authorizes a specific federal agency to promulgate and administer a set of federal regulations. These regulations are the law too—just like statutes. Many different federal agencies promulgate their own very different sets of regulations.  Got it?  This where you say:

Wow!!! That must be a whole lot of different regulations covering all sorts of different stuff!!!

You are quite correct. If federal regulations were large steel bolts, there would probably be enough of them to sink a huge freight ship.

(4) All federal statutes and regulations are not created in one centralized place—and then they automatically apply to every man, woman, child, and organization in the United States. It is not that simple. Federal statutes are created on Capitol Hill in Washington, D.C., but the President of the United States usually signs off on them at the White House.

Federal regulations are written by federal employees with subject matter expertise and federal agency attorneys at widely distributed federal agency offices in Washington, D.C. and sometimes in other parts of the nation. It all depends on where the federal expertise is located for a certain type of regulation. Federal employees in different federal agency offices around the nation may help with drafting, reviewing, and revising regulations to be administered by their particular federal agency.

The applicability of a statute or regulation to a man, woman, child, or organization often depends on the specific subject matter and content of a statute or regulation. Some criminal statutes—like those covering theft of federal property—apply to everyone (with “sticky fingers”). No person or organization, anywhere in the nation, is authorized to steal federal property.

Other federal statutes and regulations are more specific. For example, the Resource Conservation and Recovery Act of 1984 (RCRA) and the regulations promulgated under it apply to persons and organizations who generate, store, treat, and dispose of certain quantities of solid waste. The formal regulatory definition of solid waste includes everyday garbage and solid and liquid hazardous waste and mixed waste. Mixed waste is solid or liquid hazardous waste mixed in with low-level radioactive waste. As long as artifact collectors are not doing something incredibly weird with their artifacts and artifact collecting, the RCRA statute and the regulations promulgated under it would not apply to them. Just in case you wanted to know, the U.S. Environmental Protection Agency (EPA) is the primary “momma” agency for the RCRA regulations. A federal agency that regulates radioactive materials may serve as a second “momma” for the mixed waste regulations. Sometimes two or more federal agency mommas are better than just one.

Therefore, some federal statutes and regulations may apply to everyone. These are often referred to as overarching statutes and regulations. Others may apply only to certain persons and/or organizations, depending on the specific contents of certain statues and regulations—and what some limited number of people or organizations are doing.

(5) Why did I write Items No. 1 through No. 4 (above)? Well, it has been my experience that both artifact collectors and archaeology students (graduate and undergraduate) have a really hard time learning about the federal legal system, how it is structured, and the nuts and bolts of how it works. Worst of all, I have had some really Close Encounters of the Truly Weird Kind (CETWK) with artifact collectors. 

One night a few years ago, I had a really tense encounter with an angry and highly agitated artifact collector who did not (and apparently could not) understand how federal statutes and regulations work and to whom they apply. He seemed to think that a big central law building exists in Washington, D.C. All federal statutes and regulations are created in that one building. They apply equally to every federal agency in the nation, every organization, and every person—no matter what their specific circumstances might be and no matter what the specific contents of the statutes and regulations say.

For example, let us say that the U.S. Congress and the President of the United States enact a federal statute pertinent to some important issue with cattle grazing that involves only the U.S. Bureau of Land Management (BLM) on five large tracts of BLM land out West. The BLM then promulgates a set of regulations to implement the new statute. Of course, BLM is the “momma” federal agency for these new regulations. This highly agitated artifact collector was insisting that every other federal agency, organization, and person across the entire United States was equally affected by that BLM-specific statute and the regulations promulgated under it—and every American individual and organization had to get busy and obey them.

Even if a nice, retired African-American man named Zach, who was allergic to beef and had nothing to do with cattle, was sitting quietly on his front porch in Dothan, Alabama, he had to get busy and comply with that BLM statute and the regulations under it. Why? Just like I said, this angry, highly agitated artifact collector apparently thought all federal statutes and regulations emerge from one building in Washington, D.C., and they all apply equally to everyone in the nation. No matter what the circumstances, Zach has to get busy and obey them. TVA has to obey them. Artifact collectors in Georgia have to obey them. Your teenage daughter in Massachusetts has to obey them—even though none of these agencies or persons ever has anything to do with those five large tracts of BLM land out West.

Bullshit!!!!! If you are not in any way grazing or supporting the grazing of cattle on those five tracts of BLM land out West, then that statute and the BLM regulations promulgated under it do not apply to you. If the BLM promulgates its own cultural resource management regulations for those five huge tracts of BLM land out West, that does not mean that those same BLM regulations apply to cultural resources on TVA lands here in the East. BLM is a separate federal agency from TVA, and it has no statutory or regulatory authority over cultural resources on TVA lands. TVA manages its own cultural resources.

I think American artifact collectors—such as this agitated guy—would like to convince themselves that the federal legal system is very simple, easy to understand, and all encompassing. They want to believe that all federal statutes and regulations come from one central place. They apply equally to everyone—in the same way as a simple Biblical law such as: “Thou shalt not kill.” Thataway (as my dad used to say), artifact collectors at least have some hope of quickly and easily determining whether they are violating some federal statute or regulation pertinent to their artifact collecting. Unfortunately, for most artifact collectors, that is just plain not true. The federal legal system is highly complicated and difficult to navigate for the average man or woman on the street—including any artifact collector who is not an attorney.

(6) Let us cover one last but very important thing. This is the interface of federal laws with state laws. How many of you have ever heard of the Supremacy Clause in the U.S. Constitution?  It reads as follows:

Article 4, Clause 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.    

Lovely that. Can you say “crash and burn”?  When the U.S. Supreme Court ruled that gay marriage is legal, numerous states rushed to enact state-level anti-gay marriage laws to nullify the high court ruling. These efforts were sponsored by Republican state legislators who knew most of their constituents were dumber than potato peels in a trash can. These legislators full-well knew that the Supremacy Clause makes it illegal to countermand or nullify a federal law, treaty, regulation, or court ruling with a state law, state regulation, or state court ruling. They went ahead and did it anyway to fool their ignorant constituents and make it look like they were doing something important, effective, and wonderful. You know:

Ah!!!!! Honey child. I tried so very hard to protect you from those gay blades with that new state law, but somehow it just wasn’t in the cards. Knowin’ how hard I worked for you, you’ll be sure to support me come election time. Now won’t you honey child?

With regard to the federal statutes and regulations that apply to artifact collecting, the Supremacy Clause in the U.S. Constitution makes it illegal to enact a state law, promulgate a state regulation, or issue a state court ruling to nullify one of these federal laws or regulations. A state entity may go ahead and do so without any state official getting arrested. However, any such state action is doomed to crash and burn in the federal court system.

However, it is legal for a state legislature to do one really interesting thing with a requirement in federal law. For example, with regard to ARPA, no state can nullify or overturn the ARPA statute and its regulations, in whole or in part, because of the Supremacy Clause in the U.S. Constitution. However, it is legal for a state legislature to enact a state law and for a state agency to promulgate state regulations under it that make assorted aspects of ARPA apply more stringently at the state-level of law. In other words, if a particular clause in ARPA calls for an artifact collector to be kicked hard in the butt one time for some offense, the State of Tennessee can enact a more stringent state law and promulgate state regulations under it that require five kicks in the butt for the same offense. Ouch!!! To the best of my knowledge that has not occurred so far here in Tennessee, but it can happen if a state legislature, a governor, and a state agency responsible for cultural resources want it to happen.

Another thing to remember is the double jeopardy clause in the U.S. Constitution. This is the famous clause that says a person, once acquitted of a federal crime, cannot be tried again for the exact same offense by a federal court. That is true at the federal level. However, the American legal system has multiple, vertically tiered judicial jurisdictions. This means a person who kills someone in a federal building in Tennessee can be acquitted of that murder in a federal court, but that same person can be tried again at the state level of jurisdiction for the exact same crime in a state court of law because murder is illegal at the state level of jurisdiction in Tennessee. The American legal system calls this dual sovereignty. The same principle applies to any federal cultural resource protection statutes or regulations that exist at the federal level—but also exist in state statutes and regulations. You might be acquitted of an offense in a federal court room, but if the State of Tennessee has statutes or regulations that forbid that exact same crime, you could technically be nailed good for the exact same offense in a state court. Ouch again!!!  To the best of my knowledge, that rarely ever happens—but it could happen.

Finally, if you take out your digger shovel and dig deeply into the bowels of the ARPA statute, you will see some very interesting clauses stating that a person can be prosecuted under ARPA for violating a state cultural resources protection statute or regulation. For example, if you are caught removing artifacts illegally from state-owned land in your state, you can technically be prosecuted for that offense under the federal ARPA statute. The potential legal mechanics of that are unclear to me—meaning I have not looked deeply into the subject. Furthermore, based on something I read recently (cannot recall where), there appears to be some legal concern that these particular aspects of ARPA might not hold up well in a federal courtroom. In other words, these unusual aspects of ARPA have not been fully tested in the federal courts. Not being an attorney, I must confess that I know little to nothing about this particular subject.

I hope this clears up some of the confusion American artifact collectors have about the American legal system and how it works. As always, if you insist on collecting artifacts, please be sure that you do so in total compliance with all of the federal, state, and local statutes, regulations, and ordinances that are applicable to your collecting activities. These statutes, regulations, and ordinances are not designed to make artifact collectors angry.  They are designed to protect nonrenewable cultural resources from destruction and to conserve them for future generations of Americans. I know many of you artifact collectors out there are also game hunters. You know what the word conservation means and how important it is to your game hunting activities. You would never kill off the last male and female elk in Tennessee. So, why would you kill off our last remaining archaeological sites?  Yes, I know:

‘Cause I wants me a really great artifact!!! Besides, if I killed off them last two Tennessee elks, I’d jist go a Elk huntin’ in West Virginia. Bwa-a-a-a-a-a-a-a-a!!!!!!!

Responsible artifact collectors.  All of you know a few artifact collectors who are just like that guy. Why do you tolerate them?  Why do you keep them as your friends? Inquiring professional archaeologists would really like to know. Comments are open.

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