Taggers, looters, and the law: archaeological criminal provisions in focus.

“It belongs in a museum.”

“It belongs with the community.”

“It belongs in situ!”

These declarations, uttered from the archaeologist with the sable fedora, reflect an evolving yet troubled discourse over the rightful ownership of heritage pieces. While debates on international heritage theft dominate, the greatest threat may lie closer to home, as the black market for cultural artifacts thrives not only on infamous museum heists and daring art thefts, but also on the looting of heritage on domestic soil. National parks, tribal lands, and federally managed lands contain a wealth of historical and sacred sites, yet they remain vulnerable to those who see heritage as a commodity rather than a legacy. Indeed, the spoilage from these sites has been enduring problems, as with the residents of Blanding, Utah, who were once paid as little as $2 per pot by institutions like the University of Utah. While laws exist to protect these artifacts, weak enforcement and lenient penalties have emboldened looters, allowing them to operate with little consequence—especially as demand for Native American remains and artifacts and for battlefield relics continues to grow. The black market for antiquities is not a distant problem - it is an American one.

This growing awareness of domestic heritage threats spurred early legislative action aimed at protecting America’s cultural resources. In 1900, Congressman John F. Lacey introduced H.R. 11021, seeking to grant the President authority to designate tracts of land with scenic or historic significance as national parks. Representative Lacey’s bill stalled until 1906 when the Senate and House introduced revised versions of the bill “for the preservation of American antiquities,” which President Roosevelt subsequently signed into law as the Antiquities Act of 1906. The Act created three main provisions: (1) authorized national monuments of minimal necessary size, (2) established a permit system for archaeological excavations, and (3) criminalized the destruction of objects of antiquity. Since then, eighteen presidents have established 167 national monuments, whilst one has sought to reduce the borders of monuments.

While the Antiquities Act was rooted in the promotion of scientific study and protection of archaeological sites, its enforcement mechanisms have proved inadequate from the start. Its criminal provisions were weak;  violations carried a maximum fine of $500 and up to 90 days in prison, which was later increased in 1987 to $5,000, up to six months imprisonment, or both. Despite these penalties, enforcement was rare, with only 18 convictions to date. In addition, the Act’s criminal provisions were rendered unconstitutional by the Ninth Circuit under the void-for-vagueness doctrine. In the 1974 case of United States v. Diaz, the Ninth Circuit held the term “object of antiquity” was vague in the context of removing 22 face masks, headdresses, and other items from the San Carlos Apache Indian Reservation in Arizona, as the Act failed to clarify the age of items to be protected. While other Circuits upheld the Act, the Ninth Circuit’s ruling complicated enforcement efforts, given its jurisdiction over a substantial portion of federal lands.

In response, Congress enacted the Archaeological Resources Protection Act (ARPA) in 1979 to reapply the criminal sanctions of the Antiquities Act while simultaneously curing other deficiencies. Under Section 6, it is a federal crime to knowingly excavate, remove, damage, alter, deface, sell, purchase, exchange, transport, or receive archaeological resources without proper authorization. Unlike its predecessor, ARPA’s criminal provisions impose significantly harsher penalties. A first-time offender can face fines up to $10,000 and imprisonment for up to one year, or both. If the commercial or archaeological value of the resources involved, combined with the cost of restoration and repair, exceeds $500, then the penalties increase to fines of up to $20,000 and imprisonment for up to two years. For repeat offenders, ARPA authorizes penalties of up to $100,000 in fines and imprisonment for up to five years. ARPA also addresses the trafficking of illegally obtained artifacts, making it a federal offense to sell, purchase, or transport archaeological resources acquired in violation of federal, state, or local laws. This provision seeks to curb looting and the illicit market that sustains it.

While ARPA represented a significant step forward in protecting archaeological resources, its criminal enforcement remains far from perfect. An ARPA violation is a general intent crime, requiring proving only that a person knowingly excavated, removed, or sold artifacts without authorization, not that they knew it was illegal. Conviction also requires showing the removal was tied to an illegal act, excluding legally sold trade goods, regardless of age. Moreover, ARPA does not operate in a vacuum. Looting and vandalism can also be prosecuted under other federal statutes, such as 18 U.S.C. § 641 (Theft of Government Property) and 18 U.S.C. § 1361 (Destruction of Government Property). Prosecution for the destruction of cultural heritage on Indian lands can proceed under 18 U.S.C. § 1363 and 18 U.S.C. § 1152, with courts applying U.S.S.G. § 2B1.5  to impose enhanced penalties—ensuring that the value of cultural loss, not just repair costs, defines the punishment, as seen in Fifth Circuit case of United States v. Haggerty. Although ARPA criminal convictions are relatively infrequent, and civil cases even more so, enforcement efforts persist through a patchwork of overlapping legal frameworks aimed at safeguarding America’s cultural heritage. While states can enact their own cultural preservation laws, securing convictions for offenses on private land remains challenging due to jurisdictional limitations and the difficulty of proving unauthorized excavation or trafficking without clear federal oversight.

Understanding statutes like the Antiquities Act and ARPA is crucial for criminal law practitioners because they highlight how cultural heritage crimes are prosecuted. As the black market for cultural artifacts grows, practitioners must be prepared to navigate these statutes strategically, whether building cases for prosecution or challenging the sufficiency of the government’s evidence in defense. Ultimately, these laws are more than just tools for prosecution—they are a reflection of our collective values, defining how seriously we treat the theft of not just objects, but the stories, identities, and histories that shape who we are as a society.