"Carter clause"

[wiseshanks]

Archaeological Resources Protection Act of 1979
Section 6 subsection (g) is why I'm not as worried about our hobby.

[Mojave]

Here we go again,....
While generally I agree there is little to worry about if you are not being blatantly disrespectful, this is a very misinterpreted piece of legislation. We've discussed this ad nauseam. The point is don't pi$$ off the wrong person and then expect ARPA to protect you. While it is difficult to fathom why any gov't agency would spend tax dollars to prosecute someone for a crime that "potentially" has no penalty, political winds occasionally shift in unexpected directions.
ARPA was to enable stronger penalties for serious crimes, not for the hiker/occasional collector. This law contradicts other laws. So far as I am aware, no court has ruled directly on it yet.
I'd suggest reading this at FindLaw | Cases and Codes

UNITED STATES OF AMERICA
Defendant-Appellee, versus BILLY RAY SHIVERS Plaintiff-Appellant.

Finally, the "arrowhead exception" to the ARPA discussed

by Shivers is inapposite and irrelevant. This exception is not

intended to encourage removal of arrowheads from public lands, but

rather to exempt such removal from the civil and criminal penalty

provisions of the ARPA. See 16 U.S.C. 470ff(a)(3); 36 C.F.R.

296.3(a)(3)(iii). Unlike the tokens excavated by Shivers, the

arrowhead exception is limited to those found on the surface of

public lands. See 16 U.S.C. 470ff(a)(3) ("[n]o penalty shall be

assessed . . . for the removal of arrowheads located on the surface

of the ground."). Also, the ARPA expressly provides that the

removal of arrowheads can be penalized under other regulations or

statutes. See, e.g., 49 Fed. Reg. 1016, 1018 ("regulations under

other authority which penalize [the removal of surface arrowheads]

remain effective.") No inferences or implications helpful to

Shivers are found in these provisions.

[JimFogleman]

Dog gone it, Mohave. You burst my bubble. I thought that Jimuh Carter had actually done something that wasn't terrible.

[highsierra]

How did the USFC determine that Shivers collected the tokens on "their" property? Was he caught in the act by "Circus" personnel? Their response to his removal of trash from the NF was exactly why we do the same, but exercise all precautions when doing so. To attempt to use ARPA parameters in reference to the removal of old metal was a big mistake on his part. Had he not found those pieces of old discarded brass, the people who removed them from his person would never have known they were their. The same goes for the bottles that we so diligently excavate. Like Shivers, we are only cleaning up the environment by removing these unsafe objects. Unlike him, we wouldn't think of using the "Carter Clause" to guarantee the right to do so.

[wiseshanks]

I am sorry to beat the dead horse Mohave. I probably should have worded that a little differently. I am Well aware that local laws and state laws still apply in the situation that one is hunting where they shouldn't be. I was just trying to state the fact that people like us will hopefully not be subject to a law meant for grave robbers and looters. I have all the respect in the world for archaeologists and their struggle to protect artifacts and the sites on which they are found on for posterity to uncover. It is just very frustrating to me that I know where an old camp site is located but can't hunt on it just in case someone might excavate it in the future(highly unlikely). It is very remote and few know about it but that's besides the point. I'm sorry if I ruffled any feathers here just trying to express my opinion while we still have the right to do that.

[Mojave]

Originally Posted by highsierra

How did the USFC determine that Shivers collected the tokens on "their" property? Was he caught in the act by "Circus" personnel?

Yes, pretty much. There was never a question of that. The case was by him against the US after they confiscated the finds. He wanted them back. He never denied taking them. Interestingly he DUG UP a bunch of arrowheads ON GOVERNMENT LAND. Apparently he was allowed to keep all that.

[Mojave]

Originally Posted by wiseshanks

I am sorry to beat the dead horse Mohave. I probably should have worded that a little differently. I am Well aware that local laws and state laws still apply in the situation that one is hunting where they shouldn't be. I was just trying to state the fact that people like us will hopefully not be subject to a law meant for grave robbers and looters. I have all the respect in the world for archaeologists and their struggle to protect artifacts and the sites on which they are found on for posterity to uncover. It is just very frustrating to me that I know where an old camp site is located but can't hunt on it just in case someone might excavate it in the future(highly unlikely). It is very remote and few know about it but that's besides the point. I'm sorry if I ruffled any feathers here just trying to express my opinion while we still have the right to do that.

Seriously, no ruffled feathers here. I have had this exact conversation with a couple well known archaeologists very recently that I am working with on some research. As far as burials, that is covered by NAGPRA. ARPA was intended to stiffen the fines against looters and vandalizers of known (and unknown) historic sites such as cliff dwellings, petroglyphs, and the like. Artifacts on federal land are governed by federal laws. State and local issues are a different story. You might be surprised at the sympathy some archaeologists have for casual collectors of surface artifacts. I guarantee a VAST majority of archaeologists were at one time arrowhead collectors. The small percentage who weren't (or claim they weren't) are hypocrites. The whole point is that surface collecting is illegal but according to ARPA, there is no penalty. Other laws say there are. Until a court rules on it, it is a matter of conjecture. In my opinion, anybody who occasionally picks up a surface arrowhead isn't going to be arrested or incarcerated. That would be stupid. Now if you are excavating, defacing, looting, TRAFFICKING, or doing anything that would blatantly offend most people, that is another story. Don't cross the line.
The thing that surprised me about the Shiver's case was the fact that he went so far and wasn't really harassed nearly as much as most people would think. He was digging and removing artifacts (both historic and prehistoric) from federal land. He was allowed to keep everything but the tokens. He had the cojones to sue the US Government to get the confiscated finds back. I wouldn't want to press an issue like he did but it really is amazing.
JMHO....

[wiseshanks]

I get you 100%. I'm really new to the laws regaurding arrowhead hunting. It was ignorance on my part for making such a post. I really need to read up on it more. I just get kind of defensive on the issue because my family has collected for many years and have never faced a problem. I've heard some great stories from my father and grandfather about some of the stuff found on the land where my family has lived. Thank you very much Mohave for clearing everything up. I'm going to focus on doing more research on the matter. So to clear one thing up for me; when you say that it is illegal to traffic artifacts does that mean it is unlawful to sell artifacts out of ones personal collection? I know that there are a lot of points sold on eBay so I hope that's not the case.

[Mojave]

This is a very sensitive subject because arrowhead collecting is a part of our collective heritage and Americana. That is why Carter insisted on the clause that he did. He grew up collecting arrowheads in Georgia.
I am no lawyer; I’m just another guy with an opinion. IMO picking up an arrowhead on federal land is not illegal. The moment you put it in your pocket and walk off with it, it is. Analogously, if you drove your car 66 mph in a 65 mph zone, have you broken the law? Yes. Do you know it? Yes. Are you going to be pulled over and ticketed? Probably not. And if you were, the judge would probably dismiss it. But if a cop with a bad attitude in a foul mood sees you and wants to give you a ticket, I wouldn’t argue with him. You don’t have a leg to stand on. Lots of people carry copies of the ARPA legislation in their pocket thinking if anyone questions them they can pull that out in defense. If you tick off the wrong person, they will laugh at your paper while they are cuffing you. As far as I know that has not happened yet….
The bottom line is if you are afraid of getting into trouble, don’t do it. If you do, behave respectfully and don’t do anything that most reasonable people would consider a crime.
On the other question, again in my opinion, it is not illegal to possess, own, buy, sell, or trade Indian artifacts,….unless they were knowingly and illegally obtained. There are lots of ways that artifacts were legally obtained. Lots of stuff found prior to the 1979 law is legal. Stuff found on private land, in places where that is allowed – like Texas, is legal. Buying something at a flea market and reselling it on e-bay for a profit, is legal. That is not trafficking. What happened in the 4-corners area earlier this year was a case of lots of folks digging up sites of obvious historical significance, on gov’t/Indian land, for the sole purpose of making money by selling on the black market. These places included burials and cliff dwellings. That is wrong and illegal. It encourages further vandalism.
If you want to sell something from your collection, I’d refer back to Manoman’s situation that we discussed recently. In our free society, the burden of proof is on the accuser. You do not have to prove it was obtained legally. The other guy has to prove it wasn’t. Unless that person has witnesses or video or some other proof that you obtained it illegally, any accusations by that person is nothing less than harassment which is illegal by itself.
At the same time you have to realize our society (and its popular views) is changing. Back in the 60s and early 70s in my old home town there were actually local government sponsored contests as part of the annual county fair that awarded prizes (ribbons and trophies) for the best arrowhead finds of the year. By the late 70s that wasn’t done. Through the 80s it became taboo. In the 90s folks became more vocal against it. Now people are harassed and paranoid. Perhaps our collective social conscience is slowly recognizing the situation differently.
As far as blaming this on someone, I don’t. In general, IMO, archaeologists are sympathetic. They are after all in a profession that has as its charter, the dissemination of knowledge and public education. Many archaeologists start on projects because someone in the public found something interesting.
I have more problems with the tree-hugging liberal left-wing environmentalists who get militant because they equate touching an arrowhead with some heinous crime against humanity. But that is still no worse than the folks who think they can go anywhere, anytime, and take anything they want just because their grandparents did.
Sorry for the rant…

[Indianasmith]

The thing about ARPA is that, according to its language, I believe it was meant to apply to ALL public lands in the U.S. We have very little public land in Texas, but where collectors have hit the most friction is on reservoirs controlled by the U.S. Army Corps of Engineers. When water levels get low, lots of artifacts are exposed from washed-out sites. For decades - up through the 90'2, in fact - collectors would pick up and even screen for relics in the shallow waters and shorelines of these reservoirs with no harassment and no penalty. Everyone understood that these artifacts were out of context and archeologically useless. But, since the mid-90's, the Corps of Engineers has vigorously prosecuted anyone they catch picking up any artifact - even a flint chip - on their lakes. If ARPA cannot be made to apply, they simply accuse the person of stealing government property. And so the arrowheads just wash away . . . .