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Wednesday, February 29, 2012

Archaeological Protection Gone Wild: The Lynch Case

     In 1979, Congress passed the Archaeological Resource Protection Act (ARPA) which makes it a federal crime to excavate, remove, damage, alter, and/or deface (without a government permit) archaeological resources from federal and Indian lands. Under ARPA, an "archaeological resource" is an item of past human existence, or archaeological interest, more than a hundred years old. First time ARPA offenders, in cases where the value of the artifacts and the cost of restoration and repair of the damaged archaeological site is less than $500, can be fined no more than $10,000 or imprisoned for more than one year. However, if the value or restoration costs exceed $500, the offender can be fined up to $20,000 and imprisoned for two years on each count. Under ARPA, federal authorities can pursue violators civilly or in criminal court, imposing fines and confiscating vehicles and equipment used in the commission of the prohibited activity.

The Ian Martin Lynch Case

     Although he didn't know it at the time, 23-year-old Ian Martin Lynch made the mistake of his life when he picked up a human skull lying among hillside rocks on an uninhabited island off the shores of southeastern Alaska. In July 1997, Lynch and two of his friends were deer hunting on public land in an area called the Warm Chuck Village and Burial Site. They had no knowledge of this place, were unaware it had once been the home of Native Americans, and were not looking for prehistoric artifacts. There were no indications, other than the skull, that the men had stumbled upon an ancient grave site.

      While exploring the area as his friends were breaking camp, Lynch scraped the dirt away from the back of the skull then picked it up for a closer look. He guessed the skull, and the bones scattered around it, had been there for some time because of the absence of clothing. He had no way, however, of knowing that the remains he had stumbled upon were archaeological resources.

     Shortly after taking the skull home, Lynch decided to turn it over to the U.S. Department of Agriculture's Forest Service Office in Anchorage. He described how he had come in possession of the skull to a government employee and revealed the circumstances surrounding its discovery. A short time later, an agent with the Forest Service asked him to come to the federal building for an interview.

     When the Forest Service agent asked Lynch if he knew the skull was old, the interviewee said, "So, I mean, it's definitely been there for awhile. Oh, man, it's definitely old. There's not a stitch of clothing or nothing with it." (To make a federal case against Mr. Lynch the Forest Service agents would have to establish that he knew, or should have known, that he was taking away a skull more than a hundred years old.)

     The Forest Service archaeologist for the region examined the evidence but was unable to  determine the age of the skull. This prompted the Assistant United States Attorney (AUSA) to call in a physical anthropologist to determine, through visual analysis, the age of the head. This expert also declined to scientifically declare the skull an archaeological resource. The AUSA, determined to establish a crime under ARPA, sent the skull out for carbon dating. This analysis revealed that it was at least 1,400 years old. This opened the door for a federal prosecution.

     In 1998, a federal grand jury sitting in Anchorage returned an indictment charging Ian Martin Lynch with one felony ARPA offense. If convicted, he would face up to a year in prison and a $10,000 fine. Lynch's attorney filed a motion to dismiss the indictment on the ground the government had not met its burden of proving that Lynch, in taking the skull, had sufficient knowledge to establish the requisite criminal intent to violate this law. Specifically, the prosecution had not proven that Lynch knew the skull was an archaeological resource.

     The U.S. District Judge, reasoning that Lynch's picking up the skull was "a wrong in itself," ruled that the prosecution did not have to prove that Lynch had specifically intended to commit the crime. Based on this legal rationale, the judge denied the defense's motion to dismiss the indictment. In response to this ruling, Lynch pleaded guilty to the single ARPA count while retaining his right to appeal the judge's decision. In 1999, the judge sentenced Lynch to six months in prison and fined him $7,000 to cover the costs of the burial site restoration. (Lynch had picked up one bone, what restoration?) At his sentencing, Lynch told the judge he had not intended to offend Native Americans. He remained free on bail pending the results of his appeal to the Ninth Circuit Court of Appeals.

     In 2000, the federal court of appeals overturned the ARPA conviction. Judge Alfred T. Goodwin, one of the three jurists on the panel, wrote: "The Government must prove that a defendant knows or had reason to know he was removing an 'archaeological resource' before that defendant can be found guilty of an ARPA offense."

     The reversal of Lynch's conviction makes sense, but what doesn't make sense is why the U.S. Forest Service, and the federal prosecutor in Alaska, went after Mr. Lynch in the first place. Congress, in passing ARPA, intended to punish and deter the for-profit looting of archaeological sites. Mr. Lynch was not even an artifact collector. It's hard to believe that federal law enforcement officers would waste taxpayers' money by pursing such a questionable case. And finally, what kind of judge would sentence a harmless defendant like Mr. Lynch to six months in prison?


   

      

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