Trafficking in Human Remains—Native American Grave-Looting

Seven people have been indicted for the sale of a skeleton and other artifacts excavated from a Native American burial site.^[1] The skeleton was excavated in 1994 from a wilderness study area on federal lands, and Michael John Orf, Aaron Alan Devoe, and Theodore Paul Devoe attempted to sell it for $15,000; a government informant eventually negotiated the price down to $1,000.^[2] Four other people were accused of arranged with and participating in the meetings with the informant.^[3]

The charges against the seven are:

1. conspiracy to excavate, remove, and sell archaeological resources and human remains of a Native American illegally taken from federal lands;
2. sale of unlawfully removed archaeological resources;
3. sale of stolen government property;
4. excavation of an archaeological site;
5. damage to government property;
6. and illegal trafficking.

Count 1
The first count, the conspiracy charge, encompasses all the other charges. Under 18 U.S.C. § 371, if two or more persons conspire to commit any offense against the United States, or to defraud the United States, and then they commit an overt act toward the commission of the offense, they can be punished with a fine, imprisonment for up to 5 years or both.

Count 2
Selling unlawfully removed archaeological resources is covered by 16 U.S.C. §§470bb(1), 470ee(b), and 470ee(d).

Under 16 U.S.C. § 470bb(1) the term “archaeological resource” means any material remains of past human life or activities which are of archaeological interest. Items included in the definition include, but are not limited to, pottery, basketry, bottles, weapons, tools, graves, and human skeletal remains. No item which is less than 100 years old will be treated as an archaeological resource.

Under 16 U.S.C. § 470ee(b), no person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange any archaeological resource if that resource was excavated or removed from public lands or Indian lands in violation of either a prohibition contained in 16 U.S.C. § 470ee(a)—which is discussed below in count 4—or any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.

Under 16 U.S.C. § 470ee(d), the penalty for a violation of this section is a fine of up to $10,000, imprisonment for not more than 1 year, or both. However, if the commercial or archaeological value of the archaeological resource involved and the cost of restoration and repair of the resource exceeds $500, that person can be fined not more than $20,000, imprisoned for up to 2 years, or both.

Count 3
Under 18 U.S.C. § 641, it is a crime for a person to steal or purloin, or sell or convey without authority, any thing of value of the United States.

The punishment of a violation of this section is a fine, imprisonment for up to 10 years, or both.

Count 4
This count uses the definition of archaeological resource found in 16 U.S.C. § 470bb(1), along with the punishment provision found in section 470ee(d). Under 16 U.S.C. § 470ee(a), no person may excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands, unless that activity is conducted under a permit or the exemption for members of an Indian tribe.^[4]

Count 5
Under 18 U.S.C. § 1361, it is a crime for a person to willfully injure or commit any depredation against any property of the United States.

If the damage to the property exceeds the sum of $1,000, the punishment is a fine, imprisonment for up to ten years, or both.

Count 6
This count uses 18 U.S.C. § 1170(a) and 25 U.S.C. § 3002(c).

Under 18 U.S.C. § 1170(a), it is a crime for a person to knowingly sell, purchase, use for profit, or transport for sale or profit, the human remains of a Native American without the right of possession to those remains.

The punishment for a violation of section 1170(a) is a fine, imprisonment for not more than 12 months, or both.

25 U.S.C. § 3002(c) states that the intentional excavation and removal of Native American human remains can be made for purposes of discover, study, or removal only if: the excavation is done according to a permit; the excavation is conducted after consultation with, or consent of, the appropriate tribe; the ownership and right of control is demonstrated; and proof of consultation or consent is shown.

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[1] Michael Milstein, Seven From Central Oregon Indicted in Tribal Grave Site Plot, The Oregonian, Nov. 4, 2005, available here.
[2] Id.
[3] Id.
[4] See, e.g., 16 U.S.C. § 470cc(g)(1).