Legal Authorities

Activities under the Federal Archeology Program are authorized by federal laws and associated regulations. Each agency or bureau within the program has its own enabling authorization and mission, but all must comply with federal laws to preserve and protect archeological resources located on lands or projects it funds.

The Antiquities Act of 1906 laid the legislative foundation for archeological activities and programs on federal lands, as well as the public policy of progressive archeological resource management that it initiated. Laws passed in the wake of the Antiquities Act have aimed to expand or improve federal management of archeological resources. Most important among current laws are the Archeological and Historic Preservation Act (AHPA), Archaeological Resources Protection Act (ARPA) and the National Historic Preservation Act (NHPA), especially Sections 106 and 110.

The regulations, policies, and guidelines associated with federal laws describe and define activities to preserve, properly treat, and protect archeological sites and objects.

Major pieces of legislation affecting federal archeology include:

Antiquities Act, 1906 (P.L. 59-209)
The Antiquities Act was the first legislation providing protection for archeological resources. It protects all historic and prehistoric sites on federal lands and prohibits excavation or destruction without a Permit for Archeological Investigation. It also authorizes the President to declare areas of public lands as national monuments and to reserve public or accept private lands for that purpose. Applicable regulation: 43 CFR 3

Historic Sites Act, 1935 (P.L. 74-292)
The Historic Sites Act declares that preservation for public use of historic sites, buildings, and objects is a national policy. It gives the Secretary of the Interior authority to make historic surveys, to secure and preserve data on historic sites, and to acquire and preserve archeological and historic sites. The Act establishes the National Historic Landmarks Program for designating properties having exceptional value in commemorating or illustrating the history of the United States. Applicable regulations: 36 CFR 65, National Historic Landmarks; and 36 CFR 68, DOI Standards for Historic Preservation.

Federal-Aid Highway Act, 1956 (P.L. 91-605)
The Act was the first statute protecting archeological resources from the impacts of federal or federally financed construction projects. Because of public concern about the destruction of archeological sites as a result of highway construction, Congress included in the Act a provision prohibiting the use of historic lands unless there was no feasible alternative.

Reservoir Salvage Act, 1960 (P.L. 86-523)
Federally constructed reservoirs represented another major source of destruction of archeological resources that could not be resolved without a specific source of funding. The Act requires federal agencies building, or permitting the building, of reservoirs, to notify the Secretary of the Interior when such activities might destroy important archeological, historic, or scientific data. The Secretary is authorized to conduct appropriate investigations to protect those data. The Act also authorizes agencies to spend up to 1% of their construction funds on the protection of historic and archeological resources. It was the first Act to recognize that archeological sites are important for their scientific content, and to provide a source of funding for collecting archeological data.

National Historic Preservation Act, 1966 as amended (P.L. 95-515)
NHPA establishes as federal policy the protection of historic sites and values in cooperation with States, local governments, and stakeholders. Under the Act, Federal agencies are required to consider the effects of their undertakings on historic resources, and give the Advisory Council on Historic Preservation a reasonable opportunity to comment on undertakings that pose an adverse effect to cultural resources.

In 1980, Congress passed a series of amendments to the Act and other preservation legislation. Included are codification of portions of EO 11593, requiring an inventory of Federal resources and Federal agency programs to protect historic resources; clarification that Federal agencies can consider inventory and evaluation of resources (Section 110 activities) to be excluded from the 1% fund limit under the 1974 Act (only actual data recovery activities must be included within the 1%); and authorization for Federal agencies to charge reasonable costs for protection activities to Federal permittees and licenses. This last provision resolved a controversy about whether private interests could be required to pay costs of protecting archeological and historic resources that would otherwise be destroyed by those activities. Applicable regulations: 36 CFR 60, National Register of Historic Places; 36 CFR 65, National Historic Landmarks; 36 CFR 800, Protection of Historic Properties (Advisory Council on Historic Preservation); 36 CFR 801, Urban Development Action Grant Program - Historic Preservation Requirements; 36 CFR 61, Procedures for Approved State and Local Government Programs; and the Secretary of the Interior’s Standards and Guidelines for Archeology and Historic Preservation.

Department of Transportation Act, 1966 (P.L. 89-670)
This Act directs the Secretary of Transportation to reject any program or project that requires the use of land from a historic site of national, state, or local significance unless there is no feasible and prudent alternative to using such lands and the program includes all possible planning to minimize harm to such historic properties. It applies to the Federal Highway Administration, Federal Aviation Administration, the Urban Mass Transportation Administration, and the U.S. Coast Guard.

National Environmental Policy Act, 1969 (P.L. 91-190)
NEPA requires Federal agencies to prepare an Environmental Assessment (EA) for every major Federal action that affects the quality of the human environment, including both natural and cultural resources. It promotes the enhancement of the environment and establishes the President's Council on Environmental Quality (CEQ).

Archeological and Historic Preservation Act, 1974 (P.L. 93-291)
Congress amended the Reservoir Salvage Act of 1960 to extend the provisions of the Act to all federal construction activities and all federally licensed or assisted activities that will cause loss of archeological data. It required the Secretary of the Interior to coordinate this effort, and to report annually to Congress on the program. Section 7 of the statute authorizes Federal agencies responsible for projects to transfer to the Secretary of the Interior funds to assist them in meeting their responsibilities, up to 1% of the total amount authorized for the project.

American Indian Religious Freedom Act, 1978 (P.L. 95-341)
AIRFA makes it a policy of the government to protect and preserve for American Indians, Eskimos, Aleuts, and Native Hawaiians their inherent right of freedom to believe, express, and exercise their traditional religions. It allows them access to sites, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rights. It further directs federal agencies to evaluate their policies and procedures in consultation with Native traditional religious leaders to determine changes necessary to protect and preserve Native American cultural and religious practices. Applicable regulation: 43 CFR 7, ARPA Permitting

Archaeological Resources Protection Act, 1979 (P.L. 96-95)
ARPA supplements the provisions of the 1906 Antiquities Act. The law makes it illegal to excavate or remove from federal or Indian lands any archeological resources without a Permit for Archeological Investigation from the land manager and codifies criminal penalties. Permits may be issued only if the resulting activities will increase knowledge about archeological resources. It also requires each federal agency to establish an archeology education program. Applicable regulation: 43 CFR Part 7 Protection of Archaeological Resources

Arctic Research Policy Act, 1984 (P.L. 98-373)
The interests of the U.S. in the Arctic and the need for research to ensure the goals of the U.S. Arctic policy are the basis of this Act. It establishes a framework for developing priorities in basic and applied research, including archeology. The Act stresses the coordination of Arctic research, through interagency Federal/State, and private sector cooperation with respect to planning and data sharing. The Act also calls for public awareness and cooperation in Arctic research.

Abandoned Shipwreck Act (ASA), 1987 (P.L. 100-298)
The ASA establishes government ownership over most abandoned shipwrecks in the nation's rivers, lakes, and in the ocean up to three miles offshore from the coast. Most of the shipwrecks covered by the statute are significant historical resources. The physical remains of their hulls and super-structure are vital biological habitat for marine life. Shipwrecks are protected from exploitation by commercial salvagers and makes the wrecks available for the enjoyment of the public. Applicable regulation: Abandoned Shipwreck Act Guidelines

Native American Graves Protection and Repatriation Act (NAGPRA), 1990 (P.L. 101-601)
NAGPRA specifies special treatment for Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony and stipulates that illegal trafficking in human remains and cultural items result in criminal penalties. It provides a process for human remains and certain objects to be returned to communities of origin. Applicable regulation: 43 CFR Part 10

Sunken Military Craft Act (SMCA), 1990 (P.L. 108-375)
The primary purpose of SMCA is to preserve and protect from unauthorized disturbance all sunken military craft that are owned by the United States government, as well as foreign sunken military craft that lie within U.S. waters. Applicable regulation: 32 CFR 767.6 Historic Sunken military craft and terrestrial military craft permit application

Curation of Federally Owned and Administered Archaeological Collections (36 CFR 79), 1990
This Part provides government-wide regulations for the curation and care of federal archeological collections required by NHPA, the Reservoir Salvage Act, and ARPA. The regulations establish procedures and guidelines for managing and preserving collections, including objects and associated records. Revision of the regulation in 2022 provided a process for disposing of materials that are no longer of archeological interest from Federal archeological collections.