Checks and Balances: The Legal Future for Archaeology and Archaeologists

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Source: Wikimedia

If your Facebook feed as a fellow anthropologist is anything like mine, then you know the fear that has accompanied the election of the new president. My friends are expecting imminent deportations, registries, all of the worst possible scenarios. At a lower level of terror, my archaeologist friends are also fearing for their jobs and for our natural and archaeological resources.

As a naturalized immigrant, the granddaughter of Holocaust survivors, and the adoring aunt of two biracial toddlers, I am not immune to the nightmare scenarios, and I also fear for the future of archaeology. But I am also a lawyer by training, and my legal background colors my views. There are checks and balances in place, and they are not just formalities, and that is what I want to write about this week.

I’m not a constitutional scholar, nor an expert on the laws surrounding archaeology, so this is necessarily a basic and general discussion. I’ll try to address the laws that surround archaeology but also the possibility of civil rights violations that are really keeping people awake at night right now. And in the hopes of including people who might have different political views, I’m going to put on my lawyer hat and try to keep my discussion as politically neutral as I can.

What impact can the new administration have on the laws surrounding archaeology?

We don’t really know much about what the new president intends, but many archaeologists are convinced that he is not a friend to our field. As a real estate developer, he has previously had run-ins with archaeological compliance, and it’s safe to say that he is pro-business (including particularly the business of fossil fuel) and generally opposes environmental regulations and other rules that restrict business. His proposed border wall alone might be the impetus for amending laws, since archaeological and environmental compliance would slow its construction and add to its cost.

Archaeological law is rooted in statutes such as the National Historic Preservation Act (NHPA), the Native American Graves Protection and Repatriation Act (NAGPRA), the Antiquities Act, and the Archaeological Resources Protection Act of 1979 (ARPA). Congress can repeal or amend statutory law, with a simple majority vote. With the Republicans holding a majority in both houses for the next two years, and knowing what we know about many Republicans in Congress, I think we can expect changes in the legal framework that surrounds our work. But it won’t necessarily be overt repeal—a statute can be completely undermined or altered by one change to a definition in the statute, by a rider or amendment to some completely unrelated legislation, by defunding of the regulating agency.

In another area of concern to many archaeologists, I do think our public lands are especially in danger. Talk of selling off National Parks is probably overreaction, but I suspect Republicans in Congress will continue to starve the Park Service and other land managers of resources, and other public lands are likely to be increasingly opened up for resource extraction. (For more on this, see Kellam Throgmorton’s recent discussions about public lands, including his post on the proposed Bears Ears National Monument.)

Although Congress passes the laws, the real details are often left to administrative agencies of government, which pass regulations to carry out the intent of the law. Administrative regulations do not require Congressional approval, so a new president’s political appointee can significantly alter the regulatory landscape relatively quickly. But there are detailed rules that agencies have to follow in either establishing or eliminating regulations. You’ve heard about public notice, public comment periods and agency hearings. So while the new administration can completely rewrite or eliminate our regulatory schemes, they do have to jump through hoops. And the public gets a say, which we should all be taking advantage of in the coming years.

Another source of rulemaking that has become very important under President Obama were his executive orders, many of which he issued to circumvent a dysfunctional Congress. The new president can repeal these executive orders by fiat on his first day.

Both statutes and administrative regulations are open to judicial review for violating the Constitution or existing law. Regulations can also be challenged for failure to comply with procedural requirements as well as for going beyond what Congress intended.  Agencies must be able to show that the changes were needed and (in most cases) that they were not “arbitrary and capricious,” and as a result many regulations over the years have undergone lengthy judicial challenges.

Finally, let’s not forget that state law stays in place even if federal regulations are eliminated. On issues like pollution or consumer protection, state regulations in places like California or my home state of Connecticut are often more stringent than federal law. But of course, that is not the case in all states, or on all issues. For archaeologists, this may be the time for all of us to learn more about state laws on archaeology and work to strengthen them where they are lacking.

Can the President suspend or violate people’s Constitutional rights?

Worries about our field and our work are one thing, but many of us right now are much more concerned about human beings, especially people in marginalized groups. No matter what your views on our new president, it is astonishing that we are now in a time where people are genuinely living in fear of roundups, autocracy, suppression of the press, and white supremacist resurgence.

At his inauguration, the president will take an oath to uphold the Constitution. When I began clerking for a federal magistrate judge, she swore me in and reminded me that the oath that I had just taken, and that every federal employee takes, is the same as the president’s. And neither Congress nor the states can legally pass laws that violate the Constitution. Our constitutional rights include (among many others) the prohibition on arrests without probable cause, a ban on targeting people for their religion, and the protection of free speech and freedom of the press. (The Supreme Court has also declared that the Fourteenth Amendment guarantees a constitutional right to abortion and to same-sex marriage, and even those who might like to someday see the Supreme Court limit or overturn these rights are still bound by that precedent.)

If the government does try to violate constitutional rights, American citizens are fortunate to have a judicial branch with teeth. Unlike other countries, our courts don’t just enforce the law—they are empowered to throw out a law or government action that violates someone’s constitutional rights, and they do so routinely. Everyone is very focused right now on the Supreme Court and its nine justices. There is cause for both despair and hope, and I will leave that to the experts. But what I really want to talk about is all of the other federal judges out there.

There are over 3000 federal judges appointed by the president and confirmed by the Senate. Most of these are at the District Court level. I worked at a District Court for five years, and I am here to tell you that you can have faith in most of those judges. They are selected from the brightest and best lawyers and are appointed for life. Many, many judges now in office were appointed by either President Clinton or President Obama. (But there are also many vacancies, thanks to years of foot-dragging by Congress.) Most legal cases start at the District Court level, and many stay there for years before the case is decided.

The work of our District Courts includes an enormous amount of time spent on civil rights litigation– prisoners complaining about how they’re treated, employees alleging discrimination at work, people who claim the police arrested them without probable cause. Judges often write detailed, reasoned opinions in these cases, and having spent long evenings writing drafts of such opinions I can assure you that no one takes that work lightly.

The decisions of District Court judges can be appealed to the regional Circuit Court, of which there are thirteen. These are mini Supreme Courts, with justices who have distinguished themselves in lower courts or as brilliant legal scholars. Most of the circuits currently have a majority of judges appointed by a Democratic president.

So while the Supreme Court decides a few crucial cases each year, on issues of national importance, the great majority of judicial review happens in lower courts, and I believe they can, by and large, be expected to be a strong line of defense against government encroachment on our civil rights. Justice can be slow, and courts are cautious, but the history of the civil rights movement shows how crucial federal courts have always been in bringing about change and progress.

What about non-citizens?

Our constitutional law is strong, but constitutional rights have always been much more fragile in the context of immigration law. Non-citizens do have the same constitutional rights of due process as citizens when they are in a criminal court, but things are different in immigration matters. The Supreme Court and other courts have sometimes turned a blind eye to abuses of non-citizens—and even citizens perceived as having ties to another country—in the name of national security.

What can we do about it all?

To anyone who says “this is just how Hitler got his start” or “this is just like Putin,” I would say that there are important differences, including our strong courts and well-developed constitutional law, organized and committed non-governmental watchdogs and public interest law groups, and a strong commitment among so many of members of the public to protect the most vulnerable members of our society.

We also see it coming, and that may be the most important difference. We know that law can be incrementally undermined, judges can be co-opted and intimidated. So while our courts are a strong defense right now, we have to be vigilant and vocal about judicial appointments (not just the Supreme Court) and we can also support and (if possible) donate to legal groups that fight for civil rights. For those who fear Trump’s impact on our judiciary, limiting him to one term will be crucial.

As I write this, we still have only vague knowledge of what the next administration intends to do. What is clear to me, though, is that archaeologists are going to have to become savvier about the processes that shape our laws. Our archaeological organizations need to be watching for bills, amendments and proposed regulations that impact our work, and all of us need to monitor, agitate, share information and support the legal structures that we value. Recently, archaeologists have been vocally advocating for Congress to pass a bill for NHPA funding; I think this is exactly the kind of specific advocacy we need to be doing as we speak up for our national heritage and offer our expertise to lawmakers. We also should work at the state and local level. In my opinion, we should also forge and strengthen ties with our natural allies in this fight, including historic preservation supporters, Native Americans, the environmental lobby and other scientists. And of course, our educational mission as public archaeologists has never been more important.


About the Author: Michelle Turner is a PhD candidate at Binghamton University. She works on southwestern archaeology and is currently writing her dissertation about recent archaeological testing at Aztec Ruins National Monument. She has a BA in International Studies from American University, a JD from the Vanderbilt University School of Law and an MA in anthropology from Binghamton University. Prior to starting her PhD, Michelle practiced law for about ten years, first at two large law firms and then as a clerk for a federal magistrate judge. In addition to her work in southwestern archaeology, Michelle also works on cultural property law and repatriation efforts. She is the author of a law review article titled The Innocent Buyer of Art Looted During World War II. Please note that this post is not intended as legal advice.

9 Comments

  • Don Spohn says:

    Michael!
    I wish you would contact me in 2 years. In the meantime ask yourself a couple of questions:
    (1) Why, while studying archaeology, a noble necessary profession, did you acquire so many exaggerated, agressive fears?
    (2) Are you open minded enough to see and admit your errors if that kind of data comes in over the next 2 years?
    Finally, you might ask yourself; “Who am I (Michael) trying to please in writing this article?” And why do I wish to please them?
    At your age, I made similar errors, which now, at nearly 85, I can look back at with some amusement.
    Don Spohn, Ph. D. Founder & President
    Great Lakes Copper Research
    Editor and Publisher, The Prehistoric Copper Artifact Journal

  • Ian Burrow says:

    I disagree that Michelle (not Michael) has “exaggerated, aggressive fears”. You only have to read the Republican Platform, observe the legislative history of Republicans in recent Congresses, and review the statements of President-Elect Trump, to understand well that the historic preservation program of this country, as it has developed over the last 50 years, is now under threat. It is under threat from a worldview that essentially denies that “government” can do anything good, and affirms that “the market” should be the ultimate arbiter of value. It also believes, without any apparent evidence, that states are in some way better at dealing with major issues like environmental protection, energy development, and the stewardship of public lands, than the Federal government. This worldview denies objective facts – in the case of historic preservation, its clear economic and social benefits – in pursuit of its goals. I sincerely hope that Dr Spohn is correct in thinking that Michelle (and I) are misreading all this, but I for one am going to be keeping my eyes open. If I were Michelle I might be inclined to take offense at Dr Spohn’s assumption that I was trying to please someone by writing this well-considered and useful piece. I invite Dr Spohn to view today’s ACRA video on the same issues and see how well these two presentations reinforce each other.

  • Kellam says:

    Hi Michelle,

    If a great deal of the action is in district courts, what kinds of actions can archaeologists take to advocate for protections on things like public lands and national historic preservation legislation? Environmental groups have brought many suits to court over issues like federal agencies approving permits for energy extraction without a sufficient environmental impact statement or an out of date resource management plan. I have heard of fewer incidents of archaeologists bringing suit against agencies for issues like these. Do you think that is a productive avenue for us to pursue?

    Cheers,
    Kellam

  • mturner says:

    Good question Kellam, but a tough one that I can only give really general answers to. Yes, the environmental examples you cite seem like exactly the level at which people could challenge agency actions. And if agencies do change their regulations substantially, then I’d expect that legal challenges could also go to the rulemaking process—maybe they didn’t collect enough data or didn’t consider it in the right light before they revised the regulations. Good lawyers can usually find good grounds for challenges, and yes that could be productive– at a minimum it could delay action while we hope for changes in Washington in two or four years. But it would also be very expensive to hire those good lawyers. And, as you know, we also have to be cognizant that not everyone in the places we work will appreciate archaeologists standing in the way of deregulation. I’d say we should be working with environmental groups when we can, bolstering their arguments, since they are much more experienced and organized in this kind of advocacy.

  • K. E. Seeber says:

    Michelle,

    Finally got to this piece; great job! This was very helpful to a law and regs noob like myself. I very much appreciate your outlining of the District Court judges, which gives me a little more knowledge and hope. Could you maybe explain a bit more about this section
    “The new president can repeal these executive orders by fiat on his first day.”? What is a fiat, and how far would that go. To all executive orders? Again, this was a great piece, and thanks for putting this all in line for us!

    • mturner says:

      Hah, a Fiat is an Italian car! Or a decree– as in, he can just order it and make it so without needing Congress or agency action or a vote or anything else. And yes, as far as I know that applies to any executive order. There’s been lots of discussion this past week about whether he can repeal President Obama’s new National Monument designations in the same way (and maybe that is what you’re wondering about?). It seems to be an open question– no president has ever tried to do it, but the law’s not crystal clear that he can’t.

    • mturner says:

      Glad to hear the post gave you some hope– that was my intention.

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