With any ground-up construction project, there is a large amount of excavation and site work necessary to prepare the ground. All of that digging could uncover something that could stop a project dead in its tracks. For instance, what happens if a contractor uncovers a set of bones or culturally significant artifact? While it might seem tempting to push these items to the side and proceed with business as usual, there are both state and federal laws in place that protect these findings.
In this article, we will explore the reasons behind these laws and the steps that must be taken in the event a qualifying item is uncovered. Although every state has their own laws and are also beholden to federal guidelines, today we will focus on the State of Oregon’s guidance related to the discovery of archaeological sites on private land or property, and how these discoveries might impact a construction project.
We spoke with the Oregon State Archaeologist, John Pouley, to understand the significance, designations, and do’s and don’ts when it comes to identifying and encountering potential artifacts on an archaeological site. Pouley has a master’s degree in Anthropology from Washington State University, and for the last 11 years has worked for the Oregon State Historic Preservation Office (SHPO). Prior to working for SHPO, Pouley was the Senior Archaeologist for the Confederated Tribes of the Colville Reservation in Washington State.
What is an Archaeological Site?
An archaeological site is defined as any location that has “physical remains of past human activity that is at least 75 years old”. These might include anything from an arrowhead, stone tools, foundations from historic buildings or even debris like cans and bottles. While many of these items may seem insignificant, they all contribute to the history of Oregon and its inhabitants.
Archaeologists have discovered human activity dating back to 16,000 years ago. Native Americans and early settlers lived off the land, and their tools, artifacts, burial sites, homesteads, and villages are still being uncovered to this day. According to John Pouley, only 20% of Oregon’s land has been surveyed and inventoried by the Oregon SHPO, which leaves an expansive amount of territory that could be potential archaeological sites.
What do Oregon laws Say About Archeological Artifact Preservation?
Archaeological sites on non-federal public and private lands are protected by Oregon laws which prohibit the removal, excavation or destruction of any cultural resource’s sites and artifacts. Examples of prohibited activities include:
- Using a tool to remove an artifact from the ground
- Vandalizing homestead sites or other old buildings
- Disturbing burial sites
- Digging or probing the ground for historic or Native American artifacts
The significance of archaeological sites is determined by the National Register of Historic Places. To be determined, the site must first be evaluated, which can only be completed by a professionally qualified archaeologist with a state archaeological permit. Violation of state law can result in the following penalties:
- Class B Misdemeanor-Damage to archaeological sites
- Class C Felony (up to $10,000 fine)-Disturbance of Native American human remains or associated funerary objects
Only 20% of Oregon’s land has been surveyed and inventoried by the Oregon SHPO.
Private Lands & Archaeological Sites
It is important to clarify that in the case of archaeological sites on private land, the artifacts and sites discovered actually belong to the landowner. “In the event of an archaeological excavation, the landowner has the right to retain the artifacts, or donate to a tribe or museum, except for Native American human remains, burials, associated funerary objects, sacred objects, and objects of cultural patrimony (ORS97.740)”. This may seem confusing, or at the least, a gray area. After all, the landowner not only has the right to object to a permit or request special considerations of a proposed archaeological survey, but they also must provide consent for anyone to access their land.
The State of Oregon entrusts the landowners to be stewards of these potential sites, though only qualified archaeologists are allowed to survey, collect, or excavate on private lands and must possess a state archaeological permit to proceed with these kinds of investigations. Damage or desecration of protected remains or objects could lead to potential fines, charges, or litigation.
The Oregon SHPO strongly recommends that the best course of action when encountering a potential archaeological site on private land is avoidance. If that is not possible, and there is good reason to believe that it could be an archaeological site, the property owner can have the area tested by a qualified archaeologist. The Oregon SHPO offers guidance and resources to address any questions or concerns about the evaluation process and property rights, including these FAQ’s.
Construction and Project Planning
When it comes to construction, time and scheduling are of the utmost importance. Between supply chain issues, labor shortages, permitting delays and the myriad of other obstacles every project can face, the last thing any team wants is to uncover something that could set their project back and potentially place their schedule in jeopardy. State Archaeologist John Pouley recommended steps that can be initiated from the beginning of the project to avoid potential delays:
- Contact the Oregon SHPO to determine if the property is in the historic registry or if there are registered archaeological sites nearby.
- Require the landowner to provide an archaeological report completed by a qualified/professionally recognized archaeologist.
- Keep and maintain an inadvertent discovery plan on any site where the ground is disturbed, in the event an archaeological site or artifact is uncovered.
- If the designated project site is close or adjacent to a registered archaeological site, it is logical that it might be an archaeological site as well. Due diligence is always best, and the Oregon SHPO has specific information on finding a qualified Archaeologist.
With most large construction projects, it is customary that the owner provides an archaeological evaluation during the preconstruction process. In the event an artifact is uncovered during the construction process, the following steps should be taken immediately:
- Stop work at that location, protect and block off to area.
- Contact the Oregon SHPO for further information and instructions.
- Avoid further work until the site is evaluated.
While the possibility of a project being shut done seems detrimental, according to Pouley, no site has ever been permanently shut down. However, delays are likely. If contact is made quickly with the Oregon SHPO, they will help coordinate with all interested parties to expedite the process.
Potential Human Remains
If, during excavation or site work, bones are uncovered, there are specific steps necessary in to order to ensure compliance with the law: any bones found should be treated as human remains, therefore the Oregon State Police should be the first agency contact. They will approach the site as a potential crime scene.
In addition to the possibility of the bones being connected to a crime, they could be the bones of Native America or early Euro-Americans and there are very specific laws (ORS 97.745 and ORS 97.750) that apply to the treatment of Native American remains. It is both ethically and legally critical to follow proper protocols to avoid potential fines, penalties, or criminal charges.
In the case of the discover of remains, the following agencies must be contacted:
- Oregon State Police
- Oregon State Historic Preservation Office
- Legislative Commission on Indian Services
- Appropriate Indian Tribe(s) (contact information will be provided by the Legislative Commission on Indian Services)
Keep in mind that in some cases federal laws and guidelines may apply to these scenarios, as well.
Why is protecting archaeological sites important?
According to the Protection of Archaeological and Cultural Resources guide provided by the State of Oregon Department of Environmental Quality, “these sites are the legacy of our country and the heritage of all people. Once removed or damaged, they cannot be restored. The relationship or context between artifacts and their surroundings is as important as the artifacts themselves. The artifacts should be left undisturbed.” Oregon is and has been home to dozens of Native American tribes, and currently has nine registered tribes. The tribes have been diligent in protecting their history and have been integral in the establishment of both state and federal laws regarding the protection of archaeological sites. There is a deep-rooted and devastating history of desecration of their sacred lands and artifacts, which makes it vital to protect the remaining sites in an effort to preserve their culture and heritage.
In addition, artifacts recovered from archaeological sites can also be connected to the lives of early settlers and various cultures and communities who have lived and established their legacy in Oregon. Pouley explained that ultimately, these artifacts tell a story; a tangible record that helps paint the big picture of the history of mankind and the earth.
While the construction industry revolves around the act of building new structures, there is also an ethical component to our craft that encourages preservation and responsible stewardship. Construction companies have a duty to not only act in the best interests of the owner, client, or developer, but also to abide by and adhere to the laws and regulations established by local, state, and federal jurisdictions. While the discovery of an archeological site may not be predictable, the steps to follow upon their discovery are clear.