State Legislation, 123rd Ohio General Assembly, 1999-2000

Chair's note: It is important that OAC members understand state (and federal) laws affecting archaeology and related matters, such as vandalism, desecration, and cemeteries. This is particularly important now because some members of the Indian artifact collector community in Ohio may seek to modify Ohio laws that they perceive as a threat to collecting Indian artifacts. Also, some Native Americans who worked to get recent revisions to Ohio's vandalism and desecration laws passed may attempt to revise these laws again as they find that these laws are not effective in prohibiting the excavation of Native American (and other) human remains and associated grave goods during archaeological investigations or when the excavator has the permission of, or is, the property owner, and do not affect the curation of such remains and grave goods at non-federally funded institutions. Please prepare to address these matters by educating yourself about Ohio's laws dealing with archaeology.

S.B. 51. Increases penalties for the desecration of a place of worship or an object of reverence or sacred devotion

Despite what you may have heard from some individuals in the Indian artifact collector community, this bill (now law) does not increase the level of offense for desecrating an "Indian mound or earthwork, cemetery, thing, or site of great historical or archaeological interest" [ORC Section 2927.11(A)(3)] from a second degree misdemeanor to a felony. The intent of this law is to increase the level of offense for desecrating churches, temples, and similar places of worship, not archaeological and historical sites or cemeteries as defined in the existing desecration statute. The law increases the penalty for desecrating a "place of worship, its furnishings, or religious artifacts or sacred texts within the place of worship [ORC Section 2927.11(A)(4)], or any other object of reverence or sacred devotion [ORC Section 2927.11(A)(6)]," and specifically references that it does not apply to the section of the existing desecration law prohibiting desecration of archaeological and historical sites and American Indian cemeteries.

Based on the amount of physical harm to such property, the law increases the level of offense from a second degree misdemeanor to a fifth, fourth, or third degree felony. The law also permits the recovery of compensatory, punitive, and exemplary damages, court costs, attorney's fees, and other reasonable expenses in convictions for all forms of desecration (Ohio Revised Code [ORC] Section 2927.11) and vandalism (ORC Section 2909.05) from the offender by the person suffering injury or loss pursuant to ORC Section 2307.70.

This bill was signed into law by Governor Taft on June 17,1999. It became effective September 20, 1999.

The full text of this and all other bills and laws, and the Ohio Legislative Service Commission's analysis of this and all other bills, can be acquired from your State Representative or from the Ohio General Assembly's Web site at Copies of existing Ohio laws, including the vandalism and desecration laws referred to above, can also be accessed on the Internet at

Federal Legislation

Revisions to 36 CFR Part 800, "Protection of Historic Properties," Approved by the Advisory Council on Historic Preservation On February 12, 1999, following six years of review, comment, and study, the Advisory Council on Historic Preservation (ACHP) formally adopted revised regulations implementing Section 106 of the National Historic Preservation Act (NHPA). These regulations were prepared pursuant to the 1992 amendments to the NHPA. The NHPA requires that Federal agencies take into account the affects of their actions on historic properties and provide the ACHP an opportunity to comment on such actions. The version adopted is based on the May 1998 draft of the proposed regulations. The final regulations were published in the Federal Register on May 18th and took effect June 17th.

The revised regulations emphasize the responsibilities of Federal agencies and permits more direct involvement from State, local, and Tribal governments, and the public, in the Section 106 process. The revised regulations also reduces the ACHP's role in routine Federal undertakings, thus permitting the ACHP to focus its involvement on complex and controversial Federal undertakings and overseeing the implementation of the Section 106 process.

Draft Guidance on Archaeological Data Recovery Projects Issued by the Advisory Council on Historic Preservation

[Chairs note: The ACHP seeks comments on this guidance intended for use by Federal agencies, State and Tribal Historic Preservation Offices, and others pursuant to 36 CFR Part 800. Everyone should read and consider the implications of this guidance. It contains some very useful, interesting, and perhaps controversial guidance, such as recommending that archaeological data recovery is not appropriate when Native American "human remains, associated or unassociated funerary objects, sacred objects, or items of cultural patrimony" are present or likely to be present. OAC members should have received a copy of this guidance either at the May 21 OAC meeting or with the minutes from that meeting. If you have not received a copy and want one, please contact Al Tonetti at This email address is being protected from spambots. You need JavaScript enabled to view it. or (614) 268-2514]

The ACHP has issued a draft Federal Register notice and guidance on consultation for projects involving archaeological data recovery. Basically, the ACHP has developed a recommended approach for consulting on the recovery of significant information from archaeological sites. The guidance is intended to 1) simplify the process of reaching agreement in these situations, 2) clarify expectations for archaeological data recovery plans, 3) clarify expectations for consultation with affected parties, 4) ensure that archaeological data recovery is used only when appropriate, and 5) make clear that if Federal agencies and other consulting parties follow this guidance, the ACHP is unlikely to get involved in consultation or raise objections to resulting agreements unless there is an unusual or controversial situation. This guidance took effect on the effective date of the revised Section 106 regulations, June 17, 1999. Written comments concerning this guidance should be directed to the Executive Director, ACHP, Old Post Office Building, 100 Pennsylvania Ave., N.W., #809, Washington D.C. 20004; FAX (202) 606-8647; email .

The guidance identifies 10 basic principles concerning the treatment of archaeological sites when archaeological data recovery is being considered, and 12 principles concerning resolving adverse effects through the recovery of significant information from archaeological sites. A model format for a Memorandum of Agreement concerning archaeological data recovery projects is also included in the guidance.

Current information about the revised 36 CFR Part 800 regulations and the draft guidance on archaeological data recovery projects can be obtained from the ACHP's Web site

Draft Principles of Agreement Regarding the Disposition of Culturally Unidentifiable Human Remains Issued by the National Park Service

At its June 25-27, 1999 meeting, the Native American Graves Protection and Repatriation Act (NAGPRA) Review Committee approved draft principles of agreement regarding the disposition of culturally unidentifiable human remains pursuant to Section 8 (c)(5) of NAGPRA. Written comments received by September 3, 1999 were to be considered by the Review Committee at their next scheduled meeting. The draft principles were published in the Federal Register on July 29, 1999 (Vol. 64, No. 145, pp. 41135-41136). The Federal Register notice notes that the Review Committee "wishes to underscore the preliminary nature of the principles and their placement as a beginning point for consideration of this topic." Comments should be addressed to, and copies of the notice can also be obtained from, the NAGPRA Review Committee c/o Departmental Consulting Archeologist, National Park Service (2275) 1849 C. St., NW. (NC340), Washington, DC 20240. Electronic comments are unacceptable. For additional information contact Dr. C. Timothy McKeown at the National Park Service at (202) 343-4101.

Revisions to 36 CFR Part 61, "Procedures for State, Tribal, and Local Government Historic Preservation Programs," Approved by U.S. Department of the Interior, National Park Service

On March 9, 1999, following nearly two and half years of review, comment, and study, the National Park Service published the final rule revising requirements for State, tribal, and local historic preservation programs carrying out actions under the NHPA. All 50 states, the District of Columbia, and eight U.S. territories participate in such programs on lands under their jurisdiction, as do more than 1,100 certified local governments and 17 tribal governments. These regulations were prepared pursuant to the 1992 amendments to the NHPA. The rule took effect June 9, 1999.

The revisions to 36 CFR Part 61 do not address the Indian tribe sections of the regulations, 36 CFR Part 61.8 and 61.9. These sections are currently under development by NPS in consultation with federally recognized tribes and other interested parties. When a draft of these sections is completed it will be issued for review and comment in the Federal Register. Given the increased role of federally-recognized tribes, and for that matter state and local governments in the NHPA as a result of the 1992 amendments, Sections 61.8 and 61.9 may result in further revisions to 36 CFR Part 61.

Senate Bill 548, to Establish the Fallen Timbers Battlefield and Fort Miamis National Historical Site in the State of Ohio

On March 4, 1999, Ohio Senator Michael DeWine introduced Senate Bill 548 designating the Lucas County, Ohio sites of Fallen Timbers Battlefield (1794) and Fort Miamis (1794-1813) as national historic sites. These two sites are associated with the U.S. military history and Native American culture between 1794-1813. In May, the bill was recommended for approval by the Senate Energy and Natural Resources Committee and is now before the U.S. Senate. The bill would authorize the Secretary of the Interior to provide technical assistance to the State of Ohio, local governments, and to nonprofit organizations in order to implement a stewardship plan and develop programs to preserve and interpret the historical, cultural, natural, recreational, and scenic resources of these two sites.