Heritage Protection Acts

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United States Historic Antiquities Act

This section will cover the United States Historic Antiquities Acts namely the following:

A. Antiquities Act of 1906

B. Historic Sites, Buildings and Antiquities Act of 1935

C. National Trust for Historical Preservation (1949)

A The Antiquities Act of 1906

The United States has been concerned principally with the protection of historical sites and monuments within the United States, rather than art works or international treasures, and, as to historical sites and monuments, only since the turn of the twentieth century. Although a small movement was started in the United States during the nineteenth century to save a few historic treasures, the Antiquities Act of 190625 was Congress's first attempt to protect historic ruins. The act was passed in response to vandalism at the Casa Grande ruins in Arizona, but it also represented an attempt to preserve Mount Vernon in Virginia.26 The Antiquities Act authorizes the President to set aside historic landmarks and structures as national monuments.27 It provides penalties for destroying or damaging any historic ruins on public lands. The act further provides that any person who excavates, appropriates, injures, or

destroys any historic or prehistoric ruin or monument, or any object of antiquity on lands owned or controlled by the federal government, without permission from the federal government department having jurisdiction over the lands, shall be fined and may be subject to imprisonment.28 The Antiquities Act is limited in its application because it subjects a person to penalties for the appropriation of any "ruin," "monument," or "object of antiquity."29 The definition of these terms is not clear. In United States v. Diaz,30 an individual was convicted in a federal district court under the Antiquities Act for appropriating objects of antiquity

from government land. Upon appeal, the appellate court reversed the conviction stating that the act was too vague regarding the definition of "ruin," "monument," or "object of antiquity."31 The defendant in Diaz. had appropriated face masks found in a cave on the San Carlos Indian Reservation. These masks were identified by a San Carlos medicine man as having been made in 1969 or 1970 by another medicine man and were used by the Apache Indians in religious ceremonies.32 Mter the religious ceremonies, the artifacts were traditionally deposited in remote places on the reservation for religious reasons and were never allowed to leave the

reservation. According to a professor of anthropology who testified in the case, an "object of antiquity" could include something that was made "just yesterday" i fit related to long standing religious or social tradition.33 The appellate court disagreed, explaining that a person must be able to know with reasonable certainty those objects that may not be taken. The court noted that the word "antiquity" can refer not only to the age of an object but also to the use for which the object was made and to which it was put, subjects which the court thought were not likely to be of common knowledge.34 In United States v. Smyer,35 the Tenth Circuit Court of Appeals distinguished Diaz and upheld a conviction for a violation of the Antiquities Act. The defendants in Smyer excavated a prehistoric Mimbres ruin at an archaeological site which was inhabited about AD. 1000-1250.36 The defendants

alleged that the Antiquities Act was vague and, thus, unconstitutional, citing Diaz as authority.37 The court, however, pointed out that Diaz involved newly created artifacts. The SmyerCourt decided that a person of ordinary intelligence should know it is illegal to excavate a prehistoric Indian burial ground and appropriate artifacts that are 800-900 years 01d.38 The court ruled that the Antiquities Act, as applied to the prosecution of defendants for taking artifacts from ancient sites, was not

unconstitutionally vague.39
B. The Historic Sites, Buildings and Antiquities Act of 1935

The Antiquities Act became more effective when Congress passed the Historic Sites, Buildings and AntiqitiesAct (Historic Sites Act) in 1935.40 The Historic Sites Act declared it a national policy "to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the people of the United States."41 The Secretary of the Interior was authorized to restore, reconstruct, and maintain historic sites and properties and to establish and maintain museums for these purposes.42 The act authorized the Secretary to contract and enter into cooperative agreements with the states, municipal subdivisions, and private organizations and individuals, to protect, preserve, maintain, or U.S. 1085 (1980), individuals who were observed digging on Indian lands and removing artifacts, consisting of clay pots, bone awls, stone metal, and human skeletal remains, were indicted under 18 U.S.C. §§ 641, 1361, the general theft and malicious mischiefstatutes. [d. at 270-71. These statutes provide greater penalties than does the Antiquities Act. The Ninth Circuit ruled that when certain conduct is proscribed by

more than one statute, the government may elect to prosecute under either statute unless the congressional history indicates that Congress intended to disallow the more general statutes. [do at 271. The court found no indication that Congress, in passing the Antiquities Act, intended to limit the applicability of the general theft statutes. [d. at 273. Fall, 1993] CULTURAL HERITAGE 69

operate any historic or archaeological building, site, object, or property connected with a public use.43 Pursuant to the Historic Sites Act, the Secretary of the Interior determined, in 1936, that certain land in the City of St. Louis, Missouri, possessed exceptional value as an historic site, and through the City of St. Louis, instituted condemnation proceedings to acquire the land.44 This

action was challenged in Barnidge v. United States,45 based upon an allegation that the Historic Sites Act did not authorize the condemnation of property. The Eighth Circuit Court of Appeals decided that the federal government did have condemnation power to acquire real estate for public use.46 Further, because the Historic Sites Act authorized the Secretary of the Interior to acquire property for purposes of the act, the court ruled that the federal government could acquire by eminent domain, or otherwise,

sites of national historic significance to preserve them "to commemorate and illustrate the nation's h~story."47
C. The National Trust for Historical Preservation in the United States

The National Trust for Historical Preservation in the United States, (National Trust), was chartered in 1949 as a private, nonprofit organization.48 The National Trust "receive[s] donations of sites, buildings, and objects significant in [United States] history and culture, [and] preserve[s] and administer[s] them for the public benefit."49 In Landmarks Preservation Council of Illinois v. City of Chicago,50 the Supreme Court of Illinois ruled that the National Trust had standing to challenge the destruction of private buildings, which the National Trust viewed as having national historic significance, even though the buildings had not been officially declared to be "national landmarks."51 The court reasoned that, in order for the National Trust to perform its congressionally mandated functions, it was essential that the organization be permitted to maintain suits in state courts to prevent the unlawful destruction of

buildings that have national historic significance.52

Sources:

26. See H.R. REp. No. 1457, 96th Cong., 2d Sess. 5 (1980), reprinted in 1980

U.S.C.CAN. 6378, 6380.

27. 16 U.S.C. § 431 (1988).

28. ld. § 433. Under the Antiquities Act, permits are required to excavate upon

federal property. These permits are granted by the Secretaries of the Interior, Agriculture,

and Army, and are issued only to reputable institutions for scientific or historic

preservation purposes. ld. § 432.

29. ld. § 433.

30. 499 F.2d 113 (9th Cir. 1974).

31. ld. at 114.

32. ld.

33. ld.

HeinOnline -- 28 New Eng. L. Rev. 68 (1993-1994)

34. [do

35. 596 F.2d 939 (10th Cir.), ecrt. denied, 444 U.S. 843 (1979).

36. [do at 940.

37. [do at 940-41.

38. [do at 941.

39. [do In United States v. Jones, 607 F.2d 269 (9th Cir. 1979), ecrt. denied, 444

40. Ch. 593, 49 Stat. 666 (1935) (codified as amended at 16 U.S.C. §§ 461-67

(1988 & Supp. I 1989».

41. 16 U.S.C. § 461 (1988 & Supp. I 1989).

42. [d. § 462 (f).

HeinOnline -- 28 New Eng. L. Rev. 69 (1993-1994)

43. ld. § 462(e).

44. See Barnidge v. United States, 101 F.2d 295, 296 (8th Cir. 1939).

45. 101 F.2d 295 (8th Cir. 1939).

46. ld. at 297; see 40 U.S.C. § 257 (1988). In United States v. 16.92 Acres ofLand,

670 F.2d 1369 (7th Cir.), cert. denied, 459 U.S. 824 (1982), the Seventh Circuit ruled

that 40 U.S.C. § 257 grants the federal government condemnation powers under

other federal statutes. ld. at 1371. The court ruled that a federal statute need not

specifically include condemnation as a permissible method of property acquisition.

ld. Unless a statute excludes condemnapon as a method of property acquisition, the

federal government has such a right. ld.

47. Barnidge, 101 F.2d at 299.

48. Ch. 755, § 1,63 Stat. 927 (1949) (codified as amended at 16 U.S.C. §§ 468-68d

(1988».

49. 16 U.S.C. § 468 (1988). The activities of the National Trust fall under the

direction of a board of trustees composed of the Attorney General of the United

States, the Secretary ofthe Interior, the director ofthe National Gallery ofArt (Smithsonian

Institution), and six United States citizens. ld. § 468b.

50. 531 N.E.2d 9 (TIl. 1988).

51. ld. at 14.

HeinOnline -- 28 New Eng. L. Rev. 70 (1993-1994)

Tennessee Heritage Protection Act of 2013

(HB.553)

State of Tennessee

PUBLIC CHAPTER NO. 75

HOUSE BILL NO. 553

8~ Representaives McDaniel, Harrison, Roach, Powers, Todd, Lollar, Coley, Kent

Williams, Womick, Sargent, Holt, Casada, Weaver

Substituted for: Senate Bill No. 836

By Senators Ketron, Burks

AN ACT to amend Tennessee Code Annotated, Title 4; Title 5; Title 6; Title 7 and Title

12, relative to historic preservation.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE.STATE OF TENNESSEE:

SECTION 1. This act shall be known and may be cited as the "Tennessee Heritage

Protection Act of 2013."

SECTION 2. Tennessee Code Annotated, Title 4, Chapter 1, Part 4, is amended by

adding the following language as a new section:

4-1-412.

(a)

(1) No statue, monument, memorial, nameplate, or plaque which has

been erected for, or named or dedicated in honor of, the French and Indian War,

American Revolution, War of 1812, U.S.-Mexican War, the War Between the

States, Spanish American War, the Mexican border period, Wortd War I, World

War II, the Korean conflict, the Vietnam War, Operation Urgent Fury (Grenada),

Operation El Dorado Canyon (Libya), Operation Just Cause (Panama),

Operation Desert Shield/Desert Storm (Persian Gulf War 1), Operation Enduring

Freedom (Afghanistan), and Operation Iraqi Freedom (Persian Gulf War II), and

is located on public property, may be relocated, removed, altered, renamed,

rededicated, or otherwise disturbed.

(2) No statue, monument, memorial, nameplate, plaque, historic flag

display, school, street, bridge, building, park, preserve, or reserve which has

been erected for, or named or dedicated in honor of, any historical military figure,

historical military event, military organization, or military unit, and is located on

public property, may be renamed or rededicated.

(b) No person may prevent the governmental entity having responsibility for

maintaining any of the items, structures, or areas described in subsection (a) from taking

proper and appropriate measures, and exercising proper and appropriate means, for the

protection, preservation, care, repair, or restoration of such items, structures, or areas.

(c) For the purposes of this section, "public property" means all property owned

or leased by the state of Tennessee, any county, municipality, metropolitan government,

or any other entity that is created by act of the general assembly to perform any public

function.

(d) Any entity exercising control of public property on which an item, structure or

area described in subsection (a) is located may petition the Tennessee historical

commission for a waiver to this section. A petition for waiver shall be in writing and shall

state the reason, or reasons, upon which the waiver is sought. At any regularly

scheduled meeting of the commission, the commission may grant a petition for waiver by

a majority vote of those present and voting. The commission may include reasonable

HB553

it.

conditions and instructions to ensure that any items, structures, or areas are preserved

to the greatest extent possible.

(e)

(1) This section shall apply to items, structures, or areas described in

subsection (a) in existence prior to January 1, 1970, and those lawfully erected,

named or dedicated on or after January 1, 1970.

(2) This section shall not apply to items, structures, or areas described in

subsection (a) that are located on public property under the control of, or

acquired by, the department of transportation which may interfere with the

construction, maintenance, or operation of the public transportation system. The

department shall strive to ensure that any such items, structures, or areas are

preserved to the greatest extent possible.

SECTION 3. This act shall take effect upon becoming a law, the public welfare requiring

2

HOUSE BILL NO. 553

PASSED: __ MARCH 14 · 2013~-------

~~~~SPEAKER HOUSE OF REPRESENTATIVES

APPROVED this J.a:. day of _ __._~......_...::;.....;.l....~~--. ____ 2013

BILL HASLAM, GOVERNOR

Tennessee Governor Bill Haslam has recently signed into law the Heritage Protection Act.This law, which applies to the entire state and all cities, prohibits the renaming, removal, or relocating of any military monument or item, such as a statue or flag display, or park, and includes streets and school names, or any other item so honoring a military unit or person. It is effective as of April 1, 2013, and applies to any military item from the French and Indian War through the Mid-East wars, and all US wars in between, including the War Between the States.

This legislation, the basic text of which was written by Lee Millar, SCV Chief of Protocol and LtCdr of the Tennessee Division, was introduced to the Legislature by Tenn Div Cdr Mike Beck to the Senate and Millar to the House, and was passed overwhelmingly by both the House and the Senate by a combined vote of 95-25.Thanks also to those many compatriots who wrote in to their senators and representatives in support.

This law will assist in the Memphis issue with the Forrest Park anti-renaming campaign and will clearly hereafter protect the Forrest Statue, as well as the Jefferson Davis Statute and the SCV Confederate cannons in Confederate Park.It will also protect scores of other Confederate and War For Southern Independence sites throughout Tennessee.

The new law is one of the greatest documents in modern history for the protection and preservation of this state's and nation's military history and heritage.It is hoped that other states will now take up the initiative.

(Original text can be found here: http://www.tn.gov/sos/acts/108/pub/pc0075.pdf )

Alabama

Alabama has pending Heritage Protection Act. (SB12)
Bill Title: Monuments, Alabama Heritage Protection Act, prohibit removal, alteration, or other disturbance of any statue or monument located on public property, exempt Transportation Department

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced) 2015-08-03 - Pending third reading on day 3 Favorable from Finance and Taxation General Fund with 1 substitute

Full Text of bill: Click Here

Mississippi

The Mississippi "Confederate Heritage" Amendment may appear on the November 8, 2016 ballot as an indirect initiated constitutional amendment. The measure, upon voter approval, would add twelve provisions to the Constitution of Mississippi.[1]

One provision would define Mississippi as a "Christian" and "Southern" state whose principles are based on the Christian Bible and where prayer is respected.

Another would establish English as the state's official language.

Multiple provisions would speak to Confederate history and symbols. April would be designated "Confederate Heritage Month" and the last Monday of April would be a state holiday called "Confederate Heritage Day." The public school curriculum would include "appropriate information about Mississippi's Confederate history, heritage, achievements, and prominent people, including Mississippi's African American and Native American veterans." Furthermore, the measure would constitutionalize the state's current flag, which bears the Confederate battle flag's saltire, place the state flag at equal height with the United States flag and require recitation of the state flag salute. The Confederate Battle Flag would be displayed on the state capitol's exterior grounds.[1]

The measure would establish "The Magnolia State" as Mississippi's official nickname, "Virtute et Armis" as the official motto, and "Dixie" as the official song. It would also require "Dixie" to be played whenever the national anthem is played.

The amendment would nullify the 1990 repeal of Section 3 of Article II of the state constitution, which is related to the state's borders.

In addition, the measure would affect a number of public universities' mascots and team names and prohibit certain schools from being forced to merge.

South Carolina

South Carolina Heritage Act of 2000

                   Current Status
Bill Number:                      4895
Type of Legislation:              General Bill GB
Introducing Body:                 House
Introduced Date:                  20000411
Primary Sponsor:                  Wilkins
All Sponsors:                     Wilkins, Haskins, Harrison, Quinn, 
                                  D. Smith, Harrell, Allison, Sandifer, Tripp, 
                                  Webb, Campsen, Littlejohn, Robinson and 
                                  Woodrum
                                  D. Smith, Harrell, Allison, Sandifer, Tripp, 
                                  Webb, Campsen, Littlejohn, Robinson and 
                                  Woodrum
                                  D. Smith, Harrell, Allison, Sandifer, Tripp, 
                                  Webb, Campsen, Littlejohn, Robinson and 
                                  Woodrum
Drafted Document Number:          l:councilbillsgjk21220sd00.doc
Residing Body:                    House
Current Committee:                Judiciary Committee 25 HJ
Subject:                          Heritage Act of 2000, Flags, Confederate; 
                                  Confederacy, Buildings, State House, General 
                                  Assembly
                                  Confederacy, Buildings, State House, General 
                                  Assembly
                                  Confederacy, Buildings, State House, General 
                                  Assembly
                        History
Body    Date      Action Description                     Com     Leg Involved
______  ________  ______________________________________ _______ ____________
House   20000411  Introduced, read first time,           25 HJ
                  referred to Committee
 
(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

A BILL

TO AMEND TITLE 1, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE ADMINISTRATION OF GOVERNMENT, BY ADDING CHAPTER 10 SO AS TO ENACT THE "SOUTH CAROLINA HERITAGE ACT OF 2000" WHICH PROVIDES THAT AS OF A SPECIFIED DATE, ONLY THE UNITED STATES FLAG AND THE SOUTH CAROLINA STATE FLAG MAY FLY ATOP THE DOME OF THE STATE HOUSE AND BE DISPLAYED WITHIN THE STATE HOUSE, WHICH STIPULATES ON THIS DATE WHERE CERTAIN FLAGS OF THE CONFEDERACY SHALL BE FLOWN OR BE DISPLAYED ON THE GROUNDS OF THE STATE CAPITOL COMPLEX, AND WHICH PROHIBITS THE REMOVAL OF THESE CONFEDERATE FLAGS ON THE STATE HOUSE GROUNDS AND THE REMOVAL, CHANGING, OR RENAMING OF ANY LOCAL OR STATE MONUMENT, MARKER, MEMORIAL, SCHOOL, OR STREET ERECTED OR NAMED IN HONOR OF THE CONFEDERACY OR THE CIVIL RIGHTS MOVEMENT WITHOUT THE ENACTMENT OF A JOINT RESOLUTION OF THE GENERAL ASSEMBLY APPROVING SAME ADOPTED BY A TWO-THIRDS VOTE OF THE MEMBERSHIP OF EACH HOUSE; AND TO AMEND SECTION 10-1-160, RELATING TO THE DISPLAY OF THE STATE FLAG ON THE STATE HOUSE, SO AS TO PROVIDE THAT THE UNITED STATES FLAG SHALL ALSO BE SO DISPLAYED, THAT THESE TWO FLAGS ONLY SHALL BE DISPLAYED IN THE CHAMBERS OF EACH HOUSE AND IN CERTAIN OTHER LOCATIONS WITHIN THE STATE HOUSE, AND THAT NO OTHER FLAG MAY BE DISPLAYED IN THESE LOCATIONS OR WITHIN ANY OTHER STATE OR LOCAL BUILDING EXCEPT UNDER SPECIFIED CONDITIONS, AND TO PROVIDE THAT THE PROVISIONS OF THIS SECTION MAY NOT BE AMENDED OR REPEALED BY A SUBSEQUENT ACT WITHOUT A TWO-THIRDS VOTE OF EACH HOUSE OF THE GENERAL ASSEMBLY.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Title 1 of the 1976 Code is amended by adding:

"CHAPTER 10

South Carolina Heritage Act of 2000

Section 1-10-10. This chapter may be cited as the 'South Carolina Heritage Act of 2000'.

Section 1-10-20. (A) To honor and recognize the history and heritage of this State and the many contributions of its diverse citizenry, it is necessary and appropriate to codify the placement of certain symbols on the Capitol Complex and within the State House which salute the contributions and sacrifices of our constitutional history. On July 1, 2000, or thirty days after the effective date of this section, whichever occurs last, the only flags that shall fly atop the dome of the State House are the United States Flag and the South Carolina State Flag.

(B) The Infantry Battle Flag of the Confederate Army of Northern Virginia (Confederate Battle Flag) must be displayed on the State House side of the Confederate Soldiers' Monument on the State House grounds. This flag is square with a St. Andrews Cross of blue, edged with white, with thirteen equal five-pointed stars, upon a red field, with the whole banner bordered in white. The total outside measurement of the flag shall be fifty-two inches square, inclusive of the white border. The blue arms of the cross are seven and one-half inches wide and the white border around the flag proper is one and one-half inches wide. The stars are five-pointed, inscribed in a circle six inches in diameter and are uniform in size. The Confederate Battle Flag shall be flown on a flagpole approximately equal in height to and immediately adjacent to the Confederate Soldiers' Monument.

Section 1-10-30. The Infantry Battle Flag of the Confederate Army of Northern Virginia (Confederate Battle Flag) displayed on the Confederate Soldiers' Monument on the State House grounds, and any monument, marker, memorial, school, or street erected or named in honor of the Confederacy or the civil rights movement located on any municipal, county, or state property shall not be removed, changed, or renamed without the enactment of a joint resolution by a two-thirds vote of the membership of each house of the General Assembly approving same. This provision shall not apply to the maintenance and repair of the monument, marker, memorial, school, or street.

Section 1-10-40. (A) On July 1, 2000, or thirty days after the effective date of this section, whichever occurs last, the Confederate Flag (Naval Jack) must be removed from atop the State House, from the front ground floor foyer of the State House, and from the chambers of the Senate and the House of Representatives and simultaneously therewith the Confederate Battle Flag must be placed at its place at the Confederate Soldiers' Monument.

(B) The Confederate flags displayed in the respective chambers of each house of the General Assembly shall be transferred to the custody of the Department of Archives and History for presentation and display as the department shall deem appropriate.

(C) There must be erected around the Confederate Soldiers' Monument appropriate decorative iron fences to keep secure the Confederate Battle Flag.

(D) The Division of General Services of the Budget and Control Board shall replace the flag displayed at the Confederate Soldiers' Monument as necessary to avoid its being displayed in a ragged or faded condition."

SECTION 2. Section 10-1-160 of the 1976 Code is amended to read:

"Section 10-1-160. (A) The United States flag and the State flag ~~shall~~ must be displayed daily~~, except in rainy weather,~~ from a staff upon the State House, and must be displayed above the rostrum in the chambers of the House of Representatives and the Senate of this State and in the front ground floor foyer of the State House. No other flag may be displayed in these locations nor atop or within any other building owned by the State or any political subdivision thereof except in museums and parks for historical exhibits and as may be directed in each chamber of the General Assembly by the respective body that sits in that chamber; provided, that the display of a Confederate flag within the chamber of either house as prohibited by Chapter 10 of Title 1 is not permitted. The State Budget and Control Board shall purchase a suitable ~~flag~~ flags for display at the State House locations and cause it them to be displayed, the expense to be borne out of the funds provided for maintenance.

(B) The provisions of subsection (A) of this section may only be amended or repealed upon enactment of an act which has received a two-thirds vote on one of its readings in each house of the General Assembly."
SECTION 3. Except as otherwise stated, this act takes effect upon approval by the Governor.

----XX----

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