Indian artifacts and archeological resources

Update in Utah Stolen Indian Artifacts Case — Defendants’ “Expert” Allowed to Testify on Value of Objects

Matthew L.M. Fletcher

Here is an interesting development in United States v. Smith, the criminal case in Utah regarding the theft of Indian artifacts and other objects.

The defendants’ proposed expert witness (Dace Hyatt) on the value of the materials collected allegedly in violation of federal law will be allowed to testify, despite having no formal training on anthropology, archaeology, or anything else (not to mention lying in an affidavit about reviewing evidence in person when that evidence is locked away deep in the bowels of the BLM). Assuming the defendants still use this expert, cross-examination at trial will be very interesting. His testimony is that each object is valued at slightly less than $500, the jurisdictional minimum.

Here are the materials:

DCT Order on Daubert Motion

US Motion to Exclude Expert Testimony

US Second Motion to Exclude Expert Testimony

Defendants Opposition to Motion

 

Federal Court Declines to Dismiss Charges in Indian Artifact Theft Case

Matthew L.M. Fletcher

Here is the opinion on a motion to dismiss in United States v. Smith (D. Utah): US v Smith DCT Order.

An excerpt:

Based on the differences in these statutes, the Court finds the indictment is not multiplicitous. Each charge would require the government to prove an element that is not required in the others. As set forth above, ARPA requires a showing that the item is an archeological resource, that it is over 100 years old, and that its value is more than $500. Under Section 641, the government must show that the property was government property and had a value of over $1,000. Similarly, under Section 1163, the government must show the property belonged to an “Indian tribal organization” and had a value in excess of $1,000. Therefore, because each count requires proof of something the others do not, the indictment is not multiplicitous and the Motion will be denied.

However, even if the Court did find the indictment to be multiplicitous, the government is correct that the discretion in choosing which charge to pursue rests with it. In Jones, the Forest Service officers observed the defendants “digging in Indian ruins located on the federal government land.” The defendants were charged under a general theft statute covered by 18 U.S.C. § 641. The defendants sought to have the charge dismissed, arguing that Congress intended the Antiquities Act to be the only means of prosecuting that type of conduct. The Ninth Circuit rejected this argument stating, “[t]he rule we apply is straightforward: where an act violates more than one statute, the Government may elect to prosecute under either unless the congressional history indicates that Congress intended to disallow the use of the more general statute.” As a result, “[w]here the statute applies to the conduct in question and there is no affirmative evidence that Congress intended to limit the application of the more general statute, the prosecutor is free to elect to prosecute under either.” Because the Court has already found there is no clear Congressional intent, the government is not barred from bringing simultaneous charges based on the three statutes.