Archaeologies: Journal of the World Archaeological Congress (© 2017)

DOI 10.1007/s11759-017-9308-8

Archaeology as State Heritage

RESEARCH
Crime
Richard M. Hutchings, Institute for Critical Heritage and Tourism,
330 Spruce Avenue, Gabriola Island, BC V0R 1X1, Canada
E-mail: rmhutchings@icht.ca
Marina La Salle, Department of Anthropology, Vancouver Island
University, 900 Fifth Street, Nanaimo, BC V9R 5S5, Canada
E-mail: marina.lasalle@viu.ca

ABSTRACT
________________________________________________________________

North American archaeology is evaluated in light of state and heritage crime

theory. When analyzed with preexisting typologies, the practice is shown to
meet the threshold for state-sanctioned heritage crime. This study also
demonstrates how current models of heritage crime do not adequately
account for (1) the pivotal role states and state-sanctioned heritage experts
play in committing heritage crime and (2) the implications of heritage crime
for living descendant communities, not just physical artifacts and buildings.
Typically thought of as crime against the state, seeing a state heritage regime
as organized heritage crime opens the door to a host of theoretical and
practical possibilities, including legal remedies for affected communities.
Despite these opportunities, major impediments to meaningful change exist.
________________________________________________________________

Résumé: L’archéologie nord-américaine est évaluée à la lumière de la théorie

des crimes contre l’État et le patrimoine. Lorsqu’elle est analysée à l’aide de
typologies préexistantes, la pratique semble respecter le seuil en vigueur pour les
crimes contre le patrimoine sanctionnés par l’État. La présente étude démontre
aussi comment les modèles actuels d’examen des crimes contre le patrimoine ne
tiennent pas adéquatement compte (1) du rôle central que jouent les États et les
experts en patrimoine sanctionnés par l’État en commettant des crimes contre le
patrimoine; et (2) des implications que les crimes contre le patrimoine ont sur les
communautés parentes vivantes et pas seulement sur les artefacts et bâtiments
ARCHAEOLOGIES

physiques. Généralement considérés comme des crimes contre l’État, le fait

d’associer un régime d’État commettant des crimes contre le patrimoine à un
réseau de crimes organisés ouvre la voie à une gamme de possibilités théoriques
et pratiques, dont l’accès des communautés touchées à des recours en justice.

© 2017 World Archaeological Congress

 RICHARD M. HUTCHINGS, MARINA LA SALLE

Plusieurs obstacles d’envergure au changement existent pourtant malgré ces

possibilités.
________________________________________________________________

Resumen: La arqueologı́a norteamericana se evalúa a la luz de la teorı́a del

estado y del crimen contra el patrimonio. Cuando se analizan con las
tipologı́as preexistentes, se muestra que la práctica satisface el umbral del
crimen contra el patrimonio sancionado por el estado. El presente estudio
demuestra también cómo los modelos actuales de crimen contra el
patrimonio no explican de manera adecuada (1) el papel crucial que los
estados y los expertos en patrimonio sancionados por el estado
desempeñan en la comisión de crı́menes contra el patrimonio y (2) las
implicaciones de los crı́menes contra el patrimonio para las comunidades de
descendientes vivos, no sólo de artefactos fı́sicos y edificios. Visto
normalmente como un crimen contra el estado, ver un régimen del
patrimonio estatal como un crimen organizado contra el patrimonio abre la
puerta a un montón de posibilidades teóricas y prácticas, incluidos
remedios legales para las comunidades afectadas. A pesar de estas
oportunidades, existen impedimentos de importancia para un cambio
significativo.
_______________________________________________________________________________________________________________________________________

KEY WORDS

North American archaeology, Cultural resource management, State crime,

Heritage crime, Heritocide
_______________________________________________________________________________________________________________________________________

Introduction

This theoretical refiguring of North American archaeology is grounded in

the fields of state crime studies (Michalowski et al. 2010; Rothe and Kau-
zlarich 2014a; Watts 2016) and heritage crime studies (Grove 2013; Grove
and Thomas 2014a) and builds on our previous work on the subject
(Hutchings and La Salle 2015a, 2015b). We began “Why Archaeologists
Misrepresent their Practice” (2015b:S11) with this useful point of departure
from Erich Fromm and the field of critical criminology:

In his 1930 essay ‘The State as Educator,’ Fromm posited that ‘if…both the
present criminal justice system and even the modern penal system…are inef-
fective and unsuitable for the attainment of their own goals, then there must
be other reasons as to why society holds on to these ineffective measures with
so much determination’ (Fromm 2000 [1930]:124).
 Archaeology as State Heritage Crime

Reweaving this thread, we asked:

If archaeology has so little effect on democratizing heritage, and if this is well

known to those who have experience in the discipline (Smith 2004; King
2009), then why do archaeologists support their practice’s ‘ineffective mea-
sures with so much determination?’

Our position then, as now, it that archaeology—a technology of govern-

ment designed to control Indigenous heritage thus living Indigenous peo-
ple and their resources (Smith 2004)—is working as designed.
Archaeologists and other heritage experts actively “whitewash” (King 2009)
this process to hide their collusion, thus allowing the larger corporate-state
project to continue unabated (Hutchings and La Salle 2015a; La Salle and
Hutchings 2016).
We only recently became aware of the field of heritage crime studies,
but quickly saw its potential for not just understanding but also redressing
the harms committed—past and present—by North American archaeology
against Indigenous peoples and their lands. However, as Louise Grove
(2013:243) writes, “Repairing damage to heritage assets caused by criminal
activity is at best expensive and time-consuming. At worst, it may be
impossible. The true value of what is stolen may be immeasurable.”
We believe those studying the relationship between state heritage
regimes (Hutchings and Dent, this issue) and the global heritage crisis
(Hutchings 2017) have much to gain from considering heritage crime and
heritocide. We begin by focusing on heritage crime, looking at definitions
and typologies. We then do the same for state crime. Our discussion
focuses on how these ideas are observed in contemporary archaeology, par-
ticularly as practiced in North America.

Heritage Crime

Federico Lenzerini wrote, ‘Intangible cultural heritage, which comprises all

immaterial manifestations of culture, represents the variety of living heritage
of humanity as well as the most important vehicle of cultural diversity.’
Despite its undeniable and universal value, intangible cultural heritage is
being destroyed on an active and worldwide basis. Criminalizing the destruc-
tion of [intangible cultural heritage] is one way that such heritage can be
safeguarded. Whitney Carter

Heritage crime studies is a nascent but rapidly growing subfield of crim-

inology and heritage studies and aspect of resource or heritage manage-
ment, particularly in western Europe where the concept took root (English
 RICHARD M. HUTCHINGS, MARINA LA SALLE

Heritage 2012; Grove 2013; Grove and Thomas 2014a; Historic England
2017; Hough and Beckford 2012; Mackenzie and Green 2009). Despite its
popularity, use of the term in North American literature is virtually nonex-
istent. An internet search conduced on January 12, 2017, of the terms
“United States” and “heritage crime” produced one relevant result (ie.,
Shelbourn 2014). The same search conducted for Canada produced no rel-
evant results.
In an early study of cultural heritage crime in the Nordic region, Korsell
et al. (2006:7) defined heritage crime as

theft of cultural objects from preservers, such as museums and churches, and
from dealers, such as antique shops and auction houses. Cultural heritage
crime also includes the illegal movement/export of protected cultural objects
that even though they are legally acquired, may not be taken out of the
country without a permit. The illegal import of these objects from other
countries also constitutes cultural heritage crime. The looting of ancient
monuments and protected shipwrecks is also included.

With an emphasis on theft and looting, Korsell et al. (2006:7) asked

“What types of offenders steal cultural objects and what are their motives?”
Based on their analysis,

Several different types of thieves steal cultural objects: thieves who sponta-
neously exploit an opportunity, addicts who steal whatever they can find,
professional thieves who steal whatever they think might be valuable, thieves
who work on commission and thieves with knowledge of cultural objects. In
the questionnaire study, the victimized preservers and dealers say that the
most common motive is financial gain.

Based on the Nordic typology, museums, libraries, antique dealers and

second-hand bookshops were found to be most affected by heritage crime.
An underestimated category of offenders is employees or “insiders” of these
institutions (Korsell et al. 2006:7), a crucial issue we return to.
Thomas and Grove (2014:2) see the Nordic definition as narrow thus
restrictive; they align their work instead with a broader thus arguably more
inclusive English Heritage definition where heritage crime is deemed “any
offence which harms the value of England’s heritage assets” (see Coombes
et al. 2012; English Heritage 2017). For Thomas and Grove, this definition
reflects more closely their belief “that more offences than just those con-
nected to theft [and] import and export negatively impact on heritage”
(2014:2). Indeed, as their (2014:1) study demonstrates,

a vast range of criminal activity, from theft and vandalism, to contraventions

of planning and development regulations by corporations and others, as well
 Archaeology as State Heritage Crime

as the destructive impact of the search for saleable artefacts, can and does
have an impact on cultural heritage and the historic environment. Recogniz-
ing this, there is a growing movement to categorize certain crimes as heritage
crimes.

Nevertheless, they contend (2014:5), “It is clear…that heritage and crime

are both diverse terms and to differing extents are affected by national con-
vention and legislature. This can mean that an activity affecting heritage
that is under certain conditions legal in one country can become illegal by
simply moving the activity to another jurisdiction.”
Taking this definitional and geographical diversity into account, Thomas
and Grove (2014:3) define heritage crime as “any activity that is prohibited
by law that causes loss of, damage to, or other harm to places, monuments
or objects considered to be heritage.”
A 2011 study commissioned by English Heritage (Coombes et al. 2012;
English Heritage 2012) found more than 200 crimes a day—totaling 75,000
crimes a year—are being committed against Britain’s historic sites,
“prompting fears that ‘irreversible harm’ is being done to the country’s
heritage” (Hough and Beckford 2012:n.p.). The report notes that while 200
heritage crimes a day may seem high, it “is not far removed from the vic-
timisation rate for the general population reported in the British Crime
Surveys” (English Heritage 2012:2); indeed, “[h]eritage assets are not neces-
sarily being targeted over other places, save perhaps for their valuable
materials and artefacts.” The authors identify antisocial behavior (ASBO)
as the “single most common heritage crime concern for scheduled monu-
ments” as it “deters enjoyment and investment in heritage assets” (English
Heritage 2012:2; see also Association of Chief Police Officers 2013;
Coombes et al. 2012).
Grove and Thomas (2014b) consider the future of heritage crime
research in the final chapter of their edited volume Heritage Crime: Pro-
gress, Prospects and Prevention. We note, however, some limitations with
how heritage crime has been conceived to date. In particular, there is a
strong emphasis on physical heritage sites and tangible objects at the
expense of recognizing the intangible qualities of heritage that make those
places and objects meaningful (Carter 2016; Lenzerini 2011). Additionally,
and as we focus on below, there is limited discussion of the impacts of her-
itage crime on victims or the role of the state itself in committing heritage
crimes.
Indeed, as Grove and Thomas (2014b:226) point out, a key question
remains “about the complicity of authorities in the issues of exploitation of
cultural heritage—whether this is wilful or neglectful; stemming from igno-
rance or a different set of priorities; historical or current”. This point about
“authorities” and “exploitation” is vital and the subject of our discussion
 RICHARD M. HUTCHINGS, MARINA LA SALLE

of state-sanctioned heritage crime. We begin by contemplating “state

crime.”

State Crime
Focused academic study of state crime predates heritage crime studies by a
number of decades (Chambliss 1989; see also Barak 1991; Friedrichs 1998;
Green and Ward 2004; Michalowski and Kramer 2007; Ross and Rothe
2008; Rothe 2009). Nevertheless, the field has transformed significantly in
recent years (Rothe and Mullins 2011; Watts 2016), particularly in how it
approaches empire (Iadicola 2010), civilization (Watts 2016), globalization
(Chambliss et al. 2010), and the victims of state crime (Rothe and Kau-
zlarich 2014a; Watts 2016).
Like the definitional debate in heritage crime studies (Thomas and
Grove 2014:4–5), what constitutes state crime is strongly influenced by
how the terms “state” and “crime” are defined (Michalowski 2010). This
affects not just what is deemed state crime but also who the victims of
state crime are. As Rothe and Kauzlarich (2014b:8) explain,

Defining a victim of state crime is dependent upon who is doing the defin-
ing. A victim is culturally defined and a person’s social reality is subjective—
one may or may not self-label as victim where another, in the same circum-
stances, may. This is further compounded when the labels are externally
decided and applied.

The definitional debate has another component worth considering. Ray-

mond Michalowski (2010:17) outlines three ways to view crime itself:
juridical, where a law is broken; deviance, where the activity violates social
norms; and social injury, where the action results in harm of a gravity to
be on par with crime. Rothe and Kauzlarich (2014b:6–7) describe the legal-
istic or juridical approach, which

includes a state’s own domestic law as well as the broader umbrella of inter-
national public law (customary law, treaties, charters, and the newly emerged
criminal law) (Rothe 2011). This framework includes other approaches and
standards such as human rights and social and economic harms.

Conversely (Rothe and Kauzlarich 2014b:7), the social injury approach

begins with the realization that crime has no ontological reality and it is sub-
jectively defined by states within the context of broader issues of power, and
political and economic interests. In the case of crimes of the powerful, harm-
ful activities are rarely defined as criminal. Many acts and behaviors that
 Archaeology as State Heritage Crime

cause serious harm are not part of the domestic or international criminal
law, thus being omitted by those using a stricter rubric such as the legalistic
standard. Those advocating this framework suggest that harm can be defined
as physical, financial and economical, psychological and emotional, sexual,
and cultural.

Michalowski (2010:16–17) observes that juridical meaning is the most

common approach to crime; however, it is perhaps the most problematic.
First, the existence of state laws prohibiting heritage crime is not enough
to deter it: “If developers and others can, in effect, buy their way out of
the sanctions placed on them for damaging heritage, the regulations also
become meaningless” (Grove and Thomas 2014b:226). Second, “states
rarely criminalize or prosecute wrongful acts undertaken to facilitate their
own interests” (Michalowski 2010:16–17).
To address this, international treaties such as the United Nations
Universal Declaration of Human Rights are viable alternatives to legal
prosecution (Centre for International Governance Innovation [CIGI] 2014;
Williams 2013) insofar as they provide an internationally recognized vision
of social norms, the violation of which is seen as criminal. Unfortunately,
as Robert Williams (2013) describes, while the offending state may be pub-
licly shamed, there is little recourse to ensure restitution for the victims.
Indeed, some states have admitted they view international treaties, such as
the United Nations Declaration on the Rights of Indigenous Peoples
(UNDRIP), as merely “aspirational” (CIGI 2014).

State Heritage Crime in North America

We suggest the definition of heritage crime needs to be broad and include
juridical, deviance, and social injury concepts of crime. With this frame-
work in mind, we argue the most frequent and grave perpetrator of her-
itage crime is the state itself. Below we outline a number of ways states are
guilty of heritage crime in colonized contexts such as Canada, the United
States, Australia, New Zealand, and South America.
Our focus here is on state-sanctioned heritage crime in the form of cul-
tural resource management (CRM), which constitutes upwards of 90% of
archaeology undertaken in North America (Birch 2006:14; Ferris and
Welch 2015:74; Green and Doershuk 1998:122), in some areas as much as
97% (La Salle and Hutchings 2012:10). CRM is governed by state permit-
ting processes designed to mitigate development impacts to heritage sites.
As such, archaeology/CRM is itself a state institution.
However, CRM has been largely ineffective at protecting heritage sites,
with one regional study demonstrating over 75% of known sites destroyed
 RICHARD M. HUTCHINGS, MARINA LA SALLE

through development (Hutchings 2017). This figure approximates global

estimates, notably the 2005 ICOMOS study “Threats to World Heritage
Sites 1994–2004,” which looked at 614 heritage landscapes worldwide and
identified the main threats to be management failure and development.
Specifically,

• 95% of sites in Africa are affected by management deficiencies; 88% in

Asia/Pacific; 77% in Latin America; 77% in Arab States, and 41% in
Europe.
• 67% of Arab States are affected by development; 49% in Europe and
North America; 47% in Latin America; 40% in Asia Pacific, and 42%
in Africa.

In this way, CRM can be seen as facilitating development by clearing

heritage from the landscape, creating a clean slate upon which to build
(Hutchings and La Salle 2015a).
In this process, the state is responsible for permitting and thereby mak-
ing legal the destruction of heritage sites. In colonizing states, this dynamic
takes on added significance as the heritage sites being destroyed are largely
Indigenous, representing the record of Aboriginal Rights and Title as prac-
ticed over thousands of years (Klimko and Wright 2000:93). CRM is thus
part of the state-sanctioned erasure of the historical record of people whose
presence undermines the legitimacy of the state itself. Below, we discuss
how this constitutes state heritage crime by juridical, deviance, and social
injury standards.

Juridical
A solely juridical approach to assessing state heritage crime would immedi-
ately falter, for most states have legislation designed to manage heritage
and oversee the CRM process (Pokotylo and Mason 2010). By definition,
the state is not guilty of a crime if it acts within the boundaries of its own
laws. Therefore, in the case of archaeology, only where a state permit has
not been granted and heritage destruction has occurred can the concept of
juridical heritage crime be introduced.
However, the inclusion of international treaties changes this dynamic,
for it holds the state accountable to something larger than its own domes-
tic policies (Ahmed et al. 2008; Battiste and Youngblood Henderson 2000).
In colonized contexts, such as North America, the most important interna-
tional treaty is the United Nations Declaration on the Rights of Indigenous
Peoples (United Nations 2008).
Therein, Article 11 affirms the rights of Indigenous peoples “to main-
tain, protect and develop the past, present and future manifestations of
 Archaeology as State Heritage Crime

their cultures, such as archaeological and historical sites” and artifacts. It

calls on states to provide redress for Indigenous “cultural, intellectual, reli-
gious and spiritual property taken without their free, prior and informed
consent or in violation of their laws, traditions and customs.”
Three concepts are central here, the first being free, prior, and informed
consent (FPIC). In CRM, shades of this idea are implied loosely in the
requirement to “consult” Indigenous groups before archaeology and devel-
opment proceed (La Salle 2013). However, most CRM occurs in jurisdic-
tions with weak consultation requirements (Dent 2016), in some places
only requiring the affected group be “contacted and informed” (Klimko
and Wright 2000:92), with silence interpreted as consent (Power 2017;
Watkins 2005). Such practice common in state-sanctioned CRM does not
meet the standard for FPIC in UNDRIP; in Canada, it is also inadequate
to address the duty of the government to consult and accommodate
Indigenous groups where their rights may be infringed through develop-
ment (La Salle 2013).
The second concept from Article 11 is the affirmed right of Indigenous
groups to control their heritage however they see fit. This effectively
requires archaeologists to prioritize Indigenous interests that may be in
direct violation of state law, which therefore puts the archaeologist at legal
and financial risk. There is thus no legal mechanism for archaeologists to
meet this requirement of UNDRIP so long as they act within state law.
Developments in case law concerning government responsibilities to
Aboriginal peoples are potentially one avenue whereby the protection of
Indigenous heritage sites in line with their own cultural protocols could
become a legal requirement. For example, in Canada, the Constitution Act
(Canada 1982, Sect. 35[1]) recognizes and affirms “existing aboriginal and
treaty rights”; combined with UNDRIP’s stipulation of those rights to
include control over archaeological sites, the Canadian federal government
has a constitutional duty as yet unrealized (see Bell 1992 for this discussion
in light of moveable cultural property).

Juridical/Deviance
The third key concept stemming from UNDRIP’s Article 11 is the state’s
obligation to consider Indigenous laws, traditions, and customs in relation
to Indigenous heritage. This is reiterated in Article 27 that stipulates states
will give “due recognition to Indigenous Peoples’ laws, traditions, customs
and land tenure systems” (United Nations 2008).
Aboriginal law, like all cultural protocol, is vast and complex (Figure 1),
and there is substantial literature outlining concepts of Aboriginal law gener-
ally (eg., Asch 2014; Borrows 2002; Jones 2017; Napoleon 2009; Secher
2014) and in relation to heritage (Battiste and Youngblood Henderson 2000;
 RICHARD M. HUTCHINGS, MARINA LA SALLE

Bell and Napoleon 2008; Bell and Paterson 2008). As such, heritage crime
that violates Aboriginal law can be understood as a form of juridical crime.
However, because Aboriginal law is suppressed in most colonized con-
texts by state law (Figure 1) (Barker et al. 2016; Rollo 2014), heritage crime
may also be considered a deviant form of crime—crime that contravenes
accepted cultural norms, in this case Aboriginal cultural norms.
For many Indigenous groups, a foundational law is one of connection,
belonging, and stewardship of culture and land (eg., Berkes 2008; Ross
et al. 2011). UNDRIP also articulates this obligation in Article 26, noting
“Indigenous peoples have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or
acquired.”
In North America, state-sanctioned archaeology/CRM permits the physi-
cal destruction of Indigenous heritage sites and cemeteries (Mapes 2009;
Stapp and Longenecker 2009). Indeed, it is significant that most archaeol-
ogy/CRM in North America affects Indigenous heritage sites; in some
places, laws and policies are designed to explicitly manage Indigenous her-
itage differently (Beaudoin 2016; Hutchings 2015, 2017). This results in,
for example, Indigenous burial grounds being classified as archaeological
sites worthy of scientific study rather than as cemeteries deserving of
respect and protection.
Many Indigenous nations have laws and protocols prohibiting this kind
of activity, particularly in the context of violating sacred sites and ancestral
remains (Echohawk and Echohawk 1993; Milholland 2008). Because
archaeologists commit these acts on a daily basis within a legal permitting
structure outlined and enforced by the state, archaeology is itself a state
heritage crime. It is both a violation of Aboriginal law and a crime of
deviance because it contravenes Indigenous values and cultural norms.
Compounded by the fact that most archaeologists managing Indigenous
heritage are not themselves Indigenous, the process constitutes heritage
racism. By instead privileging Aboriginal perspectives and connections to
place, the criminal nature of archaeology as state-sanctioned heritage crime
becomes clear.

Juridical/Deviance/Social Injury
To consider heritage crime committed by the state, one must step outside
of state laws, values, and policies and evaluate the behavior of the state
against other baselines. UNDRIP and Aboriginal law are two ways of doing
this. A third is to consider the impacts of state actions on Indigenous peo-
ples as criminal in the sense of violence causing social injury, which
includes social, psychological, spiritual, and emotional harms among others
 Archaeology as State Heritage Crime

Figure 1. The state controls what is admissible as legal evidence and is defined to a
large degree by its ability to not just change the rule of law but disregard it entirely
(Agamben 2005). This issue of power and admissibility—and the pivotal role of sci-
ence in that relationship—is captured in Don Monet’s 1987 illustration “The Law vs.
Ayook: Written vs. Oral History,” which shows an Indigenous witness, Gitksan elder
Antgulilibix (Mary Johnson), singing her testimony, to which The Court responded:
“This is a trial, not a performance” (Monet and Wilson 1992:14–16). “Ayook” is the
Gitksan term for “law, custom, or precedent” (Napoleon 2009:xi). Reprinted with per-
mission of Don Monet
 RICHARD M. HUTCHINGS, MARINA LA SALLE

(Steeves, this issue). In this light, the focus is not on intentions but conse-
quences (Michalowski 2010:21).
Writing about Aboriginal Australia, social injury caused by the loss of her-
itage landscapes is framed as solastalgia—an inconsolable loss of place and
belonging (Albrecht et al. 2007; Sutton et al. 2013). Similarly, Grove (2013)
coined the term heritocide to capture the profound loss experienced by descen-
dant communities when their cultural heritage is permanently destroyed. Such
profound loss leads to feelings of deprivation and isolation, where “family life
is disrupted, previous social controls are often lost, and many indicators of
social anomie, such as alcoholism, crime, delinquency, suicide, emotional dis-
orders, and despair may increase” (Bodley 2014:185–6; see also Alexander
2008). Indeed, the loss of belonging and connection (ie., dislocation, displace-
ment) has recently been cited for the alarming increase in suicides and suicide
attempts by Indigenous youth in North America and elsewhere (Aboriginal
Healing Foundation 2007; Lawson-Te Aho and Lui 2015).
The social harms inflicted through archaeology/CRM are situated in the
context of colonization, forced assimilation, and genocide (Cavanagh and
Veracine 2016), because archaeologists literally and figuratively are digging
up the past (McNiven and Russell 2005). Heritage crime is therefore personal
and emotional. Several case studies in recent years illustrate this point:

Tse-Whit-Zen Village, Washington State, USA: In 2003, hundreds of Indige-

nous burials in a cemetery were legally excavated by archaeologists to accom-
modate a major construction project. The result was upheaval and distress
not just in the affected Indigenous community but also the surrounding
community (Mapes 2009). The project location was eventually abandoned;
costs were over US $85 M (Stapp and Longenecker 2009).

c̓əsnaʔəm/Marpole Village, British Columbia, Canada: In 2012, the Mus-

queam Nation staged a protest and vigil for months after human remains
were legally excavated from a registered archaeological site by archaeologists
in advance of a condominium development (Musqueam 2012). The project
was eventually abandoned and the Musqueam Nation purchased the land.

Standing Rock, North Dakota, USA: In 2015, Indigenous groups began

protesting a state-approved oil pipeline being constructed through an area of
significant natural and cultural heritage value (Horn 2016). The standoff over
the US $3.8B pipeline has gone on for almost a year with military involve-
ment, international media coverage, and intense scrutiny by the United
Nations (John 2016). The current position of the government is “that con-
struction and operation of lawfully permitted pipeline infrastructure serve
the national interest,” despite Indigenous claims that “[t]he existing pipeline
route risks infringing on our treaty rights, contaminating our water and the
water of 17 million Americans downstream” (Epstein 2017).
 Archaeology as State Heritage Crime

Site-C Dam, British Columbia, Canada: In 2015, the construction of a mega-

dam by a provincial government corporation was approved by the state
despite Indigenous protest (DeSmog Canada 2017). The most expensive pro-
ject in the province’s history, the CAN $88B hydroelectric dam will result in
the loss of hundreds of archaeological sites and has been called a human
rights violation by Amnesty International (2016). The current goal of the
government is to push construction past the “point of no return” (DeSmog
Canada 2017; see esp. Gilchrist 2017).

The dynamic of colonization that frames and defines the social impacts
of archaeology is central in considering state heritage crime. Indeed, the
World Archaeological Congress (WAC 2013) recently passed a resolution
declaring “It is unethical for Professional Archaeologists and academic
institutions to conduct professional archaeological work and excavations in
occupied areas possessed by force.” This resolution highlights the power
dynamic of state occupation that is established in colonized places like
Canada and the United States and calls into question the ethics of pursing
archaeological inquiry where occupied communities are not afforded free,
prior, informed consent.

Conclusion
This study set out to apply state and heritage crime theory to North Amer-
ican archaeology. We value the concept of heritage crime for its recogni-
tion of heritage as something that should be protected from harm. We also
consider crime an appropriate way to characterize actions against heritage,
and see the state as playing a central role in this dynamic.
As we have demonstrated in our application of these concepts, there are
a number of ways that state-sanctioned archaeology is criminal: it contra-
venes international treaties, violates Aboriginal law and custom, and causes
significant social harm to the communities connected to the heritage at
stake. In colonized contexts such as North America, such state heritage
crimes are committed on a daily basis and constitute violence against
Indigenous peoples. Yet, this should not surprise anyone: state heritage
crime has been part of the agenda of assimilation and genocide since colo-
nization (Barker et al. 2016; Battiste and Youngblood Henderson 2000;
Bodley 2014; McNiven and Russell 2005; Maybury-Lewis 2002; Smith 2004;
The Council of the Red Nation 2015).
Article 43 of UNDRIP states the rights affirmed therein “constitute the
minimum standards for the survival, dignity and well-being of the Indige-
nous peoples of the world.” The minimum standard, then, necessary for
the survival of Indigenous peoples is control over their heritage and lands in
 RICHARD M. HUTCHINGS, MARINA LA SALLE

accordance with their laws and customs. Yet this continues to be blocked by
states like Canada, who argue Aboriginal laws are not really laws and
UNDRIP is not legally binding (eg., Hupacasath First Nation v. Canada
2013).
States are committing heritage crimes against the Indigenous peoples
whose lands they continue to occupy by force. However, proving heritage
crime has been committed by the state is difficult given that the state alone
controls what does and does not count as “heritage,” “crime,” and “evi-
dence,” and at any moment can change the rules (Agamben 2005). Com-
pounding this is the fact that heritage crime is often a slow process,
unfolding over decades and longer, making its harms difficult to witness
and document (Hutchings 2017). Regardless: the legality of heritage crime
in the eyes of the state does not make its impact on Indigenous communi-
ties any less criminal.
As such, we believe heritage crime studies would benefit from consider-
ing definitions of crime beyond juridical, which is inherently limiting as it
does not allow for “other” cultural laws and protocols (Williams 2012).
Deviance and social harm definitions, however, enable a victim-centered
approach (Rothe and Kauzlarich 2014a) where crime is evaluated by its
impact rather than its intent. State-as-perpetrator is an essential considera-
tion in order to fully explore what heritage crime is and who is capable of
committing it (Brosché et al. 2017; Kalman 2017).
Finally, we emphasize that heritage crime is not simply crime against
heritage, tangible, or intangible, but crime against people. Our hope is that
states and their agents will be held accountable for heritage crimes perpe-
trated against Indigenous peoples, in North America and beyond.

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