From Judge Robert Hinkle (N.D. Fla.) May 27 in Shanks v. Schwadron:
Shanks was an archaeologist employed at the National Park Service. His supervisor {Mr. Russo}, also an archaeologist, … and Mr. Shanks were the subject of an inspector general's investigation …. After an investigation, the inspector general issued a report that included the following facts, which are largely undisputed.
A collector approached Mr. Russo with an offer to sell the Park Service items retrieved from burial mounds on Tyndall Air Force Base. The report refers to these as potsherds, defined as pottery fragments found at archaeological sites. Items placed with human remains as part of a death rite are known as funerary objects.
Mr. Russo concluded the Park Service could not purchase the collector's items because if, as the collector said, they had been obtained at Tyndall, they would be considered funerary objects, whose purchase would be illegal. For convenience, this order sometimes refers to these items as potsherds, not funerary objects, without noting each time any uncertainty about their actual nature.
To avoid the perceived legal obstacle to purchasing these items, Mr. Russo enlisted a straw purchaser, who provided Mr. Russo a $1,000 check payable to the collector. Mr. Russo apparently intended to obtain the items to donate them to the State of Florida for preservation. Mr. Russo, accompanied by his subordinate Mr. Shanks, traveled to the collector's location, delivered the check to the collector, and took possession of the items, together with two Native American skulls. The skulls found their way to the State of Florida, which, at the time of the inspector general's report, was in the process of repatriating them. But the potsherds wound up on a shelf in Mr. Russo's office.
The inspector general concluded Mr. Russo's and Mr. Shanks's actions did not violate the most closely implicated federal criminal statute, 18 U.S.C. § 1170, which is entitled "Illegal trafficking in Native American human remains and cultural items."
Under § 1170(a), it is a crime to sell or purchase Native American human remains or to use or transport them "for sale or profit." Mr. Russo apparently purchased only the potsherds, not the skulls, and the skulls were not used or transported for sale or profit. On those facts, there was no violation of this statute.
Under § 1170(b), it is a crime to sell or purchase Native American cultural objects "obtained in violation of the Native American Grave Protection and Repatriation Act" or to use or transport such objects "for sale or profit." Mr. Russo purchased the potsherds—the straw buyer does not change this—but the inspector general was unable to establish that the collector obtained the potsherds after NAGPRA's 1990 enactment. If the collector obtained them earlier, there was no violation of § 1170(b).
Moreover, the collector purportedly had a permit to excavate at Tyndall, and while the absence of a record at Tyndall verifying this would ordinarily refute the claim, many of Tyndall's records were destroyed in Hurricane Michael. If the collector legally obtained the items, even after NAGPRA's enactment, their purchase by Mr. Russo was not a violation of § 1170(b). And in any event, the inspector general's report directly implicated only Mr. Russo, not Mr. Shanks, in purchasing the items. Neither Mr. Russo nor Mr. Shanks used or transported the objects for sale or profit….
[Defendant] Ms. Schwadron … is an archaeologist who worked for the National Parks Service and may have provided the information that triggered the inspector general's investigation. The second defendant, Public Employees for Environmental Responsibility ("PEER"), is a nonprofit corporation that, according to the complaint, "supports current and former public employees who seek a higher standard of environmental ethics and scientific integrity within their agencies … by defending whistleblowers, shining the light on improper or illegal government actions, working to improve laws and regulations, and supporting the work of other organizations." …
Shanks alleged that defendants stated that he "trafficked stolen Native American human remains" and implied that he "committed criminal acts involving Native American human remains." …
