In a decision authored by Judge Robert Hinkle (N.D. Fla.) dated May 27 in Shanks v. Schwadron:
Shanks served as an archaeologist with the National Park Service. His supervisor, Mr. Russo, also an archaeologist, … and Mr. Shanks were the subject of an inspector general’s investigation …. Following the inquiry, the Inspector General issued a report detailing facts that are largely uncontested.
A collector approached Russo with a proposal to sell Park Service artifacts recovered from burial mounds at Tyndall Air Force Base. The record describes these as potsherds, pottery fragments found at archaeological sites. Items placed with human remains as part of a death rite are termed funerary objects.
Russo concluded that the Park Service could not acquire the collector’s items because, if, as the collector stated, they had been obtained at Tyndall, they would be considered funerary objects, whose purchase would be illegal. To simplify, the record sometimes labels these items as potsherds rather than funerary objects, without repeatedly noting any uncertainty about their true nature.
To circumvent the perceived legal barrier to purchasing these items, Russo enlisted a straw purchaser, who provided Russo a $1,000 check payable to the collector. Russo apparently planned to obtain the items for donation to the State of Florida for preservation. Russo, accompanied by his subordinate Shanks, traveled to the collector’s location, delivered the check to the collector, and took possession of the items, along with two Native American skulls. The skulls were sent to Florida, which, at the time of the inspector general’s report, was in the process of repatriating them. Meanwhile, the potsherds ended up on a shelf in Russo’s office.
The inspector general concluded Russo’s and Shanks’s actions did not violate the closest applicable federal criminal statute, 18 U.S.C. § 1170, titled “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.” 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.” 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.” …
Shanks also claims:
Plaintiff has suffered damages as a result of Defendants’ actions including, but not limited to: (a) Loss of a sixteen-year federal career, including pension and benefits, valued at approximately $2 million. (b) Loss of a university press book contract when other contributors pulled out of the project due to defamatory statements from Defendant SCHWADRON. (c) Removal from professional panels and working groups, causing reputational harm and lost opportunities. (d) Severe emotional distress and humiliation.
The court allowed Shanks’ claim to go forward:
The critical question … [is] whether the defendants’ allegedly false statement that he trafficked stolen Native American human remains, or a collection of statements that in context imply he did so, could be found to be defamatory. “Trafficking” can be defined as “[t]he act of transporting, trading, or dealing, esp. in illegal goods or people.” But a law enforcement officer does not traffic in drugs when seizing them for legitimate purposes, and a federal archaeologist does not traffic in human remains when obtaining them by proper means to have them repatriated.
It is not clear the means used here were proper, and the defendants had every right to criticize the process. That does not mean, however, that the defendants were entitled to accuse Mr. Shanks of trafficking in “stolen” human remains. Even if acquiring the remains in connection with a straw purchase of the potsherds could be labeled trafficking, and even if Mr. Shanks could be deemed a participant in that trafficking, the assertion that the remains were “stolen” adds a defamatory element.
Mr. Russo acquired the remains from a collector—PEER called him a “known looter”—and delivered them free of charge to the State of Florida for repatriation. Without more, that falls well short of trafficking in stolen human remains. Florida’s fair-report privilege does not apply if, as the complaint alleges, the defendants’ statements were not a fair description of the inspector general’s report. …
The court noted, though, that another of PEER’s statements mentioned in the Complaint, “the reference to ‘blatant desecrations,'” “was a nonactionable opinion.”
Jamie Marie Ito (Ito Law PLLC) represents Shanks.
