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[Solomon]

Bart
As I am entirely ignorant of these matters, I think it could be helpful to examine your view of treasure hunting, or metal detecting in the USA.

Keep it to yourself

1. Here in the US, that sort of thinking is born out of necessity. The laws re: treasure trove is ambiguous at best, or non-existent.

2. Many stories exist of found treasure being turned in because someone in authority said they it must be, and the finder is out of the picture entirely with nothing to show for it. Worse, the treasure itself  'disappears', there is no 'official' report, record, or evidence for it, and the posessor tells the finder to 'prove' it.

3. States already have laws on the books regarding trove, but that is only for finds on state land.

4. The Federal Gov't owns 90% * (*citation needed) of the land in western states, and they also have laws regarding trove and artifacts found on land under their authority.

5. Even if you take the treasure home, and be fortunate enough to find a way to sell it to get a good price, and you shoot your mouth off about it, there is an excellent chance that your doors will be kicked in, your treasure, in whatever current form, will disappear, AND,  some, many, or all, of the rest of your posessions will be confiscated with no hope of you ever getting them back.

My suggestion is that we look at what state and federal laws there are, how they are implemented, and what the views may be of the various relevant authorities.

Solomon

[Solomon]

I would like to start this with something really simple.

Does all land in the USA have a legal owner?

If all land - and this includes the shore and seabed - does have an owner, then would not the taking of something without the permission of the legal owner be theft?

Solomon

[Solomon]

I have noticed that many of the websites selling metal detectors offer guideline on where to search. Here is one from the USA:

Where To Use Your Metal Detector In The U.S.
National Forest and Federal Lands ? Metal detecting is allowed only by special permit acquired from the federal government. Each area has a district office.
Corps of Engineers, Lakes, Shorelines and Lands ? Permission has been granted only on predisturbed sites, such as beaches and attached swimming areas. New Corps lakes and lands must be okayed by the main office of the Army Corps of Engineers. Each area has a district office.
State Parks and Lands ? Some state parks are open to metal detecting, but some are not. Always check with the park ranger before attempting to use your detector.
Bureau of Land Management (BLM) Lands ? Some areas are open for metal detecting, and some are not. Always check with the district office.
City or County Park Lands ? Most are open to metal detecting unless notice is given by a sign or city ordinance. When in doubt, always check with the City?s Parks and Recreation Department.
Public School Grounds?Most are open to metal detecting unless notice is given by a sign, city ordinance, law enforcement official, or school employee. You should always check with the school office first.
Privately Owned Lands (Private Property) ? Permission is required and it is always best to have the permission in writing.
Historically Marked Lands or Sites ? Metal detecting is not allowed. Don?t even think about it.

This seems to cover all lands other than the seabed. Does this not suffice as a clear and concise guide?

Solomon

[ole.Grubstake]

Thankyou for the info, some of it I knew and some I did not. I will work on something about the book and get it to you. Busy right now with some articles for Last Treasure and W&E Treasure Magazines. I am also doing a dive on the wreck site, weather permitting this weekend.

[Solomon]

Thankyou for the info, some of it I knew and some I did not. I will work on something about the book and get it to you. Busy right now with some articles for Last Treasure and W&E Treasure Magazines. I am also doing a dive on the wreck site, weather permitting this weekend.

I look forward to that and good luck with the diving, especially as the water is getting cold, now.

Solomon

[Solomon]

Time Crime:  protecting the past in the United States
Robert Hicks
Crime Prevention and Law Enforcement Services
Commonwealth of Virginia
USA

Slack Farm in rural Union County, Kentucky, was known to contain beneath its ploughed soil an important Native American village, a community of wattle and daub houses that, between 1300 and 500 years ago at the confluence of the Wabash and Ohio rivers, supported acres of maize, beans, and squash throughout the floodplain. Although relic hunters visited the site, the Slack family, who had owned the farm for generations, prohibited relic hunting.

But succeeding owners did allow it. In the late 1980s, several men paid the new landowner $10,000 (about ?6500) to lease digging rights between planting seasons. The men sought Native American artefacts attractive enough to sell profitably and to obtain them they bulldozed the site. Their digging pushed aside centuries of a people?s history ? their tools, potsherds, hearths, and houses ? while leaving modern debris, particularly soda and beer cans, among the artefacts. Significantly, the men disturbed or destroyed around 600 graves.[1] Aerial views of the bulldozed site, which aired on national television, showed a pockmarked landscape described by many as resembling a World War I battlefield.

Kentuckians were most disturbed by the desecration of graves but they were also disturbed by the inability of Kentucky law to cope with the damage and theft. The men could only be charged under state law with ?desecration of a venerated object?, a misdemeanour. Federal law, owing to the Archeological Resources Protection Act (ARPA), managed felony indictments through its interstate commerce provision (discussed below). This incident triggered a legislative change: as a result of Slack Farm, state law was amended to recognize grave desecration as a felony, a crime punishable by imprisonment in a state penitentiary. Each state has its own criminal laws which vary across the United States in the degree to which they protect the past. In recent years, however, the United States government has created laws that for the first time offer enforcement teeth to heritage protection.
Who are the looters?

Relic-hunting has been and continues to be a vigorous pastime for some and a commercial enterprise for others. Interest in popular history has soared in the United States. Local history has become a do-it-yourself industry: people untrained in academic history search through local records to construct their genealogies. They collect rock albums, Victorian mourning jewellery, and salt and pepper shakers, thus creating a multi-million-dollar market for objects variously described as historic, antique, or merely nostalgic. The high prices attached to some artefacts on the commercial market inevitably invite criminality.

People who illegally hunt relics ? the looters ? display a range of motivations but a new class of entrepreneur has appeared, the investor. The investor has no particular interest in history but sees artefacts solely as commodities that can be bought and sold for a profit (Table 1). Law-enforcement authorities maintain that collecting and investing interests outside the United States, notably in Germany and Japan, have fuelled looting particularly for Native American artefacts. Germans and Japanese buy approximately $20 million (?13 million) in Native American artefacts yearly; Civil War belt buckles fetch over $10,000; a Native American pot from the southwest United States sells for $400,000 (?270,000). ?If it?s old, it can be sold.?[2] Internet auctions pose a new threat: millions of artefacts, some advertised as illegally obtained, sell daily, attesting to a burgeoning market. The local looter can sell to a world-wide audience.

Table 1:
Monetary value of artefacts. The American Civil War figures compare the highest prices paid for the excavated artefacts in the listed categories for 1988 and 1995. (Source: various editions of Nancy Dearing Rossbacher (ed.), The Civil War Collector?s Price Guide, Virginia, Orange.) The prices given for Native American artefacts represent the highest prices known to have been paid for the listed items. (Source: federal law-enforcement officials.)

1. Civil War artefacts
(Highest known price paid per piece; all items are ?dug?.)

Artefact
                                                          1888        1995
Plates and buckles                    $2600   $13,500
Canteens                                       $2500   $4500
Cap, cartridge, pistol boxes  $1300   $9500
Knives                                             $450   $6000
Revolvers                                      $450   $45,000
Bullets                                              $130   $250+
Buttons                                            $4000

2. Native American artefacts
Pottery                                  $400,000
Baskets                                  $180,000
Carved stone objects       $15,000
Rare or unusual points    $10,000

In the United States, looting has afflicted all federal properties, particularly national parks and forests. Federal law enforcers, though, are handicapped in that they are spread thin. One officer in the national parks may patrol millions of acres. As a result, much looting goes undetected and unpunished. A recent handbook on criminal investigation states:

Archeological resources are nonrenewable: when they are looted or vandalized, the information they contain is lost forever. The looting of archeological sites in the United States is happening on a vast scale. Stated bluntly, part of our history has been, and continues to be, stolen.[3]

The nature of looting in the United States resembles that of many other countries. In some places, looting is an accepted multigenerational problem, a part of local culture. In other cases hobbyists, ignorant of the law, may trespass and loot unwittingly (Fig. 1). Professional looters, though, adopt countermeasures to avoid detection. They carefully plan their illegal excavations, studying archival or library materials and topographical maps. If the sites are remote, looters may reach them by horseback, all-terrain vehicles, or by foot.


Figure 1:
Members of the Reed Creek Archaeology Club illegally excavate the graves of Native Americans in Wythe County, Virginia (site designation 44WY25). Virginia requires either a court order or a state permit to disturb burials, neither of which the club possessed. The object of the excavation was to recover ornamental artefacts buried with the dead. A joint FBI-Virginia State Police investigation ended the amateur excavation which resulted in criminal convictions of three men. This photograph was confiscated from the looters. (Photo: Virginia Department of Historic Resources.)

Looters observe law enforcement patrol behaviour and may appear on sites when law enforcement presence is low or hampered: at night (with the full moon to illuminate digging), during inclement weather, or on holidays. To further avoid detection, looters may post lookouts or use watchdogs, employing radio scanners to track nearby law enforcers. They wear camouflage clothes and may camouflage their equipment by painting shovels or metal detectors black. More sophisticated looters carry with them not only shovels and metal detectors but also probing rods (to locate graves or artefacts by detecting changes in soil density) and sifting screens. Enforcement officers have caught some looters bearing false identification or forged permits or even wearing fake park ranger uniforms. Near or on the looted site, the thief may store tools, supplies, or contraband artefacts for later retrieval.

Once the looter finds artefacts, he or she may sell the items directly, through a dealer, or through an investor who has only a few clients. Importantly, though, law enforcement officers cannot presume that looters, by virtue of the kind of crime they commit, are benign hobbyists. Sometimes looters are armed and may fire at an officer.
Applicable laws

Recent federal laws and a concomitant enforcement effort ? taught to law enforcers, prosecutors, and archaeologists through the Archeological Resources Protection Program conducted by the Federal Law Enforcement Training Center (FLETC) in Georgia ? have spurred investigations and prosecutions. Both the laws and the course recognize that officers, in protecting life and property, must protect our past as well.

While federal law has incriminated looting from federal or Native American properties almost since the beginning of the century, virtually no law enforcement took place until ARPA became law in 1979, later amended in 1988 to include sharper enforcement teeth due to obstacles encountered during prosecutions. The chief 1988 amendment for law enforcers was the reduction in the threshold commercial value ascribed to the artefacts plus the cost of site restoration and repair to enable a felony prosecution (as determined by a damage assessment conducted by an archaeologist). The 1988 amendments include the criminalization of attempts to destroy, damage, or remove protected resources, thus relieving officers of having to conduct surveillance while looters destroy a protected resource.[4] A general-intent law (meaning that the prosecution is not required to argue a specific intent to loot), ARPA prohibits people from excavating, damaging, defacing, altering, or removing (or attempting these acts) archaeological resources from public or Native American lands without a permit.[5]

To be a protected resource under ARPA, looted objects must constitute evidence of past human existence, possess archaeological interest (not archaeological significance), and be over 100 years old. Objects, or resources, are broadly defined to include not only relics such as pottery, tools, or shipwrecks, but also rock art, skeletal remains, features of houses or other constructions, even vegetal remains or organic waste. Of particular interest to state and local law enforcement, however, is ARPA?s commercial provision: no one may sell, purchase, exchange, transport (or offer to do the same) resources in violation of ARPA, any other federal law, or any state or local law. Looters who illegally dig up artefacts on private property without permission and cross state lines to traffic in them have therefore violated ARPA, thus transforming a local case into a federal one.

A recent case affirmed ARPA?s jurisdiction over interstate trafficking in antiquities stolen in violation of state law, ARPA?s most versatile provision. The defendants had collected relics on private property and then engaged in interstate commerce; the court decreed that ?there is no right to go upon another person?s land, without his permission, to look for valuable objects buried in the land and take them if you find them?.[6]

ARPA contains other features attractive to law enforcers. Apart from criminal proceedings, ARPA permits a civil recourse through an administrative law judge.[7] Also, ARPA investigations yield forfeiture of assets: vehicles, equipment or tools, contraband, and clothing. Arizona judge Sherry Hutt has observed that as a result of almost a decade of prosecutions, ARPA ?is well ensconced in the legal landscape?.[8]

Another recent, significant federal law that bears on past resources is the Native American Graves Protection and Repatriation Act, or NAGPRA. Importantly for museums, holdings of Native American human remains must be inventoried and surveyed, in some cases the skeletons being repatriated to descendant Native Americans for reburial according to tribal custom. The same law, though, criminalizes illegal trafficking in Native American human remains or any cultural items.[9]
Investigative methods

The nature of looting presents enforcement difficulties. Once unearthed, artefacts are very difficult to link to a looted site. Many protected resources, whether visible remains or underground and hidden, are found away from public view, some within thousands of acres of national forests or parks. The best enforcement opportunity involves catching looters in the act. Short of apprehension in flagrante delicto, officers cultivate informants or obtain confessions. Informants may indeed play a key role in developing intelligence. Nearby farmers, hikers or campers, even hunters may witness looting. If officers discover fresh digging or site damage, surveillance may be possible.

No law enforcement officer can afford to devote dozens of hours to tracking looters. Fortunately, officers are most likely to encounter offences when pursuing other violations. In one case, police officers searching a suspect?s residence pursuant to a narcotics warrant photographed a collection of Native American relics later described as ?the most impressive collection of Indian artefacts in northern California?. A sheriff?s deputy who had been an archaeologist saw the photos, recognized the significance of the relics, and further intelligence brought another warrant to seize the artefacts. The suspect had been convicted previously under ARPA and the court had ordered the suspect?s return of looted artefacts. The photographed stash consisted of the best items from years of looting, hidden to prevent seizure by federal anthorities.[10]

Officers must be able to identify and describe tools and equipment used by looters. Many tools, and the camouflaged clothing that some looters wear, are innocuous by themselves, but taken in context create a suspicion of criminality. ?It is from the totality of the circumstances that reasonable suspicion may rise to the level of probable cause,? the standard for arrest.[11]

Under ARPA protocol, officers process a looting scene as they would any other crime scene, although looting cases involve some unique procedures. First of all, officers must carefully document, measure, and photograph the scene. Second, officers should attend to soil samples as a laboratory analysis might reveal pieces of pottery or bone or even pollen which particularly matches the evidence at the crime scene and perhaps to individual suspects (through analysis of dirt on their confiscated clothing). Third, officers should take casts of footprints and shovel impressions.

Analysis of impressions, coupled with the soil evidence, links both suspects and artefacts to a particular site. Federal cases require an archaeologist to assist by contributing a damage assessment, determining the costs significant to ARPA, and providing an exact description of what has been lost, recovered, damaged, or displaced. The case file should contain a statement from the appropriate issuing authority that no state or federal permit existed to allow the suspect to excavate, remove, displace, or destroy protected resources.
Federal, state, and local cooperation

Despite federal successes, parallel anti-looting efforts at the state and local level have been irregular. States? laws protecting historic or archaeological resources vary and sometimes are not parallel to ARPA.[12] Nevertheless, many state initiatives have shown promise. In Florida, for instance, the state legislature mandated a two-hour curriculum in basic law enforcement academy classes on archaeological resources protection. In the spirit of ARPA, recently the Supreme Court of Indiana affirmed a lower court decision that applied Indiana?s archaeological protection law to private property, where a man wished to dig Native American artefacts on his own property although the state required him to seek a permit to do so.[13]

In Virginia, for example, most historic or archaeological protection laws have specific applications not always comparable to federal interests. Virginia protects human burials wherever they are found on pain of a felony penalty. Misdemeanour penalties attach to other heritage laws. State permission, however, must be obtained for excavations on state-controlled property or on submerged resources in Virginia?s waterways (Fig. 2). While Virginia law defines ?objects of antiquity? similar to ARPA?s definition of archaeological resources, there are differences: objects of antiquity do not have to meet an age criterion (such as 100 years) to be protected and archaeologists are not required to help investigate crimes.


Figure 2:
An officer with the Virginia Department of Game and Inland Fisheries took this photograph of looting in progress. Ernest N. Walker and Houston L. Crayton, later convicted of removing state-protected Civil War artefacts without permission, are shown illegally removing artefacts with a small boat converted for the purpose. (Photo: Virginia Department of Game and Inland Fisheries.)

Investigating looting imposes challenges on law enforcement officers. In Virginia, without an archaeologist?s assistance, an officer would find it difficult to process a crime scene or present a case for prosecution, since an archaeologist is needed to describe what was disturbed, vandalized, or recovered and to assess a value on site damage or the recovered looted artefacts. Thus, a joint effort of the Virginia Department of Historic Resources and the Virginia Department of Criminal Justice Services produced a model policy on theft of historic resources (available on the Internet at <http://www.dcjs.state.va.us/crimeprevention/sampledirectives/manual/2-38R.rtf>) plus a training programme called ?Time Crime? that acquaints law enforcement officers with the looting problem, reviews applicable state and federal laws, and outlines an investigative protocol, modelled closely on federal procedures, honed through prosecutions. The training encourages officers to contact archaeologists to help conduct an investigation. A number of professional archaeologists throughout Virginia have volunteered to assist law enforcement officers with investigations and to testify in court. Virginia?s example demonstrates that, despite differences between state and federal laws, investigative methods developed through cases in other states can be adapted and that anti-looting laws that go unenforced owing to lack of knowledge can be revived provided local law enforcement officers receive tools and encouragement.

Since the Virginia program began in 1995, many investigations have occurred as a result of the training, and far more consultations have taken place between law-enforcement officers and archaeologists. Virtually all of the consultations have involved the disposition of human remains. Skeletal material is inadvertently discovered through construction, and sometimes deliberately excavated through looting (Fig. 3). Native American graves are looted for burial goods; graves of fallen Civil War soldiers are pilfered for military uniform paraphernalia. The consultations have revealed ambiguities in the law but more often serve to instruct relic hunters and citizens. Abandoned or disused cemeteries are imperilled because of development and vandalism, and their disturbance or destruction can unexpectedly ignite community concern.


Figure 3:
Publicity surrounding the convictions of two men for violating the Archaeological Resources Protection Act in Petersburg, Virginia, frightened a looter into presenting a local funeral home with this box of human remains (a Civil War soldier who had been buried near the Cold Harbor battlefield) together with associated artefacts. The precise location of the original burial remains unknown. (Photo: Robert D. Hicks.)

The Time Crime programme has evolved in unexpected directions. One historic site that features a summer school for middle school students of archaeology has incorporated a looting component in which students role-play investigators, crime-scene technicians, and even journalists. The role-play involves an enacted crime in progress featuring an illegal excavation for Civil War artefacts. Mimicking the practicum that teaches officers and archaeologists how to process a crime scene in the federal training course, the students must likewise interview the perpetrator, take notes, collect evidence, and make an arrest. Sometimes the time crime investigations themselves can involve the unexpected. An internal investigation in a state-run maximum security prison examined the possibility that a staff member had collected artefacts from the prison farm, which happened to be located in an archeologically rich area featuring a continuum of habitation from Palaeoindian to the arrival of Europeans.

To all prosecutors and law enforcement officers, however, anti-looting efforts mean more than skillful investigations: the public must be educated (Figs. 4 & 5). In many places, looting supplements income or serves people?s hobbies. Two Arizona attorneys observed that in order to present their case they first had to justify the crime of looting.[14] One reformed looter understood the message: ?Don?t dig ? you destroy history when you do. And don?t buy the stuff either ... Those bones down there ? they?re everybody?s ancestors. I say let ?em rest in peace.?[15]

Notes

1. Harvey Arden, 1989. Who owns our past? National Geographic 175(3), 376?93. Also, see Brian Fagan, 1988. Black day at Slack Farm. Archaeology 41(4), 15?16, 73.

2. Tom Dunkel, 1992. A nation?s heritage at risk. Insight February 17, 14.

3. Charles R. Swanson, Neil C. Chamelin & Leonard Territo, 1992. Criminal Investigation. 5th edition. New York (NY): McGraw-Hill, 60.

4. ARPA was carefully drawn to exclude hobbyists or collectors in that surface finds of arrowheads or coins, say, from protected federal or Indian lands are allowable without a permit.

5. ARPA it defined under 16 United States Code ?470aa-470ll. The legislative history of the law and its current application are amply described in Sherry Hutt, Elwood W. Jones & Martin E. McAllister, 1992. Archeological Resource Protection. Washington (DC): The Preservation Press.

6. United States v. Gerber 999 F.2d 1112 (7th Cir. 1993).

7. For further details of the ARPA civil procedure, see Sherry Hutt, 1994. The civil prosecution process of the Archaeological Resources Protection Act. Technical Brief No. 16, U.S. Department of the Interior, February.

8. Sherry Hutt, 1995. The Archaeological Resources Protection Act. The Federal Lawyer October, 34.

9. 535 USC ?3001.

10. 1996. Common Ground 1(1), 8. (This journal was formerly Federal Archeology magazine.)

11. Swanson, Chamelin & Territo, 1992. Criminal Investigation, 67.

12. For a compendium of state statutes, see Carol L. Carnett, A Survey of State Statutes Protecting Archeological Resources, a special report of the Preservation Law Reporter, Archeological Assistance Study no. 3, August 1995 (published jointly by the National Trust for Historic Preservation and the U.S. Department of the Interior). To aid federal prosecutors ? and state ones ? the General Litigation and Legal Advice Section, Criminal Division, U.S. Department of Justice published the Archeological Resources Protection Federal Prosecution Sourcebook, a compendium of case law, statutes, briefs, and related material on ARPA cases.

13. Indiana?s Historic Preservation and Archeology Act prevailed in Whitacre v. State, 629 N.E.2d (1994), affirmed 619 N.E.2d 605 (Ind. App. 1993).

14. Congressional Quarterly, 40.

15. Arden, 1989. Who owns our past?, 392.

[ole.Grubstake]

This is what I spend the majority of my time doing. I have a legal claim in the gold district of Mariposa, Co.  The diving is just a side line that I continue because I love Maritime History, and I have dove since I was 11 years old. This is a pic of some of the nuggets recovered by me this last year on my claim. I notice you posting articles on grave robbers and artifact thieves and need to reasure you I have never participated in such endevours. I prospect and I dive, mostly prospect and metal detect. I also have a 4000 acre ranch that I have permission to do what ever I want on it here in Mariposa County. It is a part of the original Fremont land grant and has a lot of history behind it. I do not know if the posts on here are for my benefit or pokes at what you think I do. I prefer you are just trying to enlighten me Solomon. But I am pretty savy about the  laws here in the US. It doesn't mean I believe all of them are fair. I do not like goverment intrusion of any sort in peoples lives unless they blatently destroy history for monetary gain. I do want you to know I have never sold a nugget, coin or artifact that I have found. This is my personal collection and will be so until I pass away. I am not in this HOBBY for the money. Anyway have a great day and I hope your post were not meant to in anyway reflect upon me.

[Solomon]

Be assured my interest in this is impersonal and not, therefore, directed at any person. This thread began with my quoting Bart from another board to do with Mexico. My first post, which began History Hunters, touched on this subject and this debate continues in a number of boards across the forum.

That photo is quite spectacular. Thanks for posting it here.

Solomon

[Diving Doc]

If I understand correctly,
what we have here is a problem in communication, nothing more. The laws regarding treasure recovery differ in the world. We fully support the revealing of the pages of History and those who would add to those pages. There is an incredible amount of knowledge that should be made public and the confusion about how it might be done correctly requires careful study.
Cheers,
Doc

[ole.Grubstake]

Thank you Solomon. I needed clarification and I feel better. Just new to the this forum thing and probably a bit thin skinned as I was told by someone else that a poke had been made in my direction. Will be glad to provided you with some incredible California Gold mining History dealing with what I have uncovered in the archives her in Mariposa. They were a wild bunch those 49'ers . I am currently studying a mine located in Hites Cove on the South Merced river. In its heyday it produced three million in gold at below $20.00 per ounce. It has a very colorful past. On my claim there is the Our Chance mine that produced over 2000 ounces of gold just on the surface. The Diltz mine next to my claim has produced masses of gold in the 50 pound range and a few 20 pounders. Lots of beautiful crystalline gold up here.
Respectfully Gerry Edwards

[MesaBuddy]

Straight out of the horses mouth , the Forest Service horse
Best Regards ,
Buddy

[ole.Grubstake]

Thank you Buddy-------I was already aware of this. But I am glad to see you post it so that those from abroad are more aware of our laws. It was a great help for you to post it for everyone to see. Again Thank you.
Ole Grubstake

[MesaBuddy]

Your Welcome Grubsteak ! Are you a dredger ?
Best ,
Buddy
Oh and BTW out here in Arizona there is "NO METAL DETECTING" allowed on state land , pisses me off

[Bart]

US laws governing metal detecting vary widely between Federal, state, county, and city property. It is impossible to list all the laws, no one knows all of them, nor are they all listed somewhere for every one to see, know and understand them.It is difficult to even describe the entire mess. Every different authority has different regulations for the areas under their authority, many of whom can arbitrarily implement or dismiss them at whim.  Some even apply to privately owned property, especially archaeological laws regarding human remains. And yes, it all comes down to who owns the land. Tis a fine kettle of fish Ollie.

      Often, the only way the laws are found out are by inadvertent violation resulting in a fine. You can be told one thing by one individual in authority, only to have another authority come along and tell you something entirely different. I have been told personally by a judge that he, and by extension the Government, is not obligated to educate citizens regarding the law. It seems nearly to the point where one needs an attorney for common daily interaction with the Govt. Basically, the only safe place to detect is private property. I don't see it ever getting better under the current form of Govt.

On the Federal level, in all federal parks, all US Parks, and historical sites and monuments there is no MD hunting allowed. You could theoretically be arrested for just having a metal detector sitting in your car in a national park, have your detector confiscated, possibly have your vehicle confiscated also, and be jailed or fined, or both.It varies from Minnesota, which says absolutely no use of a metal detector in any state park. In Wisconsin you have to get permission of the state park by meeting with the individual state park manager. In some parks, they will allow you too. You have to pay $5 and you get a permit. In other state parks, for instance the historical state park, they just say "no." It varies tremendously. About two-thirds of the states have some sort of regulation varying from "absolutely no" to "yes, you can do it at this time, under these conditions."

http://www.nrcs.usda.gov/TECHNICAL/land/sgif/m5554s.gif

The shaded polygon map shows the percentage of land owned by the Federal government. The 95% or more category is determined by a combination of actual boundaries of Federal land from USGS and data from the 1997 National Resources Inventory (NRI). The 50% to 95%, 5% to 50%, and less than 5% are based on 1997 NRI data aggregated by 8-digit hydrologic unit. 402,138,100 acres or 21% of the total land area is Federally owned (excluding Alaska).

http://www.nrcs.usda.gov/TECHNICAL/land/meta/m5554.html

- Bart

[Sovereign]

I guess that this means that before going metal detecting on land other than one's own, one must check out the owner, first, and get permission. Isn't this the same everywhere?
Sorry if this is confusing when the owner is a government that doesn't make things clear for its different land holdings, but the principle and procedure is clear enough, isn't it?

[Bart]

Absolutely, permission from the land owner is the universal rule and guiding principle. Everything that follows is up to the land owner.

But here is the rub in the whole situation. Under the concept of government of, by, and for the people, the people are being denied use of what they perceive to be something they have a right to, which is use of the land. And it is not just detectorists who complain of this, ATV users, prospectors, and hikers also have a beef. Changing cultural and social whims seemingly dictate usage policies ie; environmentalism.

Limitation of usage is understandable to everyone, folks can't just help themselves to any and everything in sight, such as plants, rocks, dirt, game, etc. But to fence it in, whether physically or by decree, and deny all access to it gets the 'owners' understandably upset. Detectorists and prospectors reason that digging a hole to retrieve something, and then refilling the hole harms nothing. To me that is reasonable and understandable. That concept seems to get others bent out of shape, for various reasons.

another 'phenomena' I have noticed regarding many factual treasure stories is the fact that the land where the treasure is supposedly located is now a state, county, or Federal park or forest. I know of several here in Wisconsin, and have heard of many other states with the same situation.

Some of this equates to the situation in GB, as I am sure you can see. Do the people have any limited rights in the use of Crown property?

- Bart

[Solomon]

Well, Bart, I am now beginning - thanks to your patient explanations, for which I thank you - to grasp some of the issues here. Your drawing attention to crown property in the UK beings the issue into sharp focus for me.

The fact is, that although I know of crown property in general principle, I know for a fact that it is too diverse, complicated and detailed for me to claim that I understand it. I know of various twists and turns in law which many are unaware of and the whole situation is frighteningly difficult. One example: it is traditional for the heir to the throne to be granted land in order to have an income. One of these grants is the Duchy of Cornwall, which spreads over 22 counties and the laws this is regulated by are obscure in many regards.

On a wider issue, there is the UK Coastal Zone Law, with the Crown's prima facie title. Generally, the Crown does not mean monarch, but state, though sometimes it does mean monarch, and the landholdings of the queen are large. Clear? I thought not.

The procedure for a metal detectorist must be the same in the USA and UK: find the landowner and ask permission. Whether crown land in the UK, or government land in the USA, it may not be instantly clear who and where the owner is, and depending on the exact land/owner, the rules are likely to be different. In the UK, my first port of call would likely be the local government authority.

As to right of access, we have the same issues in the UK that you have in the USA. I must admit that here, government tries mightily to open land up for public access, much to the distress of some landowners. Metal detecting, though, is a sensitive issue.

One reason why I wanted History Hunters online was that just prior to creating this site, I joined two forums to discuss this exact issue. One was for archaeologists and the other for metal detectorists. In both, I was slammed hard right at the start, just for asking what the position was. I was insulted personally time and again: I was told that I was antisocial, destructive, with an impure heart, ignorant and generally untrustworthy. This is why, if you check my first posts here, I came out swinging - archaeological digging is destructive, judge by results rather than perceived motive, et cetera. Heritage people were watching the metal detectorist forum just to jump on people like me. Oddly - to me - nobody came to my defence.

I support English law and convention that says archaeology should be disturbed only by archaeologists. I hold this view because to my mind, our history belongs to no one person - not even the landowner. This is why we have heritage laws to protect buildings and places, as well as archaeology. To me, our heritage belongs to us.

This is pure politics. Maybe there is no perfect answer, as different interests conflict. All we can do is try to use the system to argue our case.

Solomon

[Bart]

1. "The procedure for a metal detectorist must be the same in the USA and UK: find the landowner and ask permission."

     That is a given, and is more or less the way it is the world over.

     One of the main points I made earlier was that we here in the US, unlike Great Britain, the people own the land, which we the people administer through our elected representatives. I am saying that I am being denied reasonable access to, and usage of my land rights. I really ought not need to petition any representative authority in order to exercise my rights. I really should not have to take a dispute in the matter to court, and at my own personal expense, in order to exercise my land rights, ever, let alone time after time due to some whimsical interpretation or newly codified directive that comes along. These rights of mine precede archaeologists and their associated laws. My rights were in place first and must always take precedence over any and all laws that came along later.

      I have never willingly or knowingly given up those rights, to the best of my knowledge. Please show me if I am mistaken in my above statements here, with the documents that show how and when that happened, or how I am wrong. That challenge is open to anyone who may be able to do such, and is not directed at any one individual.

     Before this gets too bogged down in issues of specific law and legalities, I want to point out that I am not against some of the laws regarding archaeology that are in place. The main law that I refer to is the law regarding human remains. I believe the excavation of human remains should be reserved for trained professionals.

     2. "On a wider issue, there is the UK Coastal Zone Law, with the Crown's prima facie title. Generally, the Crown does not mean monarch, but state, though sometimes it does mean monarch, and the landholdings of the queen are large. Clear? I thought not."

     Clear as mud, but I know what you mean.

     3. "As to right of access, we have the same issues in the UK that you have in the USA. I must admit that here, government tries mightily to open land up for public access, much to the distress of some landowners. Metal detecting, though, is a sensitive issue."

     Here, the case can be made for the opposite. When govt. takes land under their wing in whatever fashion, it is a sure bet that access and use will be limited and denied for many purposes, especially detecting. It seems that they would deny access to all if they thought they could ''get away with it". All but the 'elite', meaning use is limited to favored persons, highest bidder, or only certain govt. officials, etc. In reality, govt. here is no different that a monarchy without absolute rule, as I see it. Or perhaps as I imagine it to be based upon some of the things they do and wish to do. Grousing? Sour grapes? Ani-govt.? Likely some may view my statements in that light and accuse me of such, or even worse. I expect that, when you can't argue the message, attack the messenger, it is the easy and lazy thing to do.

     4. "One reason why I wanted History Hunters online was that just prior to creating this site, I joined two forums to discuss this exact issue. One was for archaeologists and the other for metal detectorists. In both, I was slammed hard right at the start, just for asking what the position was. I was insulted personally time and again: I was told that I was antisocial, destructive, with an impure heart, ignorant and generally untrustworthy. This is why, if you check my first posts here, I came out swinging - archaeological digging is destructive, judge by results rather than perceived motive, et cetera. Heritage people were watching the metal detectorist forum just to jump on people like me. Oddly - to me - nobody came to my defence."

     People are people wherever you go. I try to understand what they are saying while trying to determine where they are coming from. How I understand what they say may be different than what they intended. Your position is your position, based on a long career in your profession, I respect that. I may not always agree with every nuance of your position, but I don't see the necessity for attacking you personally for it. That is just not intelligent discourse. I am no stranger to such attacks, I have been called the worst by the the worst. Not everyone is prepared or capable of coming to the defense of others, for various reasons. Valid reasons or no, that happens. They must live with what they do, as well as with what they don't. The burden is upon them for as long as they live, I like to think.

     5. "I support English law and convention that says archaeology should be disturbed only by archaeologists. I hold this view because to my mind, our history belongs to no one person - not even the landowner. This is why we have heritage laws to protect buildings and places, as well as archaeology. To me, our heritage belongs to us."

     Our heritage belongs to us, I can agree with that. I agree that archaeology should be disturbed only by archaeologists. The problem arises in the definition of archaeology, it's depth and degree. There are some huge differences between the US and the rest of the world, we don't have thousands of years of of cultural wars by billions of different people to the same degree. We don't have the coins and treasure and artifacts, hidden, buried, or lost, to the same extent. Many regard the Amerindian artifacts of some monetary value, which is fine. Archaeology views them somewhat differently, and they each and all have their story to tell in that regard, which is fine also. But a balance needs to be struck, and obviously has been, and always will be I suppose, regarding the care and needs of the living and future generations. On one side, we can ask how many stone axeheads and spearpoints do we need to find and preserve before we have a good understanding of what happened here in the past? I am sure you understand this aspect and can explain it much better that I. I have said elsewhere on HH that Illinois is currently excavating something like a thousand or more Amerindian sites, with 3,000+ more identified and in line for excavation. Many would ask if that many are really necessary, or to what end, etc.?

Perhaps there is no perfect solution as you say, but I applaud Great Britain for their portable antiquities scheme, it seems to be working very well for the most part. I just don't think it will would work here in the US. A variation of it? Not sure of that either, and have been giving it some thought for years, but have not come up with a solution. I think the need exists for a group to put their heads together and do some brainstorming on the matter. What we do have seems to be working after a fashion, and I hate to fix something that isn't broken. I am not sure the rift is so much between detectorists and archaeologists as it is between detectorists and the govt. Neither side is perfectly happy, but what else is new? Govt does best what it does least, that needs to be said often and loud, I believe.

Tum te dum te dum de tum, skipping merrily on my way.... 

- Bart

[Solomon]

Bart:
The problem arises in the definition of archaeology, it's depth and degree.
Yes, that is an important issue and here in the UK, the answer is evolving. I was advised that this is not defined in law, instead it is advised that a metal detectorist *should* not dig below the ploughshare. In that way, they can find and recover artefacts found by the common metal detector without disturbing an archaeological site.

Bart: your situation vis a vis the law and your rights:
My rights were in place first and must always take precedence over any and all laws that came along later.
Which rights are these - when and how did they come into existence?

Solomon

[Bart]

Very good Sol, the proper place to begin, defining and strictly construeing what one means. I shall have to dig out my law material and provide the answers.

- Bart

[Solomon]

I am beginning to think that , as we noted on the ambiguities in maritime law, so governments prefer to keep things vague for land recovery also. It allows a government to take whatever attitude is convenient to it at the time.

Solomon

[Bart]

One could easily make the case for just that, I see it also. Especially when one sees almost daily news events of some horrific new way man has devised to slaughter his neighbor, accompanied by vows of new legislation to prevent each and every such new inventive way specifically. Naturally there is no out-cry by the same folks when someone recovers trove and loses it to govt confiscation.

Here is something I just now ran across, a new law that took effect as of 1 Jan 2006 in California. Another example of the incremental increase and abridgement of rights, and of how laws you are not even aware of can get you in trouble. Many are convinced that the ultimate and secret agenda of 'environmental protection' laws are the desire to return the population back to the stone age. We certainly appear to be on that track and moving along at a good clip. This is just one of hundreds of new laws, or changes of existing law for the year 2005, just in California.

"Wilderness Areas

Provides that a person who violates a state or federal regulation that prohibits entry of a motor vehicle into a designated wilderness area is guilty of a public offense punishable by a fine. The fine will be $150 for a first offense, $225 for a second offense, and $300 or 90 days imprisonment, or both, for a third offense within seven years.

Authorizes the court to order impoundment of the vehicle for up to 30 days at the owner?s expense, if the person convicted is the owner of the vehicle."

- Bart

[Solomon]

I wonder if the law would be applied equally to this chap.

Solomon

[Bart]

In theory, yes, providing he is a US citizen, and resides here. If he is a resident alien, perhaps not. There is a Canadian national residing here permanently who is a stalker, kidnapper, probably an arsonist, has attempted murder, heads a cult, and cannot be touched by the law. I have had some run-ins with him and his cult people, and he actually has more 'legal rights' and a higher 'status' than I do as a citizen, due to his foreign citizenship.  The county government is a business partner with him and turns a blind eye to his shenannigans. I have affidavits from eight different families against him, and the authorities do nothing. Under the 'Patriot Act' I would be a terrorist were I to commit those same acts, he gets a pass. I have tried numerous avenues to stop this clown, to no avail.

OK, I'll bite, who is the tan man with the shiny yellow Hummer?

- Bart

[Solomon]

Arnie the Terminator, governor of California

Solomon

[Tayopa]

Gentlemen:  Keep it going, interesting.  I will put in my two cents later.

Tropical Tramp

[Bart]

"Which rights are these - when and how did they come into existence?"

This is going to be a difficult topic, and will take many posts to answer in order for one to begin to understand. As you have already mentioned, the US adopted the Common Law of Great Britain as the basis or type of govt. to be used here. This will be in my own words, as best as possible, using quotes, example's, etc., where appropo. Understand that some of this is debated yet today, with factional disagreements from several viewpoints.

 The very first words after the title of The Constitution of the United States of America, known as the Preamble, are "We the people." Everything that follows comes under that concept, or so the theory was at the time it was written. Here is the entire Preamble:

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. "

We the people is a very simple concept, and self-explanatory. As a native American, or natural born citizen, I am one of We the people. The desire to form a more perfect Union is obviously of, by, and for We the people. The same idea applies to each and all of the concepts that follow it. Notice the direct link to me, a flesh and blood man, specifically in the two words 'our posterity'.

 BTW, as an aside, we are not that far down the road of history that blood has changed all that much, and since blood has already been mentioned, and is a very important factor in all this, I wish to state here that I am of the same blood as the reigning Queen of England, Her Majesty, Elizabeth II, which blood specifically being German and Danish. 

Moving on to the Annotations and footnotes most often associated with the above mentioned Preamble, I include them here as follows:

Annotations
PURPOSE AND EFFECT OF THE PREAMBLE

Although the preamble is not a source of power for any department of the Federal Government, (1) the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution. (2) ''Its true office,'' wrote Joseph Story in his COMMENTARIES, ''is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, 'to provide for the common defense.' No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?'' (3)

http://caselaw.lp.findlaw.com/data/constitution/preamble/

So far we seem to have a solid base for, and a good understanding of when (adopted July fourth, 1776), and how my rights came into existence.

After any questions or comments, if need be, I can post other specific rights as put down in the Constitution.

- Bart

[Bart]

This should help explain many thing regarding treasure trove laws here.

- Bart

************************************************************************************

                            The Slow Death of Treasure Trove

by Richard B. Cunningham
7 Feb. 2000


     A cache of gold coins found on Rolling Stone magazine owner Jann Wenner's property has sparked a treasure trove claim against the publisher. (Reuters/Corbis-Bettmann)

     The Idaho Supreme Court will soon hear a dispute pitting media mogul Jann Wenner, the owner of Rolling Stone magazine, against Gregory Corliss, a construction worker who discovered a cache of gold coins buried on Wenner's land near the Sun Valley resort area. Corliss made his claim based on the ancient common law rule of treasure trove, which awards title of an artifact to the finder, be he looter or archaeologist.

     Last January an Idaho trial court rejected Corliss' claim, thus joining the other late-twentieth-century courts that have declined to apply the rule. In some American states, however, the law is still recognized. Why should modern American courts continue to be haunted by an outdated and misunderstood law that Great Britain abolished in 1996? The answer involves some arcane but important aspects of archaeological jurisprudence.

     Cases involving finders of hidden property are seldom simple; there are usually numerous parties and interests involved. Corliss and his employer, Larry Anderson, were excavating soil while under contract to construct a driveway on Wenner's land. Corliss was the first to notice the freshly exposed coins, and further digging by both men revealed a broken jar that had contained a stash of 96 American gold coins dating between 1857 and 1914. By agreement between the two men, Anderson retained the coins, but eventually thought better of their actions and turned the gold over to Wenner, who promptly took the coins to his home in New York. Corliss then demanded their return, asserting his title to the coins under treasure trove theory. The image of simple workmen arrayed against a wealthy landowner is unflattering; Wenner wisely offered the men a reward, which both declined, and Corliss then pressed his claim against both his employer and Wenner.

     As with most accidentally discovered artifacts, the history and original ownership of the coins is obscure, and necessarily speculative. They clearly were buried sometime after the 1914 date on the latest coin, probably by some occupant of Broadford, a mining town once situated on Wenner's land. Throughout the intervening years, none of the previous owners of the land appeared to have been aware of the deposit, and none came forward to assert a claim.

     The uncertainty of the facts in finder's cases is compounded by the complexity of the law. Any discussion of finders' law forces courts to confront not only the rules of treasure trove, but also a variety of other judicial doctrines relating to articles that have been not deliberately buried, but either abandoned, lost, mislaid, or embedded on private land. Classic treasure trove law in Britain applied only to items of gold or silver. The rule thus has no bearing on the organic, lithic, or ceramic artifacts that prevail in American archaeology. But old gold coins, as in the Corliss-Wenner dispute, unquestionably satisfy the rule and for most people represent the very essence of a treasure.

     The classic rule also required the treasure to have been intentionally concealed; here again, because the coins were discovered in paper wrappers and buried in a glass jar, there was clear evidence of their deliberate deposit with an intent eventually to retrieve them. *1. Note. A cache discovered under these circumstances could not be categorized as casually lost nor purposefully abandoned. Superficially, then, the Idaho facts appear to present a clear opportunity to apply the rule of treasure trove.

     Are American states bound to honor the ancient rule of treasure trove? In 1863 the legislature of Idaho, like many western states, decided to employ "the common law of England...as the rule of decision in all courts of this state." Statutes of that kind, known as reception statutes, reflect that citizens received the common law of England as part of their collective heritage, either at the time of American independence, the moment of statehood, or some other operative event. The English common law from the 1760s until the 1880s was unequivocal: Treasure trove went to the Crown. For most states, the question thus became whether simply to reject the received English royal prerogative as inconsistent with their legal systems, or instead to consider adoption of the adulterated form of the rule that rewarded finders as it developed in a minority of American courts between 1904 and 1948.

     The treasure trove rule received its first serious consideration by Oregon's Supreme Court in 1904 in a case involving boys who discovered thousands of dollars in gold coins hidden in metal cans while cleaning out a henhouse. Unwilling to identify coins in such circumstances as lost and seizing on the image of gold as treasure, the court awarded the coins to the boys. The landowners, who had been less than generous with the boys, received nothing. Of course, the British law on which the U.S. version was based would have handed the coins over to the king. Dating to early twelfth-century England, treasure trove was one of many royal prerogatives. In those feudal times, the king's claim to discovered articles of precious metal was absolute and preempted any claim by the article's finder or the owner of the land on which it was discovered.

     The Oregon court simply misunderstood the rule, wrongly believing that it operated in the same fashion as the early rules that awarded possession (and thus the effective equivalent of title) to the innocent finders of lost and ownerless items. In awarding ownership of the coins to the boys, the Oregon court unwittingly became the first to imply that buried valuables should be awarded categorically to a finder, thus disregarding entirely any legitimate claims made by the landowner.

     Four years later, Maine's Supreme Court completed the process of confusing the application of treasure trove law. The facts are eerily similar to the recent Idaho case: three workers jointly found gold coins while excavating on their employer's land. Although a series of English and American cases had already established a landowner's claim to buried valuables, the court awarded the coins to the finders, and for the next three decades the American rules remained in considerable confusion. During that period only a few courts opted for the treasure trove formulation; at one time or another the courts of Georgia, Indiana, Iowa, Ohio, and Wisconsin employed the rule, most recently in 1948. Since then, all the American courts to consider the problem, the Idaho trial court among them, have declined to adopt treasure trove rationales, finding instead that other rules are better suited to a resolution of modern controversies. Unfortunately, the rule of treasure trove persists, still described in contemporary legal texts as a recognized, if not controlling, rule of decision. At best, however, it is a minority rule of dubious heritage that was misunderstood and misapplied in a few states between 1904 and 1948.

     The majority of U.S. courts now follow a mislaid rule for buried objects, which posits that items purposely deposited should be protected until the original depositor can return. The preferable way to protect them is to allow the items to remain in the custody of the landowner on whose property they were discovered. It's a convenient rationale, arguably well designed to assure the best chance to reunite owners with their recently "misplaced" goods. In the context of old artifacts, however, it effectively delivers title to the landowner. The "mislaid" rationale presumes the existence of a living owner, or the vigilance of the depositor's descendants; only occasionally can it be helpful for older artifacts, such as those in Idaho, as the likelihood of the original depositor's return diminishes with each passing year. For artifacts of prehistoric age, the mislaid rule makes no sense, and is thus of little assistance in the vast majority of archaeological applications.

     What rule should be employed by modern courts when faced with conflicting finder-landowner claims to ancient artifacts that are discovered buried on private land? The Idaho trial court, in rejecting the treasure trove rule, wisely aligned itself with all the other American courts that have faced the problem in the last two decades. By rejecting treasure trove and similar finder's rationales, those courts have fostered legal policies that discourage wanton trespass to real property, and give protection to a landowner's possessory claims to any artifacts that have been so embedded in the land as to become part of it. Rejection of the rules that reward finders at the expense of landowners also strengthens anti-looting provisions, and discourages casual, but potentially destructive unplanned searches. Indeed, removal of artifacts from the soil is now recognized in the majority of states either as illegal severance of chattels, trespass, or theft. Modern law has recognized and resolved the problem, leaving no room for royal prerogatives. The old rule of treasure trove may make good theater, but it's poor law, and its death can come none too soon.

Richard B. Cunningham is a professor of law at the University of California, Hastings College of the Law, in San Francisco.

http://www.archaeology.org/online/features/trove/index.html

*1. Note.

"there was clear evidence of their deliberate deposit with an intent eventually to retrieve them."

     I disagree on this point. There is NOT clear evidence of an intent to eventually retrieve them. There is NO evidence of intent other than to hide them. The coins may have been stolen and buried to get rid of the evidence, or any number of other possible scenarios. They could well have been "purposely abandoned".

     The problem with adopting the English common law in regard to treasure trove is obvious. There is a missing element here, which is the Crown. No provision is made for that missing element in US law, to my knowledge. There are also many fictions in US law, which generally work like this - they can't prove it and you can't disprove it - making  decisions discretionary, or arbitrary. One example would be the law of eminent domain:

eminent domain noun. The power of a governmental entity (Federal, state, county or city government, school district, hospital district or other agencies) to take private real estate for public use, with or without the permission of the owner.

The interpretation of that 'law' is morphing, as a recent court decision allows seizure of private property for the "public benefit." In that case homes were seized so a developer could build commercial property that would bring in higher tax revenue. In short, might makes right.

     In the case of the men returning the coins to Mr. Wenner, the property owner, the decision was correct in stating that the claimant had no right under the treasure trove law. The coins belong to the owner of the property. The men had possession of the coins and (one or both of them) voluntarily gave up that possession, correctly, as it wasn't their property. They could have kept them and done with them as they pleased without the land owner's knowledge, but they didn't. Possession is nine points of the law, it is said. This case is another example that illustrates why so many treasure trove finders are secretive about finds, and do not reveal what they find. at least the 'smart' ones don't.

     All land is owned by someone. Most people have no problem with keeping treasure found on 'Govt.' property. Govt, being a corporate (fictional) entity, is viewed as faceless,  to the point of not existing, among other things. Great Britain has a good treasure law, for Great Britain. I have my doubts that any similar law would would as well here in the US, for several reasons;

1. Creating new law is a problem, the chances of getting something fair and equitable are slim in my view. The process would take years, as our system differs tremendously from GB. We have Federal and State entities that traditional have different perspectives and authority, and create new laws that differ accordingly. Treasure is not a major issue in the US today, so the chances of even considering new laws based upon it are slim to none.

2. Creating new law re: treasure almost necessitates a new govt. agency/ bureaucracy, to oversee and implement it. Visions of pork barrel, boondoggle, excessive authority and implementation, and enforcement loom like hideous spectres of a nightmare. Americans are so ignorant and lazy when they cry for the govt. to 'fix' every little problem that arises, they can't see down the road ten feet when it comes to the effects of new laws. No provision is made for rescission of bad laws, traditional forces 'revisions', changes, improvements, and adjustments, but never rescission.

3. The US obviously does not have the 5,000 to 10,000 year history of gold and silver artifacts as much of the rest of the world has. Not only does that make this issue low priority in regard to new laws, it is the main reason why the US does not need such a new law. The vast majority of cultural heritage in need of preservation are stone implements of the past native cultures, and archaeological laws are in place to deal with them and their associated goods.

     If we need anything, we need current laws to be applied, fairly and justly. We need a better understanding by the courts of property rights. Perhaps some codified change of existing law to determine this issue definitively. And we need education of citizens as to what current laws mean in the hobby. I use hobby because treasure hunting as a profession just doesn't realistically apply in any real or practical sense. For the govt to tell it's citizens "I'm not obligated to teach you the law" is just unacceptable. "Govt does best what it does least" is a mindset of many, but here we see the foolishness of that.

Will things get better in this matter? Will real changes be made? I think not. I hope to explain some of the why in my next.

- Bart

[Solomon]

What a mess this appears to be, Bart. In England, until the new and present law, the decision as to whether the treasure was hidden or not was made by the coroner and I don't remember anyone arguing with that later.

The 'crown' in this regard is the state, so in that sense England and the USA are the same, though I will admit that having a crown stamped on something (e.g. the Royal Mail) tends to give gravitas.

I am surprised that in this case, the rights of the landowner seem to be in question. I know of many cases in England, under the old law, when the finder is secondary in relation to the landowner. Today, the landowner is paramount and if the finder does not have an agreement, the finder is ignored. I suspect that in this case, Wenner could win.

Solomon

[Tayopa]

Good morning,  in Mexico it  depends mostly upon the individual state.  In general, the landowner has proprietary  rights.  Unless a prior agreement is reached, the recovered valuables belong entirely to the land owner  - if caught

.    On gov't  land it is a prior  % agreement, except for Archaeological values,  however,  since that is such a broad term  -------?   Mum is the word, unless, it  is so large that one cannot play  the mum game.  This is the basic problem at Tayopa.

Recently, almost all recovered values  on federal land have been declared as  "As wonderful  depositories of Archaeological value".  hmmmm.      Do not quote me, but I undertand that in the case of duplicates in the museums, you are given the artifact, or it's value.

In Mexico Treasure  hunting is a long and honored undertaking /profession.  Unfortunately,  Mexico eyes her northern neighbor carefully and adopts many of her customs and rulings,  generally the most undesirable  ones. 

As the Shadow used to say "Who knows what evil lies in the hearts of man, only the shadow knows".

Tropical Tramp

Tropical Tramp

[Bart]

     Everything is in question, simply because there is money in it. Every court decision is appealable, up to the Supreme Court if one desires, and they decide whether to accept a case or not. One can drag the implementation of a decision out for years, and they do. Landowner rights shouldn't be in question, and one has to wonder whether this is being done by design.

    Last year, a Chicago man was renovating a house, and upon removing a plastered wall, he found an Thompson submachine gun in a canvas bag, in mint condition, along with several boxes of ammo and the hardware store receipt for it all. He called the police and they came and picked it all up, and still have it, won't return it. One gun dealer has offered him a minimum of $10k for it. They want to "keep it for posterities sake." Lawyers, cops, and many others all have different opinions of what can and can't be done under the law in this, and in many other cases.
http://copwatch.net/forums/showthread.php?threadid=7645

     If the crown equates to the state, then clearly all trove belongs to the state, and the property owner has no rights in the matter. I know of no incident where the state has won in court on that basis. It is madness that every dispute must be adjudicated, no matter the precedent or the law. It all seems to be driven by various emotions.

     Decisions don't seem to matter, they are appealable, if you have the means to hire a lawyer. But the only reason for an lower court decision to be vacated is for an error in the law, in the judge's decision. Merits and precedence are not considered, and 'popular opinion', often media driven, can play a part.

     Valuable artifacts and their associated data/ knowledge are lost due to a find being kept secret, but no one cares enough at this time to do anything about it, as the UK seems to have done. No one takes blame, 'It ain't my job' to fix it, so nothing gets fixed. In fact, it is hard to identify what is even broken, and in need of repair.

     An agreeement with the land owner is necessary, when there is a clear individual identifiable as land owner. As I have shown elsewhere, up to 95 % of the land in the western US is govt. owned, and there-in lies the problem. A recent incident involving a large trove including other artifacts has come to my attention. All this is hearsay, and none of it may be true, but I will relay it as an example.

The find was made on BLM land. An attempt was made to reach an agreement for a finders fee. The negotiations went like this - "Show us where it and and we will discuss a finders fee." Obviously, the BLM agent making that statement had no authority to make a binding agreement. There is no provision in law for such a situation. And who wants 10% of a million or more when secrecy will give you a much bigger cut?

     The finder didn't fall for that one, as PM's assured me later. The find was recovered secretly and the govt. got nothing. Most treasure hunters agree that that is as it should be. If those involved can keep their lips sealed, the risk of getting into trouble is quite low. Is the govt. likely to investigate the matter? Maybe, maybe not. I am told that like the toilet stolen from the police station, they have nothing to go on. Were any laws violated in the matter? The answer depends upon who is asked the question, and good luck getting anyone to cite a specific law.

     If the scenario described is true, and a monetary gain was realized, the problem of reported income arises, and tax evasion is another risk. The govt. may not need to prove the trove came from 'their' land, and the punishment under the IRS would be severe. This is how the govt. 'got' Al Capone. Oh joy.

- Bart

[Bart]

That doesn't surprise me RT, but would you really trust the Mexican Govt in % arrangement?  I think we already know not what, but that, evil lurks in the heart of men.  Si amigo?

- Bart

[Bart]

The Life and Times of the US Antiquities Act

by Joe Baker

There is the inevitable speculation about the day-to-day lives of the people who built the enormous sandstone pueblo beneath the soaring cliff, but my thoughts also turn to five brothers from Pennsylvania who came here in the late 19th century to homestead in the vicinity of modern Mancos, Colorado. The family name was Wetherhill.

Their Ute neighbors led them to some of the ruins, explaining that no one knew who?d built them, or when. The Wetherhills began exploring and casually collecting a few mementos. Then on the afternoon of December 8, 1888, from somewhere very close to where I?m standing, Richard Wetherhill and his brother-in-law saw the set of ruins they eventually named Cliff Palace.

The Wetherhills and some of their neighbors spent most of that winter camped there, digging. They packed their treasures on long mule trains: intact painted pots and jars, baskets, sandals, leather goods, stone tools, wooden objects; the entire material culture of the pueblo?s residents. They also packed up the desiccated remains of an unknown number of inhabitants. The Wetherhills eventually sold the hoard to the Colorado Historical Society for a very tidy sum.

At the abandoned pueblo, the silence of the plateau returned in the wake of the last departing mule train. Spring came, and the wind blew over the tumbled walls, empty graves, and trash piles left by the Wetherhills, gradually covering everything with tumbleweeds and dust.


A Shared Heritage

At the turn of the century, the way America viewed itself was changing. The mysterious, terrifying wilderness was nearly explored, railroads connected the coasts, and the aboriginal people were no longer a feared enemy. The America of the early 20th century was a confident young giant. Its vast expanses, its natural and historic wonders, set it apart from the stodgy Old World across the Atlantic. The Antiquities Act was born in this changing America, a child of the growing interest in the past and the natural world, and a response to the growing alarm over its destruction.

What the Wetherhills were up to was by no means an isolated incident. The excavation and sale of antiquities was rampant in the late 19th century. What was new was how Americans were viewing it. The Progressive Movement influenced opinion about the exploitation of both workers and natural resources. Concern over looting had its roots in the notion that the nation?s past and natural riches belonged to all of us, and were vital to our future. There was a growing sense of shared heritage; anything that threatened it was to be taken seriously.

The era figures prominently in the birth of American anthropology and archeology. In 1879, John Wesley Powell founded the Bureau of American Ethnology, and the American Association for the Advancement of Science elected an anthropologist as president. What became the American Anthropological Association was formed, along with the Archaeological Institute of America. New perspectives began to influence what people thought of Native Americans, promoting the idea that the value of places like Mesa Verde transcended what its baskets would fetch on the antiquities market.

The best time to photograph Cliff Palace is at sunset, when the sun slants in below the overhang, producing the chiaroscuro that has captivated generations of photographers. Shortly before the last light, as I squeeze off a couple of shots, a few cars pull up and I am surrounded by families. Kids squeal and point, their parents and grandparents gasp at the architecture and landscape. They are from Iowa and Washington State, from Cape Hatteras and Zuni Pueblo. There is excited chatter, quiet amazement, the full range of human wonder. The early advocates for these places, flush with awe and reverence, had it exactly right. They knew the past belonged to everyone and acted to preserve this record of who we are. All of us at this overlook are in their debt.


The Dawn of Ancient Things

In 1880, a geologist named Adolph Bandelier appeared before the ruins at Pecos Pueblo near Santa Fe. He was both impressed and shocked by what he found.

The pueblo, visited by Coronado in 1540, was large, intricate, and beautiful, a tribute to the skills and aesthetic sense of the builders. It was also being shamelessly abused. Bandelier had been sent by the Archaeological Institute of America to record the ruins. In his report, he noted: ?Mrs. Kozlowski [who lived two miles south on the arroyo] informed me that in 1858 . . . the roof of the church was still in existence. Her husband tore it down, and used it for building out-houses. In general the vandalism committed in this venerable relic of antiquity defies all description . . . All the beams of the old structure are quaintly [carved with] much scroll work . . . Most of this was taken away, chipped into uncouth boxes, and sold, to be scattered everywhere. Not content with this, treasure hunters [have] ruthlessly disturbed the abodes of the dead.?

Bandelier?s report caused great concern. Some members of the Archaeological Institute, influential New Englanders, voiced that concern to their elected representatives.

The Pecos project, and the Wetherhill discoveries, led to further archeological investigations in the Southwest. Swedish archeologist Gustav Nordenskjold conducted state-of-the-art excavations at Mesa Verde in 1891, shipping a substantial collection back to Stockholm, where it remains to this day. A few years later, the American Museum of Natural History, with financing from wealthy New York collectors, excavated the spectacular Anasazi ruins at Chaco Canyon in northern New Mexico. A large quantity of artifacts wound up in New York. The foreman at these excavations, Richard Wetherhill, had by this time filed a homestead claim at Chaco Canyon, an attempt to corner the market on antiquities coming out of there. Homestead claims were being filed specifically for archeological sites. A lucrative antiquities market sprang up almost overnight.

The cumulative effect of the excavating and pillaging was heightened public concern. The two reports?by Bandelier and Nordenskjold?opened eyes to the wonders of American archeology. Packing artifacts from the Four Corners region off to the homes of the wealthy or to museums in New York and Sweden was seen as a violation of the public heritage.

In 1892, to protect Arizona?s Casa Grande ruin from looting, President Harrison issued an executive order declaring it off limits to homesteading. The order set two standards. One, it was the earliest example of the government intervening to save archeological sites, and two, it was the President acting, not Congress, significant in the chain of events leading to the Antiquities Act.

It was also a reflection of the limited preservation tools available to government at the time. Congress could create a national park, but that took a major legislative effort, and only worked for large, wellknown places like Yellowstone. Declaring a reserve for places like Casa Grande, while expedient, was only temporary. Between 1891 and 1906 the General Land Office?part of the Department of the Interior that managed federal lands in the West?pushed through reserves at Mesa Verde, Chaco Canyon, and other sites in the Southwest. It was the best the government could do.

In 1891, Congress gave the President authority to declare permanent timber reserves. The land office used this as a model for ancient sites, drafting legislation that would allow the President to set aside scenic and scientifically important places, too. This was more than many western congressmen were willing to give, particularly after Theodore Roosevelt established enormous forest reserves.

In 1904, in order to bolster the argument, the land office directed Edgar Lee Hewitt, a young archeologist who was gaining a reputation in the Southwest, to prepare a report on sites in the region. He drew on his contacts and the reports at the time to compile a list including what would be many of the first national monuments. Representative John Lacey of Iowa, with input from the anthropological community, shepherded a bill through Congress, which Roosevelt signed on June 8, 1906.


Spirits in the Canyon

Lynne Sebastian exits the low doorway of a tiny masonry room at Pueblo Bonito, the monumental multistory 12th century Anasazi ruin at Chaco Canyon, then turns to watch with some amusement as I squeeze my considerable bulk through the same small opening. I find we are standing at the edge of the great plaza, the heart of an immense desert community that dates back to before the arrival of Europeans. As I look back at the maze of rooms, walls, subterranean kivas, and windows, Lynne employs her flair for the dramatic to give me a little perspective. ?Until sometime in the early 20th century,? she says, ?this was the largest building in North America.?

There are few people who know more about this place than Lynne. She wrote her doctoral dissertation on Chaco and served as New Mexico?s preservation officer for a dozen years. Long familiarity has, if anything, sharpened her enthusiasm.

For me, this is my first visit, something of a dream come true. Chaco Culture National Historical Park is a world heritage site, set aside as a national monument in 1907. It is one of the first archeological complexes so designated under the Antiquities Act. Splendidly isolated, it requires a long drive, some of it on primitive roads, to reach. The isolation helps protect it from being loved to death. In the course of a leisurely, six-hour ramble, Lynne leads me through some of the ruins, and we explore the silent remains of what must have been bustling and lively communities between 800 and 1200 AD. The magical names flood back to me from an undergraduate class almost 30 years ago: Chetro Ketl, Pueblo Del Arroyo.

Despite decades of excavations and thousands of scholarly reports, Chaco is still a place full of unanswered questions. What led bands of families to build in one of the world?s most austere and unforgiving environments? How did they organize? In whom did authority rest? What led to the sudden abandonment of these communities in the 13th century? We discuss this at length, and before we know it, it?s time for me to settle in to a tent at Chaco?s tiny campground. Before Lynne leaves, I ask a final question: It?s obvious why this place matters to archeologists, and it?s clearly of great importance to Native Americans, but what about the rest of the world?

She ponders the question for a moment. ?I think the most haunting and compelling thing about this place is its permanence. They built for the ages, with an eye to eternity. Just like us, these people were certain of their future. They believed they needed to build places that would last a thousand years, yet after only a couple hundred years, they were gone. There is something so moving, so sobering about that . . . maybe we see ourselves here.?


A Movement Gathers Steam

Things happened quickly after the passage of the Antiquities Act. Between 1906 and 1908, President Roosevelt established 16 national monuments, all in the western states. Ten, including the first at Wyoming?s Devil?s Tower, were designated primarily for their scenic and scientific value rather than for archeological or historic preservation.

The act had three precedent setting provisions. The first made it illegal to damage archeological sites on federal land, criminalizing looting. The second got rid of the word ?parks??a word that gave western legislators cold feet?replacing it with ?national monuments,? areas limited to just enough acreage to protect a site. The act gave the President sole authority to establish the monuments by proclamation. The third provision required a permit for excavations on federal land, demanding professional rigor.

Part of the act?s legacy is its role in preserving environmentally and geologically important places. While the first monuments were almost entirely in the western states, that soon changed. In 1916 Woodrow Wilson established Maine?s Sieur de? Monts, which eventually became Acadia National Park. Others followed including Mound City in Ohio (1923), Fort Wood, site of the Statue of Liberty, in New York (1924), and Forts Marion and Matanzas in Florida (1924). In total over a hundred monuments have been established, although some have been absorbed by other sites or redesignated as parks or state properties. While most are in the West, there are now monuments in 25 states. Every President has designated or expanded at least one monument.

The net effect is the protection of an enormous swath of heritage. Hopewell burial mounds, vast cave networks, numerous southwestern pueblos, gigantic redwoods, and 19th century forts are all part of the act?s legacy. And that goes well beyond the monuments themselves. Says Frank McManamon, chief archeologist of the National Park Service, ?The act defined a basic public concern for sites on public land, and asserted a fundamental right to how theywere to be treated.? That concern formed a foundation for all the laws that followed.

The accomplishment is breathtaking. Protected lands have preserved literally millions of acres of priceless cultural and environmental treasures. The statute is part of the legal foundation for preserving wild places, too. Several of the iconic parks?jewels like the Grand Canyon?began life as monuments in the early days of the Antiquities Act. They are a reminder that historic and environmental preservation were born more or less together.


A Timeless Idea

A few weeks after my visit to Chaco, I board the Port Authority train in Newark for the short hop across the river to New York, disembarking at the World Trade Center Station. The sight hits me like a punch in the stomach. The last time I was here, the towers still stood. I proceed up Broadway for a few blocks to the new federal building. It?s not the building that brings me here, but a small plot surrounded by a cyclone fence immediately adjacent. A national monument is under construction, one of the newest, established by President Bush in March. Three years ago, 419 individuals were interred on this spot, moved from their original resting place beneath the building. I am at the site of the African Burial Ground.

Among the residents of colonial New York was a substantial population of African descent. Some were free and some were not. Some arrived with the Dutch, others on British slavers from Africa or the Indies. Very little is known about day-to-day life in the community. Certainly life was harsh and segregated. So was death.

Persons of color could not be buried with Euro-Americans. Instead, their burial was relegated to a seven-acre plot on a ravine at the edge of the settlement. In the 1790s, the plot was filled with rubble to level the area for building sites. That fill, some 15 to 30 feet deep, protected the occupants for two centuries.

In 1991, during construction of the building, workers encountered the remains, touching off an emotional response from city residents. While the property was known to be within the old cemetery, planners assumed that generations of buildings had obliterated it.

Archeologists were called in, and uncovered hundreds of burials. The decoration of coffins and small things interred suggested connections to African customs. Chemical analysis revealed that most adults were born in Africa, although many children were born either here or in the Caribbean. Signs of stress and injury?from heavy labor and poor nutrition, even among the very young?were common. So was evidence of strong families, like women buried with infants and children. Slowly, during a decade of research, the details came into focus. These were lives of hardship and brutality, of stubborn devotion to family and tradition.

The African Burial Ground is a reminder that the Antiquities Act is hardly an anachronism. And there are new challenges ahead.

The National Park Service is not the only agency with national monuments. The Bureau of Land Management is the largest federal landowner in the West, with long experience managing wilderness areas and places with historic value. But much of its focus has been on the practical use, such as grazing leases and oil, gas, and mineral claims. With a number of monuments established in the 1990s, the agency faced some new and complex issues. Local sentiment was decidedly negative. Some feared that grazing, timbering, and other traditional activities were threatened.

BLM responded with the National Landscape Conservation System, an approach that allows for conservation in the context of the multiple-use mandate. BLM developed management plans for 15 of its monuments, with intensive involvement by local stakeholders. The result is, in a way, a new kind of monument. The plans are flexible enough to address grazing allotments and mineral extraction, while providing protection for resources ranging from cliff dwellings to old growth forests. There is still a lot of learning and adapting ahead, but the approach shows great promise.

The act faces another frontier at the shoreline. There are national monuments underwater, places rich in aquatic life, geological wonders, shipwrecks, and other historic remains. They are all exceedingly fragile. The traditional protection?a marine sanctuary?can take years. Establishing a monument can save the day with just the stroke of a pen.

Of course it?s much more complicated than that. There are complex issues of ownership and control. Protecting submerged sites can be costly, and law enforcement next to impossible. There are jurisdictional issues, too.

In 2003, the 419 individuals disinterred from the site of New York?s new federal building?along with all the small objects that accompanied them into the hereafter?were reburied in the plot behind the chain link fence that I now look through. Public art commemorating the burial ground adorns the lobby of the building. National Park Service exhibits will interpret the site and the history of the community. The monument will not only explain how these residents were buried, but who they were, how they lived their lives, and why they matter. One of the artworks is a mosaic of the city skyline on a foundation of human skulls, a metaphor of how modern New York, and modern America, rests on the lives and work of those who came before.

Certain places, like this one, are a palpable reminder of our predecessors, and what they left us. That?s ultimately what produced the Antiquities Act and what keeps it relevant. It is based on the simple yet powerful proposition that we should remember these people, so that we know who we are and where we came from. The lesson stays with me as I walk back toward where the great towers once stood.

Joe Baker is an archeologist and a member of the Society for American Archaeology Public Education Committee. He can be reached at (717) 705-1482, email .

http://commonground.cr.nps.gov/Feature.cfm?issue=Summer%202006&page=1&feature=1

[Solomon]

Cliff Palace ruin at Mesa Verde is one of the largest and best preserved Anasazi ruins. More than a hundred people lived here at one time. The ladder leads into the largest kiva, which has been painted inside. A tower at this site (not shown) has abstract paintings inside that resemble weavings.

Anasazi Basket Makers
In about 1 A.D., more than a thousand years before Christopher Columbus set foot on the New World, the Anasazi Basket Makers were excavating pit houses in the Southwest.  The Anasazi  ("the ancient ones") were the ancestors of the modern Pueblo Indians of New Mexico and Arizona.  When Viking explorer Leif Ericson sailed for America around 1000 A.D., the Anasazi architects at Chaco Canyon in New Mexico had already built much of Pueblo Bonito, a spectacular multi-storied structure.  Today, in modern Taos, Pueblo Indians dry chilies beside the same doors as their ancestors did long before the founding of the Jamestown Colony in 1607.

Early pit houses were saucer-shaped, made of sticks, smeared with mud, and built partially underground.  Later pit houses had a framework of posts and cross-beams covered with brush to form the roof.  A hole in the floor, the Sipapu, symbolized the place where the first Anasazi emerged into this world.  Kivas, normally round stone structures used by later Pueblo Indians for religious ceremonies, are thought to be patterned after the early pit houses.

In time, the Anasazi built pit houses above ground with an entrance from a hole in the top.  By around 750 A.D., the Anasazi began building different types of dwellings built of adobe (a mud/clay mixture) or terrones (square blocks cut from mud) used like bricks.  When possible, a framework of slender upright poles plastered with mud (called jacal) was also used.

When sandstone was plentiful, dwellings were built of stone masonry, often around a central plaza.  Vigas  (wooden beams) formed the roof, small saplings (latillas) were laid between the vigas, followed by layers of twigs, reeds, mud, and finally topped with dry earth.  Anasazi Cliff Dwellers build multi-storied stone structures, reached by ladders, near or under overhanging cliffs at Mesa Verde and other sites.

Modern day Pueblo people inherited the architectural viewpoint of their Anasazi forefathers:

    * effective use of native materials
    * energy conservation in transporting materials
    * energy conservation in heating and cooling
    * harmony with the environment, conservation and stewardship
    * design with a broader world-view
    * All space is sacred; each house is a small example of the larger world.


Pueblo Bonito, Chaco Canyon, 950-1150 CE

Sharing the region with the Anasazi were the Navajo.  Navajo hogans have taken several forms, from the early "forked stick" hogans with interlocking poles to the circular, stone-walled dwellings with log roofs.  Later hogans were often flat roofed, earth-covered square structures of four poles or they were six- or even eight-sided with notched logs forming their circular shape.  All hogans have a smoke hole in the roof and the door always faces to the east.  A blessing rite, where sacred corn pollen is smeared along the hogan poles, is performed to insure that a new hogan will be a happy place.


Pueblo Bonito ruins, Chaco Canyon, New Mexico

[Bart]

The Native American Graves Protection and Repatriation Act (NAGPRA)

is a Federal law passed in 1990. NAGPRA provides a process for museums and Federal agencies to return certain Native American cultural items -- human remains, funerary objects, sacred objects, and objects of cultural patrimony - to lineal descendants, culturally affiliated Indian tribes, and Native Hawaiian organizations. The National NAGPRA program assists the Secretary of the Interior with some of the Secretary's responsibilities under NAGPRA, and focuses on NAGPRA implementation outside of the National Park System.

Among its chief activities, National NAGPRA develops regulations and guidance for implementing NAGPRA; provides administrative and staff support for the Native American Graves Protection and Repatriation Review Commitee; assists Indian tribes, Native Alaskan villages and corporations, Native Hawaiian organizations, museums, and Federal agencies with the NAGPRA process; maintains the Native American Consultation Database (NACD) and other online databases; provides training; manages a grants program; and makes program documents and publications available on the Web, including the two new NAGPRA brochures.

Law, Regulations, and Guidance

(This is a massive amount of data, so I am providing the outline here, with a link to actual text of the regulations here; http://NAGPRA www.cr.nps.gov/nagpra/MANDATES/INDEX.HTM  - Bart )

A number of resources are available to assist museums, agencies, and Native American communities in carrying out NAGPRA. For additional information regarding the specialized terms used in NAGPRA, see the NAGPRA Glossary.

Law and Regulations

Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001 et seq. [Nov. 16, 1990] PDF or Text
Final Regulations, 43 CFR 10 (includes preamble) [Dec. 04, 1995] PDF or Text
43 CFR 10 - Updated (Full Text, excluding preamble, of 43 CFR 10 as amended January 13, 1997; August 1, 1997; and May 5, 2003; and published in the Code of Federal Regulations October 1, 2003) [Oct. 01, 2003] PDF or Text
Reserved sections of the NAGPRA regulations
43 CFR 10.13, Future applicability proposed rule [Oct. 20, 2004] PDF or Text
43 CFR 10, Final Rule, Technical Amendment [Sep. 30, 2005] PDF
Secretarial Orders

Secretarial Order 3261 [Jul. 7, 2005] PDF

Summaries, Inventories, and Notices
Summary and Inventory Overview PDF
Cultural Affiliation PDF
Federal Register Notice preparation
Memorandum providing guidance on preparation of NAGPRA inventories [Apr. 27, 1995] PDF or Text

Excavations and Inadvertent Discoveries
43 CFR 10 Subpart B Overview (Excavations and Inadvertent Discoveries) PDF
Inadvertent Discoveries on Tribal Lands - Overview PDF
Inadvertent Discoveries on Federal Lands - Overview PDF
Intentional Excavations on Tribal and Federal Lands - Overview PDF
Priority of Custody/Ownership Flowchart [43 CFR 10.6 and 25 U.S.C. 3002(a)] PDF
Cultural Affiliation PDF
Plan of Action Checklist PDF
Comprehensive Agreement Checklist PDF
NAGPRA Section 3 and the Requirements of ARPA PDF
Comparison of NAGPRA, ARPA, and NHPA Section 106 PDF

Consultation

Native American Consultation Database for tribal NAGPRA contact information
Bureau of Indian Affairs list of Federally Recognized Tribes (PDF) [Nov. 25, 2005]

Legislative and Regulatory History

US House Report 101-877 [Oct. 15, 1990] PDF or Text
US Senate Report 101-473 [Sep. 26, 1990] PDF or Text
Proposed Regulations, 43 CFR 10 [May 28, 1993] PDF or Text
Interim Civil Penalties Rule, 43 CFR 10.12 [Jan. 13, 1997] PDF or Text
Correcting amendments to final regulations [Aug. 01, 1997] PDF or Text
Final Civil Penalties Rule, 43 CFR 10.12 (includes preamble) [April 3, 2003] PDF or Text
Correction to the Final Civil Penalties Rule [Jul. 3, 2003] PDF or Text

Congressional Oversight and Proposed Amendments
Senate

May 10, 1993 Indian Affairs Committee Oversight Hearing, S. Hrg 103-198 (Not available)
Dec. 6, 1995 Indian Affairs Committee Oversight Hearing, S. Hrg 104-356
Jul. 30, 1996 Markup of S. 1983 (Not available)
Apr. 20, 1999 Indian Affairs Committee Oversight Hearing, Witness list
Jul. 25, 2000 Indian Affairs Committee Oversight Hearing, Witness list
Sep. 9, 2002 Committee on Energy and Natural Resources regarding S. 2598, S. Hrg 107-258
Oct. 11, 2004 Indian Affairs Committee regarding S. 2843, S. Hrg 108-406
Dec. 8, 2004 Indian Affairs Committee Oversight Hearing, S. Hrg 108-768
May 12, 2005 Indian Affairs Committee regarding S. 536, S. Hrg 109-67
Jul. 28, 2005 Indian Affairs Committee Oversight Hearing, Witness list
House of Representatives

Jun. 10, 1998 Resources Committee regarding H.R. 2893, Witness list and NPS testimony
http://www.cr.nps.gov/nagpra/

[Solomon]

Am I right in thinking that this sets a procedure to handle human remains which is exclusive to Native Americans and therefore (by definition) sets them apart from the rest of the U.S. population?

Solomon

[Bart]

You are correct sir, that is what it is for, as the title states. Specifically, it is "a process for museums and Federal agencies to return certain Native American cultural items, ".

When grave goods are found, generally on govt land, a tribe makes a request for their return, providing there is an obvious lineal or cultural affiliation. As in the case of the Kennewick man, the caveat was not apparent, and the matter ended up in Federal court for a decision. The agency in charge of oversight of the land where K. man was found, has since dumped thousands of tons of rip-rap, rock, over the site to prevent further investigation of the site. They were at first more than willing to return K. man remains over to the local tribe for reburial, most think for the same reason as above. Some interested scientists filed papers with the court in order to prevent that, and ultimately, the several subsequent court rulings have decided in favor of further study.

- Bart

[Solomon]

Thanks for that, Bart.

To help me grasp some of the implications of this, let me pose a scenario:
Three sets of human remains are found next year - one of a 15th-century Spaniard, another of a 19th-century Native American and the third of a late-18th century US colonial - all three in the same archaeological site, say an emergency dig on some construction site in Florida. How would they be treated differently?

Cheers!
Solomon

[Tayopa]

Solomon, one of the key problems in the case of the kennewick man is that he is apparently European.    This radically changes the later "native" ? American basis for a claim of  having even later Europeans take the land away from them and so  receive compensation.  This is why it is so important to them,  since it shows that later Native Americans took it away from earlier Europeans.  They do NOT want this investigated any further.

And Yes to your question, the Native Americans have laws to protect them.

Who ever told you that we Americans are rational ?

Tropical Tramp

[Bart]

" Three sets of human remains are found next year - one of a 15th-century Spaniard, another of a 19th-century Native American and the third of a late-18th century US colonial - all three in the same archaeological site, say an emergency dig on some construction site in Florida. How would they be treated differently? "

Wow, that is some scenario! My guess is that the Spaniard would end up in storage at a University or museum, the Amerindian would be handed over to the local tribe for reburial in their Native cemetary, and the Colonial would be re-interred in a local cemetary, likely with a Christian ceremony. But in reality, I believe it would take years before the dates were sorted out and any burying was done. And it may well end up in court, someone will be sure to find a way to do that. 

You may wish to contact a Florida anthro or archy and ask the same question of them, you may get an entirely different answer. And then ask the same question of the same folk in one or more other states, perhaps a sampling around the country. It would not surprise me in the least that you would get different answers entirely in each state.  Do not be surprised when you find out that ' Columbus First Last Only & Always' is set in reinforced concrete here. The worst that could happen is that you adopt some American thinking. The best that could happen is that you go off the deep end when you draw your conclusions at the end of your quest. 

In short, it is impossible to say, and absolutely nothing would surprise me. Here is where I ask Jose to light a candle and beg his santos padron that this scenario never comes about in the US.  Mucho gracias mi amigo!

- Bart

[Solomon]

I am struggling to come to terms with this. From my POV, the USA is renowned for equality in law, so the idea that a group of people, selected on race, should be set apart (or even above) others is difficult to accept.

"cultural affiliation" means that there is a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present day Indian tribe or Native Hawaiian organization and an identifiable earlier group.

If it is true that the law was introduced to stop scientific investigation of precolumbian remains, then a determination of their genetic makeup would not be possible. This would perhaps classify all precolumbian human remains as Native American. I can see that this would not be satisfactory from a scientific viewpoint.

Solomon

[Bart]

" If it is true that the law was introduced to stop scientific investigation of precolumbian remains, then a determination of their genetic makeup would not be possible. This would perhaps classify all precolumbian human remains as Native American. I can see that this would not be satisfactory from a scientific viewpoint. "

" the USA is renowned for equality in law " Maybe so, but cultural flux and 'progress' create change, in this case political correctness is one of the driving forces. A trade-off occurs.

It is my understanding that the law was introduced for the purpose of repatriation of ancestral remains out of cultural/ religious respect. Equity in law is not a factor in such a scenario. All Federally recognized tribes have a sovereign status within the US, resulting in dual citizenship, with some tribes issuing their own passports.

Like many laws, some people at times find it useful for furthering a somewhat different agenda. Often a nefarious agenda is only suspected, with no way to prove it. Implementing repatriation obviously prevents scientific study, the one naturally follows the other. Rhetorical reasoning may go something like this - How many 19th century Native bones need to be studied before  just about everything is known?

In the case of Kennewick man, the assumption that the remains were Native American may have been the initial paramount motivation for repatriation. But the assumption is based upon the preconceived notion of Columbus First Last Only & Always.

Kennewick man ruling - politics or science?
14 February 2004

Native Americans called him "The Ancient One", while anthropologists speculated he could reveal who first settled the Americas.

Then, for over seven years, the skeleton of Kennewick Man became the subject of a court battle between the two parties, crystallising the debate over who should lay claim to ancient human remains and artefact's.

Last week, a federal appeals court finally granted scientists the right to study the 9200-year-old bones, against the wishes of a group of native American tribes, including the Nez Perce tribe of Idaho and those of the Yakima Indian Nation, who wished to rebury them.

But the ruling may actually be a triumph of politics over science, since Kennewick Man could be of limited value to anthropologists. The archaeological site where it was found has been destroyed, taking with it vital contextual information. And, while the skeleton has gathered dust, other potentially more important skeletons have been unearthed.

But the researchers say it is the principle of access to such remains that counts. "If we'd caved in on this one, it would have closed the door to research on other early skeletons," says anthropologist Rob Bonnichsen of Texas A&M University at College Station, a plaintiff in the case. ( a precedent would have been set if the court challenge had not been implemented)

Unusual features

     The skeleton hit the headlines in 1996 when it was discovered along the north bank of the Columbia river in Kennewick, Washington. Carbon dating revealed the remains were between 8340 and 9200 years old, the oldest found in the Pacific north-west - then thought to be the first part of the Americas to be colonised. (the Bering Straight land - bridge theory)

     Anthropologists were also excited because the skeleton was 90 per cent complete and had unusual features differing from those of Europeans or modern native Americans.

     However, tribal officials demanded that the bones be reburied, claiming they had a right to inter their alleged forebear under the 1990 Native American Graves Protection and Repatriation Act. At the time, the US Army Corps of Engineers (USACE), who managed the federal land where the bones were found, decided in their favour. (They are entitled by the law to request, showing proper evidence of affiliation, but in this case they demanded)

     Eight scientists, including Bonnichsen, sued the federal government in October 1996 to block the reburial, and the case has been in the courts ever since.

     Shortly after the discovery, a select group of government scientists were allowed to study the remains. They concluded that Kennewick Man's ancestors came from Japan, Polynesia or south-east Asia. Co-plaintiff Loring Brace of the University of Michigan, Ann Arbor, says, "I'd like to get my calipers on it," as he, like many others, is eager to compare it with other skeletons from the same period.

     Concrete blocks
      In the years since Kennewick Man came to light, however, several additional skeletons more than 8000 years old have been found, which also seem distinct from later populations. Most believe they came to the Americas from south-east, and then north-east, Asia at the end of the ice age, between 11,000 and 14,000 years ago.

     It is not clear what Kennewick Man will add to this picture. "Until the research is done, you don't know," says Bonnichsen.

     Although the skeleton remains intact, the site where it was found did not. In April 1998 the USACE dumped concrete blocks onto the site, supposedly to protect it from erosion, then planted trees. That is likely to have obliterated any archaeological evidence as well as any organic material that could be carbon dated to confirm Kennewick Man's age. (Nefarious agenda?)

     The bones were found after erosion washed away the river bank, so it is unclear whether they had been buried. A brief examination of the bank showed no evidence of any graves or artefact's, says geoarchaeologist Gary Huckleberry of Washington State University in Pullman. "The only material we found was historic trash."

    But tribal opposition blocked him from digging to discover and analyse the stratigraphy, the order and position of the layers of remains which is a vital element in understanding the skeleton itself.

     Last week's decision upheld the ruling by the Ninth Circuit court in Oregon that the tribes had not clearly shown they are related to Kennewick Man, as required by the repatriation law. Either the federal government or the tribes could still appeal, but it is subject to approval by the Supreme Court which is far from guaranteed. No such appeal had been filed as New Scientist went to press.

source linkhttp://www.newscientist.com/article.ns?id=dn4666

     Earlier this month, the corps paid $160000 to cover the Kennewick Man site to ... of racial clashes and political correctness, of guilt, power and justice - http://www.wweek.com/html/cover042298.html

http://www.spiked-online.com/Articles/0000000053AD.htm - Kennewick Man: burying the truth about America's past

http://www.signonsandiego.com/news/science/20050824-9999-1c24caveside.html - In Washington state, Kennewick Man is the poster child of political wrangling.

http://archaeology.about.com/od/kennewickman/a/kennewick7.htm - Kennewick Man, Part 7: Science, Religion, and Politics (A volatile mixture, those three)

It is not surprising that others cannot make sense of all this, many of us here cannot either. It seems that no sooner is a course decided upon (NAGPRA), than something comes along to challenge the whole rationale of it. Do we change course? Nah, we struggle with it, muddle through it, mess things up, and make lawyers fat. One would think the the $160,000 spent/ wasted on destroying the K. man site could have been better used to study the bones and site to resolve the issue quickly and satisfactorily. Imagine if all the attorney fees had been thrown into that study also. Advancement of knowledge and understanding of our heritage certainly doesn't appear to be the focus. If you can make sense of it, please enlighten us, the frustration is breeding cynicism.

- Bart

[Gollum]

Hey Solomon,

I have been corresponding with the Chief Archaeologist for one of our National Forests. I will pose your question to him. I think it would be great to hear his views on the matter.

I will post his reply.

Best,

Mike

[Bart]

I found this useful advice, as it comes from a govt employee, and covers the entire spectrum of concerns.

- Bart

LAWS GOVERNING METAL DETECTING IN THE US

US Government Property: Down and Dirty

     The following sections discuss the most common types of US property and provide advice on whether or not you can legally detect them.  Many metal detecting activities on US property are governed by the Antiquities Act of 1906 or the Mining Law of 1872.  Of the US Government Properties that you can detect or prospect on, the administrating agency may require permits.  So as always, follow the Treasure Hunter's Code of Ethics and ensure you contact them for permission.  I do know for certain that you cannot relic hunt on any property owned by the US Government - which laws define as any manmade object more than 50 years old (ARPA - Archeological Resources Protection Act).  So what does that leave? 

     How does GOLD sound to you?  You can find it in almost every state, but if you don't know where, join the Gold Prospector's Association of America (GPAA).  They'll supply you with maps to their exclusive claims, know-how, motivation, and experience on public lands to be a successful nugget shooter or prospector.

THE GOOD

     National Forests - Yes, you can metal detect for items less than 50 years old, prospect for gold, and even file a claim in most forests except in specially designated historical areas.  Only detecting on designated historical sites will require a permit (don't bother trying - only the pros can get these).  Rangers have a very good reputation with being helpful and supportive.  Nevertheless, they are also concerned about historic sites, and may even have misunderstandings about sluicing and dredging when it comes to the environment.  Always talk to your district ranger before you head out, but don't always accept the first "no" you hear.  Here's a quick course in your average federal employee's work ethic (I am one):  If they don't know, its just easier for them to say HELL NO! 

     U.S. Army Corps of Engineers - "Title 36--Parks, Forests, and Public Property Chapter III--U.S. Army Corps Of Engineers Part 327--Rules And Regulations Governing Public Use Of Water Resources Development Projects Administered By The Chief Of Engineers. (d) The use of metal detectors is permitted on designated beaches or other previously disturbed areas unless prohibited by the District Commander for reasons of protection of archaeological, historical or paleontological resources.  Specific information regarding metal detector policy and designated use areas is available at the Manager's Office.  Items found must be handled in accordance with Sections 327.15 and 327.16 except for non-identifiable items such as coins of value less than $25.....A violation of the provisions of this regulation (Title 36) shall subject the violator to a fine of not more than $5,000.00 or imprisonment for not more than 6 months, or both."   

     Bureau of Land Management - Absolutely YES!  Detecting is allowed without a written permit on most of this land.  As of this writing, there was no requirement for permits unless you are in an historic area.  This federal agency within the Department of the Interior administers over 270 million acres nationwide and many people have claims on this land. 

THE BAD

     Military Reservations - Even if you happened to come across a military reservation that was in a gold producing area, and you received permission from the Installation Commanding General, you would still need to have business on the post just to enter the gates after 9/11.  For most of us, this is an impossible set of circumstances, but if you think you could fall into this category - more power to you.  Just make sure you schedule a class at Range Control so they can tell you where the artillery impact areas are!

"Indian" Reservations - Unless you are a member of the tribe, and you've read and adhered by all the various tribal regulations, DO NOT ATTEMPT!

& THE UGLY

     National Parks and Monuments - Absolutely not!  You can't even have a metal detector in the trunk of your car on this land.  I've often heard these guys referred to as the "Pull Tab Gestapo."  Don't even attempt to ask for written permission.  All they need is "the suspicion of" to fine and arrest you.  It doesn't matter if you want to hunt a campsite playground or just try to find your wife's cherished wedding ring of twenty years.  You can either Write your Congressman (add keywords: "Arbitrary and Capricious" or "Unconstitutional") or just thank the idiot who was "night-hawking" in the Shiloh National Battlefield for lighting the fire in the first place!

     Here's some of the black and white pertaining mostly to relic hunting on various US Government Property (pretty exciting stuff, I might add).  Keep in mind that federal agencies are empowered to make rules that have the full force of law.  What may be lawful one day, may not be in just 90 days (read the current Federal Register).  Always get permission no matter where you go, but the real bottom line is that it is MUCH easier to metal detect on private property than government.

Copying a line from the following list and Google searching them will get you to the text of the actual laws for each category.

Title 16, Chapter 1b ? Archaeological Resources Protection

Title 16, Section 431 ? National Monuments; Reservation of Lands;
Relinquishment of Private Claims

Title 16, Section 432 ? Permits to Examine Ruins, Excavations,
and Gathering of Objects; Regulations

Title 16, Section 433 ? American Antiquities

Title 18, Section 641 ? Public Money, Property or Records

Title 43, Section 1701 ? Federal Land Policy and Management Act

Title 30 - Mineral Lands and Mining

http://www.treasurefish.com/government.htm

[Bart]

LAWS GOVERNING METAL DETECTING, TREASURE HUMNTING & ARCHAEOLOGY IN THE US LAWS

" The nature of looting in the United States resembles that of many other countries. "

There is  money in it, the amounts referred to in the article are substantial. We also need to keep in mind that looters visit websites for locations.

- Bart

[Solomon]

Well, that's the view of somebody from the website you mentioned.

I do know for certain that you cannot relic hunt on any property owned by the US Government

This absolute statement then seems to be contradicted: "it is MUCH easier to metal detect on private property than government". Maybe I misunderstand National Forest, Military Reservations, National Parks and Monuments and Parks, Forests, and Public Property.

I see that Nighthawks are a problem in the USA, as in the UK. They have harmed us all.

Solomon

[Bart]

It seems to be, but in fact it is not, you can hunt certain relics on private property, such as Civil War relics. A violation occurs when the relics are associated with a grave.

- Bart

[Bart]

TITLE 16 > CHAPTER 1B > ? 470aaPrev | Next

? 470aa. Congressional findings and declaration of purpose

(a) The Congress finds that?

(1) archaeological resources on public lands and Indian lands are an accessible and irreplaceable part of the Nation?s heritage;

(2) these resources are increasingly endangered because of their commercial attractiveness;

(3) existing Federal laws do not provide adequate protection to prevent the loss and destruction of these archaeological resources and sites resulting from uncontrolled excavations and pillage; and

(4) there is a wealth of archaeological information which has been legally obtained by private individuals for noncommercial purposes and which could voluntarily be made available to professional archaeologists and institutions.

(b) The purpose of this chapter is to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands, and to foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals having collections of archaeological resources and data which were obtained before October 31, 1979.

? 470bb. Definitions

As used in this chapter?

(1) The term ?archaeological resource? means any material remains of past human life or activities which are of archaeological interest, as determined under uniform regulations promulgated pursuant to this chapter. Such regulations containing such determi?nation shall include, but not be limited to: ?pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal materials, or any portion or piece of any of the foregoing items. Nonfossilized and fossilized paleontological specimens, or any portion or piece thereof, shall not be considered archaeological resources, under the regulations under this paragraph, unless found in archaeological context. No item shall be treated as an archaeological resource under regulations under this paragraph unless such item is at least 100 years of age.

(2) The term ?Federal land manager? means, with respect to any public lands, the Secretary of the department, or the head of any other agency or instrumentality of the United States, having primary management authority over such lands. In the case of any public lands or Indian lands with respect to which no department, agency, or instrumentality has primary management authority, such term means the Secretary of the Interior. If the Secretary of the Interior consents, the responsibilities (in whole or in part) under this chapter of the Secretary of any department (other than the Department of the Interior) or the head of any other agency or instrumentality may be delegated to the Secretary of the Interior with respect to any land managed by such other Secretary or agency head, and in any such case, the term ?Federal land manager? means the Secretary of the Interior.

(3) The term ?public lands? means?

(A) lands which are owned and administered by the United States as part of?

(i) the national park system,

(ii) the national wildlife refuge system, or

(iii) the national forest system; and

(B) all other lands the fee title to which is held by the United States, other than lands on the Outer Continental Shelf and lands which are under the jurisdiction of the Smithsonian Institution.

(4) The term ?Indian lands? means lands of Indian tribes, or Indian individuals, which are either held in trust by the United States or subject to a restriction against alienation imposed by the United States, except for any subsurface interests in lands not owned or controlled by an Indian tribe or an Indian individual.

(5) The term ?Indian tribe? means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in, or established pursuant to, the Alaska Native Claims Settlement Act (85 Stat. 688) [43 U.S.C. 1601 et seq.].

(6) The term ?person? means an individual, corporation, partnership, trust, institution, association, or any other private entity or any officer, employee, agent, department, or instrumentality of the United States, of any Indian tribe, or of any State or political subdivision thereof.

(7) The term ?State? means any of the fifty States, the District of Columbia, Puerto Rico, Guam, and the Virgin Islands.

TITLE 16 > CHAPTER 1B > ? 470ccPrev | Next

? 470cc. Excavation and removal

(a) Application for permit

    Any person may apply to the Federal land manager for a permit to excavate or remove any archaeological resource located on public lands or Indian lands and to carry out activities associated with such excavation or removal. The application shall be required, under uniform regulations under this chapter, to contain such information as the Federal land manager deems necessary, including information concerning the time, scope, and location and specific purpose of the proposed work.

(b) Determinations by Federal land manager prerequisite to issuance of permit
A permit may be issued pursuant to an application under subsection (a) of this section if the Federal land manager determines, pursuant to uniform regulations under this chapter, that?

(1) the applicant is qualified, to carry out the permitted activity,

(2) the activity is undertaken for the purpose of furthering archaeological knowledge in the public interest,

(3) the archaeological resources which are excavated or removed from public lands will remain the property of the United States, and such resources and copies of associated archaeological records and data will be preserved by a suitable university, museum, or other scientific or educational institution, and

(4) the activity pursuant to such permit is not inconsistent with any management plan applicable to the public lands concerned.

(c) Notification to Indian tribes of possible harm to or destruction of sites having religious or cultural importance

     If a permit issued under this section may result in harm to, or destruction of, any religious or cultural site, as determined by the Federal land manager, before issuing such permit, the Federal land manager shall notify any Indian tribe which may consider the site as having religious or cultural importance. Such notice shall not be deemed a disclosure to the public for purposes of section 470hh of this title.

(d) Terms and conditions of permit

Any permit under this section shall contain such terms and conditions, pursuant to uniform regulations promulgated under this chapter, as the Federal land manager concerned deems necessary to carry out the purposes of this chapter.

(e) Identification of individuals responsible for complying with permit terms and conditions and other applicable laws

Each permit under this section shall identify the individual who shall be responsible for carrying out the terms and conditions of the permit and for otherwise complying with this chapter and other law applicable to the permitted activity.
(f) Suspension or revocation of permits; grounds

Any permit issued under this section may be suspended by the Federal land manager upon his determination that the permittee has violated any provision of subsection (a), (b), or (c) of section 470ee of this title. Any such permit may be revoked by such Federal land manager upon assessment of a civil penalty under section 470ff of this title against the permittee or upon the permittee?s conviction under section 470ee of this title.
(g) Excavation or removal by Indian tribes or tribe members; excavation or removal of resources located on Indian lands

(1) No permit shall be required under this section or under the Act of June 8, 1906 (16 U.S.C. 431), for the excavation or removal by any Indian tribe or member thereof of any archaeological resource located on Indian lands of such Indian tribe, except that in the absence of tribal law regulating the excavation or removal of archaeological resources on Indian lands, an individual tribal member shall be required to obtain a permit under this section.

(2) In the case of any permits for the excavation or removal of any archaelogical resource located on Indian lands, the permit may be granted only after obtaining the consent of the Indian or Indian tribe owning or having jurisdiction over such lands. The permit shall include such terms and conditions as may be requested by such Indian or Indian tribe.
(h) Permits issued under Antiquities Act of 1906

(1) No permit or other permission shall be required under the Act of June 8, 1906 (16 U.S.C. 431?433), for any activity for which a permit is issued under this section.

(2) Any permit issued under the Act of June 8, 1906 [16 U.S.C. 431?433], shall remain in effect according to its terms and conditions following the enactment of this chapter. No permit under this chapter shall be required to carry out any activity under a permit issued under the Act of June 8, 1906, before October 31, 1979, which remains in effect as provided in this paragraph, and nothing in this chapter shall modify or affect any such permit.

(i) Compliance with provisions relating to undertakings on property listed in the National Register not required

Issuance of a permit in accordance with this section and applicable regulations shall not require compliance with section 470f of this title.

(j) Issuance of permits to State Governors for archaeological activities on behalf of States or their educational institutions

     Upon the written request of the Governor of any State, the Federal land manager shall issue a permit, subject to the provisions of subsections (b)(3), (b)(4), (c), (e), (f), (g), (h), and (i) of this section for the purpose of conducting archaeological research, excavation, removal, and curation, on behalf of the State or its educational institutions, to such Governor or to such designee as the Governor deems qualified to carry out the intent of this chapter.

? 470ee. Prohibited acts and criminal penalties

(a) Unauthorized excavation, removal, damage, alteration, or defacement of archaeological resources

     No person may excavate, remove, damage, or otherwise alter or deface, or attempt to excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under section 470cc of this title, a permit referred to in section 470cc (h)(2) of this title, or the exemption contained in section 470cc (g)(1) of this title.

(b) Trafficking in archaeological resources the excavation or removal of which was wrongful under Federal law

     No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange any archaeological resource if such resource was excavated or removed from public lands or Indian lands in violation of?

(1) the prohibition contained in subsection (a) of this section, or

(2) any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.

(c) Trafficking in interstate or foreign commerce in archaeological resources the excavation, removal, sale, purchase, exchange, transportation or receipt of which was wrongful under State or local law.

     No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law.

(d) Penalties

     Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (b), or (c) of this section shall, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both: Provided, however, That if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500, such person shall be fined not more than $20,000 or imprisoned not more than two years, or both. In the case of a second or subsequent such violation upon conviction such person shall be fined not more than $100,000, or imprisoned not more than five years, or both.

(e) Effective date

The prohibitions contained in this section shall take effect on October 31, 1979.

(f) Prospective application

     Nothing in subsection (b)(1) of this section shall be deemed applicable to any person with respect to an archaeological resource which was in the lawful possession of such person prior to October 31, 1979.

(g) Removal of arrowheads located on ground surface

    Nothing in subsection (d) of this section shall be deemed applicable to any person with respect to the removal of arrowheads located on the surface of the ground.

http://www.law.cornell.edu/uscode/html/uscode16/usc_sup_01_16_10_1B.html

[Bart]

TITLE 16 > CHAPTER 1B > ? 470dd   Prev | Next

? 470dd. Custody of archaeological resources

The Secretary of the Interior may promulgate regulations providing for?

(1) the exchange, where appropriate, between suitable universities, museums, or other scientific or educational institutions, of archaeological resources removed from public lands and Indian lands pursuant to this chapter, and

(2) the ultimate disposition of such resources and other resources removed pursuant to the Act of June 27, 1960 (16 U.S.C. 469?469c) [16 U.S.C. 469?469c?1] or the Act of June 8, 1906 (16 U.S.C. 431?433).

     Any exchange or ultimate disposition under such regulation of archaeological resources excavated or removed from Indian lands shall be subject to the consent of the Indian or Indian tribe which owns or has jurisdiction over such lands. Following promulgation of regulations under this section, notwithstanding any other provision of law, such regulations shall govern the disposition of archaeological resources removed from public lands and Indian lands pursuant to this chapter.

[Bart]

TITLE 16 > CHAPTER 1B > ? 470ee   Prev | Next

? 470ee. Prohibited acts and criminal penalties

(a) Unauthorized excavation, removal, damage, alteration, or defacement of archaeological resources

     No person may excavate, remove, damage, or otherwise alter or deface, or attempt to excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under section 470cc of this title, a permit referred to in section 470cc (h)(2) of this title, or the exemption contained in section 470cc (g)(1) of this title.

(b) Trafficking in archaeological resources the excavation or removal of which was wrongful under Federal law

No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange any archaeological resource if such resource was excavated or removed from public lands or Indian lands in violation of?

(1) the prohibition contained in subsection (a) of this section, or

(2) any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.

(c) Trafficking in interstate or foreign commerce in archaeological resources the excavation, removal, sale, purchase, exchange, transportation or receipt of which was wrongful under State or local law

No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law.
(d) Penalties

Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (b), or (c) of this section shall, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both: Provided, however, That if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500, such person shall be fined not more than $20,000 or imprisoned not more than two years, or both. In the case of a second or subsequent such violation upon conviction such person shall be fined not more than $100,000, or imprisoned not more than five years, or both.



(e) Effective date

The prohibitions contained in this section shall take effect on October 31, 1979.

(f) Prospective application

     Nothing in subsection (b)(1) of this section shall be deemed applicable to any person with respect to an archaeological resource which was in the lawful possession of such person prior to October 31, 1979.

(g) Removal of arrowheads located on ground surface

     Nothing in subsection (d) of this section shall be deemed applicable to any person with respect to the removal of arrowheads located on the surface of the ground.

[Bart]

TITLE 16 > CHAPTER 1B > ? 470kk   Prev | Next

? 470kk. Savings provisions

(a) Mining, mineral leasing, reclamation, and other multiple uses

     Nothing in this chapter shall be construed to repeal, modify, or impose additional restrictions on the activities permitted under existing laws and authorities relating to mining, mineral leasing, reclamation, and other multiple uses of the public lands.

(b) Private collections

     Nothing in this chapter applies to, or requires a permit for, the collection for private purposes of any rock, coin, bullet, or mineral which is not an archaeological resource, as determined under uniform regulations promulgated under section 470bb (1) of this title.

(c) Lands within chapter

     Nothing in this chapter shall be construed to affect any land other than public land or Indian land or to affect the lawful recovery, collection, or sale of archaeological resources from land other than public land or Indian land.

[Bart]

TITLE 16 > CHAPTER 1B > ? 470mm   Prev | Next

? 470mm. Surveying of lands; reporting of violations

     The Secretaries of the Interior, Agriculture, and Defense and the Chairman of the Board of the Tennessee Valley Authority shall?

(a) develop plans for surveying lands under their control to determine the nature and extent of archeological resources on those lands;

(b) prepare a schedule for surveying lands that are likely to contain the most scientifically valuable archeological resources; and

(c) develop documents for the reporting of suspected violations of this chapter and establish when and how those documents are to be completed by officers, employees, and agents of their respective agencies.

[Bart]

TITLE 16 > CHAPTER 1B > ? 470ff   Prev | Next

? 470ff. Civil penalties

(a) Assessment by Federal land manager

(1) Any person who violates any prohibition contained in an applicable regulation or permit issued under this chapter may be assessed a civil penalty by the Federal land manager concerned. No penalty may be assessed under this subsection unless such person is given notice and opportunity for a hearing with respect to such violation. Each violation shall be a separate offense. Any such civil penalty may be remitted or mitigated by the Federal land manager concerned.

(2) The amount of such penalty shall be determined under regulations promulgated pursuant to this chapter, taking into account, in addition to other factors?
(A) the archaeological or commercial value of the archaeological resource involved, and
(B) the cost of restoration and repair of the resource and the archaeological site involved.
Such regulations shall provide that, in the case of a second or subsequent violation by any person, the amount of such civil penalty may be double the amount which would have been assessed if such violation were the first violation by such person. The amount of any penalty assessed under this subsection for any violation shall not exceed an amount equal to double the cost of restoration and repair of resources and archaeological sites damaged and double the fair market value of resources destroyed or not recovered.

(3) No penalty shall be assessed under this section for the removal of arrowheads located on the surface of the ground.

(b) Judicial review of assessed penalties; collection of unpaid assessments

(1) Any person aggrieved by an order assessing a civil penalty under subsection (a) of this section may file a petition for judicial review of such order with the United States District Court for the District of Columbia or for any other district in which such a person resides or transacts business. Such a petition may only be filed within the 30-day period beginning on the date the order making such assessment was issued. The court shall hear such action on the record made before the Federal land manager and shall sustain his action if it is supported by substantial evidence on the record considered as a whole.

(2) If any person fails to pay an assessment of a civil penalty?

(A) after the order making the assessment has become a final order and such person has not filed a petition for judicial review of the order in accordance with paragraph (1), or

(B) after a court in an action brought under paragraph (1) has entered a final judgment upholding the assessment of a civil penalty, the Federal land managers may request the Attorney General to institute a civil action in a district court of the United States for any district in which such person is found, resides, or transacts business to collect the penalty and such court shall have jurisdiction to hear and decide any such action. In such action, the validity and amount of such penalty shall not be subject to review.

(c) Hearings

     Hearings held during proceedings for the assessment of civil penalties authorized by subsection (a) of this section shall be conducted in accordance with section 554 of title 5. The Federal land manager may issue subpenas for the attendance and testimony of witnesses and the production of relevant papers, books, and documents, and administer oaths. Witnesses summoned shall be paid the same fees and mileage that are paid to witnesses in the courts of the United States. In case of contumacy or refusal to obey a subpena served upon any person pursuant to this paragraph, the district court of the United States for any district in which such person is found or resides or transacts business, upon application by the United States and after notice to such person, shall have jurisdiction to issue an order requiring such person to appear and give testimony before the Federal land manager or to appear and produce documents before the Federal land manager, or both, and any failure to obey such order of the court may be punished by such court as a contempt ?thereof.

[Bart]

New rule may help Native American tribes reclaim artifacts

Kevin Livelli
Columbia News Service
Apr. 12, 2007

   It's been nearly a dozen years since museums and federal agencies had to notify American Indian tribes about artifacts in their collections that might have been stolen from or lost by the tribes. But a new federal regulation may make it easier for the tribes to identify such objects.

   It was a hot and arid day in Pecos, N.M., when the elders and leaders of the Jemez Pueblo tribe welcomed an outsider into the fold: archaeologist William Whatley.

   Wearing colorful headbands, the old men sat down on the ground with Whatley. Then they began drawing images in the dust--images of bones, masks and pottery that had gone missing or been looted from the tribe. The elders implored Whatley to use his scientific knowledge to find the objects and help return them to the tribe. Not an easy task.

   That was nearly 20 years ago. Now, for other tribes searching for lost or stolen items, the process may get a lot easier.

   In mid-March, the Department of the Interior's National NAGPRA program, which helps carry out the Native American Graves Protection and Repatriation Act, announced a regulation requiring museums, universities and federal agencies in possession of Native American art and artifacts to provide new lists of their inventories and to share them with all federally recognized tribes within six months.

  The rule, which takes effect April 20, marks the first time in a dozen years that museums and federal agencies have had to share with tribes what is in their collections. This process may uncover many items missing for years, and it may make encourage tribes to start making repatriation claims to get their artifacts back.

   Repatriation is a process frequently fraught with tension between museums and tribes. Curators and scholars have an interest in preserving items for their educational and research value. For the tribes, reclaiming their objects can have a spiritual and cultural significance. But for some, it can lead to big business. A reclaimed object can establish a tribe's right to land, which it might want to develop--sometimes into a casino.

   "This promises to have a big impact for many tribes, especially those recently recognized by the federal government," said Dr. Rayna Green, a Cherokee and the curator and director of the American Indian program at the Smithsonian Institution. "And it's not just about cultural heritage. It's about money and land and property. This is America, after all."

   Yet even if the new rule helps tribes find many sacred objects, it won't necessarily help them overcome the many obstacles inherent in the repatriation process.

   "Tribes and museums approach decisions about sacred objects carefully," said Dr. Timothy McKeown, the senior program coordinator at the NAGPRA office and the man responsible for overseeing the entire repatriation process. "Repatriation is not just something you can do overnight."

   To begin with, tribes can struggle with issues of confidentiality when filing a claim. Many tribes, especially the Pueblo groups in the Southwest, have strict customs and rules about sharing tribal information with outsiders. Yet the law requires a tribe to reasonably establish its historical connection to a particular object.

   The Pueblo Indians of San Eldefanso made a claim in the mid-1990s but backed away when a dispute over the claim led to litigation in federal court. They didn't want to have to testify and reveal tribal secrets.

   Even putting together the claim can be a challenge. In many instances, a tribe's spoken language--like that of the Jemez Pueblo--isn't written down and can't be easily transferred into the legalese necessary to file a claim. And hiring lawyers costs money, something many smaller tribes lack.

   When claims are readied for filing, McKeown says tribes sometimes argue among themselves and with neighboring tribes over who has the right to proceed with that claim, who should act as spokesman and who will be responsible for the objects once they return.

   One such case currently under review by McKeown's office involves funerary objects and human remains that were recently found in Chaco Canyon National Park in New Mexico. Representatives from Pueblo, Navajo and Hopi tribes have all made competing claims for the same objects.

   The tribes' competing claims can stir feuds that go back hundreds of years. "It has to do with very old notions of clan and kinship and philosophical and religious ideas about death and the afterlife," Green said.

   "The issue is important because what you and I call artifacts are in their worlds living tribal members with the same rights as people," Whatley said.

   Once objects are successfully returned to tribes, one serious issue frequently remains. Many of the items belonging to tribes in the Iroquois Six Nations and the Hopi Nation are perishable--cornhusk masks or headdresses with feathers. When these items come into a museum's collection, they are often sprayed with arsenic or another pesticide for preservation.

   But upon return, the masks and headdresses are often worn in ceremonies, endangering the lives of tribal members and leaving the museum potentially liable for any resulting injury or illness.

   "That's something we in the museum world are trying to remedy," Green said. "We're looking now into alternative means of preservation, like flash freezing objects."

   Though the path to repatriation may take many years, Whatley says the end result will be worth the trouble for tribes. Over nine years, he has helped return thousands of objects to the Pueblo Jemez from museums around the country.

   Back in dusty Pecos, thousands of Indians gathered in 1999 to welcome home their "tribal members." Museum curators and staff were on hand too, watching from a respectful distance.

   Whatley, however, was by then a special guest of the tribe and had special access. He said he felt something that day that transcended science, money, land and all his pre-existing notions about Native American culture.

   The experience, he said, has stayed with him and opened his eyes to a new way of looking at life. "There's a lot more to this on the spiritual side than many non-Indians realize," he said.

http://www.azcentral.com/news/articles/0412repat-ON-CR.html.html

[Wopper]

Howdy History Hunters,

I just got done scanning through this topic, and I didn't see where anybody posted the actual laws pertaining to treasure in the United States. If somebody already has posted it, then forgive me for reposting it. The law reads as follows:

Treasure Trove

Literally, treasure found. Money or coin, gold, silver, plate or bullion found hidden in the earth or other place, the owner thereof being unknown. Called in Latin "thesaurus inventus" and in Saxon "fynderinga." Finder of treasure trove, is entitled thereto as against owner of the land where such treasure is found and all the world save the true owner, in absence of statue.

As I understand it, this law was adopted here in the US. from the old English law pertaining to treasure trove. The main problem with this law was the fact that a person could criminally tresspass on private property to recover treasure, and with no statute in place by law be the legal owner of the treasure. Unfortunately for treasure hunters, and extremely fortunate for private land owners, most if not all of the States have implamented laws protecting land owners.

Furthermore, if a treasure is 100 years old or older, the United States doesn't believe anybody is still alive to claim the treasure. Unless the original owner can be proving, then his or hers direct descendant's would be entitled to the treasure.

The following applies to treasure found on Federal land:
'
The United States as the land owner, has a right to a portion if not all the treasure found on its land. Furtermore, if you find anything with treasure other than treasure, including human remains, or a single artifact deemed an antiquity by a bona fide Archaeologist, the United States Government has a right to confiscate the entire treasure trove as an antiquities resource.

This last paragraph was, or is the main problem with the the treasure trove law here in the United States. In fact, it has fueled illegal activity and the destruction of antiquities. It is ridiculous to think that you can find one, without the other. They just go hand in hand with each other. Let me use a pirate treasure as an example. Pirates normally buried their treasure in a chest, the chest could be deemed an antiquity and therefore the treasure would be confiscated. It is also said that the unlucky soles who packed the chest and dug the hole, were killed and their bodies were thrown in with the chest to protect it. There is also the old saying, "dead men tell no tales," and the motto of the Hell's Angels "three can keep a secret if two are dead." So it is pretty safe to assume that you more than likely will find one or the other with treasure, and our good old government would confiscate it.

I said "was," because I believe there has been a precedence set with the Brother Jonathan shipwreck court case. The Judge in his ruling decided that the laws were very clear on what treasure is, and what antiquities are. The Judge separated the two, and awarded the finders the treasure and the State of California the antiquities. I do believe that anybody who locates treasure on Federal land, has a fighting chance in our courts.

Sincerely,

Wopper

[Tayopa]

HMMM,    What about federally controlled waters? what about the states declared rights?

As for winning a case, fine, but what is left after a legal court division and legal costs? 

Where is there any incentive to possibly spend years and money tracking down and recovering a treasure, Archaeological site,  ship, or lost mine?  Titled Archaeologists in general have neither the time, money, nor interest and inclination for this, sooo? 

In fact most recent finds or locations have come about by the individual having an interest in the project,  both intellectually and financially.  One begets the other no? The individual expends time, "talent", and money in the search, shouldn't he be rewarded appropriately?

This also brings up the question, should an accredited Archaeologist be morally/legally  bound to never keep anything in a / his private collection as a "conflict of public interests"?

In other words, if it is of sufficient value for one to consider it for his private collection then it must be equally or more valuable  in a public museum display for all to enjoy and learn from.  He/ she can go the museum to study it the same as anyone else.

This comes from one that has seen some fantastic private collections in the homes of his Archaeological friends, who seem to consider themselves as privileged  above the law by reason of their title...

The line forms on the right --->

A frustrated Don Jose de La Mancha

[Wopper]

Howdy Don Jose,
 
I understand your frustration.
 

What about federally controlled waters?

 
So long as the shipwreck in question is not a "man of war," and you acquired the rights of any insurance company that might have a claim, you as the finder would without a doubt be awarded the treasure. Take a look at the USS Central America shipwreck case.
 

what about the states declared rights?

 
When it comes to Federal lands or waters, the states have no rights.
 

Where is any incentive? to possibly spend years and money tracking down and recovering a treasure or lost mine?

 
A treasure legally recovered and marketed correctly, brings in many times the melt value. So even if you had to share a portion with the state or Federal Government, it would be well worth the trouble to spend the years and time it takes to rightfully be awarded a treasure. One also should keep in mind the value of the story behind it. The book, documentary, and possible movie rights, could in all likelihood be worth more than the treasure itself.
 
Sincerely,
 
Wopper

[Tayopa]

OHIO:

First) the states water rights do have a bearng, witness the fiasco in Florida. and the East cost states.

Second) just how "long" are' an heirs rights effecitve?  Especially if If they have no knowlege of it's existance unlil after it has been recovered  nor have made any physical effort at a recovery ---??

Third ) Legally recovered and marketed?  Between the first and the later, many many years and expenses can pass.

At the moment  Britland seems to have the most logical answer..

Don Jose de La Mancha

[Wopper]

My dear friend Jose,
 
Please take a seat and try to relax a little bit, or better yet, go flop in your hammock with a bunch of grapes. Hopefully, Luchi is still around to wait hand and foot on you.
 

First) the states water rights do have a bearing, witness the fiasco in Florida. and the East cost states.

 
The Brother Jonathan case was in state waters. Even though the finders had an agreement to split the treasure with the state, the state decided to try to confiscate the entire treasure as an antiquities resource. The case went to trial, and the judge found in favor of the finders. The problem with most of the shipwrecks off of Florida, is they are considered Spanish man of wars. As such they are protected under new laws or agreements between the US., England, and Spain.
 

Second) just how "long" are' an heirs rights effective? Especially if If they have no knowledge of it's existence until after it has been recovered nor have made any physical effort at a recovery ---??

 
An heirs rights are protected indefinitely, so far as they are a direct descendant and it can be proven. Which means that documentation has to be found with, or exist for the treasure in question. I don�t know how this would come into play as far as a Jesuit, or church treasure would be concerned. Jesuits were sworn to celibacy, as such they would have no direct descendants.
 

Third ) Legally recovered and marketed? Between the first and the later, many many years and expenses can pass.

 
Yes, that is true. I myself encourage people to go the legal route, because to do the alternative is just plain wrong and sheds a bad light on treasure hunters and treasure hunting as a whole. In your case I can understand your frustration. Being 185 years of age you might not live long enough to hear the judges verdict, but what about your direct descendants being able to enjoy the fruits of your labor?

Sincerely,

Wopper

[Wopper]

Howdy Tayopa,

You have opened a whole nother can of worms with the following:

This also brings up the question, should an accredited Archaeologist be morally/legally  bound to never keep anything in a / his private collection as a "conflict of public interests"?

In other words, if it is of sufficient value for one to consider it for his private collection then it must be equally or more valuable  in a public museum display for all to enjoy and learn from.  He/ she can go the museum to study it the same as anyone else.

This comes from one that has seen some fantastic private collections in the homes of his Archaeological friends, who seem to consider themselves as privileged  above the law by reason of their title...

It would appear to be an accepted practice within the circles of licenced, or accredited Archaeologists. I don't know why that is, maybe they consider it acceptable to take home a memento or two from each dig they are involved with. Does that make it right, or justify it? Absolutely not. The collecting of artifacts is supposed to be done for either a museum collection, or for academic study. It is a known fact that Universities and museums across the country are out of storage room, and have more artifacts in their inventories then they could ever hope to display. But don't you or I dare touch a thing that we may come across, even if there is little to no chance that it will ever be collected by a licenced Archaeologist.  It is no wonder that a lot of people refer to them as licenced grave robbers.

Sincerely,

Wopper

[Bart]

Greetings;

Wopper wrote " The Judge separated the two, (treasure and antiquities) and awarded the finders the treasure and the State of California the antiquities."

Was this a circuit court or a Federal Court judge? I am not familiar with the story, if you could post it or a summary, that would be appreciated. My take on it is if it is a Fed, judge, a precedent may well have been set, but judges have wide discretion in any rulings, and no two cases are ever identical.

Bart

[Wopper]

Howdy Bart,

I wrote my original post from memory of an article I had read in the "Treasure Hunter Confidential News Letter," years ago. I just found the actual court case on line, and it differs from what I wrote. Here is a brief of the case, which can be found here. http://acuaonline.org/legupdates/brojonCC.html

The practical effect of the decision and the order of the Supreme Court was to return the case to the Federal Court in San Francisco for a full trial. In the words of the Court, �the judgment of the Court of Appeals assuming jurisdiction over this case is affirmed, its judgment in all other respects is vacated, and the case is remanded for further proceeding consistent with this opinion� (California vs Deep Sea Research, Inc (96-1400) 102 F. 3d 379). Rather than proceeding with a full trial and its inherent cost in time and money, the parties sought a settlement. After a number of months, an agreement evolved which was eventually confirmed by the Court on March 11, 1999. The State received title to the ship and all the non-monetary artifacts. It also received 200 of the gold coins. The remaining 1007 coins were granted to Deep Sea Research as a salvage award. DSR will also be given a State permit to continue recovery operations under State supervision.

Here is another link. http://supct.law.cornell.edu/supct/html/96-1400.ZS.html

I will try to find the original article and post it.

Sincerely,

Wopper

[Wopper]

Howdy Bart,

Here is the original story that appeared in Treasure Hunter Confidential Volume 15, Number 3 March, 1999 I must have a slight case of CRS. I some how had it in my mind, or read in another magazine that there was a Court decision not a settlement. I'll be the first to admit that I was wrong, and I thank you for making me revue the story.

Sincerely,

Wopper

[Bart]

Thanks Wopper;

It is essentially as you stated earlier. Something tells me that artifacts and coinage are about to be redefined under Cal. law. I saw no mention of Wells Fargo, insurers, or heirs/antecedents receiving anything, or even being mentioned. Have you heard any reason why the State received some of the coins? What was that all about? Does DSR's acquiescing to that somehow set a precedent of some sort for the future? And why must these things be adjudicated over and over? It is enough to take the wind out of a salvor's sails.

Bart

[Wopper]

Howdy History Hunters,

Bart asked the following questions:

Have you heard any reason why the State received some of the coins? What was that all about?

If my memory serves me correct, DSR agreed to give the State of CA. 20% of any treasure recovered for DSR being given a State permit to continue recovery operations under State supervision.

why must these things be adjudicated over and over? It is enough to take the wind out of a salvor's sails.

Each case is unique, and the laws can apply differently. In the Brother Jonathan case, the salvers purchased the title to the ship and its contents from insurance companies that had paid claims. In the case of the S. S. Central America, the Columbus-America Discovery Group failed to do so leaving themselves open to legal claims by the insurance companies. I believe that Spain now claims ownership of all their shipwrecks, no matter where they are located in the world.

The only thing that is certain is the fact that the treasure salvage business is complicated in every aspect, from the search, recovery, and ownership.

Sincerely,

Wopper