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The law as mediator between archaeology and collecting

Patty Gerstenblith

Distinguished Research Professor of Law, Director of the Center for Art, Museum and Cultural Heritage Law, DePaul University

Cite this as: P. Gerstenblith 2013 'The law as mediator between archaeology and collecting', Internet Archaeology 33. http://dx.doi.org/10.11141/ia.33.10

The Divide between Archaeologists and Collectors | Limits on Collecting: The View from the United States | Is There a Way Forward Together?

The goal of the law is to encourage behaviour that is beneficial to society and to deter conduct that is detrimental, including conduct that imposes negative externalities (or costs) on others. One such detrimental activity is the looting of archaeological sites, which confers economic benefit on the individuals involved in the network of looters and smugglers, but which causes detriment to society through the loss of the knowledge that could otherwise be gained from the proper excavation of archaeological sites and the information that they contain (Gerstenblith 2007). Yet different nations have adopted different legal rules to respond to the problem of unscientific exploration. The articles in this collection address from diverse perspectives the divide between archaeologists and collectors of artefacts, as epitomised by the metal detecting community, and, perhaps more importantly, the question of whether this divide can be bridged.

I. The Divide between Archaeologists and Collectors

Tensions between archaeologists and collectors (defined here, for the purpose of this essay, as those who intentionally and actively recover artefacts in an unscientific manner from the ground, rather than those who buy cultural objects on the market) have increased over the past several decades. The divisions between these two communities are often not well understood by either archaeologists or collectors, each of whom can arguably trace the origins of their vocation and avocation to the same roots. In order to understand how the divide between archaeology and collecting developed, it is worth looking briefly at the history of archaeology.

Excavations for the purpose of retrieving ancient works of art had been carried out for centuries, particularly in Italy where ancient Roman sculptures were virtually at hand and required little digging. However, at the turn of the 19th century, archaeology as a science developed its basic principles of stratigraphic excavation derived from the work of geologists and palaeontologists who realised that different strata represented different time periods and that most objects within a particular stratum formed a more or less chronologically unified corpus.

Some excavators of the 19th century, such as Heinrich Schliemann who excavated at Troy, Tiryns and Mycenae, were little better than treasure hunters. This is not intended as a criticism, because methods of the 19th century should not be judged by the discipline's standards of the 20th or 21st century. Trigger warns that in the study of the history of any discipline, including that of archaeology, one must avoid presentism—that is, 'judging past developments in terms of the current practices and beliefs of the discipline' (Trigger 2006, 26). Yet, at the same time, other archaeologists were developing the scientific bases for field excavation techniques. These pioneers included the French geologist Jacques Boucher de Perthes, who found Palaeolithic stone tools at the site of Abbeville in the Somme Valley of northern France in his excavations carried out between 1837 and 1860. General Augustus Lane Fox Pitt Rivers excavated on his estates in England in the 1880s and 1890s and applied Darwinian evolutionary principles to his understanding of his collection of artefacts to demonstrate human progress.

The British archaeologist and Egyptologist William Flinders Petrie brought scientific methodology, based on careful measurements of ancient structures, to his work in Egypt over several decades beginning in 1880. He developed a typology of Egyptian finds that provided the basis for creating a relative chronology to date finds throughout the Near East. Finally, in the mid-20th century, the British archaeologists Sir Mortimer Wheeler, working first in England and later in India, and Dame Kathleen Kenyon, working at Jericho and Jerusalem, systematised field techniques based on a grid system, which became known as the 'Wheeler-Kenyon' method.

In the middle of the 20th century, the practice of archaeology underwent another revolution through the adoption of scientific testing methods, such as radiocarbon dating used for achieving an absolute chronology. Today, far more sophisticated scientific tests have been added to the tool-kit of archaeology and require ever more painstaking methods of retrieval of information, applying not only to human material cultural remains but also faunal and floral remains that are found in context with the cultural remains. In the past few decades, archaeology has expanded further through the adoption and adaptation of scientific theoretical models by which archaeologists attempt to reach deeper understandings and explanations for patterns of past human life.

As Ferguson so well points out, contemporary archaeology now recognises, in addition to the use of scientific methodology, different sources of archaeological data. In her example, it was realised only in the 1970s that battlefields contain usable archaeological and historical information and that the careful retrieval and recording of artefacts even from the topsoil could add immeasurably to our understanding of historical events. Thus it is not only the adoption of scientific techniques but also an evolution in our understanding of how archaeology itself should be practised that has changed our way of thinking about how artefacts should be recovered. The irony is that the more information archaeology can retrieve from the scientific recovery of artefacts, the more that is lost when artefacts are removed in an unscientific manner. Thus, the conflict between archaeology as grounded in scientific methodology and the unscientific retrieval of artefacts through metal detecting and similar means has intensified over the past several decades.

2. Limits on Collecting: The View from the United States

One argument that is repeatedly made in this debate, either explicitly or implicitly, is that one nation's method of handling the issue of collecting artefacts from the ground is superior to the method adopted by another nation. The method that comes in for the greatest criticism is the use of national vesting laws. Many nations that are rich in archaeological heritage have adopted laws that vest ownership of all ancient artefacts that are more than a certain age, regardless of whether they were found on public or private land, in the nation. Such laws typically apply to artefacts that are still buried in the ground at the time the ownership law is enacted. These nations have made the determination that the best way to protect the objects and their original contexts is by denying the finder and any subsequent transferee title to such objects as a way of reducing the economic incentive to loot sites (Gerstenblith 2009).

Other nations, such as England and Wales, Scotland and the United States, take different approaches, often for historical legal reasons or for cultural historiographical reasons—that is, nations vary in how they view the past and which elements of the past are considered more significant to modern society. Many in the collecting community, particularly among coin collectors, advocate that the Portable Antiquities Scheme is one that should be universally adopted by all nations. Yet, these different systems are not and should not be considered superior or more advantageous than a national ownership system.

It is clear from the diversity of legal systems adopted within nations that share a legal heritage that the system adopted by a particular nation to regulate the recovery of ancient artefacts depends on the circumstances of that nation, the degree of public support for a regulatory system, and the types of artefacts at issue. In other words, one size does not fit all. The United States is a good example of this and the regulatory scheme adopted for handling archaeological resources bears several unique characteristics which are, in large measure, the result of particular elements of the United States legal system.

The United States shares in its legal framework the law of finds, inherited from the English common law. However, the traditional rules of treasure trove were abandoned in the United States after the Revolution. Court decisions of the early 20th century, which varied considerably among themselves, awarded treasure trove to the finder, even if the finder had committed trespass in the process of obtaining it (Cunningham 2004, 47-48). To the extent that the United States' version of the treasure trove rule encourages trespass, it has come under considerable criticism as providing an incentive to law-breaking. One commentator has noted that any 'benefits are outweighed ... by the costs the finders keepers rule imposes on society by forcing the landowner to guard his land and by giving the finder the incentive to outwit the landowner' (Izuel 1991, 1690). One court stated, in rejecting the treasure trove rule, 'the rule of treasure trove is of dubious heritage and misunderstood application, inconsistent with our values and traditions' Corliss v. Wenner, 34 P.3d 1100, 1105 (Idaho Court of Appeals 2001). The default rule in the United States, in the absence of statutory regulation, is that archaeological objects, which most typically would be found buried in the soil, are considered to be embedded property and therefore belong to the landowner. For example, in Allred v. Biegel, 240 Mo. App. 818 (1949), the court held that a Native American canoe was classified as embedded, not lost, property and therefore belonged to the landowner, not the finder.

The looting of archaeological sites is a world-wide problem, one from which the United States is not immune. From the beginning of the 19th century, Native American sites, as well as historic sites of the Colonial period, Civil War and more recent past, have fallen victim to looting for the purpose of obtaining saleable objects (Davis 1998). This is not to deny that development, construction projects, and agricultural activities also pose threats to the preservation of sites. During the past century, the United States has developed an extensive legal regime at both the federal and state levels to provide means of preserving these sites.

A difficulty in the protection of archaeological resources in the United States is the division of legal authority and responsibility between the federal and state governments. The federal government, which is a government of limited authority, provides a unitary regulatory scheme only for public lands, including Native American tribal lands and lands owned or regulated by the federal government, and for interstate and international commerce in archaeological resources. State governments have responsibility for state-owned and controlled lands and can indirectly control activity on private land, primarily through zoning and other land-use regulations but are limited by the US Constitution's Fifth and Fourteenth Amendments, in particular the Takings Clause. While archaeological resources located on private land are therefore left relatively unregulated, those minimal state government protections for archaeological and cultural resources on private land have so far withstood constitutional challenge.

Beginning in the 1870s, interest in North American archaeology and anthropology started to flourish. Surveys of sites in the Southwest not only revealed the destruction and looting of sites but also stirred interest, along with the development of ethnographic and anthropological study of Native Americans, in the market for the products of that looting. Pothunters vandalised large numbers of ancient dwelling sites and cemeteries for personal gain. Some, such as the Wetherill brothers, profited by outfitting major museums, including the American Museum of Natural History in New York. Others took their collections back to Europe, thereby arousing the American public over loss of its cultural heritage.

While interest in the United States in protecting natural sites was always stronger than the interest in preserving cultural sites, by the early 20th century, growing public awareness of and academic interest in Native American sites in the Southwest led to two major developments: enactment of the Antiquities Act of 1906, Ch. 3060, 34 Stat. 225, codified at 16 U.S.C. §§431–433, and the designation of Mesa Verde as the first Native American site protected as a national park. The Antiquities Act provides that the President may set aside as national monuments 'historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest' located on lands owned or controlled by the federal government (including Indian tribal land, forest reserves, and military reservations) and penalises the destruction, damage, excavation, appropriation, or injury of any historic or prehistoric ruin, monument or object of antiquity without a permit.

The effectiveness of the Antiquities Act suffered from years of lax enforcement and relatively minor penalties, leading to enactment of new federal legislation, the Archaeological Resources Protection Act of 1979 (ARPA ), 16 U.S.C. §§ 470AA-470HH. ARPA applies to archaeological resources defined as, 16 U.S.C. §470BB:

any material remains of past human life or activities which are of archaeological interest, … includ[ing], but not … 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… No item shall be treated as an archaeological resource under regulations under this paragraph unless such item is at least 100 years of age.

Both the Antiquities Act and then ARPA, within the constitutional limits of Congressional authority, function as national ownership laws, vesting ownership of archaeological resources found on federal and Indian lands in the national government. The Native American Graves Protection and Repatriation Act provides exceptions for Native American human remains and cultural items discovered after 1990 whose ownership vests in lineal descendants or in a Native American tribe. ARPA requires that anyone who wishes to excavate or remove archaeological resources must first obtain permission from the federal government. It prohibits and criminalises trafficking in archaeological resources obtained in violation of ARPA, as well as interstate and international commerce in any archaeological resources taken or held in violation of federal, state or local law.

Two provisions of ARPA are worth noting in the context of the status of collectors. One is that ARPA exempts the collection of arrowheads found on the surface from its penalties. The legislative history that accompanied ARPA's enactment makes clear that Congress wished to avoid criminalising conduct in which many people engaged, including young people, as a hobby, and that most people would think was not inherently wrong. For example, Congressman Udall, one of the bill's sponsors, stated:

Certainly, no sponsor of this legislation and probably no reasonable person would want some overzealous bureaucrat to arrest a Boy Scout who finds an arrowhead along a trail or a purple bottle out in the desert … The thrust of this act is not to harass the casual visitor who happens to find some exposed artefact, but to stop the needless, careless, and intentional destruction of archaeological sites and organized and intentional theft of the valuable remains of previous civilizations (125 Cong. Rec. H17391, 17394 (Jul. 9, 1979)).

In a similar vein, Senator Domenici stated:

As you might suspect there are many innocent people who would be adversely affected; Boy Scouts, … civic groups, and the like, who because of a lack of information on the subject of ownership might unknowingly enter onto public lands with really no malice or knowledge whatsoever. (96 Cong. 96-26 (1979)).

Another exception applies to certain types of metal finds. It is perhaps worth noting that finds made of metal, such as coins, belt buckles, buttons and munitions, have a more limited history than in Europe and would date only to the Colonial period and later. Concentrations of such remains would most likely be found on battlefields from the Revolutionary War and the Civil War, which have tended to receive special protection, many being dedicated as national parks, monuments and cemeteries where all prospecting is prohibited. The particular concern for the use of metal detectors as an aspect of illegal looting of sites therefore seems less acute in the United States than in other nations with an older history of metal use. This point is supported by the regulations that interpret ARPA. In elaborating on the definition of archaeological resources, coins and bullets are specifically exempted by the relevant regulation, unless these are 'found in a direct physical relationship with archaeological resources' 43 C.F.R. § 7.3 (a)(4)(ii).

Both of these provisions indicate a concern not to criminalise activity that many people would consider to be legal and, in all likelihood, harmless. Whether this accords with reality, in that removal of even relatively common and low-priced objects may disturb the archaeological and historical record, is questionable. The legislative history indicates that this compromise to accommodate a certain level of private prospecting for finds was necessary in order to achieve the larger goal of ARPA's enactment. Education of the public to understand, as Campbell points out, that historical and cultural value is not determined by market value is necessary if any broader legislative effort to achieve preservation were to be undertaken.

One might note the irony that the United States permits such objects to be retrieved without either requiring or providing a voluntary means for recording of such objects. In that sense, ARPA provides less protection than either the Scottish treasure system or the Portable Antiquities Scheme where at least information about a find-spot may be recorded and made available for future research. Add to this that there is little protection for archaeological sites and finds found on private land, other than Native American burials which are protected in approximately half of the states, and one can see that the protection of archaeological resources in the United States is the product of a patchwork quilt that leaves many gaps and allows a market in artefacts from private land to flourish. The legality of trade in artefacts from private land also imposes a significant burden on law enforcement in that the government has the burden of proving that an artefact originated from federal, rather than private, land before it can claim a violation of ARPA or it must catch the looter in the act of looting a site. This makes enforcement of ARPA's restrictions on collecting on public land a significant challenge.

3. Is There a Way Forward Together?

Several of the essays in this volume address the more difficult question of whether archaeologists and collectors can work together in recovering artefacts from the ground. These articles suggest that there are possibilities for meaningful collaboration. On the one hand, archaeologists, for the most part, do not have the funding, the time, or the human resources to recover artefacts from large swathes of land. In particular, Ferguson's discussion of the problems of recovery from battlefield sites makes this point well. Gransard-Desmond points out that non-professional archaeologists are less bound by their academic traditions and are better able to make use of new technologies in recovery efforts. On the other hand, the collector, regardless of whether motivated by an economic incentive or simply by the love of owning and possessing ancient artefacts, is undoubtedly doing irreversible harm to the archaeological and historical record.

The goal is not the retrieval of quantities of artefacts from the ground, but rather their recovery in a scientific manner that permits reconstruction and understanding of the past. Without metal detecting and field walking, recovery will undoubtedly proceed at a slower pace, but we must recognise that this is not a problem. Artefacts left in the ground (and even in the topsoil, as Ferguson demonstrates) remain available for future research. An artefact removed without adequate recording of its context is not. And even though the argument is made that artefacts that are not removed from the ground are in danger due to erosion and agricultural and building activities, these forces tend to work primarily on or near the surface. If metal detecting activity was also limited to the near-surface, then it would pose less of a threat to the scientific recovery of artefacts that are still in situ, within their archaeological context. However, as technology improves and metal detectors are able to detect objects further and further underground, this activity undoubtedly poses increased risks to our understanding of the past.

Another challenge is that while the Portable Antiquities Scheme in England and Wales encourages the reporting of finds that do not qualify as treasure, finders are not required to report and they do not necessarily report their finds (Redmayne and Woodward). The vagaries in the definition of what constitutes 'treasure' in the system of England and Wales, often dependent on the presence of precious metals (that is, gold or silver), result in inconsistencies that do not relate to the cultural or historical value of an object. An example of this is the Crosby Garrett helmet, a Roman cavalry helmet in remarkably good condition that was found by a metal detectorist in 2010. Because it was composed primarily of copper, it did not qualify as treasure and its findspot did not have to be reported. As a result, there is much that is not known about its discovery and whether it might have been possible to recover associated materials.

It is unclear what indirect incentives the Portable Antiquities Scheme offers to encourage reporting, and there do not seem to be reliable or comprehensive statistics as to the success of those incentives that may exist. Even where reporting is required, as in Scotland, there is some track record of wilful non-reporting of finds (Campbell). Despite the liberality of the English system, which is often vaunted among coin collectors as a model to be emulated because it encourages compliance with the law by permitting finders to retain their finds legally and thus allows those finds to enter the market legally, looting of sites, known as 'nighthawking', undoubtedly persists among coin collectors (Wilson and Harrison). Thus, what value metal detecting and other methods of finding objects, such as field walking, bestow through an increased number of found objects, these benefits are limited or even outweighed by a failure to follow the law or to comply voluntarily.

There are two ways in which collectors of artefacts may be brought to a point where they will contribute more to knowledge than they remove without changes in the legal regulation of their activity. One of these is through greater education of those involved in metal detecting and other forms of collecting so that they gain a better understanding of the implications of their activities on the archaeological and historical record. This would involve explanation that historical value is not the same as market value and that the findspot of every artefact, no matter how 'common' or inconsequential it may seem, might carry significance. It is likely that this would encourage the voluntary reporting of objects and the willingness to involve the professional archaeological community at an earlier stage after a find of potential historical significance is made.

A second means is incorporating metal detectorists and other finders into the archaeological process. Ferguson explains well that metal detectorists can become part of an archaeological team, particularly where large-scale field survey is required. In many cases, the metal detectorist and field walker will have considerable skills that would be easily translated into archaeological fieldwork. Some excavation projects use volunteers, such as the site of Gabii in Italy, mentioned by Redmayne and Woodward, while community archaeology has become popular in many parts of the world as a way to encourage local involvement. The Earthwatch Institute places volunteers on scientific projects throughout the world, including archaeological, conservation and environmental projects.

Campbell points out that it is wrong to create a system that benefits a dealer or collector in their personal capacities. He also argues that archaeology should not be prioritised above private interests for its own sake or as 'just another interest group' but rather because of the public benefit that is bestowed through the understanding, interpretation and broader access that it confers. Thus, he sees the law as using 'archaeology to articulate a broader ideal of common cultural heritage over other, more individual interests'.

I would certainly agree with this statement but a few caveats must be kept in mind. If archaeology is viewed as bestowing this public benefit, then it must 'earn' its status through use of state-of-the-art, scientific methodologies; policing of the profession; legally mandated requirements as to qualifications for archaeologists who are granted licenses to excavate, requirements to publish their research, requirements to raise funds for the proper curation of their finds and protection of sites when they are not being excavated, and requirements to share their research with the public in ways that are accessible to the public. This means publication in academic journals but also publication in more general literature and through traditional and non-traditional media outlets.

Even with this caveat in mind, I believe that the scientific recovery of artefacts is crucial to increase our understanding of ourselves and of our past. While I would not argue that all nations should adopt the same legal treatment for the process of recovering artefacts from the ground, all systems should have the same goal of fostering preservation of the archaeological and historical record. Whether metal detecting and other forms of unscientific recovery will continue as legally sanctioned activities may depend, in large measure, on whether they can evolve to incorporate the goals of scientific recovery to a greater extent so that, instead of detracting, they contribute to the accumulation of knowledge.

Bibliography

Cunningham, R. 2004 'The twilight of Treasure Trove' in J. Richman and M. Forsyth (eds) Legal Perspectives on Cultural Resources. Walnut Creek, CA: AltaMira Press, 37-60.

Davis, H. 1998 'Facing the crisis: looting in the U.S.', Archaeology (July 1), available at: http://www.archaeology.org/online/features/loot/index.html.

Gerstenblith, P. 2007 'Controlling the international market in antiquities: reducing the harm, preserving the past', Chicago Journal of International Law 8 (1) , 169-95.

Gerstenblith, P. 2009 'Schultz and Barakat: universal recognition of national ownership of antiquities', Art Antiquity and Law 14, 29-57.

Izuel, L. 1991 'Property owners' constructive possession of Treasure Trove: rethinking the finders keepers rule', Univ. Cal. Los Angeles Law Review 38, 1659-1702.

Trigger, B.G. 2006 A History of Archaeological Thought. Cambridge: Cambridge University Press.

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