Richard Thornton | May 9, 2017 | 23
Do archaeologists own the artifacts obtained from your property?
Over the past few years, the People of One Fire has received numerous complaints from families throughout the Southeast that archaeologists, universities and state agencies excavated artifacts from their property or “borrowed” artifact collections from their owners then refused to return them . . . claiming that federal or state laws made the artifacts the property of new owner. However, these are not the only situations, where owners of Native American artifacts complained that their personal property had been illegally taken from them.
- The owner of the Kenimer Mound in the Nacoochee Valley of Georgia said that she signed an agreement with the Department of Anthropology of the University of Georgia in 1997, allowing a team of archaeologists to enter her posted property (No Trespassing signs) and carry out a topographic survey of the Kenimer Mound. The agreement specifically forbade any archaeological excavations on her property. The archaeologists ignored the legal agreement and dug test pits on the mound and on the grounds around the mound. They refilled the pits with soil, but then carried the artifacts back to the University of Georgia and designated them state property. Artifacts from the Kenimer Mound are now in storage at a state-owned facility.
- When the owner of the Kenimer Mound learned about the excavations, she complained to the university. The professors claimed that illegal artifact poachers had dug the pits and the university had no Kenimer artifacts in its possession. However, when the UGA Department of Anthropology published the report on the Kenimer Mound, the text specifically mentioned excavations and included verbal descriptions, drawings and photographs of the artifacts retrieved. In other words, the professors lied and also committed the crime of “Theft by Taking.”
- A somewhat different complaint was from two gentlemen in Union County, GA, who stated that a group of Cherokees from North Carolina came up to their booths with sheriff’s deputies at an arts and crafts fair near Blairsville, GA . . . then stated that by federal law, their artifacts belonged to the Cherokee People . . . even though the artifacts came from several parts of Georgia, not North Carolina . . . mostly where the Cherokees never lived. The deputies caved into the North Carolinian’s demands and pressured the rightful owners to give up their artifacts to the visitors or face going to court.
Readers might be surprised to learn that this is an area of law that licensed architects and civil engineers deal with regularly. You see, under American Common Law and all state laws, a Native American artifact on the surface or underneath your property is considered no different than a Civil War cannon shell, a tree or a rock containing a gold vein. Unless the real estate owner has specifically assigned ownership or use of a particular component of his or her property to another party, it remains a component of the real estate. In other words, unless you signed a contract with an archaeologist, educational institution or government agency, which specifically allowed the other party to excavate on your property and keep the artifacts uncovered, the artifacts remain your property. The only exceptions are skeletons and grave offerings. We will get to that later.
If you loan artifacts to an archeologist or university anthropology department, you must state in writing that this is a loan, not a gift. Otherwise the recipient can claim in court that the artifacts were a gift. In fact, this is an excellent rule to follow for when you allow any person, institution or government agency access to your property. Always put all aspects of a permission to access your property in a legal agreement . . . signed and witnessed according to the laws of your state. Include clauses, which specifically state that any artifacts or valuable minerals obtained while (for example – digging a ditch for a trunk sewer) remain the property of the real estate owner. Otherwise, the government agency, which obtained the utility easement can claim the artifacts. It is wise to let a professional lawyer be involved with such an agreement.
The Native American Graves and Repatriation Act of 1991 (NAGPRA) did assign ownership of human remains and accompanying grave offerings to federally-recognized tribes . . . IF (and that’s a big if) they could prove the skeletal remains were of their ancestors. There is a legal procedure for determining the identity of human remains, which includes law enforcement officers, county coroners, professional archaeologists, state Native American affairs commissions and the Tribal Historic Preservation Officers of federally recognized tribes.
No individual Native American or federally-recognized Native American tribe has the legal right to seize the personal property of an artifact collector. Either an individual or a tribe may file a complaint to a state or federal law enforcement agency stating that an individual or institution has violated NAGPRA. However, it is up to a district attorney’s office or the US Department of Justice to determine if there is evidence of a law being broken. In fact, there have been numerous cases in which the FBI staged raids to seize artifact collections as criminal evidence. However, these raids and seizures were the result of judge’s legal orders after hearing evidence . . . not some yehaws coming up to a booth at a festival and demanding the artifacts.
It should be emphasized that NAGPRA rules only come into effect when a burial is disturbed. If you have Native American burials on your private property, you are under no obligation to allow archaeologists or government agencies to excavate them. On the other hand, state laws specifically prohibit the removal of any human remains, no matter the ethnic identity, without complying with a group of laws associated with such activities. In other words, you cannot unilaterally dig up an old pioneer cemetery on your land, just to have a skull to show off.
The discovery of previously unknown cemeteries is a major headache that I have had to deal with several times as an architect-planner. Five old family cemeteries had to be relocated, while we were planning the development of Peachtree City, Georgia.
Case Study : Legal and illegal excavation of artifacts on private property
In 1988, I signed an agreement with the National Park Service to allow professional archaeologists and historians, employed by the NPS, to thoroughly survey our farm, house and outbuildings. The survey plat of the farm was prepared by George Washington, while the house had been constructed in 1770 by Colonel John Tipton . . . later one of the founding fathers of Tennessee. The agreement allowed the archaeologists to dig test pits at multiple locations, if they followed prescribed procedures for preventing harm to our livestock and farm buildings. The initial agreement was later modified, when the archaeologists found Adena and Hopewell Culture village sites, plus an artillery redan. The federal government was to keep possession of most artifacts, but the archaeologists were to give me samples of each type of artifact.
While excavating a ditch for underground power supply, my mechanical contractor discovered the skeleton of a Civil War soldier about 20 feet from the front of the house. Per our agreement with the National Park Service, the bones and associated artifacts were turned over to the National Park Service.
The entire five year relationship with the National Park Service personnel was most pleasant and very educational. I have no complaints. Several of the historians and archaeologists at the Harpers Ferry NPS Facility became my closest friends.
HOWEVER, immediately after the Washington Post ran a Sunday edition article about our farm being a key property in the planned Shenandoah Battlefields National Park, we ran into similar problems to what Southeastern families have complained about. We came home from church to find it impossible to get to our house on our own driveway. There were so many cars parked on the driveway that it was blocked. We were astonished to see about two dozen people, sauntering across our pastures in the midst of the 200+ goats and sheep with heir metal detectors and shovels. Most of the men and women were carrying plastic bags full of Colonial, Federal Period and Civil War artifacts . . . even showing them off to each other.
We had to park our car on the ancient Back Road and then walk to our house. I immediately called the sheriff’s department. The deputies would not arrest anyone, because we had not nailed a “No Hunting or Trespassing” sign on our front gate – only along the peripheries of fenced pastures. The deputies also allowed the trespassers to drive off our property with bags full of our artifacts, because there was no sign. Actually, they were wrong about this, but in such tense situations, you cannot argue with deputies or they might arrest you.
Lesson learned . . . if you want legal teeth to prevent artifact poachers from pillaging your property, you must put “comprehensive” No Trespassing signs up, which include “No digging or use of metal detectors.”
Catechism for State and federal laws concerning artifacts
Is it legal to collect artifacts?
Yes, with some restrictions. It is legal to collect artifacts from the surface of private property, with permission of the landowner (OCGA 12-3-621[a]). Be sure not to trespass.
What are the restrictions?
Is it ever legal to surface collect artifacts on federal lands?
No, unless you are a professional researcher (archeologist) working for a federal agency or you have an ARPA permit to collect . However, a provision of ARPA allows the collection of arrowheads from the surface. To be sure, check with the agency managing the land you want to collect.
Is it ever legal to surface collect on state lands?
No, unless you are a professional researcher (archeologist) working for a state agency or you have a state permit to collect artifacts (OCGA 12-3-52[a][c]).
Is it ever legal to metal detect for artifacts?
Yes, with restrictions. You cannot metal detect on state or federal lands without a permit. For archaeological or historical sites on private property, you must have the landowner’s written permission and have notified the Georgia Department of Natural Resources before the collecting begins.
Is my private artifact collection legal? Can it be confiscated? Can I display it publicly?
Generally, it is legal to own and display an Indian artifact collection. It is illegal to display any portion of the skeleton of an Indian (OCGA 31-21-45[a]) and it is illegal to buy, sell and trade, import, or export Indian burial, sacred, or cultural objects (OCGA 12-3-622[a]).
Is it illegal to own skeletal remains?
It is unlawful to receive, retain, dispose of, or possess any bodily part of a human knowing it to have been removed unlawfully (OCGA 31-21-44[b]). It is illegal to wantonly or maliciously excavate or disturb a burial (OCGA 31-21-44[a]), and it is illegal to display Indian remains in public (OCGA 31-21-45[a]).
Is it legal to own burial objects?
It is legal for individuals (not museums) to own burial objects that were obtained legally, that is, those that were obtained by not violating laws against digging on sites, collecting on private lands or disturbing graves.
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Richard Thornton is a professional architect, city planner, author and museum exhibit designer-builder. He is today considered one of the nation’s leading experts on the Southeastern Indians. However, that was not always the case. While at Georgia Tech Richard was the first winner of the Barrett Fellowship, which enabled him to study Mesoamerican architecture and culture in Mexico under the auspices of the Institutio Nacional de Antropoligia e Historia. Dr. Roman Piňa-Chan, the famous archaeologist and director of the Museo Nacional de Antropologia, was his fellowship coordinator. For decades afterward, he lectured at universities and professional societies around the Southeast on Mesoamerican architecture, while knowing very little about his own Creek heritage. Then he was hired to carry out projects for the Muscogee-Creek Nation in Oklahoma. The rest is history.Richard is the Tribal Historic Preservation Officer for the KVWETV (Coweta) Creek Tribe and a member of the Perdido Bay Creek Tribe. In 2009 he was the architect for Oklahoma’s Trail of Tears Memorial at Council Oak Park in Tulsa. He is the president of the Apalache Foundation, which is sponsoring research into the advanced indigenous societies of the Lower Southeast.
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