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THE AMATEUR ARCHAEOLOGIST ONLINE

Artifact Collecting: It's a Hobby, Not a Crime! (posted August 2007) by Lewis B. Smith

Amateur Archaeologist Journal(A word of explanation. The attached proposal was presented by Lewis B. Smith, a longtime Hunt county, TX artifact collector, to State Senator Bob Deuell in January of 2007 in hopes of getting the proposal passed into law during the last legislative session. Senator Duell was sympathetic and agreed to pass the proposal to the Texas Historical Commission. The Commission's lead archaeologist, Dr. Jim Bruseth, was favorably impressed with the proposal, although the head of THC, Larry Oaks, was not. The proposal was verbally submitted to the Council of Texas Archaeologists and the Texas Archaeological Society. Both groups gave an initially negative response, and at Mr. Smith's insistence, the entire proposal, along with further commentary addressing their major concerns, was submitted to them. The Council of Texas Archaeologists President, Dr. Charles Frederick, gave a strongly negative response. The TAS has not yet to be heard from on this issue.

Amateur Archaeologist JournalThis proposal MAKES SENSE. It is good for collecting, good for archaeology, and good for our state. Please send a copy of it, with your own comments or letter of support, to your state senator or representative. There are thousands of collectors throughout the state, and if all of them make their voices heard, we can make this proposal law. If you have any friends within the archaeological community, present this to them as persuasively as you can, Copy this proposal and pass it around at shows and meetings you attend.

Amateur Archaeologist JournalYou may wonder why the archaeological community is so opposed to a program that will enrich their own science so much? There is a fascinating article by Dr. E. J. Neuberger in the current (April-May-June 2007) article of Indian Artifact Magazine entitled "Bad Blood". If you have access to it, copy it and send it to your legislator along with this proposal. Thanks much for your help!!)

A PROPOSAL TO THE STATE LEGISLATURE

ABSTRACT: A proposal to amend the Texas State Antiquities Code to allow the surface collection of Indian Artifacts, by state-issued license holders, on all Texas public waterways.

HISTORY: Collecting Indian artifacts, as a hobby, is a time-honored American tradition. It has been practiced by US presidents, like Thomas Jefferson and Jimmy Carter, famous authors like Henry David Thoreau and Stirling North, and war heroes like Oklahoma's famous fighter ace Bob Johnson. Because of it's enormous land mass, large population, and abundant ancient occupation, Texas has as many if not more artifact collectors than any state in the Union. Each time one of these reservoirs fill, hundreds and sometimes thousands of archaeological sites are flooded. The vast majority of these sites were never recorded or excavated before the lakes filled, and even those that were excavated were very rarely completely cleaned of artifacts. Because the key to archaeology in context — that is, artifacts remaining where they were deposited by their makers — submerged sites are virtually useless to the science of archaeology, especially if they are located along the shoreline of the waterway. Constant erosion, deflation, wave action, and currents dislocate, scatter, and redeposit millions of artifacts each year. For decades, surface collectors have recovered artifacts from Texas rivers creeks and especially lakes without any official interference. While the Texas Antiquities Code was recently amended to contain language forbidding the retrieval of any artifacts from any public land, the public has remained largely ignorant of the Code and managing authorities have chosen not to enforce it, since these artifacts are so displaced and scattered (for example, a single pile of washed up gravel along a reservoir bank may yield coins and glass from the 20th century, pottery from 1300 AD, Gary points from 1000 BC, and Dalton points from 8000 BC, all lying within inches of each other!). Not to mention, the vast majority of artifacts collected are common examples of common types of knives and projectile points, which are so ubiquitous that there is little they can tell us about the past that is not already known, particularly when they are found out of context.

Amateur Archaeologist JournalThe federal law dealing with artifact collecting is the Archaeological Resources Protection Act of 1979 (PL96-95), passed to protect all "archaeological sites and resources on public land." While it does indeed protect artifacts on public land from illegal digging and excavation, Pres. Jimmy Carter, an avid arrowhead collector, insisted that language be inserted to protect surface hunters. So in Section 6, "Prohibitive Acts and Civil Penalties", the ARPA states "nothing is 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." Then in section 7, "Civil Penalties", the law again stated: "No penalty shall be assessed under this section for the removal of arrowheads located on the surface of the ground." THE ORIGINAL INTENT IS CLEAR - ARPA was designed to protect archaeological sites on public land from pot hunters and grave robbers, but NOT to penalize surface collectors. Also, in the original debate surrounding the law, it was clear that an archaeological site was eroded, destroyed, or damaged to the extent that it was no longer a valid archaeological resource, managing authorities could not remove it from protection under ARPA by simple fiat. The original purpose of ARPA in this regard has been completely subverted in recent years. To my knowledge, not a single managing authority has ever removed any site, area, or waterway from ARPA protection — not even gravel bars in the middle of swift-flowing rivers! And out West the BLM and the Corps of Engineers have arrested surface collectors in spite of the law, charging them with "theft of government property" since they cannot legally charge them under ARPA! The ridiculousness of the federal or state government claiming ownership of every single washed-out, displaced arrowhead, pottery shard, or scraper in America should be apparent to anyone.

Amateur Archaeologist JournalBut sadly, in recent years, following the policy of the US Army Corps of Engineers, managing authorities of Texas Reservoirs have begun acting to forbid collecting of artifacts on the lakes that they manage. Most recently, signs have been posted on Lake Tawakoni reading: "Digging or removing any stone artifact, pottery, or bone from Sabine River Authority Land is a violation of the Antiquities Code of Texas. Violators will be prosecuted." This posting comes after 42 years of active collecting on Tawakoni have seen the removal of tens of thousands, and only came after an individual who owned land on the lake was found digging up Indian burial site with a tractor! In recent years, all artifact collectors have increasingly been portrayed as vandals, grave robbers, looters, "thieves of time", and any other derogatory phrase public officials can think of. But the fact remains that for every criminal who ransacks graves and takes backhoes to sites, there are HUNDREDS of simple hobbyists, surface collectors whose activities do not violate that spirit of the law, Many of them are doctors, lawyers, pastors, history professors, small business owners, and students whose favorite pastime has been criminalized without their knowledge or consent. The result of the sudden decision to enforce this virtually unknown law has the practical effect of driving law-abiding citizens away from the hobby, leaving the criminal element to take it over.

Amateur Archaeologist JournalThe proposal seeks to find a middle ground — to create a licensing agency which shall grant permits for ordinary citizens to surface collect artifacts off of public waterways without fear of the authorities, and to control the illegal digging, grave robbing, and other criminal activities that give all honest collectors a bad name.

PROPOSED AMENDMENT TO THE ATIQUITIES CODE

Amateur Archaeologist JournalUnder the authority of the State of Texas, the Texas Historical Commission is allowed to issue permits for private citizens to collect Indian artifacts from all public waterways in Texas, [except for State Parks and lands administered by the Federal Government]. These private Artifact Collector Licenses may be obtained by any citizen who is 16 years of age or older, has a clean criminal record for the last 5 years, and no felony convictions. [Those under 16 will not be required to have a license as long as they are in company of a licensed collector.] Licenses are allowed to engage in the following activities:
  • Surface collecting of Indian artifacts from gravel bars and shorelines of all rivers, creeks, lakes, and waterways owned and/or administered by the state of Texas. Undisturbed sections of such sites will still receive full protection of the law. DIGGING FOR ARTIFACTS WILL STILL BE FORBIDDEN ON ALL PUBLIC LAND.
  • "Surface collecting" may be defined for the purposes of this law as the collection of any artifact, or relic, including stone implements, pottery, bone tools (unless they are made of human bone), and any other items made by prehistoric Texas tribes, or early Texas settlers, which can be retrieved BY HAND only. [The use of all digging tools — shovels, trowels, rakes, spades, hoes, etc. — is strictly forbidden. The only tools a licensed collector may use in pursuit of his hobby is a simple stick or pole to "flip" stones and chips, and a small, hand-held sifter no larger than 24" by 18".] "Digging" shall be defined as the removal/displacement of topsoil WITH DIGGING IMPLEMENTS to uncover relics. "Digging implements" shall be defined to include shovels, hoes, picks, trowels, rakes, spades, and any other tool whose clear purpose is to remove, dislocate, or overturn soil.
  • Exclusive ownership of all artifacts recovered, with all rights and privileges of private personal property ownership, commencing ONE YEAR after the find has been made and reported, if the State does not choose to acquire the artifact for study.
  • [Have their existing collections exempted from any criminal prosecution under previous statues.]
Licensees will be required to do the following:
  • Report all finds of complete artifacts to the Texas State Historical Commission on a regular basis according to guidelines handed down by the commission. [It is recommended that the THC designate one archaeologist for each waterway and reservoir in Texas for licensed hunters to report recovered artifacts to; that archaeologist can be in charge of assembling the database and making the initial determination as to whether the public interest would be served by the State acquiring ownership of a unique specimen. Reports could be field electronically, with digital photos.]
  • Allow the State of Texas to borrow any artifact collected off of public land for study. The study period may not exceed one year, and all expenses for shipping and handling study artifacts will be borne by the State Agency conducting the study.
  • Pay an annual fee for the maintenance of their Collecting License, not to exceed the amount of $75 per year.
  • Upon request, to allow the State to buy any artifact found on public land at market value, to become the permanent property of the State of Texas.
  • To report any and all discoveries of burials or human remains on State-owned land.
  • To fill out a THC Site Report on any newly discovered or unrecorded archaeological site.
  • Avoid any illegal activity, including digging, "prop washing" (using boat propeller to remove sediment from a site), or using power hoses to uncover artifacts.
  • To cooperate in a reasonable and open manner with all archaeologists and historians employed by THC or any other state agency.

Amateur Archaeologist JournalThe Texas State Historical Commission is empowered to work with the Texas Archaeological Research Laboratory to create a database of all reported artifacts, review collector information, acquire specimens of unique archaeological interest, and work with licensed collectors in such a way as to enhance, preserve, and extend our knowledge of the archaeology of Texas.

***NOTE ON BRACKETED PHRASES — These are sections of the proposal which could be removed from the final draft if they attract too much opposition from concerned parties.

UNDER THE CURRENT SYSTEM — EVERYBODY LOSES!!!

ARCHAEOLOGY LOSES — Collectors are afraid to share information because they might lose their artifacts and be prosecuted. Also, honest collectors driven off of surface collecting on already-destroyed sites on public land turn to collecting from sites and thus destroying them! Those who do continue to hunt on public waterways become more furtive and fearful, and the small amount of valuable information held in these dislocated artifacts is lost forever, while destruction of intact sites on private land is accelerated.

COLLECTORS LOSE — Their beloved hobby is criminalized, their character publicly defamed, and their access to artifacts limited. IF THE ARTIFACTS IN QUESTION WERE BEING COLLECTED AND CURATED BY THE STATE, MOST WOULD NOT COMPLAIN. AS IT IS, ARCHAEOLOGY DOES NOTHING TO RETRIEVE THESE ARTIFACTS BUT INSISTS NO ONE ELSE BE ALLOWED TO DO SO EITHER. Relations between the collecting community and the archaeological community are poisoned, and knowledge is lost in a fog of distrust and hostility.

TAXPAYERS LOSE — Their money is spent chasing down and prosecuting otherwise law-abiding citizens, while dangerous criminal elements have one less policeman/constable/game warden to worry about. No one likes seeing their money wasted in an ongoing effort to enforce something that is inherently unenforceable.

LAW ENFORCEMENT LOSES — As any schoolteacher can tell you, it is no use to have a rule if you do not plan to enforce it. No matter how many signs are posted around a reservoir, no matter how many hapless collectors are singled out to be "made an example of", if an artifact is lying visible along a shoreline, it will be picked up by someone who is either ignorant of the law or chooses not to obey it. With thousands of miles of shoreline along Texas reservoirs and an average of less than half dozen public officers patrolling each lake, thousands of people will continue to collect, and the occasional haphazard enforcement will only increase the hostility they feel for the law.

COMMON SENSE LOSES — A homeowner on the lake can dig a new boat channel behind his house and completely destroy a prehistoric site, cutting an 8 foot deep trench through the middle of it and packing all the dirt and artifacts behind a new bulkhead, and neither the law or managing authority of the reservoir bat an eye. But if a collector walks along the same stretch of beach and picks up artifacts exposed on the surface, he is a criminal. THAT DOES NOT MAKE SENSE!

UNDER THE PROPOSED PLAN - EVERYBODY WINS!

ARCHAEOLOGY WINS — With licensing fees being used to hire new personnel, and tens of thousands of artifacts being reported by collectors from all over the state, a huge amount of information can be collected quickly, with no additional budget appropriations for excavation or field expeditions. Relations with the collecting community would be drastically improved, and knowledge would increase exponentially as more and more and more collectors decide to "go legal".

COLLECTORS WIN — They would have the right to do what they love doing without fear of prosecution or harassment. They can cut down on their competition by reporting the unlicensed collecting, digging, and criminal activities that have given them a bad name for years. They would be free to consult and share with archaeologists without the fear of "Big Brother" coming to take their stuff away. Their activities would finally be out from under the legal cloud that has darkened them for years.

TAXPAYERS WIN — - Instead of seeing their dollars spent in fruitless "sting operations" and endless lake patrols, the state could realize hundreds of thousands of dollars in annual revenues from license fees. This money could be budgeted to the THC to increase its capacity to process the huge flow of information that would be coming in, without the expenditure of additional tax revenue.

LAW ENFORCEMENT WINS — Game wardens, deputies, and lake patrols would be free to pursue real criminals, and be held in higher regard as the true protectors of our rights that they are, rather than agents of "Big Brother" harassing innocent citizens for activities that are, in the eyes of most people, not criminal at all.

COMMON SENSE WINS — Grave robbing is wrong and everyone knows it. Picking up an arrowhead washed up along a beach is one of the simple pleasures of life. It hurts no one, damages nothing, and should not be criminal. Unless the state is prepared to put dozens of enforcement officers on every reservoir and river in Texas and arrest every senior citizen, pastor, or Boy Scout who enjoys picking up arrowheads, it is time to put some laws on the books that MAKE SENSE! The amendment would place Texas in the unique position of setting a national example of cooperation between collectors and archaeologists, and be an everlasting credit to the legislature and governor of America's greatest state.

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