Various laws and regulations continue to impact the pursuit of amateur science. The Citizen Scientist has previously covered the impact of legislation on amateur biologists, chemists and physicists. Amateur archaeologists and artifact collectors are also affected. Here we present an artifact collector's proposed legislative solution to a major issue affecting artifact collectors in Texas. Comments are welcome and may be sent to Backscatter and to the SAS Community Forum. Editor.

Legalize Surface Collecting on Public Waterways

Lewis B. "Indiana" Smith
Indiana Smith and his Texas Artifact Collection

This is the entire text of a proposal that I presented to Texas State Senator Bob Deuell on 28 December 2006. He has promised to embody these recommendations into a bill to be presented to the Texas Legislature during the 2007 session.

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 U S 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 its enormous land mass, large population, and abundant ancient occupation, Texas has as many if not more artifact collectors than any state in the Union. Texas, because of its lack of natural lakes, also has more man-made reservoirs 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 archeology is context – that is, artifacts remaining where they were deposited by their makers – submerged sites are virtually useless to the science of archeology, 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 8,000 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.

The federal law dealing with artifact collecting is the Archeological Resources Protection Act of 1979 (PL96-95), passed to protect all “archeological 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 archeological 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 if an archeological site was eroded, destroyed, or damaged to the extent that it was no longer a valid archeological resource, managing authorities could 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.

But sadly, in recent years, following the policy of the U S 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 of artifacts, and only came after an individual who owned land on the lake was found digging up an 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 the 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.

This 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 ANTIQUITIES CODE

Under 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 the company of a licensed collector.] Licensees 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 statutes.]

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 archeologist for each waterway and reservoir in Texas for licensed hunters to report recovered artifacts to; that archeologist 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 filed 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 report any and all illegal digging, excavation, removal, or unlicensed collecting to a designated State Authority.

• 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 archeologists and historians employed by THC or any other state agency.

• The 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 archeology of Texas.

NOTE: The bracket phrases are sections of the proposal that can be removed from the final draft if they attract too much opposition from concerned parties.

UNDER THE CURRENT SYSTEM - EVERBODY LOSES!

ARCHEOLOGY 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 on private land, which usually means digging into undisturbed archaeological 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, ARCHEOLOGY 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 a 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 his new bulkhead, and neither the law or the 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!

ARCHEOLOGY 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 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 archeologists 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 tax 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! This amendment would place Texas in the unique position of setting a national example of cooperation between collectors and archeologists, and be an everlasting credit to the legislature and governor of America's greatest state.