From Sept 1997 issue of the Glyph, published by the San Diego Society, 
a chapter of the Archaeological Institute of America, in the section:
"Pot-diggers: Property Rights, and Public Interest - A Debate"


Who Owns the Artifacts?

Robert J. Jeske
<jeske@csd.uwm.edu>
Department of Anthropology
University of Wisconsin-Milwaukee
Milwaukee, WI 53201

During a recent discussion on Arch-L, an internet listserv devoted to archaeology, the subject of private property rights versus public interest in history and prehistory generated some heated debate.  At issue is the notion that ownership of a particular parcel of land gives one ownership rights to whatever cultural materials exist on that property--that private property rights supersede the publicÕs interest in our past heritage.  Also, any individual who has an archaeological site on their property  should be able to dig up and sell the artifacts as they see fit.

As a professional archaeologist, I am bound to protect and preserve archaeological sites.  Sites are nonrenewable resources that are destroyed when they are dug up.  Disturbing an archaeological site irrevocably destroys the context of the finds, diminishing their scientific value.  Site destruction must be done under highly controlled conditions so that we retain as much scientific information as possible.  Once the artifacts are out of the ground, we cannot go back.

This leaves me with a difficult balancing act: the need to dig sites to get information  versus the need to preserve sites.  The need to balance data collection and preservation requires formal control over the resource.  Only government has the ability to regulate this balance.  This balance is analogous to mineral rights or zoning laws which seek to balance the rights of property owners with the need to regulate who can mine minerals or what types and methods of construction are allowed in various communities. 

Property rights are not inherent, they are granted by the state.  Our property rights began when the US government (and previous European powers), removed the indigenous owners of the land and handed out (or sold for a pittance) these same lands to other people.  Government has always been the first step in providing Non-Native Americans with land and land rights. Since the public paid the bills to get the land, the public has an interest in what happens to it and to things that are in or on that land.

Another matter looms large in this discussion--buried human remains.  A large percentage of archaeological sites contain human remains.  Should skeletons found on private property be under the control of the current owner of the land? Should the right to dig up these skeletons be left to the discretion of anyone willing to pay for the land? Of course not.  The state is the entity who should have the power to decide when unaffiliated human remains are buried, dug up, or left alone.

In order to handle to question of human remains, Indiana, IC 14-21-1 sets guidelines for who is able to dig archaeological sites, and under what conditions, archaeological sites may be dug.  In short, you need a permit from the state to dig for archaeological or historical materials dating prior to AD 1816.  The law allows for avocationals as well as professionals to dig. Surface collecting is an exempt activity.  Many other states are following IndianaÕs lead.  I suggest that this is a reasonable way to balance the need to protect human remains, scientific data recovery, and property rights.