Looting, Theft & Repatriation

[painshill]

The Way Things Used To Be
Steven R. Cooper
Originally published in the Central States Archaeological Journal, Vol.55, No.4, pg.250

For more than one hundred and fifty years, collectors, amateur archaeologists, opportunists and the impoverished dug and removed artifacts from prehistoric graves in Arkansas. Although today referred to as looting and/or grave robbing, it was a legal practice up until 1991. Many ancient sites, including some large ones, were and/are still in private hands. These sites presented an opportunity to find the past and remove it from the earth.

The State Legislature of Arkansas passed Act 753 known as the Grave protection Act in 1991. While it addressed other issues, such as ownership of human remains, its main focus was to forbid any digging of prehistoric gravesites on private land.

The pictures presented in this article are of legal digging prior to the enactment of this law. The author, nor the Central States Archaeological Societies, suggests that any of these activities should be practiced today. They are now illegal, and those who knowingly violate the law should be prosecuted.

The author reviewed the pictures, the dates on the back of them, and has made all necessary inquires to make sure none of the activities pictured in this brief story are after the passage of the law or show illegal activity.

After the Civil War, there arose a large interest in the prehistoric peoples of the United States. As more land was cultivated and populated, more and more artifacts started turning up. The collecting of such things became a pastime for many people. Curio shops became a fixture in many towns offering exotic pottery, stone items and arrowheads. For many of the artifacts, demand far exceeded supply. Pipes, huge flints and other rare items have never existed in large supply. This was the beginning of the creation of fakes and reproductions.

However, there were ample amounts of pottery. The prehistoric Indians were superb potters, and buried literally thousands of pots across the state of Arkansas and other areas.
Where there is demand, there can also be profit. While many collected because of a passion for it, there were those who recognized there was money to be found in the ground. These became the first diggers, who then sold their finds to the Curio shops and collectors back in the Eastern United States. Museums, including the Smithsonian and Harvard, sent expeditions to obtain artifacts for their collections. Many of these expeditions utilized information from the local dealers and collectors to find the sites. They removed huge amounts of objects, especially pottery. And yet there still seemed to be no dwindling of the supply.


Above: A blonde/orange colored vessel in situ and after excavation by Larry Garvin at the Knappenberger Site in Mississippi County, Arkansas on March 9'", 1990. The vessel measures 8 inches tall and 9 ½ inches wide.



Above: A group of six vessels found along with a discoidal on November 15th, 1990 at the Austin Site in Mississippi County, Arkansas. The duck effigy was covering the human effigy vessel.


Below: Two vessels found together in March 1988 by Ron Stamm at the Crosskno Site, Mississippi County, Arkansas. The large red on buff bottle is almost 10 inches tall.




In the 1920's, a huge site was discovered in the Carden Bottoms in Central Arkansas. At that time, crops were failing and the farmers needed money. A literal "gold rush" for prehistoric pottery came about. Wagonloads were sold to dealers, collectors and museums. Many of the finds were spectacular effigy pots, and strangely, Caddo, Mississippian and even Quapaw pottery were found at this site.

The 1930's saw the arrival of the Great Depression. It was the direct cause of the creation of the Pocola Mining Company; known for it's "looting" of the Spiro Mounds Site in neighboring Oklahoma. These "diggers" were desperate to create wealth in a time of poverty. Collectors and museums quickly bought up the artifacts they uncovered.
The 1950's and 1960's saw a rise in prosperity in the United States. Along with it came leisure time, and the collecting of artifacts became a passion for many. Many collectors have told me that it was weekend sport to go hunting and digging for artifacts. In Arkansas, large groups would go to known sites. Armed with probes, shovels and assorted tools, pottery and other artifacts were removed by the thousands.

One collector related to me that there were perhaps twenty groups in a field at one time. At sunset, the farmer would drive in his Cadillac up to each group and collect five dollars from each. They were expected to fill back in the spots they had dug. I've heard stories where someone would spend a week and find only two pots. Other times twenty pots might be uncovered in one day.

While there are horror stories where some literally threw the bones in graves across the fields, the majority of collectors held respect for these ancient individuals. Most never disturbed or removed any bones.

While the stone artifacts survived well in the ground, pottery was never a sure thing. Many have probe holes. Many were what was known as "sack" pots, a whole pot that was removed from the ground in pieces. These needed restoration to make them whole again. Probably less than 10% of all pottery removed from the ground was undamaged and without need for repair.

One can discuss the archaeological pros and cons of these practices. Today, these individuals are referred to by such terms as pothunters and looters. But it must be kept in mind that what they were doing was not illegal at the time. It was openly done, and there was very little protest from the archaeological community. Many landowners encouraged the practice as a way to achieve extra income off of their land.


Above: Two Mississippian vessels found together at the Austin Site in Mississippi County by Larry Garvin on March 8th, 1991. On March 10th Governor Bill Clinton signed the Grave Protection Act and ended activities like this forever. The Cat serpent measures 9 1/2 inches from nose to tail.


All this changed in the late 1980's, with the rise of the American Indian Movement, and a fear that our archeological past might be destroyed. Modern methods are more concerned with the understanding of the past instead of just acquiring fine artifacts. With more than 100 years of prehistoric prospecting, there are thousands of artifacts in museums and private hands. The 1991 Grave Protection Act insured that the remaining archaeological resources would stay as they have been, buried and not to be disturbed. Modern methods will expand our understanding of the past beyond the artifact. But the artifacts of these ancient peoples still excite our imaginations and maintain public interest in the peoples of the past. The future of archaeology rests in the hands of public and private funding. If there is interest there will be progress. Hopefully the 21st century will enhance our understanding of these ancient peoples and help us to know those who lived here for thousands of years.


Used by permission of the publisher
To learn more about or to join the Central States Archaeological Society, click here: http://www.csasi.org/

[painshill]

A Native American viewpoint – contributed by member [greywolf22]

Desecrating Indian Graves
by: Ojibwa
Sat Dec 26, 2009 at 09:19:46 AM PST

When the Pilgrims arrived in North America in 1620 they found a land which had already been depopulated by European diseases and which contained many fresh graves. One of their first acts upon landing was to rob an Indian grave. In this act they were following the grave robbing traditions of the Spanish who had arrived in North America before them and they were setting the stage for the Americans who would follow them.

In one instance the Pilgrims came upon the fresh grave of the mother of Massachusett leader Chickataubut. They opened the grave and stole from it two bearskins which had been interred with the corpse. This did not engender friendly relations with the Massachusett who viewed their actions as a form of sacrilege.

In another instance, the Pilgrims found a place that looked like a grave which was covered with wooden boards. The Pilgrims dug down into the grave and found several layers of household goods and personal possessions. They also found two bundles. In the smaller bundle they found the bones of a young child wrapped in beads and accompanied by a small bow. In the larger bundle they found the bones of a man. The man's skull still had fine yellow hair and with the bones were a knife, a needle, and some metal items. The grave appeared to be that of a blond European sailor, shipwrecked or abandoned on the Massachusetts coast who had then lived as an Indian. He had perhaps fathered an Indian child, and had been buried in an Indian grave.

The Pilgrims also stumbled into a Nauset graveyard where they found baskets of corn which had been left as gifts for the deceased. As the hungry Pilgrims were gathering this bounty for themselves, they were interrupted by a group of angry Nauset warriors. The Pilgrims retreated.

Indians were often offended by the grave robbing of the English colonists. While Europeans viewed grave robbing, or least grave robbing that involved European dead, as offensive, they seemed to have little concern regarding the robbing of Indian graves. In 1654, three English colonists robbed the grave of the sister of Narragansett Sachem (chief) Pessicus. The Narragansett Sachem, along with 80 warriors, tracked the robbers to Warwick where they met with Roger Williams. Williams convinced them to bring charges against the leader of the robbers in an English or Dutch court. However, the case was eventually dismissed when the Narragensett failed to show up in court. The Narragensett did not understand the workings of the European court system and their need to appear.

Like the English, the Americans did not feel that it should be a crime to rob an Indian grave. When nine Americans opened and robbed the grave of the daughter of Narragensett sachem Ninigret in 1859, three Narragensett men brought suit against them. A large number of grave goods were taken from the grave and distributed among Harvard's Peabody Museum, the Rhode Island Historical Society, and private collectors. Even as these men were being arraigned and questioned, other graves at Indian Burial Hill were being opened and looted. While written accounts indicated that the men were acquitted, the judicial records show that the charges were never prosecuted.

The United States government actively promoted and encouraged the robbing of Indian graves. In 1865, the U.S. Surgeon General issued orders to all military medical officers to collect specimens for the Army Medical Museum. The assistant surgeon general explained the reason for collecting skulls: "The chief purpose in forming this collection is to aid the progress of anthropological science by obtaining measurements of a large number of skulls of aboriginal races of North America." In response, army officers were soon systematically robbing graves on Indian reservations so that the bones, or at least the skulls, could be shipped to the newly founded Army Medical Museum. One medical officer reported: "I secured the head in the night of the day he was buried."

Another order to obtain Indian skulls for the Army Medical Museum was issued by the Army Surgeon General in 1868. Under this order, over 4,000 Indian heads were taken from corpses at battle grounds, prisoner of war camps, hospitals, and Indian graves. Any grave goods found with the skulls were donated to the Smithsonian Institution.
During the nineteenth and twentieth centuries, many private collectors sought to obtain the skulls of famous Indian chiefs. In 1886, the grave of Nez Perce Chief Joseph (the elder, the father of Chief Joseph who was involved in the 1877 Nez Perce War) was opened and his skull was taken. The skull was later exhibited in a dentist's office in Baker, Oregon.

The grave robbers also sought the goods which were buried with the Indian dead. In 1903, the grave of Columbia chief Moses was robbed by non-Indians who took his gold watch, his medal from Washington, D.C., and his beadwork. As the grave robbers fled from the grave, they dropped his pipe. Some boys later found it, smoked it, and became ill.

In 1911, Americans were systematically looting Palouse graves in Washington state for curios which they then sold in Eastern markets. Chief Big Sunday led a delegation to Walla Walla where they appealed to a judge to stop the vandalism. The judge ruled against the chief and the grave robbing continued. For many Americans, Indian graves were simply one more resource, like gold and timber, which should be made available for them to harvest.

In 1918, members of the Skull and Bones Society of Yale University robbed the grave of Apache leader Geronimo. His skull and femur have been incorporated into their rituals ever since this time. In 2009, the descendents of Apache leader Geronimo filed suit against Yale University asking for the return of Geronimo's remains. The suit was filed on the 100th anniversary of Geronimo's death by his great-great grandson Harlyn Geronimo. As of this writing, the case has not been heard.

In many communities and families in the U.S., the looting of Indian graves has been, and continues to be, an honored avocation and profession. Indian artifacts are often seen as a type of natural resource. The looters often see nothing wrong with scattering Indian bones as they dig through the graves so that they can get artifacts for personal display or to sell to other collectors. Laws regarding Indian graves often apply only to those graves located on federal lands. As late as 1987, a Kentucky landowner was paid $10,000 for the right to loot 650 Indian graves located on the property.

The United States took action in 1906 to stop some of the grave robbing: the Antiquities Act made it a criminal offense to appropriate, excavate, injure, or destroy historic or prehistoric ruins or objects of antiquity located on federal lands. The Act was crafted with no input from American Indians. While the actions of grave robbers have been illegal for more than a century, the courts and law enforcement agencies often fail to see any harm in their actions. Actions brought against grave robbers have often been dismissed by the courts, and the few that have been convicted have been given light sentences. One analysis of the convictions under the 1979 Archaeological Resources Protection Act shows that most people convicted of looting Indian graves are given probation, and, when sentenced to prison, the sentence is usually less than one year.
In New Mexico in 1992, an Anglo charged under the Archaeological Resources and Protection Act pled guilty to looting Navajo graves. He was given four years probation and a $5,000 fine. During his career as a grave robber, the man admitted to uncovering many graves and throwing the skeletons to the winds while searching for ancient artifacts to sell to "art" collectors.

In Utah in 1997, a judge reduced the sentence of a man convicted of plundering an Anasazi burial ground and leaving an infant's bones strewn about the site. The sentence, given to a man described as a "third generation pothunter", was originally considered the most severe sentence ever given a pothunter. The judge reduced the sentence from 78 months to 63 months by disallowing the use of the "vulnerable victim" sentencing provision. Originally, the disinterred bones of the infant had been considered a "vulnerable victim."

The looting of graves, however, continues. In 1999, 80% of the graves in a traditional Snoqualmie burial ground in Washington were looted by professional grave robbers using a backhoe. In 2001, the water levels of the Missouri River fell and exposed many Indian burials. With the low water, the number of people looting the graves for Indian artifacts increased dramatically. Many of the exposed graves were supposed to have been removed by the Army Corps of Engineers prior to the damming of the river. Indian people have often complained about the lax attitude of the Corps regarding Indian graves.

As a result of a federal undercover investigation in 2009, 26 people were arrested in Utah for the theft of American Indian antiquities. The U.S. Attorney for Utah, Brett Tolman said:

"The public needs to understand that looting artifacts, many considered sacred by Native Americans, from public and tribal lands is simply not going to be tolerated. It is clear that there is a continued need for education on the serious nature of these crimes."

Under the law, the defendants could face up to 10 years in prison. The judge, however, ignored sentencing guidelines, and simply gave the first two defendants probation. This sends a message that this is not considered a serious crime.

[painshill]

ARCHAEOLOGICAL ETHICS & THE REPATRIATION MOVEMENT

Here’s an extremely comprehensive review and discussion of the ethics (and legality) of artefact collection by John Alan Cohan J.D., Loyola Law School; B.A., University of Southern California; Law Clerk to Federal Judge Charles H. Carr; Instructor, Western State Law School.

It’s titled “An Examination of Archaeological Ethics and the Repatriation Movement Respecting Cultural Property” and was published in two parts in “Environs” [Vol. 27:2 Spring 2004] [Vol. 28:1 Fall 2004].

Part 1 can be downloaded here:

http://environs.law.ucdavis.edu/issues/27/2/cohan.pdf

Part 2 can be downloaded here:

http://environs.law.ucdavis.edu/issues/28/1/cohan.pdf

Cohan covers both national and international aspects. There’s almost nothing that isn’t covered. As always for documents making reference to legislative aspects, it’s important to bear in mind the date of publication and the possibility that there have been subsequent changes.

I have reproduced the full index for the two parts to give you an idea of the scope of Cohan’s commentary:

A. The Strange Pleasures of Archaeology
B. What Archaeology Is and Why It Is Important
C. The Emergence of Archaeological Ethics
D. Who Owns the Past?
I. THE ARCHAEOLOGICAL TROIKA: THREE PRINCIPLES OF ARCHAEOLOGICAL ETHICS
A. The Importance of Leaving Archaeological Materials "In Situ"
B. Artifacts Should Not Be Sold
C. The Special Problems of Funerary Artifacts and Sacred Objects
II. UNDERWATER ARCHAEOLOGY
A. Underwater Archaeology Contrasted With Land-Based Archaeology
B. Legal Hurdles to Marine Archaeology
1. The Law of Finds
2. The Law of Salvage
3. The Abandoned Shipwreck Act (ASA)
C. Why Land-Based Archaeological Ethics Do Not Apply to Marine Archaeology
1. The "In Situ" Dilemma
2. The Commercial Aspects of Underwater Archaeology
3. Shipwrecks As Underwater Cemeteries
D. Suggestions for Reconciling the Interests of Archaeologists and Salvagers
III. IDENTIFYING STAKEHOLDERS: CULTURAL PROPERTY AND CULTURAL GROUPS
A. The Relevance of Cultural Property and Associated Group Rights
B. What Is Cultural Property?
1. General Conceptions of Cultural Property
2. Particularity of Place
3. The Communal Quality
4. The Importance of Group Identity
5. Generic Definitions of Cultural Property
C. Cultural Groups as Stakeholders
1. Definitions of Group Identity
2. The Importance of Grouphood
D. Evaluating the Shared Cultural Identities of Modern and Antecedent Groups
1. Biology
2. Language
3. Oral Tradition
4. Common Ideology
5. Exclusive Use and Occupancy of Land
6. Diaspora
7. Stewardship
IV. THE SPECIAL "NON-PROPERTY" STATUS OF HUMAN REMAINS
A. The Importance of Human Corpses to Archaeology
B. Caring for the Dead
C. The Legal Status of Dead Bodies
D. Arguments Against Excavating Human Remains
1. Violating the Wishes of the Deceased
2. A Lack of Dignity
3. Treating Human Remains as Things
E. The Quasi-Property Status of Funerary Materials
V. THE TREATMENT OF NATIVE AMERICANS AND THE REPATRIATION MOVEMENT
VI. THE NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION ACT (NAGPRA)
VII. THE PUBLIC TRUST DOCTRINE AND ARCHAEOLOGICAL ETHICS
VIII. THE KENNEWICK MAN
IX. PRESENT-DAY ARCHAEOLOGICAL ETHICS
A. Archaeological Codes of Ethics
B. The Ethical Duty to Protect the Interests of Cultural Groups
1. Group Consultation
2. Developing Working Relationships With Cultural Groups
X. THE VICIOUS CYCLE OF CULTURAL PROPERTY LOOTING AND THE BLACK MARKET
A. The Nature of the Problem of Looting
1. Destruction of Cultural Heritage
2. Destruction of Archaeological Sites
3. Violation of the Intent of the Deceased
4. Violation of Umbrella Retention Laws
B. The Nature of the Problem of the Black Market
1. Black Market Artifacts Lack Provenance
2. How Black Market Artifacts Garner "Provenance": Looting Eludes Detection
XI. THE RAPE OF EGYPT
A. The General Problem, Past and Present
B. A Case Study: The Napoleonic Occupation
XII. THE LAW OF WAR REGARDING PROTECTION OF CULTURAL PROPERTY AND TAKING OF "WAR BOOTY"
A. Historical Overview
B. What Law Should Apply in Evaluating the Napoleonic Occupation of Egypt?
1. Napoleon's Occupation of Egypt Seen As Just
2. Napoleon's Occupation of Egypt Seen As Unjust
XIII. A PARADIGM SHIFT IN THE LAW OF WAR REGARDING THE PROTECTION OF CULTURAL PROPERTY AND THE TAKING OF "WAR BOOTY" GAINED MOMENTUM THROUGHOUT THE NINETEENTH AND TWENTIETH CENTURIES
A. The Prohibitions on "Art Trophies" in the War of 1812 and the Lieber Code
B. The Prohibitions on "Art Trophies" in the Twentieth Century Through World War II
C. The Movement to Prohibit "War Trophies" Following the Nazi Plunders
XIV. THE HAGUE CONVENTION OF 1954
XV. PROTECTION OF CULTURAL PROPERTY IN TIMES OF PEACE: THE UNESCO CONVENTION
A. Substantive Provisions of the UNESCO Convention
B. Implementation of the UNESCO Convention in the United States
C. The Impact of the UNESCO Convention
D. Objections To and Critiques of Some Inadequacies of the UNESCO Convention
E. The UNIDROIT Convention
XVI. LAWS THAT NATIONALIZE ARCHAEOLOGICAL ARTIFACTS AND IMPOSE EXPORT RESTRICTIONS
A. Foreign Patrimony Laws
B. Patrimony Laws of the United States
C. Criticisms of Umbrella Nationalization Laws
1. Lack of Enforcement, Bribery and the Risk of Exacerbating the Black Market
2. The Problem of Hoarding
XVII. A REFUTATION OF JOHN MERRYMAN'S ARGUMENT THAT HAGUE AND UNESCO EXPRESS TWO CONTRASTING WAYS OF CONSIDERING CULTURAL PROPERTY
XVIII. RECOVERY OF LOOTED PROPERTY BY LEGAL PROCEEDINGS ABROAD
A. Criminal Prosecution in the United States for Foreign Looting
B. Civil Litigation in the United States for Foreign Looting
XIX. REPATRIATION OF LOOTED ARTIFACTS THROUGH DIPLOMACY, PRIVATE NEGOTIATION AND PUBLIC PRESSURE
A. The Preference for Diplomatic Solutions
B. General Arguments in Support of Repatriation
C. Arguments in Favor of Repatriation of Looted Antiquities from Past Centuries: Retroactive Application of Modern Customary International Law
D. Examples of Successful Repatriation of Artifacts
E. The Unresolved Controversy Regarding the Elgin Marbles
F. The UNESCO Intergovernmental Committee
G. Museum Policies for and Against Repatriation
XX. PROPOSED MODEL FOR SETTLEMENT OF CULTURAL PROPERTY DISPUTES
A. Establishing an International Tribunal
B. Issues to be Assessed in Mediating a Claim for Repatriation of Cultural Property
1. Did the Property Originate in the Country of the Claimant?
2. Resolution of Claims Among Competing Cultural Groups
3. In What Ways Is the Property Significant to Claimants?
a. Length of Time
b. Historic Factors
c. Group Identity
d. Intentions of Ancestors
e. Sacred or Spiritual Significance
f. Aesthetic Concerns
4. Under What Circumstances Was the Property Removed?
5. Long Delays in Making a Claim?
6. Finding an Appropriate Equitable Solution
7. Object-Centered Concerns: Where Will Property Be Better Conserved and Are There Hazards in Repatriation?
8. The Impact of Breaking Up Collections
9. Consideration of Whether Cultural Property Claimants Have a Surplus of Similar Artifacts
C. Manner of Repatriation: Compromise or Settlement?