(This bill originated as a proposal that I presented to State Senator Bob Deuell on December 28, 2006. During the 2007 session, this proposal was discussed heavily by Sen. Deuell, myself, and Dr. Jim Bruseth of the Texas Historical Commisssion. At that time, the proposal was not written into a Bill. However, the proposal was drafted into a Bill and filed in February of this year. As Senate Bill 1829, it has already been the subject of hearings before the Natural Resources Committee of the Texas Senate, where Shannon Graham, an Artifact Site webmaster, and myself, testified on its behalf. It should be voted out of committee this week (Apr. 13) Below is the entire text of the Bill in its current form.)
A BILL TO BE ENTITLED
relating to the collection of artifacts from public waterways.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter C, Chapter 191, Natural Resources Code, is amended by adding Section 191.060 to read as follows:
Sec. 191.060. COLLECTION OF ARTIFACTS FROM PUBLIC WATERWAYS. (a) In this section, "artifact" means an artifact, including a stone implement, pottery or pottery shards, a bone tool other than a tool made of human bone, or another item made by prehistoric or historic American Indians or aborigines or early settlers of land in this state.
(b) The committee may issue a permit to a private individual to collect artifacts from public waterways in this state other than a waterway located in a state park or in land administered by the federal government. Except as otherwise provided by this section, a private individual must hold a permit issued by the committee to collect artifacts from public waterways in this state.
(c) To be eligible for a permit, a private individual:
(1) must be at least 16 years of age;
(2) may not have been convicted of a misdemeanor during the preceding five years; and
(3) may not have been convicted of a felony.
(d) A private individual who is younger than 16 years of age is not required to hold a permit to collect artifacts from public waterways in this state if the individual engages in the collection of artifacts from public waterways in this state only while the individual is in the company of a holder of a permit issued under this section.
(e) A permit issued under this section must be renewed annually. The committee may charge a fee not to exceed $75 for renewing a permit.
(f) A private individual may collect artifacts only from the surface of the undisturbed portions of gravel bars on and the shorelines of all rivers, creeks, lakes, and waterways owned or administered by this state other than a waterway located in a state park or in land administered by the federal government. Artifacts may be collected only by hand, by the use of a stick or pole to flip stones or other obstacles, or by the use of a hand-held sifter no larger than 24 inches by 18 inches. A private individual may not collect artifacts by means of a shovel, trowel, rake, spade, hoe, or other implement the purpose of which is to remove, dislocate, or overturn soil.
(g) A private individual must report to the committee regularly in accordance with guidelines adopted by the committee regarding any artifacts found by the individual. The committee may provide for filing reports under this subsection electronically and may require an individual who files a report electronically to submit a digital photograph of any artifact found. The committee shall maintain a database of the reports filed under this subsection.
(h) This state is entitled to purchase any artifact found by a private individual in a public waterway in this state for the artifact's fair market value if the committee determines that the public interest would be served by this state acquiring ownership of the artifact. If the committee makes such a determination, the committee shall notify the individual. If this state purchases an artifact, the artifact becomes the permanent property of this state.
(i) The committee may assign to an archeologist the responsibility to receive reports under Subsection (g), maintain a database of reports filed under that subsection, and make initial determinations under Subsection (h) on behalf of the committee for a designated public waterway.
(j) If the committee does not notify a private individual who has found an artifact before the first anniversary of the date the individual reported the finding to the committee that the committee has determined that the public interest would be served by this state acquiring ownership of the artifact, the individual is the exclusive owner of the artifact with all of the rights and privileges of private personal property ownership, except as provided by this subsection. A state agency is entitled to borrow for study an artifact found by a private individual on a public waterway before or after a determination is made under Subsection (h). A state agency may not borrow an artifact for more than one year. A state agency that borrows an artifact shall pay the expenses of shipping and handling the artifact.
(k) A private individual who engages in the collection of artifacts on public waterways must report to the committee:
(1) any discovery of human remains, including a tool or other artifact made of human bone, or a burial site on a public waterway;
(2) any newly discovered or unrecorded archeological site; or
(3) any illegal collection of artifacts on public waterways observed, including collection of artifacts:
(A) without a permit; or
(B) by illegal means, including;
(i) digging or excavating;
(ii) using a propeller of a vessel to remove sediment from a site; or
(iii) using a power hose to uncover artifacts.
(l) A holder of a permit issued under this section shall cooperate in a reasonable and open manner with any archeologist or historian employed by the committee or another state agency.
(m) It is a defense to prosecution for an offense under this chapter involving the collection of artifacts from a public waterway in this state before September 1, 2009, that the private individual who collected the artifacts:
(1) collected them in the manner provided by Subsection (f); and
(2) holds a permit issued under this section.
SECTION 2. This Act takes effect September 1, 2009.
ARGUMENTS IN FAVOR OF THIS BILL
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.
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.
Please call or write your State Senator and urge them to vote in favor of Senate Bill 1829 today!
Here is a typical lake site being revealed by falling water level. At least 2 - 3 feet of topsoil has melted off the site, jumbling artifacts from different time periods and cultures together in washed-up piles of flint. Archeology can get little from a site like this that cannot be recovered by collectors at no cost to the public.