The Miami Circle and Archaeological Preservation

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Deciding the uture of the Past: The Miami Circle and Archaeological Preservation

Richard L. Stroup Professor of Economics, Montana State University Senior Associate, Political Economy Research Center Research Associate, The James Madison Institute and Matthew Brown Research Associate, Political Economy Research Center Research Associate, The James Madison Institute

Policy Report #26 July 2000

The James Madison Institute 2017 Delta Blvd., Suite 102 P. O. Box 37460 Tallahassee, FL, 32315 Voice (850) 386-3131 Fax (850) 386-1807 E-mail [email protected] Website http://jamesmadison.org

This Backgrounder was published by The James Madison Institute. Permission is granted to quote from this publication with appropriate acknowledgment. Deciding the Future of the Past: The Miami Circle and Archaeological Preservation

Table of Contents

Executive Summary ...... 1 1. Introduction ...... 3 2. The Miami Circle Challenge ...... 3 County and City Involvement ...... 5 A Resolution to the Challenge ...... 6 3. Modern Archaeology...... 6 Funding for Archaeological Research ...... 7 The Problem of Looting ...... 8 Economic Growth and Archaeology: A Blessing or a Curse? ...... 9 Private and Public Archaeology...... 10 4. Drawbacks of the Current Approach...... 12 The Cost of Archaeological Regulation...... 12 Supply-Side Problems ...... 13 The Chilling Effect...... 14 Political versus Voluntary Solutions...... 15 5. A Better Way: Improved Institutional Arrangements in Archaeology.... 17 Using Market Incentives to Preserve Natural Resources ...... 17 Using Markets for Archaeological Preservation...... 18 Preventing Looting...... 20 Ensuring Diversity in Archaeology ...... 20 Developing a Registry of Artifacts ...... 21 6. Conclusion ...... 21

i James Madison Institute Policy Report No. 26 July 2000

1. Introduction approach, which forces developers and Both the city of Miami, Florida, and sur- landowners to pay for archaeological work rounding Miami-Dade County strongly and to halt projects in order to accommodate enforce historic preservation ordinances to archaeology, all without compensation. The prevent destruction of archaeological sites in incentives that result do not encourage their districts. Codes are in place requiring voluntary cooperation or preservation. At the any excavator, including a developer, to hire same time, they often may make the devel- an archaeologist to oversee the excavation of opment less attractive to investors. a potentially valuable site and to halt con- The fourth section recommends changes struction of the project, if necessary, to to reduce the limitations and the disadvan- conduct an archaeological dig. The excava- tages of both current archaeological prac- tor or developer must pay for both the ar- tices and the current legal environment, and chaeological oversight and any subsequent changes that would lead to greater gains investigations. from archaeological research. These local ordinances are popular with Archaeology does not have to conflict individuals who value the opportunity to with the interest of landowners who seek the learn from archaeological sites. While the highest value and best use of their property. local ordinances are usually straightforward With the proper incentives and institutional and have been helpful in bringing about arrangements, the goals of owners, develop- research and conservation in some situa- ers, collectors, and archaeologists should tions, they are not getting the whole job seldom be in serious or acrimonious conflict. done. This Backgrounder explains their limitations and disadvantages, and recom- 2. The Miami Circle Challenge mends changes that would lead to better “Centuries or millennia after its creation, the protection of the property interests and formation still seems sacred, partly because development rights of individuals. of its apparent function as a temple or astro- The report first narrates the events fol- nomical device, partly because it has sur- lowing the discovery of the Miami Circle in vived for so long, partly because it sits in the downtown Miami. The controversy sur- middle of a busy, modern megalopolis,” rounding that site and the apparent conflicts reported the Miami Herald.1 Since this story between builders and archaeologists and broke in January 1999, the formation now between the city and county governments known universally as the Miami Circle has highlight the problems of existing regula- generated unprecedented popular interest in tions. archaeology and in the often-neglected The second section gives an overview of history of American Indians. There has been modern archaeology. It describes the strong a contentious debate about what will be done desire of archaeologists, historians, and with the Circle. Solutions ranged from others to conserve elements of our human digging up the stone formation and moving past and thereby to learn more from them. It it to another site for display, to keeping it also describes the sometimes-conflicting intact at its current location as the center of goals of archaeology and economic develop- an archaeological preserve. ment. Despite the important archaeological The third section points out the draw- information that the Miami Circle may backs of the current “command-and-control” contain, its fate has largely been decided in 3 James Madison Institute Policy Report No. 26 July 2000 the political arena. Almost from the start, the trained eye. The 38-foot wide circle, formed combination of media attention and public by a series of 24 holes of various shapes dug interest created the kind of setting that into the limestone bedrock, is clear to a attracts political intervention. Representa- casual observer. The pattern is overlaid with tives from local, state, and federal govern- a series of 200 smaller holes that appear to ment have all weighed in with proposals to have no obvious pattern, and these are save the site. scattered both inside and outside the Circle. When developer Michael Baumann The scene is further confused by the pres- bought the 2.2 acres on the south bank of the ence of a rectangular concrete septic tank Miami River at the point where it empties that appears to be perfectly aligned with the into Biscayne Bay, it was home to a rather Circle. unassuming 1950s-era apartment complex Archaeologists specialize in seeing clearly beginning to show its age. While the things that a layperson overlooks in the property and its hidden treasures remained physical record of the past, and they found unchanged for decades, the surrounding area the site much more intriguing. While the had been turned into expensive real estate. developer awaited permission to resume the With neighbors that include the Sheraton project, archaeologists John Ricisak, the Biscayne Bay Hotel and the Dupont Plaza field director of the dig, and his supervisor, Hotel, it seemed a logical location for the Robert Carr, then director of Miami-Dade upscale project Baumann and his team had County’s Historic Preservation Division, in mind. saw what appeared to be the foundation of The $8 million waterfront property was an ancient structure dug into the limestone to become Brickell Pointe, a commercial buried three feet below the surface. When development that would also include twin the public got news of the discovery, theo- towers housing 600 apartments. Estimates of ries about the origin of the Circle—some of the value of the completed project ranged them very unconventional—began to spread from $90 to $126 million. But progress was through newspapers, radio programs, and the halted when, after clearing the land, an Internet. archaeological find brought unprecedented The fact that ax blades made from mate- media exposure. rial not found in Florida were discovered at While rapidly growing South Florida, the site led some to hypothesize that the and especially Miami, sometimes appear to Circle was the first solid evidence that be bent on development at all costs, Miami- Central America’s ancient Maya civilization Dade County and the City of Miami passed had reached the state in pre-Columbian ordinances in the early 1980s to help pre- times. Others saw the Circle as the founda- serve archaeological sites and artifacts. The tion of an ancient solar calendar, an Ameri- regulations require archaeological concerns can Stonehenge. Still others went so far as to to be considered before building permits are label it the site of ancient contact with extra- granted. While pre-construction excavations terrestrials. While these theories and more were being conducted at the Brickell Pointe were swirling around the air waves and site, archaeologists came across a surprising cyberspace stoking interest in the circle, discovery. archaeologists Ricisak and Carr came to a Like many archaeological finds, the more conventional explanation. Miami Circle is unimpressive to the un- They believed the site was the foundation 4 James Madison Institute Policy Report No. 26 July 2000 for a temple or hut constructed by the necessary permits for Baumann to resume Tequesta Indians, a tribe that inhabited much construction of Brickell Pointe. Acknowl- of South Florida before the arrival of Euro- edging widespread public desire to preserve pean explorers. The Tequestas, whose num- the Circle, Miami Mayor Joe Carollo an- bers may have been as high as 10,000, were nounced that plans were being drawn up to part of what archaeologists call the Glades move it to another site, which would allow Culture. The area the Glades Indians inhab- archaeologists to continue their research ited included “a variety of wetlands: the while construction began. Dissatisfied with Everglades, the large sawgrass marsh in the possibility that the Circle would be Hen[d]ry, Palm Beach, Broward, Miami- moved, however, attorneys for Dade Heri- Dade and Monroe counties,” according to tage Trust unsuccessfully filed for an injunc- archaeologist Jerald T. Milanich.2 While the tion to prevent further construction. Even so, Tequestas thrived in this area, including the Baumann agreed to delay work and allowed region around the mouth of the Miami River, archaeologists to remain for several more wars and disease brought about by contact weeks.5 with European explorers devastated their As local political leaders began to take population. The last members of the culture on an increasingly vocal role in the Miami are believed to have left the area when Circle debate, a growing rift became appar- Spanish colonists abandoned the state to ent between the views of city and county England in 1763, but evidence of their leadership. Carollo, anxious for the city experience has been scarce. According to government that has a history of financial Milanich, “Only a small sample of sites problems to receive the tax revenue that remains. Even sites recorded in the 1950s Baumann’s project would generate, led have been lost to development. It is hard to efforts to allow construction to continue. imagine that early in the 20th century, what Miami-Dade County Mayor Alex Penelas, is now a row of glitzy hotels, apartments, whose budget would receive less of the tax and shops on Biscayne Bay was shell revenue from Brickell Pointe, began to be middens.”3 seen as the leader in the movement to pre- As word spread that the Circle was serve the Circle at its current location. This probably of American Indian origin, saving confrontation came to a head on February it became a cause célèbre among environ- 18, 1999, when the Miami-Dade County mental activists, school children, preserva- Commission voted 10-1 in favor of using tionists, and American Indians. Bobbie eminent domain to obtain the land surround- Billie, spiritual leader of Florida’s Seminole ing the Miami Circle. Indians, captured the sentiment of many Eminent domain allows the government when he declared the site sacred ground. to require a private landowner to sell to the This opinion was given increased weight government if it can be proven that the land when archaeologist Carr was quoted in the serves a public purpose. The county voted to Miami Herald as saying, “It’s some kind of pursue a “slow take,” which would allow it sacred place.”4 to decide not to purchase the site if the price turned out to be too high. City and County Involvement County hopes for purchasing the site While public attention surrounding the fate were given a boost when the state cabinet6 of the site was growing, the city granted the voted to make the Circle a priority for pur- 5 James Madison Institute Policy Report No. 26 July 2000 chase under a state land acquisition program. pressed uncertainty about the origin of the Under the agreement, the cabinet would Circle and refused to rule out a more con- contribute funds for the purchase “at its temporary explanation for its development. appraised value or at 50 percent of the Contrary to the popular opinion that it is of developer’s selling price, whichever is ancient Tequesta origin, Milanich stated his cheaper.”7 A jury trial set to begin October 4, intention in a leading archaeology magazine 1999, was to decide the price of the Circle. to “remain skeptical until sufficient evidence However, last-minute negotiations between is collected to prove that the Miami Circle the two parties reached a settlement that was built by Native Americans one or two avoided the uncertainties of a trial. thousand years ago and is not a 20th-century artifact.”10 Following the agreement be- A Resolution to the Challenge tween Baumann and the county, renewed While the final $26.7 million dollar settle- research at the site strengthened the conclu- ment far exceeded the $8 million Baumann sion that the Circle is, in fact, of ancient paid for the property, county officials were origin. eager to avoid a potentially bigger hit that And while the state and local govern- the trial jury could have imposed. “We have ments were ready to pay millions of dollars avoided a runaway jury from coming back for the land, the public itself seemed unwill- with some outrageous amount,”8 said ing to put forth the substantial sums needed Penelas. Estimates by Baumann’s appraisers for such a deal. Lack of private funds for the had set the value of the land as high as $42 purchase drew the ire of county commission- million. ers when they voted to approve the agree- The $26.7 million price tag included $25 ment. County Commissioner Natacha Millan million for the land and $1.7 million to singled out Indian tribes for failing to raise compensate Baumann for legal fees. The funds towards the Circle’s purchase. “Where state agreed to provide $15 million and the are the people who say this is sacred?” county the remainder. Originally, the county Millan said. “It does not seem like any of could raise only $3 million for its portion of these tribes or the nations have any problems the deal. But a last-minute loan from the San with money.”11 Six months after the cause Francisco-based Trust for Public Land became widespread, the acquisition fund set organization gave it the remaining funds. up to raise money from the public for the The county now has two years to repay the Circle’s purchase had a balance of $4,012.12 loan. While state and local governments were 3. Modern Archaeology moving forward with pledges, questions “The past is big business in tourism and in remained about the authenticity of the site. the auction rooms. The past is politically Florida Attorney General Bob Butterworth highly charged, ideologically powerful and asked, “If this thing turns out to be a septic significant. And the past, or what remains of tank, we’ve just bought a $15 million septic it, is subject to increasing destruction.”13 tank, right?”9 At least one prominent archae- This statement by two of the world’s leading ologist seemed to share Butterworth’s fear. archaeologists, Lord Colin Renfrew and Milanich, curator of archaeology at the Paul Bahn, says a lot about the state of Florida Museum of Natural History at the archaeology today. It is especially true in University of Florida in Gainesville, ex- light of the way that markets are perceived 6 James Madison Institute Policy Report No. 26 July 2000 by archaeologists. The stone’s engraving that marked the The code of ethics of the Society for anniversary of Ptolemy V’s coronation was American Archaeology includes the follow- repeated in ancient Greek and two Egyptian ing statement: languages. Use of the Greek language pro- Whenever possible [archaeologists] should vided the information that scholars needed discourage, and should themselves avoid, to decode ancient Egyptian writing.15 activities that enhance the commercial Because of such discoveries, archaeology value of archaeological objects, especially is often seen as providing a public good, and objects that are not curated in public institu- this perspective has given rise to what is tions, or readily available for scientific called “public archaeology,” in which the study, public interpretation, and display. money for archaeological excavations is Ironically, this view of markets as destruc- provided by the government for use by tive has become, in part at least, a self- certified archaeological experts. The ability fulfilling prophecy. When ethical archaeolo- of archaeologists to use the funds produc- gists refuse to participate in markets, tively is increasing with technology. unethical archaeologists will. It is true that Archaeology has become more expensive markets reward those who disturb sites and in recent times as the methods and tech- damage or destroy their value in doing so, niques of professionals have become more but that need not be the case. advanced and thus their work more produc- Since markets are not part of normal tive. Techniques such as radio carbon dating, archaeology, professionals have increasingly which allow archaeologists to determine the turned to the public sector for support. As a age of artifacts with much greater accuracy result, public institutions and public decision than ever before, adds value to knowledge, making now determine the course of modern but at a cost. According to one expert: archaeology. Faced with challenges such as a Early in this century, archaeology was more lack of funding, the problem of looting, and of a hobby for antiquarians than other people the constant threat of lost opportunities due interested in history. Today, however, ar- to economic growth, archaeologists have chaeology is a true science that makes use of increasingly turned to the government to various scientific methods to locate, exca- help save archaeological records. This vate, remove and date archaeological sites. reliance on government has had mixed Today, archaeologists use sonar, satellite results. imagery, infrared imagery, radio carbon dating, DNA analysis, tree ring analysis, soil Funding for Archaeological Research and pollen analysis, potassium-argon dating, Archaeological discoveries do more than thermoluminescence dating, and a variety of provide amusement for the public. They other sophisticated scientific techniques in allow us to gain valuable insight into the order to not only date objects found in past, which otherwise might remain inacces- archaeological settings but also to discover sible to us. According to Renfrew and Bahn, the pests, diseases, travel patterns, trade “The history of archaeology is commonly patterns, living conditions, political struc- seen as the history of great discoveries.”14 ture, diet, age, migration patterns, homoge- The 1799 unearthing of the Rosetta neity, life span, and other characteristics of Stone in Egypt illustrates the impact a dis- the ancient peoples.16 covery can have on understanding the past. Given these advanced techniques, rising 7 James Madison Institute Policy Report No. 26 July 2000 costs have increasingly become a major illegally is valued at more than $l billion per impediment to quality archaeological re- year, second only in value to the trafficking search. According to Renfrew and Bahn, “A of illegal drugs.21 “The damage in many major project may cost in the order of $1 parts of the world is so serious today that it million, whereas a research grant from the is no exaggeration to predict that there will National Science Foundation will rarely be no undisturbed archaeological sites in exceed $100,000.”17 To make up for this lack many places within a generation,”22 said of funding, some archaeological excavations Brian Fagan, professor of archaeology at the increasingly rely on commercial funds. University of California in Santa Barbara. “Sponsorship has become integral to Looting poses two primary problems for archaeology,” wrote one commentator, “as it the scientific study of archaeology. First, has to a sport like motor racing. As the many artifacts not deemed commercially money flowing from governments and valuable are destroyed in the looter’s rush to universities declines, costs rise, especially obtain the most financially attractive pieces. when the archaeology is underwater.”18 A Second, even the artifacts that are not de- recent excavation in the harbor of Alexan- stroyed in the looting process are generally dria, Egypt, was sponsored in part by the much less valuable to archaeologists than Discovery Channel. It used such recent they would be if they had been excavated advances in technology as the lighting properly. When objects are hastily removed, system used for underwater scenes in the their context is lost. Only when discovered movie Titanic. But such sponsorship rests on and recorded within their proper context can the assumption that the public is willing to archaeological artifacts yield the most infor- buy this type of video programming in mation to professionals. This is why archae- sufficient quantity. And while public interest ologists go to such great lengths to carefully in archaeology is at record levels, this inter- record information as they excavate a site, est is not without controversy. Archaeolo- layer by layer. gists are constantly forced to answer what The pace of looting has led many coun- Bahn called “the predictable claim that tries to enact strict regulations regarding the archaeologists are nothing more than grave excavation and sale of cultural artifacts. robbers.”19 These regulations fall into three major categories. The Problem of Looting 1. The first, and least restrictive, is selective Popular interest in archaeological and cul- controls on exports. While many objects tural artifacts has spurred looting of arti- are allowed to leave a country, the most facts. Once significant artifacts have been valuable are retained. This type of regu- discovered, Bahn explained, “The choice is lation can be found in Canada and Japan. simple: Either we excavate and protect it, or 2. The second type of regulation involves we abandon it to looting.”20 Archaeologists the total prohibition of exports of cultural who are usually employed by universities or artifacts, which is a preferred method of governments and who rely on public funding control in Mediterranean countries. often are financially unable to keep up with 3. Third, some countries go even further by the speed and resources of looters. declaring all cultural artifacts the prop- According to one estimate, the trade in erty of the state whether discovered or antiquities that have been obtained and sold not. “For example, an archaeological site 8 James Madison Institute Policy Report No. 26 July 2000

in the jungle of Campeche or Quintana Economic Growth and Archaeology: Roo is considered to be owned by the A Blessing or Curse? Mexican government even if it has not Even if governments could eliminate loot- been discovered, mapped, or excavated,” ing, archaeology would still face a great said Ellen Herscher of the American threat from the destruction of artifacts and Association of Museums.23 sites by economic activities such as con- Nepal has banned archaeological excava- struction and agriculture. tions almost entirely. The Kathmandu Valley Construction has become a major factor may be home to unimaginably rich buried in the destruction of archaeological artifacts treasures, since the local population used to for one important reason: The places in bury their valuables during repeated inva- which people live and work now are, in sions over the centuries. But the fear that many cases, the same places people have such treasures will be looted and sold abroad occupied for thousands of years. Such is the has led the government to conclude that they case of the mouth of the Miami River where should not be discovered. “If we cannot the Circle was discovered. Therefore, when provide such security, it might be a good a construction project is undertaken in cities idea not to encourage such excavation work: that have long histories—London, Tokyo, or our treasures may be safest under 20 feet of Rome, for example—developers will most earth,” said the government’s newspaper.24 likely encounter archaeological artifacts The countries that have taken strong from cemeteries to ancient buildings. measures to avoid the exportation of ar- In the United States, construction chaeological artifacts from their borders are projects routinely encounter the remains of increasingly assertive in trying to obtain American Indian settlements. As a result, those that were taken in the past. In one various laws have been developed to protect recent case, the government of Turkey was important finds. Federal law requires successful in regaining the Lydian Hoard, a archaeological surveys to be conducted famous cache of coins, from the Metropoli- when potentially important finds are encoun- tan Museum of Art in New York. Less tered on federal land or during construction successfully, Greece has tried repeatedly projects financed by the federal government. through diplomatic channels to obtain the The laws are also designed to curb looting return of the Elgin Marbles from the British on federal land or Indian reservations. The Museum in London. These sections of the penalty for violating the looting prohibition Parthenon frieze were taken from Greece in can include prison time and financial penal- 1806 by Thomas Bruce, seventh Earl of ties. At the state level, most laws focus on Elgin. The Greek government claims that how to deal with archaeological sites where they represent an irreplaceable part of Greek human remains are discovered. In such culture and should be returned. But those cases, professional intervention is usually who advocate keeping the Elgin Marbles in required. London point out that, thanks to the pains- On private land, where the majority of taking care of the British Museum, this archaeological artifacts are found, there are section of the Parthenon frieze is in much relatively few regulations regarding their better shape than what is left in Athens. handling. Those that do exist are generally local ordinances such as the ones in Miami. Miami was one of the first local jurisdic- 9 James Madison Institute Policy Report No. 26 July 2000 tions to place regulations on private land- certificate and the construction project or owners dealing with the treatment of other activity may resume unabated. If archaeological finds. In the early 1980s, important artifacts are found, the board may Miami-Dade County enacted Chapter 16A pursue several options. and the City of Miami enacted Chapter 23 of • It may require “an archaeological survey their respective codes, both historic preser- at the applicant’s expense conducted by vation ordinances. Miami’s code, which an archaeologist approved by the board governs the site of the Circle, was intended containing an assessment of the signifi- to “preserve and protect the heritage of the cance of the archaeological site and an city through the identification, evaluation, analysis of the impact of the proposed rehabilitation, adaptive use, restoration, and activity on the archaeological site.”28 public awareness of Miami’s historic, archi- Archaeological surveys can be obtained tectural, and archaeological resources.”25 at a relatively low cost, usually several The code charged the historic and envi- hundred dollars per day, from profes- ronmental preservation board with the sional archaeologists. Based on the responsibility of identifying areas within the archaeological survey, the project may be city that contained either known or poten- approved or further measures may be tially important historical or archaeological required. sites. Included in these designations were • The board may work with the landowner archaeological zones—areas “which may to redesign a project to better preserve an reasonably be expected to yield information archaeological site. In some cases, build- on local history or prehistory based upon ing over a site may be allowed if the prehistoric or historic settlement patterns.”26 design is such as to preserve the underly- The law requires landowners to acquire a ing archaeological artifacts. Certificate of Appropriateness before under- • Or the board may issue the certificate taking certain activities within archaeologi- with a delay that would allow the project cal zones or sites. to continue but only after allowing more To obtain a certificate, the landowner or time for archaeological work. developer must submit an application detail- ing the site and the proposed project. Based Private and Public Archaeology on the application, the county archaeologist One response to the need for preservation of makes a recommendation on the scope of artifacts on private land has been the devel- archaeological work, if any, that is needed opment of private archaeological conserva- before the certificate is to be granted. The tion groups. These groups, either through Miami code provides that purchase or negotiation with landowners, try No Certificate of Appropriateness shall be to reach agreements that will prevent the issued for new construction, excavation, destruction of old treasures. The Archaeo- tree removal, or any other ground disturbing logical Conservancy, founded 20 years ago, activity until the county archaeologist has is the largest such group in the nation and is reviewed the application and made his modeled after a successful environmental recommendation concerning the required organization, The Nature Conservancy. The scope of archaeological work.27 Archaeological Conservancy’s goal is to If no important archaeological find is acquire important archaeological sites on expected on the site, the board may grant the private lands and then turn them into ar- 10 James Madison Institute Policy Report No. 26 July 2000 chaeological preserves. In many cases, it has billion dollars].”30 found that landowners are willing to donate In addition to the shortage of storage land that is considered historically impor- space for excavated artifacts, there is also a tant. The organization also purchases land critical shortage of documented research on from willing sellers, with revenue generated explored sites and artifacts. A site or artifact from its 16,000 members and private foun- that escapes the bulldozer may still be lost to dations. human knowledge because of inadequate In contrast to the local ordinances and research and documentation. This problem efforts of private groups in the United will grow as the pace of construction and States, archaeological preservation in many rescue archaeology increases. According to countries is undertaken almost entirely by Renfrew and Bahn, “Up to 60 percent of professionals under the regulation of na- modern excavations remain unpublished tional governments. Partly due to increased after 10 years, and it is reckoned that only regulations and government funding as well 27 percent of the digs funded by America’s as more construction reflecting economic National Science Foundation since 1950 growth, the number of excavated archaeo- have ever reached print.”31 logical artifacts has increased dramatically in Given the problems construction can recent years. In England, for example, as bring to archaeological preservation, it is many as 4,000 archaeological excavations easy to understand how many people can take place each year, nearly five times as conclude that the two activities are incom- many as were conducted in 1989. patible. But an important connection exists This has led to a dilemma of sorts, an between the two fields. Construction is embarrassment of riches. “England’s ar- responsible for finding several important chaeological archives are in crisis due to a archaeological treasures. The Miami Circle lack of storage and display space,”29 accord- is one of the most recent examples of an ing to The Daily Telegraph. The Museum of archaeological find being unearthed due to London has only 10,000 items on display but construction, but this type of discovery has more than a million more are in storage and been occurring for centuries. not accessible to research. Dealing with While Napoleon took more than 60 these growing troves has become increas- scientists to explore Egypt and to record the ingly problematic. findings of his invasion, the most important In Japan, where centuries-old artifacts lie discovery of that expedition, the Rosetta beneath most modern buildings, construction Stone, was made by an army officer during has also led to a rapid increase in what is the construction of a fort.32 Such serendipi- known as rescue archaeology. “Processing tous discoveries have been crucial to the the voluminous data cannot keep pace with field of archaeology over the years and thus its extraction from the ground, so there is a to our increased understanding of the past. mountainous backlog of material to be To promote such an understanding, it is published,” according to Renfrew and Bahn. important that the interests of both construc- “The country now has a critical shortage of tion, which uncovers many sites, and archae- storage space, exacerbated by a fivefold ology, which can provide the understanding increase in [mostly salvage] excavations of those sites, work together cooperatively during the past 15 years [there were 8,200 in and efficiently. 1991, which cost 98 billion yen, about $1 11 James Madison Institute Policy Report No. 26 July 2000

4. Drawbacks of the Current Thus it is the owners of land, not developers, Approach who pay for archaeological digs and devel- Archaeology today faces many challenges in opment delays when such costs are its quest to provide a greater understanding regulated. of the past and, as a result, governments In the case of the Miami Circle, around the world have passed various laws Baumann, like all other builders, knew about and regulations. But many of these regula- the costs of hiring the monitoring archaeolo- tions have not only worsened the problems gist, the potential for delays, and the they were designed to alleviate but have also possibility of additional research costs if created new problems. Governments have interesting artifacts were unearthed during imposed higher costs on society and have excavation. Those influences on the cost of offered counterproductive incentives to property and the higher sale prices and rents landowners and others, thereby often de- for newly developed properties are all fac- creasing the number of productive discover- tored into a builder’s calculations. Develop- ies. The political influence in archaeology ments in the historic areas of Miami-Dade and the reliance on command-and-control County must provide a return as high as methods help to generate these problems. other potential developments nearby or else developers will go elsewhere. Again, it is The Cost of Archaeological Regulation landowners with property eligible for devel- Many supporters of the current approach to opment, together with buyers and renters of archaeological regulation believe that devel- property in the areas affected by the regula- opers should cover the costs of rescue ar- tion, who shoulder the burden of regulation, chaeology and other activities, since it is not developers. their actions that threaten to destroy valuable Unanticipated costs paid by developers, sites. However, the impact of these costs is however, are a different matter. While more complicated than it seems. In many Baumann knew that delays were possible, he locations, including Florida, what is below may not have anticipated the long delay the surface of private land (other than human involved with the eminent domain proceed- remains) belongs to the landowner, unless ings that occurred. To the extent that those subsurface resources have been sold or costs were not reimbursed by the county and given by contract to others. This means that its partners in the taking of the property, he the costs affect landowners directly and was forced to bear them. On the other hand, developers only indirectly, and the regula- if development had resumed, a lawsuit by tions designed to place the costs on develop- the developer might have placed the burden ers are generally unsuccessful in doing so. of the delay on the county and its taxpayers, Investment capital, unlike land, is mobile thereby reimbursing Baumann for the unex- and can be moved to more valuable uses. pected costs. When development costs are raised, they are The Miami Circle episode showed that shared by those who sell the land for devel- when publicity and popular support for site opment and the buyers (and ultimately preservation exist, it is possible under the renters) of the developed property. As a current rules to fully compensate developers result, those who buy or rent the developed and those who finance similar projects— property pay more, and the value of land that even those with delays and cancellations remains to be developed is diminished.33 such as in the Circle case. However, uncer- 12 James Madison Institute Policy Report No. 26 July 2000 tainty remains as to possible future outcomes among many advocates for stricter regula- and this uncertainty makes development less tions. attractive and may even slow its progress. However, research has documented the Only optimistic developers who expect to negative impact of regulations designed to escape new costs will proceed as before and protect endangered species. When landown- expose themselves to the possible costs. It ers are forced to pay the price of protection, has yet to be determined what extent the either directly or in terms of lost uses of uncertainty and the possible increased costs land, they are motivated to ensure that they place on future developers and what chilling do not become the unwitting hosts of any effect they will have on future development endangered species.35 The Endangered in Miami. Species Act (ESA) has frequently had an In addition to the unintended burden impact directly opposite of what it was archaeological regulations place on land- intended to have. owners, other problems may have effects According to Michael Bean of the Envi- that are less obvious but at least as important ronmental Defense Fund, who is often given on archaeological research. credit for writing the Endangered Species Act, there is “increasing evidence that at Supply-Side Problems least some private landowners are actively While much of the cost involved in archaeo- managing their land so as to avoid potential logical regulations may not be borne directly endangered species problems.” People do by the developer, the regulations still en- this not out of “malice toward the environ- courage behavior that is unproductive from ment,” he said, but because of “fairly ratio- an archaeological standpoint. The decreased nal decisions, motivated by a desire to avoid property values experienced by landowners potentially significant economic con- and the uncertainty faced by developers straints.” This behavior, according to Bean, motivate both parties to ensure that no is a “predictable response to the familiar artifacts are found on their land. In that way, perverse incentives that sometimes accom- they can avoid the cost of an investigation. pany regulatory programs, not just the en- Many archaeologists have failed to dangered species program but others.”36 realize this incentive problem and, in fact, Economists are finding evidence that Bean some have actually encouraged it unwit- is correct in his concern.37 tingly. According to one leading advocate of Many regulations have unintended con- archaeological regulations: sequences. As laws lean toward treating So-called cultural properties are like envi- archaeological treasures like endangered ronmentally endangered species. First, they species—that is, penalizing the people on are non-renewable resources: once ex- whose land they appear—we should expect hausted or destroyed, they cannot be replen- the results to be similar. That is, we should ished or replaced. Second, they are not expect to see landowners and developers anyone’s property and no one can properly actively avoiding archaeological finds and, be said to own them . . . Hence, no one has a in fact, there is evidence that this is happen- claim to restitution or restriction based on an ing. According to one professional archae- alleged right (for example, right of owner- ologist, “Some builders even offer me ship) to them.34 money not to find anything.”38 This position enjoys widespread support Even after some artifacts are found, a 13 James Madison Institute Policy Report No. 26 July 2000 developer may not want to cooperate with guy and for letting them have 50 feet. What archaeologists for fear that additional dis- motivation is there to let them go beyond coveries may impose further costs. In the that?”42 case of the Miami Circle, the developer was Regulations that deny gains to landown- reported to be very cooperative with archae- ers or developers from the sale of artifacts ologists initially. Even though a judge de- found on their property can also increase in nied an attempt to halt Brickell Pointe’s the problem of looting. Without a financial development early on, Baumann allowed interest in their preservation, landowners archaeologists to continue their research have very little incentive to stop the looting (albeit with restrictions) while he went of artifacts, even on their own property. To forward. As described in the Miami Herald, prevent looting is expensive, either in terms “He [Baumann] has been working side-by- of costly security measures, or in terms of side with Carr’s crew, clearing out the post the perceived threat from looters who may holes, helping to get the area prepped for resort to intimidation to gain access to mapping and photographs.”39 According to property. If, by preventing the looting, the one of his attorneys, Baumann was leading landowners cannot profit from the artifacts efforts to save the Miami Circle early on. they protect, then the costs clearly outweigh “Up to now, the only person who has done the benefits. As a result, they should be anything constructive to save the Circle is expected to be less willing to protect the the developer. Everyone talks, but no one artifacts in most cases. The problem is made dips into their pocketbook, other than the worse as the regulations that penalize arti- developer,” the lawyer said.40 fact ownership are made more stringent. If But while any developer might cooperate antiquities are treated in the same way as when costs are low, he or she has an incen- endangered species and no one is allowed to tive to prevent such a process from dragging own them (as is true in many countries), on and thus raising costs substantially by then: delaying the revenues that begin upon 1. The problem will be maximized. project completion. It is the archaeologists 2. There will be no potential benefit to the and society in general, rather than the devel- landowner or developer from protection. opers or landowners, who ultimately gain 3. All costs undertaken to preserve artifacts from any new discovery under the current will be a net loss to the landowners. arrangements.41 Developers want to get the process over as quickly as possible to protect The Chilling Effect their investments. Even when compensation Current archaeological regulations can also through the eminent domain process is lead to a “chilling effect” on development possible, there is no guarantee. Given that and economic growth. How large is this even well-intentioned cooperation could effect? It is often hard to weigh because its lead to unexpected delays or even cancella- costs, such as decreased economic growth tion of a project, a risk-averse developer will and lost future development, are not easily attempt to avoid such a situation. Baumann’s observable. attorney correctly captured the predicament: But in the case of the Miami Circle, one “Because of the way things are happening thing is easily estimated: the cost the city and the way he is being treated, he is being must pay in forgone tax revenue from the punished for being a nice guy and a good cancellation of the Brickell Pointe develop- 14 James Madison Institute Policy Report No. 26 July 2000 ment. According to estimates published in ing to county archaeologist Ricisak. An the Miami Herald,43 the project could have attorney for the project implied a chilling been worth approximately $90 million when effect when the Miami Herald was told that completed. (Estimates from Baumann’s the potential developers would “be watching attorneys put the value of the project closer how this [the Miami Circle] is handled. I to $126 million.) This would have led to tax wouldn’t say the project is in grave jeopardy, revenues of about $1.1 million per year for but it clearly gives a developer a pause. We the city, $647,000 for the Miami-Dade understand that the issue is there.”45 County government, and more than The loss of millions of dollars in tax $900,000 for the Miami-Dade County school revenue when projects such as One Miami district. Center are delayed or canceled include part While the advocates of archaeological of the true cost to taxpayers of archaeologi- preservation often say that “you cannot put a cal preservation under current laws. Failing price on the past,” it is important to consider to take those costs into account will invite the cost before deciding to allow a construc- inefficiencies and inequities as public deci- tion project to continue. While many believe sions are made. the government should be responsible to While these costs come primarily in preserve archaeological finds, it clearly is terms of lost economic opportunities, the also responsible to provide services such as chilling effect could also lead to losses in education and law enforcement. Given its terms of archaeological discoveries. Lack of limited resources, all the costs should be funding is a major problem in the field. considered when making such decisions. As Hershel Shanks, publisher of two leading Mayor Carollo pointed out, “I have the archaeology magazines, says that “archae- responsibility to do what is right for past ologists are, as a group, poor as church civilizations. But I have a greater responsi- mice.”46 But they have often benefited from bility to the present civilization.”44 the assistance of developers who are poten- While the loss of revenues from the tially wealthy. Construction threatens ar- Brickell Pointe development may be large, chaeology by destroying potential sites and some, including Carollo, expressed concerns simultaneously uncovering sites that might that other even more valuable projects will otherwise remain unknown. By potentially be lost. To the extent that Miami is per- discouraging construction in areas that may ceived as a risky place because of strict be archaeologically rich, regulations thus archaeological regulations, developers may have the unintended side effect of preclud- look for alternative sites that are less likely ing important discoveries.47 Solving these to contain artifacts and not subject to regula- problems and opening the door to greater tions. This could lead to further financial opportunities for archaeological work while losses for the governments that enact the minimizing the cost of doing so is a worthy regulations. goal indeed. A proposed $1 billion multi-use development, One Miami Center, has featured Political versus Voluntary Solutions prominently in discussions of the long-term Politicians are often forced to be more effect of the Miami Circle conflict. The site concerned with the impact of their decisions is across the river from the Circle and could on election day than on results over the contain even more valuable artifacts, accord- longer-term future. Frequently, decisions 15 James Madison Institute Policy Report No. 26 July 2000 that harm the public over time result. An millions of dollars for the purchase. equally poor track record is apparent in While research since that time has led to governmental decisions on scientific issues more evidence that the site is of ancient that are made politically, rather than by origin, there are still reasons to doubt the specialists and investors with their own political system’s ability to decide which wealth at stake.48 Even among highly re- budget allocations would save key archaeo- spected national governments, failures logical sites most effectively. Politicians abound. Two examples are the Japanese strive to please, or at least to not offend, government’s decision to promote develop- voters. Yet voters know very little about the ment of the fifth-generation supercomputer case, the cultural values at stake, or about instead of the personal computer, and the the value to the larger archaeological pic- U.S. government’s promotion of ethanol ture. Nor do they have any idea of how this research. These failures occurred because and other sites might compare in value or political decisions are seldom made by how that value might compare to the hospi- weighing the scientific costs and benefits. tal, school, or other public goods that may be In the field of archaeology, decision- sacrificed if tens of millions of dollars are making processes are further complicated by spent here. the sensitive nature of issues involving Compare that politician’s dilemma with ethnic or religious differences and the per- the decision facing the Archaeological ceived injustices of previous generations. As Conservancy or even a consortium of such Renfrew and Bahn point out, “Archaeology groups that might seek to privately secure has become a focal point for complaints and investigate the site, perhaps to sell some about the wrongdoing of the past.”49 This of the artifacts later after they have been issue plays a central role in the debate of the properly recorded and researched. In the return of cultural artifacts like the Elgin latter case, the important constituents as Marbles, which were removed from Greece potential donors will know far more about while it was under the rule of an occupying the relevant tradeoffs. Such a private group power. In testimony before the state cabinet, is likely to err less often because of its need one American Indian declared that “if no and its ability to deal with knowledgeable, one took on the responsibility to save this even passionate, people who sacrifice to [Miami] Circle and the Circle was destroyed, finance the work. Organizations that have it would be the same as a statement that we made sound decisions and few errors will are destroying life here on earth with devel- recruit alert donors from competing groups. opment.” In a situation where such claims Consider also government’s penchant are stated and accepted, cultural understand- for short-term solutions. The purchase of the ing is likely to take a backseat to political Miami Circle probably does not improve the calculations. Not wanting to be seen on the ability of archaeologists (or others) to better wrong side of the debate, State Agricultural preserve future important discoveries. The Commissioner Bob Crawford proclaimed, “I decision to preserve the Circle was made like Indians.” Concerns over the authenticity politically rather than voluntarily by those of the site, including Attorney General who will pay. At the same time, the county Butterworth’s comment that the Circle may government insisted on an all-or-nothing turn out to be a septic tank, did not stop the solution rather than rescue archaeology. As a state or county government from pledging result, the cost may have been much higher 16 James Madison Institute Policy Report No. 26 July 2000 than it otherwise would have been. While looting, which both damages archaeological everyone agrees that saving all-important sites and distributes artifacts bereft of historic and prehistoric sites would generate knowledge about their context and history. benefits, limited resources dictate trade-offs, Many archaeologists believe that the even in a relatively wealthy place like market for artifacts is the enemy of archaeol- Miami. Other issues such as education and ogy, as indicated by the code of ethics law enforcement compete for the same quoted earlier. In a sense, the market is an budget revenue. enemy today. Archaeological sites and Agreeing to spend $26 million to pre- artifacts are not protected and are not made serve this site has done nothing to secure the valuable to landowners by property rights preservation of future discoveries. What will that are secure and easily defended. In happen, politically or otherwise, the next addition, the market for artifacts today is time an important site is discovered? No one conducted without the participation of knows. careful archaeologists. However, the arti- The state failed to adopt a “look before facts market that today causes problems for you leap” policy that would have required good archaeology could become its greatest questions about the site’s authenticity and booster. importance to be answered before a purchase was agreed to. If the site proved to be Using Market Incentives to Preserve inauthentic, public support for archaeologi- Natural Resources cal funding could be severely curtailed. The idea of using markets to preserve natu- While archaeology currently enjoys high ral resources, including wildlife, is not public interest, that enthusiasm could be unusual. Mounting evidence is showing that dampened if the public views such decisions markets perform this task quite well.50 as mere bowing to political pressure groups One example is the CAMPFIRE program rather than a legitimate historic preservation in Zimbabwe, which allows local villages to effort. As long as decisions over archaeo- profit from the preservation of elephant logical preservation continue to be made in herds and other wild animals. This program the political arena, we should expect politi- has shown that markets can be a key part of cal considerations to dominate, rather than the drive to sustain their populations. primarily scientific or historical consider- Prior to the program inception, villagers ations. found it difficult to protect their crops, homes, and sometimes their lives and 5. A Better Way: viewed wild elephants as dangerous com- Improved Institutional Arrangements petitors. They often killed the animals and in Archaeology poaching was rampant, as villagers ignored The Miami Circle episode illustrates some of and sometimes even helped poachers. Under the problems that engulf archaeology today. the CAMPFIRE program, local communities One problem is a reliance on regulations that are allowed to profit from fee hunting and may discourage those who find artifacts recreation programs that involve the el- from preserving them in the future. Another ephants. The fees generated by hunting is the lack of sufficient funds to ensure that expeditions ($12,000 or more for a single future archaeological finds will be pre- elephant) are a financial boon to a village served. Finally, a continuing problem is where the average income per family of 17 James Madison Institute Policy Report No. 26 July 2000 eight is about $150 per year. Even with this Using Markets for Archaeological hunting, elephant populations are increasing Preservation because the financial incentives the villages The market institutions and incentives that receive ensure that adequate numbers of help preserve elephant populations in Zim- animals are preserved for the future. They babwe can also encourage the preservation resist the temptation to allow over-hunting and study of archaeological artifacts. The and poaching because they want to have two primary changes needed to reap these adequate numbers of elephants to profit benefits are: 1) to give private landowners from future hunts. Today, villagers view the clear and transferable property rights to the elephants as beneficial and the poachers as artifacts found on their land, and 2) to allow competitors. Since the program’s introduc- for the free import, export, and sale of tion, poaching has decreased and villagers legally owned artifacts so that an open have become the protectors of elephants and market can develop. other species. This would be a dramatic change from This change in incentives has had dra- the status quo. Current regulations in many matic results. From 1989 to 1995, elephant countries, together with the currently populations in Zimbabwe grew by 14 per- prevailing anti-market code of ethics in cent while in much of the rest of Africa, archaeology, discourage the preservation of where traditional regulations were relied on, artifacts. This command-and-control the herds decreased by 24 percent.51 Once approach imposes costs on landowners, the value of elephants to society was not developers, and those who would later only recognized but also shared with those benefit from using the developed sites. It who were most closely involved with them, also fails to reward the best stewards, to the animals’ value increased. Those from reward added cooperation from landowners whom stewardship and sacrifice were asked and developers, and to gain more support were given an ownership stake in return. As from enthusiastic followers of archaeology. normally happens in markets with property If landowners were encouraged to contract rights, the fruits of their stewardship in- with archaeologists to explore and develop creased and were shared with buyers from promising sites, far more value would be the general public—those who paid for produced and potentially valuable sites access to the elephants through tourism, would be zealously protected against looters photo opportunities, and hunting experi- and “pot hunters” who disturb sites and ruin ences. Today, there is a saying in Africa them for serious study. In contrast, today’s about wildlife there: “If it pays, it stays.” approach of seizing control over excavation The Zimbabwe experience is not an and over the artifacts found does the oppo- isolated instance. A report by the President’s site—it removes the incentives to preserve, Council on Environmental Quality52 and a research, and thus add market value to book, Enviro-Capitalists: Doing Good While artifacts. Good intentions are not enough. Doing Well,53 cite numerous examples of Good results will require better methods. private organizations, both nonprofit and A proper market in artifacts would pro- profit-making, that protect the environment duce more revenue than even today’s market privately using the tools of the marketplace. does, which is understandably shunned by archaeologists. The prospect of sharing in

18 James Madison Institute Policy Report No. 26 July 2000 that revenue would encourage both land- or the sharing of any resulting revenues. owners and developers to recognize the Some would yield little in the way of mar- value of archaeological resources that might ketable artifacts, just as many drilling opera- be discovered on their land, thus encourag- tions fail to turn up marketable petroleum ing conservation and proper development. A reserves. But drilling often produces valu- fully researched artifact is worth far more, able information about the local area even because with it comes the fullest story that when no marketable petroleum is found. can be told about its context and history. Similarly, archaeological exploration may Landowners with clear and secure prop- produce valuable knowledge from a site erty rights to artifacts discovered on their even when no artifacts with market value are land and with the knowledge that a market found. Expectations of a find give landown- for properly researched and recorded arti- ers an incentive to protect potential sites and facts exists, would be motivated to seek to cooperate in their development. skilled archaeological help in finding and As rewards grow for better archaeology, developing additional value from the arti- the demand for better archaeological science facts. The antiquities would then find their will grow, too. In this (proposed) market as way to those museums or collectors who in others, we should expect that reputation valued them, much as the market for paint- matters and will be rewarded. Archaeolo- ings of the masters or the market for an- gists, some of whom may be affiliated with tiques works today. More artifacts would be specific museums, would be rewarded in the preserved and fewer of those that are discov- market for good track records in archaeol- ered would be unused and stored in costly ogy. An artifact marketed with a history warehouses. developed by a reputable firm, especially Just as the CAMPFIRE program in one affiliated with a reputable museum, is Zimbabwe has made wildlife the friend worth more to collectors. rather than enemy of local villagers, proper Such an artifact would also increase reform could make archaeological finds a public support of archaeology. As more are benefit to landowners and developers rather discovered, prices would decline for the than a burden. Archaeologists would be seen most plentiful items, even as their value was by those who own or control promising sites, enhanced by the accompanying certificates including those about to be developed for of legitimacy and explanations of context other land uses, as the discoverers and and interpretations of their historical signifi- creators of value that they really are. cance. The increased flow of value would We could expect contractual arrange- encourage and enable more people to be- ments between archaeological groups and come collectors. In addition, public support landowners to develop to explore prospec- would be fostered by the cooperative nature tive archaeological sites, just as they have of the value-producing voluntary market in developed between landowners and petro- artifacts. When cooperation with archaeolo- leum exploration companies. The contracts gists is voluntary, as well as potentially would specify up-front payments or bonuses, rewarding, archaeologists should be appreci- if any, together with agreements about the ated, not resented. In contrast, the current timing and time allowed for excavating and political control has led to contentious documenting sites and its artifacts, prior to debates such as the one over the fate of the preparing articles for sale, and also royalties Miami Circle. Minimizing the role of politi- 19 James Madison Institute Policy Report No. 26 July 2000 cal decision making and involuntary seizure gists’ supervision, looters could be taught of rights would give archaeology a more proper technique and thereby preserve much favorable image. of the understanding of the past that is currently being destroyed. Preventing Looting Archaeologists could gain additional One major problem is the indifference to funding for their excavations and research looting on the part of owners who could, at a by selling many of the artifacts of which cost, prevent it. The current regulatory museums and government warehouses have regime is failing. According to Hershel numerous duplicates, sometimes a thousand Shanks, a prominent critic of the current times over. As Shanks tells it, “It is not approach, “Campaigns to put antiquities simply that they (duplicate artifacts) are not dealers out of business and to discourage needed. Worse, they cannot be stored; there private ownership by vilifying collectors is no longer any space in government and have not had any significant effect on loot- museum stores to house and conserve them ing.”54 A market for properly researched in a way that would make them available to artifacts, complete with descriptions of the scholars. It would be better to enter appro- context and importance of the objects, priate records into a computer, to photograph however, should reduce this problem. the objects, and then to sell them.”57 Shanks Looted artifacts should become much less prefers to give first choice in any sale to valuable. Currently, plundered artifacts are public institutions, but this would be not the only ones available to collectors in many necessary to ensure proper research or public countries and regions because of tight re- display. strictions on the movement and sale of legitimate finds. Indeed, in some places Ensuring Diversity in Archaeology professional archaeologists cannot gain Finally, a market in properly researched access to legitimate artifacts because restric- artifacts would preserve a broad spectrum of tive policies have discouraged their collec- archaeological artifacts. The debate over the tion and discovery. In those countries, better fate of the Miami Circle, much like the access for archaeologists and better protec- debate about archaeological preservation in tion for sites could be greatly aided by use of the rest of the world, has been characterized markets for artifacts.55 by charges of one culture dominating or Shanks has argued that market system destroying the history of others. But by their would decrease looting because looters very nature, markets provide a solution to could be gainfully employed in far more this problem, one that governments’ efforts productive archaeology. Today, looting have often failed to address successfully. provides a profitable escape from traditional Bringing collectors, hobbyists, amateurs, methods of employment such as farming. professionals, and museums into market “Why not employ them [looters] to do the cooperation would allow a wide variety of same thing they are doing, but under the views and values to be reflected. While supervision of archaeologists?”56 Shanks some collectors may only be interested in asks. Much of the problem now is that pot Egyptian artifacts, others may value Roman hunters rapidly rummage through sites, or Greek relics, and others may want arti- destroying much of a find’s valuable contex- facts of American Indian origin preserved. tual information. Working under archaeolo- When preservation decisions are made in the 20 James Madison Institute Policy Report No. 26 July 2000 political arena, with its “majority rules” 6. Conclusion mentality, diverse views often are poorly The discovery in 1998 of an ancient Ameri- represented. Markets, in contrast, cater to can Indian formation in downtown Miami individual tastes and preferences in all their sparked a debate about modern society’s diversity. Small niche markets can develop ability to preserve and appreciate past cul- that would never be supported by a majority tures and their history. After a long and often of those interested. Allowing a market in contentious year of political and legal wran- archaeological artifacts to develop would gling that was publicized worldwide, the increase the diversity of artifacts that are Miami Circle was purchased with state and preserved and studied. county funds in the amount of $26.7 million. But the government’s purchase, made in Developing a Registry of Artifacts the context of eminent domain proceedings, As their knowledge of the past and their has done little to clarify how future archaeo- scientific tools improve, archaeologists logical finds will be preserved. In fact, the sometimes revisit the trove of artifacts from high price of the current deal raises ques- a given site to learn more from them and tions about how frequently it will be politi- perhaps to reinterpret them. If the artifacts cally feasible to preserve future finds this are scattered, how would this occur? One way. And the question of how to go about feature of markets is that secure property archaeological preservation is not limited to rights in valuable and unique assets are Miami or to Florida. usually registered and frequently insured Around the world, as populations and against theft or destruction as well. So it economies grow, people increasingly come would be natural to develop such a registry into contact with remnants of past cultures for valuable pieces. Insurers might demand and civilizations. Many potentially important it and owners would cooperate to gain and sites are lost regularly to construction. Agri- preserve clear, transferable, and insurable culture and the natural elements also take a titles. And when an artifact is first sold, after toll. The problems of preservation are fur- being studied and recorded, the sale could ther exacerbated by a lack of funding for include a contractual stipulation that tempo- archaeological research and by rampant rary return for further study could be de- looting, which destroys sites to meet the manded by the archaeologist or firm selling increasing demand of international collec- it. Most collectors would prefer artifacts tors. thought to be unique and important enough Most nations have developed laws and to be subject to such a stipulation. And their regulations to prevent the destruction of the desire for clear and transferable title and historical record from construction or loot- insurability would encourage buyers and ing. These have generally failed to curb sellers to keep the registry current if the looting and have put pressure on the limited artifact is sold. It would be far better that resources of archaeologists who try in vain collectors, while enjoying the artifacts, to stay ahead of the farmers, developers, should also pay for their storage and safe- plunderers and the forces of nature. These keeping of the vast troves of historic trea- regulations, together with a code of ethics sures, rather than having archaeologists or that strongly discourages archaeologists museums bear those costs. from marketing properly researched artifacts, often have unintended side effects. 21 James Madison Institute Policy Report No. 26 July 2000

They encourage the hiding or even the 5. Chardy, Alfonso, “Penelas Suggests Buying Circle Site,” Miami Herald, February 6, 1999. destruction of artifacts by builders and 6. The state cabinet is composed of seven members; the governor, the others who see them as a burden; they dis- secretary of state, the attorney general, the comptroller, the insurance courage landowners and developers from commissioner, the agriculture commissioner, and the education commissioner. cooperating with archaeologists; and they 7. Bridges, Tyler, “Miami Circle Given Priority for State Purchase,” contribute to the demand for looted artifacts Miami Herald, May 26, 1999. by reducing the supply of legitimate arti- 8. Bousquet, Steve, “State’s Cost Rise in Deal for Circle,” Miami facts. Herald, September 29, 1999. To remedy these problems, an approach 9. Ibid. to preservation that relies on markets and the 10. Milanich, Jerald T., “Much Ado About a Circle,” Archaeology, incentive to find, enhance, and share in September/October 1999. markets can supplement or even replace 11. Fienfrock, Don, “Commisioners Rip Tribes for Not Funding Circle regulatory dictates. Similar approaches are Deal,” Miami Herald, October 2, 1999. helping to protect natural resources and 12. Whoriskey, Peter, “County Wins Right to Buy Circle from wildlife, such as elephant herds in Zimba- Developer,” Miami Herald, June 29, 1999. bwe. Granting clear and defendable property 13. Renfrew, Colin and Paul Bahn, Archaeology: Theories, Methods rights in artifacts to landowners and allow- and Practice, (London: Thames and Hudson, Ltd., 1996) p. 509. ing an open international market to develop 14. Ibid., p. 19. to trade properly researched and well-mar- 15. “Rock of Ages,” Archaeology Odyssey, September/October 1999. keted artifacts could help ensure that more artifacts are found and preserved, at a 16. Oyer, Harvey E., memorandum to the authors, August 10, 1999. greater number of more diverse sites. Doing 17. Renfrew and Bahn, p. 523. so could also ensure that looters and other 18. Fay, Stephen, “Cleopatra Lives,” Conde Nast Traveler, May 1999. destructive forces could threaten and disturb 19. Bahn, Paul G., “Digging Up the Past—without Recriminations,” fewer archaeological sites. Wall Street Journal, September 7, 1999.

20. Ibid.

21. Nafziger, James, “International Penal Aspects of Protecting Cultural This research was supported by The James Property,” The International Lawyer, Vol. 19, No. 3, 1985, pp. 835-852.

Madison Institute and the Political Economy 22. Fagan, Brian, The Ethics of Collecting Cultural Property, Phyllis Research Center. The authors wish to thank Mauch Messenger, ed., (Albuquerque: University of New Mexico Press, 1989), p. xvi. Eli Friedman, Harvey E. Oyer III, John Ricisak, Tom E. Roll, and the University of 23. Herscher, Ellen, “International Control Efforts: Are There Any Good Solutions?” The Ethics of Collecting Cultural Property, 1989, p. 118. Miami Law School seminar participants for 24. Sason, David, “Considering the Perspective of the Victim: The insightful comments. Antiquities of Nepal,” The Ethics of Collecting Cultural Property, p. 69.

Endnotes 25. Miami Code Section 23-1.

26. Miami Code Section 23-2 1. Merzer, Martin, “Archaeologists Sift Stunning Evidence of Ancient Culture,” Miami Herald, January 3, 1999. 27. Miami Code Section 23-5.

2. Milanich, Jerald T., Florida’s Indians: From Ancient Times to the 28. Miami Code Section 23-5. Present, (Gainesville, Fla.: University Press of Florida, 1998), p. 123. 29. Behan, Rosemary, “Ancient Artifacts Buried in Archives,” The 3. Ibid. Daily Telegraph, July 22, 1998.

4. Whoriskey, Peter, “The Holes, the Eye, the Axes: Mysteries May Go 30. Renfrew and Bahn, p. 526. Unsolved,” Miami Herald, February 14, 1999. 31. Ibid., p. 535. 22 James Madison Institute Policy Report No. 26 July 2000

32. “Rock of Ages,” p. 12. 47. Archaeologists involved with the preservation of the Miami Circle have expressed to the authors their doubt that the controversy 33. As a side effect, owners of already developed properties experience surrounding the discovery has resulted in a chilling effect on coopera- increased wealth as rental and sale prices rise. Buyers and renters of tion. They pointed out that more developers have been coming forward such properties see their costs of living or of doing business rise. with questions about how to handle archaeological finds. That increased concern about knowing the rules, however, may simply reflect increased 34. Warren, Karen J., “A Philosophical Perspective on the Ethics of awareness of the bind they are in. Developers eager to cooperate would Collecting Cultural Properties Issues,” The Ethics of Collecting seek such information, but so also would those seeking simply to Cultural Property, 1989, p. 19. minimize their costs. We are inclined to expect cost concerns to be high on the priority list of a profit-seeking developer. A measure to decrease 35. Stroup, Richard L., “The Endangered Species Act: Making Innocent their cost should automatically act to increase their cooperation. Species the Enemy,” Policy Series Number 3, Political Economy Similarly, a market to increase their return for recovered artifact should Research Center. April 1995. also increase their eagerness to cooperate with archaeologists.

36. Ibid. 48. See Kealey, Terence, The Economic Laws of Scientific Research (London: MacMillan Press LTD), 1996. 37. Stroup, Richard L., “The Economics of Compensating Property Owners,” Contemporary Economic Policy, Vol. 15, Oct. 1997, pp. 55- 49. Renfrew and Bahn, p. 516. 65. See also Lueck, Dean, and Jeffrey Michael, “Pre-emptive Habitat Destruction under the Endangered Species Act,” PERC Working Paper 50. Anderson, Terry L. and Donald R. Leal, Free Market Environmen- (WP 99-1). talism, (San Francisco: Pacific Research Institute), 1991.

38. Nancy Marie White cited in “Ancient treasures lost and found,” 51. Anderson, Terry L. and J. Bishop Grewell, Forthcoming. “Property Tampa Tribune, March 14, 1999. Rights Solutions for the Global Commons from the Bottom-up or the Top-down?” The Duke Environmental Law and Policy Forum, Duke 39. Ancrum, Nancy, “Miami Circle Mysteries Pose Dilemma for University, Durham, N.C. April 2000. Developer,” Miami Herald, February 4, 1999. 52. Council on Environmental Quality, Fifteenth Annual Report 40. Garcia-Toledo cited in Merzer, Martin and Alfonso Chardy, (Washington D.C., 1984), pp. 362-429. “Developer Gets Tough: No Further Delays, Officials Are Told,” Miami Herald, February 10, 1999. 53. Terry L. Anderson and Donald R. Leal, Enviro-Capitalists: Doing Good While Doing Well, (Lanham, Md.: Rowman & Littlefield, 41. The general public will probably benefit from any new discovery Publishers, 1997). based on potential new historical or scientific knowledge that may be produced. This does not necessarily alter the decision-making process of 54. Shanks, Hershel, “Let’s Do What We Can! The Impossible Will Take the developer who is still facing financial incentives to expedite the Forever,” Archaeology Odyssey, November/December 1999. process. 55. Some countries may wish to restrict the market by giving regulatory 42. Merzer and Chardy, op. cit. powers to cultural ministries. For example, key artifacts might be studied properly but might never be allowed to leave the country, while 43. Chardy, Alfonso and Don Finefrock, “It’s History vs. Taxes,” Miami only duplicate or less important pieces were marketed to help pay for Herald, February 5, 1999. the added protection and additional archaeological efforts there. While this approach would not enjoy all the benefits of an unrestricted market, 44. Whoriskey, Peter, “Price Will Be an Issue if Land Is Seized,” Miami it may be a more politically viable alternative given the severe distrust Herald, February 16, 1999. of markets by many in the archaeological community.

45. _____, “How To Grow Downtown and Respect Past?” Miami 56. Shanks, Hershel, “How to Stop Looting: A Modest Proposal,” Herald, February 18, 1999. Archaeology Odyssey, September/October 1999.

46. Shanks, Hershel, “The Great MFA Exposé,” Archaeology Odyssey, 57. Ibid. May/June 1999, p. 23.