american bar association section of international winter 2012, vol. Iv, issue no. 1 Art & Cultural Heritage Law Newsletter A Publication of the Art & Cultural Heritage Law Committee

The Treasure Act and Portable Antiquities Scheme in England and Wales Roger Bland, Head of Portable Antiquities and Treasure, British Museum

his article describes the solution Background: adopted in England and Wales to Until 1996 England and Wales very the universal problem of how to unusually had no legislation governing Tdeal with objects of archaeological, portable antiquities. The old feudal right historical or cultural importance found by to Treasure Trove (under which the king CONTENTS members of the public. All countries have claimed all finds of gold or silver that had legal frameworks and other systems in- been deliberately buried in the ground) The Treasure Act and Portable tended to protect such objects found by had been adapted as an antiquities law in Antiquities Scheme in England members of the public in their territory ei- 1886 when the Government started paying and Wales ther by chance or as a result of deliberate finders rewards for finds of Treasure Trove PAGE 1 searching. While these approaches vary that museums wished to acquire, but widely, in most countries there is a legal re- this was just an administrative act and , Statutory Law and quirement to report all objects of archaeo- no law setting out a sensible definition of the Disposition of Archaeological logical importance and normally the state Treasure Trove was ever passed. Instead Resources in the United States claims of them. Further, there the definition was based on case law going are mechanisms for paying rewards to the back to the 17th century and beyond, and PAGE 7 finders (although these usually fall short of only finds made of gold and silver that the full market value) and there is usually had been deliberately buried qualified as Legislation & Persuasion – Treasure protection for archaeological sites and Treasure Trove. In practice, most Treasure Trove in Scotland controls over the use of metal detectors. Trove cases were coin hoards, but not all PAGE 16 England and Wales have adopted a differ- hoards were covered because small groups ent approach to this problem in the that could have been lost did not qualify. Treasure Act and Portable Antiquities Likewise, hoards of bronze or base metal Scheme. Unfortunately, these initiatives coins also did not qualify. have become something of a ‘football’ in Archaeologists pressed for reform the debate in the United States concerning throughout the 20th century but, fatally, cultural . Contrary to the por- could never agree on what form that reform trayal of some archaeologists, these initia- should take. The availability of cheap tives are not a complete surrender to un- metal detectors in the 1970s suddenly controlled treasure hunting. At the same lent a new urgency to the need to reform time, however, the initiatives do not pro- the law, as the number of objects being vide an all-inclusive solution to the prob- found suddenly rocketed, but, with a few lems of cultural heritage protection that exceptions, museums and archaeologists would merit adoption of the initiatives failed to respond adequately. A part of the worldwide, as some proponents of the col- lecting lobby suggest. Continued on page 3

AMERICAN BAR ASSOCIATION SECTION OF INTERNATIONAL LAW 1 american bar association section of international law winter 2012, vol. Iv, issue no. 1

The Art & Cultural Heritage Law Committee is a committee of the American Bar Association Section of International Law.

CO-CHAIRS David J. Bright Patty Gerstenblith VICE CHAIRS Kimberly Alderman Jacqueline d. Farinella Peter Karl Tompa NEWSLETTER EDITORS David J. Bright Sharon M. Erwin Jacqueline d. Farinella NEWSLETTER CONTRIBUTORS Roger Bland, Head of Portable Antiquities On behalf of the Art & Cultural Heritage Law Committee, and Treasure, British Museum Stuart Campbell, Treasure Trove Unit, welcome to the Committee’s Winter 2012 Newsletter. In this issue, we are pleased National Museums Scotland to present three perspectives from the panel discussion “The Future of Patty Gerstenblith, Distinguished Research the Past in England, Wales, Scotland, Ireland and the United States”, as given at Professor, DePaul University College of Law; the American Bar Association Section on International Law’s Fall 2011 Meeting Co-Chair, Art and Cultural Heritage Law held this October in Dublin, Ireland. This panel discussion, chaired by the Committee, Section on International Law, Committee’s own Patty Gerstenblith and Peter K. Tompa, provided a view of the American Bar Association legal framework in each of England, Wales, Scotland, Ireland and the United States DESIGNER governing the treatment of archaeological resources found within those www.jameefarinella.com jurisdictions. The distinguished panelists whose work is presented in this issue – ARTISTS Patty Gerstenblith discussing the United States, Stuart Campbell discussing All images by Sandra Louise Dyas Scotland and Roger Bland discussing England and Wales – provide an overview www.sandydyas.com of the governing archeological finds in these countries. These three articles trace the historical development of the relevant legal framework, and, through this To get involved with the Committee, please email: [email protected], comparison, highlight the advantages and shortcomings of each countries’ [email protected] unique approach. or [email protected] We hope you enjoy this exciting discussion.

Subscription & Submissions email: Jacqueline Farinella: [email protected] or David Bright: [email protected] Submissions are welcome and will be published at the discretion of the editors. Artists are also encouraged to submit their work, which will be duly credited. Views contained in the newsletter are those of the authors only and do not represent the All graphics, images, photographs, and text appearing in this newsletter may be protected official position of theC ommittee or by copyright. Commercial use of copyrighted material is prohibited without express written the American Bar Association. permission of the copyright owner.

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archaeological establishment responded Under the Treasure Act, the following by trying to introduce controls on metal finds are “Treasure”, provided they were …the UK Parliament detecting – the STOP (‘Stop Taking our found after 24 September 1997: finally passed the Treasure Past’) campaign – but this failed to gain (1) objects, other than coins, at least political support and simply led to a 300 years old with a minimum precious Act in 1996 and this climate of distrust between archaeologists metal content of 10%; and detector users. In 1979 legislation (2) all groups of coins from the same provided a significant, was introduced banning metal detecting find at least 300 years old (if the coins have but incremental change. on Scheduled Monuments (of which a precious metal content of less than 10% there are some 24,000) but, this apart, it then the hoard must consist of at least 10 is completely legal to use a metal detector coins); and with the permission of the owner of the (3) objects found in association with land in England and Wales. This is in Treasure. contrast to most European countries Objects belonging to their original where a licence is needed to search for owner or his heirs are excluded, as are archaeological objects. In a few parts of unworked natural objects (such as fossils) England far-seeing archaeologists, notably and wreck. in the East Anglian counties of Norfolk The Act also contains a provision that and Suffolk, pioneered a system of liaison allows for regular reviews. After such with detector users. reviews, the definition may be extended. The first review in 2003 led to adding Treasure Act hoards of prehistoric base-metal objects to Thanks to the efforts of Lord Perth the categories of Treasure. A second review and others, the UK Parliament finally should have taken place in 2008, but is passed the Treasure Act in 1996 and this now overdue. provided a significant, but incremental change. The Act came into effect in Rewards and valuations 1997 and applies only to objects found Any object that a museum wishes to since September 1997. It has effect in acquire is valued by a committee of England, Wales and Northern Ireland independent experts, the Treasure but not Scotland which has a completely Valuation Committee, and their remit is separate legal framework governing to determine the full market value of the finds: in Scotland there is, in effect, a legal requirement to report all finds. Continued on page 4

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Trove before 1997 were coin hoards, one might have thought that the Act would only have a limited impact on the number of hoards being reported, but in fact the average number of coin hoards since 1997 is 67 a year (half of these are Roman hoards), more than twice the 26 a year logged in the ten years before the change in the law. Since that figure included hoards of bronze coins and small groups of coins that were not Treasure Trove, this increase strongly suggests a greater willingness by metal detector users to report their finds. Portable Antiquities Scheme Of course, Treasure finds are only part of the picture: the great majority of archaeological objects found do not qualify as Treasure, but the information they provide can be just as important for our understanding of the past. The Portable Antiquities Scheme Fig. 1. Finds reported as Treasure Trove (1988-97) and Treasure (since 1997) (PAS) was established in parallel with the Treasure Act to encourage amateur finders to report – voluntarily – all the coins and other archaeological objects that they find. This works through a network of locally- object in question; the current chairman is based 40 Finds Liaison Officers, who Professor Lord Renfrew of Kaimsthorn, an between them cover the whole of England eminent archaeologist and member of the and Wales. They have to cope with all House of Lords. The reward is normally types of archaeological finds and so are divided equally between the finder and supported by five specialists, National landowner. The Committee is advised by Finds Advisers. All the finds are recorded a panel of valuers drawn from the trade, onto an online database (http://finds.org. and interested parties can commission uk) which is now the largest resource of their own valuations which the committee its kind in the world, with details of some will consider. The reward can be reduced 750,000 objects reported by over 14,000 or not paid at all if there is of metal detector users and others. These wrongdoing on the part of the finder or finds are returned to their finders after the landowner. Once a valuation has been recording. agreed, museums have up to four months The author recently completed a to raise money. Archaeologists are not corpus of all finds of Roman gold coins eligible for rewards. Not all finds reported in Britain in collaboration with Xavier as Treasure are acquired by museums and Loriot, who had already done the same indeed about 60% of all cases are now for Gaul (Roman and Early Byzantine Gold disclaimed and returned to the finder who Coins found in Britain and Ireland, Royal is free to dispose of them as he wishes. Numismatic Society, 2010). This project showed that new finds from Britain since Impact of the Treasure Act the start of metal detecting in the 1970s The impact of the Act has been dramatic: increased nearly threefold (from 2.4 new before 1997, an average of 26 finds a year finds a year to 6 a year), while the numbers were deemed Treasure Trove and offered of new finds from France and Germany to museums to acquire; in 2010, 859 cases in the same period remained flat (fig. 2). were reported as Treasure, 95% of these The corpus includes finds recorded from found by amateur metal detector users. sources such as sales catalogues, online Since most of the finds that were Treasure Continued on page 5 Art & Cultural Heritage Law Committee 4 american bar association section of international law winter 2012, vol. Iv, issue no. 1

increased the number of Roman sites from two counties (Warwickshire and Worcestershire) by 30%. Most archaeology in this country takes place in advance of building development and as sites brought to light by detector finds are mostly rural, most of them are unlikely to have been discovered through the normal archaeological process. Ninety percent of all finds recorded by PAS come from cultivated land where the archaeological contexts have already been disturbed by the plow: when metal detecting is carried out properly on such land, with all finds being carefully recorded, it can be seen as a form of archaeological rescue. Perhaps the biggest problem for PAS is Fig. 2: Percentage of total number of single finds of gold coins recorded from the UK its own success; we perpetually struggle to (blue line), compared with the Continent (red line), since 1500. record all the finds that we can. Although a record 90,029 finds were added to the database in 2010 (the highest total recorded so far, see figure 3), we will never have enough staff to record all the finds we would like to, and so in March 2010 a new facility was added to the database to allow amateurs to record their own finds, under supervision. So far, 85 individuals have recorded 5,131 finds. Persuading the individuals who make finds to take responsibility for ensuring that they are recorded must underlie our future direction, as the flow of new discoveries shows no signs of diminishing. PAS has been criticized for not stopping illegal metal detecting in England and Wales, but it was not intended to do so. Illegal metal detecting is an enduring problem and PAS is addressing it by Fig. 3: Numbers of finds recorded on http://finds.org.uk working closely with English Heritage’s Heritage Crime Initiative, which is run by a police inspector on secondment. This approach has been having considerable sources and metal detecting magazines, success in targeting illegal detector and showed that PAS is recording 70% of users, known as ‘nighthawks’. However, all current finds. it is important to put nighthawking in It is a priority to record find spots as perspective: a survey commissioned by accurately as possible, so that 90% of all English Heritage in 2008 found that on finds are recorded to an area of 100 square two measures (the numbers of scheduled meters. When finds are recorded in this sites attacked by illegal detector users and way, and the data is integrated with other the number of archaeological units that archaeological finds together with the local reported nighthawking incidences on archaeological records, the information their excavations), the number of cases has huge potential for revealing new had declined since 1995 when a previous sites. A doctoral thesis showed that in survey was carried out. 10 years the data recorded by PAS had Continued on page 6 Art & Cultural Heritage Law Committee 5 american bar association section of international law winter 2012, vol. Iv, issue no. 1

Another way of tackling the problem these amendments (there is a cost, albeit and this amendment would normalise that is to make it harder for the thieves to a low one, to establishing the post of practice. sell their finds. At present, it is too easy Coroner for Treasure) and we are waiting for the ‘nighthawks’ to sell their finds to hear what will happen. 6. Obligation to hand over treasure. to dealers who are happy to purchase Currently finders only have a legal such objects without checking that 1. Establish the post of Coroner for Treasure. obligation to report Treasure, not hand the vendors are acting legally, with the The Coroner for Treasure would deal with it over. This amendment will ensure agreement of the landowners. Many items all Treasure cases from across England that the obligations of finders (who are of potential Treasure are openly offered and Wales (at present many coroners give intransigent) are clear. for sale, especially on the eBay website. Treasure cases low priority and delays of a All of the amendments would help the To address this problem, in October year or more in their holding an inquest on Act work better, and the second and third 2006, the PAS signed a memorandum a find are not uncommon). amendments listed above would make it of understanding with eBay, whereby much harder for dealers to sell unreported eBay will take such items down from its 2. Extend the obligation to report Treasure. Treasure finds. In addition a second review website when notified by PAS and the Currently there is only an obligation of the Act should have taken place in 2007, police. PAS has been monitoring eBay as for “finders” of Treasure to report such but is still pending. On its agenda will be time allows since then. eBay published finds. This amendment would require the possibility of extending the Act and comprehensive guidance on buying and that anyone who “acquires property in an single finds of Roman and Anglo-Saxon selling antiquities on its website for the object [that he] believes or has reasonable gold coins, as well as Roman base-metal first time (http://pages.ebay.co.uk/buy/ grounds for believing ... is treasure” report hoards have been discussed as possible guides/antiquities/), while PAS also it. This would help frustrate the illicit trade candidates for adding to the definition of developed its own guidance (www. in Treasure finds. Treasure. It remains to be seen whether the finds.org.uk/treasure/advice.php). PAS Act will be extended in this way. has followed up several hundred cases 3. Establish a “reverse presumption”. The of potential Treasure offered for sale on amendment would establish a presumption Conclusion eBay. Although there have not yet been that an object was found on or after 24 Although the Act could be improved and any criminal prosecutions as a result of September 1997, unless there is evidence the Portable Antiquities Scheme could this monitoring of eBay, there have been a otherwise. Currently some finders state benefit from more funding, they have had number of instances where vendors have that an object was found before the Act, a major impact. The finds recorded by voluntarily agreed to report the finds and therefore it is declared not Treasure the Scheme are available at http://finds. they were selling as Treasure. However, Trove (an ownership is governed by the org.uk for all to see. This is a major tool monitoring eBay on a daily basis, which old common law). This amendment would for research, and over 11 major research- is what is needed, is a time-consuming tighten up this loop-hole in the legislation. council funded projects, 47 PhDs, and 109 process. More resources are needed in Coroners declare objects Treasure (or not) Master’s or Bachelor’s dissertations are order to pursue this work; these should on the balance of probability. using the data. The Treasure Act and PAS come from eBay, which profits from the may be a particularly English response to sale of antiquities on its website. 4. Extend the time limit for prosecutions the situation that exists in this country, It might have thought that the for non-reporting. This amendment would but they are undoubtedly transforming Government’s accession to the 1970 increase the statute of limitation (currently our understanding of the past of England UNESCO Convention in 2002 and the 6 months) to up to 3 years to allow police and Wales. u Dealing in Cultural Objects (Offences) Act, more time to pursue a prosecution of which came into force on 30 December failure to report Treasure. Prosecution 2003, should help to suppress the market cases have failed because time has run out in finds illegally recovered from the UK - even before a Coroner has declared a find but no prosecutions have been brought Treasure. under this Act, nor have any been brought under the Treasure Act. 5. Allow the Secretary of State to designate officers to whom Treasure can be reported: Proposed Amendments to the The Act states that Treasure should be Treasure Act reported to the Coroner in the district 1 In 1995, 188 Scheduled Monuments were reported as In 2009, Parliament passed a number of in which it was found, but it is normal having been had been nighthawked over the previous significant amendments to the Treasure practice (since it is convenient for finders) five years; in 2008 the figure was 78; in 1995, 37 out Act in the Coroners and Justice Act, listed for finders to report (and handover) of 50 (74%) archaeological units reported incidences below. At present, the current Government Treasure to their local Finds Liaison of nighthawking over the previous five years; in 2008 has not yet decided whether to implement Officer (at their local metal-detecting club), the figure was 15 out of 54 (27%).

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archaeological resources in the United Common Law, Statutory Law and the States is the division of legal authority and responsibility between the federal Disposition of Archaeological Resources and state governments. The federal government provides a unitary regulatory in the United States scheme for public lands only, including Patty Gerstenblith, Distinguished Research Professor, DePaul University Native American tribal lands and lands owned by the federal government, and for College of Law; Co-Chair, Art and Cultural Heritage Law Committee, Section the interstate and international commerce on International Law, American Bar Association in archaeological resources.4 State governments have responsibility for state- he looting of archaeological sites Over the past century, the United States has owned and controlled lands. All together, is a world-wide problem, one to developed an extensive legal regime at both the public lands amount to approximately which the United States is not the federal and state levels to provide means 40 percent of the landmass of the United Timmune. Only through the scientific of preserving these sites. States and are therefore subject to excavation and retrieval of remains in their Even though the United States devotes government regulation. State and local stratigraphic context can the full story of the some of the most extensive and sophisticated governments indirectly control activity on human past be reconstructed. Yet, from the law enforcement resources to this problem, private land, in part, through zoning and beginning of the nineteenth century, Native many of the archaeological sites in this other land-use regulations, but this often American sites as well as historic sites of country have been disturbed. In some leaves archaeological resources located on the Colonial period, Civil War and more regions, this estimate is as high as nine out 4 The federal government is a government of recent past, have fallen victim to looting for of ten sites.2 Yet, it is also estimated that limited authority; it has only the powers given to it the purpose of obtaining saleable objects.1 there is only one public agency official per in the U.S. Constitution, as well as additional powers one million acres with responsibility for implied in the specifically enumerated powers. The 1 See, e.g., Hester Davis, Facing the Crisis: Looting in 3 Tenth Amendment to the U.S. Constitution states, the U.S., Archaeology (July 1, 1998), available at: www. protecting cultural resources on public land. “[t]he powers not delegated to the United States by archaeology.org/online/features/loot/index.html. Another difficulty in the protection of the Constitution, nor prohibited by it to the States, Development, construction projects, and agricultural 2 Veletta Canouts and Francis P. McManamon, are reserved to the States respectively, or to the activities also pose threats to the preservation of Protecting the Past for the Future: Federal people.” Federal regulation in the realm of domestic sites. These activities are dealt with under a different Archaeological Heritage, in Trade in Illicit Antiquities: archaeological and historic preservation is generally regulatory scheme, most notably the National the destruction of the world’s archeological heritage viewed as based on federal government ownership Historic Preservation Act, 16 U.S.C. §§ 470-470w, and 97, 97 (Neil Brodie, Jennifer Doole & Colin Renfew, of lands, its special relationship with the Indian fall outside the scope of this paper which focuses on eds. McDonald Institute Monographs 2001). tribes, and its authority to regulate interstate and the disposition of finds from archaeological sites. 3 Id. at 99. international commerce. Continued on page 8 Art & Cultural Heritage Law Committee 7 american bar association section of international law winter 2012, vol. Iv, issue no. 1

private land relatively unregulated. land, the first such source is the common To the extent that state and local law of finds.7 The common law remains governments attempt to regulate the backdrop, although it has been archaeological resources on private substantially altered through statutory land, their ability to do so is limited by regulation enacted at both the federal and the Constitution’s Fifth and Fourteenth state levels. The different underlying Amendments.5 Although the Takings The law of finds focuses primarily on sources of law … add Clause would therefore seem to limit previously owned property, and its rules state government attempts to protect regulating the disposition of personal yet another complicating archaeological and cultural resources property are motivated in large part by located on private land, protective the goal of reuniting the original owner factor in the legal regulations enacted in recent years have so with the object. Depending on the exact protective regime. far withstood constitutional challenge.6 circumstances of the loss of the property, The different underlying sources of law this policy may be furthered by awarding that apply to terrestrial and to underwater of the object to the finder archaeological resources add yet another and in other circumstances by awarding complicating factor in the legal protective possession to the owner of the real regime. The underlying law applicable to property where the object was found. The land is based on the common law of finds. finder keeps the object only when this will However, the underlying law applicable facilitate providing notice of the find to to underwater resources is the maritime the original owner or otherwise enabling law of admiralty, which encompasses the original owner to locate the property. both the law of finds and salvage law. Other policy goals include returning the This has produced different sets of legal object to public circulation, rewarding considerations and distinct regulatory advances in technology that enable the schemes for the protection of these different finder to retrieve objects, and providing resources, although the rationales for such amusement to the public. protection are the same in both contexts. The law of finds divides found into five classifications: lost, I. Common Law of Finds mislaid, abandoned, and embedded The legal regime for the protection of property, and treasure trove. Each archaeological resources in the United classification has its own distinct elements States is a complex web of laws derived and its own mode of treatment. Lost from many different sources. In terms property is property that the owner of archaeological resources located on has lost involuntarily through neglect, carelessness, or inadvertence and of whose 5 The Fifth Amendment to the U.S. Constitution whereabouts the owner is unaware. The prohibits the taking of private property “for public use, without just compensation.” The Fifth finder of lost property acquires a complete Amendment was incorporated to apply to the states right against all but the true owner. through the Fourteenth Amendment. The Supreme Because the owner does not know where Court has extended the compensation requirement to look for the lost property, awarding to certain types of land-use regulations, even when possession to the finder furthers the policy the private owner has not been denied ownership. See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. of putting the object back into circulation. 393 (1922); Lucas v. South Carolina Coastal Council, Furthermore, the possibility of gaining 505 U.S. 1003 (1992). a recognized right to the property also 6 Land use regulation for the purpose of historic encourages the finder to publicize the find, preservation was found not to constitute a taking of private property under the federal Constitution 7 For more detailed discussion of the common in Penn Central Transp. Co. v. New York City, 438 U.S. law of finds, see Leanna Izuel, Property Owners’ 104 (1978). A local historic preservation ordinance Constructive Possession of Treasure Trove: withstood a challenge under the state constitution Rethinking the Finders Keepers Rule, 38 UCLA L. Rev. in United Artists’ Theater Circuit, Inc. v. City of 1659, (1991); Patty Gerstenblith, Identity and Cultural Philadelphia, 635 A.2d 612 (Pa. 1993). Regulation for Property: The Protection of Cultural Property in the purpose of historic preservation has met more the United States, 75 B.U. L. Rev. 559, 587-95 (1995); serious challenge when the structure at issue has a Richard B. Cunningham, The Twilight of Treasure religious function; see Mount St. Scholastica, Inc. v. Trove, in Legal Perspectives on Cultural Resources 37 City of Atchison, 482 F. Supp. 2d 1281 (D. Kan. 2007). (Jennifer R. Richman & Marion P. Forsyth eds. 2004) Continued on page 9 Art & Cultural Heritage Law Committee 8 american bar association section of international law winter 2012, vol. Iv, issue no. 1

the only mechanism by which the original The third category, mislaid property, is owner may be reunited with the property. property that the owner has intentionally However, a finder who does not attempt hidden but for some reason has been to find the true owner or who commits prevented from returning to reclaim. In trespass in finding the property may lose the case of mislaid property, the policy any right to it. goal of reunifying property and owner Abandoned property is property to is furthered by awarding possession to which the original owner has relinquished the owner of the where the all right, , claim, and possession with object was found. This is done on the the intention of terminating ownership assumption that the original owner will but without vesting ownership in any eventually remember where the object was other person and without any intention of placed and will return to reclaim it. reclaiming it in the future. Courts consider The category with the greatest such property to have returned to a “state relevance to archaeological objects is of nature” and thus, as , that of embedded property.8 Embedded it is subject to appropriation by the first property is any property, not made of person who reduces it to possession. The gold, silver, or their paper equivalents, finder of abandoned property acquires found buried or embedded in the ground. absolute title to it, with no duties to the 8 See, e.g., Allred v. Biegel, 240 Mo. App. 818 (1949) original owner. However, the finder bears (holding that a Native American canoe was classified the burden of proving the original owner’s as embedded, not lost, property and therefore intent to abandon the property. belongs to the landowner, not the finder). Continued on page 10 Art & Cultural Heritage Law Committee 9 american bar association section of international law winter 2012, vol. Iv, issue no. 1

Embedded property is given to the real trove to the finder, even if the finder had II. Federal Legislation property owner in recognition of the real committed trespass in the process of A. Antiquities Act of 1906 property owner’s constructive possession obtaining it, with considerable variation Beginning in the 1870s, interest in North of everything contained on and below the among the individual states.11 To the American archaeology and anthropology surface of the land.9 extent that the United States’ version of the began to flourish. This interest was in The fifth and most problematic category treasure trove rule encourages trespass, part stimulated by the inclusion of Native of personal property is treasure trove. The it should be questioned as providing American artifacts in the Smithsonian concept of treasure trove had its origins in an incentive to law-breaking and has Institution exhibition in Philadelphia medieval and initially applied come under considerable criticism. One as part of the Centennial Exposition to treasure left buried by the Romans commentator has noted that any “benefits in 1876. In 1879, the Anthropological when they were expelled from Britain. are outweighed ... by the costs the finders Society of Washington (a forerunner of the At common law, treasure trove included keepers rule imposes on society by forcing American Anthropological Association) only gold and silver objects intentionally the landowner to guard his land and by and the Archaeological Institute of hidden in the ground or in a structure by giving the finder the incentive to outwit America were founded, and the Bureau of the original owner who was prevented the landowner.”12 One court stated, in American Ethnology was established at the from returning to reclaim it.10 Under rejecting the “finders keepers” and treasure Smithsonian Institution. Surveys of sites British law, treasure trove belongs to the trove rules, “the rule of treasure trove is in the Southwest not only revealed the Crown. The traditional rules of treasure of dubious heritage and misunderstood destruction and looting of sites but also trove were abandoned in the United States application, inconsistent with our values stirred interest, along with the development after the Revolution and decisions of the and traditions.”13 of ethnographic and anthropological study early twentieth century awarded treasure 11 Cunningham, supra note 7, at 47-48. of Native Americans, in the market for 12 Izuel, supra note 7, at 1690. the products of that looting. Pothunters 9 Cunningham, supra note 7, at 49-51. 13 Corliss v. Wenner, 34 P.3d 1100, 1105 (Id. App. 2001). vandalized large numbers of ancient 10 The Treasure Act of 1996 and subsequent The court further explained that there is no reason amendments have modified the definition of to treat property composed of precious metals any dwelling sites and cemeteries for personal “treasure”. This subject, however, falls outside the differently than other type of embedded property; property superior to anyone other than the original scope of this paper. therefore, the landowner should have rights to the owner. Id. at 1106. Continued on page 11 Art & Cultural Heritage Law Committee 10 american bar association section of international law winter 2012, vol. Iv, issue no. 1

gain. Some, such as the Wetherill brothers, know what the Act prohibited.18 This profited by outfitting major museums, provided the stimulus for enactment of such as the American Museum of Natural new federal legislation, the Archaeological History in New York. Others took their Resources Protection Act of 1979 (ARPA).19 collections back to Europe, thereby ARPA cured the defect of the Antiquities arousing the American public over loss of Act by providing a clear definition of Both the Antiquities its cultural heritage.14 “archaeological resource” as: Act and then ARPA… By the early twentieth century, growing any material remains of past human life public and academic interest in Native or activities which are of archaeological function as national American sites in the Southwest led to interest, ... includ[ing], but not ... limited two major developments: enactment of to: pottery, basketry, bottles, weapons, ownership laws… the Antiquities Act of 1906,15 and the weapon projectiles, tools, structures or designation of Mesa Verde as the first portions of structures, pit houses, rock Native American site protected as a paintings, rock carvings, intaglios, graves, national park. The Antiquities Act provides human skeletal materials, or any portion that the President may set aside as national or piece of any of the foregoing items.... No monuments “historic landmarks, historic item shall be treated as an archaeological and prehistoric structures, and other resource under regulations under this objects of historic or scientific interest” paragraph unless such item is at least 100 located on lands owned or controlled years of age.20 by the federal government (including Both the Antiquities Act and then Indian tribal land, forest reserves, and ARPA, within the constitutional limits military reservations)16 and penalizes of Congressional authority, function as the destruction, damage, excavation, national ownership laws, vesting ownership appropriation, or injury of any historic or of archaeological resources found on prehistoric ruin, monument or object of federal and Indian lands, with exceptions antiquity without a permit.17 now provided in the Native American Graves Protection and Repatriation Act, B. Archaeological Resources in the national government and requiring Protection Act of 1979 that anyone who wishes to excavate or The effectiveness of the Antiquities Act remove archaeological resources first suffered from years of lax enforcement obtain permission from the federal and relatively minor penalties. In 1974, government.21 ARPA prohibits and the Act was declared unconstitutional by 18 United States v. Diaz, 499 F.2d 113, 115 (9th Cir. the Court of Appeals for the Ninth Circuit, 1974). Nonetheless, the criminal provisions of the which found that the legislation failed to Antiquities Act continue to be utilized in other define adequately terms such as “ruin,” circuits; see David Tarler, Enforcement Actions, in Yearbook of Cultural 2008 135, 146-47 “monument,” and “object of antiquity.” (Sherry Hutt & David Tarler eds 2008) (describing The Act thus violated due process by conviction under the Antiquities Act in the Tenth failing to give the person of ordinary Circuit for theft of a revolver used by Theodore intelligence a reasonable opportunity to Roosevelt during the in the charge up San Juan Hill and now owned by the National Park Service). 19 16 U.S.C. §§ 470aa-470hh. See Don D. Fowler & 14 For background to enactment of the Antiquities Barbara Malinky, The Origins of ARPA: Crafting the Act, see Francis P. McManamon, Ownership and Archaeological Resources Protection of 1979, in Protection of Heritage: Cultural Property Rights for Presenting Archaeology in Court 1, 8-17 (Sherry Hutt, the 21st Century: Cultural Resources and Protection Marion P. Forsyth & David Tarler eds. 2006). under United States Law, 16 Conn. J. Int’l L. 247, 20 16 U.S.C. §470bb. See United States v. Austin, 902 254-58 (2001); Robert H. McLaughlin, The American F.2d 743 (9th Cir. 1989) (holding ARPA constitutional Archaeological Record: Authority to Dig, Power to despite challenge on the basis of both overbreadth Interpret, 7 Int’l J. Cultural Prop. 342, 346–53 (1998). and vagueness). 15 Ch. 3060, 34 Stat. 225, codified at 16 U.S.C. §§431– 21 16 U.S.C. §470cc; §470ee(a). ARPA exempts the 433. The history of the Antiquities Act is presented in removal of arrowheads located on the ground Ronald F. Lee, U.S. Dep’t of the Interior, The Antiquities surface from its criminal penalties, id. at §470ee(g), Act of 1906 (1970), available at: http://www.nps.gov/ and its civil penalties, id. at §470ff(3). However, such archeology/pubs/lee/lee_fpm.htm. arrowheads and other artifacts that are less than one 16 16 U.S.C. §431. hundred years old (and therefore do not fit the ARPA 17 Id. at §433. definition of “archaeological resource”) still belong to Continued on page 12 Art & Cultural Heritage Law Committee 11 american bar association section of international law winter 2012, vol. Iv, issue no. 1

criminalizes trafficking in archaeological Native Hawaiian organizations.27 It thus resources obtained in violation of ARPA, derogates from both the common law and as well as interstate commerce in any ARPA by vesting ownership of cultural archaeological resources taken or held in items in lineal descendants or, if lineal violation of federal, state or local law.22 descendants cannot be ascertained, then Finally, ARPA provides for civil penalties,23 in the descendant community—that is, a The rationale for criminal penalties,24 and forfeiture.25 Native American tribe or Native Hawaiian enactment of the ASA organization, depending on a variety C. Native American Graves of factors—rather than in the federal was that the states Protection and Repatriation Act government.28 The most recent and interesting statute in NAGPRA also requires museums and were better suited to deal the arsenal of federal laws that concern universities that receive federal funding and with historic preservation cultural heritage is the Native American federal agencies to publish inventories and Graves Protection and Repatriation Act summaries of Native American and Native concerns on the (NAGPRA), enacted in 1990.26 NAGPRA Hawaiian human remains, associated and vests ownership of human remains and unassociated funerary artifacts, objects of local level. cultural items discovered after 1990 on cultural patrimony and sacred objects that federally owned or controlled lands or on are in their collections and make these tribal lands in Native American tribes and available to tribes and Native Hawaiian organizations for repatriation.29 NAGPRA’s the United States government or Native American tribe trafficking provisions criminalize the as landowner. United States v. Shivers, 96 F.3d 120 (5th knowing trafficking in Native American Cir. 1996). Someone who removes such objects without permission can be charged with theft of government human remains and the knowing property, 18 U.S.C. §641. trafficking in Native American cultural 22 16 U.S.C. §470ee(b) and (c). See United States v. items obtained in violation of NAGPRA.30 Gerber, 999 F.2d 1112 (7th Cir. 1993)(holding that ARPA’s criminal provisions apply to the interstate trafficking D. Underwater Cultural Resources of archaeological artifacts removed from private land without the landowner’s permission and in violation of Underwater cultural resources are state law). subject to the law of admiralty, which is 23 16 U.S.C.§470ff. See Robert Lester, The Civil Side comprised of both the law of salvage and of Archaeological Resource Protection, in Presenting the law of finds. By both the Constitution31 Archaeology in Court 153, 153-59 (Sherry Hutt, Marion P. Forsyth & David Tarler eds. 2006). 24 16 U.S.C. §470ee(d). United States v. Quarrell, 310 27 Id. at §3002. NAGPRA defines cultural items as F.3d 664 (10th Cir. 2002); United States v. Shumway, including human remains and four categories of 112 F.3d 1413 (10th Cir. 1997). See Robert Palmer, objects: associated funerary objects; unassociated Federal Prosecutions under the Archaeological funerary objects; sacred objects, and cultural Resources Protection Act of 1979: A Ten-Year Review patrimony. Sacred objects are defined as “specific (1996-2005) in Yearbook of Cultural Property Law ceremonial objects which are needed by traditional 2007 221 (Sherry Hutt & David Tarler eds 2007) Native American religious leaders for the practice of (collecting data on 83 defendants found guilty and traditional Native American religions by their present other actions under ARPA); Tarler, supra note 18, at day adherents.” Objects of cultural patrimony 137-45 (collecting actions under ARPA during the year are those objects that “hav[e] ongoing historical, 2007); David Tarler, Enforcement Actions, in Yearbook traditional, or cultural importance central to the of Cultural Property Law 2009 179, 180-85 (Sherry Native American group or culture itself”. 25 U.S.C. Hutt & David Tarler eds 2009) (same for 2008). The §3001(3)(A)-(D). Cultural Heritage Resource Crimes Sentencing 28 Id. at §3002. This provision, which was originally Guideline, 18 U.S.C. Appx. §2B1.5, adopted in 2002, thought to be relatively uncontroversial, was the increases penalties for criminal activities involving subject of extended litigation concerning disposition cultural heritage resources and implicates several of the “Kennewick skeleton”, Bonnichsen v. United federal statutes, including both ARPA and NAGPRA. States, 357 Fd.3d 962 (9th Cir. 2004). 25 16 U.S.C. §470gg(b) (allowing criminal and civil 29 Id. at §§3003-05. forfeiture of archaeological resources involved in 30 18 U.S.C. §1170(a) and (b). NAGPRA withstood a violation, as well as of all vehicles and equipment constitutional challenge on grounds of vagueness used in connection with a violation of ARPA). See in United States v. Corrow, 119 F.3d 796 (10th Cir. Stefan D. Cassella, Using the Forfeiture Laws to 1997) (prosecution for trafficking in objects of Protect Archaeological Resources, in Presenting Native American cultural patrimony); United States Archaeology in Court 169, 174-84 (Sherry Hutt, Marion v. Tidwell, 191 F.3d 976 (9th Cir. 1999)(same). See also P. Forsyth & David Tarler eds. 2006). Tarler, supra note 18, at 149-51. 26 25 U.S.C. §§3001-13. 31 Article III, §2, clause 1. Continued on page 13 Art & Cultural Heritage Law Committee 12 american bar association section of international law winter 2012, vol. Iv, issue no. 1

and statute,32 federal courts have original traditionally favor a finding that the owner which allow shipwrecks at greater depths jurisdiction over maritime and admiralty has not abandoned the wreck and have to be explored and their cargo removed, cases, whereby they determine the therefore set a relatively high bar for a and in reaction to judicial decisions disposition of shipwrecks and associated determination that the owner intended to during the 1980s relying on the law of objects. According to admiralty law, the abandon the wreck.34 finds, Congress enacted the Abandoned law of finds applies if the court determines As a result of technological advances, Shipwreck Act of 1987 (ASA).35 The effect that the owner of the ship has abandoned Economic Study of Law and Altruism, 7 Legal Stud. 83 of the Act is to abrogate the law of finds as it, in which case, as with abandoned (1978). Several factors are taken into consideration applied to shipwrecks that are abandoned property on land, title to and possession in determining the size of the salvage award. In and embedded in submerged lands or of the ship and its contents will be given to Columbus-America Discovery Group v. Atlantic coralline formations of a state or located on the finder. If the owner has not abandoned Mutual Insurance Co., 974 F.2d 450 (4th Cir.), the court the submerged lands of a state and listed or added an additional factor as to whether the salvors the ship, then the law of salvage applies worked to protect the historical and archaeological eligible for listing on the National Register and title remains with the owner, although value of the wreck. of Historic Places; title to such shipwrecks the salvor is entitled to a reward, which is 34 There is a disagreement among court decisions is vested in the United States, which then often given from the ship’s cargo.33 Courts as to whether abandonment must be explicit or can transfers title to the individual state.36 be inferred from surrounding circumstances. See, 32 28 U.S.C. §1333(1). e.g., Sea Hunt, Inc. v. The Unidentified Shipwrecked 35 43 U.S.C. §§2101–2106. 33 The law of salvage focuses on the policy of Vessel or Vessels, 221 F.3d 634 (4th Cir. 2000)(holding 36 The Act defines “abandoned” shipwrecks as those encouraging salvors to aid in the rescue of both that a foreign sovereign cannot be held to an implied that “have been deserted and to which the owner people and goods in peril by promising an award to abandonment standard); NorthEast Research, LLC has relinquished ownership rights with no retention.” the salvor without the necessity of entering into a v. One Shipwrecked Vessel, 2011 U.S. Dist. LEXIS 43 U.S.C. §2101(b). “Embedded” is defined as “firmly with the ship’s owner. Courts have therefore 31251 (W.D.N.Y.2011)(holding that while there is a affixed in the submerged lands or in coralline traditionally displayed a preference for the law of presumption against abandonment, abandonment formations such that the use of tools of excavation salvage because it is viewed as encouraging such can be inferred from surrounding circumstances; the is required in order to move the bottom sediments to rescue. See William M. Landes & Richard A. Posner, party claiming abandonment must prove it by clear gain access to the shipwreck, its cargo, and any part Finders, Good Samaritans, and Other Rescuers: An and convincing evidence). thereof.” 43 U.S.C. §2102(a). Continued on page 14 Art & Cultural Heritage Law Committee 13 american bar association section of international law winter 2012, vol. Iv, issue no. 1

The rationale for enactment of the ASA -controlled lands in the state government.41 was that the states were better suited to The state typically reserves to itself (or deal with historic preservation concerns to a government agency or commission) on the local level. Most states had enacted the exclusive ability to regulate, explore, statutes that vested in the state title to excavate and survey any historic or all cultural resources embedded in the archaeological resources found on public submerged lands of the state (thereby land and to collect any items of historical including land under rivers and lakes, as or archaeological interest.42 well as the coastal waters). These states Most states have created an historic had developed procedures for a permitting preservation commission, archaeological system to allow exploration and excavation commission or both. The primary duties of submerged resources, similar to those of such commissions typically include (and, in some cases, administered by the monitoring the discoveries of state cultural same state agency) that apply to terrestrial resources, maintaining lists of sites that archaeological remains. In enacting the have been or should be designated as ASA, Congress recognized that the focus of historical sites, recommending sites for traditional maritime law was “commercial, acquisition by the state, conducting surveys not cultural resource management or of the state’s historical and archaeological recreation”37 and that it was therefore not sites, promoting and increasing knowledge well-suited to accomplishing preservation and understanding of the history of goals.38 the state, and compiling and filing an annual report to the governor or another III. State Legislation appropriate official. Every state has a State While federal law governs federally owned Historic Preservation Officer, who assists and controlled land and can indirectly in implementing the National Historic protect sites located on private land Preservation Act, and many states also through ARPA’s interstate trafficking have an office of the state archaeologist. provisions,39 direct regulation of state The state archaeologist may have particular lands and of private land is left to the state responsibility for the reinterment of ancient governments under the Constitution’s human remains and the identification federalism provisions.40 Each state has of such remains with existing cultural passed ARPA-equivalent statutes to protect and ethnic groups. The appropriate state the archaeological heritage by vesting agency grants the permits or ownership and control over archaeological necessary for exploration, excavation, or sites and objects located on state-owned or disturbance of archaeological resources and may establish qualifications, reporting 37 H.R. Rep. No. 514, 100th Cong., 2d Sess., pt. 1, at 2, and other requirements. reprinted in U.S.C.C.A.N. at 366. 38 The ASA charged the Secretary of the Interior with However, state regulation of sites developing Guidelines for the purposes of preserving on private land raises more complex shipwrecks of historical and archaeological value, questions because of the Fifth Amendment encouraging the development of underwater parks, prohibition on the taking of private and facilitating cooperation among a variety of property without the payment of just parties for purposes of recreation, cultural resource 43 44 management, and salvage efforts. Abandoned compensation. Only two states, Indiana Shipwreck Act Guidelines, 55 Fed. Reg. 50, 116 (1990). 41 See, e.g., Colo. Rev. Stat. §24-80-402(1)(reserving 39 See supra note 22. Under the National Historic title to the state of “all historical, prehistorical, and Preservation Act, 16 U.S.C. §§470-470w-6, the archaeological resources in all lands, rivers, lakes, government is required to assess adverse reservoirs, and other areas owned by the state or any consequences caused by a “federal undertaking” … political subdivision of the state …. [These] resources to historic that are listed or are eligible shall include all deposits, structures, or objects which for listing on the National Register of Historic Places; provide information pertaining to the historical or if such adverse consequences may occur, then prehistorical culture of people within the boundaries the government must attempt to mitigate those of the state of Colorado ….”). consequences. 16 U.S.C. §470f. While this provision 42 See, e.g., Me. Rev. Stat. Ann., tit. 27, §374 (outlining most typically applies to projects on federally-owned procedures and conditions for obtaining a permit to land, it could apply to privately-owned land if the excavate an archaeological site). project qualifies as a “federal undertaking.” 43 See supra notes 5-6 & accompanying text. 40 See supra notes 4-6 & accompanying text. 44 I.C. §14-3-3.4-1. In Whitacre v. State, 619 N.E.2d Continued on page 15 Art & Cultural Heritage Law Committee 14 american bar association section of international law winter 2012, vol. Iv, issue no. 1 and Washington,45 seem to regulate burials found on private land.49 These through the use of technology including directly archaeological resources located statutes vary in their details but generally cameras and trip wires placed at sites. on private land. Alabama seems unique limit what the landowner can do on the While unavoidable under the United States’ in vesting ownership of all archaeological land if this means disturbing a burial federal system, the division of authority resources in the state, although, like most and often require consultation with the between federal and state law enforcement states, the landowner’s consent must be Native American tribe to which the human likely makes the task of protecting obtained before excavation is carried remains belong. In some cases, the burial archaeological sites through interception out on private land.46 However, most can be exhumed and reburied in a different of trafficked archaeological resources and states engage in indirect regulation by location. In some cases, the statute may be reducing the market demand for illegally- conditioning the grant of a building or interpreted to prohibit construction on a obtained artifacts much less efficient and other permit on an archaeological survey portion of the private land. Such statutes effective than in other countries. u to determine whether the construction withstood constitutional challenges, activity would jeopardize archaeological alleging that they constituted a taking of or cultural resources.47 States may private property without compensation, in also offer inducements for voluntary Iowa and Minnesota.50 preservation of sites, such as by granting tax exemptions for the donation of a IV. Conclusions conservation .48 Enforcement of ARPA and other federal Approximately half of the states statutes is complicated by their limitation specifically regulate Native American to archaeological resources located on or removed from federal lands. This means that for the prosecution of someone who 605 (Ind. Ct. App. 1993), the court held that the landowners were required to obtain a permit before loots an archaeological site or otherwise conducting an excavation on land they had acquired traffics in archaeological resources obtained for the purpose of conducting an excavation. They in violation of ARPA, the government must challenged only the interpretation of the state establish that the artifact originated from statute as to whether it applied to private land (the federal lands, rather than from state or court held that it did) and did not challenge the 51 statute as a possible regulatory taking. private lands. Prosecution by state law 45 The Washington statute prohibits any removal, enforcement is further complicated by the excavation, alteration, damage, defacement division of jurisdiction among the fifty or destruction of any historic or prehistoric different states as well as between state archaeological resource or site or removal of any and federal law enforcement. Therefore, archaeological object from such site on the “private and public lands of this state” without a permit. establishing the precise location of origin Rev. Code Wash. §27.53.060. The statute withstood of an artifact is crucial to a successful constitutional challenge on the grounds of vagueness prosecution. However, in the absence of and overbreadth in State v. Lightle, 944 P.2d 1114 (Wash. a sting or undercover operation, the only App Ct. 1997). way to establish the origin of artifacts is to 46 The statute states: “The State of Alabama reserves to itself the exclusive right and privilege capture looters in the act of looting. While of exploring, excavating or surveying, through this is difficult, it has been accomplished its authorized officers, agents or employees, all 49 See Patty Gerstenblith, Protection of Cultural aboriginal mounds and other antiquities, earthworks, Heritage Found on Private Lands: The Paradigm of ancient or historical forts and burial sites within the the Miami Circle and Regulatory Takings Doctrine State of Alabama, subject to the rights of the owner after Lucas, 13 St. Thomas L. Rev. 65, 102 n.149 (2000). of the land upon which such antiquities are situated, 50 See Hunziker v. Iowa, 519 N.W.2d 367 (Iowa 1994); for agricultural, domestic or industrial purposes, Thompson v. City of Red Wing, 455 N.W.2d 512, 516-18 and the ownership of the state is hereby expressly (Minn. App. Ct. 1990). declared in any and all objects whatsoever which 51 Prosecution for violations of ARPA is more difficult may be found or located therein.” Ala. Code §41-3-1. in the Ninth Circuit because of the decision in United 47 See, e.g., Murray v. Oregon, 124 P.3d 1261 (Or. Ct. States v. Lynch, 233 F.3d 1139 (9th Cir. 2000), requiring App. 2005)(discussing Oregon statute requiring an that the United States prove that a defendant knew archaeological survey before permit can be granted that the object involved in the crime qualifies as an for activities on private land that would disturb or “archaeological resource”— that is, that it is more interfere with archaeological or cultural resources, than one hundred years old. On the other hand, the but dismissing land owner’s claim as not ripe). Tenth Circuit held that the government does not 48 Lawrence R. Kueter & Christopher S. Jensen, need to establish that a looter knew the resource Conservation : An Underdeveloped Tool was located on federal land because that is a to Protect Cltural Resources, 83 Denv. U.L. Rev. 1057 jurisdictional element of the statute. United States v. (2006). Quarrell, 310 F.3d 664 (10th Cir. 2002).

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Legislation & Persuasion – Treasure Trove in Scotland Stuart Campbell, Treasure Trove Unit at the National Museums Scotland

nder Scots law, any newly historical artefacts, which are more recent discovered find of archaeological than the 300 years threshold found often or historical significance is in other jurisdictions. Uconsidered as part of the national The law used to uphold this system heritage, and it is the aim of the Treasure does, however, have an unusual pedigree Trove system to ensure that such find are as it was initially formulated to uphold the kept in common ownership, displayed, or rights of the monarch. It comes not from held by museums for the public benefit. statute law but Scots common law, uniting Scots law provides for a wide definition the disparate strands of Treasure Trove – of ‘treasure’, being restricted neither and rather more pertinently – the principle to precious metal objects nor to those of bona vacantia or ownerless goods; quod which are over a certain age; in practice nullius est fit domini regis (that which belongs base metal and stone objects are covered, to nobody becomes our Lord the King’s). allowing prehistoric stone or copper alloy In practice, the system claims direct objects to be claimed, as well as significant Continued on page 17 Art & Cultural Heritage Law Committee 16 american bar association section of international law winter 2012, vol. Iv, issue no. 1 descent from a medieval law which was intended to provide extra income for the monarch, by holding that any treasure which was found concealed or buried and where the original owner could not be traced belonged to the Crown. Archaic as this may sound, it is of course the same principle which allows the state to inherit the property of those who die intestate, and otherwise governs the ownership of property in civil society. From the 18th century it was a right surrendered to civil government as a model of modern constitutional government, developed and gradually transformed from a law operated for the fiscal benefit of an individual to one operated for the public good. While the law has medieval antecedents, the system which operates it is comparatively recent. Although the system has operated in a regular way since the late 19th century, there was no overall consistency, and in the late 19th and early 20th centuries there was a demonstrable reluctance for the Crown to press its claim against unwilling finders. The system was formalised only in the 1960s as a result of a court case in which the Crown asserted its rights of ownership. The case of Lord Advocate v. University of Aberdeen saw system has been increasingly codified and All these steps are necessary, as, in the Crown successfully assert rights of structured in line with familiar tenets of addition to the law itself, the success ownership against Aberdeen University good government such as transparency, of the system relies on the practical over the St. Ninians Isle Treasure, a independence and accountability; the implementation of the system. While hoard of 8th-9th century silver objects minutes of the meetings of the allocation the law is central to the operation of the discovered during a university excavation. panel are published on the Treasure Trove system, its overall success (in the sense that It would be fair to say that this decision website, thereby removing the unwonted finders and museums cooperate willingly) focused minds somewhat amongst the air of mystery which many perceived depends on the perception that it is fair, museum community. The lessons learned about these meetings. At the moment, the impartial and transparent. from this decision included the formation system operates as what are essentially In that sense, this article will not of an independent allocations panel to a series of independent bodies that discuss the implementation and refining of decide to which museums objects should have no vested interest in the outcome. state law found in other jurisdictions but be allocated. Previously the decision as The front-line service is the Treasure rather the practical application of common to allocation was made by the director of Trove Unit. This Unit is responsible for law. This common law basis allows for the then National Museum of Antiquities deciding which objects are claimed and a great degree of flexibility, there is a of Scotland. This type of change is highly providing for valuation information for great freedom on what can be claimed as important, as it challenged any perceptions the next stage of the process. This next Treasure Trove and no statute of limitations that the system was prejudiced in the stage is the responsibility of the Scottish on those claims. Thus, an artefact found favour of a large national institution. In a Archaeological Finds Allocation Panel 50 years ago and not declared would still Scottish context this was – and continues (SAFAP) whose role in most cases is simple; be viewed as Treasure Trove. In theory to be – a live issue, and in the past it was they must decide to which museums the and practice, an artefact taken to another certainly the case that many individuals – objects are allocated and the value of the country 100 years ago, and which has and indeed local museums – did not report reward or ex gratia payment due to the never been declared as Treasure Trove, objects as Treasure Trove as they feared finder, a decision which is then approved would still legally be considered Crown they would be removed to Edinburgh. by the Crown Office which retains ultimate property under common law. Since the late 1990s onwards the responsibility for the system. Continued on page 18 Art & Cultural Heritage Law Committee 17 american bar association section of international law winter 2012, vol. Iv, issue no. 1

Lest this sound rather draconian, it wish. The rationale is that the majority of should be emphasised that such a broad coins – even medieval coins – are common, law must be applied with discrimination and there seems to be no purpose in filling and care, and there is no desire to push museum cabinets with what are effectively the law to these natural limits. Equally clones, identical specimens of the same so, there is no moral or legal objection to striking. What matters about the majority …the laws are used antiquities held in private hands, provided of coins is their type and where they were to require reporting they are so held legally. Objects are claimed found, the crucial information which solely in terms of any archaeological allows researchers to build up a picture so that historic and or cultural value they possess, an old of the use and distribution of coinage and find lacking “findspot” information (i.e. the manner in which this changed over cultural information information about where the object was time. It could be argued the coin itself is be reported, rather than discovered) would be of limited value and of less importance than this information. of no interest to the system. In this case, the laws are used to require reflecting any intrinsic In general terms, the question of reporting so that historic and cultural ownership of an antiquity is often viewed information is recorded, rather than to value or worth from the perspective of the rights and reflect any intrinsic value or worth of the of the objects… liberties accorded to the finder. While this objects (although a coin collector might seems a natural position to take, it can think otherwise). also be a misleading one. From a Scottish This position reflects one of the perspective, it is more appropriate to virtues of working with the broad brush consider the position from the position of common law, the position recounted of the landowner. Under Scots law, the above reflects not legal code but the property of the landowner is defined and settled view of curators and historians, protected as the physical buildings and and it can be adapted to reflect new ideas other structures on the land, and any or new discoveries. The requirement that economic use to which that land can be put. only found coins that are over 300 years The law controls and regulates access to old need to be reported reflects not a land and guards strongly against incursions legal basis, like the Treasure Act in use in or unauthorised access or activity. England, but implies only that Georgian or Landowners rights are comprehensive, and Victorian coins are not significant and do run from mineral extraction to hunting, not require to be reported. Where coins are but they do not include any objects which significant, they can of course be claimed, happen to have been lost upon that land. It and in the last three years the Treasure is at this point that the state ownership of Trove system has claimed four significant these objects for the public benefit can be specimens of 12th century Scottish asserted. coinage, all from rare or unknown issues. A useful demonstration of the way in In brief, the advantage of the common law which the system views antiquities can be approach is that the system is not bound seen in the case of coinage, a commonly by a paradigm of significance which has found antiquity that is currently a great then been codified by law. Rather, the source of great vexation in the antiquities requirements under common law can be trade. In Scotland, it is a requirement that altered to reflect new developments in all coins over 300 years old be reported to archaeological research. the Treasure Trove Unit. What happens As the law in Scotland stands, it is of next, however, is an illustration of the course, very different to the system in difference between the object itself and the operation in England and Wales where information it holds. Although coins are finders frequently retain possession of the legally Treasure Trove, the vast majority objects which they find. Commentary on are returned to the finder after their type this difference is a frequent recurrence and findspot is recorded by researchers. in British debates, but it is perhaps less At this point, and like any other antiquity troubling to those who work in federal which the system disclaims, they are in systems. The distinction is nevertheless a practical terms the property of the finder, useful way to address portable antiquities to be disposed of or sold as they might Continued on page 19 Art & Cultural Heritage Law Committee 18 american bar association section of international law winter 2012, vol. Iv, issue no. 1 law as a whole. To take the analogy of homicide, the notion of murder as a crime is a fairly universal notion, reflecting a commonly held cultural revulsion. Where laws differ is an interesting demonstration that the laws in the UK reflect not an idealised practice or cultural attitude to the public or private ownership of antiquities, but rather that the laws are constrained by other, underlying practicalities; these are of course property laws. The laws regarding portable antiquities differ between Scotland and England because of the different way each law categorises and defines property. It is a useful demonstration that the law treats antiquities fundamentally as property – perhaps particularly so in Scotland – but, as will be discussed below, that does have limitations as the physical fabric or ownership of an item is only part of what is culturally significant. In the last ten to twelve years, the Treasure Trove system has come to greater prominence as more objects are discovered will be allocated to their local museum. drunk driving, a criminal offence where and declared. This change largely reflects This is a useful introduction to the incidences have sharply reduced as society the activities of metal detectorists, a rather complex ways in which attitudes to deems it increasingly unacceptable. In this group that historically has had a troubled the law can play out in the real world, and context, any successful campaign against relationship with archaeologists. It is how the importance of an antiquity can be non-reporting of an artefact should focus here that the principles of fairness and misjudged or misunderstood. To return on making the case that such a digression transparency are particularly important, as to the analogy of homicide raised earlier, is socially harmful, rather than a minor many metal detectorists have traditionally it is worth considering whether all laws personal infraction. viewed the work of archaeologists as a have the happy coincidence of reflecting In that sense, by curtailing a jointly ‘closed shop’ inimical to their interests. society’s values. In particular the heritage held cultural right in favour of an The wide range of objects which have been professional should always consider that individual or pecuniary advantage, the retrieved by metal detecting also highlight the general public – or a finder – might not non-reporting of an antiquity could be the useful flexibility in the system, as many think the non-reporting of an artefact as said to be a socially unacceptable act as are of unexpected type or date, and would particularly serious. This is not to say that much as a criminal one, although the not have been thought of when drawing up archaeologists are hopelessly out of step effectiveness in communicating this is not legislation designed to protect a specified with public opinion; at the time of writing, always easy as it relies on understanding class of portable antiquities. Significant visiting museums or sites of historic and addressing other misapprehensions. and unexpected finds comprise such interest is among the most popular leisure One in particular is the confusion varied items as political objects relating to activities in the British Isles. between an object’s significance and its the Jacobite rebellions and the fragmentary In general, the apparent problems in value, where the importance of a find remains of a 16th century artillery piece. cultural preservation in Scotland are not may be equated with its monetary value. This concentration on procedure and those commonly associated with the dealing It is also a demonstration that not all non- process over the specifics of the law are in illicit antiquities by well informed, reporting is done with criminal intent, as for a very good reason; under Scots law, organised criminal bands (although the the author has encountered cases where it would be considered a criminal offence potential for cultural harm by this activity objects are not reported because the to keep an object, yet it is a crime which is does exist). Rather, the difficulty lies in finder did not believe they were valuable not readily detectable. It is not the law per the phenomenon where individuals, who in a purely fiscal sense. se that compels a finder to submit a find, might otherwise be law abiding, break Emphasising these distinctions but rather the knowledge that he/she will laws in an area where cultural values deem is arguably made harder by the fact be treated fairly and rewarded justly; there it acceptable to do so. In a British context, that many cultural antiquity laws are is a presumption in favour that their find an analogy and solution may be found in Continued on page 20 Art & Cultural Heritage Law Committee 19 american bar association section of international law winter 2012, vol. Iv, issue no. 1

derived from property laws, focusing These are all concepts which are less on ownership of the object itself rather clear cut than the simple possession of a than the associated archaeological physical object, and arguments that are information such as findspot, context perhaps less well-suited to a general public and circumstances of discovery. This exposition; or, at least, archaeologists have fact has confused the debate over illicit not been particularly clear in making …any successful approach antiquities where concepts such as them. In conclusion, however, the author to the public stewardship… archaeological information and context would argue that any successful approach tend to be overlooked in favour of the to the public stewardship and regulation of must make clear that such inherent or intrinsic value of an object. It archaeological finds must make clear that could be argued that the context of the such laws work not for the benefit of the laws not work for the find should be viewed as the intellectual archaeological profession but for a wider benefit of the archaeological property rights which coexist with public benefit. In the Scottish system in the Crown’s ownership of the physical particular, museums play a crucial role profession but for a wider object. In the case of objects like coins, in both providing and justifying this far- they can be returned to the finder once ranging cultural entitlement. u public benefit. the cultural importance of the object has been recorded.

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