Bonus Editorial: The Surveyor, Cultural Resources and the Law

July 17, 2000
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Bonus Editorial

Recently, a surveying firm in the Pacific Northwest set a control point on a shell midden. Though they were not charged a fine or with a crime, they did incur mitigating expenses and strained client relations. When I first heard this news, I wondered what a shell midden was and what laws protected them.

A shell midden is a deposit that contains large amounts of shellfish remains. They may be at a village site or a shellfish processing site that was created by Native Americans centuries ago. Besides shellfish remains they also contain fish and animal bones (Stilson, Meatte and Whitlam, undated.). Human remains have also been found in shell middens (Ames and Maschner, 1999). Most shell middens in Washington are less than 3,000 years old. The oldest known shell midden site in Washington is 5,000 years old (Ames and Maschner, 1999).

To the archeologist shell middens are a source of considerable information. To the unwary surveyor, they may be a good vantage point and a harsh lesson in the laws protecting cultural resources. Knowing what a shell midden pile is and having seen pictures of one now, I know that I still would not recognize another one unless it had a control point on it and was identified on a map.

If a shell midden or other cultural resource is located on federal land, or on a federal project or on a federally licensed project, or on a project that any Federal agency provides any financial assistance, federal statutes protect it. Though the intent of these statutes may have been to prevent the intentional theft and destruction of cultural and archeological resources, it may also be applied to the uninformed surveyor.

The American Antiquities Act of 1906, the Archeological and Historic Preservation Act of 1974, and the Archaeological Resources Protection Act of 1979 are some of the federal laws protecting cultural resources. There are also Federal Regulations, Federal Standards and Guidelines, and Executive Orders protecting cultural and archaeological resources. Most libraries have these in their reference section. They can also be viewed at: www.cr.nps.gov/linklaws.htm.

In Washington, state laws protect cultural, archeological and historical resources on state and private land: RCW 27.44 through 27.53.901. These statues specify that "Any person who knowingly removes, mutilates, defaces, injures, or destroys any cairn or grave of any native Indian, or any glyptic or painted record of any tribe or peoples is guilty of a class C felony punishable under chapter 9A.20 RCW". The punishment for a class C felony is not more than five years imprisonment and/or not more than $10,000.00 in fines.

Surveyors wanting to protect their company and themselves could include some protective clause in their contract. This will at least inform the client that you are aware of cultural resource issues and are working as a partner to ensure their protection. The simple statement, "The client shall inform the surveyor of any cultural or archeological resources on the site prior to beginning work," will initiate a dialog and place some of the responsibility on the client. Be aware that this is not a situation to sit back and reassure yourself that you have insurance. Insurance does not cover criminal acts.

I was working on a route survey when I heard of the shell midden incident. One day, one of the field crews came in an informed me that the route was being changed, because an archeological site had been discovered. I had spent some time investigating Washington's archeology by then and knew that it wasn't a shell midden since the crew was working several hundred miles from the coast. What humbled me as the crew told me the news of the re-route, was that I had walked the section of the route that was being changed and had not noticed anything that I thought might be a cultural resource.

I had read several books on the archeology of the Northwest Indians, yet had not recognized anything unusual in the area. Except for the fact that the area in question was lacking in "original monuments", it seemed like regular land to me. I recalled some different looking dirt mounds but nothing that looked that unusual to a surveyor who has done his share of construction work. As it turned out the dirt piles were just dirt piles. The archeological site was a stone outcropping that had been used to gather stone for tools. To this surveyor it looked very much like a big rock and not an archeological site.

Identifying cultural resources is not the expertise of the surveyor. There are firms that specialize in this. The general public and particularly the surveying profession should be aware of cultural resource issues. Cultural resources are finite, irreplaceable, and nonrenewable. Their protection is going to become more important. The surveyor's role in this should be a positive one.

When I was young, if I found an arrowhead in a neighbor's field, I'd quickly put it in my pocket and call it mine. Later, when I saw my neighbor, I'd show him what I'd found and he would show me some arrowheads that he had found. Those were the boys' rules then. They are not the rules now.

An arrowhead found on private land may be considered the property of the landowner. That maybe part does not extend to the trespasser or to the surveyor. I sometimes use the substitution rule to see how logical an argument is. Can you imagine saying to a property owner that you found a tractor on his ground and decided it was yours? Though artifacts found on private property may belong to the property owner, they are still protected by state law.

RCW 27.53.060 (1) "On the private and public lands of this state it shall be unlawful for any person, firm, corporation, or any agency or institution of the state or a political subdivision thereof to knowingly remove, alter, dig into, or excavate by use of any mechanical, hydraulic, or other means, or to damage, deface, or destroy any historic or prehistoric archeological resource or site, or remove any archeological object from such site, . . . without having obtained a written permit from the director for such activities." It is also a class C felony to violate this statute.

I have queried several archeologists on the arrowhead scenario, asking them if it is legal to keep an arrowhead that you find on your property. I have not gotten a definitive answer. It is similar to the question that surveyors get. "If this fence has been here for ten years, is it the property line?" Surveyors should be able to recognize both the complications of a seemingly simple question and the value of an ordinary rock that might have some odd numbers chiseled on it. In archeology, like surveying, the location of the rock contributes to its informational value.

The cultural and archeological protection laws, like most laws, have some contradictory elements. What RCW 27.53.040 (3) gives, R.C.W. 27.53.060 takes away. What is important to remember is the intent of the law. R.C.W. 27.44.901 calls for R.C.W. 27.52.040 "to be liberally construed to achieve the legislature's intent. This tells me that we should leave the arrowhead where we found it and call the experts.

People have a visceral sense of their property rights. It is a territorial instinct that is often contrary to law. The feeling is you can do what you want with your property and with anything you find on it. Anyone that deals with property issues knows that this is not true. We know about easements, mineral rights, and environment regulations.

Cultural myths are beyond any material value and have no ownership. The physical artifacts of those myths can be as sacred as the myths themselves. Can you imagine the cultural value of a 3,500-year-old stone tablet with ten rules chiseled on it? Or the cultural value of an ancient parchment that might contain historical evidence of a rabbi that taught in Jerusalem 2,000 years ago?

The archeological record of the Pacific Northwest Indians is thousands of years older than these events. Understanding the tribal concerns of any archeological artifact or site is only reasonable.

R.C.W. 27.44.050 pertains to civil actions an Indian Tribe or a member of a Tribe may take apart from any criminal prosecution in violation of RCW 27.44.040. If the threat of a class C felony is not enough of a deterrent, read the entire contents of R.C.W. 27.44.050, which contains that dreadful oxymoron "reasonable attorneys fees". The loosing defendant, in an R.C.W. 27.44.050 civil action, can be fined; "reasonable attorneys' fees"; reinternment expenses; "forfeiture of any artifacts or remains acquired or equipment used in the violation"; punitive damages and actual damages, which "include special and general damages, which include damages for emotional distress". Damages for emotional distress alone could be in the millions. Currently, there is a 30 million-dollar lawsuit in Washington with these elements.

Many people have viewed and still view the protection of environmental resources solely as a violation of their property rights. The protection of the environment has enriched all of our lives. The protection of archeological and cultural resources will also enrich all of us.

If you discover a cultural resource site that has been vandalized or looted, treat it as a crime scene. Do not poke around to see what you can discover or pick up any remaining artifacts. The footprints, finger prints and tire prints in the area are evidence. The perpetrators may be uninformed amateurs or professional criminals. If they are career criminals, you could be in danger. Call the police, as you should for any crime.

If you find or suspect that you have found a cultural or archeological resource in Washington, call Ron Whitlam or Allison Brooks at the Washington State Department of Archaeology and Historic Preservation, 360-407-0752, P.O. Box 48343, Lacy, Washington 98504. They will be able to direct you to the appropriate department. When you call, they will want to know what you found, where it is and the permitting agency if there is one.

I hope you take some time to learn about the history of the land you make your living from. It is a fascinating topic. The following books are a good introduction:

  • Kirk, R. and Richard D. Daugherty. Exploring Washington Archaeology. University of Washington Press, Seattle, WA. 1978.

  • Stilson, M. Leland; Dan Meatte; and Robert G. Whitlam. A Field Guide to Washington State Archaeology (Version 2.0). Washington State Department of Natural Resources, Olympia, WA. Undated.

  • Ames, Kenneth M. and Herbert D. G. Maschner. Peoples of the Northwest Coast Their Archaeology and Prehistory. Thames and Hudson Ltd., London, England. 1999.
      Websites:

      Washington State Community, Trade and Economic Development, Office of Archeology and Historical Preservation:
      http://www.cted.wa.gov/factsheets/local/arch_pres.htm

      For information on the Pacific Northwest Tribes:
      http://www.travel-in-wa.com/distinctly/native.html

      For Laws related to cultural resources:
      http://www.cr.nps.gov/linklaws.htm

      Comments or questions on this article can be sent to gervelis@aol.com

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