KENTUCKY LEGISLATURE HB 117

 

I have a total problem with HB 117 being proposed to the Kentucky Legislature.

  First problem is that it intends to take control of private property.  It suggest that anyone excavating archaeological sites on private property has to obtain a permit from the Kentucky Heritage Council.  I find this a problem on several levels.  The first is that it cheapens private property rights.  It takes the control of private property from the owner and gives some control to a government agency.  Most sites contain few artifacts. Often the site is found from erosion, road construction, farming, mining, changes to water courses, and other events.  Excavation is often the only way to save anything and there are not enough tax dollars, archaeologist and time to save 1% of what is destroyed every year. Usually there are no burials and no artifacts of value.  If you doubt this, take a look at the professional archaeologist who spend $100,000 or more to find a few pot shards, flint flakes and scrappers in a site after a months excavation.  Yes, on rare occasions, something of value is found.  However, it you took all the excavation activities by all amateurs and then subtracted their costs of travel, etc., took value of artifacts, subtracted expenses and divided by the hours spent, I doubt that the average hourly wage would exceed .20 an hour.  In short, it is done for the love of the find and not value of the artifacts.

  So is the permit a tax?  Is it to prevent independent archaeological research?  Is the permit to prevent the immediate salvage of artifacts or sites in harms way?  Letís face it, if a tractor is coming across the field and a cache was just plowed up, the person there has about 15 minutes to save what is left or let it be destroyed forever on the next tractor pass.  Do they have to leave to get a permit?

  The second problem is that HB 117 will mandate a taxpayer bureaucracy to oversee the permits, compliance, and who is acceptable.  My problem with this, is that it becomes a human decision.  An open ended law will be subject to human interpretation, and will therefore be unjust at some point with the eventual succession of power by someone with a liberal political agenda.

  HB 117 wants to allow descendants access to private property to cemeteries.  What is a cemetery?  What defines a cemetery?  If I own 1000 acres of land and there is a rock outcrop, cave, high plateau, hill top, or bluff, there may at some time have been a burial somewhere on the property.  Is that a cemetery, even though it is unmarked and we actually do not know if there is a burial?  Is the whole farm then a cemetery?

  Who is a descendant?  We all came from somewhere and if you go back 5000 generations, we are probably all related.  There is abundant archaeological evidence of the Atlantic Maritime Tradition that goes back to Denmark and Norway as early as 7000 years ago.  Possible Siberian migrations 12,000 years ago, evidence of Chinese contact 4000 years ago, Irish at 2000 years ago and other evidence of contact; who is related?  Silurian technologies from possibly Spain, the Kennewick man from Japan and others remains from Paleo and early archaic cultures clearly show a Caucasian ancestry. WHO IS A DESCENDANT?  Is it someone from Japan, China, Norway, Spain, etc...?

  To make anyone the Czar of unraveling this archaeological maze is a total farce. Politically correct absurdity.  It comes down to political activism and which side of the fence this Czar or bureaucrat sits when it comes down to their judgments and decisions.  A politically correct apologist from academia will give the entire farm to the Indians.  A hard nosed constitutional constructionist would tell the militants that they do not have a leg to stand on.  Unfortunately, those proposing such open ended legislation will then appoint the academic apologist to make the decisions and the ignorant populous will go blindly along. Intellectual logic based on fact and science versus feel good decisions; unfortunately logic usually loses to sentiment.  Yes we like thousands of migrations around the world before us, have taken land from a weaker culture and dominated the area and become the dominant culture and inflicted our laws and will.  Nothing is going to change that, and the culture that was replaced will never control the country again.  Not unless they buy it back with tax free gambling money.

  We have seen that the Indian militants at Dickson Mounds in Illinois claimed to have the religious answers.  Disturbing burials was abhorrent to these militants and against their religion.  Fine, so donít disturb your burials.  Unfortunately, the people that buried at Dickson Mounds at 1100 A.D. did not share this same religious belief.  The archaeological evidence was clear, that once the ceremonies were concluded and a time of mourning was over, the remains had no more importance to the culture than a clod of dirt, a cobble or a tree root.  The culture that did the interments, not only disturbed the burials, but they did it often and sometimes disturbed as many as four successive burials in the same area. Each new addition was excavated into the last and the bones were tossed out like anything else in the way.

  So the Native Americans of today have no rights to any burials other than the oneís that are blood linked and document able from historical evidence to their family, clan or tribe.  Everyone has beliefs, feelings and agendas.  These beliefs and feelings are just that personal beliefs and feelings, not facts, not based in history, archaeological evidence or any logical data to support such beliefs. Some people still believe the world is flat.  Are we as a culture to accept this as a scientific fact?  It is their beliefs. Are we to make such beliefs the National Religion of the United States, with the same status as fact and supreme above all other religions and beliefs?

  So far, I have outlined a lot of problems based on human nature, illogical claims, too much government.  The bill is far too broad and I personally believe that it is that broad because there are some who intend to expand the bill if it becomes law and use it as a weapon against owners of land, archaeologist and collectors.

  Reason would say and no one wants to disturb any graves where there are living heirs or anyone who wishes to continue their relationship with a blood established ancestor.  If such a cemetery does exist on private property, I am sure the land owner already allows access to those burials.  There may be an exception, but I have not heard of it happening.  The problems have been from groups of militant Indians wanting to claim, mounds, parks, former village sites, farms, cities, public lands and other real property, through various claims based on religion, burials, sacred sites, importance to the tribe, treaty violations, etc.

  We have no problem with historically proven relationships to the remains in formal cemeteries.  If they want to remove them from private land and take them to Indian controlled lands and conduct what ever ceremonies they desire, we have no problems with that either.  When militants decide that there was a village at some time and somewhere there has to be burials so they want the land; that is a problem.  When they say they want to claim land rights to burials in mounds from 300 A.D. or possible burials on a bluff from prehistory, we have a problem.  First, they are not  related to the burials and second they do not own the land.  Can you go back to Ireland and claim repatriation of a peat bog burial, a catacomb burial in Italy, a 100,000 year old cave burial in Germany or Spain?  The answer is no, you are not related and have no grounds.

  If the state has archaeological materials, including burials that are not related to any living tribe, they then belong to everyone and the state does not have to rebury them.  Often such finds were obtained with Federal Money and under Federal Law. The Antiquities Act and the Archaeological Salvage Laws mandate the State to preserve such items for the Public.  If you did not know it, you are the Public they are talking about.

  If there are historical remains, identifiable to the name of the person, or identifiable to a known family, clan or tribe, the remains are returnable under the procedures stipulated in the Native American Graves Protection and Repatriation Act.  So this situation is already provided for and every Tribe knows about it.  The State does not need to do anything.

  A tribe already has the right to conduct their traditional ceremonies for any purpose they deem necessary. Native American Religion and religious ceremonies are already protected by the Federal Native American Religious Rights Act.  What is not covered is some one or an independent group wanting to make up ceremonies, a blend of many cultures from the militant Pan American Indian Movement, and then conduct these ceremonies on non related remains or artifacts.  So some self proclaimed spiritual leader, making up a ceremony to honor the remains from a thousand years ago or older with no affiliation to any known or existing tribe is not covered.  The law when it was passed was clear.  It pertained to blood related remains and attendant artifacts.

  I have no problem with someone encountering human remains to be mandated to stop and report it to the local corner.  If in danger of destruction such as a farm field or mine, I also have no problem with the remains being excavated to safeguard them and then the corner contacted.  If prehistoric, they could be reburied or turned over to the state.  If historic, the corner could contact the state for the remains to be picked up and put up for claim under NAPRA. 

  Now to a major problem to ponder.  What is a burial remain?  There are probably a billion artifacts in private and public hands.  Most were plowed out of fields, found in streams, river banks, some were dug, most were not found in context with human remains.  Pottery came out of house floors, storage pits, found eroding out of river banks, fire hearths and yes, some in cemeteries.  Even the cemetery pottery is usually common cook ware and was often not found with a burial, but just in the general area?  Was it an offering or just left by one of the burial party?

  As soon as you begin passing a law that says possession of any artifact is a felony or illegal, you have an ex post facto problem.  It has been legal to own these items for over 2000 years, as the archaeological evidence showed that prehistoric Native American cultures collected.  The dominant culture has collected for over 300 years.  Thomas Jefferson is recognized as an amateur archaeologist and the Father of American Archaeology. 

  Another problem is that some militant Indians have proclaimed that every broken pot shard, arrowhead, celt, bone awl, or other artifact is religious, sacred, burial, or some other trigger word or phrase.  Since over 99.9% of the artifacts in collections have been collected for over 50 to 100 years and never saw a burial, how can anyone say this piece is a burial item and something else is not?  How can any legislature make these things a felony just because some liberal apologist wants to call the item a burial object.

  Collectors do not display human bone.  The exceptions are skull cap gorgets, human bone awls, finger bone necklaces, and other artifacts found, (mostly in plowed farm fields), which the prehistoric cultures manufacturers made and lost.  Saving these from the plow and displaying them preserves them and educates us as to the prehistoric culture.  These artifacts are not burials, they are ornaments.

  If the Kentucky Heritage Council wants to protect graves, prevent the looting of historic graves and preserve the information related to prehistoric graves, then it should be wise enough to realize they are going the wrong direction and their time should not be spent creating open ended laws with no definitions. Religious, burial, descendant, cemetery, related, who can get a permit, how to report accidental discoveries etc. are all to vague and subject to change based on who is implementing the law. Instead, the State should sit down with the State Archaeologist, the collectors, tribal leaders, and farm bureaus and come up with a system that promotes reporting rather than driving it underground, that does not create 40,000 felons in Kentucky who now have collections big and small.  An answer that protects historical cemeteries, encourages reporting of pre-historical artifacts and discoveries and does not penalize or impinge on the rights of land owners.

  Suggestions.

  Cemeteries should be an organized burial area of a known cultural tribe or group dating from 1750 A.D. to present.  This would allow historic Tribes to protect their burial cemeteries. To guarantee that all such sites are preserved, the tribes should have one year to identify all such cemeteries to the State Archaeologist by giving the present land owner and GPS coordinates.  Such cemeteries should then be mapped and protected.  If in danger of farming or other disturbance, the remains should be excavated by the State Archaeologist and the tribe and reburied at a spot on Indian lands with what ever ceremonies the related Native Americans wish to conduct.  No scientific investigation will be allowed unless the tribe authorizes the State Archaeologist to conduct such studies before reburial.

  Artifacts can not be determined to be religious, burial or anything other than cultural.  Prehistoric artifacts are out of situ and of no archaeological value by definition. Such artifacts are just works of art, preserved for the present in private and public collections. In time, most important artifacts will end up in public collections.  Since only a very small percentage of all artifacts were burial related, and because they were usually collected decades ago, there should be no laws to make their ownership illegal.

  Instead of making things illegal, the Kentucky Heritage Council might wish to create programs for public education, archaeological certification in field survey, excavation and lab studies.  They may wish to issue a basic test and if passed, allow collectors to legally excavate sites on private land, as the state will never have the funds or time to visit most of these small sites, much less excavate them.  Instead, the state may want to open an internet site where the collectors can freely, openly and legally report sites, be given a site number and a password and then allowed to log on and report their finds.  All collectors on the same site could then see who else had found the site and share their finds and the Kentucky Heritage Council could then harvest the information to create databases and cultural modals.  If a site was shown to be important, then the State Archaeologist should contact the landowner and do an organized excavation.  Amateurs could even produce a free and productive labor force.

  Accidental discoveries of human remains by law would have to be reported to the local corner.  The excavator must stop all activities in that area.  They could continue a few feet away that day, but within 24 hours they must report the find to the local Corner. If prehistoric, he would contact the State Archaeologist Office. Based on his report they could decide what to do. If it is a mine company, farm, construction site, a representative of the State could be sent to investigate, or a local certified amateur contacted to take a look and if a minimal find, finish the excavation. The remains could then be sent to the state for study with a report and photoís.  Any artifacts would be photographed and submitted if desired to the state for casting and study, but then would be returned to the collector.  This does two things.  One, there is no reason to lie or not report the finds because the collector gets to keep them.  It allows the state to study the entire find, and because it was accidental and reported, there was no law violation.

  Same procedure for Historic remains, except the Corner would be mandated to excavate the remains and take possession.  Tribes would be notified and they could make claim under the Native American Graves Protection and Repatriation Act.  State Archaeologist would have to send a representative and with assistance from the Tribes, try to find out the size of the cemetery if any, or discover if it was a random and single burial.

  For science, native rights, landowner rights, and the state, some common sense should be used.  All sides need to recognize the desires of the other, but not in a vacuum and not accepting nonsense as law. Instead of pushing an anti-science agenda, and creating laws without definitions, should not the Kentucky Heritage Council be more interested in protecting identifiable historical Native American cemeteries, allowing the State Archaeologist to do his job and to set up a program to protect sites and information rather than forcing the destruction of both.   HB117 is bad legislation at best, unconstitutional and unenforceable at worse.

  Any time the State wishes to impose expenses and special land use on legal owners or real property, they have created a problem under the takings clause of the Constitution.  I think the entire concept is ill thought and I do not believe that there exist a problem with Native Americans visiting historic cemeteries on private land.  If that problem does exist, then the State with the Tribes should remove the cemetery and move it to an acceptable location.

                                                     First Thoughts on HB117

 

                                                      Thomas E Browner

                                                      Past President Illinois State Archaeological Society

                                                      Past President Hawkeye State Archaeological Society

                                                      Past President Central States Archaeological Societies, Inc

                                                      Legislative Monitoring Committee Chairman CSAS