by Tracy C. Brown
We here at the Archaeology in Tennessee blog do not claim to be licensed attorneys, and the text of this blog post should not be taken or construed as legal counsel. If you need such counsel, please contact a licensed attorney in your state or U.S. territory. With that said, the owner of this blog has spent a great deal of the past 26 years working on federal contract projects that involved compliance with the many federal statutes and regulations applicable to protection of the environment in the United States. More than five of those years were spent as the lead Environmental Compliance Specialist for Battelle Memorial Institute (Oak Ridge), a federal prime contractor for the U.S. Department of Energy. Collectively, the texts of these environmental statutes and regulations are voluminous, complex, and highly detailed―much more so than the current federal cultural resource management statutes and regulations. Multiple volumes of these environmental laws and regulations easily fill several shelves in a bookcase. Over the years, our blog owner has found that certain general principles and interpretive rules of thumb apply to the content of virtually all federal statutes and regulations, regardless of the specific subject matter that they address. Therefore, with his input, this blog feels reasonably qualified to offer some thoughts on the CRM laws and regulations pertinent to hunting for artifacts in Tennessee and the confusion surrounding them within the American artifact collector community. This post is provided as a free public service of the Oak Ridge Archaeological Research Institute.
About four years ago, a nonarchaeologist manager in the environmental services firm where I worked asked me if it is against the law to collect American Indian artifacts while strolling along the edge of a Tennessee Valley Authority (TVA) lake with his little boy. This manager was not an artifact collector, and his sole thought was to find and keep an arrowhead or some other ancient artifact that could be the focus of a new learning experience for both him and his child. Yesterday, some unknown person did a search of the Archaeology in Tennessee blog, and their search question (slightly edited) was:
Is it against the law to hunt for Indian artifacts in Tennessee?
This question comes up relatively often here in Tennessee, so I thought this would be as good a time as any to offer some quick answers to this question for those who are interested.
The four verbs and verb terms one hears most often in such questions from ordinary Tennessee citizens are collect, hunt for, look for, or pick up an artifact. All four do not precisely state their real question. This question, perhaps better stated, is as follows:
Within the official political boundaries of Tennessee, is it legal for me to see an artifact lying on the surface of the ground or in a hole I just dug, reach down and grab it with my hand, stuff it in my pocket or sack, and take it home with me to be my private property for the rest of my life?
Herein I shall use the single verb collect to capture all that is in the above question. Because it is so late this night, I feel like offering my answers in a listing format, so please pay close attention to the following list:
(1) It is against federal law to collect any ancient American Indian artifact, historic-era American Indian artifact, or any other historic-era artifact on the federal lands and in the federal waters of Tennessee. This applies to any artifact found lying on the ground surface or any artifact found while digging a hole, scratching around on a river bank, scratching around on the shore of a lake, diving in water, or metal detecting on federal lands or in federal waters.
At this juncture, ordinary folks usually ask the following question:
Do you mean to tell me that if my 3-year-old son picks up just one arrowhead at a TVA lake access, stuffs it in the pocket of his Osh-Kosh-B-Gosh overalls, and takes it home, he has committed a federal crime?
The short answer: Yes. The existing federal laws and regulations do not contain any special exemptions or accommodations for a toddler who pockets just one artifact, for a tourist who does the same, or for the Little Old Lady from Pasadena. The only people allowed to collect artifacts on the federal lands and in the federal waters of Tennessee are persons who have received a written federal permit to do professional archaeological research. If you are not a professional archaeologist, your chances of getting such a permit are about the same as your chances of being struck by a lightning bolt originating on the planet Venus:
Some federal agencies even turn down research permit requests made by professional archaeologists. Other federal agencies refuse to answer even the simplest professional archaeologist requests for archaeological information and data. It kind of makes one wonder for what purpose their cultural resources are being preserved—and in which future century or millennium their squirreled away information and data might actually be used for something worthwhile. Why even call such information and data a cultural resource if no American archaeologist is ever going to be allowed to see it or use it? Yes, I know all of the standard arguments about site preservation, future archaeological technologies, and so forth. I agree with all of that like you do, but I am not talking about archaeological research that involves destructive new excavation of archaeological sites on federal lands—far from it.
I am talking about federal agencies who prevent professional archaeologists access to existing archaeological information and data already on-hand in paper and electronic files, information that could be highly useful in archaeological research right now without physically destroying anything. Some of these federal agencies will not even share this information and data with professional archaeologists in other federal agencies. If professional archaeologists cannot be trusted to appropriately and protectively handle/use this information and data, who can be? Are these federal bureaucrats preserving information and data so they can watch it decay in situ within a file cabinet or on a hard drive for hundreds or even thousands of years? Does that sound sane to you? If you are a Tennessee citizen or a citizen of another state and this outlandish federal agency dysfunction makes you as upset as it does me, please write a letter to President Biden, your two U.S. Senators, and your U.S. Congressman. Ask them to pass federal legislation that will put an end to this nonsensical withholding of already existing federal archaeological information and data from professional archaeologists. Withholding valuable archaeological information and data from professional archaeologists “just because I can” is not a viable or defensible use of federal tax dollars.
(2) It is against Tennessee state law to collect any ancient American Indian artifact, historic-era American Indian artifact, or any other historic-era artifact on state-owned land, state-controlled land, or in state-owned or controlled waters. This includes any artifact found by surface collecting or digging. The only people allowed to collect artifacts on Tennessee lands and in Tennessee waters are professional archaeologists who have received a written state permit to do archaeological research on state property. If you are not a professional archaeologist, your chances of receiving such a permit are about the same as those for incurring a Martian nerve gas attack while on tour in the Republica Inhambane, an extinct Portuguese colonial city-state in Africa that once issued its own postage stamps.
(3) It is against Tennessee state law to collect any ancient American Indian artifact, historic-era American Indian artifact, or any other historic-era artifact on county, city, or municipal lands (or in any waters they own or control) without permission from the appropriate county, town, or municipal agency. This includes any artifact found by surface collecting or digging. Some Tennessee local governments may have ordinances or formal procedures that must be followed to obtain such permission. If you are not a professional archaeologist, your chances of getting permission to collect artifacts on their lands and in their waters are about the same as those for winning the jackpot in the Planetoid Pluto Lottery.
(4) It is against Tennessee state law to collect any ancient American Indian artifact, historic-era American Indian artifact, or any other historic-era artifact on privately owned land in Tennessee without permission from the owner of the property. This includes surface collecting for artifacts, digging for artifacts, and metal detecting for artifacts. Although state law does not specify that such permission must be written permission, it is best to get that permission in writing with the property owner’s signature. Why is that?
Orally given permission is just your oral word against the property owner’s oral word—often with no third party witness. If some misunderstanding develops later between the property owner and a collector, and it goes to court, you will have no documentary evidence that you had permission to be on the property. Potentially, you can be convicted of trespassing, failing to get permission to collect artifacts on the owner’s property, and theft of landowner property. Artifacts on the ground surface and underground on any privately owned tract of land are technically the private property of the landowner. Two other warnings need to be added here, and they need to be taken very seriously:
(A) Tennessee state law is highly specific about getting permission to collect from the property owner——not the guy who is renting the property from the owner and not some kid playing in the front yard or some unknown granny sitting in her rocker on the front porch of a house on the property. You have to get permission from the legal property owner. A person also needs to consider the problem of mutual and divided ownership of property. For example, two brothers may jointly own a parcel of land——and you would need to get written permission from both brothers——especially in situations where the two brothers do not get along with each other. For example, one brother could give you permission to collect on this land, and the other brother who does not want you on the property could order you to get off his land with AR-15 rifle in hand——-if he finds you there.
In some parts of Tennessee, particularly on the Cumberland Plateau, many small and large tracts of land involve divided rights. For example, a homeowner may own the small tract of farmland his house, barn, and other outbuildings are built upon, but a large timber and mining company may own the timber rights and mineral rights to that same small tract of farmland and all of the land surrounding it. I should also add that such overlapping ownership rights are not at all obvious to any person just standing in the front yard of a rural home on the Cumberland Plateau. I have seen instances where a person would intuitively swear:
No way man!!! There is no possible way a nice house and little farm like this could be owned by anyone other than just the farmer alone.
However, a quick check of the official deed records for the property at the county courthouse quickly revealed that the timber and mineral rights to all of the farmer’s property, including the land beneath his house, was owned by a private sector timber and mining company. On the Cumberland Plateau and in some other areas of Tennessee, a person has to check with the county Register of Deeds to identify such mutual-ownership situations. What does a person do about permission to collect in such a complicated case of land ownership? Most likely, they would need to get permission from all current ownership parties listed in the deed records. In complex and cross-cutting land ownership situations such as this, it may be necessary to consult with an attorney licensed to practice law in Tennessee.
Another key issue is knowing where the officially surveyed property lines are for a particular tract of land. Even when you have written permission to collect from a property owner, if you accidentally stray outside their property lines and collect artifacts there, you can be arrested for collecting without permission on the next door neighbor’s private property. Sometimes—unbeknownst to an artifact collector—that land next door may be federal, state, or local government land that is not well fenced, posted, or otherwise marked as government land. Collecting on such lands without written permission, even if your straying was just a simple accident, can get you arrested, prosecuted, fined, and/or imprisoned.
(B) Digging for artifacts on private property with the property owner’s permission is legal in Tennessee. Once again, although the law does not specifically state this, it is best to get that permission in writing. However, it is not a good idea to dig for artifacts in Tennessee for two very good reasons:
(a) Digging for artifacts without a grid system, without three-dimensional spatial control (using digital surveying instruments), and without appropriate archaeological recordation destroys the unique story of the human past written in the soil on an archaeological site. Sure. You may get a great artifact out of it, but no one else will ever be able to read the rest of the ancient story written in the square meter of soil surrounding that artifact. Why? You churned and otherwise disturbed the soil within that space with your shovel, handpick, or grapefruit knife.
What is that like, and how does it erase? It is like having a stranger cut an 8-inch-diameter circle out of the center of a page in your daughter’s high school history textbook, and your daughter has a big test covering that page tomorrow in class. Because that portion of the page is missing, your daughter flunks her history test and gets chewed out by her teacher because she could not study that page in her textbook. It had a big hole in the middle of the page.
You see? It is not all about you and an ancient object you want out of the ground. Your digging behavior can and does hurt other people and the story of the past written in the soil—and it hurts them forever. The story written in the soil that you erased with your digging is gone forever—and it can never be read by any person in the future. Never. Ever.
(b) Digging for artifacts, even with written property owner permission, can still land you a fine and/or imprisonment——with a misdemeanor conviction or even with a Class E felony conviction——if you encounter a human burial during your digging or you are digging in a stone box burial, a prehistoric mound, or any other material culture structure or landform that could be legally construed as being a cemetery monument in Tennessee. By law in the state of Tennessee, ancient Native American graves have the same legal protections as the grave of your recently deceased Aunt Julia. (See the Tennessee grave and cemetery laws in the Tennessee Code Annotated).
Even if encountering buried human remains or a burial monument (like a stone box grave) was just an unexpected accident, the authorities are likely to operate on the legal presumption that you were intentionally disturbing the buried human remains and/or defacing the monument to find and take home any artifacts associated with them. Sure. You could claim hitting a human burial was just an accident——and maybe it really was just that——an accident. But hey, you collect artifacts——many members of your local community understand that you are a well-known artifact hound——and to the investigating police officer——the optics of the situation look bad in the field——really bad with all of those random holes you put in the ground on your archaeological site. The policeman is going to report what he observes and hears in a written report, and the courts will consider all of that in their deliberations——and it can go really badly for you——really badly. You may end up with a Class E felony conviction if you treated the human remains in a burial with disrespect that could be legally construed as abuse of a corpse.
Therefore, the best policy with regard to digging for artifacts in Tennessee——even with written permission from a property owner——is plain and simple. Be considerate of the ancient story written in the soil and protect yourself from legal trouble by avoiding digging for artifacts entirely. Just do not do it. Future generations of Tennesseans will thank you for it, and you will be making a wonderful contribution to Tennessee archaeology in an age when archaeological sites are quickly disappearing as a result of illicit digging and property development.
(5) Finally—just for fun—some professional archaeologists in Tennessee have told me that private property owners refuse them permission to do archaeological research on their lands more often than they grant them permission to do so. Up until last summer, I had never encountered that problem.
The best way for a professional archaeologist to get landowner permission is to approach them in the same manner as that well-known master of social interaction and chivalry: Sir Budlowe Brown. Below is a photograph of our Pembroke Welsh corgi (Sir Budlowe Brown) striking the correct pose for requesting permission to perform professional archaeological research on privately owned land in Tennessee. Who could turn down that face? I am not kidding about this. If you own a Pembroke Welsh corgi, the property owner may very seriously ask for your dog’s autograph in exchange for his permission. Be sure to carry an ink pad and paper with you for this purpose.
Unfortunately, when I received my first field research turn-down in a most unexpectedly angry, vicious, and truly puzzling manner by one private property owner last summer, I did not have Sir Budlowe Brown with me. But yes. You are right. This whole section was just a clever excuse to introduce you to the cute little canine that spreads his shed fur across our house floors like a second layer of carpet; claims Buckingham Palace is his true home; and constantly sounds a warning:
THE FAMINE BEGINS TOMORROW—AND I NEED FOOD NOW!!!
Truthfully, unlike our last Pembroke Welsh corgi, a highly intelligent and thoroughly obedient English gentleman who worked at our local hospital as a Certified Therapy Dog, Sir Budlowe Brown is damned near worthless. Despite regular exercise, lots of gentle love; high-quality food; formal obedience training; and free run of the house, sleeping, loafing, and begging for food are his three major activities. He is willful, stiff necked, disobedient, and absolutely convinced that he is the Alpha Dog over all of both “Dogdom” and “Peopledom.” He cleverly steals food from our plates when we are not looking, and he implements strategic ruses to draw our attention to elsewhere spots in our house so he can then sneak behind our backs into other rooms with wastebaskets that contain food items. We have thought about “taking him back to Carthage, Tennessee, where he was born” numerous times over the past 11 years. But just like the beautiful white horse in the movie Sea Biscuit, we keep him around because “he is still good to look at.”
How ’bout it?
Update on May 23, 2020: I am sad to report that Sir Budlowe Brown (a.k.a. Buddy Brown) died at the age of nearly 13 years in dog years (about 91 years old in human years by one method of calculation) on the evening of Sunday, May 10, 2020. His death was sudden and quite unexpected, and it came as a result of a brief illness——-probably a cardiopulmonary illness.
The members of our family are all very sad and grieving, and we will be doing so for a long time. I think you will understand why when you see the following photograph of our sleeping daughter back in her teenage years:
Sir Budlowe Brown about to Fall Asleep on Our Snoozing Daughter’s Head
When Sir Budlowe Brown was just a puppy, our daughter selected him from a huge population of Welsh corgi puppies in Carthage, Tennessee. The two of them were extremely close from the very first, and Buddy immediately imprinted on her like newborn ducklings do on their mom. In Buddy’s mind, our daughter was “My Momma for Life.” How close were they throughout their lives? It was always abundantly obvious that Buddy’s greatest desire in life was to find some harmless way to merge his own DNA with our daughter’s DNA so they could live together forever as a single, fully-united being.
That kind of love between human beings and dogs dates far back into prehistoric times. I recall a phrase from some item of media about the very first relationship between dogs and humans that began far back in human prehistory:
…and a few wolves cast their lots with men.
That phrase brings a tear to the eye, but in our family, we have long suspected that this ancient relationship began in quite another and more innocent way. A female wolf, here and there, died in ancient times and left behind several pups with just the right genetics for bonding with humans. In different geographic places, an ancient hunter-gatherer, here and there, along with his children, found the surviving pups, and the children asked the inevitable question:
Dad—they’re so cute—can we keep them?
Dad said no at first——because he knew the natural ways of wolves. The children begged more and more, and dad eventually and very reluctantly gave in. The children loved the pups deeply, fed them well, and raised them with all of the love and closeness they could muster. The wolf pups bonded socially with these human beings, and a long relationship between human beings and dogs began.
Well, anyway, that is our family fantasy about how it all began between dogs and humans in ancient times. Eventually, modern archaeological science and zoology may have a different and more definitive story to tell about how this ancient relationship began. However, as we sit here and grieve over our loss of Sir Budlowe Brown, we will stick with our family fantasy about how the long relationship between human beings and dogs began. Just call it home-bound love and sentimentality.