The XYZ Affair
by Lewis B. "Indiana" Smith
Here is some information that you could use to approach a Senator or Congressman so as to ease the plight of arrowhead hunters nationwide.  I've organized this into two parts:  an overview of the controversy around reservoir collecting, and a copy of an editorial that I wrote for the Surface Hunters of Texas Newsletter, Vol IX, no. 3 (Nov-Dec 1999).  I warn you up front, this is gonna be a BOOK, so I may have to break it down into several E-mails.

Texas and most of the Southern United States are dotted with man-made
reservoirs, created by damming up large rivers and flooding their basins.
Every time a reservoir is filled, hundreds (sometimes thousands) of
archeological sites are permanently inundated.  The effects of being
permanently flooded on an archeological site are immediate and severe.  A
small portion of the sites on a given reservoir will be located and excavated 
by salvage archeologists prior to inundation, but many go completely undiscovered. (Example: On lake Tawakoni in East Texas, salvage archeologists discovered five sites and excavated two.  Local collectors now
know of over 200 sites located along the shoreline of Lake Tawakoni.)  Once
the reservoir fills, the sites (in shallow water especially) are effectively
destroyed.  Anywhere from three to ten feet of topsoil is quickly eroded
away, and artifacts from different time periods are washed together and
mixed up, losing the stratigraphic integrity that is so critical to
archeological interpretation.  In short, inundated sites have been so severely compromised that their archeological value has been reduced to practically nothing.  Most archeologists and reservoir managing authorities used to know this, and as a result, public collecting of artifacts from lakeshores was widely tolerated.  It was a win-win situation - collectors enjoyed their hobby in a way that did not damage or destroy intact archeological sites, and thousands if not millions of artifacts that would otherwise be lost forever, washed into the silt, were recovered and treasured.  Many found their way into museums; others are still treasured by collectors today.
However, in recent years, since the passage of the Archeological Resources Protection Act of 1979 (ARPA), that has changed for the worst.
Collectors who attempt to remove artifacts from reservoirs, especially those
controlled by the Corps of Engineers or the Tennessee Valley Authority, are
harassed, ticketed, fined, and in some cases imprisoned.  So the artifacts
continue to wash away, the sites continue to be destroyed by erosion,
knowledge is lost forever, and NOBODY GAINS ANYTHING.  In one recent case, a prosecuting District Attorney told a relic collector who was being sentenced "What you and your friends did is no different than digging up Arlington National Cemetery and plundering the graves for the jewels!"  This because they were caught collecting on a CAMPSITE which contained NO BURIALS, that had been under the waters of a local reservoir for 25 years!  If the site was so important, why was a lake built over it?  Why was it allowed to wash away for 25 years with no attempt made to conserve the artifacts that were being eroded out of the lake bottom and shore?
Thus the current state of affairs is that collectors, shut off from
non-destructive collecting on public land, have turned to digging up sites
on private land - a totally destructive practice that forever wipes out the
archeological sites there!  It's a difficult choice - do what is ethically
right, and break the law, or do what is ethically wrong, but remain legal.
The whole dilemma could be ended by simply amending the ARPA to 
exempt from protection sites that are permanently inundated by flood waters.  Tens of thousands of artifacts would be made available to public collection -
artifacts which are never going to be excavated or studied by professionals
anyway - and countless sites on private land would be protected from the
ravages of "pothunters."  This is a scenario in which EVERYBODY wins. 
It's not as if ARPA was intended to permanently shut down ALL collecting on Public Lands - in the congressional debate surrounding passage of the bill,
it was flat out stated that managing authorities could removed
compromised/destroyed sites from ARPA protection by a simple declaration.
Another provision states that "no penalty shall be assessed under this
section for arrowheads found lying on the surface of the ground."  The
intent of the law is clear - it is the current interpretation that is awry.
The situation will not be corrected until Congress amends the law so that
this erroneous interpretation is permanently disallowed.  Thousands of
collectors will be deeply grateful if someone had the courage to simply
amend this 23-year old law.

An editorial that I wrote for the Surface Hunters of Texas Newsletter
Vol IX, no. 3 (Nov-Dec 1999):

Two of our former members and an associate were busted for arrowhead
hunting at Pat Mayse Lake, Just north of Paris, TX, earlier this year.  They
have given me permission to tell their story as long as I do not used any
names . . . I will refer to them here as X, Y, and Z.

These three hunters . . . had no idea that the Corps was looking for a
case to prosecute.  They put in at a small boat ramp and went directly
across the lake to a low sandy island [normally submerged, exposed by low
water].  There they found a profusion of flint chips and began grubbing with
their hands, using no tools of any sort, just feeling for pieces of flint in
the sand.  They began finding points right away, and as the day progressed,
Z, whose boat they were in, backed his boat up to a shallow part of the site
and used the prop to blow some of the sand off the site.  By day's end, they
had between thirty and forty whole points, plus numerous broken pieces and
pottery shards.  At the end of the day's hunting, they pulled back up to the
boat ramp, where eight Corps of Engineers rangers forced them to empty their pockets and issued a citation.  A few days later, the three men were
contacted and informed informed that the charges against them had been
upgraded from illegal removal of artifacts to illegal excavation of an
archeological site, since one of them had used the boat prop to remove the
top layer of sand.

Here the hammering began.  Z, whose boat they had used, saw his boat,
motor, and trailer confiscated (he will never see them again, apparently).
All three had to pay a $1400 "repatriation" fee (this is what it cost to
"conserve" the site they had "destroyed"), and each are out about $6000 in
legal fees [later, each one was sentenced to one year's probation].  X told
me that this represented about 1/4 of his annual income BEFORE he had even been sentenced.  Since they were caught "red-handed", all three men pled guilty when they appeared before the judge, and should be sentenced shortly after January 1.  They could still face penalties as high as $25,000 in
fines and up to a year in prison, although the actual sentence will
hopefully be considerably less.  Since X had received a warning citation a
year earlier on Lake Proctor, he was told that he could either turn over all
artifacts ever removed from any Corps of Engineers lake, or have his entire
collection confiscated.  He turned over roughly 1,000 artifacts he had found
over a six year period, gutting his collection and losing most of his finest

X was informed by the DA that it was the removal of sand from the site
that caused the charges to be upgraded, and that if a single scrap of human
bone had been found in the detritus they tossed aside, all three of them
would be facing felony charges and looking at jail time.  As it is, I
suppose they are supposed to feel grateful that the government chose to
punish their heinous crime so lightly.


This case sums up in a single package the fight against pigheaded
bureacratic stupidity that I have been fighting for about twelve years now.
  The site involved had been underwater for about twenty years.  The
stratigraphic integrity of the site has long since been destroyed by the
action of waves and wind.  Where has the archeological community been while this site quietly eroded away for the last twenty years?  WHy have there not been surveys and excavations and calls for the lake to be lowered until work on this precious archeological resource could be completed?
When a reservoir is scheduled to be build, the excavations done in advance
are called "salvage archeology" for a reason.  Once the lake is filled, the
site becomes archeologically WORTHLESS.  The artifacts are moved around, the topsoil displaced, and modern trash becomes mixed in with prehistoric debris.  In short, the artifacts found in the waters of our nation's many reservoirs are not a real archeological resource any more.  What X, Y, and Z  took were artifacts that no one else wanted.  Even the Corps of Engineers, for all their propaganda about preserving and conserving sites, made no move to protect this site in any way, except to destroy the lives of three good men whose sole "crime" was a real interest in the preservation and
conservation of the past.
Laws exist to protect the rights and property of our citizens, and to
keep their constitutional rights from being infringed.  Those who take or
harm the lives and property of others, or infringe upon their constitutional
rights, are defined as criminals, and punished for their actions.  Are X, Y,
and Z criminals?  They did violate  the letter of the law, although the law
in question was never intended to protect sites that are already destroyed.
They stole no one's property (the 1500 year old Indians probably cared as
much about their tools as we will about our screwdrivers and wrenches once
we are in our graves), they harmed no one, and they hurt no one's
constitutional freedoms.  While I am not acquainted with the man whose boat
was taken, the other two are men I have known and respected for years -
decent, hardworking Christian men who share our love and respect for
America's first inhabitants and enjoy collecting the tools they left behind.
These three men have been humiliated, crushed, and all but broken by our
legal system for actions which hurt no one, damaged nothing, and conserved
artifacts which would otherwise still be washing around the lake bed,
serving no purpose and doing no one any good.


There is something more sinister here than the misapplication of a poorly
written, well-intended federal law.  I am convinced that the ongoing
campaign my the U.S. Army Corps of Engineers against the private collection
of artifacts from their reservoirs is part of a deliberate propaganda
campaign to divert public attention from the Corps' own wanton destruction
of these sites.
FIRST, when a  reservoir is filled, all sites that are submerged by the
waters are then destroyed.  Topsoil melts away, sometimes as much as ten
vertical feet of it, and lithic material gathers into pockets and folds in
the clay.  On deep sand sites, artifacts drift in the shifting sand, and may
move 100 feet or more from where they were originally deposited.  By a
conservative estimate, a fair-sized reservoir like Pat Mayse lake will
submerge or erode over 200 archeological sites.  A larger lake on a major
river - like Lake Wright Patman in NE Texas - may destroy as many as 2000
sites.  While federal law requires that salvage archeology be done on these
reservoirs, the fact is that for every five sites found by survey, five more
are unreported.  (The archeological survey done on Lake Tawakoni located
five sites and excavated two.  One private collector  told me he knew of
over 200 sites along the shores of this lake.)  Then, of the sites found
survey, only the "most significant" are excavated.  The rest are simply left
to be washed away.  By filling a single lake, the Corps of Engineers
completely destroys more archeological sites than a dozen collectors could
in a lifetime.
SECOND, lake collecting was tolerated for years by Corps personnel who
understood the true intention of the Archeological Resources Protection Act
and other federal and state antiquities laws.  Many old time arrowhead
hunters can share stories of how Corps personnel told them to have fun
arrowhead hunting, find a bunch, just don't dig, etc. Collectors were
invited to State Parks to give talks on the area's original inhabitants and
their tools.  Everyone knew and understood that surface collecting off
eroded and destroyed lake sites hurt nothing and helped conserve artifacts
that no one else had any interest in.  In the last fifteen years, this
attitude has changed.  Those who care enough to collect and preserve the
past are characterized as criminals and "thieves of time".  Part of this is
due to pressure on our politically correct Congress by Native American
groups, and part is due to sheer frustration on the part of the
archeological community.  They cannot stop the Corps from building lakes,
they can't stop community development, they can't stop highway construction, and they can't stop agriculture (all of which destroy more artifacts and sites every year than all the collectors in America put together).  So they focus on the one group that has the least political clout, blame us for
everything, and try to shut down our hobby completely.  The Corps is
delighted to go along, because no one holds them responsible for the
thousands of archeological sites that they destroy with their lakes every
year. One collector has suggested to me a class action suit should be filed
to hold the Corps of Engineers as accountable for the destruction of
archeological sites as they would seek to hold collectors like X, Y, and Z.
They might feel a little less protective if they were having to pay out as
much for site destruction as collectors are being forced to pay for artifact


In the short term, not much.  ARPA enforcement on Texas reservoirs
remains spotty and haphazard.  Even on Corps of Engineers lakes, only about
one out of ten collectors will ever be busted.  But the constant threat of
harassment, fines, and imprisonment is nerve-wracking and distracting,  and
it is hardly worth if for any casual collector to put themselves through.
In short, the wisest course for all surfaace collectors is to grit your
teeth and stay off the reservoirs, especially those controlled by the Corps.
It's just not worth the risk.
In the long term, there is hope, but it will only come with an amendment
to the Archeological Resources Protection Act of 1979 (PL 96-95).  The law
clearly states that was originally passed to protect archeological sites and
resources on federal land, and to foster increased cooperation between
professionals and collectors.  ARPA was not originally intended to curtail
surface collecting: Sect. 7a (3): "No penalty shall be assessed under this
section for the removal of arrowheads found lying on the surface of the
ground."  In the congressional debate, it was stated that sites destroyed by
erosion - Corps of Engineers reservoirs were specifically mentioned here -
could be removed from protection by their managing authorities and opened to collection by the public.  The managing authorities  of these lakes - even
lakes that are more than 50 years old - have not done so!  They will not
unless they are made to.  Here's a good text for a proposed amendment to

"Sites located below the permanent high water mare of artificial
reservoirs, having been exposed to constant erosion by wind and water, cease
to constitute a valid archeological resource.  All sites that have been
submerged for more than 5 years are hereby removed from protection under
this Act.  All sites located above the high water mark and undisturbed by
erosion are still subject to the full protection and penalties of this Act
as described in sections 6 and 7.  Collectors may be asked to share
information on the artifacts they recover from such sites with the office of
the state archeologist with no penalty or fear of confiscation."

Such an amendment would leave provisions in effect to punish the grave
robber and looter while protecting the true, dedicated surface collectors.
It would not effect the punishment of looters in nationa parks and Anasazi
ruins at all, and these are the criminals the law was originally targeted
at.  Getting such an amendment passed is the next hurdle.  It must be
introduced by a member of the House or Senate.  Who out there is connected?

It would be fairly easy to get through as a rider on an appropriations bill
or something, and it is not an issue that would attract a great deal of
controversy or debate. - but it must be introduced, which means that a
member of Congress must be found to sponsor it.  One way that it could be
rendered more attractive to a politician - especially a budget hawk - is
this:  How much money is the government spending each year to track, collect evidence, arrest, and prosecute artifact collectors on these lakes?  Are
there not wiser things on which the government could spend its money?  I
figure the XYZ case alone probably cost the government several hundred
thousand dollars to prosecute.
If there is anyone out there that wants to help fight this battle, let me
know.  Get in touch with your congressman or senator, especially if you know them personally.  Argue the case and make your point civilly and eloquently.
Let them read this newsletter!  Working together, perhaps we can bring
about a change.

Lewis B. "Indiana" Smith

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