[MSN] Archaeologists, courts debate artifacts' value. Theft of petroglyphs raises questions of what unappraised relics on public lands are worth.

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Sun, Jun. 18, 2006

Archaeologists, courts debate artifacts' value
Theft of petroglyphs raises questions of what unappraised relics on public
lands are worth
By Scott Sonner
ASSOCIATED PRESS

RENO - In a case with ramifications for archaeological treasures across the
West, the Justice Department is asking the 9th U.S. Circuit Court of Appeals
to reconsider a ruling that freed two men convicted of stealing ancient
petroglyphs in Nevada.

"There is a good deal at stake here," said Sherry Hutt, a former Superior
Court judge from Arizona who has written books on the subject and now heads
a related program at the National Park Service.

The appellate court in San Francisco concluded in March the two accused
looters clearly were guilty of stealing the boulders with rare etchings of
an archer and bighorn sheep but that the government failed to prove two
critical elements in the case:

The artifacts on national forest land were worth at least $1,000, and the
accused looters knew or should have known what they were stealing was of
archaeological value.

The ruling "effectively provides a license to steal" petroglyphs and other
things "that clearly have intrinsic -- and often culturally important --
value, but which defy efforts to reduce that value to monetary terms,"
assistant U.S. attorney Robert Don Gifford wrote in the petition for
rehearing.

"The panel's decision effectively leaves the government without the means to
stop the needless, careless, and intentional destruction of archaeological
sites and organized and intentional theft of the valuable remains of
previous civilizations," he said.

Hutt, who manages a Park Service program under the Native American Graves
Protection and Repatriation Act, said the concerns are valid.

"Essentially, the government must prove the defendant knew this was an
archaeological resource and knew the actual scientific benefit -- which
essentially says only archaeological scientists could be convicted in such a
case," she said.

Congress passed the Archaeological Resources Protection Act in 1979, then
strengthened it in 1988 after a 1987 study found that looting and vandalism
had damaged 32 percent of known sites on National Park Service, U.S. Forest
Service and Bureau of Land Management lands in the Four Corners states --
Colorado, Arizona, New Mexico and Utah.

The Park Service alone recorded 11,000 violations nationally in 2002, but
scientists said it is difficult to know how much is being lost.

The Society for American Archaeology started a public education program 15
years ago "because of this exact problem," said Maureen Malloy, the group's
education manager. "There are so few enforcement people able to document the
problem."

The two men in the Nevada case admitted they used a winch to remove three
boulders with petroglyphs from the Humboldt-Toiyabe National Forest in
August 2003. But they insisted they didn't know they were breaking the law,
partly because no signs marked the site.

A federal jury found them guilty of theft of government property, but
acquitted them of unlawful excavation of archaeological resources. John
Ligon of Reno originally was sentenced to two months in jail and Carroll
Mizell, who then lived in Van Nuys, was sentenced to four months and ordered
to pay $13,169.

Forest Service officials believe the petroglyphs are at least 1,000 years
old, and an agency archaeologist testified they had an archaeological value
of about $8,000. William Dancing Feather, cultural resources coordinator for
the Washoe Tribe, said the tribe considers them priceless.

But Scott Freeman, a lawyer for Ligon, said such a valuation is subjective.

"With all due respect to Mr. Dancing Feather, what may be priceless to one
person because of their cultural heritage may not be priceless to someone
else," he said.

In a move criticized by the 9th Circuit panel, prosecutors chose not to
introduce an Arizona art gallery owner's appraisal as evidence. He had
estimated the boulders could be sold for $1,500 if they were in good
condition but because they were badly scarred when they were removed, their
commercial value was $800 to $900.

The 9th Circuit said under federal law, archaeological value is not the
value of the artifact itself but of all the archaeological knowledge that
goes with it, based on how much it would cost to obtain that knowledge.

"The government's choice not to introduce any evidence of 'value' within the
meaning of (federal law) unfortunately leaves us little choice," Judge
William Fletcher wrote.

"It is clear that Ligon and Mizell stole the petroglyphs. It is equally
clear that the petroglyphs had a market value," he said.

"But the government did not introduce that report into evidence, or indeed
anything else that might have served as evidence of 'value' within the
meaning of (the law), although it obviously could have done so."

David Houston, a Reno lawyer who represented Mizell, said the appellate
judges were uncharacteristically blunt in their criticism of the
prosecutors.

"The petition for rehearing is the government's way to try to heal a black
eye," Houston said. "The 9th Circuit felt as we did -- you've got a value,
so use it. Don't create this vague archaeology value in order to support a
conviction by claiming you don't have an established value."

The government said the art dealer's estimate was not submitted because it
was not credible.

"The U.S. had no admissible evidence of value other than archaeological
value," which is the only credible alternative to market value under these
circumstances, Gifford wrote in the petition.

"Undoubtedly, thieves will continue to loot public lands of artifacts for
which there is no known or ascertainable market," he wrote.

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