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Posted by Patrick on March 30, 2005 at 18:11:49:

Historians blast legislation on wrecks, artifacts
Monday, March 28, 2005
Capital Bureau
MONTGOMERY -- Many professionals in history-related fields say they're still unhappy with the latest proposal to rewrite laws about who can legally remove historical artifacts from beneath state waters.
Identical bills were introduced in the House and Senate, and a House committee adopted a heavily revised substitute version. Both bills are in position for floor votes when the Legislature returns from spring break Tuesday.
Rep. Cam Ward, R-Alabaster, said he worked in suggestions from the Alabama Historical Commission and noted that divers made several concessions. Ward, the House sponsor, said he will be willing to consider further changes and hopes the proposal will get a floor vote in the House within the next two weeks.
Still, assessments from professionals range from tactfully negative to bluntly dire.
"We're just hopeful that the (legislative) leadership realizes that if passed in its current form, this bill would do more harm for cultural resources than good," said Brandon Brazil, a spokesman for the Alabama Historical Commission.
Brazil said interested parties met once to negotiate a compromise, and, he said, the substitute bill looks like the sponsor was trying to accommodate both sides.
Sufficient time was not spent to get to the substantive issues, said George Ewert, director of the Museum of Mobile. "It's a poor result of a flawed process," said Ewert, who also chairs the existing oversight panel for underwater cultural resources.
Glen Forest, a marine archaeologist who did dive work during excavation on the USS Monitor, agreed with divers that the current law needs work but said he's appalled by the substitute.
"It will lead to instant mechanized destruction of what's left of Alabama's resources," said Forest, who called the measure "looter-friendly."
Under current law, people do not need permits to scuba dive in state waters, according to state officials. Recreational diving permits are available but not required. Divers who are excavating, extracting artifacts or systematically looking for an object are required to obtain permits.
Divers say they were not consulted when the 1999 law was written, and their input was ignored when the commission developed rules for the permitting process.
Outspoken critic
The most outspoken critic of existing law is Steve Phillips, who was arrested for removing a Civil War-era weapon from the Alabama River at Selma. He is fighting the charge.
Phillips, who owns Southern Skin Diver Supply in Birmingham, complains that under the current law, a diver has to hire a licensed archaeologist in order to legally visit many sites, and the commission has been stingy with permits. He said he wrote for a permit three times and received no response.
"Our 100,000 divers in this state need to be able to go diving without being arrested by a rogue agency that is corrupt," Phillips said.
In the substitute bill, two of the biggest changes from current law are eliminating permits for recreational divers, which has widespread support, and shifting oversight of the remaining permits from the state archaeologist at the Alabama Historical Commission to the Department of Archives and History.
The only problem there is the Archives Department has not put out the welcome mat. "We don't have the expertise or the resources to manage that program," Archives Director Ed Bridges said.
The bill creates a 15-member Submerged Historical Cultural Resources Oversight Committee to set up guidelines for permits, volunteer reporting of finds by recreational divers and conservation of artifacts. The existing advisory panel would be dissolved.
Three politicians -- the governor, lieutenant governor, and House speaker -- would name most of the commissioners. The heads of archives, the Historical Commission and the Conservation Department would each make a single appointment.
The bill requires that three commissioners represent an Alabama-licensed and accredited dive school. Appointees for three other seats would have to be Alabama residents as well as a historian, archaeologist or artifact hunter.
Brazil said the oversight committee "could easily become collector-heavy," and he also noted that there's no guarantee any of the members would be trained historians or archaeologists.
The substitute creates two categories of violations, depending on whether the item disturbed or stolen is worth more or less than $1,500. The maximum penalties are one to 10 years in prison and a fine of up to $5,000.
Divers conceded several things to the commission in the latest version, Phillips said. They agreed to let the new bill apply to all rivers instead of only Mobile Bay, to restrict access to archaeological sites without a permit and to allow the commission to be one of three state agencies involved.
"We just want access to the public lands and waters, just like hunters and fishermen," Brazil said. He emphasized that he and other divers are not interested in removing items from shipwrecks, but rather they want to go after "isolated finds."
Other provisions in the substitute are also troubling, Brazil said. Law enforcement officials from the Conservation Department would have sole authority to enforce the law. Now sheriff's deputies, police officers and state troopers share that duty.
In several places, the bill states that items qualify for protection if they are at least 100 years old. In the United States, the generally accepted standard is 50 years, he said.
Wetsuits vs. bureaucrats
The legislative dispute at times seems to devolve into a battle between wetsuit-wearing pirates determined to plunder the state and bureaucrats bound on creating impediments for anyone who doesn't have a Ph.D.
Bridges, the head of archives who also at one time headed the Historical Commission on a temporary basis, said he hears strong arguments on both sides.
"The archaeologists say there is potentially valuable information to be gained, but we don't know what is there until we do the formal, scientific archaeology," Bridges said. "The other people are saying the archaeologists will never do the systematic work," he said because of a lack of funding and other resources.
Bridges said he has still not been persuaded by either side, though the state archives is certainly interested in artifacts that might be found. A compromise might involve setting up stricter rules for certain areas that need protection, he said.
Brazil explained the split this way: "The collector is artifact driven; the archaeologist is context driven. The context and the relationship between articles tells the story."
Many times collectors are able to identify and date arrowheads they find because an archaeologist found a similar item during a scientific excavation and was able to carbon-date nearby materials, Brazil said.
Phillips said it's wrong to leave these artifacts on the river bottoms, where they are constantly tumbled by the currents. This ceaseless motion invalidates arguments about "lost context," he said.
"It's like saying we should not ever go to the moon and observe it," Phillips said.
Collectors and artifact hunters say they're frustrated that some state officials want to exclude them. "People who love history -- they don't want them involved at all," Phillips said. Recent accusations of mismanagement at the agency further reduces his confidence in the commission.
The commission is battling aftershocks of a scathing audit issued March 18 by the state Department of Examiners of Public Accounts. The audit revealed widespread accounting problems and questionable expenditures during the last three years of Lee Warner's tenure as director. Warner resigned under pressure in August.
No permanent replacement has been hired.
Consequences of plundering
Ewert said Phillips' arrest shows that even with a strong law, people are willing to exploit these resources. Experts agree there's a lucrative market for relics.
Marine or underwater archaeology is so specialized that Alabama really needs its own professional in that field to protect its resources, Forest said.
Looking at how other states have handled the issue, he said, it would be ideal for that person -- and perhaps the state archaeologist too -- to fall under the auspices of the Conservation Department, which already has responsibility for state-owned land. Forest said that agency also has law enforcement capability with its game wardens and marine police, plus it has boats and some of the other equipment needed.
Federal law gives states the duty to preserve many of these underwater cultural resources, and there are penalties if that responsibility is shirked, Forest said.
Conservation Department officials did not return calls seeking comment.
"All you hear about is shipwrecks and all you hear about is Civil War," Robert Thrower, tribal historic preservation officer for the Poarch Band of Creek Indians. "We've been here 12,000 years."
Thrower too scoffed at the so-called compromise because it does not clamp down on professional collectors. "If that thing passes, I don't think there will be protection for anything," he said.
State waters now cover numerous archaeological sites because the Creeks typically lived near water and stream beds shift over time, Thrower said.
Artifacts of any nature belong to the state if they lie under state waters.
"These objects that are being retrieved, by definition they belong to the people of Alabama," Ewert said. Companies that extract oil from beneath state waters pay royalties, he said, and businesses that dig gravel from state lands also compensate the government.

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