Poor Sue

Lykee B. Davis GCSU 5035-1 Poor Sue The ground beneath our feet contains more than just mineral resources; fossils, and artifacts of paleontological and archaeological also reside there. In Marie C. Malaro‘s book, Museum Governance: Mission, Ethics, Policy, deals with this issue in an essay called ‘Poor Sue.’ “Poor Sue: The Realities of Protecting Archaeological and Paleontological Artifacts,” illustrates the importance of ownership rights of these fossils and artifacts through the legal wrangling surrounding the fossil of a Tyrannosaurus rex that has come to be known as ‘Poor Sue.’1 This issue has been dealt with by other nations and needs to be addressed by the United States, as well. Successful laws in the U. S. regarding ownership of fossils and artifacts in other countries could provide a model for design of a successful law. The story of ‘Poor Sue’ illustrates the complexity of ownership rights. A private commercial operation found the fossil, then bought the fossil from the land owner who happened to be a member of a Native American tribe. The fossil had been found on land that was governed by the tribe, which resulted in U.S. government involvement. From 1990 to 1993, trial cases tried to settle out the ownership rights surrounding the fossil. When the geological team first discovered ‘Poor Sue,’ they did not fully understand its significance and neither did the land owner. The conflict resulted when ‘Poor Sue’ became recognized as “the best Tyrannosaurus rex

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1

Marie C. Malaro, Museum Governance: Mission, Ethics, Policy. Washington: Smithsonian, 1994, 118.

2 skeleton yet uncovered.”2 A successful law would have to deal with overlapping jurisdiction, private land, public land, for profit exploration, and academic exploration. Malaro points out that, “Sue exacerbated a long-simmering debate on whether the government should regulate the disposition of fossils found within the United States.”3 While current laws that deal with mineral resource rights could be applied to the issue of fossil and artifact ownership, fossils and artifacts have value because of the contribution that they can make to our understanding of our natural history. When treated like a commodity, the more historically valued objects become more cost prohibited to obtain by the academic institution. Legally these items need to be distanced from being treated like a commodity; however, if all economic incentives are removed, then private expeditions disappear. Such exposition are often capable of dealing with the cost of the exploration more efficiently than the more academically oriented institutions. There are some laws in place, however, room for improvement remains. “Presently, no general federal legislation expressly protects fossils found on public lands, but under their specific legislative authorities, some federal agencies do find it compatible with their missions to regulate fossil hunting on lands under their control.4 Malaro further illustrates the manner in which the laws that are in place have not been consistently interpreted. Illustrating this point with a discussion of how it is unclear as to whether fossils are covered by the antiquities act.5 One new law that deals with all public land and clearly defines all covered objects would go a

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2

Ibid.

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3

Ibid., 119.

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4

Marie C. Malaro, Museum Governance, 119

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5

Ibid., 120.

3 long way to dealing with the present legal uncertainties surrounding fossil and artifact protection in the states. Laws governing state owned land must also be carefully read whether fossils and archaeological artifacts are protected.6 For those states that have not clearly defined the rules, particularly in terms of fossils, an overhaul of the laws would be in order. Privately owned lands often also contain fossils and artifacts beneath their soil. In many cases these private landowners would maintain the rights to these objects. Perhaps here the potential for abuse is greatest. 7 These objects may be hoarded by a land owner who does not provide access, or more tragically a land owner driven by profit motives may allow for poorly documented excavation of their land. A system that rewards private landowners who make the fossils and artifacts contained with in their properties would help to address these concerns. While Malaro spends very little time on this issue in the ‘Poor Sue’ essay private land owners could be potentially the greatest threat to the integrity of fossils and antiquities on their properties due to lack of oversight. Native American tribes are the final land holder in the United States when it comes to the issue of fossils and antiquities. Tribal land played a pivotal role in the case of ‘Poor Sue’. Indian land, which frequently is held in trust by the federal government for tribes or individual members of a tribe, presents a whole range of new problems. It is difficult to generalize where ultimate authority over fossils may rest with regard to land associated with Indian tribes.8

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6

Ibid., 122.

7 Marie 8 Ibid.

C. Malaro, Museum Governance, 122.

4 Clearly these agencies Indian and federal alike need a consistent and functional plan. Whether the oversight comes from the federal are tribal level is unimportant. What matters is that the what results is reasonable excess to important fossils and antiquities. The Baucus Bill, titled the Vertebrate Paleontological Resources Protection Act, introduced in the U.S. Congress by Sen. Max Baucus of Montana, attempted to deal with some of these issues.9 The law would have dealt with paleontological resources on Federal Lands, such resources were defined. Permits would have been required for excavations and the united states would maintain ownership of the recovered fossils. Fossils removed from public lands would have to be deposited in institutions meeting professional standards. Finally the law would have implemented legal repercussions for illegal trafficking a removal of these fossils.10 The law did not pass; however, it provides a model of what a comprehensive law regarding fossils and artifacts might look like. It defines the protected items, covers how objects can be excavated and removed, makes ownership of the objects clear, and provides for legal repercussions for violators. The law would have not dealt with state, Indian, or private lands, and therefore, would have only protected a fraction of the paleontological resources in the country. The Baucus Bill represents a starting point, and as Malaro points out it has weakness. Legislation which deals with the short comings of the Antiquities Act and its Constitutionality issues is also needed.11 These weakness of the archaeological resources regulations lies in the difficulty in defining what is protected the border the definitions the more difficult the management of the collected material. A narrow definition might leave unprotected many significant objects. 9 Ibid.,

123; and Senate Bill 3107, 102d Cong., 2d sess.

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10

Senate Bill 3107

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11

Antiquities Act of 1906, Public Law 431-433,16th Cong.

5 Managers of these resources have difficulty determining which finds merit retention and which ones do not a more inclusive law would only exacerbate the issue. Further, the more complex the law the more likely that amateurs will unintentionally violate the law. As amateurs play an important role in the determination of archaeological and paleontological objects laws need to allow for the continued existence of such work. The current legal system does little to curb commercial trade. Ultimately these laws can become costly to carry out effectively. All of these issues are identified by Malaro.12 Other countries have dealt with the issue of protection of paleontological and archaeological artifacts. UNESCO which has not been fully implemented by the United States, this law and others heavily restrict the flow of such artifacts and have not been adopted by United States as Malaro says “on the whole we remain a country more sympathetic to the free flow of cultural object a the knowledge they bring than to fostering policies, both here and abroad, that restrict this flow.”13 If the United States wishes to protect its archaeological and paleontological resources this attitude needs to change. Once an object leaves the hands of the professional and amateur researchers and falls into the hands of dealers and collectors the objects begins to be valued for their money making potential and not their historical and biological significance. As they change had they become lost to the researcher and their true value may never been know. A truly comprehensive system of laws need to be passed at the federal, state, and tribal levels. These laws need to clear broadly define both the paleontological and archaeological resources to be protected. A system for efficiently managing and which items are to be collected !

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Marie C. Malaro, Museum Governance,124-127.

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13

Ibid.,127.

6 and which are to be realized to private hands needs to be established. Objects of potential significant need to be tracked while more common items need to be cataloged and released. Amateur archaeology and paleontology need to be regulated as well as for commercial archaeology and paleontology operations. The system created needs to be manageable easily understood and cost effective. The countries biological and archaeological history belongs to its citizens not private individuals. Access to important privately owned sites need to be addressed while respecting the property rights of the individual. A system witch encourages private land owners to report finds and turns over important objects would benefit the research process. This could be done by providing final incentives to landowners who hand over finds. Restricting commercial operations would insure that the state and educational institutions can compete with commercial operations for the obtaining of significant objects without going bankrupt. Malaro begins the “Poor Sue’ essay with a discussion of a legal debated that started with a private land owner and a commercial operation. One of the lessons to be learned from this event is the significant role that both private landowners and commercial operations play in the determination of items of paleontological and archaeological importance. A functional law must deal with both these issues. To simply focus on public lands misses the bigger picture.