Due to many questions posed by collectors in our state, we’re going to look at the laws as they affect hunting for points, both on the state and federal level. Some of the laws are very plain in the way they are written, while others are more complex; it’s worth noting that some of these laws haven’t been fully tested in court cases. All laws are subject to interpretation, so don’t take anything here as legal advice in any way.
Pertinent laws at the federal level are mostly contained within ARPA (Archeological Resources Protection Act of 1979) and the companion set of regulations, 43CFR7. A full reprinting of the complete statute would be far beyond the scope of our newsletter, however the short version is that no collecting of archeological specimens is allowed on lands owned or controlled by the United States government. A short discussion of Section 6 of ARPA is in order however, as much confusion exists in the collecting community.
Section 6 states:
(a) No person may excavate, remove, damage, or otherwise alter or deface or attempt to excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under section 4 of this Act, a permit referred to in section 4(h)(2) of this Act, or the exemption contained in section 4(g)(1) of this Act.
(b) No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange any archeological resource if such resource was excavated or removed from public lands or Indian lands in violation of- (1) the prohibition contained in subsection (a) of this section, or (2) any provision, rule, regulation, ordinance, or permit in effect under any other provision of Federal law.
(c) No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision,, rule, regulation, ordinance, or permit in effect under State or local law.
(d) Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (1), or (c) of this section shall, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both: Provided, however, That if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $500, such person shall be fined not more than $20,000 or imprisoned not more than two years, or both. In the case of a second or subsequent such violation upon conviction such person shall be fined not more than $100,000, or imprisoned not more than five years, or both.
(e) The prohibitions contained in this section shall take effect on October 31, 1979 [the date of the enactment of this Act].
(f) Nothing in subsection (b)(1) of this section shall be deemed applicable to any person with respect to any archaeological resource, which was in the lawful possession of such person prior to October 31, 1979.
(g) Nothing in subsection (d) of this section shall be deemed applicable to any person with respect to the removal of arrowheads located on the surface of the ground.
So as we see from the Act, while “no person” without a permit may excavate or remove any “archaeological resource” from federal lands, the criminal and civil penalties contained in subsection (d) may not be enforced on any person picking up an arrowhead from the surface. Removal of the artifact from the site may, however, result in arrest for theft of government property.
On the subject of artifacts and sites located on state property, the law in Mississippi could not be more clear. Mississippi Code 39-7-11 states:
(1) All other sites, objects, buildings, artifacts, implements, and locations of archaeological significance, including, but expressly not limited to, those pertaining to prehistoric and historical American Indian or aboriginal campsites, dwellings, and habitation sites, their artifacts and implements of culture, as well as archaeological sites of every character that are located in, on or under the surface of any lands belonging to the State of Mississippi or to any county, city, or political subdivision of the state, are hereby declared to be Mississippi landmarks and are the sole property of the State of Mississippi. Such sites may not be taken, altered, destroyed, salvaged or excavated without a permit from the board or in violation of the terms of such permit.
State law also makes it illegal to knowingly disturb human remains on private property without a permit from MDAH. In addition, if human remains are encountered, all ground disturbing activity must cease and the Sheriff of the county involved must be notified immediately.
State Laws Regarding Collecting On Private Lands
This is the area we’re most interested in, as most of us know the vast majority of collecting takes place on private land. Mississippi grants almost exclusive control of sites to the landowner, as long as burials are not encountered. Written permission from the landowner is required by law in our state to hunt for artifacts. The following paragraphs are selected sections of the Mississippi Code as it applies to collecting without permission.
§ 39-7-31. Entry upon land of another to deface, remove or destroy archeological relics or sites.
No person, not being the owner thereof, and without the written consent of the owner, proprietor, lessee, or person in charge thereof, shall enter or attempt to enter upon the lands of another and intentionally injure, disfigure, remove, excavate, damage, take, dig into, or destroy any historical structure, monument, marker, medallion, or artifact, or any prehistoric or historic archaeological site, American Indian or aboriginal remains located in, on or under any private lands within the State of Mississippi. No person without a permit from the board, and without written permission of the landowner, shall intentionally injure, disfigure, remove, excavate, damage, take, dig into, or destroy any prehistoric or historic American Indian or aboriginal burial.
§ 39-7-35. Penalties for violations of chapter; finder’s fee for arrest and conviction of violator.
(1) Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than five hundred dollars ($500.00) and not more than five thousand dollars ($5,000.00), or by confinement in jail for not more than thirty (30) days, or by both such fine and confinement. Each day of continued violation of any provision of this chapter shall constitute a distinct and separate offense for which the offender may be punished.
(2) The board at its discretion may grant a “finder’s fee,” not to exceed five hundred dollars ($500.00), for the arrest and conviction of any person in violation of this chapter.
In The Water…
So far it’s been easy …but creek hunting in MS is not specifically addressed in the laws. While the state does claim all artifacts on state land, and grants trespass rights to the stream channels of public waterways (implying state control of these areas), the disposition of artifacts within navigable streambeds remains questionable. In fact, the exact definition of a navigable waterway is outdated under MS law; however court cases in other states (including at least one Supreme Court decision) indicate that any stream that is navigable by boat should be considered navigable in law. It is illegal in MS to disturb the bed or banks of a public waterway (defined as “having a mean annual flow of not less than one hundred (100) cubic feet per second, as determined and designated on appropriate maps by the Mississippi Department of Environmental Quality”). Small streams, too small for boats, are under the control of the landowner and written permission would cover it.
While the legal situation is somewhat muddied, there is no concern voiced over creek hunting in our state. This isn’t the case in other states in the south, and Alabama is the only state in the region that specifically allows collecting of artifacts within navigable stream channels. Laws against collecting in streams in Florida are strictly enforced. Informal conversations with many members of the professional archeology community working in MS over the last couple of years has resulted in no objections to this form of collecting, as most readily concede displaced artifacts washed into streams have minimal archeological value except for pure distributional data.