Forrest Fenn Treasure Reveals Holes in Archaeology Laws
Despite a lack of laws surrounding historic resources, state archaeologist likes framework

by Avery Martinez

Across international headlines in the past weeks was the announcement of the discovery of the Forrest Fenn treasure. The legendary decade-long treasure hunt was launched by an eccentric millionaire who said he left the cache somewhere in the wide expanse of the Rockies. However, legal questions as well as facts about the treasure are open-ended and pose their own difficulties.

For Dr. Holly Norton, Colorado State Archaeologist and director of the Office of Archaeology and Historic Preservation, and assistant state archaeologist Rebecca Simon, the Fenn treasure leaves plenty of questions and highlights the lack of archaeological laws and protections in Colorado, despite the presence internationally famous sites such as Mesa Verde.

Norton wondered if some of the pieces of the Fenn treasure, rumored to be artifacts from different locations, would create problems for the person who found it. Many international laws have been strengthened over the past few years as different groups try to reclaim artifacts that have been looted or illegally removed.

“I don’t know that he has unprovenanced or inappropriately procured artifacts, but [Fenn] plays by his own rules,” Norton said.

“I wonder what kind of mess he’s landed in this person’s lap — I don’t know how much a treasure it actually is.”

Simon said that when federal archaeologists were asked about the treasure, they were vocal about how it’s been “a disaster.” Legal hurdles aside, the treasure hunters themselves have been destructive. Simon added that there was a range of impacts from the Fenn treasure hunt.

“In some ways, it’s created communities and solidarity … which are typically good things people point out about these activities,” Simon said. “But again, on the flip side — there has been some major damage by folks not paying attention to where they’re walking or taking shovels and picks where they shouldn’t be and losing their minds on different things.”

Despite the damage caused to public land, archaeological laws are hard to enforce in Colorado — which was suspected by many to be the location of the treasure. And while Fenn’s treasure doesn’t clearly fall into archaeology, it highlights the ambiguity of state law on archaeological resources.

Often the lack of laws in Colorado frustrates archaeologists, Norton said. Laws that guide archaeologists exist, and her office’s primary goal is to make sure that people are in compliance with the laws that govern their projects.

Norton said what frustrated her personally was many of the state archaeology laws do not have teeth. For example, the state archaeological law, if violated, results only in a $500 misdemeanor, “which is not a huge deterrent to some of the activities that people do,” she said. “If you’re illegally pot hunting somewhere, you are selling artifacts for 10 times that amount — that $500 is just the cost of doing business — which is only if we prosecute.” Pot hunting describes someone searching for artifacts solely for their monetary value and personal gain, rather than their cultural significance.

Prosecution itself is a challenge, Norton said. When it comes to pressing charges at the state level, the office rarely gets into prosecution. However, prosecution does happen at the federal level for actions on public lands. Federal laws carry larger fines, Norton added, such as the Archaeological Resource Protection Act from 1876, which includes $25,000 fines for defacing cliff dwellings or pot hunting.

“The problem is, from watching colleagues go through these things, it’s really quite arduous,” Norton said. “Especially if you’re dealing with something like relic hunting or looting, which go on over several years.”

In these cases, law enforcement usually must do intense investigations into these operations, and items must be proven to come from state property, Norton said. As a result, the investigations are lengthy.

Communities can be torn apart by these activities, Norton said. A few years ago, a ring of pothunters operating in the Four Corners area were investigated and prosecuted. Some members of the ring were from that community, and people were upset with the federal government for harming those people. She added that in some cases, these finds included human and elder remains and ancestors.

“There are a lot of emotions that go into the prosecution of crimes against cultural and historic resources,” Norton said. “It’s a pretty tough thing, but I don’t think anyone ever enters into it lightly.”

In addition, there are not as many protections for archaeological resources as people might expect, Norton said. Calls often come to the office about a project or type of activity affecting an archaeological area. People ask if it can be stopped, and the answer is often no.

For private property, despite seeming “icky to the rest of us,” people are allowed to remove and sell archaeological artifacts, Norton noted. Private property and other property laws are very strong in this country, and people are very protective of constitutional property rights. “So, there’s not a lot of ability — or will — to impinge on those sorts of laws.”

For public property, while still vague, archaeological laws are more present, she said. At the state level, major pieces of legislation are the Archaeological and Historical Resources Act and the Colorado State Registers Act, Norton said.

The historical act gives Norton’s office stewardship authority over archaeological and paleontological sources on public land statewide. However, this does not grant management authority. Norton said the office interprets the law to also mean city, county and any sort of municipality, but typically this does not include unincorporated county areas. “The law is a little bit vague, and each municipality interprets it a little differently.” As a result, some municipalities interpret the law as giving them authority to only invite in Norton’s office.

The State Register Act says in part that other state agencies must pay certain attention to the historical resources which are managed and preserved in their undertakings, and to work with her office, Norton said.

“The good news is that we’ve done a lot of relationship-building over the last several years with other state agencies, and in Colorado, because we have such a strong public lands ethic, most people and land managing agencies recognize the need to think about cultural and historic preservation work when doing their projects,” Norton said.

So, while plenty of things can “fall through the cracks” Norton said she feels her office is addressing the vagueness of current laws by relationship-building and becoming a resource to others and helping with issues that arise.

Norton’s “wish list” for legal power in terms of archaeology would be to revisit and strengthen the State Register Act. “I think that would be something great, that we could have more incentives and guidance for state agencies to list their properties and strengthen compliance, so they prioritize those responsibilities. I think that would be a wonderful thing.”

However, she believes that with how Coloradans prize public lands and historic or cultural resources, “we can probably do a lot more work within the existing laws,” she said.

In terms of Fenn’s buried treasure, the occurrence is rare in the archaeological world. Norton said she didn’t know what type of people have been interested in the Fenn treasure, but she worried Fenn might have encouraged “a bunch of yahoos to go tear up public lands.”

This article appeared in the July 13 issue of Law Week Colorado. To read other full articles, order a copy online.