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by

Richard L. StroupProfessor of Economics, Montana State University

Senior Associate, Political Economy Research CenterResearch Associate, The James Madison Institute

and

Matthew BrownResearch Associate, Political Economy Research Center

Research Associate, The James Madison Institute

Policy Report #26July 2000

The James Madison Institute2017 Delta Blvd., Suite 102

P. O. Box 37460Tallahassee, FL, 32315Voice (850) 386-3131Fax (850) 386-1807

E-mail [email protected] http://jamesmadison.org

This Backgrounder was published by The James Madison Institute. Permission is granted to quote from this publication with appropriate acknowledgment.

Deciding the Future of the Past:The Miami Circle and Archaeological Preservation

Table of Contents

Executive Summary ........................................................................................11. Introduction ...............................................................................................32. The Miami Circle Challenge .....................................................................3

County and City Involvement ..............................................................5A Resolution to the Challenge .............................................................6

3. Modern Archaeology.................................................................................6Funding for Archaeological Research .................................................7The Problem of Looting .......................................................................8Economic Growth and Archaeology: A Blessing or a Curse? ............9Private and Public Archaeology..........................................................10

4. Drawbacks of the Current Approach.......................................................12The Cost of Archaeological Regulation.............................................12Supply-Side Problems ........................................................................13The Chilling Effect .............................................................................14Political versus Voluntary Solutions...................................................15

5. A Better Way: Improved Institutional Arrangements in Archaeology.... 17Using Market Incentives to Preserve Natural Resources ..................17Using Markets for Archaeological Preservation................................18Preventing Looting.............................................................................20Ensuring Diversity in Archaeology ...................................................20Developing a Registry of Artifacts ....................................................21

6. Conclusion ...............................................................................................21

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1. IntroductionBoth the city of Miami, Florida, and sur-rounding Miami-Dade County stronglyenforce historic preservation ordinances toprevent destruction of archaeological sites intheir districts. Codes are in place requiringany excavator, including a developer, to hirean archaeologist to oversee the excavation ofa potentially valuable site and to halt con-struction of the project, if necessary, toconduct an archaeological dig. The excava-tor or developer must pay for both the ar-chaeological oversight and any subsequentinvestigations.

These local ordinances are popular withindividuals who value the opportunity tolearn from archaeological sites. While thelocal ordinances are usually straightforwardand have been helpful in bringing aboutresearch and conservation in some situa-tions, they are not getting the whole jobdone. This Backgrounder explains theirlimitations and disadvantages, and recom-mends changes that would lead to betterprotection of the property interests anddevelopment rights of individuals.

The report first narrates the events fol-lowing the discovery of the Miami Circle indowntown Miami. The controversy sur-rounding that site and the apparent conflictsbetween builders and archaeologists andbetween the city and county governmentshighlight the problems of existing regula-tions.

The second section gives an overview ofmodern archaeology. It describes the strongdesire of archaeologists, historians, andothers to conserve elements of our humanpast and thereby to learn more from them. Italso describes the sometimes-conflictinggoals of archaeology and economic develop-ment.

The third section points out the draw-backs of the current “command-and-control”

approach, which forces developers andlandowners to pay for archaeological workand to halt projects in order to accommodatearchaeology, all without compensation. Theincentives that result do not encouragevoluntary cooperation or preservation. At thesame time, they often may make the devel-opment less attractive to investors.

The fourth section recommends changesto reduce the limitations and the disadvan-tages of both current archaeological prac-tices and the current legal environment, andchanges that would lead to greater gainsfrom archaeological research.

Archaeology does not have to conflictwith the interest of landowners who seek thehighest value and best use of their property.With the proper incentives and institutionalarrangements, the goals of owners, develop-ers, collectors, and archaeologists shouldseldom be in serious or acrimonious conflict.

2. The Miami Circle Challenge“Centuries or millennia after its creation, theformation still seems sacred, partly becauseof its apparent function as a temple or astro-nomical device, partly because it has sur-vived for so long, partly because it sits in themiddle of a busy, modern megalopolis,”reported the Miami Herald.1 Since this storybroke in January 1999, the formation nowknown universally as the Miami Circle hasgenerated unprecedented popular interest inarchaeology and in the often-neglectedhistory of American Indians. There has beena contentious debate about what will be donewith the Circle. Solutions ranged fromdigging up the stone formation and movingit to another site for display, to keeping itintact at its current location as the center ofan archaeological preserve.

Despite the important archaeologicalinformation that the Miami Circle maycontain, its fate has largely been decided in

James Madison Institute Policy Report No. 26 July 2000

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the political arena. Almost from the start, thecombination of media attention and publicinterest created the kind of setting thatattracts political intervention. Representa-tives from local, state, and federal govern-ment have all weighed in with proposals tosave the site.

When developer Michael Baumannbought the 2.2 acres on the south bank of theMiami River at the point where it emptiesinto Biscayne Bay, it was home to a ratherunassuming 1950s-era apartment complexclearly beginning to show its age. While theproperty and its hidden treasures remainedunchanged for decades, the surrounding areahad been turned into expensive real estate.With neighbors that include the SheratonBiscayne Bay Hotel and the Dupont PlazaHotel, it seemed a logical location for theupscale project Baumann and his team hadin mind.

The $8 million waterfront property wasto become Brickell Pointe, a commercialdevelopment that would also include twintowers housing 600 apartments. Estimates ofthe value of the completed project rangedfrom $90 to $126 million. But progress washalted when, after clearing the land, anarchaeological find brought unprecedentedmedia exposure.

While rapidly growing South Florida,and especially Miami, sometimes appear tobe bent on development at all costs, Miami-Dade County and the City of Miami passedordinances in the early 1980s to help pre-serve archaeological sites and artifacts. Theregulations require archaeological concernsto be considered before building permits aregranted. While pre-construction excavationswere being conducted at the Brickell Pointesite, archaeologists came across a surprisingdiscovery.

Like many archaeological finds, theMiami Circle is unimpressive to the un-

trained eye. The 38-foot wide circle, formedby a series of 24 holes of various shapes duginto the limestone bedrock, is clear to acasual observer. The pattern is overlaid witha series of 200 smaller holes that appear tohave no obvious pattern, and these arescattered both inside and outside the Circle.The scene is further confused by the pres-ence of a rectangular concrete septic tankthat appears to be perfectly aligned with theCircle.

Archaeologists specialize in seeingthings that a layperson overlooks in thephysical record of the past, and they foundthe site much more intriguing. While thedeveloper awaited permission to resume theproject, archaeologists John Ricisak, thefield director of the dig, and his supervisor,Robert Carr, then director of Miami-DadeCounty’s Historic Preservation Division,saw what appeared to be the foundation ofan ancient structure dug into the limestoneburied three feet below the surface. Whenthe public got news of the discovery, theo-ries about the origin of the Circle—some ofthem very unconventional—began to spreadthrough newspapers, radio programs, and theInternet.

The fact that ax blades made from mate-rial not found in Florida were discovered atthe site led some to hypothesize that theCircle was the first solid evidence thatCentral America’s ancient Maya civilizationhad reached the state in pre-Columbiantimes. Others saw the Circle as the founda-tion of an ancient solar calendar, an Ameri-can Stonehenge. Still others went so far as tolabel it the site of ancient contact with extra-terrestrials. While these theories and morewere swirling around the air waves andcyberspace stoking interest in the circle,archaeologists Ricisak and Carr came to amore conventional explanation.

They believed the site was the foundation


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for a temple or hut constructed by theTequesta Indians, a tribe that inhabited muchof South Florida before the arrival of Euro-pean explorers. The Tequestas, whose num-bers may have been as high as 10,000, werepart of what archaeologists call the GladesCulture. The area the Glades Indians inhab-ited included “a variety of wetlands: theEverglades, the large sawgrass marsh inHen[d]ry, Palm Beach, Broward, Miami-Dade and Monroe counties,” according toarchaeologist Jerald T. Milanich.2 While theTequestas thrived in this area, including theregion around the mouth of the Miami River,wars and disease brought about by contactwith European explorers devastated theirpopulation. The last members of the cultureare believed to have left the area whenSpanish colonists abandoned the state toEngland in 1763, but evidence of theirexperience has been scarce. According toMilanich, “Only a small sample of sitesremains. Even sites recorded in the 1950shave been lost to development. It is hard toimagine that early in the 20th century, whatis now a row of glitzy hotels, apartments,and shops on Biscayne Bay was shellmiddens.”3

As word spread that the Circle wasprobably of American Indian origin, savingit became a cause célèbre among environ-mental activists, school children, preserva-tionists, and American Indians. BobbieBillie, spiritual leader of Florida’s SeminoleIndians, captured the sentiment of manywhen he declared the site sacred ground.This opinion was given increased weightwhen archaeologist Carr was quoted in theMiami Herald as saying, “It’s some kind ofsacred place.”4

City and County InvolvementWhile public attention surrounding the fateof the site was growing, the city granted the

necessary permits for Baumann to resumeconstruction of Brickell Pointe. Acknowl-edging widespread public desire to preservethe Circle, Miami Mayor Joe Carollo an-nounced that plans were being drawn up tomove it to another site, which would allowarchaeologists to continue their researchwhile construction began. Dissatisfied withthe possibility that the Circle would bemoved, however, attorneys for Dade Heri-tage Trust unsuccessfully filed for an injunc-tion to prevent further construction. Even so,Baumann agreed to delay work and allowedarchaeologists to remain for several moreweeks.5

As local political leaders began to takeon an increasingly vocal role in the MiamiCircle debate, a growing rift became appar-ent between the views of city and countyleadership. Carollo, anxious for the citygovernment that has a history of financialproblems to receive the tax revenue thatBaumann’s project would generate, ledefforts to allow construction to continue.Miami-Dade County Mayor Alex Penelas,whose budget would receive less of the taxrevenue from Brickell Pointe, began to beseen as the leader in the movement to pre-serve the Circle at its current location. Thisconfrontation came to a head on February18, 1999, when the Miami-Dade CountyCommission voted 10-1 in favor of usingeminent domain to obtain the land surround-ing the Miami Circle.

Eminent domain allows the governmentto require a private landowner to sell to thegovernment if it can be proven that the landserves a public purpose. The county voted topursue a “slow take,” which would allow itto decide not to purchase the site if the priceturned out to be too high.

County hopes for purchasing the sitewere given a boost when the state cabinet6

voted to make the Circle a priority for pur-


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chase under a state land acquisition program.Under the agreement, the cabinet wouldcontribute funds for the purchase “at itsappraised value or at 50 percent of thedeveloper’s selling price, whichever ischeaper.”7 A jury trial set to begin October 4,1999, was to decide the price of the Circle.However, last-minute negotiations betweenthe two parties reached a settlement thatavoided the uncertainties of a trial.

A Resolution to the ChallengeWhile the final $26.7 million dollar settle-ment far exceeded the $8 million Baumannpaid for the property, county officials wereeager to avoid a potentially bigger hit thatthe trial jury could have imposed. “We haveavoided a runaway jury from coming backwith some outrageous amount,”8 saidPenelas. Estimates by Baumann’s appraisershad set the value of the land as high as $42million.

The $26.7 million price tag included $25million for the land and $1.7 million tocompensate Baumann for legal fees. Thestate agreed to provide $15 million and thecounty the remainder. Originally, the countycould raise only $3 million for its portion ofthe deal. But a last-minute loan from the SanFrancisco-based Trust for Public Landorganization gave it the remaining funds.The county now has two years to repay theloan.

While state and local governments weremoving forward with pledges, questionsremained about the authenticity of the site.Florida Attorney General Bob Butterworthasked, “If this thing turns out to be a septictank, we’ve just bought a $15 million septictank, right?”9 At least one prominent archae-ologist seemed to share Butterworth’s fear.Milanich, curator of archaeology at theFlorida Museum of Natural History at theUniversity of Florida in Gainesville, ex-

pressed uncertainty about the origin of theCircle and refused to rule out a more con-temporary explanation for its development.Contrary to the popular opinion that it is ofancient Tequesta origin, Milanich stated hisintention in a leading archaeology magazineto “remain skeptical until sufficient evidenceis collected to prove that the Miami Circlewas built by Native Americans one or twothousand years ago and is not a 20th-centuryartifact.”10 Following the agreement be-tween Baumann and the county, renewedresearch at the site strengthened the conclu-sion that the Circle is, in fact, of ancientorigin.

And while the state and local govern-ments were ready to pay millions of dollarsfor the land, the public itself seemed unwill-ing to put forth the substantial sums neededfor such a deal. Lack of private funds for thepurchase drew the ire of county commission-ers when they voted to approve the agree-ment. County Commissioner Natacha Millansingled out Indian tribes for failing to raisefunds towards the Circle’s purchase. “Whereare the people who say this is sacred?”Millan said. “It does not seem like any ofthese tribes or the nations have any problemswith money.”11 Six months after the causebecame widespread, the acquisition fund setup to raise money from the public for theCircle’s purchase had a balance of $4,012.12

3. Modern Archaeology“The past is big business in tourism and inthe auction rooms. The past is politicallyhighly charged, ideologically powerful andsignificant. And the past, or what remains ofit, is subject to increasing destruction.”13

This statement by two of the world’s leadingarchaeologists, Lord Colin Renfrew andPaul Bahn, says a lot about the state ofarchaeology today. It is especially true inlight of the way that markets are perceived


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by archaeologists.The code of ethics of the Society for

American Archaeology includes the follow-ing statement:

Whenever possible [archaeologists] shoulddiscourage, and should themselves avoid,activities that enhance the commercialvalue of archaeological objects, especiallyobjects that are not curated in public institu-tions, or readily available for scientificstudy, public interpretation, and display.

Ironically, this view of markets as destruc-tive has become, in part at least, a self-fulfilling prophecy. When ethical archaeolo-gists refuse to participate in markets,unethical archaeologists will. It is true thatmarkets reward those who disturb sites anddamage or destroy their value in doing so,but that need not be the case.

Since markets are not part of normalarchaeology, professionals have increasinglyturned to the public sector for support. As aresult, public institutions and public decisionmaking now determine the course of modernarchaeology. Faced with challenges such as alack of funding, the problem of looting, andthe constant threat of lost opportunities dueto economic growth, archaeologists haveincreasingly turned to the government tohelp save archaeological records. Thisreliance on government has had mixedresults.

Funding for Archaeological ResearchArchaeological discoveries do more thanprovide amusement for the public. Theyallow us to gain valuable insight into thepast, which otherwise might remain inacces-sible to us. According to Renfrew and Bahn,“The history of archaeology is commonlyseen as the history of great discoveries.”14

The 1799 unearthing of the RosettaStone in Egypt illustrates the impact a dis-covery can have on understanding the past.

The stone’s engraving that marked theanniversary of Ptolemy V’s coronation wasrepeated in ancient Greek and two Egyptianlanguages. Use of the Greek language pro-vided the information that scholars neededto decode ancient Egyptian writing.15

Because of such discoveries, archaeologyis often seen as providing a public good, andthis perspective has given rise to what iscalled “public archaeology,” in which themoney for archaeological excavations isprovided by the government for use bycertified archaeological experts. The abilityof archaeologists to use the funds produc-tively is increasing with technology.

Archaeology has become more expensivein recent times as the methods and tech-niques of professionals have become moreadvanced and thus their work more produc-tive. Techniques such as radio carbon dating,which allow archaeologists to determine theage of artifacts with much greater accuracythan ever before, adds value to knowledge,but at a cost. According to one expert:

Early in this century, archaeology was moreof a hobby for antiquarians than other peopleinterested in history. Today, however, ar-chaeology is a true science that makes use ofvarious scientific methods to locate, exca-vate, remove and date archaeological sites.Today, archaeologists use sonar, satelliteimagery, infrared imagery, radio carbondating, DNA analysis, tree ring analysis, soiland pollen analysis, potassium-argon dating,thermoluminescence dating, and a variety ofother sophisticated scientific techniques inorder to not only date objects found inarchaeological settings but also to discoverthe pests, diseases, travel patterns, tradepatterns, living conditions, political struc-ture, diet, age, migration patterns, homoge-neity, life span, and other characteristics ofthe ancient peoples.16

Given these advanced techniques, rising


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costs have increasingly become a majorimpediment to quality archaeological re-search. According to Renfrew and Bahn, “Amajor project may cost in the order of $1million, whereas a research grant from theNational Science Foundation will rarelyexceed $100,000.”17 To make up for this lackof funding, some archaeological excavationsincreasingly rely on commercial funds.

“Sponsorship has become integral toarchaeology,” wrote one commentator, “as ithas to a sport like motor racing. As themoney flowing from governments anduniversities declines, costs rise, especiallywhen the archaeology is underwater.”18 Arecent excavation in the harbor of Alexan-dria, Egypt, was sponsored in part by theDiscovery Channel. It used such recentadvances in technology as the lightingsystem used for underwater scenes in themovie Titanic. But such sponsorship rests onthe assumption that the public is willing tobuy this type of video programming insufficient quantity. And while public interestin archaeology is at record levels, this inter-est is not without controversy. Archaeolo-gists are constantly forced to answer whatBahn called “the predictable claim thatarchaeologists are nothing more than graverobbers.”19

The Problem of LootingPopular interest in archaeological and cul-tural artifacts has spurred looting of arti-facts. Once significant artifacts have beendiscovered, Bahn explained, “The choice issimple: Either we excavate and protect it, orwe abandon it to looting.”20 Archaeologistswho are usually employed by universities orgovernments and who rely on public fundingoften are financially unable to keep up withthe speed and resources of looters.

According to one estimate, the trade inantiquities that have been obtained and sold

illegally is valued at more than $l billion peryear, second only in value to the traffickingof illegal drugs.21 “The damage in manyparts of the world is so serious today that itis no exaggeration to predict that there willbe no undisturbed archaeological sites inmany places within a generation,”22 saidBrian Fagan, professor of archaeology at theUniversity of California in Santa Barbara.

Looting poses two primary problems forthe scientific study of archaeology. First,many artifacts not deemed commerciallyvaluable are destroyed in the looter’s rush toobtain the most financially attractive pieces.Second, even the artifacts that are not de-stroyed in the looting process are generallymuch less valuable to archaeologists thanthey would be if they had been excavatedproperly. When objects are hastily removed,their context is lost. Only when discoveredand recorded within their proper context canarchaeological artifacts yield the most infor-mation to professionals. This is why archae-ologists go to such great lengths to carefullyrecord information as they excavate a site,layer by layer.

The pace of looting has led many coun-tries to enact strict regulations regarding theexcavation and sale of cultural artifacts.These regulations fall into three majorcategories.1. The first, and least restrictive, is selective

controls on exports. While many objectsare allowed to leave a country, the mostvaluable are retained. This type of regu-lation can be found in Canada and Japan.

2. The second type of regulation involvesthe total prohibition of exports of culturalartifacts, which is a preferred method ofcontrol in Mediterranean countries.

3. Third, some countries go even further bydeclaring all cultural artifacts the prop-erty of the state whether discovered ornot. “For example, an archaeological site


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in the jungle of Campeche or QuintanaRoo is considered to be owned by theMexican government even if it has notbeen discovered, mapped, or excavated,”said Ellen Herscher of the AmericanAssociation of Museums.23

Nepal has banned archaeological excava-tions almost entirely. The Kathmandu Valleymay be home to unimaginably rich buriedtreasures, since the local population used tobury their valuables during repeated inva-sions over the centuries. But the fear thatsuch treasures will be looted and sold abroadhas led the government to conclude that theyshould not be discovered. “If we cannotprovide such security, it might be a goodidea not to encourage such excavation work:our treasures may be safest under 20 feet ofearth,” said the government’s newspaper.24

The countries that have taken strongmeasures to avoid the exportation of ar-chaeological artifacts from their borders areincreasingly assertive in trying to obtainthose that were taken in the past. In onerecent case, the government of Turkey wassuccessful in regaining the Lydian Hoard, afamous cache of coins, from the Metropoli-tan Museum of Art in New York. Lesssuccessfully, Greece has tried repeatedlythrough diplomatic channels to obtain thereturn of the Elgin Marbles from the BritishMuseum in London. These sections of theParthenon frieze were taken from Greece in1806 by Thomas Bruce, seventh Earl ofElgin. The Greek government claims thatthey represent an irreplaceable part of Greekculture and should be returned. But thosewho advocate keeping the Elgin Marbles inLondon point out that, thanks to the pains-taking care of the British Museum, thissection of the Parthenon frieze is in muchbetter shape than what is left in Athens.

Economic Growth and Archaeology:A Blessing or Curse?

Even if governments could eliminate loot-ing, archaeology would still face a greatthreat from the destruction of artifacts andsites by economic activities such as con-struction and agriculture.

Construction has become a major factorin the destruction of archaeological artifactsfor one important reason: The places inwhich people live and work now are, inmany cases, the same places people haveoccupied for thousands of years. Such is thecase of the mouth of the Miami River wherethe Circle was discovered. Therefore, whena construction project is undertaken in citiesthat have long histories—London, Tokyo, orRome, for example—developers will mostlikely encounter archaeological artifactsfrom cemeteries to ancient buildings.

In the United States, constructionprojects routinely encounter the remains ofAmerican Indian settlements. As a result,various laws have been developed to protectimportant finds. Federal law requiresarchaeological surveys to be conductedwhen potentially important finds are encoun-tered on federal land or during constructionprojects financed by the federal government.The laws are also designed to curb lootingon federal land or Indian reservations. Thepenalty for violating the looting prohibitioncan include prison time and financial penal-ties. At the state level, most laws focus onhow to deal with archaeological sites wherehuman remains are discovered. In suchcases, professional intervention is usuallyrequired.

On private land, where the majority ofarchaeological artifacts are found, there arerelatively few regulations regarding theirhandling. Those that do exist are generallylocal ordinances such as the ones in Miami.

Miami was one of the first local jurisdic-


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tions to place regulations on private land-owners dealing with the treatment ofarchaeological finds. In the early 1980s,Miami-Dade County enacted Chapter 16Aand the City of Miami enacted Chapter 23 oftheir respective codes, both historic preser-vation ordinances. Miami’s code, whichgoverns the site of the Circle, was intendedto “preserve and protect the heritage of thecity through the identification, evaluation,rehabilitation, adaptive use, restoration, andpublic awareness of Miami’s historic, archi-tectural, and archaeological resources.”25

The code charged the historic and envi-ronmental preservation board with theresponsibility of identifying areas within thecity that contained either known or poten-tially important historical or archaeologicalsites. Included in these designations werearchaeological zones—areas “which mayreasonably be expected to yield informationon local history or prehistory based uponprehistoric or historic settlement patterns.”26

The law requires landowners to acquire aCertificate of Appropriateness before under-taking certain activities within archaeologi-cal zones or sites.

To obtain a certificate, the landowner ordeveloper must submit an application detail-ing the site and the proposed project. Basedon the application, the county archaeologistmakes a recommendation on the scope ofarchaeological work, if any, that is neededbefore the certificate is to be granted. TheMiami code provides that

No Certificate of Appropriateness shall beissued for new construction, excavation,tree removal, or any other ground disturbingactivity until the county archaeologist hasreviewed the application and made hisrecommendation concerning the requiredscope of archaeological work.27

If no important archaeological find isexpected on the site, the board may grant the

certificate and the construction project orother activity may resume unabated. Ifimportant artifacts are found, the board maypursue several options.• It may require “an archaeological survey

at the applicant’s expense conducted byan archaeologist approved by the boardcontaining an assessment of the signifi-cance of the archaeological site and ananalysis of the impact of the proposedactivity on the archaeological site.”28

Archaeological surveys can be obtainedat a relatively low cost, usually severalhundred dollars per day, from profes-sional archaeologists. Based on thearchaeological survey, the project may beapproved or further measures may berequired.

• The board may work with the landownerto redesign a project to better preserve anarchaeological site. In some cases, build-ing over a site may be allowed if thedesign is such as to preserve the underly-ing archaeological artifacts.

• Or the board may issue the certificatewith a delay that would allow the projectto continue but only after allowing moretime for archaeological work.

Private and Public ArchaeologyOne response to the need for preservation ofartifacts on private land has been the devel-opment of private archaeological conserva-tion groups. These groups, either throughpurchase or negotiation with landowners, tryto reach agreements that will prevent thedestruction of old treasures. The Archaeo-logical Conservancy, founded 20 years ago,is the largest such group in the nation and ismodeled after a successful environmentalorganization, The Nature Conservancy. TheArchaeological Conservancy’s goal is toacquire important archaeological sites onprivate lands and then turn them into ar-


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chaeological preserves. In many cases, it hasfound that landowners are willing to donateland that is considered historically impor-tant. The organization also purchases landfrom willing sellers, with revenue generatedfrom its 16,000 members and private foun-dations.

In contrast to the local ordinances andefforts of private groups in the UnitedStates, archaeological preservation in manycountries is undertaken almost entirely byprofessionals under the regulation of na-tional governments. Partly due to increasedregulations and government funding as wellas more construction reflecting economicgrowth, the number of excavated archaeo-logical artifacts has increased dramatically inrecent years. In England, for example, asmany as 4,000 archaeological excavationstake place each year, nearly five times asmany as were conducted in 1989.

This has led to a dilemma of sorts, anembarrassment of riches. “England’s ar-chaeological archives are in crisis due to alack of storage and display space,”29 accord-ing to The Daily Telegraph. The Museum ofLondon has only 10,000 items on display butmore than a million more are in storage andnot accessible to research. Dealing withthese growing troves has become increas-ingly problematic.

In Japan, where centuries-old artifacts liebeneath most modern buildings, constructionhas also led to a rapid increase in what isknown as rescue archaeology. “Processingthe voluminous data cannot keep pace withits extraction from the ground, so there is amountainous backlog of material to bepublished,” according to Renfrew and Bahn.“The country now has a critical shortage ofstorage space, exacerbated by a fivefoldincrease in [mostly salvage] excavationsduring the past 15 years [there were 8,200 in1991, which cost 98 billion yen, about $1

billion dollars].”30

In addition to the shortage of storagespace for excavated artifacts, there is also acritical shortage of documented research onexplored sites and artifacts. A site or artifactthat escapes the bulldozer may still be lost tohuman knowledge because of inadequateresearch and documentation. This problemwill grow as the pace of construction andrescue archaeology increases. According toRenfrew and Bahn, “Up to 60 percent ofmodern excavations remain unpublishedafter 10 years, and it is reckoned that only27 percent of the digs funded by America’sNational Science Foundation since 1950have ever reached print.”31

Given the problems construction canbring to archaeological preservation, it iseasy to understand how many people canconclude that the two activities are incom-patible. But an important connection existsbetween the two fields. Construction isresponsible for finding several importantarchaeological treasures. The Miami Circleis one of the most recent examples of anarchaeological find being unearthed due toconstruction, but this type of discovery hasbeen occurring for centuries.

While Napoleon took more than 60scientists to explore Egypt and to record thefindings of his invasion, the most importantdiscovery of that expedition, the RosettaStone, was made by an army officer duringthe construction of a fort.32 Such serendipi-tous discoveries have been crucial to thefield of archaeology over the years and thusto our increased understanding of the past.To promote such an understanding, it isimportant that the interests of both construc-tion, which uncovers many sites, and archae-ology, which can provide the understandingof those sites, work together cooperativelyand efficiently.


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4. Drawbacks of the CurrentApproach

Archaeology today faces many challenges inits quest to provide a greater understandingof the past and, as a result, governmentsaround the world have passed various lawsand regulations. But many of these regula-tions have not only worsened the problemsthey were designed to alleviate but have alsocreated new problems. Governments haveimposed higher costs on society and haveoffered counterproductive incentives tolandowners and others, thereby often de-creasing the number of productive discover-ies. The political influence in archaeologyand the reliance on command-and-controlmethods help to generate these problems.

The Cost of Archaeological RegulationMany supporters of the current approach toarchaeological regulation believe that devel-opers should cover the costs of rescue ar-chaeology and other activities, since it istheir actions that threaten to destroy valuablesites. However, the impact of these costs ismore complicated than it seems. In manylocations, including Florida, what is belowthe surface of private land (other than humanremains) belongs to the landowner, unlesssubsurface resources have been sold orgiven by contract to others. This means thatthe costs affect landowners directly anddevelopers only indirectly, and the regula-tions designed to place the costs on develop-ers are generally unsuccessful in doing so.

Investment capital, unlike land, is mobileand can be moved to more valuable uses.When development costs are raised, they areshared by those who sell the land for devel-opment and the buyers (and ultimatelyrenters) of the developed property. As aresult, those who buy or rent the developedproperty pay more, and the value of land thatremains to be developed is diminished.33

Thus it is the owners of land, not developers,who pay for archaeological digs and devel-opment delays when such costs areregulated.

In the case of the Miami Circle,Baumann, like all other builders, knew aboutthe costs of hiring the monitoring archaeolo-gist, the potential for delays, and thepossibility of additional research costs ifinteresting artifacts were unearthed duringexcavation. Those influences on the cost ofproperty and the higher sale prices and rentsfor newly developed properties are all fac-tored into a builder’s calculations. Develop-ments in the historic areas of Miami-DadeCounty must provide a return as high asother potential developments nearby or elsedevelopers will go elsewhere. Again, it islandowners with property eligible for devel-opment, together with buyers and renters ofproperty in the areas affected by the regula-tion, who shoulder the burden of regulation,not developers.

Unanticipated costs paid by developers,however, are a different matter. WhileBaumann knew that delays were possible, hemay not have anticipated the long delayinvolved with the eminent domain proceed-ings that occurred. To the extent that thosecosts were not reimbursed by the county andits partners in the taking of the property, hewas forced to bear them. On the other hand,if development had resumed, a lawsuit bythe developer might have placed the burdenof the delay on the county and its taxpayers,thereby reimbursing Baumann for the unex-pected costs.

The Miami Circle episode showed thatwhen publicity and popular support for sitepreservation exist, it is possible under thecurrent rules to fully compensate developersand those who finance similar projects—even those with delays and cancellationssuch as in the Circle case. However, uncer-


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tainty remains as to possible future outcomesand this uncertainty makes development lessattractive and may even slow its progress.Only optimistic developers who expect toescape new costs will proceed as before andexpose themselves to the possible costs. Ithas yet to be determined what extent theuncertainty and the possible increased costsplace on future developers and what chillingeffect they will have on future developmentin Miami.

In addition to the unintended burdenarchaeological regulations place on land-owners, other problems may have effectsthat are less obvious but at least as importanton archaeological research.

Supply-Side ProblemsWhile much of the cost involved in archaeo-logical regulations may not be borne directlyby the developer, the regulations still en-courage behavior that is unproductive froman archaeological standpoint. The decreasedproperty values experienced by landownersand the uncertainty faced by developersmotivate both parties to ensure that noartifacts are found on their land. In that way,they can avoid the cost of an investigation.

Many archaeologists have failed torealize this incentive problem and, in fact,some have actually encouraged it unwit-tingly. According to one leading advocate ofarchaeological regulations:

So-called cultural properties are like envi-ronmentally endangered species. First, theyare non-renewable resources: once ex-hausted or destroyed, they cannot be replen-ished or replaced. Second, they are notanyone’s property and no one can properlybe said to own them . . . Hence, no one has aclaim to restitution or restriction based on analleged right (for example, right of owner-ship) to them.34

This position enjoys widespread support

among many advocates for stricter regula-tions.

However, research has documented thenegative impact of regulations designed toprotect endangered species. When landown-ers are forced to pay the price of protection,either directly or in terms of lost uses ofland, they are motivated to ensure that theydo not become the unwitting hosts of anyendangered species.35 The EndangeredSpecies Act (ESA) has frequently had animpact directly opposite of what it wasintended to have.

According to Michael Bean of the Envi-ronmental Defense Fund, who is often givencredit for writing the Endangered SpeciesAct, there is “increasing evidence that atleast some private landowners are activelymanaging their land so as to avoid potentialendangered species problems.” People dothis not out of “malice toward the environ-ment,” he said, but because of “fairly ratio-nal decisions, motivated by a desire to avoidpotentially significant economic con-straints.” This behavior, according to Bean,is a “predictable response to the familiarperverse incentives that sometimes accom-pany regulatory programs, not just the en-dangered species program but others.”36

Economists are finding evidence that Beanis correct in his concern.37

Many regulations have unintended con-sequences. As laws lean toward treatingarchaeological treasures like endangeredspecies—that is, penalizing the people onwhose land they appear—we should expectthe results to be similar. That is, we shouldexpect to see landowners and developersactively avoiding archaeological finds and,in fact, there is evidence that this is happen-ing. According to one professional archae-ologist, “Some builders even offer memoney not to find anything.”38

Even after some artifacts are found, a


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developer may not want to cooperate witharchaeologists for fear that additional dis-coveries may impose further costs. In thecase of the Miami Circle, the developer wasreported to be very cooperative with archae-ologists initially. Even though a judge de-nied an attempt to halt Brickell Pointe’sdevelopment early on, Baumann allowedarchaeologists to continue their research(albeit with restrictions) while he wentforward. As described in the Miami Herald,“He [Baumann] has been working side-by-side with Carr’s crew, clearing out the postholes, helping to get the area prepped formapping and photographs.”39 According toone of his attorneys, Baumann was leadingefforts to save the Miami Circle early on.“Up to now, the only person who has doneanything constructive to save the Circle isthe developer. Everyone talks, but no onedips into their pocketbook, other than thedeveloper,” the lawyer said.40

But while any developer might cooperatewhen costs are low, he or she has an incen-tive to prevent such a process from draggingon and thus raising costs substantially bydelaying the revenues that begin uponproject completion. It is the archaeologistsand society in general, rather than the devel-opers or landowners, who ultimately gainfrom any new discovery under the currentarrangements.41 Developers want to get theprocess over as quickly as possible to protecttheir investments. Even when compensationthrough the eminent domain process ispossible, there is no guarantee. Given thateven well-intentioned cooperation couldlead to unexpected delays or even cancella-tion of a project, a risk-averse developer willattempt to avoid such a situation. Baumann’sattorney correctly captured the predicament:“Because of the way things are happeningand the way he is being treated, he is beingpunished for being a nice guy and a good

guy and for letting them have 50 feet. Whatmotivation is there to let them go beyondthat?”42

Regulations that deny gains to landown-ers or developers from the sale of artifactsfound on their property can also increase inthe problem of looting. Without a financialinterest in their preservation, landownershave very little incentive to stop the lootingof artifacts, even on their own property. Toprevent looting is expensive, either in termsof costly security measures, or in terms ofthe perceived threat from looters who mayresort to intimidation to gain access toproperty. If, by preventing the looting, thelandowners cannot profit from the artifactsthey protect, then the costs clearly outweighthe benefits. As a result, they should beexpected to be less willing to protect theartifacts in most cases. The problem is madeworse as the regulations that penalize arti-fact ownership are made more stringent. Ifantiquities are treated in the same way asendangered species and no one is allowed toown them (as is true in many countries),then:1. The problem will be maximized.2. There will be no potential benefit to the

landowner or developer from protection.3. All costs undertaken to preserve artifacts

will be a net loss to the landowners.

The Chilling EffectCurrent archaeological regulations can alsolead to a “chilling effect” on developmentand economic growth. How large is thiseffect? It is often hard to weigh because itscosts, such as decreased economic growthand lost future development, are not easilyobservable.

But in the case of the Miami Circle, onething is easily estimated: the cost the citymust pay in forgone tax revenue from thecancellation of the Brickell Pointe develop-


14

ment. According to estimates published inthe Miami Herald,43 the project could havebeen worth approximately $90 million whencompleted. (Estimates from Baumann’sattorneys put the value of the project closerto $126 million.) This would have led to taxrevenues of about $1.1 million per year forthe city, $647,000 for the Miami-DadeCounty government, and more than$900,000 for the Miami-Dade County schooldistrict.

While the advocates of archaeologicalpreservation often say that “you cannot put aprice on the past,” it is important to considerthe cost before deciding to allow a construc-tion project to continue. While many believethe government should be responsible topreserve archaeological finds, it clearly isalso responsible to provide services such aseducation and law enforcement. Given itslimited resources, all the costs should beconsidered when making such decisions. AsMayor Carollo pointed out, “I have theresponsibility to do what is right for pastcivilizations. But I have a greater responsi-bility to the present civilization.”44

While the loss of revenues from theBrickell Pointe development may be large,some, including Carollo, expressed concernsthat other even more valuable projects willbe lost. To the extent that Miami is per-ceived as a risky place because of strictarchaeological regulations, developers maylook for alternative sites that are less likelyto contain artifacts and not subject to regula-tions. This could lead to further financiallosses for the governments that enact theregulations.

A proposed $1 billion multi-use develop-ment, One Miami Center, has featuredprominently in discussions of the long-termeffect of the Miami Circle conflict. The siteis across the river from the Circle and couldcontain even more valuable artifacts, accord-

ing to county archaeologist Ricisak. Anattorney for the project implied a chillingeffect when the Miami Herald was told thatthe potential developers would “be watchinghow this [the Miami Circle] is handled. Iwouldn’t say the project is in grave jeopardy,but it clearly gives a developer a pause. Weunderstand that the issue is there.”45

The loss of millions of dollars in taxrevenue when projects such as One MiamiCenter are delayed or canceled include partof the true cost to taxpayers of archaeologi-cal preservation under current laws. Failingto take those costs into account will inviteinefficiencies and inequities as public deci-sions are made.

While these costs come primarily interms of lost economic opportunities, thechilling effect could also lead to losses interms of archaeological discoveries. Lack offunding is a major problem in the field.Hershel Shanks, publisher of two leadingarchaeology magazines, says that “archae-ologists are, as a group, poor as churchmice.”46 But they have often benefited fromthe assistance of developers who are poten-tially wealthy. Construction threatens ar-chaeology by destroying potential sites andsimultaneously uncovering sites that mightotherwise remain unknown. By potentiallydiscouraging construction in areas that maybe archaeologically rich, regulations thushave the unintended side effect of preclud-ing important discoveries.47 Solving theseproblems and opening the door to greateropportunities for archaeological work whileminimizing the cost of doing so is a worthygoal indeed.

Political versus Voluntary SolutionsPoliticians are often forced to be moreconcerned with the impact of their decisionson election day than on results over thelonger-term future. Frequently, decisions


15

that harm the public over time result. Anequally poor track record is apparent ingovernmental decisions on scientific issuesthat are made politically, rather than byspecialists and investors with their ownwealth at stake.48 Even among highly re-spected national governments, failuresabound. Two examples are the Japanesegovernment’s decision to promote develop-ment of the fifth-generation supercomputerinstead of the personal computer, and theU.S. government’s promotion of ethanolresearch. These failures occurred becausepolitical decisions are seldom made byweighing the scientific costs and benefits.

In the field of archaeology, decision-making processes are further complicated bythe sensitive nature of issues involvingethnic or religious differences and the per-ceived injustices of previous generations. AsRenfrew and Bahn point out, “Archaeologyhas become a focal point for complaintsabout the wrongdoing of the past.”49 Thisissue plays a central role in the debate of thereturn of cultural artifacts like the ElginMarbles, which were removed from Greecewhile it was under the rule of an occupyingpower. In testimony before the state cabinet,one American Indian declared that “if noone took on the responsibility to save this[Miami] Circle and the Circle was destroyed,it would be the same as a statement that weare destroying life here on earth with devel-opment.” In a situation where such claimsare stated and accepted, cultural understand-ing is likely to take a backseat to politicalcalculations. Not wanting to be seen on thewrong side of the debate, State AgriculturalCommissioner Bob Crawford proclaimed, “Ilike Indians.” Concerns over the authenticityof the site, including Attorney GeneralButterworth’s comment that the Circle mayturn out to be a septic tank, did not stop thestate or county government from pledging

millions of dollars for the purchase.While research since that time has led to

more evidence that the site is of ancientorigin, there are still reasons to doubt thepolitical system’s ability to decide whichbudget allocations would save key archaeo-logical sites most effectively. Politiciansstrive to please, or at least to not offend,voters. Yet voters know very little about thecase, the cultural values at stake, or aboutthe value to the larger archaeological pic-ture. Nor do they have any idea of how thisand other sites might compare in value orhow that value might compare to the hospi-tal, school, or other public goods that may besacrificed if tens of millions of dollars arespent here.

Compare that politician’s dilemma withthe decision facing the ArchaeologicalConservancy or even a consortium of suchgroups that might seek to privately secureand investigate the site, perhaps to sell someof the artifacts later after they have beenproperly recorded and researched. In thelatter case, the important constituents aspotential donors will know far more aboutthe relevant tradeoffs. Such a private groupis likely to err less often because of its needand its ability to deal with knowledgeable,even passionate, people who sacrifice tofinance the work. Organizations that havemade sound decisions and few errors willrecruit alert donors from competing groups.

Consider also government’s penchantfor short-term solutions. The purchase of theMiami Circle probably does not improve theability of archaeologists (or others) to betterpreserve future important discoveries. Thedecision to preserve the Circle was madepolitically rather than voluntarily by thosewho will pay. At the same time, the countygovernment insisted on an all-or-nothingsolution rather than rescue archaeology. As aresult, the cost may have been much higher


16

than it otherwise would have been. Whileeveryone agrees that saving all-importanthistoric and prehistoric sites would generatebenefits, limited resources dictate trade-offs,even in a relatively wealthy place likeMiami. Other issues such as education andlaw enforcement compete for the samebudget revenue.

Agreeing to spend $26 million to pre-serve this site has done nothing to secure thepreservation of future discoveries. What willhappen, politically or otherwise, the nexttime an important site is discovered? No oneknows.

The state failed to adopt a “look beforeyou leap” policy that would have requiredquestions about the site’s authenticity andimportance to be answered before a pur-chase was agreed to. If the site proved to beinauthentic, public support for archaeologi-cal funding could be severely curtailed.While archaeology currently enjoys highpublic interest, that enthusiasm could bedampened if the public views such decisionsas mere bowing to political pressure groupsrather than a legitimate historic preservationeffort. As long as decisions over archaeo-logical preservation continue to be made inthe political arena, we should expect politi-cal considerations to dominate, rather thanprimarily scientific or historical consider-ations.

5. A Better Way:Improved Institutional Arrangements

in ArchaeologyThe Miami Circle episode illustrates some ofthe problems that engulf archaeology today.One problem is a reliance on regulations thatmay discourage those who find artifactsfrom preserving them in the future. Anotheris the lack of sufficient funds to ensure thatfuture archaeological finds will be pre-served. Finally, a continuing problem is

looting, which both damages archaeologicalsites and distributes artifacts bereft ofknowledge about their context and history.

Many archaeologists believe that themarket for artifacts is the enemy of archaeol-ogy, as indicated by the code of ethicsquoted earlier. In a sense, the market is anenemy today. Archaeological sites andartifacts are not protected and are not madevaluable to landowners by property rightsthat are secure and easily defended. Inaddition, the market for artifacts today isconducted without the participation ofcareful archaeologists. However, the arti-facts market that today causes problems forgood archaeology could become its greatestbooster.

Using Market Incentives to PreserveNatural Resources

The idea of using markets to preserve natu-ral resources, including wildlife, is notunusual. Mounting evidence is showing thatmarkets perform this task quite well.50

One example is the CAMPFIRE programin Zimbabwe, which allows local villages toprofit from the preservation of elephantherds and other wild animals. This programhas shown that markets can be a key part ofthe drive to sustain their populations.

Prior to the program inception, villagersfound it difficult to protect their crops,homes, and sometimes their lives andviewed wild elephants as dangerous com-petitors. They often killed the animals andpoaching was rampant, as villagers ignoredand sometimes even helped poachers. Underthe CAMPFIRE program, local communitiesare allowed to profit from fee hunting andrecreation programs that involve the el-ephants. The fees generated by huntingexpeditions ($12,000 or more for a singleelephant) are a financial boon to a villagewhere the average income per family of


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eight is about $150 per year. Even with thishunting, elephant populations are increasingbecause the financial incentives the villagesreceive ensure that adequate numbers ofanimals are preserved for the future. Theyresist the temptation to allow over-huntingand poaching because they want to haveadequate numbers of elephants to profitfrom future hunts. Today, villagers view theelephants as beneficial and the poachers ascompetitors. Since the program’s introduc-tion, poaching has decreased and villagershave become the protectors of elephants andother species.

This change in incentives has had dra-matic results. From 1989 to 1995, elephantpopulations in Zimbabwe grew by 14 per-cent while in much of the rest of Africa,where traditional regulations were relied on,the herds decreased by 24 percent.51 Oncethe value of elephants to society was notonly recognized but also shared with thosewho were most closely involved with them,the animals’ value increased. Those fromwhom stewardship and sacrifice were askedwere given an ownership stake in return. Asnormally happens in markets with propertyrights, the fruits of their stewardship in-creased and were shared with buyers fromthe general public—those who paid foraccess to the elephants through tourism,photo opportunities, and hunting experi-ences. Today, there is a saying in Africaabout wildlife there: “If it pays, it stays.”

The Zimbabwe experience is not anisolated instance. A report by the President’sCouncil on Environmental Quality52 and abook, Enviro-Capitalists: Doing Good WhileDoing Well,53 cite numerous examples ofprivate organizations, both nonprofit andprofit-making, that protect the environmentprivately using the tools of the marketplace.

Using Markets for ArchaeologicalPreservation

The market institutions and incentives thathelp preserve elephant populations in Zim-babwe can also encourage the preservationand study of archaeological artifacts. Thetwo primary changes needed to reap thesebenefits are: 1) to give private landownersclear and transferable property rights to theartifacts found on their land, and 2) to allowfor the free import, export, and sale oflegally owned artifacts so that an openmarket can develop.

This would be a dramatic change fromthe status quo. Current regulations in manycountries, together with the currentlyprevailing anti-market code of ethics inarchaeology, discourage the preservation ofartifacts. This command-and-controlapproach imposes costs on landowners,developers, and those who would laterbenefit from using the developed sites. Italso fails to reward the best stewards, toreward added cooperation from landownersand developers, and to gain more supportfrom enthusiastic followers of archaeology.If landowners were encouraged to contractwith archaeologists to explore and developpromising sites, far more value would beproduced and potentially valuable siteswould be zealously protected against lootersand “pot hunters” who disturb sites and ruinthem for serious study. In contrast, today’sapproach of seizing control over excavationand over the artifacts found does the oppo-site—it removes the incentives to preserve,research, and thus add market value toartifacts. Good intentions are not enough.Good results will require better methods.

A proper market in artifacts would pro-duce more revenue than even today’s marketdoes, which is understandably shunned byarchaeologists. The prospect of sharing in


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that revenue would encourage both land-owners and developers to recognize thevalue of archaeological resources that mightbe discovered on their land, thus encourag-ing conservation and proper development. Afully researched artifact is worth far more,because with it comes the fullest story thatcan be told about its context and history.

Landowners with clear and secure prop-erty rights to artifacts discovered on theirland and with the knowledge that a marketfor properly researched and recorded arti-facts exists, would be motivated to seekskilled archaeological help in finding anddeveloping additional value from the arti-facts. The antiquities would then find theirway to those museums or collectors whovalued them, much as the market for paint-ings of the masters or the market for an-tiques works today. More artifacts would bepreserved and fewer of those that are discov-ered would be unused and stored in costlywarehouses.

Just as the CAMPFIRE program inZimbabwe has made wildlife the friendrather than enemy of local villagers, properreform could make archaeological finds abenefit to landowners and developers ratherthan a burden. Archaeologists would be seenby those who own or control promising sites,including those about to be developed forother land uses, as the discoverers andcreators of value that they really are.

We could expect contractual arrange-ments between archaeological groups andlandowners to develop to explore prospec-tive archaeological sites, just as they havedeveloped between landowners and petro-leum exploration companies. The contractswould specify up-front payments or bonuses,if any, together with agreements about thetiming and time allowed for excavating anddocumenting sites and its artifacts, prior topreparing articles for sale, and also royalties

or the sharing of any resulting revenues.Some would yield little in the way of mar-ketable artifacts, just as many drilling opera-tions fail to turn up marketable petroleumreserves. But drilling often produces valu-able information about the local area evenwhen no marketable petroleum is found.Similarly, archaeological exploration mayproduce valuable knowledge from a siteeven when no artifacts with market value arefound. Expectations of a find give landown-ers an incentive to protect potential sites andto cooperate in their development.

As rewards grow for better archaeology,the demand for better archaeological sciencewill grow, too. In this (proposed) market asin others, we should expect that reputationmatters and will be rewarded. Archaeolo-gists, some of whom may be affiliated withspecific museums, would be rewarded in themarket for good track records in archaeol-ogy. An artifact marketed with a historydeveloped by a reputable firm, especiallyone affiliated with a reputable museum, isworth more to collectors.

Such an artifact would also increasepublic support of archaeology. As more arediscovered, prices would decline for themost plentiful items, even as their value wasenhanced by the accompanying certificatesof legitimacy and explanations of contextand interpretations of their historical signifi-cance. The increased flow of value wouldencourage and enable more people to be-come collectors. In addition, public supportwould be fostered by the cooperative natureof the value-producing voluntary market inartifacts. When cooperation with archaeolo-gists is voluntary, as well as potentiallyrewarding, archaeologists should be appreci-ated, not resented. In contrast, the currentpolitical control has led to contentiousdebates such as the one over the fate of theMiami Circle. Minimizing the role of politi-


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cal decision making and involuntary seizureof rights would give archaeology a morefavorable image.

Preventing LootingOne major problem is the indifference tolooting on the part of owners who could, at acost, prevent it. The current regulatoryregime is failing. According to HershelShanks, a prominent critic of the currentapproach, “Campaigns to put antiquitiesdealers out of business and to discourageprivate ownership by vilifying collectorshave not had any significant effect on loot-ing.”54 A market for properly researchedartifacts, complete with descriptions of thecontext and importance of the objects,however, should reduce this problem.Looted artifacts should become much lessvaluable. Currently, plundered artifacts arethe only ones available to collectors in manycountries and regions because of tight re-strictions on the movement and sale oflegitimate finds. Indeed, in some placesprofessional archaeologists cannot gainaccess to legitimate artifacts because restric-tive policies have discouraged their collec-tion and discovery. In those countries, betteraccess for archaeologists and better protec-tion for sites could be greatly aided by use ofmarkets for artifacts.55

Shanks has argued that market systemwould decrease looting because looterscould be gainfully employed in far moreproductive archaeology. Today, lootingprovides a profitable escape from traditionalmethods of employment such as farming.“Why not employ them [looters] to do thesame thing they are doing, but under thesupervision of archaeologists?”56 Shanksasks. Much of the problem now is that pothunters rapidly rummage through sites,destroying much of a find’s valuable contex-tual information. Working under archaeolo-

gists’ supervision, looters could be taughtproper technique and thereby preserve muchof the understanding of the past that iscurrently being destroyed.

Archaeologists could gain additionalfunding for their excavations and researchby selling many of the artifacts of whichmuseums and government warehouses havenumerous duplicates, sometimes a thousandtimes over. As Shanks tells it, “It is notsimply that they (duplicate artifacts) are notneeded. Worse, they cannot be stored; thereis no longer any space in government andmuseum stores to house and conserve themin a way that would make them available toscholars. It would be better to enter appro-priate records into a computer, to photographthe objects, and then to sell them.”57 Shanksprefers to give first choice in any sale topublic institutions, but this would be notnecessary to ensure proper research or publicdisplay.

Ensuring Diversity in ArchaeologyFinally, a market in properly researchedartifacts would preserve a broad spectrum ofarchaeological artifacts. The debate over thefate of the Miami Circle, much like thedebate about archaeological preservation inthe rest of the world, has been characterizedby charges of one culture dominating ordestroying the history of others. But by theirvery nature, markets provide a solution tothis problem, one that governments’ effortshave often failed to address successfully.

Bringing collectors, hobbyists, amateurs,professionals, and museums into marketcooperation would allow a wide variety ofviews and values to be reflected. Whilesome collectors may only be interested inEgyptian artifacts, others may value Romanor Greek relics, and others may want arti-facts of American Indian origin preserved.When preservation decisions are made in the


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political arena, with its “majority rules”mentality, diverse views often are poorlyrepresented. Markets, in contrast, cater toindividual tastes and preferences in all theirdiversity. Small niche markets can developthat would never be supported by a majorityof those interested. Allowing a market inarchaeological artifacts to develop wouldincrease the diversity of artifacts that arepreserved and studied.

Developing a Registry of ArtifactsAs their knowledge of the past and theirscientific tools improve, archaeologistssometimes revisit the trove of artifacts froma given site to learn more from them andperhaps to reinterpret them. If the artifactsare scattered, how would this occur? Onefeature of markets is that secure propertyrights in valuable and unique assets areusually registered and frequently insuredagainst theft or destruction as well. So itwould be natural to develop such a registryfor valuable pieces. Insurers might demandit and owners would cooperate to gain andpreserve clear, transferable, and insurabletitles. And when an artifact is first sold, afterbeing studied and recorded, the sale couldinclude a contractual stipulation that tempo-rary return for further study could be de-manded by the archaeologist or firm sellingit. Most collectors would prefer artifactsthought to be unique and important enoughto be subject to such a stipulation. And theirdesire for clear and transferable title andinsurability would encourage buyers andsellers to keep the registry current if theartifact is sold. It would be far better thatcollectors, while enjoying the artifacts,should also pay for their storage and safe-keeping of the vast troves of historic trea-sures, rather than having archaeologists ormuseums bear those costs.

6. ConclusionThe discovery in 1998 of an ancient Ameri-can Indian formation in downtown Miamisparked a debate about modern society’sability to preserve and appreciate past cul-tures and their history. After a long and oftencontentious year of political and legal wran-gling that was publicized worldwide, theMiami Circle was purchased with state andcounty funds in the amount of $26.7 million.

But the government’s purchase, made inthe context of eminent domain proceedings,has done little to clarify how future archaeo-logical finds will be preserved. In fact, thehigh price of the current deal raises ques-tions about how frequently it will be politi-cally feasible to preserve future finds thisway. And the question of how to go aboutarchaeological preservation is not limited toMiami or to Florida.

Around the world, as populations andeconomies grow, people increasingly comeinto contact with remnants of past culturesand civilizations. Many potentially importantsites are lost regularly to construction. Agri-culture and the natural elements also take atoll. The problems of preservation are fur-ther exacerbated by a lack of funding forarchaeological research and by rampantlooting, which destroys sites to meet theincreasing demand of international collec-tors.

Most nations have developed laws andregulations to prevent the destruction of thehistorical record from construction or loot-ing. These have generally failed to curblooting and have put pressure on the limitedresources of archaeologists who try in vainto stay ahead of the farmers, developers,plunderers and the forces of nature. Theseregulations, together with a code of ethicsthat strongly discourages archaeologistsfrom marketing properly researched arti-facts, often have unintended side effects.


21

They encourage the hiding or even thedestruction of artifacts by builders andothers who see them as a burden; they dis-courage landowners and developers fromcooperating with archaeologists; and theycontribute to the demand for looted artifactsby reducing the supply of legitimate arti-facts.

To remedy these problems, an approachto preservation that relies on markets and theincentive to find, enhance, and share inmarkets can supplement or even replaceregulatory dictates. Similar approaches arehelping to protect natural resources andwildlife, such as elephant herds in Zimba-bwe. Granting clear and defendable propertyrights in artifacts to landowners and allow-ing an open international market to developto trade properly researched and well-mar-keted artifacts could help ensure that moreartifacts are found and preserved, at agreater number of more diverse sites. Doingso could also ensure that looters and otherdestructive forces could threaten and disturbfewer archaeological sites.

This research was supported by The JamesMadison Institute and the Political EconomyResearch Center. The authors wish to thankEli Friedman, Harvey E. Oyer III, JohnRicisak, Tom E. Roll, and the University ofMiami Law School seminar participants forinsightful comments.

Endnotes

1. Merzer, Martin, “Archaeologists Sift Stunning Evidence of AncientCulture,” Miami Herald, January 3, 1999.

2. Milanich, Jerald T., Florida’s Indians: From Ancient Times to thePresent, (Gainesville, Fla.: University Press of Florida, 1998), p. 123.

3. Ibid.

4. Whoriskey, Peter, “The Holes, the Eye, the Axes: Mysteries May GoUnsolved,” Miami Herald, February 14, 1999.

5. Chardy, Alfonso, “Penelas Suggests Buying Circle Site,” MiamiHerald, February 6, 1999.

6. The state cabinet is composed of seven members; the governor, thesecretary of state, the attorney general, the comptroller, the insurancecommissioner, the agriculture commissioner, and the educationcommissioner.

7. Bridges, Tyler, “Miami Circle Given Priority for State Purchase,”Miami Herald, May 26, 1999.

8. Bousquet, Steve, “State’s Cost Rise in Deal for Circle,” MiamiHerald, September 29, 1999.

9. Ibid.

10. Milanich, Jerald T., “Much Ado About a Circle,” Archaeology,September/October 1999.

11. Fienfrock, Don, “Commisioners Rip Tribes for Not Funding CircleDeal,” Miami Herald, October 2, 1999.

12. Whoriskey, Peter, “County Wins Right to Buy Circle fromDeveloper,” Miami Herald, June 29, 1999.

13. Renfrew, Colin and Paul Bahn, Archaeology: Theories, Methodsand Practice, (London: Thames and Hudson, Ltd., 1996) p. 509.

14. Ibid., p. 19.

15. “Rock of Ages,” Archaeology Odyssey, September/October 1999.

16. Oyer, Harvey E., memorandum to the authors, August 10, 1999.

17. Renfrew and Bahn, p. 523.

18. Fay, Stephen, “Cleopatra Lives,” Conde Nast Traveler, May 1999.

19. Bahn, Paul G., “Digging Up the Past—without Recriminations,”Wall Street Journal, September 7, 1999.

20. Ibid.

21. Nafziger, James, “International Penal Aspects of Protecting CulturalProperty,” The International Lawyer, Vol. 19, No. 3, 1985, pp. 835-852.

22. Fagan, Brian, The Ethics of Collecting Cultural Property, PhyllisMauch Messenger, ed., (Albuquerque: University of New Mexico Press,1989), p. xvi.

23. Herscher, Ellen, “International Control Efforts: Are There Any GoodSolutions?” The Ethics of Collecting Cultural Property, 1989, p. 118.

24. Sason, David, “Considering the Perspective of the Victim: TheAntiquities of Nepal,” The Ethics of Collecting Cultural Property,p. 69.

25. Miami Code Section 23-1.

26. Miami Code Section 23-2



29. Behan, Rosemary, “Ancient Artifacts Buried in Archives,” TheDaily Telegraph, July 22, 1998.


31. Ibid., p. 535.


22

32. “Rock of Ages,” p. 12.

33. As a side effect, owners of already developed properties experienceincreased wealth as rental and sale prices rise. Buyers and renters ofsuch properties see their costs of living or of doing business rise.

34. Warren, Karen J., “A Philosophical Perspective on the Ethics ofCollecting Cultural Properties Issues,” The Ethics of CollectingCultural Property, 1989, p. 19.

35. Stroup, Richard L., “The Endangered Species Act: Making InnocentSpecies the Enemy,” Policy Series Number 3, Political EconomyResearch Center. April 1995.

36. Ibid.

37. Stroup, Richard L., “The Economics of Compensating PropertyOwners,” Contemporary Economic Policy, Vol. 15, Oct. 1997, pp. 55-65. See also Lueck, Dean, and Jeffrey Michael, “Pre-emptive HabitatDestruction under the Endangered Species Act,” PERC Working Paper(WP 99-1).

38. Nancy Marie White cited in “Ancient treasures lost and found,”Tampa Tribune, March 14, 1999.

39. Ancrum, Nancy, “Miami Circle Mysteries Pose Dilemma forDeveloper,” Miami Herald, February 4, 1999.

40. Garcia-Toledo cited in Merzer, Martin and Alfonso Chardy,“Developer Gets Tough: No Further Delays, Officials Are Told,” MiamiHerald, February 10, 1999.

41. The general public will probably benefit from any new discoverybased on potential new historical or scientific knowledge that may beproduced. This does not necessarily alter the decision-making process ofthe developer who is still facing financial incentives to expedite theprocess.

42. Merzer and Chardy, op. cit.

43. Chardy, Alfonso and Don Finefrock, “It’s History vs. Taxes,” MiamiHerald, February 5, 1999.

44. Whoriskey, Peter, “Price Will Be an Issue if Land Is Seized,” MiamiHerald, February 16, 1999.

45. _____, “How To Grow Downtown and Respect Past?” MiamiHerald, February 18, 1999.

46. Shanks, Hershel, “The Great MFA Exposé,” Archaeology Odyssey,

May/June 1999, p. 23.

47. Archaeologists involved with the preservation of the Miami Circlehave expressed to the authors their doubt that the controversysurrounding the discovery has resulted in a chilling effect on coopera-tion. They pointed out that more developers have been coming forwardwith questions about how to handle archaeological finds. That increasedconcern about knowing the rules, however, may simply reflect increasedawareness of the bind they are in. Developers eager to cooperate wouldseek such information, but so also would those seeking simply tominimize their costs. We are inclined to expect cost concerns to be highon the priority list of a profit-seeking developer. A measure to decreasetheir cost should automatically act to increase their cooperation.Similarly, a market to increase their return for recovered artifact shouldalso increase their eagerness to cooperate with archaeologists.

48. See Kealey, Terence, The Economic Laws of Scientific Research(London: MacMillan Press LTD), 1996.


50. Anderson, Terry L. and Donald R. Leal, Free Market Environmen-talism, (San Francisco: Pacific Research Institute), 1991.

51. Anderson, Terry L. and J. Bishop Grewell, Forthcoming. “PropertyRights Solutions for the Global Commons from the Bottom-up or theTop-down?” The Duke Environmental Law and Policy Forum, DukeUniversity, Durham, N.C. April 2000.

52. Council on Environmental Quality, Fifteenth Annual Report(Washington D.C., 1984), pp. 362-429.

53. Terry L. Anderson and Donald R. Leal, Enviro-Capitalists: DoingGood While Doing Well, (Lanham, Md.: Rowman & Littlefield,Publishers, 1997).

54. Shanks, Hershel, “Let’s Do What We Can! The Impossible Will TakeForever,” Archaeology Odyssey, November/December 1999.

55. Some countries may wish to restrict the market by giving regulatorypowers to cultural ministries. For example, key artifacts might bestudied properly but might never be allowed to leave the country, whileonly duplicate or less important pieces were marketed to help pay forthe added protection and additional archaeological efforts there. Whilethis approach would not enjoy all the benefits of an unrestricted market,it may be a more politically viable alternative given the severe distrustof markets by many in the archaeological community.

56. Shanks, Hershel, “How to Stop Looting: A Modest Proposal,”Archaeology Odyssey, September/October 1999.

57. Ibid.


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