Archaeological Protection Gone Wild: The Lynch Case

     In 1979 Congress passed the Archaeological Resource Protection Act (ARPA) which made it a federal crime to excavate, remove, damage, alter, and/or deface (without a government permit) archaeological resources from federal and Indian lands. Under ARPA, an "archaeological resource" was an item of past human existence or archaeological interest more than a hundred years old. First time ARPA offenders, in cases where the value of the artifacts and the cost of restoration and repair of the damaged archaeological site was less than $500, could be fined no more than $10,000 or imprisoned for more than one year. However, if the value or restoration costs exceeded $500 the offender faced fines up to $20,000 and imprisoned for two years on each count. Under ARPA, federal authorities could pursue violators civilly or in criminal court, imposing fines and confiscating vehicles and equipment used in the commission of the prohibited activity.

The Ian Martin Lynch Case

     Although he didn't know it at the time, 23-year-old Ian Martin Lynch made the mistake of his life when he picked up a human skull lying among hillside rocks on an uninhabited island off the shores of southeastern Alaska. In July 1997 Mr. Lynch and two of his friends were deer hunting on public land in an area called the Warm Chuck Village and Burial Site. They had no knowledge of this place, were unaware it had once been the home of Native Americans and were not looking for prehistoric artifacts. There were no indications, other than the skull the men had stumbled upon, that the site was an ancient grave site.

      While exploring the area while his friends were breaking camp, Ian Lynch scraped the dirt away from the back of the skull then picked it up for a closer look. He guessed the skull, and the bones scattered around it, had been there for some time because of the absence of clothing. He had no way, however, of knowing that the remains he had found were archaeological resources.

     Shortly after taking the skull home Mr. Lynch decided to turn it over to the U.S. Department of Agriculture's Forest Service Office in Anchorage. He described how he had come in possession of it to a government employee and revealed the circumstances surrounding his discovery. A short time later an agent with the Forest Service asked him to come to the federal building for an interview.

     When the Forest Service agent asked Lynch if he knew the skull was old, the interviewee said, "So, I mean, it's definitely been there for awhile. Oh, man, it's definitely old. There's not a stitch of clothing or nothing with it." (To make a federal case against Mr. Lynch the Forest Service agents had to establish he knew, or should have known, that he was taking away a skull more than a hundred years old.)

     The Forest Service archaeologist for the region examined the evidence but was unable to  determine the age of the skull. That prompted the Assistant United States Attorney (AUSA) to call in a physical anthropologist to determine, through visual analysis, the age of the head. This expert also declined to scientifically declare the skull an archaeological resource. The AUSA, determined to establish a crime under ARPA, sent the skull out for carbon dating. This analysis revealed that it was at least 1,400 years old. This opened the door for a federal prosecution.

     In 1998 a federal grand jury sitting in Anchorage returned an indictment charging Ian Martin Lynch with a felony ARPA offense. If convicted he faced up to a year in prison and a $10,000 fine. Lynch's attorney filed a motion to dismiss the indictment on the ground the government had not met its burden of proving that Mr. Lynch, in taking the skull, had sufficient knowledge to establish the requisite criminal intent to violate this law. Specifically, the prosecution had not proven that Lynch knew the skull was an archaeological resource.

     The U.S. District Judge, reasoning that Lynch's picking up the skull was "a wrong in itself," ruled that the prosecution did not have to prove that Lynch had specifically intended to commit the crime. Based on this legal rationale the judge denied the defense's motion to dismiss the indictment. In response to this ruling, Ian Lynch pleaded guilty to the single ARPA count while retaining his right to appeal the judge's decision. In 1999 the judge sentenced Lynch to six months in prison and fined him $7,000 to cover the costs of the burial site restoration. (Lynch had picked up one bone, what restoration?) At his sentencing the defendant told the judge he had not intended to offend Native Americans. He remained free on bail pending the results of his appeal to the Ninth Circuit Court of Appeals.

     In 2000 the federal court of appeals overturned the ARPA conviction. Judge Alfred T. Goodwin, one of the three jurists on the panel, wrote: "The Government must prove that a defendant knows or had reason to know he was removing an 'archaeological resource' before that defendant can be found guilty of an ARPA offense."

     The reversal of Lynch's conviction made sense, but what didn't make sense was why the U.S. Forest Service and the federal prosecutor in Alaska went after Mr. Lynch in the first place. Congress, in passing ARPA, intended to punish and deter the for-profit looting of archaeological sites. Mr. Lynch was not even an artifact collector. It's hard to believe that federal law enforcement officers would waste taxpayers' money by pursing such a questionable case. And finally, what kind of judge would sentence a harmless defendant like Mr. Lynch to six months in prison?

The G E Mound Case

     The G E Mound Case is a narrative nonfiction account of the controversial federal prosecution of five Indian relic collectors involved in the archaeological destruction of a 2000-year-old Indian mound on land owned by a General Electric plastics plant near Mount Vernon, Indiana.

     Art Gerber, a prominent artifact collector, amateur archaeologist and professional photographer from Tell City, Indiana, an Ohio River town located not far from the mound in the southern tip of the state, became the target of the federal investigation of the mound's destruction. Gerber, one of dozens of collectors who hunted relics on the site, had been on the mound in the summer of 1988 on three occasions. The site had been destroyed six weeks earlier by a G E earthmoving contractor pursuant to a landscaping project around the plant's newly built reception center.

     Although G E officials knew they were using soil from an Indian mound for landscaping fill, Art Gerber and the other collectors were prosecuted to placate Native American activists, professional archaeologists and others who consider artifact collecting and amateur archaeology a form of archaeological looting.

     The post-destruction analysis of the so-called G E Mound revealed that it was one of the most important Hopewell era (Middle Woodland) sites ever discovered. The criminal convictions of Art Gerber and the other collectors made legal history because the defendants were held culpable federally even though the artifacts had been removed from private land. To achieve this the federal district judge broadly interpreted an arcane, never before used provision of the 1979 Archaeological Resource Protection Act. The unusual conviction was upheld by the federal appeals court in Chicago. Gerber's appellate attorneys appealed that decision to the U.S. Supreme Court that declined to review the case.

     The G E Mound Case features Art Gerber's fight to defend amateur archaeology and Indian relic collecting. On a personnel level the story involves his struggle against powerful political forces to avoid going to prison. Up against Native American activists who hated him, professional archaeologists who disapproved of his collecting, a well-organized corporate public relations machine, a biased media and an aggressive federal prosecutor, Art Gerber lost his financial security, his health and his freedom. Eventually the case would also cost him his marriage.

     Once Art Gerber was on his way to federal prison Native American activists and professional archaeologists, allies in the anti-collecting movement, turned on each other in a war over who controlled the 5,000 G E Mound artifacts that had been turned over to the FBI. The archaeologists wanted to study the relics. Native American wanted them returned to the earth. With the hasty reburial of these unique clues to the ancient past, the Native Americans won that fight. The G E Mound Case is set against the ongoing war over who owns the ancient relics of America's prehistoric past.

     Mr. Gerber died on August 28, 2017 at the age of 79. 

The Kennewick Man

     In the 1980s Native American activists began calling for a federal law that mandated the return of prehistoric remains and certain artifacts held by government and federally funded museums and universities to the descendants of these indigenous people. Following a series of Congressional hearings Senators Daniel Inouye of Hawaii and John McCain of Arizona proposed the Native American Grave Protection and Repatriation Act (NAGPRA). President George H. Bush signed the law in 1990.

     NAGPRA, administered by the Native American Grave Protection and Repatriation Act Office within the Department of Interior, is comprised of three principal sections. NAGPRA outlaws the unauthorized excavation of Native American Grave sites on federal land; requires museums and universities covered under the law to catalogue "cultural items" in their collections and share lists of these objects with the appropriate tribes so they can petition their return; and prohibits individuals from buying or selling Native American "cultural items," "sacred objects," "ceremonial objects" and artifacts with "ongoing historical, traditional or cultural importance" to a Native American group. NAGPRA does not apply to human remains and relics removed from state or privately owned land, or to artifacts acquired or found before 1990. 

The Kennewick Man Case

     Two college students walking along the Columbia River near Kennewick, Washington on July 28, 1996 stumbled upon a human skull lying in two feet of water. After examining the site as a potential crime scene, Benton County Coroner Floyd Johnson called in Dr. James Chatters, a local forensic anthropologist. Chatters discovered, buried nearby, the rest of the bones that he took to the coroner's office for further examination.

     Following a newspaper report regarding the discovery of human remains that appeared to be prehistoric, representatives of the Umatilla people, a federally recognized tribe that lived in the area, came forward to claim the skeleton under NAGPRA.

     On August 27, 1996 Dr. Chatters held a press conference and announced that based on the radiocarbon process he believed the Kennewick Man, also known as The Ancient One, had lived during the Paleo period 8,340 to 9,900 years ago. This alone made fascinating and important news, but Dr. Chatters' revelation that Kennewick Man's skull had Caucasoid features (a long narrow face with a prominent chin) heightened media interest because it fueled the debate over the hypothesis that prehistory Europeans as well as Proto-Mongaloids had crossed the Bering Straight into North America.

   Dr. Chatters discovered a Paleo projectile point lodged in the Ancient One's hip, a wound that had not been the cause of the five-foot-nine forty-five to fifty-year-old man's death.

     In September 1996, as Dr. Chatters made preparations to ship the remains to Dr. Douglas Owsley, a physical anthropologist with the Smithsonian Institution in Washington, D. C., the United States Corps of Engineers (COE) stepped into the case on behalf of the Umatilla Tribe and three out-of-state Native American groups. The COE, having jurisdiction over the site of the Kennewick Man discovery, took custody of the remains before they were sent off for further scientific study.

     Although the Native American groups had not established cultural affiliation beyond oral histories, the COE, with speed uncharacteristic of a governmental agency, recognized their NAGPRA claim.

     Appalled by the arbitrariness of the COE's decision to repatriate the remains before they could be subjected to thorough scientific study, a group of anthropologists and archaeologists filed a federal lawsuit to overturn the COE's action. Federal Magistrate John Jelderks, in June 1997, ruled that the COE, by acting so hastily, had failed to consider and resolve key legal issues raised by the dispute. Judge Jelders vacated the repatriation and ordered the COE to reconsider the scientists' request to study the bones. In September 1997 a federal judge ordered the COE to send the Ancient One to the University of Washington's Burke Museum in Seattle. 

     Secretary of the Interior Bruce Babbitt, on January 13, 2000, issued a determination that the Kennewick Man was Native American and therefore covered by NAGPRA. Eight months later, Babbit ruled that the preponderance of evidence proved the Ancient One was culturally affiliated with the four claimant Indian tribes.

     Because Babbitt's ruling had no basis in science his decision created a firestorm of anger and frustration among anthropologists and archaeologists who believed the decision reflected "a lack of adherence to the statutory definition of cultural affiliation…and an apparent lack of appreciation for the decidedly balanced compromise that is at the heart of NAGPRA.

   In 2002 a group of scientists filed a federal lawsuit to block the repatriation of the Ancient One's remains. In August of that year the federal magistrate presiding over the case found in favor of the plaintiffs. The judge condemned Secretary Babbitt's ruling that the Native American claimants shared a cultural affiliation with the Kennewick Man. The judge opined that Babbitt, in making his decision, had not considered all of the relevant factors related to the issue. The four tribes, joined by the Department of Justice, appealed the case to the Ninth Circuit Court of Appeals in San Francisco.

     The federal appeals court, in April 2004, affirmed the lower court's ruling. Appellate Judge Gould, in upholding the scientists' right to maintain control of the remains, wrote: "….Scant or no evidence of cultural similarities between Kennewick Man and modern Indians exists. One of the secretary's [Babbitt's] experts, Dr. Kenneth Ames, an anthropologist with Portland State University, reported that 'the empirical gaps in the record preclude establishing cultural continuities or discontinuities, particularly before about 5,000 B.C.' Dr. Ames noted that although there was overwhelming evidence that many aspects of the "Plateau Pattern" [The region drained by the Columbia and Fraser Rivers.] were present between 1,000 B. C. and A. D. 1, 'the empirical record precludes establishing cultural continuities or discontinuities across increasingly remote periods.' He noted that the available evidence is insufficient either to prove or disprove cultural or group continuity dating back earlier than 5,000 B. C., which is the case with regard to the Kennewick Man's remains, and that there is evidence that substantial changes occurred in settlement, housing, diet, trade, subsistence patterns, technology, projectile point styles, raw materials and mortuary rituals at various times between the estimate date when Kennewick Man lived and the beginning of the Plateau Culture some 2,000 to 3,000 years ago."

     In July 2004 the four claimant tribes announced they were not going to appeal the Ninth Circuit's decision to the U. S. Supreme Court. This closed the case and opened the door for further study of the Kennewick Man's bones. Native American activists regarded the Kennewick Man case a bitter defeat and significant setback in the repatriation movement.

     At the annual American Association of Forensic Sciences convention held in February 2006 in Seattle, Dr. Douglas Owsley presented his analysis of the Kennewick Man's remains. According to the anthropologist the Ancient One, because he was more than 9,000 years old, was more closely related to old world populations than to American Indian groups that came to North America across the Bering Straight 2,000 years later. 

Earl K. Shumway: Archaeological Looter

The Archaeological Resource Protection Act  

      The lobbying efforts of the Society for American Archaeology, an international organization dedicated to the research, interpretation, and protection of the archaeological heritage of the Americas, led to the passage of the Archaeological Resource Protection Act (ARPA), federal legislation signed into law in October 1979 by President Jimmy Carter. Under Title 16 of the United States Code, Sections 470 aa to 470 mm, ARPA preserves archaeological resources on federal and Indian lands with the aim to prevent the loss of irreplaceable artifacts that are part of the nation's cultural heritage.

     At its core, ARPA makes it a federal crime to excavate, remove, damage, alter, and/or deface (without a government permit) archaeological resources from protected areas. It is also a federal offense, under this law, to traffic interstate in artifacts acquired in violation of the act or in breach of local or state law. Under ARPA, an "archaeological resource" is an item of past human existence or archaeological interest more than a hundred years old.

     First-time ARPA offenders, in cases where the value of the artifacts and the cost of restoration and repair of the damaged archaeological site is less than $500, can be fined no more than $10,000 or imprisoned for more than a year. However, if the value or restoration costs exceed $500, the offender can be fined up to $20,000 and imprisoned for two years on each count. Repeat ARPA offenders can be fined $100,000 and sent to prison for five years on each count. Under ARPA, federal authorities can pursue violators civilly or in criminal court, imposing fines and confiscating vehicles and equipment used in the commission of the prohibited activity.

Looting Anasazi Artifacts

     Earl K. Shumway, the central figure in the country's first major ARPA case, came from a family of archaeological looters. Earl grew up in Moab, Utah, a Mormon town seventy miles north of the four corners village of Blanding, where, in June 2009, FBI and Bureau of Land Management (BLM) agents raided the homes of eleven ARPA defendants. DeLoy Shumway, Earl's father, spent years plundering Anasazi ruins for pottery and other artifacts in the Puebloan region of the Colorado Plateau in southeastern Utah. In the early 1980s, Earl's distant cousin, Casey Shumway, had the distinction of being the nation's first ARPA defendant convicted of the offense.

     From 700 to 1300, the Peublo (also referred to as the Anasazi) people grew beans and corn and built masonry structures--so-called cliff dwellings--into canyon alcoves that still show rock petroglyphs depicting animals, human figures, and prehistoric tools. Just before the turn of the fourteenth century, social upheaval and prolonged drought caused these people to migrate south. They never returned, but left in Utah's San Juan County alone, a place the size of Connecticut, 28,000 known archaeological sites.

     In 1850, Mormon settlers to southwestern Utah found, scattered virtually everywhere, prehistoric tools, flint projectile points, and shards of Anasazi pottery. The collecting of prehistoric pottery began in the late 1800s after Colorado rancher Richard Wetherill discovered Anasazi ruins in Mesa Verdi. In the canyon cliff dwellings he and his brother found decorated pottery, jewelry, tools, sandals, and woven blankets. The brothers also discovered thousands of grave sites containing human skeletons wrapped in blankets.

     The Wetherill discoveries launched a lucrative trade in Native American artifacts fueled by competition between the Smithsonian and other U. S. museums and a growing interest among the general pubic in Indian relic collecting.

     Up until 1930, archaeologists and curators at the University of Utah paid artifact hunters two dollars for every piece of pottery (called "pots" by collectors) they brought to the school. Earl Shumway's grandfather, in the 1920s, sold 370 pieces of Anasazi pottery to the university. In those days he could acquire up to seventeen pots in a single day, and in a productive month, dig up two hundred, many of which ended up in a local museum.

     Craig Childs, in his book Finders Keepers, chronicles the early relationship between the region's pot hunters and the university: "In the 1920s an archaeologist named Andrew Kerr from the University of Utah in Salt Lake appeared [showed up in the area] after he heard that an entire quarter of the state was filthy with archaeology right near the surface, graves practically springing from the ground. Kerr hired local residents to dig; his head diggers were members of the Shumway family who had already done a good deal of private excavation. The Shumways did most of the work while Kerr sat back. They showed him how to locate the best caches of artifacts, how to dig without breaking pots. Meanwhile, Kerr encouraged them and paid them to become even better at it. Showing little regard for scientific method, he wanted only the most visually stunning artifacts which he shipped back to the university museum."

     According to William Hurst, an archaeologist and lifelong resident of Blanding, Utah, Anasazi projectile points, tools, and pottery, during the 1950s and 1960s, were everywhere and easy to find. Most of the local collectors were surface hunters who picked up pieces from cultivated fields. In those days, collecting arrowheads in and around Blanding was like picking up seashells from a beach.

     A Blanding resident and artifact collector, speaking about what it was like in the 1950s and 1960s, said this to a journalist writing about the plundering of Anasazi sites: "This was our way of life. You could find artifacts just everywhere. You can go in any direction from Blanding and they'll be mounds and dwellings and arrowheads and artifacts." In the same article, Toni Turk, the then mayor of Blanding, also described how it was for collectors in those days: "The pottery was so commonplace that kids would use them for target practice, they would throw rocks at them. There was nothing particularly special about them. Some people started seeing in them some art value for themselves and they'd start collecting."

     Blanding mayor Turk also spoke of archaeological looters like Earl Shumway and his father. "Some people went in with heavy machinery. It took a lot of labor off the effort to dig up graves. They dug down to get the treasures. These are people who stepped across the lines of propriety. They got into looting graves and grave goods."

     According to Wayne Dance, the Assistant United States Attorney (AUSA) for the Utah District from 1990 to 2007, the prosecutor who targeted Earl Shumway and ended up prosecuting more ARPA subjects than any AUSA in the country, the bulk of Anasazi looting took place within a hundred mile, north-south corridor stretching from Moab to the town of Bluff on the edge of the Navajo Reservation near the Arizona state line.

The Earl K. Shumway Case

     In 1985, a federal grand jury sitting in Salt Lake City, indicted Earl K. Shumway, then twenty-five, on four felony counts in violation of the Archaeological Resources Protection Act. The fierce and flamboyant looter with the wild shock of red hair and matching mustache, had openly bragged about how much money he made selling Anasazi pottery, baskets, human remains, and other artifacts from hundreds of archaeological sites which he left littered with empty Mountain Dew cans.

     Because Shumway also boasted of carrying a .44 magnum revolver he'd use on anyone who'd confront him while digging for artifacts, federal agents despised and feared him. The AUSA charged Shumway with the removal and sale of thirty-four prehistoric baskets excavated from Horse Rock Ruin on federal land near Allen Canyon, Manti-La Sal National Forest in southeastern Utah. Shumway and his crew had been digging on this site since 1981. Tried and convicted in 1986, Shumway, to avoid serving time in prison, identified, for the FBI, a long list of artifact collectors living in Blanding. In turning snitch, he avoided prison and settled scores with collectors he didn't like. His information also led to a series of ARPA SWAT raids that year. All of those cases were eventually dropped.

     After informing on collectors, Earl Shumway returned to looting archaeological sites on federal land. In November 1994, a former Shumway business partner told the FBI that Shumway had been plundering artifacts at Horse Rock Ruin. The snitch said that Shumway had cheated him out of his share of the loot. Shortly after his arrest, Shumway pleaded guilty to three ARPA counts and a federal firearms charge. In return for his guilty plea, the judge sentenced the serial looter to probation.

     In June 1995, just seven months after Shumway's guilty plea, AUSA Wayne Dance, having successfully prosecuted forty ARPA defendants, convinced members of a federal grand jury in Utah to indict Shumway on a pair of four-year-old ARPA cases.

     In 1991, Shumway met helicopter pilot Michael Miller at a pool hall in Moab. After regaling Miller with stories of his archaeological adventures and the big money he made selling Anasazi pottery, baskets, and human remains, Miller contacted a helicopter pilot named John Ruhl and asked him to fly the pair around in search of potential sites. Shumway's father had taught Earl how to use aircraft in search for ruins. With diggers on the ground and a lookout in the sky, looters could easily avoid detection. Shumway, with Ruhl's knowledge, rented a  helicopter by telling Ruhl's employer he was a film scout.

     Ruhl flew Miller and Shumway to Dop-Ki Cave in Utah's Canyonlands National Park, a 350,000-acre tract where they dug up the skeleton of an infant wrapped in a blanket inside a burial basket. Shumway took the blanket and all of the bones except the skull. A few days later, Ruhl flew Shumway and Miller to Horse Rock Ruin where they spent the night. The next morning, Shumway dug up a pair of ancient sandals and a sleeping mat.

     At Shumway's November 1995 trial, AUSA Dance, through DNA analysis, connected the defendant to a cigarette butt found at the Dop-Ki Cave site. The jurors, based upon the first use of DNA evidence in an ARPA case, found Shumway guilty.

     Convicted of seven felony counts, Judge David K. Winder, appalled at Shumway's callous handling of the infant's remains, exceeded ARPA's punishment guidelines by sentencing the looter to six and a half years in prison. The judge also fined him $3,500. Shumway appealed his sentence to the Tenth Circuit Court of Appeals which reduced it to five years, three months.

     While being transported to prison, a group of Native American prisoners gave Shumway a severe beating. In 2003, three years after getting out of prison, Earl K. Shumway died of cancer. He was forty-six-years-old.

The Shameful Four Corners Archaeological Raids

     On June 9, 2009, in Blanding, Moab, and Monticello, Utah; Durango, Colorado; and Albuquerque, New Mexico; FBI and Bureau of Land Management (BLM) agents conducted 17 simultaneous pre-dawn SWAT raids into the homes of people who collected Indian relics. Eleven of the raids took place in Blanding, a San Juan County town in southeastern Utah.

     San Juan County is located in the heart of the Colorado Plateau of canyons and mountains that was home to the ancient Puebloan (Anasazi) people. These so-called cliff-dwellers, from 700 to 1300, populated an area about the size of Connecticut. The Zuni and the Hopi, as well as a dozen other Native American tribes, are thought to be the descendants of the Anasazi.

     The SWAT raids resulted in the seizure of thousands of artifacts that had been removed from the ruins of the Anasazi cliff dwellings, and various burial sites. A group of 24 collectors and dealers were charged with felonies and misdemeanors under the 1979 federal law called the Archaeological Resource Protection Act (ARPA) which prohibits, among other things, the taking of Native American artifacts from tribal and federal land. (In the American west, the federal government owns well over 50 percent of the land.)

     All but three of the 19 San Juan County arrestees lived in Blanding, Utah, a Mormon town where collecting Anasazi artifacts--pottery, baskets, rugs, flint projectile points, sandals, pendants, beads, effigies, and slate atlatl weights (also called banner stones)--has been a popular hobby for more than a hundred years. Collectors swept up in the SWAT raids that morning included the town's only physician and his wife; a high school math teacher whose brother was San Juan County Sheriff; and 12 others. More than half of the arrestees, prominent member of the community, were over 60 years old.

     The day following the heavily armed home invasions, residents of San Juan County were shocked to learn that Dr. James D. Redd, the 60-year-old Blanding physician who had been indicted on one count of theft of Indian tribal property (his wife faced 7 felony counts), had killed himself. A beloved doctor who still made house calls, Dr. Redd's suicide intensified the anti-government feelings in the town. (In 1986, there had been a similar SWAT raid of collectors' homes in Blanding. The federal government failed to prosecute anyone in that case, but hundreds of Anasazi pots were seized, and none of them returned.)

     A week after the four corners SWAT raids, an ARPA arrestee from Durango, Colorado, a 56-year-old collector on the periphery of the federal investigation, also committed suicide. By now, residents of the region, and artifact collectors and dealers across the country, were outraged by what they considered Gestapo-like tactics in the enforcement of the federal archaeological protection law.

The Snitch

     The federal investigation that led to the four corners SWAT raids, the most extensive ARPA case in history, began in 2006 when Ted C. Gardiner, a former Salt Lake City area antiques dealer and collector of prehistoric Native American artifacts, approached the FBI. Gardiner offered to use his online antiques business to gather evidence against collectors and dealers he said had been trafficking in artifacts illegally taken from federal and tribal lands in Utah, Colorado, New Mexico, and Arizona. The FBI paid the 48-year-old "confidential human source" an initial fee of $10,000 followed by monthly payments of $7,500. Between March 1, 2007 and October 8, 2008, Gardiner, the former owner and CEO of a Utah based grocery story chain founded by his grandfather, clandestinely audio and video recorded 132 telephone and in-person conversations with 22 artifact collectors and a half dozen dealers. (On the day of the SWAT raids, FBI agents had searched the homes of four prominent artifact dealers in Santa Fe, New Mexico, the hub of the Anasazi artifact trade. Although none of these men were indicted, the agents confiscated artifacts from one dealer.)

     During his undercover investigation, Gardiner, equipped with a hidden video camera, accompanied a handful of collectors on artifact digging excursions on federal land. In addition to the $335,000 the FBI paid to the informant to buy 256 artifacts--sandals, blanket fragments, woven baskets, pottery, pipes, Clovis points, stone axes, flint knives, prayer sticks, pendants and other high-item pieces--they gave him another $162,000 to cover his expenses.

     On March 1, 2010, Gardiner, after have been exposed as the FBI's undercover informant by the local media, fatally shot himself in the head. The alcoholic, and former drug addict had been despondent over the previous two case-related suicides, and anxious about facing the collectors and dealers he had betrayed. Following Gardiner's suicide, the federal prosecutor in Utah assured reporters that the ARPA cases would not be adversely affected by the undercover operative's sudden death.

    In 2011 and 2012, all of the ARPA defendants, in exchange for sentences of probation, pleaded guilty.


Comments by Jay Redd, Dr.James Redd's Son


     On August 16, 2012, Jay Redd, in an email to the author, defended his parents, described the overkill nature of the federal raid, and set the record straight on some important details. The following are excerpts from his informative and credible email:

     My mom was a collector and not a trafficker, but again, my dad was neither. Everyone who knows my dad knows he did not collect artifacts. The feds watched him for two and a half years and they also knew he did not collect artifacts but that did not fit the mold the feds had planned for my dad to fit into....

     The reason they arrested Dr. Redd on June 10, 2009 was because he picked up off the surface of the ground a tiny little shell bead the feds call an "effigy bird pendent." My dad did not try to sell or trade the tiny little item to the informant or anyone else, he just showed it to him....The true market value of the bead my dad was arrested for is $75 but the informant and the feds inflated the price of it by over 1250 percent and said it was worth $1,000. Now why did they inflate the value? Because the felony charge they gave Dr. Redd required that the item in question, taken from Reservation land, must be valued at over $1,000 in order to qualify as a felony. Anything valued less than $1,000 would be a misdemeanor. Well, my dad would not have lost his medical license over a misdemeanor, but with a felony he would have and that is what the feds were shooting for....

     The treatment the feds imposed on my dad is beyond disgusting. On June 10, 2009 Dr. Redd was returning home from work early in the morning. As he drove up to his house he saw the numerous black SUVs parked there. As he was pulling up to the driveway one of the agents pointed to his FBI hat, drew his gun and pointed it at him. My dad stopped the vehicle and they yanked him from his car at gunpoint, handcuffed him and sat him down in his garage as they milled about him with their weapons. I wonder what the feds said when he requested to speak to his attorney....One of the head agents in charge that day boasted there were 80 agents at my parents house at one time and throughout the day (they searched the house for 11 1/2 hours). A total of 140 agents visited the house....The agent also said there were seven snipers on my parent's roof for hours and hours waiting for my brother to go down to the house....The day after the raid a resident from Blanding told me he watched my parent's house from a distance with his binoculars and said he saw the agents on the roof not moving for hours and hours....

     Concerning the undercover informant Ted Gardiner: If you read the police report and other articles about his suicide you will see that Ted said he "felt guilty for killing two people." Why would an undercover informant who was supposedly doing his job properly to rid the U.S. of evil underground criminals, feel guilty for the actions of those he caught in secret, illegal, underground activity. Could it be because he made friends with my dad who gave him medical advice on his ankle injury, encouraged him a few times to quit smoking to improve his health, invited him to the LDS church function that night....Ted knew he had a major part in Dr. Redd's death and after nine months of torment he could not take it anymore and therefore put a bullet in his head.  

The Migratory Bird Treaty Act And The Federal Bird Feather Cops

The Illegal Possession of Feathers

     Because, in the early 20 century, birds were slaughtered to feather women's hats, congress, in 1918, passed the Migratory Bird Treaty Act (MBTA) to protect every bird in America except the house sparrow, feral pigeon, common starling, and non-migratory game birds such as pheasants, gray partridges, and the sage grouse. The MBTA prohibits the hunting, capture or killing of the protected birds. Moreover, one cannot legally purchase, sell, or even possess any feather, body part, nest, or egg of any bird covered by the act. (The  MBTA covers 83 percent of all birds that live in the United States.)

Chuck Smith and the Federal Bird Cops

     Chuck Smith (not his real name), is a friend who, in the early 1990s, innocently got caught up in a petty MBTA case that scared the hell out of him. Chuck, a respected and popular high school anthropology teacher specializing in the history of the American Indian, answered a bargain bulletin ad placed by a man selling Indian relics. From this seller, a man named Phil (not really), Chuck purchased a 1920s era white, buckskin outfit that had been worn ceremonially by members of the Blackfoot tribe. He paid $1,500 for the full-dress, beaded, Indian outfit. Two days after the sale, Phil called and offered to give Chuck the headdress that went with the buckskin apparel. The war bonnet contained 25 white, dark-tipped feathers from a bald eagle. Chuck accepted the offer. He planned to exhibit these items as teaching aids, and had no idea that by accepting the eagle-feathered Blackfoot headdress, he had broken a federal law. Had Chuck known it was against the law to possess bald eagle feathers, he would not have taken the bonnet home. (A vast majority of Americans have no idea that most bird feathers are federal contraband.)

     Not long after Chuck made the Blackfoot buckskin purchase, and accepted the bonnet as a gift, a pair of undercover agents with the Department of Interior visited the seller, Phil. The agents said they were responding to Phil's Indian relics ad. After buying an Indian neckless made of eagle claws, the feds flashed their badges and arrested Phil for violation of the MBTA. When the agents asked Phil if he had sold items containing feathers to anyone else, he told them about Chuck's Blackfoot headdress.

     Phil's information brought the federal agents, unannounced, to Chuck's house. They identified themselves, then asked if he still possessed the eagle feathered bonnet. Chuck said yes, it had been a gift from Phil. The agents informed Chuck that he had committed a federal crime under the MBTA, an offense that could cost him ten of thousands of dollars in fines, and even some time in prison. Terrified, and worried that the fines and a prison stretch would bankrupt him, and ruin his career as a high school teacher, Chuck volunteered the information that he possessed other Indian artifacts that contained bird feathers.

     The shaken school teacher led the federal agents to an upstairs bedroom where they seized a rawhide Indian shield bearing a clump of crow feathers, and a shaman's rattle with screech owl feathers. In his garage, Chuck turned over two owl feathers he had found along a road after the bird had been hit by a car. In addition to the general MBTA fine, Chuck could be fined an extra $500 for each feather type he had possessed. The additional fines would add up to $2,000. Before leaving Chuck's house that day, the agents said they would tell the assistant United States attorney (AUSA) handling the case that he had been very cooperative. This did not ease Chuck's anxiety. He envisioned himself in prison stripes.

     The next several weeks Chuck went through hell as he waited to find out what would happen to him. Finally, one of the agents called him with the news that the AUSA was so thrilled to be handling a case that did not involve drugs, she was giving him a huge break. If he paid a fine of just $500, the case would be history. Chuck mailed in the money, and went on with his life. But memories of his ordeal lingered for years.

Bald Eagles: A License to Kill

     In 1995, the federal government classified the bald eagle an endangered species. Twelve years later, the bird was re-classified as a threatened species. Even so, the bald eagle has remained under the protection of the federal Bald and Golden Eagle Protection Act. Under this law it is a crime, without a government permit, to capture, kill, and/or possess a bald or golden eagle, or any part of the bird. Violators face a maximum fine of $100,000, and two years in prison.

     In 2011, the 9,600-member Arapaho tribe on the Wind River Indian reservation in west-central Wyoming, after being refused a permit to kill two bald eagles for religious purposes, filed a federal lawsuit. (Native Americans can legally acquire eagle feathers and carcasses from a federal repository of such items.) On March 9, 2012, the U. S. Fish & Wildlife Service granted the permit.

     The reaction to the permit decision from the National Autobon Society, conservation groups, and animal rights activists, was muted. Because they were afraid to criticize Native Americans, politicians were also quiet. Over the years, dozens of non-Native Americans have gone to prison for killing bald and golden eagles. My friend Chuck could have gone to prison for merely possessing eagle feathers. He was not happy with the decision to allow members of the Arapaho tribe to kill a pair of these protected birds. But like most people, he kept his opinion to himself. Perhaps Chuck was worried that criticizing Native Americans might be a federal crime. The retired high school teacher was not taking any chances with the enormous prosecution power of the federal government. 

Criminal Justice Quote: Raiding FBI Agents Paw Through Old Man's Artifact Collection

     Dozens of FBI agents and police cars have descended upon the Indiana home of 91-year-old Donald Miller, a world traveler with a massive rare artifacts collection. The raid was in response to government concerns that Miller's collection may violate international treaties. [And we thought terrorism was a problem. Thank God for the FBI watching out for us.]

     Mr. Miller is a popular figure in the Rush County, Indiana community, and his collection has been featured in the local newspaper. Neighbors say that he is a kind old man with a fascinating life story: He worked on the Manhattan Project [the development of the atomic bomb] and visited more than 200 countries….Miller claims that he acquired the items legitimately, by bartering for them. He has always been willing to show visitors his collection.

     But the FBI thinks his collection might violate state and federal laws, as well as international treaties. Agents arrived at the house on April 2, 2014, sorting through the artifacts and trying to determine how each was acquired. It is unknown whether Miller will face criminal charges.

     Members of the community told reporters that Mr. Miller is an icon and his collection a historical landmark. "Leave the old man alone!" said Andi Essex, whose company did work on Miller's house. "He's done so much for people." Essex said she was amazed by Miller's collection when she first saw it. She asked if she could bring her grandfather to the house to see it, and Miller enthusiastically agreed….

     The collection includes a human skeleton and a piece of a Nazi bunker, according to Essex.

Robby Soave, "Your Tax Dollars at Work: FBI Raids 91-Year-Old Man's Rare Artifact Collection," The Daily Caller, April 4, 2014