Archaeology Magazine - September/October 1985 - 80

THE

FORUM

States
and
Shipwrecks,
the Courts
by Anne G. Giesecke
Duringthe last two years taxpayersin Florida, Georgia,Indiana,Iowa,Maryland,
Massachusetts,NewJersey,and Puerto Rico
have spent about $20 millionin Federal
Court arguingfor state, rather than Federal,
authorityto controlthe excavationof historicallyor culturallysignificantsites and to
manage historicshipwrecksfor the public
benefit.This issue of culturalresource management has roots far back in the nineteenth century.Duringthe 1800s, in recognitionof a growingantiquitiesmarket and
resultantsite disturbance,certain land sites
of national,militaryand prehistoricsignificance were placed under the protection of
the Federalgovernmentor privateorganizations.
Duringthe twentiethcenturyarchaeologistshave continuedto workwiththe public
and privatesectorsto study not only nationallysignificantsitesbut also the materialremainsof the lifeof the common man.
The market for antiquitieshas continued to
grow.Duringthe 1960s historicpreservation and the management of culturalresourcesbecame a recognizedcomponent
of the broader federalprogram for protectiveenvironmentallegislation.Allstates
developedor modifiedtheir environmental
and historicpreservationlawsto become
compatiblealthough not identicalwith
Federallegislation.
Duringthis same time, underwaterexplorationbegan a rapid expansion.New
technologiesmade oceans and other bodies
of wateraccessiblefor sport and recreation,
and Scuba(selfcontained underwater
breathingapparatus)divingbecamepopular.
Newaccessibilityled to the identificationof
new sites.For example,in Lake Champlain,
RevolutionaryWar ships sunk in Valcour
Bayand the Britishfleet destroyed during
the Warof 1812 in PlattsburgBaywere
listedas nationalhistoriclandmarksin
1960-61. In 1965 gold coinsthat washed
up on a beach in Floridaled to the location
of the 1715 Spanish Plate Fleet.The
anaerobicpreservationof materialsfrom
submergedsitesmade them particularly
valuableto the antiquitiesmarket as wellas
to archaeologists.
As newsiteswere locatedstates managed
historicshipwreckresources under their
historicpreservationlaws,evolvinga variety
of systemsto workwith differenttypes of
privatesector groups includingboth profit
and non-profitorganizations.The state systems workeduntil 1981, when the Federal
Court for the Southern Districtof Florida
ruled that Federaljurisdictionsuperseded
the state'sauthorityover historicshipwrecks.Battlelineswere drawn,generally
betweenstate archaeologistsand commercialtreasure salvors,each group arguing
for the rightto protect the historicshipwreckresource.This formulationof the
conflictobscuredthe real jurisdictional
question- betweenthe states and the
80

Archaeology

Federal Court.
Legislationhad been introduced in the
U.S.Congressas earlyas 1979 in response
to the developinglitigation.The earlybills
addressedthe Federalprotectionof historic
shipwrecks.In 1983 new legislationwas
introduced;by September 1984 the conflict
had been completelyand properlyredefinedas a jurisdictionalone, and a resource
embedded or buried in state submerged
land was defined as state property.
An overviewof what the states have been
doing to manage underwaterculturalresources and historicshipwrecksin particular was developed in 1983 by the author,
in cooperationwiththe NationalConference of State HistoricPreservationOfficers.
A summaryof that surveyfollows:
* The states spend about one percent of
their total preservationbudgets on surveys,evaluationand conservationof historicshipwreckmaterial.In 1983, 16 states
spent approximately$3,379,253 on these
activities.
* Twenty-one states reported some survey
work,totaling296,201 acres since 1967.
None of these figuresincludes Federal
activitieseither by the Corps of Engineers
or the NationalPark Service,two major
participantsin the evaluationof the
nation's historicshipwreckbase.
* A total of 671 shipwreckshave been
located and identifiedas historic,using
either state or Federalcriteria.In all,2,883
shipwreckshave been located:437 by
states,2,299 by sport diversand 147 by
salvors.Because the state's responsibility
is to manage the whole resource base, not
just any particularwreck,a number of
coastalstates have put their money into a
search of historicalrecords for historic
wrecks.For example,Virginia,Texasand
Californiahave each recorded information on more than 2,000 wrecksoffeach
of their coasts.Their next step willbe to
determine what materialremains of those
wrecksmay exist.
* State programshaveworkedcooperatively
with 1,513 divers.More than 6,320,100
visitorssaw displaysand projects that
resultedfromworkdone by23 of the states.
* In summary,the surveyof state expenditures on historicshipwrecksresulted in a
picture of cost-effective,but nascent, management of an important,hard-to-get-at
resource.
States want to be able to manage the
multiple-usedemands withintheir territorial
waters.Titleto historicshipwrecks,as
provided in the legislation,willassistin providingclear legalauthorityfor such management. Allstates have legislationand
programsto protect historicalarchaeological resources.In addition,since 1963 26
jurisdictionsin the United States have
passed specific,and remarkablysimilar,laws
affectingabandoned historicshipwrecks.It
is notable that no state (definedto include
US. territoriesand possessions)prohibits
sport divingon historicshipwrecks,and

most lawsprovidein some wayfor compensation for recoveryactivitiesundertakenby
privateparties.
The state as a multiple-usemanager of
its resourcesmust considerthree special
groups that have an interest in historic
shipwrecks.The largestgroup is the sport
divingcommunity,with approximatelytwo
millionmembers.The next largestis the
severalthousand membersof the archaeologicaland historicpreservationcommunities.The third group is composedof two to
20 professionaltreasure salvors.
Each group has a differentuse for the
resource.For the sport diver,the wrecks
are an important focusfor recreationaldiving;some diverslikemarked underwater
trailsexplainingthe wrecks,some like
wrecksundisturbedby modern man, and
others liketo collectartifactsfropiwrecks.
The diver'sdesire for unrestrictedaccessto
shipwrecksmay conflictwiththe treasure
salvor'sdesire for exclusiveuse of a wreck,
and the diver'srandom collectingof artifactsfromwrecksmay conflictwiththe
archaeologist'sconcern for ordered
collection.
To the archaeologist,shipwrecksare an
integralpart of the total materialcultural
resource base. Certain social,economic
and technologicalsystemsof the past are
reflectedin the patterned pieces of ship
and cargo spread across the ocean floor.
The treasure salvor'sgoal is primarilyeconomic;he wants to minimizethe cost of
recoveringgold,silveror artifactsthat have
a maximumcommercialvalue.
To deal withthese variousconcerns,H.R.
25 and S. 676, currentlybeforethe House
of Representativesand the Senate:
* willassert U.S.title and then transferto
the states titleto abandoned shipwrecks
that are: (1) substantiallyburied or embedded in submergedlands of a state; (2)
in corallineformationsprotected by the
state on submergedlands of a state;(3) on
submergedlands of a state when included
in or determined eligiblefor inclusionin
the NationalRegister;
* willspecifythat the Actwillnot affectany
suit filedbefore the date of enactment;
* willreaffirmFederal ownershipof abandoned shipwreckson Federallands;
* willdirectthe AdvisoryCouncilon Historic
Preservationto developnon-binding
guidelinesto assistthe states and the U.S.
Governmentin carryingout their responsibilitiesand to allowfor recreationalexplorationand privatesector recoveryof
shipwrecksites.
The proposed Federal legislationgives
the states clear authorityto control excavation of state land for the purpose of recovering shipwrecks,and assumes that the
stateswillcontinue their current protection
of historicshipwrecks.The proposed legislationwould also allowarchaeologists,
commercialsalvorsand sport diversto work
together in developingstate programs
whichfit the needs of the resourcesand
populationswithina state.
andsport
AnneG.Giesecke
, an archaeologist
diver; hasworkedon theissueofshipwreck
since1982and haspublishedseveral
legislation
articlesandpaperson thetopic.
Archaeology Magazine - September/October 1985

Table of Contents for the Digital Edition of Archaeology Magazine - September/October 1985
