Outreach :: State Lands Permits :: Finders Keepers, Losers Weepers

One of the weaknesses of attempts to protect archeological sites from damage by relic collectors has always been the ambiguity embedded in the legal definition of the rights of collectors versus the rights of landowners. How do we draw the lines between the person who finds the object and the person who owns the land from which the object has been removed?

Unfortunately, we have all become at an early age very familiar with the adage: "Finders keepers, losers weepers." It is probably our first encounter, as young children, with what could best be described as ancient common law. The effectiveness of that unwritten law was driven home to us in every playground confrontation over a lost personal item, in which the claimant - the "finder" - usually successfully litigated his possession of the object by merely reiterating this elemental chant. Everyone seemed to immediately recognize the validity of his claim and we have all become "losers" at one time or another in the face of this exercise of common law.

It is perhaps this one common experience that has defined the attitudes of many - be they collectors or landowners or even governments - toward the recovery of individual and apparently isolated artifacts. While many readily accept that integrated archeological sites are protected from collectors by law, they see it as a different and somewhat transcendent set of laws that offers this protection - the regulations developed during the historic preservation movement of the 20th century.

But when it comes to an old wine bottle, a cannonball, a coin, or even a ships anchor, where it is an "object" not a "site" that is the focus of attention, all too often we hear the playground chant in the back of our minds again - "Finders keepers, losers weepers."

In fact, there is some basis in history for this assumption of collectors' rights to objects they dig up on the land of others, be it public or private. It is rooted in a misinterpreted and misapplied concept from twelfth-century England - the source of American common law for all intents and purposes - called "treasure trove".

"Treasure" in ancient England was essentially gold and silver. Later the concept was broadened to include rare jewels and coins, regardless of the metal. When some of these items of "treasure" were purposely secreted away, being buried in the ground or otherwise intentionally hidden, this assemblage of objects became "treasure trove". If one found such a trove of treasure, no matter if they owned the land on which is had been hidden or not, the rights to the find were vested in the King of the country, and neither the finder nor the landowner had any right to keep what had been found.

By and large the New England colonies adopted English common law. But when the United States became independent from English rule, it had to re-interpret this concept of "treasure trove", and for some unfathomable reason, it decided to convert the rights of the King into the rights of the collector, rather than the landowner. This, of course, was completely in error, but through the 19th and into the 20th century, the idea that somehow "treasure trove" was exempt from all other archeological protection law and regulation became nearly as embedded in our collective world view as the old "finders keepers.." rhyme.

But even if it had legal credence during that time, this right to collect and retain objects applied only to "treasure" in the narrowest sense (gold, silver, gems and coins) and did not apply at all to any other form of archeological materials. In all other matters, objects that had been detached from their creators and owners long enough to be seen essentially as part of the land, belonged exclusively to the owners of the land on which they were found, and collectors had absolutely no rights to these objects without the express permission of the landowners and the normal processes of gift and sale.

In recent years, state and federal courts have recognized the error of this mis-interpretation of the ancient concept of "treasure trove" and have amalgamated this category of artifact with all others, granting the landowner exclusive rights of all such materials, and eliminating the exemptions previously attached to objects of "treasure".

One aspect of this re-assertion of landowner's rights rests in the concept that lost or hidden items of property, where it was not the apparent intent of the original owner(s) of the objects to discard them, still belong to their owner(s). There is a concept of "stewardship" inherent in the landowner retaining these objects, pending the return of their rightful owners to claim them. Recently we have seen very old military artifacts, including ships, discovered deep in American lakes, successfully claimed by the countries that commissioned them, even though they were lost over 200 years ago and no attempts were ever made by the owners to find and recover them. Here the landowner - in this case the state having jurisdiction over these submerged lands - has performed a type of curation for the artifacts, perhaps unknowingly, and has had, in the end, no actual rights to them, even though they remained embedded in their lands for centuries.

In this latter case, neither the landowner nor the finder had any rights to own or possess these objects.

Collectors - or the "finders" of the old adage - do have certain well-defined rights when it comes to some types of recently lost or abandoned property. While the courts have not firmly attached a time limit to this sort of exercise, we may generally assume that the 50-year cut-off, applied to many historic resource definitions, may also apply here.

If recently lost or abandoned property, or even property purposely secreted and hidden by the owner, is found, regardless of on whose property it is found, the finder may claim that property for themselves. There are of course a variety of limitations made to that claim. First, a serious effort needs to be made to find the original owners, who, the law suggests, retain their ownership. For various types of property various time frames are imposed for this search to be accomplished. During this period, the property may have to be deposited with a neutral party, such as the police agency of the area. But if, at the end of the search period, the owner has not come forward, it is the collector, not the landowner, who has rights to the property.

The failure to set firm dates for the definition of historic property versus modern personal property will continue to lead to misunderstandings about this aspect of "finder keepers", and many of these cases will end up in disputes that may require courts to decide. Pending that, one may safely assume that anything that was deposited, lost or abandoned more than fifty years ago is to be considered archeological by nature, and that all such property belongs either to the original owner or the current landowner - but never to the collector.

We have come a long way in the sophistication of our legal process from "finders keepers, losers weepers". Unfortunately, for many - collector and landowner alike - the lessons learned on the school playground will continue to outweigh the lessons learned since in the classroom or the courtroom.

For a more detailed discussion of treasure trove and the law, see the following article: "The Slow Death of the Treasure Trove."


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