A friend of mine recently bought a farm with an Indian Mound/Burial
Site on it.  My question is:  Can an Indian Society/Group or State or
Gov. agency possibly try to claim or take this mound for historical or
cultural purposes?  The Historical Society has already called & asked
about making it an Indian Preservation.  The owner has declined the
offer, but has been told stories about Societies or Agencies taking
mounds from private owners.

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Request for Question Clarification by digsalot-ga on 20 Jun 2004 14:46 PDT

Protective laws dealing with cultural heritage vary from state to
state.  Sometimes not a lot, but the minor seeming differences in text
can make an enormous difference in the real world of claims.

What state is this mound in?  It may already be a recognized site of
archaeological significence.  Such sites are listed by most states but
not made public without a request for a specific location.  The reason
for the secrecy is to prevent looting, which has become a very major
problem in the US.

Looted artifacts from US archaeological sites are supporting an
illicit trade reaching into the tens of millions of dollars every
year.

In most states, there would be means where your friend could protect
the site, or have it protected by an agency, without losing title to
the property.

There are also methods by which the mound could be studied without
disturbing it at all by means of remote sensing.  The mound could also
be professionally excavated and restored to look untouched (unless
some large trees are involved)

In that case, in states, the mound owner is entitled to a percentage
of the find to do with as they see fit.  For the time being, NAGPRA
restrictions apply only to Native American archaeology sites on public
property.

The state where located is important.

Digs

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Request for Question Clarification by digsalot-ga on 20 Jun 2004 14:48 PDT

Note: - the first sentence in the last paragraph should read - "In 'many' states..."

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Clarification of Question by tngirl-ga on 20 Jun 2004 21:04 PDT

The State is Tennessee.  This mound is NOT a recognnized site of
archaeological significence. My friend after recently purchasing the
land has  been  contacted by both the archaeological society & the
historical society expressing interest in this mound.  They have
cleared the trees from the mound so that is now very obvious what it
is.  This has been a known Indian Mound in the local area for many,
many decades  But the mound has always been overgrown with trees &
brush.  Now that it has been cleared has been the only time that they
have known of any agenecy that has ever expressed any interest in the
mound.
  Now people are telling them that such agencies can take this mound
away from them and make it a preservation.  I have never heard of
this, but they are worried.
  All they want to do with the mound is sew it down with grass and let
it be.  But they do NOT want any society or agency trying to take it &
make a preservation or historical site of it.  Since this is privately
owned property, it is possible for an agency or society to do this
against their will??
  Just curious as to if they were other stories like this where the
state, Gov., an agency or society had tried or have done this.
                                   Thank You for Your Time

Hello there

Unless there are some special considerations involved, your friend's
land is safe.  Even under the "special" considerations I cover later,
ownership remains unchanged.

First are these protections under Tennessee Law:
"(a) It shall be deemed an act of trespass and a misdemeanor for any
persons, natural or corporate, to excavate and remove artifacts from
the private land of any owner without first obtaining the owner's
express permission.
(b) No person, corporation, partnership, association or any other
entity shall excavate, damage, vandalize, or remove any artifact from
or otherwise alter or deface any site listed in the Tennessee register
of archaeological sites without first obtaining landowner permission."

While it is flattering that these organizations contacted your friend
about the mound, they are private organizations with only a slender
link to the state and do not have the power to force anything.  The
two laws above protect you from any "forced" excavation or study by
either of these groups without consent.

There are some "special" considerations I mentioned which could call
for state intervention.  But that is "intervention" rather than the
seizure of a piece of private land.

One of these has to do with the Tennessee State Cemetery Law.  "Under
the new law, looting of Indian graves and the destruction of
prehistoric cemeteries are now illegal. "Termination of land use as
cemetery" procedures are used to excavate and relocate prehistoric
graves prior to site destruction." - - - The intervention would only
take place if your friend had decided to destroy the mound, build
something on top of it or decide to excavate on his own or through a
commercial firm.  Unless the mound were in danger, the terms found
here would not apply:
http://www.cr.nps.gov/seac/coping/5-moore.htm - You can read the whole
law if you wish.

After such an intervention to protect burials and artifacts from
immediate destruction, title to the land remains with the current
owner.

Covering the mound with grass and leaving it alone does not constitute
an immediate threat.

Another special circumstance would be if the mound were in the path of
a new roadway and the mound was taken by the state as part of the
right-of-way.  Then it would be formally excavated and studied by
stste archaeologists.

An indian mound on private property is just that, private property.

Now even though is not (officially) a recognized site of
archaeological significence, at least from what you know, the mere
fact it has been locally known as a mound for many years means that
'it is' on somebody's 'watch list.'

In relationship to the "immediate danger to artifacts" reasons for
intervention mentioned above, the removal of the trees would have been
a significent change.  That alone would have drawn attention from the
organizations you mentioned.  Their contact was for two main reasons.

The most important, was to discover if the removal of trees was the
precursor to additional work at the site, such as construction, etc. 
If they had found that to be the case, they would have involved the
state due to the cemetery law.

However, that does not entail a seizure or transfer of property.  It
merely means that certain procedures must be followed before
development can continue.

The removal of the trees could also have triggered the following:

Code Book: Tennessee Code 
Citation: §11- 6-111 
Section Title: Archeology: threatened site--contract with corporations
or organizations

"Authorizes the Division of Archeology to make a contract with any
corporation or organization for the conduct of archeology upon any
site, particularly sites threatened with damage or destruction by
public or private construction projects."  - - The term "private
construction projects" is what makes it applicable in your case.  The
removal of the trees would have constituted enough of a signal for
contact to be made and such contacts are usually made through
archaeological associations or historic societies.

Also, since the change of ownership seems fairly recent, one of the
things various archaeological societies, historical societies now do,
is watch for property transfers and try to make new owners understand
they have something of cultural value and some sort of contact often
follows.  It could be your friend is simply caught up in that cycle.

The power of a state or agency to seize land for the purpose of
archaeological preservation is so weak that most every state has to
depend on private donations of time and money to put together
acquisition funds then try and convince the owners to sell.

Your friends land is safe.  If anybody wants it, they have to buy it.

Search - Google
Terms - tennessee native american historic sites law, tennessee cemetery law
Personal experience as archaeologist

If I may clarify anything, please ask.

Cheers
Digsalot

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Clarification of Answer by digsalot-ga on 21 Jun 2004 22:20 PDT

Thank you for the kind words and the rating.

I just want to clarify one point and that is your statement that the
"researcher emailed" you.

The email notification for the clarification of the question came from
Google Answers after I had posted it.

I'm only making note of this because it is policy that there be no
direct contact between researchers and question askers and I didn't
want some to believe that such contact is permitted or had taken
place.

Once again, thank you for your kind words.

Digs

This has answered all my questions.  The researcher even emailed me
asking for more information ao that he/she could better answer my
question.
  My question was a complicated legal one which was very hard for me
to find a clear answer too.  Plus the answers I did find were in legal
terms & were hard for me to understand.
  This researcher not only found the answers...but also explained them
in a way that anyone could understand.
  This was my first experience with Google Answers.  It won't be my
last.  I highly recommend this service.  Thank You So Very Much!!
                                                          K. Milstead