Last summer, I was involved in a small excavation in northern New Mexico for my dissertation project. When I give formal talks about our work, with lots of background information, people get excited about the research questions and how much we learned from just a month of work. At those times I feel like I’m making some progress as a public archaeologist, something that is very new to me. But in more casual conversations, it’s sometimes hard to get the excitement across. Folks are intrigued at first when I tell them we were excavating a thousand year old building that may have had as many as 100 rooms, but then I can see their interest dim a little as they realize how small our excavation actually was. It usually leads to two questions: First, “Are you going back next summer?” Second, “Wait, so you just reburied it all at the end?
Archaeologists understand that extensive, long-term excavations are neither necessary nor feasible in most places, that research funding is severely limited, that our labs are full of artifacts and samples that we may never have time to properly analyze, and that backfilling is the best way to preserve architecture and features. But that is not how the public often envisions archaeological research. To non-archaeologists, digging it all up and then reburying it makes no sense, and if you have an unexcavated 100-room structure, why would you only excavate a room or two?I have been thinking about these issues since I recently came across a court case from a few years ago where a similar kind of misunderstanding came into play. In 1991, a Texas landowner conveyed 2.5 acres of land to the Archaeological Conservancy, one of our most important archaeology preservation groups. The site near Leander, Texas is important for its Paleoindian history and artifacts; it is near the site of the so-called “Leanderthal Lady,” one of the oldest known burials in North America. In 1991, the Wilson Land and Cattle Company conveyed this small piece of land to the Conservancy. The owner wanted to honor his wife’s love of archaeology. The contract said that the land was being conveyed
predominantly to provide an archaeological laboratory for intermittent research excavations, restoration of Indian artifacts and habitats, exhibition of artifacts and restored habitats to the public or for any other archaeological purpose.
It also said that if the property was not used for such purposes, then ownership would automatically revert to the original owner. When the Conservancy made a deal with another landowner to swap a portion of the Wilson parcel for a larger and more archaeologically significant piece of land, the original owner claimed the land had reverted, and the dispute ended up in court.
The trial court reviewed evidence about what the parties meant when they wrote the contract, and about how the Conservancy had managed the land. It found that the Conservancy had not established any laboratory, visitor center or exhibits, and there had been no excavation or public access to the site. It concluded that the Archaeological Conservancy was not using the land for an archaeological purpose as the parties understood it at the time of contract. This despite argument and testimony about how important preservation of sites is to scientific archaeology.
Now, this was a private contract case, about what these parties were thinking when they wrote the “archaeological purpose” clause, so the court’s interpretation doesn’t go beyond this one case, and the proposed land swap was obviously a big part of the story. Ultimately—on appeal—the Archaeological Conservancy lost the case (and the land) on procedural grounds, not based on the archaeological purpose language. So if there’s a legal lesson here for archaeologists, it is to be honest and open, when speaking with landowners and other stakeholders, about what we actually intend to do and what we realistically can do.
But clearly the case is representative of the bigger void that archaeologists try to bridge all the time, between the public’s understanding and our own. Many of us have spoken to landowners about their interest in archaeological work on their land and quickly realized that the survey and nondestructive testing that we might envision as a first step is a far cry from the multi-year excavations, starting next summer, that they’d like to see. Or on the other hand we have met resistance to the idea that land has to be set aside to protect the archaeology even though no one is doing any actual work on the archaeology.
So, how to answer those related questions I get, about why we don’t go back and do more digging, why we backfill instead of leaving it open for people to visit? I have found that people do readily understand the challenges of preserving whatever has been exposed and the cost that would be involved. Working in the desert Southwest, the phrase “monsoon rainstorm” comes in handy to convey the threat of erosion. I explain how fortunate I was to have a little bit of grant funding and a crew of experienced volunteers, but that that can’t be maintained over multiple field seasons. I also talk about the months of labwork that are ahead of us to analyze the artifacts from even our small excavation.
Because we were working in a national monument, it’s also a good opportunity to talk to people about the National Park Service’s limited funding and the challenges it faces in just providing visitor services and basic upkeep, let alone taking on new preservation projects. I talk about how little research the parks can afford to do themselves, how rare and unusual our little dig was, and how it was only warranted because of very specific research questions that couldn’t be answered any other way.
I also usually try to explain something about the ethics and politics of excavating in places where descendant communities often object to disturbance of their ancestors’ sites. Most people seem to understand that concern well these days, and are happy to hear about everything we did to carry out our work in a respectful way. Sometimes I add that some indigenous groups feel that ancestral sites should be left to decay naturally instead of being artificially preserved, but that argument is harder to convey and doesn’t usually go over that well.
And then, sometimes, I try to explain that collecting data is more important than having something for visitors to see, but that also doesn’t really strike the right chord. That sounds like the archaeology is for us, the experts, not for mere tourists or amateurs like them, even though the people I speak to are often locals who have a much longer history with the local archaeology than I do.
One of the struggles of archaeology today is precisely this. We don’t want the GPS coordinates of archaeological sites online, we want to keep the ATVs off sensitive sites, we don’t like people picking up projectile points and sherds, we don’t want hordes of tourists visiting special and unprotected sites. Our interest in controlling access is really about preserving the archaeology (usually), but for some members of the public, it looks more like self-serving elitism and archaeologists staking their territory. And then we often don’t even do the kind of research that they expect of us, or we do the little dig and then backfill it, or we publish about it only in obscure reports or paywalled academic journals.
I started out my month as MAPA’s guest editor by talking about the uncertain future of American archaeology under a new administration that seems to be suspicious of both science and regulation. These questions of public communication are not unrelated to that. Many of us, I think, are going to be forced in the coming years to keep talking about what we do in ways that are intelligible and persuasive to the public, and to politicians who are hostile to much of what we take for granted. So I am finishing my stint as guest editor of the MAPA blog by challenging readers to think about how you answer the questions that we all hear about preservation versus excavation, stewardship of what has already been uncovered, doing more digging versus just enough to answer our questions, about letting people visit the site or planning the multi-year field school. This is old hat to many who have spent years thinking through these questions and engaging with them publicly, but the questions are becoming increasingly important to all of us.
 The appellate case citation is The Archaeological Conservancy v. Wilson Land and Cattle Company, No. 03-08-00061-cv, 2010 WL 1253576 (Tex. App. March 30, 2010). You can also read an amicus brief submitted jointly by the National Trust for Historic Preservation, the SAA and the AIA here, arguing against the notion that long-term preservation of an important archaeological site is not an “archaeological purpose.”
 For the record, a court going into evidence about what people meant when they wrote the contract is unusual. A contract is normally interpreted on its face—on what it actually says, not what the contracting parties meant to say. The court can only go into that question if it determines that the language is ambiguous, and evidently that is what the trial court did here.
About the Author: Michelle Turner is a PhD candidate at Binghamton University. She works on southwestern archaeology and is currently writing her dissertation about recent fieldwork at Aztec Ruins National Monument. She has a BA in International Studies from American University and a JD from the Vanderbilt University School of Law. Prior to starting her PhD, Michelle practiced law for about ten years, first at two large law firms and then as a clerk for a federal magistrate judge. In addition to her work in southwestern archaeology, Michelle also does research on cultural property law and repatriation efforts. Please note that this post is not intended as legal advice.