If you have heard of the recent events (since last Fall) along Lewes Beach in Delaware it spotlights problems involving treasure hunting not only in Delaware but throughout the U.S. The problem has been in the re-definition of the word "treasure." Originally under England's Treasure Trove laws dating to the middle-ages treasure is defined simply as precious metels. Gold & silver, or items made from same are generally the most common things that were defined as treasure, however any precious metels under the law could be considered treasure.
During the mid-19th century the US adopted English common law to be used in American courts in cases where the US courts had no American laws to apply in civil cases. Thus Treasure Trove was introduced to the U.S. In the early 20th century 2 boys hired by a rancher to clean out animal pens discovered a cache of gold / silver coins. The rancher seized the find and gave nothing to the boys. Under Treasure Trove laws the parents of the boys filed a civil suit against the rancher in Oregon courts. Oregon (like every other state) had no Treasure Trove laws of it's own and by law adopted England's Treasure Trove law to decide the case. This was the 1st case in US courts to use Treasure Trove under English common law to decide a US case. The outcome was that the boys (parents) won 100% ownership to the treasure, the property owner got nothing.
Under the law the courts decision was just. The problem with Treasure Trove laws under English common law is that it failed to recognize the property owner as a legitimate claimant to the treasure. In our country where private property and private land ownership is a connor stone of our culture, Treasure Trove came under fire. A century later Treasure Trove exists today in about 6 states and I suspect when those laws are challenged in those states, Treasure Trove defined under the old English common law will likely be abolished. It should be noted that England re-wrote its Treasure Trove laws in 1998 and abolished the former common law.
I am of the opinion that the U.S. should have kept Treasure Trove and first re-defined the definition of "treasure" and recognized private property owners as a legitimate claimant to treasure found on their land. In the Oregon case as an example the split between the boys and rancher would've been 50/50. Unfortunately the loss of any legal definition of "treasure" has allowed the archaeological
community to attach treasure hunters to the list of looter, pot hunters, grave robbers and thieves of protected archaeological sites and human graves. As such the states are now passing their own laws re: treasure trove and frequently we are seeing the treasure hunter being cut out from being a legitimate claimant to what we find. Under these new laws such treasure along with cultural artifacts and grave items are being sold on the Black Market at tremendous prices. Likewise treasure hunters who do discover a site will not report it to the archaeological community or other authorities for fear of loosing their detectors, vehicles, even their homes in some cases, not to mention being arrested and prosecuted for a crime.
Historically anytime the government acts to restrict or outlaw that which is legitimate the Black Market is always there to step in and flourish while filling the void left by government with unreasonable laws. Having treasure defined under law also legitimizes treasure hunting and separates it from the illicit world of cultural theft, and the looting of human graves. If you research the 1998 changes in English Treasure Trove law you will find that treasure hunters and archaeology have come together in that country since no one fears
seizure and jail. The result is that treasure hunters are eager to report finds, which the archaeologist document and study. The item
found remains the property of the finder and the archaeologist are required to report to the finder the results of their studies of their finds. Today England's archaeologist claim the number of finds being reported by treasure hunters has increased unexpectedly to the
extent that they are swamped with reports of found artifacts. On the positive side these archaeologist have publicly stated that because of the new 1998 law treasure hunters are responsible for re-writing some of England's history.
We Americans must push for similar laws here to protect our hobby / profession and to separate treasure hunting from grave robbing and looting of protected archaeological sites.
The Hangman
