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Protecting the Past

Interview with Wayne Dance Assistant U.S. Attorney

Ken Verdoia: Let's begin with this premise. The Antiquities Act has been on the books for over a hundred years. How would you characterize the enforcement efforts in the first seventy-five years of the act's existence?

Wayne Dance: The Antiquities Act was an act that in 1906…oh, actually next year will be the one hundredth anniversary…and it was the first major piece of federal legislation to protect cultural resources on public lands. It actually was enacted some twenty years after the modern discovery of Mesa Verde. And during that twenty year period, as we all know, there was a tremendous amount of excavations, particularly in the southwest, and the removal of vast quantities of artifacts and cultural resources, primarily to the eastern part of the United States and much of that went to Europe and has never been returned. But yet, to answer specifically your question on the Antiquities Act, once we did have that federal law, unfortunately it wasn't enforced to the extent that it should have been. There was an under-enforcement, due to many reasons, certainly the attitudes of the general public and even those responsible for enforcing the Antiquities Act were not fully in tune with it's purpose and objectives. And so in that period of time, from 1906 until the 1970s, there was relatively little enforcement of the Antiquities Act in terms of its criminal provisions.

Ken Verdoia: And now here we are in the 21st century and it's abundantly clear that we're in a new era, a new era of appreciation, a new era of enforcement and prosecution where the Antiquities Act and subsequent federal legislation are putting more teeth and more emphasis on this. For the layperson, help us understand this new era and what makes it so much more significant in recognizing the value of these antiquities.

Wayne Dance: Yes Ken. It really began in earnest in the 1960s with the legislation known as the National Historic Preservation Act, and that gave important protection both in the civil context of protecting historic resources and historic properties. And then, more importantly as to criminal provisions, we had the Archaeological Resources Protection Act of 1979 and that came about because of congress realizing that the Antiquities Act was not providing the adequate protection to cultural heritage resources on public lands. And this was a dramatic increase in the level of priority, given to cultural heritage protection, whereas a violation of the Antiquities Act was only a petty offense, the provisions of ARPA, as we call it contained both felony and misdemeanor criminal sanctions for violations of archaeological resources on public and Indian lands. And so this was a major step forward in our society stating through it's representative government that we were going to give a higher priority to the protection of cultural heritage preservation and to properly punish those who violate that law.

Ken Verdoia: Legislative intent is one thing, but the establishment of priorities in any law office will truly give meaning and purpose to that legislative intent. And it seems that in this office there was an establishment of priorities that said "This matters, let's be aggressive."

Wayne Dance: Yes Ken, this office as you refer to it, the U.S. Attorney's office for the district of Utah has been the leader in this country in the protection of archaeological resources from a criminal prosecution standpoint. We have prosecuted, in the time period that I've been handling these cases over the last 13 or 14 years, more cases than any other district in the country. And the reason for that is, as you say, it's a matter of both priorities and perspective. We have a wealth, an abundance of wonderful cultural resources in this state and we decided in the early '90s that we were going to give higher priority to this type of crime compared to what had been done in the past, because it is a serious crime to damage, in any way, cultural heritage resources. And consequently we have taken this matter very seriously and as a result we have over 40 convictions for these crimes, about three fourths of which are felony convictions.

Ken Verdoia: How do you get the public sentiment to match this level of awareness, to bring them along to recognize the unique value of these resources and that they can't be taken?

Wayne Dance: Well we do it through what our responsibility is, and that is enforcing in an appropriate way the federal laws and in this case of course we're talking about the federal laws protecting these resources. Now we have decided in this office and in particular Paul Warner, the United States Attorney, that we will give the necessary resources to appropriately, not only apprehend and punish those who violate these laws, but in reference to your question, the most important aspect of our work is not that punishment of the individual violator, but using that particular case and that prosecution as a means of not only spreading a message of deterrence, don't do this, but more broadly educating the public that it is important to preserve our cultural heritage.

And it's only through that educational effort that what we do is a small part of the education effort, but it's an important part, and what you are doing here, KUED with wonderful documentaries like the one that we are working on right now, is so important to educate the public to change that generational attitude that you refer to. I have thought of it as an attitude that the vast public lands, particularly those in the west, are everyone's extended backyard, and you can go out and do whatever it is you want to do, take whatever it is you want to take. That attitude is certainly changing, and it's changing because of public education and public knowledge. And it's everyone's public lands. It's not any individual's or any group of individuals, but it belongs to everyone, but not to any particular person for them to do what they wish to do and gradually we are moving along this long road of enlightenment to better appreciate the importance of protecting our cultural heritage.

Ken Verdoia: When you first started to move into this realm, were you surprised at the big business nature of the trafficking of artifacts?

Wayne Dance: Yes, I was initially surprised, but then I learned quickly that the driving force behind much of this type of crime is money, as unfortunately it is with many types of crime. But I do want to emphasize that motivation if it's commercial motivation, by a commercial looter like Earl Shumway, a great deal of damage is done. But if the motivation by the particular looter is one of just personal interest, a hobby, not for commercial purposes, the extent of damage is exactly the same. And so yes, it is important for us to stem the commercial aspects of cultural heritage crime, but I don't want anyone to believe that if the damage is done by a hobbyist that it's any less serious damage to our cultural heritage and our historical record.

Ken Verdoia: You brought up the name of Earl K. Shumway. Here was a man who was self admittedly a pot hunter of the first order, a generational adhering to the belief that I can go out and take this, a man who raided and looted and sold commercially...

Wayne Dance: …Who bragged that he began that career at the age of three under the tutelage of his father.

Ken Verdoia: And a scofflaw. A man who looked the media right in the eye and said, "I can get away with this. You can't catch me." Tell me why the prosecution of Earl K. Shumway was so important and help me understand the nuances of that prosecution as well.

Wayne Dance: Well, although Earl Shumway had been doing a great deal of damage to the cultural heritage of Utah in particular and the Four Corners area since he was very young, he really became a national figure, if you will, in the '80s when he looted a cache of over thirty prehistoric baskets and sold them for considerable amounts of money. And he was apprehended and prosecuted for that crime, but because he cooperated with the authorities in attempting to recover some of those looted and commercially sold baskets, he received what many viewed was an inappropriately low sentence, in fact he received probation. That should have been a warning and an incentive for most individuals that they got off light and to not engage in that conduct anymore. That of course was not the case with Earl Shumway.

He went right back to the same type of looting that he'd always done. Fortunately, we were able to identify him, prosecute him successfully in the mid '90s for several violations that became generally known as the helicopter case because two of the looted sites he reached in the wintertime of 1991 through the use of a helicopter, which he had scammed the helicopter company for the use of it, posing as a movie scout. And so, when he was ultimately convicted and sentenced, he received the longest prison sentence of any looter in the in the history of both ARPA and this country's federal laws protecting these resources. Over five years he served in prison, and that sent a very important message throughout the entire country that the authorities and in this case in particular the U.S. Attorney's office for the district of Utah would not tolerate this conduct and that he would be sentenced appropriately.

And so it was an uplift, I think it was an educational event as we've discussed earlier, for the general public, but it was an uplift for the investigators, the archaeologists, who investigate these types of crimes because even though we have the vast public lands and it's difficult to apprehend certainly all those or even a significant number of those who engage in this type of violation, it showed that when the proper amount of effort is put into it that we can be successful and stiff penalties are going to be paid by those who engage in this conduct.

Ken Verdoia: How would you characterize the role of Rudy Mauldin in this field?

Wayne Dance: Rudy Maulden has been a tremendous asset to the district of Utah and a great example to all law enforcement who have any responsibility in the area of cultural heritage resource. He works harder than most anyone I've ever dealt with and he is totally committed to doing whatever needs to be done to fully investigate these cases. He was involved in the the Shumway investigation, he's been involved in a number of cases that I have prosecuted as the chief investigator and he's an outstanding law enforcement officer.

Ken Verdoia: You are now involved in training prosecutors and investigators throughout the nation to understand ARPA. Is there a core value that you try to instill in these investigators, these law enforcement personnel, these potential prosecutors? What do you want them to take away from the training with you?

Wayne Dance: Well first of all it's…I took away from the very first training that I had in 1992 that started me on this particular specialty in federal prosecution and that was an awareness that I didn't have before, of the importance of cultural heritage preservation. I mean we think of it in general terms, but when it comes to making it a priority, I didn't have a full appreciation of the necessity of preserving what we have left. Obviously much has been looted, much has been lost over the past hundred years or more, but what we have remaining is so important for us to preserve and protect that cultural record that remains.

So that's one important message. The other one is not to be discouraged that we haven't progressed as far as we would like to in terms of this journey of enlightenment, that there's still more education that needs to be done to all aspects of our society, not just the general public, but those within positions of authority, whether they be investigators, whether they be prosecutors, even judges that, that these crimes are serious crimes and they need to be treated as such both in the investigation, the prosecution, and the sentencing phases of the criminal justice system. And so I try to convey to these students that there are grounds at times for being discouraged and that, like with most areas of education, we just try to move forward and accept that we have continuing challenges to pursue this important objective.

Ken Verdoia: There is a very sophisticated forensic aspect of investigating these cases and accumulating the chain of evidence, isn't there?

Wayne Dance: Well absolutely and if anyone still has the idea that unless they're caught digging at the archaeological site that they're going to be home free, let me tell them that that is not the case at all. The largest ARPA prosecution in this country occurred here in the district of Utah. It's known as the Porter Mesa Cave investigation and prosecution that resulted in the conviction of ten individuals for a total of about 18 felonies. That case took years to investigate, and it utilized the most sophisticated means…DNA analysis of cigarette butts, that had been picked up during the course of the investigation, dust masks that had been used by the looters and so forth, and other types of forensic evidence that allowed us to successfully prosecute this large number of individuals who had repeatedly over a long period of time looted this wonderful cave on the Manti La Salle National Forest and on this Porter Mesa Cave. And we did that, as I say, years after the looting had ceased and so it is not true that we just have to be lucky and come across somebody that happens to be looting. We have many different tools to utilize to apprehend those who commit these crimes.

Ken Verdoia: And yet there's nothing like having the eyes of the average citizen open out there on the rangeland as well.

Wayne Dance: Absolutely Ken. This is so important in this particular area of investigation because of the vast public lands. And the relatively meager resources in terms of those rangers and, and others that are patrolling the federal lands, so we have relied very heavily on public input. Of the twenty or so ARPA cases that I have prosecuted, about two thirds the investigation was generated, started, by a citizen report of one type or another to law enforcement. Critically important and that gets back to our discussion of public education. It's not just public education for the importance of them appreciating the value of preserving our cultural heritage, but it also has an important component that once the public understands that then when they see something occurring that they know to be wrong, they know to be unlawful, that a prompt report to law enforcement is very, very helpful, in fact it's even essential in most cases for us to then start the investigation. And we can use those many tools that we've talked about to successfully investigate the case, but we do depend very heavily on that initial public input.

Ken Verdoia: I'm going to ask you to respond to a couple of sentiments that have been thrown towards me. "All this is fine, but it's too late." "All the good sites have been looted, robbed, desecrated." "It's too little, too late."

Wayne Dance: Well, I think a classic example of the glass half full or half empty. Yes, there has been tremendous loss of the historic and cultural record in this country because of unauthorized excavations, lootings, thefts and so forth from the public and Indian lands. However, archaeologists are wonderful, inquisitive scientists that can go to sites that have been damaged, but there still remains a great deal of archaeological evidence, archaeological record there that unless the site has just been, you know, totally excavated, you know, by a backhoe or something, that there still remains, notwithstanding the potholes and so forth, the looter holes, that notwithstanding that, that there still remains cultural deposits there that can provide a type of information should that particular site be scientifically examined at some point. And of course the technology is advancing all the time and so some future excavation will offer a lot more potential for knowledge than what maybe acquired now through excavation. So yes we do need to preserve what is left. It's tragic that we have lost as much as we have, but we need to therefore make all the more effort to preserve and protect what is left.

Ken Verdoia: And so what's your reaction when you hear the announcement of a canyon such as Range Creek, which has the potential for housing up to 3000 reportedly untouched archaeological sites? What note does that strike in you?

Wayne Dance: Well, just great hope and excitement that, that in this particular area there has been what we would like to have seen for, for all of our archaeological sites and that is great pre-preservation, because the individuals responsible for that area did provide protection to those many, many sites and resources. So it's wonderful to have the news and the discovery, and now in the public domain the Range Creek multitude of sites.

Ken Verdoia: And yet it seems that it, it's also a call to arms that we be even more vigilant to make sure that it gets protected.

Wayne Dance: Oh absolutely, absolutely. Now that, it's moved from private protection to the need for public protection.

Ken Verdoia: Why is this worthy of the time of law enforcement officers? You were a crackerjack narcotics prosecutor. You earned a deserved reputation as being very, very effective in that realm. Why is this issue worthy of your time?

Wayne Dance: Archaeological resources, cultural resources are one of a kind. They're irreplaceable. They're not fungible items. And they certainly are not of the nature of illegal drugs that continue, unfortunately, to flow into this country because tragically there are those who are utilizing and providing a demand for those drugs. Cultural resources, once they are damaged, once they are stolen, are gone forever and that record of the history, of the peoples that lived where we live now. Yes, they didn't have a written history, they had a wonderful oral tradition and very significant cultural and ceremonial practices, but, but what we can learn about them will be what we can find in the remaining materials that they left behind. How did they live? What did they eat? How did they make their clothing? What was their social and political organization? What was their art? These critically important questions remain in the ground, on the rock art, as it's known, rock images that they left and so forth. And every time someone goes out and loots or damages these resources, it's gone forever. And so this is a very unique type of crime, very serious because the consequences are forever.