Preservation Magazine

The InsideManGoing Undercover to Protect the

Nation’s Public Lands

preservationnation.org/magazine

THE MAGAZ INE OF THE NAT IONAL TRUST FOR HISTOR IC PRESERVAT ION JANUARY|FEBRUARY 2010

THE LOSTGARDENSOF ALCATRAZ

HOW ONE FAMILYSAVED AVERMONT TOWN

IF YOU BUILD IT(ROUND),THEYWILL COME

00_COVER.BB.e$S:PM1210 11/24/09 6:32 PM Page 3

enneth Milettespent a half-century, practicallyhis entire life,

amassing what he said wasthe largest private collectionof Native American artifactsin the world. If you were afellow collector, and ifMilette knew you well, hemight have invited you to hishome in Newport, Wash.,and told you some of thestories behind this particulararrowhead or that spearpoint. He might have evenhinted that some artifacts hadbeen obtained illegally frompublic lands. You had to treadcarefully, but if you gained

Milette’s trust, you couldhave heard some rivetingstories. And you could havegazed upon riches.

Seven years ago, at the ageof 62, Milette decided to sell.He had a potential buyer inmind, a man namedThomas Hoyt, who hadresponded to a classified adMilette placed in a Spokanenewspaper. Hoyt said he wasan avid collector, interestedin both buying and selling.The two men chatted andlater kept in touch, buildinga relationship that resultedin an invitation for Hoyt tofly to Washington and seeMilette’s collection.

K

January |February 2010 P R E S E RVAT ION 17

“Thomas Hoyt,” alias for Todd Swain, a special agent with

the National Park Service who conducts undercover inves-

tigations into cultural resource crimes on public lands

16-23_publicLands_BB4.qxp:PM1210 11/24/09 7:32 PM Page 17

18 P R E S E RVAT ION January |February 2010

COURTESY

NPS

On Sept. 19, 2003, a cool and overcast morning, Hoytpulled into Milette’s driveway. He took note of the gray ranch-style house, the pearl-colored Cadillac, the free-standing garageand barn, the sprawling property with a pond out back. “I lovehunting arrowheads” even more than women or drinking,Milette said after an initial greeting, a cigarette dangling fromthe corner of his mouth.

Prehistoric stone tools, fossilized buffalo teeth, projectilepoints, beadwork, scrapers, arrow shafts with metal tradepoints, spear points—Hoyt marveled at the sheer number of arti-facts inside the first room that Milette showed him. Sacredburial pipes rested on the kitchen table. And in a closet, whereMilette showed him an eight-inch spear point, a Vietnam-eraAR15/M16 assault rifle and rounds of ammunition were visiblein the corner.

Milette then led Hoyt to the barn. Nearly every inch of that600-square-foot space was filled with artifacts—thousands ofthem—including a mounted collection of projectile pointsarranged to spell “Ken Milette.” Milette’s obsession with artifacts(“You’re the first person to touch these things in five, six thou-sand years,” he said) was evident. But what really caught Hoyt’sattention was a small piece of Styrofoam filled with ancientNative American teeth, which Milette said had come from thesite of a buffalo jump.

Back in the kitchen, Milette revealed his asking price for theentire collection: $1 million. Was Hoyt interested? Heck yes, Hoytwas interested, and he had the means, too, having just inheriteda large portfolio of stocks. But he couldn’t make a decision ofsuch magnitude without bringing his wife to see the collection.Thinking he was on the verge of a massive payday, Milette



rior statistics, during the past decade there were on average 840annual instances of looting on land owned by the National ParkService, Bureau of Land Management, Fish and Wildlife Serv-ice, and Forest Service—the four agencies that control nearly allthe public lands in this country.

Consider these recent high-profile cases. Last June, author-ities arrested a network of 23 alleged looters in southeasternUtah, charging them with robbing ancient Native Americanburial sites and selling burial masks, Anasazi pottery, a buffaloheaddress, and scores of other artifacts. In 2006, OperationBring’em Back, which resulted in the seizure of more than100,000 artifacts—including the skulls of two Native Americanchildren—culminated with the prosecution of seven looters.That case helped expose the remarkable rise of “twiggers,” so-called because they “tweak” (take methamphetamine) andthen dig for artifacts, which they sell to support their habit.

Most looters are tried under the Archaeological ResourcesProtection Act (ARPA), enacted in 1979 as a stronger alterna-tive to the 1906 Antiquities Act, which mandated a maximumpenalty of $500 and six months’ jail time. Despite ARPA’sstricter penalties (maximum $20,000 fine and two years’ impris-

onment for a first offense) and despite slowly evolving attitudesabout the importance of protecting America’s cultural heritage,looting remains as insidious and widespread a problem as it wasthree decades ago, says Martin McAllister, director of Archae-ological Resource Investigations, a consulting group based inMissoula, Mont.

As an archaeologist with the U.S. Forest Service in the 1970sand as a witness in countless ARPA cases, McAllister has seenentire chapters of American history vanish before they could bedocumented and analyzed. Looters tend to target Civil War bat-tlefields and prehistoric sites with Native American burials, hesays: “These sites are like a threatened or endangered species.They are going to go away. I don’t think people realize the alarm-ing rate at which we’re losing them.”

On average, the Bureau of Land Management (BLM) hasone ranger on patrol for approximately every million acres—astaggering statistic that gives insight into how underfunding hasleft western lands vulnerable to a host of threats (see sidebar onpage 23). The odds of catching someone in the act of lootingrival those of winning the Powerball. Some authorities have triedusing motion-activated cameras and other surveillance equip-ment at high-risk sites, but cameras malfunction or are stolen,

Kenneth Milette (opposite) spent more than a half-century assembling

what he said was the largest private collection of Native American arti-

facts in the world at his home in Newport, Wash. Many of the artifacts

in his collection, documented with the hand-written notes shown here,

were seized when federal agents executed a search warrant.

“There are zillions of things to learn about undercoverwork,zillions of things to learn

about archaeology,what facts you need to have to actually convict someone.”

—Todd Swain,special agentwith theNational Park Service

poured gin-and-tonics, and the two men clinked glasses.What Milette didn’t know was that Thomas Hoyt’s real

name was Todd Swain. And that he wasn’t an artifact collec-tor but a National Park Service special agent who investigatesillegal archaeological looting on public lands. Thanks to a tipreceived at the U.S. attorney’s office in Spokane, Swain, in part-nership with the FBI, had already begun investigating Milette,recording many hours of conversations. That night, afterleaving Milette’s house, Swain and an FBI agent met with a fed-eral prosecutor to plot their strategy. Even the slightest misstep,they knew, could bring the case against Milette to a crashinghalt, or worse, jeopardize Swain’s safety.

BY THE NUMBERS, LOOTING in this country is anepidemic. According to the most recent Department of the Inte-



and by most accounts their effectiveness has been limited.Stakeouts require extensive manpower and long hours and canbecome prohibitively expensive.

Undercover investigations, meanwhile, have emerged asone of the most effective ways to catch and prosecute looters.Enter Todd Swain, who during his nearly two decades as a spe-cial agent has found himself in some rather disturbing predica-ments, such as watching a looter dig up the remains of an1,800-year-old Native American woman on the Channel Islands,off the California coast.

Swain worked a variety of cases after becoming a specialagent—murder, rape, larceny. But his first looting case, in 1993,proved to be an awakening (and not just because of the awkwardscene that ensued when he went to a judge to get signed searchwarrants, only to discover that he had unwittingly targeted thejudge’s son-in-law). Our archaeological record, Swain realized,is a nonrenewable resource being continually plundered, butcatching the perpetrators entails solving a complicated andnuanced puzzle. For starters, prosecuting someone for an ARPAviolation often requires proof that artifacts came from public andnot private land (where it’s legal, in most states, to dig with anowner’s permission). Even in our age of forensic science, that’sno easy task, especially after suspects have disposed of incrim-inating evidence.

Perhaps it was the daunting nature of the challenge that hefound so alluring, but Swain had discovered his niche. Today he’sone of only a few special agents from land management agen-cies who focus exclusively on cultural resource crime. He hasspent years developing his specialized skill set, largely throughtrial and error. “There are zillions of things to learn aboutundercover work, zillions of things to learn about archaeology,what facts you need to have to actually convict someone,” hesays. “It’s very complicated when you’re not presented with acase on a silver platter.”

In a recent paper in the Yearbook of Cultural Property Law,Swain reported that approximately 15 percent of looting casesget solved. Moreover, based on data from three national parks,and other sites, he demonstrated that looting incidents often gounreported, either because rangers don’t file papers or becausethey log cases under different codes. “Should the federal gov-ernment actually look,” he wrote, “they will find that the truescope of the looting problem is staggering, that our shared cul-tural heritage is disappearing before our eyes.”

BY THE TIME SWAIN returned to Milette’s housewith his “wife,” whose true identity he doesn’t divulge, he hadalready begun to gather more evidence. Milette renewed his salespitch for the presumed Mrs. Hoyt, showing off projectile pointsmade by the Folsom people (Paleo-Indian hunter-gathererswho lived more than 10,000 years ago) and worth as much as$5,000 each. As they talked about the collection, Milette suddenly

dispensed with this stunner: He was concerned about entrap-ment. He had heard his share of worrying stories.

Swain’s heartbeat quickened ever so slightly. But the momentpassed. And slowly Milette began to reveal where he hadacquired his artifacts—for instance, the Lindenmeier site inColorado, a National Historic Landmark where evidence of theFolsom people was first discovered. There also were piecesfrom the Nez Perce and Coeur d’Alene reservations in Idaho; theSpokane reservation and Lake Roosevelt National Recreationarea in Washington; and Glacier National Park and LittleBighorn Battlefield National Monument in Montana.

Negotiations began in earnest. Milette agreed to sell his col-lection for $750,000 if an under-the-table transaction could bearranged. Swain agreed, with one condition: that Milette revealthe provenance of every artifact, ostensibly so that Swaincould record Milette’s amazing stories gathered over a lifetimeof collecting. In reality, Swain had struck upon an ingenious wayto assemble the evidence on which the case hinged.

On a Saturday less than two months later, Swain rented a 24-foot U-Haul truck, and with a linear mile of five-foot-high bub-ble wrap on hand, the packing commenced, Milette sharing thestories behind the artifacts as the “wives” helped wrap them. Itwas the first time Swain had met Milette’s wife, and her pres-ence added further complication; if she sensed anything amiss,the entire operation would be jeopardized. But the wivesbecame fast friends, watching videos of Mrs. Milette singingwith the Sweet Adelines, a barbershop ensemble.

For more about the National Trust’s advocacy for the preservation ofresources on public lands, go to PreservationNation.org/public-lands.



By Monday, with the packing almostcomplete, the Milettes met Swain at a bankin Deer Park, Wash., expecting to process awire transfer for $750,000. Instead, federalagents arrested Kenneth Milette. The author-ities, search warrants in hand, thendescended on his house. “It’s the only searchwarrant I’ve ever served where the majorityof items were prepackaged,” Swain says.

Temperatures were frigid as officialstransported the seized artifacts to a border-patrol warehouse in northern Washingtonabout the size of a six-car garage. Oh my God,it’s going to take a long time going through this,thought Chuck James, a Bureau of IndianAffairs archaeologist called in to assess the col-lection—no easy task given that the artifacts

came from so many different sites and were thrown randomlytogether. “It was like walking into a library with all the coversand title pages of the books removed,” he says.

James spent nearly 250 hours analyzing 1,487 artifacts.Though representing only a smallpercentage of Milette’s collection,these objects could definitively betraced to public lands. Jamesassessed the artifacts’ commercialvalue and restoration and repaircosts at $58,510.30. But that num-ber fails to reflect their true worth.Dozens of artifacts—projectilepoints, arrowheads, an unfired bul-let, a knife—came from the site ofCuster’s last stand at Little BighornBattlefield, for example. As Jamesnotes, studies have used archaeo-logical evidence from the site to understand the ebb and flowof the battle, the movements of the Seventh Cavalry and theSioux, Cheyenne, and Arapaho. “The potential to contributeto that kind of knowledge was totally lost,” he says, becausethe artifacts had been removed from their context. As anyarchaeologist will tell you, there is no way to assess the valueof such lost knowledge and no amount of money that can off-set the damage. Once a site has been compromised, there’s nogoing back.

“TO THE TRIBES, these places are sacred. This is theNative American people’s heritage, and it’s being raped,” says JimShearer, the lone archaeologist in BLM’s Barstow, Calif., fieldoffice. One autumn morning, Shearer takes me to a NativeAmerican habitation site affected by looting, a short drive northof Joshua Tree, Calif. A burly man with a mustache and a dia-mond earring, Shearer oversees 3.2 million acres—not aninsignificant chunk of southern California landscape.

Amid the boulders and stone outcroppings that punctuatethe otherwise flat desert landscape, a scene framed by distantmountains, a series of massive holes disrupts the stark beauty.Looters first descended on the site in the 1970s and may haveused heavy equipment to dig, given the size of the holes. It tooktwo decades for authorities to discover the crime—anotherindication that the scope of the looting epidemic has beenvastly underestimated.

It’s Shearer’s first trip here after four years on the job (he onlyrecently heard about the looting), and he says that not much isknown about the site. The Mojave, Serrano, and Chemehueviall populated the region. They probably lived here seasonally,ascending into the mountains at other times to hunt mountainsheep and jackrabbits. As we walk around, Shearer discovers asherd of Mojave buffware, a common type of pottery, and ametate, a stone used to grind seeds and other food. These piecesof archaeological evidence have been overlooked by looters;what’s conspicuous, though, is how the site has been dam-aged. “It kind of makes me sick to my stomach,” he says.“There is a lot of knowledge that’s being lost.”

In Shearer’s white Jeep, we head toanother site, navigating a winding dirtroad into remote country around theOrd and Rodman mountains, nearBarstow—land that’s also adminis-tered by BLM. A sign marking theentrance to the site describes the his-tory here, but it’s illegible, riddledwith bullet holes—an emblem,Shearer says, of how some people feelabout the government’s presence onwestern lands.

Ahead, we enter a small canyon,carved out of an old lava flow by a

river, now dry. Hundreds of petroglyphs, some possibly drawnby Native Americans more than 10,000 years ago, cover the basaltwalls: squiggly lines, human-shaped figures, bighorn sheep.Shearer thinks the art may have been the work of shamans.We’re not in some museum, but in an outdoor cathedral of sorts,the exact spot where generations of Native Americans lived, andthese delicate and beguiling symbols on the walls of rock areremnants of a history that began long before Columbus set sailfrom Spain. Standing in the canyon, shielded from the wind, one

Opposite: Grave markers of Seventh Cavalry

soldiers at Little Bighorn Battlefield National Mon-

ument in Montana, one of the sites fromwhich

Milette’s collection of artifacts came. Below: a

defaced sign describing a petroglyph site on BLM

land near Barstow, Calif.

CORBIS



senses not only a deep connection to the past but also a profoundfeeling of calm.

Shearer often comes here alone to ponder the meaning ofthe art. (Theories abound. The wiggly line motifs may have beenassociated with shaman rainmaking practices, though Shearerthinks they’re merely art for art’s sake.) And he sees damage hereof varying degrees, not least of which was caused by the Skipsand the Mikes who scrawled their names amid the petroglyphs.“It’s like writing so-and-so loves so-and-so right across a presi-dent’s face on Mount Rushmore,” Shearer says.

He points out sections where looters have actually stolen pet-roglyphs, chiseling out slabs of rock. Any magic conjured up bycontemplating these works of art dissipates the moment younotice such violations.

How to stem the tide of looting? Shearer notes that the Cal-ifornia Archaeological Site Stewardship Program, which assignsvolunteers to sites and trains them to watch for illicit activity, hasseen success. And amateur enthusiasts eager to get their handsdirty can participate in archaeology programs sponsored by thepark service and other agencies as part of a broader effort to edu-cate the public about the importance of protecting public landsand preserving ancient resources.

Changing deep-set attitudes, however, may prove difficult.Even though the Antiquities Act was enacted more than a cen-tury ago, looting cases have only started to be brought with anyregularity in the last three decades. And that’s sparked outrageamong many long-time residents who decry a Big Brother-like

intrusion into something they’ve done their entire lives.The question, says Barbara Pahl, regional director of the

National Trust for Historic Preservation’s mountains/plainsoffice, is how to convince people that digging on a NativeAmerican burial site is no different from disturbing colonialgraves in Jamestown. And that digging up artifacts and remov-ing them from their original context is tantamount “to remov-ing a one-of-a-kind book from a library. The book’s gone, andyou’ll never know the lessons it contained.”

Martin McAllister, whose consulting firm offers ARPAclasses to educate prosecutors, law enforcement officers, andarchaeologists on the nuances of the law, says market forcesremain a significant part of the problem. So long as the demandfor artifacts remains strong (German collectors, for example,have a penchant for Native American objects), and so long as theodds of getting caught remain slim, major commercial looters,especially, will continue to ply their trade. One thing’s for sure:The status quo is unsustainable.

ON DEC. 17, 2008, as a raging snowstorm broughtdowntown Spokane to a standstill, Kenneth Milette sat in awood-paneled federal courtroom for his sentencing hearing.Charged with seven counts, including trafficking in archaeo-logical resources and Native American human remains, he hadpleaded guilty to four as part of a plea agreement. Wearing adark suit and cowboy boots, his silver belt buckle prominent,Milette appeared subdued, his head bowed. His wife looked on,

At a petroglyph site near the Ord and Rodmanmountains, looters have chiseled out sections of rock art. Jim Shearer, a BLM archaeologist, says he’s

hard-pressed to think of a petroglyph site in southern California that hasn’t been vandalized. Above, he examines a potsherd at a looted site.



her expression muted. “I just want tosay how sorry I am,” Milette said to thejudge. “I didn’t want this to happen. I’msorry if I caused any harm to anyone.”His sentence: $10,000 in restitution tobe paid to the National Park Founda-tion, six months’ house arrest, andthree years’ probation, the judge show-ing leniency because of Milette’s ageand remorse. (Milette did not respondto an interview request. The report-ing for this story relied on documentsrelated to the case, including the under-cover tapes and the search warrant.)

Downstairs, in the federal prose-cutor’s office, Tom Hopkins, then aU.S. district attorney, said the casewould serve as a deterrent: “I think itwas a fair and just result. When we domake a case—and they are hard tomake—it’s important to followthrough and push it to a conviction, to

send a message that this is important for the American peopleto protect these resources.”

Nearly a year later in that same courthouse, authoritiescomplied with the federal Native American Graves Protectionand Repatriation Act and returned artifacts to the Native Amer-ican tribes affected by the looting, including the Spokane tribeand the Nez Perce. Some of the items, including an eight-foot-long bead necklace that was likely part of a burial, would be cer-emonially reinterred. Larry Greene Jr., a tribal executive of theNez Perce, expressed gratitude for the return of the artifacts andforgiveness for Milette’s actions, though he couldn’t help think-ing that the sentence amounted to a mere slap on the wrist. “It’sleft a sour taste, not only for myself but for the tribal member-ship,” he said of the looting. “I don’t think anyone would wanttheir great-grandmother’s remains to be disturbed.”

As for Todd Swain, the next undercover investigation awaits.Operation Indian Rocks, a high-profile case that resulted in theseizure of more than 11,000 artifacts and the prosecution of aring of five looters, has given him a host of new targets to pur-sue. For the past four years, he has worked his way from thelooters into the wider network of artifact trafficking, the wayinvestigators in a drug case may start with a low-level dealer andwork their way up the chain, in the hopes of identifying a majorsupplier.

Todd Swain is a lot of things—brave, diligent, resilient in theface of long odds. But perhaps most of all, he’s patient. Thesecases take time, he says, just as it will take time for attitudes aboutour cultural resources to evolve. In the meantime, he’s gotwork to do.

Protecting theWest:aWay Forward

Looting is only one of a host of threats to ourculturally significant public lands. Off-roadvehicle use and the creation of inappropriate

new trails have severely damaged historic sites.Energy projects—the development of gas wells,transmission lines, access roads, and most recently,solar and wind farms—threaten historic landscapesand archaeological resources that have yet to besurveyed or catalogued. Increased historic site visi-tation by a public poorly educated in proper eti-quette leads to damage and vandalism.

The National Trust for Historic Preservation hastaken bold steps to protect our cherished land-scapes. Recently, the National Trust joined a coali-tion of environmental groups to bring a success-ful legal challenge against oil and gas leases thatBLM was granting near Utah’s Nine Mile Canyon,one of the densest rock art sites in the world. TheDepartment of the Interior has now called for amoratorium on most of the leases, hoping toreduce the number of large trucks kicking updust and debris, which endanger the art.

In a report just submitted to the Secretary ofthe Interior, the National Trust also called for bet-ter stewardship of America’s western lands. InBLM’s Monticello field office in southeasternUtah, the report notes, the cultural resources pro-gram gets a scant 4.6 cents of funding per acre.BLM, meanwhile, has surveyed just six to sevenpercent of its approximately 258 million acresand needs more specialists to help identifyarchaeological sites and other resources beforethey’re damaged.

The National Trust is urging Congress toincrease BLM funding from $15.6 million to $50.6million over the next five years. Additional fundingwould help BLM and other agencies educatevisitors, stabilize and restore damaged landmarks,and hire more rangers and law enforcement offi-cials to guard against vandals and looters. By sur-veying sites, more effective plans can be imple-mented for energy and other projects, ensuringthat the nation’s priceless cultural heritage doesn’tvanish before it’s even been documented. —E.W.


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