Who Owns This Part of the Past? The Cultural Heritage of Tall al-`Umayri, Jordan in Jeopardy

January 6, 2014 10:57 am by: Kaitlynn Category: Ancient Near East Today, ASOR, Cultural Heritage and Property 1 Comment A+ / A-

By: Douglas R. Clark, Center for Near Eastern Archaeology, La Sierra University

Fig. 1 – Aerial View of `Umayri (David Kennedy)

Is culturally significant land private or public property? What happens when a major, signature archaeological site is owned privately? Who owns this part of the past? How does one resolve competing claims of ownership and use?
Numerous archaeological sites in Jordan are privately owned, including Tall al-‘Umayri (fig. 1), located in central Jordan within the Madaba Plains Project research area. Begun in 1984 with permission from one of the major land owners, the ‘Umayri excavations have occurred virtually every other summer to the present. But the 2012 season may well have been the final one, this due to issues of land ownership. At a site boasting extremely well-preserved architectural remains from the Early Bronze Age through the Hellenistic period, how are competing claims of ownership by good citizens who hold legal title to the land and by citizens of the country of Jordan, indeed of the world, who hold moral title to its cultural heritage protected, preserved, promoted?
This report, delivered initially at the 2013 ASOR Annual Meeting in Baltimore, explored the wealth of well-preserved archaeological and architectural remains at ‘Umayri; the high property value of the land it occupies on the burgeoning southern outskirts of Amman; a listing of stakeholders and the dynamics governing them; a review of legal issues; a history of good-faith negotiations as well as convoluted conversations; an enumeration of educational opportunities for the site to become a protected, interactive archaeological park for the thousands of weekly visitors to the Amman and Ghamadan national parks surrounding the tell; economic potential; and measured options for resolving dilemmas over ownership and cultural heritage at Tall al-‘Umayri.
In 2011-12 a land-ownership dispute from one of the two major owners arose because of perceived property devaluation due to archaeological activity, resulting in a significant court settlement paid by the Department of Antiquities. The excavation team became aware of the suit about three weeks prior to the 2012 season, forcing the project to reconsider its options – quickly. A permit was granted to the team only on the condition that the 2012 season would be the final season at this very productive and promising site. This decision not only allowed the summer’s excavations to continue, it also provided a small window of opportunity for project directors to work quickly toward a resolution of the problem. One positive outcome of this pressing dilemma was the emerging clarity of our 2012 research design; if this in fact were the final season of excavation at `Umayri, we would need to bring our excavations into phase for a shutdown and would need to use all the technology available to us so that we could digitally record the site for posterity.
While everyone involved wanted excavation to continue and eagerly anticipated the establishment of an archaeological park at `Umayri, the legal and economic constraints under which the project was placed brought everything to a standstill. Hence the sharp edge to the question: Who owns this part of the past? Should legal land ownership trump moral ownership of Jordan’s cultural heritage at this site? Should the larger, more global obligation to protect and preserve archaeological data override private land ownership?

Fig. 2 – Early Bronze Age Dolmen

`Umayri boasts remarkably well preserve architectural remains. These include:
• An Early Bronze Age dolmen burial installation (fig. 2) which, while it had lost its megalithic capstone and door, still preserved the remains of 20 individuals and 19 artifacts, as well as surrounding plastered surfaces used evidently for memorial services. Nothing like this occurs among the thousands of dolmens known from southern Jordan, along the Mediterranean coast, and all the way up to the British Isles. Subsurface mapping technologies, the results still being processed, may show that `Umayri supported a dolmen field.
• A spectacular moat-rampart defense system from the Middle Bronze Age, protecting the site from external threats on the vulnerable western side (fig. 3).
• An extremely well preserved temple complex from the Late Bronze Age, which is represented poorly in most of central Jordan, complete with entry hall, main sanctuary, favissa, and two side rooms, some of the walls still standing 3 m high (fig.4).
• An emerging village of houses from `Umayri’s signature period of occupation, the Early Iron Age. Best known is the “four-room” building, one of five adjacent structures now exposed (fig. 5).
• The remains of a large Late Iron II administrative complex.
• Ceramic vessels from the Hellenistic period agricultural complex on the southern acropolis of the site (fig. 6).
Given surviving remains of this nature and extent, and given the potential of hundreds of other examples still awaiting excavation, how should the project move forward? How should it address the conflict between competing claims of ownership? If the project is to continue, if the currently exposed remains are to be preserved, if a best-practices approach to displaying and presenting the site is to be achieved (construction for which cannot happen unless the land is owned), how do we answer the question about who owns this part of the past?

Fig. 3 – `Umayri Western Defense System

In response to this question and others like it, the ASOR policy on preservation and protection is relevant, portions of which are cited here [emphasis provided in bold italics font]:
Statement of ASOR Policy on Preservation and Protection of Archaeological Resources
      As passed by the ASOR Board of Trustees
18 November 1995; modified 22 November 2003
I. Preamble
A. ASOR’s policy is based upon and derived from the principle that its primary responsibility is one of stewardship of the archaeological record. Stewards act as both caretakers and advocates. The archaeological record consists of archaeological sites, archaeological collections, records, and reports. It should be used for the benefit of all people, and not be treated as a commodity to be exploited for private enjoyment or profit. ASOR and its members work for the perpetual preservation and protection of the archaeological record, and actively promote public understanding and support for these goals.
II. Preservation of Sites
Archaeological sites are a nonrenewable resource, each containing unique information about the human past. The loss of sites presents part of the world’s cultural heritage that can never be recovered.
A. There is an urgent need worldwide to document the endangered archaeological record before it is lost forever. ASOR supports and encourages its members to undertake efforts to document the archaeological record through surveys, inventories, and other means.
B. Directors of excavations should plan for appropriate post-excavation site protection in their initial research designs. Such plans must take into account the natural conditions affecting the site and the demands of multiple uses.
C. Unplanned development poses a threat to archaeological sites worldwide. ASOR encourages a partnership among governments, archaeologists and developers to make and execute proper plans to preserve the archaeological record. ASOR urges the United States government, UNESCO, and the United Nations to play a leadership role in efforts to protect the world’s cultural heritage from unnecessary destruction through development.

Fig. 4 – Late Bronze Age Temple (Rhonda Root)

Thus, ASOR’s fundamental principles affirm broadly based obligations toward antiquities and archaeological sites. These represent a global sense (“all people”) of moral responsibility to care for and protect in the face of whatever threats arise.
In Jordan, “Law No. 21 for the Year 1988 – The Law of Antiquities” lays out the basic principles regarding who owns antiquities sites and remains, categorized as moveable antiquities, immoveable antiquities, antique sites, and antique protectorates. Relevant sections include the following (cited from official sources, with one inserted, bracketed comment, and with emphasis indicated by bold italics type):
Law No. 21 for the Year 1988 – The Law of Antiquities
Definitions and General Provisions
Article 3
a. The Department will carry out the following:
2. The appraisal of the archaeology of objects and antique sites and evaluation of the importance of every piece of antiquity.
3. The administration of antiquities, antique sites and antique protectorates in the Kingdom, their protection, maintenance, repair and preservation, beatification of their surroundings and display of their features.
4. The spread of archaeological culture and the establishment of archaeological and heritage institutes and museums.
Article 5
a. Ownership of immovable antiquities shall be exclusively vested in the state. No other party may own these antiquities in any way or challenge that states right to such ownership by delay or any other means.
d. The ownership of the Land will not entitle the Landlord to won [own?] the antiquities present on its surface or in its subsurface or dispose thereof nor shall it entitle him to prospect for antiquities therein.
e. It is permissible to appropriate or purchase any real estate or antiquities which the Department interest requires the appropriation or purchase thereof.
f. All antique sites shall be registered in the name of the Treasury/ Antiquities in addition it all the antique sites which are not registered with the Department, which are discovered in the Treasury land or which are appropriated or purchased.

Fig. 5 – Early Iron Age House (Rhonda Root)

Article 16
a. The Department alone will have the right to carry out the work of surveying or excavating antiquities in the Kingdom. Further it may, with the approval of the Minister, allow scientific institutions, commissions societies as well as archeological expeditions to survey for or excavate such antiquities by a special license pursuant to his Law after ascertaining their ability and efficiency, provided that work will proceed ability and efficiency, provided that the work will proceed pursuant to the conditions specified by Director.
b. Subject to the provision of Paragraph “a” of this Article, no person or entity shall be permitted to search for antiquities in any place in the Kingdom, even if such place is owned by him.
Official Jordanian antiquities legal documents thus make it clear that it is the government of the country that oversees everything to do with antiquities, even in the case of private land ownership. All decisions about archaeological remains, moveable and immovable, rest in the hands of the Department of Antiquities. So, at least in part, do decisions regarding antique sites, although private ownership of these sites is also governed by regulations quite outside the realm of antiquities laws. Thus the dilemma: Who really owns this part of the past in Jordan?
Antiquities laws in the United States are marginally helpful in this connection. According to Hutt, et al. (Sherry Hutt, Caroline M. Blanco, Walter E. Stern, Stan N. Harris, Cultural Property Law [2004]), “The Historic Sites Act of 1935 (I) declared a ‘national policy to preserve for public use historic sites … of national significance for the inspiration and benefit of the people’ (16 U.S.C. § 461).” “The Historic Sites Act delegates to the Secretary of the Interior the authority to survey historic and archaeological sites, buildings, and objects to determine which may possess “exceptional value as commemorating or illustrating the history of the United States” (16 U.S.C. § 462 [b]).” “The Secretary is also authorized to acquire, “by gift, purchase, or otherwise,” nationally significant properties (16 U.S.C. § 462[d])” (p 23). Thus, the sense of national ownership based on the motivation of promoting “inspiration and benefit of the people” undergirds U.S. law.

Fig. 6 – Hellenistic Farmstead Vessels

This more deeply and broadly based ethic of ownership of cultural heritage derives from a sophisticated sense of “cultural environment,” tangible and intangible, as illustrated in the chart provided by King (p 4)(fig. 7). Here the various arenas of cultural expression, from the conceptual to concrete artifacts and sites, find their place in the wider intellectual framework of culture and in the context of the U.S. laws which protect them.
However, while this perspective might help to undergird and expand the foundational principles of Jordanian antiquities laws in an instructive fashion, U.S. legal positions are muted somewhat when it comes to private property. Again according to Hutt, et al., “With the exception of human burials and skeletal remains (see Section 2.1.2), regulation of cultural resources on private lands presents a greater challenge than such regulation on state lands, primarily because of the friction between those who advocate broad application of private property rights and those who hold to the idea that cultural items found on the land are part of a national patrimony …. the Act does not require that a landowner ‘obtain a permit for personal excavation on his own land, provided that no transfer of ownership is made with the intent of excavating archaeological sites as prohibited in this section, and provided further that this exemption does not apply to marked or unmarked burial grounds’ [§ 18-6-11(E)]. This section has been interpreted to mean that no permit is required if the owner of private property is conducting the excavation, or if persons ‘operating solely in the capacity of the agent of the landowner’ are conducting the excavation” (p 78).
A similar sentiment is expressed by King (Thomas F. King, Cultural Resource Laws & Practice [2d ed. 2004]) on p 210: “To a considerable extent, the United States has adhered to these principles, with one major caveat. Considering the sanctity of private property rights in this country, it is not surprising that UNESCO’s recommendations about requiring people to report finds and confiscating stuff not declared have fallen on deaf ears. For the most part, U.S. archeological laws and regulations apply only on federal and federally administered tribal trust lands and to situations in which the U.S. government provides nonfederal parties with some kind of assistance or permits.”

Fig. 7 – Cultural Environment Chart

Thus, while U.S. law provides a more dynamic and more comprehensively structured framework for describing and discussing ownership of cultural heritage than Jordanian law, the U.S. could learn from Jordan’s strong emphasis on government responsibility for antiquities of any kind on any land in the country, private or public.
Coming to a resolution to the dilemma about who owns this part of the past, Tall al-`Umayri and its archaeological remains, will demand conversation among the stakeholders, whom I list as follows:
• The Royal Family – guardians of the cultural resources of the Kingdom, long-time personal interest in the MPP-`Umayri excavation results and plans for conservation and presentation of the site
• Parliament – responsibility for protecting and preserving Jordan’s considerable cultural heritage
• Ministry of Tourism and Antiquities – responsibility, for moral and economic reasons, for protecting and presenting Jordan’s cultural heritage
• Department of Antiquities (DoA) – primary responsibility for ensuring best practices in the recovery of Jordan’s cultural heritage
• Amman Region of DoA – specific responsibility for DoA’s interests in the region of Amman
• Greater Amman Municipality (GAM) – interested in the southerly expansion of Amman around `Umayri and the value of antiquities sites to the city
• Land owners – major financial investments into the land for family and personal economic reasons
• Bunayat families – laborers’ income for the men of this village of between $5,000 and $10,000 per season (ca. $100,000-$125,000 since 1984), and generational personal and family investment in the project
• Jordanians – support of economy, moral responsibility for the country’s cultural heritage
• Archaeologists working at `Umayri – scholarly/moral responsibility to recover, analyze, interpret, and preserve according to best practices
• Archaeologists working in Jordan – mutual support of all archaeological missions in Jordan
• The world – beneficiary of our contributions to the growth of knowledge and the responsible use of Jordan’s cultural heritage

Douglas Clark, Director and Author
Center for Near Eastern Archaeology, La Sierra University

While it is not practical to survey all these stakeholders, it will take a review of principles established internationally over the past several decades for this kind of issue, and the collective wisdom of the major players to bring resolution to this dilemma. Given the high and rising property values of the site, given the legal and moral obligations everyone faces, given the exceptional educational value of `Umayri to Jordanians and visitors regarding the Bronze and Iron Ages, given the touristic potential of a protected, comprehensive, interactive archaeological park, given all the potential of `Umayri, the time to act is soon.
At present, the options are limited, and seem to include the following:
• Government purchase of the site (as a whole [10 hectares] or the acropolis [1.5 hectares] or a combination of acropolis and part of the surrounding slopes)
• Government land swap for the private property
• Land-owner donations
• Combination of these into partial donation, partial purchase, partial land swap
• Government expropriation of land (limit of seven years)
So, who owns this part of the past, this site and its treasures? While we may never be able to answer this question definitively, the response for the present situation should include both land-owners and the larger entities of country and world. Cultural heritage is human heritage, after all. In the case of Tall al-`Umayri, the best apparent solution under current laws would be to find a way for the land-owners to be compensated for their investments and for this signature archaeological site to come under the control of the Department of Antiquities. Then its cultural heritage can be protected, presented, promoted.