"Over a three-year period, the whole thing cost me $73,000 to fight," Hester says, "and a lot of lost business, time and opportunities. People in my business are a very private people, we don't like interference. This was my first real signal that the government was getting out of control. So, for me, what I'm doing now is social retribution, or revenge, for what government interference has done to me."
At first, revenge meant waging an organized campaign against Senate Bill 1412, titled the Indian Burial Protection Act. Passed in July, the new law sets up a system of procedures for dealing with remains and funerary objects found on private property. Under the law, if a landowner discovers a burial site, he is required to notify the state museum director. The state then has ten days to inspect the site and excavate it, in conjunction with the tribe that has a cultural affiliation with the Indians who inhabited the area. The remains and objects, many of them worth hundreds or thousands of dollars, will be confiscated and repatriated to the tribes, presumably for reburial. In particular, this provision has drawn howls of protest from collectors, dealers and private-property advocates.
If a landowner intentionally disturbs the burials and keeps or sells the pots and other artifacts he finds, he can be charged with a Class 5 felony--and could face up to two years in prison.
Hester led a small group of pot hunters and rural Arizonans concerned about private-property rights in writing letters and lobbying through legislative channels last summer to try to block passage of the bill. Although they failed, the war of words goes on.
"I've been doing this for twenty years, and I need to fight for our rights," he says. "Public opinion will be on our side once The issue isn't the bones anyway, he says. It is the fate of valuable artifacts that happen to accompany the human remains. For Hester, it is a simple question of capitalism.
"Why are they going to take those items with great scientific and monetary value and bury them back in the ground?" Hester asks. "Either they will stay there, and that would be a great waste, a great loss for the scientific and artistic community, or they'll just be dug up again by a tribal member or somebody else who will sell them. They'll be back on the market in weeks. So why not just leave them with their rightful owner?
"It's what I told senators and representatives, the press, everybody. If I find stuff on my property," he says, "then it's mine because I bought it. It's on my land. Enough said."
In addition to violating property rights of collectors, Hester says, the taxpayers will be forced to pay for the costly excavations made by the state on private lands; excavations that could run into thousands of dollars.
Raymond Thompson, the director of the Arizona State Museum, to whom diggers must report burial discoveries, admits that if the state had to deal with "three or four discoveries a month, it could bankrupt the museum."
"Unfortunately," Thompson says, "the legislature passed this bill without appropriating any funds for it. We will do the best we can, but we are not looking at a friendly situation as far as making this thing work."
The museum has processed only one site since the law passed in July, and in that case (where a Prescott developer struck burialground while installing a water line), the developer agreed to foot the bill for the excavation. The remains uncovered will be returned to the Yavapai Indians for reburial.
Instead of turning the items over to the state or tribes, Hester suggests a compromise--a law stating that the government will impose a small tax on the excavated items, and that private- property owners be required to notify the state and register artifacts so that they can be studied if they are scientifically significant. "That way," he says, "we maintain ownership over what is rightfully ours and yet the items aren't kept secret out of fear they will be taken away."
But the trend, on both the state and national levels, is not aimed toward compromise. The federal government turned up the heat on pot-hunting investigations in 1979, after the passage of the Archaeological Protection Act, which toughened prohibitions against excavating on government land. The forest service, DPS and the state Attorney General's Office coordinated a year-long "sting" operation in 1987 aimed at eliminating more than a dozen artifact dealers, by having undercover agents offer objects borrowed from state museums for sale--valuable artifacts the dealers would recognize immediately as stolen. Also part of the escalation, Hester charges, officers monitored his mail and tapped his phone. Paranoia? Maybe. But officials admit privately that they compiled a file on Hester "the size of several New York phone books," with an eye toward convicting him of grave-desecration. The campaign against him, Hester alleges, also included direct threats from his nemesis Allaire.