GEOL 104 Dinosaurs: A Natural History

Fall Semester 2021
Paleo-Ethics: Who Owns the Fossil Record?

The juvenile Tyrannosaurus rex specimen in the so-called "Dueling Dinosaurs" pair, discovered and excavated by commercial collectors and eventually acquired by the North Carolina Museum of Natural Sciences

Key Points:
•Many different people dig for fossils, not just professional research paleontologists. Additional communities include avocational collectors and commercial collectors.
•Although they have sometimes collaborated, professional paleontologists and commercial collectors sometimes find themselves at odds.
•Historically the commoditization of fossils has been found to remove important fossils from the public trust, has resulted in researchers being excluded from private lands, and incentivizes hoaxes.
•An additional constituency involved in fossils are the landowners. In some cases (in particular for indigenous populations), these people have historically had little say in the disposition of fossils found on their land.
•Awareness of all these issues has (thankfully) led towards a more concerted effort towards ethical approaches to fieldwork, including the repatriation of specimens to their homelands.

Who Collects Fossils? Issues Around the Commercial Trade in Fossils

Some fossils obviously ARE commodities: coal, petroleum, chalk, diatomite, etc. And as such they are commercially bought and sold.

But what about the sort of fossils that this course focused on: the body and trace fossils of organisms as object?

In order to look into this, we need to consider the different types of people who search for fossils, and their motivations.

There are professional paleontologists: normally motivated by research, and normally employed by museums, universities, and other academic institutions. However, some might be employed by resource-management organizations (such as the US or state geological surveys; National Parks or Monuments; state parks; etc.): some of these may do research as well, but often they have the additional job of overseeing the protection of fossil sites and so forth. (And these jobs aren't mutually exclusive: the recently-retired State Paleontologist of Montana was also a Professor at Montana State University AND a curator of the Museum of the Rockies!) Professional paleontologists are the only group likely to develop major expeditions, and are the only group likely to prospect in formations that aren't yet known to produce lots of fossils: after all, discovery is our job! Given professionals tend to specialize on particular taxa (and thus might not be limited to working in just one region), but some work mostly on particular faunas or formations.

Another group is avocational collectors: hobbyists, enthusiasts, "amateurs" (in both the sense that the don't get paid to find fossils, and that they do it because they love it.) Avocational collectors are BY FAR the largest community. The tend to generate interest in fossils, and in Nature and Science, among the general public. Many important finds have been made by avocational collectors (which they often donate to museum collections). In general they tend mostly to prospect sites known to produce large quantities of common fossils (after all, they are more likely to do this for a day on the weekend, not a six-week expedition.)

The smallest group are commercial collectors. They tend to specialize in a particular geographic region and a particular set of formations known to produce good fossils: after all, they are doing this for a livelihood, so they need to have some likely return on their investment. In some cases, they are the best outfits able to field crews and run preparation labs in the regions they operate, although some teams might be ill-equipped or relatively unskilled (but the same can be said about some avocational and professionals...) In some cases, the commercial collectors cooperate with researchers to bring the fossils into the public trust; however, in some cases (as discussed below), there are conflicts between the goals of professionals and commercials.

Some historical commercial collectors were major contributors in the history of paleontology, such as Mary Anning (1799-1847) of England and the Sternberg Family of the western U.S. (The latter are an extension of the practice of hired crews used by the professional paleontologists: a very common practice in the 19th Century in the American West.)

Proponents of commercial collecting and sales of fossils put forth some important arguments:

(Here is a commentary taking the pro-commercial collector position).

However, others point out that there are many problems with the commercial collection of fossils:

(Here is a commentary taking the anti-commercial collection position.)

The most famous story of a conflict between commercial collectors and professional paleontologists, as well as issues of land management, Native American rights, and much more, is the case of "Sue" the Tyrannosaurus rex. In 1990 the Black Hills Institute (BHI, a commercial collecting firm operating out of Hill City, South Dakota) was exploring for fossils in the Hell Creek Formation (the latest Cretaceous of western North America) on the Cheyenne River Indian Reservation. Team member Sue Hendrickson went off on her own and discovered what turned out to be the largest (at the time of discovery) and most complete (even to this day) T. rex skeleton ever found. The BHI dug up the specimen and brought it back to Hill City. However, a dispute arose: the land owner (Maurice Williams) claimed that the $5000 they had paid him was NOT for the specimen, but simply the right to prospect his land; Williams argued that the specimen belonged to him, not BHI. Because Williams is a member of the Sioux nation, this dispute became an issue of federal law. In 1992 the FBI and National Guard came to BHI and took control of the fossil. A legal decision in 1995 determined that "Sue" was indeed Williams property. The specimen went to the auction block at Sotheby's, where for $8,362,500 the Field Museum in Chicago acquired the specimen (backed by Disney and McDonalds).

(The story of "Sue" has been the focus of two different documentary: a markedly pro-Larson one from 2014, and a more balanced one by the TV series NOVA from 1997.

The legacy of the "Sue" incident was to drive a rift between many commercial collectors and professional paleontologists; to increase the sales of dramatic fossil specimens in stores and at auction; an increase of the perception of privately-owned fossils as a prestige item of the rich to display; and to increase the market for faked fossils to fill the market place.

Dinosaurs (more than all other fossil organisms) make up the high ticket, high esteem items in the commercial fossil trade. As the world recovered from the 2008 Great Recession, the 2010s and 2020s have seen an explosion in the sale of expensive dinosaur fossils, normally at the great auction houses of the world. These can run in the hundreds-of-thousands-to-millions-of--US-dollars range, and culminated in the October 6, 2020 sale of "Stan" the Tyrannosaurus rex (also a Black Hills Institute specimen!) for an astonishing $31.9 million dollars! (As of this time, the buyer remains anonymous and their plans for this specimen remains unknown.)

Not only has there been an increase in fossil sales; there has also been an increase in the creation of fake fossils to sell on the markets. The most famous post-"Sue" hoaxed fossil is the "Archaeoraptor liaoningensis". A 1999 issue of National Geographic Magazine featuring the newly-discovered Yixian and Jiufotang feathered dinosaur fossils announced a fossil of an as-yet unnamed species. Its front end was very derived, but its hips and tail were fairly primitive. Paleontologists (including this one!) were very curious about this specimen, as it had not been described in the technical literature. And there was a good reason for that: it was a hoax, and every attempt to publish it in a scientific journal failed peer-review as the reviewers noted the falsehood of the specimen. In February 2000, National Geographic announced that it was indeed a fake, combining the front end of a bird (Yanornis) and the rear end of a dromeosaurid (Microraptor). A study in 2001 eventually showed the steps needed to construct the hoax. The hoax had been done in China, where a market had already been developed in the sale of fossils (despite the fact this is illegal in the People's Republic!): the more complete the fossil, the better! The concern wasn't the information from the fossil, but rather how much money they could make from it.

Who Owns the Fossil Record? Laws and Stakeholders

We have dealt primarily with who discovers fossils, and the sale of fossils, but that actually skipped over a step: who actually owns them? Is it the collector? Or someone else? Are they objects to be possessed, or part of the global heritage of all, or something in-between? And who are the stakeholders involved?

As with many aspects of laws and regulations, the legal answer (if not the ethical ones) depends on where you are. And this isn't just different from country to country; it can also vary from place to place within a country. For instance, in the United States fossils are generally regarded as mineral rights rather than antiquities (such as artifacts and human remains). The laws that govern them depends on the type of land concerned:

These protections don't always work, though: they have to actually be enforced. Mismanagement of Fossil Cycad National Monument in the 1920-1950s was such that people would just take away fossils from the Monument! With no more fossils to display or protect, the National Monument was decommissioned in 1957.

Other nations have different laws. In some fossils are regarded as protected antiquities or as part of the natural heritage, and are the property of the State (or the Crown), regardless of the private vs. public nature of the land they are found on (both the Republic of Mongolia and the People's Republic of China, from which many dinosaur fossils have come, regard all fossils as property of the State). In others there are no protections anywhere except their national parks. And many nations have protections that effectively exist only on paper: big "grey" markets (really black markets, but with protection of government officials having been paid off.)

Of recent concern are the rights of indigenous populations with regards to fossils found on their lands. For instance, many fossils discovered and collected in the American West since the 1800s were found on reservations or other Native lands, and yet the local governing bodies were not consulted with regards to their collection. Similar situations exist in other parts of the world with their own indigenous peoples. For instance, are the fossils found in Tendaguru Hill in Tanzania the property of the national Tanzanian government or the Wamwera people of that particular region? Answers to this have bearing on the question of potential future repatriation of these materials.

Issues in "Paleontoethics"

The questions raised above are part of the newly-coined field of "paleontoethics". (This has been called "paleoethics" for many years, but a 2021 paper on the topic suggested this slightly longer name. The authors of this paper point out several important issues. For instance, the actual land from which the fossils are found can be disrupted or degraded from:

The authors call for sound management of fossil-producing localities based on scientific, socio-cultural (including incorporation of indigenous rights and practices), and socio-economic criteria.

One important issue in paleontoethics is the repatriation of specimens either illegally or unethically obtained. There have been several recent cases of illegally-acquired specimens being returned to their home countries. Some have involved the appropriate law-enforcement authorities seizing the illegal fossils (as in the case of some Mongolian dinosaurs confiscated by U.S. Customs officials and returned to Mongolia) or by the voluntary action of those who bought the illegal fossils working with the home nation. Examples of the latter case include the return of poached Deinocherius fossils by a fossil collector to Mongolia (where in some cases the opposite ends of the same bones of the same individual were held!) and the eggs and embryos of the giant oviraptorosaur Beibeilong returned to China by the U.S. museum which had obtained it.

An ongoing debate is the potential return of fossils collected by colonial powers in the 1800s and early 1900s to the original nation. For instance, the classic Late Jurassic fossils of Tendaguru Hill were taken back to Germany (and later, the UK) during these nation's imperial occupation of that nation. However, debate between the parties is ongoing, including such issues as the sufficiency of the museums in the home institutions to maintain and curate the fossils and whether the fossils belong to the national government or the indigenous people of the Tendaguru region.

On an even broader perspective, are any fossils really the property of individuals, institutions, peoples, or nations? Legally (and practically) there needs to be some principle of responsibility and authority so that the material is properly managed. But an alternative perspective is that fossils are part of the collective heritage of all humanity. They represent the world before any modern populations, institutions, or societies (and for all but the youngest fossils, before our species itself). While we would clearly need some proper management authority for the care and maintenance of this fossil heritage, this more global perspective regards fossils as property of us all collectively, held in trust by the (geologically temporary) human institutions for the sake of us now and for posterity.

Looking to the future, it is clear that commercial fossil collection is unlikely to disappear anytime soon (particularly in the U.S.), and there are historic inequities to address. Some points of paleontoethics and related issues to address:

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Last modified: 27 July 2021

Photograph of local Wamwera field workers collecting dinosaur fossils for the 1907-1913 expedition of the Museum füaut;r Naturkunde, Berlin to Tendaguru Hill in present-day Tanzania. The possible restitution of these fossils to Tanzania is a matter of ongoing debate.