The Inside Man

The country’s public lands are underprotected, underfunded, and increasingly vulnerable. This special agent works to protect them.

The
“Thomas Hoyt,” alias for Todd Swain, a special agent with the National Park Service who conducts undercover investigations into cultural resource crimes on public lands

Credit: Todd Bigelow

Kenneth Milette spent a half-century, practically his entire life, amassing what he said was the largest private collection of Native American artifacts in the world. If you were a fellow collector, and if Milette knew you well, he might have invited you to his home in Newport, Wash., and told you some of the stories behind this particular arrowhead or that spear point. He might have even hinted that some artifacts had been obtained illegally from public lands. You had to tread carefully, but if you gained Milette's trust, you could have heard some riveting stories. And you could have gazed upon riches.

Seven years ago, at the age of 62, Milette decided to sell. He had a potential buyer in mind, a man named Thomas Hoyt, who had responded to a classified ad Milette placed in a Spokane newspaper. Hoyt said he was an avid collector, interested in both buying and selling. The two men chatted and later kept in touch, building a relationship that resulted in an invitation for Hoyt to fly to Washington and see Milette's collection.

On Sept. 19, 2003, a cool and overcast morning, Hoyt pulled into Milette's driveway. He took note of the gray ranch-style house, the pearl-colored Cadillac, the free-standing garage and barn, the sprawling property with a pond out back. "I love hunting arrowheads" even more than women or drinking, Milette said after an initial greeting, a cigarette dangling from the corner of his mouth.

Prehistoric stone tools, fossilized buffalo teeth, projectile points, beadwork, scrapers, arrow shafts with metal trade points, spear points—Hoyt marveled at the sheer number of artifacts inside the first room that Milette showed him. Sacred burial pipes rested on the kitchen table. And in a closet, where Milette showed him an eight-inch spear point, a Vietnam-era AR15/M16 assault rifle and rounds of ammunition were visible in the corner.

Milette then led Hoyt to the barn. Nearly every inch of that 600-square-foot space was filled with artifacts—thousands of them—including a mounted collection of projectile points arranged to spell "Ken Milette." Milette's obsession with artifacts ("You're the first person to touch these things in five, six thousand years," he said) was evident. But what really caught Hoyt's attention was a small piece of Styrofoam filled with ancient Native American teeth, which Milette said had come from the site of a buffalo jump. 

Back in the kitchen, Milette revealed his asking price for the entire collection: $1 million. Was Hoyt interested? Heck yes, Hoyt was interested, and he had the means, too, having just inherited a large portfolio of stocks. But he couldn't make a decision of such magnitude without bringing his wife to see the collection. Thinking he was on the verge of a massive payday, Milette 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 collector but a National Park Service special agent who investigates illegal archaeological looting on public lands. Thanks to a tip received at the U.S. attorney's office in Spokane, Swain, in partnership with the FBI, had already begun investigating Milette, recording many hours of conversations. That night, after leaving Milette's house, Swain and an FBI agent met with a federal prosecutor to plot their strategy. Even the slightest misstep, they knew, could bring the case against Milette tBy the numbers, looting in this country is an epidemic. According to the most recent Department of the Interior statistics, during the past decade there were on average 840 annual instances of looting on land owned by the National Park Service, Bureau of Land Management, Fish and Wildlife Service, and Forest Service—the four agencies that control nearly all the public lands in this country.

Consider these recent high-profile cases. Last June, authorities arrested a network of 23 alleged looters in southeastern Utah, charging them with robbing ancient Native American burial sites and selling burial masks, Anasazi pottery, a buffalo headdress, and scores of other artifacts. In 2006, Operation Bring'em Back, which resulted in the seizure of more than 100,000 artifacts—including the skulls of two Native American children—culminated with the prosecution of seven looters. That case helped expose the remarkable rise of "twiggers," so-called because they "tweak" (take methamphetamine) and then dig for artifacts, which they sell to support their habit.

Most looters are tried under the Archaeological Resources Protection Act (ARPA), enacted in 1979 as a stronger alternative to the 1906 Antiquities Act, which mandated a maximum penalty of $500 and six months' jail time. Despite ARPA's stricter penalties (maximum $20,000 fine and two years' imprisonment for a first offense) and despite slowly evolving attitudes about the importance of protecting America's cultural heritage, looting remains as insidious and widespread a problem as it was three decades ago, says Martin McAllister, director of Archaeological Resource Investigations, a consulting group based in Missoula, Mont.

As an archaeologist with the U.S. Forest Service in the 1970s and as a witness in countless ARPA cases, McAllister has seen entire chapters of American history vanish before they could be documented and analyzed. Looters tend to target Civil War battlefields and prehistoric sites with Native American burials, he says: "These sites are like a threatened or endangered species. They are going to go away. I don't think people realize the alarming rate at which we're losing them."

On average, the Bureau of Land Management (BLM) has one ranger on patrol for approximately every million acres—a staggering statistic that gives insight into how underfunding has left western lands vulnerable to a host of threats (see sidebar on page 23). The odds of catching someone in the act of looting rival those of winning the Powerball. Some authorities have tried using motion-activated cameras and other surveillance equipment at high-risk sites, but cameras malfunction or are stolen, and by most accounts their effectiveness has been limited. Stakeouts require extensive manpower and long hours and can become prohibitively expensive.  

Undercover investigations, meanwhile, have emerged as one of the most effective ways to catch and prosecute looters. Enter Todd Swain, who during his nearly two decades as a special agent has found himself in some rather disturbing predicaments, such as watching a looter dig up the remains of an 1,800-year-old Native American woman on the Channel Islands, off the California coast.

Swain worked a variety of cases after becoming a special agent—murder, rape, larceny. But his first looting case, in 1993, proved to be an awakening (and not just because of the awkward scene that ensued when he went to a judge to get signed search warrants, only to discover that he had unwittingly targeted the judge's son-in-law). Our archaeological record, Swain realized, is a nonrenewable resource being continually plundered, but catching the perpetrators entails solving a complicated and nuanced puzzle. For starters, prosecuting someone for an ARPA violation often requires proof that artifacts came from public and not private land (where it's legal, in most states, to dig with an owner's permission). Even in our age of forensic science, that's no easy task, especially after suspects have disposed of incriminating evidence. 

Perhaps it was the daunting nature of the challenge that he found so alluring, but Swain had discovered his niche. Today he's one of only a few special agents from land management agencies who focus exclusively on cultural resource crime. He has spent years developing his specialized skill set, largely through trial and error. "There are zillions of things to learn about undercover work, zillions of things to learn about archaeology, what facts you need to have to actually convict someone," he says. "It's very complicated when you're not presented with a case on a silver platter."

In a recent paper in the Yearbook of Cultural Property Law, Swain reported that approximately 15 percent of looting cases get solved. Moreover, based on data from three national parks, and other sites, he demonstrated that looting incidents often go unreported, either because rangers don't file papers or because they log cases under different codes. "Should the federal government actually look," he wrote, "they will find that the true scope of the looting problem is staggering, that our shared cultural heritage is disappearing before our eyes."

By the time Swain returned to Milette's house with his "wife," whose true identity he doesn't divulge, he had already begun to gather more evidence. Milette renewed his sales pitch for the presumed Mrs. Hoyt, showing off projectile points made by the Folsom people (Paleo-Indian hunter-gatherers who 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 entrapment. He had heard his share of worrying stories.

Swain's heartbeat quickened ever so slightly. But the moment passed. And slowly Milette began to reveal where he had acquired his artifacts—for instance, the Lindenmeier site in Colorado, a National Historic Landmark where evidence of the Folsom people was first discovered. There also were pieces from the Nez Perce and Coeur d'Alene reservations in Idaho; the Spokane reservation and Lake Roosevelt National Recreation area in Washington; and Glacier National Park and Little Bighorn Battlefield National Monument in Montana.

Negotiations began in earnest. Milette agreed to sell his collection for $750,000 if an under-the-table transaction could be arranged. Swain agreed, with one condition: that Milette reveal the provenance of every artifact, ostensibly so that Swain could record Milette's amazing stories gathered over a lifetime of collecting. In reality, Swain had struck upon an ingenious way to 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 bubble wrap on hand, the packing commenced, Milette sharing the stories behind the artifacts as the "wives" helped wrap them. It was the first time Swain had met Milette's wife, and her presence added further complication; if she sensed anything amiss, the entire operation would be jeopardized. But the wives became fast friends, watching videos of Mrs. Milette singing with the Sweet Adelines, a barbershop ensemble.

By Monday, with the packing almost complete, the Milettes met Swain at a bank in Deer Park, Wash., expecting to process a wire transfer for $750,000. Instead, federal agents arrested Kenneth Milette. The authorities, search warrants in hand, then descended on his house. "It's the only search warrant I've ever served where the majority of items were prepackaged," Swain says.

Temperatures were frigid as officials transported the seized artifacts to a border-patrol warehouse in northern Washington about 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 Indian Affairs archaeologist called in to assess the collection—no easy task given that the artifacts came from so many different sites and were thrown randomly together. "It was like walking into a library with all the covers and title pages of the books removed," he says.

James spent nearly 250 hours analyzing 1,487 artifacts. Though representing only a small percentage of Milette's collection, these objects could definitively be traced to public lands. James assessed the artifacts' commercial value and restoration and repair costs at $58,510.30. But that number fails to reflect their true worth. Dozens of artifacts—projectile points, arrowheads, an unfired bullet, a knife—came from the site of Custer's last stand at Little Bighorn Battlefield, for example. As James notes, studies have used archaeological evidence from the site to understand the ebb and flow of the battle, the movements of the Seventh Cavalry and the Sioux, Cheyenne, and Arapaho. "The potential to contribute to that kind of knowledge was totally lost," he says, because the artifacts had been removed from their context. As any archaeologist will tell you, there is no way to assess the value of such lost knowledge and no amount of money that can offset the damage. Once a site has been compromised, there's no going back.

"To the tribes, these places are sacred. This is the Native American people's heritage, and it's being raped," says Jim Shearer, the lone archaeologist in BLM's Barstow, Calif., field office. One autumn morning, Shearer takes me to a Native American habitation site affected by looting, a short drive north of Joshua Tree, Calif. A burly man with a mustache and a diamond earring, Shearer oversees 3.2 million acres—not an insignificant chunk of southern California landscape.

Amid the boulders and stone outcroppings that punctuate the otherwise flat desert landscape, a scene framed by distant mountains, a series of massive holes disrupts the stark beauty. Looters first descended on the site in the 1970s and may have used heavy equipment to dig, given the size of the holes. It took two decades for authorities to discover the crime—another indication that the scope of the looting epidemic has been vastly underestimated.

It's Shearer's first trip here after four years on the job (he only recently heard about the looting), and he says that not much is known about the site. The Mojave, Serrano, and Chemehuevi all populated the region. They probably lived here seasonally, ascending into the mountains at other times to hunt mountain sheep and jackrabbits. As we walk around, Shearer discovers a sherd of Mojave buffware, a common type of pottery, and a metate, a stone used to grind seeds and other food. These pieces of archaeological evidence have been overlooked by looters; what's conspicuous, though, is how the site has been damaged. "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 to another site, navigating a winding dirt road into remote country around the Ord and Rodman mountains, near Barstow—land that's also administered by BLM. A sign marking the entrance to the site describes the history here, but it's illegible, riddled with bullet holes—an emblem, Shearer says, of how some people feel about the government's presence on western lands.

Ahead, we enter a small canyon, carved out of an old lava flow by a river, now dry. Hundreds of petroglyphs, some possibly drawn by Native Americans more than 10,000 years ago, cover the basalt walls: 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, and these delicate and beguiling symbols on the walls of rock are remnants of a history that began long before Columbus set sail from Spain. Standing in the canyon, shielded from the wind, one senses not only a deep connection to the past but also a profound feeling of calm.

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

He points out sections where looters have actually stolen petroglyphs, chiseling out slabs of rock. Any magic conjured up by contemplating these works of art dissipates the moment you notice such violations.

How to stem the tide of looting? Shearer notes that the California Archaeological Site Stewardship Program, which assigns volunteers to sites and trains them to watch for illicit activity, has seen success. And amateur enthusiasts eager to get their hands dirty can participate in archaeology programs sponsored by the park service and other agencies as part of a broader effort to educate the public about the importance of protecting public lands and preserving ancient resources.

Changing deep-set attitudes, however, may prove difficult. Even though the Antiquities Act was enacted more than a century ago, looting cases have only started to be brought with any regularity in the last three decades. And that's sparked outrage among 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/plains office, is how to convince people that digging on a Native American burial site is no different from disturbing colonial graves in Jamestown. And that digging up artifacts and removing them from their original context is tantamount "to removing a one-of-a-kind book from a library. The book's gone, and you'll never know the lessons it contained."

Martin McAllister, whose consulting firm offers ARPA classes to educate prosecutors, law enforcement officers, and archaeologists on the nuances of the law, says market forces remain a significant part of the problem. So long as the demand for artifacts remains strong (German collectors, for example, have a penchant for Native American objects), and so long as the odds 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 brought downtown Spokane to a standstill, Kenneth Milette sat in a wood-paneled federal courtroom for his sentencing hearing. Charged with seven counts, including trafficking in archaeological resources and Native American human remains, he had pleaded guilty to four as part of a plea agreement. Wearing a dark suit and cowboy boots, his silver belt buckle prominent, Milette appeared subdued, his head bowed. His wife looked on, her expression muted. "I just want to say how sorry I am," Milette said to the judge. "I didn't want this to happen. I'm sorry if I caused any harm to anyone." His sentence: $10,000 in restitution to be paid to the National Park Foundation, six months' house arrest, and three years' probation, the judge showing leniency because of Milette's age and remorse. (Milette did not respond to an interview request. The reporting for this story relied on documents related to the case, including the undercover tapes and the search warrant.)

Downstairs, in the federal prosecutor's office, Tom Hopkins, then a U.S. district attorney, said the case would serve as a deterrent: "I think it was a fair and just result. When we do make a case—and they are hard to make—it's important to follow through and push it to a conviction, to send a message that this is important for the American people to protect these resources."

Nearly a year later in that same courthouse, authorities complied with the federal Native American Graves Protection and Repatriation Act and returned artifacts to the Native American tribes affected by the looting, including the Spokane tribe and the Nez Perce. Some of the items, including an eight-foot-long bead necklace that was likely part of a burial, would be ceremonially reinterred. Larry Greene Jr., a tribal executive of the Nez Perce, expressed gratitude for the return of the artifacts and forgiveness for Milette's actions, though he couldn't help thinking that the sentence amounted to a mere slap on the wrist. "It's left a sour taste, not only for myself but for the tribal membership," he said of the looting. "I don't think anyone would want their 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 the seizure of more than 11,000 artifacts and the prosecution of a ring of five looters, has given him a host of new targets to pursue. For the past four years, he has worked his way from the looters into the wider network of artifact trafficking, the way investigators in a drug case may start with a low-level dealer and work their way up the chain, in the hopes of identifying a major supplier.

Todd Swain is a lot of things—brave, diligent, resilient in the face of long odds. But perhaps most of all, he's patient. These cases take time, he says, just as it will take time for attitudes about our cultural resources to evolve. In the meantime, he's got work to do.

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