Legal Briefs: Revived STOP Act in Congress for Third Go-Around, Updated NAGPRA Notices of Intent to Repatriate

by Ron McCoy

Palahiko Mana, Water Drinking Maiden
c. 1899, Unknown Hopi Artist
via Wikimedia Commons

On July 18, U.S. Senators Martin Heinrich (D-NM) and Lisa Murkowski (R-AK) introduced Capitol Hill to the latest (third) version of the thus-far-unsuccessful Safeguard Tribal Objects of Patrimony (STOP) Act.[1] 

STOP is intended to “prohibit the exporting of sacred Native American items and increase penalties for stealing and illegally trafficking tribal cultural patrimony.”[2]   The bill represents a response to some Parisian auction houses’ widely publicized sales of items over the vehement objections of representatives from tribes which hold those objects sacred.[3] If passed, STOP would, according to a wire service account,

ban collectors and vendors from exporting Native American ceremonial items to foreign markets….increase penalties within the United States for trafficking objects that tribes hold sacred by increasing prison time from five years to 10 years for violating the law more than once….At the same time, the bill would establish a framework for collectors to return protected items to tribes and avoid facing penalties.[4]

This legislative initiative’s cosponsors in the U.S. Senate include Tammy Baldwin (D-WI), Steve Daines (R-MT), Brian Schatz (D-HI), Martha McSally (R-AZ), Tom Udall (D-NM), and James Lankford (R-OK).  A House version is on offer under the auspices of Representatives Tom Cole (R-OK), Ben Ray Luján (D-NM), Deb Haaland (D-NM), and Don Young (R-AK), with cosponsors including Betty McCollum (D-MN), Tom O-Halleran (D-AZ), Amata Coleman Radewagen (R-American Samoa), and Xochitl Torres Small (D-NM). 

Institutional endorsers include Santa Clara Pueblo, Tesuque Pueblo, Zuni Pueblo, Nambé Pueblo, Wyandotte Nation, Native Village of Barrow, Mt. Sanford Tribal Consortium, Duckwater Shoshone Tribe, Susanville Indian Rancheria, Miami Tribe of Oklahoma, Mille Lacs Band of Ojibwe, Cherokee Nation, United South and Eastern Tribes, Eastern Band of Cherokee Indians, Hopi Tribe, Midwest Alliance of Sovereign Tribes, Sealaska Heritage, the National Association of Tribal Historic Preservation Officers, Tanana Chiefs Conference, and the National Indian Head Start Directors.[5]

This latest version of STOP is a significant development for just about anyone involved in the American Indian art world – especially when you consider that even after the legislative tinkering required following two previous attempts to put this legislation into the law books failed, STOP remains problematic.   

Cultural Property News – a must-read for those participating in the world of indigenous art – performed a superb job in summarizing STOP, and I encourage you to give their analysis your attention.[6]  In its current form, STOP exhibits potentially serious flaws and the sort of unclarified ambiguity that may help move legislation along but only creates problems down the road.  ATADA’s president Kim Martindale is quoted in the article as noting of STOP:

It doesn’t just restrict export of sacred items.  It requires a permit for items as low as $1 in value and keeps secret what can and can’t be exported.  The way this bill is written, it can require every person carrying or shipping an Indian item out of the U.S., including small items purchased by tourists, to submit a photograph and a form through a federal system that will have to be created from scratch.  To get an export permit each item will be subject to tribal review covering the 568 federally registered tribes, plus Hawaiian organizations and Alaskan villages.  The review system will operate in secret, and without any time limit.

Again, I encourage you to read the Cultural Property News piece.  Other goings on may suck the air out of the news sphere, but for anyone reading this column the 2019 STOP legislation could represent one of the most important legal issues you’ll confront for quite some time.

Covering the US’s Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) – which I’ve done pretty much since it emerged from the swirl of confusion attending the Columbian quincentenary – sometimes seems a mixed blessing.  This is especially the case when one’s intended audience is composed largely of curators, collectors, and dealers populating the world of tribal art; people who want and need to know how to deal with the purposes, nuances, and complexities of what remains a controversial piece of legislation.

The “mixed” part of the blessing comes up while attempting to indicate the ways in which NAGPRA’s interpretation and enforcement changes over time.  I refer specifically to NAGPRA’s notices of intent to repatriate. 

As this column’s regulars know, NAGPRA calls for the repatriation from organizations it broadly identifies as “museums” of Native American and Native Hawaiian objects falling into its categories of repatriation-eligible material: associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony.[7]   Of these four categories, the latter two are typically of concern here.  (As noted below, this rule of thumb is flexible and there are exceptions.)

Notices of intent to repatriate objects covered by NAGPRA from institutions the law broadly identifies as “museums” appear irregularly in the Federal Register.[8]   Such a notice specifies the institution involved, the tribal entity or individual making the claim for return, the determination the institution and the claimant(s) reached about the object’s status under NAGPRA, and the identification of the party (or parties) to which the object will be repatriated (pending the filing of a competing claim or claims).

Unfortunately, some of those charged with carrying out the law’s provisions regarding repatriation of objects appear to be engaged – whether knowingly or otherwise, I cannot say – in issuing pronouncements which make the law considerably more opaque than transparent.  Too many NAGPRA announcements exhibit a lazy sloppiness bordering on arrogant contempt for readers.

Since the NAGPRA notices of intent to repatriate that are summarized here may be the only source of information about the status of objects of interest to curators, collectors, and dealers, it is vitally important that information about repatriations (and the objects affected) should be presented in as clear and thorough a manner as possible. 

When I go over a NAGPRA notice, I search for the main points so, even while that notice is distilled in this space, readers will be able to sense whether the outcome affects their bailiwick in the tribal art universe.  Hopefully, they will also sense whether – responding to the pull of enlightened self-interest or commendable curiosity – they ought to inspect that notice in greater detail for themselves in the Federal Register.

Attempting to digest these notices with the eyes of a tribal art world curator, collector or dealer, inevitably leads to questions.  Is the object identified in a way that affords a reasonably intelligent individual an opportunity for understanding exactly what it is?  Is it described with a degree of clarity that allows for little in the way of confusion?  Does the notice coherently set forth the object’s original purpose and role?  Does the notice lay out a credible case for repatriation under NAGPRA? 

Is a resounding “yes” on all counts too much to expect?

Perhaps it’s the old professor in me, but, increasingly, some of these notices read as if they were drafted with the goal of providing readers (and posterity) with as little information as possible.

Fortunately, the bulk of the notices summarized below – this current crop takes us up to June 3, 2019 – could serve as templates for NAGPRA’s notices of intent to repatriate.  One can read most of them and come away with a pretty clear idea of just what type of materials are getting swept up into NAGPRA’s net and why. 

As usual, the dates given here in connection the notices are those on which they appeared in the Federal Register.  All quotations come from those notices.

 

Tlingit Oyster Catcher Rattle, Shaman’s Staff,
Shaman’s Hat, Shaman’s Spirit Helper
Unassociated Funerary Objects

Eiteljorg Museum of American Indians and Western Art, Indianapolis, IN (June 3, 2019): This column no longer routinely reports on NAGPRA notices of intent to repatriate unassociated funerary objects.  They usually don’t attract obvious, compelling, and broad interest in the tribal art world.  Occasionally, however, one of these notices finds its way to this space because it is of historical or other interest, particularly insofar as shining light onto the ways NAGPRA regards certain kinds of objects.  This is one of those occasions, because it focuses on Northwest Coast material of precisely the sort that attracts broad interest in the tribal art community.

This notice’s drafter(s) made a concerted effort to take us beyond the we-have-this-and-they-said-that-so-now-it’s-gone type of presentations which show up too often in the Federal Register’s notices of intent to repatriate.

The collecting activities of Indianapolis businessman Harrison Eiteljorg (1903-1997) led to the creation of the eponymous museum associated with this notice.  Eiteljorg’s expansive interests included the Northwest pieces referenced here – Oyster Catcher Rattle (circa 1870), Shaman’s Staff (c. 1880), Shaman’s Hat (c. 1800), and Shaman’s Spirit Helper (c. 1850) – all acquired by him between 1979 and 1981.  Eiteljorg was a canny businessman and careful buyer, and it is not surprising that the pedigrees of these objects are linked to names which loomed large in the tribal art market of the late-1970s and 1980s.[9] 

This notice provides solid descriptions of the objects in question.  Picking out an object at random, we learn that the Oyster Catcher Rattle

is constructed from a single piece of wood, bears black, red, and light blue pigments.  It has been halved and likely hollowed out to hold what may be seeds used to create its rattling sound.  A leather cord is tied to one side of the rattle.  The top of the rattle represents a long-billed bird.  Near the handle is a wolf spirit with a protruding tongue.  The underside is carved to depict what may be a beak.

According to representatives of the Central Council of the Tlingit & Haida Tribes, these four pieces – all of them provided with informative descriptions – are “cultural items used only by a shaman.” 

Shaman’s implements would have been interred with a shaman.  As it is against Tlingit custom to grant permission to disturb or disinter a shaman’s grave the Central Council believes that these four cultural items could have only been collected with removing them from a grave, and therefore, they are unassociated funerary objects [under NAGPRA].  Historic and contemporary scholarly research reiterate that traditionally, Tlingit shamans were buried with their accoutrements such as rattles, staffs, hats, and spirit helpers. 

 And, to seal the deal: “As indicated through museum records and consultation with the Central Council, the cultural affiliation of the cultural items is Tlingit.  According to Tlingit oral tradition, the Tlingit people have owned and occupied southeastern Alaska since time immemorial.”  This is enough for NAGPRA’s purposes to assist in the claim.

It was agreed that these objects should be returned to the Central Council of the Tlingit & Haida Indian Tribes in Alaska.

 

Kumeyaay Stone Pendants, Pestle, Slab, Figures, and Pipe (or Sucking Tube), and Bone Whistle Fragments
Objects of Cultural Patrimony

University of San Diego, San Diego, CA (June 3, 2019): In 1994, the museum was given “one set of bone whistle fragments; two stone pendants; one miniature stone pestle; one stone slab with pictograph; two stone figures; five ceramic pipes; and one stone pipe or sucking tube.”  These came from unidentified sites in San Diego County and were obtained sometime during a forty-year-long period commencing in the 1950s.[10]

San Diego County “is recognized as the aboriginal area of the people of the Kumeyaay Nation and all 13 bands of the Kumeyaay Nation were invited to consult.”  From these consultations, specifically as a result of interaction with representatives of Jamul Indian Village of California (a Kumeyaay Nation component), “tribal members recognized these objects as having been important to their village members, and spoke of how they were used both in the past and present.  They related stories of learning about objects similar to these from tribal members.”  The final determination?  “These thirteen objects are likely culturally significant to all the bands of the Kumeyaay Nation.”  (Yes, “likely” does sort of jump out of that sentence, but sufficient for NAGPRA’s purposes.)

It was decided to repatriate the pieces to the Campo Band of Diegueno Mission Indians of the Campo Indian Reservation; Capitan Grande Band of Diegueno Mission Indians (Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation; Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas Reservation; Ewiiaapaayp Band of Kumeyaay Indians; Iipay Nation of Santa Ysabel (previously identified as the Santa Ysabel Band of Diegueno Mission Indians of the Santa Ysabel Reservation); Inaja Band of Diegueno Mission Indians of the Inaja and Cosmit Reservation; Jamul Indian Village; La Posta Band of Diegueno Mission Indians of the La Posta Indian Reservation; Manzanita Band of Diegueno Mission Indians of the Manzanita Reservation Mesa Grande Band of Diegueno Mission Indians of the Mesa Grande Reservation; San Pasqual Band of Diegueno Mission Indians; and the Sycuan Band of the Kumeyaay Nation, all of California.

 

Hopi Butterfly Dance Tablita
Sacred Object
 

Pueblo Grande Museum, Phoenix, AZ (M, 2019): In 1983 a patron gave the museum a Hopi Butterfly Dance tablita, a headdress made of painted wooden slat-like components.  (“Tablita” comes from the Spanish tabla, which in this instance may be taken as meaning a board, plank, or slab.)  Unfortunately, the notice provides no information about the appearance of the tablita, its painted design(s), or vintage.

Although tablita headdresses are worn by some of the tribe’s katsinim during appearances in public plaza dances, they are perhaps most commonly associated with the tribe’s Butterfly Dance.  The notice informs us that because “representatives of the Hopi Tribe of Arizona demonstrated the Tribe’s cultural affiliation with this object, and established that the object was needed for use by girls during a traditional Hopi ceremony,” the tablita qualified as a sacred object that should be transferred to the Hopi Tribe.

 

Thirty-Two Diverse Karuk Objects
Sacred Objects/Objects of Cultural Patrimony

Autry Museum of the American West, Los Angeles, CA (May 3, 2019): This sweeping notice, a model for such proclamations, embraces thirty-two objects formerly in the collections of the Southwest Museum of the American Indian.[11]  All of them are categorized under NAGPRA as both sacred objects and objects of cultural patrimony.  Here is an abbreviated listing of the material involved:

an otter fur dance belt and a woven horsehair dance belt….one pipe [with steatite bowl] and one leather pouch….one large [half-a-foot wide and nearly a yard-long] and 33 1/2 -inches obsidian blade….one wooden stool, one [yew] bow, and one bone whistle….one rattle wand, one deerskin, two netted hangers, one case for feathers, one grass apron, and one bow with six arrows….four jump dance baskets….one head right made of deerskin and woodpecker feathers, two eagle don head plumes…one headband made of porcupine quills, two headbands made from sea lion teeth, one dance apron made from a ring-tail pelts [sic], one quiver made from fisher pelt and eight arrows…one wolf hair blinder, two otter fur blinders…two hangers made from woven plant fibers with feathers….one deerskin dress….one dentalium [shell] necklace.

 

These objects came to the museum between 1918 and 1985 (most during the 1930s) through purchase, exchange, and donation.  All were identified as emanating from the Karuk people of northern California.

As noted earlier, this notice of intent to repatriate could serve as an exemplar for all such announcements.  This is because it tells us quite a bit about all of the pieces under review.   

That massive, six-inches-wide, almost yard-long obsidian blade, for example?  We learn it was collected in an area long associated with the Karuk and that “the size, material, and design of the blade is typical of Karuk ceremonial blades.”  Further, “Karuk representatives explained during consultation that this blade was used during the White Deerskin Dance, where large ceremonial obsidian blades are carried by the participants who lead the dance.”  This leads to support for the formulaic NAGPRA statement that “it is a specific ceremonial object and is required by the Karuk Tribe…to properly perform the traditional religious dances and prayers for the White Deerskin Dance,” which makes it a sacred object.  Finally, “Karuk representatives explained during consultation that medicine pieces, although cared for and used by individuals, were owned collectively and could not be sold or traded by individuals.”  This makes the blade an object of cultural patrimony. 

That quartet of jump dance baskets?  “Karuk representatives stated during consultation that due to the designs on the baskets, the characteristics of their construction, and evidence of wear from use, these jump dance baskets were use in the Jump Dance and were not made for sale.  Anthropological and historical information also demonstrate that these objects are Karuk objects used in the Jump Dance.”

The entire collection was slated for repatriation to the Karuk Tribe in northern California.

 

 

 Please note: This column does not offer legal or financial advice.  Anyone requiring such advice should consult a professional in the relevant field.  The author welcomes readers’ comments and suggestions, which may be sent to him at legalbriefs@atada.org

 

 

EndNotes:

[1] The text of the proposed law (S. 2165 and H.R. 3846) is at https://www.congress.gov/bill/116th-congress/senate-bill/2165/text?q=%7B%22search%22%3A%5B%22Safeguard+Tribal+Objects+of+Patrimony%22%5D%7D&r=2&s=2

[2] “Bipartisan, Bicameral STOP Act To Safeguard Tribal Items Introduced,” (July 18, 2019 press release from the office of U.S. Representative Tom Cole), https://cole.house.gov/Bipartisan-Bicameral-STOP-Act-Introduced

[3] Mary Hudetz, “U.S. lawmakers propose ban on export of tribes’ sacred items,” (Associated Press: July 18, 2019), https://www.adn.com/nation-world/2019/07/18/us-lawmakers-propose-ban-on-export-of-tribes-sacred-items/

[4] Ibid.

[5] “Bipartisan, Bicameral STOP Act to Safeguard Tribal Items Introduced.”

[6] “2019 STOP Act: Fixing a Flawed Indian Art Bill: Undermining Established Public Policy Is Harmful to Museums, Businesses, Native Artists, and Tourism,” Cultural Property News (July 24, 2019), https://culturalpropertynews.org/2019-stop-act-fixing-a-flawed-indian-art-bill/

[7] Definitions of the last two of these categories occasionally appear in this column.  For further information, I direct you to “NAGPRA Glossary,” National NAGPRA (National Park Service, U.S. Department of the Interior, n.d.)  https://www.nps.gov/nagpra/TRAINING/GLOSSARY.HTM

[8] The Federal Register can be found online at https://www.archives.gov/federal-register/the-federal-register

[9] According to the notice: “The Oyster Catcher Rattle [dated circa 1870] was previously owned by John A. Buxton of Shango Galleries, and was purchased by Harrison Eiteljorg in [sic] November 15, 1979….The Shaman’s Staff, dated circa 1880, was purchased by Harrison Eiteljorg from Tom Julian, in June 1980.  It was originally owned by Howard Roloff….The Shaman’s Hat, dated circa 1800….was purchased by Harrison Eiteljorg from Sotheby’s, Parke-Bernet in April 1981.  The Shaman Spirit Helper, dated circa 1850, was purchased by Harrison Eiteljorg from Richard Rasso in April 1981.” 

[10] These pieces came from the donation that forms the institution’s David W. May Collection, for which see “David W. May Collection,” University of San Diego, University Galleries (2019),  https://www.sandiego.edu/galleries/collections/david-w-may-collection.php

[11] In 2003, the Southwest Museum, an iconic institution founded in Los Angeles in 1907 by photographer, preservationist, journalist, archaeologist, and Indian rights activist Charles F. Lummis (1859-1928), with the Autry Museum of the American West (originally called the “Gene Autry Western Heritage Museum” in honor of its chief benefactor).

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Legal Issues...2019 STOP Act: Fixing a Flawed Indian Art Bill

This article was originally published on the Cultural Property News website. It is reprinted here with permission.


2019 STOP Act: Fixing a Flawed Indian Art Bill

Undermining Established Public Policy Is Harmful to Museums, Businesses, Native Artists, and Tourism

by CCP Staff

Side of the National Museum of American Indian in Washington, D.C., Author Aguebor, 10 September 2017. Wikimedia Commons.

Side of the National Museum of American Indian in Washington, D.C., Author Aguebor, 10 September 2017. Wikimedia Commons.

A third version of the Safeguard Tribal Objects of Patrimony (STOP) Act, (H.R. 3846 in the House) was introduced on July 18, 2019. Sponsor Senator Martin Heinrich, who introduced a parallel Senate bill (S.2165), says the STOP Act will “prohibit the exporting of sacred Native American items and increase penalties for stealing and illegally trafficking tribal cultural patrimony.”

Others vehemently disagree. ATADA, an art dealer, collector and museum organization, has advocated strongly for protecting sacred items and established a grass-roots, community-based program to return sacred objects to tribes. ATADA says that the bill will be disastrous for all businesses selling Native art across the country, for tourism in the Southwest, and for Native American artisans.

“We all want to halt illegal trafficking and bring sacred items back to tribes. Building ethical relationships with the tribes is an important part of ATADA’s job. It’s the foundation of our Bylaws and our community-based Voluntary Returns Program. We’ve brought close to 200 important sacred items back to tribes in just a few years,” says ATADA’s President, Kim Martindale. “These items were lawfully owned by private collectors, but they needed to go back to support the tribes’ goals.”

But, according to Martindale, “This 2019 STOP Act is seriously flawed. It doesn’t just restrict export of sacred items. It requires a permit for items as low as $1 in value and keeps secret what can and can’t be exported. The way this bill is written, it can require every person carrying or shipping an Indian item out of the U.S., including small items purchased by tourists, to submit a photograph and a form through a federal system that will have to be created from scratch. To get an export permit, each item will be subject to tribal review covering the 568 federally registered tribes, plus Hawaiian organizations and Alaskan villages. The review system will operate in secret, and without any time limit.”

Because the bill doesn’t specifically identify what it covers and can include commercial items, it will force people to guess whether they need to apply for a permit. Martindale explained, “There is not even a way to find out the reason for a seizure through a Freedom of Information Act request.” Under the bill, the item does not have to be illegally owned or stolen to be seized. “If they guess wrongly,” he said, “not only is the item seized, there is little they can do to appeal.”

ATADA’s analysis notes that there are even more serious flaws in the STOP Act that should give legislators pause.

ATADA says the immediate effect will be to discourage tourism, paralyze small businesses, and harm Native artisans. “Can you imagine,” say Martindale, “what the effect will be the first time a tourist has an item seized, not because there is anything wrong with it, but only because it has not been subjected to this tribal review?” He grimaced. “Once the word gets around at home, that’ll be the last Italian or German tourist that will come to Santa Fe, and that will really hurt the tribal artisans that rely on the tourist market for most of their annual income.”

Martindale says that his organization wants to work with all parties to fix the bill.

“In 2018, ATADA worked together with tribes and legislators to craft a bill that would protect sacred items. H.R. 7075, the Native American and Native Hawaiian Cultural Heritage Protection Act of 2018, was designed to enhance protections for Native American cultural heritage. It established a practical system for export based around a U.S. Customs system already in place, enabled tribal review, punished violators, and at the same time, allowed businesses to self-certify low value items so the trade in all Indian arts and crafts would not come to a halt.”

Unfortunately, he says, the 2019 STOP Act completely ignores the solutions agreed to and the congressional session ended while the 2018 bill was still in committee. “We can do better than this, working together.”

Practical Issues with 2019 STOP Act:

  • No dollar threshold.

  • No coordination with U.S. Customs export systems.

  • No self-certification as agreed to in negotiations with the Acoma tribe in 2018.

  • No limit on the types of material that can be restricted.

  • Includes commercially made items and recently-made art among items requiring tribal review.

  • 2019 STOP Act language is ambiguous and is not clearly defined.

Public Policy Issues with 2019 STOP Act:

  • The unlimited time frame for processing will make it impossible for American businesses to participate in the international art market.

  • The documentation requirements for low value items will push small businesses out of the tourist market.

  • Much of the 2019 STOP Act is redundant to existing U.S. law.

  • There is no evidence showing that STOP is needed. The GAO reports for previous versions of STOP counted the overseas sales (and counted the same objects multiple times) without identifying any items as actually sold in violation of ARPA, NAGPRA or other US law.

Museum Issues with 2019 STOP Act:

  • STOP 2019 treats NAGPRA’s definition of “cultural items” as one category when NAGPRA has five separate categories of cultural items with separate statutory definitions.

  • NAGPRA claims are dealt with in a case-by-case process with museums; the tribes must demonstrate proof of a claim. Under STOP, tribes have no need to show affinity or substantiate that an object may be claimed. “Cultural items” under NAGPRA often refer to objects known only to specific tribes among the 568 currently federally recognized tribes.

  • The 2019 STOP Act makes it illegal to export “cultural items” – a term that includes items that are not subject to NAGPRA repatriation, and might only be known to certain people in certain tribes. Export by museums of some of these items, which could well have been legally-acquired decades ago, could put museums in violation of the STOP Act.

  • While museums generally do not export objects for commercial purposes, they might make loans to foreign museums, which would be prohibited under the 2019 STOP Act, should one of the exported objects be claimed by a tribe.

Constitutional Issues with 2019 STOP Act:

  • Criteria for Export Certification is based on a secret decision by reviewing tribes.

  • Items can be prohibited export even if they are legally owned.

  • Criminal penalties of up to ten years incarceration for exporting lawfully owned items without a permit.

  • Law does not require “knowing” wrongdoing for there to be a crime.

  • Does not require proof of violation of U.S. law.

  • Terms are so vague seizure of objects exported in good faith will result.

  • No constitutionally mandated due process. No list of forbidden items exists.

  • Evidence from tribes is withheld from exporters.

  • Reverses the American concept of innocent until proven guilty. It places the entire burden of proof for enabling export on an exporter, even a tourist.

  • Eliminates Freedom of Information Act access to information.

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Legal Briefs: NAGPRA Catch-Up

by Ron McCoy

The Tewa Pueblo at San Juan, via Wikimedia Commons

The Tewa Pueblo at San Juan, via Wikimedia Commons

As readers of this column know, the Native American Graves Protection and Repatriation Act (NAGPRA), which the U.S. Congress passed and President George H.W. Bush signed into law back in 1990, continually ripples through the small universe of the tribal art world’s dealers, collectors, and curators. 

This is because NAGPRA came weaponized with a mandate for effecting the repatriation of particular types of materials from certain institutions to American Indian and Native Hawaiian tribal entities and individuals.  The institutions involved are those which fall within NAGPRA’s broad definition of “museums.” The items in question are those which meet the law’s requirements for inclusion within its “sacred objects” and/or “objects of cultural patrimony” categories.  In such cases, the operating theory is that an object’s removal from the tribal sphere was illegitimate from the get-go, which makes restitution the logical remedy.  

Like many of you, I’ve become concerned over the years by what seems to be, increasingly,  an over-broad interpretation of NAGPRA’s sweep and scope as originally intended, coupled with a disturbing reliance on arriving at conclusions with the help of “self-evident” evidence which is anything but self-evidentiary.  It is difficult to see these developments as anything other than a significant detour on the road NAGPRA’s originators thought they laid out back in the day when MC Hammer’s “U Can’t Touch This” leaped onto the Billboard hundred hot-singles list.

That was then and this is now. My sense that NAGPRA is becoming increasingly and uncomfortably non-transparent is a topic I hope to explore here soon.

For now, it’s time to catch up on those notices of intent to repatriate items that appear on an irregular basis in the Federal Register.  These notices reflect an agreement between the institution holding a piece and a claiming party as to whether the item is a sacred object and/or object of cultural patrimony under NAGPRA.  The notice stipulates to what/whom the piece will be repatriated, pending a competing claim lodged in response to the notice’s publication.

The notices summarized here, which bring the summaries as they appear in “Legal Briefs” up to the end of April 2019, are listed in the most-to-least-recent order as published in the Federal Register; all quotes come from those notices.

       

Tlingit/Haida S’aaxw (Hat) and Keet Koowaal (Killerwhale with a Hole in its Fin)
• Objects of Cultural Patrimony

Birmingham Museum of Art, Birmingham, AL (April 29, 2019): The two pieces addressed in this notice were obtained at Wrangell, AK, by Axel Rasmussen, who worked as a school superintendent there and at Skagway from the late-1920s until his death in 1945.[1]  The pieces are, basically, undescribed.  However, we do learn from this notice that they consist of a S’aaxw (hat) purchased from another museum in 1956, and a Keet Koowaal (Killerwhale with a Hole in its Fin) which found its way to the institution through purchase from an art gallery. The museum determined these pieces were objects of cultural patrimony that legally belonged with the Central Council of the Tlingit & Haida Indian Tribes in Alaska.

 

Trunk of Omaha “Medicinal Bundles”
• Sacred Object

Nebraska State Historical Society, DBA History Nebraska, Lincoln, NE (April 24, 2019): Charles Amos Walker, an Omaha, was fourteen when he arrived at Carlisle Indian Industrial School in Carlisle, Pennsylvania, in 1908.[2]  Later, he became the first chair of the Omaha Tribal Council, on which he served for more than a quarter-century.  In 1962, over fifty years after he showed up at Carlisle, Walker gave the state historical society “a trunk containing medicinal bundles” previously in the possession of his grandfather.[3]   In a letter, he asked the institution to preserve the “Indian relic known as bundle.”

The historical society “first initiated consultation on this collection by sending a NAGPRA summary to the Omaha Tribe of Nebraska in 1993.”  However, the notice indicates it did not hear about Walker’s trunk until 2018, when a lineal descendant of his asked for it to be repatriated as a sacred object.[4]  The institution agreed the trunk of “medicinal bundles” Charles Walker entrusted into the museum’s care “contains specific ceremonial objects needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents,” which should be turned over to Walker’s lineal descendant.

 

Tolowa Dee-ni’ Basketry and Other Materials
• Sacred Objects/Objects of Cultural Patrimony

San Diego Museum of Man, San Diego, CA (Feb. 8, 2019): Between an unknown date and 2002 the museum was given, purchased, or obtained through exchange the forty-nine objects covered by this notice.  Most of the pieces consist of basketry – ten mush baskets plus others created for cooking, storage, and various additional purposes, are defined as objects of cultural patrimony; nineteen basket caps qualified as sacred objects – while other types of articles include: a buckskin headband decorated with red woodpecker and cormorant or mallard feathers; an otter-skin quiver; and a buckskin dress decorated with abalone shell and glass beads.

Representatives of the Tolowa Dee-ni’ Nation, previously referenced as the Smith River Rancheria, “informed the Museum that the items identified…as sacred objects are needed by present-day religious leaders for use in modern day religious ceremonies by the Tolowa Dee-ni’ adherents, including the Naa-yvlh-sri-nee-dash (World Renewal Feather Dance), the Ch’a-lh-day wvn Srdee-yvn (Flower Dance), and the Shin-chu Nee-dash (Summer solstice Nee-dash).”  In addition, the Tolowa Dee-ni’ Nation regards those pieces identified as objects of cultural patrimony as “communally owned by the Tolowa Dee-ni’ Nation…and to be inalienable by any individual.”

The museum agreed all of these objects should be repatriated to the Tolowa Dee-ni’ Nation in California.

 

Tlingit Baskets and Other Material
• Sacred Objects/Objects of Cultural Patrimony

George Fox University, Newberg, OR (Feb. 8, 2019): This notice references twenty-six objects, which, between 1880 and 1920, “were removed from [the Tlingit settlement at] Kake, AK, by missionaries and others visiting the area from Quaker congregations in Oregon.”  (The Quaker connection here is attributable to the denomination’s founding of the university in 1885.) 

The collection includes ten baskets (one with beading), two wooden carved canoe paddles, three miniature paddles, a model canoe, face from a totem pole, bone ladle, “one medicine man mask, one rattle used by medicine man, Rattle/Charm with Eagle and killer whale design,” as well as other pieces.

The notice explains that the NAGPRA and Historic Properties coordinator for the Organized Village of Kake “was able to identify unique weaving patterns and other details indicating that items were from Kake, and were created by members of the Tlingit tribe.”  In addition, he “has revealed the identity of these items.” 

The museum decided to return the twenty-six objects to the Organized Village of Kake in Alaska.

 

Haudenosaunee Wampum Belt
• Object of Cultural Patrimony

New York State Museum, Albany, NY (Feb. 8, 2019): During the late 19th century, the museum acquired many Haudenosaunee (Iroquois) pieces through the efforts of Harriet Maxwell Converse 1836-1903), a dedicated folklorist, passionate poet, and indefatigable defender of Indian rights.  One of these is the two-feet-wide, two-inch wide Ransom wampum belt, which consists of rows of purple and white shell beads. 

In 1899, Converse stated she obtained the belt “from a direct descendant of Mary Jamieson [Jemison] – the celebrated white woman captive – in whose care it had been placed by the Senecas.  She guarded it till her death, when it reverted to her heirs, by whom it has been held until now – the fourth generation.  It is one of the national belts of the Senecas.”[5]

That said, the notice stipulates that Converse “identified the Ransom wampum belt as ‘Onondaga’…[and] reported that this wampum belt was used by women to spare the life of a prisoner [like Jemison].  As such, the Ransom wampum belt symbolizes the role of women in the adoption of captives.”

The museum concluded “the Ransom wampum belt is an object of cultural patrimony, as it relates to the functions of a Council” and should be transferred to the Onoondaga Nation in New York.

 

Yaqui Deer Head
• Object of Cultural Patrimony

U.S. Fish and Wildlife Service, Office of Law Enforcement, Rio Rico, AZ (Feb. 8, 2019): At the end of January 2018, according to the notice, “one cultural object was seized at the Port of Entry in Nogales, AZ.”  This was “identified by the Pascua Yaqui Tribe of Arizona as a Yaqui ceremonial deer head,” which the parties involved agreed was an object of cultural patrimony rightfully belonging to the Pascua Yaqui Tribe of Arizona.

 

Osage Life Stick, Tattooing Needle, and Stick Bundle
• Objects of Cultural Patrimony

St. Joseph Museums, Inc., St. Joseph, MO (Feb. 8, 2019):  This notice focuses on three pieces, all of them of Osage origin and each from the Harry L. George collection at the St. Joseph Museum.   In 1915, George, a St. Louis businessman, purchased an “Osage Life Stick” for $12.50 from Nebraska collector Vern Thornburgh, an item identified by noted American Indian ethnographer Francis La Flesche (1857-1932) as a ceremonial piece that formerly belonged “to one of the Buffalo clans of the Osage tribe.”  The next year, George shelled out $10 to the Indian Curio Company of Oklahoma City for what research indicated was a tattooing needle removed from an Osage sacred bundle.[6]  At a time unknown, George hit something of a trifecta in terms of NAGPRA when he obtained a bundle of counting sticks identified by representatives of the Osage Nation as “a consecrated item.”  These pieces, all considered objects of cultural patrimony, were slated for repatriation to the Osage Nation in Oklahoma.

 

Two Kumeyaay Groundstone Pestles and One Ecofact[7]
• Sacred Objects

San Diego Museum of Man, San Diego, CA (Feb. 4, 2019): During the three decades that elapsed between the 1920s and 1950s, the museum removed more than 1,500 objects while conducting archaeological reconnaissance of a site in San Diego County, California.  Three pieces in that array – two groundstone pestles and an ecofact (identified as such but not otherwise described) – qualified as sacred objects “needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.”  Accordingly, these items were scheduled to be repatriated to the Kumeyaay Nation.

 

Tolowa Mush Bowl (Xaa-ts’a’)
Object of Cultural Patrimony

Oakland Museum of California, Oakland, CA (Dec. 6, 2018):  In 1974, the museum received a 4-inch tall, 8-inch wide mush bowl “woven from twined bear grass with a diamond pattern.”  Sometime during “the 19th or 20th century…[it] was removed from an unknown location in California.” Representatives of the Tolowa Dee-ni’ Nation (formerly designated as the Smith River Rancheria, California) and the Yurok Tribe of the Yurok Reservation, California, identified the piece as Tolowa.  The museum agreed the basket qualified as an object of cultural patrimony, one imbued with “ongoing historical, traditional, or cultural importance central to the Native American group or cultural itself, rather than property owned by an individual.” 

It was agreed to turn the mush bowl over to the Tolowa Dee-ni’ Nation in California, which includes the Campo Band of Diegueno Mission Indians of the Campo Indian Reservation; Capitan Grande Band of Mission Indians of California (Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation); Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas Reservation; Ewiiaapaayp Band of Kumeyaay Indians; Iipay Nation of Santa Ysabel; Inaja Band of Diegueno Indians of the Inaja and Cosmit Reservation; Jamul Indian Village; La Posta Band of Diegueno Mission Indians of the La Posta Indian Reservation; Manzanita Band of Diegueno Mission Indians of the Manzanita Reservation; Mesa Grande Band of Diegueno Mission Indians of the Mesa Grande Reservation; San Pasqual Band of Diegueno Mission Indians; and the Sycuan Band of the Kumeyaay Nation, all located in California.

 

San Juan Pueblo Prayer Stick
• Sacred Object

Riverside Metropolitan Museum, Riverside, CA (Aug. 23, 2018):  In 1985, the museum was given a carved wood prayer stick, for which we are offered no further description. The year the donor obtained this object and the circumstances of its acquisition are not set forth, but its decorative elements include, at one end, an inscription written in orange ink: “John Trujillo/San Juan Pueblo.”  It was agreed this prayer stick is a sacred object; that is, “a specific ceremonial object needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present-day adherents.”  The museum agreed to transfer the prayer stick to San Juan Pueblo in New Mexico.

 

Please note: This column does not offer legal or financial advice.  Anyone requiring such advice should consult a professional in the relevant field.  The author welcomes readers’ comments and suggestions, which may be sent to him at legalbriefs@atada.org

 

Endnotes:

[1] “Beloit College Collections,” (n.d., accessed May 2, 2019). https://dcms.beloit.edu/digital/collection/logan/id/3274/

[2] “Charles Amos Walker Progress Card,” Carlisle Indian School Digital Resource Center, Archives & Special Collections, Waidner-Spahr Library, Dickinson College, Carlisle, PA (n.d., accessed May 15, 2019), http://carlisleindian.dickinson.edu/student_files/charles-amos-walker-progress-card

[3] According to the notice, Charles A. Walker’s grandfather was Alan Walker, who was born around 1838 and reportedly died in 1907.

[4] For an interesting account by that descendant, Marissa Miakonda Cummings, see her “Speaking to the Future, Honoring the Past,” OmahaMagazine.com (Aug. 26, 2016),  https://omahamagazine.com/articles/marisa-miakonda-cummings/

[5] William M. Beauchamps, “Wampum and Shell Articles Used by the New York Indians,” Bulletin of the New York State Museum, No. 41, Vol. 8 (Eb. 1901), 407.  In 1755, during the French and Indian War, Mary Jemison (1743-1833), a Scots-Irish immigrant, was captured by a Shawnee-French raiding party in central Pennsylvania.  At Fort Duquesne (Pittsburgh), Mary was acquired by Senecas, members of group with whom she remained for the rest of her long life.  Jemison’s story provided minister James E. Seaver with grist for one of the early, classic captivity narratives: James E. Seaver, A Narrative of the Life of Mrs. Mary Jemison, first published in 1824 and still in-print.

[6] For insight into the the various aspects of Native American tattooing, including the practice as a sacral act, see Aaron Deter-Wolf and Carol Diaz-Granados, eds., Drawing with Great Needles: Ancient Tattoo Traditions of North America (Austin: University of Texas Press, 2014).

[7] “Ecofacts are not made by humans, which is what distinguishes them from artifacts.  They are, instead, naturally occurring and unmodified materials used by humans.  Spanish moss used as bed lining would be an example of an ecofact.  A tree branch picked up and used as a back scratcher would be an ecofact.  The remains of the deer you shot and ate would be ecofacts.”  Laurie A. Wilkie, Strung Out On Archaeology: An Introduction to Archaeological Research (Routledge: London, 2014), 43.

Calendar Updates - June 2019

Here’s a look at some of the events and exhibitions going on this month.


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On June 7th, Adobe Gallery in Santa Fe will open their exhibition of works by a variety of Plains Indian Painters, including Allan Houser, Stephen Mopope, Carl Sweezy, Virginia Stroud, Fred Beaver and Doc Tate Nevaquaya.

www.adobegallery.com/shows/current


Saturday, June 15th, King Galleries - Santa Fe will be hosting a pottery demonstration and new works by Rainy Naha.

kinggalleries.com/santa-fe-events

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Also this month, Morning Star Gallery will be continuing the Summer Lecture Series: Introduction to Antique Native American Art,
by Gallery Director, Henry Monahan.

Part 2 ”History and Art of Spanish New Mexico”
June 15, 10:30am

Part 3: “Plains Culture and Beadwork”
June 29, 10:30am

More info at: www.morningstargallery.com/calendar


June 22 - 23 brings Brian Lebel’s Old West Show and Auction to the Santa Fe Community Convention Center.

www.oldwestevents.com/santa-fe-schedule-location

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June 25th, Heritage Auctions in Dallas presents the Ethnographic Art: American Indian, Pre-Columbian and Tribal Art Signature Auction

Full Preview
June 23-25, 2019

More info: fineart.ha.com/


See the Full Calendar ➤

*Please note that all listings are posted solely at the discretion of ATADA. We regret any errors or omissions in this calendar; we cannot be held responsible for incorrect or changed information.

Calendar Updates - May 2019

There is a lot to see and do this month!
In New York, the MATA show begins on May 10th, with several ATADA members exhibiting.
Bonhams and Christie’s are holding auctions on May 13th and 14th, respectively.
The Bourgogne Tribal Show is happening May 30 - June 2nd.
Adobe Gallery in Santa Fe is currently exhibiting paintings by Harrison Begay. The show runs through the end of the month.

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For more upcoming exhibitions and events, check out the Full ATADA Calendar ➤