Legal Issues

Judge Reverses Opinion - Dismisses Chaco Canyon Drilling Case

Chaco Canyon National Historic Park, Pueblo Bonito, Author: Greg Willis, from Denver, Colorado, USA, Wikimedia Commons.

Chaco Canyon National Historic Park, Pueblo Bonito, Author: Greg Willis, from Denver, Colorado, USA, Wikimedia Commons.

Judge James O. Browning has issued a memorandum opinion reversing his previous conclusion that the BLM had violated the National Historic Preservation Act (NHPA).

In his decision, Judge Browning determined that the BLM had met the minimum requirements of the NHPA and dismissed the case which had been brought by Diné Citizens Against Ruining Our Environment, San Juan Citizens Alliance, WildEarth Guardians and the Natural Resources Defense Council. 

More information about this case can be found on the Cultural Property News site and Federal judge tosses lawsuit over Chaco-area drilling by Andrew Oxford published in the Santa Fe New Mexican, April 25, 2018.

 

 

Chaco Canyon Update: The BLM Failed to Comply with the National Historic Preservation Act

Chaco Canyon National Historic Park, Pueblo Bonito, Author: Greg Willis, from Denver, Colorado, USA, Wikimedia Commons.

Chaco Canyon National Historic Park, Pueblo Bonito, Author: Greg Willis, from Denver, Colorado, USA, Wikimedia Commons.

Cultural Property News has an update on the current controversy surrounding oil and gas lease sales near Chaco Culture National Historic Park.  The U.S. District Court for the District of New Mexico has issued a preliminary order concluding that the BLM did violate the National Historic Preservation Act (NHPA). 

Read the full article here ➤

 

Black Panther and Museums: the need for a genuine dialogue

A recent article on The Hopkins Exhibitionist website discusses the need for a dialogue about the complicated relationships between museums and the cultures which created the objects in their collections.  

While this article is focused on African art, we should be aware of the possible impacts on all indigenous art in museums and private collections. 

Spoiler Alert: the article does discuss the opening scene of the movie. 

The ATADA Voluntary Returns Program

An overview of the ATADA Voluntary Returns Program has been published on the ArtDaily.com website. 

If you are not familiar with the program, please visit the Voluntary Returns page on our website for an in-depth look at how it works and why we think this community based approach is the best and most efficient method for the return of sacred and ceremonial objects. 

The ATADA Voluntary Returns Program is a community-based initiative designed to bring sacred and highly valued ceremonial objects to Native American tribes. Returns take place through a consultative process in which ATADA representatives work directly with tribal community and spiritual leaders. The program evolved through the recognition by art dealers and private collectors that certain objects, although legal to own, had great importance to tribal communities, and that their return could invigorate and enhance tribal community life.

Bears Ears Opinion piece from two Native American Tribal Leaders

In an opinion piece from The Mercury News, the leaders of two Native American Tribes in California speak about the removal of protections for Bears Ears and other national monuments...

From the article:

Bears Ears was the first national monument protected at the request of tribes and is collectively managed by a commission of tribal members.
By eliminating protections for this sacred national monument, the president is saying that there’s nothing worth protecting in these lands. This is an outrageous suggestion, a slap in the face to the tribes that call Bears Ears home, and an affront to Native Americans all across the country.

Read the Full Article ➤

ATADA Legal Committee 2017 Year-End Report

Throughout the year, the legal committee has been actively engaged in legislation impacting the tribal arts community. We raised serious legal, economic and practical questions about the 2017 Safeguard Tribal Objects of Patrimony Act (STOP Act) currently before both Houses of Congress. We have worked with business community leaders, legislators, and tribal representatives to make clear the harms resulting from passage of the STOP Act.
 
Together with other organizations, ATADA submitted extensive legal testimony showing how the STOP Act would damage fundamental U.S. public policy. We are grateful that the Senate Indian Affairs Committee heard our concerns and did not move the STOP Act forward this year.
 
While we have accomplished much, we believe this will be an ongoing effort. We expect some version of the STOP Act to come before Congress in 2018. ATADA will remain actively engaged and will continue to advocate on behalf of the museum, dealer and collector community.
 
At the same time, we have taken concrete steps to ensure the highest standards of due diligence among our dealer and collector members. ATADA membership continues to stand for the lawful, ethical trade in tribal art.
 
We’ve increased public outreach and educational work. All our members should know about ATADA’s outstanding public programming, including our sponsorship of the 2017 Santa Fe symposium: “Understanding Cultural Property: A Path to Healing Through Communication,” and participation in public events at the School for Advanced Research in Santa Fe. We appreciated the excellent participation and attendance by members at these important events.  Additionally, the ATADA News, which is available to all online, has expanded its coverage of many key issues. 
 
ATADA looks forward to continuing its work with tribal partners in ongoing, grassroots actions, such as the ATADA Voluntary Returns program, to strengthen cooperation and mutual understanding. This year, the Voluntary Returns program facilitated the return of dozens of donated objects to Native communities, including a number of highly-significant spiritual objects. These efforts have generated a very positive response. They have been beneficial in fostering dialogue with tribal leaders and building trust that ATADA members will continue to honor the sensibilities of Native peoples.
 
Robert Gallegos heads the ATADA Voluntary Returns program. Please contact him with questions regarding the donation process and to facilitate a return.
He can be reached at 505-262-0620 or gallegos@nmia.com.
 
For all this work to continue, we must ask for your financial support.
Your contribution is instrumental as we continue to advocate for the rights of museums, dealers and collectors while promoting cultural awareness and community-based alternatives over intrusive, damaging legislation.
 
You can contribute online at www.atada.org/legal-fund , or contact David Ezziddine at director@atada.org for more information on how to help.

Sincerely yours,
The ATADA Legal Committee


Contributions to the ATADA Legal Fund are vital to continuing these efforts. Please consider making a contribution today. Thank you!



ATADA Written Testimony Submitted to Senate Hearing on STOP Act 2017

On November 8th, 2017, the Senate Committee on Indian Affairs held a hearing on the Safeguard Tribal Objects of Patrimony Act of 2017.  ATADA President, John Molloy, had planned to present oral testimony before the committee; however, the only person allowed to testify in person was Governor Riley of Acoma Pueblo.   The committee did allow the submission of written testimony. A copy of this testimony can be downloaded by clicking the link below. 

Written testimony was also submitted by the Committee for Cultural Policy (CCP) and the Global Heritage Alliance (GHA). Both organizations have permitted us to make those documents available.  

No votes were taken during the hearing. The House Committee on Indian Affairs has not yet met to discuss the legislation.   

The full text of the Senate and House bills can be downloaded below:

S.1400

H.R.3211

We have made progress against this legislation, but there is still much to do.  This will be an ongoing issue for some time. ATADA will continue to voice our position on this legislation. We need your help to continue this work. If you have not done so, please contribute to the ATADA Legal Fund today.  Any amount is greatly appreciated! 
If you have made a contribution in the past, please consider doing so again. 

Information on how to make your contribution can be found on the Legal Fund page: atada.org/legal-fund

Contributor information is kept confidential. 

 

Cambodia seeking 5-year renewal of MOU to embargo import of all artifacts.

The Committee for Cultural Policy's (CCP) recent newsletter features an in-depth article explaining the history of the U.S. Memorandum of Understanding (MOU) and how it has been expanding in scope since 1999. 

The request will be considered by the Cultural Property Advisory Committee, meeting at the Department of State on October 23-24, 2017. 

From the CCP article: 

The first Cambodian ban took effect on December 2, 1999, when the U.S. imposed an emergency import restriction on Khmer stone sculpture and architectural elements from Cambodia, unless such objects were accompanied by export permits issued by the Government of the Kingdom of Cambodia, or by documentation demonstrating that they were out of the country before December 2, 1999.

Read the full article ➤

ATADA Testimony regarding the Indian Arts and Crafts Act

Statement of John Molloy, President, ATADA*
Written Testimony submitted to U.S. Senate Committee on Indian Affairs

For the Hearing: Cultural Sovereignty Series:
Modernizing the Indian Arts and Crafts Act to Honor Native Identity and Expression

Hearing date July 7, 2017 – Submitted for the Record July 17, 2017
Santa Fe, New Mexico

ATADA is an international organization honoring the artistic vision of indigenous people.
ATADA represents professional dealers of historic and contemporary tribal art from around the
world. We support the lawful circulation, trade, collection, preservation, appreciation, and study
of art and artifacts from diverse cultures.

Our objectives are to promote ethical and professional conduct among art dealers, to encourage
the responsible collecting, research, and study of tribal arts and culture, and to educate the public in the contribution of tribal cultures to the wealth of human experience.

As a condition of membership, ATADA members guarantee the authenticity of all objects that they offer for sale.

ATADA is deeply concerned by the misrepresentation and mislabeling of Native American, Native Alaskan, and Native Hawaiian works of art and craft. Misrepresentation deceives individual consumers and the public. When misrepresentation occurs, it also damages the reputation of the art trade as a whole. Bad business practices by a few bad apples can negatively impact many honest traders, Native artisans, art dealers, and other important commercial interests. There is a trickle-down effect to all legislation affecting Indian arts and crafts which impacts much larger constituencies and business interests, whether they are those of workers in the cultural tourism industry, or the diverse businesses that depend upon tourism, especially in the Southwestern region.

It is early in the legislative process and no specific amendments to the Indian Arts and Crafts Act have yet been proposed. Without having actual proposed amendments to respond to, ATADA states that it supports in principle the amending of the Indian Arts and Crafts Act to provide greater protections for consumers and the public, Native artists, and the legitimate art trade. However, ATADA notes that currently, prosecutors and tribal plaintiffs have excellent tools to combat fraud and misrepresentation in domestic matters, and to require proper, indelible labeling in foreign imports. The problem is not that stronger laws are needed; resolution requires more and stronger enforcement of existing laws, and funding to ensure that tribes are equipped to fight using the legal tools already to hand.

Testimony at the hearing by Damon Martinez, former U.S. Attorney for New Mexico, pointed out the need to distinguish between (1) steps to improve the U.S. Customs marking requirements for imports to ensure that the items are not later misrepresented, and (2) steps to halt and penalize misrepresentation and other unfair business practices in the U.S.

PROPER MARKING ON IMPORTED GOODS
Proper marking is a key issue, as has been made clear by the descriptions at the hearing of arrests and prosecutions of large scale wholesalers alleged to have imported copies of Native American jewelry from the Philippines. Continuing investigations and prosecutions of individuals and corporate entities found to be engaged in wrongful wholesale imports appears to be working very well and will put a significant dent in any fraudulent activity, if it does not end it altogether.

ATADA recognizes the inherent difficulties in indelibly marking very small objects (such as certain jewelry items) with the country of origin. Tagging protocols should not interfere with the lawful importation and sale of properly identified items. However, packaging and other options may provide a more flexible mechanism to make clear the origin of a very small object. Larger items could reasonably be indelibly marked through a variety of means.

If millions of dollars’ worth of fraudulently imported jewelry has been seized, as stated at the hearing, the federal government ought to do its best to fill this gap in inventory and at the same time, encourage economic development that would benefit tribal artists. One wonders whether the National Park Service could work with the Indian Arts and Crafts Board or with tribal communities to bring more authentic Native American arts and crafts into the federal parks’ concessions, especially in Indian Country, and make authenticity a primary selling point.

Native artists receive recognition for the authenticity of their work when it is sold in the U.S. or elsewhere is another important task, in which enforcement of consumer protection laws is key. Marking options that would distinguish authentic contemporary Native American artworks and crafts could facilitate enforcement.

Antique items cannot easily be marked without damaging the integrity of the object. No rules requiring marking should be employed for antique items. In this situation, consumers should be able to rely of a written receipt and guarantee that items are as represented; guaranteeing authenticity is mandatory for ATADA members already.

AUTHENTICITY AND CONSUMER RIGHTS UNDER STATE LAW
ATADA strongly supports strengthened scrutiny of items offered for sale to the public as Native American and rigorous enforcement of consumer protections. We note that in New Mexico (and in several other states) state consumer protection laws can be a significant deterrent to bad businesses. Government should provide flexibility under the Indian Arts and Crafts Act for the Indian Arts and Crafts Board to provide advice and support to plaintiffs regarding state laws as well. This could enable cases to be brought on behalf of artisans and consumers at a lower cost, and to reap greater damages from violators.

For example, New Mexico’s Indian Arts and Crafts Sales Act, NMSA 1978 § 30-33-7 makes it unlawful to barter, trade, sell, or offer for sale or trade any article represented as produced by an Indian unless the article is produced, designed, or created by the labor or workmanship of an Indian. NMSA 30-33-10 grants a private right of action to all consumers, and NMSA 1978 30-33-6 establishes a duty on the part of the seller to enquire whether an item is authentically Indian and a duty to correctly label the item at the point of sale.

Misrepresenting an item as Native American when it is not is a deceptive trade practice under NMSA 1978 § 57-12-2.D(4), which prohibits using deceptive representations or designations of geographic origin in connection with goods and services. Willful violation of the standards creates liability for sellers of non-Indian goods under New Mexico laws of triple actual damages or $300.00, whichever is greater, under New Mexico’s Unfair Practices Act, NMSA 1978 57-12-10.B.

Attorney fees for plaintiffs are more easily available under both New Mexico’s Unfair Practices Act (NMSA 1978 § 57-12-10.B) and the Indian Arts and Crafts Sales Act , NMSA 1978 § 30-33-1, both of which provide that on showing of a violation, the court must award attorney fees and costs.

COPYRIGHT AND TRADEMARK
Copyright and trademark were also briefly discussed at the hearing. Much of the discussion surrounding misrepresentation of Indian art at the hearing was in regard to wholesale importation of jewelry and textiles in imitation of Native American artistic styles. A “style” cannot be copyrighted, and even specific designs that are considered “traditional” were never copyrighted and are not eligible to be copyrighted now under the U.S. Copyright Act of 1976 (Public Law 94-553, October 19, 1976).

Nonetheless, the specific creations of contemporary jewelers and weavers may be copyrighted, if they are deemed “original” under the law and meet other copyright requirements. While acknowledging that federal trademarks can be expensive to acquire, ATADA suggests that tribal organizations might consider establishing tribal trademarks that would serve as both an identifying mark and a marketing vehicle. ATADA supports federal funding to facilitate economic development programs within the tribes to provide education and assistance in trademark and copyright for tribal artists and artisans through the Indian Arts and Crafts Board, tribal heritage offices or tribal governments.

CONCLUSION
ATADA urges the Senate Committee on Indian Affairs to consult with tribal government and economic development offices in order to determine the most direct and effective means of establishing authenticity for artworks in the market. The most successful measures will be those that boost consumer confidence and encourage the artists of the Native American community to continue to produce the outstanding works of art that represent Native American creativity and skill and that have come to symbolize the wonderfully diverse and unique Southwestern culture.

ATADA looks forward to further discussions with the Senate Committee on Indian Affairs on this and all other legislation affecting the interests of the trade in contemporary and antique Indian art.

 

*ATADA is a professional organization established in 1988 in order to set ethical and professional standards for the art trade and to provide education for the public. ATADA membership has grown to include hundreds of antique and contemporary Native American and ethnographic art dealers and collectors, art appraisers, and a strong representation of museums and public charities across the U.S., dedicated to the promotion, study and exhibition of Native American history and culture.
www.atada.org. email: director@atada.org, PO Box 45628, Rio Rancho, NM 87174.

 

ATADA's Response to Libyan Government's Claims to Jewish and Ethnic Tribal Heritage


On July 20, 2017, ATADA urged the Cultural Property Advisory Committee at the Department of State to reject the Libyan government's claim to Jewish and ethnic tribal heritage. A request to block all art and artifacts from Libya up to 1911 from entering the United States appears to be the next step in a movement to bar entry of all art from the Middle East to the US. The Libyan Request for a Memorandum of Understanding (MOU) under the Cultural Property Implementation Act (CPIA) will limit access of all Libyan-Americans to their heritage, regardless of their religious or ethnic background, will prevent US museums from acquiring representative examples of Libya’s place in world art history, and is a slap in the face to Jewish citizens whose families were forced to leave Libya, abandoning all they had.

The Libyan request is extremely broad, covering the entire history of the geographic region that is Libyan territory from the Paleolithic through the Ottoman Era (12,000 B.C.-1750 A.D.). and on its ethnological material dating from 1551 to 1911 A.D. It covers everything from prehistoric tools to Classical antiquities of the Roman period to Islamic furniture, brassware and calligraphy to nomadic herdsmen’s baskets and cooking pots – and everything in between. The request is generic and expansive, rather than specific, as the statute, the Cultural Property Implementation Act (CPIA), requires.

The ethnographic materials also include all Tuareg and Berber items of material culture up to the year 1911, made from stone, metal, ceramic and clay, wood, bone and ivory, glass, textile, basketry and rope, leather and parchment, and writing.

In the attached 9-page response to the Libyan request, ATADA states that not a single criteria set by Congress is met in Libya’s request, whether in the case of Classical antiquities, which the Libyan government has said were not at risk of looting or destruction only a few months ago, in the ethnographic materials of the Tuareg, or in the artifacts remaining from Libya’s Jewish community, which was some 40,000 people in the early 20th century, but not a single Jew remains today.