NAGPRA (Increasingly Opaque) Repatriations through April 20, 2020
by Ron McCoy
Totem poles outside of Chief Shakes' home, Wrangell, Alaska, 1895
The way things — “things” being synonymous with “pretty much everything” — have been going of late, it’s not surprising the repatriations of objects carried out under the Native American Graves Protection and Repatriation Act (NAGPRA), which the U.S. Congress passed back in 1990, occupy at best a backburner for most of us just now. Nevertheless, NAGPRA remains in effect and its impact continues rippling through the world of antique tribal art dealers, collectors, curators, and scholars.
By way of a quick summing-up: NAGPRA is dedicated in part to repatriating “cultural items”[1] — physical objects — of Native American and Native Hawaiian origin from any institution satisfying its broad definition of “museum.”[2] In order to be eligible for repatriation, a piece must satisfy NAGPRA’s requirements for including it in one (or more) of its five categories: human remains, associated funerary objects, unassociated funerary objects, sacred objects and objects of cultural patrimony. The two categories that regularly receive attention in this space are sacred objects[3] and objects of cultural patrimony.[4]
Announcements of a decision to repatriate objects — issued, pending the arrival on the scene of one or more competing claims on the piece — appear on an irregular basis in the Federal Register. These notices are supposed to let us know: (a) the institution involved; (b) the identity of the claimant(s); (c) information about the piece and its history; and (d) the person or body to which a piece will be repatriated. (Unless otherwise indicated, the quotes used in reporting these notices comes from the notices themselves.)
Each component of a notice of intent to repatriate — identifying the parties to the agreement; explaining what the piece is and why/how it satisfies the law’s requirements for inclusion NAGPRA’s sacred objects and/or objects of cultural patrimony categories; and, finally, the reveal: where it’s going now — is important in and of itself. That’s why, as I read through a notice, it’s the description of a piece and its history that looms especially large — particularly with respect to what types of objects, specifically, the law embraces.
After all, without that, how can we possibly know what, exactly, is being repatriated? Please keep that in mind when glancing at the final two notices in the current column.
Here, then, are summaries of NAGPRA notices of intent to repatriate sacred objects and objects of cultural patrimony that appeared in the Federal Register through April 20, 2020.
Tlingit Killerwhale Hat, Rich Man’s Cane (Killerwhale Cane), Marmot Mask, Bear Headress, Bear Shirt, Sea Monster Pipe, Grizzly Bear Mask
Objects of Cultural Patrimony/Sacred Objects
Thomas Burke Memorial Washington State Museum, University of Washington, Seattle, WA (April 20, 2020): This notice highlights seven pieces of Tlingit origin.
Five of the seven objects were purchased by the museum in 1953 from the widow of Walter C. Walters, who operated the Bear Totem Store curio emporium at Wrangell, in southeastern Alaska.[5] Walters opened his enterprise in 1922, after acquiring works of Northwest Coast indigenous art while working as a mail carrier and fur buyer in the region.[6] The notice states Walters “removed” these pieces from Wrangell between 1920 and 1953, although the details of these transactions and exchanges appear unknown. The five objects addressed by this part of the notice are: a Killerwhale Hat, Rich Man’s (or Killerwhale) Cane, Marmot Mask, Bear Headdress, and Bear Shirt.
The notice also covers a Sea Monster Pipe, which was removed from Wrangell at a time and under circumstances unknown before ending up with art dealer Leonard S. Lasser, who donated it to the museum in 1972.
The fifth, final item repatriated under this notice is a Grizzly Bear Mask acquired between 1926-1937 by Axel Rasmussen, the superintendent of Bureau of Indian Affairs schools in Wrangell from the late 1920s until 1937, when he took up a similar position at Skagway.[7] Part of the Rasmussen collection acquired by the Portland Art Museum in 1948, the Grizzly Bear Mask was subsequently deaccessioned and acquired by noted Northwest Coast specialist Bill Holm, who donated it to the Burke Museum in 1974.
The notice references photographs showing some of the pieces listed here in situ, as it were: one of Chief Shakes, the fifth of that name, lying in state in 1878, with some of the objects surrounding him;[8] another of the interior of the clan home of his successor, Shakes VI, where some of the material was kept.[9]
Each of these items was originally collected at a time when Tlingit people were undergoing crushing hardships associated with the sort of dispossession and exploitation commonly associated with the saga of indigenous contact with the commercial, political, and spiritual representatives of European and Euroamerican cultures.[10]
All of these pieces were deemed objects of cultural patrimony and sacred objects under NAGPRA for purposes of turning them over to the Wrangell Cooperative Association and the Central Council of the Tlingit & Haida Indian Tribes in Alaska.
Hawaiian Zoomorphic Bowl, Basalt Cup
Sacred Objects
State of Hawaii, Department of Transportation, Honolulu, HI (Mar. 3, 2020): Between 1989-1992, highway construction in northeastern Molokai’s Halawa Valley led to the retrieval of archaeological finds, chiefly unassociated funerary objects. Among them: a zoomorphic bowl and basalt cup — listed in the notice but otherwise undescribed — which appear to have been the subject of some sort of unassociated funerary objects mix-up this notice evidently seeks to rectify. Both pieces were categorized as sacred objects and slated for transfer to lineal descendants of the person for whom the burial was created.
Wooden Carving of Laka, Founder of Hula
Sacred Object
Thomas Burke Memorial Washington State Museum, University of Washington, Seattle, WA (Jan. 3, 2020): In 1997, Hawaiian traditionalist artist Rocky Ka’iouliokahihikolo’Ehu Jensen “brought” the carved wooden piece covered by this notice to the museum.[11] The carving represents Laka, a female figure from the time of legends, credited as the patron of and likely originator of Hula on the island of Molokai.
The widely-held popular image of hula most likely involves an amalgam of snippets of ambient surf-sound, Don Ho warbling “Tiny Bubbles,” and scenes of happy-happy dancers waving their arms and wiggling their hips at beachside resorts’ jam-packed luaus. Whatever the entertainment value of those amusements, the motions and chants of hula, as practiced by the more traditionally minded, constitute what is nothing less than “a religious service, in which poetry, music, pantomime, and the dance lent themselves, under the forms of dramatic art, to the refreshment of men’s [sic] minds.” The “view of life” presented in hula performance, was “idyllic, and it gave itself to the celebration of those mythical times when gods and goddesses moved on the earth as men and women and when men and women were as gods.”[12]
The writer of those lines was Nathaniel B. Emerson (1839-1915), a physician, student of Hawaiian culture, and son of early Protestant missionaries to the islands. Christian missionaries like Emerson’s parents started descending in numbers during the 1820s on the Sandwich Islands, a common moniker for Hawaii until local naming practices acquired greater traction.
These missionaries generally perceived indigenous religious practices and observances as quite literally beyond the pale. Consequently, they expended considerable energy and effort addressing the competing Polynesian ethos with hostility. An example of this is seen in their lobbying among converts within the ruling elite for hula’s suppression, a goal first achieved in 1830.[13] (Among those advocating a hula ban was Emerson’s missionary father.)[14] Not surprisingly, hula — much like the Northwest Coast potlatch, Plains Sundance, and countless other ritualized expressions of cultures under assault — became a symbol of group resistance, survival, and a sort of cultural renaissance within population whose members felt very much under attack.
After consultations with representatives of the Native Hawaiian organization Nä Lei O Manu’akepa, the museum concluded the piece “is a necessary component which holds a very important role in the sacred Kuahu Ceremony of traditional Hula practitioners.” Basically, it is seen as nothing less than “a manifestation of the Hula patron, Laka, to which traditional Hula practitioners conduct ceremonies and rituals with offerings for inspiration, guidance and protection in their present-day cultural work and practices.”
The museum agreed the piece depicting Laka is a sacred object which should be dispatched to the Nä Lei O Manu’akepa.
Thirty-One Unidentified Pieces (Masks) Identified as Hopi Sacred Objects
U.S. Department of Justice, Federal Bureau of Investigation, Art Theft Program, Washington, D.C. (Jan. 3, 2020): The notice tells us that at a time unknown thirty-one “sacred objects were acquired and transported to the East Coast, where they remained part of a private collection of Native American antiquities, art, and cultural heritage.” Then, sometime in the spring of 2018, the FBI came calling and seized the pieces in connection with an unspecified criminal investigation. After “multiple consultations” with archaeologists and Hopi representatives, it was determined the pieces should be transferred to the Hopi Tribe of Arizona. As to the type of objects not otherwise described, they are “ceremonial objects that had been misidentified by the collector as ‘masks.’”
Unidentified Object (Mask) Identified as Zuni Sacred Object
U.S. Department of Justice, Federal Bureau of Investigation, Art Theft Program, Washington, D.C. (Jan. 3, 2020): The notice informs us that at an unspecified time an undescribed object, obtained by an unidentified party or parties, was “transported to the East Coast, where it remained part of a private collection of Native American antiquities, art, and cultural heritage.” We are told that in the spring of 2018 this piece “was seized by the FBI [Federal Bureau of Investigation] as part of a criminal investigation.”
The notice breaks out momentarily from its cocoon of coyness to let us know that what we are actually discussing here “is a ceremonial object that had been misidentified by the collector as a ‘mask’” which, pending competing claims, would be given over to the Pueblo of Zuni in New Mexico.
So, when it comes down to the heart of the matter, we (probably) do know what the items in the last two notice summaries are after all: masks. What kind? What age? What materials? What anything?
We do not know.
A law’s utility is inherently linked not only to the circumstances and manner of its crafting, but also in the degree to which it remains transparent and credible, the extent to its purpose for existing and how it’s applied. In this, NAGPRA has been stumbling. How can we know what is considered a sacred object or object of cultural patrimony under NAGPRA — and therefore something eligible for repatriation — unless we are told what the object is, in more detail than its inclusion within a very general category of materials?
Having followed the appearance of NAGPRA’s intent to repatriate notices for more years than I care to count, it seems the law as expressed in them is becoming increasingly opaque; in some instances, hopelessly and unhelpfully useless. There are many exceptions, but the rot of opacity and the confusion it generates and in which it thrives may have settled in for the long haul.
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] Under NAGPRA, “cultural Items” means: “Human remains, associated funerary objects, unassociated funerary objects, sacred objects, [and] cultural patrimony.” “Native American Graves Protection and Repatriation Act: Glossary,” National Park Service (2020), https://www.nps.gov/subjects/nagpra/glossary.htm
[2] With NAGPRA, a museum is “[a]ny institution or State or Local government agency (including any institution of higher learning) that receives Federal funds an has possession of, or control over, Native American cultural items.” Ibid. That definition specifically excludes “the Smithsonian Institution or any other Federal agency.”
[3]For NAGPRA’s purposes, a “sacred object” is a piece “needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day [sic] adherents.” Ibid. Ibid.
[4] An object is deemed to be “cultural patrimony under NAGPRA if it has “ongoing historical, traditional, or cultural importance central to the Native American group or cultural itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe or such Native American group at the time the object was separated from such group.” Ibid.
[5] The Bear Totem Store presented a colorful, exotic aspect for visitors, as photographs taken from around 1927 (https://vilda.alaska.edu/digital/collection/cdmg21/id/23028/) and 1939 (https://digitalcollections.lib.washington.edu/digital/collection/ alaskawcanada/id/3243/) indicate.
[6] Bonnie Demerjian, Images of America: Wrangell (Charleston, SC: Arcadia, 2011), 30; Greg Knight, “Wrangell’s Tlingit Art on Display at Two Museums,” Wrangell Sentinel (Sep. 20, 2012), https://www.wrangellsentinel.com/story/2012/09/20/news/wrangells-tlingit-art-on-display-at-two-museums/525.html
[7] “Dagger,” Beloit College Digital Collections (n.d.), https://dcms.beloit.edu/digital/collection/logan/id/3274/
[8] For the photo of Shakes V lying in state with those objects see https://www.bgc.bard.edu/objects-exchange-chief-shakes
[9] An image showing Shakes VI “at home with possessions” in 1907 is at https://digitalcollections.lib.washington.edu/digital/collection/loc/id/2034. See also the photo of the object-rich interior of the Shakes VI home in 1909 at Aaron Glass, “Bard Graduate Gallery: 37. Interior of the Chief Shake House, Wrangell, Alaska, https://www.bgc.bard.edu/objects-gallery-chief-shakes-house
[10] Chip Colwell, Plundered Skulls and Stolen Spirits: Inside the Fight to Reclaim Native America’s Culture (Chicago: The University of Chicago Press, 2017), 151-152, does a good job establishing the atmosphere in which cultural material heritage moved out of the Tlingit sphere. As if to emphasize the poverty and desperation of the Tlingit at this time, Shakes VI maintained his home as a virtual gallery, charging admission and offering pieces for sale. Glass.
[11] For Rocky Jensen, see Senator Daniel Akaka’s remarks at “Tribute to Native Hawaiian Master Artist Rocky Ka’ioliokahihikolo’Ehu Jensen,” in Congressional Record (Vol. 146, Pt. 4 [2000]), https://www.govinfo.gov/content/pkg/CRECB-2000-pt4/html/CRECB-2000-pt4-Pg5013-2.htm;
Lucia Tarallo Jensen, “Carving Pathways to the Future: The Rocky Jensen Family Bonds in a Love of Art and Their Hawaiian Legacy,” Ke Ola – The Life: Hawaìi Island’s Community Magazine (June-July 2009), https://keolamagazine.com/art/carving-pathways-future/; Jolene Oshiro, “Activist’s Art Spiritually Authentic,” (Honolulu) Starbulletin,com (Sep. 17, 2004), http://archives.starbulletin.com/2004/09/17/features/index6.html
Of interest, also, is Wanda Ke’ala ‘Anae-Onishi, “Re-Presenting ‘The Kona Style’: Examining the Multiple Identities of Kū,” M.A. thesis (Art), University of Hawaii (2004), https://scholarspace.manoa.hawaii.edu/handle/10125/12080
[12] Nathaniel B. Emerson, “Unwritten History of Hawaii: The Sacred Songs of the Hula,” Smithsonian Institution, Burau of American Ethnology, Bulletin 38 (Washington, D.C.: 1909), 11-12
[13] For a brief introduction of missionaries’ role in hula banning, see “Missionaries and the Decline of Hula,” HawaiiHistory.org (2020), http://www.hawaiihistory.org/index.cfm?fuseaction=ig.page&CategoryID=253
[14] Noenoe K.Silva, “He Kānāwai E Ho’opau I Na Hula Kuolo Hawai’i: The Political Economy of Banning the Hula,” The Hawaiian Journal of History, 34 (2000), 29-48, provides insight into hula banning. Missionary Emerson’s activity is noted at 40, 48 n32.