Legal Briefs

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.

Legal Briefs: NAGPRA and the “Self-Evidentiary” Standard

Facts, as many wise folks have pointed out, are stubborn things.[1]   Words are like that, too.  Whether used to clarify or obfuscate, words are often all we have.  We rely on them, and when they tell us nothing or next-to-nothing they may sow confusion.  I had cause to ruminate on that point recently while writing an essay on the Native American Graves Protection and Repatriation Act (NAGPRA), which became U.S. law back in 1990, and has reverberated throughout the tribal art world ever since. 

LEGAL BRIEFS - A Little Bit of Provenance Goes a Long Way

by Ron McCoy

The last time I visited southern Mexico’s state of Yucatán and its spectacular, ancient Maya ruins, Don McLean was singing about “the day the music died” on the radio, while in the cantinas of Mérida, the colonial-era capital, folks laughed at plans to create a tourist destination at a coastal backwater off to the east called Cancún.  Meanwhile, what drew me to the place was the extensive, widespread evidence of the ancient Maya civilization, which attained its Classical florescence around AD 250-900 and collapsed about a thousand years ago.

Pyramid at Tulum via Wikimedia Commons

Traces of the Maya, both large and small, extravagant and subtle, were everywhere:  abandoned city complexes with attendant temple pyramids; buildings boasting massive stucco facades displaying supernaturals’ baroque visages; palace walls decorated with brightly-painted murals promoting the established order; monumental carved stelae; outdoor ball-courts which served as theaters for human sacrifice; jade and shell jewelry, obsidian and flint scepters, and a host of other artifacts.

For me, the Maya country became one of those places I wanted to see more than once, if possible.  But the usual – life – took over, so it was only recently I made plans to return to Yucatán.  But it had been forty-six years since my visit and some catching-up was in order if I hoped to really appreciate what I would see.  As I dove into piles of recent literature about the Mayas, I realized this self-help immersion project was both a good and not so good idea.

On the plus side, during the time that passed between my initial visit to Yucatán and the present, scholars have conducted a vast amount of work on the ancient Maya and their material culture.  Over the years, intrepid archaeologists seeking knowledge and determined chicleros scouring the boondocks for gum-producing sapodilla trees peeled away vast swaths of the all-but-impenetrable Mesoamerican forests and jungles, revealing many hitherto “lost” sites.  Clever, exquisitely patient epigraphers pursued their investigatory search for the meanings of the calculiform glyphs Mayas carved into their architecture and painted on the bark paper of their screen-fold books; as a result, something like three-quarters of those symbols can be read.

Not surprisingly, some crucial “truths” about the Mayas widely embraced back in the early 1970s have joined the roster of some of humanity’s quainter, more curious beliefs and conceits.  For example, the notion of ancient Mayas living within an almost pacific culture composed largely of bucolic milpa tenders and blissed-out astronomer-priests (I’ve only slightly exaggerated the picture) has been supplanted by profoundly different interpretations.  In terms of art, research has focused on methods of production, style, materials, and most intensely on the dizzyingly diverse tableaux carved on Maya monuments or painted on Maya walls and pottery.  The iconography is stunningly complex, its meanings still poorly understood.  On the other hand, some propositions are simply ridiculous; “ancient astronauts” spring immediately to mind.  Others, like Mel Gibson’s film Apocalypto (2006), telescope history in such a way as to produce just the sort of simplified overstatement and comforting presentism that quickly finds a secure niche in popular culture.

A fair amount of territory separates these extremes: those blissed-out astronomer-priests occupying one end of the continuum, and, just across the way, fantastical space invaders, Noble Savages, and a well-nigh crazed culture in thrall to psychotics and sociopaths.  Somewhere between those poles can be found that enormous spectrum composed of what we call “reality.”  Over the years, we have learned so much more about that reality than many ever believed possible.  In other words, ancient Maya culture and its expressions were far more complex and nuanced than we can ever know.

As I said earlier, my Maya research assignment proved both a good and a not so good idea.  Basic common sense alone would surely put a checkmark in the “good” column.  After all, is it not (generally speaking) better to know more than less?  And is it not also true that the more you learn – really learn – the better positioned you are to realize how little you actually know?  Will not the acquisition of new knowledge spur a desire to acquire additional knowledge?  Well, that’s the theory.  So, I report back: On the not-so-good front, the sheer volume and tonnage of truly solid, provocatively interesting material reflecting scholarly research in the field proved, like the Mesoamerican selva, almost impossibly daunting. (It’s also informative, fascinating, and inspiring.) 

Long ago, an old school thespian told me that when Shakespeare wrote Hamlet the bard gave his character Polonius the best lines.  Of these, “to thine own self be true” may be the most memorable.  In that spirit, I knew I wasn’t going to attain anything beyond basic illiteracy when it came to the Mayas’ ingenious glyphs; nor would I approach Copernican heights in comprehending their complex mathematical and astronomical practices.  Having spent much of my professional life immersed in the drawings and paintings of Plains Indian warrior art, I settled on what seemed a reasonable approach: getting a handle on “reading” the culture’s graphic presentation of itself to better appreciate its underpinnings.

Now, of course I know ancient Maya art is, as a body of work, much sought after by collectors both public and private.  The high status afforded truly extraordinary pieces in public exhibitions is matched by the price similar objects command in the private realm.  It is clear that in at least one crucial respect Maya art is exactly like that of every other culture whose material legacy attracts the interest in the tribal art world’s universe of custodians and curators, buyers and sellers.  And that, after a couple of turns around Robin Hood’s proverbial barn, brings us to the subject at hand: the provenance situation. 

In the art world, “provenance” and “provenience” are sometimes used interchangeably.  The words look and sound similar, but they are fundamentally different and by no means synonymous.

Archaeologists (and others) use “provenience” when discussing the “three-dimensional context (including geographical location) of an archaeological find, giving information about its function and date.”[1]  “Provenance” refers to the history of the piece, basically where has it been and when?  So, not to put too fine a point on matters, provenience documents (through persuasive written, photographic or other evidence) where and when an object was found and contextualizes it; provenance tells us where the object has been over time.  Ideally, this means from the time it was created up to and including the present.  However, in the real world, most of us would probably be delighted and reassured knowing as much of its documentable history as can possibly be recreated.

Along these lines, this column recently reported on a notice of intent to repatriate a Sisseton Can Otina (Tree or Forest Dweller) figure under provisions of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA).  The State Historical Society of North Dakota stipulated it had something of a mystery object on its hands, summing up its provenance: “On an unknown date, an unknown number of cultural items were removed from an unknown site in an unknown location.”[2] 

I cite this example as an honest expression of the obvious: aside from being present and (more or less) accounted for (kind of), the Tree Dweller effigy has no history, as in “it just grew like Topsy.”  “When life gives you lemons,” a wise observer of the human scene noted long ago, “make lemonade.”[3]  Which is exactly what the historical society did: lacking any documentable history for the piece, the institution simply made that fact clear.    

Hopefully, I’m not belaboring the point by noting that questions about provenance can seem akin to those you’re asked at the doctor’s office, the ones about your pain with possible answers taking the form of a diagram: a smiley face at one end and a very sad one at the other, with a bunch of expressive mugs between.  Thumbs up, thumbs down, questioning looks, the picture often turns murky and one realizes the importance of seeking the good in the absence of the perfect.  In other words, some solid provenance is always better than none.    

Stela with Queen Ix Mutal Ahaw
photo by: Daderot [CC0], via Wikimedia Commons

Attenuated provenance is common in the field of tribal art in general, so let’s briefly look at an example from the Maya realm.  San Francisco’s renowned M. H. de Young Memorial Museum houses a stunning seven-and-a-half-foot tall, nearly four-feet wide carved limestone Maya stele depicting “the powerful queen Ix Mutal Ahaw…performing a ritual to contact the gods.”[4]  This spectacular, knock-your-socks-off piece contains glyphs referencing an AD 761 date and imagery of the lady in question festooned in a towering headdress, carrying important ritual paraphernalia, and contending with a writhing serpentine form from which emerges the face of a supernatural.  The museum tells us the stela comes from “Mexico or Guatemala.”[5]

This raises the question of where, exactly, this piece came from, who recovered it, and how did it make its way across the border into the United States?   For the viewer, it is a great pleasure to know this stela exists as part of the canon of world art.  That uplifting feeling is ameliorated by the realization that this piece lacks meaningful context beyond the fact of its existence. This situation prevents us from attaining a better appreciation of the monument; it probably also strips away much of the monument’s meaning.

This gap in our knowledge, which undermines fullness of appreciation, might be expected to raise some warning flags.  After all, when “the expertise (connoisseurship) of the dealer and/or collector, rather than actual provenience (origin) or provenance (history), is the measure of authenticity, then truth is, like beauty in the eye of the beholder.”[6]  You don’t have to be a fortune teller or visionary to conclude following that path is a perilous business.

The artificial, culturally-dictated distinction between “tribal art” and other art continues its ongoing, overdue, and welcome erosion.  As more parochial perspectives filter off from the mainstream, the degree to which pieces formerly marginalized acquire status as objects of interest can be expected to increase.  This should be especially so when such objects arrive on the scene not just with great stories but documentable histories.  And it really makes no difference whether the objects in question came from gallery purchases, auction acquisitions, or were hoicked up Santa Fe’s Canyon Road in a dark green plastic garbage bag clutched by a twitchy runner.

Once you move beyond the realm of tchotchkes decorating a mantlepiece, some sort of documentation for objects in a collection is a good idea.  Otherwise, when the time comes that you are no longer involved in witnessing the denouement, others, lacking essential information about the object, may regard your treasures as, well, tchotchkes or, moving slightly upscale, tools of liquidity.

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

Click for Endnotes

[1] “Introduction to Archaeology: Glossary,” Archaeological Institute of America (2018), https://www.archaeological.org/education/glossary#p

[2] “Notice of Intent to Repatriate Cultural Items: State Historical Society of North Dakota,” Federal Register (June 14, 2017), https://www.federalregister.gov/documents/2017/06/14/2017-12297/notice-of-intent-to-repatriate-cultural-items-state-historical-society-of-north-dakota-bismarck-nd

[3] That was not, as is often thought, businessman’s muse Dale Carnegie but Elbert Hubbard (1856-1915), author of the Spanish-American War period essay “A Message to Garcia” (1899) and founder of the Arts and Craft movement’s Roycroft artisan community in eastern New York.  Hubbard and his wife Alice evidently stayed true to this advice: they died, together, aboard the RMS Lusitania when a Geman U-boat torpedoed the British liner off the Irish coast in 1917. “Elbert Hubbard Papers, Manuscript Group 17,” Special Collections and University Archives, Indiana University of Pennsylvania (Nov. 5, 2014), 3-4, http://libs0500.library.iup.edu/depts/speccol/All%20Finding%20Aids/Finding%20aids/MG%20or%20Col/MG17Hubbard.pdf

[4] “Inside Our Collections: Rebirth and Renewal,” de Young Museum (July 25, 2018), https://deyoung.famsf.org/inside-our-collections-rebirth-renewal.

[5] Ibid.  For an intriguing account of the stela’s acquisition, see Kathleen Berrin, “Fine Arts Museums of San Francisco Acquire Maya Stela: Collaboration with Guatemala and Mexico Sets New Standards for Museums,” PARI [Precolumbian Art Research Institute] Online Publications: Newletter #28 (June 1999), http://www.mesoweb.com/pari/publications/news_archive/28/fine_arts_stela.html

[6] Nancy L. Kelker and Karen O. Bruhns, Faking Ancient Mesoamerica (London: Routledge, 2016), n.p. (Kindle electronic edition).

Summer 2018 ATADA Newsletter - Available Now!

Cover Image: Hopi Salako Mana c.1900-1915 Height: 14 ¾ in. (37.5 cm) Courtesy Galerie Flak, Paris – © Photo : D. Voirin

Cover Image:
Hopi Salako Mana
c.1900-1915
Height: 14 ¾ in. (37.5 cm)
Courtesy Galerie Flak, Paris – © Photo : D. Voirin

What's new with the News?
We have developed a new format for the online version of the newsletter. We believe the new version is easier to read online as it auto-formats to any device.
Of course, there is still a .PDF download of the issue for off-line reading. 

The Newsletter will now be published twice per year, with both a Summer and Winter edition. Throughout the year we will be publishing additional articles, reports and analysis of current events on the ATADA Blog and social media. Be sure to subscribe to our blog and follow us on Facebook, Twitter and Instagram

In This Issue...

Native Art Week
A conversation with Santa Fe Indian Market Director, Ira Wilson

The ATADA 2018 Online Show
Learn more about this inaugural show featuring fine Native American & Tribal art from trusted ATADA Dealers 

Europe in Spring: 
Patrick Mestdagh takes us on a tour of recent European Tribal art fairs

Legal Briefs: 
NAGPRA Repatriation Updates from Ron McCoy.

Legal Committee Report: 
STOP Act, Money Laundering, Tariffs and more...

No Free Appraisals
More in the importance of ethics and appraisals by Vanessa Elmore

Legal Briefs - Two Brief Observations & NAGPRA Updates

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

by Ron McCoy


This column often reports developments involving questions about the rightful possession of cultural material.  Dealer, collector, curator, or merely curious; no matter where or when the material you’re in interested comes from, this is a knotty topic.  Whether rooted in the Native American Graves Protection and Repatriation Act (NAGPRA) Congress passed in 1990, 1970 UNESCO Convention, other treaties or legislation, various initiatives and endeavors, cultural heritage issues aren’t going away.  Not today, not next year, probably not ever.

So kudos to Robert Gallegos, Kate Fitz Gibon, and all of the folks involved in ATADA’s Voluntary Returns Program.[1]  They are making a good faith effort to get ahead of the cultural heritage/repatriation curve, in an environment fraught with pitfalls and uncertainties.

The final observation to be made before tackling NAGPRA updates concerns provenance, an object’s verifiable history.  If you visited the reinstallation of ancient Classical art at the Getty Villa in Pacific Palisades this spring, perhaps you noted not what you saw but what you didn’t see: the larger-than-life Getty Kouros kouros is a Greek term applied to one of about a dozen surviving similarly-themed free-standing, usually nude sculptures of young men – a sculpture so famous, so wedded to the institution itself that it is known, for better or worse, by that eponymous moniker.  But the piece’s provenance problems[2] are such that its identifying label, prior to the disappearance into the labyrinthian world of museum storage, read: “Greece (?) about 530 B.C. or modern forgery.”[3]

 “It was oddly refreshing to see a museum frankly acknowledge the difficulty even the most knowledgeable among us can face around a work of art,” Los Angeles Times art critic Christopher Knight observed.  Knight also noted, removing the kouros from public view “might be a reasonable decision, but it leaves the public in the dark.  Transparency is key.”[4]

Words to live by.  Which is why the provenance provided by the State Historical Society of North Dakota for the object mentioned in the third of the NAGPRA notices summarized below caught my attention: “On an unknown date, an unknown number of cultural items were removed from an unknown site in an unknown location.”

 There, in a nutshell, is a straightforward, this-is-what-we-know summary of the provenance of more works of art than most of us might care to contemplate. Just as it is unwise to ignore an object’s story, it is also unwise to make more of a piece’s history than the evidence warrants.  Establishing a piece’s provenance – even merely attempting to do so – is an act not only of self-education for tribal art dealers, collectors, curators, and researchers but an activity that honors the heritage of objects by attempting to reconstruct their passage through time.  

With that, on to the business of trying to catch up on NAGPRA’s notices of intent to repatriate.  Appearing as needed in the Federal Register, these notices represent agreements tribal claimants and institutions broadly defined as “museums” reach regarding rightful possession of objects falling into certain categories.  These categories of interest here are sacred objects and objects of cultural patrimony.[5] A notice tells us the party or parties to whom the museum intends returning the object(s) absent the filing of a competing claim.  The dates given are those on which the notices appeared in the Federal Register, and quotes are drawn from those notices unless otherwise indicated.

 

Pueblo of Acoma Headgear, Ceremonial Pot, and Prayer Sticks:
Sacred Objects and Objects of Cultural Patrimony

Denver Museum of Nature and Science, Denver, CO (Aug. 28, 2017): Between 1954-1964, collectors obtained ten objects from dealers in Santa Fe, Taos, and Denver that originally came from the Pueblo of Acoma: three “Katysina Uuwaa’ka’ [friends or masks], a ceremonial pot …used to keep ceremonial paint and to collect rain water to make ceremonial medicine for curing ceremonies,” two more vessels “used in kivas for ceremony,” and four prayer sticks, all later donated to the museum.[6]  Classified as sacred objects and objects of cultural patrimony, the pieces were slated for repatriation to the Pueblo Acoma in New Mexico.

 

Two Chippewa Wooden Pipe Stems:
Sacred Object

Cincinnati Art Museum, Cincinnati, OH (July 24, 2017): Sometime between the mid-1920s and mid-1930s two wooden pipe stems were taken from Wisconsin’s Lac du Falmbeau Chippewa Reservation.  One “carved into a spiral shape and trimmed with loom-woven beadwork” is decorated with strips of beaver fur; the other “is carved with spool and ovoid shapes that are decorated with brass tacks, linear abstract designs on one side.”  These pipes, “combined with a ceremonial Warrior Drum, comprise an ensemble of sacred objects that are needed by traditional Lac du Flambeau Chippewa religious leaders for the practice of Native American religions by their present-day adherents.”  The museum decided these sacred objects ought to be turned over to the Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation in Wisconsin. 

 

Sisseton Can Otina (Tree or Forest Dweller) Figure:
Object of Cultural Patrimony

State Historical Society of North Dakota, Bismarck, ND (June 14, 2017): Never accessioned or catalogued by the museum, an undescribed wooden figurine was “found in a box dating to the 1950s that was used for storage of items” at the museum.[7]  The “Can Otina [Tree or Forest Dweller] was identified by a Dakota spiritual leader as belonging to the Sisitunwan [Sisseton].”  The museum announced its intention to transfer this object of cultural patrimony to the Upper Sioux Community in Minnesota.

 

Yavapai-Apache Painted Hide:
Sacred Object and Object of Cultural Patrimony

Heard Museum, Phoenix, AZ (June 14, 2017): In 1907 the agent at Arizona’s Camp Verde bagged three deer on a hunt.[8]  Agency policeman Tonto Jack decorated one buckskin with a painting for the agent, “a pictographic story that contains a good deal of symbology, mythological figures, Indians, horses, cougars, snakes and, of course, a deer.”[9] Displayed for many years at a Phoenix library, the hide was donated to the museum in 2014.

Representatives from three Apache reservations declared the piece was “made for a specific use [unspecified] in a specific ceremony [also unspecified]” practiced today “as it has always been practiced.”[10]  The museum decided Tonto Jack’s painting is both a sacred object and object of cultural patrimony which belongs to the Yavapai-Apache Nation of the Camp Verde Indian Reservation.

 

Quinault Tamahnousing Figures:
Sacred Objects

Field Museum of Natural History, Chicago, IL (June 14, 2017):  In 1893 the museum received “a red painted wooden anthropomorphic figure with rattles around its neck” and “a cedar bark figure with attached rattles” collected the previous year on northwestern Washington’s Olympic Peninsula.[11]  The museum determined these are tamahnousing figures,[12] “spirit helpers….necessary today for the revitalization and present-day practice of Quinault traditional religion,”  and agreed to transfer them to the Quinault Tribe of the Quinault Reservation in Washington.

 

Reno-Sparks Indian Colony (Paiute, Shoshone and Washoe) Baskets:
Objects of Cultural Patrimony

Placer County Museums, Auburn, CA (May 3, 2017):  Between 1949-1986 the museum received nine items from donors in northeastern California’s Modoc and Placer counties: a burden basket, six water jars, parching tray, and winnowing tray.  The parching tray, winnowing basket, and four water jars came from the estate of a physician who “often received baskets [from local Indians] for medical services and…continued collecting through purchases and gifts.” The notice does not describe the evidence relied on for determining that the baskets are objects of cultural patrimony belonging to the Reno-Sparks Indian Colony in Nevada.

 

Comanche Peyote Fan:
Sacred Object

Worcester Museum of Natural History d.b.a. EcoTarium, Worcester, MA (May 3, 2017): Under circumstances unknown the museum acquired a peyote fan “made of eagle feathers, hide, and small beadwork.”  Consultation with the Comanche Nation revealed “the feathers were cut, or ‘narrowed’, in a manner that is similar to traditional Comanche treatment of feathers and distinct from the fuller treatments seen in most Kiowa fans.”  In addition, the “beadwork also follows traditional Comanche color schemes and patterns.”  The museum declared the fan a sacred object destined for repatriation to the Comanche Nation in Oklahoma.

 

Haudenosaunee (Iroquois) False Face and Cornhusk Masks:
Sacred Objects

Denver Museum of Nature & Science, Denver, CO (Mar. 13, 2017): Between 1972-1983 donors gave the museum six Haudenosaunee masks acquired between 1959 and 1968; four of the masks are associated with the confederacy’s Four False Society, two with its Corn Husk Mask Society, and all came from upstate New York’s Onondaga Reservation.  The sale, trade, collection, and display of such masks has long fueled cultural controversy.  That an unknown number of similar masks were made for sale or for museum could be seen as undercutting claims about all of the masks inherently sacred quality.  However, the long-established Haudenosanee official position on the matter reflects a fundamentally different, conflicting view.[13]  As sacred objects masks were slated for repatriation Onondaga Nation in New York.

 

Anishinaabe (Ojibwe/Chippewa) Midewiwin Materials:
Sacred Object

Denver Museum of Nature & Science, Denver, CO (Mar. 7, 2017):  This summary conflates three notices pertaining about related pieces in the collection of the same museum that appeared in three notices published on the same day in the Federal Register.  about objects associated with the Midewiwin (Mide) – or Grand Medicine Society religion – of the Anishinaabe[14] that appeared in the Federal Register on the same day. 

In 1975, researcher-writer Karen Daniels Petersen, [15] who spent many summers among the Anishinaabes, received a water drum broken into six pieces “for religious reasons” that was removed from “an unknown wooded location” some fifty years earlier.[16] (The notice describes the disassembled drum as “ceremonially significant today because of the etchings on the wood that contain a song or story.”)[17]  Petersen sold the drum to collectors who gave it to the museum in 1976, which agreed to give the drum to the Grand Portage Band of the Minnesota Chippewa Tribe in Minnesota.   (For Petersen and other Mide pieces, see below and the summary of the Jan. 12, 2017 notice.) 

The same year Petersen obtained the drum she also purchased six objects associated with the Midewiwin religion – baton, medicine bag, rattle, post, and two bird carvings – and sold the array to collectors who donated it to the museum.  “Bird figures and their posts are used to mark Mide lodges and to signify a family or society affiliation,” the notice explains. “Similarly, rattles, medicine bags, and batons have an integral role in Midewiwin’s current ceremonial practices.”  The museum felt these objects belong with the White Earth Band of the Minnesota Chippewa Tribe in Minnesota.

In 1983 the museum was given “a dream symbol…a sacred object related to dreams that could be used in the Grand Medicine Society or Midewiwin.” The donors purchased the piece five years earlier from a dealer, who obtained it from the collector who received it from a resident of the Bois Forte Indian Reservation in Minnesota.   The museum agreed this was a sacred object which belongs to the Bois Forte Band (Nett Lake) of the Minnesota Chippewa Tribe

 

Meskwaki (Sac & Fox) Grizzly Bear Claw Necklace:
Object of Cultural Patrimony

American Museum of Natural History, New York, NY (Feb. 24, 2017): In 1901, William Jones,[18] a part-Fox anthropologist trained by the renowned Franz Boas, collected a necklace from an unidentified person in east-central Iowa that consists of twenty-seven grizzly bear claws separated by trios of blue glass beads with an otter pelt hanging at the back.  The museum agreed the necklace “has ongoing historical, traditional, and cultural importance” to the Meskwaki and should be placed with the Sac & Fox Tribe of the Mississippi in Iowa.

 

Anishinaabe (Chippewa) Midewiwwin (Grand Medicine Society) Items:
Sacred Objects and/or Unassociated Funerary Objects

Denver Museum of Nature & Science, Denver, CO (Jan. 12, 2017): In either 1962 or 1963  John Mink,[19] an Anishinaabe fourth-degree Midewiwin priest on central Minnesota’s Mille Lacs Indian Reservation, died.  His compatriots, following custom, buried objects with Mink reflective of his involvement in the Mide religion, including two birchbark scrolls, a pair of “invitation sets,” two medicine bags, and a “vessel containing ceremonial stain.”  By 1964, these items had made their way from John Mink’s grave into the possession of Karen Daniels Petersen.  (See the March 7, 2017 notices conflated above.)

Sometime between 1950 and 1964, Petersen bought a ceremonial post, twenty shells, and a ceremonial drumstick from Ole Sam, an Anishinaabe, who obtained them in 1960 upon the death of his Mide priest father Mike Sam.  In addition, in 1961 Petersen acquired a birchbark scroll from Annie Sam, “a rare fourth-degree Medewiwin female priest,” and a medicine bag from Maggie Skinaway.  In 1976, Petersen sold everything but the scroll to collectors who donated them to the museum soon after Petersen gifted it the scroll.

The material taken from John Mink’s grave qualified as unassociated funerary objects under NAGPRA; the remaining items were deemed sacred objects; all were earmarked for transfer to the Mille Lacs Band of the Minnesota Chippewa Tribe.

 

Click for Endnotes

[1] “Artifacts Being Returned to Native Americans by Art Dealers,” Ruidoso NM] News (Mar. 15, 2018), https://www.ruidosonews.com/story/news/local/community/2018/03/15/artifacts-being-returned-native-americans-art-dealers/430311002/.  For details see “Voluntary Returns Program,” Antique Tribal Art Dealers Association (2016), https://www.atada.org/voluntary-returns/.

[2] “Papers regarding its history of ownership have long been known to have been faked, so where it came from its unknown,” art critic Christopher Knight points out.  He also notes the kouros’ “pastiche of myriad stylistic details, which bring together features recognized from different artistic centers at different times in a work unlike any other known to exist.”  Not surprisingly, to more than a few well-informed, discerning observers the piece “just doesn’t look right.”  Christopher Knight, “Something’s Missing from the Newly Reinstalled Antiquities Collection at the Getty Villa,” Los Angeles Times (April 19, 2018), http://www.latimes.com/entertainment/arts/la-et-cm-getty-villa-reinstalled-20180419-htmlstory.html.  The piece figures prominently in Jason Felch and Ralph Frammalino, Chasing Aphrodite: The Hunt for Looted Antiquities at the World’s Richest Museum (Boston: Houghton Mifflin Harcourt, 2011).

[3] At least as late as 1993 “the Getty still identifies [the kuoros] as dating from circa 530 BC” for purposes of an exhibit dealing with the piece’s authenticity.  Christopher Knight, “Art Review: The Jury’s Still Out on Getty Kouros: Statue Is Either a Greek Artifact – or a Classic Fake,” Los Angeles Times (Jan. 23, 1993), http://articles.latimes.com/1993-01-23/entertainment/ca-1472_1_getty-kouros

[4] Knight, “Something’s Missing.”

[5] The other NAGPRA categories are: human remains and associated or unassociated funerary objects.

[6] The materials came from Byron Harvey III, William S. Dutton of the La Posada Gift Shop (Santa Fe), the Taos Book Shop (Taos), Ehrich Kohlberg of Kohlberg’s Antiques and Indian Arts (Denver), and Julius Gans of Southwest Arts and Crafts (Santa Fe).

[7] See James H. Howard, “The Tree Dweller Cults f the Dakota,” The Journal of American Folklore, Vol. 68, No. 268 (April-June 1955), 169-174.  For what may be a related Yankton carving at the Detroit Institute of Arts see “Tree Dweller Effigy, ca. 1850,” https://www.dia.org/art/collection/object/tree-dweller-effigy-65635

[8] Steve Ayers, “A 105-Year-Old Hunting Tale: How a Tenderfoot Earned Some Respect,” [Camp Verde, AZ] Bugle (Oct. 30, 2012), recounts some of the hide’s history and includes a photograph of the piece at

https://www.cvbugle.com/photos/2012/oct/30/13744/.

[10] According to the notice: “The last part of the ceremony for which this item was made, following the death of the individual for whom it was made, involves placing the hide in a secure location away from human habitation. Failing to put this hide away properly after its more active use or removing this item from its resting place, thus interrupting the unfolding ritual, poses great danger to those who come in contact with it.  Putting the item away properly can only be accomplished by individuals who have been specifically trained to perform this task, and is the only way to restore physical possession of the item to the Creator and to begin completion of the ceremony. The Creator is the only One who has the right to possess this type of cultural item after its use by humans. The traditional cultural authorities who have been consulted have determined that this [hide]…must now be properly put away.”

[11] The figures were collected by Reverend Myron Eells, a student of Coast Salish culture.  See “Online Books by Myron Eells,” The Online Books Page (University of Pennsylvania, n.d.), http://onlinebooks.library.upenn.edu/webbin/book/lookupname?key=Eells%2C%20Myron%2C%201843-1907.  Eells acquired the pieces for display for display in the state’s exhibit at the World’s Columbian Exposition in Chicago. 

[12] The term tamahnousing “is derived from the old Chinook language…. [and in general] means anything supernatural either among good or bad spirits….[A] tamahnous man is one who, by his incantations, can influence the spirits – a medicine man; a tamahnous stick or stone, or painting, is one in which the spirits are believed to dwell, or which is sometimes used in performing their incantations.” Myron Eells, The Indians of Puget Sound: The Notebooks of Myron Eels, George Pierre Castile, ed. (Seattle and Walla Walla: University of Washington Press and Whitman College, 1985), 361.

[13] “Haudenosaunee Confederacy Announces Policy on False Face Masks,” Akwesasne Notes, Vol. 1 (Spring 1995), on “Native American Technology and Arts” (n.d.),  http://www.nativetech.org/cornhusk/maskpoli.html

[14] For an early ethnographic treatment of the religion, see W[alter]. J. Hoffman, “The Midēʹwiwin or ‘Grand Medicine Society’ of the Ojibwa,” in Seventh Annual Report of the Bureau of Ethnology to the Secretary of the Smithsonian Institution, 1885-1886 (Washington, D.C., 1891), 143-300, also available via http://www.gutenberg.org/ebooks/19368

[15] Karen Daniels Petersen (1910-2007) is probably best known in the tribal art community as the author of books dealing with Plains Indian ledger art, although she also published on the Anishinaabe.  According to the notice: “In the 1950s, Karen Petersen and her husband Sydney Petersen spent their summers visiting Anishinaabe communities, camping out and buying crafts from tribal members. When she was able to sell items, she sold them through churches in St. Paul, MN. She also collected Anishinaabe objects for the Science Museum of Minnesota as a staff member from 1958 to 1964.”

[16] One does not need to engage in wild conjecture to assume, given the brief description of the circumstances under which the drum was retrieved, that it may well have come from a burial site.

[17] For Midewiwin iconography, its import and significance, see Selwyn Dewdney, The Sacred Scrolls of the Southern Ojibway (Toronto: University of Toronto Press, 1975),

[18] William Jones (1871-1909) was a complex, utterly fascinating figure in the development of anthropology as a field of study.  Born in Oklahoma to a white father and Fox mother, Jones graduated from Harvard and went on to become the first Native American to earn a doctorate in anthropology (under Franz Boas at Columbia University).  Jones was at the crest of his career wave when some the Ilongots among whom he was doing fieldwork killed him.  See Henry Milner Rideout, William Jones: Indian, Cowboy, American Scholar, and Anthropologist in the Field (New York: Fredrick A. Stokes, 1911); Kiara M. Vigil, “The Death of William Jones: Indian, Anthropologist, Murder Victim,” in Ned Blackhawk and Isaiah Lorado Wilner, Indigenous Visions: Rediscovering the World of Franz Boaz (New Haven: Yale Unviersity Press, 2018), 209-230.

[19] John Mink was a traditional healer.  Brett Larson, “Chiminising Elder Shaped by Cultural Ways,” (May 18, 2005), Mille Lacs Band of Objibwe, http://millelacsband-nsn.gov/district_news/chiminising-elder-shaped-cultural-ways/.  For a photograph of John Mink, circa 1930, see “Rabbit robe from Mille Lacs Trading Post held by John Mink, Chief Me-gee-see, and Dick Gahbowh” from the Minnesota Historical Society Collections at http://ojibwe.lib.umn.edu/collection/rabbit-robe-from-mille-lacs-trading-post-held-by-john-mink-chief-me-gee-see-and-dick-gahbowh-e078efa4-ce12-4958-af72-b7098fb4e82a