Legal Briefs - June 2021

NAGPRA Repatriations through September 8, 2020;
Law’s Opaque Reporting Leads to Masking Objects’ Identities

by Ron McCoy

Interior of Chief Shakes House, via Wikimedia Commons

 In 1990, Americans debated how best to observe (or ignore) the upcoming Columbian quincentenary. Pressed hard, Congress sought some way to signal a desire to make some amends for past practices and ongoing injustices meted out to the nation’s indigenous peoples.Its response took the form of the Native American Graves Protection and Repatriation Act (NAGPRA), which lays out a blueprint for attempting to not only revisit but essentially redo the past.

The law seeks to accomplish this by establishing a process for repatriating certain types of “cultural items”[1] of Native American or Native Hawaiian origin from institutions that meet its broad definition of “museum.”[2]The rationale underlying this practice rests on the proposition that the very nature of certain objects renders them inherently involved in, forever connected to, and fundamentally inalienable from the tribal milieu. If the museum and claimant(s) — specific tribal entities or identified individuals — agree on the legitimacy of the claim, the piece will be repatriated.

In order to qualify as a cultural item under NAGPRA, a piece must fulfill the requirements for inclusion in one or more of its five categories: human remains, associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony. Given this column’s anticipated readership — people who curate, collect, and deal in authentic tribal art — pieces that find their way into a pair of NAGPRA categories regularly receive attention: sacred objects[3] and objects of cultural patrimony.[4]

NAGPRA news appearing here is typically related to repatriations of materials the museums possessing them and those laying claim to them have agreed should be transferred back into the tribal sphere from which they came. That information is drawn largely from the Federal Register, sometimes augmented by additional sources. The Federal Register may not find a place on most of our reading lists, but it remains the forum of record for publishing announcements about the repatriation agreements museums and claimants arrive at through NAGPRA.

NAGPRA repatriation notices published in the Federal Register follow a standard template. That blueprint is designed to: inform readers about the identities of the institution and claimant(s) involved in the repatriation bid; provide information about a piece, its description, function, and provenance that support the case for its inherent inalienability from — and therefore the need for its repatriation to — the tribal world; and, finally, identify the person(s) or entity to which the object will be repatriated pending the filing of a competing claim. (There is no requirement under NAGPRA for any of the parties involved in the process to account for an object’s actual final disposition. A dozen tribal entities are listed in the first notice summarized below, for example, but how such a repatriation would be carried out is not this law’s concern.)

Ideally, one should be able to read a NAGPRA repatriation notice in the Federal Register and learn quite a bit about a given piece’s appearance, provenance, and role.

Each element in a NAGPRA notice is important, but a point of particular concern and interest is that part in which the object to be repatriated is described. That is because for this column’s intended audience, knowledge about a piece’s construction, appearance, and provenance is of vital importance if they are to understand how the letter and spirit of the law are reflected through its application.

This current harvest of NAGPRA notices of intent to repatriate sacred objects and objects of cultural patrimony brings us up to date on those appearing in the Federal Register through September 8, 2020. (Unless otherwise indicated, quotations used in reporting notices comes from those notices.)

Diegueño/Kumeyaay Basketry Feathered Shaman’s Hat
Sacred Object

Museum of Riverside, Riverside, CA (Sept. 8, 2020): The item covered by this repatriation notice, otherwise undescribed, is a “basketry feathered shaman’s hat” dated to circa 1900, a “sacred item [which] was removed from the traditional land of the Diegueño/Kumeyaay in San Diego County, CA.”No additional information supports that conclusion, and the piece’s provenance evidently consists of a 1952 letter documenting its donation to the institution.

The museum agreed to transfer the hat to a group of culturally related California entities referred to collectively as “The Tribes” for purposes of the notice: 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; 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.

Painted Drum (Cochiti Pueblo)
Sacred Object/ Cultural Patrimony

Harry Ransom Center, University of Texas at Austin, Austin, TX (July 30, 2020): This notice focuses on a painted wooden drum acquired by California attorney Erle Stanley Gardner (1889-1970), who achieved fame as the prolific creator-chronicler of fictional courtroom lion Perry Mason. We know nothing about this drum, other than that fact of its donation to the museum as part of Gardner’s estate and the piece’s general appearance: “a wooden drum with rawhide ends and lacing, and painted in ochre, dark brown, and white colors.”

According to the notice, “research and consultation with representatives from the Pueblo of Cochiti, New Mexico, found that Cochiti is known by all Pueblos for creating ceremonial drums of this style for tribal use in the practice of traditional native religion.” (Cochiti is also known for producing drums for the marketplace.) “Accordingly, this drum…clearly is a sacred object originating from Cochiti Pueblo,” to which the museum agreed the drum should be repatriated.

By combining this notice with an interesting firsthand account of the process written by Ester Harrison, a member of the museum’s staff, it is possible to glean some insight into how this decision was made.[5]

Basically, after the museum figured out the drum was likely of Native American origin, probably from the Southwest, the instrument was included in a 2019 summary of possible NAGPRA-affected objects in its collections. About a year later, Harrison writes, “we were delighted to hear from the Cochiti Pueblo in New Mexico who positively identified one of the drums in the inventory as being Cochiti and an object of cultural patrimony.”[6] After that, “[w]orking closely with the Cochiti Pueblo contact primarily by telephone, we supported each other through the required next steps, sometimes sharing each other’s views and experiences and embarking on a meaningful new professional relationship in the process.”[7]

Killer Whale Shirt (Tlingit)
Sacred Object/ Cultural Patrimony

Minnesota Museum of American Art, St. Paul, MN (June 10, 2020): In 1926, Presbyterian minister and teacher Axel Rasmussen (1886-1945) commenced a decade-long tenure as superintendent of schools in Wrangell, Alaska, subsequently taking up a similar posting in Skagway.[8] Over the years, Rasmussen, a keen student of Tlingit and other regional cultures, put together a substantial collection of pieces from the area’s indigenous peoples. Among his acquisitions is the piece to which this notice refers: a killer whale shirt, which the Minnesota Museum of American Art bought from the Portland Art Museum in 1957.

This shirt is associated with the Naanya.aayí clan, which serves as its collective custodian. Tribal representatives “described how the clan came to own the name and crest killer whale Sheiyksh, and demonstrated the traditional uncle-to-nephew hereditary transfer of the item going back to the first Chief Shakes.” (A photograph taken in the early 1940s shows Chief Shakes VII, also known as Charlie Jones, wearing this shirt.)[9]

The writer(s) of this notice took pains to emphasize the nature of the bonds linking the Naanya.aayí clan to this shirt. “The killer whale shirt bonds the Tlingit people to their ancestors,” the author tells us, “symbolizing the people’s relationship to the being depicted on it.” The prominent inclusion of the clan crest in the garment’s overall design “provides a physical form in which spiritual beings manifest their presence.”

The notice finds this shirt is “needed for current and ongoing cultural and religious practices,” and, further, that “under the Tlingit system of communal property ownership, it could not be alienated, appropriated, or conveyed by any individual.”

Accordingly, the museum agreed to return the killer whale shirt to the Central Council of the Tlingit & Haida Indian Tribes, acting for itself and on behalf of the Wrangell Cooperative Association (specifically the Naanya.aayí clan).

5,816 Objects (Winnebago)
Cultural Patrimony

John Michael Kohler Arts Center, Sheboygan, WI (June 10, 2020): Watchmaker and amateur archaeologist Rudolph Kuehne (1855-1929)[10] amassed a large trove of objects during some thirty-five years of digging and scraping in and around Sheboygan, Wisconsin. The collection he built contains nearly six thousand objects, including: stone points, scrapers, hand axes, hammerstones, gorgets, beads, and gaming pieces; copper points, blades, awls, amulets, beads, and rings; antler awls; also clay vessels, plant specimens, and seven beaded sashes or belts.[11]

After Kuehne’s death, the museum’s parent entity acquired this material from his widow.

The museum agreed these cultural items qualified as objects of cultural patrimony under NAGPRA and should be transferred to the Winnebago Tribe of Nebraska, whose ancestors resided in the Sheboygan area.

Eleven Objects “Erroneously Identified…as Masks” (Navajo)
Sacred Objects

Federal Bureau of Investigation, Art Theft Program, Washington, D.C. (June 10, 2020): At a time unknown, “11 sacred objects were acquired in the Southwest and transported to the East Coast.” There, these eleven undescribed pieces became “part of a private collection of Native American antiquities, art and cultural heritage.” In the spring of 2018, the FBI, acting in connection with a criminal investigation, seized those objects, which had been “erroneously identified by the collector as masks.” (For the moment, let us leave aside the question of what these pieces might be; after all, the notice tells us their identification as masks would be erroneous since they are obviously not masks.) The FBI determined these pieces are sacred objects that rightfully belong with the Navajo Nation of Arizona, New Mexico, and Utah.

If you are left a bit confused wondering what this notice is about, you are not alone.
In what appears to be a growing trend with NAGPRA notices, the author(s) of this entry opted for opacity by providing as little information as possible. Whether done intentionally or unconsciously, this renders the notice practically worthless for tribal art curators, collectors, and dealers in their attempts to discern the shifting parameters of the objects embraced by NAGPRA. The situation here is rendered patently absurd, because the eleven objects “erroneously identified by the collector as masks” are almost certainly eleven masks.

How did we arrive at the point where such a conclusion seems to be the only one that is even remotely reasonable?

We receive the message these objects are masks because the notice takes great pains to inform us they are not masks. The author(s) of the notice manage to attain this questionable goal by emphasizing that the objects were “erroneously identified by the collector as masks [italics added].” If these pieces are not masks, what are they? Baskets? Quillwork? Rattles? Pottery? It seems perfectly reasonable to conclude that what a collector “erroneously” identified as masks must have looked to her/him a lot like…masks.

“What’s in a name?” William Shakespeare’s Juliet asks her Romeo. After all, she asserts: “That which we call a rose/By any other name would smell as sweet.”[12] (It might be helpful to recall that, like the rest of Romeo and Juliet, the words the bard placed on Juliet’s lips form part of a tragedy.) Some three centuries later, modernist writer Gertrude Stein reminded readers: “a rose is a rose is a rose is a rose.”[13] But obscuring the identity of a mask by failing to even describe it properly — while simultaneously asserting someone “erroneously identified” it as a mask — constitutes an act of masking.

It seems likely this masking exercise was intended to address the sensibilities of people for whom describing certain objects as “masks” would be problematic. However worthwhile that goal may be, in this instance the act of bending to it eliminates the possibility of presenting meaningful information about the pieces. Even Shakespeare and Stein, when talking about roses, did not use esoteric code; instead, they used a specific, readily understood word — that word was “rose” — so readers would know what they were writing about. In that vein, here is a suggestion for NAGPRA notice writers: Instead of muddying the waters, why not consult a list of appropriate synonyms for “mask”? In the meantime, let me suggest one: “not-mask.”

NAGPRA, like any law, is credible only so long as it is understood. Obscuring the identity of objects slated for repatriation is a profoundly unhelpful act, one which falls well outside the goal of keeping us informed about how the law is enforced.

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] “Cultural items” under NAGPRA 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] For NAGPRA’s purposes, a “museum” refers to “[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. Specifically excluded: “the Smithsonian Institution or any other Federal agency,” which are covered by other legislation.

[3]For NAGPRA’s purposes, a “sacred object” is “needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day [sic] adherents.” Ibid.

[4] An object is deemed “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] Ester Harrison, “The Ransom Center and NAGPRA: A Team Effort in Research,” Ransom Center Magazine (2021), https://sites.utexas.edu/ransomcentermagazine/2021/02/18/the-ransom-center-and-nagpra-a-team-effort-in-research/

[6] Ibid.

[7] Ibid.

[8] Bill Mercer, “Native American Art at Portland Art Museum,” American Indian Art Magazine, Vol. 26, No. 2 (74-81), 76-79; “Beloit College Collections,” (n.d., accessed May 2, 2019). https://dcms.beloit.edu/digital/collection/logan/id/3274/

[9] The information accompanying the photograph labels the garment worn by Shakes VII the “Killer Whale Flotilla Robe.” “Chief Shakes VII,” Alaska’s Digital Archives (Alaska State Library – Historical Collections), https://vilda.alaska.edu/digital/collection/cdmg21/id/2418/

[10] “Emma Greiser Kuehne,“ Find a Grave (2021). https://www.findagrave.com/memorial/101993518/emma-kuehne

[11] At the time, The Wisconsin Archaeologist, NS, Vol. 9, No. 3 (April 1930) (The Wisconsin Archeological Society), 143, described Kuehne’s collection as “one of Wisconsin’s richest and most valuable private archeological collections.”

[12] Romeo and Juliet, Act II Scene II REDO “The Complete Works of Shakespeare,”

http://shakespeare.mit.edu/romeo_juliet/romeo_juliet.2.2.html

[13] In her 1913 poem “Sacred Emily” (1913), Stein wrote: “Rose is a rose is a rose is a rose.” Later, in Operas and Plays (1932), she recalibrated her remarks: “Do we suppose that all she knows is that a rose is a rose is a rose is a rose.” “Gertrude Stein,” EPC Digital Library (Electronic Poetry Center, 2011), http://writing.upenn.edu/library/Stein-Gertrude_Rose-is-a-rose.html

Legal Briefs - November 2020

NAGPRA (Increasingly Opaque) Repatriations through April 20, 2020

by Ron McCoy 

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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.

Legal Briefs - August 2020

If the Past is Another Country, What’s the Future?

by Ron McCoy

“The past is another country; they do things differently there.” 

L.P. Hartley, The Go-Between (1953)

Hoa Hakananaia’a at the British Museum

Photo by: James Miles / CC BY-SA

Hopefully, you are weathering the pandemic’s upheavals and dislocations as best and as well as you can.  Paso a paso, folks, step by step. 

At the moment, we appear to be in a state akin to a hiatus: perched in the narrowest of gaps betwixt and between; lodged in a liminal bubble sliding along a wobbly continuum that runs from the wreckage of a rapidly receding past crammed-up uncomfortably against an incomplete present; all the while searching for the makings of a bridge that will allow us to move into an uncertain future dominated by some great reset.  Cheerful stuff.

Not surprisingly, then, when it comes to the field of tribal art things have been almost preternaturally quiet of late.  Museum and gallery closings, widespread civil upheaval, and the fact that most people find their minds focused on other, more prosaic matters like survival…well, there is nothing quite like a pandemic to refocus one’s attention.  Although searching for signs of links between this pandemic and antique tribal art may seem a bit of a stretch, it has been during this time that musing on these subject’s relationship to one another took me back to 1967. 

That was the year many then-young seekers of transformational change listened avidly to a record called “For What It’s Worth (Stop, Hey What’s That Sound?).”  In what became an audible trope for the era, the eclectic folk-rock group Buffalo Springfield sang Stephen Stills’ haunting lyrics about the dislocating uncertainties of a disconcertingly unsettling time: “There’s something happening here/What it is ain’t exactly clear….”[1]

The next year, 1968, the genie came roaring out of the bottle.  Everything seemed adrift, loosened from moorings, far from in-control as the firestorm of events accelerated: war, protestors and police battling in the streets, cities alight, assassinations, all in a seemingly relentless cascade of near-apocalyptic horror during one of those may-you-live-in-interesting-times times.  Four years later, 1968’s goings on occupied the thoughts of China’s wily premier Zhou Enlai, who carved his way up to a point as close to the top of the Maoist hierarchy as you could get without being Mao.  Asked for comment on the long-term impact of a tumultuous revolutionary wave which reminded many of the beginnings of the French Revolution, Zhou wisely replied: “Too early to say.”[2]

If you consider the confusion voiced by Buffalo Springfield and mingle it with Zhou’s words of wisdom, there’s a lot right now that may not seem “exactly clear.”  Still, it’s just about ironclad-certain that there’s another side to all of this from which we shall, at some point, emerge.  (Needless to say, “all” includes that array of aficionados, curators, collectors, and dealers associated with the field of antique tribal art.)  It is certainly an equally secure wager to take the position that life on the other side is going to be a whole lot different from that to which we are accustomed. 

We often perceive the loci of our activities as firmly rooted in what amount to different worlds: “tribal art world,” “automobile manufacturing world,” “world of politics,” and so forth.  But this perception of separateness is an illusion, a mental accounting trick that allows us to compartmentalize our affairs.  But none of those world-constructs is inherently distinct; all are inextricably linked.  

With that thought in mind, we may sense that the impact already wrought upon the tribal art sphere by the pandemic and its resulting waves of after-effects remains uncertain, the details of its longer-term impact unknown.  Still, it is not too early to give some thought to the future if only to be better equipped for dealing with its new realities. 

“The past,” British novelist and short story writer L.P. Hartley observed, “is another country; they do things differently there.”  Similarly, the future — at least as much and perhaps even more than the past — will be another place; one where we shall, perforce, find ourselves doings things differently. 

As we prepare to venture into alien territory, it’s a safe bet  that the impact of what amounts to a pandemic earthquake (complete with its cascade of riffling aftershocks) cannot help but exert a profound impact upon those for whom antique tribal art is a passion.

The previous edition of this column — “Emmanuel Macron’s Bold Promise to Repatriate African Objects: ‘Hey, Wha’ Happen’?” — looked at the pledge  French president Emmanuel Macron made in 2017 to atone for the “grave mistake”[3] of European colonialism by repatriating objects of African material culture to the continent of its origin.  

Macron envisioned a five-year timeline for creating a mechanism to effect the repatriation from French public collections of an unspecified amount of African tribal art — currently, a legal impossibility — and, by implication, works emanating from other exploited cultures. Macron even pledged a $22.5 million loan to Benin so a suitable museum could be constructed at the UNESCO World Heritage site at Abomey.[4] 

Naturally, there was a report on the subject.  Macron received the Savoy-Sarr Report, named after its coauthors, in late 2018.[5]  This is bold stuff, its authors proclaiming they seek nothing less than “the emancipation of memory.”[6]  Much of the report is devoted to mind-numbing statements concerning impossibly convoluted constructs theoretical and special pleading.  Whatever else it may have accomplished, the Savoy-Sarr Report succeeded in transforming the Musée du Quai Branly-Jacques Chirac in Paris into ground zero for Macron’s experiment.  

One of the world’s foremost museums, the Quai Branly holds more than 300,000 pieces of ethnographic art from Africa, Asia, Oceania, and the Americas.[7]  The Savoy-Sarr Report took account of the roughly museum’s 70,000 pieces of sub-Saharan origin and honed-in on twenty-six objects, including “statues and thrones looted by French troops during a military raid against the once powerful West African Kingdom of Dahomey in 1892.”[8]

At the time that column was published, Macron’s initiative remained unrealized, stalled for any number of reasons.  Since then, the Quai Branly announced the appointment of Emmanuel Kasarhérou as its new president (director).  Kasarhérou, the New Caledonia-born son of a Melanesian father and French mother, completed museum studies in Paris, headed the Museum of New Caledonia in his homeland, and returned to the Quai Branly where he served as deputy head of collections.[9] 

“I feel as much the descendant of people who were colonizers of a certain place as of people who were colonized,”[10] Kasarhérou explained  in an interview with Farah Nayeri of The New York Times soon after his appointment to the Quai Branly directorship. 

He lost no time making some interesting observations about Macron’s pledge (indirectly) and the Savoy-Sarr Report (directly), including offering his opinion that the overall issue of cultural heritage and its repatriation is not something that can be “tackled with big block ideologies.”[11] 

In fact, Kasarhérou evidently holds some decidedly negative views of the Savoy-Sarr Report, which he describes as a “very militant” document, one which “cannot be a blueprint for policy.” (He did give its authors some kind of nod for “[s]haking things up.”)[12]  In addition, Kasarhérou committed himself to careful review of repatriation claims, declaring: “I’m not in favor of objects being sent out into the world and left to rot.”[13]

Emmanuel Kasarhérou certainly knows how tricky his outsider-insider/insider-outsider position may become when it comes to the crunch, the actual business of receiving and evaluating repatriation claims, engaging in often difficult dialogue between claimants and those possessing the relevant objects, and a gazillion other points of agreement, confusion, and contention.  “I know I will inevitably disappoint people,” he has ruefully noted, perhaps reflecting a somewhat optimistic form of stoicism.  “One always does.  The worst thing would be to do nothing.”[14]

This is not just about Macron, the Savoy-Sarr Report, or the Quai Branly.  As the pandemic raged and its associated dislocations scythe through our societies there are plenty of people and organizations playing a truncated game of catch-up.  In June, for example, the British Museum came under renewed pressure about its own massive collection of controversial works.  Hartwig Fischer, the institution’s director, put up a statement online declaring the museum “stands in solidarity with the British Black community, with the African American community, and with the Black community throughout the world.”[15]

For more than a few observers, the statement exhibited precisely the sort of cluelessness, condescension and desperation that may be capable of generating a few cheers but is absolutely guaranteed to invite a chorus of jeers.  After all, as the Artforum account of this affair pointed out in an interesting coda:

Among the countries currently seeking the return of cultural heritage objects from the museum are Greece, which has repeatedly tried to secure the restitution of the Elgin marbles pilfered from the Parthenon in Athens; Ethiopia, which has called for the restitution of tabots, Christian plaques representing the Ark of the Covenant; and Chile, which has demanded the return of Hoa Hakananai’a, a stone monolith taken from Easter Island.[16]

“Look, I love you guys, but maybe you ought to sit this one out” a Twitter warrior responded.  “Unless you plan to return the looted Ethiopian treasures, the stolen Elgin Marbles and permanently return the Benin Bronzes.”  Another was “appalled at the hypocrisy” of the institution, with one cutting to the chase by twittering, “Time to give back the swag, guys!”[17]

Ultimately, as the author of the Artforum account explained, “expressing the institution’s solidarity with the black and African American community” is “a move that has invited heated criticism from those who claim the words will ring  hollow until the museum reckons fully with the looted objects in its collection.”[18]

Although Emmanuel Macron’s dream remains unrealized, at least for the moment, it is not a forgotten remnant from a vanished past.  This is something anyone associated with tribal art needs to spend time considering, because there will be new initiatives, more reports, and in some cases action. 

We could do worse than preparing for the day we finally wash up on the shores of the future.  Because  we may find that shore crowded with folks who share reflections of Macron’s repatriation proposal; people for whom the dream of a great reckoning trending toward social justice remains not only undiminished but revitalized by a powerful sense of urgency. 

After all, the future is another country; they do things differently there.

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] “Stephen Stills Lyrics: For What It’s Worth,” AZLyrics (n.d.), https://www.azlyrics.com/lyrics/stephenstills/forwhatitsworth.html

[2] Although Zhou’s observation is commonly thought to involve his analysis of the French Revolution of 1789, he was speaking of revolutionary developments in France in 1968.  Richard McGregor, “Zhou’s Cryptic Caution Lost in Translation,” Financial Times (June 10, 2011).  See, too, “Delanceyplace.com 6/21/11 — Too Early To Say,” Delanceyplace.com (June 21, 2011), https://delanceyplace.com/view-archives.php?p=1711

[3] “Macron Calls Colonialism a ‘Grave Mistake’ During Visit to Ivory Coast,” France24 (Dec. 21, 2019), https://www.france24.com/en/20191222-frence-president-macron-on-official-visit-to-ivory -coast-calls-colonialism-a-grave-mistake

[4] Ibid.

[5] The Savoy-Sarr Report was authored by art historian Bénédicte Savoy, chair for Modern Art History/Art History as Cultural History at the Tecnische Universität Berlin,[5] and economist Felwine Sarr, director of the Civilizations,  Religions, Arts, and Communication research center at Gaston Berger University in Saint-Louis, Senegal.[5] 

[6] Savoy-Sarr Report, 1.

[7] “Missions: A Bridge Between Cultures,” (Musée du Quai Branly Jacques Chirac, n.d.), http://www.quaibranly.fr/en/missions-and-operations/the-musee-du-quai-branly/#:~:text=; Farah Nayeri, “Museums in France Should Return African Treasure, Report Says,” The New York Times (Nov. 21, 2018), https:/ /www.nytimes.com/2018/11/21/arts/design/france-museums-africa-savoy-sarr-report.html/.

[8] Heleluya Hadero, “Benin’s New Museum for Artifacts Looted by France Is Being Built Using  a French Loan,” QuartzAfrica (wJuly 23,2019), https://qz.com/africa/1672922/france-will-help-fund-benin-museum-housing-looted-artifacts/

[9] Farah Nayeri, “A New Museum Director’s First Challenge: Which Exhibits to Give Back,” The New York Times (June 5, 2020), https://www.nytimes.com/2020/06/05/arts/design/emmanuel-kasarherou-quai-branly-museum.html

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Catherine Hickley, “’Time to Give Back the Swag, Guys!’ British Museum Unleashes Twitter Storm With Statement on Black Lives Matter,” The Art Newspaper (June 9, 2020), https://www.theartnewspaper.com/news/british-museum-unleashes-twitter-storm-with-statement-on-black-lives-matter

[16] Ibid.

[17] Ibid.

[18] “After Solidarity Statement, British Museum Faces Renewed Demands To Give Up Loot,” Artforum (June 12, 2020), https://www.artforum.com/news/after-solidarity-statement-british-museum-faces-renewed-demands-to-give-up-loot-83215

Legal Briefs - March 2020

Emmanuel Macron’s Bold Promise to Repatriate African Objects:
“Hey!  Wha’ Happen’?”

Ron McCoy

In November 2017, France’s president Emmanuel Macron visited the Republic of Burkina Faso, a land which until 1960 was part of his nation’s vast West African colonial empire.[1] Speaking to an audience of attentive students at the national flagship University of Ouagadougou, he focused on the wildly unequal relationship between formerly colonizing European powers and Africa’s formerly colonized peoples.   

The colonial era was buoyed by not just by greed or religious fever but by its own self-affirming ideology.  This ideology condoned and even mandated the removal (through means both fair and foul) of almost inconceivable amounts of sub-Saharan African material culture, i.e. indigenous art forms, from their places of origination and subsequent speedy incorporation into the public and private European collections where they remain to this day.

Macron appears to be eager to put what he sees as the “grave mistake”[2] of European colonialism in the rearview mirror.  “I belong to a generation which was not that of colonization,” he has explained.[3]

“I cannot accept that a large part of cultural heritage from several African countries is in France,” President Macron told the students.  “African heritage can’t just be in European private collections and museums.”  What Macron then unveiled was a sweeping vison born of a confluence of interests and aspirations in which he posited that, yes, “African heritage must be highlighted in Paris, but also in Dakar [Senegal], in Lagos [Nigeria], in Cotonou [Benin].”

Macron represents a nation which, like some others in the West — Great Britain, Germany, Belgium, and Italy spring to mind — historically enjoys what might best be described as a tangled relationship with the peoples of the African continent, thanks to the lingering effects of the profoundly disruptive and disorienting colonial experience.  Although the colonial era may not register much with most Westerners, for Africans (and others) its effects are complex and immediate.  For many of them it remains, as Macron says, “a crime against humanity.”[4]

There is general agreement that colonialism, via what could perhaps best be understood as its second- and third-order effects, manifests itself in virtually all areas of former colonies’ human activity, including the political, economic, and cultural spheres. Colonialism’s legacies are also felt in the societies of the former colonial powers. Until not so long ago, one of the cultures involved in this dynamic perceived the material culture of the other as “primitive art,” exotica hoicked from far away and ensconced in some version of a wunderkammer; those objects signified something else altogether when viewed from the perspective of the pieces’ originating culture.  Those two competing perspectives, and the attitudes they nourish and reinforce, provide the makings for a toxic brew.

Speaking to the students in Burkina Faso, Macron laid out a schedule of sorts for carrying out the restitution of some of the African art in France to Africa.  “In the next five years, I want the conditions to be met for the temporary or permanent restitution of African heritage to Africa,”[5] he pledged.  If Macron’s timeline seemed a bit vague and dizzyingly ambitious, it was probably because what he envisioned was still only ethereally defined.  It was, after all, a more or less inchoate development at best.  Still, it does not require a lot of imagination to foresee emanations from the ideas to which Macron lent his voice being encountered not somewhere way down the road but, rather, soon; definitely a feature of the near-future.  Shortly after giving the speech, Macron reiterated his position in (what else?) a Tweet: “African heritage cannot be a prisoner of European museums.”[6]

Macron’s bold plan for the restitution of material culture on a grand scale is heady stuff.  For some, it represents the culmination of ages of frustration and the emergence of hope for cultural rejuvenation in a region which could doubtless profit from it.  Others see an impossible dream.  Whatever one’s view, any interest or enthusiasm Macron generated with his pledge was tempered by a fundamental question: How, exactly, could or would this revolutionary redistributive act be brought about? 

The amount of material taken out of Africa and deposited in non-African collections is staggering.  It has been estimated that “over 90% of the material culture legacy of sub-Saharan Africa remains preserved and housed outside of the African continent.”[7]  (A figure like that should raise some suspicions and command scrutiny, to be sure, but it remains useful for providing a sense of the scene.) 

Because it figures so prominently in our narrative as a kind of ground-zero for Macron’s plan, let’s take a brief look at the Musée du Quai Branly-Jacques Chirac in Paris.  Musée du Quai Branly ranks as one of the world’s foremost museums, a vast storehouse dedicated to preserving more than 300,000 pieces of ethnographic art from Africa, Asia, Oceania, and the Americas, including some 70,000 objects of sub-Saharan African origin alone.[8]  The museum draws on its cosmopolitan setting in aspiring to serve as a force for “creating bridges between cultures,” to the point of offering visitors a “permanent collection area [which] presents 3,500 works geographically without partitions.  The juxtaposition of these works encourages original dialog between the cultures of four continents.”[9] 

Macron’s grand plan and its five-year timeline for completion was revolutionary.  Just how much his proposal rocked some boats started to become clear around November 2018, a year after the Burkina Faso speech.  That’s when the French president received a report on the subject he commissioned eight months earlier.”[10]  The Savoy-Sarr Report was authored by art historian Bénédicte Savoy, chair for Modern Art History/Art History as Cultural History at the Tecnische Universität Berlin,[11] and economist Felwine Sarr, director of the Civilizations, Religions, Arts, and Communication research center at Gaston Berger University in Saint-Louis, Senegal.[12] 

The 2018 Savoy-Sarr Report focused on the delivery of what its authors call “the emancipation of memory.”[13] This is Big Picture stuff, a rather amorphous, global endeavor that can be at least partly attained by restoring to Africa material which was often obtained under decidedly nasty circumstances.  When they looked at what they viewed as “the crux of the problem,” Savoy and Sarr espied “a system of appropriation and alienation — the colonial system — for which certain European Museums, unwillingly have become the public archives.”[14]  (If you have anything at all to do with the museum world you may hear alarm bells ringing and notice some red-and-blue lights flashing just about now.)  According to coauthor Bénédicte Savoy, the ultimate goal does not involve “emptying French or European museums to fill up African ones.”[15]  Instead, she talked of “rebalancing” the currently “extremely imbalanced” situation in which “European museums have almost everything and African museums have almost nothing.”[16]

View fullsize

Man-Shark by Sossa Dede (c. 1890), a Fon statue symbolizing Béhanzin, musée du quai Branly, Paris, France. via Wikimedia Commons

Upon receiving the Savoy-Sarr Report, Macron let it be known the Musée du Quai Branly would repatriate twenty-six objects — including “statues and thrones looted by French troops during a military raid against the once powerful West African Kingdom of Dahomey in 1892”[17]  — and would do so “without delay.”  (This “raid” was the Second Dahomean War of 1892-1894, during which France crushed the power of the king of Dahomey and his army, including its famed Amazon contingent.)  Further, the French government pledged a $22.5 million loan to Benin in order to construct a suitable museum at the southern city of Abomey, a UNESCO World Heritage site where the kings of Dahomey once lived.[18] 

Souleymane Bachir Diagne, a Senegalese professor of French at Columbia University in New York who provided input for the Savoy-Sarr Report, thought those twenty-six objects repreented “a good place to start.”

First, symbolically: This was the kind of restitution that would give full weight to Macron’s promise.  These were spoils of war, taken punitively after a well-documented historical battle, and put in the [Musée d'Ethnographie du] Trocadéro [and subsequently to the Musée du Quai Branly].  They were taken directly from a king, the king of Dahomey.  The second aspect is that some of these works were already lent to Benin.  They were on view at Cotonou in 2006, and drew 275,000 visitors in an African country where people do not usually go to museums.[19]

Whatever else Macron accomplished, he certainly put a challenging goal on the table.  “We should pay attention to how national institutions like the Musée du Quai Branly,[20] France’s pre-eminent ethnographic museum, proceeds with loaning or returning African object to their countries of origin in the next few years,” suggested archaeologist Rachel King, who teaches cultural heritage studies at University College London.[21]  In other words, buckle up your seatbelts, folks, because this could be a real learning experience.

Well, that was then and this is now.  So, here we are two years after Macron’s speech, and where are we? 

That’s what some observers asked recently, when the second anniversary of Macron’s address came around without even one of the twenty-six pieces wending its way from the Musée du Quai Branly in Paris to the still-unbuilt museum in Abomey.  These queries boiled down to some variation of American comedic actor Fred Willard’s trademark “Hey!  Wha’ happen’?”

That question is answered in large part by referring to the Savoy-Sarr Report itself.  In all of its thoroughness, depth, and nuancing, the report — while sometimes swaddled in the sort of opaque prose that relegates so much academic writing to the margins[22] — makes two points abundantly clear. 

First, the ripping-off of African material culture by European colonial powers was a sordid business, and a strong case can be made for returning quite a bit of the African loot.  (And I mean “loot,” in the sense of something that was actually stolen, as in war booty, e.g. those twenty-six pieces at the Musée du Quai Branly.) 

Second, Macron’s ambitious promise remains unfulfilled — for the moment, not necessarily forever, maybe not for long, nobody really knows — because the situation in this instance mirrors the general run of the often-horrendous relationship between Africa and the West.  In other words, it’s complicated.

Alexander Herman, assistant director at Institute of Art and Law (which publishes the Art Antiquity and Law quarterly), points out that while the Savoy-Sarr Report “inspired a great deal of tense discussion in the museum world (both in France and abroad), most commentators agree it was too ambitious to be workable.”  This was perhaps at least partly attributable to the report’s status as “the brainchild of academia, not the balanced submission of practitioners in the field.”[23] 

Significantly, Herman suggests the “unwillingness of the authors to take account of the valuable role played by museums in conserving historical artefacts and educating the public — not to mention the importance of provenance research for the objects at issue” transformed the project “from a call to arms into a veritable pariah amongst many museum practitioners.”[24]  In other words, it appears the Savoy-Sarr Report may have alienated a key constituency, one on which the entire effort is pretty much dependent: museum professionals, among many of whom, according to one knowledgeable observer, the document quickly morphed from “a call to arms into a veritable pariah.”[25]

Stéphane Martin had served as the Musée du Quai Branly’s president (director) for twenty years when the Savoy-Sarr Report dropped in his lap.  To say he found the document unpersuasive and unhelpful is an understatement.  Martin immediately blasted what he saw as the report’s advocacy for “maximal restitution,” criticizing what he saw as an unfair, broad-brush indictment of all collecting with “the impurity of colonial crime.”[26]

Even beyond even that, there’s this: French law regards objects held in the nation’s public museums as “inalienable.” 

Think about that for a sec. 

French law is constructed to work against deaccession of objects form public collections.  This is done through a system of procedural roadblocks designed to make it extremely difficult to legally transfer such an object to some other institution located elsewhere.[27]  In fact, it appears that starting to get ready to commence to begin carrying out Macron’s plan requires nothing less than — for openers — legislation permitting it to wend its way through Parliament, something for which there does not currently appear to be much support.

Whether or not you agree with all, part, or none of Emmanuel Macron’s proposal, still, he’s caught a whiff of something in the wind.  Perhaps you see that wind as blowing for good or, alternatively, ill.  But it’s definitely there, although nothing about that makes anything easier.  Because these matters are…insanely complex affairs involving governments, museums, researchers, special pleaders, the appropriation and allocation of funds, changing laws, bidding and contracting, local politics, drafting committees, planning groups, claims and counterclaims, questions about conversation and preservation, and a multitude of other just plain stuff.  One thing you can say about the report Macron’s speech generated: it insisted more attention be paid to a group least listened to, historically speaking: indigenous peoples.

Consider, in that light, the words of Kwame Opoku, who frequently contributes articles about museums and African cultural objects to the Modern Ghana news website.  Opoku basically considers just cutting to the chase when he suggests Westerners “should keep the looted artefacts until they finally accept that it is wrong and condemnable to steal the artefacts of other peoples and after 100 years pretend they are doing us a great service by even discussing the issues involved.”[28]

Obviously, the goal Emmanuel Macron sketched out for those students in a former French colony just a little more than two year ago still remains out of sight, hidden somewhere over the horizon.  But that does mean it hasn’t or isn’t exerting influence in the larger tribal art world.  This is certainly a topic worth revisiting soon. 

For now, this has been an interesting, cautionary tale.  “Returning material to its homeland is never a simple process,” Alexander Herman of the Institute of Art and Law explains.  “Rather, it is part of a larger web of exchange and cooperation, one primarily built on relationships.  Those relationships neither begin nor end with restitution, which is only one part of a larger story.”[29]

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] Burkina Faso’s colonial period officially ended in 1960, at which time it was known as the Republic of Upper Volta.   In 1984 the nation underwent a name change when it became Burkina Faso (Land of the Upright People).  Lawrence Rupley, Lamissa Bangali, Boureima Diamitani, Historical Dictionary of Burkina Faso (Lanham, MD: Scarecrow Press, 2013), ix, liv, 4, 33, 191.

[2] “Macron Calls Colonialism a ‘Grave Mistake’ During Visit to Ivory Coast,” France24 (Dec. 21, 2019), https://www.france24.com/en/20191222-frence-president-macron-on-official-visit-to-ivory -coast-calls-colonialism-a-grave-mistake

[3] Ibid.  Macron has been consistent in his condemnation of France’s colonial activities. “During his election campaign, Macron created a storm of controversy in France by calling the colonisation of Algeria a ‘crime against humanity.’  In a 2017 TV interview, he said French actions in Algeria, which achieved independence in 1962 after eight years of war, were ‘genuinely barbaric, and constitute a part of our past that we have to confront by apologising’.” 

[4] Bénédicte Savoy and Felwine Sarr, The Restitution of African Cultural Heritage. Toward a New Relational Ethics (Paris, 2018), 1, hereafter referred to as “Savoy-Sarr Report,” is available in English translation at http://restitutionreport2018.com/sarr_savoy_en.pdf

[5] Anna Codrea-Rado,”Emmanuel Macron Says Return of African Artifacts Is a Top Priority,” The New York Times (Nov. 29, 2017), https://www.nytimes.com/2017/11/29/arts/emmanuel-macron-africa.html

[6] Ibid.

[7] Savoy-Sarr Report, 3.

[8] “Missions: A Bridge Between Cultures,” (Musée du Quai Branly Jacques Chirac, n.d.), http://www.quaibranly.fr/en/missions-and-operations/the-musee-du-quai-branly/#:~:text=; Farah Nayeri, “Museums in France Should Return African Treasure, Report Says,” The New York Times (Nov. 21, 2018), https:/ /www.nytimes.com/2018/11/21/arts/design/france-museums-africa-savoy-sarr-report.html/.

[9] “Missions: A Bridge Between Cultures.”

[10] Codrea-Rado. 

[11] “Biography: Bénédicte Savoy,” Collège de France (n.d.), https://www.college-de-france.fr/site/en-benedicte-savoy/Biography.htm

[12] “Felwine Sarr,” OSIWA  (Open Society for Initiative in West Africa, 2020),   http://www.osiwa.org/osiwa_member/felwine-sarr/

[13] Savoy-Sarr Report, 1.

[14] Ibid., 2.

[15] Farah Nayeri.

[16] Ibid.

[17] Heleluya Hadero, “Benin’s New Museum for Artifacts Looted by France Is Being Built Using  a French Loan,” QuartzAfrica (wJuly 23,2019), https://qz.com/africa/1672922/france-will-help-fund-benin-museum-housing-looted-artifacts/

[18] Ibid.

[19] Jason Farago, “Artwork Taken From Africa, Returning to a Home Transformed,” The New York Times (Jan 3, 2019), https://www.nytimes.com/2019/01/03/arts/design/african-art-france-museums-restitution.html

[20] The Musée du quai Branly-Jacques Chirac in Paris.

[21] Nayeri.

[22] You didn’t ask for it, but here’s a small taste: “Guided by dialogue, polyphony, and exchange, the act or gesture of restitution should not be considered as a dangerous action of identitarian assignation or as the territorial separation or isolation of cultural property.” SS 2.

[23] Alexander Herman, “One Year After the Sarr-Savoy Report, France Has Lost Its Momentum in the Restitution Debate,” The Art Newspaper (Nov. 12, 2019), https://www.theartnewspaper.com/comment/one-year-after-sarr-savoy-where-are-we-on-colonial-restitution

[24] Ibid.

[25] Ibid.

[26] Naomi Rea, “A French Museum Director Pushes Back Against a Radical Report Calling on Maron to Return Looted African Art,” Artnet News (Nov. 28, 2018), https://news.artnet.com/art-world/quai-branly-president-macron-africa-restitution-report-1404364#:~:text=

[27] “Deaccessioning in France,” Museums & Deaccessioning in Europe (Creative Culture Consultancy, Mondriaan Fonds (n.d.), https://www.museumsanddeaccessioning.com/ countries/france/; Herman.

[28] Kwame Opoku, “Miracle Abjured: Stéphane Martin Reiterates His Objection To Restitution Of Looted African Artefacts,” Modern Ghana (Jan. 9, 2020), https://www.modernghana.com/news/978035/miracle-abjured-stphane-martin-reiterates-his.html

[29] Herman.

Legal Briefs: NAGPRA Repatriations through October 9, 2019

by Ron McCoy 

Those of you who regularly check out this column know it frequently addresses goings on associated with the United States’ Native American Graves Protection and Repatriation Act (NAGPRA) of 1990.  Although NAGPRA recently figured in a thus far unsuccessful attempt to “repatriate” an orca from Miami’s Seaquarium,[1] the aspect of this law that usually garners attention here is somewhat different.  That’s because ATADA’s intended audience composed of of curators, dealers, and collectors of tribal art are probably more concerned with the law’s provision for repatriating certain types of objects of indigenous (American Indian and Native Hawaiian) origin from institutions which satisfy its broad definition of “museums.”[2]

NAGPRA zeroes in on “cultural items”[3] falling into one or more of five categories: human remains, associated funerary objects, unassociated funerary objects, sacred objects, and cultural patrimony. Of these categories, two receive attention here: sacred objects and cultural patrimony. (Occasionally, because of historic or other considerations, we also take note of transfers involving unassociated funerary objects.)

Under NAGPRA, 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.”[4]  As for “cultural patrimony,” a piece qualifies for inclusion in this category 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.”[5]

Occasionally, notices of intent to repatriate per NAGPRA appear in the Federal Register.  These represent the agreement reached between one or more claimants and the museum (as defined by NAGPRA) responsible for the item(s) in question. That agreement specifies the party or parties to which the item(s) will be repatriated by the museum, pending the filing of a competing claim. Unless otherwise noted, quotations include here are drawn from those notices.

Haudenosaunee/Iroquois Miniature False Face Mask
Sacred Object/Object of Cultural Patrimony

Colgate University, Longyear Museum of Anthropology, Hamilton, NY (Oct.9, 2019): Sometime early in the twentieth century an unidentified member of the Oneida Indian Nation gave Hope Emily Allen (1883-1960),[6] an independent scholar of some renown who focused on medieval mystical traditions, “a miniature false face mask or medicine mask,” which she “added to her own personal collection.” The little mask remained with Allen throughout her life.  In 1962, two years after her death, it was sold to the museum.

This notice does not describe the piece, but relies, instead, on the sort of standard language one associates with Haudenosaunee repatriation claims dealing with False Face masks; specifically, these “are not only sacred objects used in the performance of medicinal ceremonies, but are also considered objects of cultural patrimony that have ongoing historical, traditional, and cultural significance to the group.” 

The museum determined that for purposes of NAGPRA the miniature mask was both a sacred object and object of cultural patrimony which should be repatriated to the Oneida Indian Nation in New York.

Three Tesuque Ceramic Vessels, Comanche Dance Headdress and
Painted Buffalo Robe
Sacred Objects/Objects of Cultural Patrimony

Brooklyn Museum, Brooklyn, NY (Oct. 9, 2019): This notice deals with five items: three ceramic pieces ­­– a pitcher, storage jar, and seed bowl­ – as well as a headdress and painted buffalo hide robe evidently used in Tesuque Pueblo’s Comanche Dance. These objects joined the museum’s collections at various times between 1901 and 1967.

Stewart Culin (1858-1929), a pioneering and prodigious ethnographer,[7] obtained the headdress – “made from hide, dyed hair, horn, and fabric” – and the painted buffalo robe (“the painted design is of the ‘box-and-border’ type, which is found throughout the central Plains”)[8] from Benham Indian Trading Company in Albuquerque in 1907. 

The ceramic pieces came from three sources: Colonel James Stevenson (1840-1888),[9] a geologist of broad interests who served with the Hayden Survey from 1872-1878 and joined John Wesley Powell’s fledgling Bureau of American Ethnology in 1879, obtained the pitcher at Tesuque in 1879.[10] The museum bought the storage jar in 1902 from “Captain” C.W. Riggs,[11] an enterprising dealer in Native American objects, who acquired it at Cochiti sometime between 1876 and 1891. The seed bowl came to the museum via an estate donation in 1967.

The descriptions of the objects referenced by this notice are far more helpful than the pithy, astonishingly uninformative text linked to far too many NAGPRA notices of intent to repatriate. Many of the notices leave readers unable to visualize what sort of object is being discussed. This would appear to negate NAGPRA’s capacity for educating curators, dealers, and collectors with specifics about the objects covered by its broad umbrella.  But here, for example, we learn that the storage jar Riggs picked up at Cochiti “is decorated with black designs – corn and circular motifs – on white pigment; the lower portion is painted red….it’s [sic] solid lines (without ceremonial breaks), wide mouth and tapered lower half, lack of human and animal figures, and presence of floral motifs all support a Tesuque origin.”[12] 

The museum concurred with claimants’ contention that the five pieces qualified as sacred objects and objects of cultural patrimony under NAGPRA, and should be given to the Pueblo of Tesuque in New Mexico.

Three Coast Salish Masks
Sacred Objects

The Field Museum, Chicago, IL (Sept. 3, 2019): “At an unknown date, three cultural items [masks] identified as Salish in the Field Museum’s records were removed from an unknown location and sold to H. Stadhagen [sic], a purveyor of indigenous material culture.”  In 1902, Charles Newcombe (1851-1924),[13] a British physician and ethnographic researcher whose career found him collecting numerous pieces of indigenous Northwest Coast manufacture for various institutions, purchased the masks from “H. Stadhagen’s [sic] Indian Curio store in Victoria, B.C.” on behalf of the museum. Stadthagen’s was one of the early entrepreneurial establishments that helped transform Northwest Coast indigenous art into a business, and also turned Victoria into the effective hub of that enterprise.[14]

The notice states the museum’s intention to return the masks to the Samish Indian Nation in Washington. Unfortunately, the notice does not tell us anything about the masks’ appearance, much less their role in Salish life beyond the formulaic statement that they “are an integral part of rituals and ceremonies performed by Coast Salish traditional religious leaders.”

Five Haundenosaunee/Iroquois (Cayuga) Wooden Masks
Sacred Objects

New York State Museum, Albany, NY (Aug. 5, 2019): The museum received five wooden Haudenosaunee masks as donations from poet, philanthropist, and Indian rights activist Harriet Maxwell Converse (1836-1903).  According to the notice, “one of the medicine faces was reportedly made in Canada about 1779.” The museum agreed with the Haudenosaunee Standing Committee on Burial Rules and Regulations:[15] the five masks should be transferred to the Cayuga Nation in New York.

Although the notice mentions five masks, it provides no description of them or their role in Haudenosaunee society, and produces no information about provenance beyond that already noted. As a side note, by my rough count no fewer than seventy-five masks and nine wampum belts that Converse gave to the museum have been repatriated since NAGPRA went into effect.

Winnebago Medicine Bundle
Sacred Object

Nebraska State Historical Society, DBA History Nebraska, Lincoln, NE (Aug. 5, 2019):  In 1922, Robert B. Small donated a Winnebago bundle to the museum. Small, who worked as a clerk at the Winnebago Agency, received it more than fifty years earlier ­­– meaning, circa 1870 – as a gift from Joseph Harrison, a Winnebago. According to Harrison, the bundle “had kept away the evil spirit and also given him good luck in war and in peace.”  He evidently trusted it would perform a similar function in Small’s life. (As the notice explains, “Harrison gave the bundle to his old friend…believing it would bring him good fortune too.”)

Although the notice describes the bundle as a sacred object which should be turned over to the Winnebago Tribe of Nebraska, it provides absolutely no helpful information about the piece, its provenance, contents, function, associations, or role in Winnebago culture.

Blackfeet Beaver Medicine Bundle
Object of Cultural Patrimony

Buffalo Bill Center of the West, Plains Indian Museum, Cody, WY (July 19, 2019):  According to the notice, in 1965 artist-collector Paul Dyck (1917-2006) obtained a circa-1860 Blackfeet Beaver Medicine Bundle from Dan Bull Plume, Sr., of Browning, Montana.[16] Pioneering anthropologist, Clark Wissler (1870-1947) described this type of physically large, spiritually potent manifestation of sacral power as “the bundles par excellence.”[17]

The notice informs us that Dyck loaned the bundle to the museum in 2006. In 2007, a year after Dyck’s death, his foundation changed that loan into a gift.  The following year, “members of the Blood Tribe (Canada) Spiritual Advisors, consisting of Horn Society advisors and members, viewed the Beaver Medicine Bundle…, confirmed its identity, and affirmed that Beaver Bundle Ceremonies associated with this bundle are still practiced by both the Blackfoot Nation of Canada and the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.”

The museum agreed to repatriate the Beaver Medicine Bundle to the Blackfeet Tribe of the Blackfeet Indian Reservation in Montana.

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

NOTES

[1] Lynda V. Mapes, “Lummi Tribal Members Could Sue Under Repatriation Act to Free Captive Orca in Miami,” The Seattle Times (July 27, 2019), https://www.seattletimes.com/seattle-news/environment/lummi-nation-could-sue-under-repatriation-act-to-free-captive-orca-in-miami/; Kie Relyea, “Saying They’re Family, Lummi Nation Gives These Endangered Orcas a New, Ancestral Name,” The Bellingham Herald (Sep. 10, 2019), https://www.bellinghamherald.com/news/local/article234443642.html.

[2] “Any institution or State or local government agency (including any institution of higher learning) that receives Federal funds and has possession of, or control over, Native American cultural items [is a museum, for purposes of NAGPRA]. Such term does not include the Smithsonian Institution or any other Federal agency. [25 USC 3001 (8)].”  “NAGPRA Glossary,” National NAGPRA (National Park Service, U.S. Department of the Interior, n.d.), https://www.nps.gov/subjects/nagpra/glossary.htm

[3] Under NAGPRA, “cultural Items” means: “Human remains, associated funerary objects, unassociated funerary objects, sacred objects, cultural patrimony.” Ibid.

[4] Ibid.

[5] Ibid.

[6] For Allen see Clarissa W. Atkinson, “In Memoriam: Hope Emily Allen (1883-1969 [sic]),” 14th Century English Mystics Newsletter, 9 (4) (Dec. 1983): 210-217.

[7] Culin’s writings are noted in “Guide to the Culin Archival Collection” (Brooklyn Museum, n.d.), https://www.brooklynmuseum.org/opencollection/research/culin/; also “Online Books by Stewart Culin” (The Online Books Page, n.d.), http://onlinebooks.library.upenn.edu/webbin/book/lookupname?key=Culin%2C%20Stewart%2C%201858-1929.

[8] According to the notice: “Representatives from Tesuque said that this robe was used in the Comanche Dance and was likely purchased from Comanche traders for the purpose.”

[9] Stevenson was married to pioneering American female anthropologist Matilda Coxe Stevenson (1850-1915).  Like her husband, she formed part of J.W. Powell’s elite crew of ethnographers when the Bureau of American Ethnology opened for business in 1879.  Joy Harvey, “Matilda Coxe Stevenson (1850-1915),” in Marilyn Ogilvie and Joy Harvey, The Biographical Dictionary of Women of Science: Pioneering Lives from Ancient Times to the Mid-20th Century (Abingdon, Oxon, Great Britain: Routledge, 2003), 1232-1233.  See, also, Darlis A. Miller, Matilda Coxe Stevenson: Pioneering Anthropologist (Norman: University of Oklahoma Press, 2007).

[10] Stevenson’s pitcher joined the collections of the U.S. National Museum; it was purchased by the Brooklyn Museum in 1901.

[11] The rank appears to be an honorific term, as Chauncey Wales Riggs’ name does not appear in Francis B. Heitman, Historical Register and Dictionary of the United States Army from Its Organization, September 29, 189, to March 2, 1903, 2 vols. (Washington, D.C., 1903).  Riggs earned a reputation as a digger of burial mounds in the eastern Arkansas, during which his predilection “unscientific excavation” was on display.  “Captain CW Riggs (Biographical details),” (The British Museum, n.d.), https://www.britishmuseum.org/research/search_the_collection_database/term_details.aspx?bioId=199902.  For a photograph of the colorful Riggs, see Robert C. Manifort, Jr., Sam Dellinger: Raiders of the Lost Arkansas (Fayetteville: The University of Arkansas Press, 2008), 21.

[12] Consultants from Tesuque “identified this jar as one that would have been owned and used by Tesuque’s Warrior Society.”

[13] Kevin Neary, “Newcombe, Charles Frederic,) in Dictionary of Canadian Biography, Vol. 15 (Toronto: University Tronto/Unversité Laval, 2005), http://www.biographi.ca/en/bio/newcombe_charles_frederic_15E.html.

[14] “The early tourist trade emerging in that city [Victoria] in the 1870s displayed a keen appetite for carvings, baskets, and totems, an appetite that grew over time.  Between 1880 and 1912, five different curio businesses operated in Victoria.  While they serviced the special needs and requests of collectors and curators, these curio dealers also supplied the hungry and less discerning tourist market.  Aaronson’s Indian Curio Bazaar on Government Street claimed to be ‘the cheapest place on the Pacific Coast to buy all kinds of Indian Baskets, Pow-Wow Bags, Wood and Stone Totems, Pipes, Carved Horn and Silver Spoons, Rattles, Souvenirs, Novelties, Etc.”  Over on Johnson Street, Hart’s Indian Bazaar respectfully invited the public, ‘especially tourists,’ to visit this shop with the ‘largest and finest assortment of curios on the Pacific coast.’  At Stadthagen’s Indian Trader, 79 Johnson Street, collectors could buy not only trinkets and baskets, but also large totem poles.”  To this list should be added Frederick Landsberg’s “curio shop,” the largest of the lot.  See Margaret Horsfield and Ian Kennedy, Tofino and Clayoquot Sound: A History (Madeira Park, BC: Harbour Publishing, 2014), n.p. accessed online Oct. 20, 2019.  For the emergence of markets for selling, buying, and reselling Northwest Coast indigenous art see Dennis Cole, Captured Heritage: The Scramble for Northwest Coast Artifacts (Norman: University of Oklahoma Press, 1995).

[15] For information about the Haudenosaunee Standing Committee on Burial Rules and Regulations see “Haudenosaunee Repatriation Committee” (Haudenosaunee Confederacy, 2018), https://www.haudenosauneeconfederacy.com/departments/haudenosaunee-repatriation-committee/.

[16] A note of purposes of disclosure: I served on the board of Dyck’s research foundation after the purchase date referenced here and prior to its transaction with the museum.  Dan Bull Plume’s deep involvement in Blackfeet spiritual life is attested to in Adolf Hungry Wolf, The Blackfoot Papers [Vol. 2]: Pikuni Ceremonial Life (Skookumchuck, BC, Can.: The Good Medicine Cultural Foundation, 2006), 454-455; Donald Duane Pepion, “Blackfoot Ceremony: A Qualitative Study of Learning,” Ed.D. thesis, Montana State University-Bozeman (Dec. 1999),111.  For a photograph of an image of Dan Bull Plume by artist Winold Reiss (1886-1953), see “Dan Bull Plume,” Winold Reiss: Life, Works, Studio Circle” (The Reiss Partnership, 2014), https://www.winoldreiss.org/works/artwork/portraits/A474.htm.

[17] Clark Wissler, “Ceremonial Bundles of the Blackfoot Indians,” Anthropological Papers of the American Museum of Natural History, 8, pt. 2 (1912), 169.

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

by Ron McCoy

View fullsize

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).

Legal Briefs: NAGPRA Catch-Up

by Ron McCoy

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 - 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.

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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.    

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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

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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