Legal Issues

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

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


2019 STOP Act: Fixing a Flawed Indian Art Bill

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

by CCP Staff

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

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

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

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

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

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

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

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

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

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

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

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

Practical Issues with 2019 STOP Act:

  • No dollar threshold.

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

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

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

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

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

Public Policy Issues with 2019 STOP Act:

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

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

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

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

Museum Issues with 2019 STOP Act:

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

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

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

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

Constitutional Issues with 2019 STOP Act:

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

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

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

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

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

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

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

  • Evidence from tribes is withheld from exporters.

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

  • Eliminates Freedom of Information Act access to information.

Legal Briefs: NAGPRA Catch-Up

by Ron McCoy

The Tewa Pueblo at San Juan, via Wikimedia Commons

The Tewa Pueblo at San Juan, via Wikimedia Commons

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

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

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

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

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

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

       

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

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

 

Trunk of Omaha “Medicinal Bundles”
• Sacred Object

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

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

 

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

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

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

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

 

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

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

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

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

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

 

Haudenosaunee Wampum Belt
• Object of Cultural Patrimony

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

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

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

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

 

Yaqui Deer Head
• Object of Cultural Patrimony

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

 

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

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

 

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

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

 

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

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

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

 

San Juan Pueblo Prayer Stick
• Sacred Object

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

 

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

 

Endnotes:

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

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

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

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

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

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

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

President's Letter - Winter 2019

Dear Fellow ATADA Members,  

As we enter 2019, there is a new majority in the House of Representatives. The various committees will have new, Democratic majority leaders, members and staff. As a key voice for art dealers, museums, and collectors, ATADA’s advocacy work must continue to ensure that legislators understand the issues related to collecting and trading in tribal art. A primary concern: despite acceptance of alternative legislation forwarded by ATADA together with tribes in 2018, the harmful STOP legislation is likely to be re-introduced this session. We especially look forward to working with the first Native American Congressional representative from New Mexico, Representative Deb Haaland, a registered member of the Laguna Pueblo. 

Legal Fund Auction - Call for Contributions

Seeking Items for Auction in Support of the

Screen%2BShot%2B2019-01-24%2Bat%2B1.42.57%2BPM.jpg
  • ATADA needs YOU to contribute items for auction to replenish the Legal Fund.

  • We accomplished much this past year. We halted two different bills that would have harmed art dealers, collectors and museums. 

  • Already in 2019, Congress is swamped with demands for more damaging legislation.

  • Even with reduced fees, combating phony claims about ‘stolen’ art and money-laundering is costly, but the cost to you of failing to act could be far higher.

  • We need your help to keep you and your collections safe from government overreach.

  • We are asking each of our members to contribute at least one item worth in excess of $500 for an upcoming series of auctions to benefit ATADA.

  • Every ATADA Board Member has committed to donating: we need you to do the same.

  • Public education and legislative action will be more important than ever in 2019. Please act today - so we can meet the challenges ahead.  

More details coming soon!

If you are interested in donating one or more items - or would like to make a monetary contribution to the Legal Fund, please contact: 

David Ezziddine at director@atada.org

Learn more about the work we have done at: atada.org/legal-issues

 
 
 

ATADA is a 501(c)(4) organization; gifts to ATADA and the ATADA legal fund are not tax deductible. 

ATADA’s tax status enables it to work directly in Washington and elsewhere to make real change for your benefit.

 

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

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

Legal Committee Report - January 2019

Thank you for making ATADA the premier tribal art organization in the U.S.! We need your continued support to protect you, your business, and your collections in 2019. Here is just some of what we accomplished in 2018, thanks to you! 

  • We halted passage of STOP, the Safeguard Tribal Objects of Patrimony Act, S. 1400, for the 2018 legislative session. STOP made it official U.S government policy to encourage the return to tribes of all “significant objects, resources, patrimony, or other items… affiliated with a Native American Culture,” including jewelry, ceramics and other legal possessions.

ATADA Position on Recent AAIA Claims

Recent statements by the Association on American Indian Affairs have called for museums not to exhibit and auction houses to cease sales of a wide range of Native American objects in commercial circulation, unless exhibition or sale is approved by tribes. ATADA, the largest U.S. organization of dealers in antique and contemporary Native American and global ethnographic art, objects strongly to these statements, which we believe will harm the legitimate art trade, Native artisans, and the American public.

Maine Antique Digest Article on Recent AAIA Claims

On October 8, 2018, Eldred D. Lesansee, the public relations spokesman for the Association on American Indian Affairs (AAIA), contacted Rago Arts & Auction Center in Lambertville, New Jersey, asking the auction house to withdraw American Indian lots from its October 19 auction of tribal art from the collection of Allan Stone and other owners, alleging that Rago had not made contact with affiliated Native American tribes about the property.

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

by Ron McCoy

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

Pyramid at Tulum via Wikimedia Commons

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Click for Endnotes

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

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

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

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

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

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

Bill Introduced to Regulate Export of U.S. Tribal Art

Native American and Native Hawaiian Cultural Heritage Protection Act of 2018

hand-only-transp-web.png

New Mexico Congressman Steve Pearce has introduced a bill, H.R. 7075, the “Native American and Native Hawaiian Cultural Heritage Protection Act of 2018,” that will provide tribes with assurance that cultural items obtained in violation of U.S. laws will not be exported beyond the reach of legitimate tribal claimants.

 In a release on the day of introduction, October 19, the nation’s largest tribal art dealer organization, ATADA, thanked Congressman Pearce for his leadership in bringing together the tribes and art market participants to craft legislation that was “balanced and properly addresses the tribes’ valid claims while recognizing the importance of a vibrant art market to New Mexico’s economy.”


ATADA is working for you! Help us continue to defend dealer and collector rights.

Bill Reaffirms the Law and Focuses on Stopping Illegal Trade

The key purpose of the Pearce bill is to halt the exportation of Native American and Native Hawaiian items obtained in violation of ARPA, NAGPRA or the 1906 Antiquities Act. H.R. 7075 requires certification and review (or self-certification for low value shipments) for export of all “covered items” which are published in a list in the Federal Register; the exporter must affirm that to the best of his or her knowledge, the objects are not acquired in violation of any U.S. law.

Under U.S. law, the vast majority of Native American and Native Hawaiian objects, including many culturally important items, may be lawfully owned by individuals and institutions. Others may not: human remains may never be sold, nor items taken from federal or Indian lands without a permit. Also, certain religiously important objects and items communally owned that are categorized as cultural patrimony under the 1990 Native American Graves Protection and Repatriation Act may be claimed by tribes from museums that hold them, if the museums receive federal funding.

Lawful Trade Recognized

 As ATADA noted in its release, “Native American art has been collected for over a century, and holds pride of place in American museums and private collections.” ATADA stated that tens of thousands of small U.S. businesses and tribal enterprises are dependent on the legal trade in Native American art and antiques. It stressed that international and domestic cultural tourism, especially to New Mexico and the Southwest, supports hundreds of thousands of jobs and makes up at least 10% of New Mexico’s economy.

H.R. 7075 states its intent to “facilitate the export of lawfully possessed Native American and Native Hawaiian items.” This purpose sets the Pearce bill apart from another bill that is pending in the Senate, known as the “STOP Act,” S. 1400, which fails to place the burden of proof on the government to show an object is unlawfully acquired. The proposed STOP Act would also make it official government policy to “voluntarily” return all cultural items to tribes.

 

How is Due Process Protected?

H.R. 7075 and other bills dealing with Native American cultural items previously introduced in both House and Senate have been bedeviled by an intractable problem: how do you write a bill making it illegal to export objects because they are unlawfully acquired under existing U.S. laws, when the public has no way to specifically identify what objects are unlawful to export?

For example, under the Archaeological Resources Protection Act (ARPA), what makes an item unlawful is not based on what it is but instead on where it was found - whether it was taken without permission from tribal or federal lands. For items in circulation in trade for decades, this information is almost never known.

Under NAGPRA, it is not only essential to know when an object was originally acquired - but tribes are often unwilling to identify what items are sacred or which they consider inalienable cultural patrimony. The tribes treat this as privileged information.

However, by setting forth remedies short of seizure and by penalizing “bad actors” who try to export items knowing that they were illegally acquired, H.R. 7075 attempts to address the absence of due process present in other bills.

 

Which Items Will Require Certification?

It remains uncertain which types of Native American items will actually require export certification under H.R. 7075. The bill sets no value threshold, or threshold related to rarity or “importance,” unlike export certification systems in Canada, Europe, Japan, or the UK.

The tribes’ reluctance to identify which objects are sacred or ceremonial – and which might require certification – means that the bill’s future effect is not yet clear. The bill states that the Secretary of the Interior will publish a notice in the Federal Register that will include “a description of characteristics typical of covered items,” [requiring certification] which nonetheless “shall be sufficiently specific and precise to ensure export certification is required only of such covered items and that fair notice is given to exporters and other persons as to which items require export certification.”

Therefore, the breadth of the list of “covered items” which will be subject to export certification will determine how great a financial and time burden is placed upon commercial and personal exports of Native American objects. This list was not defined in the bill.

H.R. 7075 does acknowledge that objects made for commercial purposes “generally” do not qualify as a covered item requiring certification.

 

Requesting Assistance from Other Nations

A further “purpose” confirms the authority of the President to request agreements or “provisional measures” subject to the limitations of Article 9 of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property to obtain the return of objects obtained in violation of ARPA, NAGPRA, and the Antiquities Act. This may assist the tribes in obtaining return of Native human remains still in foreign museum or scientific collections.

 

How will exports of Native American and Native Hawaiian goods work?

Exporters of all Native American and Native Hawaiian goods that are listed in the Federal Register as “covered items”, regardless of value, must submit an online application for export certification though the U.S. Customs and Border Protection’s AES online export system.

If the exported items are Native American or Native Hawaiian “covered items,” the exporter must fill out an attestation form stating that “to the best of the applicant’s knowledge and belief, the applicant is not exporting a Native American cultural item obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq. or 18 U.S.C. 1170), a Native American archaeological resource obtained in violation of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), or a Native American object of antiquity obtained in violation of the Antiquities Act under section 1866(b) of title 18, United States Code.”

The proposed legislation will require only a limited AES filing for “covered items” of less than $2500 value, and an export certification document will be generated immediately on self-certification by the exporter.

However, the legislation does significantly broaden previous export requirements. Since July 2017, only commercial shipments of goods totaling $2500 in value or more have required online AES filings.

If a shipment that includes native American or Native Hawaiian “covered items” is valued at $2500 or more, there will be a 6-day time period for review of the proposed export by U.S. Customs and Border Protection and the Department of the Interior (which will provide information on the items being exported to tribes for review). With notice to the exporter, U.S. Customs and Border Protection can extend the review of an application for certification for up to 30 days if credible evidence of a violation of law is provided which requires investigation, after which certification will be either approved or denied.

 

A Federalized Voluntary Returns Program

In its release, ATADA stated that it was “proud that the principles of ATADA’s Voluntary Returns program, which brings important items of religious and ceremonial use back to the tribes, have inspired a similar federal program.” H.R. 7075 sets up a completely voluntary returns program for items that anyone wishes to donate to a tribe of origin.

The voluntary returns program is designed to cover a broad range of items desired by the tribes, regardless of whether the items are held in violation of any U.S. law. H.R. 7075 establishes two working groups as advisers/consultants for the voluntary returns program, one with tribal members and one that will include collectors, dealers and museums. The bill will facilitate returns by making “provision for tax documentation of deductible gifts of Native American items to Native American tribes and Native Hawaiian organizations,” which some tribes have been unwilling or unable to do on their own.

 

Enabling Tribes to Receive Forfeited Items and to Request Halting Legal Action

The bill also amends ARPA, NAGPRA, and the Antiquities Act, which until now have directed returns of all seized or forfeited items to the federal government, to permit such items to be returned to tribes. Another provision would allow a Native American tribe or Native Hawaiian organization to direct the Department of Justice to halt a legal action regarding a sale of an item (which might facilitate returns, particularly from overseas sales).

 

Summary:

1.     The bill requires that an exporter have knowledge that an object was obtained in violation of ARPA or NAGPRA for the exporter to be subject to penalties.

2.     There is no expansion of ARPA or NAGPRA except to enable returns of forfeited objects to tribes as well as to the federal government.

3.     The Secretary of Interior will publish a list of covered items requiring certification that will have a “description of characteristics typical of covered items,” however, the description must be “sufficiently specific and precise to ensure export certification is required only of such covered items and that fair notice is given to exporters and other persons as to which items require an export certification”

4.     The bill states that objects made for commercial purposes generally do not qualify as a covered item.

5.     All covered items require certification, but items under $2500 may be self-certified by filing an attestation form online through the U.S. Customs’ online AES system with immediate issuance of a certification.

6.     All covered items or groups of items $2500 or over require full processing through the AES system, certification shall be issued within 6 days.

7.     With notice to the exporter, U.S. Customs and Border Protection can extend the review of an application for certification for covered items over $2500 for up to 30 days if credible evidence is provided which requires investigation, after which certification shall be approved or denied.

8.     A “picture” of the covered items must be submitted with the application for certification for all items, regardless of value. The process for submission of a picture/photo is not determined.

9.     Information on the covered items included in the filings will be made available by the Secretary of the Interior to Native American tribes and Native Hawaiian organizations via a secure website or other method in compliance with AES procedures.

10.  Denial of export certification does not in itself enable seizure or in any way affect the legal status of an item under existing United States law.

11.  Whoever seeks to export a covered item without a required export certification but voluntarily returns the covered item to the Indian Tribe with a likely cultural affiliation prior to active investigation shall not be prosecuted for such violation with respect to the covered item. The process of obtaining an export certification does not qualify as active investigation.

12.  Any covered item that a person is attempting to export without an export certification shall be subject to seizure; a covered item seized under this clause for which credible evidence does not establish within 60 days that it was obtained in violation of U.S. shall be returned to the exporter but shall not receive an export certification.

13.  If credible new evidence is provided that indicates a covered item that received an export certification was obtained in violation of ARPA, NAGPRA etc., the certification can be revoked before export; if discovered after export, the export can be revoked only after seeking court approval.

14.  If the U.S. Customs and Border Protection denies an export certification, issues a Detention Notice, or seizes a covered item, the applicant shall, upon request, be given a hearing on the record. The provisions of 18 U.S.C. 983(c) shall apply to any forfeiture.

15.  An Indian Tribe or Native Hawaiian organization may submit a request to the Secretary of State that the US become involved in halting the international sale of Native American cultural items obtained in violation of U.S. law. Within 15 days the DOS shall contact the foreign state and the Department of Justice to transmit the request. In the case that an Indian Tribe or Native Hawaiian organization submits to the Attorney General a request that the Attorney General cease pursuing legal action with regard to the sale of the Indian Tribe’s or Native Hawaiian organization’s item, the Attorney General shall promptly cease pursuing such legal action.

16.  The Secretary of the Interior shall establish a federal framework for voluntary returns of items to tribes and convene working groups consisting of representatives of Indian Tribes and Native Hawaiian organizations, and a working group consisting of Native American and Native Hawaiian art dealers, collectors, and museums to advise the Federal Government on voluntary returns.

 

Definitions:

Definitions used by three U.S. laws are referenced in the bill. These laws serve very different purposes, and their inclusion is the bill is to segregate items obtained in violation of the underlying law. The definitions include:

(1) “cultural items” under the 1990 Native American Graves Protection and Repatriation Act (which primarily enable tribal claims to be made to these items when in federally funded museum collections),

(2) “archaeological resources” as defined under the 1979 Archaeological Resources Protection Act (which are unlawful to trade in if they were taken without a permit from federal or Indian lands), and

(3) “objects of antiquity” under the 1906 Antiquities Act. (This last term, “object of antiquity” was never defined in the Antiquities Act, and the lack of definition was the chief reason the Antiquities Act was held unconstitutionally vague in 1978 in the 9th Circuit.)

These different statutes’ definitions could, if very broadly interpreted, encompass virtually all objects made by Native peoples before 1918 under the ARPA definition (if taken from federal or Indian lands), and a quite broad swathe of items under NAGPRA, especially given that statute’s expansive definition of “cultural patrimony” as an “object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American...”

However, trade in objects matching these descriptions is not unlawful – only trade in items of these types that were unlawfully obtained after passage of each statute.

This article is published concurrently on the Cultural Property News website.
This article and all other articles published by Cultural Property News or by ATADA are for information purposes only. They are not legal advice.