Legal Issues

Update: Chinese Art and Antiques Dropped from US Tariff List

U.S. collectors, art dealers, and museums spared 25% art tariff

  The United States has imposed tariffs reaching 25% in 2019 on $200 billion dollars of Chinese goods, in a dramatic escalation of the Trump administration’s trade war with China. However, there was good news for the art community, as works of art, collector’s pieces, and Chinese antiques were among the very few items withdrawn from the tariff list.

 Over the last months, the Committee for Cultural Policy and Global Heritage Alliance researched and reported on the impact of the proposed tariffs.  Commenting on today’s announcement, Peter Tompa of Global Heritage Alliance said, “This decision shows that the U.S. Trade Representative listened and really understood the issues. The tariffs would not only have seriously damaged the ability of the U.S. art market to compete globally, but also harmed U.S. museum and public access to Chinese art and culture, and hurt hundreds of American small businesses.”

 Photo: China Galleries, Metropolitan Museum of Art, New York

Photo: China Galleries, Metropolitan Museum of Art, New York

“Taking art and antiques out was a good policy move as well as making total economic sense for the U.S.,” said Kate Fitz Gibbon of the Committee for Cultural Policy, whose research showed that China’s art monopoly would be strengthened by tariffs. “This is about more than money. Even at the height of the Cold War, the U.S. government understood that the international circulation of art and ideas promoted peace and positive relations.”

  Mark Dodgson of the British Antiques Dealers Association noted in a submission to the USTR, “The federal government of the United States does not tax the import of antiques. This enlightened attitude toward the art and antiques market has helped the United States to become the largest art market in the world.

 Together with other U.S. and international arts and art trade organizations, including the British Antiques Dealers Association, CCP and GHA provided written testimony to the United States Trade Representative (USTR). Tompa spoke in person to present these views at the hearings on the proposed tariffs; organizations representing over 5,000 art dealers worldwide submitted comments to the reviewing committee.

 Chief among the points made were that a tariff on antiques would please, not punish, the Chinese government and reinforce its global dominance of the Chinese art market. 

U.S. import restrictions already cover virtually all Chinese art and artifacts from the Paleolithic through the Tang period imported from China, as well as monumental sculpture and wall art over 250 years of age. The U.S. market in antique Chinese art is therefore dependent upon sourcing Chinese art from older collections held worldwide, which would also have been subject to the proposed tariffs. 

Although U.S. import restrictions – in place since 2009 – are claimed by China to be for the protection of ancient archaeological sites, in fact, they actually reinforce China’s monopoly on Chinese art. As Tompa told Cultural Property News, “A tariff will only drive more Chinese artifacts back to China, which is exactly what the State Department is doing with its import restrictions.”

The U.S. market for contemporary Chinese art also had a big win, as the proposed 25% tariff would have made it very difficult for U.S. dealers to compete in the global modern art market.

Tariffs of 10%, rising to 25% in 2019, were announced by the USTR on 5,745 of the 6,031 tariff lines on the list of Chinese imports initially proposed. The first tariffs will go into effect on September 24, 2018. The import categories removed from the tariff list included the following items of particular concern to museums, collectors, and the art trade.

9701.10.00
Paintings, drawings (o/than of 4906) and pastels, executed entirely by hand, whether or not framed.

9701.90.00
Collages and similar decorative plaques, executed entirely by hand, whether or not framed.

9702.00.00
Original engravings, prints and lithographs, whether or not framed.

9703.00.00
Original sculptures and statuary, in any material.

9704.00.00
Postage or revenue stamps, stamp-postmarks, first-day covers, postal stationery, and the like, used or unused, other than heading 4907.

9705.00.00
Collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archaeological etc. interest.

9706.00.00 Antiques of an age exceeding one hundred years.

 All seven of these proposed tariffs were withdrawn. According to a USTR release, the reviewers “engaged in a thorough process to rigorously examine the comments and testimony and, as a result, determined to fully or partially remove 297 tariff lines from the original proposed list.”

China has a billion-dollar annual internal market in art of all periods that includes the same kinds of antiques barred from U.S. import.

A comprehensive study by Artnet and the China Association of Auctioneers showed that after the enactment of the original Memorandum of Understanding imposing import restrictions on ancient and antique Chinese art in 2009, the auction market for art and antiques in mainland China experienced 500% growth between 2009 and 2011. In 2011, the Chinese auction market surpassed all other countries in the world. Even in 2014, the year after the MOU’s first 5-year renewal, the fastest growing import into China was art, antiques, and collector items, which increased at a staggering 2281% rate.

 Clinton Howell of CINOA said of the proposed tariffs that, “Because the flows of antiques are currently into China, and not out of China, the measures will divert these existing old objects from the United States to other markets, such as Beijing or London or Paris. The main beneficiary will consequently be Chinese buyers, dealers and auction houses.”


*Article reprinted with permission from
Cultural Property News

ATADA Legal Committee Report - July 2018

 By Hoteen Klah 1867–1937 [Public domain], via Wikimedia Commons

By Hoteen Klah 1867–1937 [Public domain], via Wikimedia Commons

The busy show season is a time for ATADA members to be especially alert to legal issues. Please help others to be aware the legal rules and ethical guidelines that make for a responsible art market.

The pertinent ATADA Bylaws state as follows:

  • The Members of ATADA undertake not to purchase or sell objects until they have established to the best of their ability that such objects were not stolen from excavations, architectural monuments, public institutions, tribal communities, or private property.
  • ATADA shall work respectfully with tribal communities regarding the voluntary return of legally collected items to the tribes. ATADA supports the voluntary return of items known to be of important current, sacred, communal use to the Native American tribal communities from which they came, through the ATADA Voluntary Returns Program and other voluntary projects.
  • The Members of ATADA undertake not to acquire, display, or sell items known to be of important current sacred, communal use to Native American tribal communities. The ATADA Board shall establish guidelines with respect to specific items deemed of important current sacred, communal status and make those guidelines available to all ATADA members.
  • ATADA does not regard items made for commercial or individual use by Native American artisans as sacred or ceremonial, regardless of age.

See the ATADA Guidelines Regarding the Trade in Sacred Communal Items of Cultural Patrimony.
atada.org/bylaws-policies/

Why did ATADA establish internal guidelines? First, it’s the right thing to do. Second, responsible business behavior makes for a safer, more secure marketplace, and gives consumers the confidence they need to invest. Checking the provenance of objects and asking for their ownership history – in writing - is good business practice and the key to due diligence. No one, collector or dealer, wants to potentially spend years of their lives and hundreds of thousands of dollars defending themselves against a charge of trading in a dodgy object – simply because they did not take the time to investigate it.

The ATADA legal team is proud of its accomplishments. If ATADA was not working hard to protect your interests in Washington, then US Customs could today be asking every foreign tourist coming home from vacation to prove that their Indian art purchases weren’t sacred items. US museums would be worrying that there was a new, completely open-ended ‘standard’ for tribal claims outside of NAGPRA.

We wish we could be spending our energies urging the House and Senate to take positive steps for tribes by funding cultural education, building awareness (and building tribal Chapter Houses for the safety and preservation of ceremonial artifacts). These are positive solutions – and we make that case with legislators each time we meet. Unfortunately, those sensible goals require funding from an unwilling Congress. Instead, we’ve had to fight back against ill-considered legislation that will negatively impact the art trade, damage a vital industry that is key to the Southwestern tourist economy, and harm cultural life as a whole in the United States. Here are some of the pending bills and agreements that affect art collecting and the trade:

 

  • STOP

In May, the ATADA board met in Washington DC in order to meet with legislators to discuss the impact of the 2017-2018 Safeguard Tribal Objects of Patrimony Act (STOP), S. 1400 and H.R.3211. ATADA has outlined the bill’s flaws many times, through testimony and direct contacts with legislators –how it discourages all trade in Indian art, harming artisans and local economies, will destroy value in legally-owned private property, and has a built-in lack of due process that makes it illegal to export objects without identifying what those objects are, and places the burden of proof on individuals to show objects are lawfully traded.

Board members Bob Gallegos, Kim Martindale and John Molloy met with eight legislative offices in person in order to bring home their objections to the STOP Act. They also raised museums’ concerns that STOP would undermine museum protections under NAGPRA. New Mexico Congressman Steve Pearce personally discussed innovative alternatives to STOP with the ATADA board members.

ATADA remains convinced that the best way forward is to work with legislators, tribal communities, collectors, art dealers and auction houses to find alternatives to STOP that will permit continued commerce in legal items not subject to ARPA or NAGPRA. 

Almost all of the legislative staff were responsive. All expressed appreciation for ATADA’s landmark Voluntary Returns Program, which has turned out to be more effective than any federal enforcement actions. ATADA remains focused on bringing realistic, practical solutions to the table, rather than having a politically expedient but unworkable solution forced on collectors and the trade. However, the future of STOP may have more to do with how November elections shift power in Washington than on finding a positive way forward for all constituencies.

ATADA will continue its campaign to raise awareness in Washington of the dangers of STOP, and to inform and educate the public. In June, ATADA Board Member Kim Martindale coordinated bringing letters to legislators from six owners of major Indian shows opposing STOP. Keeping your Senators and Representatives informed is essential!

 

  • MONEY LAUNDERING

 via Wikimedia Commons

via Wikimedia Commons

An anti-money laundering bill now in the U.S. Senate is specifically directed at the art trade. Congressman Luke Messer of Indiana says that HR 5886 is intended to “reduce international money laundering and crack down on terrorist organizations like ISIS.” Never mind that there is no evidence that a single artwork sold in the US has had any connection with terrorist activity.

HR 5886 would apply the Bank Secrecy Act to dealers in art and antiquities. Regulation could require U.S. art and antique dealers with as little as $50,000 in annual purchases/sales to report transactions to the Department of the Treasury Financial Crimes Enforcement Network (FinCEN), to collect personal information from clients, and comply with a variety of burdensome regulations.

Art businesses subject to FinCen anti-money laundering (AML) requirements would be required to establish an AML Program and:

  • File IRS/FinCEN Form 8300, Form TD F 90-22.13, and Form 105 to establish an AML program.
  • Appoint a Compliance Officer for their business responsible for meeting FinCen AML regulations and rules
  • Provide ongoing AML training for employees
  • Pay for independent testing to monitor AML program and compliance
  • File suspicious activity reports (SARS)

If a business is non-compliant, the consequences could include closure of the business’ bank accounts and even imprisonment.

The regulations for the art industry are not specified in the bill, but a release from Congressman Messer’s office suggests that they will be similar to those applied to the category of dealers in precious metals, stones, and jewels.

ATADA has joined other arts organizations, including CINOA, the largest global art and antiques trade association, in opposing HR 5886.  ATADA has submitted written comment to the House Financial Services Committee contesting the addition of art dealers to FinCEN requirements.

For more, see: Letter from ATADA to Chairman Hensarling, Financial Services Committee, U.S. House of Representatives
https://atada.org/legal-issues/ 

Also see: Update: Art Trade Reacts to Threatened Bank Secrecy Act
https://culturalpropertynews.org/congressman-wants-bank-secrecy-act-to-regulate-art-trade/

 

TARIFFS

 Chang Hsüan, Women making textile, Indian ink and color on silk, Boston Museum of Fine Arts, Wikimedia Commons.

Chang Hsüan, Women making textile, Indian ink and color on silk, Boston Museum of Fine Arts, Wikimedia Commons.

One of the more bizarre episodes in the recent pursuit of tariffs is a plan to impose duties on Chinese antique art and artifacts. The Office of the U.S. Trade Representative is reviewing proposed tariffs on “Collections and collectors’ pieces of zoological, botanical, mineralogical, anatomical, historical, archaeological etc. interest” under HTS Heading 1905, and under HTS Heading 9706, “Antiques of an age exceeding one hundred years.”

One thing that makes this proposal strange is that tariffs on antiques will not punish China. They will actually enable the Chinese government to strengthen China’s near monopoly on Chinese antique and ancient art. The proposed tariff on Chinese art only punishes U.S. collectors, art businesses, and art museums – not the Chinese government. Ten years ago, the Chinese government asked the U.S. to impose import restrictions on art and antiques up to 1912. This request was granted, but only for art up through the Tang period. China has since used these U.S. restrictions to build its art business into the largest in the world, and to expand its domestic market in the same antiquities that currently cannot be imported from China into the U.S.

Placing tariffs on art, antiques, and other cultural materials would also be a major trade policy change for the United States. Almost 90 years ago, Congress exempted antiquities and art objects made before 1830 from duty in order to encourage the free flow of artistic and cultural materials into the U.S. under the U.S. Tariff Act of 1930. A 1966 law confirmed the antiques exemption and added as exempt ethnographic items that were 50 years old or older. Ever since then, books, art, collectibles, and antiquities have entered the U.S. duty free. The proposed China tariff would change that U.S. cultural policy for the first time. 

For more, see: Proposed Tariffs on Chinese Art Will Expand China’s Monopoly
https://culturalpropertynews.org/proposed-tariffs-on-chinese-art-will-expand-chinas-art-monopoly/

 

STATE DEPARTMENT PURSUES FOUR RENEWALS OF BLANKET FOREIGN IMPORT RESTRICTIONS AND NEW AGREEMENTS WITH ECUADOR AND ALGERIA 

In May 2018, the State Department’s Cultural Property Advisory Committee heard testimony on the renewal of the U.S.-China Memorandum of Understanding mentioned above. It also considered a new agreement on cultural property with Ecuador.

On July 31, 2018, the Cultural Property Advisory Committee (CPAC) at the Department of State will review two more proposed renewals of agreements to bar entry to the U.S. of “cultural property” from Bulgaria and Honduras. CPAC will also review a new request from the People’s Democratic Republic of Algeria. The objects proposed to be barred from import from these three countries are comprehensive. The import restrictions cover a period extending over 9000 years, and include everything from coins to manuscripts, beads and even common tools such as “axes, hoes, picks, and harpoons.”

Right now, there are 20 foreign countries whose art and artifacts are subject to comprehensive blockades. Belize Bolivia Bulgaria Cambodia China Colombia Cyprus EgyptEl Salvador GreeceGuatemala Honduras Italy LibyaMali Nicaragua , and Peru have bilateral agreements that once implemented, have been renewed again and again every 5 years, so that some, such as El Salvador, have been in place for over 30 years. Iraq (2008) and  Syria (2016) are currently subject to legislative “emergency actions.” (Mexico is covered in another longstanding treaty.)

Proceedings at CPAC are extremely secret. Months after a CPAC review, the American public and US art dealers, auction houses, and museums will learn what the import restrictions will be, through publication in the Federal Register. The restrictions will be effective from that day of first publication for 5 years. Based on the past record of the CPAC and its State Department administrators, the restrictions on artifacts from every country are likely to be extremely broad and renewed every five years through the foreseeable future.

ATADA condemns looting of any kind, from any country, but it does not support overbroad restrictions on the legitimate trade. Blanket restrictions on art from entire regions harm the U.S. public interest while doing nothing to preserve sites. ATADA has stood up for U.S. citizens’ access to art from around the world, and against agreements with source countries that don’t protect their own artifacts.

ATADA is particularly concerned about U.S. support for foreign governments’ absolute control of the cultural heritage of minority peoples and indigenous populations. ATADA is working to alert Congress to abusive U.S. agreements that have given control over the historical records and tangible heritage of exiled Jewish and Christian communities to oppressive regimes in Libya, Iraq, Syria, and Egypt; it has objected to Middle Eastern governments’ claims to all of nomadic Saharan Tuareg and Berber artifacts. ATADA has also demanded that the U.S. cancel cultural property agreements with China, based on its destruction of Tibetan and Uyghur religious sites and monuments.

See: ATADA’s testimony on Algeria.
https://atada.org/legal-issues/ 

See also:
CPAC – building a Wall Against Art
https://culturalpropertynews.org/cpac-building-a-wall-against-art/

Will U.S. Embargo on Art of China and Tibet Be Renewed? 
https://culturalpropertynews.org/testimony-on-renewal-of-us-embargo-on-art-of-china-tibet/

 

INTERNATIONAL TRIBAL ART AND ANTIQUITIES LEGISLATION

Several ATADA legal committee members have been working with European art dealer organizations and art fairs to combat misinformation that has triggered pending European Commission legislation. These pending EU regulations would restrict import and export of items over 250 years of age by requiring either (1) documentation of lawful export from a source country or second country in which the object has been for a lengthy period (the majority of countries have no such permitting regimes) or (2) a sworn affidavit from the exporter that an item was legally exported. The requirements would depend upon the type of object being imported or exported; antique books and ‘archaeological’ materials are among the items for which proof of legal export would be required. A major problem is that an importer might have no way to know if an item was legally exported, since most cultural items have been in circulation for decades among multiple owners.

Market representatives have presented independently-verified evidence showing that the assumptions on which the proposed EU regulations are premised are wrong. The cost and delay caused by the regulations could seriously damage legitimate art and antique markets, which contribute about €17.5 billion to the EU economy, and provide employment for over 350,000. The six-month delay for import license approval for artworks would keep foreign dealers from attending EU art fairs.

The European Commission’s premise for requiring new regulations was the claim that there was a massive, multi-million euro (or even multi-billion euro) trade in illicit antiquities from the war zones of the Middle East. However, the most recent World Customs Organization’s latest Illicit Trade Report (2016) shows no seizures at all in Western Europe (other than Switzerland) of any looted cultural property associated with the Middle East.


Important Note: ATADA cannot answer member’s legal questions, and nothing in this article or on the ATADA website constitutes legal advice. If you have a legal question, you should contact your attorney for advice.

Proposed tariffs on Chinese art will have a negative impact on the U.S. market

 Chang Hsüan, Women making textile, Indian ink and color on silk, Boston Museum of Fine Arts, Wikimedia Commons.

Chang Hsüan, Women making textile, Indian ink and color on silk, Boston Museum of Fine Arts, Wikimedia Commons.

The Office of the United States Trade Representative (USTR) has included artwork, antiques and historical/archeological collections in the proposed 10% retaliatory tariff on an additional $200 billion in Chinese goods.  

Artworks and antiques can be found at the end of the list of items covered by the tariff. 

As noted in the Cultural Property News article, Proposed Tariffs on Chinese Art Will Expand China’s Art Monopoly (July 19, 2018), almost all of the  artwork from China from the Paleolithic through the Tang period is already covered by U.S. import restrictions. 

From the article:

The restrictions are claimed by China to be for the protection of ancient archaeological sites, but in fact, they reinforce China’s monopoly on Chinese art. Global Heritage Alliance Executive Director Peter Tompa states, “A tariff will only drive more Chinese artifacts back to China, which is exactly what the State Department is doing with its import restrictions.”

These actions will certainly have a negative impact on the U.S. art trade, while benefitting the Chinese government, who have requested import restrictions on art and antiques, not punishing them as intended. 

Please read the full article on the Cultural Property News website for more information and insight on this issue.  

What can you do? Make your voice heard! 

The USTR is requesting comments on the proposed list of imports. Comments must be received by July 27, 2018. 

The USTR prefers electronic submissions made through the Federal eRulemaking Portal.

Insert the docket number USTR-2018-0026 in the Search bar. A new window will open. Click the “Comment Now” button to submit your comment.

There are also instructions on how to submit paper testimony on the request for comments page.

Legislative Alert: HR5886 - Bank Secrecy Act to apply to Art & Antiquities Dealers

 By U.S. Treasury Dept. [Public domain], via Wikimedia Commons

By U.S. Treasury Dept. [Public domain], via Wikimedia Commons

Legislation (HR 5886) has been introduced in the House of Representatives which calls for the Bank Secrecy Act to apply to Art and Antiquities dealers.

Under this legislation, U.S. art and antique dealers with as little as $50,000 in annual purchases/sales would be required to report international transactions and collect and report client’s personal information.  If a business is non-compliant, the consequences could include closure of the business’ bank accounts and even imprisonment.

More information about this legislation and the potential negative impacts it could have on the art market can be found on the Cultural Property News website. 

Legal Briefs - Two Brief Observations & NAGPRA Updates

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

by Ron McCoy


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

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

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

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

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

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

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

 

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

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

 

Two Chippewa Wooden Pipe Stems:
Sacred Object

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

 

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

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

 

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

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

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

 

Quinault Tamahnousing Figures:
Sacred Objects

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

 

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

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

 

Comanche Peyote Fan:
Sacred Object

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

 

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

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

 

Anishinaabe (Ojibwe/Chippewa) Midewiwin Materials:
Sacred Object

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

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

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

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

 

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

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

 

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

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

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

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

 

Click for Endnotes

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

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

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

[4] Knight, “Something’s Missing.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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