Legal Briefs - August 2020

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

by Ron McCoy

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

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

Hoa Hakananaia’a at the British Museum

Photo by: James Miles / CC BY-SA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ENDNOTES

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

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

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

[4] Ibid.

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

[6] Savoy-Sarr Report, 1.

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

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

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

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

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

[16] Ibid.

[17] Ibid.

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

Bill That Will Block Native Art Exports Approved By Senate Committee

STOP Act Update - August 2020

On June 10, 2020, the Senate Committee on Indian Affairs took written testimony on the Safeguard Tribal Objects of Patrimony Act of 2019 (STOP Act), S. 2165. ATADA President, Kim Martindale submitted testimony to the committee, a copy of which can be found here: https://atada.org/atada-blog/2020-stop-act-testimony
 
On July 29, 2020, the Senate Committee on Indian Affairs took just three minutes to vote on the Safeguard Tribal Objects of Patrimony Act of 2020 (STOP Act), S. 2165, a substitute for the bill commented on in the testimony submitted on June 10th. The text of the amended bill was not made public before the hearing, but its substance remains largely the same. The vote passes the amended version of the bill on to the full Senate for consideration. Key provisions are listed below. In most respects, the serious negative consequences remain the same as in the version of the STOP act introduced in 2019.

ATADA remains committed to working with all parties to restore sacred and ceremonial items to the tribes while respecting individual’s constitutional rights. Unfortunately, the substitute does little to address the basic flaws in S. 2165, beyond providing an essential mens rea standard for the export prohibition. In fact, the substitute bill contains almost all of the flaws found in the base bill.

The newly revised version of S. 2165:


1. Undermines constitutional protections guaranteed to American citizens, placing the burden of proof on the applicant, not the government and reversing the American concept of innocent until proven guilty. It places the burden of proof on exporters challenging seizure to show that an item IS lawfully owned, an impossible task when objects have often circulated for more than one hundred years in trade.

2. Includes a partial mens rea provision requiring knowing violation. One aspect of the revised bill is an improvement on past versions, because a criminal violation exists when an exporter knows that the object was acquired in violation of US law, or because the exporter knowingly failed to follow export permit procedures. However, S. 2165 will subject U.S. citizens and visiting tourists to felony charges, fines, imprisonment, and loss of property based on a vague standard that they in “the exercise of due care should have known” that an object was “unlawfully taken, possessed, transported or sold” “in violation of any Federal law or treaty.”

3. Potentially restricts commercially made and legal items as tribal heritage. Affects objects of any value, even $1, and both new objects and objects in commercial circulation more than 100 years.

4. Sets no time-limit for review and gives limitless scope to the objects that cannot be exported. Fails to utilize an established Customs system with clear rules and substitutes a cumbersome one where criteria will be secret, known only to Tribes.

5. Excludes from possible tribal claims only items made “solely” for commercial purposes, when virtually ALL trade in Native American items for 140 years has been in items made for Native Americans for themselves as well as for sale. The bill then grants Tribes the ability to halt exports even of solely commercial items if Tribes challenge this presumption.

6. Explicitly allows evidence to be deleted from government records at the request of tribes. S. 2165’s new ‘Deletion from Database” provision provides that on request by an Indian Tribe or Native Hawaiian organization, the Secretary shall delete an export certification application from the database.

7. Effectively bypasses NAGPRA and ARPA processes for exporting museums and institutions.

8. Provides $3,000,000 in funding for actions under the bill.

We continue to monitor the status of this proposed legislation. A date for consideration by the full Senate has not been set, nor has a corresponding substitute bill been approved by the House at this time.

In the near future, we will be providing more detailed information on how to contact your representatives to express opinions about this proposed legislation.  

Sincerely,
The ATADA Board of Directors

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You can read the text of S.2165 by clicking below.

ATADA Written Testimony
June 10, 2020

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ATADA Written Testimony on STOP Act of 2019

On June 10, 2020, ATADA submitted the following written testimony to the Senate Committee on Indian Affairs regarding the Safeguard Tribal Objects of Patrimony Act of 2019 (STOP Act), S. 2165.

The written testimony can be found in full below. Click here to download a copy of the testimony.

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ATADA,[1] Kim Martindale, President

 Testimony submitted to the Senate Committee on Indian Affairs on
The Safeguard Tribal Objects of Patrimony Act of 2019 (STOP Act), S. 2165[2]
June 10, 2020

This testimony is submitted on behalf of ATADA, the Authentic Tribal Art Dealers Association. ATADA is a professional organization established in 1988 in order to set ethical and professional standards for the art trade. Its membership includes hundreds of antique and contemporary Native American and ethnographic art dealers and collectors, art appraisers, and a strong representation of museums and public charities across the U.S.

ATADA is engaged in intensive community educational work to build understanding of Native American concerns over the loss of cultural heritage. In 2016 and 2017, ATADA adopted Bylaws forbidding trade in items in current ceremonial use,[3] established Due Diligence Guidelines to protect buyers and sellers,[4] and began public education programs[5] working together with tribal representatives.

ATADA has built a highly successful, community-based Voluntary Returns Program for lawfully owned ceremonial objects. The Voluntary Returns Program has brought several hundred important ceremonial items from art dealers[6] and collectors to tribes at no cost since it began in 2016.[7] The vast majority of sacred items that ATADA has returned to tribes have come from collections built 30-70 or more years ago, prior to passage of NAGPRA in 1990. NAGPRA was clearly a wake-up call to collectors and art dealers as well as for museums. It remains the most effective federal tool for ensuring that sacred items are returned to tribes.

ATADA appreciates the opportunity to assist in promoting legislation that protects tribal ceremonial and sacred items, strengthens enforcement of existing laws consistent with citizens constitutional rights and facilitates legitimate trade in legal items. However, the Safeguard Tribal Objects of Patrimony Act of 2019 (STOP Act), S. 2165, fails on all these counts.

This is the third version of STOP introduced since 2016. It replicates and even expands many provisions rejected in prior versions of the bill. Like earlier iterations of STOP, this bill will embargo lawfully owned Indian artifacts, will fail to provide notice to the public of what Indian objects are prohibited from export, will impose burdensome export requirements on very low value items, and allow seizure without constitutional due process.

For all the reasons set forth below, ATADA believes that S. 2165, will not achieve its primary goal—the return of important cultural objects to Native American tribes, Alaska Natives and Native Hawaiian organizations. It is constitutionally, procedurally, and practically flawed.

1. The STOP Act undermines constitutional protections guaranteed to American citizens, placing the burden of proof on the applicant, not the government, and reversing the American concept of innocent until proven guilty.

The STOP Act does not require “knowing” wrongdoing for there to be a crime. It does not require proof of violation of NAGPRA, ARPA, or other U.S. law. Export restrictions can be placed on lawfully-owned objects.

The STOP Act provides for criminal penalties of up to ten years’ imprisonment for exporting lawfully owned items without a permit. Despite these heavy penalties, due process is absent. The STOP Act places the entire burden of proof on the exporter, even if the exporter is a tourist.

STOP’s tribal review process for issuing export permits is secret. It is not subject to Freedom of Information Act requests. Evidence from tribes on which seizure was based would be withheld, severely limiting opportunities to appeal seizures or refusal to export and denying future access to information for the future.

2. The STOP Act potentially restricts commercially-made and legal items as tribal heritage.

Native Americans have been making ceramics, carvings, jewelry, and weavings for commercial sale for literally hundreds of years.[8] There are hundreds of thousands of Native American antique objects that have circulated in the market for decades, many of which are now said by tribes to to be tribal ‘cultural heritage.’[9] Even Indian art made for sale would be subject to restrictions and secret tribal review. A receipt from a Native American artist does not guarantee that an object is exempt from review and possible seizure.

3. The STOP Act sets no time-limit for review and gives limitless scope to the objects that cannot be exported.

The STOP Act has no time limit for tribal review. There is no list of forbidden items for export.  

STOP provides only for a general description of objects that may be unlawful to export. The documentation burden and delay of STOP’s proposed tribal review system would be a de-facto export ban as the work would not be justified for low value items.

Legitimate business relationships with international partners and art fairs will be curtailed due to concerns over unlimited delays. The lack of a clear definition of what may be exported without a permit will result in the seizure of objects exported in good faith.

4. The STOP Act does not enable self-certification.

A self-certification process under U.S. law would never be a free ride as a false statement would lead to imprisonment, a significant safeguard. ATADA endorses self-certification to ensure a paper trail for exports and to provide true accountability.

5. The STOP Act will harm American small businesses exports, Native and non-Native alike.

ATADA is committed to helping to build markets for Native and non-Native American small businesses and Native craftspeople. The STOP Act’s time-consuming and potentially expensive export process (for which an unstated fee will be assessed) will eliminate small scale exports and place an additional burden on Indian artisans as well as art dealers.

Art and craft production is important in the economies of tribal nations across the U.S., including Native Alaskan sculptors, Northwest Coast weavers and carvers, California basketry-makers, Cherokee Nation beadworkers, and craft marketers from the Plains to the Penobscot people of Maine and others in the Northeast. These and many others are working to build local artist markets in their communities; they are also represented together with hundreds of Native Americans artists from Southwestern tribal nations in galleries and fairs in New Mexico. All these creations of Native artisans are potentially subject to an export ban given The STOP Act’s failure to specifically define what items require certification.

Travel restrictions have already decimated the hopes of thousands of Native artisans dependent on summer sales for the majority of their annual earnings. Imposing export barriers to businesses and tourists alike would threaten the ability rebuild sales venues for Indian art.

6. The STOP Act will harm both U.S. and foreign tourism.

The STOP Act requires tourists as well as commercial exporters to submit photos and forms and obtain permissions for exports as low as $1 value. These requirements will be impossible for most tourists to meet and will taint the domestic market with concerns that buying Indian art is ‘wrong.’ Too broad or too vague criteria would trap many foreign tourists, inevitably resulting in thousands of inadvertent, innocent violations and seizures for technical errors rather than criminal acts.

To give just one example of STOP’s potential for negative impact, the first international news article about seizure of an ordinary object from a tourist for failing to meet STOP’s vague export permitting requirements would seriously harm international tourism to important tourist destinations, such as Santa Fe’s almost 100-year-old Indian Market, which ordinarily draws about 100,000 tourists to New Mexico each year.

7. Consumer confusion will further damage tribal markets.

Public confusion about laws regulating trade can result in unintended harm. A case in point is the federal law banning trade in elephant ivory, which has seriously impacted Native Alaskan craftsmen who legally carve marine mammal ivory.[10] Many Native artisans depend on sales of carved marine mammal ivory, particularly walrus, to pay for necessities like fuel oil through the winter. The federal elephant ivory ban has reduced Native carvers’ earnings by as much as 40%. As Native carver Dennis Pungowiyi explained to Arctic Today, negative perceptions have grown among his customers who believe that owning a walrus ivory sculpture might be illegal, even though it is legal under Alaskan and federal law.[11]

Several U.S. states have gone far beyond federal regulations and passed laws prohibiting trade in all ivories.

The STOP Act’s overbroad, vague provisions would similarly taint other Native artworks with potential illegality and raise the concept that ownership of Native art was harmful to cultural integrity and public interest.

8. The STOP Act provides no funding for a system of review, and no guidance as to how such a system should be organized.

The STOP Act leaves the Department of the Interior to create and fund a system of tribal review from scratch. The system must cover virtually all exported Indian art and artifacts (many of which cannot be identified to specific tribes) from every federally recognized tribe and Hawaiian Native organization. Yet five years after first asking the federal government to establish this system, no tribe has come forward with a plan for coordinating or organizing it. 

9. STOP fails to utilize the existing U.S. Customs’ AES export reporting system agreed to by tribes in 2018, sets no low-value threshold.

The AES system used for all commercial exports of $2500.00 or more provides an adaptable online system for tracking exports. Using this $2500.00 threshold would already be far more restrictive than any import/export system for art and artifacts currently in use in market nations.

To compare, in early 2019, the European Parliament enacted legislation requiring a certification system for art imports. Although the EU already has harmonized Customs systems, the European Parliament estimates that it will take 5 years to build a permitting system to manage this. The new EU system requires only a self-certification from importers for most types of artworks, including ethnographic objects such as Native American art. For these, it requires self-certification only for objects over 200 years old AND over 18,000 euros in value.[12] Even so, the burden on art businesses is expected to seriously damage the European market and harm international art fairs, an increasing segment of the art market.[13]

How long would be needed for almost 600 tribes and the Department of the Interior to build an independent system for export permits? The only realistic approach is to utilize an already existing system and to limit the items covered as much as possible in order not to overburden it. ATADA hopes that tribes will join it in seeing the benefit of having a functional system that can start almost immediately rather than confront all the hurdles a new system would create.

10. The STOP Act is bad public policy that will undermine NAGPRA and harm U.S. museums.

U.S. museums and educational institutions that receive any federal funding are already subject to strict NAGPRA rules of compliance that enable tribes to claim museum-owned Native American objects. The STOP Act ignores NAGPRA criteria that an object be a ceremonial or sacred object at the time that it left tribal hands. The STOP Act treats NAGPRA’s definition of “cultural items” as one category when NAGPRA has five separate categories of cultural items with separate statutory definitions.

NAGPRA returns are dealt with in a case-by-case process between museums and tribes. Under STOP, tribes have no need to show affinity or substantiate that an object may be claimed.

The STOP Act makes it illegal to export “cultural items” – a term that includes items that are not subject to NAGPRA repatriation. Export by museums for loans or traveling exhibitions of items that were legally acquired decades ago could put museums in violation of the STOP Act.

Objects not subject to NAGPRA could be seized if claimed by a tribe.

11. STOP abandons earlier progress on finding working solutions to preserve heritage.

During the last Congress, our efforts to produce a version of STOP that works led ATADA to work with the Acoma Pueblo and their representatives and produce legislation that banned the export and facilitated the return of illegal sacred and ceremonial items: H.R. 7075, the “Native American and Native Hawaiian Cultural Heritage Protection Act” of 2018.

H.R.7075 accomplished these objectives by grafting an export certification system for Native American items onto the existing Department of Commerce AES system and permitting self-certification for lower value items, insuring speedy and effective implementation, operation, participation and enforcement of an export certification regime without infringing on individual’s constitutional rights.

Despite the burden that H.R. 7075 placed on American businesses, ATADA approved these restrictions in order to assist tribes to achieve their goal of preserving ceremonial and sacred items in the U.S. Regrettably, the STOP Act fails to incorporate compromises agreed to in H.R. 7075.

12. Conclusion.

The STOP Act represents the first time in the United States’ entire history that it has sought to restrict export of art or cultural heritage. Restrictions on any U.S. cultural heritage contravenes long held principles that have emphasized the free trade of cultural property for the public good, and Congress should be wary of enacting such a major statutory change, especially one whose breadth and scope is unlimited and shorn of due process protections.[14]

The problem of loss of tribal cultural heritage will not be solved by passing constitutionally suspect legislation or creating a new, unwieldy, and expensive federal bureaucracy. There are relatively few objects in private hands that actually meet the criteria set forth under NAGPRA or ARPA as objects unlawful to trade. Even fewer are ever exported. The GAO reports for previous versions of STOP counted the total overseas sales of Native American objects (sometimes twice) without identifying any items as actually sold in violation of ARPA, NAGPRA or other US law.

ATADA is strongly supportive of the goal of returning objects necessary for tribal spiritual activities, and of halting all illegal trade in the U.S. as well as abroad. ATADA’s due diligence requirements for dealers, combined with the ATADA Voluntary Returns program, which has brought hundreds of important objects back within just a few years, are models for best business practices and for community-based return programs.  

ATADA supports taking steps now to safeguard objects for tribal use. These should include significant federal investment in programs located on tribal lands and the building of safe, secure chapter houses to ensure that cultural objects remain under the control of tribal governments or tribal elders.

Any law passed limiting export should protect U.S. citizens from constitutional abuse by ensuring due process and enabling Freedom of Information Act requests. This requires:

• Adopting clear definitions of what can and cannot be exported.

• Applying CAFRA provisions to protect unconstitutional and unwarranted seizures.

• Exclusions for low value items and tourist purchases.

• Self-certification by business to create accountability and enable tracking of exported items.

• Limiting export prohibitions to items actually deemed sacred.

ATADA wishes to emphasize its willingness to work together with all interested parties to create legislation that will truly protect important sacred objects and return them to tribes.

ENDNOTES

[1] ATADA, the Authentic Tribal Art Dealers Association, www.atada.org. email director@atada.org,  PO Box 45628, Rio Rancho, NM 87174.

[2] This testimony also pertains to the current House version of the Safeguard Tribal Objects of Patrimony Act, S. H.R. 3846. 116th Cong. (2019)

[3] ATADA Bylaws, Article X, Trade Practices, Ethics, And Guarantees. https://www.atada.org/bylaws-policies/

[4] ATADA Bylaws, Article XI, Due Diligence Guidelines. https://www.atada.org/bylaws-policies/

[5] For example, the ATADA Symposium, Understanding Cultural Property: A Path to Healing Through Communication. May 22, 2017, Santa Fe, NM.

[6] ATADA Bylaws, Article X, ATADA Guidelines Regarding the Trade in Sacred Communal Items of Cultural Patrimony. https://www.atada.org/bylaws-policies/

[7] A Journey with Ceremonial Objects, https://committeeforculturalpolicy.org/a-journey-with-ceremonial-objects/

[8] Native American artists created outstanding works of art for sale and trade even before the time of first contact, trading with indigenous American peoples in the Plains and the far West and sending goods to exchange for Mayan and Aztec products southward into present-day Mexico. Contact with the Spanish conquistadors and the settlers that followed them led to development of many Indian arts. To give just one example, Navajo weaving is a traditional art, but it was not until the introduction of sheepherding after contact that there was a large scale expansion of trade in woven goods, blankets and mantas, made both for commercial and domestic use.

[9] For example, American auction houses have recently received ‘cultural heritage’ claims for hand-carved and painted wooden kachinas originally sold by the tribal artist-makers in the 1990s on eBay.

[10] Zachariah Hughes, Lower 48 ivory bans hit Alaska Native carvers, Alaska Public Media, November 7, 2016. https://www.alaskapublic.org/2016/11/07/lower-48-ivory-bans-hit-alaska-native-carvers/

[11] Yereth Rosen, Some U.S. state ivory bans affect Alaska Native carvers. A new federal bill aims to override them, Arctic Today, October 24, 2017, https://www.arctictoday.com/some-u-s-state-ivory-bans-affect-alaska-native-carvers-a-new-federal-bill-aims-to-override-them/

[12] EU Regulation Curtailing Import of Art & Antiquities Now Law, Cultural Property News, June 16, 2019, https://culturalpropertynews.org/eu-regulation-curtailing-import-of-art-antiquities-now-law/

[13] Id.

[14] The U.S. has longstanding import policies encouraging the importation of modern and antique artworks, manuscripts, books, scientific, and other cultural objects by making such imports free of duty. The Educational, Scientific, and Cultural Materials Importation Act of 1966, Section 1(b) provides that “The purpose of this Act is to enable the United States to give effect to the Agreement on the Importation of Educational, Scientific and Cultural Materials… with a view to contributing to the cause of peace through the freer exchange of ideas and knowledge across national boundaries.” The Agreement on the Importation of Educational, Scientific and Cultural Materials was opened for signature at Lake Success, on November 22, 1950, 131 U.N.T.S. 25 (1950); The Educational, Scientific, and Cultural Materials Importation Act of 1966, Pub. L. No. 89-651, 80 Stat. 897 (1966). Even earlier, in the U.S. Tariff Act of 1930, 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. The exemption from duty on antiques and archaeological materials is under the Harmonized Tariff Schedule of the United States Revision 7, ch. 97, § XXI  (2019), (Works of Art, Collectors’ Pieces and Antiques, Subheading 9705.00.00 to 9706.00.00).

May 28, 2020 is the Deadline for Public Comment on the Chaco Cultural Region Management Plan

- This article was originally published April 6, 2020 on the Cultural Property News website and is reprinted here by permission.

Chaco Cultural Region: Public Comment on Management Plan

Management plan and size of protected area from oil, gas, and mineral extraction in question.

Bonnie Povolny - April 6, 2020

The federal government is now seeking public comment on the future of one of the most significant cultural sites in the United States, the Chaco Culture Historical Park in northwestern New Mexico. In late February 2020, the Bureau of Land Management (BLM) and Bureau of Indian Affairs (BIA), announced proposed revisions to the park’s management in a draft Farmington Mancos-Gallup Resource Management Plan Amendment and Environmental Impact Statement. These are the first revisions put forward by the agencies since 2003. The public comment period ends on May 28, 2020.

Pueblo del Arroyo Ancestral Puebloan great house ruins in Chaco Canyon, New Mexico, photo by James Q. Jacobs, 12 April 2007, Creative Commons Attribution-Share Alike 3.0 Unported license.

The designated Chaco Culture Historical Park was at the center of a vast civilization in what is now the American Southwest – a site of the Ancestral Puebloan culture. Chaco Canyon still holds the remains of grand kivas and great houses – Pueblo Bonito, Una Vida, Peñasco Blanco and others. The Hopi, Zuni, Navajo and Pueblo peoples of the Four Corners region (where Utah, New Mexico, Colorado, and Arizona meet) all claim ancestral and spiritual ties to Chaco and its connected communities. The most important sites to archeologists were built in the Pueblo II and Pueblo III eras, from about 900 to 1350 AD.

In May of 2019, U.S. Interior Secretary David Bernhardt announced a yearlong moratorium on oil and gas lease sales within 10 miles of Chaco Culture National Historical Park. This move was followed by the passage by the House of Representatives of H.R. 2181, the Chaco Cultural Heritage Area Protection Act in October. The Act will withdraw a ten-mile radius around the park from development – 316,076 acres of federal land rich in oil, natural gas, coal and other minerals. A Senate version, S. 1079, is currently in a holding pattern, still awaiting a vote in the Senate Committee on Energy and Natural Resources.

Increased oil and gas drilling close to the park had sparked concern among New Mexico and Arizona tribes and pueblos, as well as the general public, that encroachment would impact archeological and ceremonial sites in the region. Environmental and archeological groups have voiced concern that energy extraction development so close to the park would impact its status as a World Heritage site and International Dark Sky Park.

In January, the Navajo Nation Council withdrew their support for the ten-mile buffer and voted to approve a five-mile buffer zone instead, stating that the reduced size would allow Navajo land owners greater rights to enable development on their lands.

According to New Mexico’s congressional delegation, the Navajo Nation Council’s decision was based upon a misunderstanding of how the buffer zone would impact Navajo landowners. A joint statement by Senators Tom Udall and Martin Heinrich and Representatives Luján, Torres Small and Haaland pointed out that the Chaco Cultural Heritage Area Protection Act does not affect tribal or private lands or the mineral rights of an Indian tribe or tribal member to trust land or allotment land.

The All Pueblo Council of Governors, archaeological organizations, and environmental groups continue to support a ten-mile buffer, saying that reducing it would leave more than twelve important ancient Chacoan communities, including many more individual sites, vulnerable to destruction by development. A video of the viewscape of the Pierre’s Place Outlier is available; it is the largest of the Chacoan communities in the ten-mile buffer zone and located at its outer edge.

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National Park Service map for Chaco Culture National Historic Park.

Meanwhile, the Bureau of Land Management and the Bureau of Indian Affairs, both agencies under the Department of the Interior, are requesting comments from the public on the Environmental Impact Statement and on whether a five-mile Federal buffer around CCNHP should be considered.

The draft Resource Management Plan Amendment, Environmental Impact Statement and supporting information are available online at: https://go.usa.gov/xdrjD.

The BLM and BIA will accept comments through May 28, 2020.

Comments can be submitted via the web address, https://go.usa.gov/xdrjD, or by mail to:

Bureau of Land Management, Farmington Field Office, Attn.: Jillian Aragon, Project Manager, 6251 College Blvd, Suite A, Farmington, NM  87402

or to

Bureau of Indian Affairs, Navajo Regional Office, Attn.: Robert Begay, Project Manager, P.O. Box 1060, Gallup, NM  87301

Legal Briefs - March 2020

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

Ron McCoy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Think about that for a sec. 

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

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

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

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

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

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

ENDNOTES

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

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

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

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

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

[6] Ibid.

[7] Savoy-Sarr Report, 3.

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

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

[10] Codrea-Rado. 

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

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

[13] Savoy-Sarr Report, 1.

[14] Ibid., 2.

[15] Farah Nayeri.

[16] Ibid.

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

[18] Ibid.

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

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

[21] Nayeri.

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

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

[24] Ibid.

[25] Ibid.

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

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

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

[29] Herman.

Legal Committee Report - Winter 2019-2020

To all ATADA Members, Museum Associates, Private Collectors and Supporters of the preservation and study of tribal arts around the world:

Thank you for making ATADA the premier Native American and international tribal art organization in the US. More than ever, ATADA’s voice is being heard in Washington and around the country. Last year, you helped us to protect the interests of small businesses, art fairs, auction houses, small museums and private collectors. You supported our efforts to make common cause with colleagues in the wider art world. You helped us to educate legislators and the public about the dangers of ill-considered laws, treaties and agreements that would sequester all art in the country of origin and infringe on the privacy rights on honest citizens.

2019 and early 2020 have been a very active time for our organization. As we predicted, a new, even more restrictive STOP Act was introduced in 2019 and continues to be a major issue in 2020. New money laundering legislation that would place a heavy financial burden on small businesses and specifically directed against the art and antiquities trade passed the House of Representatives in 2019 and is now being taken up in the Senate. In 2019, we successfully challenged a Montana bill that would have meant the loss of businesses and private collections across that state. 

We have focused our efforts on providing legislators with positive, fact-based solutions. Our work has resulted in the defeat or delay of damaging legislation on federal and state levels. At the same time, we have expanded ATADA’s extremely successful Voluntary Returns Program. Our community-based outreach to tribes stresses partnership with legitimate businesses to protect tribal resources and cultural heritage, advocating together for increased federal support for indigenous peoples.

ATADA is once again fighting the good fight for ethical and responsible trade in tribal and ethnographic art, for preservation, and for access for all. We need your continued support to protect you, your business and your collections in the coming year. Here is just some of what we accomplished in 2019!

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• MONTANA BILL HB637

  In March 2019, ATADA successfully argued against an attempt to pre-empt private ownership rights in Montana. A legislator had introduced a bill that made it illegal to “purposely or knowingly buy, sell, exchange, distribute, market, or otherwise conduct a commercial transaction for profit that involves an object of cultural patrimony or a sacred object.” Cultural patrimony included virtually any Native American object that had “ongoing historical, traditional, or cultural importance central to an Indian tribe, group, or culture.” The bill gave an Indian-majority burial board, previously tasked with dealing with unmarked graves and other finds of human remains, the job of deciding whether items, including private property of collectors and inventory of businesses, were sacred or inalienable cultural patrimony, and deciding whether current owners or tribal claimants owned them. It did not allow outside experts or appeal.

  The bill, HB 637, could have made the trade and collecting of Indian art and artifacts a minefield for dealers, collectors, and museums, in which they would face severe fines or jail time simply for buying or selling items long in circulation. Thanks to an intensive educational campaign about the harmful effects of the legislation, the bill failed to get out of committee.

• MONEY LAUNDERING LEGISLATION

  In October 2019, the House of Representatives passed H.R. 2514, imposing privacy-destroying Bank Secrecy Act anti-money laundering rules on “antiquities” dealers, without defining what an “antiquity” is. ATADA opposes the bill, which is supported by anti-art trade extremists in partnership with vendors who sell anti-money-laundering services. There is no evidence of U.S. money laundering through art. The bill is currently before the U.S. Senate, which is considering expanding it to cover all art dealers.

• STOP ACT III

  A third version of the Safeguard Tribal Objects of Patrimony (STOP) Act, S.2165, H.R. 3846, was introduced in July 2019. Sponsors claimed the STOP Act would “prohibit the exporting of sacred Native American items and increase penalties for stealing and illegally trafficking tribal cultural patrimony.”

  The 2019-2020 STOP Act requires a permit for export of items as low as $1 in value and keeps secret what can’t be exported. 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. Each item will be subject to tribal review by the 568 federally registered tribes, Hawaiian organizations and Alaskan villages. The review system will operate in secret, and without any time limit.

  Because the bill can include commercial items, it will force people to guess whether they need to apply for a permit. There is not even a way to find out the reason for a seizure through a Freedom of Information Act request and there is little an exporter can do to appeal.

  In 2018, ATADA worked together with tribes and legislators to craft a bill that 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 Indian arts and crafts would not come to a halt. The legislative session ended with that bill still in committee and unfortunately, the 2019 STOP Act fails to consider the solutions agreed to in 2018.

  In early 2020, Board member Bob Gallegos met with 14 legislative offices to talk about ATADA’s community-based work and to show them how the latest version of the STOP Act would discourage all trade in Indian art, harm Native artisans, destroy value in legally-owned private property, and undermine due process.

• AUCTIONS, ART FAIRS, SMALL BUSINESSES AND COLLECTORS AT RISK

  Anti-art trade activists continue to challenge private collecting, museum donation, and traditional sales venues in other ways. The Association on American Indian Affairs continues to seek tribal pre-approval of auction and other sales of antiques and even contemporary artworks such as kachinas and other carvings. ATADA’s bylaws establish protections against all unlawful sales and encourage the return of sacred items in current use to tribes, but ATADA policies also insist on federally-mandated constitutional and privacy rights of citizens to lawfully trade, collect, and donate artworks to museums.

  In all these ways and more, ATADA is working to keep you and your collections safe from government overreach. We’ve done great work but our resources are exhausted, and we need your help to meet these challenges.

You can make that difference right now!

Please contribute today!
Make your check payable to the ATADA Legal Fund and mail to:

David Ezziddine
Executive Director, ATADA
PO Box 157
Marylhurst, OR 97036

You can also support the Legal Fund by making an online contribution or by donating an item for auction! For more info, check out: atada.org/legal-fund

Questions? Contact David at director@atada.org
Visit www.atada.org/legal-issues to learn more about ATADA actions.

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 Repatriations through October 9, 2019

by Ron McCoy 

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

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

Under NAGPRA, a “sacred object” is a piece “needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day [sic] adherents.”[4]  As for “cultural patrimony,” a piece qualifies for inclusion in this category if it has

“ongoing historical, traditional, or cultural importance central to the Native American group or cultural itself, rather than property owned by an individual Native American, and which, therefore, cannot be alienated, appropriated, or conveyed by any individual regardless of whether or not the individual is a member of the Indian tribe or such Native American group at the time the object was separated from such group.”[5]

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

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

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

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

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

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

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

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

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

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

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

Three Coast Salish Masks
Sacred Objects

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

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

Five Haundenosaunee/Iroquois (Cayuga) Wooden Masks
Sacred Objects

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

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

Winnebago Medicine Bundle
Sacred Object

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

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

Blackfeet Beaver Medicine Bundle
Object of Cultural Patrimony

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

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

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

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

NOTES

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

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

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

[4] Ibid.

[5] Ibid.

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

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

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

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

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

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

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

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

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

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

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

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

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

by Ron McCoy

View fullsize

Palahiko Mana, Water Drinking Maiden
c. 1899, Unknown Hopi Artist
via Wikimedia Commons

On July 18, U.S. Senators Martin Heinrich (D-NM) and Lisa Murkowski (R-AK) introduced Capitol Hill to the latest (third) version of the thus-far-unsuccessful Safeguard Tribal Objects of Patrimony (STOP) Act.[1] 

STOP is intended to “prohibit the exporting of sacred Native American items and increase penalties for stealing and illegally trafficking tribal cultural patrimony.”[2]   The bill represents a response to some Parisian auction houses’ widely publicized sales of items over the vehement objections of representatives from tribes which hold those objects sacred.[3] If passed, STOP would, according to a wire service account,

ban collectors and vendors from exporting Native American ceremonial items to foreign markets….increase penalties within the United States for trafficking objects that tribes hold sacred by increasing prison time from five years to 10 years for violating the law more than once….At the same time, the bill would establish a framework for collectors to return protected items to tribes and avoid facing penalties.[4]

This legislative initiative’s cosponsors in the U.S. Senate include Tammy Baldwin (D-WI), Steve Daines (R-MT), Brian Schatz (D-HI), Martha McSally (R-AZ), Tom Udall (D-NM), and James Lankford (R-OK).  A House version is on offer under the auspices of Representatives Tom Cole (R-OK), Ben Ray Luján (D-NM), Deb Haaland (D-NM), and Don Young (R-AK), with cosponsors including Betty McCollum (D-MN), Tom O-Halleran (D-AZ), Amata Coleman Radewagen (R-American Samoa), and Xochitl Torres Small (D-NM). 

Institutional endorsers include Santa Clara Pueblo, Tesuque Pueblo, Zuni Pueblo, Nambé Pueblo, Wyandotte Nation, Native Village of Barrow, Mt. Sanford Tribal Consortium, Duckwater Shoshone Tribe, Susanville Indian Rancheria, Miami Tribe of Oklahoma, Mille Lacs Band of Ojibwe, Cherokee Nation, United South and Eastern Tribes, Eastern Band of Cherokee Indians, Hopi Tribe, Midwest Alliance of Sovereign Tribes, Sealaska Heritage, the National Association of Tribal Historic Preservation Officers, Tanana Chiefs Conference, and the National Indian Head Start Directors.[5]

This latest version of STOP is a significant development for just about anyone involved in the American Indian art world – especially when you consider that even after the legislative tinkering required following two previous attempts to put this legislation into the law books failed, STOP remains problematic.   

Cultural Property News – a must-read for those participating in the world of indigenous art – performed a superb job in summarizing STOP, and I encourage you to give their analysis your attention.[6]  In its current form, STOP exhibits potentially serious flaws and the sort of unclarified ambiguity that may help move legislation along but only creates problems down the road.  ATADA’s president Kim Martindale is quoted in the article as noting of STOP:

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

Again, I encourage you to read the Cultural Property News piece.  Other goings on may suck the air out of the news sphere, but for anyone reading this column the 2019 STOP legislation could represent one of the most important legal issues you’ll confront for quite some time.

Covering the US’s Native American Graves Protection and Repatriation Act of 1990 (NAGPRA) – which I’ve done pretty much since it emerged from the swirl of confusion attending the Columbian quincentenary – sometimes seems a mixed blessing.  This is especially the case when one’s intended audience is composed largely of curators, collectors, and dealers populating the world of tribal art; people who want and need to know how to deal with the purposes, nuances, and complexities of what remains a controversial piece of legislation.

The “mixed” part of the blessing comes up while attempting to indicate the ways in which NAGPRA’s interpretation and enforcement changes over time.  I refer specifically to NAGPRA’s notices of intent to repatriate. 

As this column’s regulars know, NAGPRA calls for the repatriation from organizations it broadly identifies as “museums” of Native American and Native Hawaiian objects falling into its categories of repatriation-eligible material: associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony.[7]   Of these four categories, the latter two are typically of concern here.  (As noted below, this rule of thumb is flexible and there are exceptions.)

Notices of intent to repatriate objects covered by NAGPRA from institutions the law broadly identifies as “museums” appear irregularly in the Federal Register.[8]   Such a notice specifies the institution involved, the tribal entity or individual making the claim for return, the determination the institution and the claimant(s) reached about the object’s status under NAGPRA, and the identification of the party (or parties) to which the object will be repatriated (pending the filing of a competing claim or claims).

Unfortunately, some of those charged with carrying out the law’s provisions regarding repatriation of objects appear to be engaged – whether knowingly or otherwise, I cannot say – in issuing pronouncements which make the law considerably more opaque than transparent.  Too many NAGPRA announcements exhibit a lazy sloppiness bordering on arrogant contempt for readers.

Since the NAGPRA notices of intent to repatriate that are summarized here may be the only source of information about the status of objects of interest to curators, collectors, and dealers, it is vitally important that information about repatriations (and the objects affected) should be presented in as clear and thorough a manner as possible. 

When I go over a NAGPRA notice, I search for the main points so, even while that notice is distilled in this space, readers will be able to sense whether the outcome affects their bailiwick in the tribal art universe.  Hopefully, they will also sense whether – responding to the pull of enlightened self-interest or commendable curiosity – they ought to inspect that notice in greater detail for themselves in the Federal Register.

Attempting to digest these notices with the eyes of a tribal art world curator, collector or dealer, inevitably leads to questions.  Is the object identified in a way that affords a reasonably intelligent individual an opportunity for understanding exactly what it is?  Is it described with a degree of clarity that allows for little in the way of confusion?  Does the notice coherently set forth the object’s original purpose and role?  Does the notice lay out a credible case for repatriation under NAGPRA? 

Is a resounding “yes” on all counts too much to expect?

Perhaps it’s the old professor in me, but, increasingly, some of these notices read as if they were drafted with the goal of providing readers (and posterity) with as little information as possible.

Fortunately, the bulk of the notices summarized below – this current crop takes us up to June 3, 2019 – could serve as templates for NAGPRA’s notices of intent to repatriate.  One can read most of them and come away with a pretty clear idea of just what type of materials are getting swept up into NAGPRA’s net and why. 

As usual, the dates given here in connection the notices are those on which they appeared in the Federal Register.  All quotations come from those notices.

Tlingit Oyster Catcher Rattle, Shaman’s Staff,
Shaman’s Hat, Shaman’s Spirit Helper
Unassociated Funerary Objects

Eiteljorg Museum of American Indians and Western Art, Indianapolis, IN (June 3, 2019): This column no longer routinely reports on NAGPRA notices of intent to repatriate unassociated funerary objects.  They usually don’t attract obvious, compelling, and broad interest in the tribal art world.  Occasionally, however, one of these notices finds its way to this space because it is of historical or other interest, particularly insofar as shining light onto the ways NAGPRA regards certain kinds of objects.  This is one of those occasions, because it focuses on Northwest Coast material of precisely the sort that attracts broad interest in the tribal art community.

This notice’s drafter(s) made a concerted effort to take us beyond the we-have-this-and-they-said-that-so-now-it’s-gone type of presentations which show up too often in the Federal Register’s notices of intent to repatriate.

The collecting activities of Indianapolis businessman Harrison Eiteljorg (1903-1997) led to the creation of the eponymous museum associated with this notice.  Eiteljorg’s expansive interests included the Northwest pieces referenced here – Oyster Catcher Rattle (circa 1870), Shaman’s Staff (c. 1880), Shaman’s Hat (c. 1800), and Shaman’s Spirit Helper (c. 1850) – all acquired by him between 1979 and 1981.  Eiteljorg was a canny businessman and careful buyer, and it is not surprising that the pedigrees of these objects are linked to names which loomed large in the tribal art market of the late-1970s and 1980s.[9] 

This notice provides solid descriptions of the objects in question.  Picking out an object at random, we learn that the Oyster Catcher Rattle

is constructed from a single piece of wood, bears black, red, and light blue pigments.  It has been halved and likely hollowed out to hold what may be seeds used to create its rattling sound.  A leather cord is tied to one side of the rattle.  The top of the rattle represents a long-billed bird.  Near the handle is a wolf spirit with a protruding tongue.  The underside is carved to depict what may be a beak.

According to representatives of the Central Council of the Tlingit & Haida Tribes, these four pieces – all of them provided with informative descriptions – are “cultural items used only by a shaman.” 

Shaman’s implements would have been interred with a shaman.  As it is against Tlingit custom to grant permission to disturb or disinter a shaman’s grave the Central Council believes that these four cultural items could have only been collected with removing them from a grave, and therefore, they are unassociated funerary objects [under NAGPRA].  Historic and contemporary scholarly research reiterate that traditionally, Tlingit shamans were buried with their accoutrements such as rattles, staffs, hats, and spirit helpers. 

 And, to seal the deal: “As indicated through museum records and consultation with the Central Council, the cultural affiliation of the cultural items is Tlingit.  According to Tlingit oral tradition, the Tlingit people have owned and occupied southeastern Alaska since time immemorial.”  This is enough for NAGPRA’s purposes to assist in the claim.

It was agreed that these objects should be returned to the Central Council of the Tlingit & Haida Indian Tribes in Alaska.

Kumeyaay Stone Pendants, Pestle, Slab, Figures, and Pipe (or Sucking Tube), and Bone Whistle Fragments
Objects of Cultural Patrimony

University of San Diego, San Diego, CA (June 3, 2019): In 1994, the museum was given “one set of bone whistle fragments; two stone pendants; one miniature stone pestle; one stone slab with pictograph; two stone figures; five ceramic pipes; and one stone pipe or sucking tube.”  These came from unidentified sites in San Diego County and were obtained sometime during a forty-year-long period commencing in the 1950s.[10]

San Diego County “is recognized as the aboriginal area of the people of the Kumeyaay Nation and all 13 bands of the Kumeyaay Nation were invited to consult.”  From these consultations, specifically as a result of interaction with representatives of Jamul Indian Village of California (a Kumeyaay Nation component), “tribal members recognized these objects as having been important to their village members, and spoke of how they were used both in the past and present.  They related stories of learning about objects similar to these from tribal members.”  The final determination?  “These thirteen objects are likely culturally significant to all the bands of the Kumeyaay Nation.”  (Yes, “likely” does sort of jump out of that sentence, but sufficient for NAGPRA’s purposes.)

It was decided to repatriate the pieces to the Campo Band of Diegueno Mission Indians of the Campo Indian Reservation; Capitan Grande Band of Diegueno Mission Indians (Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation; Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas Reservation; Ewiiaapaayp Band of Kumeyaay Indians; Iipay Nation of Santa Ysabel (previously identified as the Santa Ysabel Band of Diegueno Mission Indians of the Santa Ysabel Reservation); Inaja Band of Diegueno Mission Indians of the Inaja and Cosmit Reservation; Jamul Indian Village; La Posta Band of Diegueno Mission Indians of the La Posta Indian Reservation; Manzanita Band of Diegueno Mission Indians of the Manzanita Reservation Mesa Grande Band of Diegueno Mission Indians of the Mesa Grande Reservation; San Pasqual Band of Diegueno Mission Indians; and the Sycuan Band of the Kumeyaay Nation, all of California.

Hopi Butterfly Dance Tablita
Sacred Object 

Pueblo Grande Museum, Phoenix, AZ (M, 2019): In 1983 a patron gave the museum a Hopi Butterfly Dance tablita, a headdress made of painted wooden slat-like components.  (“Tablita” comes from the Spanish tabla, which in this instance may be taken as meaning a board, plank, or slab.)  Unfortunately, the notice provides no information about the appearance of the tablita, its painted design(s), or vintage.

Although tablita headdresses are worn by some of the tribe’s katsinim during appearances in public plaza dances, they are perhaps most commonly associated with the tribe’s Butterfly Dance.  The notice informs us that because “representatives of the Hopi Tribe of Arizona demonstrated the Tribe’s cultural affiliation with this object, and established that the object was needed for use by girls during a traditional Hopi ceremony,” the tablita qualified as a sacred object that should be transferred to the Hopi Tribe.

Thirty-Two Diverse Karuk Objects
Sacred Objects/Objects of Cultural Patrimony

Autry Museum of the American West, Los Angeles, CA (May 3, 2019): This sweeping notice, a model for such proclamations, embraces thirty-two objects formerly in the collections of the Southwest Museum of the American Indian.[11]  All of them are categorized under NAGPRA as both sacred objects and objects of cultural patrimony.  Here is an abbreviated listing of the material involved:

an otter fur dance belt and a woven horsehair dance belt….one pipe [with steatite bowl] and one leather pouch….one large [half-a-foot wide and nearly a yard-long] and 33 1/2 -inches obsidian blade….one wooden stool, one [yew] bow, and one bone whistle….one rattle wand, one deerskin, two netted hangers, one case for feathers, one grass apron, and one bow with six arrows….four jump dance baskets….one head right made of deerskin and woodpecker feathers, two eagle don head plumes…one headband made of porcupine quills, two headbands made from sea lion teeth, one dance apron made from a ring-tail pelts [sic], one quiver made from fisher pelt and eight arrows…one wolf hair blinder, two otter fur blinders…two hangers made from woven plant fibers with feathers….one deerskin dress….one dentalium [shell] necklace.

These objects came to the museum between 1918 and 1985 (most during the 1930s) through purchase, exchange, and donation.  All were identified as emanating from the Karuk people of northern California.

As noted earlier, this notice of intent to repatriate could serve as an exemplar for all such announcements.  This is because it tells us quite a bit about all of the pieces under review.   

That massive, six-inches-wide, almost yard-long obsidian blade, for example?  We learn it was collected in an area long associated with the Karuk and that “the size, material, and design of the blade is typical of Karuk ceremonial blades.”  Further, “Karuk representatives explained during consultation that this blade was used during the White Deerskin Dance, where large ceremonial obsidian blades are carried by the participants who lead the dance.”  This leads to support for the formulaic NAGPRA statement that “it is a specific ceremonial object and is required by the Karuk Tribe…to properly perform the traditional religious dances and prayers for the White Deerskin Dance,” which makes it a sacred object.  Finally, “Karuk representatives explained during consultation that medicine pieces, although cared for and used by individuals, were owned collectively and could not be sold or traded by individuals.”  This makes the blade an object of cultural patrimony. 

That quartet of jump dance baskets?  “Karuk representatives stated during consultation that due to the designs on the baskets, the characteristics of their construction, and evidence of wear from use, these jump dance baskets were use in the Jump Dance and were not made for sale.  Anthropological and historical information also demonstrate that these objects are Karuk objects used in the Jump Dance.”

The entire collection was slated for repatriation to the Karuk Tribe in northern California.

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

EndNotes:

[1] The text of the proposed law (S. 2165 and H.R. 3846) is at https://www.congress.gov/bill/116th-congress/senate-bill/2165/text?q=%7B%22search%22%3A%5B%22Safeguard+Tribal+Objects+of+Patrimony%22%5D%7D&r=2&s=2

[2] “Bipartisan, Bicameral STOP Act To Safeguard Tribal Items Introduced,” (July 18, 2019 press release from the office of U.S. Representative Tom Cole), https://cole.house.gov/Bipartisan-Bicameral-STOP-Act-Introduced

[3] Mary Hudetz, “U.S. lawmakers propose ban on export of tribes’ sacred items,” (Associated Press: July 18, 2019), https://www.adn.com/nation-world/2019/07/18/us-lawmakers-propose-ban-on-export-of-tribes-sacred-items/

[4] Ibid.

[5] “Bipartisan, Bicameral STOP Act to Safeguard Tribal Items Introduced.”

[6] “2019 STOP Act: Fixing a Flawed Indian Art Bill: Undermining Established Public Policy Is Harmful to Museums, Businesses, Native Artists, and Tourism,” Cultural Property News (July 24, 2019), https://culturalpropertynews.org/2019-stop-act-fixing-a-flawed-indian-art-bill/

[7] Definitions of the last two of these categories occasionally appear in this column.  For further information, I direct you to “NAGPRA Glossary,” National NAGPRA (National Park Service, U.S. Department of the Interior, n.d.)  https://www.nps.gov/nagpra/TRAINING/GLOSSARY.HTM

[8] The Federal Register can be found online at https://www.archives.gov/federal-register/the-federal-register

[9] According to the notice: “The Oyster Catcher Rattle [dated circa 1870] was previously owned by John A. Buxton of Shango Galleries, and was purchased by Harrison Eiteljorg in [sic] November 15, 1979….The Shaman’s Staff, dated circa 1880, was purchased by Harrison Eiteljorg from Tom Julian, in June 1980.  It was originally owned by Howard Roloff….The Shaman’s Hat, dated circa 1800….was purchased by Harrison Eiteljorg from Sotheby’s, Parke-Bernet in April 1981.  The Shaman Spirit Helper, dated circa 1850, was purchased by Harrison Eiteljorg from Richard Rasso in April 1981.” 

[10] These pieces came from the donation that forms the institution’s David W. May Collection, for which see “David W. May Collection,” University of San Diego, University Galleries (2019),  https://www.sandiego.edu/galleries/collections/david-w-may-collection.php

[11] In 2003, the Southwest Museum, an iconic institution founded in Los Angeles in 1907 by photographer, preservationist, journalist, archaeologist, and Indian rights activist Charles F. Lummis (1859-1928), with the Autry Museum of the American West (originally called the “Gene Autry Western Heritage Museum” in honor of its chief benefactor).

Legal Briefs: NAGPRA Catch-Up

by Ron McCoy

The Tewa Pueblo at San Juan, via Wikimedia Commons

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

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

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

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

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

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

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

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

Trunk of Omaha “Medicinal Bundles”
• Sacred Object

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

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

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

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

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

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

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

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

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

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

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

Haudenosaunee Wampum Belt
• Object of Cultural Patrimony

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

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

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

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

Yaqui Deer Head
• Object of Cultural Patrimony

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

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

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

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

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

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

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

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

San Juan Pueblo Prayer Stick
• Sacred Object

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

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

Endnotes:

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

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

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

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

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

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

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