Legal Briefs - June 2021

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

by Ron McCoy

Interior of Chief Shakes House, via Wikimedia Commons

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

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

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

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

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

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

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

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

Diegueño/Kumeyaay Basketry Feathered Shaman’s Hat
Sacred Object

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

The museum agreed to transfer the hat to a group of culturally related California entities referred to collectively as “The Tribes” for purposes of the notice: the Campo Band of Diegueno Mission Indians of the Campo Indian Reservation; Capitan Grande Band of Diegueno Mission Indians (Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation); Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas Reservation); Ewiiaapaayp Band of Kumeyaay Indians; Iipay Nation of Santa Ysabel; Inaja Band of Diegueno Mission Indians of the Inaja and Cosmit Reservation; Jamul Indian Village; La Posta Band of Diegueno Mission Indians of the La Posta Indian Reservation; Manzanita Band of Diegueno Mission Indians of the Manzanita Reservation; Mesa Grande Band of Diegueno Mission Indians of the Mesa Grande Reservation; San Pasqual Band of Diegueno Mission Indians; and the Sycuan Band of the Kumeyaay Nation.

Painted Drum (Cochiti Pueblo)
Sacred Object/ Cultural Patrimony

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

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

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

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

Killer Whale Shirt (Tlingit)
Sacred Object/ Cultural Patrimony

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

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

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

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

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

5,816 Objects (Winnebago)
Cultural Patrimony

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

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

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

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

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

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

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

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

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

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

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

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

ENDNOTES

[1] “Cultural items” under NAGPRA means: “Human remains, associated funerary objects, unassociated funerary objects, sacred objects, [and] cultural patrimony.” “Native American Graves Protection and Repatriation Act: Glossary,” National Park Service (2020), https://www.nps.gov/subjects/nagpra/glossary.htm

[2] For NAGPRA’s purposes, a “museum” refers to “[a]ny institution or State or Local government agency (including any institution of higher learning) that receives Federal funds an has possession of, or control over, Native American cultural items.” Ibid. Specifically excluded: “the Smithsonian Institution or any other Federal agency,” which are covered by other legislation.

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

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

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

[6] Ibid.

[7] Ibid.

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

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

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

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

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

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

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

Legal Briefs - November 2020

NAGPRA (Increasingly Opaque) Repatriations through April 20, 2020

by Ron McCoy 

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Totem poles outside of Chief Shakes' home, Wrangell, Alaska, 1895

The way things — “things” being synonymous with “pretty much everything” — have been going of late, it’s not surprising the repatriations of objects carried out under the Native American Graves Protection and Repatriation Act (NAGPRA), which the U.S. Congress passed back in 1990, occupy at best a backburner for most of us just now. Nevertheless, NAGPRA remains in effect and its impact continues rippling through the world of antique tribal art dealers, collectors, curators, and scholars.

By way of a quick summing-up: NAGPRA is dedicated in part to repatriating “cultural items”[1] — physical objects — of Native American and Native Hawaiian origin from any institution satisfying its broad definition of “museum.”[2] In order to be eligible for repatriation, a piece must satisfy NAGPRA’s requirements for including it in one (or more) of its five categories: human remains, associated funerary objects, unassociated funerary objects, sacred objects and objects of cultural patrimony. The two categories that regularly receive attention in this space are sacred objects[3] and objects of cultural patrimony.[4]

Announcements of a decision to repatriate objects — issued, pending the arrival on the scene of one or more competing claims on the piece — appear on an irregular basis in the Federal Register. These notices are supposed to let us know: (a) the institution involved; (b) the identity of the claimant(s); (c) information about the piece and its history; and (d) the person or body to which a piece will be repatriated. (Unless otherwise indicated, the quotes used in reporting these notices comes from the notices themselves.)

Each component of a notice of intent to repatriate — identifying the parties to the agreement; explaining what the piece is and why/how it satisfies the law’s requirements for inclusion NAGPRA’s sacred objects and/or objects of cultural patrimony categories; and, finally, the reveal: where it’s going now — is important in and of itself. That’s why, as I read through a notice, it’s the description of a piece and its history that looms especially large — particularly with respect to what types of objects, specifically, the law embraces.

After all, without that, how can we possibly know what, exactly, is being repatriated? Please keep that in mind when glancing at the final two notices in the current column.

Here, then, are summaries of NAGPRA notices of intent to repatriate sacred objects and objects of cultural patrimony that appeared in the Federal Register through April 20, 2020.

Tlingit Killerwhale Hat, Rich Man’s Cane (Killerwhale Cane), Marmot Mask, Bear Headress, Bear Shirt, Sea Monster Pipe, Grizzly Bear Mask
Objects of Cultural Patrimony/Sacred Objects

Thomas Burke Memorial Washington State Museum, University of Washington, Seattle, WA (April 20, 2020): This notice highlights seven pieces of Tlingit origin.

Five of the seven objects were purchased by the museum in 1953 from the widow of Walter C. Walters, who operated the Bear Totem Store curio emporium at Wrangell, in southeastern Alaska.[5] Walters opened his enterprise in 1922, after acquiring works of Northwest Coast indigenous art while working as a mail carrier and fur buyer in the region.[6] The notice states Walters “removed” these pieces from Wrangell between 1920 and 1953, although the details of these transactions and exchanges appear unknown. The five objects addressed by this part of the notice are: a Killerwhale Hat, Rich Man’s (or Killerwhale) Cane, Marmot Mask, Bear Headdress, and Bear Shirt.

The notice also covers a Sea Monster Pipe, which was removed from Wrangell at a time and under circumstances unknown before ending up with art dealer Leonard S. Lasser, who donated it to the museum in 1972.

The fifth, final item repatriated under this notice is a Grizzly Bear Mask acquired between 1926-1937 by Axel Rasmussen, the superintendent of Bureau of Indian Affairs schools in Wrangell from the late 1920s until 1937, when he took up a similar position at Skagway.[7] Part of the Rasmussen collection acquired by the Portland Art Museum in 1948, the Grizzly Bear Mask was subsequently deaccessioned and acquired by noted Northwest Coast specialist Bill Holm, who donated it to the Burke Museum in 1974.

The notice references photographs showing some of the pieces listed here in situ, as it were: one of Chief Shakes, the fifth of that name, lying in state in 1878, with some of the objects surrounding him;[8] another of the interior of the clan home of his successor, Shakes VI, where some of the material was kept.[9]

Each of these items was originally collected at a time when Tlingit people were undergoing crushing hardships associated with the sort of dispossession and exploitation commonly associated with the saga of indigenous contact with the commercial, political, and spiritual representatives of European and Euroamerican cultures.[10]

All of these pieces were deemed objects of cultural patrimony and sacred objects under NAGPRA for purposes of turning them over to the Wrangell Cooperative Association and the Central Council of the Tlingit & Haida Indian Tribes in Alaska.

Hawaiian Zoomorphic Bowl, Basalt Cup
Sacred Objects

State of Hawaii, Department of Transportation, Honolulu, HI (Mar. 3, 2020): Between 1989-1992, highway construction in northeastern Molokai’s Halawa Valley led to the retrieval of archaeological finds, chiefly unassociated funerary objects. Among them: a zoomorphic bowl and basalt cup — listed in the notice but otherwise undescribed — which appear to have been the subject of some sort of unassociated funerary objects mix-up this notice evidently seeks to rectify. Both pieces were categorized as sacred objects and slated for transfer to lineal descendants of the person for whom the burial was created.

Wooden Carving of Laka, Founder of Hula
Sacred Object

Thomas Burke Memorial Washington State Museum, University of Washington, Seattle, WA (Jan. 3, 2020): In 1997, Hawaiian traditionalist artist Rocky Ka’iouliokahihikolo’Ehu Jensen “brought” the carved wooden piece covered by this notice to the museum.[11] The carving represents Laka, a female figure from the time of legends, credited as the patron of and likely originator of Hula on the island of Molokai.

The widely-held popular image of hula most likely involves an amalgam of snippets of ambient surf-sound, Don Ho warbling “Tiny Bubbles,” and scenes of happy-happy dancers waving their arms and wiggling their hips at beachside resorts’ jam-packed luaus. Whatever the entertainment value of those amusements, the motions and chants of hula, as practiced by the more traditionally minded, constitute what is nothing less than “a religious service, in which poetry, music, pantomime, and the dance lent themselves, under the forms of dramatic art, to the refreshment of men’s [sic] minds.” The “view of life” presented in hula performance, was “idyllic, and it gave itself to the celebration of those mythical times when gods and goddesses moved on the earth as men and women and when men and women were as gods.”[12]

The writer of those lines was Nathaniel B. Emerson (1839-1915), a physician, student of Hawaiian culture, and son of early Protestant missionaries to the islands. Christian missionaries like Emerson’s parents started descending in numbers during the 1820s on the Sandwich Islands, a common moniker for Hawaii until local naming practices acquired greater traction.

These missionaries generally perceived indigenous religious practices and observances as quite literally beyond the pale. Consequently, they expended considerable energy and effort addressing the competing Polynesian ethos with hostility. An example of this is seen in their lobbying among converts within the ruling elite for hula’s suppression, a goal first achieved in 1830.[13] (Among those advocating a hula ban was Emerson’s missionary father.)[14] Not surprisingly, hula — much like the Northwest Coast potlatch, Plains Sundance, and countless other ritualized expressions of cultures under assault — became a symbol of group resistance, survival, and a sort of cultural renaissance within population whose members felt very much under attack.

After consultations with representatives of the Native Hawaiian organization Nä Lei O Manu’akepa, the museum concluded the piece “is a necessary component which holds a very important role in the sacred Kuahu Ceremony of traditional Hula practitioners.” Basically, it is seen as nothing less than “a manifestation of the Hula patron, Laka, to which traditional Hula practitioners conduct ceremonies and rituals with offerings for inspiration, guidance and protection in their present-day cultural work and practices.”

The museum agreed the piece depicting Laka is a sacred object which should be dispatched to the Nä Lei O Manu’akepa.

Thirty-One Unidentified Pieces (Masks) Identified as Hopi Sacred Objects

U.S. Department of Justice, Federal Bureau of Investigation, Art Theft Program, Washington, D.C. (Jan. 3, 2020): The notice tells us that at a time unknown thirty-one “sacred objects were acquired and transported to the East Coast, where they remained part of a private collection of Native American antiquities, art, and cultural heritage.” Then, sometime in the spring of 2018, the FBI came calling and seized the pieces in connection with an unspecified criminal investigation. After “multiple consultations” with archaeologists and Hopi representatives, it was determined the pieces should be transferred to the Hopi Tribe of Arizona. As to the type of objects not otherwise described, they are “ceremonial objects that had been misidentified by the collector as ‘masks.’”

Unidentified Object (Mask) Identified as Zuni Sacred Object

U.S. Department of Justice, Federal Bureau of Investigation, Art Theft Program, Washington, D.C. (Jan. 3, 2020): The notice informs us that at an unspecified time an undescribed object, obtained by an unidentified party or parties, was “transported to the East Coast, where it remained part of a private collection of Native American antiquities, art, and cultural heritage.” We are told that in the spring of 2018 this piece “was seized by the FBI [Federal Bureau of Investigation] as part of a criminal investigation.”

The notice breaks out momentarily from its cocoon of coyness to let us know that what we are actually discussing here “is a ceremonial object that had been misidentified by the collector as a ‘mask’” which, pending competing claims, would be given over to the Pueblo of Zuni in New Mexico.

So, when it comes down to the heart of the matter, we (probably) do know what the items in the last two notice summaries are after all: masks. What kind? What age? What materials? What anything?

We do not know.

A law’s utility is inherently linked not only to the circumstances and manner of its crafting, but also in the degree to which it remains transparent and credible, the extent to its purpose for existing and how it’s applied. In this, NAGPRA has been stumbling. How can we know what is considered a sacred object or object of cultural patrimony under NAGPRA — and therefore something eligible for repatriation — unless we are told what the object is, in more detail than its inclusion within a very general category of materials?

Having followed the appearance of NAGPRA’s intent to repatriate notices for more years than I care to count, it seems the law as expressed in them is becoming increasingly opaque; in some instances, hopelessly and unhelpfully useless. There are many exceptions, but the rot of opacity and the confusion it generates and in which it thrives may have settled in for the long haul.

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

ENDNOTES

[1] Under NAGPRA, “cultural Items” means: “Human remains, associated funerary objects, unassociated funerary objects, sacred objects, [and] cultural patrimony.” “Native American Graves Protection and Repatriation Act: Glossary,” National Park Service (2020), https://www.nps.gov/subjects/nagpra/glossary.htm

[2] With NAGPRA, a museum is “[a]ny institution or State or Local government agency (including any institution of higher learning) that receives Federal funds an has possession of, or control over, Native American cultural items.” Ibid. That definition specifically excludes “the Smithsonian Institution or any other Federal agency.”

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

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

[5] The Bear Totem Store presented a colorful, exotic aspect for visitors, as photographs taken from around 1927 (https://vilda.alaska.edu/digital/collection/cdmg21/id/23028/) and 1939 (https://digitalcollections.lib.washington.edu/digital/collection/ alaskawcanada/id/3243/) indicate.

[6] Bonnie Demerjian, Images of America: Wrangell (Charleston, SC: Arcadia, 2011), 30; Greg Knight, “Wrangell’s Tlingit Art on Display at Two Museums,” Wrangell Sentinel (Sep. 20, 2012), https://www.wrangellsentinel.com/story/2012/09/20/news/wrangells-tlingit-art-on-display-at-two-museums/525.html

[7] “Dagger,” Beloit College Digital Collections (n.d.), https://dcms.beloit.edu/digital/collection/logan/id/3274/

[8] For the photo of Shakes V lying in state with those objects see https://www.bgc.bard.edu/objects-exchange-chief-shakes

[9] An image showing Shakes VI “at home with possessions” in 1907 is at https://digitalcollections.lib.washington.edu/digital/collection/loc/id/2034. See also the photo of the object-rich interior of the Shakes VI home in 1909 at Aaron Glass, “Bard Graduate Gallery: 37. Interior of the Chief Shake House, Wrangell, Alaska, https://www.bgc.bard.edu/objects-gallery-chief-shakes-house

[10] Chip Colwell, Plundered Skulls and Stolen Spirits: Inside the Fight to Reclaim Native America’s Culture (Chicago: The University of Chicago Press, 2017), 151-152, does a good job establishing the atmosphere in which cultural material heritage moved out of the Tlingit sphere. As if to emphasize the poverty and desperation of the Tlingit at this time, Shakes VI maintained his home as a virtual gallery, charging admission and offering pieces for sale. Glass.

[11] For Rocky Jensen, see Senator Daniel Akaka’s remarks at “Tribute to Native Hawaiian Master Artist Rocky Ka’ioliokahihikolo’Ehu Jensen,” in Congressional Record (Vol. 146, Pt. 4 [2000]), https://www.govinfo.gov/content/pkg/CRECB-2000-pt4/html/CRECB-2000-pt4-Pg5013-2.htm;

Lucia Tarallo Jensen, “Carving Pathways to the Future: The Rocky Jensen Family Bonds in a Love of Art and Their Hawaiian Legacy,” Ke Ola – The Life: Hawaìi Island’s Community Magazine (June-July 2009), https://keolamagazine.com/art/carving-pathways-future/; Jolene Oshiro, “Activist’s Art Spiritually Authentic,” (Honolulu) Starbulletin,com (Sep. 17, 2004), http://archives.starbulletin.com/2004/09/17/features/index6.html

Of interest, also, is Wanda Ke’ala ‘Anae-Onishi, “Re-Presenting ‘The Kona Style’: Examining the Multiple Identities of Kū,” M.A. thesis (Art), University of Hawaii (2004), https://scholarspace.manoa.hawaii.edu/handle/10125/12080

[12]  Nathaniel B. Emerson, “Unwritten History of Hawaii: The Sacred Songs of the Hula,” Smithsonian Institution, Burau of American Ethnology, Bulletin 38 (Washington, D.C.: 1909), 11-12

[13] For a brief introduction of missionaries’ role in hula banning, see “Missionaries and the Decline of Hula,” HawaiiHistory.org (2020), http://www.hawaiihistory.org/index.cfm?fuseaction=ig.page&CategoryID=253

[14] Noenoe K.Silva, “He Kānāwai E Ho’opau I Na Hula Kuolo Hawai’i: The Political Economy of Banning the Hula,” The Hawaiian Journal of History, 34 (2000), 29-48, provides insight into hula banning. Missionary Emerson’s activity is noted at 40, 48 n32.

World Customs Organization Report: Heritage Trafficking Is Tiny Percentage of Illegal Trade

Eight coins from Afghanistan, including two U.S. silver quarters. Courtesy World Customs Organization.

In recent years, critics of the art trade, and more specifically the antiquities trade, have claimed there is a multi-billion dollar black market for illicit items which helps fund nefarious activities such as terrorism. 

The Illicit Trade Report 2019, published by the World Customs Organization, shows that the true scale of cultural property smuggling is actually quite small, especially when compared to other forms of illegal trade such as drugs, counterfeit goods and weapons. 

In his article published on Cultural Property News website, Ivan Macquisten notes that, "The 200-page Illicit Trade Report reveals that cultural property accounts for just 0.2 percent of all investigations and seizures reported by the Customs Enforcement Network." 

For some perspective, Macquisten further states, "...of the 102,214 cases investigated in 2019, just 227 involved cultural heritage. This compares to 36,264 for drugs, over 28,000 for counterfeit goods including medical supplies and over 26,000 for alcohol and tobacco..."
This small share of cases is not sufficient to fund terrorism. 

Read Macquisten's full article ➤

Download the WCO Illicit Trade Report for 2019 ➤

Article Describes ATADA's Concerns with the STOP Act

ATADA Members and Friends,

We would like to draw your attention to a recent article on the STOP Act which was published on the Antiques and The Arts Weekly website by Greg Smith. In the article, Mr. Smith describes the various issues and causes for concern that ATADA has continued to raise with each iteration of the bill. 

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Click below to read our update on the STOP Act from earlier this month.

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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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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.