Legal Issues

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ATADA Legal Committee 2017 Year-End Report

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Throughout the year, the legal committee has been actively engaged in legislation impacting the tribal arts community. We raised serious legal, economic and practical questions about the 2017 Safeguard Tribal Objects of Patrimony Act (STOP Act) currently before both Houses of Congress. We have worked with business community leaders, legislators, and tribal representatives to make clear the harms resulting from passage of the STOP Act.
 
Together with other organizations, ATADA submitted extensive legal testimony showing how the STOP Act would damage fundamental U.S. public policy. We are grateful that the Senate Indian Affairs Committee heard our concerns and did not move the STOP Act forward this year.
 
While we have accomplished much, we believe this will be an ongoing effort. We expect some version of the STOP Act to come before Congress in 2018. ATADA will remain actively engaged and will continue to advocate on behalf of the museum, dealer and collector community.
 
At the same time, we have taken concrete steps to ensure the highest standards of due diligence among our dealer and collector members. ATADA membership continues to stand for the lawful, ethical trade in tribal art.
 
We’ve increased public outreach and educational work. All our members should know about ATADA’s outstanding public programming, including our sponsorship of the 2017 Santa Fe symposium: “Understanding Cultural Property: A Path to Healing Through Communication,” and participation in public events at the School for Advanced Research in Santa Fe. We appreciated the excellent participation and attendance by members at these important events.  Additionally, the ATADA News, which is available to all online, has expanded its coverage of many key issues. 
 
ATADA looks forward to continuing its work with tribal partners in ongoing, grassroots actions, such as the ATADA Voluntary Returns program, to strengthen cooperation and mutual understanding. This year, the Voluntary Returns program facilitated the return of dozens of donated objects to Native communities, including a number of highly-significant spiritual objects. These efforts have generated a very positive response. They have been beneficial in fostering dialogue with tribal leaders and building trust that ATADA members will continue to honor the sensibilities of Native peoples.
 
Robert Gallegos heads the ATADA Voluntary Returns program. Please contact him with questions regarding the donation process and to facilitate a return.
He can be reached at 505-262-0620 or gallegos@nmia.com.
 
For all this work to continue, we must ask for your financial support.
Your contribution is instrumental as we continue to advocate for the rights of museums, dealers and collectors while promoting cultural awareness and community-based alternatives over intrusive, damaging legislation.
 
You can contribute online at www.atada.org/legal-fund , or contact David Ezziddine at director@atada.org for more information on how to help.

Sincerely yours,
The ATADA Legal Committee

Contributions to the ATADA Legal Fund are vital to continuing these efforts. Please consider making a contribution today. Thank you!

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ATADA Written Testimony Submitted to Senate Hearing on STOP Act 2017

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On November 8th, 2017, the Senate Committee on Indian Affairs held a hearing on the Safeguard Tribal Objects of Patrimony Act of 2017.  ATADA President, John Molloy, had planned to present oral testimony before the committee; however, the only person allowed to testify in person was Governor Riley of Acoma Pueblo.   The committee did allow the submission of written testimony. A copy of this testimony can be downloaded by clicking the link below. 

Written testimony was also submitted by the Committee for Cultural Policy (CCP) and the Global Heritage Alliance (GHA). Both organizations have permitted us to make those documents available.  

No votes were taken during the hearing. The House Committee on Indian Affairs has not yet met to discuss the legislation.   

The full text of the Senate and House bills can be downloaded below:

S.1400

H.R.3211

We have made progress against this legislation, but there is still much to do.  This will be an ongoing issue for some time. ATADA will continue to voice our position on this legislation. We need your help to continue this work. If you have not done so, please contribute to the ATADA Legal Fund today.  Any amount is greatly appreciated! 
If you have made a contribution in the past, please consider doing so again. 

Information on how to make your contribution can be found on the Legal Fund page: atada.org/legal-fund

Contributor information is kept confidential. 

 

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Cambodia seeking 5-year renewal of MOU to embargo import of all artifacts.

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The Committee for Cultural Policy's (CCP) recent newsletter features an in-depth article explaining the history of the U.S. Memorandum of Understanding (MOU) and how it has been expanding in scope since 1999. 

The request will be considered by the Cultural Property Advisory Committee, meeting at the Department of State on October 23-24, 2017. 

From the CCP article: 

The first Cambodian ban took effect on December 2, 1999, when the U.S. imposed an emergency import restriction on Khmer stone sculpture and architectural elements from Cambodia, unless such objects were accompanied by export permits issued by the Government of the Kingdom of Cambodia, or by documentation demonstrating that they were out of the country before December 2, 1999.

Read the full article ➤

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ATADA Testimony regarding the Indian Arts and Crafts Act

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Statement of John Molloy, President, ATADA*
Written Testimony submitted to U.S. Senate Committee on Indian Affairs

For the Hearing: Cultural Sovereignty Series:
Modernizing the Indian Arts and Crafts Act to Honor Native Identity and Expression

Hearing date July 7, 2017 – Submitted for the Record July 17, 2017
Santa Fe, New Mexico

ATADA is an international organization honoring the artistic vision of indigenous people.
ATADA represents professional dealers of historic and contemporary tribal art from around the
world. We support the lawful circulation, trade, collection, preservation, appreciation, and study
of art and artifacts from diverse cultures.

Our objectives are to promote ethical and professional conduct among art dealers, to encourage
the responsible collecting, research, and study of tribal arts and culture, and to educate the public in the contribution of tribal cultures to the wealth of human experience.

As a condition of membership, ATADA members guarantee the authenticity of all objects that they offer for sale.

ATADA is deeply concerned by the misrepresentation and mislabeling of Native American, Native Alaskan, and Native Hawaiian works of art and craft. Misrepresentation deceives individual consumers and the public. When misrepresentation occurs, it also damages the reputation of the art trade as a whole. Bad business practices by a few bad apples can negatively impact many honest traders, Native artisans, art dealers, and other important commercial interests. There is a trickle-down effect to all legislation affecting Indian arts and crafts which impacts much larger constituencies and business interests, whether they are those of workers in the cultural tourism industry, or the diverse businesses that depend upon tourism, especially in the Southwestern region.

It is early in the legislative process and no specific amendments to the Indian Arts and Crafts Act have yet been proposed. Without having actual proposed amendments to respond to, ATADA states that it supports in principle the amending of the Indian Arts and Crafts Act to provide greater protections for consumers and the public, Native artists, and the legitimate art trade. However, ATADA notes that currently, prosecutors and tribal plaintiffs have excellent tools to combat fraud and misrepresentation in domestic matters, and to require proper, indelible labeling in foreign imports. The problem is not that stronger laws are needed; resolution requires more and stronger enforcement of existing laws, and funding to ensure that tribes are equipped to fight using the legal tools already to hand.

Testimony at the hearing by Damon Martinez, former U.S. Attorney for New Mexico, pointed out the need to distinguish between (1) steps to improve the U.S. Customs marking requirements for imports to ensure that the items are not later misrepresented, and (2) steps to halt and penalize misrepresentation and other unfair business practices in the U.S.

PROPER MARKING ON IMPORTED GOODS
Proper marking is a key issue, as has been made clear by the descriptions at the hearing of arrests and prosecutions of large scale wholesalers alleged to have imported copies of Native American jewelry from the Philippines. Continuing investigations and prosecutions of individuals and corporate entities found to be engaged in wrongful wholesale imports appears to be working very well and will put a significant dent in any fraudulent activity, if it does not end it altogether.

ATADA recognizes the inherent difficulties in indelibly marking very small objects (such as certain jewelry items) with the country of origin. Tagging protocols should not interfere with the lawful importation and sale of properly identified items. However, packaging and other options may provide a more flexible mechanism to make clear the origin of a very small object. Larger items could reasonably be indelibly marked through a variety of means.

If millions of dollars’ worth of fraudulently imported jewelry has been seized, as stated at the hearing, the federal government ought to do its best to fill this gap in inventory and at the same time, encourage economic development that would benefit tribal artists. One wonders whether the National Park Service could work with the Indian Arts and Crafts Board or with tribal communities to bring more authentic Native American arts and crafts into the federal parks’ concessions, especially in Indian Country, and make authenticity a primary selling point.

Native artists receive recognition for the authenticity of their work when it is sold in the U.S. or elsewhere is another important task, in which enforcement of consumer protection laws is key. Marking options that would distinguish authentic contemporary Native American artworks and crafts could facilitate enforcement.

Antique items cannot easily be marked without damaging the integrity of the object. No rules requiring marking should be employed for antique items. In this situation, consumers should be able to rely of a written receipt and guarantee that items are as represented; guaranteeing authenticity is mandatory for ATADA members already.

AUTHENTICITY AND CONSUMER RIGHTS UNDER STATE LAW
ATADA strongly supports strengthened scrutiny of items offered for sale to the public as Native American and rigorous enforcement of consumer protections. We note that in New Mexico (and in several other states) state consumer protection laws can be a significant deterrent to bad businesses. Government should provide flexibility under the Indian Arts and Crafts Act for the Indian Arts and Crafts Board to provide advice and support to plaintiffs regarding state laws as well. This could enable cases to be brought on behalf of artisans and consumers at a lower cost, and to reap greater damages from violators.

For example, New Mexico’s Indian Arts and Crafts Sales Act, NMSA 1978 § 30-33-7 makes it unlawful to barter, trade, sell, or offer for sale or trade any article represented as produced by an Indian unless the article is produced, designed, or created by the labor or workmanship of an Indian. NMSA 30-33-10 grants a private right of action to all consumers, and NMSA 1978 30-33-6 establishes a duty on the part of the seller to enquire whether an item is authentically Indian and a duty to correctly label the item at the point of sale.

Misrepresenting an item as Native American when it is not is a deceptive trade practice under NMSA 1978 § 57-12-2.D(4), which prohibits using deceptive representations or designations of geographic origin in connection with goods and services. Willful violation of the standards creates liability for sellers of non-Indian goods under New Mexico laws of triple actual damages or $300.00, whichever is greater, under New Mexico’s Unfair Practices Act, NMSA 1978 57-12-10.B.

Attorney fees for plaintiffs are more easily available under both New Mexico’s Unfair Practices Act (NMSA 1978 § 57-12-10.B) and the Indian Arts and Crafts Sales Act , NMSA 1978 § 30-33-1, both of which provide that on showing of a violation, the court must award attorney fees and costs.

COPYRIGHT AND TRADEMARK
Copyright and trademark were also briefly discussed at the hearing. Much of the discussion surrounding misrepresentation of Indian art at the hearing was in regard to wholesale importation of jewelry and textiles in imitation of Native American artistic styles. A “style” cannot be copyrighted, and even specific designs that are considered “traditional” were never copyrighted and are not eligible to be copyrighted now under the U.S. Copyright Act of 1976 (Public Law 94-553, October 19, 1976).

Nonetheless, the specific creations of contemporary jewelers and weavers may be copyrighted, if they are deemed “original” under the law and meet other copyright requirements. While acknowledging that federal trademarks can be expensive to acquire, ATADA suggests that tribal organizations might consider establishing tribal trademarks that would serve as both an identifying mark and a marketing vehicle. ATADA supports federal funding to facilitate economic development programs within the tribes to provide education and assistance in trademark and copyright for tribal artists and artisans through the Indian Arts and Crafts Board, tribal heritage offices or tribal governments.

CONCLUSION
ATADA urges the Senate Committee on Indian Affairs to consult with tribal government and economic development offices in order to determine the most direct and effective means of establishing authenticity for artworks in the market. The most successful measures will be those that boost consumer confidence and encourage the artists of the Native American community to continue to produce the outstanding works of art that represent Native American creativity and skill and that have come to symbolize the wonderfully diverse and unique Southwestern culture.

ATADA looks forward to further discussions with the Senate Committee on Indian Affairs on this and all other legislation affecting the interests of the trade in contemporary and antique Indian art.

 

*ATADA is a professional organization established in 1988 in order to set ethical and professional standards for the art trade and to provide education for the public. ATADA membership has grown to include 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., dedicated to the promotion, study and exhibition of Native American history and culture.
www.atada.org. email: director@atada.org, PO Box 45628, Rio Rancho, NM 87174.

 

ATADA's Response to Libyan Government's Claims to Jewish and Ethnic Tribal Heritage


On July 20, 2017, ATADA urged the Cultural Property Advisory Committee at the Department of State to reject the Libyan government's claim to Jewish and ethnic tribal heritage. A request to block all art and artifacts from Libya up to 1911 from entering the United States appears to be the next step in a movement to bar entry of all art from the Middle East to the US. The Libyan Request for a Memorandum of Understanding (MOU) under the Cultural Property Implementation Act (CPIA) will limit access of all Libyan-Americans to their heritage, regardless of their religious or ethnic background, will prevent US museums from acquiring representative examples of Libya’s place in world art history, and is a slap in the face to Jewish citizens whose families were forced to leave Libya, abandoning all they had.

The Libyan request is extremely broad, covering the entire history of the geographic region that is Libyan territory from the Paleolithic through the Ottoman Era (12,000 B.C.-1750 A.D.). and on its ethnological material dating from 1551 to 1911 A.D. It covers everything from prehistoric tools to Classical antiquities of the Roman period to Islamic furniture, brassware and calligraphy to nomadic herdsmen’s baskets and cooking pots – and everything in between. The request is generic and expansive, rather than specific, as the statute, the Cultural Property Implementation Act (CPIA), requires.

The ethnographic materials also include all Tuareg and Berber items of material culture up to the year 1911, made from stone, metal, ceramic and clay, wood, bone and ivory, glass, textile, basketry and rope, leather and parchment, and writing.

In the attached 9-page response to the Libyan request, ATADA states that not a single criteria set by Congress is met in Libya’s request, whether in the case of Classical antiquities, which the Libyan government has said were not at risk of looting or destruction only a few months ago, in the ethnographic materials of the Tuareg, or in the artifacts remaining from Libya’s Jewish community, which was some 40,000 people in the early 20th century, but not a single Jew remains today.

NOTICE ON MAY 2017 AMENDMENTS TO BYLAWS / STOP Act Update

A number of questions regarding ATADA policies have been raised since the May 22, 2017 Santa Fe symposium, which included coverage of the ATADA Voluntary Returns program and the amended ATADA Bylaws, and presented ATADA’s legal response to the STOP Act. This note is to address some of those questions. We strongly encourage all members to review the changes to Articles X and XI in the ATADA Bylaws.

ATADA is a professional business organization and its primary interest is to protect the business interests of its members. ATADA remains fully committed to its original objectives, as stated on the Bylaws and Policies page of the ATADA website:

“…We support the lawful circulation, trade, collection, preservation, appreciation, and study of art and artifacts from diverse cultures. Our objectives are to promote ethical and professional conduct among art dealers, to encourage the responsible collecting, research, and study of tribal arts and culture, and to educate the public in the contribution of tribal cultures to the wealth of human experience.”

ATADA is following a multi-pronged path in order to effect positive change in the STOP Act and to increase understanding between tribes, legislators and the art trade. Along with the Voluntary Returns program and legislative input, recent amendments to the ATADA Bylaws have been enacted by the ATADA Board.

These amendments are intended to codify standard best business practices and to harmonize ATADA’s due diligence policies with those of other art trade organizations. In this, ATADA is in line with other professional art organizations in Europe and the US. Proper due diligence will protect ATADA members from false claims of poor organization, money laundering or dealing in stolen objects. These due diligence standards can be found under the Bylaws’ Article X – Trade Practices, Ethics, and Guarantees.

The Bylaws also establish ethical guidelines for ATADA members with respect to the sale of certain limited types of objects. Article X states that ATADA dealers will not deal in a very limited subset of objects that are “known to be of important current sacred, communal use to Native American tribal communities.” These terms do not include the word “ceremonial,” which is often too broadly applied. Objects ATADA has identified as inappropriate to sell are “Zuni war gods, Acoma and Laguna flat and cylinder dolls, Hopi ‘friends’, and Navajo masks,” “altar elements and items from shrines belonging to the community.” Sale of these items is already not allowed in many of the shows in which ATADA dealers sell.

Article X also states that, “ATADA does not regard items made for commercial or individual use by Native American artisans as sacred, or communal, regardless of age.” Defending this legal trade in Native American and other tribal objects is an essential task for ATADA, as a primary representative of the tribal art trade in the U.S. and internationally.

UPDATE ON THE 2017 STOP ACT

ATADA has not yet seen a text of the new 2017 STOP Act, although we are in discussions with some of the drafters of the coming legislation. We have already responded to a summary provided to us with what we believe is helpful criticism of some elements, and with praise for the removal of a number of harmful provisions and for its inclusion of a “voluntary returns” program. We are pleased that those involved in drafting the Act believe that a voluntary returns program such as ATADA has initiated will do more than any federal legislation to bring important objects back to tribes. ATADA would like to see a STOP Act that is constitutionally sound, does not jeopardize US citizens’ property rights, facilitates and strengthens sovereign tribal institutions and encourages tribes to enact their own laws.

ATADA’s own Voluntary Returns program continues to bring important objects back to tribes. To ATADA’s knowledge, every item returned through this program to tribes has been legally purchased and owned. All returns are voluntary. ATADA is working hard to obtain documentation from the tribes so that donors can receive an appropriate tax deduction for these gifts.

ATADA efforts, both legislatively and through the Voluntary Returns program, have been successful in raising public and Congressional consciousness of the importance of the lawful trade and of flaws in recent legislation, including the 2016 TAAR Act and the 2016 STOP Act.

 ATADA encourages members to send questions about ATADA’s policies and about the symposium to David Ezziddine at director@atada.org. When you write, please let us know if we may share your questions in a group answer via email to the membership.

Understanding Cultural Property: A Path to Healing Through Communcation

Save the Date!!  May 22, 2017 • Santa Fe, NM

When the 2016 STOP ACT was introduced, ATADA & SAR came together to create better communication and understanding of the controversial issues surrounding the proposed legislation. This May, ATADA & SAR will jointly present the symposium, Understanding Cultural Property: A Path to Healing Through Communication. 

This event is Monday, May 22, 2017, in the Eldorado Ballroom at the Eldorado Hotel in Santa Fe, New Mexico.

The event is open to the public; registration is just $35 for a full day (9-4:30).

This symposium is an important dialog for all people involved in the Native American art community, and beyond.  A full day of presentations and panel discussions will be given by tribal representatives, specialized legal counsel, art professionals, museum personnel, collectors, and various other interest groups.  Here are some topics slated for consideration throughout the day: national legal experts will cover the proposed legislative measures; tribal religious and government representatives will share their contemporary viewpoints; art market professionals and collectors will discuss collecting histories and the potential negative economic impact of unclearly written bills.

The goal is not only to inform the public about the importance, and primary consideration, of tribal rights to consultation and self-determination, but also to find positive and respectful, cooperative solutions with the national private art market that could actually enhance, rather than harm, southwest regional and tribal economic interests.  This momentous occasion will also afford ATADA the opportunity to introduce a developing Voluntary Returns initiative that seeks to assist in bringing privately owned, important tribal religious objects of cultural patrimony, directly back to the tribes. 

We should all be forward-thinking: this engagement hopes to produce more than political solutions—it aims to start a historical healing process, encourage tribal empowerment, and develop future understanding with a market that supports both antique and contemporary tribal artistic traditions. 

Background information on the law and the issues being grappled with: 

At SAR, Panelists Negotiate Repatriation and the Law

The School for Advanced Research (SAR), in Santa Fe, New Mexico, presented the final installment of a Speaker Series celebrating SAR’s 110th anniversary: an April 19th panel titled, At the Forefront of Repatriation: New Policy and Impact Beyond the United States. The program grappled with the specifics of proposed legislation drafted in response to the sales of Hopi, Zuni, Acoma, and Navajo artifacts. The Safeguard Tribal Objects of Patrimony (STOP) Act was introduced in Congress in 2016 expressly to halt export of Native American objects.

Panelists included Honor Keeler, Director of the International Repatriation Project for the Association on American Indian Affairs (AAIA); Gregory Smith, of Hobbs, Straus, Dean & Walker, a Washington DC Indian Law specialist firm, and Kate Fitz Gibbon, of Fitz Gibbon Law, a cultural property lawyer representing the Antique Tribal Arts Dealers Association (ATADA). Brian Vallo, Director of the Indian Arts Research Center at SAR, acted as moderator.  

Although the 2016 STOP Act failed to pass through House and Senate committees, an amended version is expected to be introduced in Congress later this year. The SAR panelists laid out their differences regarding this proposed legislation. Honor Keeler spoke movingly about the historic loss of artifacts through US government and private sector abuses, and questioned whether items collected over the last 520 years, even if collected legally, were collected with “informed indigenous consent.” She said that the existence of a market for Indian artifacts promotes looting. Making the right contacts with foreign governments was key to repatriation of ancestral remains, and she believed that the STOP Act would make a difference, since French courts did not recognize communally based claims by tribes or deal with them as sovereign entities. She felt that returning ceremonial items and ancestral remains was a human rights issue.

Gregory Smith noted the passage through Congress in 2016 of a non-binding joint resolution, which condemned illegal trafficking and stated that sacred items should be returned to the tribes. Passage of this resolution indicated clear bipartisan Congressional support for STOP, which was shared by the whole New Mexico delegation. Smith stated that tribes don’t like the emphasis on “ownership” and on current owner or collector’s rights of property. He asked, how do we define private property? Most of the time, the definitions of private property are hurtful to tribes and not in their best interest. He also noted that STOP has not yet been reintroduced, because it is being reworked…so the provisions aren’t set.  He described STOP as a blunt instrument meant to invoke conversation.

Fitz Gibbon agreed completely that ancestral remains and communally owned ceremonial objects should return to tribes, but said that STOP would not achieve that. She pointed out that despite the legislation’s intent to return artifacts to the tribes, it was not a clear declaration of ownership by the tribe but an export law. An export law would not actually strengthen the tribes’ legal position in the French courts, since France permits sale of objects from many nations with export laws. Furthermore, in the US, STOP could vastly expand the application of NAGPRA to private citizens, and deny American collectors the fair notice and due process required by the Constitution. She supported the tribes’ rights to keep secret information private, but since no list of sacred items was possible, according to the tribes, and there was no permitting system for the 568 US tribes, she questioned whether either exporters or US Customs officers could ever have the necessary knowledge to properly enforce the STOP Act, especially when a ten-year jail sentence could result.

Further, the law’s immunity provision implied that all collecting was illegal, when it was not, and telling collectors not to buy Indian art would not only negatively impact New Mexico’s economy and cultural tourism in general, but also frighten existing collectors into returning items that had nothing to do with religion. Native artisans dependent on sales were particularly vulnerable, as tribal leaders did not exclude new objects from the “ceremonial” category, and the STOP Act potentially covered all.

She pointed instead to the new Voluntary Returns Program initiated by ATADA, which, even after a short time, has been very successful in returning dozens of important ceremonial objects to the tribes. Combined with educating collectors and the public that certain items should not be sold, this Voluntary Returns program was a model for bringing items home in a respectful manner.

Regardless of disagreements regarding method, the discussions were historic first steps in bringing tribes and the art community together and in bringing key ceremonial objects back to the tribes.  As one audience member remarked, “It’s the best panel we’ve had in the whole series because people were willing to disagree with each other.” Another said that the difficult situation that national tribes are in is more than political, so there need to be more than just political solutions.

Presented by:

The School for Advanced Research (SAR) 
SAR is a research center located in Santa Fe, New Mexico, which supports advanced scholarship and creativity in the social sciences, the humanities, and Native American art.

The Antique Tribal Art Dealers Association (ATADA)
ATADA is an international organization whose art dealer, collector, and museum members are located primarily in the US. ATADA focuses on professional development and best practices for the trade in historic and contemporary tribal, ethnographic, and indigenous arts from around the world. 

This Symposium is made possible, in part, by the generous support of

Current information on confirmed speakers, panel titles and schedules will be updated on the Symposium Information page as it becomes available.  Or contact David Ezziddine at director@atada.org for more information. 

Downloads:

Update on the Safeguard Tribal Objects of Patrimony Act (STOP Act) and the Terrorism Art Antiquity Revenue Prevention Act

Update on the Safeguard Tribal Objects of Patrimony Act (STOP Act) and the Terrorism Art Antiquity Revenue Prevention Act

There are two bills currently before the Senate that are serous cause for concern for collectors, museums, and dealers in Native American and international ethnographic art. 

ATADA has already alerted its membership to the potential consequences of the STOP Act, S.3127/H.5854 which is currently before both House and Senate. 

The STOP Act amends NAGPRA to specifically prohibit the export of Native American and Hawaiian objects deemed tribal patrimony. The definition of tribal cultural patrimony under NAGPRA is an object has present religious and ceremonial significance to a tribe today.  

The STOP Act also makes it unlawful for any person to knowingly export from the United States any Native American “cultural items” obtained in violation of four existing U.S. statutes: NAGPRA, 18 USC § 1170, ARPA, and18 USC § 1866(b). A “cultural item” as defined in the ARPA is virtually any material remains of past human life or activities over 100 years old. To oversimplify a bit, the difference between an item that is lawful to collect and trade under ARPA and one that is illegal to trade is whether it was found or collected on private land, in which case it is generally deemed lawfully acquired, or found or collected on federal or Indian land in violation of law, including the 1906 Antiquities Act, when it not lawful to collect or trade.

The STOP Act also raises the penalty for a violation of any of the above existing laws from 5 years to 10 years. And finally, the bill adds a provision granting immunity from prosecution to anyone who “repatriates” an unlawfully obtained cultural object to the “appropriate” Indian tribe or Native Hawaiian organization within two years of the STOP Act’s implementation.

The STOP Act has no system for clearing artifacts that can be sold. The STOP Act does not identify the objects each tribe considers sacred or community owned. There are over 500 federally-recognized tribes. It is impossible for citizens to know what is deemed a cultural object by each tribe.

Proponents of the STOP Act have suggested that citizens can “ask the tribe” to determine if an item should be returned or can be sold. However, the law provides no permitting system, no staff or funding, no criteria, no standards of evidence, and no means of mediation or appeal.

The STOP Act’s 2-year “amnesty” window for the return of “unlawful” tribal cultural property by private collectors without prosecution implies that possession of all cultural objects is unlawful. The STOP Act is likely to cause unwarranted returns of thousands of lawfully owned and traded objects to tribes which do not want them. Collectors may be pressured to give up objects simply out of an abundance of caution. Alternatively, lack of clear criteria or means of compliance may result in virtually no returns at all.

ATADA has submitted testimony to both the House and Senate subcommittees on the STOP Act and is engaging directly with tribal governments to find better solutions to tribal concerns. Additional information on the STOP Act and contact information for legislators is linked below.

S. 3449, the Terrorism Art Antiquity Revenue Prevention Act of 2016

A second bill before the Senate, the Terrorism Art Antiquity Revenue Prevention Act of 2016, S.3449, poses a serious threat to US art collectors, museums and dealers in foreign ethnographic, antique, and ancient art. S. 3449 could overturn 40 years of US case law and make possession as well as trade in art from virtually any foreign country illegal under US law. 

Despite its name, the proposed law does nothing whatsoever to block terrorist funding. First, import of Syrian and Iraqi artifacts was already completely blocked by the Protect and Preserve International Cultural Property Act, signed into law by President Obama on May 9, 2016, as Public Law No:114-151. Second, there has been no evidence of any sales of Syrian or Iraqi art in the US that has supported ISIS or other terrorist activities.

The new proposed law, S. 3449, is a stealth attempt to end the international ethnographic and ancient art trade. It’s not the first and won’t be the last! The sponsor of the bill, Senator Kirk of Illinois, failed in his reelection bid, and no similar bill has been introduced in the House. It is therefore unlikely that there will be an attempt to pass the bill during the 2016 lame duck session. Nonetheless, ATADA is following the bill closely, and we anticipate that similar legislation will be introduced in the coming Congress in 2017.

What S. 3449 does:

  1. Section 2 amends the National Stolen Property Act (NSPA) to create special provisions for “cultural property.” “Cultural property” is broadly defined to include virtually all art and antiques, using the definition of cultural property in the 1970 UNESCO Convention. This includes antiquities more than one hundred years old. such as inscriptions, coins and engraved seals; objects of ethnological interest; pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); original works of sculpture in any material; original engravings, prints and lithographs; original assemblages and montages; rare manuscripts, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.); postage, revenue and similar stamps, singly or in collections; articles of furniture more than one hundred years old and old musical instruments.
  2. The threshold value to trigger criminal liability NSPA is reduced from $5,000 to $50. 
  3. Cultural property that has been removed or excavated in violation of local law will be considered to be stolen. Stolen property would include any object removed or excavated from a foreign country in violation of a foreign local law.
  4. Section 3(a) requires any person who seeks to import, sell or gift any Syrian or Iraqi cultural property in the US to provide to the Secretary of Homeland Security
  5. information, with supporting documentation, on the provenance of the property that includes, at a minimum, when and where the property was obtained, and such other information as the Secretary of Commerce and the Secretary of Homeland Security consider appropriate.
  6. Section 3(b) sets up a working group to develop regulations to require dealers of cultural property to document and report information on transactions in cultural property of Iraq or Syria, and where objects were acquired; to work with participants in international art and cultural property markets to develop a Federal Government database with information on cultural property and warnings about buyers, sellers, appraisers and others with a history of conducting illegal trade in cultural property, and consider providing participants in international art and cultural property markets with access to the database.

ATADA President John Molloy, has written to the heads of the Senate Finance Committee, where the proposed bill is under consideration, urging the committee to take additional testimony before moving forward with this hastily introduced and extremely damaging bill. Other museum, collecting, and trade organizations have done likewise. ATADA and other organizations must work together to be sure this ill-considered bill and others like it do not continue to be introduced into the Senate and House.

Testimony regarding STOP Act S.3147

On October 24, ATADA submitted written testimony on the Safeguard Tribal Objects of Patrimony Act of 2016 (STOP Act), S.3127/H. 5854. 

The full text of the testimony is available in .pdf form to download at the following link: 

On October 18, 2016, the U.S. Senate Committee on Indian Affairs held an Oversight Field Hearing on "The Theft, Illegal Possession, Sale, Transfer and Export of Tribal Cultural Items"

The following testimonies from that hearing are also available for download: 

Honor Keeler
Director, International Repatriation Project Association on American Indian Affairs

Governor Kurt Riley
Pueblo of Acoma

Governor Myron Armijo
Pueblo of Santa Ana