Parcours Symposium: Complete presentation by John Molloy

American Indian Art Magazine Cumulative Index - Now Available!

Attention all fans of American Indian Art magazine!

A cumulative index of Volumes 1-40 is currently available for download in PDF format from the magazine website. This is a great reference to quickly find articles on particular topics without having to thumb through your entire collection.

You can get your copy of the index by visiting: www.aiamagazine.com/issues_index

If you are missing copies in your collection, you can find back issues at: www.aiamagazine.com/back_issues

Binders and Bound Volumes are also available.

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

by Ron McCoy

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

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Pyramid at Tulum via Wikimedia Commons

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Click for Endnotes

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

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

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

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

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

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

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

Native American and Native Hawaiian Cultural Heritage Protection Act of 2018

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

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

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

Bill Reaffirms the Law and Focuses on Stopping Illegal Trade

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

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

Lawful Trade Recognized

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

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

How is Due Process Protected?

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

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

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

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

Which Items Will Require Certification?

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

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

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

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

Requesting Assistance from Other Nations

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

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

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

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

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

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

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

A Federalized Voluntary Returns Program

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

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

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

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

Summary:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Definitions:

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

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

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

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

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

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

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

Native American Art now in the Met's American Wing

With the opening of Art of Native America: The Charles and Valerie Diker Collection, Native American art is now on view in the American Art wing of the Metropolitan Museum of Art in New York City.

The exhibition runs through October 6, 2019

More information can be found on The Met website.

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Man’s Coat
c.1840 (Naskapi)

The Charles and Valerie Diker Collection of Native American Art, Gift of Valerie-Charles Diker Fund, 2017

Highlights from Parcours des Mondes 2018

If you were not able to attend this year, make plans for 2019!

Check out the highlight video for a glimpse at this year’s event.

Relive the unique atmosphere of Parcours des Mondes, the world's leading art fair for the arts of Africa, Oceania, Asia, and the Americas. This multiple-venue event is held in some sixty galleries located in close proximity to one another and is a rare opportunity to regale the senses, an experience rendered all the more pleasant by the Parisian Indian summer weather.