Editor's Note: S1400 and HR3211 are the bills in the Senate and House that are attempting to further confuse and complicate the very sensitive issue of the ownership of Indian artifacts. Noting below the Committee for Cultural Policy's fine analysis of these bills which describes in detail why these bills won't do what they are intended to do.. It is not surprising that politicians in their zeal to advocate for their constituencies are not as concerned with the fallout as they are with making a big explosion on the front end. So if you care about individual property rights this issue might warrant a call to your representative or senator.
STOP Act Introduced to Penalize Exporting Indian Artifacts
A bill has been introduced in the Senate that would prohibit the export of Native American and Hawaiian objects deemed tribal patrimony. Senate Bill 3127, the Safeguard Tribal Objects of Patrimony Act of 2016 (the “STOP Act”), makes it unlawful for any person to knowingly export from the United States any Native American “cultural object” obtained in violation of four existing U.S. statutes: NAGPRA, 18 USC § 1170, ARPA, and18 USC § 1866(b).
The bill 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 highly publicized French auctions of Hopi, Acoma, and Navajo ceremonial items triggered the drafting of the proposed bill. An “in rem” forfeiture was filed July 20, 2016 against the shield (see below) in New Mexico federal district court.
The STOP Act’s congressional sponsors have stated that it will address tribal concerns without impeding the rights of collectors to own, buy, and sell lawfully acquired Native American art and artifacts.
It is not clear that by making export of an object obtained in violation of ARPA or NAGPRA a crime, the bill adds much, if any, additional legal protection to Native American tribal artifacts or even to sacred objects. Trafficking of an object obtained in violation of ARPA or NAGPRA is already a crime. The best way to achieve a proper balance between retaining objects important to tribes and allowing free trade in others may be through direct consultation with the tribes to refine the terms of the STOP Act.
As it is now written, the STOP Act will make it a separate crime to export not only sacred or ritually significant objects, but also any type of Native American artifact if the artifact is over 100 years old and came out of federal or Indian lands after 1906. It is unavoidable uncertainty about the origins of artifacts, not knowledge of unlawful origins, that will most worry collectors and the art trade.
Hundreds of thousands of Native American objects entered the stream of commerce since the 1880s, and many have been passed through multiple owners over decades. How is a current owner to know if an object might be claimed as sacred by a tribe or claimed as coming from federal or Indian lands by the federal government?
At an art law seminar in Santa Fe, NM on July 29, 2016, attorneys who have represented the Acoma Pueblo suggested that if in doubt, owners could ask the tribe. At the same time, they acknowledged that although some types of objects, such as ceramics, are generally accepted as non-ritual, some of these might turn out to be ritually significant if they were used in a particular ceremony.
The question remains: even if it was feasible for a private owner to contact the presumed originating tribe before selling or exporting an object – and even if the tribes were willing to provide a firm answer – how would tribal governments cope with the enormous volume of objects currently encompassed by the STOP Act?
Tribes and the collecting community should work together to make clear the objects covered in the STOP Act.
It is in the interest of Indian art collectors and dealers to work with tribal communities to obtain clarification on what items tribes are claiming, and on what basis the claims are made. It is in the interest of the Native American and Hawaiian communities to assist in making good laws by identifying exactly what is their cultural patrimony and what is not. A forthright declaration of exactly the types of objects for which repatriation is sought would likely ease concerns about the apparent breadth of the proposed legislation, and do much to ensure compliance with its terms. It would also encourage repatriation of the artifacts most sought by the tribes.
Existing laws already enable a variety of tribal claims and protect sacred objects.
ARPA is based primarily on where the object came from. It is already a crime under ARPA to buy or sell an object that is taken without a permit from federal or Indian lands after 1906, the date of passage of the American Antiquities Act. (ARPA was not passed until 1979, but it is an “umbrella statute” that makes it a crime punishable under ARPA to traffic in an object obtained in violation of any federal, state, or local law. Despite the acknowledged fact that the Antiquities Act was almost never enforced until passage of ARPA in 1979, no amount of time will make that object lawful, whereas an identical object that was found on private land is lawful to buy and sell.)
ARPA covers a very broad range of objects – basically anything made by human hands that is over 100 years old, based on a rolling date. When ARPA was first passed, it covered items older than 1879. Today, it covers items older than 1916.
Ritual and sacred objects are another matter. Such items may already be claimed under NAGPRA, if taken from federal or Indian lands after 1990, or a civil suit for replevin may be filed by a tribe for a communally owned object. Essentially, the tribes can claim superior title to objects that are meaningful to current religious practices, even against private owners and downstream good faith purchasers, and regardless of where they were “found.” Tribes have had the ability for many years to seek the return of privately owned objects that the tribes claim as “cultural patrimony,” that is, objects that are communally owned by the tribe, and cannot lawfully be sold by an individual tribal member, even if that tribal member lawfully possesses them.
There are no measurable standards or criteria to identify objects covered by the STOP Act.
The STOP Act appears to encompass a very wide range of objects (see below), far greater than the types of “sacred” or “inalienable” objects of cultural patrimony whose recent export has angered and upset the people of Acoma Pueblo, the Hopi and the Navajo.
No tribes have made public lists of missing items, or identified which types of items they consider religious or non-religious or cultural patrimony or not. Since passage of NAGPRA in 1990, US museums and institutions that receive federal financial support have been required under federal law to catalog all Native American human remains and ritually significant items and submit these lists to tribes to allow the tribes to request repatriation. Even with federal guidance and institutional academic expertise, this process has taken decades. In the end, different museums have returned different ranges of objects. This variety of standards poses additional questions and ambiguities for Indian art collectors and the trade.
There is no evidentiary standard for proof of superior title by a tribe.
Like other legislation pertaining to tribal artifacts, the STOP Act once again fails to set forth criteria for determining whether an item is the property of an individual and therefore something that can be lawfully sold, or if it belongs to the larger community, and cannot be sold or abandoned without permission of the group. It does not address the legal status of the many important cultural objects that tribal communities sold when they adopted Christianity or because of early 20th century pressure by the US government to abandon traditional ways.
(In 1883, Secretary of the Interior Henry Teller issued rules establishing Courts of Indian Offenses to prohibit Native American ceremonial activity under pain of imprisonment. Teller ordered Indian agents to discontinue dances and feasts and to compel medicine men to halt their practices. Teller’s rules prohibited anyone less than 50 years old from being present at feasts and dances. Missionaries encouraged the destruction of paraphernalia used in tribal religious celebrations. At various times in the early part of the 20th C, Native Christian groups also encouraged people to destroy relics. It was only in 1978 that the American Indian Religious Freedom Act gave Native American religions the same rights given to others.)
What makes an object “cultural patrimony”?
There is also debate about whether objects are truly traditional cultural patrimony or authentic religious objects. Several of the Hopi katsina sold in Europe in recent years have been identified as fakes or pastiches by knowledgeable observers, yet some of these also were claimed by the Hopi to be inalienable cultural patrimony.
In past cases involving tribal claims to “cultural patrimony,” US courts have given great deference to the testimony of tribal elders, holding that items were cultural patrimony owned by Native American communities rather than individuals. This has been the case even when other tribal elders have disagreed.
Essentially, the Safeguard Tribal Objects of Patrimony Act appears to reinforce the idea that if a Native American community says now that an item is sacred, it is sacred, regardless how long ago it was sold, or under what circumstances.
A cooperative partnership and equal application of the laws can enhance compliance.
One can understand that Native communities are reluctant to share information about items they consider sacred. Nonetheless, the severity of the ten-year sentence for unlawful export proposed by the STOP Act would argue for some evidentiary standard for conviction.
The Acoma shield withdrawn from the most recent Paris auction was a very unusual case. It was voluntarily withdrawn by the auction house because it was specifically identified as having disappeared from the home of a particular family, on the basis of an affidavit executed by a family member who had been a child at the time. This is more evidence than has been presented for other objects sold in recent years at a foreign auction.
Native American communities that wish to take advantage of stricter laws should also be responsible partners in ensuring that laws are respected within the tribes. In the past, most tribes have been unwilling to report unlawful sales or theft of cultural property by tribal members or to identify the circumstances in which unlawful sales occurred. While Acoma Pueblo has made sincere efforts to enforce its own laws regarding community-owned objects, not all tribes have been diligent in policing their own members.
Complaint for In Rem Forfeiture Filed Against Acoma Shield in Paris Auction
On July 20, 2016, a civil action was filed in U.S. District Court in New Mexico to seize the shield voluntarily removed from the Paris auction in May 2016 in United States of America v. Acoma Ceremonial Shield described by EVE Auction House as Lot #68 “Bouclier de Guerre Pueblo probablement Acoma ou Jemez XIX siecle ou plus ancien cuir.” The case is 1:16-cv-00832-MV-KBM. An “in rem” forfeiture is a civil judicial forfeiture action filed against the property itself, rather than against an individual or entity.
Terms of the Safeguard Tribal Objects of Patrimony Act
What items does the Act cover? More meaningful definitions might resolve much of the controversy surrounding the proposed law.
The STOP Act penalizes export of any Native American cultural object obtained in violation of NAGPRA, 18 USC 1170, ARPA, or 18 USC 1866(b).
The STOP Act defines a cultural object as fitting one of three categories (descriptions from the source statutes in italics):
“cultural items as described in NAGPRA, 25 USC 3001”:
25 USC 3001(3)((3) “cultural items” means human remains and—
(A) “associated funerary objects” which shall mean objects that, as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains either at the time of death or later, and both the human remains and associated funerary objects are presently in the possession or control of a Federal agency or museum, except that other items exclusively made for burial purposes or to contain human remains shall be considered as associated funerary objects.
(B) “unassociated funerary objects” which shall mean objects that, as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with individual human remains either at the time of death or later, where the remains are not in the possession or control of the Federal agency or museum and the objects can be identified by a preponderance of the evidence as related to specific individuals or families or to known human remains or, by a preponderance of the evidence, as having been removed from a specific burial site of an individual culturally affiliated with a particular Indian tribe,
(C) “sacred objects” which shall mean specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents, and
(D) “cultural patrimony” which shall mean 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, 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 Native Hawaiian organization and such object shall have been considered inalienable by such Native American group at the time the object was separated from such group.
An “archeological resource as defined under section 3 of ARPA, 470bb(1)”:
(1) The term “archaeological resource” means any material remains of past human life or activities which are of archaeological interest, as determined under uniform regulations promulgated pursuant to this chapter. Such regulations containing such determination shall include, but not be limited to: pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal materials, or any portion or piece of any of the foregoing items. Nonfossilized and fossilized paleontological specimens, or any portion or piece thereof, shall not be considered archaeological resources, under the regulations under this paragraph, unless found in archaeological context. No item shall be treated as an archaeological resource under regulations under this paragraph unless such item is at least 100 years of age.
Or “object of antiquity protected under section 1866(b).”
“(b) …any historic or prehistoric ruin or monument or any other object of antiquity that is situated on land owned or controlled by the Federal Government without the permission of the head of the Federal agency having jurisdiction over the land on which the object is situated…”
Image: Senator Martin Heinrich, speaking on the STOP Act.