ATADA News, Spring, 2005 Archive

ATADA News, Spring, 2005

From the President

I am pleased to report that we had a very exciting board meeting in February in Marin. The board members are hard working and energetic with lots of new ideas about promotion and dissemination of important information concerning legislation that affects us all. You will be reading more about this in this Newsletter.

As regards promotion, there is one subject that I would like to discuss, a subject that is not only promotional, but is a cornerstone of ATADA membership. I am talking about the guarantee that we as ATADA members are expected to give each purchaser at the time of sale. This guarantee should describe all that we know about the piece being purchased: age, condition, history, restoration. This is not an option, it is a requirement to remain in good standing as a member. In making these guarantees available to our customers, we are protecting ourselves from any future questions and we are availing ourselves of a wonderful promotional tool.

Buyers are always going to feel more comfortable buying from ATADA members because we offer this guarantee. Please go to the ATADA website and familiarize yourselves with the wording of the guarantee.

Such guarantees will soon be available to all members along with sales receipts bearing the ATADA logo and your own information as well. More information on this will be forthcoming.

Remember to try to bring in three new members this year.

Merrill B. Domas

News from Arch Thiessen
ATADA's Webmaster

With help from the ATADA Theft Alert web page, two valuable beaded vests were recovered after being stolen from the Spanish and Indian Trading Company, Santa Fe.

The ATADA Newsletter is now indexed on the Resource Archive page is making it possible to follow recent court cases as reported in the press.

By accessing the new Legislative Alert page at www.atada.org it is now possible to find summaries and references to the major Federal Laws affecting dealers and collectors of antique American Indian and Tribal Arts.

In case you missed it on the Internet, a recent Legislative Alert follows:

...

You are receiving this e-mail because of your membership in ATADA. The ATADA Board of Directors has asked me to send the following message to the membership.

ALERT: Senate to expand the definition of Native American S.536 - full text is at http:/ /www.atada.org/S-536.pdf, see p. 15.

As early as this week (April 4-8, 2005) the US Senate will vote on S.536. In Section 108 of this bill, the Senate Indian Affairs Committee quietly and unanimously voted to amend NAGPRA's definition of Native American. No public hearings were held on this sweeping change.

This expansive definition of Native American sets the stage to overturn the Kennewick Man decisions rendered by the Federal District Court of Oregon and the Ninth Circuit Court of Appeals.

More than the Kennewick Man case is at stake. In any future similar discovery, human remains might be reburied without scientific examination. This would, in effect, block the application of the scientific method to inquiry about our Nation's pre-history.

Fax or e-mail your concerns to your state's Senators and Senate Majority Leader Frist. Ask them to delete Section 108 from S.536. (US Mail will not reach these offices in time). Every FAX or e-mail counts.

To obtain contact information for your state's Senators, go to the following URL: http://www.senate.gov/general/contact_information/senators_cfm.cfm

...text of proposed FAX to your Congressional Delegation follows... Voice your concerns - NOW!!...

Dear Senator ______

I am writing to you regarding Senate Bill S.536 titled "Native American Omnibus Act of 2005", introduced by Senator John McCain on March 7, 2005.

Senator _____. this Bill contains a drastic change at Section 108. No hearings were held on this and it has been treated as non controversial. Section 108 is a seemingly insignificant change to NAGPRA, however this is not the case. It represents a major change and one that should be thoroughly studied, with public comment, before a decision is made regarding it.

Adding "or was" after the word "is" in the definition of "Native American" in NAGPRA, results in the nonscientific assumption that all human remains found in the United States, that date prior to 1492, are human remains of ancestors of present day Native Americans. Under those circumstances the Native Americans would be able to prohibit scientific study of the human remains and cause same to be reburied without any study whatsoever. Had this change been in the law earlier, there would have been no study of Kennewick Man. Those remains would have been reburied at the direction of the American Indians without our learning that they are over 8,000 years old and non-Indian.

The scientists who opposed the immediate reburying of Kennewick Man presented an extraordinarily compelling case, under the current law, and prevailed. Accordingly, Kennewick Man, which has been determined to be a non-Indian, has been studied and will be studied further and may represent a new chapter in "the peopling of America." The change in Section 108, by adding the words II or was" would have given the American Indians the exclusive decision making power to immediately rebury Kennewick Man. That same power would exist as to future discoveries if the change in Section 108 is made. This would impede appropriate scientific study of the prehistory of America.

Please ask that Section 108 be removed from Senate Bill S.536 until the ramifications of it are thoroughly understood. A public comment period would provide you with the benefit of the Native American position on this and that of the scientific community. It would enable all members of the Senate to cast an informed vote on this crucial issue.

Thank you, Senator _____ for your consideration of this most important matter.

Sincerely yours,

_______

ATADA Board Meeting Minutes
February 24, 2005 San Rafael, California

Present:

Bob Bauver, Education/Museum Committee chair
Merrill Domas, President Roger Fry, Legal Committee co-chair
Bob Gallegos, Treasurer
Alice Kaufman, Executive Director
Brant Mackley, Vice President
Ramona Morris, Past President
Tom Murray, At Large
Arch Thiessen, Web Committee chair
Len Weakley, Legal Committee co-chair

Mike McKissick asked for permission to address the board about some "concerns." The first concern was about early entry/buying at shows.

ATADA president Merrill Domas echoed Mike's concerns with early buy, and it was decided that a Show Committee be formed to deal with this and related issues. Heidi Becker, Mike McKissick and Merrill Domas were asked to serve on the committee. The group's first task is to send a letter signed by the committee members to Kim Martindale, Marcia Berridge, the new owner of the Whitehawk shows, and Barry Cohen, expressing ATADA's points of view.

Two of the non-dealers on the board, attorneys Roger Fry and Len Weakley, were in favor of early buy. For them, they said, "it's a time issue." Merrill proposed a compromise: let the dealers come in and set up at 8:30 AM and let the early buyers come in at 11.

Mike also said that he knew that "some collectors had trust issues with some dealers."

Roger Fry replied that is hard for ATADA to police non-members.

Ramona suggested that ATADA members make better use of the ATADA guarantee. Methods of making the guarantee more attractive/ easier to use were discussed.

Bob Bauver pointed out that ATADA's by-laws state that members must supply identifying information on the pieces they sell and that" a new form could help us fulfill this obligation."

Tom Murray feels our guarantee is "not current" and said he would send a copy of the guarantee he uses to Roger.

Bob Bauver then discussed allocating ATADA's 2005 grants and scholarships. We are obligated, Roger reminded the board, to give away at least five percent of the ATADA Foundation's funds each year to legally suitable· (non-profit) recipients. The board agreed to donate $1,000 to the White River Valley Museum for an exhibit of baskets and $2,000 to the Marin Museum of the American Indian. Tom Murray agreed to try to find a small museum specializing in tribal art for a $1,000 donation [Editor's Note: he later nominated the Iris and B. Gerald Cantor Arts Center at Stanford University, which the board approved], and added that smaller donations are much more meaningful to smaller institutions. It was also agreed to give a $500 scholarship to the American Indian Art Institute in Santa Fe.

Arch Thiessen reported that two valuable vests that had been stolen from the Spanish & Indian Trading Co. in Santa Fe were recovered and returned to the gallery "with the assistance" of ATADA's theft alert system and web page.

Arch also said that he and Chad Tanner were working on producing a single list of members' names, addresses, etc., so that the Directory and the website information will be the same.

In addition, Arch has copied and indexed the Media File articles from past Newsletters. He is also preparing the new Legislative Alert "page for reading by the membership. The board got a preview of the page; Tom Murray called it II a good first time effort for people who want to do due diligence. Tom emphasized that members must keep abreast of "international issues" -- the issues covered on the Legislative Alert page -- and that he feels the antique tribal art business is on the verge of being legislated out of business."

Perhaps, Ramona Morris suggested, ATADA should write and post position papers on some of these issues. "We'd be the voice of reason," she said. We should identify issues, identify our position and put that on the website." Roger Fry agreed.

Merrill Domas then addressed the issue of show vetting. Brant Mackley said that at shows like Whitehawk, there just isn't time: It's not practical in six hours." At a Caskey-Lees show, he said, a two-day setup allows sufficient time for vetting. Roger Fry said this was a show issue and should be handled by ATADA's new show committee. The membership should also, Brant said, address the issue of full disclosure about restoration, conservation, etc, because this is required as part of the guarantee.

Advertising and marketing for ATADA was discussed next. Tom Murray suggested that instead of small ads, ATADA take out a more visually arresting two-page ad in a tribal art magazine to attract new members. It was also suggested that we take out group co-op ads in the Maine Antique Digest before shows. Alice Kaufman and Tom will work together to create ads that would be in July magazines, before the Santa Fe shows. Tom also suggested that we might put together and publish an ATADA catalog featuring 'our members' inventory, "with every member submitting one picture." Perhaps, he continued, Alex Arthur (of Tribal Art magazine) could coordinate the whole project and it should be tied in with advertising.

Brant Mackley said that our printer has a new inexpensive color printing process available and that perhaps we could look forward to color Newsletter covers in the future.

Bob Bauver spoke about the Lifetime Awards and there was a discussion of piggybacking the awards with another function, perhaps the NAASA event in October. Bob Bauver said he would contact NAASA, and a committee composed of Ramona Morris, Bob Bauver and Brant Mackley was formed to generate nominations for the awards.

Merrill Domas again requested that a membership phone bank be formed, where every member should contact three potential new members. Merrill said she would draft a letter to alert the membership to the project.

The prospect of holding another fundraiser in Santa Fe in August was discussed. The party would be held on the Saturday night of Barry Cohen's show, August 13. Yes, the board decided, let's have another party! Roger Fry and Len Weakley again offered their penthouse terrace at La Fonda as the party venue.

Gifting Pre-Act Eagle Feathered Objects

By William Fry, a third-year law student at the University of Toledo School of Law; he has studied Native American Law under long-time ATADA member Professor Richard Edwards, Jr.; he is the son of ATADA Law Committee Co-Chair W. Roger Fry. The author has an undergraduate degree in Anthropology and Spanish from Northern Arizona University. He can be reached at willfry@epimp.com or williamfry3@hotmail.com .

Recently, some questions concerning the legality of gifting "pre-act" eagle feathers were submitted by ATADA members. Therefore, this article will focus on the "holder's" property and gifting rights of lawfully owned but protected bald and golden eagles or parts. Some U. S. Fish and Wildlife offices have taken the position that it is illegal to gift lawfully owned eagles and parts unless the subsequent holder takes by "devise" (under a will) or applies for and receives proper permitting. However, upon further study and consideration of this issue, this author believes that no permit is required and that gifts may be made under appropriate circumstances. No other end result is rational or reasonable.

Before discussing the appropriate laws, it is important to understand that the Eagle Protection Act (hereinafter the Act) provides the Secretary of the Interior with the authority to promulgate and implement regulations for the protection of eagles. These standardized procedures are submitted for public comment in the Federal Register and then later codified in the Code of Federal Regulations (hereinafter the Regulations). Therefore, there is the statutory Act and there are codified Regulations that fill in the administration and enforcement "blanks" left out by the Act and Congress. However, rarely is the later codification of the Regulations completely synonymous with the original Act.

As you all know, bald and golden eagles are protected under the Act. The Act states "Whoever, within the United States [or jurisdiction of the US] ... without being permitted to do so as hereinafter provided, shall knowingly ... take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export, or import. .. " eagle parts shall be subject to criminal penalties. The Act further provides: "That nothing herein shall be construed to\prohibit possession or transportation of any bald eagle [or parts] ... lawfully taken prior to June 8,1940 [and any golden eagle or parts lawfully taken prior to October 24, 1962].

On the other hand, the standardized procedures governing eagles promulgated in the Regulations provide "you can possess or transport within the United States, without a federal permit" eagles and parts so long as they were "lawfully acquired" before June 8, 1940 and October 24, 1962 (respectively). Therefore, there is a contradiction between the Act as originally enacted by Congress and the procedures as codified in the Regulations by the Secretary of Interior.

An eagle "lawfully taken" clearly means the eagle or part needs to be taken from the wild prior to the date of the enactment and excepts the eagle from specific portions of the Act indefinitely. Notably, "Take" is defined for the purposes of all of the wildlife statutes as "pursue, hunt, shoot, wound, kill, trap, capture, or collect." However, an eagle "lawfully acquired" is broader in scope than "taken" and could be construed to mean that only the specific person who originally acquired the eagle prior to the enactment may thereafter own it legally.

It could also be construed to refer to how the current owner acquired the part rather than whether or not the part was taken in the wild prior to the Act. The latter positions are likely erroneous.

If the word "taken" was changed to "acquired" in the Regulations to alter the plain meaning of the Act, the change should be viewed as unconstitutional. The California Supreme Court recently stated that "administrative regulations that alter or amend the statute or enlarge or impair its scope are void." The marked difference between the use of the words could also be viewed as ambiguous. If so, the U. S. Supreme Court has stated that "the familiar rule [is] that, 'where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant.'"

Further, it is notable that The Convention on International Trade in Endangered Species (hereinafter CITES) also utilizes the term "acquired" in excepting "pre-convention" antiques from the operation of the act. However, the member nations subsequently realized that the term "acquired" was ambiguous as applied and amended the Treaty to state "the date on which a specimen is acquired be: for live and dead animals or plants taken from the wild, [or parts and derivatives thereof]: the date of their initial removal from their habitat [or for parts and derivatives; the date of their introduction to personal possession, whichever date is the earliest.]" The Supreme Court has accepted post-ratification interpretations of international treaties as legally valid and persuasive aids to its construction and interpretation. Although the definition of "acquired" under CITES is not legally binding on courts interpreting the provision in the Regulations, it is certainly persuasive authority that U. S. courts must take into account.

Undoubtedly, Fish and Wildlife is relying on the authority of the Regulations permit procedures in proposing that all subsequent holders apply for and receive permits. Under this view, a subsequent holder in gift would not be the person who originally "acquired" the piece legally and therefore, the permit procedures set forth in the Regulations would be applicable. However, this interpretation would constitute a misapplication of the Act and the Regulations.

The above argument that subsequent holders apply for a permit is precluded within the Act and the Regulations themselves. The Act and the Regulations provide (or "exceptions" and "exemptions". Even though the end result is the same, that certain legal requirements would not apply, there are logical and conceptual distinctions between the two categories that must be addressed. Please note that the two categories are not specifically demarcated as "exceptions" and "exemptions" and many courts perhaps incorrectly use the two categories interchangeably.

. Exception: the act of excepting something from a general rule that applies to a class of persons; applies to "pre-Act" birds and means the Act and the Regulation permit rules literally do NOT apply and will never apply.

Example: the Regulations state:

"You can possess or transport within the United States, without a federal permit: (i) any live or dead bald eagles or their parts, nests, or eggs that were lawfully acquired before June 8, 1940."

Please note this is solely a "limited exception" and pertains only to possession and transportation - the restrictions on sale, offer for sale, and barter still apply.

. Exemption: defined as a waiver, release, or discharge from liability; applies to "post-Act" birds and means the prohibitions outlined in the Act and the Regulations do apply, but through the Regulation permitting procedures, exemptions may be granted to remove the applicant from the general class of persons who are subject to the restrictions.

Example: The Regulations state:

"You may not take, possess, or transport any bald eagle, or any golden eagle, or the parts, nests, or eggs of such birds, except as allowed by a valid permit issued under this " part "

"In other words, the rules are bent when dealing with an exemption, but the rules simply DO NOT APPLY to someone who was never placed on the list, i.e., - excepted." Fish and Wildlife seem to confuse the two categories in their enforcement procedures. The subsequent taker by gift need not apply for any permitting because the eagle or part is "excepted" from the operation of the Act.

There is one final issue to address. In Andrus v. Allard, the Supreme Court rejected appellees "takings" argument stating, "The regulations challenged here do not compel the surrender of the artifacts, and there is no physical invasion or restraint upon them. Rather, a significant restriction has been imposed on one means of disposing of the artifacts." The "one means" referred to here is clearly a commercial transaction or a transaction for gain involving the artifacts. The Supreme Court states further, "In this case, it is crucial that appellees retain the rights to possess and transport their property, and to donate or devise the protected birds." The word "donate", in the traditional sense is defined as "to make a gift of; especially: to contribute to a public or charitable cause." Although "donate" is open to different interpretations, it is more legally sound that if you own all but "one strand" of your traditional bundle of property rights, then a transfer by gift to anyone should be legal. The oral arguments before the Supreme Court in the Allard case clarify and concede this point.

The Solicitor for the U. S. Government in the Allard case concedes that a genuine gift falls outside the scope of the Act in her oral argument.

. MRS. SHAPIRO: "That exemption would be lost for the article as soon as it entered into commercial activity, as soon as it was put on the market so that in fact the exemption in the Endangered Species Act and the Exemption here in the Eagle Act have the same scope."

. QUESTION: But I take it a genuine gift would be all right?

• MRS. SHAPIRO: Yes.

• QUESTION: Or an inheritance.

. MRS. SHAPIRO: Yes, under both. It is the commercial activity that poses the threat. It is the commercial activity that is banned." Clearly, the U. S. Government concedes the fact that genuine gifts of "pre-Act" specimens are not prohibited under the Act or the Regulations. Moreover, it is probable that the Supreme Court, in promulgating the Allard opinion, relied on the above exchange and· therefore specifically included that" donations" and II devises" were lawful activities in accordance with the Act.

The collector and dealer should note however, that the solicitor was questioned concerning Appellee's argument that a dealer could simply remove the feathers from the object, sell it to the collector, and then gift the feathers later.

. QUESTION: "What do you say about the hypothetical case adverted to by your colleague on the other side, that the vendor or the seller could simply take all the feathers off these artifacts and sell the artifacts without feathers and then make a gift of the feathers?

. MRS. SHAPIRO: Well, that, we think, would certainly be a violation. It would be an evasion of the act. The act prohibits the sale, exchange or bartering of the feathers.

• QUESTION: But not gifts.

. MRS. SHAPIRO: Not gifts and if it was part of the same sales transaction, merely separating the artifact would not make it a different sales transaction.

. QUESTION: Well, it would be a matter of litigating the facts.

. MRS. SHAPIRO: It certainly would. That is the ultimate question, is that the trier of fact [the jury] would have to decide whether this was the sale of feathers or a barter or exchange that was within the prohibitions of the statute."

It is clear that the Government does not concede the point and the Supreme Court took the position that the issue is a question of fact to be decided by a jury. Dealers and collectors should be wary of an exchange similar to that outlined above and consult an attorney first.

Regardless, based upon my reading and interpretation of the Act and the Regulations, gifting legally owned and "pre-Act" eagle parts is lawful.

KENNEWICK MAN UPDATES

Feb. 16, 2005
Northwest tribes have filed an appeal in the Kennewick Man case in hopes of being involved in a planned study of the 9,400 year-old bones. The story, "Tribes appeal bones," has been posted to our site at: http://www.kennewick-man.com/kman/ news/story /6178312p-6051857c.html

Feb. 17,2005
After a bitter nine-year court battle, scientists may have their first chance to study Kennewick Man this summer. The story, "Kennewick Man study outlined," has been posted to our site at: http://www.kennewick-man.com/kman/ news / story / 6181871 p-6056305c.html

April 18, 2005
An author writes about his attempts to prove a theory that Kennewick Man came from Japan by way of a boat. The story, 1/ Author explores Kennewick Man theory," has been posted to our site at: http://www.kennewick-man.com/kman/ news / story / 6389094p-6268130c.html

Media File

Excerpts from recent newspaper, magazine and Internet articles of interest to the Membership. All opinions are those of the writers of the stories and of the people quoted, not of ATADA. Members are encouraged to submit press clippings or e-mail links for publication in the next Newsletter.

On January 21, The New York Times reviewed two New York antiques shows. ATADA members were among the exhibitors singled out for special mention on both reviews.

Roberta Smith wrote a review of New York's Winter Antiques Show at the Seventh Regiment Armory called "A Global Map of Influences and Ideas." From her story:

"There is also outstanding Native American, Pacific Island and pre-Columbian material..." Smith calls a painted buffalo robe, circa 1850, at Donald Ellis's booth "commanding. Bisected by a string of horses," she writes, "this recently discovered work recounts one by one the heroic feats of the Crow Indian who made and wore it. Its elegant draftsmanship and weightless forms bring to mind cave paintings and make it a masterpiece of its kind.

"As the austere, highly focused display at Ellis suggests," Smith continues, "the less familiar the material, the greater the care tends to be taken with its presentation. This applies to the Throckmorton booth, where the eye is drawn to a row of imposing pre Columbian masks and figures in carved stone, and to Conru Primitive Art, where ingenious abbreviations of the human figure from Papua New Guinea, the Congo and South Africa hold sway."

On the same day, Grace Glueck wrote about the American Antiques Show at the Time Warner Center in a story headlined "Reminders of America's Many Pasts." From her story:

" ... stitching with colored glass seed beads makes a rare stunner at Trotta-Bono, one of three galleries at the show specializing in Native American art. A table cover of black cloth was made between 1875 and 1900 by Huron women of New York's St. Lawrence River area, under the tutelage of European missionary nuns. It bears a circular design of floral motifs as its centerpiece, with a multicolored scalloped band at the borders inflected by tiny flowers.

"Marcy Bums American Indian Arts, another new presence at the show, has covetable Navajo blankets on display, dating from 1865 to the 1920s. But the piece de resistance is a group of drawings by George Catlin depicting Indian characters based on his paintings. Six are shown here, from one of 10 albums he made for European presentation. In a preface to the albums, Catlin wrote of the 'fatigue and privation' he endured in visiting 50 tribes, but 'with the most complete success.' "

From the Santa Fe New Mexican, February 17, "Art dealer gets jail time for embezzling."

"Joshua Baer, 51, spent last weekend at the former Bernalillo County jail in downtown Albuquerque and will have to spend the next five weekends there, said Mary Catherine McCulloch, assistant U.s. attorney. Baer also received two more years of federal probation.

"Baer - owner of Joshua Baer & Co. - pleaded guilty to embezzlement in state District Court in Santa Fe in December and was given five years' probation, according to court records. McCulloch said the state case stemmed from Baer selling several American Indian pieces for former Securities and Exchange Commission Director Arthur Levitt without paying Levitt. In a phone interview Wednesday, Baer said he is paying restitution to Levitt's insurance company. 'I'm trying to put this matter behind me and settle it in an honorable way,' he said. 'I feel it's my obligation to do that.' "

"City by the Bay to Get a Trove of Oceanic Art" was the headline of Holland Cotter's February 26 New York Times story on San Francisco's new de Young Museum.

"When the de Young Museum reopens in October in Golden Gate Park in San Francisco," Glueck wrote, "it will be showing off not only a brand-new, quake-resistant building but a sensational addition to its collection, too.

"The museum is about to announce the pledged gift of a stunning collection of Oceanic art amassed over the last 40 years by John Friede, a New York-based entrepreneur in the health care field, and his wife, Marcia. The 350 pieces that will go on view at the beginning - including many of exceptional beauty and rarity and some of unsuspected antiquity - were drawn from some 3,000 objects from the South Pacific island of New Guinea that will come to the museum over time. The collection as a whole is estimated to be worth well over $100 million.

" 'It's the best collection of this art in private hands,' Eric Kjellgren, an associate curator and Oceanic specialist at the Metropolitan Museum of Art, said of the carved figures, masks, shields and musical instruments that crowd the couple's Westchester home and made it an international magnet for scholars, curators and dealers.

"Oceania is the collective name for the more than 25,000 South Pacific islands that divide ethnologically into Melanesia, Micronesia and Polynesia. Since the 19th century its art has attracted a passionate Western following. The experience of it transformed the life and work of Gauguin, inspired Matisse and contributed to Picasso's development of Cubism. Oceanic collections put together by Andre Breton and Paul Éluard in the 1920s shaped the shock-tactic aesthetics and the anti colonialist politics of French Surrealism, in ways fascinatingly detailed in Robert McNab's 'Ghost Ships: A Surrealist Love Triangle' (Yale, 2004).

"Yet Oceanic material is little known to the average art museum visitor. With a few exceptions, the most substantial holdings are in ethnographic institutions like the Field Museum of Natural History in Chicago and the American Museum of Natural History in New York, where "high art" status is in question. At the Met, Oceanic objects are isolated with other 'primitive' art in the Michael C. Rockefeller Wing of the Arts of Africa, Oceania and the Americas.

"The very term 'Oceanic' lumps together numberless individual cultures only beginning to be defined by hard-pressed scholars in a seriously under populated academic field. And the art itself departs in fundamental ways from Western tastes and expectations, particularly those of the standard temple-of-beauty museum.

"While unsurpassed in visual inventiveness and finesse, much Oceanic art is martial in purpose and sexual in content. Ritual efficacy rather than aesthetic contemplation is its goal. A cultural ethic of secrecy, combined with disruptions and suppression under colonial rule, can make the intended meanings of objects difficult to recover. The performance rituals, spoken narratives, body painting and tattooing that supplied an essential context for objects have disappeared.

"The Friede (pronounced FREE-dee) collection represents only one area in Oceania, but a significant one. New Guinea is the world's second-largest island after Greenland, the size of France and Spain combined. It is divided politically into two parts, independent Papua New Guinea and Irian Jaya, a province of Indonesia, and is home to thousands of languages and cultures.

"This diversity comes through with bewildering force in its art, which in the Friede collection ranges from a prehistoric stone sculpture of a bird, as abstract as a Brancusi, from around 3000 B.C., to a shield painted in the 1960s with the Pop-ish figure of the comic book character the Phantom. The bulk of the work, however, is made up of classic ceremonial and domestic objects, among them many of superlative quality.

"High on any list is a large processional bark-c1oth-and-rattan mask made by the Llema people in the Gulf of Papua. Its punchy designs in white and rust-brown pigment exemplify the curvilinear bent and subtle asymmetry of New Guinea design, which create an effect of optically disorienting movement. Masks of this type are thought to have been used only once, then destroyed. Perhaps the local presence of a European collector of artifacts in the late 19th century accounts for the survival of this one.

"Similar circumstances surround a magnificent feathered headdress made by the Mekeo people on the island's southeast coast. An assemblage of bird of paradise and cockatoo plumage attached to a cane armature and ornamented with the preserved bodies of birds, along with tortoise shells, hornbill beaks and human hair, it was collected in the 1880s for a private museum in Britain but was never unpacked from its shipping case. As a result, its fragile, almost floral luxuriance is in near-pristine condition.

"Certain pieces carry celebrity cachet, like a sculpture owned by the Dada artist Tristan Tzara and two owned by Breton. A bark-cloth painting of swordfish surrounded by tiny figures and suns belonged to the art historian Paul S. Wingert, a pioneer in Oceanic studies. Exquisite and fanciful, it would have entranced Paul Klee.

"More than 500 Friede objects once formed the personal collection of the art historian Douglas Newton (1920-2001), the influential first curator of the Met galleries that were named for Nelson A. Rockefeller's son Michael, an anthropologist who disappeared in 1961 at the age of 23 while on an art-gathering expedition to New Guinea.

"The Newton material is one reason the Met seemed a natural repository for the Friede collection, though there were others. 'The Met's New Guinea collection has wonderful things, but it also has major gaps,'

Gillian Gillison, an anthropologist at the University of Toronto, said. 'The Friede collection would have made it fabulous,' she added. 'Too bad for New York.' (The Met's Oceanic galleries are closed until spring 2007 because of renovations in the building.)

II 'Museum gallery space is at a premium in New York,' Mr. Friede said. 'My collection just wouldn't be a fit for the Met.' The de Young, with a new building and with holdings that come nowhere near the Met's encyclopedic range, has greeted the gift with open arms and included Mr. Friede in every phase of planning its installation. 'A clean blackboard is pretty appealing,' the de Young's director, Harry S. Parker III, said. 'In a museum as incomplete as ours, a collection can be given the kind of dominance it deserves.'

"Dominance in this case will mean a 5,000-square-foot permanent gallery named for the Friedes in a center-stage location in the new building. The museum will also co-publish a two-volume catalog of the collection written by Mr. Friede and other art historians. (The collection itself is named the Jolika Collection after the Friedes' three children: John, Lisa and Karen.) As part of the research for the book, Mr. Friede submitted 200 objects to the University of Arizona in Tucson for carbon-14 dating. Some of the results are startling and possibly history changing.

"For example, dates obtained from an impressive Sepik River mask, of a kind routinely assigned to the 19th and 20th centuries, ran from A.D. 660 to 890. Possible dates for a seated male figure from New Guinea's northwest coast spanned the 13th to 15th centuries. A female figure, her raised arms suggesting a filigree of feathers or flames, falls somewhere between the 15th and 17th centuries.

"To accept such dates could mean not only revising the chronology of an immense body of Oceanic art, but also possibly rethinking the notion, long an art-historical given, that much 'primitive' art was based on a concept of planned obsolescence and that its preservation in museums is in direct violation of its makers' intentions.

"Needless to say, these ideas, like so many others surrounding the art of Oceania, are intensely controversial. And so it is that many months before it officially arrives at its new perch on the Pacific Rim, a great collection of great Pacific art is already causing waves."

From The Art Newspaper, March 1, by Jason Edward Kaufman: "FBI sets up first national art theft squad in US; the eight-member team will model itself on similar units in Italy, France and Spain."

The story began, "The Federal Bureau of Investigation (FBI) has set up the first national art theft unit in the US. The eight member Rapid Deployment National Art Crime Team (ACT) consists of two agents in New York, two on the West Coast one in Philadelphia, and three in the middle of the country. Each will oversee cases in an assigned region, collaborating as necessary, with investigations coordinated from headquarters in Washington, DC.

" 'We're going to be working on consignment fraud, fakes, and interstate traffic in stolen property,' says Philadelphia-based Special Agent Robert K. Wittman, the team's senior investigator. His team's mission is 'to investigate and bring to successful prosecutions those who steal and deal in stolen art and antiquities and to recover those art objects.' The FBI would not disclose how much money is going into the initiative, but Special Agent Wittman says, 'The budget will be adequate to do what we need to do.'

When asked why the FBI has set up the new unit, a spokesman for the agency said: 'One of the driving factors was the looting of the National Museum in Baghdad. Orders were issued from senior executive management to approach this in a manner consistent with that of our international partners.' France, Spain and Italy all have dedicated art-theft divisions, Special Agent Wittman says, 'but the US-the biggest consumer country in the world for art has never had one. Now the FBI recognizes the need for this type of team.'

"The Department of Justice has assigned two special prosecutors to assist the art theft unit: Robert Goldman, assistant US attorney in the Eastern District of Pennsylvania, and Jane A. Levine, assistant US attorney in Manhattan. They will advise other US attorneys and local law enforcement officers, give opinions as to whether or not there is a violation of federal law, and prosecute cases if a local prosecutor cannot be found.

"The FBI prosecutes art theft under the same laws that apply to thefts of automobiles, jewelry and other consumer items. But as Special Agent Wittman explains, 'You can't investigate stolen art or antiquities the same way you would a stolen tractor-trailer load of DVD players. It requires specialized training and knowledge about antiquities and the art world, how works of art are bought and sold. Also you're dealing with international borders so you're going to have to liaise with police departments worldwide.'

"Interpol, the international police agency, ranks art theft fourth in international crime, behind arms sales, drug trafficking and money laundering. But after the terrorist attacks of 11 September 2001, US Customs was folded into the newly formed anti-terrorist Homeland Security Office and it disbanded its art unit.

"Special Agent Wittman says his team will 'cover the whole gamut of cultural property protection, from paintings to Native American material to Iraqi antiquities.' In January, he and his team trained for a week in Philadelphia. Barnes Foundation security director Nicholas D' Agostino tutored the agents on Impressionist paintings, Philadelphia Museum of Art conservator Mark Tucker gave a lecture on conservation techniques, and University of Pennsylvania Museum archaeologist Clark Erickson discussed looting in Peru. The team also met with other industry experts. Further training relating to the federal Native American Graves Protection and Repatriation Act is planned in the Southwest.

" 'We've had one recovery so far,' says Special Agent Wittman, describing the retrieval last November of 85 paintings and sculptures worth $1.5 million stolen from a Saint Louis art storage warehouse. The team is about to announce other recoveries. 'We're interested in information on art thefts he adds. 'If someone knows a situation that has occurred we wouldn't mind a phone call. We're here to work.' "

On March 30, 2005, Jack Smith took yet another look at the new NMAI in The New York Times's special section on museums.

"The History Is Here, but the Action Is Elsewhere' read the headline; the story partly focuses on the museum's gift shop and on American Indian art, which Smith calls "arguably the most dynamic sector of the art world in general".

"Whether it suggests a striated Southwestern mesa carved by millennia of wind, sand and water," Smith wrote, "or a mammoth heap of flapjacks, there's no denying that the National Museum of the American Indian, which opened last September, is a striking addition to the landscape of the National Mall in Washington.

"Yet the difference between this and other museums devoted to the American Indian transcends its architecture. Past museums have been assembled by curators or ethnographers interpreting history from a predominately white perspective; here, it's the Indians doing the talking.

" 'This is the first museum to be created in collaboration with the tribes and dedicated to expressing the native voice,' said W. Richard West Jr., the executive director, himself of Cheyenne and Arapaho descent.

"Fair enough, the well-meaning tourist might tell his spouse as they move into the core of the museum, eager to acquire new wisdom. They begin by taking in a series of exhibitions depicting legends, histories and forces that affect their lives today, with commentary and videos from two-dozen tribes. Farther along, there is a handsome exhibition of paintings and sculptures by Alan Houser and George Morrison, two important figures of American Indian modernism, and a display of jewelry designed by former Senator Ben Nighthorse Campbell, Republican of Colorado, who sponsored the federal legislation establishing the museum. Other attractions include an interactive exhibition of artifacts and works by contemporary artists throughout the corridors and display rooms.

"An hour or so later, the visitors are pausing to share their impressions. Yes, American Indians have been oppressed, which is a shame, but they knew that. The tribes revere nature, but they have heard that before too. It was harder to say why Hawaiian and Brazilian crafts were exhibited ill a museum about American Indians, but otherwise there were few surprises.

"But there is one more stop to make - the gift shop, where revelations await. 'Holy smoke signals, Marge,' our tourist blurts. 'They want $20,000 for a pot!'

"A connoisseur may point out that it is no mere pot, it's a Margaret Tafoya vase, reasonably priced at $19,500, but that's beside the point. After all the inoffensive 'Dances With Wolves' homilies encountered in the museum, here is something that has finally caught their attention. As it should; it wasn't long ago that American Indian art was dismissed as souvenirs, crafts or curios; today it is arguably the most dynamic sector of the art world in general.

"Antique works that once sold for the price of a portable TV are routinely gaveled down at auction for multiples of their high estimates. At Sotheby's most recent American Indian auction in June 2004 a Tsimshian mask from the Pacific Northwest estimated at $60,000 was acquired for $243,200; a New Mexico pine cupboard estimated at $18,000 went for $54,000, while a San Ildefonso polychrome jar, pegged at $30,000, brought $84,000.

"Works by contemporary artists have experienced the same success, said Leroy Garcia, owner of the Blue Rain galleries in Santa Fe and Taos. 'Eight years ago, paintings by Tony Abeyta, a Navajo artist, sold for between $1,000 and $12,000; today they cost between $5,000 and $30,000. Preston Singletary does blown-glass work; five years ago, his work sold for between $1,000 and $5,000; now it's $5,000 and $30,000, easy. In the late 1970s potter Tony Da got $3,000 to $5,000 for his polychrome turtles. Now they can cost $100,000.'

"Then there's Mr. Garcia's wife, Tammy, a potter and sculptor. Thirteen years ago, Mr. Garcia said, one of her large vessels could fetch $5,000. 'Now they sell for between $50,000 and $100,000.' "

Andrea Fisher, of Andrea Fisher Fine Pottery in Santa Fe, recalled buying 'storyteller' dolls from the late Helen Cordero, a Cochiti who created the -genre. 'In 1990, she sold her storytellers for the same price; it didn't matter what the size or how many children the doll carried, they all cost $1,250. Now an authentic Helen Cordero storyteller brings between $12,000 and $18,000.'

"No less heartening, Ms. Fisher said, is the emergence of forms once suppressed by white dealers and traders. Among these, she said, are the caricatures of white tourists and missionaries whom the Pueblo potters first encountered in the early 1900s.

The more popular exponent of this genre is a Cochiti potter, Virgil Ortiz, who also designs purses and clothes for Donna Karan. 'He does figures like nuns with whips, bare rear ends and fishnet stockings. Ten years ago, these works sold for about $1,500. Now those same pieces cost $10,000,' Ms. Fisher said.

"Today, the cachet of Indian art is such that, under the Indian Arts and Crafts Act of 1990, any artist representing his work as Indian must show federal or state recognition or risk a $250,000 fine. No matter what the artist's ethnicity, however, there will be no nuns with whips any time soon at the National Museum of the American Indian, much as Mr. West would enjoy them.

" I would love to show some cutting-edge art,' said Mr. West. But this is not New York, it's Washington. And this isn't a gallery, it's the Smithsonian, on the National Mall, and our audience has different expectations. Our mission is to show that native peoples aren't part of American history, we are still here and making valuable contributions to American society.'

"Sometimes, it seems it's enough just to be here. How else to explain the excitement over Felipe Rose, better known as the Indian chief frO£) the music group the Village People? 'He really was Native American - a Lakota Sioux,' said Thomas Sweeney, the museum's director of public affairs. So in January, the museum honored Mr. Rose at a ceremony at which it accepted his gold record commemorating the group's contribution to music, the disco ditty 'YMCA.' At first glance, the 1978 hit appears to have little to do with American Indian culture, but everything to do with the thinking behind the museum. As a museum official said in a press release about the event: 'There is an absolute need to represent the diversity and range of contemporary Native People and their accomplishments.'

"Not every American Indian sees it this way. 'The N.M.A.I. claims to speak for native Americans, but they're actually a threat to Indian identity. They're trying to dilute our heritage and redistribute it among people we have nothing in common with,' said David A. Yeagley, a Comanche activist who writes for frontpagemag.com, a Webzine founded by David Horowitz, a former leftist turned conservative. "If they're a museum of the American Indian, how can they include natives of Hawaii and Brazil? The only thing they have in common with American Indians is they're not white.'

"Simple, Mr. Sweeney explained: 'It's a hemispherical view of native America. There are commonalities among the native people that transcend geography. For instance, the Mexican Indians from Oaxaca speak a language that seems to be based on the language of the Sioux.'

"Yet it still doesn't explain why, as Mr. Yeagley pointed out, the phrase' American Indian' has virtually disappeared from the official language of an institution named for this group. In a message in the inaugural issue of the museum's magazine, Mr. West spoke of his dream to build a truly native place on the Mall; of travels among his fellow native people; and of instilling a truly native spirit in the museum, dodging the I word. Likewise, the museum's announcement of its own opening refers to a native viewpoint, native cosmologies, native artists, native boats and the native people of the Western Hemisphere without once mentioning American Indians, except in the museum's name.

"Fortunately, for the tourist searching for something more edifying than skirmishes over political correctness, there is the cafeteria. Called Mitsitam, which means 'Let's eat!' in the language of the Piscataway and Delaware people, it features native fare, including pumpkin soup with puffed wild rice, quahog clam chowder, ash-roasted sweet corn on the cob, maple-roasted turkey with cranberry and crabapple relish and yucca fritters with chili slaw (delicious)."

"Another bone of contention over Kennewick Man," read the headline for Kate Reilly's editorial in the Seattle Times on April 4, yet another point of view on the tricky wording of the latest version of the bill.

"Kennewick Man is poised to tell his secrets," Reilly began.

"Almost nine years after the 9,300 year-old remains were found on the banks of the Columbia River and a fierce legal battle, federal courts agreed unequivocally scientists should be able to study Kennewick Man.

"However, U.S. Sen. John McCain has colluded with those who want to stifle the stories of similar old bones and the light they can shed on the earliest Americans and where they came from. The Arizona Republican, who is chairman of the Senate Indian Affairs Committee, supported a sweeping policy change in Senate Bill 536, which is billed erroneously as a technical corrections bill.

"At the risk of invoking our former president's imbroglio, the issue really does boil down to what the definition of 'is' is.

"The Native American Graves Protection and Repatriation Act currently defines 'Native American' as 'of, or relating to, a tribe, people, or culture that is indigenous to the United States.'

"That wording was key to the scientists' victory in federal court, because it required proof of connection to modern tribes. But tribes who sought to bury Kennewick Man could not prove a link. In fact, limited studies found the remains more closely resembled the Ainu of Japan than modern, Native American tribes. In response to the federal court ruling, the Indian Affairs Committee approved SB 536, which would insert two seemingly innocuous words into the repatriation law. It would read: ' ... is, or was indigenous .... ' That means modern tribes could claim remains with no discernible link to them except that they were found in an area where the tribes lived.

"Proving a connection over more than 400 generations is problematic. How can we know the extent of early migration 10,000 years ago? "If a possible connection between Kennewick Man and the Ainu is substantiated, would the tribes really want to deprive the Ainu of news of their long-lost wandering relative?

" 'The effect is to push science and scientists out of the picture,' says Alan Schneider, a lawyer for the scientists in their federal court battle. 'The issue would be solely between the government and the tribes.'

"A member of the committee, Sen. Maria Cantwell, D-Wash., raised concerns about such a substantive policy change being tucked into a technical corrections bill. But she voted for it because of other items in the bill. Another Northwest senator, Republican Gordon Smith of Oregon, also serves on the committee.

"The Society for American Archeology, while generally supportive of the change, objected to a similar effort last year because there was no hearing:' The society said, ' ... we are strongly opposed to the process through which this amendment is being put forward.'

"The battle over Kennewick Man and other ancient remains, found and yet to be found, is a battle between sincere intentions. Many tribes believe Kennewick Man and other ancient remains are ancestors. It disturbs them because the remains are not buried in accordance with their beliefs.

"The repatriation act is a righteous law that sought to put an end to desecration of Native American burial sites and to return ancestral remains and artifacts to descendants.

"But the scientists are not grave robbers with ill intent. Their values are to preserve the bones and study them in the least intrusive way possible. Among them is Doug Owsley, curator and division head for physical anthropology at the Smithsonian's National Museum, who has studied more recent remains to facilitate repatriation.

"The repatriation law does not adequately address remains like Kennewick Man and others exceptional in their age and physically distinct from modern-day tribes that would claim them. U.S. Rep. Doc Hastings, D-Pasco, previously introduced legislation to amend the repatriation act to ensure these ancient remains not linked to modern tribes could be studied.

"He set the effort aside, pending the federal court case. But given this threat to scientific inquiry in the Senate, he should consider reintroducing it - and push this debate back into the open before the secrets of the earliest Americans are stifled."