The ATADA Foundation is proud to announce publication of a new 32-page booklet, Native American Art and the Law: A Collector’s Guide.
The booklet contains the fundamental legal information that traders and collectors need to navigate the maze of federal laws affecting in Native American art and artifacts. It outlines the laws and penalties and describes the range of materials that are legal to own and trade.
The booklet gives historical and policy background on the law and is written in user-friendly, non-technical language. It covers the history of collecting Native American artifacts in the U.S. and basic U.S. laws, including ARPA and NAGPRA, that concern arrowheads and points, feathers, ceramics and other materials. It is illustrated with antique photographic details from public and private sources. The text is by New Mexico attorney and author Kate Fitz Gibbon with design by Karen Riley.
The booklet is available for $10. Orders are accepted at http://www.ATADA.org/publications.html#collectorsguide).
This page is intended to further ATADA’s longstanding commitment to public education and to ensure the highest standards of professional conduct among our members.
ATADA supports federal efforts to halt illegal digging and trafficking in stolen art. ATADA members have worked closely with legislators to pass NAGPRA and other laws that protect Native American interests and to preserve cultural heritage. ATADA’s publicly available “Theft Alert” page and email notification system is currently the most effective U.S. resource for recovery of stolen ethnographic art and has been remarkably successful in recovering artworks.
The information below is designed to assist ATADA members and the general public to understand current laws affecting art and artifacts. This page does not provide legal advice.
This is a time of change. Nothing can be considered static - and numerous modifications to the laws or their applications are being considered. We hope to provide here frequently updated information about proposed changes that may affect collectible art and art objects. ATADA may soon take a more proactive role in promoting changes in the laws. There may be an action proposed that requires the immediate attention of the membership. This page also provides a place where we post alerts of pending activities and an archive of recent legislative alert e-mails on this subject.
We believe strongly that all citizens should participate in setting U.S. policies on cultural property and we urge you to make your voices heard.
Key points to consider when buying or selling Native American art:
Buying and selling most Native American art is legal.
· An item is not illegal to trade simply because its source is unknown. An artifact is illegal to trade in if it was unlawfully taken from federal or Indian lands.
· Lawfully possessed items from collections made prior to 1979 are exempted from the trafficking restrictions under ARPA.
· Other laws restrict or prohibit trade in certain materials or types of items. Consider the possible effects of all laws before buying, selling, or attempting to donate Indian art.
What materials is the object made from?
· The simplest rule is - don’t buy, sell, or display Native American or Hawaiian human remains. If the item includes Native American or Hawaiian human remains from federal or Indian lands, title rests in an affiliated tribe as determined by NAGPRA. Other local, state and federal cultural preservation and cemetery laws may apply.
· Since 1940 (bald eagle) or 1962 (golden eagle), it has not been legal for an individual to possess feathers or parts of birds initially killed or collected after those dates. Regardless of the date they were acquired, these materials are not legal to buy, sell, or barter.
· Bald eagle feathers (before 1940) and golden eagle feathers (before 1962) are legal to possess, transport, and give away, but a sale may not be disguised as a gift. Eagle feathers acquired under a permit may not later be transferred.
· If the object includes feathers from other bird species, ivory or tortoise shell, check the list of prohibited migratory birds and the laws covering restricted trade in marine mammals and endangered species linked in the main article
o Most wild bird feathers are not legal to possess or trade.How old is the object?
o Migratory bird feathers acquired before 1918 are legal to own but not to buy, sell, or trade.
o Items made of endangered species less than 100 years old are not legal to sell.
o Fossilized Alaskan ivory is legal; worked objects made from fresh walrus ivory by an Alaskan native are legal to buy and sell; raw ivory is not.
What social or communal character does the item have? Was it possibly used in religious ceremonial?· Objects from federal or Indian lands with a religious or other social function that belong to a community and are inalienable from it are protected under NAGPRA.
When was the item first collected?
· Ask for the prior ownership history in writing with your receipt. The prior ownership history may help to establish that the item was lawfully owned prior to passage of ARPA in 1979.
· Because of the more than 130 years of “tourist” trade in Native American artifacts, many objects in circulation have no documented ownership history.
· If the seller does not know the earlier history or can give you only limited information, ask the seller to include that information on your receipt.
Where was the item first purchased or collected? Was it found on private lands or on federal or Indian lands?
Determine if the artifact meets one of the possible exclusions:
· The artifact was found on private lands;
· The artifact was originally acquired prior to 1906, the date of the first law regulating collecting activities on federal or Indian lands;
· Subsequent to 1906, it was legally acquired through a permit issued to a museum or scientific organization and later deaccessioned;
· Certain surface-found items, such as arrowheads, are legal to collect from federal land and to trade.
Common Sense Advice:
Collectors and dealers of historic or archeological objects should obtain and preserve records of the location of discovery of all objects. Whenever possible, keep records of when, where and how objects were acquired, and identify previous owners. Do not buy, sell, barter, trade or attempt to donate art or artifacts that are known to have come unlawfully from federal or Indian lands after 1906.
Short summaries of the major provisions of laws impacting the trade and collecting of Native American and other ethnographic art are listed below. Despite every effort to maintain accuracy, something will be lost in reducing dozens of provisions to just a few paragraphs. We have therefore added links to the full texts of the laws and when feasible, to regulations. We urge you to check these links for additional definitions of terms and possible applications of the law.
Many state and federal government websites provide helpful background information and advice to the general public. Some of these are referenced under the individual statutes listed below. We have also linked websites that provide alternative viewpoints on cultural heritage and cultural policy. The Art and the Law section of the ATADA website is in development: we welcome your input, questions, and suggestions for improvement.
The following are omnibus Web resources for U.S. domestic and foreign nations’ laws covering art and artifacts.
-Official copies of U.S. laws are located at http://www.gpoaccess.gov/uscode/index.html.
-For official copies of regulations, see the Federal Register and the Code of Federal Regulations at http://www.gpoaccess.gov/index.html.
-A useful, single-site compendium of unofficial copies of domestic and foreign laws related to cultural property may be found at the website of the Cultural Policy Research Institute at http://www.cprinst.org/Home/cultural-property-laws
-An extensive compilation of foreign laws covering cultural property may be found on the UNESCO Database of National Cultural Heritage Laws, http://www.unesco.org/culture/natlaws/index.php?&lng=en
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There is a unique relationship between the arts community and government in the United States. In general, U.S. laws recognize the important contribution of a free trade in art and ideas to U.S. cultural life.
Federal and state governments have supported a free trade in art since the time of the American Revolution. Individuals have been encouraged to collect and to study the Native arts as well as the flora and fauna of the American continent since the time of Thomas Jefferson, who was the nation’s first serious collector of Native American art and artifacts. U.S. artists and art dealers have always operated in a free market.
The U.S. art trade has always been relatively unrestricted in comparison to the rest of the world. All U.S. art that is legal to trade is legal to export (with the exception of a few products protected under international agreements on endangered species). Like books, works of art enter and exit the U.S. without customs duties or special regulation.
U.S. arts institutions and museums are also largely free from government regulation or supervision. Most arts institutions began as community-based, grass-roots entities rather than top-down federal projects. Despite their unofficial status, U.S. museums are recognized by federal and state governments as the primary providers of cultural education to the public. For the most part, museums are privately run and funded. Philanthropists and collectors are encouraged to provide basic funding and enrich museum collections through tax-deductible donations. Even those cultural institutions that legally act as federal agencies, such as the Smithsonian museums, receive the majority of their funding as voluntary contributions from the American public.
One important consequence of this unique system is that the U.S. has the largest, most diverse, publicly involved and enthusiastic arts community in the world. Another is that art dealers, scholars, collectors, and the museums that eventually receive their collections continue to play important – and necessary - roles in maintaining a vital and independent U.S. artistic life. This role is reflected in government policies that encourage public participation in the arts and in the content of U.S. law.
How do laws restrict the art trade? In the last thirty years, there has been a sea change in how Americans view antiquities, archaeology and the materials that constitute “cultural heritage.” More than one hundred years ago, when the first law was passed to create national monuments and protect certain archaeological sites, it established a permit structure to regulate scientific study by museums and scholarly institutions. Native interests were barely mentioned in Congressional debate. Today, although the destruction of archaeological sites remains a primary element of the laws, statutes also give increasing deference to Native American rights and recognize particular Native interests in tribal lands. Past abuses are acknowledged and respect is guaranteed to human remains. Community ownership of ritual objects can trump more traditional property rights under common law.
Today’s application of the laws concerning U.S. cultural objects has a consciousness – and some would say a conscience – that did not exist when earlier laws were written. The popularity of Native American artifacts throughout the U.S. and the influx of tourists into the Southwestern United States beginning in the 1880s created an almost completely unregulated market. Pawnshops, Native sellers on reservations and Indian traders placed literally tons of artifacts onto the market each year. Laws protecting archaeological sites were almost never enforced and illicit materials mixed with legal artifacts from private lands. Records were rarely kept until the late 1970s, when the importance of preserving archaeological sites first became an important public issue, and the Archaeological Resources Protection Act was passed.
U.S. laws give broad protection to objects found on federal and state lands. Today, even tourists know that pot hunting on federal land is illegal and that no one should pick up a potsherd even lying on the surface. The laws that affect trade in materials that have circulated in the market for decades are much more difficult to follow with certainty because in many if not most cases, the actual origin of artifacts is unknown, and probably unknowable.
A determination that an object – even one that has circulated in the market for a long time - was found on federal or Indian land can make that object unlawful to sell, trade, or even donate to a museum. A virtually identical object from private lands may be perfectly legal to buy or sell. The fate of objects with unidentified origin remains to be seen, but it seems logical to assume that the predominant perspective of American law, “innocent until proven guilty” will remain intact and that only objects that can be shown to have originated on federal or Indian lands will not be lawful to trade in.
Numerous laws that affect collectible objects are listed below. The laws are complex. Some material may be defined as illegal to sell or purchase under any circumstances or illegal to sell in interstate or international commerce. Many laws overlap, and several, including the Native American Graves Protection and Repatriation Act (NAGPRA) and the Archaeological Resources Protection Act (ARPA), have provisions that extend their provisions to trafficking or excavation that violates any other state or local law. This has the potential to enormously expand the federal laws’ scope and effect. If an artifact is obtained in a manner that is unlawful under state or local laws – later purchase, sale, or even donation of the artifact may also become a violation of ARPA or NAGPRA.
Some U.S. laws may appear to have only tangential application to trading in Native American objects, in part because they were passed many years ago in order to address completely different issues. Nonetheless, dealer and collectors must exercise real caution to remain within these laws.
Traditional Native arts may be made from a variety of protected materials from currently endangered species protected under the Migratory Bird Treaty Act, the Bald and Golden Eagle Act, the Marine Mammal Protection Act, and the Endangered Species Act.
The Migratory Bird Treaty Act (MBTA) illustrates the ways that an old law can have an unanticipated effect on the art trade. The MBTA was passed in 1918 to implement treaties between the U.S. and other countries to protect migratory birds from commercial destruction. Prosecutions were focused on baiting and commercial hunting. Recently, the MBTA has been used to allege that sale of an old Native American object decorated with even a single migratory bird feather is a criminal act, although sale of a similar object without feather decoration would be legal. This and other laws based on protecting wildlife are discussed in more detail below.
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Congress has enacted three major pieces of legislation that were specifically aimed at preserving archeological and culturally important sites on federally held public lands. These laws are the Antiquities Act of 1906, the Archeological Resources Protection Act of 1979, and the Native American Grave Protection and Repatriation Act, enacted in 1990. Each of these laws evolved out of the inadequacies of its predecessor.
The first law enacted was the Antiquities Act of 1906. The 1880s and 1890s were the heyday of the commercial pothunter. During that time many thousands of artifacts had been removed from sites for sale to collectors and to US and foreign museums. The Antiquities Act was intended to preserve archaeological sites for scientific study by US institutions in the future by creating a permitting system to regulate digs and limit excavation to recognized public and private institutions.
The Antiquities Act provided for the protection of "any historic or prehistoric ruin or monument, or any object of antiquity, situated on lands owned or controlled by the Government of the United States…” but did not define exactly what was meant by these terms.
Punishment for violation was light: not more than $500 fine, imprisonment not more than 90 days, or both. Prosecution was almost nonexistent; from 1907 until 1931 there were only two recorded successful prosecutions under the Antiquities Act. There were only ten convictions under the Antiquities Act from 1906-1972. The focus of prosecution was always on illicit digging and on the actual destruction of sites, not on the widespread trade in Indian artifacts.
The Antiquities Act was invalidated for vagueness in the 9th Circuit, which includes site-rich Arizona and Utah, in 1974 in the Diaz case. The 10th Circuit, which includes Colorado and New Mexico, upheld the Antiquities Act in 1979 in Smyer, after which the Act was superseded in large part by the Archaeological Resources Protection Act (ARPA). The Supreme Court denied certiorari on appeal in Smyer, leaving the issue of validity and the conflict between the holdings of the 9th and 10th Circuits unresolved.
The Antiquities Act is otherwise still in effect, and it is used along with ARPA to establish criminal liability for trafficking in artifacts that were unlawfully excavated before passage of ARPA.
Congress passed ARPA in 1979 after invalidation of the Antiquities Act in the 9th Circuit. ARPA established criminal felony sanctions to deter "unauthorized excavation, removal, damage, alteration, or defacement, or trafficking in of archaeological resources." In addition to providing far higher penalties for violation, ARPA clarified uncertainties in the earlier Antiquities Act by providing specific definitions of terms and establishing a one hundred-year age threshold for objects covered by the new act.
Under ARPA, an “item of archaeological interest” need not ever be buried, nor, at this point, be older than from 1908. The law defines an “archeological resource” as an object . . . “capable of providing scientific or humanistic understandings of past human behavior.” An enormous body of Native American arts made for the commercial market, from Hopi Revival pottery to turn of the century Indian baskets made for sale at county fairs, now meets the technical standards of ARPA. ARPA is now thirty years old, and as time passes, more and more 20th century materials will be subject to the law.
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 an archaeological context. (16 U.S.C. 470bb(1))
In both the Act’s statement of purpose and a “grandfather” clause, ARPA declared a public interest in “fostering cooperation between governmental authorities, the archaeological community, and private individuals having collections of archaeological resources and data which were obtained before October 31, 1979,” the date of passage of the Act.
In consequence of this provision, it has generally been assumed for the last thirty years that an artifact that could be shown to be from a pre-1979 collection and that was not known to originate on federal or Indian lands was lawful to trade. In light of apparent assumptions made in at least one recent raid, there are indications that the government may attempt to place a burden of proof of lawful possession on an owner, rather than the government having the burden of proof to show that an artifact was unlawfully acquired. ATADA believes that the courts are unlikely to agree with this argument.
If successful, such attempts would defeat Congress’ express purpose of enlarging the availability of Native American and Hawaiian resources for study and create tens of thousands of “orphan” objects, unable to be bought, sold, donated or inherited simply because they lack an identifiable provenience. Since “trafficking” in artifacts has never been per se illegal, a policy about-face would place museum and scholarly access to an important category of American heritage at risk. Worse, this approach would potentially criminalize innocent behavior on the part of the thousands of collectors who have acquired materials that have circulated in a largely undocumented market for more than a hundred years.
The prohibition against trafficking in archeological resources in ARPA specifically excludes acts related to removal of arrowheads located on the surface of the ground. ARPA regulations define arrowhead as “any projectile point which appears to have been designed for use with an arrow.” Word has reached ATADA that some federal personnel are now citing collectors who gather surface finds of larger projectile points and other tools and weapons, although such surface finds were not cause for issuance of citations in the past.
Congress has upped the penalties for ARPA over time. Penalties for a criminal conviction under ARPA vary according to the commercial or archeological value of the archeological resources involved and the cost of restoration and repair of such resources that have been damaged. If that cost is less than $500, penalties include a fine of "not more than $100,000 or imprisonment for not more than one year, or both." However, if these costs are greater than $500, the penalty shall be not more than $250,000 in fines or imprisonment not exceeding two years, or both. Conviction of subsequent violations could result in higher fines or imprisonment not exceeding five years.
The maximum penalty for a civil violation of ARPA is determined by calculating the archeological damage to the area or the commercial value of the materials and adding either, but not both, to the cost of restoration and repair of the materials or the area that was damaged.
Where the person assessed a civil penalty has committed any previous violation of any prohibition or of any term or condition included in a permit, the maximum amount of the penalty may be double the cost of restoration and repair plus double the archaeological or commercial value of archaeological resources destroyed or not recovered.
(In 1988, Congress had amended ARPA to "simplify prosecution of cases under the law" by reducing the monetary threshold of archaeological value of disturbed sites required to make violations of the Act a felony from $5,000 to $500. The government was having difficulty in getting convictions because some juries refused to believe that grave robbers and casual excavators were doing $5,000 worth of damage.)
Readers should note that in contrast to the standard of proof beyond a reasonable doubt required in a criminal case, civil cases are heard before an administrative judge and require proof based on preponderance of the evidence. Violations limited to the removal of arrowheads located on the surface of the ground are not subject to the penalties prescribed under ARPA regulations.
ARPA also covers artifacts obtained in violation of any other federal, state or local law, which brings in the Antiquities Act, state laws against trespassing or theft in general, as well as unlawful acts involving cultural property on state lands.
The complete text of this law, as amended, can be found at http://www.atada.org/archeores.html.
The Native American Graves Protection and Repatriation Act was passed in 1990 as a way to correct past abuses of Native American rights, particularly the collection of Native American human remains and ritual objects by U.S. federal repositories, science museums and academic institutions. NAGPRA also guaranteed the continuing protection of graves and other sites important to Native American tribal culture.
The Act has two main objectives:
(1) to protect Native American or Native Hawaiian ownership rights to items of cultural significance and remains and objects in burial sites on federal and tribal lands, and
(2) to provide for the repatriation of culturally significant items that are currently held by federally supported museums and other educational institutions.
The Act grants title to human remains and associated burial items to lineal descendants and then to tribes. The Act applies to all culturally significant materials that are excavated or discovered on Federal or tribal lands after November 16, 1990 and makes trafficking in Native American human remains and cultural items a criminal offense.
NAGPRA states that removal or excavation of Native American human remains or cultural items from federal or tribal lands may only be done with a permit issued under the Archaeological Resources Protection Act. There must be consultation with the appropriate Native American or Native Hawaiian organization and ownership and right to control materials that are removed rests with the appropriate kin or tribal organization.
The most likely case to be brought under NAGPRA against an art dealer is not illicit digging or the grisly trade in human remains, but one involving trade in a “cultural item.” Under NAGPRA, it is a crime to knowingly sell, purchase, or transport for sale or profit any Native American cultural items obtained in violation of NAGPRA or any other provision of federal law.
The Act defines “cultural items” very broadly. “Cultural items” include "human remains" and "associated funerary objects" (objects that, as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with specific individual human remains either at the time of death or later in a ceremonial act and that are now in the custody of a museum) and also "unassociated funerary objects" (those funerary objects for which the human remains with which they were placed intentionally are not in the possession or control of a museum or Federal agency), "sacred objects," and "cultural patrimony."
Under the law, “sacred objects” are ceremonial objects needed by Native American religious leaders for the practice of Native American religions by their present day adherents. "Cultural patrimony" means an object having ongoing historical, traditional, or cultural importance central to the Native American group itself. “Cultural patrimony” can include objects that are legally possessed by individual Native Americans but cannot be sold or given away because the community regards the material as community rather than individual property.
Whether an item falls into the category of “cultural object” is necessarily subjective and in the eye of the beholder. As part of a prosecution or defense, tribal elders may be called in to give their expert opinion on whether an object is culturally significant or communally owned. In the case of many objects, the difference between an object subject to NAGPRA and one that is not may not be obvious or ultimately, empirically provable. For example, it may be based on theories of how the object was previously used or whether it was likely to have been blessed.
Even if a cultural item was originally sold before NAGPRA came into effect, the government can argue that it was embezzled by a tribal member who lawfully possessed it but did not have legal title to sell it (see 16 U.S.C. 641 below). Its resale post-1990 could also be a violation of NAGPRA. Here again, there would be issues of knowledge and possible confusion with apparently legitimate, lawful activity.
NAGPRA's ownership provision applies only to items found on federal or tribal lands after November 16, 1990: owners continue to hold legal title to collections of materials from private lands excavated at any time, up to today. In contrast, a court has held that the repatriation provision did not impose date or location limitations: this means that regardless of when an object was first excavated on federal or Indian land, a claim under NAGPRA against a museum may be made by an affiliated tribe. There is an exception under the law for items which were excavated, exhumed, or otherwise obtained with full knowledge and consent of the next of kin or the governing body of the tribe: in these cases, title does not revert to the kin or tribe.
NAGPRA regulations also prohibit knowingly selling, counseling, procuring or soliciting others to procure items excavated or removed in violation of NAGPRA or “any other provision of Federal law.”
Penalties are fines up to $10,000 or imprisonment up to one year if the commercial or archaeological value of the archaeological resources is less than $500. Over $500, there can be fines up to $20,000 or up to two years imprisonment, or both. In a second violation the fine can be up to $100,000 or up to five years imprisonment, or both. “Commercial value” is the value of an object on the market; “archaeological value” is an estimate of what it would have cost United States to engage in full-blown archaeological dig at a particular disturbed site or can be based upon the full cost of restoration of a damaged site.
Links for further information on NAGPRA:
The NAGPRA Act:: A copy of the NAGPRA Act
Service NAGPRA Website: http://www.cr.nps.gov/nagpra/INDEX.HTM
Some legal, ethical and scientific issues raised by Kennewick Man: http://www.burkemuseum.org/booknow/kennewick
A non-Indian repatriation-advocacy site: http://www.friendsofpast.org/
A Native American position on the Kennewick Man decision - "Stealing Bodies, Stealing History" - is updated in the Sept 10, 2008 edition of Indian Country Today posted by Suzan Shown Harjo.
A pro-repatriation plea can be found at http://www.repatriationfoundation.org/
A Senate Report that is relevant for the application in practice of NAGPRA: http://www.atada.org/Senate_Report_101-473.htm
Keepers of Culture: An overview of real-world workings of NAGPRA by Roger L. Echo-Hawk, Assistant Curator, Denver Art Museum, 2002
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18 U.S.C. 641 (1994) Willful and knowing theft of government property with a value greater than $100.
This statute applies to theft or embezzlement of any “thing of value” of the United States or any department of the U.S. The theft provision can apply to items stolen from federal or Indian lands. The embezzlement provision of this law was originally focused on the possibility that organized crime would be attracted to the profits of Indian casino gambling.
However, in the context of the art trade, this statute has been applied in cases where a Native American sold an object that they had a legal right to possess, but not to sell because the item was held to actually belong to the tribal community. It has been used in cases involving objects such as ritual masks or medicine bags, which the possessor or a family member who inherited it sold to someone outside of the tribe.
The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater. If more than one item or “count” is involved, these are combined to form an aggregate value.
If the value of the item is $1000 or more, the penalty violation is up to ten years in prison and as much as a $10,000 fine for a first offense. If the value is more than $100 but less than $1000, the penalty is imprisonment for less than one-year and up to $1000 fine, or both. 18 U.S.C. 641 has a five-year statute of limitations.
18 U.S.C. 1361 (1994) Destruction of government property in excess of $100
This law protects any property of the United States or an agency or department of the U.S., or any property being manufactured or constructed for the U.S. from willful or attempted depredation. "Depredation" has been defined in cases as the act of plundering, robbing, pillaging or laying waste. This law prohibits damage to both real property (lands, sites, resources under the land, forests, etc.) and personal property. Simple adverse possession (possessing without right of possession or ownership) of personal property is not covered under this particular statute.
This is a specific intent crime, and the government must prove that the defendant acted intentionally, with knowledge that he was violating a law. However, the government is not required to prove that a defendant knew the property belonged to the government. The penalties are tied to the extent of the property damage. The penalties can be very high, in part because this statute has been used to respond to terrorist acts. If the damage exceeds $100, the defendant is subject to a fine of up to $250,000, ten years imprisonment, or both. When property damage does not exceed $100, the offense is a misdemeanor punishable by a fine of up to $100,000, one-year imprisonment, or both. 18 U.S.C. 1361 has an eight-year statute of limitations.
Note that if artworks or artifacts were originally acquired in violation of one of the above statutes, even many years before, the government might argue that a later trade in such unlawfully acquired materials violated ARPA. Soon after ARPA’s passage, when penalties under ARPA were substantially lower than they are today, there were cases in which defendants pled guilty to violating ARPA in order to avoid the more severe penalties under 18 U.S.C 641 and 18 U.S.C. 1361.
Federal law restricts interstate commerce in migratory birds, bald or golden eagles, endangered or threatened species, and any wildlife that is taken, possessed, transported, or sold illegally in a State or foreign country. These restrictions apply to live or dead animals, their parts, and products manufactured from them. Additional state laws parallel or establish additional provisions protecting wildlife: there are at least fifty separate state and federal statutes that protect eagles alone. The U.S. is signatory to a number of international conventions concerning wildlife, of which the CITES convention, with 175 signatory nations, is the most important. Short summaries of the purpose, impact on the art trade, and penalties of major U.S. legislation regarding wildlife follow.
The Bald and Golden Eagle Protection Act (BGEPA) prohibits any form of possession or taking of both bald and golden eagles. The law has both criminal and civil sanctions as well as an enhanced penalty provision for subsequent offenses. Further, the BGEPA provides for the forfeiture of anything used to acquire eagles in violation of the statute. The statute exempts the use of eagles or eagle parts for exhibition, scientific, and certain limited Indian religious uses from its prohibitions on possession.
A 1962 amendment allowed Native Americans from federally registered tribes access to eagles for use in religious ceremonies through a permitting system. There have been legal challenges to the amendment arguing religious freedom issues, mostly without success. Native Americans have also voiced numerous complaints about the quality and availability of feathers obtained through the permitting process.
The BGEPA does not allow anyone to possess, sell, purchase, barter, or to offer to sell, purchase or barter, at any time or in any manner, any bald eagle or any golden eagle, alive or dead, or any part, nest, or egg. Interstate transportation, export and import are also prohibited. The BGEPA is strictly enforced, even against Native Americans. The government must prove that a defendant acted knowingly or with wanton disregard for the consequences of his act.
Criminal violation results in a fine of not more than $5,000 or imprisonment not more than one year or both. However, second or subsequent convictions result in a fine not more than $10,000 or imprisonment not more than two years. Each taking or other act prohibited by this section with respect to a bald or golden eagle is a separate violation, and the multiple violations can result from a single incident, such as killing two eagles. While it is unlikely that multiple prosecutions would be based on each feather ornamenting an artifact, it is certainly possible that multiple convictions could be obtained, for example, for possession of multiple decorated artifacts. Also note that one-half of the fine, up to $2500, could be paid to a person giving information. Civil penalties of up to $5000 per violation may be assessed; each violation is a separate offense in a civil violation as well.
Possession or transportation of any bald eagle or any part of one lawfully taken prior to June 8, 1940 is not prohibited, but sale, barter, etc. of an eagle part taken prior to 1940 would still constitute a violation.
Important Cases: In Andrus v. Allard, 444 U. S. 51 (1979), the Supreme Court held that the narrow exception in the BGEPA for "possession and transportation" of pre-existing eagles and eagle artifacts did not extend to sale of lawfully obtained artifacts. The Court found that there was clear Congressional intent to prohibit any commerce in eagles. The prohibition on commerce in eagle artifacts did not constitute an unconstitutional taking because despite removing the ability to sell the property, there remained other viable economic uses from simple possession, such as displaying it and charging others a fee to view it. The Court did not address the ban's obvious interference with investment-backed expectations, noting that the ban served a substantial public purpose in protecting eagles from extinction.
In U.S. v. Kornwolf, 276 F.3d 1014 (8th Cir. 2002), some ATADA members supported the legal expenses of the plaintiff. Kornwolf owned an American Indian headdress and Sioux dance shield, both containing golden eagle feathers. Kornwolf came into possession of the artifacts through his great uncle before October 24, 1962, the effective date of the amendment including golden eagles within the BGEPA. Kornwolf was also convicted of violating the Migratory Bird Treaty Act. Kornwolf appealed the district court's holding that the acts did not cause an unconstitutional taking of his property. The Supreme Court refused to hear this case, leaving the district court’s holding in place.
· For more information on the Bald and Golden Eagle Protection Act see http://assembler.law.cornell.edu/uscode/html/uscode16/usc_sec_16_00000668----000-.html
· For information on the applicability of the 5th amendment, see http://supreme.lp.findlaw.com/constitution/amendment05/16.html
· For an article from the ATADA Newsletter, Summer, 2003, Vol. 13 No.3 giving advice on the Eagle Feather Law, see http://www.atada.org/Resource_Archive.html#Feathers_and_the_Law.
· For an article from the ATADA Newsletter, Fall, 2004, Vol. 14 No.4 by the legal committee see http://www.atada.org/Resource_Archive.html#legal1.
· For a story on the decision of the Supreme Court in the Kornwolf case, see http://www.atada.org/news.html#eagles.
The Migratory Bird Act is the U.S. implementing legislation for conventions regarding the protection of migratory birds executed between the U.S. and Canada, Mexico, Japan, and Russia. Among the 1043 bird species naturally occurring in the U. S. and its possessions, 868 species (83 percent) are protected by the MBTA, 75 species or subspecies (9 percent) are protected in all or a portion of their range by the Endangered Species Act (ESA), 16 U. S.C.1531, and 43 species (5 percent) are protected by both laws. All of the 175 species not protected by either the MBTA or the ESA belong to groups not covered by any of the migratory-bird treaties (e.g., all of the Galliformes and introduced species as well as island species belonging to groups not covered by the MBTA).
Past prosecutions under the act have invariably been applied to eagle feathers (included within the listed species) or to commercial hunting, baiting, or slaughter to protect crops. Nonetheless, there are indications that the law may be strictly applied to dealers or collectors of Indian artifacts in selective prosecutions. This law also applies to the sale, barter, transportation etc. of antique items with migratory bird feathers collected prior to passage of the MBTA.
Under section 703 of the act, it is a crime to “at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, any migratory bird, any part, nest, or eggs of any such bird, or any product, whether or not manufactured, which consists, or is composed in whole or part, of any such bird or any part, nest, or egg thereof...”
The US Fish and Wildlife Service Pacific Region Web Site states: " These four treaties and their enabling legislation, the MBTA, established Federal responsibilities for the protection of nearly all species of birds, their eggs and nests." ATADA has received reports of Fish and Wildlife Service agents confiscating feathered artifacts without testing for the type of feathers contained.
Misdemeanor violation of the MBTA is a strict liability crime, and applies not only to the taking and killing of birds but also to transportation or sale of any bird part. Therefore, sale or barter of an artifact with even a single feather or claw decoration from a listed bird species would be a violation of the act. An individual would not need to be aware that the feather came from a listed species, or even of the existence of the MBTA. Upon conviction of a misdemeanor, an individual could be fined not more than $15,000 or imprisoned not more than six months, or both.
A felony violation requires knowingly taking any migratory bird with intent to sell, offer to sell, barter or offer to barter such bird, or selling or offering for sale or barter any migratory bird and conviction may result in a fine of not more than $2,000 or imprisonment not more than two years, or both.
The advice from the ATADA Law Committee is: Under no circumstances should eagle or migratory bird feathers be offered for purchase, sale, or barter, or be imported or exported. Of course, this includes bird parts, such as talons and even nests and eggs. The strictest application of the law would render the sale of a migratory bird feather, even one picked up off the ground, a crime. There is no exception for antique Indian objects containing these parts, even objects that were acquired years ago.
Complete text of the MBTA available at
The Migratory Bird Treaty Act is summarized at http://www.atada.org/migtrea.html or http://laws.fws.gov/lawsdigest/migtrea.html
A list of species protected by the Migratory Bird Treaty Act is available at
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The Marine Mammal Protections Act protects marine mammal species and their habitats in an effort to main sustainable populations. The statute outlines prohibitions, required permits, criminal and civil penalties, and aspects of international trade in marine mammals. Administration of the act is by the Department of Interior for sea otter, walrus, polar bear, dugong, and manatee. The Department of Commerce is responsible for cetaceans and pinnipeds, other than the walrus. With certain specified exceptions, the Act establishes a moratorium on the taking and importation of marine mammals as well as products taken from them, and establishes procedures for waiving the moratorium and transferring management responsibility to the States.
The regulation of trade in ivory is an important legal issue for collectors and dealers. Sale or exchange of fresh walrus ivory is forbidden. Beach-found ivory may be registered and is legal to own, but may not be bartered or sold.
Note that fossil ivory (including walrus, mammoth and mastodon), archeological and paleontological materials are regulated by an array of Federal and State laws and these items may not be collected on any State or Federal public lands. Fossil ivory may be collected on private lands with permission of the landowner. Fossil ivory collected on private lands is not regulated under the Marine Mammal Protection Act and does not have to be registered. (Source: Department of the Interior (Alaska) Fish and Wildlife Service (http://alaska.fws.gov/law/pdf/beachfound.pdf)
Any violation of the MMPA or of any permit or regulation issued under it may result in a civil penalty of not more than $10,000 for each violation. Each unlawful taking or importation is a separate offense. There must be notice and opportunity for a hearing in a civil case. In any case involving an alleged unlawful importation of a marine mammal or marine mammal product, if the importation or taking is for personal or family use (which does not include importation for sale), the Secretary may allow the individual to abandon the mammal or product as an alternative to prosecution.
Anyone knowingly violating the MMPA or any permit or regulation issued under it may be fined not more than $20,000 for each violation, or imprisoned for not more than one year, or both.
This act and amendments are summarized at http://www.nmfs.noaa.gov/pr/laws/mmpa.htm
The amendments to this act in 1994 are summarized at http://www.netpets.org/fish/legislation/marinemam.html
The Endangered Species Act is the enabling legislation for the Convention on International Trade in Endangered Species of Wild Fauna and Flora, commonly known as CITES. Under the Endangered Species Act, it is illegal to possess, sell, transport, import, export or offer for sale in interstate commerce any species (or part of that species) that is on the Endangered Species list. The prohibitions regarding commerce do not apply to an article which is at least 100 years old, is composed in whole or in part of a listed threatened or endangered species, has not been repaired or modified with any part of such species; and if imported, is entered in a designated port. The ESA also prohibits the taking of an endangered species within the United States, its territorial sea, or on the high seas.
U.S. courts have consistently held that only a general intent to do the act in question, such as to "take" or possess an animal, plant, or animal or plant part is required. It is not necessary for the government to prove that a defendant had knowledge of illegality or even knew that the species in question was protected under the ESA.
The provisions of the ESA supersede treaty rights granted to Native American tribes for exclusive hunting or other privileges with regard to wildlife in their tribal areas, so having such treaty rights is not a defense in a prosecution under the Act.
Section 1539(e) of the Endangered Species Act provides that any Indian, Alute, or Eskimo who is an Alaskan native who resides in Alaska may hunt and take threatened or endangered species for subsistence purposes only.
The Endangered Species Act's provisions are not applicable to transportation or gifting of prohibited products or species where these were lawfully possessed at the time the statute became effective in 1973. (See 16 U.S.C. 1538(b)(1).) However, this "grandfather" clause cannot be used by to avoid criminal liability where possession is in connection with a commercial activity; commercial activity is specifically excluded from the "grandfather" clause.
The Endangered Species Act makes it unlawful for any person subject to U.S. jurisdiction to engage in any trade in any species contrary to the provisions of the CITES Convention or to possess any specimen contrary to the provisions of the Convention. (See 16 U.S.C. § 1538(c)(1).)
Regardless of whether the source country of the endangered species material that was the subject of a charge under the ESA has signed CITES, CITES applies to trade within a signatory's jurisdiction. United States law requires importers to obtain proper export permits from the country of origin establishing that the species was lawfully taken in that country. U.S. case law has held that countries that are parties to the Convention may adopt domestic laws stricter than the measures required by the Convention itself.
Violations of the ESA are punishable by civil as well as criminal penalties. The ESA imposes substantial fines for knowing violations of regulations pertaining to threatened or endangered species and lesser, but still considerable, fines for other violations. The ESA penalty schedule is available at www.gc.noaa.gov/schedules/6-ESA/EnadangeredSpeciesAct.pdf.
The United States Sentencing Guidelines provide for an increase in a convicted defendant's "offense severity rating" depending on the value of property involved in a particular crime against endangered species, and whether the criminal conduct was for commercial purposes.
Materials from endangered species were – and occasionally still are - used to decorate American Indian and other forms of tribal art. Thus it is necessary for collectors and dealers to understand the material used in their art and, where materials utilize endangered species, to be prepared to prove that the artifacts are more than 100 years old.
For example, "tortoiseshell" is sometimes a pseudonym for the shell of the Howell's Turtle, an endangered species. In 2003, it was possible to find many examples of artifacts made from "tortoiseshell" offered for sale on e-Bay. The U.S. Fish and Wildlife Service urged e-Bay management to stop this practice. In recent searches of eBay, ATADA found no prohibited items, although some items were listed as "tortoiseshell" that appeared to be made from artificial material.
For current information on the Endangered Species Act, we recommend that you visit a US Fish and Wildlife Service site, http://www.fws.gov/endangered/species/. Another FWS link is http://www.fws.gov/endangered/laws-policies/. Additional information is at http://www.natureserve.org/explorer/statusus.htm
There is a great variety in the scope of the laws protecting endangered species in different states. Some states’ laws protect only threatened animals and plants that are native to that state. Other state statutes cover both state-generated and federal species listings.
The acts that trigger criminal liability also vary. Some states make it illegal to take, possess, transport, sell, barter, trade, exchange, export, or to offer for sale, barter, trade, exchange or export, or give away endangered species for any purpose. Other state laws prohibit a much more limited range of acts. The number of species varies greatly: California lists 130 animal species, North Dakota lists eight.
Dealers and collectors should be aware that even possession of an object that includes part of a federal endangered species may be illegal under some state laws, even though the protected species is not on the state’s endangered list.
A webpage with a state-by-state chart of endangered species with the name of the state agency responsible for regulation and enforcement, links to the text of the state statute, endangered species list criteria and penalties for violations may be found at http://www.animallaw.info/articles/ddusstateesa.htm.
The 2002 CITES treaty controls the international movement of wild plants and animals, alive or dead, whole or parts, to ensure that the pressures of international trade do not contribute to the endangerment of listed species. The treaty imposes a ban on the commercial trade of species in danger of extinction, listed on Appendix I of the treaty. If a species is considered threatened, it is listed on Appendix II, where regulated commercial trade is allowed.
Nations signing the convention agree to prohibit the cross-border movement of the species unless the relevant country has issued a permit. Each signatory State agrees to create laws implementing the convention: in the U.S., that is section 8(a) of the Endangered Species Act. In the U.S., the Department of the Interior grants permits for export of listed species.
Prosecutions related to import violations of CITES permitting rules (or failure to obtain permits) are also often made under the Lacey Act.
The Lacey Act of 1900 was the forerunner of all animal protection acts. While many of the provisions of the original act have been superseded by modern-day amendments or by other laws, the Lacey Act remains focused on the restoration of game and other wild birds in parts of the U. S. where they have become scarce or extinct.
The duties and powers of the Department of the Interior include the preservation, distribution, introduction and restoration of game and other wild birds. The law also covers all fish and wildlife and their parts or products, and plants protected by the Convention on International Trade in Endangered Species and those protected by State law. Commercial guiding and outfitting are considered to be a sale under the provisions of the act.
Under the Lacey Act, it is a crime to import, export, transport, sell, receive, acquire, or purchase any fish or wildlife or plant taken, possessed, transported, or sold in violation of any law, treaty, or regulation of the United States or in violation of any Indian tribal law, and State law or any foreign law. The Lacey Act also applies to failure to correctly mark shipments and properly identify fish or wildlife in interstate or international commerce.
Anyone who knowingly imports or exports fish, wildlife or plants listed under the Endangered Species Act or engages in the sale or purchase of a listed species with a market value of more than $350 knowing that the item was unlawfully obtained under any law may be fined not more than $10,000, or imprisoned for not more than one year, or both. Each violation is a separate offense and the offense is deemed to have been committed not only in the district where the violation first occurred, but also in any district in which the defendant may have taken or been in possession of the fish or wildlife or plants.
Anyone who improperly marks a package of fish, wildlife or plants in interstate or foreign transportation is subject to a civil penalty of not more than $250. Anyone who falsely labels fish, wildlife or plants for import or export may be fined and imprisoned for not more than 5 years, or both, if the offense involves the importation or exportation of fish or wildlife or plants. The sale or purchase, offer of sale or purchase, or commission of an act with intent to sell or purchase fish or wildlife or plants with a market value greater than $350 may result in a fine under title 18 or imprisonment for not more than 1 year, or both.
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In 1970, UNESCO established the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, and in 1972, the Convention Concerning the Protection of the World Cultural and Natural Heritage. With one hundred eighteen signatory nations, the 1970 UNESCO Convention is still the most important international instrument dealing with cultural property.
While the 1970 UNESCO Convention encouraged the international movement of art, it was focused primarily on national property interests. Signatories to the Convention agreed to prohibit the import of property stolen from a museum or a religious or secular monument and take steps to recover the property if requested by another signing nation. Signing nations undertook to oppose unauthorized export of cultural property, but the Convention did not provide for the return of objects simply on the basis of national ownership claims. The Convention also required that the state requesting the object’s return pay just compensation to an innocent purchaser.
The United States signed the convention in 1972, with reservations that are reflected in the 1983 U.S. implementing legislation for Articles 7 and 9 of the UNESCO Convention, which call for concerted action among nations to prevent trade in specific items of cultural property in emergency situations. The Convention on Cultural Property Implementation Act (CPIA), which took eight years to reach final form in the U.S. Congress, gives the President authority to negotiate bilateral agreements for the restriction of trade in cultural property with source nations, and the power to impose unilateral import restrictions in emergency situations.
The 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects was drawn up by the International Institute for the Unification of Private Law (UNIDROIT) in response to dissatisfaction with the perceived failure of the 1970 UNESCO Convention to halt the trade in illicitly exported art. UNIDROIT called for the restitution of stolen or illegally exported objects, and allowed claims for their return to be brought before the courts of the signatory States. Cultural objects that have been unlawfully excavated or lawfully excavated but unlawfully retained are considered stolen from the source State. Time limits for claims to me made are limited to three years when the source State is aware of where the object is and who has it, but fifty years otherwise. The United States and most other major art-importing nations have not signed the Unidroit Convention.
Other treaties and international instruments can impact trade across borders. Simply being a signatory to UNESCO does not mean that a country has implemented its terms in the country’s own laws. However, some important art trading nations, among them the United States, Britain, Switzerland, Germany, and Italy, have passed laws restricting imports or trade in other nations’ cultural property or in freshly excavated archaeological materials. See http://www.cprinst.org/Home/cultural-property-laws and UNESCO Database of National Cultural Heritage Laws, http://www.unesco.org/culture/natlaws/index.php?&lng=en for foreign laws governing import and export of artworks.
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The U.S. has taken two very different legal approaches to international cultural property (which includes both antiquities and ethnographic art). One approach is through the Cultural Property Implementation Act of 1983 (CPIA), the implementing legislation for the 1970 UNESCO Convention, which Congress intended to serve as the primary expression of U.S. policy on international cultural property. The CPIA established a process whereby a foreign nation could request that the U.S. halt imports of its art or antiquities by showing that that particular material or site was at risk. The law granted “safe harbor” to artworks that had been in a U.S. museum, displayed or publicly known for certain numbers of years.
The second approach uses the National Stolen Property Act (NSPA), which was originally designed to prevent the transportation of stolen cars across state lines, and has no provisions for review or safe harbor. Even if a work of art is the private property of a foreign owner, and has been purchased and paid for, if a source country has made a clear declaration of national ownership of cultural property, the art may be considered “stolen” if it is brought into the U.S. Although prosecution under the NSPA have been very rare, a recent case confirmed the use of the NSPA in a situation where a source country had a law on the books that claimed state ownership of all cultural property.
As a result of having two conflicting approaches under U.S. law, a museum, collector or dealer can be in compliance with the CPIA, but under the NSPA they may not have legal title to their art, and could, potentially, be prosecuted for theft, transportation, or sale. Customs seizures of incoming goods could also be influenced by the current strong bias towards foreign government’s claims.
The requirement of showing “scienter,” knowing wrongdoing, on the part of a defendant and the $5000 threshold for a violation can make the National Stolen Property Act an unwieldy tool for prosecuting international cultural property cases. Other legal arguments have been raised in recent years to bring importation of artworks from foreign nations within the scope of U.S. criminal law.
Five 2008 raids on California museums utilized a single, anomalous provision of the Archaeological Resources Protection Act in an unprecedented attempt to bring ARPA into the international arena. The application of these three laws respecting trade in international cultural property is described in greater detail below.
The 1983 Cultural Property Implementation Act is the U.S. implementing legislation for the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The CPIA is the only comprehensive U.S. legislation expressly designed to address problems created by the trade in antiquities and ethnological materials worldwide. The UNESCO Convention is not self-executing on signature but requires implementation through passage of domestic laws by each signing State Party.
The CPIA was intended to balance the competing interests of U.S. museums, the art market, the public, archaeologists, and source nations. Congress recognized that a diverse U.S. citizenry benefited by having access to the art of the entire world: the CPIA explicitly recognized a general interest of the international community in the interchange of cultural property among nations. At the same time, the CPIA was designed to ameliorate crisis situations of looting by creating import barriers that limit or halt importation of various forms of cultural property when archaeological sites are at risk.
The CPIA establishes the process for bilateral and multilateral agreements: the Cultural Property Advisory Committee (CPAC), a committee of eleven experts, makes recommendations to the President on the requests from source countries. The CPIA requires that the committee determine if there is a “situation of jeopardy” to a country’s cultural patrimony. Import restrictions by the U.S. must be made in concert with actions by other nations. The source country must also take steps to protect its heritage – it cannot rely entirely on the U.S. to police its borders. The CPIA further requires that import restrictions be consistent with the general interest of the international community in cultural exchange. The CPIA also defines emergency situations in which the President may impose limited, time-constrained import restrictions.
The Act creates safe harbor for objects held by a museum for three years or more, purchased in good faith, and published, exhibited or cataloged. If objects are not held by a museum or similar institution, the safe harbor provisions require that they have been in the U.S. for ten years and publicly exhibited or accessible in order to give notice to possible claimants or that they have been in the U.S. for twenty years and the owner can establish that the material was purchased without knowledge or reason to believe that it was “imported in violation of law.”
The U.S. currently has agreements with Bolivia, El Salvador, Colombia, Honduras, Nicaragua, Peru, Guatemala and Ecuador, essentially cutting off importation of pre-Columbian materials into the U.S. There are also agreements with China, Cambodia, Mali, Cyprus and Italy. Over the years, the list of prohibited objects in a typical agreement has become broader and broader and in some cases includes almost everything over 250 years old from a given country. For a chart showing current and expired restrictions under the CPIA, see http://culturalheritage.state.gov/chart.html.
In addition to the restrictions imposed under these agreements, a long-standing U.S. law, the 1972 Pre-Columbian Monumental and Architectural and Murals Statute, prohibits importation of these major works unless provided with a certificate of origin and evidence of legal export or satisfactory evidence of export prior to passage of the Statute. Another treaty, the 1970 Treaty of Cooperation between the United States of America and the United Mexican States Providing for the Recovery and Return of Stolen Archaeological, Historical and Cultural Properties, provides that both countries “employ the legal means at its disposal to recover and return from its territory stolen archaeological, historical and cultural properties that are removed after the date of entry into force of the Treaty.”
A Chart of Emergency Actions & Bilateral Agreements executed under the Cultural Property Implementation Act may be found at http://culturalheritage.state.gov/chart.html. The lists of prohibited items that may be seized by U.S. Customs are published in the Federal Register on the same date that the agreements under the CPIA are announced. Links to the individual agreements, emergency actions and Federal Register notices are at http://culturalheritage.state.gov/list.html.6.2: Unilateral Agreements
In early 2008, there were raids on five California museums conducted amid allegations that they had wrongfully accepted donations of ancient materials from Thailand. The statute employed was the Archaeological Resources Protection Act of 1979 (ARPA). This Act has generally held to apply only to materials on federal or Indian lands and its application in the California cases is doubtful.
Essentially, these potential prosecutions in California attempt to extend a law designed to protect archaeological resources on federal and Indian lands to cover archaeological sites throughout the world. ARPA section 470ee(c) prohibits the sale, purchase, exchange, transportation, or receipt in interstate or foreign commerce of archaeological resources excavated in violation of any provision in effect under state or local law. The reference to foreign commerce and the omission of the phrase from public or Indian lands in section 470ee(c) provides the support for the expansion of the reach of ARPA to cover trafficking in foreign artifacts.
There are potential constitutional barriers and federal preemption issues raised where a state law, operating through a federal statute, might conflict with another federal law or with federal or foreign policy. Behavior punishable under federal law in one state might not be punishable in another state.
The global application of ARPA may subject innocent art dealers and collectors to potential prosecution through circumvention of the NSPA’s requirement that an accused have acted knowingly and wrongfully. The virtually infinite expansion of ARPA to antiquities worldwide on the basis of the absence of a phrase in a single section of the law appears to be a deformation of the Act’s purpose to protect Native American and other U.S. archaeological materials. Application of ARPA to foreign contexts also raises questions about the jurisdictional reach of U.S. courts over activities in foreign countries.
There has been no public action on these California museum cases since the raids and seizure of museum computers and records by a task force of three federal agencies in January 2008.
The National Stolen Property Act (NSPA) states: " Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud ...Shall be fined under this title or imprisoned not more than ten years, or both..."
In the recent case of United States v. Schultz, 178 F. Supp. 2d 445 (S.D.N.Y. 2002), aff’d 333 F.2d 393 (2d Cir. 2003), a New York dealer was convicted of trafficking in Egyptian cultural property in violation of the National Stolen Property Act. In simplified terms, the Schultz case held that an object may be considered stolen under the NSPA if the country of origin has a clear law identifying cultural property as belonging to the state, if this law is being enforced in the country of origin, and if the object was exported without government permission after the date of enactment of the country of origin's national ownership law.
One result of the conviction in Schultz is to place all objects removed from source countries subsequent to the enactment of foreign ownership laws into a legal limbo. The NSPA approach would encompass a very broad range of materials, not just antiquities or ethnographic objects from Third World nations. Italy, for example, has prohibited export and restricted sale even within Italy of artworks since 1939: an Italian renaissance painting purchased from a private owner that subsequently left Italy without a permit could face legal claim under Schultz. Private owners and institutions that have owned, exhibited and published objects for decades could not know whether or not they would be considered “stolen” under the NSPA until a court case determined the applicability of the source nation ownership laws.
Current Customs policy similarly places a burden upon importers, who cannot predict whether importation of objects will be regarded as legal or not. These actions by Customs and the courts render the CPIA essentially moot and eliminate the “safe harbor” granted to institutions and private owners by the U.S. Congress.
A note on U.S. Customs: The right to import is a privilege that may be withdrawn. It is important to follow U.S. Customs regulations to the letter as even an innocent mistake or omission can render a shipment subject to seizure. When shipping through an agent, be sure to check documents to ensure that they reflect the correct country of origin, valuation, age, etc. U.S. Customs regulations and lists of restricted objects from countries with agreements under CPIA are published in the Federal Register and may be accessed at http://exchanges.state.gov.
Collectors and dealers alike should be careful to obtain as much information on provenance and documentation of export as possible, whether directly from the country of origin or through intermediate countries over time. When importing materials potentially subject to import restrictions, be prepared to show that the items left the country of origin more than ten years prior to import.
The full text of the National Stolen Property Act can be found at http://www.atada.org/stolen_property_act.html or http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/113/sections/section_2314.html
For the Schultz case, see the investigation of the Frederick Schultz case.
Final recommendation from ATADA: Learn the law and follow it, ask for and provide the best documentation you can to clients and others and adhere at all times to the highest standards of professional ethics. If in doubt, consult an attorney.
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We want to be in compliance with the law as it relates to the sale and collection of antique and tribal art objects. In order to be in compliance, it is necessary for us to understand the law. Thus we have created here above a summary of tribal art law.
This is a time of change. Nothing can be considered static - and numerous modifications to the laws or their application are being considered. We hope to provide here frequently updated information about proposed changes that may affect collectible art and art objects.
We hope to provide here frequently updated information about proposed changes that may affect collectible art and art objects. ATADA may soon take a more proactive role in promoting changes in the laws. There may be an action proposed that requires the immediate attention of the membership. This page also provides a place where we post alerts of pending activities and an archive of recent legislative alert e-mails on this subject.
We believe strongly that all citizens should participate in setting U.S. policies on cultural property and we urge you to make your voices heard.
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The Senate Committee on Indian Affairs has approved the Committee reporting S.536 (see p. 15) to the full Congress. Section 108 (on page 15), by inserting " or was" after " is," would undo the U.S. Court of Appeals decision in the Kennewick Man case that those human remains are not " Native American" as that term is defined in NAGPRA.
No hearings were held on S.536. With relatively minor changes this is the same bill introduced and reported by the Senate Committee on Indian Affairs last fall. The plan is to adopt it by voice vote without debate early in April (perhaps as early as the week of April 4-8, 2005).
We need to get senators to raise questions about the bill and to move to delete Sec. 108 or send the bill back to the committee for hearings. This is the time to bombard the Senate Committee on Indian Affairs and individual senators and Senator Frist with thoughtful letters sent by e-mail or fax. For email addresses, see US Senate Membership , or for FAX call (202) 224-3121, and ask to be connected to the particular senator's office, and then ask the senator's receptionist for the fax number. Do not mail letters as they will be delayed in security. Every communication counts.
An e-mail " ATADA Legislative Alert #2 " was sent to the ATADA membership on Monday, April 4, 2005.
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Dear (ATADA Member),
You are receiving this e-mail because of your membership in ATADA.
We understand that the Senate will vote by voice (no roll call, no accountability) on an amendment to NAGPRA after it reconvenes Nov. 16. Thus time is of the essence and we ask your prompt attention to the following matter:
(This is a quote from The Friends of America's Past web site http://www.friendsofpast.org/)
" Without mentioning NAGPRA by name, Colorado Senator Campbell introduced an amendment that significantly changes the intent and scope of NAGPRA. By referring to Public Law 101-601 rather than calling attention to the more familiar NAGPRA, the clear intent was to slip this amendment by unnoticed. No time was allowed for discussion of this amendment. Although the original framers of NAGPRA recognized that the scientific community and the general public have a significant interest in understanding our nation's factual prehistory, these interests have been quietly set aside with two words: 'or was'. A press report (www.Indianz.com 10/1/04) quoted a Senate staffer who said the amendment was " non-controversial" .
" The statute's definition of Native American was a central issue in the Kennewick Man case. In fact, the government argued before the Ninth Circuit Court of Appeals that if the bones of " Adam and Eve" were found within our borders, they would be considered Native American under NAGPRA. As a result they would have been given to claiming tribes, reburied, and the public would have no legal right to object. This new amendment effectively allows any federally recognized tribes to claim any and all ancient remains even though they can produce, as the Ninth Circuit Court stated, " no cognizable link" to the remains. This new definition puts all ancient remains such as Spirit Cave, Wizards Beach, Gordon Creek, Horn Shelter, and Arlington Springs under NAGPRA.
" If this new wording had been part of NAGPRA in 1996 when the Kennewick remains were discovered, the skeleton would have been deemed Native American, given to the claiming tribe (Umatilla), and reburied without study. Although NAGPRA requires that a tribe produce evidence of a relationship to an identifiable prior group, the Secretary of the Interior has the authority to set aside this requirement. Former Secretary Babbitt did so at least twenty times, allowing repatriation to claiming tribes without requiring any evidence beyond their beliefs. The government and tribes have argued that under NAGPRA, Native American remains cannot be studied for research purposes. NAGPRA does include such a statement.
" Expanding NAGPRA in this way imposes a simplistic view of the past: that the only inhabitants of the continent were the ancestors of modern American Indians. Time and time again, scientists have refuted this idea. Two words 'or was' denies factual understanding of the complexities that surely existed in the peopling of the Americas by giving American Indians exclusive control over our nation's prehistory. In the Kennewick Man case, the government and tribes argued unsuccessfully all the information obtained during government studies is proprietary to the tribes should not be accessible to the public. With NAGPRA's amended language, the public would be denied access to any information discovered about the earliest people to inhabit the continent. All information about our prehistory would belong exclusively to the tribes."
" Contact your Senators and Representatives in Washington DC and voice your concern that this reportedly 'non-consequential' amendment to S.2843 has passed committee review without the benefit of public review or any consideration of the far-reaching consequences."
The ATADA Board of Directors has asked me to create a "Legislative Alert" web page. More information on this alert will shortly be posted to the new web page.
There are numerous issues of importance to collectors and dealers alike. I am looking for help to collect information to be posted on our new web page. I am inviting all of you to send me subjects for posting and I am especially looking for help in keeping up to date on these rapidly developing topics.
Thank you for your prompt attention to this matter.
Arch Thiessen, ATADA Webmaster
reply to: Webmaster@ATADA.org, email@example.com, or firstname.lastname@example.org or FAX (415) 927-3717
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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:
Voice your concerns - NOW
Suggested language: (Personalize your own message but use this subject alert)
Subject: S.536 - DELETE Section 108
Suggestedletter - provided by W. Roger Fry (WRF@rendigs.com)
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 " 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.
Please pass this e-mail along to any friends and/or customers that you think may be interested.
Thank you for your prompt attention to this matter.
Arch Thiessen, ATADA Webmaster
reply to: email@example.com or firstname.lastname@example.org or
Webmaster@ATADA.org or FAX (415)927-3717
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Initial Collaborators with active input to this page
Kate Fitz Gibbon