ATADA Legislative Alert Page

A Primer on Tribal Art Law

Click Heading to See the Content of this Section

Legislative Alert Page Goals

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 a primer on tribal art law.

Numerous laws affect collectible objects. Some material may be defined as illegal to sell or purchase, either in total, or illegal to sell in interstate or international commerce. Furthermore, recent federal laws have required the application of the laws of other countries in determining which objects may be imported, sold, or even kept in a museum collection. Further complications arise from a patchwork of state laws on these subjects. At the present time there is a large, overlapping array of laws, in some cases, inconsistent with each other. All of this affects the value and salability of many forms of antique and tribal art. This page is intended to provide to ATADA members and the collecting public an introduction to the federal laws on this subject.

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.

From time to time, there may be an action proposed that requires the immediate attention of the membership. We handle these with an e-mail alert. This page provides an archive of recent legislative alert e-mails on this subject.

In summary, we have three specific goals for this page:

  1. to provide an introduction to the major federal laws in this area, to provide a simplified description of their consequences, and to provide links to web sites where further, more detailed discussions exist
  2. to provide a starting point for awareness of imminent changes. This section cannot be a complete warning system for changes. Rather, it will have some links to ongoing activities in the legal arena and legislative changes that are being considered
  3. to provide an archive of ATADA legislative alerts.

Click here to return to Legislative Alert Page Table of Contents

NAGPRA:

Native American Graves Protection and Repatriation Act of 1990

This act defines ownership, provides for inventory of, means of repatriation, and makes illegal trafficking in Native American Human Remains and funerary objects discovered on Federal and Tribal lands. At this time this act primarily affects museums and federal agencies that hold collections of such objects collected before the date of enactment. However, there are major consequences for collectors and traffic in objects defined in the act, as there are implied requirements for proof that objects were collected before the date of adoption of the act or proof of origin for objects that were collected after the law was enacted.

Recently, there has been a public controversy over some human remains (the " Kennewick Man" ) discovered in 1996 in the banks of the Columbia River in the State of Washington. This case has put scholars squarely at odds with Native American religious beliefs. Legislative actions have been started because of dissatisfaction with the Court's decision on the ownership of these remains. Certain proposed legislative actions led to sending out the first ATADA Legislative Alert (see below) and indirectly to the establishment of this web page.

The same legislative actions have been brought up again and are part of S.536 being discussed in April, 2005 - see pending legislative activities below

Common sense advice: collectors should pay attention to this act (and any future extensions) as it may affect the value and utility of donations of objects to museums, while collectors and dealers alike should maintain good documentation of date of discovery and origin of objects that may be funerary associated.

Links for further information on NAGPRA:

The NAGPRA Act:: A copy of the NAGPRA Act from the National Park Service Web Site

National Park Service NAGPRA Website: http://www.cr.nps.gov/nagpra/INDEX.HTM

News on the Kennewick Man Controversy: http://www.kennewick-man.com/

A non-Indian advocacy site: http://www.friendsofpast.org/

The Native American position on the Kennewick Man decision is given in the Sept 6, 2002 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

ATADA Member Ron McCoy's view of a controversial and troublesome topic: Some Reflections on NAGPRA

A letter to the editor of Tribal Art magazine entitled 'NAGPRA: The Real Problem '

Click here to return to Legislative Alert Page Table of Contents

The Eagle Feather Act (as Amended)

The eagle feather act originally grew out of a desire to protect our national emblem, the bald eagle. The act of 1940 provided that " Whoever, within the United States or any place subject to the jurisdiction thereof, without being permitted to do so as provided in this subchapter, shall knowingly, or with wanton disregard for the consequences of his act take, possess, sell, purchase, barter, offer to sell, purchase or barter, transport, export or import, at any time or in any manner any bald eagle commonly known as the American eagle (or any golden eagle), alive or dead, or any part, nest, or egg thereof of the foregoing eagles, " ...shall be subject to penalties. A further clause " Provided further, That nothing herein shall be construed to prohibit possession or transportation of any bald eagle, alive or dead, or any part, nest, or egg thereof, lawfully taken prior to June 8, 1940, and that nothing herein shall be construed to prohibit possession or transportation of any golden eagle, alive or dead, or any part, nest, or egg thereof, lawfully taken prior to the addition to this subchapter of the provisions relating to preservation of the golden eagle."

50 CFR 22.2 (a) (1978): " Bald eagles, alive or dead, or their parts, nests, or eggs lawfully acquired prior to June 8, 1940, and golden eagles, alive or dead, or their parts, nests, or eggs lawfully acquired prior to October 24, 1962, may be possessed, or transported without a Federal permit, but may not be imported, exported, purchased, sold, traded, bartered, or offered for purchase, sale, trade or barter. . . ."

It is clear that The Eagle Protection Act makes it unlawful to sell parts of a bald or golden eagle without a permit and establishes criminal penalties for violations of that ban. 16 U. S.C. 668(a). Likewise, the Migratory Bird Treaty Act prohibits the sale of migratory birds or bird parts without a permit. 16 U. S.C. 703. Both statutes prohibit sales of protected birds or bird parts without regard to when those parts were acquired. Those statutes and implementing regulations do, however, allow the possession and transportation of birds or bird parts that were lawfully obtained before the effective date of federal protection.

Various antique and tribal art dealers have been involved in court decisions relating to the eagle feather act for many years. In Andrus v. Allard, 444 U. S. 51 (1979), a federal ban on the sale of artifacts made from eagle feathers was sustained as applied to the existing inventory of a commercial dealer in such artifacts, the Court not directly addressing the ban's obvious interference with investment-backed expectations. The Court merely noted that the ban served a substantial public purpose in protecting the eagle from extinction, that the owner still had viable economic uses for his holdings, such as displaying them in a museum and charging admission, and that he still had the value of possession.

In a more recent case, " The Kornwolf Case" , some ATADA members supported the legal expenses of the plaintiff. " Based upon his sale of Indian artifacts containing golden eagle feathers, petitioner was charged with violations of the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act. Petitioner contends that the statutory prohibition against the sale of golden eagle parts, as applied to golden eagle feathers that were lawfully acquired before the effective date of federal protection, effects a taking of property in violation of the Fifth Amendment..." The Supreme Court refused to hear this case , thus supporting the government's prosecution of the case.

The advice from the ATADA Law Committee is : Under no circumstances should eagle or migratory bird feathers be offered for purchase or sale, or for barter, or be imported or exported. Of course, this includes bird parts, such as talons and even nests and eggs. There is no exception for antique Indian objects containing these parts, even ones which were acquired years ago.

Click here to return to Legislative Alert Page Table of Contents

Endangered Species Act

The Endangered Species Act of 1973 makes it illegal to sell or offer for sale in interstate commerce any species (or parts) which is on the Endangered Species list. A specific exemption is granted for objects that are more than 100 years old. Various related acts have been adopted by individual states.

There are many Endangered Species that were formerly used as decorative material in American Indian and Tribal Art. Thus it is necessary for collectors and dealers to understand the material used in their art and, where necessary, be prepared to prove that their artifacts are more than 100 years old.

We consider here one example, " tortoise shell" which 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 " tortoise shell" offered for sale on e-Bay. The US Fish and Wildlife Service has pressured the e-Bay management to stop this practice. In a brief search in 2004, this author found no prohibited items on e-Bay, although some items are listed as " tortoise" that appear to be made from artificial material. Let the buyer beware.

For information on the Endangered Species Act, we recommend that you visit the US Fish and Wildlife Service site, http://endangered.fws.gov/wildlife.html#Species . You will need a fast Internet connection to be able to download specific species information.

For a recent story on the tortoise situation on e-Bay, look at http://www.cccturtle.org/news/n_ebay.htm

Click here to return to Legislative Alert Page Table of Contents

Migratory Bird Treaty Act

The Act makes it unlawful to ship, transport or carry from one state, territory or district to another, or through a foreign country, any migratory bird, part, nest or egg that was captured, killed, taken, shipped, transported or carried contrary to the laws from where it was obtained or import from Canada any bird, part, nest or egg obtained contrary to the laws of the province from which it was obtained. This prohibition applies to birds included in the respective international conventions between the U. S. and Great Britain, the U. S. and Mexico, the U. S. and Japan, and the U. S. and the Russia.

Among the 1043 bird species naturally occurring in the U. S. and its possessions, 868 species (83 percent) are protected by the Act, 75 species or subspecies (9 percent) are protected in all or a portion of their range by the Endangered Species Act (16 U. S.C.1531) (hereafter " ESA" ), and 43 species (5 percent) are protected by both laws. All of the 175 species not protected by either the Act 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 Act).

Given the information above, it is no wonder that the US Fish and Wildlife Service Pacific Region Web Site says: " 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." There have been reports of Fish and Wildlife Service agents confiscating artifacts with apparent disregard for the type of feathers contained - it is possible that their management has instructed them to act exactly this way.

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 http://migratorybirds.fws.gov/intrnltr/mbta/mbtandx.html

The advice from the ATADA Law Committee is : Under no circumstances should eagle or migratory bird feathers be offered for purchase or sale, or for barter, or be imported or exported. Of course, this includes bird parts, such as talons and even nests and eggs. There is no exception for antique Indian objects containing these parts, even ones which were acquired years ago.

Click here to return to Legislative Alert Page Table of Contents

Archaeological Resources Protection Act of 1979

This is an act to enacted to protect archaeological resources on public lands and Indian lands. In particular, the law states that:

" No person may excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under section 4, ...No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange any archaeological resource if such resource was excavated or removed from public lands ...No item shall betreated as an archaeological resource under regulations under thisparagraph unless such item is at least 100 years of age...(where) The term " public lands" means- lands which are owned and administered by the United States as part of the national park system, the national wildlife refuge system, or the national forest system and or all other lands the fee title to which is held by the United States, other than lands on the Outer Continental Shelf and lands which are under the jurisdiction of the Smithsonian Institution the term " Indian lands" means lands of Indian tribes, or Indian individuals, which are either held in trust by the United States or subject to a restriction against alienation imposed by the United States, except for any subsurface interest in lands not owned or controlled by an Indian tribe or an Indian individual...No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported, or received in violation of any provision, rule, regulation, ordinance, or permit in effect under State or local law...Nothing in subsection (b)(1) of this section shall be deemed applicableto any person with respect to an archaeological resource which was in the lawfulpossession of such person prior to the date of the enactment of this Act."

The complete text of this law, as amended, can be found at http://www.atada.org/archeores.html or http://archnet.asu.edu/Topical/CRM/usdocs/arpa79.html or http://exchanges.state.gov/culprop/96-95.html

Common sense advice: Collectors and dealers of historic or archeological objects should maintain records of the location of discovery of these objects. The records should be accurate enough to demonstrate that the land on which these objects was discovered was indeed private, or that legal removal predated the enactment of this law.

Click here to return to Legislative Alert Page Table of Contents

Wild Bird Conservation Act

Wild Bird Conservation Act - Title I of P.L. 102-440, signed October 23, 1992 (106 Stat. 2224) establishes a new Federal system to limit or prohibit U. S. imports of exotic bird species, as follows:

The advice from the ATADA Law Committee is - do not purchase or sell Amazonian feathered objects unless you can be assured that they were imported legally.

Many discussions of CITES exist on the Internet - one good one is available at http://www.wingscc.com/aps/CITES.htm .

Click here to return to Legislative Alert Page Table of Contents

Marine Mammal Protection Act

The 1972 Marine Mammal Protection Act established a Federal responsibility to conserve marine mammals with management vested in 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...

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 issue of ivory is important to collectors and dealers. Sale or exchange of elephant ivory and walrus ivory are forbidden. Beach-found ivory may be registered and is legal to own, but may not be bartered or sold. However fossil ivory, including mastadon and mammoth ivory and walrus ivory that is legally found on private land, is not protected or permitted. The following is a quote from the state of epartment of the Interior (Alaska) Fish and Wildlife Service (http://alaska.fws.gov/law/pdf/beachfound.pdf ) or http://www.atada.org/beachfound.html.

" 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."

An exception has also been made for ivory carvings by Alaskan Natives. Details can be found at http://www.atada.org/alaska_native.html .

Click here to return to Legislative Alert Page Table of Contents

The Lacey Act

Lacey Act Amendments of 1981 (P.L. 97-79, 95 Stat. 1073, 16 U.S.C. 3371-3378, approved November 16, 1981, and as amended by P.L. 100-653, 102 Stat. 3825, approved November 14, 1988, and P.L. 98-327, 98 Stat. 271, approved June 25, 1984) These amendments repealed the Black Bass Act and sections 43 and 44 of the Lacey Act of 1900 (18 U.S.C. 43- 44), replacing them with a single comprehensive statute.

Under this law, it is unlawful to import, export, sell, acquire, or purchase fish, wildlife or plants taken, possessed, transported, or sold: 1) in violation of U.S. or Indian law, or 2) in interstate or foreign commerce involving any fish, wildlife, or plants taken possessed or sold in violation of State or foreign law.

The law 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.The purposes of the Act are to aid in the restoration of game and other wild birds in parts of the U. S. where they have become scarce or extinct and to regulate the introduction of American or foreign birds or animals in localities where they have not previously existed. The duties and powers of the Department of the Interior include the preservation, distribution, introduction and restoration of game and other wild birds.

The Lacey Act of 1900 stopped the illegal movement of game across state lines made market hunting inefficient - the forerunner of all animal protection acts. Most of the provisions original act have been superseded by modern-day amendments or by other laws.

A reference to the act with amendments of 1981 and 1988 is found at http://www.atada.org/lacey.html , http://www.csc.noaa.gov/opis/html/summary/lacey.htm .

Click here to return to Legislative Alert Page Table of Contents

 

The National Stolen Property Act

This act 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..."

There is no statute of limitations on stolen property. This act was the basis of the recent Schultz conviction . Collectors and dealers alike should take note of this act and be extremely careful about provenance and documentation - take note of the investigation of the Frederick Schultz case.

The text of this act can be found at http://www.atada.org/stolen_property_act.html , http://exchanges.state.gov/culprop/18-2314.html, or http://caselaw.lp.findlaw.com/casecode/uscodes/18/parts/i/chapters/113/sections/section_2314.html

The Schultz conviction rests on the basis of the McClain Doctrine, not previously tested in a criminal law case. As a result of the appeal of this case it is now applied in a large region of the United States including New York. In simplified terms, an object is considered stolen under the National Stolen Property Act if the US has an agreement with the country of origin, if the country of origin has a clear law defining the objects as stolen, if this law is being enforced in the country of origin, and if the object was stolen (exported) after the date of enactment of the foreign country's law on the subject.

This is common sense advice. If you need legal assistance, consult an attorney.

Click here to return to Legislative Alert Page Table of Contents

Cultural Patrimony

"U.S. law and policy has historically favored the free trade of cultural property. This policy began to be modified in the 1970s, when widespread looting of archeological sites prompted the US to enter in treaties with a number of South and Central American countries and to pass the first of several US laws that prohibited the importation of pre-Columbian antiquities.

"In 1983, after a decade of debate, Congress passed the Convention on Cultural Property Implementation Act (CPIA) in order to implement the 1970 UNESCO Convention. The CPIA became the cornerstone of a US policy designed to ameliorate crisis situations in which the cultural patrimony of a nation signatory to the UNESCO Convention was "in jeopardy." The law created a mechanism for foreign nations to request US import restrictions on cultural objects while preserving the United States' ability to limit the categories of restricted objects through expert review. The law covered archaeological objects of "cultural significance" that were at least two hundred and fifty years old, and objects of ethnological interest that were "important to the cultural heritage of a people because of their distinctive characteristics, comparative rarity, or contribution to the knowledge of the origins, development, or history of that people."

"US restrictions were to be undertaken in concert with other importing nations and were conditional upon the adoption of self-help policies by the source nation. These were generally understood as regulation of internal trade in antiquities, conservation of sites and artifacts, and the policing of their own citizenry.

"Restraint was built into the law. Actions taken under the CPIA were to be "consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes." Import restrictions would be enacted only if "remedies less drastic" were not available. In addition, the CPIA created a safe harbor for cultural property that had been imported into the United States if the object had been in the United States and had been published, catalogued or exhibited for specified periods ranging, depending upon the circumstances, from three to twenty years. (It should be noted that items actually stolen from the inventory of a church, museum, archaeological site, or private collection were and will continue to be liable to seizure and restitution to the victim of the theft. In the US, stolen is stolen, and no later good faith exchange of a stolen item can legitimize a theft.)

"A Cultural Property Advisory Committee was established under the CPIA to make recommendations to the President on whether or not requests from source countries met the criteria established under the law. The committee was composed of archeologists, experts in international sales, members of the museum community, and representatives of the public interest.

The text of the Convention on Cultural Property Implementation Act can be found at: http://exchanges.state.gov/culprop/97-446.html http://exchanges.state.gov/culprop/97-446.html . If link becomes dead, try http://www.atada.org/ConventiononCulturalPropertyImplementationAct.html - this was copied from the original on 2/18/07.

A link list guide to applicable laws and treaties is available at the Georgetown University Law Library site: http://www.llrx.com/features/culturalproperty.htm . If link becomes dead, try http://www.atada.org/protectculture.html copied from the original on 2/19/07.

The above simplified discussion of the Convention on Cultural Property Implementation act was taken from ATADA member Kate Fitz Gibbon's letter The Evolution of US Policy on Cultural Property Issues

Click here to return to Legislative Alert Page Table of Contents

Pending Legislative Activities

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.

...................................................................................................................................................

Click here to return to Legislative Alert Page Table of Contents

ATADA Legislative Alert No. 1, 9 November, 2004

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."

A further link on the proposed NAGPRA amendment is found on:

http://www.kennewick-man.com

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, rmfineart@earthlink.net, or Alice@ATADA.org or FAX (415) 431-1939

Click here to return to Legislative Alert Page Table of Contents

ATADA Legislative Alert #2, 4 April, 2005

Dear _____,

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

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 noncontroversial. 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.

Sincerely yours,

______________________

------------

Please pass this e-mail along to any friends and/or customers that youthink may be interested.

Thank you for your prompt attention to this matter.

Arch Thiessen, ATADA Webmaster

reply to: rmfineart@earthlink.net or Alice@ATADA.org or

Webmaster@ATADA.org or FAX (415)431-1939

Click here to return to Legislative Alert Page Table of Contents

Links to Congressional Delegations

US Senate Membership

US House of Representatives Membership

Click here to return to Legislative Alert Page Table of Contents

Initial Collaborators with active input to this page

Arch Thiessen
Kate Fitz Gibbon
Roger Fry
Leonard Weakley

Gallery and Directory
Geographical Directory
Welcome
Contacts
Calendar
Associates
Publications
Group Insurance
Join ATADA Now
Bylaws and Policies
Achievement Awards
ATADA Foundation
ATADA Presidents
Resource Archive
Legislative Alert
Caveat Emptor
Theft Alert
Links
ATADA Meetings
e-mail to ATADA
Search ATADA WebSite