August, 2010 Meeting Minutes

• Board of Directors Meeting, August 10, 2010
• The Federal Raids: Myth and Fact, August 16, 2010
• Annual Meeting, August 17, 2010

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Minutes of the ATADA Board Meeting
Tuesday, August 10, 2010
Hotel Santa Fe
9 AM

Present:
Anna Bona and Ted Trotta
Kate Fitz Gibbon
Bob Gallegos
Alice Kaufman
Mike McKissick
John Molloy
Ramona and Doug Morris
Arch Thiessen

Edith and Roland Flak and Brant Mackley have resigned from the BOD. The attendance record that I am keeping is perfect. A quorum at every meeting!

Bob Gallegos gave his Treasurer’s report: ATADA has $32,000, including cash in the bank and $10,000-15,000 in CDs. After expenses are paid and uncollected dues are received, Bob estimates we will have about $12,000. Two-thirds -- $8000 -- of that will go to the ATADA Foundation. There is already $6000 in the Foundation, out of which the Guidebook will be paid leaving a balance slightly over $2000, so ATADA will have $10,000 to donate. In August, the Foundation published “Native American Art and the Law: A Collector’s Guide” by Kate Fitz Gibbon, using Foundation funds for education and promotion.

Kate then told the board about the Collector’s Guide. Her aim was to “make ATADA’s position available to all interested parties, including arrowhead people, archeologists, etc., not just our members. Ninety-five percent of the material available on the market today is legal to buy, sell and own,” she continued. “We want to encourage others to work with us in both legislative and social areas.” Kate will introduce the Guide to members and the media at the Monday Art and the Law discussion. ATADA members will receive copies in the mail, and additional copies will be available free to the public, with a $10 donation to the ATADA Foundation requested. Early copies would be available at the August Santa Fe shows.

Mike McKissick said that a dealer who is not an ATADA member was “busted” for tortoise shell decorations on a piece of 1930s Spratling jewelry at a show in Florida. Mike added that he saw “lots” of similar pieces at the 12th annual Great Southwestern Antiques Show in Albuquerque in August.

Kate replied that endangered species laws can be both state and federal, and it can be complicated to know about and obey both.” But, she warned, a seller must have any permits required by the source country for importation even if the species involved is not endangered. She added, “every Migratory Bird Act case is also a case-by-case situation.”


Bob Gallegos reported on the Legislative-Education Committee’s activities since the committee was created in Kansas City. Members are Bob, Steve Elmore, Wilbur Norman and former attorney/prehistoric ceramics collector Jim Owens. One goal: to enlist the media and Congress, beginning with Rep. Ben Lujan (D, NM), to join with ATADA to encourage the ARPA task force to sit down with all concerned parties and develop procedures that will help agents in protecting our cultural sites. It is ATADA's goal to be at the table when changes to existing archaeological laws are proposed, as well as to offer our assistance to agents such as Noel Wagner in seeking proper enforcement of the laws. The reason the agents are operating undercover stings, Gallegos said, is that they view these actions are their most effective means.

On Monday, the Leg-Ed panel discussion, The Federal raids: Myth and Fact, will show how the agents are misinterpreting or reinterpreting the laws to their advantage. The Panel will also illustrate how Ted Gardiner, the FBI's now infamous informant, was doing things that were inappropriate. However, it is important to understand what situations exist that cause the agents to "act like they do"! Gallegos stated [ed. that since ARPA allows for the legal removal of artifacts from non-grave sites located on private land, this feature of the law has allowed illegally removed artifacts to be washed through legal sites by unscrupulous sellers] while the government must prove that the artifacts in question came off illegal lands.

In the future, Gallegos concluded, we must be better in our "due diligence" in getting provenance on items we buy. We must start demanding that auction companies provide us with collection history. If we buy prehistoric items, we must get disclaimer statements signed by the selling party. At a minimum the wording should include, "Seller represents that he or she has legal title to the Property such that the legal title can pass to the Buyer free of the claims or interest of any other person. Seller further represents that the property has not been acquired illegally in violation of the Federal Archaeological Resources Act of 1979 or in violation of New Mexico [applicable state] Statutes Section 18-6-11.2 and any subsequent revisions to such Statute.” Having a signed document of this nature is a step toward due diligence and shows a buyer’s proper intent. It may not prevent the taking of the Property but it will protect one from criminal prosecution.
It was decided that a press release should be sent that day to local media. (Editor: After being informed, several newspaper reporters and KOAT-TV Albuquerque covered the Monday meeting.)

An agenda for the Tuesday general member’s meeting was discussed and created.

Mike McKissick asked when the next board meeting would take place. The meeting has been tentatively scheduled for Wednesday, February 23 at 4 PM at the Embassy Suites in San Rafael. New officers would be introduced at that time. Officers will be elected at this meeting.

The Foundation will have a separate meeting after the board meeting. If a board meeting becomes necessary before then, the board will meet in Phoenix.

A nominating committee will present a slate of possible new board members by December 15, and members may propose a slate by January 1. Each nomination must have two members to second the nomination.

The board then discussed how to generate positive news stories. John Molloy has begun with an article in Art & Antiques written by a former curator on Native American art as part of the American heritage, featuring collectors from Thomas Jefferson to John Warnock. John also wrote an article that appeared in the Whitehawk show publication in August. The Leg-Ed committee also made headway in attracting the press to the Monday morning Art and the Law event, The Federal Raids: Myth and Fact.

In addition, Kate Fitz Gibbon and Steve Elmore met with one of first-term Congressman Ben Lujan’s assistants, stressing the importance of the Indian art market to New Mexico’s economy, and the importance of the market to indigenous artists. There was a one-hour conversation with Lujan’s staff which generally followed the ATADA bullet points published in the Summer issue of The ATADA News. The 16 tribal groups in Congressman Lujan’s district are a priority for him, Kate told the board.

The board meeting was adjourned.

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Minutes of The Federal Raids: Myth and Fact
An ATADA Art and the Law Discussion
Monday, August 16, 2010
Santa Fe Community Convention Center
8:15 AM

ATADA Legal Committee Chair Kate Fitz Gibbon introduced the new ATADA Foundation publication “Native American Art and the Law: A Collector’s Guide,” which will be mailed to members and given to the public with a request for a $10 donation to the Foundation. ATADA, she reminded the assembled group is the Better Business Bureau of the tribal artifact trade, and our concerns go far beyond our membership.

Kate then introduced the panel: moderator Bob Gallegos, restorer Dace Hyatt, who described himself as FBI source “Ted Gardiner’s mentor,” and Associate member Jim Owens, a collector and retired lawyer.

Bob Gallegos led off the conversation by saying that according to ARPA, there are two kinds of artifact-source lands, legal and illegal. Enforcement is difficult. It is incumbent on the government to prove pieces come off illegal land. Their most effective tools are fear and intimidation. We as an organization are not adversaries – ATADA must be partners with the government to help them enforce laws, be part of the process. Documentation and due diligence are very important, and includes getting information from auction houses.

Jim Owens said that “we are all against illegal digging, that’s not what we are talking about. We want to explain how the law has been misapplied.” Ted Gardiner, Jim said, did “inappropriate things” while working undercover, which he did solely for money. After the Blanding raids, Owens said, Gardiner tried to entrap honest dealers and collectors. There is no organized large-scale, underground dealing in Indian art. This is a myth perpetuated by Federal agents, Ted Gardiner and anthropologists. The federal agents are acting contrary to the laws and the constitution. The Santa Fe raids trampled on the constitution and on private property rights. “Trying to repatriate material via raids is totally inappropriate,” he concluded, “and ought to be pursued via civil procedures just like any commercial transaction dispute. (For more on this line of reasoning see below.)

Dace Hyatt spoke next, saying he had known Ted Gardiner ten years ago, and described Gardiner before his suicide as “consumed with guilt for the lies he told. Ted was a visionary,” Dace continued, “and a good businessman. But he was a conflicted soul who aspired to be something better, but took a turn for the worse because of greed and money.” Dace added that he respected law enforcement “if they stay within moral and ethical bounds. The FBI and BLM chose the wrong man,” one who was driven by greed and money. Gardiner was “in financial distress: he owed his clients a lot of money, he was losing his house, his life was in disarray, emotionally and financially. He proposed his undercover idea to the FBI to get out of debt. He tried to paint us all as criminals. He made statements – lies – about high-profile dealers and collectors in order to get on the FBI payroll. The outcome of the raids was 26 indictments in two year period.

“Ted Gardiner was not the man for the job,” Dace explained. “He lacked integrity, was a con artist. The proposal he sold to the FBI was riddled with lies about people in this market. The FBI should have done research before raiding anyone. The raids were orchestrated based on Gardiner’s lies.” Dace Hyatt himself was one of the targets. “Why would your friend try to entrap you,” he asked himself. The answer: “For the money.”

Gardiner offered Dace some material “at a fair price, but when I asked for provenance, Gardiner told him the pieces had come from the “Arizona Strip” [the part of Arizona lying north of the Colorado River]. But Dace knew that was BLM land, and wouldn’t buy. He referred to the experience as “a vague entrapment, trickery to catch the good guys. We need to work with law enforcement. We are not the underworld and don’t deserve to be treated like that. There is a huge chasm between the opposing sides. It seems there are raids every ten years – the government needs to embrace the fact that it is okay to collect Indian art. But we definitely will not tolerate illegal activity in this market.”

Jim Owens then began to speak. He mentioned a case in Utah where permission was granted by the private owner of the land to explore and dig. He spoke of a dealer digging on a public Arizona site, and the receipt he has for the olla he found there. Then he gave an example of Ted Gardiner’s operation: Gardiner offered items to a specific collector, saying they were legally acquired, and actually signed a disclosure statement that the material was not in violation of ARPA, etc. The next day, Gardiner showed the collector “provenance” – a map showing the place where the pieces had been found, but didn’t say it was federal land (though it is.) But the collector wasn’t fooled and returned the items. “Gardiner had to resort to trickery and deceit to prove his worth to the FBI.”

Owens then pointed out that one-third of the cases stemming from the raids involved arrowheads, including “surface-found arrowheads. But when President Jimmy Carter signed ARPA in 1979, he demanded an exclusion for arrowheads, as he was a collector himself. Sherry Hutt, now head of NAGPRA, has written that arrowheads are “expressly excepted,” yet a count of theft from government property – referring to arrowheads – was part of the justification for the raids. “The law is clear,” Jim said. “A newer specific act [ARPA] supersedes the older general theft of government property act. I wish Sherry Hutt’s agents would read what she herself said. It is clear the FRI cannot use the theft act. There are a number of cases arising from the raids where counts should be dismissed. These accusations are being used as a club to get people to settle.”

In addition, Owens pointed out, the FBI never mentions the date when some of the material in question “came to market.” Anything on the market prior to October 31, 1979, is not covered by ARPA. The federal government is getting warrants and indictments wrong, and going against what their own people say. Also, when a collector buys an item, it becomes personal property. But the rights of dealers and collectors are being trampled on, personal property laws are being ignored. People have a right to possess personal property. The fifth amendment says that property cannot be confiscated without compensation. If the federal agents believe that private property doesn’t have good title, they have to go to court and follow rules of civil procedure. “Repatriation” of private property goes against the fourth and fifth amendments.

“But that is what happened in Santa Fe,” Owens said. “The agents were not following Hutt’s sworn testimony, ‘there is no provision in NAGPRA for repatriation… Sacred objects may be owned, are not subject to NAGPRA… This is consistent with American ideas of property rights… Cultural resources are still property.’ Collectors still have private property rights to their property,” Owens emphasized. “If the government wants it, they have to go to court to get it, not raid and confiscate. There is no question that Federal agents taking personal property is in violation of the Constitution. We need one of these ‘good’ cases to go before a Federal judge who will follow the law.”

Owens mentioned a somewhat similar case, Geronimo v. Yale/Skull and Bones, that was dismissed by a Federal judge when then plaintiffs cited the law that the item in question – the skull – was obtained prior to 1990. “We want to stabilize the market,” Owens said. “If we get a good case to a Federal judge, we will get a good ruling.”

We all need to protect and police the market, Owens added, and we must report bad material when it is offered. Demand written provenance and do due diligence. “If you get a signed statement of origin, you will not go to jail,” Owens said. “And dealers must do paperwork for buyers.”

Bob Gallegos said that auction houses should supply forms for buyers. “Disclosure will add to an item’s value,” he said.

Clinton Nagy spoke next, saying the meeting was “like watching a baseball game with only one team. Where are the Feds?” [Editor: If they were present, they did not make themselves known.]

“The press is here,” Bob Gallegos pointed out.

“We wanted a debate with the BLM and FBI, Jim Owens added. “That is our goal for our next meeting.”

Clinton asked what the Federal government’s goal is. “I want a broader look at what they are trying to accomplish.”

Bob Gallegos answered, “If they destroy the market, they will solve the looting problem. The pre-historic market has been chilled. One goal of ARPA was ‘to foster cooperation.’ This should be a friendly debate.”

A dealer who sells Japanese antiques who attended the meeting advised “Do not be a partner with the government. That is selling your soul to the devil. It is a no-win situation. They don’t want partners, they want victims.”

Someone at the meeting asked Dace Hyatt why Gardiner committed suicide. “In my opinion,” Hyatt replied, “he was consumed with guilt because he sold the FBI a false proposal. They were paying him $7500 per month. He was still on the payroll after the raids. He killed himself three weeks before the cases were to come to trial.”

Steve Elmore then said that this meeting had been the first presentation of the Legislative-Education Committee, and that there would be more information at the next meeting, the ATADA general membership meeting the next day. “ATADA has done a lot in a year,” he concluded. There were three reporters in attendance, he noted. We must speak up for our rights, he emphasized. “Now the agents just listen to the tribes and archeologists. There is good law, but the agents are overstepping their boundaries. We can turn the tide over time.”

A member asked if the documents Jim Owens cited will be available at atada.org? Jim said he will give Arch his documentation so it can be <http://www.atada.org/????>posted</a> on the ATADA web site. Another member asked what the government’s responsibility was for the pieces they take. Owens quoted from the recent Federal Inspector General’s report (excerpted in a recent ATADA News) that 1.9 million artifacts have been lost and 65 percent of what remains is un-cataloged. “Collectors who paid for their artifacts will take better care of them than the government.”

Another member offered to donate $5000 to help pay to let a case go to trial. He challenged other members to match his pledge and contribute, so ATADA could “pick cases and start having victories.” Bob Gallegos responded that we have had three different cases go to trial in the past, “and we could do so again in the future. It is a scary situation, and will take money.”

Legislative-Education Committee member Wilbur Norman ended the meeting saying that “if something happened to magically end the market for Native American artifacts it would not stop looting. There will always be people who go out and break the law for their own ends. The constituency that espouses ‘let’s end the market for Indian artifacts’ is positing a red herring that will not stop all looting.”

The meeting was adjourned.

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Minutes of the ATADA Annual Meeting
Tuesday, August 17, 2010
Santa Fe Community Convention Center
8:15 AM

Arch opened the meeting by saying that the public response to Federal Raids: Myth and Fact, the August 2010 edition of our Art and the Law series, was the “best ever.” KOAT-TV, Albuquerque’s ABC affiliate, devoted time on their 6 PM local news to the discussion, showing Jim Owens for about 15 seconds and then devoted an additional 15 seconds to a close-up (“in high def”) and conversation about Kate Fitz Gibbon's "Native American Art and The Law: A Collector's Guide," published by the ATADA Foundation.

Arch then asked the members to look back to one year ago – “how we got here,” as he said. Two weeks before Indian Market, Arch was interviewed by the Santa Fe Reporter for what turned out to be one in a series of “negative stories” about pot hunters and criminals who dealt in excavated and otherwise stolen and/or illegal artifacts. ATADA was put in a defensive position, left to reply to the newspapers that Indian art dealers were, in fact, “not dishonest as has been printed.”

Also, in response to the situation, ATADA’s Board of Directors met for a weekend-long retreat in Kansas City to discuss and formulate strategies and rewrite the bylaws. The board established the Legislative Education Committee. The Leg-Ed members – Bob Gallegos, Steve Elmore, Wilbur Norman, and Jim Owens – have met and made progress in ATADA’s attempt to “start to win the PR battle,” Arch said. “We need a single clear message, positive and sustainable.” To that end, the Leg-Ed committee have created “briefing points for a meeting with Congressman Lujan’s staff.” In addition, there is a new 2010-11 ATADA Directory, and Kate Fitz Gibbon wrote “Native American Art and the law: A Collector’s Guide,” a collector-friendly exploration of the current laws. Also, ATADA’s members-only insurance program has been updated, and offers “most generous limits for items without the requirement of a formal appraisal.”

Kate Fitz Gibbon thanked “everybody” for their help, and congratulated the Leg-Ed Committee for their Monday program, The Federal Raids: Myth and Fact.” “We must capitalize on that, and provide information.” Kate said she would write a press release about the Monday meeting, and would like to include Jim Owens’ research on atada.org. “We must self-police as we represent the highest standards in the trade,” she added.

Leg-Ed Committee member Steve Elmore spoke then. “After the June 2009 raids, the market was in disarray. The Leg-Ed Committee started to meet every month. Position papers resulted, and were published in the spring issue of ATADA News. The Committee met with the press about the negative stories that appeared in the Salt lake City Tribune, the Santa Fe New Mexican and the Albuquerque Journal. One result: press coverage of the Monday meeting. We also met with a member of Congressman Lujan’s staff, who was surprised to hear about the negative publicity. Other meetings are planned. Lujan’s staff said they would ‘look into legal discrepancies.’ We will give written questions to the feds, asking them to clarify the law. One-third of all cases are over arrowheads – which may be legally collected as surface finds. it is not legal to do that. We will try to bring pressure on the government which is not exercising appropriate due diligence. We are ‘the elders,’ who know the material and have proper standards. This Committee has a multi-pronged agenda: to talk to the media, write letters to the editor. As for the New Mexican – thanks, but what about Owens’ legal points? We most get our message out: we are legal and property rights still apply. We support ARPA, a good decent law. But, no one else is speaking up for the collectors’ point of view. ATADA must shift to an informative mission, and emphasize the joy and legality of collecting.” Elmore then talked about an undercover agent named Robert Whitman who worked with Josh Baer. “Befriend and betray,” Elmore said.

Elmore then discussed Geronimo’s headdress, which the government said must be saved for its heritage. “But we all know Geronimo had many headdresses, and sold them himself.” Elmore also recalled attorney Stephen Gruel, who spoke at the Art and the Law meeting in San Rafael in February, 2009. “He said the FBI will use ‘RICO’ tactics, as if we were part of an underworld/Mafia sting operation.” Their agenda, Elmore said, is “to take down this market, first with pre-historic material, then historic. They are listening to tribes and archeologists. No one is speaking for the individual collector. The government won’t care if we don’t care about preserving our market. We are losing the media war, and we need to counter. If you want our business to be healthy, we must organize in the 11 Western states first. We must reverse or at least stem the tide.”

Arch then said that we all need to look at the Committee’s briefing points and consider how to get our viewpoint to the press and government.

Natalie Linn said she was contributing to good press for the American Indian art business by appearing in the PBS series “History Detectives,” and that John Molloy’s story on collectors that appeared in the Whitehawk publication was another contribution. “We need more,” she concluded.

Arch then discussed the upcoming ATADA elections and a tryout of a new system. The board will appoint a nominating committee and will present a slate of candidates by December 15, 2010. Other slates are welcome from the membership. Members will vote by email/mail. The new board will choose ATADA’s officers. “We want fresh voices,” Arch said.

Treasurer Bob Gallegos said ATADA would show a $9000 surplus, from which he will transfer $6000-7000 into the Foundation. “These funds normally go to grants, but this year, the Foundation published Kate’s booklet, our own educational cause. We will have $7000-8000 in the Association’s account by the end of the year, and we have $12,500 in a CD we can access.”

Then Arch asked for comments/questions from the floor:

Wilbur Norman thanked Steve Elmore for persevering with the Leg-Ed Committee and keeping it going. Norman says the committee members will take their bullet points and have meetings with local newspapers. He described the press as “amenable but ignorant. If they reprint wire stories, they should talk to us too – it is easy to do and would help us fight against wholesale ignorance.”

Jack Curtright, who lives in Tacoma, WA, said that the further you get from “an art center” [read Santa Fe], the less we hear from the press on these topics. “There is no issue in Washington State.” He also suggested the Leg-Ed Committee have a dialogue with the National Archeological Association.”

Steve Elmore agreed. “ATADA wants a seat at the table with the archeologists, Feds and tribes who are all pushing their agendas. Discussion and cooperation is what ARPA says should happen,” Steve would like to remind them. “We live within it and so should you.”

Arch recommended we put together a panel to have a presentation at one of their annual meetings, “but it could be ugly.”

Elaine Tucker called the federal raids, etc., “a non-issue in St. Louis. If I even talk about this, collectors get scared. Do most collectors even know?”

Kate says we should stress what we have in common with museums and archeologists.

Jim Owens said we can’t put our heads in the sand, and said he would like the board to address how ATADA can respond quickly to negative press with the board’s approval. The board would have to respond within 12 hours, but must in the interim give a quick legal review before any response from us goes out to the press.

Basket specialist Terry DeWald said he is asked at every show about feathers, “which we know are legal – we know our parameters.”

“Basket dealers,” said Steve Elmore, “should meet with their congressman with a written request for clarification of the laws.”

Collector Pete Seigel, who runs a Washington PR agency, spoke next. “Every congressman is up for election this year. This is a unique window between now and November. We built a website for our clients where they enter their zip code to get information specifically for them. Yes, Steve is right – some collectors are aware and are deeply afraid. Steve is right that we must get clarification of laws, but go further and supply a draft of a letter on the web site that folks can send to their congressional rep. He then said he would volunteer to help ATADA. A round of applause followed his offer.

Steve Elmore added that “they are going after high-profile areas first. The government wants easy headlines that say they are ‘saving art.’ ”

Ted Trotta suggested that dealers tell their clients “how wonderful it is to live with Native American artifacts.” To which Steve replied that some of his clients were “nervous about their investment.” Ted then said that “the negative is all that is being discussed. Let’s say positive things too.”

Arch replied, “Museums have wonderful things, most of them donated by collectors.”

Cindy Hale, who is an appraiser in Tulsa and is on the Education/Museums Committee, reminded the group that “appraisers are also ATADA members. Museums have no funds now, and must accept donations. Some are de-accessioning material; let’s not alienate museums!”

“Our goal is a partnership with museums, who are our natural allies,” Kate said.

“Cindy and Wilbur volunteered to work with museums,” Arch said, “and nothing was done as an organization to back you. Now something will be done. We will support you and Wilbur.” On a different subject, Arch said that we have “ignored our collector side. Now we will have a Collector’s Corner in every issue of the ATADA News profiling individual collector members. How can we better serve collectors?”

Elaine Tucker saw two problems. “ATADA needs recognition to be able to fight and have a legal stand. But we can’t scare the customers or we will ruin the industry. We must fight without scaring collectors. ATADA must have political power to have clout. Dealers must have legal knowledge so they can answer collectors’ questions and allay their fears.”

“That’s why,” said Arch, the Board filters information for the press. “We must have one united voice.”

Alan Kessler said that disparate groups are involved: the government, the tribes, archeologists, collectors, and dealers. “We need a dialog among these groups. Some of them seem to be against us, trying to destroy the private collecting of artifacts.”

Arch: “Jonathan Batkin wrote that there were complaints about the federal government interfering with our trade as early as the 1880s.”

Scott Hale then said “Yea for Kate. And what happened to the idea of engaging a lobbyist,”

Steve Elmore answered: “ATADA has grass roots – we are our own lobbyists. And lobbyists cost $100,000 per year. Maybe in two years we’ll have to work with a lobbyist, but now we have to be involved ourselves.”

Ramona Morris spoke next. “A PR professional just offered us pro bono help.”

Ted Trotta: “ATADA should be a brand name. We are trying to get it right. Push the positive. Our next publication should be ‘The Joy of Collecting.’”

Steve reminded the group that Jim Owens’ research and information will be found at atada.org.

Jack Curtright noted that “beginning collectors are coming from eBay, where they were buying bad merchandise.

Arch: “Also some good merchandise.”

Steve: “The Indian Arts and Crafts Association forced eBay to change, offering only signed work This results in restricting the historic trade. eBay sellers should group together.”

Deborah Begner said she was feeling the loss of the Allard and Munn auctions, which were “a place to gather. Perhaps we could have an ATADA wholesale market just for members?”

Cindy Hale: “ATADA should have information in appropriate publications, the Indian Trader, etc.”

Steve Elmore: “We need to unify the membership, and encourage our members to support committees and work on them. The individual voice is not heard. ATADA must represent the group.”

Arch: “We all need to read Kate’s booklet.”

The meeting was adjourned.