Understanding Cultural Property: A Path to Healing Through Communcation

Save the Date!!  May 22, 2017 • Santa Fe, NM


When the 2016 STOP ACT was introduced, ATADA & SAR came together to create better communication and understanding of the controversial issues surrounding the proposed legislation. This May, ATADA & SAR will jointly present the symposium, Understanding Cultural Property: A Path to Healing Through Communication. 

This event is Monday, May 22, 2017, in the Eldorado Ballroom at the Eldorado Hotel in Santa Fe, New Mexico.

The event is open to the public; registration is just $35 for a full day (9-4:30).

This symposium is an important dialog for all people involved in the Native American art community, and beyond.  A full day of presentations and panel discussions will be given by tribal representatives, specialized legal counsel, art professionals, museum personnel, collectors, and various other interest groups.  Here are some topics slated for consideration throughout the day: national legal experts will cover the proposed legislative measures; tribal religious and government representatives will share their contemporary viewpoints; art market professionals and collectors will discuss collecting histories and the potential negative economic impact of unclearly written bills.

The goal is not only to inform the public about the importance, and primary consideration, of tribal rights to consultation and self-determination, but also to find positive and respectful, cooperative solutions with the national private art market that could actually enhance, rather than harm, southwest regional and tribal economic interests.  This momentous occasion will also afford ATADA the opportunity to introduce a developing Voluntary Returns initiative that seeks to assist in bringing privately owned, important tribal religious objects of cultural patrimony, directly back to the tribes. 

We should all be forward-thinking: this engagement hopes to produce more than political solutions—it aims to start a historical healing process, encourage tribal empowerment, and develop future understanding with a market that supports both antique and contemporary tribal artistic traditions. 


Background information on the law and the issues being grappled with: 

At SAR, Panelists Negotiate Repatriation and the Law

The School for Advanced Research (SAR), in Santa Fe, New Mexico, presented the final installment of a Speaker Series celebrating SAR’s 110th anniversary: an April 19th panel titled, At the Forefront of Repatriation: New Policy and Impact Beyond the United States. The program grappled with the specifics of proposed legislation drafted in response to the sales of Hopi, Zuni, Acoma, and Navajo artifacts. The Safeguard Tribal Objects of Patrimony (STOP) Act was introduced in Congress in 2016 expressly to halt export of Native American objects.

Panelists included Honor Keeler, Director of the International Repatriation Project for the Association on American Indian Affairs (AAIA); Gregory Smith, of Hobbs, Straus, Dean & Walker, a Washington DC Indian Law specialist firm, and Kate Fitz Gibbon, of Fitz Gibbon Law, a cultural property lawyer representing the Antique Tribal Arts Dealers Association (ATADA). Brian Vallo, Director of the Indian Arts Research Center at SAR, acted as moderator.  

Although the 2016 STOP Act failed to pass through House and Senate committees, an amended version is expected to be introduced in Congress later this year. The SAR panelists laid out their differences regarding this proposed legislation. Honor Keeler spoke movingly about the historic loss of artifacts through US government and private sector abuses, and questioned whether items collected over the last 520 years, even if collected legally, were collected with “informed indigenous consent.” She said that the existence of a market for Indian artifacts promotes looting. Making the right contacts with foreign governments was key to repatriation of ancestral remains, and she believed that the STOP Act would make a difference, since French courts did not recognize communally based claims by tribes or deal with them as sovereign entities. She felt that returning ceremonial items and ancestral remains was a human rights issue.

Gregory Smith noted the passage through Congress in 2016 of a non-binding joint resolution, which condemned illegal trafficking and stated that sacred items should be returned to the tribes. Passage of this resolution indicated clear bipartisan Congressional support for STOP, which was shared by the whole New Mexico delegation. Smith stated that tribes don’t like the emphasis on “ownership” and on current owner or collector’s rights of property. He asked, how do we define private property? Most of the time, the definitions of private property are hurtful to tribes and not in their best interest. He also noted that STOP has not yet been reintroduced, because it is being reworked…so the provisions aren’t set.  He described STOP as a blunt instrument meant to invoke conversation.

Fitz Gibbon agreed completely that ancestral remains and communally owned ceremonial objects should return to tribes, but said that STOP would not achieve that. She pointed out that despite the legislation’s intent to return artifacts to the tribes, it was not a clear declaration of ownership by the tribe but an export law. An export law would not actually strengthen the tribes’ legal position in the French courts, since France permits sale of objects from many nations with export laws. Furthermore, in the US, STOP could vastly expand the application of NAGPRA to private citizens, and deny American collectors the fair notice and due process required by the Constitution. She supported the tribes’ rights to keep secret information private, but since no list of sacred items was possible, according to the tribes, and there was no permitting system for the 568 US tribes, she questioned whether either exporters or US Customs officers could ever have the necessary knowledge to properly enforce the STOP Act, especially when a ten-year jail sentence could result.

Further, the law’s immunity provision implied that all collecting was illegal, when it was not, and telling collectors not to buy Indian art would not only negatively impact New Mexico’s economy and cultural tourism in general, but also frighten existing collectors into returning items that had nothing to do with religion. Native artisans dependent on sales were particularly vulnerable, as tribal leaders did not exclude new objects from the “ceremonial” category, and the STOP Act potentially covered all.

She pointed instead to the new Voluntary Returns Program initiated by ATADA, which, even after a short time, has been very successful in returning dozens of important ceremonial objects to the tribes. Combined with educating collectors and the public that certain items should not be sold, this Voluntary Returns program was a model for bringing items home in a respectful manner.

Regardless of disagreements regarding method, the discussions were historic first steps in bringing tribes and the art community together and in bringing key ceremonial objects back to the tribes.  As one audience member remarked, “It’s the best panel we’ve had in the whole series because people were willing to disagree with each other.” Another said that the difficult situation that national tribes are in is more than political, so there need to be more than just political solutions.


Presented by:

The School for Advanced Research (SAR) 
SAR is a research center located in Santa Fe, New Mexico, which supports advanced scholarship and creativity in the social sciences, the humanities, and Native American art.

The Antique Tribal Art Dealers Association (ATADA)
ATADA is an international organization whose art dealer, collector, and museum members are located primarily in the US. ATADA focuses on professional development and best practices for the trade in historic and contemporary tribal, ethnographic, and indigenous arts from around the world. 


This Symposium is made possible, in part, by the generous support of


Current information on confirmed speakers, panel titles and schedules will be updated on the Symposium Information page as it becomes available.  Or contact David Ezziddine at director@atada.org for more information. 

Downloads:

Update on the Safeguard Tribal Objects of Patrimony Act (STOP Act) and the Terrorism Art Antiquity Revenue Prevention Act

Update on the Safeguard Tribal Objects of Patrimony Act (STOP Act) and the Terrorism Art Antiquity Revenue Prevention Act

There are two bills currently before the Senate that are serous cause for concern for collectors, museums, and dealers in Native American and international ethnographic art. 

ATADA has already alerted its membership to the potential consequences of the STOP Act, S.3127/H.5854 which is currently before both House and Senate. 

The STOP Act amends NAGPRA to specifically prohibit the export of Native American and Hawaiian objects deemed tribal patrimony. The definition of tribal cultural patrimony under NAGPRA is an object has present religious and ceremonial significance to a tribe today.  

The STOP Act also makes it unlawful for any person to knowingly export from the United States any Native American “cultural items” obtained in violation of four existing U.S. statutes: NAGPRA, 18 USC § 1170, ARPA, and18 USC § 1866(b). A “cultural item” as defined in the ARPA is virtually any material remains of past human life or activities over 100 years old. To oversimplify a bit, the difference between an item that is lawful to collect and trade under ARPA and one that is illegal to trade is whether it was found or collected on private land, in which case it is generally deemed lawfully acquired, or found or collected on federal or Indian land in violation of law, including the 1906 Antiquities Act, when it not lawful to collect or trade.

The STOP Act also raises the penalty for a violation of any of the above existing laws from 5 years to 10 years. And finally, the bill adds a provision granting immunity from prosecution to anyone who “repatriates” an unlawfully obtained cultural object to the “appropriate” Indian tribe or Native Hawaiian organization within two years of the STOP Act’s implementation.

The STOP Act has no system for clearing artifacts that can be sold. The STOP Act does not identify the objects each tribe considers sacred or community owned. There are over 500 federally-recognized tribes. It is impossible for citizens to know what is deemed a cultural object by each tribe.

Proponents of the STOP Act have suggested that citizens can “ask the tribe” to determine if an item should be returned or can be sold. However, the law provides no permitting system, no staff or funding, no criteria, no standards of evidence, and no means of mediation or appeal.

The STOP Act’s 2-year “amnesty” window for the return of “unlawful” tribal cultural property by private collectors without prosecution implies that possession of all cultural objects is unlawful. The STOP Act is likely to cause unwarranted returns of thousands of lawfully owned and traded objects to tribes which do not want them. Collectors may be pressured to give up objects simply out of an abundance of caution. Alternatively, lack of clear criteria or means of compliance may result in virtually no returns at all.

ATADA has submitted testimony to both the House and Senate subcommittees on the STOP Act and is engaging directly with tribal governments to find better solutions to tribal concerns. Additional information on the STOP Act and contact information for legislators is linked below.


S. 3449, the Terrorism Art Antiquity Revenue Prevention Act of 2016

A second bill before the Senate, the Terrorism Art Antiquity Revenue Prevention Act of 2016, S.3449, poses a serious threat to US art collectors, museums and dealers in foreign ethnographic, antique, and ancient art. S. 3449 could overturn 40 years of US case law and make possession as well as trade in art from virtually any foreign country illegal under US law. 

Despite its name, the proposed law does nothing whatsoever to block terrorist funding. First, import of Syrian and Iraqi artifacts was already completely blocked by the Protect and Preserve International Cultural Property Act, signed into law by President Obama on May 9, 2016, as Public Law No:114-151. Second, there has been no evidence of any sales of Syrian or Iraqi art in the US that has supported ISIS or other terrorist activities.

The new proposed law, S. 3449, is a stealth attempt to end the international ethnographic and ancient art trade. It’s not the first and won’t be the last! The sponsor of the bill, Senator Kirk of Illinois, failed in his reelection bid, and no similar bill has been introduced in the House. It is therefore unlikely that there will be an attempt to pass the bill during the 2016 lame duck session. Nonetheless, ATADA is following the bill closely, and we anticipate that similar legislation will be introduced in the coming Congress in 2017.

What S. 3449 does:

  1. Section 2 amends the National Stolen Property Act (NSPA) to create special provisions for “cultural property.” “Cultural property” is broadly defined to include virtually all art and antiques, using the definition of cultural property in the 1970 UNESCO Convention. This includes antiquities more than one hundred years old. such as inscriptions, coins and engraved seals; objects of ethnological interest; pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand); original works of sculpture in any material; original engravings, prints and lithographs; original assemblages and montages; rare manuscripts, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.); postage, revenue and similar stamps, singly or in collections; articles of furniture more than one hundred years old and old musical instruments.
  2. The threshold value to trigger criminal liability NSPA is reduced from $5,000 to $50. 
  3. Cultural property that has been removed or excavated in violation of local law will be considered to be stolen. Stolen property would include any object removed or excavated from a foreign country in violation of a foreign local law.
  4. Section 3(a) requires any person who seeks to import, sell or gift any Syrian or Iraqi cultural property in the US to provide to the Secretary of Homeland Security
  5. information, with supporting documentation, on the provenance of the property that includes, at a minimum, when and where the property was obtained, and such other information as the Secretary of Commerce and the Secretary of Homeland Security consider appropriate.
  6. Section 3(b) sets up a working group to develop regulations to require dealers of cultural property to document and report information on transactions in cultural property of Iraq or Syria, and where objects were acquired; to work with participants in international art and cultural property markets to develop a Federal Government database with information on cultural property and warnings about buyers, sellers, appraisers and others with a history of conducting illegal trade in cultural property, and consider providing participants in international art and cultural property markets with access to the database.

ATADA President John Molloy, has written to the heads of the Senate Finance Committee, where the proposed bill is under consideration, urging the committee to take additional testimony before moving forward with this hastily introduced and extremely damaging bill. Other museum, collecting, and trade organizations have done likewise. ATADA and other organizations must work together to be sure this ill-considered bill and others like it do not continue to be introduced into the Senate and House.

Testimony regarding STOP Act S.3147

On October 24, ATADA submitted written testimony on the Safeguard Tribal Objects of Patrimony Act of 2016 (STOP Act), S.3127/H. 5854. 

The full text of the testimony is available in .pdf form to download at the following link: 

On October 18, 2016, the U.S. Senate Committee on Indian Affairs held an Oversight Field Hearing on "The Theft, Illegal Possession, Sale, Transfer and Export of Tribal Cultural Items"

The following testimonies from that hearing are also available for download: 


Honor Keeler
Director, International Repatriation Project Association on American Indian Affairs


Governor Kurt Riley
Pueblo of Acoma


Governor Myron Armijo
Pueblo of Santa Ana