Why is ATADA concerned with the recent federal raids?
The buying and selling of Native American art is a huge part of the national economy.
The publication Indian Trader recently quoted the director of the Department of the Interior Indian Arts and Crafts Board (IACB) as stating that the contemporary market in Native American art may approach a billion dollars annually. The director of the Albuquerque-based Indian Arts and Crafts Association stated that the market is at least 750 million dollars annually even after the recent decline. There are hundreds of art galleries and thousands of Native Americans, many still living a traditional life, who buy and sell Native American art for their livelihood. This business is important to the national economy and is unique to the western states. Many tourists come here to buy Indian art and the money spent turns over many times in the community.
The Indian art trade has suffered serious harm as a result of unfair and inaccurate publicity. Buying and selling Indian art is legal, yet fear and uncertainty have directly impacted the economy.
There has been a spill-over effect resulting from legitimate public concerns over looting and damage to archaeological sites. Due to uncertainty of the legal status of ancient, old, and even contemporary artworks, the market as a whole has constricted.
Not only art dealers, but also contemporary Indian artisans are now seeing their arts and crafts sales decline.
Casual collectors and tourists do not distinguish between old and new or sacred and profane, and indeed these lines are often unclear to the expert. Questioning the legality of any type of Native American artifact affects the market for it. If the press says that a kachina doll, a fetish, a dance rattle, a basket, or a pot may be subject to repatriation without pointing out that the repatriation provision affects only ceremonial items in federally funded museums, this will affect the entire market. By destabilizing the American Indian art market, the government is harming native arttraditions and culture as well as eliminating the livelihood of Native American artists.
The serious collecting community, which is the backbone of the American Indian museum scene is paralyzed by the legal uncertainty.
After last year’s raids, collectors are afraid to purchase new items or to show or share their collections. Misinformation in the press has created tremendous uncertainty in the public mind – many now believe they cannot own older pieces or anything once used in a ceremonial context.
Grave robbers and diggers who take artifacts from federal or Indian lands should be prosecuted to the fullest extent of the law. Stolen artifacts should be returned.
However, there should be repose for artifacts that have been traded since before ARPA and which have no history of unlawful trade, as envisioned in the statute. The laws state that artifacts that were illegally taken from federal or Indian lands are not legal to trade in. The laws state that objects from private lands and objects legally sold are legal to trade in, to pass to children, or to give to museums.
The problem is that the lawful or unlawful source of hundreds of thousands of items simply cannot now be known. If artifacts are held to be guilty until proven innocent, they will remain in legal limbo, without a future.
These objects should not be “orphans” but free for trade, inheritance and donation, as envisioned under ARPA. A federal judge in New Mexico has noted that making trade in these objects of unknown origin illegal would criminalize the innocent actions of thousands of Americans who purchased Indian items before passage of ARPA and now wish to pass them on to family or to donate them to museums.
There has been a very active trade in Native American art and artifacts involving hundreds of thousands of artifacts since the 1880s, long before any law regulating collection or trade was passed. For nearly seventy years after passage of the first law in 1906, Indian goods including antiquities continued to be regularly sold by Indians to tourists on reservations, traded through curio and pawnshops and sold at auction. Many of the goods that were circulating openly in the market prior to 1979, when Congress passed ARPA, have no history of their original find-spot.
U.S. museums have been encouraged to treat objects as “guilty until proven innocent.” This ill-considered policy will continue to harm the public interest into the far future.
Fearful of public criticism, U.S. museums have taken steps to self-police acquisitions that go far beyond the requirements of the law. But these self-policing activities are already backfiring on museums – many cannot accession long-promised collections simply because no records were kept back in the time when no record-keeping requirement existed. To impose a requirement now for documentation on materials purchased in good faith long ago is a task beyond the ability of collectors to accomplish. To move the burden of proof on these issues from government to the individual, while at the same time moving historical goal posts, is bad practice and bad law.
Dealers and collectors are under attack. It is ATADA’s duty to respond.
“It is potentially problematic to deal in this stuff. You don’t always know the provenance of an object. All the more reason for the public to avoid buying antiquities. I’d like the trade to dry up.” – anonymous Federal enforcement agent as quoted in August 20, 2010 issue of Pasatiempo. Similar statements have been made by professional archaeologists. Notice that such sentiments do not distinguish between the tiny fraction of illegally removed older or ceremonial items and the bulk of the market which is non-controversial and entirely legal.
If ATADA does not speak up, who will?
United we stand, divided we fall!
See excerpts of stories and ATADA’s responses in the Fall 2010 issue of The ATADA News.
The federal raids and ATADA’s responses
Raids and ATADA’s Responses In early 2009, the FBI took its long anticipated action to enforce the Archaeological Resources Protection Act of 1979 (ARPA)and the Native American Graves Protection Act of 1990 (NAGPRA) by staging multiple simultaneous armed raids in Blanding and elsewhere in Utah and the Four Corners region. Somewhat surprisingly, these were followed with a set of raids in Santa Fe in June, 2009.
In early August, 2009, a set of negative articles about collecting Native American Art appeared simultaneously in the all the Santa Fe and Albuquerque newspapers. ATADA was unprepared. We had never seen such an onslaught of negative publicity. This was coupled with misinformation and incomplete information in the media accounts. We had no good means to combat it.
One highlight of the week was the Art in the Law talk. Because of the publicity, the session was well attended. It was not surprising how eager the audience was to hear the discussion of the law. The questions showed a general need for education on the relevant laws which we continue to address in our Art and the Law sessions. In November, 2009, the Board of Directors took the first-ever step of holding a retreat at a time not associated with a show. This retreat was held in Kansas City shortly after the opening of the new American Indian Art wing at the Nelson Atkins Museum. We had quite thorough discussions of the current issues. One session was devoted to a thorough rewrite of the Bylaws. The ATADA bylaws have been rewritten to reflect the changes in direction that have occurred in recent years. One result of the retreat was the formation of a new Legislative Education Committee. This committee met many times during the winter and spring and has met with several newspaper editorial boards as well as with Congressman Ben Lujan’s (D-NM) staff. The committee hopes that other ATADA members will use this model to take on similar meetings in their own states.
Early in the summer of 2010, Kate Fitz Gibbon wrote a 32-page booklet entitled “Native American Art and the Law: A Collector’s Guide.” This user-friendly booklet is written in language that the average collector can readily understand. Copies were distributed to all members in August.
Also at the Santa Fe August 2010 shows, the Legislation Education committee conducted a seminar entitled “THE FEDERAL RAIDS: Myth & Fact.” This first-person account of the Four Corners raids played to a packed house and generated very good press for ATADA. Minutes of this discussion are available in the ATADA News Fall 2010 issue. The next day, there was a very lively discussion at the ATADA 2010 Annual Meeting.