Winter/Spring 2018 Edition

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President's Letter

Dear Fellow ATADA Members:

ATADA members, U.S. private collectors, and U.S. museums continue to face the threat of ill-considered, unconstitutional, and damaging legislation. The Safeguard Tribal Objects of Patrimony Act, known as the STOP Act, remains before the Senate Indian Affairs Committee and the House Subcommittee on Indian Affairs. Passage of either bill could take place during the 2018 Congressional session.  

ATADA has fought hard to show the truth about the harmful effects of the STOP Act and the damage it would do to tribal artisans as well as to collectors, art dealers, and museums. 

The Association of Art Museum Directors (AAMD) has also reached out to Congressional members and staff to oppose the STOP Act. The museums’ arguments against the bill are very similar to our own. The AAMD found so many flaws in the STOP Act that it rejected trying to “fix” it at this time. An additional, major concern of the museums was that the STOP Act would overturn well-established, working mechanisms for return under NAGPRA. 

ATADA’s voice has been heard. Our extensive testimony to Congress, along with testimony by other art and culture-related organizations, has raised real doubts among the members of Congress about the viability of the STOP Act legislation, its constitutionality and its ability to be fairly enforced.

Equally important, ATADA has shown that alternative, community-based approaches that include a truly voluntary system for return of key ceremonial objects will achieve the most important goals of STOP without harming the fundamental rights of U.S. citizens. Our completely voluntary returns program has brought over 100 ceremonial objects back to Southwestern tribes in just over a year. We want to ensure that future donors can receive tax deductions for gifting important ceremonial materials in current use to the tribes, and are working with tribal representatives on this. We believe that enabling a tax deduction for donors will significantly increase the number of items donated, and ease the financial burden of making such gifts.

ATADA members should be aware of the multiple forces at work in the STOP legislation, which has the wholehearted support of only a limited number of tribes. Other tribal organizations can see the perils of enacting such vague and untried legislation, and placing its direction in the hands of the Justice Department rather than the tribes. We believe that as the tribes learn more about the economic consequences of STOP, it will be possible to work together toward legislation that does good for tribes and the art world alike, rather than harming both.

This is an election year, and Senator Heinrich (D - N.M.), a primary sponsor of the bill, is one of many senators up for re-election this November. We will continue our efforts to reach out to Senator Heinrich, Senator Udall, Congressman Ben Ray Lujan and other legislators on the congressional committees considering the STOP Act – asking them to take a good hard look at it, and to set it aside as deeply flawed and as harmful to the very interests they wish to protect.

ATADA needs your help to get our message to Congress.
The way to help is to donate to the ATADA Legal Fund in Memory of Roger Fry.

Contribute to the ATADA Legal Fund Today!

ATADA must maintain its vigilance and make our position known in the outside world as well as to members of Congress.  We want to inform and educate the public about the importance of private collections in maintaining the cultural history of indigenous peoples, not only in this country but throughout the world.  

Take a look at Ron McCoy’s thoughtful article in this Newsletter on the current application of NAGPRA, including a discussion of President Macron of France’s call to return African art to its origin nations. Consider how the echoes of that call for return in the blockbuster film Black Panther are also circulating in the media. It’s clear that demands for fairness and restitution of stolen objects can quickly escalate into movements to repatriate all artifacts. What dangers for public access and scholarship can result? How can the needs of tribes and all other parties to this debate best be balanced?

We have all witnessed the demise of department stores and other traditional venues for goods of all kinds with the rise of Amazon and others in the electronic marketplace. There is a need for the market in indigenous and tribal art to adapt as well.  

ATADA is currently organizing its first online show.  In many ways, it will be like the brick-and-mortar shows that we have all participated in over the years.  Each dealer will have an exhibition of ten, twenty (or more) objects with set prices. The marketplace will be open for a limited amount of time and it will be well advertised in appropriate venues.  All objects for sale will carry the ATADA guarantee.  This is a call for vendors!  Please contact Executive Director, David Ezziddine (director@ATADA.org), if you are interested. We want to hear any suggestions you may have to make this online show as effective as possible.

In a final note, I’d like to express my personal sorrow and distress at the passing of our beloved colleague, friend and ATADA member, Lew Bobrick, who died suddenly at his home on Christmas Eve 2017.  If anyone ever said an unkind word about Lew, I never heard it.  Lew was universally admired for his good will, fine sense of humor and knowledge. He is much missed and will not be replaced.  Godspeed, Lew, and thanks for everything you gave to all who graced your path.

Sincerely,

John Molloy
ATADA President

Editor's Desk

In its role as a mouthpiece for our industry, over the last two years, ATADA News has tried to address the need for change in the way we consider the material culture of indigenous peoples. In addition to providing in depth coverage of market trends, our collective legislative battles, the loss of good friends and colleagues, the ins and outs of the appraisal profession, and academic insight into a variety of art forms, the News is concerned with exploring emerging developments in tribal art collecting. Looking long term to grow a devoted and robust collector base, we must engage in critical thought and embrace changes in our practices even before societal pressure compels us to. To work for our clients now means educating buyers to make informed purchases and consulting with collectors about pieces which might need to be returned to their point of origin. 

In this issue, “Legal Briefs” exposes the complexity of this idea in a discussion of the French President’s acknowledgement that items of Africa’s cultural heritage should be seen in Paris but also in Dakar, Lagos, and Cotonou. There is no clear path as to how these items, many of which are now housed in his country’s museums, should also be in their places of origin. Also in this issue, the Legal Committee recaps our influence in Congress and its effect. And, notably, there is a void where “No Free Appraisals” would usually be. Our column writer is absent, but she is not off the hook; she is diligently preparing a lecture for a national appraiser’s conference on the STOP Act. 

I sincerely hope that each of you find time to carefully consider the severity of the stakes that are at play by following our coverage and using what you find here as a jumping off point for further discussions. With the myriad of experiences we have among us, I know that there are constructive conversations to be had, so let’s have them, and let’s find a path forward.

Sincerely,
Paul Elmore

On Trend

On Trend

by Mark Blackburn
 

Well, it’s been another lackluster season for the tribal and Native American markets – except at the very top. The middle market continues to be nearly nonexistent as many dealers keep their old business models, which are genuinely outdated in most cases. On the other hand, the “trophy” market continues to climb with many sales reported above five million dollars, both privately and at auction. But with less than ten people acquiring objects at this level, it’s clear that this market is extremely thin. The question remains: What happens when these pieces appear again on the market by way of the three Ds (death, debt or divorce)? My opinion: If these objects are resold at public auction in a matter of years, it will be at quite a substantial loss. 

Having attended both the San Francisco Tribal Art Fair and the Marin Native American Indian shows, I can say that while some sales were made, it is not enough to deem the market level sustainable. Both shows are among the most important events of their kind in the US, under the watchful eyes of Kim Martindale and John Morris. Besides being the promoters, they exude passion for all things indigenous. While many notable dealers were missing, there were some impressive new international vendors, such as Didier Claes who provided a genuine touch of class and excitement at the San Francisco show. 

As an avid enthusiast and loyal supporter of both shows, it pains me to see so many exhibitors who just do not “get it” when it comes to presentation. Instead of complaining, dealers should focus on reinventing themselves with new young collectors or crossover markets in mind. That is the only certain way for these businesses and collecting world as a whole to survive. In Marin, I saw a superb collection of Native American baskets, but the primary collectors in this sector are in the 60+ demographic. Unless young collectors enter this area, the market will continue in its freefall like the “brown wood” sector of the antique furniture market. The “brown wood” market has declined to the point of near-nonexistence, yet “mid-century modern” continues to climb with increasing record-setting prices. 

Sotheby’s held the first of their sales, the Collection of Edwin and Cherie Silver, in November in New York and made $7,133,750 with many aggressive estimates and some notable “buy-ins.” As a longtime collector, I found it sad that some of the pieces didn’t end up in Los Angeles museums, particularly LACMA and the Fowler. The stars of the sale were indeed the Kotas, which made significant prices with many above the $200,000 level; as well as a nice, but average, Tlingit Chilkat blanket that made $62,500 on an estimate of $30,000-$40,000 (lot 25). One of the more prominent surprises at the sale was the number of Western Mexico ceramics, with a superb Colima figure with a bowl making $150,000 on an estimate of $70,000-$100,000 (lot 31). The appearance of so many Mexican objects was made all the more surprising, given that the Mexican government is applying tremendous pressure on auction houses and collectors everywhere.

Sotheby’s held their second sale in December in Paris, realizing $12,608,039 with some notable pieces making huge prices. An excellent early Benin classic head did quite well, making $2,197,047 on a conservative estimate of $705,312-$1,057,968 (lot 67); while a beautiful Fang head proceeded to bring in a remarkable $3,097,260 on an estimated $1,763,280-$2,938,800 (lot 24). The most significant surprise came with two Easter Island dance paddles [both discovered in a barn in the English countryside and deemed a pair, though I do not find this supportable] making $4,557,138 on an estimate of only $1,175,520-$1,763,280 (lot 7). 

In November, Christie’s held two sales in Paris. The first sale made over $20,000,000, setting a single-owner sale world record for a Hawaiian Ku figure that went for nearly $8,000,000. As many of you may know, I publicly stated my opinion that the piece is not genuine, but rather a revivalist piece. 

Other notable prices (all from the same Vérité collection) included a Maori Hei Tiki estimated at approximately $23,000-$35,000 that made over $300,000, despite it lacking any particularly significant features (lot 133); and a Marquesan stone double figure with an estimate of approximately $9,500-$14,000 that brought in an astonishing $140,000 (lot 154). With Kotas well represented and some very pedestrian African objects offered, the sale was hugely successful. 

Christie’s second Paris sale was a mixed-owner event held on November 22 that made over $5,000,000, with Oceanic objects continuing to escalate in price. Some notable examples include a New Ireland Mask that made nearly $200,000 (estimated approximately $70,000-$94,000, lot 10); a very rare, but crudely carved, Ti’i figure from Tahiti that sold for over $362,000 (estimated around $350,000-$585,000, lot 34); and a tremendously rare Fijian figure with lackluster esthetics made more than $460,000, nearly doubling its low estimate (lot 33). The sale even featured a Hawaiian poi pounder that would typically sell for $2,000 but made an astonishing $6,625 (lot 27).

Many of the items in the auctions were from the Ziff collection, which is in the process of being dispersed. Also worth noting from the sale was a beautiful New Caledonian bird-headed club that made nearly $14,000, seemingly underpriced for such a piece of sculptural quality and beauty (lot 18), and a rare Dan mask that made a remarkable $645,000 on an estimate of approximately $470,000-$705,000 (lot 39). 

Bonham’s held their sale of Native American art on December 4 in San Francisco and was mixed, at best, as this market continues to struggle – particularly with all the repatriation issues moving forward. Contemporary Native American art was well represented in paintings, jewelry, and sculpture. Some Northwest Coast masks sold for a mere fraction of a typical gallery price. One of the more fun things in the sale was a grouping of James Kivetoruk Moses paintings, which sold in the $1,625-$8,750 range and seemed to be a good value for the money. A superb Shalako Kachina (lot 17) made $20,000 on an estimate of $20,000-$30,000 with the majority of the more serious buyers residing in France and Germany. A magnificent Germantown masterpiece of weaving art, published extensively, was one of my favorites and made $50,000 on an estimate of $40,000-$60,000 (lot 163). 

An area that seems so underpriced is Mimbres pottery, especially with increasing and renewed interest in the art form due, at least in part, to the Tony Berlant show coming up at LACMA. A beautiful figural bowl with some restoration (lot 132) made just over $3,000 on an estimate of $3,000-$5,000 showing you that buying opportunities abound. 

The Bonham’s tribal sale was held the following day in Los Angeles and offered a wealth of buying opportunities. Some notable highlights include a rare Nukuoro figure that was formerly owned by myself, making $112,500 on an estimate of  $50,000-$70,000 (lot 34). A superb Austral paddle (lot 22) made $53,750 and set a world record, yet the price still struck me as unusually low, given that it was a masterpiece of the art form and consigned by the Ziff family. A superb Luba stool garnered much international interest and made $250,000 on an estimate of $200,000-$250,000 (lot 82). It seemed like an excellent buy, by comparison to what dealers are asking for in Paris and Brussels. An exceptionally large Maori Hei Tiki that had turned up in the UK (lot 41) seemed another excellent value, making a mere $68,750 compared to an inferior example that sold for over $300,000 at Christie’s in November. 

In closing, the market conditions are spotty. In my forty years of collecting, I have never witnessed a period such as our present. It is an opportune time to keep your eyes open, as buying opportunities abound and objects of note are most definitely in short supply!

***All prices in US Dollars with European figures converted based on the days exchange rate.

Mark Blackburn is a noted author, ATADA board member, appraiser, art consultant and former two-term President of the Society of Asian Art of Hawaii with over 35 years of experience in the field.

Art In Focus: Ancestral Figure "Patong"

Mark Johnson takes a closer look at a rare and highly refined Ngaju Dayak sculpture representing an important ancestor.

Ancestral Figure "Patong"
by Mark Johnson

Ancestral Figure “Patong”
Ngaju Dayak. Probably from Tumbang Malahoi village area, Rongan River, South Kalimantan, Borneo Island, Indonesia.
Hardwood. H: 68” (173 cm). 18th to 19th century.

A very rare, highly refined and realistically rendered sculpture representing an important ancestor, wearing traditional head gear and elaborate loincloth, with a tattoo motif on each thigh. 

This example is definitely one of my all-time favorite Borneo sculptures as the quality of the carving is as good as any I have come across.  The elongated torso and legs are reminiscent of Greek sculptures.  The face is extremely naturalistic.  The expression is stern, the face of a great village noble.  He is shown with his complete traditional loincloth, wrapped around his waist several times and hanging in front.  

There are dragon tattoos on the thighs, a symbol of noble birth and a specific identification of the clan or village.  By luck I found this tattoo in a recent publication with black and white photos from a Dutch expedition to this region in the 1950s, so I can identify the likely location of the village.  

The right arm was carved using an existing branch (a common sculptural technique in Borneo). The arm reaches skyward and from what can be seen in the remains of the hand, it likely gripped another object, perhaps a sword or spear.  The left arm was deliberately carved separately and attached in a slot carved out of the left shoulder.  Based on other sculptures from this region the left arm may have held a shield, which is why it needed to be carved out of a separate piece of wood.  It fell out long ago and likely rotted on the ground.  

Dayaks rarely replace or restore these posts and generally let them erode away to the point that they are discarded or they eventually abandon the site.  It is extremely rare to find examples this well carved with so many of the important details intact.  Typically, the nose or ears break off or the arms are broken or the bases rot away after a couple hundred years.  

In my opinion this example has the perfect amount of natural erosion.  Enough to show great age (it typically takes at least 100 to 200 years to erode ironwood to this point) with beautiful lichen patches, but yet all of the essential elements (other than the missing arm) are intact. 

Two images of this tattoo are found on pages 58/59 in “Along the Rivers of Central Kalimantan”, by Arnoud H. Klokke.  It is unusual to find old photographic evidence that provides likely location of an early wooden sculpture from Borneo Island.

U.S.’s UNESCO Withdrawal and the Art World; NAGPRA Repatriation Update

by Ron McCoy

In 1945, during the heady, uncertain days after World War II, the United States played a pivotal role in founding the United Nations.  That same year, it helped found an ancillary organization: the United Nations Educational, Scientific, and Cultural Organization (UNESCO).  From the start, UNESCO’s challenge lay in fulfilling its ambitiously multifaceted charge to build peace, eradicate poverty, and foster “sustainable development and intercultural dialogue through education, the sciences, culture, communication and information.”[1]    

UNESCO intersected with the indigenous art world through its 1970 “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property” (referred to here as the 1970 UNESCO Convention or the 1970 Convention), which is embraced by over a hundred nations, including the U.S. [2]

The 1970 UNESCO Convention arrived on the scene with ambitious intent: prohibit and prevent “the illicit import, export and transfer of ownership of cultural property.”[3]  According to the U.S. Department of State’s understanding,

States that are a party to the Convention undertake to prohibit the importation of documented cultural property stolen from museums or religious or secular public monuments in another State….[It also] allows any State Party whose cultural patrimony is in jeopardy from pillage to request assistance from other State Parties to carry out measures such as the control of exports, imports, and international commerce in the specific cultural materials concerned.[4]

Any meaningful attempt to realize the 1970 Convention’s lofty goals requires that the nations involved do more than play minimal lip service to its purpose and initiatives, which stem from the key assertion that “the illicit import, export and transfer of ownership of cultural property is one of the main causes of the impoverishment of the cultural heritage of the countries of origin.”[5]  At its core is a hopeful (some might say naïve) belief (or hope) that “international co-operation constitutes one of the most efficient means of protecting each country’s cultural property against all the dangers resulting there from [sic].”[6]

But what is “cultural property”?  As used in the 1970 Convention, the term mantles archaeological and ethnological material,[7] including “products of archaeological excavations (including regular and clandestine) or of archaeological discoveries…antiquities more than one hundred years old…[and] objects of ethnological interest”[8]  (emphasis added). 

The U.S. legislation implementing the 1970 Convention specifies that it covers “any object of archaeological interest” over 250 years of age (“normally discovered as a result of scientific excavation, clandestine or accidental digging, or exploration on land or under water”), as well as “any object of ethnological interest” (produced by “tribal or nonindustrial society” which is “important to the cultural heritage of a people because of its distinctive characteristics, comparative rarity, or its contribution to the knowledge of the origins, development, or history of that people”).[9]

Given that the pull of nationalism and powerful attraction to narrow concerns often trump more broadly-based internationalist sentiments, realization of the 1970 Convention’s goals has proven a frequently spotty, often controversial business.[10]  The trade in cultural property – both licit and otherwise – continues, of course, despite some well-publicized efforts to seize and repatriate cultural properties.  A small concession to the 1970 UNESCO Convention can be seen in what is now standard practice with many museums and curators, galleries and dealers, buyers and sellers (even eBay vendors): the issuance of statements attesting to an object’s collection prior to 1970, when the agreement took effect.

Which is not to say the 1970 Convention lacks either real influence or effect.  For example, in the spring of 1970, as the UNESCO document was being discussed in professional circles, the University of Pennsylvania Museum of Archaeology and Anthropology, seeing how the wind was blowing, issued the Pennsylvania Declaration.[11]This prohibits the university’s museum from purchasing “art objects or antiquities…unless the objects are accompanied by a pedigree [i.e., provenance] – that is information about the different owners of the objects, place or origin, legality of export, and other data useful in each individual case.”[12]

The drafters of the Pennsylvania Declaration clearly understood a glaring problem in the international antiquities and tribal arts world: Prohibiting the export of targeted classes of objects from originating countries (or their import into destination nations) does little good if market forces all but guarantee the continuation of such trafficking.  What we have seen of late are numerous attempts to raise public consciousness about the issue, evidently to bring about acts of policy compliance that can be cited as evidence of having taken the moral high ground.  (Whether this method of creating public policy involves politicians iterating perceived widespread public opinion or the views of an empowered minority with access to those wielding power is another question.)

For example, speaking to West African students in Ouagadougou, Burkina Faso’s capital, last December, French president Emmanuel Macron observed that objects welded to the continent’s cultural heritage “should be highlighted in Paris, but also in Dakar, Lagos, Cotonou.”[13]  It was an intriguing comment when one considers that Burkina Faso served as a kind of ground-zero during the 19th century’s race by European powers to seize, colonize, and exploit chunks of Africa for their own material and cultural advantage. 

Many of those in Macron’s audience were doubtless aware of the rich trove of African material in Paris’ Musée du Quai Branly, much of it transferred from the legendary Musée de l’Homme and the now-defunct Musée des Arts d’Afrique et d’Océanie.[14]  The 19th and early 20th centuries were something of a golden age for outsiders collecting African tribal art, sometimes as “reparations” exacted by military expeditions or, as was so often the case, through some rather sharp practices.  (“[M]ethods of collecting artefacts are, nine out of ten, methods of forced purchase, not to say requisition,” noted a member of France’s 1931-1934 Mission Dakar-Djibouti,[15] which spent twenty-two months in the field collecting 3,600 objects, including “Dogon masks and zoomorphic figures from Benin, sculpted heads from Mali, seats and musical instruments of native African peoples from the early 20th century.”)[16]

As with life in general, the devil with respect to Macron’s at least superficially visionary statement lies in the details, of which you may rest assured there will be more than a few to be brought up, discussed, haggled over, and – who knows? – possibly even worked out.  There is nothing in the way of a magic wand to latch onto here, but instead, a considerable amount of the usual positioning, posturing, and special pleading by culture bearers (self-appointed or otherwise), politicians, bureaucrats, lawyers, scholars, curators, dealers, and collectors.

“The real question though is, what right do successors to looters have to set conditions under which they will return looted artefacts to the owners?”[17] notes journalist and restitution activist Kwame Opoku, who asks an interesting question:

Can someone who has stolen my Mercedes Benz declare his willingness to return my vehicle on condition that I build a suitable garage of specific dimensions and hire a driver with a certain level of experience?  Where do Westerners derive such arrogance from that even when they are clearly wrong, they still want to dictate the rules of the game?[18]

Last October, a couple of months before President Macron spoke in Ouagadougou, the U.S. government announced its intention to withdraw from the Paris-based UNESCO.[19]

A consensus soon emerged among reliably informed, knowledgeable observers that the immediate practical effects with respect to antiquities and ethnographic art were nil.[20]  The long-term implications for the tribal art world of America’s withdrawal remain unclear, but there is nothing about that decision on its face that would in any way adversely affect the 1970 UNESCO Convention which, like the U.S.’s subsequent congressional enabling legislation, remains in effect.[21]

The picture is somewhat less murky with respect to obvious effect when it comes to the U.S.’s Native American Graves Protection and Repatriation Act of 1990 (NAGPRA). 

Widely perceived at the time of its passage in the run-up to the Columbian quincentenary of 1992 as a measure intended to make up for past injustices to American Indians and Native Hawaiians, NAGPRA provides for the repatriation of the physical remains and certain sacred, communally-owned objects which it identifies as “cultural patrimony.”  “It is difficult to identify precisely what types of cultural objects fall within this category of ‘cultural patrimony,’ but the legislative history defines them as objects of ‘great importance,’ such as Zuni War Gods [Ahayu:da] or the wampum belts of the Iroquois [Haudenosaunee].”[22] 

The ever-controversial NAGPRA set into motion a process that has proceeded apace over the years.  Between November 16, 1990 and September 30, 2016, the period covered by the most recent report of the National NAGPRA Program, 739 notices of intent to repatriate objects of cultural patrimony appeared in the Federal Register.[23]  

These repatriation announcements follow an established template: The notices identify the parties involved (typically a museum, as broadly defined under NAGPRA, and tribal representatives); specify the object(s) dealt with; make a determination as to each piece’s status (sacred object, object of cultural patrimony, and so forth); ending with a statement about the repatriation destination as agreed by those parties, absent the lodging of a competing claim by another party.  (A side note: It strikes me that over the years these notices’ descriptions of objects’ physical appearance, as well as their purpose and role in tribal society, have become, bit by bit, increasingly opaque.)

Do not look to a NAPGRA notice of intent to repatriate for any indication of a piece’s final disposition.  The parties involved are not required to provide that information.  As a result, there is no formal mechanism for tracking the treatment, movement, or whereabouts of pieces once they have been repatriated.  (While this may seem to some on its face almost preposterous, the counterpoint probably runs along what-business-is-it-of-yours-anyway lines.)

The 739 notices of intent to repatriate under NAGPRA published in the Federal Register between mid-November 1990 and the end of September 2016 covered 243,198 unassociated funerary objects; 5,136 sacred objects; 8,130 objects of cultural patrimony; and 237 “cultural items.”[24]  The twenty-eight notices published during fiscal year 2016 – that is, from October 1, 2015 to September 30, 2016 – dealt with 19,775 unassociated funerary objects, forty-seven sacred objects, eight objects of cultural patrimony, six pieces identified as both sacred objects and objects of cultural patrimony, and one “cultural item.”[25]

To say that NAGPRA has exerted significant impact on the indigenous art world would be an almost comical understatement.  The law’s effects run both deep and broad, although the full extent of its influence and effect are not yet fully understood.

The date on which the repatriation notice summarized here was published in the Federal Register is specified below.  All quotes, unless otherwise indicated, come from that notice.

Tohono O’Odham (Papago) Calendar Sticks:

Objects of Cultural Patrimony

Arizona State Museum, University of Arizona, Tucson, AZ (Jan. 12, 2017):  In the spring of 1939, Wetmore Hodges and his wife Dorothy Chapman Hodges, sponsors of the excavation of a major Hohokam site in the Tucson area,[26] bought a Tohono O’odham calendar stick from a member of the tribe named José Maria, who lived at Sil Nakya on his tribe’s reservation in southwestern Arizona.[27] Sometime during the 1960s, Arizona State University anthropologist Donald Bahr[28] received a calendar stick from an unidentified Tohono O’odham man near the deserted village of Santa Rosa, also on the reservation.  Both calendar sticks were donated to the museum.

As the notice points out, among the Tohono O’Odham

[c]alendar sticks carried a record of social and natural events, which were read only by the carver. These sticks were mnemonic devices with carved notches to represent a year, and dots and other symbols to represent events during the year, as reported by ethnographers. The distances between each notch represent a year, which is from summer to summer or saguaro harvest to saguaro harvest. The notches and cuts represent various happenings but only the keepers of the sticks can read the symbols. The stick is worthless unless the keeper can translate it or has given information to someone.

The parties involved agreed the calendar sticks ought to be transferred to the Tohono O’odham Nation of Arizona.

The notice’s passage about how the parties determined that a calendar stick is an object of cultural patrimony is worthy not only of presenting in detail but something to which readers might do well to ponder:

While some ethnographic accounts suggested that calendar sticks were considered to be private property, a newspaper account of the sale of the Sil Nakya stick [the one José Maria sold to the Hodges in 1939] reported that there was considerable community opposition to the sale. Based on interviews with a Tohono O'odham Elder from Sil Nakya who participated in calendar stick activities as a young boy in the late 1930s, it seems clear that Tohono O'odham in Sil Nakya regarded the calendar stick as an item that could not be alienated. While they were taken care of by an individual, the stick belonged to the community. The Elder described the time of year when people in the community would gather for a large social event, attended by members of surrounding villages. Men of the communities would gather to meet with the calendar stick keeper and discuss what entry would be carved onto the calendar stick for the year. This event was attended only by men; women were excluded. Some debate would take place before a consensus decision was made as to what event of the past year would be carved on the calendar stick for the year. From conversations with this Elder, it seems clear that the calendar stick belonged to the major village community where the keeper lived, but also retained importance for the surrounding villages. A preponderance of the evidence indicates that at the time of the purchase, this item was considered to be a community resource rather than an object owned by an individual. Because the calendar stick records significant events in the history of the Tohono O'odham Nation and the community determined by consensus what was to be recorded, the item has historical and traditional cultural importance central to the tribe.

What I glean from this excerpt is that there is some disagreement as to whether the piece in question is an inalienable piece of cultural patrimony, although the act of an anonymous “Tohono O’odham Elder” coming down in favor of the cultural patrimony argument seemed to settle the matter. 

A particularly interesting aspect of the rationale involved here is gleaned from this passage: “Because the calendar stick records significant events in the history of the Tohono O'odham Nation and the community determined by consensus what was to be recorded, the item has historical and traditional cultural importance central to the tribe.”  That is, upon examination, a bold statement with potentially profound implications for the world of tribal art.

Please note: This column does not offer legal or financial advice. Anyone who needs such advice should consult a professional. The author welcomes readers’ comments and suggestions, which may be sent to him at legalbriefs@atada.org

 

Endnotes:

[1]“Introducing UNESCO: What We Are,” (UNESCO, n.d.), http://www.unesco.org/new/en/unesco/about-us/who-we-are/introducing-unesco/. For most of us the best-known UNESCO activity may be the World Heritage Covenant, unveiled in 1972, with its famous World Heritage list, which, at the time this column was written, contained 1073 sites in 167 countries. “Convention Concerning the Protection of the World Cultural and Natural Heritage,” (UNESCO, n.d.), http://whc.unesco.org/en/conventiontext/. Since 2008 UNESCO has also maintained lists via its 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, recognizing, at this writing, some 470 elements distributed across 117 countries. “Browse the Lists of Intangible Cultural Heritage and the Register of Good Safeguarding Practices, Intangible Cultural Heritage (UNESCO: 2017), https://ich.unesco.org/en/lists.

[2] “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Paris, 14 November 1970,” (UNESCO, n.d.), http://www.unesco.org/eri/la/convention.asp?KO=13039&language=E, hereafter referred to as 1970 UNESCO Convention. The U.S. agreed to the 1970 UNESCO Convention in 1972; a decade later, Congress provided implementing legislation. “Cultural Property Protection/Progress and Purpose/Background,” U.S. State Department Bureau of Educational and Cultural Affairs, Cultural Heritage Center, n.d., https://eca.state.gov/cultural-heritage-center/cultural-property-protection/process-and-purpose/background. Congressional implementation of the 1970 UNESCO Convention takes the form of the 1982 “Convention on Cultural Property Implementation Act” (Public Law 97-446 or 19 U.S.C. 2601 et seq.), in ibid. at https://eca.state.gov/files/bureau/97-446.pdf.

[3] 1970 UNESCO Convention.

[4] “Cultural Property Protection/Progress and Purpose/Background,” U.S. State Department Bureau of Educational and Cultural Affairs, Cultural Heritage Center, n.d., https://eca.state.gov/cultural-heritage-center/cultural-property-protection/process-and-purpose/background.

[5] 1970 UNESCO Convention.

[6] Ibid.

[7] “Cultural Property Protection/Progress and Purpose/Background,” U.S. State Department Bureau of Educational and Cultural Affairs, Cultural Heritage Center, n.d., https://eca.state.gov/cultural-heritage-center/cultural-property-protection/process-and-purpose/background.

[8] “Illicit Trafficking of Cultural Property: Text of the Convention,” (UNESCO, n.d.), http://www.unesco.org/new/en/culture/themes/illicit-trafficking-of-cultural-property/1970-convention/text-of-the-convention/.

[9] “Convention on Cultural Property Implementation Act.”

[10] Lyndel V. Prott, “Strengths and Weaknesses of the 1970s Convention: An Evaluation 40 Years After Its Adoption,” http://www.unesco.org/fileadmin/MULTIMEDIA/HQ/CLT/pdf/Prott_2_en.pdf, prepared for representatives of the 1970 Convention’s state parties at UNESCO’s Paris headquarters June 20-21, 2012, offers some clues. Zsuzsanna Veres, “The Fight Against Illicit Trafficking in Cultural Property: The 1970 UNESCO Convention and the 1995 UNIDROIT Convention,” Santa Clara Journal of International Law, Vol. 12, Issue 2 (May 27, 2014), http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1175&context=scujil, offers a careful examination of the effectiveness of the 1970 UNESCO Convention and the 1995 UNIDROIT [United Nations International Institute for the Unification of Private Law] Convention on Stolen or Illegally Exported Cultural Objects, for which see “UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, (UNESCO, n.d.), https://www.unidroit.org/instruments/cultural-property/1995-convention. The 1970 Convention and the bill the U.S. Congress considered for implementing it nearly a decade after its formulation, explained Martin Biddle, then director of the Penn Museum, both drew bitter opposition from “many prominent art dealers and some museum professionals, who argue that unilateral action by the United States will do nothing to control a situation which it is the responsibility of the countries of origin to police.” That said, “The Convention and the Bill are supported equally strongly by every national organization representing American archaeologists, every national American museum organization, and many of the nation’s largest and most important museums,”[10] including Biddle’s own institution. Martin Biddle, “New Directions – Spring 1980,” Expedition Magazine, Vol. 22, No. 3 (1980), 2, https://www.penn.museum/sites/expedition/the-director-writes/.

[11] “The Pennsylvania Declaration: Decision of Curators of the University Museum, University of Pennsylvania, April 1, 1970,” Expedition Magazine, Vol. 22, No. 3 (1980), 3. See, also, the subsequent “The University Museum Acquisitions Policy May 2, 1978,” Expedition Magazine, Vol. 22, No. 3 (1980), 3.

[12] Ibid.

[13] “Benin Buoyed by Macron Pledge on African Heritage,” France 24 (Dec. 24, 2017), http://www.france24.com/en/20171204-benin-france-buoyed-macron-pledge-africa-heritage-cultural-treasures.

[14] Kwame Opoku, “More Dogon in Musée Du Quai Branly, Paris Than in National Museum, Bamako?” Modern Ghana (June 22, 2011), https://www.modernghana.com/news/336085/1/more-dogon-in-muse-du-quai-branly-paris-than-in-na.html.

[15] Michel Leiris, Phantom Africa (Calcutta, India: Seagull Books, 2017), 163.

[16] Christina Fiordimela, “Mission Dakar-Djibouti,” Domus 1019 (Dec. 8, 2017), https://www.domusweb.it/en/art/2012/09/06/mission-dakar-djibouti.html.

[17] Kwame Opoku, “Macron Promises to Return African Artefacts in French Museums: A New Era in African-European Relationships Or a Mirage?” Modern Ghana (Dec. 10, 2017), https://www.modernghana.com/news/821779/macron-promises-to-return-african-artefacts-in-french-museum.html.

[18] Ibid.

[19] The U.S. quit the organization once before, in 1984 during the Cold War, only to rejoin eighteen years later. In 2013, the U.S. lost its vote in the organization, having unilaterally suspended its dues payments two years earlier. Gardiner Harris and Steven Erlanger, “U.S. Will Withdrawn From Unesco [sic], Citing Its ‘Anti-Israel’ Bias,” The New York Times (Oct. 12, 2017), https://www.nytimes.com/2017/10/12/us/politics/trump-unesco-withdrawal.html?_r=0.

[20] Julia Halperin and Eileen Kinsella, “Museums Are Angry About Trump’s Withdrawal From UNESCO – But What Does It Really Mean?” Artnet News (Oct. 13, 2017), https://news.artnet.com/art-world/us-unesco-cultural-institutions-1116371.

[21] Ibid.

[22] Sarah Harding, “Justifying Repatriation of Native American Cultural Property,” Indiana Law Journal, Vol. 72, No. 3 (1997), 729-730, also available at https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1860&context=ilj. For purposes of NAGPRA, “[o]bjects of cultural patrimony include items such as Zuni War Gods, the Confederacy Wampum Belts of the Iroquois, and other objects of similar character and significance to the Indian tribe or Native Hawaiian organization as a whole.” “Title 43, Subtitle A, Part 10: Native American Graves Protection and Repatriation Regulations,” Electronic Code of Federal Regulations (Dec. 31, 2017),https://www.ecfr.gov/cgi-bin/text-idx?SID=7fa6c61b2baf8a1f9ec90479d47758a1&mc=true&node=pt43.1.10&rgn=div5

“Fiscal Year 2016 Report: National NAGPRA Program,” National Native American Graves Protection and Repatriation Act (NAGPRA) Program, National Park Service, U.S. Department of the Interior (2016),https://www.nps.gov/nagpra/DOCUMENTS/Reports/FY2016-National-NAGPRA-Program-Report.pdf, 6.

[23]“Fiscal Year 2016 Report: National NAGPRA Program,” National Native American Graves Protection and Repatriation Act (NAGPRA) Program, National Park Service, U.S. Department of the Interior (2016),https://www.nps.gov/nagpra/DOCUMENTS/Reports/FY2016-National-NAGPRA-Program-Report.pdf, 6.

[24] Ibid.

[25] Ibid, 7.

[26] Isabel T. Kelly, James E. Officer, and Emil W. Haury, “The Hodges Ruin: A Hohokam Community in the Tucson Basin,” Anthropological Papers of the University of Arizona, No. 30, Gayle Harrison Hartman, ed. (Tucson: University of Arizona Press, 1978).

[27] Calendar sticks are the Pima and Tohono O’odham manifestation of concern for relating the present to incidents occurring in the past, linking the past with the present. Ruth M. Underhill, “A Papago Calendar Record,” The University of New Mexico Bulletin, Anthropological Series, Vol. 2, No. 5 (138).

[28] Donald Bahr earned his Ph.D. at Harvard University with a thesis about Piman shamanism. He edited O’Odham Creation and Related Events as Told to Ruth Benedict (Tucson: University of Arizona Press, 2001), authored Pima and Papago Ritual Oratory: A Study of Three Texts (San Francisco: Indian Historian Press, 1971), and coauthored, with Juan Gregorio, David I. Lopez, and Albert Alvarez, Piman Shamanism and Staying Sickness (Ta:cim Mumkidag) (Tucson: University of Arizona Press, 1974). Bahr also wrote numerous articles about Pima and Tohono O’Odham culture. See Bernard L. Fontana (with the assistance of Michael U. Owens). “An Annotated Bibliography of the Tohono O’odham (Papago Indians,” (2004), https://home.nps.gov/applications/tuma/bibliography/.

ATADA is the largest US professional organization of art dealers specializing in Native American and international tribal and ethnographic art. Over the years, ATADA has grown to include private collectors and museum members. 

What is the ATADA Returns Program?

The ATADA Voluntary Returns Program is a community-based initiative designed to bring sacred and highly valued ceremonial objects to Native American tribes. Returns take place through a consultative process in which ATADA representatives work directly with tribal community and spiritual leaders. The program evolved through the recognition by art dealers and private collectors that certain objects, although legal to own, had great importance to tribal communities, and that their return could invigorate and enhance tribal community life. 

Since it began in late 2016, the ATADA Voluntary Returns Program has brought over 100 sacred and ceremonial objects from private collections and dealer inventory to Southwestern tribes at zero cost to the tribes. Additional donated objects are presently being considered by tribes for their return.

ATADA sees the Voluntary Returns program as the right thing to do – and as a necessary step for art dealers to take in order to build to positive relationships between the art trade and tribal communities. As a national organization, ATADA is ready to facilitate returns outside of the Southwest to tribal communities through a wide range of contacts across Indian America.

What Other Steps Has ATADA Taken?

In complementary actions as a professional organization, ATADA has adopted by-laws forbidding its members to trade in items in current ceremonial use. ATADA has also established due diligence guidelines to protect buyers and sellers from trading in unlawfully acquired items that were sold or removed from tribal communities without the communities’ permission or knowledge.   In addition, ATADA sponsors education programs to inform collectors the public about current laws and developing policy on tribal art. The Members of ATADA have undertaken not to acquire, display, or sell items known to be of important current sacred, communal use to Native American tribal communities. 

What Kinds of Items Are Returned?

ATADA cannot make determinations regarding the sacred or communal status of specific items of the various tribes. ATADA also recognizes that similar objects may hold different status in different tribal organizations. When returns are facilitated through ATADA, the tribes are contacted directly for their input and advice.

ATADA has facilitated the return of a Zuni war god, Acoma and Laguna flat and cylinder dolls, Hopi ‘friends’, Navajo Yei masks, numerous prayer sticks, bandoliers, rattles, arrowheads and other jish that are part of a medicine bundle. Items generally regarded as sacred include altars and altar elements, and items from shrines belonging to the community.

ATADA does not regard items made for commercial or individual use by Native American artisans as sacred or communal, regardless of age. The age of an item does not determine its religious significance.  Based upon discussions with tribal members, ATADA believes that the items necessary for the continued observance of contemporary religious ceremonies are of most importance for returns. The ATADA Bylaws include a short list of items in current ceremonial use that ATADA is aware of through past claims by tribal groups. As ATADA learns more, the bylaws may be further amended.

Is the ATADA Voluntary Returns Program Related to NAGPRA?

No. The ATADA Voluntary Returns Program is not a private-sphere substitute for the repatriation of human remains and communally-owned objects under NAGPRA, a federal law. Under NAGPRA, museums and institutions that receive federal funding are required to create lists of human remains and certain broad categories of Native American objects in their inventories, and to provide these lists to the associated tribes, which can request their return. 

NAGPRA covers a wide variety of materials from items of common use and items in trade, to items deemed sacred or inalienable cultural patrimony. However, NAGPRA participant institutions have interpreted NAGPRA criteria very differently. No fixed standard for identification has been established for ‘sacred’ or ‘inalienable’ objects through NAGPRA. 

The ATADA Returns Program is an art dealer and collector sponsored initiative, designed to bring objects that have circulated legally in trade, usually for decades, back to tribes on a purely voluntary basis as gifts or donations to the tribal communities. The returned items are usually objects that are needed for present-day ritual activities by the tribes. Unlike in museum and institutional collections, human remains are almost never found in private collections, and the Voluntary Returns Program does not handle them. Individuals in possession of human remains should contact federal authorities directly to return them.

How Can Someone Return an Object to a Tribe?

ATADA created the Voluntary Returns Program specifically to return objects to the proper tribe, in a private and culturally-sensitive process. The first step for a prospective donor is to contact ATADA Board member Bob Gallegos, the chairperson of the Voluntary Returns Program. He can be contacted at 505-262-0620, email Gallegos@nmia.com, or by mail at 215 Sierra Drive, SE, Albuquerque, NM 87108.

(If a donor wants to make a gift of an object to a tribe, the donor can contact the tribal cultural heritage officer of a tribe directly. Tribal Historical Preservation Officers for each tribe may be located on the Internet at http://nathpo.org/wp/thpos/find-a-thpo/, or visiting the websites for specific tribes.)

What is the Process?

On receipt of an object or photograph of an object proposed for return, the chairperson of the Voluntary Returns Program will contact tribal elders from the various tribes to which the item may belong, emailing them a photograph or drawing of the item. In ATADA’s experience, the tribal elders and cultural officers have been very helpful, either claiming objects as belonging to their tribe, or suggesting that the chairperson contact another tribe. This process is followed until the correct tribal organization is located. 

If a tribal cultural entity fails to respond within six weeks, it is assumed that the tribe does not wish to have the object returned. In the event that no claim is made, the item will be returned to the prospective donor collector, dealer or museum. In the event a claim is made, a receipt will be prepared that will be signed by the proper tribal authority.  This receipt will have a photograph of the item and the tribal group will sign acknowledging receipt of the item. This receipt is for documentation purposes; it is not a receipt for a charitable gift for IRS purposes. (See below, 

How Does the Return Take Place?

ATADA follows the lead of the tribe, both in determining where the object is returned and how it is transported. In some cases, tribal representatives will come to pick up the object in Albuquerque. The chairperson has made numerous trips to Hopi, Navajo, Zuni, and other tribal communities (sometimes a 5 hour drive each way) in order to return items in person, ensuring that each item is treated respectfully.

How Does ATADA Know if an Object is Sacred or Ceremonial?

ATADA does not make that decision; ultimately, it is made by tribal members who are initiates or cultural specialists. Certain types of items may be inferred to be currently of religious importance to tribes based upon historic photographs and publications. 

Can ATADA Assist in Determining if an Item is Appropriate for Sale or Consignment?

If an ATADA member is not sure of the ceremonial status of an object offered to them for sale or on consignment, the chairperson of the ATADA Voluntary Return program can be contacted for assistance.  

If this is the case, the religious elders of a tribal group (that we can best determine) is contacted.  A photo will be emailed.  They will either make a claim or say it is not theirs.  Sometimes, the tribal group will be able to make suggestions as to the proper group.  

Can Donors Obtain a Tax Deduction for Donations to Tribes?

Although gifts to recognized tribal entities are treated similarly to gifts to government or to a public charity for tax purposes, only a few tribes are willing to sign an IRS 8283 form. At least one Pueblo, Acoma, is willing to provide an 8283 Donation Form on receipt of a gifted object, so that the donor can take a charitable deduction for item’s fair market value.  The Navajo nation is working on providing similar documentation.  However, tribes will not provide valuations for ceremonial objects and have concerns about signing the necessary 8283 forms, even though these forms only acknowledge receipt by the tribal entity. 

ATADA has been working with the tribes in order to encourage tribal entities to provide receipts suitable for a tax deduction. ATADA believes that a format acceptable to both the U.S. Internal Revenue Service and the tribal entities could be developed, and would encourage many additional gifts to tribes. 

What Else is Required?

If the ATADA Voluntary Return Program is asked to research or return an item, the owner must sign a form relieving ATADA of all liability and giving it permission to proceed with discussions with the tribes.