Sunday, April 21, 2013

My Word Spring 2013

This has been a very strange few months with my experiences in Paris, the Sothebys Pre-colmbian sale, and the Neret-Minet Hopi sale. I have commented on much of this in this issue. This past week I also visited the Indiana University Art Museum where I was given a fair opportunity to express my concerns to the museum director and representatives of the IU Foundation and the Provost's Office. I have given my word that before commenting further I would give Dr. Gealt the opportunity to review my comments and respond. Hopefully this can be done in the next issue of the Newsletter. At this point I think it is important to note that the meeting was productive and there was a good exchange of ideas. It is my opinion at this point that Indiana University does want to protect the Wilegus collection certainly because it is the right thing to do but also because they understand the international attention a collection of this quality can bring. The IU leadership seems by their projected plans to welcome this opportunity to increase the visibility of both the museum  and the university. JB

Benin Art

Late18th to Early 19th century
Ht 6 7/8"
Ex Jay Last, Beverly Hills

Hip mask
Late18th to Early 19th century
Ht. 7"
Ex Harry Franklin, Beverly Hills

Ethnographic Items at Igavel Online Auction

New York City April 21, 2013 : Igavel Auction house is now offering ethnographic art in their current sale of Asian, Ancient, and Ethnographic Works of Art Auction which will be live online until May 1st 2013. Objects may be purchased online and shipped at the purchaser's expense to whatever location selected. Igavel's guarantee is printed below and is available online.
5) Guarantee Policy. All items on iGavel are guaranteed for authenticity and condition, subject to the specific terms of these guarantees listed below:
a) Each Seller guarantees the authenticity of the object as described in the lot heading for a period of 60 days from the closing date of the sale of that lot on iGavel. This guarantee is given only to the person who bought the lot and not to any third party or subsequent owner.
The terms of guarantee for authenticity do not cover adjectival terms or statements of opinion and only apply if the lot’s worth is diminished due to the amended description.
b) Each Seller guarantees the condition of the lot as described in the lot condition field for a period of 21 days from the closing date of the sale of that lot on iGavel. The guarantee warrantees that the description of the lot condition is substantially correct based upon a fair reading of the lot’s description. No guarantees of condition are made for any frames, mountings, glass, or bases
accompanying a lot.
c) All property sold on iGavel is expected to show some evidence of age and wear. Other than the specific guarantees for authenticity or condition, all property is sold “as is” and the Seller and iGavel make no representations or warrantees about any other aspect of the property including reproduction or intellectual property rights.
Among the objects in this sale are a fine Lwalwa copper plated mask from the collection of Jay Last,  a fine Bembe figure from Everett Rassiga, a Jalisco maternity sold by John Menser to a Forth Worth collector, and among other things a small Ndebele collection..

When is Enough Really Enough

No one seems to be asking exactly what these countries want that are protesting the sale of Pre-Columbian art. It certainly goes far beyond stopping a sale. There are interests groups within the U.S. that believe strongly that the firewall for acquisitions is 1970 suggesting that anything acquired and imported into the United States prior to this date will be untouchable. The countries of orgin in Mexico, and Central and South America have not publicly agreed to this date. In addition the basis of their protest on the Barbier sale  pointedly stated a very different time frame.

Peru - 1822 - "The Peruvian government says that it has no information about how the pieces left Peru for the collection.
“It is possible to deduce that their exportation must have been clandestine, given that from April 2, 1822 Peruvian regulations prohibit the removing of archaeological goods without government authorization,” the Ministry of Culture said.
The government said it plans to “act rapidly to place charges that these goods were presumably obtained in an illicit manner.”" Wall Street Journal.

Mexico -  1972/1827 "Mexico raised concerns as to 51 of the objects , which it claims belong to the national government under a 1972 law, and its National Institute of Anthropology and History sent a diplomatic note to the French governing seeking to enlist its help in stopping the auction. Before the 1972 law, Mexico also had export restrictions dating back as far as 1827"

 Costa Rica - 1938 - "Under Costa Rican law, pre-Columbian objects found after October 6, 1938 are public property and can therefore be claimed by the National Museum, the custodian of the country's treasures."

Guatemala - 1966 " Guatemala, which declared national ownership of all archaeological materials in 1966, requested the return of 13 items"

Nord on Art ( commented on the the UNESCO date of 1970 for legitmizing Pre-Columbian acquisitions "A dated, pre-1970 provenance is slowly becoming a collector’s benchmark and is already recommended by the American Association of Museum Directors as a cut off date for acquisitions (though there is wiggle room). However, there are also individual national statutes with widley varying cut-off dates that govern the legal export and/or sale of antiquities. Nor does that pre-1970 criteria settle long term disputes about the acquisition of the Parthenon/Elgin Marbles and the Benin Bronzes."  Nord is clearly saying that 1970 is a benchmark for the collecting world not the originating countries.

"The French government declined to intervene in the matter. Media reports cite a French diplomat as noting that the French government did not find any of the artifacts on the International Council of Museums' red list endangered cultural objects. " This quote also suggest an interesting dilemna. Does IFAR and ICOM list objects as stolen because the priginating countries say they are stolen. This situation is a parallel to the  problem with the National Stolen Property Act which in some cases has agreed that objects described by a foreign government as stolen are regarded by the U.S. government as stolen. In essence the US government now says that any importer or collector is guilty until proven innocent.

The strategy now that seemingly these countries are organizing their efforts is to bully and harrass the sellers. This can be done relatively inexpensively through the media or local auction site protests. It seems logical that they will use whatever influence they might have to get other countries to enforce laws that may or may not have some tested credibility with their own countries. Tom Mashberg of the New York Times recently advised his readers on April 12th: "The best chance for a quick resolution to the sale may be to generate enough headaches for the auction house, the consignor, and any potential buyers. The New York Times piece will help raise the profile for the auction, but it will also require some vocal and I'm sorry to say expensive, actions on the part of the Hopi or their advocates." This is the strategy of the day regardless of whether in this case you are discussing Hopi masks or in a broader sense the approach to attacking museums, collectors, or dealers inyterested in Pre-Columbian art.

"In most Latin American countries the very idea of pre-Columbian heritage has been a strategy to reinforce national unity."  That certainly might be part of the motivation, but what do these countries want? Do they really want the collecting countries to send back everything  that was taken out of the originating countries since the end of the 19th century? Most of these countries have not created systems to deal with the objects currently within their countries. Do they have the staff or money to stop the looting within their countries or for that matter to process thousands of objects being returned? Probaby not. But some say that doesn't matter the objects still belong to the originating countries. I suspect the same people would argue that objects and archaeoogical sites should have been left to crumble when both private and public collectors removed the objects with the assistance in many instances of government officials. If those with an agenda contrary to collecting are allowed to rewrite history, then clearly they will. Ultimately this conflict seems to be more about politics and money than it does about preserving important works of art.

It should be clearly noted and emphasized here that looting is a problem and that some objects  are stolen. Most appraisers, collectors, and curators are opposed to owning property that  knowingly has been stolen. Much can be done both in the indigenous countries and in the collecting countries by removing the strident accusations and finding balance and areas where there can be cooperative efforts. Maybe that's a bit idealistic but the current direction will not be good for anyone.

Paris Based Néret-Minet Auction House Blasted by Worldwide Media for Hopi Sale

PARIS: April 12, 2013 - The Néret-Minet auction house in Paris has auctioned a number of Hopi objects, many of which are thought to be more than 100 years old, and many of which are considered sacred by the Hopi. Leigh J. Kuwanwisiwma, director of the Hopi Cultural Preservation Office in Kykotsmovi, Arizona says of the objects: "Sacred items like this should not have a commercial value. . . . The bottom line is we believe they were taken illegally.”

The auction house claims that the objects were purchased as early as the 1930's, and that all the objects were sold as long ago as the 1960's. The media loved this story and the coverage literally was picked up by news outlets worldwide. Unfortunately all the stories had one view and that was from the perspective of the Hopi. The article below from the New York Times even solicited support and suggested a strategy for stopping the sale. This is not exactly what was taught in reporter school in the past. The first article is before the sale.. the second is after the sale. My comments follow.
Before the sale: "Historians say many Hopi artifacts were taken long ago by people who found them unattended in shrines and on altars along the mesas of the Southwest. Others were confiscated by missionaries who came to convert the tribe in the late 19th century. Some were sold by tribe members. But even those sales were not legitimate, Hopi leaders say, because they may have been made under duress, and because the tribe holds that an individual cannot hold title to its religious artifacts — they are owned communally.
This of course is why many of these objects were acquired in the last century. The Hopi have a fundamentally different view of property and sacred objects. They have a communal relationship to these objects. When that view of objects is linked with western legal systems, the results can be messy. But I think there are a number of legal challenges that can be made to the auction of these objects.
 Possible action could include an action for the recovery of stolen property. The Hopi would have to establish that they have a relationship to these objects that is sufficient to allow a French court to deny the sale. Or the United States government could intervene and protest the sale on the grounds some of the objects were removed from Federal or tribal lands and are considered stolen under the Archaeological Resources Protection Act. But the difficulty with both of those legal options is the problem of proof.
 The best chance for a quick resolution to the sale may be to generate enough headaches for the auction house, the consignor, and any potential buyers. The New York Times piece will help raise the profile for the auction, but it will also require some vocal and I'm sorry to say expensive, actions on the part of the Hopi or their advocates.
 In a case like this, it is true that seldom have we seen works of art from the United States exported and sold in a way which upsets the creator culture. If the market for Native American art continues to be this robust, it may take more concerted action on the part of the Federal government to intervene. I don't think this is an issue of uneven application of international cultural heritage law, much of which is soft. The reporting and some reaction seems to suggest the U.S. does a better job of helping foreign nations in their efforts to repatriate. I don't get the sense that that is right. Rather I'm not sure we have a good robust set of tools to seek repatriation from abroad when it is warranted. And there are a number of reasons for that. For one, I don't think Native American tribes have been confronted with this problem very often either because it didn't happen or they weren't aware. But also we don't have a good organized cultural apparatus in the United States. We rely on lots of very capable Museums and other organizations. But in the case of international repatriation. It really helps to have an active and organized set of voices acting in concert. We just don't have that in the United States. So there are challenges for the Hopi here, but other similar groups have shown that patient and persistent appeal to reason can impact the disposition of these objects."Tom Mashberg, New York Times

After the sale: "A contested auction of sacred Hopi Indian artifacts went forward on Friday in Paris  and generated more than $1 million in sales, despite the presence of protesters inside and outside the auction house who urged patrons not to take part. The featured item, a headdress known as the Crow Mother, drew intense interest. Bidding on this 1880s artifact, which had a high estimate of $80,000, soared to $210,000, drawing applause from a crowd of some 200 people in the sales room and protest from a woman who stood up and shouted: “Don’t purchase that. It is a sacred being.” Earlier, a woman who stood and began to cry out against the sale had been escorted rapidly from the room, which had tight security. The sale of American Indian artifacts generated $1.2 million, including the buyer’s premium (the auction house’s fee), according to a spokeswoman for the seller, Néret-Minet Tessier & Sarrou. That is roughly what the house had estimated the sale would bring before the Hopi tribe lodged its complaints and the auction became the object of international scrutiny and diplomatic talks between the United States and French officials. Five of the 70 items did not sell, and many pieces sold below the low estimate, but whatever hesitancy buyers showed toward some items was offset by the enthusiasm shown toward the featured piece. A few hours before the sale, a Paris municipal court judge had ruled that it could go forward, finding that the masklike objects, despite their divine status among the Hopis, could not be likened to dead or alive beings. A lawyer for the Hopis had argued that the tribe believes that the works embody living spirits, making it immoral to sell them under French law. The Hopis say the artifacts, known as Katsinam, or “friends,” were stolen from tribal lands in Arizona. Many are more than a century old. The auction house has said that a French collector obtained them legally decades ago. In a statement, the Hopi tribal chairman, LeRoy N. Shingoitewa, said: “Given the importance of these ceremonial objects to Hopi religion, you can understand why Hopis regard this — or any sale — as sacrilege, and why we regard an auction not as homage but as a desecration to our religion.”
 Before starting, the auctioneer, Gilles Néret-Minet, told the crowd that the sale had been found by a judge to be perfectly legal, and that the objects were no longer sacred but had become “important works of art.” He added, “In France you cannot just up and seize the property of a person that is lawfully his.”
 Bo Lomahquahu, a Hopi tribe member and university exchange student who stood outside the auction, said the atmosphere inside was “very surreal and heartbreaking.”
 “They are truly sacred to us; we feed and care for them,” he said in a cellphone interview. “And to see people walking out with them in bags, like some object, I felt really helpless and hurt.”
 The United States ambassador to France, Charles H. Rivkin, said through a spokesman, “I am saddened to learn that Hopi sacred cultural objects are being put up for auction today in Paris.”
 The auction house said that one of the artifacts was purchased for $4,900 by a foundation that intends to return it to the tribe.

 But Pierre Servan-Schreiber, a lawyer from Skadden, Arps, Slate, Meagher & Flom who represented the tribe pro bono in the court case, said that the outcome was “very disappointing, since the masks will now be dispersed” and that the Hopis will most likely never see them again." New York Times
Not one reporter wanted to talk about what has happened in the past on the Hopi Reservation. First let's define  the controversy. Hopi masks are either individually owned or communally owned as the property of a clan or a group of Hopis. Clan pieces can never be sold and are always considered to be stolen if they are found off the reservation. The individually owned masks are a bit trickier. There are certainly a significant number of Hopi who believe that even these individually owned masks are integral ceremonial objects functioning within the Kachina cult and are in essence spiritually owned by all Hopis. To my knowledge there is no law on Hopiu forbidding the sale of an individually owned mask. I have no knowledge of any Hopi ever being punished for the sale of an individually owned mask.

"Every Hopi is involved in ceremonial life, the men with the Men’s Societies and the women with the Women’s Societies. A man usually belongs to one society and one kiva only. He does not try to learn about the kiva ceremonies of a society other than the one to which he belongs. In this way we keep a balance of the religious facets of the Hopi way of life. In this way we preserve the sacredness of the societies, the kivas, and the rituals." HOPI NATION: Essays on Indigenous Art, Culture, History, and Law University of Nebraska - Lincoln Year 2008 p.73

The problem comes within the Hopi leadership. There is not one monolithic force that dictates what
all Hopi will do. Some Hopi have become disenchanted with the old ways.. some have converted to Christianity. And as I stated above I have never heard of a Hopi being punished for selling his individually owned kachina mask. The question then becomes who would stop a Hopi from selling his mask? If it is not illegal on the Hopi Reservation then how could it be illegal off the Hopi Reservation? If you are recalling some of the problems with the National Stolen Property Act, you are right. At a minimum you have to establish the rightful owner's loss before you can proceed under our legal system. This, of course, begs the question: So that they might have the credibility of having at least proof that a theft occurred, why haven't the Hopi established their property rights in our legal system? Is it credible to believe that I am the first to figure this out? All property owners have rights and that includes even collectors who buy Hopi masks that are personally owned by the seller. In the absence of facts to the contrary it sounds to me that from a legal point of view the French judge got it right.

"Other modern institutions are operating in our communities right now. The Hopi Tribal Council is a large organization which is working with new ideas and gaining power. Not all villages nor all people recognize the Tribal Council, but all Hopi have to be involved with it. There is a need to know whether you agree or disagree with the Council, whether you are a friend or enemy to Council policies and actions. Community centers are now being built and programs developed in all Hopi villages; these centers are a political arm of the Tribal Council. Traditionally, the people would gather in kivas to listen to the elders and to make tribal judgments. But now we have our community centers where policies are being determined." HOPI NATION: Essays on Indigenous Art, Culture, History, and Law University of Nebraska - Lincoln Year 2008 p.51.

In a 1990 article for the Seattle Times Mark McDonald offered this: Most clan pieces are either kept in "kivas,'' the subterranean ceremonial chambers of the Hopi, or hidden deep inside clan houses in the villages. All of these are virtually impenetrable by non-Hopis."Dealers aren't going into the villages and stealing this stuff,'' said Jordan Davis, co-owner of the Morningstar Gallery in Santa Fe, N.M."The Hopis themselves are stealing it - 9 1/2 times out of 10 it's the Indians.'' Hopi tribal officials admit privately that alcoholic, drug-addicted or impoverished Hopis are the likely culprits in the thefts of profound pieces from private places. "Unfortunately, Hopis are sometimes involved,'' said Jenkins, the cultural preservation director. "As a Hopi in my right mind, though, I wouldn't even take my `friend' outside the village.'' Although ownership is a slippery concept among the Hopi, it is widely accepted that no one person can "own'' clan or society pieces, which are entrusted to an elder but are still communally held. Thus, if such a piece appears off the reservation, it has unquestionably been stolen. The real dispute about ownership comes with ceremonial pieces that are important - but not absolutely crucial - to the religion. Many dealers and collectors - and some of the Indians less taken with the traditional ways - believe these artifacts can be individually owned.
"The younger (Hopi) people are thinking more in the present day,'' said Joshua Baer, a well-known Santa Fe dealer. "They want to make some money off pieces they've inherited or bought from another Hopi.'' Tradition-minded Native Americans, however, maintain that anything old or even vaguely ceremonial - a Hopi rattle, a Navajo weaving, an 18th-century Acoma pot - is part of their endangered tribal patrimony and should remain on the reservation. This hard-line approach has created an angry backlash against some Indian claims. Gone are the days when a Hopi, for example, could successfully walk into a gallery or a museum, point at something and say, "That belonged to my great-grandfather, and I want it back.'' "The dirty little secret of all this is that the Hopis want it both ways,'' said Baer. "They want to sell things, and they want to get them back.'' Copyright (c) 1990 Seattle Times Company, All Rights Reserved. Mark McDonald Seattle Times 1990 -

My point here is to suggest that the story is far more complicated than almost any media outlet  has suggested - including our highly regarded New York Times which pretty clearly has an agenda and wants to sell you on their ideas. Hopis do sell their individually owned masks which the French owner undoubtedly acquired in good faith and with no malice. Many Hopi have a far different view on their personal right to own and sell objects than the point of view expressed in all these media reports. As noted above some Hopi do steal from other Hopis and sell objects to collectors and dealers. The idea that you have non Hopis creeping around the reservation and entering kivas and stealing ceremonial material is silly. If it comes off the reservation, it comes off because a Hopi wanted it to come off. In my judgment there are some masks in this sale that could have been proven to be clan masks, which might have given the Hopi are far different outcome. In my judgment the Hopi and their surrogates screwed up by going for the whole collection instead of making a very important point and repatriating some objects that are critical to their ceremonies. The media wanted a good story to sell their papers or subscriptions and they used the Hopi to achieve their goals. It would have been refreshing to have at least one reporter other than Mr. McDonald back in 1990 to provide us with facts and not hysteria. It seems we all are becoming so strident every time we open our mouths to say anything that all we can hope to achieve is to continue to convince ourselves.