Thursday, September 22, 2016

NAGPRA - Repatriation - US Government

 It is important that any collector of Native American Art read this and the letters that follow.  To stay up to date one should also follow the Committee for Cultural Policy newsletter. Jim Owen gave me permission to publish his letters of response to STOP. As an attorney and collector Owen understands the law better than our legislators.

 1. COMMITTEE FOR CULTURAL POLICY Native American Art Dealers and Collectors Express Concerns Over STOP Act
Native American Art Dealers and Collectors Express Concerns Over STOP Act   
August 31, 2016.  The Antique Tribal Art Dealers’ Association, Inc (ATADA) has begun a public awareness campaign on the unforeseen consequences of enacting S. 3127, The Safeguard Tribal Objects of Patrimony Act of 2016, also known as the STOP Act.* The proposed law is currently before the Senate Committee on Indian Affairs. ATADA’s position is that while the proposed law has a legitimate goal of ensuring that important communally-owned cultural items should not be unlawfully sold, it will do little to further the return of objects. Instead, it will result in significant harm to tribes and other stakeholders, including US museums, art collectors, small businesses, and contemporary tribal artisans, as well as to communities that rely economically on tourism and Native American art fairs, particularly in the Southwestern US.

According to ATADA, the STOP Act “was drafted primarily in response to Hopi, Acoma, and Navajo concerns that items sacred to their culture had been sold at a series of auctions in Paris, France. The tribes felt that the auctioned items were inalienable and that no individual had a right to sell them… the French courts held that the tribes had no standing and no claim, based upon a lack of recognition of tribal or communal ownership under French law. The STOP Act’s prohibition of export is intended to halt foreign sales of Native cultural property by creating a new crime that never existed before under US law, the criminal export of US cultural property.”

ATADA identified the following issues with S. 3127:
•The STOP Act is unnecessary because export for sale of unlawfully acquired artifacts is already illegal under ARPA and NAGPRA.
•The Act does not identify the objects each tribe considers sacred or community owned.
•The  Act creates no administrative body or standards for determination of what is claimed.
•The  Act will damage businesses, cost jobs, and reduce tax revenue.
•While voluntary donation of important sacred objects should be encouraged, tribal legal claims for restitution of unlawfully possessed objects belong in the courts, not in wholesale restitution.
•The  Act will result in consumer confusion and harm Native artisans and legitimate businesses because of consumers’ assumption that all Indian artifacts are tainted by illegality.
•The  Act needs additional consultation with tribes and with other impacted US stakeholders, including collectors, art dealers, academics, and museums.
A lengthier summary of issues is available here.
The Antique Tribal Art Dealers Association, ATADA, was originally established in 1988, in order to set ethical and professional standards for the art trade and to provide education for the public. ATADA membership has grown to include hundreds of antique and contemporary Native American and ethnographic art dealers and collectors, art appraisers, and a strong representation of museums and public charities dedicated to the promotion, study and exhibition of Native American history and culture.
The ATADA Foundation is a separate, non-profit 501(c)(3) entity that advances awareness of the cultural, historical, and aesthetic importance of tribal art. The ATADA Foundation has awarded scholarships for young Native artists and endowments to museums and research institutions throughout the US.
Disclaimer: The author of this post, Kate Fitz Gibbon, is currently a consultant to the Antique Tribal Art Dealers’ Association, Inc.

2.  WASHINGTON DC - Re:  S.3127 August 25, 2016

Dear Senator Barrasso,

Thank you for your letter of Aug. 16th.  Enclosed is my response to Senator Heinrich’s email regarding S.3127 from Mr. Treply, one of his staff members.  I would request my response and the Addendum be made part of the Indian Affairs Committee record.

The underpinnings of S.3127 simply do not fit the dialog as to the Hopi masks and the Acoma shield.  NAGPRA and it’s trafficking section would not apply to either. Judge Roberts in Geronimo v. Obama was spot on: “plaintiffs cite a law (NAGPRA) that only applies to Native American cultural items excavated or discovered after 1990.” The masks and shield, along with Acoma kachina dolls, were not excavated or discovered. They are perishable items which would not survive in the ground. They were sold by tribal members long before1990.  By the Acoma’s own admission the shield “ went missing” in the 1970’s.

The most insidious portion of S.3127 is the proposed penalty provision of 10 years. Senator Heinrich’s press release states that the 10 year sentence makes cultural law penalties the same as other theft statutes. He cites the National Stolen Property Act and Theft of Government Property. Unlike someone going onto government property and stealing an army jeep, the items he alludes to are not “stolen” they are PURCHASED by a dealer or collector. His example is like comparing apples to oranges.  Dealers and collectors do not steal “cultural items“, they buy Indian art.  Further, under NSPA there is a felony threshold of $5000.  Nothing in S.3127 has any threshold amount. Neither NAGPRA nor the Antiquities Act has such language (ARPA has $501.). So if someone BUYS two $10 items, that someone else with a vested interest says is a cultural item, that buyer could go to prison for 10 years. The same holds true if I BUY an item on the Internet.  While S.3127 may be deemed politically correct by some, it is not morally or legally valid when the underlying facts and laws are known.

If for no other reason than the penalty provision, I would ask for a no vote from you regarding S.3127.

Again, many thanks for your consideration.


                                                               Jim Owens


Aug 7, 2016 
Mr. Treply:
Thank you for your response. It is appreciated.  However, I have to say that the underpinning of S.3127 and the bill (amendment) are based on invalid reasoning.  As to the cultural property being discussed: THE TRIBES ARE NOT THE VICTIMS BUT THE PERPETRATORS.  Harsh but true-let me explain. As to the Hopi masks they, up to at least the 1990’s, were sold by tribal members. The typical situation was a Hopi would go into a dealers shop in Phoenix and tell the dealer he has acquired the mask from his father, grandfather, or uncle and wanted to sell it. No NAGPRA so it and other cultural items were similarly sold. Most, if not all of the masks sold at auction, were in the market place long before 1990. If given an opportunity we can produce dealer who will attest to the above stated facts.
As to the Acoma shield: if you read the Sarracino affidavit she states as to her Grandfathers shield “My grandfather, as the shields caretaker ,kept the shield in the home of my grandmother…which is on the mesa top at Acoma…I remember the room in which the shield was kept…I believe it to have gone missing in the 1970’s when our home was broken into”. I imagine you have been to Acoma and know it was and is a fortress. The Acoma people kept the Spanish away for days just by throwing rocks down on them! No black, white or Spanish American could go up on the mesa and not be detected. They would literally stick out like a sore thumb!! Any reasonable person would conclude the shield was “stolen” by either a family member or other tribal member. We would sure like to see the lost Sheriff’s report. I think any law enforcement officer would reach the same conclusion.
So when the press releases say the masks were” stolen” that cannot mean by dealers or collectors or their agents, but has to mean by tribal members. The Hopi mesas are similar in being isolated to the general public. Why don’t the Senators and for that matter the tribes be truthful as to the original sellers?
As to the trafficking portion of NAGPRA  sec. 4(1170) it says “cultural items obtained IN VIOLATION of (NAGPRA)”. So for S.3127 to have any validity there would have to be a NAGPRA violation. There are two cases in point. The first most often cited by the feds and tribes is U.S. v. Corrow, 119 F. 3d 796(10th Cir. 1997). A close reading of Corrow will tell you the sale was in 1993. The Court when discussing trafficking specifically held “…sacred objects and objects of cultural patrimony PRESENTLY ON FEDERAL AND TRIBAL LANDS.” The federal district court case in Washington DC, Geronimo v. Obama decided by Judge Roberts similarly held “ plaintiffs cite a law(NAGPRA)that only applies to native American cultural items excavated or discovered after 1990”.   Also see the act itself under the ownership section “excavated or discovered AFTER the date of enactment”. The shield we know wasn’t excavated or discovered by the Sarracino affidavit and neither could the masks be excavated or discovered because they are perishable items.
With that background let us look at the bill-S.3127. Who is going to say the item is a cultural item? Who is going to say it violates NAGPRA? Who is going to KNOW when it entered the marketplace? It’s in a package being sent out of the United States. If its shipment cannot be legally stopped the bill is meaningless. Some custom agent certainly does not possess the expertise. I can ship my property for sale anywhere  anytime . To deny one that right is a clear violation of the 5th Amendment “takings” provision. NAGPRA even recognizes the 5th Amendment in Sec. 2 (13) “right of possession”. Further read Sherry Hutt’s testimony in Ap.1999 before the Senate Indian Affairs Committee. She was the head of NAGPRA for many years
I think the bill should be killed but I cannot help but comment to the ten years amendment. If I kill someone the Federal sentencing guideline for Involuntary Manslaughter is 1 year to 11/2 years. This amendment proposes a sentence 7+ times the penalty  for murder for an item someone with a vested interest in says is a cultural item that violated NAGPRA.
We are wasting a lot of time and money on something if policed by the tribes-pun intended-would go away. They have a remedy just like any other American or entity. You file a replevin action for return of property you claim is yours and go to civil court and present your case.
Thank you for your consideration.

                                                                               Jim Owens


Senator Heinrich says trafficking is increased to 10 years to have S.3127 comport to other "stolen " property statutes. He specifically cites the National Stolen Property Act. His reasoning could not be more flawed. First, there is a big difference between say going on an Army base and stealing a jeep vs. a dealer or collector PURCHASING an alleged cultural item. Such items are not stolen by us, they are purchased!! Buying an item on the Internet cannot be logically compared to stealing an item. Further, if you read the NSPA it has a $5000.00 threshold for felonies. Neither NAGPRA nor the Antiquities Act have such language (ARPA has $501.00). So if you buy two $10.00 items that someone with a vested interest says are cultural items, you could go to federal prison for 10 years. How ridiculous!! I would hope Senators would see this flawed reasoning if brought to their attention. We buy the items, we do not steal them. If anyone steals a cultural item, it is their own tribal member.

 2. THE HAGUE Faqi al-Mahdi Pleads Guilty to Destroying Timbuktu Monuments
Faqi al-Mahdi Pleads Guilty to Destroying Timbuktu Monuments   
August 25, 2016.  Ahmad al-Faqi al-Mahdi has plead guilty to the crime of destruction of monuments International Criminal Court (ICC) in the Hague. This is the first case in which destruction of world heritage has been treated as a war crime, and the first time a defendant has entered a guilty plea before the ICC.
Ahmad al-Faqi al-Mahdi, aka Abou Tourab, was accused of leading the campaign to destroy nine mausoleums in Timbuktu, as well as the famous Sidi Yahia mosque, which dated to the 15th and 16th centuries. In videos shown in the court, he was seen smashing an ancient door himself.  Prosecutors originally sought to impose a 30-year sentence; Faqi may have been willing to plead guilty in order to obtain a lesser sentence. Prosecutors have agreed not to object to a 9-11 year sentence instead.
Faqi al-Mahdi told the court, “I seek their forgiveness [of the people of Timbuktu] and I ask them to look at me as a son who has lost his way,” he said. “Those who forgive me will be rewarded by the almighty. I would like to make them a solemn promise that this was the first and the last wrongful act I will ever commit.”
Faqi al-Mahdi was the head of the Ansar Dine “Brigade des Moeurs,” the enforcers of morals under Ansar Dine’s interpretation of Islamic law in the captured city of Timbuktu in 2012. Human rights groups are not pleased that Faqi is being charged only with the destruction of cultural heritage. They have pointed out that as the chief of Islamic Police, he not only caused women to be punished for failing to adhere to strict rules of veiling and seclusion, but also encouraged Ansar Dine forces to engage in other crimes against civilians, including rape, forced marriage, and sexual slavery. A statement by FIDH (Fédération internationale des ligues des droits de l’homme), said: “Destruction of historic and religious sites is a serious affront to humanity, as it impacts our common heritage. However, a focus solely on cultural damage should not overshadow horrific violence against individuals, especially when both types of crimes were perpetrated simultaneously by the same people.” FIDH, AMDH (Association Malienne des Droits de l’Homme) and 16 other human rights organizations in Mali have also filed a complaint on behalf of 33 victims of crimes committed in Timbuktu before the High Court of the Commune 3 of Bamako. The complaint accuses Faqi al-Mahdi and 14 others of war crimes and crimes against humanity, including sexual and gender-based crimes

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