[Senate Hearing 114-535]
[From the U.S. Government Publishing Office]
S. Hrg. 114-535
THE THEFT, ILLEGAL POSSESSION, SALE,
TRANSFER, AND EXPORT OF TRIBAL CULTURAL ITEMS
=======================================================================
FIELD HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
OCTOBER 18, 2016
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
JOHN BARRASSO, Wyoming, Chairman
JON TESTER, Montana, Vice Chairman
JOHN McCAIN, Arizona MARIA CANTWELL, Washington
LISA MURKOWSKI, Alaska TOM UDALL, New Mexico
JOHN HOEVEN, North Dakota AL FRANKEN, Minnesota
JAMES LANKFORD, Oklahoma BRIAN SCHATZ, Hawaii
STEVE DAINES, Montana HEIDI HEITKAMP, North Dakota
MIKE CRAPO, Idaho
JERRY MORAN, Kansas
T. Michael Andrews, Majority Staff Director and Chief Counsel
Anthony Walters, Minority Staff Director and Chief Counsel
C O N T E N T S
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Page
Field hearing held on October 18, 2016........................... 1
Statement of Senator Udall....................................... 1
Statement of Senator Heinrich.................................... 3
Witnesses
Andrews-Maltais, Cheryl, Senior Advisor to the Assistant
Secretary--Indian Affairs, U.S. Department of the Interior..... 5
Prepared statement........................................... 8
Begaye, Hon. Russell, President, Navajo Nation................... 36
Prepared statement........................................... 38
Keeler, Honor, Director, International Repatriation Project,
Association on American Indian Affairs......................... 47
Prepared statement........................................... 49
Riley, Hon. Kurt, Governor, Pueblo of Acoma...................... 27
Prepared statement........................................... 29
Rodriguez, Waldemar, Special Agent In Charge, Homeland Security
Investigations, El Paso, U.S. Immigrations and Customs
Enforcement, U.S. Department of Homeland Security.............. 17
Prepared statement........................................... 18
Schaaf, Gregory, Ph.D., Historian; Professor of Native American
Studies, University of California (Retired).................... 40
Prepared statement........................................... 43
Taplin, Mark, Principal Deputy Assistant Secretary, Bureau of
Educational and Cultural Affairs............................... 14
Prepared statement........................................... 16
Torres, Hon. E. Paul, Governor, Pueblo of Isleta................. 34
Toulou, Tracy, Director, Office of Tribal Justice, U.S.
Department of Justice.......................................... 10
Prepared statement........................................... 12
Appendix
Armijo, Hon. Myron, Governor, Pueblo of Santa Ana, prepared
statement...................................................... 68
Chavarria, Hon. J. Michael, Governor, Santa Clara Pueblo,
prepared statement............................................. 69
Gallegos, Robert V., from Albuquerque, NM, prepared statement.... 71
Molloy, John, President, Antique Tribal Art Dealers Association,
prepared statement............................................. 59
Owens, Jim, from Corrales, NM, prepared statement................ 74
Yepa, Hon. David R., Governor, Pueblo of Jemez................... 72
THE THEFT, ILLEGAL POSSESSION, SALE, TRANSFER, AND EXPORT OF TRIBAL
CULTURAL ITEMS
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TUESDAY, OCTOBER 18, 2016
U.S. Senate,
Committee on Indian Affairs,
Albuquerque, NM.
The Committee met, pursuant to notice, at 10:16 a.m. at the
Indian Pueblo Cultural Center, Hon. Tom Udall, presiding.
OPENING STATEMENT OF HON. TOM UDALL,
U.S. SENATOR FROM NEW MEXICO
Senator Udall. Good morning, and I call this hearing to
order. Today the Committee will hold an oversight hearing on
the theft, illegal possession, sale and transfer and export of
tribal cultural items.
And I would, first of all, just like to welcome everybody
to Albuquerque, especially our out-of-state visitors, and
welcome to Indian Country. And I'd like to thank the Pueblo
Governors for hosting us here at the beautiful Indian Pueblo
Cultural Center.
I felt it was very important to have this discussion in New
Mexico. We are home to 23 tribes. And I'm very pleased that we
were able to hold this important hearing here, with as many
tribal leaders in attendance.
I also would like to thank my colleague, Senator Heinrich,
for joining me today. Senator Heinrich has been working very
hard on this issue. I appreciate his work. And I appreciate his
leadership. And I appreciate our partnership on this topic.
In New Mexico, we have a rich cultural history rooted in
Native American tradition. It is the bedrock of who we are as
New Mexicans.
We celebrate Native American culture in our food, language,
architecture, and art. We even celebrate the contributions of
New Mexico's Native Americans in Washington.
New Mexico is represented in the Capitol building by a
statue of Po'Pay, the Tewa religious leader from Ohkay Owingeh
Pueblo who led the Pueblo revolt of 1680. The statue is one of
two selected by the New Mexico State Legislature to be
displayed in Washington.
Although we celebrate our Native American contributions to
our culture and heritage, we also must work together to address
challenges facing Indian Country.
We must do more to provide an excellent education and
quality health care for our tribal members. And we must help
tribes protect their cultural identity, by preserving Native
languages tribal languages, tribal religion, and lands.
I take my responsibility for representing Indian Country in
Washington very seriously. I work hard to facilitate a
government-to-government relationship, and to help preserve
cultural identity for future generations of tribal members.
That is why we are all very disturbed about the ongoing
problems posed by the theft and sale of cultural items. Over
many years, people have looted and sold important tribal
artifacts for financial gain.
Looters have even taken the human remains of the ancestors
of many tribal members across the country.
Over the last 30 years or so, we have become more aware of
this problem. And we have made meaningful progress to pass laws
to stop it, like the Native American Graves Repatriation Act,
and the Archaeological Resources Protection Act, which have
built on what was done with the Antiquities Act.
But the problem still exists. The enforcement of those laws
has not been strong enough. Some people are exploiting the
loopholes in our current laws, laws that are meant to stop the
theft of important cultural items. And they have exported
deeply important sacred objects to other countries, to be sold
as art.
These items are not pieces of art--they are spiritual
objects--deeply important for tribal identity. And we need to
put a stop to the trafficking of these objects.
In the Senate, I introduced a resolution that strongly
condemns the theft, illegal possession or sale and export of
tribal cultural items.
It calls on Federal agencies to take affirmative action to
stop the aforementioned practices, and to work to secure
repatriation of tribal cultural items back to the tribes.
It also encourages state and local governments, along with
groups and organizations, to work cooperatively to deter these
practices.
My resolution is the companion to a House resolution
introduced by Congressman Steve Pearce. We successfully passed
it out of the Senate with minor changes. And I hope that we'll
see it finalized quickly in November when we return for the
lame-duck session.
I also join Senator Heinrich on his legislation, the
Safeguard Tribal Objects of Patrimony Act, the STOP Act. It
would prohibit the exporting of sacred Native American items
and increase penalties for stealing and illegally trafficking
tribal patrimony.
This is an important piece of legislation. I appreciate his
leadership. I hope it will provide the agencies the tools they
need to prevent the export of sacred objects and items of
cultural patrimony.
I will work with this Committee to make sure this
legislation gets a hearing soon. Earlier this year, I raised
this issue with Secretary Jewell. I asked for the Department of
Interior to work on this issue as part of its trust
responsibility. Secretary Jewell assured me that the
administration is committed to dealing with this problem. And
she highlighted her efforts with her French counterparts.
We have reason for hope, with an example involving the
Pueblo of Acoma.
An upcoming auction of the Acoma Shield in Paris was
canceled after outreach to the auction house and the French
government by myself, Senator Heinrich, and other U.S.
government officials, including Secretary Jewell.
This is a problem that affects all of us, and we need to
work collectively to put a stop to it.
This hearing is an opportunity to discuss the issue, to
talk about its impact on tribal communities, and to discuss
what the Federal Government can do to put a stop to the theft
and sale of important tribal cultural items. My hope is that
this hearing will shine a light on this problem, and result in
strong action on this very important issue.
And, again, I appreciate the administration and other
witnesses for working with us on this issue, and would like to
turn it over to Senator Heinrich for his opening statement.
STATEMENT OF HON. MARTIN HEINRICH,
U.S. SENATOR FROM NEW MEXICO
Senator Heinrich. Thank you, Senator Udall. Good morning,
everybody. I want to say how much I appreciate all of you being
here this morning. And I take great pride in working with New
Mexico's tribal communities. I want to especially thank my
colleague, Senator Udall, for his really critical leadership on
this issue, and the Senate Indian Affairs Committee on which he
sits, for holding this field hearing on tribal patrimony.
This is an issue that I have heard raised far too many
times from too many tribes and pueblos here in the state of New
Mexico, and from around the nation.
I also want to say thank you to the Indian Pueblo Cultural
Center for hosting this important conversation, this hearing,
and thank all of our witnesses for traveling here today and for
your testimony, especially, our tribal leaders from New Mexico,
including President Russell Begay of the Navajo Nation,
Governor Paul Torres of Isleta Pueblo, and Governor Kurt Riley
of the Pueblo of Acoma.
Earlier this year, when looking through a list of tribal
artifacts up for bid at an art auction house in Paris, the
Pueblo of Acoma discovered that the Acoma shield, a sacred
ceremonial object, had been stolen and was about to be sold to
the highest bidder. The word I've actually heard used by many
of the tribal members in our audience to describe this, they
used the word, ``ransom.''
After Acoma Governor Kurt Riley notified me of this sale, I
wrote letter to Secretary of State John Kerry, urging that the
U.S. State Department take all possible action to help
repatriate the shield and other stolen cultural items to
American Indian tribes.
Thankfully, in this particular case, intense public outcry,
and diplomatic pressure were enough to postpone the illegal
sale of the tribe's cultural patrimony. And the U.S. Department
of Justice has issued a warrant to retrieve the Shield from
France.
This is incredibly welcome news. But the Shield has still
not been recovered from Paris. And in hundreds of other cases,
tribes across the nation have been unable to stop similar theft
and sale of their priceless religious and cultural items in
international markets.
Under Federal law, it's a crime to steal and sell these
types of Native American and cultural items.
Unfortunately, the penalties in the Native American Graves
Protection and Repatriation Act are not as high as other
similar Federal statutes, like the National Stolen Property
Act.
Therefore, prosecutions are too infrequent to deter
criminals from smuggling and selling these objects.
And there is no explicit ban on exporting these items to
foreign countries, where they might be sold at auction.
Just last month, I attended the White House Tribal Nation
Conference, which brought together tribal leaders from the 567
federally recognized tribes.
These conferences have been important opportunities to
bring tribal leaders together and I called on the next
administration to continue this tradition. It was an honor to
attend this year's conference and have the opportunity to
listen to tribal leaders and to discuss issues critical to
Indian Country, including the STOP Act.
The STOP Act is a bill that I introduced to prohibit the
exporting of sacred Native American items, increase penalties
for stealing and illegally trafficking tribal cultural
patrimony.
The STOP Act will also create a tribal working group to
help Federal agencies better understand the scope of the
problem, and how we can work together to solve it.
I'm proud of my work with tribes in New Mexico and across
Indian Country to craft this legislation.
And I'm thankful to Senator Udall for his cosponsorship and
his incredible leadership on the resolution that the Senate
recently passed. I announced the bill's introduction alongside
tribal leaders here at the Indian Pueblo Cultural Center in
Albuquerque and on Capitol Hill in July.
I'm pleased that the STOP Act has been endorsed by the
Navajo Nation, the Jicarilla, Mescalero, and San Carlos Apache
Nations, the Pueblos of Acoma, Santa Ana, Isleta, Zuni, Laguna,
Nambe, Jemez and Ohkay Owingeh, as well as the All Pueblo
Council of Governors, the Eight Northern Indian Pueblos
Council, the National Congress of American Indians, the United
South and Eastern Tribes Sovereignty Protection Fund, and most
recently, the National Parks and Conservation Association.
I'm also proud to welcome growing bipartisan support for
this legislation in the United States Senate. Senators Jeff
Flake, Tom Udall, John McCain, Jon Tester, Lisa Murkowski,
Steve Daines, Brian Schatz, Cory Gardner, and Michael Bennett,
have all signed on as cosponsors of this legislation.
This hearing on the bill is an important step for us to
take to continue to build a momentum towards passing this into
law. And I'm very grateful for the witnesses here from Federal
agencies who will tell us about their work to protect and
repatriate tribal patrimony, and I look forward to hearing from
them about additional tools that would aid them in those
efforts.
While we must improve Federal law to create stronger legal
deterrence, we also need to change the hearts and minds of art
collectors and dealers who may have engaged in this activity.
The STOP Act includes an immunity period for collectors who
may have illegal items in their possession to voluntarily
repatriate those items to the tribes without the threat of
prosecution.
All of us recognize the incredible beauty of Native
American art, especially when you're from a place like New
Mexico, where you can explore and admire the remnants of
ancient wonders in places like Chaco Canyon and the Gila Cliff
Dwellings, and discover the traditional and modern art
masterpieces created by our contemporary Native artists.
But we can also recognize a clear difference between
supporting tribal artists or collecting artifacts ethically and
legally as opposed to dealing or exporting items that tribes
have identified as essential and sacred pieces of their
cultural heritage.
We all need to take all possible action to stop the latter
and to help repatriate stolen culturally significant items to
their rightful owners.
Thank you.
Senator Udall. Senator Heinrich, thank you for that
excellent statement, and we will now hear from our first panel
of witnesses. Ms. Cheryl Andrews-Maltais, Senior Advisor to the
Assistant Secretary of Indian Affairs, at the U.S. Department
of the Interior; Mr. Tracy Toulou, Director of the Office of
Tribal Justice at the U.S. Department of Justice; Mr. Mark
Taplin, Principal Deputy Assistant Secretary, Bureau of
Educational and Cultural Affairs the U.S. Department of State;
Mr. Waldemar Rodriguez, Special Agent in Charge, Homeland
Security Investigations, Immigrations and Customs Enforcement
at the U.S. Department Homeland Security in El Paso, Texas.
And I want to remind witnesses that your full written
testimony will be made a part of the official hearing record.
Please keep your statements to five minutes so that we may
have time for questions.
And I look forward to hearing your testimony, beginning
with Ms. Maltais. Please proceed.
STATEMENT OF CHERYL ANDREWS-MALTAIS, SENIOR
ADVISOR TO THE ASSISTANT SECRETARY--INDIAN AFFAIRS, U.S.
DEPARTMENT OF THE INTERIOR
Ms. Andrews-Maltais. Thank you. And good morning, Senator
Heinrich and Senator Udall, and members of the Committee that
are here.
My name is Cheryl Andrews-Maltais, and I am the Senior
Advisor to the Assistant Secretary for Indian Affairs. I'd like
to thank you for holding this field hearing, for the
opportunity to provide testimony before the Committee on the
theft, illegal possession, sale, transfer, and export of tribal
cultural items.
As we know, the United States Trust responsibility includes
providing for the education, health, and overall well-being of
tribes. We'd like to acknowledge that this field hearing
demonstrates a true commitment to that responsibility and we
sincerely thank you.
By way of background, I'm the former chairwoman of my
tribe, as well as the former tribal historic preservation
officer responsible for our cultural resources and
repatriation.
American Indian cultural traditions and heritage is the
foundation of our identity. It defines tribes as distinct
peoples and is a vital link to the tribal community, spiritual
help, and well-being.
Too many tribes' ancestors' human remains, associated
funerary items, sacred items, sacred items, and items of
cultural patrimony or tribal cultural heritage, is being held
in museums or sold or traded in the open and black markets,
both domestically and abroad.
This is having a devastating effect on tribes, as well as
affecting our future generations. When we say ``cultural
heritage,'' we mean not only the ancestors' funerary items, and
sacred items, and items of cultural patrimony, but also the
relationship of these items to the community, both tangible and
intangible.
Tribal cultural heritage belongs to the tribal community of
its origin as a whole. And by tribal custom, cannot be
alienated from that community by any individual or group
without the expressed free, prior, and informed consent of that
tribe.
No individual person in a group has a right to possess,
transfer, trade, tribal cultural heritage. And to do so is
against tribal customs, and practices, and laws.
Unfortunately, tribal cultural appropriation and a desire
for the collection of items that are uniquely Indian and have
had cultural significance to tribes, has become a very
lucrative industry. These influences have opened the door for
illegal activities regarding the acquisition, transfer, and
sale of these items.
They are being stolen on a regular basis, and are turning
up on the Internet, in auction houses, both domestically and
abroad, as well as in private collections.
This activity must be stopped, and we are committed to
doing that.
The Department is committed to combating the theft and
illegal possession, sale, and transfer, as well as export of
cultural items. And also committed to helping tribes repatriate
their cultural heritage from abroad.
For instance, there are ancestors still being held in
museums in foreign countries, despite repeated requests from
the tribes as well. And also including when the tribes have the
assistance of the United States Government, we're still finding
challenges.
Additionally, since 2013, there have been a series of sales
by Paris auction houses involving tribal cultural heritage,
including sacred items. At the request of the tribes, and in
some cases, the Federal Government has intervened with the
auction houses and the government.
We have seen some progress, but continue to face many
challenges.
We've assisted the Department of State with efforts to
raise awareness of the sensitivities of these items with the
museums, auction houses, and foreign governments, and the
public at large. However, more work is needed to be done.
As noted in my testimony, in December of 2015, Secretary
Jewell met with France's Minister of Justice to seek
cooperation in preventing such sales, and to begin a dialogue
to repatriate these sacred items back to their proper homes.
This past May, she issued a public statement objecting to a
scheduled auction of cultural items, and called upon the French
government to work with the United States government and tribes
to address the problem.
Illustrating the challenges before us, only this last May,
did a tribe succeed in delaying the sale of an item of concern.
However, it's our understanding, another auction is scheduled
for December.
In light of these continued activities, Secretary Jewell
has instructed the Department to coordinate with tribes and
other Federal agencies to review the circumstances by which
sacred items and other important tribal cultural patrimony are
making their way into foreign markets, and to explore ways of
improving Federal support for tribes' repatriation efforts.
To this end, in addition to several listening sessions, the
Department has launched government-to-government consultations
with tribes on international repatriation issues, beginning at
the White House Tribal Nations Conference in Washington D.C.,
and a second session was last week at the National Congress of
American Indians in Phoenix, Arizona.
Additional sessions are planned for October 21st at the
annual convention of Alaska Federation of Natives, in
Fairbanks, Alaska. And October 26th, at the United South &
Eastern Tribes meeting in Cherokee.
I'm pleased to report that other Federal agencies, such as
the Department of State and Justice are involved in this
process.
We're seeking input, ideas, information, and views relating
to Native American tribal cultural heritage, as well as that of
the Native Hawaiians.
Thus far, the tribes have provided some consistent comments
and ideas at our listening sessions and consultation, which
include the creation of a formal multi-agency task force or
working group to address this issue, changing the definition
regarding ownership improvidence in favor of the tribes,
seeking bilateral agreements with key foreign countries,
developing a tool kit for tribes to know how to access U.S.
assistance, developing a guidance publication for customs
officials and foreign governments to help them recognize
potentially sensitive items, as well as very importantly
raising the sensitivity and public awareness about the
difference between tribal cultural heritage and authentic
artworks produced and marketed for sales by artisans, who are
members of federally-recognized tribes.
We realize that this is a very complicated issue requiring
a multi-faceted and interagency approach. All tribes are unique
and have their own cultural beliefs, traditions, and practices
relative to their cultural heritage. We understand there's no
magic bullet or a one size fits all remedy. However, working
together with the tribes and other agencies, and the Committee
collectively, I'm confident that we can find a solution to this
problem.
Thank you very much for the opportunity to offer a
statement, and I'm happy to answer any questions you may have.
[The prepared statement of Ms. Andrews-Maltais follows:]
Prepared Statement of Cheryl Andrews-Maltais, Senior Advisor to the
Assistant Secretary--Indian Affairs, U.S. Department of the Interior
Senator Heinrich and Senator Udall, and members of the Committee,
my name is Cheryl Andrews-Maltais, and I am the Senior Advisor to the
Assistant Secretary for Indian Affairs at the Department of the
Interior (Department). Thank you for holding this field hearing and for
the opportunity to provide testimony before this Committee on the
``Theft, Illegal Possession, Sale, Transfer and Export of Tribal
Cultural Items.''
Tribal cultural heritage is at the heart of tribal identity. When
we say ``cultural heritage'' we mean not only the Ancestors, funerary
items, sacred items, and items of cultural patrimony but also the
relationships of these items to the community, both tangible and
intangible. Native American cultural roots are America's deepest
cultural roots. In the words of the National Historic Preservation Act,
this heritage gives spirit and direction to tribes and to America.
Tribal cultural heritage belongs to the tribal community of its
origin as a whole and must not be alienated from that community by any
individual or group without the expressed prior and informed consent of
that tribe. No individual person or group has a right to possess,
transfer, or trade tribal cultural heritage and to do so is against
tribal customs, practices, and laws.
Unfortunately cultural appropriation and a desire for the
collection of items that are uniquely Indian and have cultural
significance to tribes has become a very lucrative industry. These
influences have opened the door for illegal activities regarding the
acquisition, transport, and sale of tribal cultural heritage. Tribal
cultural heritage is being stolen on a regular basis and is turning up
on the Internet, in auction houses both domestically and in foreign
countries, and in private collections.
The Department is committed to combatting the theft, illegal
possession, sale, and transfer of tribal cultural heritage. We are also
committed to combatting the export of illicitly acquired cultural items
and to helping tribes repatriate their cultural heritage from abroad.
A number of tribes have cultural heritage of concern housed in
foreign museums or being sold in foreign markets. For instance, since
2013 there have been a series of sales by Paris auction houses
involving tribal cultural heritage, including sacred items. At the
request of concerned tribes, the Federal Government has intervened with
the auction houses and the French government in a number of these
cases.
We have assisted the Department of State with efforts to raise
awareness of the sensitivity of these items with auction houses, the
French government, and the public. In December 2015, Secretary of the
Interior Sally Jewell met with France's Minister of Justice to seek
cooperation in preventing such sales and working to repatriate these
sacred items back to their proper homes. And this past May, Secretary
Jewell issued a public statement objecting to a scheduled auction of
cultural items, noting that ``[a]uctioning off tribal sacred objects is
extremely troubling not only because tribal law precludes the sale of
these objects by individuals, but because items held by a dealer or
collector are likely the result of wrongful transfer and may be for
sale illegally.'' She called upon the French government to work with
the United States government and with tribes to address this problem.
Illustrating the challenges before us, only this past May did a tribe
succeed in delaying the sale of an item of concern.
In light of the continuing sales and holdings of tribal cultural
heritage in foreign museums, Secretary Jewell has instructed Department
staff to cooperate with tribes and other federal agencies, including
the Departments of State, Homeland Security, and Justice, to review the
circumstances by which sacred items and other important tribal cultural
patrimony are making their way into foreign markets, and explore ways
of improving federal support for tribes' efforts at repatriation.
Within the Department, many offices and bureaus have responsibilities
relating to this effort, including not only the Office of the Assistant
Secretary for Indian Affairs but also the Office of International
Affairs, Office of the Solicitor, the National Native American Graves
Protection and Repatriation Act (NAGPRA) Program and the cultural
resources and law enforcement staff of the land management agencies.
To this end, in addition to several listening sessions, the
Department has launched government-to-government consultations with
tribes on international repatriation issues. The first session was held
September 27, 2016, at the White House Tribal Nations Conference in
Washington, D.C. and we conducted the second last week at the Annual
Convention of the National Congress of American Indians in Phoenix, AZ.
Additional sessions are planned for October 21, 2016, at the annual
convention of the Alaska Federation of Natives in Fairbanks, AK, and
October 26, 2016, at the meeting of the United South & Eastern Tribes
in Cherokee, NC. I am happy to report that other federal agencies, such
as the Departments of State, and Justice, are involved in this process.
We are seeking input, ideas, information and views relating broadly to
Native American cultural heritage, including that of Native Hawaiians.
Examples of ideas under discussion that have been raised during
these sessions include: seeking bilateral agreements with key foreign
countries; developing a guidance publication for customs officials and
foreign governments to help them recognize potentially sensitive items;
and raising public sensitivity and awareness about the difference
between tribal cultural heritage and authentic artworks produced and
marketed for sale by artists who are members of federally-recognized
tribes.
An essential element to combat this cultural heritage theft is
vigorous enforcement of laws such as NAGPRA and ARPA. As an example, in
2009, federal law enforcement partners (Bureau of Land Management,
Federal Bureau of Investigation, U.S. Marshals) concluded a two-year
undercover operation that rounded up a ring of archeological grave
robbers who looted pristine sites in the Southwest, desecrated ancient
American Indian burials and stole priceless artifacts, selling them to
dealers and collectors who were associated with the network.
Departmental law enforcement worked with the Department of Justice to
prosecute those found guilty of violating cultural heritage laws.
At that time this was the United States' largest investigation of
archeological and cultural artifact thefts. The investigation involved
officers from BLM, FBI, and the U.S. Marshals, who were joined by local
and state law enforcement partners. These agencies executed nearly two
dozen search warrants in four states resulting in the indictment of
approximately 30 individuals from Utah, New Mexico, and Colorado.
During the undercover investigations, just over 250 stolen artifacts
were trafficked, with an estimated value exceeding $335,000, including
decorated pottery, burial and ceremonial masks, a buffalo headdress,
and ancient sandals known to be associated with Native American
burials.
The then-Assistant Secretary for Indian Affairs, Larry Echo Hawk,
said at the time that ``[l]ooters robbing tribal communities of their
cultural patrimony is a major law enforcement issue for federal
agencies enforcing historic preservation laws in Indian Country,'' and
the ``action should give American Indians and Alaska Natives assurance
that the Obama Administration is serious about preserving and
protecting their cultural property.''
The ring was charged with multiple counts of violating ARPA and
NAGPRA as well as theft of government property, depredation of
government property, and theft of Indian tribal property. Nearly all of
the defendants pled guilty to charges, and as a condition of the plea
agreements, relinquished their Native American artifacts collections.
Approximately 40,000 artifacts were recovered. However, no one was
required to serve any jail time.
Through our ongoing outreach, listening sessions and consultations
on international repatriation of tribal cultural items, the Federal
Government is receiving and sharing information about existing training
and models. For example, after receiving information from the Grand
Ronde Tribe about how Oregon State Police are trained in looting and
trafficking to improve apprehension and prosecution, that information
was referred to Department of Justice training officials to incorporate
into their materials. The Department also continues to provide training
on compliance and enforcement of NAGPRA and ARPA internally and with
other federal agencies.
It is also important to improve public awareness of why it is not
only illegal to remove or traffic in cultural items and archeological
resources, but also morally wrong. Examples of efforts to build
awareness include a full-day seminar titled ``Going Home: 25 Years of
Repatriation Under the National Museum of the American Indian (NMAI)
Act,'' at the Smithsonian's National Museum of the American Indian on
November 19, 2014. And more recently, in May 2016, the National Museum
of the American Indian hosted a panel discussion and press conference
in advance of a May 2016 Paris auction that included tribal cultural
items and received great media coverage. The art and museum communities
are, as a general matter, more sensitive to the special nature of
Native American cultural items and the constraints of federal law, but
even within the museum and collections community there is a need to
continually reinforce the strict requirement that no items with unknown
provenance or title should be sold or brought into a collection, for
any reason.
Currently, our best enforcement mechanisms to prevent theft,
illegal possession, sale, transfer and export of cultural patrimony
within the United States are ARPA, the Antiquities Act and NAGPRA.
We are exploring ways for the Department and Federal Government as
a whole to strengthen the implementation of both ARPA and NAGPRA to
protect tribal cultural items to the fullest extent under existing law.
These efforts could include, for example:
Creating more regular training opportunities for federal law
enforcement officers, prosecutors, and customs agents on
NAGPRA, ARPA, and the Antiquities Act, as well as the
application of laws against theft and depredation of federal or
Indian property;
Requiring more robust and frequent training for federal
archeologists on the preparation of damage assessment reports;
Providing additional training for Customs officers on the
recognition of Native American cultural property;
Using tribal monitors on federal lands to provide an
additional level of protection for archeological sites, and the
overall increased capacity for federal agencies to monitor
archeological sites on public lands;
Developing a special panel or federal-tribal task force to
evaluate the issue of international and domestic repatriation
challenges and develop specific regulatory language and
recommendations.
Additionally, the Department would like to work with the Committee
to explore ways to address the limitations in treatment of Native
American cultural heritage. Examples include:
Exploring new ways for repatriating Native American or
Native People's worldwide items of cultural heritage, and
requiring documentation for items identified as potentially
sacred;
Working with the Department of State to explore potential
ways that tribes could be empowered to address international
repatriation issues; and
Providing legal protection from disclosure of sensitive
information that is provided by tribes to support the
investigation and repatriation of culturally sensitive items.
Conclusion
Thank you for providing the Department the opportunity to provide a
statement on ``The Theft, Illegal Possession, Sale, Transfer and Export
of Tribal Cultural Items.'' I am available to answer any questions the
Committee may have.
Senator Udall. Thank you very much, Mr. Maltais, and please
proceed, Mr. Toulou.
STATEMENT OF TRACY TOULOU, DIRECTOR, OFFICE OF TRIBAL JUSTICE,
U.S. DEPARTMENT OF JUSTICE
Mr. Toulou. Good morning, Senator Udall and Senator
Heinrich.
Senator Udall. Good morning.
Senator Heinrich. Good morning.
Mr. Toulou. My name is Tracy Toulou, and I'm the Director
of the Office of Tribal Justice at the Department of Justice.
I'm also a proud Lobo, and I'm happy to be in Albuquerque
today. It's great to be back.
Senator Udall. Welcome back.
Mr. Toulou. Thank you.
Senator Heinrich. Welcome back.
Mr. Toulou. The Department of Justice appreciates the
opportunity to appear before you today to discuss the theft,
illegal possession, sale, transfer, and export of tribal
cultural items, and the Department's effort to combat these
activities and protect Native American cultural resources.
In the audience is my colleague, Damon Martinez, a United
States Attorney for the District of New Mexico. His office is
exemplary in the work on these important issues, as they are in
all issues that occur in Indian Country.
Unfortunately, there's a long history of looting Native
American cultural sites and theft of Native American cultural
resources. Congress has passed various laws in an attempt to
stop the looting and the thefts. But I thank you for holding
this hearing today because there is so much work to be done.
The first significant Federal statute signed to protect
archaeological and Native American culture resources was the
Antiquities Act of 1906.
After decades of looting, desecration and destruction of
Native American sites in the southwest, such as Chaco Canyon,
the Antiquities Act was passed, in part, as an attempt to
protect these sites. However, the ability of the United States
to prosecute offenses under the Antiquities Act was
significantly Impacted in the 1970s, when the Ninth Circuit
questioned portions of the Act.
Because of the Ninth Circuit's decision, additional
legislation was deemed necessary.
In 1979, Congress passed the Archaeological Resources
Protection Act, or ARPA, which strengthened the preservation
purposes of the Antiquity Act in several ways.
More importantly, ARPA provided more robust civil,
criminal, and felony prosecution options. An ARPA violation can
either be a felony or a misdemeanor, and it can be pursued
civilly when appropriate.
However, for ARPA to apply, it must involve an
archeological resource more than a hundred years old. And with
the exception of one of the trafficking provisions that applies
to violations of state and local law, the theft or looting must
occur on public land for ARPA jurisdiction to attach. Such
lands, include Indian lands held in trust by the United States
and Indian lands subject to restriction against alienation
imposed by the United States.
Although, ARPA increased protection to archeological and
historical sites, it left a hole in the protection of Native
American human remains and associated funerary objects that
were less than a hundred years old or were not found on Federal
land.
To address the gap with regards to human remains, Congress
passed the Native American Graves Protection and Repatriation
Act of 1990, or NAGPRA.
Most of NAGPRA establishes procedures for the return of
human remains, funerary objects, sacred objects, and items of
cultural patrimony from museum collections to their Native
American descendants.
However, Section 4 of NAGPRA amended the United States
Criminal Code and created sanctions for illegal trafficking in
Native American human remains and cultural items. The penalties
for trafficking are similar to those for violating ARPA. And
NAGPRA includes penalties for a trafficker who knowingly sells,
purchases, uses for profits, or transports for sale or profit,
any Native American cultural items obtained in violation of the
Act.
Sentencing guidelines provides an enhancement for cultural
heritage resource crimes.
Some examples of successful prosecutions that the United
States has brought pursuant to these statutes are for damaging
and removing archeological resources from a historic Yakama
Nation site, for the removal of petroglyphs from a sacred
worship site of the Southern Paiute Tribe, located on Federal
lands.
And I would also like to highlight the work of the U.S.
Attorney's Office here in New Mexico for obtaining a guilty
plea for a felony violation of ARPA against an individual who
excavated and removed several pieces of Mimbres pottery from
BLM lands.
Despite these successes, there's still some challenges that
the Department faces when prosecuting these cases.
One of the major barriers we face is the vast amount of
acreage that needs monitoring on a regular basis. And the law
enforcement resources are spread so thin in many of the hardest
hit areas.
In addition, because most of these laws apply only to
objects taken from Federal lands or tribal lands, there are
often challenges proving where the theft occurred.
The Acts also require the United States to prove the
defendant was aware of the facts and circumstances that
constitute the crime.
In some circuits, it means that proving the defendant knew
the item was an archeological resource and illegally excavated.
This is a significant challenge in many cases where the
cultural items may have passed through the possession of
several different people, and there's difficulty in proving
that the current possessor knew of the illegal conduct.
Finally, all three Acts are prospective laws which
generally apply only to actions after their passage.
I want to close by quoting from former Senator Domenici's
statement at the 1979 Senate ARPA hearing.
``In recent years, the rise in prices of prehistoric Indian
artifacts and other archeological resources have created a
large international demand. Professional looters have been
active in the southwest and elsewhere pirating these on public
lands, and in some cases with bulldozers. Virtually tens of
thousands of dollars worth of artifacts have been taken from
public lands in New Mexico. Mimbres pots are being illegally
dug out on consignment and sold on the international art
market.''
Unfortunately, the prices have only risen since the 1978
hearing.
But more importantly, beyond any dollar value is the
incredibly important religious, spiritual, and cultural
importance of these items.
I applaud the efforts of Congress and the leadership of the
New Mexico delegation on these important issues over the
decades. But as the recent international auctions demonstrate,
there is significant challenges yet to come, and we hope to
work with Congress as you address those challenges.
Thank you.
[The prepared statement of Mr. Toulou follows:]
Prepared Statement of Tracy Toulou, Director, Office of Tribal Justice,
U.S. Department of Justice
Senators Udall and Heinrich, my name is Tracy Toulou and I am the
Director of the Office of Tribal Justice at the United States
Department of Justice. The Department of Justice appreciates the
opportunity to appear before you today to discuss the ``Theft, Illegal
Possession, Sale, Transfer, and Export of Tribal Cultural Items'' and
the Department's efforts to combat these activities and protect Native
American cultural resources. In the audience is my colleague Damon
Martinez, the United States Attorney for the District of New Mexico,
whose office is exemplary in their work on these important issues and
on all Indian country issues.
Unfortunately, there is a long history of looting Native American
cultural sites and theft of Native American cultural resources.
Congress has passed various laws in an attempt to stop the looting and
the thefts, but I thank you for holding this hearing because there is
still work to be done.
The first significant Federal statute designed to protect
archaeological and Native American cultural resources is the
Antiquities Act of 1906. After decades of looting, desecration, and
destruction of Native American sites in the Southwest, such as Chaco
Canyon, the Antiquities Act was passed in part as an attempt to protect
these sites. However, the ability of the United States to prosecute
offenses under the Antiquities Act was significantly curtailed by the
Ninth Circuit in the 1970s. An individual who stole several items,
including twenty-three masks, from a medicine man's cave on the San
Carlos Apache Indian Reservation was prosecuted under the criminal
provisions of the Antiquities Act. The masks had been made a few years
earlier and left in the cave as part of an Apache religious ceremony,
but were considered to be objects of antiquity because they were part
of the long-standing religious and social traditions of the Tribe. The
Act did not define the term, however, and the Ninth Circuit found it to
be unconstitutionally vague because the defendant had no notice that a
relatively new object could be considered an antiquity. Because of the
Ninth Circuit's decision, additional legislation was deemed necessary.
In 1979 Congress passed the Archaeological Resources Protection
Act, or ARPA, which strengthened the preservation purposes of the
Antiquities Act in several ways. Most importantly, ARPA provided more
robust civil and criminal felony prosecution options. An ARPA violation
can be either a felony or a misdemeanor and it can be pursued civilly
when deemed appropriate. However, for ARPA to apply, it must involve an
archaeological resource more than 100 years old, and with the exception
of one of the trafficking provisions that applies to violations of
state and local law, the theft or looting must occur on public lands
for ARPA jurisdiction to attach. Such lands include Indian lands held
in trust by the United States and Indian lands subject to the
restriction against alienation imposed by the United States.
Although ARPA increased protection to archeological and historical
sites, it left a hole in the protection of Native American human
remains and associated funerary objects that were less than 100 years
old and not found on federal land. To address the gap with regards to
human remains, Congress passed the Native American Graves Protection
and Repatriation Act of 1990, or NAGPRA. Most of NAGPRA establishes
procedures for the return of human remains, funerary objects, sacred
objects, and items of cultural patrimony from museum collections to
their representative Native American descendants. However, section 4 of
NAGPRA amended the United States Criminal Code and created sanctions
for the illegal trafficking in Native American human remains and
cultural items. The penalties for trafficking are similar to those for
violating ARPA, and NAGPRA includes penalties for a trafficker who
``knowingly sells, purchases, uses for profit, or transports for sale
or profit any Native American cultural items obtained in violation of''
the Act. Sentencing guidelines provide an enhancement for cultural
heritage resource crimes.
Some examples of successful prosecutions that the United States has
brought pursuant to these statutes are for damaging and removing
archeological resources from an historic Yakama Nation site, for the
selling and transporting for sale of an Ancestral Puebloan cloud blower
pipe, which was removed from public lands, and for the removal of a
petroglyph from a sacred worship site of the Southern Paiute located on
federal land. And I would like to highlight the work of the U.S.
Attorney's Office here in New Mexico for obtaining a guilty plea for
felony violations of ARPA against an individual who excavated and
removed several pieces of Mimbres pottery from BLM lands.
Despite these successes, there are still some challenges that the
Department faces when prosecuting these cases. One of the major
barriers that we face is the amount of acreage that needs monitoring on
a regular basis is so vast and law enforcement resources spread so thin
that many of the hardest-hit areas remain vulnerable. In addition,
because most of these laws apply only to objects taken from federal or
tribal lands, there are often challenges proving where the theft
occurred. The Acts also require the United States to prove that the
defendant was aware of the facts and circumstances that constitute the
crime. In some Circuits, this may mean proving that the defendant knew
that the item was an archaeological resource and illegally excavated.
This is a significant challenge in many cases where the cultural item
may have been passed into the possession of several different people
and there is difficulty in proving that the current possessor knew of
the illegal conduct. Finally, all three of the Acts are prospective
laws which generally apply only to actions after their passage. The
result is that the United States cannot prosecute the theft of the
masks stolen from the San Carlos Apache Reservation that I mentioned at
the beginning of my statement.
I want to close by quoting from former Senator Domenici's statement
at the 1979 Senate ARPA hearing:
``In recent years, the rise in prices of prehistoric Indian
artifacts and other archeological resources has created a large
international demand. Professional looters have been active in
the southwest and elsewhere pirating these sites on public
lands, in some cases with bulldozers. Virtually tens of
thousands of dollars worth of artifacts have been taken from
public lands in New Mexico. Mimbres pots are being illegally
dug out on consignment and sold in the international art
market.''
Unfortunately, the prices have only risen since that 1979 hearing.
But beyond any dollar value is the religious and cultural importance of
these items. I applaud the efforts of Congress and the leadership of
the New Mexico delegation on these important issues over the decades,
but as the recent international auctions demonstrate, there are still
significant challenges and we hope to work with Congress in addressing
those challenges. Thank you.
Senator Udall. Thank you, Mr. Toulou, very much, and thank
you for reminding me that the U.S. Attorney is here, Damon
Martinez. I believe he's sitting right over here. I think you
have reminded us, and his presence here, of the powerful
message that is sent with the prosecution because I've served
in the U.S. Attorney's Office for three years, late 1970s,
early 1980s, and prosecutions were brought under ARPA, and I
think they send a very strong message.
Please proceed, Mr. Taplin.
STATEMENT OF MARK TAPLIN, PRINCIPAL DEPUTY
ASSISTANT SECRETARY, BUREAU OF EDUCATIONAL AND CULTURAL AFFAIRS
Mr. Taplin. Good morning, Senator Udall, Senator Heinrich,
members of the Committee. Thank you for the opportunity to
appear today to discuss the State Department's diplomatic role
in advocating for the recovery and repatriation of Native
American cultural items, including items of special cultural
and religious significance to U.S. tribes that are offered for
commercial sale overseas.
I am delighted to be part of a panel featuring
representatives from our principal Federal Government partners
in defending the interests of Native American tribes overseas.
And I'm honored to meet and hear from tribal leaders and other
Native American representatives who are here today.
The challenge of recovering important tribal cultural items
and repatriating them, whenever possible, to tribal custody, is
a subject of importance to all of us who care about preserving
and protecting our own country's cultural heritage in all of
its richness and diversity.
Traditionally, the State Department's emphasis in cultural
heritage matters has been centered on helping other countries
better preserve and protect their own cultural patrimony. The
United States is an acknowledged leader internationally in this
area.
And under the 1983 Conventional and Cultural Property
Implementation Act, the CCPIA, the United States has entered
into some 15 bilateral agreements that create import
restrictions on categories of cultural property from other
countries, and whose cultural heritage is under threat from
pillage and trafficking.
And we negotiate and implement these cultural property
agreements in close partnership with the Departments of
Treasury and Homeland Security, which have authority over,
respectively, the imposition and enforcement of import
restrictions in the United States.
We have cultural property agreements today with countries
ranging from Italy, Greece, and China, to Mali, Guatemala and
Cambodia.
A common element of all our partnerships is our steadfast
efforts to block the illegal importation into the United States
of their irreplaceable cultural property. But what of the loss
of our own cultural Heritage? And especially the endangered
heritage of U.S. tribes. What can we at the State Department do
to counter the trade and commercialization of U.S. tribal items
in oversees markets?
This issue has been put into sharp relief since 2013 by a
series of commercial auctions of Native American sacred items
in Paris such as the Pueblo of Acoma Shield, which attracted
considerable diplomatic and media attention earlier this year
and resulted in the Shield being pulled from the auction.
The sales have put on the auction block hundreds of items
representing the tribal patrimony of numerous U.S. tribes.
These auctions have rightfully raised an outcry
internationally, and even within France, but have continued
periodically despite our best diplomatic efforts.
The Department of State, in close coordination with the
affected tribes, their legal representatives, and the
Department of Interior, has encouraged consultation between
private auction houses in Paris and tribal representatives in
advance of these auctions.
But, unfortunately, in many cases, the auction houses have
not engaged in meaningful prior consultation about the
provenance of culturally significant items prior to offering
them for sale.
In March of this year, the State Department proposed to the
French government the formation of a bilateral working group to
identify legal and policy issues, in both countries, that could
be addressed in order to restrict and finally bring to an end
this ongoing commercialization of U.S. tribal items.
We've raised the issue with French interlocutors at various
levels, and I'm pleased to announce--and this is not reflected
in the written testimony--that we heard yesterday from our
Embassy in Paris, that France has agreed to a first working
group meeting at the end of this month.
Meanwhile, we intend to remain vocal about our concerns, as
we have been on other occasions on behalf of U.S. tribal
interests, and to encourage others in the United States and
internationally to speak out.
In particular, we believe that the voices of Native
American tribal leaders, and their representatives, are
especially compelling, including with foreign audiences, which
admire Native American culture and support repatriating these
items to the tribes themselves.
We appreciate the interest and support of Congress in
working with the Department of State to highlight our shared
concerns about the importance of protecting cultural heritage.
Raising international awareness of U.S. tribal concerns about
cultural heritage, and repatriation issues at every opportunity
and through active public diplomacy, remains a key part of our
strategy.
I want to assure you the State Department will continue to
play a strong role on behalf of U.S. tribes in advocating for
the recovery and repatriation of tribal cultural items
illegally trafficked overseas. And, likewise, we remain
committed to looking for ways to strengthen our links to U.S.
tribes and Native American institutions, directly and as
participants in ongoing consultative bodies chaired by other
U.S. Federal agencies.
So, again, thank you for this opportunity. I look forward
to answering your questions.
[The prepared statement of Mr. Taplin follows:]
Prepared Statement of Mark Taplin, Principal Deputy Assistant
Secretary, Bureau of Educational and Cultural Affairs
Senator Udall, Senator Heinrich and members of the Committee--thank
you for the opportunity to appear today to discuss the State
Department's diplomatic role in advocating for the recovery and
repatriation of Native American cultural items, including items of
special cultural and religious significance to U.S. tribes that are
offered for commercial sale overseas.
I am delighted to be part of a panel featuring representatives from
our principal Federal Government partners in defending the interests of
Native American tribes overseas. I am honored to meet and hear from
tribal leaders and other Native American representatives who are here
today. The challenge of recovering important tribal cultural items and
repatriating them, whenever possible, to tribal custody is a subject of
importance to all of us who care about preserving and protecting our
own country's cultural heritage, in all of its richness and diversity.
Traditionally, the State Department's emphasis in cultural heritage
matters has been centered on helping other countries better preserve
and protect their own cultural patrimony. As a State Party to the 1970
UNESCO Convention on the Means of Prohibiting and Preventing the
Illicit Import, Export and Transfer of Ownership of Cultural Property
(or ``the 1970 UNESCO Convention''), the United States is an
acknowledged leader internationally in this area. Under the 1983
implementing legislation--the Convention on Cultural Property
Implementation Act (the CCPIA)--the United States has entered into some
15 bilateral agreements that create import restrictions on categories
of cultural property from other countries and whose cultural heritage
is under threat from pillage and trafficking.
We negotiate and implement these cultural property agreements in
partnership with the Departments of Treasury and Homeland Security,
which have authority over, respectively, the imposition and enforcement
of import restrictions in the United States. We have cultural property
agreements today with countries ranging from Italy, Greece and China to
Mali, Guatemala and Cambodia. A common element of all our partnerships
is our steadfast efforts to block the illegal importation into the
United States of their irreplaceable cultural property.
Under the CCPIA, including through the work of the Presidentially
appointed Cultural Property Advisory Committee, we strive to balance
the interests and equities of a wide range of stakeholders, including
archaeologists, museums and the private art market. We believe that
fostering this type of balanced discussion of stakeholder interests
should remain a key feature of the U.S. approach to cultural property
protection, whether overseas or in the United States itself.
But what of the loss of our own cultural heritage, and especially
the endangered heritage of U.S. tribes? What can we at the State
Department do to counter the trade and commercialization of U.S. tribal
items in overseas markets?
This issue has been put into sharp relief since 2013 by a series of
commercial auctions of Native American sacred items in Paris, such as
the Pueblo of Acoma shield, which attracted considerable diplomatic and
media attention earlier this year, and resulted in the shield being
pulled from the auction. The sales have put on the auction block
hundreds of items representing the cultural patrimony of numerous U.S.
tribes. These auctions have rightfully raised an outcry
internationally--and even within France--but have continued
periodically despite our best diplomatic efforts.
The Department of State, in close coordination with the affected
tribes, their legal representatives, and the Department of Interior,
has encouraged consultation between private auction houses in Paris and
tribal representatives in advance of these auctions. Unfortunately, in
many cases the auction houses have not engaged in meaningful prior
consultation about the provenance of culturally significant items prior
to offering them for sale. Legal challenges to the sale of Native
American sacred items are difficult matters, involving an attempt to
recreate transfers that may have taken place decades ago. To date we do
not have a successful record.
In March of this year, the State Department proposed to the French
government the formation of a bilateral working group to identify legal
and policy issues, in both countries, that could be addressed in order
to restrict and finally bring to an end this ongoing commercialization
of U.S. tribal items. We continue to raise the issue with French
interlocutors at various levels and are hopeful for a reply soon.
While we are waiting for a reply, we intend to remain vocal about
our concerns--as we have been on other occasions on behalf of U.S.
tribal interests--and to encourage others in the United States and
internationally to speak out. In particular, we believe that the voices
of Native American tribal leaders and their representatives are
especially compelling, including with foreign audiences which admire
Native American culture and support repatriating these items to the
tribes themselves. Similarly, we appreciate the interest and support of
Congress in working with the Department of State to highlight our
shared concerns about the importance of protecting cultural heritage.
Raising international awareness of U.S. tribal concerns about cultural
heritage and repatriation issues at every opportunity and through
active public diplomacy remains a key part of our strategy.
Thank you again for inviting me to testify today. I want to assure
you that the State Department will continue to play a strong role on
behalf of U.S. tribes in advocating for the recovery and repatriation
of tribal cultural items illegally trafficked overseas. Likewise, we
remain committed to looking for ways to strengthen our links to U.S.
tribes and Native American institutions, directly and as participants
in ongoing consultative bodies chaired by other U.S. federal agencies.
I look forward to answering your questions.
Senator Udall. Thank you very much, Mr. Taplin. Please
proceed, Mr. Rodriguez.
STATEMENT OF WALDEMAR RODRIGUEZ, SPECIAL AGENT IN CHARGE,
HOMELAND SECURITY INVESTIGATIONS, EL PASO U.S. IMMIGRATIONS AND
CUSTOMS ENFORCEMENT, U.S.
DEPARTMENT OF HOMELAND SECURITY
Mr. Rodriguez. Thank you, Chairman Udall, Senator Heinrich,
and other members of the Committee. Thank you for the
opportunity to appear before you today to discuss the efforts
of U.S. immigration and customs enforcement to protect cultural
and religious items, property, art and antiquities, and
mitigate their illicit trafficking both into and out of the
United States.
As the Department of Homeland Security's principal
investigative agency, ICE's position to leverage has brought
statutory authority to investigate a wide range of domestic and
international activities arising from illegal movement of
people, goods, and money with a nexus to the borders of the
United States.
Federal customs law regarding smuggling and trafficking, as
well as customs border search authority, provide ICE Homeland
Security Investigations, with the capability and responsibility
to take a leading role in investigating crimes involving the
import and distribution of stolen or looted cultural property,
and prosecuting those individuals and organizations responsible
for these crimes.
ICE is the lead investigative agency for illegal import and
export of cultural property. And, for example, if--as an
example, if customs officers were to discover that tribal
cultural items were transported into or out of the United
States in violation of existing import or export law, I would
have authority and jurisdiction to conduct that investigation.
However, ICE would not typically be the lead investigatory
agency for the theft and illegal transport of tribal cultural
items within the United States.
These investigations can result in complex cases involving
multiple domestic and international ICE offices, that can last
for years.
For example, one of ICE's largest ongoing cultural property
investigations, hidden idols, began in 2007 and has resulted in
the seizure of more than $150 million in artifacts.
In fiscal year 2015, ICE worked 239 domestic and 102
international cultural property investigations.
To conduct these complex investigations, ICE may
collaborate with tribal, Federal, state and local law
enforcement, private institutions, and foreign governments. ICE
also has the ability to work directly with cultural resources
practitioners to support this collaborative institution.
ICE established the Cultural Property, Art and Antiquities
Program, the CPAA program, to oversee efforts related to the
protection of cultural property. The program conducts training
on the preservation, protection and investigation of cultural
heritage and property, coordinates and supports investigations
involving the illicit trafficking of cultural properties from
countries around the world, and facilitate the repatriation of
illicit cultural items seized as a result of HSI Investigations
to the artifacts' lawful owners.
These investigations often result in the forfeiture of
cultural property, which must be repatriated to its lawful
owners through a legal forfeiture process.
The CPAA program oversees the cultural repatriation, which
can be a small exchange after the legal process is completed,
or it can include a grand ceremony that commemorates the item's
return at the country's Embassy or even within the country
itself.
Although most of ICE's cultural repatriations has stemmed
from investigations related to import or export, the
repatriation of seized and forfeited tribal cultural and
religious items could occur within tribal customs and
traditions. Whatever the venue, returning a piece of a
country's history and heritage to its people is a celebration
and an event in which ICE is particularly proud to participate.
Since 2007, ICE has repatriated more than 7,750 items to
more than 30 countries.
In closing, ICE remains committed to working with this
Committee and tribal governments to continue our strong
relationship going forward to help prevent and combat the
illicit trafficking of tribal cultural and religious items.
Thank you again for your continued--for the opportunity to
testify here today, and for your continued support of ICE and
its law enforcement mission. I would be pleased to answer any
questions.
[The prepared statement of Mr. Rodriguez follows:]
Prepared Statement of Waldemar Rodriguez, Special Agent In Charge,
Homeland Security Investigations, El Paso, U.S. Immigrations and
Customs Enforcement, U.S. Department of Homeland Security
Introduction
Chairman Barrasso, Vice Chairman Tester, Senator Udall, Senator
Heinrich, and distinguished Members of the Committee:
Thank you for the opportunity to appear before you today to discuss
the efforts of U.S. Immigration and Customs Enforcement (ICE) to
protect cultural and religious items, property, art and antiquities,
and mitigate their illicit trafficking both into and out of the United
States.
As the largest investigative agency within the U.S. Department of
Homeland Security (DHS), ICE investigates a wide range of domestic and
international activities arising from the illegal movement of people,
goods, and money with a nexus to the borders of the United States.
Federal customs law regarding smuggling and trafficking, as well as
customs border search authority provide ICE Homeland Security
Investigations (HSI) with the capability and responsibility to take a
leading role in investigating crimes involving the import and
distribution of stolen or looted cultural property, and prosecuting
those individuals and organizations responsible for these crimes.
ICE is the lead federal investigative agency with respect to export
enforcement due to its jurisdiction over the investigation of crimes
related to the U.S. border. However, investigations into the export of
Tribal cultural items present challenges due to limitations on existing
authorities and enforcement resources. To conduct its complex
investigations, ICE may collaborate with Tribal, Federal, State and
local law enforcement, private institutions, and foreign governments.
ICE has the ability to work directly with cultural resources
practitioners to support these collaborative investigations.
ICE's Cultural Property, Art and Antiquities (CPAA) Program
ICE has established the Cultural Property, Art and Antiquities
(CPAA) program to oversee efforts related to the protection of cultural
property. The mission of the CPAA program is three-fold: conduct
training on the preservation, protection, and investigation of cultural
heritage and property; coordinate and support investigations involving
the illicit trafficking of cultural property from countries around the
world; and facilitate the repatriation of illicit cultural items seized
as a result of HSI investigations to the artifacts' lawful owners.
Education and Training
With funding provided by the Cultural Heritage Center (CHC) within
the U.S. Department of State (DOS) and support from the Smithsonian
Institution, ICE continues to train law enforcement officers on the
handling, investigation, and seizure of items believed to be another
nation's cultural property.
Since 2007, approximately 400 special agents, U.S. Customs and
Border Protection (CBP) officers, prosecutors, and representatives of
foreign law enforcement have been trained by experts in the fields of
cultural property law, targeting, intelligence, archeology, and museum
conservation. In recent years, part of the training was held at the
National Museum of the American Indian, where participants received
guided tours of exhibits by experts. Our goal is to train as many law
enforcement officers as possible to broaden the base of expertise in
cultural property investigations. Today, ICE is working more closely
than ever with CBP to ensure the efforts of our agents and officers are
fully integrated throughout the lifecycle of a case.
In Fiscal Year (FY) 2016, the CPAA program has also been
represented in multiple conferences and workshops and the program is
working with several different federal government agencies to develop
more training and capacity-building workshops for FY 2017.
Education is not limited to law enforcement personnel directly
involved in investigations and prosecutions. In less formal settings,
ICE continues to educate potential brokers and purchasers of cultural
property on the importance of provenance (history of ownership) and
encourages individuals to report any encounters with individuals
seeking to sell merchandise to the HSI Tip Line.
Investigations
The CPAA program plays a supporting role in cultural property
investigations by identifying subject matter experts to authenticate
items that may have indigenous cultural and religious significance,
coordinating leads with other offices, and acting as a liaison to
INTERPOL and law enforcement agencies. The program supports ICE's
approximately 7,000 special agents in more than 200 domestic offices
throughout the United States and 63 international attache offices.
While any ICE special agent may work a cultural property case at some
time in his or her career, HSI New York has a team of special agents
that works exclusively on cultural property cases. HSI Los Angeles has
also recently established its own specialized team whose focus will
include cultural property investigations.
Investigations into indigenous cultural property trafficking could
result from a variety of leads, including: a direct request from Tribal
leadership; CBP as a result of border searches, interdictions; foreign
country notification of a sale at an auction house; the CPAA program;
ICE Attaches; as well as lines of inquiry generated by a special agent.
ICE enforces the cultural artifact import restrictions of bilateral
agreements the United States (through DOS) has with 15 countries
(Belize, Bolivia, Bulgaria, Cambodia, China, Colombia, Cyprus, El
Salvador, Greece, Guatemala, Honduras, Italy, Mali, Nicaragua and
Peru), as well as import restrictions for Iraq and Syria. These
bilateral agreements help protect cultural property by imposing U.S.
import restrictions on certain categories of archeological and/or
ethnological material. Even with import restrictions in place, a single
cultural property investigation can result in complex cases involving
multiple domestic and international ICE offices, as well as other law
enforcement agencies, and can last for years. For example, one of ICE's
largest, ongoing cultural property investigations, Hidden Idols, began
in 2007 and has resulted in the seizure of more than $150 million in
artifacts. In FY 2015, ICE worked 239 domestic and 102 international
cultural property investigations.
Investigating Cases with a Nexus to Tribal Cultural Items
ICE enforces an extremely broad set of federal laws and regulations
with jurisdiction over the investigation of crimes related to the U.S.
border. While ICE is the lead investigative agency for the illegal
import or export of cultural property, ICE would not typically be the
lead investigatory agency for the theft and illegal transport of Tribal
cultural items within the United States. For example, if customs
officers were to discover that Tribal cultural items were transported
into or out of the United States in violation of existing import or
export law, ICE would have authority and jurisdiction to conduct an
investigation.
Buyers and sellers of illicitly obtained antiquities, cultural, and
religious items often do not limit themselves to one type of artifact.
As a result, ICE has worked cases involving smuggled antiquities from
foreign sources only to find Tribal cultural items are also part of a
criminal's cache of artifacts. For example, as part of an ongoing
investigation of the illicit sale of pre-Columbian artifacts, ICE
discovered that Tribal cultural items were also being offered for
purchase by the same seller.
In another case, an individual in the Southwest collected both
Tribal and Egyptian cultural items, resulting in a case requiring
involvement by ICE, the Department of Justice, and the Department of
the Interior. A further example of collaboration with other law
enforcement agencies was an investigation involving the Bureau of Land
Management, the U.S. Fish and Wildlife Service, and the U.S. Forest
Service. In this case, ICE worked with the other agencies to search a
residence in Arizona and seize Tribal cultural items as well as
controlled substances and weapons. ICE's authorities related to the
protection of Tribal cultural items also extend to intellectual
property rights, such as the selling of imported goods being
fraudulently marketed as Native American jewelry.
Cultural Repatriation
Cultural property investigations often result in the seizure of
cultural property, which must be repatriated to its lawful owners
through a legal forfeiture process. The CPAA program oversees these
cultural repatriations, which can be a small exchange after the legal
process is completed or it can include a grand ceremony that
commemorates the items' return at the country's Embassy in Washington,
D.C. or even within the country itself. Repatriation of Tribal cultural
and religious items could occur on Tribal lands and within the Tribal
customs and traditions as required by the Tribe itself. Whatever the
venue, returning a piece of a country's history and heritage to its
people is a celebration, and an event in which ICE is particularly
proud to participate.
ICE has returned a wide variety of items including paintings,
pottery, sculptures, fossils, and sarcophagi. In FY 2016 alone, we
repatriated a first edition of Charles Darwin's book, Origin of the
Species, to Canada; terra cotta figures, jade implements, and a 115
million year-old microraptor fossil to China; a dinosaur skull to
Mongolia; imperial decrees to Russia; and several million dollars in
statuary and sculptures to the Prime Minister of India during his
official visit to the United States. Since 2007, we have returned more
than 7,750 items to more than 30 countries.
Conclusion
Thank you again for the opportunity to testify here in Albuquerque
and for your continued support of ICE and its law enforcement mission.
ICE remains committed to working with this committee and Tribal
governments to continue our strong relationship going forward to help
prevent and combat the illicit trafficking of Tribal cultural and
religious items.
I would be pleased to answer any questions.
Senator Udall. Okay. Mr. Rodriguez, thank you so much for
your testimony. I thank all of the witnesses for your excellent
testimony today. We'll now have a period of questioning by
myself and Senator Heinrich.
Mr. Taplin, you talked about the French--sitting down with
the French. That they--this is something new, I believe, that
they've agreed to. Could you tell us the significance of that,
and how that's going to further the efforts that we called this
hearing about.
Mr. Taplin. Yes, if it please you, Senator, this is
something we heard within the last couple of days from our
Embassy in Paris. We welcome the willingness on the part of the
French government to sit down with us as we have proposed some
time ago on a bilateral basis, as part of a joint working
group, and so we're anticipating the first session will take
place here at the end of the month.
And our composition on both sides of the table will be
interagency composition with representatives from the agencies
that are here, and we are looking forward to getting into that
process and exchanging views and understanding better what we
can potentially accomplish. But we do think it's an encouraging
step forward, and gives us stronger basis to work with our
French partners.
Senator Udall. So this is really a formal first step of
sitting down, and we had requested this a long time ago, but
the French diplomatic folks had not agreed to it, so we should
view this as something encouraging; is that correct?
Mr. Taplin. I think that's right. I want to be careful
about setting expectations here at the beginning of this
process, but I think it's certainly a positive step forward.
Senator Udall. Well, we really appreciate your efforts and,
as you know, the Acoma Shield is one of the many instances
where the deeply important cultural items have been sold
internationally. Can you describe the efforts, in addition to
this sit-down that we've been talking about to ensure the
stopping of trafficking of Native American cultural items, and
how it remains a priority for the U.S. ambassador to the United
Nations.
Additionally, is there a process where we can ensure the
tribes have the input in the discussions. As you know, the
Federal Government has the trust responsibility, and it's very
important that the tribes are involved in this too.
Mr. Taplin. Yes. Let me make a couple of comments, Senator.
The first comment would be that we are working very closely
with interagency colleagues and from the agencies that are
represented on this panel, where there's probably more
practical experience in working with the tribes, and factoring
in the input of the tribes into the process of how we undertake
actions.
So we have become more active and stepped up our
engagement, I think, in the interagency process. And we think
the consultative aspect of our work going forward is vitally
important.
In terms of other activity of the locus of our activities
have, in fact, been with the French government, because of the
series of auctions. And as I think I stated in my testimony, we
tried to address it at various levels, the public diplomacy, if
you will, the public engagement in raising public awareness
aspect, I think will continue to be vitally important, and we
are interested in trying to delve into in greater depth what we
can accomplish through this work effort.
At the United Nations, we approach these issues in the
context of some of the wider engagement and indigenous people's
rights in protecting those interests.
And I should also note that another important aspect of our
effort is at UNESCO. Our mission to UNESCO is also vitally
interested in these issues, and I remember myself in last
assignment overseas coauthoring an opinion piece with our
former ambassador to UNESCO, David Killion, on the specific
issue of options and commercialization of Native American
tribal objects. Thank you.
Senator Udall. Thank you very much. In this sit-down,
you're going to--first formal sit-down with the French, we hope
that you will find an opportunity to involve tribes, and you
have some representation and consultation there.
Mr. Rodriguez, as you know, the theft and trafficking of
cultural items is not a new issue, and you talked about that in
your testimony. And it's something that I know your agency
takes very seriously.
But one thing that seems to be new is the way in which
these cultural items are being sold, and the way they're being
exported through on time--online retailers such as eBay and
other websites. What steps is your agency taking to keep tabs
on the illegal online activity when it comes to tribal cultural
items?
Mr. Rodriguez. We have a variety of methods to begin
investigations. Primarily we receive information from our field
offices, from the public, from practitioners, in this area from
concerned citizens that could involve Native Americans. And we
already have a number of capabilities to investigate
trafficking online. We've used it very successfully in an area
that it's somewhat related to this, which is intellectual
property. We've used it in many other areas of our mission.
And when--some of our investigations, and I would say that
continues to increase, have initiated with information related
to somebody selling artifacts online, and we utilized a number
of investigative methods to pursue those investigations.
Some of those methods are best not discussed in public, but
we're very successful in utilizing them to pursue these leads.
A lot of work in this space has to involve the authentication
of items and the provenance.
So we're in partnership with scholars, private citizens,
and many of our partners that are here represented in this
hearing in helping us determine that.
So I feel pretty confident that the use of online sales
won't impede our ability to conduct these investigations.
Senator Udall. Thank you very much. And as you can gather
by the tenor of this hearing, we want you to be aggressive and
to go after the wrongdoers at every opportunity.
So, thank you.
Mr. Toulou, the Department of Justice has a variety of
existing legal authority and responsibility related to Native
American cultural resources, as you are aware of from the
hearing, the Antiquities Act, The Archeological Resources
Protection Act, and NAGPRA, where do you see holes within
existing authority that prevents you from effectivity curbing
the theft, illegal possession, sale, transfer, and export of
tribal cultural items?
In other words, how can we help you deal with this
significant problem, and do you see the need for--what you see
the need for, to be done there.
Mr. Toulou. Thank you for the question, Senator.
As I mentioned in my testimony, some of the issues we see
is, you know, the vast area that needs to be patrolled, and the
fact that sometimes these items can be removed without anybody
knowing what happened.
So, I mean, there's some definite needs in that area.
I think, you know, from a prosecutor's perspective, there
are some issues regarding the current legislation that we're
currently working through with my partners at the table. And
I'll be happy to talk to your staff about those, but at--you
know, some of them again, I alluded to in the testimony, the
level of mens rea that's necessary on some of these--and some
of the act is frankly antiquated, and doesn't apply to what we
see as these cases develop. And we're working through an
equitable way to deal with those issues, not--to have a
chilling effect on the art market, but also to make sure that
these very, very important items are maintained in the custody
of the individuals who should have them.
So, we're in the process of working through that with our
partners. I'm happy to work with your staff, and Senator
Heinrich's staff as we go forward on those issues.
Senator Udall. Thank you very much. Ms. Maltais, I want to
discuss multiagency investigations. It's my understanding that
for 10 years, between 1996 and 2006, the Bureau of Indian
Affairs had a single criminal investigator tasked with
addressing looting on tribal lands.
This investigator was from the Acoma Pueblo, and worked
with other tribes and agencies in the southwest, and was very
successful in that time period that he worked on that.
It's also my understanding that since that investigator's
retirement in 2006, that position has not been filled.
What are the reasons a position specifically assigned to
investigate issues covered under ARPA and NAGPRA has not been
filled?
Ms. Andrews-Maltais. It's my understanding that that wasn't
exactly his sole responsibility. That in his professional
career path, he had developed an expertise in that particular
area, so it was part of the rest of his job duties. And because
he had a specific expertise, that's why it wound up in there.
But we would be happy to, you know, go back and look at, and
speak with our Office of Tribal Justice with regard to, you
know, what resources we may have.
I think it would also be imperative upon us to have
consultation with the tribe in order to move that type of
initiative forward.
But it is critical to be able to have those types of people
with that level of expertise, and trained in that area, to be
able to assist the other agencies that are working to try to
combat this problem.
Senator Udall. Thank you. And I think this person being a
point person and getting known over a period of time was very
important in terms of kind of coordinating and putting all of
the resources behind it, so--and you didn't mention funding
issues, but if there's a problem there, I'm happy to help on
the appropriations side where I serve as the ranking member at
this point on the subcommittee with the Interior Department
Bureau and the Indian Affairs.
So your assistant passed you a note, is there anything else
you want to speak to with that?
Ms. Andrews-Maltais. We do have somebody that's in the
position, but it's not the individual that had retired. But the
position--there is a position that also has those
responsibilities, that is currently filled. And like everything
else, the resources, whether it's human or financial, are
always, you know, a concern, because this is evolving at a
greater pace than it had been in the past.
It's always been there, but it seems to be a much greater
appetite for cultural items within these areas, and the
extensiveness of the land bases that we have, tribal cultural
monitors were also a recommendation from the tribes, as well as
creating a point of contact, or similar to a desk, or something
along those lines, so that there is consistency and a level of
expertise that is gained through having individuals that have
particular expertise in an area be able to do the outreach and
work within the other agencies, and with the tribes
specifically to better understand what those issues might mean
individually for those tribes.
Senator Udall. Thank you. And Senator Heinrich, questions.
Senator Heinrich. Thank you, Senator Udall.
Ms. Andrew-Maltais, I want to start with you, and you had
mentioned in your earlier testimony a number of recommendations
that you've received from tribes to help on this front. One of
them was changing the legal definition of provenance or
ownership, do you have specific language in mind for that?
Ms. Andrews-Maltais. Well, we're not completed with our
consultations, and we would rely very heavily on the tribes to
also be able to assist us with formulating what that language
or position would be. But we'd be happy to work with the
Committee and with staff in order to develop that, because
we've found what's happened is that it's difficult for the
prosecutors or the investigators to be able to prove that these
items were stolen, and from where they might have been taken.
However, if the understanding is is that these items always
do and always have belonged to the tribe in its entirety, and
without the expressed free prior informant consent of the
tribes to have those items alienated from the community, then
the position should be that they were unlawfully gained or
illicitly gained, and taken away from the tribal community.
Senator Heinrich. I think that's an important distinction.
I think both of us would love to work with you on that front.
Mr. Toulou, you mentioned just the challenge of enforcing
looting laws over such a large area, and we all know the
challenges of that in the west, but would additional funding
for BIA, BLM, Forest Service, Park Service, law enforcement, be
an important step in preventing looting in the first place?
Mr. Toulou. It's always----
Senator Heinrich. Sorry to put you on the hot seat.
Mr. Toulou. Not at all. It's always good to have more
hands, although, I would not represent that necessarily as a
Departmental position.
It's also important for us to work with our tribal
partners. And we try to do that as much as possible. You know,
the next panel is a good representation of tribes that have
really thought hard about this, and referred cases to us, and
have people who are watching what's going on on the ground.
Often, they're in the best position, frankly, to see those
things come up, and we do--we make do with what we've got for
now. Thank you.
Senator Heinrich. I understand. Mr. Taplin, one of the
things we had talked about was the fact that the STOP Act
established an explicit prohibition on export of these items.
From a diplomatic perspective, as opposed to a law enforcement
perspective, how would an implicit prohibition on exporting
protective Native American cultural objects make your job
easier at the Department of State to work with other nations to
secure return of those items?
Mr. Taplin. Yeah. I don't want to comment specifically on
the legislation, although I'm familiar with it, Senator, and
have taken a careful look at it. I guess it's a general
observation, though, about our diplomatic practice. I do
believe that a number of the things which are reflected in the
legislation broadly would tend to strengthen our hand
diplomatically, whether it would be trying to address the
question of export controls, because that is a question that
we've heard from other governments when we have raised the
repatriation issues in one or another way. And some of the
other steps which I think are envisioned, which demonstrate our
seriousness of purpose as a nation in terms of protecting our
cultural heritage.
All of those kinds of responses, including, I think, you
know, a number of the provision of the legislation, you know,
would tend to strengthen our hand diplomatically in these
conversations.
Senator Heinrich. Thank you. That's very helpful.
Mr. Toulou, once again, when the Department of Justice
prosecutes cultural and sacred object cases, is NAGPRA your
primary statute in those cases, or do you often use other
Federal statutes instead?
Mr. Toulou. It really depends on the facts of the case. I
mean, we will use ARPA, we will use NAGPRA, we will use, you
know, theft from Federal lands. It depends on what we can use.
I mean, I think some of the recent cases that I'm not going to
comment on in detail, have shown that, you know, we can be
creative in how we use the statutes. It doesn't mean they're
perfect, but we'll use whatever resources we have, because this
is very important to us.
Senator Heinrich. Would there be changes to NAGPRA that
would result in more cases being prosecuted specifically under
that statute that would maybe align better with the nature of
the crime as opposed to trying to use another tool that maybe
wasn't as specifically intended for these particular kinds of
cases?
Mr. Toulou. Yes, I think, you know, obviously, a statute
that's designed to meet the needs or to address the crime at-
hand would be better. And we're currently working with the
folks here at the table, and the agencies they represent, and
the tribes, to come up with, you know, better solutions in the
statutes, that would help us prosecute those crimes. And we're
happy, again, to work with your staff on that.
Senator Heinrich. Thank you.
Mr. Rodriguez, in your written testimony, you mentioned
that the Homeland Security investigations teams in New York and
Los Angeles are leading the effort under the cultural property,
arts, and antiquities programs. Are these teams receiving
training to help them be able to identify cultural items that
are illegal to sell under current U.S. law, but which are not
explicitly illegal to export from the United States?
Mr. Rodriguez. Homeland Security Investigations conducts
yearly training for these teams, as well as special agents and
other professionals that work on these investigations. It's
done through funding provided by the Department of States
Cultural Heritage Center. And also in coordination with the
Smithsonian Institute.
I don't have the specifics of the content of the training,
but will be happy to provide that at a later time, but I do
know that it covers these areas in a way that provide
awareness, not just to import/exports, but issues in general.
For example this year's training included a day that was
conducted at the National Museum of the American Indian, which
provided them with presentation from the staff there, as well
as a visit to the exhibits. And that was a step to help raise
the awareness that these issues do exist.
It does involve training from the National Park Service,
which conducts a session on domestic looting, and the
intersection with the international market.
And we look forward to expand that collaboration to this
area more specifically. And I think steps have been taken in
the right direction already.
Senator Heinrich. I want to thank you-all for your
testimony here today. That concludes my questions, Senator
Udall.
Senator Udall. Thank you Senator Heinrich, and before we
move to the next panel, just one final question to all of you
for the record. Can I get your commitment to provide a
concerted effort to work directly with the tribes on
consultation on this issue, Ms. Maltais?
Ms. Andrews-Maltais. Absolutely.
Senator Udall. Mr. Toulou?
Mr. Toulou. Yes.
Senator Udall. And Mr. Taplin?
Mr. Taplin. Absolutely.
Senator Udall. Mr. Rodriguez?
Mr. Rodriguez. Most definitely.
Senator Udall. Thank you. And thank you so much for that
response, and as you well know, this is incredibly important to
protect tribal identity for future generations. We really
appreciate you being here. We're going to excuse this panel. I
know some of you have schedules and planes and things, but to
the extent that any of you can stay and listen to the next
panel, which I think will give you a perspective on what we're
dealing with here, it would be very helpful.
We'll just take a short recess. You are excused, and take a
short recess, be back within five minutes so that we can have
the next panel come forward and change the name plates.
Thank you very much. Short recess.
[Recess was taken from 11:16 a.m. to 11:24 a.m.]
Senator Udall. So I'll bring us back into session here. And
we will now hear from our second panel of witnesses. We have
the Honorable Kurt Riley, Governor of the Pueblo of Acoma; the
Honorable Paul Torres, Governor of the Pueblo of Isleta and
Chairman of the All Pueblo Council of Governors; the Honorable
Russell Begaye, president of the Navajo Nation; Dr. Gregory
Schaaf, historian and retired professor of Native American
studies at the University of California; and Ms. Honor Keeler,
Director of the International Repatriation Project at the
Association on American Indian affairs.
It is wonderful to have the whole panel here today. I look
forward to hearing your testimony, beginning with Governor
Riley. Governor Riley, please proceed.
STATEMENT OF HON. KURT RILEY, GOVERNOR, PUEBLO OF ACOMA
[Native American Language Spoken.]
Mr. Riley. Senators Udall and Heinrich, members of the
Committee, tribal leaders, and guests, thank you for allowing
us this time with you to testify before you.
My name is Kurt Riley. I am the Governor for the Pueblo of
Acoma. And we are deeply appreciative of the time taken by the
Committee and your staff to travel to Albuquerque, and to
devote your attention to this important issue.
The Pueblo of Acoma has a great deal of experience dealing
with this issue. And is grateful for the opportunity to share
our experience with you. I'd like to begin by trying to
describe the kinds of objects we are all interested in
protecting. There is a misconception about the kinds of objects
tribes like Acoma are seeking to protect.
Admittedly, the cultural objects Acoma wants protected are
difficult to describe. Our traditions and cultural laws often
restrict us from publicly discussing some of these items that
are sacred and used in ceremony, known and understood for the
most part by my Acoma people.
But for context, I would encourage the Committee to note
the kind of objects that have been part of our public
repatriation efforts, like the Acoma Shield, the priest robes
in the case United States vs. Tidwell, and the items in the
criminal case, United States vs. Brian Garcia and Gerald
Garcia.
Their value and place within the community is similar to
those described in the case Pueblo of San Ildefonso vs. Ridlon
or the return of the Zuni War Gods.
The highly publicized repatriation effort by Zuni Pueblo
near the time the Native American Graves Protection and
Repatriation Act was passed.
It may be easier to describe what these items are not.
These items are not created by Pueblo artists and potters. We
do create works of art, pottery, paintings, and sculptures for
the purpose of commerce. Sharing these works with the world is
encouraged.
We fully support those Acoma artists who create works of
art, to provide for themselves and their families.
Instead, the objects we are concerned with are those
cultural objects that are central to our belief system and our
traditional way of life.
Often these objects are cared for, stored, or used by
individuals, families, or different societies within the
Pueblo.
These items are cared for or stored in communal buildings
or individual homes for safekeeping, until they are needed in
ceremony.
Although, they may have some intrinsic artistic value,
their purpose and intended use is very different.
It is important to note that the cultural objects the
Pueblo seeks to protect are only those that fall within the
definitions and standards of existing Federal law.
NAGPRA and ARPA have specific and detailed statutory
definitions for the objects they protect.
Acoma's process when encountering potentially protected
cultural objects is to determine whether the item is protected,
first of all, under tribal law.
And, more importantly, whether it fits within the
definitions and standards of existing Federal law.
Since the passage of NAGPRA, the Pueblo of Acoma has worked
extensively to recover cultural objects illegally removed from
the Pueblo.
The Pueblo has found and attempted to recover objects at
locations locally, regionally, nationally, and now
internationally.
We have identified an alarming number of Acoma cultural
objects just within the last two years.
The Acoma Shield being held in Paris is a public example of
our most recent repatriation efforts.
What we learned from our experience with the Paris auction
house and with similar repatriation efforts, is that we need
the help of Federal law and Federal authorities.
We are grateful for the assistance by Congress, especially
with the introduction of the Safeguard Tribal Objects of
Patrimony, the STOP Act, in both the House and Senate, and the
Senate passage of the Protect Act.
The Pueblo of Acoma fully supports the STOP Act's passage,
as it gives us an explicit tool to close the doors on the
illegal exportation of our cultural objects, and creates an
opportunity for pueblos, tribes and nations, and in the Native
American Arts and Antiquities industry to work together.
The provisions of the STOP Act are designed to keep Native
American cultural objects where they belong, as well as to
facilitate the return of those that have left or been removed
from tribal possession.
We understand that the STOP Act has received criticism from
some members of the Native American arts and antiques industry.
We believe that the criticism is unfounded. And in many
instances is based on a misunderstanding of the purpose,
effect, and intent of the STOP Act's provisions.
We have addressed these concerns in the written testimony
we've submitted. What is clear to Acoma is that we cannot rely
on the voluntary, unsolicited return of these items by
collectors or dealers. That has only happened once in the last
10 years for Acoma. That approach simply doesn't work.
Finally, the Pueblo of Acoma urges this Committee to fully
support and appropriate funding for the creation of a cultural
items unit within the Department of Interior; specifically, the
Bureau of Indian Affairs, to investigate violations of NAGPRA,
ARPA, and related statute.
In addition, further funding is needed for the United
States Attorney's Office to assist in the prosecution of
crimes; specifically, to the illegal sale, theft, and marketing
of cultural objects.
The Pueblo of Acoma, along with tribal communities across
this country cannot do--can only do so much to monitor and
recover the cultural objects that we are able to find through
public venues and publications.
We know we are only scratching the surface when it comes to
finding cultural objects that may be out there, being bought
and sold in private transactions.
We need the assistance, resource, and force of Federal law
to fully shine the light on the illegal market that traffics
our cultural items.
In the most recent events of the Acoma Tribal Shield, I
want to thank the U.S. Attorney, Damon Martinez, for committing
extraordinary resources to--at least, at this point, the Acoma
Shield being held from being sold.
And with that, thank you for listening to the Pueblo's
concerns. I will be happy to answer any questions that you may
have. Thank you.
[The prepared statement of Mr. Riley follows:]
Prepared Statement of Hon. Kurt Riley, Governor, Pueblo of Acoma
On behalf of the Pueblo of Acoma (``Pueblo'' or ``Acoma''), please
accept this written testimony for the field hearing on the ``Theft,
Illegal Possession, Sale, Transfer and Exportation of Tribal Cultural
Items'' held by the Senate Committee on Indian Affairs on Tuesday
October 18, 2016 in Albuquerque, New Mexico. Acoma is deeply
appreciative of the time taken by the Committee in devoting its
attention to this important issue. Acoma has a great deal of experience
in both combating illegal trafficking of its protected cultural objects
and in seeking repatriation of those objects. The Pueblo is grateful
for the opportunity to share this experience with you.
1. Acoma's Background on the Protection of Cultural Objects
The cultural objects Acoma is attempting to protect are difficult
to fully describe and publicly identify because of their sacred and
confidential ceremonial use. However, the objects the Pueblo has an
interest in protecting are those that are central to our cultural
belief system and way of life. They are very different from the
beautiful works of art created by our tribal artists and potters. While
our cultural objects may have some intrinsic artistic value, their
purpose is very different. Under Pueblo of Acoma traditional law, it is
illegal for any member, who may have these cultural objects in their
care to sell or remove the object from the Pueblo of Acoma. \1\
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\1\ Different types of Acoma cultural objects may be stored, cared
for, or used differently depending on what the object is. For example,
some cultural objects may be cared for and stored by individuals or
families in their homes. Other times, different cultural objects may be
cared for and stored in communal buildings, called kivas, by specific
societies or clan groups. Other times, these objects may be placed
outside in the open at sacred sites. Objects are put in special places
to be left there permanently, not unlike the San Ildefonso Pueblo
object at issue in the case of Pueblo of San Ildefonso v. Ridlon, 103
F.3d 936 (10th Cir. 1996), or the repatriation of the Zuni War Gods in
the late 1980s (a well known example of the removal of cultural objects
from area shrines).
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They also qualify as protected cultural objects under federal law,
especially as cultural patrimony under the Native American Graves
Protection and Repatriation Act (NAGPRA), and therefore may not be
alienated by any individual. Many collectors have argued that these
objects were lawfully acquired and can be legally sold. This is a false
statement and mischaracterization of how Acoma law and federal law
treat these objects. Under Acoma and federal law, the Pueblo itself
effectively owns the objects in question. \2\
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\2\ The clearest analogy to describe Acoma law is the legal concept
of property rights being a ``bundle of sticks.'' For Acoma, some
members may have rights of possession, but they do not have the right
to sell an object of cultural patrimony. In fact, traditional law
dictates what is to happen to a cultural object if a caretaker can no
longer care for the object. The right to sell an object of cultural
patrimony, although not contemplated in Acoma traditional law, would be
exclusively reserved to Acoma itself. Certainly, the Pueblo has never
exercised this right. Acoma's traditional law closely mirrors the
definition of ``cultural patrimony'' defined under NAGPRA found at 25
U.S.C. Section 3001(3)(D).
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A current and public example of Acoma's efforts to protect its
important cultural objects can be seen in the Pueblo's effort to
prevent the sale and auction of a ceremonial shield being auctioned in
Paris, France, in late May. In this instance, the Pueblo believes the
shield was stolen from the shield's caretaker in the 1970s, and was
eventually exported overseas. Unfortunately, this incident is only one
of many that the Pueblo has actively dealt with in recent years. Some
of the earliest recorded incidents of the Pueblo's efforts involve
federal criminal convictions handed down just after the passage of
NAGPRA in 1990. In United States of America v. Brian Garcia and Gerald
Garcia, 92-515 JC (D.N.M. 1992), two Acoma brothers pled guilty to
illegal trafficking of Acoma cultural patrimony in violation of NAGPRA
and other federal criminal law. The Pueblo of Acoma worked closely with
the United States Attorney's Office to verify the provenance of the
objects taken. This case represents the degree and extent that Acoma
treats this issue by pursuing the federal conviction of our own people.
Later in 1999, a set of historic Catholic priest robes cared for by
Acoma, dating from the time of the Pueblo Revolt, left the Pueblo. They
were recovered along with a number of Hopi objects of cultural
patrimony. An Acoma Bureau of Indian Affairs (``BIA'') Special Agent
investigated a tribal art and antique dealer, and that investigation
led to his conviction and the recovery of these objects. See United
States v. Tidwell, 191 F.3d 976 (9th Cir. 1999). For Acoma, these two
cases, some of the earliest and most important federal criminal
convictions, demonstrate the Pueblo's commitment to the protection of
its cultural objects.
Later, in the 2000's, as national and international auction houses
began to expand and reach more collectors through the Internet, Acoma
became significantly more involved in attempting to identify and
recover its cultural objects. In 2006, the Pueblo of Acoma worked
diligently with its legal counsel for the return of historic wooden
beams and doors from the San Estevan del Rey Mission Church. \3\ A
national auction house had possession of the wooden beams along with
nearly 50 other sensitive Acoma cultural patrimony objects. All were
returned. With the increased availability of auction house catalogues
on the Internet, the Pueblo regularly attempts to monitor and respond
to auctions involving its cultural objects. The consistent monitoring
has led to discovering otherwise inaccessible or unknown art and
antique gallery inventories. However, this monitoring practice may only
be scratching the surface. We do not know the exact number or the kind
of cultural objects that may be out there; we do know there are many,
and any is too much.
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\3\ The San Estevan del Rey Mission Church sits atop the mesa at
the Pueblo of Acoma. Founded in 1629, it is still cared for and
maintained by the Acoma people.
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In 2015, the Pueblo of Acoma uncovered a disturbing number of its
cultural objects for sale in a variety of contexts. They were being
sold in locations locally, nationally, and internationally. Across 10
separate incidents; 24 separate Acoma cultural objects were identified
as being available for sale, or having already been sold. Of these 24
objects, the Pueblo was only successful in securing the return of only
11 of these objects. Just this year, the Pueblo of Acoma has
encountered and identified 15 Acoma cultural objects for sale, or
having already been sold. The Pueblo was successful in recovering only
9 of these objects. Acoma has actively worked closely with its sister
tribes, such as Laguna, Jemez, and the Hopi Tribe in informing them of
sacred cultural objects that Acoma has encountered, which may be
culturally significant to them.
The Pueblo of Acoma wishes to highlight a very significant point.
The Pueblo asks this Committee to not to think of these sacred and
ceremonial objects in property right terms like title and
``ownership.'' If these objects are merely treated like other pieces of
property, their true significance is lost. Instead it is important to
move beyond the Western view of property rights and consider this issue
as one of human and cultural rights, unique and Indigenous to the
Native people of this country.
2. Support for the STOP Act
The Pueblo of Acoma fully supports the passage of the Safeguard
Tribal Objects of Patrimony (STOP) Act, S. 3127 and H.R. 5854. The STOP
Act makes changes to existing federal statutes that strengthen the
ability of tribes to protect their important cultural objects. Existing
federal statutes include NAGPRA, 25 U.S.C. 3001-3013, 18 U.S.C.
1170; the Archaeological Resource Protection Act (ARPA), 16 U.S.C.
470aa-470mm; and the Antiquities Act, 16 U.S.C. 431-433 repealed
and re-codified at 54 U.S.C. 320301-320303, 18 U.S.C. 1866. The
STOP Act's provisions increase penalties under NAGPRA, create an
explicit prohibition on exportation of protected Native American
cultural objects, and provide for limited immunity for individuals
voluntarily repatriating objects. These provisions are designed to both
keep Native American cultural objects with tribes where they belong and
to facilitate the return of those that have left tribal possession. The
STOP Act also calls on the Federal government with the help of a tribal
working group, to conduct studies designed to protect Native American
cultural objects.
Current federal law does not adequately address and protect the
hundreds of cultural objects that have been trafficked from the United
States to overseas markets. A quick look at past auction catalogues of
places like the Eve Auction House in Paris, France, where the Acoma
shield was to be sold, quickly reveals the sheer enormity of Native
American cultural objects that have left the country. \4\ Most of these
objects are likely subject to their respective tribal laws and other
federal laws. Put simply, countries like France have become a safe
haven for this illegal market where the most sensitive of cultural
objects are sold to the highest bidder, and tribes have no recourse.
The STOP Act is an important tool to close the door on the illegal
trafficking of our important cultural objects and send a message that
this illegal practice will not be tolerated.
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\4\ The French auction of Native American sacred objects and
artifacts has been widely reported since at least 2013. See Tom
Mashberg, Secret Bid Guides Hopi Spirits Home, NEW YORK TIMES, (Dec.
16, 2013), http://www.nytimes.com/2013/12/17/arts/design/secret-bids-
guide-hopi-indians-spirits-home.html; Tom Mashberg, Despite Legal
Challenges, Sale of Hopi Religious Artifacts Continues in France, NEW
YORK TIMES, (June 29, 2014), http://www.nytimes.com/2014/06/30/arts/
design/sale-of-hopi-religious-objects-continues-despite-us-Embassys-
efforts.html; SeaAlaska Heritage Institute, Secret Bidder Saves Sacred
Object from Auction for Alaska Natives, INDIAN COUNTRY TODAY, (Sept. 6,
2014), http://indiancountrytodaymedianetwork.com/2014/09/06/annenberg-
foundation-returns-sacred-object-alaska-natives-156764; AP, Navajos
Reclaim Sacred Masks at Auction, CBS NEWS, (Dec. 16, 2014), http://
www.cbsnews.com/news/navajo-indians-buy-back-sacred-masks-in-france-
auction/; Reuters, Hopi Sacred Masks Auction in Paris Despite Protests,
REUTERS, (June 11, 2015), http://www.reuters.com/article/us-france-
auction-masks-idUSKBN0OR1DG20150611.
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3. Addressing Criticisms of the STOP Act
The Pueblo of Acoma is aware that the STOP Act has come under
criticism by a small segment of the representatives of the Native
American Indian art and antique industry. Predominantly this has been
from public statements by organizations like the Antique Tribal Arts
Dealer Association, Inc. (ATADA). We would like to take this
opportunity to address and dispel some of the major arguments ATADA has
made.
MYTH: The STOP Act is not necessary as current federal law already
prohibits the exportation of protected cultural objects.
RESPONSE: It has been argued that criminal provisions of the
federal statutes cited in the STOP Act already prohibit the exportation
of protected cultural objects through the use of the term
``trafficking.'' While it is arguable that ``trafficking'' may
incorporate ``exportation,'' in reality, it is clear that this language
is not being interpreted in this manner. In the Pueblo's most recent
effort to recover the Acoma shield, France cited directly to United
States law and pointed to the absence of explicit exportation
prohibitions on cultural objects like the shield in its reasoning for
not halting the auction initially. This has resulted in the Pueblo
attempting to halt auctions of its protected cultural objects abroad
without success, including pursuing legal actions and filing the
necessary complaints. \5\ Clear language stating that exportation of
protected cultural objects is prohibited is needed to provide a
necessary tool for tribes and the United States to use to prevent
cultural objects from leaving the country, and negotiate the return of
cultural objects illegally exported.
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\5\ The Pueblo of Acoma previously unsuccessfully attempted to halt
the sale by the Eve Auction House of the shield and other Acoma
cultural objects by the Christophe Joron-Derem Auction House in 2015 in
Paris, France. Fortunately at that time, the shield did not sell and
became available again for sale in 2016. However, the other important
Acoma cultural objects were sold and are gone forever.
MYTH: The STOP Act does not provide clarity or notice regarding
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which objects qualify as protected.
RESPONSE: It has been alleged that the STOP Act does not provide
the necessary clarity to define what objects are protected. This is
inherently a criticism of the underlying laws that the STOP Act relies
upon. It is important to note that the STOP Act does not create
protections or penalties for any object that is not already protected
under existing federal law. The STOP Act applies to ``Native American
cultural objects,'' which include objects meeting the following
definitions: ``cultural objects'' under NAGPRA, 25 U.S.C. 3001(3);
``archaeological resources'' under ARPA, 16 U.S.C. 470bb (1); and
``objects of antiquity'' under the Antiquities Act, See 18 U.S.C.
1866(b). However, ``Native American cultural objects'' only include
such objects when the object is ``Native American'' as that term is
defined in NAGPRA, 25 U.S.C 3001(9).
The definitions used by the STOP Act are legally sufficient. Courts
have routinely upheld these definitions as not unconstitutionally
vague, even when law enforcement officials or courts look to tribal law
or tribal representatives to determine whether objects are qualify for
federal protection. See, e.g. United States v. Tidwell, 191 F.3d 976
(9th Cir. 1999) (upholding NAGPRA); United States v. Carrow, 119 F.3d
796 (10th Cir. 1997) (upholding NAGPRA); see also United States v.
Austin, 902 F.2d 743 (9th Cir. 1990) (upholding ARPA); United States v.
Smyer, 596 F.2d 939 (10th Cir. 1979) (upholding the Antiquities Act);
but see United States v. Diaz, 499 F.2d 113 (9th Cir. 1974) (finding
Antiquities Act unconstitutionally vague).
Further, Congress has already closely considered this issue,
including debate with competing testimony from tribes, museums, and
private collectors. For example, at the time of the passage of NAGPRA,
the Select Committee on Indian Affairs resolved to ``[c]arefully
consider[] the issue of defining objects within the context of who may
be in the best position to have full access to information regarding
whether an object is sacred to a particular tribe. . .'' See S. Rep.
No. 101-473, at 4 (1990). For ``sacred object'' the Committee
determined that it is much more than an object being ``imbued with
sacredness in the eyes of a Native American[,]'' but rather the object
must have been used in a traditional religious ceremony or ritual, and
have a religious significance or function when possessed by a Native
American. Id. at 5. For ``cultural patrimony'' those objects must have
ongoing ``historical, traditional, or cultural importance[,]''
inalienable by any individual.'' Id. As examples, the committee listed
cultural patrimony such as Wampum belts of the Iroquois and the Zuni
War Gods. Id. The Pueblo of Acoma believes the intention of statutes
like NAGPRA as interpreted by Congress and the courts, was to clearly
value tribal culture and law that ultimately dictates the function,
treatment, and distinction of what is considered ``sacred'' or
``cultural patrimony.'' The mens rea, or knowledge/intent, element of
NAGPRA's criminal provision balances this consideration with the
protection of the unwitting consumer who may unintentionally violate
federal law. Instead the Pueblo's concern lies more so with those
individuals who do know they are in violation of tribal and federal
law, or who have enough prerequisite knowledge and information to pause
and find out the legal status of a cultural object. \6\
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\6\ See e.g. United States v. Tidwell, 191 F.3d 976, 980 (9th Cir.
1999) (suggesting that sufficient knowledge of Native American Art and
NAGPRA should imply that individuals may ``have to inquire further or
consult an expert when. . . purchas[ing] the objects'' and stating
```one who deliberately goes perilously close to an area of proscribed
conduct shall take the risk that he may cross the line.''').
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In order to more effectively protect its important cultural
objects, and provide well-intentioned dealers with guidance, a way to
provide more notice and clarity regarding which objects are protected
may be useful. It is important this idea be formulated by tribes and
structured to function within tribal legal and traditional systems.
Therefore, the Pueblo is considering various methods to provide greater
clarity. These ideas include the following actions:
Create a system where collectors can receive a letter from a
tribe before purchasing or selling an object certifying that
the tribe does not deem the object protected. If a prosecution
were later initiated, the certification would serve as prima
facie evidence that the object is not protected for purposes of
that specific tribe.
Create a certification system, by establishing a method for
collectors to submit an inquiry by email or phone to receive a
referral to the cultural representative of a tribe likely to
have a cultural connection or be knowledgeable or aware of an
object the collector is considering purchasing.
Create regional networks of experts, at designated regional
academic institutions or museums, to whom collectors could
reach out to with questions and receive similar referrals to
the appropriate tribal cultural representative for further
information.
It is paramount that if collectors or dealers are unsure if an
object is from a particular tribe, they should simply contact the tribe
for more information. We believe the ideas outlined above will
alleviate some of the confusion collectors or dealers encounter when
they do not know the cultural affiliation or legal status of the
objects they are buying or selling.
To create a comprehensive list of protected cultural objects is
impractical and inappropriate. There are 567 federally recognized
tribes, each with its own objects meeting the criteria for existing
federal protection. More important, traditional knowledge about the
existence and treatment of cultural objects may be diffused through the
community. For the Pueblo of Acoma, no one person or group knows
comprehensively the entire scope and inventory of cultural objects
within the Pueblo. Instead, the appropriate individuals or groups that
interact within a particular living culture may keep this knowledge
separately. Therefore, it may be impractical, and culturally
inappropriate, to require tribes to divulge information in its entirety
regarding protected cultural objects. In addition, this divulgence may
only fuel the market for rare and desirable objects given their
esoteric nature. Finally, such a list may unintentionally give a
presumption of completeness that only the objects on this list are
protected.
MYTH: The amnesty window will cause unwarranted return of objects
lawfully owned.
RESPONSE: The STOP Act is designed to explicitly prohibit
exportation of protected objects, thereby making it easier to establish
that their sale overseas is illegal. The proposed Act will facilitate
their return through legal channels. The amnesty window is designed to
allow open dialogue between tribes and collectors or dealers regarding
what specific objects may be protected under federal law. It creates a
venue for dialogue and communication that groups like ATADA imply they
need. The amnesty window provides an opportunity for repatriation of
cultural objects without fear of having unintentionally violated the
law.
Further, it is clear from Acoma's own experiences that federal and
tribal enforcement of statutes through the judicial process is
extremely expensive and time consuming. Tribes are not always able to
invest or commit the necessary resources to seek the repatriation of
culturally significant objects. They are not always able to convince
federal law enforcement officials to invest their own resources to
repatriate objects on a tribe's behalf. Additionally, some individuals
who have protected objects in their possession and know they are
protected may want to return the objects without undergoing judicial
action. For these reasons, voluntary repatriation of protected objects
is essential, and the amnesty window encourages the amicable resolution
among all parties.
MYTH: The STOP Act will damage businesses and Native artists.
RESPONSE: In the Pueblo's experience, the vast majority of
inventories held by collectors or dealers are of no concern to the
Pueblo. Acoma is fairly certain that only a very small segment of an
individual's collection may be protected. Provisions like the amnesty
window are meant to provide an opportunity for open dialogue, amicable
resolution and repatriation of the small segment of objects that are
protected. This process will hopefully provide greater clarity for the
market and boost consumer confidence.
Furthermore, Native American artists are generally not creating
objects that are considered protected under federal law, or under the
proposed STOP Act. The Pueblo of Acoma does support and encourage its
community members and other tribal artisans to create art forms and
other exceptional expressions of their tribal culture--whether it is by
pottery, paintings, weavings, jewelry, or other mediums. These pieces
of art should be celebrated and shared with the world. These are not
the objects that the Pueblo feels need federal legal protection.
MYTH: The STOP Act will deprive museums of important resources in
cultural education.
RESPONSE: The STOP act provides additional support and protection
for the very objects that are considered core to a museum's mission--to
give meaning and understanding to a living tribal culture. While it is
important to protect a museum's resources, of even greater importance
is the need to protect the very cultures a museum seeks to educate and
inform the public about. The cultural objects that the Pueblo is
interested in protecting are essential to the Pueblo's continued
cultural survival and a way of life that has existed and sustained us
since we first stepped into this world.
The Pueblo has placed tremendous importance on ``cultural
education.'' This inherent tribal value comes from the ability to
control and care for significant and highly sacred cultural objects.
This value is then passed on through ceremonial practice and use along
with lengthy explanations and admonitions. The continued unfettered
passage of cultural knowledge especially to Acoma's next generation
cannot be understated. We encourage dialogue with museums or
institutions that may have these concerns, and applaud those
institutions and museums that not only recognize this important value
but, support our efforts to protect our cultural objects. We strongly
suggest that museums work with tribes, to build a cultural education
framework for our nation's citizens in collaboration with tribes--not
by using sacred and ceremonial tribal objects in a blasphemous or
deleterious manner.
4. Support for Funding
The Pueblo of Acoma seeks and fully supports an appropriation to
fund a Cultural Items Unit within the Department of the Interior to
investigate violations of NAGPRA, ARPA, and related statutes. \7\ Often
times, cultural objects that are trafficked or put up for sale have a
brief and limited time for action before they are sold and possibly
disappear forever. The Pueblo has experienced, to its dismay, instances
where seeking federal assistance for such an emergency has gone
unanswered, only to watch as an object disappeared. The development of
a Cultural Items Unit is essential to curbing the illegal trafficking
of protected cultural objects. The placement of this unit within the
Department of Interior is significant as officers and special agents
with the Bureau of Indian Affairs are often the ``first responders'' to
crimes in Indian Country. The Pueblo has begun to establish a regional
relationship with its local Bureau of Indian Affairs Office and United
States Attorney's Office to investigate crimes related to removal and
trafficking of its protected cultural objects. However, we understand
this relationship is not uniformly shared or established in other
regions of the country. The creation of a Cultural Items Unit within
the BIA would be similar to the Federal Bureau of Investigation Art
Crimes Unit and the United States Fish and Wildlife Service special
agents who are trained specifically for investigations within their
respective areas of expertise; a similar model is needed for the
specialized investigation of cultural object crimes.
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\7\ See House Report 114-632 (recommending the appropriation of
$1,000,000 for the development of a Cultural Items Unit within the
Department of the Interior).
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As a result of increased investigation into these types of crimes,
the Pueblo of Acoma calls for Congressional support for increased
appropriations for the United States Attorney's offices to cover the
cost of criminal and civil actions taken to protect cultural objects,
especially in the southwestern part of the United States where so many
Indian tribes are located. Acoma also believes it is important for
funding to be made available for tribes to strengthen their tribal
courts and update their law and order codes specific to their own
cultural protection laws. This increase in resources will only assist
the United States Attorney's Office in bringing stronger cases against
those who violate current federal laws protecting cultural objects.
Since the introduction of the STOP Act there has been a surge of
interest in this issue, resulting in increased contact between Acoma
and various collectors and dealers. Acoma seeks to build and expand its
positive relationships with this community. When they return these
objects home it is a joy for us. We are extremely thankful. We do not
want to have to rely on the law and the courts to secure their return,
but it must be emphasized that the law must set forth the values of the
United States and its Native peoples and because of that, we fully
support the STOP Act. The Pueblo looks forward to working with the
Committee, generating good will with those who have supported the Act,
refining it as needed, and finally by securing its ultimate passage.
Senator Udall. Thank you so much, Governor Riley. I really
appreciate your testimony here. Governor Torres, Chairman
Torres, also.
STATEMENT OF HON. E. PAUL TORRES, GOVERNOR, PUEBLO OF ISLETA
Mr. Torres. [Native American Language spoken.]
Thank you, Senator Udall and Senator Heinrich. I would like
to begin by publicly thanking both of you Senators, also
Senator John McCain.
I would like to begin by publicly thanking the both of you
Senators, Senator Udall and Senator Heinrich, and also Senator
McCain from Arizona, for recently introducing a Senate
Concurrent Resolution 49 in support of effort to stop the
illegal--to stop the theft, illegal possession or sale, and
export of tribal cultural items.
The bipartisan protection of the rights of tribes to stop
the export of cultural and traditional patrimony resolution is
a good expression of Congress's condemnation of the theft,
illegal possession, or sale, transfer, and export of tribal
cultural items.
It calls for the implementation of several measures to
identify and stop the illegal trafficking of tribal cultural
patrimony and secure repatriation of exported items to the
rightful Native tribal owners.
Very recently, the Pueblo of Isleta was confronted with a
situation that is worth discussion. In August of this year,
three traditional leaders came to my office to request some
assistance. We were told by one of the traditional leaders that
he and his wife had recently visited a local antique shop in
Albuquerque and saw what looked like a traditional ceremonial
pottery bowl that was used by his traditional society before it
went missing some time in the 1980s.
The home that it was in, the traditional leader's home, was
vandalized and robbed, and that's when this piece was noticed
to be missing.
Another traditional leader went to the shop, to this shop,
and verified that it was indeed the same pottery.
Because the pottery had been missing for such a long time,
and because the pottery was for sale to the public and could
have been purchased by a collector, never to be seen again in--
never to be seen in public again, I decided that the safest
thing to do was to send my Lt. Governor to purchase this
pottery, and to bring it back, to return it to the traditional
society where it belonged. And this pottery was for sale for
$1,200. So I sent my Lt. Governor to purchase it.
We didn't want to raise a red flag to the owner of the
store, because if we did, he would have probably gotten rid of
it immediately because there was a lot of money involved. And,
so, we purchased it and documented the purchase.
After the transaction occurred, we asked the salesman if he
knew who owned the item, and--the item that we had just
purchased, who had put it--who had brought it to his shop. And
he said that the store deals with about 10 different art
dealers who have their art on consignment basis. But he could
not recall who the art dealers were, and who this particular
art dealer was that had this pottery for sale.
He explained that that was just a salesperson, and that the
owner of the business was out of the country. He informed us
that the pottery was just purchased and was put on display
about six months prior to us buying it.
Although we are thankful that this ceremonial pottery is
back where it belongs, it is indeed an unfortunate situation
when an Indian tribe is forced to purchase back a cultural item
that was illegally taken from its rightful place.
If someone else wanted the ceremonial pottery that I just
described, he or she could have easily made the purchase
without the Pueblo or those traditional leaders even knowing
about it.
Also, given the recent use of social media and Internet
sites to facilitate transactions, it makes it exceedingly
difficult for an Indian tribe and traditional leaders to keep
track of cultural items that are up for sale to the public.
EBay, Amazon and Craigslist are just a few of the many
places one can buy and sell online.
Last year, the All Pueblo Council of Governors passed a
Resolution Number 2015-12 and 2015-13, calling on the United
States government to consult with Native Americans to address
international repatriation, and to take affirmative actions to
stop the theft and illegal sale of tribal cultural items both
domestically and internationally.
APCG continues to note that Pueblo Indian tribes of the
southwestern United States have been disproportionately
affected by the sale of tribal cultural items, both
domestically and internationally, in violation of Federal and
tribal laws.
More recently, in New Mexico--more recently, the New Mexico
State Legislature passed a joint memorial authorizing the New
Mexico Attorney General to consult with the Indian tribes of
New Mexico to create stronger state laws, to stop the theft and
illegal sale of tribal cultural items within the state of New
Mexico.
Last month, an initial meeting was held in Santa Fe between
the New Mexico Attorney General and the Indian tribes of New
Mexico where many concrete recommendations were put forth for
discussion.
The Pueblo of Isleta believes that both the state and the
Federal Government need to strengthen their respective laws in
order to prevent this kind of illegal activity from occurring.
It is a major problem for our communities, our livelihood,
and our way of life.
Because Senate concurrent Resolution 49 was voted on
favorably by the Senate recently, it is my hope that the
difference in language between this and the companion House
Resolution is quickly resolved so it can be fully implemented.
Thank you very much, and I will answer any questions that
are put forth to me. Thank you so much.
Senator Udall. Thank you so much, Governor Torres, and
thank you for sharing that very disturbing situation with us in
terms of the purchase back.
Please proceed, now, President Begaye.
STATEMENT OF HON. RUSSELL BEGAYE, PRESIDENT, NAVAJO NATION
Mr. Begaye. Yah-Ta-Hey.
Senator Udall. Yah-Ta-Hey.
Mr. Begaye. [Native American Language spoken.]
My name is Russell Begaye, President of Navajo Nation. I
just want to thank you, Senator Udall and Senator Heinrich, for
holding this field hearing right here in my home state of New
Mexico.
Last year, in 2015, we had to send a delegation to Paris to
buy back basically one of the most sacred of all of our
ceremonial masks, the Yei bi Chei. And earlier this year again,
same thing happened, 2000 percent increase in the demand--on
the demand in terms of the price of these objects.
And, so, in 2016, I sent a medicine man out to Paris to
retrieve these in an honorable and respectful way.
And, also, today, the National Park Service is holding
hostage the remains of Navajo people and sacred objects taken
from Canyon De Chelly, the heart of the Navajo Nation, being
held in the city of Tucson today.
I don't know why we have to go into litigation to retrieve
these objects, so we're demanding that the U.S. government
return these remains, and these sacred objects taken from the
Canyon De Chelly, the heart of the Navajo Nation immediately,
and we're asking members of Congress, Senator Udall, Senator
Heinrich, that you communicate with the Department of Interior,
that these remains and these objects be returned immediately.
Take it out of court where it should not have--where it should
never be.
And, so, as Navajo Nation entrusted with the protection of
funerary objects, sacred objects, objects of cultural
patrimony, since the beginning of time. As President of Navajo
Nation, I take this responsibility very seriously.
So I'm humbled to share the responsibility with our past
leaders and the medicine people who lead our ceremonies and our
sacred prayers.
These objects are central to our identity and critical to
our future as a people. They are as important as our language,
as important as for sacred Navajo mountains, and it's important
as this land that we have lived on since time immemorial.
Past leaders and traditional healers have worked tirelessly
behind the scenes for decades for return of cultural patrimony.
They have raised awareness of importance of these issues to the
world. They have also engaged in political and academic
leaders. These leaders have introduced many pieces of landmark
legislation, including the Native American Graves Protection
Act to provide security for not only the benefit of the Navajo
Nation, but for Indian Country as a whole.
As President of the Navajo Nation, I'm in full support of
these legislative actions.
Before many of the current cultural resource protections
were enacted, thousands of Navajo objects of cultural patrimony
were taken, stolen, and sold by people who have no right to
sell them. We recognize that some folks want to admire our art
and study our archeology for intellectual gain.
However, our object of cultural patrimony are often
distinct from our folk art and jewelry. Our sacred objects are
not to be hung on walls for decoration in mansions, are
cataloged and placed in storage bins and museum--in museum
warehouses around the world. They were and are constructed to
maintain our sacredness and wholeness of our people.
As such, we request Congress, that Federal Government pass
legislation to further protect and repatriate our cultural
heritage. These laws have timelines and teeth for compliance.
In our dealing with the auction house in Paris, we ask and
demanded that they take these objects off the auction block,
but they refused to do so. I asked specifically that I talk
directly to the owners of these objects, and I was refused
also.
And, so, having gone through the White House, going through
members of Congress, to the Attorney General and to the
country, to government of France, to try and get these objects
off of the auction block. We were unsuccessful. We turned to a
legal firm in the City of Paris to help us to negotiate the
return of these sacred objects, which we had to do. We had to
pay, when we should not have to pay for these objects at a
1,000 percent increase because of my negotiation with the
auction house, we finally were able to return these objects by
having a medicine man flown out there and have him purchase
these objects and return them back to the Navajo Nation land.
So, we commend the House and the Senate for passage to
protect patrimony resolution. We also look forward to working
with Congress and the administration to enact current measures,
including the STOP Act, a bill to prohibit the exporting of
sacred and Native American items, and increased penalties for
stealing and illegally trafficking tribal cultural patrimony.
And places off the Navajo Nation, places like Bears Ears. We
know there are people that are robbing those sacred objects,
that are in those places, and so we're asking that protection
be not only on Indian Trust land, but on Indian Country, like
the Bears Ears, and other places like that, like the Grand
Canyon.
So, again, thank you for listening to my testimony, and I
will be willing to take any questions. Thank you.
[The prepared statement of Mr. Begaye follows:]
Prepared Statement of Hon. Russell Begaye, President, Navajo Nation
Good morning Chairman Udall and members of the Committee.
My name is Russell Begaye. I am president of the Navajo Nation. I
want to thank the Committee, Chairman Barrasso, Senator McCain, and
Senator Udall for holding this field hearing on an important matter
that affects all of Indian Country.
The Navajo Nation has been entrusted with the protection of
funerary objects, sacred objects and objects of cultural patrimony
since the beginning of time. As president of the Navajo Nation, I take
this responsibility very seriously.
This is not just my responsibility as president of the Navajo
Nation. I am humbled to share the sacred responsibility with our past
leaders, our cultural teachers, and the medicine people who lead our
ceremonies and our sacred prayers. We believe that through their
practice and use of some of our sacred objects, they restore balance,
health, and spirituality and bring us together as a community. These
objects are also central to the identity of the Navajo people. They are
critical to our future as a people. They are as important as our
language, as important as the four sacred Navajo mountains and as
important as this land that we have lived on since time immemorial.
Past leaders and traditional healers have worked tirelessly behind
the scenes for decades for the return of our cultural patrimony. They
have raised awareness of the importance of these issues to the world.
We have a responsibility to them to continue the protection of our
identity.
The United States government, Native American cultural and
political leaders and the academic world have introduced many pieces of
landmark legislation in the past hundred years to provide protections
for not only the benefit of the Navajo Nation, but for Indian Country
as a whole. We are thankful for these efforts. From time to time, we
must revisit these cultural protection laws based on current world
events, changing technological times and add protections that were
unseen at the time these laws were enacted.
We are here to improve upon the body of cultural resource
protection law, domestically and internationally.
As president of the Navajo Nation, I am in full support of federal
and legislative measures that address the illegal sale and trafficking
of Native American cultural patrimony. We thank lawmakers and
administration officials for their leadership and support on these
matters. We look forward to the Government Accountability Office's
report on how the federal government currently investigates the theft
and sale of tribal items and what reforms can be made to further
prevent this practice in the future that will begin in early 2017.
Before cultural resource protection laws were enacted, thousands of
objects of cultural patrimony were taken, stolen and sold by people who
had no right to sell them to European traders, collectors, museums and
academic institutions. We recognize that the Western European concept
of art, archeology, anthropology and government encompasses a view of
cultural patrimony as objects to be studied and admired for
intellectual gain. There are professors who have spent their entire
careers studying us and entire departments devoted toward teaching
other students about us.
However, these objects of cultural patrimony are not like the
Western European concept of icons and statuaries that are found in your
churches, displayed in your museums or sold at auction or traded on the
black market. These sacred objects are not to be studied, hung on walls
to be admired or cataloged and placed in storage bins in annexes across
the world. They were and are constructed to maintain our sacredness and
the wholeness of our people. Without them, we are not a whole people.
We believe this contributes to the societal problems that we have
experienced and endured since they left the four sacred mountains. The
levels of our current societal ills were never seen until these
cultural objects have left our presence. With each return of cultural
items that belong to the Navajo people, we believe they restore our
balance. They restore our harmony.
In addition, museum curators, scientists and collectors do not have
the inherent knowledge to care for them in a sacred way. Only medicine
people know how to care for these objects in a sacred way and to use
them in the way they were meant to be used, in our ceremonies to help
restore balance and heal our people. In some cases, they are returned
to nature within our four sacred mountains in a way known only to our
medicine people.
It is unfortunate that we as a sovereign tribal nation face
difficulty in utilizing current U.S. laws to protect our sacred objects
and remains within the jurisdiction of international states. As such,
we request Congress and the federal government to join together
diplomatically and through passage of legislation to enhance protection
and repatriation of our human remains, funerary objects, sacred objects
and objects of cultural patrimony. These laws must have timelines,
unambiguous definitions, defined roles and teeth to enforce their
compliance.
The Navajo Nation has firsthand experience in repatriation of our
sacred Navajo masks from an auction house in Paris France. While we
were successful in the return of these living and breathing beings, it
was a difficult endeavor mainly because France does not provide the
legal protections and repatriation for these objects. The French people
and their government also did not understand our view that these
objects are sacred and were not created to hang on walls or in museums
as art. France equates our interest in return of these objects as a
religious issue, however they do not also take it into consideration
that they are part of the identity of our people to exist. Other
nations likely take a similar view. As such, we must educate all about
these issues--not just the French people but also the European Union
and other nations harboring our sacred objects and objects of cultural
patrimony.
Our sacred artifacts and cultural items are an important part of
the Navajo culture and beliefs. They provide us a sense of who we are
and provide us sustenance for our physical, emotional and spiritual
well being. This is why we consider these important in protecting and
we will continue to work to protect these items and their rightful
return to us.
We commend the House and Senate for passing the PROTECT Patrimony
Resolution, H. Con. Res. 122. We look forward to the House passing the
amended concurrent resolution that will ultimately send a powerful
international message by our lawmakers about the importance of
protecting Native American cultural patrimony.
We look forward to working with Congress and the administration to
enact current measures including the Safeguard Tribal Objects of
Patrimony Act, S. 3127, a bill to prohibit the exporting of sacred
Native American items and increase penalties for stealing and illegally
trafficking tribal cultural patrimony.
By passing these cultural protection laws, Congress will take
another step in making history in its endeavor to make the Navajo
Nation and all tribes across the country whole after experiencing the
erosion of their cultural identities. Congress has the opportunity to
contribute to our h centszh cents, the beauty way of our life. We urge
you to take advantage of this opportunity. The Navajo Nation and Indian
Country are grateful for your service and long-term vision and wisdom
on this matter. Thank you.
Senator Udall. Thank you very much, President Begaye. And
thank you also for sharing with us the objects, and what's
happened there, especially the Yei bi Chei ceremonial mask.
Thank you very much.
Please proceed, Dr. Schaaf.
STATEMENT OF GREGORY SCHAAF, Ph.D., HISTORIAN;
PROFESSOR OF NATIVE AMERICAN STUDIES, UNIVERSITY OF CALIFORNIA
(RETIRED)
Dr. Schaaf. My name is Dr. Gregory Schaaf. I am a retired
professor of Native American Studies from the University of
California. I have Ph.D. in American Indian Histories, a
separate degree in art history. I have served as a historian
for over 50 different Native American nations across this
country, including all 19 Pueblos.
I am retired from the National Council of the Smithsonian,
National Museum of the American Indian.
My wife and I, Angie, are the authors of 17,000 Native
American Artists Biogeographies.
I'm also the founder of--cofounder of Santa Fe's Indian Art
Collectors Circle, which have met over 100 months in a row, the
first Wednesday of each month, which invited collectors and
Native American artists to come together to do show-and-tell,
and each one would bring an item or two, and we would share our
knowledge about each item. We didn't allow any buying, selling,
or trading. But it helped many young Native American artists be
introduced directly to collectors, which helped them in their
careers as fine artists.
Also I served in the New Mexico Governor's Task Force for
Authenticity of Native American Art. And I am a specialist in
developing tribal archives, tribal libraries, tribal museums.
When Acoma Pueblo decided they wanted a museum, we dreamed
up the idea and how it was going to actually be created, in my
living room. So, I'm very honored to be here today with the
Governor of Acoma Pueblo, and the Governor of Isleta Pueblo,
and the leader of the Navajo Nation. It's truly a great honor
to be here.
I'm going to begin by revealing a secret. I have never
revealed this secret for 35 years, but I'm going to tell you
today. For 35 years I have been involved secretly in
negotiating the repatriation of hundreds and hundreds of Native
American sacred objects. My work was important that it be kept
secret.
I'm the one who's been involved behind the scenes
negotiating the return of the Acoma Shield. I had the deal in
place within two weeks. It was ready to happen. And then other
forces came into play, other people, other agencies got
involved, and now months have passed. I'm nervous, okay? I'm
nervous. The clock is ticking. I don't want this person who
consigned this Shield to withdraw his offer, okay? Because I
want you-all to know today, everyone in this room, he is
prepared to turn this Shield over today before the sun's down.
There's only one more step that has to take place, and I don't
want to embarrass anybody, so I'm not going to tell you what
that step is publicly. But privately, if you want to know, I
will tell you. And if you can use your power to make that
happen, that Shield will come home right away.
I'm also going to reveal another secret. This man who owns
this Shield, I don't know his name. I'm dealing through an
intermediary. I ask questions. He sends responses back. My
first question was, what does it take to make a deal?
In order to make these sacred objects come home, you have
to think from the perspective of other people from other
cultures. You have to think from the perspective of the
collector themselves. Why do they collect this? Who are they?
Are they good and honorable people? Are they dishonorable? Are
they thieves? Are they smugglers? Or is there a black market
going on? I mean, I read those Tony Hillerman novels. I know
that must be true. I read it in a book.
But, truthfully, I have known these collectors for a long
time, and most of them really are honorable people and they
want these things to be returned.
Now I'm going to reveal another secret, my second secret.
This man has told me that if all goes well, and this Shield is
returned home to Acoma Pueblo, this man is prepared to donate
his entire collection, 2,000 objects of important cultural
objects. They belong to many different pueblos, to the Navajo
Nation, to the Apaches, to other Native peoples in the
southwest. He's in his--he's very elderly, he's collected all
his life. I told him, I said, ``I bet your children hated that
collection, don't they?'' He said, ``How did you know? My kids
hate this stuff. They can't wait for me to die so they can send
it off to auction so that they can take it down to the pawnshop
and get rid of it, because instead of getting a new bicycle or
a new doll, mom and dad had to go down and get a new basket or
a pot or a shield, or something, and I didn't get what I
wanted, so the kids hate it.''
One of our big challenges is to try to attract the younger
generation of collectors. And I can tell you that if you
criminalize Native American art, if you create a punitive
approach to this, in certain ways, which I want to protect you
from doing, and you use a punitive action, these objects--
first, overnight, there will be a major black market created.
And number 2, these collectors that are honorable that
don't want to have their names and lives dragged through the
mud. They don't want to be charged with these huge felonies.
How can you stop them from building a big fire in their
fireplace and throwing the shield in, and shoveling the other
things in and destroying it? How can you stop them from going
on to the desert and digging up a big hole and throwing these
things there and destroying them forever?
That's the punitive approach, and that's what this club
symbolizes, because as I was negotiating for the return of the
Shield, we talked about the carrot and the stick approach.
The carrot and the stick approach are the amendments to
NAGPRA, which basically give a carrot, two years to return
these objects, and you're going to be home free. And the stick,
if you don't, this is what's going to happen to you. You're
going to get charged with a felony, you're going to be fined
hundreds of thousand of dollars, you could go to prison, okay?
These people will not allow that to happen. They're
lawyering up right now, as we speak.
My approach is to advocate the diplomatic approach, which
is symbolized by this wampum belt. When I first testified
before the United States Senate Select Committee, I was very
close to Senator Daniel Inouye. This is my testimony. I brought
you copies to take home with you.
And, at that time, the chiefs of the Iroquois Confederacy
made this wampum belt for me, their wives did. So it symbolizes
the diplomatic approach to the return of these objects. Who was
one of my great inspirations for this diplomatic approach?
Because we have a choice. We have the diplomatic approach,
which is the carrot and carrot approach, where everybody wins,
where everybody holds their head up high in dignity.
And we have the carrot and the stick approach, where all of
a sudden these people hide, or they destroy things. Who was one
of my great--some of my great inspirations to do this
diplomatic approach? Well, Senator, it was your mother and
father. And here's a picture that proves it. Here's a picture
of Senator Udall's mother and father dancing with the Indians
at the creation of the Institute of American Indian Arts,
demonstrating the power of a diplomatic approach. They
succeeded.
That is a great inspiration to me. I would like to
repatriate this to you, today. I will set it here and then we
will hand it to you.
Also to prove good faith, we are repatriating three boxes
of sacred objects today at this very moment. This box contains
sacred objects, which are over 100 to 150 years old. And this
goes back today to the Navajo Nation.
Mr. Begaye. Thank you.
Dr. Schaaf. This box contains objects from the Isleta
Pueblo Nation. And at this time, I'd like to return those to
the Isleta Nation. This box contains sacred objects from the
Acoma Nation, 100 to 150 years old. And at this time, I'd like
to return these objects and give them back to the Acoma Nation,
so that they might go home.
Why do I do that? I do that because we must lead by
example. We must not vilify the collectors. Embrace the
collectors, make friends, use kind and gentle words. Dance with
them around the circle. Invite them to meet with Native people.
Bring these people together, but if we do, and if we use this
diplomatic approach, I believe thousands and thousands of
objects will be returned, and if we don't, there's always the
club.
I'm willing to help all of your committees, all of the
Federal agencies. I'm willing to train at least one person
within each of the Native Nations the diplomatic approach.
I will also teach each Federal agency that wish--that's
involved in this, the DOJ, the State Department, the Bureau of
Indian Affairs, because those people that were up, they
wouldn't know a sacred object if it was sitting in front of
them. They've never seen them before. Just because they toured
our museum, doesn't mean they know. And there's no machine you
can plug in and say, ``Yup, that's a sacred object. Nope. That
one's not.''
Before you criminalize Native American art, please let me
help you, because if we do, these things will be returned, and
that's our goal.
Thank you very much.
[The prepared statement of Mr. Schaaf follows:]
Prepared Statement of Gregory Schaaf, Ph.D., Historian; Professor of
Native American Studies, University of California (Retired)
I. Introduction
For over 35 years, I have served as a tribal diplomat, helping to
repatriate many, many cultural items to Native American spiritual
leaders. I have provided this service at the request of respected
tribal elders. They have asked me to help negotiate privately the safe
return of sacred objects to their home tribal communities. My work has
been kept so secret; today is the first time I have been publicly
identified. In recent months, I have sought to facilitate the return of
the Acoma shield.
Tribal elders have entrusted me with these secret assignments,
because they grew to trust me after years of service as a tribal
historian. For decades, I have helped tribes build tribal libraries,
tribal archives, and tribal museums. I also have helped traditional
elders prepare statements for the United Nations and testimony for
international conferences. In 1983, I testified in behalf of the
Iroquois Confederacy before the United States Senate Select Committee
for Indian Affairs, then chaired by my late friend, Senator Daniel
Inouye. Our efforts resulted in a resolution being passed in the U.S.
Senate, 100-0, passed the House overwhelmingly, and signed by the
President, officially recognizing ``Iroquois Influences on the U.S.
Constitution.'' My testimony, published in this book, has been used in
Native American schools and major universities. The Spanish Edition was
paid for by the government of Mexico and distributed to Mexican judges
and politicians interested in amending the Constitution of Mexico. Our
Native American publications have attracted diverse groups of readers
around the world.
II. How can we best facilitate the safe return of these Native American
Sacred Items?
Answer. There are two primary approaches to repatriation: A.
``Punitive'' and B. ``Diplomatic.''
In my experience, there are two ways to address the return of
sacred items: first, the ``Punitive Approach,'' which could also be
called the ``Carrot and the Stick Approach''; or, second, the
``Diplomatic Approach,'' which could also be called the ``Carrot and
the Carrot Approach.'' In my estimation, the Diplomatic Approach is by
far the better path.
A. ``The Punitive Approach''
In my description of this approach, the ``Carrot'' is the ``Sacred
Object.'' The ``Sticks'' are laws that would criminalize ``possession,
sale, transfer and export'' of items considered ``sacred'' or ``objects
of cultural patrimony.'' In my professional opinion, I advise against
the ``Punitive Approach'' for the following reasons:
1. Out of fear some people, facing the threat of felonies,
jail terms, huge fines, legal fees, and public humiliation may
simply get rid of these items in whatever way possible,
including possibly their destruction. This is the worst fear of
tribal elders
2. ``Punitive Laws'' would create a black market for items not
destroyed. This is a major concern expressed by tribal elders.
3. ``Punitive Laws'' probably would be judged
``unconstitutionally vague.'' The public and the courts would
need to have a way to reasonably determine what is legal and
what is not. No scientific tests exist to determine what is
``sacred'' and what is not.
4. ``Punitive Laws'' would require illustrated lists defining
what is ``sacred'' and what is an ``object of cultural
patrimony.'' Tribal elders do not want to create illustrated
lists of sacred items.
Of course laws against theft should still stand as a deterrent.
B. ``The Diplomatic Approach''
In my description of this approach, the ``Carrot'' is the ``Sacred
Object,'' and the other ``Carrots'' are ways in which all parties
``win.'' This means everyone is respected and allowed to hold their
heads up high in dignity.
I support the ``Diplomatic Approach'' for the following reasons:
1. The time is right to encourage this approach because,
increasingly, many collectors, because of their love of these
objects and their appreciation of Native cultures, want to see
``sacred objects'' go back to Native American Spiritual Elders.
2. Diplomacy does not create a black market, but rather it
promotes transparency and open negotiations.
3. Diplomacy would not require law enforcement, related
expenses, and cases that would over burden the courts.
Diplomacy does not require illustrated lists. Diplomats trust
the tribal elders to identify what they would like returned.
I wish to underscore the importance of collectors for Native
American Nations and artists. Imagine what would happen, if collectors
decided to stop collecting. I am concerned about the future of Native
American artists. Instead of vilifying collectors, I believe we need to
do everything we can to attract a younger generation to be patrons of
Native Arts.
To help make the point that collectors are mostly kind-hearted
people, I have been given to understand that the current holder of the
Acoma shield wishes its safe return ``home'' to Acoma. I believe that
such a return, using the Diplomatic Approach, will lead to thousands of
additional objects, some sacred, some historic, some works of art,
coming back voluntarily to Native American Nations. Let's use the
diplomatic approach to facilitate the safe return of Native American
Sacred Items to their rightful, tribal caretakers.
Laws Under Consideration For Amendments
1. NAGPRA--The Native American Graves Protection Act
2. ARPA--The Archaeological Resource Protection Act
3. IACA--The Indian Arts and Crafts Act
Amendments to these laws, if not carefully written, could affect
other laws related to Inter-state and International Commerce, as well
as various treaties between the United States and foreign nations.
Serious Constitutional questions also could be raised. However, I do
have many good ideas for amending these laws in ways that will benefit
Native Americans and the general public.
Cost Analysis of Proposed Amendments
The ``Punitive Approach''--While initial costs may be minimal, the
potential long-term costs could easily become many millions of dollars
in annual appropriations. The actual cost of criminalizing Native
American art collecting will involve authorizations for personnel in
various federal agencies and special training of additional law
enforcement personnel. Additional costs would require appropriations
for law enforcement equipment, as well as travel, computer databases,
networking, and other investigative costs required in the ``Punitive
Approach.''
OR, if the ``Diplomatic Approach'' is chosen, the costs are
minimal, involving travel expenses, educational training, and some
legal consulting costs. If proponents of the ``Diplomatic Approach''
requested assistance from the public at large, donations could easily
cover all the costs of the ``Diplomatic Approach.'' In this best-case
scenario, the cost to the U.S. government and the U.S. taxpayers would
be ZERO.
Conclusion
In my professional opinion, the ``Diplomatic Approach'' is
preferable to the ``Punitive Approach.'' Let us revisit our purpose:
MAIN GOAL: To help facilitate the safe return of Native American
Sacred Items to their rightful, tribal caretakers.
I would encourage the Committee, as it deliberates on the most
effective legislation going forward, to not only embrace the Diplomatic
Approach, but to affirmatively engage the collecting community for its
input on how to strike an appropriate balance in the law in order to
facilitate the return of sacred objects.
supplemental testimony
At the end of my verbal testimony on October 18, 2016, before the
Senate Committee on Indian Affairs, I gave gifts to some of the
participants. To Senator Tom Udall, I gave him an original photograph,
signed by his father, Stewart Udall, depicting Tom's mother and father
dancing with Native Americans. I stated for the record that the
photograph symbolized the ``Diplomatic Approach'' to Indian Affairs. My
dear friend, the late Senator Daniel Inouye, former Chair of the Senate
Committee on Indian Affairs agreed that the ``Diplomatic Approach''
often is the best. He called it ``Quiet Diplomacy.''
The second present I gave to Senator Martin Heinrich: two of my
most recent books, ``American Indian Jewelry II'' and ``American Indian
Jewelry III,'' containing illustrated biographical profiles of over
5,000 Native American silversmiths and goldsmiths. I told Senator
Heinrich that these books symbolize all the Native People who are
served by the Committee. I believe it is important to never forget who
we are working for. . .the People.
Regarding the matter of how to best help Native American Spiritual
Leaders to get back ``Sacred Items,'' my 35 years of experience
confirms that ``Quiet Diplomacy'' is the best way. The late Mohawk
Chief Jake Swamp explained it simply: ``These are matters for the Peace
Chiefs, not the War Chiefs.''
The presents I gave the tribal leaders were beautiful, but commonly
shared items made by artists from their cultures. Governor Riley stated
that the Senate hearing was ``not the time or place'' to give the
gifts. I apologized. My intentions were all the best. I sought to lead
by example. I hoped to inspire others to give presents and ``sacred
objects'' to Native American people. In this regards, I was successful,
because people told me of their wishes to return items. Spiritual
leaders from two other Pueblos later hugged me and asked if I would
help them with the ``diplomatic approach.'' I also was given presents,
a tobacco pouch from a Native American woman and two silver pins, one
for me and one for my wife, Angie, from the Director of the Pueblo
Indian Cultural Center.
I believe in the natural goodness of people. Native American art
collectors and Native American elders are mostly kind and honorable
people. The relationships we share are precious and heart-felt. Most
people who are not collectors find these relationships hard to
understand. However, once you experience old-time, Pueblo hospitality
at a Feast Day, you are one step closer to learning why Native American
friends are among the best friends in the whole world. This is why I
wrote 17,000 Native American artist biographies. . .to help my friends
live honored lives as fine artists. Among my presents were textiles.
These symbolize traditional art forms in danger of dying out. For over
20 years, I promoted the ``Pueblo Indian Textile Revival Project.'' I
obtained century-old native cotton seeds from the Federal Seed Bank
along with traditional indigo and cochineal dyes. I bought a ton of
wool. I recorded biographical profiles for every past and present
Pueblo weavers. Then, I built a collection of Pueblo Textiles and
offered it free of charge for museum exhibitions. The first was for six
months at the Pueblo of Pojoaque Poeh Museum. The most recent was at
the Pueblo Indian Cultural Center, for two years, called ``Gathering
the Clouds.''
As part of my verbal testimony, I also held two Native American
objects: The first, a replica of the ``George Washington Wampum Belt,''
symbolizing the original promises exchanged over 200 years ago between
the Iroquois Six Nations and the United States of America. This belt
was made for me as a gift from the wife of the late Iroquois Chief Jake
Thomas. She explained the reason why she made this belt for me was so I
could ``remind White people what were the original promises made to
Indian people. . .Peace for as long as the Sun shines and the grass is
green and the rivers flow. . .'' What followed was a century of Indian
wars.
This wampum belt is a symbol of the ``Diplomatic Approach.''
I then raised over my head a replica of the wooden war club, given
to me as a present for helping the Lenni Lenape or Delaware Tribe
record their oral history, to develop a library, tribal archives and
tribal museum. One-by-one, the elders came forward, shook my, hand and
whispered in my ear, ``Thank you for helping us preserve our culture.''
For the purpose of the hearing, I raised an old style, Indian war
club, as a symbol of the ``Punitive Approach,'' also called the
``Carrot and the Stick.'' This war club further symbolizes the current
proposals to amend NAGPRA, ARPA, and other federal laws. While the war
club made a dramatic impact on the audience, getting my point across,
some saw the war club as offensive. My intent was not to offend, but to
present the harsh impact such laws could have on well intentioned, Non-
Indian collectors, as well as some Native American people caught up in
the fervor of internal disputes.
Who is going to enforce these new laws? ERO Special Response Teams,
Special Response Team Members of ICE, Immigration and Customs
Enforcement, Department of Homeland Security, as well as special
operation teams from the BIA, DOI, BLM, FBI and others. See their
training video: https://www.ice.gov/video/ero-special-response-team#
After the meeting, Governor Riley and I spoke privately about his
concern for my use of the replica war club. I apologized to him. I
should have told him in advance and received his approval to use the
war club as a symbol of the ``punitive approach.'' Governor Riley
explained that I should not have called the presents ``sacred.'' I
apologized. I only meant it in the way the Hopi say, ``Everything in
the whole world is sacred.'' The problem is that the proposed
``punitive'' law will make everything ``sacred'' illegal. Governor
Riley explained that no one could tell him what is ``sacred.'' He
explained that he is a ``practitioner'' and I am a ``student.'' In
response, I became humble and agreed with him. However, disagreements
will arise, if the present draft laws are enacted, over what is sacred
[illegal] and what is not [legal].
The main problem with the proposed ``punitive'' law is that it is
``impossible,'' as Governor Torres explained, and ``improper,'' as
Governor Riley pointed out, for anyone--except certain tribal members--
to tell what is ``sacred.'' This dilemma can be avoided through the
``Diplomatic Approach,'' is which we simply honor the requests of
Native American religious leaders.
In conclusion, I am very concerned about how the proposed
``punitive'' laws could seriously damage the Native American art world
and hurt Native American artists. Re-consider the title of this
hearing:
''The Theft, Illegal Possession, Sale, Transfer and Export of
Tribal Cultural Items.''
The false impression is that Native American art collectors are a
bunch of thieves and smugglers. In my lifetime experience, I have known
many thousands of collectors. Less than a tiny fraction of 1 percent
were thieves or smugglers. How can we recruit young collectors, if
collectors are portrayed as the ``bad guys?'' Why is this so important?
Good collectors are the key to keeping the Native American art world
alive. I estimate over 100,000 Native American artists are trying to
feed their families through the sale of the artwork. What will happen
to them if the collectors simply stop collecting? Native American
families will be hurt. Native American communities will become even
poorer.
ENDNOTE: Can you tell what is sacred and what is not?
Under the proposed law, American citizens not only are required to
know what is sacred, we also must know which objects are used presently
in a ``Native American religious ceremony or ritual.'' The main problem
is that Native American religious leaders do NOT want the public to
know about their private ceremonies and sacred objects. Furthermore,
Native American religious leaders do not want sacred objects to be
photographed, so any thought of having a guidebook to sacred objects is
absolutely forbidden. The thought of non-Indian law enforcement
touching, photographing, placing sacred objects in plastic bags,
holding these bags in locked evidence rooms, exposing them at press
conferences. . .All of this is strictly forbidden.
All of these serious problems are avoid by adopting the
``Diplomatic Approach'' over the ``Punitive Approach.''
Short Definition: Sacred Objects
Sacred Objects: Specific ceremonial objects which are needed by
traditional Native American religious leaders for the practice of
traditional Native American religions by their present day adherents.
SOURCE: 25 USC 3001 (3)(C).
Long Definition: Sacred Objects:
(3) Sacred objects means items that are specific ceremonial objects
needed by traditional Native American religious leaders for the
practice of traditional Native American religions by their present-day
adherents. While many items, from ancient pottery sherds to arrowheads,
might be imbued with sacredness in the eyes of an individual, these
regulations are specifically limited to objects that were devoted to a
traditional Native American religious ceremony or ritual and which have
religious significance or function in the continued observance or
renewal of such ceremony. The term traditional religious leader means a
person who is recognized by members of an Indian tribe or Native
Hawaiian organization as:
(i) Being responsible for performing cultural duties relating to
the ceremonial or religious traditions of that Indian tribe or Native
Hawaiian organization, or
(ii) Exercising a leadership role in an Indian tribe or Native
Hawaiian organization based on the tribe or organization's cultural,
ceremonial, or religious practices.
SOURCE: Title 43--Subtitle A--Part 10
PART 10-NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS
Senator Udall. Thank you very much, Dr. Schaaf. Really
appreciate it.
And now we will proceed with Ms. Honor Keeler's testimony.
STATEMENT OF HONOR KEELER, DIRECTOR, INTERNATIONAL REPATRIATION
PROJECT, ASSOCIATION ON AMERICAN
INDIAN AFFAIRS
Ms. Keeler. Thank you, Senator Udall, Senator Heinrich, and
the U.S. Senate Committee on Indian Affairs for requesting
testimony from the Association on American Indian Affairs.
My name is Honor Keeler. I am the founding Director of the
International Repatriation Project at the Association on
American Indian Affairs, and a citizen of Cherokee Nation.
The AAIA is a 94-year-old Indian advocacy organization,
which has long been engaged in sacred lands protection and
repatriation. And it helped to draft the National Museum of the
American Indian Act in 1989, and the Native American Graves
Protection and Repatriation Act of 1990.
In 2014, the AIA opened an international repatriation
office and dedicated full-time staff to this global indigenous
issue.
There are many important concerns that the AIA has heard
across Indian country at our Indigenous International
Repatriation Conferences in 2015 and 2016, regarding the
looting of Native American sacred and burial places, and the
sales, transfers, and exports of Native American ancestors,
funerary objects, sacred objects, and cultural patrimony from
tribal and traditional lands in the United States.
All are intricately linked to the global issue of
repatriation as a human rights issue, and the necessity to
investigate the private and international markets that may
involve criminal elements and intricate illegal trafficking
systems.
It is estimated that one million indigenous ancestors and
cultural items are located in auction houses, private
collections, and international repositories throughout the
world.
American Indian tribes through intertribal resolutions on
international repatriation have been passed by the National
Congress of the American Indians, the United South and Eastern
Tribes, the Intertribal Council of the Five Civilized Tribes,
and the All Pueblo Governors Council, stating that the movement
of our ancestors and cultural items from burial and sacred
places and outside of the country is a human rights issue, that
it is pervasive and that it violates tribal and traditional
customs and laws.
While current Federal laws, such as ARPA, the NMAI Act, and
the Native American Graves Protection and Repatriation Act have
helped to create a Federal process to prevent looting on
Federal and tribal lands, and to repatriate Native American
ancestors and cultural items from the Smithsonian Institution
and federally funded agencies and museums, these laws do not
address repatriation from private collections and international
markets.
In order to stop the looting of Native American sacred and
burial places, and repatriate indigenous ancestors and cultural
items back to their communities, the AAIA recommends the
following.
With regards to current Federal legislation and problems,
the U.S. Congress should, through meaningful consultation with
tribes; one, mandate centralized training across Federal
agencies for proper implementation and training of current
Federal laws, such as ARPA, NAGPRA, NHPA, NEPA, and U.S.
Customs to avoid undue burdens on tribes.
Two, call for a full investigation into implementation of
these laws and to reveal the extent of looting of Native
American sacred and burial places, as well as the full extent
of the paths through which these trafficking systems operate.
Three, call for a report to provide actionable steps for
Congress and agencies to take to identify funding and
appropriations gaps, as well as legislative gaps to be
addressed to prevent trafficking and ensure that repatriation
occurs from private and international collections.
Four, mandate that every agency, including the State
Department, develop a tribal consultation policy and fully
understand what meaningful consultations are.
And, five, establish a Federal landing page that serves as
a single source of information for Native Nations that includes
all current Federal contacts, relevant laws, and each agency's
current tribal consultation policies and information on
proposed developments that affect American Indian tribes.
The AIA also recommends that Congress do the following:
One, create funding and appropriations to establish intertribal
investigative units throughout the country.
Two, Enact NAGPRA amendments to notify Native nations of
missing and exchanged collections from the Smithsonian
Institution and federally funded institutions.
Three, establish a 30-day hold, at least, in U.S. Customs
for Native American ancestors and cultural items, so that
Customs may notify tribes and have meaningful consultations
over the held items to determine if it has been taken from a
burial or sacred place or from the tribe.
Four, ensure that Native Nations can represent themselves
at the UN, and other international forum, and are involved in
any planning processes to develop mechanisms for international
repatriation, including the development of databases so that
proper cultural protocols are put in place.
Many tribes do not want photographs of their ancestors and
cultural items displayed, as they are sacred or integral parts
to the exercise of their religious and cultural belief.
Five, mandate that the State Department create an office
and assign staff to assist over 567 tribes with their
International Repatriation efforts.
And, six, investigate entering into bilateral and
multilateral agreements with other countries concerning the
repatriation of Native American ancestors and cultural items.
The AAIA supports bipartisan efforts to stop the
trafficking of indigenous ancestors and cultural items, such as
the protect patrimony resolution. However--and the STOP Act.
However, we also advocate for the strengthening of current
Federal laws and increasing penalties in the ARPA and NAGPRA
laws.
In addition, we support efforts by Congress and the GAO and
other agencies to investigate the theft, illegal possession,
sale, transport, and export of the tribal cultural items, and
urge them to look into the issues tribes are facing in illicit
trafficking, and international repatriation that we have
explained here today and in our written testimony. We thank you
for your time and attention to these important matters, and
look forward to the future, in returning our ancestors and
cultural items home.
Thank you. I will take any questions.
Prepared Statement of Honor Keeler, Director, International
Repatriation Project, Association on American Indian Affairs
Thank you, Senator Udall, Senator Heinrich, and the U.S. Senate
Committee on Indian Affairs for requesting testimony from the
Association on American Indian Affair (AAIA). My name is Honor Keeler.
I am the founding Director of the International Repatriation Project at
the AAIA and a citizen of Cherokee Nation. The AAIA is a 94-year-old
Indian advocacy organization, which has long been engaged in sacred
lands protection and repatriation. It helped to draft the National
Museum of the American Indian Act \1\ of 1989 (NMAI Act) and the Native
American Graves Protection and Repatriation Act \2\ of 1990 (NAGPRA).
In 2014, the AAIA opened an International Repatriation Office and
dedicated full time staff to this global Indigenous issue.
---------------------------------------------------------------------------
\1\ National Museum of the American Indian Act, Pub. L. No. 101-
185, 103 Stat. 1336 (codified as amended at 20 U.S.C. 80q to 80q-15
(2006).
\2\ Native American Graves Protection and Repatriation Act, Pub. L.
No. 101-601, 104 Stat. 3048 (1990) (codified as amended at 25 U.S.C.
3001-3013 (2006) and 18 U.S.C. 1170 (2006).
---------------------------------------------------------------------------
There are many important concerns that the AAIA has heard across
Indian country and during our Indigenous International Repatriation
Conferences in 2015 and 2016, regarding the looting of Native American
sacred and burial places, and the sales, transfers, and exports of
Native American Ancestors, funerary objects, sacred objects and
cultural patrimony (``cultural items'') from tribal and traditional
lands and the United States. All are intricately linked to the global
issue of repatriation as a human rights issue and the necessity to
investigate the private and international markets that may involve
criminal elements and intricate illegal trafficking systems. It is
estimated that one million Indigenous Ancestors and cultural items are
located in auction houses, private collections, and international
repositories throughout the world. \3\
---------------------------------------------------------------------------
\3\ Resolution #SAC-12-008, Support for International Repatriation,
National Congress of American Indians (October 21-26, 2012). Resolution
No. 12-07, A Resolution on International Repatriation of the Five
Civilized Tribes, The Inter-Tribal Council of the Five Civilized
Tribes, October 12, 2012. Resolution #SD-15-074, Supporting the
International Repatriation Project of the Association on American
Indian Affairs (October, 2015). All Pueblo Governors Council
Resolutions Nos. 2015-12 and 2015-13 (2015).
---------------------------------------------------------------------------
American Indian tribes through Intertribal Resolutions on
International Repatriation have been passed by the National Congress of
American Indians (NCAI), the United South and Eastern Tribes (USET),
the Intertribal Council of the Five Civilized Tribes, and the All
Pueblo Governors Council, stating that the movement of our Ancestors
and cultural items from burial and sacred places and outside of the
country is a human rights issue, that it is pervasive, and that it
violates tribal and traditional customs and laws. \4\
---------------------------------------------------------------------------
\4\ Id.
---------------------------------------------------------------------------
While current federal laws, such as the Archaeological Resources
Protection Act (ARPA), \5\ the National Museum of the American Indian
Act (NMAI Act), and the Native American Graves Protection and
Repatriation Act (NAGPRA) have helped to create a federal process to
prevent looting on federal and tribal lands, and to repatriate Native
American Ancestors and cultural items from the Smithsonian Institution
and federally funded agencies and museums, these laws do not address
repatriation from private collections and international markets. In
order to stop the looting of Native American sacred and burial places,
and repatriate Indigenous Ancestors and cultural items back to their
communities, the (AAIA) recommends the following.
---------------------------------------------------------------------------
\5\ Archaeological Resources Protection Act, 16 U.S.C. 470 cc
(1979) (amended 1988).
---------------------------------------------------------------------------
With regard to current federal legislation and problems, the U.S.
Congress should, through meaningful consultations with tribes:
1. Mandate centralized training across federal agencies for
proper implementation and training of current federal laws,
such as ARPA, NAGPRA, NHPA, NEPA, and U.S. Customs to avoid
undue burdens on tribes;
2. Call for a full investigation into implementation of these
laws and to reveal the extent of looting of Native American
sacred and burial places, as well as the full extent of the
paths through which these trafficking systems operate;
3. Call for a report to provide actionable steps for Congress
and agencies to take to identify funding and appropriations
gaps, as well as legislative gaps to be addressed to prevent
trafficking and ensure that repatriation occurs from private
and international collections;
4. Mandate that every agency, including the State Department,
develop a ``Tribal Consultation Policy'' and fully understand
what ``meaningful consultations'' are; and
5. Establish a federal landing page that serves as a single
source of information for Native Nations that includes all
current federal contacts, relevant laws and each agency's
current tribal consultation policies, and information on
proposed developments that affect American Indian tribes.
American Indian tribes, Alaska Natives, and Native Hawaiians
involved in international repatriation are experiencing many
difficulties repatriating Ancestors and cultural items, including:
locating them in private and international repositories; refusals by
auction houses, collectors and international repositories to accept
historically documented proof, to consult, and to repatriate; an
excessive burden of proof to prove ownership of Ancestors and cultural
items, rather than requiring auction houses, collectors, and
repositories to produce documentation that the tribes have given free,
prior, and informed consent to sales; the length of time it takes to
repatriate internationally; and the failure of international courts,
museums, auction houses, and foreign governments to recognize tribal
courts and tribal laws, even though the United States, through its
trust responsibility, statutory interpretations, government-to-
government relationship, and political relationship with federally
recognized tribes should support tribal governments.
The AAIA also recommends that Congress do the following:
1. Create funding and appropriations to establish Intertribal
Investigative Units throughout the country;
2. Enact NAGPRA amendments to notify Native Nations of
``missing and exchanged'' collections from the Smithsonian
Institution and federally funded institutions;
3. Establish a 30-day hold in U.S. Customs for Native American
Ancestors and cultural items, so that Customs may notify tribes
and have meaningful consultations over the held item to
determine if it has been taken from a burial or sacred place or
from the tribe;
4. Ensure that Native Nations can represent themselves at the
U.N. and other international fora and are involved in any
planning processes to develop mechanisms for international
repatriation, including the development of databases, so that
proper cultural protocols are put in place. Many tribes do not
want photographs of their Ancestors and cultural items
displayed, as they are sacred or integral parts to the exercise
of their religious and cultural beliefs;
5. Mandate that the State Department create an office and
assign staff to assist over 567 tribes with their International
Repatriation efforts; and
6. Investigate entering into bilateral and multilateral
agreements with other countries concerning the repatriation of
Native American Ancestors and cultural items.
The Association on American Indian Affairs (AAIA) supports
bipartisan efforts to stop the trafficking of Indigenous Ancestors and
cultural items, such as H. Con. Res. 122 PROTECT Patrimony Resolution,
which was passed by the House and Senate only a few weeks ago, and has
been sent back to the House. However, we also advocate for the
strengthening of current federal laws and increasing penalties in the
NAGPRA and ARPA.
In addition, we support efforts by Congress and the General
Accounting Office to investigate the theft, illegal possession, sale,
transfer, and export of tribal cultural items, and urge them to look
into the issues tribes are facing in illicit trafficking and
international repatriation that we have explained here today and in our
written testimony further.
We thank you for your time and attention to these important
matters, and look forward to positive outcomes from Congress to assist
Native Nations in legislation and assistance to repatriate their Native
American ancestors and cultural items back home to their communities.
Thank you.
Senator Udall. Thank you, Ms. Keeler. And I thank all the
witnesses today for their testimony. Ms. Keeler, we're now
going into a questioning phase.
Ms. Keeler, I'd like to talk to you a little bit about the
United Nations. You have a lot of experience there in terms of
their interactions, and it's my understanding that the United
Nations meets to discuss international repatriation, but
oftentimes these meetings take place in New York, Geneva, or
someplace else in the world without very much notice.
It's clearly impossible for tribes in New Mexico or others
across the United States to be in attendance or to keep tabs on
the discussion.
In your opinion, what steps might the United States take to
support tribes in representing themselves in international
repatriation issues?
Ms. Keeler. I think it's very important, Senators, to
ensure that Native Nations have that opportunity as indigenous
governments to represent themselves at the UN. Particularly, in
the UN permanent forum on indigenous issues, UNMREP, UNESCO,
LIPO, and other representative branches of the UN.
Yes, there has been a problem with adequate notice provided
to indigenous peoples for meetings that occur on important
issues, such as international repatriation.
And we encourage the United States to get behind tribes and
ensure that they can represent themselves at those meetings.
And also so that there is adequate notice so that they can
prepare and go to these meetings.
I'd also suggest that there be some kind of fund set up to
help tribes to get to the UN to represent themselves.
Senator Udall. Thank you very much.
And, Dr. Schaaf, we really appreciate your testimony here
today as an art collector and historian. You've talked about
the carrot and the stick, and you did it very graphically here.
And I agree with you that art dealers and collectors should be
partners on this issue.
In regards to the carrot-and-stick approach, you've also
indicated in your testimony there's a black market out there.
So, in addition to carrot-and-stick, what would you suggest be
utilized in order to tackle the black market situation that's
going on?
Dr. Schaaf. I think that the carrot and the stick approach
is the last resort. I think the carrot and the carrot approach
is the first approach. In this approach, the person who owns or
is the caretaker of a particular object, can come out of it
holding their head up high in dignity. It's very important to
them.
Secondly, it's a carrot--in terms of the American tribes or
spiritual society, because they get their things back.
It's also important that the auction house gets a carrot,
that they don't come out looking like the bad buy. It's like
their villains, like they're engaged in some kind of black
market. And there's a way that that can happen.
Also, each Federal agency that gets involved, they also
need carrots. All of them need carrots, so if everybody can
win, it's win, win, win.
Now, in regards to a black market, I've been collecting
Native American art since I was 5. I'm 63. That's over half a
century. I can tell you for a fact that I haven't really seen
too much of the existence of a black market.
I made a reference to a black market because if you
criminalize some aspects of Native American art collecting, it
will create a black market instantly.
Now, when we were negotiating regarding the return of the
Shield, one of things that the Acoma elders was very adamant
about was they didn't want to foster a black market regarding
this auction. And I told them that an auction really isn't a
black market. It's the opposite. There's a public spotlight.
It's online.
I have a computer system which sends me a notice every time
a particular key word appears which relates to important Native
American cultural items. I get an e-mail.
Other times, I get a phone call from one of the spiritual
elders or members of societies, or their children from these
Pueblos or Native Nations. They call me up and they say, ``Dr.
Schaaf, this is coming online. This is going to get sold. Is
there anything you can do?''
In the case of the Shield, I thought Walter Amberg
Foundation was going to come in and save the day, okay? Like
they did with the Hopis. But the Walter--because they
appropriated a million dollars and they only used 500,000. But
this didn't happen. Now we had to do a different approach. Now,
this black market (made unreportable utterance), okay, well, I
can tell you that they're really--in all of the early years of
collecting, there wasn't per se a black market. ARPA was
created to STOP people from going into Federal lands,
especially Mesa Verde and Chaco Canyon, and digging stuff up
out of the ground.
When I was there in 1990, as a quasi-historian for the
Senate's Committee for Indian Affairs with Senator Inouye, when
ARPA--when NAGPRA was created, the Native American Grave
Protection Act, the underscore was ``grave.'' What were we
trying to do? We were trying to get the Smithsonian to return
the tens of thousands of skeletons that they had in their
closets, and they wouldn't give them back.
And there were--when in--in my university, the University
of California, the joke was that there were more dead Indians
in the basement and skeletons than there were live Indians that
they recruited.
And when we would ask them, ``Could you return these
objects, because when it says, 'rest in peace,' we consider
that a human right.''
And they would say--these archeologists would say ``No, we
own this. We own these things. You don't own it. And we're not
giving them back.'' So, in order to get them to give it back,
we approached it through NAGPRA, the Native American Grave
Protection Act.
I remember the day when those guys came in and added those
three words, ``Objects that are sacred, ceremonial, and objects
of cultural patrimony,'' and I said, ``Oh, you guys are opening
a can of worms.''
And they said, ``What do you mean?'' I said, ``Sacred.
What's sacred and what's not.'' And, you know, ``Can you prove
one way or another that an object is sacred, and, therefore,
illegal? And then you're going to go to prison for all of these
years?''
So they really fought against me, to be honest. And finally
I said, ``How about--I worked for the Hopis for all these years
as a historian, how about if I call them and ask them, what is
sacred and what is not? You define it. Will you accept their
opinion?''
They said, ``Well, that's pretty good. Okay. You go for
it.''
I called up the Hopi elders, one of the kiva leaders that I
had worked for for all of these years, and I asked him,
``Tonight in the kiva, would you ask the guys what's sacred and
what's not?''
The next day I got a phone call. ``Man, we stayed up until
late in the night talking about it, but we got the answer for
you. I'm going to tell you right now. We decided that the whole
world is sacred, every blade of glass, every leaf, every river,
every mountain, every object in the whole world is sacred.''
Yet, at the same time, nothing is so sacred that the clowns
can't make fun of it.
Now, we're faced with a law, in which everything is legal
and yet everything is illegal. Get my point?
Now, what about ceremonial? That used to be there, and then
that got pushed aside, because what about moccasins and drums?
Are you going to put all the moccasin makers out of business,
all the drum makers out of business?
What about shields? Shields really weren't on the radar
screen until a year ago. Before that, shields weren't really
addressed. And there are shields--all you have to do is go to
Gathering of Nations, and there's hundreds of Native Americans
dancing with shields. Are those all illegal?
And let me tell you, when those guys that were here before,
that ICE guy, man, let me tell you, when you give that guy that
club, okay, that's what happened two years ago when they gave
the club to the Serbias Action Project, okay? Did you ever hear
of Serbias Action? Well, you should know about it, because two
years ago, they gave that to the Bureau of Land Management.
Those guys got a SWAT team. They brought a hundred guys into
these area collectors, and what's the result? Three dead on the
ground. This is serious stuff.
Senator Udall. Thank you. Thank you, Dr. Schaaf, really
appreciate it.
President Begaye, it's my understanding you've floated an
idea where the Department of Homeland Security should hold an
object that they believe is important to cultural patrimony,
and adequately consult with the tribes. Can you describe how
this would benefit the Navajo Nation and the rest of Indian
Country?
Mr. Begaye. It would greatly benefit us, because before
passing these on into international market, we need to be
consulted on the sacredness of these objects. We understand the
difference between art and those things that can be used for
deport. But sacred items are different. In this case, we're
talking about what the--with art dealing with the Paris auction
house, the Yei bi Chei mask. We sent a medicine man out there
to authenticate. The seven, five of them were masks that were
used in ceremonies. The most sacred of the Navajo ceremony, the
Yei bi Chei mask.
And so, one--the owner would not reveal himself. And if
they want to do it peacefully, then come out. Come out in the
open and say, I am from Japan, I'm from China, I'm from France,
I'm from New York, and here's an object that I want to put on
the auction block. Native American, can you come and see if
this is a sacred object? And we would go there and talk to that
individual and reason with him.
But, no, in our case, from 2015, when we retrieved the
seven masks, from that point, to 2016 spring, it increased--the
value that we were being asked for increased 2,000 percent.
And, so, some of these that are out there, are
unreasonable. They are just out for profit. And how do we go
after those people that knowing that we paid ``X'' amount of
dollars in 2015, now they increase it by 2,000 percent? And,
so, there are those that are like that. And I don't know if
that will be labeled black market. But if the Homeland Security
can make sure that these objects, sacred objects, Native
American objects, before they are taken outside of the country,
would be looked at, we would be consulted. Let us have a word.
Let us have a say over these objects, and let us determine
through our medicine people whether these are sacred or not.
But when it leaves the country, like we did with the
country of France, we asked them for help, the government, we
asked them to step in, because we knew that these were sacred
objects that was about to go on the auction block. But they
said, because your laws, United States government laws, do not
address these issues, then we cannot do that. We cannot come
alongside Navajo Nation and help you repatriate these items.
And, so, again we asked different lawmakers, different
governments, but nobody could come alongside us, because we
didn't have the laws in place.
And that's why we are supporting STOP Act, the Protect Act,
we appreciate that effort, because there are people out there
that will refuse to deal with us as Indian Nation in returning
these sacred objects.
And, so, to me, the word I use was bribery. You guys are
trying to bribe us. We know, you know, and the sellers know how
much we paid in 2015, and now you're increasing it by 2,000
percent. And that is pure criminal act. It's a bribe. And we
need to deal with some of these people that way.
And, so, if a person was reasonable he would say, you know,
we know how much you guys paid a year ago. And we're willing to
give these objects back to you at the same price or just donate
back to the Navajo Nation.
They would have said that, but, no, they increased it by
2,000 percent. And, to me, that's a bribe.
And, so, again, we appreciate the efforts of the United
States Congress to put laws in place that will say to people
out there, ``Don't take Native American objects out of the
United States before you consult with the Native American
people, like Navajo Nation, especially if they're ceremonial
key--they're ceremonial objects.
And so we can define that. We can say, yes, this is art.
Yes, it was used at Gathering of the Nations. Yes, it was used
at the song and dance.
But this particular one, is used for ceremonial purposes,
for healing, or to restore harmony. And those are the ones that
we want to remain--that we want protected. And that's all we're
asking for. Thank you.
Senator Udall. Thank you very much, President Begaye.
And so I'm going to now--because we are running late here,
I want to make sure we try to keep our schedule that we
announced, we'll go to Senator Heinrich for his questions at
this point.
Senator Heinrich. Governor Riley, do members of your pueblo
rely on the sale of art items for their income?
Mr. Riley. Thank you, Senator, for the question. Yes, there
are a number of individuals from the Pueblo, who, as a
profession, are artists. And, so, they do earn a livelihood by
the products that they produce for commerce.
Senator Heinrich. Is there any prohibition in Federal law
against selling or purchasing those items?
Mr. Riley. None whatsoever.
Senator Heinrich. Would you consider the Acoma Shield to be
an art, Native American art item?
Mr. Riley. I would definitely not. There are objects that
are created for a specific purpose within pueblo society. In
particular Acoma, the Shield had its place within our
ceremonial calendar. And as such, it is not a piece of art.
There are numerous examples that other tribes have
presented, including when Congressman Pearce and I talked at
the Museum of the Native American.
There's a California tribe that said it very well. These
items are given life, and as such we treat them as a living
being. And there are differences in, I guess, perspectives.
Not to really point fingers at Professor Schaaf, but there
are differences. He asks us, as Native Americans, to think like
a collector. I, in turn, ask him to think as a Native American.
These items that he bestowed upon us, I'm grateful for these
items. He called them sacred. I don't know what's contained in
these boxes. If they are, in fact, sacred, they should not be
re-presented to the tribe in such a disrespectful manner. I
think the Pueblo leadership would all agree with me. If they
are not then, he, himself, with all of his degrees, have
mislabeled them.
And that's one position that Native Americans have strongly
stated at almost every hearing that I've been at. Only we can
determine what is sacred. The professor is not a practitioner
of Native culture. He studies Native culture. I, myself, am a
practitioner. There's a huge difference between being a
practitioner and being a student.
So, I guess that's a long-winded answer, but I really
wanted to drive home that point. I don't know what's contained
in these boxes. I cannot say for Navajo Nation, for the Pueblo
of Isleta, whether or not these items are sacred. It's up to
each individual tribe to determine that fact.
Senator Heinrich. Mr. Torres.
Dr. Schaaf. If I could just--30 seconds.
Senator Heinrich. I'm going to continue with my line of
questioning, and we'll get to you in a moment.
Governor Torres, the item of pottery that you mentioned
that you purchased back for $1,200, was that an item of art, or
was that an item of cultural patrimony? Would it be the kind of
item that your members would simply create and sell on the
market to--for artist income?
Mr. Torres. Thank you for the question, Senator.
This ceremonial bowl that was located and purchased, and
brought back to us, has been used for centuries, and I could
see that--I should have brought it. You can see the wear marks
on it. And the traditional people and leaders who saw it, they
recognized it right away.
And, you know, like I said earlier, if we would have--if
Isleta would have went over there and demanded it or went about
it in a different way, a red flag would have went up, and we
would have never seen it again, because there's money involved.
Everything is about money. Everything, you know. If there's
money attached to something, if somebody has money invested in
it, I guess, is what I'm trying to say, even though it was
stolen from a house, you know, it was sold, somebody paid for
it, and then now it's for sale.
So, when things--objects, sacred objects like this are
found in certain places, you got to figure out a way to get
them without putting up that red flag. Because if you don't,
it's going to disappear, and you'll never see it again. And you
had that opportunity to get it, well, you can't put a price to
these sacred objects. You don't do that. We don't do that. We
don't put prices to it.
I don't know what's in this box. And I'm also a traditional
leader at Isleta Pueblo, but if I saw what's in this box, I
probably still won't know what it is. It has to go to the right
people. When I take this to my people, I will get the
traditional leaders. I will have a gathering and we'll see
what's in there, and see what it is.
Like governor Riley says, you don't know if it's sacred or
not. I don't. I'm not going to know. If some of the other
traditional leaders know, then they will tell me. But every
society has their own things that they use in ceremonials.
It's kind of tough to answer a lot of questions. All
pueblos are different. Ceremonials are different. Navajo Nation
have different ceremonials. So, you know, there's so many, it's
tough to address. A lot of things we can't disclose also.
Senator Heinrich. I understand. Dr. Schaaf, who owns the
Acoma Shield?
Dr. Schaaf. I don't know. It appears the circumstances,
there was----
Senator Heinrich. If you don't have the circumstances, I
don't--Governor Riley, who owns the Acoma Shield?
Dr. Schaaf. Oh, the Acoma Pueblo owns the Shield. Who has
possession of it at this time is a different thing.
Senator Heinrich. And I thank you, Senator Heinrich, for
that question. As I said before, I think it's time for the
antique dealers and the collectors to think that way. That
Shield belongs to the Pueblo of Acoma. Inherently, it belongs
to us.
Senator Udall. Having no additional questions, let me just
thank each member of this panel. We really appreciate your time
and your effort, and your travels here to participate in this.
Senators, just so Senator Heinrich and all of our staff know,
we're allowed to submit follow-up written questions for the
record. We hope if you get any of those, that you will respond
quickly, so we will have the information and proceed on other
fronts.
The hearing record will be open for two weeks. And I want
to thank the witnesses for their time and testimony.
As I said earlier, the staff members, there's an e-mail
that the Committee can be contacted through, and at this point,
the hearing's going to be adjourned, but I also want to have an
announcement after the hearing's adjourned, so I want your
attention here.
So, the hearing is now adjourned, and I will call forward
Governor Yepa to give a closing prayer.
[Whereupon, at 12:30 p.m. the hearing was concluded.)
A P P E N D I X
Prepared Statement of John Molloy, President, Antique Tribal Art
Dealers Association, \1\
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\1\ The Antique Tribal Art Dealers Association, ATADA, is a
professional organization 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 across the U.S., dedicated to the promotion, study
and exhibition of Native American history and culture. www.atada.org.
email [email protected], PO Box 45628, Rio Rancho, NM 87174.
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The Safeguard Tribal Objects of Patrimony Act of 2016 is unlikely
to achieve its primary goal, the return of important cultural objects
to Native American tribes and Native Hawaiian organizations. If
enacted, the STOP Act would instead create dangerous legal
uncertainties for private owners of a wide range of American Indian art
and artifacts, violate the 5th Amendment due process clause of the U.S.
Constitution, generate consumer confusion that would damage legitimate
art dealers and tribal artisans, and create a bureaucratic nightmare
for the tribes.
Summary
It is the position of the tribes that they, and no one else, should
determine which cultural objects are inalienable from their
communities. This is a legitimate position, and intrinsic to tribal
sovereignty. At the same time, many tribes believe strongly that
photographs, identifying characteristics, and descriptions of
ceremonial objects cannot be disclosed to persons who do not have the
right and authority to know about such sacred matters, not even to all
tribal members. Therefore, tribes refuse to make information public
that would enable an outsider or unauthorized person to know whether he
or she possesses a ceremonial object considered inalienable to the
tribe.
It is also the tribes' position that although non-tribal members
may have some knowledge of Indian culture, that knowledge is not
complete. So, while certain examples of cultural objects such as masks
may be generally acknowledged as ceremonial items, others are not. Some
objects deemed ceremonial to a tribe are very similar to non-ceremonial
objects, and may include commonly traded objects such as ceramics.
Knowledge regarding these items is also considered inappropriate to
make public.
Tribal secrecy may be well-justified as necessary for the health
and well-being of the tribe. However, the lack of specific, public
information about what makes a cultural object inalienable--when it may
have entered the stream of commerce decades or even a hundred years
before--is a legal barrier to the exercise of due process and to the
return of many sacred objects.
This information gap would certainly be an issue in the enforcement
of the STOP Act, if it is enacted. The U.S. legal system is premised on
the idea that a citizen must have fair notice of our laws. As our
Supreme Court has stated, ``[A] statute which either forbids or
requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law.'' \2\
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\2\ Connally v. General Constr. Co., 269 U. S. 385, 391, 46 S. Ct.
126, 70 L. Ed. 322 (1926).
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The items that tribes most urgently seek to repatriate from non-
tribal possessors are ceremonial objects and objects of cultural
patrimony that tribes claim as inalienable tribal property. \3\ These
objects are claimed regardless of the geographic and time limitations
and grandfathering-in of older, non-tribal private collections under
the 1979 Archeological Resources Protection Act (ARPA), \4\ and the
1990 Native American Graves Protection and Repatriation Act (NAGPRA).
\5\ Sacred items are also precisely the objects that many tribes say it
is impossible to identify or discuss according to established tribal
customary law. Therefore, notice of what items are claimed by the
tribes cannot be given to non-tribal owners. The lack of fair warning
means that a criminal prosecution or forfeiture of property would be
based upon information that cannot be disclosed, which would be a clear
violation of due process of law. The STOP Act therefore cannot legally
achieve its primary goal of returning to the tribes the items they most
seek.
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\3\ Native American Graves Protection and Repatriation Act, 25
U.S.C. 3001-3013, Nov. 16, 1990, 3001(3)(c-d).
\4\ Archaeological Resources Protection Act of 1979, 16 U.S.C.
470aa-mm; Congressional findings and declaration of purpose,
470aa(b), ``(b) The purpose of this chapter is to secure, for the
present and future benefit of the American people, the protection of
archaeological resources and sites which are on public lands and Indian
lands, and to foster increased cooperation and exchange of information
between governmental authorities, the professional archaeological
community, and private individuals having collections of archaeological
resources and data which were obtained before October 31, 1979,'' and
16 U.S.C. 470ee, Prohibited acts and criminal penalties. Prospective
application. ``(f) Nothing in subsection (b)(1) of this section shall
be deemed applicable to any person with respect to an archaeological
resource which was in the lawful possession of such person prior to the
date of the enactment of this Act.''
\5\ Native American Graves Protection and Repatriation Act, 25
U.S.C. 3001-3013 and 18 U.S.C. 1170, Nov. 16, 1990.
---------------------------------------------------------------------------
While a failure to provide for due process, which is discussed in
greater detail below, is a fatal flaw, the STOP Act has other serious
weaknesses. The STOP Act is unnecessary because export for sale of
unlawfully acquired artifacts is already illegal; ARPA specifically
penalizes trafficking in unlawfully acquired objects in interstate and
foreign commerce \6\ and NAGPRA has criminal penalties for unlawful
transportation and sale \7\ and enables civil claims for sacred and
communally owned artifacts.
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\6\ 16 U.S.C. 470ee, Prohibited acts and criminal penalties.
Trafficking in interstate or foreign commerce in archaeological
resources the excavation, removal, sale, purchase, exchange,
transportation or receipt of which was wrongful under State or local
law, ``(c) No person may sell, purchase, exchange, transport, receive,
or offer to sell, purchase, or exchange, in interstate or foreign
commerce, any archaeological resource excavated, removed, sold,
purchased, exchanged, transported, or received in violation of any
provision, rule, regulation, ordinance, or permit in effect under State
or local law.''
\7\ 18 U.S.C. 1170.
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The STOP Act creates no framework for administration or enforcement
of tribal claims. It does not provide for management of cultural
objects, or have a permitting system for objects deemed lawful to
export, or provide funding. It does not provide a standard for
identification of items of cultural patrimony--for example, a list or
database of ceremonial items. It does not set forth standards of
evidence for tribal claimants or means of appeal for the owners of
disputed objects.
The STOP Act is grossly overbroad as a result of adopting multiple
definitions of a ``cultural object'' from other laws that serve
completely different purposes. As discussed below in greater detail,
the STOP Act defines a ``cultural object'' by combining definitions
from three existing U.S. statutes: ARPA, NAGPRA, and18 USC 1866(b).
The definition of a ``cultural object'' under these statues include a
wide variety of non-ceremonial objects that tribes have not expressed
any interest in repatriating.
For example, under NAGPRA, human remains and sacred items are
cultural items that the tribes feel are essential for repatriation.
However, some museums routinely deem very common objects that are
widely traded without objection from tribes to be ``unassociated
funerary objects'' under NAGPRA. \8\ Under ARPA, virtually everything
made by humans over 100 years old is covered by the term
``archaeological resource'', \9\ but only the age and original location
of an object makes it lawful or unlawful to own. Sacred associations
are irrelevant. Claims under ARPA would be especially difficult to
succeed in, since the original location of the majority of cultural
objects in circulation is unknown. These multiple definitions expand
the STOP Act's reach far beyond the ceremonial objects whose return is
important to the tribes.
---------------------------------------------------------------------------
\8\ See, for example, the 2007 NAGPRA repatriation of 10,857
cultural items in the control of the Burke Museum: Federal Register:
May 24, 2007, Volume 72, Number 100, Notices, Page 29174-29177, From
the Federal Register Online via GPO Access, wais.access.gpo.gov,
DOCID:fr24my07-88.
\9\ 16 U.S.C. 470bb(1).
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A grant of short term immunity to anyone who ``repatriates'' an
unlawfully obtained cultural object to the ``appropriate'' Indian tribe
or Native Hawaiian organization, is one of the most insidious elements
of the STOP Act. Since the original provenance of most cultural items
is unknown, the non-tribal owner is stuck between a rock and a hard
place. He can ``repatriate'' what might be a lawful object, losing his
investment and taking the chance that he has given it to the right
tribe, or he can hold on to it, possibly risking a later arrest or
claim from a tribe. The unavoidable uncertainty about the status of
artifacts, not knowledge of unlawful origins, is what most worries
collectors and the art trade.
The STOP Act not only threatens art dealers and collectors with
prosecution without having had notice of wrongdoing--the legal
uncertainty surrounding Native American cultural objects is likely to
cause serious economic damage. It will taint both the antique and
contemporary Indian art markets, which are major contributors to local
economies and irreplaceable sources of income to tribal artisans,
particularly in the American West. The total Indian art trade is
estimated to be valued between $400-800 million a year. The annual
Santa Fe Indian Art Market brings over 170,000 tourists to New Mexico a
year. The city of Santa Fe estimates that the market brings in 120
million each year in hotel and restaurant revenue alone. Native
artisans, many of whom rely on the Indian Art Market for as much as
half their yearly income, are also concerned that such a vague law will
``taint'' the entire American Indian art market in the eyes of the
public.
Background on the distribution and circulation of Native American
artifacts
There are millions of Native American ``cultural objects'' in
private ownership today; many have no ownership history, or
``provenance.'' Many objects have circulated for decades in the
marketplace, or even for the last 140 years. For most of the 140 years
in which there has been an active trade in Indian artifacts, provenance
and ownership history had no legal or practical effect on the market.
In the last 25 years, awareness of tribal concerns and the harmful
destruction of archaeological sites has changed everything. Today, a
``good'' provenance can make the difference between a valuable object
and one of little worth, or that cannot be sold at all.
The best records of early collections of Native American cultural
objects are from museum sources. Harvard's Peabody Museum expeditions
included the Hemenway Southwestern Archaeological Expedition (1886-
1894), which brought thousands of Zuni and Hopi artifacts from Arizona
and New Mexico. In 1892, the leader of the Hemenway Expedition paid the
trader Thomas Keam $10,000 for a huge collection that included over
3000 ceramics. \10\ The materials in the collection were either bought
by Keam and his assistant Alexander Stephen from Hopi or found in
explorations of abandoned Hopi towns. Smaller, but still very
substantial collections were also made by Keam for the Berlin
Ethnological Museum, The Field Museum in Chicago, and the National
Museum of Finland. Keam also sold widely from his trading post to
collectors and tourists from across the United States. \11\ The
materials collected by Keam and sold to the Peabody Museum were sourced
from ``throughout Arizona, the San Juan region of the southern confines
of Colorado and Utah. They were exhumed from burial places, sacrificial
caverns, ruins and from sand dunes in the localities of ancient
gardens.'' \12\ During the same years and throughout the early 20th
century, private collectors purchased from the same sources that
supplied museum collectors.
---------------------------------------------------------------------------
\10\ Edwin Wade et al., America's Great Lost Expedition: The Thomas
Keam Collection of Hopi Pottery from the Second Hemenway Expedition,
1890-1894, p 9, Harvard, Cambridge (1980) (See also pages 18, 25, 26,
39) and Edwin Wade et al., Historic Hopi Ceramics, 84 Harvard,
Cambridge (1981).
\11\ Edwin Wade et al., America's Great Lost Expedition: The Thomas
Keam Collection of Hopi Pottery from the Second Hemenway Expedition,
1890-1894, p 2, Harvard, Cambridge (1980).
\12\ Id. at 15.
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Thus, tens of thousands of cultural objects entered the stream of
commerce decades before the first U.S. cultural property legislation
was enacted, the American Antiquities Act of 1906 (Antiquities Act).
\13\ Experts such as the Reverend Dr. Henry Baum testified regarding
the enormous numbers of artifacts that had entered the market at
Congressional hearings on the Antiquities Act. \14\ Department
Archeologist and Superintendent of Mesa Verde National Park Jesse L.
Nusbaum, writing in 1929, called the 1880s and 1890s ``the heyday of
the commercial pothunter.'' \15\
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\13\ American Antiquities Act of 1906, 16 U.S.C. $$431-433, 34
Stat. L. 225. The Antiquities Act of 1906 was held to be
unconstitutionally vague and legally unenforceable in the Ninth
Circuit, which includes Arizona, where Navajo, Hopi and Zuni lands are
located. U.S. v. Diaz, 499 F.2d 113, 114 (9th Cir. 1974). The Diaz
decision, coupled with a rise in illicit excavations on public and
Indian lands in the 1970s, prompted new legislation to protect
archaeological resources, ARPA. H.R. REP. 96-311, *8, 1979 U.S.C.C.A.N.
1709, **1710.
\14\ Hearing of the Subcommittee of the Committee on Public Lands
of the United States Senate, 58th Cong., 2d Sess., 14 (1904), testimony
of Reverend Dr. Henry Baum.
\15\ Annual Report of Jesse L. Nusbaum, Department Archeologist and
Superintendent of Mesa Verde National Park, to the Secretary of the
Interior for Fiscal Year Ended June 30,1929 6-7.
---------------------------------------------------------------------------
Artifacts without provenience were dug up and sold to good faith
purchasers long after enactment of the Antiquities Act in 1906.
Superintendent Nusbaum reported when seeking funding for putting signs
prohibiting looting on ancient ruins, a task barely begun in 1929:
``I may add, the majority of tourists are potential
pothunters. The few scattered settlers of that period are
replaced by the thousands of motorists and visitors today, many
of whom are potential pothunters. . . Several years ago. .
.warning signs were posted on and in the vicinity of some of
the more important ruins. . . To the average visitor, only
ruins so posted are the property of the United States and
protected by the act of June 8, 1906. . .'' \16\
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\16\ Id. at V, 6-7.
Regrettably, the U.S. government is directly responsible for the
loss of numerous sacred and ceremonial objects to the tribes. In 1883,
Secretary of the Interior Henry Teller issued rules establishing Courts
of Indian Offenses that prohibited Native American ceremonial activity
under pain of imprisonment. Teller ordered Indian agents to compel
medicine men to discontinue their practices and prohibited anyone less
than 50 years old from being present at feasts and dances. Missionaries
also encouraged the destruction of paraphernalia used in tribal
religious celebrations. At various times in the early 20th C, Native
Christian groups encouraged people to destroy relics. It was only in
1978 that the American Indian Religious Freedom Act gave native
religions the same rights given to others in the U.S.
Today, the sources of cultural objects in the market and in private
collections vary greatly. While many objects were taken from tribes by
the U.S. government, or sold after individuals adopted Christianity,
others were sold in the 1960s-1980s, when Indian ceremonial objects
were avidly collected by non- Indians who admired Native American
social and environmental perspectives, or who responded to the
aesthetic and creative qualities of Indian objects. Indian artifacts
were sold (with or without permission of the community) because of the
increasing economic values of tribal artifacts and the comparative
poverty of many tribal communities.
In the last twenty or thirty years, attitudes have changed very
much among art collectors, museums, and the general public. There is
increased respect for both the sovereign rights of tribal communities
and the importance of retaining sacred objects for the health of these
communities. Most recently, there is a commitment on the part of art
dealers and organizations such as ATADA, the Antique Tribal Art Dealers
Association, to work directly with tribal representatives to find
solutions that truly serve Native American interests.
Congress Intended Private Collections to Remain a Resource for
Preservation and Study of Native American Culture
Art traders and the collecting community have been accused in the
media of exploiting Indian culture, especially in light of recent Paris
auction sales that were deeply offensive to tribal communities. But it
should be remembered that the vast majority of the trade in Indian
artifacts is completely legal, and that Congress deliberately excluded
pre-existing privately held collections of artifacts from ARPA's
prohibition on trafficking, in part because they formed a valuable
resource for academic study. ARPA's Findings and Purpose states:
''The purpose of this chapter is to secure, for the present
and future benefit of the American people, the protection of
archaeological resources and sites which are on public lands
and Indian lands, and to foster increased cooperation and
exchange of information between governmental authorities, the
professional archaeological community, and private individuals
having collections of archaeological resources and data which
were obtained before October 31, 1979.'' \17\
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\17\ 16 U.S.C. 470aa(b). ARPA's legislative history reinforces
this policy:
``The Committee is concerned that greater efforts must be
undertaken by the Secretary and professional archaeologists to
involve to the fullest extent possible non-professional
individuals with existing collections or with an interest in
archaeology. The potential benefit of this increased
cooperation is enormous; there is a wealth of archaeological
information in the hands of private individuals that could
greatly expand the archaeological data base on this country.''
---------------------------------------------------------------------------
\18\
\18\ H.R. REP. 96-311, *12,1979 US.CC.A.N. 1709, **1714
---------------------------------------------------------------------------
Only objects excavated subsequent to 1979 or unlawfully possessed
prior to 1979 are impacted by ARPA. Congress expressly intended private
collections to serve as open resources:
``Nothing in subsection (b)(1) of this section shall be deemed
applicable to any person with respect to an archaeological
resource which was in the lawful possession of such person
prior to October 31,1979.'' \19\
---------------------------------------------------------------------------
\19\ 16 U.S.C 470ee(f).
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Definitions of Cultural Objects Under the STOP Act Are Too Broad and Do
Not Prioritize the Cultural Objects Most Desired by the Tribes
The STOP Act penalizes export of any Native American cultural
object obtained in violation of NAGPRA, 18 USC 1170, ARPA, or 18 USC
1866(b).
The STOP Act defines a cultural object as fitting one of three
categories:
(1) ``cultural items as described in NAGPRA, 25 USC 3001'' \20\
---------------------------------------------------------------------------
\20\ ``cultural items'' means human remains and--(A) ``associated
funerary objects'' which shall mean objects that, as a part of the
death rite or ceremony of a culture, are reasonably believed to have
been placed with individual human remains either at the time of death
or later, and both the human remains and associated funerary objects
are presently in the possession or control of a Federal agency or
museum, except that other items exclusively made for burial purposes or
to contain human remains shall be considered as associated funerary
objects. (B) ``unassociated funerary objects'' which shall mean objects
that, as a part of the death rite or ceremony of a culture, are
reasonably believed to have been placed with individual human remains
either at the time of death or later, where the remains are not in the
possession or control of the Federal agency or museum and the objects
can be identified by a preponderance of the evidence as related to
specific individuals or families or to known human remains or, by a
preponderance of the evidence, as having been removed from a specific
burial site of an individual culturally affiliated with a particular
Indian tribe, (C) ``sacred objects'' which shall mean specific
ceremonial objects which are needed by traditional Native American
religious leaders for the practice of traditional Native American
religions by their present day adherents, and (D) ``cultural
patrimony'' which shall mean an object having ongoing historical,
traditional, or cultural importance central to the Native American
group or culture itself, rather than property owned by an individual
Native American, and which, therefore, cannot be alienated,
appropriated, or conveyed by any individual regardless of whether or
not the individual is a member of the Indian tribe or Native Hawaiian
organization and such object shall have been considered inalienable by
such Native American group at the time the object was separated from
such group. 25 USC 3001(3)((3).
---------------------------------------------------------------------------
(2) An ``archeological resource as defined under section 3 of
ARPA, 470bb(1)'' \21\
---------------------------------------------------------------------------
\21\ ``(1) The term ``archaeological resource'' means any material
remains of past human life or activities which are of archaeological
interest, as determined under uniform regulations promulgated pursuant
to this chapter. Such regulations containing such determination shall
include, but not be limited to: pottery, basketry, bottles, weapons,
weapon projectiles, tools, structures or portions of structures, pit
houses, rock paintings, rock carvings, intaglios, graves, human
skeletal materials, or any portion or piece of any of the foregoing
items. Nonfossilized and fossilized paleontological specimens, or any
portion or piece thereof, shall not be considered archaeological
resources, under the regulations under this paragraph, unless found in
archaeological context. No item shall be treated as an archaeological
resource under regulations under this paragraph unless such item is at
least 100 years of age.'' 16 U.S.C. 470aa-mm, section 470bb(1).
---------------------------------------------------------------------------
(3) And an ``object of antiquity protected under section
1866(b).'' \22\
\22\ ``(b). . .any historic or prehistoric ruin or monument or any
other object of antiquity that is situated on land owned or controlled
by the Federal Government without the permission of the head of the
Federal agency having jurisdiction over the land on which the object is
situated. . .'' 18 U.S.C. 1866(b).
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The combined definitions under these statutes encompass virtually
every object made by human hands. Since the vast majority of Native
American cultural objects have little or no ownership history, there is
enormous potential for confusion about what is lawful and what is
unlawful to own, trade, or export.
Some supporters of the STOP Act have said that only ``serious''
violations of the law would actually be prosecuted and this broader
category of objects would not be affected. However, as Scalia and
Garner have explained, ``Ordinarily, judges apply text-specific
definitions with rigor.'' \23\ It is not a valid defense of flawed
legislation to say, as some supporters Act have, that a law will only
be selectively enforced.
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\23\ Scalia and Garner, Reading Law: The Interpretation of Legal
Texts 36 at 225-233, (Thompson/West 2012).
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There is no denying the fact that the STOP Act requires
repatriation to federally recognized tribes of a vast number of
cultural objects that the tribes don't appear to want back in the first
place. Tribal members have stated in public fora that their tribes want
a much smaller and more limited number of items back. \24\ A number of
tribal representatives have also stated that only the tribes can
determine whether an object is ceremonial. \25\ If more limited
repatriation of essential objects, based upon tribal criteria alone, is
what the tribes want, then the only proper legislation is legislation
that supports those goals--not the STOP Act.
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\24\ This point was made by Acoma Pueblo's Jonathan Sims and and
Navajo Cultural Specialist Timothy Begay, speaking at the panel,
Private Auction Houses & Repatriation, at the Indigenous International
Repatriation Conference: Shifting the Burden held at Isleta Pueblo,
September 26-27, 2016, under the auspices of the Association on
American Indian Affairs (AAIA).
\25\ Id.
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NAGPRA Does Not Provide Adequate Guidance to Determine Status of an
Artifact
The tribes' experience with NAGPRA illustrates the poor results
that follow on inconsistent definitions and standards. Twenty-six years
after its enactment, there are still no standard criteria under NAGPRA
among museums that could provide guidance to the public about what
should be repatriated. Even more importantly, museums and tribes often
do not agree on which items in museum collections are subject to
repatriation to tribes under NAGPRA. After 26 years, there is no
publicly accessible list of items in the category of ceremonial objects
under NAGPRA for each of the 567 federally recognized tribes to provide
private citizens with guidance regarding which cultural objects are
subject to claims for repatriation.
Only about one-third of human remains in U.S. museums, which are
unquestionably subject to repatriation, have been repatriated to
tribes. An even higher percentage of objects of material culture,
whether for ceremonial or for ordinary usage, remains in museum
collections and has not yet been cataloged for purposes of NAGPRA.
Although many museums have worked diligently to set standards for
repatriation--and although museums have significant institutional,
academic and scientific resources, there is still not agreement even
among museums regarding the types of objects subject to repatriation
claims under NAGPRA.
Federal agencies have not begun to investigate the number of human
remains or cultural objects that were exported from the U.S. with
permits issued under the American Antiquities Act, but whose permits
enabled the U.S. to request their return. \26\ Yet if the STOP act is
enacted, the Federal Government will expect U.S. citizens, who rarely
have any records pertaining to cultural objects in their private
collections (and which almost never contain human remains, as do museum
collections), to independently determine what should be returned to
tribal communities. If federal agencies have not started a process for
repatriation based upon existing, written agreements with foreign
institutions, why should private citizens be obligated to an even
higher standard regarding cultural objects without known provenance?
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\26\ Melanie O'Brien, Program Manager, National NAGPRA Program,
U.S. National Park Service, personal communication and at the panel,
Federal Tools in International Repatriation, at the Indigenous
International Repatriation Conference, Isleta Pueblo, September 27,
2016.
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Tribes May be the Best Judges, But in Many Cases, Tribes Are Not
Willing to Make Public Their Criteria for Identifying Sacred or
Ceremonial Objects
One response to questions about the process for the public to
determine what objects would be subject to repatriation has been that
it would be best to ``ask the tribes,'' and the ``tribes intend to set
up a hotline.'' \27\ On its surface, this seems a direct and reasonable
proposal. However, when one remembers that there are hundreds of
thousands of Native American objects in private circulation at any one
time, and there are 567 federally recognized tribes, then such a
solution has obvious flaws. Who is the average American going to call?
---------------------------------------------------------------------------
\27\ Ann Rogers, Esq., made this suggestion when speaking at CLE
International Visual Arts & the Law Conference, Santa Fe, NM, July 28-
29, 2016.
---------------------------------------------------------------------------
Although a few (mostly northeastern U.S.) tribes have created lists
of items that they wish repatriated, most feel it is not appropriate to
do so. Many southwestern U.S. tribes, including the Acoma, Laguna,
Hopi, and Navajo, have stated that they will not reveal such
information: the only persons who are permitted to have such knowledge
are those within the tribal community with specific religious authority
to possess it. It is their right and their choice to withhold
information that is not proper to share with outsiders. It is improper,
however, for Congress to give the tribes (or anyone else) a pass on the
fair notice that due process requires. The drafters of the STOP Act
should have realized that delegating authority to the tribes would
require not just due process, but also transparency or ``sunshine''
requirements under federal law.
Further, the STOP Act covers far more than ceremonial objects.
Tribal decision-makers are no better able than a private citizen is to
determine whether or not an item without provenance came from federal
or Indian lands, or when, over the last 140 years, it was removed. The
STOP Act does not address how tribes and federal agencies would split
the authority to deal with objects deemed unlawful to export under
ARPA's time-and-place based criteria.
A 2-Year Grant of Immunity from Prosecution Will Frighten Collectors,
Harm Museums and Substantially Burden the Tribes, Without
Bringing Important Objects Home
The STOP Act's 2-year ``amnesty'' window for the return of
``unlawful'' tribal cultural objects by private collectors implies that
possession of all cultural objects is unlawful. Its effect is coercive
and threatening. The STOP Act's immunity from prosecution provision
could easily result in consumer confusion and cause unwarranted returns
of thousands of lawfully owned objects to tribes which do not want
them. Collectors may be pressured to give up objects simply out of an
abundance of caution. Alternatively, the STOP Act's lack of clear
criteria or of any process for repatriation could result in virtually
no returns at all.
Regardless of the practical effect, by directing current owners to
repatriate ``all of the Native American cultural objects (as defined in
section 1171(a)) in the possession of the person'' to ``the appropriate
Indian tribe or Native Hawaiian organization,'' the STOP Act clearly
makes Native tribes and organizations the arbiters of what is lawful or
unlawful and which tribe is an ``appropriate tribe'' to return objects
to. This would impermissibly subject non-tribal U.S. citizens to tribal
jurisdiction and grant extra-territorial authority over U.S. citizens
to the tribes.
By broadly including the definitions of cultural objects under ARPA
and NAGPRA within the STOP Act, by imposing implicit obligations on the
public as well as museums to return cultural objects, and by failing to
establish basic evidentiary standards for claimant tribes, the STOP Act
sweeps away constitutional and legislative protections for
grandfathered objects under ARPA and NAGPRA, and departs from Congress'
intent to preserve scientific and academic access for the public
benefit through private collections of Native American cultural
objects.
The STOP appears to require a de facto reversal of the burden of
proof from the government to a private owner to show that an object is
lawfully held, exported or otherwise transferred. A private owner
generally does not know when and where an object was originally
acquired, does not have tribally-held secret knowledge regarding the
ceremonial character of an object, and cannot reasonably be expected in
many cases, even to know which tribe is the ``proper'' tribe to return
it to.
An allegation by the government that an owner failed to timely
repatriate a cultural object to the proper tribe would impermissibly
shift the burden of proof to a defendant's detriment and sanction a per
se violation of his or her due process rights.
The Stop Act Would Violate the Fifth Amendment Due Process Clause of
the U.S. Constitution
Under the circumstances described above, one can only conclude that
S. 3127/H. 5854 could not be implemented without raising legal
challenges for denial of due process to U.S. citizens in possession of
cultural objects potentially subject to forfeiture. Due process
requires fair notice of conduct that is forbidden or required. If a
non-tribal U.S. citizen owner of a cultural objects has no notice that
a particular object is claimed, then due process is not met. If a
cultural object is claimed as an inalienable object by a tribe that
deliberately withholds information on how sacred objects can be
identified, then due process is not met. \28\
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\28\ In U.S. v. Tidwell, 191 F.3d 976 (9th Cir. 1999), the Ninth
Circuit Court of Appeals held that NAGPRA was not unconstitutionally
vague in defining ``cultural patrimony'' which may not be stolen and
traded, and that a knowledgeable dealer in the specific circumstances
of that case had adequate notice of its prohibitions. However, the
range of objects claimed as ceremonial now claimed by certain tribes is
unprecedented, and a dealer could not be expected to have knowledge as
to which objects acquired prior to passage of NAGPRA could be deemed
inalienable, much less a private owner. ``The court [in U.S. v. Corrow,
119 F.3d 796, (10th Cir. 1997)] acknowledged conflicting opinions,
between orthodox and moderate Navajo religious views, regarding the
alienability of these particular adornments.'' ``Validity,
Construction, and Applicability of Native American Graves Protection
and Repatriation Act (25 U.S.C.A. 3001-3013 and 18 U.S.C.A.
1170)'' Deborah F. Buckman, J.D., 173 A.L.R. Fed. 765 (originally
published 2001).
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The U.S. Supreme Court held in Federal Communications Comm'n v. Fox
Television Stations, Inc., \29\ that due process requires ``fair
notice'' of applicable regulations. In so doing, the Court observed,
``A fundamental principle in our legal system is that laws which
regulate persons or entities must give fair notice of conduct that is
forbidden or required.'' The Supreme Court held in Papachristou
v.Jacksonville, ``Living under a rule of law entails various
suppositions, one of which is that '[all persons] are entitled to be
informed as to what the State commands or forbids.'' \30\
---------------------------------------------------------------------------
\29\ Federal Communications Comm'n v. Fox Television Stations,
Inc., 132 S. Ct. 2307, 2012 U.S. LEXIS 4661 (June 21, 2012). In that
case, the Supreme Court held that because the FCC failed to give Fox
Television Stations or ABC, Inc. fair notice that fleeting expletives
and momentary nudity could be found to be actionably indecent, the
FCC's standards as applied to these broadcasts were vague.
\30\ Papachristou v.Jacksonville, 405 U. S. 156, 162, 92 S. Ct.
839, 31 L. Ed. 2d 110 (1972) (quoting Lanzetta v. New Jersey, 306 U.S.
451, 453, 453 S. Ct. 618, 83 L. Ed. 888 (1939).
---------------------------------------------------------------------------
This requirement of clarity in regulation is essential to the
protections provided by the Due Process Clause of the Fifth Amendment.
\31\ It requires the invalidation of laws that are impermissibly vague.
A conviction or punishment fails to comply with due process if the
statute or regulation under which it is obtained ``fails to provide a
person of ordinary intelligence fair notice of what is prohibited, or
is so standardless that it authorizes or encourages seriously
discriminatory enforcement.'' \32\ As the Supreme Court has explained,
a regulation is not vague because it may at times be difficult to prove
an incriminating fact but rather because it is unclear as to what fact
must be proved. \33\
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\31\ See United States v.Williams, 553 U. S. 285, 304, 128 S. Ct.
1830, 170 L. Ed. 2d 650 (2008).
\32\ Ibid.
\33\ See id., at 306, 128 S. Ct. 1830, 170 L. Ed. 2d 650.
---------------------------------------------------------------------------
The void for vagueness doctrine addresses at least two connected
but discrete due process concerns: first, that regulated parties should
know what is required of them so they may act accordingly; second,
precision and guidance are necessary so that those enforcing the law do
not act in an arbitrary or discriminatory way. \34\
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\34\ See Grayned v. City of Rockford, 408 U. S. 104, 108-109, 92 S.
Ct. 2294, 33 L. Ed. 2d 222 (1972).
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This requirement for fair notice is deeply embedded in the history
of the common law, a fine and early example being Blackstone's
criticism of Caligula ``who (according to Dio Cassius) wrote his laws
in a very small character, and hung them up on high pillars, the more
effectively to ensnare the people.'' \35\ The STOP Act unquestionably
falls short of the mandate for fair notice and clarity in the law.
---------------------------------------------------------------------------
\35\ Quoted in United States v. Burgess, 1987 U.S. Dist. LEXIS
11227 (N.D. Ill. Dec. 1, 1987)
---------------------------------------------------------------------------
Before cultural objects may be forfeited, whether under the STOP
Act or other U.S. domestic cultural property legislation, the
government must show that fair notice was given and the requirements of
due process were met. This simply may not be possible, given the lack
of criteria for determining the ceremonial nature of an object
belonging to any one of 567 federally recognized tribes and absence of
provenance for almost all Native American cultural objects in
circulation.
It has been suggested that a 30-day Customs hold be placed on
Native American Ancestors and cultural items prior to export. \36\ Such
a proposal raises, with respect to ``cultural objects'' the same issues
of fair notice and due process.
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\36\ Written Testimony submitted on October 18, 2016 to the U.S.
Senate Committee on Indian Affairs by Ms. Honor Keeler, Director of the
International Repatriation Project of the Association on American
Indian Affairs.
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Before objects may be forfeited, the government must establish that
they are:
(1) types of objects designated as inalienable ceremonial
cultural objects subject to export restrictions, or
(2) unlawfully removed federal or Indian lands after NAGPRA or
ARPA went into force.
Again, the public's inability to access information on what exactly
constitutes a cultural object would cause the STOP Act to fail. Due
process would be offended because an exporter could not be given fair
notice of the conduct that is forbidden or required before his property
could be seized and be subject to forfeiture.
Evidentiary Issues
Evidentiary issues inevitably arise when key information about what
makes a ceremonial object inalienable is deliberately withheld. In
order to prevail in a prosecution, the government must establish some
nexus between the property to be forfeited and the forbidden activity
defined by the statute. \37\ For example, it would be expected that the
government would use expert testimony to identify the original site of
an unprovenanced object on federal or Indian land, or the approximate
date in which it was removed. \38\
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\37\ United States v. $506,231 in United States Currency, 125 F.3d
442, 451-52 (7th Cir. 1997).
\38\ See United States v. 328 ``Quintales'' of Green Coffee Beans,
21 F. Supp. 3d 122, 129 (D. P.R. 2013) (government's and claimant's
experts contest origin of coffee beans); United States v. One
Tyrannosaurs Bataar Skeleton, 2012 U.S. Dist. LEXIS 165153*4 (S.D.N.Y.
November 14, 2012) (government uses expert testimony to establish that
Bataar skeleton almost certainly came from the Nemegt Formation in
Mongolia and was most likely excavated between 1995 and 2005); Three
Burmese Statues, 2008 U.S. Dist. LEXIS 48474*7 (government's experts
identify statues as Burmese); United States v. Eighteenth Century
Peruvian Oil on Canvass, 597 F. Supp. 2d 618, 623 (E.D. Va. 2009) (CPIA
case; government experts state painting originated in Peru).
---------------------------------------------------------------------------
Similarly, in a prosecution for failure to timely repatriate a
sacred or ceremonial object, the government would be required to
provide expert testimony to establish that an object was sacred or
ceremonial in nature--but many tribes insist that this knowledge remain
secret. In any trial resulting from the STOP Act, the fact that certain
tribes decline to share information on ceremonial and inalienable
objects would result in the government's inability to provide fact
witnesses who could clearly explain the rationale for the detention and
seizure of private property, which would be fatal to the government's
case.
Tribes have stated that only they have the true knowledge regarding
ceremonial objects. Nonetheless, the Federal Rule of Evidence 702
governs the issue of the standards for admission of expert testimony
for every federal trial. \39\ The proponent must establish the
admissibility of testimony by a preponderance of the evidence standard.
The Judge, acting as gatekeeper, must keep in mind two overarching but
competing goals. \40\ ``First, Rule 702 was intended to liberalize the
introduction of relevant expert testimony and thus encourages courts to
rely on vigorous cross-examination and contrary evidence to
counterbalance expert opinions of uncertain veracity. .
.Simultaneously, however, a trial court must mind the high potential
for expert opinions to mislead, rather than enlighten, the jury.''
``Qualified'' experts ``must have `knowledge, skill experience,
training or education' in the subject area. . .'' \41\ Even where an
expert is qualified, however, his underlying methodology must also
satisfy Rule 702, i.e. that methodology must satisfy a two prong test
for (1) reliability and (2) relevance. \42\ Certainly, tribes could
provide knowledgeable experts, but expert testimony would be subject to
challenge and crossexamination that might reveal information tribes are
unwilling to make public.
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\39\ Foster v. Legal Sea Foods, Inc., 2008 U.S. Dist. LEXIS
57117*25-28, at 25(D. Md. 2008) (Blake, J.).
\40\ Id.
\41\ Id.
\42\ Id.
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French law
Finally, there is a serious weakness in the STOP Act supporters'
arguments that a U.S. law prohibiting export would not only be
recognized in France, but would require French authorities to halt
auctions and return items to the U.S. and to the tribes. France is a
signatory of the 1970 UNESCO Convention, \43\ but France's ratification
of UNESCO 1970 has not prevented it from being a major market center in
Europe for ancient, antique, ethnographic and tribal art.
---------------------------------------------------------------------------
\43\ France ratified the 1970 UNESCO Convention on the Means of
Prohibiting and Preventing the Illicit Import, Export and Transfer of
Ownership of Cultural Property on January 7, 1997.
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To provide a single example, the most important ethnographic and
tribal art fair in the world, the Parcours des Mondes, \44\ is held
every year in September, in St. Germain des Pres, Paris. This year,
eighty art dealers came to the fair from around the world, and artworks
from Africa, Oceania, Asia, and South and ``Indigenous America'' were
displayed. The catalog of exhibitors showed, among many other objects
from countries with laws prohibiting export, pre-Columbian works from
Mexico, an Amazonian shrunken head, and a wide variety of African and
Southeast Asian sculptures. No art dealers were stopped at the border,
and no one's art was detained or forfeited.
---------------------------------------------------------------------------
\44\ http://www.parcours-des-mondes.com/index.php?lang=en
---------------------------------------------------------------------------
The existence or lack of an ``export law'' is not the issue; it is
a filing of an actual claim of theft. The key event which resulted in
the withdrawal of the disputed Acoma shield from auction in Paris took
place in New Mexico. An affidavit was filed in federal district court
by a family member who identified the shield as having been stolen from
the family home many years before. This specific claim of ownership
made all the difference in France, and is likely to result in the
object's return.
It is hoped that tribes will take steps to strengthen their hand in
future claims. Tribes are presently considering enacting internal
tribal legislation that establishes title to cultural objects under
codified tribal law, and delegating authority to tribal authorities to
make claims as they feel it is appropriate. Some form of internal
documentation that tribes consider suitable for themselves would likely
be more effective than any ``export law,'' since France and several
other European countries have not yet implemented international
treaties such as UNESCO into practice, even after several decades.
Recommendations for future action
1. The U.S. government should clean its own house prior to placing
unreasonable burdens on private citizens. The U.S. government should
locate and seek repatriation of cultural objects under permitting
agreements with foreign museums executed after the 1906 Antiquities
Act. \45\
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\45\ Some permitting agreements under the 1906 Antiquities Act with
foreign museums and institutions vested permanent ownership in cultural
objects in the U.S., and returns of cultural objects could be demanded,
but has not yet been sought, according to a presentation by Melanie
O'Brien, Program Manager, National NAGPRA Program, U.S. National Park
Service, at the panel, Federal Tools in International Repatriation,
Indigenous International Repatriation Conference, Isleta Pueblo,
September 26-27, 2016.
---------------------------------------------------------------------------
2. A thorough and accurate study of the Indian art market should be
undertaken in order to define the scope and scale of problems any
proposed law is to address. Despite public statements by some
supporters of the STOP Act that important tribal cultural objects are
currently at risk of looting and that significant traffic in stolen
objects continues, this is emphatically not the experience of
contemporary traders in Native American art. On the contrary, most art
dealers and collectors are better educated about and far more sensitive
to tribal concerns than ever before.
3. Due process should be assured--not obscured--by clearly setting
forth the regulatory process and administrative structure for
implementation of any proposed law. Any law must have provisions for
fair notice that adequately inform the American public of what
constitutes a violation of law, and what steps must be taken to stay
within the law.
4. The costs to the American taxpayer, to local governments, and to
tribes should be clearly identified, with respect to loss of tax and
tourism revenue and the costs of regulatory systems and activities
before considering passage of the STOP Act.
5. There must be good faith, effective consultation with all
federally recognized tribes, since all are covered by the proposed
legislation, to ensure that legislation accurately reflects the goals
of the tribes and honors tribal sovereignty.
6. There must be adequate funding to establish and sustain the
administrative structure envisioned by any proposed legislation.
ATADA believes it is crucial to honor Native American traditions,
to ensure the health and vitality of tribal communities, and to respect
the tribes' sovereign rights. We also believe it is important to
preserve the due process rights of U.S. citizens and to promote the
trade in Native American arts that sustains many tribal and non-tribal
communities in the American West. The STOP Act is an ill-conceived law
that will achieve neither goal.
ATADA is working diligently to meet with tribal officials and to
work directly together to craft more realistic and effective solutions
that bring us together in mutual respect and understanding. We are
committed to learning from the tribes and pursuing a path that meets
their primary goal of repatriation of key ceremonial objects as well as
maintaining a legitimate trade, academic access, and preservation of
the tangible history of the First Americans.
______
Prepared Statement of Hon. Myron Armijo, Governor, Pueblo of Santa Ana
Thank you for coming to New Mexico to discuss this important issue
that affects all tribes in our state, including the Pueblo of Santa
Ana. In the early 1980s, the Pueblo of Santa Ana suffered a massive
tragedy of the theft of many sacred and cultural items from the family
homes of our people, including the home of my own family. Our family
homes are located in the old village, a location that was established
in the 1500s and which is closed off to the public for most of the
year. Thieves broke into these homes at the old village, where our
Pueblo was originally located, and stole sacred items and items of
cultural patrimony from many, many families.
The thieves crossed the river near our Pueblo and hid our sacred
items underneath a large juniper and would later return to their hiding
place to retrieve the items to sell to willing buyers. These thefts
were happening sporadically for years and through several
Administrations. Many nights, tribal sheriffs including the Governor
would keep the Pueblo under surveillance in hopes of apprehending the
thieves. One day the individuals perpetrating these acts were finally
apprehended. My understanding is that they served some jail time and
were released with what my people consider to be a slap on the wrist.
Meanwhile, we recovered the items that were left in the thieves'
stash. These sacred items are, in fact, not merely ``items'' to us.
They are full of life, they are central to our ceremonies, and they are
close to our hearts.
Some ``items,'' however, have still not made it home. But they are
not forgotten. Nearly two generations later, our people still discuss
these sacred items around the dinner table, wondering what happened to
them and where they are, the way one would wonder about the fate of a
missing relative. Among the items that have never returned is a shield
that was stolen from our home and belonged to my grandfather.
Grandfather has long since passed, but our family still remembers the
loss of this shield, and although I remember it clearly, I still try to
recall its finer details in my memory.
The Pueblo of Santa Ana strongly supports the Safeguard Tribal
Objects of Patrimony (STOP) Act and related federal legislation because
we still yearn for the return of our sacred items and because we do not
ever want another generation or another tribe to suffer the loss that
we have suffered. Theft and the illicit trade of tribal cultural items
steals from our people, our families, and our communities our history,
our culture, and the legacy we leave for our future generations. Truly,
it threatens our very identity and cultural survival--our ways of being
as a people and as a tribe.
The STOP Act strengthens existing federal laws, increasing
penalties for violations of the Native American Graves Protection and
Repatriation Act (NAGPRA). It also prohibits exporting items that were
obtained in violation of NAGPRA, the Archaeological Resources
Protection Act (ARPA), and the Antiquities Act. These increased
penalties and explicit export restrictions are necessary to deter the
theft and trafficking of our sacred and cultural items and to aid in
theft recovery both domestically and internationally.
Also, the STOP Act will protect tribes as well as good faith
sellers and purchasers. Illegal trafficking of tribal cultural items
corrupts the Native American art market, introducing uncertainty into
transactions. Santa Ana vehemently opposes those who work to illegally
market items of cultural patrimony, yet we do believe that we can
protect tribal cultures and support artists, dealers, purchasers, and
others engaged in the legitimate sale of Native American art. It is
only a small subset of the items for sale that qualify as federally
protected Native American cultural objects, and we fully support the
sale and enjoyment of legitimate Native American art. The STOP Act will
reduce illegal trafficking in tribal cultural items, allowing buyers
and sellers to be confident that they are participating in legitimate
transactions that honor Native American arts and culture.
In addition to supporting the STOP Act, we request support for the
creation of a Cultural Items Unit within the Bureau of Indian Affairs./
Such a unit, and sufficient funding for such a unit, could aid
tremendously in Santa Ana's efforts to locate and bring home our still
missing sacred and cultural items. We also welcome opportunities to
work with collectors to quietly repatriate sacred items.
My most sincere thanks to you the Committee for allowing the Pueblo
to provide testimony on this issue but most importantly, for bringing
this Field Hearing to New Mexico. We hope that you will take action to
remedy the great loss our community has suffered and continues to
suffer and that you will work to protect future generations and other
tribes from such tragedy. We welcome the opportunity to work with the
Committee and others as new ideas come in to address the grave problem
of the theft, illegal possession, sale, transfer, and exportation of
tribal cultural items. We continue to have faith and hope that one day
we all will be able to see and hold those items which were wrongfully
taken from us so many years ago.
______
Prepared Statement of Hon. J. Michael Chavarria, Governor, Santa Clara
Pueblo
Introduction
On behalf of Santa Clara Pueblo, thank you for this opportunity to
submit written testimony on the issue of the theft, illegal possession,
sale, transfer, and export of tribal cultural items. Trafficking in our
sacred cultural items has gravely affected our Pueblo, threatening our
way of life and our cultural survival. Santa Clara Pueblo fully
supports S. 3127, the Safeguard Tribal Objects of Patrimony (STOP) Act.
Urgent, immediate action is required to combat trafficking in our
cultural items, as we have seen a marked increase in such trafficking
over the last year. Higher penalties are needed to deter the theft and
sale of our cultural items, along with increased funding for and
attention to enforcement efforts. Additionally, in order to stop
trafficking in tribal cultural items, federal laws need to address
items dug up from private lands and items taken before the enactment of
NAGPRA. But even as we ask for stricter measures, we would welcome the
opportunity to build positive relationships with collectors of good
will in order to facilitate the voluntary return of sensitive items as
collectors come to understand how central these items are to our
identity. Thank you for your attention to these important issues.
Trafficking in Tribal Cultural Items Poses a Grave Threat to Our People
Santa Clara has been plagued by the theft and sale of our cultural
items since the time of first contact, and we continue to struggle
against this scourge. For us, our sacred and cultural items are not
merely objects or items of artistic or historical value. These items
are integral to our cultures. Our Pueblo, like many other tribes, has
been greatly impacted by having items stolen. The theft of our sacred
and cultural items must be stopped, and these items must be returned
home to our people, where they belong.
Support for the STOP Act and Related Efforts
Santa Clara Pueblo fully supports the STOP Act and related efforts
to end the theft and sale of our cultural items and ensure their
repatriation. We were very much encouraged by the Senate's September
29, 2016 passage of the Protection of the Right of Tribes to stop the
Export of Cultural and Traditional (PROTECT) Patrimony Resolution,
H.Con.Res. 122, as amended. The PROTECT Patrimony Resolution
acknowledged the seriousness of illegal trafficking in tribal cultural
items both at home and abroad and called for additional steps to
address this problem. We encourage the Committee to build on this
support for ending illegal trafficking in tribal cultural items by
supporting passage of the STOP Act.
Urgent Action is Required
Santa Clara welcomes recent congressional efforts to end
trafficking in tribal cultural items and to ensure these items return
home. However, we strongly urge the Committee to take swift action to
address these issues. In 2016, we have seen a significant uptick in the
rates at which our items are being sold at auction. In fact, we believe
that some of this increase in trafficking is because thieves and
vendors are attempting to offload stolen goods before legislation can
be passed that would crack down on the illegal trade in tribal cultural
items. We need your help now to stop these illegal sales and assist us
in recovering our sacred items.
Higher Penalties are Needed to Deter Trafficking
Currently, it is difficult to combat the trafficking of our
cultural items because penalties are not taken seriously. This is due
to both the relatively low jail time associated with such crimes as
well as the low risk of apprehension and prosecution. In order to
effectively combat trafficking in our cultural items, we need
perpetrators to take the risk of prosecution and criminal penalties
seriously. We strongly support the STOP Act's increase in criminal
penalties under the Native American Graves Protection and Repatriation
Act (NAGPRA). This increase in possible jail time will help deter those
that would pillage our cultures for profit in violation of federal law.
Additionally, we support the extension of criminal penalties to the
export of protected cultural items that have been taken from us
illegally. It is our hope that explicit export restrictions will keep
our sacred and cultural items from ending up abroad, where they are
much harder to locate and recover.
We have heard that there have been some criticisms of the STOP Act,
and we believe these are mostly founded upon a misunderstanding of the
Act. Importantly, the Act does not criminalize activities that were not
already violating federal law. It merely increases NAGRPA penalties and
prevents someone from knowingly exporting items taken in violation of
NAGPRA, the Archaeological Resources Protection Act (ARPA), and the
Antiquities Act. The feedback we have received over the years from art
and antiquities dealers is that our cultural items are being bought and
sold in backroom or basement deals, and the parties involved in these
deals are aware that they are breaking the law and violating our
culture. Neither current law nor the STOP Act seek to penalize good
faith sellers or purchasers.
Increased Attention to and Funding for Enforcement are Needed
In addition to higher criminal penalties, increased attention to
and funding for law enforcement efforts are needed to deter those that
would traffic in stolen cultural items. The Bureau of Indian Affairs
(BIA) needs additional resources to investigate these crimes and
enforce federal law. Santa Clara requests an appropriation to fund a
Cultural Items Unit within the BIA to investigate violations of NAGPRA,
ARPA and related federal laws. We understand that the House has
recommended $1,000,000 for the development of a Cultural Items Unit,
see House Report 1 14-632, and we request Senate support for such
appropriations.
Federal Laws Need to Address Private Lands and Repatriation of Items
Taken Before NAGPRA
In addition to increased criminal penalties for and enforcement of
current federal law, we urge Congress to address the narrow scope of
current laws. For instance, NAGPRA's provisions regarding private
ownership and control only apply to cultural items excavated or
discovered on federal or tribal lands after November 16, 1990. 25
U.S.C. 3002. We are left without recourse when dealing with items
stolen from our Pueblo prior to November 16, 1990, including ancient
items belonging to the Ancestral Puebloans. We also have no protection
regarding cultural items that have been dug up from private lands. The
narrow scope of current protections impedes the repatriation of many
cultural items that are deeply important to our Pueblo. We ask that
Congress address these very serious gaps in federal law.
Building Relationships with Collectors and Dealers
Federal laws regarding tribal cultural items shape the values of
our country. But within their frame, there is an opportunity for people
of good will to voluntarily bring these sacred items home. In our
experience, there is much work to be done to educate private entities
about shared Puebloan ancestry, ancient items, and the importance of
these to current Pueblos. We believe that fostering relationships with
collectors and dealers can help us to educate them about the history of
our peoples and facilitate the return of cultural items without
demanding forms of proof that would either be impossible to provide or
would entail sensitive information. The Santa Clara Pueblo will always
be open to discussing with the current holders of our cultural items
how their appropriate return can be achieved in a way that brings
dignity to all.
Conclusion
Thank you for visiting New Mexico to hold this important field
hearing. The theft, illegal sale, possession, and export of our
Pueblo's cultural items is threatening our very way of life. We welcome
your attention to this important issue, and we fully support the STOP
Act and related congressional efforts. In particular, we ask that you
help us deter the theft and sale of our cultural items by supporting
increased criminal penalties and greater attention to and funding for
enforcement of federal laws related to trafficking in tribal cultural
items. We also urge you to address the large gaps in federal
protections that impede the repatriation of items taken from us pre-
NAGPRA or from private lands. We respectfully request that you act
swiftly to address these issues, as the problem of trafficking in
tribal cultural items continues to grow. Each day that passes makes it
more difficult for us to recover the cultural items that have been
taken from us, and we urgently request your assistance in ending these
vile practices and restoring our sacred items to their rightful homes.
Thank you.
______
Prepared Statement of Robert V. Gallegos, Albuquerque, NM
Sharing the Burden
On the surface, STOP or the PROTECT legislation seems like the
noble thing to do. However, understanding how we have arrived at this
juncture is important. We cannot lose sight of the fact that cultural
objects left Indian possession in many different ways over the years,
and that in fact, US government agencies were responsible for most of
the inalienable cultural objects having left the native communities.
For more than 150 years, our government has passed laws and issued
regulations restricting Indian ceremonies, used termination acts to
alter indigenous governing structures, and forcibly relocated entire
communities. It has repeatedly forced assimilation upon indigenous
peoples by attempting to destroy their religions and language.
Our government's goal was to access Indian lands and terminate its
obligations to the tribes under treaties and federal law. In the 20th
century, termination policies provided a means to appropriate Indian's
cultural property for the benefit of non-tribal interest groups,
including the academic and scientific communities, without compensation
or permission from the native communities from which the cultural
property originated. According to the article History and Culture:
Termination Policy-1953-1968, ``pursuant to this policy,109 tribes were
terminated between 1953 and 1964, 2,500,000 acres were removed from
trust status and 12,000 natives lost tribal affiliation.'' This policy
continued until President Nixon reversed this trend through executive
actions in 1970.
It is no surprise that so many inalienable objects left the
reservations. Not knowing about the native cultural prospective, we art
dealers and collectors collected legally under the laws set forth by
our government. Now the market (dealers, collectors and museums) is
being blamed for the problems that are occurring in Paris and
elsewhere. We have forgotten or ignored the government actions that
brought cultural objects into the stream of commerce in the first
place.
We, the market, recognize our role in these transactions and we are
be willing to extend our hands in helping the Native Americans in owing
and controlling their sacred objects and objects of cultural patrimony
as defined by NAGPRA. As NAGPRA does not cover items in the private
sector acquired prior to 1990, the market should encourage voluntary
repatriation.
The most effective way of reaching out to other art dealers,
collectors, and museums is through education. Repatriation can best be
accomplished by educating dealers, collectors and museums about the
native world view and how the possession or loss of such items affect
the health of native communities. Solicitation of large foundations
such as Annenberg, Sackler, and others, and encouraging dealers and
collectors to donate monies for repatriation purchases could be
pursued. The availability of subsidized donations and the ability to
take advantage of tax deductions for donating to a federally recognized
tribe is essential for many collectors who are not, in fact, wealthy
individuals.
The U.S. Government needs to recognize that it created this problem
in the first place and accept its part of the burden. It needs to
allocate substantial amounts of monies for repatriation purposes to
ensure this process will work. NAGPRA encourages compromise solutions
between groups that do not normally interact. We need to come together
as a community and treat each other with respect as human beings. To
litigate is not the answer as it further polarizes peoples and the
millions spent on litigation can be better spent elsewhere. The Market
fears overreach by the native communities. However, it is time to trust
the decisions of the religious elders based on their customary laws. If
this process breaks down, we can always resort to old ways but we must
try!
______
Prepared Statement of Hon. David R. Yepa, Governor, Pueblo of Jemez
Senator Udall, Senator Heinrich and distinguished members of the
Senate Committee on Indian Affairs, thank you for holding this field
hearing in New Mexico to prevent the Theft, Illegal Possession, Sale,
Transfer and Export of Tribal Cultural Items.
On behalf of the Pueblo of Jemez, I request the assistance of the
United States Government to stop the theft, illegal possession, sale,
transfer, and export of Native American sacred objects and objects of
cultural patrimony.
The Pueblo of Jemez has been against the illegal sale, possession,
trade, theft and export of sacred objects of cultural patrimony ever
since we became aware of such incidents. We have had thousands of our
ancestral homelands desecrated in the form of archeological excavations
and looting on archeological sites associated to our ancestral
forefathers. Looters have stolen human remains as well as funerary
objects placed with our ancestors at the time of their interment.
Since the passing of Native American Graves Protection Repatriation
Act or NAGPRA, we have had to prove to the Federal Government that the
human remains and their associated funerary objects were in fact our
ancestral forefathers. Jemez Pueblo has repatriated tens of thousands
of human remains and their associated funerary objects and objects of
cultural Patrimony from Museums across the nation as well as one
international repatriation from New Zealand. In a few instances private
collectors have voluntarily returned many artifacts in their private
possession to Jemez Pueblo. It is hard to fathom the intensity of mixed
feelings these acts have brought to our people. It is just not right.
Today, in the 21st century we are still in the same predicament.
The difference today is that we have seats at the table to have our
voices heard. Our forefathers witnessed the lootings and the formal
archeological excavations occurring at our ancestral sites but who were
they going to tell? What were they supposed to do? It must have been
really heart wrenching to see their sacred sites and the human remains
of their ancestors dug up and put into boxes to be shipped away. In the
eyes of the Government they were not hurting anybody, just performing a
science on archeological sites on public lands with no consideration of
the Jemez people who were associated to these sites. Today, we can join
forces with our Native American brothers and sisters and make one voice
be heard by the United States Government that the act of theft, illegal
possession, sale and transport of Native American sacred objects and
objects of cultural patrimony has to stop now.
Jemez Pueblo has had hundreds of sacred objects and objects of
cultural patrimony sold in the antiquities market at national and
international websites like Sotheby's, Butterfield's Auction House, Eve
Auction House and the Galerie Flak in Paris, to name but a few (see
below for others), not to mention private collectors selling to other
collectors in ``legal transactions'' in the stores in Santa Fe and
Albuquerque. These activities must stop. Jemez Tribal Law states that
it is illegal for any tribal member to sell or desecrate any object of
cultural patrimony at any time or to anyone because they do not
rightfully own it; they may be responsible for it while it is under
their care but they do not own it. It is inexcusable and the result
could be alienation from tribal members and tribal activities. The
Pueblo of Jemez is in favor of stiffer penalties for the parties
involved in the illegal theft, sale, illegal possession, transfer and
export of sacred objects and for ensuring that such objects are
returned to the Native American owners.
The Pueblo of Jemez fully supports the Safeguard Tribal Objects of
Patrimony (STOP) Act, S. 3127 and H.R. 5854. This Act strengthens our
ability to protect our important cultural objects from ending up in the
hands of those that have no right to possess them. Stiffer penalties
and an explicit prohibition on exportation are crucial to prevent the
theft and trafficking of our cultural objects. The provisions in the
STOP Act are important to allow us to recover those objects that have
left our territory and to bring them back to where they belong.
A law is only good and will serve its purpose if it is enforced.
Enforcement of the STOP Act is absolutely necessary in order to achieve
the intent and objective behind this law. The Pueblo of Jemez strongly
suggests establishing a Cultural Crimes Unit within the Bureau of
Indian Affairs or within an appropriate federal agency to investigate
violations of the STOP Act. More importantly, the Pueblo of Jemez
requests for Congressional support for federal funding to support
establishment of a Cultural Crimes Unit and increased appropriations
for the United States Attorneys' Offices who will be responsible for
prosecuting violators of the STOP Act.
In conclusion, the Pueblo of Jemez in one voice with our Native
American brothers and sisters from 23 sovereign nations in the State of
New Mexico join in urging the United States Government to work with us
to stop the theft, sale, illegal possession, transfer and export of
Native American sacred objects and objects of cultural patrimony.
Jemez Antiquities have been sold on these websites
Christies.com
Artvalue.com
New.liveauctioneers.com
Adobegallery.com
Navajorugsindianbaskets.com
Artfinding.com
Sotheby's
Eve Auction House
Butterfield's Auction House
Galerie Flak
______
Prepared Statement of Jim Owens, Corrales, NM
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