Legal Issues

The “Art Market Integrity Act” Will Harm Your Business

To: All ATADA Members

From: Will Hughes, ATADA President

Our dedicated public servants in Washington, D.C. are again hard at work on legislation designed to burden small, art market businesses with damaging, costly and unnecessary regulation. A bi-partisan collection of strange bedfellows in the U.S. Senate introduced the “Art Market Integrity Act” on July 23, 2025.

The innocently named, yet grossly misguided bill, would force most art market participants to meet burdensome Anti-Money Laundering (AML) reporting requirements by setting thresholds for compliance as low as $10,000 per transaction or $50,000 in annual sales. Thus, even the smallest businesses and most part-time dealers would likely be subject to this proposed law. The Act would cover most participants in the art market, including, art and antiques dealers, advisors, auction houses, museums, custodians, and collectors.

U.S. art businesses, museums, and collectors will suffer significant harm and expense by the imposition of the same Federal reporting obligations on ordinary transactions as if they were financial institutions or casinos. Failure to meet these reporting requirements would expose art market businesses to draconian penalties. Most businesses would need to retain the services of AML consultants and to purchase AML software to ensure compliance.

One of the supporters of this misguided, and totally unnecessary legislation is the Antiquities Coalition. Yes, it’s the same organization that lobbied for the 2021 amendment to the Bank Secrecy Act that extended AML coverage to “antiquities” dealers. We are, thankfully, still awaiting the regulations that will define an antiquities dealer. Depending upon the ultimate definition of “antiquities”, many of our ATADA members will become subject to AML laws under that already passed amendment to the Bank Secrecy Act.

I’ve included a link to a good article on the proposed Art Market Integrity Act published in the Cultural Property News.

https://culturalpropertynews.org/weaponizing-regulation-hidden-dangers-of-the-art-market-integrity-act/

I would urge you to support the Cultural Property News as it is one of our only sources of timely and accurate information on cultural property issues and proposed legislation. As noted in the article, “the Art Market Integrity Act is Trojan horse, using the language of financial crime to pursue long advanced ideological goals aimed at eliminating the antiquities trade.” The foundation of the proposed Act rests on various false claims, misleading analogies, and a total disregard of the U.S. Treasury’s own findings with respect to money laundering and terrorist financing in the art market.

Time to get active! Contact your Senator (particularly if he happens to be one of the ill-informed sponsors of the proposed Act: John Fetterman, Chuck Grassley, Sheldon Whitehouse, Dave McCormick, Bill Cassidy and Andy Kim) and complain loudly about this misguided bill that will cause significant harm and incurred expense to small businesses. You could also decide to help support ATADA’s legal and lobbying efforts with your financial contribution. ATADA cannot have a significant impact in the legislative arena without adequate financial resources.


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ATADA is a nonpartisan organization and does not support or endorse any candidate for office. Contributions and gifts to the ATADA Legal Fund will support lobbying and other activities. 

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Memo on Pennsylvania Bill to Further Restrict the Ivory Trade

ATADA Members,

The Pennsylvania House is currently considering HB 994 which would impose severe restrictions on the purchase, sale or possession of objects made from or containing ivory (and certain other specified animal parts). If you sell covered objects in Pennsylvania, or source covered objects in Pennsylvania, I encourage you to read the pending HB 994 and to weigh in with PA legislators before the bill passes in its current form.
 
There are certain exemptions to the restrictions contained in HB 994, dependent upon the provenance and age of the ivory contained in an object. It is uncertain, however, what documentary proof will be required to satisfy the terms of the various exemptions. In addition, these exemptions will only apply if the total weight of the ivory contained in the object is less than 200 grams (slightly less than ½ pound). It appears that there are no exemptions to the ban on the purchase, sale or possession of objects made wholly or primarily of ivory (including most marine ivory). The PA law is clearly much stricter than applicable Federal law.
 
If you may be affected by PA House Bill 994, I suggest that you take a closer look at the proposed legislation: 

https://www.palegis.us/legislation/bills/2025/hb994

If you don’t like what you are reading, contact your PA representative or the bill’s sponsors to express your concerns.

Finally, I’ve attached a July 14, 2025 article from Antiques and the Arts Weekly which provides further information.


https://www.antiquesandthearts.com/pa-house-bill-994-proposes-to-further-restrict-ivory-trade/

-Will Hughes

President, ATADA


Memo on New EU Import Regulations

ATADA MEMO ON NEW REGULATIONS ON IMPORTING CULTURAL GOODS INTO THE EUROPEAN UNION

A heads-up to all ATADA members that sell tribal art and antiquities to EU customers. Regulation (EU) 2019/880 takes full effect on June 28th and will present significant challenges to the ongoing trade with EU based customers. The law will not affect all our dealer members as it applies to cultural goods over 200 years old (250 years for archeological objects and elements from monuments) and worth more than 18,000 euros (including all associated costs, such as sales tax, insurance, packing and shipping). There is no minimum worth for archeological objects and elements from monuments.
 
The impact of the new regulation could be severe for EU collectors and dealers because the obstacles to importing certain categories of cultural property may well discourage them from buying outside the EU. Buyers may be understandably discouraged because the regulation will entail additional paperwork for imports, cause delay if an import license is required, and require declarations under “penalty of law”, and pose the risk of seizure and confiscation. Please note that only the EU-based owner of the goods may initiate and complete the import process required by the regulation.
 
What role will the U.S. based seller play when contacted by an interested EU-based buyer of an object covered by the new regulation? First, from a pragmatic point of view, you must determine how likely it is for your client to be sufficiently motivated and interested enough to complete the import process themselves? Second, you must ascertain if the provenance of the object will meet the stated requirements of the regulation.
 
You must be able to supply your client with specific, accurate evidence/information concerning the object to be imported. Your client will be making a declaration as to the veracity of such provided information under penalty of law.
 
The EU-based importer (owner) must sign a declaration that the object was legally exported from its country of origin under the local law at the time of export. In many, if not most cases, evidence to prove legal export from the country in which the object was created or discovered is non-existent. Therefore, in many cases you may not have the information required to supply your customer with evidence to support a declaration as to the legal export of the object from its country of origin. The regulation does provide a workaround when the country of origin cannot be identified, or proof of the original lawful export cannot be provided or does not exist. If the object was exported from its country of origin before April 1972, the regulation allows for the introduction of evidence that the object was lawfully exported from the last country where it was continuously located for at least five years.
 
There is uncertainty over what qualifies as sufficient documentation for compliance. Guidance from EU bureaucrats has been somewhat conflicting thus far. The proof to obtain an import license for archeological objects could prove daunting: complete files, including export permits where available, customer records, sales invoices, shipping documents, title chain, catalog entries and photos. Non-archeological cultural property will require an importer’s statement, including a due diligence declaration, and EU customs may request supporting documents or additional documents at any time from the importer. Issued guidance suggests that a declaration under oath of a third party regarding the legal export of a cultural good may be acceptable in the absence of any other relevant documents. It also appears that detailed auction or exhibition catalog descriptions along with identifying photos might be sufficient evidence of original legal export (or location for 5 years within the last country from which the object was exported from) to permit the issuance of an import license or acceptance of an import statement.
 
There will be an interesting intersection between Regulation (EU) 2019/880 and the STOP ACT once the act’s final implementing regulations are issued and the export certification process itself is established. As to Native American and Native Hawaiian objects, if an exporter/seller obtains Export Certification under STOP for a particular object, such certification would be persuasive evidence of lawful export from the country of origin, the United States. If it actually proves possible to obtain export certification under STOP (or that the final regs clearly define those objects that do not require export certification), STOP may facilitate the export of certain Native American and Native Hawaiian objects to the EU.

-Will Hughes
President, ATADA


Disclaimer:
The foregoing is intended only as a reminder that Regulation (EU) 2019/880 takes effect in just a couple of weeks, and that it will profoundly change the import of cultural property into the EU.

ATADA strives to provide timely, general information regarding laws and regulations potentially affecting its members. ATADA does not provide specific legal advice to individual members. If you have a question about the impact of the new EU regulation on your particular transaction, please consult legal counsel with cultural property expertise or a specialized customs broker.

NAGPRA Revisions for 2024

In a recent newsletter, Will Hughes highlighted a few of the revisions to the Native American Graves Protection and Repatriation Act of 1990.

Kate Fitz Gibbon has written an in-depth, 26-page report on the revisions which came into force in January 2024. The report describes the impact these new regulations are having on museums, educational institutions, donors and researchers, as well as updated definitions of terms such as "cultural items", "sacred objects", and "cultural patrimony", among others. 

If you have not already done so, I urge you to read the full report on the Cultural Property News website at: 
https://culturalpropertynews.org/the-new-nagpra-traditional-knowledge-in-artifacts-out/

STOP Act Information - January 2023

This information is current as of January 16, 2023. We will provide updated info as it becomes available.

THE STOP ACT HAS PASSED.
WHAT DO I NEED TO KNOW? WHAT DO I NEED TO DO?

The Safeguard Tribal Objects of Patrimony Act of 2021 (the H.R. 2930 version) was passed by the Senate on November 29, 2022 and was signed into law by President Biden. The stated purpose of the law is to stop the export and facilitate the international repatriation of cultural items prohibited from being trafficked by the Native American Graves Protection Act (NAGPRA), and archaeological resources prohibited from being trafficked by the Archaeological Resources Protection Act of 1979 (ARPA) or any other Federal law or treaty. The STOP Act explicitly prohibits the export of items obtained in violation of NAGPRA, ARPA or any other federal law and in addition creates an export certification system for other items that may be exported but only after receiving export certification from the Interior Department.

Many ATADA members have requested guidance on how to navigate the export of Native American or Native Hawaiian objects after passage of the STOP Act. We follow with the best guidance that we can offer at this early stage.

Detailed guidance can’t be offered yet as to which Items require export certification or which items ultimately will not require any certification at all to export. The definitions contained in the law itself of items covered are vague, and we do not yet have the final or even proposed implementing regulations for STOP to give us further guidance.

It will take a year, perhaps more, for the Interior Department to go through the process of issuing proposed regulations all the way through to the adoption of final regulations. In the meantime, there will be no functioning export certification system, so compliance with STOP’s export certification provisions cannot yet be expected from exporters as to “Items Requiring Export Certification” under the law.

At this point, the only provisions of STOP that are now fully effective and enforceable are those provisions related to the ban and penalties attached to the export of an “Item Prohibited From Exportation (essentially items being “trafficked” in violation of NAGPRA, ARPA or any other Federal law).

Accordingly, the best advice right now is to be very cautious if you are exporting an item. Don’t attempt to export any item that you think may have been obtained in violation of NAGPRA, ARPA or any other Federal law. Of course, you should have been following such advice even before the passage of STOP. While we don’t see a legal justification for U.S. Customs to change its procedures before STOP regulations are finalized, it is also possible that Customs could raise questions about exports of antique or prehistoric objects based upon its own interpretation of authority derived from STOP’s export ban on Items Prohibited from Exportation. So again, be very cautious when considering the export of an item which could reasonably be characterized as a “cultural item” or “archaeological resource” under NAGPRA or ARPA.

Provenance has always been important, but under STOP it will be critical if you intend to export an item. Good documentation could be the key to a smooth export process.

Until we have final implementing regulations, the best course of action is to be fully prepared to document the provenance of all the Native American and Native Hawaiian items in your inventory or collection to the greatest extent possible. The best provenance, although admittedly rare, will provide documentation of the original acquisition of the piece from a tribe, tribal member or Native Hawaiian, or the original discovery of an archaeological piece. For example, a photo of a Great Aunt at Acoma Pueblo in 1905 holding the dough bowl she just purchased, or a photo of a Great Grandfather holding an Anasazi pot that he found on his ranch in Southern Colorado in the 1930’s. The next best provenance would be documentation of an early acquisition history, the earlier the better. For example, the Harvey House souvenir shop receipt a Great Aunt received for a piece purchased in 1915; or the receipt for a Hawaiian object that a Great Grandfather purchased at an antique shop in Honolulu in 1895. If you have a documented provenance before 1979, then the object cannot have been trafficked in violation of ARPA; if you have a documented provenance before 1990, then the object cannot have been trafficked in violation of NAGPRA. It is clear that objects lacking any credible provenance at all will not be eligible for export certification under STOP, and certain types of objects with only a very recent provenance may be unlikely to receive export certification. Objects that can be characterized as funerary items are very unlikely to receive export certification as in most cases the exporter will be unable to meet the burden of proof of a “right of possession” to the such object.

 

Note: The information contained on ATADA’s website and in e-mail communications to its members is provided for informational purposes only and should not be construed as legal advice on any subject matter. Anyone seeking specific legal advice or assistance should retain an attorney.

Open Letter on Damaging Anti-Money Laundering Legislation

From: Will Hughes
Date: March 23, 2022

ATADA Members,

Below is a link to an important open letter from CINOA (joined by ATADA) which was published by the Art Newspaper. It was submitted to publications in Europe & the U.S. and we expect it to be widely picked up, in whole or in part.

https://www.theartnewspaper.com/2022/03/14/damaging-and-unjust-legislation-linking-art-and-antiques-trade-to-money-laundering-and-terrorism-financing-must-stop-industry-body-says


Sincerely,
Will Hughes

 

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Anti-Money Laundering Legislation Will Affect You

Plateau,_Klikitat,_Unassigned_-_Burden_-_1917.411_-_Cleveland_Museum_of_Art.tif.jpg

Legal artifact collecting, small businesses and hobbyists are directly threatened by legislation that could kill small businesses trading in artifacts and antiques.

On Jan. 1, 2021, Congress passed the National Defense Authorization Act (NDAA). Under Section 6110, this bill called for the Bank Secrecy Act to be amended to subject all “antiquities dealers” to anti-money laundering regulations that could drive small traders in antiques and artifacts out of business. This legislation makes “antiquities dealers” – who are not defined - into "financial institutions" under the Bank Secrecy Act.

Regulations are being written today aimed at people who legally collect artifacts, who go to artifact shows and who buy, sell or trade them.

How could regulation affect you? Typical Bank Secrecy Act rules would require all “antiquities dealers” with sales of $50,000 a year to collect private information including the name, address, and source of their money from buyers and sellers and file transaction reports with FINCEN (the Financial Crimes Enforcement Network), a Treasury entity. FINCEN shares this information with US tax authorities and police in 90 countries around the world.

Dealers could be required to do an annual independent audit and file Suspicious Activity Reports on cash or large sales over $2,000-$3,000. Anti-money laundering programs even for small businesses can cost thousands of dollars per year as well as the time required to comply. It is impossible to fly under the radar; regulations are enforced by the banks that will freeze or close accounts which do not comply.

American businesses, traders, and collectors, large and small, should ask FINCEN to define “antiquities” as narrowly as possible and to adopt high monetary thresholds before reporting is required.

The Treasury was given one year to decide what regulations to impose on the trade. FINCEN will soon announce a “Comment Period” for the public to respond to proposed regulations via the Federal Register. ATADA will post instructions below.

As soon as the Comment Period opens, it will be crucial to let U.S. FINCEN regulators – and your Senators and Congressmen – know that they should exempt the small businesses of the American Indian art and artifact trade from unnecessary regulation. Make YOUR VOICE count!

When the proposed regulations are issued and the comment period opens, ATADA will post links and instructions here.

The STOP ACT, HR 2930, S 1471: Draconian Legislation Threatens Collecting and Trade in Native American Art

Legislation that could lock Native American art within U.S. borders is pending again in Congress. The STOP Act threatens the tourist-dependent economy in the Southwest, calls for an unworkable export regime with no time limits, applies to objects of any age and value, lacks Constitutional safeguards and operates in secrecy – denying Freedom of Information Act access even to an exporter whose goods are seized. The STOP Act would require tourists as well as commercial exporters to submit photos and forms and obtain permissions for exports as low as $1 value.

This latest version of STOP is identical to a bill that was introduced in the Senate and was passed by the Senate, but not the House, at the end of 2020. ATADA has major concerns with STOP’s secrecy, its lack of transparency and public accountability.

ATADA supports halting illegal trade, whether it takes place in the US or overseas. We worked together with the Acoma Pueblo in 2018 to do exactly that, in a bill introduced by former NM Congressman Steve Pearce, H.R.7075.

ATADA fully supports bringing sacred items back to tribes. This is the goal of our highly successful Voluntary Returns Program, which has brought over 400 sacred objects to Native American Sovereign Nations over the last five years.

Here’s how the current STOP Act goes beyond its stated objective to ban export of illegal items: 

  • Placing the burden of proof of lawful purchase from tribes on the exporter. The lack of ownership history of most items creates a de-facto export ban.

  • STOP lacks a “knowing” standard threatening law-abiding citizens with criminal prosecution.

  • Even “solely commercial” items can be denied export at the discretion of a tribe.

  • It puts no time-limit on certification review serving as a bar to commercial transactions and foreign museum loans.

  • Tribes have the right to review of all certification applications and appeals are limited, giving tribes unchecked authority to ban any and all exports.

  • Tribal communications and application records are exempt even from Freedom of Information Act requests, denying exporters access to evidence to contest seizures.

The ultimate long-range goals of STOP may be those articulated by the Association of American Indian Affairs/AAIA. The AAIA has said that: “Title to items of Native American cultural heritage must be vetted with affiliated Tribal Nations.”

A Better Alternative to the STOP Act

ATADA, the Authentic Tribal Art Dealers Association, 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. That is why both ATADA and the Acoma Pueblo worked with New Mexico Congressman Steve Pearce when he introduced a 2018 bill, H.R. 7075, The Native American and Native Hawaiian Cultural Heritage Protection Act.

 H.R. 7075 was a far better bill. It was supported by Acoma Pueblo and ATADA. It addressed many of the same goals as the current STOP Act. It banned the export of illegal items. It enabled tribal review. Unlike STOP’s burdensome export system, which would have to be created from scratch, H.R. 7075 used a permitting process already familiar to Customs and provided for a more user-friendly certification process.

 Importantly, it preserved the rights of all Americans to due process – which STOP does not.

 That compromise has been rejected by Acoma’s new leadership. STOP substitutes a vague, start-from-scratch permitting system, without public accountability. In fact, STOP would explicitly restrict export of commercial items at the discretion of the tribes.

 ATADA supports legislation to preserve tribal heritage. Wouldn’t it be better to amend STOP, using the 2018 Native American and Native Hawaiian Cultural Heritage Protection Act as a model acceptable to all?

Zuni-olla.jpg

 ATADA should be judged by its actions. In 2016, ATADA created the Voluntary Returns Program, a community-based initiative that has so far brought over 300 sacred and highly valued ceremonial objects to Native American tribes, completely free. Returns take place through a consultative process in which ATADA representatives work directly with community and spiritual leaders of Native Nations. ATADA is truly committed to bringing sacred objects back to tribes.

Legal Briefs - June 2021

NAGPRA Repatriations through September 8, 2020;
Law’s Opaque Reporting Leads to Masking Objects’ Identities

by Ron McCoy

Interior of Chief Shakes House, via Wikimedia Commons

Interior of Chief Shakes House, via Wikimedia Commons

 In 1990, Americans debated how best to observe (or ignore) the upcoming Columbian quincentenary. Pressed hard, Congress sought some way to signal a desire to make some amends for past practices and ongoing injustices meted out to the nation’s indigenous peoples.Its response took the form of the Native American Graves Protection and Repatriation Act (NAGPRA), which lays out a blueprint for attempting to not only revisit but essentially redo the past.

The law seeks to accomplish this by establishing a process for repatriating certain types of “cultural items”[1] of Native American or Native Hawaiian origin from institutions that meet its broad definition of “museum.”[2]The rationale underlying this practice rests on the proposition that the very nature of certain objects renders them inherently involved in, forever connected to, and fundamentally inalienable from the tribal milieu. If the museum and claimant(s) — specific tribal entities or identified individuals — agree on the legitimacy of the claim, the piece will be repatriated.

In order to qualify as a cultural item under NAGPRA, a piece must fulfill the requirements for inclusion in one or more of its five categories: human remains, associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony. Given this column’s anticipated readership — people who curate, collect, and deal in authentic tribal art — pieces that find their way into a pair of NAGPRA categories regularly receive attention: sacred objects[3] and objects of cultural patrimony.[4]

NAGPRA news appearing here is typically related to repatriations of materials the museums possessing them and those laying claim to them have agreed should be transferred back into the tribal sphere from which they came. That information is drawn largely from the Federal Register, sometimes augmented by additional sources. The Federal Register may not find a place on most of our reading lists, but it remains the forum of record for publishing announcements about the repatriation agreements museums and claimants arrive at through NAGPRA.

NAGPRA repatriation notices published in the Federal Register follow a standard template. That blueprint is designed to: inform readers about the identities of the institution and claimant(s) involved in the repatriation bid; provide information about a piece, its description, function, and provenance that support the case for its inherent inalienability from — and therefore the need for its repatriation to — the tribal world; and, finally, identify the person(s) or entity to which the object will be repatriated pending the filing of a competing claim. (There is no requirement under NAGPRA for any of the parties involved in the process to account for an object’s actual final disposition. A dozen tribal entities are listed in the first notice summarized below, for example, but how such a repatriation would be carried out is not this law’s concern.)

Ideally, one should be able to read a NAGPRA repatriation notice in the Federal Register and learn quite a bit about a given piece’s appearance, provenance, and role.

Each element in a NAGPRA notice is important, but a point of particular concern and interest is that part in which the object to be repatriated is described. That is because for this column’s intended audience, knowledge about a piece’s construction, appearance, and provenance is of vital importance if they are to understand how the letter and spirit of the law are reflected through its application.

This current harvest of NAGPRA notices of intent to repatriate sacred objects and objects of cultural patrimony brings us up to date on those appearing in the Federal Register through September 8, 2020. (Unless otherwise indicated, quotations used in reporting notices comes from those notices.)

 

Diegueño/Kumeyaay Basketry Feathered Shaman’s Hat
Sacred Object

Museum of Riverside, Riverside, CA (Sept. 8, 2020): The item covered by this repatriation notice, otherwise undescribed, is a “basketry feathered shaman’s hat” dated to circa 1900, a “sacred item [which] was removed from the traditional land of the Diegueño/Kumeyaay in San Diego County, CA.”No additional information supports that conclusion, and the piece’s provenance evidently consists of a 1952 letter documenting its donation to the institution.

The museum agreed to transfer the hat to a group of culturally related California entities referred to collectively as “The Tribes” for purposes of the notice: the Campo Band of Diegueno Mission Indians of the Campo Indian Reservation; Capitan Grande Band of Diegueno Mission Indians (Barona Group of Capitan Grande Band of Mission Indians of the Barona Reservation); Viejas (Baron Long) Group of Capitan Grande Band of Mission Indians of the Viejas Reservation); Ewiiaapaayp Band of Kumeyaay Indians; Iipay Nation of Santa Ysabel; Inaja Band of Diegueno Mission Indians of the Inaja and Cosmit Reservation; Jamul Indian Village; La Posta Band of Diegueno Mission Indians of the La Posta Indian Reservation; Manzanita Band of Diegueno Mission Indians of the Manzanita Reservation; Mesa Grande Band of Diegueno Mission Indians of the Mesa Grande Reservation; San Pasqual Band of Diegueno Mission Indians; and the Sycuan Band of the Kumeyaay Nation.

 

Painted Drum (Cochiti Pueblo)
Sacred Object/ Cultural Patrimony

Harry Ransom Center, University of Texas at Austin, Austin, TX (July 30, 2020): This notice focuses on a painted wooden drum acquired by California attorney Erle Stanley Gardner (1889-1970), who achieved fame as the prolific creator-chronicler of fictional courtroom lion Perry Mason. We know nothing about this drum, other than that fact of its donation to the museum as part of Gardner’s estate and the piece’s general appearance: “a wooden drum with rawhide ends and lacing, and painted in ochre, dark brown, and white colors.”

According to the notice, “research and consultation with representatives from the Pueblo of Cochiti, New Mexico, found that Cochiti is known by all Pueblos for creating ceremonial drums of this style for tribal use in the practice of traditional native religion.” (Cochiti is also known for producing drums for the marketplace.) “Accordingly, this drum…clearly is a sacred object originating from Cochiti Pueblo,” to which the museum agreed the drum should be repatriated.

By combining this notice with an interesting firsthand account of the process written by Ester Harrison, a member of the museum’s staff, it is possible to glean some insight into how this decision was made.[5]

Basically, after the museum figured out the drum was likely of Native American origin, probably from the Southwest, the instrument was included in a 2019 summary of possible NAGPRA-affected objects in its collections. About a year later, Harrison writes, “we were delighted to hear from the Cochiti Pueblo in New Mexico who positively identified one of the drums in the inventory as being Cochiti and an object of cultural patrimony.”[6] After that, “[w]orking closely with the Cochiti Pueblo contact primarily by telephone, we supported each other through the required next steps, sometimes sharing each other’s views and experiences and embarking on a meaningful new professional relationship in the process.”[7]

 

Killer Whale Shirt (Tlingit)
Sacred Object/ Cultural Patrimony

Minnesota Museum of American Art, St. Paul, MN (June 10, 2020): In 1926, Presbyterian minister and teacher Axel Rasmussen (1886-1945) commenced a decade-long tenure as superintendent of schools in Wrangell, Alaska, subsequently taking up a similar posting in Skagway.[8] Over the years, Rasmussen, a keen student of Tlingit and other regional cultures, put together a substantial collection of pieces from the area’s indigenous peoples. Among his acquisitions is the piece to which this notice refers: a killer whale shirt, which the Minnesota Museum of American Art bought from the Portland Art Museum in 1957.

This shirt is associated with the Naanya.aayí clan, which serves as its collective custodian. Tribal representatives “described how the clan came to own the name and crest killer whale Sheiyksh, and demonstrated the traditional uncle-to-nephew hereditary transfer of the item going back to the first Chief Shakes.” (A photograph taken in the early 1940s shows Chief Shakes VII, also known as Charlie Jones, wearing this shirt.)[9]

The writer(s) of this notice took pains to emphasize the nature of the bonds linking the Naanya.aayí clan to this shirt. “The killer whale shirt bonds the Tlingit people to their ancestors,” the author tells us, “symbolizing the people’s relationship to the being depicted on it.” The prominent inclusion of the clan crest in the garment’s overall design “provides a physical form in which spiritual beings manifest their presence.”

The notice finds this shirt is “needed for current and ongoing cultural and religious practices,” and, further, that “under the Tlingit system of communal property ownership, it could not be alienated, appropriated, or conveyed by any individual.”

Accordingly, the museum agreed to return the killer whale shirt to the Central Council of the Tlingit & Haida Indian Tribes, acting for itself and on behalf of the Wrangell Cooperative Association (specifically the Naanya.aayí clan).

 

5,816 Objects (Winnebago)
Cultural Patrimony

John Michael Kohler Arts Center, Sheboygan, WI (June 10, 2020): Watchmaker and amateur archaeologist Rudolph Kuehne (1855-1929)[10] amassed a large trove of objects during some thirty-five years of digging and scraping in and around Sheboygan, Wisconsin. The collection he built contains nearly six thousand objects, including: stone points, scrapers, hand axes, hammerstones, gorgets, beads, and gaming pieces; copper points, blades, awls, amulets, beads, and rings; antler awls; also clay vessels, plant specimens, and seven beaded sashes or belts.[11]

After Kuehne’s death, the museum’s parent entity acquired this material from his widow.

The museum agreed these cultural items qualified as objects of cultural patrimony under NAGPRA and should be transferred to the Winnebago Tribe of Nebraska, whose ancestors resided in the Sheboygan area.

 

Eleven Objects “Erroneously Identified…as Masks” (Navajo)
Sacred Objects

Federal Bureau of Investigation, Art Theft Program, Washington, D.C. (June 10, 2020): At a time unknown, “11 sacred objects were acquired in the Southwest and transported to the East Coast.” There, these eleven undescribed pieces became “part of a private collection of Native American antiquities, art and cultural heritage.” In the spring of 2018, the FBI, acting in connection with a criminal investigation, seized those objects, which had been “erroneously identified by the collector as masks.” (For the moment, let us leave aside the question of what these pieces might be; after all, the notice tells us their identification as masks would be erroneous since they are obviously not masks.) The FBI determined these pieces are sacred objects that rightfully belong with the Navajo Nation of Arizona, New Mexico, and Utah.

If you are left a bit confused wondering what this notice is about, you are not alone.
In what appears to be a growing trend with NAGPRA notices, the author(s) of this entry opted for opacity by providing as little information as possible. Whether done intentionally or unconsciously, this renders the notice practically worthless for tribal art curators, collectors, and dealers in their attempts to discern the shifting parameters of the objects embraced by NAGPRA. The situation here is rendered patently absurd, because the eleven objects “erroneously identified by the collector as masks” are almost certainly eleven masks.

How did we arrive at the point where such a conclusion seems to be the only one that is even remotely reasonable?

We receive the message these objects are masks because the notice takes great pains to inform us they are not masks. The author(s) of the notice manage to attain this questionable goal by emphasizing that the objects were “erroneously identified by the collector as masks [italics added]. If these pieces are not masks, what are they? Baskets? Quillwork? Rattles? Pottery? It seems perfectly reasonable to conclude that what a collector “erroneously” identified as masks must have looked to her/him a lot like…masks.

“What’s in a name?” William Shakespeare’s Juliet asks her Romeo. After all, she asserts: “That which we call a rose/By any other name would smell as sweet.”[12] (It might be helpful to recall that, like the rest of Romeo and Juliet, the words the bard placed on Juliet’s lips form part of a tragedy.) Some three centuries later, modernist writer Gertrude Stein reminded readers: “a rose is a rose is a rose is a rose.”[13] But obscuring the identity of a mask by failing to even describe it properly — while simultaneously asserting someone “erroneously identified” it as a mask — constitutes an act of masking.

It seems likely this masking exercise was intended to address the sensibilities of people for whom describing certain objects as “masks” would be problematic. However worthwhile that goal may be, in this instance the act of bending to it eliminates the possibility of presenting meaningful information about the pieces. Even Shakespeare and Stein, when talking about roses, did not use esoteric code; instead, they used a specific, readily understood word — that word was “rose” — so readers would know what they were writing about. In that vein, here is a suggestion for NAGPRA notice writers: Instead of muddying the waters, why not consult a list of appropriate synonyms for “mask”? In the meantime, let me suggest one: “not-mask.”

NAGPRA, like any law, is credible only so long as it is understood. Obscuring the identity of objects slated for repatriation is a profoundly unhelpful act, one which falls well outside the goal of keeping us informed about how the law is enforced.

 

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

ENDNOTES

[1] “Cultural items” under NAGPRA means: “Human remains, associated funerary objects, unassociated funerary objects, sacred objects, [and] cultural patrimony.” “Native American Graves Protection and Repatriation Act: Glossary,” National Park Service (2020), https://www.nps.gov/subjects/nagpra/glossary.htm

[2] For NAGPRA’s purposes, a “museum” refers to “[a]ny institution or State or Local government agency (including any institution of higher learning) that receives Federal funds an has possession of, or control over, Native American cultural items.” Ibid. Specifically excluded: “the Smithsonian Institution or any other Federal agency,” which are covered by other legislation.

[3]For NAGPRA’s purposes, a “sacred object” is “needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day [sic] adherents.” Ibid.

[4] An object is deemed “cultural patrimony” under NAGPRA if it has “ongoing historical, traditional, or cultural importance central to the Native American group or cultural 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 such Native American group at the time the object was separated from such group.” Ibid.

[5] Ester Harrison, “The Ransom Center and NAGPRA: A Team Effort in Research,” Ransom Center Magazine (2021), https://sites.utexas.edu/ransomcentermagazine/2021/02/18/the-ransom-center-and-nagpra-a-team-effort-in-research/

[6] Ibid.

[7] Ibid.

[8] Bill Mercer, “Native American Art at Portland Art Museum,” American Indian Art Magazine, Vol. 26, No. 2 (74-81), 76-79; “Beloit College Collections,” (n.d., accessed May 2, 2019). https://dcms.beloit.edu/digital/collection/logan/id/3274/

[9] The information accompanying the photograph labels the garment worn by Shakes VII the “Killer Whale Flotilla Robe.” “Chief Shakes VII,” Alaska’s Digital Archives (Alaska State Library – Historical Collections), https://vilda.alaska.edu/digital/collection/cdmg21/id/2418/

[10] “Emma Greiser Kuehne,“ Find a Grave (2021). https://www.findagrave.com/memorial/101993518/emma-kuehne

[11] At the time, The Wisconsin Archaeologist, NS, Vol. 9, No. 3 (April 1930) (The Wisconsin Archeological Society), 143, described Kuehne’s collection as “one of Wisconsin’s richest and most valuable private archeological collections.”

[12] Romeo and Juliet, Act II Scene II REDO “The Complete Works of Shakespeare,”

http://shakespeare.mit.edu/romeo_juliet/romeo_juliet.2.2.html

[13] In her 1913 poem “Sacred Emily” (1913), Stein wrote: “Rose is a rose is a rose is a rose.” Later, in Operas and Plays (1932), she recalibrated her remarks: “Do we suppose that all she knows is that a rose is a rose is a rose is a rose.” “Gertrude Stein,” EPC Digital Library (Electronic Poetry Center, 2011), http://writing.upenn.edu/library/Stein-Gertrude_Rose-is-a-rose.html