Gallup Independent: Federal bill aims to protect tribal objects

For the Independent

November 14, 2017

WASHINGTON - Pueblo of Acoma Gov. Kurt Riley appeared before the U.S. Senate Committee on Indian Affairs in Washington Wednesday to offer oral and written testimony in support of the enactment of the Safeguard Tribal Objects of Patrimony Act of 2017.

Sen. Martin Heinrich, D-N.M., introduced the STOP Act to prohibit the sale in foreign markets of Native cultural items smuggled out of the United States for trafficking abroad and to strengthen certain domestic protections as well.

The proposed bill is meant to reinforce and supplement the three already existing federal laws governing Native cultural objects - the Native American Graves Protection and Repatriation Act, the Archeological Resources Protection Act, and the Antiquities Act - in three key ways:

• By increasing penalties for NAGPRA violations to levels consistent  with the National Stolen Property Act.
• By creating international protections for Native cultural objects that proponents say are not currently in place.
• By creating a voluntary federal program to facilitate the return of cultural objects to tribes, akin conceptually to one already operated by the Antique Tribal Arts Dealer Association, but under federal control.

Before introducing Riley, Heinrich addressed the committee to remind its members why the federal protections afforded by his proposed bill were still needed.

"Tribes in New Mexico and across the nation have been forced to pay a ransom or had to stand by and watch the sale of their priceless religious and cultural items in international markets," he said.

‘Stop Cultural Genocide'

Heinrich's involvement in this issue started with the near loss of a sacred shield - a painted leather ceremonial shield from the Pueblo of Acoma. Taken illegally from the tribe in the 1970s, after a tortuous journey of decades' duration, it arrived in Paris, France, at The Eve Auction House, where in the spring of 2015 it was put up for sale.

By happenstance, the shield did not sell at auction. But despite moral appeals and legal challenges from Acoma, it was slated again for sale in 2016. Again it was not sold. Heinrich is credited with intervening, and through diplomacy, the U.S. State Department was successful in having the shield pulled from the auction.

Other tribes' objects, however, could not be similarly rescued: 12 sacred Kachina masks were lost to the art market for a price of $129,000, even as Natives protested outside the auction house with signs bearing forceful messages such as: "Stop Cultural Genocide."

No protection under law

In the discussions with the French government, France argued that the U.S. did not have a law sufficient to ban the export of the Acoma shield, or similarly culturally significant items. Five weeks later Heinrich was ready to go with the STOP Act in order to remediate that perceived gap in U.S. law. But time ran out on the original version, and it was not voted on in the last Congress.

Tribes as well as organizations representing dealers and collectors of Native artifacts were both vocal about the need to protect sacred Native objects from the Paris auctions, but differed on the details on how best to accomplish the goal. Both sides took advantage of the pause to open up the dialogue about what an optimal STOP Act could look like when reintroduced, as Heinrich had committed to do. Two separate public discussions were hosted in Santa Fe this spring by the School for Advanced Research's Indian Arts Research Center and ATADA in order to engage their constituencies, air the issues that were dividing them and seek solutions.

A new and changed version of the STOP Act was introduced by Heinrich in June, which jettisoned two provisions of the original bill: a twoyear amnesty period for individuals who voluntarily return all of their illegally possessed cultural objects to the appropriate tribes, and a provision to direct the General Accounting Office to quantify the trafficking on illegal objects in a report.

10 pages of testimony

Riley submitted 10 pages of testimony in support of the new version of the STOP Act. Stating that "existing laws are not enough" Riley praised the STOP Act's international focus, "... where we have been the most powerless to gain the repatriation of our cultural heritage." His testimony states that "... foreign governments, including France, have consistently told the Pueblo and federal officials that they will not facilitate the return of our tribal cultural heritage because United States law does not explicitly prohibit its exportation."

Gregory A. Smith, Acoma's D.C. attorney and lobbyist concurs that this has been a sticking point.

"According to (the U.S. Departments of) State, Justice and Interior, the STOP Act is essential to securing the return of items from overseas. This is based on extensive discussions they have had with the French government, which, like others, does not see a real ban in U.S. law."

There is already a "smuggling law" on the books of US Customs law - 18 U.S. Code § 554 - that says: Whoever fraudulently or knowingly exports or sends from the United States, or attempts to export or send from the United States, any merchandise, article, or object contrary to any law or regulation of the United States, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such merchandise, article or object, prior to exportation, knowing the same to be intended for exportation contrary to any law or regulation of the United States, shall be fined under this title, imprisoned not more than 10 years, or both.

But because none of NAGPRA, ARPA or the Antiquities Act contain explicit export restrictions, the prevailing interpretation is that these laws cannot be used in conjunction with 18 U.S. Code § 554.

New law not a panacea

Nonetheless, Kate Fitz Gibbon, attorney for ATADA, does not think a new law will offer much of a panacea, writing about STOP via email that "it will do little to further the return of objects. It will have no impact on items already overseas, and is no more likely to be enforced in France than dozens of export laws from Africa, Asia and South America, which have no effect there."

ATADA is also concerned about consumer confusion. Fitz Gibbon wrote: "After 140 years of trade, how is a current owner to know if an object might be claimed as sacred by a tribe or claimed as coming from federal or Indian lands by the federal government?"

Riley's testimony addressed ATADA's concern, reminding the committee the protected objects are already defined in NAGPRA, ARPA and the Antiquities Act, and that as a practical matter, if anyone's confused, answers are available.

"It is paramount that, if collectors or dealers are unsure if an item quali fies as protected tribal cultural heritage, that they contact the tribe for more information."

Additional written testimony was entered into the hearing record from two other advocacy organizations: Global Heritage Alliance and the Committee for Cultural Policy (which Fitz Gibbon heads) that largely echoed concerns raised by ATADA. CCP offered suggestions to improve "the flawed legislation of the STOP Act" such as "legislation to moreefficiently bring objects and ancestral remains already under federal government control back to the tribes, to ensure adequate funding for National NAGPRA, to fund tribal culturaloffices," among others.

Finally, the bill creates a Tribal Working Group to be comprised of representatives of Indian tribes and Native Hawaiian organization to generally advise and make recommendations on related matters to the federal government, which Riley hopes "will lead to more collaboration."

The bill now moves to a mark-up and vote in the Senate Indian Affairs Committee and if passed out of committee, to a full Senate vote.

Sacred shield still not home

Meanwhile, the sacred shield that prompted the STOP Act's creation has not yet come home to Acoma.

"As recently as late September, the Department of Justice responded to further inquiries from the French government about the shield, so the matter of the status of the shield remains an active matter of discussions between the two countries," advises Acoma D.C. attorney Greg Smith.

Riley has described its status as "pending." His testimony to the Senate Indian Affairs Committee included this statement: "The Pueblo asks this Committee to not think of these sacred and ceremonial objects in property rights 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."