Regulations for Native American 'artifacts' auctions may still be too lax

 

Two weeks ago, a Lakota sacred object advertised as a "Sioux Beaded and Quilled hide Shirt" was set to be auctioned off in Boston, Mass. and was expected to fetch $150,000-250,000. Minutes before the bidding began on Nov. 9, Skinner auction house pulled the item in response to pressure from attorneys and tribal officials representing a family on the Rosebud reservation in South Dakota who said the shirt belonged to their ancestor, Little Thunder.

“I cried when I found out they had stopped the auction,” said Karen Little Thunder, the soft-spoken great-great-granddaughter of the Lakota leader. Though greatly relieved, she is left with unsettling questions. “What if it was taken from my grandfather’s grave?”

But the collector who consigned the item, identified as “Derby” in the catalog listing, said that he had “good title” to the shirt, proving he had acquired it legally. Reached by phone, Skinner director Douglas Diehl would not discuss the matter but released a statement through the auction house’s PR company saying Skinner “is committed to the highest standards of research and due diligence for all items offered at auction and is particularly sensitive to Native American artifacts.” It decided to pull the item, according to the statement, because a recently discovered photograph that shows a man identified as Little Thunder wearing the shirt surfaced, and Skinner was not able to disprove its legitimacy.

Little Thunder, a leader among the Lakota people, pictured here in 1860. A shirt that may have belonged to Little Thunder was recently pulled from an auction when the seller's legitimacy was called into question.

Trade in Indian artifacts is as old as European settlement in North America. It’s often called “pot hunting” in the Southwest, where vividly decorated ancient Anasazi pottery can fetch into the hundreds of thousands. These activities still go on today, though they’re mostly illegal now. Rampant grave looting led to a series of laws passed in 1906, 1966, 1979 and 1992 that forbid the taking of Native American artifacts from federal land.

The 1990 federal Native American Graves Protection and Repatriation Act (NAGPRA) requires the return of all Native American remains found on federal lands to tribes that request them. Under the law, “anyone who sells, buys, or, like an auction house, earns a profit from the sale of communally owned or sacred Native American items in violation of the law can be fined or imprisoned for up to a year,” according to NAGPRA expert Timothy McKeown with the U.S. Department of the Interior.

Yet enforcement of NAGPRA is lax. The Bureau of Indian Affairs is largely responsible for enforcing the law, but the agency’s role is “ambiguous and remains unsettled,” according to a Government Accountability Office report; and while the agency started tracking compliance in 1997, “it has not yet been completed due to staff turnover and lack of resources.”

The Sioux Shirt is only one example of Native American “artifacts”– the term can be offensive to tribal members who hold such items sacred – that have shown up on the auction block recently. In April, a huge lot of Hopi visages were auctioned in Paris, despite pleas from the tribe and the DOI to return them to the Hopi. In the end, the buyer returned the visages to the tribe.

What makes the Sioux Shirt case particularly heart-wrenching, the Little Thunder family members say, is their ancestor’s important place in tribal history. Little Thunder was a leader among the Lakota people, a man who had both war and civil responsibilities, evidenced by the strands of human hair (acquired in battle or perhaps given to him by family members) affixed to the shirt. He was a contemporary of the legendary Lakota warrior Crazy Horse, who was a teenager in the 1850s when Little Thunder was already a grizzled leader and veteran of many battles, including one that crippled him. In a rare photograph that dates from around 1860, he is pictured with a cane and his legs are noticeably bowed, the result of injuries sustained the 1855 massacre at Blue Water Creek in Ash Hollow, Nebraska.

Given its historic significance, the shirt would be considered under NAGPRA as an “object of cultural patrimony.” Attorney Bob Gough, who represents the Little Thunder family, likens it to the Liberty Bell in Philadelphia or the Brooklyn Bridge, which, he says, “are properly seen as being a part of this nation's history and culture, to be owned and held by us and by generations yet to come. Sale of these things by a present-day caretaker would not be considered legal.”

The next step, said Karen Little Thunder, is for her family to “reach out to the Derbys,” the family that consigned the shirt to auction. (The Derbys said they could not elaborate or tell their side of the story for this article, until certain legalities were worked through.)

Meanwhile, advisors close to the case say it’s important to build legal precedents to butress laws protecting Indian artifacts. There are millions in private collections and repositories throughout the world.

Gough said he would not pursue legal action against either the Derbys or the auction house. Both families have been “keepers” of the shirt for a period of time and so are forever intertwined, he said, but “now it is time for the shirt to come home.”

Leslie MacMillan is a contributor to High Country News. She tweets @leslieannmac.

Timothy McKeown
Timothy McKeown
Nov 18, 2013 01:42 PM
Timothy McKeown's statement in this article is based on his personal expertise with NAGPRA and is not an official opinion of the U.S. Department of the Interior.
Bob Gough
Bob Gough
Nov 18, 2013 02:06 PM
No direct legal action will be pursued provided the shirt is returned to the Little Thunder Tiospaye.
Leslie Macmillan
Leslie Macmillan Subscriber
Nov 18, 2013 04:28 PM
I want to expand on a point I raised about the Paris auction of Hopi visages: while a few of the visages were returned, the majority are still out there. There were 70 total put up for auction of which most (but not all) were sold. The Paris-based attorney for the the Hopi bought one and has returned it to the tribe. The Joe Dassin Foundation bought another with the expressed purpose of returning it, though it's unclear whether this has yet happened. A NYC-based buyer was quoted by name in an article saying they shouldn't be returned to the tribe, but subsequently had second thoughts and gave both back to the Hopi.
Deb Dedon
Deb Dedon Subscriber
Nov 19, 2013 03:50 PM
What if the 'artifact' in question is a copy? Or a similar shirt but not THE shirt? Any 'artifact' that has market value far in excess of its production cost is like oxygen to the fire of forgery.

Native American
Native American
Nov 20, 2013 08:40 PM
Sounds pretty sketchy to me, where is the hard evidence. If I wanted to scam someone out of a valuable object this would be a great tact to take. I am pretty sure my family once owned some great and valuable land in the early 1800’s. I should go say that that land was important to my family and try to take it from the current owners. I am sure that they would respect my right to the land if I said I "recognized a photo of the land from a photo that I saw”. Had no empirical evidence but decided that I should make a claim to it! Really! By the way the law Nagpra only applies to objects found after 1990. Really people! Looking at that photo, I can't even see the shirt in question, how could anyone tell?
Timothy McKeown
Timothy McKeown
Nov 21, 2013 08:19 AM
Point of clarification to "Native American": The Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 has three separate components. One applies to the excavation or discovery of Native American cultural items from Federal or tribal lands after 1990. A second component applies to any Federal agency or museum (defined as an institution receiving Federal funds after 1990) that has possession or control of Native American cultural items. The third component is a criminal law that precludes selling, buying, or using for profit any Native American human remains after 1990 without right of possession or any Native American cultural item obtained in violation of the Act. While 1990 is an important date, it applied differently for each section.