In the mid-1970s, someone burgled a home at Sky City, the ancestral, mesatop village of the Acoma people, and removed a ceremonial shield in violation of Acoma law. Decades later, that shield reappeared in a Paris auction house for sale to the highest bidder, having been recently shipped there, according to the French authorities, from an undisclosed person in the American Southwest.
For Acoma, the shock of the theft of the shield was greatly compounded by its subsequent offer for sale and publication of its image on the Internet. Unfortunately, this was nothing new. Acoma had previously, but unsuccessfully, fought the auctioning of sensitive tribal cultural patrimony in the French court system, as have several other tribes.
As a rule, tribes do not discuss culturally sensitive matters in public. There are spiritual reasons for this, as well as a deep-rooted concern regarding cultural appropriation and the market-based effect of a tribe publicly validating the significance of an item. This reticence, however, makes it difficult to recover certain items. Acoma, after internal discussions, realized that if the French courts were not going to be of assistance, additional actions were needed to address popular misconceptions about the nature of certain sensitive items of tribal cultural patrimony. As the image of the shield was already spread across the Internet (but not to be repeated here), Acoma decided, without revealing sensitive cultural knowledge, to take on the public perception of Native culture and to do whatever Acoma could do to get the shield returned to the pueblo.
Public Perceptions of Native Culture
Popular culture plays an enormous role in “normalizing” behavior that in another context would be obviously outrageous and immoral. For people of a certain generation, the opening scene in Raiders of the Lost Ark, where Indiana Jones enters a jungle temple, steals a golden figurine, while avoiding various booby traps, including a hall of arrows and a giant rolling boulder, is one of the most iconic in all of film. On its face, it was evident that the builders of the temple did not want that figurine disturbed, much less stolen, but audiences were thrilled by the fun of it all. It is more than ironic that this scene was directly inspired by Scrooge McDuck, who was originally conceived as a greedy miser in the vein of his own namesake, Ebenezer Scrooge, from Charles Dickens’s work, A Christmas Carol. In The Seven Cities of Cibola, Scrooge, his nephews, and the Beagle Boys find an “idol” in a cave. Just like Indiana Jones, the Beagle Boys disturbed the “idol,” releasing a giant rolling boulder. The popular exploitation of indigenous culture has a long, romanticized history, closely associated with imperial or colonial expansion. After Howard Carter discovered the tomb of King Tutankhamun in 1908, there was an explosion of interest in Egyptology, in general, and mummies, in particular. For instance, scientists and others organized public unwrappings of mummies, turning desecration into spectacle. Today, the British Museum has over 120 human mummies in its collection, with a number on display. When those individuals were buried, it was with the belief that their bodies would lie undisturbed; not that they would be exhumed and possibly unwrapped and displayed for millions of tourists to see every year. If the ancient Egyptians were alive today, they would be marching in outrage outside the British Museum and most readers of this magazine would rally to their cause. For Native Americans, that outrage is not theoretical but rather very present and very real. Sad examples are the Internet auctions that regularly display pairs of beaded moccasins showing little or no wear. Tragically, most of these shoes were interred with the dead and meant to be used in the afterlife, not to become items of commerce.
There have been efforts, especially since the 1990s, to bring attention to the destruction or theft of items of cultural heritage, with numerous conferences and a growing body of literature. Some of this has been spurred by indigenous protests around the world. Much of it has arisen in reaction to extraordinary acts of destruction, such as the demolition of the Buddhas of Bamiyan by the Taliban or the looting of the ancient city of Palmyra by ISIS.
In the case of the Bamiyan Buddhas, the Taliban took the view that they belonged to the Talibani government and that it could do with them as it pleased. In 1999, Mullah Mohammed Omar, the leader of the Taliban, actually issued a decree in support of their preservation. His reasoning was that because there were no Buddhists left in Afghanistan (what happened to them?) the statues were no longer being worshipped and so there was no affront to Islam. He reportedly added that: “The government considers the Bamiyan statues as an example of a potential major source of income for Afghanistan from international visitors. The Taliban states that Bamiyan shall not be destroyed but protected.” Despite this theological view and the perceived economic advantages of protecting the statues, Mullah Omar reversed himself and the statues were largely destroyed in 2001.
Another example of cultural exploitation and appropriation are the Elgin Marbles, also known as the Parthenon Marbles, held by the British Museum. The Parthenon was completed in 438 B.C. adorned by sculptures, panels, and a large frieze. After 2,200 years gracing the Parthenon, many of these were removed by Lord Elgin (between 1801–1810), who claimed to have “bought” them from the Ottoman Empire. In 1816, they were acquired by the British Museum, where they are displayed today. The British Museum argues, among other positions, that the Marbles are so important that they belong to world culture and so are not the property of Greece and, further, that it is best if they remain on display at the British Museum, where they will be viewed by people from around the world. A similar argument has been made in the United States about important Native American materials. This selfserving argument dismisses the value of returning the Marbles to Athens, and thus placing them within the context of the Parthenon itself, while at the same time acknowledging and respecting their central importance to Greek culture.
During the 1800s, in the name of science (and sometimes profit), expeditions were launched to collect Native remains and Native artifacts from across the United States, including from burial sites and battlefields. In time, American museums and universities came to hold tens of thousands of Native remains and hundreds of thousands of cultural items. From the Native perspective, this pillaging and ransacking of Indian Country had devastating spiritual and cultural consequences that are still being felt today.
Native peoples saw echoes of this history in the fight over the remains of “Kennewick Man,” whom they called the “Ancient One.” The remains of Kennewick Man were found on a bank of the Columbia River in Washington state in July 1996. One of the most intact ancient skeletons found in the Americas, it was dated back approximately 9,000 years. In response to its discovery, the Umatilla and other tribes sought the return of the remains, in accordance with the Native American Graves Protection and Repatriation Act (described below), so they could be reinterred in a manner consistent with tribal traditions and beliefs. However, the scientists involved in examining the remains quickly declared, based on an analysis of the features of the skull using a technique straight out of the nineteenth century, that the remains were not associated with modern Native Americans, but rather were Polynesian or Southeast Asian in origin. In the early 2000s, genetic analysis was not sufficiently advanced to analyze such ancient DNA and, after much litigation, the Ninth Circuit Court of Appeals, in 2004 ruled that a cultural connection to modern Native American tribes could not be proved, and so scientific study could continue and the U.S. Army Corps of Engineers would remain the custodian of the skeleton. However, over time, DNA techniques improved and the remains were subject to advanced DNA analysis. This led a team of Danish scientists to announce in June 2015 that the remains were most closely linked to living Native Americans, including those in the Columbia River region where they were found. Armed with this scientific validation of their cultural knowledge and belief, the related tribes took their fight to Congress, and in 2016, Congress directed the return of the remains to tribal control. The Ancient One was reinterred by the tribes in February 2017 at an undisclosed location, in accordance with traditional beliefs and practices.
Native American Graves Protection and Repatriation Act
Perhaps it is difficult to answer the question of what we owe the ancient Egyptians, but it should not be so difficult to answer that question for living Native peoples. Significantly, the United States does provide protection for certain Native human remains, funerary objects, sacred objects, and cultural patrimony through the Native American Graves Protection and Repatriation Act (NAGPRA, 25 U.S.C 3001–3015, 18 U.S.C 1170), passed in 1990. NAGPRA establishes procedures and legal standards for the repatriation to Indian tribes, Native Hawaiian organizations, and lineal descendants of covered remains and cultural items when located on federal lands or held by federal agencies and federally funded museums, educational and other institutions, and state and local governments. Of course, this is good. If we believe that the law should reflect societal values, then NAGPRA reflects an understanding that the cultural items it covers properly belong with certain Native caretakers. And yet, this law only applies to the federal government and federally funded institutions and is tied to objects taken from federal and tribal lands. This value has not been extended to the many remains and sensitive items held in private hands or obtained from private lands, in which circumstance the respect for tribal beliefs is secondary to deference to the popular view of private property rights. Although tribes do not agree with this outcome, they often request that private holders of this patrimony contact them to determine their proper disposition and return them when that is appropriate.
As part of a far-reaching statement on the rights of indigenous peoples, the United Nations General Assembly adopted in 2007 the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). A small number of countries, including the United States, voted against UNDRIP; however, with some qualifying statements, the United States affirmed UNDRIP in 2009. UNDRIP addresses cultural resources in relevant part:
…Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources,
1. Indigenous peoples have the right to practice and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature.
2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
1. Indigenous peoples have the right to manifest, practice, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains.
2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.
Although international norms support the restoration of ceremonial objects and human remains to indigenous peoples, federal law has not kept up. Ironically, the United States, recognizing that we are a market country for stolen cultural material originating outside the United States, has strict laws to prevent the importation of stolen cultural heritage from other countries. In some respects, the United States has led the way in global efforts to end illegal trafficking in cultural heritage of other nations. However, the reverse is true as to cultural material originating from the United States. United States’ law lacks explicit export restrictions that would curb illegal trafficking in Native American cultural heritage.
Indian Country Takes a Stand
With the Paris auction scheduled for May 30, 2016, Acoma coordinated with various federal agencies, including the State, Interior, and Justice Departments, to hold a press conference on May 25, 2016, at the National Museum of the American Indian in Washington, D.C. Several major Indian organizations were involved, including the National Congress of American Indians, the oldest and largest Native organization, the American Association on Indian Affairs, whose Working Group on International Repatriation has been a leader in this area for years, and the National Association of Tribal Historic Preservation Officers, representing the historic preservation officials for scores of tribes. In addition, the Hoopa Valley Tribe sent representatives, and Acoma’s congressman, Stevan Pearce (R-New Mexico), presented on the resolution he introduced in Congress on this issue (discussed below).
The press conference was opened by the museum director, Kevin Gover (Pawnee), who noted that: “This museum was established in 1989. As part of our authorizing legislation, as enacted by the Congress, the Smithsonian was directed to return to the Native nations of the United States, certain items that were within our collections. That included human remains . . . and it included sacred objects. . . . Unfortunately, the reach of the laws of the United States ends at the borders.”
A Legislative Strategy
Out of Acoma’s effort to seek the return of the shield emerged a strategy: first, to raise awareness and lobby Congress to pass the joint House-Senate resolution condemning illegal trafficking in tribal cultural patrimony introduced by Representative Pearce; second, to seek court action ordering the seizure of the shield; third, to secure reliable data by having Congress direct the Government Accountability Office (GAO) to conduct a study and prepare a report on this issue; fourth, to seek an increase in funding for the Bureau of Indian Affairs (BIA) (Interior Department) law enforcement specifically designated to address cultural property crimes and implementation of NAGPRA; and, finally, change federal law to create an explicit export ban on items obtained illegally under NAGPRA, the Archaeological Resources Protection Act, and the Antiquities Act, thereby strengthening the hand of the United States in negotiations for return of items with foreign countries. As described below, four of these five goals have been accomplished, while work continues on the fifth.
Joint Congressional Resolution
Rep. Pearce introduced the “Protection of the Right of Tribes to Stop the Export of Cultural and Traditional Patrimony Resolution,” or the “PROTECT Patrimony Resolution.” This resolution soon had 16 cosponsors, including two who are now senior officials in the Trump administration: Interior Secretary Ryan Zinke and Office of Management and Budget Director Mick Mulvaney. A similar resolution was introduced in the Senate by Senator Tom Udall (D-New Mexico), who was joined by his fellow New Mexico Senator Martin Heinrich (D-New Mexico), as well as Senators John McCain (R-Arizona) and Lisa Murkowski (R-Alaska). The joint resolution became effective on December 1, 2016.
The PROTECT Patrimony Resolution condemned the theft and illegal sale and export of tribal cultural items; called upon key federal agencies to consult with Native Americans, including traditional Native American religious leaders, to address ways to stop illegal conduct and secure repatriation of tribal cultural items to Native Americans; supported the Comptroller General of the United States, who heads up the GAO, in determining the scope of illegal trafficking and the steps needed to secure repatriation; explicitly supported restrictions on export; and encouraged all levels of government to work together on these issues. (Note that the PROTECT Patrimony Resolution specifically references supporting resolutions from the National Congress of American Indians, United South and Eastern Tribes, Inc., All Pueblo Council of Governors, and the Inter-Tribal Council of the Five Civilized Tribes.)
Federal District Court Action
Even as legislative work was being done, the U.S. attorney for New Mexico sought a court order calling for the seizure of the shield. On August 31, 2016, a federal district court judge issued a warrant for arrest in rem for the shield. (Acoma was represented in this matter by coauthor Ann Berkley Rodgers, and by Aaron M. Sims, an Acoma member, both of Chestnut Law Offices, Albuquerque, New Mexico, which serves as general legal counsel to Acoma.) The U.S. Department of Justice also invoked a mutual legal assistance treaty with France to secure support from French authorities in the investigation of the shield and to prevent its sale.
Government Accountability Office Report
In addition to the language in the PROTECT Patrimony Resolution calling on the Comptroller General to study this area, the chairman of the House Judiciary Committee, Bob Goodlatte (R-Virginia), the chairman of the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations, James Sensenbrenner (R-Wisconsin), and Acoma’s congressman, Steve Pearce, requested that the GAO look into the federal effort in this area and the scope of the market in illegally trafficked Native American cultural items. The GAO agreed to this request and, as of the writing of this article, is actively researching this issue with a report likely to be issued by summer 2017. Such a report will further facilitate the development of federal legislation. (Note that the effort to seek the return of sensitive items is not just focused on a legal approach, but also has an important relational dimension. For example, the Antique Tribal Arts Dealers Association recently launched an initiative to encourage the voluntary return of sensitive materials. This initiative includes educating collectors and dealers, assisting them in identifying sensitive objects, and facilitating a dialogue with tribes about when such items should be returned.) Through building better relations, dealers and collectors can deepen their appreciation for the items in their care and tribes can secure the return of those items that properly should be back home with them.
Funding for Expanded Cultural Property Law Enforcement
The tribal coalition advocating for stronger federal protections for cultural patrimony also sought funding for expanded law enforcement activities by the BIA related to NAGPRA. The House Appropriations Committee agreed and included the following language in its FY 2017 appropriations bill:
The Committee recommends $1,000,000 to support the development of a Cultural Items Unit within the Division of Law Enforcement tasked with investigating violations of the Native American Graves Protection and Repatriation Act (NAGPRA) (25 U.S.C. 3001 et seq.), and related law. Although domestic laws such as NAGPRA can be enforced to address the theft of tribal cultural items with both criminal and civil penalties, without active Federal support, tribes are left only to do what they each can independently afford to do to stop the theft and sale of their cultural items. Therefore, the Committee supports the BIA in developing the capacity to coordinate investigations of violations of NAGPRA and related law.
Subsequently, the House and Senate reconciled their appropriations bills into the FY 2017 Omnibus Appropriations, where this language was strengthened from a recommendation to a direction providing expressly for a “$1,000,000 program increase to implement the Native American Graves Protection and Repatriation Act” in the BIA Law Enforcement budget.
Safeguard Tribal Objects of Patrimony (STOP) Act of 2016
Also in the last Congress, legislation was introduced in both the Senate and the House to create an explicit export ban on certain items of tribal cultural patrimony. This legislation, sponsored by Senator Heinrich (D-New Mexico) along with eight cosponsors, was the subject of a Senate field hearing in Albuquerque in the fall of 2016, but did not advance further in the last Congress. The House sponsor of the STOP Act of 2016 was Rep. Ben Ray Lujan (D-New Mexico), with Rep. Michelle Lujan Grisham (D-New Mexico) as a cosponsor. A revised version, based on comments from various sources, was introduced in the Senate on June 21, 2017.
Who Stole the Acoma Shield?
It is easy to say that an individual stole the Acoma shield, but that is not the ultimate truth. Rather, it was stolen by a system of beliefs and values which denigrated the shield’s purpose and existence as intended by its creator. The larger society considered it principally as an art or historical object or a curiosity with a determined monetary value. The villains in this tale are Indiana Jones, American and European scientists, a consuming public, museums and universities, Wild West pulp fiction novelists, and a market that values objects that are “authentically” sacred or ceremonial. In the end, who stole the Acoma shield? If we take a deeper look at our culture, we might come to realize that we all did.
Gregory A. Smith is a partner in the Washington, D.C., office of Hobbs, Straus, Dean & Walker, LLP, a law firm dedicated to the representation of tribes and tribal organizations.
Ann Berkley Rodgers is a member of Chestnut Law Offices, P.A., which represents Pueblo Tribal governments and businesses. Her areas of practice are primarily water, land, and cultural resources.