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July|August 2003
Second-Class Citizens By Chris Mooney
Ideology Matters By Katherine Marsh
For the Record By Nicholas Thompson
Is Everything Sacred? By Jori Finkel

Is Everything Sacred?

A respected art dealer is busted for selling a Cheyenne war bonnet.

By Jori Finkel

JOSHUA BAER, A SANTA FE ART DEALER, decided in the fall of 1997 that the Feds had gone too far. Armed with a 1990 law that prohibits commerce in some Native American artifacts, federal agents had seized about 200 works of art from the home of one of Baer's clients. Baer took out a two-page ad in American Indian Art magazine urging dealers and collectors to write their senators and demand fair play. Otherwise, he warned, these "fishing expeditions" would continue: "The American Indian art community is small. You, or someone close to you, will eventually be searched, and 'cultural patrimony' from your collection or inventory will be seized." Two years later, a fishing expedition reached Baer.

The Native American Graves Protection and Repatriation Act, commonly referred to as NAGPRA, is part of a larger push by the U.S. government to return art and antiquities to their rightful owners. The looting of the Iraq National Museum in Baghdad notwithstanding, American officials have exhibited growing sensitivity to cultural property issues. After signing the 1970 UNESCO Convention on Cultural Property, the United States entered into agreements with Mali, Nicaragua, and other countries to prevent their cultural treasures from being smuggled out and, when necessary, to ease their return. American courts have also facilitated the return of paintings by the likes of Monet and Matisse to descendants of Jewish families whose collections were taken by the Nazis.

What makes NAGPRA different, however, is that it subjects anyone who buys or sells Native American "cultural items" to fines and imprisonment. The UNESCO act has no criminal penalties, and individuals who seek the recovery of Nazi-looted art pursue their claims in civil actions. But dealers who traffic in Native American cultural items are increasingly landing in criminal court.

But what qualifies as a cultural item? And how can dealers of Native American art do their job, which involves finding and selling the most valuable objects available, without breaking the law?

BAER, NOW 50, STARTED OUT AS A COLLECTOR. After graduating from University of California, Santa Cruz, in 1974, he ran a successful wholesale rare coin business in the area. He was soon buying Navajo blankets and rugs for his personal use. Back then, the textiles were new to the market and affordable; decorators across the country had not yet discovered their earth-tone colors and bold stripes. Baer snapped up enough Navajo rugs to fill a gallery.

After moving to Santa Fe, he set up shop in 1988 near the Plaza, a picturesque square lined with adobe buildings. The Plaza is the commercial center of the city and also the heart of the country's trade in Native American art. At one end of the Plaza, craftsmen from Native American pueblos spread out blankets filled with contemporary Jemez pottery, Hopi wooden dolls, and Santo Domingo turquoise jewelry. Meanwhile, just a few blocks away, leading galleries like Morning Star Gallery and Dewey Galleries compete for wealthy clients with 19th-century versions of some of the same things. In the 1980s and '90s, business was booming. While galleries don't disclose profits, annual sales of Native American art at the auction houses of Christie's and Sotheby's peaked at $10 million in 1998.

By that time, Baer had established himself as one of the country's leading experts on Navajo art, with three books to his name. He could tell the difference between a double saddle blanket made by Navajo weavers in the 19th century and a knock off made in Mexico today. He could also tell a good story, whether describing the tribe's tradition of sand painting, which involves creating and then destroying an illustration in the sand, or explaining the myth of the Spider Woman, who is said to have taught Navajo women how to weave. Over the years, he built an enviable customer base, including Steve Jobs, Ralph Lauren, and other celebrities drawn to the American Southwest.

UNFORTUNATELY FOR BAER, two of his best clients turned out to be undercover agents. In August 1999, Robert Wittman, an FBI agent from Philadelphia, and Ivar Husby, an agent with the Norwegian National Bureau of Investigation, stopped by the gallery for the first time. Wittman introduced himself as an art broker from Philadelphia. Husby played his client, a wealthy Oslo businessman who was just starting to collect Native American art. They toured Baer's gallery and found what they were looking for: a pair of $10,000 wooden parrots from a Hopi altar.

The parrots had been spotted by Lucinda Schroeder, a special agent with the Fish and Wildlife Service, who ran the sting. She had visited various Santa Fe galleries to sniff out illicit activity. She became suspicious when she saw the parrots, but did not buy them. "The person I was posing as wouldn't have had that kind of money," she said. "So I sent Husby and Wittman in, because they could aim at the right level."

They aimed high. Husby, who sported a $10,000 Rolex, let it be understood he was worth $40 million and that he had holdings in oil, gas, and software. He said that he collected tribal art from Africa and Norway. "Husby had the tycoon manner down," recalled Baer. "In Las Vegas they'd call him a whale: someone with huge amounts of money who has impulsive rather than methodical tastes. Someone you could sell a lot of art to if you caught him on the right day."

Wittman, one of the FBI's top specialists on art theft (who was reportedly sent to Iraq to investigate the looting there), was even more convincing. He talked with Baer about art, food, and wine, and the two men clicked. Baer invited Wittman to his home for dinner with his wife. Wittman offered Baer's daughter, who was attending college back East, a place to stay in Philadelphia if she ever needed a break. "Wittman talked and acted like a dealer," Baer said. "We connected on a lot of different levels."

In the high-end art world, where six-figure deals are routinely sealed with a handshake, trust is paramount. Baer trusted Wittman. He trusted him enough to offer, over the course of five months, some $385,000 worth of potentially illicit goods—including an 1885 beaded Cheyenne war bonnet containing golden eagle feathers; an 1850 Santa Domingo kachina, a doll that represents a spirit; a Kiowa ceremonial shield made of wood and painted canvas; five Navajo musical instruments known as bullroarers; seven Navajo prayer sticks used in healing ceremonies; and an assortment of Jemez and Navajo hair ornaments that came from warrior headdresses. Wittman promised to return to the gallery to buy the items.

NAGPRA WAS PROPOSED BY SENATORS Daniel Inouye of Hawaii and John McCain of Arizona and was designed to give Native Americans control of their cultural heritage. "In the 1970s and '80s, there was a growing consciousness of the mistreatment of Native American tribes by the American government," said Patty Gerstenblith, a law professor at DePaul University in Chicago. "NAGPRA was the government's attempt to right the wrongs."

The law has three basic parts. One section prevents the excavation of Native American graves on tribal and federal lands and calls for the return of ancestral remains, burial objects, and other "cultural items." This section was invoked in the case of the Kennewick man, a more-than-9,000-year-old skeleton found in Washington State that inspired a fierce custody battle between Native American tribes and U.S. scientists. Another section requires federally funded museums and agencies to catalogue cultural items in their collections and to share these lists with the appropriate tribes so they can ask for the return of the items. A third section prohibits individuals from buying or selling cultural items, which encompass sacred objects and cultural patrimony.

The statute defines "sacred" items as "specific ceremonial objects" needed in religious practice. It defines "cultural patrimony" as objects with "ongoing historical, traditional, or cultural importance" to a Native American group. Critics say these definitions are too general to help dealers distinguish between legal and illegal goods.

Other laws specify which objects they cover. A 1997 memorandum between the United States and Peru lists the categories of pre-Columbian artifacts that cannot be exported. Mexico's export laws are even more straightforward, identifying a handful of artists, such as Diego Rivera and Frida Kahlo, whose work cannot leave the country. By contrast, NAGPRA provides no examples of prohibited objects.

It has thus fallen to federal courts to give shape to the statute. In two key precedents, U.S. v. Corrow in 1996 and U.S. v. Tidwell in 1997, art dealers were convicted of trafficking in cultural patrimony. Both dealers appealed on the ground that the statute is unconstitutional because it is too vague to put them on notice that they were engaging in criminal acts.

A dealer based in Scottsdale, Ariz., Richard Corrow, was convicted of selling 22 Yei B'Chei, or Navajo masks, which he had purchased from the widow of a medicine man. He argued that there was nothing about the masks to indicate they were cultural patrimony. On behalf of the government, a medicine man countered that the Yei B'Chei, which are worn in religious ceremonies, are considered deities. They represent the "heartbeat" of the Navajo people and must remain within the geographic boundaries of the tribe. "We don't call them masks, we call them Gods," he testified. Corrow was sentenced to five years of probation.

Rodney Tidwell, a low-level dealer in Arizona, was convicted for selling a set of Acoma priest robes and Hopi masks similar to the Yei B'Chei. His alleged partner, a Native American man who was also indicted under the act, committed suicide before the trial. Tidwell argued that he could not know the items were protected, because the tribes provide no written record of what constitutes cultural patrimony. He was sentenced to 33 months in prison.

The Corrow court noted that the dealer had told the widow who sold him the masks that he intended to pass them on to another medicine man—suggesting that he knew the items were too sacred to sell. "This is not the case of an unsuspecting tourist . . . innocently purchasing the set of Yei B'Chei," the court ruled. The Tidwell court pointed out that the dealer had enough expertise to recognize the cultural significance of a work of Native American art and to know that he was acting illegally.

But critics maintain that the law violates the Constitution because an ordinary person reading the statute would not know which goods are illegal. What's worse, they claim, the government has shored up a weak law by engaging in discriminatory enforcement. Corrow was prosecuted; the widow who sold him the Yei B'Chei was not. Full-time suppliers are prosecuted; part-time collectors are not.

AFTER MONTHS OF NEGOTIATION, Baer and Wittman set a date in January 2000 to consummate their deal. Wittman didn't show up for the appointment. Instead, seven other agents arrived with a search warrant. They grabbed stacks of client files and nearly a dozen Native American artifacts, including objects that Baer was holding for the agents.

Two days after the raid, Baer e-mailed Wittman: "I don't know what to say. 'Well done'? 'Nice work'? 'You sure had me fooled'?" Wittman responded the next day. "This was the toughest case I ever had because I truly like you and your family," he wrote. He encouraged Baer to pay attention to his attorney and move on with his life.

Baer was charged with violating the Native American Act. He was also indicted for selling objects that contain feathers protected by the Migratory Bird Treaty Act. "I should have known better when it came to the material with eagle feathers—I was having financial problems at the time," Baer said. But, in his view, NAGPRA is a far more complicated issue.

Initially, Baer says, he supported Native American tribes in their efforts at repatriation, out of respect for their cultural history. In 1998, Baer returned to the Jemez tribe, some 70 miles southwest of Santa Fe, a large wooden kachina and a "lightning stick," a zigzag wooden staff that symbolizes the powers of the earth. What he objects to, however, is NAGPRA, and the way it allows the courts to determine what constitutes cultural patrimony after a sale. Because judges rely on Native American witnesses, he said, "courts are letting a tribe's medicine man make the 'ceremonial' designation after the object has been seized by law enforcement and shopped to the tribe."

The fact that some Native American artifacts have multiple, even competing functions makes the law even harder to interpret. Take the bullroarers. Shaped like a knife, a bullroarer makes a humming noise when it is swung. During Navajo religious ceremonies, a medicine man wields the bullroarer, slicing it through the air to create an opening that allows the Yei B'Chei to enter the physical world. As Schroeder, the U.S. Fish and Wildlife agent, puts it, "They are considered communal property of the Navajo Nation." But bullroarers are also used for more banal purposes. Kids play with them to make music. "Between Albuquerque and Tuba City, you could buy bullroarers all over the place," Baer's attorney, Peter Schoenburg, said. "And they wouldn't be considered cultural patrimony."

What Schroeder and Schoenburg are struggling to pin down is not just the meaning of a word—what is sacred—but a culture. In Judeo-Christian communities, the sacred is defined in relation to its opposite, the profane. But in Native American culture, this dichotomy doesn't exist. "Spirituality or religion infuses every part of Native American life," Schoenburg said. "Does that make every type of object, including a Navajo rug, sacred? Is everything up for grabs?"

This, art dealers say, is their biggest fear—that NAGPRA's net will eventually catch the entire Native American art trade. They worry that the time may come when they will no longer be able to buy or sell Native American art.

For now, though, a few dealers continue to offer Native American art, including Baer. After his lawyer failed to get his case dismissed, Baer pleaded guilty to three counts of NAGPRA and six counts of the Migratory Bird Treaty Act. Under federal sentencing guidelines, he should have received at least one year in prison. Instead, Judge John Edwards Conway sentenced him to three years probation and 100 hours of community service, to be spent educating the public about the statutes he violated. As the judge declared, "This is not my favorite statute, so I'm not going to put him in jail."

Jori Finkel is a senior editor at Art & Auction magazine.

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