Grave Injustice

Federal laws about burial remains put politics before science.

Steven Vincent from the July 2004 issue

(Page 3 of 3)

The only authorities are Indians themselves. As one leading Santa Fe dealer moans, "The government will ask Indians, 'Is this important to your tribe?,' and of course they'll say yes in order to get possession of the objects. Next thing you know, they're putting it back on the market." Perhaps even more troubling, by relying on the subjective judgment of tribal leaders, government agencies edge closer toward a relationship with Native American spirituality that violates the constitutional separation of church and state.

Tribal art dealers stay on the right side of the law by avoiding human remains, objects known to be deemed sacred (such as tribal masks), and anything containing the feathers of eagles and other birds protected by law. At the same time, dealers handle only artifacts they know have come from private collections, since NAGPRA's jurisdiction over Native American objects is limited to those that originate from federal or tribal lands. But some observers worry that even this affirmation of private ownership is eroding. "Although the law was originally intended just for museums," says Albuquerque's Robert Gallegos, one of the few dealers unafraid to publicly criticize NAGPRA, "federal agencies are trying to make it apply in the private sector."

In the early 1990s this fear was palpable among dealers in the southwest. Back then there were stories of raids by a joint task force that included agents from the FBI, the Bureau of Land Management (BLM), the Bureau of Indian Affairs, and the National Park Service, among others. This task force would storm into even the most respected Santa Fe businesses looking for contraband "as if we were crack houses," in one dealer's words. The feds disbanded the task force in 1992, but a BLM spokesman defended the agents' actions at the time: "For years dealers have had a free hand in illegally trafficking Native American artifacts...so of course they're going to complain and spread accusations against us." These days, dealers say, NAGPRA enforcement has eased up. Unchanged, however, is the government's dismissive attitude toward dealers' concerns. For example, when I asked a spokesman for the U.S. attorney in New Mexico about the trade's criticisms of NAGPRA, he replied that he didn't know of any negative comments. After hearing a list of complaints about the law and its enforcement, he scoffed that "somebody's fed you a lot of paranoia." Dealer Gallegos thinks that paranoia is just the point. "The government wants dealers to get paranoid about the law," he says. "They want us to become so afraid of NAGPRA that we voluntarily stop trading in this field and don't challenge the law in court."

In the view of Gallegos and others, the feds will often bundle a NAGPRA violation together with court-tested laws such as the MBTA. "But prosecutors will get the dealer to plead guilty to NAGPRA," Gallegos adds. "In this way, they build legal precedents to buttress NAGPRA, while spreading a climate of fear through the dealer community."

The Sting

This strategy is what many observers believe lay behind the government's sting operation against respected Santa Fe artifact dealer Joshua Baer, perhaps the most alarming private-sector application of NAGPRA so far. The case began in August 1999, when Baer was approached by an art dealer named Bob Clay. Clay told Baer he was representing a wealthy Norwegian collector named Ivar Husby who was interested in buying some first-rate Indian artifacts. In fact, Clay was undercover FBI agent Robert Whitman and Husby was an agent of the Norwegian National Bureau of Investigation. During the next 16 months, Baer did some $40,000 worth of business with the two men, as they wormed their way into his confidence. In September 1999, the agents expressed interest in purchasing items from the dealer's personal collection. Baer at first declined, noting that the objects contained eagle feathers, which the MBTA forbade him to sell.

The agents persisted in their requests, with Husby threatening to terminate future business dealings. In need of cash -- his gallery was suffering financial difficulties -- Baer relented under the pressure and offered Husby more than a dozen Indian artifacts from October 1999 to January 2000. Federal agents raided Baer's gallery in January 2000, confiscating artifacts and business records; in October 2001, he was indicted for violating NAGPRA and the MBTA.

"This was a classic abuse of the law, when cops enforce a vague statue and make criminals out of people," says Albuquerque lawyer Peter Schoenburg, who represented Baer in the case. "How do you define what's sacred to Indians? The traditions are secretive, sometimes contradictory, and tribes refuse to write them down. Take the Navajo bull-roarers, for instance -- Navajos will say some, none, or all the bull-roarers are sacred. How is anyone to know?" (A bull-roarer is musical instrument consisting of an oval piece of wood attached to a lasso.) Even worse, Schoenburg argues, was the way the two agents manipulated Baer. Agent Whitman actually became a close friend of the Baer family, writing to the dealer soon after the raid on his gallery: "I've been doing this all over the world for a long time. This was the toughest case I ever had because I truly like you and your family." Schoenburg filed a motion arguing that the agents' behavior constituted entrapment, but the court dismissed it.

In September 2002, Baer pleaded guilty to six charges of violating the MBTA and three charges of violating NAGPRA, crimes that carried a maximum penalty of 10 years in prison. But Judge John Edwards Conway sympathized with the dealer, noting at Baer's sentencing that many of the types of objects he had offered for sale had been sold by Native American tribes themselves. Conway refused to give Baer prison time. "This is not my favorite statute, so I'm not going to put him in jail," the judge remarked. Astonishingly, he even encouraged Baer to spread the word about NAGPRA to other dealers because "most people have no idea this law exists."

Native Americans and their advocates respond that most people have no idea how important NAGPRA has been in protecting Indian culture from looters, who regularly pilfer objects. (Archaeology magazine once estimated that thieves have ransacked 90 percent of the known archaeological sites in the Southwest.) "Native Americans suffered from a kind of historical trauma," says the AAIA's Trope. "The repatriation of ancestral objects is a very emotional, healing experience for them." Moreover, the horror stories about the statute ignore the ways NAGPRA has increased scientific knowledge. "Through consultation with Indians, we've learned more about tribes than ever before," says Thierry Gentis, assistant curator and collections manager of the Haffenreffer Museum at Brown University.

But even if you grant those points -- and not every critic of the statute will -- that would simply suggest that the law should be reformed rather than repealed outright. In practice, NAGPRA's opponents say, the law has done far more for new age sophistry and legal abuse than for science and justice. "In the end," says archaeologist Clark, the struggle is "all about identity politics and power."