In the days leading up to Western Art Week, 
anticipation always builds toward unveiling 
the major works of western art to be sold, 
and the excitement of learning just how much 
an individual collector is willing to pay.

While works of artists like Charlie Russell, 
N.C. Wyeth and Andy Thomas typically 
receive the lion's share of public attention, 
there is a subcategory of western art that 
sometimes rises to the same level of value 
as well-known painters and sculptors — 
and often exceeds them in terms of 
controversy.

In 2008, a rare and previously unknown 
warrior's helmet of the Tlinget tribe in Alaska 
was sold to a private collector at auction in 
Connecticut for $2.185 million. The 
consigner of the mask had received it 
as a gift years earlier, but was unaware 
of the mask's value or even its origin.

"She basically had it sitting on a shelf
 for the past 24 years," said Fairfield 
Auction House owner, Jack DeStories. 
"To have something come out of the clear 
blue sky of that magnitude was pretty much
 a shock for everyone in our business."

Just last year, a pair of polychromed 
wood shaman's rattles of the Haida 
people came up for sale at Sotheby's 
in New York. Sold from a private collection 
owned by a charitable trust, the two rattles 
in the shape of swans in flight were expected 
to bring around $650,000. When the hammer
 finally came down they ended up going 
to a private collector for $1.205 million.

Aside from the jaw-dropping prices 
these pieces of rare Native American 
art bring, their sale also provokes 
widespread despair and criticism.
"I was very, very, very sad that something 
as important and as significant as a war 
helmet is going into a private collection,
" Roisita Worl told the Juneau Empire 
newspaper.
Worl is both an anthropologist and an 
enrolled member of the Tlinget tribe.

"The significance of the helmet to 
us is, it's not just an art piece, but
 it represents a tie to our ancestors 
— a tie to the spirit of our ancestors,
" Worl said. "So it's really sad to think
 of the possibility that it will never 
come home — unless of course the 
collector has a soul and heart and 
knows that the spirit of that helmet 
wants to come home."

According to the Antique Tribal Art Dealers 
Association, the annual market for Native 
American antiques in the United States is 
currently about $75 million. The vast 
majority of these items never rise to the
 prices — or the controversy — displayed 
during the sales of the Tlingit helmet or 
Haida rattles.

For the past 28 years, a minor portion of
sales at the March in Montana auction 
during Western Art Week have consisted 
of Native American antiques. A large 
percentage of those art pieces have 
consisted of Native American weavings, 
rugs and beaded items — antiques that 
almost never draw any unwanted 
controversy or challenge. March in 
Montana co-owner Bob Nelson said 
most collectors of Native American 
antiques have nothing to worry about.

"Beadwork, weavings, weaponry — 
none of that stuff has any possibility 
of getting crosswise with the law," 
Nelson said. "Ninety percent of antique 
bead items were sold by a family member 
because they needed the money or they 
were captured in battle. The criminal stuff 
is digging and taking things off of federal
land, buying and selling feather 
headdresses and fans. All the rest of it's 
civil. There's not a crime involved there."
That doesn't mean that the legal sale of 
Native American antiques is never without
controversy.
(Many of these are SACRED Ceremonial
items.... Do we do the same w/ Religous
Relics?)

In November 2013, a Lakota Sioux beaded 
and quilled war shirt came up for sale at the 
Skinner Auction House in Boston. The owner 
shirt's owner had provided "good title" 
to the 150-year-old war shirt proving that 
he had acquired it legally. Bidding was expected
to surpass $150,000. 
(What is 'legally'? Taken off of the dead?)

Only minutes before the bidding was scheduled
 to begin, the Skinner Auction House pulled the 
shirt from the auction block in response to 
pressure from attorneys and tribal officials
 representing a family on the Rosebud Indian 
Reservation in South Dakota. Though there 
was no written documentation suggesting
the war shirt's owner had acquired the war shirt 
illegally, a photograph taken around 1860 surfaced 
that appeared to show the shirt being worn by a 
Sioux Chief named Little Thunder.

An attorney representing the Little Thunder 
family likened the war shirt's cultural significance
 to that of the Liberty Bell in Philadelphia, 
arguing it was an item of cultural patrimony 
and that it's sale would violate the law under the 
Native American Graves Protection and 
Repatriation Act (NAGPRA).

"Skinner pulled it out of fear of getting into legal 
situation that would have cost them a couple of 
hundred thousand dollars to rectify," said Bob 
Gallegos, a founding member and past president 
of ATADA who is frequently retained by art dealers 
and auction houses to verify the authenticity of
Native American antiques and to ensure their sale 
does not run afoul of the law.

"That shirt is still in possession of the owner 
because the Indians cannot prove that that shirt 
belongs in the family. But they can make these 
claims and then it becomes a quagmire of 
interpretation. The only way its ever going to be 
remedied is that it's going to have to go to court."
(Such greed not to return it to the family)

Federal regulation of the sale of Native American 
antiques consists of a patchwork of overlapping 
legislation developed over the past 110 years. 
Large-scale trade in Native American antiques 
began after the closing of the American frontier.

A sudden nostalgia for the American west led
 to widespread looting of Native American 
archeological sites, especially in the desert 
southwest where scores of "pot hunters" began 
digging up ancient Anasazi settlements and 
burial sites filled with decorated pottery, 
jewelry, tools, sandals and finely woven 
baskets. The destruction eventually led to 
passage of the American Antiquities Act of 
1906, which prohibited commercial excavation 
of "any historic or prehistoric ruin or monument ... 
situated on lands owned or controlled by 
the Government of the United States."

The law was rarely enforced. According to 
ATADA, between 1907 and 1972 there were
only 10 convictions under the Antiquities Act. 
Native American archaeological sites outside 
federally controlled lands were given no 
protection whatsoever.

Real protection for Native American 
artifacts came only after the rise of the 
American Indian Movement in the 1960s, 
and passage of the Archaeological 
Resources Protection Act of 1979 and 
NAGPRA in 1990.

These laws reasserted and strengthened 
protections established under the Antiquities 
Act, and also made illegal to possess human 
remains, or to sell objects deemed to be 
important in terms of "cultural patrimony" 
or identified as being a "sacred object." 
Items less than 100 years old are not covered
 under ARPA, and federal law does not apply 
to cultural items acquired on private land,
 prior to 1906 or to ones obtained legally 
through a permit issued to a museum or 
scientific organization.

While NAGPRA does offer specific examples 
of what items can and cannot be sold legally, 
a lot remains left to interpretation.

"There's no clear definition of what's legal
 and not legal," Gallegos said. "NAGPRA 
talks about objects of cultural patrimony 
and sacred objects, but that becomes very 
subjective. Who makes that determination? 
When there are issues with a particular item, 
the federal agents tasked with enforcing the 
law will often ask the Native Americans what 
is sacred and what is not sacred. Well, if you
 ask a Native American what's sacred, he 
has to say almost everything is because 
that's their whole world view. They're part 
of earth and everything they do is considered 
sacred. What they should be asking is,
 'Is this particular item needed to continue 
an ongoing ceremony by extant religious 
leaders?' When they ask those questions, 
they'll get very different answers."

Gallegos notes that there are specific 
items that clearly meet the definition 
of the law and that all potential buyers 
or dealers should stay clear of. Zuni 
War Gods, Iroquois wampum belts,
 Hopi initiation sticks, Blackfeet medicine 
bundles, masks, alter fetishes, anything 
that includes an eagle or migratory bird 
feather (prohibited under federal endangered 
species regulation) — all these items have 
deep religious significance and clearly fall 
within the definition of "cultural patrimony 
and sacred objects."

"There are just certain objects that were never 
intended to be sold and are considered stolen 
if they were removed from the reservations," he said.

But what about other Native American 
antiques of historical significance — 
a Haida shaman's rattle, a Northern plains 
war shirt or a Hopi Kachina doll? Contemporary 
versions of these items like these are regularly 
sold by tribal artisans as decorative items. 
Yet the antique versions can and sometimes 
do fall into gray areas of legal interpretation.

"The definitions are not complicated, 
but how they get interpreted can lead to 
various opinions, which makes it very 
confusing," Gallegos said. "You could 
ask four different Native Americans and 
possibly get four different answers. 
It's kind of a mess out there."
Antique or Artifact?

The terms antique and artifact are sometimes 
used interchangeably, but each word has 
a specific meaning that is significant.

According to the Oxford American Dictionary, 
an "artifact" is any human-created object 
that is valued because of its historical, 
cultural or archaeological significance — 
but not necessarily because of its beauty. 
Technically, artifacts can be of any age.

"Antiques," by comparison, are items 
more than 100 years old that are valued 
for their beauty or craftsmanship, but not 
necessarily because of their historical or 
archaeological significance — although 
those factors may play a part.

By these definitions then, all antiques 
are artifacts, but most artifacts are not 
antiques. For instance, a pre-Columbian 
spear point is an artifact but probably 
not an antique. A Navaho weaving from the 
1880s would be both an artifact and an antique.