Heritage For Sale: Investigating the Business of Selling Indigenous Artifacts

In spite of existing laws and efforts by Indigenous Nations for repatriation, Native American artifacts are still sold online and in auction houses as commodities.

“Early Morning” Hopi Kachina doll, carved cottonwood, in excellent original condition. Measures approximately 7.5 inches in height. Tops of feathers attached to the back of head are missing. Bids start at $25.00. 

That is one of the hundreds, if not thousands, of Native American artifacts sold by private vendors on eBay. From baskets and jewelry, to arrowheads and ritual items, a cursory search of the platform reveals “collectibles” categorized by type, nation and era. Like the vast majority of the items in this search result, the “Early Morning” Hopi Kachina doll’s ad provides no information on provenance or ownership history–the one thing that could indicate its authenticity or that it wasn’t looted or stolen from the traditional community that owned it. 

“I do not have any documentation. It’s guaranteed as described. It’s best not to bid on items that you are unsure of.” That was the vendor’s answer to Important Context’s inquiry of the item’s authenticity and provenance. And it was no isolated event. “We personally guarantee the authenticity,” “If you don’t feel comfortable, I would refrain from bidding,” and “ I do not have any documents on this” were but a few of the other replies received from different listings. 

On paper, eBay has policies in place to regulate the sale of Native American artifacts. Listings may not auction funeral objects, human remains and sacred items used in ceremonial practices, nor anything looted, stolen, or obtained from government or protected lands. They must be authentic and include the provenance or ownership history. 

Numerous listings, however, suggest that the website’s policies are loosely enforced. Questioned about the steps taken by the company to ensure compliance with its own policies, a spokesperson requested examples of existing violations and didn’t offer further clarification. Meanwhile, the commercialization of Native American artifacts is still going strong. 

According to data provided by the Association on American Indigenous Affairs (AAIA), which monitors domestic and international auctions, 2023 saw 117 auctions, 60 of them domestic and 57 international, with a total number of 4,936 potentially sensitive items for sale. So far this year, AAIA has monitored 32 domestic and six international auctions, selling a total of 3,629 potentially sensitive items.

“It is really disheartening that we are at a time when people have romanticized our culture so much, that they would spend big chunks of change on our heritage to use them as decorative pieces and conversation starters, rather than ensuring they get back to their rightful holders,” says Big Wind, a Two-Spirit member of the Northern Arapaho Nation. “Our culture has been commodified as a means to make money and it has become so lucrative, that there are hundreds of auction sites where you can type ‘authentic–insert tribe here’, and find items at hefty prices to be delivered right to your door.” 

While it may not be the case for most listings on eBay, where prices can start at a couple of dollars, in auction houses and roadshows, Native American artifacts have sold for as much as half a million dollars—a strong financial incentive for the perpetuation of a trade which has existed at least since the 1880’s and was born from looting, illegal excavations and exploitation of the forced displacement of original peoples. 

“We, the Choctaw people, were forcibly removed from our territory. Our ancestors could only take what they could carry, and so much was left behind for colonizers to pillage as they saw fit,” Shannon O’Loughlin, AAIA’s CEO and Attorney told Important Context. “This problem, which has been happening since people from other continents started settling here and taking over our territories, has created a horrible market on our heritage and bodies.” 

For over a century, Native people didn’t have the legal tools to assert their cultural property rights. That changed with the Native American Graves Protection and Repatriation Act (NAGPRA). Signed in 1990, NAGPRA is a federal law governing the protection and return of Native American human remains, funerary objects, sacred objects, and objects of cultural patrimony. 

Under the law,  human remains and other cultural items removed from Federal or Tribal lands belong first to lineal descendants, Indian Tribes, or Native Hawaiian organizations. The law also requires that federal agencies and institutions that receive Federal dollars  turn over Native American human remains and other cultural items to their rightful owners. 

According to Dr. Sherry Hutt, who served as the national program manager of NAGPRA from 2004 to 2014, the law resolves the matter of the 150-year-old trade of Indigenous artifacts and of long-held items currently held by museums, auction houses or even private collectors. 

“NAGPRA is process driven to resolve abrogation of cultural property rights for so long. NAGPRA acknowledges tribal sovereignty, but also acknowledges that some peoples were not government recognized or tribes were disbanded by the US in the great assimilation efforts of earlier decades,” she told Important Context over email.  

But NAGPRA only legislates over artifacts taken from Federal or Tribal lands, meaning that those taken from state or private land are governed by local or state laws. As items are sold and move around the country and the world, it becomes harder to track them. There is currently no centralized source of data on the criminal removal of artifacts from protected land, making it impossible to assess the scale of the problem. Critics say existing laws are both incomplete and ineffective when it comes to protecting Indigenous heritage. 

“Amateur collecting has completely destroyed and delayed what we have come to know about Indigenous cultures, lifeways and peoples in the Western hemisphere,” says O’Loughlin. She explains that, for Native American people, what many refer to as “relics” are not elements of the past—something belonging only to their ancestors—but rather cultural heritage with a continued relation to those alive today. “They continue to be a part of who we are,” she says. 

That is why “bringing them home” is one of AAIA’s main goals. It is also why the goup contends that private collectors and auction houses must consult tribes on sales of Native American cultural and sacred heritage, particularly considering that these items are “held by a Tribal Nation as a whole, communally, and cannot be properly removed by an individual.”

But for organizations like the Authentic Tribal Art Dealers Association (ATADA), that position represents an obstacle for business. According to the association’s president, Will Hughes, ATADA aims to improve the trade of Native American artifacts “in terms of professionalism, ethics, responsible collecting” and to support the study of and research into tribal art. Yet, he claims that, on many occasions, ATADA has attempted to have “rational dialogue” with groups of Native American activists, but those discussions have thus far failed due to what he calls “a political agenda.”

“There’s a lot of disagreements between Native American activists over what is sacred,” Hughes told Important Context. “The sort of focus on restorative justice, of late has led to a broadening of the scope of potential claims for sacred items.” 

Indeed, the understanding of what is sacred or what consists of patrimony may change over time. 

“That which is regarded as patrimony today, may not have been regarded by the group as patrimony at the time it was alienated by the group by the leader or person with authority to do so,” writes Dr. Hutt. “In the history of North America, there were times when tribes adopted Christianity and dispossessed items, such as totem poles, although today tribes may regard them as patrimony. Controlling the decision is how the item was regarded by the tribe at the time of alienation.”

For ATADA’s president, however, there is no legal, or even moral, basis for Indigenous activists to be so adamant in their demands. “Most tribal objects have lost their original origin. Maybe two to five percent of items that are in trade have that original provenance, the exact how, when, and where it was obtained. We have hundreds of thousands of objects of which the original acquisition is unknown,” says Hughes. “But if you have bought that item at an auction house or from a reputable dealer, the presumption is that you do have good title to the item,” he adds. 

Hughes laments that “Native American activists are trying to reverse the burden of proof, so that somehow you need to prove that you have good title from the beginning, from the first acquisition of the object.”

But Hutt argues even if a purchase is made in good faith, it does not erase the facts of initial separation from the group. She writes that “Good title can never be transferred by a thief. Failure to obtain permission from the person with authority to give permission is an act of theft under any law of the US. The burden of proof to show good title is upon the person asserting good title. A cloud on title in the first instance does not blow away as the item moves through a succession of possessors.”

“So the question is, did the people/tribe regard the items, tangible or intangible, inalienable property at the time of separation, and if alienated–that is sold or gifted–did the person making the gift have the authority to do so at the time,” Hutt adds. 

But, there is often no documentation of these events. And without time machines, Native Nations like the Northern Arapaho are left with little other than artifacts’ continued cultural significance as a means to evoke the context of their separation from the community.  

That’s what happened to Big Wind’s four-times great grandfather Chief Black Coal’s headdress. “The story is that Black Coal had gifted the headdress to somebody who worked in the community as a dentist in the late eighteen hundreds, and it remained in the family for several decades,” they explain. “When you trace it back, we would have never given such a headdress to a dentist, as you have to earn every feather your wear, and you earn them by being in battle. The feathers in your headdress represent how many battles you have fought, and that is what makes you a leader. It’s a symbol of status in the community. We don’t take that lightly. That is not something we would have ever given away to a non-native person,” they say. 

In 2020, Chief Black Coal’s headdress made its way back to the Northern Arapaho. Upon hearing about ancestor bodies repatriated to the Nation that same year, a man in Massachusetts contacted the Preservation Office to give back the item kept by his family for generations in a storage box in the attic. 

“There was a ceremony where we gathered to pray and welcome it back to the community,” Big Wind recalls, noting that while the community works toward the goal of having its own museum to display returned items, Chief Black Coal’s headdress is being kept in a temporary controlled archive storage. 

“Since 2020, when the headdress was given back to us, we have seen a ripple effect, with more items being returned, not only here in the Northern Arapaho Nation, but in more and more tribes”, they say. “We’re starting to see a shift in people’s perspective. Not only museums and institutions, but also hobbyists are starting to repatriate items, even in cases when they were not the ones who acquired them.”

For years, AAIA has been attempting to alert buyers as to sellers' lack of due diligence on the provenance of the items they’re selling. The association is also working to educate people on the importance of these artifacts to Native nations. 

“We want people to feel good about giving those items back, and we strongly advise that, instead of purchasing our sacred items, people buy from Native artists whose work was actually meant to be shared and invested in,” says O’Loughlin. “What we find is that when an academic institution, museum, collector or seller actually sits down to talk to us, we are able to educate them appropriately not only about our past, but also about the importance of present Native Americans’ contribution to our world and society. Ignorance must be shattered.”  

New York art collector Monroe Warshaw is witness to the effectiveness of these efforts. Present at a contested auction in Paris, in 2013, which put up sacred Hopi items for sale, Warshaw acquired two headdresses for about $36,500. 

“My goal was not to own these items. They’re not something you want to hang up in your living room”, Warshaw told Important Context. His first thought, however, was not to return either of them to their rightful holders. “I actually thought they should go to a museum, so people could see them. Sometimes, the communities that made these things are not the best ones to preserve them for the future,” he says. 

But months after the auction had ended, Warshaw decided to repatriate the items after having the chance to spend two weeks among the Hopi and to witness one of their sacred ceremonies. 

“My mind changed when I learned more. I realized it was the right thing to do. Some things should be in the places where they are most important,” he says. 

Even ATADA has its own Voluntary Return Program, “a community-based initiative designed to bring sacred and highly valued ceremonial objects in current use to Native American tribes,” which has repatriated over 200 items since it began in late 2016. 

According to O’Loughlin, however, the program is little more than a marketing strategy meant to give the impression ATADA cares about Native cultural heritage, while allowing the association and its members to continue making money off of items meant for the Native Nations and Peoples that created them. 

“In practice, there are only a few types of items connected with Pueblo Peoples that have been returned,” she says. “There is no process for Native Nations to request return—any voluntary return is solely at the impetus of the collector or dealer. There is no transparency about what the process actually entails.” 

Questioned about the process, Hughes, ATADA’s president, told Important Context that ATADA’s program is very discreet and personal, given that sacred objects need to be handled properly and respectfully. “The repatriation or return program, as we call it, is really handled by one individual: a board member who is part Native American, currently based in Albuquerque, New Mexico. So it’s not so much ATADA, as an organization, returning them. It’s a very personalized program.” 

Returning Native American artifacts to their rightful Nations is far less complicated than it may sound. Dr. Hutt, who over the decades has received dozens of inquiries from private collectors who want to repatriate items under their possession, always recommends talking to the tribes. 

“Knowing which tribes to contact is not difficult,” she explains. “If you know the possible cultural group, make contact. Tribes have cultural officials and many have museums. If you know only the geographic area, look at treaty maps and maps of tribes available online, or contact a museum holding similar items for assistance.” 

To make this choice more enticing, many Native Nations offer something in return to the repatriated artifact. O’Loughlin points out that, since Nations can’t afford to pay to have these items back, they will sometimes provide a replica of the original or some other trade of contemporary art. Alternatively, she explains, Native nations fall under the 501(c)(3) charitable organization category, therefore people can actually get tax exemptions for donating the items. 

Yet, repatriations can still take decades to finalize, especially when going through the legal system. “Some of our heritage has been in limbo for over a decade, in a litigation with no end in sight,” Big Wind says. “We always hope that people holding our sacred items will return them pointblank. Resorting to legal mechanisms is our last resource, as the legal system is colonial and very slow, so processes often get stalled indefinitely.”

Next year, these processes may become even less efficient. AAIA’s CEO explains that the November elections have the potential to harshly and abruptly affect Native nations. She argues that Congress is supposed to have a government-to-government relationship to Native Nations, which often does not happen, due to a “a schizophrenic scope of law in federal Indian law” created by how the Supreme Court interprets these laws. 

“So, if you have a president who believes that Native Nations shouldn’t exist, and that their lands and resources don’t need protection, our rights are going to suffer,” O’Loughlin says. “On the contrary, if the leader of the country believes in the Federal tribal government to government relationship, and wishes to strengthen them, we are more likely to see support for the enforcement of NAGPRA and other federal laws.”