by Linda Wiener
This article is a review of information given in my talk at the 2017 WRBA meeting in Reno, Nevada, with links to useful sites. It covers three areas of law that are relevant to button collectors and dealers: Ivory and other natural products, archaeological finds, and Native American items.
Laws on ivory are evolving quickly and involve international, federal, and state laws. Nearly all trade in elephant ivory has recently been federally banned under the Endangered Species Act, (ESA) although there are exceptions for antique material and items with de minimis amounts of ivory. Other important laws that regulate commerce in wildlife products are the Marine Mammal Protection Act (MMPA) and the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
To qualify for the Federal ESA antiques exemption, an item must meet all of the following criteria [seller/importer/exporter must demonstrate]:
Here are the types of evidence that are useful for establishing that the material is antique and was legally imported or acquired:
In order to qualify for the de minimis exemption, the following criteria must be met:
Examples of items with de minimis amounts of ivory are musical instruments, firearms, ivory inlay buttons.
This site from the U. S. Fish and Wildlife Service, What Can I Do With My Ivory answers many specific questions and has links to sites where permits, if needed, may be obtained. Information on CITES pre-convention requirements and certificates can be found on the CITES site.
The banning of the sale of elephant ivory is controversial. Western conservation organizations claim that a total ban is necessary to save declining elephant populations threatened by poachers who can sell the tusks for huge profits. There is no doubt that this is a threat to elephants and should be taken seriously. Groups like the National Resources Defense Council have celebrated the ban and are working to make bans even stricter under state law. African countries with large elephant populations generally do not agree that total bans are the best method and complain of the loss of income that a legal trade in elephant ivory would provide. The ivory ban has also resulted in seizure of musical instruments owned by traveling musicians (now there is an exemption if they have proper paperwork) and even the destruction of a valuable old piano.
Elephant conservation is a complex matter and I don’t pretend to solve it here. The Ivory Education Institute is a good source of information on this controversy. This institute takes the view that ivory has had enormous cultural and aesthetic value for millenia and that the criminalizing of innocent people who seek to sell antique ivory is both a taking by the government of their property and does not save elephants. This institute is also sponsoring research on methods to reliably distinguish antique ivory from newer ivory.
Walrus, Mastodon, and Mammoth Ivory
Many wonderful buttons, both antique and contemporary, are crafted from walrus ivory as well as fossil mammoth and mastodon ivory, by Alaska Natives. Ivory crafting is an important source of income for Natives who live in remote Arctic villages. Crafts are one of the few ways Alaska Natives have to both make money and maintain their traditional life ways. Under Federal law walrus ivory:
A permit is needed to bring purchased ivory items from Alaska through Canada (where walrus ivory is illegal).
Under Federal Law mastodon and mammoth ivory is legal, both in raw and worked form, since these species are already extinct and so do not need to be saved.
The publication Alaska Native Ivory by the Indian Arts and Crafts Board is useful for more specific information.
International ivory law is complex. Each Country has its own regulations. Some require a permit to buy and sell, some prohibit commerce entirely. It is wise to check each country’s individual regulations.
State ivory laws are all different. Some are much stricter than Federal laws, for instance, California and Nevada ban mammoth, mastodon, and walrus ivory as well as elephant ivory. Rules for antique and de minimis exemptions may also differ. Check the state’s Fish and Wildlife Service for particular rules and regulations.
Archeaological finds are regulated under the Archaeological Resource Protection Act (ARPA). This act:
There are not many buttons excavated from Native American sites, but there are many buttons found at Revolutionary and Civil War sites, with publicity around illegal digs at National Parks and National Monuments. Legal digs on private lands are legal but stigmatized by professional archaeologists who seek to make any excavations not done under the auspices of an official research institution morally reprehensible. Scholars have aimed their ire at television shows like American Diggers without regard to the fact that the activities depicted are legal.
Laws protecting archaeological and cultural property differ in different states. It is best to check if you plan on digging for buttons. Attitudes and laws about archaeological material also differ in every country. In the US, Federal law makes it legal to sell any items found on private land or before ARPA went into effect.
In many other countries, such as Italy and Turkey, the government owns all archaeological material and there are severe restrictions on even letting such material out of the country for museum exhibits. There is some irony in the finding that such laws actually may reduce the number of culturally important finds. The UK has tried to foster more cooperation among government, professional scholars, and amateur treasure hunters by passing the Treasure Act, which gives the government first choice to buy any material found on private land as well as the Portable Antiquities Scheme which encourages amateurs to record and photograph material they collect so that scholars can see what is being unearthed.
Native American Buttons
Native American buttons are avidly collected by button enthusiasts. Above, I have written about laws governing ivory buttons made by Alaska Natives. Other Native American buttons are regulated by the Indian Arts and Crafts Act (IACA). This legislation aims to assure that material advertised as Native American is made by actual Native Americans.
Hand crafted Native products are often knocked off and mass manufactured cheaply. These inauthentic products are then sold as Native American made for huge profits, duping consumers and depriving actual Native craftsmen of income. Here is such a case that was recently reported from Santa Fe, New Mexico. In an effort to curtail such practices, ebay and other marketplaces have set rules in line with the IACA. Ebay’s current rules are stricter than the current IACA, containing provisions that Natives hope to eventually include. Here are the current Ebay rules for listing Native American items:
Authentic Indian crafts from 1934 or earlier can be listed in the Native American category.
Crafts from 1935 and later can be listed as Native American if the artisan’s name and tribal affiliation is included in the description.
Items cannot be described as “Native American Style”, “Alaskan Native Style”, or “American Indian Style”.
Button collectors and dealers will know that it is often difficult or impossible to follow these rules to the letter. Silver work of all kinds was rarely hallmarked before the 1960s and even today it is common to buy silver and pottery buttons from Native artists that are not signed or hallmarked. There is a body of knowledge about the development of styles and materials in Native silver that allow a very educated, if not always perfect, assessment of the time period and tribe which produced a particular unsigned piece. The IACA creates a dilemma for selling items that are almost surely Native made, but cannot always be connected with a particular artist and tribe.
Enforcement of the various laws discussed here is not at all consistent. Enforcement ranges from lax, with no cases pursued for many years, to over zealous prosecution in which the punishment in no way fits the crime. For instance, in New York where ivory laws are stricter than Federal laws, enforcement is also stricter. The Federal government has not put its effort into confiscating and prosecuting sellers for items found at Flea Markets, but in New York this has occurred. In 2017, ivory materials confiscated from antique shops and dealers were pulverized, with public participation, in Central Park. The most troubling thing about this action was the lack of due diligence, with material that may well have been legal pulverized alongside what were very likely recently crafted and imported items.
Owners of items which contain materials that were legal when originally purchased, but which now face a ban under wildlife laws, may become problematic when taxes are levied. A case from New York in 2007 exemplifies this issue. A collector bought the art work “Canyon” by Robert Rauschenberg which contained a stuffed bald eagle which was killed and taxidermied long before the 1940 Bald and Golden Eagle Protection Act went into effect. When the collector died, assessors valued this work at zero, because stuffed eagles cannot be sold. However, the IRS decided to value the work at its supposed Black Market value which they put at $29.2 million. The heirs were not permitted to take a tax deduction when the item was donated to a museum, as it contained contraband materials.
What is a collector or dealer to do? Definitely, keep up with changes in federal and state laws. Due Diligence is also important:
Lastly, it is important that button collectors and dealers speak up and organize to protect their interests. We do want to protect endangered animals from extinction, but laws that prohibit the sale of antique materials do not save animals or plants and deprive owners and heirs of the value of property that was legally acquired. Professional excavation of important archaeological sites is an important goal, as is the protection of sensitive Native American sites, however, that need not stigmatize all materials found on private lands where owners have given permission, nor should amateur archaeologists and collectors, who are often extremely knowledgeable, be attacked and insulted for owning perfectly legal material or being interested in building their collections. Native American artists should not be deprived of income because of material falsely described as Native made. However, genuine vintage Native made items for which it is not possible to identify the tribe or the specific artist should not have to be sold as generic material of unknown origin. Surely there is room for middle ground in all of these areas.
As laws are debated and passed, it is generally wealthy and influential groups that run media campaigns and have influence in our legislatures that determine how the laws are written. It is almost certain that your Congressional representatives will not even wonder about how such laws affect button collectors and dealers. Unless we advocate for ourselves and our hobbies and livelihoods, no one will. Write a letter, make a phone call, or better yet, get together with others and go visit your representative. SPEAK UP.