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Collecting authentic tribal artifacts should be an enjoyable avocation, permitting individuals and institutions of all economic levels to preserve and honor our joint cultural heritage. Whether a person’s interest revolves around Native American arrowheads, Mayan jade, or African ivory, it is the responsibility of each gatherer to ascertain the legality of the item and the ability to trade in that type of artifact. The good news is that there are knowledgeable consultants and dealers in the field of tribal art that walk their clients through the minefield each and every day. The overarching rule is that collecting artifacts is both generally legal and historically important. Many of the finest museum collections in the world were originally collected, maintained, and displayed by passionate amateurs. It is critical that laypeople continue to carry the torch of cultural preservation by collecting tribal and primitive art.
There are several areas of law that impact the purchase and sale of ancient artifacts, but no one should be intimidated or fearful of following this wondrous pursuit. Simple guidelines and rules of thumb – along with appropriate advice, when necessary – will keep the average collector far away from any potential infractions.
The Eagle Feather Act
The first rule of thumb is to avoid any artifact containing eagle feathers. Specifically, the law is designed to protect one of our prime national symbols – the eagle. The original law noted that a person may not possess or sell any eagle parts, unless the person possessed same prior to 1940, the effective date of the law. The applicable Federal Regulation, 50 CFR 22.2 (a) (1978), mandates that, "bald eagles, alive or dead, or their parts, nests, or eggs lawfully acquired prior to June 8, 1940, and golden eagles, alive or dead, or their parts, nests, or eggs lawfully acquired prior to October 24, 1962, may be possessed, or transported without a Federal permit, but may not be imported, exported, purchased, sold, traded, bartered, or offered for purchase, sale, trade or barter. . . ." Simply put, even if a person legally owns eagle parts – a feathered headdress, for example -- they may not sell that item without a permit. In Andrus v. Allard (1979), the US Supreme Court opined that the ban on trade in eagle parts (in that case, feathers in a tribal artifact) served a “substantial public purpose” in protecting the American bird from extinction. The owner could keep the items, but could not sell them; the party involved was a commercial artifact dealer. Similar cases have occurred more recently, and the best course of action is to refuse to purchase or sell any tribal artifact containing eagle feathers, or any other eagle parts, including talons or beaks. Protecting our national avian from further destruction is a laudable goal, and those involved in the field of tribal art take that responsibility seriously.
The Endangered Species Act
The second major area to avoid isany artifact containing any part of an endangered species. The problem is knowing which species are “endangered” and which artifacts contain such substances. Working with a reputable dealer or consultant is always critical when artifact hunting, but it is similarly important to possess a working knowledge of the major pitfalls.The Endangered Species Act (1973) prohibits the selling (or offering for sale) a part of any creature on the Endangered Species list. However, the Act specifically exempts any object that is more than 100 years old. Simply stated, items that contain elements of an endangered species are perfectly legal to purchase and collect if they are over 100 years old. As a collector or dealer, it is your duty to keep documentary proof that the item is of sufficient age to be legal.
Tortoise shell is an example of an endangered species that finds its way into primitive artifacts. The Howell’s Turtle, an endangered species, was used in many Native American personal items. As long as sufficient proof exists that the item is greater than 100 years in age, collecting these historical treasures is perfectly legal. Other species and parts to be aware of include leopard pelts, jaguar skins, elephant tails and tusks, rhinoceros horns, spider monkeys, brown bear parts, and narwhal tusks. Common sense dictates that collectors work with well-known and experienced artifact dealers, and keep documentation as long as they possess the item.
The Archaeological Resources Protection Act
The Federal Government rightfully protects the archaeological resources which exist on both public, government-owned land and on Indian reservations. Specifically, the law (1979) states that
"No person may excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit[.] No person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange any archaeological resource if such resource was excavated or removed from public lands[.]”
The law prohibits taking, keeping or selling any Native American artifact found on public lands. When purchasing such items, make sure that the seller is reputable and able to show that the item was lawfully collected on private land – or that it was found on federal property prior to the enactment of the law. Excavating on private land is perfectly legal, although sound advice is to contact your local archaeological organization and give professionals the right to dig, examine, and photograph the items for the benefit of scientific knowledge. Many items, including pot shards and arrowheads, are found on the surface – or barely beneath it – and are much easier to find and collect. As long as the item was found on private land, a collector should be able to confidently purchase and display these historical pieces. Once purchased or found, make sure to maintain documentation of the discovery location of each item – or that the piece came into private hands before the enactment of relevant law.

Laws Regulating Trade in Ivory
In 1972, the Marine Mammal Protection Act was signed into law, and gave the US Government the mandate to conserve marine mammals. As it relates to tribal art, this includes walrus, polar bears, and whales. With certain exemptions, the Act prohibits the “taking” of marine mammals and mammal products. The critical issue to collectors and dealers revolves around ivory. Ivory is additionally dealt with under the Endangered Species Act. There are two major classifications of Ivory: Raw and Scrimshaw. Raw walrus ivory which existed before 1972 is legal to purchase. Scrimshaw – carved by whalers or Alaskan Natives – is commonly made using bones and teeth of sperm whales, whale baleen, and walrus tusks. Scrimshaw began in the 1700’s, and many pieces exhibit stunning detail and high level artistic qualities. Scrimshaw from the 1800’s and 1900’s is legal for purchase; note, however that elephant ivory is legal if in existence pre-1989 and marine ivory if prior to 1973. Post-1973 scrimshaw is legal if carved by an Alaskan Native (Inuit or Eskimo).
Elephant ivory is perhaps the biggest potential trap, although legal collecting is permitted under exceptions to Federal law. Certainly, protecting elephants is critical in the modern world, and dealers and collectors must be scrupulous to avoid any trade that would harm these creatures. Elephant ivory imported before 1989 is legal to own and sell. If a piece of elephant ivory was imported after 1989, but is more than 100 years old (pre-1889), it is perfectly legal to buy and sell. Fossil ivory – including mammoth ivory – is not protected, and may be legally purchased.

Overall, the legal trade in historically significant artifacts permits dedicated collectors the ability to buy, sell, trade – and cherish – important mementos of human history. By following basic guidelines, and using expert advice when necessary, the acquisition and protection of cultural works of art can coexist.

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