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Whose Laws? A Tangle Of Bloodline And Birthrights Is Now A Court’s To Unravel.

Marilee Enge
Annie Hotch testifies at the tribal court in Klukwan with the help of interpreter Anna Katzeek.
Bob Hallinen
Tribal court Judge James Bowen presides over the Whale House artifacts case in Klukwan.
Bob Hallinen
The ancient ancestress of the Ganaxteidi has woodworms surrounding her head at the top of the housepost.
Bill Thomas poses with the deteriorating wodworm feast dish in the Whale House in Klukwan
Bob Hallinen
George Stevens, 77, of Klukwan, wears his button blanket.
Bob Hallinen

The small, elderly man approached the witness stand. He wore rolled-up dungarees and a vivid red-and-black robe with the raven emblem of his tribe outlined in buttons. His name was George Stevens, he was nearing his 77th birthday and he was scared.

Stevens displayed his dance robe and the raven to the people assembled for Day Four of the Chilkat Indian Village Tribal Court.

 "You see that bird. It gives me courage to face what I am going to face today, " he said.

For an old man steeped in Tlingit traditions, it was difficult to speak his mind about the sharp divisions of his people and what he believed to be false claims of lineage.

But Klukwan was already rent by the question before the extraordinary court who owned the prized Whale House artifacts? At the Klukwan community building in January, after years of village whispers and formal legal arguments, the matter was out in the open.

"I am a member of the Valley House, " he said. "My mother's name was Sarah Kladoo, blood sister of Maggie Kladoo Hotch."

Those two simple sentences were filled with meaning for the villagers in the courtroom. If Stevens' mother and aunt were of the Valley House, then so were the descendants of Maggie Hotch. And those descendants, led by Clarence Hotch, didn't have the right to remove the treasures of the Whale House and attempt to sell them.

For many years, Stevens said, he kept quiet on the matter. Now he was challenging the identity of a powerful family. His pronouncement was akin to telling a family of European nobles that they were interlopers in their castle.

Stevens' mother, Sarah, married a Taku man and moved to Juneau, but she returned for potlatches and even sent the concrete used to build the Whale House in 1937, the old man said. Just before she died in 1968, she called Stevens to her home and told him that she had contributed to the Whale House so its artifacts could be saved. She warned him that there would be trouble over the carvings, he said.

"The reason why my mother helped on the house (was) to preserve that wall screen, totem poles, worm dish. To preserve it."

'LAST OF THE MOHICANS'

After Stevens told his story, defendant Bill Thomas questioned him. Clarence Hotch was his great-uncle and Thomas had the task of representing his family against charges that they had stolen the artifacts.

Why did his own elders say they came from the Whale House, Thomas wanted to know.

Stevens had no direct answer for that question. "I never dreamed I'd be sitting here, " he said. "The only reason is I'm protecting my mother's words."

"We are doing the same thing here, George, " Thomas replied. "Defending what we were told."

All his life, Thomas had heard that he was a member of the Whale House, Klukwan's highest-ranking family. Now, villagers like Stevens were calling his own identity into question.

From the day in 1984 when he helped carry the great totems from the Whale House and shipped them to art dealer Michael Johnson in Seattle, Thomas had justified his actions by saying that he acted under instructions from his uncle. And in Tlingit society, the uncle's word is law.

Uncle Clarence, who became leader of the Whale House after his brother, Victor, died, was fulfilling the wishes of their sister, Mildred Sparks. She believed that the old ways were dead and the carvings were no longer serving any purpose in the Whale House, according to the family. Mildred died two weeks after the artifacts left Klukwan.

"Clarence was watching his sister die. Victor had died. It's like the last of the Mohicans, " Thomas said away from the courtroom one day.

He recalled that Clarence once reacted angrily at a village "payoff party, " a potlatch where one tribal side was to repay the other side for some earlier contribution. Clarence believed that people were ignoring the old customs.

"He said, 'It's dead, it's all over. You've got Ravens in there sitting with Eagles. They've all got their hands out. The traditions are dead.' "

TROOPERS INVESTIGATE

It was nearly two months after the artifacts were taken from the Whale House before village leaders discovered they were gone. Martha Willard, an influential elder, called the Alaska State Troopers to report that there had been a theft. Investigators located the artifacts in a Seattle art warehouse and interviewed the major players, including Thomas, Hotch and art dealer Michael Johnson.

The case was assigned to Roger McCoy, a lieutenant in the criminal investigations bureau in Juneau at the time.

After interviewing everyone who would talk to him, he concluded that the ownership of the artifacts was so clouded that a crime would be hard to prove. He even spoke to a Canadian art dealer named Howard Roloff whose purchase of the Frog House artifacts in 1976 had created a furor in Klukwan.

"The conclusion I came to was that's how they (dealers) make money, how they do business try to convince people up and down the coast to sell artifacts, " McCoy said.

Even Roloff was unwilling to take on the Whale House.

"He said he wouldn't touch the Whale House, " McCoy said. "He told me there is no one person who owns it."

Roloff repeated that position in an interview eight years later. In all his years of dealing on the coast, he never tried to open negotiations for the Whale House objects.

"I thought there would be problems with it, " he said. "There are objects that are clan owned, and objects that are individually owned. Those are obviously clan objects."

Johnson had a buyer for the artifacts. A wealthy New York woman whose family holds a large collection of Northwest Coast Indian art agreed to pay $2 million and donate the objects to a major museum. Johnson was to receive 10 percent plus all his expenses dating back to his first attempts to remove the artifacts in 1976.

Adelaide de Menil was not just a rich philanthropist. She was a talented photographer who had spent days inside the Whale House in the late 1960s, taking some of the only color photographs of the totems ever made. Her husband, a respected anthropologist named Edmund Carpenter, arranged to place the carvings in the American Museum of Natural History.

"It was a generous offer, " Carpenter said recently. "The only thanks we got, we were attacked in the press. I found myself attacked on the front page of The New York Times for receiving stolen goods. All we had done was offer to buy them subject to court approval."

A VILLAGE COURT

A judge issued an injunction halting the sale of the artifacts. It remains in effect today, and the sellers never saw the money.

When the troopers suspended their investigation, Klukwan's village council sued Johnson and the Whale House group for removing the artifacts. The village was represented by Alaska Legal Services; the defending family hired Donna Willard, an Anchorage lawyer who was once married to one of the house members.

The epic saga of the Whale House artifacts grew into epic litigation. A series of courts spent years dealing with esoteric and complicated issues of where the matter should be heard. The case was assigned to U.S. District Court Judge James von der Heydt, who had once urged Klukwan to develop a tribal court to deal with artifact ownership disputes.

He ruled early on that the federal courts had no jurisdiction in the case. The village appealed his decision to the 9th Circuit Court of Appeals, which reversed him and sent it back. In October 1990, five years after the suit was filed, von der Heydt ordered the Whale House artifacts case to tribal court. It was the first time in Alaska legal history that a case had been referred from federal court to a village court.

Von der Heydt concluded the village is a federally recognized tribe with the power to pass laws like the one prohibiting the removal of Native artifacts.

Johnson and the Whale House group argued then and now that the 1971 Alaska Native Claims Settlement Act took away any sovereign power to pass laws.

Von der Heydt disagreed.

"The power to pass the ordinance that is in dispute in this case was part of the retained, inherent power of the Chilkat Indian village, " he said.

Some villages in Alaska had tribal courts, but Klukwan had to start from scratch, finding a judge to preside over its first trial. It had to figure out what was traditional Tlingit property law, and how it should apply to the Indian family that tried to sell the objects and to the white art dealer who sought them. Were the artifacts the shared property of the clan or individual property that members of the house could sell?

Several respected Tlingit elders turned down the job of tribal court judge, and the village finally settled on a Juneau lawyer, James Bowen. A Klallam Indian from Washington's Olympic Peninsula, Bowen had served as a tribal court judge elsewhere after he graduated from law school in 1976.

Defense attorney Willard, who later withdrew from the case, didn't trust the judge, partly because he was paid by the village council that was bringing the case to court.

"I have objected vehemently to his role in this case because his biases are relatively well-known, and frankly I have great difficulty with somebody pulled out of the Tlingits' hat, paid for by the plaintiff adjudicating the case, " she said.

Over the years, the state of Alaska has sided with both the village and the defendants. It was wrong to remove the carvings, the state reasoned, but the village had no right to pass a law making it illegal.

CODIFYING ANCIENT LAWS

Trying to identify a Tlingit law that governed the ownership of such important artifacts may be impossible, said Doug Mertz, a former assistant attorney general who handled the Whale House case for the state.

"People have attempted to actually write down the traditional Tlingit law of property. You can come up with a fairly general statement of what it is. But then actually applying it to these people, and several generations back, is an enormously difficult prospect, " he said.

"Are these house artifacts or clan artifacts? And once you decide that, who is the rightful trustee?" Mertz wondered. "Is it the group that took them and turned them over to Johnson? You have elders coming down on both sides."

Tlingit anthropologist Rosita Worl has studied traditional law. She testified at the Whale House trial that the Tlingits had a sophisticated system of property. Crests, such as the symbolic figures of the whale or the worm on the Whale House totems, were owned and used exclusively by the clan, she said. Houseposts in particular could serve as the clan's symbolic title to the property.

When crest objects were brought out at potlatches, they became the property of the entire clan. Generally, only ceremonial garments remained personal property, Worl said. Even a Chilkat blanket commissioned by an individual became clan property after it was displayed at a potlatch.

Although traditionally it might have been a serious and punishable offense to sell a clan crest object, the system of sanctions weakened after white people moved in and imposed their own laws.

"In the past, individuals probably would have paid for it with their life, " she said. "But in contemporary time, the clan didn't have that authority."

By the time Johnson first came to the Northwest coast, there was really no law traditional or modern prohibiting individual Natives from selling crest objects. And the dealers who urged them to sell were following time-honored practices, according to art experts.

"It's really not any different than someone who keeps coming around wanting to know if you'll sell your house, " said Steve Brown of the Seattle Art Museum.

"There was no line to draw to say, 'This is ethical, ' " he said.

"Even people involved in this museum-art field 15, 20 years ago, their views have changed. Now it's the politically incorrect thing to do. You didn't hear anybody talk about giving things back."

Michael and Sharon Johnson complain that activist Legal Services lawyers are imposing a new standard on business practices that were normal in the '70s and early '80s.

"The Legal Aid people have decided that to deal in Indian artifacts is evil. They have taken this politically correct stance that all dealers of artifacts are evil, " Sharon Johnson said.

"They have whipped themselves into this frenzy that we are these rich white people trying to rob Indian people of their culture."

Joe Johnson, the village's lead Legal Services lawyer, said Michael and Sharon Johnson have tried to shift attention away from the merits of the case by accusing his agency of political motives. One of the mandates of Alaska Legal Services is protecting the governmental powers of Native villages, he said.

"It frustrates me to see people try to blame so much of what happened on the attorneys. This is the way the village feels, " Joe Johnson said. "This is a program that's designed to help people who can't afford to hire an attorney."

NEW PROTECTION

In the years since the Whale House carvings were removed, Native people throughout North America have demanded, and received, tribal artifacts that were bought or stolen by collectors. In 1989, Congress passed the Native American Graves Protection and Repatriation Act, which required museums to return ceremonial and funeral objects to the tribes they came from.

Worl serves on a committee at the Smithsonian Institution that is charged with returning pieces in its collections. Native Americans once again have the power to enforce their own laws and customs, she said.

"The enforcement mechanism is back in place."

Native Americans across the country are assessing what they can retrieve from museums and private collectors. Whatever the effect of the act nationwide, the fate of the Whale House artifacts is to be decided by a village court in Klukwan.

With Judge Bowen presiding in a colorful Tlingit button blanket, the four- week trial early this year took listeners on a journey through Chilkat history, Tlingit ethnology and Whale House genealogy. Elders testified about the role of the uncle in Tlingit society, the role of the house caretaker and the significance of the totems.

Many witnesses wore ceremonial clothing, and some testified in Tlingit. Anna Katzeek, a Juneau woman with roots in Klukwan, served as a translator, storyteller and witness. Most of the elders made speeches before they took the stand, and Katzeek occasionally broke off her translation to make her own statements during testimony.

In Klukwan, the Federal Rules of Evidence did not apply. Bowen admitted almost everything hearsay, insults and just plain irrelevant testimony. His easy-going style placated even the defendants who began the trial bristling with hostility.

Michael Johnson didn't attend. He sent only a letter. The Whale House group represented itself, and its members made clear they were not defending Johnson.

No one would say exactly why Donna Willard withdrew, but it is clear that the family was eager to settle the case before trial and Johnson was insistent that his contract with them was still valid. Thomas said the family was willing to return the artifacts to Klukwan and allow them to be placed in a village cultural center. However, they wanted to recoup their legal fees, insurance and storage expenses. Village attorney Joe Johnson, on the opposing side, said the family demanded $500,000.

In December, the Johnsons warned that they will sue the family if the artifacts are returned to Klukwan.

"That will leave us no alternative but to start a whole other lawsuit, " Sharon Johnson said. "It's very sad, but at that point we would have to sue the family. They signed a contract with us saying they owned it. . . . We simply need to get our expenses back."

The trial ended Feb. 12. Bowen is expected to deliberate for several months before he reaches a decision. Among the questions before him are whether the Whale House is Ganaxteidi clan property, and whether the village has authority over the property owned by clans. District Court Judge Von der Heydt will probably review the decision. Appeals to both a village appellate court, which does not yet exist, and federal courts are possible.

At the end of the trial, village president Joe Hotch hugged his cousin, defendant Ron Sparks, and said he had no hard feelings against the family.

Michael Johnson is another matter.

"Art dealers took advantage of individuals who needed cash in Klukwan and throughout southeast Alaska. For years this and other villages have worked to reverse that trend, " village lawyer Johnson said in his closing argument. "And that's one of the things that makes this case so important. These villages are doing what they can.

"This village is taking a stand that these wrongful actions are to be stopped. Michael Johnson is only the most recent in a long series of art dealers who've plagued this village and others."

In an interview at his home in Santa Fe, N.M., last December, Michael Johnson said the Whale House affair has left him bitter and financially ruined.

What would he have done differently in his long quest to acquire the treasures of the Whale House?

"I regret we didn't do it sooner, " he said. "If we had done what we wanted to do 10 years earlier, I don't think there would have been any question about it."

The Whale House carvings have long been valued as great art. The carver, whose identity has only been known for about five years, may be the greatest artist in Alaska history. For villagers, however, the value of the art is less important than the role of the house and its crest art in Tlingit society.

"The whole social structure is organized around these different clans. Our identity is involved in that, " said Lani Strong Hotch, a young mother and village activist. "It's not simply an art object that we look at."

After attending college in Fairbanks and Seattle, she returned to Klukwan to take care of her grandmother. Her own village, and the cause of holding on to artifacts, gave her a sense of belonging she never felt elsewhere. The clans and their art provide a sense of identity that Native people are struggling to recover, she said.

Hotch is from the Eagle side of the Tlingits, and the Whale House is of the Raven.

"There's a balance, the Eagle and the Raven. It's a balanced society. Without those people having their crest objects, not having access to that house, because of all this litigation, turmoil, hard feelings, nobody's gone near that house. We haven't used it for potlatches for years. It's a loss, " Hotch said.

"I'm Kaagwaantan, but my children are Ganaxteidi yatxi. They're the children of the Ganaxteidi, and the Raven House. That's their father. The balance is missing."

Original print run date: 4/8/1993


By Marilee Enge
Anchorage Daily News Archive