Suppose you own a sculpture by Siberian Yupik artist Beulah Oittillian made from walrus ivory, whalebone and polar bear fur. And suppose you bring it to Los Angeles, where someone offers to buy it from you.
Can you sell it to them?
Once upon a time, the answer from those familiar with art and law would have been an unequivocal yes. The Marine Mammal Protection Act says federal prohibitions against taking marine mammals and selling things made from them do not apply to "any Indian, Aleut, or Eskimo who resides in Alaska … if such taking is done for the purposes of creating and selling authentic native articles of handicrafts and clothing."
That would seem to cover the resale of Oittillian's sculpture. Right?
Don't be so sure.
A new law will go into effect in California on July 1 that will outlaw the sale — and the possession with intent to sell — of any "tooth or tusk from a species of elephant, hippopotamus, mammoth, walrus, whale, or narwhal, or a piece thereof, whether raw ivory or worked ivory."
In Alaska, where many Native families count on sales of ivory handcrafts for income, alarm is growing over how laws banning their work from being sold in other states will affect incomes.
"We have been quite concerned about the expanding ivory bans, as they have the real potential to negatively impact income opportunities for Native artists and villages where economies are depressed," said Rosita Worl of the Sealaska Heritage Institute.
"When we first heard of the California proposed ban, we attempted to stop the legislation, but it was already too late," she said. "We alerted other Native organizations and our congressional delegation about the California ban, but again it was too late."
On May 4, the Eskimo Walrus Commission, which represents Native hunters and users of walrus, issued a statement asserting that such laws "should not further restrict Alaska Native artisans and carvers whose ivory is obtained legitimately and legally."
Save the elephants
The intent of the state laws is to protect African elephants. The California law, for instance, declares, "There is a worldwide concern regarding the plight of elephants and rhinoceroses, who are being poached at alarming rates — an average of 96 elephants per day are killed in Africa."
The New Jersey law states that walrus ivory is included because "other species with ivory teeth and tusks — such as … walruses, and whales — are equally threatened."
But walruses are not among the 1,400 American species listed as threatened or endangered according to the U.S. Fish and Wildlife Service.
The Hawaii law may or may not actually encompass walrus since it pertains to animals listed under the Endangered Species Act or in appendixes I and II of the Convention on International Trade in Endangered Species. Walrus is on neither list.
But in an email, Hawaii State Sen. Mike Gabbard, who authored the bill, said he included walrus in the general language "because it is a protected species that is currently being trafficked in and through Hawaii. Hawaii is the third largest market for the illegal ivory trade, so it makes sense for the state to do more to stem this problem."
Charlie Pardue, a Gwich'in Athabaskan ivory artist who lives in Sutton, understands the problem and is sympathetic.
"I'm all for them doing that in Hawaii," he said. "A lot of competition for my business comes from Hawaiians. I've had Hawaiians walk up and say, 'Hey, where can I get a bunch of ivory?' They like ivory in Hawaii."
But he also said state ivory bans have cost him sales.
Despite the protections in the Marine Mammal Protection Act, Pardue said Alaska Natives need to be "on their own home territory" if they don't want to be hassled trying to do business in other states.
"It's one reason I don't go Outside and pursue the powwow trail or the knife show trail in the Lower 48," he said. "I'd spend the entire time arguing my case."
Pardue is not alone.
"We used to do the Marine Show in San Francisco but didn't do it this year and likely never again," said Robert James, the manager of Maruskiya's of Nome. The shop on Front Street carries work by many of the leading ivory artists in Northwest Alaska.
Pardue said he encounters confusion over ivory from potential buyers.
"Tourists get off the boat believing misinformation they've heard from the ivory activists," he said. "I've had hundreds of visitors walk up to my table and say, 'I thought ivory was illegal.'"
James said the mere speculation about ivory bans has put a damper on sales.
"We have seen a downturn in Californians buying artwork in the past couple of years," he said. The California law raises unanswered questions: "How will they enforce it? Who will be punished? Under what circumstances?" he said. "I don't know."
Neither does anyone else.
Show your papers
Sen. Gabbard's bill has exemptions for Native Hawaiians pursuing traditional crafts, though — like the laws in other states — it makes no mention of work by Alaska Natives. Gabbard insisted that the state law would not override federal law. But when pressed about whether ivory art legally made by an Alaska Native could be transported to or resold in Hawaii, he suggested there would be conditions.
"If the individual is specifically authorized to sell the product under the MMPA and can document that authorization, they would still be permitted to sell the item," he said. "If they are selling items without documentation, they are selling items illegally under existing law."
While existing federal law allows Alaska Natives to sell traditional ivory art, it makes no mention of documentation required for finished arts or crafts. Nor does it address the sale of legal ivory art by one buyer to another.
Thousands of walrus ivory figures and jewelry pieces are sold in Alaska shops and at craft fairs every year. Very few come with any documentation aside from the Alaska State Silver Hand sticker, often applied to the price tag rather than the art work itself. The Silver Hand, used by many, but not all, Alaska Native artists, shows that the work is by an Alaska Native.
Gabbard did not specify what he thought proper documentation might consist of. He did say that the onus should be on the seller to provide it.
"It's the responsibility of the seller to show they are compliant with all state and federal laws," he said. "It's required not only to show that the animal part was properly acquired but that it is genuine Native Alaskan art."
Benjamin Brown, chairman of the Alaska State Council on the Arts, which manages the Silver Hand program, thought that some new kind of certification might be needed. The Silver Hand sticker is "nothing like a statement of legality," he said.
Brown acknowledged that additional certification could be burdensome to the artists and cumbersome to buyers.
"What is a person wearing the earrings going to do?" he asked. "Carry a certificate in her purse?"
Save the fossils
State bans on walrus ivory concern only Native artists and their customers. Bans on mammoth ivory, included in all the aforementioned state laws, affect non-Natives as well.
Mammoth ivory is not hunted; it comes out of the ground. As far as federal authorities are concerned, anyone can own it, buy it and sell it.
Bruce Schindler is a non-Native living in Skagway who has been making mammoth ivory items and restoring tusks for 20 years.
"The New York and New Jersey bans haven't hurt me too much," he said. "But I've lost two-thirds of my business in California. There's a chilling effect. People find out that some product is illegal somewhere and they think there must be something wrong. They don't question why."
Gabbard said he included mammoth ivory in his bill "because the 'mammoth' loophole is used by some folks to import illegal African elephant ivory."
Schindler acknowledged that it could be true. He has heard of people who claim elephant ivory is actually mammoth ivory by staining or artificially aging it.
But it's easy to tell mammoth from elephant ivory, he said: "Any first-year Fish and Wildlife employee should be able to spot it right away."
The mammoth ban presents a double whammy for Native artists like Pardue. The Gwich'in were inland people, not likely to get a walrus. But they did — and still do — find mammoth ivory as it washes out along river banks in Interior Alaska.
"Mammoth ivory figures heavily in my culture," Pardue said.
Pardue estimated he currently uses more mammoth ivory than walrus ivory.
"Climate change has made it harder for Natives on the coast to get to the walrus," he explained. "So tusk availability has gone down in the last 10 years."
As a result, he said, "I'm frequently falling back to mammoth ivory. The scarcity of walrus has more effect on my business than what Joe Legislator is doing in the Lower 49." (He's including Hawaii.) "But if there's a lot of politicking or disinformation that jeopardizes my mammoth ivory sales, then I'm being affected."
Not only the artists are jeopardized by bans on mammoth ivory, said Schindler. So is the preservation of the mammoth tusks.
"When I started buying mammoth ivory, I got it from miners who were finding it all over the place," he said. "They just put it in a huge pile. They couldn't care less. But when you take a mammoth tusk out of the permafrost, if you don't take care of it, it will decompose and turn into chalk and dust.
"Imagine surviving 35,000 years only to rot away. That would be horribly shameful."
Heading to court
Legislators who sponsored the New Jersey and Massachusetts bans did not return emails or phone calls from Alaska Dispatch News. The staff of California Assembly Speaker Emeritus Toni Atkins, the legislator who sponsored the California ban, initially responded to emails with statements that made no reference to walrus ivory. They offered more comment on the condition that the source would not be identified. The Dispatch News declined to agree to those terms. At that point Atkins' spokesperson would not speak on the record, citing a pending lawsuit.
The lawsuit in question was brought by the nonprofit Ivory Education Institute, which represents "collectors and possessors of objects made from or with ivory, and particularly those of historic, artistic, cultural and practical importance."
"In our suit we're saying that the statute is unconstitutional," said Michael Harris, the attorney for the group. It amounts to taking of property without due process or compensation, he told the Dispatch News. It violates the Commerce Clause of the U.S. Constitution by having "a deleterious effect on commerce between the states" and otherwise runs afoul of the principle that only the federal government has the right to regulate acts of international commerce.
While the plaintiff seems mainly concerned about elephant ivory, the new bans on walrus and fossil ivory are also addressed in the case.
"An ivory object … derived from the tusks of an extinct animal (or) such non-endangered species as … walrus simply cannot have any impact on current elephant poaching, and the proponents of the Law have offered no credible evidence to the contrary," the complaint reads.
Alaska State Council on the Arts chairman Brown, a lawyer, noted several legal grounds on which state walrus bans might be overturned.
"I don't see how someone could be prosecuted" for selling a piece of legal walrus ivory anywhere in the U.S., he said. The Commerce Clause of the U.S. Constitution gives Congress the ultimate authority over transportation and sale of goods between states.
But, Brown cautioned, "You never know if it applies until someone brings a challenge. If it doesn't work out, you could go through a hard time, legally. The state laws are really new. We'll have to see how it shakes out and hope federal laws provide as much protection as possible."
Brown said the issue may ultimately require an amendment to the Marine Mammal Protection Act or a change in federal regulations.
Alaska U.S. Sen. Lisa Murkowski's office is weighing that option. A statement from Murkowski's staff noted "variations in these laws which might cause some Alaska Native arts and crafts to fall outside the exclusions" of the federal law.
The statement advocated "encouraging dialogue between the states and the indigenous artist community."
"If this is not successful," the statement continued, "preemptive legislation could be formulated."
A year in jail
State bans on walrus ivory sales have the potential to reduce the income received by carvers, especially in roadless areas of the state.
"It's not like there's a lot of cash in these villages," Brown said.
The average per capita annual income in Alaska is $30,000. In Gambell, Savoonga and Tokso
Beyond the villages, the ban could create headaches and depress sales for art shops in Alaska's bigger cities and tourist hot spots.
"It's going to be a nightmare," said Gina Holloman of Anchorage's Blue.Holloman Gallery, who often has to help customers navigate inconsistent laws when they want to ship an artwork purchased from her.
So much Native art uses material from animals that could be deemed at risk by legislators in one place or another that it's hard to know where to start, Hollomon said. She pointed to a decorated tusk by Peter Mayac from the 1940s or '50s, a whalebone carving by contemporary sculptor Nick Evan and a traditional basket that uses seal blood as a dye.
"It could get dicey," Hollomon continued. "It's going to be a nightmare if it gets enforced."
Most items carved from walrus ivory in Alaska are miniatures sold to tourists. But a small yet important part of the market consists of collectors who are drawn to larger and much more expensive pieces of significant artistic merit. A simple pair of ivory earrings can cost less than $100. Larger pieces by Beulah Oittillian or Fred Kingeekuk will cost several hundred dollars. Sculptures by Susie Silook are regularly advertised for $10,000 or more.
These big-ticket customers tend to consider how much their purchase may be worth in the future. Will they make more when they sell it than they spent to acquire it? Will one's heirs be able to liquidate ivory artwork like any other asset in one's estate?
For the time being, Harris, the attorney for the Ivory Education Institute, doubts anyone would be prosecuted for buying an ivory piece in Alaska and bringing it to California. Thought the law is vague about what constitutes "intent to sell," it doesn't seem to target simple possession.
But inside California, Harris said, "the buyer wouldn't be able to sell it."
The law defines selling to include "trading, bartering for monetary or nonmonetary consideration, giving away in conjunction with a commercial transaction, or giving away at a location where a commercial transaction occurred at least once during the same or the previous calendar year."
So what could happen if you parted with that Oittillian sculpture using any of the above transactions in Los Angeles? Harris cited the penalties in the California law: one year in jail and a fine of $40,000.
The art itself will be confiscated. It may be given to a museum or other authorized repository. Or the state may smash and burn it to destroy any value of the ivory on the black market.
Could happen. But will it?
"There are questions," wrote Murkowski's staff.
"It's a classic gray area of the law," said Brown.
"Who wants to be the first one to find out?" said Hollomon.