The use of ivory in the creation of art and jewelry has become increasingly controversial in the past few years. On one hand, there’s reason for this, because ivory from elephants is a problematic medium, given that it is commonly obtained by the wanton poaching and slaughter of endangered elephants as part of a criminal enterprise. The same is true of rhinoceros horns. The issue has attracted enough attention that state legislatures in places such as California and New Jersey have enacted statutes that ban the possession or sale of items containing ivory.
The problem is that some laws ban ivory from sources other than elephants, sources that are not endangered and from which ivory may be legally harvested. Walrus ivory, for example, is not only legally harvestable by Alaska Natives under the federal Marine Mammal Protection Act (MMPA), but it was made legal by Congress precisely because it is a culturally and historically significant source material. State laws that proscribe ownership of anything containing walrus ivory are bad policy, and they have and will continue to hurt Alaska Native peoples and deprive them of cultural rights and economic opportunity.
Alaska Native artists and arts advocates have been monitoring and documenting the trend of passage of state ivory bans for some time. The new law in California that became effective in July makes it a misdemeanor to sell ivory, and defines selling as broadly as possible: “‘sell’ means selling, 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.”
The California statute’s definition of ivory is every bit as expansive: “‘ivory’ means a tooth or tusk from a species of elephant, hippopotamus, mammoth, mastodon, walrus, warthog, whale, or narwhal, or a piece thereof, whether raw ivory or worked ivory, and includes a product containing, or advertised as containing, ivory.”
New Jersey has a similar ban which includes walrus ivory, and legislation has been introduced and considered in other states including Hawaii and Massachusetts. These laws have been adopted with no apparent consideration of the harmful effect on Alaska Native artists, the families they support, or the communities in which they reside.
While many Alaskans are aware of the tremendous challenges faced by residents of rural Alaskan villages, there is a tragic level of ignorance across the rest of the country, which is part of what has allowed these misguided statutory initiatives to move forward.
Alaskan artists have recounted how they have foregone sales and marketing opportunities Outside because of the threat of the ivory bans enacted in other states. Before this trend does any more harm to the Alaska Native artist community, and by extension to all Alaskans, it may be necessary for Congress to act to ensure that existing federal law controls these matters.
The MMPA was originally enacted in 1972, and has since been amended. In relation to ivory it says, “ … the provisions of this chapter shall not apply with respect to the taking of any marine mammal by any Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean if such taking … is for subsistence purposes or … is done for purposes of creating and selling authentic native articles of handicrafts and clothing … (but) … only authentic native articles of handicrafts and clothing may be sold in interstate commerce.”
While this federal statute defines “authentic native articles of handicrafts and clothing” it does not set out any rules or methods of documenting whether any given item falls within the exception. This has created a situation of great uncertainly for Alaska Native artists and all persons who currently own or in the future might purchase or sell items that ought to be clearly legal under the law.
The Alaska State Council on the Arts (ASCA, on which I serve as chairman) promotes the arts for all Alaskans, and including Alaska Native artists who work with any and all media, including ivory. ASCA manages the Silver Hand Program which provides a certification and labeling process for art created by Alaska Native artists. Silver Hand is a good marketing tool, but it was not designed and is not legally forceful enough to help the artists who use it to participate and thrive in markets where ivory bans are in effect.
Litigation has been brought against California’s law, alleging the unconstitutional taking of private property and interference with interstate commerce. Unfortunately, a lawsuit is a time-consuming and uncertain way to address the problem. A clearer course of action is strengthening and clarifying federal law so it unambiguously pre-empts state laws that purport to prevent a right conveyed on Alaska Natives in federal law, which must logically extend to all persons who purchase art from these artists and artisans.
Sen. Lisa Murkowski, R-Alaska, has acknowledged the need to fix the problem of state ivory bans, recognizing that pre-emptive federal legislation may ultimately be necessary. Alaska’s other Senator, Dan Sullivan, took up the issue at the Alaska Federation of Natives convention in Fairbanks in October, holding a field hearing on the issue of state ivory bans.
ASCA later unanimously adopted a resolution in support of Alaska Native artists’ use of domestic ivory. This resolution urges Alaska’s Congressional Delegation to take all steps necessary to preserve and protect Alaska Native artists’ creative opportunities and economic rights to use domestic walrus, mammoth, and mastodon ivory as a legal medium.
All Alaskans have an interest in standing up for the rights of the indigenous peoples of the Great Land, and can be grateful that our elected leaders in Congress are cognizant of the problem of state ivory bans, and stand ready to take action to prevent harm from being inflicted by poorly-informed legislators in other states.
• Ben Brown is a lifelong Alaskan and Juneau resident, and serves as chairman for the Alaska State Council on the Arts.
