By Kimberly Nolan
NANTUCKET - New federal rules aimed at blocking the sale of ivory to protect endangered elephants could affect the Nantucket traditions of scrimshanding and lightshipbasketmaking.
The U.S. Fish and Wildlife Service issued a Director's Order on Feb. 11 prohibiting the commercial import of elephant ivory. The new rules also apply to rhino horn, whale teeth, walrus tusks, tortoise shell and certain woods that are also regulated under the 1973 Endangered Species Act.
The new regulations, slated for June, ban importing and, with narrow exceptions, exporting any item that contains ivory. Private ownership would remain legal but interstate commerce would be prohibited. The new regulations would change the legal market for ivory, which currently allows for regulated sales of items that are at least 100 years old, per restraints of the 1989 African Elephant Conservation Act moratorium. Officials began outlawing ivory in the mid-1970s, but selling ivory that qualified as an antique was always permissible, prior to the current Director's Order.
Basketmaker Michael Kane said the new regulations would make Nantucket lightship baskets worthless.
“The 1980s ban on importation of ivory has been working flawlessly for all these years,” Kane said “We as legal ivory buyers, which is almost all of the basket-makers, have been buying legally in the United States since then. This is an absolute travesty to anyone that has purchased a Nantucket lightship basket or has an ivory collection.”
New regulations prohibit interstate commerce unless the owner can prove the ivory parts of an antique entered the country through one of 13 American ports authorized for ivory goods. Critics of the new regulations say owners of heirloom ivory are unlikely to be able to produce that level of certification.
“In this country it's supposed to be innocent until proven guilty,” said scrimshander Michael Vienneau.“Now they're flipping the burden of proof onto the seller and you're guilty until proven innocent.”
Vienneau said he legally purchased whale teeth, often one tooth at a time, from Nantucketers. He has been a scrimshander on the island for 40 years and opened The Scrimshander Gallery on Centre Street in 1990.
“There was no paperwork prior to 1982,” Vienneau said. “I have a lot of legal, old teeth that I may not be able to sell.”
Craig Hoover, chief of the Wildlife Trade and Conservation branch at the U.S. Fish and Wildlife Service, said the burden of proof lies on the seller.
“If we revoke the Endangered Species Act special rule under section 4(d) of the Endangered Species Act for African elephant ivory, we would revert back to the usual prohibitions for ESA-listed species,” Hoover said. “This includes interstate commerce. The exception to the ESA prohibitions is for antiques, and it is the responsibility of the seller under the ESA to demonstrate that they meet that exception.”
Jack Fritsch, co-owner of the Antiques Depot on Easy Street, said the new law contains vagaries pertaining to the date of acquisition for antiques.
“Documentation doesn't exist for most antique scrimshaw,” Fritsch said. “The way the law is written is ambiguous. When they ask for the date of origin, is that the date when the current owner acquired it or when the item was made? The onus to prove something is an antique has really always rested on the seller. The difference now is that the government will assume one is guilty and you will have to prove your innocence, which seems contrary to our justice system.”
Before becoming an antiques dealer in 1982, Fritsch was a field biologist with a focus on evolution and behavioral ecology.
“The pressure on endangered species is huge and it's extremely important to prevent animals from going extinct,” Fritsch said. “Biological diversity is crucial to all of us.The intent of the law is great. But, the law has to work.”
Fritsch said he is currently working to organize a seminar to bring experts from National Marine Fisheries to Nantucket to explain the details of the new regulations.
Some local artisans feel the new regulations are too broad.
“The ivory we use to do this is a miniscule amount,” said island scrimshander LeeAnn Papale.
“I consider myself Nantucket's last Eskimo. Who is protecting me? I can trace my heritage back to captain Owen Chase. This is Nantucket's industry next to cranberries and scallops. My grandchildren work with me and it will be painful if I don't have the ability to pass this on.”
Fritsch said scrimshaw was thought to be the first uniquely American folk art, dating back to the 18th century. There is scrimshaw around the world that might never be able to return to the U.S., he said.
“We're just craftspeople, we're not criminals,” said island scrimshander Tracy Murray. “Our supply is already limited to what is legally in the U.S. Our livelihoods will be jeopardized yet it remains legal, with proper permitting, to trophy hunt elephants.”
Basketmaker Susan Ottison said the effect on the basketmaking industry would be detrimental.
“This is a form of censorship. We are not poaching. We are using old ivory,” Ottison said.
Karl Ottison said he and Susan bought raw ivory to produce pegs and knobs in their basketwork. They have been making baskets on the island for 46 years.
“We are all for protecting endangered species,” Karl said. “The products that we purchased are from elephants long dead and brought into this country with the blessing of the government.We have documentation. I hope the government is not causing a conflict in the new legislation that will override their past choices.”
Island artisans continue to scramble for answers and worry about potential impacts on their businesses.
A spokesperson for the U.S. Fish and Wildlife Service said the group would propose a new rule in June, which would allow a public-comment period. For a list of questions and answers relating to the Director's Order go to www.fws.gov/international/ wildlife-trafficking.