Saturday, July 16, 2016

ACCG files Motion for Summary Judgment

My law firm has filed a Motion for Summary Judgment on behalf of the ACCG in its long running case against the government.  The motion asks for the return of its Cypriot and Chinese coins because the ACCG has rebutted the government's case for forfeiture with expert testimony.  The expert testimony of Douglas Mudd shows that it is more probable than not that the coins were outside of either Cyprus or China before restrictions were imposed.  The expert testimony of Michael McCullough, Esq. demonstrates that the Cypriot coins were legally exported from the UK which under EU law binding on Cyprus satisfies US law. Alternatively, the Guild seeks the return of the coins because the government has not met its own burden of proof to forfeit the Guild's coins.   Under Court rules, the government's response and cross-motion for summary judgment is due August 1st.

Thursday, June 30, 2016

AIA View of CPAC Meeting on the the Bolivian and Greek MOU

Nathan Elkins, writing on the AIA's blog, gives his views about what happened at the CPAC meeting concerning proposed renewals of the Bolivian and Greek MOUs.

Of course, CPO remembers it all a bit differently.

More importantly, CPO feels he has been misquoted concerning what he said about current import restrictions being improperly based on where a coin is "made" vs. "found." Elkins is flat out wrong. CPO certainly did not "admit[] this was only his interpretation of the CPIA as other attorneys, academics, and the federal courts have not agreed with Tompa’s understanding of the ‘found in’ vs. ‘made in’ argument."

Perhaps Elkins can be more specific about his contention. Certainly both Urice and Adler have agreed with CPO in their Rutgers Law Review Article. Moreover, then State Department Deputy Legal Adviser Mark Feldman also seemed to agree that the focus must be where an object is found in his statements made at the time the CPIA was being discussed.

Finally, Elkins--who is no lawyer-- appears to have a fundamental misunderstanding of what a U.S. District Court and the Fourth Circuit have actually said about the matter.  Both have agreed that import restrictions only apply to objects of archaeological interest "first discovered within" and "subject to export control" of a specific UNESCO State Party.  Yet, they have refused to conduct a judicial review of the designated lists because they consider the issue to be a "political question" that makes the issue "non-justiciable."  So, no Court has actually looked at the issue on the merits.

Monday, June 27, 2016

Germany's Controversial Cultural Heritage Law Passes Lower House

Germany's controversial cultural heritage law has passed  the lower house of the German Parliament, apparently with opposition parties abstaining from voting on the measure.

The German Government hopes the upper house will take up the measure before recess on July 8th.

While additional regulation was probably inevitable, the assumption that an artifact is "stolen" because a dealer or collector cannot produce an export permit from a postulated "country of origin" where an artifact was made hundreds, if not thousands, of years ago brings back bad memories of Germany's totalitarian past.

So, small wonder the law lacks popular support.  Rather, the restrictions against collecting appear to be a special interest measure being pushed by the the German Federal Foreign Office (which--like our own State Department-- views repatriation as a "soft power" opportunity, domestic interests be damned), the German Archaeological Institute (a Federal Foreign Office entity, whose members depend on excavation permits from source countries to excavate),  and a small group of  countries with cultural nationalist pretensions (mostly undemocratic or even dictatorial regimes that view anything "old" as state property).

Germany's coalition government is already deeply unpopular due to its mishandling of the economy, immigration, and the Greek bail-out. 

Hopefully, Brexit (which was voted on the same day) and what it says about the people's distrust of  government "experts" has scared the politicians enough that at even this late date, Germany's upper house will consider the due process rights of Germans before requiring such non-existent documentation. 

After all, Germany's ancient coin and antiquities trade is not only good for Germany's economy, but it helps encourage people to people contacts and appreciation of other cultures. 

Image:  Monika Grutters, Germany's Cultural Minister, pitching her "soft power" initiative

Monday, June 20, 2016

Marine Antiquities Scheme to Launch

The British Museum has announced that a "Marine Antiquities Scheme" to encourage divers and others to report their finds will be launched this July.  The Marine Antiquities Scheme hopes to match the success of the  Portable Antiquities scheme that covers finds on land.

Wednesday, June 15, 2016

Papers Not in Order

The Israeli Antiquities Authority raided a store selling ancient artifacts and coins and has charged the owner with violating Israel's new registration laws.  It is unclear from the story whether there is any actual evidence the store was selling recently looted material.

CPO is concerned that hard to comply with registration schemes will lead to more seizures of artifacts without proof they were actually looted.

Moreover, if dealers are to register there wares so should archaeologists.  Requiring archaeologists to maintain registries will help protect against pilfering of archaeological stores and provide at least some information short of publication on what is being found.

Thursday, June 2, 2016

Antiquities Coalition Funded Study Belatedly Debunks Wild Antiquities Coalition Numbers

Fiona Rose Greenland, who is funded by the Antiquities Coalition and University of Chicago, has debunked wild claims about the value of antiquities stolen by ISIS.  Ironically, in so doing, Ms. Greenwald calls into question some of the more dubious claims made by the Antiquities Coalition, one of her study's sponsors.

Of course, this new information comes too late to impact the debate on HR 1493, which has already passed Congress.

Tuesday, May 31, 2016

Cultural Property Advisory Committee, May 24, 2016 Open Session to Discuss Renewals of Bolivian and Greek MOUs

On May 24, 2016, The US State Department Cultural Property Advisory Committee (CPAC) met in open session to discuss renewal of the Bolivian and Greek MOUs.  The following CPAC members were present:  (1) Prof. Patty Gerstenblith, Chair (PG) (Public Member); (2) Rosemary Joyce (RJ)(Archaeology);  (3) Jane Levine (JL) (Trade); (4) Marta de la Torre  (MT)(Public); (5) Nancy Wilkie (NW) (Archaeology); 6) James Willis (JW) (Trade); (7) Barbara Kaul  (Public) (arrived late); (8) Lothar von Falenhausen (LVF) (Archaeology); and (9) Thomas Murray (Trade).  Katherine Reid (Museum) and Nina Archabal (Museum) were absent.

The following individuals spoke on the Bolivian MOU in this order: (1) Donna Yates (DH) (University of Glasgow); and (2) Sonia Alconini, Society of American Archaeology.  Both speakers supported the MOU with Bolivia.

The following individuals spoke on the Greek MOU in this order:  (1) Sue McGovern-Huffman (SM) (Association of Dealers and Collectors of Ancient and Ethnographic Art); (2) Peter Tompa (PT) (International Association of Professional Numismatists/Professional Numismatists Guild); (3) Carmen Arnold-Biucchi (CAB) (Harvard University); (4) Nathan Elkins (NE) (Baylor University); (5) Peter Schertz  (PS) (Virginia Museum of Fine Arts); (6) William Parkinson (WP) (Field Museum/University of Chicago); (7) Bryan Burns (BB) (Wellesley); (8) John Papadopoulos (JP) (University of California, Los Angeles); (9) Kim Shelton (KS) (University of California, Berkeley); and (10) Barbara Tsinakis (BT) (Vanderbilt). 
The first two speakers supported the MOU with changes or opposed import restrictions on coins.  The second two speakers supported the MOU and restrictions on coins.  The next speaker supported the MOU with modest changes on museum loans.  The rest of the speakers supported renewal of the MOU without qualification.  

Bolivian MOU   

Donna Yates (DY) - Focuses comments on ecclesiastical artifacts that are trafficked into the US.  Since the last MOU there have been church robberies.   310 items were stolen in two separate thefts.  Registries are better for ecclesiastical artifacts because Churches maintain inventories.  It’s hard to tell Peruvian from Bolivian ecclesiastical artifacts apart, but both are subject to MOUs.  There were 24,000 ecclesiastical artifacts recorded before the last MOU.  DY is unsure if additional work has been done since.

Sonia Alconini (SA) - SA teaches at the University of Texas at San Antonio.  She previously taught in Bolivia.  MOUs are important instruments to stop trafficking in Bolivian artifacts.  Bolivian artifacts still appear on eBay.  Some may be fake. 

MT asked if there are warnings at the airport about exporting Bolivian archaeological and ethnological goods.  SA states, “no.”

TM asks about Bolivian textiles.  SA says that some stores still sell them from “hidden rooms,” but that there was a crack-down on such activity in 2013.  

NW asks about local collections.  Both DY and SA indicate they exist, but the objects are supposed to be registered. 

There is also a market for Bolivian artifacts in Brazil.

SA is asked about working in Bolivia.  She indicates there are 5 levels of permits that must be procured, but she maintains this added bureaucracy is “worth it” because it demonstrates a buy-in to the archaeological work at both a national and local level.

JL asks if any Bolivian material is legal under Bolivian law.   DY indicates archaeological artifacts purchased before 1906 and ecclesiastical artifacts purchased before 1923 would be legal under Bolivian law.  Apparently, artifacts can only leave legally with a “presidential decree” and this sometimes happens. 

Greek MOU

Sue McGovern (SM) – SM represents the Association of Dealers and Collectors of Ancient and Ethnographic Art (ADCAEA).   ADCAEA stands for a responsible and legal trade.  The MOU has not worked.  No seizures have been reported under it.  ADCAEA recommends that the MOU not be extended in its current form.  ADCAEA believes that US Customs should allow legal import of artifacts on the designated list that are legally exported from Greece’s sister EU countries. 

MT questions a statement in SM’s written presentation that artifacts without a provenance have no commercial value.  SM states all the objects she sells have a provenance and she could not sell them without one.  SM also states as an appraiser she would give “0” value to an artifact without a provenance.  SM states that eBay is full of material without a provenance. SM defines good provenance as an artifact that is documented to have come from a recognized collection.  1970 is an ideal date, but not always possible, particularly for minor items like oil lamps. 

SM gives an example of artifacts with exceptional provenance.  She recently sold artifacts that had been previously lent to and exhibited at the Smithsonian. 

JW notes that the 1970 date is a construct and there is no real difference regarding the loss of context from an artifact illicitly excavated in 1969 and one illicitly excavated in 1971.

SM notes while provenance is important we “should not throw out the baby with the bathwater” when it comes to orphan artifacts. 

SM notes that Greece should sell documented artifacts and use the money to support archaeology.  She also notes back in the 1960’s no one could care less about provenance. 

Peter Tompa (PT) – PT represents the International Association of Professional Numismatists and the Professional Numismatists Guild.  He states that current restrictions based on where a coin is made rather than found are contrary to the plain meaning of the Convention on Cultural Property Implementation Act.  Such restrictions have already damaged coin collecting and the people to people contacts collecting brings.  He criticizes the paper of Nathan Elkins, an academic supporting restrictions, as advocating positions either contrary to the CPIA's plain meaning, contradictory to Elkins' prior statements, or misleading on details about past coin seizures.  PT also advocates that archaeological objects on the open market within Greece’s sister EU countries should be allowed entry into the US with either a valid EU export permit or no permit if this is allowed under local law.  He indicates instead of focusing on more restrictions, Greece can take simple steps like requiring that archaeologists pay a fair wage to locals and ensure there is site security in the long off season. 

JW indicates that the coin issue “is a difficult one” and wonders if all the emphasis on context is to the exclusion of other important issues.  PT notes that the CPIA suggests “context” is not the most important issue because the CPIA only allows restrictions on objects of archaeological interest if they are also of “cultural significance.”

MT questions PT’s views about EU regulations, but PT directs MT to attorney Michael McCullough’s expert report on the issue.  He promises to provide CPAC with that report.  PT also promises to provide Sotheby’s paper on “cultural significance” under the CPIA. 

JW asks about due diligence. PT indicates that US dealers are forming a “Council for Numismatic Integrity” to make their due diligence practices more transparent.

LVF objects to PT’s suggestions in his paper about privatizing archaeological sites, but PT notes that this assumes local groups will take them over with oversight from the Greek cultural ministry. 

NW asks about the provenances of coins. PT says very few have recorded provenances and that there is no law either here or within EU market countries that requires it for what is for sale. 

PG asks about the academic paper attached to IAPN/PNG’s submission that indicates that 18% of Greek coins are found outside of Greece.  PT notes that is a number for all issues.  For some issues, like Athenian Tetradrachms and Decadrachms, there are more found outside of Greece than within Greece. 

There is some discussion about what is an archaeological site.  PT indicates that it is a site with other material remains nearby, but recognizes that some archaeologists define the term as anywhere something ancient is found. 

PT's oral comments may be found here.  IAPN/PNG's written comment can be found here.

Carmen Arnold-Biucchi (CAB) – Indicates support for the MOU and restrictions on all coins found in Greece.  CAB emphasizes, however, that the coins must be found in Greece and not found elsewhere.  She agrees with PT that issues of Athens predominate outside of Greece.  CAB supports the sale of duplicate coins from state collections and the institution of programs like the UK’s Treasure Act and PAS.  Harvard only purchase coins with a 1970 provenance. 

TM asks if it is unrealistic to assume most collectors can find coins with a 1970 provenance.  CAB admits most coins lack any provenance.  However, she says collectors should be educated about its importance.

NW asks about Byzantine coins.  CAB indicates those found in Greece should also be restricted. 

JW expresses concern that “context” has been allowed to trump all other values.

CAB indicates that she supports laws that encourage coin hoards to be reported.

CAB criticizes the fact that so many excavation coins are not published, but notes that American archaeologists are far better than their foreign counterparts.

Nathan Elkins (NE) - Coins are looted by the thousands.  Even common coins can be significant to dating.  One coin worth 50 cents on the open market helped date a synagogue in Israel.  NE has written an article critical of the ACCG and its test case.  In it, he explains that the current designated lists are quite conservative because they only take in coins primarily found in a given country.  Elkins now thinks more should be covered—all those commonly found in a given country. 

NW wants to know about coins found in Bolivia.  Elkins indicates he is no expert.

Elkins thinks the broad Bulgarian MOU should be a guide and looks forward to a day where overlapping MOUs will protect all coins. 

Peter Schertz (PS) – PS speaks on behalf of the Virginia Museum of Fine Arts (VMFA) and AAMD.  Loans are an issue.  Pre-packaged loans like the one going to National Geographic are fine, but they don’t meet the current MOUs requirements for loans to institutions.   The AAMD is looking for clarity on loans. 

William Parkinson (WP) – WP speaks on behalf of the Field Museum, the University of Chicago, the Society for American Archaeology and the Archaeological Institute of America.  WP lauds Greece’s efforts and collaboration.   WP works at the excavation of an early cave site.   WP says a new exhibit from Greece called “the Greeks” to be seen at National Geographic opens up 5000 years of Greek history.  It is a stunning achievement and to call it “pre-packaged” is wrong. 

In response to a question, WP admits it’s easier to collaborate with people you know and its possible AAMD museums have problems because their curators do not have such personal relationships. 
Bryan Burns (BB) – BB teaches at Wellesley College.  BB supports the MOU.   He thinks more can be done to help Greece digitize collections and ensure site security.   In response to a question from TM, BB says Cycladic art is problematical because the area where this art is found has been heavily looted.     

John Papadopoulos (JP) - JP teaches at UCLA.  Looting is a fact of life in Greece.   There has been an increase in first time offenses.  Artifacts stolen from the Corinth museum ended up in Miami.  Shelby White and the Getty have repatriated artifacts stolen from Greece. 

PG asks about private museums in Greece.  JP indicates there are several, but each has a public function.  TM notes that the Cycladic museum in Greece is a private institution.  JP thinks there should be better on-line inventories.  JP also advocates public awareness campaigns to tackle looting.

Kim Shelton (KS) – KS teaches at University of California, Berkeley.   She works at Nemea and has made efforts of outreach to the local people.  They have repaid her by reporting suspicious activity on site. 

Barbara Tsinakis (BT) – BT teaches at Vanderbilt.  She is speaking on behalf of the AIA.  BT works on excavating homes.  She thinks common artifacts found at the sites of homes have cultural significance because the artifacts have much to tell about how people lived.   Coins are obvious common objects, but others include transport amphora, loom weights and cooking pots.  BT would support making loans more long term, but recognizes the difficulty of transporting fragile artifacts.