Tuesday, December 18, 2018

ACCG Requests Supreme Court to Hear Forfeiture Case

On December 12, 2018, the ACCG asked the U.S. Supreme Court to hear its forfeiture case.  Specifically, the Guild has requested the Supreme Court to consider the following questions for review:


            This case arises from the civil forfeiture of ancient Cypriot and Chinese coins under the Cultural Property Implementation Act (“CPIA”), 19 U.S.C. §§ 2601 et seq. The coins are of types that appear on “designated lists” subject to import restrictions.  Congress limited the reach of such import restrictions to archaeological objects “first discovered within” and “subject to export control by” a specific State Party to the 1970 UNESCO Convention, and further placed the burden of proof on the Government to establish that such designated material was listed in accordance with these criteria.  19 U.S.C. §§ 2601, 2604, 2610. Congress also ensured such import restrictions are entirely prospective.  They only apply to designated archaeological material illicitly exported from the State Party after the effective date of the implementing regulations.  Id. § 2606.  The questions presented are:

1.         Did the courts below violate the Guild’s 5th Amendment Due Process Rights when they authorized the forfeiture of the Guild’s private property without any showing that the Guild’s coins were illicitly exported from Cyprus or China after the effective date of import restrictions?

2.         In a civil forfeiture action implicating the Guild’s 5th Amendment Due Process Rights, did a prior decision upholding import restrictions under a highly deferential ultra vires standard of review “foreclose” consideration of legislative history, judicial admissions, and other  information relevant to the Government’s burden of proof?

The Guild's Petition for Certiorari in its entirety can be found here

Friday, October 26, 2018

Building Bridges: A Symposium on Global Cultural Heritage Preservation

This week I attended an interesting seminar put on by the State Department's new Cultural Heritage Coordinating Committee (CHCC) that took place at the Smithsonian Institution.   There were some really enjoyable programs about preservation work, and it was nice to have the opportunity to meet others with different perspectives.  However,  CPO still came away concerned that legitimate collecting is more at risk than ever by grossly over-broad application of cultural heritage laws which Congress originally intended to focus prospectively on specific looting problems in specific countries abroad.

I don't have time to summarize the entire symposium, but here are some of my takeaways:

1.  ISIS may have been defeated on the battlefield, but the terror group still looms large as the justification for all sorts of efforts that impinge on the due process and private property rights of collectors.  The latest claim is that while ISIS may have lost most, if not all, of its territory, it has been warehousing large numbers of valuable artifacts with which to fund its ongoing jihad.

2.  The State Department and law enforcement coordinate heavily with academics and related advocacy groups which are largely hostile to private collecting of antiquities.  Even though the statute that set up the CHCC calls for the committee to coordinate with the trade in addition to cultural heritage groups, there appears to be little evidence of consultations with the trade.  (CPO was happy to get invited, but he was not there for a dealer group.)  This should be particularly troubling because it has certainly contributed to  overboard application of cultural heritage laws in a matter hostile to even legitimate collecting.

3.  Enforcement will be ramped up in the next 18 months, which should be a major concern given the increasing number of cultural property agreements, how broad they have become and how broadly they are enforced.   Apparently, the State Department (with the help of the archaeological lobby)  is working on five new agreements with Middle Eastern countries (most, if not all, of which have authoritarian governments which claim title to anything and everything "old.")  Moreover, there still is no up-to-date guidance for the public in this area, though U.S. Customs at least realizes this is a problem. 

4.  FBI and Homeland Security Investigations are on board with archaeological advocacy groups' and certain compliance vendors' efforts to impose new anti-money laundering (AML) regulations specifically on the art trade because AML violations may be used to pile on charges and encourage guilty pleas.  Still, the evidence presented that money laundering is a real problem in the art trade remains very slim and largely depends on conflating money laundering with other financial crimes.

5.  The Smithsonian has done lots of good work on cultural heritage preservation and restoration projects, but has also joined the cultural property wars on the side of archaeological advocacy groups and has lobbied with them in their legislative efforts that have harmed the legitimate trade in cultural artifacts.  

Friday, October 5, 2018

Jay Kislak dies at Age 96

Jay Kislak, philanthropist and former Chair of the U.S. Cultural Property Advisory Committee, has passed away at the ripe old age of 96.  All coin collectors should be grateful for Mr. Kislak's truth telling about import restrictions on Cypriot coins in the face of State Department claims that the decision was made with CPAC's assent. Jay knew better, and wasn't afraid to say so. 

Thursday, September 20, 2018

ACCG Seeks Rehearing

The Ancient Coin Collectors Guild has sought rehearing of the 4th Circuit's affirmance of the District Court's decision to forfeit the Guild's ancient Cypriot and Chinese coins originally imported for purposes of its test case.  In making its request, the Guild has stated,

"The Panel’s decision collapses any meaningful distinctions among detentions, seizures and forfeitures and between ultra vires and constitutional review.  Furthermore, it has effectively rewritten prospective, targeted CPIA import restrictions into embargoes on all archaeological objects of types found on designated lists.  Amicus support attests to the public importance of these issues.  Rehearing is warranted.... This Court should not sanction assuming away important elements of the Government’s prima facie case.  Nor should the Court close its eyes to relevant information, including Government admissions, or further a demonstrably false narrative about how import restrictions on coins were promulgated to justify its decision."

Update (10/26/18)-  The 4th Circuit has denied the Guild's request for rehearing so the Guild will now seek certiorari from the Supreme Court.  Cultural Property News has written a good story about this case.  See https://culturalpropertynews.org/an-epic-battle-u-s-v-3-knife-shaped-coins/ 

Wednesday, September 19, 2018

Chinese Art and Antiques Saved from Tariffs

The Trump Administration has abandoned plans to place up to 25% tariffs on Chinese art, antiques and historical coins.  The office of US Trade Representative was evidently swayed by arguments that collateral damage to US small businesses and cultural exchange with our allies in the United Kingdom, the EU and Asia, particularly Japan from tariffs outweighed any benefits.  If anything, such tariffs would play into Chinese Government efforts to redirect Chinese art back to China for the benefit of wealthy collectors and auction houses associated with the Chinese government.  Now, if only the State Department would rethink the proposed renewal of the cultural property MOU with China, which raises many of the same issues.

Sunday, August 12, 2018

4th Circuit Affirms District Court Ruling in Long Running ACCG Forfeiture Case

The Fourth Circuit Court of Appeals has affirmed the district court opinion in long running litigation which began when the Ancient Coin Collectors Guild originally sought judicial review of controversial import restrictions on ancient Cypriot and Chinese coins.  This latest case was an action where the government sought to forfeit the Guild’s coins which were originally imported for purposes of that test case.

The initial round of litigation approved the State Department’s decision to impose the import restrictions under a very limited “ultra vires” review standard.   Here, the Court ruled that the it could also assume major elements of the government’s case for forfeiture were established in that earlier decision.  What is disconcerting is that in so doing, the Fourth Circuit panel completely glossed over the Guild’s primary argument— that the Court could not assume away major elements of the government’s case in the context of a forfeiture action which implicated the Guild’s 5th Amendment constitutional due process rights.   This should be particularly troubling because how a court reviews executive action when constitutional rights are at stake was also at the heart of the same Court’s recent en banc (full court) rulings in the Trump travel ban cases.   That raises the obvious question, are private property and due process rights somehow less important than other consititutional rights?

The Guild intends to seek rehearing to ask the Court to address this fundamental issue.

Tuesday, July 31, 2018

Virtual CPAC Meeting on Algerian MOU Request and Honduran and Bulgarian Renewals

On July 31, 2018, the U.S. Cultural Property Advisory Committee (CPAC) held a “virtual” meeting where all speakers were linked via an internet based video platform.  According to my notes, at least the following CPAC members were in attendance at the State Department:  (1) Karol Wight (Museum); (2) Lothar von Falkenhausen (Archeology); (3) Nancy Wilkie (Archaeology); (4) Rosemary Joyce (Archaeology); (5) Dorit Straus (Trade); (6) Adele Chatfield-Taylor (Public); and (7) Jeremy Sabloff (Public-Chair).   Jim Willis (Trade) attended via videoconferencing. 

Cari Enav, who runs the Cultural Heritage Center, made introductions.  Andrew Cohen, who is the executive director for CPAC, provided the speakers with information about the 4 determinations CPAC was required to make before recommending a MOU or an extension.   Dr. Sabloff indicated speakers should take these requirements into account in their presentations. He then introduced the CPAC members before calling speakers for the Algerian MOU.

Algerian MOU

There were six (6) speakers:  (1) Kate FitzGibbon (Committee for Cultural Policy (CCP) and Global Heritage Alliance (GHA); (2) Peter Tompa (International Association of Professional Numismatists (IAPN)/Professional Numismatist’s Guild (PNG); (3) Gina Bublil-Waldman (Jews Indigenous to the Middle East and Africa (JIMENA); and (4) Carole Basri (Fordham Law School).  

Kate FitzGibbon- CPAC initially only recommended MOUs on a narrow range of artifacts from a limited number of poor countries.  Today, MOUs close off entire areas from collecting.  Even worse, the State Department has recognized the claims of nation states to property that has been expropriated from fleeing Jews and Christians.  Ms. FitzGibbon acknowledges that recent Libyan import restrictions have been rewritten to remove references to Jewish items, but states that most, if not all, would still be restricted under more general coverage for Ottoman items.  The only way to ensure that artifacts of repressed minorities will not be subject to seizure is with a specific exclusion.  The problem can also be avoided if the State Department adheres to the definition of ethnological objects in the Cultural Property Implementation Act.  Algerian Jewish artifacts are not the products of preindustrial or tribal cultures and should be beyond the scope of coverage under the CPIA. 

Peter Tompa- This is yet another troubling request from an authoritarian North African government which is all the more problematic because Algeria seeks recognition of its rights to objects associated with its displaced Christian and Jewish populations.  This issue potentially impacts unprovenanced coins now in French collections.  (Algeria’s French “Pied Noir” and Jewish populations mainly fled to France after Algeria gained its independence.)  There is a real question whether Algeria’s patrimony is in jeopardy as no information has been provided whether coins are being found with metal detectors.  If they are, they need to be regulated as a less drastic remedy than import restrictions.  The UK Treasure Act and Portable Antiquities Scheme is IAPN/PNG’s preferred model for regulation.  If restrictions are recommended for coins, such restrictions must be limited to those “first discovered within” and hence “subject to export control” of Algeria.  Here, while there is some room for debate as to whether “local currency” issued at Cirta, Icosium (Algiers), Hippo Regius and Iol-Caesaria is exclusively found within the confines of modern day Algeria, coins of the Numidian and Mauritanian kingdoms, and the Carthaginian, Roman, Byzantine and Islamic Empires circulated well beyond the boundaries of modern day Algeria.  One cannot simply assume such coins were actually found in Algeria and hence are subject to Algerian export controls. 

Gina Bubill-Waldman- Ms. Waldman was driven from her home in Libya as a child.  She believes that these MOUs are a cynical tactic created to deny North African and Middle Eastern Jews patrimony and assets which were stolen from Jewish people when they were brutally expelled. The Libyan MOU has set a very dangerous and unjust precedent for countries who erase Jewish heritage by claiming it as their own, when Jews, the people who actually created it, have been hunted and expelled. Because these MOUs were passed without specifically excluding Jewish items, Jewish patrimony can now become the patrimony of the same governments which have destroyed, looted and harassed their now extinct Jewish communities.  CPAC is charged with the important job of protecting patrimony of antiquities. But by passing this type of MOU, CPAC would in fact be endorsing the opposite of what its mission tries to achieve: preservation of historical property by its proper owners. This MOU seeks to make the American government unwittingly collude with the thieves who stole, destroyed and defaced the Jewish-Algerian patrimony in the first place.

Not a single one of the Middle Eastern and North African countries from Morocco to Yemen, from Iraq to Egypt has earned the right to call thousands year old Jewish patrimony their own. Not after expelling their Jewish population, confiscating what was rightfully Jewish property, desecrating, looting, destroying synagogues and purposefully building skyscrapers on top the cemetery where Ms. Waldman’s grandparents are buried, like in Tripoli, Libya. 

Carole Basri- Ms. Basri is of Iraqi-Jewish heritage.  She authored a law review article about the harsh treatment of Iraqi Jews.  The property of Jews living in MENA countries was expropriated under color of law.  Such laws are against our own scruples as well as the UN Declaration on Human Rights.  There were originally 1 million Jews in Arab countries.  Jewish artifacts do not fit the definition of ethnological objects under the CPIA and should not be subject to detention and seizure. Jewish people were city dwellers and the cities where they lived were neither pre-Industrial nor tribal in nature.  The U.S. Government should not work with governments that have forcibly removed their Christians and Jews. 

Cari Enav interjects that new Libyan restrictions do not mention Jewish property so such property should be excluded from any import restrictions.  Kate FitzGibbon states that Jewish property is still included in the Libyan MOU because most Jewish property cannot be distinguished with what is otherwise described as Ottoman in the import restrictions.  That is why an explicit exemption is required.  All this could be avoided if the State Department followed the CPIA strictly and did not consider Jewish artifacts to be ethnological in nature. 

Honduran Renewal

There were three (3) speakers:  (1) Rocco Debitetto (Association of Art Museum Directors (AAMD)); (2) Kate FitzGibbon (CCP and GHA); and (3) Peter Tompa (IAPN and PNG). 

Rocco  Debitetto- AAMD supports the renewal with reservations.  Honduras needs to be held to account in Article II.  There needs to be long term loans.  The designated list is too broad and needs to be reformed to ensure that only archaeological and ethnological material as defined in the CPIA are covered.

Kate FitzGibbon- CCP and GHA oppose renewal of the MOU.  Honduras has been given blanket restrictions for 15 years.  It has not used this time productively.  Most of the budget for cultural heritage preservation stays in the capital rather than being used to protect sites on a local level.  The US House of Representatives has asked for an accounting of self-help measures as part of its authorization of funds.  Too much archaeologically sensitive land is being illegally used for cattle farms with nothing being done about it.   No more than $600-$700 is spent on sites per year.  There is little or no market for Honduran artifacts in the US. 

Peter Tompa- This MOU renewal raises the same issues for coin collectors as the recent Ecuadorian request.  Honduran historical coins cannot be considered either archaeological or ethnological objects. They were produced in industrial processes not consistent with them being ethnological objects.  Such coins circulated along with other Spanish Colonial coins throughout the Americas and beyond including the United States.  They should not be subject to restrictions. 

Karol Wight asks about AAMD’s recommendations.  Mr. Debitetto indicates a major one is one point of contact for loans.

Jim Willis asks Kate FitzGibbon about illegal exports from Honduras. Ms. FitzGibbon states it is difficult to answer that question because there is a lack of information. 

Bulgarian Renewal

There were three (3) speakers:  (1) Kate FitzGibbon (CCP and GHA); (2) Josh Knerley (AAMD); and (3) Peter Tompa (IAPN and PNG). 

Kate FitzGibbon- The Bulgarian designated list is all-inclusive and needs to be reformed to comply with the CPIA.  It includes many repetitive items that are not of cultural significance like coins, necklaces and beads.  Bulgaria has sorely neglected its archaeological sites.   Substantial EU funds have been wasted in archaeologically unsound rebuilding projects.  Very few Bulgarian artifacts aside from coins are of interest to collectors.  Coins are mass produced and not of cultural significance under the CPIA.  Bulgaria has not satisfied Article II of the MOU’s requirement that export permits be issued.  There is a lack of rigorous police enforcement. 

Josh Knerly- There is a major problem with the designated list.  The designated list can only restrict items authorized under the MOU.  Here, the MOU only authorizes restrictions on ecclesiastical objects from 681 AD forward, but the designated list restricts ecclesiastical items dating from the 4th Century AD.  This highlights much greater problems in how designated lists are prepared. 

Peter Tompa- Tompa produces a ruler to make a point.  A ruler goes from one inch to 12 inches.  We can all agree that some things like murder would be “12” on a scale.  But what about looting?  Many people would consider it a “1” on a scale, akin to a traffic violation.  That certainly is the case in Bulgaria where there are large numbers of treasure hunters and where the authorities themselves have been involved in looting.  Given this reality, it makes no sense to continue the MOU which only denies American coin collectors access to the same sorts of coins available elsewhere including Bulgaria itself.   If CPAC nonetheless approves a renewal, it should reform the designated list to limit restrictions on coins.  Moreover, CPAC should recognize that EU countries like Bulgaria are bound by EU export controls.  CPAC should recognize legal exports from EU countries of coins on the Bulgarian designated list.