Wednesday, August 5, 2009

"Stolen" Should Mean "Stolen"

While I disagree with archaeological blogger, David Gill, on many points, I do agree with his limitation of the term "stolen" to:

objects stolen from a museum;

objects stolen from archaeological stores or similar holding areas;

objects stolen from a private collection;

objects stolen from a monument at a recorded archaeological site.


Unfortunately, others [including some U.S. Courts] have also used the term "stolen" to refer to artifacts removed from the ground outside recorded archaeological sites, under circumstances that may violate a source country's patrimony laws. See:

In addition, one suspects that some even consider artifacts to be "stolen," if they leave a source country without an export permit. See:

I suspect most collectors would also agree with Gill's definition, and share my concern about the expansion of the meaning of the term "stolen" in the cultural property debate.


Cultural Property Observer said...

My post has apparently prompted Prof. Gill to rethink this issue and adopt a position identical to the AIA as to what objects are "stolen." See:

Cultural Property Observer said...

I received this email from a Mr. Gary Nurkin asking me to post it. This seems to be the best place to post the question and a short response:

Mr. Tompa

I have read with interests your posts on the Pieces of the Past and Looting matter blog sites. Unfortunately, I was unable to post this remark on your blog site and therefore I am emailing it to you. Hopefully, you can accurately post and respond to it.

In a recent post on your blog site, you stated that objects taken from "recorded archaeological sites" are stolen. However, you never defined what a recorded archaeological site is or conversely what an unrecorded archaeological site is.

Limiting, for the moment, our discussion to federal/Indian lands in the United States, we can agree that archaeological sites listed on or eligible for inclusion on the Nation Registry of Historic Sites or archaeological sites listed on or recorded in governmental data bases are recorded (or known) archaeological sites. We can also agree that if a person removes any archaeological resource (i.e., any material remains of past human life or culture that is of archaeological interest), greater than 100 years of age from these sites, that person may be prosecuted under ARPA, Theft, Destruction of Property or any other applicable federal law.

On the other hand, are you suggesting that people who remove archaeological resources from unrecorded or unknown archaeological sites on federal/Indian lands without a permit or approval from the federal land land manager are not violating federal law?

As you are well aware, case law that has developed in the United States focuses on the removal of archaeological resources from federal/Indian land without a permit. Case law makes no distinction between recorded archaeological sites and unknown or unrecorded archaeological sites. You seem to be suggesting that if persons remove archaeological resources from unknown or unrecorded archaeological sites on federal/Indian lands there is no violation of federal law. How do you reconcile your views with developed case law?

Turning our attention to foreign nationalistic laws such as the laws of Mexico, Peru, Israel, Cyprus, Greece, Italy China and Egypt, to name a few, each law declares the respective State to be the owner of all archaeological resources/antiquities found within that State (after a specific date) subsequent to the enactment of that law. If an archaeological resource/antiquity is discovered within that State's territory, following the promulgation of that law, it belongs to that State.

Under these laws, which you may disagree with, it makes no difference whether the archaeological resource/antiquity was found in a recorded archaeological site or was simply dug up by a farmer plowing his fields. If that antiquity/archaeological resource was found after the law was promulgated and meets the definition of an antiquity/archaeological resource under that law, that object belongs to the State. Case law, such as McClain and Schultz, do not make a distinction between recorded and unknown or unrecorded archaeological sites. Both decisions reinforce that if the artifact in question was within the territory of a State, was discovered subsequent to the enactment of that State's nationalistic statute and is covered by that statute's definition of antiquity/archaeological resource, that object belongs to the state.

How then do you reconcile your views of recorded (known)/unrecorded (unknown) archaeological sites with with developing case law?

Gary Nurkin

Cultural Property Observer said...

Dear Mr. Nurkin-

I agree with you that there is no such distinction under the few cases that have addressed the issue, but perhaps if the point is argued forcefully, Courts will consider making this distinction.

It seems to me that we should support efforts to protect known archaeological sites under active or prospective investigation by archaeologists. But trained archaeologists are very few in number and legal disincentives to recovery of objects everywhere else just make it more likely such objects will be lost due to development, floods, etc. Better to encourage the recording and preservation of artifacts by members of the pubic through programs similar to the U. K. Treasure Act and PAS than to extend draconian criminal sanctions to objects found in places where it is highly unlikely they will ever be properly excavated and recorded by trained archaeologists.


Peter Tompa

Wayne G. Sayles said...

Dear Mr. Nurkin;

Yours is, in my view, a sincere and valid question with many layers and complexities. My personal position has always been that the laws of any sovereign state should be obeyed by all within the jurisdiction of that state. I am one who would disagree with Nationalistic property laws that deprive private citizens and property owners of their individual rights, but that is admittedly a view conditioned by my own country's laws and history. I do not contest the right of these states to create and enforce laws of their choosing. If the laws are unjust, it is ultimately up to the citizens of those countries to find redress. What I do find objectionable, is my own government acting as an enforcement agency for other states whose laws have no authority here. So, while we might agree that a seizure of Roman coins without provenance in Italy (for example) might be authorized by Italian law, the same seizure would not be authorized by law in the United States. In the case of CPIA, the U.S. State Department has in essence taken a law created for specific emergency response and turned it into a vehicle through which repressive laws of foreign countries are enforced here in the U.S. The U.S. Justice Department seems intent on doing the same sort of thing through the National Stolen Property Act by calling cultural property from states with Nationalistic ideology and laws "stolen" if it lacks a governmental release of some sort. One might wonder why these departments of government would take such a stance, but that is a question for another day. I think this is a very slippery slope when governmental bureaucracy takes it upon themselves to interpret law and use their interpretations to control actions of the public. It becomes particularly dangerous when the burden of proof in a charge of wrongdoing falls upon the accused rather than the accuser. Within the U.S. the way that this perversion of good laws is countered is through the court system, which is exactly what the ACCG is involved in.