Italian Numismatic Society Opposes Potential US Import Restrictions on Coins

The Italian Numismatic Society has joined the American Numismatic Association in opposition to any effort to include ancient coins in the Italian MOU. The letter underscores the concern that import restrictions will damage the study of numismatics and the people to people contacts it engenders. Here is the Italian Numismatic Society letter:

Re: Memorandum of Understanding between the Republic of Italy and the United States

Dear Prof. Reid and Members of the Committee:

Società Numismatica Italiana (Italian Numismatic Society) is the most prestigious and longest serving numismatic association still active in Italy.Società Numismatica Italiana was created in 1892 under the presidency of Francesco Gnecchi, who together with his brother Ercole, have been two of the most famous Italian numismatist. Among the Society’s founders was also the Prince of Naples, the future King of Italy Victor Emmanuel III.Among its other illustrious members, presidents and councilors of the Society, Count Niccolò Papadopoli, Prof. Serafino Ricci, Raffaele Castellani, Oscar Ulrich-Bansa, Prof. Panvini-Rosati and Athos Moretti can be mentioned. Several of these names are historical numismatists figures also recorded and celebrated in the specially dedicated Numismatists’ Hall of Fame preserved at the numismatics section of the Museum of American History of the Smithsonian Institution in Washington DC.

All international numismatic congresses, since the establishment of this institution, have seen the active participation of the Society (Paris in 1900, Bruxelles in 1909, London in 1936, Rome in 1961, New York in 1973, etc.). Likewise, the Society maintained strong ties, in its early days, with public institutions, such as the Ministry of Education, to assist in the re-organization of important public collections, suggesting the cataloging criteria of public collections for the benefit of scholars and visitors alike.

The Society has always been an advocate of independent research and its review (Rivista di Numismatica and Scienze Affini – RIN) is today one of the oldest serving numismatics reviews still active in the world, having started its publications in 1888 (a few years before the Society itself was effectively founded).

Finally, the Society has regularly been promoting conferences and seminars dedicated to specific themes, like the celebrations for the first centenary of Corpus Nummorum Italicorum, the catalogue composed by twenty in-folio volumes, of the collection of King Victor Emmanuel III, the only example of a complete catalogue of the entire series of coins produced by a nation.

With its long standing tradition and also conveying the sentiment of its affiliates, the Society today advises this Honorable Committee to reject the restrictions to the importation of Italian coins in the name of the free trade principle that regulates trade flows within the EU as well as most countries in the world.

It is precisely with the free exchange of goods, of ideas, of initiatives and of cooperation between institutions, that the cultural progress of numismatics has been made possible and that it has grown to today’s sophisticated standards and reach.Moreover, it is to be reminded that most of the public collections that we can today admire and study in museums, have been the heritage of private ones, formed over decades, in some cases centuries, by individuals and families who devoted precious resources to their search and formation. Had a ban on the commerce of ancient coins been raised, that would have, de facto, hindered their making with a fatal detriment to the cultural treasures we can share and enjoy today.

With our most respectful regards,

Ing . Ermanno Winsemann Falghera

President of the Società Numismatica Italiana

Met Shorted on Loan from Italy?

During the interim review of the Italian MOU in November 2009, several AAMD member museum directors complained that the Italian Government had only provided long term loans to museums which had agreed to repatriate antiquities voluntarily, though the current MOU with Italy contained no such condition. See http://culturalpropertyobserver.blogspot.com/2009/12/aamd-testimony-on-interim-review-of-mou.html

Now, "Culture Grrl" blogs about how the Met, one of the museums that has made voluntary returns, has been shorted-changed in the loan it received for the repatriation of the magnificent Morgantina treasure.
See http://www.artsjournal.com/culturegrrl/2010/04/italian_silver_swap_the_met_di.html

"Culture Grrl" has been supportive of Italy's efforts to seek the repatriation of artifacts in the past so the concerns she raises cannot be easily dismissed by those in the archaeological community for whom source countries "can do no wrong."

ABA Panel on 1970 UNESCO Convention and CPIA

On April 15, 2010, the ABA Section of International Law hosted a panel discussion entitled, "International Trade in Ancient Art and Archaeological Objects: Controversies Over U.S. Implementation of the 1970 UNESCO Convention on Cultural Property."

Mark Feldman of Georgetown University Law Center and Garvey Schubert Barer acted as moderator and program chair. The panel included James Fitzpatrick (Arnold & Porter), Patty Gerstenblith (DePaul University), Josh Knerly (Hahn Loeser & Parks), and Nancy Wilkie (Carlton College).

Feldman previously served as the State Department's Deputy Legal Adviser. At State, he worked on both the 1970 UNESCO Convention as well as the US implementing legislation, the Convention on Cultural Property Implementation Act. Feldman provided the audience of ABA members with some historical background. He recounted that the U.S. Government first became interested in the issue when Mexican authorities asked for help in staunching looting of Mayan stela from jungle sites. At that time, US assistance was seen as a quid pro quo for Mexican help in returning stolen autos. US-Mexican negotiations led to a treaty to protect these artifacts. At the same time, source countries were negotiating the UNESCO Convention. The document contemplated that signatories would enforce each other's export controls on ancient artifacts. The US Delegation opposed giving source countries such a "blank check" because there was concern that broad declarations of national ownership would end the international interchange of cultural artifacts. Feldman indicated some felt the Convention and the implementing legislation went too far. Others, thought they did not go far enough. Feldman expressed pride, however, that the Convention now reflects international norms.

Jim Fitzpatrick discussed the CPIA. He represented the interests of the antiquities trade during the decade long debate about implementing the UNESCO Convention. Fitzpatrick stated that the CPIA sought to balance the interests of all the stakeholders, but that balance has been lost in recent years as reflected in the broad Chinese restrictions and the imposition of restrictions on Cypriot coins. In so doing, Fitzpatrick criticised State Department secrecy and the use of restrictions as a diplomatic bargaining chip. He further indicated that State has read the "concerted international response" requirement out of the statute. Under that provision, the State Department is required to find that the United States is acting in concert with other nations unless it can also find that there can be a substantial benefit in the United States acting alone to deter a serious situation of pillage.

Patty Gerstenblith argued that import restrictions under the CPIA were necessary to disincentivize looting. She noted the CPIA only applies to limited categories of cultural goods, i.e., archaeological and ethnological artifacts. She also indicated that given the accession of so many countries to UNESCO, the concerted international response requirement has been met. She also argued that the concerted international response requirement does not anticipate that other countries will apply restrictions in the same way the US does. Indeed, Switzerland is the only country that applies the UNESCO Convention in a similar manner as the US does.

Josh Knerly, counsel for the AAMD, expressed concern that as broad as import restrictions are, US law enforcement has gone even further to effectuate foreign patrimony laws. In particular, law enforcement has used civil forfeiture and criminal law to restrict the import of cultural artifacts not governed under the CPIA. He criticised the recent forfeiture of an Egyptian sarcophagus, which was based on an Egyptian law dating back to 1874. He expressed the concern that Customs has taken the position that it will enforce any cultural patrimony law whatsoever, even those dating back to the 19th century. He queried if Customs will apply Italian cultural patrimony laws dating back to 1939, what is the point of having import restrictions on Italian cultural goods that only relate to artifacts with no documentary history after 2001? He also criticised US law enforcement for using the Archaeological Resources Protection Act as a basis to seize foreign cultural property. He explained that a fair reading of the statute and its legislative history suggests that it is limited to artifacts taken from public and Indian lands.

Nancy Wilkie, a past AIA President and current CPAC member, explained how Clemency Coggins first brought attention to the looting problem back in the 1970's when she was challenged to demonstrate the seriousness of the issue to Latin American sites. Ms. Wilkie showed slides of looted sites in Peru and Cambodia. She indicated that eBay has been an outlet for looted artifacts in the past, but now is being used by indigenous populations to produce deceptive fakes. She also criticised sales of duplicates, arguing that they should be retained for future study. In closing, she indicated that ancient cultures are important to modern nation states. As an example, she showed a picture of the Cambodian flag and its depiction of Angkor Wat.

A question and answer period followed and then Mark Feldman summed up. In so doing, he confirmed that the "concerted international response" requirement was the focus of much debate before the CPIA was passed. He also indicated that State Department secrecy has even thwarted Congressional requests for information.

All the participants prepared papers that were included with the program materials. Hopefully, these papers will be made available to interested members of the general public in the future.

Misplaced Enforcement Priorties?

This week's Coin World editorial (April 26, 2010) takes the U.S. Government to task for its enforcement priorities. Coin World states even as overzealous State Department officials are pressing for the enforcement of foreign patrimony laws against U.S. citizens using controversial interpretations of U.S. law, U.S. law enforcement has shown a distinct lack of interest in enforcing U.S. laws against counterfeiting and selling fake U.S. collector's coins, particularly quite deceptive ones from China. For more on Chinese fakes, see http://culturalpropertyobserver.blogspot.com/2008/12/scary-counterfeit-coins-from-china.html

Coin World Coverage of Possible Consideration of Coins in Italian MOU

Collector, auctioneer, and numismatic author Steve Roach has posted his story about the Italian MOU that will appear in the May 3rd edition of Coin World on his own blog. It can be viewed here: http://theartoflaw.blogspot.com/2010/04/cpac-to-address-import-restrictions-on.html

State Department Does its Part to Take Trust in Government to New Lows

News programs and the Internet have been carrying the results of a Pew Research poll that suggests nearly 8 of 10 Americans don't trust the U.S. Government to do the right thing. See http://apnews.myway.com/article/20100419/D9F64DD80.html

Unfortunately, the U.S. State Department Bureau of Educational and Cultural Affairs has been doing its part to help take these numbers to new lows.

First, according to a Declaration filed by CPAC's former Chairman in conjunction with Freedom of Information Act litigation, State rejected his Committee's recommendations against import restrictions on coins of Cypriot type, and then mislead the public and the Congress about the Committee's true recommendations. See http://culturalpropertyobserver.blogspot.com/2009/08/cpac-chair-kislaks-views-of-eca-and.html

Next, the State Department imposed broad import restrictions on Chinese cultural goods even though identical unprovenanced artifacts are openly available within China itself and no other market nation restricts imports of Chinese artifacts like the U.S. now does. That has been a boon to Chinese auction houses, but has achieved little else. See http://culturalpropertyobserver.blogspot.com/2009/12/treasures-reclaimed-economist-reports.html and http://culturalpropertyobserver.blogspot.com/2009/06/chinese-import-restrictions-have.html

Now, despite President Obama's promises of open and accountable government, the State Department seems intent on rushing through reconsideration of the current MOU with Italy, and in so doing, keeping the Coin Collecting Community guessing whether Italy has even asked that import restrictions be extended to ancient coins. See http://culturalpropertyobserver.blogspot.com/2010/04/state-department-provides-short-notice.html and http://culturalpropertyobserver.blogspot.com/2010/04/accg-fax-wizard-assists-collectors.html

The irony, of course, is that the larger mission of the Bureau of Educational and Cultural Affairs is to promote the virtues of American Democracy abroad.

Long Running True Prosecution to End in Italy?

There is an odd story on the SAFECORNER blog: http://safecorner.savingantiquities.org/2010/04/charges-against-true-and-hecht-to-be.html

It states,

Thursday, April 15, 2010

Charges against True and Hecht to be dropped

Sources close to the case have confirmed that Marion True's and Bob Hecht's conspiracy trial in Rome will not end by October 2010. At that time, further prosecution will be barred by a statute of limitations; the case will be dismissed and charges dropped.

As an American lawyer, I find it quite strange that the statute of limitations can run AFTER a case is filed. In contrast, in the U.S. the limitations period typically runs UNTIL a case is filed. See http://legal-dictionary.thefreedictionary.com/Statute+of+Limitations

Some months ago, I supported the call of a prominent Italian-American Magazine that True be freed. http://culturalpropertyobserver.blogspot.com/2009/11/italian-american-magazine-calls-for-end.html

In any event, at that time, I also suggested that a resolution may be engineered to coincide with the State Department's consideration of a renewal of the current MOU with Italy. If the SAFECORNER blog is to believed, my prediction about True would seem to have come true already.

ACCG Presses Grass Roots Campaign on Italian MOU

The Ancient Coin Collectors Guild has issued the following press release about its grass roots campaign to keep coins off the designated list of artifacts subject to import restrictions in conjunction with the prospective extension of the US MOU with Italy. See http://www.prnewswire.com/news-releases/coin-collectors-call-for-grassroots-response-to-dos-90744069.html

By its very nature, an extension suggests a continuation, not a major expansion of a current agreement to include a whole new class of artifacts avidly collected by tens of thousands of Americans . Unfortunately, based on the last minute inclusion of coins in the extension of the Cyprus MOU in 2007 (publicly announced the day of the CPAC hearing), anything is possible when the secretive State Department bureaucracy is running the show.

Report on the CUNY Center For The Humanities Symposium

Rick Witshonke has kindly allowed me to post his report about a recent symposium at CUNY Center for the Humanities:

Report on the CUNY Center For The Humanities Symposium
“Who Protects Antiquity”, 4/7/10

Rick Witschonke

The Symposium was moderated by Joel Allen, CUNY Professor of Classics and History, and featured James Cuno, Director of the Art Institute of Chicago and author of “Who Owns Antiquity?”; Larry Coben, Executive Director of the Sustainable Preservation Initiative (http://sites.google.com/site/sustainablepreservation/home); and Larry Rothfield, Research Associate at the U. of Chicago Cultural Policy Center (http://culturalpolicy.uchicago.edu/people/). The session lasted 90 minutes, and there were about 70 attendees. After a brief introduction by Allen, each of the three speakers made 10-15 minute presentations. This was followed by a 20 minute roundtable discussion, and then questions from the audience were entertained.

Cuno summarized the main points of his book: that restrictive cultural property laws 1) restrict access to antiquities, 2) concentrate the risk of destruction, and 3) politicize culture. He used the Euphronius to illustrate how an object that was originally Greek became a potent Italian cultural symbol through politicization. And he renewed his call for a return to partage.

Rothfield decried the ongoing looting and site destruction. He cited the Schoyen incantation bowel that describes an important Talmud sage as living next door – but with no provenance we don’t know where that was. He pointed out that we need to focus on protection of what is still in the ground – not ownership or restitution of previously looted objects. He described the two primary causes of site looting as economic development and looting, both requiring different approaches. But US law can affect only the demand side of the looting process, and private sales and an opaque chain of custody make it nearly impossible to trace objects, so Rothfield proposes legislation that would require that all sales be reported, and that a national registration system be set up. He also suggested that strong source country laws backed up by force were necessary but not sufficient to control looting. But who should pay for this increased surveillance? Rothfield suggests that US antiquities be taxed, and the money go to support site protection. Or that major museum donors be asked to fund an “Institute for the Study of Looting” in return for loans of objects from source countries.

Coben agreed with Cuno that encyclopedic museums are a good thing, and that archeologists and museums must move past the rhetoric and work together to save antiquity before it is too late. But attacking source countries as retentionist will not work. Coben pointed out that looting is not the only cause of loss of objects and context. War, extreme weather, erosion, tourism, and neglect are all part of the problem. He proposes that working with locals to find and fund alternative uses of the site (as he has been doing in Peru) may be the way forward. Then, responding to points that Rothfield and Cuno had made, he said that museums deserved “a seat at the table” since they had largely reformed their acquisition policies, but that the percentage of museum-quality objects is very small, and partage is a search for objects, not knowledge. And, in his view, no source country would consider exchanging long term loans of its objects in return for site protection funding. In short, the issue of ownership is now settled, so let’s move on.

Allen then initiated the roundtable by posing several questions to the speakers. First, he asked how, in transferring funds to source countries, one could avoid the dissipation of those funds through local corruption. Coben responded that the funds should be small amounts, distributed directly to locals (not through the government). He told the story of the Peruvian site where he had paid $50 to build a gate on the only road to the site. The locals then collected $10 each from visitors, and generated what was, for them, a significant revenue stream, which motivated them to protect the site. Unfortunately, later, some NGO came in, removed his gate, and spent several hundred thousand dollars to build a large building, which now stands empty. Rothfield responded that there was no one solution, and different tools must be used. For example, funds could be used to purchase satellite images of a site (which can cost $300,000) to detect looting. Cuno pointed out that we already have experience in providing aid to many of these countries. He also mentioned that he thought Rothfield’s proposal for a tax on antiquity sales was interesting. But he wondered why a straightforward quid pro quo like partage couldn’t work as well. He then admitted that the practice was, perhaps, tinged with colonialistic overtones, and perhaps long term loans (rather than outright ownership) might work. He also made the point that “long-term” must mean longer than the 4 years that Italy now offers, and that Italy only offered loans to museums that had repatriated objects, leaving others out. Rothfield then pointed out that, if loans rather than ownership was purposed, dropping the heavily loaded term partage might facilitate negotiations with source countries. And funding excavations was one way that museums could assist. Coben then made the point that museums have long flaunted local laws, thereby losing their standing in the source countries and destroying trust.

Next, Allen asked about the destruction caused by economic development. Coben said it couldn’t be prevented, and rescue archeology was the only answer. Rothfield suggested that, for major projects funded by the World Bank, heritage protection guidelines were being developed.

Allen then asked for questions from the audience. Phillipe de Montebello wanted to correct what he thought was a misstatement by Rothfield, asserting that the Met’s new acquisition guidelines apply equally to purchases and donations. He also made the point that 99% of the antiquities market was no longer in the US. Another audience member pointed out that there was little ethnic diversity in the debate, as evidenced by the makeup of the panel. Coben responded that different approaches were necessary for each site, and involvement of knowledgeable locals was essential. Later, another audience member also asked about the involvement of indigenous peoples, such as the Khmer Rouge at Angor Wat. Another questioner asked about World Bank and International Development Bank guidelines for site preservation. Coben responded that these organizations should stay out of the discussion, because they are out of touch with the local situation, and usually cause problems by treating archeological sites the same as shopping malls. I then asked why museums were still the primary spokespeople for the demand side of the debate, when they were now (with the new AAM and AAMD guidelines) very small players in the market. I suggested that perhaps dealers and collectors should be represented in the discussion. Rothfield responded that, because of the opacity of the market, he doesn’t know who the collectors are, and that regulating the market would correct this.

ACCG Fax Wizard Assists Collectors Wishing to Comment to CPAC

The ACCG Fax Wizard has been put into operation to assist ancient coin collectors to comment to CPAC about the upcoming renewal of the Italian MOU. The applicable Federal Register notice does not indicate whether Italy has formally requested that import restrictions on coins be added to the current restrictions. Unfortunately, based on prior experience with the Cyprus MOU, without an unambiguous statement from the State Department that coins are "not on the table," one has to assume CPAC will be asked to consider changing the current exemption.

To access the Fax Wizard see: http://www.vcoins.com/fax/

Those who have their own fax machines should fax the State Department directly as set forth here: http://culturalpropertyobserver.blogspot.com/2010/04/state-department-provides-short-notice.html

While form letters are easy to use, it is always better to express ones views individually. CPAC will be interested in how import restrictions might negatively impact Americans' ability to preserve, study and display and appreciate ancient Greek and Roman coins struck in Italy.

Egyptian Conference Shows 1970 Date Carries Little Meaning

My prior blog, "1970 Provenance No Safe Harbor for Egyptian Antiquities" see http://culturalpropertyobserver.blogspot.com/2010/03/pre-1970-provenance-no-safe-harbor-for.html has received further confirmation during the proceedings of Egyptian Antiquities Pharaoh's repatriation conference in Cairo. See http://www.bloomberg.com/apps/news?pid=email_en&sid=aONUei5s1Gss

“Forget the legal issue,” Hawass said. “Important icons should be in their motherland, period.”

It seems concessions by the museum community to accept a 1970 provenance date have only encouraged demands for "more."

I suppose some will claim that Hawass' statement only applies to "important icons," but how one defines an "important icon" is also in the eyes of the beholder too. As set forth above in my original blog, apparently both Hawass and U.S. Customs consider a rather ordinary Egyptian sarcophagus to be an important enough "cultural icon" to throw the "1970 rule" out the window as well.

State Department Provides Short Notice to Public for Comments on Renewal of Italian MOU

Tomorrow's Federal Register will carry this notice from the State Department Bureau of Educational and Cultural Affairs about a May 6th public hearing on the renewal of the Italian MOU. Public comments are now due a mere two weeks from now, on April 22, 2010.

Why the rush? The current MOU with Italy does not expire until January 19, 2011. And why only two weeks for public comment? Certainly, the Italian MOU potentially impacts more American collectors, museums and antiquities dealers than any other, except perhaps the China MOU.

Is this a thinly disguised effort by the State Department bureaucracy to limit public comment despite President Obama's promises of open government?

In any event, here is the notice which the State Department Cultural Heritage Center sent today to parties on their e-mail distribution list:

The Department of State’s Cultural Heritage Center would like to draw your attention to an announcement that will be published in tomorrow’s Federal Register (http://www.federalregister.gov/OFRUpload/OFRData/2010-07898_PI.pdf).

[Billing Code: 4710-05]
DEPARTMENT OF STATE
[Public Notice 6945]

Notice of Meeting of the Cultural Property Advisory Committee
In accordance with the provisions of the Convention on Cultural Property Implementation Act (19 U.S.C. § 2601 et seq.) (the Act) there will be a meeting of the Cultural Property Advisory Committee on Thursday, May 6, 2010, from 9:00 a.m. to approximately 5:00 p.m., and on Friday, May 7, 2010, from 9:00 a.m. to approximately 3:00 p.m., at the Department of State, Annex 5, 2200 C Street, N.W., Washington, D.C. During its meeting the Committee will review a proposal to extend the “Memorandum of Understanding Between the Government of the United States of America and the Government of the Republic of Italy Concerning the Imposition of Import Restrictions on Categories of Archaeological Material Representing the Pre-Classical, Classical and Imperial Roman Periods of Italy” signed in Washington, D.C. on January 19, 2001 and amended and extended in 2006 through an exchange of diplomatic notes. The purpose of this review is for the Committee to make findings and a recommendation regarding the proposal to extend this Memorandum of Understanding.

The Committee’s responsibilities are carried out in accordance with provisions of the Act. The U.S. – Italy Memorandum of Understanding, as amended and extended, the Designated List of restricted categories, the text of the Act and related information may be found at
http://exchanges.state.gov/heritage/culprop.

Exercising delegated authority from the President and the Secretary of State, I have determined that portions of the meeting on May 6 and 7 will be closed pursuant to 5 U.S.C. § 552b(c)(9)(B) and 19 U.S.C. § 2605(h), because the disclosure of matters involved in the Committee’s proceedings would compromise the Government’s negotiation objectives or bargaining positions on the negotiations of this Memorandum of Understanding. However, on May 6, the Committee will hold an open session, 9:30 a.m. to approximately 11:30 a.m., to receive oral public comment on the proposal to extend the Memorandum of Understanding. Persons wishing to attend this open session should notify the Cultural Heritage Center of the Department of State at (202) 632-6301 by Thursday, April 22, 2010, 5:00 p.m. (EDT) to arrange for admission, as seating is extremely limited.

Those who wish to make oral presentations should request to be scheduled and submit a written text of the oral comments by Thursday, April 22, 2010, to allow time for distribution of these comments to Committee members for their review prior to the meeting. Oral comments will be limited to five minutes each or less to allow time for questions from members of the Committee and must specifically address the determinations under section 303(a)(1) of the Act, 19
U.S.C. § 2602(a)(1), pursuant to which the Committee must make findings. This citation for the determinations can be found at the web site noted above. The Committee also invites written comments and asks that they be submitted no later than April 22, 2010. All written materials, including the written texts of oral statements, should be faxed to (202) 632-6300, if 5 pages or less. Written comments greater than five pages in length must be duplicated (20 copies) and mailed to Cultural Heritage Center, SA-5, Fifth Floor, Department of State, Washington, D.C. 20522- 0505. Express mail is recommended for timely delivery.

Date: MAR 29 2010 _______________________
Judith A. McHale
Under Secretary
Public Diplomacy and Public Affairs
Department of State
[FR Doc. 2010-7898 Filed 04/06/2010 at 8:45 am; Publication Date: 04/07/2010]

Addendum: A review of the Federal Register Notice for the September 8, 2005 CPAC hearing on the last Italian renewal confirms that the public was given from August 1-24, 2005 to comment on the extension. Here, the State Department has only afforded the public a little over two weeks to comment. The 2005 notice can be found at 70 Fed. Reg. 44146-47 (Aug. 1, 2005).

More on Repatriation of Egyptian Sarcophagus

I've now seen the forfeiture complaint that led to the recent repatriation of an Egyptian sarcophagus that had been imported into the U.S. from Spain. Here is the reaction of Bill Pearlstein, a well known practitioner in the area of cultural property law, on his own review of the document:

This forfeiture doesn't seem to be justified on either the law or the facts.

Under the applicable McClain and Schultz cases, property is considered stolen under US criminal law if an exporter knows (or consciously avoids knowing) that the property was exported from a foreign nation at a time when that nation had enacted a clear and unambiguous national ownership law embracing that property.

In this case, there was no showing of when the piece was exported from Egypt, what the law was at the time of export or what the exporter knew at the time of export. The Government's conclusions at Para 50-51 of the complaint (i.e., that the piece was exported in violation of Egyptian law and stolen from Egypt) are simply unsupported assertions. In the absence of any proof of the facts or circumstances surrounding export, how could the sarcophagus be considered stolen under McClain? Moreover, it is hornbook law that violation of a foreign export control (as opposed to an ownership law) is not enforceable in US courts. Reliance on a criminal doctrine stripped of need to show scienter is bad law. This case demonstrates the intellectual bankruptcy of civil forfeiture.

The last time I defeated a complaint for civil forfeiture of an antiquity, the US Attorney admitted to me that the US Government does not take the position that anything without a firm provenance is stolen. But that is apparently so only when the forfeiture is contested. If not, the Government will try to get away with seizing whatever it can, however improbable the cause. Unfortunately, it usually does, given that the legal fees in defending the seizure often outweigh the value of the property.

Two tips for importers fighting a forfeiture: First, convert the action into a civil litigation, so that the government is forced to articulate in a complaint the facts and legal theories upon which the forfeiture is based. These are often vulnerable or, as in this case, merely speculative. But you can't win if you don't fight. Second, if you win, consider suing the Government for damages for wrongful forfeiture. It takes guts and costs legal fees, but if your business is harmed you may have a claim for money damages. Nothing will ruin the day of your average prosecutor or customs agent more than fighting, losing and then getting sued for damages. But again, you can't win if you don't fight.

In the words of the Beastie Boys: "You gotta fight. For your right. To paaartay."

Revised MOU with El Salvador Available

The State Department Bureau of Educational and Cultural Affairs Cultural Heritage Center has published the text of revisions to the MOU with El Salvador on its website. For more, see http://exchanges.state.gov/heritage/whatsnew.html and http://exchanges.state.gov/media/office-of-policy-and-evaluation/chc/pdfs/sv2010mouextameng.pdf

I discussed the extension of the MOU in an earlier post. See http://culturalpropertyobserver.blogspot.com/2010/03/mou-with-el-salvador-extended.html

I'm glad to see the revised MOU seeks to address an El Salvadoran archaeologist's suggestion that artifacts be made available for display to El Salvadoran immigrants in the United States.

According to Art. II Sec. D:

Both governments shall endeavor to permit the exchange of pre-Columbian archaeological material under circumstances in which such exchange does not jeopardize the cultural patrimony of El Salvador, such as through temporary loans for exhibition purposes and study abroad, to benefit the people of both countries, including persons of Salvadoran heritage currently living in the United States of America.

On the other hand, I am sorry also to note that there is no reference to fostering legitimate markets in El Salvadoran material, despite the fact that at least some of this material is likely redundant to that already held in El Salvadoran public and private collections.

Somebody needs to help finance the study and appreciation of El Salvadoran cultural material in the United States for the benefit of El Salvadoran immigrants in a money-starved environment. Something also tells me that collectors could help do this, if only they were actually encouraged to do so rather than being discouraged from collecting El Salvadoran material at all.

New Egyptian Museum to Open in Washington, D.C. Area

Egyptology Today (Egypttod.com) reports that a new museum affiliated with the Egyptian Government will open in the Washington, D.C. area:

New Egyptian Museum to Open in Alexandria, Virginia

Alexandria, Egypt, April 1, 2010: The Egyptian Government announced today that it will open a new museum devoted to ancient Egypt in a Washington, D.C. suburb. World famous Egyptologist Zani Hanass made the announcement during a hastily arranged press conference held at the new Library of Alexandria, Egypt. The new museum will replace a Masonic memorial to George Washington, built in Alexandria’s sister city in Virginia. The monument, built in the 1920’s, is based on the imagined design of the famous Pharos Lighthouse. According to Hanass, “We are proud to put this old memorial to the first American president to good use. We will install artifacts of Egypt’s great culture in a building that reminds Americans about what they owe to us.” Funding will come from various American sources, including the U.S. State Department Bureau of Educational and Cultural Affairs Ambassador's Fund. Most of the artifacts will come from Egyptian storerooms, but Hanass also held out the possibility that artifacts repatriated from American collectors and museums will also end up on display. Asked to comment, Gill Barmore, a spokesman for the archaeological advocacy group “Saving Antiquities from Everyone” was ecstatic. “Now we know where all those orphan Egyptian antiquities can be sent,” Barmore stated excitedly. Admission prices for the new museum have not been set, but Hanass is confident Americans will pay almost anything based on the success of the King Tut travelling show. These monies will be used to both support digs in Egypt as well as to help pay to erect a monolithic statue of Hanass in Pharonic garb near the museum’s entrance.

Comment: I've found this picture of the site of the future museum on "Flickr." See http://www.flickr.com/photos/leonandloisphotos/2514452271/in/set-72157602208248158/