Monday, October 1, 2012

Has State and CBP Exceeded Their Authority in Imposing Import Restrictions on Ecclesiastical Artifacts?

The CPIA only allows for restrictions on archaeological or ethnological artifacts.   The latter are defined as the products of tribal or nonindustrial societies.  19 U.S.C. Section 2601 (2) (C) (ii).  The Senate Report further makes clear that ethnological artifacts are only supposed to encompass "tribal" or "primitive art," such as masks, idols or totem poles.  (Senate Report at 5.)

The recently announced expansion of Guatamalen import restrictions thus once again raises the question whether State and CBP have exceeded their authority, this time by adding restrictions on ecclesiastical artifacts that date as late as 1821.  Here is a list of the newly restricted artifacts.  Can State and CBP fairly claim they encompass "tribal" or "primitive" art?

Ecclesiastical Ethnological Material (Dating From Approximately A.D. 1524 to 1821)

VI. Sculpture—Sculptural images of scenes or figures, carved in wood andusually painted, relating to ecclesiastical themes, such as the Virgin Mary, saints,angels, Christ, and others.

A. Relief Sculptures—circular-shaped, low-relief plaques, often polychrome wood, relating to ecclesiastical themes.

B. Sculpted Figures—wood carvings of figures relating to ecclesiastical themes, often with moveable limbs, usually with polychrome painting of skin and features; clothing might be sculpted and painted, or actual fabric clothing might be added.

C. Life-Sized Sculptures—full figure wood carvings of figures relating to ecclesiastical themes, often with polychrome painting using the estofado technique, and occasionally embellished with metal objects such as halos, aureoles, and staves.

VII. Painting—paintings illustrating figures, narratives, and events relating to ecclesiastical themes, usually done in oil on wood, metal, walls, or canvas (linen, jute, or cotton).

A. Easel Paintings—pictorial works relating to ecclesiastical themes on wood, metal, or cloth (framed or applied directly to structural walls).

B. Mural Paintings—pictorial works, executed directly on structural walls, relating to ecclesiastical themes.

VIII. Metal—ritual objects for ceremonial ecclesiastical use made of gold, silver, or other metal, including monstrances, lecterns, chalices, censers, candlesticks, crucifixes, crosses, and tabernacles; and objects used to dress sculptures, such as crowns, halos, and aureoles, among others.

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