Wayne Sayles and the Thrill of Discovery

Wayne Sayles speaks about coin collecting and the thrill of discovery it has brought him and other collectors.  But Wayne is no ordinary collector.  In addition to writing extensively on numismatics, Wayne started a magazine for ancient coin collectors, and founded the Ancient Coin Collectors Guild, an advocacy group for the interests of collectors and the small businesses of the numismatic trade.  The preservation, study and conservation of ancient coins has become Wayne's life's work after many years serving our country in the military. Wayne has always been about sharing such knowledge with anyone and everyone with an interest in history.   And that's what is should be all about.

Cambodia's Moral Case for Returns Falters

Just as pressure is mounting for the repatriation of Khmer artifacts long gone from the modern nation state of Cambodia, serious questions are being raised about the present-day Cambodian Government's own ability to protect artifacts in its care as well as the depth of its own committment to justice for sins of the past. First, it has been revealed that relics of the Buddha have been stolen under the nose of and perhaps with the connivance of government guards.  Second, even though the U.S. State Department sheepishly certified in the Federal Register released on Christmas Day that Cambodia is belatedly doing something to clean up the corruption that has hampered the tribunal that is supposed to be bringing Khmer Rouge war criminals to justice, little has been accomplished to date.

If Cambodia has such unclean hands, why is the U.S. Government spending considerable tax payer dollars on its behalf to force American institutions and collectors to repatriate artifacts long in this country?  Shouldn't we at least demand better site security and the prompt prosecution of war criminals before our State and Justice Departments sacrifice American interests at the behest of Cambodian nationalists and American archaeologists?

Consignors to Remain Anonymous

The New York Court of Appeals, the state's highest court, has ruled that auction houses can maintain the anonymity of consignors to auctions in the state.

As the New York Times has observed:

Anonymity is often prized in such transactions as a matter of personal privacy. It also and allows institutions quietly to sell items from their collections that they no longer need. In some cases it can also cloak the embarrassment of debt or help sellers avoid setting off family conflicts over the disposition of inherited assets.

In contrast, commentators in the archaeological blogosphere had hoped the lower court's ruling, requiring the identities of consignors to be disclosed, would stand.    But why would they want this information other than to harass the sellers of "cultural property" they believe should be repatriated.  So, its probably  a good thing the Court of Appeals has ruled as it did. 

Archaeology Magazine Publicizes Unprovenanced Jewish Tombstone

Archaeology Magazine, the official organ of the Archaeological Institute of America, has publicized a wonderful story of how students from Yeshiva University helped decipher an unprovenanced Jewish Tombstone from what was a Christian city in Jordan.  Yes, we can learn a lot from unprovenanced artifacts, despite what hard-liners in the AIA and archaeological blogosphere might say.

Saved for Destruction?

While the vast majority of comments to Tom Mashberg's article about the Annenberg Foundation's purchase of Hopi artifacts from a French auction so they could be returned to the tribe were complimentary of the effort, as far as I could tell all ignored the fact that such artifacts will likely be buried or otherwise allowed to disintegrate:

"The Hopi have not identified their plans for these artifacts on their return, but they are not viewed as art objects or housed in museums. Typically, Katsinam are still used in spiritual ceremonies or are retired and left to disintegrate naturally." 

Under the circumstances, perhaps one should question the wisdom of the effort, particularly given information in one of the comments that such items were openly sold by some Hopi at least as recently as the 1970's.  Tribes seldom speak with one voice and one wonders whether at least some tribal members would have rather have had such money put to other use on the Reservation.  And there is a larger question:  Is repatriation ever warranted when it leads to destruction?

Poly Rules

The New York Times comments on Poly Group's rise to Number Three Auction House in the World. While American auction houses, museums and collectors can no longer easily import Chinese artifacts from abroad due to import restrictions on cultural goods, Poly has no such worries.  Indeed, the politically connected generals of the People's Liberation Army that run Poly don't have much to fear from Chinese regulators either.  As Chinese art experts have observed,

"[I]t is Poly’s relationship with the state and the reach of its affiliated businesses that have fostered its ascension in the art world, experts say. They claim that, because of Poly’s ties to elites in the Chinese government, it enjoys greater freedom in moving cultural relics in and out of the country and more leeway from the tax bureau. Poly also can be more dismissive of recent efforts, led by the trade association, with the of commerce and culture ministries, to reform the Chinese art market, the experts say.

'It’s a privileged institution that is more powerful than what we would consider some of the lesser state agencies,” said Tai Ming Cheung, director of the Institute on Global Conflict and Cooperation at the University of California, San Diego, and an expert on Chinese state companies.'"

The current Chinese MOU must be renewed in January or it will lapse.  At a public session awhile back, CPAC received plenty of evidence that the current MOU does nothing but promote the interests of politically connected Chinese business interests at the expense of American collectors, museums and auction houses.   But will CPAC and the State Department decision-maker listen?  Or will the U.S. Cultural bureaucracy's knee-jerk repatriationist stance carry the day once more?

For those Bold Enough to Stand Up Against the US Government....

Sotheby's agreement to drop its efforts to contest the forfeiture of a Khmer Statue to Cambodia leaves several questions that will still need to be addressed in any subsequent forfeiture action relating to Khmer antiquities.

1.  To prevail, the government still must be able to link the artifact in question to a specific site within the confines of modern Cambodia.  That was done here, but it's unclear to CPO whether that could be done with respect to all the other Khmer artifacts the Cambodians and their supporters in the US Cultural bureaucracy and archaeological communities may have their sights on.

2.  If that is done, the government must then either be able to point to an illegal import or prove that the artifact was stolen under a foreign cultural patrimony law that vested clear title to Cambodia.  This issue was raised, but again not conclusively decided in the Sotheby's case.

3.  There is also the issue whether Cambodia consistently applies such law at home. For example, during discussions about a renewal of a MOU with Cambodia, it was disclosed that at least one high Cambodian government official has a collection of similar antiquities.  If so, how can the U.S. Government claim all such antiquities are Cambodian state property?

4.  It now appears that the Khmer Rouge may have sold the Koh Ker statue.  If so, doesn't that also undercut any Cambodian Government claim to the statue?  As abominable a regime as the Khmer Rouge was, it was also considered the lawful Government of Cambodia for a time. So, if an artifact was sold by the Khmer Rouge, the "lawful rulers" of Cambodia, how could it be considered "stolen" now?

5.  What part did the US State Department and its Cultural Heritage Center play in convincing the Department of Justice to take the Sotheby's case and in funding groups like Heritage Watch which have pressed for repatriation of Khmer artifacts?   To the extent such claims are "ginned up" by the State Department rather than the Cambodians themselves, that would presumably have some impact on a jury's views of the matter.

There will, of course, be a concerted effort to pressure other museums and perhaps collectors to give up similar art works without a fight.  That may very well happen given the cost and difficulties private parties face when going up against the U.S. Government.  There is also the issue of whether the current owner of the artifact is willing to take heat in the press, let alone the archaeological blogosphere.  So to put up a fight, one needs not only to be well funded, but to have considerable intestinal fortitude as well. Still, for those bold enough to fight, the relevant issues have not been conclusively decided.

Sotheby's Throws in the Towel

The New York Times reports that Sotheby's and the consignor of a Khmer statute have decided to drop their effort to retain title to the object in the face of a forfeiture action brought by federal prosecutors. Experienced cultural heritage lawyer  Michael McCullough predicted this result months ago after a federal district court denied Sotheby's motion to dismiss the action.  The costs and difficulties of pursuing such a matter against the federal government are beyond the wherewithal of most litigants, even it seems one as wealthy as Sotheby's.   Sotheby's had a decent legal case, if not the great moral one.  In CPO's view, it's thus too bad the federal government wasn't put to its proofs.  As it is, by folding Sotheby's will only embolden the State Department's Cultural Heritage Center and its "Cultural Antiquities Task-force" to press its repatriationist agenda even further.

Is the Latest Bulgarian Bust for Real?

Despite the uncritical coverage in the archaeological blogosphere, one has to wonder about the accuracy of recent press reports that claim Bulgarian police have smashed a ring of  Thracian tomb raiders.  Though admittedly the photo that accompanies the story is not very clear, from what I can tell it only shows bright, regularly shaped modern coins and artifacts.  One would expect instead to see darkly colored patinas associated with long burials if this is really a major bust of "tomb raiders."

During CPAC's consideration of the proposed Bulgarian MOU, it was revealed that Bulgaria's corrupt police all too often hype such seizures in order to make it appear that their efforts are far more effective than they truly are in reality.   The picture accompanying this story raises the question if the Bulgarian police are still more interested in looking good rather than doing good in their jobs.  Hopefully, there will be some clarification of whether the image is that of the actual seizure and, if so, whether the coins are of ancient or modern origin.

Rescue Archaeology?

This article appears to suggest what has been characterized by American archaeologists  and their allies in the State Department's Cultural Heritage Center as looting in China may actually be rescue archaeology of a sort.  Presumably, this is as the article suggests illegal under China's draconian laws that declare even artifacts found on private property to be property of the State.  However, if the "looters" do not save the objects from being ground into dust by construction equipment, who will?

Perhaps Not Everything is Looted

David Gill has written this post that suggests that not everything in the inventories of dealers associated with the Medici archive was looted.  I've heard the same from others associated with the antiquities trade.  That makes sense.  These individuals dealt with many antiquities over their long careers.  It's good that Gill has belatedly recognized as much.

Like Sending Back Art Nazis Looted

Anyone who still thinks the Iraqi Jewish Archive should be repatriated to Iraq should read this story about a Canadian doctor born an Iraqi Jew who just wants her own property back.  No, despite some disinformation in the archaeological blogosphere, the issue is not Iraqi Government documents "about Jews."  Rather, the issue is about documents taken from Iraqi Jews who were the subject of ethnic cleansing by an anti-Semitic Iraqi state.

The documents should go to their true owners or their representatives, not the country that hounded them to leave.  It's as simple as that.

Maritime Archaeology or Imperialism?

The Wall Street Journal reports on China's use of maritime archaeology to help project its power over disputed waters.  More evidence, if any was needed, that the PRC-- like other authoritarian states through history-- mainly values archaeology as a means of justifying its own nationalistic claims.  Perhaps, the US State Department Cultural Heritage Center and the Bureau of Educational and Cultural Affairs should take into account this reality before renewing the MOU with China.  But will they? Or, will the farce that the MOU  with China just furthers archaeology and cultural exchange be allowed to continue?

Prominent Israeli Antiquities Dealer Sues IAA

A prominent Israeli antiquities dealer has filed suit against the Israeli Antiquities Authority.   He alleges that the IAA damaged his reputation in prosecuting a lawsuit charging him with forgery of ancient artifacts.  The IAA's lawsuit subsequently fell apart in spectacular fashion before an Israeli court.  The antiquities dealer, Robert Deutsch, says he is entitled to some $3 million in damages.   American collectors, Museums and dealers may find some of the allegations on how he was treated sound familiar.  It will be interesting to see how this matter progresses in court.

Almost 50 House Members Urge State Department to Turn Over Iraqi Jewish Archive to Iraqi Jews

Haaretz is reporting that almost 50 Members of the US House of Representatives have asked the State Department to turn over the Iraqi Jewish Archive to Iraqi Jews.   And no wonder.  As Haaretz explains,  

Members of Iraq's Jewish community, many of whom fled the country in previous decades, say the materials were forcibly taken from them and should not be returned.

Edwin Shuker, 58, who escaped to Britain with his family from Baghdad in 1971, said he had discovered his long-abandoned school certificate on display as part of the National Archives exhibition.

"This is more than a school certificate - it is the identity we were forced to leave behind," he told Reuters, likening the document's journey and survival to his own.

"I would like to be reassured that my children and future generations will have unrestricted access to this collection."

Yet, the State Department ignored another bipartisan letter from 12 members of Congress raising concerns with the then prospective inclusion of coins in the Italian MOU.  So, one has to wonder whether the State Department will actually address these concerns though we are told they have been heard "loud and clear." 

More Evidence MOU with Italy is a Fraud

I heard it for myself at CPAC hearings concerning the MOU with Italy.  Here was the deal as spun by the allies of the Italian Cultural Bureaucracy and the State Department Cultural Heritage Center in the Archaeological Institute of America and related groups:  American collectors and museums would no longer be able to import unprovenanced artifacts.  In return, the Italian Cultural Bureaucracy would allow long term loans of artifacts to American museums.

But what is the reality?  Loans in fact only go to US Government institutions like the National Gallery of Art and museums that have repatriated artifacts.  The good stuff only gets displayed here in the US for a short time and with substantial fees attached.  And now, even this "cultural exchange" is in jeopardy as Sicily has decided to ban loans of important pieces from its own museums.

While I sympathize with Sicily and think it should get top dollar for loans, this turn of events again shows the MOU with Italy is a fraud.  It is surely time for it to be scrapped.  Really, what's wrong with Americans being able to import the same types of Italian artifacts collectors in Europe and indeed Italy itself have always been able to enjoy?

Archaeo-Blogger Questions Basis for Seizure

Archaeo-Blogger Rick St. Hilaire has questioned the legal basis of the US Government's seizure of some valuable Korean seals from the family of a deceased Marine who put his life on the line to save the Republic of Korea from the Communists.  Good for him.   There needs to be far more scrutiny of the Government's actions -- not only in the blogosphere, but far more importantly by the Department of Justice and the Courts.  As it is, rule of law seems to be going by the wayside whenever import restrictions and requests for repatriation by foreign countries are concerned. And much worse, of course, all this appears to be just symptomatic of a much larger problem facing our country.

UN conference highlights plight of Jewish refugees, fate of Iraqi Jewish Archive

Despite the hopes of the US State Department and its Cultural Heritage Center, the question of the fate of the Iraqi-Jewish Archive just won't go away.  Meanwhile, over in the archaeological blogosphere, even erstwhile allies beg to differ with the most extreme of repatriationist views.

Running Amok

Overregulation based on politically correct thinking is damaging ancient coin collecting in the United States.  Even worse, cultural bureaucrats within our State Department and Customs Service don't seem much to care that the exact same sorts of coins are freely available for import without restriction into the exact same countries for which MOUs have been granted.

But perhaps this is part of a much larger problem facing our country.  Leaving politics aside, it's easy to see how a mentality that considers a peanut butter and jelly sandwich as racist would think nothing wrong with this state of affairs.   Instead of narrowly targeting any restrictions to help protect archaeological sites,  political correctness dictates that the government must restrict all artifacts made millennia ago on the territory of a modern nation state as a moral imperative to expiate our "guilt" for being a wealthy market country for antiquities and coins.

Don't Let the Iraqi-Jewish Archive Go Back to Iraq!

Jewish groups have sponsored this petition asking the US Government not to send the Iraqi-Jewish archive back to an uncertain future in Iraq.  This is part of a larger effort in Congress to pressure the State Department and the Obama Administration to do the right thing and make sure the archive is turned over to Iraqi-Jewish representatives.  These groups have even developed this platform to help deported Jews make a claim to their own heritage.  A late start but an effort anyone who really cares about preserving the history of the Iraqi-Jewish community should support.

The Perils of a Registration System

It's an article of faith in elements within the archaeological community that registration systems deter looting of archaeological sites.  But do they work in practice?  This story from Israel suggests otherwise.  Instead, they may in fact only overwhelm everyone with red tape and encourage cheating by the unscrupulous. Isn't it much better to get at the problem with a system akin to the UK's Treasure Act and Portable Antiquities Scheme?  Important sites should be protected by law, but it should also be okay to prospect on private property with permission as long as items that are found are properly recorded.

Destroying Artifacts to Save Endangered Species-- Are There Any Parallels for Antiquities Collectors?

The US Fish and Wildlife Service has destroyed its large stockpiles of seized ivory claiming that the move will help save endangered elephants.   Does this move have any relevance for antiquities collectors?

Some in the archaeological community see direct parallels between endangered elephants and "endangered" artifacts, but the differences should be obvious.  Elephants are live beings; artifacts are not. Harvesting ivory kills elephants; removing artifacts from the ground may deprive them of "context," but it may also save them from deterioration and development. And is anyone seriously maintaining seized artifacts should be destroyed?  Let's hope not, though one wonders if repatriating them to underfunded cultural bureaucracies abroad pretty much guarantees they will be lost through neglect or worse as time goes on.

And what of the economics of the government's actions?  Some have suggested selling off ivory stocks would be far more effective in depressing prices and ultimately lessening demand.  Government spokesmen instead claim that such sales would instead stimulate demand and help others disguise poached ivory.

And is this of any relevance to antiquity collecting?  Probably not.  First, "post-1970" antiquities remain legal to own so I'm not sure how sales of seized antiquities would help disguise "poached" ones.  Second, underfunded cultural bureaucracies abroad could really use the money generated from such sales.  Finally, stimulating demand for antiquities may not be such a bad thing, particularly where it leads to further study and appreciation of the ancient cultures that made them.  So, despite any effort to link ivory to antiquities, any parallels in the  end seem quite limited.

The Power of Artifacts

The National Archives has a selection of artifacts from the Iraqi Jewish Archive on view through January 5, 2014.  

After visiting the heart rendering display, CPO can attest that even in their damaged state, these artifacts retain a power to help us imagine a now vanished community.  Indeed, given all the indignities they've suffered, perhaps they are a bit too pristine.  Given their aged but clean condition, it's hard to imagine them as they were found-- waterlogged in the basement of Saddam's secret police headquarters.

And what of their ultimate fate?  What assurances do we have that Iraqi authorities will ensure they are preserved for future generations and made available to scholars and members of the exiled Jewish community?

Digitizing them may preserve what information they contain, but electronic copies are no substitute for the real thing that is of tangible cultural value to the Iraqi-Jewish Community in exile.  And looking at religious texts printed centuries ago in places like Vienna and Venice as well as all the items of a personal nature taken from deported Jews, any thinking person must really question the rights of the modern nation state of Iraq to these artifacts in the first place.

One Can't Assume...

that ancient coins without a provenance dating back to 1970 must ipso facto be a recent find.   While such an erroneous assumption has become an article of faith within the archaeological community, this story about a very important coin that was on display at the British Museum proves otherwise.

Can the Poignant Documents in the Iraqi Jewish Archive Warm Hearts of Stone?

Can the poignant documents in the Iraqi Jewish archive cause a rethink about the justice of the repatriationist position of those in the US State Department and its Cultural Heritage Center, the Iraqi Government and  hardliners within the archaeological community?  It seems not.  Instead, there is only silence, even in those reaches of the archaeological blogosphere which usually cannot pass up a chance to comment on any issue, large or small.

New Take on Cultural Property Issues

John Hooker brings his own philosophical approach to cultural property issues in a new blog, Past Times and Present Tensions.  It's well worth a read.

Cleveland Rocks

Cleveland, Ohio, is best known for that American cultural icon, "the Rock and Roll Hall of Fame."  But the Cleveland Museum of Art should also be considered a museum-world stand-out.  The current exhibits, Sicily: Art and Invention Between Greece and Rome and Praxiteles: the Cleveland Apollo, are both well worth a visit. Numismatists should be particularly thrilled with the unique Aitna Tetradrachm from the Belgian National Collection.  It is truly a magnificent ancient coin with a fascinating history.

But this is a blog on cultural property.  From that perspective, Sicilian cultural officials should be happy that they ultimately allowed the Cleveland Museum exhibit to go forward.  One can easily imagine the number of attendees on the Saturday afternoon CPO visited vastly exceeding the number of visitors its star attraction, the so-called Charioteer of Motya, receives in an entire year in its out-of-the-way Sicilian home.

Then there is the issue of the MOU with the Republic of Italy.  Archaeologists and other proponents may point to the exhibit as a testament to the MOU's success.  But tickets cost $15.  Moreover, the exhibit only went to two museums, the Getty and Cleveland, which have made voluntary repatriations.  One really wonders then if this is truly the case or if the exhibit would have traveled to the US anyway. Certainly, in the future, Sicily will likely demand even more money before it lets its treasures travel abroad.

As for the Cleveland Apollo, some in the archaeological community have questioned its provenance, presumably hoping that it too will be repatriated (but to where)?   However, Cleveland has been forthright with its purchase.  And the statue's current display "in context" alongside other, Roman era copies demonstrates that archaeological context should not be deemed supreme.

Kudos to the Cleveland Museum to Art for all it has done to further the appreciation of ancient Italian and Greek culture through these exhibits.  Cleveland-- and in particular its Museum of Art-- does indeed "rock."

Falling on Deaf Ears?

The New York Times has published this heartfelt plea for the Obama Administration to ensure the Jewish archive rescued by US troops from the flooded basement of Iraqi Secret Police headquarters does not return to Iraq.  The claim is that the Obama Administration is bound by a decision of the Bush Administration, but President Obama has sought to  distance himself from the Bush Administration on Iraq, so why not here as well?  And what of the silence from all those Holocaust art lawyers?  Don't some of the same principles apply here?

Metal Detectorists 10, Archaeologists 0?

That's how some are pitching the latest statistics of treasure reported by the public and archaeologists in England and Wales.  But this sets up a false competition between the two groups when their efforts should instead be viewed as complementary.

Even worse, one voice in the archaeological blogosphere has taken all this to an extreme.  Indeed, he goes so far as to demand that what should be considered good news instead requires the resignation of the responsible Government Minister.

Rather than celebrating the knowledge that has come from these finds, he instead claims these artifacts are better better left in the ground for future archaeologists to discover.  But that is pure fantasy.  Archaeologists will always be few in number.  Their digs will always concentrate on significant sites, not the farmer's fields where most treasure is found.  And while we are waiting, it's much more likely that the artifacts themselves will be lost through deterioration and development.

Luckily, most real archaeologists in the United Kingdom have made peace with metal detectorists.  They recognize that the Treasure Act, the Portable Antiquities Scheme, and the knowledge of and preservation of artifacts they bring benefits everyone.   So let's all celebrate the latest finds in England and Wales and salute the "heritage heroes" of the archaeological and metal detecting communities that have made it all possible.

NAT GEO Under Investigation for Bribery

Reports have surfaced that US Government investigators are looking into whether National Geographic's business relationships with former Egyptian Antiquities Pharaoh Zahi Hawass violated the Foreign Corrupt Practices Act.  CPO first raised questions about this business relationship back in 2011.  In CPO's opinion there needs to be far more scrutiny of such relationships between foreign cultural bureaucrats and US archaeologists and their related organizations.  As it is, there is virtually none at this time.

State Department Rebuffs Schumer

The U.S. State Department and its Cultural Heritage Center have rebuffed Senator Schumer's effort to stop the repatriation of the property of Iraqi Jews to the same country that deported them.  In 2009, the State Department and its Cultural Heritage Center also imposed import restrictions on Chinese cultural goods, despite prior assurances to the Senator to the contrary.

Will Senator Schumer press the State Department on the matter or let it drop as was done with import restrictions on Chinese cultural artifacts?

TESTING THE LIMITS ON RESTRICTIONS ON CULTURAL GOODS; BRAVE, FOOLHARDY OR A BIT OF BOTH?

This is what I said, more or less, to the audience of 100 or so people at the New York City Bar last week.   The sponsors of the event commemorating the 30th Anniversary of the Convention on Cultural Property Act asked me to speak about the ACCG's test case.  So I did.

I’ve had the honor and pleasure of representing a small non-profit advocacy group, the Ancient Coin Collectors Guild, in an effort to test import restrictions which as a practical matter make it impossible to import ancient “coins of Cypriot type” and “coins from China.”  

Although the courts in the 4th Circuit have not been kind to us to date, let me explain why such an effort is not as crazy as it might seem to some.  And while you yourself might not be as interested in ancient coins as I am, they make for an excellent type of artifact to use for a test case, because restrictions on them should raise serious questions of how far the State Department, US Customs and the archaeological community are taking the concept of “cultural property.”

Ancient coins are by far the most common ancient artifact.  There are millions extent if you are talking about ones produced by classical civilizations in the West and billions extent if you include coins made in China and the rest of Asia.  They are hardly rare as a class or “culturally significant,” if you like.  They are not only widely and legally collected in the US, but also in Europe (including Cyprus), China and pretty much anywhere for that matter.  Moreover, it’s hard to link them to a specific modern nation state.  Like the $100 bills of today, ancient coins circulated far and wide well outside the borders of the ancient city states and empires that made them.  And yet, despite this commonality, despite this widespread circulation, and despite this widespread popularity for collectors of many countries—including countries like Cyprus, China, Greece and Italy for which restrictions have been given, our State Department and Customs have seen it fit to restrict Americans from access to what the rest of the world enjoys.  Talk about being “holier than the pope!”  Or the Cultural Property Advisory Committee (CPAC) for that matter—because 2 CPAC members have stated publicly that State and Customs have acted against CPAC’s recommendations on coins.   

Next, let’s discuss the governing statute, the Convention on Cultural Property Implementation Act or CPIA.   You’ve already heard something about how the CPIA is the product of legislative compromise—and so it was.  But how was this compromise worked into the law?  In short, it was done—quite deliberately-- by drastically limiting executive authority.

Indeed, the CPIA contains significant procedural and substantive constraints on the executive authority to impose import restrictions on cultural goods.  Restrictions may only be applied to archaeological artifacts of “cultural significance” “first discovered within” and “subject to the export control” of a specific UNESCO State Party.  They must be part of a “concerted international response” of other market nations, and can only be applied after less onerous “self-help” measures are tried.  Moreover, the CPIA contemplates that CPAC is to provide the executive with useful advice about this process, including what types of cultural goods should be subject to restriction.

The CPIA also limits the government’s authority to promulgate regulations imposing such import restrictions. In particular, once the State Department decision-maker imposes import restrictions, U.S. Customs and Border Protection (“CBP”) must then designate the material restricted by type or classification, making certain that the list of restricted material is sufficiently specific and precise to ensure that the restrictions are only applied to the material covered by any agreement to impose import restrictions and that “fair notice” is given to importers.  

 Why is this important for purposes of testing the regulations?  Well, these limitations on executive discretion embedded in the statute give litigants an opening to argue that the decision making should be subject to judicial review.  How should this work?  And why didn’t courts in the 4^th Circuit buy that argument?

Well, first the Administrative Procedure Act (APA) provides for judicial review of final agency actions.  There is certainly a good argument that the “final agency action” here was US Customs’ promulgation of import restrictions, but the district court instead sided with the Government and its claim that the “final agency action” was the decision of the President’s designee approving a MOU with Cyprus and China.    This allowed the Government to escape judicial review under the APA based on an old case, Franklin v. Massachusetts,  that held that held that the actions of the president are not subject to judicial review because he is not an “agency” for purposes of the APA.   

Frankly, I think that the district court got it wrong.   Supreme Court case law says the final agency action is only the one where any liability attaches—and here any liability only flows from the regulations themselves, not the initial decision from State.  Moreover, there is a presumption of judicial review embedded in the APA—so why did that presumption not control here?     And let’s not forget, the decision maker was not the president himself, instead it was an assistant secretary in the State Department, who acted as his designee.   It’s not at  all clear in those circumstances whether Franklin should really apply.

Second, there is the rarely used but judicially recognized “non-statutory” or “ultra vires” review of whether the executive exceeded its statutory authority that applies where the APA does not.  Interestingly, while the district court agreed with the Guild that the CPIA’s limitations on executive discretion made judicial ultra  vires review appropriate, the district court then only undertook what purported to be ultra vires review of compliance with the CPIA with respect to two discrete issues, to the exclusion of all others, most notably the “concerted international response” requirement, before dismissing the case without allowing for any discovery.  Presumably, a more sympathetic judge might undertake such a review of whether the executive complied with all the limitations on their authority.

Finally, there is the question of whether the courts should stay out of these issues altogether because import restrictions on cultural goods are “foreign policy matters.”   The district court never reached this issue, mentioning it only in a footnote, but the Court of Appeals based its decision affirming the district court on this basis.  The court of appeals completely ignored the Supreme Court’s “political question” test in doing so even though the Supreme Court has also held that it applies to such “foreign policy” claims.

That test calls for “a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in light of its nature and posture in a specific case, and the possible consequences of judicial action.” Baker v. Carr, 369 U.S. at 211-12.  One wonders if a court that honestly applied this test could really conclude that import restrictions on coins constituted such a “foreign policy matter.”   I submit not.   But we will not know unless, of course, another test case is filed in another circuit, perhaps one less known for its pro-government leanings.  

Okay, you might with ask with perfect 20-20 hindsight why then did the Guild file in the 4^th Circuit?  Well, the Guild is a small non-profit and it was done because filing elsewhere would have added unnecessary expense since my law firm is based in Washington, D.C.  As a D.C. firm, we certainly would have liked to file in D.C. Circuit, which is well known for its expertise in administrative law.  However, to get standing we needed to actually import some coins on the designated lists—and the most convenient ports for an import from Europe were in Baltimore and Dulles Airport in Virginia, both in the 4^th Circuit.  It was only after the coins were imported and seized by U.S. Customs in Baltimore that the case could go forward.

And what of those coins?  Well, the government finally filed a forfeiture action against the coins the Guild imported.  So we will soon see what, if any, of the same issues will be litigated in the context of that action.    If you invite me back again in a few years, perhaps I will have more to say on that.    For now though, let me thank you for inviting me to discuss this issue that is so important to the small businesses of the numismatic trade and collectors tonight.

Chinese Art Market Rife with Fakes

Chinese citizens are rightly proud of their ancient culture.  And even my friends in the archaeological world will no doubt agree that collecting antiquities is better than smashing them, as was done during the dark days of Mao's Cultural Revolution.  Yet, the rush of Chinese collectors has led to a host of problems, most notable the production of fakes.  I hope Chinese authorities are able to sort this out in such a way that does not dampen the enthusiasm of Chinese citizens for their own history.  Collecting and enjoying artifacts is far better than smashing them or warehousing them in my opinion.

Symposium on the 30th Anniversary of the Cultural Property Implementation Act

On October 22, 2013, the New York City Bar conducted a symposium about the Cultural Property Implementation Act (CPIA) to mark its 30^th Anniversary.   The event was co-sponsored by the American Society of International Law (ASIL).  The panel was introduced by Michael McCullough (MM) (Michael McCullough LLC) and Josh Lipsman, the Chair of the Bar’s Cultural Property Subcommittee.  Irina Tarsis of ASIL also helped coordinate the event.

The Speakers were Arthur Houghton (AH), a former State Department official, Getty Curator and two-term Cultural Property Advisory Committee (CPAC) member, Larry Mushinske (LM), a former US Customs National Import Specialist for Art and Antiquities, Peter Tompa (PT), of counsel at Bailey & Ehrenberg PLLC, Jonathan Illari (JI), Associate General Counsel at Bonham’s Auction House, and Leila Amineddohleh (LA), the Executive Director of the Lawyers’  Committee for Cultural Heritage Preservation.

MM- The CPIA is compromise legislation that incorporated the 1970 UNESCO Convention into US law subject to reservations to ensure that the US maintained its “independent judgment” over the nature and scope of import restrictions on cultural goods.

Panel I-AH and LM.

AH- Times have changed since AH was on CPAC in its early years.  In those early days, restrictions were very narrow.   The first request was for restrictions on particular types of artifacts from one site in El Salvador.  The early committee had representatives of the trade on it, but they knew nothing of antiquities.  Conflict of interest rules were used to keep knowledgeable dealers off the committee.  Meanwhile, there was no question raised about conflict of interest for archaeologists based on their need to secure excavation permits from source countries.  Today, there is no balance on the Committee whatsoever.  Archaeologists are embedded as representatives of the public.   Public accountability and transparency are absent.   AH does not believe import restrictions have any discernible impact on looting.  Rather, they only move the trade overseas.   European markets are also closing down for similar reasons.   Fresh material is now going to the Middle East and Asia.

LM-LM was US Customs’ National Import Specialist for Art and Antiquities.  During his tenure, there was an effort to reach out to the trade concerning issues of concern.  He did a road show of the Ports to do training for local Customs officers.   Neil Levy is now in his former position.   It is a big job given the limited resources that are assigned to it.   LM thinks importers should use Custom’s procedure asking for determinations about entry of cultural goods.   The goal is to have a maximum 30 day turn around on vetting a piece for entry.  LM also noted that there is confusion about country of origin compared to find spot as well as the findings necessary to renew a MOU. 

MM asked AH what he would do if he were Secretary of State.  AH indicate he would fire the Cultural Heritage Center’s Director who he believes has been acting outside the law.    MM asked LM what he would do if he were Customs Commissioner.  LM believes that there needs to be more coherent rules concerning stolen and illegally imported property.  He thinks it’s odd that Customs is applying Egyptian cultural patrimony laws dating back to 1983 when Egypt has not even asked for a MOU.  

Panel II- LA, JI, and PT.

LA- MOUs have helped stem looting, show respect for other cultures and provide a bridge for contacts between academics and museums.   Import restrictions have a broader reach than criminal prosecutions under the National Stolen Property Act and do not require a showing of scienter or guilty knowledge.   Italy and Cambodia are two success stories.   The market needs to be more transparent.

JI discussed how Bonham’s vets articles for auction.  The analysis always considers both the National Stolen Property Act and import restrictions.   Auctions are the most transparent way of selling cultural property.   JI is concerned that our tough rules are driving material to private sales.  He also suggests US firms are losing consignments to foreign ones.   Most Chinese material is no longer sold here.   He is very concerned about subpoenas for information received pursuant to Mutual Legal Assistance Treaties.   They can request information about sales that took place years ago.

PT discussed the ACCG test case.  Coins make for a good test article because they are extremely common, collected world-wide and are difficult to associate with any one single modern nation state.   He explained that the significant procedural and substantive constraints on executive discretion within the CPIA provide a basis to argue that State Department decision-making should be subject to judicial review.  He also noted that the Court of Appeals' conclusion that import restrictions on coins were a “foreign policy matter” is at odds with Supreme Court case law.

After the presentations, there was a question and answer period.  There was much back and forth over whether import restrictions have really helped staunch looting.  There was also discussion about whether import restrictions should be placed on coins, and, if so, whether documentation requirements should be lessened  for coins compared to more significant artifacts.  Finally, there was some back and forth about the definition of ethnological objects under the CPIA. 

Schumer Seeks to Block Return of Jewish Artifacts

Senator Chuck Schumer, who was highly critical of the State Department's handling of import restrictions on cultural goods from China, has now sought to block the State Department's proposed repatriation of Jewish artifacts to Iraq. The New York Daily News quotes Senator Schumer as follows:

"These sacred artifacts were taken from the Iraqi Jewish community and thus do not belong to the Iraqi government,” the senior New York senator told the Daily News. “They belong to the thousands of Iraqi Jews, an ancient and once-vibrant community, who were exiled many years ago," Schumer said.


Will the State Department defy Senator Schumer yet again in pursuit of its Cultural Heritage Center's repatriationist agenda?

US State Department Presses Foreign Governments on Repatriation at the Expense of the US Taxpayer

Dustin Roasa has written a comprehensive report about the ongoing forfeiture dispute between the US Government and Sotheby's over the fate of a Khmer statue.   Whatever the moral case for a return, the story should raise troubling questions about how elements within the US State Department, acting in concert with archaeologists with an axe to grind against private collecting, actively press foreign governments to seek repatriations from American interests.  And all at the expense of the US taxpayer.

Is the Honduran MOU an Instrument of State Repression of Indigenous Rights?

Two comments on regulations.gov about the Honduran MOU stand out because they hint at national-local divide within Honduras itself as to who should control Honduran "cultural property" produced by its indigenous groups. That of "Black Man Soul" hints at the repression the Garifuna people have felt at the hands of national authorities since before there was a Honduras.  Meanwhile, Dorie Reents-Budet's statement discusses tensions between the national government and local indigenous groups concerning loans of artifacts.  

All this raises an issue that deserves serious consideration.  Should the MOU with Honduras be renewed when it recognizes the primacy of the Honduran state (which is no friend to indigenous interests) over  indigenous artifacts?  

Why shouldn't the indigenous peoples of Honduras be able to do what they want with their own artifacts—even if that means selling them or loaning them with a fee to make ends meet? 

My Comments to CPAC re Honduran MOU Renewal

Here are my self-explanatory comments to CPAC regarding the proposed renewal of a MOU with Honduras.  They relate to the need for greater transparency and concerns about the "culture creep" that has resulted from overbroad readings of statutory authority:

October 7, 2013 

VIA Regulations.gov Portal

Prof. Patty Gerstenblith, Chair

Cultural Property Advisory Committee

Cultural Heritage Center (ECA/P/C)

U.S. Department of State
2200 C Street, NW Washington, DC  20037

Re:      Meeting of the Cultural Property Advisory Committee (CPAC) Regarding Proposed Renewal of the Memorandum of Understanding (MOU) with Honduras

Dear Prof. Gerstenblith:   

            Thank you for this opportunity to comment on the proposed renewal of the Memorandum of Understanding (MOU) with Honduras. Although I collect no Honduran material and have no specialized knowledge or interest in cultural goods from the area, I am concerned about the “culture creep” that has marked recent decisions to impose import restrictions on ever more categories of artifacts, with little, if any, attention to their cultural significance.  It is for that reason that I am commenting on this proposed extension as a citizen concerned about how the State Department exercises its statutory authority under the Convention on Cultural Property Implementation Act (“CPIA”).

            Here, I understand that the State Department is considering expanding the current MOU that covers Pre-Columbian archaeological objects to now include Colonial and Republican era cultural goods under the theory that they are “ethnological objects.”  In that regard, as a preliminary matter, it would be helpful to both CPAC and the public if the State Department would provide more detail. Without more information about the types of material being considered for restriction and any justification for doing so, it is difficult for the public to comment intelligently on the subject, which, of course, should be the point of this exercise.

            In any event, my fundamental concern is the prospect of an expansion of import restrictions based upon an overbroad construction of the term “ethnological object.”  In that regard, please note that the term has already been defined by Congress.   According to CPIA, 19 U.S.C. § 2601 (2) (C) (ii),

no object may be considered to be an object of ethnological interest unless such object is -- (I) the product of a tribal or nonindustrial society, and (II) important to the cultural heritage of a people because of its distinctive characteristics, comparative rarity, or its contribution to the knowledge of the origins, development, or history of that people.

            Furthermore, according to the CPIA’s legislative history, “the [Senate] committee intends this definition, to encompass only what is sometimes termed “primitive” or “tribal” art, such as masks, idols, or totem poles, produced by tribal societies in Africa and South America.  Such artifacts must be important to cultural heritage by possessing characteristics which distinguish them from other objects in the same category providing particular insights into the origins and history of a people.  The committee does not intend the definition of ethnological materials under this title to apply to trinkets or other objects that are common or repetitive or essentially alike in material design, color, or other outstanding characteristics with other objects of the same type, or which have relatively little value for understanding the origins or or history of a particular people or society.”   U.S. Senate Report on the CPIA (Sept. 8, 1982) at 5.

            Given this limitation on the State Department’s authority, I would respectfully urge that CPAC scrutinize any proposed designated list of ethnological objects from the Colonial and Republican period of Honduran history to ensure that it meets Congress’s stringent definition.  Thank you for your consideration of this matter.

Sincerely,

Peter K. Tompa

Asset Freeze Case Too Close to Call

The SCOTUS Blog assesses the asset freeze case before the Supreme Court as too close to call.  It would seem the obvious downside to a criminal defendant should require more than a grand jury's finding of probable cause before an asset freeze effectively denies them assistance of their desired counsel.  But, of course, that's not how the government and apparently some of the justices see it.  And it does not seem "the elephant in the room"-- the potential abuse of this procedure to force plea deals-- was mentioned at all.

Supreme Court to Hear Arguments on Asset Freezes Today

The SCOTUS blog has further coverage on a challenge to the controversial tactics the government has used in forfeiture cases, including those relating to "cultural property."   As the blog notes, this is a very consequential case that deserves close consideration by the Court.

Looting Case Overstated?

The World Monuments Fund has listed its top five threats to cultural heritage.  But "looting" does not rate any mention except when it is associated with war.  Is it possible then that members of the archaeological community have overstated their case just to further their anti-collecting agenda?

Market Dominance

AFP reports that connected Chinese auction houses have achieved market dominance over their foreign rivals in selling Chinese antiquities:

"Western giants Christie's and Sotheby's are increasingly focused on China but barred from selling the hottest item -- antiques -- by laws aimed at protecting cultural heritage.

Meanwhile Chinese rivals Poly and Guardian have seen tremendous growth thanks to their greater freedom to act within the country, and their political ties." 

The net effect of self-imposed US restrictions is simply to turn the market over to Mainland Chinese auctioneers and dealers.  And again it must be asked: How can restrictions on the entry of ancient Chinese art into the relatively small US market have any impact on any looting within China itself when the much larger and rapidly expanding Chinese art market is allowed to sell the same ancient Chinese art without restrictions in Hong Kong?

Supreme Court to Take on Controversial Practice

The Supreme Court will be reviewing a controversial practice that has made it difficult to mount a defense to criminal forfeiture actions relating to cultural goods and fossils.  This practice certainly made it exceedingly difficult for Eric Prokopi to defend his claim to the Bataar skeleton he spent a year creating out of a pile of old fossilized bones.

Here is an article about the Supreme Court case from Sunday's online Wall Street Journal.

 How Prosecutors Rig Trials by Freezing Assets; Is it fair to seize all a defendant owns without showing its criminal source? The Supreme Court will rule.

By Harvey Silvergate,  Wall Street Journal (Online) [New York, N.Y] 06 Oct 2013

On Oct. 16, the Supreme Court will hear oral arguments on a claim brought by husband and wife Brian and Kerri Kaley. The Kaleys are asking the high court to answer a serious and hotly contested question in the federal criminal justice system: Does the Constitution allow federal prosecutors to seize or freeze a defendant's assets before the prosecution has shown at a pretrial hearing that those assets were illegally obtained?

Such asset freezes often prevent a defendant from hiring the trial counsel of his choice to mount a vigorous defense, thus increasing the likelihood of the government extracting a guilty plea or verdict. Because asset forfeiture almost automatically follows conviction, a pretrial freeze ultimately enables the Justice Department to grab the frozen assets for use by executive-branch law enforcement agencies. It is a neat, vicious circle.

What crimes are the Kaleys charged with? Kerri Kaley was a sales representative for a subsidiary of Johnson & Johnson. Beginning in 2005, the feds in Florida investigated her, her husband Brian, and other sales reps for reselling medical devices given to them by hospitals. The hospitals had previously bought and stocked the devices but no longer needed or wanted the overstock since the company was offering new products. Knowing that the J&J subsidiary had already been paid for the now-obsolete products and was focused instead on selling new models, the sales reps resold the old devices and kept the proceeds.

The feds had various theories for why this "gray market" activity was a crime, even though prosecutors could not agree on who owned the overstocked devices and, by extension, who were the supposed victims of the Kaleys' alleged thefts. The J&J subsidiary never claimed to be a victim.

The Kaleys were confident that they would prevail at trial if they could retain their preferred lawyers. A third defendant did go to trial with her counsel of choice and was acquitted. But the Justice Department made it impossible for the Kaleys to pay their chosen lawyers for trial.

The government insisted that as long as the Kaleys' assets--including bank accounts and their home--could be traced to the sale of the medical devices, all of those assets could be frozen. The Kaleys were not allowed to go a step further and show that their activities were in no way criminal, since this would be determined by a trial. But the Kaleys insisted that if the government wanted to freeze their funds, the court had to hold a pretrial hearing on the question of the legality of how the funds were earned.

The Kaleys complained that the asset freeze effectively deprived them of their Sixth Amendment right to the counsel of their choice--the couple couldn't afford to hire the defense that they wanted. Prosecutors and the trial judge responded that the Kaleys could proceed with a public defender. This wouldn't have been an encouraging prospect for them, for while public counsel is often quite skilled, such legal aid wouldn't meet the requirements the Kaleys believed they needed for this complex defense. Choice of counsel in a free society, one would think, lies with the defendant, not with the prosecutor or the judge. (The Kaleys' chosen trial lawyers have agreed to stick with the case during the pretrial tussling over the asset-freeze question, but trying the case before a jury would be much more expensive and would require the frozen funds.)

Federal asset-forfeiture statutes like the one the Kaleys are fighting are actually a relatively recent invention. Before 1970, when Congress adopted the first provisions seeking to strip organized-crime figures of ill-gotten racketeering gains, there were no such laws (with the exception of the Civil War-era Confiscation Acts providing for the forfeiture of property of Confederate soldiers).

Since 1970, however, such federal statutes have expanded to cover a breathtaking number of crimes, from the sale of fraudulent passports and contraband cigarettes right up to murder and drug trafficking. An authoritative treatise, the 4th edition of the encyclopedia "Federal Practice & Procedure," asserts that federal forfeiture is now available "for almost every crime." In January, the New York Times quoted Manhattan U.S. Attorney Preet Bharara as saying that asset forfeiture is "an important part of the culture" and "an example of the government being efficient and bringing home the bacon." In 2012 alone, federal prosecutors seized more than $4 billion in assets. The Justice Department is allowed by law to put that bacon to use however prosecutors wish--to pay informants, provide snazzy cars to cooperating witnesses, whatever.

The Kaleys are hardly alone. The recently completed prosecution of Conrad Black indicates starkly how such seizures can torpedo a defendant's chance of getting a fair trial. In his 2007 high-profile case, Mr. Black, a former newspaper publisher indicted for alleged fraud and related crimes in the sale of Hollinger International, endured a federal freeze of his major unencumbered asset, the cash proceeds from the sale of his New York City apartment. That freeze prevented him from being able to retain the legal counsel upon whom he had relied before the asset freeze.

Mr. Black ultimately was convicted on two counts, winning on all the others in a shifting array of counts that numbered more than a dozen. Last year, having served his 42-month prison sentence, he filed a petition in federal court seeking to vacate his convictions on the ground that the government's asset-forfeiture tactics had deprived him of his counsel of choice. That effort foundered when the judge concluded that Mr. Black's trial counsel--not his counsel of choice, it must be noted, but rather the counsel he could afford after the asset freeze--had failed to properly raise and hence preserve the issue for later appellate review.

The Supreme Court has now threatened to upset the game that is so lucrative for the government and disabling for defendants. On March 18, the court agreed to consider the Kaleys' claim that the asset freeze without a hearing on the merits of the underlying criminal charge violated their constitutional rights. At oral argument in mid-October, the broader question will be whether, after four decades of federal asset seizures, the high court will put a freeze on the Justice Department.

Mr. Silverglate, a Boston criminal defense and civil liberties lawyer, is the author, most recently, of "Three Felonies a Day: How the Feds Target the Innocent" (Encounter Books, updated second edition 2011).

What's his "Provenance?"

Archaeo-blogger Paul Barford is quite the critic.  His dislikes include metal detectorists, "coineys," "dealers," the Portable Antiquities Scheme, British archaeologists who cooperate with PAS, other archaeologists who cooperate with collectors, US museums, the US Government (excepting Customs and the State Department's Cultural Heritage Center) and pretty much anyone who disagrees with his archaeological centric views.

Mr.  Barford, like some of his fellow archaeo-bloggers, is also obsessed with the provenance of objects in private and museum collections.  But what do we know about Mr.  Barford's own background or "provenance" if you like?   CPO has touched on this issue before, but Arthur Houghton, who was wondering about this issue, suggested that CPO ask the following questions for Mr. Barford to answer.  He's welcome to answer these on his own blog or on this one, or  to the extent he chooses not to do so, others are welcome to provide any accurate information they may have.

1.  Exactly what academic and professional credentials does Mr. Barford have to back up his claim to be an archaeologist?  What scholarly works has he authored about archaeology?  What digs has he participated in and has any fieldwork he has performed been published?

2.  Mr. Barford has evidently lived in Poland since 1986.  At that time,  Communist Poland was an international pariah for its military crack-down on the Solidarity movement.  Why did Mr. Barford move from the Democratic West to Communist Poland?  Did he work for the Communist Government as has been reported?  If so, in what position and did he make any oath to that Government?  What has he been doing since the fall of Communism in 1989?

3.  Mr. Barford is reported to work as a contractor for UNESCO.  Does Mr. Barford derive any income from organizations or groups that seek to prohibit or limit the access of dealers, collectors and  museums to cultural goods?  If so, what organizations or groups and how much do they give him?  In short, does Mr. Barford have an undisclosed financial interest behind his commentary?

Bipartisanship

Anti-American archaeo-blogger David Gill is branching out, criticizing a senior Republican Congressman for his efforts to tie the federal budget to changes in the President's signature healthcare law.  Congressman Culberson is indeed passionate about this issue as are many Americans who are on one side or the other.  Coin collectors can agree or disagree with the Congressman on this issue, but they should be grateful that he also cares about State Department transparency and accountability.  But so do Democratic legislators like the Senators Schumer and Gillibrand.   And, of course, let's not forget Democratic Senator Moynihan, who ensured the Convention on Cultural Property Implementation Act contained significant substantive and procedural constraints on Executive authority.  I've noted all this in a comment to Gill's blog, but for some reason he has not yet seen fit to publish it.  Perhaps, he does not want to acknowledge that despite the partisanship in Washington, concern about how the State Department and Customs impose import restrictions on cultural goods is something both liberal Democrats and conservative Republicans can agree upon.

Not to Worry

Despite the dysfunction in our political system that has led to the closure of our national museums and parks, it's business as usual in at least some government agencies. The State Department and its Cultural Heritage Center continue to operate without furloughs, at least for now.  US Customs--which has an essential law enforcement function-- also remains on alert to interdict illicit cultural property real or imagined.  And today's Federal Register was again full of new regulations, though no new import restrictions on cultural goods were announced today.

Symposium on the 30th Anniversary of the Cultural Property Implementation Act

The New York City Bar and the American Society of International Law are sponsoring a symposium on the 30th Anniversary of the CPIA on Tuesday, October 22, 2013, 6:30 PM- 9:00 PM.  To register, click here.

City Bar Member Price : Free
ASIL Member Price : Free
Non Member Price : $15.00

Where: New York City Bar

42 West 44th Street
New York, NY 10036

Passed by Congress in 1983, the Convention on Cultural Property Implementation Act (Public Law No. 97-446, 96 Stat. 2350, 19 U.S.C. §2601 et seq.)(the “CPIA”) was the result of ten years of lobbying and legislative drafting and compromise by U.S. government agencies, dealers, museums, collectors, academics and source countries. This panel will explore the history of the CPIA, its implementation over the past thirty years and new ideas about improving the CPIA in the future. A Q&A to follow.

Introduction: JOSH LIPSMAN, Chair, Cultural Property Subcommittee

Moderator: MICHAEL McCULLOUGH, Chair, International Trade Subcommittee and Managing Partner, Michael McCullough LLC

Speakers: ARTHUR A. HOUGHTON, Former State Department Official and two-term member of the Cultural Property Advisory Committee; LAWRENCE MUSHINSKE, Former U.S. Customs and Border Protection Office and National Import Specialist for Art and Antiques; PETER K. TOMPA, Attorney, Bailey & Ehrenberg; JONATHAN ILLARI, Associate General Counsel, Bonhams; LEILA AMINEDDOLEH, Executive Director, Lawyers’ Committee for Cultural Heritage Preservation and Adjunct Professor, St. John’s University School of Law

Sponsored by: Committee on Art Law, Dean Nicyper, Chair

Co-sponsored by: Cultural Heritage and the Arts Interest Group, American Society of International Law (ASIL), Irina Tarsis, Chair

"Accusations" or Facts?

Archaeo-blogger Rick St. Hilaire claims that the amended answer filed by the ACCG in the ongoing forfeiture case is nothing but a bunch of "accusations."  But those "accusations" are based on statements from two former CPAC members who reviewed the Chinese and Cypriot MOUs, the Congressional testimony of State's former Deputy Legal Adviser, and even an admission by the Cypriot Government itself.  If St. Hilaire really believes the ACCG's "accusations" are as insubstantial as he claims, why not post a link to the ACCG's papers and let the reader decide for themselves?

Antiquities Openly Available for Sale in Afghanistan-- But You Can't Purchase Them!

That's the message from an archaeologist embedded in the Australian army, a message consistent with that preached by the Archaeological Institute of America, which has also been embedded with our troops.  But antiquity trading has a long tradition in Afghanistan, and the poor farmers that find things while digging in their fields could certainly use the money.  And while I'm not for looting archaeological sites, the usual claim-- that looting deprives archaeologists of the opportunity to find material "in context"-- would not seem to be a realistic concern here.  Or, perhaps I'm unaware of all the archaeologists lining up to excavate in Afghanistan these days.  Indeed, what's more likely is that the Taliban will take power again-- and we all know how they feel about antiquities-- they love to smash them!  Under the circumstances, what's really wrong with Australian or American soldiers for that matter bringing home a small piece of Afghan history with them? Though of course the troops should follow all directions they receive from their superiors, perhaps such rules should be reconsidered.  If anything, such objects might help encourage some much needed cultural understanding.

ACCG Files Amended Answer

The ACCG has filed an Amended Answer and Pro Forma Response to the government's motion to strike defenses set forth in its initial answer to the government's forfeiture complaint.  The exhibits to the amended answer are available on the Court's PACER database.   The amended answer reiterates that the focus of this case is whether the government can meet its burden to show the coins at issue were "first discovered in" and "subject to the export control" of China or Cyprus.  Based on information secured from former CPAC members and FOIA, it would seem not.

ICOM Publishes Red List

ICOM has published a " Red List of Syrian Cultural Objects at Risk" with the support of the State Department's Cultural Heritage Center. While the concept is not itself objectionable, what is objectionable is the message that the objects on the list are presumed "guilty" until proven "innocent:" 

"Museums, auction houses, art dealers and collectors are encouraged not to acquire such objects without having carefully and thoroughly researched their origin and all the relevant legal documentation."

While this may make sense for objects where there is already a reasonable suspicion that they may have been illicitly removed from Syria, it makes little sense for items like Roman coins, which are legally sold and collected most everywhere.

Meanwhile, in the ever more surreal archaeological blogosphere, anti-American Paul Barford demands to know why the Obama Administration has not already entered into a MOU with Syria to protect Syrian cultural patrimony.  To be fair, perhaps Mr. Barford is just trying to be ironic.

In any event, presumably US Customs already feels it has ample authority to interdict illicit Syrian cultural property based on the bewildering array of economic sanctions already in place.

Upcoming CPAC Meeting to Discuss Renewal and Possible Extension of Honduran Restrictions

The Cultural Heritage Center has provided advance notice of a CPAC meeting to discuss a potential renewal of current restrictions on Honduran Pre-Columbian objects as well as the possible expansion of restrictions to cover artifacts from the Colonial and Republican period as well.  While the advance notice is welcome, CPAC and the public could benefit from far greater transparency as to what artifacts may be subject to future restriction.  Guessing games do no one any good because they hamper intelligent public comment.

Peruvian Officials Look the Other Way

The Peruvian cultural bureaucracy has made a big show of going after smugglers using the mails, demanding the repatriation artifacts long held by "Yanqui" institutions like Yale, and even seeking its cut of Spanish treasure.  On the other hand, the same Peruvian cultural bureaucracy seems unwilling or unable to stop the bulldozing of major archaeological sites within the country in the name of development.  Should Peru be branded a "malefactor source country" and be denied further U.S. taxpayer assistance to finance the U.S. State Department's repatriation efforts?  CPO believes so.