Court Denies Sotheby's Motion to Dismiss

This is a banner week for the State Department’s Cultural Heritage Center and its "Cultural Antiquities Task Force."  First the denial of the ACCG’s petition for cert.  Now this decision allowing the government to amend its complaint and denying Sotheby's motion to dismiss the government's claim that a Khmer statue up for auction must be considered "stolen" given Cambodian law.

The real concern is that this gives yet more license to the Cultural Heritage Center and its “Cultural Antiquities Task Force” to repatriate artifacts based on unclear and obscure laws of ancient vintage, even where they have only recently been “dug up” so to speak as long as there is some alleged tie-in to a known site.

The subsidiary concern is that the Sotheby’s Court, like the T-Rex Bataar Court, is treating the obligation of a foreign country to actually enforce its laws at home not as an element of the claim up front, but to be raised as a defense to forfeiture after a long slog to trial—something most forfeiture claimants simply can’t afford.

Here is the ruling courtesy of the Chasing Aphrodite blog. 

Will Sotheby's cave or fight on?  Stay tuned.

Proposed Renewal of Chinese MOU

The Cultural Heritage Center website carries news about a proposed renewal of import restrictions on Chinese cultural goods.  CPAC's public session will take place on May 14th.

The Federal Register notice formally announcing the renewal is to be released on April 1st.

Somehow that is fitting. I'm all for the Chinese populace collecting rather than destroying (remember the Cultural Revolution) artifacts like the bazillions of cash coins that are found all the time in China, but hope CPAC recognizes that current restrictions have done little but to provide Chinese auction houses and dealers with a leg up on their foreign (especially US) competition.

Is it about protecting the archaeological record or encouraging the continued movement of the trade in Chinese artifacts to China and other major market countries?

Archaeological Context: Is it About Preservation or Control?

Archaeo-Blogger Rick St. Hilaire somehow believes that I have discounted the importance of archaeological context, but all I have said is that coin collectors derive their own context from the iconography and fabric of the coins themselves and that the goal of preservation of archaeological context—however worthy-- should not be allowed to control all else.  Perhaps, then, he should not take such statements about context out of context!

St. Hilaire then seems to discount the value of numismatic context, though his fellow archaeo-blogger Nathan Elkins organized an entire conference on the subject.  Perhaps, coins do indeed tell us something without reference to where they are found.

Finally, though suggesting that a good lawyer looks at all the evidence, St. Hilaire somehow apparently missed the ANS article appended to the Chasing Aphrodite interview.  In it I explained that perhaps archaeological practice may be different than archaeological rhetoric when it comes to issues of context.  I state:

Frankly, I might feel a bit better about all this if I had evidence that the archaeological community as a whole makes every effort to not only record the coins they find but to publish them.   Both are critical to the preservation of numismatic knowledge.  Even if a coin is recorded in an excavation notebook, it does little good if it is never published, and, if the notebook or computer data file is not backed up in some way, the information about its provenance could easily be lost.  That, of course, would render the coin for all practical purposes, “an orphan” of the sort members of the archaeological community roundly condemn—at least when held in a collector’s trays.  

This is not a hypothetical concern.    Indeed, a recent study prepared at the behest of the numismatic trade for the use of the State Department’s Cultural Property Advisory Committee concluded,

• The publication record for coins found in Italian excavations is poor.
• What has been published is thanks to a few dedicated individuals, not to the encouragement of the archaeological community.
• Without publication it is almost impossible to know what has been found and what has become of the material.

Let me give just one concrete example.  Some 60,000 - 70,000 ancient coins from excavations at the City of Rome, which were recovered by archaeologists during the 19^th century, still await publication in Frankfurt.  One would have thought coins excavated in Roman contexts would be of utmost importance, but the fact that they are still awaiting publication after over a century speaks volumes.  

All this raises a larger question.  Is all the talk about protecting archaeological context for real or is it actually about justifying further controls?

Supreme Court Denies Cert.

Disappointingly, but perhaps not surprisingly given the some 150 petitions before the Court at its last conference, the Supreme Court has denied the ACCG's petition for certiorari.  (The Court granted certiorari in four cases, two of which were summarily sent back to the Second Circuit for consideration of a decision just issued this year.)

The Supreme Court's order has no precedential value, leaving the Fourth Circuit’s decision that the State Department's and U.S. Customs' decision-making is generally only subject to "political" rather than "judicial" review only applicable in that Circuit.  

ACCG now plans to contest the forfeiture action the Fourth Circuit anticipates the Government will file against the coins the ACCG imported for purposes of its test case. 

The test case is part of the ACCG's continuing effort to educate the public and government decision-makers about the damage overbroad restrictions have done to the ability of American collectors to legally import coins of the sort that remain widely available abroad, including in places like Bulgaria, Cyprus, Greece, Italy and China.  

In that regard,  the latest post on the Chasing Aphrodite blog provides further discussion about the thinking behind the test case. 

No Joy in Cyprus

Whatever happens at the Supreme Court's conference on the ACCG test case this Friday, there will be no joy in Cyprus.   Cypriot bank depositors are paying for the bad lending practices of its big banks, including the Bank of Cyprus.  But serious questions have been raised about fairness.  The little guy and the foreigner (mostly rich Russians)  have been singled out while connected bondholders, sovereign debt holders and depositors in Greek operations in Cypriot banks have apparently gotten off the hook.  Doesn't such cronyism and shady dealings "all for a good cause" sound all too familiar?

Anti-Trade?

I'm a bit amused by "cultural heritage lawyer" Rick St. Hilaire's take on exports of cultural goods particularly as spun by fellow archaeo-blogger Paul Barford.   Most decision-makers think international trade which goes through proper channels (as must be the case here as it was captured by government statisticians) is a good thing.  But that does not seem to be the assumption of the archaeological blogosphere.

Ideology, Governance and Consequences from a Collector's Point of View

The Council of British Archaeology has published Wayne Sayles' and Dave Welsh's 2010 paper on the Internet.  While critical of some archaeologists, Sayles and Welsh ultimately believe that cooperation between the groups is what is needed.

ACCG Petition for Cert. to be Considered Next Week

The Supreme Court will consider the Ancient Coin Collectors Guild's petition for certiorari at its March 22, 2013 conference.  One should not read anything into the Government waiver of its right to respond to the Petition.  CPO understands that this is standard operating procedure for the very busy Solicitor General's office.

New Work on Etruscan Coinage

I'm looking forward to coin dealer and scholar Italo Vecchi's new work about the enigmatic coinage of the Etruscan city states. I understand that Lord Renfrew collects this series.  One wonders if all Lord Renfrew's coins have a demonstrable provenance back to at least 1970.

Rewriting the Convention on Cultural Property Implementation Act

It's no surprise that Dr. Nathan Elkins-- one of the AIA's chief proponents of import restrictions on common historical coins of the sort collected worldwide-- claims that any coin type that circulated "predominantly" in a given country should be placed on the "designated list" for restrictions when it's easy for him to generalize that coins circulate "predominantly" where they are made.

But the governing statute, the Convention on Cultural Property Implementation Act, calls for much more.  Assuming other statutory criteria are also met, it only authorizes seizure and forfeiture of artifacts "first discovered within and...subject to export control by" a given country. 19 U.S.C. Section 2601(2)(c).

The ACCG has indicated that the Government could comply with the plain meaning of the CPIA in either one or two ways:  (1) establishing by undisputed scholarly evidence that the coins placed on the designated lists could only have been discovered in a given country for which import restrictions are granted and, hence, must be subject to their export controls; or (2) demonstrating by documentary evidence that any coins Customs seizes were in fact discovered in that country and, hence must be subject to that country's export controls.

The ACCG and others have offered scholarly evidence to suggest that ancient coins as a general rule circulated far from where they were minted.  The fact that some (local bronze coins) typically circulated closer to home than others (precious metal coins and Imperial bronze issues) does not excuse the State Department's and U.S. Customs' efforts to ban coin imports based on place of production rather than on find spot.

The overbroad import bans Elkins and the AIA support threaten to cut off collector access to the vast majority of ancient coins openly available on the international market.  In contrast, restrictions squarely linked to find spots are more narrowly tailored to deterring pillage of archaeological sites.  That, of course, is the primary goal of the CPIA; not the furthering of nationalistic impulses that lay claim to any unprovenanced coin as the presumptive state property of the AIA's allies in foreign cultural bureaucracies.

Object Registry Fragment Foolishness

Archaeo-Blogger David Gill wants more details of the Met’s 10,000 or so vase fragments placed en masse on the AAMD’s object registry.  Presumably Gill wants each pictured separately to facilitate detailed study of their potential origin so additional pieces can be repatriated to Italy or perhaps Greece or Turkey.  But why should the AAMD’s procedures be the same for the $10,000,000 artifact as for the $10 artifact?  Gill’s confidant Nathan Elkins has already recognized that coins—given the sheer numbers that have survived-- should not be treated as the AIA treats other artifacts.  Gill should give vase fragments the same break.

Peru Wants Artifacts that Left Country after 1822

Peru has asked French authorities to stop an auction of Peruvian artifacts that left the country years ago.     Sotheby's used to auction off such material in New York, but U.S. import restrictions on pre-Colombian art has driven that business overseas.

President Sarkozy made a concerted effort to increase France's share of the auction business. Perhaps, the Peruvian Government is hoping that France's current "soak the rich" Socialists will be more amenable to repatriation demands, however stale the claim.

Whether French authorities take the Peruvian claim seriously or not, all this is just more evidence that museums and others were snookered into accepting a 1970 date for acquisitions of artifacts.  If they thought such a concession would quiet repatriation demands, they were very, very wrong.   If anything, such concessions have only encouraged further demands-- the slippery slope rule applies yet again.