Panel Discussion on Federal Power and the Repatriation of Cultural Artifacts

On April 3, 2014, the New York City Bar Association hosted a panel on federal power and the repatriation of cultural artifacts.   Alexander Wilson (US Attorney's Office, Southern District of New York), Evan Barr (Steptoe), Michael McCullough (Pearlstein &  McCullough LLP), and James McAndrew (Grunfeld, Desiderio, Lebowitz, Silverman &  Klestadt LLP) served as panelists.  Peter Tompa (Bailey & Ehrenberg, PLLC) served as moderator.  There were approximately sixty (60) individuals in the audience, which included lawyers, government and museum officials, the press, and members of the general public.

Peter Tompa (PT) provided an overview of the relevant issues.  Forfeiture laws have a long history going back to the early days of the Republic, but their application to cultural goods imported into the US is of a relatively recent vintage.  These laws allow the forfeiture of artifacts: (1) that have been introduced into the US based on fraudulent misrepresentations on customs forms; or (2) that are considered stolen under foreign laws that declare them to be state property; or (3) that are subject to import restrictions promulgated by the State Department and US Customs and Border Protection (CBP) under the Convention on Cultural Property Implementation Act (CPIA). Controversies include: (1) country of origin and valuation issues related to alleged misrepresentations on customs forms; (2) the existence of open markets for the exact same sorts of artifacts in countries claiming them to be state property; and (3) whether State and CBP can designate artifacts for import restrictions without regard for their findspot.   MLATs are Mutual Legal Assistance Treaties.  They have provided a basis for information requests that can trigger criminal investigations and forfeiture actions.  There have been questions whether these requests are little more than fishing expeditions.

Alexander Wilson (AW) discussed the statutory bases for forfeiture claims.  The major ones are the anti-smuggling statutes, the National Stolen Property Act (NSPA), and the CPIA.  An innocent owner defense is possible for NSPA claims, but not for Title 19 anti-smuggling statute or CPIA claims.  Because the procedures are somewhat cumbersome, MLATs rarely come into play in a cultural property context.    AW then discussed some of his office's successful seizures.  These include the repatriation of a wall panel from a Chinese tomb, a gold phiale, a Mongolian dinosaur fossil and a Khmer statute.   State Department input varies.  It is actively involved if a foreign request for forfeiture comes through State.  State has also provided technical assistance about foreign cultural patrimony laws.

Evan Barr (EB) now represents white collar criminal defendants.   He previously worked as a prosecutor.   His cases as a prosecutor included the forfeiture of a gold phiale found on private land in Italy.  EB wonders if forfeiture claims are now being overused.  He attributes this trend to the government seeking to benefit from a lower burden of proof in forfeiture actions as compared to criminal actions.  EB also indicated that claimants face an up-hill battle due to the strength of the government's resources, the fact that one's reputation is frequently damaged in the press if a forfeiture complaint is filed, and the cost of litigation-- which invariably exceeds the value of an item that is seized.

Those who want to mount a defense typically file an attack on the allegations in the complaint in the context of  motion to dismiss.  This has only worked to date in the Ka Nefer Nefer case, though that dismissal is on appeal and EB thinks the Court will likely reverse and allow the government to amend its forfeiture complaint.  There, the issue was whether an inference of theft provided sufficient basis for a claim that a mummy case was stolen under an Egyptian patrimony law.  Other defenses that can be raised to a forfeiture complaint include inadequate notice that foreign law vests title in the state, a claim that export of the artifact predated a patrimony law, and statute of limitations.  EB believes the Department of Justice should publish prosecutorial guidelines that will preclude forfeiture claims being made where these defenses are clear.  EB also mentioned that some have argued that the CPIA should be the exclusive remedy for foreign states, but the Second Circuit Court of Appeals has rejected this argument.  EB expressed concerns about how the government handled the Mongolian dinosaur case.  Bringing a criminal action after the dinosaur's owner asserted a civil claim is troubling because it may suggest he was being punished for asserting his civil rights.  However, EB assumes the government would say there always was a parallel criminal investigation.

Michael McCullough (MM) abandoned his prepared text in the interests of saving time for questions. Instead, he made several observations.   First, he maintains that "cultural property" is a misnomer as cultural goods are collected as art.  Their art historical value is what gives them monetary value.  Second, he quoted a Cambodian cultural official who indicated that the repatriation of a Khmer statue satisfied the souls of Cambodians ancestors.   MM contrasted this government official's view with our own strong tradition of secular governance.  MM indicated that it is difficult to negotiate anything with any government official who maintained such a world-view. MM also noted that the prevalence of such a world-view in certain source countries has had the effect of shutting-out reasonable people from the negotiation process.  Finally, MM criticized the courts in the Mongolian dinosaur and Khmer statue cases because they deferred rulings on whether foreign law clearly vested title in the foreign state until the discovery process is complete.  This effectively means this issue will not be addressed because of the expense of taking a matter to trial is cost prohibitive.

Jim McAndrew (JA) drew on his long experience as a top customs official for his talk.  JA indicated the burden of proof  in forfeiture cases effectively allows the government to bring weak cases, confident in the knowledge that most will not be contested.  JA estimates approximately 95% of the time during the period he was active as a Customs agent focusing on such issues (1999-2010) foreign countries could not support their own claims.   When JA was in charge, he made sure that CBP would only seize artifacts if there was some indicia that US law was broken.  Now, however, it appears that artifacts are being detained and seized based on vague allegations of illegal conduct.  Provenance is not a legal requirement, but CBP agents demand it as if it is.  JA realizes many artifacts have no provenance attached to them.   JA joked the demands are like asking someone if he still has the paperwork for a business suit.

If an artifact is seized, JA advocates avoiding the administrative process and instead opting for a court to determine the matter.  This will require a US attorney to look at the seizure and they are far more likely to drop dubious cases.  JA disagrees with AW about the use and potential abuse of MLATs as information gathering devices.

JA also expressed frustration that CBP regularly ignores statutory time limits relating to when an item must be seized or released. JA has had situations where CBP has held artifacts for some eighteen  (18) months with nothing other than the statement that "the matter is under investigation" provided in response to inquiries.   JA has filed FOIA requests, but this usually does not provide useful information.

JA believes that the State Department views its mission as promulgating MOUs.  The interests of US small businesses and collectors don't really matter.   JA has also been frustrated because forfeiture actions are filed ignoring statutes of limitations in foreign countries as well as private ownership of antiquities in these countries.   When JA was head agent, JA sent around a five (5) point check list through INTERPOL  It was his practice to only act if at least three (3) of the five (5) points were satisfied.  JA is concerned that CBP agents may now be confusing their roles.  They are US Customs, not Chinese, Italian or Egyptian agents.

The panel next answered some questions from the floor.  Barbara Hoffman, an art law practitioner, wondered what could be done about the problems that were raised during the presentation.   PT indicated that there would be more discussion of this topic during an April 10th seminar.  MM suggested that the law could be changed to require determinations if a forfeiture was supported by a valid foreign patrimony law at the outset.  Another questioner wondered if investors could be protected by an innocent owner defense.  Both AW and PT indicated that was possible for a Title 18 stolen property claim, but not for a smuggling or CPIA claim under Title 19 of the US Code.  Another speaker contested MM's view that antiquities only have value as art.  She indicated some artifacts, like the Khmer statue mentioned, had religious significance for those within source countries.  She also indicated that the religious value of the Khmer artifact was seriously damaged when the statue lost its hands, possibly when it was looted.  A speaker from the State Department wanted to know how Holocaust art was treated.  EB indicated that Holocaust art is considered stolen property under traditional views of what is stolen.  He also indicated that provenance research is much easier for Holocaust era art because good records were often kept of its original owners.