Now, if I may pass for a moment to the question of procedures and burdens of proof, which is the area of one of the great improvements in the bill. I do want to clarify a matter which involves a difference of interpretation between the art dealers and the State Department. One of the major changes made in the legislation was to alter the presumption normally applied in customs cases putting the burden of proof on the Government in most particulars. One issue where the burden of proof is placed on the Government is to demonstrate that the object fits within the proscribed list. The Government must show both that it fits in the proscribed category and that it comes from the country making the agreement. So the burden of proof of provenance is on the Government, a burden which I don’t think has been appreciated by all the critics of this legislation. This means in a significant number of cases it will not be possible to require an object’s return. Now this is a policy judgment. The burden of proof on provenance could have been placed on the importer, which would preclude importation where provenance could not be established. We have not gone that far; it may be that Congress, when it focuses on this issue, may decide otherwise. To put the burden of proof of provenance on the importer may be the only truly effective way of avoiding importation of objects illegally removed from their country of origin. But we in the State Department have not promoted that solution, recognizing that where the facts are obscure, U.S. collectors should not be precluded from competing for the material. . . . .
The only country that would have the right to claim such an object under the bill is the country where it was first discovered. It would have to be established that the object was removed from the country of origin after the date of the regulation.
.Proceedings of the Panel on the U.S. Enabling Legislation of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 4 Syracuse J. Int’l L. & Com. 97 1976-1977 at 129-130.
As Feldman explains, questions of burden of proof -- particularly where they relate to forfeitures of private property rights--are for Congress to determine, not cultural bureaucrats, DOJ attorneys or even the Courts. Yet, there seems to be an assumption by some bloggers associated with the archaeological lobby that advocating for one's rights to due process is somehow misguided or even the work of "idiot" "cowboys." But due process is what is supposed to separate this country from dictatorships. So, perhaps the ACCG should be commended not condemned for continuing to assert its rights to due process on its own behalf and on behalf of collectors everywhere in ongoing litigation and, if necessary, on appeal.