Please Comment on the Proposed MOU's with Turkey and Tunisia

            The United States Department of State has proposed new Memorandums of Understanding (MOU’s) with Turkey and Tunisia.  Both proposals will be extremely problematical for coin collectors as MOU's could impose embargoes on the import of a wide variety of widely collected Greek, Carthaginian, Roman Provincial, Roman, Byzantine, and Islamic coins.  Further information about the January 21, 2020 Cultural Property Advisory Committee (CPAC) meeting and how to comment before the January 7, 2020 deadline can be found here:  https://www.federalregister.gov/documents/2019/11/26/2019-25683/cultural-property-advisory-committee-notice-of-meeting 

A.  Background for Coin Collectors

             There are large numbers of coin collectors and numismatic firms in the US.  Very few collectors do so to “invest.”  Most collect out of love of history, as an expression of their own cultural identity, or out of interest in other cultures.  All firms that specialize in ancient coins in the US are small businesses. Private collectors and dealers support much academic research into coins.  For example, an American collector collaborated with academics to produce an extensive study of Seleucid coins. A further clamp down on collecting will inevitably lead to less scholarship.

            While what became the Cultural Property Implementation Act (CPIA) was being negotiated, one of the State Department’s top lawyers assured Congress that “it would be hard to imagine a case” where coins would be restricted.   In 2007, however, the State Department imposed import restrictions on Cypriot coins, against CPAC’s recommendations, and then misled the public and Congress about it in official government reports.  What also should be troubling is that the decision maker, Assistant Secretary Dina Powell, did so AFTER she had accepted a job with Goldman Sachs where she was recruited by and worked for the spouse of the founder of the Antiquities Coalition, an archaeological advocacy group that has lobbied extensively for import restrictions.  Since that time, additional import restrictions have been imposed on coins from Algeria, Bulgaria, China, Egypt, Greece, Iraq, Italy, Libya and Syria. 

            The cumulative impact of import restrictions has been very problematical for collectors since outside of some valuable Greek coins, most coins simply lack the document trail necessary for legal import under the “safe harbor” provisions of 19 U.S.C. § 2606.  The CPIA only authorizes the government to impose import restrictions on coins and other artifacts first discovered within and subject to the export control of either Turkey or Tunisia. (19 U.S.C. § 2601). Furthermore, seizure is only appropriate for items on the designated list exported from the State Party after the effective date of regulations.  (19 U.S.C. § 2606).  Unfortunately, the State Department and Customs view this authority far more broadly.  In particular, designated lists have been prepared based on where coins are made and sometimes found, not where they are actually found and hence are subject to export control.  Furthermore, restrictions are not applied prospectively solely to illegal exports made after the effective date of regulations, but rather are enforced against any import into the U.S. made after the effective date of regulations, i.e., an embargo, not targeted, prospective import restrictions.

      B.  What You Can Do

                Admittedly, CPAC seems to be little more than a rubber stamp.  Still, to remain silent is to give the cultural bureaucrats and archaeologists with an ax to grind against collectors exactly what they want-- the claim that any restrictions will not be controversial. 

            For comments, please use http://www.regulations.gov, enter the docket [DOS-2019-0043] and follow the prompts to submit your comments.  Alternatively, click this Federal Register link and click on the Green “Submit Formal Comment” Button which should pull up a screen that allows you to comment:  https://www.federalregister.gov/documents/2019/11/26/2019-25683/cultural-property-advisory-committee-notice-of-meeting)(Please note comments may be posted only UNTIL January 7, 2020 at 11:59 PM.

            Please also note comments submitted in electronic form are not private. They will be posted on http://www.regulations.gov. Because the comments cannot be edited to remove any identifying or contact information, the Department of State cautions against including any information in an electronic submission that one does not want publicly disclosed (including trade secrets and commercial or financial information that is privileged or confidential pursuant to 19 U.S.C. 2605(i)(1)).

C.  What Should You Say?

What should you say?  Provide a brief, polite explanation about why CPAC should deny or limit any import restrictions. Consider the following points:

• The governing statute requires that restrictions only be applied on artifacts "first discovered in” Turkey or Tunisia. But hoard evidence demonstrates that many Greek, Carthaginian, Roman, Byzantine and Islamic coins circulated extensively outside the confines of those modern nation states.  The State Department and U.S. Customs have already recognized this fact for higher denomination Greek coins struck in Greece.  To be consistent, any restrictions should not touch higher denomination coins from Turkey or Tunisia, including Roman Provincial Silver, tetradrachms, and gold coins.  Nor should restrictions be placed on Roman, Byzantine, and Islamic coins struck in these countries. Such imperial coins circulated throughout the Empires for which they were made and beyond.  
• The governing statute requires restrictions only be placed on artifacts of "cultural significance." But coins -- which exist in many multiples-- do not meet that particular criteria.
• The governing statute requires that less drastic remedies be tried before import restrictions. But neither Turkey nor Tunisia has tried systems akin the UK Treasure Act and Portable Antiquities Scheme before seeking restrictions.
• The governing statute requires that restrictions be consistent with the interests of the international community in cultural exchanges. But restrictions diminish the ability of American collectors (particularly Turkish or Tunisian Americans) to appreciate the cultural heritage of these countries and greatly limit people to people contacts with other collectors in Europe.
• Much of what Turkey would be allowed to “claw back” if a MOU is granted are cultural artifacts of displaced Greek, Armenian and Jewish populations.  That simply should not be allowed to happen as it would only reward Turkey for its harsh policies to ethnic and religious minorities. 

Finally, you don’t have to be an American citizen to comment—you just need to be concerned enough to spend twenty or so minutes to express your views on-line. 

Addendum (Dec. 9, 2019):  For more information about the requests and the process, see the Cultural Heritage Center's post about the upcoming CPAC meeting:  https://eca.state.gov/highlight/cultural-property-advisory-committee-meeting-jan-21-22-2020

Summary of CPAC Meeting on Requests from Yemen and Morocco

On October 29, 2019, the US Cultural Property Committee (CPAC) held an open session on proposed MOU’s with Morocco and Yemen.  Video conferencing was used for speakers in diverse locations to provide oral comments to CPAC members meeting at the State Department.

The following individuals were meeting at the State Department: (1) Andrew Cohen, CPAC’s ED; (2) Jeremy Sabloff, CPAC’s Chair (Santa Fe Institute- Museum Representative); (3) Rosemary Joyce (Berkley- Anthropology Representative); Karol Wight (Corning Glass Museum-Museum Representative: (4) James Reap (University of Georgia Historic Preservation-Public Representative);  (5) Dorit Strauss (Art and Insurance Advisory Services- Expert in the International Sale of Cultural Property); and (6) Stefan Passantino (Michael Best & Friedrich, LLP-Public Representative).  There were other State Department staff in the room and apparently other CPAC members listening remotely.

Andrew Cohen gave a short overview about the purpose of the proceeding.  Jeremy Sabloff then indicated that CPAC had received 185 public comments (mostly relating to Jewish religious artifacts), and that due to time constraints comments of public speakers would be limited to 4 minutes (rather than the usual 5).

Stefan Passantino asked Carole Basri (American Filmmaker and Lawyer of Iraqi Jewish Decent) if she would be satisfied with an exemption for Jewish artifacts.   She says a carve out is important, but the problem is that while Jewish artifacts have not been explicitly named in recent designated lists, Jewish artifacts still fall under more general categories.  She also indicated that it is often difficult to tell Jewish artifacts from similar looking Islamic ones.  She notes that Jewish Torahs are in effect private property lent to Synagogues for communal use.  MOUs have in the past have recognized MENA governments’ rights to such private property.

Glenn Corbett (Council of American Overseas Research Centers) has worked to document and preserve the contents of Yemeni museums.  He believes that his Yemeni government colleagues share CAORC’s concerns and truly do want to protect Yemeni cultural patrimony.

Mr. Epstein- Indicates that Torah scrolls are personal property that must be protected.  This property must not be awarded to the anti-Semitic Yemeni regime.

Kate FitzGibbon (Committee for Cultural Policy and Global Heritage Alliance) expressed concern about the short amount of time allowed for speakers along with the short two week long comment period.  She notes that the CPIA has certain criteria that should be met before a MOU is approved.  The State Department’s public summary of the Moroccan MOU request was produced AFTER the close of the public written comment period and did not identify the type of import restrictions or describe the objects for which import restrictions are being sought. Nor did the public summary describe any looting taking place today.   Ms. FitzGibbon appreciates that the CPAC is considering a carve-out for Jewish artifacts, but the issue would not arise if the Cultural Property Implementation Act were applied as written as restrictions would then be placed on far fewer categories of artifacts.  She also indicates there needs to be current looting to trigger the CPIA and that it not clear such looting is taken place in Morocco.  She also notes that Moroccan law is a bit unclear.  She notes that Dr. Sabloff (who also lives in Santa Fe, New Mexico) should recall a local shop that sold Moroccan cultural artifacts that were legally imported, but which would likely be covered under an all-encompassing MOU.

Benjamin Gladstone is a doctoral student.  He is appalled by reports that the US government is considering signing away the cultural heritage of Yemeni and Moroccan Jewry to the governments of those countries.  He is particularly concerned not only about Torah scrolls but grave goods as well.  Yemeni Jews were discriminated against.  Jewish orphans were subject to forced conversions to Islam.  Whether one was an orphan was determined by whether the father was living.  Lots of children were forcibly removed from Jewish widows, and then tortured into accepting Islam.   Young Jewish women who were “orphaned” were also forced to marry Yemeni Muslims.  For many years, the State of Israel sought to preserve the grave of a Jewish holy man in Yemen.  The Yemeni government sought to erase any trace of the grave by erecting a school over it.

Sarah Levin (Jews Indigenous to the Middle East and Africa (JIMENA)) speaks for displaced Jews from Yemen, Morocco and elsewhere in the region.  Her group has contacted Secretary of State Pompeo and House Foreign Relations Chair Eliot Engel to express concerns about the US recognizing the rights of MENA governments to Jewish cultural artifacts when Jews have been ethnically cleansed from the region. Jews are not allowed access to Jewish cultural artifacts that remain in the region because they were not allowed to remove them when they fled.

Katie Paul (ATHAR Project) shows screen shots of Yemeni and Moroccan cultural artifacts available for sale on Facebook pages for groups within the region.  She maintains that some of these groups are very large and also have members in the US.  The images show a range of objects including statuary, Torah scrolls and coins.

Mr. Sissan (Spelling?)  Indicates that Jewish people saw themselves as foreigners in MENA countries and logically MENA countries should not be entitled to their cultural artifacts.

Peter Tompa (International Association of Professional Numismatists) states that CPAC needs to look before it leaps to approve yet another round of MOUs with authoritarian MENA governments.  The Yemeni MOU is very troubling because Yemen is complicit along with its Saudi allies in the intentional destruction of cultural sites, including the Dhamar Museum.  A few images of what purport to be looted material on Facebook is insufficient to establish that Morocco’s cultural patrimony is in jeopardy. CPAC should work to ameliorate damage done to coin collecting by ensuring that any import restrictions are only applied prospectively to coins proven to be illicitly exported from the State Party that received import restrictions after the effective date of any regulations.  Current procedures do not comport with the CPIA because they effectuate an embargo on all coins imported after the effective date of any regulations. 

 

Kate FitzGibbon notes that a number of the images on Facebook shown by Ms. Paul may be fakes.  

Ms. Paul indicates she vetted some with experts and that fakes are often used to hide real objects.

Carole Basri asks the Committee to review her Fordham law review article about Jewish cultural heritage. She notes MENA governments treat Jewish archival material poorly.  In one instance, some such material was almost incinerated.

Rosemary Joyce wants Ms. Basri and others to know that the Red List (which has Jewish artifacts on it) is not the same as the designated list. 

Carole Basri argues that any Jewish material that US Customs seizes should be given to Jewish groups in the US and not returned to MENA countries.

Look Hard Before You Leap

Here is what I planned to say during today's CPAC meeting.  My actual comments were somewhat abbreviated:

          I am here to ask that you look hard before you leap to approve yet another round of MOUs with authoritarian MENA governments.  Yemen is a particularly troubling case with an ongoing civil war.  The Hadi government has been propped up by Saudi Arabia.  It is undisputed that Saudi Arabia and its coalition partners are complicit in intentionally destroying cultural sites, including bombing the Dhamar museum.  The other major party, the Houthis, are Iranian proxies.  The Hadi Government has accused the Houthi of doing most of the looting in the country, but if that is true wouldn’t that also mean any looted material is going to Iran, not here?  In any case, the net result of any MOU with Yemen will be repatriating artifacts (that may or not have been in Yemen for decades) back to a war zone.  A MOU with Morocco raises a different issue—is the patrimony of Morocco really in jeopardy or is this just a case where another MENA government has been promised the same treatment as its neighbor, Algeria.  The information that has been provided about a shadowy seizure in France, a few images of what purport to be Moroccan cultural items on Facebook, and even an article that links treasure hunting to sorcery fall well below the quantum of evidence required.

            As to coins, let me make the following points.

·        There are large numbers of coin collectors and numismatic firms in the US.  Very few collectors do so to “invest.”  Most collect out of love of history, as an expression of their own cultural identity, or out of interest in other cultures.  All firms that specialize in ancient coins in the US are small businesses.

·        Private collectors and dealers support much academic research into coins.  For example, a German collector and a curator at the American Numismatic Society collaborated to produce, “Coinage of the Caravan Kingdoms,” an extensive study which includes research into the coinage of ancient Yemen.  A clamp down on collecting will inevitably lead to less scholarship.

·        While what became the CPIA was being negotiated, one of the State Department’s top lawyers assured Congress that “it would be hard to imagine a case” where coins would be restricted.   In 2007, however, the State Department imposed import restrictions on Cypriot coins, against CPAC’s recommendations, and then misled the public and Congress about it in official government reports.  What also should be troubling is that the decision maker, Assistant Secretary Dina Powell, did so AFTER she had accepted a job with Goldman Sachs where she was recruited by and worked for the spouse of the Antiquities Coalition’s founder.  Since that time, additional import restrictions have been imposed on coins from Algeria, Bulgaria, China, Egypt, Greece, Iraq, Italy, Libya and Syria. 

·        The cumulative impact of import restrictions has been very problematical for collectors since outside of some valuable Greek coins, most coins simply lack the document trail necessary for legal import under the “safe harbor” provisions of 19 U.S.C. § 2606.

·        It is probably too late to change history, but even at this late date, the problems facing coin collectors could be ameliorated if CPAC works with Customs to ensure the CPIA is applied as written.

o   The CPIA only authorizes the government to impose import restrictions on coins and other artifacts first discovered within and subject to the export control of either Morocco or Yemen. (19 U.S.C. § 2601). Furthermore, seizure is only appropriate for items on the designated list exported from the State Party after the effective date of regulations.  (19 U.S.C. § 2606).  Unfortunately, the State Department and Customs view this authority far more broadly.  In particular, designated lists have been prepared based on where coins are made and sometimes found, not where they are actually found and hence are subject to export control.  Furthermore, restrictions are not applied prospectively solely to illegal exports made after the effective date of regulations, but rather are enforced against any import into the U.S. made after the effective date of regulations, i.e., an embargo, not targeted, prospective import restrictions.

o   The State Department will no doubt point to a 4^th Circuit case as support for its procedures, but it is important to recognize this decision was ultimately predicated on the view that the Court should not interfere with what it considered to be a “foreign policy matter.” That of course has no bearing on CPAC recommending that State and Customs do the right thing and ensure any restrictions that may be advocated are properly phrased to only apply to coins illicitly removed after the effective date of regulations.  As referenced in our papers, Congress mandated a similar formulation under Syrian import restrictions.  Thank you. 

Slim Public Support for MOU's with Yemen and Morocco

The docket for the upcoming CPAC meeting on proposed MOU's with Morocco and Yemen indicates that 170 comments were received about one or both of these MOU's.  The vast majority of comments came in response to an appeal from JIMENA (Jews Indigenous to the Middle East & North Africa) against State Department efforts to recognize the rights of authoritarian MENA countries to the religious and cultural artifacts of their displaced Jewish populations.

Coin collector-numismatic trade comments were way down (to approximately 10) from 100's in the past, no doubt due to frustration about the likelihood of numismatic logic moving the State Department, as well as the fact that the obscure coin types found in these countries are mainly of interest to specialists. 

Archaeologists and archaeological advocacy groups were only represented with approximately 10 comments as well, which should again confirm that there is very little actual public support for these MOU's.

Oddly, the "Antiquities Coalition" which has worked with the Yemeni Government on this MOU apparently failed to submit any public comments.  Is it possible the Coalition has already received assurances that the MOU's are a "done deal?"

Short Comment Period for Proposed MOU's with Morocco and Yemen

The State Department's Cultural Heritage Center is only allowing a mere two weeks for written comment on proposed MOU's with Morocco and Yemen.  For the applicable Federal Register Notice along with a direct link for comments see here .

In what must be an unprecedented move, the State Department only provided public notice about the CPAC hearing the same day it published Yemen's Article 9 request.  While summaries of the requests are promised, none have yet been provided, making intelligent comment even more difficult.

Yemen's request should be controversial.  Yemen is involved in a three way civil war.  Its government and its Saudi allies stand accused of intentionally targeting cultural sites, including bombing the Dhamar Museum into dust. This raises questions whether the Yemeni government has "unclean hands" and whether artifacts should be repatriated to a war zone.  There are also other moral issues related to whether the United States Government should recognize Yemeni government rights to artifacts of displaced Jewish and Christian populations.  Under the circumstances, one has to wonder whether the short comment period is designed to keep potentially embarrassing comments about the merits of the Yemeni request to a minimum.

Addendum (10-7-19):  Additional information, including a Public Summary of the Yemeni request, can be found here.

US State Department Imposes Embargo on Algerian Cultural Artifacts-- Including Rope!

The U.S. State Department has approved a MOU and import restrictions on behalf of Algeria's authoritarian government. For more, see today's Federal Register notice.

Once again, the designated list is extremely broad. In what has to be a first, import restrictions have even been imposed on rope!

Both coin collectors and Jewish groups will once again be disappointed.  Import restrictions have been applied on virtually all coins that were made or circulated within Algeria down to 1750, including those made outside the confines of what is now Algeria by the Carthaginians, Byzantines, Ottomans and Spanish.  While there are no explicit restrictions on artifacts of Algeria's displaced Jewish population, certain categories like "manuscripts" may nonetheless encompass Jewish religious artifacts like Torahs.

Import restrictions are controversial to the trade and collectors because, as construed by U.S. Customs and Border Protection, they embargo all undocumented items of types on designated lists imported after the effective date of the regulations, not just items illegally exported from a UNESCO State party after the effective date of import restrictions as required under CPIA, 19 U.S.C. §§ 2601, 2604, 2606, 2610. Such regulatory actions have converted CPIA import restrictions into embargoes of all objects of restricted types rather  than targeted, prospective import restrictions that do not impact the purchase of artifacts from the legitimate marketplace abroad.

Import restrictions have been particularly hard on coin collectors and the small businesses of the numismatic trade because most collector's coins (which typically are of limited value) lack detailed provenance histories necessary for legal import. This has greatly damaged the legitimate trade in such items with fellow collectors, especially from within the EU.  Here, if anything, the problem will be exacerbated because Algeria was a French colony for such a long time. Many artifacts must have left Algeria for France during this period lawfully, but with little documentary proof.  Often such material does not have a solid provenance, and cannot be legally imported under U.S. Custom and Border Protection procedures.

Summary of CPAC Meeting to Accept Public Comments for Proposed MOUs with Jordan and Chile

On April 1, 2019, the U.S. Cultural Property Advisory Committee (“CPAC”) met to take public comment on proposed MOUs with the Hashemite Kingdom of Jordan and the Republic of Chile. 

The following CPAC Members appeared to be present: (1) Jeremy Sabloff (Museum) (Chair); (2) Rosemary Joyce (Archaeology/Anthropology); (3) Dorit Straus (International Trade of Cultural Objects); (4) Lothar von Falkenhausen (Archaeology); (5) Karol Wight (Museums); and (6) James Willis (International Trade of Cultural Artifacts).

Andrew Cohen, CPAC’s executive director, provided some background.  CPAC was constituted to provide advice to the executive department about proposed MOUs.  Cohen is the designated federal official to act as liaison between the Department of State and CPAC. 

Dr. Sabloff welcomes all presenters.  He notes CPAC’s role is to advise the President’s designee in the Department of State about MOUs.  He indicates that CPAC’s first annual report should be available on the Cultural Heritage Center website.  He further indicates CPAC is not only charged with considering new MOUs, but with reviewing current agreements.

Dr. Sabloff indicates that past procedures have been changed.  Now, the Committee would ask questions first and then allow 5 minutes for additional comments.  Presenters should focus on a few points made in their submissions or bring up new matters in their presentation. 

There were five speakers (1) Dr. Jane Evans, Temple University; (2) Kate FitzGibbon, Committee for Cultural Policy and Global Heritage Alliance; (3) Dr. Morag Kersel, DePaul University; (4) Dr. César Méndez, Center for Research of Patagonian Ecosystems, Coyhaique, Chile; and (5) Peter Tompa, representing International Association of Professional Numismatists and the Professional Numismatists Guild.

Rosemary Joyce askes Kate FitzGibbon about the market for Jordanian artifacts.  Her point is that there are venues other than large auction houses where Jordanian material is sold.  Ms. FitzGibbon indicates that the public summary provides little information on this issue.  Dr. Joyce acknowledges the public summary could be better but notes CPAC receives additional information about the market in such materials.

Karol Wight asks Dr. Méndez about fossils.  Dr. Méndez indicates he is an archaeologist and not a paleontologist.  He notes the documentation he has seen points to looting of archaeological and paleontological objects in Central and Northern Chile.  Collectors are the end of a chain that leads back to looters.

James Willis asks Kate FitzGibbon about how Jordan’s request—which she views as excessively broad—can be narrowed.  Ms. FitzGibbon indicates the best way to narrow the request is to follow the Cultural Property Implementation Act (“CPIA”) and not impose import restrictions on repetitive objects that are not of cultural significance or trinkets.  FitzGibbon understands concerns about ruined archaeological sites, but Congress drew lines that need to be followed.  She understands the impetus to “do something,” but above all else CPAC should follow the law.  Mr. Willis asks about fossils.  Ms. FitzGibbon indicates that fact that Chile treats them as archaeological objects does not mean the U.S. statute does.  Ms. FitzGibbon believes the CPIA does not apply to paleontological objects like fossils. 

Dr. Sabloff allows Dr. Evans to speak even though she submitted her comments late after the comment period closed.  She reads her letter supporting import restrictions on coins.  She maintains that Nabataean coins are local issues primarily found in Jordan.  She indicates that illegal metal detectors are in use in Jordan.  She mentions that 400 coins were stolen from a Jordanian museum and fakes put in their place.  She maintains that import restrictions are necessary to protect Jordanian coins from looters. 

Dorit Straus asks Peter Tompa about how dealers police themselves and about provenance issues related to coins.  Peter Tompa states that the major trade associations ask their dealer members to comply with the law of every country in which they do business.  As for provenance, Tompa indicates that provenance information is normally not kept for low value coins like those from Jordan.  Provenance is being increasingly transmitted for higher value coins that have previously appeared at auction.  He notes that most people have antiques in their house that also lack a solid provenance.  It is simply not a legal requirement in the US or Europe and presumably is not a requirement for collectors in Jordan either.

Dr. Sabloff asks Tompa about the annual coin show that takes place in Amman, Jordan.  He indicates that he cannot add more to the article cited in his papers.

Dr. Sabloff asks Tompa to give his statement.  Tompa focuses on two issues.  First, one cannot assume that coins that circulated within Jordan were actually found there.  There is no question about this for coins struck by Greek, Roman, Byzantine and Islamic empires struck elsewhere.  Nabatean and coins of the Decapolis should be considered “regional issues” rather than “local” ones as maintained by Doctors Elkins and Evans.  The Nabatean kingdom encompassed parts of what are now Jordan, Israel, Palestine, Syria, Saudi Arabia and Egypt.  Nabatean coins are found in all these countries.  The same should be the case for later Roman provincial coins because Decapolis cities were not only in Jordan but in Syria and Israel as well.  This is significant because Customs conflates where a coin is made with where it is found.  There either should be no import restrictions on coins or any restrictions should be explicitly limited to coins illicitly removed from Jordan after the effective date of regulations.  Customs currently misapplies import restrictions as embargos on all coins of a given type imported after the effective date of restrictions.  In contrast, the CPIA only allows prospective import restrictions on objects illicitly exported from a country like Jordan after the effective date of the governing regulations.  Tompa also notes that ancient coins are openly sold at an Amman coin fair and at the Petra archaeological site.  These sales argue either for no import restrictions on coins or at least that Jordan issue exports for coins sold at these venues.  This would allow for the lawful export of such coins as well as stimulate the local economy and encourage tourism.

Dr. Kersel indicates that even “trinkets’ may have archaeological value.  She notes there are over 30 letters of support from archaeologists and archaeological groups for a MOU with Jordan.  Jordan could do more to protect its cultural patrimony, but it is probably doing what it can with current budgetary constraints.  Jordan has hosted many refugees from Iraq and Syria.  This has put great strains on the country.  Jordan has a new cultural patrimony law.  It recently signed a MOU with Egypt to protect cultural artifacts.  The Antiquities Department is underfunded but doing what it can.  Dr. Kersel’s “Follow the Pots” project has shown that biblical artifacts are subject to looting.  There have been anti-looting workshops in Jordan.  There have been museum loans, most recently to the Met for the “World Between Empires” exhibit.  Jordan has been very generous with loans to US institutions to study artifacts from archaeological digs.  Illicit material has traditionally left Jordan through Israel.  Israel has a new registration requirement placed on antiquities dealers, but it is too early to know if it has worked. 

Ms. FitzGibbon states the Jordanian request includes many repetitive objects that should not be subject to import restrictions under the CPIA.  She notes such objects appear to be sold openly at the Petra archaeological site.   The police apparently look the other way.  She recounts one incident in one of the letters that was submitted where the police were making tea for looters.  She indicates that the trade in “biblical artifacts” has been going on for a long time.  Mark Twain wrote about them and Ms. FitzGibbon has a cheap oil lamp purchased years ago by a relative.  Now that Israel has instituted a registration system, it will be far more difficult for material looted from Jordan to be sold there.   The Israeli Antiquities Service is certainly not lax in enforcing anti-smuggling laws.  Ms. FitzGibbon called Bob Dodge, who was mentioned in the summary as selling Jordanian artifacts.  He indicated that he sold two such artifacts in the last 20 years.  Ms. FitzGibbon states there is no indication valuable Jordanian artifacts are for sale in quantity in the United States. 

Dr. Méndez indicates local looters are just the end of a chain that starts with wealthy collectors.  There are agencies in Chile charged with protecting cultural patrimony from looting.  Antiquities help give a voice to the people. 

Dorit Straus asks Dr. Kersel asked about cooperation between Israeli and Jordanian authorities.  Dr. Kersel indicates such cooperation has existed since the Oslo accords.  She also indicates a MOU with the US would be a signal to local authorities to increase such cooperation.

Dr. Sabloff asks Dr. Evans if she would like to add anything.  She states that an archaeological dig in the Golan Heights demonstrates that Nabataen coins circulated primarily in Jordan because only a few Nabataen coins were found at this site.  She also indicated that the use of metal detectors made it important that import restrictions be imposed.

Dr. Sabloff asks Kate FitzGibbon if she has any final words.  She notes that the US Congress requires CPAC to quantify the amount of money Jordan is spending on protecting its cultural heritage.  She also notes in response to Dr. Sabloff’s comment that CPAC also undertakes a continuing review of current agreements that CPAC has allowed MOUs to buttress authoritarian governments’ claims to control the past.  Ms. FitzGibbon reports she attended a large 3000 person meeting of the Association of Asian Studies.  They have issued a very strong statement condemning China for its oppression of Uyghurs in Xinjiang.  Ms. FitzGibbon spoke with several US academics whose graduate students had gone back to visit family and then disappeared into camps where they were tortured or even killed. She indicated unless CPAC also takes strong steps to disavow agreements and renewals with Egypt, Cambodia, Libya, and most especially China, it will be accountable for the use of cultural heritage as tool for authoritarian governments.  She recognizes these are strong words, but notes despite China’s actions a renewal of the current MOU was nonetheless done in January 2019.  Ms. FitzGibbon urges that this not be allowed to continue. 

Dr. Sabloff closed the session thanking the participants. He notes CPAC closely reviews the testimony and submissions before making recommendations to the State Department. 

My Comments at Today's CPAC Hearing Regarding a Proposed MOU with Jordan

      Here are my oral comments at today's CPAC hearing regarding a proposed MOU with Jordan.   My written comments on behalf of the numismatic trade may be found here:  https://www.regulations.gov/document?D=DOS-2019-0004-0006

          Thank you for this opportunity to speak on behalf of the small businesses of the numismatic trade and collectors.  Our papers cover the relevant issues in detail, but let me focus on two important points.  First, you simply cannot assume coins of types that circulated in Jordan were found there.  Leaving other statutory requirements aside, that means there either should be no restrictions placed on coins at all or, if you must have restrictions that they only apply to coins proven to have been illicitly exported from Jordan after the effective date of any applicable regulations.  That is in fact the statutory mandate, but one which has been ignored over the years in favor of restrictions on coins of types on designated lists imported after the effective date of restrictions.  The way that Customs enforces import restrictions has been hugely problematical to the legitimate numismatic trade and collectors.  It has led to embargoes of all coins of given types, rather than focused, prospective import restrictions that do not impact the purchase of coins from the legitimate marketplace abroad, mostly within Europe.  The one appellate court that has looked at the issue has said—wrongly in our view—that import restrictions are a “foreign policy” issue beyond judicial review.   So, if anything, that makes your work to make sure that the Cultural Property Implementation Act is being followed even more important.

          The underlying problem is that U.S. Customs has confused where coins are made with where coins are found.  Only where items are actually found is what is relevant in CPIA, 19 U.S.C. § 2601.  It is simply incorrect to assume that all coins of types that circulated within Jordan were found there.  There is no factual dispute about Greek, Roman, Byzantine, and Islamic coins struck elsewhere that were traded throughout these Empires.  It is far more likely any such coins were found elsewhere than in Jordan.  On the other hand, there appears to be a dispute about what Dr. Elkins calls “local coinage,” but which more accurately should be described as “regional coinage.”   As collector and scholar Martin Huth (who co-Authored the ANS book, “Coinage of the Caravan Kingdoms”) has stated in his own public comments, “The Nabataean kingdom covered, at different times, various parts of what is now Jordan, Israel, Palestine, Syria, Saudi Arabia and Egypt. Nabataean coins are found in all of these countries. Hence, it is neither possible to equate "Nabataea" with "Jordan", nor to attribute (or re-patriate) a non-provenanced Nabataean coin legally to Jordan. This situation is further compounded by the obvious fact that, as with any ancient or modern coinage, coins were produced for circulation and may therefore be found on the territory of another modern state (e.g., Israel) than that where it was minted (e.-g., Jordan).”  IAPN and PNG also note the same must be true for the coins of the Decapolis, which included cities not only in Jordan but in what is today’s Syria and Israel.

          CPAC should also be aware that coins of the sort that may be restricted also appear to be openly available for sale in Jordan itself at an annual coin show sanctioned by the Ministry of Culture and from Bedouin traders at Petra.  If that does not argue against restrictions, it should at least argue for the issuance of export permits being a precondition of any grant of import restrictions on coins.  Article 6 of the UNESCO Convention and CPIA, 19 U.S.C. § 2606 assume State Parties like Jordan will issue export permits. CPAC should also make any import restrictions conditional on issuance of such export permits.  Such permits should be issued both at the annual coin fair in Amman and at the Petra archaeological site where low value coins are sold to tourists.  This would allow for lawful export of such coins as well as help stimulate the local economy and encourage tourism. 

          Thank you again for listening to the concerns of the small businesses of the ancient coin trade as well as collectors.  Please let me know if you have any questions.

CPAC to Consider New MOU's with Jordan and Chile

On April 1, 2019, the U.S. Cultural Property Advisory Committee will consider proposed MOU's and associated import restrictions with the Kingdom of  Jordan and the Republic of Chile.Please consider commenting before the March 25, 2019 close.  

More about the CPAC meeting, including a public summary of the Jordanian request, can be found here.

To comment, click on the blue "Comment Now" button here.  If that does not work, paste this address into your web browser and try: https://www.regulations.gov/document?D=DOS-2019-0004-0001

The State Department Cultural Heritage Center's updated website provides much better information than in the past about what CPAC considers before recommending import restrictions.  This information may be accessed here.

To the extent possible, members of the public should try to comment on these factors.  Collectors and members of the trade should particularly be well placed to discuss how import restrictions negatively impact the study and appreciation of the history and culture of Jordan and Chile, and the people to people contacts collecting fosters.

The prospect of import restrictions on ancient Jordanian and Colonial and Republican era coins from Chile also raise specific factors that should be addressed.

Ancient Jordan was part of much larger Empires.  Greek, Roman, Byzantine and Islamic coins minted elsewhere also circulated in Jordan, but we cannot assume all such coins-- or even a substantial percentage of them-- were found there.

Even more "local issues" circulated regionally outside of Jordan.  For example, the coins of the Nabatean Kings would have circulated  throughout their kingdom, which included parts of modern day Jordan, Syria, Saudi Arabia, Egypt, Palestine and Israel.  Moreover, later Greek Imperial coins of the Decapolis also likely circulated throughout the area, which included Israel and Syria.

There is a threshold issue of whether Chilean coins meet the definition of "archaeological" or "ethnological" objects that are a predicate for them to be restricted. Coins struck in the 17th century and later are likely never to have been buried in the ground.  Moreover, as products of what were then considered modern industrial processes, one would be hard pressed to consider them "ethnological objects."

It is also difficult to assume coin types that circulated within Chile were found there.  Chile also was part of a much larger Spanish Empire that issued similar coins from multiple mints intended not only for use throughout that Empire but as trade coins.  These trade coins were also used extensively in the United States (where they were legal tender until 1857) and Asia, particularly China.  Even after Chile broke away from Spain, it struck similar trade coins that again ciruclated as far away as Asia and the United States.  So once again, it is impossible to assume that such coins were found in Chile.

Update 3/14/19:  The State Department has released a public summary of Chile's request.  It is focused on Pre-Columbian archaeological objects. One issue that should be noted is whether import restrictions may be placed on fossils because Chilean law includes paleontological material as a subset of archaeological material. The Chilean Public Summary can be found here.

Supreme Court Denies ACCG's Petition for Certiorari

On Feb. 19, 2019, the Supreme Court denied the Ancient Coin Collectors Guild’s petition for certiorari. See https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/18-767.html

That petition asked the Court to review the Fourth Circuit’s decision that treats import restrictions on ancient Cypriot and Chinese coins under the Cultural Property Implementation Act (CPIA) as embargoes. The Guild had argued the plain meaning of the statute and the Guild’s Fifth Amendment Takings and Due Process rights require the CPIA to be read to only apply to coins of types on designated lists proven to be illicitly exported from Cyprus or China after the effective date of government regulations. The Fourth Circuit instead approved the forfeiture of Cypriot and Chinese coins of types on designated lists imported into the United States after the effective date of the applicable regulations, i.e., an embargo of all coins of restricted types rather than targeted, prospective import restrictions that do not impact the purchase of coins from the legitimate marketplace abroad.

Denials of certiorari have no precedential value. The Fourth Circuit’s opinion is only binding within its jurisdiction (Maryland, Virginia, West Virginia, North and South Carolina). Nevertheless, the decision will likely be cited as precedent elsewhere, and the archaeological lobby and the US cultural bureaucracy will likely pitch it as approving broad executive authority in the area.

CPO finds it frustrating that broad declarations of executive authority that find little support in statutory language and raise constitutional concerns only seem to provoke public outrage and judicial scrutiny selectively.  That in turn also raises the fundamental question whether Fifth Amendment Takings and Due Process rights are as jealously guarded today as other constitutional rights.  Or, maybe this is just another example where private property rights-- which were of great importance to the "Founding Fathers" -- are being eroded further without much notice from the general public and the media. 

Public Consultation on Proposed Changes to UK's Treasure Act

The UK Government is considering changes to the Treasure Act.   Collector based organizations have supported the Treasure Act because it encourages the reporting of finds.  It also ensures the State pays fair market value for finds it keeps and remits back all others to the finder, who may sell them on the open market.  The coins that are recorded are then uploaded on a publicly accessible website.   This has led to the availability of coins on the numismatic market that can be identified as coming from specific, UK find-spots and hoards. 

 Most of the proposed changes appear non-controversial, but certain of the proposals that require permits to metal detect, that create a new offense for purchases of undeclared artifacts, and declare archaeological finds Crown Property, are potentially very problematic. 

 A permit requirement could be used to preclude detecting from “archaeologically sensitive areas,” which could mean everything.

 The proposed new criminal sanction could catch unwary buyers of objects that did not realize they were buying "treasure."  Moreover, collectors should oppose the proposal's efforts to shift the burden of proof in a criminal matter.

 Declaring all finds crown property may be a way to avoid paying fair market value for finds the State retains.

If you are a metal detectorist, an ancient coin collector, or just think the UK's current PAS and Treasure Act do a great job of bringing the public, museums and archaeologists together in a joint effort to record and preserve the past, please consider commenting.

 

Comments are due on or before April 30, 2019.

 

For more about the issue, see https://culturalpropertynews.org/uk-changes-treasure-act/

 

For a direct link to the consultation, see https://www.gov.uk/government/consultations/revising-the-definition-of-treasure-in-the-treasure-act-1996-and-revising-the-related-codes-of-practice

ACCG's Petition for Certiorari to be Considered at Supreme Court's 2/15/19 Conference

The ACCG's petition for certiorari will be considered at the Supreme Court's 2/15/19 conference. The Guild has asked the Supreme Court to keep the burden of proof as to CPIA forfeitures of cultural goods on the government, where it belongs. For more, see https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/18-767.html