Tuesday, April 2, 2019

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. 

Monday, April 1, 2019

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.

Wednesday, March 13, 2019

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.

Tuesday, February 19, 2019

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. 

Monday, February 4, 2019

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

Wednesday, January 23, 2019

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