Summary of January 25, 2022, Cultural Property Advisory Committee Meeting to Discuss Proposed Renewals and Amendments of MOUs with Cyprus and Mali and a Proposed Renewal of a MOU with Guatemala

                 On January 25, 2022, the US Cultural Property Advisory Committee (CPAC) met to consider proposed renewals and amendments of MOUs with Cyprus and Mali and a proposed renewal of a MOU with Guatemala.  CPAC carried over a discussion of the Cypriot renewal from its October 5, 2021, meeting.  The following members were present: (1) Stefan Passantino (Chairman- Public); (2) Steven Bledsoe (Public); (3) Karol Wight (Museums); (4) J.D. Demming (Public); (5) Ricardo St. Hilaire (Archaeology); (6) Joan Connelly (Archaeology); Rachael Fulton Brown (Archaeology?); (7) Anthony Wisniewski (Collector-Sale of International Cultural Property); (8) Mark Hendricks (Sale of International Cultural Property); and (9) David Tamasi (International Sale of Cultural Property).  Allison Davis, CPAC’s State Department Executive Director, and Michele Prior, also of ECA, were also present.

                Chairman Passantino welcomed the speakers.  He apologized for starting late due to some technical difficulties.  He indicated that the Committee had read all the comments, and speakers could only be allotted 4 minutes time given the busy schedule.  The speakers would be divided up according to subject matter.  The Chair also reserved a short amount of time for questions.

                The following speakers addressed the Committee on Mali: (1) Kathleen Bickford Berzock (Mary and Leigh Block Museum of Art, Northwestern University); (2) Kate FitzGibbon (Committee for Cultural Policy and Global Heritage Alliance); (3) Susan McIntosh (Rice University). Barbara Arroyo (Society for American Archaeology) addressed the Committee about Guatemala.   The following speakers spoke specifically about import restrictions on coins: (1) Peter Tompa (Peter Tompa Law representing the International Association of Professional Numismatists (IAPN)); (2) Robert Leonard (private collector); and (3) Randy Myers (Ancient Coin Collectors Guild (ACCG)).  The following speakers focused their comments on Cyprus: (1) Andrew McCarthy (College of Southern Nevada); (2) Josh Knerly (Hahn Loeser representing Association of Art Museum Directors (AAMD); (3) Helena Aroz (HA) (Antiquities Coalition); (4) Lindy Crewe(Cyprus American Archaeological Research Institute (CAARI); and (5) Dr. Despina Pilides (former Curator of Antiquities, Cypriot Department of Antiquities).  The following speakers covered all the MOUs at issue: (1) Dr. Brian Daniels (Archaeological Institute of America); and (2) Dr. Marlene Losier (ML) (Losier Gonz law firm).

                Kathleen Bickford Berzock (KBB) indicates that the Caravans of Gold exhibit demonstrates that Mali has engaged in cultural exchange.  KBB believes that Mali has done all it could to preserve its cultural patrimony despite political instability and the pandemic.

                Kate FitzGibbon (KFG) does not believe Mali has met any of the four determinations before import restrictions may be renewed.  There are minimal exports coming from Mali with only $691 of cultural goods being exported in 2019.  There is a concern with insufficient notice of any amendment.  The Federal Register indicates that the request only goes up to the mid-18th c. while the Cultural Heritage Center’s website suggests that restrictions up to the 1920’s will be considered.  Most of the Malian material on the market was exported during the French Colonial period.  Mali has failed to fund its cultural heritage sector.  MOUs should not be renewed over and over again if they are not making a difference.  Most of the effort to protect Malian cultural heritage seems to have been funded from abroad.  The US Government made a significant grant back in 2020.  We need to insist on better benchmarks before the MOU is renewed.  The real problem in Mali is political turmoil, most recently with a military coup.  There should also be safe haven given to Malian artifacts in the event of further armed conflict that could destroy cultural heritage.

                The Committee for Cultural Policy’s and Global Heritage Alliance’s papers can be found here:

Mali:  https://www.regulations.gov/comment/DOS-2021-0037-0027

Cyprus:  https://www.regulations.gov/comment/DOS-2021-0032-0077

Guatemala:  https://www.regulations.gov/comment/DOS-2021-0037-0021

                Susan McIntosh (SM) did not have time to submit written comments.  The MOU with Mali is necessary to reduce looting.  The Malian government has done what it can to protect its own cultural heritage by creating nine cultural missions.  These formerly had been funded by taxes on tourists who are now scarce due to Covid and political instability.  Despite the lack of taxes, the Malian government has still funded this effort to the best of its ability.  Looting remains a problem at least with lower value material.

                Barbara Arroyo (BA) supports renewal of the MOU with Guatemala.  The MOU is important to stem criminal activities.  Most of the problems occur where the government does not have adequate resources to protect cultural heritage.  There is an ongoing effort to work with the Catholic Church to document religious artifacts.  There is still a looting problem.  Recently, the US recovered 257 Guatemalan archaeological items.  US archaeologists have not only funded digs, but the training of Guatemalan archaeologists. 

                The Society for American Archaeology’s papers can be found here:

https://www.regulations.gov/comment/DOS-2021-0037-0028

                Peter Tompa (PT) noted that there were no import restrictions on coins for 25 years after the CPIA was passed into law.  This is not surprising as coins are items of commerce, and while they may be of “archaeological interest,” they are not generally of “cultural significance.”  In 2007, this changed under questionable circumstances that raise fairness questions.  Coin collectors are realists and recognize such import restrictions are here to stay, but a reset is warranted in how they are implemented.  First, to be consistent with the Cultural Property Implementation Act (“CPIA”), restrictions should only be placed on coins that are exclusively or actually found in Cyprus.  The State Department’s current standard, based on where a coin “primarily circulated” simply ignores the statutory requirements.  Second, even if this standard is utilized, all Cypriot mint gold coins and Cypriot mint coins of Alexander the Great and his immediate successors struck on an Attic weight standard should be delisted based on hoard evidence.  Third, the State Department should only utilize neutral experts to prepare designated lists and meet and confer with the trade and collectors about such lists.  Under no circumstances should collectors have to guess what coins are restricted and which are not restricted.  Finally, there should be no restrictions on Spanish Colonial and Republican era coins from Guatemalan mints.  These coins either do not meet the 250-year-old threshold for archaeological objects or are not normally discovered on the ground.  They are not ethnological objects because they are not the products of tribal cultures but what were for the time sophisticated industrial processes.  Moreover, one cannot assume they are found in Guatemala because they travelled widely in international commerce and even served as legal tender in the United States until 1857. 

                PT’s oral comments can be found here:  http://culturalpropertyobserver.blogspot.com/2022/01/comments-from-todays-cpac-hearing-its.html

                IAPN’s written comments can be found here:

Cyprus:  https://www.regulations.gov/comment/DOS-2021-0032-0038

Cyprus Supplemental:  https://www.regulations.gov/comment/DOS-2021-0037-0015

Guatemala:  https://www.regulations.gov/comment/DOS-2021-0037-0009

                Robert Leonard (RL) states that import restrictions should not be extended to Crusader era coins.  Examination of the actual object is essential for proper scholarship, and import blockages will harm the study of medieval Cypriot numismatics in the United States.  Such coins were well known to Italian merchants.  The hoard evidence presented proves that they circulated outside of Cyprus in quantity.  Legitimate Cypriot dealers only sell Cypriot coins imported from abroad.  Import restrictions only hurt American collectors buying such coins from third countries.  It makes absolutely no sense to restrict Guatemalan coins because that would be restricting what were legal tender in the United States. 

                RL’s written testimony can be found here: 

https://www.regulations.gov/comment/DOS-2021-0037-0002

                Randy Myers (RM) wants to focus his comments on behalf of the ACCG on one procedural and one substantive issue.  Procedurally, the Federal Register notice fails to indicate specifically that there will be an effort to amend the Cypriot MOU to include more coins.  This does not provide sufficient notice to allow collectors to comment. Substantively, there is no indication that less drastic measures have been considered before import restrictions have been imposed on coins.  One such less drastic measure would be for Cyprus to adopt a program akin to the Treasure Act and Portable Antiquities Scheme.  This program requires coins that are found to be reported so they can be recorded and gives the State a right of first refusal over coins for a payment of fair market value.  CPAC should also recommend that the State Department honor export permits from fellow EU members for imports of Cypriot coins.

                The ACCG’s written testimony can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0025

                Andrew McCarthy (AM) states that MOUs are a crucial tool.  Coins should be included because how is he supposed to know if a coin on the market was stolen from his archaeological site unless the burden of proof is placed on collectors to provide a provenance for it.  McCarthy hopes the MOU will be expanded to include both very early material as well as a rolling date for material over 100 years old.  Early settlements have been looted for paleolithic tools.  Archaeological remains of a famous bandit dating from the early 20^th century should also be protected. 

                Josh Knerly (JK) focuses on the fourth determination that asks if the application of import restrictions is consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural and educational purposes.  He notes that this provision contemplates collaboration far broader than that related to the exchange of archaeological and ethnological material because “cultural property” is far more broadly defined in the CPIA and UNESCO Convention.  He also notes that the boilerplate Article II placed in the current Cypriot MOU fails to set forth specific criteria to facilitate such cultural exchange.  The same issues arise with regard to the MOUs with Guatemala and Mali.  There is a separate “action plan” for Mali which addresses these issues to some extent, but JK questions whether the State Department will allow CPAC to make recommendations to modify it in an effort to stimulate cultural exchange.

                The AAMD’s written testimony on Cyprus can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0105

                Helena Aroz (HA) viewed the 2016 CPAC proceedings on Cyprus.  MOUs are important in combatting looting and benefit collectors and dealers by keeping looted material off the market.  They complement widely held ethical guidelines.  HA also had the opportunity to excavate in Cyprus where she saw firsthand that looting leads to the loss of important information.  She also had excellent interchanges with the Cypriot people and remembers fondly being invited to attend local weddings.  MOUs are also important in fostering cultural exchange. 

                The Antiquity Coalition’s paper on Cyprus can be found here:

https://www.regulations.gov/comment/DOS-2021-0032-0080

                Lindy Crewe (LC) speaks about CAARI’s efforts as the only on-site American archaeological organization in Cyprus.  CAARI hosts both US scholars and US tourists. It has hosted Fulbright scholars and interacts with the 17 US archaeological digs on Cyprus.  There have been major advances in the study of Byzantine and Colonial era archaeology which also deserves protection.  Looting has also impacted the ability to study DNA when cemeteries are disturbed.    

                Dr. Despina Pilides (DP) strongly supports the MOU.  She previously was the curator for the Department of Antiquities in charge of museums.  She also worked on archaeological digs and has been a Chair of ICOM, the International Council of Museums.  A study indicates that one-half of the Byzantine material that was left in the Turkish occupied zone remains missing.  There needs to be strong protections for Byzantine and Ottoman era artifacts.  There has been an effort to digitize Byzantine era artifacts from the Turkish zone that are in the museum at Nicosia.  Coins are important for Cypriot history and should be protected to help protect the context in which they are found. 

                DP’s written testimony can be found here:

https://www.regulations.gov/comment/DOS-2021-0037-0014

                Dr. Brian Daniels (BD) mentions that the AIA has over 200,000 members [the vast majority of this number are individuals who subscribe to Archaeology Magazine].  The AIA supports renewals of MOUS with Mali, Cyprus and Guatemala.  Import restrictions are an important tool in discouraging looting of archaeological sites. The MOU with Cyprus should be made consistent with that of Greece and Turkey regarding what coins should be covered.  There have been long term loans of objects provided by Cyprus, Guatemala and Mali.  Mali in particular has done what it can despite political turmoil.

                The AIA’s papers can be found here:

https://www.regulations.gov/comment/DOS-2021-0037-0025

                Dr. Marlene Losier (ML) supports renewals and expansion of import restrictions to new categories as part of a “progressive view” of the development of the law.  By entering into such MOUs we encourage other countries to protect our own heritage both abroad and even in space like the Apollo 11 landing site.

                Chairman Passantino then allowed CPAC members a brief time for questions.

                Anthony Wisniewski observed that most of the oral and written testimony reflected the opinions of the speakers.  He also noted that CPAC cannot apply a “progressive view of the law” because it is obliged to apply Congressional statutes as written.  He notes that coin collectors have produced information from third party academic sources that by their nature have a much higher degree of reliability than the arguments of the participants.  He asks PT if he agrees with the statement that those sources show that over 95% of the Cypriot mint coins of Alexander the Great are found outside of Cyprus.  PT agrees.  He then indicates this carries a burden on this point which has not been contested by proponents of the restrictions. 

                Joan Connelly asks DP about the digitization of collections.  DP says some 96,000 objects have been digitized.  There has been a special effort to digitize items in the Nicosia Museum that come from the occupied North of Cyprus.  She then reiterates the importance of coins.

                Karol Wight asks JK about Cyprus’ lack of an immunity from seizure law.  JK indicates such a law patterned on those of other EU countries would help facilitate loans. 

                Chairman Passantino then thanked the speakers and CPAC went into a recess for lunch before reconvening. 

                Some additional testimony on the Cypriot renewal can be found in this summary of CPAC’s October 5, 2021, meeting:  http://culturalpropertyobserver.blogspot.com/2021/10/summary-of-october-5-2021-cultural.html  

State Department reopens record for renewal and possible amendment of the current MOU with Cyprus; Renewals of MOUs with Guatemala and Mali also to be discussed.

The State Department's Bureau of Educational and Cultural Affairs and its Cultural Heritage Center have provided public notice of a Cultural Property Advisory Committee meeting on January 25 and 26 to discuss a renewal of a MOU with Guatemala, and renewals and possible amendments of current MOUs with Cyprus and Mali.  The public notice can be found here. A direct link to comment can be found here.  It is important that any comments be received before the January 18, 2021 11:59 PM deadline. That is also the deadline to inform the Cultural Heritage Center if you want to speak at the hearing. 

The renewal and possible amendment of the MOU with Cyprus was to be discussed last October, but consideration of the request was bumped to CPAC's January meeting given a last minute addition of proposed "emergency import restrictions" on behalf of Afghanistan being placed on the docket.  CPO has covered the CPAC public meeting that discussed that absurd request that will only benefit the Taliban regime here.  At this juncture, we have not heard one way or the other whether the State Department will actually go through with authorizing such import restrictions that would claw back Afghan heritage imported from legitimate markets in Europe just so it can be handed over to the iconoclasts who blew up the Bamiyan Buddhas and smashed many of the statues in the Kabul Museum. 

In any case, that report also includes links to papers submitted by the ACCG, IAPN, and Alan Berman about the proposal to extend and amend the Cypriot MOU.  Collectors of Byzantine, Crusader and Turkish coins should beware; it is likely that this renewal will be used as a vehicle to amend current restrictions on Archaic, Classical, Hellenistic, and Roman Provincial coins minted in Cyprus to include such later issues.   

Please consider commenting if you failed to do so back in September because silence will be spun as acquiescence.  A guide on the request and what to say can be found here.  Those of you who also collect Latin American coinage should also consider commenting on the Guatemalan request.  The issues there are similar to those raised with regard to MOUs with other Latin American countries.  As described in  IAPN's paper about last year's Peruvian request, Spanish Colonial and Republican era coinage of Latin American countries simply fail to meet the threshold criteria for archaeological or ethnological objects.  Spanish Colonial and Republican era coins cannot be considered archaeological objects because they are not normally discovered in the ground.  Nor can they be properly viewed as ethnological objects.  They are the products of what at the time were sophisticated industrial practices, not crafts of tribal societies.  Moreover, such coins circulated widely, including within the United States, where they were legal tender until 1857. 

On Mali, there are no numismatic issues as far as CPO can tell. Evidently, the people of Mali preferred to use salt as currency rather than coins.  The first Malian coins were not local, but French Colonial issues from the late 19th c, making Mali one of the few countries coin collectors at least have little to worry about. Or, maybe we all should be worried if the State Department embargoes Malian salt as cultural heritage and US Customs bans all salt imports because even trained customs inspectors cannot tell Malian from other types of salt.  Don't laugh!  Recently, "rope" became targets of such embargoes, although to be fair any rope shortage appears to be the result of pandemic related supply chain issues and not cultural property embargoes. 

Short Comment Period for Proposed MOUs with Belize, Guatemala and Mali

Regulations.gov is now accepting public comments for the Cultural Property Advisory Committee's review of proposed renewals of MOUs with Belize, Guatemala and Mali.  Simply click on the above link, read the background information and then click on the blue "Comment Now" button to make your views known.

Germany Helps Smuggle Manuscripts to Save Them

Germany has helped smuggle historic manuscripts from Timbuktu to save them from the clutches of Islamic radicals bent on their destruction. Was removing them from their context to save them justified?  Was Germany helping or interfering by supporting the effort?   I'd say an unqualified "yes" to the first question, and "helping" as to the second.  But what of UNESCO and the archaeological fanatics?  Do they support this effort or not?  I wonder.

Timbuktu Library Update

It looks like early Islamic manuscripts thought to have been burned by fleeing Islamic fanatics associated with an al-Qaeda offshoot  may not have been destroyed after all.  If so, this is welcome news, though the situation still seems rather bleak.

This also once again raises the larger question of whether the assumptions behind the US MOU with Mali (a state capable of being a good steward for its cultural resources) are faulty.  Certainly, even when renewal of Mali's MOU was being considered, there was no reason to consider Mali anything but a failed state incapable of undertaking its own obligations under the UNESCO Convention to protect its cultural patrimony.

As Islamic Fanatics Destroy Libraries, State Department and Customs Reauthorize Regulations Returning Cultural Property to Mali

Given the latest round of destruction--this time of Islamic books-- it would not seem to be the best time to reauthorize import restrictions that call for the repatriation of cultural artifacts to Mali.   But the US Cultural Bureaucracy at State and US Customs seems unmoved by the recent turmoil in the country, and they have just announced the renewal of the current restrictions on such artifacts which authorize their return to the country.  Is our cultural bureaucracy out of touch with reality?  Does it make sense to send back artifacts to Mali where they may end up just getting destroyed?

African Antiquities Under Threat

The New York Times has published a balanced piece about threats against African Art that have only increased since archaeologists have sought to ban the trade. The article asks whether all the emphasis on protecting “context” really help preserve the artifacts themselves or their study and appreciation.   One nit: the 1970 UNESCO Convention in itself did not ban the trade.

Archaeologists Ignore Implications of Timbuku's Destruction at the Hands of Islamic Militants

Islamic Militants linked to Al Qaeda have destroyed culturally significant Islamic religious sites in Timbuktu.  Back in April, CPO reported that a proposed renewal of the current MOU with Mali had already been overtaken by events on the ground and then concluded,

A recent military coup and the takeover of important cultural sites like Timbuktu by well armed Islamic rebels again raises fundamental questions about whether the State Department and its allies in the archaeological community are really furthering the protection of cultural artifacts or whether their knee-jerk repatriationism does more harm than good.

Yet, it would seem that this latest sad but predicatable news has so far at least been largely ignored by the same archaeological community that was so quick to press for the unqualified renewal of he MOU.   
It also remains to be seen what, if any, impact this news will have on the State Department's own decisionmaking.

Mali MOU Renewal Overtaken By Events?

With one exception, no MOU restricting imports of cultural goods has ever been allowed to expire.

Yet, the assumption behind MOU's -- that the US should help State Parties to the UNESCO Convention control cultural goods found within their borders because nation states are the best protectors of their own cultural patrimony-- has been sorely tested, first by the economic meltdowns in Greece and Italy, and now even more clearly by the descent of Mali into chaos.

A recent military coup and the take over of important cultural sites like Timbuktu by well armed Islamic rebels again raises fundamental questions about whether the State Department and its allies in the archaeological community are really furthering the protection of cultural artifacts or whether their knee-jerk repatriationism does more harm than good.

For more on the situation in Mali, see http://www.nytimes.com/2012/04/03/world/africa/rebels-take-timbuktu-in-mali.html

To read the arguments for renewing the MOU wiht Mali, see
http://www.regulations.gov/#!docketDetail;dct=O%252BSR%252BPS;rpp=25;po=0;D=DOS-2012-0012

On April 24, 2012, CPAC will conduct a public hearing that will discuss the proposed renewal of the MOU with Mali.

CPAC To Meet

The Federal Register reports that the Cultural Property Advisory Committee will meet to discuss renewals of current MOU's with Guatemala and Mali, and to conduct further discussion in secret about a request from Bulgaria. See http://www.ofr.gov/(S(mb4uyziobevezdhmm1qt4oyc))/OFRUpload/OFRData/2012-05909_PI.pdf

Archaeo-blogger Rick St. Hilaire's post about the upcoming meeting seeks to portray the secrecy and culture creep that has marked the Bureau of Educational and Cultural Affairs'administration of the CPIA as both necessary and consistent with the statutory mandate. See http://culturalheritagelawyer.blogspot.com/2012/03/mali-guatemala-and-bulgaria-up-for.html

However, others-- including several former CPAC members-- have questioned this, most recently during a public forum on Capitol Hill. See http://culturalpropertyobserver.blogspot.com/2011/03/cultural-property-implementation-act-is.html

CPAC Meetings on Bolivia, Guatemala and Mali

The State Department has announced CPAC review of the MOU's with Bolivia, Guatemala and Mali. See http://www.gpo.gov/fdsys/pkg/FR-2011-06-02/html/2011-13693.htm

According to the notice,

During its meeting on Monday, June 27, the Committee will begin its review of a proposal to extend the Memorandum of Understanding Between the Government of the United States of America and the Government of the Republic of Bolivia Concerning the Imposition of Import Restrictions on Archaeological Material from the Pre-Columbian Cultures and Certain Ethnological Material from the Colonial and Republican
Periods of Bolivia [Docket No. DOS-2011-0092]. An open session to receive oral public comment on this proposal to extend will be held from 10 a.m. to 11 a.m.

On Tuesday, June 28, the Committee will conduct interim reviews of the Memorandum of Understanding Between the Government of the United States of America and the Government of the Republic of Guatemala Concerning the Imposition of Import Restrictions on Archaeological Objects and Materials from the Pre-Columbian Cultures of Guatemala, and of the Agreement Between the Government of the United States of America and the Government of the Republic of Mali Concerning the Imposition of import Restrictions on Archaeological Material from Mali from the Paleolithic Era (Stone Age) to approximately the Mid-Eighteenth Century. Public comment, oral and written, will be invited at a time in the future should these MOUs be proposed for extension.

This continues the anti-transparency trend at the State Department Bureau of Educational and Cultural Affairs. The public is no longer welcome to provide testimony on whether a source country is living up to its side of an MOU during an interim review hearing. Instead, comments are only welcome at the very end of the process-- when the train has almost arrived at the station.....

Not that anyone really believes that the State Department holds source countries to their promises to secure such MOU's. If they did, its doubtful many of the MOU's would continue to be extended and even expanded time and time again.