My Comments to CPAC re Honduran MOU Renewal

Here are my self-explanatory comments to CPAC regarding the proposed renewal of a MOU with Honduras.  They relate to the need for greater transparency and concerns about the "culture creep" that has resulted from overbroad readings of statutory authority:

October 7, 2013 

VIA Regulations.gov Portal

Prof. Patty Gerstenblith, Chair

Cultural Property Advisory Committee

Cultural Heritage Center (ECA/P/C)

U.S. Department of State
2200 C Street, NW Washington, DC  20037

Re:      Meeting of the Cultural Property Advisory Committee (CPAC) Regarding Proposed Renewal of the Memorandum of Understanding (MOU) with Honduras

Dear Prof. Gerstenblith:   

            Thank you for this opportunity to comment on the proposed renewal of the Memorandum of Understanding (MOU) with Honduras. Although I collect no Honduran material and have no specialized knowledge or interest in cultural goods from the area, I am concerned about the “culture creep” that has marked recent decisions to impose import restrictions on ever more categories of artifacts, with little, if any, attention to their cultural significance.  It is for that reason that I am commenting on this proposed extension as a citizen concerned about how the State Department exercises its statutory authority under the Convention on Cultural Property Implementation Act (“CPIA”).

            Here, I understand that the State Department is considering expanding the current MOU that covers Pre-Columbian archaeological objects to now include Colonial and Republican era cultural goods under the theory that they are “ethnological objects.”  In that regard, as a preliminary matter, it would be helpful to both CPAC and the public if the State Department would provide more detail. Without more information about the types of material being considered for restriction and any justification for doing so, it is difficult for the public to comment intelligently on the subject, which, of course, should be the point of this exercise.

            In any event, my fundamental concern is the prospect of an expansion of import restrictions based upon an overbroad construction of the term “ethnological object.”  In that regard, please note that the term has already been defined by Congress.   According to CPIA, 19 U.S.C. § 2601 (2) (C) (ii),

no object may be considered to be an object of ethnological interest unless such object is -- (I) the product of a tribal or nonindustrial society, and (II) important to the cultural heritage of a people because of its distinctive characteristics, comparative rarity, or its contribution to the knowledge of the origins, development, or history of that people.

            Furthermore, according to the CPIA’s legislative history, “the [Senate] committee intends this definition, to encompass only what is sometimes termed “primitive” or “tribal” art, such as masks, idols, or totem poles, produced by tribal societies in Africa and South America.  Such artifacts must be important to cultural heritage by possessing characteristics which distinguish them from other objects in the same category providing particular insights into the origins and history of a people.  The committee does not intend the definition of ethnological materials under this title to apply to trinkets or other objects that are common or repetitive or essentially alike in material design, color, or other outstanding characteristics with other objects of the same type, or which have relatively little value for understanding the origins or or history of a particular people or society.”   U.S. Senate Report on the CPIA (Sept. 8, 1982) at 5.

            Given this limitation on the State Department’s authority, I would respectfully urge that CPAC scrutinize any proposed designated list of ethnological objects from the Colonial and Republican period of Honduran history to ensure that it meets Congress’s stringent definition.  Thank you for your consideration of this matter.

Sincerely,

Peter K. Tompa

Pearlstein on Cultural Property

Cultural property expert Bill Pearlstein wrote a letter to the editor of Commentary Magazine about a review of Jim Cuno's new book. The letter was published in the December issue. Pearlstein rightly suggests that judgments about "who owns the past" should be made on a principled, analytical basis, rather than on one based on the ideology of nationalism or an "archaeology over all" perspective. Here is an excerpt:

[T]he ownership of the objects is what is currently at stake as American museums and collectors defend their collections against legal claims to return "looted" objects and fuzzier claims that ancient objects are best appreciated in their country of origin. The former are understandable and sometimes meritorious; the latter are not. Cuno has rightly disputed the received wisdom that source-nation "patrimony laws" discourage looting and help disseminate archaeological data. Such laws are merely nationalist in intent and effect, and any overlap between cultural nationalism and archeological preservation is coincidental.

Which is not to say that looting is acceptable or that ownership of looted objects should be encouraged in the name of building "universal museums" or spreading culture. Instead, an international legal framework should be created that gives due weight to persuasive national-heritage claims, protecting archeological sites, and promoting the international exchange of cultural objects by way of museum loans and private trade. (The role of private collectors here is as important as that of museum curators and the museum-going public.)

As a lawyer for private clients, I argued at a 2005 hearing of the President's Cultural Property Advisory committee against China's request for U.S. import restrictions on all Chinese cultural objects dating from pre-historic times to 1911. Cuno was one of three museum curators who also spoke against the restrictions, which a journalist rightly characterized as a "gross overreach" motivated by Beijing's desire to corner the booming market for Chinese artifacts.

One of the major auction houses suggested to the committee that the question of restriction should be evaluated in light of the following factors related to a given object: the quality and state of the existing archeological and art-historical record; site specificity, portability, and documentary importance; mass production and lack of rarity; frequent and long-term market incidence. This is a more thoughtful approach than simply banning everything old, and seems to be the best analytical model for deciding who should own the past.

Good Read: Thomas Laird's "The Story of Tibet"

I don't get to read "for fun" as much as I would like to. One good thing about train trips is that as long as there is no work that needs to be done, it is a good time to read a good book. Thomas Laird's "The Story of Tibet: Conversations with the Dalai Lama" is such a good book.

Through Laird's interviews, the Dalai Lama himself recounts Tibetan history. That history unfolds as an expression of the Buddhist version of "Divine Provenance." Along the way, one learns about the long alliance between the Mongols and Tibetans. One can easily imagine that long memories about Mongol subjugation of the Chinese perhaps helps explain China's uncompromising efforts to subjugate Tibet. China may have lost out on controlling much of the Mongolian homeland based on Russian support for the Mongols in the 1920's, but Tibet lacked strong foreign support against the Chinese invasion in 1951. At the time, world powers most likely to help were busy fighting off China's efforts to dominate the far more strategic Korean Peninsula.

For those interested in cultural property issues, the book provides a stark record of China's efforts to destroy Tibetan culture by destroying most of its monasteries and temples along with thousands and thousands of ancient religious artifacts. The Dalai Lama himself recounts a particularly poignant story:

The Dalai Lama said, " A large clay statue of Chenrizi [a Buddhist savior for Tibet] was made in Jokhang [the site of the first and most important Buddhist Temple in Tibet], and that wood statue of Buddha from Nepal [associated with an early Tibetan king, Songzen Gampo] was put inside the bigger one." These two statues, a tiny wooden one nested in the larger clay one, sat in the Jokhang undisturbed for thirteen hundred years... "The large statue, like nearly all of those in the Jokhang, were destroyed during the Cultural Revolution. When they destroyed the larger clay statue, they found the small wooden statue at the center. Some Tibetan kept it after the larger one was destroyed and then sent it to me, which is very good."

Laird, supra, at 40. No wonder the Dalai Lama himself has praised Western collectors for their efforts to help preserve Tibet's past. Why, then, have members of the archaeological community supported China's efforts to seek import restrictions on virtually all Chinese archaeological and ethnological items, including those from Tibet? Could it be that the prospect of cooperation with Chinese archaeologists silences any inclination to speak out? If so, such archaeologists are little different than many of the "foreign policy experts" that appear in the media. Id. at 365-66. Laird reports that the Central Committee of the Chinese Communist Party stressed that one of the main targets for its external propaganda were foreign experts as "propaganda created by foreigners is more powerful" than propaganda produced by Chinese. Id. at 366. I suspect the same can be said for the efforts of some members of the archaeological community to plead China's case for control over Tibetan cultural artifacts reaching this country.

"Emergency" Iraqi Restrictions-- Dry Run for Upcoming Chinese Restrictions?

The breadth of the "emergency restrictions" on Iraqi cultural artifacts reminds me of the breadth of the still-pending request for import restrictions on Chinese cultural artifacts. The State Department has reported that the Chinese request includes material dating from pre-historic times to the end of the Chinese Empire, circa 1911:

As the State Department explains,

"The People's Republic of China seeks import restrictions on categories of pillaged archaeological material from the Paleolithic Period to Qing Dynasty including, but not limited to:

Metals - bronze, gold, and silver vessels, sculpture, utensils, jewelry, coins, weapons, and armor
Ceramic - stoneware and porcelain vessels, sculpture, jewelry and architectural elements
Stone - vessels, sculpture, weapons, utensils, jewelry, architectural elements
Painting and calligraphy - on wood, paper, silk, stone, fresco
Textiles - silk clothing, hangings, furnishings
Lacquer, bone, ivory and horn objects, including inscribed materials
Wood and bamboo objects, including inscribed objects"

See: http://exchanges.state.gov/culprop/cn04sum.html

It seems to me that the State Department may seek to use the Iraqi "emergency" restrictions as precedent to extend import restrictions to virtually any cultural artifact from virtually any era from virtually any state that requests it. Given the inclusion of 20th c. paintings on the Iraqi "designated list," it does not even appear that the State Department feels constrained by the CPIA's definitions of "archaeological" and "ethnological artifacts" in deciding to impose import restrictions.

The United States only agreed to the 1970 UNESCO Convention with the proviso that it would retain its "independent judgment" to decide the extent to which it would impose import restrictions at the behest of foreign states. Early on, import restrictions were only applied against a limited number of artifacts from a limited number of mostly poor, third world countries that had difficulty policing their borders. Now even rich EU countries like Cyprus and Italy have benefitted from US restrictions even as they categorically refuse to undertake "self-help" measures like passing "Treasure Trove" laws. At the same time, restrictions have been imposed on more and more types of artifacts from more and eras, up to and including the 20th c. Unfortunately, there appears to be no end to such "culture creep" in sight.