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

Has State and CBP Exceeded Their Authority in Imposing Import Restrictions on Ecclesiastical Artifacts?

The CPIA only allows for restrictions on archaeological or ethnological artifacts.   The latter are defined as the products of tribal or nonindustrial societies.  19 U.S.C. Section 2601 (2) (C) (ii).  The Senate Report further makes clear that ethnological artifacts are only supposed to encompass "tribal" or "primitive art," such as masks, idols or totem poles.  (Senate Report at 5.)

The recently announced expansion of Guatamalen import restrictions thus once again raises the question whether State and CBP have exceeded their authority, this time by adding restrictions on ecclesiastical artifacts that date as late as 1821.  Here is a list of the newly restricted artifacts.  Can State and CBP fairly claim they encompass "tribal" or "primitive" art?

Ecclesiastical Ethnological Material (Dating From Approximately A.D. 1524 to 1821)


VI. Sculpture—Sculptural images of scenes or figures, carved in wood andusually painted, relating to ecclesiastical themes, such as the Virgin Mary, saints,angels, Christ, and others.

A. Relief Sculptures—circular-shaped, low-relief plaques, often polychrome wood, relating to ecclesiastical themes.

B. Sculpted Figures—wood carvings of figures relating to ecclesiastical themes, often with moveable limbs, usually with polychrome painting of skin and features; clothing might be sculpted and painted, or actual fabric clothing might be added.

C. Life-Sized Sculptures—full figure wood carvings of figures relating to ecclesiastical themes, often with polychrome painting using the estofado technique, and occasionally embellished with metal objects such as halos, aureoles, and staves.

VII. Painting—paintings illustrating figures, narratives, and events relating to ecclesiastical themes, usually done in oil on wood, metal, walls, or canvas (linen, jute, or cotton).

A. Easel Paintings—pictorial works relating to ecclesiastical themes on wood, metal, or cloth (framed or applied directly to structural walls).

B. Mural Paintings—pictorial works, executed directly on structural walls, relating to ecclesiastical themes.

VIII. Metal—ritual objects for ceremonial ecclesiastical use made of gold, silver, or other metal, including monstrances, lecterns, chalices, censers, candlesticks, crucifixes, crosses, and tabernacles; and objects used to dress sculptures, such as crowns, halos, and aureoles, among others.