Sunday, October 28, 2012

The Obama Record for Collectors: Not a Good One

President Obama's reelection efforts will not rise or fall on his Administration's position on ancient coin collecting, but his record on cultural patrimony issues is worth recounting because of the stark contrast between the Administration's rhetoric and the dismal reality of its actions.

Transparency-  The rhetoric:  President Obama promised that his Administration would be the most transparent in history.   The reality:  The Obama State Department has refused to release the most basic information about its decision making on import restrictions on cultural goods.  Moreover, the Administration has started closing interim reviews of MOUs.  This contrasts with the practice of the Bush Administration, which allowed the public to comment at CPAC meetings whether Italy and Cyprus had met their own obligations under MOU's.  For now at least, the public can still comment before MOU's are renewed.

Overregulation of Small Business:  The rhetoric:  The President claims to be against overregulating small business.  The reality:   The Obama Administration has extended difficult to comply with import restrictions to Greek and Roman coins from Italy and Greece (the heart of the ancient coin market), and will likely add Bulgarian coins to the list soon as well.   In so doing, the Administration has ignored multiple requests for meetings to discuss compliance issues from different coin groups, has offered only condescending responses to bipartisan Congressional inquiries (including one coordinated from the office of Republican VP Candidate Congressman Ryan), and has packed CPAC with academics with little sympathy for such concerns.

China:  The rhetoric:  The President claims he will be tough on Chinese "cheating."  The reality:  The Obama State Department has closed a CPAC meeting to discuss the interim review of the Chinese MOU.  CPAC should be discussing how import restrictions have done little but empower Chinese auction houses linked to the country's ruling elite, but the State Department will instead likely take advantage of this secrecy to spoon feed CPAC a wildly different version of whether import restrictions have been successful.

Thursday, October 25, 2012

Fourth Circuit Affirms Dismissal of Test Case

The Court of Appeals for the Fourth Circuit has affirmed Judge Blake’s decision dismissing ACCG’s test case on Cypriot and Chinese import restrictions on coins. Although the Court conceded that the Guild’s arguments, “are not without a point,” the Court concluded any changes to how the State Department and US Customs administers the Convention on Cultural Property Implementation Act must emanate from Congress and the Executive Branch and not the Courts. Nonetheless, the Court of Appeals indicated that ACCG could still pursue various forfeiture defenses related to the seizure of the specific coins it imported. The ACCG is considering further appellate options afforded under the Court’s rules.

Thursday, October 11, 2012

Renewed Motion to Dismiss in Dinosaur Forfeiture Case

In response to the Government's Amended Complaint, my firm, Bailey & Ehrenberg PLLC along with Michael McCullough LLC, have filed a renewed motion to dismiss.  The legal basis for the motion is addressed in this supporting memorandum.    Pursuant to the Court's September 7, 2012 order, the Government's response is due on or before October 19, 2012 and any reply is due on or before October 30, 2012.

Update (10/17/12):  Here is a balanced article on the Government's unfortunate effort to convert this civil action into a criminal one.

Update (10/23/12):  Here is our reply brief in support of Claimant's Motion to Dismiss.

Wednesday, October 10, 2012

More Criticism for Turkey's Repatriation Claims

The the Guardian has now joined the chorus of criticism for Turkey's recent over broad repatriation claims.  As the article notes,

The Turkish economy has come down from the vertiginous heights of 2010 and 2011, when annual growth exceeded 8%, but the country remains one of the only economic winners of the past few years – Turkey is ready to play in the big time. It's already at the top table of geopolitics (the G20) and defense (Nato). Its failure to get into the EU now looks like a blessing in disguise. Its retaliation against Syria this past week marks not only its military might, but also US and EU dependence on Turkey in a region changing too fast for western diplomats to handle. And now, naturally, Turkey wants to make their mark in the cultural sphere as well.

"Artifacts have souls and historical memories," according to Ertugrul Gunay, Turkey's pugnacious culture minister. "When they are repatriated to their countries, the balance of nature will be restored."

That nationalistic statement puts Turkey in the vanguard of a troubling tendency, one seen everywhere from Israel to China: that the nation state has an infinite claim to a cultural heritage that may date back thousands of years before the state's foundation. Gunay's appeal to the "balance of nature" is telling. He conceives of the nation state as something organic, an unchanging territorial bond, rather than a relatively recent phenomenon in world history.

It's worth recalling that the Turks, or at least their historical ancestors, were involved in the hottest cultural property dispute of them all. The tussle over the Elgin Marbles, in the British Museum, is usually seen as an Anglo-Greek affair. But of course, it was the Ottoman Empire that took Elgin's money, and it's Ottoman documents that, so say the Brits, prove the legality of Elgin's "purchase" (more like bribe).

But that case only highlights that when it comes to cultural restitution, national boundaries are not very helpful guides. Cultures are not ahistorical and immutable. They change all the time. And they certainly don't line up easily with the borders on our maps, to say nothing of the governments that delimit them.

Despite these sentiments against the repatriation of artifacts that left Turkey before 1970, the article expresses support for the MET's decision to repatriate the so-called Lydian hoard, despite the fact that far fewer individuals have seen the artifacts in a small provincial museum in Turkey than could have seen them at the MET.   The article fails to mention that some of the major pieces from this collection were evidently stolen from the Turkish museum and replaced with fakes.  Perhaps, where the artifacts can be best be curated, preserved and displayed should also be considered.

Tuesday, October 9, 2012

Should the Shultz Conviction Be Vacated?

In order to convict Fred Shultz of theft of Egyptian cultural property, the Government put on testimony that Egyptian Law 117 of 1983 unequivocally asserted state ownership of all antiquities and that private ownership, possession and disposal of such antiquities was prohibited.  See United States v. Shultz, 178 F. Supp. 2d 445 (S.D.N.Y. 2002).

Now that the Mubarak regime has fallen, however, an Egyptian academic has asserted that  Mubarak, along with his predecessors, gave antiquities from the Egyptian museum away as gifts.  Arguably then, because Fred Shultz's conviction was based on incomplete-- if not false testimony-- from Egyptian officials, in the interests of justice it should be vacated.

Interestingly, while Egyptian cultural authorities deny artifacts were gifted by President Mubarak, they do admit that antiquities were gifted before that time.

If so, shouldn't this news also support the dismissal of the Government's case against SLAM because it indeed shows the possibility that artifacts owned by the Egyptian government were gifted in the past?

Monday, October 8, 2012

Museum of Fine Arts, Boston Opens New Ancient Coin Exhibit

The Museum of Fine Arts, Boston, has opened our nation's only permanent exhibition space for ancient coins in a US art museum.   There are other more or less permanent displays of ancient coins at other art museums, but nothing of a similar scale.

Kudos to the MFA for exhibiting its fine collection of ancient coins for the public.  For more, see here.

Friday, October 5, 2012

Ancient Coin Trade Fights Back

The Art Newspaper (Oct. 2012) has published an article by Riah Pryor about the ACCG's test case, currently pending before the Fourth Circuit Court of Appeals.   The article correctly notes that one of  ACCG's key complaints is that the applicable regulations " muddl[e] up the place a coin was made with the place it was found."  If the point of import restrictions is to protect archaeological sites in source countries, why has the Government written restrictions based on a coin's place of production rather than its find spot? 

Nathan Elkins, a strident critic of collectors and the coin trade, suggests that the dispute is between "experts and academics on one side and and collectors and dealers on the other," but several more seasoned academics I know have also expressed concern that such over broad restrictions do little but encourage grasping cultural bureaucracies like  those of Cyprus, Greece, Italy, and China to lay claim to any artifact that may have been produced in those countries millenia ago. 

Is this really what protecting archaeological sites should be about?

Thursday, October 4, 2012

The Candidates Agree Small Business Needs Help-- When Will State and CBP Get the Message?

Like many Americans, I watched the Presidential debate last night.   The candidates disagreed on many things, but agreed that small business needs help and that "one size fits all" regulations can harm small business without really benefiting the public at large.

When will the State Department and US Customs and Border Protection get the message?  Their "one size fits all" import restrictions on cultural goods require the same showing for licit import of a $1 million dollar vase as a $2 coin widely traded abroad.   (And let's not forget CBP has gone well beyond what is allowed under law to only allow import of artifacts pictured in auction catalogues.)  As I observed during oral argument before the Fourth Circuit Court of Appeals in the ACCG test case, that simply makes no sense. 

Despite nods of agreement from two of the judges on the panel, the Court may indeed decide to affirm Judge Blake's decision to give State and CBP the green light to crush the small businesses of the numismatic trade with such over regulation, but the question remains does this make sense?

Tuesday, October 2, 2012

Turkish Minister of Culture Defends Repatriation Drive with New Age Spiritualism?

An informed CPO reader who has lived in the Islamic world found this statement attributed to  the Turkish Minister of Culture not only bizarre, but potentially offensive to Muslims:

“Artifacts, just like people, animals or plants, have souls and historical memories,” said Turkey’s culture minister, Ertugrul Gunay. “When they are repatriated to their countries, the balance of nature will be restored.”

The belief that objects are somehow sacred and that they possess "souls" would be considered idolatry in Islam. Only God can endow a creature with a soul and only living creatures are so endowed.

As a statement of official position from a secular, but nonetheless Islamic country run by an Islamicist party-- the AK-- this is deeply shocking. As a parroting of the overwrought SAFE line - perhaps not so much.

Was the Turkish Minister of Culture just playing to fringe elements within the archaeological lobby that have been supportive of Turkey's aggressive repatriation demands?  Does he really believe artifacts have "souls?"  If so, I suggest he make the same statement to a Turkish newspaper, and then see what reaction he receives.

And frankly, doesn't such talk just give ammunition to fanatic Islamic militants who have smashed antiquities in the name of stamping out idolatry? 

Monday, October 1, 2012

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.