Public Meeting of the US Cultural Property Advisory Committee to Consider Renewal with Algeria and Proposed MOU with India

 On January 30, 2024, the US Cultural Property Advisory Committee (CPAC) met in a virtual public session to hear testimony regarding a proposed renewal of MOUs with Algeria and a new proposed MOU with the Republic of India.  An update on the Bureau of Educational and Cultural Affairs’ (ECA’s) website made shortly before the hearing provided further information about the scope of the requests.  See Cultural Property Advisory Committee Meeting, January 30 – February 1, 2024, Bureau of Educational and Cultural Affairs Media Center (November 29, 2023) (but subsequently updated), available at https://eca.state.gov/highlight/cultural-property-advisory-committee-meeting-january-30-february-1-2024 (last visited February 3, 2024).   Although that update was subsequently deleted, it stated that Algeria sought no change to the current exceptionally broad designated list for import restrictions, and that India sought a breathtakingly broad list of items to be covered which included cultural goods made as recently as the end of the British Raj in 1950:

 India

 The Government of India seeks import restrictions on archaeological and ethnological materials dating from 1.7 million years ago to 100 years ago, including objects dating from the Paleolithic, Mesolithic, Neolithic, Ancient Periods (including, but not limited to, the Indus Valley Civilization, Maurayan Empire, Shunga Empire, Gandharan Kingdom, Gupta Period, and the Gurjara-Pratihara, Rastrakuta, and Pala Dynasties), and Historic Periods (including, but not limited to, the Chola Dynasty, Delhi Sultanate, Mughal Empire, and the British Raj).  Categories of objects include stone tools and artifacts, terracotta figurines, toys, coins and medals, seals and sealing, molds, dies, sculpture, utensils, architectural materials, arms and ammunition, scientific instruments, and jewelry and toiletries.  Protection is also sought for miniature paintings, art pieces in cloth and paper, and manuscripts dating from the 7th century CE to 75 years ago. 

 Id. (but subsequently deleted from the website). 

 The CPAC members did not introduce themselves before the public session, but CPAC currently includes the following members: (1) Alexandra Jones (Chair, Represents/Expertise Archaeology, Anthropology, related fields, CEO Archaeology in the Community, Washington, DC); (2) Alex Barker (Represents/Expertise Archaeology, Anthropology, related fields) Director, Arkansas Archeological Survey, Arkansas); (3) Mirriam Stark, Represents/Expertise Archaeology, Anthropology, related fields, Professor of Anthropology, University of Hawaii); (4) Nii Otokunor Quarcoopome (Represents/Expertise Museums, Curator and Department head, Detroit Museum of Art); ( (5) Andrew Conners (Represents/Expertise Museums, Director, Albuquerque Museum, New Mexico); (6) Michael Findlay (Represents/Expertise: International Sale of Cultural Property, Director, Acquavella Galleries, New York); (7) Amy Cappellazzo, Represents/Expertise: International Sale of Cultural Property, Principal, Art Intelligence Global; (8) Cynthia Herbert (Represents/Expertise: International Sale of Cultural Property President, Appretium Appraisal Services LLC, Connecticut); (9) Thomas R. Lamont (Represents Public, President of Lamont Consulting Services, LLC, Illinois);  (10) Susan Schoenfeld Harrington  (Represents Public, Past Deputy Finance Chair, Democratic National Committee, Past Board member, China Art Foundation); and, (11) William Teitelman (Represents General Public, Legislative Counsel to the PA Trial Lawyers Association, Attorney (Retired)).

 The Chair, Alexandra Jones, welcomed the speakers and assured them that their written comments had been read.  She indicated that speakers would be given 5 minutes each. 

 Dr. Mark Lycett was the first speaker.  He is the director at the South Asia Resources Center at the University of Pennsylvania.  He supported the MOU and thought that import restriction will help encourage continued collaboration between the Indian government and American archaeologists.  His talk focused on looting of temple complexes for idols.

 Prof. Miriam Stark (represents archaeology) asked Lycett if he had observed looting.  He says yes, particularly of temple complexes.  He had not seen metal detectors in use but understood they are used.

 His written comments can be found here:

https://www.regulations.gov/comment/DOS-2023-0040-0032 (last visited February 3, 2024).

 Kate FitzGibbon (Executive Director, Committee for Cultural Policy) spoke about India.  India has a terrible record of neglect of its archaeological heritage and its government, run by Hindu religious supremacists, has engaged in a policy of destroying the cultural heritage of its Muslim population.  The Indian legal system is ineffective at dealing with looting.   What has been returned already has neglected.   Many of the bronze idols that have been returned suffer from bronze disease because they have not been conserved.  During the British Raj both Indian and British enthusiasts built up great collections, many of which were removed from India right after Independence due to fear that the post-independence Socialist leaning government would confiscate them. 

 Despite Ms. FitzGibbon’s obvious knowledge of the subject, there were no questions. 

 The Committee for Cultural Policy and the Global Heritage Alliance’s written comments on the proposed MOU with India can be found here:

 https://www.regulations.gov/comment/DOS-2023-0040-0042 (last visited February 3, 2024)

 Sanja Kampoor briefly spoke.  He indicated that he agreed with the points made in Kate FitzGibbon’s testimony. 

 Nicholas Fritz spoke next.  Fritz is a young professional numismatist with Stack’s Bowers auction house.  He indicated that the Indian MOU request as to coins was over broad, including many types well-known to scholarship, which should not be restricted.  He further indicated that an MOU would only encourage smuggling.  

 Alexandra Jones (Chair, representing archaeology) and Miriam Stark (representing archaeology) asked Fritz a series of hostile questions.  Jones wanted to know why modern-day India should not be able to control the heritage of all of historic India (which included Pakistan and Bangladesh), and Stark debated with Fritz about the importance of coins as archaeological artifacts.  (Comment:  The belligerent tone both Ms. Jones and Ms. Stark used with Mr. Fritz did not reflect well either on CPAC or the Biden Administration that appointed them.  If the State Department really wants public comment, it should advise CPAC members of their responsibility to treat members of the public, particularly those who have never appeared before the Committee, with respect.)

 Peter Tompa (Executive Director, International Association of Professional Numismatists) was called to speak next.   He made the point that the designated list for Algeria and the proposed one for India were greatly overbroad, including coin types that circulated far outside these countries.  He also indicated that later coins, particularly of the Raj, do not fit the definitions of either archaeological or ethnological objects necessary for them to be restricted.  All coins of the British Raj are less than 250 years old and hence cannot be treated as archaeological objects under the governing statute. Additionally, they are the products of what at the time were sophisticated industrial practices, so they cannot be treated as ethnological objects.  He also discussed the large internal market in India and how given such a market, import restrictions that only impact American collectors made no sense.  He also noted that collecting is necessary because governments and museums cannot preserve all the coins out there. Finally, he discussed the importance of regulating metal detectors as a self-help measure and a less drastic remedy.  In so doing, Tompa made clear that the British Portable Antiquities scheme and Treasure Act were the preferred method of regulation. Tompa closed by recalling that he had met an Indian collector some years ago who had built up his collection by buying coins from jewelers in India, who would have otherwise melted the coins for bullion.  Tompa provided members of CPAC with a real-world example to show that collectors are essential for the preservation of coins. 

 Miriam Stark (representing archaeology) stated her belief that coins must be restricted because they are important for archaeology.  She demanded to know if Tompa had ever worked at an archaeological site.  He indicated he had not, but he had discussed the issue with others who had.  Tompa indicated that archaeologists mainly see coins as dating tools, but they are generally poor tools for dating archaeological strata because historical coins circulated for long periods of time and only coins from secured contexts were really useful for that purpose.  Stark also asserted that CPAC had no right to suggest that the Indian government regulate metal detectors.  Tompa indicated the governing statute requires as much and before the State Department started issuing generic MOUs, an agreement with Cyprus required as much.  He suggested that Stark should consult with State Department lawyers about the statutory requirements for MOUs. 

 The International Association of Professional Numismatists’ comments for the proposed renewal of the MOU with Algeria can be found here:

 https://www.regulations.gov/comment/DOS-2023-0040-0029 (last visited February 3, 2024).

 The International Association of Professional Numismatists’ comments for the proposed MOU with India can be found here:

 https://www.regulations.gov/comment/DOS-2023-0040-0028  (last visited February 3, 2024).

 Tompa’s personal comments can be found here:

 https://www.regulations.gov/comment/DOS-2023-0040-0036 (last visited February 3, 2024). 

 Randy Myers spoke next on behalf of the Ancient Coin Collectors Guild.   He raised concerns about insufficient public notice for CPAC meetings, including the details of any requests.  He noted that the State Department website that announced the upcoming CPAC meeting, though dated November 29, 2023, was updated just recently to include more details about the request, but misleadingly without indicating the date the text was modified.  (Perhaps in response, the State Department recently deleted this additional information from the post.)  Myers also reiterated the argument that one cannot assume many of the coins on the Algerian designated list or conceivably might be on the one for India were actually found there.  He also discussed the importance of considering a portable antiquities scheme as a less drastic measure before imposing import restrictions.  Finally, he also indicated that neither Algeria or India should be awarded rights to coin issues of displaced or discriminated minorities.  This would include Christian Spanish and Byzantine coins and many Muslim coins from India.

 Alexandra Jones (chair, representing archaeology) debated with Myers about the notice requirements, maintaining that the State Department only needed to give the public 15 days’ notice.   Myers explained based on his long experience as an attorney for a large federal agency, he believed that the law requires 60 days’ notice.  He also indicated that if Jones wants to encourage informed public comment, 60 days’ notice is essential. 

 The Ancient Coin Collectors Guild’s and the American Numismatic Association’s joint written comments can be found here:

 https://www.regulations.gov/comment/DOS-2023-0040-0012 (last visited February 3, 2024).

Elias Gerasoulis (Executive Director, Global Heritage Alliance) next spoke on behalf of both the Global Heritage Alliance and the Committee for Cultural Policy with regard to the proposed renewal of the MOU with Algeria.  Gerasoulis indicated that Algeria had failed to meet any of the statutory for renewal.   He further indicated that CPAC should not recommend a renewal of a MOU that recognizes the rights of Algeria’s authoritarian government to the cultural heritage of its displaced Jewish population.

 The Global Heritage Alliance’s and the Committee for Cultural Policy’s comments for the proposed renewal of the MOU with Algeria can be found here:

 https://www.regulations.gov/comment/DOS-2023-0040-0017 (last visited February 3, 2024).

 Ömür Harmanşah (Vice President for Cultural Heritage, Archaeological Institute of America) spoke briefly in support of both MOUs.  He indicated that both countries had met their statutory burdens and MOUs should be completed with each.  

 The Archaeological Institute of America’s comments with regard to India can be found here:

 https://www.regulations.gov/comment/DOS-2023-0040-0052 (last visited February 3, 2024).

 Those related to Algeria can be found here:

 https://www.regulations.gov/comment/DOS-2023-0040-0048 (last visited February 3, 2024).

 Peter Herdrich (Executive Project Director, Algerian Cooperative Plan for the Digitization of HeritageCEO, Cultural Capital Group) discussed a digitization project for Algerian museum and private collections paid for by the US government which also involved the Antiquities Coalition.  Herdrich maintained that this US government funded program showed that Algeria was engaged in protecting its own cultural heritage. (Comment:  There is a real question whether money paid to US contractors who also lobby for MOUs should be considered “self-help.”  See

https://culturalpropertynews.org/careful-collector-no-22-your-tax-dollars-at-work/  (last visited February 5, 2024).)

Nii Otokunor Quarcoopome (representing museums) asked Herdrich if any of these efforts were directed at preserving Jewish and Berber culture.  Hedrich responded by indicating that such materials were included in the inventories of institutions that were partner organizations. 

 Herdrich’s written comments can be found here:

 https://www.regulations.gov/comment/DOS-2023-0040-0037 (last visited February 3, 2024).

CPAC to Consider New MOU with India and Renewal of MOU with Algeria

 The State Department has announced that the Cultural Property Advisory Committee (CPAC) will meet on January 30-February 1, 2024, to consider a request for the United States to enter into a cultural property MOU with the Republic of India.  According to the Federal Register notice, public comments and requests to speak are due no later than January 22, 2024, for the public session which will take place from 2:00-3:00 PM on January 30, 2024.  CPAC will consider a renewal of the current MOU with the People’s Democratic Republic of Algeria at the same time.

The Cultural Heritage Center's website should hopefully provide some clarity of the scope of the Indian request in the near future.  Import restrictions associated with the current MOU with Algeria already encompass a wide variety of ancient and early modern coin types.  They also cover, at least implicitly, the cultural heritage of displaced Jewish and Christian minority populations. 

The Indian request should raise a number of questions given its likely breadth.  First, are all the listed archaeological objects not only of "archaeological interest" but of "cultural significance," and do they meet the governing statute's 250-year threshold? Convention on Cultural Property Implementation Act, 19 USC Section 2601 (C) (i) (I)(II). Second, are all the listed ethnological objects really the products of "tribal or nonindustrial society" "that are important to the cultural heritage of a people because of its distinctive characteristics, comparative rarity, or its contributions to the knowledge origins, development or history of that people?"  19 USC Section 2601 (C) (ii) (I)(II).

Third, has India taken "measures consistent with the [1970 UNESCO] Convention to protect its cultural patrimony" under 19 USC Section 2602 (a) (1) (B) when concerns have been raised about India’s notoriously poor stewardship of its own cultural heritage, including not only neglect, but outright destruction of Muslim and Christian minority cultural heritage.   

Finally, does the State Department intend to recognize the rights of India’s sectarian Hindu government to ownership and/or control of the cultural heritage of today’s minority Muslim, Christian and Jewish communities?   While India is a democracy, these groups have nonetheless suffered discrimination and have even faced occasional pogroms.  In particular, Muslim and Christian places of worship have sometimes been attacked by mobs egged on by local politicians. 

Coins also raise a number of specific issues.  First, there appears to be a substantial overlap in the types of Indo-Greek, Kushan, Indo-Sassanian, and later Islamic coins found in Afghanistan, Pakistan and India.  Under the circumstances, how can the State Department conclude that particular coins were "first discovered within and [are] subject to export control by" India? 19 USC Section 2601 (2) (C).

Second, coins of all periods are legally bought and sold in India. So, why should our State Department restrict Americans from buying the same type of "Indian" coins abroad?

The current MOU with Algeria’s authoritarian government raises similar questions.  Again, the designated list is exceptionally broad, and includes at least implicitly the cultural heritage of displaced Jewish and Christian populations. 

The exceptional breadth of the designated list is readily apparent regarding coins.  Indeed, it includes many Greek, Roman Provincial, Numidian, Mauritanian, Byzantine, Islamic and Ottoman coin types that circulated either regionally or internationally. Under the circumstances, how can the State Department conclude that particular coins were "first discovered within and [are] subject to export control by" Algeria? 19 USC Section 2601 (2) (C).

How to comment?  According to the State Department, the public should be able to comment on regulations.gov by searching for docket DOS-2023-0040 and following the prompts.  

As of today, however, that link is not active.  CPO will update this blog post once it is possible to comment and/or the State Department provides more clarity about the proposed designated list to be associated with any MOU with India.

Addendum (December 16, 2024):  The blue "comment now" button on the regulations.gov website is now active.  You should be able to directly access the ability to comment here. 

Addendum (January 15, 2024):  The State Department has provided some additional information about the categories of material for which import restrictions will be considered.  They are as follows:

India

The Government of India seeks import restrictions on archaeological and ethnological materials dating from 1.7 million years ago to 100 years ago, including objects dating from the Paleolithic, Mesolithic, Neolithic, Ancient Periods (including, but not limited to, the Indus Valley Civilization, Maurayan Empire, Shunga Empire, Gandharan Kingdom, Gupta Period, and the Gurjara-Pratihara, Rastrakuta, and Pala Dynasties), and Historic Periods (including, but not limited to, the Chola Dynasty, Delhi Sultanate, Mughal Empire, and the British Raj).  Categories of objects include stone tools and artifacts, terracotta figurines, toys, coins and medals, seals and sealing, molds, dies, sculpture, utensils, architectural materials, arms and ammunition, scientific instruments, and jewelry and toiletries.  Protection is also sought for miniature paintings, art pieces in cloth and paper, and manuscripts dating from the 7th century CE to 75 years ago. 

 Algeria

Extending the Algeria agreement would continue import restrictions on certain archaeological material from Algeria, ranging in date from approximately 2.4 million years ago to approximately 1750 AD including material from the Paleolithic, Neolithic, Classical, Byzantine, Islamic, and Ottoman Periods.  The Government of the People's Democratic Republic of Algeria has not requested additional categories of material.

More here.

Poor Laws Damage Heritage

Here is a bit of common sense from an Indian professor that outlines how poor laws and a worse cultural establishment in that country have actually done more harm than good to India's cultural patrimony.  

It's to the discredit of the American archaeological community that they never so much as acknowledge that poor laws and underfunded, corrupt or inept cultural bureaucracies may be the actual root of the problem.

But real tragedy is that "control" all too often seems more important to cultural bureaucracies both here and abroad than common sense measures that promote both conservation and public participation in caring for the past. 

Open Up Our Treasure Chests

This editorial calling on India to liberalize its antiquated cultural patrimony laws is well worth reading:

Open up our treasure chests
Suresh Neotia, Hindustan Times
October 19, 2010
First Published: 21:53 IST(19/10/2010)
Last Updated: 21:56 IST(19/10/2010)
http://www.hindustantimes.com/Open-up-our-treasure-chests/Article1-615115.aspx

It is heartening to see that the Ministry of Culture, presided over by Prime Minister Manmohan Singh and administered by Secretary Jawahar Sircar, is actively considering amending the 1972 Act on Antiquities. Few laws have borne such bitter fruit as the Indian Antiquities and Art Treasures Act of 1972, ushering in a Dark Age for the heritage it sought to protect. What prompted the then Government to enact this legislation was to prevent smuggling and help develop public interest in our heritage. The time has come honestly to appraise its effects.

The Act has destroyed legitimate domestic trade in antiquities, thereby making smuggling an attractive option. Its onerous provisions for registration (requires registering of objects more than 100 years old, 75 years in the case of textiles, with details of the purchaser, seller, price, origin of the piece along with photo documentation) and licensing have made antiquities a no-go area, to the extent that even scholarship and research into our heritage has gone into sharp decline. The chickens are now coming home to roost. The Government cannot find scholars of repute to head its museums and their specialised departments. More than 50 per cent of all our public museums (including the National Museum), home to the bulk of the nation’s artistic patrimony, are headless.

Art and art scholarship depend on patronage and a lively market place. It requires a network of collectors, dealers and scholars to authenticate individual pieces, guide collectors and educate the public. The Act destroyed this network, the complexities of registration and possibility of prosecution deterring collectors. No collection of any significance has been formed since 1972, in sharp contrast to the numerous collections between 1947 and 1972. The licensing of dealers and the requirement of a detailed inventory for each object drove the trade underground. I am told there are only two dealers who ever took a licence.

The study of antiquities also withered. The story of the two auction houses which attempted to revive domestic trade in Indian antiques is well-known. Sotheby’s in 1992 and Bowring’s in 2004 were auctioning registered pieces. The CBI and Archaeological Survey of India hounded them, forcing them to close shop. Bowring’s case is still under adjudication after it won in the High Court but the ASI chose to file an appeal in the Supreme Court.

The Antiquities Act was flawed in its scope and ambition. No distinction is made between humble art objects and works of art of high value. In the event, only a small proportion of the total was actually registered. The registration papers are scattered all over the country, often misplaced, requiring owners to re-register their collections.

The Indian contemporary art scene is fuelled by the new rich. Galleries, curators and auctions have mushroomed while prices have been benchmarked. The trading value of contemporary art runs into thousands of crores. There is, however, no means of evaluating the price of an Indian antique.

China, which destroyed its own priceless heritage during Mao’s Cultural Revolution, has realised the importance of its inheritance. We, who are envious of its economic track record, should be equally so of what it is doing to protect its heritage. Its museums are now world-class. Though it has a ban on antique exports, China has opened up its domestic market. Chinese antiques are being sold to China’s new rich at prices higher than in Western salerooms. Foreigners owning valuable Chinese artworks are increasingly selling these through Chinese auction houses. India’s new rich, like their Chinese counterparts, have the appetite and resources to buy heritage art. My estimate is that benchmark valuations will grow exponentially once the competitive urge to acquire takes hold of rich Indians.

The Indian Antiquities and Art Treasures Act was passed during the heyday of the licence raj, an era brought to its end by none other than Dr. Manmohan Singh. It would be in the fitness of things if he could now free antiquities from the clutches of the bureaucracy with similar beneficial effects. Antiquities must once again become objects to cherish, not shun.

Suresh Neotia is Chairman, Ambuja Cement Foundation and art collector. The views expressed by the author are personal

Common Sense from India

An Indian publication, the Hindu, has posted an intersting editorial calling for India's laws to be updated to provide for both enhanced enforcement and the institution of a system akin to the Treasure Act and Portable Antiquities Scheme. See http://beta.thehindu.com/opinion/editorial/article96475.ece

As the editorial states,

Best practices in England and Wales show that it helps to have an amended legal framework that is accommodative and forward-looking. They also demonstrate that the practical way to enhance protection is to involve communities in reporting and protecting artefacts. The Portable Antiquities Scheme, implemented in England and Wales, is one of the biggest success stories of recent times. The scheme encourages local communities to voluntarily report and register the discovery of artefacts with the help of experts. The resulting data base is placed in the public domain. So far it has documented 400,000 archaeological finds, including the remarkable eighth-century Staffordshire Hoard. The functional features of such schemes can be modified to suit Indian conditions but there must be sincere and diligent implementation. Efforts in Italy demonstrate that enhanced and dedicated policing and the aggressive pursuit of stolen antiquities abroad is equally necessary. In 2009, Italian art police recovered about 60,000 pieces of looted antiquities and helped reduce art theft by 14.5 per cent from the previous year. Comparable results can be achieved in India if protective measures are professionalised and creative partnerships developed with local communities.

I'm pleased to see this Indian publication is advocating use of the "carrot" as well as the usual "stick."

Terror Torches Historic Taj Majal Hotel

The terror attack on Mumbai is a tragedy on many levels. The first, of course, is the loss of life. It is also sad that the historic Taj Mahal Hotel suffered heavy damage. The hotel has an interesting history that can be found here: http://en.wikipedia.org/wiki/Taj_Mahal_Palace_&_Tower One wonders if this history, including its association with the powerful Tata Group, helped mark it as a target.

A View from India

This month's Art Newspaper at page 59 has an interesting article from an Indian academic, Dr. Naman P. Ahuda. It is entitled, “India: a Tale of Two Markets”.

The article is a synopsis of a larger report prepared for the Task Force on Cultural and Creative Industries, Planning Commission of India.

Ahuja is a highly respected scholar of art history. He first explains economic development/urbanism is now a far greater cause of site destruction than art collecting:

The biggest irony of all is that, in any case, a desire for the possession or art objects is no longer the driving force for the desecration of or pillaging of ancient sites. The Indian government has built dams … knowing that the archaeological context will be sacrificed. It is the advance of man – urbanisation, the cutting down of forests, the construction of roads and dams, and expanding agriculture --- that is now the biggest source of destruction.

Like Cuno, he also understands that:

(laws controlling export of archaeological material) were passed in the interests of nationalism… designed to foster a belief in outside cultural imperialism and are both a symptom and source of deep emotional feeling. And although these laws have proved remarkably ineffective, their emotional basis makes it difficult for the relevant authorities to adjust them.

He also explains that in practice such laws do little but promote public corruption and perverse results:

The law invests officialdom with powers that risk engendering corruption. It is widely known that bribes have been paid to get a license to sell antiquities, to get "non-antiquity" certificates to be able to export them, to even register an antiquity with the authorities.... [U]nsympathetic laws will continue to result in the destruction of the archaeological record unless a proper system of reward exists, since finders usually channel such objects into the illicit market. Anecdotal evidence suggests that the costs of bribes or adhering to the law are potentially so damaging that finders are deliberately destroying pieces rather than run the risk of being caught with them.

As a result, Ahuda suggests that a fundamental "adjustment" in such laws is what is needed:

An adjustment of the present laws to encourage legitimate domestic trade would be effective in restricting the smuggling routes on which the illicit international trade depends. The easing of the sale of such items within India will go a long way in preserving national heritage as awareness of art, history and heritage increases.

It is interesting to find that an academic from a "source country" is advocating the same things authorities like James Cuno and the AAMD have been advocating in this country. Hopefully, authorities like Ahuda will encourage other academics from source countries to also challenge the outdated nationalistic orthodoxy in their own countries. Perhaps, then even the archaeologists behind the new Penn Cultural Heritage Center will notice.