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January 2008 – Illicit Cultural Property

Month: January 2008

The PAS

This is the “Staffordshire Pan”, a copper alloy “patera” which is decorated with enameled scrollwork. It was found in 2003, and reported to the Portable Antiquities Scheme, and later acquired by the British Museum, Tullie House, and the Potteries Museum. You can read more about the patera at the PAS website. For those interested in the PAS, I highly recommend their blog.

Below is an interview conducted by Chris Vallance of Radio 4 with Roger Bland, the Director of the PAS, and Roy Clare of the Museums, Libraries and Archives Council which currently oversees the program. The object Bland discusses is none other than this very patera. The PAS has received a great deal of attention of late, because it is in jeopardy of funding cuts, as the MLA is itself absorbing a 25% budget decrease this year. The PAS is a remarkably successful program, and as Bland notes in the interview below, utterly unique.

On a related note, there will likely be light posting this week as I will be headed to sunny Los Angeles to discuss some of the policy implications of the PAS. Though it is a remarkable program, and very successful, I’m not sure it is necessarily a solution to looting of antiquities in all source nations, especially in the developing world. I hope to post some more detailed thoughts on that when I return early next week.

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Questions or Comments? Email me at derek.fincham@gmail.com

More on the California Searches


“I have rarely seen Federal agents come out in such force as they did today”.

That’s what LA Times staff writer Jason Felch remarked yesterday on KCRW. He also has a very nice overview of the investigation so far, with links to the search warrants in today’s edition of the LA Times.

The massive search yesterday of the LA County Museum of Art, along with Pasadena’s Pacific Asia Museum, the Bowers Museum in Santa Ana and the Mingei Museum in San Diego has yet to result in any arrests or indictments. However it seems to be just a matter of time. It goes without saying that when Federal agencies and prosecutors get involved, they seldom lose.

Much of the allegations were established by the undercover work of a National Parks Service employee. Based on the search warrants, it seems the investigation started in response to looting of Native American sites, and quickly expanded.

Robert Olson, who spends a lot of time in southeast Asia is known in the affidavits as “the smuggler”. The other main target appears to be Jonathan Markell, of the Silk Roads Gallery.

This is a powerful image which appeared in the LA Times today, with agents from the IRS, Immigration and Customs Enforcement, and the National Park Service searching prominent California art institutions. Even if this search does not amount to a criminal prosecution, it sends a powerful message to the antiquities trade, including museums that purchase these objects, that federal agents are watching, and the trade needs to quickly and efficiently change the way it does business.

I think we can take a few things away from this investigation. First, the alleged objects were of limited value. These aren’t comparable to the Euphronios Krater for example. They are smaller objects, but were bought and sold in greater quantities. Objects were allegedly illegally excavated from Thailand (most from the Ban Chiang site), China, Myanmar and Native American sites in the US.

Second, I think this is compelling evidence of a systemic problem with the antiquities trade. Many have discussed these problems before. The lack of provenance, and the ease with which smugglers can elude customs agents makes policing the trade difficult. However, it would seem now that those who would buy and sell objects can no longer afford to cut corners, and must now conduct far more detailed investigations into how objects came to market.

Finally, I think this investigation reminds us that Roman and Greek objects are not the only classes of antiquities that are smuggled, despite the attention the recent returns from US institutions have indicated. Clearly, the question now is how many indictments or convictions will ensue, and how will the individual art institutions and the relevant industry codes of practice evolve to prevent this kind of criminal activity in the future.

Other Links:

Questions or Comments? Email me at derek.fincham@gmail.com

Breaking News: Major Antiquities Investigation

In what may result in the next large-scale antiquities smuggling prosecution in the United States, federal agents today served search warrants on four California museums and an art gallery. Warrants were served on the Los Angeles County Museum of Art, Pasadena’s Pacific Asia Museum, the Bowers Museum in Santa Ana and the Mingei International Museum in San Diego. Jason Felch has the story in the LA Times. The Silk Roads Gallery is apparently a major focus of the five-year investigation.

This could be the first major antiquities prosecution in the United States since the conviction of antiquities dealer Fred Schultz. It goes without saying though that this kind of massive investigation is unprecedented. The warrants claim Southeast Asian and Native American artifacts were looted and smuggled into local museums.

Questions or Comments? Email me at derek.fincham@gmail.com

Pre-Empting a Holocaust Art Claim


In the Boston Globe Geoff Edgers has the details of a dispute brought by the MFA Boston against an Austrian woman who claims an interest in this work by Oskar Kokoschka, Two Nudes (Lovers) 1913. It’s a declaratory judgment action, in which the museum is asking the court to declare it the owner, rather than wait for the claimant to bring suit.

The potential claimant, Claudia Seger-Thomschitz, claims the painting was sold by Oskar Reichel a physician and gallery owner in Austria. In its complaint, the MFA Boston argued the “painting was never confiscated by the Nazis, was never sold by force as a result of Nazi persecution, and was not otherwise taken”.

After the work was sold in 1939, the work was sent to Paris; in 1945 it was sold to a New York dealer for $1,500; Sarah Blodgett purchased the work in the 1940s; she gave the work to the MFA Boston in 1972.

Nobody would dispute the persecution the Reichel’s faced before and after the sale of the work:

The Nazis occupied Vienna in early 1938. Over the next year, Reichel was forced to sell his gallery and close his medical practice, they said. Two of his sons left Austria. A third son, Max, died in a concentration camp. Reichel’s wife, Malvine, was deported to a camp during the war but survived. In 1943, Reichel died in Vienna of natural causes.

However, does that injustice give the claimant an interest in the painting, which has been owned by the MFA Boston since 1972? The museum says no. It’s similar in nature to a claim brought by the Toledo Museum of Art last year, which I discussed earlier.

In two earlier cases the institutions initiated their legal actions in quiet title actions. In this way the institutions can choose the forum and the relevant law which will apply to the action. This is a new strategy for art museums. Professor Jennifer Anglim Kreder has a short but informative article on the practice in an October 2007 issue of the Art, Cultural Institutions and Heritage Law Committee Newsletter, available on her SSRN page. She also details an action by the Detroit Institute of Art against the same heirs asserting a claim against the Toledo Museum of Art.

This strategy actually discourages claimants from coming forward and seeking compromise. It’s been noted many times that these kinds of disputes are between two relative innocents. In such cases, there may often be room for reasonable compromise such as initial payments or title-sharing agreements of some kind. However if a claimant shows her hand early, she now will risk the possibility that an institution will quickly seek itself declared the owner and preclude any claim.

Questions or Comments? Email me at derek.fincham@gmail.com

St. Ninian’s Isle Treasure

Shetlandtoday is reporting that the MSP for the Highlands and Islands and member of the Scottish National Party Dave Thompson has welcomed Alex Salmond’s calls for the return of the Lewis Chessmen as a positive indication that the St. Ninian’s Isle treasure will be returned to St. Ninian’s Isle. Thompson wrote in a letter to the Scottish culture minister and the director of the National Museums of Scotland:

I am pleased the First Minister has decided to raise the matter of the Lewis Chessmen. I think it opens up an interesting debate on how we support our local museums. For the past two months I have been acting on behalf of the people of Shetland to try and secure the St Ninian’s Isle Treasure back to its rightful home. I firmly believe that artefacts of local significance should be kept locally. It undoubtedly boosts local tourism and is beneficial to the community as a whole, both historically and culturally.

As I argued last week, I’m not sure what ethical basis Salmond can make for the Lewis Chessmen. They were acquired legally and rightfully, and they were in fact almost certainly created in Norway. Norway would seem to have a better ethical and cultural claim to the objects than would Scotland. If Salmond does want the Chessmen returned, that precedent could be used to repatriate a great deal of objects currently on display at the National Museum of Scotland and elsewhere. It might also commit him to abandon the notion of a “Museum of Scotland”.

First, a bit of background of the St. Ninian’s Isle treasure. The objects were discovered by a University of Aberdeen archaeologist in 1958. The treasure is comprised of 28 silver objects and a porpoise bone. The resulting dispute Lord Advocate v. University of Aberdeen and another, 1963 S.C. 533, saw the University unsuccessfully challenge the notion that the found objects should fall to the Crown. St. Ninian’s Isle is a small body of land a short distance from Shetland. In 1955 a University of Aberdeen team of researchers began excavation work aimed at finding the ruins of a medieval church. In July of 1958 the 8th century Celtic hoard was discovered. The Lord Advocate then brought an action seeking a declaration that the find belonged to the Crown, while the University and the landowner contested the claim.

In the ensuing legal dispute two arguments were advanced by the University. First, it was argued the feudal common law rule had no application in Shetland and Orkney where land was “udal”, and not subject to the feudal rules, as a result of their acquisition in the 15th century from Denmark and Norway. However the trial judge Lord Hunter held

[A]lthough treasures found in the ground are inter regalia, in the sense of things which the law appropriates to princes and states, and exempts from private use, the right to treasure is a right belonging to the sovereign by virtue of his royal prerogative and as head of the national community rather than by virtue of his position as universal landlord.

This argument was supported on appeal. The second argument urged the court to recognize rights in udal lands as superior to those of the crown. In advancing the argument the University compared treasure trove to undiscovered minerals. However this reasoning proved unsuccessful as well, as “plenary ownership of land carries with it everything a caelo usque ad centrum, including even all moveable articles in or on the land.” As such the ordinary laws of Scotland would apply and objects qualifying as treasure under Scots law “must be precious; they must be hidden in the ground; and there must be no proof of their property or reasonable presumption of their former ownership.”

The case presented interesting legal questions for Scots property law, but from a cultural property policy perspective, the excavation, study and display was a complete success. The site was professionally excavated, the archaeological context was recorded, and the treasure is now on public display in Scotland. The question is, does Shetland have a claim for the objects? In my view that’s a question of allocation domestically. Scotland, which is roughly the size of South Carolina, has a surprising degree of local and regional pride which can sometimes turn heated.

I think it may be worth asking whether the St. Ninian’s treasure should be returned to Shetland, however that would require Salmond and the SNP to formulate a cohesive cultural policy. At present it would appear if he is merely making statements, which are often misleading, to depict Scotland as a continuing victim of English imperial aggression. If that happens though, there will be trade-offs. Researchers may have more difficulty studying objects as they may not have access to objects from other cultures which have been returned, and creating a safe and secure display facility for all of these various objects will certainly be an expensive undertaking. These are important questions to be sure, but I haven’t seen a serious analysis of these issues despite these calls for return.

(Hat tip: Archaeology in Europe).


Questions or Comments? Email me at derek.fincham@gmail.com

St. Ninian’s Isle Treasure

Shetlandtoday is reporting that the MSP for the Highlands and Islands and member of the Scottish National Party Dave Thompson has welcomed Alex Salmond’s calls for the return of the Lewis Chessmen as a positive indication that the St. Ninian’s Isle treasure will be returned to St. Ninian’s Isle. Thompson wrote in a letter to the Scottish culture minister and the diirector of the National Museums of Scotland:

I am pleased the First Minister has decided to raise the matter of the Lewis Chessmen. I think it opens up an interesting debate on how we support our local museums.

“For the past two months I have been acting on behalf of the people of Shetland to try and secure the St Ninian’s Isle Treasure back to its rightful home.

“I firmly believe that artefacts of local significance should be kept locally. It undoubtedly boosts local tourism and is beneficial to the community as a whole, both historically and culturally.

As I argued last week, I’m not sure what ethical basis Salmond can make the claim to the Lewis Chessmen. They were acquired legally and rightfully, and they were in fact almost certainly created in Norway. Norway would seem to have a better ethical and cultural claim to the objects than would Scotland. If Salmond does want the Chessmen returned, that precedent could be used to repatriate a great deal of objects currently on display at the National Museum of Scotland and elsewhere.

The St. Ninian’s Isle treasure was discovered by a University of Aberdeen archaeologist in 1958. The treasure is comprised of 28 silver objects and a porpoise bone. The resulting dispute Lord Advocate v. University of Aberdeen and another, 1963 S.C. 533. saw the University unsuccessfully challenge the notion that the found objects should fall to the Crown.

St. Ninian’s Isle is a small body of land a short distance from Shetland. In 1955 a University of Aberdeen team of researchers began excavation work aimed at finding the ruins of a medieval church. In July of 1958 the 8th century Celtic hoard was discovered. The Lord Advocate then brought an action seeking a declaration that the find belonged to the Crown, while the University and the landowner contested the claim.

In the ensuing legal dispute two arguments were advanced by the University. First, it was argued the feudal common law rule had no application in Shetland and Orkney where land was “udal”, and not subject to the feudal rules, as a result of their acquisition in the 15th century from Denmark and Norway. However the trial judge Lord Hunter held

[A]lthough treasures found in the ground are inter regalia, in the sense of things which the law appropriates to princes and states, and exempts from private use, the right to treasure is a right belonging to the sovereign by virtue of his royal prerogative and as head of the national community rather than by virtue of his position as universal landlord.

This argument was supported on appeal. The second argument urged the court to recognize rights in udal lands as superior to those of the crown. In advancing the argument the University compared treasure trove to undiscovered minerals. However this reasoning proved unsuccessful as well, as “plenary ownership of land carries with it everything a caelo usque ad centrum, including even all moveable articles in or on the land.” As such the ordinary laws of Scotland would apply and objects qualifying as treasure under Scots law “must be precious; they must be hidden in the ground; and there must be no proof of their property or reasonable presumption of their former ownership.”

The case presented interesting legal questions for Scots property law, but from a cultural property policy perspective, the excavation, study and display was a complete success. The site was professionally excavated, the archaeological context was recorded, and the treasure is now on public display in Scotland.

Axes!

Bus driver Tom Peirce has discovered 500 Bronze Age metallic objects with his metal detector in Dorset. The Daily Mail has the story with photos.

The discovery includes 268 complete axe-heads, one of the biggest hoards ever found in Britain. The find, as it constitutes a “prehistoric” metallic object qualifies as “Treasure” and is the property of the Crown.

Archaeologists believe the hoard was buried in the field as some form of ritual offering to the gods.

Grandfather Mr Peirce, from Ringwood, Hants, said: “When we took them out of the ground, some of them were so pristine you would think you had just bought them at B&Q yet they were 3,000 years old.”

There were so many of the artefacts that the pair couldn’t collect them all so returned the following day with fellow detectorist Brian Thomas,75, to gather the rest.

Mr Peirce, who has been a metal detectorist for five years, added: “We went back and dug in another hotspot and found a load more.

“We were very lucky because there was not much else in the field.

“If we had tried another place or walked in a different direction, we’d never have found them.”

Mr O’Connell, 62, who has owned the farm for four years, said: “Within about half an hour of Tom searching, he came rushing over to me looking shocked.

“During the war, a plane had crashed in the same field and for a minute I thought he had found a bomb.

“We went back up there on my tractor and saw the axe heads. I didn’t have a clue what they were – I thought it was scrap metal at first.

“I have owned the farm for four years and had no idea they were up there. It is very exciting.”

The find will now be valued, and the finder and the landowner will split the market value, which is estimated to be £80,000.

It’s this reward scheme under the Treasure Act which encourages the reporting of these finds. The difference between this policy and the typical approach in source nations is it encourages finders to come forward with finds; however it also encourages more metal detecting, which can be seen as a trade-off. The compensation scheme is a pragmatic balancing of interests, which places a higher value on the acquisition of the find, and bringing discoveries to light, rather than leaving objects in the ground. I think it’s an excellent policy for the UK, but it may be questioned whether such an approach would work as well in other nations without the economic resources to fund the scheme.

Those objects which don’t qualify as treasure are subject to the voluntary Portable Antiquities Scheme. Treasure basically includes precious metals (i.e. gold and silver), prehistoric base-metal like these bronze objects, and objects found with them. Since 1997, objects which don’t qualify as treasure can be recorded by the Finds Liaison Officers which have forged connections with local metal detectorists, and have compiled information which has led to a more complete understanding of important sites.

I should note, that it’s my understanding that Greece and Italy both have similar rewards schemes, but not a lot has been written about them to my knowledge. My initial conclusion is these schemes are not funded as well, and have not produced the kind of results the PAS has. I believe both nations reward finders at something like 25% of an object’s value if it is discovered by chance. If any readers have knowledge of these kinds of rewards schemes I’d appreciate a post in the comments.

(Hat tip: Will Anderson).

Questions or Comments? Email me at derek.fincham@gmail.com

Rare Islamic Art Discovered at Auction

This rock crystal Fatamid ewer sold for only £220,000 after being miscatalogued as a French 18th-19th century claret jug with an asking price of £100-200. It is instead a rare and valuable 11th century Fatamid object; the last one which appeared on the market was in 1862 and was purchased by the Victoria and Albert Museum.

Lucian Harris of the Art Newspaper has the story. Is this really the way we should care for one of the world’s rarest examples of Islamic art?

One dealer who described the crystal ewer as a “Holy Grail” of Islamic art ruefully recounted how he had looked at the sale but failed to identify the ewer from the small, indistinct photograph of a “claret jug” on the website of the auction house. “I’ve spent my whole life hoping to find one” he said. “This may be the biggest sleeper ever to appear on the Islamic art market. It seems strange that it stopped at £220,000.”
Questions or Comments? Email me at derek.fincham@gmail.com

The Uneasy relationship between Scholarship and Journalism (UPDATE)


Lee Rosenbaum, arts journalist and fellow blogger at culturegrrl has an Op-Ed in today’s LA Times titled “Make art loans, not war” in which she argues for increased loans from Italy and Greece, a more collaborative relationship between North American “Universal” museums, and an increase in what she calls “citizen archaeology” along the lines of the portable antiquities scheme in England and Wales.

It’s a well written piece, but it strikes me as a compilation of a lot of other scholarship. I suppose it’s a journalists prerogative to take the work of scholars and researchers and reconfigure it in a more digestible (i.e. better written) form, but it does strike me as a bit unfair that she gets to take credit for some ideas which have been persuasively and compellingly articulated elsewhere. I’d like to point out some of the theoretical foundations for the ideas that Rosenbaum articulates.

John Merryman has long been a champion of “cultural property internationalism“, and Kwame Anthony Appiah also made a compelling argument for a similar kind of idea in his recent work, Cosmopolitanism: Ethics in a World of Strangers.

Antiquities leasing is a particularly interesting idea, and it’s one that’s received some interesting attention recently, including an article by Peter Wendel, a law Professor at Pepperdine University, as well as a recent working paper by Michael Kremer and Tom Wilkening who argue from an economic perspective that long-term leasing of antiquities would allow source nations to earn much-needed revenue from their antiquities, but would preserve their own long-term ownership interests. I’ve even argued here that the agreements forged by the Getty, the MFA Boston, the Met, Princeton, and Yale with Peru are essentially leasing agreements between the two sides. Clearly, the custom established by these agreements leads to the idea of leasing as a workable solution to these intractable disputes.

I found Rosenbaum’s argument for citizen archaeology particularly interesting:

More controversially, I believe that source countries should consider training and licensing citizen archaeologists. The antiquities police can’t hope to end all the looting or shut down the black market completely. But if those who make finds are compensated for reporting them and perhaps trained to help excavate them, midnight marauders who mangle masterpieces and destroy archaeological context may become less numerous and destructive. One precedent for the “if you can’t beat ’em, join ’em” approach is Britain’s financial compensation of metal detector-wielding amateurs who turn over significant finds including gold, silver and prehistoric objects to the proper authorities.

This is a subject upon which I’ve written, and what she’s referring to here is the Portable Antiquities Scheme, and the Treasure Act. Their flickr site is particularly interesting, which is where I found the image above of a Roman horseman found in Cambridgeshire last year. The PAS operates only in England, Wales and Northern Ireland. Scotland is not a part of the scheme. Unfortunately the PAS is in danger due to budget restrictions and funding for the London Olympics.

I discuss the PAS and the idea of rewarding finders of objects in some detail in my recent article WHY U.S. FEDERAL CRIMINAL PENALTIES FOR DEALING IN ILLICIT CULTURAL PROPERTY ARE INEFFECTIVE, AND A PRAGMATIC ALTERNATIVE, 25 Cardozo Arts & Ent. L.J. 597 (2007), available on Lexis and Westlaw. I think she may be under a mis-impression regarding the scheme. The PAS encourages voluntary reporting of finds for those objects which fall outside the scope of the Treasure Act. The scheme has created a massive community archaeology project for objects which are found on private lands and do not belong to the Crown. There has always been a requirement in England and Wales to return valuable metal objects to the Crown, however the introduction of the scheme dramatically increased compliance with the law. Based on this, I argue that it’s not enough for a source nation to declare ownership; to effectively protect sites it must also erect appropriate mechanisms to promote compliance with those ownership declarations. When a metal detector finds a valuable piece of gold on private land (detecting on scheduled monuments is strictly forbidden) the finder is entitled to an award, which thus encourages the reporting of finds. However, such a system may not work in all source nations, as you do not want to encourage haphazard looting. As a result the PAS and the Treasure Act are important policy solutions to consider, but are not a cure-all for the antiquities trade.

In short, there has been a great deal of attention placed on the return of objects to Italy, but nearly all these returns, and certainly the most valuable and significant objects, were returned based on substantial evidence, often photographs, which indicate the objects in question had been illegally excavated. The Medici Conspiracy details the investigation. These returns to Italy are the product of a massive investigation of a single commercial stream (albeit a substantial one) from Italy to North America. The challenge for cultural policy makers is to think about the other source nations and other transactions. Rosenbaum rightly points out some of the innovative potential solutions to these dilemmas, I just think it’s regrettable that the Op-Ed forum doesn’t allow her to reference some of the important work she may have relied on to formulate her thoughts.

UPDATE:

Rosenbaum responds to me here, and also posts reactions from a “prominent curator” and David Gill.

Questions or Comments? Email me at derek.fincham@gmail.com

Shelby White Returns 10 Antiquities


In a move that had long been suspected, Shelby White has agreed to return ten antiquities from her private collection to Italy. Elisabetta Povoledo has a summary in today’s New York Times. David Gill, who has long been asking about this collection has a summary and helpful links at looting matters as well. Nine of the objects, including this fresco, were given to Italian authorities earlier this week, while a 5th Century BC Greek vessel will be returned in 2010.

The reason these objects were returned is, of course, that photographs show these objects in highly suspicious circumstances. They were discovered in the massive investigation of Giacomo Medici broken and in some cases still encrusted with dirt. They were almost certainly looted. The broader question again is, have future philanthropists been discouraged from acquiring illicit antiquities? Will Shelby White acquire antiquities differently in the future? As a private individual, it’s difficult of us to expect her to adopt an acquisition policy, but to guarantee more acquisitions like this don’t take place there needs to be a continued push for market reform.

Given the impression given by news reports, I find it highly unlikely that White intended to acquire looted objects; however the market fails to effectively distinguish illicit or looted objects. A better system would take the interest and capital of a collector like Shelby White and ensure a substantial portion of those proceeds go towards future excavations and protection of sites. However the current state of the antiquities trade makes that nearly impossible.

White, and her late husband Leon Levy have long collected antiquities, and supported research and other causes. White gave $20 million to the Met to construct a new Greek and Roman Gallery which opened last year. They have also supported antiquities digs in “Israel, the Aegean, Iran, turkey, the Balkans and elsewhere” according to the NYT piece. White won’t be receiving anything in return for her agreement to relinquish these ten objects, save an agreement that Italy will not seek other objects in her collection. However, that may not be such a bad thing, as Lee Rosenbaum pointed out yesterday by showing what the Met got in return for the Euphronios Krater, where it displayed the three loaned objects, and why perhaps it didn’t make much of an announcement about them.

Questions or Comments? Email me at derek.fincham@gmail.com