Author: Derek Fincham

Looting and Criminal Sentencing in the Four Corners

The Butler Wash Ruins near Blanding, UT

More and more of the Four Corners antiquities cases are entering the sentencing phase, and I want to highlight two profoundly different reactions.

First, Kimberly Alderman (an Assistant Clinical Professor at the University of Wisconsin Law School) argues:

It’s readily apparent that federal prosecutors overcharged the cases in an attempt to justify the immense resources that went into the investigation. One has to wonder if that contributed to the suicide death of Dr. James Redd, who in his medical practice served less advantaged communities in Utah. . . . Illicit excavation is only one misuse of “sacred artifacts.” Another is to use them to justify a witchhunt that serves only government propaganda.

Taking a very different view, Cindy Ho of SAFE argues instead that:

Receiving probation of three- and two- years and a fine of $2,000 and $300 respectively, Jeanne and Jericca Redd joined a number of other defendants who receive a mere slap on the wrist for their contribution to the destruction of cultural heritage and human remains.

In response, SAFE sent a letter (see full text below) to Judge Waddoups expressing our disappointment that the sentencing guidelines were not appropriately followed. Most importantly, that “the leniency shown to the Redds sends the message that such laws are unimportant or do not apply to the Four Corners region, and will encourage rather than deter looters.” We did not receive a response from the Judge.

Stronger sentencing and custodial prison terms are poor measures for how seriously judges and the legal system take the looting of ancient sites. And placing the blame squarely on the shoulders of the sentencing Judge here misses the point I think. If you are really upset at the sentences (and I’m not sure you should be) blame should also be placed on the Federal Prosecutors. An axiom of criminal law every law student learns very early is that when defendants plead guilty, they will always receive a decreased sentence. Circumstances such as the personal circumstances of a defendant, their contriteness, and the violent or serious nature of the crime are also considered. One would be hard pressed to imagine a more sympathetic pair of defendants—a Mother and Daughter whose Father and Husband had committed suicide in the wake of the indictment. The U.S. Attorney’s in this case pursued a strategy of seeking guilty pleas for many of the defendants, particularly as their witness (and two of the defendants) committed suicide.

These sentences are about the best that could be hoped for. These are not the first prosecutions in the area, but unquestionably these are exceedingly difficult crimes to prosecute and investigate for two reasons. First, the sites are remote and catching the looters in the criminal acts will always be a difficult and expensive proposition. Second, there is noting about the antiquities market which encourages giving the history of objects. Without a consistent way to adequately differentiate licit from illicit objects, the black market will continue to be profitable. Archaeologists and heritage advocates need to ask themselves a hard question: is prohibition working? We can point fingers at collectors and dealers, but this ‘superindictment‘ in the Four Corners region is what enforcement will look like for the foreseeable future.

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

ARPA Research Assistance

Carolyn Shelbourn at the School of Law at the University of Sheffield in the United Kingdom is looking for information on offences under the Archaeological Resources Protection Act of 1979.    You can find
out some more about her and her research here:

http://www.sheffield.ac.uk/law/staff/academic/cshelbourn

She would welcome information on any ARPA cases, but is particularly keen to contact archaeologists who have been involved  following an ARPA offence, so that she can compare their experience with that of archaeologists in England. All information will be treated in confidence and individual respondents will not be identified unless you give her express permission to do so.

She has the following questions:

1. ABOUT YOU
(a)     Your name
(b)     Occupation
(c)     Have you attended any training course on ARPA and its enforcement and if so what was this training?
(d)     Contact details if you are happy for me to contact you for more information

2. THE OFFENCE
(a) What kind of site was involved?
(b) What was the nature of the ARPA offence?

3.  EVIDENCE FROM CRIME SCENE
(a) Was evidence taken from the scene of the offence?
(b) Who collected this evidence?
(c) What kind of evidence was collected?

4. LEGAL PROCEEDINGS FOLLOWING OFFENCE
(a) Was the offender prosecuted?
(b) Was a civil penalty sought?

5. INVOLVEMENT OR ARCHAEOLOGISTS IN PROCEEDINGS
(a) Did you  or a colleague write a statement of archaeological value?
(b) Did you or a colleague  give evidence in person at the hearing?
(c) Did you receive assistance in preparing for this  appearance and if so what was this and  who gave it?
(d) Did you feel confident/well prepared when giving evidence?

6. THE OUTCOME
What was the outcome of the proceedings?
(a) Conviction?
(b) If yes what was the sentence imposed?
(c) Civil penalty?
(d) If so what was the sentence imposed?
(e) Forfeiture?
(f) Other penalty?

7. ARE THERE ANY COMMENTS YOU WISH TO MAKE?


Her e-mail address is  c.shelbourn@sheffield.ac.uk. Please put ‘ARPA
questionnaire’ as the subject of the e-mail.

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

Footnotes

Medici, Getty, BP: Are museums run on “tainted” money?
Questions or Comments? Email me at derek.fincham@gmail.com

Miller on the Doctrine of Discovery

The Doctrine of Discovery was an international legal principle which allowed European settlers to claim any lands they ‘discovered’ from the indigenous peoples living there.This attitude, which seems shocking today, lies behind much of the call for restitution of objects and cultural heritage today. Robert J. Miller (Lewis & Clark Law School) has posted “Christianity, American Indians, and the Doctrine of Discovery.” 

The European countries that explored and colonized North America utilized the international law Doctrine of Discovery to claim the sovereign, property, and human rights of Indigenous peoples. Discovery was developed primarily in the fifteenth century by Spain, Portugal, England, and the Church and was designed to control the acquisition of non-European lands. The assumed superiority of European religions and civilizations played a major role in justifying Discovery. Starting with the fifteenth century papal bulls and the later English Royal charters, the primary goals of colonization were alleged to be “propagating Christian Religion” and bringing “human civility” to the “pagan,” “heathen,” “Infidels and Savages” who “yet live[d] in Darkness and miserable ignorance of the true Knowledge and Worship of God.” The United States Supreme Court expressly adopted the Doctrine of Discovery in 1823 in Johnson v. M’Intosh and expressly relied on Christian religion and Euro-American civilization to justify its decision. The goals of, and the justifications for, Discovery continued to be part of United States Indian policy and Manifest Destiny until nearly the end of the twentieth century.

(via)

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

"He really loves art. . . "

This is what an art thief looks like.

“. . . but also the money that he can get from it”.

So says an unnamed source describing the notorious Stéphane Breitwieser who stole 240 works of art, went to prison, wrote a memoir and has been arrested again in his home:

At Breitwieser’s home, police discovered about 40 paintings, three sculptures, and a tapestry, French newspaper Le Parisien reports. At Breitwieser’s mother’s place, cops also found a landscape by a Brueghel pupil that had been stolen from a Brussels museum. Several valuable objects, including chandeliers and pocket watches, were also discovered in the pond next to Breitwieser’s mother’s house. In the past, she destroyed several paintings in order to protect her son, and also hid his stolen artworks along a highway, in a canal, and even in a neighbor’s chicken coop.

  1. Police Nab Europe’s Most Notorious Art Thief — And His Mom, Too, ARTINFO France, April 25, 2011, http://www.artinfo.com/news/story/37537/police-nab-europes-most-notorious-art-thief-and-his-mom-too/ (last visited Apr 25, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

Footnotes

A Rothko has been found, Christie’s expects to auction it for $18 million

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

More War, More Looting

Jason bringing Pelias the Golden Fleece

From Jason and his argonauts to Thomas Bruce, seventh Earl of Elgin, cultural takings are nothing new. So argues Richard J. Evans—Professor of History at Wolfson College, Cambridge, and Chair of the U.K. Spoliation Advisory Panel—in a terrific long-read that argues the looting of heritage during wartime continue despite attempts to police conflict.

It is a beautifully written historical summary of wartime looting, which puts the ancient world, modern unrest, and World War II in historical context. I really recommend giving the entire piece a read, but here are some highlights:

The history of [looting] goes back far indeed, beginning perhaps with Jason and the Argonauts looting the Golden Fleece; and it continued with the Romans’ habit of looting art from conquered cities in order to parade it through the streets of Rome in the ceremonial procession of the Roman triumph before putting it on display in the Forum.
. . .
ELGIN’S ACTIONS reflected his belief that educated Englishmen were the true heirs of classical civilization, whose legacy permeated the minds of educated elites across Europe. This influence was nowhere greater than in revolutionary France, where Napoleon’s victorious armies began concluding a series of treaties with conquered states across Europe, notably the Treaty of Tolentino, signed by the pope in 1797, that allowed them to appropriate artworks to stock the Louvre Museum, founded in 1793.
. . .
It is vital to learn the lessons of the Second World War and put effective arrangements in place in advance of future fighting to rescue and restore cultural objects and prevent looting. Such arrangements were not made in Iraq in 2003, and the devastation was vast. The international community cannot prevent looting and destruction in the course of civil unrest, but it can take steps to minimize it in cases of interstate conflicts. Above all, the art and museum world needs to be more vigilant in monitoring the trade in looted goods in the wake of conflicts such as those in Iraq or Afghanistan, and law-enforcement agencies need to step in with sanctions against those who encourage—or benefit—from it. In a globalized world, every state has, as the Hague Convention urged more than a century ago, a duty to act as the trustee of the culture of all nations, not just its own.

  1. Richard J. Evans, Art in the Time of War, The National Interest, May-June 2011, http://nationalinterest.org/article/art-the-time-war-5163 (last visited Apr 19, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

An Amicable End to a Nazi-era Spoliation Claim

Some museums do unilaterally do the right thing. I have been forwarded on a press release from the Museum of Fine Arts in Boston regarding the purchase agreement for four tapestries which had been held by the museum since the 1950s. A provenance search by the museum revealed that the tapestries had been included in a forced sale in 1935. Jakob and Rosa Oppenheimer had been forced to sell the works. In 2010 The MFA contacted the successors of the Oppenheimers and a settlement was recently reached. The museum’s press release is embedded below:
MFA_Barberini Textiles Press Release

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

Footnotes

Is this Maya style statue fake?
Questions or Comments? Email me at derek.fincham@gmail.com

Urice and Adler on the "Disjunction between Cultural Property Policy and Law"

Stephen Urice and Andrew Adler have posted a working paper titled “Resolving the Disjunction between Cultural Property Policy and Law: A Call for Reform“. In the piece they continue to point out what they call the “increasingly lawless” cultural property policy in the United States.

Here is the abstract:

Cultural property policy in the United States has become increasingly lawless, for lack of a better term. In recent years, the Executive Branch has aggressively restricted the movement of cultural property into the United States, but it has repeatedly done so without regard for constraining legal authority. The result is a troubling disjunction between the Executive Branch’s current cultural property policies and the existing legal framework established by Congress and the Judiciary. We document that disjunction in this Article.
We explain, for example, how the Executive Branch has recently repatriated an Egyptian sarcophagus and an antique French automobile to their respective countries of origin, but disregarded well-established judicial authority in the process. We explain how the Executive Branch has similarly sought to repatriate cultural objects to Italy, Peru, and Southeast Asia by relying on statutory authority that Congress plainly never designed for such a purpose. And we explain how the Executive Branch has imposed comprehensive import restrictions on cultural property from around the world without satisfying all of the statutory requirements mandated by Congress.
In addition to documenting this disjunction between policy and law, we situate it in its broader context. We submit that the disjunction reflects that the legal framework is outdated. That framework is the product of the 1970s, when the cultural property field was still forming, and it has not incorporated the dramatic political and normative developments of the last three decades. We further explain how the Executive’s willingness to disregard statutory constraints raises serious and unresolved separation of powers concerns. This precarious constitutional dynamic undermines the democratic process and invites arbitrary policymaking. We therefore argue that statutory reform is necessary to resolve the disjunction, modernize the legal framework, and restore the rule of law. We conclude by offering suggestions for reform.
Questions or Comments? Email me at derek.fincham@gmail.com