Antiquities Trafficking Discussion at the SAA San Francisco, April 18

mummy

I’ll be presenting a short paper on the Ka-Nefer-Nefer forfeiture case at the Society for American Archaeology Annual meeting this Saturday morning. Our panel is scheduled from 8-10.15 A.M. in the Golden Gate 4 room of the Hilton San Francisco Union Square.

Here are the other scheduled papers:

Antiquities, drugs, guns, diamonds, wildlife: toward a theory of transnational criminal markets in illicit goods
Simon Mackenzie*

The Kapoor Case: International collaboration on antiquities provenance research
Jason Felch

Alternative Strategies in Confronting Looting and Trafficking in Defense of Peruvian Portable Heritage
Alvaro Higueras

The Ka Nefer Nefer and Federal Intervention in the Illicit Antiquities Trade
Derek Fincham

Geospatial strategies for mapping large scale archaeological site destruction: The case from Egypt
Sarah Parcak

Bones of Contention: Further Investigation into the Online Trade in Archaeological and Ethnographic Human Remains
Duncan Chappell & Damien Huffer

The ruin of the Maya heartland: successes, failures, and consequences of four decades of antiquities trafficking regulation
Donna Yates

Syria: Cultural Property Protection Policy Failure?
Neil Brodie

Morag Kersel will also be presenting a paper on her project Follow the Pots

Mo Rocca on Repatriation

mummyThis is a slow time of the year for original reporting, and one popular set of stories for editors near the holidays are reports on art theft, Museums, and repatriation. This video rises above the usual and gives some serious discussion to a wide audience: Mo Rocca reports for CBS on repatriation and repatriation claims. Of particular interest will be the comments of Max Anderson at the Dallas Museum of Art. It must be said that he does not appear to be very sympathetic to most claims, and he seems to suggest repatriation is useful mainly as a tool to help museums collect.

Will US Attorneys Appeal after latest Ka Nefer Nefer setback?

A judge has dismissed the federal government’s request to reconsider an earlier ruling dismissing the government’s forfeiture request for the Ka Nefer Nefer mask currently on display at the St. Louis Art Museum. Rick St. Hilaire notes the U.S. Attorney must now make the decision whether to appeal the ruling on to the 8th Circuit. 


The problem with the government’s initial case—at least in the district court’s view—was the government failed to allege the particular circumstances under which a crime took place as the mask left Egypt. This problem can be examined by referencing recent case law broadening the principle that looted and smuggled objects are considered tainted when they leave their country of origin, even in the absence of direct evidence of wrongdoing. I’m thinking for example of the Barakat ruling in the English High Court which offered claimant nations a broader platform of potential laws with which a nation of origin can claim theft. 


But in this case the federal prosecutors had a difficult prospect as Egypt was unable to offer enough evidence establishing a crime had been committed. So despite the research the SLAM conducted when it acquired the mask in 1998, the government was unable to offer enough to convince a judge to forfeit the object and force SLAM to make its case. It is an open question whether the district court would have taken such rulings on board, likely not. But an appeals court is in a more favorable position to make broader inquiries in the law based on policy and foreign authority. 

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

US Government’s Claim to Ka Nefer Nefer Mask Dismissed

The Ka Nefer Nefer Mask will be staying in St. Louis for now

The Ka Nefer Nefer mask, subject of two lawsuits in federal court, seems likely to stay in St. Louis for the near future. On Monday the U.S. District Court dismissed the U.S. Government’s forfeiture claim for the mask, as Rick St. Hilaire reported. The St. Luis Art Museum also has a parallel declaratory judgment action seeking to prevent the government from pursuing a forfeiture in the future.

You can generally read the tea leaves in the first few lines of a court opinion, and when the court wrote “the Government boldly states that it seeks the forfeiture of all rights, title and interest in a 3,200 year old Egyptian Mask . . .” you have a pretty good idea that the U.S. attorney was not able to convince the court to forfeit the mask. It most certainly was involved in a crime, yet the government was unable to allege enough “circumstances” surrounding the mask’s journey from Saqqara in Egypt in 1952 to the antiquities market some time later.

The government undercooked its legal analysis of the illegal activities giving rise to a forfeiture in its first forfeiture attempt here. For now it may amend its complaint. If it does, it should perhaps note that Egypt has laws establishing ownership of its antiquities, and there is no set of circumstances under which this mask could have rightfully left Egypt. Perhaps noting that may lead to a different result this time around.

The Government cannot simply rest on its laurels and believe that it can initiate a civil forfeiture proceeding on the basis of one bold assertion that because something went missing from one party in 1973 and turned up with another party in 1998, it was therefore stolen and/or imported or exported illegally.

The court was concerned that the government failed to establish precisely how the mask became stolen property. There is plenty of precedent on point for this legal principle, but the lawyers for the government failed to include enough of it in the complaint. Now the U.S. attorneys will have to return to the drawing board and establish a firmer legal framework for the illegal removal of the mask from Egypt. Making the government’s task more difficult, is the lack of evidence provided to them by Egypt establishing how and when the mask was stolen. As a consequence, if I was working on the case, I’d essentially treat it like an antiquities looting case. The theft itself is lost to history. But you don’t need those facts, just enough to put the  burden back on the museum’s case to show how far back its chain of title can go.

The museum will likely respond that it had no reason to believe the Aboutaam brothers were antiquities dealers to avoid in 1998. Was it established that they routinely dealt in looted objects in 1998, even if that can be established now? The SLAM conducted a search, and while certainly not ideal, it posed questions to officials in Egypt. For lots of background on the mask, see here.

We can ask whether the Museum should do the right thing, but the government attorneys had an opportunity to force them to and failed to allege enough concrete circumstances in its complaint to trigger what would have been a very uncomfortable forfeiture proceeding for the museum—one that coupled with reasonable public pressure exerted by Egypt would have certainly made continued possession of the mask in St. Louis untenable.

Lee Rosenbaum has posted a .pdf of the opinion:
  Ka-Nefer-Nefer Opinion

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

U.S. Initiates Forfeiture

The Mask on Display in St. Louis

As expected the United States has initiated a civil forfeiture action over the Ka Nefer Nefer mask purchased by the St. Louis Art Museum in 1998. The government holds a number of important advantages in these forfeiture proceedings, which is why the Museum brought a suit last month to preclude a forfeiture, based on a lapsed five-year limitations period. As the government’s complaint explains, the mask was professionally excavated, so this is not a case of looting and destruction of context. Rather the mask was either stolen later or was given to one of the archaeologists working at the site.

The government’s filing outlines what it suspects happened next: that the mask was stolen sometime between 1966, when it was shipped off to Cairo for an exhibit, and 1973, when the Egyptian Museum in Cairo ran an inventory and discovered it missing. Box number 54, in which it had been packed, was empty. 

In 2006, Egyptian officials learned the St. Louis museum had bought the mask from Phoenix Ancient Art, in New York. 

The museum has said it thoroughly researched the mask’s ownership history before buying it, and was given no indication that there were questions about how it arrived in the U.S. 

The museum’s research showed the mask was part of the Kaloterna private collection during the 1960s, before it was purchased in Switzerland by a Croatian collector, Zuzi Jelinek, who then sold the mask to Phoenix Ancient Art in 1995. 

It also maintains in its lawsuit that the government’s statute of limitations for seizing the mask has expired.

  1. U.S. demands art museum hand over Egyptian artifact | Reuters, Reuters, March 16, 2011, http://www.reuters.com/article/2011/03/17/us-museum-mask-idUSTRE72G06E20110317?feedType=RSS&feedName=domesticNews (last visited Mar 17, 2011).
  2. Jennifer Mann, Government sues to seize St. Louis museum’s mummy mask, St. Louis Post-Dispatch, March 17, 2011, http://www.stltoday.com/news/local/metro/article_98d72244-9976-5b8a-a73d-5c211c6a771b.html (last visited Mar 17, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

Why Get so Worked up over the Ka Nefer Nefer Mask?

I’m a bit puzzled by all the criticism being directed at the St. Louis Museum of Art. The looting of antiquities destroys archaeological context, but the Ka Nefer Nefer mask was not looted. Both the Museum and those who would have the mask returned to Egypt agree that the mask was professionally excavated in 1952. Egypt has claimed the mask was stolen from a storehouse at some point, while the Museum argues it researched the provenance and found no information to indicate it had been looted. One may argue that the acquisition procedures of museums are generally lacking. And we can certainly criticize the imperfect procedures implemented by the museum to ask questions of the mask in this case—though they did ask some questions in good faith. Though there was no export permit for the mask, but I’m not sure that justifies the criticism of the museum for its suit against the federal government. The museum is only asserting that the Federal government sat on its hands and waited too long to bring a forfeiture claim. This is a perfectly reasonable cause of action, particularly given the enormous benefits to the government and the claimant when a civil forfeiture is brought.

If you are upset that no claims were brought earlier, why not criticize the U.S. government for waiting so long to bring a forfeiture proceeding? I think one of the frustrating things about these repatriation issues are what I’d call the tone deaf nature of much of the rhetoric irrespective of the merits of the claims. This claim is not the same as every other repatriation claim, they all have their strengths and weaknesses. And though I’d agree that many objects need to go back, not all of them do. Universal repatriation should not be the preferred remedy. The Museum here certainly could have checked closer into the history of the mask, but Egypt also didn’t realize the mask was missing. As Mark Durney pointed out, this might be a good reason for renewed emphasis on documenting objects which are in storage. If you don’t, it will be difficult to leverage the trade into ending the sale of objects completely, and that argument loses persuasiveness when the same rhetoric is used for each and every dispute, irrespective of its strengths and weaknesses.

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

"The mask was not excavated in Missouri"

Catherine Sezgin interviews Ton Cremers for the Online Journal of Art Crime and asks about the Ka-Nefer-Nefer mask. He is named in a suit by the St. Louis Art Museum to prohibit U.S. Attorneys from bringing a forfeiture action for the object. On the Museum Security Network he argued:

There is NO doubt whatsoever that this mask was stolen from a storage is Saqqara. One does not need to be suprised that the infamous Aboutaam brothers were the ones selling this mask. They are ‘renowned’ for trading in dubious antiquities without any provenance. In this case they just made up a fake provenance: supposedly the mask had been part of a Swiss private collection. Yes, Switzerland again…

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