Ka-Nefer-Nefer – Illicit Cultural Property

Antiquities Trafficking Discussion at the SAA San Francisco, April 18

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

This 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.

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).
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

St. Louis Art Museum Sues the United States to Preclude a Forfeiture

The Ka Nefer Nefer Mask, acquired in 1998 by SLAM

The St. Louis Art Museum (SLAM) has sued the federal government to preclude it from initiating a forfeiture claim against the Ka-Nefer-Nefer mask. The museum was approached in January by several U.S. attorneys in January, who indicated an intention to bring a forfeiture action against the mask. Civil forfeiture was the legal mechanism under which the Portrait of Wally litigation and subsequent settlement emerged. It is a powerful tool for claimants, which uses the resources of the federal government, and a favorable burden of proof, to pursue claims for objects which may have been looted or stolen.

But in this case, rather than waiting for the forfeiture action, the museum has decided to try to preclude a suit by the U.S. attorneys, arguing that from December-January of 2005-06, the U.S. was a party to several communications regarding questions with respect to the history of the mask. They use as examples, posts and emails sent by Ton Cremers, of the Museum Security Network. He sent at least two emails to Bonnie Magness-Gardiner of the FBI, INTERPOL, as well as James McAndrew at Immigrations and Customs Enforcement (ICE). The Museum’s complaint quotes emails from Cremers, which were published on the Museum Security Network:

“So I should think that if the Egyptian Government lodged a complaint or request with the USA Government and the FBI Crime Team (to which I am copying this), then the Museum would be obliged to answer the questions.”

“The FBI is just waiting for Egypt to file a complaint. A [sic] soon as Egypt files a complaint [sic] the FBI is expected to act.”

“Maarten Raven, a Dutch archaeologist, saw the mask in the Saqqara and is VERY positive that the mask in the SLAM [Museum] is the same as . . .the one stolen in Saqqara . . . .

The SLAM argues in the complaint that the relevant U.S. government officials had knowledge of the potential claim over five years ago, and the five-year statute of limitations period has expired under 19 U.S.C. § 1621. A court will decide whether these emails, and queries the Museum sent to INTERPOL in the 1990’s about the mask are sufficient to have given the U.S. government actual or constructive knowledge of the potential claim. The Museum seeks a declaratory judgment under the Tariff Act that the action is barred by the statute of limitations.

Even if successful, this suit would only preclude a suit by the U.S. government. It would not bless the circumstances surrounding the acquisition of the mask. The mask was acquired in 1998 by SLAM from Phoenix Ancient Art for a reported $500,000. The Museum has attempted to demonstrate its diligence in a number of ways when it acquired the mask.

It sent a letter to Mohammed Saleh, the retired director of the Cairo Museum asking about the mask or the existence of similar objects.
The Museum contacted the Art Loss Register, INTERPOL, and the International Federation of Art Research.
In 1998″counsel for the Museum requested a Swiss attorney to conduct a background investigation of Phoenix, its owners, and Jelinek. Museum counsel received responses from the Swiss attorney on February 18 and March 31, 1998, confirming a Suzana Jelinek resided at the address provided by Phoenix, and confirming Phoenix’s company existence, Dun & Bradstreet rating, and that there were no liens or encumbrances on business property belonging to Phoenix.”
The Museum also sent a letter to the Missouri Highway Patrol requesting a search of the Interpol database.

So these are efforts to look at the history of the object, but certainly are not the best efforts. The Museum did not contact the Supreme Council of Antiquities or the Culture Ministry. The SLAM has told the public and Egypt that they would return the mask to Egypt if they were presented evidence that the mask was looted or stolen, yet Egypt has not presented this evidence. We know that the mask was acquired by the Museum in 1998, and was excavated in 1952. Both Egypt and the Museum have very different versions of the subsequent history of the mask. We are not certain what happened in the intervening years. But given what we know about the antiquities trade we have strong suspicions. The Museum argues the U.S. government has waited too long to pursue its claims that the object was stolen.

Joe Harris, Museum Sues USA Over Mummy Mask, Courthouse News Service, February 16, 2011, http://www.courthousenews.com/2011/02/16/34223.htm (last visited Feb 16, 2011).
Jennifer Mann, Art museum sues to keep Egyptian mummy mask, St. Louis Today, February 16, 2011, http://www.stltoday.com/news/local/crime-and-courts/article_6a5937bc-0ea6-50ca-94ab-aa45697af009.html (last visited Feb 16, 2011).

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

Hawass Elevates Rhetoric

Earlier this week Zahi Hawass made some really over-the-top statements with respect to this object, the Ka-nefer-nefer mask which was purchased from Phoenix Ancient Art in 1998. Some have noted this is an attempt to “Marion True-ize” Benjamin. I’ve discussed in-depth the history of this mask before. Neither Egypt nor the St. Louis Art Museum have been able to give us a complete and definite story of the mask, but I certainly don’t think it is a case where repatriation is called for, even if we accept Egypt’s version of events. Part of the reason for that, is the Egyptian government is either unable or unwilling to adequately document its existing stores of antiquities. If we adopt Egypt’s version of events, the mask was stolen from a storehouse. If so, a properly documented collection register could have been submitted to the Art Loss Register, and when the SLAM considered purchasing the object in 1998, the acquisition wouyld have been halted.

Some commenters have even labelled the SLAM director, Brent Benjamin “controversial” because of the dispute. I think those accusations are over the line, and very unhelpful. Benjamin has done the right thing in this case, and it should be noted the mask was acquired before he took his post at SLAM. Earlier this week in an AP article Hawass called him a “stupid man” who “doesn’t understand the rules here”. I’d like to suggest that Hawass — who perhaps does a lot of great things for Egyptian heritage — has a clouded view of the legal rules in this case. An unhelpful mistake made worse by a proposed Egyptian law which may “give [Egypt] the power to take people to court in Egypt … (Benjamin) will be wanted in Egypt.” Is this the way to conduct international negotiations? What’s more, if the mask had been in an Egyptian storehouse, and it is so important as to warrant this level of rhetoric, why wasn’t it documented by Egypt?

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

Brent Benjamin Appointed to CPAC

The White House announced back in September that President Bush will nominate Brent R. Benjamin to serve on the Cultural Property Advisory Committee for three years. David Gill commented on the appointment, as did Wayne Sayles. Earlier in July, Robert O’Brien, a Los Angeles attorney was nominated as well, though his appointment attracted little notice.

Ton Cremers, an administrator on the invaluable Museum Security Network argues this was an “outrageous” appointment. The reason for the concern is this antiquity, the Ka-Nefer-Nefer mask which I discussed at length last year.

It was stolen from a storehouse in Saqqara sometime between its excavation in an archaeological dig in 1952, and its acquisition by the St. Louis Art Museum in 1998. It may be worth examining this acquisition in more detail. The best summary of the dispute I have found is this 2006 article in the Riverfront Times.

As always, the antiquities trade presents a number of questions. Was Benjamin at the museum in 1998 when it acquired this object? No, he came a year after the mask was acquired. Do his actions with respect to this mask disqualify him automatically from serving on the committee? I’m not sure they do. Does this ongoing dispute between Egypt and the St. Louis Art Museum automatically disqualify Benjamin from serving on the committee? Not according to President Bush, but did the Museum really have clean hands when they acquired the mask? The answer I think is not really.

They purchased it from Hichaam Aboutaam, who has been linked with looted antiquities. The work had been displayed at a Museum in Geneva when the SLAM was considering purchasing the work. However, the museum sent Mohammed Saleh, a retired director of the Cairo Museum a letter asking:

“[We have] been offered a mummy mask of the 19th dynasty and I was wondering if you know of any parallels to this object. I have never seen anything quite like it with a reddish copper-like face probably owing to the oxidation of the gold surface. It is currently on exhibition in the Egyptian exhibition at the Museum of Art and History in Geneva. I would greatly appreciate your thoughts on any parallels you might know of this piece and hope that I might have the opportunity to speak with you in several weeks by telephone about this opportunity.”

Saleh of course was not perhaps the best person in Egypt to contact about the mask. Shouldn’t someone on the Supreme Council on Antiquities have been better positioned to handle this request? Unfortunately this is the shady kind of enquiry which can pass for thorough provenance research in the antiquities trade. I think its likely perhaps that the SLAM was not too eager to look to deeply into the history of this object, for fear they would be unable to acquire it. The museum was told by the seller that the mask was seen at an antiquities dealer in 1952, and it remained in the ubiquitous “Swiss Collection” for the next 40 years. An expert hired by the museum, Peter Lacovara, reasoned that the mask was probably awarded to the excavator after the 1952 excavation. This would account for its appearance at a market in Brussels soon after, though refuting that fact is nearly impossible at this point.

Egypt has a tenable claim perhaps, but this is a close case. I’m not aware of the specific steps Egypt has taken in response. They have seemingly argued that the mask was stolen at some point from an antiquities storehouse. Now, its their cultural heritage and they’re free to do with it what they please, but Egypt can be criticized on two accounts. First, is it really the best idea to have a unique piece like this mask just sitting in a warehouse for fifty years? Second, had Egypt documented its collection and its holdings more completely, they would have had a much stronger legal and ethical claim.

In any event, nobody looks really good in this dispute. Not the museum, the Phoenix gallery, nor Egypt. But I’m not sure Benjamin, by merely refusing to return the mask outright to Egypt has disqualified himself from serving on the CPAC, which it should be mentioned is comprised of individuals from all the disparate heritage interest groups, including archaeologists. Also, the CPAC has never refused a request made by a nation of origin.

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