Student Note on Pre-Columbian Antiquities

Pre-Columbian antiquities from the Rufino Tamayo Museum in Oaxaca
Pre-Columbian antiquities from the Rufino Tamayo Museum in Oaxaca

The Texas Law Review has published a student note by Ryan Phelps titled  Protecting North America’s Past: The Current (and Ineffective) Laws Preventing the Illicit Trade of Mexican Pre-Columbian Antiquities and How We Can Improve Them, 94 Tex. L. Rev. 785 (2016).

The piece is noteworthy mainly due to the prestige of the Journal, as the comment largely consolidates the arguments for advocating for more policing of the antiquities trade at the source and educating the buyers of illicit material at the market end.

From the Introduction:

With the problem at hand, this Note suggests that the current laws and recourses available that protect and deter the theft of Mexican pre-Columbian antiquities and these artifacts’ illegal import into the United States are ineffective at their goal of reducing these types of crime. Instead, a new policy is recommended that focuses on the active preservation of these antiquities before they are looted in the first place. This policy will rely primarily on educating the people of Mexico and the United States about the damage that this illicit trade causes and the penalties for those involved in this destruction. Specific groups of people will be targeted for this education, including people living in rural areas who may find or help transport stolen antiquities, border agents and tourists who may discover the antiquities as they are smuggled, museums and dealers who often serve as intentional or unintentional fences for these artifacts, and people involved in international transportation who may witness or take part in the trade.

A Hollow Victory for Mexico in the Barbier-Mueller Sale

Lot 137, which did sell,
for 2,001,500 Euro

On Friday and Saturday in Paris Sotheby’s auctioned a number of allegedly Pre-Columbian objects from the Barbier-Mueller collection.

Nord Wennerstrom reports that many of the lots sold for less than the low estimate, and 79 of 151 lots failed to sell. His take: the auction ended as “inauspiciously as it began”. Sotheby’s lists its sale results here.

The auction generated considerable interest last week. In anticipation of the sale Mexican officials protested and noted: “Of the 130 objects advertised as being from Mexico, 51 are archaeological artifacts that are (Mexican) national property, and the rest are handicrafts”. In this case “handicrafts” is a very polite way of pointing out that some of the objects are fakes or forgeries. In this case the sale continued, but the considerable notoriety surrounding the sale certainly diminished the market value of these objects, and in many cases made these objects too toxic perhaps for some buyers.

French diplomats last week did not intervene in the sale noting that none of the objects had appeared on the Interpol database, or the “red list” published by the International Council of Museums.

Sotheby’s Paris on its website stated the collect was started in 1920 by Jose Mueller. His son-in-law Jean Paul Barbier-Mueller broadened the collection. Sotheby’s described Barbier-Mueller as “a great aesthete and man of culture”.

Here’s an extended quote from the overview given by Sotheby’s:

In 1908 and 1909 Josef Mueller acquired major works by Hodler and Cézanne in Paris. While initially focusing on Western masterpieces of universal appeal, he soon became attracted by important works of Pre-Columbian art, his first purchase being an Aztec ‘water goddess’ in Paris in 1920. His son-in-law Jean Paul Barbier-Mueller, a great aesthete and man of culture, brought this high standard of collecting to other fields, such as African Art, Oceanic Art and Cycladic Art. His dedicated focus has resulted in the well-deserved reputation for excellence that the collections have today. Mr. Barbier-Mueller and his wife Monique Barbier-Mueller (Josef Mueller’s daughter), who has pursued modern and contemporary art, have achieved one of the foremost collections of art in private hands, one defined by their sophisticated knowledge and refined eye.

Some of this collection had been in existence since the early part of the 20th century. But not all of it. In a case like this, Mexico and other nations of origin have a limited range of options here. Their best way to attack the sale of these objects is exactly what it did. Make a public protest over the sale, and enlist the power of the press to reduce the market value of these under-provenanced objects. We are unsure now what will happen to the objects which did not sell. Contrast this situation with what might have happened had this auction occurred in the United States.

Increasingly unprovenanced objects are being regulated by Federal prosecutors, at least in New York and St. Louis. We certainly don’t know if a forfeiture would have happened in this case, or indeed if that was even a consideration in the decision to sell these objects in Paris rather than New York. But it is yet another example of the complex web of legal rules and norms which apply to the antiquities trade.

  1. Mark Stevenson, Mexico demands Sotheby’s halt auction of artifacts, The Washington Post, March 23, 2013, http://www.washingtonpost.com/entertainment/mexico-demands-sothebys-halt-auction-of-artifacts/2013/03/21/e5d18316-9274-11e2-bdea-e32ad90da239_story.html (last visited Mar 25, 2013).
  2. Mike Boehm, Mexico trying to stop antiquities sale at Sotheby’s in Paris, Los Angeles Times, March 22, 2013, http://www.latimes.com/entertainment/arts/culture/la-et-cm-mexico-wants-to-stop-sothebys-precolumbian-art-auction-20130321,0,5085665.story?track=rss (last visited Mar 25, 2013).
Questions or Comments? Email me at derek.fincham@gmail.com

U.S. Repatriates 4,000 Looted Antiquities to Mexico

Yesterday U.S. law enforcement officials returned 4,000 object to Mexico. They are the fruit of 11 different investigations in cities like El Paso, San Antonio, Fort Stockton, Phoenix, San Diego, Chicago and Montana. These kinds of ‘art on the table’ news conferences are quite common. But I admit to feeling conflicted about them. On the one hand they certainly speak to the degree of seriousness with which ICE agents and the Federal Government take these crimes. But as with any crime that becomes federalized like this, the incentives are I think primarily geared towards rewarding these big investigations and successful returns. Yet the underlying problems endemic to the antiquities trade itself are not treated or targeted. It is an important step, but also the more of these returns I see (and there are a lot of them) the more frustrating it becomes as well. Because these investigations target the objects. There is no mention of arrests, prosecutions or of much of anything which would produced sustained compliance on the part of the art trade.

In fact after reading the news release I feel more pessimistic about the mass of objects which are being smuggled up from the south. Consider that three statues were smuggled in by a migrant worker on a bus; another clay statue was hidden in luggage in El Paso; another statue was hidden in the dash of a vehicle; a grinding stone was found in another vehicle; another millstone was found in the back of a truck; and the list goes on. These are straightforward and low-cost means to smuggle the objects into the country. We cannot I think expect ICE agents to catch every smuggled object found in luggage, trucks or cars. The trade itself and art buyers need to step up at some point and correct a market which routinely accepts these looted and stolen objects. But that kind of sober reflection on these recoveries is not to be found in the statements of U.S. and Mexican officials. From the ICE news release:

“The plundering of cultural property is one of the oldest forms of organized cross-border crime and has become a worldwide phenomenon that transcends frontiers,” said HSI Assistant Director Janice Ayala. “The teamwork and cooperation that exists between ICE’s Homeland Security Investigations and our Mexican law enforcement counterparts, as well as with U.S. federal, local and state law enforcement agencies made it possible for us to secure these cultural artifacts and to ensure that they are returned to the government of Mexico. HSI will remain committed to combating the looting and trafficking of Mexico’s cultural treasures.”
Consul General of Mexico Jacob Prado stated, “The restitution to Mexico of more than 4,000 archaeological pieces, which were seized by ICE’s Homeland Security Investigations special agents, is proof of the excellent collaboration that exists between Mexico and the United States, and attests to the relevance of the institutions and legal framework that our authorities have developed to successfully address the many different issues of our bilateral agenda.” Consul General Prado also expressed the gratitude of the government and the people of Mexico to the six HSI offices involved in recovering the artifacts, “for their support to ensure the restitution of these archaeological pieces, which are part of the cultural heritage and the historical memory of the people of Mexico.”

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

Moctezuma’s Crown

This Headdress the “Mona Lisa of anthropology” may be returning to Mexico for the first time in 500 years

Mexico and Austria may be nearing an agreement which would allow this stunning crown to be returned to Mexico. This feaethered headdress, or kopilli ketzalli currently sits in the Vienna Museum of Ethnology. It was sent there by Hernán Cortés in the mid 16th century as a gift to Charles V, the Kindg of Spain and the Holy Roman Empire. There are over 400 Quetzal feathers in the headdress. The gold helmet attached to the feathers was melted down. But there are obstacles to the return of the headdress:

Two issues need to be resolved before a loan can be arranged. The first hurdle is legal, since there is a long-standing Mexican law that forbids the re-export of any archaeological material from the country. Initially it was hoped that the headdress would not be regarded as archaeological, but the Vienna museum needs assurance that its return would not be blocked. A special presidential decree on the headdress was discussed, but this might not be legally binding on future presidents. The Mexican government is now considering a change in the law on the re-export of antiquities.
Austrian and Mexican conservators also need to agree to the loan. The headdress was remounted on a display board in 1992 and cannot be easily detached. Conservators are reluctant to do so until a decision has been made on a new backing. This will depend on whether it has to be fit to travel. The feather vanes are fragile so a vibration-free case would have to be devised.

  1. Martin Bailey, Heading back to Mexico a step at a time, The Art Newspaper, March 10, 2011, http://www.theartnewspaper.com/articles/Heading+back+to+Mexico+a+step+at+a+time+/23243 (last visited Mar 10, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

Barford on the Sale of Egyptian Antiquities

Archaeologist Paul Barford has an interesting post on the sale of antiquities in Egypt.  He’s had a number of interesting posts on his time on an excavation there, but I was really interested in his post Monday.  He talks about his quest for some fake antiquities, and was offered some shabtis.  These small funerary figurines were placed in graves, perhaps as servants meant to serve the deceased in the afterlife.  Pictured here are shabtis on display in the Louvre.  Barford states the “current modes of no-questions asked collecting are directly contributing to the creation of the market which is the motor behind the looting of archaeological sites for saleable objects.”  I think I agree with him that buyers are fueling the looting of sites.  But there are other contributing causes:  the paucity of resources in these areas for law enforcement; the desire by visitors and tourists to buy these objects; and the lack of site security when archaeologists leave.  The answer is responsible scrutiny of these transactions, but also the importance of outreach and education of these buyers and the local communities about the value of responsible stewardship of these sites and objects.       

Barford writes:

Last night in a Luxor sidestreet on my quest for the best or the most bizarre fake artefacts, in a grubby shop I’d overlooked before, I was offered several shabtis and shabti fragments which I am pretty sure were not fakes. All the dealer offered as provenance was “here and there”. After I had correctly identified the fakes he’d mixed in to test whether his customer knew his onions, he showed me a lot more. I told him that in his country there was a new law under discussion which would make merely having them in his shop punishable by up to twenty five years. I was not terribly surprised that he would not show me the “authentic scarabs” after that. Those suppliers “here and there” who sold them to him knew that these items were saleable to visiting foreigners.

The day before, I was walking across the palace site at Malkata, showing it to some colleagues, and had just replaced the cardboard “protecting” the wall paintings when a guy in a dark robe came running up. “Closed, closed, zis site he closed” he panted. He was presumably the “gafir” who was guarding this site for the SCA. Once he realised he could not make cash out of showing us the wall paintings which I’d just shown people, he then pulled out of his pocket a blue-painted sherd, the “Armarna ware” which I have seen on the Internet being sold at 300 dollars a piece and asked whether I would like to “see” it. It looked remarkably like the one I’d found there a few weeks earlier and put under a nearby bush to protect it from the sun and weather. I told him where he could put it. Interestingly this was after I had pulled out the photo-identity document issued by the SCA authorising me as an archaeologist to visit sites like this.

 . . .

What is interesing about this is Malkata is littered with pottery, tonnes of it. Most of it from the Eighteenth dynasty, including some nice red wares (lovely colours), slipped ware, fine bowls, burnished ware. Yet neither of the would-be vandors had picked any of this up, they knew their market, the blue-painted pottery is coveted by western collectors and that is what they were stealing from the site to make a bit of cash. . . . 

I’ve had similar experiences at ancient sites as I’m sure many of you have.  Pictured here is a man selling small stone ‘zapotec’ figurines at Monte Alban in Oaxaca Mexico this summer.  I don’t have the expertise required to tell if these are fakes or not.  I’ve always assumed, as Barford did, that these locals are selling fakes.  

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

The Rufino Tamayo Prehispanic Museum: A Museum to Thwart Illegal Artifact Traders

Over the summer we were able to take a vacation for 10 days to catch up with some friends in Oaxaca, Mexico; an outstanding city and region with a lot of great culture (particularly food) to offer.  
During the trip, we visited the Rufino Tamayo museum in central Oaxaca.  It is a museum devoted to  indigenous culture, created from Tamayo’s personal collection, in an attempt to prevent the illegal trade in antiquities. There are terrific terracotta pieces which depict village life or sporting events.  There are also headdresses and other pieces of jewelry.  In one of the rooms, the museum states in a variety of languages:
This museum is dedicated to the millenary art which flourished in the area call now-a-days the Republic of Mexico.
Art entirely inspired (with the exception of occidental Mexico) by pre-Columbian religions and myths.  It represents the deified forces of nature:  the sun, the wind, the water and a multitude of other natural phenomena.
But if in our time the pieces exhibited in the niches of this museum impress its visitors, it is not for religious feelings, because the religions of ancient Mexico a long time ago have been forgotten.  Reather, they are moved by the aesthetic rank of the works, their beauty, power and originality.
It is the first time that a Mexican museum exhibits the relics of Indian past in terms of aesthetic phenomena, in terms of works of art.
Each of the rooms of the “Museo del Arte Prehispanico De Mexico Rufino Tamayo” presents—with a certain liberty—objects and sculptures of a specific region and a specific time.
The painter Rufino Tamayo collected these pieces with a great love and artistic sense over more than twenty years, not only for his own pleasure, but also with the purpose of protecting them from exportation and illegal traffac and, first of all, with the wish of donating them to the people of Oaxaca, his native state.  
Tamayo left the museum to his native state, to make his countrymen aware of their cultural heritage, and to prevent these objects from being sold abroad. Tamayo was a Zapotec painter born near Oaxaca.  He lived in New York from 1926 to 1959.  In 1959 he returned to Mexico and soon after created this museum.  The museum has a number of stunning works, from all over Mexico.  But going through the museum, I was left wondering what the difference between Tamayo and certain other high-profile buyers of antiquities may be.  How is Tamayo, and his archaeological museum any different from what Robin Symes may have done for example?  They are different, but there are some troubling similarities as well.  I think the one difference is Tamayo acquired these objects and kept them in Mexico, though not necessarily their region.  He was preventing the loss of these works of art abroad.  But were these objects excavated by archaeologists?  The museum visitor is not told.  
There’s nothing inherently wrong with that I don’t think, I mean not every museum needs to focus on the antiquities trade.  But certainly there is not a lot of information provided to the museum-visitor.  We are told in broad strokes where these objects came from, what culture produced them (Maya, Aztec, Zapotec, etc.) but you don’t’ get a sense these were objects that were excavated by archaeologists.  Rather these are objects which are exhibited for their beauty, to show off the impressive works that were created before Europeans arrived. Displaying these objects sends a powerful message to locals and visitors; just like displaying them in New York or London would send a very different kind of message.  In Mexico, they are a symbol of national and indigenous pride.  If they were displayed in New York, they might be seen as a cultural appropriation, or even a sign that Mexicans are unable to properly care for their own works of art.
Mexico and its cultural heritage laws have played a vital role in cultural heritage law.  I wonder as well if part of the impetus for those laws was supported by efforts like the Tamayo pre-hispanic museum.  Mexico has strict export restrictions for art and antiquities, as well as a number of agreements with the US for enforcing those agreements.  One of Mexico’s first efforts to safeguard its cultural heritage was the enactment in 1916 of the Law on the Conservation of Historical or Artistic Monuments, Buildings, Churches and Objects.  In 1972, Mexico—probably in response to the recent UNESCO Convention—enacted the Federal Law on Archaeological, Artistic and Historical Monuments and Sites which defines illicit traffic of cultural patrimony as the import and export of cultural property that is stolen or not given official permission to leave the country.  Of course the important McClain prosecutions in the U.S. were a response to the theft of pre-Columbian objects from Mexico.  
In the McClain cases (United States v. McClain, 545 F.2d 988 (5th Cir. 1977); United States v. McClain, 593 F.2d 658 (5th Cir. 1979) The defendants were convicted under the NSPA for stealing pre-Columbian artefacts from Mexico, and selling them in the United States.  This group of art dealers and appraisers created a network in Mexico where artefacts were taken from excavations to the Mexican Archaeological Institute; they were then given false papers and backdated before 1972 in an attempt to give them clean provenance.  The objects were then taken across the border to Calexico, California where they were sold.  These actions ultimately raised the suspicions of the director of the Mexican Cultural Institute, which informed the FBI, resulting in an undercover investigation.

A Mexican law passed in 1972 nationalized ownership of undiscovered pre-Columbian artefacts.  As a result, the provenance and date of discovery of the objects was an important potential issue.  However, in the first conviction, the government presented no evidence as to how and when the objects were discovered or exported.  The first prosecution, often termed McClain I, dealt with the vesting of ownership of antiquities with Mexico, with the court considering the definition of “stolen” under the National Stolen Property Act in the United States.  It determined that the term should be given a broad meaning and remanded to the district court the issue of when precisely the objects were exported from Mexico.

Although the prosecution argued that an 1897 law accomplished state ownership, the court held title did not completely vest with Mexico until enactment of the 1972 law, because only then did Mexico declare ownership of all pre-Columbian artefacts.  The jury had not been instructed to determine when any of the pre-Columbian objects at issue had been exported from Mexico, or how to apply the relevant Mexican law to the export.  Because of the improper jury instruction, the court remanded the controversy back to the Federal District Court.  Although a temporary victory for the defendants, McClain I firmly established the applicability of the NSPA to pieces of cultural property emanating from nations which had vested title to these objects in the state, even where the objects have never been within the physical possession of the foreign government.    

On remand, the defendants were once again convicted of violating the NSPA, and of conspiracy to violate the act.  At the retrial, the prosecution was required to establish beyond a reasonable doubt that the defendants knew they were selling stolen objects.  In McClain II, the court upheld the conspiracy conviction due to overwhelming evidence that the defendants intended to smuggle Mexican artefacts, clearly violating the 1972 Mexican Act, and by implication the NSPA.  However, the conviction under the NSPA itself was overturned because of due process concerns.  The District Court Judge and not the jury must determine questions of foreign law.  As the 5th Circuit Court of Appeals reasoned, the most likely interpretation of the evidence by the jury led to the conclusion that Mexico deemed itself the owner of its pre-Columbian objects as early as 1897.  However, that act was too vague to impose criminal liability upon a defendant under the “jurisprudential standards” of the United States.


The conviction of the McClain defendants for conspiracy to violate the NSPA firmly established that individuals may be convicted under the NSPA for dealing in objects that foreign states have nationalized.  This ownership interest will be enforced by U.S. courts, despite the absence of any actual possession of the object by the foreign state.

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

The Challenge of UNESCO World Heritage Sites

Simon Usborne has an extended piece for the Telegraph examining the difficult task UNESCO has in selecting and preserving heritage sites. A number of pressures make this a difficult task, from too many visitors to looting to environmental or other factors. Pictured here is Monte Albán near Oaxaca, Mexico. The site is reportedly under threat as its carvings are exposed to the elements, it has been looted, and a nearby fire damaged it in 2006. The site is a World Heritage Site, which brings visitors and attention, but not perhaps enough resources for protection, preservation or crowd management.

One difficulty is the huge number of sites the agency is responsible for:

Unesco insists all its sites adhere to strict rules about management and planning, but could it be that the task facing the organisation – effectively to protect the planet – has become so daunting as to be impossible? If it has, the man in charge must have one of the toughest jobs in the world. Speaking from his Paris office, Francesco Bandarin admits it’s a tall order. “Sometimes you feel it’s impossible to control everything, especially when you look at our founding principles,” he says. “Our list is growing and the number of requests is growing, and it seems like the more work you do the more you get. It’s a very big job – too big.”
Bandarin suggests a solution would be to maintain a central committee, but to break some of the bureaucracy by handing partial autonomy to an “effective network of heritage institutes”. Unesco has launched a review of its practises and Bandarin expects big changes by 2012, when World Heritage turns 40. “It’s the only way we can cope with the crazy volume of work,” he says.
Questions or Comments? Email me at derek.fincham@gmail.com