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.

25 Objects Returned to Italy, 0 Arrests

A 6th-century BC Kalpis depicting Dionysos transforming pirates into dolphins

 

 

In a ceremony this week officials from the United States and Italy announced the return of 25 looted objects to Italy. The various press releases from the U.S. and Italian authorities have details on all the returns. But I want to highlight one object which fascinates:this 6th-century BC Kalpis, likely looted from near Vulci, which depicts how Dionysus dispatched some Tyrrhenian pirates. It was acquired by the Toledo Museum of Art in 1982, but was later connected by Italian authorities to Giacomo Medici and Gianfranco Becchina. The vase was sold in 1982 for a mere $90,000. The history of the object given to the Toledo Museum was that it had been in the collection of a Swiss collector named Karl Haug, and had been in his family since 1935—predating Italy’s 1939 national ownership declaration. In June of 2012 Immigrations and Customes Enforcement agents “consctuctively seized” the vase, allowing it to remain in the possession of the Museum. This week’s ceremony marks the formal return of this and other objects with similar stories.

 

Elisabetta Povoledo reported for the NYT:

Inquiries were begun in the last decade or so in nine Homeland Security field offices, including New York City, Buffalo, Baltimore, Boston, Miami and San Diego, leading to the returns.

Gen. Mariano Mossa, commander of the T.C.P., said at the news conference that the value of the objects was difficult to gauge. But the quality and rarity of many of the artifacts made them irreplaceable, officials said.

Each artifact returned to Italy had its own story.

The three first-century B.C. fresco fragments depicting human figures, for example, were stolen on June 26, 1957, from the Culture Ministry offices at Pompeii. Tracked to a San Diego warehouse, they were taken by agents in September 2012 from the private collection of an unnamed “American magnate” before they could be sold at auction, Italian officials said.

The authorities later identified the frescoes as belonging to the Allen E. Paulson Trust, which forfeited them to the United States government, which then returned them to Italy.

This is very much in keeping with how these ancient works of art are dealt with. It’s almost exclusively an object-centered approach. These objects are returned while officials in both the United States and Italy are able to announce the hard work they are doing, but there are no new prosecutions.

Elisabetta Povoledo, 25 Looted Artifacts Return to Italy, The N.Y. Times, May 26, 2015.

 

"Groundbreaking" Antiquities Smuggling Ring Investigation

 Immigration and Customs Enforcement (ICE) announced yesterday that it has for the first time “dismantled” an antiquities smuggling network operating in the United States. Charges have been brought against individuals before, but this is appears from the indictment to be a pretty complete looting network, operating in the Middle East and the United States, which has been uncovered. According to the federal indictment four men have been charged with smuggling antiquities into the United States. It alleges that four men operated a smuggling operation which sent objects from Egypt to Dubai and its freeports and on to the United States. The federal agents also note that there was money laundering involved here, perhaps a tangible case implicating organized criminal activities to antiquities smuggling.

Dubai has freeports, much like Switzerland does. These are special areas which allow for the ease of international commerce, but can also be a haven to looters and smugglers. Giacomo Medici of course operated a very posh looted antiquities showroom from a Swiss freeport for many years. As the tension and unrest in many Middle-Eastern countries emerges, will Dubai become a focus for antiquities investigations? A haven for looters? I would suspect that Dubai will be far more willing and able to police and investigate on the looting of objects and stolen artifacts. I have a PhD colleague who currently works in their copyright enforcement force, and I would imagine that if nations ask for enforcement assistance from Dubai, they will likely receive it.


Windsor Antiquities booth in Manhattan, via WSJ

The investigation began when ICE Special Agent Brenton Easter and his team were looking for a terracotta head which was uncovered in Iraq in 2000, and the investigation uncovered an international smuggling ring. This is an example of what appears to be a very successful operation which has targeted all of the individuals in the ring, including the conduit from the thieves or looters in the Middle East, “the broker”, “the individual providing false provenance”, and “the end-all collector”. One of the objects, pictured here was a Greco-Roman-style Egyptian sarcophagus which might be worth as much as $2.5 million.

The indicted men are Mousa Khouli (Windsor Antiquities, NY), Salem Alshdaifat (Holyland Numismatics, West Bloomfield MI), Joseph A. Lewis, II (collector of Egyptian antiquities), and Ayman Ramadan (Nafertiti Eastern Sculptures Trading, Dubai).

  1. ICE makes arrests and seizes cultural artifacts stolen from Egypt, (2011), http://www.ice.gov/news/releases/1107/110714newyork.htm (last visited Jul 15, 2011).
  2. Keith Johnson, Alleged Antiquities Smugglers Busted, wsj.com, July 15, 2011, http://online.wsj.com/article/SB10001424052702304223804576446313624549304.html (last visited Jul 15, 2011).
  3. Kiran Khalid, Feds: Global antiquities smuggling ring dismantled CNN (2011), http://edition.cnn.com/2011/CRIME/07/15/new.york.antiquities.smuggling/ (last visited Jul 15, 2011).
  4. Feds accuse 4 of smuggling Egyptian artifacts, Reuters (2011), http://newsandinsight.thomsonreuters.com/Legal/News/2011/07_-_July/Feds_accuse_4_of_smuggling_Egyptian_artifacts/ (last visited Jul 15, 2011).
  5. Kate Taylor, Federal Authorities Charge 4 People in Antiquities Smuggling, The New York Times, July 14, 2011, http://www.nytimes.com/2011/07/15/arts/design/federal-authorities-charge-4-people-in-antiquities-smuggling.html?_r=1 (last visited Jul 15, 2011).
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

Gerstenblith on Schultz and Barakat

Patty Gerstenblith has posted a recent article, Schultz and Barakat:  Universal Recognition of National Ownership of Antiquities, which appeared in the recent issue of Art, Antiquity and Law, Vol. 14, No. 1, Apr. 2009.  She discusses the two recent cases in the United States and United Kingdom which lay out the requirements for how courts in these two nations view national ownership declarations of art and antiquities by other nations of origin.  Here is the abstract:

Two decisions, one in the United Kingdom and one in the United States, decided just about five years apart, are significant for universalising the principle that vesting laws – laws that vest ownership of antiquities in a nation – create ownership rights that are recognized even when such antiquities are removed from their country of discovery and are traded in foreign nations. This basic principle has proven to be very controversial in the United States and has been subjected to bitter criticism; yet virtually the same legal principle, when decided in a British court, received little comment or criticism. Compounding the interest of these two decisions is that, although both decisions came to virtually the identical conclusion, they did so utilizing different methods of analysis.

Although laws regulating cultural heritage have a long history, nations have enacted national ownership laws since the nineteenth century for the dual purposes of preventing unfettered export of antiquities and of protecting archaeological sites in which antiquities are buried. When ownership of an antiquity is vested in a nation, one who removes the antiquity without permission is a thief and the antiquities are stolen property. This enables both punishment of the looter and recovery of possession of the antiquities from subsequent purchasers. By making looted antiquities unmarketable, these laws reduce their economic value. National ownership laws thereby deter the initial theft and the looting of archaeological sites that causes destruction to the historical record and inhibits our ability to reconstruct and understand the human past. While reinforcing these goals, the Schultz and Barakat decisions also bring uniformity to the national treatment of this central legal principle.

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

Germany and the UNESCO Convention

David Gill speculates today that Germany may be a hub of the antiquities trade after recent reforms in Switzerland. That may be possible, or perhaps even likely, but he provides little empirical evidence, and merely some offers speculation. He does not consider for example the very useful EU restrictions on cultural objects which effectively prevent the trade in objects originating from EU member nations.

In the post he references an article by Andrew Curry ($), a journalist. Journalists do a lot of good reporting, and Curry may be a great one. Journalists who report on the law, particularly one as malleable as the UNESCO Convention often miss the mark however. Curry’s summary of the UNESCO Convention, and the arguments Gill makes are very misleading.

Curry’s piece states:

Whereas the United States and many of the other 112 signatories to the convention restrict or prohibit trade in broad categories of artifacts, the German law passed last Friday requires countries to publish lists of specific items they consider valuable to their cultural heritage. Only those items will be protected under German law, which means trade in undocumented artifacts, such as those looted from archaeological sites, will be difficult to restrict. “This is a bad signal,” says Michael Mueller-Karpe, an archaeologist at the Roman-German Central Museum in Mainz. “It tells the world that whatever isn’t published isn’t worth protecting.”

This is wrong on at least two accounts. First, both the United States and Switzerland do not prohibit broad categories of objects. They must be subject to ownership declarations. The real important issue here is the enforcement and recognition of foreign export restrictions. To recognize these both the US and Switzerland require individual nations to make a request and require bilateral agreements to implement the heightened restrictions. This is the province of the Cultural Property Advisory Committee in the United States.

Second, Germany requires nations to publish lists of specific items they consider valuable because this is what the Convention requires. Article 5 of the Convention states,

To ensure the protection of their cultural property against illicit import; export and transfer of ownership, the States Parties to this Convention undertake, as appropriate for each country, to set up within their territories one or more national services, where such services do not already exist, for the protection of the cultural heritage, with a qualified staff sufficient in number for the effective carrying out of the following functions:

(a) contributing to the formation of draft laws and regulations designed to secure the protection of the cultural heritage and particularly prevention of the illicit import, export and transfer of ownership of important cultural property;

(b) establishing and keeping up to date, on the basis of a national inventory of protected property, a list of important public and private cultural property whose export would constitute an appreciable impoverishment of the national cultural heritage;

(c) promoting the development or the establishment of scientific and technical institutions (museums, libraries, archives, laboratories, workshops . . . ) required to ensure the preservation and presentation of cultural property;

(d) organizing the supervision of archaeological excavations, ensuring the preservation `in situation’ of certain cultural property, and protecting certain areas reserved for future archaeological research;

(e) establishing, for the benefit of those concerned (curators, collectors, antique dealers, etc.) rules in conformity with the ethical principles set forth in this Convention; and taking steps to ensure the observance of those rules;

(f) taking educational measures to stimulate and develop respect for the cultural heritage of all States, and spreading knowledge of the provisions of this Convention;

(g) seeing that appropriate publicity is given to the disappearance of any items of cultural property.

Note that article 5(b) requires a register and specific definition, the very thing Gill criticizes Germany for doing. This actually strikes me as a very good policy idea. Cultural heritage can mean lots of things to lots of people. I don’t see how its an onerous task for nations of origin at minimum to broadly define categories of objects which should be It should be noted that very few nations have successfully completed this task. This is one flaw, among many, of the UNESCO Convention.

The Convention is an important foundational document, but as a legal instrument leaves a great deal to be desired. Article 2, which can be read more broadly imposes vague requirements on States Party, but States are free to implement the Convention with a great deal of discretion.

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

Does Energy Trump Heritage in the Four Corners

Kirk Johnson of the New York Times has an excellent article about a disheartening subject: the threat energy projects pose to Native American heritage in the West. Its a familiar story: not enough funding for surveys and archaeological research, pressures from development and expanding populations, plus the problem of illegal looting.

Above is a picture from the piece, of Chimney Rock Archaeological Area. Federal land managers are forced to make difficult judgment calls, considering using portions of funds for energy development to help safeguard and protect sites.

As the piece notes, “A spokesman for the Independent Petroleum Association of America, which represents drilling companies, described helping defend historical sites as good for business, especially if financing volunteers created more contact and understanding between local residents and energy explorers.”

That seems like a big lump to swallow and a dangerous compromise of heritage values. I’m highly skeptical of this kind of give and take, though perhaps some with more understanding of specific cases might offer some kind of hope for this kind of compromise. Consider that “[t]he Forest Service, for example, using research at Chimney Rock that suggests the place was chosen by the Anasazi at least partly for its vantage point of the San Juan Mountains and river valley below, recently decided that a big natural gas drilling project just a mile or so away must not be visible from the rock.” Wow, one would have thought that would have been a no-brainer.

Also at risk is the 2,000 year-old rock art in Nine Mile Canyon (previously discussed here); in Montana, a coal-fired power plant has been proposed near “one of the last wild sections of the Lewis and Clark trail”; and in New Mexico a uranium mine has been proposed on a national forest site sacred to Native American tribes.

It’s a disheartening story, which indicates I think how much more effort and advocacy is needed. Strict criminal penalties are in place for looting of sites, and there are even nimble civil fines which can quickly punish looters. But heritage policy does not start and stop with looting, it also requires funding, and good policy solutions. Sadly many of those appear to be lacking in the American West, despite some notable heroic eforts

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