Kate Fitz Gibbon is a specialist in domestic and international law affecting cultural heritage. We strongly recommend that collectors and dealers of both Native American and international ethnographic art visit the following webpage for general background in this area of the law. Additional comments also appear below. See her extensive text at http://www.atada.org/Art_and_the_Law Background and recent applications of laws affecting international cultural property Cultural Property Implementation Act (CPIA). The 1983 Cultural Property Implementation Act is the only comprehensive U.S. legislation expressly designed to address the problems created by the trade in antiquities and ethnological materials worldwide. The CPIA is the U.S. implementing legislation for the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, the first international instrument focused on those issues. The UNESCO Convention is not self-executing on signature but requires implementation by each State Party. The CPIA was passed after eight years of negotiation and testimony before Congress. It was intended to balance the competing interests of U.S. museums, the art market, the public, archaeologists, and source nations. Congress recognized that a diverse U.S. citizenry benefited by having access to the art of the entire world: the CPIA explicitly recognized a general interest of the international community in the interchange of cultural property among nations. At the same time, the CPIA was designed to ameliorate crisis situations of looting by creating import barriers that limit or halt importation of various forms of cultural property when archaeological sites are at risk. Cultural Property Advisory Committee to the President (CPAC). The CPIA establishes the process for bilateral and multilateral agreements: a committee of eleven experts appointed by the President, the Cultural Property Advisory Committee (CPAC), reviews requests from source countries. The CPIA requires that the committee determine if there is a “situation of jeopardy” to a country’s cultural patrimony. Import restrictions by the U.S. must be made in concert with actions by other nations. The source country must also take steps to protect its heritage – it cannot rely entirely on the U.S. to police its borders. The CPIA further requires that import restrictions be consistent with the general interest of the international community in cultural exchange. The CPIA also defines emergency situations in which the President may impose limited, time-constrained import restrictions. The Act creates safe harbor for objects held by a museum for three years or more, purchased in good faith, and published, exhibited or cataloged. If objects are not held by a museum or similar institution, the safe harbor provisions require that they have been in the U.S. for ten years and publicly exhibited or accessible in order to give notice to possible claimants or that they have been in the U.S. for twenty years and the owner can establish that the material was purchased without knowledge or reason to believe that it was “imported in violation of law.” Bilateral agreements and treaties. Cambodia, China, Cyprus, Italy, Mali, El Salvador, Bolivia, Colombia, Honduras, Nicaragua, Peru, Guatemala and Ecuador have concluded bilateral agreements under the CPIA. This range essentially cuts off importation of Pre-Columbian materials into the U.S. In addition to the restrictions imposed under these agreements, a long-standing U.S. law, the 1972 Pre-Columbian Monumental and Architectural and Murals Statute, has prohibited importation of these major works unless provided with a certificate of origin and evidence of legal export or satisfactory evidence of export prior to passage of the Statute. Another treaty, the 1970 Treaty of Cooperation between the United States of America and the United Mexican States Providing for the Recovery and Return of Stolen Archaeological, Historical and Cultural Properties, provides that both countries “employ the legal means at its disposal to recover and return from its territory stolen archaeological, historical and cultural properties that are removed after the date of entry into force of the Treaty.” A Chart of Emergency Actions & Bilateral Agreements may be found at http://culturalheritage.state.gov/chart.html. Unilateral agreements. The U.S. has also enacted unilateral embargoes with the following nations: Iraq (since 1991), Iran (since 1987), Sudan (since 1997), and Burma (since 2003). Moral suasion or threat of bad publicity? By and large, disputes between U.S. museums and foreign nations over past acquisitions have been resolved through negotiation rather than litigation. So far, no disputes have involved criminal prosecution in the U.S., although several pending California cases may be the first to do so. However, even negotiated settlements may be detrimental to museum interests, especially when foreign nations rely on moral arguments and threats of bad publicity rather than on legally sustainable claims. Museum administrators and trustees may find it easier to quietly give up title to works of art than to risk embarrassment in the courts and the press or to suffer the loss of public goodwill. The most notorious of the public claims for repatriation have been made in the climate of scandal surrounding the indictment of former Getty Museum Curator of Antiquities Marion True in Italy on charges of trading in ancient Greek and Roman antiquities from illicit digs. The Government of Italy has also demanded the return of allegedly looted objects from the Getty, the Metropolitan Museum of Art in New York and the Museum of Fine Arts, Boston. The public embarrassment suffered by the Getty was not lost on the Metropolitan Museum in New York. After months of quiet negotiation with Italian officials, the Metropolitan Museum agreed to return one of its most prized antiquities, an Attic krater, in February 2006. In return, Italy agreed to provide the Met with loans of works of equivalent beauty and importance. Other museums were similarly forthcoming after receiving Italian demands. The Museum of Fine Arts in Boston, the Princeton Museum of Art, the Cleveland and Toledo Museums, and the Virginia Museum of Art have all received official requests from the Italian government to return artworks in their collections. Most have complied, at least in part. Italy’s successes in securing the return of numerous outstanding objects from the Getty and Metropolitan museums may have spurred other countries to seek the return of artworks. After a prolonged press campaign by Greece’s ministry of culture, the Getty recently returned a rare fourth-century B.C. gold funerary wreath that Greece contended was illegally removed from Greek soil. Egypt. Zahi Hawass, Secretary General of Egypt's Supreme Council of Antiquities, has demanded the return of numerous iconic objects of Egyptian origin from museums worldwide. Egypt has formally requested the return of the Rosetta Stone from the British Museum, where it has rested since its transfer from French hands in 1801. The Egyptian government is also seeking the return of the bust of Queen Nefertiti in Berlin's Egyptian Museum, the Metropolitan Museum's statues of Queen Hatshepsut and Paris's landmark obelisk in the Place de la Concorde. In the United States, Egypt has threatened litigation against the St. Louis Museum of Art over a wood and plaster burial mask of Ka Nefer Nefer, an ancient Egyptian noblewoman. Peru v. Yale. For several years, the Government of Peru has threatened suit against the Peabody Museum at Yale University for recovery of artifacts from Machu Picchu collected by Yale University professor Hiram Bingham III nearly a century ago. The dispute arose when faculty at the Peabody contacted the Peruvian government to explore joint participation with Peru in a traveling exhibition. Discussion grew acrimonious when the Peruvian side accused Bingham of failing to uphold agreements for return of several thousand items from his second and third expeditions, and claimed that he had spirited away other items for which export permission had not been granted. Yale insisted that the total items numbered less than 400. The university asserted that Peruvian President Augusto B. Leguia had granted full permission in 1914 for the removal of Bingham’s excavated materials and that the materials from Bingham’s later1914-1915 expedition had been returned to Peru in the 1920s. Peru agreed to sign a preliminary Memorandum of Understanding with Yale in September 2007. The draft MOU was hailed as a new model of scholarship and stewardship. It allowed Yale to retain the items concerned for up to ninety-nine years and to pursue scholarly activities through an ongoing cooperative arrangement with Peru. It recognized Yale’s contribution to Incan studies and created a new museum in Machu Picchu to be constructed with revenue from a traveling exhibition. Yale acknowledged Peru’s title in the Bingham materials, but retained usufructary rights to (among others) possess, use, enjoy, study, restore, exhibit, and publish the materials without monetary payment. However, in November 2008, more than a year after the signing of the draft MOU, the Peruvian Council of Ministers approved in principle the filing of a lawsuit against the University, and suit was filed on December 5, 2008. Peru claims title to and seeks return of the artifacts excavated by Bingham, along with all studies made by Yale of the materials. Peru also seeks property rights in the profits from the traveling exhibition organized by the Peabody Museum. The complaint alleges that Yale’s conduct breached fiduciary duties to Peru and is in violation of the 1970 UNESCO Convention, the 1972 UNESCO Convention on Protection of the Word Cultural and Natural Heritage and the UNIDROIT Convention on Stolen and Illegally Exported Cultural Objects. Peru’s claim that Yale has violated Peruvian law are based upon a series of Peruvian Government decrees that gradually claim greater rights of supervision over excavation and export of antiquities. Peru seeks replevin of the retained objects, damages for wrongful retention, and alleges conversion and breach of contract. The complaint goes on to allege fraud, fraudulent misrepresentation, civil conspiracy between Yale and Bingham for each allegation, and unjust enrichment by Yale. U.S. v. Schultz. The 2002 case of U.S. v. Schultz is one of the most significant legal developments in the cultural property arena, resurrecting a controversial doctrine expressed in 1977 and confirmed in 1979 in U.S. v. McClain, upholding national ownership claims of foreign nations under the National Stolen Property Act (NSPA). As confirmed by Schultz, a foreign nation can now secure extraterritorial enforcement of national-patrimony laws against U.S. citizens through the U.S. Customs. Such blanket enforcement of foreign national ownership laws under the NSPA ignores the checks and balances built into the Cultural Property Implementation Act and any of its expressed interests in the international exchange of cultural property. The trial court in Schultz examined the Egyptian patrimony law and determined that the law’s broadly expressed declaration of national ownership was sufficient to establish title in the state. The court rejected Schultz’s argument that the NSPA applied to actual theft and was not meant to apply to a violation of the Egyptian government’s blanket claims to antiquities. In his instructions, the trial judge also charged the jury that the guilty knowledge necessary for a conviction under the NSPA could be inferred from Schultz’s “conscious avoidance” of knowledge of Egypt’s patrimony law, an apparent retreat from the statement of the 5th Circuit U.S. Court of Appeals in McClain that “the specific scienter requirement eliminates the possibility that a defendant is convicted for an offense he could not have understood to exist.” The U.S. Court of Appeals for the Second Circuit affirmed Schultz’ conviction. Schultz was thus convicted not for dealing in objects stolen from known archaeological sites or museum inventory but for conspiring to deal in objects to which Egypt claimed non-possessory title under its 1983 patrimony law. The Archaeological Resources Protection Act. Several recent prosecutions surrounding the importation of ancient materials from foreign nations have employed the Archaeological Resources Protection Act of 1979 (ARPA). These prosecutions have attempted to extend a statute designed to protect archaeological resources on federal and Indian lands to archaeological sites throughout the world. ARPA and its predecessor, the Antiquities Act of 1906, established regulations and permitting processes and set civil and criminal penalties for excavation, transportation and sale of archaeological artifacts, as well as damage and defacement to sites and monuments on federal lands. The activities prohibited under ARPA are under sections 470ee(a); excavation, removal, damage, alteration, or defacement of archaeological resources…located on public lands or Indian lands, 470ee(b) sale, purchase, exchange, transportation, or receipt of any archaeological resource excavated from public or Indian lands, and 470ee(c), which prohibits the sale, purchase, exchange, transportation, or receipt in interstate or foreign commerce of archaeological resources excavated in violation of any provision in effect under state or local law (emphasis added). The reference to foreign commerce and the omission of the phrase from public or Indian lands in section 470ee(c) provides the single support for the expansion of the reach of ARPA to cover trafficking in foreign artifacts. There are potential constitutional barriers and federal preemption issues raised where a state law, operating through a federal statute, might conflict with another federal law or with foreign policy. Behavior punishable in one state might not be punishable in another state. The global application of ARPA may subject innocent art dealers and collectors to potential prosecution through circumvention of the NSPA’s scienter requirement. The virtually infinite expansion of ARPA to antiquities worldwide on the basis of the absence of a phrase in a single section appears to this and other authors to be a deformation of the Act’s purpose to protect Native American and other U.S. archaeological materials. Application of ARPA to foreign contexts also raises substantive questions about the jurisdictional reach of U.S. courts over activities in foreign countries. The regulations stemming from the Act appear to set the Act firmly within a framework of purely domestic archaeological concerns, since these include provisions for excavation and removal permits and other matters clearly applicable only to federal and Indian lands. California museum cases. A current prosecution under ARPA for foreign trafficking involves California museums and may determine if this construction of ARPA is sustainable. A criminal investigation begun in April 2003 resulted in highly publicized raids on four Southern California museums in January 2008, including the Mingei International Museum, the Charles Bower Museum Corporation, the Pacific Asia Museum and the Los Angeles County Museum of Art (LACMA). Several museums, but not LACMA, were accused of collusion with antiquities dealers in knowing cooperation on the part of museum officials to inflate valuations. The case, which otherwise appears to be a penny-ante tax fraud matter, involved a five-year undercover investigation by three federal agencies. Although allegedly overvalued, the objects, primarily from the Ban Chiang culture of 2000 B.C.E., were appraised for less than $5,000 per object. The statutory support for the warrant begins with the Archeological Resources Protection Act, noting that subsection 470ee(c) of ARPA states no person may sell, purchase, exchange, transport, receive in interstate or foreign commerce, any archaeological resource removed, sold, purchased, exchanged, transported or received in violation of any provision of State law. The affidavit then looks to California Penal Code section 497, which makes it a violation of State law to receive property stolen in another country and to bring it into California knowing the property was stolen. The affidavit lists California Penal Code section 31, which states all persons concerned in the commission of a crime who have advised and encouraged its commission or aid and abet in its commission are principals in any crime so committed. It then looks to Thailand’s Act on Ancient Monuments, Antiques, Objects of Art and National Museums, B.E. 2504 (1961/1992) (“The Thai Act”), which the affidavit states holds that antiques that are buried, concealed or abandoned are state property. The linking of ARPA to the California Penal Code and the Thai Act raises a similar chain of arguments to those established in the McClain and Schultz and Barchitta cases; non-possessory State title may be created through statute, and purely statutory and non-possessory title is sufficient to bring a claim in the U.S. that the object has been stolen. It is not necessary that there be an “owner” except for the state, nor does the state have to have known of the existence of the allegedly stolen item, much less to take steps to demonstrate its interest in the item. © Kate Fitz Gibbon 2009 This is a communication for the purpose of providing information and a legal advertisement. 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