Kate Fitz Gibbon specializes in helping collectors, museums, and art dealers working with Native American and International Art.
She is editor and contributing author to "Who Owns the Past? Cultural Policy, Cultural Property and the Law," Rutgers University Press 2005.
Her most recent publication on art law is "Native American Art and the Law: A Collector's Guide" for the ATADA Foundation, Inc. 2010.
She speaks frequently at museums and other venues on art and the law.
Watch! The Future of the Past: Collecting Ancient Art in the 21st Century, The Asia Society Museum, March 18, 2012 Links to other articles: The Marion True Trial
The Rabbit and the Rat: Who owns Chinese Antiquities? An interview with Kate Fitz Gibbon
INTRODUCTION TO CULTURAL PROPERTY ISSUES
What is the 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.
What is the 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.”
Which countries have bilateral agreements and treaties with the United States?
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.
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).
The effects of
an agreement under the CPIA.
When a source
country makes a request for import limitations to the Cultural Property
Advisory Committee, the committee may respond with recommendations for an
embargo on certain objects felt to be especially at risk. In the past 15 years,
the lists of types of objects for which no entry is permitted has expanded from
very specific types of items at particular risk (i.e. Peruvian ceramic
artifacts from Sipan) to listing virtually everything made in a particular
geographic area over a vast extent of time (i.e. all artifacts from China prior
These types of
objects that are prohibited entry are called “Designated Materials.” According
to the text of the law, “Designated Materials” that are subject to import
restrictions must be “specifically and precisely” described in order to give
fair notice of the restrictions to importers and others through publication in
the Federal Register. After publication,
Designated Materials may not be lawfully imported into the United States unless
the importer is able to present either an export permit from the applicable
State Party within 90 days (which can be difficult or impossible to obtain) or
“satisfactory evidence” that the material was exported from the State Party
either not less than 10 years before the date of such entry or on or before the date on which such
material was designated through publication in the Federal Register. Without an export permit or such
“satisfactory evidence” of prior export, the material is subject to seizure and
forfeiture by Customs.
have had objects in the US for a long period of time, but have no assurance
that they were lawfully exported, there is another source of protection under
the CPIA. It creates a “safe harbor” from seizure for objects held in
the U.S. by a bona fide purchaser for at least 20 years and for objects held
for at least three years by a U.S. museum or other cultural institution and
published, cataloged or exhibited for specified periods. The safe harbor is
subject to only to limited exceptions.
the CPIA is now largely legally irrelevant: The conflict between US laws and
consequences for private collectors and museums
In recent years, the
Convention on Cultural Property Implementation Act of 1983 (“CCPIA”) has been
outflanked by the aggressive use of civil forfeiture and U.S. criminal laws to
enforce foreign national ownership laws, notably through the National Stolen
Property Act (“NSPA”). There is now a situation of legal uncertainty in which
it is possible to be in complete compliance with CCPIA, the chief legislation
governing cultural property in the U.S., and at the same time to be in violation
of criminal laws with harsh penalties.
Recent forfeitures involving a sarcophagus, a mummy mask and
dinosaur fossils demonstrate a disturbing pattern of aggressive seizures based
on the McClain and Schultz cases.
McClain and Schultz.
McClain is a 30 year old case having to do with Mexican
antiquities. It was the first US antiquities case in which prosecutors utilized
the National Stolen Property Act to allege that artifacts were legally “stolen”
in the US, based upon a Mexican law vesting ownership of all antiquities in the
Mexican State. 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.
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
The McClain and Schultz cases, and all cases
utilizing them as precedent, rest on the answers to these questions:
1. whether the patrimony law in effect at the time of export
was a clear and unambiguous declaration of state ownership;
2. whether it was domestically enforced; and
3. whether the importer knew or consciously avoided knowledge
of applicable law at the date of export.
The most recent patterns of prosecutions in the US have used
civil forfeiture as the primary tool for prosecutions of antiquities cases. US
Customs and Border Patrol and the U.S. Attorney use civil forfeiture as the
basis for seizing foreign-sourced objects that are assumed to be stolen without
any analysis or proof of the McClain/Schultz factors.
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 of museums in the U.S., although several 2008 California cases earlier threatened 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 were made in the five year long prosecution 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 returned a rare fourth-century B.C. gold funerary wreath that Greece contended was illegally removed from Greek soil.
Examples of cultural property controversies:
Zahi Hawass, former Secretary General of Egypt's Supreme Council of Antiquities, 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 threatened litigation against the St. Louis Museum of Art over a wood and plaster burial mask of an ancient Egyptian noblewoman.
The mummy mask
case is United States v. Mask of
Ka-Nefer-Nefer, No. 4:11CV504 HEA, 2012 WL 1094652 (E.D. Mo. Mar. 31, 2012),
mot. for reconsid’n denied, 2012 WL 1977242 (E.D. Mo. June 1, 2012). On March 31, 2012, a U.S. federal district
court granted the Saint Louis Art Museum’s (“SLAM”) motion to dismiss the U.S.
Government’s claim for civil forfeiture of ancient Egyptian sarcophagus mask
known as Ka-Nefer-Nefer. The U.S. Government alleged that Egyptian records showed that the mask had been in the possession of the Egyptian government
from the time it was excavated at Saqqara in 1952 until sometime between 1966 and
1973, when the mask was determined to be missing. In 1999, SLAM purchased the Mask from
a New York art dealer for $499,000. The government claimed that because Egyptian records
never recorded the legal sale or export of the mask, it must be
considered stolen property and returned to Egypt. The Court held
that the Government failed to allege any facts that amounted to a claim of
theft and also
failed to state what law(s) were
violated in order to articulate a legal standard under which to evaluate a
claim of theft or illegal export. The SLAM mummy
mask case is the rarest of the rare - success for the defendants and real
failure for the prosecutors in a cultural property case.
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.
Using the Archaeological Resources Protection Act, A US law protecting Native American archaeological resources, to prosecute citizens for collecting overseas.
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 2008 investigation under ARPA for foreign trafficking involved California museums but never determined whether this construction of ARPA was 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 began 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 looked 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 looked 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 stated 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, 2013
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