From the introduction:
This article argues that continued application of the NSPA in cases involving unprovenanced antiquities risks outcomes that undermine one or both of two U.S. policy goals: (1) protecting the global archaeological record and (2) promoting museums’ charitable and educational missions. Accordingly, this article suggests that the current uncertainty in how courts apply the NSPA in the unique circumstances of determining title to undocumented antiquities might best be resolved by pursuing alternatives to continued reliance on the NSPA in these circumstances.
Part II introduces necessary background information on the concept of provenance; the distinction between foreign nations’ export and vesting statutes (referred to collectively as “patrimony statutes”); and the relationship between foreign patrimony statutes and the NSPA. Part III explores, in detail, the application of the NSPA in criminal cases involving unprovenanced antiquities, emphasizing the distinction between the Fifth and the Second Circuit Courts of Appeals’ approaches. Part III also describes Congress’s 1986 amendments to the NSPA, which (without apparent legislative intent to do so) have made application of the NSPA in cases involving unprovenanced antiquities especially problematic. Part IV addresses, in the context of existing U.S. policies, allegations in the search warrants that two California museums possess stolen Thai antiquities. Part V describes potential outcomes of any criminal prosecution under the facts alleged in the search warrants. Part VI concludes with simple sketches of three possible alternatives to the United States’ existing framework for combating trafficking in unprovenanced antiquities.