"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).

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.

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.

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.

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

Can the West do More to Protect Iraqi Antiquities?

Dr. Bahaa Mayah, a special adviser to Iraq'a Minister of Tourism and Antiquities, has strongly criticized the response of the West to the trade in looted or stolen antiquities originating from Iraq. Dr. Mayah held a press conference yesterday at the British Museum, and argued it was the occupying forces' responsibility to retrieve the valuable objects taken since 2003. He also urged a global ban on Iraqi antiquities via a UN Security Council resolution. He said "Our antiquities are scattered everywhere from America to Europe. This problem is not new but it has intensified since 2oo3 and is now becoming a bigger problem."

Speaking of America specifically, he argued "America is co-operating and not co-operating at the same time. We were grateful when they returned the Statue of Entemena (from 2,430BC) but at the same time, you see auctioneers all over the country trading in our antiquities. No action is being taken". This statement, curiously, comes on the same day the Department of State published a notice of an import Restriction to Protect the Cultural Heritage of Iraq.

You can also hear his comments on BBC Radio 4's Front Row program here, his interview starts at about 18 minutes in, which David Gill has noted this morning as well.

There at three separate issues here, first is what can be done to prevent looting in Iraq and how to regulate the illicit trade in Iraqi antiquities. Second, is the damage done by occupying forces to important sites at Babylon and elsewhere. Finally, there is the claim for restitution for objects which have long in the British Museum collection. The first two, it seems to me are related. The final question, which speaks to the notion of Universal Museums, must be separated. Every time this kind of discussion spins off into a discussion of the Parthenon Marbles and other restitutions, I think we lose site of the present ongoing issue: the looting of sites, and the illicit trade.

I am sympathetic to Dr. Mayar, as he must find it difficult dealing with a myriad of different agencies in Europe, and he feels the burden is on the source nation to give evidence of of an object's illicit nature. Unfortunately this is the regime which the 1970 UNESCO Convention has produced, and efforts to create an effective multilateral agreement in this arena have been notoriously difficult. I think that must surely be tied to the disagreement and acrimonious nature the debates often engender.

Prof. Patty Gerstenblith has noted before that a lot of the reporting and discussion of the law as it pertains to the antiquities trade is wrong, and misses the point completely. I have to agree. Dr. Mayar talks about the incomplete response of the West to the trade in Iraqi antiquities, but I think the US and the UK have taken the necessary steps to attach criminal penalties to this trade. International law already bans the trade in Iraqi antiquities, under UN Security Council Resolution 1483:

Decides that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq since the adoption of resolution 661 (1990) of 6 August 1990, including by establishing a prohibition on trade in or transfer of such items and items with respect to which reasonable suspicion exists that they have been illegally removed, and calls upon the United Nations Educational, Scientific, and Cultural Organization, Interpol, and other international organizations, as appropriate, to assist in the implementation of this paragraph;

In the United Kingdom, the Theft Act 1968, the Proceeds of Crime Act 2002, and the Iraq (UN Sanctions) Order 2003 creates a criminal offence for merely being in possession of Iraqi Antiquities.

The United States has banned the import of Iraqi antiquities, and the National Stolen Property Act, as well as the powerful Civil Forfeiture mechanisms available to Federal Prosecutors strongly regulate the criminal aspects of the trade.

The difficulty of course, and its one that Dr. Mayar speaks to, is the difficulty in establishing evidence of the fact that an object originated in Iraq, when it could have originated from any one of a number of countries. Are there Iraqi antiquities currently being sold in the United States and United Kingdom? I'll confess I don't know. His comments strongly indicate they are, but I'm unaware of such sales, or any reports indicating this is the case.

Ultimately, I think the US and the UK in particular have taken nearly all the steps they can to regulate the criminal aspects of the trade. To shift burdens any further would, without being overly dramatic here, require Constitutional-level reworking, to allow fewer rights for criminal defendants. That is a step no thinking person can responsibly advocate. That's at the core of my arguments about the utility of the criminal response to the illicit trade. The solution, as I see it, is to introduce a way for cultural property transactions to require title history, provenance and findspot information for antiquities. This would give real effect to the law. Without such information, the antiquities trade will continue to evade effective regulation. Think about the California searches from earlier this year, despite a dramatic raid, we have yet to see any charges filed. Though this is heresy to even suggest for many in the archaeological community, this will in my view require compromise and will almost certainly require a liberalization of the trade in some respects.

The Doctrine of Discovery, the US and New Zealand

The Doctrine of Discovery is an international legal principle which justifies property rights over new-found territories. The doctrine is still very much alive today. Russia evoked it when it placed its flag on the Arctic Ocean floor in 2007 to claim the potential oil and gas reserves there.

Robert J. Miller, of Lewis & Clark, and Jacinta Ruru, of the University of Otago, have posted a new comparative law working paper on SSRN, An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand.


Here's the abstract:

North America and New Zealand were colonized by England under an international legal principle that is known today as the Doctrine of Discovery. When Europeans set out to explore and exploit new lands in the fifteenth through the twentieth centuries, they justified their sovereign and property claims over these territories and the Indigenous people with the Discovery Doctrine. This legal principle was justified by religious and ethnocentric ideas of European and Christian superiority over the other cultures, religions, and races of the world. The Doctrine provided that newly-arrived Europeans automatically acquired property rights in the lands of Native people and gained political and commercial rights over the inhabitants. England was an avid supporter of the Doctrine and used it around the world. The English colonial governments and colonists in New Zealand and America, and later the American state and federal governments and New Zealand governments, all utilized Discovery and still use it today to exercise legal rights to Native lands and to control their Indigenous people. In this article, the authors, an American Indian and a New Zealand Maori, use a comparative law methodology to trace and compare the legal and historical application of Discovery in both countries. The evidence uncovered helps to explain the current state of United States Indian law and the New Zealand law relating to Maoris. While the countries did not apply the elements of Discovery in the exact same manner, and at the same time periods, the similarities of their use of Discovery are striking and not the least bit surprising since the Doctrine was English law. Viewing American and New Zealand history in light of the international law Doctrine of Discovery helps to expand one's knowledge of both countries and their Indigenous peoples.

It's a great read, and the doctrine of discovery has a lot to do with the difficulty cultural policy makes had in formulating a cohesive national and international legal regime to handle, regulate, and restrict the trade in cultural objects. Much of the very restrictive cultural patrimony laws in many nations of origin can be directly attributed I think to the massive cultural and economic drain which took place when European colonists discovered new lands.

(Hat tip)

US Criminal Penalties and Antiquities

To a casual observer, the recent searches in California would perhaps indicate that American criminal prosecutions and investigations can have a substantial impact on the illicit trade in antiquities. I certainly think they are a welcome sign, and hope that more of them will be supported by investigators and prosecutors. However, that investigation took five years to materialize, and there is still no indication if there will be any arrests. It certainly seems likely, but even this dramatic show of force and investigative might will not, I think, end or even put a substantial dent in the illicit trade. The current regulatory framework in both nations of origin and in market states puts far too much pressure on customs agents, prosecutors, and investigators.

At least that's what I argue in my now-available article in the Cardozo Arts and Entertainment Law Journal, WHY U.S. FEDERAL CRIMINAL PENALTIES FOR DEALING IN ILLICIT CULTURAL PROPERTY ARE INEFFECTIVE, AND A PRAGMATIC ALTERNATIVE. 25 Cardozo Arts & Ent. L. J. 597-695 (2007)

The pragmatic alternative is the approach in England and Wales with its Treasure Act, Portable Antiquities Scheme, and limited export restrictions. This legal framework and attendant cultural policy is unique, in that it effectively incentivizes obeying the relevant cultural heritage laws. It adopts a carrot and stick approach, while many nations use too much of the stick. I argue that the criminal penalties can be brought to bear in cases of clear and egregious violations, or where there are a great deal of investigative resources available. Such was the case in the California searches, in which an undercover agent posed as a buyer. However, it took five years of investigations, and it's still not clear what the result of these investigations are.

The image above is an Egyptian antiquity which Jonathan Tokeley-Parry bought and sold to Frederick Schultz, who later sold it for $1.2 million in 1993. It's an image of 18th Dynasty pharaoh Amenhotep III (ca. 1403-1354 B.C.). Tokeley dipped the sculpture in clear plastic and painted it to resemble a cheap tourist souvenir. I discuss prosecutions of both men, which took place in England and the US respectively in the article. A lot of articles discuss the Schultz prosecution, but surprisingly no articles have discussed in any real detail the corresponding prosecution of Tokeley-Parry in England, which I think is key to understanding the international nature of the illicit trade, and the kind of complex multinational criminal investigation which is difficult where criminal investigation and prosecution are time-consuming and expensive. Not to mention the substantial pressures of other and often more-pressing matters such as drugs, violent crime, terrorism and the like.

I would be quite eager to hear any comments or reactions to the piece at derek.fincham "@" gmail.com.

Protecting Native American Objects and Sites

Indian Country Today has a couple of very interesting articles by American Cultural heritage lawyers. The first, an article by Gabriel Galanda and Debora Juarez covers threats to sacred places "off-reservation". Here's an excerpt:

Sacred lands are indeed under attack. Developers are willing to pillage such lands whenever profitable. By way of example, as the Times piece explained, an energy development company threatens to build a $4 billion oil refinery atop lands believed to be the final resting place for Quechan ancestors. And, if state governments are not likewise seeking to excavate Indian burial grounds or sacred lands for highways, sewer systems or other public works projects, state decision-makers are attempting to make it easier for private developers to do so.

In March, the Idaho Legislature unanimously passed a law that will allow state officials to automatically unearth tribal ancestors from their finally resting places when discovered on private lands. An Idaho state spokesman cited digging up ancestral remains as a great solution because it would be done ''at no cost to the landowner and with no delay to the project.'' Currently, the Washington state Legislature is studying ''the legal processes to permit the removal of human remains from property'' so development can also proceed on ceded lands in Washington without cost or delay.

Tribal governments and citizens must stand prepared for battle in this new kind of Indian war. This is the first of a two-part series designed to equip tribes with the legal weaponry that they need to defend their sacred places.

In the second article, Sharon Haensly talks about prospective steps that Indian tribes can take to protect sites from development and destruction. Some steps which tribes should take include:

• Declare, in tribal law, the tribe's property and other legal rights in off-reservation sacred sites and in the access routes to them.
• Avoid the legally ambiguous term ''cultural resources,'' and use the term ''cultural property'' whenever possible.
• Create a tribal register of sacred sites, designate specific sites on tribal registers, and decide when and how to share this information with other governments and developers.
• Organize and maintain an ever-growing database of written information that supports the tribe's cultural connection to sacred sites.
  
• Describe in tribal law the preferred methods for conducting off-reservation inventories and handling accidental discoveries of cultural property.
• Ensure that tribal constitutions extend tribal jurisdiction, including tribal court jurisdiction, over off-reservation cultural properties.

Those all appear to be excellent strategies especially as the tension between development and preservation will always exist, especially in the American West. In the United States protection of Native American sites and artifacts often depends upon where an object is located, whether its private land, State-owned land, or Federal land. Protection seems to work reasonably well overall, but it's a confusing patchwork approach, and subject to some really unfortunate abrogations as may take place in Idaho. In such a legal environment, tribes need to be proactive and prepare for disputes before they occur.

This is a topic which is receiving more scholarly attention of late. An excellent article in the most recent issue of the Journal of Art, Antiquity and Law by Carolyn Shelbourn compares the protection of archaeological resources in the United States and England, Protecting Archaeological Resources in the United States: Some Lessons for Law and Practice in England, 12 Art, Ant. & L. 258 (2007).

The GAO takes the Smithsonian to Task

Many have argued that a compelling case can be made that art and antiquities should be displayed in market nations in the developed world because they are better preserved there than they might be if returned to source nations which are often underdeveloped. The GAO report which James Grimaldi highlights in today's Washington Post seriously undermines such arguments. It reveals a troubling picture of what should be America's proudest cultural institution. Instead a picture of staggering institutional incompetence is revealed:

• Alarms ring and guards are unable to respond;
• A water leak in the Sackler Gallery could have destroyed artwork worth half a billion;
• Fossils were stolen from display cases at the Natural History Museum;
• Plastic sheets are required to protect Native American artifacts from damage;

The United States Introduces Import Restrictions for Cypriot Coins

The Cultural Property Advisory Committee has recommended, and the State Department has issued an import ban on Cypriot coins. Here is an excerpt from the Federal register notice outlining the new import restrictions:

Coins of Cypriot Types
Coins of Cypriot types made of gold, silver, and bronze including but not limited to:

1. Issues of the ancient kingdoms of Amathus, Kition, Kourion, Idalion, Lapethos, Marion, Paphos, Soli, and Salamis dating from the end of the 6th century B.C. to 332 B.C.

2. Issues of the Hellenistic period, such as those of Paphos, Salamis, and Kition from 332 B.C. to c. 30 B.C.

3. Provincial and local issues of the Roman period from c. 30 B.C. to 235 A.D. Often these have a bust or head on one side and the image of a temple (the Temple of Aphrodite at Palaipaphos) or statue (statue of Zeus Salaminios) on the other.

Jeremy Kahn of the New York Times has a summary in today's paper here. The new restriction is noteworthy because the Cultural Property Advisory Committee has never placed restrictions on ancient coins before. However, no request for restrictions by another nation has never been refused, so this was the likely outcome. To trigger a recommendation for import restrictions, a source nation must show it is working to police its archaeological sites, and the ancient sites are in danger of being pillaged. It seems Cyprus was able to make that claim, though we won't be able to know the actual deliberations which went on because the deliberations of the CPAC are secret.

Cyprus' ambassador Andreas Kakouris said in the NYT article "We are very pleased coins have been added to this ... Coins constitute an inseparable part of our own cultural heritage, and the pillage they are subjected to is the same as other archaeological material."

Representing the other side though is Peter Tompa who said "This decision shows that the Department of State is putting the narrow interest of the cultural bureaucracies of foreign states and the archaeological community over those ordinary Americans who believe that collecting increases appreciation of the past and helps preserve artifacts."

It's a difficult issue I think. The work of numismatists has helped archaeologists to be able to date their finds. However, ancient coins are found in the same areas as other archaeological materials. I argue in my thesis that the bilateral implementation of the 1970 UNESCO Convention which the US and Switzerland have undertaken can be quite effective, and at least gives a voice to the interests of antiquities dealers. They may not think their views are taken into account in the CPAC, but it is a much stronger voice than they have in other nations. The restrictions are limited as well, they extend for five years only, and have to be renewed.

In my view the solution is a compromise which strongly restricts the trade in the most important objects, but allows a limited and licit trade in surplus and other objects. To fund these efforts I propose antiquities leasing and other initiatives. The magic bullet which could end all of these problems though is the publication of detailed provenances for all sales. Unfortunately the current climate does not promote the sharing of that information.

412 Antiquities Repatriated

On Wednesday, US Immigration and Customs Enforcement Officials returned 412 pre-Columbian antiquities to Peru. US Officials said it was the largest repatriation since the 1970s. The objects were returned during a repatriation ceremony at Florida International University in Miami. This is the Consul General of Peru, Jorge E. Ramon Morey. The best reporting is from the Miami Herald, with a slideshow and video, here. The Washington Post has a store here, Reuters has a blurb here and the AP summary can be found here.

They were being hawked by Ugo Bagnato, an Italian citizen, from a 1985 GMC cutaway van. Each antiquity was being sold for as much as $2,000 a piece. He smuggled the objects into the country in 2004 using "fake documents." If I had to guess, I'd say he faked the customs documents. I had heard nothing about this case previously, but it seems Bagnato plead guilty and served 17 months in federal prison. He is now awaiting deportation.

The objects included:

• dolls
• tapestries
• gold jewelry
• burial shrouds
• clay vessels
• ancient fabrics
• a child's tunic
  

The arrest is a welcome sign I think, but of course the archaeological context surrounding the objects has been destroyed. As Morey said, coastal areas in Peru are looted to such an extent that "from an airplane, it looks like the area has been bombed." The objects were returned pursuant to the 1997 bilateral agreement between the two nations. This was the way the US chose to implement the 1970 UNESCO Convention.

This arrest of Bagnato and the repatriation, though welcome, indicate that the current regulation of the international antiquities trade is simply not working. One would expect that a guy selling a 3,000 year-old pot from a van should be apprehended. The objects weren't noticed by Customs officials, because most shipments cannot be satisfactorily examined. Also, the middle-men and actual looters are unlikely to be punished.

Will the high-profile announcement this week serve to discourage the illicit trade? I have my doubts. If such this guy can openly sell objects from his van, I wonder how many illicit objects are sold in the more prestigious auction houses and galleries? We cannot be sure of course, because they do not routinely give provenance for their wares, and until they do, Peru and other source nations will likely continue to lose their archaeological heritage.