Saturday, February 19, 2011

SLAM's Federal Court Action: Summary and Comment on the Saga of the Mummy Mask

The St. Louis Art Museum (SLAM) on February 15, 2011 filed a lawsuit against the United States seeking a declaratory judgment in the case of the Ka-Nefer-Nefer mummy mask. It is helpful to explain both what this lawsuit is about and what missing information and discrepancies are starting to appear at this early stage of the court process.

Summary of SLAM’s Complaint and Legal Arguments

A declaratory judgment is a binding ruling by a court that decides a party’s rights in a dispute. It is a preventive action taken when a party believes that it will face impending legal action. In this case, SLAM filed a complaint in federal district court to prevent authorities from seizing the mummy mask in its possession. SLAM’s complaint suggests that federal authorities were preparing to seize the controversial mummy mask of Ka-Nefer-Nefer, excavated in 1952 in Egypt and purchased by the museum in 1998 from Phoenix Ancient Art, Geneva. The complaint alleges that “counsel for the Museum was contacted by the United States Attorney's Office for the Eastern District of Missouri in St. Louis, to request a meeting regarding the Mask. On January 13, 2011, the U.S. Attorney's Office in St. Louis hosted a meeting regarding the Mask. In attendance were Assistant U.S. Attorneys from the St. Louis U.S. Attorney's Office and, telephonically, the Southern District of New York, and agents from DHS in St. Louis and, also telephonically, a DHS agent stationed in Cairo, Egypt. During this meeting, the Assistant U.S. Attorneys communicated their intention to seize and forfeit the Mask pursuant to 19 U.S.C. 1595a.” The museum responded by filing the current petition for declaratory judgment.

SLAM wants the federal district court in St. Louis to declare that the mummy mask cannot be seized by federal officials. The museum essentially argues that the US government cannot legally take the mask because the statute of limitations has run out and because there is no reason to believe that the mask is Egyptian property or that it was illegally stolen or smuggled into the United States.

The museum presumes that federal authorities wish to seize the mummy mask under a specific section of the US customs law, specifically 19 U.S.C. §1595a. There are other means to seize the mask under federal or state law, but SLAM assumes (not unreasonably) that this particular law would be used.

The museum first argues that the time has run out for the federal government to seize the mummy mask. SLAM’s lawyers point to the fact that the US government had, at most, five years to seize the mask from the time it had information that the mask was allegedly stolen. The museum cites several examples of how it believes federal officials possessed this knowledge as early as 1998, including that
- the US Department of Justice in February 1998, actually or constructively, received from INTERPOL the museum’s letter inquiring about whether the mask was stolen or illicit and

- the FBI in December 2005 and January 2006 knew or should have know about allegations that the mask was stolen because the founder of the Museum Security Network sent emails to the FBI Art Crimes Program asserting that the mask was probably stolen.

SLAM therefore argues that the United States cannot seize the mummy mask because the statute of limitations clock set by 19 U.S.C. §1621 now forbids it.

Second, the museum claims in its complaint that even if the statute of limitations clock has not run out, federal authorities still cannot seize the mummy mask because “[t]he Museum’s investigation revealed no evidence that the Mask was owned by Egypt under applicable Egyptian law at the time of excavation, that the Mask was stolen from Egypt, or that the Mask had unlawfully entered the United States.”

SLAM argues that federal agents cannot take the mask because the government cannot produce sufficient information to show that the mask was stolen or smuggled into the United States pursuant to 19 U.S.C. §1595a. The museum further points out that “Egyptian Law No. 215 on the Protection of Antiquities, the [cultural patrimony] law applicable at the time the Mask was discovered and excavated, allowed for personal and private ownership of Egyptian antiquities, provided that antiquities could be sold or gifted and, as such, did not establish ownership of the Mask by Egypt.” The museum’s lawyers conclude that “the United States lacks an evidentiary basis for asserting the Mask was stolen pursuant to Egyptian Law No. 215, or seizing and/or causing the forfeiture of the Mask pursuant to 19 U.S.C. § 1595a.”

Now that the complaint has been filed by SLAM, federal attorneys will file a response.


Emerging Missing Information and Discrepancies

SLAM’s complaint says that it purchased the mummy mask sometime in April 1998 from Phoenix Ancient Art in Geneva, Switzerland. The museum acknowledges that Mohammed Zakaria Goneim excavated the mask near King Sekhemkhet’s unfinished pyramid in Saqqara sometime around 1952. SLAM’s reported history of the mask (the provenance) picks up in the early 1960s when the museum reports that “the Mask was a part of the Kaloterna (or Kaliterna) private collection, during which time it was purchased by Ms. Zuzi Jelinek ('Jelinek'), a Croatian collector in Switzerland. In or around 1995, Jelinek sold the Mask to Phoenix Ancient Art, S.A. of Geneva ('Phoenix'). On or about April 3, 1998, the Museum purchased the Mask from Phoenix.”

Absent from the legal complaint are significant pieces of information that one hopes will be filled-in during the ensuing litigation. The court process can oftentimes shed light on murky or unknown facts, and supplemental information in this case can fill in important gaps and clear up lingering discrepancies. A few are described here.

For example, SLAM’s description of the mummy mask’s provenance in its legal complaint differs from the mummy mask’s chain of custody as reported by the Riverfront Times in 2006. That newspaper reviewed the provenance of the mask based on paperwork supplied by SLAM. The Riverfront Times reported that the mask went from excavation/Egypt - to an unknown Brussels dealer sometime around 1952 – to Kaloterna - to Jelinek – to Phoenix Ancient Art/Aboutaam brothers. SLAM’s legal complaint states that the mask went from excavation/Egypt - to the Kaloterna private collection – to Zuzi Jelinek – to Phoenix Ancient Art/Aboutaam brothers.

SLAM’s legal complaint omits a description of who exactly took possession of the mask after it was excavated by the Egyptians. Most importantly the complaint is silent about how an excavated and documented mummy mask legally exited Egypt in the first place. The court papers filed also ignore the fact that Goneim was an antiquities inspector in Egypt and was the archaeologist who discovered Sekhemket’s pyramid site. Goneim’s status as both a scientist and an Egyptian government official/employee are important facts since issues about what laws and regulations he and his Egyptian superiors followed during the 1950s and 1960s are likely to be significant to the question of whether the mask was stolen.

Curiously, the legal complaint also avoids any mention at all of the mask having been seen with a Brussels antiquities dealer. The Riverfront Times reported that SLAM received documents from Phoenix Ancient Art that included a 1997 note from Charly Mathez, an elusive Swiss man, which explained how he spotted the mask in 1952 in the hands of an unidentified antiquities dealer located in Brussels, Belgium. The absence of this information from the legal complaint raises questions.

In any case, the SLAM’s complaint also omits a description of how the mask made its way from the point of excavation to the Kaloterna private collection, or a description of who owned this collection. There is also no information about the date or the nature of the transfer from the Kaloterna private collection to Zuzi Jelinek in Switzerland. The hazy information currently supplied in the legal complaint should be described more fully as the case continues through the federal process.

Meanwhile, SLAM’s assertion that Jelinek sold the mask to Phoenix Ancient Art will likely be challenged by the federal government. The Riverfront Times described an unusual transaction between Zuzi Jelinek and Phoenix Ancient Art, or perhaps the lack of a transaction at all. The newspaper explained:

“According to Swiss telephone listings, a Suzana Jelinek-Ronkuline lives at 84 Quai de Cologny in Geneva. Her telephone number is identical to the one on the letter Phoenix Ancient Art provided to the St. Louis museum. Reached by phone in Geneva, a man identifying himself as Jelinek's son, Ivo Jelinek, says his mother never owned the Ka-Nefer-Nefer mask. ‘This is completely false information. . . .’ Jelinek says his mother's name may be linked to the Ka-Nefer-Nefer mask for another reason: the Aboutaam brothers, owners of Phoenix Ancient Art, rented another house she owns on Quai de Cologny. . . . Presented with this information, Hicham Aboutaam directed the Riverfront Timesto a woman identifying herself as Suzana Jelinek, of Zagreb, Croatia. ‘I bought the mask many many years ago, and I sold it many many years ago,’ says Suzana Jelinek when reached at her Zagreb home. ‘I have so many things in my collection that my children don't know what all I have.’”

Phoenix Ancient Art allegedly bought the mask in 1997 from Jelinek. The purchase price paid by Phoenix was not known, according to the Riverfront Times. But this price hopefully will be reported during the current federal litigation since an object’s fair market value or its undervalue is a piece of evidence used to determine whether property was legally or illegally transferred. It also goes without saying that evidence of a purchase and sale can certainly establish whether Jelinek engaged in a transaction involving the mask. That evidence can take many forms, including evidence of the parties’ bank statements for example, documenting the release of purchase money or the deposit of sale money.

Also of interest is the museum’s reported due diligence. One must always ask “What diligence is due?” The museum’s complaint certainly details a variety of concrete and laudible steps taken to verify the mummy mask’s provenance. However, several questions remain regarding the actual information learned through that diligence and how that information was accepted or rejected when deciding to purchase the mask.

Hopefully we will learn more as the case progresses.


Sources:
THE ART MUSEUM SUBDISTRICT OF THE METROPOLITAN ZOOLOGICAL PARK AND MUSEUM DISTRICT OF THE CITY OF SAINT LOUIS AND THE COUNTY OF SAINT LOUIS v. THE UNITED STATES OF AMERICA, SLAM’s complaint for Declaratory Judgment (February 15, 2011) (http://www.courthousenews.com/2011/02/16/MummyMask.pdf) (last visited February 19, 2011).

Malcolm Gay, “Out of Egypt: From a long-buried pyramid to the Saint Louis Art Museum: The mysterious voyage of the Ka-Nefer-Nefer mask,” Riverfront Times, Feb. 15, 2006 (http://www.riverfronttimes.com/2006-02-15/news/out-of-egypt/full) (last visited February 19, 2011).

Tuesday, February 15, 2011

The Need for Reliable Information From Egypt

The Egyptian people are to be lauded for their desire for liberty, which has borne significant fruit thus far. George Washington noted that "[l]iberty, when it begins to take root, is a plant of rapid growth." We must always be mindful, nevertheless, of Alexis de Tocqueville's observation that "[i]n a revolution, as in a novel, the most difficult part to invent is the end."

The welfare of the Egyptian people are to be considered first while we continue to monitor cultural property issues. One issue that requires attention is obtaining reliable information. The lack of credible information regarding the theft or looting of cultural objects in Egypt requires resolution, especially since many cultural organizations have called on law enforcement to remain alert. Authorities at the US border cannot be expected to be on heightened alert when there is conflicting information about the extent of looting at archaeological sites or thefts from museums.

Egytians involved with cultural heritage, aided by journalists on the ground, should investigate the extent of damage to cultural heritage in Egypt. Only then can American authorities provide appropriate assistance.

Saturday, February 5, 2011

Reclaiming Trafficked Egyptian Cultural Objects: US Seizure Laws and How to Make a Report to Customs and Border Protection

The Egyptian people have displayed admirable concern for cultural heritage by protecting museums and archaeological sites while courageously expressing their hope for self-determination. It is a credit to the people that the intact Egyptian Museum remains a centerpiece of news images coming from Tahrir Square.

There are naturally reports of theft, vandalism, and looting during this time of upheaval, prompting calls to international law enforcement to remain on the lookout for Egyptian antiquities illegally trafficked from the country.

Some have asked how United States authorities can seize Egyptian antiquities spotted crossing the American border. Others have asked how to report suspected illegal activity. Some answers are briefly provided here.

CBP Officer Herbert Kercado stands near
an illegally imported Egyptian sarcophagus
he discovered in Miami, Florida.
Photo courtesy CBP, March 2010.
US Customs and Border Protection (CPB) of the Department of Homeland Security is the front-line agency primarily responsible for the initial detention of contraband that arrives on American soil. Its officers, and other agents of Homeland Security--such as Immigration and Customs Enforcement (ICE) officers and ICE Homeland Security Investigations (HSI) officers--rely on federal rules that authorize the seizure of illegally imported cultural property. Some of these rules are described here.  Meanwhile, reports regarding import/export violations can be made to CPB as described below.

NSPA Seizure
Customs officers have authority to seize a stolen Egyptian antiquity under the National Stolen Property Act (NSPA) when:
• it is valued at $5000 or more,
• is known to have been stolen,
• is covered by Egypt’s patrimony Law No. 117 of 1983, amended by Law No. 3 of 2010, and
• is transported over the American border.

Under this scenario, authorities would rely on Titles 19 and 18 of the federal code in conjunction with the McClain/Schultz doctrine. Title 19 is the portion of federal law that contains the customs statutes, in particular the Tariff Act of 1930, 19 U.S.C. §1595a(c)(1)(A). Title 18 contains the criminal code, which includes the National Stolen Property Act (NSPA), 18 U.S.C. §2314. The McClain/Schultz doctrine, meanwhile, is a court defined rule that takes into account a foreign nation’s patrimony law. United States .v Schultz, 333 F.3d 393 (2nd Cir. 2003).

By way of explanation, the third element of the NSPA seizure rule depends on Egypt having a strong patrimony law. A federal court in the case of United States v. Schultz determined that Egyptian Law on the Protection of Antiquities (Law 117) is a patrimony law that asserts Egyptian public ownership of antiquities—as of 1983—and restricts private possession or ownership of cultural property. Law 117 was later strengthened by Law 3 in 2010, and this revision would not likely affect the Schultz court's conclusion.

There may also be a claim of forfeiture made under 18 U.S.C. § 981, applying to property “derived from proceeds traceable to a violation of” a statute such as the NSPA.

Stolen Egyptian artifacts may be seized by customs pursuant to an NSPA seizure, but artifacts can slip by. For example, an object that is extremely valuable to archaeologists as evidence of Egyptian’s history may be worth less than $5000, and determining whether an object is “stolen” can present a challenge.

CPIA Seizure
Other seizure authority may be found in Title 19’s Cultural Property Implementation Act (CPIA). The CPIA states that “[n]o article of cultural property documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution . . . which is stolen from such institution [after April 12, 1983] . . . may be imported into the United States.” 19 U.S.C. §2607. Items that were inventoried and then stolen from Egyptian museums, churches, monuments, etc. may therefore be seized and forfeited by customs officials under a CPIA seizure. 19 U.S. C. §2609. (Note that there may be a legal argument against this reasoning, however.)

A CPIA seizure of this kind is different from an NSPA seizure. The customs officer does not have to worry about whether an object is valued at $5000, for instance. The CPIA’s focus is on whether a cultural object is stolen from an institution or monument, whether it is part of a documented inventory, and whether it is considered to be cultural property. Cultural property is broadly defined as “property which, on religious or secular grounds, is specifically designated by each State [Party to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970] as being of importance for archaeology, prehistory, history, literature, art or science . . . .” Cultural property can include anything described in Article 1 of the 1970 UNESCO Convention, including rare fauna, paleontological artifacts, archaeological objects, dismembered historical monuments, and more. 19 U.S.C. §2601.

There are problems with CPIA seizures. For instance, cultural property that is freshly looted from the ground is not part of a documented inventory. Objects secretly dug up from Saqqara, Abusir, or other historic site in Egypt could slip through these seizure rules. Additionally, Egyptian government leaders might be reluctant to declare that thieves stole artifacts from their institutions or sites for political or security reasons, and US customs officials would not be expected enforce federal law under these circumstances.

ARPA Seizure
There is an argument to be made that seizure of Egyptian antiquities could also be made under the Archaeological Resources Protection Act (ARPA). Under 16 U.S.C. §470ee(c) and criminal seizure rules, archaeological resources could be seized if they were trafficked in foreign commerce in violation of state or local law. But a seizure of Egyptian antiquities under this statute can be complicated and perhaps legally uncertain. Indeed, it should be noted that this type of seizure is not listed as an option in customs agents’ Seized Asset Management and Enforcement Procedures Handbook. But it has been used successfully in the past, and ARPA search warrant procedures are taught at the Federal Law Enforcement Training Center. §470ee(c) was once used to seize and forfeit Etruscan pottery in NY that violated NY’s receiving stolen property law, for example.

Complementary Legislation
Existing cultural property seizure rules may not be enough to secure all illicit Egyptian cultural artifacts potentially coming across the border. If there is critical concern that cultural objects from Egyptian museums or archaeological sites have been stolen or looted, and if there is further concern that these objects are being trafficked outside Egypt, then US lawmakers should seriously contemplate adopting additional measures of protection. The passage of an Emergency Protection of Egyptian Cultural Antiquities Act, enacted pursuant to 19 U.S.C. § 2603 of the CPIA, could prove useful to a determined effort designed to tackle the problem. Such a law could more clearly focus the attention of law enforcement and the public on Egyptian cultural heritage at risk. It could also provide due process requirements while permitting the seizure of Egyptian cultural objects regardless of whether they were known to have been stolen from a cultural institution, looted from the ground, or had any monetary value.

Reporting Illegal Egyptian Cultural Property Imports
If you suspect that a cultural object from Egypt has been looted, stolen, or trafficked you should report it to US Customs and Border Protection. It is easy over the internet. Just fill out the secure form at https://apps.cbp.gov/eallegations/. You can also make a report by telephone by calling 1-800-BE-ALERT.

Understanding Federal Law Enforcement's Heritage Protection Efforts
The Archaeoligical Institute of America in August 2010 posted a description of how federal law enforcement approaches heritage protection. It describes in greater detail the interaction between the various laws described here and the federal agencies that enforce them. Read it at http://www.archaeological.org/news/advocacy/2564.

ICOM Preliminary Report Regarding Cultural Property in Egypt

The International Council of Museums has released a working document that attempts to summarize the condition of the Egyptian Museum in Cairo as well as several other important museums and cultural sites throughout the country. ICOM's report can be located on the web at:

http://icom.museum/fileadmin/user_upload/pdf/working_groups/110204_ICOM_preliminary_report_Egypt.pdf

Tuesday, February 1, 2011

Conflicting Reports About Abusir: "Nothing Has Been Stolen" v. "Targeted By Thieves"

Starkly contrasting reports have been given about the condition of archaeological sites at Abusir. Abusir is home to a Fifth Dynasty royal necropolis containing over a dozen pyramids, including those of Sahure and Nefirirkare.

Zahi Hawass, newly appointed Minister for Archaeology, told Fox News today: “Everything is safe at the site of Abusir." “Nothing has been stolen from Abusir.”
(Source: www.foxnews.com/scitech/2011/01/31/egypts-treasures-saved-looters-vandals/#ixzz1CegBUuMY)

But Miroslav Barta, a leading archaeologist who conducted the first satellite mapping of the pyramid fields of Abusir, yesterday reported the following for Czech Position:
"Archeological objects in the pyramid field of Abusir uncovered by Czech expeditions over the last 50 years were also targeted by thieves. The extent of the damage caused will have to be examined later because organized gangs are operating in the desert both night and day. Although these gangs’ raids are haphazard, it’s almost certain that artifacts of immeasurable historical value have been destroyed or damaged." Professor Barta added that "[t]he information about the state of the monuments in the pyramid field came from Egyptian colleagues who had been shot at by gangs of raiders."
(Source: www.ceskapozice.cz/en/news/foreign-affairs/czech-egyptologist-ancient-egyptian-sites-damaged-during-unrest)

Meanwhile Nick Parker, Chief Foreign Correspondent at The Sun, today reported from Abusir that archaeology in the area had been hit by thieves.
(Source: www.thesun.co.uk/sol/homepage/news/3383389/SCHOLARS-fear-losing-Egypts-antiquities-as-museums-are-looted-in-revolt-against-tyrant.html)

The reports by Barta and Parker support information contained in an email posted earlier on this blog by Sarah H. Parcak, Assistant Professor at the Department of History and Anthropology at the University of Alabama at Birmingham. The email described archaeological damage at the Abusir site.