At the Crossroads of Cultural Heritage Preservation: SCOTUS Rules on the Peace Cross and the Establishment Clause

The Bladensburg Peace Cross

The Supreme Court of the United States has ruled that an historic, cross-shaped monument may be preserved on public land because it does not violate the Constitution's Establishment Clause.

Cultural property watchers may not have noticed the case of American Legion et al. v. American Humanist Assn. et al. that the United States Supreme Court decided last month and which preserved the display of a cross-shaped war memorial on public property. That’s because the case received greatest attention from religious liberty practitioners and constitutional lawyers monitoring the fate of the controversial Lemon test, which the high court first articulated in 1971 in its landmark decision of Lemon v. Kurtzman—a judicial test that assesses whether there is improper government endorsement or hindrance of religion.

The American Legion case should interest heritage preservationists, nevertheless, because it tackles the recurring question of how public governments are to maintain historic monuments that contain religious symbolism.

Already the outcome of the supreme court's ruling in the American Legion case has prompted the nation's highest court to ask the Eleventh Circuit Court of Appeals to revisit the matter of City of Pensacola, Florida v. Kondrat’yev so that it can reassess whether Pensacola can keep an historic World War II era cross monument erected in a public park.

The American Legion case focused on the intersection between the preservation of a World War I memorial and the terms of the U.S. Constitution’s Establishment Clause. In a 7-2 decision, the supreme court voted to keep the Bladensburg Peace Cross standing, writing, “As our society becomes more and more religiously diverse, a community may preserve such monuments, symbols, and practices for the sake of their historical significance or their place in a common cultural heritage.” “The passage of time gives rise to a strong presumption of constitutionality.”

El Salvador Seeks U.S. Renewal of Cultural Property MoU

El Salvador has petitioned the United States for a Memorandum of Understanding to renew cultural property import controls that preserve archaeological objects from looting and smuggling.

This Maya effigy vessel is one example of the type
of endangered cultural objects looted from El Salvador.

El Salvador is home to archaeological sites that tell us the histories of peoples like the Maya, Nahua and Lencas. To protect this cultural heritage, the government of El Salvador is asking the United States for a Memorandum of Understanding (MoU) to reimpose restrictions on imports of endangered artifacts, first put in place in 1995 and renewed every five years thereafter.

The bilateral agreement of 2015 between the U.S. and El Salvador maintained U.S. import restrictions on specified objects from 8000 B.C. through 1550 A.D. and that are identified on the Designated List. They include figurines, ceramic vessels, incense burners, metal objects, and more cultural artifacts.

El Salvador seeks a continuation of these import protections to protect archaeological material in jeopardy of looting by invoking Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and companion implementing legislation in the U.S., the Convention on Cultural Property Implementation Act (CPIA).

A public hearing on El Salvador's request will be held by the Cultural Property Advisory Committee (CPAC) on July 23, 2019, at 1:30 p.m. EDT. Go on this State Department link to learn how to attend the meeting online.

Photo courtesy of the Secretaría de Cultura de la Presidencia and the U.S. State Department. Text and original photos copyrighted 2010-2019 by Cultural Heritage Lawyer Rick St. Hilaire, a blog commenting on matters of cultural property law, art law, art crime, cultural heritage policy, antiquities trafficking, looted, antiquities, stolen relics, smuggled antiquities, illicit antiquities, museum risk management, and archaeology. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. The materials presented on this site are intended for informational purposes only and should not be used as legal advice applicable to the reader’s specific situation. In addition, the provision of this information to the reader in no way constitutes an attorney-client relationship. Blog url: https://culturalheritagelawyer.blogspot.com.

CPAC Considers Import Restrictions on Cultural Property from Chile and Jordan

The pre-Colombian archaeological site of
Pukará de Quitor in northern Chile.

The governments of Chile and Jordan have petitioned the United States for import controls on at-risk archaeological material.

The Cultural Property Advisory Committee will meet in April to consider import protections covering archaeological objects from Chile and Jordan that are in jeopardy of looting.

Chile is the fourth South American nation to seek a Memorandum of Understanding (MoU) that erects U.S. import controls to stem the trafficking of cultural heritage objects. The United States currently has similar bilateral agreements with Bolivia, Colombia, and Peru.

Jordan, meanwhile, is the third MENA country to seek an MoU with the U.S, as it seeks to join the ranks of Egypt and Libya.

On February 4, Chile invoked Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, asking the United States for import restrictions under the Convention on Cultural Property Implementation Act (CPIA), which is the federal statute that implements the 1970 UNESCO Convention in the U.S.

The Jordanian government submitted a similar request last year on November 26.

The Met's Surrender of a Gilded Egyptian Coffin Presents a Golden Opportunity to Deter Antiquities Looting

The Metropolitan Museum of Art can fight back against antiquities trafficking by hiring a provenance curator and by fully disclosing the chain of custody of collection objects.

Nedjemankh's coffin, surrendered by
the Metropolitan Museum of Art last week.

The Metropolitan Museum of Art in New York has surrendered a celebrated artifact from its collection. The Met announced on Friday that "it has delivered the gilded Coffin of Nedjemankh, for return to the Government of Egypt by the Manhattan District Attorney’s Office, after having learned the Coffin was looted from Egypt in 2011."

The spectacular, human-shaped coffin, dating from the first century B.C. and glittering in gold, anchored the popular Nedjemankh and His Gilded Coffin exhibition, which began in July 2018 and was scheduled to close in April 2019. With the handover of the coffin, the show abruptly came to an end.

Max Hollein, who has not yet completed his first full year on the job as the The Met's new director, now faces a multi-million dollar loss that is likely not covered by insurance and reputational harm to his institution, as well as intense scrutiny of the museum's Collections Management Policy that is supposed to "ensure[] that ... its collections are protected ...."

The district attorney's investigation hopefully leads to the arrest and prosecution of those responsible for trafficking the looted archaeological object and for lying about its provenance. Meanwhile, the museum's loss presents a golden opportunity for one of the world's leading cultural institutions to fulfill Hollein's promise last week to mitigate similar risks in the future and, in the words of Met CEO Daniel Weiss, "to deter future offenses against cultural property."

In 2017, CHL wrote that institutions lacking solid protective measures to guard against acquiring illicit artifacts would face acute legal and reputational risks. CHL asked at that time whether museums effectively shield their collections from legal confiscation, posing the question soon after The Met lost a looted ancient vase to a seizure by search warrant. See Museum Loss Prevention: Apply Rigorous Due Diligence.

Now, in the wake of the relinquishment of the golden coffin, The Met's director announced, “Our museum must be a leader among our peers in the respect for cultural property and in the rigor and transparency of the policy and practices that we follow," adding, "We will learn from this event—specifically I will be leading a review of our acquisitions program—to understand what more can be done to prevent such events in the future."

One way to help reduce the risk of loss is to hire a provenance curator like the one Museum of Fine Arts in Boston has, a professional whose job is to investigate the collecting histories of archaeological artifacts, paintings, and other cultural objects. That person should be full-time and have the experience to navigate the complex art and antiquities trade, which can be tempting to the black market. It is a marketplace that "faces a higher risk of exposure to dubious trade practices ... due to the volume of illegal or legally questionable transactions," as the Basel Art Trade Guidelines accurately points out.

The museum, moreover, should revive its commitment to transparency of provenance information, championed recently by Hollein in The Met's Role in Protecting Cultural Heritage (November 2018) where he writes: "Transparency: ... Our goal is to publish the provenance (or known history of ownership) for all works as part of their entries in our online collection." Provenance should not be limited to "known history of ownership," of course, but must include the fullest description of an object's chain of custody.

Jordan Seeks U.S. Import Restrictions to Protect Archaeological Heritage

Petra in southern Jordan is one of the world's
most famous archaeological sites

The State Department has published notice of Jordan's request for cultural property import controls.

Jordan is home to some of the world's most treasured archaeological sites, including Petra, the baptismal site of Jesus at Bethany, and the castle at Quseir Amrahas. To protect its cultural heritage, Jordan now is asking the United States to place restrictions on imports of its endangered artifacts.

The Federal Register reports that Jordanian authorities petitioned the U.S. government for import controls to protect archaeological material in jeopardy of looting, invoking Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and its companion implementing legislation in the U.S., the Convention on Cultural Property Implementation Act (CPIA).

The State Department received Jordan's petition on November 26, 2018, but the agency only published notice on January 31, 2019.

Jordan is the latest MENA country (Middle East/North Africa) to seek a Memorandum of Understanding (MoU) from the U.S. that would safeguard antiquities put at risk by looters and smugglers.

"No invoices? Cool." Art, Artifacts, and Money Laundering

A look at cases involving art, artifacts, and money laundering helps explain why art and antiquities dealers should be included in anti-money laundering laws.

Money laundering transforms criminals' ill-gotten gains into usable cash or commodities. It also mitigates the risk and anxiety of getting caught. "You don't have to worry about it," an art gallery owner and money launderer confidently assured a potential client, who really was an undercover police officer.

Pretending to be a narcotics trafficker who needed to launder dirty cash, the undercover agent asked the gallery operator if the artworks she wanted to buy could be "in somebody else's name to where if [the undercover] were to ever have to sell it, that [other] person can sell it." The gallery owner explained, "We can do it any way, any way you want." "It doesn't have to be, it doesn't have to be in anybody's name," he said, "It can be in anyone's name you want."

The prosecution of the gallery owner is among the sample of court cases described below that offer a window into the world of art, artifacts, and money laundering.

Why is knowing about money laundering in the sale of art and antiquities important?

Industries that deal with high cash value transactions are the first lines of defense against money laundering. Banks, life insurers, casinos, precious metal dealers, automobile sellers, travel agencies, and other sectors are best positioned to become aware of unusual financial transactions early. That's the reason why the Bank Secrecy Act (BSA) directs certain of these businesses to file Suspicious Activity Reports (SARs) with the U.S. Treasury's Financial Crimes Enforcement Network (FinCen) and requires designated sectors to maintain risk-based anti-money laundering (AML) programs.

Art and antiquities dealers do not fall under the BSA's directives, yet they are susceptible to money laundering. Like other trades and businesses, they are required to file Form 8300 when they receive more than $10,000 in cash, cashier's checks, bank drafts, traveler's checks, or money orders either from a single or several related transactions. But they are not part of the BSA's reporting, recordkeeping, and anti-money laundering program requirements even though they sometimes receive large amounts of cash for high value goods.

In its National Money Laundering and Terrorist Financing Risk Assessment (2013) report, the Financial Action Task Force (FATF) expressly called attention to the illegal trading of antiquities as a predicate crime of money laundering. FATF, in fact, specifically flagged art and antique dealers as a commercial sector that must "build[] a list of the [money laundering/terrorist financing] vulnerabilities that can be exploited." They additionally need to assess "the adequacy of their [anti-money laundering/counter-financing of terrorism] controls."

Both FATF's report and the Basel Art Trade Guidelines' (2012) conclusion that "the art market faces a higher risk of exposure to dubious trade practices" is why CHL in 2014 called for taking a fresh look at federal AML laws and why CHL later listed such improvements as one of the top six law enforcement recommendations to combat transnational cultural heritage trafficking.

Congress made initial progress on this topic last year when Rep. Luke Messer (R-IN-6) introduced the Illicit Art and Antiquities Trafficking Prevention Act (H.R. 5886) in the U.S. House of Representatives. The bill sought the addition of "dealers in art or antiquities" to the BSA. Although the legislation sat idle in 2018, it could be presented to lawmakers again in 2019. In the meantime, the nonprofit Antiquities Coalition has started to focus vital attention to the AML issue.

2018 In Review

Happy New Year! CHL looks forward to beginning its tenth year of blogging.

Thank you readers and subscribers for taking an interest in the issues surrounding cultural property law and heritage preservation policy.

As we begin 2019, let's look back at the five most popular posts from 2018.



1. [VIDEO] "Moxie" Sniffs Out the Scent of Antiquities

2. Rubin v. Iran: Supreme Court Says Persepolis Collection Will Stay at the Oriental Institute

3. How to Secure an Archaeological Site: ASIS Releases New Case Study on Clunia

4. Proposed Bill Enlists Art & Antiquities Dealers in the Fight Against Money Laundering

5. AUSA Calls Baltimore Test Case "A Numismatic Fantasy"

Photo credit: Svilen Miley/freeimages.com
Text and original photos copyrighted 2010-2019 by Cultural Heritage Lawyer Rick St. Hilaire, a blog commenting on matters of cultural property law, art law, art crime, cultural heritage policy, antiquities trafficking, looted, antiquities, smuggled antiquities, illicit antiquities, museum risk management, and archaeology. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited. The materials presented on this site are intended for informational purposes only and should not be used as legal advice applicable to the reader’s specific situation. In addition, the provision of this information to the reader in no way constitutes an attorney-client relationship. Blog url: http://culturalheritagelawyer.blogspot.com.

Court Dismisses Dinosaur Forfeiture Case

Missed statute of limitations deadline prompts government to lose cultural property forfeiture case filed in Texas.

The fossilized Tyrannosaurus bataar skull.

A missed deadline has caused federal prosecutors to lose their court case to confiscate a dinosaur skull allegedly pilfered from Mongolia. "[T]he Court finds that the Government’s request for a final order of forfeiture for the Defendant Bataar Skull should be and is hereby DENIED," wrote U.S. District Judge Reed O'Connor in a decision rendered last week. The dismissal in the case of U.S. v. One Fossilized Tyrannosaurus Bataar Skull (17-cv-00106-O) is the second time that the court has quashed the government's forfeiture action.

Expanded Counter Terrorism Network Could Help Antiquities Trafficking Prosecutions

Prosecutors' Counter Terrorism Network could leverage criminal cases against cultural heritage traffickers.

A new project launched this week by the International Association of Prosecutors (IAP) aims to build better connections between counter-terrorism (CT) prosecutors.

The initiative should be welcome news to those few prosecutors worldwide who monitor antiquities trafficking and its links to organized crime, smuggling rings, and terror groups.

Illicit Financial Flows and Cultural Heritage Trafficking

Cultural heritage trafficking and illicit financial flows should be probed by law enforcement.

Cultural heritage trafficking is a serious crime. Like most serious crimes, heritage trafficking is associated with other crimes such as lying on customs forms, falsifying invoices, wire fraud, money laundering, and even genocide.

Now the World Customs Organization has published a report on illicit financial flows (IFFs). Although the report--titled Illicit Financial Flows via Trade Mis-invoicing Study Report 2018--is silent on the topic of IFF's relationship to cultural heritage trafficking, its observations and analyses apply, which is why the association between heritage trafficking and illicit financial flows should be probed by law enforcement authorities.

Baltimore Test Case: Fourth Circuit Rejects Ancient Coin Collectors' Claims

Fourth Circuit Court of Appeals

The United States Court of Appeals for the Fourth Circuit has issued a unanimous decision rejecting the Ancient Coin Collectors Guild's (ACCG) effort to strike down U.S. import controls that protect ancient coins from transnational looting and trafficking.

"Having already received two hearty bites at the proverbial apple, .... we are satisfied to reject each of the Guild’s contentions on appeal," wrote the appellate court in the case of U.S. v. Three Knife-Shaped Coins; 7 Cypriot Coins; 5 Other Chinese Coins.

Preemptive Rulings Sought in Moon Dust and Bronze Horse Cases

Note reportedly written by Neil Armstrong.
Source: court papers filed in Cicco v. NASA

“To Laura Ann Murray – Best of Luck – Neil Armstrong Apollo 11.” This message accompanied a vial of moon dust that Laura Cicco (neé Murray) received from her mother when she was about ten years old. The first man to set foot on the moon scribbled the note on the back of a business card carried by Cicco's father, who was friends with Armstrong.

These are some of the claims Cicco makes in a declaratory judgment (DJ) pleading her lawyer filed in Kansas federal court on June 6.

Importer Restored Ancient Mosaic. FBI Seized It. Now U.S. Attorney Seeks Forfeiture.

Defendant mosaic seized by the FBI that prosecutors say measures
18 ft. x 8 ft. and weighs approximately one ton.

In a recently filed civil forfeiture case involving cultural property, prosecutors in the U.S. Attorney’s Office for the Central District of California say that an importer failed to meet the obligations of 19 U.S.C. §§ 1481 and 1484, which require true and accurate information on invoices and entry documents.

Government lawyers allege in United States v. One Ancient Mosaic (18-CV-04420) that the importer failed to supply an accurate description of the ancient mosaic, listed a false value for the artifact, entered a false country of origin, failed to classify the mosaic under the correct Harmonized Tariff Schedule, and failed to declare the artifact as an antiquity. Simply put, prosecutors say that “the defendant mosaic was illegally imported and entered into the United States in violation of United States law.”

Proposed Bill Enlists Art & Antiquities Dealers in the Fight Against Money Laundering

The U.S. House of Representatives will consider a bill that adds art and antiquities dealers to the Bank Secrecy Act (BSA). Introduced last Friday by Representative Luke Messer (R-IN-6), H.R. 5886 would aid law enforcement's effort to uncover money laundering and terrorist financing schemes.

Titled the "Illicit Art and Antiquities Trafficking Prevention Act," the bill replies "yes" to the question, Shouldn't Art and Antiquities Sellers Be Subject to Anti-Money Laundering/Counter-Terrorist Financing Laws?, and it satisfies one of the six proposed recommendations to combat cultural heritage crime.

America's anti-money laundering and counter-terrorist finance laws (AML/CTF) such as the BSA generally require luxury and cash-intensive industries to satisfy recordkeeping requirements to identify and report possible criminal activity. Banks and casinos are just some of the sectors already required to file Suspicious Activity Reports (SARs) with U.S. Treasury's Financial Crimes Enforcement Network (FinCEN). Under the terms of the legislation proposed last week, art and antiquities dealers also would be included.

New European AML/CTF Legislation Includes Art Dealers and Flags Cultural Artifacts Transactions

European Parliament

Members of the European Parliament have adopted a legislative resolution endorsing a December 2017 agreement with the European Council that, for the first time, includes art dealers and auction houses in the European Union's anti-money laundering/counter-terrorist financing (AML/CTF) compliance rules.

Directive (EU) 2015/849 is the EU's primary legal weapon to combat money laundering and terrorist financing. It has been updated four times. The Directive regulates designated high-cash sectors (e.g., banks, casinos) to prevent them from being financially co-opted by organized crime groups and terrorists. The legislation approved by the Parliament on April 19 seeks to broaden the Directive by including cultural property dealers on the list of regulated sectors.

Cultural Property Groups Weigh In on China MoU (including how to watch the May 2, 2018 CPAC hearing live)

CLICK HERE TO WATCH CPAC'S PUBLIC HEARING ON MAY 2, 2018 AT 3PM EDT.

The cultural property Memorandum of Understanding (MoU) between the United States and China is up for renewal.

The MoU memorializes the two nations' bilateral agreement--first adopted in 2009 and later renewed in 2014--that imposes American import restrictions on endangered Chinese archaeological objects. These protections are authorized by the Convention on Cultural Property Implementation Act (CPIA), the federal law that gives effect to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

The MoU renewal under consideration covers artifacts dating from 75,000 B.C. through 907 A.D., as well as monumental and wall art 250+ years old.

AUSA Calls Baltimore Test Case "A Numismatic Fantasy"

AUSA Molissa Farber

"It's not a case about coins that the Guild wants. This is a case about regulations that the Guild doesn't want." That's how Assistant United States Attorney Molissa Farber characterized the Ancient Coin Collectors Guild's (ACCG) latest argument before the Fourth Circuit Court of Appeals in the Baltimore test case.

Both the ACCG and federal government offered oral arguments to the appeals court on March 22, marking the case's ninth year winding through the court system.

Listen to the arguments presented in U.S. v. Three Knife-Shaped Coins et al. here. Attorney Peter Tompa argued for the Guild, and Attorney Farber for the government.

[VIDEO] A First: Police Make Antiquities Trafficking Arrests in Terrorist Financing Case

Police have arrested two men in Barcelona, Spain for their alleged role in financing ISIS terrorism by acquiring and selling blood antiquities.

Georgi Kantchev of The Wall Street Journal reported that "Spanish police are holding two men suspected of trading in antiquities looted by groups linked to Islamic State, the first publicly announced detentions by Western authorities working to dismantle the terrorist group’s trade in plundered art."

The Ministerio del Interior issued a statement explaining that the men, both Spanish nationals and antiquities experts, were detained on crimes of terrorist financing, belonging to a criminal organization, receiving stolen property, smuggling, and falsification of documents.

Video courtesy of Policia Nacional, Ministerio del Interior, Government of Spain.

"The detainees were part of a network based in Catalonia and international branches dedicated to the acquisition and sale of works of historical-archaeological value from territories that were under siege from groups related to the organization, DAESH," the ministry revealed. DAESH is the Arabic acronym for ISIS.

How to Secure an Archaeological Site: ASIS Releases New Case Study on Clunia

Click on the pic above and read the ASIS CRISP Report.

Protecting heritage during times of war is a topic that receives significant attention. Just read about last October's Preserving Cultural Heritage in Times of Conflict conference at Colgate University, or Sam Hardy's recent article about "Curbing the Spoils of War," or Neil Brodie's and Isber Sabrine's new publication titled "The Illegal Excavation and Trade of Syrian Cultural Objects: A View from the Ground."

Make no mistake, this issue deserves a spotlight because violent conflict creates fresh opportunities to sharply increase the trafficking of cultural heritage objects ravaged from archaeological sites.

But what about protecting archaeological sites during times of peace?

Rubin v. Iran: Supreme Court Says Persepolis Collection Will Stay at the Oriental Institute

The University of Chicago no longer is in danger of losing ancient Iranian artifacts following Wednesday's United States Supreme Court decision in the case of Jenny Rubin, et al. v. Islamic Republic of Iran.

The university's Oriental Institute (OI) holds the "Persepolis Collection," which consists of approximately 30,000 archaeological artifacts on loan from the National Museum of Iran since 1937.

The cultural objects became the target of a civil suit after American terrorist victims tried to execute a multi-million dollar court judgment against Iran. When Iran failed to pay, the plaintiffs sought to execute their judgment by trying to acquire the Iranian artifacts at OI and others located at various cultural institutions throughout the United States.