Ahead of Term's End, President Makes Several Cultural Heritage Board Appointments

President Barack Obama, over the past few months, appointed several men and women to serve on key boards, commissions, and committees that impact cultural heritage policy. His term in office ends on January 20, 2017.

The five people named to the Cultural Property Advisory Committee included Dorit D. Straus, appointed on December 15, and Adele Chatfield-Taylor, Shannon Keller O'Loughlin, James K. Reap, and Jeremy Sabloff, appointed on September 16. Mr. Sabloff was designated as CPAC chairman, replacing Dr. Patty Gerstenblith. CPAC members supply advice when foreign countries petition the United States for help to protect cultural heritage in jeopardy of looting under the terms of the 1970 UNESCO Convention. The committee consists of 11 members.

The National Museum and Library Services Board, meanwhile, saw the appointment of nine people. The board guides the Institute of Museum and Library Service director on policy matters and consists of 20 members of the general public. The three appointed on December 15 included Lynne M. Ireland, Mort Sajadian, and Kenneth J. Schutz, and the six appointed on November 21 included Sayeed Choudhury, Luis Herrera, Homa Naficy, Tey Marianna Nunn, Jane Pickering, and Beth Takekawa.

On December 21, the President named Reno Keoni Franklin to the Advisory Council on Historic Preservation (ACHP). He serves as the new Native American/Native Hawaiian member of the ACHP. Earlier on November 3, the President appointed Leonard Andrew Forsman as member and vice chair. The most recent appointment before that was Luis G. Hoyos on August 4. The 23 member ACHP, created by the National Historic Preservation Act, advises the federal government on historic preservation policy.

President Obama also appointed Lesley Israel to the Commission for the Preservation of America’s Heritage Abroad on December 7. A day earlier, he appointed Rebecca Hankins and Naomi L. Nelson to serve on the National Historical Publications and Records Commission.

The Commission of Fine Arts, made up of seven experts who advise the government about Washington, DC's architecture, saw the appointment of two members on November 3 and two more on October 28. Named to the commission were Earl A. Powell III, Elizabeth K. Meyer, Toni L. Griffin, and Alex Krieger.

Finally, on September 28, the President sent two names to the Senate for appointment to the National Council on the Arts, Virginia Johnson and Sylvia Orozco.

Photo credit: Pond5.com/PublicDomain

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

New Cultural Heritage Laws Enacted

President Barack Obama put his signature this month on three pieces of legislation that are important to cultural heritage protection. Enacted into law on December 16 were the Holocaust Expropriated Art Recovery Act (HEAR), the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA), and the National Park Service Centennial Act (NPSCA).

The HEAR Act (Public Law No: 114-308) makes it easier for claimants to recover stolen World War II era artwork. The law softens statute of limitations hurdles by permitting a six year window to file a lawsuit after the art is found:

Notwithstanding any other provision of Federal or State law or any defense at law relating to the passage of time, and except as otherwise provided in this section, a civil claim or cause of action against a defendant to recover any artwork or other property that was lost during the covered period because of Nazi persecution may be commenced not later than 6 years after the actual discovery by the claimant or the agent of the claimant of—
(1) the identity and location of the artwork or other property; and
(2) a possessory interest of the claimant in the artwork or other property.

The HEAR Act enjoyed bipartisan support on Capitol Hill. Senators John Cornyn (R-TX), Ted Cruz (R-TX), Chuck Schumer (D-NY) and Richard Blumenthal (D-CT) introduced the measure, which the Senate Judiciary Committee unanimously adopted on September 15. House Judiciary Committee Chairman Bob Goodlatte (R-VA) and Congressman Jerrold Nadler (D-NY) introduced the bill in the House. 

Watch the video below, courtesy of C-SPAN, of a joint hearing conducted by two Senate Judiciary subcommittees that discussed the HEAR Act in June.

President Obama also signed into law this month the FCEJICA (Public Law No: 114-319), which CHL reported in an earlier blog post. This law also earned broad bipartisan support on Capitol Hill. It buttresses legal safeguards to protect foreign art on temporary loan to US museums from judicial seizures.

Finally, the NPSCA became law (Public Law No: 114-289). It amends the National Historic Preservation Act (NHPA) to transform the part-time chairman of the Advisory Council on Historic Preservation (ACHP) into a full-time post, effective January 20, 2017. The ACHP is a body that advises the President and Congress on national historic preservation policy. The new law also endows the General Chairman of the National Association of Tribal Historic Preservation Officers (NATHPO) with voting rights on the ACHP.

The NPSCA passed the Senate by unanimous consent on December 10 and passed the House by voice vote on December 6 before becoming law.

Photo credit: Tim Nooteboom/freeimages.com

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Felony Charges Against NY Antiquities Dealer Begins Cultural Property Prosecution in State Court

New York antiquities dealer Nancy Wiener has been charged with three felony counts by the Manhattan District Attorney's Office. A pre-arraignment deposition was given today, and bail was set at a combination of $25,000 bond plus $25,000 cash.

A charge begins the criminal court process. It is not a finding of guilt. A defendant is presumed innocent unless proven guilty beyond a reasonable doubt.

In March, Homeland Security Investigations (HSI) in partnership with the Manhattan District Attorney’s Office seized Asian artifacts from the Nancy Weiner’s Gallery on Manhattan’s East Side during Asia Week, one of the city's leading art and cultural events. HSI and another Immigration and Customs Enforcement Agency, US Customs and Border Protection, had been working on their long-running investigation dubbed Operation Hidden Idol ahead of Asia Week, confiscating a number of artifacts originating from Asia that authorities concluded were illegal.

The Chasing Aphrodite blog reports the factual allegations of the Wiener case. CHL will offer a thumbnail sketch of the law based on publicly available records published by the New York State Unified Court System.

Wiener faces three felony offenses. They include

1. Criminal Possession of Stolen Property in First Degree - NY PL § 165.54
2. Conspiracy in the Fourth Degree - NY PL § 105.10
3. Conspiracy in the Second Degree - NY PL § 165.52

The most serious charge is criminal possession of stolen property (CPSP) in the first degree. The statute recites that “a person is guilty of criminal possession of stolen property in the first degree when he knowingly possesses stolen property, with intent to benefit himself or a person other than an owner thereof or to impede the recovery by an owner, and when the value of the property exceeds one million dollars.” The offense is punishable by up to 25 years in prison.

Readers of the CHL blog know that state law prosecutions of cultural property dealers have certain advantages. In New York, there is the presumption described in NY PL § 165.55 that “a person in the business of buying, selling or otherwise dealing in property who possesses stolen property is presumed to know that such property was stolen if he obtained it without having ascertained by reasonable inquiry that the person from whom he obtained it had a legal right to possess it.”

Moreover, there is no defense that the person who actually stole the property may not have been identified or convicted; no defense that the charged defendant had no part in the actual theft; and no defense that the theft may have happened outside the boundaries of New York.

Interestingly, the incident date of one or more of the charges against Wiener is December 20, 1999, according to court records. A crime that occurred 17 years ago may present legal and factual challenges to the prosecution.

The case is docketed at 2016NY073118.

Errata 12/23/16: State court records show that Wiener was indicted. CHL now has obtained the prosecution's charging document. It is a complaint, not an indictment, and this blog post has been updated to reflect this current information.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Antiquities Forfeiture Under USA PATRIOT Act Marks Milestone in Cultural Heritage Law

One of four artifacts targeted by federal prosecutors for
forfeiture, featured in a photo found in the possession of ISIS.

Prosecutors last week filed a forfeiture complaint in federal district court to acquire legal title to cultural property accumulated by the terror group ISIS, also known as ISIL. The civil action is the first of its kind, rooted in one of America's most robust anti-terrorism laws.

After the 9/11 attacks on the United States, Congress and President George W. Bush enacted the USA PATRIOT Act (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism). Signed into law on October 26, 2001, Section 806 of the Act created sweeping language in 18 USC § 981(a)(1)(G)(i) to deprive terrorists of a wide range of assets, similar to the Racketeer Influenced and Corrupt Organization Act's (RICO) broad forfeiture provisions found at 18 USC § 1963(a)(2)(D).

The US Attorney’s Office for the District of Columbia triggered the USA PATRIOT Act when it filed its civil forfeiture complaint last Thursday. The Department of Justice (DOJ) said in a press release, "The lawsuit marks the first time that the United States has filed an action to forfeit antiquities that are foreign assets of ISIL."

But of greater significance to cultural property legal watchers is the DOJ's reliance on the PATRIOT Act. The fact that government lawyers tapped the anti-terrorism statute to form the cornerstone of their case showcases the PATRIOT Act as a promising legal tool to combat transnational antiquities trafficking, and the move concretely demonstrates that a fresh legal argument can be forged from facts on the ground showing a link between terrorist activities and antiquities trafficking. This cultural heritage law milestone cannot be overlooked.

The government's complaint is also noteworthy when one considers that most cultural property civil forfeitures filed in federal court are based on 19 USC § 1595a(c)(1)(A), a customs law found in Title 19 of the US Code that allows seizure and forfeiture of stolen and smuggled property brought into the US. The PATRIOT Act 's forfeiture terms, in contrast, are rooted in Title 18, the criminal law portion of the US Code, at section 981. And unlike other kinds of civil forfeitures permitted under 18 USC § 981, which narrowly authorizes the confiscation of property "involved in," "derived from," or "traceable to" a crime, § 981's broader PATRIOT Act authority allows

• forfeiture of "all assets, foreign or domestic" from any "individual, entity, or organization" engaged in terrorism against the United States and

• forfeiture of "all assets, foreign or domestic, affording any person a source of influence over any such entity or organization."

This portion of the PATRIOT Act is formidable because it declares that forfeitable property does not have to be part of the proceeds of terrorism, meaning that the assets do not have to be connected in any way with actual acts of terror. The assets do not even have to be connected with theft, smuggling, or any other crimes. The assets simply have to be property (a) from either a terrorist or terrorist organization or (b) from any person that derives influence over a terrorist group because of the property.

These thresholds certainly are lower than those found in other 18 USC § 981 forfeitures. Yet the US Attorney's Office in its forfeiture complaint targeting ISIS antiquities goes the extra mile to allege a nexus between the cultural property it wants forfeited and ISIS's terror financing.

The government's civil complaint seeks title to four cultural objects, consisting of an ancient Hellenistic/Roman gold ring, two ancient Roman gold coins, and a Neo-Assyrian stone carving. The attorneys assert that the cultural properties "are forfeitable as foreign assets of ISIL and as foreign assets affording a source of influence, as ISIL has and is engaged in planning and perpetrating federal crimes of terrorism . . . ." (Federal crimes of terrorism are defined by 18 USC § 2332b(g)(5), which lists a series of grave offenses ranging from bombing to hostage taking).

The artifacts have not yet been seized by American authorities, and they are not located on US soil. The property may not even be in the hands of ISIS at present. But title transfer would give American officials the ability to assert a valid claim to the objects if they turned up in the marketplace, allowing authorities to take lawful possession.

Although the four artifacts apparently were not located among the approximately 700 cultural objects recovered by US Special Operations Forces during a May 2015 raid on an ISIS compound in eastern Syria, they were depicted in digital photographs found in the possession of Abu Sayyaf, an ISIS terrorist that the Department of Defense has said "was involved in ISIL's military operations and helped direct the terrorist organization's illicit oil, gas, and financial operations . . . ." The forfeiture complaint directly identifies Abu Sayyaf as President of the terror group's Antiquities Department. He died in last year's American military operation. The US, meanwhile, repatriated to Iraq the antiquities seized from him.

Abu Sayyaf's "electronic media had a number of images of antiquities," prosecutors write in their court complaint. "The documentary style, lighting, and focus of the photographs indicate that these images were prepared for marketing in order to sell the photographed items internationally." The attorneys describe how "[m]any of the antiquities seized at the time of the raid appeared to have been in the process of being sold internationally," explaining that "the antiquities were cleaned and maintained in a manner consistent with the preparation for sale." "Through law enforcement’s investigation, additional information was discovered regarding these photographed items. These items, which constitute the 'Defendant Properties,' were identified as being connected to ISIL’s antiquities trade."

The forfeiture complaint describes how "ISIL has controlled much of the territory in Syria and Iraq and extorts antiquities excavators working in ISIL-controlled territory. ... [B]ased on their historical characteristics, the Defendant Properties most likely were excavated from areas under ISIL control." Prosecutor contend that "[o]ther documents on Abu Sayyaf’s hard drive indicate that Abu Sayyaf, on behalf of ISIL, received at least 20% of the proceeds of items excavated in ISIL-controlled areas and in some instances personally sold the archeological items. These transactions were often in U.S. dollars."

More factual details can be found on Jason Felch's blog, Chasing Aphrodite.

Because the photographed property is located in a foreign country, the DOJ filed its forfeiture case in Washington, DC, according to the terms of 28 USC § 1355(b)(2). That statute declares, "Whenever property subject to forfeiture under the laws of the United States is located in a foreign country, or has been detained or seized pursuant to legal process or competent authority of a foreign government, an action or proceeding for forfeiture may be brought . . . in the United States District Court for the District of Columbia."

This expansive extraterritorial jurisdiction gives added firepower to the government's cultural property forfeiture based on the PATRIOT Act. The US Attorneys' Manual points out, "The ability to obtain civil forfeiture orders in the United States for property abroad can result in substantial benefits to international forfeiture efforts, both by facilitating the repatriation of illicit assets to this country for disposition and sharing under U.S. law and by providing a means to assist foreign governments in the confiscation and disposition of assets pursuant to their own laws." The risks, alternatively, are "certain issues of foreign sovereignty and domestic resource allocation and coordination ... raised by the jurisdictional law relating to forfeitable property abroad."

Assigned to this notable forfeiture case is Chief Judge Thomas Hogan. The case is captioned of United States of America v. One Gold Ring with Carved Gemstone, An Asset of ISIL Discovered on Electronic Media of Abu Sayyaf, President of ISIL Antiquities Department et al. (16-cv-02442-TFH)

UPDATE: The court granted the government’s forfeiture request in November 2019.

Photo credit: US Department of Justice

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

UN Anti-Terrorism Resolution Targets Cultural Property Trafficking

A United Nations resolution aimed at cementing police and judicial cooperation in the fight against terrorism unanimously passed the Security Council yesterday.

Resolution 2322's language, in part, focuses on cultural property trafficking. The adopted text states:

"Particularly concerned at the growing involvement of terrorist groups, especially in areas of conflict, in the destruction and the trafficking in cultural property and related offences, and recognizing the indispensable role of international cooperation in crime prevention and criminal justice responses to combat such trafficking and related offences in a comprehensive and effective manner,
...
"Urges States to develop, including, upon request, with the assistance of UNODC [UN Office on Drugs and Crime] and in close cooperation with UNESCO [United Nations Educational, Scientific and Cultural Organization] and INTERPOL, broad law enforcement and judicial cooperation in preventing and combating all forms and aspects of trafficking in cultural property and related offences that benefit or may benefit terrorist or terrorist groups, and to introduce effective national measures at the legislative and operational levels where appropriate, and in accordance with obligations and commitments under international law and national instruments, to prevent and combat trafficking in cultural property and related offences, including considering to designate such activities that may benefit terrorist or terrorist groups, as a serious crime in accordance with article 2 of the UN Convention against Transnational Organized Crime [“Serious crime” shall mean conduct constituting an offence punishable by a maximum deprivation of liberty of at least four years or a more serious penalty]."

Photo credit: marmit/freeimages.com

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

[UPDATED] Bipartisan Cultural Property Immunity Bill Passes the House Again

[UPDATE]: The President signed the bill described below into law on December 16, 2016.

[UPDATE 12/15/16]: HR 6477 passed the Senate by voice vote on December 10. It is now on the president's desk for signature or veto.

The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJICA) (HR 6477) is moving its way through Capitol Hill with broad bipartisan support. The bill passed the House on Thursday without objection. Now it goes to the Senate for consideration.

The legislation aims to reinforce the shield protecting foreign art on temporary loan to American museums from judicial action. International museum loans are a critical part of any solution that reduces looting and smuggling of archaeological artifacts.

The Senate Judiciary Committee passed its own version of the FCEJICA on September 15 (S. 3155). Its chief sponsor is Senator Orrin Hatch (R-UT), and the bill has nine Democratic and five Republican co-sponsors, including Senators Dick Durbin (D-IL), Dianne Feinstein (D-CA), Lindsey Graham (R-SC), Chuck Grassley (R-IA), and Chuck Schumer (D-NY). 

The chief sponsor of the House bill, Congressman Steve Chabot (R-OH-1), said in a statement this week, “This is simple, straightforward legislation. It clarifies the relationship between two conflicting statutes to encourage the foreign lending of art to the United States." "While this legislation makes a relatively minor change to existing law," Chabot noted that "it will, if enacted, provide enormous cultural benefits to the American people."

Prior versions of the FCEJICA have been proposed since 2012, and all have failed to become law. 

The current proposal amends the Foreign Sovereign Immunities Act (FSIA) so that culturally significant artwork imported by American museums for temporary exhibition would not be characterized as "commercial activity." This change is important because current federal law immunizes foreign nations from lawsuits except when they conduct commercial activity.

The judiciary expanded the meaning of "commercial activity" in the 2005 case of Malewicz v. City of Amsterdam when heirs of the artist Kazimir Malevich sued the City of Amsterdam, Netherlands to recover artwork that Amsterdam's Stedelijk Museum loaned to a pair of American museums. The plaintiffs alternatively requested $150 million in damages. The heirs claimed that the Stedelijk Museum obtained the artist's paintings unlawfully. Once they were on loan to US museums for exhibition, the plaintiffs sued in US federal court.

The City of Amsterdam argued that the Immunity from Seizure Act (IFSA)--not to be confused with the FSIA--protected it from suit because IFSA, officially called the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459), shields foreign art from judicial seizure once the State Department grants a US museum's request to immunize the artwork, which happened in this case. But the Malewicz court ruled that the City of Amsterdam engaged in “commercial activity” under the FSIA. So while IFSA may have protected the artwork from being taken by the court to give to the claimants, the FSIA did not immunize the City of Amsterdam from paying money damages to the heirs. The FCEICA seeks to correct this result.

The latest version of the FCEJICA preserves the so-called "Nazi exception," which states in part

Nazi-era claims.--[Jurisdictional immunity] shall not apply in any case ... in which rights in property taken in violation of international law are in issue ... and the action is based upon a claim that such work was taken in connection with the acts of a covered government during the covered period [of January 30, 1933 through May 8, 1945]. 

Both the House and Senate proposals would erase the current conflict between IFSA and the FSIA, encouraging foreign lenders to supply art on temporary loan to US museums without fear of being sued. Foreign lenders need iron-clad notice that their loaned artworks, or that they themselves, will not be subject to expensive court proceedings simply because they agreed to donate objects for temporary display at US museums.

Meanwhile, the State Department should better scrutinize IFSA requests from museums, particularly in cases where looted antiquities or Nazi-era thefts are suspected, because it is not good public policy to mistakenly immunize illegally dug-up archaeology or stolen fine art.

Additional argument in favor of the FCEJICA appear in the April 2012 blog post titled The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S.2212) Should Be Passed.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Feds Publish New US-Egypt Cultural Property Import Rules

Importers have new rules to follow when shipping archaeological material from Egypt, and customs officers have a fresh tool to target contraband antiquities smuggled from Egypt into the United States.

Published by US Customs and Border Protection (CBP) and the Department of Treasury on Tuesday, the newly issued Final Rule details the import restrictions put in place by the terms of an historic US-Egypt cultural heritage agreement signed last week.

The Final Rule designates a list of ancient Egyptian material that is restricted from American import unless there is proper authorization. The list includes artifacts from many periods of Egypt's history (from 5200 BC through 1517 AD), including the Predynastic, Pharaonic, Greco-Roman, Coptic, and Early Islamic through the Mamluk Dynasty. The archaeological artifacts subject to import controls are assembled in roughly fifty categories and encompass objects like

• limestone columns
• Old Kingdom diorite statues and Late Dynastic bronze sculptures
• Early Dynastic greywacke cosmetic palettes
• Coptic tombstones
• mummies and mummy coffins, masks, and wrappings
• canopic jars
• senet games and game pieces
• animal amulets
• stamp and cylinder seals
• musical sistras
• Bible caskets
• silver coins of Alexander the Great struck at Memphis and bronze Roman coins minted in Alexandria
• Islamic tile wall ornaments
• lots of Dynastic pottery and pottery shard
• Coptic Christian wood panels
• Middle Kingdom funerary boats
• New Kingdom chariots and arrows
• enamel mosque lamps
• leather used in shields and undergarments
• papyrus manuscripts
• tomb paintings and rock art
• icons
• Greco-Roman floor mosaics

The designated list adds the comment, "Today cartonnage objects are sometimes dismantled in hopes of extracting inscribed papyrus fragments," a reference to the controversial technique of searching mummy masks for classical and religious texts.

The Final Rule's publication in the Federal Register reveals that Assistant Secretary for Educational and Cultural Affairs Evan Ryan made the four determinations required by the Convention on Cultural Property Implementation Act (CPIA) on November 14, 2014. She concluded that Egypt's cultural patrimony is in jeopardy of pillage of archaeological material, that the Egyptian government has taken preventive measures, that US import controls would be a substantial benefit to deter serious pillage, and that the import restrictions are compatible with the exchange of cultural property for purposes of science, culture, and knowledge.

CBP and Treasury signed the Final Rule on December 1, with an effective date of December 5. Why it took over two years to conclude the underlying bilateral agreement and approve import regulations is unknown. The State Department officially has declined to explain.

What is known is that the Cultural Property Advisory Committee (CPAC) received public comments in May 2014 from heritage preservationists on one side and ancient coin collectors on the other side debating the proposed cultural property Memorandum of Understanding between the US and Egypt. CPAC held a public hearing in June that same year and then met four months later, in October, behind closed doors. Now, in rapid succession, an agreement has been signed and customs regulations put in place.

The customs regulations designate Egyptian archaeological objects by type and includes them in the list of restricted materials that may not be imported into the United States without documentation authorizing their import. 19 U.S.C. § 2606. The Fourth Circuit Court of Appeals, in the case of Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 698 F.3d 171 (2012), describes the process in crisp detail:

Such documentation must show that the article in question was either (1) lawfully exported from its respective state while CPIA restrictions were in effect; (2) exported from its respective state more than ten years before it arrived in the United States; or (3) exported from its respective state before CPIA restrictions went into effect. Id. [19 U.S.C. § 2606], In other words, the importer need not document every movement of its articles since ancient times. It need demonstrate only that the articles left the country that has requested import restrictions before those restrictions went into effect or more than ten years before the date of import.

The Maryland District Court adds, “[F]or objects without documentation of where and when they were discovered, the CPIA expressly places the burden on importers to prove that they are importable, and prohibits the importation of those objects if they cannot meet that burden.” Ancient Coin Collectors v. US Customs and Border, 801 F. Supp. 2d 383 (2011).

Photo credit: Sinisa Mijatov, freeimages.com

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

[VIDEO] After Long Delay, US and Egypt Sign Historic MoU Restricting Endangered Heritage from American Import

The United States and Egypt signed a cultural property Memorandum of Understanding (MoU) on Wednesday after lengthy consideration. The agreement, authorized by the Convention on Cultural Property Implementation Act (CPIA), restricts American imports of designated archaeological objects from Egypt in jeopardy of looting. The bilateral agreement covers ancient objects dating between 5200 BC through 1517 AD.

According to a State Department press release, the MoU will "reduce the incentive for pillage and trafficking."

The agreement took two years and seven months to finalize. Asked why the process took so long compared with other agreements, Nathan Arnold, Director for Media Affairs at the State Department's Bureau of Educational and Cultural Affairs, declined to comment. "It is the State Department’s policy to not comment on our private diplomatic negotiations with countries or internally," Arnold explained. "Achieving agreement on specific language for bilateral agreements involves a process."

Since the tumultuous spring of 2011, Egyptian cultural material has been subject to particular danger. Damage to archaeological sites, houses of worship, and museums was extensive, and cultural heritage objects remained under constant threat of plunder. That prompted urgent calls from the United Nations Educational, Scientific and Cultural Organization (UNESCO), Saving Antiquities for Everyone (SAFE), and other heritage preservation groups to take action. The International Council of Museums quickly published an Egyptian Red List to focus attention on illegal trafficking, and CHL in January 2011 and July 2013 urged adoption of emergency legislation.

Egyptian authorities did not officially ask for American assistance quickly under the terms of the CPIA and the treaty it implements, the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property Convention. Officials reportedly spoke with the White House on March 11, 2014, according to Tom Mashberg at The New York Times, discussing "fast action on [US import] restrictions."

At that time, CHL recommended that import controls be implemented "with all deliberate speed" because "the lack of comprehensive action to stem the looting and smuggling of cultural heritage [since 2011] has afforded heritage traffickers the advantage of a three year head start to move their ill-gotten gains to the United States."

Egyptian authorities formally asked the State Department to enact CPIA import controls in April 2014. The move prompted immediate comments from preservationists, ancient coin collectors, the Association of Art Museum Directors, and other stakeholders. The Cultural Property Advisory Committee (CPAC) held a public hearing in June that same year, and then the matter retreated from public view. Meanwhile, news of heritage destruction continued to pour out from Egypt and the Middle East/North Africa region. Then came last week's sudden public announcement that a bilateral deal would be signed, just seven weeks before the end of President Barack Obama's final term in office.

While the US-Egypt cultural property MoU is an important cultural property protection agreement, it does not cover antiquities imported into the American marketplace prior to its adoption, overlooking imports that already occurred during the recent years of heightened heritage destruction. Customs officials and federal prosecutors conceivably could take action against prior shipments of illicit Egyptian artifacts under other federal laws. Homeland Security Investigations and US Attorneys' offices did just that in Operation Mummy's Curse, which involved the case of United States v. Khouli et al., and resulted in the repatriation of artifacts to Egypt during the MoU signing ceremony this week, including a mummy's hand.

Cultural objects covered by the new MoU's import restrictions may legally pass through America's borders under certain conditions, such as when accompanied by either an export permit or proof showing that the artifacts left Egypt before the adoption of US import regulations. Prohibited cultural material may be detained, seized, and forfeited by customs authorities as contraband, and smugglers could face criminal prosecution, although that rarely occurs.

The US now has bilateral agreements with 16 countries around the world, as well as emergency import restrictions on cultural property originating from Iraq and Syria.

Deborah Lehr of the Antiquities Coalition noted her organization's role in the US/Egypt MoU process, tweeting "proud to have been a partner," and observing that "US and Egypt sign first cultural heritage MOU in Arab region."

Video source: US Department of State

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Coined Phrase Cited in Prolonged ACCG Court Case

The Bard, William Shakespeare

“That which we call a rose by any other name would smell as sweet.”  - William Shakespeare

The Bard's poetic coined phrase features prominently in the prosecution's latest pleading filed in the case of U.S. v. Three Knife-Shaped Coins et al., the Ancient Coin Collectors' Guild's (ACCG) test case that so far has failed to strike down American customs barriers restricting specific types of ancient Chinese and Cypriot coins determined to be in danger of looting.

“The Guild’s arguments ... are the same as those this Court has rejected time and again,” wrote Assistant United States Attorney. “The Guild’s motion for summary judgment and response in opposition to the government’s motion for summary judgment advance the[] same tired arguments once again.”

The US Attorney’s Office for the District of Maryland wants the federal district court to forfeit ancient Chinese and Cypriot coins that customs officers confiscated from the ACCG when the group purposefully transported them to Baltimore in 2009 without proper import documentation. That act began the ACCG's quixotic effort to challenge the import controls preventing the coins' entry. The Guild continues to litigate the case despite having lost every judicial round to date. (Learn more by clicking here.)

Attorney Molissa Farber declared in the government's most recent pleading, “Incredibly, despite numerous substantive filings and three adverse memorandum opinions on this subject, the Guild continues to argue that the government must show that the Defendant Property was ‘first discovered within’ or is ‘subject to the export control of’ Cyprus or China as part of its prima facie case.” “At each turn, the government has opposed these same arguments. And this Court has issued multiple memorandum opinions holding the same thing: that the government is not ‘required to establish that the coins were ‘first discovered within’ and ‘subject to the export control’ of either Cyprus or China.’”

Put another way, and to cite another coined phrase, a rose is a rose is a rose.

Photo credit: Demian Adrox, freeimages.com

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Forming a Cultural Heritage Crimes Prosecution Team to Hold Antiquities Traffickers Accountable

If you can imagine a world where police recover stolen cash, illegal drugs, and hijacked autos but let the bank robbers, narcotics dealers, and carjackers go free, then you can understand the unrestrained business of transnational antiquities trafficking.

It's time for a team of skilled and motivated prosecutors to build solid criminal cases to convict and imprison smugglers, and to send a strong signal that assailing heritage will be met with tough consequences.

Antiquities traffickers are making illegal profits and getting away with crimes like smuggling, receiving stolen property, money laundering, wire fraud, lying on customs forms, and lying to federal agents. While customs officials sometimes seize illegal antiquities—when officers actually find these hard-to-spot imports—traffickers rarely face prosecution. Among the few defendants who have been prosecuted, many have exited the courthouse with minor convictions or light sentences while retaining their cash and criminal networks.

A specialized group of prosecutors should be assembled to hold traffickers accountable. A modest group of four specialized prosecutors should be assigned to form a new Cultural Heritage Crimes (CHC) Section within the Criminal Division at the U.S. Department of Justice (DOJ) in Washington, DC. The CHC Team would be headed by one prosecutor. Another prosecutor in the Asset Forfeiture and Money Laundering Section would be assigned to work with the CHC Section when heritage trafficking cases arise. A third attorney would be assigned to handle cases in the Criminal Division at the U.S. Attorney's Office in Manhattan, at the heart of America's art and antiquities marketplace, while another would pursue forfeitures and repatriations in that office’s Civil Division. All four would be expected to work with each other and with federal, state, county, and local investigators.

Because transnational antiquities trafficking mimics the methods and scope of wildlife trafficking, the objectives and activities of DOJ’s Environmental Crimes Section (ECS) should be mirrored. DOJ explains, “An ECS prosecutor often gets involved early in an investigation, such as when the investigator swears out a search warrant or when a grand jury’s investigative power is needed. Once the necessary evidence is collected, the prosecutor presents the case to the grand jury for indictment. After indictment, the prosecutor guides the case through complex white collar and environmental law issues and prepares it for trial.”

Among the CHC Team's objectives would be to

• Seek criminal convictions and meaningful sentences.
• Press for fair but punitive sentences that deter other would-be smugglers and accomplices.
• Break down criminal infrastructures by dismantling supply, transportation, conservation, distribution, marketing, legal, accounting, and sales networks.
• Cultivate intelligence on the operation of the black market.
• Support federal investigators by reviewing search warrants and coordinating overseas law enforcement resources.
• Partner with state, county, and local authorities.
• Provide investigative and legal training.

Implementing this recommendation would more effectively hold antiquities traffickers accountable. To learn more about this proposal, read the policy brief titled "How to End Impunity for Antiquities Traffickers: Assemble a Cultural Heritage Crimes Prosecution Team" at the new Antiquities Coalition Think Tank.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Register Now! Moot Court Competition Examines the Intersection of Religious Heritage, Cultural Heritage, and Wildlife Protection

The Eighth Annual Cultural Heritage Law Moot Court Competition pits the Religious Freedom Restoration Act (RFRA) against the Bald and Golden Eagle Protection Act (BGEPA) in a case brought by an American Indian.

RFRA statutorily bolsters the First Amendment’s constitutional guarantee of an individual’s free exercise of religion. BGEPA, meanwhile, protects America’s national symbol by prohibiting the taking of bald and golden eagles and eagle parts, including feathers.

Sponsored by the DePaul University College of Law and the Lawyers’ Committee for Cultural Heritage Preservation, the 2017 moot court competition will be held on February 24 and 25, 2017 at the U.S. Court of Appeals in downtown Chicago.

The competition is open to 26 two- and three-member student teams from ABA-accredited or provisionally accredited law schools.

The registration deadline is November 17, 2016, and the problem will be released on November 18, 2016.

Visit the competition website at go.depaul.edu/chmoot for additional details or to register a team, or email chmoot@gmail.com with any questions.

Attorneys interested in serving as judges or brief graders should contact chmootjudges@gmail.com. CLE credit is available for attorneys who participate as judges.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

More on the French President's Cultural Preservation Fund

As François Hollande addressed a crowd gathered at New York’s Metropolitan Museum of Art (The Met) two weeks ago, CHL tweeted about the French president's intention to create a fund to protect cultural heritage. What do we know about this proposed fund?

“We want to create a fund, a global fund to support the safeguarding of cultural heritage with the ambition to raise $100 million,” explained Hollande. “This fund will finance the rescue of works and monuments to ensure the restoration and reconstruction of places of our collective memory and train specialists, archaeologists, curators, historians, so that we may always keep a trace of heritage.”

Vice President Joe Biden (r) introduces
President François Hollande (l) at The Met.

Hollande first announced the creation of a fund in November 2015 when he addressed the general conference of UNESCO. He told the international body, “But we also need to involve private partners to ensure that public resources are not the only ones that can be requested. I propose that there may be a single international structure, clearly identified that can gather donations and funding, and establish an international endowment fund dedicated to endangered cultural property.”

In his recent visit to The Met, President Hollande reflected that the idea for the fund actually originated in Japan this past May when he was with President Barack Obama at the G7 summit. Hollande’s remarks followed an introduction made by Vice President Joe Biden. 

[Sidebar:  When the G7 met, it published an Action Plan on Countering Terrorism and ViolentExtremism, calling on nations “to enhance efforts to hinder looting and trafficking of cultural property originating from regions under the control of terrorist groups.”]

Biden's surprise appearance at The Met generally touted White House efforts to preserve cultural heritage. He described ISIS's sale of artifacts to fund terrorism while it simultaneously attacked cultural diversity in the Middle East, which the vice president called an affront to the people of the region. Biden asserted that trafficking laws targeting antiquities are rigorously enforced.

Hollande’s proposed cultural preservation fund is expected to be a joint project between France and the United Arab Emirates, which is why H.H. Sheikh Abdullah bin Zayed Al Nahyan, UAE Minister of Foreign Affairs, was on hand for Hollande’s pronouncement. The pair are expected to lead a conference on cultural heritage protection at the Louvre Abu Dhabi in December.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

ICC Sentences War Criminal to Prison for Destroying Timbuktu Heritage [VIDEO]

In a landmark decision, today the International Criminal Court (ICC) handed down a nine year prison sentence in the matter of The Prosecutor v. Ahmad Al Faqi Al Mahdi, the first war crimes case specifically focused on the destruction of cultural and religious heritage.

Presiding Judge Raul Pangalangan, a Harvard educated jurist from the Philippines, incarcerated Mahdi for intentionally directing attacks against ten buildings of a historical or religious character in Timbuktu, a designated UNESCO World Heritage Site.

Mahdi is a native of the West African nation of Mali who joined Ansar Dine, an al-Qaeda allied group, in April 2012. On June 30 and July 11, 2012, Mahdi ordered the destruction of nine mausoleums and the Sidi Yahia Mosque. Prosecutors named the defendant as head of the Hisbah, a vice squad established to uphold public morality.

The ICC issued a warrant for Mahdi's arrest in 2015. After prosecutors and the defendant reached a plea deal in February 2016, the ICC received Mahdi's admission of guilt and reviewed the prosecution's evidence at a trial held last month. Mahdi faced a war crimes charge under Article 25 of the Rome Statute.

Video of today's groundbreaking hearing is presented in its entirety, courtesy of the ICC.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.

Protecting Cultural Heritage by Revising the Customs Entry Form

Customs Entry Form 6059B

When people become aware of the rampant looting, smuggling, and destruction of cultural property, they show concern about preserving humanity's shared cultural heritage. And when U.S. Customs and Border Protection (CBP) officers are able to identify specific cultural objects imported into America, they are better positioned to interdict at-risk archaeological, ethnological, religious, and other cultural heritage material at the border.

It is for these reasons that the Customs Entry Form should be revised slightly.

Those who have flown back home from a trip overseas undoubtedly have spotted a flight attendant strolling down the aircraft aisle handing out the ubiquitous blue paper known as Form 6059B, the double-sided document used by travelers to declare goods that they are bringing into the United States.

By checking off the simple “Yes” or “No” boxes found at question #11, travelers easily notify CPB upon their arrival whether they have:

• fruits, vegetables, plants, seeds, food, insects;
• meats, animals, animal/wildlife products;
• disease agents, cell cultures, snails;
• soil or have been on a farm/ranch/pasture.

But, surprisingly, the Entry Form does not include an interrogatory that covers regulated cultural heritage goods. There is no “Yes” or “No” box for travelers to check when carrying an ancient Greek vase, Roman coin, Maya wall art, Byzantine mosaic panel, Tellem textile, Khmer statue, Tyrannosaurus bataar fossil, or the like. That is why a new line under #11 should be added on the Customs Entry Form to say:

I am (We are) bringing...

antiquities/antiques, archaeological material/artifacts, ancient coins, tribal objects, fossils
Yes __  No __

This new Q and A would alert travelers about the existence of regulations that govern imported cultural goods. Such laws include the Convention on Cultural Property Implementation Act; the Pre-Columbian Monumental or Architectural Sculpture or Murals Act; the Protect and Preserve International Cultural Property Act; the National Stolen Property Act; and many more.

A person checking the "Yes" box would prompt CBP officers to inquire further about whether a particular cultural heritage object could be imported legally or whether its entry was subject to restriction. A false "No" response might trigger CBP to contact Homeland Security Investigations to examine if someone was knowingly concealing an illegal import.

In addition to the questions found under #11, the Customs Entry Form currently directs travelers to “[d]eclare all articles on this declaration form and show the value in U.S. dollars.” It cautions them about bringing potentially prohibited objects into America like agricultural and wildlife products, controlled substances, obscene articles, toxic substances, and merchandise that infringes intellectual property rights. "Failure to declare such items ... can result in penalties and the items may be subject to seizure," Form 6059B warns. By adding specific language about legally protected cultural property to this part of the Form, travelers would be alerted further about their duty to declare a variety of protected cultural heritage objects.

Retired customs officer Domenic DiGiovanni, who worked extensively with cultural heritage material when he was with CBP, tweeted that these changes to the Form would be a "great idea" because customs officers would ask follow-up questions in person that "could elicit a behavioral response" from the traveler, which in turn could "lead to more questions."

There is plenty of space remaining on Form 6059B to improve the paperwork, and the small changes would go a long way toward protecting cultural heritage.

Text and original photos copyrighted by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of any blog post without the express written consent of CHL is prohibited. CHL is a service of Red Arch Cultural Heritage Law & Policy Research, Inc.