Can Canines Sniff Out Smuggled Artifacts? Working Dogs Join Fight to Save Cultural Heritage

Red Arch Cultural Heritage Law & Policy Research and the University of Pennsylvania’s Penn Vet Working Dog Center, in collaboration with the Penn Museum (University of Pennsylvania Museum of Archaeology and Anthropology), have launched the K-9 Artifact Finders research program. The project aims to fight cultural heritage crime with the help of working dogs.

“We must stop the crime of transnational antiquities trafficking,” says CHL's Rick St. Hilaire, founder and executive director of Red Arch Research. “And dogs may be the right law enforcement partner to get the job done,” adds Dr. Lou Ferland, retired police chief and head of The United States Police Canine Association, who serves as an advisor to the K-9 Artifact Finders project.

Supreme Court Hears Rubin v. Iran. Feds Say Taking Cultural Property A "Big Deal." Petitioners Want Justice, Arguing "It's Not About Antiquities."

Can American victims of terrorism seize and sell ancient Persian antiquities located at the University of Chicago to satisfy a court judgment against Iran? That's the question the United States Supreme Court considered on Monday in the case of Rubin v. Islamic Republic of Iran, a case examining the mechanics of the Foreign Sovereign Immunities Act (FSIA).

Foreign countries generally are immune from lawsuits filed in American courts. But the FSIA outlines exceptions to this rule, including a terrorism exception codified at 28 U.S. Code § 1605A. Congress penned this section in 2008 to allow plaintiffs to sue designated state sponsors of terror that caused injury, harm, or death.

Government Watchdog Says Goals Lacking for Key Cultural Heritage Committee; State Department Pledges to Fix Problem

"[W]e found that there was no consensus and no clear delineation of the specific roles and responsibilities of the entities on the CHCC and its working groups." - GAO


The Cultural Heritage Coordinating Committee (CHCC) is "the principal body for coordination and implementation of cultural heritage protection and preservation initiatives across the U.S. government." That's how the U.S. State Department characterized the CHCC at a G-7 cultural ministers summit in March. Yet Congress' independent watchdog, the General Accountability Office (GAO), finds that the CHCC lacks goals and has failed to clarify participants' roles.

The CHCC is the federal interagency committee set up last year when Congress authorized import restrictions on at-risk cultural property from war-torn Syria. Signed into law by the president in May 2016, the bipartisan backed Protect and Preserve International Cultural Property Act suggested the creation of a cultural property coordinating committee, which lawmakers found to be an acceptable alternative after Congress failed to create a cultural property czar.

State Attorneys General Should Address the Scam of Illegal Antiquities in the Marketplace

State attorneys general should address the ballooning scam of criminals using the art and antiquities marketplace to sell faked, forged, looted, stolen, and smuggled cultural property. This hijacking of the trade presents a widespread consumer protection problem that demands a concerted law enforcement response.

War, Antiquities, and Responses: Colgate University Conference on Preserving Cultural Heritage in Times of Conflict

Monuments Men author Robert Edsel speaking at Colgate University.

From the looters shovel to the auction gavel, large scale cultural property theft and destruction occur during times of instability. That is how Dr. Michael Danti framed the discussion for last week's conference titled Preserving Cultural Heritage in Times of Conflict, sponsored by Colgate University and the Penn Museum–Near Eastern Section.

Danti is a classics professor at Colgate, a consulting scholar with the University of Pennsylvania Museum, and an archaeologist with expertise in the destruction of cultural heritage in Iraq and Syria. He described the current wave of cultural property crime from conflict zones as "voracious."

US Announces Intent to Withdraw from UNESCO

The United States will withdraw from the United Nations Educational Scientific and Cultural Organization, (UNESCO), effective December 31, 2018.

Today's announcement comes as no surprise to cultural property watchers. The US Mission to the United Nations said in July that "[t]he United States is currently evaluating the appropriate level of its continued engagement at UNESCO," prompted by the UN cultural agency's decision "to designate the Old City of Hebron and the Tomb of the Patriarchs as part of Palestinian territory and a World Heritage site despite protests by the United States, Israel, and other countries," according to the US Mission.

Nikki Haley, America's ambassador to the UN, remarked this past summer that UNESCO's vote was "tragic." "It undermines the trust that is needed for the Israeli-Palestinian peace process to be successful. And it further discredits an already highly questionable UN agency," she said.

The longstanding tension between the US and UNESCO is described in CHL's 2013 blog post, No Money, No Vote: A Closer Look at the Strained Relationship Between the U.S. and UNESCO. The events it chronicles set the stage for today's notification by the US State Department to UNESCO Director-General Irina Bokova of its intent to set up an American permanent observer mission after officially withdrawing from the UN agency next year.

Penn Vet Working Dog Center Celebrates Five Years of Success

Sunny, a Labrador retriever in training,
with his Penn Vet handler during
a luggage search demonstration

Today marks the fifth anniversary of the Penn Vet Working Dog Center. At a special celebration held this weekend on the campus of the University of Pennsylvania, Penn Vet showcased its dogs to an enthusiastic crowd of guests.

Penn Vet’s successful research is a tribute to the energy and vision of Executive Director Dr. Cynthia Otto and her dedicated team of professionals and volunteers. Their important work has mitigated threats to the homeland and saved lives with the help of trained canines like “Hoke,” “Rookie,” “Zoe,” and “Thunder,” dogs carefully taught to sniff out fire accelerants, explosives, narcotics, and disaster victims.

Red Arch Cultural Heritage Law & Policy Research soon hopes to join Penn Vet to discover whether working dogs can spot antiquities traffickers by intercepting smuggled cultural artifacts at ports of entry.

Learn more about the K-9 Artifact Finders program at www.redarchresearch.org..

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.

Museum Loss Prevention: Apply Rigorous Due Diligence

What due diligence can museums undertake to protect their collections of artifacts from risks of legal seizure?

Museums routinely and successfully protect their archaeological collections from threats of loss posed by theft, fire, natural disaster, and infrastructure failure. But do they effectively shield these collections from legal confiscation?

Watch CPAC Live on July 19, 2017 at 1PM EDT

The Roman Libyan site of Leptis Magna.

The Cultural Property Advisory Committee (CPAC) meets today to consider a request to erect American import protections on endangered cultural property from Libya.

The meeting will take place today at 1 p.m.  EDT. Viewers can watch live by clicking here.

The May 30 request asks the United States to impose import restrictions on archaeological and ethnological objects objects dating from prehistoric, Greek, Roman, Islamic, and Ottoman times.

Hobby Lobby Forfeiture: $3 Million is Not a Fine. So What Is It?

The case of United States v. Approximately Four Hundred Fifty (450) Ancient Cuneiform Tablets and Approximately Three Thousand (3,000) Ancient Clay Bullae--the Hobby Lobby cultural artifacts case--involves two parts:

(1) the court forfeiture of 3,450 cuneiform tablets and clay bullae illegally imported into the United States, and specifically named in the caption of the civil case, and

(2) the administrative forfeiture of $3 million in proceeds along with 144 unlawfully imported cylinder seals, which is outlined in the companion settlement agreement filed with the federal district court in Brooklyn, New York.

So how did prosecutors arrive at this $3 million figure?

Cultural Property Forfeiture: Hobby Lobby Could Pay $2000/Day if U.S. Attorney's Agreement Violated

Cuneiform tablet subject to forfeiture.

After a six and a half year probe by federal authority into ancient cultural property imports acquired by Hobby Lobby, the U.S. Attorney's Office in Brooklyn yesterday filed a forfeiture complaint as part of a settlement agreement with the arts and crafts company.

The agreement, filed today in federal district court, confiscates Hobby Lobby's antiquities purchases, compels the Oklahoma-based corporation to forfeit cash proceeds related to the unlawful imports, and mandates the company's personnel to follow ethical collecting guidelines. Failure to comply with the settlement terms could cost Hobby Lobby $2,000 per day.

[VIDEO] Yes, Art and Antiquities Sellers Should Be Subject to Anti-Money Laundering/Counter-Terrorist Financing Laws

Last week the House Subcommittee on Terrorism and Illicit Finance held a hearing titled, “The Exploitation of Cultural Property: Examining Illicit Activity in the Antiquities and Art Trade.” View the video below.

In light of the subcommittee's  important discussion, Congress should revisit the question: Shouldn't Art and Antiquities Sellers Be Subject to Anti-Money Laundering/Counter-Terrorist Financing Laws? The answer, of course, is yes.

Testifying at the June 23, 2017 hearing were

• Dr. Brian Daniels, Research Associate at the Smithsonian Institution and Director of Research and Programs at Penn Cultural Heritage Center.
• Alyson Grunder, Deputy Assistant Secretary for Policy, Bureau of Educational and Cultural Affairs, U.S. Department of State.
• Raymond Villanueva, Assistant Director for International Operations, U.S. Immigration and Customs Enforcement, Homeland Security Investigations.

Forward the video to 11:03, which marks the start of the hearing.

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.

Cultural Heritage MoU with Peru Extended

The United States government last week extended import restrictions safeguarding ancient archaeological and ethnological materials originating from Peru. The restrictions, which took effect June 9, last for five years and cover cultural heritage objects “in jeopardy from pillage.”


The archaeological site of Moray, an Inca ruin located in Peru.

Particular cultural artifacts dating from 12,000 B.C. through 1532 A.D. are covered under the new federal rules. The designated list encompasses Pre-Columbian textiles such as Chimu´ feather cloth panels, Nazca sashes, and Inca slings; Pre-Columbian metal objects like necklaces and penachos, metal feathers made of gold, silver, or copper used to decorate crowns; Pre-Columbian lithics such as stone bowls and cups; Pre-Columbian human remains like mummies; ethnological objects like Catholic liturgical items such as chalices and crucifixes; and Colonial manuscripts and documents like wills and books—a new category appearing on the designated list. The entire designated list can be found here.

Import controls protecting Peruvian heritage objects, enacted under authority of the Convention on Cultural Property Implementation Act (CPIA),  have remained in place for 27 years. The CPIA is the federal law that implements the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.

The U.S. first promulgated emergency import restrictions on May 7, 1990 to conserve at-risk archaeological material from Peru’s Sipan Archaeological Region. Later, in 1997, the U.S. and Peru entered a Memorandum of Understanding (MoU) that set up import restrictions on objects from Pre-Hispanic cultures and on ethnological items from the Colonial period. The U.S. extended this bilateral agreement with Peru in 2002, 2007, and 2012.

Now that the MoU has been renewed for another five years, cultural property lawyers and importers must take note, keeping in mind the 1972 law that is still applicable to Peruvian artifacts, the Importation of Pre-Columbian Monumental or Architectural Sculpture or Murals Act.

Photo credit: getye1/freeimages.com

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.

National Preservation Law Conference

Attorneys and other interested professionals should consider attending the National Preservation Law Conference in Washington, DC on June 13 for a focused look at preservation law, including the most recent debates and developments.

Recognized legal experts will speak about topics that include preservation at the federal level, preserving America’s cities, and protecting international cultural heritage.

The program is sponsored by the National Trust for Historic Preservation in partnership with my alma mater, Georgetown University Law Center. Here are the details.

Tuesday, June 13, 2017

8:00 a.m.-5:00 p.m.

Lunch included and cocktail reception to follow program.

Georgetown University Law Center

600 New Jersey Avenue NW

Washington, D.C.

Register here. Online registration closes June 9. Continuing Legal Education (CLE) credits will be available.

Questions? Email plt@savingplaces.org.

Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.

Exploring a New Way to Find Smuggled Artifacts: K-9 Artifact Finders

Imagine a new way to catch antiquities traffickers using specially trained working dogs.

CHL suggested the idea in a blog post last year. Now Red Arch is on its way toward making that idea into a reality.

The K-9 Artifact Finders program is spearheaded by Red Arch Cultural Heritage Law & Policy Research, a 501(c)(3) nonprofit whose purpose is to apply first-class research and professional judgment to cultural heritage law and policy problems.

The research project's goal is to explore how dogs can be trained to find cultural artifacts smuggled in shipping containers, cargo crates, mailed packages, luggage, and more.

Red Arch Research will partner with the Penn Vet Working Dog Center and the Penn Museum, relying on their years of experience and know-how.

To get the project going, Red Arch has launched a GoFundMe page, enlisting support for this important and innovative research.

Finding common target scents linked to looted antiquities--which working dogs would be able to sniff out--would help build a new tool for customs officers that could be deployed to nab cultural heritage traffickers at airports, cargo facilities, and other ports of entry.

The need for detector dogs to combat antiquities trafficking is more urgent than ever. The U.N. Security Council unanimously passed Resolution 2347 in March, supported by the United States, explaining how terrorist groups are generating income from "the looting and smuggling of cultural property from archaeological sites, museums, libraries, archives, and other sites," and that these crimes against culture are "being used to support their recruitment efforts and to strengthen their operational capability to organize and carry out terrorist attacks ….”

The K-9 Artifact Finders project can help combat this top-priority problem.

The K-9 Artifact Finders project grew out of Red Arch's investigation into imports into the United States of cultural objects from the Middle East and North Africa. Published by CHL and presented at the Culture Under Threat conference in Cairo, the research sparked troubling questions.

Why did the declared value of U.S. imports of "antiques" from Syria climb 133% between 2012 and 2013 during a time of war?

Why did the declared value of U.S. imports of "antiques" from Iraq skyrocket 1302% between 2009 and 2013, from $322,564 to $4,523,126, during a period of violent unrest?

Were these "antiques" actually looted and smuggled archaeological artifacts?

Red Arch wanted answers, but it was clear that customs officers needed to spot smuggled archaeological objects better. So the nonprofit research center asked whether working dogs could be trained to find smuggled artifacts, and the K-9 Artifact Finders program was developed in order to find the answer.

The kind of canine training that will be undertaken is mostly unprecedented. To prevent potential cross contamination of odors, the primary study, designed by Penn Vet, will focus on the Fertile Crescent region in modern-day Iraq. This area is historically rich, making it a prime target for cultural heritage looters.

Phase I of the project will have four dogs recruited from the Penn Vet Working Dog Center's training program. Naturally, the dogs will be treated humanely and with care. There will be initial scent imprinting of up to three types of freshly excavated artifacts—lawfully excavated, properly documented, and legally imported with the help of archaeologists, including from the Penn Museum.

Once imprinted, the dogs will learn odor discrimination. The tests will be double-blind, meaning that the researcher, data collector, and trainer will not know the treatment of each specific sample presented to the dog.

If the results prove successful, we will know that working dogs can partner with authorities to help stop antiquities smuggling. That would mark a big step forward in the fight against cultural heritage trafficking.

Learn more at www.redarchresearch.org.

Those who helped design the K-9 Artifact Finders program include the Board of Directors of Red Arch and the following experts:

Dr. Michael Danti, Principal Investigator and Academic Director of ASOR Cultural Heritage Initiatives and a Penn Museum Consulting Scholar.

Domenic DiGiovanni, Customs and Border Protection Officer (Ret.) at U.S. Department of Homeland Security.

Dr. David "Lou" Ferland, Executive Director of The United States Police Canine Association and retired police chief.

Peter Herdrich, Chief Executive Officer at Cultural Capital Group, LLC.

Dr. Cynthia M. Otto, Executive Director of the Penn Vet Working Dog Center.
Text and original photos copyrighted 2010-2017 by Cultural Heritage Lawyer, a blog commenting on matters of cultural property law, art law, cultural heritage policy, antiquities trafficking, museum risk management, and archaeology. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission without the express written consent of CHL is strictly prohibited.

National Antiquities Take-Back Day

Today is National Prescription Drug Take-Back Day. Each year the Drug Enforcement Administration coordinates with federal, state, county, and local police and police to collect millions of pounds of unused medications stored in household medicine cabinets, reducing the availability of addictive drugs.

Police departments and prosecutors' offices collect the drugs from individuals without asking questions, removing the fear of any potential law enforcement consequence.

In the same way, a National Antiquities Take-Back Day would allow collectors and their family members to return ancient statues, pots, coins, and other archaeological objects known to have been acquired illicitly or believed to have suspicious histories.

Such an event could be sponsored by Homeland Security's Cultural Property, Art, and Antiquities Program and the FBI Art Crime Team, who would supervise collecting the objects without no questions asked and who would repatriate the artifacts to their lawful owners.

Photo credit: pipp/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.

Federal Court Leaves CPIA Coin Import Regs Untouched

The District Court of Maryland once again has refused the Ancient Coin Collectors Guild's (ACCG) invitation to strike down or weaken import restrictions that protect endangered ancient coins. The court instead ordered the forfeiture of 15 ancient coins seized from the ACCG. But in a partial victory for the Guild, the court directed authorities to turn over seven coins to the advocacy group.

A sample of the seven Cypriot coins, three knife-shaped Chinese coins, and dozen other
disc-shaped Chinese coins in the Baltimore test case. On the top row (l-r)
are Chinese coins #1 (c.400 BC), #2 (c.300 BC), #3 (C.300 BC), #12, and #13.
The bottom row (l-r) displays coins #16, #17 and the envelope labeled Cyprus
Ptolemaeus Head of Zeus, and coin #19. The Maryland District Court says
that attorneys for the ACCG and the government "acknowledge an unexplained
discrepancy between the number of coins listed in the dealer’s invoice, 23,
and the number currently in CBP’s possession, 22."

The federal court's March 31 decision in the case of U.S. v. Three Knife-Shaped Coins et al. is the latest outcome in the ACCG's eight-year long legal struggle to attack American import restrictions placed on ancient coins in danger of cultural heritage looting and trafficking.

The Guild's test case began in April 2009 when it shipped 23 ancient Cypriot and Chinese coins to Baltimore. Spink, a dealer in London, supplied the coins, and the Guild had the archaeological material flown aboard a British Airways passenger flight to the United States. “According to the Spink invoice, each coin was minted in Cyprus or China, had '[n]o recorded provenance,' and had a '[f]ind spot' that was 'unknown,'" noted the district court.

Customs officers detained the artifacts because their entry violated CPIA import regulations authorized by the bilateral agreements (also called Memoranda of Understanding) in force between the United States and the nations of Cyprus and China.

U.S. Customs and Border Protection (CBP) and the Department of the Treasury classified certain "Coins of Cypriot Types" as protected cultural property subject to Convention on Cultural Property Implementation Act (CPIA) import controls on July 13, 2007, concluding that the "[c]oins constitute an inseparable part of the archaeological record of the island, and, like other archaeological objects, they are vulnerable to pillage and illicit export."

Meanwhile, on January 16, 2009, authorities designated certain bronze Chinese coins--among other bronze archaeological material such as vessels, sculpture, musical instruments, and weapons--as subject to CPIA import restrictions after the Department of State concluded on May 13, 2008 that "[t]the cultural patrimony of China is in jeopardy from the pillage of irreplaceable archaeological materials representing China's cultural heritage from the Paleolithic Period (c. 75,000 B.C.) through the end of the Tang Period (A.D. 907) ... (19 U.S.C. 2602(a)(1)(A))."

Following Customs' detention of the ACCG's shipment, the Guild announced on its web site that it "now plans to use this detention as a vehicle to strike down the unprecedented regulations banning importation of whole classes of ancient coins."

The ACCG first sought a declaratory judgment when the government delayed starting legal proceedings, which gave birth to Ancient Coin Collectors Guild v. U.S. Customs and Border Protection; U.S. Department of State; Assistant Secretary of State, Educational and Cultural Affairs, a case that ultimately sided with the government and ruled against the ACCG.

Both the District Court of Maryland and the Fourth Circuit Court of Appeals in that case rejected the ACCG's claims (1) that import restrictions on Cypriot and Chinese ancient coins were the product of ultra vires (extralegal) acts, (2) that the government violated the Administrative Procedures Act (APA), or that (3) the government transgressed the First and Fifth Amendments of the U.S. Constitution. The courts found that federal agencies did not need to demonstrate, as the ACCG contended, that all coins of the types listed for restricted import were 'first discovered within'' their countries of origin. The case concluded after four years with the U.S. Supreme Court declining to hear the matter.

Federal prosecutors then sought title to the seized ancient coins. The U.S. Attorneys Office for the District of Maryland in April 2013 filed the civil forfeiture case of U.S. v. Three Knife-Shaped Coins et al. pursuant to 19 U.S.C. § 2609 of the CPIA, contending that the ACCG imported archaeological material designated in CBP Regulation 19 C.F.R. § 12.104g in violation of 19 U.S.C. § 2606 and 19 C.F.R. § 12.104a(b) and that that the Guild failed to produce any documentation to CBP that demonstrated the legitimacy of the import as demanded by 19 U.S.C. § 2606(b). The ACCG soon filed as a claimant.

The ACCG continued to challenge to validity of CPIA import controls throughout the forfeiture case, causing the district court, in June 2014, to repeat that there could be no "further challenge to the validity of the regulations.”

A little over two weeks ago, District Judge Catherine Blake ruled on the ACCG’s motion for summary judgment and the government’s cross-motion for summary judgment, reinforcing the legality of CPIA restrictions on specifically identified types of ancient coins. Citing the words of the Fourth Circuit Court of Appeals, Judge Blake wrote:

The appellate court addressed the ACCG's ... complaint "that [the Department of] State and CBP acted ultra vires by placing import restrictions on all coins of certain types without demonstrating that all coins of those types were 'first discovered within' China or Cyprus." The [Circuit] court disagreed by explaining that "State and CBP are under no obligation to list restricted items with more specificity than the statute commands, and they are certainly not required to impose restrictions on a coin-by-coin basis. Such a requirement would make the statutory scheme utterly unworkable in practice

Judge Blake rejected the ACCG’s persistent “first discovered within" argument, pointedly expressing that the argument “misses the mark."

The "first discovered" argument imagines that federal attorneys, as part of their prima facie case to forfeit regulated imports, must show that ancient coins were “first discovered within” or were “subject to the export control of" a State Party to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. Put another way, the ACCG's argument posits that authorities may not seek to forfeit archaeological imports unless they first establish (1) that they are the type of cultural artifacts appearing on the designated lists of archaeological materials that are subject to import restrictions under the CPIA, which implements the 1970 UNESCO Convention in the United States; (2) that the artifacts were first discovered within and subject to the export control of the State Party to the 1970 UNESCO Convention; and (3) that the artifacts were removed unlawfully from the State Party only after the U.S. put the CPIA import restrictions in place.

If successful, the "first discovered" argument would have raised the legal bar for federal authorities to detain and forfeit unlawfully imported cultural property. That is because it is almost impossible to demonstrate the location where a looter first clandestinely dug up an ancient coin. The ACCG has argued instead that an ancient coin's find spot is difficult to determine because ancient coins circulated from one region to another, which is a claim that has been challenged.

Regardless of the merits of either argument, the Maryland district court rejected the ACCG's legal theory on statutory grounds, explaining in depth:

The Guild’s argument appears to conflate two terms defined in the CPIA: “archaeological . . . material of the State Party” ... and “designated archaeological . . . material” .... “Archaeological material of the State Party” is “any object of archaeological interest . . . which was first discovered within, and is subject to export control by, the State Party.” 19 U.S.C. § 2601(2). “Designated archaeological material” is “any archaeological . . . material of the State Party” which is “covered by an agreement under this chapter” and “listed by regulation under section 2604.” Id. § 2601(7). Only “designated” material is subject to import restrictions under § 2606 [of the CPIA] and potentially “subject to seizure and forfeiture” under § 2609 [of the CPIA]. Id. §§ 2606(a), 2609(a). 

The Guild’s source for the “first discovered within” and “subject to export control by” requirements is the reference to “archaeological material of the State Party” in § 2604 [of the CPIA], which provides that “the [US] Secretary [of the Treasury] . . . shall by regulation promulgate (and when appropriate shall revise) a list of the archaeological or ethnological material of the State Party covered by the agreement.” Id. § 2604. Rather than supporting the Guild’s arguments, however, this provision illustrates the distinction between “archaeological material of the State Party” and “designated archaeological material.” “Archaeological material of the State Party” includes all material that may be restricted by [US Customs and Border Protection] pursuant to an applicable agreement, whereas “designated archaeological material” is the subset that has been restricted through the process of creating or amending a designated list. See id. §§ 2601, 2604. By asserting that the government must prove in every forfeiture action that “designated archaeological material” does, in fact, constitute “archaeological material of the State Party,” the Guild seeks to impose a burden on the government that the CPIA does not: the requirement to prove, as part of its initial showing, that the decisions incorporated into its underlying regulations are sound. … Further, nothing in the statute or legislative history supports the Guild’s proposal to substitute one defined term, “archaeological material of the State Party,” for another, “designated archaeological material,” in §§ 2606 and 2609. The court declines the Guild’s invitation to rewrite the statute in this way.

Besides seeking to dismantle the CPIA's cultural property protections over ancient coins, the ACCG also pursued the more practical goal of reclaiming its imported Cypriot and Chinese coins from federal custody. Both sides scored a victory on this issue.

It was the government's burden to show "that the [detained] property has been 'listed in accordance with section 2604'" of the CPIA. "If so, 'the burden of proof . . . shifts to [the Guild] to establish, by a preponderance of the evidence, that the property is not subject to forfeiture, or to establish an applicable affirmative defense.'" Applying this analysis, Judge Blake assigned title of all the Cypriot coins and some of the Chinese coins to the United States, and gave the Guild seven Chinese coins. 

Judge Blake explained the law of the case this way. Once the government establishes its burden to prove that detained coins are among the types listed on the CPIA's § 2604 designated list, then the claimant bears the burden to show that the coins are importable. The burden "'shifts to [the claimant] to establish, by a preponderance of the evidence, that the property is not subject to forfeiture, or to establish an applicable affirmative defense.' (Quoting U.S. v. Eighteenth Century Peruvian Oil, 597 F. Supp. 2d 618, 623 (E.D. Va. 2009))," meaning that the ACCG had to produce documentation that the coins were, as the earlier Fourth Circuit opinion declared, "(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." The Guild failed to produce any documentation.

To satisfy its burden, the Guild wanted the court to accept expert witness testimony instead. While the court acknowledged that there was "the possibility … that the Guild could rely on expert testimony to prove that ‘these specific coins were exported from their respective States before CPIA restrictions went into effect," the ACCG failed to supply sufficient information about the specific Cypriot or Chinese coins at issue in the case.

The Guild's legal counsel, Attorney Peter Tompa, told the Maryland court in a letter dated May 27, 2009 that "[t]he Guild has admitted that it cannot provide the documentation ..." for any of the coins (labeled for clarity's sake in sequential numbers from 1 through 22). So the ACCG supplied alternative evidence in the form of expert testimony from Douglas Mudd, a numismatic expert and curator of the American Numismatic Association museum, and from Michael McCullough, a noted art and cultural property attorney based in New York.

The district court commented that 'the Guild offers Mudd’s testimony to prove, by a preponderance of the evidence, that the coins were “exported from [their] respective state before CPIA restrictions went into effect.' It offers McCullough’s testimony to prove, as a matter of law, that the Cypriot coins were 'lawfully exported from [their] respective state while CPIA restrictions were in effect,' and to raise an issue of material fact as to whether the Chinese coins were 'lawfully exported from [their] respective state while CPIA restrictions were in effect.'"

Federal prosecutors objected to the consideration of the ACCG's experts, pointing out that CPIA § 2606 does not authorize the evaluation of scholarly evidence, only permitting proof by way of "a certification or other documentation which certifies that such exportation was not in violation of the laws of the State Party." The ACCG countered that the broader federal customs statute, of which the CPIA is only a single chapter, in fact did allow for the use of learned evidence in forfeiture cases, citing 19 U.S.C. § 1615.

The court declined to resolve the dispute, leaving the evidentiary question open, because Judge Blake concluded that it did not matter. "If claimants in CPIA forfeiture actions are limited to the forms of documentation specified in § 2606, the Guild—which has conceded that it cannot provide such documentation—has failed to satisfy its burden to rebut the government’s prima facie case," wrote the judge. "If, on the other hand, § 1615 permits courts to consider scholarly evidence, the court still must look to the substantive law to determine whether the proffered expert testimony establishes the Guild’s entitlement to summary judgment or raises a disputed issue of material fact. Neither the Mudd nor McCullough testimony supports the Guild’s claims."

The court added that “even if 19 U.S.C. § 1615 provides the applicable evidentiary standard and authorizes the Guild to rely on scholarly evidence, that scholarly evidence must be particularized to the coins at issue... .The Mudd testimony and McCullough testimony regarding the Chinese coins are insufficiently particularized, and the McCullough testimony regarding both the Cypriot and Chinese coins fails as a matter of law. The Guild has provided no other evidence or argument that “establish[es], by a preponderance of the evidence, that the property is not subject to forfeiture, or . . . establish[es] an applicable affirmative defense.” See Peruvian Oil, 597 F. Supp. 2d at 623. Accordingly, the government is entitled to summary judgment as to coins 1-6, 12-13, and 16-22. See id.”

Still, the district court did suggest that an expert could have been used by the government to satisfy its burden that the Chinese coins ultimately returned to the ACCG were the kinds subject to CPIA import restrictions.

When the court reviewed whether the imported coins properly fell under the § 2604 CPIA restrictions lists, it found that government lawyers relied on an invoice from Spink, descriptions and photos of the coins that the litigants produced, and admissions made by the ACCG. And so, Judge Blake declared, “[r]egarding coins 1-6, 12-13, and 16-22, the court finds that the government has satisfied its initial burden to show that the coins are of restricted types. Indeed, the Guild admitted in response to the government’s request for admissions that coins 1-6 and 12-13 are of types that appear on the designated list for coins from China and that coins 16-22 are of types that appear on the designated list for coins of Cypriot type.”

But Judge Blake pointedly observed that the ACCG “did not concede ... that ... coins [numbered 7-11 and 14-15] are of types that appear on the designated list for China. Rather, it stated that it was 'unable to admit or deny whether [the coins] are of types that appear on the Chinese designated list' because it 'ha[d] no working knowledge of the Chinese language' [according to representations made by Attorney Tompa]. The court agrees that the relevant documents, including the Spink invoice, are insufficient to establish that coins 7-11 and 14-15 are of types that appear on the Chinese designated list."

Judge Blake concluded that "[b]ecause the government has not produced a Chinese language expert or provided any other evidence showing that the coins are of restricted types, the court finds that the government has failed to satisfy its initial burden regarding coins 7-11 and 14-15." As a result, the ACCG notched its first win in its test case.

The district court criticized federal attorneys for trying to place the government's initial burden on the ACCG, emphasizing that the “initial burden lies with the government to show that the coins have been 'listed . . . in accordance with section 2604,' not with the claimant to prove that they have not. 19 U.S.C. § 2610. As the government has provided no evidence to establish that the coins are of types that appear on the designated list, there was no 'initial showing' for the Guild to rebut.”

The court, meanwhile, struck down the ACCG's Fifth Amendment due process claims, which alleged that the judiciary changed the burden of proof standard set by lawmakers and that CPIA import regulations did not give adequate fair notice of what was prohibited:

First, as explained above, the burden-shifting framework in CPIA forfeiture actions is governed by a combination of generally applicable laws and provisions of the CPIA. Reading 19 U.S.C. § 1615 and 19 U.S.C. § 2610 together, Congress placed the initial burden on the government and the burden of rebuttal on the claimant. In forfeiture actions involving material subject to § 2606, the government must establish “that the material has been listed . . . in accordance with section 2604.” 19 U.S.C. § 2610. The burden then transfers to the claimant to rebut the government’s prima facie case. Peruvian Oil, 597 F. Supp. 2d at 622-23 (citing 19 U.S.C. § 1615). Because this analysis gives effect to, rather than altering, the burden-shifting framework created by Congress, the Guild has not raised a valid due process claim. 

Second, the Guild argues that the regulations fail to provide it with “fair notice” of what is prohibited. In a CPIA forfeiture action, the relevant regulations are the designated lists. See 19 U.S.C. §§ 2606, 2609. The Fourth Circuit previously concluded that the designated lists satisfy 19 U.S.C. § 2604’s “fair notice” requirement, holding that “CBP has listed the Chinese and Cypriot coins by type, in accordance with 19 U.S.C. § 2604.” Ancient Coin Collectors Guild, 698 F.3d at 183; see 19 U.S.C. § 2604 (requiring that the designated lists “be sufficiently specific and precise to insure that . . . fair notice is given to importers and other persons as to what material is subject to such restrictions”). The Guild does not appear to argue that the alleged due process violations arise from a lack of specificity or precision in the designated lists. Rather, the Guild grounds its “fair notice” claim in the premise that 19 C.F.R. § 12.104 conflicts with the “first discovered within” and “subject to export control by” requirements of the CPIA. As discussed above, however, the provisions of the CPIA that govern this action—including §§ 2606, 2609, and 2610—relate to whether a given type of material has been added to a designated list, not whether it should have been. Thus, for purposes of this forfeiture action, it does not appear that a conflict involving the “first discovered within” and “subject to export control by” requirements would deprive the Guild of fair notice, so long as the designated lists included sufficiently specific and precise descriptions of the types of items subject to forfeiture. Further, to the extent that the Guild seeks to relitigate its challenge to the validity of the regulations in the form of a due process claim, that argument is inappropriate here.

The court's Memorandum Opinion may be accessed here.

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.

Drusus Head Revisited

Steve Litt reports that the Cleveland Museum of Art is returning a marble head depicting Drusus Minor to Italy because the object was stolen in 1944.

When the Cleveland Museum acquired the ancient piece in 2012, several commentators raised questions about its provenance. Among them were David Gill.

CHL conducted its own research and published a post in August 2012 titled, "Unable to Obtain Documentary Confirmation" - Due Diligence and Questions Posed by the Collecting History of The Cleveland Museum of Art's Drusus Minor Head." The post is worth revisiting in light of this week's repatriation announcement.

Photo source: Cleveland Museum of Art

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.

US Supports UN Security Council Resolution Condemning Heritage Destruction by Terror Groups

The United Nations Security Council unanimously passed Resolution 2347 yesterday. The resolution "Deplores and condemns the unlawful destruction of cultural heritage ... as well as the looting and smuggling of cultural property from archaeological sites, museums, libraries, archives, and other sites, in the context of armed conflicts, notably by terrorist groups."

Ambassador Michele Sison, US Deputy Permanent Representative to the UN, decried cultural heritage trafficking and denounced war-time destruction of cultural and religious sites. Ambassador Sison's excerpted remarks follow:

"Over the past two decades, we have seen damage to and destruction of our shared cultural heritage on an unprecedented scale.

"Those engaged in conflict and terror deliberately destroy cultural property to create fear, undermine governments, and cause animosity among different groups within a society. The wanton devastation by ISIS, Al Qaeda, and others in Iraq and Syria, by the Taliban in Afghanistan, and by other groups elsewhere has taken a devastating toll not only on human lives, but also on our common cultural heritage.

"This destruction tears at the very fabric of our societies.

"The policy of the United States government is clear: the unlawful destruction or trafficking of cultural heritage is deplorable – we unequivocally oppose it, and we will take all feasible steps to halt, limit, and discourage it.

"The United States seeks to hold accountable those who engage in the illegal trade of cultural property and the perpetrators of deliberate cultural heritage destruction.

"Enhanced international law enforcement cooperation to counter these destructive and destabilizing activities is already showing results.

"For example, the United States shared information with our international partners about the activities of the deceased Abu Sayyaf, a former high-ranking ISIS official who was responsible for financing the group’s terrorist activities, including through the illicit sale of antiquities.

"Growing international coordination and cooperation among law enforcement and other agencies enabled the United States to take direct action in order to seek the recovery of these items.

"We believe that there are no “one-size-fits-all” strategies for cultural heritage preservation in armed conflict. Complex situations around the world warrant a variety of responses.

"Many states have demonstrated the ability to safeguard their cultural treasures in conflict zones during times of crisis.

"It is a long-standing U.S. policy to preserve cultural heritage in situ whenever possible, thereby avoiding the need to remove cultural property from its country of origin."

Sources: https://usun.state.gov/remarks/7721 and http://www.un.org/press/en/2017/sc12764.doc.htm
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.

Obama's CPAC Scheduled to Review Cultural Property Agreements for President Trump

The newly fashioned Cultural Property Advisory Committee (CPAC), with all eleven members appointed or reappointed by former President Barack Obama shortly before leaving office in January, is expected to review extensions of bilateral agreements between the United States and Belize, Mali, and Guatemala during a meeting in Washington, DC beginning on March 21. It will be CPAC's first announced meeting after President Donald Trump's inauguration last month.

Maya ruins in Lamani, Belize

CPAC advises the president or his designee on countries' requests for protection of cultural heritage under 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.

Longtime Washington insider Evan Ryan used to be the president's designee as Assistant Secretary of State for Educational and Cultural Affairs, but she left the State Department last month to enter the private sector. Principal Deputy Assistant Secretary Mark Taplin, who is a career official, temporarily fills the vacancy now.

The bilateral agreements, also called Memoranda of Understanding (MoU), authorize US import restrictions on endangered cultural heritage originating from the three nations. The agreements have a five year life-span under the terms of the Cultural Property Implementation Act (CPIA).

Belize first entered an agreement with the US in 2013. It is set to expire in February 2018.

Mali, meanwhile, received help in 1993 when the US erected  emergency import restrictions on cultural material in September that same year. The two nations signed a formal bilateral agreement in 1997 and have renewed their MoU every five years thereafter. The last renewal was in 2012, and the next renewal comes again in September 2017, on the heels of a recently issued International Council of Museums Red List, which flags an artifacts trafficking emergency confronting Mali's cultural heritage, and this past fall's International Criminal Court conviction of Ahmad Al Faqi Al Mahdi, who destroyed cultural and religious heritage in the African nation.

The American MoU with Guatemala expires in September 2017, and there have been import restrictions on designated cultural property from that country since 1991. The last renewal took place in 2012 when the White House expanded the import protections to cover ecclesiastical objects from approximately 1524 to 1821 A.D., in addition to Pre-Columbian archaeological artifacts dating from 2000 B.C. to 1524 A.D.

Photo credit: Shmuel Shoshtari/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.

President Obama Fills Last CPAC Positions

With just nine days left before exiting the White House, President Barack Obama has completed the last four appointments to the eleven member Cultural Property Advisory Committee (CPAC).

On Thursday the president announced the appointments of John Frank and Karol Wight, and the reappointments of Lothar von Falkenhausen and Nancy Wilkie.

The White House announcement comes on the heels of President Obama's reappointments of Rosemary Joyce and James Wright Willis on January 5.

The president named five others to CPAC late last year, including Dorit D. Straus on December 15 and Adele Chatfield-Taylor, Shannon Keller O'Loughlin, James K. Reap, and Jeremy Sabloff on September 16.

CPAC members give advice when foreign nations petition the United States under the 1970 UNESCO Convention for help to protect cultural heritage in danger of looting.

President-elect Donald Trump is scheduled to replace Obama on January 20.

Photo credit Sara Moses/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.

President Obama Fills More Cultural Heritage Policy Positions

Two weeks ahead of President-elect Donald Trump's inauguration, President Barack Obama made further appointments to cultural heritage policy posts.

The White House announced the reappointment of the following individuals on Thursday:

• Rosemary Joyce - Cultural Property Advisory Committee; first appointed to CPAC in 2011

• James Wright Willis - Cultural Property Advisory Committee; first appointed to CPAC in 2003

• Joan Ellyn Silber - Commission for the Preservation of America’s Heritage Abroad; first appointed to the Commission in 2015

In 111 days, the Obama administration has filled seven of the eleven total CPAC positions.

Photo credit: Mike Thorn

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.