Wednesday, January 20, 2021

Thai Cultural Property Case Edges Closer to Settlement

Thailand lintels part of the cultural property forfeiture case in California.
Lintels 1 and 2 from the Asian Art Museum.
Photo: US Attorney Northern District of California.

Lintels allegedly taken unlawfully from Thailand and given to the Asian Art Museum in California are the subject of a federal forfeiture complaint that seeks repatriation of the cultural property.

The United States Attorney for the Northern District of California and lawyers for the City and County of San Francisco said yesterday that "a stipulation of settlement is likely forthcoming," which would end a dispute over the repatriation of two lintels from Thailand located in a San Francisco art museum.

The case of United States of America v. Two One-Thousand-Five-Hundred-Pound, Hand-Carved Lintels Removed from Religious Temples in Thailand (N.D.Cal. 2020-cv-07537) started when the Consul General of Thailand spotted the architectural elements on display at the Asian Art Museum in 2016. He demanded their return, but the museum reportedly said nothing until the U.S. government intervened, a
ccording to a civil forfeiture complaint filed by federal lawyers in October 2020, which seeks title to the cultural artifacts.

The court complaint describes a meeting that took place in May 2017 between the Thai Minister of Culture, the American ChargĂ© d’affaires in Bangkok, and a Homeland Security Investigations (HSI) agent that discussed how the defendant property "belonged to two ancient temples in Northeastern Thailand and were designated as cultural artifacts protected under the laws of Thailand since 1935."

Archaeologists concluded that one lintel was from the Prasat Nong Hong Temple in Buriram Province, and the other was from the Prasat Khao Lon Temple in Sa Kaeo Province.

The forfeiture complaint recites that the City of San Francisco received the lintels as part of a donation from a collector (unnamed in court papers) who acquired the lintels in London and Paris in 1966 and 1968, respectively. 

"With respect to LINTEL 1," the U.S Attorney's Office writes, "the Museum had several letters that COLLECTOR 1 exchanged with representatives of GALLERY 1, telling the court that "one of the representatives of GALLERY1 and COLLECTOR 1 exchanged letters concerning the potential that at least one lintel that COLLECTOR 1 had purchased had been stolen from Thailand, and that another artifact had been taken out of Thailand illegally."

"With respect to LINTEL 2," prosecutors contend that "COLLECTOR 1 indicated that a Thai lintel in his possession had been reported stolen by the Thai government, and that the Thai government had asked COLLECTOR 1 to return the lintel."

Federal cultural property forfeiture cases like this one, where no bilateral agreement under the Cultural Property Implementation Act exists between the U.S. and Thailand, routinely rely on 19 U.S.C. § 1595a(c)(1)(A). That statute maintains that "merchandise shall be seized and forfeited if it is stolen, smuggled, or clandestinely imported or introduced."

Here, federal prosecutors assert that the Thai lintels constitute property owned by Thailand that was removed without permission, suggesting that the lintels are stolen property subject to legal forfeiture by the U.S. But they more expressly claim that "LINTELS 1 and 2 were imported into the United States in violation of Thai law, i.e. without the requisite export documents."

The U.S. does not enforce foreign export laws. But the McClain/Schultz doctrine--which goes unmentioned in the government's forfeiture complaint--allows U.S. courts to recognize a foreign export regulation when the foreign nation's cultural patrimony law clearly vests ownership in cultural property. 
Whether Thailand's patrimony law sufficiently grants such title is not made particularly clear in the court complaint. United States .v Schultz, 333 F.3d 393 (2nd Cir. 2003)United States v. McClain, 545 F.2d 988 (5th Cir.1977)

Prosecutors mention that both Thailand's 1934 Act on Ancient Monuments, Objects of Art, Antiquities and National Museums and its 1961 Act on Ancient Monuments, Antiques, Objects of Art, and National Museums "deem cultural artifacts, like LINTELS 1 and 2, state property." But the attorneys do not express that the lintels either constitute or are derived from proceeds traceable to a violation of the National Stolen Property Act under either 18 U.S.C. §§ 2314 or 2315. Instead, they emphasize that these patrimony laws "govern whether and/or when a piece of art is permitted to be exported from Thailand;" that they "forbade the unlicensed export of archaeological artifacts from specifically named archeological sites, including the Prasat Nong Hong and Prasat Khao Lon Temples;" and that "[n]o person or entity ever sought an application for an export license or other form of permission to take these lintels out of the Kingdom of Thailand prior to their removal from the country."

Such legal issues ultimately will prove academic. That is because the U.S. Attorney's Office tells the court that "significant discussions concerning settlement have taken place."

HSI Special Agent David Keller will discuss "US Law Enforcement’s Tool Box: Case Studies in Art and Antiquities Trafficking from Thailand" during a Cranfield University lecture taking place online on January 21, 2021. Register here.


Yesterday Magistrate Judge Donna Ryu dismissed the government's civil forfeiture claim after the United States and the City and County of San Francisco agreed to settle their dispute. The parties filed a stipulation on February 4 that calls for the return of the lintels to Thailand after the Asian Art Museum completes a formal deaccessions process and the Thai government files for administrative petition-and-remission with the U.S. Department of Justice. Once the museum surrenders the cultural objects to federal officials, the U.S. government will bear related expenses for the artifacts.

The forfeiture stipulation filed submitted to the court is typical in that its entry does "not constitute any admission of wrongdoing or liability" and "shall not be construed as a punishment or penalty."

The U.S. Attorney David Anderson reacted positively to the settlement, announcing“The United States is committed to returning stolen relics to nations seeking to preserve their heritage. We will use all our power, including civil forfeiture, to ensure that misappropriated cultural items are returned to their rightful owners.” His office's press release continued to emphasize that the lintels' export "renders them forfeitable under federal law," a legal interpretation that may not be as firm as suggested. But this legal claim is now moot because the case has been resolved successfully in the government's favor.

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