The Antiquities Trade, Museums, Legislation,and Borders

[Ashley Washington]

Legislation from the US perspective: As shown in the few examples provided in this paper, the United States is one of the largest market countries for antiquities from Central America and Mexico (as well as other materials from around the world). While sales throughout Europe may be (and probably are) higher than those in the US, Europe isn’t a country per-se and, hence, can’t be regulated under the guise of a nation-state model. Even if the European Union decided on broad-sweeping legislation, Switzerland, a key node in the antiquities trade, is not a member state. Switzerland is often touted as the key place to launder title because, until recently, the Swiss allowed looted antiquities to pass through their borders, thus providing an opportunity to mask the dirty history of an object. The close proximity of a large US market for materials from Central America and, particularly, Mexico makes the United States desirable for those trafficking in antiquities. The traditionally porous US border with Mexico has made for an easy transit route, as have the multiple direct shipping routes and direct airline flights from Central America to US ports of entry.
    With the vibrant trade, it is no surprise that the US does have a number of legal instruments that pertain to cultural patrimony in Central America and Mexico. Two of these are over thirty years old: the 1970 Treaty of Cooperation between the United States of America and the United Mexican States Providing for the Recovery and Return of Stolen Archaeological, Historical and Cultural Properties and the 1972 Pre-Columbian Monumental and Architectural Sculpture and Murals Statute (date of enforcement June 1 1973). The US-Mexico Treaty is more comprehensive than the Pre-Columbian Statute for material within the boundaries of Mexico. In addition to archaeological goods, the US-Mexico Treaty covers historical materials, which includes colonial period materials, demand for which is growing. Furthermore, Mexico has a national ownership law and it has been upheld by the United States under the National Stolen Property Act of 1946, known as the McClain Doctrine (see below).
   The 1972 Pre-Columbian Monumental and Architectural Sculpture and Murals Statute is particularly effective, at least in theory, because it is regional in coverage, not specific to nation-states, unlike the US-Mexico Treaty or the various bilateral agreements with the US (see below). The focus of a statute on the material, rather than the state, alleviates the need to correspond ancient and modern boundaries. The specific nature of this statute is clearly presented in the US Code of Federal Regulations for Customs Officers, the actual implementing documents. Yet in reviewing the US Customs and Border Protection, “Special Rules of Protected Cultural Property” section (p. 14), specific country names have crept into the guidelines. With regard to this statute the compliance publication states that such materials “are the product of a Pre-Columbian Indian culture of one of the following countries: Belize, Bolivia, Columbia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Panama, Peru or Venezuela…” In addition to problems with translation from one document to the next, this highlights a fundamental attempt to favor modern boundaries over ancient ones, undermining the very nature of the statute.
    The Pre-Columbian Statute does not cover movable items that are not sculptures or murals or parts there of. Yet these materials constitute much of the archaeological record: ceramic vessels, ceramic figurines, stone tools, stone jewelry, stone vases, and items made of shell. There is additional legislation in the United States for these types of objects. Unlike the Pre-Columbian Statute, however, such legal instruments are country specific.       

[Ashley Washington]

CPIA and MOU: Under the 1983 Cultural Property Implementation Act, the implementing legislation for the 1970 UNESCO Convention in the United States, there are several ways of stopping material at the US border. The CPIA implements the 1970 UNESCO articles 7b and 9. Article 7b focuses solely on stolen materials; that is, materials that have been inventoried from a collection and/or excavation. The US agrees to stop stolen materials from any state party to the 1970 UNESCO Convention. Article 9 deals with materials that have been plundered and, hence, lack context. Yet, in order for material to be stopped at the US border, the modern nation state where the material in jeopardy resides in the ground must formally ask the US for a bilateral agreement or what is commonly referred to as an MOU (Memorandum of Understanding) (see Luke and Kersel 2005).
    The process of requesting a MOU is not easy. A country’s request must address four points:  pillage is a problem; efforts are in place to combat pillage; the US market is part of the problem; and the history in question is valued by the international community (e.g., interest in archaeological research in country and/or loans of material for international exhibitions). A request must be submitted via diplomatic channels, usually transferred in writing to the in-country US Embassy, but it may also be transferred to the US via the respective country’s Embassy in Washington, D.C., among other channels. The request is then reviewed by the Cultural Heritage Office at the US Department of State and transferred to the Presidential Cultural Property Advisory Board – a group of experts in the fields of museums, archaeology, anthropology, and the trade. The committee then recommends that an agreement be made or not. The appointed decision maker makes the final determination. If the decision is favorable, the country enters into an agreement, a formal MOU. This process can take 2-6 years (or more) to complete; a MOU is a five-year agreement that may be renewed multiple times. An emergency agreement for a specific area may precede a formal MOU. At this time, a number of Central American countries have MOUs (see Table 1). All such agreements cover Pre-Columbian materials most likely to be pillaged, but do not cover Colonial material (provision under the “ethnographic” category of the CPIA), which the agreements between the United States, Peru and Bolivia do cover.
    Within the CPIA there is room for multilateral agreements with other nation states. Such an option has never been presented by a group of countries. Central America makes a good first case precisely because many countries already have MOUs with the United States. The benefit of a regional agreement would be to alleviate the process of determining ancient vs. modern boundaries. One key issue for Central America would be the implementing date for a multilateral agreement, given that the various MOUs have a number of different dates of enforcement.
    A more clear-cut approach would be for countries that share ancient cultural regions, such as those in the Mediterranean, to apply for a multilateral agreement from the outset, alleviating the country-by-country process and providing for more effective coverage. For example, Greece and Turkey could approach Cyprus and Italy – countries with MOUs – and ask for a concentrated diplomatic effort with a region-wide approach. Alternatively, these countries could side-step the CPIA process entirely and focus on broad-sweeping legal instruments, such as the Pre-Columbian Statute, geared towards specific types of objects, monuments, etc.

[Ashley Washington]

Proper documentation: Both the CPIA and the Pre-Columbian Statute mandate satisfactory evidence. What constitutes proper documentation under the Pre-Columbian Statute is not specified. Yet, when read closely, satisfactory evidence under the CPIA allows for a good faith statement that “to the best of [the importer’s] knowledge, the material was exported from the State Party on or before the date such material was designated” under the respective legislation. Ideally such statements should be corroborated, really probing whether the importer is naïve enough not to understand the egregious nature of plunder in so many source countries. Making such claims is becoming harder and harder as more and more legal cases involving key figures and institutions are highlighted in the mainstream press. Furthermore, such naivety is clearly not present in the dealing community. In fact, as Mackenzie's recent chilling account describes, dealers know exactly what they are up against and continue to operate, hedging their bets. An excerpt from Mackenzie's (2005: 107) book highlights this sentiment:

[Would it be fair to say that if the information was available, where the objects were found, that would be of interest to you?]

Of course it would be of interest to me, and I desperately want to give it, but I would have to caution it with  “said to be" or  “allegedly from" because otherwise I could lose it. It's obvious…

[What you can do, I think, is improve your mechanisms for recording and passing on provenance information.]

I've tried and I get hit for it. I've destroyed some of it out of fear. (Geneva Collector I)
   
    The bottom line is that context doesn’t appear to be valued enough for collectors to retain it when it is known and/or ensure that objects have it, and they will go through many hoops to get what they want: the object and/or money for the object. Again, an excerpt from Mackenzie's book highlights this point:

    If a collector wants a particular piece, a collector wants a particular piece. That's why you'll find a lot of these sort of works are literally going to an end collector who might have employed a dealer to start doing the work, the searching for them. For instance, a person might say look, they want a Maya head, they want this, this, this, and this. And then they'll go off and they'll ask dealers and a dealer will know someone who knows someone, and the next thing one gets pulled away. (Melbourne Dealer 2; from Mackenzie 2005: 144)

[Ashley Washington]

If indeed this sentiment is persuasive throughout the dealing and collecting communities, as Mackenzie suggests, then, the criteria for satisfactory evidence need to be pursued with great vigor by law enforcement and their legal counterparts. If collectors are willing to get material regardless of safeguards put in place by various legal systems, is there any hope?
    Court Cases: A violator of the CPIA or the Pre-Columbian Statute in the United States is required to give over the materials. These instruments are civil, not criminal. Under a positive criminal prosecution the defendant may serve jail time. A number of smuggling statutes and the National Stolen Property Act of 1946 are criminal, and over the years they have been used against violators of cultural property.
    The National Stolen Property Act (NSPA) received renewed attention after the conviction of Fredrick Schultz in 2003, the former President of The Association of Dealers in Ancient, Oriental and Primitive Art. In United States vs. Schultz, Schultz was convicted of dealing in stolen goods from Egypt. This decision affirmed the McClain case (United States vs. McClain) from the late 1970s involving Mexican material. While the McClain doctrine is the most cited, another case, also in the 1970s, has also been successfully prosecuted under the NSPA, United States vs. Hollinshead. In this case Hollinshead was found to be in violation of the Guatemalan ownership laws for the taking of a Maya stela from the territory of Guatemala. The defendants were part of a smuggling ring moving Maya stelae out of Guatemala through the Belize border and into the United States. The stelae were cut-up into pieces and transported in boxes marked “personal effects” (Gerstenblith 2001: 214, fnt. 65).

[Ashley Washington]

Fig.14: Maya vase of the Landon T. Clay collection, which may have been looted from the Petén region of Guatemala. The vase is currently kept at the Museum of Fine Arts in Boston. Late Classic period AD 725-760 (photo © Museum of Fine Arts, Boston; Gift of Landon T. Clay).

[Ashley Washington]

In all of these cases the court found that each country – Egypt, Guatemala, and Mexico – had sufficiently strong and clear language in their cultural heritage legislation that ownership of all cultural heritage was indeed vested in the nation state. Trafficking in cultural patrimony without permission from the respective state is, then, dealing in stolen goods. Many countries do have equally strong ownership laws in addition to export laws. The real crux of the issue is how such criteria will be enforced at the US Border. With three successful cases, the most recent in New York City –  the heart of the US antiquities trade – can the US now enforce the cultural heritage ownership laws of other countries at our borders?
    In addition there are a number of smuggling statutes that can certainly be used to detain goods, the final investigation determining whether the goods will be seized. Like the National Stolen Property Act, violation of smuggling statutes is criminal. Such statutes focus on falsifying information, such as declaration of artifacts as replicas or craft goods, altering original documentation or artifacts as well as false declaration of value or country of origin. The 2003 case of United States vs. Douglas Hall involved violation of 18 U.S.C. § 371, 476, 545, and 542 – all smuggling statutes. The importer, Douglas Hall, had falsely declared the value of merchandise from Honduras (279 objects declared at $37) at entry in Miami, violation of 18 U.S.C. § 2 and 545. His attempt to sell the materials, now valued at $11,000 at his shop “Accent on Wild Birds” in Ohio, placed him in violation of 18 U.S.C. § 371 (specific to the sale of material imported in violation). While Hall did not work alone (a Guatemalan national was with him as well), the court found that Hall was the organizer of the criminal activities. Hall appealed the case. In 2004, his appeal was denied.
    There are many more examples of violations of smuggling statutes. The Hall case is a good one because it highlights that trafficking of cultural patrimony can be thwarted using a number of US legal instruments that aren’t necessarily specific to cultural patrimony. The trafficking of objects involves multiple stops. In many cases what is illegal in one country is legal in the next, yet upon transfer to a third party, the material is again in violation of law. Hence, people try to launder title in many different countries. The frequent movement of archaeological goods, then, implies a long trail of paperwork, paperwork that may have false declarations.
    Conclusions: In conclusion, the current situation is thus: there is a large problem of looting in  Maya areas as well as throughout the globe; there is legislation in place to combat this problem; yet, there is a thriving antiquities market, regardless of the legal instruments both in the source countries and the market countries.     What all the case studies and legal analyses come down to is location. Where was the object looted from, and, if we don’t know, how can we stylistically link it to a region? One US instrument – the Pre-Columbian Statute – focuses on the objects first, disregarding the modern boundary question. Yet in the 2004 Customs guidelines modern country boundaries have been introduced, suggesting that for seizure you need verification of the country of origin. Furthermore, many of the instruments specific to cultural patrimony provide wiggle room for those folks dealing in cultural property.
    The problem, thus, is two fold: the market drives looting and there is not a strong will to regulate the market with professional standards. That is, if the legislation specific to cultural heritage or even the plethora of smuggling statutes were enforced at the borders of source countries or market countries, illicit material would stop flowing through the market place. If law enforcement actually demanded real satisfactory evidence, people dealing in illicit materials would be exposed.
    The smuggling statutes and the National Stolen Property Act should be enough to shut down this market for illicit goods. If not, multilateral or regional agreements/statutes are yet another way to deal with the problem head-on. If museums want goods for display and education, the CPIA can provide for official diplomatic channels for long-term loans, currently a success under the Italy-US MOU. Let other legal instruments – the criminal ones – be those that deal with people and institutions trafficking in illicit materials, particularly people and institutions who do know better.

[Ashley Washington]

Bibliography:

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Arden, T. 2004. “Where are the Maya in Ancient Maya Archaeological Tourism? Advertising and the Appropriation of Culture.” in Yorke Rowan and Uzi Baram (eds.), Marketing Heritage: Archaeology and the Consumption of the Past. Altamira Press, New York.

Boone, E. H. (ed.) 1993. Collecting the Pre-Columbian Past. Dumbarton Oaks, Washington, DC.

Brodie, N. and C. Luke. 2006. “The Social and Cultural Contexts of Collecting.” in Neil Brodie, Morag Kersel, Christina Luke, Kathryn Walker Tubb (eds.), Archaeology, Cultural Heritage and the Antiquities Trade, pp.303-320. University of Florida Press, Gainesville, Florida.

Chinchilla, O. 1998. “Archaeology and nationalism in Guatemala at the time of independence.” Antiquity 72: 376-387.

Coggins, C. 1972. “Archaeology and the Art Market.” Science 175(4019): 263-66.

Edgers, G. and S. Pinto. 2006. “MFA agrees to return disputed art to Italy.”  Boston Globe (31 July 2006).

Gerstenblith, P. 2001. “The Public Interest in the Restitution of Cultural Objects.” Connecticut Journal of International Law 16: 197-246.

Gilgan, E. 2001. “Looting and the Market for Maya Objects: a Belizean Perspective.” in Neil Brodie, Jenny Doole, and Colin Renfrew (eds.), Trade in illicit antiquities: the destruction of the world's archaeological heritage, pp.73-88. McDonald Institute Monographs for Archaeological Research, Cambridge.

Guenter, S. 2006. “Conversations: Site Q Discovered!” Archaeology 59(1).

2004. “The Never-Ending Story: More Looting at Dos Pilas.” Mesoweb News and Reports, available from: http://www.mesoweb.com/reports/ DPL/looting.html

Joyce, R. A. 2003. “Archaeology and Nation Building: A View from Central America.” in Susan Kane (ed.), The Politics of Archaeology and Identity in a Global Context, pp. 79-100. Archaeological Institute of America, Boston.

Kennedy, R. and H. Eakin. 2006. “For Met chief, no acquisitions regrets.” International Herald Tribune (1 Mar. 2006).
 
Luke, C. 2006. “Diplomats, Banana Cowboys, and Archaeologists in western Honduras: A History of the Trade in Pre-Columbian Materials.” International Journal of Cultural Property 13(1)25-57.

Luke, C. and J.S. Henderson, 2006. “The Plunder of the Ulúa Valley, Honduras and a Market Analysis for its Antiquities.” in Neil Brodie, Morag Kersel,  Christina Luke, Kathryn Walker Tubb (eds.), Archaeology, Cultural Heritage and the Antiquities Trade, pp.147-172. University of Florida Press, Gainesville, Florida.

Luke, C. and M. Kersel. 2005. “The Antiquities Market": A retrospective and a look forward.” Journal of Field Archaeology 30(2): 191-200.

Mackenzie, S.M. 2005. Going, Going, Gone: Regulating the Market in Illicit Antiquities. Institute of Art and Law, Leicester.

Maudslay, A. P. 1889-1902. Biologia Centrali-Americana. 5 vols. London.

Matsuda, D. 1998. “The Ethics of Archaeology, Subsistence Digging, and Artifact Looting in Latin America: Point, Muted Counterpoint.” International Journal of Cultural Property 7(1): 87-97.

Mortensen, L. 2006. “Structural Complexity and Social Conflict in Managing the Past at Copán, Honduras.” in Neil Brodie, Morag Kersel, Christina Luke, Kathryn Walker Tubb (eds.), Archaeology, Cultural Heritage and the Antiquities Trade, pp.258-269. University of Florida Press, Gainesville, Florida.

Schuster, A. M.H. 1997. “The Search for Site Q.” Archaeology 50(5).

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Stuart, G. 1997. “The Royal Crypts of Copán.” National Geographic 192(6): 68-93.

US Customs and Border Protection. 2004. “What Every Member of the Trade Community Should Know About: Works of Art, Collector's Pieces, Antiques, and Other Cultural Property.” An informed compliance Publication.

Additional Photo Credit:

(fig.14): Cylinder Vase. Maya, Late Classic Period, AD 725-760. Place of Manufacture: El Petén, Ik’ polity, Guatemala, Motul de San José area. Earthenware: orange, red, dark pink, and black on cream slip paint. 23.5 x 12.4 cm (9 1/4 x 7/8 in.) MS1121; Kerr 1439. Museum of Fine Arts, Boston. Gift of Landon T. Clay. 1988.1177.

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 Author's Biographical Note: Christina Luke (PhD Cornell 2002) teaches at Boston University. In addition to researching legislation and the antiquities trade, she conducts archaeological fieldwork in Mesoamerica as well as western Turkey, supported by grants from the National Science Foundation. She recently co-edited Archaeology, Cultural Heritage and the Antiquities Trade (2006), and is co-editor of and contributor to the Antiquities Market column of the Journal of Field Archaeology.

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   This article appears on pages 46-54 of Vol.4 No.3 of Athena Review, and has been reformatted for internet  publication.. The complete text and original format may be obtained in the printed version of the magazine. 
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http://www.athenapub.com/15-central-america2.htm

[Kara Sundstrom]

Great topic!