Illicit Trafficking of Cultural Patrimony and Legal

Protection of Cultural Heritage in Peru

Daniel Kobrinski Visiting Researcher

December, 2011

Memorandum: Law for the Recovery of Stolen Art in the United States

RE: The aim of this memorandum is to provide an overview of the laws and significant cases

in the area of repatriation of antiquities found in the United States. This memorandum will

seek to clarify what is required for a source country such as Peru to seek repatriation of

cultural patrimony that is located in a market country, such as the United States, and to

clarify what are the applicable laws and legal requirements in such cases.

United States Treatment of Cultural Property

There are a variety of different ways in which the United States Legal System deals with the

issue of theft and illicit trafficking of cultural patrimony, and in which foreign governments

may attempt to reclaim stolen cultural property in the United States. For example, a foreign

government can pursue a civil replevin action. Replevin is a civil legal action in which an

original owner seeks to recover possession of a property wrongfully taken or retained by

another party. The United States Government can also seize antiquities in a forfeiture

action on the basis of violation of United States export laws. The United States has also

entered into special bilateral treaties with several countries (for example the PERU-US

Memorandum of Understanding) pursuant to the Cultural Property Implementation Act of

1983, a piece of legislation which implemented the UNESCO Convention of 1970. Pursuant

to these bilateral agreements, the United States agrees to enforce the export laws of the

foreign countries and seize and return items brought into the United States from these

countries without a permit. The issue of foreign antiquities can also arise in the criminal

context, in which the United States government can seize stolen cultural patrimony and seek

criminal charges against a person accused of dealing (or conspiring to deal) in stolen cultural

property under the National Stolen Property Act.

One of the central issues underlying the efforts of foreign governments to reclaim stolen

property is whether the United States Courts will recognize foreign laws that vest ownership

of cultural property in the national government of that respective government.

Therefore the question of establishing national ownership of cultural property is a very

important issue in many cultural patrimony cases.

Replevin

Replevin is an action taken in Civil Court to recover personal property said or claimed to be

unlawfully taken.

A basic principle of U.S. Law is that no one, not even a good faith purchaser, may obtain

good title to stolen property. Therefore, even if the purchaser of an item was unaware that

the item was stolen, has possessed the item for a long period of time, or purchased the item

from a subsequent buyer and not directly from the thief, this does not change the status of

the item´s title as being stolen. A stolen piece of art is always stolen, no matter how many

owners the piece has had. (Note that in Civil Code countries such as France and Germany,

the rule is different: a good faith purchaser can obtain good title to a stolen piece of

property. In the United States, a true owner of a property always has a right to reclaim

stolen property; unless there is a valid defense to the claim, such as the Statute of

Limitations.

STATUTE OF LIMITATIONS: The Statute of Limitations is the period of time in which a

plaintiff may file a claim. After the Statute of Limitations, or “time period”, has

expired, the claimant is barred from filing a claim for the return of property. The

important question for any Statute of Limitations defense is when does the time

period begin? For example, in New York, the claimant has a period of three years to

sue for the return of the property beginning only after the defendant has refused a

request to return the property. This is known as the ¨Demand and Refusal¨ Rule.

LACHES DEFENSE: Another defense against a lawsuit to reclaim stolen property is

known as the Laches Defense. This refers to an unreasonable delay in pursuing a

right or claim in a way that prejudices the opposing party. Therefore, the opposing

party is asserting that the claimant waited an unreasonable amount of time before

making a claim to recover the property.

Because the true owner of property always has the right to reclaim stolen property, the

crucial issue becomes who is the true owner of the property in question. In order to win a

claim based on replevin, the plaintiff must prove that it is the true owner. When the plaintiff

is a foreign government, the same standard applies; the foreign government must establish

that it is the true owner of the property in question. This can prove to be a difficult standard

for foreign governments to meet. Normally, in an action for replevin, the plaintiff is an

individual claiming she is the true owner of the property, and in order to prevail, she has to

prove that she owns the item in question, either by providing some type of title, a receipt, or

other evidence of ownership. A foreign government claiming an object must similarly

provide evidence of ownership, which could be in the form of an inventory or registry record

of the item. However, many nations have national patrimony ownership laws which vest

ownership in the state over all cultural patrimony items, whether or not they have been

registered, or have even been discovered.

In the United States, property rights are traditionally associated with individual rights. The

protection of individual private property rights is enshrined in American jurisprudence and

protected by the 5th Amendment to the Constitution, which states that an individual cannot

be deprived of property rights without due process (the Government must act within the law

and afford fair process before taking ones property).

Nonetheless, the United States has recognized the importance of fighting the illicit

trafficking of stolen antiquities and patrimony by becoming a signatory to International

Conventions and by forging bi-lateral agreements with various nations to protect their

respective patrimony. Furthermore, U.S. courts have increasingly been willing to recognize

that foreign governments can be the owner of cultural property via the enforcement of

national patrimony laws.

MCLAIN DOCTRINE

One of the most important and influential United States Federal court cases relating to the

issue of foreign governments establishing ownership in cultural property was the case,

United States vs McClain (1979). In this case, the US government prosecuted several

American individuals who were caught smuggling antiquities out of Mexico and selling them

in the United States. Mexico at the time had various statutes that protected cultural

patrimony and vested ownership of all unexcavated antiquities to the state. The individuals

were prosecuted and convicted for dealing in stolen property.

In order for property to be classified as stolen, there must be an owner, and the US

Government argued that Mexico’s patrimony laws established the state of Mexico as the

owner of undiscovered antiquities. The defendants appealed their conviction, arguing that

the items were not technically “stolen” because there was no prior individual private

ownership of the items, and that Mexico’s patrimony laws were vague and did not provide

fair notice that all undiscovered antiquities belong to the state. The defendants also argued

that the US court should not punish them on the basis of enforcing a foreign law.

The issue was whether the US court would recognize Mexico’s patrimony laws as vesting

national ownership in the undiscovered antiquities to the state, thereby treating the

unauthorized removal of such antiquities as theft.

Although the court overturned some of the convictions based on uncertainty surrounding

some of Mexico’s patrimony lawsi, the court did confirm the defendants’ conviction of

conspiring to deal in stolen antiquities, and thus the court recognized Mexico’s national

patrimony laws as vesting ownership. The Court disagreed with the defendants’ argument

that it was enforcing foreign law. Rather, the court was enforcing United States Law in

prosecuting the defendants for theft, and was recognizing Mexican law in vesting ownership

in patrimony, under the condition that the law must be an ownership law and must be

clearly enforced in Mexico.

MCCLAIN DOCTRINE: Foreign national patrimony laws that vest ownership of

undiscovered antiquities in the national government create ownership that is

recognized by United States Courts if certain requirements are met.

REQUIREMENTS OF THE MCCLAIN DOCTRINE: The McClain case established requirements

that need to be met in order for the Courts to recognize foreign patrimony ownership laws -

The McClain doctrine requirements:

1) The foreign government must have an unambiguous national patrimony law that

vests ownership of undiscovered antiquities in the state and that is sufficiently clear

to give notice to United States citizens of what conduct is prohibited.

2) The national patrimony law must have been in place when the antiquities were

discovered and removed from the country. (In other words, it must be proven that

the antiquities were discovered and removed after the patrimony law was put in

place; the statute is not applied retroactively)

3) The antiquities must be identified as having been found within the modern borders

of the nation.

Although the McCain case was a criminal law case, the McClain doctrine can be applied in

general to different types of cases where a foreign government is attempting to establish

ownership of alleged stolen cultural property that has been located in the United States.

Therefore, US courts have applied the requirements in general to other types of cases, such

as replevin actions and forfeiture actions against property.

REQUIREMENTS FOR A FOREIGN GOVERNMENT TO PROVE OWNERSHIP: MCCLAIN

DOCTRINE APPLIED TO DIFFERENT TYPES OF CASES

According to the McClain Doctrine, In order for a foreign government to succeed in a

replevin action, a foreign government will need to:

Prove that the object in question is the stolen item and that it comes from within its territory;

and,

Prove that there are national ownership laws in place that clearly vest ownership of cultural

patrimony items to the government, and that such laws were in place at the time the objects

were discovered and removed from the territory.

OBSTACLES FOR FOREIGN GOVERNMENTS: These requirements present many obstacles for

governments to overcome.

Obstacle: Proving an Item in dispute is in fact the stolen item:

In the case where a stolen antiquity was previously catalogued or registered in a collection

or museum, it is relatively simple to identify the item and prove it was stolen. However, in

the case items which were illegally excavated and smuggled outside the borders of the state,

there are no inventory records or other types of evidence that would allow a nation to

conclusively identify the item as being stolen.

It is not enough for a foreign government to demonstrate that similar items with the same

style or technique have been discovered within its borders. Courts have noted that the

boundaries of ancient civilizations are not the same as the boundaries of modern countries,

and therefore antiquities that were created by an ancient culture could be found within the

modern borders of multiple different countries.

Obstacle: Establishing that a clear national patrimony ownership law was in place:

The foreign government must conclusively prove that there is a patrimony law in place that

clearly vests ownership of antiquities in the government. The patrimony laws must clearly

be ownership laws, and not merely laws that prohibit export of antiquities.

United States Courts have generally followed the principle that export laws of a foreign

country are considered internal policing laws of the foreign country, and are not enforceable

in US Courts. Only patrimony laws that clearly establish government ownership will be

enforced by U.S. courts in property disputes or criminal actions which depend on the item

being defined as stolen. It is important to Note: The United States Government, via the

CPIA and Special Bilateral agreements, will enforce export regulations of foreign countries,

(for example the Peru MOU does just that). The legal determination of ownership by a US

court is different than the issue of enforcement of export controls.

There are several cases that illustrate these hurdles for foreign governments in antiquities

cases in the United States.

PERU VS JOHNSON (1989)

In this case, the Government of Peru filed a civil claim for replevin of Pre-Colombian artifacts

that were purchased by defendant Benjamin Johnson. Because this was a civil replevin

action, Peru was claiming to be the true owner of the property – the Pre-Colombian artifacts

that the Defendant purchased – and Peru was seeking the return of the property from the

possession of the defendant. In this case, the court determined that Peru did not meet the

legal and factual burdens needed in order to prove ownership and have the items removed

from the Defendant’s possession and turned over to Peru.

Applying the analysis used in the McClain doctrine, the court held that Peru could not

conclusively establish that the Pre-Colombian artifacts were discovered and excavated

within the modern borders of Peru. Peru had an expert witness, Archaeologist Dr. Francisco

Iriarte, testify that all of the artifacts appeared to be from a Peruvian style, and to come

from excavation sites in Peru. However, the archaeologist and Peru acknowledged that the

Pre-Colombian culture spanned outside the borders of modern day Peru, and it is possible

that the Pre-Colombian items could have been found in Ecuador, Bolivia, Chile, or Colombia.

In order to establish ownership, Peru needed to prove that the items were excavated from

within the territorial borders of modern Peru and the court held that they did not meet that

requirement.

The Court held that it is not enough for Peru, or any foreign government, to simply show

that other antiquities, similar to the ones being claimed, were previously discovered within

its borders.

The Court also held that Peru’s national vesting law was not clearly an ownership law. The

Court stated that Peru’s patrimony laws were not clear ownership laws because they

allowed private individuals in Peru to possess and keep antiquities and that Peru never

sought to enforce its ownership rights over these pieces as long as they remained inside the

country. Therefore, the court believed that these laws were more accurately described as

export restrictions and not true ownership laws.

IMPORTANT NOTE: It is important to note that the Peru v Johnson case was decided before

the Peru – United States MOU was implemented. Therefore, following the 1997 MOU, the

United States agreed to enforce certain export restrictions requested by Peru. The issue

remains however, whether US courts would recognize Peru’s national ownership laws as

creating ownership rights in antiquities. Given that the national ownership law in Peru is not

clearly enforced (Individuals in Peru can retain ownership of antiquities and a registry which

was supposed to be implemented has not been complied with), it is likely that US courts will

still not recognize Peru’s national ownership law as meeting the McClain doctrine’s

requirements.

Additional Antiquities Cases with similar issues –

Sevsco Treasure Case in New York State Court – involved a collection of ancient Roman

silver, (valued at $200 Million USD) that was believed to be looted in the past and is

possessed by Lord Northampton of England. The Sevsco treasure was claimed by three

different countries, Lebanon, Hungary, and Croatia. All three countries had similar silver

pieces found within their territory from ancient Roman times, and all three claimed that the

treasure came from within its borders. The Court held that none of the claiming nations

could prove that the antiquities were found within the border of their country, and

therefore the antiquities remained in the possession of the defendant.

Lydian Hoard Case

In this case, the Government of Turkey was seeking to reclaim a collection of ancient

artifacts known as the ¨Lydian Hoard,¨ that were in possession of the Metropolitan Museum

of New York, and that Turkey claimed were looted from a region in Southern Turkey in the

1960´s. The MET Museum purchased the collection of artifacts between 1966 and 1968;

however the items were not put on display until 1984. In 1990 the Government of Turkey

filed a claim for replevin, arguing that the artifacts were illegally excavated and exported out

of Turkey, and that under Turkish patrimony law, they are cultural property that belongs to

the nation.

After years of litigation, Turkey and the MET settled the case out of court and the museum

agreed to return the collection to Turkey. One of the critical issues was whether Turkey

could prove that the artifacts were in fact from Turkey and were looted from the region that

Turkey claimed. Turkey was able to provide testimony of local villagers who during that

period of time had committed looting in the region where the treasures came from. It is

unknown whether this testimony would have been sufficient for Turkey to win its claim since

the case was ultimately settled out of court and there was never a final court decision.

Nonetheless, it is clear that the testimony of the villagers was one of the critical factors that

led the Museum to recognize Turkey´s point of view and agree to a settlement.

This case demonstrates one of the hurdles in looting cases: that it is very difficult to establish

the identity of items because by their nature, there was never an opportunity to register

them. In the absence of proof in the form of an inventory; other types of evidence such as

testimony from villagers, local police reports, etc., can be helpful in trying to establish the

identity of the items, as well as the time and place from where they were looted.

EXPORT LAWS and FORFEITURE ACTIONS

In the preceding section, we reviewed the civil law action of replevin for a foreign

government to claim ownership over antiquities.

As demonstrated, in a civil action to reclaim property, the foreign government needs to

prove ownership; however this presents difficult issues and hurdles for foreign governments

to overcome.

The United States also utilizes Export Laws and Forfeiture Laws as a means to cooperate with

foreign government in order to prevent and combat illicit trafficking of antiquities. For

example, customs laws and special bilateral agreements (such as the Peru-US Memorandum

of Understanding) entered into by the United States after the signing of the UNESCO Treaty

allow the United States Government to enforce export restrictions of foreign governments,

without getting into the issue of whether patrimony laws vest ownership.

UNESCO TREATY

In 1970, the United Nations agency UNESCO adopted the Convention on the Means of

Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural

Property.

The Convention called upon signatory countries to cooperate to prevent trafficking in works

of art or other items that could be considered part of a country’s cultural heritage.

Participating countries were required to pass national laws to combat illicit trafficking of art

and to assist other nations who have requested help in recovering lost or stolen artifacts.

CULTURAL PROPERTY IMPLEMENTATION ACT (CPIA)

The CPIA is the United States Law passed by the United States Congress that implements the

1970 UNESCO Convention. The official name of the act is the Convention on Cultural

Property Implementation Act, 19 U.S.C. §§ 2601-2613.

The United States, in its legislation, adopted only two sections of the UNESCO Convention —

Article 7(b), and Article 9.

Article 7(b): deals with stolen cultural property. It requires nations to prohibit the import of

stolen cultural property. The CPIA implements this Article by giving the United States

Customs Service the power to seize such stolen cultural objects at the border. According to

both Article 7(b) and the CPIA, ‘stolen cultural property’ is defined as stolen objects that had

been inventoried as part of the collection of a museum, religious or other secular institution.

Therefore Article 7(b) and CPIA’s definition of “stolen property” is a narrow definition limited

to items that were inventoried as part of a public collection, and does not include newly

discovered antiquities that have never been inventoried.

Article 9: Calls on States Parties to join in a concerted effort to prevent the import of looted

archaeological and ethnographic objects.

The CPIA implemented Article 9 by establishing a procedure by which other nations could

request the United States to impose import controls on certain categories of archaeological

and ethnographic objects.

Thus, the CPIA gave the US Government authority to enter into special bilateral treaty

agreements with Art rich countries in order to enforce the export laws of those countries.

For example, the United States Peru Memorandum of Understanding is a bilateral treaty that

the United States entered into with Peru in 1997.

PERU-US MEMORANDUM OF UNDERSTANDING

Signed in 1997 and renewable every five years, The MOU restricts the importation of

Pre-Colombian archaeological artifacts dating from approximately 12,000 B.C. to

approximately 1532 A.D., including: textile and feather objects, metal figurines,

weapons, jewelry, ceramic vessels, figurines, beads; and artifacts made of bone, straw,

wood, and cane; with special attention paid to artifacts of the Moche civilization from

the Sipán region in northern Peru. The MOU also restricts the importation of Colonial

period artifacts and ethnological material, including ecclesiastical clothing, paintings,

sculptures, and wood and metal artifacts directly related to Peru’s Pre-Columbian past,

as well as objects used for religious evangelism among the indigenous peoples.1

1 IFAR.org – Country Summary for Peru

The Special Bilateral Agreements allow the foreign government to request import controls

on certain categories of archaeological and ethnographic objects and require that for any

designated objects to enter the United States, those objects must be accompanied by an

export license or must have left the country of origin before the effective date of the import

controls.

The United States Customs will enforce these export controls of the foreign country, even

without proof that the country “owns” the object according to its patrimony laws (the

ownership issue discussed in the sections above)

Once a cultural object is found in violation of the CPIA or Special Bilateral Treaties, the

United States government will carry out a forfeiture action and seize the item and return it

to the country of origin.

Before describing this process, it is important to note which government agencies are

involved in the process. The United States Department of State is in charge of negotiating

and managing the Special Bilateral Treaties negotiated under the CPIA. The United States

Immigration and Customs Enforcement Agency (ICE), which is part of the Department of

Homeland Security, is in charge of investigating and enforcing violations of the CPIA and the

special bilateral treaties. (Note that the FBI is also involved in investigating cases of stolen

art, however ICE specifically investigates violations of customs and export laws, such as the

CPIA)

The CPIA, Special Bilateral Treaties authorized by the CPIA (such as the Peru MOU), and

other customs laws allow ICE to seize cultural artifacts that are suspected of being stolen or

illegally imported.

FORFEITURE and SEIZURE

Forfeiture is when a party is compelled to give up property under legal authority. The

action of taking the property is called a “Seizure.”

There are two types of forfeiture, criminal forfeiture and civil forfeiture.

Criminal Forfeiture is when the government seizes property as part of a criminal

prosecution. In addition to prosecuting an individual for a crime, a prosecutor can file a

forfeiture count for property that was involved in the crime. To suffer the penalty of

forfeiture, the defendant must first be found guilty of the underlying offense that he is being

charged with, such as drug trafficking or dealing in stolen property. The standard for

winning a criminal forfeiture is very high, because under United States law, all criminal

defendants are presumed innocent and the Government has the burden of convicting a

defendant beyond a reasonable doubt. If the government proves the defendant’s guilt, and

the prosecutor filed a count for forfeiture, then the court can authorize a seizure of the

defendant’s property.

Civil forfeiture is a proceeding taken against only the “property” itself, and not the

defendant who has an interest in the property. Unlike criminal forfeiture, in a civil

forfeiture, the government does not have to prove that the defendant is guilty of a crime. In

a civil forfeiture, the government may seize property from anyone once it has probable

cause to believe that the property is contraband, proceeds of a crime, or used or intended to

be used in the commission of a crime.

The evidentiary standard of probable cause is the weakest of all evidentiary burdens and

requires only a fair probability that property is forfeitable. This is in contrast to a criminal

forfeiture, which requires proof beyond a reasonable doubt that the defendant is guilty.

Once the government meets its burden of showing probable cause to seize and forfeit the

property (probable cause that the property was part of a crime, or violated export

regulations, for example), then the burden shifts to the defendant to show that the property

is “innocent” and was not connected to any crime or export violation.

Forfeiture Under the CPIA

The CPIA is a civil customs statute. The focus of the government’s investigation and

potential seizure is the cultural item itself and not criminal prosecution of a defendant

(although someone who imports or possesses property that violates the CPIA may be

prosecuted for other criminal offenses involving the same property)

Under the CPIA and the Special Bilateral Agreements, the government can forfeit and seize

illegally imported cultural items through the use of civil forfeiture. CPIA authorized

forfeiture and seizure can be done both under the part of the CPIA that corresponds with

Article 7(b) of the UNESCO Convention, and under the Special Bilateral Agreements,

corresponding with Article 9 of the Convention.

The CPIA provision corresponding with 7(b) allows the seizure and repatriation of cultural

property stolen from monuments, museums, and institutions. Under this provision, the

government can seize an item if it shows probable cause that the object was stolen from a

museum, monument, or public collection, and that it was stolen after the 1983 date of

passage of the CPIA.

Special Bilateral Agreements: The CPIA provides for the forfeiture of designated

archeological and ethnological materials imported into the United States from a country

with which the U.S. has a bilateral agreement pursuant to the Convention, if the object is

imported without proper certification or documentation testifying to the legality of the

export.

In order to seize an object under the Special Bilateral Agreements, the government must

show probable cause that the cultural objects in question are items described in the

Agreements and that the item left the foreign country after the date the agreement was

signed.

OTHER TYPES OF FORFEITURE CASES

Cultural art and antiquities can also be seized by the government when they are found to

violate United States Federal Statutes against Smuggling of Goods and Statutes against

making False Statements for the Entry of Goods.

Title 18 U.S.C. § 545, Smuggling Goods into the United States

This federal law makes it a crime subject to a fine, imprisonment up to five years, or both, to

knowingly and willfully, with intent to defraud the United States, smuggle property into the

United States. The property in question has to be against the law.

Merchandise introduced into the United States in violation of this section…shall be forfeited

to the United States. Thus items found to be smuggled into the United States can be

forfeited under this law.

Title 18 U.S.C. § 542, Entry of goods by means of false statements

This federal law makes it a crime to import goods by making false statements when declaring

the goods. The false statements must have a “material” affect on the importation process.

This statute is often utilized in coordination with 18 U.S.C. § 545 because when one imports

goods by means of false statements under Section 542, it subjects those goods to forfeiture

under Section 545.

Civil Forfeiture as a Means to Return Cultural Objects: Prosecutors can use civil forfeiture

under these statutes as a valuable tool to seize and return cultural objects to foreign

countries, when such objects were illegally smuggled into the United States, or were

imported by means of false statements.

The use of civil forfeiture laws in the context of cultural objects can be seen in a famous

case,

The United States vs. An Antique Platter of Gold.

In this highly-publicized case, a 4th Century BC (AC) Gold Phiale Platter from Sicily, Italy, was

purchased by New York collector Michael Steinhardt, from an art dealer in Switzerland.

When the platter was imported into the United States, its value and country of origin were

misstated on the customs forms. The country of origin was listed as Switzerland, not Italy.

In 1995, the Italian government declared the work stolen property under its patrimony laws

and sought its return. The U.S. government seized the work from Steinhardt and successfully

brought an action for civil forfeiture. The New York Federal District Court ruled that the work

had been illegally imported because Haber had declared to U.S. Customs that the work’s

country of origin was Switzerland, and not Italy. The court found that falsely listing the

work’s country of origin as Switzerland materially affected the legality of the importation

process and thus violated 18 U.S.C. § 542. The items was seized under Section 545 and

returned to Italy.

Note that the civil forfeiture in this case focused on the status of the item as being illegally

imported, and thus subject to forfeiture and return to country of origin. Thus the court did

not have address the Italian government’s claim that the Phiale was the property of the

Italian government because its national patrimony law vested ownership in the Italian

government.

Determining the ownership of the item would be done via the court applying the McClain

doctrine. Although the court did not have to address this issue because the export violation

was enough to return the item, by finding that the misstatement of the country of origin on

the customs form was a material misstatement, (listing Switzerland, which has liberal

property ownership laws, instead of Italy, where there is a national patrimony law claiming

state ownership) the Court was indirectly recognizing the importance of Italy’s patrimony

law in determining ownership.

USE OF THE NATIONAL STOLEN PROPERTY ACT IN CASES INVOLVING ATIQUITIES

Another tool the United States Government has utilized in the context of trafficking of

antiquities is the prosecution individuals accused of dealing in stolen art. While this notion

does not sound controversial, the use of the National Stolen Property Act Statute as applied

to stolen antiquities owned by foreign nations has generated controversy. That is because

critics say the US government is prosecuting individuals on the basis of a foreign law. The

counter argument, which is supported by the McClain and Schultz (see below) decisions, is

that the United States is enforcing the National Stolen Property Act, which makes it illegal to

transport and possess stolen goods. The use of foreign law is only to determine the status of

the goods that are being transported and possessed.

National Stolen Property Act, 18 U.S.C. § 2314

The National Stolen Property Act, is a criminal statute making trade, receipt, and

possession of stolen goods in interstate commerce valued at more than $ 5,000, a

criminal violation subject to a fine, up to ten years in prison, or both. Thus the National

Stolen Property makes it a crime to transport stolen property in excess of $5,000,

knowing that the property was stolen.

The NSPA was enacted in 1930, and was originally meant to deal with the transporting of

stolen cars. However, beginning in the 1970s, prosecutors used the statute to prosecute

individuals dealing with antiquities from foreign countries, on the theory that the antiquities

could be classified as “stolen goods”, that were taken from their true owner, the country

where they came from.

Thus the use of the NSPA in the context of antiquities, turns on the issue of whether

antiquities that were removed from a foreign country without permission are considered to

be stolen property for the purpose of the Act. To recognize the antiquities as “stolen”

means to recognize the foreign patrimony laws as vesting ownership of such patrimony in

the that nations government. Defendants and critics of the use of the NSPA in the

antiquities context argue that in doing so, the United States would be prosecuting

individuals under foreign law instead of US law.

The answer to these critics is that the United States is not enforcing foreign law instead of

US law because the Statute being enforced is the National Stolen Property Act. The NSPA

defines the element of theft and all the other elements that the government must prove in

order to be successful in the prosecution; however, the foreign law is merely being used to

determine the ownership of the property in question. Therefore, the issue turns on whether

a nation´s patrimony law creates ownership interest in antiquities such that when they are

taken from that nation, they shall be considered stolen.

For example, the McClain case was a criminal case where the defendants were charged

under the NSPA. As described above, the court in McClain went through an analysis to

determine when a court would recognize a foreign patrimony law (in this case Mexico´s

patrimony law) as creating ownership rights that would be recognized in court.

That issue also arose in a more recent and very important case known as United States v

Schultz

United States v Schultz (2002)

At issue in this case was the validity of recognizing Egypt’s patrimony law in a prosecution

under the National Stolen Property Act. Frederick Schultz, a New York antiquities dealer,

was accused of conspiracy to deal in antiquities alleged to have been stolen in violation of

Egyptian law. In 1983 Egypt enacted Law 117, a patrimony law under which all antiquities

became the property of the State and trade in antiquities was prohibited and punishable by

a prison term and a fine.

Frederick Schultz was an antiquities dealer and a former president of the National

Association of Dealers in Ancient, Oriental and Primitive Art. His co-conspirator, in England,

Jonathan Tokeley-Parry, provided him with photographs and descriptions of the Egyptian

objects and arranged for them to be smuggled out of Egypt and shipped to Schultz at his

New York gallery. In order to get the objects out of Egypt, Tokeley-Parry disguised the

objects as cheap tourist souvenirs. Schultz and Tokeley-Parry falsified documents to create a

fake provenance indicating that the objects were part of a collection that had been in

England since the 1920’s, long before the 1983 Egyptian law.

The court found that “the NSPA applies to property that is stolen from a foreign

government, where that government asserts actual ownership of the property pursuant to a

valid patrimony law.”

The court went through a rigorous analysis of the Egyptian Patrimony law to show that it

was a clear unambiguous ownership law. (This is one of the requirements of the McClain

Doctrine – the foreign patrimony law must be a clear ownership law and not merely an

export law). The Court concluded that the Egyptian law was a true ownership law because

of its clear language, and evidence that it was actively enforced by the Egyptian government

within Egypt, including the prosecution of individuals for violating the law.

Shultz was convicted by a jury and sentenced to 33 months in Prison, and the cultural items

were returned to Egypt.

Forfeiture and Seizure under the NSPA

If the government is successful in its criminal conviction of the defendant under the NSPA,

then the act provides for a criminal seizure of the property as well. As noted earlier, in order

to achieve a criminal forfeiture, the government needs to first convict the defendant of the

underlying crime – in the case of the NSPA – transport in stolen goods.

LESSONS OF MCCLAIN AND SCHULTZ DECISIONS

The Schultz decision was a critically important case because it took place in the Federal

District Court in New York, the art capital of the United States, and therefore sets a

precedent for future court decisions in the region. The Shultz decision reinforces the

principle of the McClain Doctrine, that US Courts will honor foreign laws that vest ownership

in cultural property, so long as certain conditions are met. The decision also sends a strong

signal that Americans can be prosecuted criminally for failing to comply with foreign cultural

patrimony laws.

The McClain Doctrine and the Schultz Decision also make clear that foreign nations that

want to further protect their patrimony through use of the US Court system need to ensure

that their patrimony laws, especially those that vest ownership of patrimony in the nation,

should be written clearly and unambiguously and need to be domestically enforced within

the country as well.

CONCLUSIONS

This memorandum demonstrates the variety of different ways in which a cultural patrimony

case can arise in the US legal system. For example, the Peru v Johnson case, the Sevsco

Treasure case, and the Turkish Lydian Hoard case were all Civil Replevin actions, where the

country of origin claimed to be the original owner of the property and went to court, just as

any individual property owner would, in order to reclaim their stolen property. The

Steinhardt “Antique Platter of Gold case,” was an example of the use of civil forfeiture,

where the U.S. Government seized and forfeited stolen property and returned it to the

country of origin. The McClain and Shultz cases were criminal cases where the defendant

was charged with dealing (or conspiring to deal) in stolen property. (The property having

been stolen from the original owner, the country of origin)

In recent years, there has been a trend in cultural property cases where source nations and

museums and dealers have sought to avoid litigation by resolving disputes through

cooperative agreements. As a result of the Schultz decision and other influential court cases

and settlements, the emerging trend is that museums and collectors no longer have carte

blanche to obtain art and antiquities that was likely looted or stolen from its country of

origin.

The field of cultural patrimony law can be viewed from different levels: there is the level of

international relations, including treaties such as UNESCO, as well as and bilateral

agreements between nations. There is the level of the court systems, where cases are

litigated according to the laws and evidentiary procedures of the local countries. And there

is the level of direct contacts and negotiated agreements between the impacted countries

and the individual parties, (museums, dealers, and collectors, etc.) With each new court

decision, out of court agreement, or new treaty signed between countries, the law in the

field of cultural patrimony gradually evolves.

From the perspective of the United States, Peru has very long and active history in the

cultural patrimony law field, dating back to the Peru v. Johnson decision (which was a very

difficult outcome for Peru) and then being one of the first nations to obtain a Memorandum

of Understanding with the United States under the Cultural Property Implementation Act, to

its recent success in negotiations with Yale University in the Machu Picchu case.

In many ways, Peru embodies the evolution and maturing of the cultural property field and

its gradual transition (in the United States at least) from one of confrontation and litigation

between source countries and US museums, dealers and collectors to a more collaborative

present day where American museums, at least in principle, disclaim interest in acquiring

ancient objects that lack a provenance at least back to 1970 (date of UNESCO Convention);

where there have been numerous voluntary returns (accompanied by settlements that may

include long-term loans for exhibition in the United States) and where source countries with

MOU’s are required to demonstrate their efforts to share their culture.

In instances where the court system remains the only viable channel for recuperating pieces,

source countries still face significant legal hurdles in complying with the judicial and

procedural requirements of the local countries court systems. However, as source counties

gain a better understanding of the legal requirements of the court systems in market

countries such as the United States, they can and should simultaneously take greater steps

to solidify efforts within their own countries to protect cultural patrimony and prevent its

illegal exportation, and to improve efforts to gather and provide the evidence needed to

successfully recuperate items that have already left the country illegally.

The process of understanding and synchronizing the legal systems of both market and

source countries should be done in parallel with, and thus complement, efforts in the

diplomatic field (via treaty law and international relations).

i The court found that only Mexico’s most recent patrimony law (passed in 1972) was sufficiently

clear in vesting ownership of all antiquities in the state. Because it was unclear if the antiquities the

defendants were selling were excavated before or after 1972, the court overturned the convictions

for dealing in stolen property. However, the court did affirm the defendants convictions for

continuing to conspire to deal in stolen antiquities.