Wednesday, August 2, 2017

Collectors Contest Lawless Seizure

The art law firm of Pearlstein, McCullough & Lederman LLP has brought an action to contest the seizure of an artifact on loan to the Met.  The New York Times has covered the seizure here.   Lost on the Times, however, is the concern that the NY District Attorney has lawlessly used a search warrant to seize and repatriate an artifact purchased in good faith.  

The lawyers for the collectors describe their action to quite title as follows.  

Beierwaltes v. Directorate General of Antiquities of the Lebanese Republic and the District Attorney of New York County is an important test case for the art market in general and the antiquities market in particular.

Our clients, Bill and Lynda Beierwaltes, bought an Archaic Greek marble Bull’s Head in 1996 from a London dealer who made representations about its provenance. In 2006, the Bull’s Head was exhibited publicly in Paris at a major art fair and published in a dealer’s catalogue. In 2016 the Bull’s Head was loaned to and exhibited by The Metropolitan Museum of Art. From excavation records published in Switzerland in 2005, the Museum concluded that the Bull’s Head was excavated at the Temple of Eshmun in Lebanon in the 1960s.

After Lebanon demanded restitution, the Beierwaltes filed a complaint in U.S. District Court for the Southern District of New York seeking declaratory judgment to clear title to the Bull’s Head. Although the Department of Justice declined to pursue a claim for civil forfeiture, the District Attorney of New York County seized the Bull’s Head pursuant to a search warrant and is now seeking to turn the Bull’s Head over to Lebanon. We thereafter amended our complaint to include DANY as a defendant in the federal case.

The twin actions present a number of issues that have not previously been resolved.

First, we believe that DANY’s position is ill-founded and that New York law does not provide for in rem forfeiture. DANY disagrees and believes that it can first seize and then turn over property in the absence of a criminal case.

Second, the relationship between the Beierwaltes’ suit in federal court for declaratory judgment and DANY’s procedure in New York state court for turnover is unclear. Which decision governs if the Beierwaltes prevail in federal court and DANY prevails in state court?

Third, we believe that the Beierwaltes’ title claim is meritorious: even if the Bull’s Head was stolen from Lebanon, the statute of limitations under Lebanese law has expired; Lebanon has no claim under the Convention on Cultural Property Implementation Act; there are no grounds for seizure under federal law; and New York state law supports the Beierwaltes’ claim on several grounds, including statute of limitations and laches.

The Beierwaltes are bona fide purchasers with clean hands. By contrast, for more than 50 years, Lebanon has failed take any action domestically or internationally to report any theft of the Bull’s Head, file a claim for its return or list the Bull’s Head on any publicly-accessible, international database of stolen art.

Under these circumstances, DANY’s focus on restituting the Bull’s Head to Lebanon based solely on theft would be contrary to U.S. law and policy and New York civil law. It remains to be seen whether DANY’s expansive interpretation of New York’s search and seizure law will prevail

Monday, July 31, 2017

Congressional Appropriators Hold State Department, CPAC and Source Countries Accountable

The House of Representatives has used the appropriations process to highlight the need for the State Department and the Cultural Property Advisory Committee to hold countries with MOUs with the United States accountable for spending adequate sums to protect their own cultural patrimony as a precondition for receiving continued US assistance.  For more, see here.  It's long past time for such a message to be sent.  If source countries are poor stewards for what they already have, why repatriate more objects under the misapprehension they will be properly studied, preserved and displayed?

Wednesday, July 19, 2017

Virtual CPAC Meeting on Libyan MOU Request

On July 19, 2017, the U.S. Cultural Property Advisory Committee held its first “virtual” meeting where some CPAC members and all speakers were linked via an internet based video platform.  According to my notes, at least the following CPAC members were in attendance:  (1) John Frank (Trade); (2) Karol Wight (Museum); (3) Lothar von Falkenhausen (Archeology); (4) Nancy Wilkie (Archaeology); (5) Rosemary Joyce (Archaeology); (6) Dorit Straus (Trade); (7) Adele Chatfield-Taylor (Public); and (8) Jeremy Sabloff (Public-Chair).

There were six (6) speakers:  (1) Peter Tompa (International Association of Professional Numismatists/Professional Numismatist’s Guild; (2) Sue McGovern (Association of Dealers and Collectors of Ancient and Ethnographic Art); (3) William Wright (coin collector); (5) Kate FitzGibbon (Antique Tribal Art Dealers Association) and (6) Nathan Elkins (Baylor).  Due to a technical problem, Gary Vikan (Global Heritage Alliance) did not speak.

Peter Tompa- The request is a troubling one.  Libya has no government to speak of and anything repatriated cannot be protected from the militias running the country.  To the extent any restrictions are granted, they should be limited to site specific restrictions for material identifiable as from Libya’s 5 UNESCO World Heritage Sites as well as for coins identifiable as being stolen from public and private collections.   Restrictions cannot lawfully be placed on coins because they are not of cultural significance.  Moreover, hoard evidence proves that one cannot assume coins struck in Libya in ancient times were also found there.  (For more, see here.)

Sue McGovern- Libya’s chaotic governance means that it cannot undertake self-help measures or protect what cultural patrimony it has, let alone that which may be repatriated under a MOU.  Libya has no open museums.  It should be taken to task for opposing UNESCO’s efforts to list its World Heritage sites as endangered.  In a troubling episode, one powerful militia (supported by General Sisi’s Egyptian military government) burned 6,000 books.  Under the circumstances, any MOU is a bad idea.

William Wright- Wright is a teacher at a community college in Virginia.  He became interested in the coins from Kyrene because they depict Silphium, a now extinct medicinal plant.  He uses coins in his history classes.  His students benefit from the tactile experience of handling coins.  He only buys from established dealers, but worries about the chilling effect restrictions are having on the hobby.

Kate FitzGibbon- The short comment period has disenfranchised Jewish groups which are incensed that Libya is seeking U.S. Government approval for its efforts to claim the property of expelled Jews as its own.  The request should also be denied as to Tuareg material  as most Tuaregs live outside Libya and one cannot tell recent tribal arts from early tribal arts that are the target of this MOU.

Nathan Elkins- Looting is well documented in Libya.  Restrictions should also extend to coins as for other objects.  Coins are special targets for looters.  CPAC should be wary of the misrepresentations of the lobbyists for the coin trade.  Nancy Wilkie (Archaeology) asked Elkins if metal detectors were used in Libya.  Elkins does not know for sure, but assumes so.   Dorit Straus (Trade) asked Elkins about documenting coins.  Elkins does not understand why collectors don’t document coins as he did as a collector before stopping for ethical reasons.  

No Reason for More Ill-Considered Restrictions on Coins

     Here is what I said more or less at today's CPAC meeting:       
          I am speaking on behalf of the International Association of Professional Numismatists and the Professional Numismatists Guild, which represent the small businesses of the numismatic trade.  In many ways, this hearing is a much greater test for CPAC than for ancient coin collectors.  This is a very troubling request being rushed through the system, but for what purpose? Libya has no government to speak of, much less one that can ensure that any artifacts that may be repatriated will be protected from the militias really running the country.  As such, IAPN and PNG believe this request should either be tabled pending receipt of more information, or at most treated as an emergency request with restrictions only granted for site specific material from Libya’s 5 UNESCO World Heritage Sites as well as any material—including coins—that is identifiable as being stolen from public or private collections.
            There is no reason for more ill-considered import restrictions on coins that don’t mesh with the CPIA’s requirements that restrictions only be placed on objects of “archaeological interest” of “cultural significance” “first discovered within,” and “subject to export control by” the requesting state, here Libya. 
            There is a history here which most of you probably don’t know.  For 25 years after the CPIA was passed, there were no restrictions on coins.   This should be no surprise.  Coins are items of commerce.  So, it is difficult for modern nation states to justifiably claim them as their “cultural property.”  They are probably amongst the most common of historical artifacts and are not of “cultural significance.”  They are avidly collected and traded worldwide—including in places like Libya.  It simply makes no sense to preclude Americans from importing coins where there is no real “concerted international response.”   Indeed, when the CPIA was being discussed, Mark Feldman, a high ranking State Department lawyer, represented to Congress that it was “hard … to imagine a case where we would need to deal with coins except in the most unusual circumstances.”
            In 2007, this changed with Cypriot coins.   According to the declarations of two former CPAC Members that change was made against CPAC’s recommendations.  In 2011, a federal court was asked to look at the issue, but determined that the matter was non-justiciable which is just a fancy way of saying it’s not my problem.  So, if anything, that makes the issue “your problem” all the more. 
            Why shouldn’t coins be restricted?  The CPIA only limits restrictions to objects of cultural significance.  Just because an object is of archaeological interest does not give it cultural significance.  Coins which exist in multiples lack cultural significance.  The CPIA also limits restrictions to archaeological material first discovered within and subject to the export control of the specific country, here Libya.  The hoard evidence we discuss in our paper confirms that one simply cannot safely assume Libyan coins are found at Libyan archaeological sites.
            Let me touch on some issues raised by Dr. Nathan Elkins in his papers.    First, Dr. Elkins claims that restrictions are proper for any coins that predominantly circulated in Libya.  However, this proposed test is inconsistent with the plain meaning of the CPIA that limits restrictions only to artifacts “first discovered within” and “subject to export control by” Libya.  This language makes clear that only coins actually found in Libya and hence subject to its export control can be restricted.   Second, even under Elkins’ standard, Libyan coins could not be restricted because all recorded hoards of Libyan coins are found outside Libya.  [Note, Dr. Elkins disputed this point.  My written comments and research can be found here.]  Finally, given the small number of such coins on the open market, there is no reason to believe they are “gushing out” of Libya as he claims.  If anything, the small number and modest values of such coins on the market suggest that any restrictions would not deter pillage.  Thank you on behalf of the small businesses of the numismatic trade and collectors for your consideration of our views.

Thursday, July 13, 2017

ACCG Gets Amicus Support

Six collector and trade groups have supported the Ancient Coin Collectors' Guild's appeal seeking to ensure that the due process rights of collectors are protected.  The Guild has asked the Fourth Circuit Court of Appeals to overturn an order forfeiting fifteen (15) of its coins.  

The Guild has argued that the district court could not assume away important elements of the government’s case merely because its coins were of types subject to import restrictions.  Under the Convention for Cultural Property Implementation Act, the government may only seize and forfeit archaeological and ethnological objects “first discovered within” and “subject to export control by” specific countries.  And even then, the government must make some showing that the articles left that country after the effective date of those regulations.  Here, at most, all the government showed was that the coins were of types on the “designated lists” for Cyprus and China.

The briefs of the Guild and amici can be accessed here. 

Tuesday, July 11, 2017

Comment Fatigue Can't Mask Special Interest Nature of MOU Program

Given the short (7 day) comment period over the July 4th weekend, CPO is not too surprised that there were so few comments posted on the regulations.gov website concerning a proposed MOU with Libya:  https://www.regulations.gov/document?D=DOS_FRDOC_0001-4160

After eliminating duplicates and a few unclear comments, it appears that only 19% or 7 of the commentators supported the MOU with the remaining 34 opposed in whole or part.

Four of the proponents represented group interests.  Of these, one was a University and another was an archaeological group that also is a State Department contractor.  Six trade associations or collector advocacy groups were among those opposed to any MOU in whole or in part.  Most of the individual comments came from coin collectors or dealers.

No doubt some proponents will spin these the low numbers as a lack of public opposition to any MOU.  But what really should be asked is whether the whole enterprise is really nothing more than a special interest program for archaeological groups either tied to source countries where they excavate or the State Department which funds them.  Maybe there needs to be a rethink whether scarce State Department resources should be earmarked for other programs that further our national interest or promote American business abroad.

My Personal Comment on the Proposed Libyan MOU

Here is my personal comment on the proposed Libyan MOU:

Please accept these personal comments. I have also commented on behalf of a number of organizations.

1. CPAC should view this request with skepticism. Few details have emerged that support Libya's MOU request. Moreover, this request has been rushed, with a short comment period smack in the middle of a long holiday week. This action, which can only limit the number of comments CPAC receives, in itself suggests that this request should be viewed with caution-- even if the country itself wasn't a mess as it has been since its revolution of 2011.

2. The country has 3 governments, and two antiquities authorities jockeying for position. It's not even clear which of these entities supports this request. In any case, whatever "government" Libya has, powerful militias are in the background that can break these "governments" pretty much at will.

3. There are no guarantees that any artifacts Customs sends to Libya under any MOU will be protected, much less studied and displayed. None of Libya's museums are open and what staff remains have to make do under very trying circumstances.

4. Frankly, instead of yet another round of import restrictions, the State Department, along with other international organizations, should instead focus on helping Libyan community groups protect Libya's 5 UNESCO World Heritage sites from the deprivations of Islamic fundamentalists. Ultimately, Palmyra and Nimrud suffered severe damage because local communities didn't care enough to protect them from ISIS. Let's help those locals who care about these sites protect them.

5. I do not believe that Libya and the proponents of import restrictions have made out a case for either "regular" or "emergency restrictions." Nonetheless, if CPAC feels it cannot resist bureaucratic pressure to "do something," Libya's request should be treated as an "emergency one" and restrictions limited to site specific material from Libya's endangered World Heritage Sites: (1) Kyrene; (2) Leptis Magna; (3) Sabratha; (4) Tadrat Acacus; and (5) Ghademes. (See Libya's five World Heritage sites put on List of World Heritage in Danger, (UNESCO) (July 14, 2017), available at [URL REMOVED]

6. Under no circumstances should there be restrictions placed on historical coins except those identifiable as stolen from Libyan public and private collections. Here, IAPN, PNG and ACCG have noted what hoard evidence that is available shows that "Libyan" coins are typically found outside of the confines of modern day "Libya," which would make any restrictions placed upon them contrary to governing law. Ancient Coin Collectors Guild v. U.S. Customs and Border Protection, 801 F. Supp. 2d 383, 407 n. 25 (D. Md. 2011) ("Congress only authorized the imposition of import restrictions on objects that were 'first discovered within, and [are] subject to the export control by the State Party.").

Thank you for your consideration of these comments.

Sincerely,

Peter Tompa