The Evolution of US Policy on Cultural Property Issues

Kate Fitz Gibbon is a specialist on cultural property issues and Central Asian art. She served on the Cultural Property Advisory Committee to the President from 2000-2003, and is the editor of " Who Owns the Past? Cultural Policy, Cultural Property, and the Law," to be published by Rutgers University Press in the Fall of 2005. We exerpt here a letter she recently sent to the editors of ‘Orientations’ magazine for its January 17, 2005 issue…

Kate describes here “briefly the evolution of US policy on cultural property and the legal framework that surrounds it. The underlying questions raised by recent changes in US policy for collectors and even museum professionals and trustees are guaranteed to pump adrenaline into the most sluggish arteries. “Do I have title to the objects in my collection?” and even, “Am I going to jail?”

“U.S. law and policy has historically favored the free trade of cultural property. This policy began to be modified in the 1970’s, when widespread looting of archeological sites prompted the US to enter in treaties with a number of South and Central American countries and to pass the first of several US laws that prohibited the importation of pre-Columbian antiquities.

“In 1983, after a decade of debate, Congress passed the Convention on Cultural Property Implementation Act (CPIA) in order to implement the 1970 UNESCO Convention. The CPIA became the cornerstone of a US policy designed to ameliorate crisis situations in which the cultural patrimony of a nation signatory to the UNESCO Convention was “in jeopardy.” The law created a mechanism for foreign nations to request US import restrictions on cultural objects while preserving the United States’ ability to limit the categories of restricted objects through expert review. The law covered archaeological objects of “cultural significance” that were at least two hundred and fifty years old, and objects of ethnological interest that were “important to the cultural heritage of a people because of their distinctive characteristics, comparative rarity, or contribution to the knowledge of the origins, development, or history of that people.”

“US restrictions were to be undertaken in concert with other importing nations and were conditional upon the adoption of self-help policies by the source nation. These were generally understood as regulation of internal trade in antiquities, conservation of sites and artifacts, and the policing of their own citizenry.

“Restraint was built into the law. Actions taken under the CPIA were to be “consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.” Import restrictions would be enacted only if “remedies less drastic” were not available. In addition, the CPIA created a safe harbor for cultural property that had been imported into the United States if the object had been in the United States and had been published, catalogued or exhibited for specified periods ranging, depending upon the circumstances, from three to twenty years. (It should be noted that items actually stolen from the inventory of a church, museum, archaeological site, or private collection were and will continue to be liable to seizure and restitution to the victim of the theft. In the US, stolen is stolen, and no later good faith exchange of a stolen item can legitimize a theft.)

“A Cultural Property Advisory Committee was established under the CPIA to make recommendations to the President on whether or not requests from source countries met the criteria established under the law. The committee was composed of archeologists, experts in international sales, members of the museum community, and representatives of the public interest.

“Despite its current full seating of members, the committee may not succeed in giving the Chinese request the well-informed, disinterestedly-legal approach it deserves. Like all temporary bureaucracies, the committee relies on earlier decisions to establish standards and on supporting staff for corporate memory. Past appointments to the committee have included a disproportionate number of archaeologist and public members subscribing to an extremist position. Representation of dealers has often been minimal or entirely lacking, and conflict of interest provisions were applied unequally to dealers and archaeologists. (James Lally, the well-known dealer in Asian art, was nominated some years before, but declined to pursue the post when told that he would not be able to discuss, let alone vote on issues related to his area of expertise.) During my own tenure, State Department administrative staff provided committee members only grudging access to past reports and background materials were often lacking in perspective and quality. Aside from a few hours granted for public testimony, the public is not informed on committee actions committee discussions and reports were and remain secret.

“For whatever reason, the bilateral and emergency agreements that have resulted from enactment of the CPIA have become increasingly restrictive, and included developed countries such as Italy as well as the crisis situations that law was enacted to serve. The dispersal of Chinese art objects through an active world-market, the blanket coverage sought for artifacts, and the comprehensive time frame of the Chinese request do not appear to fit well with a plain reading of the law, but neither have the circumstances underlying a number of previous requests that have come before the committee and received a positive recommendation.

“Far more chilling threats to collectors and collecting institutions may be found outside the scope of the CPIA. In the years since promulgation of the 1970 UNESCO Convention, the notion of a reasoned, cooperative policy between archaeologists and collecting institutions to preserve important antiquities and ethnographic materials from destruction or dispersal has evaporated. The art and archaeological communities have splintered under ideologically based attacks on collecting itself.

“The cultural property debate is no longer over how best to preserve and protect antiquities in source countries. For many, the real causes of heritage destruction are too big to tackle: war, extreme poverty, governmental neglect, and infrastructure development all play a far larger part than deliberate pillage for profit. Instead, the debate is primarily focused on the ethics of ownership of antiquities. The most extreme elements within this discussion view the enforcement provisions and protections of the CPIA as wholly inadequate to the goal of retaining all antiquities within source nations – yet at the same time, they encourage the implementation of agreements under the CPIA because they provide the moral grounding for an aggressive policy of seizure of imported goods by US Customs and prosecutions under US criminal laws.

“The collateral damage of the Frederick Schultz case to the reputations of legitimate dealers and collectors pales in comparison to the legal repercussions of that decision, in which a foreign law nationalizing antiquities was treated as an ownership law under the National Stolen Property Act. This decision potentially places title to thousands of objects in US museums and private collections in question and renders the safe harbor for objects long held in the United States under the Cultural Property Implementation Act meaningless. The 2003 conviction of a seventy-four year old man for attempting to sell Incan artifacts under the Archaeological Resources Protection Act, a domestic US law intended to stop the looting of Native American artifacts on Federal lands, has raised the possibility of prosecutions under a plethora of similar US state laws whose wording might be construed to cover artifacts from foreign countries. Interest groups such as the American Institute of Archaeology do not find such applications of the law far-fetched instead they have argued for stiffer penalties in sentencing and fines.

“We will never know the content of the discussions of the Cultural Property Advisory Committee, although there may eventually be an announcement of a recommendation. The details of any import restrictions, their scope and number, will be announced in the Federal Register on the date on which they are put into force. US Customs will act immediately to implement any restrictions, and will develop their own internal procedures to review entries, seize goods, and initiate prosecutions under any resulting China-US agreement. For the future, it will be up to US prosecutors to determine whether or not pre-existing Chinese ownership or patrimony laws meet the statutory requirements of the National Stolen Property Act and if cases exist under which importations previously thought to be legal ought to be challenged.

“It is time for collectors and collecting institutions to recognize that the rules have changed. They must either resign themselves to accept unworkable and ineffective measures that purport to halt the ongoing destruction of heritage through the curtailment of collecting – or they must take an active, vocal part in finding working solutions and righting the balance.

“For me, the greatest dangers posed by recent changes in US laws and public perspectives on objects of cultural heritage are not those related to issues of ownership – although these do challenge long-held understandings of private property in American society. What I find far more frightening is the casual embracing of nationalist, separatist political goals and the demands for an end to the scholarly study of unprovenanced materials. These approaches are not only politically shortsighted and numbingly anti-intellectual they deny the humanist tradition, the concept of common heritage, and the democratic values of an open American society of diverse, multi-ethnic background.

Kate Fitz Gibbon

Kate Fitz Gibbon is a specialist on cultural property issues and Central Asian art. She served on the Cultural Property Advisory Committee to the President from 2000-2003, and is the editor of" Who Owns the Past? Cultural Policy, Cultural Property, and the Law," to be published by Rutgers University Press in the Fall of 2005.

All quoted sections refer to the text of the Convention on Cultural Property Implementation Act, Public Law 97-446 [H.R. 4566], 96 Stat. 2329, approved January 12, 1983 amended by Public Law 100-204 [H.R. 1777], 101 Stat. 1331, approved December 22, 1987.

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