The War on Antiquities: United States Law and Foreign Cultural Property

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INTRODUCTION

On the morning of January 24, 2008, federal agents raided four California museums, (1) combing through their galleries, offices, storerooms, and computers in search of evidence that museum officials had knowingly acquired looted antiquities and archaeological materials. (2) According to warrants issued in the investigation, Robert Olson, an antiquities dealer living in California, allegedly led a smuggling ring that, over the course of many years, had succeeded in transporting thousands of ancient artifacts from Thailand, China, Myanmar, and Native American archaeological sites to art dealers in the United States. (3) Mr. Olson conspired with Jonathan Markell, a respected art gallery owner, to sell some of these looted antiquities to an undercover National Park Service agent posing as a collector. The undercover agent then donated the pieces to museums in exchange for inflated tax write-offs. (4) Museum officials, who had varying degrees of knowledge about the antiquities' provenance, agreed to the donations. (5)

As the culmination of a five-year undercover investigation, the raids sent shockwaves through the museum community. (6) Prior to the raids, newsworthy scandals involving high-profile collections of stolen art tended to be the result of complaints brought by foreign governments. (7) The 2008 California museum raids are therefore important not only because they mark the first major U.S.-led crackdown on museums for alleged looting, but also because they establish what may be a new level of criminal liability for museum officials under the National Stolen Property Act (8) (NSPA) and Archaeological Resources Protection Act (9) (ARPA), statutes that hold accountable those who deal in stolen property.

The use of these statutes to target art dealers and museum officials makes some observers wary, and they warn that it could lead to an increase in the black market trade of art and antiquities. (10) To others, however, the raids are a welcome change in U.S. policy. (11) These observers argue that museums that acquire looted cultural property are like any other crime network, and that the loot should be treated like contraband drugs or endangered species. (12) If in fact these raids indicate that the United States is now treating museum officials who acquire looted art and antiquities like drug traffickers, it is clear that the United States is not alone in its new approach. In October 2008, London's Metropolitan Police began cracking down on the illicit trade in Afghan antiquities, ominously cautioning that "'[i]f [the art] industry fails to heed ... warnings about the purchasing of these items, then ... officers will move on to consider specific intelligence led operations to enforce the law.'" (13) These operations, no doubt, will look something like the 2008 California museums investigation.

The use of NSPA and ARPA to prosecute individuals who buy, sell, or otherwise deal in cultural property stolen or illegally exported from a foreign state is in direct tension with the Convention on Cultural Property Implementation Act (14) (CPIA). CPIA is a statute enacted in accordance with an international treaty to which the United States is a party. (15) This Note explores how criminal liability under U.S. law for museum officials and others who acquire art, archaeological materials, and especially antiquities (16) originating in foreign nations conflicts with CPIA's treatment of foreign cultural property. Part I discusses the principle of protection of cultural property in international law and the manifestation of this principle in the United Nations Educational, Scientific and Cultural Organization's 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (17) (1970 UNESCO Convention). Part II examines the 1970 UNESCO Convention's influence on U.S. civil law and policy regarding foreign cultural property, and on the acquisitions policies of inter national and domestic museums. …