Feds vs. Sotheby’s: Legal Tangle over ‘Looted’ Khmer Statue Continues

The feet of the disputed statue were left behind when it was taken from the ruins of the Prasat Chen Temple, 80 miles east of Angkor Wat in Cambodia. The other set of feet belong to a statue now in the Norton Simon Museum in Pasadena, experts say.

In Friday’s LA Times, Jason reports on the federal lawsuit (case #12cv2600) seeking the return of a 10th Century Khmer statue now held at Sotheby’s.

Here’s a late-breaking update: Federal authorities expected to seize the statue from Sotheby’s on Thursday afternoon. But the seizure order was delayed by a late night legal spat between the US Attorney’s office and attorneys for Sotheby’s, authorities say.

UPDATE: Judge George B. Daniels issued a judicial restraining order late Thursday afternoon, prohibiting Sotheby’s from selling, transferring or otherwise disposing of or removing the statue from its current location. The parties will convene again at 10:30 on April 12th.

In dueling letters faxed to District Court Judge George B. Daniels, the two parties traded barbs about their respective legal arguments. The letters offer a preview of a legal battle that could have broad implications for repatriation efforts by source countries, which often rely on indirect evidence of looting to support their claims.

We’ve posted the complete letters below. Here is a summary of the arguments:

Sotheby’s makes no mention of the damaging internal emails cited in the governement complaint. Instead, it argues against the statue’s seizure saying it is based on the government’s “novel reading of ancient Cambodian law” and “the tenuous ‘belief’ of an expert who theorizes (from exceedingly modest evidence) that the statue was looted at some time after Cambodia declared national ownership of its antiquities.”

A looter's pit found during a recent survey of the archaeological site of Koh Ker.

The auction house goes on to point out what it calls “major legal and factual holes” in the government’s case. The evidence that the statue was taken from Cambodia recently are photographs and surveys of Koh Ker taken in the 1950s and 1960s, but those photos and surveys do not show or mention the statue in question, Sotheby’s points out. Cambodia’s 1900 patrimony law cited by the government was only discovered in rediscovered by American lawyers in recent months, and is not listed on UNESCO’s database of national patrimony laws, Sotheby’s also notes.

Finally, Sotheby’s points to the recent dismissal of a government suit seeking the seizure of the Ka-Nefer-Nefer mummy mask at the St. Louis Museum of Art on behalf of Egypt, which claimed the mask had been stolen from a government storage facility in the 1960s. In that case, the court ruled that the “Government cannot rest on its laurels and believe that it can initiate a [suit] on the basis of one bold assertion.”

In response to Sotheby’s claims, Assistant US Attorney Sharon Levin sent her own fax to Judge Daniels, citing the federal rules of civil procedure to argue the government has probable cause for the seizure.

Dougald O'Reilly, founder of HeritageWatchInternational.org, surveys looting at an archaeological site in 2006.

Levin calls Sotheby’s request to maintain possession of the property “inappropriate” given that “Sotheby’s marketed and attempted to sell the defendant property for more than a year after being informed by its own expert that the defendant property had been stolen from the Prasat Chen temple. Given Sotheby’s own significant role in the offenses on which this forfeiture action is based, they are not an appropriate independent third party for the Government to entrust with the property during the pendency of the action.”

The government suit was brought at the behest of the Cambodian government, Levin states. And Sotheby’s argument that the statue was not stolen “is at odds wit the conclusions reached by their own expert,” Levin argues, citing the internal emails in which the expert advises the auction house that the statue was “definitely stolen.” Further discussion of the merits of the government’s case should be saved for future hearings.

We’re interested to hear from many of the lawyers who read this blog what their take is on the respective arguments. Feel free to weigh in via the comments below.