Tag Archives: National Stolen Property Act

Looted Antiquities at American Museums: An On-Going Crime, law professor argues

In January 2008, more than one hundred federal agents raided four Southern California museums. They seized scores of Southeast Asian antiquities that investigators said had been looted and illegally smuggled into Los Angeles before being donated at inflated values to the museums.

Since then, nothing much has happened in the case. But one legal expert is warning that the case represents a ticking time bomb for American museums, whose antiquities collections are still filled with looted antiquities.

If the raids result in convictions, the legal fallout could be devastating, argues Stephen K. Urice, a University of Miami law professor and one of the country’s foremost legal minds on cultural property.

Stephen K. Urice

“Continued possession of virtually all unprovenanced antiquities in public museums within the court’s jurisdiction would suddenly become actionable under the [National Stolen Property Act], and museums would be obligated to divest themselves of those collections promptly,” Urice writes. “Failure to do so would expose the antiquities to civil seizure and forfeiture proceedings, and the museums’ board and staff members to criminal liability.”

This doomsday scenario comes not from the alarmist fringes in the debate over antiquities but an avowed centrist. Urice is a former museum director with a PhD in archaeology, and was the founder of the University of Pennsylvania’s cultural law program. He has earned respect from archaeologists and museums alike for his dispassionate, middle-of-the-road analyses of museum policies and cultural property statutes.

That’s why Urice’s 39-page article in the Summer 2010 issue of the New Mexico Law Review is so striking. His analysis, now bubbling up in cultural circles, is too involved to present in full here. But in essence, it predicts a doomsday scenario based on a little noticed wrinkle in the NSPA, the key U.S. criminal law in antiquities looting cases.

LACMA Director Michael Govan asks federal agents to let him into the museum on the morning of the raid

In the 1977 McClain case, in which five Texas dealers were convicted of smuggling looted Mexican artifacts, prosecutors successfully asserted the antiquities were “stolen property” under US law if they were exported illegally from a foreign country with an enforced cultural property law that gives the government rightful owner of such artifacts. (According to the UNESCO Database of National Cultural Heritage Laws, 180 countries have passed one or more such statutes ).

Urice reasons that this interpretation is easily extended to most museum antiquities collections, where the bulk of objects could be considered contraband because they lack provenance (ownership history) and valid export licenses.

Museums have believed that the statute of limitations would protect them from such claims. But Urice notes that a 1986 change in the NSPA added possession of such objects as a crime. Since possession is an on-going act, Urice writes, “even in situations where the museum had taken possession of an antiquity decades ago, there would be no statute of limitations defense.”

This hasn’t come up in past antiquities cases since prosecutors went after collectors or dealers. The Southern California raids, however, specifically targeted museums, which under McClain arguably possess stolen property. Urice argues that a successful conviction in the case would trigger a chain reaction, forcing other museums in the court district (such as the Getty) to disgorge their unprovenanced artifacts or have their officers face criminal indictment.

In Urice’s view, this is an unacceptable – and unintended — outcome of the law that would strip American museums of an important teaching tool. What to do?

Urice suggests several remedies. Among them is a law exempting museums from the potential fallout of Southern California case and other antiquities claims under the NSPA. A second one is to replace the NSPA with a new law with input from archaeologists and collectors — a likely bitter and tortuous process.

One question not addressed in the article: Are Urice’s warnings a present-day reality? After all, federal courts in New York and Texas have both found the McClain Doctrine to be the ruling precedent, making possession of looted antiquities an on-going federal crime. In order to seize the objects, the government would only need to establish probable cause that the objects were illegally exported — the burden would be on the museum to prove legal export, something that can’t be done for most antiquities. All that’s missing is a US Attorney interested in making such a bold case.

Whatever the answer, Urice’s article makes clear the legal struggle over looted antiquities did not end with the Getty scandal.

If the Southern California case moves forward, the worse may be yet to come.

HOT DOC: Urice on Unprovenanced Antiquities and the National Stolen Property Act

Our coverage of the January 2008 museum raids:

Raids Suggest A Deeper Network of Looted Antiquities

Federal Probe of Stolen Art Goes National

Roxanna Brown: A Passion for Art, a Perilous Pursuit (3-part series)

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Did Museum Officials Violate US Laws? Houghton on The McClain Doctrine and Crimes of Knowledge

Whenever we talk with Arthur Houghton — the Getty’s former antiquities curator who we’ll be on stage with this Saturday at the Walters Art Museum in Baltimore — he asks a provocative question: did he or any other museum official violate U.S. law while buying looted antiquities?

The short answer, of course, is that no museum official at the Getty or elsewhere has been charged with, much less convicted of, a crime under US law. The real question, then, is: might they have?

Here’s an attempt to answer that hypothetical, using Houghton’s own writings while at the Getty Museum. As part of our “Hot Docs” series, we’ve annotated and posted transcriptions of the key documents via links below.

The Getty bought the kouros in 1985 for $10 million. Today it is believed to be fake.

Getty officials certainly knew they were buying objects from an antiquities market awash in illicit material. In April 1984, while the J. Paul Getty Museum was considering the acquisition of its infamous statue of a kouros, Houghton told the Getty’s outside counsel: “Probably 95% of antiquities on the market were found in the past three years. The only way one would obtain them was if one did not ask the specific question that would elicit the specific answer about provenance that made the material unbuyable.”

Days later, Houghton elaborated on the risks of acquiring such objects in a memo on the law to museum director John Walsh. Law enforcement authorities had made clear that under their reading of current law, museum officials could be criminally liable for acquiring such objects, Houghton wrote. “No action will be taken against the importer unless it is clear that the importer acted with certain knowledge that the material had been illegally exported from a country which had appropriate national ownership in place. If Customs believes that the importer had such knowledge, they could seek criminal penalties against the importer.”

The criminal law Houghton was referring to was the National Stolen Property Act. In the 1977 case US vs. McClain, a federal appeals court in the 5th Circuit had found that buying antiquities illegally exported from a country with a national patrimony law was equivalent to buying stolen property under US law. US government officials had made clear that this “McClain doctrine” could be applied well beyond the 5th Circuit. In effect, there was no difference between buying a looted antiquity and a hot car. The government could seize the stolen property and criminally charge those who imported it, Houghton wrote.

At the time, the Getty was buying such objects at a breakneck clip. As Houghton wrote a month later to deputy director Deborah Gribbon, “No other department of ancient art has an acquisition program as intense as ours nor one which, if it is to be maintained, requires such frequent contact with market sources.” In fact, the Getty was buying objects far faster that its staff could document them. “Some 30% of the collection has not been photographed, a significant number have no accession number, and there is no file by subject matter or chronological order to help find things,” Houghton wrote.

Harold Williams, CEO of the J. Paul Getty Trust

Word of the Getty’s potential legal exposure made its way to Harold Williams, the CEO of the Getty Trust and a lawyer who had run the SEC. Williams wrote to Walsh about the troubling rumors he had heard about the antiquities market: “Indeed, much of the conversation is to the effect that 90% of the objects on the market are presumed to have been recently come out of Italy or Greece.” Williams wanted answers, and Walsh punted to his “ethical tutor” Houghton, who was asked to explain how the museum could continue to acquire undocumented antiquities under such conditions.

John Walsh, Getty Museum Director

Houghton’s answer came in the form of another memo, this one entitled “Ethics and the Acquisition of Antiquities.” It lays out the two views on collecting undocumented antiquities: those of archaeologists, who favor restrictions, and those of curators, who feel a “special obligation” to acquire objects. In the end, Houghton concludes that the Getty is justified in the acquisition of undocumented antiquities because it is better prepared that most museums to protect, conserve and display these objects.

But how to navigate the law and the McClain Doctrine, which suggested such acquisitions could violate US law? Houghton’s solution was “optical due diligence.” In essence, the Getty would create the appearance of propriety and high ethical standards while buying what it wanted, being careful to avoid the “certain knowledge” of an object’s illicit origins that could land a museum official in jail.

Cult Statue of a Goddess (Aphrodite)

Houghton resigned from his post in 1986, but his rationale for continuing to collect undocumented antiquities became the basis for the Getty’s new acquisition policy the following year. That policy change allowed the Getty to buy a statue of Aphrodite despite clear signs it had been recently looted from Southern Italy.

Did Getty museum officials have the “certain knowledge” about the Aphrodite required for criminal charges under the McClain Doctrine?

Walsh’s handwritten notes from a meeting with Williams that September would suggest they did: “We know it’s stolen…Symes [the dealer offering the Aphrodite] a fence.”

Today, both men claim the conversation was hypothetical, not about the Aphrodite. Would that defense have held up in criminal court? Thanks to the statute of limitations, we’ll never know.

We look forward to seeing Arthur again on Sat, October 29th at the Walters Museum of Art in Baltimore. Details are here.

Hot Docs: 

Houghton on the Law

Houghton on Antiquities Ethics

1987 Acquisition Policy