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Documented objects stolen from a museum may be recovered under several legal doctrines. They are clearly stolen objects; anyone handling such objects with the requisite intent or knowledge is violating the National Stolen Property Act (NSPA), 18 U.S.C. §§ 2314-2315, and the objects themselves can be seized under the Customs provisions of Title 19. The United States is a party to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property, as is also Iraq. Under the legislation by which the United States implemented the Convention, the Cultural Property Implementation Act (CPIA), 19 U.S.C. §§ 2601, 2607, the United States may seize and forfeit any stolen objects of cultural property that were documented as part of the inventory of a museum or other public institution in another State Party. Forfeiture under the CPIA does not require that the government establish that any one knew that the object was stolen and is thus an easier mechanism for the restitution of such objects than use of the NSPA or Customs statute.

Objects taken directly from archaeological sites require somewhat different treatment. Under the recent decision of United States v. Schultz, 333 F.3d 393 (2d Cir. 2003), archaeological objects whose ownership is vested in a nation (known as "patrimony laws") and that are removed from the nation without permission are "stolen" property. In Schultz, Egypt had enacted a law in 1983 vesting ownership of archaeological objects that had not yet been discovered in the nation of Egypt. When a prominent New York dealer knowingly conspired to import objects removed without permission and therefore stolen from Egypt, the dealer violated the NSPA. The court did note that "knowledge" of the "stolen" nature of the property was required (which in this context apparently means knowledge of such foreign patrimony law, which as an Egyptian antiquities dealer Schultz should have known). Under the Schultz decision, as well as similar decisions in the 5th and 9th Circuits, objects looted directly from archaeological sites are stolen property and should be recoverable. In addition, anyone who knowingly handles such objects is liable for criminal prosecution under the NSPA.

The CPIA could also provide a mechanism for such recovery, but this mechanism is so cumbersome and time-consuming. The CPIA permits other nations that are party to the 1970 UNESCO Convention to request that the United States impose import restrictions on cultural objects that have been illegally exported from their country of origin. Such a requesting nation must submit a request for a bilateral agreement to the United States with documentation demonstrating that the CPIA’s criteria are met. These criteria include:

That the nation is suffering from pillage that threatens its cultural patrimony; that the nation has taken steps consistent with the Convention to protect its own sites; that the United States’ action would be taken in concert with the actions of other nations or that the US’s action would be of benefit to prevent the looting, even if other nations are not taking similar actions; and that the US’s action would be in the interest of promoting the international exchange of cultural materials for scientific, research and cultural purposes.

Once a nation submits such a request, the request must be evaluated by the Cultural Property Advisory Committee (CPAC) that makes a recommendation to the President as to whether to negotiate a bilateral agreement. The CPIA also permits the US to impose import restrictions without negotiating a bilateral agreement in case of emergency or crisis situations, but only after the foreign nation has made a request for a bilateral agreement. This process generally takes at least 1-2 years, but has been known to take many years in some cases.

The CPIA bilateral treaty process has been shown to work in numerous situations where cultural property was truly threatened. You can read the somewhat dated, but extremely interesting reports on this (from an archeologists' viewpoint condemning private collecting and trade) here. (Look in the "In the News" sections, which also contain stories of arrests of "smugglers" and dealers.)

The United States has not acted under the CPIA to impose import restrictions that would prevent the import of archaeological objects from Iraqi sites because of the uncertainty of the situation in Iraq and the length of time required before a request can be prepared and considered. In response to this situation, a bill was introduced in the House in May 2003 (H.R. 2009) that would immediately impose import restrictions on illegally removed cultural materials from Iraq and that would amend the CPIA to allow the President in case of future emergency situations to impose import restrictions without need for a formal request from the foreign nation and consultation with CPAC. HR 2009 is currently in the House Ways and Means Committee.

HR 2009, like other legislation purporting to act in the interest of saving archeology, is incredibly overbroad and requires any objects over 100 years old found in Iraq to be confiscated if imported, unless the Government of Iraq certifies that the exportation of such material from Iraq was not in violation of Iraqi law. The bill subjects to seizure and forfeiture any such Iraqi material that cannot be certified as legally exported from Iraq, and requires the return to Iraq of any material forfeited under the Act.

For more legal information and resources, see the American Council for Cultural Policy.

How to speak out against import restrictions on ancient coins and HR 2009!

FAX (or e-mail) your comments to the following interested decision makers:

Senator Charles Grassley:
fax: 202-224-6020; website email form: grassley.senate.gov/webform.htm

Senator Max Baucus:
fax: 202-224-4700; website email form: baucus.senate.gov/emailmax.html

Representative William Thomas:
email: bill.Thomas@mail.house.gov; fax: 202-225-8798

Representative Charles Rangel:
fax: 202-225-0816; website: www.house.gov/rangel

Representative Phil English:
fax: 202-225-3103; website: www.house.gov/english

Representative Phil Crane:
fax: 202-225-7830; website: www.house.gov/crane

Representative Sander Levin:
fax 202-226-1033; email: slevin@mail.house.gov

Representative Jim Leach:
email: talk2jim@mail.house.gov; fax: 202-226-1278

Stephen Schaeffer, Senate Finance Committee:
fax: 202-228-0554

David Kavanaugh, House Ways and Means Committee:
fax: 202-226-0158

Miller Crouch, US State Department:
fax: 202-203-5116

Betsy Durant, US Customs:
fax:202-927-1096

Maria Kouroupas, US State Department Cultural Property:
fax 202-619-5177