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United States v. Pre-Columbian Artifacts and the Republic of Guatemala: Expansion of National Stolen Property Act in its Application to Illegally Exported Cultural Property
Published online by Cambridge University Press: 17 September 2010
Extract
One of the major issues confronting U. S. courts in international cultural property cases is the significance of foreign export restriction violations. This is a particularly sensitive issue for museums in art purchasing nations since aggressive support of the view that export restriction violation is theft could result in the return of much of a museum's collection. In fact, Thomas Hoving, past director of New York's Metropolitan Museum of Art stated, “almost every antiquity that has arrived in America in the past ten to twenty years has broken the laws of the country from which it came.”
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References
Notes
1 See Hoving, Thomas, Making the Mummies Dance: Inside the Metropolitan Museum of Art (1993).Google Scholar
2 18 USC §§ 2314–15 (1988 & Supp II 1990).
3 18 USC §§ 2314–15 (1988 & Supp II 1990). Section 2314 concerns the transporation, transfer, or transmission of stolen goods, securities, or money, while § 2315 speaks to the receipt, possession or sale of such items.
4 See United Slates v Sheridan, 329 US 379, 384 (1946).
5 United States v Pre-Columbian Artifacts and the Republic of Guatemala, 845 F. Supp 544 (N D III. 1993).
6 Ibid at 546.
7 Ibid at 546; Fed R Civ P 12(b)(6).
8 797 F Supp 64, 66 (D Mass 1992); Fed R Civ P 44.1.
9 18 USC § 1961 et seq.
10 797 F Supp at 66.
11 Congressional Law for the Protection and Maintenance of the Monumbents, Archaeological, Historical, Artistic Objects and Handicrafts. Art. 21.
12 495F.2d 1154 (9th Cir 1974).
13 The trial judge instructed the jury that “stolen” meant, “acquired, or possessed, as a result of some wrongful or dishonest act or taking whereby a person willfully obtains or retains possession of preoperty without or beyond any permission given, and with the intent to deprive the owner of the benefit of ownership.” Ibid at 1156.
14 United States v McClain, 545 F.2d 988 (5th Cir 1997) [hereinafter McClain I] United States v McClain, 593 F.2d 658 (5th Cir 1979), cert den, 444 US 918 (1979) [hereinafter McClain II.]
15 The smugglers were initially convicted of sonspiracy and vilation of the NSPA. On appeal, the court remanded the case to the trial court because of improper jury instructions. The defendants were again convicted and appealed a second time (McClain II). The appeals court affirmed the conspiracy conviction, but reversed the conviction for NSPA vilation; 593 F.2d at 658.
16 McClain I, at 994.
17 Ibid, at 994; The court cited Missouri v Holland, 252 US 416, 434 for the phrase, “possession is the beginning of ownership.”.
18 Ibidat 1002–03.
19 593 F.2d at 671.
20 See Church, , ‘Evaluating the Effectiveness of Foregin Laws on national Ownership of Cultural Property in US Courts’, 30 Columbia Journal of Transnational Law 179, 199 (1992)Google Scholar.
21 See Borodkin, , ‘The Economics of Antiquities Looting and a Proposed Legal Alternative’, 95 Columbia Law Review 304, at 393 (1995)CrossRefGoogle Scholar;. ‘The Continuing Development of United States Policy Concerning the lntemation Movement of Cultural Property’, 4 Dickinson Journal of International Law 89, at 107 (1985).
22 See Stat. Inst. 1981 No 1641 (Great Britain); Bersin, ‘The Protection of Cultural Property and the Promotion of International Trade in Art’, 13 NYL Sch J Int 'l & Comp L 125, 150.
23 Government of Peru v Johnson, 720 F Supp 810 (C D Cal 1989).
24 Just four months earlier, a Supreme Decree of the President of Peru, dated February 27, 1985, had proclaime dthat Pre-Hispanic artistic objects could not be removed from the country, but did not forbid private ownership. Ibid at 814.
25 Ibid at 814.
26 See Note 9 above.
27 845 F Supp at 546.
28 McClain I, 545 F.2d at 995.
29 McClain II, 593 F.2d at 664.
30 In sharp contrast to this outcome, a British court denied New Zealand's claim for the return of a Maori carving in violation of export restrictions. In Ortiz v. New Zealand, I Q. B. 349 (1982), rev'd 3 W. L. R. 570 (C. A. 1982), app. dismissed 2 W. L. R. 809 (H. L.1983). The British court refused to enforce New Zealand's export violation forfeiture provisions, stating that British courts would not enforce a foreign “public” law and that New Zealand had no property right which could be enforced in England since title had not vested prior to export.
31 In 1983 and again in 1985 bills to establish a Cultural Property Repose Act were introduced in the U. S. Senate and House of Representatives. See S. 311, 98th Cong., 2d Sess., 129 Cong. Rec. 1144 (1983); H. R. 1798, 98th Con., 2d Sess., 129 Cong. Rec. 3616 (1983); S. 1523, 99th Cong., 1st Sess., 131 Cong. Rec. 20,948 (1985); H. R. 2389, 99th Cong., 1st Sess., 131 Cong. Rec. 12,403 (1985). Although hearings were held, none of the bills were reported out of committee. The purpose of the bills was to severely limit the time period in which foreign nations could bring actions for the return of illegally exported cultural property.