Who Owns Antiquity?: Museums and the Battle over Our Ancient Heritage [NOOK Book]

Consciously or subconsciously, archaeological interpretation and the public presentation of archaeological monuments are used to support the prestige or power of modern nation-states. -Neil Asher Silberman

For years, archaeologists have lobbied for national and international laws, treaties, and conventions to prohibit the international movement in antiquities. For many of these years, U.S. art museums that collect antiquities have opposed these attempts. The differences between archaeologists and U.S. art museums on this matter has spilled over into the public realm by way of reports in newspapers and magazines, public and university symposia, and specialist-even sensationalist-books on the topic.

At the center of the dispute is the question of unprovenanced antiquities. In conventional terms, an unprovenanced antiquity is one with modern gaps in its chain of ownership. As it pertains to the United States, since in most cases we are an importer of this kind of material, this means there is no evidence that the antiquity was exported in compliance with the export laws of its presumed country of origin (these are always modern laws, hence the qualification above, modern gaps). Archaeologists argue thatunprovenanced antiquities are almost always looted from archaeological sites or from what would become archaeological sites. But strictly speaking, since provenance is a matter of ownership and not archaeological status, and as some countries allow for the ownership of antiquities but not their export, it is possible to illegally export a legally owned, unprovenanced antiquity. (It would have to be either an excavated antiquity that could be legally owned, or a found or looted antiquity owned by someone, if not by its current owner, before the implementation of anti-looting laws.) For nationalist reasons, some countries-we will see this is the case with China-allow for the legal import and ownership of unprovenanced and even suspected looted antiquities, but not their export.

Because it can make complex matters appear simple, and attractively controversial, the public discourse around the acquisition of unprovenanced antiquities has focused largely on the legal aspect of their ownership: either they are owned legally or they aren't. This does not mean, of course, that legal disputes over ownership are easy to resolve. As is always the case in matters of law, everything turns on evidence. Is there convincing evidence that the unprovenanced antiquity was removed from its country of origin in violation of that country's laws? Indeed, is there convincing evidence that allows us to identify its country of origin? Just because an antiquity looks Roman, do we have any evidence that (1) it was unearthed within the borders of the modern state of Italy, as opposed to elsewhere in the former Roman Empire; and (2) that it was unearthed since the implementation of restrictive Italian export and ownership laws? And what would constitute convincing evidence? An eyewitness's testimony? A confession? Some kind of convincing documentation? Rarely does such evidence exist. And since unprovenanced antiquities, like all works of art in the collections of U.S. art museums, "belong" in fact or principle to the public, U.S. art museums are obliged to keep the unprovenanced antiquity until a preponderance of evidence convinces both parties that it should be turned over to the claimant party.

In a few recent cases, U.S. art museums have been charged by foreign state authorities with having in their collections unprovenanced antiquities alleged to have been illegally removed from their (presumed) country of origin. After a review of the evidence in three of those cases, and without going to court, the art museums either returned the antiquities in question or came to an agreement to return some of them. In other cases, claims were made only through the press, with evidence hinted at but not shown to the charged museums. The museums rushed to deny the allegations and called for a review of the evidence. But by then the damage had been done: the public had read that the museums were in the possession of stolen property and that somehow, somewhere, a theft had occurred.

Most often it falls to the museum to prove that it has the right to keep the questioned unprovenanced antiquity. A foreign authority-often a ministry of the government, such as the judicial or cultural ministry; rarely, if ever, the executive or legislative branches, what we might more accurately call the foreign government-makes a claim and implies that it has evidence to back it up. In the court of public opinion, the burden of proof falls to the museum to show that it has positive evidence to the contrary: that the unprovenanced antiquity entered its collection legally. And proving one's innocence in the blinding light of a public dispute can be very difficult, especially when "convincing" evidence is likely never to be found.

By far most unprovenanced antiquities were acquired by museums long before the adoption of international agreements between nations and/or the implementation of those agreements by the U.S. government and before the U.S. courts enforced foreign patrimony laws under the U.S. National Stolen Property Act. The United States only signed on to the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property in 1983, thirteen years after it was adopted. Before 1983-and even for some years after-it was enough for U.S. art museums to perform due diligence and make a good faith effort to ascertain whether or not an antiquity had been legally removed from its presumed country of origin. Without documentation testifying to its legal status-an export license, bill of sale, or some other kind of evidence of its being in a private or public collection outside the likely source country prior to the date of the relevant law in that country-a U.S. art museum had only to inquire of antiquities authorities in the likely source country as to any evidence they might have that the antiquity was illegally removed from their country, seek a review by IFAR and the Art Loss Register for any evidence that the antiquity might have been stolen, and consider the museum's relations with the donor or dealer offering the antiquity: was the donor's or dealer's reputation positive? had the art museum a long-standing relationship with him or her? did the art museum have reason to believe that the donor or dealer had the museum's best interest in mind, rather than his or her own? and ultimately, did the art museum trust the donor or dealer? If the art museum found no reason not to proceed with the acquisition, it could do so and then was obliged to publish and exhibit the antiquity for the public's benefit. By acquiring it, the museum brought the antiquity into the public domain for the delight and instruction of everyone. If it indeed had been removed illegally from its country of origin, this would more likely be determined by its being in a public museum than by its circulating in the private realm of dealers and donors.

Things changed in 2001, when the New York antiquities dealer Frederick Schultz was indicted for (and later convicted of) conspiring to receive stolen Egyptian antiquities that had been transported in interstate and foreign commerce in violation of U.S. law, with the underlying substantive offense of violating the National Stolen Property Act. His conviction on the latter charge was a marked departure from previous cases involving similar accusations. Schultz argued that the U.S. National Stolen Property Act, under which it is against the law to import or subsequently come into the possession of stolen property, did not apply to an antiquity removed in violation of a national patrimony law like Egypt's, since such an object was not "stolen" in the commonly used sense of the word in the United States. The court disagreed and found in favor of the 1983 Egyptian patrimony law, which declares all antiquities found in Egypt to be state property and thus owned by the Egyptian nation. Anyone, or any institution, coming into possession of such articles without state authorization is necessarily in possession of stolen property and in violation of the law.

Due diligence and good faith inquiries are no longer sufficient. When weighing the risks of acquiring an antiquity for which there is no positive evidence of its legal removal from its presumed country of origin, U.S. art museums have to be much more careful. It is not simply that the antiquity might be returned. It may be that individuals within U.S. art museums will be held criminally liable. As a consequence, the acquisition of antiquities by U.S. art museums has declined dramatically over the past five years. This does not mean that illegal trafficking in antiquities or the looting of archaeological sites has declined; in fact, archaeologists claim that both have increased. It means only that unprovenanced antiquities are not being acquired by U.S. art museums to the extent that they were in the past. Instead, undocumented antiquities are going elsewhere in greater numbers, either remaining in the private domain of private collectors and dealers or being sold or donated to museums in countries that do not enforce foreign patrimony laws as the United States does. If undocumented antiquities are the result of looted (and thus destroyed) archaeological sites, that there is still a market for them anywhere is a problem. Keeping them from U.S. art museums is not a solution, only a diversion.

A second criticism of the acquisition of unprovenanced antiquities is that it is unethical: unprovenanced antiquities are likely to have been looted from a (now) damaged archaeological site and the destruction of archaeological sites and the loss of the knowledge they contain is bad and those who encourage it are bad as well. But archaeologists consider almost any context in which an old object is found an archaeological site. And they consider every archaeological site important, for it will likely tell us something we wouldn't otherwise know, and that is good.

Was every unprovenanced antiquity at some point in an archaeological site? It depends on the definition of an archaeological artifact, what I am calling an antiquity. The general, political definition of an antiquity (as it is used in political agreements and national laws) is an object that is more than 150 years old. Often they are included among all manner of things more properly called "cultural property." Recent requests by the governments of Italy and the People's Republic of China to have the U.S. government impose blanket restrictions on the import of a range of materials were based on the premise that such restrictions would protect archaeological sites, since they would not allow for the import of looted and illegally exported antiquities. But the requests were very broad. In Italy's case, it included stone sculpture, metal sculpture, metal vessels, metal ornaments, weapons/ armor, inscribed/decorated sheet metal, ceramic sculpture, glass, architectural elements and sculpture, and wall paintings dating from approximately the ninth century b.c. to approximately the fourth century a.d.; that is, virtually every kind of object produced in or imported to the land we now call Italy over 1,200 years of recorded human history. In China's case, it was even more broadly defined, covering all manner of things from the Paleolithic period through the end of the Qing dynasty (a.d. 1911); by its own estimation, some 20,000 years of human artistic and material production, including everything from bronze, gold, and silver vessels to textiles, painting, calligraphy, lacquer, wood, and bamboo objects, and ceramics of all kinds. Clearly, these items are not all equally ancient in the common use of the term, nor are they all archaeological artifacts. Many of them were made for the trade and circulated in the trade for hundreds if not thousands of years. It is unlikely that each artifact was removed from an archaeological site. The promiscuous slippage between the terms "antiquities" and "cultural property" in the public and governmental discourse on the acquisition of unprovenanced antiquities is unhelpful, and, as I discuss below, is intended to support a nation's nationalist aspirations rather than the stated goal of protecting archaeological sites.

Why are archaeological sites looted and unprovenanced antiquities sold? Because, the archaeologists' argument has it, antiquities have commercial value. If they had no commercial value, they would not be looted and sold. They would remain in the ground for archaeologists to excavate, and would enter local site or national museums with knowledge of their archaeological context intact and would be there for people to enjoy as sources of inspiration and learning. But of course, until such time as antiquities have no commercial value, it is reasonable to assume that archaeological sites will be looted and unprovenanced antiquities sold. How to deprive antiquities of their commercial value, and thus how to protect archaeological sites and preserve the knowledge they contain? Stop buying them. Of course, people should also stop looting and selling them, but that falls to source nations to enforce. And that is extremely difficult: they would have to police all known and suspected archaeological sites within their borders and fully police their borders to prevent illicit export of antiquities. It is unlikely that this can be done: there are too many sites, national borders are too porous, and the nations themselves are too poor. Rather, it should be up to the acquiring (sometimes called "collecting") nations to enforce restrictions against importing and buying unprovenanced antiquities. And when these countries no longer allow for the import or purchase of unprovenanced antiquities, all other nations will follow; then there will no longer be a market for such artifacts and archaeological sites will no longer be looted. Of course there may still be people and institutions willing to risk looting and buying unprovenanced antiquities illegally. But one day even they will no longer take these risks, since all acquiring and source nations will enforce export, import, and ownership laws equally and the risks will be just too high (and the rewards too low). The market will finally dry up. What happens until then?

No museum has ever endorsed the looting of archaeological sites and the loss of the knowledge they contain. But in many respects, when faced with the choice whether or not to acquire an undocumented antiquity, the looting of the archaeological site has already occurred and the knowledge that may have been gained from the careful study of an antiquity's archaeological context has already been lost. Now the museum is faced with the choice of acquiring a work and bringing it into the public domain for the reasons cited above, or not acquiring it.

It is a fact that the archaeological site will not be restored or the lost knowledge recovered by a museum's decision not to acquire the antiquity. Then, putting aside the legal risks for a moment, why shouldn't a museum acquire it? Critics of museums emphasize the benefits of a "clean hands" approach. Even if it were legal to acquire unprovenanced antiquities, and even though not acquiring them will not restore archaeological sites nor recover any loss of knowledge, a museum should not acquire such works but should instead set an example for others to follow. Although in the interim archaeological sites will be looted and knowledge lost, eventually that will no longer be the case. It is more ethical, according to this argument, to allow looted antiquities from damaged or destroyed archaeological sites to remain unknown in private hands or in museums elsewhere in the world.

(Continues...)

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Excerpted from Who Owns Antiquity? by James Cuno
Copyright © 2008 by Princeton University Press. Excerpted by permission.
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