Seizure of Mexican Figurine Prompts Question of CBP's Legal Authority

United States Customs and Border Protection (CBP) announced in a new(s) release on July 28, 2011 that it seized a Pre-Columbian artifact en route from Indiana to British Columbia. A buyer in Canada reportedly purchased the small orange Nayarit figure of a woman through an auction, and CBP agents intercepted the package in April during routine checks at Chicago's O'Hare Airport. CBP said that the shipment was "manifested as containing an artifact."

CBP and Immigration and Customs Enforcement-Homeland Security Investigations (HSI) had the Chicago Field Museum examine the object, concluding it "to be an authentic Pre-Columbian artifact of West Mexico dating to the early first millennium AD." The Consulate General of Mexico, meanwhile, claimed that the object was unlawfully exported from that country.

CBP seized the four inch tall Nayarit figurine under Title 19, Chapter 14 of the customs laws. The statute is commonly referred to as the Convention on Cultural Property Implementation Act (CPIA), meant to implement the well-known 1970 UNESCO Convention that covers cultural property. Federal agents in Chicago took the ancient Mexican artifact into their possession under Section 2609 of the CPIA, which permits seizure of protected cultural artifacts covered by import regulations promulgated under section 2606 (as well as stolen objects that had been documented in the institutional collection of a state party to the convention). Import restrictions enacted under Section 2606 result when the United States enters into an agreement with another nation under the authority of the CPIA. Many readers of this blog are familiar with the CPIA process and know that several nations have bilateral agreements with the United States pursuant to CPIA. Mexico, however, is not one of those nations.

So how can CBP take away an ancient Mexican cultural object from its possessor by using the CPIA? I called CPB to find out. The agency's representatives were polite and responsive to calls, but the replies were not helpful. A CBP Associate Chief Counsel said that "we don't comment on anything like this," adding that "we limit any of our comments about the law and our interpretation on the law to our client itself, which is, of course, the agency." Such a closed response from a government agency that actively sought public attention to this seizure and freely declared the legal basis for the seizure is unsatisfactory. CBP issued a public press release announcing the taking of the Nayarit figurine and broadcasted that "[t]he artifact will be returned to the Mexican government in an upcoming CBP and ICE-HSI repatriation ceremony." And while the agency claims the matter is under investigation, CBP's desire to return potential evidence to Mexico, coupled with its early public release of information relevant to the case, does not signal a meaningful commitment to maintain the integrity of the investigation.

We are left to speculate about what CBP may have been thinking when it seized the object. Federal officials could not have seized the Mexican artifact under a legal theory involving the National Stolen Property Act because the NSPA requires an item to have a value of $5000 or more before it is considered stolen under that law. The Mexican artifact was purchased at auction for $550, far less than $5000. So CBP had to look for other legal authority to take the artifact into custody.

Perhaps they erringly looked to a treaty for legal authority? The United States and Mexico entered into a Treaty of Cooperation on March 24, 1971, which provides for the recovery and return of stolen archaeological, historical, and cultural properties. The treaty, which is in force today, permits the United States "to employ the legal means at its disposal to recover and return from its territory stolen archaeological, historical and cultural properties that are removed after the date of entry into force of the Treaty from the territory of the requesting Party." But this agreement was not enacted into law under the terms of the CPIA, meaning there are no import restrictions on Mexican cultural property that derive from Section 2606 of the CPIA to justify a Section 2609 seizure of the Nayarit figurine by CBP.

So what exactly was CPB's legal authority to seize the Nayarit figurine? We have no explanation about why a Section 2609 seizure was the proper legal basis to take away the ancient Mexican artifact.

Federal officials must take great care when using unexplained interpretations of the law to promote seizures of property. While CBP may be commended for taking action to detect trafficked cultural heritage, federal authorities should exercise their authority in a reasonable, intelligent, and open fashion. No citizen should be left guessing about how exactly he or she can comply with the law so as to avoid the loss of property. Clear and reasonable applications of the customs laws, and plain explanations to back them, can build public support for America's effort to protect and secure at-risk cultural property. By contrast, offering questionable or undisclosed legal positions in cases where property may be seized—particularly in cases involving potentially innocent possessors—does little to garner confidence in public authorities.

Photo: Chicago CBP

US Claims SLAM Lacks Legal Standing—Asserts That Mummy Mask is Illegal Contraband —Discovery Reveals More Information

In the latest round of papers filed in court last week, lawyers for the US Attorney’s Office in St. Louis sought to strike the St. Louis Art Museum’s legal claim in the federal lawsuit involving the mummy mask of Ka-Nefer-Nefer. Federal authorities sought forfeiture of the mask in March after the museum filed for a declaratory judgment in February seeking quiet title to the artifact. Both cases were filed in federal district court in St. Louis.

Federal attorneys, in their July 27 pleading, contend that SLAM’s “claim of ownership is legally impossible, and as such the Mask is effectively contraband in the hands of the Museum.” The government argues that Egypt’s patrimony law, which gives ownership rights of cultural property to the Egyptians, makes it impossible for the SLAM to own the mummy mask. Therefore, SLAM has no legal standing to assert that it can own the mask.

The government’s brief analogizes SLAM’s claim to the mask as similar to asserting ownership over cocaine—one cannot legally claim ownership. Since the mask cannot be owned by the museum, the museum lacks standing to claim ownership, the government argues.

SLAM says that it has standing to be a legal party in the case because it bought the mask and it possesses it.

The government first disputed SLAM’s legal standing in a July 7 motion. Government attorneys filed the pleading following the receipt of interrogatory answers by SLAM. While the museum wrote that it objected to having to answer questions about how it acquired title to the mask or having to identify documents that would support its claim to lawful ownership, SLAM, nevertheless, answered the interrogatories without waving these objections.

The museum supplied the following information:

• It purchased the mummy mask for $499,000 from Phoenix Ancient Art of Geneva, Switzerland around April 3, 1998.

• Phoenix Ancient Art warranted in a purchase and sale agreement that it had title to the mask and could properly transfer title.

• Phoenix provided provenance information to SLAM before the purchase. “According to Phoenix, in or about 1995, it had purchased the Mask from Ms. Zuzi Jelinek, who in or about the early 1960’s, had purchased the Mask from the Kaloterna (or Kaliterna) private collection,” the interrogatory answer relates.

• The museum conducted a provenance investigation to determine if the mask was stolen by contacting INTERPOL, the Missouri Highway Patrol, the Art Loss Register, and the former director of the Museum of Egyptian Antiquities in Cairo, Dr. Mohammed Saleh.

• The museum conducted an investigation through Swiss legal counsel to determine if there were any liens or encumbrances on the mask. No encumbrances were found.

• Swiss legal counsel confirmed Jelinek’s address.

• The museum contacted Dr. Saleh, who advised SLAM to contact another US museum and who did not say that the mask was stolen or “advise the museum against purchasing the Mask.”

SLAM also provided a spreadsheet of 19 documents, which it claims supports the museum’s legal interest in the mummy mask. The documents can be categorized as a purchase agreement, a bill of sale, letters, and emails.

Missing from the documents list is a purchase or sales agreement between Jenilek and Pheonix Ancient Art. SLAM claimed in past court filings that such a transaction would have occurred in 1995. SLAM, nevertheless, includes on the list of documents a 1997 fax from Phoenix that purportedly attaches a letter of provenance from Jenilek.

Also missing from the documents list are shipping papers or import papers describing the mask’s entry into the United States. Import papers generally describe a package’s date of entry, location of entry, country of origin, value, and contents. The court papers suggest that the mummy mask traveled from Switzerland to the United States in 1998, but this information remains unclear. The mask must have been imported into the United States at some time and at a specific point of entry. But the question of whether papers exist documenting the importation of the Egyptian mummy mask, valued at several thousands of dollars, remains unanswered thus far.

Reclaiming Trafficked Egyptian Cultural Objects: US Seizure Laws and How to Make a Report to Customs and Border Protection

The Egyptian people have displayed admirable concern for cultural heritage by protecting museums and archaeological sites while courageously expressing their hope for self-determination. It is a credit to the people that the intact Egyptian Museum remains a centerpiece of news images coming from Tahrir Square.

There are naturally reports of theft, vandalism, and looting during this time of upheaval, prompting calls to international law enforcement to remain on the lookout for Egyptian antiquities illegally trafficked from the country.

Some have asked how United States authorities can seize Egyptian antiquities spotted crossing the American border. Others have asked how to report suspected illegal activity. Some answers are briefly provided here.

CBP Officer Herbert Kercado stands near
an illegally imported Egyptian sarcophagus
he discovered in Miami, Florida.
Photo courtesy CBP, March 2010.

US Customs and Border Protection (CPB) of the Department of Homeland Security is the front-line agency primarily responsible for the initial detention of contraband that arrives on American soil. Its officers, and other agents of Homeland Security--such as Immigration and Customs Enforcement (ICE) officers and ICE Homeland Security Investigations (HSI) officers--rely on federal rules that authorize the seizure of illegally imported cultural property. Some of these rules are described here.  Meanwhile, reports regarding import/export violations can be made to CPB as described below.

NSPA Seizure

Customs officers have authority to seize a stolen Egyptian antiquity under the National Stolen Property Act (NSPA) when:

• it is valued at $5000 or more,

• is known to have been stolen,

• is covered by Egypt’s patrimony Law No. 117 of 1983, amended by Law No. 3 of 2010, and

• is transported over the American border.

Under this scenario, authorities would rely on Titles 19 and 18 of the federal code in conjunction with the McClain/Schultz doctrine. Title 19 is the portion of federal law that contains the customs statutes, in particular the Tariff Act of 1930, 19 U.S.C. §1595a(c)(1)(A). Title 18 contains the criminal code, which includes the National Stolen Property Act (NSPA), 18 U.S.C. §2314. The McClain/Schultz doctrine, meanwhile, is a court defined rule that takes into account a foreign nation’s patrimony law. United States .v Schultz, 333 F.3d 393 (2nd Cir. 2003).

By way of explanation, the third element of the NSPA seizure rule depends on Egypt having a strong patrimony law. A federal court in the case of United States v. Schultz determined that Egyptian Law on the Protection of Antiquities (Law 117) is a patrimony law that asserts Egyptian public ownership of antiquities—as of 1983—and restricts private possession or ownership of cultural property. Law 117 was later strengthened by Law 3 in 2010, and this revision would not likely affect the Schultz court's conclusion.

There may also be a claim of forfeiture made under 18 U.S.C. § 981, applying to property “derived from proceeds traceable to a violation of” a statute such as the NSPA.

Stolen Egyptian artifacts may be seized by customs pursuant to an NSPA seizure, but artifacts can slip by. For example, an object that is extremely valuable to archaeologists as evidence of Egyptian’s history may be worth less than $5000, and determining whether an object is “stolen” can present a challenge.

CPIA Seizure

Other seizure authority may be found in Title 19’s Cultural Property Implementation Act (CPIA). The CPIA states that “[n]o article of cultural property documented as appertaining to the inventory of a museum or religious or secular public monument or similar institution . . . which is stolen from such institution [after April 12, 1983] . . . may be imported into the United States.” 19 U.S.C. §2607. Items that were inventoried and then stolen from Egyptian museums, churches, monuments, etc. may therefore be seized and forfeited by customs officials under a CPIA seizure. 19 U.S. C. §2609. (Note that there may be a legal argument against this reasoning, however.)

A CPIA seizure of this kind is different from an NSPA seizure. The customs officer does not have to worry about whether an object is valued at $5000, for instance. The CPIA’s focus is on whether a cultural object is stolen from an institution or monument, whether it is part of a documented inventory, and whether it is considered to be cultural property. Cultural property is broadly defined as “property which, on religious or secular grounds, is specifically designated by each State [Party to the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970] as being of importance for archaeology, prehistory, history, literature, art or science . . . .” Cultural property can include anything described in Article 1 of the 1970 UNESCO Convention, including rare fauna, paleontological artifacts, archaeological objects, dismembered historical monuments, and more. 19 U.S.C. §2601.

There are problems with CPIA seizures. For instance, cultural property that is freshly looted from the ground is not part of a documented inventory. Objects secretly dug up from Saqqara, Abusir, or other historic site in Egypt could slip through these seizure rules. Additionally, Egyptian government leaders might be reluctant to declare that thieves stole artifacts from their institutions or sites for political or security reasons, and US customs officials would not be expected enforce federal law under these circumstances.

ARPA Seizure

There is an argument to be made that seizure of Egyptian antiquities could also be made under the Archaeological Resources Protection Act (ARPA). Under 16 U.S.C. §470ee(c) and criminal seizure rules, archaeological resources could be seized if they were trafficked in foreign commerce in violation of state or local law. But a seizure of Egyptian antiquities under this statute can be complicated and perhaps legally uncertain. Indeed, it should be noted that this type of seizure is not listed as an option in customs agents’ Seized Asset Management and Enforcement Procedures Handbook. But it has been used successfully in the past, and ARPA search warrant procedures are taught at the Federal Law Enforcement Training Center. §470ee(c) was once used to seize and forfeit Etruscan pottery in NY that violated NY’s receiving stolen property law, for example.

Complementary Legislation

Existing cultural property seizure rules may not be enough to secure all illicit Egyptian cultural artifacts potentially coming across the border. If there is critical concern that cultural objects from Egyptian museums or archaeological sites have been stolen or looted, and if there is further concern that these objects are being trafficked outside Egypt, then US lawmakers should seriously contemplate adopting additional measures of protection. The passage of an Emergency Protection of Egyptian Cultural Antiquities Act, enacted pursuant to 19 U.S.C. § 2603 of the CPIA, could prove useful to a determined effort designed to tackle the problem. Such a law could more clearly focus the attention of law enforcement and the public on Egyptian cultural heritage at risk. It could also provide due process requirements while permitting the seizure of Egyptian cultural objects regardless of whether they were known to have been stolen from a cultural institution, looted from the ground, or had any monetary value.

Reporting Illegal Egyptian Cultural Property Imports

If you suspect that a cultural object from Egypt has been looted, stolen, or trafficked you should report it to US Customs and Border Protection. It is easy over the internet. Just fill out the secure form at https://apps.cbp.gov/eallegations/. You can also make a report by telephone by calling 1-800-BE-ALERT.

Understanding Federal Law Enforcement's Heritage Protection Efforts

The Archaeoligical Institute of America in August 2010 posted a description of how federal law enforcement approaches heritage protection. It describes in greater detail the interaction between the various laws described here and the federal agencies that enforce them. Read it at http://www.archaeological.org/news/advocacy/2564.