The thorny issue of deaccession

On July 10, 2014, at Christie’s in London, a 4,000-year-old Egyptian limestone statue of an official named Sekhemka was sold to a telephone bidder for £15,762,500 (or $27,001,163, with the buyer’s premium). This sale was strongly opposed by several groups, including the UK Museums Association (MA), the Save Sekhemka Action Group, and Egypt’s Antiquities Ministry.

Why the controversy? It is because the sale violated the general deaccessioning policies of museums. Deaccession—a permanent removal of an object from a museum’s collection, usually through sale—is not undertaken lightly by museum curators. It is usually done only with artworks that are duplicated in the collection or that are too damaged for conservation or display. In good museum practice, the funds generated from the sale are used only for the improvement of the collection.

The UK Museums Association stipulates that the money raised from deaccession should only be used to improve the existing collection. In the United States, the Association of American Museum Directors’ usual standard is that artworks cannot be sold just to fix a leaky roof. The AAMD Policy on Deaccessioning, amended on October 4, 2010, specifies that “funds received from the disposal of a deaccessioned work shall not be used for operations or capital expenses. Such funds, including any earnings and appreciation thereon, may be used only for the acquisition of works . . .”

Cultural heritage is not an asset to be liquidized and monetized. Nor is deaccessioning a sustainable way of generating funds.

Does the Northampton Museum’s expansion of gallery space meet these stipulations? Probably not, as 55% of the proceeds (about £8m) will be used for a major extension project, which will double the size of the exhibition space and create new education and commercial facilities. But this is not a collection improvement project.

What is more alarming is that the Northampton Museum is only one of the many deaccession cases. In 2013, the Croydon Council was criticized for selling twenty-four pieces from the Riesco Collection of Chinese porcelain to raise £8m for refurbishing Fairfield Halls, its local arts center. This sale prompted the Arts Council England’s (ACE) Accreditation panel to remove the Croydon Museum’s accreditation status. Similar issues surrounded the attempt by the Tower Hamlets Council in East London to sell a Henry Moore sculpture in order to ease the financial problems it faced following massive government funding cuts.

The Northampton statue of Sekhemka The Northampton statue of Sekhemka
Mike Pitts from http://mikepitts.wordpress.com

In the United States, in February 2014, the Maier Museum at Randolph College in Lynchburg, VA, was sanctioned by the AAMD for selling George Bellows’ painting Men of the Docks (1912) to the National Gallery of Art in London for $25.5 million for the purpose of easing the college’s financial difficulties. The American Alliance of Museums criticized the sale as “a flagrant, egregious violation of our Code of Ethics for Museums, showing total disregard of an important tenet common to the charter of all museums . . .” Similarly, in June, the Delaware Art Museum auctioned off a William Holman Hunt painting, Isabella and the Pot of Basil (1868), for $4.25 million which it used to pay outstanding debt and build its operating endowment. The museum was subsequently sanctioned by the AAMD, which means that no AAMD member museums will loan works of art or collaborate on exhibitions with the Delaware Art Museum.

It is my understanding that there were no legal issues in all of these sales. The objects were not bound to any donor stipulation that the museum never sell the object. The issue here is not one of legality, but one of public trust. Public museums are stewards of cultural heritage. Their mission is to protect and preserve the cultural artifacts with which they are entrusted.

Cultural heritage is not an asset to be liquidized and monetized. Nor is deaccessioning a sustainable way of generating funds. Although the sale of the Sekhemka statue brought $27 million, it is probably a short-term financial gain. If the Arts Council England (ACE) revokes the accreditation status of the Northampton Museum and it loses ACE funding, this sale might prove to be costly in the long run. According to BBC, the ACE granted the museum £166,000 in 2012 and £69,000 in 2014. This is probably why the Art Fund, a charitable supporter of art institutions, decried Northampton’s decision as “financially as well as morally harmful.”

I imagine how heartbroken the New Yorkers were when Asher Durand’s Kindred Spirits (1849) left the city for Arkansas’s Crystal Bridges. For those who long loved looking at the masterpiece before entering the Edna Barnes Salomon Room on the third floor at the New York Public Library, the deaccession of the Durand painting must have been like losing a family treasure.

Perhaps that was the sentiment that Andy Brockman, an archaeologist working with the Save Sekhemka Group, felt, when he said that the Sekhemka statue “was gifted for the enjoyment and education of the people. It is held in trust for the future. This is selling the family silver.”

What can the public do to prevent the museums from deaccessioning public treasures? Please let SAFE know by commenting below.

(Featured image from Getty Images GB).

 

UPDATE: Arts Council England strips Northampton of accreditation

On Friday, August 1, the Arts Council England revoked the accreditation of the Northampton Museum and Art Gallery, as well as the Abington Park Museum, as a result of the sale of the Sekhemka statue.  

This sanction speaks much louder than any commentary on the sale: the Northampton Museum has violated the code of ethics of deaccession. Scott Furlong, director of acquisitions, exports, and loans unit at the Arts Council said, “I am confident that the museums sector and wider community will share our dismay at the way this sale has been conducted and support the decision to remove Northampton Museums Service from the scheme.”

The annulment of the accreditation status is a drastic measure. The last time ACE took such action was in May 2013, when Croydon Museum was removed from the Accreditation Scheme.

The Northampton Council is now illegible for a range of grants and funding, and excluded from future participation with the rest of the accredited museums until August 2019.

I join SAFE in applauding the Arts Council’s ruling.

Auctioning Sacred Objects in Paris, Indigenous Cultural Patrimony, and Burdens of Proof

The April 2013 auction of sacred Native American ceremonial items by the auction house Néret-Minet Tessier & Sarrou* in Paris proceeded only after legal action and vocal international protests from indigenous peoples, anthropologists, museologists, and even the USA government. Ultimately, the French courts upheld the property right of artifact collectors and the auction house over the rights of the Hopi and other indigenous peoples to protect their collective cultural patrimony.

Photograph of auction underway at Tessier & Sarrou. The auction floor of Tessier & Sarrou.
Photo by Tessier & Sarrou.

According to the 12 April 2013, New York Times, the auctioneer told assembled bidders that ‘in France you cannot just up and seize the property of a person that is lawfully his,’ meaning, of course, the rights of wealthy collectors trump those of indigenous cultures.

Not surprisingly, the auction event and outcome were topics that surfaced in several discussions during the recent American Anthropological Association meeting in Chicago. A series of commentaries in response to the auction are also featured in the Fall 2013 issue [36(2)] of Museum Anthropology, journal of the Council on Museum Anthropology.

Leading those commentaries is the press release from the Hopi Tribe, which states the issues succinctly and should be read in its entirety:

Kykotsmovi, Ariz.-The Hopi Tribe is vehemently opposed to the auction of Hopi sacred objects at the upcoming Neret-Minet Tessier & Sarrou auction scheduled for April 12 in France. The tribe is requesting that the sacred objects be returned to the Hopi Tribe immediately.

“The Hopi Tribe must protect the cultural beliefs that we have used for centuries and still continue to use today,” said Hopi Tribal Chairman LeRoy N. Shingoitewa. “We think these sacred objects were stolen from the Hopi Tribe and should be returned to the proper custodians and caretakers, the Kachina chiefs, within their respective Hopi villages.”

The sacred objects in question have high religious value to the Hopi Tribe dating back centuries. Part of the Hopi Tribe’s cultural history and upbringing states that showing the images of these sacred objects is highly offensive to the Hopi Tribe. In addition, these items should be referred to only as sacred objects; incorrectly labeling them and showing the images is very disrespectful to the entire American Indian community and the Hopi Tribe.

“The majority of the sacred objects that are being sold date back to the 1930s,” said Leigh Kuwanwisiwma, director of the Hopi Tribe’s Cultural Preservation Office. “They were likely illegally obtained by a French citizen visiting our reservation. The mere fact that a price tag has been placed upon such culturally significant and religious items is beyond offensive. They do not have a market value. Period.”

“The sacred objects that are being put up for auction belong to the entire Hopi Tribe, they have cultural patrimony meaning there is a tribal and cultural right, they have never belonged to a single person,” said Kuwanwisiwma. “Because these objects do not belong to a single person, they have no monetary value and cannot be sold.”

For more information on the Hopi Tribe, visit www.hopi-nsn.gov.

The Hopi Tribe argues that the ceremonial objects put on auction are ipso facto illegally in France and should be returned to their respective villages.

Writing in comment on the auction, Chip Colwell-Chanthaphonh [Denver Museum of Nature & Science] compares three different international claims to cultural property made in 2013 that raise striking questions about repatriation and the burden of proof.

He notes that the descendants of Paul Rosenberg, an art dealer, argued that in 1941 the German NAZI government stole a Matisse painting that is now displayed in the Henie-Onstad Kunstsenter in Baerum, Norway. Rosenberg’s heirs claim ownership and demand return of the painting. A second example is the effort by the Cambodian government to reclaim two statues from the Metropolitan Museum of Art in New York and one from Sotheby’s that were looted sometime between 1970 and 1975. His third example is the effort by the Hopi Tribe to reclaim its lost cerimonial items.

Photograph of Hopi posing with US congressmen Living proof? ‘Senator Cameron of Arizona (with big hat), VP Dawes, and Speaker Longworth with the Hopi Indians who genuine Hopi Snake Dance for members of Congress on plaza, May 15, 1926′ #LC-H2-B-168.
Library of Congress Prints and Photographs Division

Colwell-Chanthaphonh observes trenchantly that “Modern Western law and Western thought are predicated on the idea of concrete proof. While obviously useful in most cases, it sometimes prejudices courts against Native Americans. Many sacred objects are meant to be esoteric and private, not for public consumption or regular documentation. To provide the kinds of proof needed by a court is a violation in itself. … Really, what kind of proof would the court have accepted about the existence of ancestral spirits?” (Colwell-Chanthaphonh 2013, 109).

He concludes that the Rosenberg family will likely get their stolen paintings, and the citizens of Cambodia will get their stolen statues, but the Hopi and Zuni people – because their history and culture do not meet Western standards of proof – will not see the return of their stolen katsina and kokko friends.

In her commentary, Miranda Belarde-Lewis [University of Washington] describes her additional outrage of seeing photographs of kokko (the Zuni term for katsina) friends made by the gallery and reproduced for the auction and then again in the coverage of the auction in the press.

Belarde-Lewis expresses shock at seeing the objects displayed as art, and the violation of Pueblo law prohibiting the photography of kokko friends and all associated ceremonial activity. She asks “does a ceremonial item cease being sacred once it is removed from its home community? Of course not” (Belarde-Lewis 2013, 104). She writes that it is damaging to Pueblo “ways of living, being, and knowing, not only when kokko friends are for sale but also when they are depicted as art and when they are represented in images that strip the kokko friends from their context” (ibid).

Other commentaries are provided by Robert G. Breunig [Museum of Northern Arizona], Tony R. Chavarria [Museum of Indian Arts & Culture], Jim Enote [A:Shiwi A:Wan Museum and Heritage Center], Cécile R. Ganteaume [National Museum of the American Indian, Smithsonian Institution], Steven C. Moore [Native American Rights Fund], Lydia Knowles [Denver Museum of Nature & Science], Bruce Bernstein [Continuous Pathways Foundation, Pueblo of Pojoaque].

References:

Belarde-Lewis, M. 2013. No Photography Allowed: Problematic Photographs of Sacred Objects. Museum Anthropology 36(2): 104.

Colwell-Chanthaphonh, C. 2013. Repatriation and Burdens of Proof. Museum Anthropology 36(2): 108-109.

Mashberg, T. 2013. Auction of Hopi Masks Proceeds After Judge’s Ruling. New York Times. 12 April. Accessed at http://artsbeat.blogs.nytimes.com/2013/04/12/french-judge-rules-that-auction-of-hopi-masks-can-proceed/?_r=0

Additional readiing:

Indian Country Today.com entires about auction. http://indiancountrytodaymedianetwork.com/tags/neret-minet-tessier-sarrou

* According to their website, Tessier & Sarrou auction house was “founded in 1691 under the reign of King Louis XIV. It is specialized in sales of furniture and objets d’art, ancient and modern paintings, jewelry, Chinese archeology and arts of Asia, comics, perfumery, silverware, antique textiles, archives and manuscripts, and objects of marine , folk art, toys and dolls.”

How much looting needs to happen before we start to think twice?

In an atmosphere of general unrest and lack of control or safety provided by government, looting frequently rises to unprecedented levels as those desperate for quick cash plunder from the coffers of our global heritage. However, it is not the looters who stand to gain the most from such a timely situation, but rather the collectors who are able to add another invaluable piece to their collections, ripped from the fabric of civilization.

Yet even before the events of the Arab Spring raged across the Middle East and enraptured the world, the market for Syrian and Egyptian antiquities was booming. Many lots (objects for sale at auctions) were selling for above their estimated prices, with one pair of carved stone capitals from Syria selling for GBP 313,250 – more than five times its pre-sale estimate of GBP 60,000. With no provenance at all listed in the lot’s record, it’s incredible that a collector would nevertheless spend over a quarter of a million pounds on artifacts that could have been illicitly excavated or exported.

My process

I was curious as to how the looting and destruction that swept the Middle East during the Arab Spring might have impacted sales of Egyptian and Syrian antiquities, so I decided to compare pre-2011 and post-2011 sales in the hopes that this would shed some light on the issue.

I conducted this research both online and in libraries, accessing catalogues from past auctions from the Sotheby’s and Christie’s websites, as well as in the National Gallery of Art Library in Washington, D.C. and the National Art Library in London. I found the websites quite difficult to navigate, and it feels as though the online catalogues are there for casual perusing rather than serious research. There is no means of collating relevant items or auctions, and the information listed online leaves quite a lot to be desired.

Techniques used by auction houses

sothebys Unprovenanced Syrian stone capitals sold at Sotheby’s

Many of the artifacts, like the stone capitals described above, have no provenance listed, or will have an incredibly sparse record, like this Syrian limestone head which was simply “acquired prior to 1987” or this basalt torso of Herakles “said to have been found prior to World War II” (both pieces auctioned in 2010). The Herakles statue sold for 230,000 USD, twice its estimate. Many other pieces sold for over their estimates, indicating that a healthy appetite for Egyptian and Syrian artifacts still exists.

One of the thinnest provenances I saw was simply a listing of previous auctions, as if having made it through the system once before is enough proof that an artifact is fair game to be auctioned again. (If you’re interested in seeing some of these techniques in action, check out any catalogues from auctions of antiquities at Sotheby’s or Christie’s and you will quickly come across them.)

I had hoped that perhaps things would have improved after the events of 2011, but this was not the case. Provenance listings were no more specific or accurate than they had been previously, and there was no indication from any major auction house that they were taking into account the uncertainty in the Middle East when it came to acquiring objects for auction. In auctions taking place immediately after the Arab Spring, there were no reassuring notices placed in the front of the glossy antiquities catalogues confirming that the auction house had ensured the legality of all pieces (although perhaps they had — I’m not making accusations, just observations).

Even if an auction house deigns to ask a country if it believes an item has been looted, there are no public records from illicit excavations, and therefore no way for that country to prove that it was taken, from where, or even when.

Another way auction houses shift attention from an artifact’s physical origins to its aesthetic qualities is by listing multiple countries as the possible place of creation. As Colin Renfrew explains in Loot, Legitimacy and Ownership, having an unclear place of origin prevents any one country from laying claim to the item. Moreover, even if an auction house deigns to ask a country if it believes an item has been looted, there are obviously no public records from illicit excavations, and therefore no way for that country to prove that it was taken, from where, or even when.

I had expected to see a huge increase in the number of items placed for sale following the 2011 revolutions. However, there actually appears to have been no increase, which surprised me. Auction activity was relatively uniform from 2009 to 2013. Had there actually not been any items looted during the general state of instability and anarchy that seized much of the region? My suspicion is that these objects just haven’t had enough time to reach the international market. Looting is absolutely happening, as evidenced by photographs of sites speckled with large holes and scattered artifacts.

Evidence for looting

Indefatigable Egyptian archaeologist Monica Hanna has been single-handedly exposing an incredible amount of looting in Egypt, even going so far as to confront some of the armed looters herself. Hanna sent me some pictures of the landscape at Abu Sir el-Malaq, where looters have left behind piles of ravaged bones and mummies in favor of more saleable and attractive artifacts. This is just some of the damage that she has documented at that site:

abu sir el malaq 4 Bones left behind as looters uncover graves
abu sir el malaq 3 A child carries an artifact tossed aside by looters
abu sir el malaq 2 Archaeologists survey the damage at Abu Sir el-Malaq
abu sir el malaq 1 The pockmarked lunar landscape left by looters

The reality is that looting is definitely happening in Egypt. We haven’t yet seen these artifacts reach a public market, but they are out there. Or — even worse — as the events of the last week have shown, stolen artifacts may have actually been destroyed by those who took them, like we saw at the Malawi Museum. Hanna herself was at the Malawi Museum when looters stormed its doors, and defended its treasures against armed attackers. Some of the artifacts taken have since been returned, but hundreds remain missing, and it is possible that many of those still at large have been irreparably destroyed.

Trafficking Culture, a research programme into the global trade of looted artifacts based at the University of Glasgow, advocates using Google Earth as a means of tracking looting. This screenshot from Google Maps seems to show holes dug by looters south of the Great Pyramids at Giza:

Giza Holes

Conclusion

There has yet to be a “boom” in the number of Near Eastern antiquities for sale because dealers can afford to wait. As demonstrated by the mere existence of the Swiss Freeport (and its shameful role in Giacomo Medici’s looting empire, documented in The Medici Conspiracy), it’s fairly easy to have such a backlog of illicitly obtained items so as to not need to immediately sell newly acquired ones. Moreover, dealers aren’t dumb: they know that flooding the market with unprovenanced antiquities not only looks suspicious, but also will devalue each item as supply increases. Just as the Mugrabi family carefully plays the market to keep Warhol’s value high, so antiquities dealers know when to buy and when to sell.

It is disturbing that the public appetite for antiquities is so great that one can easily buy a faience figurine for just a few hundred dollars and no thought of import laws.

Tess Davis, a member of the “Trafficking Culture” project, is researching the process that many artifacts go through as they are essentially smuggled into legitimacy. It will be interesting to see the conclusions that her research yields, and I hope that it will shed some light on the process that looted artifacts have — and are still — undoubtedly been going through for the past two years.

Even searching for something as simple as “Egyptian antiquity” on eBay turns up multiple results for unprovenanced objects. While it is very likely that these are fakes rather than looted originals, it is disturbing that the public appetite for antiquities is so great that one can easily buy a faience figurine for just a few hundred dollars and no thought of import laws, UNESCO or otherwise. (Luckily, UCLA archaeologist Charles Stanish believes that eBay’s large selection of fakes is actually helping to stop looting, estimating that 95 percent of the archaeological artifacts listed on eBay are forgeries).

“The only Good Collector is an ex-Collector.” – Colin Renfrew

The idea of a benevolent collector has been problematized many times, including by Renfrew, who concludes that “the only Good Collector is an ex-Collector” (Public Archaeology, 2000). Renfrew does not have a problem with the act of collecting (identifying Old Master paintings and cigarette cards as hypothetical items exempt from his condemnation), but rather the practice of collecting specifically unprovenanced antiquities. But beyond just provenance, are there other issues at hand when it comes to looting and sales?

My conclusion is not that this research proves that the sale of Middle Eastern antiquities is out of control due to a single incident or period of conflict (as satisfying a conclusion as that would have been). Rather, it is that the looting specifically is out of control. It is likely that some will make the counter-argument that until we see these artifacts on the market, there is nothing we can do, or perhaps even that until such objects turn up at an auction, there isn’t any real proof that damage to the cultural record is happening.

This is wrong - looting is happening now, and without more awareness, it will continue to happen until there is nothing left to be learned from the decontextualized and ravaged objects. Monica Hanna told me that “raising awareness is really what we need,” so please help SAFE spread the word. A community on Facebook called Egypt’s Heritage Task Force has done a tremendous amount of work to track and stop looting and destruction of heritage sites, and it is that cooperation that we will continue to need in the coming months.

You can also join SAFE’s latest campaign, Say Yes to Egypt, and read more about our efforts to raise awareness about the looting going on in Egypt here.

Why should import restrictions on antiquities from Cambodia be renewed?

Weeks before the gavel fell on New York’s Asia Week auctions, Nord Wennerstrom began raising questions about the “iffy provenance” of Khmer artifacts, echoed by Chasing Aphrodite’s post on its Facebook page “For sale at Asia Week auctions: tons of unprovenanced Khmer antiquities“.

Although the lack of published provenance (or ownership history) is not proof of dubious origin, it begs the question: if provenance does exist, what not publish it? For one thing, as Wennerstrom indicates, objects without clean, clear provenance simply do not sell well, if they sell at all. This is not a new phenomenon. But when will the auction houses (and consignors) catch on?

SAFE calls on all antiquities traders to face the fact, and keep in mind the phrase caveat emptor: complete published provenance is good business.

Since 1983 the U.S., has been party to the 1970 UNESCO Convention, which prohibits and prevents the Illicit Import, export and transfer of ownership of cultural property. Legislative implementation occurred in 1987 with the passage of the Convention on the Cultural Property Implementation Act, which requires bilateral agreements with other parties to the Convention. It is important to note, that such agreements cover specific categories of antiquities. not ALL antiquities, and are renewable every five years. They are NOT outright embargoes, or bans, as some opponents would describe them.

As the U.S. considers whether to renew its Memorandum of Understanding (MoU) with Cambodia, SAFE examines the reasons why the MOU was originally signed and why it must be renewed. In this overview, we lay out what is at stake, Cambodia’s endangered cultural heritage, US market demand, Cambodia’s response and public support.

SAFE encourages the U.S. upholds its obligations as a member of UNESCO and confirms our support for important restrictions.

Experts lend opinions to the discussion of unprovenanced antiquities

The New York Times reported on Tuesday, July 10 about the growing tension over new guidelines “making it more difficult for collectors of antiquities to donate, or sell, the cultural treasures that fill their homes, display cases and storage units.” As museums and auction houses react to recent measures taken by the U.S. to stem the illicit antiquities trade, they are increasingly reluctant to acquire items with no documented provenance prior to 1970, the benchmark year the international community adopted in the 1970 UNESCO Convention.

Neil Brodie Neil Brodie

Many collectors claim they are being treated unfairly and are increasingly depicted “as the beneficiaries of a villainous trade.” However, SAFE Beacon Award winner and former Director of the Illicit Antiquities Research Centre at the University of Cambridge, Neil Brodie, dismisses these claims saying, “Collectors know that without provenance it is impossible to know whether an object was first acquired by illegal or destructive means.” Dr. Brodie is a Senior Research Fellow at the University of Glasgow and was instrumental in the formation of a new team that will study the illegal trade in antiquities. The team was recently awarded a £1m grant by the European Research Council.

Larry Rothfield, SAFE blog contributor and founder of the Cultural Policy Center at the University of Chicago, pointed out that lack of provenance is not necessarily the only reason these items cannot be sold. Their historical or aesthetic value can affect their sale for any number of reasons. “Even if the objects in question were not excluded from acquisition,” he said, “most of them would not be acquired anyway.”

The article further poses that the price of protecting the world’s cultural heritage may very well be that some items without provenance will remain in the hands of collectors who may be unable to sell or donate their treasures.

Larry Rothfield Larry Rothfield

SAFE appreciates our supporters for lending their voices to our anti-looting mission in so many ways. Read more articles by Larry on the SAFE blog.

What do you think? Should the US relax its guidelines and laws on provenance or is it more important to keep tightening the noose around the illicit antiquities trade? Is there a solution that allows objects to be donated to museums without encouraging looting and black market trade in the process? Join the discussion by commenting below or contacting us at info@savingantiquities.org.

Federal Court Judge rules that 10th c. Khmer statue remains at Sotheby’s … for now

In a 30-minute conference held on the 21st floor of the Daniel Patrick Moynihan U.S. Courthouse in lower Manhattan today, Judge George B. Daniels ruled against the government’s request for “a warrant to arrest” the 10th century Khmer sandstone sculpture, known as a Dvarapala, which is the subject of the in rem civil forfeiture action known as United States of America v. A 10th Century Cambodian Sandstone Sculpture [case number: 12 Civ. 2600 (GBD)]. If granted the warrant, the Government would transfer the sculpture from Sotheby’s warehouse to federal custody at another New York City warehouse. (Read about the case in the earlier post by Damien Huffer’s “Sotheby’s “Off-Base” on Cambodian Antiquities Again”.)

[The statue remains at Sotheby's subject to a restraining order that requires Sotheby's not to move the Dvarapala from its warehouse and to make it available for viewing by the government.]

The outcome of the conference was clear at the outset, when Judge Daniels told Assistant U.S. Attorney Sharon Cohen Levin that he “hesitates” to grant the government’s request to remove the statue from Sotheby’s warehouse at this time, because after he received the Government’s verified complaint, the Judge received an April 4 fax from Sotheby’s legal counsel Peter G. Nieman that challenges some of the government’s allegations. The existence of Sotheby’s April 4 fax, Judge Daniels said, required him to determine whether sufficient probable cause exists to grant the government’s request to remove the Dvarapala from Sotheby’s warehouse at this time.

In response, Ms. Levin said that no rule exists allowing Sotheby’s to send the Judge its April 4 fax, because Sotheby’s is not a party to the case, merely a temporary custodian of the property. Therefore the fax should not be considered in the Judge’s decision.

Ms. Levin then repeated the contents of her own April 4 fax to the Judge, citing Rule G of the Federal Rules of Civil Procedure, which states that in order to establish probable cause, the Government’s must: (a) file a verified complaint; and the verified complaint (b) must state the grounds for subject-matter jurisdiction, in rem jurisdiction over the defendant property, and venue; (c) must describe the property with reasonable particularity; (d) if the property is tangible, must state the location of the property when the action is filed; (e) must identify the statute under which the forfeiture action is brought; and (f) must state sufficiently detailed facts to support a reasonable belief that the government will be able to meet its burden of proof at trial — all of which the Government had done.

The Judge’s response: the Government’s verified complaint and two-page application for a warrant are “appropriate” but do not constitute probable cause for granting the Government’s request to remove Dvarapala from Sotheby’s warehouse.

Judge Daniels asked Ms. Levin whether there was any “urgency” in the Government’s request to remove the Dvarapala from Sotheby’s warehouse. Ms. Levin responded no. The Government does not expect Sotheby’s to violate the Judge’s restraining order (which requires the Cambodian statue be kept safe and secure in Sotheby’s warehouse and available for viewing by the Government).

Judge Daniels then questioned whether the Government of Cambodia had requested the US Attorney to request the warrant that would remove the Dvarapala from Sotheby’s warehouse. Ms. Levin said yes and agreed to send a copy of Cambodia’s request to Judge Daniels.



In a bid to establish probable cause, Ms. Levin repeated the basic elements of the Government’s verified complaint. She asserted that the type of warrant requested by the Government is necessary, and should not have been considered unusual or unexpected by Sotheby’s, as Sotheby’s has argued. Ms. Levin added that, in the past, the Government has seized such items under similar circumstances from Sotheby’s, therefore Sotheby’s was familiar with the process and should have known what to expect. In certain of those cases, Ms. Levin said, the Govemment has determined that Sotheby’s indeed acted as an honest broker and should retain physical custody of the disputed item until the matter is resolved. But this is not one of those cases, Ms. Levin continued, since the Govemment alleges here that Sotheby’s continued to market and attempted to sell the Dvarapala after Sotheby’s own paid expert told the auction firm that the statue was “definitely stolen.” The expert has been identified by the New York Times as Emma Cadwalader Bunker, who is a grand-daughter of former U.S. Ambassador to South Vietnam Ellsworth Bunker.

[The Government's complaint references the Khmer scholar Eric Bourdonneau, who located a temple known as Prasat Chen, located at a site known as Koh Ker, deep in the Cambodian jungle, and found the base (known as a Bima pedestal) on which the Sotheby's statue and its mate, a similar statue now at the Norton Simon Museum, once stood. The measurements that Bourdonneau made of the feet, which are still attached to the Bima pedestals at Prasat Chen, match the Sotheby's and Norton Simon statues, which are both footless.]

[The Government's complaint also quotes the Sotheby's expert as saying in an email to Sotheby's: "I have been doing a little catchup research on Koh Ker (the site from this the statue was reputedly stolen), and do not think you should sell the Dvarapala at public auction. The Cambodians in Pnom Penh now have clear evidence that it was definitely stolen from Prasat Chen at Koh Ker, as the feet are still in situ…Please do not give this report to anyone outside of Sotheby, as I often have access to such material, and don’t want to anger my sources. The two Dvarapalas must have stood close together and their feet remain, so it’s pretty clear where they came from. I think it would be hugely unwise to offer the Dvarapala publicly, and I would not really feel comfortable writing it up under the circumstances. It is also possible that the Cambodians might block the sale and ask for the piece back….I’m sorry as I had some exciting things to say about it, but I don’t think Sotheby wants this kind of potential problem.” Later, the same expert emailed Sotheby's again, telling them the opposite: that the Cambodians may not complain complain after all: "I think it best that you know all this," the expert writes, "but think that legally and ethically you can happily sell the piece." In a third email quoted in the Government's complaint, responding to Sotheby's request to show the sales description that the expert had written to Cambodian authorities, the expert refused, saying "There is NO WAY that I can send what I write to [the Minister of Culture]…. Sending the writeup specifically would be like waving a red flag in front of a bull.” Sotheby’s then notified the Cambodian Culture Minister of its intention to sell the Dvarapala in November 2010 but did not receive an immediate response.]

[The Goverment's complaint also references a January 20, 2011 Sotheby's internal email, which says in part: "You no doubt know that we will be selling a sculpture in our New York Asian sales that is known to have come from a specific site in Cambodia and or which we only have provenance from 1975... While questions may be raised about this, we feel we can defend our decision to sell it..." Finally, in a letter dated March 24, 2011, the day of the auction, Cambodian authorities demanded that the Dvarapala be removed from the sale, and that Sotheby's facilitate its return to Cambodia.]

Ms. Levin concluded her argument by asserting that Sotheby’s is neither an appropriate nor neutral third party in this case and should not be permitted to hold the Dvarapala, which it should have known was considered stolen under Cambodian law. She added that the Judge should reject Sotheby’s argument, that it had consulted the UNESCO art law database and found no cultural property laws for Cambodia dating back to 1900, as the Government complaint alleges, because the UNESCO database contains a disclaimer stating that users must perform their own due diligence.

[A simple Google search would have pointed Sotheby's to an article about Cambodia in Volume 17 of Cultural without Context, published by the MacDonald Institute at Cambridge University, references a 1925 Cambodian cultural property law that applies in this case, but does not appear in the UNESCO database].

Ms. Levin also noted the U.S. customs routinely cares for precious artifacts. [Seized million-dollar artworks and antiquities are stored at the heavily guarded ICE facility at The Fortress in Long Island City.]

While Ms. Levin was speaking, Judge Daniels thumbed through some papers and noted that Rule G(3)(b)(iii) states a warrant to remove the Dvarapala from Sotheby’s warehouse did not seem necessary, and is not required so long as a restraining order remains in place. So the Goverment’s request was denied. The next step, Judge Daniels said, is to proceed to a forfeiture hearing, which requires interested parties to file a claim no more than 30 days after the Government posts its final public notice. Therefore, the Court must wait until June 5 to determine whether there are any parties to the case other than Cambodia and Sotheby’s consignor.

“It makes sense for the parties to exchange discovery information in the meantime,” said Judge Daniels, and if more information and witnesses are needed, the parties should provide that no later than July 7.

The next conference in United States of America v. A 10th Century Cambodian Sandstone Sculpture is scheduled for Wednesday, June 20 at 10:30 AM.

 

 

EBay: Lip service is not enough!

As the holiday shopping season goes into full force, eBay – the leading online auction and shopping site – once again offers a dizzying array of objects listed under “antiquities.” Described as “early Neolithic,” “Bronze age”, “Tang Dynasty,” to “Khmer,” “Pre-Columbian,” “12th Century Djenne,” “Ancient Roman,” etc. these “antiquities” are advertised to originate from all corners of the world. They include coins, pottery, shards, pieces of “ancient” monuments, statues, textiles, jewelry of all kinds, so on and so forth. The prices offered would suit any budget, ranging from a mere penny to millions of dollars, usually with shipping thrown in for free!

According to eBay’s web site:

Listings for antiquities have to meet the following criteria:
·       Items have to be authentic.
·       Sellers have to include either a photo or a scanned image of an official document that clearly shows both the item’s country of origin and the legal details of the sale (it has to be approved for import or export).

Authentic artifacts, fossils, and relics have to meet the following criteria:
·       The item has to match the time-period category that it’s listed in.
·       If the item has been reworked or modernized in any way, this information has to be called out and fully described in the listing.

Reproduction of an artifact, fossil, or relic has to meet the following criteria:
·       The listing title and description have to clearly state that the item is a reproduction.
·       The item must be listed in the appropriate Reproduction or Fantasy category.

The site also lists specific restrictions on Native American artifacts, stipulating what eBay considers not allowed:

Describing items in the following terms because they make it hard for buyers to find authentic versions:
·       Alaska Native style
·       American Indian style
·       Native American style
·       Other descriptions that may suggest the item was made by a Native American

Are these guidelines are being followed? We invite our readers to take a few minutes to peruse the eBay site and see for themselves.

In 2002, Christopher Chippindale & David Gill said: “eBay does not closely supervise what is offered” in their seminal study on the subject “On-line auctions:  a new venue for the antiquities”. Nine years later, has anything changed?

It is high time for eBay (and its many counterparts) to put action behind its own policies and guidelines. Posting them on the web site alone simply does not suffice.

Reflecting on Seized Antiquities from 2009

In 2009 three antiquities were seized from a single New York auction-house: one just prior to the sale, and two subsequent to it (after being sold for c. $120,000). The auction-house co-operated fully in 2009 and subsequently stated (over the later seizure) that “the transparency of the public auction system combined with the efforts from the U.S. ICE and foreign governments, in this matter, led to the identification of two stolen artifacts”.

Earlier this month (May 2010) the same spokeswoman stated that “we do not sell works that we have reason to believe are stolen”.

Presumably any objects that have parallel collecting histories (“provenances”) to those seized in 2009 will be dealt with in a similar fashion.

Image
Two of the pieces reported to have been seized in New York during 2009 [ICE].

Geneva… Singapore… now Red Hook?


Known for its “industrial charm”, New York’s Red Hook section in Brooklyn will soon be home to Christie’s Fine Art Storage Services–a subsidiary of the auction house. In Wall Street Journal’s article “The Ultimate Walk-In Closet”, Kelly Crow questions if Christie’s “is walking a delicate line”: balancing clients’ desire for confidentiality and customs’ desire to “deter potential smugglers and money launderers from hiding assets or stashing stolen or looted works.”

According to Crow, “Christie’s said it will run credit checks on customers and check stored items against registries of stolen art, but added that it can’t police everything it brings into its new warehouse.”

In light of recent events in New York and London where stolen objects were nearly auctioned off undetected, one can only hope that auction houses will check more thoroughly where items come from while providing safe storage for them.

Stolen Indian Statue Sold in New York, Despite being on Interpol Stolen Art Database

Interpol news 22 April 2010, The statue of two Asian deities was stolen in September 2009 from the ruins of a temple in Atru in the Province of Rajasthan in Western India. At the request of the National Central Bureau (NCB) in New Delhi, the stone sculpture was added to INTERPOL’s Stolen Works of Art database. Despite that, it was sold by an ” international auction house having bases in New York and London”. It was only located in New York after it was spotted by somebody in New Delhi featured in a magazine advertising its sale. By this time the object was already in the port of New York while being prepared for shipment to England. In the nick of time, the sculpture was seized by US Immigration and Customs Enforcement agents (on Friday 16 April), and Indian and US authorities are now liaising over the return of the statue.

While the inclusion of the statue on INTERPOL’s Stolen Works of Art database did not directly lead to its identification, the fact that an object is recorded does help facilitate and speed up investigations by involved countries,” said Karl Heinz Kind, Co-ordinator of INTERPOL’s Stolen Works of Art unit at its General Secretariat headquarters in Lyon. “This also underlines the necessity for auction houses and all those dealing in cultural property to regularly check INTERPOL’s Stolen Works of Art database, which is publicly available and free of charge, to ensure that they avoid taking possession of stolen goods,” added Mr Kind. INTERPOL’s Stolen Works of Art database has been available to the public since August 2009, and now has more than 1,300 individuals currently registered for free access.

It seems though from recent news items that there is very little evidence than major auction houses are at all concerned about where the items they sell come from.

Photo: the stolen relief seized at New York Airport.

Regulating sales of artefacts in Britain soon?

The advocates of a free and unregulated market in portable antiquities frequently point to as the pattern they wish would be emulated globally. There seems to be a perception in the collecting community – especially in the USA – that in the United Kingdom there is some artefactual free for all and the heritage is up for grabs. The liberal laws of Britain are held up as a model which, portable antiquity dealers and their supporters say, other nations should be encouraged to adopt, thus freeing more antiquities for sale to an expanding market. According to one collecting advocate who is also a dealer in portable antiquities: “The UK has the most enlightened antiquities laws in the world and that if other nations were even half as civilized and as wise, there would be no significant looting problems [...] thus, I do not feel any obligation to help enforce what I perceive as unwise and unenforceable restrictive antiquities export laws of source states, always providing that importation of artifacts into the USA is licit under US law [...]“.

The launch in London today of the Final report of the Strategic Study on illegal artefact hunting (which also considers the trade in illicitly-obtained artifacts in Britain) seems to herald an important change in public attitudes and policies towards the British market in portable antiquities. For the first time in many years the British press came out with a barrage of unfavourable publicity for the irresponsible artefact hunter and collector. It seems that very soon the laws that US dealers find so welcome are going to change.

The report depicts the scale of the problem of looting as serious. It is clear that despite all the “liaison”, there remains a hard core of criminals who are intent on profiting from sales of stolen finds, often obtained at night during well planned and organised raids where anyone who stand in their way is threatened by physical violence. The report recognizes that there are limits to the degree public education will have an impact on this group of individuals and halt the damage they are doing to the archaeological heritage. As the result of its analyses, the report concludes that the motor for this activity is the current no-questions-asked market in portable antiquities which exists in Great Britain. The conclusion is that the most effective means of dealing with the problem of illegal artefact hunting in the UK is to close the loopholes that allow them to find a market for the commodities they produce to make the venture worthwhile. Removing the ability to profit financially will clearly reduce the motive for these criminals to operate.

Britain therefore will be seeking ways to regulate the local antiquities market, in particular the internet market in antiquities. In particular a vivid interested is being taken in the regulations reported here last year introduced on eBay in Germany, Austria and Switzerland which have shown that the auction house is prepared to take stricter action than has been the case so far in the UK. The Council for British Archaeology and Portable Antiquities Scheme are now suggesting that Britain should be pressing eBay to follow suit in the UK to close down the possibilities of using the portal as a means of trading illicitly acquired material.

At the launch of the Report today it was announced that under discussion is the possible introduction of a new criminal offence for a person to deal in such objects without being able to produce a clear modern provenance. This reform in attitudes and legislation would introduce the necessary transparency into dealings in cultural objects and ensure prospectively that persons dealt only in such objects with a recorded and substantiated background. We look forward to subsequent developments.
photo: Black market coins

Ivory tower passivity

A week ago there was good news in conservation circles which in the view of some of us has potential significance for the antiquities trade. An announcement was made that since a lot of fresh material was dishonestly being passed off as old ivory, from the new year a major Internet auction portal was banning the sale of objects ivory altogether. This was a recognition that the poaching is directly encouraged by the ease with which illicit products can be misrepresented as legitimate and bought and sold globally. In this the Internet auction and sale sites play a major role – the campaign slogan called it “killing by keystrokes”. The parallels between the unregulated antiquities market and the dismembering of the world’s archaeological record as a source of collectables for entertainment and profit is clear.
In a blog posting last week I asked where are the archaeological and heritage lobby groups insisting that the same sales outlets “take the same sort of measures to protect the world’s archaeological heritage from being similarly dismembered?” Still sleeping it seems. In Britain for example organizations concerned with the conservation of the archaeological resource have been slow to take up the torch. The Council For British Archaeology has said nothing on the topic yet, the Institute For Archaeologists (as it now is) likewise, the Association of Local Government Archaeological Officers UK (ALGAO) also. From past history RESCUE seems unlikely to be concerned. The Portable Antiquities Scheme has so far made no public mention that it intends to pursue a similar policy for documentless portable antiquities. On the Britarch archaeological discussion forum, there has been virtual silence on the issue. Only one archaeological forum in Britain has raised it. On the British Archaeological Jobs & Resources (BAJR) forum Scottish pro-
collecting archaeologist David Connolly (‘BAJR’) calls for a ban on the sale of antiquities without properly documented provenance. He writes:

It seems that Ebay can ban sales if it comes under enough pressure… so what about antiquities? […] Come on EBay… you know you can… And no… I don’t mean NO sale… I mean properly regulated and transparent.

The point is however that its no use calling on eBay “come on eBay, you know you can” without a strong, persistent and loud lobbying campaign from those who care enough to mount one – like the conservationists fighting for the elephant. Would British archaeologists actually lobby for this, or are they content to leave alone the thoroughly disreputable state of the home antiquities market for fear of alienating the “metal detectorists” who currently sometimes bring them finds to look at?

At the moment it is independent organizations like SAFE and Heritage Action in the UK which are actively calling for something to be done, and professional archaeological organizations like those mentioned above are sitting back passively almost as if they are waiting for the fuss about portable antiquities collecting to stop. Where are the successors of the campaigning archaeologists of the so-called “Rescue Years”?

Should ransom be paid for stolen art?

In Stop the appeasement of art and antiquities thieves (Globe and Mail, July 5, 2008) Geoffrey Clarfield, former curator of ethnography at the National Museums of Kenya, writes “art theft seems to have become a form of proxy kidnapping.”

Clarfield continues: “Our publicly funded museums and private auction houses have encouraged the illegal trade in antiquities by buying imported antiquities and muddling their provenance. Anyone who buys antiquities smuggled out of Iraq is indirectly financing the civil war there.”

Clarfield concludes: “If we continue to appease thieves, smugglers and terrorists, we can be sure that more of our museums and galleries will be plundered and held for ransom. By doing nothing we will be giving a free hand to organized crime in our own and other countries.”

What do YOU think?

Sotheby’s Auctions Rare Antiquities

Last month, two major sales of antiquities took place at Sotheby’s, New York. The sales were remarkable not only in the prices fetched at auction, but also in the fact that both went to private collectors.

As reported in Time Magazine (12/12/07), a Mesopotamian miniature sculpture of the goddess Inanna as a lioness, the so-called Guennol Lioness, was sold to an anonymous English bidder on 12/5/07 for a staggering $57.2 million. According to one observer, “The transaction set a world record for any antiquity and sculpture sold by an auction house”). The sculpture, which dates to c. 3000-2800 BC, is considered to be an exceedingly rare representation of the goddess, known also as Ishtar, and at 3 ¼ inches high, is a marvel of miniature carving.

Sotheby’s also auctioned a rare copy of the Magna Carta to businessman David Rubinstein, for $21.3 million (BBC News, 12/19/07). The copy, one of only 17 extant, came from a private collection.

What neither of these news reports addresses, however, is the question of the ethics involved in auctioning pieces universally acknowledged as rarities to private owners. In fact, the Time article’s main thrust was towards prospective collectors of antiquities, or the “über-rich”, as the article dubs them. Antiquities, according to the article and to John Ambrose, an antiquities dealer and founder and director of Fragments of Time, Inc., are a good investment opportunity. The concluding line of the Time article should give us pause; “. . . no matter how ornate a stock certificate might be, an Egyptian amulet is always going to look better in your living room display case.”

Is this the message the public should be hearing with regard to antiquities – their price tag, and their potential investment value?

Although Mr. Ambrose did not mention the issue of provenance in his Time interview, in a 12/15/07 online article, he discusses provenance of antiquities – as one of the three essential “value components” a collector should look for when purchasing antiquities, the other two components being quality, and condition (See The Time Magazine Article: Thoughts That Didn’t Make it into the Article on Collecting Antiquities ). Provenance, according to Mr. Ambrose, may be assured to a potential collector by a statement in a catalogue published by a reputable dealer.

What is so troubling about these articles, let alone the sales of the items themselves, is that the issue of private ownership vs. public access is never addressed. How does the public gain access to the common cultural heritage of mankind, when it is privately owned? What obligation does a private owner have to providing public access to such valuable works? To give credit to the Magna Carta’s new owner, Mr. Rubinstein, he says that he considers himself just the “temporary custodian” of the document, and plans to keep it on public display at the National Archives, where it has been since 1988. Public access to this precious document appears safe, for now. But what will become of the Guennol Lioness? Will it, too, be put on display by its new owner, or will it disappear from public view?

This is exactly the problem addressed in Marina Papa Sokal’s excellent essay, “Antiquities Collecting and the Looting of Archaeological Sites (published in the Proceedings of the Second Annual Ename International Colloquium “Who Owns the Past? Heritage Rights and Responsibilities in a Multicultural World”, Ghent, Belgium, March 22-25, 2006). One of Sokal’s essential arguments is that “Private collecting, by definition, does not serve the interest of the general public” (Sokal, p. 3). Public access to private collections under the best of circumstances would be problematic; might require changes in legal codes addressing private property rights; and, in fact, would mostly be unworkable. In other words, private art and antiquities collections are just that – private. Museums, on the other hand, are specifically designed to educate the public, to permit scholarly study, and to guarantee a reliable degree of safety and preservation to artifacts. Knowledge is kept in the public domain in a museum; it is restricted in a private collection.

Contrary to the opinions expressed in the Time article, antiquities should not be lumped in with artworks as an investment option; antiquities are intrinsically valuable for the knowledge they may transmit about long-vanished cultures, for information about technology, for historical details, and so forth. In fact, Sokal draws a sharp line between art collections and antiquities collections. Antiquities, she notes, are a finite resource: “Of course, all art by non-living artists is a non-renewable resource; but for no other kind of artwork is context so important as for antiquities. The historic (as opposed to merely aesthetic) value of any ancient artifact resides principally in its relation to its original context” (Sokal, p. 4). Sokal observes, “. . . many objects in private collections have no provenance, thus vastly reducing their scholarly value . . .” (Sokal, pp. 5-6). Further, “fashions” in collecting have been proven to stimulate selective looting of archaeological sites in order to supply the private antiquities market; “. . . as long as there exists a private market in archaeological artifacts, there will be an incentive for looting and plunder” (Sokal, p. 6).

And as long as rare antiquities can command the kind of well-publicized prices that the Sotheby auctions have demonstrated, there will continue to be a keen interest in “trading up” private collections. The archaeological community, together with SAFE, should give serious consideration to addressing as a unified body the ethical ramifications of these transactions. (CREDIT: Jacob Silberberg / Reuters)

Pre-Columbian “art” and Christie’s

Roland Lloyd Parry has reported today (September 6, 2007) in The Art Newspaper that “Christie’s axes pre-Columbian sales”.

He quotes Christie’s spokeswoman Sara Fox, “Our decision was made out of pure business considerations, not as a reaction to lobbying by foreign governments”.

In spite of the announcement the Christie’s website continues to announce:

“Previously regularly held in Paris, Pre-Columbian Art auctions have returned to New York and will be held twice a year, in May and November.

Interest among worldwide buyers and collectors in Pre-Columbian art continues to grow steadily as is demonstrated by the world auction record prices Christie’s has achieved such as $1.1 million for a Pre-Columbian work with a Mayan Jade Plaque (New York, 2004); $332,050 for a Mayan Codex Plate (Paris, 2004); and $124,679 for a Chimu Silver Figure (Paris, 2003).

The department is pleased to answer any inquiries about the market conditions and arrange insurance and estate valuations.”

But not for much longer.

Such news comes in the wake of recent returns of archaeological material to Peru, as well as the revised memorandum of agreement between the US and Peru (June 2007). (For full details.)