Legal Issues

LEGAL BRIEFS - A Little Bit of Provenance Goes a Long Way

by Ron McCoy

The last time I visited southern Mexico’s state of Yucatán and its spectacular, ancient Maya ruins, Don McLean was singing about “the day the music died” on the radio, while in the cantinas of Mérida, the colonial-era capital, folks laughed at plans to create a tourist destination at a coastal backwater off to the east called Cancún.  Meanwhile, what drew me to the place was the extensive, widespread evidence of the ancient Maya civilization, which attained its Classical florescence around AD 250-900 and collapsed about a thousand years ago.

Pyramid at Tulum
via Wikimedia Commons

Traces of the Maya, both large and small, extravagant and subtle, were everywhere:  abandoned city complexes with attendant temple pyramids; buildings boasting massive stucco facades displaying supernaturals’ baroque visages; palace walls decorated with brightly-painted murals promoting the established order; monumental carved stelae; outdoor ball-courts which served as theaters for human sacrifice; jade and shell jewelry, obsidian and flint scepters, and a host of other artifacts.

For me, the Maya country became one of those places I wanted to see more than once, if possible.  But the usual – life – took over, so it was only recently I made plans to return to Yucatán.  But it had been forty-six years since my visit and some catching-up was in order if I hoped to really appreciate what I would see.  As I dove into piles of recent literature about the Mayas, I realized this self-help immersion project was both a good and not so good idea.

On the plus side, during the time that passed between my initial visit to Yucatán and the present, scholars have conducted a vast amount of work on the ancient Maya and their material culture.  Over the years, intrepid archaeologists seeking knowledge and determined chicleros scouring the boondocks for gum-producing sapodilla trees peeled away vast swaths of the all-but-impenetrable Mesoamerican forests and jungles, revealing many hitherto “lost” sites.  Clever, exquisitely patient epigraphers pursued their investigatory search for the meanings of the calculiform glyphs Mayas carved into their architecture and painted on the bark paper of their screen-fold books; as a result, something like three-quarters of those symbols can be read.

Not surprisingly, some crucial “truths” about the Mayas widely embraced back in the early 1970s have joined the roster of some of humanity’s quainter, more curious beliefs and conceits.  For example, the notion of ancient Mayas living within an almost pacific culture composed largely of bucolic milpa tenders and blissed-out astronomer-priests (I’ve only slightly exaggerated the picture) has been supplanted by profoundly different interpretations.  In terms of art, research has focused on methods of production, style, materials, and most intensely on the dizzyingly diverse tableaux carved on Maya monuments or painted on Maya walls and pottery.  The iconography is stunningly complex, its meanings still poorly understood.  On the other hand, some propositions are simply ridiculous; “ancient astronauts” spring immediately to mind.  Others, like Mel Gibson’s film Apocalypto (2006), telescope history in such a way as to produce just the sort of simplified overstatement and comforting presentism that quickly finds a secure niche in popular culture.

A fair amount of territory separates these extremes: those blissed-out astronomer-priests occupying one end of the continuum, and, just across the way, fantastical space invaders, Noble Savages, and a well-nigh crazed culture in thrall to psychotics and sociopaths.  Somewhere between those poles can be found that enormous spectrum composed of what we call “reality.”  Over the years, we have learned so much more about that reality than many ever believed possible.  In other words, ancient Maya culture and its expressions were far more complex and nuanced than we can ever know.

As I said earlier, my Maya research assignment proved both a good and a not so good idea.  Basic common sense alone would surely put a checkmark in the “good” column.  After all, is it not (generally speaking) better to know more than less?  And is it not also true that the more you learn – really learn – the better positioned you are to realize how little you actually know?  Will not the acquisition of new knowledge spur a desire to acquire additional knowledge?  Well, that’s the theory.  So, I report back: On the not-so-good front, the sheer volume and tonnage of truly solid, provocatively interesting material reflecting scholarly research in the field proved, like the Mesoamerican selva, almost impossibly daunting. (It’s also informative, fascinating, and inspiring.) 

Long ago, an old school thespian told me that when Shakespeare wrote Hamlet the bard gave his character Polonius the best lines.  Of these, “to thine own self be true” may be the most memorable.  In that spirit, I knew I wasn’t going to attain anything beyond basic illiteracy when it came to the Mayas’ ingenious glyphs; nor would I approach Copernican heights in comprehending their complex mathematical and astronomical practices.  Having spent much of my professional life immersed in the drawings and paintings of Plains Indian warrior art, I settled on what seemed a reasonable approach: getting a handle on “reading” the culture’s graphic presentation of itself to better appreciate its underpinnings.

Now, of course I know ancient Maya art is, as a body of work, much sought after by collectors both public and private.  The high status afforded truly extraordinary pieces in public exhibitions is matched by the price similar objects command in the private realm.  It is clear that in at least one crucial respect Maya art is exactly like that of every other culture whose material legacy attracts the interest in the tribal art world’s universe of custodians and curators, buyers and sellers.  And that, after a couple of turns around Robin Hood’s proverbial barn, brings us to the subject at hand: the provenance situation. 

In the art world, “provenance” and “provenience” are sometimes used interchangeably.  The words look and sound similar, but they are fundamentally different and by no means synonymous.

Archaeologists (and others) use “provenience” when discussing the “three-dimensional context (including geographical location) of an archaeological find, giving information about its function and date.”[1]  “Provenance” refers to the history of the piece, basically where has it been and when?  So, not to put too fine a point on matters, provenience documents (through persuasive written, photographic or other evidence) where and when an object was found and contextualizes it; provenance tells us where the object has been over time.  Ideally, this means from the time it was created up to and including the present.  However, in the real world, most of us would probably be delighted and reassured knowing as much of its documentable history as can possibly be recreated.

Along these lines, this column recently reported on a notice of intent to repatriate a Sisseton Can Otina (Tree or Forest Dweller) figure under provisions of the Native American Graves Protection and Repatriation Act of 1990 (NAGPRA).  The State Historical Society of North Dakota stipulated it had something of a mystery object on its hands, summing up its provenance: “On an unknown date, an unknown number of cultural items were removed from an unknown site in an unknown location.”[2] 

I cite this example as an honest expression of the obvious: aside from being present and (more or less) accounted for (kind of), the Tree Dweller effigy has no history, as in “it just grew like Topsy.”  “When life gives you lemons,” a wise observer of the human scene noted long ago, “make lemonade.”[3]  Which is exactly what the historical society did: lacking any documentable history for the piece, the institution simply made that fact clear.    

Hopefully, I’m not belaboring the point by noting that questions about provenance can seem akin to those you’re asked at the doctor’s office, the ones about your pain with possible answers taking the form of a diagram: a smiley face at one end and a very sad one at the other, with a bunch of expressive mugs between.  Thumbs up, thumbs down, questioning looks, the picture often turns murky and one realizes the importance of seeking the good in the absence of the perfect.  In other words, some solid provenance is always better than none.    

Stela with Queen Ix Mutal Ahaw
photo by: Daderot [CC0], via Wikimedia Commons

Attenuated provenance is common in the field of tribal art in general, so let’s briefly look at an example from the Maya realm.  San Francisco’s renowned M. H. de Young Memorial Museum houses a stunning seven-and-a-half-foot tall, nearly four-feet wide carved limestone Maya stele depicting “the powerful queen Ix Mutal Ahaw…performing a ritual to contact the gods.”[4]  This spectacular, knock-your-socks-off piece contains glyphs referencing an AD 761 date and imagery of the lady in question festooned in a towering headdress, carrying important ritual paraphernalia, and contending with a writhing serpentine form from which emerges the face of a supernatural.  The museum tells us the stela comes from “Mexico or Guatemala.”[5]

This raises the question of where, exactly, this piece came from, who recovered it, and how did it make its way across the border into the United States?   For the viewer, it is a great pleasure to know this stela exists as part of the canon of world art.  That uplifting feeling is ameliorated by the realization that this piece lacks meaningful context beyond the fact of its existence. This situation prevents us from attaining a better appreciation of the monument; it probably also strips away much of the monument’s meaning.

This gap in our knowledge, which undermines fullness of appreciation, might be expected to raise some warning flags.  After all, when “the expertise (connoisseurship) of the dealer and/or collector, rather than actual provenience (origin) or provenance (history), is the measure of authenticity, then truth is, like beauty in the eye of the beholder.”[6]  You don’t have to be a fortune teller or visionary to conclude following that path is a perilous business.

The artificial, culturally-dictated distinction between “tribal art” and other art continues its ongoing, overdue, and welcome erosion.  As more parochial perspectives filter off from the mainstream, the degree to which pieces formerly marginalized acquire status as objects of interest can be expected to increase.  This should be especially so when such objects arrive on the scene not just with great stories but documentable histories.  And it really makes no difference whether the objects in question came from gallery purchases, auction acquisitions, or were hoicked up Santa Fe’s Canyon Road in a dark green plastic garbage bag clutched by a twitchy runner.

Please note: This column does not offer legal or financial advice.  Anyone requiring such advice should consult a professional in the relevant field.  The author welcomes readers’ comments and suggestions, which may be sent to him at legalbriefs@atada.org

Once you move beyond the realm of tchotchkes decorating a mantlepiece, some sort of documentation for objects in a collection is a good idea.  Otherwise, when the time comes that you are no longer involved in witnessing the denouement, others, lacking essential information about the object, may regard your treasures as, well, tchotchkes or, moving slightly upscale, tools of liquidity.

Click for Endnotes

[1] “Introduction to Archaeology: Glossary,” Archaeological Institute of America (2018), https://www.archaeological.org/education/glossary#p

[2] “Notice of Intent to Repatriate Cultural Items: State Historical Society of North Dakota,” Federal Register (June 14, 2017), https://www.federalregister.gov/documents/2017/06/14/2017-12297/notice-of-intent-to-repatriate-cultural-items-state-historical-society-of-north-dakota-bismarck-nd

[3] That was not, as is often thought, businessman’s muse Dale Carnegie but Elbert Hubbard (1856-1915), author of the Spanish-American War period essay “A Message to Garcia” (1899) and founder of the Arts and Craft movement’s Roycroft artisan community in eastern New York.  Hubbard and his wife Alice evidently stayed true to this advice: they died, together, aboard the RMS Lusitania when a Geman U-boat torpedoed the British liner off the Irish coast in 1917. “Elbert Hubbard Papers, Manuscript Group 17,” Special Collections and University Archives, Indiana University of Pennsylvania (Nov. 5, 2014), 3-4, http://libs0500.library.iup.edu/depts/speccol/All%20Finding%20Aids/Finding%20aids/MG%20or%20Col/MG17Hubbard.pdf

[4] “Inside Our Collections: Rebirth and Renewal,” de Young Museum (July 25, 2018), https://deyoung.famsf.org/inside-our-collections-rebirth-renewal.

[5] Ibid.  For an intriguing account of the stela’s acquisition, see Kathleen Berrin, “Fine Arts Museums of San Francisco Acquire Maya Stela: Collaboration with Guatemala and Mexico Sets New Standards for Museums,” PARI [Precolumbian Art Research Institute] Online Publications: Newletter #28 (June 1999), http://www.mesoweb.com/pari/publications/news_archive/28/fine_arts_stela.html

[6] Nancy L. Kelker and Karen O. Bruhns, Faking Ancient Mesoamerica (London: Routledge, 2016), n.p. (Kindle electronic edition).

Bill Introduced to Regulate Export of U.S. Tribal Art

Native American and Native Hawaiian Cultural Heritage Protection Act of 2018

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New Mexico Congressman Steve Pearce has introduced a bill, H.R. 7075, the “Native American and Native Hawaiian Cultural Heritage Protection Act of 2018,” that will provide tribes with assurance that cultural items obtained in violation of U.S. laws will not be exported beyond the reach of legitimate tribal claimants.

 In a release on the day of introduction, October 19, the nation’s largest tribal art dealer organization, ATADA, thanked Congressman Pearce for his leadership in bringing together the tribes and art market participants to craft legislation that was “balanced and properly addresses the tribes’ valid claims while recognizing the importance of a vibrant art market to New Mexico’s economy.”


ATADA is working for you! Help us continue to defend dealer and collector rights.

Bill Reaffirms the Law and Focuses on Stopping Illegal Trade

The key purpose of the Pearce bill is to halt the exportation of Native American and Native Hawaiian items obtained in violation of ARPA, NAGPRA or the 1906 Antiquities Act. H.R. 7075 requires certification and review (or self-certification for low value shipments) for export of all “covered items” which are published in a list in the Federal Register; the exporter must affirm that to the best of his or her knowledge, the objects are not acquired in violation of any U.S. law.

Under U.S. law, the vast majority of Native American and Native Hawaiian objects, including many culturally important items, may be lawfully owned by individuals and institutions. Others may not: human remains may never be sold, nor items taken from federal or Indian lands without a permit. Also, certain religiously important objects and items communally owned that are categorized as cultural patrimony under the 1990 Native American Graves Protection and Repatriation Act may be claimed by tribes from museums that hold them, if the museums receive federal funding.

Lawful Trade Recognized

 As ATADA noted in its release, “Native American art has been collected for over a century, and holds pride of place in American museums and private collections.” ATADA stated that tens of thousands of small U.S. businesses and tribal enterprises are dependent on the legal trade in Native American art and antiques. It stressed that international and domestic cultural tourism, especially to New Mexico and the Southwest, supports hundreds of thousands of jobs and makes up at least 10% of New Mexico’s economy.

H.R. 7075 states its intent to “facilitate the export of lawfully possessed Native American and Native Hawaiian items.” This purpose sets the Pearce bill apart from another bill that is pending in the Senate, known as the “STOP Act,” S. 1400, which fails to place the burden of proof on the government to show an object is unlawfully acquired. The proposed STOP Act would also make it official government policy to “voluntarily” return all cultural items to tribes.

 

How is Due Process Protected?

H.R. 7075 and other bills dealing with Native American cultural items previously introduced in both House and Senate have been bedeviled by an intractable problem: how do you write a bill making it illegal to export objects because they are unlawfully acquired under existing U.S. laws, when the public has no way to specifically identify what objects are unlawful to export?

For example, under the Archaeological Resources Protection Act (ARPA), what makes an item unlawful is not based on what it is but instead on where it was found - whether it was taken without permission from tribal or federal lands. For items in circulation in trade for decades, this information is almost never known.

Under NAGPRA, it is not only essential to know when an object was originally acquired - but tribes are often unwilling to identify what items are sacred or which they consider inalienable cultural patrimony. The tribes treat this as privileged information.

However, by setting forth remedies short of seizure and by penalizing “bad actors” who try to export items knowing that they were illegally acquired, H.R. 7075 attempts to address the absence of due process present in other bills.

 

Which Items Will Require Certification?

It remains uncertain which types of Native American items will actually require export certification under H.R. 7075. The bill sets no value threshold, or threshold related to rarity or “importance,” unlike export certification systems in Canada, Europe, Japan, or the UK.

The tribes’ reluctance to identify which objects are sacred or ceremonial – and which might require certification – means that the bill’s future effect is not yet clear. The bill states that the Secretary of the Interior will publish a notice in the Federal Register that will include “a description of characteristics typical of covered items,” [requiring certification] which nonetheless “shall be sufficiently specific and precise to ensure export certification is required only of such covered items and that fair notice is given to exporters and other persons as to which items require export certification.”

Therefore, the breadth of the list of “covered items” which will be subject to export certification will determine how great a financial and time burden is placed upon commercial and personal exports of Native American objects. This list was not defined in the bill.

H.R. 7075 does acknowledge that objects made for commercial purposes “generally” do not qualify as a covered item requiring certification.

 

Requesting Assistance from Other Nations

A further “purpose” confirms the authority of the President to request agreements or “provisional measures” subject to the limitations of Article 9 of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property to obtain the return of objects obtained in violation of ARPA, NAGPRA, and the Antiquities Act. This may assist the tribes in obtaining return of Native human remains still in foreign museum or scientific collections.

 

How will exports of Native American and Native Hawaiian goods work?

Exporters of all Native American and Native Hawaiian goods that are listed in the Federal Register as “covered items”, regardless of value, must submit an online application for export certification though the U.S. Customs and Border Protection’s AES online export system.

If the exported items are Native American or Native Hawaiian “covered items,” the exporter must fill out an attestation form stating that “to the best of the applicant’s knowledge and belief, the applicant is not exporting a Native American cultural item obtained in violation of the Native American Graves Protection and Repatriation Act (25 U.S.C. 3001 et seq. or 18 U.S.C. 1170), a Native American archaeological resource obtained in violation of the Archaeological Resources Protection Act of 1979 (16 U.S.C. 470aa et seq.), or a Native American object of antiquity obtained in violation of the Antiquities Act under section 1866(b) of title 18, United States Code.”

The proposed legislation will require only a limited AES filing for “covered items” of less than $2500 value, and an export certification document will be generated immediately on self-certification by the exporter.

However, the legislation does significantly broaden previous export requirements. Since July 2017, only commercial shipments of goods totaling $2500 in value or more have required online AES filings.

If a shipment that includes native American or Native Hawaiian “covered items” is valued at $2500 or more, there will be a 6-day time period for review of the proposed export by U.S. Customs and Border Protection and the Department of the Interior (which will provide information on the items being exported to tribes for review). With notice to the exporter, U.S. Customs and Border Protection can extend the review of an application for certification for up to 30 days if credible evidence of a violation of law is provided which requires investigation, after which certification will be either approved or denied.

 

A Federalized Voluntary Returns Program

In its release, ATADA stated that it was “proud that the principles of ATADA’s Voluntary Returns program, which brings important items of religious and ceremonial use back to the tribes, have inspired a similar federal program.” H.R. 7075 sets up a completely voluntary returns program for items that anyone wishes to donate to a tribe of origin.

The voluntary returns program is designed to cover a broad range of items desired by the tribes, regardless of whether the items are held in violation of any U.S. law. H.R. 7075 establishes two working groups as advisers/consultants for the voluntary returns program, one with tribal members and one that will include collectors, dealers and museums. The bill will facilitate returns by making “provision for tax documentation of deductible gifts of Native American items to Native American tribes and Native Hawaiian organizations,” which some tribes have been unwilling or unable to do on their own.

 

Enabling Tribes to Receive Forfeited Items and to Request Halting Legal Action

The bill also amends ARPA, NAGPRA, and the Antiquities Act, which until now have directed returns of all seized or forfeited items to the federal government, to permit such items to be returned to tribes. Another provision would allow a Native American tribe or Native Hawaiian organization to direct the Department of Justice to halt a legal action regarding a sale of an item (which might facilitate returns, particularly from overseas sales).

 

Summary:

1.     The bill requires that an exporter have knowledge that an object was obtained in violation of ARPA or NAGPRA for the exporter to be subject to penalties.

2.     There is no expansion of ARPA or NAGPRA except to enable returns of forfeited objects to tribes as well as to the federal government.

3.     The Secretary of Interior will publish a list of covered items requiring certification that will have a “description of characteristics typical of covered items,” however, the description must be “sufficiently specific and precise to ensure export certification is required only of such covered items and that fair notice is given to exporters and other persons as to which items require an export certification”

4.     The bill states that objects made for commercial purposes generally do not qualify as a covered item.

5.     All covered items require certification, but items under $2500 may be self-certified by filing an attestation form online through the U.S. Customs’ online AES system with immediate issuance of a certification.

6.     All covered items or groups of items $2500 or over require full processing through the AES system, certification shall be issued within 6 days.

7.     With notice to the exporter, U.S. Customs and Border Protection can extend the review of an application for certification for covered items over $2500 for up to 30 days if credible evidence is provided which requires investigation, after which certification shall be approved or denied.

8.     A “picture” of the covered items must be submitted with the application for certification for all items, regardless of value. The process for submission of a picture/photo is not determined.

9.     Information on the covered items included in the filings will be made available by the Secretary of the Interior to Native American tribes and Native Hawaiian organizations via a secure website or other method in compliance with AES procedures.

10.  Denial of export certification does not in itself enable seizure or in any way affect the legal status of an item under existing United States law.

11.  Whoever seeks to export a covered item without a required export certification but voluntarily returns the covered item to the Indian Tribe with a likely cultural affiliation prior to active investigation shall not be prosecuted for such violation with respect to the covered item. The process of obtaining an export certification does not qualify as active investigation.

12.  Any covered item that a person is attempting to export without an export certification shall be subject to seizure; a covered item seized under this clause for which credible evidence does not establish within 60 days that it was obtained in violation of U.S. shall be returned to the exporter but shall not receive an export certification.

13.  If credible new evidence is provided that indicates a covered item that received an export certification was obtained in violation of ARPA, NAGPRA etc., the certification can be revoked before export; if discovered after export, the export can be revoked only after seeking court approval.

14.  If the U.S. Customs and Border Protection denies an export certification, issues a Detention Notice, or seizes a covered item, the applicant shall, upon request, be given a hearing on the record. The provisions of 18 U.S.C. 983(c) shall apply to any forfeiture.

15.  An Indian Tribe or Native Hawaiian organization may submit a request to the Secretary of State that the US become involved in halting the international sale of Native American cultural items obtained in violation of U.S. law. Within 15 days the DOS shall contact the foreign state and the Department of Justice to transmit the request. In the case that an Indian Tribe or Native Hawaiian organization submits to the Attorney General a request that the Attorney General cease pursuing legal action with regard to the sale of the Indian Tribe’s or Native Hawaiian organization’s item, the Attorney General shall promptly cease pursuing such legal action.

16.  The Secretary of the Interior shall establish a federal framework for voluntary returns of items to tribes and convene working groups consisting of representatives of Indian Tribes and Native Hawaiian organizations, and a working group consisting of Native American and Native Hawaiian art dealers, collectors, and museums to advise the Federal Government on voluntary returns.

 

Definitions:

Definitions used by three U.S. laws are referenced in the bill. These laws serve very different purposes, and their inclusion is the bill is to segregate items obtained in violation of the underlying law. The definitions include:

(1) “cultural items” under the 1990 Native American Graves Protection and Repatriation Act (which primarily enable tribal claims to be made to these items when in federally funded museum collections),

(2) “archaeological resources” as defined under the 1979 Archaeological Resources Protection Act (which are unlawful to trade in if they were taken without a permit from federal or Indian lands), and

(3) “objects of antiquity” under the 1906 Antiquities Act. (This last term, “object of antiquity” was never defined in the Antiquities Act, and the lack of definition was the chief reason the Antiquities Act was held unconstitutionally vague in 1978 in the 9th Circuit.)

These different statutes’ definitions could, if very broadly interpreted, encompass virtually all objects made by Native peoples before 1918 under the ARPA definition (if taken from federal or Indian lands), and a quite broad swathe of items under NAGPRA, especially given that statute’s expansive definition of “cultural patrimony” as an “object having ongoing historical, traditional, or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American...”

However, trade in objects matching these descriptions is not unlawful – only trade in items of these types that were unlawfully obtained after passage of each statute.

This article is published concurrently on the Cultural Property News website.
This article and all other articles published by Cultural Property News or by ATADA are for information purposes only. They are not legal advice.

Update: Chinese Art and Antiques Dropped from US Tariff List

U.S. collectors, art dealers, and museums spared 25% art tariff

  The United States has imposed tariffs reaching 25% in 2019 on $200 billion dollars of Chinese goods, in a dramatic escalation of the Trump administration’s trade war with China. However, there was good news for the art community, as works of art, collector’s pieces, and Chinese antiques were among the very few items withdrawn from the tariff list.

 Over the last months, the Committee for Cultural Policy and Global Heritage Alliance researched and reported on the impact of the proposed tariffs.  Commenting on today’s announcement, Peter Tompa of Global Heritage Alliance said, “This decision shows that the U.S. Trade Representative listened and really understood the issues. The tariffs would not only have seriously damaged the ability of the U.S. art market to compete globally, but also harmed U.S. museum and public access to Chinese art and culture, and hurt hundreds of American small businesses.”

 Photo: China Galleries, Metropolitan Museum of Art, New York

Photo: China Galleries, Metropolitan Museum of Art, New York

“Taking art and antiques out was a good policy move as well as making total economic sense for the U.S.,” said Kate Fitz Gibbon of the Committee for Cultural Policy, whose research showed that China’s art monopoly would be strengthened by tariffs. “This is about more than money. Even at the height of the Cold War, the U.S. government understood that the international circulation of art and ideas promoted peace and positive relations.”

  Mark Dodgson of the British Antiques Dealers Association noted in a submission to the USTR, “The federal government of the United States does not tax the import of antiques. This enlightened attitude toward the art and antiques market has helped the United States to become the largest art market in the world.

 Together with other U.S. and international arts and art trade organizations, including the British Antiques Dealers Association, CCP and GHA provided written testimony to the United States Trade Representative (USTR). Tompa spoke in person to present these views at the hearings on the proposed tariffs; organizations representing over 5,000 art dealers worldwide submitted comments to the reviewing committee.

 Chief among the points made were that a tariff on antiques would please, not punish, the Chinese government and reinforce its global dominance of the Chinese art market. 

U.S. import restrictions already cover virtually all Chinese art and artifacts from the Paleolithic through the Tang period imported from China, as well as monumental sculpture and wall art over 250 years of age. The U.S. market in antique Chinese art is therefore dependent upon sourcing Chinese art from older collections held worldwide, which would also have been subject to the proposed tariffs. 

Although U.S. import restrictions – in place since 2009 – are claimed by China to be for the protection of ancient archaeological sites, in fact, they actually reinforce China’s monopoly on Chinese art. As Tompa told Cultural Property News, “A tariff will only drive more Chinese artifacts back to China, which is exactly what the State Department is doing with its import restrictions.”

The U.S. market for contemporary Chinese art also had a big win, as the proposed 25% tariff would have made it very difficult for U.S. dealers to compete in the global modern art market.

Tariffs of 10%, rising to 25% in 2019, were announced by the USTR on 5,745 of the 6,031 tariff lines on the list of Chinese imports initially proposed. The first tariffs will go into effect on September 24, 2018. The import categories removed from the tariff list included the following items of particular concern to museums, collectors, and the art trade.

9701.10.00
Paintings, drawings (o/than of 4906) and pastels, executed entirely by hand, whether or not framed.

9701.90.00
Collages and similar decorative plaques, executed entirely by hand, whether or not framed.

9702.00.00
Original engravings, prints and lithographs, whether or not framed.

9703.00.00
Original sculptures and statuary, in any material.

9704.00.00
Postage or revenue stamps, stamp-postmarks, first-day covers, postal stationery, and the like, used or unused, other than heading 4907.

9705.00.00
Collections and collectors' pieces of zoological, botanical, mineralogical, anatomical, historical, archaeological etc. interest.

9706.00.00 Antiques of an age exceeding one hundred years.

 All seven of these proposed tariffs were withdrawn. According to a USTR release, the reviewers “engaged in a thorough process to rigorously examine the comments and testimony and, as a result, determined to fully or partially remove 297 tariff lines from the original proposed list.”

China has a billion-dollar annual internal market in art of all periods that includes the same kinds of antiques barred from U.S. import.

A comprehensive study by Artnet and the China Association of Auctioneers showed that after the enactment of the original Memorandum of Understanding imposing import restrictions on ancient and antique Chinese art in 2009, the auction market for art and antiques in mainland China experienced 500% growth between 2009 and 2011. In 2011, the Chinese auction market surpassed all other countries in the world. Even in 2014, the year after the MOU’s first 5-year renewal, the fastest growing import into China was art, antiques, and collector items, which increased at a staggering 2281% rate.

 Clinton Howell of CINOA said of the proposed tariffs that, “Because the flows of antiques are currently into China, and not out of China, the measures will divert these existing old objects from the United States to other markets, such as Beijing or London or Paris. The main beneficiary will consequently be Chinese buyers, dealers and auction houses.”


*Article reprinted with permission from
Cultural Property News

ATADA Legal Committee Report - July 2018

 By Hoteen Klah 1867–1937 [Public domain], via Wikimedia Commons

By Hoteen Klah 1867–1937 [Public domain], via Wikimedia Commons

The busy show season is a time for ATADA members to be especially alert to legal issues. Please help others to be aware the legal rules and ethical guidelines that make for a responsible art market.

The pertinent ATADA Bylaws state as follows:

  • The Members of ATADA undertake not to purchase or sell objects until they have established to the best of their ability that such objects were not stolen from excavations, architectural monuments, public institutions, tribal communities, or private property.
  • ATADA shall work respectfully with tribal communities regarding the voluntary return of legally collected items to the tribes. ATADA supports the voluntary return of items known to be of important current, sacred, communal use to the Native American tribal communities from which they came, through the ATADA Voluntary Returns Program and other voluntary projects.
  • The Members of ATADA undertake not to acquire, display, or sell items known to be of important current sacred, communal use to Native American tribal communities. The ATADA Board shall establish guidelines with respect to specific items deemed of important current sacred, communal status and make those guidelines available to all ATADA members.
  • ATADA does not regard items made for commercial or individual use by Native American artisans as sacred or ceremonial, regardless of age.

See the ATADA Guidelines Regarding the Trade in Sacred Communal Items of Cultural Patrimony.
atada.org/bylaws-policies/

Why did ATADA establish internal guidelines? First, it’s the right thing to do. Second, responsible business behavior makes for a safer, more secure marketplace, and gives consumers the confidence they need to invest. Checking the provenance of objects and asking for their ownership history – in writing - is good business practice and the key to due diligence. No one, collector or dealer, wants to potentially spend years of their lives and hundreds of thousands of dollars defending themselves against a charge of trading in a dodgy object – simply because they did not take the time to investigate it.

The ATADA legal team is proud of its accomplishments. If ATADA was not working hard to protect your interests in Washington, then US Customs could today be asking every foreign tourist coming home from vacation to prove that their Indian art purchases weren’t sacred items. US museums would be worrying that there was a new, completely open-ended ‘standard’ for tribal claims outside of NAGPRA.

We wish we could be spending our energies urging the House and Senate to take positive steps for tribes by funding cultural education, building awareness (and building tribal Chapter Houses for the safety and preservation of ceremonial artifacts). These are positive solutions – and we make that case with legislators each time we meet. Unfortunately, those sensible goals require funding from an unwilling Congress. Instead, we’ve had to fight back against ill-considered legislation that will negatively impact the art trade, damage a vital industry that is key to the Southwestern tourist economy, and harm cultural life as a whole in the United States. Here are some of the pending bills and agreements that affect art collecting and the trade:

 

  • STOP

In May, the ATADA board met in Washington DC in order to meet with legislators to discuss the impact of the 2017-2018 Safeguard Tribal Objects of Patrimony Act (STOP), S. 1400 and H.R.3211. ATADA has outlined the bill’s flaws many times, through testimony and direct contacts with legislators –how it discourages all trade in Indian art, harming artisans and local economies, will destroy value in legally-owned private property, and has a built-in lack of due process that makes it illegal to export objects without identifying what those objects are, and places the burden of proof on individuals to show objects are lawfully traded.

Board members Bob Gallegos, Kim Martindale and John Molloy met with eight legislative offices in person in order to bring home their objections to the STOP Act. They also raised museums’ concerns that STOP would undermine museum protections under NAGPRA. New Mexico Congressman Steve Pearce personally discussed innovative alternatives to STOP with the ATADA board members.

ATADA remains convinced that the best way forward is to work with legislators, tribal communities, collectors, art dealers and auction houses to find alternatives to STOP that will permit continued commerce in legal items not subject to ARPA or NAGPRA. 

Almost all of the legislative staff were responsive. All expressed appreciation for ATADA’s landmark Voluntary Returns Program, which has turned out to be more effective than any federal enforcement actions. ATADA remains focused on bringing realistic, practical solutions to the table, rather than having a politically expedient but unworkable solution forced on collectors and the trade. However, the future of STOP may have more to do with how November elections shift power in Washington than on finding a positive way forward for all constituencies.

ATADA will continue its campaign to raise awareness in Washington of the dangers of STOP, and to inform and educate the public. In June, ATADA Board Member Kim Martindale coordinated bringing letters to legislators from six owners of major Indian shows opposing STOP. Keeping your Senators and Representatives informed is essential!

 

  • MONEY LAUNDERING

 via Wikimedia Commons

via Wikimedia Commons

An anti-money laundering bill now in the U.S. Senate is specifically directed at the art trade. Congressman Luke Messer of Indiana says that HR 5886 is intended to “reduce international money laundering and crack down on terrorist organizations like ISIS.” Never mind that there is no evidence that a single artwork sold in the US has had any connection with terrorist activity.

HR 5886 would apply the Bank Secrecy Act to dealers in art and antiquities. Regulation could require U.S. art and antique dealers with as little as $50,000 in annual purchases/sales to report transactions to the Department of the Treasury Financial Crimes Enforcement Network (FinCEN), to collect personal information from clients, and comply with a variety of burdensome regulations.

Art businesses subject to FinCen anti-money laundering (AML) requirements would be required to establish an AML Program and:

  • File IRS/FinCEN Form 8300, Form TD F 90-22.13, and Form 105 to establish an AML program.
  • Appoint a Compliance Officer for their business responsible for meeting FinCen AML regulations and rules
  • Provide ongoing AML training for employees
  • Pay for independent testing to monitor AML program and compliance
  • File suspicious activity reports (SARS)

If a business is non-compliant, the consequences could include closure of the business’ bank accounts and even imprisonment.

The regulations for the art industry are not specified in the bill, but a release from Congressman Messer’s office suggests that they will be similar to those applied to the category of dealers in precious metals, stones, and jewels.

ATADA has joined other arts organizations, including CINOA, the largest global art and antiques trade association, in opposing HR 5886.  ATADA has submitted written comment to the House Financial Services Committee contesting the addition of art dealers to FinCEN requirements.

For more, see: Letter from ATADA to Chairman Hensarling, Financial Services Committee, U.S. House of Representatives
https://atada.org/legal-issues/ 

Also see: Update: Art Trade Reacts to Threatened Bank Secrecy Act
https://culturalpropertynews.org/congressman-wants-bank-secrecy-act-to-regulate-art-trade/

 

TARIFFS

 Chang Hsüan, Women making textile, Indian ink and color on silk, Boston Museum of Fine Arts, Wikimedia Commons.

Chang Hsüan, Women making textile, Indian ink and color on silk, Boston Museum of Fine Arts, Wikimedia Commons.

One of the more bizarre episodes in the recent pursuit of tariffs is a plan to impose duties on Chinese antique art and artifacts. The Office of the U.S. Trade Representative is reviewing proposed tariffs on “Collections and collectors’ pieces of zoological, botanical, mineralogical, anatomical, historical, archaeological etc. interest” under HTS Heading 1905, and under HTS Heading 9706, “Antiques of an age exceeding one hundred years.”

One thing that makes this proposal strange is that tariffs on antiques will not punish China. They will actually enable the Chinese government to strengthen China’s near monopoly on Chinese antique and ancient art. The proposed tariff on Chinese art only punishes U.S. collectors, art businesses, and art museums – not the Chinese government. Ten years ago, the Chinese government asked the U.S. to impose import restrictions on art and antiques up to 1912. This request was granted, but only for art up through the Tang period. China has since used these U.S. restrictions to build its art business into the largest in the world, and to expand its domestic market in the same antiquities that currently cannot be imported from China into the U.S.

Placing tariffs on art, antiques, and other cultural materials would also be a major trade policy change for the United States. Almost 90 years ago, Congress exempted antiquities and art objects made before 1830 from duty in order to encourage the free flow of artistic and cultural materials into the U.S. under the U.S. Tariff Act of 1930. A 1966 law confirmed the antiques exemption and added as exempt ethnographic items that were 50 years old or older. Ever since then, books, art, collectibles, and antiquities have entered the U.S. duty free. The proposed China tariff would change that U.S. cultural policy for the first time. 

For more, see: Proposed Tariffs on Chinese Art Will Expand China’s Monopoly
https://culturalpropertynews.org/proposed-tariffs-on-chinese-art-will-expand-chinas-art-monopoly/

 

STATE DEPARTMENT PURSUES FOUR RENEWALS OF BLANKET FOREIGN IMPORT RESTRICTIONS AND NEW AGREEMENTS WITH ECUADOR AND ALGERIA 

In May 2018, the State Department’s Cultural Property Advisory Committee heard testimony on the renewal of the U.S.-China Memorandum of Understanding mentioned above. It also considered a new agreement on cultural property with Ecuador.

On July 31, 2018, the Cultural Property Advisory Committee (CPAC) at the Department of State will review two more proposed renewals of agreements to bar entry to the U.S. of “cultural property” from Bulgaria and Honduras. CPAC will also review a new request from the People’s Democratic Republic of Algeria. The objects proposed to be barred from import from these three countries are comprehensive. The import restrictions cover a period extending over 9000 years, and include everything from coins to manuscripts, beads and even common tools such as “axes, hoes, picks, and harpoons.”

Right now, there are 20 foreign countries whose art and artifacts are subject to comprehensive blockades. Belize Bolivia Bulgaria Cambodia China Colombia Cyprus EgyptEl Salvador GreeceGuatemala Honduras Italy LibyaMali Nicaragua , and Peru have bilateral agreements that once implemented, have been renewed again and again every 5 years, so that some, such as El Salvador, have been in place for over 30 years. Iraq (2008) and  Syria (2016) are currently subject to legislative “emergency actions.” (Mexico is covered in another longstanding treaty.)

Proceedings at CPAC are extremely secret. Months after a CPAC review, the American public and US art dealers, auction houses, and museums will learn what the import restrictions will be, through publication in the Federal Register. The restrictions will be effective from that day of first publication for 5 years. Based on the past record of the CPAC and its State Department administrators, the restrictions on artifacts from every country are likely to be extremely broad and renewed every five years through the foreseeable future.

ATADA condemns looting of any kind, from any country, but it does not support overbroad restrictions on the legitimate trade. Blanket restrictions on art from entire regions harm the U.S. public interest while doing nothing to preserve sites. ATADA has stood up for U.S. citizens’ access to art from around the world, and against agreements with source countries that don’t protect their own artifacts.

ATADA is particularly concerned about U.S. support for foreign governments’ absolute control of the cultural heritage of minority peoples and indigenous populations. ATADA is working to alert Congress to abusive U.S. agreements that have given control over the historical records and tangible heritage of exiled Jewish and Christian communities to oppressive regimes in Libya, Iraq, Syria, and Egypt; it has objected to Middle Eastern governments’ claims to all of nomadic Saharan Tuareg and Berber artifacts. ATADA has also demanded that the U.S. cancel cultural property agreements with China, based on its destruction of Tibetan and Uyghur religious sites and monuments.

See: ATADA’s testimony on Algeria.
https://atada.org/legal-issues/ 

See also:
CPAC – building a Wall Against Art
https://culturalpropertynews.org/cpac-building-a-wall-against-art/

Will U.S. Embargo on Art of China and Tibet Be Renewed? 
https://culturalpropertynews.org/testimony-on-renewal-of-us-embargo-on-art-of-china-tibet/

 

INTERNATIONAL TRIBAL ART AND ANTIQUITIES LEGISLATION

Several ATADA legal committee members have been working with European art dealer organizations and art fairs to combat misinformation that has triggered pending European Commission legislation. These pending EU regulations would restrict import and export of items over 250 years of age by requiring either (1) documentation of lawful export from a source country or second country in which the object has been for a lengthy period (the majority of countries have no such permitting regimes) or (2) a sworn affidavit from the exporter that an item was legally exported. The requirements would depend upon the type of object being imported or exported; antique books and ‘archaeological’ materials are among the items for which proof of legal export would be required. A major problem is that an importer might have no way to know if an item was legally exported, since most cultural items have been in circulation for decades among multiple owners.

Market representatives have presented independently-verified evidence showing that the assumptions on which the proposed EU regulations are premised are wrong. The cost and delay caused by the regulations could seriously damage legitimate art and antique markets, which contribute about €17.5 billion to the EU economy, and provide employment for over 350,000. The six-month delay for import license approval for artworks would keep foreign dealers from attending EU art fairs.

The European Commission’s premise for requiring new regulations was the claim that there was a massive, multi-million euro (or even multi-billion euro) trade in illicit antiquities from the war zones of the Middle East. However, the most recent World Customs Organization’s latest Illicit Trade Report (2016) shows no seizures at all in Western Europe (other than Switzerland) of any looted cultural property associated with the Middle East.


Important Note: ATADA cannot answer member’s legal questions, and nothing in this article or on the ATADA website constitutes legal advice. If you have a legal question, you should contact your attorney for advice.

Proposed tariffs on Chinese art will have a negative impact on the U.S. market

 Chang Hsüan, Women making textile, Indian ink and color on silk, Boston Museum of Fine Arts, Wikimedia Commons.

Chang Hsüan, Women making textile, Indian ink and color on silk, Boston Museum of Fine Arts, Wikimedia Commons.

The Office of the United States Trade Representative (USTR) has included artwork, antiques and historical/archeological collections in the proposed 10% retaliatory tariff on an additional $200 billion in Chinese goods.  

Artworks and antiques can be found at the end of the list of items covered by the tariff. 

As noted in the Cultural Property News article, Proposed Tariffs on Chinese Art Will Expand China’s Art Monopoly (July 19, 2018), almost all of the  artwork from China from the Paleolithic through the Tang period is already covered by U.S. import restrictions. 

From the article:

The restrictions are claimed by China to be for the protection of ancient archaeological sites, but in fact, they reinforce China’s monopoly on Chinese art. Global Heritage Alliance Executive Director Peter Tompa states, “A tariff will only drive more Chinese artifacts back to China, which is exactly what the State Department is doing with its import restrictions.”

These actions will certainly have a negative impact on the U.S. art trade, while benefitting the Chinese government, who have requested import restrictions on art and antiques, not punishing them as intended. 

Please read the full article on the Cultural Property News website for more information and insight on this issue.  

What can you do? Make your voice heard! 

The USTR is requesting comments on the proposed list of imports. Comments must be received by July 27, 2018. 

The USTR prefers electronic submissions made through the Federal eRulemaking Portal.

Insert the docket number USTR-2018-0026 in the Search bar. A new window will open. Click the “Comment Now” button to submit your comment.

There are also instructions on how to submit paper testimony on the request for comments page.