Between Rocks and Hard Places: Unprovenanced Antiquities and the National Stolen Property Act

Volume 40 Issue 1 Winter Winter 2010 Between Rocks and Hard Places: Unprovenanced Antiquities and the National Stolen Property Act Stephen K. Urice Recommended Citation Stephen K. Urice, Between Rocks and Hard Places: Unprovenanced Antiquities and the National Stolen Property Act, 40 N.M. L. Rev. 123 (2010). Available at: https://digitalrepository.unm.edu/nmlr/vol40/iss1/6 This Article is brought to you for free and open access by The University of New Mexico School of Law. For more information, please visit the New Mexico Law Review website: www.lawschool.unm.edu/nmlr \\server05\productn\N\NMX\40-1\NMX104.txt unknown Seq: 1 22-OCT-10 11:13 BETWEEN ROCKS AND HARD PLACES: UNPROVENANCED ANTIQUITIES AND THE NATIONAL STOLEN PROPERTY ACT STEPHEN K. URICE* I. INTRODUCTION Amid intense media coverage,1 early in the morning of January 23, 2008, federal agents served search warrants on four southern California museums: Los Angeles County Museum of Art, Pacific Asia Museum, Charles W. Bowers Museum, and Mingei International Museum.2 Two warrants allege, inter alia, that the Bowers and Pacific Asia museums possess stolen antiquities from Thailand in violation of the National Stolen Property Act (NSPA).3 The NSPA criminalizes the possession of property valued at $5,000 or more that crossed a federal or state border after the property was stolen if the possessor knows the property to be stolen.4 * Stephen K. Urice, Ph.D., J.D., is an associate professor of law at the University of Miami School of Law. Professor Urice worked as a field archaeologist and is author of the excavation report STEPHEN K. URICE, QASR KHARANA IN THE TRANSJORDAN (1987); is co-author of JOHN HENRY MERRYMAN, ALBERT E. ELSEN, & STEPHEN K. URICE, LAW, ETHICS, AND THE VISUAL ARTS (5th ed. 2007); and serves on the editorial board of the International Journal of Cultural Property. 1. See, e.g., Joelle Seligson, California Raids Echo Through the Field, MUSEUM, Mar./Apr. 2008, at 27; Stephanie Cash, Four L.A. Museums Targeted for Loot, ART IN AMERICA, Mar. 2008, at 200; Jori Finkel, Thai Antiquities, Resting Uneasily, N.Y. TIMES, Feb. 17, 2008, at AR29; Matthew L. Wald, Tax Scheme Is Blamed for Damage to Artifacts, N.Y. TIMES, Feb. 4, 2008, at E1; Jason Felch, Intrigue But No Glamour for Smuggling Case Figure, L.A. TIMES, Jan. 31, 2008, at A1; Edward Wyatt, An Investigation Focuses on Antiquities Dealer, N.Y. TIMES, Jan. 31, 2008, at A20; Edward Wyatt, Papers Show Wider Focus in Inquiry of Artifacts, N.Y. TIMES, Jan. 30, 2008, at A1; Jason Felch & Mike Boehm, Federal Probe of Stolen Art Goes National, L.A. TIMES, Jan. 29, 2008, at B1; Edward Wyatt, Museum Workers Are Called Complicit, N.Y. TIMES, Jan. 26, 2008, at B7; Mike Boehm, Museum Didn’t Need This Publicity, L.A. TIMES, Jan. 26, 2008, at A1; Dana Parsons, The Feds’ Raid Is Already Ancient History at Bowers, L.A. TIMES, Jan. 26, 2008, at B1; Jason Felch, Raids Suggest a Deeper Network of Looted Art, L.A. TIMES, Jan. 25, 2008, at A1; Paloma Esquivel, David Reyes & Robert J. Lopez, Workers, Visitors See an Unusual Exhibit: Agents at the Door, L.A. TIMES, Jan. 25, 2008, at A27; Day to Day: FBI Raids L.A. Museums (NPR radio broadcast Jan. 25, 2008), available at http://www.npr.org/templates/ story/story.php?storyId=18415487 (last visited Jan. 18, 2010). 2. Search Warrant on Written Affidavit, United States v. L.A. County Museum of Art, No. 08-0100M (C.D. Cal. Jan. 19, 2008); Search Warrant on Written Affidavit, United States v. Pac. Asia Museum, No. 080118M (C.D. Cal. Jan. 22, 2008); Search Warrant on Written Affidavit, United States v. Charles W. Bowers Museum Corp., No. 08-0093M (Jan. 19, 2008); Search Warrant, In the Matter of the Search of Mingei Int’l, Inc., No. 08-MJ0205 (S.D. Cal. Jan. 31, 2008). Allegations in the warrants are devastating. Various of the museums are alleged to have participated in one or more of the following: tax fraud conspiracy to inflate the value of contributed works of art; possession of antiquities stolen from China; possession of antiquities stolen from Thailand; possession of antiquities illegally imported into the United States from Burma (sic); and possession of Native American archaeological resources removed from public or Indian lands without a permit. The warrants allege the museums violated, among others statutes, the National Stolen Property Act, Archaeological Resource Protection Act, and provisions of federal law criminalizing conspiracy to defraud the United States. 3. The NSPA is codified at 18 U.S.C. §§ 2311–2318 (2006). Discussion of the NSPA appears below in Part III.A. 4. 18 U.S.C. § 2315 states in pertinent part: Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise, securities, or money of the value of $5,000 or more . . . which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken . . . . . . . Shall be fined under this title or imprisoned not more than ten years, or both. 123 \\server05\productn\N\NMX\40-1\NMX104.txt 124 unknown NEW MEXICO LAW REVIEW Seq: 2 22-OCT-10 11:13 [Vol. 40 If this investigation leads to criminal prosecutions5 under the facts alleged, courts will be presented with a dilemma: either an acquittal or a conviction would have serious, unintended outcomes. An acquittal would effectively create a licit market for unprovenanced Thai antiquities within the court’s jurisdiction.6 A conviction would set a precedent, transforming continued possession of vast portions of the antiquities collections of every museum within the court’s jurisdiction into a federal crime. These potential outcomes develop from the confluence of three factors: first, the general inadequacy of the NSPA to answer the complex question of when an unprovenanced (i.e., an undocumented) antiquity is considered stolen for purposes of U.S. law;7 second, the unintended consequences created by Congress’s 1986 amendments to the NSPA in cases involving unprovenanced antiquities; and third, the sharp differences between the Fifth and the Second Circuits’ applications of the NSPA in the only two criminal prosecutions involving unprovenanced antiquities to have reached the federal appellate level. Although the first of these factors has been debated for many years,8 the second and third factors have largely gone without critical commentary, and the confluence of these factors has not yet been identified and discussed. This article argues that continued application of the NSPA in cases involving unprovenanced antiquities risks outcomes that undermine one or both of two U.S. policy goals: (1) protecting the global archaeological record and (2) promoting museums’ charitable and educational missions. Accordingly, this article suggests that the current uncertainty in how courts apply the NSPA in the unique circumstances of determining title to undocumente (...truncated)