Miami Law: US Cultural Property Policies a Shambles

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There is a pretty depressing text by Stephen K. Urice (University of Miami, School of Law) with Andrew Adler (University of Miami), "Unveiling the Executive Branch's Extralegal Cultural Property Policy", University of Miami Legal Studies Research Paper No. 2010-20 (available online here). While it is not entirely clear what this article is in fact trying to achieve, the authors' thesis is that "we reveal that the executive branch of the United States has consistently - and astonishingly - exceeded constraining legal authority with respect to the movement of cultural property into the United States" and "our purposes in unveiling this policy are to promote a rigorous and transparent review of the executive’s practices and to restore the rule of law. In our conclusion we speculate as to why the executive has undertaken these practices and, among other observations, suggest with some sympathy that the current legal framework is outdated". Derek Fincham (Urice and Adler on the "Executive Branch's Extralegal Cultural Property Policy") writes that though the authors are critical of the policies of the Executive branch..."this does not mean that they endorse the looting of sites or the black market".

Frankly, I am not so sure what their motivations are, this looks very much like a piece written to order for the collectors' lobby (perhaps in connection with the upcoming Italy MOU extension, 'just in case'). Many of whom are cited, acknowledged and quoted in the body of the text. This plays right into their hands, as Wayne Sayles acknowledges in his comment on Fincham's blog.

It seems to me that there is a fundamental piece of intellectual dishonesty in the assertion at the basis of this text that (all?) archaeologists are for the banning of a trade in antiquities altogether (page 3) while dealers "favour a regulated trade in antiquities" (pp 3 and 16). On the contrary, all those who care about the preservation of the archaeological record are in favour of a much more strongly regulated trade, while the dealers are doing everything they can to fight any kind of regulation of the trade, and Mr Urice and Adler's text plays right into their hands. I would not be very surprised to learn that one or both of them collect coins or other antiquities.

What is it about US lawyers? Why do when it comes to matters conencted with tha antiquities trade and collecting do the majority who contribute anything to the debate come over as entirely mercenary philistines? Is there really so much money to be made out of defending collectors and dealers that it pays to sell their souls? (Mr Urice for example is a former archaeologist, rather sad to see he's gone over to the dark side).

So these two authors engage in an entirely destructive analysis of some of the problems of "US cultural property policy", though as is traditional in such circles seeing it in isolation, as a totally separate issue from the protection of the archaeological heritage in the US. Their aim seems to be to demonstrate that there is a "pattern of practices" (sic) which they "unveil" and then claim forms "an extralegal cultural property policy". It just looks like another conspiracy theory to me.

Their paper has three main parts. The first points out that the Department of Justice has been in the wrong, and discusses two cases where collectors had items seized, an antique car bought by Charles Morse in 2008 (pp. 8-10) and a Third Intermediate Period mummy case bought by a Joseph A. Lewis and his wife Sofi seized in Miami in 2008. They claim that both were wrongfully seized under the National Stolen Property Act (NSPA).

The second part then discusses what they see as the wrongful application of the US's rather pathetic Archaeological Resources Protection Act (ARPA) to combat traffic in illicitly obtained artefacts (Adler has previously published an article on this). They briefly discuss three such cases from 1996, 2003 and 2008 concerning Etruscan, Peruvian and Southeast Asian artefacts (none of which reached court) and conclude that again the Department of Justice may have acted unlawfully applying this Act in these three cases.

Then the main (third) part of the text (pages 16-41) goes through the arguments by now familiar from the coiney so-called "internationalists" camp on the allegedly improper application of the Convention on Cultural Property Implementation Act (CPIA). Let us note that this act itself is a cop-out on a massive scale, allowing the United States of America, arguably one of the biggest, if not the biggest market for all manner of other people's dug up and knocked-off cultural heritage, to go through the motions of "taking a moral lead" without actually doing anything much to actually make their import controls more than the sorry barrier of bubbles that it actually is. This is entirely under the influence of the trade lobby and due to the absence of any kind of strong policy on the antiquities trade. Urice and Adler take much the same line as Sayles and Welsh in their "manifesto" of "internationalism", and indeed even quote some of the same sensationalist journalism (Steven Vincent for example) to support their views. Basically it seems to me that Urice and Adler basically want to retain the CPIA as a totally ineffective cop-out rather than see it used to combat illegal exports of illicitly obtained material.

They say they are concerned about the "law" being "upheld", I'd like to hear their views on the Four Corners sentencing.

Frankly, I remain to be convinced that the authors have "unveiled" a hidden "pattern" or that the US government actually has an "Extralegal Cultural Property Policy". As I say, this looks like another of those conspiracy theories so dear to the heart of a Washington lawyer (who also notes the publication of their 'paper' with enthusiasm). The authors' smug presentation of two cases from 2008 relating to the NSPA (in one of which - the car - the authors admit the NSPA was actually applicable in one of the justifications for seizure), three cases of the application of the ARPA between 1996 and 2008 and some wearisome whinging echoing the no-questions-asked trade's take on the CPIA really do not seem sufficient to demonstrate a pattern, still less a gubn'mint conspiracy agin' its citizens which is where it seems to me the authors are heading. The pattern I see this article reflecting is of a totally different nature.

This leaves the question: on what should policy be based, and on what basis should policy be adapted and changed? On what should laws be based, and on what basis should laws be adapted and changed? Should policies take into account only commercial interests, or should policies reflect some other aspects like moral leadership, responsibility, sustainable utilisation of finite resources for example? I would say that this paper in fact demonstrates very little, apart from the fact that there is a state of shambles in US cultural policy in general, not just (imported dugup) "cultural property" and even though the authors claim not to have any thoughts on this, that this needs sorting out. Whether or not that should be done in a way to enable and facilitate the trading of illegally exported archaeological (and ethnographic) material by US dealers or whether it will be done in a way which starts to clean up this disreputable and damaging no-questions-asked market should be a matter of public debate, but not just between dealers' lobbies and their lawyers and the law-makers, but concerned and conservation-conscious citizens and the government.

See Derek Fincham: Urice and Adler on the "Executive Branch's Extralegal Cultural Property Policy"
Peter Tompa: Unveiling the Executive Branch's Extralegal Cultural Property Policy
David Gill: Miami Law: Missing the Ethical Point?
(Come on Kimberly, what's your take on this?)

Vignette: Urice and Adler ride out allegedly to "restore the rule of law", but do they serve today's robber barons?