Cui Bono, indeed

Michael McCullough's second blog post ("Ownership Cui bono (American  Law and Claims to Cultural Property)" posted on 14th February 2013) immediately sets him apart from his blogging legal pals over on the other side of the Atlantic. It puts his thoughts in a much wider context than we see from the likes of Tompa et al. He also avoids the inflamatory terminology invoked by those claiming to speak for the US collecting milieu. Such a nuanced approach is very welcome.

His text focuses on US law and in particular the relationship between US law and the legal systems of other countries regarding ownership of artefacts. He concludes (avoiding the topic of smuggling) that the US legal system is not designed to deal with looting:

The only US law addressing cultural property, the Cultural Property Implementation Act does not prohibit the importation of stolen cultural property unless it was stolen from the inventory of a museum or cultural institution, and the theft occurred after January, 1983; objects from illegal excavations and other takings, as well as objects stolen from museums or cultural sites before 1983, are not covered by this law. 

He adds, encouragingly: "At this point I find myself wishing there was a more fitting law attending to the ownership rights of cultural objects taken from foreign countries". So - given the scale of the role of US dealers and buyers in the global market in dugup and knocked-off  [portableised] antiquities -  do we all.

This failing in current US law to get to grips with the actual problem in the antiquities and art market of the 21st century is why, he argues, time and time again we see the issues of cultural property reduced by the US to a mere matter of "repatriation". He admits in addition that: "American law is chary of the risks involved with entertaining foreign government claims, resulting in the tendency to limit such claims to only the most conspicuous cases". He theorises that the intellectual context of this is because US social opinion on the matter is fixed in nineteenth century attitudes:

the European immigrants to the United States invested scrupulous resource in destroying the indigenous culture of their new home, so much so that the fundamental assumption at the start of the 19th was that all important cultural objects in the United States originated in foreign counties [...] And if all the important objects in your museums and private collections come from abroad, then you really can’t appease every foreign government’s claim of “looting”...

Unless, he forgets to add, one takes steps to make sure that the objects one is acquiring are unchallengeably kosher. McCullough thinks that the equable treatment of cultural property matters under current US law is hindered because of the "difficulty in establishing an individual ownership right in an object" and that even if the items are of dubious provenance, "the laws in the United States treat cultural property as personal property that can be freely owned and traded". 

To put it bluntly, all cultural objects were owned by somebody in a foreign country, and the question in the context of a request for return is whether that somebody is the party making the demand.   [...] Therefore, in a civil case for the return of an object, a foreign government, or the US government on its behalf, must perfect its claim by proving that the foreign government- and not a private party- owned the object when it was taken. 

He then goes on to show the difficulty of proving that in the eyes of US law - using the "Sotheby's-Ruspoli di Poggia Suasa" Koh-Ker statue case going through a Manhattan court as an example: "the resolution of this case depends primarily upon whether the Cambodian government owned the sculpture at the time of its taking".

There is no mention here of common law approaches in the USA and beyond to the issue of abandoned property of value. Sadly the common law of bona vacantia applicable elsewhere and taken by settlers to the New World ("quod nullius est fit domini regis") was misinterpreted by US courts early on last century (Richard B. Cunningham, 'The Slow Death of Treasure Trove', Archaeology February 7, 2000) by ) and as such probably cannot now be applied today over there like they can over here. Their existence however invites us to consider whether the only way a US court can see state ownership is through a demonstration of a "continuous succession of ownership"?

There is another point about the retrieval of artefacts and abandoned goods from archaeological sites which is worth pointing out. McCullough's discussion is object-centric. The interference with sites and monuments (sometimes all and sometimes only a selected number) is in many states regulated by permits. If a site is damaged and items removed without a permit, an illegal act has taken place and artefacts resulting from that activity cannot enter the market legally. Legal possession is dependent on demonstrating legal removal. If permission is granted, the items removed from a site or monument can only legally enter the antiquities market if that is in the manner in which that permit states. This is exactly the distinction between illegal and legal artefact hunting in the UK, and there is no reason why US buyers should be exempt from ascertaining whether an object which they acquire was "produced" by licit means or not. There should be laws preventing objects produced illegally entering the market. An object produced illegally and purchased as such surely cannot be legally owned.

 The reader is left by McCullough to explore for themselves the relationship between attitudes to objects imported to ornament collections in the US from the classical (and other) civilizations of the Old World and Claims to Cultural Property of indigenous groups in the New World. He mentions the strategy of destruction of indigenous cultures by aggressive settlers anxious to dominate a land a century ago, he does not explore what has happened since then in these more immediate relations. How does the same law operate in the case of Native American cultural property objects ? In what way are modern groups forced by US law to prove their claim to excavated or taken objects in US collections (for example in NAGPRA) by continuous succession of ownership? Why does NAGPRA's reviewing committee ((25 USC 3006, unlike CPAC) not include representatives of the Trade? The existence of 'repatriation' (sic) laws for native American items in the USA invites a question. Maybe 100 years ago these people with different skin colour and language may have been treated one way by US society as a whole, does that still apply to the native Americans and their rights in America in the second decade of the twenty first century? Do they have no say in the matter of the way the same white majority treat the cultural heritage of other nations?

Who owns an ancient Redwood tree, or a whale? Does the fact that nobody 'owns' something mean there are no rights and wrongs connected with the way it is exploited and those rights and wrongs cannot be enforced by law? Should protecting something like an ancient tree be dependent on somebody buying the land on which it grows and shooting at anyone who then comes near it? Environmental (and, child abuse or animal cruelty) laws in the rest of the world do not concentrate on ownership, but the issue of social and individual responsibility for a greater good. Surely protecting the cultural heritage from destruction by commercial looting is just such an issue of environment and the greater good over self-centredness exhibited by a selfish and unscrupulous minority?