A Legal Primer on Managing Museum Collections, Third Edition

In addition to clarifying questions concerning the quality and completeness of title conveyed to a museum, accession procedures should also be structured so that important tax information is readily available. Two issues deserve specific mention: documentation concerning the completion of the gift for tax purposes and documentation concerning the intended use of the gift.

The insistence on “donor relinquishment of control” as a requisite for a tax deduction stems from earlier abuses when donors gave paper evidence of gifts to charitable organizations but delayed delivery indefinitely in order to have continued enjoyment of the objects in question. In effect, these “donors” had the benefit of a charitable deduction on their income tax with no concurrent benefit to the public. To prevent the continuance of such abuses, the Internal Revenue Code was amended so that a charitable contribution deduction is not permitted for a “future interest” in personal property. “The term ‘future’ interest includes situations in which a donor purports to give tangible personal property to a charitable organization, but has an understanding, arrangement, agreement, etc., whether written or oral, with the charitable organization which has the effect of reserving to, or retaining in, such donor a right to the use, possession, or enjoyment of the property.”⁴⁸⁹ (There is one exception to this rule, a “fractional gift.” See Chapter XII, “Tax Considerations,” Section D, “Spreading Out Charitable Deductions.”)

In Winokur v. Commissioner, a donor gave a museum a partial interest in a collection of art (a fractional gift).⁴⁹¹ The museum had the right, therefore, to possess the collection for a certain period of the year that conformed to its fractional interest. The question posed was this: If the museum failed to take possession of the collection for the time allotted to it in a year, did this nullify the donor’s right to declare a fractional gift for the year? The court held that the right to current possession was real (i.e., the museum could have demanded possession), and this was all that was required to validate the fractional gift. In other words, the donor had in fact relinquished control over that fraction of the art collection. (This case was decided before the legislation creating the “fractional gift” option was amended. In another situation, “IRS Private Letter Ruling 9218067,”⁴⁹² donors planned to execute a deed of gift transferring art objects to a museum that was then under construction. The museum was not expected to open for a year after the deed of gift was signed. It was anticipated that the donors would retain and display the art objects in their home until the museum opened. The question for the Internal Revenue Service was whether this arrangement invalidated a tax-deductible gift for the donors for the year in which they signed the deed of gift. The ruling of the Internal Revenue Service was that the understanding and expectation of the parties did not result in “a tacit reservation by the donors of a present right of possession.” Accordingly, the donors in this situation would, on the execution of the deed of gift, “relinquish control,” and the contribution of the art objects would qualify as a charitable contribution.

Even though the Internal Revenue Service has demonstrated a willingness to be somewhat flexible in interpreting “donor relinquishment of control,” museums evaluating similar situations should remember why this requirement was first inserted into the IRS Code. Museums should also remember this provision of the tax code, and its interpretation, when a donor requests to borrow back an object that has been donated.⁴⁹³

1. See also this chapter’s Section F, “Acquisition Procedures.”

2. This is not to imply that, once accessioned, an object can never be removed from the collection. (See Chapter V, “The Disposal of Objects: Deaccessioning.”) Experience and changing circumstances may justify removal. However, if a museum wants to maintain its integrity, each decision to accession should be made thoughtfully and in good faith. If accessioning is used merely to “cool” (i.e., hold for a discrete period) gifts before disposal, a serious lack of professional ethics is evident.

3. Such gifts of capital gain property may normally be deducted at their fair market value. See Chapter XII, “Tax Considerations.”

4. The fair market value of a gift of tangible personal property that is put to an unrelated use by the charitable organization must be reduced by 100 percent of its appreciation. (“Appreciation” is fair market value minus the donor’s basis in the property.) See IRS Publication 526, “Charitable Contributions,” for additional information. See also IRS Code § 170(e)(1)(B), IRS Regulations § 1.170A-4(b)(3), and Chapter XII, “Tax Considerations.”

5. The IRS takes the position that a gift of tangible personal property to a charitable organization may be treated as put to a related use if (1) the taxpayer establishes that the property is not in fact put to an unrelated use by the donee; or (2) at the time of the contribution or at the time the contribution is treated as made, it is reasonable to anticipate that the property will not be put to an unrelated use by the donee (see IRS Publication 526, “Charitable Contributions,” and IRS Regulation § 1.170A-4(b)(3)(ii). See also Chapter XII, “Tax Considerations,” noting especially Section C, “Concept of ‘Unrelated Use.’ ” Note also the discussion in Chapter V, “The Disposal of Objects: Deaccessioning,” Section B.2.e, “Notification to Donor of Deaccession,” which explains IRS notification requirements by the donee organization on related use when certain gifts are made and when these gifts are transferred by that donee organization within three years of receipt.

6. If a batch or lot accession has been determined to be appropriate, museum procedures regarding the deaccessioning of items within that batch or lot may be more relaxed. See Chapter V, “The Disposal of Objects: Deaccessioning,” Section B.2.b, “The Proper Authority to Approve a Decision to Deaccession.”

7. See Chapter VII, “Unclaimed Loans,” footnote 17, on the cost of maintaining collection objects.

8. A bequest is something left or given under a will, as distinct from a gift, which is given during the life of the donor.

9. It is important that the museum deal with the appropriate party representing an estate (the person appointed by the court to represent the estate or the attorney advising that person). If the museum is in doubt on this issue, it should seek legal advice. If the museum is approached by heirs of the deceased and the museum is offered property formerly belonging to the deceased “in memory of the deceased” (in other words, the property was not bequeathed to the museum in the will), this is not a bequest situation. It is a gift from the heirs. In such situations, the museum should seek legal advice if there is any question of the ability of the offering party to pass full and clear title.

10. There may be instances when circumstances show that the decedent left property to the museum either for accessioning or, in the discretion of the museum, for immediate sale to benefit the museum. In estate tax situations (as distinct from income tax situations), the “related use” question normally does not arise. The exception concerns certain situations involving copyright; see Internal Revenue Code (26 U.S.C.) § 2055(e) (4), Regulation (26 C.F.R.) § 20.2055–2(e)(11). But there can be public perception problems. Each such case should be carefully weighed so that the museum is satisfied that a decision to accept and sell is prudent in light of all other considerations.

11. See I. DeAngelis, “Wills and Estates Checklist for Museum Staff Administering Bequests,” and N. Ward, “Bequests: What Should a Museum Do to Protect Its Interests as Beneficiary under a Will?,” both in American Law Institute-American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1994). See also B. Wolff, “Processing Bequests: From Notice of Probate to Receipt and Beyond,” in American Law Institute-American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1996), for a detailed discussion of procedural matters.

12. The party having the burden of proof in a lawsuit must come forward with a preponderance of evidence in order to prevail. In other words, more in the way of convincing evidence is required of the one with the burden of proof.

13. In Christians v. Crystal Evangelical Free Church (In re Young), 82 F.3d 1407 (8th Cir. 1996), vacated, 521 U.S. 1114 (1997), reinstated, 141 F.3d 854 (8th Cir. 1998), cert denied, 525 U.S. 811 (1998), a church that was a charitable donee was able to retain a gift made by donors within one year of bankruptcy, but the decision rested on a federal statute (the Religious Freedom Restoration Act of 1993) and, hence, may be of slight comfort to museums. In the case of City of Boerne v. Flores, decided by the U.S. Supreme Court on June 25, 1997, the Religious Freedom Restoration Act was declared unconstitutional, thus removing any special protection that religious organizations might have in later challenges of this nature. In the “New Era” scandal, a massive Pennsylvania-based scheme to fraudulently manipulate charitable donations, many charities that unwittingly became involved were, as of early 1997, voluntarily returning portions of donations they received in order to relieve losses suffered by other charities. See “New Era Philanthropy Settlement Could Recoup Money for Charities,” Chronicle of Philanthropy, 46 (Sept. 5, 1996). Note also the comments in this chapter’s Section A, “The Meaning of the Word ‘Accession,’ ” regarding the uncertainty of bequests until all estate affairs have been settled.

14. Black’s Law Dictionary (6th ed., 1990). A plaintiff in such an action must also show that he or she suffered damages as a result of the alleged misrepresentation.

15. A tort is a legal wrong committed against the person or the property of another independent of contract.

16. The Uniform Commercial Code (U.C.C.) governs the sale of personal property. The code has been adopted, with occasional modification, by all states except Louisiana and by the District of Columbia. In addition, some states have legislation that specifically addresses the sale of art or unique objects.

17. D. Frisch, “David Frisch on Warranty of Title under U.C.C. Section 2-312,” 2008 Emerging Issues 3199, LexisNexis Emerging Issue Analysis (Dec. 2008). See 2003 Official Comment on Amendments to Uniform Commercial Code by the American Law Institute and National Conference of Commissioners on Uniform State Laws, “U.C.S. § 2-312: Section 2-312 Warranty of Title and Against Infringement: Buyer’s Obligation Against Infringement.” F. Feldman and S. Weil, Art Law (Boston: Little Brown, 1986, supp. 1993), Chapters 9 and 10, is an excellent resource on the law regarding private and public sales. Also, “Stolen Art Sold at Auction,” 5 Stolen Art Alert 4 (June 1984), is a series of letters written to a London magazine on the subject of stolen art sold at auction. The letters illustrate the complex issues that can arise and the differing opinions as to how such situations should be handled. In the case of Autocephalous Greek-Orthodox Church v. Goldberg and Feldman Fine Arts, Inc., 717 F. Supp. 1374 (S.D. Ind. 1989), aff’d, 917 F.2d 278 (7th Cir. 1990), the court discusses the following question: When can an art dealer qualify as a good-faith purchaser of art?

18. 267 N.Y.S.2d 804, 49 Misc. 2d 300 (1966), modified 28 A.D. 2d 516, 279 N.Y.S.2d 608 (1967), third party claim rev’d on other grounds, 24 N.Y.S.2d 91, 298 N.Y.S.2d 979, 246 N.E.2d 742 (1969).

19. 541 F. Supp. 80, rev’d and remanded for new trial, 693 F.2d 259 (2d Cir. 1982). This case eventually became moot when Italy decided it would not question the sale.

20. 891 F. Supp. 1361 (N.D. Cal. 1995). See also Cantor v. Anderson, 639 F. Supp. 364 (S.D.N.Y. 1986); and Porter v. Wertz, 416 N.Y.S.2d 254 (N.Y. App. Div. 1979), aff’d, 439 N.Y.S.2d 105 (N.Y. 1981).

21. The express warranties need not be recited in the sales contract itself. See Comment 7 on § 2–313 of the U.C.C.

22. See discussion of fact versus opinion in Chapter XIII, “Appraisals and Authentications.”

23. In Weisz v. Parke-Bernet Galleries, Inc., 67 Misc. 2d 1077, 325 N.Y.S.2d 576 (1971), rev’d, 77 Misc. 2d 80, 351 N.Y.S.2d 911 (1974), a case decided under a statute similar to the U.C.C., the plaintiff failed to prevail in a suit to recover for the purchase of fake art. But see Legum v. Harris Auction Galleries, File No. 81–013 (Md. Consumer Protection Div., Office of the Att. Gen., Apr. 1983). Here the seller was afforded some relief under the Maryland Consumer Protection Law. Since the Weisz case, mentioned above, New York has enacted legislation that specifically addresses warranties in the sale of fine art when the seller is an “art merchant” and the buyer is a nonmerchant.

24. On the general issue of the application of the U.C.C. to the sale of art, see Note, “Uniform Commercial Code Warranty Solutions to Art Fraud and Forgery,” 14 Wm. and Mary L. Rev. 409 (1972); and F. Feldman and S. Weil, Art Law (Boston: Little Brown, 1986, supp. 1993). If a cause of action can be maintained under the U.C.C., relief may prove generous. Section 2–714(2) of the code states the following: “The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had as warranted, unless special circumstances show proximate damages of a different amount.” Consider the following example. A painting is purchased for $1,000, and a number of years later the purchaser discovers that title is faulty. The painting is now worth $5,000, and the seller is sued successfully under the U.C.C. The plaintiff may be able to recover not merely the $1,000 purchase price but $5,000, the present fair market value. (See Menzel v. List discussed in this chapter’s Section D.5, “Stolen Property,” regarding the recovery of List against the Perls.)

25. See, for instance, Firestone & Parson, Inc. v. Union League of Philadelphia, 672 F. Supp. 819 (E.D. Pa. 1987); and Wilson v. Hammer Holdings, Inc., 850 F.2d 3 (1st Cir. 1988). Both are reproduced in F. Feldman and S. Weil, Art Law (Boston: Little Brown, 1986, supp. 1993).

26. “Fine art” is defined to mean a painting, sculpture, drawing, or work of graphic art.

27. New York Arts and Cultural Affairs Law, Art. 13. See, for instance, Dawson v. G. Maliney, Inc., 463 F. Supp. 461 (1978); and Pritzker v. Krishna Gallery of Asian Arts, 93 C 4147. The latter, a case decided by a federal judge in Chicago on May 7, 1997, raised the issue of whether one knowledgeable in the arts can seek the protection of the New York statute.

28. Mich. Comp. Laws Ann. §§ 442.321 et seq.

29. The following states have legislation governing the sale of fine prints: Arkansas, California, Georgia, Hawaii, Illinois, Maryland, Michigan, Minnesota, New York, Oregon, South Carolina, and Wisconsin.

30. New York Arts and Cultural Affairs Law, Art. 15.

31. Ibid., Art. 14.

32. See, for example, New York City Consumer Protection Law, Reg. 30.

33. Legum v. Harris Auction Galleries, File No. 81-013 (Md. Consumer Protection Div., Office of the Att. Gen., Apr. 1983).

34. 15 U.S.C. §§ 41 et seq.

35. 15 U.S.C. §§ 2101–6.

36. 18 U.S.C. §§ 1341–43.

37. W. Prosser, Handbook of the Law of Torts (Hornbook Series), 4th ed. (St. Paul, Minn.: West Pub. Co., 1971). For a general discussion on the problem of fake art, see S. Hodes, “ ‘Fake’ Art and the Law,” 27 Fed. B.J. 73 (Winter 1967). See also Committee on Art of the Bar of the City of New York, “Legal Problems in Art Authentication,” 21 Records of N.Y.C.B.A. 96–102 (1966); and F. Feldman and S. Weil, Art Law (Boston: Little Brown, 1986, supp. 1993). For problems in the print market, see S. Hobart, “A Giant Step Forward: New York Legislation on Sales of Fine Art Multiples,” 7 Art and the Law 261 (1983). For an article on how a museum reacts when it suspects that one of its works is a fake, see R. Flamini, “Not the Real Thing,” 32 Washingtonian (No. 2, Nov. 1996).

38. If purchased property turns out to be stolen and has to be returned, the museum purchaser might have a cause of action against the seller based on the sales contract or some form of misrepresentation (see previous sections of this chapter).

39. Wood v. Carpenter, 101 U.S. 135, 25 L.Ed. 807 (1879).

40. “Conversion” is a civil action for money damages based on the unlawful withholding of property. If the plaintiff seeks the return of the property itself, rather than its value, the action may be called “replevin.”

41. In State of North Carolina v. West, 293 N.C. 18, 235 S.E.2d 150 (1977), North Carolina was demanding the return of certain historic documents that were once the property of the state. The court held that in North Carolina the statute of limitations would not be applied against the state. Individual state law should be checked on this point.

42. This interpretation is frequently referred to as the “discovery rule.” See 51 Am. Jur. 2d, “Limitation of Actions,” § 146, at 716. See also Comment, “The Recovery of Stolen Art: Of Paintings, Statues, and Statutes of Limitations,” 27 U.C.L.A. L. Rev. 1122 (1980). California decided to settle this matter in a law specifically addressing claims against museums for works of art. Cal. Code Civ. Proc. § 338(c) (3) (2011) reads in pertinent part as follows: “[A]n action for the specific recovery of a work of fine art brought against a museum, gallery, auctioneer, or dealer, in the case of an unlawful taking or theft, as described in Section 484 of the Penal Code, of a work of fine art, including a taking or theft by means of fraud or duress, shall be commenced within six years of the actual discovery by the claimant or his or her agent, of both of the following: (i) The identity and the whereabouts of the work of fine art. In the case where there is a possibility of misidentification of the object of fine art in question, the identity can be satisfied by the identification of facts sufficient to determine that the work of fine art is likely to be the work of fine art that was unlawfully taken or stolen. (ii) Information or facts that are sufficient to indicate that the claimant has a claim for a possessory interest in the work of fine art that was unlawfully taken or stolen. (B) The provisions of this paragraph shall apply to all pending and future actions commenced on or before December 31, 2017, including any actions dismissed based on the expiration of statutes of limitation in effect prior to the date of enactment of this statute if the judgment in that action is not yet final or if the time for filing an appeal from a decision on that action has not expired, provided that the action concerns a work of fine art that was taken within 100 years prior to the date of enactment of this statute.”

An earlier version of this law that referred only to Nazi-era art was declared unconstitutional, leading the California legislature in 2010 to broaden the application of this provision to fine arts generally. See the discussion in this chapter’s footnote 166.

43. 267 N.Y.S. 2d 804, 49 Misc. 2d 300 (1966), modified 28 A.D. 2d 516 (1967), 279 N.Y.S. 2d 608; third party case rev’d on other grounds, 24 N.Y. 2d 91, 298 N.Y.S. 2d 979, 246 N.E. 2d 742 (1969).

44. 170 N.J. Super. 75, 405 A.2d 840, 416 A. 2d 862 (1980). See also P. Amram, “The Georgia O’Keeffe Case: New Questions about Stolen Art,” Museum News 49 (Jan.–Feb. 1979); and P. Amram, “The Georgia O’Keeffe Case: Act II,” Museum News 47 (Sept.–Oct. 1979).

45. 24 N.Y. 2d 91 (1969).

46. “Replevin” is an action seeking the return of misappropriated property.

47. Note the previous section on warranties in a sale.

48. The trial court opinion is cited as O’Keeffe v. Snyder, Docket No. L-27517-75 (N.J. Super. Ct., Law Div., Mercer County, July 1978). It is printed in Museum News 50 (Jan.–Feb. 1979).

49. 170 N.J. Super. 75, 405 A. 2d 840 (App. Div. 1979), 848.

50. 83 N.J. 478, 416 A. 2d 862 (1980), 869.

51. O’Keeffe elected not to pursue the case further, and the parties entered into a private settlement.

52. 170 N.J. Super. 75, 416 A. 2d 862 (App. Div. 1979), 870.

53. 170 N.J. Super. 75, 416 A. 2d 862 (App. Div. 1979), 874. See also Desiderio v. D’Ambrosio, 190 N.J. Super. 424, 463 A. 2d 986 (Ch. Div. 1983).

54. 536 F. Supp. 829 (E.D.N.Y. 1981), aff’d, 678 F.2d 1150 (2d Cir. 1982). See also F. Feldman, “The Title to a Work of Art Means Much More Than Just Its Name,” Collector-Investor 38 (Feb. 1982).

55. 658 F. Supp. 688 (S.D.N.Y. 1987), rev’d, 836 F.2d 103 (2d Cir. 1987).

56. Both DeWeerth and Elicofon were tried in federal court. Federal courts, as appropriate, apply the law of the state that is controlling. If the law of the state is unclear, the federal court “makes an estimate of what the state’s highest court would rule to be its law.” The federal court sitting in New York also has the option to submit the unresolved state law issue to the New York Court of Appeals (in other words, it can defer to a New York court to bear the burden of interpreting a questionable issue of state law). That option was not elected in DeWeerth—a case in which the interpretation of the law would alter the outcome—but in its opinion the court does discuss why it decided not to seek state court clarification of the law.

57. After the decision in the later-decided Guggenheim case, which is discussed next, DeWeerth went back to federal court to request a rehearing of her case. The request was granted, and she prevailed: 804 F. Supp. 539 (D.N.Y. 1992). Baldinger then appealed this decision, and she prevailed on a procedural issue. The court held, in effect, that the Guggenheim decision amounted to a change in New York law and that subsequent change in state law is not grounds to reopen a federal diversity case decided under prior law of the state. 28 F. R. Serv. 3d 1231 (2d Cir. 1994), cert. denied, 130 L.Ed. 2d 419, 115 S. Ct. 512 (1994).

58. Solomon R. Guggenheim Foundation v. Lubell, 77 N.Y. 2d 311, 567 N.Y.S. 2d 623, 569 N.E. 2d 426 (N.Y. Ct. App. 1991). A somewhat similar case was initiated by a museum against a college. In this case, an artifact mysteriously disappeared from the college’s collection (a suspected case of employee theft), and the artifact later surfaced in a museum collection. The college had not pursued its loss, but when it eventually learned of the whereabouts of the object, it demanded a return. The museum refused based on the theory that rewarding the college for its negligence would be unjust. Subsequently, the museum sued “to quiet title”—to seek court confirmation of its title. The case was settled out of court. Museum of Fine Arts v. Lafayette College, C.A. #91-10922MA (U.S.D.C., D. Mass. Filed Mar. 27, 1991). In 1990, the Art Institute of Chicago announced that it was officially listing as “lost” one of Georgia O’Keeffe’s works that had been missing for twenty years. The loss was confirmed after a major inventory. The Art Institute then (in 1990) notified law enforcement officials and art-loss registers of the loss. See Chicago Tribune, Aug. 14, 1990, 1.

59. See “Suit over Chagall Watercolor Is Settled Day after Trial Starts,” New York Times, Dec. 29, 1993. A subsequent case that concerns lost art is Hoelzer v. Stamford, 933 F.2d 1131 and 972 F.2d 495 (2d Cir. 1991), cert. denied, 506 U.S. 1035, 121 L.Ed. 2d 687 (1992). Hoelzer is a very convoluted case that involves not theft but a series of highly questionable acts by city and federal employees. See also The Republic of Turkey v. The Metropolitan Museum of Art, 762 F. Supp. 44 (S.D.N.Y. 1990), in which the Metropolitan Museum of Art of New York City sought to have Turkey’s claim for return of antiquities dismissed as time barred under a statute of limitations. The court refused to dismiss and, relying on the Guggenheim reasoning, held that the case would have to be heard on its merits with a weighing of the equities under a “laches” defense. Another case of considerable interest is Autocephalous Greek-Orthodox Church v. Goldberg and Feldman Fine Arts, Inc., 717 F. Supp. 1374 (S.D. Ind. 1989), aff’d, 917 F.2d 278 (7th Cir. 1990). Here, Cyprus was seeking the return of four Byzantine mosaics looted from a church in Cyprus in the late 1970s and purchased in Europe by an American dealer many years later. The decision discusses such questions as the following: The law of which country applies? When did the statute of limitations begin? When can a dealer qualify as a “good-faith” purchaser?

60. When a statute of limitations defense is raised, this matter is examined first by the court before a full trial is conducted. If the court finds, on the evidence presented, that the statute has in fact run, the case is dismissed at that point. In other words, the rest of the case is barred from court. Although a full trial is often required for a laches defense, a New York court dismissed a case without a trial on summary judgment based on a laches defense in a case where delay by plaintiffs to bring suit was so egregious as to require dismissal. Wertheimer v. Cirker’s Hayes Storage Warehouse, Inc., No. 105575/00, slip op. (N.Y. Sup. Ct. Sept. 28, 2001), aff’d, 300 A.D.2d 117 (N.Y. App. Div. 2002).

61. Not long before the Guggenheim case was decided, there had been a series of efforts in New York to pass legislation that would limit the time during which one could question the title of cultural and scientific objects purchased in good faith by nonprofit organizations. In 1985, one of these bills (S. 3273, “An Act to Amend the General Business Law, in Relation to Actions Against Non-Profit Organizations for Recovery of Objects”) actually passed the legislature but was vetoed by the governor because of the fear, expressed by many, that the bill would make New York a haven for art of questionable provenance. In the same year, two similar bills were introduced to the U.S. Congress (S. 605 and S. 1523). Neither bill was favorably acted on when few came forward to endorse either one.

62. See, for example, Autocephalous Greek-Orthodox Church v. Goldberg and Feldman Fine Arts, Inc., 717 F. Supp. 1374 (S.D. Ind. 1989), aff’d, 917 F.2d 278 (7th Cir. 1990); and Eristoy v. Rizek, CA #93-6215, U.S.D.C. (E.D. Pa.), Feb. 23, 1995. In the latter stolen art case, the court, citing O’Keeffe, “balanced the equities” as the proper exercise of the discovery rule. Several articles discuss some of these cases: I. DeAngelis, “Civil Claims for Recovery of Stolen Property: Developments in the Law and Lessons for Museums,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1992); P. Gerstenblith, “Guggenheim and Lubell,” I International Journal of Cultural Property (No. 1, 1992); S. Bibas, “Note: The Case against Statutes of Limitations for Stolen Art,” 103 Yale L.J. 2437 (1994).

63. See Chapter V, “The Disposal of Objects: Deaccessioning.”

64. See Chapter XIV, “Care of Collections,” Section B, “Inventory Procedures and the Reporting of Missing Objects,” for more discussion on this topic.

65. 54 C.J.S., “Limitations of Actions,” § 119, at 23 (1948).

66. Refer to this chapter’s footnote 44 and the last decision, 416 A.2d 862. In this regard, the O’Keeffe court overruled Redmond v. New Jersey Historical Soc., 132 N.J. Eq. 464, 28 A. 2d 189 (1942), a case involving a museum’s refusal to return a painting, which had been placed on loan subject to the occurrence of certain events.

67. But see Wogan v. State of Louisiana, No. 81-2295 (La. Civ. Dist. Ct. for Parish of Orleans, Jan. 8, 1982). Wogan involved a demand for the return of a painting originally placed on loan in a museum and subsequently claimed by the museum as its own. Citing the peculiarities of Louisiana law, the court would not recognize an adverse possession defense. See also discussions in Chapter VII, “Unclaimed Loans,” and Chapter X, “Objects Found in the Collections.”

68. See Chapter IV, “The Acquisition of Objects: Accessioning,” Section D.6, “Objects Improperly Removed from Their Countries of Origin.”

69. Section 312 of Pub. L. 97–446. Property imported for temporary exhibit and protected by a declaration of immunity from seizure under 25 U.S.C. § 2549 is also exempt.

70. The term “provenance” refers to information on the history of an object. This includes its creation, the trail of ownership, exhibition, and publication. “Provenience” is a term used to define a work’s archaeological find spot. An object’s provenience is a part of its provenance. S. Urice, “Antiquities as Cultural Property: Dealing with the Past, Looking to the Future—An Introduction,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Issues in Museum Administration (Philadelphia: ALI-ABA, 2007), 26, 25, n2. “Unprovenanced” objects are those that come with no information about their history. A complete provenance would show an unbroken link from the time it was created (or discovered) until today. Rarely do any objects have such complete histories. The only exceptions are objects scientifically excavated, documented, and then published. Incomplete or partial provenance refers to objects with some history of ownership, while objects with no provenance refers to those that are on the art market in the hands of a dealer or auction house with no other information as to their origin. S. Urice, “Between Rocks and Hard Places: Unprovenanced Antiquities and the National Stolen Property Act,” 40 New Mex. L. Rev. 123, 125 (2010).

71. Undocumented property claims can also be national rather than international in nature. For example, a clandestine removal of archaeological material from federal or Native American lands in this country would give rise to a claim on the part of the U.S. government or the appropriate tribe, and it would present many of the difficulties of proof inherent in an “undocumented property” claim brought in a U.S. court by a foreign country.

72. “Art rich” nations are also called “source nations,” and “art poor” nations are also called “market nations.” The term “cultural properties” is generally defined to mean properties that, on religious or secular grounds, are designated by a nation as being of unique importance to the nation for reasons relating to archaeology, prehistory, history, literature, art, or science. As highlighted by the implementation of the Native American Graves Protection and Repatriation Act (1990), the use of the term “cultural property” to include human remains is offensive to many. See also J. Merryman, “The Public Interest in Cultural Property,” 77 Calif. L. Rev. 339 (1989), reprinted in J. Merryman, Thinking about the Elgin Marbles: Critical Essays on Cultural Property, Art and Law, 2d ed. (London: Kluwer Law International, June 2009). At its twentieth session in 1978, the General Conference of UNESCO defined it as follows: “ ‘cultural property’ shall be taken to denote historical and ethnographic objects and documents including manuscripts, works of the plastic and decorative arts, paleontological and archeological objects, and zoological, botanical, and mineralogical specimens” (Article 3, para. 1), accessed May 6, 2011, http://unesdoc.unesco.org/Images/0014/001459/145960e.pdf.

73. This is a very general statement. The extent of these “unique claims” and how such determinations are made continue to be debated. For differing viewpoints, see J. Cuno, Who Owns Antiquity? Museums and the Battle over Our Ancient Heritage (Princeton, N.J.: Princeton U. Press, 2008); K. Gibbon, ed., Who Owns the Past? Cultural Policy, Cultural Property, and the Law (New Brunswick, N.J.: Rutgers U. Press, 2005); P. Messenger, The Ethics of Collecting Cultural Property: Whose Ethics? Whose Property? (Albuquerque: U. of New Mexico Press, 1989); J. Merryman, “The Nation and the Object,” 3 International Journal of Cultural Property (1994); J. Greenfield, The Return of Cultural Treasurers (New York: Cambridge U. Press, 1989); and E. Green, ed., Ethics and Values in Archeology (New York: Free Press, 1984).

74. P. Sheets, “The Pillage of Prehistory,” 38 Am. Antiquity 317, 319 (1973). See also C. Coggins, “Archeology and the Art Market,” 175 Science 263 (1972); M. Robertson, “Monument Thievery in Mesoamerica,” 37 Am. Antiquity 147 (1972); “International Protection of Cultural Property,” 1 Art Research News (No. 2, 1981); O. Acar and M. Kaylan, “The Hoard of the Century,” Connoisseur 74 (July 1988); G. Chippendale et al., “Collecting the Classical World: First Steps in a Quantitative History,” 10 Int’l J. of Cultural Prop. 1 (2001); M. Braden, “Trafficking in Treasures,” 3 American Archaeology 19 (No. 4, Winter 1999–2000); R. Atwood, “Guardians of the Dead,” 56 Archeology (No. 1, Jan./Feb. 2003); M. Braden, “Trafficking in Treasures,” 3 American Archaeology 19 (No. 4, Winter 1999–2000).

75. C. Coggins, “Illicit Traffic of Pre-Columbian Antiquities,” 29 Art J. 94 (1969).

76. S. Urice, “Antiquities as Cultural Property: Dealing with the Past, Looking to the Future, An Introduction,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Issues in Museum Administration (Philadelphia; ALI-ABA 2007), 23, 29; P. Bator, “An Essay on the International Trade in Art,” 34 Stan. L. Rev. 275 (1982). This article was also published in book form: P. Bator, The International Trade in Art (Chicago: U. of Chicago Press, 1983), 9–13.

77. INTERPOL (International Criminal Police Organization) is a voluntary organization that promotes and organizes collaboration among national law enforcement agencies. The General Secretariat of INTERPOL is located in Lyons, France. INTERPOL has a network of some 170 member countries, and one of its most important roles is to act as a clearinghouse for information on offenses considered to be of international interest (accessed May 9, 2011, http://www.interpol.int).

78. INTERPOL provides a system for circulating information in the form of a database accessible to member countries as well as in CD-ROM form (accessed May 9, 2011, http://www.interpol.int/Public/WorkOfArt/Default.asp). Key to recovery is an efficient and standard international documentation system. See R. Thornes, Protecting Cultural Objects through International Documentation Standards: A Preliminary Survey (Malibu, Calif.: Getty Art History Information Program, 1995), 7. Object ID, an international standard was initiated by the J. Paul Getty Trust and has been maintained since 2004 by the International Council of Museums (ICOM) (accessed May 9, 2011, http://archives.icom.museum/object-id/). ICOM is a nongovernmental organization composed of museums and representatives of museums. It was established in 1946 and has its headquarters in Paris. For ICOM’s early role in working for international restraints on the illicit international movement of cultural property, see J. Nafziger, “Regulation by the International Council of Museums: An Example of the Role of Non-Governmental Organizations in the Transnational Legal Process,” 2 Denver J. of Int’l L. and Pol’y 231 (1972). See also S. Ciccotti, “ICOM Celebrates 50 Years of Global Activism,” Museum News 28 (Nov.–Dec. 1996).

80. Stolen Art Alert 1 (July 1982).

81. Historically, the U.S. government has viewed Native American tribes as foreign nations, as evidenced by its negotiation of treaties with individual tribes. To this day, Native American tribes are reserved certain rights of self-government. The issue of Native American repatriation claims is discussed more fully in this chapter’s Section D.6.i, “Native American Graves Protection and Repatriation Act.”

82. See “Repatriation and the Law,” in M. Malaro, Museum Governance: Mission, Ethics, Policy (Washington, D.C.: Smithsonian Institution Press, 1994).

83. A copy of the text of the convention may be found on the UNESCO website; accessed May 9, 2011, http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html.

84. For a brief account of the history of the convention and reactions to it, see A. Zelle, “Acquisitions: Saving Whose Heritage?,” Museum News 19 (Apr. 1971). See also ICOM News for Sept. 1969 and for Mar., June, and Sept. 1970. The most comprehensive study of the history of the UNESCO Convention is found in P. Bator,

“An Essay on the International Trade in Art,” 34 Stan. L. Rev. 275 (1982). This article was also published in book form: P. Bator, The International Trade in Art (Chicago: U. of Chicago Press, 1983). The UNESCO Convention does not address the subject of protecting underwater cultural heritage, which is subject to a separate 2001 UNESCO Convention on the Protection of Underwater Heritage, which is available online; accessed May 9, 2011, http://portal.unesco.org/culture/en/ev.php-URL_ID=34114&URL_DO=DO_TOPIC&URL_SECTION=201.html.

In addition to pursuing an international solution, the increased publicity given to the illicit traffic in pre-Columbian artifacts in the 1960s caused the United States to take two significant steps. The first was to enter into the bilateral Treaty of Cooperation between the United States of America and the United Mexican States Providing for the Recovery and Return of Stolen Archeological, Historical, and Cultural Properties, which was signed on July 17, 1970 (22 U.S.T. 494), in which the United States and Mexico agreed to cooperate in the recovery and return of certain cultural properties. In October 1972, Congress passed Pub. L. 92–587 (86 Stat. 1297), which regulates the importation of monumental-type pre-Columbian artifacts.

The treaty concerns itself with the recovery and return of “archeological, historical, and cultural properties” that belong to either country.

Under the treaty, both countries undertake to encourage the proper excavation and study of archaeological sites, to deter illicit excavations and the theft of properties covered by the treaty, to encourage the exhibit in both countries of properties covered by the treaty, and to permit legitimate international commerce in art objects. Also, each country agrees to assist in the return from its territory of stolen property covered by the treaty, and if the requesting party cannot otherwise effect recovery, the attorney general of the country where the property is located is authorized to institute civil proceedings on behalf of the requesting party. Expenses incident to a return are borne by the requesting party. Apparently, the first time Mexico asked for the assistance of the U.S. attorney general in this regard was in July 1978. At issue were pre-Columbian murals bequeathed to the de Young Museum in San Francisco. See B. Braun, “Subtle Diplomacy Solves a Custody Case,” Art News 100 (Summer 1982).

The second step to curtail the import of looted pre-Columbian material was to pass a law, Regulating the Importation of Pre-Columbian Monumental or Architectural Sculpture or Murals, Pub. L. 92–587, enacted in October 1972 (19 U.S.C. §§ 2091 et seq.). This law establishes a method of halting the importation into the United States of certain monumental-type pre-Columbian artifacts. The statute empowered the secretary of the treasury to promulgate a current list of stone carvings and wall artworks that are pre-Columbian monumental or architectural sculpture or murals; objects covered in the list cannot be imported into the United States without proof of a valid export permit from the country of origin. The statute is enforced at U.S. borders by U.S. Customs agents, and contraband objects are subject to forfeiture.

Articles forfeited to the United States are first offered for return to the country of origin, but the country of origin must bear all expenses incident to the return.

85. Statement by Mark B. Feldman, then assistant legal advisor for Inter-American affairs, Department of State, before the Senate Committee on Foreign Relations.

86. An excellent overview of the divergent views expressed can be found in the legislative histories of the bills proposed to implement the convention: H.R. 5643 of the 95th Cong., H.R. 3403 of the 96th Cong., S. 1723 of the 97th Cong., 1st sess., and H.R. 4566 of the 97th Cong., 2d sess., the bill that eventually became law. See also L. DuBoff et al., “Proceedings of the Panel on the U.S. Enabling Legislation of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property,” 4 Syracuse J. Int’l L. & Com. 97 (1976); and M. Wisner, “Implementing the Convention on Illicit Traffic in Antiquities: Proposals, Past, and Prospective,” 2 Art Research News 3 (No. 1, 1983). The definitive work, as noted in this chapter’s footnote 82, is P. Bator, “An Essay on the International Trade in Art,” 34 Stan. L. Rev. 275 (1982). This article was also published in book form: P. Bator, The International Trade in Art (Chicago: U. of Chicago Press, 1983).

87. The values expressed in the debate by the collecting community versus the countries of origin (shared in part by the archaeological community) have been summarized as follows:

Collecting community: emphasis on humanity’s common interest in the past; favoring a free market in antiquities to make such a past widely available to museums and the public; the object does not necessarily belong to the current political state where it was discovered; art as ambassador should be free to travel across borders; source nation embargoes are the cause for the black market; objects without provenance still provide aesthetic and other educational value.

Countries of origin joined in some respects by the archaeological community: emphasis on a connection between cultural objects and national identity; any object found within a nation’s borders naturally belongs to the people of that nation; importance of preserving archaeological sites until they can be scientifically excavated as the only way to preserve their scientific and historical value; belief that the art market fuels looting and pillage.

See S. Urice, “Antiquities as Cultural Property: Dealing with the Past, Looking to the Future—An Introduction,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Issues in Museum Administration (Philadelphia: ALI-ABA, 2007), 23, 25, n.4. Compare the Brief submitted by the American Association of Museums, et al., as a friend of the court, with the Memorandum of Law submitted by the Archaeological Institute of America, et al., in the appeal of the so-called Steinhardt case: United States v. An Antique Platter of Gold, 184 F.3d 131 (2d Cir. 1999).

88. Title II of Pub. L. 97–446 is available online at the U.S. Department of State website on its Bureau of Educational and Cultural Affairs’ Cultural Heritage Center’s International Cultural Property Protection page; accessed May 9, 2011, http://exchanges.state.gov/heritage/index.html. Interestingly, in Sept. 1977, Canada adopted a Cultural Property Export and Import Act (Chapter 50.23–24, Elizabeth II, Vol. 1, No. 9, Canada Gazette, Part III), a portion of which is designed to implement the UNESCO Convention. The Canadian act provides a relatively simple format whereby the attorney general of Canada is charged with instituting the legal proceedings necessary to resolve claims of countries of origin. For a discussion of the Canadian act, see I. Clark, “The Cultural Property Export and Import Act: Legislation to Encourage Co-operation,” 2 Art Research News 8 (No. 1, 1983). One of the first cases arising under the act attracted international interest. In 1981, the New York art dealer Ben Heller brought into Canada for authentication by the Glenbow Museum in Calgary, and for possible sale, a Nigerian Nok sculpture. While in Canada, Heller and the owner of the sculpture, a Mr. Zango, were arrested by the Canadian government when they could not produce a Nigerian export license. A major issue in the case was what “illegal export” means under the Canadian statute. Does this phrase mean illegal export from the country of origin only after the effective date of the Canadian statute (1977) and/or Canada’s acceding to the UNESCO Convention (1978), or does it mean illegal export at any time, even years before these dates? See Between Her Majesty the Queen and Heller, Zango, and Kassam, In the Court of Queen’s Bench of Alberta, Judicial District of Calgary (Canada), as reported in Stolen Art Alert (Jan.–Feb. 1982) and (Oct. 1983). For another point of view on the Nigerian Nok case, see E. Eyo, “Repatriation of Cultural Heritage: The African Experience,” in F. Kaplan, ed., Museums and the Making of “Ourselves” (London: Leicester U. Press, 1994), 339–40.

89. See Chapter VIII, “International Loans,” for a description of this statute and current legal problems with its implementation

90. The authority for carrying out provisions of the CCPIA was transferred from the U.S. Information Agency (USIA) in 1998 to the secretary of state by the Foreign Affairs Reform and Restructuring Act, 22 U.S.C. 5401, et seq.

91. The U.S. Department of State website on its Bureau of Educational and Cultural Affairs’ Cultural Heritage Center’s International Cultural Property Protection page includes copies of the 1970 Convention and the CCPIA and CCPIA-based import restrictions, and the Cultural Property Advisory Committee page includes descriptions of membership and activities as well as a current list of convention signatories. The database of current import restrictions includes sample images of categories of import-restricted objects; http://exchanges.state.org.gov/heritage/culprop.html.

92. Accessed May 9, 2011, http://exchanges.state.gov/heritage/index.html.

93. See the list of signatories to the 1970 UNESCO Convention and the dates on which they signed on the Department of State website for cultural property; accessed May 30, 2011, http://exchanges.state.gov/heritage/culprop/background.html.

94. For the text of the convention, see the UNIDROIT website at http://www.unidroit.org. For the early history of UNIDROIT involvement, see the explanatory report that accompanies The International Protection of Cultural Property, a preliminary report issued by UNIDROIT in Aug. 1990. See also B. Hoffman, “How UNIDROIT Protects Cultural Property,” N.Y.L.J. (Mar. 3, 10, 1995); C. Lowenthal, “Stolen Art: A Positive Move toward International Harmony,” Museum News 22 (No. 5, Sept.–Oct. 1991); and L. Prott, “UNIDROIT Draft Convention Focuses on Purchasers,” Museum 221 (Vol. XLIII, No. 4, 1991).

95. One such case involving a documented object was Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feldman Fine Arts, Inc., 717 F. Supp 1374 (S.D. Ind. 1989), aff’d, 917 F. 2d 278 (7th Cir. 1990), in which mosaics that had been photographed on the walls of a church in Cyprus and published in an international publication in 1977 were apparently chipped away by looters and discovered in the hands of an art dealer in 1988.

96. McClain I, 545 F.2d 988 (5th Cir. 1977); McClain II, 593 F.2d 658 (5th Cir. 1979), cert. denied, 444 U.S. 918.

97. 720 F. Supp. 810 (C.D. Cal. 1989).

98. United States v. Schultz, 178 F. Supp 2d 445 (S.D. N.Y. 2002), aff’d 333 F3d 393 (2d Cir. 2003), cert. denied 157 L.Ed. 2d 891 (U.S. 2004).

99. An example of such an international agreement is the Treaty of Cooperation between the United States of America and the United Mexican States Providing for the Recovery and Return of Stolen Archeological, Historical, and Cultural Properties, 22 U.S.T. 494. The treaty, which is discussed in this chapter’s footnote 84, provides for the return, through diplomatic channels, of stolen archaeological, historical, and cultural objects that belong to the government. In United States v. McClain, this treaty was not invoked by Mexico, possibly because the treaty applies to objects of outstanding importance to the national patrimony and the objects at issue in McClain were not of this stature. Instead, criminal charges for theft were filed against the defendants by U.S. federal law enforcement officials.

100. J. Story, Commentaries on the Conflict of Laws, 8th ed. (Boston: Little Brown, 1883), § 18; J. Moore, A Digest of International Law (Washington, D.C.: Government Printing Office, 1906), 236; P. Bator, “An Essay on the International Trade in Art,” 34 Stan L. Rev. 275 (1982); this article was also published in book form: The International Trade in Art (Chicago: U. of Chicago Press, 1983).

101. See this chapter’s footnote 96.

102. An earlier case, United States v. Hollinshead, 495 F.2d 1154 (9th Cir. 1974), was similar in nature but did not arouse such interest. Hollinshead, a California art dealer, was arrested for violating the National Stolen Property Act when he was found to possess a pre-Columbian stela allegedly stolen from Guatemala. The prosecution was able to prove that the stela was removed from Guatemala, that the laws of Guatemala vested title to such property in the state, and that Hollinshead was aware of such laws. Hollinshead was convicted, and his conviction was sustained on appeal. Perhaps this case did not create as much controversy as United States v. McClain because Hollinshead involved a stela, a piece readily identified as a choice cultural object and one commonly known to be subject to control by its country of origin. In addition, the stela in question had been documented in situ some years earlier by the noted archaeologist Ian Graham. In McClain v. United States, the objects at issue were movable pre-Columbian artifacts, a category not so readily associated with state control. It is easier to imagine the innocent possession of movable pre-Columbian material than it is the innocent possession of stelae.

103. 18 U.S.C. §§ 2314, 2315, and, regarding the conspiracy charge, 18 U.S.C. § 371.

104. Literally, “friend of the court.” With this status, one who is not a party to a case is granted permission to advise the court on the merits of the case.

105. If Mexican law merely imposed an export tax, a U.S. court would not normally entertain a suit to enforce such a foreign tax. If the foreign law made export a theft, then, as noted before, a U.S. court might entertain a foreign country’s civil suit for the return of the material. Note, however, that McClain was a criminal action to enforce a foreign law.

106. 593 F.2d 658, 665–66. The court was saying, in essence, that the pre-1972 Mexican statutes would not be enforced because under U.S. constitutional standards they were “void for vagueness.”

107. United States v. Schultz, 178 F. Supp 2d 445 (S.D. N.Y., 2002) aff’d 333 F3d 393 (2d Cir. 2003), cert. denied 157 L.Ed. 2d 891 (U.S., 2004).

108. He had appeared at public meetings of the Cultural Property Advisory Committee on behalf of the trade as president of the National Association of Dealers in Ancient, Oriental and Primitive Art, often to argue against the imposition of temporary CCPIA import restrictions. For example, on October 12, 1999, he submitted written testimony before the Open Session of the Cultural Property Advisory Committee Concerning the Application of Italy for protection under the CCPIA in which he stated that “on this request for a complete, country-wide, blanket embargo, we should show them [Italy] ‘tough love,’ deny the request … and work towards a market solution for a market problem.”

109. Ultimately, Tokeley-Parry was caught by New Scotland Yard, convicted in 1997, and served three years in jail. It was Tokeley-Parry who led investigators to Schultz by identifying him as his co-conspirator.

110. Tokeley-Parry and Schultz identified the antiquities as coming from the Thomas Alcock Collection. Thomas Alcock was one of Tokeley-Parry’s deceased relatives. That relationship allowed Tokeley-Parry to present himself as Alcock’s heir for purposes of selling the collection.

111. The fake provenance placed the objects outside of Egypt before applicable laws were enacted.

112. Schultz, 333 F. 3d 393, 416, citing United States v. Leo, 941 F. 2d 181, 197 (3d Cir. 1991).

113. Schultz, 333 F. 3d 393, 415.

114. Schultz, 333 F. 3d 393, 409. The Archeological Institute of America, the American Anthropological Association, the Society of American Archeology, the Society of Historical Archaeology, and the U.S. Committee for the International Council on Monuments and Sites filed amicus briefs arguing that applying the National Stolen Property Act enforced this way would go a long way in protecting archeological sites worldwide.

115. For a discussion of the Schultz case and its application to museum collections, see S. Urice, “Between Rocks and Hard Places: Unprovenanced Antiquities and the National Stolen Property Act,” 40 New Mex. L. Rev. 123 (Winter 2010).

116. Prior to this case, some may have ignored foreign patrimony laws, relying on the 1989 Government of Peru v. Johnson case in which a court held that Peruvian patrimony laws were unclear and akin to export controls, not statutes vesting ownership, and would not be given credence by U.S. courts. After the Schultz case, ignoring or dismissing patrimony laws is nothing short of reckless. See “Culpable Ignorance? Museums Worry about Jury Instructions in Antiquities Conviction Case,” The Art Newspaper, Jan. 9, 2002, accessed Jan. 7, 2005, http://62.253.251.9/access/artnewspaper.html (Record Number 14994).

117. A. Hawkins, “ ‘US v. Schultz’: US Cultural Policy in Confusion” The Art Newspaper, Jan. 9, 2003, http://62.253.251.9/access/artnewspaper.html (Record Number 17370). Fortunately some assistance in locating and translating foreign laws is now available through the International Foundation for Art Research (IFAR). As a result of grants from the Institute of Museums and Library Services (IMLS) and from several private foundations, IFAR established online databases on its “Art Law and Cultural Property” web page. The web page includes two sets of resources: 1) the International Cultural Property/Ownership and Export Legislation (ICPOEL) and 2) Case Law and Statutes (CLS). Also included is Country Contacts, information on the government officials in each country to whom questions may be addressed; http://www.ifar.org/art_law.php. This web page is free but requires a user to provide an e-mail address. (See also the reference to IFAR in Chapter XIV, “Care of Collections,” footnote 15).

118. In the civil context, the Schultz case has additional implications for civil suits. Title to undocumented antiquities can be subject to challenge by countries of origin in civil cases brought in the United States basing ownership on patrimony laws. The burden on a source country seeking restitution in a civil case is to prove ownership via the patrimony law and removal of the state-owned object across its borders after the ownership-vesting statue was enacted. No proof of guilty knowledge of the law in a civil context is required.

119. P. Gerstenblith, “An Internationally Respectful Application of National Law,” The Art Newspaper, Jan. 7, 2004, accessed Jan. 6, 2005, http://62.253.251.9/access/artnewspaper.html (Record Number 19073). The Schultz case is considered a “major setback for the beleaguered US antiquities market.” R. Elia, “A Move in the Right Direction,” The Art Newspaper, Jan. 9, 2003, accessed Jan. 6, 2005, http://62.253.251.9/access/artnewspaper.html (Record Number 17370). It may be anticipated that as a result of the Schultz case countries of origin without patrimony laws in place will now have ample incentive to quickly pass and enforce such laws. In addition, source countries should be increasing their efforts to document antiquities within their borders, including those legally excavated, in private hands and in public collections, so that every undocumented object removed after the enactment of the patrimony law may be identified by default to have been looted from an unexcavated site. Certainly, developments in standardized object identification data collection and digital imaging and text database management will make these documentation efforts easier and more effective in the future. Moreover, the problem that the objects must be traced to have originated within the modern-day borders of a source country may be resolved successfully if bordering countries were to agree to cooperate on such recovery efforts and seek return of objects as joint claimants. See Government of Peru v. Johnson, 720 F. Supp. 810 (C.D. Cal. 1989), aff’d sub nom., Government of Peru v. Wendt, 933 F.2d 1013 (9th Cir. 1991), discussed above, in which Peru’s case would have been significantly stronger had its neighboring countries that had pre-Columbian excavation sites joined in the case. As for international efforts for standardization of object identification data, see this chapter’s footnote 78.

120. For an account of the Italian investigations and where they led, see J. Felch and R. Frammolino, Chasing Aphrodite: The Hunt for Looted Antiquities at the World’s Richest Museum (Boston: Houghton Mifflin Harcourt, 2011); see also V. Silver, “Lost Art,” Bloomberg Markets 125–132 (Dec. 2005). The Getty allegedly had forty-two objects handled by Medici that match photographs found in the raid of his Swiss warehouse. The Metropolitan Museum of Art allegedly has six objects that match Medici’s photos.

121. The curator, in a statement that was submitted as evidence in her trial, maintained that she followed her museum’s policies and procedures for acquisition, and, indeed, when she first became curator in the mid-1980s, she helped draft a memo to her museum’s board to explore whether it was possible to continue to collect antiquities in a tainted market. V. Silver, “Getty Curator Says Antiquities Trade ‘Corrupt,’ Art Smuggled,” Bloomberg.com, Nov. 10, 2006.

122. In the meantime, Italian authorities filed a civil suit for restitution in Rome that paralleled the criminal prosecution. This suit was dismissed in 2007 as other strategies discussed above for recovery proved fruitful.

123. F. D’Emilio, “Rome: Ex-Getty Curator Trafficking Trial Ends in Italy,” Entertainment News, Associated Press, Oct. 13, 2010.

124. As a result of these negotiations, a number of agreements for return of suspect artifacts between Italian authorities and American museums followed. The Metropolitan Museum of Art and Republic of Italy Agreement was signed Feb. 21, 2006. It agreed to return the famous “hot pot” Euphronius krater, a Hellenistic silver collection, and four other pieces. The Getty signed a similar agreement in August 2007 agreeing to return forty works to Italy. Four of these works, insured for about $425 million, were returned in early October 2007 and will be distributed to Italian museums. But first the works were put on exhibit at the Qurinale Palace in Rome at the end of December 2007. Associated Press Wordstream, “Italy’s Presidential Palace to Host 40 Artifacts Returned from Getty Museum,” Associated Press, Oct. 3, 2007. Princeton University reached agreement on eight artifacts with Italy on October 20, 2007. The Cleveland Museum of Art entered into an agreement with Italy in November 19, 2008, for thirteen antiquities and a late Gothic cross after an eighteen-month negotiation. S. Litt, “Cleveland Museum of Art Strikes Deal with Italy to Return 14 Ancient Artworks,” Cleveland Plain Dealer, Nov. 19, 2008. The Museum of Fine Arts, Boston transferred thirteen antiquities to Italy and signed an agreement for cultural exchange on September 28, 2006. Press Release, “Museum of Fine Arts, Boston and Italian Ministry of Culture Sign Agreement Marking New Era of Cultural Exchange: MFA Transfers 13 Antiquities to Italy” (Sept. 28, 2006), accessed May 6, 2011, http://www.mfa.org/collections/art-past/italian-ministry-culture-agreement. The University of Virginia returned two ancient sculptures in 2008. See J. Kreder, “The Revolution in U.S. Museums Concerning the Ethics of Acquiring Antiquities,” 64 U. Miami L. Rev. 997, 1010 (Apr. 2010). In 2002, at the beginning of the restitution movement, a statement was issued by the world’s largest museums in possession of antiquities, called “The Universal Museum Statement,” in which they were essentially justifying museum collecting. C. Bohlen, “Major Museums Affirm Right to Keep Long-Held Antiquities,” New York Times, Dec. 11, 2002.

125. Not all the texts of these agreements were made public, but reportedly all the agreements address museum practices for future acquisitions. The Metropolitan Museum of Art’s agreement, which was released, states that “all collecting will be done with the highest criteria of ethical professional practice.” The text of the agreement is reproduced online at http://www.scoop.co.nz/stories/HL0602/S00265.htm, accessed Aug. 8, 2011. Reportedly, the Museum of Fine Arts, Boston agreement went further in that the museum agreed to inform the Italian Ministry of Culture of any future acquisitions, loans, or donations of objects that could have an Italian origin. See E. Povoledo, “Boston Art Museum Returns Works to Italy” New York Times, Sept. 29, 2006, accessed Aug. 8, 2011, http://query.nytimes.com/gst/fullpage.html?res=9C01EFD91630F93AA1575AC0A9609C8B63&pagewanted=1.

126. S. Urice, “Between Rocks and Hard Places: Unprovenanced Antiquities and the National Stolen Property Act,” 40 New Mex. L. Rev. 123 (Winter 2010), n.2. The warrants alleged that several museums participated in one or more illegal activities, including tax fraud conspiracy to inflate the value of donated objects and possession of antiquities stolen from China, items stolen from Thailand, illegally imported antiquities from Burma, and Native American resources removed from public lands without a permit.

127. S. Urice, “Between Rocks and Hard Places,” 148–149.

128. S. Urice, “Between Rocks and Hard Places,” 149–151.

129. F. Goldstein, “Introduction: Cultural Property and Provenance: What’s New about What’s Old,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Issues in Museum Administration (Philadelphia: ALI-ABA, 2009).

130. In the confirmation of the UNESCO Convention, the Senate specifically noted that it was not the intention of Congress to enact legislation to control the acquisition policies of museums generally. This “reservation” was directed to Article 7(a) of the convention:

The State parties to the Convention undertake:

(a) to take the necessary measures, consistent with national legislation, to prevent museums and similar institutions within their territories from acquiring cultural property originating in another State Party which has been illegally exported after entry into force of this Convention, in the States concerned. Whenever possible, to inform a State of origin Party to this Convention of an offer of such cultural property illegally removed from that State after the entry into force of this Convention in both States.

In the opinion of Congress, museums would voluntarily conform their policies to meet the standards expressed in the convention. In fact, professional organizations did begin to issue position papers urging their members to put into practice the principles underlying the convention, and some institutions quickly responded with actual policies.

See the “Report of the Special Policy Committee of the American Association of Museums,” as reported in Museum News (May 1971). The committee submitted to the Council of the American Association of Museums recommendations on the proposed UNESCO Convention. In 1973, the American Association of Museums, the College Art Association, the Archeological Institute of America, the U.S. Committee of the International Council of Museums, the Association of Art Museum Directors, and the American Anthropological Association joined in adopting and promulgating a resolution that stressed the ethical and professional responsibilities of museums to support the principles of the UNESCO Convention. The Code of Ethics for Art Historians, adopted by the College Art Association as of January 24, 1995, gives more information on this resolution.

The first museum to announce an acquisition policy of this nature was the University of Pennsylvania Museum on April 1, 1970. Besides Harvard University and the Smithsonian Institution discussed above, others included the California State University at Long Beach; the Field Museum; Southern Illinois University; Washington State Museum in Seattle; Peabody Museum in Salem, Massachusetts; Arizona State Museum in Tucson; and the Utah Museum of Natural History. See P. Bator, The International Trade in Art (Chicago: U. of Chicago Press, 1983, Midway reprint ed., 1988), n.144. Notably absent from this original list are major private art museums. To the author’s knowledge, there have been no studies to evaluate the implementation of these policies.

131. This was in spite of a resolution on museum acquisitions issued in January 1973 by the American Association of Museum Directors (AAMD), whose membership includes the directors of major American art museums, urging its members to cooperate fully with foreign countries to prevent the illicit traffic in works of art. The AAMD resolution was adopted on January 23, 1973, and published in an article, “The AAMD Takes a Stand,” Museum News 49 (May 1973). This resolution confirmed the belief of the AAMD that art museums can best implement such goals by refusing to acquire objects in violation of the relevant laws “obtaining in the countries of origin” and specifically recommending to boards of art museums that they promulgate “an appropriate acquisition policy statement.”

132. Association of Art Museum Directors, “A Code of Ethics for Art Museum Directors as Adopted by the Association of Art Museum Directors in 1981,” in Professional Practices in Art Museums: Report of the Ethics and Standards Committee (New York: Association of Art Museum Directors, 1981 AAMD Code).

133. By contrast, the position of archaeologists shared by source nations is that an unprovenanced antiquity of museum quality can be presumed to be the product of illicit looting. Acquisition by museums of unpro v - enanced objects fuels such activity that leads to the irretrievable loss of knowledge and destruction of sites (including other less market-desirable objects) resulting from unscientifi c excavation. S. Urice, “Antiquities as Cultural Property: Dealing with the Past and Looking to the Future,” in American Law Institute—American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 2007) 23, 26. Note also that these guidelines technically would have permitted the acquisition of an object that was merely illegally exported, as opposed to “stolen.” A justifi cation for the lack of compliance to foreign export controls was the belief that export regulations of source countries are in effect an embargo on trade as export permits are rarely, if ever, issued. As implemented, such foreign export controls are contrary to U.S. policies that support free trade in cultural goods.

134. Association of Art Museum Directors, “A Code of Ethics for Art Museum Directors as Adopted by the Association of Art Museum Directors in 1992,” in Professional Practices in Art Museums: Report of the Ethicsand Standards Committee (New York: Association of Art Museum Directors, 1992 AAMD Code). The 1992 AAMD Code declared that it is unprofessional for art museum director members

(C) To acquire knowingly or allow to be recommended for acquisition any object that has been stolen, removed in contravention of treaties and international conventions to which the United States is a signatory, or illegally imported into the United States.

This provision refers to U.S. laws, treaties, and conventions as limited by U.S. laws only. Note that the 1989 Government of Peru v. Johnson case that was decided three years before the AAMD issued this revised policy may have influenced this change as that case was often cited for the proposition that broad foreign patrimony laws that declared all cultural property to be state owned would not necessarily be recognized as valid proof of ownership by U.S. courts. Decision makers may have concluded (with some risk as it turns out) that the concerns of foreign patrimony laws could be dismissed after an object had entered the United States and had come under U.S. jurisdiction. In other words, the object need not be considered “stolen” if it was taken in violation of a foreign patrimony law because U.S. courts would probably not define theft in that way.

135. Under both the 1981 and the 1992 versions of the AAMD Code, the absence of information about an object would not work to prevent its acquisition, as only “actual knowledge” of theft would suffice. Such a standard invites a blind eye, which in turn leaves no margin for error. American art museums were seemingly content to protect themselves from financial damage when buying unprovenanced objects by requiring written warranties from “reputable dealers” who could be found later to pay up if it should prove to be necessary to invoke warranties, although the AAMD codes did not specifically require warranties. Note that in the event any director member of AAMD violates these guidelines on professional conduct, he or she can be reprimanded or dismissed from the organization and the director’s museum can be subject to sanctions such as suspension of loans or shared exhibitions. To the authors’ knowledge, no reprimands or expulsions have been reported for errant acquisition practices.

For example, from 1987 to 1995, the Getty policy required warranties from dealers that included warranties of clean title, of legal export, and that all other customs and patrimony laws, regulations, and requirements of all relevant countries had been met. The J. Paul Getty Museum Acquisition Policy for Classical Antiquities, November 13, 1987, states that “[a]ll transactions will be with vendors of substance and established reputations in order that such transactions shall be covered by enforceable warranties.” Presumably “reputable dealers” could be located should a problem arise and would have the financial capacity to make good on the warranty. The AAMD published a new version of its Professional Practices in Art Museums in 2001. In that document, for the first time, there is a provision directing investigation of provenance as a step in the acquisition process: “The director must ensure that best efforts are made to determine the provenance of a work of art considered for acquisition” (Paragraph 18). No further guidance is given.

136. For the application of these guidelines to a hypothetical collection, see I. DeAngelis, “How Much Provenance Is Enough: Post Schultz Guidelines for Museum Acquisition of Archeological Materials and Ancient Art,” B. Hoffman, ed., Art and Cultural Heritage: Law, Policy and Practice (Cambridge: Cambridge U. Press, 2006) 398–408.

137. For an excellent discussion of the similarities and differences between the two policies, see S. Cott and S. Knerly, “Comparison of the Report of the AAMD Task Force on the Acquisition of Archaeological Material and Ancient Art (revised 2008) and the American Association of Museums Standards Regarding Archaeological Material and Ancient Art (July 2008),” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Issues in Museum Administration (Philadelphia: ALI-ABA, 2009).

138. Accessed Apr. 4, 2011, http://aamdobjectregistry.org.

139. See the new Getty policy issued in 2006: “Policy Statement: Acquisitions by the J. Paul Getty Museum, Adopted by the Board of Trustees of the J. Paul Getty Trust on October 23, 2006,” Fig. IV.10. A moratorium on the acquisition of undocumented antiquities was also declared by the Indianapolis Museum of Art (IMA) on April 16, 2007, which will remain in effect while the IMA “evaluates and reframes” its current policies on the collection of antiquities and ancient art. “[W]e hope it will be a small step towards stemming the tide of illegal excavation or clandestine removal of accidentally discovered objects from countries the world over,” said IMA director and CEO Maxwell Anderson in an internet posting on April 30, 2007; accessed May 6, 2011, http://www.elginism.com/20070430/723/. The IMA subsequently adopted the changes outlined in the new 2008 AAMD guidelines. So did the Metropolitan Museum of Art. In June 2008 the Executive Committee of the Board of Trustees of the Metropolitan Museum of Art formally accepted the AAMD 2008 Report of the AAMD Task Force on the Acquisition of Archaeological Materials and Ancient Art, and on November 12, 2008, the Board of Trustees adopted a revised Collections Management Policy incorporating those guidelines; accessed May 9, 2011, http://www.metmuseum.org/press_room/full_release.asp?prid={85EDA1CD-A74C-447A-9D2A-1494592D9256}. Some museums have created checklists for provenance research. See F. Goldstein, “Provenance Checklist and Questionnaire for Acquisitions,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Issues in Museum Administration (Philadelphia: ALI-ABA, 2009).

140. 140. Accessed May 30, 2011, http://www.aamd.org/newsroom/documents/2008ReportAndRelease.pdf

141. Sotheby’s held two successful antiquities auctions in 2007. The objects that sold well and for high prices were well known and documented to have been outside of the country of origin for a long time. T. Kline, “Art Market,” in S. Hutt, ed., Yearbook of Cultural Property Law 2008 (Walnut Creek, Calif.: Left Coast Press, 2008), 107.

142. See C. Coggins, “A Proposal for Museum Acquisition Policies in the Future,” 7 Int’l J. of Cult. Prop. 434–437 (1998).

143. I. DeAngelis, “An Interview with Italian Prosecutor Paolo Ferri in Rome, Italy, March 2007,” in S. Hutt, ed., Yearbook of Cultural Property Law 2008 (Walnut Creek, Calif.: Left Coast Press, 2008), 11–31.

144. M. Granovsky, “A Permanent Resolution Mechanism of Cultural Property Disputes,” 8 Pepp. Disp. Resol. L.J. 25 (2007). Disputes may be between individuals, between individuals and governments, between governments or indigenous populations, and between museums and auction houses or other institutions both domestically and on international levels. See B. Hoffman, ed., “Creating Value: Considering Arbitration or Mediation to Resolve Art or Cultural Property Disputes,” Art and Cultural Heritage: Law Policy and Practice (Cambridge: Cambridge U. Press, 2006) 463–64. The difficulty in using such alternate means of dispute resolution is getting the consent of the parties. See this chapter’s footnote 187 which discusses UNESCO’s establishment of an international committee in November 1979, called the Inter-governmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation, for this purpose.

145. Hoffman, “Creating Value,” 464.

146. Urice, “Between Rocks and Hard Places,” 161.

147. Ibid., 124.

148. F. Goldstein, “An Introduction: Cultural Property and Provenance: What’s New about What’s Old,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Issues in Museum Administration, (Philadelphia: ALI-ABA, 2009).

149. L. Nicholas, The Rape of Europa: The Fate of Europe’s Art Treasures in the Third Reich and the Second World War (New York: Alfred A. Knopf, Inc., 1994) (this book was made into an award-winning documentary and released in 2007); H. Feliciano, The Lost Museum: The Nazi Conspiracy to Steal the World’s Greatest Works of Art (New York, Basic Books, 1997); P. Harlerode and B. Pittaway, The Lost Museum: World War II and the Looting of Europe’s Treasurehouses (New York, Welcome Rain Publishers, 1999); E. Simpson, ed., The Spoils of War: World War II and Its Aftermath—The Loss, Reappearance, and Recovery of Cultural Property (New York, Harry N. Abrams, 1997); S. Urice, “World War II and the Movement of Cultural Property: An Introduction and Brief Bibliography for the Museum Administrator,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1998); E. Johnston, “Cultural Property and World War II: Implications for American Museums—Practical Considerations for the Museum Administrator,” in American Law Institute–American Bar Association (ALI-ABA), Course of Study Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1998).

150. K. Akinsha and G. Kozlov, Beautiful Loot: The Soviet Plunder of Europe’s Art Treasures (New York: Random House, 1995). It was in the late 1980s with the fall of the Soviet Union and the opening of Soviet records that the authors, two Russian researchers, discovered the records of this booty and published their findings. Their research shows that many of the Impressionist paintings taken by the Nazis from France and other occupied countries are now in the Hermitage Museum.

151. More looting followed after the arrival of the victorious Allied troops. Works were looted and taken back as souvenirs. By 1999, out of the dozen cases involving Nazi-era objects, one-third involved objects stolen by American servicemen. S. Weil, “The American Legal Response to the Problem of Holocaust Art,” 4 Art Antiquity and Law 285, 289 (4, Dec. 1999); Institute of Art and Law Annual Lecture, National Gallery, London (Oct. 4, 1999). One of the most notorious thefts by a U.S. soldier in Europe during World War II involved the Quedlinburg Treasures, a group of medieval objects owned by a church and hidden in a German mineshaft for safekeeping. Joe Meador, a young American lieutenant, grabbed the treasures, brought them back to Texas, and kept his loot a secret for thirty-five years. After his death, his family made inquiries as to the value of the collection, which ultimately led to their discovery and subsequent return. T. Kline, “Legal Issues Relating to the Recovery of the Quedlinburg Treasures,” in Simpson, The Spoils of War, 156; for an account of the discovery; see also, W. Honan, Treasure Hunt: A New York Times Reporter Tracks the Quedlinburg Hoard (New York: Fromm International, 1997).

152. Inter-Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation or Control, Jan. 5, 1943, reprinted in Simpson, The Spoils of War, 287.

153. The so-called “Monuments Men,” officers of the Monuments, Fine Arts, and Archives Section of the Office of Military Government, United States, were charged with the cooperative Allied project of collecting and restituting objects to their countries of origin in the immediate postwar period. Some of these Monuments Men had been distinguished museum professionals in private life, and their heroic efforts are chronicled in Simpson, The Spoils of War, 122–41.

154. The lack of awareness about Nazi-era provenance problems is illustrated by one of the most publicized cases in the late 1990s, Goodman v. Searle, No. 96-C6459 (N.D. Ill., 1996). This case involved a Degas pastel, Landscape with Smokestacks, on loan to the Art Institute of Chicago by a wealthy Chicago collector. The claimants were grandsons of a Dutch Jewish couple who died in Nazi concentration camps. The Chicago collector himself had conducted no title inquiry at the time of his purchase, instead relying on curators of the Art Institute of Chicago. These curators later testified at depositions they had not heard that the Nazis engaged in art looting. The collector’s principal defense was that the painting had been both exhibited and published before he acquired it and should have been found sooner by the heirs. The case was settled. See this chapter’s footnote 164.

155. For example, the Matisse painting restituted to heirs of Holocaust victims by the Seattle Art Museum was originally a bequest from donors who had no knowledge of the work’s suspect provenance. The claim began when a family member of the donors recognized the work from an illustration in H. Feliciano’s 1997 publication The Lost Museum: The Nazi Conspiracy to Steal the World’s Greatest Works of Art as the same work that had been bequeathed by relatives to the museum. The work at issue, Odalisque with Red Pants (1928), had been purchased by the donors in a New York gallery in 1954. During the pending litigation, the Seattle Art Museum voluntarily returned the painting in 1999 to the heirs of Paul Rosenberg, since the museum’s independent investigation verified Mr. Rosenberg was the dealer legally holding the painting when it had been illegally confiscated. The evidence uncovered indicated that the work was one of the paintings that the Nazis stole from this prominent Jewish art dealer in Paris and never returned. The lawsuit continued against the commercial gallery for failing to disclose the painting’s provenance at the time of the purchase, and that case was ultimately settled. See AAMD Task Force Press Release, “SAM to Return Matisse Odalisque to Rosenbergs,” June 14, 1999.

156. L. Nicholas, The Rape of Europa: The Fate of Europe’s Art Treasures in the Third Reich and the Second World War (New York: Alfred A. Knopf, Inc., 1994); the book was made into an award-winning documentary and released in 2007.

157. H. Weschler, “Introduction,” in AAM Professional Practice Series, Museum Policy and Procedures for Nazi-Era Issues (Washington D.C.: American Association of Museums, 2001), xiv.

158. The Washington Conference on Holocaust-Era Assets issued the Washington Conference Principles on Nazi-Confiscated Art on December 3, 1998, a statement adopted by the conference participants. Provisions include the following: art that had been confiscated by the Nazis and not subsequently restituted should be identified; relevant records and archives should be open and accessible to researchers; resources and personnel should be made available to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently restituted; consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era; every effort should be made to publicize art that is found and to locate its prewar owners or their heirs; efforts should be made to establish a central registry of such information; prewar owners and their heirs should be encouraged to come forward and make known their claims to art that was confiscated by the Nazis and not subsequently restituted; steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case; nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues; accessed Mar. 17, 2011, http://www.state.gov/www/regions/eur/wash_conf_material.html.

159. In December 2000, the Presidential Advisory Commission on Holocaust Assets issued its final report, Plunder and Restitution: The U.S. and Holocaust Victims Assets—Findings and Recommendations. The report found that museums were making progress in identifying Nazi-era provenance problems and further encouraged museums to make them public, starting with European Paintings and Judaica; accessed Mar. 17, 2011, http://www.pcha.gov/PlunderRestitution.html/html/Home_Contents.html.

160. Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933–1945), June 4, 1998, accessed Mar. 17, 2011, http://www.aamd.org/papers/guideln.php.

161. AAM Guidelines Concerning the Unlawful Appropriation of Objects during the Nazi Era, Approved Nov. 1999, Amended Apr. 2001, AAM Board of Directors, accessed Mar. 17, 2011, http://www.aam-us.org/museumresources/ethics/nazi_guidelines.cfm. The AAM also published a pamphlet in the AAM Professional Practice Series titled Museum Policy and Procedures for Nazi-Era Issues (Washington D.C.: American Association of Museums, 2001) that includes sample museum policies and forms dealing with claims, including sample label texts for works with Nazi-era provenance.

162. Perhaps the most notorious Nazi-era case in litigation in U.S. courts involved works on loan to the Museum of Modern Art (MoMA) in New York in the late fall of 1997. The works at issue by Egon Schiele were a part of a “canned” exhibition of over 150 works borrowed from a foundation established by the Austrian government. The Manhattan district attorney stopped the return of two disputed paintings after the museum stated that it had contractual obligations to return the works to the lender. The legal proceedings dragged on for over a decade. MoMA had not obtained federal protection for the works against seizure (see discussion on immunity from seizure in Chapter VIII, “International Loans,” Section B, “Immunity from Seizure”), but rather relied on New York State law that was later held not to apply. MoMA bore significant burdens for costly litigation than spanned close to twelve years. The case brought to the attention of U.S. museums the importance of examining provenance of works borrowed for exhibition. The case ended in 2009 when the ownership of the last remaining work, The Portrait of Wally, was determined. U.S. v. Portrait of Wally, A Painting by Egon Schiele, 663 F.Supp.2d 232 (S.D.N.Y. Sept. 30, 2009), dismissed all of the Austrian foundation’s challenges to the seizure, leaving for jury trial a single issue—whether the Austrian foundation could prove that its founder, Rudolf Leopold, did not know that the painting was stolen when the foundation imported it into the United States for the exhibition in 1997). Immediately before the trial date, a settlement was announced. The Portrait of Wally painting will belong to the Leopold Foundation upon payment of $19 million to the heirs of Lea Bondi Jaray, the claimant.

163. Nazi-Era Provenance Internet Portal resides on the Internet at http://www.nepip.org; accessed Mar. 17, 2011.

164. S. Clark, “World War II Restitution Cases,” in American Law Institute–American Bar Association (ALI-ABA), Course of Study Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, Mar. 2007), 325, lists twenty-two Holocaust-related claims resolved by U.S. Museums and six claims pending as of March 2007. Out of the twenty-two claims settled, seventeen claims did not involve any court litigation.

An example of a negotiated settlement by a museum involved a claim pursued on behalf of the heir by the Holocaust Claims Processing Office of the New York Banking Department created by Governor George Pataki on June 25, 1997. One of the chief goals of this office was to recover lost or looted art. Claimants were encouraged to apply for institutional assistance. The claims office assigns cases to highly trained staff who pre-pare and submit claims for restitution to holders of suspect property, including museums. No fees are charged to the claimant. In February 2000, the Holocaust Claims Processing Office was successful in arranging through protracted settlement negotiations for the return of a sixteenth-century painting by Lucas Cranach to the grandnieces of the original owner from the North Carolina Museum of Art that had acquired the work through a bequest in 1984. Press Release, Holocaust Claims Processing Office, February 3, 2000; accessed Sept. 20, 2011, www.claims.state.ny.us/pr000203.htm; see also CBSNEWS US, New York, Sept. 11, 2000, http://www.cbsnews.com/stories/2000/09/11/national/main232392.shtml.

The difficulty of litigating such claims is demonstrated by the Goodman v. Searle case discussed in this chapter’s footnote 154. The collector spent more than a million dollars developing his defense but lost a motion for summary judgment to have the case decided in his favor as a matter of law. Soon thereafter the dispute was settled by the parties in order to avoid a jury trial and further expense. Under the terms of the settlement, the Degas landscape went to the Art Institute of Chicago, half as a sale by the heirs and half as a donation by the collector, with the museum paying the heirs half the appraised value of the pastel. The attorney representing the heirs has stated that “the case, which could have been settled on these terms without any litigation, is frequently cited as a negative example of litigation running out of control, and also as a model for future balanced settlements.” T. Kline, “Resolving Stolen Art Theft Claims,” 66 Congress Monthly (No. 6, 1999). The futility of litigation for Holocaust claims is discussed in N. Palmer, Museums and the Holocaust (London: Institute of Art and Law, 2000), 49–70.

165. S. Weil, “The American Legal Response to the Problem of Holocaust Art,” 4 Art Antiquity and Law 285, 297 (No. 4, Dec. 1999); Institute of Art and Law Annual Lecture, National Gallery, London (Oct. 4, 1999).

166. In California, the state legislature passed a law in 2002 extending the statute of limitations on claims for Holocaust-related art found in museums and galleries, § 354.3 of the California Code of Civil Procedure. In 2009, the U.S. 9th Circuit Court of Appeals struck down this law, ruling that the looted-art law was an unconstitutional intrusion by the state on foreign policy matters that are strictly under the federal government’s jurisdiction. Von Saher v. Norton Simon Museum, 592 F.3d 954 (9th Cir. 2010). Petition for certiorari was filed with the U.S. Supreme Court on April 14, 2010 (No. 07-56691), and on October 4, 2010, the U.S. Supreme Court invited the U.S. solicitor general to file a brief expressing the views of the United States [Von Saher v. Norton Simon Museum of Art, 131 S. Ct. 379 (2010)]. In response, Bill AB2765 was passed in 2010 by the California Assembly and Senate and signed by the governor into law that extends from three to six years the statute of limitations for filing a lawsuit against a museum, gallery, or art dealer in order to recover stolen art or other items of “historical, interpretive, scientific [or] cultural importance” that were taken during the past one hundred years. It applies both to future lawsuits and to those already pending. Thus the new law is broader and applies to all art, not only works with Nazi-era provenance, and is codified at Cal Code Civ Proc sec. 338(c)(3). In other jurisdictions, the statutes of limitations for Holocaust claims follow the same duration rules as other thefts of personal property.

167. N. Yeidi et al., The AAM Guide to Provenance Research (Washington D.C.: American Association of Museums, 2001); N. Yeidi, “Behind the Lines: Lessons in Nazi-Era Provenance Research,” 79 Museum News 50–53, 56–59 (No. 6, Nov./Dec. 2000).

168. In the fall of 2006, the museum community, represented by the AAM, appeared again before Congress to report on progress made in addressing the issue of cultural property looted by the Nazis. It was noted that 150 museums had posted data on the AAM’s Nazi-Era Provenance Internet Portal. Others who testified described this participation as “spotty,” and members urged continued good-faith efforts. “House Holds Hearings on Museum and Nazi-Era Assets,” 32 AVISO (No. 9, Sept. 2006).

But recent actions by two museums have caused speculation about museums and Holocaust claims processing. In December 2007 two museums jointly filed a declaratory judgment suit asking the court to declare that their title was clear to a painting by Picasso, Boy Leading a Horse [Schoeps v. Andrew Lloyd Weber Foundation, 06V12934 (S.D.N.Y.)]. The issue was whether the work had been forcibly sold during the Nazi era. The museums, after extensive research, concluded that there was no evidence of a sale under duress and filed the suit to establish their rightful ownership. Similarly, the Detroit Museum of Art and the Toledo Museum of Art each filed successful declaratory judgment actions to protect their ownerships of a work by Van Gogh and one by Gauguin against the same claimant. The court dismissed the claimant’s counterclaims in both suits, holding that they were time barred. Detroit Institute of Art v. Ullin, 2007 U.S. Dist. LEXIS 28364 (E.D. Mich. Mar. 31, 2007); Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802 (N.D. Ohio 2006). The question raised is whether this more aggressive stance by museums in seeking court protection based on technical defenses will become a trend in Holocaust claims processing. T. Kline, “Practice Area Section: Art Market,” Cultural Property Yearbook 2008 (Walnut Creek, Calif.: Left Coast Press, 2008) 101, 112.

169. In 1998, a bill entitled Stolen Artwork Restitution Act of 1998, HR 4138 105th Congress (1998), was introduced by Representatives Chuck Schumer and Michael Lowry; the bill would have required a purchaser of artwork shipped in interstate or foreign commerce to complete “a documented, reasonable, multisource inquiry” as to provenance. The bill was intended to aid the Holocaust art restitution efforts, but presumably to avoid equal protection problems, the bill would have required such due diligence by purchasers of any artwork and urged dispute resolution by means other than litigation. The bill never made it into law. The bill also would have provided $5 million in grants to organizations that maintained databases through which stolen art could be identified and located.

As noted earlier in this chapter’s footnote 166, in California the state legislature passed a law in 2002 extending the statute of limitations on claims for Holocaust-related art found in museums and galleries, § 354.3 of the California Code of Civil Procedure. In a 2009 ruling, the U.S. 9th Circuit Court of Appeals struck down this law, ruling that the looted-art law was an unconstitutional intrusion by the state on foreign policy matters that are strictly under the federal government’s jurisdiction. Von Saher v. Norton Simon Museum, No. 07-56691, 2010 WL 114959 (9th Cir. Jan. 14, 2010).

Most recently, in New York, a law was passed to resolve unclaimed loans and undocumented property left in museums by allowing the museum to take title to covered work. See a discussion of such state laws in Chapter VII, “Unclaimed Loans.” However, by its terms the New York law cannot be used to take title to two types of property: (1) “Nazi-era” (1933–45) disputed works and (2) stolen property. This is the first so-called state unclaimed property law that specifically excludes Nazi-era works from coverage, thereby making it impossible for museums to clean title to unclaimed loans that may have Nazi-era provenance or indeed any history of theft in their chain of title. The problem is that loans left for decades unclaimed at museums are typically undocumented as to provenance, requiring the museum to do extensive research prior to utilizing the provisions of the law.

170. S. Clark, “World War II Restitution Cases,” in American Law Institute–American Bar Association (ALI-ABA), Course of Study Materials: Legal Problems of Museum Administration, (Philadelphia: ALI-ABA, Mar. 2007), 325.

171. Pub. L. 101–601, 25 U.S.C. §§ 3001–13. A precursor to NAGPRA was the American Indian Religious Freedom Act, Pub. L. 95–341 (1978), which reaffirmed American Indians’ First Amendment rights. The central section of the act reads as follows: “[I]t shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the traditional religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites.” Using this law as a guide and after consultation with Native Americans, the American Association of Museums promulgated the “AAM Policy Regarding the Repatriation of Native American Ceremonial Objects and Human Remains,” published in AVISO (Mar. 1988).

172. Refer back to this chapter’s Section D, “Circumstances That Can Affect the Quality of Title,” for a fuller explanation of the meaning of “burden of proof.”

173. Historically, the United States has treated Indian tribes as separate nations. In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 L.Ed. 2d 106, at 113 (1978), the Supreme Court stated that Indian tribes are “distinct independent political communities retaining their original natural rights in matters of local self-government.” Although no longer “possessed of the full attributes of sovereignty,” they remain “a separate people, with the power of regulating their internal and social relations.… They have power to make their own substantive law in internal matters … and to enforce that law in their own forums.”

174. R. Hill, “Indians and Museums: A Plea for Cooperation,” 4 Council of Museums Anthropology Newsletter 22, 23 (No. 2, 1979).

175. The semi-autonomous status of Indian tribes as described in this chapter’s footnote 173 makes the questions raised in this and the preceding two paragraphs all the more interesting. See “Museum Rights v. Indian Rights: Guidelines for Assessing Competing Legal Interests in Native Cultural Resources,” 14 N.Y.U. Rev. of Law and Social Change (No. 2, 1986).

176. R. Strickland, “Beyond the Legal Dimension: Native American Ceremonial Objects and Human Remains,” in American Law Institute-American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1988).

177. A federal agency is responsible for ensuring that the requirements of NAGPRA are met for all collections removed from lands under its control even though the collections may now be in the possession of another federal agency or nonfederal repository.

178. Federal funds that are provided for any purpose and that are received by a larger entity of which the museum is a part are considered federal funds. The Smithsonian Institution is expressly exempt from coverage under NAGPRA. This is because Smithsonian activity regarding Native American human remains and cultural objects was addressed in an earlier piece of federal legislation, the National Museum of the American Indian Act (Pub. L. 101–185), enacted in 1989 and later amended by Pub. L. 104–278 in 1996

179. Each of these terms is defined in the statutes and is further amplified in the regulatory process. See, for example, the January 1, 1993, memorandum of the director of the National Park Service titled “Summaries, Inventories, and Notification under the Native American Graves Protection and Repatriation Act of 1990.”

180. Each of these terms is defined in the statute and is further amplified in the regulatory process. See, for example, the March 1995 memorandum from the director of the National Park Service titled “Examples of Native American Graves Protection and Repatriation Act (NAGPRA) Inventory.” The National Park Service’s web page currently entitled “National NAGPRA” provides a wealth of information on current and past implementation of the statute; accessed May 28, 2011, http://www.nps.gov/nagpra/.

181. The charter of the Native American Graves Protection and Repatriation Review Committee was signed August 2, 1991, by Manuel Lujan Jr., secretary of the interior.

182. See C. Pala, “Hawaii’s Bishop Museum Grapples with NAGPRA,” Museum (Mar./Apr. 2008).

183. For a detailed description of how NAGPRA affects management of museum collections, see T. Mckeown et al., “Complying with NAGPRA,” in R. Buck and J. Gilmore, eds., MRM5: Museum Registration Methods, 5th ed. (Washington, D.C.: AAM Press, American Association of Museums, 2010), Section 7H.

184. Bonnichsen v. United States, 367 F.3d 864 (9th Cir. 2004).

185. From IFAR, accessed Aug. 16, 2010, http://www.ifar.org/case_summary.php?docid=1179587769.

186. From Burke Museum, accessed Aug. 16, 2010, http://www.washington.edu/burkemuseum/kman/.

187. See, for example, the work of UNESCO’s Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation, formed in 1995, that has had limited success. For the current activities of this committee, see the UNESCO website at http://portal.unesco.org/culture/en, accessed May 9, 2011.

188. Animal and plant parts, for example, can be used in native handicrafts, jewelry, wearing apparel, and decorative objects, as well as for objects of ethnographic and/or religious importance.

189. This list mentions only the statutes more likely to affect museum activity. Not mentioned, for example, are the U.S. Department of Agriculture and the Public Health Service restrictions on the importation of certain plants and animals, or parts thereof, for health and safety reasons. Information on such regulations can be obtained from the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (accessed May 30, 2011, http://www.aphis.usda.gov/) and from the U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention (accessed May 30, 2011, http://www.cdc.gov/). No attempt is made to cover state or municipal regulation of the movement of wildlife. On the municipal level, regulations usually address live animals that may be dangerous, hazardous to health, or noisy. In addition to the statutes mentioned, zoological parks and aquariums can be subject to other federal laws and regulations that primarily address the care and use of live species. A good source of information on these laws and regulations is the Association of Zoos and Aquariums (accessed May 30, 2011, http://www.aza.org/). See also D. Kleiman et al., eds., Wild Mammals in Captivity (Chicago: U. of Chicago Press, 1994). On the international scene there is one development that should be monitored by those interested in collecting plants and wildlife. It is the growing worldwide implementation of the Convention on Biological Diversity (Biodiversity Convention), which serves as a vehicle for creating a broad international commitment to preserving the world’s biological diversity. The convention recognized for the first time in international law that the conservation of biological diversity is “a common concern of humankind” and is an integral part of the development process. Initiated by the United Nations Environment Programme (UNEP), the Biodiversity Convention, signed by 168 countries (excluding the United States), became effective in 1993 and protects ecosystems, species, and genetic resources. The convention seeks to balance the interests of countries of origin, indigenous cultures, scholars, and entrepreneurs. Nations who are parties to the convention commit to implementing its terms within their borders, including these actions: regulating access to genetic resources and traditional knowledge about these resources; requiring “prior informed consent” of the party providing resources; sharing, in a fair and equitable way, the results of research and development; and sharing the benefits arising from the commercial and other utilization of genetic resources with the party providing such resources. For museums, collecting biological specimens abroad has become subject to increased regulatory control that has been compared to the complex patrimony issues faced by those collecting archaeological materials and antiquities. But, reportedly, the increased regulations in the biological world have led to “a much greater sense of community between scientists and host countries.” S. Breitkopf, “Indiana Jones Is Dead: The Field Museum in a Smaller World,” Museum (Jan./Feb. 2008). See also the Convention on Biological Diversity website at http://www.cbd.int/history/, accessed May 17, 2011.

190. See the prior sections concerning the international movement of cultural property; these sections describe approaches taken by other countries. See also L. Prott and P. O’Keefe, Handbook of National Regulations Concerning the Export of Cultural Property (Paris: UNESCO, 1988).

191. Note also the Native American Graves Protection and Repatriation Act discussed in this chapter’s Section D.6.i. In addition, some U.S. government agencies in their enabling legislation have language that empowers them to exert control over more than just archaeological material located on land under their control.

192. Other federal statutes, such as the Reservoir Salvage Act, as amended, encourage “in federal undertakings” the preservation of historic and cultural properties, and, indirectly, these may affect collecting activity. State statutes, which affect resources located on state property, should also be reviewed on this subject. The National Park Service publishes useful booklets such as Federal Historic Preservation Laws, U.S. Dept. of Interior, National Park Service, Cultural Resources Program, Washington, D.C. (1993), and, in conjunction with the National Trust for Historic Preservation, A Survey of State Statutes Protecting Archeological Resources, by C. Carnett (1995).

193. 16 U.S.C. §§ 432, et seq.

194. Earlier statutes offered protection to certain national historic properties on a case-by-case basis. See F. McManamon, “The Antiquities Act: Setting Basic Preservation Policies,” 19 CRM (Cultural Resource Management, National Park Service) (No. 7, 1996). The act has also been interpreted to protect the salvage of certain historic shipwrecks. On this issue, see C. Zander, “The Antiquities Act: Regulating Salvage of Historic Shipwrecks,” 19 CRM (No. 7, 1996).

195. 16 U.S.C. § 433. Other sections of the statute permit the president to designate as national monuments “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” located on federal property.

196. 499 F.2d 113 (9th Cir. 1974), reversing, 368 F. Supp. 856 (D. Ariz. 1973).

197. See R. Cooper, “Constitutional Law: Preserving Native American Cultural and Archeological Artifacts,” 4 Am. Indian L. Rev. 99 (No. 1, 1976). But see United States v. Smyer, 596 F.2d 939 (10th Cir. 1979), cert. denied, 444 U.S. 843, a later case that held that the Antiquities Act was not unconstitutionally vague when applied to the facts in that case. See also United States v. Jones, 607 F.2d 269 (9th Cir. 1979), cert. denied, 444 U.S. 1085, where the government chose to sue not under the Antiquities Act for alleged improper removal of archaeological material but rather under more general theft and malicious mischief statutes, 18 U.S.C. §§ 641 and 1361.

198. Pub. L. 96–95, 93 Stat. 721, 16 U.S.C. §§ 470(aa–mm). Department of Interior regulations implementing the act are cited as 43 C.F.R. pt. 7.

199. The act also stresses increased communication and exchange of information among government authorities, the professional archaeological community, Native Americans, collectors, and the general public in order to further the goal of protecting and conserving domestic archaeological resources: §§ 10, 11, 13 of Pub. L. 96–95, 93 Stat. 721 (1979).

200. § 6(a–c) of Pub. L. 96–95, 93 Stat. 721 (1979).

201. This phrase is used instead of the Antiquities Act terminology of “ruin” or “monument” and “object of antiquity.”

202. § 3(1) of Pub. L. 96–95, 93 Stat. 721 (1979). See § 7.3 of 43 C.F.R. for Interior Department regulations that clarify this definition. In 1990, the discovery in South Dakota of a well-preserved and complete tyrannosaur fossil, subsequently called “Sue™,” eventually led to a lawsuit that raised the issue of whether paleontological material was covered by preservation statutes. It also caused the introduction of a bill in Congress to protect paleontological resources (S. 3107, the Vertebrate Paleontological Resources Protection Act, introduced into Congress in 1992). The bill failed to pass. See P. Duffy and L. Lofgren, “Jurassic Farce: A Critical Analysis of the Government’s Seizure of Sue™,” 39 S.D. L. Rev. 478 (No. 3, 1994); and L. Grant and M. Malaro, “Disputed Bones: The Case of a Dinosaur Named Sue™,” in American Law Institute-American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1993). In 1996, H.R. 2943, the Fossil Preservation Act of 1996, was introduced into Congress by Rep. Tim Johnson of South Dakota. Rather than limit the removal of paleobiological specimens, this proposal sought to set standards regarding the treatment of specimens once they are removed. The proposal never became law. Meanwhile, Sue™ was not resting quietly. The legal battle ultimately returned her to the owner of the land from which she had been excavated. In late 1996, she was placed on the auction block and on October 4, 1997, was sold to the Field Museum for $8.4 million. See “Chicago Museum Gets Bones of T. Rex,” Baltimore Sun, Oct. 5, 1997.

203. In a civil matter it is not necessary, as a rule, to prove that one had knowledge of the law that he or she is charged with violating.

204. The act specifically notes that these penalty provisions do not apply to “any person with respect to the removal of arrowheads located on the surface of the ground”: § 6(g) of Pub. L. 96–95, 93 Stat. 721 (1979). See, however, 43 C.F.R. pt. 7 and 49 Fed. Reg. 1018 (Jan. 6, 1984) for an explanation of how arrowheads can fall within the definition of “archaeological resource.”

205. See the definition of “person” in § 3(6) and § 4 of Pub. L. 96–95, 93 Stat. 721 (1979).

206. § 4(b) of Pub. L. 96–95, 93 Stat. 721 (1979).

207. § 6(b) of Pub. L. 96–95, 93 Stat. 721 (1979); § 6(f), however, states that people who were in lawful possession of archaeological resources before the date of the enactment of Pub. L. 96–95 (Oct. 31, 1979) are not deemed in violation of § 6(b)(1). The legislative history of the act explains that this provision is aimed at protecting individuals and institutions possessing artifacts or collections of archaeological resources that were obtained legally. See 49 Fed. Reg.1024 (Jan. 6, 1984) for additional comments on this subject.

208. § 6(c) of Pub. L. 96–95, 93 Stat. 721 (1979). Several recent prosecutions surrounding the importation of ancient materials from foreign nations have relied for statutory support on the Archaeological Resources Protection Act of 1979 (ARPA). These prosecutions have attempted to extend this statute, designed to protect archaeological resources on U.S. federal and Indian lands, to archaeological sites throughout the world. The recent warrants against four California museums to investigate their acquisition of allegedly illegal foreign antiquities discussed in this chapter’s Section D.6.e, “Criminal Investigations and Prosecutions,” rely on ARPA, noting that under 16 U.S.C. § 470ee(c) “[n]o person may sell, purchase, exchange, transport, receive, or offer to sell, purchase, or exchange, in interstate or foreign commerce, any archaeological resource excavated, removed, sold, purchased, exchanged, transported or received in violation of any provision, rule, regulation, ordinance, or permit in effect under State law or local law.” The affidavit supporting the warrant then looks to California Penal Code § 497, which makes it a violation of state law to receive property stolen in another country and to bring it into California knowing the property was stolen. To support the allegation that the materials were “stolen,” the affidavit then looks to Thailand’s patrimony law, which holds that antiques that are buried, concealed, or abandoned are Thai government property. This use of ARPA has been criticized as a clear case of “bootstrapping”—using a foreign patrimony law to trigger a state theft law to find a federal ARPA violation. Critics also argue that the plain language of ARPA and its legislative history show that ARPA’s purpose is the protection of archaeological resources on U.S. public and Indian lands, not those from foreign lands. If the federal government eventually brings charges in connection with these California investigations, it will be the first time that a federal court will have the opportunity to assess the application of ARPA to foreign antiquities. See K. Vitale, “Note: The War on Antiquities: United States Law and Foreign Cultural Property,” 84 Notre Dame L. Rev. 1835 (No. 4, Apr. 2009). The question remains as to why use ARPA at all for stolen foreign cultural property as other federal laws are available [see the discussion of the use of the National Stolen Property Act (NSPA) in this chapter’s Section D.6, “Objects Improperly Removed from Their Countries of Origin”]. The authors opine that whereas NSPA has a minimum requirement of $5,000 for the value of what has been stolen, ARPA has no such minimum. Also there is a difference in how much knowledge of wrongdoing is required by each law. Ibid. The future of this expanded use of ARPA to foreign cultural property is yet to be decided.

209. 16 U.S.C. §§ 470 et seq. (Pub. L. 89–665 of Oct. 15, 1966). The National Historic Preservation Act (NHPA) has been amended several times, most recently in the National Historic Preservation Act Amendments of 1992 (Pub. L. 102–575, Oct. 30, 1992).

210. For a comprehensive discussion of early federal historic preservation legislation, see J. Fowler, “Federal Historic Preservation Law,” 12 Wake Forest L. Rev. 31 (1976).

211. 16 U.S.C. § 470(d).

212. The 1979 amendments to the NHPA afford statutory recognition also to the National Historic Landmark Program, which evolved from the Historic Sites Act of 1935. The National Historic Landmark Program identifies properties that possess exceptional value in commemorating or illustrating the history of the United States.

213. Subsequent amendments to the original act now permit local governments and Indian tribes to assume state historical preservation officer functions. See, for instance, D. Suagee and K. Funk, “Reconfiguring the Cultural Mission: Tribal Historic Preservation Programs,” 13 CRM 21 (No. 4, 1990).

214. 16 U.S.C. § 470(f), as amended.

215. “Procedures for the Protection of Historic and Cultural Properties,” 36 C.F.R. § 800.2(c). Congress is currently considering a bill to extend copyright protection to designer clothing. See Senate Bill 3728, Innovative Design Protection and Piracy Prevention Act, introduced August 5, 2010.

216. For more information, see S. Henry, Protecting Archeological Sites on Private Lands (Washington, D.C.: National Park Service, 1993); and S. Hutt et al., Archeological Resource Protection (Washington, D.C.: National Trust for Historic Preservation, Preservation Press, 1992).

217. Since the passage of the Native American Graves Protection and Repatriation Act of 1990, Native Americans can claim control over culturally affiliated human remains and cultural material found on federal or federally controlled property. See this chapter’s Section D.6.i, “Native American Graves Protection and Repatriation Act.”

218. GAO/RCED-88–3, issued Dec. 1987.

219. 36 C.F.R. pt. 79, “Curation of Federally-Owned and Administered Archeological Collections,” 55 Fed. Reg. 37670 (Sept. 12, 1990).

220. On the issue of what should be saved, see L. Sullivan, “Managing Archeological Resources from the Museum Perspective,” Technical Brief No. 13 (Apr. 1992), National Park Service, ISSN 1057-1574, accessed May 31,2011, http://www.cr.nps.gov/archeology/pubs/techbr/tch13a.htm. See also National Park Service online course, S. Childs and E. Corcoran, “Managing Archeological Collections: Technical Assistance” (Washington, D.C.: Archeology and Ethnography Program, National Park Service, 2000), accessed May 31, 2011, www.cr.nps.gov/archeology/collections/.

221. The curation standards, published in 1990, for federal archaeological material do not contain any provisions concerning deaccessioning. However, a proposed rule on deaccessioning was published in the Federal Register on the same day (Sept. 12, 1990) that the curation standards were promulgated. The proposed rule asked for public comment. Little comment was forthcoming, and the proposal still languishes as of 2011. For an article on this subject, see R. Sonderman, “Primal Fear: Deaccessioning Collections,” 1 Common Ground (No. 2, Summer 1996). The National Park Service does address deaccessioning in the NPS Museum Handbook, Part II: Museum Records, Chapter 6, accessed May 31, 2011, http://www.cr.nps.gov/museum/publications/MHII/mushbkII.html.

222. See National Park Service, Museum Handbook, Part I: Museum Collections (revised 1990), and Museum Handbook, Part II:, Museum Records (revised 1992). These documents are available online at the National Park Service website, accessed May 10, 2011, www.cr.nps.gov/museum/publications/handbook.html.

223. 1 Dissertations 36 (1864).

224. 122 Ky. 65, 83, 90 S.W. 1066 (1906).

225. In In re Estate of Rood, 41 Mich. App. 405, 200 N.W.2d 728 (1972), the testator established a fund so that colleges could teach certain political theories. When the validity of the trust purpose was questioned, the court stated that “[n]o legitimate institution of higher learning could permit this kind of control of the classroom from the grave” (736). See also Chapin v. Benwood Foundation, Inc., 402 A.2d 1205, aff’d, 415 A.2d 1068 (Del. 1980). In Chapin, at issue was whether trustees of a charitable corporation could bind themselves in advance regarding the filling of vacancies on their board. The court said the following: “To commit themselves in advance, perhaps years in advance, to fill a particular board vacancy with a certain named person, regardless of the circumstances that may exist at the time that the vacancy occurs, is not the type of agreement that this Court should enforce, particularly when it is an agreement made between persons who … owe a duty to those intended to be benefitted by the charitable corporation they are charged with managing.” In March 1995, Yale University returned to a donor a gift of $20 million. The gift was to have endowed faculty positions for a new program. When the donor added a new condition in which the donor retained the authority to approve the appointment of faculty, the gift was returned. In a public letter of explanation, the president of the university said the following: “The University must continue to use its own judgment of excellence in scholarship and teaching as the sole basis for faculty appointments. We simply could not delegate authority over faculty appointments to a donor, even one as generous as … [this donor].” Richard C. Levin, president of Yale University, letter of Mar. 23, 1995. See also M. Zaretsky, “$20 Million Gift to Yale Returned,” New Haven Register, Mar. 15, 1995. Some commentators appear to lose sight of the educational function of a museum. See, for example, P. Gerstenblith, “The Fiduciary Duties of Museum Trustees,” 8 Art and the Law 175 (No. 2, 1983).

226. One of the first considerations in deaccessioning is whether any restriction prohibits removal. Record-keeping practices should be such that all relevant information on restrictions is maintained in the master accession file.

227. For example, the museum might agree to a return if the object is sold within twenty years of its acceptance. The twenty years assures the donor that the acceptance is not frivolous, and it is a manageable period of time if a return must be made. See also discussion of the “rule against perpetuities” in Chapter V, “The Disposal of Objects: Deaccessioning,” Section B.2.e, “Notification to Donor of Deaccession.”

228. Sometimes a restriction harms the gift itself. In 1963, Mark Rothko gave to Harvard University a series of huge murals he had created for a meeting room in a newly constructed university building. The gift stipulated that the canvases should always be shown as an ensemble and in a given configuration. Also, once installed, they were not to be moved without the approval of the artist or his representative. After a few years, the murals appeared to be fading, and despite measures to limit the light in the room, the deterioration continued at an alarming rate. Tests showed that Rothko had used unstable paint. By 1970, Rothko had died, and who could speak for him regarding the restriction was unclear. The university took it upon itself to remove the works, for their own safety, and stored them in darkness in a basement. Eventually, the Rothko Foundation approved the removal. It was finally determined that the paint used on the murals was so unstable that the huge works must hang indefinitely in darkness in a storage room. According to conservators, modern works are frequently less stable because of the variety of products used. See J. Bethell, “Damaged Goods,” Harvard Magazine 25 (July–Aug. 1988). A restriction might also harm the donor monetarily. The restriction might be such that the IRS could limit the amount of the charitable deduction to be claimed. See “IRS Technical Advice Memorandum,” Tech. Adv. Mem. 94-43-004 (Jan. 7, 1994).

229. Such gifts are not without peril, as illustrated by the de Groot affair at the Metropolitan Museum of Art. De Groot left a sizable collection of art to the Metropolitan with the “wish,” stated in her will, that the Metropolitan give to other museums those works it did not want. Some years later, thirty-two of the paintings were sold by the Metropolitan. Unfavorable publicity and an investigation by the attorney general of New York followed. The museum’s position, affirmed by legal counsel, was that de Groot’s bequest was absolute and that her request not to sell was not binding but was merely precatory. After having considered the request and also the benefit to the museum of acquiring finer works that would bear the de Groot name, the trustees of the museum chose to sell. Many questioned not the legality but the wisdom of the decision. The attorney general took no formal action. Shortly thereafter, the trustees of the museum published a deaccession policy that requires considerable internal review of each deaccession proposal. One self-imposed restriction states that no work of art valued at more than $10,000 and held for less than twenty-five years will be disposed of if the donor or the donor’s heirs object. Metropolitan Museum of Art, Procedures for Deaccessioning and Disposal of Works of Art (June 20, 1973), reprinted in P. Wald, “Museum Sales and Trades Provisions and Safeguards,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1974).

230. Relief from a legally binding restriction can usually be obtained only with court approval. (See later sections of this chapter.) Such a process can be time consuming and costly. A decision concerning precatory language may be made internally. The Metropolitan Museum of Art adopted a new Collection Management Policy that revises this voluntary rule adopted in 1973. See footnote 41 in Chapter V, “The Disposal of Objects: Deaccessioning.”

231. See this chapter’s Section A, “The Meaning of the Word ‘Accession,’ ” as it relates to the merits of discussing in advance with owners the wording of proposed bequests.

232. Executors, or administrators, are parties appointed by the courts to see that estates are properly administered. In In re Estate of Charles Clegg, an issue was whether the executor (as distinct from the testator) can impose limitations on a bequest. #P-18202, 1st Judicial District Ct. of Nevada (July 18, 1986). See B. Wolff, “Processing Bequests: From Notice of Probate to Receipt and Beyond,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1996), Section III, which deals with the role of the executor.

233. Another possible alternative is for the museum to ask the estate to seek court instructions concerning the interpretation of the gift language, as was done in the case of Morgan Guaranty Trust Co. of New York v. The President and Fellows of Harvard College (see this chapter’s footnote 239). In this procedure, the issue is clarified before the museum makes its decision as to whether the gift will be accepted. For an extensive discussion of restricted gifts, see M. Malaro, “Restricted Gifts and Museum Responsibilities,” Museum Governance: Mission, Ethics, Policy (Washington, D.C.: Smithsonian Institution Press, 1994). See also J. Sare, “Art for Whose Sake? An Analysis of Restricted Gifts to Museums,” 13 Columbia V.L.A.J.L. and Arts 377 (1989); S. Cott, “Mega Gifts to Museums,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1995); I. DeAngelis, “A Practical Guide to Dealing with Restricted Bequests,” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1996).

234. A firm practice of requiring formal deeds of gift is highly desirable. See this chapter’s Section F, “Acquisition Procedures.”

235. Abrams v. Maryland Historical Society, Equity No. A-58791 A-513/1979 (Md. Cir. Ct. for Baltimore City, June 20, 1979). See also Trustees of Dartmouth College v. Quincy, 357 Mass. 521, 533–34, 258 N.E.2d 745 (1970).

236. In Taussig v. Historic Annapolis, Case #6-93-4451 (Cir. Ct. for Anne Arundel County, Feb. 15, 1995), another donor sued a historical society, questioning the society’s right to deaccession objects given earlier by the donor. The donor had signed a deed of gift, and there was no express restriction on disposal in the deed of gift. The society prevailed.

237. Maryland Institute College of Art v. The Baltimore Museum of Art and the Walters Art Gallery, Civil No. 95030001/CL191657 (Cir. Ct. for Baltimore City, Sept. 28, 1995). The quotations that follow are from the cited case.

238. An unreported opinion of the Court of Chancery of the State of Delaware, New Castle County, Civil Action No. 6601 (Oct. 28, 1981). The quotations that follow are from the cited case.

239. Citing Restatement (Second) of Trusts § 175 and Scott on Trusts § 175 (3d ed.).

240. No. E 1855 (Mass. Probate Ct. for Worcester, Dec. 20, 1983). The quotations that follow are from the cited case.

241. 83 N.Y.S. 2d 142 (1948), aff’d, 86 N.Y.S. 2d 464 (1949).

242. Ibid., 144.

243. 357 Mass. 521, 258 N.E. 2d 745 (1970).

244. Ibid., 533–34. Other cases dealing with interpretation of restrictions are Attorney General v. President and Fellows of Harvard College, 350 Mass. 125, 213 N.E. 2d 840 (1966); Harvard College v. Attorney General, 228 Mass. 396, 117 N.E. 903 (1917); Wilstach Estate, 1 Pa. D&C 2d 197 (1954); Parkinson v. Murdock, 183 Kan. 706, 332 P. 2d 273 (1958). In Ranken-Jordan Home v. Drury College, 449 S.W. 2d 161 (Mo. 1970), the court treated as an interpretation what other courts might consider a deviation (see this chapter’s Section E.1.d, “Relief from Restrictions”). Peculiarities of Missouri law may explain this. See also Taylor v. Baldwin, 247 S.W. 2d 741 (Mo. 1952).

245. J. Hechinger, “Ruling May Cost Princeton Millions If Heirs Win Case,” Wall Street Journal, Oct. 26, 2007.

246. R. Durkee, “Robertson vs. Princeton vs. Donor Intent,” Letters to the Editor, Chronicle of Philanthropy (Jan. 29, 2009).

247. See O’Hara v. Grand Lodge Independent Order of Good Templars, 213 Cal. 131, 2 P.2d 21 (1931), and Gordon v. Baltimore, 258 Md. 682, 267 A.2d 98 (1970), concerning the ability of a court to confirm cy pres–type action already taken by a charity. Regarding the question of whether a restricted gift designed to benefit a particular group falls under a state Uniform Management of Institutional Funds Act (and that act’s procedures for relief from restrictions), see Yale University v. Blumenthal, A.G., Conn. L. J., Mar. 16, 1993, 225 Conn. 32, 621 A.2d 1304 (1993).

248. For a detailed discussion of the doctrines of cy pres and deviation, see S. Urice, “Some Issues Raised by the Case(s) of the Barnes Foundation: Enforcing a Donor’s Restrictions, Cy pres, and Deviation (Or How Long Is Forever?),” in American Law Institute–American Bar Association (ALI-ABA), Course of Studies Materials: Legal Problems of Museum Administration (Philadelphia: ALI-ABA, 1993). Some courts refer to either doctrine as “approximation.” See, for example, Britton v. Killian, 27 Conn. Supp. 483, 245 A. 2d 289 (1968).

249. T. Blackwell, “The Charitable Corporation and the Charitable Trust,” 24 Wash. U. L.Q. 1 (1938).

250. A much-quoted treatise on the subject is A. Scott’s “Education and the Dead Hand,” 34 Harv. L. Rev. 1 (Nov. 1920). On the first page of the article, Scott explains why an organization should have a legal mechanism to review restricted gifts to charity:

If a testator chooses to leave his property to definite beneficiaries, he cannot control its disposition for more than a generation or two (i.e., the Rule Against Perpetuities). But a trust for charitable purposes may last forever. By the creation of such a trust, a specific property or the beneficial interest in specific property or in a shifting fund or mass may be rendered forever inalienable, may be forever “taken out of commerce,” may be devoted in perpetuity to the accomplishment of the purposes for which the trust was created. One who happens to acquire property during the short span of his lifetime may by giving it for charitable purposes control its disposition throughout the ages.

4. Special Tax Considerations