On Jan. 1, 2021, the Senate joined the House in an override of President Trump’s veto of the National Defense Authorization Act (NDAA).  The NDAA contained amendments introduced by Congresswomen Carolyn Maloney (D-NY) directed at a number of Anti-Money Laundering (AML) initiatives.  As a result of that amendment to the House version of the NDAA incorporated into the legislation that passed both Houses after a conference with the Senate, "person[s] engaged in the sale of antiquities" (however "antiquities" might be defined) now find themselves subject to the provisions of the Bank Secrecy Act (BSA) and its regulatory requirements to create and maintain an anti-money laundering program, prepare an annual independent audit, and file where appropriate “suspicious activity reports.”  Such AML programs typically cost thousands of dollars per year to implement  as well as the time and effort required to comply with such regulations.  The costs to small and micro business are substantial.  Furthermore, it is impossible to “fly under the radar screen” of such requirements; such regulations are enforced by the banks which will close accounts which do not comply. 

The exact scope of these obligations for antiquities dealers will be determined in  yet to be promulgated regulations to be prepared by FINCEN (the Financial Crimes Enforcement Network), a Treasury entity.  Those proposed regulations will be subject to “notice and comment” rule making.  Notice and comment rule making should require FINCEN  to respond to concerns raised in public comments before the regulations are finalized.  That process, which will probably not happen until later in the year, will be an opportunity to ask FINCEN to define “antiquities” narrowly as possible and to adopt high monetary thresholds before bureaucratic requirements kick in. 

In that regard, Congress supplied the Treasury Department with the following specific guidelines for the regulations: 

• having the regulations vary by the size of the business, the size of the transaction being conducted, and whether the transaction takes place in the United States or elsewhere;
• whether the regulations should focus on the high-value trade in antiquities in a different way than lower-value objects;
• whether the antiquities dealer must identify the actual purchaser of an antiquity when the seller or buyer is working through an agent or intermediary;
• the need, if any, to identify trade seller or buyers, such as other dealers, advisors, consultants, or other persons trading in antiquities as a business;
• whether volume or financial thresholds should apply in determining whether an antiquities dealer or a specific transaction should be regulated; and,
• whether certain transactions should be exempted from the regulations.

These guidelines were added to the Maloney Amendment during the Conference with the Senate.  Presumably, they are the result of  Global Heritage Alliance and other advocacy groups for collectors and the businesses of the antiquities and art trade raising these issues with Senate Finance. 

The law also requires a further study to be conducted by Treasury solely with input from law enforcement agencies as to whether the larger art market should also be regulated.

Despite some effort to require FINCEN to focus its efforts on more problematic actors and transactions, this law represents a triumph of fear mongering over fact and intensive lobbying, chiefly by archaeological advocacy groups with an axe to grind against private collecting and the trade, along with AML compliance contractors looking for a new line of business.  This effort was led by the Antiquities Coalition, a well-funded and politically connected archaeological advocacy organization, and AML Right Source, an AML compliance contractor.  Their advocacy is also reflected in the New York Times Coverage of the issue:  https://www.nytimes.com/2021/01/01/arts/design/antiquities-market-regulation.html  It is indeed unfortunate that neither Congress nor the Times paid much attention to serious questions raised about the claims behind this advocacy:  https://culturalpropertynews.org/rand-corp-report-demolishes-assumptions-on-antiquities-and-terror/

It will be absolutely essential for collectors and the small businesses of the antiquities trade to comment on these regulations if we are to have any impact on how hard they will be on collecting and the industry.  There also is at least the possibility that  FINCEN will propose very broad regulations by treating “antiquities” the same way as “antiques.”  (There is some precedent for this in other U.S. statutes.)  Obviously, if “antiquities” are treated as “antiques” much of the art and collectibles business will be subject to these regulations.  Certainly, we can expect the archaeological lobby and AML contractors to push to have these regulations to cover as many dealers as is possible.  However, while the Antiquities Coalition and AML Right Source may be well funded and have both political influence and the ability to place favorable coverage in the NY Times, what they lack is the ability to generate large numbers of comments.  Of course, we will see if collectors and the trade turn out in force to protect their hobby and their businesses.  The numbers are certainly there if these groups can be motivated. 

The above was originally published on Peter Tompa's Cultural Property Observer blog. 

On October 27, 2020, the US Cultural Property Advisory Committee (“CPAC”) met to consider a proposed MOU with Nigeria and proposed renewals with Bolivia and Greece. The following members were present:  (1) Stefan Passantino (Chairman- Public); (2) Steven Bledsoe (Public); (3) Karol Wight (Museums); (4) J.D. Demming (Public); (5) Ricardo St. Hilaire (Archaeology); (6) Joan Connelly (Archaeology) and (7) Anthony Wisniewski (Collector-Sale of International Cultural Property).  Allison Davis, CPAC’s State Department Executive Director, and Catherine Foster, a Cultural Heritage Center staffer, were also present.

In advance of this meeting, there was a major shake-up on CPAC.  The following Obama appointees were removed or resigned:  (1) Adele Chatfield-Taylor (Public); (2) James Reep (Public); and (3) Lothar Von Falkenhausen (Archaeology).  At the last CPAC public session to discuss a renewal the MOU with Italy, von Falkenhausen told ancient coin collectors (who were represented at the meeting) that he believed that they should take up another hobby.  It is unclear if this comment had anything to do with his departure.  President Trump appointed Messrs. Bledsoe and Demming to replace Ms. Chatfield-Taylor and Mr. Reep.  One archaeological slot remains unfilled.

Chairman Passantino welcomed the speakers.  He indicated that the Committee had read all the comments, and that given the large number of speakers, each would only be allowed 3 minutes to focus on points most important to them.  Chairman Passantino called on speakers who had put in papers on Nigeria first, then speakers who had written about Bolivia, and finally Greece.  There was some overlap because some speakers put in papers on more than one topic.  He deferred questions to the end to be assured everyone who registered to speak would be heard.

The following individuals provided public comments:  (1) Tess Davis (Antiquities Coalition); (2) Brian Daniels (Archaeological Institute of America); (3) Kathleen Bickford (Northwestern University); (4) Leslye Amede Obiora (Institute for Research on African Women, Children and Culture); (5) Kate FitzGibbon (Committee for Cultural Policy); (6) Donna Yates (Maastricht University); (7) Maria Bruno (Dickinson College); (8) Kris Lane (Tulane University); (9) Daniel Sedwick (International Association of Professional Numismatists); (10) Peter Tompa (Global Heritage Alliance); (11)  Christos Tsirogiannis (University of Aarhus, Denmark); (12) Kim Shelton (Berkley); (13) Nathan Elkins (Baylor University); (14) Ute Wartenberg-Kagan (Columbia University); (15) Morag Kersel (DePaul University); (16) Dmitry Narkesis (Columbia University); (17) Rocco Dibenedetto (Hahn Loeser- Association of Art Museum Directors); (18) Douglas Mudd (American Numismatic Association); and (19) Randolph Myers (Ancient Coin Collectors Guild).

Tess Davis (TD) indicates that the Antiquities Coalition works with partners in the art market, the U.S. Government and Foreign Governments.  She believes import restrictions help protect the legitimate market.  She denies that import restrictions act as embargoes because they allow listed material into the country that has been documented as being outside the country for which restrictions were provided before those restrictions went into place.  She also believes that U.S. customs should not accept export certificates from other EU governments where objects have been listed for specific EU countries like Greece.  She notes certain EU countries do require export permits within the EU despite the general free circulation of goods within the EU.

The Antiquities Coalition’s written comments can be found here:

https://www.regulations.gov/document?D=DOS-2020-0036-0077 (Bolivia)

https://www.regulations.gov/document?D=DOS-2020-0036-0080 (Greece)

https://www.regulations.gov/document?D=DOS-2020-0036-0076 (Nigeria)

Brian Daniels (BD) focuses on the Fourth Determination under the Cultural Property Implementation Act (“CPIA”), regarding the international exchange of cultural patrimony.  He notes that Nigeria has sent several exhibits to the United States.  Most recently, the Block Museum of Art at Northwestern University (Greater Chicago) hosted the 2019 exhibition, Caravans of Gold, Fragments in Time: Art, Culture, and Exchange across Medieval Saharan Africa, which displayed the scope of Saharan trade and the shared history of West Africa, the Middle East, North Africa, and Europe from the eighth to sixteenth centuries. This exhibition involved significant loans from Nigeria. It was slated to travel to the National Museum of African Art, Smithsonian Institution (Washington, D.C.) in 2020, but its opening has been postponed due to COVID-19.  He indicates that both Bolivia and Greece have been similarly generous in sending exhibitions to the United States.

The Archaeological Institute of America’s written comments can be found here:

https://www.regulations.gov/document?D=DOS-2020-0036-0083

Kathleen Bickford (KB) discusses her role as curator for the Caravans of Gold exhibit for the Block Museum of Art at Northwestern University.  She states Nigeria's request meets all criteria for determinations in favor of cultural property protections. Important cultural patrimony, ranging from fragments to complete objects, continue to emerge from archaeological sites within the country, while objects of more recent date remain within communities and at royal courts, as well as in homes, shrines, and storehouses. These objects are under severe threat from pillage and theft. Despite efforts to curtail the international market for archaeological and traditional objects from Nigeria, including tighter requirements on provenance among North American museums and accelerating debates about the restitution of African objects from the colonial period, there continues to be a high demand in the international art market for cultural heritage objects from Nigeria.  She also indicates there are many fakes on the market.  Finally, she notes that there is much violence in Nigeria and that cultural heritage is a unifying force.

KB’s written comments can be found here:

https://www.regulations.gov/document?D=DOS-2020-0036-0046

 Leslye Amede Obiora (LAO) has been a Professor of Law in the United States since 1992.  She previously served as the Minister of Mines and Steel Development for the Federal Republic of Nigeria.  She states cultural heritage issues are human rights issues. LAO indicates there is a cabal of powerful people involved in looting in Nigeria. She believes a MOU will help bolster civil society, and she wonders why it has taken so long for the United States to offer one to Nigeria.

Kate FitzGibbon (KFG) indicates that the Committee for Cultural Policy and Global Heritage Alliance applaud efforts to help Nigeria address looting, but question whether sufficient evidence has been submitted to support entering into a MOU.  There are many Nigerian materials on the market and in private and museum collections, but the vast majority of these materials left Nigeria decades ago.  Most of this material was removed during the colonial era.  Material produced after 1945 is considered touristic in nature.  There is little in the record about Nigerian self-help measures.  KG is concerned that this request is about closing the barn door after the horses have already left.

The CCP’s and GHA’s written comments on the Nigerian MOU may be found here: https://culturalpropertynews.org/nigeria-support-cultural-expansion-not-art-blockade/

The CCP’s written comments about the Greek MOU can be found here:

https://beta.regulations.gov/comment/DOS-2020-0036-0075

Donna Yates (DY) indicates that she has tracked illicit Colonial and Republican era Bolivian artifacts. She indicates that while there appears to be less thefts from churches now, it takes years for this material to surface on the market. DY also indicates there is absolutely no social, educational, or scientific benefit to allowing a market for illegally obtained Bolivian cultural objects to exist in the United States. The destruction of the original contexts of these objects in the looting process annihilates our ability to conduct any meaningful archaeological analysis on them. The violent removal of sacred art from churches tears the very fabric that has held small and indigenous communities together for centuries, reducing cultural diversity and survival.

DY’s written comments can be found here: 

https://www.regulations.gov/document?D=DOS-2020-0036-0010

Maria Bruno (MB) states that Bolivian patrimony remains in jeopardy from pillage through the illicit excavation of archaeological sites with the purpose of selling desired objects. Bolivian governmental and volunteer organizations work tirelessly to protect archaeological sites from destruction and to educate the public on the value of preserving their ancient past.  Local communities also work together to protect their local patrimony from destruction as the revenue generated from tourism to the site provides jobs and contributes to the local pride.

MB’s written comments can be found here: 

https://www.regulations.gov/document?D=DOS-2020-0036-0068

Kris Lane (KL) shares the archaeologists’ concerns about looting, but thinks coins should be treated differently than other objects, like historic records.  While archives should not be removed from their place of origin, items like coins were not state property and were intended to circulate far from where they were made.  This is certainly the case for coins struck in Bolivia.  The Bolivian gold escudo and silver peso were international currencies.  They were even legal tender in the United States before the Civil War. 

Dan Sedwick (DS) indicates that IAPN supports Bolivian efforts to restore the Potosi mint.  DS provides some history.  Bolivian coins are very common.  DS has always had some in inventory.  Minting in Bolivia begins with hand-struck silver coins in 1573-4 under Spanish dominion and continues through early Republic times starting in 1825 to present day. Throughout these four-and-a-half centuries of minting, most of the coins were the property of rich men back in Spain, not the people of Bolivia, and these coins traveled far from the current boundaries of Bolivia, in fact to all the continents of the earth except Antarctica. DS also notes that IAPN’s submission shows that current Bolivian laws do not explicitly treat coins as cultural heritage.  As for Greece, DS states this renewal should not be an excuse to expand current import restrictions to trade coins that circulated around the ancient world.

The International Association of Professional Numismatists’ and the Professional Numismatists Guild’s written comments can be found here:

https://www.regulations.gov/document?D=DOS-2020-0036-0067 (Bolivia)

https://www.regulations.gov/document?D=DOS-2020-0036-0024 (Greece)

Peter Tompa (PT) discusses both the Greek and Bolivian MOUs.  First, as to the proposed renewal of the Greek MOU, he states that this renewal is no excuse to expand current import restrictions.  Those restrictions purport to only apply to coin types that circulated locally in Greece in order to comply with the statutory requirements found in 19 U.S.C. § 2601.  That provision requires that such coins were “first discovered within” and are therefore subject to Greek export controls.  Under no circumstances should CPAC recommend expanding those restrictions to widely circulating trade coins which can be found most anywhere.  Second, CPAC should recognize the obvious ramifications of Greece’s membership in the European Union (“E.U.”). Coins on the current designated list may be traded outside the E.U. with or without an export license according to the local law of Greece’s sister E.U. members. CPAC, the State Department and U.S. Customs and Border Protection (“CBP”) should honor these E.U. export controls, which, after all, are also binding on Greece as an E.U. member.  Finally, he urges that archaeologists be asked to do their own part too.  CPAC should ensure archaeological missions pay diggers a fair living wage and that they be required to file site security plans which take advantage of modern electronic surveillance technology.  

PT’s full oral statement can be found here:  http://culturalpropertyobserver.blogspot.com/2020/10/this-is-no-time-to-expand-restrictions.html

GHA’s written comments on the Greek MOU can be found here:

https://beta.regulations.gov/comment/DOS-2020-0036-0012

GHA’s and CCP’s written comments on the Bolivian MOU can be found here:

https://beta.regulations.gov/comment/DOS-2020-0036-0011

Christos Tsirogiannis (CT) has worked with law enforcement, including the DA in New York City and U.S. Homeland Security, to repatriate artifacts to Greece and other countries.  He is also working on a way to detect looted antiquities using new technology.  Recently, Greek police broke up a antiquities smuggling operation in Patras, Greece, that had coins and other artifacts. 

CT’s written comments can be found here:

 https://beta.regulations.gov/comment/DOS-2020-0036-0088

Kim Shelton (KS) excavates at Nemea.  She has spent sleepless nights in fear of looters.  Economic austerity has made the problem worse.  Coin evidence is important to her work.

Nathan Elkins (NE) supports restrictions on all ancient coins that circulated in quantity in Greece, including trade coins like Athenian Tetradrachms, which currently are not restricted. Looting results in the loss of important contextual information.  Coins can be important dating tools.  They helped date the ruins of an ancient Synagogue he helped excavate in Israel.

NE’s written comments can be found here:

https://beta.regulations.gov/comment/DOS-2020-0036-0028

Ute Wartenberg-Kagan (UWK) supports restrictions on all ancient coins that circulated in quantity in Greece.  Coins are among the most frequently looted items. Once taken out of their archaeological context, some of the historical and economic meaning is often lost. Sadly, numismatists are used to working with coins that have no archaeological context, and the fact that there is a finite number of coins in the ground makes their protection all the more important. Unfortunately, the trend is going very much in the wrong direction, and here modern technology enables looting on a scale that has not been seen before. Ever more sophisticated and cheaper metal detectors allow more people to dig up coins. Online sales via eBay, vcoins, Amazon, or in Facebook groups, allow the sale of staggering numbers of coins. On any given day, over 100,000 ancient coins and coin lots are for sale on eBay. MOUs should be considered friends of collectors because they help keep looted material off the market.

UWK’s written comments can be found here:

https://beta.regulations.gov/comment/DOS-2020-0036-0078

Morag Kersel (MK) says she was interviewing a collector who had a Cyclodelic figurine which the collector said was worth $1 million.  He indicated now that ancient art is an investment.  MK indicates that the high prices for ancient art helps stimulate looting.

Dmitry Narkesis (DN) has witnessed looting at archaeological digs.  Looting is real problem that impacts archaeology.  It takes a lot of time and effort to try to fight it.

Rocco Dibenedetto (RD) states that the AAMD does not oppose the Greek MOU, but Greece should be held to account for its obligations under Art. II of the current agreement.  One of those undertakings is to facilitate loans of materials to U.S. museums.  Despite Greece’s promises to do so, that has not happened.  The designated list should also be scrutinized to ensure that it only covers archaeological objects over 250 years old. 

The AAMD’s written comments can be found here:

https://beta.regulations.gov/comment/DOS-2020-0036-0072

Douglas Mudd (DM) states that current import restrictions have hurt the ANA’s educational mission because foreign scholars have been unwilling to bring their collections to the United States for fear of them being seized by U.S. customs.  Despite import restrictions being renewed over and again, looting remains a problem which suggests they are not working.  DM states that a new paradigm needs to be considered given their failure, one based on Britain’s Portable Antiquities Scheme, which encourages people to report finds with the prospect of a cash award for any coins kept by the government.  While expense is an issue, perhaps aid from wealthy countries can help get these programs going.

The ANA’s written comments can be found here:

https://beta.regulations.gov/comment/DOS-2020-0036-0023

Randolph Myers (RM) states there can be no dispute ancient coins circulated in great numbers far from where they were found.  This is detailed in a report appended to the ACCG’s written comments.  This is significant because as recognized by a U.S. District Court import restrictions are only appropriate on archaeological objects both first discovered within and subject to the export control of a specific country. 

The ACCG’s written comments can be found here:

https://beta.regulations.gov/comment/DOS-2020-0036-0003

Question and Answer Period

Karol Wight asks LAO about the situation in Nigeria.  LAO states Nigeria is under siege, but that is no reason not to enter into a MOU on its behalf.  She again suggests a MOU is a human rights issue.

Anthony Wisniewski asks TD and DY if they receive foreign government money.  (The State Department recently issued a directive calling for the disclosure of such information.  See https://www.politico.com/news/2020/10/13/trump-think-tanks-foreign-funding-429209)  TD states that the Antiquities Coalition does not receive such funding.  DY indicates she receives such funding from the European Union.  (She currently holds a €1.5 million European Research Council grant to study the illicit trafficking of cultural objects.)

Anthony Wisniewski asks UWK if it is unremarkable that Roman or Byzantine coins from the Thessalonica mint can be found in large numbers in today’s Turkey and Albania.  She agrees with this statement.  

Joan Connelly asks KS about what coins have been found at Nemea.  KS indicates that coins from many different Greek cities have been found there probably because it was the center for sacred games.  They also find many different coins at a Christian sanctuary on the site.

Karol Wight asks KB if she has had any other interaction with Nigerian scholars outside her work on exhibits.  KB says all her work has been on exhibits. 

J.D. Demming asks DM to elaborate on his ideas to disincentivize looting. DM states that the U.K.’s Portable Antiquities Scheme incentivizes people to report their finds.  Perhaps there can be a global antiquities scheme with funding from richer countries.

Ricardo St. Hilaire asks LAO about whether she saw any parallels between looting and illegal mining.  LAO says Nigeria recognized that it takes a thief to catch a thief so it invested resources to help illicit miners become clean.  She refers to DM’s statements about PAS and says there may be parallels.

The State Department has announced a proposed renewal of a Memorandum of Understanding Concerning the Imposition of Import Restrictions on Categories of Archaeological and Byzantine Ecclesiastical Ethnological Material through the 15th Century A.D. of the Hellenic Republic. That MOU first authorized import restrictions on Greek cultural artifacts in 2011. It has been renewed once in 2016 without further changes. The initial MOU authorized import restrictions on certain ancient Greek coins. We hope to preclude any further expansion of those restrictions and advocate for acceptance of legal exports from fellow EU countries to be treated like a legal export from Greece.  More info

On July 22, 2020, the US Cultural Property Advisory Committee (“CPAC”) met to consider proposed renewals of MOU’s with Colombia and Italy. The following CPAC members were present via videoconferencing: (1) Stefan Passantino (Chairman- Public); (2) Adele Chatfield-Taylor (Public); (3) Karol Wight (Museums); (4) James Reep (Public); (5) Ricardo A. St. Hilaire (Archaeology); (6) Lothar Von Falkenhausen (Archaeology); and  (7) Anthony Wisniewski (Collector-Sale of International Cultural Property).  Allison Davis, CPAC’s State Department Executive Director, was also present.

Chairman Passantino welcomed the speakers.  He indicated that the Committee had read all the comments, and that speakers would be allowed 5 minutes to focus on points most important to them.  After all the speakers were finished, he would open up the floor to questions. Those who wanted to speak about the proposed Colombian MOU went first.  The order of speakers was as follows:  (1) Sarah Newman (University of Chicago); (2) Robert Drennan (Society of American Archaeology); (3) Kate FitzGibbon (Committee for Cultural Policy); and (4) Brian Daniels (Archaeological Institute of America).   Next, the Committee heard the following speakers on the Italian renewal: (1) Kate FitzGibbon (Committee for Cultural Policy); (2) Arturo Russo (International Association of Professional Numismatists); (3) Doug Mudd (American Numismatic Association); (4) Josh Knerly (Association of Art Museum Directors) (5) Peter Tompa (Global Heritage Alliance); (6) Elizabeth Greene (Archaeological Institute of America); and (7) Randolph Myers (Ancient Coin Collectors Guild).

Sarah Newman (University of Chicago) spoke about her experiences as a Fulbright Scholar.  Although Covid 19 cut her work short, she enjoyed her experience with Columbian colleagues studying museum collections. She found them very helpful in making their collections accessible to her for her study.

Robert Drennan (Society of American Archaeology) indicated that the MOU has benefitted the protection of Colombian cultural patrimony because even people in rural areas know that it is illegal to loot artifacts. There have been efforts to perform rescue archaeology before construction projects.  One example showing that legislation protecting archaeological remains actually carries substantial weight on the ground, is the case of Nueva Esperanza. Archaeological remains were reported in the process of planning for the construction of a major electricity substation just south of Bogotá. These remains turned out to be those of a large nucleated pre-Hispanic Muisca settlement. Against strong political and economic opposition, construction was delayed and an extensive multimillion dollar excavation project was funded under the terms of regulations to protect cultural heritage.

There have also been more academic interest.  Recently founded Masters' and Doctoral programs in anthropology, archaeology, and cultural heritage at the Universidad Nacional de Colombia, at the Universidad de los Andes, at the Universidad Pedagógica y Tecnológica de Colombia, and at the Universidad Externado have grown and become more solidly established during the past five years. 

Campaigns to increase awareness that pre-Columbian Native American artwork is not simply a potential economic resource have had an impact, as have enforcement efforts, but more remains to be done. Sadly, the US continues to be a major market for looted Colombian cultural materials.

The existing Memorandum has been successful. The Memorandum, however, is still very much needed. There is every reason to believe that a renewal would help to maintain the momentum and lead to continued progress in the future.

Dr. Drennan’s written testimony can be found here:  https://beta.regulations.gov/document/DOS-2020-0022-0299

Kate FitzGibbon (Committee for Cultural Policy) provides some brief thoughts about the proposed renewal with the MOU with Colombia.  Ms. FitzGibbon indicates that Colombia is obliged to engage in self-help measures, but it is unclear, what, if any, self-help measures have been undertaken.  Ms. FitzGibbon urges the Committee to ensure such self-help measures have been undertaken before a MOU with Colombia is renewed.  She also questions whether all the material described as “ethnological” on the current designated list meets the definition of such material under the Cultural Property Implementation Act (“CPIA”).

The Committee for Cultural Policy’s and Global Heritage Alliance’s written testimony concerning the Colombian renewal can be found here: https://beta.regulations.gov/document/DOS-2020-0022-0044

Brian Daniels (Archaeological Institute of America) indicates that Colombia has met all four determinations for a renewal of its MOU.  First, he acknowledges Dr. Drennan’s testimony about the collaboration between US and Colombian archaeologists.  He indicated this relates to the fourth determination under the CPIA, relating to whether import restrictions are “consistent with the general interest of the international community in the interchange of cultural property among nations for scientific, cultural, and educational purposes.”

Dr. Daniels then discusses the first determination which requires a showing the cultural patrimony of Colombia is in jeopardy from the pillage of archaeological materials. Ongoing looting in Colombia is outlined in the statement by Dr. Drennan and the SAA. He discusses recent seizures of looted cultural material in Colombia.

He also discusses the designated list and states that previous Committees had already made a determination what was considered ethnological material. 

The AIA’s written testimony on the Colombian renewal can be found here: https://beta.regulations.gov/document/DOS-2020-0022-0393

The Committee then turned to testimony regarding the Italian MOU renewal.

Kate FitzGibbon (Committee for Cultural Policy) recounts how both she and Patty Gerstenblith, who represented the interests of the archaeological community, were appointed at the same time, but Prof. Gerstenblith’ s application was rushed through so she could participate and vote on the initial Italian request.  Ms. FitzGibbon, who represented the trade, was not allowed to do so.  Had Ms. FitzGibbon been allowed to participate, she would have voted “no” on the request because Italy had not done enough to protect its cultural patrimony.

Since that time, Italy’s Carabinieri have done an excellent job stopping looting, but Italy has not complied with the MOU in other ways.  First, Italy has failed to allow the export of items freely available for sale within Italy itself.  Second, Italy has not made it easier for museums to secure loans. Finally, Italy has not released decades old Polaroid photographs of looted items in the Medici archive.  Instead, Italian authorities have shared them with a researcher who used them to play “gotcha” with auction houses.

The Committee for Cultural Policy’s written testimony about the Italian renewal can be found here:  https://beta.regulations.gov/document/DOS-2020-0022-0391

Arturo Russo (International Association of Professional Numismatists) speaks for the premier professional trade association for coin dealers.  He starts his statement with a Latin maxim, “pacta sunt servanda” which roughly translates as “bargains are to be observed.”

He notes that after the initial MOU with Italy in 2001, Italy did as promised make it easier to export Italian cultural goods, including coins.  However, since import restrictions were first imposed on coins in 2011, it has become increasingly difficult to obtain export permits, and today it is almost impossible to get such permits for even low value and common ancient coins.

Last year, Italian authorities published regulations that state that you cannot even apply for an export license unless you can prove that an archeological object is outside of the ground before 1909, the date of Italy’s first cultural patrimony law.  Italy has over twenty different export offices and luckily some of them don’t enforce this regulation, as quite rightly, they do not consider coins in trade to be archeological items. On the other hand, other offices, like that in Milan, apply this regulation in a very stringent manner, and require proof of provenance before 1909.  This makes it impossible to export ancient coins, because only few coins have a provenance stretching back that far.  Just to be clear, ancient coins are freely bought and sold inside Italy, but they become “illegal” and important to Italian cultural patrimony only when one applies to take them outside of Italy, which is unacceptable. 

The situation is so egregious that there have been cases where coins that were legally purchased by Italian collectors in US auctions prior to 1980 where not only denied an export license, but were confiscated simply on the basis of lack of provenance prior to 1909. It is worth noting that coins have been collected since the Renaissance. There are studies from prominent Italian scholars, which Mr. Russo would be happy to share, which demonstrate that coins in the market should not be treated as archaeological objects because an immense number of coins were found before 1909. Nevertheless, most of the coins do not have a documented provenance because until the recently auctions were limited to coins from highly important collections. Mr. Russo notes that in 1994 the two most prominent numismatists in Italy, Silvana Balbi De Caro and Francesco Panvini Rosati, stated that only coins documented to be from an archaeological find are of archaeological interest. 

In 2012, Mr. Russo’s firm, Numismatica Ars Classica, represented a group of investors that purchased and dispersed the Archer Huntington collection of coins.  This large collection was assembled between the end of 19th century and 1930. The collection was property of the Hispanic Society of America and on loan to the American Numismatic Society. The vast majority of the Ancient coins in the collection did not have a documented provenance prior to 1909 and theoretically if purchased by an Italian collector, would be subject to detention and seizure if they were subsequently exported from Italy.  

This behavior is clearly unacceptable.  So, Mr. Russo asks that CPAC freeze the renewal of import restrictions on coins until Italy complies with its obligation to facilitate the issuance of export licenses. The current situation clearly disadvantages American collectors and institutions as coins legally owned in the States can be freely sold to Italian buyers while the same coins cannot leave Italy and be freely sold to American collectors. 

What makes the whole situation even more inconceivable is the fact that Italy has probably one of the largest if not the largest numismatic patrimony in the world. There are over 200 institutions that have coins and the largest museums like Naples, Rome and Turin have collections which contain over a million specimens each. Unfortunately, most of these collections are not published nor accessible through the internet with the result that they are almost completely inaccessible to the public.

Mr. Russo indicates that the Italian Carabinieri do an excellent job fighting looters and he knows as a matter of fact that they do not share the belief that everything without a provenance prior to 1909 has to be considered illegal. They are fully aware that a legal and healthy market exists and must be preserved. IAPN is not against a stronger cooperation between Italian authorities and US to fight illegally excavated coins coming onto the US market, but blanket restrictions are unfair to the trade. 

In concluding, Mr. Russo also indicates that any effort to extend restrictions to Roman Republican and Imperial coins is simply ridiculous as it uncontested that the vast majority of these coins are found outside the boundaries of Italy.  In closing, he reiterates that current restrictions should be frozen until Italy makes it easier to procure export licenses.  

IAPN’s written testimony about the Italian renewal can be found here:  https://beta.regulations.gov/document/DOS-2020-0022-0143

Peter Tompa (Global Heritage Alliance) states that current events, including mobs tearing down historic statues and Erdogan’s conversion of Hagia Sophia from a museum to a mosque, as well as the reaction of archaeological advocacy groups and some of their prominent members, raise the fair question whether lobbying on behalf of foreign governments directed at suppressing market demand is really about conservation, or about exercises of power and control.

Tompa then states that it is time for this Committee to consider a new paradigm, one which focuses not on suppressing all trade of every conceivable artifact with embargoes, but which instead facilitates lawful trade in objects, especially those legally available for sale within the country seeking restrictions. 

He indicates that there is no better place to start than this renewal.  Legal trade in cultural goods of Italian types has already been embargoed for 20 years.  During this period, Italy’s Carabinieri have mounted a successful campaign against looters.  However, largely due to the sheer number of historic sites, lack of funding and corruption, the Italian State has failed to preserve all the cultural heritage already in its care.  As set forth in the IAPN’s study, this is particularly true for small, commonplace items like coins. 

What does GHA request?  First, GHA joins hundreds of coin collectors to ask that under no circumstances should the designated list be expanded, particularly to late Roman Republican and Imperial coins.  As set forth in IAPN’s papers, only 2.8% of Roman Imperial coins hoards containing coins from Italian mints are found within Italy itself making it impossible to fairly consider them Italian cultural patrimony.  GHA also believes that the CPIA mandates that the current Italian designated list needs to be reformed to ensure it only covers items only found in Italy.  For coins, this means—using the Greek designated list as a model—that at least larger denomination coins which circulated in international trade should be delisted.

GHA also requests that any renewal be conditioned on Italy immediately facilitating the licit export of any item legally available for sale within Italy itself.  Despite solemn promises to do so under each of the prior MOU’s, as Mr. Russo has noted, Italy has actually made it harder to export ancient coins of the sort openly and legally sold within Italy itself.  

Finally, GHA also asks the Committee to facilitate lawful trade by requiring US Customs to accept legal exports from sister EU countries as legal imports of items on the Italian designated list into the United States.  Tompa indicates such a modification of the MOU is not only consistent with the UNESCO Convention, but Italian law. 

GHA’s written testimony regarding the proposed Italian renewal can be found here: https://beta.regulations.gov/document/DOS-2020-0022-0048

Douglas Mudd (American Numismatic Association) indicates that his organization opposes any expansion of the current MOU to include late Roman Republican and Roman Imperial coins. Such coins are found in huge numbers outside of Italy and it makes no sense to recognize Italy’s rights to them as its cultural patrimony.  The cumulative impact of current MOU’s has already done much to damage ancient coin collecting in the US.  This is a shame because ancient coins are excellent teaching tools.  Students already suffer from a lack of understanding about ancient cultures.  Roman coins have been used as an adjunct to Latin classes.  The prospect of possible seizure of their coins has dissuaded foreign collectors from sharing knowledge with US Collectors at ANA seminars and coin shows. 

The ANA’s written testimony about the Italian renewal can be found here: https://beta.regulations.gov/document/DOS-2020-0022-0288

Stephen J. Knerly (Association of Art Museum Directors) discussed the concerns of the country’s art museums with regard to the Italian MOU request. The AAMD’s written submission questioned whether Italy’s patrimony was still in jeopardy and whether there were less significant alternatives than import restrictions as well as problems AAMD members were having with loan agreements, but Mr. Knerly’s oral testimony focused on the last issue. Knerly emphasized that AAMD members have cordial museum to museum relationships with Italian institutions but noted that there are problems with loan agreements, in particular expensive fees.  He also criticized the State Department’s use of a standard Article II which made it more difficult to hold countries accountable to hold up their own obligations.

The AAMD’s written testimony about the Italian renewal can be found here: https://beta.regulations.gov/document/DOS-2020-0022-0383

Elizabeth Greene (Archaeological Institute of America) indicates that the AIA supports another extension of the MOU with Italy as necessary to protect Italian cultural patrimony.  As evidence, Dr. Greene points to “Operation Demetra,” which revealed extensive illegal excavations in Sicily linked to a buyer in London.  She also discusses seizures of 20,000 archaeological objects and 4,000 coins in other operations. She notes it is important to protect sites not only for academic, but for to help develop tourism.

The AIA’s written testimony about the Italian renewal can be found here: https://beta.regulations.gov/document/DOS-2020-0022-0392

Randolph Myers (Ancient Coin Collectors Guild) opposes the extension of the MOU as it applies to ancient coins.  He first focuses on any effort to expand current import restrictions to Roman Republican coins.  First, he indicates that one cannot assume late Roman Republican coins were both struck and found in Italy.  He notes this can be proved from a review of “Coin hoards of the Roman Republic Online" that is hosted by the American Numismatic Society. Found on the Internet at http://numismatics.org/chrr.  This database of Roman Republican Coin hoards mainly from the period 155 BC to AD 2 shows that such coins en masse outside of Italy. 

The data is even more significant for Roman Imperial coins.  Large numbers of Roman Imperial coins are found outside modern-day Italy. He cites "The Coin Hoards of the Roman Empire Project," found on the Internet at http://chre.ashmus.ox.ac.uld. This Project, a joint initiative of the Ashmolean Museum and the Oxford Roman Economy Project, "aims to collect information about hoards of all coinages in use in the Roman Empire between approximately 30 BC and AD 400." It proves that less than 3 % of reported Roman Imperial coin hoards containing coins from Italian mints are found within Italy, or stated another way, over 97% are found outside that Country.

The ACCG’s written testimony about the Italian renewal can be found here:  https://beta.regulations.gov/document/DOS-2020-0022-0244

Questions: Anthony Wisniewski (collector-sale of international property) asks Kate FitzGibbon (CCP) and Peter Tompa (GHA) whether EU nations have a right to export cultural goods that must be recognized by the Italian government.  Both FitzGibbon and Tompa say they believe that to be the case. FitzGibbon also notes that the basis for the new EU export law has been questioned by the Rand Corporation which debunked the claim that terrorists were using stolen antiquities as a major funding source.  Tompa notes the new law does not apply to exports of items that originated in the EU so it would not apply to Italian cultural goods.

Arturo Russo that Italy and Greece stand alone in making it difficult to get export permits for common ancient coins.  All the other major EU countries allow such items to be exported fairly easily.

Karol Wight (Museums) asks Stephen Knerly (AAMD) about courier fees.  He indicates this is a problem not only in Italy but elsewhere.  Italy treats couriers as essential visitors so they are allowed entry even during this pandemic.

Ricardo A. St. Hilaire (Archaeology) asks Brian Daniels and Elizabeth Greene (Archaeological Institute of America) about site security plans in archaeological excavation agreements in Colombia and Italy.  Dr. Daniels is not aware of the situation in Colombia. Dr. Greene has no knowledge of the situation in Italy as she has never signed a permit.  She does note, however, that archaeological groups work actively on site protection with local communities and the police.  She has seen this in action in Sicily, where she works.  She notes that local divers have helped protect underwater sites there.

James Reap (Public) and Lothar Von Falkenhausen (Archaeology) state it irrelevant and unfair to attribute the actions of prominent members of archaeological advocacy groups in encouraging or justifying mobs tearing down historic statues to their organizations.  Peter Tompa (GHA) respectfully disagrees because it raises the ultimate question whether the efforts of these groups are really solely about conservation or an exercise of power and control.  Von Falkenhausen adds that he believes in the archaeological value of coins and gratuitously states that ancient coin collectors should collect something else.  (In CPO’s opinion, this demonstrates the anti-collector bias of many of those appointed to represent the archaeological community on this Committee.  In reality, not all archaeologists take such a view and some even collect ancient coins and other mostly minor artifacts.)

By Peter K. Tompa | February 19, 2019

On Feb. 19, 2019, the Supreme Court denied the Guild’s petition for certiorari. See https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/18-767.html That petition asked the Court to review the 4th Circuit’s decision that treats import restrictions under the Cultural Property Implementation Act (CPIA) as embargos. The Guild had argued the plain meaning of the statute and the Guild’s Fifth Amendment Due process rights requires the CPIA to be read to only apply to coins of types on designated lists proven to be illicitly exported from Cyprus or China after the effective date of government regulations. The Fourth Circuit instead approved the forfeiture of Cypriot and Chinese coins of types on designated lists imported into the United States after the effective date of the regulations, i.e., an embargo of all coins of restricted types rather than targeted, prospective import restrictions that do not impact the sale of coins on the legitimate marketplace abroad Denials of certiorari have no precedential value whatsoever. The Fourth Circuit’s opinion is only binding within its jurisdiction (Maryland, Va. West Va., North and South Carolina). Nevertheless, the decision will likely be cited as precedent elsewhere, and will be pitched by the proponents of import restrictions as approving broad executive authority in the area.

By Peter Tompa | December 19, 2018

ACCG Seeks Supreme Court Review

On December 12, 2018, the Guild has asked the U.S. Supreme Court to review the Fourth Circuit Court of Appeals’ decision approving the forfeiture of Cypriot and Chinese coins that were imported to establish standing from its earlier test case. The case appears on the Supreme Court’s docket as 18-767.

The “Questions Presented” set forth the issues the Guild has asked the Supreme Court to review:

QUESTIONS PRESENTED

This case arises from the civil forfeiture of ancient Cypriot and Chinese coins under the Cultural Property Implementation Act (“CPIA”), 19 U.S.C. §§ 2601-2613. The coins are of types that appear on “designated lists” subject to import restrictions. Congress limited the reach of such import restrictions to archaeological objects “first discovered within” and “subject to export control by” a specific State Party to the 1970 UNESCO Convention, and further placed the burden of proof on the Government to establish that such designated material was listed in accordance with these criteria. 19 U.S.C. §§ 2601, 2604, 2610. Congress also ensured such import restrictions are entirely prospective. They only apply to designated archaeological material illicitly exported from the State Party after the effective date of the implementing regulations. Id. § 2606. The questions presented are:

1. Did the courts below violate the Guild’s 5th Amendment Due Process Rights when they authorized the forfeiture of the Guild’s private property without any showing that the Guild’s coins were illicitly exported from Cyprus or China after the effective date of import restrictions?

2. In a civil forfeiture action implicating the Guild’s 5th Amendment Due Process Rights, did a prior decision upholding import restrictions under a highly deferential ultra vires standard of review “foreclose” consideration of legislative history, judicial admissions, and other information relevant to the Government’s burden of proof?

The Guild sums up its argument as follows:

The decisions below collapse any meaningful distinctions among detentions, seizures and forfeitures and between ultra vires and constitutional review. Furthermore, they have effectively rewritten prospective, targeted CPIA import restrictions into broad embargoes on all archaeological objects of types found on designated lists. Amicus support before the Fourth Circuit attests to the public importance of these issues. Accordingly, the Guild respectfully requests that the Court grant certiorari to decide important constitutional questions about the burden of proof in a civil forfeiture case. Alternatively, the Guild respectfully requests the Court to remand this matter to the Fourth Circuit in the interests of justice and order that Court to address the Guild’s constitutional claims.

The Guild’s petition may be reviewed here: https://www.supremecourt.gov/Search.aspx?FileName=/docket/docketfiles/html/public\18-767.html The Supreme Court’s decision whether to accept the case for review or to order a summary remand is expected in the next several months. Even though the Supreme Court only accepts 1-2% of the cases brought before it, the Guild believes trying to keep the burden of proof on the government where it belongs is well worth the effort.

By Peter K. Tompa | September 19, 2018

Petition for rehearing filed

The ACCG has asked the 4th Circuit to rehear its August 7, 2018 decision affirming the ruling of the District Court forfeiting certain of the Guild's coins. The coins in question were imported for purposes of establishing "standing" as part of an unsuccessful effort to seek judicial review of controversial import restrictions placed on ancient coins. The ACCG asks for hearing so that its constitutional claims will be properly considered.