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Legislation Proposed in US to Seize and Forfeit Cultural Property

by Kate Fitz Gibbon

This article appeared first on the Committee for Cultural Policy website.

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November 10, 2016 – Legislation was introduced on September 16, 2016 that replaces longstanding U.S. laws protecting the ability of American museums and collectors to preserve, study and display cultural artifacts. Senate Bill 3449 amends the National Stolen Property Act (NSPA), a criminal statute.

Unlimited discretion for federal agencies

The bill will give federal agencies virtually unlimited discretion to seize and repatriate cultural artifacts that have been long-traded and displayed in this country, simply based on an assumption that they may have been illegally removed from their country of origin sometime in the past. Importers, art dealers, collectors, and museums will face seizure, forfeiture, and potential criminal liability, even for items valued as low as $50.00; few would be willing or able to fight such forfeitures in the courts.

Serious legal effects camouflaged by Middle East topic

The legislation is called the “Terrorism Art and Antiquity Revenue Prevention Act of 2016” or the “TAAR Act.” The most serious effects of the legislation are camouflaged by its cover as a measure to ensure that Syrian and Iraqi antiquities are not brought into the US illicitly and sold to provide funding for terrorism. Although the claims that ISIS receives significant funding from antiquities looting have long since been debunked, a press release issued by Senate sponsor Mark Steven Kirk of Illinois again repeats the discredited claim that ISIS is funded by looted art.

Creation of federal government database

The legislation mandates creation of a federal government database that requires anyone who imports, sells, or gifts cultural property of Syria or Iraq to give Homeland Security information and documentation of provenance and any other information the Secretary of Commerce and the Secretary of Homeland Security consider appropriate. It also calls for a government database with information on cultural property from all other nations, and “warnings for specific cultural property, buyers, sellers, appraisers, or other actors with a history of conducting illegal trade in cultural property.”

New monetary threshold for illegal possession 99% lower

The most dangerous effect of this legislation is the way it amends the National Stolen Property Act**. Current law makes it illegal to possess, sell, or transport artifacts valued over $5,000 that are considered stolen, based on a clear “national patrimony” or “national ownership” law that is consistently applied in that foreign country. The proposed law reduces the monetary threshold for prosecution for possession or sale of stolen property from $5000.00 to $50.00.
The proposed law states that “For purposes of an offense under this section, cultural property that has been removed or excavated in violation of local law shall be considered to be stolen.” This means that the US would enforce another country’s export laws even if they are not enforced in the source country, and even if private ownership is allowed in that source country. The US currently recognizes “national patrimony” laws and will enforce them, but as noted above, the US (and many other countries) do not recognize foreign “export” laws, which most countries have, but do not enforce in their own country and against their own citizens.
The proposed law makes it illegal to import, possess, sell, or transport antiquities, ethnological art, or other artifacts fitting the description of “cultural property” as defined under the CPIA, and that have been removed or excavated in violation of local [i.e. source country] laws of any kind.

Definition of Cultural Property

What art and ethnological objects would S. 3994 apply to?
The proposed law defines “cultural property” as in Article 1(a) through (k) of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property. These are:
(a) Rare collections and specimens of fauna, flora, minerals and anatomy, and objects of paleontological interest;
(b) property relating to history, including the history of science and technology and military and social history, to the life of national leaders, thinkers, scientists and artists and to events of national importance;
(c) products of archaeological excavations (including regular and clandestine) or of archaeological discoveries;
(d) elements of artistic or historical monuments or archaeological sites which have been dismembered;
(e) antiquities more than one hundred years old, such as inscriptions, coins and engraved seals;
(f) objects of ethnological interest;
(g) property of artistic interest, such as:
(i) pictures, paintings and drawings produced entirely by hand on any support and in any material (excluding industrial designs and manufactured articles decorated by hand);
(ii) original works of statuary art and sculpture in any material;
(iii) original engravings, prints and lithographs;
(iv) original artistic assemblages and montages in any material;
(h) rare manuscripts and incunabula, old books, documents and publications of special interest (historical, artistic, scientific, literary, etc.) singly or in collections;
(i) postage, revenue and similar stamps, singly or in collections;
(j) archives, including sound, photographic and cinematographic archives;
(k) articles of furniture more than one hundred years old and old musical instruments.
Observers have said that even aside from concerns with amending the definition of “stolen” in the National Stolen Property Act, the proposed law is grossly overbroad: the $50 value is far too low, and the very broad definitions above would cover almost all ancient, ethnographic or tribal art.

New definition of "stolen"

Defining “stolen” as “illegally excavated or removed” based upon an export law will greatly expand the application of the NSPA to artifacts openly sold in source countries. By way of example, in Bulgaria and Italy many coins that were “illegally excavated” at one time or another are openly available for sale within those countries. Thus, the current NSPA would not apply. Yet, under the amendment, similar collector’s coins in the U.S. could become illegal to possess overnight.
The same would be true of antiquities or ethnographic art, which would be illegal to possess, transport, or sell in the US under the NSPA, if it was exported from any country with an export law.
Co-sponsors of the legislation are Thom Tillis of North Caroline, Bill Cassidy of Louisiana, Jeff Sessions of Alabama, Kelly Ayotte of New Hampshire, Chuck Grassley of Iowa, and Marco Rubio of Florida. It is currently before the Senate Committee on Finance.

Notes

* Note: This legislation covers far more than the items covered in Section 302(2) of the Convention on Cultural Property Implementation Act, which is:
“For purposes of this title
(1) The term “agreement” includes any amendment to, or extension of, any agreement under this title that enters into force with respect to the United States.
(2) The term “archaeological or ethnological material of the State Party” means-
(A) any object of archaeological interest;
(B) any object of ethnological interest; or
(C) any fragment or part of any object referred to in subparagraph (A) or (B); which was first discovered within, and is subject to export control by, the State Party. For purposes of this paragraph-
(i) no object may be considered to be an object of archaeological interest unless such object-
(I) is of cultural significance;
(II) is at least two hundred and fifty years old; and
(III) was normally discovered as a result of scientific excavation, clandestine or accidental digging, or exploration on land or under water; and
(ii) no object may be considered to be an object of ethnological interest unless such object is-
(I) the product of a tribal or nonindustrial society, and
(II) important to the cultural heritage of a people because of its distinctive characteristics, comparative rarity, or its contribution to the knowledge of the origins, development, or history of that people.”

** National Stolen Property Act as it would read after passage of Senate Bill S. 3449; changed sections in BOLD:
18 U.S. Code § 2314 – Transportation of stolen goods, securities, moneys, fraudulent State tax stamps, or articles used in counterfeiting
Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, or cultural property of the value of $50 or more knowing the same to have been stolen, converted or taken by fraud; or
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transports or causes to be transported, or induces any person or persons to travel in, or to be transported in interstate or foreign commerce in the execution or concealment of a scheme or artifice to defraud that person or those persons of money or property having a value of $5,000 or more or cultural property of the value of $50 or more; or
Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities or tax stamps, knowing the same to have been falsely made, forged, altered, or counterfeited; or
Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce any traveler’s check bearing a forged countersignature; or
Whoever, with unlawful or fraudulent intent, transports in interstate or foreign commerce, any tool, implement, or thing used or fitted to be used in falsely making, forging, altering, or counterfeiting any security or tax stamps, or any part thereof; or
Whoever transports, transmits, or transfers in interstate or foreign commerce any veterans’ memorial object, knowing the same to have been stolen, converted or taken by fraud-
Shall be fined under this title or imprisoned not more than ten years, or both. If the offense involves a pre-retail medical product (as defined in section 670) the punishment for the offense shall be the same as the punishment for an offense under section 670 unless the punishment under this section is greater. If the offense involves the transportation, transmission, or transfer in interstate or foreign commerce of veterans’ memorial objects with a value, in the aggregate, of less than $1,000, the defendant shall be fined under this title or imprisoned not more than one year, or both.
This section shall not apply to any falsely made, forged, altered, counterfeited or spurious representation of an obligation or other security of the United States, or of an obligation, bond, certificate, security, treasury note, bill, promise to pay or bank note issued by any foreign government. This section also shall not apply to any falsely made, forged, altered, counterfeited, or spurious representation of any bank note or bill issued by a bank or corporation of any foreign country which is intended by the laws or usage of such country to circulate as money.
For purposes of this section-(A) the term ‘cultural property’ has the meaning given that term in section 302 of the Convention on Cultural Property Implementation Act (19 U.S.C. 2601); and (B) the term “veterans’ memorial object” means a grave marker, headstone, monument, or other object, intended to permanently honor a veteran or mark a veteran’s grave, or any monument that signifies an event of national military historical significance. For purposes of an offense under this section, cultural property that has been removed or excavated in violation of local law shall be considered to be stolen.
18 U.S. Code § 2315 – Sale or receipt of stolen goods, securities, moneys, fraudulent State tax stamps
Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise, securities, or money of the value of $5,000 or more or cultural property of the value of $50 or more, or pledges or accepts as security for a loan any goods, wares, or merchandise, or securities, of the value of $500 or more or cultural property of the value of $50 or more, which have crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken; or
Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any falsely made, forged, altered, or counterfeited securities or tax stamps, or pledges or accepts as security for a loan any falsely made, forged, altered, or counterfeited securities or tax stamps, moving as, or which are a part of, or which constitute interstate or foreign commerce, knowing the same to have been so falsely made, forged, altered, or counterfeited; or
Whoever receives in interstate or foreign commerce, or conceals, stores, barters, sells, or disposes of, any tool, implement, or thing used or intended to be used in falsely making, forging, altering, or counterfeiting any security or tax stamp, or any part thereof, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing that the same is fitted to be used, or has been used, in falsely making, forging, altering, or counterfeiting any security or tax stamp, or any part thereof; or
‘Whoever receives, possesses, conceals, stores, barters, sells, or disposes of any veterans’ memorial object which has crossed a State or United States boundary after being stolen, unlawfully converted, or taken, knowing the same to have been stolen, unlawfully converted, or taken-’
Shall be fined under this title or imprisoned not more than ten years, or both. If the offense involves a pre-retail medical product (as defined in section 670) the punishment for the offense shall be the same as the punishment for an offense under section 670 unless the punishment under this section is greater. If the offense involves the receipt, possession, concealment, storage, barter, sale, or disposal of veterans’ memorial objects with a value, in the aggregate, of less than $1,000, the defendant shall be fined under this title or imprisoned not more than one year, or both.
This section shall not apply to any falsely made, forged, altered, counterfeited, or spurious representation of an obligation or other security of the United States or of an obligation, bond, certificate, security, treasury note, bill, promise to pay, or bank note, issued by any foreign government. This section also shall not apply to any falsely made, forged, altered, counterfeited, or spurious representation of any bank note or bill issued by a bank or corporation of any foreign country which is intended by the laws or usage of such country to circulate as money.
For purposes of this section-(A) the term ‘cultural property’ has the meaning given that term in section 302 of the Convention on Cultural Property Implementation Act (19 U.S.C. 2601); and
(B) the term ‘State’ includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States; and
(C) the term ‘veterans’ memorial object’ means a grave marker, headstone, monument, or other object, intended to permanently honor a veteran or mark a veteran’s grave, or any monument that signifies an event of national military historical significance.
For purposes of an offense under this section, cultural property that has been removed or excavated in violation of local law shall be considered to be stolen.


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