Ancient Treasures for Sale

Do antique dealers preserve the past or steal it?

Steven Vincent from the April 2005 issue

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The law does not require this official to declare reasons for the restrictions. Nor must the State Department provide the public with any documentation to support the decision. Even the advisory committee is not privy to all information. "The process is frustrating and shrouded in secrecy," says Santa Fe dealer Fitz Gibbon, who served on the committee from 2001 to 2003.

Worse, the CPIA proved ineffective in protecting the interests of American citizens. In November 1995, U.S. Customs agents entered the New York home of collector Michael Steinhardt and confiscated a third-to-fourth-century Sicilian gold bowl, or "phiale," that Steinhardt acquired from a New York dealer for $1.2 million. In February 1995, Italian authorities had requested the U.S. government's help in retrieving the phiale, which they claimed was part of Italy's cultural patrimony. (Italian law claims state ownership of all antiquities located in Italy, except for those privately owned before 1902.) Using the guidelines of the National Stolen Property Act (NSPA), U.S. officials agreed the phiale was stolen property. But as Steinhardt's defenders noted, Italy had not requested import restrictions under the CPIA. So what right did customs agents have in accusing Steinhardt of possessing stolen property and invading his home to confiscate it?

Enter McClain v. the United States, the most controversial aspect of the cultural patrimony issue in this country and a source of continuing acrimony and contention. When federal agents entered Steinhardt's home to confiscate the "stolen" phiale, they based their action on the 1977 case of an appraiser, Patty McClain, whom American authorities had arrested for carrying pre-Columbian antiquities across the Mexican border into the U.S. In that judgment, the U.S. Court of Appeals for the 5th Circuit in New Orleans, using Mexican law to define stolen archaeological property, upheld McClain's conviction. To put it another way, an American citizen was arrested, convicted, and jailed in the U.S. based on the cultural property laws of a foreign nation. "In my opinion," says Stanford University law professor John H. Merryman, a staunch supporter of regulated international antiquities trade, "McClain was poorly decided."

In Steinhardt's case, that 25-year-old ruling permitted Italy to assert its state ownership laws in American courts, thus turning the phiale into stolen property under U.S. law. Steinhardt unsuccessfully appealed in 1997, and the phiale was returned to Italy. The shock waves from the case are still being felt. Says Ashton Hawkins, former counsel to the trustees of the Metropolitan Museum: "The government made a lot of people apprehensive by seeming able to seize anything on the basis of a complaint from a foreign government. When the U.S. begins to enforce foreign laws against private citizens without due process, this is trouble."

The Antique Dealer in the Flak Jacket

Emboldened by the Steinhardt case, anti-market forces, particularly archaeologists, intensified their attacks. They began portraying dealers and collectors as greedy plunderers running what one archaeologist called a "vast international network" to loot countries in Central America, Europe, Egypt, and the Middle East. Ricardo Elia once declared to me that he wanted to make collecting as "socially distasteful as smoking cigarettes, wearing fur, or eating an endangered species." Lord Renfrew has accused major American museums of "stimulating much of the looting in the world." One Park Avenue collector told me he felt like donning a "flak jacket in public, like I was an abortion doctor." A new clamor arose concerning the world's most notorious case of "cultural plunder": the Elgin Marbles, sculptures from the Parthenon that Britain's Lord Elgin purchased in the early 19th century and shipped back to England. The British Museum has them on display, ignoring Greece's repeated requests for their return.

Whenever I dropped by Schultz's gallery, I found the director writing letters, articles, and legal briefs defending the trade. "This is ridiculous!" he griped one afternoon. "I read that archaeologists liken our profession to international drug dealers. They're saying we rake in $5 billion a year in dirty profits! Do you know what we estimate the entire international antiquities trade amounts to? Around $200 million a year! Where do they get the nerve?"

As the archaeologists stepped up their assault, the trade sharpened its arguments and continues to assert them today. "We have to," says New York dealer Jerry Eisenberg. "The charge that we're somehow responsible for the 'rape of the land' makes a greater impact on the public than our arguments about the benefits of trade." Stanford's Merryman frequently criticizes source country laws that define antiquities as state property. Egypt and Turkey, for example, assert ownership of certain privately held objects within their borders, including some owned for generations. Merryman argues that such laws ensure that the supply of material remains short, thereby creating a lucrative black market. Others, such as collector Ortiz, note that source countries maintain warehouses and storerooms filled with thousands of uncatalogued antiquities, many of which are just "rotting away."

Critics also observe that source countries are often unable or unwilling to pay their citizens for the antiquities they discover. Dealers maintain that many items are tomb objects uncovered by accident, for instance by farmers tilling their fields. If the farmers cannot sell what they discover in a legitimate market, and if their government will not buy such artifacts from them, they have two choices (aside from simply letting the state appropriate the finds): destroy the objects or sell them illegally.

There is also a problem of terminology, trade supporters argue. Many source country export laws blur the distinction between "looted," "illegally exported," "stolen," and "unprovenanced" objects, thereby making it appear as if dealers operate some vast criminal enterprise, when there are subtle but significant differences between those terms. For example, critics of the trade, including many journalists, unjustifiably assume that any antiquity without a solid early provenance probably has been looted.

"The burden of proof is on us, and that's unfair," Schultz frequently argued. "For hundreds of years, people have been buying and selling objects without keeping or publishing proper records. Many collections were built decades ago; contrary to what the archaeology Hezbollah maintains, there are bona fide old collections."

Teachings of Buddhas

In the winter of 2001, an event occurred that bolstered arguments in favor of an international antiquities market: Afghanistan's Taliban regime destroyed two colossal third-century sandstone sculptures of Buddha at Bamiyan. Although the statues, each standing more than 100 feet tall, were too large for purchase, their fate posed uncomfortable questions for source country nationalists and archaeologists. What happens when a country's government decides to eliminate rather than retain its cultural heritage? In such a case, wouldn't leaving objects in their archaeological sites threaten their existence? International trade, by contrast, would bring artifacts to safe harbor in private collections and museums.

"The market gives objects value," contends noted New York collector Shelby White. "Like we saw at Bamiyan, source countries often destroy temples for political or religious reasons. Other times, they simply use ancient columns and pillars for new construction. Then you have cases where common people who find antiquities often melt them down for the gold, or simply throw them away. They don't care about the craftsmanship or beauty of the object."

These problems are not confined to rogue nations. For example, China's Three Gorges Dam project, when completed, will submerge countless undiscovered antiquities beneath a 400-mile reservoir. "A stronger market system could have created incentives for Chinese officials to excavate and preserve the objects and sell them," notes Jim Fitzpatrick, a Washington, D.C.-based lawyer who lobbies Congress on behalf of the trade. "When they permanently flood untold numbers of irreplaceable artifacts, how much does China really care about their antiquities?"