Ancient Treasures for Sale

Do antique dealers preserve the past or steal it?

Steven Vincent from the April 2005 issue

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But if market supporters felt the destruction of the Bamiyan Buddhas and the Three Gorges Dam had finally given the trade the moral high ground, their victory was short-lived. In July 2001 federal prosecutors accused a prominent antiquities dealer of handling objects that a confederate had smuggled from Egypt. For the trade, this was a catastrophe. Because the government based the indictment largely on McClain, a conviction in the case risked confirmation of that notorious ruling by the U.S. Court of Appeals for the 2nd Circuit, which has jurisdiction over the New York art market. Not only that, but the indicted dealer was none other than Frederick Schultz.

Schultz's trial, held in February 2002, was a veritable how-to guide for smuggling ancient artifacts. The star witness against the dealer was the former British cavalry officer and master antiquities restorer Jonathan Tokeley-Parry. According to Tokeley-Parry's testimony, from 1990 to 1994 he purchased numerous items, including statuary, from Egyptian "farmers and builders," used his restoration skills to disguise them as tourist tchotchkes, and spirited them out of the country.

His actions violated Egyptian Law 117, which states that any antiquities found within the country's borders are state-owned and thus cannot be exported or sold. Tokeley-Parry (who evidently turned against Schultz in order to shorten a prison sentence in England involving other smuggled Egyptian antiquities) testified that Schultz sold these and other illegally acquired objects to Western collectors, claiming they originated from the fictitious "Allcock Collection," supposedly begun in the 1920s.

Buy an Antique, Hire a Lawyer

In response, Schultz portrayed himself as an innocent associate of Tokeley-Parry, hounded by overzealous prosecutors. Egypt itself had made no claim for the objects the Englishman had taken out of the country, the dealer argued. Furthermore, Egypt had never requested import restrictions as required by the CPIA. The only justification the U.S. government had in declaring Tokeley-Parry's objects as "stolen property" was Law 117. And the only reason it could use foreign law to accuse Schultz of a crime was the McClain ruling. "If the court agrees that Congress intended the CPIA to set our country's policies toward antiquities, then Fred has a good chance of acquittal," a lawyer supporting Schultz told me at the time. "If the court decides to apply McClain, he could be in trouble."

U.S. District Judge Jed Rakoff applied McClain. Ruling that the CPIA and McClain were not mutually exclusive, he upheld the government's contention that under U.S. law Tokeley-Parry stole objects from Egypt; prosecutors then worked to prove that Schultz knowingly handled these pilfered artifacts. After a brief deliberation, the jury found the dealer guilty of a single charge of conspiring to handle stolen property. In June 2002 Rakoff sentenced him to 33 months in prison and a $50,000 fine.

For the anti-trade camp, this was Wellington at Waterloo. A highly respected dealer had been convicted for his involvement in a smuggling operation, proving beyond a doubt the link between the antiquities trade and looting. Moreover, Schultz's conviction affirmed McClain in the 2nd Circuit, the heart of the antiquities trade. "McClain is now established in the 5th, 2nd, and 9th circuits," notes Patty Gerstenblith, a DePaul University law professor and former president of the Archaeological Institute of America. "I don't think market people recognize what an important legal development this is. They're in denial."

Not all of them. "The fact that the 2nd Circuit upheld McClain is huge, no doubt about it," agrees Fitzpatrick, the Washington lawyer. "But how far will prosecutors take it? Does this mean that anyone who purchases an antiquity in the U.S. has to hire a lawyer first, to make sure the purchase doesn't violate a foreign country's patrimony laws? What's the state of these laws around the world? Which ones apply, which ones don't?" Fitz Gibbon, the Santa Fe dealer, says, "I fear the government is gearing up for more prosecutions, using McClain and the NSPA. Where will it end? This will only be settled by some huge court case involving a museum collection, I'm afraid."

Schultz's conviction did not bring a truce to the cultural patrimony wars. The bitterness continues, with archaeologists and the trade each rallying around a new cause c�l�bre. For the archaeologists, it is the purchase last fall by the Cleveland Museum of a bronze statue of Apollo, between 1,700 and 2,400 years old. The object's documentation dates back to an East German lawyer who claims to have discovered it on his family estate in the 1990s. "This is just simply not a convincing provenance," contends Malcolm Bell, a professor of art history at the University of Virginia and a vice president of the Archaeological Institute of America.

Worse, the museum purchased the work from Phoenix Ancient Art, a business headquartered in Geneva, Switzerland, owned by brothers Ali and Hicham Aboutaam. Last year an Egyptian court sentenced Ali in absentia to 15 years in prison for smuggling; last June, Hicham pleaded guilty in New York to a federal charge of falsified documents pertaining to an ancient silver vessel that the Phoenix Gallery sold for $950,000. "How, in this day and age, can a respectable museum do this?" demands Lord Renfrew. "Doesn't the American taxpayer realize they are subsidizing the purchase of items like these through government support of museums? I find it curious there is not more outrage."

As for the trade, its members are currently preparing to do battle over a CPIA request submitted last May by the People's Republic of China asking for restrictions on an array of objects, including nonarchaeological works like calligraphy and paintings dating from as recently as 1912. Says the New York�based Asian dealer James Lally, "I fear that these import restrictions are so broad they may inhibit the legitimate trade in Chinese material and chill the honorable practice of collecting."

In the past, dealers note, the Chinese government did not want to shame itself by seeking U.S. help to curb its looting problem, relying instead on Chinese collectors to buy back the nation's cultural patrimony. So why make a request now?

One theory posits that a new and more nationalistic director of the State Bureau of Cultural Relics has pushed for these restrictions. Others believe it's part of a quid pro quo: China cracks down on pirated CDs, and we close off our shores to Chinese material, helping to boost China's domestic market for antiquities. Or perhaps, as the dean of Chinese dealers, Robert Elsworth, suggests, "Instead of letting construction projects like the Three Gorges Dam destroy objects, China may simply let looters take them out of the country, then use U.S. Customs officials to intercept and return them back to China." In keeping with the secrecy surrounding these petitions, a State Department spokesman says officials are reviewing China's request and have yet to schedule private or public meetings on the issue.

Hidden Objects

No resolution to this conflict is in sight. Changes have certainly occurred, though. Take Iraq. So far, few objects looted from the war-torn country have appeared on the market. "Five years ago, you would have seen Iraqi objects up and down Madison Avenue," comments DePaul's Gerstenblith. "Our efforts have proven successful in that area." (Others argue that thieves simply have filled up warehouses with pilfered Iraqi antiquities, waiting for the statute of limitations to expire.)

Has the rate of worldwide looting actually diminished? "I don't think so," says collector White. "Objects are going elsewhere--to Japan and Europe and the Middle East. All we've done is make public and private collections more vulnerable to claims from foreign countries. At the same time, we've made it harder for Americans to see the glories of the past."�