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The case, due to be heard in January, involves Frederick Schultz, a leading New York antiquities dealer, who has been indicted by the Justice Department on a count of conspiracy to “possess conceal, store, barter, sell and dispose of” Egyptian artefacts “stolen” from Egypt.

If convicted under obscure US case law, it would effectively mean that anyone wishing to deal in Egyptian antiquities would have to be able to show cast-iron provenances going back to before 1983 for any piece. That was the year that Egyptian law changed, making any such cultural find on Egyptian soil the automatic property of the state.

Although this is Egyptian law, a single US court ruling in 1977 means it must be adhered to in the US as well. The ruling was made by the Court of Appeals in New Orleans which upheld the conviction of appraiser Patty McClain for conspiring to transport Pre-Columbian art from Mexico to Texas. It held that cultural property over which a foreign country has declared ownership (including property on private land not yet discovered) may be treated as ‘stolen’ if removed from that country without the state’s permission.

However, the concept is one that has subsequently been discredited in legal circles because the state would have to prove its claim to ownership in order to establish that a crime had taken place.

The current indictment claims that objects illegally smuggled to Europe by a co-conspirator were purchased or accepted on consignment by Schultz, despite the fact that he allegedly knew of their origin. The US government’s case charges that, in an attempt to give the pieces legitimacy, Schultz claimed that the pieces were from established earlier collections, thus circumventing the 1983 law. Schultz denies any wrongdoing.

In a motion to dismiss the indictment, filed by Schultz’s lawyer Linda Imes of the New York law firm Richards, Spears, Kibbe & Orbe on September 20, it was argued that the case should not be heard on two counts.

First, Imes argued that the government used an outdated and controversial legal theory (based on the McClain case) to bring the indictment against Schultz.
“The government has dusted off and resurrected an outdated, flawed and widely discredited legal theory last used more than two decades ago and applied only once in US legal history,” said Imes in her preliminary statement.

Secondly, Imes maintains that a US court should not enforce a foreign law protecting Egyptian heritage – one that is fundamentally incompatible with American cultural laws and legal practices.

Prison term

In the 40-plus-page document, Schultz’s alleged co-conspirator (previously referred in legal documents as Co-Conspirator 1) is named as Jonathan Tokeley-Parry, the former British army officer and antiquities restorer from Devon. In 1997, Tokeley-Parry was sentenced by an English court to a six-year prison term for handling, in the jurisdiction of London, artefacts illegally removed from the site of the ancient necropolis of Saqqara, near Cairo prior to 1994.

Tokeley-Parry, who was released from prison in July 2000, smuggled the antiquities out of Egypt, often disguising them as tacky tourist souvenirs. Insiders believe that Tokeley-Parry is the main source of evidence in the case against Schultz.
New York Southern District Court Judge Jed Rakoff has set a provisional date for the trial of January 22.

• The debate over firm written provenances for antiquities was at the heart of last year’s investigations into the stolen art market by both the Culture Select Committee in the House of Commons and the Panel of Experts appointed by Arts Minister Alan Howarth.

Both concluded that while such provenances would be desirable they were not always practicable. Antiquities dealer James Ede, who chairs the Antiquities Dealers Association, gave evidence to the committee, explaining that the very nature of antiquities – dug up often after thousands of years – meant that firm provenance was rarely possible as their origins were uncertain.