The decision to uphold the validity of an obscure and discredited 1977 Court of Appeal ruling effectively means that anyone wishing to deal in Egyptian antiquities in the US will have to be able to show cast-iron provenances going back to before 1983 for any piece, regardless of its cultural or economic value.
As the nature of antiquities – often dug up after thousands of years – means that firm provenances are rarely possible, the ruling is likely to blight a huge number of transactions.
The controversy arose over the case of leading New York antiquities dealer Frederick Schultz. He has just failed to quash a criminal indictment against him by the United States for conspiring to receive antiquities stolen in Egypt. The trial is set for January 28.
In permitting the case to go to trial, the District Court has rubber-stamped the Justice Department’s claim that Egypt’s 1983 law declaring state ownership of antiquities amounted to a violation of the US National Stolen Property Act when those objects landed on American soil.
The argument is based upon a single and controversial US court ruling in 1977 made by the Court of Appeals in New Orleans that 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 full permission.
Heavy support
Schultz’s lawyers had argued against this 24-year-old case law – and against the ambiguities of Egyptian law in general – backed by the heavy hitting support of Christie’s Inc., the Art Dealers Association of America and the National Association of Dealers in Ancient, Oriental and Primitive Art (NADAOPA), who filed an amicus or “friend of the court” brief opposing the government’s position.
David Bernstein, a New York dealer of Pre-Columbian gold, ceramics and textiles for over 20 years and a member of the NADAOPA, gave a forthright assessment as to why the association had given its support to Schultz. “The McLain ruling is bad law and it is about time it was tested in court. The government has been misusing it for 25 years.”
In bringing the case the government gained the approval of the Archaeological Institute of America, who offered their own amicus brief arguing the importance of preserving objects in their archaeological context. The rights and wrongs of the McClain decision will not form part of Schultz’s trial but, if convicted, he could appeal and take the case to a higher court where the merits of the law could be debated.
The indictment against Schultz claims that objects illegally smuggled to Europe from Egypt 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 Egyptian law.
His co-conspirator has been named as Jonathan Tokeley-Parry, a former British army officer and antiquities restorer sentenced by an English court to a six-year prison term for handling artefacts illegally removed from the site of the ancient necropolis of Saqqara, near Cairo prior to 1994.
Schultz denies any wrongdoing.
Ruling a major blow to US antiquities trade
A court decision to proceed with a case against a member of the trade is expected to deal a major blow to the United States’ antiquities business.
