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The Editorial of our Winter 2001/Spring 2002 issue.
The art that is featured in this journal comes from around the world. Some pieces may have been made a few decades ago, others in the most distant antiquity. One of the things that all of these works of art have in common is that each was made by a member of a culture other than that of the vast majority of our readers. Another is that most are currently in the possession of a culture other than those in which they were made, mostly Western and mostly museums, private collectors, and art dealers. This represents a vast transference of material culture. Awareness of this fact invariably leads to ethical debate and occasionally to legal wrangling. Who has the right to own this material? Answers range from "no one" to "anyone who has enough money to pay for it."
A highly publicized trial in New York recently concluded with the conviction of a prominent New York art dealer for conspiracy to sell valuable ancient artifacts that had been exported from Egypt in violation of that country's 1983 cultural property legislation. The case was prosecuted under the National Stolen Property Act (NSPA), first enacted in 1934, which states that goods obtained abroad in violation of law in the host nation are considered stolen property once they are brought into the United States. In the case of cultural property, this is conditional on the nation of origin having a clear declaration of national ownership of the type of property in question. Egypt has one of the world's clearest, Egyptian Law 117, which states that all antiquities, discovered or undiscovered, in that country at the time the legislation was enacted are the property of the Egyptian government. Convictions under NSPA are relatively rare because of the burden of proof required to demonstrate that any given object was obtained illegally. In this case the court decided that there was a clear trail of falsified provenance, intentional and temporary alteration of the pieces to deceive customs, and other bad behavior. Other legislation, such as the 1983 Cultural Property Implementation Act, the 1990 Native American Graves Protection and Repatriation Act (NAGPRA), and even U.S. Customs Law (as was the case with the recent U.S. v. An Antique Platter of Gold), is invoked from time to time to protect cultural patrimony. Other Western nations have similar legislation, some more liberal and some more conservative than that of the United States. A pending case in the Netherlands revolves around the seizure in March 2000 of a collection of early Nigerian Terracottas at The European Fine Art Fair (TEFAF) in Maastricht.
Few take joy at the sight of a looted and destroyed burial or archaeological site, and few would condone the theft of sacred artifacts from already marginalized and disenfranchised cultures. In such clear-cut cases it is very easy to take a righteously hard-line stance, but how clear-cut is this issue really?
Exactly whose cultural patrimony is being protected in such litigation? In some cases the question can be thought provoking. I know more people in San Francisco who have a personal and apparently meaningful connection to Egyptian antiquities and spirituality than I ever did in the time I lived in Cairo. There, for the Moslem man on the street, pre-Islamic art is largely about selling admission tickets. Do the current residents of Central America of partially European descent have an utterly undisputed right to the remaining material culture of the societies the Conquistadors destroyed? And doesn't the Catholic church, so ubiquitous in that region, still hold the religious practices that this art represents heretical? Is every man-made object that lies beneath the surface of the earth the province of academically trained Western archaeologists? Interestingly, the Hopewell ceremonial material recovered from the looted General Electric Mound in southwestern Indiana in a legal battle based on the 1979 Archaeological Resources Protection Act (ARPA) was recommended in 1992 for reburial by the Indiana Native American Advisory Council. Despite this recommendation, the conservative Society for American Archaeology advocated its placement in a local museum since "the government spent considerable time and effort recovering [it], and the public anticipates seeing [it] in a museum." (Munson, Jones, and Fry, "General Electric Mound and ARPA: Current Status," SAA Bulletin, 11:3, 1993). Before one mounts a moral high horse in outrage, consideration of issues such as these may be a stimulating exercise.
Art itself is not illegal, although the ownership of it may be questioned on rare occasions by well-intended legislation. Laws exist to prevent abuse, and those that serve this field tend to be drawn along geographical and historical lines, which undoubtedly is the most practical approach. But as the world we live in shrinks and political boundaries soften, should not the artistic heritage of vanished cultures increasingly be the property of mankind? The objects we publish, and which many of our readers collect, serve in a sense as dignified ambassadors from other places and times that awaken us to the diversity of our world and the astonishing differences and similarities of human thought and expression. But even ambassadors need to have their travel documents in order.
Jonathan Fogel