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We Can’t Stop Being Surprised by Classical Statues in Color

CCP contributor Mariam Hale asks why.

November 19, 2017.   The November 2017 opening in San Francisco of a world-traveling exhibition, an updated version of the 2003 Munich Glyptotek’s Bunte Götter or Gods in Color, was a shock to the senses of museum viewers. The original Glyptotek show was the first major public exhibition of recreations of classical statues in their original colors. Greek and Roman artists did not consider their sculptures complete until they had been brilliantly painted. The ancient Greeks would have found the stark white marble sculptures displayed in our museums as disturbing as these paint and plaster reproductions are to modern audiences.

Reconstruction of the so-called Chios kore from the Akropolis in Athens, 2012. Copy of the original: Athens, ca. 500 BC. Crystalline acrylic glass, with applied pigments in tempera. Liebieghaus Skulpturensammlung, Polychromy Research Project, Frankfurt am Main, acquired 2016 as gift from U. Koch-Brinkmann and V. Brinkmann.

Innovative techniques pioneered by Vincenz and Ulricke Brinkmann, along with an international team of researchers, revealed the original condition of once-painted sculptures that have long since worn down to bare marble. Analysis detected not just remnants of pigment on statues, but traces of decorative patterns on their surfaces. The researchers’ findings allowed them to create a series of colored reproductions of ancient statues, in strict compliance with the evidence they found.

The lurid colors and psychedelic patterns of the clothing and lifelike flesh of the reproductions are a far cry from the calm, cool white marble we associate with classical art. Museum visitors, curators, and art historians alike were astonished by what they saw in Munich. And they have continued to be astonished. For more than thirteen years, variations on the exhibition have toured the world, and met with shock and awe at every location, from the Vatican to Athens, and from Istanbul to Madrid.

This autumn, the exhibition opened at the Legion of Honor in San Francisco. Max Hollein, curator of the exhibition, anticipates that attendees will be “shocked and startled” by the sight of Greek and Roman statues sporting their original colors and patterns. Judging by the precedent set by earlier exhibitions, he is probably right.

Yet the fact that Classical statuary were colorfully painted ought not to be so surprising. For centuries, scholars have known that the Greeks and Romans always finished their magnificent carvings with a layer of brilliant color. In 2008, Smithsonian Magazine published an article on the Brinkmanns’ work, and pointed out that the true nature of classical statuary has been an open secret for centuries.

In 1869, Victorian painter Lawrence Alma-Tadema’s depicted the famous marble frieze as it might once have been, fully colored in deep reds and ochres, in his work Phidias and the Frieze of the Parthenon. His contemporary, sculptor John Gibson, produced a Tinted Venus (1850-51), which emulated the coloring practices of the ancient Greeks.

Long before new scientific techniques could be brought to bear upon surviving statuary, it was possible to observe remnants of pigmentation on some of the more porous pieces of surviving statuary. Depictions of painters applying color to statues appear on Greek pottery. Written evidence for the practice also existed, notably in Eurypides’ play, Helen of Troy, in which the title lady laments, “If only I could shed my beauty and assume an uglier aspect/The way you would wipe color off a statue.”

Despite the long-standing and widely accepted evidence to the contrary, our conception of classical art remains monochromatic. This persistent misconception, as well as the surprise with which the painted reproductions are constantly greeted, are understandable.

The vast majority of classical art in museums is blank stone. There are exceptions: the aforementioned porous works in soft stone or pottery with patches of surviving color, and other pieces in bronze, or colored marble and granite. Yet overall, white predominates in our halls of classical statuary, in our textbooks and our films.

Lawrence Alma-Tadema, Phidias Showing the Frieze of the Parthenon to his Friends, 1868, Birmingham Museum, UK. The Painting shows at left the North frieze slab XLVII and the West frieze Slabs I and up visible at right. [1] Among the spectators, critics have identified Pericles, the bearded man facing Phidias. Next to him is his mistress, Aspasia. In the foreground stands a boy, Alcibiades, with his lover, Socrates.

When ancient sculptures were first excavated in fifteenth century Rome, they emerged from the earth largely stripped of their original colors. The great artists of the Renaissance, and all subsequent generations, took these white stone remnants for their models of the artistic ideal, and produced their masterpieces in snowy marble. Neoclassical architecture, too, restricted itself to the use of white marble (or imitations of the same in brick and plaster).

Early modern scholarship contributed to this image of Greek and Roman art as stark and colorless. Johann Winkelmann, an eighteenth century scholar widely considered one of the founding fathers of modern art history, adhered to a view of classical art, and Ancient Mediterranean culture in general, that was largely defined by its pure, unmodulated whiteness. The whiteness of their marble was associated with the intellectualism of the Ancient Greeks and the supposed civic virtue of the Romans.

Today, however much we may respect the achievements of Greek and Roman culture, we do not venerate them as we once did. Historians and archaeologists have developed a more complicated and nuanced vision of the Classical world. Yet our conception of Classical art remains monochromatic. The persistence of our sixteenth-century conception of ancient sculpture in the twenty-first century exemplifies the power of the visual to overwhelm the merely conceptual. We may know that ancient sculpture was colorful, but we do not envision it so. We envision classical art as white, because it is in that form that we invariably encounter it.

Reconstruction B of Athena, 2005. Original: Greek, Aegina, ca. 480 BC; Glyptothek Munich. Copy: Plaster cast with natural pigments in egg tempera, 67 in. (170 cm) height. Liebieghaus Sculpture Collection (Polychromy Research Project), Frankfurt.

The example of the Gods in Color exhibition is a potent reminder of the essential role of museums in the artistic and historical education of the public. It is not enough, apparently, to be told that ancient statuary was in color, to accept the fact. We need to be confronted with material examples, before the idea can sink in.

Personal encounters with material objects are of primary importance in the formation of our understanding of any art form. In order to truly accept that a particular culture or religion produced artworks of extraordinary beauty; we must see them, and know them for ourselves. Without public museums to present us with real samples of art from around the world, we cannot learn to appreciate the true diversity and wonder of global cultures throughout history.

Gods in Color: Polychromy in the Ancient World, Palace of the Legion of Honor, San Francisco, CA, October 28, 2017 – January 7, 2018

Reconstruction B of a Trojan archer, 2005. Original: Greece, Aegina, ca. 480 BC; Glyptothek Munich. Copy: synthetic marble cast with natural pigments in egg tempera, lead, and wood, 37. in. (96 cm) height. Liebieghaus Sculpture Collection (Polychromy Research Project), Frankfurt, on loan from the University of Heidelberg.

Pakistan National Museum Throws Gandharan Buddhist Statues in Trash

November 18, 2017.  “For the last many months I have seen these sculptures lying in the garbage.” National Museum employee.

The fate of ancient Buddhist artifacts in Pakistan’s museums once again made headlines in Pakistan after Gandharan period stone statues were discovered in a rubbish pile, visible from the street, at the National Museum in Karachi, Pakistan. Said to be from the Gandhara civilization about 1,500 years ago, the statues have traveled from their former place of worship, to recovery from a Pakistani smuggling ring in 2012 in Awami Colony in the Korangi sector of Karachi, to the trash heap at the National Museum.  Two of the five statues were used to decorate the doorway of the antiquities director-general’s personal office, the others were tossed into a rubbish heap outside.  There was no information on what happened to the other 390 “rare objects” recovered in the Awami Colony raid.

There is no record of the fate of the other 390 “rare objects.”

The museum left the sculptures in the trash heap despite thinking that the works were authentic. It simply did not bother to care for them. Stated National Museum director Mohammad Shah, “We believe this sculpture dates back 1,500 years and it will be given an original look when we wash it.”

The five Buddhas, ranging between three and four feet in height, are made of black schist stone.  Questioned by Hafeez Tunio in The Express Tribune, the director, Mohammad Shah, said “We have put these sculptures over there ourselves.” He claimed that they were naturally protected from the elements by the black schist stone they were constructed from.

Tunio writes:

Unfortunately, these sculptures are facing the same fate as hundreds of other artefacts and dozens of archaeological and heritage sites, which are in an absolute shambles due to the archaeology and antiquities departments’ neglect.”

According to an employee at the National Museum in Karachi, who requested anonymity, the treatment of the Buddhist statues highlights the general neglect and abuse of antiquities and cultural heritage sites rampant under the archeology and antiquities departments of Pakistan. Not only the Buddhist statues, but many other artifacts have been neglected through improper storage methods. The employee elaborated, “no one has looked after them for years and many are now rusted and stained. I cannot tell you how pitiful the condition of the rare objects inside the museum is.”

It seems that the items in this case were lucky even to make it to the museum’s garbage pile. Other seized antiquities from 2012 were smashed while in police custody. There, according to the Express Tribune, sweating laborers argued whether the items were Hindu or Buddhist, ignoring the fact that their rough handling was breaking them:

“The work, which began at about 8am turned the Awami Colony police station into a mangled museum of Gandhara art of over 30 pieces. “We’ll open a museum right here,” joked one of the police officers. “Here, you want to take one home?””

Trash heap with Gandharan Buddhist statues. PHOTO: ATHAR KHAN/EXPRESS, https://tribune.com.pk/story/1560429/1-1500-year-old-statues-left-trash-national-museum/

A Committee for Cultural Policy article, The Dolorous Case of Pakistan’s Museums, April 8, 2016, noted that:

Despite the hard work of a small number of dedicated academics and archeologists, museums and ancient monuments in Pakistan are generally as moribund as cemeteries for art and artifacts. Pakistan’s cultural institutions have also been victims of the cupidity of several generations of corrupt officialdom. In March 2016, the anti-corruption department in Peshawar announced that it was launching an investigation into the replacement of original sculptures and coins from the Peshawar Museum by fakes.”

However, as CCP stated earlier, the 2016 investigation was too little, far too late, as  visiting foreign experts have long held that a good portion of the important Buddhist sculptures in the Peshawar museum had already been replaced by fakes in the 1970s and 1980s.

Neglect within Pakistan’s government museums is an even greater concern than lack of inventory and rampant theft. has losses of artifacts from museums in Pakistan. In July 2015, artifacts from the Moenjodaro and Mehergarh civilisations at the archaeology department in Karachi were dumped into open boxes awaiting transport to the National Museum. According to Pakistan national newspaper Dawn, archaeologists were alarmed by the abrupt transfer of archaeological collections and a valuable library of rare books to the National Museum:

“There were boxes lying on the dusty floor. It looked like as if someone had packed them in haste. If there were artefacts in the cartons in which products of daily use are normally kept, it’s a terrible mistake because experts believe that the department is in possession of objet d’art and other articles dating back to ancient times.

The boxes were lying in the middle of a large room that looked like a badly kept library. It is not. The books are no less valuable than the artefacts. According to the person who was at the branch at the time and did not wish to be named, the books belonged to the federal government. In one corner, one could see broken pieces of pottery. It seems they are part of the materials found by local and foreign archaeologists over the course of their excavations and got damaged while being removed to be transferred to another site.”

Despite years – even decades – of past promises to reform, Pakistan’s government appears to lack any commitment to preserve and defend its archaeological resources, or to support the work of Pakistani and foreign archeologists in the country.

https://tribune.com.pk/story/1560429/1-1500-year-old-statues-left-trash-national-museum/

2017 STOP Act Would Overturn Federal Policies on Indian Art

November 16, 2017.   Will Senate Criminalize Export, Rollback Private Property Protections for Collectors and Museums?

On November 8, 2017, three organizations representing the interests of collectors, the art trade, and museums gave written testimony to a hearing at the Senate Committee for Indian Affairs. The Safeguard Tribal Objects of Patrimony Act of 2017, or STOP Act (S. 1400, HR 3211) would affect thousands of collectors of American Indian art, Indian artisans, and businesses throughout the Southwest.

ATADA, the Committee for Cultural Policy, and Global Heritage Alliance provided critical perspectives on the bill, which threatens the trade in Native American art, and will hamper museums in their efforts to protect and share Native art and culture. If passed, STOP would impose broad restrictions on the circulation of tribal art and fundamentally alter Congress’ past support for private and public collecting.

While supporting respect for tribal patrimony, restoring communally owned, inalienable objects to tribes, and protecting archaeological sites from looting, the three organizations argued that the STOP Act will not achieve these goals. The Act is harmful to both tribes and Southwestern states and unconstitutionally fails to give notice of what would be illegal to export.

Although the legislation was triggered by French auctions of tribal artifacts, no proponent of STOP has shown how it would change the operation of French law. France is currently a market center for international tribal art from nations in Africa, Asia, and South America that already have export laws. Paris annually hosts the largest tribal art fair and market in the world, the Parcours des Mondes.

How Would a Person Know When They Were Breaking the Law?

Lack of notice to US citizens of what would violate the law and trigger a 10-year penalty was a key issue for Senate Committee members. Although Senate Indian Affairs Committee Chairman John Hoeven of North Dakota asked, if information on what is sacred and inalienable is secret, how would a person know when they were breaking the law, the question went unanswered.

Acoma Governor Kurt Riley’s testimony to the Senate Committee acknowledged that the law would forbid the export of undisclosed items stating: “The types of cultural items the Pueblo is attempting to protect are difficult to fully describe and publicly identify,” but later asserted NAGPRA makes clear what is covered. (NAGPRA does not actually identify what is inalienable or what is sacred, and after 27 years, there is still no standard for museums to follow under NAGPRA.) Governor Riley also stated that if in doubt, collectors could contact tribes. However, many, including Acoma, do not release information on what is sacred, or which items are inalienable from the community.

Key Issues

The three organizations raised the following concerns with the STOP Act:

  • The STOP Act is redundant. “Trafficking” in violation of NAGPRA or ARPA is unlawful, and 18 U.S.C. § 554 already prohibits export from the United States of any object contrary to any law or regulation of the United States.
  • The STOP Act discourages ALL Indian art sales, including contemporary jewelry, ceramics, etc. It states that it is official U.S. government policy to return ALL “items affiliated with a Native American culture.”
  • The STOP Act fails to explicitly place the burden of proof on the federal government, giving Customs broad discretion which in the past has led to due process abuses.
  • The STOP Act imposes 10 years’ jail time for violations of less than $1 value.
  • The STOP Act could destroy the value of Americans’ private property, threatening the collections of America’s museums and the commercial viability of businesses and Native American artisans.
  • The STOP Act federalizes ATADA’s Voluntary Returns Program, discouraging participation, and creating a “Trojan Horse” bureaucracy, including Department of Justice and Homeland Security.
  • ATADA’s Voluntary Returns Program is a better, more effective model, and has returned dozens of important ceremonial items already in its first year.

The STOP Act Seeks Return of All Objects to Tribes and Would Remove Protections for Private and Public Collections

The plain language of STOP makes it federal policy to encourage voluntary return of all “items affiliated with a Native American culture” to their origin tribes. Such a federal policy would severely damage the entire legitimate trade in Native American art: from legally excavated or sold historic objects to commercially produced jewelry, pottery, and textiles made by tribal artists.

Furthermore, the STOP Act would undermine Congress’ intent to preserve private collections under ARPA. As the Committee for Cultural Policy noted, ARPA’s purpose is also to: “foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals having collections of archaeological resources and data which were obtained before October 31, 1979.” (16 U.S.C. § 470aa(b))

The federalized ‘voluntary’ returns program amounts to a clean sweep of the nation’s collections of tribal art, deterring buyers from purchasing objects, private collectors from donating their art to museums, and public museums from adding to or even retaining their current holdings.

STOP is Bad for Regional Economies

Many Southwestern US states rely upon cultural tourism, just as many of the tribes do; almost ten percent of New Mexico’s economy and employment derives from cultural tourism, much of it focused on the state’s Native culture and history. The STOP Act threatens to end this significant component of American life.

Success from Community Education and an Independent Voluntary Returns Program

In the last year alone, ATADA’s successful voluntary, non-governmental returns program has arranged the return of dozens of sacred objects to tribes. ATADA urged the Senate Committee to encourage voluntary returns by directly involving tribal offices and enabling donors to take deductions for gifts.

Is STOP Unconstitutional?

A law that prohibits export of certain items must define what those items are, or be found constitutionally deficient. The 567 tribes in the United States are not homogeneous in their cultural perspectives. What may be profoundly sacred to one tribe may be a utilitarian object to another. Furthermore, many tribal representatives hold that the nature of sacred objects must be kept secret even within tribes. Only tribal religious or cultural authorities are considered qualified to determine the status of a particular object.

Global Heritage Alliance said the STOP Act will encourage Customs to shift the burden of proof on to the exporter to demonstrate that the property was lawfully removed from federal or Indian lands. Under STOP, the government would require owners to prove their objects were not ‘stolen,’ which is no easy matter when objects have circulated for decades among many hands.

ATADA, CCP and GHA agreed that if the STOP Act is passed, it should be revised to eliminate constitutional abuses, return only what truly needs returning, and continue existing federal policy that protects museum, private collections and the public interest.

Polychrome Pictorial Jar Reyes Galvan Aguilar (probably) (United States, New Mexico, Zia Pueblo, 1860-1934) United States, Arizona, Hopi Pueblos, Hopi, circa 1900 Furnishings; Serviceware Earthenware and pigments Height: 6 3/4 in. (17.15 cm); Diameter: 11 in. (27.94 cm) Gift of Camilla Chandler Frost (M.2009.166.2) Los Angeles County Museum of Art

 

100 Years of Negotiation Don’t Quite Bring Library Home

November 12, 2017.  RUSSIA WILL KEEP JEWISH COLLECTOR’S LIBRARY, BUT PERMIT DIGITIZATION

When Russian Zionists bought Baron David Günzburg’s collection of 2,000 manuscripts and 14,000 books from his widow in 1917, they had no idea it would take one hundred years for the collection to come close to residing in a Jewish academic institution, in accordance with the Baron’s wish.

Three generations of the Günzburg family assembled the collection: Joseph Günzburg (1812-1878), his son Horace (1833-1909), and most significantly, Horace’s son, Baron David Günzburg (1857-1910). Baron David Günzburg was an Orientalist and Jewish community leader. His wide-ranging interests in Judaic studies, philology, medieval Arabic poetry, and Hebrew literature inspired him to develop the library into “one of the largest and most important private collections in the world”. 

After David Günzburg’s death in 1910, the Jewish Theological Seminary (JTS) of America in New York City was the first to negotiate to buy the collection from his widow. Unfortunately, the outbreak of World War I prevented the seminary’s representative from making the journey to St. Petersburg to retrieve the library.

In 1917 a group of Russian Zionists (the group’s official designation is not stated) signed an agreement with Günzburg’s widow to buy the collection for the Jewish public library in Jerusalem. The onset of Russian Revolution once more kept the purchasers from traveling to the country to secure the library.

Around 1920 the Soviet government appropriated the Günzburg collection, moving it to the State Library in Moscow, where it has since remained. Many people, including Albert Einstein, have tried over the years to convince Russia to honor the Russian Zionists’ purchase agreement. Nevertheless, the Soviet Government refused to recognize the purchase agreement or to consent to the library’s removal.

Baron David Günzburg.

Finally, in on November 7, 2017, Russia and Israel signed an agreement for Günzburg’s extraordinary collection to be digitized. The physical collection will remain in the Russian State Library in Moscow, but the digital copies will be shared with the National Library of Israel in Jerusalem. Russian billionaire Ziyavudin Magomedov’s Peri Foundation made a gift in an undisclosed amount to fund the project.

Relations have warmed between Russia and Israel since the elections of Russian President Vladimir Putin and Israeli Prime Minister Benjamin Netanyahu. Putin’s alleged pro-Israeli perspective and Netanyahu’s personal intervention urging digitalization of the collection are said to have facilitated a belated agreement between the Russian State Library in Moscow and National Library of Israel in Jerusalem. Once it is digitized, the collection will be accessible online at the National Library of Israel’s digital manuscript archive, the “Ktiv” project, launched earlier in 2017.

The collection includes a remarkable range of documents, from Aristotelian treatises to mystical works of Kabbalah. Rare and as-yet unpublished manuscripts, including Talmudic commentaries, responsa to Jewish religious law (Halakha), and an almost unknown commentary on Ptolemy’s Almagest, will make the collection an invaluable resource for researchers in many branches of history, not only Judaic studies.

Although the physical collection of books and manuscripts will remain in Moscow, the spirit of David Günzburg’s intention to have the collection in a Jewish academic institution will be fulfilled through its digitization. Some in Israel’s government have not yet given up hope of securing the physical collection itself. However, the head of Israel’s National Library collections, Aviad Stollman, says that for now, “we’re putting aside the question of ownership and looking forward.”

Baron Horace Günzburg, father of David Günzburg. By Unknown photographer (www.megabook.ru) [Public domain], via Wikimedia Commons

Coat of arms of Baron Günzburg on bookplate.

CCP Testimony to Senate Indian Affairs on STOP Act – S. 1400

Committee for Cultural Policy[i], Written Testimony submitted to U.S. Senate Committee on Indian Affairs, on the Safeguard Tribal Objects of Patrimony Act of 2017 S.1400 (STOP Act) S. 1400, November 8, 2017

Mr. Chairman, my name is Kate Fitz Gibbon and I am the Executive Director of the Committee for Cultural Policy, a non-profit organization dedicated to educating the American public and urging an open discourse as the foundation of a balanced cultural policy in the US. The Committee for Cultural Policy supports museums and the museum mission to preserve, research, and display art and artifacts for the public benefit. We support the lawful circulation of art and artifacts, as Congress did in enacting the 1983 Convention of Cultural Property Act and the 1979 Archaeological Resources Protection Act (ARPA).

The Committee for Cultural Policy (CCP) has identified a number of key concerns with the STOP Act:

  • The STOP Act will discourage collecting and trade of lawfully owned Native American objects, undermine cultural tourism, which is an economic mainstay of several Western states, and create legal uncertainties for the hundreds of thousands of Americans who have collected Native American art and artifacts for generations.
  • The STOP Act fails to define the difference between ceremonial and non-ceremonial objects, and it leaves the definition of “Native American cultural objects” subject to export prohibitions open to new tribal interpretation for each Native American object seeking export. The knowledge of what is communally owned and inalienable is privileged information, and may be known only to initiates within each tribe.
  • The Stop Act would violate the individual right to due process under the Fifth Amendment by making it illegal to export certain items without giving the individual proper notice of what items are illegal to export.
  • The STOP Act is unnecessary because ‘trafficking” in violation of NAGPRA or ARPA is already unlawful, and 18 U.S.C. § 554 already prohibits export from the United States of any object contrary to any law or regulation of the United States, and imposes ten years’ jail time for a first offense.
  • The STOP Act establishes as official U.S. government policy the return of all items affiliated with a Native American Culture” to the tribes, which would include millions of objects currently in lawful circulation in the US, and millions more in American museums.

We have highlighted the following issues in the STOP Act that are of particular interest to American museums and the collectors that support them.

  1. The STOP Act makes it federal policy to encourage the return of all Native American-affiliated objects to tribes. This could damage cultural tourism, particularly in the West, eliminate a major form of art collecting and art appreciation, and destroy hobbyist activities that are legal, educational and give pleasure to hundreds of thousands of Americans.  `

The STOP Act’s federal returns program is based on a new and dangerous federal policy to encourage the return of all Native American-affiliated items to tribes, even when ownership and trade in such objects is perfectly legal. STOP Act fails to address what the repercussions will be for “collectors, dealers, and other individuals and non-Federal organizations that hold such heritage” who do not to engage in the returns program and attempt to sell or donate these legally-owned objects to a museum or other organization.

The “tangible cultural heritage” protected by the STOP Act’s returns policy extends beyond any individual’s reasonable expectations because this policy seeks to curb the trade of any “culturally, historically, or archaeologically significant objects, resources, patrimony, or other items that are affiliated with a Native American culture,”[ii] regardless of an object’s legal title, cultural significance, economic value, or even the tribes’ desire to have the object returned. Is the STOP Act truly seeking to have every miniscule potsherd and arrowhead returned to Native American tribes? Every Native American ceramic pot, rug or bracelet?

To give just one example of the type of legal material affected by this provision of the STOP Act, the prohibition against trafficking in archeological resources in ARPA specifically excludes arrowheads found on the surface of the ground. President Jimmy Carter was just one of thousands of American hobbyists who have collected arrowheads legally since they were children. There are now hundreds of hobbyist groups of arrowhead collectors, with hundreds of thousands of members, who like President Carter, are enthusiastic collectors of arrowheads. These clubs may be found in every state in the U.S.

The adverse effects of the STOP Act’s “voluntary” returns program and Tribal Working Group will affect not only private dealers and collectors, and private individuals, but also the Native American artisans who rely on the sale of their artworks to support their livelihood. Is that truly the outcome that the STOP Act seeks to achieve?

  1. The creation of a federal policy that encourages the return of all Native American-affiliated objects to tribes could deprive legally owned objects of their fair market value, amounting to a regulatory taking.

The STOP Act’s adoption of a federalized return policy applying to all Native American affiliated objects policy will likely result in an insidious regulatory taking by destroying the value of American private property and threatening the collections of America’s citizens, museums and cultural institutions, as well as the viability of many businesses and Native American artisans.

Supreme Court precedent recognizes two forms of takings for Fifth Amendment purposes: First, where the government requires permanent physical invasion of individual’s private property, however minor, there must be just compensation.[iii] Second, and more relevant to the STOP Act’s dangerous effects, is where regulations completely deprive an owner of “all economically beneficial us[e]” of his or her property.[iv]

In the seminal case on government takings, Penn Central Transp. Co. v. New York City, the Supreme Court outlined three main factors to determine whether there has been a taking within the scope of the Fifth Amendment: (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation interferes with investment-backed expectations and (3) the character of the government action.[v]

Later, in Lingle v. Chevron, the Court applied the Penn Central and other ‘takings’ jurisprudence to conclude that any taking inquiry “turns in large part. . . upon the magnitude of the regulation’s economic impact and the degree to which it interferes with legitimate property interests.”[vi]

There is no disputing that individuals, ranging from private collectors to tribal artisans have legitimate private property interests in these objects. No regulations at the time of acquisition of this property would put the individual on actual or constructive notice that these objects would be subject to such broad oversight.[vii] Thus, their investment-backed expectations would reasonably include the rights to buy, sell, and possess the item so long as the object was not illegally acquired in contravention of state or federal law, such as ARPA and NAGPRA. These are some of the most fundamental “sticks” that form legitimate property interests under United States law.

The impact on the economic value of these objects is both predictable and deleterious. The proposed federal voluntary returns policy fails to address what the repercussions will be for the individuals who do not to engage in the voluntary returns program and attempt to sell their property or even donate it to a museum or other organization. Instead, this policy creates a stigma on objects and individuals who do not comply with this “voluntary” returns program — a stigma that can completely diminish the market value of that object, denying the property owner of the right to earn a “reasonable return” on his or her property.[viii]

The STOP Act’s institution of a Tribal Working Group to provide recommendations regarding “the return on tangible cultural heritage by collectors, dealers, and other individuals and non-Federal organizations”[ix] is further problematic. The Act creates an oversight group that is not limited to recommending the return of illegally removed or trafficked objects in violation of federal law. Rather, the Act delegates to this Tribal Working Group the right and responsibility to recommend the return of any and all legally owned objects, regardless of whether those objects were part of the voluntary returns program. Collectors, museums, dealers, hobbyist groups, etc. have no voice.

How else will this Tribal Working Group find out about objects owned by collectors, dealers, and other private individuals, except by closely supervising the trade of Native American-affiliated items? Not only is this an exceptionally overbroad delegation of power, it will also contribute to a stagnation in the trade of Native American objects, as individuals will no longer be able to trade in these objects without constant fear that the Tribal Working Group may intercede and recommend the object be returned.

With such power granted to this Tribal Working Group, Native American-affiliated objects will likely become unsellable, as individuals and institutions will likely refuse to purchase or accept these objects because of the stigma now attached to these otherwise lawfully-owned objects.  Such an adverse economic impact would eventually amount to a regulatory taking because the policy will deprive numerous collectors, dealers, and individuals of the fair market value of their property without any just compensation.

  1. The STOP Act’s Returns Program’s Policy Also Contradicts ARPA’s Intention That Private Collections Remain a Resource for Preservation and Study of Native American Culture

While the intentions of the STOP Act’s voluntary returns program are understandable—even admirable—the policy directly contravenes the very policies of ARPA and NAGPRA, which undergird the STOP Act itself. This policy acknowledges that American tribes do not have a superior right to all Native American-affiliated objects, simply because these are Native American in origin. Our country has had a long history of protecting private property rights. Native American art and artifacts collected by American citizens have long been interpreted as private property, and our constitution requires that certain due process requirements be met before they are taken away.

Art traders and the collecting community have been accused in the media of exploiting Indian culture, especially in light of the 2015 auction sales in Paris of sacred masks and statues belonging to the Native American Hopi tribe. The major Native American art trade organization ATADA has adopted bylaws forbidding trade in items in current ceremonial use,[x] established due diligence guidelines to protect buyers and sellers,[xi] and initiated public education programs[xii] as well as a truly voluntary returns program that has brought dozens of important ceremonial items back to tribes in the last year.[xiii]

But it should be remembered that the vast majority of the trade in Indian artifacts – virtually all the trade in current market –  is completely legal, and that Congress deliberately excluded pre-existing privately held collections of artifacts from ARPA’s prohibitions on trafficking, in part because they formed a valuable resource for academic study. ARPA’s Findings and Purpose states:

“The purpose of this chapter is to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites which are on public lands and Indian lands, and to foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals having collections of archaeological resources and data which were obtained before October 31, 1979.”[xiv]

ARPA’s legislative history reinforces this policy:

“The Committee is concerned that greater efforts must be undertaken by the Secretary and professional archaeologists to involve to the fullest extent possible non-professional individuals with existing collections or with an interest in archaeology. The potential benefit of this increased cooperation is enormous; there is a wealth of archaeological information in the hands of private individuals that could greatly expand the archaeological data base on this country.”[xv]

Only objects excavated subsequent to 1979 or unlawfully possessed prior to 1979 are impacted by ARPA. Congress expressly intended private collections to serve as open resources:

Nothing in subsection (b)(1) of this section shall be deemed applicable to any person with respect to an archaeological resource which was in the lawful possession of such person prior to October 31,1979.”[xvi]

As applied in Section 4(a) of the STOP Act, the implementation of a voluntary returns program of all Native American-affiliated objects supports a blanket federal policy to completely end the trade, collection, preservation in institutions, museum holdings and any other form of possession of Native American art of all kinds by US citizens.

  1. STOP Is Unprecedented and Untested Legislation as an “Export Law.” It is Radically Different from All Other Export Laws and Cultural Property Laws Around the World.

Typically, export laws in developing nations prohibit export of all cultural property, which includes everything from paintings to postage stamps over 50-100 years old. This is often the case where a nation has a history of colonial exploitation and also, very importantly, where the local economy is too weak to retain important art or manage resources. The US is by far the largest market in the world for Native American art.

Laws in some totalitarian nations prohibit all export as a means of centralizing and controlling movement of property and sometimes as a means of limiting free expression of ideas. So, for example, books and historical documents are considered cultural property under these laws.

Laws in some developed nations (such as Great Britain or Canada) require a permit for export of items over a certain age and value. Permits are almost always granted, and when they are not granted, the law provides for systems (government grants, special purchases) to acquire the art for the nation at Fair Market Value. To be subject to export review, objects considered ‘ethnographic material’ must have a fair market value of $3,000 if made by an “Aboriginal person.”

In the UK, an exporter is required to obtain a permit in order to export artworks and historic objects meeting criteria based on Fair Market Value, archaeological status or origin. The Arts Council’s Committee on the Export of Works of Art and Objects of Cultural Interest (RCEWA) advises the government on whether to retain an artwork or grant an export license. Permission to send the item out of the UK may be refused in order to allow time for repurchase of the artwork by a UK museum or charitable fund. Repurchases are usually supplemented by public donations.

Laws in other developed nations regulate export of all art in a national inventory, based on a specific list of identified objects that are restricted from permanent or temporary export. Each object subject to export restriction is individually cataloged. This is the case in Japan, where cultural property of different degrees of importance is documented and classified into categories from freely exportable to lawful for temporary export for exhibition purposes (just over 10,000 items in the entire history of Japanese art), to unlawful to export under any circumstances (about 1400 individual items, many in the Imperial collections).

Industrial nations also prohibit trade in very specific non-art commodities, either to protect industry or limit access to technology, for example nuclear or weapons technology.

 

STOP does not fit into any of these categories of existing laws. It’s not based on value, not on a list of objects, or defined types of items that cannot be exported. That means that there are no similar models, in the US or internationally, that we can look to and compare how other laws have worked in the past. That no such system has ever been tried in any other country should discourage the broad imposition of highly restrictive policies affecting virtually all Native American art.

  1. Conclusion

The Committee for Cultural Policy urges that the Senate Indian Affairs Committee seriously consider alternatives to the STOP Act to find a cure for the serious concerns of the tribes. The answer cannot be found in the flawed legislation of the STOP Act. Instead, this Committee should consider as alternatives:

  • legislation to more efficiently bring objects and ancestral remains already under federal government control back to the tribes, to ensure adequate funding for National NAGPRA, to fund tribal cultural offices, and to develop tribal legislation to ensure that important cultural resources remain permanently in tribal hands;
  • educating the public on tribal values;
  • facilitating truly voluntary returns of important cultural objects;
  • building tribal government capacities and cultural heritage institutions, and creating tribal organization(s) to accept voluntary donations.

I would like to thank the Senate Indian Affairs Committee for the opportunity to present testimony. The Committee for Cultural Policy respectfully requests the Senate Indian Affairs Committee to carefully consider all the concerns raised regarding this legislation and to reject the STOP Act as written.

[i] The Committee for Cultural Policy, POB 4881, Santa Fe, NM 87502. www.committeeforculturalpolicy.org, info@committeeforculturalpolicy.org.

[ii] H.R.3211, 115th  Cong. § 3(5) (2017).

[iii] Lingle v. Chevron USA Inc., 544 U.S. 528, 538 (2005).

[iv] Lingle v. Chevron USA Inc., 544 U.S. 528, 538 (2005) (citing Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1019 (1992)

[v] Penn Central Transp. Co. v. New York City, 438, U.S. 104, 124 (1978);

[vi] Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539–40 (2005) (citing Penn Central Transp. Co. v. New York City, 438, U.S. 104 (1978); Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982); Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)).

[vii] See e.g., Good v. United States, 189 F.3d 1355 (Fed. Cir. 1999), cert. denied, 529 U.S. 1053 (2000.

[viii] Penn Central Transp. Co. v. New York City, 438, U.S. 104, 129 (1978).

[ix] H.R.3211, 115th Cong. § 5, (2017).

[x] ATADA Bylaws, Article X, Trade Practices, Ethics, And Guarantees. https://www.atada.org/bylaws-policies/

[xi] ATADA Bylaws, Article XI, Due Diligence Guidelines. https://www.atada.org/bylaws-policies/

[xii] ATADA Symposium, Understanding Cultural Property: A Path to Healing Through Communication. May 22, 2017, Santa Fe, NM.

[xiii] ATADA Bylaws, Article X, ATADA Guidelines Regarding the Trade in Sacred Communal Items of Cultural Patrimony. https://www.atada.org/bylaws-policies/

[xiv] 16 U.S.C. § 470aa(b).

[xv] H.R. REP. 96-311, *12,1979 US.CC.A.N. 1709, **1714

[xvi] 16 U.S.C§470ee(f).

China Report: Using U.S. Antiquities Law Against U.S.

November 7, 2017.  U.S. POLICY ENCOURAGES CHINA’S MONOPOLY ON ART SALES; 500% AUCTION GROWTH INSIDE CHINA MOCKS U.S. CULTURAL PROPERTY RESTRICTIONS

November 11, 2017.  A booming market for Chinese artwork and antiquities in Mainland China makes a mockery of a US-China agreement in place since 2009 and due for renewal in 2018. The same objects restricted from import into the US are now sold in galleries and at auction right next door to the People’s Republic in semi-independent Hong Kong – where in 2016, almost $900 million in Chinese art sold at Sotheby’s and Christie’s auctions alone – accounting for 46 percent of sales of Chinese arts and antiques “overseas.”[1]

Since 2009, a Memorandum of Understanding (MOU) between the People’s Republic of China and the United States[2] has prohibited import of Chinese art covering objects from the Paleolithic Period through the Tang Dynasty and monumental sculpture and wall art at least 250 years old. The MOU was intended to decrease looting of Chinese cultural relics by severing the supply from the demand in the United States market.

Report after report concedes that the Chinese art market has rapidly become the largest art market in the world. China’s cultural property laws expressly permit the sale of cultural relics that are not already owned by the state. And the past several years has seen China institute new policies and regulations that make it easier than ever to import and acquire Chinese art and antiquities in China—incentivizing demand by increasing the supply.

According to a comprehensive study published this year by Artnet and the China Association of Auctioneers, while overseas auction sales in Chinese art and antiques experienced a 5% decline between 2015 and 2016, the auction market in Mainland China saw a 7% increase in total sales value of art and antiquities, reaching $4.8 billion in 2016.[3] Even more curiously, after the enactment of the original MOU with the United States in 2009,  the auction market for art and antiques in mainland China experienced a 500% growth between 2009 and 2011, and by 2011, the Chinese auction market surpassed all other countries in the world with $9.3 billion in total sales value.[4]

The rise in demand for Chinese artwork and antiques in China indicates that the Chinese people see antiques not as something to be protected, but as something to be commodified.

Even in 2014, the year after the MOU’s first renewal, statistics show that the fastest growing imports into China were art, antiques, and collector items, which increased at a staggering 2281% rate, while export of art, antiques, and collector items increased by 320% percent.[5]

Mainland China’s strongest trading partners are the United States and Hong Kong.[6] Worldwide auction sales of Chinese art and antiques have shifted significantly to Hong Kong for the convenience of Chinese collectors.[7] Hong Kong sales are counted among the “overseas” sales of Chinese art; in 2016, the Hong Kong branches of Sotheby’s and Christie’s sold approximately $892.5 million worth of Chinese art and antiques, which accounted for 46 percent of sales of Chinese arts and antiques “overseas.”[8]

Looting in China still exists. There has been evidence of continued looting of tombs and cultural heritage sites in China. In 2016, China’s State Administration of Cultural Heritage reported 103 cases of tomb robbing and theft of cultural relics and some estimate that eight out of every 10 tombs in China have been plundered.[9]

But the increase in tomb robbing is due to internal factors in China. Recent reports have blamed a recent spike tomb-robbing of Chinese cultural sites with the romanticization of tomb-robbing in Chinese pop culture, with movies and television series such as Grave Robbers’ Chronicles, which was specifically cited by a 2015 looter as the inspiration for his own looting of a tomb in the Zhejiang Province.[10] More importantly, commentators in China and abroad have also noted the correlation between “the national fervor for antique collecting” and the recent spike in looting of cultural sites.[11] Even for proponents of the MOU, it is undeniable that the Chinese art market is now  “the world’s largest market for art and antiquities.”[12]

China ostensibly combats the looting of Chinese cultural sites through harsh penal laws, increased surveillance, and monetary rewards for the return of cultural relics. In September 2017, The State Administration of Cultural Heritage in China announced its intention to “crack down” on tomb-raiding and other crimes that damage cultural heritage.[13]  The State Administration of Cultural Heritage had previously announced that all cultural relics looted during wartime or from illegal excavation would be banned from being auctioned in China and gave the Chinese government priority in buying cultural relics.[14]

However, the announcement ignored the fact that the most valuable sales of Chinese antiquities occur in overseas markets, not only London, Paris, and New York, but most especially in next-door Hong Kong.

China appears to be doing everything in its power to monetize its cultural property. China’s cultural property law is far more welcoming to private ownership and trade of cultural relics than other source nations and expressly permits Chinese citizens and other organizations to purchase cultural relics from stores, auction houses, and “other lawful channels prescribed by the State.”[15] Nothing in this law prohibits the import of all objects predating the end of the Tang Dynasty (AD 907).

Reports indicate that China is making efforts to exclude foreign trade of Chinese art and antiques, and instead consolidate and encourage the trade within China’s borders.[16] Most recently, in January 2016, China’s Ministry of Culture further eased restrictions by issuing “Measures on the Administration of Artwork Trade (MOU Order No. 56).” Under MOU Order No. 56, which came into effect in March 2016, dealers now only need to obtain a standard business license and register with the Ministry of Culture.

Between 2012 and 2017, China has lowered import taxes on certain art from 12% to 3%, encouraging imports. If that was not enough, the introduction of free ports and free-trade zones in Beijing, Shanghai, Guandong, Tiajin, and Fujian since 2012 have incentivized the import of artwork from abroad by permitting storage of artworks free of import taxes.[17] And Chinese art and antiquity collectors have gotten wise to the free-port system—Collectors are sending objects purchased at auction to free-port warehouses and then “borrowing” the objects for lengthy periods of times, all while avoiding potentially millions of dollars in taxes.[18]

Boddhisatva, Arthur M. Sackler Gallery, Smithsonian Museum. By Daderot (Own work) [CC0], via Wikimedia Commons

Chinese Ship (Tosen_Zu) with Listing of the Sea Route from China to Japan, Brooklyn Museum of Art.

 

 

 

 

 

 

 

 

 

 

[1] ArtNet Report at 20.

[2] Memorandum of Understanding between the Government of the United States of America and the Government of the People’s Republic of China concerning the imposition of import restrictions on categories of archaeological material from the Paleolithic Period through the Tang Dynasty and Monumental Sculpture and Wall Art at least 250 Years Old (January 14, 2009). Renewed January 6, 2014.

[3] Artnet and Chinese Association of Auctioneers, Global Chinese Art Auction Market Report 2016 at 9, 13 (2016).

[4] Global Chinese Art Auction Market Report 2016 at 12. Between 2009 and 2011 auction sales of arts and antiques overseas had also expanded by 278%.

[5] Dezan Shira & Associates, Importing and Exporting in China: A Guide for Foreign Trading Companies at 5 (2015), https://keitercpa.com/wp-content/uploads/2015/07/Importing-and-Exporting-in-China.pdf.

[6] Census and Statistic Department, the Government of the Hong Kong Special Administrative Region, Hong Kong Monthly Digest of Statistics: Trade between Hong Kong and the Mainland of China, June 2016, http://www.statistics.gov.hk/pub/B71606FC2016XXXXB0100.pdf.

[7] Global Chinese Art Auction Market Report 2016 at 18.

[8] ArtNet Report at 20.

[9] Provinces like Henan, Shaanxi, and Shanxi have been especially hard hit. Amy Qin, Tomb Robbing, Perilous but Alluring, Makes Comeback in China, NY Times, July 15, 2017, https://www.nytimes.com/2017/07/15/world/asia/china-tomb-robbing-qin-dynasty.html?_r=1.; See also 11 Sentenced for North China Tomb raiding, China.org.cn, July 26, 2017, http://www.china.org.cn/china/2017-07/26/content_41291591.htm.

[10] Amy Qin, Tomb Robbing, Perilous but Alluring, Makes Comeback     ` in China, NY Times, July 15, 2017, https://www.nytimes.com/2017/07/15/world/asia/china-tomb-robbing-qin-dynasty.html?_r=1.

[11] http://www.china.org.cn/china/2017-07/26/content_41291591.htm

[12] Deborah Lehr and Katie Paul, The Potential Dark Side of China’s Art and Antiquities Boom, Aug. 12, 2016, https://thediplomat.com/2016/08/the-potential-dark-side-of-chinas-art-and-antiquities-boom/.

[13] Hu Yongqi, Nationwide crackdown set to protect cultural heritage sites, The State Council, The People’s Republic of China, Sept. 23, 2017, http://english.gov.cn/state_council/ministries/2017/09/23/content_281475878270262.htm.

[14]Nectar Gan, China bans looted antiques from going under hammer at mainland auction houses, South China Morning Post, Nov. 02, 2016, http://www.scmp.com/news/china/policies-politics/article/2042322/china-bans-looted-antiques-going-under-hammer-mainland.

[15]Law of the People’s Republic of China on Protection of Cultural Relics, art. 50. Cultural relic stores must, prior to sale, engage the administrative department for cultural relics to verify the object. art. 56. The only prohibition on sale of cultural relics in China are on state-owned cultural relics, and those “valuable” cultural relics  in the collections of cultural institutions.

[16] Deborah Lehr, China’s Art Market is Booming—Just Not for Foreigners, Huffington Post, Mar. 1. 2017, https://www.huffingtonpost.com/entry/chinas-art-market-is-booming-but-not-for-foreigners_us_58b6fb0de4b0563cd36f6399

[17] Jason Chow, Chinese Create Tax-Tree Zone for Art, The Wall Street Journal, Mar. 24, 2013, https://www.wsj.com/articles/SB10001424127887323854904578261171833355606.; Beijing Freeport: China’s capital massive tax-free art storage facility — media round up, Art Radar Journal, Aug. 8, 2012;  Global Chinese Art Auction Market Report 2016 at 18; George Chen, Shanghai’s free-trade zone threat to Hong Kong art auctions, South China Morning Post, July 5, 2013, http://www.scmp.com/business/china-business/article/1275544/free-trade-threat-hong-kong-art-auctions.

[18] Olivia Geng, Artful Dodge: Why Chinese Collectors Are ‘Borrowing’ Their Own Pieces, The Wall Street Journal, Jul. 28, 2014, https://blogs.wsj.com/chinarealtime/2014/07/28/artful-dodge-why-chinese-collectors-are-borrowing-their-own-pieces/.