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  • Andrew Gamble

Admission not required: The conflict of repatriation and museums

Updated: Oct 18, 2023

The trafficking of arts, antiquities and cultural property is a criminal practice that has become inveterate in society as actors look to profit from the pilferage of culturally significant items. While first recorded by the Greek historian Polybius in his explicit denunciation of the Roman practice of cultural depredation to the actions of the Seventh Earl of Elgin, modern audiences have come to learn about the spoilage of cultural property through the likes of Indiana Jones; indeed, cultural property has not been seen as heritage but rather as the spoilage of expansion. For centuries collectors competed to add prized artifacts or “trophies” to their collections.

Consequently, over the last 300 years, organized colonial powers have taken artifacts and cultural property and placed them into the hands of private collectors and museums, who have failed to relinquish their interest in these items. According to Chip Colwell, the Curator of Anthropology at the Denver Museum of Nature & Science, “American repatriation legal regimes reinforce extant power structures by entitling museums to be the ultimate arbiter on the flows of knowledge used to determine the values and histories of cultural objects and human remains.” While museums play a pivotal role in society as bastions of learning, recently, these institutions have faced scrutiny as questions arise over the provenance of their vast collections and the merits of instituting stronger repatriation practices through localized legal pressure in the understanding of cultural heritage as a human rights issue.

Despite the ethical issues in selling looted cultural heritage, international law lacks enforcement against this repugnant industry. The first codified protection against the looting of cultural heritage came in the 1864 American military handbook, the Lieber Code, which instructed American soldiers to protect cultural objects in war; today, the Code serves as a basis of most United States military regulations. The implementation of the United Nations Educational Scientific and Cultural Organization provided a workable legal definition of cultural property. Furthermore, the 1954 Hague Convention for the Provision of Cultural Property in the Event of Armed Conflict and the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import and Transfer of Cultural Property established international legal frameworks. However, these international frameworks rely on good faith enforcement. They lack state law to enforce any provision, as seen in the 2001 destruction of the Fifth-Century Bamiyan Buddhas by the Taliban, whose actions did not violate international law because there is no quantifiable metric for state enforcement.

The Director of the Office of International Relations at the Smithsonian Institution, Molly Fannon, said that “looting of cultural heritage has been happening since the very existence of cultural heritage[.] It is not anything new, but what we see now is that looting has become highly organized.” From a site perspective, some of the most explicit examples of the continued existence of the looting industry can be found in the ancient Syrian cities of Dura-Europos and Tell Bi’a, which have long suffered from systematic looting. In a 2019 study analyzing the impact of looting in both cities, sociologists discovered that from 2007 to 2016, 41,587 objects were listed at 33 auction houses around the world at an aggregate pre-auction estimated value of $469,116,026. This staggering number portrays only the publicly accessible data, and cultural property sold to private dealers without a paper trail is not included. The Archaeological Institute of America, a non-profit organization representing over 200,000 archaeologists, reports that “by some recent estimates, 85-90% of Classical and certain types of artifacts on the market do not have a documented provenance.”

While museums do not endorse looting, the relationship between museums, private collectors and their collection practices, fails to demonstrate any prohibition on looting. As of March 2021, there are 103,842 museums worldwide, with over 33,000 in the United States, and lax international laws have thrust private and legal regulations to the forefront.

The most relevant law, the 1934 National Stolen Property Act, prohibiting the transportation of goods trafficked at a value of $5,000 or more, is helpful in the fight against trafficking in the United States, but the evidentiary burden of illustrating provenance is lofty for any prosecutor. The most analogous legal framework regarding repatriation is in The Native American Graves Protection and Repatriation Act of 1990, which established a mechanism for the repatriation of Native American cultural items. Privately, organizations such as the American Alliance of Museums and the Association of Art Museum Directors have promulgated their own industry standards.

Until 2011, lax laws relating to repatriation in the United States permitted museums to take their own methodical approach. In that year, however, the Office of the Manhattan District Attorney prioritized the seizure and repatriation of these items of spoliation by creating the first Antiquities Trafficking Unit (ATU) in the world, tasked with cracking down on traffickers. In 2017, then-District Attorney Cyrus Vance appointed Matthew Bogdanos, a retired Marine Corps colonel and recipient of the National Humanities Medal, recognizing his efforts in investigating the looting of Iraq's National Museum to oversee the new unit. Since the unit's creation by the Manhattan District Attorney, Bogdanos has raided numerous facilities, including Christie’s in Rockefeller Center, the Metropolitan Museum of Art, the home of Met trustee Shelby White and the gallery of Asia Week New York. From 2017 to 2021, Bogdanos and his team seized 3,604 items valued at nearly $204 million in Manhattan. Their work is not expected to end anytime soon as District Attorney Alvin Bragg continuously praises the unit's work.

Given the success of the ATU in Manhattan, it is likely that other districts will work to create or establish units of their own, sparking repatriation efforts at a larger scale. While some museums may remain quiet on the origins and way in which their collections were acquired, the trend initiated by Bogdanos will likely be curated in offices all over the United States in the coming years.


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