The Protection of Cultural Property and the Circulation of Cultural Objects National Report The United States

Transcription

1 The Protection of Cultural Property and the Circulation of Cultural Objects PATTY GERSTENBLITH Distinguished Research Professor and Director, Center for Art, Museum and Cultural Heritage Law, DePaul University College of Law Programme de recherche réalisé par le : Centre d études sur la coopération juridique internationale (CECOJI) - FRE3500- Université de Poitiers/CNRS

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3 Sommaire Introduction 5 I. Framework 5 CHAPTER 1. INSTITUTIONAL FRAMEWORK 5 Section 1. The Federal System 5 Section 2. Administration and Management of Cultural Heritage 6 CHAPTER 2. KEY CONCEPTS 8 Section 1. General notions 8 1. Private Ownership 8 2. Museums 9 Section 2. Cultural Heritage Law Regulating Cultural Objects and Works of Art10 1. Federal Legislation Antiquities Act of Archaeological Resources Protection Act of Native American Graves Protection and Repatriation Act Underwater Cultural Resources 2. State Legislation Section 3. Criminal Law 14 Title 2. Control of movement 16 CHAPTER 1. INTERNATIONAL LAW 16 Section 1. International Conventions 16 Section 2. Uniform norms 16 Section 3. Codes of Practice 16 CHAPTER 2. NATIONAL LAW: PROTECTION AND MOVEMENT 18 Section 1. Protection of Cultural Objects Cultural Objects belonging to Public Bodies Cultural Objects in Private Collections Disposition Time Limitations Immunity from Seizure for Cultural Objects on International Loan 22 Section 2. Regulation of movement Export Control Import Control Smuggling (in general) Convention on Cultural Property Implementation Act Trade Embargoes 27 Title 3. Illicit trafficking 28 CHAPTER 1. MEANS OF FIGHTING TRAFFICKING 28 Section 1. Prevention Identification Provenance 28 Section 2. Criminal law Laws of Specific Application Laws of General Application Theft Smuggling Penalties 32 Section 3. Contractual and tortious liability 33 Section 4. International law 36 3

4 Section 5. In practice Databases Cooperation among Law Enforcement Services 37 CHAPTER 2. CONSEQUENCES: RETURN AND RESTITUTION 38 Section 1. Restitution of Stolen Art Works Litigation Act of State Doctrine Foreign Sovereign Immunity Choice of Law Museum Practices related to Art Works Looted during the Holocaust 42 Section 2. Return to the state of origin: Archaeological Objects Litigation Voluntary return Voluntary Policies for Treatment of Archaeological Objects Museums Other Professional Associations 49 4

5 The Protection of Cultural Property and the Circulation of Cultural Objects PATTY GERSTENBLITH Distinguished Research Professor and Director, Center for Art, Museum and Cultural Heritage Law, DePaul University College of Law Introduction The United States may be the largest destination market for cultural objects that circulate throughout the world. As such, the status of the law in the United States for controlling that trade has significant ramifications for the protection of cultural heritage in other nations, as well as within the United States. The protection of cultural property within the United States and the participation of the United States in international treaties to regulate the movement of cultural objects 1 bear unique features that reflect characteristics of the U.S. legal system and its traditions and attitudes toward culture. These characteristics include the division of legal and regulatory authority between the federal government, on the one hand, and state 2 and local governments, on the other. This leaves significant gaps in the ability of the United States to protect its domestic cultural heritage while limiting the effectiveness of statutes that could be used to regulate the international movement of cultural objects. A second characteristic is the strong protection given to private rights in property, which are guaranteed by the U.S. Constitution and sometimes further enhanced under state constitutions. This limits the ability of the government to regulate private property, even in the interest of preservation. Finally, majority populations of the United States have tended over the centuries to view their cultural roots as lying in Europe, the Mediterranean, the Middle East and further afield in Asia, Latin America and Africa, rather than within the United States. This has led to a cultural policy that encourages the free import of cultural objects, as seen in the lack of customs duties for works of art and few regulations, accompanied by a policy of free export of cultural objects from the United States. This has often put the United States at odds with other nations and produced a lack of understanding of how other nations and other peoples regard their cultural heritage. These attitudes are changing, in large part through growing recognition of the consequences of looting, theft and destruction of cultural heritage during armed conflict and to meet the increasing demand of the international market. The legal regime is therefore evolving to reflect these attitudes. Nonetheless, it is difficult for many in the United States to understand these different perspectives and the policies and legal rules that are the result. I. Framework Chapter 1. Institutional Framework Section 1. The Federal System The government of the United States is a federal system. Authority is divided between the federal government and the fifty state governments. The state governments typically transfer some of their authority to lower levels of government, such as cities and counties. The federal government is a government of limited authority; it has only the powers given to it in the U.S. Constitution, as well as any powers necessary and proper to carry out the specifically The views expressed herein are my own and not necessarily those of the Cultural Property Advisory Committee or the U.S. Government. 1 The term cultural object is used to mean an object of moveable, personal property that bears historical, religious, artistic or cultural significance. Under the U.S. legal system, the term personal property includes within its meaning moveable property, while land or immoveable property is characterized as real property. 2 The term state is used to refer to the fifty states that make up the United States. The term State is used to refer to a nation. 5

6 enumerated powers. Any powers not given to the federal government are reserved to the states. 3 This means that any federal statute or regulation must have a specific constitutional basis of authority. Federal regulation in the realm of domestic archaeological and historic preservation is generally viewed as based on several constitutional sources, including federal government ownership of lands, its special relationship with the Indian tribes, and its authority to regulate interstate and international commerce. The federal government is given plenary and exclusive power to conduct foreign affairs 4 and authority to regulate interstate commerce. The federal government s authority to participate in international conventions is based on the foreign affairs power. The ability to regulate interstate commerce is the basis for controlling the movement of cultural objects between the different states and across international boundaries. With respect to domestic cultural heritage, the federal government provides a unitary regulatory scheme only for public lands owned or managed by the federal government and Native American tribal lands and for the interstate and international commerce in archaeological resources. State governments have responsibility for state-owned and controlled lands. All together, the public lands amount to approximately 40 percent of the landmass of the United States and are therefore subject to either federal or state government regulation. State and local governments indirectly control activity on private land, in part through zoning and other land-use regulations, but this often leaves archaeological resources located on private land largely unregulated by statute. To the extent that state and local governments attempt to regulate cultural resources on private land, their ability to do so is limited by the U.S. Constitution's Fifth and Fourteenth Amendment 5 and may be further limited by state constitutional provisions. The Supreme Court has extended the compensation requirement to certain types of land-use regulations, even when the landowner has not been denied ownership. 6 Although the Takings Clause would therefore seem to limit state government attempts to protect cultural resources located on private land, protective regulations enacted in recent years have so far withstood constitutional challenge. The Supreme Court specifically found that land use regulation for the purpose of historic preservation does not constitute a taking of private property under the federal Constitution. 7 The different underlying sources of law that apply to terrestrial and to underwater archaeological resources add yet another complicating factor in the legal protective regime. The underlying law applicable to land is based on the common law of finds. However, the underlying law applicable to underwater resources is the maritime law of admiralty, which encompasses both the law of finds and the law of salvage. 8 This has produced different sets of legal considerations and distinct regulatory schemes for the protection of these different resources, although the rationales for such protection are the same in both contexts. Section 2. Administration and Management of Cultural Heritage Protection of cultural resources in the United States reflects the division of legal authority and responsibility between the federal and state governments. Furthermore, one feature that makes the United States perhaps unique is that it has no Ministry or Department of Culture. Thus, concerns with cultural heritage are divided among many different federal administrative agencies, some of which are mirrored in comparable agencies at the state level as well. For example, implementation of the United States ratification of the 1970 UNESCO Convention on 3 The Tenth Amendment to the U.S. Constitution states: [t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. 4 See von Saher v. Norton Simon Museum of Art at Pasadena, 592 J.3d 954, (9 th Cir. 2010)(striking down a California statute of limitations extending the time period for recovery of art works looted during the Holocaust because it infringed on the federal government s exclusive power to conduct foreign affairs). 5 The Takings Clause of the Fifth Amendment to the U.S. Constitution prohibits the taking of private property for public use, without just compensation and applies to the states through the Fourteenth Amendment. 6 See, e.g., Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922); Lucas v. South Carolina Coastal Council, 505 U.S (1992). 7 Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978). 8 See, e.g., R.M.S. Titanic, Inc. v. Wrecked & Abandoned Vessel, 435 F.3d 521, (4 th Cir. 2006)(distinguishing between the status of a finder and that of a salvor-in-possession). The Abandoned Shipwreck Act of 1987, 43 U.S.C , abrogated the law of finds and of salvage as applied to certain historic abandoned shipwrecks. See also infra notes & accompanying text. 6

7 the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property ( the 1970 UNESCO Convention ) is administered through the Cultural Heritage Center of the U.S. Department of State. Implementation of the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict is primarily carried out through the Department of Defense. Protection of cultural sites on federally owned or managed land is divided among several agencies, including the Department of the Interior (the National Park Service), the Army Corps of Engineers, the Bureau of Indian Affairs and the National Oceanic and Atmospheric Agency, which manages marine sanctuaries and preserves. Some administrative or regulatory aspects are carried out by quasi-government agencies, such as the Advisory Council for Historic Preservation. Enforcement of federal laws is also divided among different branches of the government. For example, the Department of Homeland Security and its sub-agencies of Immigration and Customs Enforcement-Homeland Security Investigations (ICE-HSI) and Customs and Border Protection (CBP) enforce the U.S. legislation implementing the 1970 UNESCO Convention and other aspects of Customs law. However, violations of federal laws that occur within the United States, including forgery, money laundering, wire and mail fraud, and trafficking in Native American and U.S. domestic cultural objects and stolen property, are investigated through the Federal Bureau of Investigation (FBI). All of these crimes would be prosecuted by the Department of Justice, primarily through one of the ninety-three U.S. Attorney offices located throughout the United States. The FBI has established an Art Crime Team with investigators who specialize in art crimes. The Department of Homeland Security, on the other hand, does not have a specialized agency or team that handles Customs violations involving cultural objects. The federal courts have two bases for original jurisdiction. One basis occurs when the case raises a federal question, such as where the federal Constitution or a federal statute is at issue. The second basis for jurisdiction is diversity of citizenship. Diversity jurisdiction exists where the litigants are citizens of different states or one litigant is a citizen of a foreign nation and the amount in controversy exceeds US$75,000. In deciding a case where jurisdiction is based on diversity of citizenship, the federal court is obligated to follow the law of the state in which the federal court sits. A decision of a federal court in a diversity case has no binding authority on the courts of the state whose law the federal court is interpreting. Many cases involving cultural heritage disputes, particularly those involving theft of artworks and other cultural objects, are heard in federal court based on diversity of citizenship but are decided under state law. There are three levels of federal courts: the district courts (the trial courts), the appellate courts and the Supreme Court (the highest court in the United States). There are ninety-four federal district courts throughout the United States. Each state has at least one district court and the larger states have several individual districts. The district courts function as the lowest level of trial court and hear both civil and criminal cases. There are thirteen circuit courts of appeal. Eleven represent regional groupings of states; one circuit court serves the District of Columbia and one, the Court of Appeals for the Federal Circuit, hears cases on more specialized and technical subjects, including international trade. A circuit court normally sits in panels of three judges and cases are decided by a majority vote; a litigant who loses may ask the entire court to rehear the case sitting en banc. The decisions of a circuit court are binding on all the district courts within that circuit. However, the decisions of one circuit court are not binding on any other circuit court or on the district courts in a different circuit. This means that there can be different conclusions or interpretation of law from one circuit to another. Parties who lose in the district court have the automatic right to appeal to the appropriate circuit court. However, a litigant who loses the appeal does not have an automatic right to have the Supreme Court hear the case. In fact, the Supreme Court hears very few appeals in a year and does so only in clearly defined categories of cases; 9 this means that the circuit courts of appeal are, for the vast majority of litigants, the final court that will hear a case. Each of the fifty States, as well as smaller and non-state entities such as the District of Columbia and Puerto Rico, have their own administrative agencies, law enforcement apparatus 9 The most common bases for the Supreme Court to take an appeal are in cases involving a federal law question on which a conflict has developed among the federal circuit courts or state supreme courts; cases in which the lower court decision conflicts with prior Supreme Court precedent, or cases presenting an important issue of federal law with significant practical consequences. See Timothy S. Bishop, Opposing Certiorari in the U.S. Supreme Court, available at: 7

8 and court system. For example, each state has a state historic preservation officer and a tribal historic preservation officer, who oversee compliance with the National Historic Preservation Act as well as often compliance with state archaeological and historic preservation statutes. Each state and many local governments have their own police agency and court system. The federal government cannot prosecute crimes that do not involve a federal offense; only state law enforcement officials can prosecute such crimes. This division creates situations in which it may be difficult to adequately prosecute certain types of cultural heritage offenses. Chapter 2. Key Concepts Section 1. General notions 1. Private Ownership Under the United States legal system and particularly its Constitution, private ownership of property, both moveable and immovable, is a constitutionally protected right. The government can take property from its owner only pursuant to an action for eminent domain with the payment of just compensation and when the taking is viewed as furthering a public purpose. Actions by state and local governments are subject to the same federal constitutional restrictions as well as, in some cases, more stringent restrictions imposed through state constitutions. While the ownership of immovable cultural sites and structures is generally determined by the ownership of the land, the ownership of buried archaeological objects is determined by who owns the land in which the object is found. The federal government has no basic or inherent right to own objects, sites or structures. The federal and state governments own government documents, such as Presidential papers, but if the government wishes to take an historically significant document from a private owner, it must compensate the owner. In the case of historic structures, a property may be listed on the National Register of Historic Places but, if the property is privately owned, it may be listed only with the consent of the owner. The legal regime for determining ownership of cultural resources in the United States is a complex web of laws derived from many different sources. In terms of archaeological resources located on land, the first such source is the common law of finds. 10 The common law remains the backdrop, although it has been substantially altered through statutory regulation enacted at both the federal and state levels. The law of finds focuses primarily on previously owned property, and its rules regulating the disposition of personal property are motivated in large part by the goal of reuniting the original owner with the object. Depending on the exact circumstances of the loss of the property, this policy may be furthered by awarding possession of the object to the finder and in other circumstances by awarding possession to the owner of the real property where the object was found. The finder keeps the object only when this will facilitate providing notice of the find to the original owner or otherwise enabling the original owner to locate the property. Other policy goals include returning the object to public circulation, rewarding advances in technology that enable the finder to retrieve objects, and providing amusement to the public. The law of finds divides found personal property into five classifications: lost, mislaid, abandoned, and embedded property, and treasure trove. Each classification has its own distinct elements and its own mode of treatment. Lost property is property that the owner has lost involuntarily through neglect, carelessness, or inadvertence and of whose whereabouts the owner is unaware. The finder of lost property acquires a complete right against all but the true owner. Because the owner does not know where to look for the lost property, awarding possession to the finder furthers the policy of putting the object back into circulation. Furthermore, the possibility of gaining a recognized right to the property also encourages the finder to publicize the find, the only mechanism by which the original owner may be reunited with the property. However, a finder who does not attempt to find the true owner or who commits trespass in finding the property may lose any right to it. 10 For more detailed discussion of the common law of finds, see Leanna Izuel, Property Owners' Constructive Possession of Treasure Trove: Rethinking the Finders Keepers Rule, 38 UCLA L. Rev. 1659, (1991); Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B.U. L. Rev. 559, (1995); Richard B. Cunningham, The Twilight of Treasure Trove, in Legal Perspectives on Cultural Resources 37 (Jennifer R. Richman & Marion P. Forsyth eds. 2004). 8

9 Abandoned property is property to which the original owner has relinquished all right, title, claim, and possession with the intention of terminating ownership but without vesting ownership in any other person and without any intention of reclaiming it in the future. Courts consider such property to have returned to a "state of nature" and thus, as unowned property, it is subject to appropriation by the first person who reduces it to possession. The finder of abandoned property acquires absolute title to it, with no duties to the original owner. However, the finder bears the burden of proving the original owner's intent to abandon the property. The third category, mislaid property, is property that the owner has intentionally hidden but for some reason has been prevented from returning to reclaim. In the case of mislaid property, the policy goal of reuniting property and owner is furthered by awarding possession to the owner of the real property where the object was found. This is done on the assumption that the original owner will eventually remember where the object was placed and will return to reclaim it. The category with the greatest relevance to archaeological objects is that of embedded property. 11 Embedded property is any property, not made of gold, silver, or their paper equivalents, found buried or embedded in the ground. Embedded property is given to the real property owner in recognition of the real property owner's constructive possession of everything contained on and below the surface of the land. 12 The fifth and most problematic category of personal property is treasure trove. The concept of treasure trove had its origins in medieval English law and initially applied to treasure left buried by the Romans when they were expelled from Britain. At common law, treasure trove included only gold and silver objects intentionally hidden in the ground or in a structure by the original owner who was prevented from returning to reclaim it. Under British law, treasure trove belongs to the Crown. 13 The traditional rules of treasure trove were abandoned in the United States after the Revolution and decisions of the early twentieth century awarded treasure trove to the finder, even if the finder had committed trespass in the process of obtaining it, with considerable variation among the individual states. 14 To the extent that the United States' version of the treasure trove rule encourages trespass, it has been questioned as providing an incentive to lawbreaking and has come under considerable criticism. Today courts that have considered the rule have largely rejected it Museums The United States has no national museum. The Smithsonian Institution is considered a quasi-federal institution 16 but, otherwise, most major museums are privately incorporated entities. A self-perpetuating board of trustees governs a museum; the board owns the assets of the museums, including objects in the museum s collection, and controls their disposition. State and local governments may own museums and some museums are part of a college or university; the latter are sometimes termed embedded museums, because they are embedded within a larger institution. The management and control of such a museum is directed by the university s or college s board of trustees. If the university is a state university, then its museum and its collection are publicly owned. The federal government has no direct regulatory authority over 11 See, e.g., Allred v. Biegel, 240 Mo. App. 818 (1949) (holding that a Native American canoe should be classified as embedded, not lost, property and therefore belongs to the landowner, not the finder). 12 Cunningham, supra note 10, at The Treasure Act of 1996 and subsequent amendments have modified the definition of treasure. This subject, however, falls outside the scope of this paper. 14 Cunningham, supra note 10, at One court stated, in rejecting the finders keepers and treasure trove rules, the rule of treasure trove is of dubious heritage and misunderstood application, inconsistent with our values and traditions. Corliss v. Wenner, 34 P.3d 1100, 1105 (Id. App. 2001). The court further explained that there is no reason to treat property composed of precious metals any differently than other type of embedded property; therefore, the landowner should have rights to the property superior to anyone other than the original owner. Id. at The Smithsonian was founded in 1838 by a gift from an Englishman, James Smithson, and operates under the Organic Act of It operates as an independent entity within the federal government and is managed by a board of regents with several positions filled by government leaders. Its traditional focus was on the natural and physical sciences, but its collections now cover an unusual breadth of subject matter and it is organized into numerous smaller museums and research institutes. The scope of the Smithsonian expanded beginning with the founding of the Freer Gallery of Art in 1921, and several museums devoted to the visual arts were added over the years, particularly in the 1960s. Although the Smithsonian receives appropriations annually from Congress, it also has a considerable independent endowment, based on Smithson s original gift, and receives other private gifts. 9

10 museums and does not control acquisitions or deaccessioning from such institutions, although state governments may do so and questions of deaccessioning may also be controlled through the application of common law doctrines regarding donor intent. 17 Section 2. Cultural Heritage Law Regulating Cultural Objects and Works of Art 1. Federal Legislation 1.1. Antiquities Act of 1906 Beginning in the 1870s, interest in North American archaeology and anthropology began to flourish. This interest was in part stimulated by the inclusion of Native American artifacts in the Smithsonian Institution exhibition in Philadelphia as part of the Centennial Exposition in In 1879, the Anthropological Society of Washington (a forerunner of the American Anthropological Association) and the Archaeological Institute of America were founded, and the Bureau of American Ethnology was established at the Smithsonian Institution. Surveys of sites in the Southwest not only revealed the destruction and looting of sites but also stirred interest, along with the development of ethnographic and anthropological study of Native Americans, in the market for the products of that looting. Pothunters vandalized large numbers of ancient dwelling sites and cemeteries for personal gain. Some, such as the Wetherill brothers, profited by outfitting major museums, such as the American Museum of Natural History in New York. Others took their collections back to Europe, thereby arousing the American public over loss of its cultural heritage. 18 By the early twentieth century, growing public and academic interest in Native American sites in the Southwest led to two major developments: enactment of the Antiquities Act of 1906, 19 and the designation of Mesa Verde as the first Native American site protected as a national park. The Antiquities Act provides that the President may set aside as national monuments "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" located on lands owned or controlled by the federal government (including Indian tribal land, forest reserves, and military reservations) 20 and penalizes the destruction, damage, excavation, appropriation, or injury of any historic or prehistoric ruin, monument or object of antiquity without a permit. 21 However, the effectiveness of the Antiquities Act suffered from years of lax enforcement and relatively minor penalties. In 1974, the Act was declared unconstitutional by the Court of Appeals for the Ninth Circuit, which found that the legislation failed to define adequately terms such as "ruin," "monument," and "object of antiquity." The Act thus violated due process by failing to give the person of ordinary intelligence a reasonable opportunity to know what the Act prohibited Archaeological Resources Protection Act of 1979 The Ninth Circuit s decision declaring the criminal provisions of the Antiquities Act unconstitutional provided the stimulus for enactment of new federal legislation, the Archaeological Resources Protection Act of 1979 (ARPA). 23 ARPA cured the defect of the Antiquities Act by providing a clear definition of "archaeological resource" as: any material remains of past human life or activities which are of archaeological interest,... includ[ing], but not... limited to: pottery, basketry, bottles, weapons, weapon projectiles, tools, 17 Issues of deaccessioning and other aspects of museum management are discussed later. 18 For background to enactment of the Antiquities Act, see Francis P. McManamon, Ownership and Protection of Heritage: Cultural Property Rights for the 21 st Century: Cultural Resources and Protection under United States Law, 16 Conn. J. Int l L. 247, (2001); Robert H. McLaughlin, The American Archaeological Record: Authority to Dig, Power to Interpret, 7 Int'l J. Cultural Prop. 342, (1998). 19 Ch. 3060, 34 Stat. 225, codified at 16 U.S.C The history of the Antiquities Act is presented in Ronald F. Lee, U.S. Dep't of the Interior, The Antiquities Act of 1906 (1970), available at: U.S.C Id. at United States v. Diaz, 499 F.2d 113, 115 (9th Cir. 1974) U.S.C. 470AA-470HH. See Don D. Fowler & Barbara Malinky, The Origins of ARPA: Crafting the Archaeological Resources Protection of 1979, in Presenting Archaeology in Court 1, 8-17 (Sherry Hutt, Marion P. Forsyth & David Tarler eds. 2006). 10

11 structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, graves, human skeletal materials, or any portion or piece of any of the foregoing items... No item shall be treated as an archaeological resource under regulations under this paragraph unless such item is at least 100 years of age. 24 Both the Antiquities Act and then ARPA, within the constitutional limits of Congressional authority, function as national ownership laws, vesting ownership of archaeological resources found on federal and Indian lands, with exceptions now provided in the Native American Graves Protection and Repatriation Act, in the national government and requiring that anyone who wishes to excavate or remove archaeological resources first obtain permission from the federal government. 25 ARPA prohibits and criminalizes trafficking in archaeological resources obtained in violation of ARPA, as well as interstate commerce in any archaeological resources taken or held in violation of federal, state or local law, including artifacts removed from private land Native American Graves Protection and Repatriation Act The most recent and interesting statute in the arsenal of federal laws that concern cultural heritage is the Native American Graves Protection and Repatriation Act (NAGPRA), enacted in NAGPRA vests ownership of human remains and cultural items discovered after 1990 on federally owned or controlled lands or on tribal lands in Native American tribes and Native Hawaiian organizations. 28 It thus derogates from both the common law and ARPA by vesting ownership of cultural items in lineal descendants or, if lineal descendants cannot be ascertained, then in the descendant community that is, a Native American tribe or Native Hawaiian organization, depending on a variety of factors rather than in the federal government. 29 NAGPRA also requires museums and universities that receive federal funding and federal agencies to publish inventories and summaries of Native American and Native Hawaiian human remains, associated and unassociated funerary artifacts, objects of cultural patrimony and sacred objects that are in their collections and make these available to tribes and Native Hawaiian organizations for repatriation. 30 NAGPRA s trafficking provisions criminalize the knowing trafficking in Native American human remains and the knowing trafficking in Native American cultural items obtained in violation of NAGPRA U.S.C. 470BB. See United States v. Austin, 902 F.2d 743 (9th Cir. 1989) (holding ARPA constitutional despite challenge on the basis of both overbreadth and vagueness) U.S.C. 470CC; 470EE(a). ARPA exempts the removal of arrowheads located on the ground surface from its criminal penalties, id. at 470EE(g), and its civil penalties, id. at 470FF(3). However, such arrowheads and other artifacts that are less than one hundred years old (and therefore do not fit the ARPA definition of archaeological resource ) still belong to the United States government or Native American tribe as landowner. United States v. Shivers, 96 F.3d 120 (5 th Cir. 1996). Someone who removes such objects without permission can be charged with theft of government property, 18 U.S.C U.S.C. 470EE(b) and (c); United States v. Gerber, 999 F.2d 1112 (7 th Cir. 1993)(holding that ARPA s criminal provisions apply to the interstate trafficking of archaeological artifacts removed from private land without the landowner s permission and in violation of state law). For more discussion of the criminal provisions of the Antiquities Act and ARPA, see infra notes & accompanying text U.S.C Id. at NAGPRA defines cultural items as including human remains and four categories of objects: associated funerary objects; unassociated funerary objects; sacred objects, and cultural patrimony. Sacred objects are defined as specific ceremonial objects which are needed by traditional Native American religious leaders for the practice of traditional Native American religions by their present day adherents. Objects of cultural patrimony are those objects that hav[e] ongoing historical, traditional, or cultural importance central to the Native American group or culture itself. 25 U.S.C. 3001(3)(A)-(D). 29 Id. at This provision, which was originally thought to be relatively uncontroversial, was the subject of extended litigation concerning disposition of the Kennewick skeleton, Bonnichsen v. United States, 357 Fd.3d 962 (9 th Cir. 2004). This case held that the definition of Native American requires that human remains bear a relationship to a presently existing tribe; therefore, the approximately 8000 year-old remains at issue in the case did not fit the definition of Native American and their disposition was therefore not controlled by NAGPRA. 30 Id. at U.S.C. 1170(a) and (b). NAGPRA withstood constitutional challenge on grounds of vagueness in United States v. Corrow, 119 F.3d 796 (10 th Cir. 1997) (prosecution for trafficking in objects of Native American cultural patrimony); United States v. Tidwell, 191 F.3d 976 (9 th Cir. 1999)(same). 11

12 1.4. Underwater Cultural Resources Underwater cultural resources are subject to the law of admiralty, which is comprised of both the law of salvage and the law of finds. By both the Constitution 32 and statute, 33 federal courts have original jurisdiction over maritime and admiralty cases, whereby they determine the disposition of shipwrecks and associated objects. According to admiralty law, the law of finds applies if the court determines that the owner of the ship has abandoned it, in which case, as with abandoned property on land, title to and possession of the ship and its contents will be given to the finder. If the owner has not abandoned the ship, then the law of salvage applies and title remains with the owner, although the salvor is entitled to a reward, which is often given from the ship s cargo. 34 Courts traditionally favor a finding that the owner has not abandoned the wreck and have therefore set a relatively high bar for a determination that the owner intended to abandon the wreck. 35 As a result of technological advances, which allow shipwrecks at greater depths to be explored and their cargo removed, and in reaction to judicial decisions during the 1980s relying on the law of finds, Congress enacted the Abandoned Shipwreck Act of 1987 (ASA). 36 The effect of the Act is to abrogate the law of finds as applied to shipwrecks that are abandoned and embedded in submerged lands or coralline formations of a state or located on the submerged lands of a state and listed or eligible for listing on the National Register of Historic Places; title to such shipwrecks is vested in the United States, which then transfers title to the individual state. 37 The rationale for enactment of the ASA was that the states were better suited to deal with historic preservation concerns on the local level. Most states had enacted statutes that vested in the state title to all cultural resources embedded in the submerged lands of the state (thereby including land under rivers and lakes, as well as the coastal waters). These states had developed procedures for a permitting system to allow exploration and excavation of submerged resources, similar to those (and, in some cases, administered by the same state agency) that apply to terrestrial archaeological remains. In enacting the ASA, Congress recognized that the focus of traditional maritime law was "commercial, not cultural resource management or recreation" 38 and that it was therefore not well-suited to accomplishing preservation goals Article III, 2, clause U.S.C. 1333(1). 34 The law of salvage focuses on the policy of encouraging salvors to aid in the rescue of both people and goods in peril by promising an award to the salvor without the necessity of entering into a contract with the ship's owner. Courts have therefore traditionally displayed a preference for the law of salvage because it is viewed as encouraging such rescue. See William M. Landes & Richard A. Posner, Finders, Good Samaritans, and Other Rescuers: An Economic Study of Law and Altruism, 7 Legal Stud. 83 (1978). Several factors are taken into consideration in determining the size of the salvage award. In Columbus-America Discovery Group v. Atlantic Mutual Insurance Co., 974 F.2d 450 (4 th Cir.), the court added an additional factor to be used in determining the award to which the salvor is entitled as to whether the salvors worked to protect the historical and archaeological value of the wreck. 35 There is a disagreement among court decisions as to whether abandonment must be explicit or can be inferred from surrounding circumstances. See, e.g., Sea Hunt, Inc. v. The Unidentified Shipwrecked Vessel or Vessels, 221 F.3d 634 (4 th Cir. 2000)(holding that a foreign sovereign cannot be held to an implied abandonment standard); NorthEast Research, LLC v. One Shipwrecked Vessel, 2011 U.S. Dist. LEXIS (W.D.N.Y.2011)(holding that while there is a presumption against abandonment, abandonment can be inferred from surrounding circumstances; the party claiming abandonment must prove it by clear and convincing evidence) U.S.C The Act defines "abandoned" shipwrecks as those that "have been deserted and to which the owner has relinquished ownership rights with no retention." 43 U.S.C. 2101(b). "Embedded" is defined as "firmly affixed in the submerged lands or in coralline formations such that the use of tools of excavation is required in order to move the bottom sediments to gain access to the shipwreck, its cargo, and any part thereof." 43 U.S.C. 2102(a). 38 H.R. Rep. No. 514, 100th Cong., 2d Sess., pt. 1, at 2, reprinted in U.S.C.C.A.N. at The ASA charged the Secretary of the Interior with developing Guidelines for the purposes of preserving shipwrecks of historical and archaeological value, encouraging the development of underwater parks, and facilitating cooperation among a variety of parties for purposes of recreation, cultural resource management, and salvage efforts. Abandoned Shipwreck Act Guidelines, 55 Fed. Reg. 50, 116 (1990). 12

13 2. State Legislation The Protection of Cultural Property and the Circulation of Cultural Objects While federal law governs federally owned and controlled land and can indirectly protect sites located on private land through ARPA's interstate trafficking provisions, 40 direct regulation of state lands and of private land is left to the state governments under the Constitution's federalism provisions. 41 Each state has passed ARPA-equivalent statutes to protect the archaeological heritage by vesting ownership and control over archaeological sites and objects located on state-owned lands in the state government. 42 The state typically reserves to itself (or to a government agency or commission) the exclusive ability to regulate, explore, excavate and survey any historic or archaeological resources found on public land and to collect any items of historical or archaeological interest. 43 Most states have created an historic preservation commission, archaeological commission or both. The primary duties of such commissions typically include monitoring the discoveries of state cultural resources, maintaining lists of sites that have been or should be designated as historical sites, recommending sites for acquisition by the state, conducting surveys of the state's historical and archaeological sites, promoting and increasing knowledge and understanding of the history of the state, and compiling and filing an annual report to the governor or another appropriate official. Every state has a State Historic Preservation Officer, who assists in implementing the National Historic Preservation Act, and many states also have an office of the state archaeologist. The state archaeologist may have particular responsibility for the reinterment of ancient human remains and the identification of such remains with existing cultural and ethnic groups. The appropriate state agency grants the permits or licenses necessary for exploration, excavation, or disturbance of archaeological resources and may establish qualifications, reporting and other requirements. However, state regulation of sites on private land raises more complex questions because of the Fifth Amendment prohibition on the taking of private property without the payment of just compensation. 44 Only two states, Indiana 45 and Washington, 46 seem to regulate directly archaeological resources located on private land. Alabama seems unique in vesting ownership of all archaeological resources in the state, although, like most states, the landowner s consent must be obtained before excavation is carried out on private land. 47 However, most states engage in indirect regulation by conditioning the grant of a building or other permit on an archaeological survey to determine whether the construction activity would jeopardize archaeological or cultural 40 See supra note 26. Under the National Historic Preservation Act, 16 U.S.C w-6, the government is required to assess adverse consequences caused by a federal undertaking to historic properties that are listed or are eligible for listing on the National Register of Historic Places; if such adverse consequences may occur, then the government must attempt to mitigate those consequences. 16 U.S.C. 470f. While this provision most typically applies to projects on federally-owned land, it could apply to privately-owned land if the project qualifies as a federal undertaking. 41 See supra notes 5-7 & accompanying text. 42 See, e.g., Colo. Rev. Stat (1)(reserving title to the state of all historical, prehistorical, and archaeological resources in all lands, rivers, lakes, reservoirs, and other areas owned by the state or any political subdivision of the state. [These] resources shall include all deposits, structures, or objects which provide information pertaining to the historical or prehistorical culture of people within the boundaries of the state of Colorado. ). 43 See, e.g., Me. Rev. Stat. Ann., tit. 27, 374 (outlining procedures and conditions for obtaining a permit to excavate an archaeological site). 44 See supra notes 5-7 & accompanying text. 45 I.C In Whitacre v. State, 619 N.E.2d 605 (Ind. Ct. App. 1993), the court held that the landowners were required to obtain a permit before conducting an excavation on land they had acquired for the purpose of conducting an excavation. They challenged only the interpretation of the state statute as to whether it applied to private land (the court held that it did) and did not challenge the statute as a possible regulatory taking. 46 The Washington statute prohibits any removal, excavation, alteration, damage, defacement or destruction of any historic or prehistoric archaeological resource or site or removal of any archaeological object from such site on the private and public lands of this state without a permit. Rev. Code Wash The statute withstood constitutional challenge on the grounds of vagueness and overbreadth in State v. Lightle, 944 P.2d 1114 (Wash. App Ct. 1997). 47 The statute states: The State of Alabama reserves to itself the exclusive right and privilege of exploring, excavating or surveying, through its authorized officers, agents or employees, all aboriginal mounds and other antiquities, earthworks, ancient or historical forts and burial sites within the State of Alabama, subject to the rights of the owner of the land upon which such antiquities are situated, for agricultural, domestic or industrial purposes, and the ownership of the state is hereby expressly declared in any and all objects whatsoever which may be found or located therein. Ala. Code

14 resources. 48 States may also offer inducements for voluntary preservation of sites, for example by granting tax exemptions for the donation of a conservation easement. 49 Approximately half of the states specifically regulate Native American burials found on private land. 50 These statutes vary in their details but generally limit what the landowner can do on the land if this means disturbing a burial and often requires consultation with the Native American tribe to which the human remains belong. In some cases, the burial can be exhumed and reburied in a different location. In some cases, the statute may be interpreted to prohibit construction on a portion of the private land. Such statutes withstood constitutional challenges, alleging that they constituted a taking of private property without compensation, in Iowa and Minnesota. 51 Section 3. Criminal Law The federal or state governments may prosecute individuals for their involvement in criminal activity that occurs within their respective jurisdictional competences. In the United States, a criminal defendant is given several procedural and substantive protections pursuant to Constitutional requirements of due process of law. 52 One such protection is that a defendant is presumed innocent, until proven guilty. The government bears the burden of establishing the elements of the crime beyond a reasonable doubt. In most criminal cases, a defendant has the right to a jury trial. 53 Once a jury finds the facts of the case and if the defendant is found not guilty, the government may not appeal the jury s factual findings. Either losing party may appeal to an appellate court on the basis of law. When a cultural object is stolen or involved in some other type of illegal activity, the government may pursue criminal prosecution of the offenders those involved in the original theft and those who knowingly traffic in the stolen property. The most difficult aspect of prosecution of art theft is the requirement of establishing knowledge on the part of the current possessor of a stolen work. Because art works easily and quickly transfer through many hands and across international boundaries, proving that the current possessor knows that the particular work was stolen or otherwise illegally obtained may be difficult. Establishing that a large percentage of artworks and archaeological objects, in particular, are stolen property or that a particular object does not have a solid and lengthy provenance is also not sufficient to establish that an individual knows that a particular object was stolen. The consequence of a successful prosecution is that the defendant will be convicted and receive a sentence, which may include incarceration, payment of a fine and criminal forfeiture of the property involved in the crime. A second type of action that the government can pursue is civil forfeiture of the stolen property. Civil forfeiture is, in a sense, a hybrid between a criminal prosecution and a civil action that is brought by a private party (not the government). Civil forfeiture is an in rem proceeding in which the property is the defendant and provides a flexible and useful tool for the government. The government can use forfeiture when it is unable to prosecute the wrongdoer or in cases that are serious but not serious enough to justify a criminal conviction and a prison term. 54 The 48 See, e.g., Murray v. Oregon, 124 P.3d 1261 (Or. Ct. App. 2005)(discussing Oregon statute requiring an archaeological survey before permit can be granted for activities on private land that would disturb or interfere with archaeological or cultural resources, but dismissing land owner s claim as not ripe). 49 Lawrence R. Kueter & Christopher S. Jensen, Conservation Easements: An Underdeveloped Tool to Protect Cultural Resources, 83 Denv. U.L. Rev (2006). 50 See Patty Gerstenblith, Protection of Cultural Heritage Found on Private Lands: The Paradigm of the Miami Circle and Regulatory Takings Doctrine after Lucas, 13 St. Thomas L. Rev. 65, 102 n.149 (2000). 51 See Hunziker v. Iowa, 519 N.W.2d 367 (Iowa 1994); Thompson v. City of Red Wing, 455 N.W.2d 512, (Minn. App. Ct. 1990). 52 The Fifth Amendment, which applies to the federal government, states, No person shall be deprived of life, liberty, or property, without due process of law. The Fourteenth Amendment Section 1 provides, nor shall any State deprive any person of life, liberty, or property, without due process of law. 53 The Sixth Amendment guarantees the accused in criminal prosecutions the right to a speedy and public trial, by an impartial jury. 54 Stefan D. Cassella, Using the Forfeiture Laws to Protect Archaeological Resources, 41 Idaho L. Rev. 129, 132 (2004). Criminal forfeiture can be pursued once a defendant is convicted of a crime, but civil forfeiture can be used without a criminal proceeding. The standard of proof in a civil forfeiture case may be either the preponderance of the evidence (the typical standard of proof in civil cases) or the lower standard of probable cause, which is used in forfeiture cases where the property was involved in a violation of the Customs statute. The standard of proof in a criminal prosecution is beyond a reasonable doubt. The use of forfeiture is discussed in greater detail, infra notes & accompanying text. 14