Recent Disputes and Controversies Involving Asian Antiquities and Cultural Property

Winter 2014Art & Advocacy, Winter 2014, Volume 16
By Howard N. Spiegler1 and Laura Tam


The looting of antiquities and other cultural artifacts is a vast problem in countries around the world, including Cambodia, China, and other Asian nations that face the large-scale destruction of important archaeological sites. Many of these countries are fighting fiercely to preserve their cultural heritage. While diplomatic attempts have been made on the international level to regulate the illicit trade in cultural property, the black market continues to thrive. With the ever-growing global appetite for Asian art and antiquities, it is not surprising that legal disputes involving the acquisition of these objects have become more frequent. This article explores some of the most significant cases and disputes in the United States involving Asian antiquities and cultural property in 2013.

Forfeitures

One way that the U.S. government assists in the fight against the growing illegal art market is the use of civil forfeiture actions. Pursuant to federal forfeiture laws, the U.S. government can bring a civil action to have property that is the subject of criminal conduct forfeited to the U.S. In a recent forfeiture case that was closely watched, partly because of the unusual object in question, federal prosecutors in New York filed a lawsuit in June 2012 seeking to return to Mongolia a 70-million-year-old skeleton of a Tyrannosaurus Bataar that was allegedly discovered in 1946. In May 2012, the skeleton was supposed to sell at auction for $1.05 million, but before the auction took place, the government of Mongolia claimed that the bones were stolen.

The skeleton's importer, Eric Prokopi, a self-described "commercial paleontologist," intervened in the forfeiture action and filed a motion to dismiss, arguing that Mongolia has no law declaring bones to be state property, or that it chose not to enforce such a law. In October 2012, Prokopi was arrested and charged with conspiracy to smuggle illegal goods, possess stolen property, and make false statements. Prokopi was also charged with smuggling goods into the U.S. and the interstate sale and receipt of stolen goods. On November 14, 2012, the District Court for the Southern District of New York denied Prokopi's motion to dismiss, and on December 27, 2012, Prokopi withdrew his claim and pled guilty to smuggling the bones in a bid to reduce a potential 17-year prison sentence. The court entered a default judgment for the prosecution, and the property was forfeited to the U.S. government on February 14, 2013, clearing the way for the dinosaur to be returned to Mongolia. In May 2013, the skeleton, along with additional dinosaur fossils the U.S. government had recovered from a California auction house and a British fossil dealer, were formally repatriated to Mongolia.

In another forfeiture dispute, the U.S. filed a complaint in April 2012 seeking the forfeiture of a 10th-century Cambodia sandstone statue. The statue was set to be auctioned in March 2011 by Sotheby's auction house in New York but was pulled at the last minute after Cambodia claimed ownership. The statue, which is broken off at the legs, allegedly matches a pair of feet left behind at the site of its original location in Cambodia. Several months before the sale was to take place, Sotheby's was allegedly informed by a scholar that the statue was very likely stolen. Nonetheless, it was not until nearly one year after receiving the scholar's report that Sotheby's removed the statue from auction, after being asked by the Secretary General of Cambodia to facilitate its return. On June 5, 2012, Sotheby's and its consignor filed a motion to dismiss the forfeiture, arguing that (i) Cambodia does not have a clear patrimony law giving it ownership over the statue, (ii) if it has such a law, Cambodia has waived it by failing to enforce it, (iii) there was no evidence that the statue left Cambodia after the alleged cultural patrimony laws were in place, and (iv) the consignor was a good-faith purchaser for value, and therefore had good title to the statue under British law even if it had been stolen. In March 2013, Sotheby's motion to dismiss was denied. The case then took an ugly turn, with each side accusing the other of behaving unethically. Sotheby's accused federal officials of blocking a private deal that would have amicably settled the case, while the U.S. government accused a high-level official at Sotheby's of providing false and misleading information. On December 12, 2013, the parties agreed to settle the case. Pursuant to the agreement, the statue will be returned to Cambodia and the U.S. government expressly stipulated that it does not contend that Sotheby's or the consignor "knew or believed that the [s]tatue was owned by the Kingdom of Cambodia or knowingly provided false or misleading provenance information about the [s]tatue." 

Earlier this year, Cambodia formed a task force to pursue the return of other artifacts removed from the country and possibly held by museums in the U.S. and elsewhere. It sought the return of other Khmer statues it claims were looted, including two 10th-century sandstone statues, known as the Kneeling Attendants, from the Metropolitan Museum of Art in New York and one from the Norton Simon Museum in Pasadena, California. In response to Cambodia's claims, the Metropolitan Museum agreed to return the Kneeling Attendants to Cambodia. On June 11, 2013, the statues arrived back in their homeland, where they are on display at the National Museum of Cambodia in Phnom Penh. With the return of the Kneeling Attendants from the Metropolitan Museum and the statue from Sotheby's, Cambodia will turn its focus to the statue at the Norton Simon Museum. According to news reports, officials from the Norton Simon Museum plan to visit Cambodia early next year.

Auction House Controversies

There have been a number of recent controversies involving the sales of Asian art and antiquities at auction. For example, in January 2013, authorities arrested Won Young Youn, a New Jersey art collector, on stolen property charges stemming from the alleged purchase of a precious Korean artifact—a plate dating back to the Joseon Dynasty, Korea's last ruling dynasty. The plate, which was used to print money, is believed to be one of three still in existence from the 1890s.

In 2010, Youn convinced a third party to purchase the artifact on his behalf from Midwest Auction Galleries, a Michigan auction business, for $35,000. Prior to the sale, James Amato, the owner of Midwest Auction Galleries, was informed by representatives from the South Korean Embassy and the U.S. Department of State that the plate may have been brought into the U.S. illegally and that the sale could constitute a violation of the National Stolen Property Act (NSPA). Pursuant to the NSPA, the U.S. may criminally prosecute anyone who possesses, sells, receives, or transports stolen goods valued at more than $5,000 that have either crossed a state or U.S. boundary line or moved in interstate or foreign commerce. Violations of the NSPA are punishable by fine and/or imprisonment of up to ten years.

After the sale, U.S. Immigration and Customs Enforcement launched an investigation into the item. In January 2013, Youn was arrested for purchasing stolen property. Youn cooperated with federal authorities, and his testimony supported the arrest of James Amato on February 12, 2013. To avoid criminal prosecution, both men entered into agreements forfeiting their claims to the plate. Youn, a Korean native who was illegally in the U.S., agreed to return to Korea; and Amato repaid the $35,000, performed 40 hours of community service, and served 90 days of supervised release. On September 3, 2012, the plate was formally repatriated to the Government of South Korea, which marked the first time U.S. Immigration and Customs Enforcement repatriated a cultural artifact to South Korea.

In addition to raising issues involving title, purchasing antiquities at auction can also raise concerns regarding authenticity. For example, in May 2013, Altair Auctions, a small auction house in Massachusetts, drew scrutiny when it sold an allegedly genuine 18th-century Chinese vase for $1.7 million. According to news reports, the vase bears a striking resemblance to a modern reproduction that was auctioned in Iowa in May 2012 at an auction house called Jackson's International for only $3,840. Sometime after the Iowa auction, however, it appears that someone created a phony provenance and replaced a Christie's sticker on the base of the vase auctioned at Altair to now indicate that it had been sold in 1989 in a South Kensington auction as Lot 297. It was also reported that Benjamin Wang, the owner of Altair Auctions, admitted that he never bothered to check with Christie's about the alleged sale. Instead, Wang accepted the false provenance, featured a full-page photo of the vase in the auction catalog, gave the vase a selling estimate of $60,000-$80,000, and obtained a high bid of $1.7 million at the auction. After The Boston Globe started asking questions about the sale, comparing the Altair vase with the vase that had sold in Iowa for $3,840 and suggesting that they were one and the same, Wang canceled the sale. Had Wang investigated the Christie's label, it would have certainly raised a red flag regarding the piece. According to a Christie's representative, the lot indicated on the sticker—lot 297—was not even a vase; it was a statuette with an estimated value of $100. Even though Wang canceled the sale, the U.S. Department of Justice is reportedly investigating to determine whether the auction house deliberately misled pot-ential buyers. Wang main­tains that the vase is an authentic antique and says he will ask the Chinese government to confirm it.

Disputes Involving Dealers

Art dealers have also been in the news recently as a result of their questionable–and indeed sometimes illegal–acquisition practices. In July 2012, the Manhattan district attorney's office issued a warrant for the arrest of the New York art dealer Subhash Kapoor, who was also subject to arrest in India and Germany, on the grounds that Kapoor possessed stolen antiquities from India and other countries. Authorities seized more than $20 million worth of antiquities, including bronze and sandstone statues allegedly looted from temples in India, from Kapoor's storage units. In connection with the arrest warrant, federal officials also requested that museums in the U.S. review their collections for any objects obtained from Kapoor. It was reported that several major museums around the world and in the U.S., including the Royal Ontario Museum in Toronto; the National Gallery of Australia; the Metropolitan Museum of Art in New York; the Museum of Fine Arts, Boston; the Smithsonian's Freer and Sackler Galleries in Washington, D.C.; and the Art Institute of Chicago, had all acquired works from Kapoor. Moreover, in October 2013, the Manhattan district attorney's office charged Kapoor's sister, Sushma Sareen, with four counts of criminal possession of stolen property for allegedly hiding bronze statues of Hindu deities worth $14.5 million so that authorities could not seize them.

In November 2013, art dealer François Lorin and his Florida art gallery, which conducted business under the name "Asiantiques," were charged with obstruction of justice after federal authorities intercepted the importation of hundreds of Chinese fine art objects. Twenty-seven of these objects are considered items of significant Chinese cultural heritage since they pre-date 907 A.D. In 2009, the U.S. entered into a Memorandum of Understanding (MOU) with China, pursuant to the 1983 Cultural Property Implementation Act, which implemented the 1970 UNESCO Convention on Stolen or Illegally Imported Cultural Objects. This bilateral agreement protects archaeological materials rep­resenting China's cultural heri­tage from the Paleolithic Period (circa 75,000 B.C.) through the end of the Tang Period (907 A.D.) and monumental sculpture and wall art at least 250 years old.

According to court documents, the invoices accompanying the shipment allegedly indicated that the objects were being returned to the U.S. after being shipped to Hong Kong for a trade show. After the objects were intercepted, Lorin and others allegedly created documents with false provenance information and provided false invoices that were backdated in an attempt to show that the objects had been acquired prior to the date of the MOU. The gallery faces a maximum fine of $500,000, and Lorin faces a maximum sentence of 20 years in prison and a $250,000 fine. The U.S. government is also seeking the forfeiture of the objects.

Conclusion

Despite attempts to fight the black market, the flow of illicit goods, including Asian antiquities and cultural property, into the U.S. continues. It goes without saying that this could not be the case without an end market for looted goods. Those who deal in cultural property should, of course, exercise appropriate due diligence when acquiring antiquities and similar objects, even as source countries have to devote enough time, energy, and resources to protecting their cultural property. But in an art market that remains largely unregulated and that has been criticized for its lack of transparency, are stakeholders doing all they can? These cases underscore the reality that more – much more – needs to be done.

 


 
1 This article is based in part on remarks delivered by Howard Spiegler, President, Art Law Commission of the Union International des Avocats (International Association of Lawyers), at the organization's 57th Congress in Macau on November 2, 2013.