Friday, August 18, 2017

Preservationists Seek to Remove or Even Destroy Confederate Monuments

So-called "preservationists" have advocated for the removal or even destruction of Confederate war memorials as products of an inherently racist culture.  In contrast, CPO believes we should not erase history, but learn from it.

In a blog post on the subject, Obama Cultural Property Advisory Committee Appointee Prof. Rosemary Joyce justifies her views based on the assumption that

When you remove these statues to men who fought for slavery, you’re not destroying history – you’re making it.

Surprisingly, this 180 degree departure from archeology's mantra of preservation of objects in context appears to be based on little more than reductionist reasoning, i.e., the statues must be symbols of  "white supremacy" because they were produced in a racist South.  Indeed, efforts to draw attention to the fact that their iconography is virtually identical to monuments erected in the North at around the same time when the politically powerful Civil War generation was passing from the scene elicited little more than condenscending responses. It seems furthering "white supremacy" not commemoration of sacrifices on the battlefield must be the prime motivator in the South, but not the North (despite similar racist sentiments there at the time).

In any event, justifying the removal or even destruction of historical monuments by designating them as "racist" should be even more troubling given recent events in Iraq and Syria.   Indeed, there are distinct parallels between ISIS destroying "idolatrous" statues and monuments and efforts here to topple "racist" ones, not the least the motivation to deprive certain groups of artifacts deemed important to their culture (there Shia, Assyrian Christians and Yazhdis and here poor White people (who must be racist!)).  At least here, we have processes in place to allow localities and States to make the decision what to do with our Confederate monuments.  What must be avoided at all costs is another Durham, N.C., where a mob was allowed to take matters into its own hands.   

Wednesday, August 2, 2017

Collectors Contest Lawless Seizure

The art law firm of Pearlstein, McCullough & Lederman LLP has brought an action to contest the seizure of an artifact on loan to the Met.  The New York Times has covered the seizure here.   Lost on the Times, however, is the concern that the NY District Attorney has lawlessly used a search warrant to seize and repatriate an artifact purchased in good faith.  

The lawyers for the collectors describe their action to quite title as follows.  

Beierwaltes v. Directorate General of Antiquities of the Lebanese Republic and the District Attorney of New York County is an important test case for the art market in general and the antiquities market in particular.

Our clients, Bill and Lynda Beierwaltes, bought an Archaic Greek marble Bull’s Head in 1996 from a London dealer who made representations about its provenance. In 2006, the Bull’s Head was exhibited publicly in Paris at a major art fair and published in a dealer’s catalogue. In 2016 the Bull’s Head was loaned to and exhibited by The Metropolitan Museum of Art. From excavation records published in Switzerland in 2005, the Museum concluded that the Bull’s Head was excavated at the Temple of Eshmun in Lebanon in the 1960s.

After Lebanon demanded restitution, the Beierwaltes filed a complaint in U.S. District Court for the Southern District of New York seeking declaratory judgment to clear title to the Bull’s Head. Although the Department of Justice declined to pursue a claim for civil forfeiture, the District Attorney of New York County seized the Bull’s Head pursuant to a search warrant and is now seeking to turn the Bull’s Head over to Lebanon. We thereafter amended our complaint to include DANY as a defendant in the federal case.

The twin actions present a number of issues that have not previously been resolved.

First, we believe that DANY’s position is ill-founded and that New York law does not provide for in rem forfeiture. DANY disagrees and believes that it can first seize and then turn over property in the absence of a criminal case.

Second, the relationship between the Beierwaltes’ suit in federal court for declaratory judgment and DANY’s procedure in New York state court for turnover is unclear. Which decision governs if the Beierwaltes prevail in federal court and DANY prevails in state court?

Third, we believe that the Beierwaltes’ title claim is meritorious: even if the Bull’s Head was stolen from Lebanon, the statute of limitations under Lebanese law has expired; Lebanon has no claim under the Convention on Cultural Property Implementation Act; there are no grounds for seizure under federal law; and New York state law supports the Beierwaltes’ claim on several grounds, including statute of limitations and laches.

The Beierwaltes are bona fide purchasers with clean hands. By contrast, for more than 50 years, Lebanon has failed take any action domestically or internationally to report any theft of the Bull’s Head, file a claim for its return or list the Bull’s Head on any publicly-accessible, international database of stolen art.

Under these circumstances, DANY’s focus on restituting the Bull’s Head to Lebanon based solely on theft would be contrary to U.S. law and policy and New York civil law. It remains to be seen whether DANY’s expansive interpretation of New York’s search and seizure law will prevail