Commentary: The Stake in the Schultz Trial

By Steven Vincent

The question of cultural patrimony, or who has the right to own and exhibit the artefacts of other nations, is already one of the most highly vexed issues in the art world. It will become even more contentious with the trial of New York antiquities dealer Frederick Schultz, which is scheduled to begin on 28 January. A federal indictment brought against Schultz last July accused him of conspiring with an accomplice to `possess, conceal, store, barter, sell and dispose of' Egyptian antiquities which the government maintained were looted from the `source' nation and brought into the United States in violation of local stolen property laws. Although at the time of writing the outcome was still unknown, it is clear that whatever the verdict, United States vs Frederick Schultz will have major repercussions on US laws regarding ancient and ethnographic objects, as well as the future of private and public collections which exhibit such treasures. `This case is extremely important,' Patty Gerstenblith, professor of law at De Paul University in Chicago, told me recently. Gerstenblith, a frequent critic of the trade, believes a Schultz conviction `could help stem the looting of archaeological sites by clarifying the law regarding cultural objects as it pertains to New York, the heart of the antiquities market.' But others believe that by putting Schultz behind bars, Uncle Sam would signal that no collector of antiquities, whether a private individual or an institution, can feel entirely safe. `If the government's prosecution of Schultz is successful,' said pro-trade attorney Richard A. Rothman, `it could put dealers, collectors and museums at risk of prosecution, even when they have bought and owned objects in compliance with the laws of the United States.' To understand why this trial is so significant, we have to take a quick look at its background. Schultz is the well-respected president of Frederick Schultz Ancient Art, a former head of the National Association of Dealers in Ancient, Oriental and Primitive Art (who resigned last spring partly because of the threat of indictment) and an active defender against charges that the antiquities trade stimulates the looting of archaeological sites. His unindicted `co-conspirator' - and probable main accuser - is Jonathan Tokeley-Parry, a renowned English antiquities restorer who was convicted in England in 1997 for attempting to smuggle artefacts from Egypt. Tokeley-Parry was released from prison in 2001, after serving only half of his six-year sentence. According to the US government, from 1990 to 1994, Tokeley-Parry travelled to Egypt where he purchased antiquities which `farmers and builders' allegedly discovered in the ground. In violation of Egyptian Law 117 which claims state ownership of antiquities found inside the country after 1983, Tokeley-Parry removed these objects from Egypt and sold or consigned them to Schultz. The objects included the head of Pharaoh Amenhotep III (said to have been sold to a `person in London' for US$1.2 million), a Sixth dynasty limestone statue, a faience votive figure and a stele. In an attempt to obscure the objects' provenance, Schultz allegedly told prospective buyers that they were from the Thomas Alcock Collection, dating from the 1920s. The US government claims that Schultz violated the National Stolen Property Act, which makes it a federal offence to transport, receive or conceal `foreign commerce goods known to be stolen'. And here we come to the crux of the matter. Even assuming the facts of the indictment are true (which, given Tokeley-Parry's chequered past, is not a sure thing), how do objects removed from Egypt in violation of Egyptian law become `stolen' once they enter America? Doesn't this mean, in effect, that US prosecutors are enforcing foreign laws which assert state ownership of objects, a claim that contradicts Western rights of private property? What body of US law justifies this prosecutorial zeal? These controversies, long underlying American laws which regulate the antiquities trade, are precisely the issues both supporters and antagonists of the trade hope the Schultz trial will resolve. The basis for the government's claim that Schultz handled stolen property rests on a single and highly controversial 1977 ruling, United States vs. McClain. A federal court in New Orleans had applied Mexican rather than American law to define what constituted stolen property, in this case archaeological items, and to uphold the conviction of an appraiser, Patty McClain, for `conspiring to transport' pre-Columbian material from Mexico to Texas. For trade supporters, the ruling was a disaster. According to pro-trade New York lawyer William Pearlstein: `It placed US courts in the position of upholding the cultural property statutes of a foreign nation, while placing inordinate power in the hands of government prosecutors and law enforcement agencies.' To trade critics, especially those who link the collecting of antiquities with looting, the ruling was reasonable and appropriate. As Nancy C. Wilkie, president of the Archaeology Institute of America (AIA), once told me: `The AIA supports the concept that objects looted from foreign nations and brought into the US are considered by US courts as stolen property. We believe it helps deter would-be looters.' To date, the scope of McClain has not been successfully challenged. Now, however, trade supporters hope that, along with proving the innocence of a respected colleague, a Schultz acquittal will narrow the McClain ruling and prevent it from casting a deeper shadow on the antiquities trade, especially at its centre, New York. (Trade critics, of course, hope that a Schultz conviction will confirm McClain's legitimacy and make it impervious to future legal challenges.) Does this mean that the trade believes no laws should govern the importation of cultural objects into the US? No. Many feel the fairest means to halt illegal imports into the US is the 1983 Cultural Property Implementation Act (CPIA). Why is the CPIA more acceptable to the trade than McClain? Because, rather than relying on foreign nations' definitions of `stolen' property, the CPIA requires importers of certain ethnographic or archaeological material to obtain export licenses from the nation of origin - but only those nations which have previously entered into a bilateral agreement with the US. Such agreements generally last around five years (but can be extended); the foreign nation must document, among other things, the seriousness of its looting problem, as well as its own efforts to stop it. Currently, several countries, including Canada, Guatemala and Mali have such agreements. But Egypt does not; this means that if the court strikes down McClain in favour of the CPIA, Schultz could very well be found not guilty. A clear victory for pro-trade forces would consist of a Schultz acquittal, leading to a narrowing of McClain and a definitive ruling from the court confirming the CPIA as the law of the land regarding America's cultural policies. While a decisive win for archaeologists and other trade critics would strengthen McClain's reach over New York and confirm the ruling as a necessary complement to the CPIA. (Few archaeologists I've spoken with actually want to see Schultz put in jail - but it is nevertheless true that a conviction would remove from further debates an attractive, energetic and effective opponent to their jihad against antiquities collecting.) Either way, the Schultz trial will quite likely define how far the American judiciary is willing to let the US government go in regulating the antiquities trade - and what legal weapons federal prosecutors can use.