Heritage of Law: McClain at Forty-Five

October 31, 2022

By Kelly Cannici 

Forty-five years after the Fifth Circuit Court of Appeals decided United States v. McClain,^[1] the case remains a towering presence in U.S. cultural property law. Taken in conjunction with its most notable progeny, United States v. Schultz,^[2] the verdict rendered in McClain provided the foundation for a set of standards that have formed the basis of cultural patrimony and provenance decisions in U.S. courts almost since heritage litigation began. Since the onset of the twenty-first century, these standards—henceforth referred to as the McClain Doctrine—have been applied to four cases of particular relevance to the field of cultural heritage protection. The eldest, United States v. Portrait of Wally,^[3] is part of the ever-expanding lineage of cases dealing with the repatriation of Nazi-appropriated art surrounding World War II. The other three cases all address the increasingly salient issue of illegal importation of cultural heritage artifacts to the United States for sale on the art market.

The McClain Doctrine

Before addressing these cases, it is important to take a moment to discuss the McClain Doctrine itself. At issue in McClain was whether the United States should recognize foreign patrimony laws relating to cultural artifacts, and if so, how. The arena for this debate was the importation of a number of pre-Columbian artifacts by the defendants from Mexico to the United States and their subsequent sale to an undercover FBI agent.^[4] The defendants never disputed that the items had been exported from Mexico in violation of that country’s exportation laws.^[5] Instead, they contested the U.S. government’s assertion that the artifacts qualified as having been stolen from Mexico due to the existence of a 1934 statute granting the Republic of Mexico de facto ownership of all pre-Columbian artifacts recovered within its borders.^[6] The law was subsequently reinforced by two additional statutes, passed in 1970 and 1972, respectively, that clarified and expanded the government’s patrimony claims.^[7]

Given Mexico’s substantial history of legislation granting the government ownership of cultural heritage objects, the court ultimately found in favor of acknowledging the country’s ownership of the contested artifacts.^[8] Combined with the export restrictions then in force on Mexican archaeological items, the Fifth Circuit found that the items could be considered stolen under the definition of the National Stolen Property Act (NSPA).^[9],^[10] Though the NSPA had previously been considered with reference to cultural property in United States v. Hollinshead,^[11] McClain marked the first direct application of the statute and was to become a watershed in the government’s approach to illegally imported antiquities.

From this determination, the McClain Doctrine was developed. Though no explicit enumeration of the Doctrine exists in the case law, it is generally articulated as three to four guidelines based on the McClain decision and its progeny. Cumulatively, the McClain Doctrine states that for an artifact to be considered stolen under the NSPA and recognized in U.S. courts, the following standards must apply:

1. The cultural patrimony law(s) of a foreign nation must be more than merely export restrictions; it must clearly and unambiguously establish national ownership on its face and must be enforced domestically.
2. The contested object must have been found within the modern territorial boundaries of the nation claiming ownership.
3. The object must have been located within the country at the time the ownership law was enacted, so that removal claimed as unlawful must have occurred after the patrimony law took effect.^[12]

Testing the Waters: United States v. Portrait of Wally (2000)

Despite increased interest in the illegal importation and exportation of cultural heritage artifacts in the late twentieth century, the McClain Doctrine was not applied in U.S. courts again until 2000, when the federal court in the Southern District of New York (S.D.N.Y.) decided United States v. Portrait of Wally. The facts of Wally diverge somewhat from those presented in McClain. In Wally, the United States was seeking forfeiture of an Egon Schiele painting then in the possession of the Museum of Modern Art (MoMA), on loan from the Leopold Museum-Privatstiftung in Austria. The U.S. government alleged that the painting had been stolen from its owners during the Nazi takeover of Austria in 1938-39 and consequently contended that the painting’s importation to MoMA was in violation of the NSPA, which prohibits the importation across state and national lines of stolen property.^[13]

In making its case for forfeiture, the United States relied on the decision reached in McClain, its subsequent appeal, referred to as McClain II,^[14] and the controlling power of Austrian law.^[15] The deciding court found fault with this application, reasoning that,

The McClain cases do not hold that § 2314 applies to items that are “classified as stolen under [the relevant body of local] … law[].” (Gov’t Mem. at 66-67) (emphasis added) Rather, the cases hold that if the federal law definition of “stolen” is satisfied, § 2314 applies to items that are classified as owned — i.e., as property — under local law.^[16]

The court noted that a critical element of the NSPA is whether the defendant has knowledge that contested goods were stolen.^[17] Finding that MoMA was unaware of the disputed origins of the painting, the S.D.N.Y. ruled that the McClain decision was not applicable and denied the government forfeiture.^[18] However, the opinion in Wally nevertheless contributed to the ongoing development of the McClain Doctrine. In its reasoning, the court determined that,

Under both the McClain cases … federal law controls the question of whether an item is stolen, and local law—Mexican law in McClain … —controls the analytically prior issues of (a) whether any person or entity has a property interest in the item such that it can be stolen, and (b) whether the receiver of the item has a property interest it. These issues are wholly distinct from the question of the conditions under which a once-stolen item ceases to be stolen. The answer to the latter question is determined by federal law and not local law, and the doctrine applies.^[19]

Expansion: United States v. Schultz (2003)

Further elaboration of the McClain Doctrine would continue three years later in United States v. Schultz, the next case to consider the application of the NSPA to cultural heritage items. The issues in Schultz bear a much greater resemblance to those in McClain than did the conflict presented in Wally, so it is perhaps not surprising that Schultz, instead of Wally, is often cited alongside McClain as one of the foundational instances of U.S. cultural property litigation. In 2001, New York art dealer Frederick Schultz was indicted for conspiring to receive stolen Egyptian antiquities that had been transported internationally and across state lines in violation of the NSPA.^[20] Although Egypt had enacted a national patrimony law in 1983, Schultz argued that the statute, known as Law 117, did not confer ownership on the Egyptian government but was an export restriction only, thus rendering the McClain Doctrine inapplicable.^[21] The Second Circuit court denied this argument, finding that a plain reading of the law clearly conferred “clear and unambiguous” ownership rights on the Egyptian government.^[22]

However, the plaintiff further held that even if a foreign government could be shown to have legal ownership of cultural property items under their own laws, the validity of such ownership should not be recognized by U.S. courts for purposes of enforcing the NSPA. The court found this argument spurious as well, asserting that, “Just as the property need not be stolen in the United States to bring the NSPA into play, the fact that the rightful owner of the stolen property is foreign has no impact on a prosecution under the NSPA.”^[23] Consequently, the court upheld the standard established in McClain, holding that “the NSPA applies to property that is stolen from a foreign government, where that government asserts actual ownership of the property pursuant to a valid patrimony law.”^[24]

Continuing Forward: United States v. One Tyrannosaurus Bataar Skeleton (2012) and United States v. 10^th Century Cambodian Sandstone Sculpture (2013)

Despite the decisive precedent set by McClain, Wally, and Schultz, the issue of whether or not an artifact imported into the U.S. from a foreign country can be properly construed as stolen under the NSPA was also central to the defendants’ arguments in two cultural property cases within the last decade.

United States v. One Tyrannosaurus Bataar Skeleton^[25] and United States v. 10^th Century Cambodian Sandstone Sculpture,^[26] both argued before the S.D.N.Y., saw the defending counsels contend that the U.S. government was unable to adequately prove that the items for which the United States was seeking forfeiture had been stolen from their countries of origin. In each instance, the defendants argued that the patrimony laws of the foreign governments in question (Mongolia in One Tyrannosaurus Bataar Skeleton and Cambodia in 10^th Century Cambodian Sandstone Sculpture) did not grant the nations ownership based on a plain reading of the statutes, a position that nullified the U.S. government’s attempt to apply the McClain Doctrine to each scenario. In One Tyrannosaurus Bataar Skeleton, the defendant further maintained that under the McClain Doctrine (here cited as it appeared in Schultz), the mere existence of a statute granting Mongolia ownership of cultural property was insufficient for establishing the artifact at issue as stolen. Mongolia must also actively enforce its claim.^[27] In response, the S.D.N.Y. determined that enforcement is not necessary for establishing a claim to ownership, finding that “the government need not plead active enforcement of these laws in order to state a plausible claim for relief where, as here, the foreign statutes pleaded in the complaint appear on their face to vest title in the Defendant Property in a foreign state.”^[28]

This decision was reiterated a year later when the court’s determination was used to clarify a similar issue in 10^th Century Cambodian Sandstone Sculpture. The defendant claimed that the law granting the Cambodian government artifact ownership had been enacted under a prior colonial government and alleged that there was no evidence “demonstrating that Cambodia has ever enforced the colonial decrees relied upon by the Government.”^[29] The Court responded by pointing out the decisions in McClain, Schultz, and One Tyrannosaurus Bataar Skeleton and finding that the existence of an ownership statute was again sufficient to provide a basis for categorization of the artifact as stolen and thus to apply the NSPA.^[30]

Conclusion

The expanding application of the McClain Doctrine to cases dealing with the forfeiture of heritage objects clearly illustrates the central role of McClain in cultural property litigation in the United States. Despite being subject to occasional modification since its genesis forty-five years ago, the McClain Doctrine remains a powerful force in U.S. cultural heritage cases and one that is certain to continue to shape the future of heritage materials imported to this country.

Suggested Reading:

• Matthew H. Birkhold, “The Indigenous McClain Doctrine: A New Legal Tool to Protect Cultural Patrimony and the Right to Self-Determination.” 97 Wash. U.L. Rev. 113, 2019.
• Michael Dearman, “Intractable Problems and Modest Solutions: The Illicit Antiquities Trade Between the U.S. and Mexico.” 41 Hous. J. Int’l L. 413, 2019.
• Patty Gerstenblith, “Provenience and Provenance Intersecting with International Law in the Market for Antiquities.” 45 N.C. J. Int’l L. 457, 2020.
• William R. Ognibene, “Lost to the Ages: International Patrimony and the Problem Faced by Foreign States in Establishing Ownership of Looted Antiquities.” 84 Brook. L. Rev. 605, 2019.
• United States v. Hollinshead, 495 F. 2d 1154 (United States Court of Appeals, Ninth Circuit, Apr. 11, 1974).
• Paige L. Margules, “International Art Theft and the Illegal Import and Export of Cultural Property: A Study of Relevant Values, Legislation, and Solutions.” 15 Suffolk Transnat’l L.J. 609, 1992.

About the Author

Kelly Cannici is currently pursuing her master’s degree in Cultural Heritage Management at the University of York. She received undergraduate degrees in Anthropology and German Studies from Montana State University and is a staunch proponent of interdisciplinary collaboration as the most effective way to protect cultural property.

1. United States v. McClain, 545 F. 2d 988 (United States Court of Appeals, Fifth Circuit, Jan. 24, 1977). ↑

2. United States v. Schultz, 333 F. 3d 393 (United States Court of Appeals, Second Circuit, Jun. 25, 2003). ↑
3. United States v. Portrait of Wally, 105 F. Supp. 2d 288 (S.D.N.Y. Jul. 19, 2000).↑
4. McClain 545 F. 2d 988 at 990. ↑
5. McClain 545 F. 2d 988 at 992 ↑
6. 82 Diario Oficial 152, 19 de enero de 1934. Cited in McClain 545 F. 2d 988 at 998, footnote 19. ↑
7. McClain 545 F. 2d 988 at 999-1000. ↑
8. McClain 545 F. 2d 988 at 1001. ↑
9. 18 U.S.C. § 2314-15 ↑
10. McClain 545 F. 2d 988 at 1009-1010. ↑

11. United States v. Hollinshead, 495 F. 2d 1154 (United States Court of Appeals, Ninth Circuit, Apr. 11, 1974). ↑

12. Adapted from Gerstenblith, Patty, “Provenience and Provenance Intersecting with International Law in the Market for Antiquities.” 45 N.C.J. Int’l Law 457, 2020, and Birkhold, Matthew H., “The Indigenous McClain Doctrine: A New Legal Tool to Protect Cultural Patrimony and the Right to Self-Determination.” 97 Wash. U.L. Rev. 113, 2019. ↑

13. Wally 105 F. Supp. 2d at 289-290. ↑

14. United States v. McClain, 593 F. 2d 658 (United States Court of Appeals, Fifth Circuit, Apr. 23, 1979). ↑

15. Wally 105 F. Supp. 2d at 291. ↑

16. Wally 105 F. Supp. 2d at 292. ↑

17. Id. ↑

18. Wally 105 F. Supp. 2d at 294. ↑
19. Wally 105 F. Supp. 2d at 292. ↑
20. Schultz 333 F. 3d at 395. ↑
21. Schultz 333 F. 3d 393. ↑
22. Id. ↑
23. Schultz 333 F. 3d at 403. ↑
24. Schultz 333 F. 3d at 416. ↑
25. United States v. One Tyrannosaurus Bataar Skeleton, 12 Civ. 4760 (PKC), 2012 U.S. Dist. LEXIS 165153; 2012 WL 5834899 (S.D.N.Y. Nov. 14, 2012). ↑
26. United States v. 10^th Century Cambodian Sandstone Sculpture, 12 Civ. 2600 (GBD), 2013 U.S. Dist. LEXIS 45903; 2013 WL 1290515 (S.D.N.Y. Mar. 28 2013). ↑
27. One Tyrannosaurus Bataar Skeleton, 12 Civ. 4760 (PKC) at 8 ↑
28. Id. ↑
29. 10^th Century Cambodian Sandstone Sculpture, 12 Civ. 2600 (GBD) at 6 ↑
30. Id. ↑

See Red List prepared by ICOM.