WYWH: Lawyers’ Committee on Cultural Heritage Protection 10th Annual Conference

April 23, 2019

By Louise Carron.

On April 5^th, 2019, the Lawyers’ Committee on Cultural Heritage Protection (“LCCHP”) held its tenth annual conference at the Georgetown Law Center in Washington DC, on the topic of contemporary perspectives on cultural heritage.

Panel 1. Technological and Legal Advances in Using and Preserving Cultural Heritage

After a few opening remarks by Professor Sonya G. Bonneau, professor of Legal Practice at Georgetown Law, and Tom Kline, Partner at Cultural Heritage Partners and President of the LCCHP, the day started with a first panel on technological developments and their application to cultural heritage.

The first panelist, Eleanore Fink, founder of the American Art Collaborative, presented her work towards creating a network of institutions, including museums and law enforcement agencies, using link open data (“LOD”). The goal is to connect data, harmonize information about artifacts and collections, for more visibility and cooperation, and to share best-practices between museums, archives, and libraries.

Richard Landau, from the government contractor company M20 Associates, continued the conversation by explaining the differences between the surface web, where information is indexed and searchable through Google, Yahoo, Bing, and others; the deep web, which is comprised of “protected” information, such as access to banking details which require a login; and the dark web, where everything is encrypted and anonymous. Unsurprisingly, the dark web is the perfect platform for conducting illegal transactions and illicit trafficking, including firearms, drugs, and cultural artifacts. At M20, the “tech-geniuses” are trained to trace artworks on the dark web and report the information back to the government, which can lead them to uncover money laundering or activities financing terrorism.

Katie Paul followed those remarks as co-director the ATHAR Project tracking cultural property sold on Facebook. It is more and more common that closed Facebook groups offer “loot-to-order” artefacts stolen from historical sites in the Middle-East to finance terrorism. Sadly, some of those artifacts end up in the hands of art dealers in Europe and the United States. While it is now undoubtable that Facebook needs to better their content policy and control, the platform has the advantage of providing “digital leashes,” including proof of location of the artifacts being sold, and information about the seller and buyer – although they almost always create fake accounts for that exact purpose.

Speaking of digital, Nanne Dekking closed the panel by presenting Artory, its founder and CEO. Artory is a digital registry for artworks using Blockchain technology; it stemmed from Mr. Dekking’s experience as an art dealer and from the firm belief that information should live with the piece of art, that provenance should follow the artwork or artifacts. The database aggregates information gathered by auction houses and museums: they are currently working with Christie’s, and negotiating with Sotheby’s and the Boston Museum of Fine Arts, to make their data public and accessible. Blockchain has the advantage of providing a timestamped and immutable record – which brings the question of what happens if the information is wrong. The answer is: create a new record. Aiming to be an entity trusted by auction houses, dealers, and private collectors, Artory strived to be as close as a title registry as the art world can get.

The panel concluded that there is a great need for lawyers with a privacy and tech background, and with an interest in protecting tangible and intangible property.

Keynote address

In a moving keynote address, Dr. Richard Kurin, Smithsonian distinguished scholar and Ambassador-at-Large presented the Smithsonian’s projects in protecting and encouraging the resolution of crises involving cultural heritage. It started in Haiti, following the earthquake, with the Haiti Culture Recovery Project, which strived to recover artworks buried in the ruins; as a result, 35,000 artworks and artifacts were saved, working in collaboration with the UNESCO and UN Troops. The project then expanded to conflicts in the Middle East and Asia, including the war zones in Nepal, Mali, Egypt, and Iraq, where volunteers? provide training and workshops to local populations on how to preserve and protect their treasures.

Panel 2. The Unites States Cultural Heritage Coordinating Committee: Federal Law Enforcement’s Role 

In 2016, the Protect and Preserve International Cultural Property Act[i] created the Cultural Heritage Coordinating Committee (“CHCC”), which aims at coordinating “diplomatic and law enforcement efforts to combat antiquities trafficking, disrupt trafficking networks, and protect against the looting and destruction of cultural property around the world.”[ii] More than 12 government agencies are within the scope of the CHCC, including the Department of State, the Department of Homeland Security, the Department of Justice, and the Smithsonian Institution. Composed of three working groups, namely Technology, Public Awareness and Outreach, and the Cultural Antiquities Task Force, the CHPP works towards focusing the federal organs on the common cause of fighting against trafficking of cultural artifacts. Speakers, who represented the FBI Art Crime Team and the Homeland Security Investigations team emphasized the importance of communication between agencies and with the general public, as well as the role and power of attorneys in protecting cultural heritage. Since the United States does not have a ministry of culture, the CHCC would be the closest entity.

Panel 3. European Colonial Expropriation and Claims for Repatriation: A New Paradigm for Analyzing Historic Takings

The third panel of the day tackled the restitution of colonial artifacts, and the Sarr-Savoy Report published by two French art historians last year.[iii] Michael McCullough, partner at Pearlstein, McCullough & Lederman LLP, explained the background and content of the report. The collections of French museums such as the Musée du Quai Branly, the Musée de l’Homme and the Palais de la Porte Dorée are currently comprised of artifacts seized during the colonial era from countries such as Benin, Guinea, and Congo. France was believed to be the only place where those works of art could be properly preserved and showcased during the XIXth century, which Patty Gerstenblith, distinguished research professor at DePaul University College of Law and founding president of LCCHP, called an “act of rescue and stewardship [by the French Empire] to show superiority.” In November 2018, the Sarr-Savoy Report called for the restitution of those artifacts to the originating countries, and for more transparency regarding the provenance of those items, which may have been seized in military context or donated by private collectors from the colonies. From a legal perspective, the Report is controversial due to the rule that museum deaccessioning is not authorized in France, resulting in the inalienability of their collection.[iv] Some people would also argue that the objects have become part of the Western countries’ national identity, and the objects would be more suited in Western museums, where they can be protected and showed to the rest of the world.

However, as art historian Diala Touré, Ph.D. explained, the narrative is quite different for the countries where the artifacts were seized. “Missionaries” often obtained possession by transgression in the name of the French Republic, resulting in a “colonial harvest” taking traditional symbols and cultural value away from the tribes and local populations. From an international perspective, the Report forces other museums and states to rethink their position in assessing the cultural or religious value of artifacts. While the Sarr-Savoy Report sheds light on these troubled times and the potential solutions for public collections, these principles should also apply to private sales. There is still a long way to go…

Panel 4. Native American Sacred Spaces, Objects, and Relationships

However, it is not too late to protect and preserve Native American lands and objects. The final panel of the day, led by Greg Smith (Partner at Hobbs, Straus, Dean & Walker, LLP), started with Governor Tim Menchego, coordinator at the Tribal Historic Preservation Office for the Pueblo of Santa Ana, located in New Mexico. As the tribe leader of the people of Tamaya, Governor Menchego emphasized the power of traditional knowledge and passing down information to preserve their history and land, while encouraging cooperation with the U.S. government to help rewrite laws and procedures applicable to Native American tribes. Marion Werkheiser, founding partner at Cultural Heritage Partners, explained the legal issues surrounding indigenous land. as real estate, oil, and gas development sometime take place on locations of importance to Native Americans, Section 106 of the National Historic Preservation Act of 1966 (“NHPA”) requires that developers consult with tribes if they engaging in a “federal undertaking,” e.g. they are seeking to build on federal land, or to receive federal funding.[v] However, the current law is not enough, as consultation does not mean getting the tribes’ consent but mere survey, and as the process is seldom triggered – seeing as the federal government may not be involved in the project at all. Building on Native American land is a risk for developers – we think of the Dakota Access scandal. Additionally, Native Americans’ protected federal land also recently shrunk – we think of Bears Ears. However, there are stories of successful, early, and frequent consultations, such as the Ruby Pipeline, which only underlines that we need to encourage voluntary behavior and the creation of guidelines or standards across industries.

Aside from land, Native American artifacts are the subject of The Safeguard Tribal Objects of Patrimony Act, a congressional bill known as the STOP Act, which proposes to make it illegal to export Native Americans works of art, the sale of which is currently prohibited on American soil. As explained by Maya Hermann, U.S. Senator Martin Heinrich’s legislative assistant, the STOP Act was received a push forward after the Acoma Shield story, where a stolen ceremonial shield was sold at auction in France and returned to the Pueblo of Acoma with the help of federal authorities, which grew public support in favor of the bill. The Act outlines criminal penalties, export certification procedures, and would create a federal working group to return artifacts to tribes after litigation or prosecution.

Conclusion

If this entire conference could be summed up in one sentence, it would be in the words of Governor Tim Menchego: “We protect the past, in the present, for the future.”

Ms. Carron would like to thank Tom Kline and Mahsa Javid for graciously inviting her to this year’s LCCHP annual conference. We look forward to next year’s gathering at Fordham Law School (NY).

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[i] Protect and Preserve International Cultural Property Act, Pub. L. No. 114-151. (2016)

[ii] Bureau of Educational and Cultural Affairs, Cultural Heritage Coordinating Committee. Available here.

[iii] Felwine Sarr and Bénédicte Savoy, The Restitution of African Cultural Heritage. Toward a New Relational Ethics (Nov. 2018). Available here.

[iv] Code du Patrimoine, article L. 451-5.

[v] National Historic Preservation Act, Pub. L. No. 102-575 (1966)