Global Art and Heritage Law Series - United States Report (original) (raw)
2020, Committee for Cultural Policy - Global Art and Heritage Law Series
This report is one of a series of analyses of the national laws and international agreements on art and cultural property in nine nations: The United States, Italy, Nigeria, India, China, Bulgaria, Turkey, Peru, and Great Britain and Wales. It was prepared in collaboration with TrustLaw, the Thomson Reuters Foundation’s global, legal pro bono service that connects law firms and legal teams to non-governmental organisations and social enterprises that are working to create social and environmental change. This volume provides a summary of U.S. laws on cultural property, its ownership, transfer, import, export, and preservation. It covers U.S. domestic laws and policy on Native American and Native Hawaiian artifacts, archaeological sites, and their cultural landscapes. The report describes how, since passage of the Native American Graves Protection and Repatriation Act (NAGPRA) in 1990, Native Americans and Hawaiians may claim superior title to human remains and to archaeological and ethnological materials classified as sacred or as cultural patrimony in the collections of public museums and institutions receiving federal support. The report then examines the development of policies on international cultural property after Congress’ enactment of the 1983 Cultural Property Implementation Act (CPIA), the U.S. implementing legislation for the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The CPIA balanced U.S. interests in free trade and access to art, with source county claims to heritage and the need to protect archaeological sites from looting. In the CPIA, Congress reserved judgment on the scope of import restrictions to the U.S. Instead, the CPIA allowed targeted export restrictions on specific materials from threatened sites and required important market nations to act together to implement similar restrictions. The report describes the current operation of the CPIA, which has resulted in agreements restricting imports into the U.S. of virtually all cultural property from seventeen nations (in 2020 – twenty-seven nations in 2022) as well as similar legislative barriers applying to Iraq and Syria. It further describes how a federal theft law of general applicability, the 1934 National Stolen Property Act (NSPA), which makes it a crime to trade in stolen property, conflicts with and undermines key provisions of the CPIA. The NSPA has come to dominate cultural property law and policy in the U.S. after a line of criminal cases found that if a foreign country has enacted a valid law nationalizing ownership of cultural property, its removal constitutes theft and it becomes ‘stolen’ under U.S. law. In the U.S., “cultural property” is generally understood as objects of artistic, archaeological, ethnological or historical interest belonging to any human civilization or period. The very broad classifications of objects termed cultural property in the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970 UNESCO Convention) are used in the primary U.S. legislation, the CPIA. However, the U.S. itself has no “national cultural property.” The law rarely restricts private transfers of objects that other nations consider cultural property. While there are many artworks owned by federal, state and local government institutions, they are not in any sense inalienable. Lands and historic monuments may be acquired by federal or state governments and preserved for public use and benefit, but no movable objects have the legal character of “national heritage” as it is understood in some other parts of the world. In the U.S., cultural property is simply a form of property, governed by much the same laws that regulate ownership of other types of property. With the exception of Native American human remains, and certain objects from Indian and federal lands that are held to belong to indigenous communities and not to the U.S. government, virtually all artworks and artifacts may be privatively owned and publicly traded. There are no other restrictions on the export or trade of American art and artifacts except when they contain materials subject to U.S. environmental laws or international agreements such as the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES). There is also no U.S. legal concept of a protected “intangible cultural heritage.” Under U.S. law, rights to creation in literature, visual art, music and dance are protected under copyright; beyond the duration of copyright, the global intangible heritage is preserved by the efforts of hundreds of thousands of amateur enthusiasts, students, professional performers, folklorists, storytellers, researchers and dedicated cultural preservationists across the U.S. Protection of intangible cultural heritage comes from research, documentation, promotion, enhancement, transmission to others, and revitalization, not from statute. Given the U.S. population’s diversity, global heritage is American heritage. Historically, U.S. policies emphasized the free trade of cultural property for the public good. The U.S. has longstanding import policies encouraging the importation of modern and antique artworks, manuscripts, books, scientific, and other cultural objects by making such imports free of duty. The Educational, Scientific, and Cultural Materials Importation Act of 1966, Section 1(b) provides that “The purpose of this Act is to enable the United States to give effect to the Agreement on the Importation of Educational, Scientific and Cultural Materials… with a view to contributing to the cause of peace through the freer exchange of ideas and knowledge across national boundaries.” This Act made importation of “antiques made prior to 100 years before their date of entry” duty free, and enabled duty free importation of “[e]thnographic objects made in traditional aboriginal styles and made at least 50 years prior to the date of entry.” Even earlier, in 1930, Congress had exempted antiquities and art objects made before 1830 from duty in order to encourage the free flow of artistic and cultural materials into the U.S. Thus, the U.S. exempted antiques from duty as a matter of public policy before the UNESCO Florence Agreement of 1952, which also was intended to “facilitate the free flow of educational, scientific and cultural materials by the removal of barriers that impede the international movement of such materials.” The free trade policies of the past are still reflected in customs duties allowing free entry of art, antiques, books and manuscripts into the U.S. In the 21st century, the pendulum of U.S. cultural property policy has swung away from the goals of free trade and public access to art toward a broad enforcement of foreign national patrimony laws (even those which would not meet Constitutional standards if enacted in the U.S.) and a reconsideration of historical policies allowing free export of privately owned U.S. art and cultural heritage around the world. If American cultural property law and practice is neither consistent nor coherent today, there is even greater uncertainty about the future.