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Golden Phiale Appeal Volume 51 Number 6, November/December 1998
by Andrew L. Slayman

[image] Disputed $1.2 million phiale (© 1997 Ira Block) [LARGER IMAGE]

Oral arguments over financier Michael Steinhardt's appeal in the case of a gold bowl claimed by Italy were scheduled to be heard this fall. Steinhardt bought the bowl in 1991 for $1.2 million; when the Italian government discovered that it had apparently been exported in violation of Italy's cultural property laws, it sought the Justice Department's help in getting the bowl back (see "The Case of the Golden Phiale," May/June 1998). Last November the government won a forfeiture order in federal court, but Steinhardt appealed the decision.

Of central importance, because of its implications for future repatriations, is whether items removed in violation of foreign laws establishing national ownership of archaeological remains count as stolen, and thus are subject to U.S. laws assuring restitution of stolen property. Two court cases in the 1970s, U.S. v. McClain and U.S. v. Hollinshead, set the precedent that such items are stolen as long as the foreign law states clearly that the country owns the archaeological remains concerned; export controls by themselves are not enough.

The district court followed this precedent in ruling that the phiale be forfeited. In the appeal, Steinhardt's lawyers point out that both cases were decided before Congress enacted in 1983 the Cultural Property Implementation Act (CPIA), which ratified portions of the 1970 UNESCO convention. They argue that in the CPIA Congress set forth the country's full policy on cultural property, which supersedes McClain and Hollinshead. While the CPIA itself does not say whether the U.S. will honor foreign found-in-the-ground laws, the Senate Finance Committee's report on it notes that "U.S. actions need not be coextensive with the broadest declarations of ownership...made by other nations." Thus, argue Steinhardt's lawyers, such declarations may not be used as a basis for repatriation.

The American Association of Museums leads a coalition of museum organizations supporting Steinhardt, while the Archaeological Institute of America leads a similar coalition of scholarly and preservation groups supporting Italy's claim. In its brief, the AIA points out that other parts of the Finance Committee's report note that the CPIA "neither pre-empts State law in any way, nor modifies any Federal or State remedies that may pertain to articles to which [the act's] provisions...may apply." In 1983 and 1985, bills were introduced in Senate committees that would have excluded antiquities claimed pursuant to national declarations of ownership from the purview of the National Stolen Property Act (NSPA); neither was enacted. Furthermore, since the CPIA became law federal courts have followed McClain and Hollinshead in at least four cases. Thus, argues the AIA, no statute precludes using the NSPA for such repatriations, while available case law supports it.

Whether Italy's cultural property laws are explicit enough is for the court to decide. Italy, the U.S. Attorney's Office, and the AIA say that Italy's law is sufficiently clear; Steinhardt says that it is not. That the matter is debated, however, should serve as a warning to all countries that their laws should be totally unambiguous.

* For more photographs of the phiale, see "The Phiale of Achyris."

© 1998 by the Archaeological Institute of America