Museums’ Property Claims Are Not Simply About Evidence
By TOM MASHBERG
Published: July 1, 2013
The decision by the Metropolitan Museum of Art to return two ancient Khmer statues to Cambodia last month, less than a year after their ownership was challenged, shows how quickly museums can act on cultural property claims in an era when source countries are far more demanding.
More typical are disputes like one between Turkey and the J. Paul Getty Museum in Los Angeles over a fifth-century bronze bed known as a Lydian kline, which has been an item of contention since 1995.
Last year two scholars, whose research was supported by the Getty, found that the bed was likely looted from Turkey in the 1970s. The Getty has called the findings intriguing but “circumstantial” and said it hopes to continue talks with Turkey while awaiting “more secure and compelling evidence.”
Is the disparity in time — some cases resolved quickly, others unsettled for decades — simply a matter of which countries present the more convincing evidence?
Hardly, according to experts who say the calculus of repatriation involves less cut-and-dried measures like the outlook of the museum and its board, the institution’s public relations needs at the moment, the identity of the donor of the disputed item and even the identity of the country that is asking for its return.
In dealing with the Met, Cambodia was diplomatic, made a targeted claim and reacted to the return with effusive praise. Both sides also saw an opportunity to strengthen their ties, and Cambodia has agreed to a major Khmer exhibition at the Met next year.
The Turks have been more ambitious and strategic in their demands, refusing to participate in loan exhibitions with several museums under a tactic that some officials have compared to blackmail. In the case of the Getty, officials there say the Turks first questioned the museum’s ownership of several dozen items without providing any backup, then cut that number in half.
“Our experience with these requests does not give us confidence in their merit,” said James Cuno, the Getty’s president.
And it is not clear, Getty officials say privately, that simply returning the bed will do much to sate Turkish interest in a host of other items.
For their part, Turkish officials have said characterizations of their repatriation requests as aggressive and unsupported by the evidence are self-serving.
Even as Western museums have grown more receptive to cultural property challenges in the last decade, they remain bound by fiduciary obligations, ethical principles and burdens of proof that can vary by institution.
“Museums must untangle a lot of knots before making such an irrevocable decision,” said Stephen K. Urice, a professor and expert on cultural heritage law at the University of Miami School of Law in Florida.
The stickiest question is what constitutes proof positive that a holding violates the intent or spirit of
But there is a wide latitude in what constitutes solid proof or how to interpret phrases like “normally should not,” according to experts like Ricardo A. St. Hilaire, a cultural heritage lawyer. He said the lack of “a clear evidentiary or procedural standard that universally guides provenance investigations at museums” contributes to uneven decision making among institutions.
In one case last September, the University of Pennsylvania Museum of Archaeology and Anthropology agreed to a Turkish request to return 24 gold pieces. They were sent back on indefinite loan. Among the evidence the museum relied on was a speck of soil lodged in a pendant that matched a site known to have been illegally excavated.
The museum had acquired the items in 1966, which is in accord with the museum association guidelines, but the return was also based on other factors, including assurances that the university can continue excavations in Turkey and hold an exhibition of new artifacts dug up from royal tombs.
A similar interest in building a relationship to support future loans played a role in the decision by the Getty last January to repatriate a stone “Head of Hades“ to the Archeological Museum in Aidone, Italy. Getty officials were swayed by the discovery of fragments of curls from the head near Morgantina, Sicily, which the museum said was the site of illegal excavations in the late 1970s.
Many antiquities in museums do not have unbroken chains of custody stretching back to the moment they left a source country. In some cases, the absence of records may well be evidence that they were exported illegally. In other cases, it may only show that until recently many ancient items changed hands without copious documentation because challenges to ownership were infrequent.
In such instances, the decision to return an item — or not — may require research to find, for example, that it had passed through the hands of a dealer with some history in the illicit trade. Still, the evidence will often be far from definitive, meaning many decisions become judgment calls.
“The act of returning is based on an ethical judgment informed by evidence but not necessarily by a ‘smoking gun,’ “ said Maxwell L. Anderson, director of the Dallas Museum of Art and chairman of Association of Art Museum Directors’ task force on archaeological materials and ancient art.
In 2011, the Museum of Fine Arts, Boston, agreed to return the top half of an 1,800-year-old statue,
The decision to return was delayed by other issues: The museum shared ownership of the piece with collectors until 2003, and restitution was opposed by the longtime curator of its classical antiquities department, who died in 2008. Since then the museum has become among the most active in returning acquisitions with dubious paper trails.
“As we strive for greater diligence today, these past acquisition mistakes provide our greatest learning tool,” Victoria Reed, the museum’s curator for provenance, said in an e-mail.
The Justice Department, acting on behalf of Egypt, said that it has sufficient evidence to compel the St. Louis Museum of Art to return an ancient Egyptian burial artifact, the Mask of Ka-Nefer-Nefer. The museum bought the mummy mask for $500,000 in 1998. The government contends in court, where it has sued the museum to secure the object’s return, that it was stolen from a storage case in the 1950s, and that the dealer who sold it to the museum has a history of trafficking in illegally obtained objects.
The museum’s director, Brent R. Benjamin, said that the institution “takes seriously any suggestion that it illegally or improperly possesses any object,” but that it is the rightful owner.
Museum officials said that as they ponder the validity of claims, they must also weigh their financial duty to trustees, donors and the general public, which supports such collections through tax benefits and sometimes direct government support. One worry of theirs is that a return based on noble sentiments, but scattershot evidence, only opens a museum to a time-consuming flurry of similarly meritless demands.
Still, if keeping an object threatens to “damage a museum’s reputation,” a director might well decide the “best course of due diligence would be to return it,” said Arthur Houghton, a former curator at the Getty who has represented museums as a member of the State Department’s cultural property advisory committee.
“Evidence is only one component of the analysis,” Mr. Urice said. “Of equal, if not greater, significance are the ethical issues presented. A museum has a duty to consider more than just evidence.”