Industry News

HSI Returns Artifacts to Mexico

Mar. 16, 2021


On Tuesday, March 9, 2021, Homeland Security Investigations (HSI), which is the investigative arm for U.S. Customs and Border Protection, returned almost 300 Pre-Columbian artifacts to Mexico in a repatriation ceremony. Of the 277 artifacts, 267 of them were the subject of an investigation out of the Port of Nogales, where they were declared for entry by two Mexican citizens in 2012 and detained by CBP for further examination. The cache of artifacts consisted of arrowheads, tools, and small stone carvings, and were dated between 1,000 and 5,000 years old.

The detained artifacts were examined by archaeologists from the Mexican Institute for Anthropology and History (INAH) based in Sonora. Upon a thorough examination, the INAH archaeologists concluded that the artifacts were Pre-Columbian artifacts of Mexican origin from Northwest Mexico. The appraised value of the 267 artifacts was over $124,000. According to the HSI press release, HSI ultimately concluded that the artifacts were imported into the U.S. contrary to law.

There are several laws that address the importation of Pre-Columbian artifacts.

The Convention of Cultural Property Implementation Act (“CPIA”) is the U.S. law that implements the 1970 UNESCO Convention on the Illicit Trade in Cultural Property. The CPIA incorporated two key provisions of the 1970 Convention. The first provision, Article 7(b), prohibits the importation of cultural property into the U.S. that has been stolen from a museum, religious or secular public monument, or similar institution. Generally, the first provision of the CPIA is limited in application because the majority of artifacts that are smuggled into the U.S. do not originate at a museum or monument but from archaeological or undiscovered dig sites. Under the second provision, Article 9, the CPIA permits the U.S. to enter into bilateral agreements with other countries whereby the U.S. will impose import restrictions on certain designated cultural artifacts from the requesting country. Artifacts subject to import restrictions under a bilateral agreement may only be imported where documentary evidence exists that the artifact was properly exported from the country of origin or that the artifact was outside of the origin country prior to the date the restrictions went into effect.

There is currently no bilateral treaty between the U.S. and Mexico under the CPIA. There is a treaty between the U.S. and Mexico that resembles agreements entered into under the CPIA though its provisions are somewhat vague, and its application limited. The 1970 Treaty of Cooperation Between the United States and Mexico “encourage[s] the protection, study and appreciation of properties of archaeological, historical or cultural importance, and to provide for the recovery and return of such properties when stolen.” Under the 1970 treaty, an official request must be made by the country seeking return or recovery of stolen artifacts.

The importation of Pre-Columbian artifacts is also regulated under the Importation of Pre-Columbian Monumental or Architectural Sculpture of Murals Act of 1972 (Pre-Columbian Act), which provides that ““[n]o pre-Columbian monumental or architectural sculpture or mural . . . may be imported into the United States unless the government of the country of origin of such sculpture or mural issues a certificate . . . which certifies that such exportation was not in violation of the laws of that country.” 19 U.S.C. § 2092. The Pre-Columbian Act works similarly to the CPIA. Under the Pre-Columbian Act, the Secretary of the Treasury promulgates a list of artifacts that are subject to the regulation’s protection. CBP allows for importation of items on the list only when a valid export certificate accompanies the import. In the absence of a valid certificate, CBP is authorized to seize the Pre-Columbian artifact so long as the artifact was exported after the date the regulations went into effect.

As mentioned above, HSI concluded that the importation of the 267 artifacts was contrary to the laws governing the import of Pre-Columbian artifacts. CBP’s seizure of the pre-Columbian artifacts and their recent restitution should caution importers of such material to take heed of the robust framework for the protection of Pre-Columbian artifacts moving across the border. Importers should be sure to understand their obligations under that statutory framework.

For any questions on the importation of Pre-Columbian artifacts or the trade in cultural property generally, please contact an attorney at Barnes, Richardson & Colburn LLP.