Industry News

The Epic (of Gilgamesh) Tale of Importing Cultural Property

Aug. 3, 2021


In May 2020, we wrote on the lessons from the forfeiture by Hobby Lobby of a few thousand Iraqi antiquities that were illegally imported into the U.S. in 2010. Last week’s forfeiture of a rare cuneiform tablet imported by the Museum of the Bible ordered by the U.S. District Court for the Eastern District of New York on similar grounds again cautions importers to the legal and regulatory web that govern the trade in cultural property.
 
The subject tablet, known as the Gilgamesh Dream Tablet, is a 3,500-year-old clay artifact inscribed in ancient Sumerian text with a portion of the Epic of Gilgamesh, which is thought to be one of the oldest known works of literature. The tablet originated in modern-day Iraq. A U.S. antiquities dealer purchased the tablet, among other items, from a Jordanian antiquities dealer based in London in 2003 for $50,350. It was then transported to the U.S. by international post and no formal entry was made. The U.S.- dealer sold the tablet in 2007 with a false provenance that identified the tablet as having been inside a box of miscellaneous ancient bronze fragments that was purchased at an auction in San Francisco in 1981. The tablet was then subject to several international sales before being sold in 2014 by a London auction house to Hobby Lobby for $1,674,000 with the same falsified provenance, for eventual display in the D.C.-based Museum of the Bible, which is funded by the family of Hobby Lobby founder David Green. The tablet then re-entered the U.S. without formal entry via an employee from the auction house who carried it on a flight from London. The tablet was seized by U.S. law enforcement from the Museum of the Bible in 2019. The Justice Department brought a forfeiture action against the tablet in May 2020 pursuant to 19 U.S.C. § 1595a(c)(1)(A), asserting the property was involved in multiple violations of U.S. law, including a Title 18 smuggling statute, and the Cultural Property Implementation Act (CPIA).
 
As a preliminary matter, goods imported into the U.S. must comply with U.S. law. At the time of the tablet’s 2003 and 2014 importations, formal entry was required for all goods valued over $2,000 and $2,500 respectively. Formal entry involves the importer declaring specific information about the good, including a tariff classification code, a country of origin, a description of the good, and the value. Neither the U.S.-antiquities dealer who first imported the tablet in 2003 nor the auction house when importing the tablet from London in 2014 declared the tablet at customs as required.
 
In addition to general customs law enforced at the U.S. border, there are also more specific laws, regulations, and executive orders that govern the importation of Iraqi cultural material into the U.S. Under various legal instruments, the trade in Iraqi cultural material has been restricted since August 1990. In November 2004, the U.S. refined and amended the protections for Iraqi cultural material. Former President Bush issued Executive Order 13350, codified at 31 C.F.R. § 576.208, which prohibits “the trade in or transfer of ownership or possession of Iraqi cultural property or other items of archeological, historical, cultural, rare scientific, and religious importance that were illegally removed, or for which a reasonable suspicion exists that they were illegally removed, from the Iraq National Museum, the National Library, and other locations in Iraq since August 6, 1990.” Additionally, the Senate passed the “Emergency Protection for Iraqi Cultural Antiquities Act of 2004” (Iraqi Cultural Antiquities Act) allowing the President to exercise the authority under the CPIA to impose emergency import restrictions on cultural materials illegally removed from Iraq. The authority to impose such restrictions was assigned to the State Department and in 2007, the State Department determined that conditions existed necessitating the imposition of emergency import restrictions for archaeological and ethnological materials of Iraq. In April 2008, U.S. Customs and Border Protection issued corresponding regulations, codified at 19 C.F.R. § 12.104j, which provides exemplar of the designated material to which the restrictions may apply. Under the emergency import restrictions, designated material cannot be imported into the U.S. absent certification from the country of origin or other documentation that certifies or demonstrates that the material’s exportation from the origin country was lawful under the laws of that country. Absent such certification or documentation, the material is subject to seizure and forfeiture under the CPIA. The falsified provenance, no matter how imbued into the article’s transactional history or believed by the purchaser or importer, does not constitute legitimate documentation so as to make the import of any such article permissible under the CPIA’s documentary requirements.
 
The 2004 additions to U.S. law regulating Iraqi material, which backboned the Gilgamesh tablet forfeiture action, were principally in response to the 2003 looting of the Iraq Museum in Baghdad and the subsequent looting of archaeological sites throughout southern Iraq in the wake of instability resulting from the U.S.-led invasion. More generally, the import restrictions are intended to reduce the incentive for pillage by discouraging the trade in undocumented cultural objects while also facilitating a legal trade for documented material. The falsified provenance presented the tablet as being outside Iraq before the 1990 statutory threshold for regulated Iraqi material. The lack of supporting documentation (i.e., no catalogue publications or proof of sales prior to 1990) for this claim however should have made suspicious any potential purchaser who halfway-scrutinized the tablet’s provenance against the backdrop of the specific legislation for Iraqi-material and cultural property imports generally. Especially considering the increasingly regulated environment for traded cultural material. The Assistant Attorney General on the case emphasized the Justice Department’s commitment to eliminate smuggled cultural property from the U.S. art market, stating that “thwarting trade in smuggled goods by seizing and forfeiting an ancient artifact shows the department’s dedication to using all available tools, including forfeiture, to ensure justice.”
 
While the forfeiture of the Gilgamesh Tablet has rightfully received considerable attention, it is just one of some 17,000 archaeological objects that the U.S. has committed to returning to Iraq and which were looted subsequent to the U.S.-led invasion of Iraq in 2003 amidst the resulting instability. The tablet’s forfeiture is the latest event in the series of scandals involving Hobby Lobby’s and the Green family’s fraught acquisitions of archaeological pieces. Importers of similar material should again take the craft company’s misfeasance as cautionary and work to comply with all extant law and regulations regarding the trade in cultural property.
 
If you have any questions on the seizure and forfeiture under customs and cultural property laws, or the importation of  cultural property generally, please contact a Barnes, Richardson & Colburn, LLP attorney.