Has State and CBP Exceeded Their Authority in Imposing Import Restrictions on Ecclesiastical Artifacts?

The CPIA only allows for restrictions on archaeological or ethnological artifacts.   The latter are defined as the products of tribal or nonindustrial societies.  19 U.S.C. Section 2601 (2) (C) (ii).  The Senate Report further makes clear that ethnological artifacts are only supposed to encompass "tribal" or "primitive art," such as masks, idols or totem poles.  (Senate Report at 5.)

The recently announced expansion of Guatamalen import restrictions thus once again raises the question whether State and CBP have exceeded their authority, this time by adding restrictions on ecclesiastical artifacts that date as late as 1821.  Here is a list of the newly restricted artifacts.  Can State and CBP fairly claim they encompass "tribal" or "primitive" art?

Ecclesiastical Ethnological Material (Dating From Approximately A.D. 1524 to 1821)


VI. Sculpture�Sculptural images of scenes or figures, carved in wood andusually painted, relating to ecclesiastical themes, such as the Virgin Mary, saints,angels, Christ, and others.

A. Relief Sculptures�circular-shaped, low-relief plaques, often polychrome wood, relating to ecclesiastical themes.

B. Sculpted Figures�wood carvings of figures relating to ecclesiastical themes, often with moveable limbs, usually with polychrome painting of skin and features; clothing might be sculpted and painted, or actual fabric clothing might be added.

C. Life-Sized Sculptures�full figure wood carvings of figures relating to ecclesiastical themes, often with polychrome painting using the estofado technique, and occasionally embellished with metal objects such as halos, aureoles, and staves.

VII. Painting�paintings illustrating figures, narratives, and events relating to ecclesiastical themes, usually done in oil on wood, metal, walls, or canvas (linen, jute, or cotton).

A. Easel Paintings�pictorial works relating to ecclesiastical themes on wood, metal, or cloth (framed or applied directly to structural walls).

B. Mural Paintings�pictorial works, executed directly on structural walls, relating to ecclesiastical themes.

VIII. Metal�ritual objects for ceremonial ecclesiastical use made of gold, silver, or other metal, including monstrances, lecterns, chalices, censers, candlesticks, crucifixes, crosses, and tabernacles; and objects used to dress sculptures, such as crowns, halos, and aureoles, among others.

CPAC To Meet

The Federal Register reports that the Cultural Property Advisory Committee will meet to discuss renewals of current MOU's with Guatemala and Mali, and to conduct further discussion in secret about a request from Bulgaria. See http://www.ofr.gov/(S(mb4uyziobevezdhmm1qt4oyc))/OFRUpload/OFRData/2012-05909_PI.pdf

Archaeo-blogger Rick St. Hilaire's post about the upcoming meeting seeks to portray the secrecy and culture creep that has marked the Bureau of Educational and Cultural Affairs'administration of the CPIA as both necessary and consistent with the statutory mandate. See http://culturalheritagelawyer.blogspot.com/2012/03/mali-guatemala-and-bulgaria-up-for.html

However, others-- including several former CPAC members-- have questioned this, most recently during a public forum on Capitol Hill. See http://ordinarymag.blogspot.com/2011/03/cultural-property-implementation-act-is.html

CPAC Meetings on Bolivia, Guatemala and Mali

The State Department has announced CPAC review of the MOU's with Bolivia, Guatemala and Mali. See http://www.gpo.gov/fdsys/pkg/FR-2011-06-02/html/2011-13693.htm

According to the notice,

During its meeting on Monday, June 27, the Committee will begin its review of a proposal to extend the Memorandum of Understanding Between the Government of the United States of America and the Government of the Republic of Bolivia Concerning the Imposition of Import Restrictions on Archaeological Material from the Pre-Columbian Cultures and Certain Ethnological Material from the Colonial and Republican
Periods of Bolivia [Docket No. DOS-2011-0092]. An open session to receive oral public comment on this proposal to extend will be held from 10 a.m. to 11 a.m.

On Tuesday, June 28, the Committee will conduct interim reviews of the Memorandum of Understanding Between the Government of the United States of America and the Government of the Republic of Guatemala Concerning the Imposition of Import Restrictions on Archaeological Objects and Materials from the Pre-Columbian Cultures of Guatemala, and of the Agreement Between the Government of the United States of America and the Government of the Republic of Mali Concerning the Imposition of import Restrictions on Archaeological Material from Mali from the Paleolithic Era (Stone Age) to approximately the Mid-Eighteenth Century. Public comment, oral and written, will be invited at a time in the future should these MOUs be proposed for extension.

This continues the anti-transparency trend at the State Department Bureau of Educational and Cultural Affairs. The public is no longer welcome to provide testimony on whether a source country is living up to its side of an MOU during an interim review hearing. Instead, comments are only welcome at the very end of the process-- when the train has almost arrived at the station.....

Not that anyone really believes that the State Department holds source countries to their promises to secure such MOU's. If they did, its doubtful many of the MOU's would continue to be extended and even expanded time and time again.