For the St. Louis Art Museum, a Legal Victory Raises Ethical Questions

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Should American institutions hold onto dubiously acquired artifacts, even when their countries of origin ask for them back?

ka-nefer.jpgSt. Louis Art Museum

In certain respects, the tale of the Ka-Nefer-Nefer follows a familiar script: like many disputed antiquities, the Egyptian funerary mask was unearthed last century and quickly vanished, spending nearly 50 years in obscurity before resurfacing on the European art market in the late 1990s. The St. Louis Art Museum soon bought the mask -- an elaborately tooled cartonnage of blended gold, glass and linen. It has since become the centerpiece in a bitter ownership dispute between the museum, which claims clear title, and Egypt, which charges the mask was plundered from a government storeroom.

But this story went decidedly off-script last year after U.S. officials, acting on Egypt's behalf, entered the fray. The feds informed museum leaders that they believed the mask was stolen, and they intended to use the courts to seize the artifact and return it to Egypt. But where some museums might have simply handed over the goods, St. Louis went on the attack, filing its own a pre-emptive lawsuit that claimed the statute of limitations had expired -- an aggressive challenge from an institution that has repeatedly defied calls to release its grip on this pricey piece of loot.

"This is very unusual," Patty Gerstenblith, who directs the Center for Art, Museum & Cultural Heritage Law at DePaul University, told me not long after the museum filed its suit. "This is the first time I've seen a public institution like a museum deciding to expend its funds to proactively sue the government."

Now comes U.S. District Judge Henry E. Autrey, who on March 31 handed museum leaders a legal victory, and a moral challenge, when he dismissed the government's forfeiture claim, finding it "devoid of any facts showing that the Mask was 'missing' because it was stolen and then smuggled out of the country." (Underline and bold in the original).

Indeed, there are no official records showing that the mask was sold by -- or stolen from -- the Egyptian government. Rather, Egyptian records indicate that the mask, excavated during a state-sponsored dig in the early 1950s, was registered to the Egyptian Antiquities Service. The government kept it in storage until 1966, when officials shipped it to Cairo for restoration. From there, the paper trail goes cold. It was not until seven years later, during a routine inventory in 1973, that the mask came up missing.

Legally, at least, the Ka-Nefer-Nefer simply vanished.

But the Egyptian record stands in stark contrast to the museum's own provenance for the mask, which has often been used to justify its possession of the 3,200-year-old artifact. According to that history, the mask entered the European art market around 1952, its presence confirmed by a lone Swiss businessman who mysteriously espied it during a trip to Brussels that year. (How the sellers knew, nearly half a century later, to contact the businessman about his serendipitous trip has never been adequately explained.)

The mask entered a private Swiss collection in the early 1960s, where it remained for roughly 30 years, until Phoenix Ancient Art, an elite antiquities firm with galleries in both Geneva and New York, acquired it, selling it to the St. Louis museum in 1998 for $499,000. Owned by the Lebanese brothers Ali and Hicham Aboutaam, Phoenix Ancient Art inhabits a rarefied world where a handful of dealers vie for the extremely rare, valuable or never before seen. Viewed in another light, this is a market whose emphasis on the hard-to-find means that plunder is often whitewashed, making it all but indistinguishable from the legitimate market.

The Federal Bureau of Investigations estimates that losses from art and cultural property crimes weigh in at as much as $6 billion annually. And while the illicit antiquities trade represents only a fraction of that number, experts contend that the antiquities market itself is awash with loot.

At times, this has meant trouble for the Aboutaams. The U.S. government returned a funerary slab to Yemen after the Aboutaams consigned it for auction at Sotheby's in 2003. The slab's provenance declared that it was held in a private collection, but investigators determined that it had actually been stolen from a Yemeni museum nearly a decade earlier. One year later, in 2004, a federal court in New York sentenced Hicham Aboutaam to one-year probation and a $5,000 fine after he pleaded guilty to a misdemeanor charge of misrepresenting the origin of an Iranian drinking vessel on customs documents. That same year, an Egyptian court sentenced his brother, Ali Aboutaam, to fifteen years in prison after finding him guilty in absentia of helping to smuggle antiquities out of the country. Ali Aboutaam remains free, however, and his co-defendants in the case were subsequently acquitted.

More recently, the Aboutaams -- whose client list includes The Metropolitan in New York, the Cleveland Museum of Art, and, of course, the museum in St. Louis -- have been outspoken about the need for dealers to raise their standards and chart a more ethical course through their market's choppy waters.

"We're still figuring out what can be acquired and sold without problems, as opposed to 40 or 50 years ago, when people were much more careless about ownership history," Hicham Aboutaam told The New York Times in 2007. "The question to me now is, where do we draw the line? What if a piece was already in circulation before these new standards? The archaeologists don't have an answer to that. They don't say throw it out, and they don't encourage you to buy it. What are we supposed to do?"

The St. Louis museum purchased the Ka-Nefer-Nefer in 1998, when the Aboutaams' father, the late Sleiman Aboutaam, still ran the company. In subsequent years, museum officials have maintained that their pre-purchase investigation of the mask was "exemplary" and included inquiries with the Art Loss Register, the International Foundation for Art Research and, as an INTERPOL member, the Missouri Highway Patrol. They also hand-delivered an inquiry to Mohammed Saleh, the then-director of the Cairo Museum. The mask came back clean.

"There was no red flag," said David Linenbroker, an attorney for the museum. "Part of the issue here is that the Egyptians didn't keep track of what they had in their storerooms. The fact that there was no red flag raised -- what are you supposed to do?"

Of course, if the Egyptians never reported the mask stolen, it would be unlikely to appear in the Art Loss Register, which was not formally established until 1991 -- some twenty years after the mask first went missing. The museum's due diligence in Egypt also seems to contain a major oversight. When writing to Saleh, who as director of the Cairo Museum oversaw an ocean of such objects, St. Louis curators failed to identify the mask's excavator, Mohammed Zakaria Goneim, and the well-known excavation that unearthed it -- two critical pieces of information. Instead they included a photograph and written description of the mask.

These are among the issues government lawyers raised recently while arguing the court should reconsider their case. Vowing to disclose information about the sellers' "criminal history," the feds characterize the museum's due diligence as "pro forma," charging the museum "knew or was willfully blind to the fact that the Mask was stolen property both before and after its importation."

With its reliance on a 50-year-old eyewitness account and a lengthy sojourn in a "private" Swiss collection, the Ka-Nefer-Nefer's provenance is viewed by some as a case study for the sort of the cooked-up histories that flooded the antiquities market during much of the 20th Century. "It was kind of a joke," Thomas Hoving, the late director of The Met, said when I first showed him the museum's story. Characterizing the ethos of the age, he added, "Everybody went nudge-nudge, wink-wink. You know: 'Oh, yeah, right, "the anonymous Swiss collector." That's good.'"

It was Hoving, after all, who helmed the Met during its 1972 acquisition of the famed Euphronios krater, a 2,500-year-old Greek mixing bowl that the museum returned to Rome after a long tug-of-war with the Italian authorities. The Met's 2008 return of the krater (along with 20 other disputed artifacts) came amid an ongoing wave of similar repatriations, which in recent years has seen the Boston Museum of Fine Arts, the J. Paul Getty Museum in Los Angeles and the Princeton University Art Museum, to name but a few, return disputed antiquities.

Plunder still abounds, of course, but the bad old days when American museums could ignore with impunity the ownership claims of other countries may be drawing to a close. This is to say nothing of the long-held archaeological concern that trophy-hunting museums can fuel the black market, robbing antiquities from their original context and impoverishing our understanding of the past. Instead, museums like the Met are increasingly partnering with countries of origin, admitting no fault as they return disputed items in exchange for collaborative archaeological digs and long-term loans.

Perhaps this is why the case of the Ka-Nefer-Nefer seems like such an outlier. For while the court has denied the government's forfeiture bid, it has never questioned the authenticity of the Egyptian records that place the mask in Egypt as late as 1966 -- a date that belies the museum's long-held claim that the mask was in Europe by 1952.

The museum, unsurprisingly, remains skeptical.

"No one knows exactly what happened to that mask and how it left Egypt," said Linenbroker, who added that Egyptian officials have previously admitted their record keeping was "very poor."

"If you look at it from the museum's perspective," he continued, "we know there was a practice that objects were sold. No one ever reported this thing missing, and when we asked before we bought it, nobody raised any red flags. How can you conclude from that that this is a stolen object?"

Nevertheless, St. Louis Art Museum Director Brent Benjamin previously assured Egyptian officials that the museum "takes seriously any suggestion that it illegally or improperly possesses any object." He added that he "looked forward" to reaching "a fair and amicable resolution of this matter." In light of the court's recent decision, it seems uncertain that the museum illegally owns the Ka-Nefer-Nefer. But how about improperly?

Of course, with their legal victory in hand, museum leaders have little incentive to wrestle with this more delicate question. And that's a shame, because to persevere in this litigious and outmoded view of antiquities collecting throws the St. Louis museum out of step not only with its fellow institutions, many of which have negotiated beneficial settlements for similar claims, but also with the American Association of Museums -- which counts the St. Louis institution as a member, and whose updated acquisition guidelines direct members to scrutinize their ancient art collections when "provenance is incomplete or uncertain."

Given the dueling narratives now in the public realm, the Ka-Nefer-Nefer's provenance has never been more uncertain. The question, then, is whether the Saint Louis Art Museum will simply bury its treasure, or finally embrace the sort of equitable resolution that is fast becoming its industry standard.

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Malcolm Gay is a writer living in St. Louis. He's currently at work on a book about the integration of the brain with machines.

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