"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
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
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.