By: Anna Long

It is essentially undisputed that thousands of artworks and artifacts have been stolen or looted throughout history as the result of outright theft, colonial conquest, and war. Today, a number of these stolen works sit behind glass in museums, the plaques that detail their origins conveniently leaving out exactly how each piece ended up in American institutions. And while the last handful of years has seen a movement towards the repatriation of stolen artworks and artifacts, actual return of that artwork is the exception rather than the rule. First, museums are only compelled to repatriate the art if there is proof it was stolen or looted. And second, in laying claim to particular artworks and artifacts, museums reaffirm the American savior identity rooted in cultural appropriation. Prioritizing repatriation is a necessary step towards the decolonization of the art trade. Relaxing the mens rea requirement of the National Stolen Property Act of 1934 is the best tool for effecting this repatriation.

While the expectation that stolen art should be repatriated is gaining acceptance, the museum community has yet to come to a consensus on its appropriateness and efficacy. Some experts assert that the artworks and artifacts should stay wherever they are currently placed, regardless of national origin or cultural importance. This argument is usually centered on the claim that American museums can better manage and protect the art. However, the fact that the American market encourages continued looting and, correspondingly, further damage calls that claim into question. Other scholars advocate for the return of the art to its country of origin or, if possible, the original owner. This sentiment rests on the concept that cultural property belongs where it originated, especially if it was forcibly removed. This debate does not change the reality that museums are only required to repatriate the art if it is proven to be stolen or looted. Clear provenance, documenting the piece’s history, usually means the art stays where it is. Documentation of ownership going back decades should not necessarily absolve museums of responsibility now. 

Ancient Greek art and artifacts embody the implications of continued American control over cultural property and the importance of repatriation. These artifacts, spread through museums across the country, are a good way to conceptualize how a claim to cultural identity can be expressed through control of material objects. 

“For reasons rooted in everything from Hollywood marketing to Cold War politics, most Americans, regardless of their level of formal education, have a sense that democracy was invented in Athens, Aphrodite was a literal sex goddess,… and (Eric Bana’s) Hector was no match for (Brad Pitt’s) Achilles in the Trojan War.” 

Stretching from democracy, a fundamental building block of American identity, to Brad Pitt and Eric Bana, who are also arguably central to that identity, Greek myth and imagery exist in all aspects of American media. The artifacts that line our museums are the physical manifestation of that imagery.  In appropriating the physical artifacts, we have laid claim to a cultural inheritance of idyllic heroes and representative government.  We are leaning on manipulations of history to do so; manipulations intended to valorize the United States as the exemplar and appropriate inheritor of past greatness.

This interest in control of these artifacts and claim of ownership of a heroic narrative legacy then has greater implications of colonialism. In asserting a legacy from the Ancient Greeks, America, and other centers of the Western world,  claim descendance from a culture that, in turn, claims a descent from the gods and god-like heroes of its own past. The result is an implication that the nations and cultures that originated this grand legacy, no longer have what it takes to expand and continue it.  This opens the door to oppression under the guise of rescue. Even something as simple as asserting that non-Western museums are incapable of maintaining the art reemphasizes the notion that American greatness has supplanted that of the nations and cultures that preceded it.

This appropriation of the art blends uncomfortably with the savior narrative it reinforces.  Wealthy white Americans take it upon themselves to manage the art they have deemed worthy, removed from the people they have deemed unworthy. Unfortunately, it is here that race and privilege are unavoidably thrown into the mix. Although applicable to art and artifacts across the world, the Ancient Greek pieces provide a clear example: it is only in contrast to Western ideals that we considered modern Greeks unworthy inheritors of their own history. Echoing uncomfortably with the fact that most modern audiences do not know that the statues and temples were painted, the modern aesthetic value placed upon the gleaming white is imposed by the colonial powers, preventing understanding of the values of the originating culture.  

Understanding just how deeply ingrained these colonial concepts are in our national identity, it can seem like repatriation will make little difference. But it is a step in the right direction and the National Stolen Property Act of 1934 (NSPA) is a way to get started. The NSPA, often used in conjunction with foreign patrimony laws restricting ownership and transport of cultural property, penalizes the possession, transport, and sale of items that have crossed a state or U.S. border after having been stolen, converted, or taken. 

Although the statute seems fairly straightforward in its application, it was the 1986 amendment and the Second Circuit’s United States v. Schultz decision that gave the NSPA real teeth. Implemented in 1934, it wasn’t until 1986 that the amendment added possession to the list of criminal behaviors.  Prior to 1986, museums used the statute of limitations as a defense, with decades if not centuries passing between the act of theft and active museum control. As possession is an on-going action, the amendment erased this defense and opened the door for actual enforcement.

United States v. Schultz then expanded the reach of the statute. In Schultz, the Second Circuit held that “just as the property need not be stolen in the United States to bring the NSPA into play, the fact that the rightful owner of the stolen property is foreign has no impact on a prosecution under the NSPA.” Allowing foreign nationals, and even governments, as victims under the act expanded the opportunities for enforcement. Together the 1986 amendment and Schultz brought the NSPA to the forefront of antiquities litigation.

But it is a removal or relaxation of the mens rea requirement that would make the NSPA the most effective tool for repatriation and decolonization of the art trade. The NSPA currently requires a defendant’s knowing violation, and with antiquities long since removed from their context, it is difficult to prove knowledge that the artifacts were stolen. Removing, or at least relaxing, the scienter requirement lowers the burden of proof needed to hold museums liable for possession of stolen property. This is simultaneously a deterrent for the continued acquisition of stolen goods and a justification for the repatriation of artifacts currently within museum collections. And as further enforcement will only limit the number of stolen artifacts entering the US, relaxing the mens rea requirement will do little harm to any legitimate antiquities trade, if there is one.