Court decision wrong?

ACCG may appeal Aug. 8 ruling
Published : 09/09/11
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Coin World has reported regarding a lawsuit by the Ancient Coin Collectors Guild against the U.S. government to clarify the rules applicable to importation of coins claimed by foreign countries as cultural property.

On Aug. 8, a federal district judge granted the government’s motion to dismiss ACCG’s case, and ACCG is expected to appeal.

Many issues are involved in the case. One, however, is of particular interest to me. The U.S. government, through Customs and Border Protection, claims the right to seize coins at entry if those coins are claimed by another country to be that country’s cultural property.

Skipping the rather intricate definitions of “cultural property” in international treaties and the governing federal statute, what’s important is that Congress has limited the Executive Branch’s authority to regulate the importation of cultural property in certain respects. One such limitation is that the property must be “first discovered within, and … subject to export control by” the country claiming it as cultural property.

In the ACCG case, the relevant countries are Cyprus and China, because the coins at issue in the case are claimed by those countries. However, ACCG argued in its lawsuit to the court that there was no way to say that these coins were “first discovered” in either country in modern times, just because the coins may originally have been minted there. This was due to the wide dispersion of coins from both countries throughout centuries of trade and immigration.

It was also the case that foreigners minted coins in Cyprus that are indistinguishable from Cypriot coinage, and countries outside China likewise imitated Chinese coinage. If the government was not prepared to prove the coins “first discovery” to have been in Cyprus or China, there were no grounds to seize the coins upon entry to the United States.

The court rejected ACCG’s argument on three grounds. First, it cited another provision in the law that placed the burden on importers to show property had been legally exported, and speculated that Congress gave no guidelines on how the government could prove country of discovery. Second, it said that because the law allows the Executive Branch to designate items as cultural property by type only, the government could have so designated all Cypriot and Chinese coins regardless of where they were discovered. Third, it suggested that requiring the government to prove that items such as coins were first discovered in the country claiming them would be contrary to the intent of the law, which was to discourage looting of archeological sites.

In my opinion, the court was wrong on this issue, and that ACCG’s position better reflects Congress’ intent in enacting the statute. The combination of the terms “first discovered” and “subject to export control by” demonstrate that Congress wasn’t about to let the United States be enlisted by foreign governments to recover items that were not taken from those countries in modern times.

Cyprus and China might well claim that any coins originally minted there are cultural property, but Congress was interested only in coins that were still there recently enough to have been looted.

The other portions of the statute quoted by the court do not change the plain meaning of Congress’ words. The court should not have granted the government’s motion to dismiss, but instead the government should have been forced to prove that the coins were subject to seizure.

Armen R. Vartian is an attorney and author of  A Legal Guide to Buying and Selling Art and Collectibles.

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