Who Owns Ancient World Treasures? : Countries’ Heritage, Art Collectors’ Rights at Issue in Courts

Bright and early on March 30, 1988, U.S. Customs agents knocked on eight doors around Southern California. Armed with warrants to seize all pre-Columbian artifacts and related records, the agents pored over art collections and dealers’ inventories, poked into closets, sifted through files and examined Rolodexes, business ledgers and canceled checks.

Twenty hours later, when the last agents drove away, they took with them about 1,300 objects, reportedly worth as much as $3 million, and stacks of documents. Some of the objects appeared to have come from the northern Peruvian village of Sipan, then emerging as the site of the most important ancient tombs ever found in the Americas.

When news of the raid reverberated around the art world, ardent defenders of Peru’s cultural patrimony hoped that the seizures and subsequent trials would be a turning point in an effort to preserve that impoverished country’s rich heritage.

Dealers and collectors, on the other hand, feared that if the courts upheld Peru’s blanket claim to ownership of all Peruvian pre-Columbian material, their trade would completely dry up.

Now, with two trials complete, the dealers are claiming victory. But four more cases are pending, and many questions persist about who owns the world’s antiquities and how they should be treated.

The Peruvian cases are part of a broader debate in the United States affecting several countries that contend that their patrimony is being pilfered. A court in Indiana recently ordered a dealer to return Byzantine artworks that had been improperly removed from Cyprus. Bolivia and Costa Rica have won U.S. emergency orders protecting their antiquities, and Peru hopes for a similar order from President Bush later this year.

The buyers, on the other hand, fear that a few shady deals will jeopardize an age-old trade that has enriched museums and in some cases protected artwork that otherwise would have been ignored, neglected or even destroyed.

On the face of it, Peru has not been well served by the first two trials. They have resulted in only nine artifacts, out of all those seized, being designated for return to Peru: an unusual ceramic vessel depicting a man who is slitting his throat, a large pair of gold ear ornaments inlaid with shell and turquoise and several ceramic and copper objects.

All of them were among the 500 items seized from David Rand Swetnam, a 32-year-old art importer and dealer convicted in June of fraudulent customs declarations but acquitted of more serious charges.

“The government may have won its skirmish with me, but it lost the war. This case opened the door to importations,” Swetnam said shortly before his six-month sentence began Sept. 25 at the federal prison camp in Boron. “I’m probably the happiest man who has ever gone to jail. I regained ownership and possession of 95% of the artifacts that were seized from me.”

In the future, Swetnam said, he will push the limits of legal importations in the interests of free trade: “The government has made me an activist. I’m planning to be a thorn in their side from now on.”

Benjamin Johnson, 50, a collector who sells art out of his Santa Monica home through a business called Art Care Inc., fared even better in court. He regained ownership of all 330 objects seized from him, although some were damaged and a few have been lost. But the customs raid and trial were “devastating” blows to his reputation and fragile health, he said during a recent interview at attorney Ronald J. Nessim’s office.

Johnson, who was chief conservator at the Los Angeles County Museum of Art from 1967 to 1978, was found to have diabetes when he was 15. He has had both legs amputated and four kidney transplants. He has a failing heart and is blind in his left eye. He calls his art collection a “savings account” that provides funds for large expenses. Deprived of it for more than a year, he feels victimized by the “hypocrisy” of the pre-Columbian art trade.

“If trade goes on and the Peruvian government doesn’t take care of it at the source, I have a right as a citizen of the world to enjoy the art,” he said.

The customs raids were the culmination of exhaustive investigative work by Gaston B. Wallace, a senior special agent of the U.S. Customs Service. Wallace had been informed of an alleged international smuggling ring by Michael D. Kelly, a British subject who lives in Ventura and organizes international art shows.

Wallace obtained search warrants for the raids, based on Kelly’s account and taped conversations.

Kelly moved to the United States in 1979 with the goal of establishing a major Latin American museum.

The project never got off the ground but in the course of working on it, Kelly said, he “met everybody who was involved with Latin American art, and I saw a glimmer of hope in every enthusiast. I just closed my eyes to the dirty side of the art business.”

One of those he met was Swetnam, an importer and dealer of pre-Columbian art who, with his wife Jacquelyn, owned Ethnos Galleries in Summerland and later moved the business to their home in Santa Barbara.

In 1986, Kelly learned that his father was dying in England.

“My mother wanted me to come back and I got panicky about it. I didn’t have any money,” Kelly said. “David Swetnam offered to pay my fare if I would introduce him to my contacts in England.”

Kelly accepted the offer. It was the first of a string of “terrible decisions,” he said.

One of them, he said, was to allow Swetnam to use him as a conduit for imports of pre-Columbian art from Britain to the United States in return for $2,500 per shipment. Britain permits pre-Columbian imports, while the United States has entered into agreements with several Latin American countries that can impede such imports.

As a British subject living in the United States, Kelly could have personal effects sent duty-free from England. It would be a simple matter to tuck away artworks in footlockers of clothing, books and household objects. At the time, Kelly said he was “happy to believe” there was nothing illegal about the plan.

Back in Southern California in 1987, Kelly also agreed to act as broker for a group that planned to invest in Peruvian colonial furniture. The investors were Orman K. Gaspar of Montecito, George H. Gelsebach of Encino and Ronald T. Stanman of Los Angeles. In March, 1987, Kelly accompanied Gaspar and Gelsebach to Lima, while Stanman stayed in Los Angeles to take care of financial matters.

The furniture deal fell apart, but Swetnam, who had followed the group to Peru, presented an alternative: looted artifacts from Sipan. According to court documents, Swetnam got the artifacts from Fred Drew, an American dealer in Lima. Swetnam declined to comment on his part in the deal but said looted Sipan material was “available” in Lima at the time and that he “had some successes with it.”

According to investigator Wallace’s affidavit, the investors switched from a legal deal to an illegal one and decided to double their investment, from the $40,000 intended for furniture to $80,000 for an undisclosed number of artifacts. The investors “caught gold fever,” Kelly said, and agreed to split 55% of the profit, giving the remaining 45% to Drew and Swetnam.

Peruvian law prohibits the exportation of pre-Columbian artifacts, but the investors were advised of ways to circumvent that problem, including bribing Peruvian customs officials and carrying ceramic objects by land to Bolivia where they would be disguised by thin coats of unfired clay and marked Hecho en Bolivia (Made in Bolivia), the U.S. Customs affidavit says.

Before the Sipan deal, Kelly had imported two footlockers of “personal effects” from London, including pre-Columbian artifacts that Swetnam had in storage there.

In August, 1987, while Swetnam was in London, he sent Kelly another shipment, throwing in a raincoat as a token “personal effect” with a load of artifacts that Kelly says were from Sipan and worth at least $500,000 wholesale. Swetnam returned to Los Angeles before the shipment arrived and accompanied Kelly to the airport to retrieve it. This time, instead of taking the trunk to Swetnam’s home, they delivered it to Johnson’s home.

Johnson contends that he had no prior knowledge of the shipment and was surprised when the men arrived. He looked at a few things but kept none of them, he said. Kelly insists that Johnson had ordered some of the pieces and kept many of them.

Kelly said he was the one who was shocked when the trunk was opened because he did not know he would be used to import Sipan loot.

“At that point I knew I was going to do something about it,” he said. “If I make my own stupid decisions, that’s one thing, but I don’t like to be somebody else’s fool.”

Kelly went to U.S. Customs in September, 1987. Wallace arranged for him to secretly tape conversations, which drew Wallace’s attention to Swetnam and his wife, the three investors, Johnson, Santa Monica dealer Larry Wendt, Santa Barbara collector Charles Craig and Pasadena collector Murray Gell-Mann, a Caltech professor who won a Nobel Prize for physics in 1969 and serves on the boards of the Smithsonian Institution and the MacArthur Foundation. Customs agents searched all of their homes and a building used for Swetnam’s business.

Who had squealed? Nobody knew for several months because U.S. Customs kept Wallace’s affidavit sealed while the investigation continued. In a taped telephone conversation after the raids, Swetnam told Kelly that the case would result in “total freedom to work this type of material in the United States.”

The goal, Swetnam said, was “to make it a great big case” involving such high-profile collectors as Gell-Mann, who was not indicted and is negotiating with Peru about the repatriation of his pre-Columbian artifacts.

“We’re going to pull every museum in the country into this,” Swetnam told Kelly. “We have people on every board of directors for every major institution in the country that are collectors and this is going to be an enormous, big, giant, huge battle. . . . I personally am planning on having a lot of fun in it, you know.”

A federal grand jury charged the Swetnams with 10 counts of conspiracy, smuggling and fraudulent declarations of imported goods. The prosecution’s preliminary statement said the goods mentioned in the indictment represented only a small portion of the couple’s smuggling activity.

Court records state that Swetnam originally shipped his Peruvian purchases to the United States by way of Bolivia and Canada but had to find a new route after the Canadian government seized two shipments in 1985.

The Swetnams originally pleaded not guilty, but David Swetnam later changed his plea to guilty so that charges against his wife would be dropped.

The second case to come to trial was Peru’s civil suit against Johnson. Kelly testified that some of the objects in Johnson’s possession had come from Peru, but Johnson presented sales slips and other evidence that disputed Kelly’s statements.

Johnson’s case turns on the distinction between illegal exports and theft, his attorney Nessim said. While the United States does not enforce other countries’ export laws, it does enforce their laws regarding stolen property. Furthermore, the United States has signed a treaty with Mexico and executive agreements with Peru, Ecuador and Guatemala to assist in the recovery and return of stolen material, including pre-Columbian artifacts.

“The legal distinction between stolen goods and illegally exported goods gets complicated and interesting when such countries as Peru enact statutes claiming that all pre-Columbian material belongs to the nation. To a suspicious foreigner, it appears that they are trying to turn illegal exports into thefts,” said John Henry Merryman, a professor of law at Stanford University and an expert on international art law who testified for Johnson.

Merryman testified that Peru’s blanket ownership law seems to have been created for foreign consumption. He said Peru has never enforced the law at home and if it did, the law would probably be declared unconstitutional.

The case was closely watched to see if it would conform to the landmark 1977 criminal case of U.S. vs. McClain, in which antiquities dealer Patty McClain was found guilty of importing Mexican pre-Columbian artifacts without obtaining export permits. In that case, the judge ruled that McClain was guilty of theft because she had violated the National Stolen Property Act.

“We are finding that customs has adopted McClain and given it the broadest possible reading. This has a chilling effect on the ability of dealers and collectors to import,” said Nessim’s co-counsel Edward L. Wolf, an attorney with Arnold & Porter in Washington, a firm that represents the American Assn. of Dealers in Ancient, Oriental and Primitive Art.

In the end, U.S. District Judge William P. Gray ruled in favor of Johnson because the prosecution failed to prove to his satisfaction where the pre-Columbian pieces in Johnson’s collection had come from or that they were exported after 1929, when Peru’s ownership law took effect. Gray held that Kelly’s testimony regarding the objects was hearsay and that Peru’s claim of ownership was uncertain.

Supporters of Peru’s position fear that the Johnson case will reverse any inclination to accept U.S. vs. McClain as a precedent.

Dealers and their lawyers generally advocate free trade of antiquities except for monuments and exceptional or rare objects. Swetnam contends that his purchases help Peruvian villagers achieve a higher standard of living and that the artifacts are “miniature ambassadors to the world.”

But one of Peru’s most avid and active allies, George C. Roberts of Los Angeles, says the moral issue ought to be more important than legal and economic factors.

A passionate Peruophile, Roberts has traveled extensively in the country, is married to a Peruvian and has many connections there.

He says he felt he could not ignore the Sipan plunder. When he learned that some of the loot was locked up and awaiting legal action in Los Angeles, he dropped everything and took on a project that has become a sort of holy war.

One of his first moves was to call his friend, Cesar G. Atala, Peru’s ambassador in Washington. Atala authorized him to represent Peru in an effort to recover Peruvian items that had been illegally removed from the country and seized in the United States.

A physicist by training and a successful businessman, Roberts soon found that he was a babe in the woods in matters of law.

“I feel I’m in a battle with titans. It isn’t obvious that justice is being done,” he said of the cases, expressing despair that a poor country such as Peru cannot effectively challenge opponents in U.S. courts.

It’s all about money, Roberts said: “The art market is very aggressive in the United States now and we’re looking in the jaws of that.”

Joceline Frank, an Alfred Friendly Press Fellow from Peru, contributed to this story.