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Volume XI, Number 55

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Problems of Provenance: The Gilgamesh Dream Tablet

Among all areas of collecting, acquiring antiquities is perhaps the most fraught. I have previously written more generally about the challenges of collecting antiquities (see general issues), looting), the Parthenon as a case study, and Parthenon part II). While there is considerable risk of fakes or forgeries, by far the greatest risk derives from uncertain (sometimes false, frequently scant, or nonexistent) provenance, rampant looting, and the illicit export of objects from their countries of origin. Parallel cases arising from the importation and sale of a cuneiform tablet known as the Gilgamesh Dream Tablet (the Tablet) exemplify these challenges.

A. Parallel Cases

On May 18, 2020, two separate but parallel actions were initiated in the United States District Court for the Eastern District of New York. In the first, the U.S. Attorney for the Eastern District of New York filed an in rem forfeiture action (the Forfeiture Complaint), seeking civil forfeiture under 19 U.S.C. § 1595a(c)(1)(A) of the Tablet, which had been seized in September 2019 from the collection of the Museum of the Bible (the Museum), located in Washington, D.C. At the time of the filing of the complaint, the Tablet was held in a U.S. Customs and Border Protection storage facility in Queens, New York. The Tablet had been acquired by Hobby Lobby Stores, Inc. (Hobby Lobby) in a private sale from an international auction house (the Auction House) in 2014, and was on loan to the Museum, of which Hobby Lobby is a major benefactor.

The second action (the Sale Complaint) was filed by Hobby Lobby, which brought suit against the Auction House, asserting claims of fraud and breach of express and implied warranties arising from the private sale of the Tablet. In both its answer to the Forfeiture Complaint and in the Sale Complaint, Hobby Lobby maintains that it was an innocent purchaser of the Tablet, undertaking appropriate due diligence and reasonably relying on representations allegedly made to it by the Auction House.

The Tablet is a 6-inch by 5-inch clay tablet on which a portion of the Gilgamesh epic is incised in wedge-shaped cuneiform script. The Gilgamesh epic takes its name from its eponymous hero and comprises a group of ancient Mesopotamian tales that have sometimes been characterized as “the odyssey of a king who did not want to die.” See Gilgamesh, Encyclopedia Britannica. The Gilgamesh tales are written in Akkadian (see Akkadian language, Encyclopedia Britannica), an ancient, extinct Semitic language. The fullest extant version of the epic, 12 inscribed clay tablets, was discovered in 1853 in the library at Ninevah. Even this group of tablets is nevertheless incomplete. In its Forfeiture Complaint, the United States describes the section of the tale that is inscribed on the tablet:

the protagonist describes his dreams to his mother and she interprets them as foretelling the arrival of a friend. She tells the protagonist, ‘You will see him and your heart will laugh.’ The names of the hero, Gilgamesh, and the character who becomes his friend, Enkidu, are replaced in this tablet with the names of the deities Sin and Ea.

In its Sale Complaint, Hobby Lobby states that the Tablet “was likely created during the First Sealand Dynasty, circa early 16th century, B.C., in the middle Babylonian period. Sealand refers to a province in the far south of Babylonia, a swampy region between the mouths of the Tigris and Euphrates rivers in modern-day Iraq.”

Both complaints are in agreement that cuneiform tablets have been highly sought after by individual and institutional collectors since the 19th century. The Forfeiture Complaint, however, emphasizes the risks of illicit trafficking in Iraqi antiquities – specifically cuneiform tablets. The complaint states that:

Cuneiform tablets have been the subject of substantial looting in Iraq. Hundreds of thousands of objects are estimated to have been looted from archaeological sites throughout Iraq since the early 1990s. Cuneiform tablets comprise one of the most popular types of looted Iraqi artifacts on the antiquities market.”

Hobby Lobby notes that “[s]ince 1990 [the date of the First Gulf War], [various U.S.] laws and regulations have, among other things, made illegal the importation of ancient cuneiform objects removed from Iraq after August 1990.” The buyer further observes that:

To comply with applicable United States’ [sic] import laws, prudent, law-abiding cuneiform collectors are careful to deal only in objects with an ownership history dating prior to 1990, establishing that the object was outside of Iraq and not stolen as of that date. Consequently, a provenance that documents the chain of title of Iraqi-origin cuneiform to a date prior to August 1990 is critical to a collector’s ability to demonstrate lawful ownership of and transferable title to an object.

B. Legal Framework of Iraqi Antiquities

The core issue at the heart of both cases is the legal and factual question of whether the Tablet was imported into the United States “contrary to law.” The basic principle is laid out in the U.S. civil forfeiture statute, which states that “merchandise which is introduced or attempted to be introduced into the United States contrary to law…shall be seized and forfeited if it…is stolen, smuggled, or clandestinely imported or introduced.” 19 U.S.C. § 1595a(c)(1)(A). The question of whether such importation is contrary to law is further expounded in 18 U.S.C. § 2314, which provides that “[w]hoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise…of the value of $5,000 or more, knowing the same to have been stolen, converted, or taken by fraud” violates the law. More particularly, as it relates to antiquities and certain other cultural property, such property is considered “stolen” for purposes of both the civil forfeiture statute and 18 U.S.C. § 2314 “if it was taken without official authorization from a foreign country whose laws establish state ownership of such cultural property.” See Forfeiture Complaint.

With respect to cuneiform tablets and other Iraqi antiquities, both U.S. and Iraqi law place restrictions on the export/import of certain Iraqi cultural property. The U.S. Iraq Stabilization and Insurgency Sanctions Regulations, Section 576.208 prohibits:

the trade in or transfer of ownership or possession of Iraqi cultural property or other items of archeological, historical, cultural, rare scientific, and religious importance that were illegally removed, or for which a reasonable suspicion exists that they were illegally removed, from the Iraqi National Museum, the National Library, and other locations in Iraq since August 6, 1990.

The legal landscape for potential collectors of Iraqi antiquities is further complicated by the fact that Iraq, like many archeologically rich nations, has a cultural patrimony law (originally dating from 1935) that deems all antiquities (defined as man-made objects that are at least 200 years old) found in Iraq to be property of the state. In those circumstances where private ownership of Iraqi antiquities is authorized under Iraqi law, export from Iraq is nevertheless prohibited.

Within this legal framework, where most private ownership and all legal export from Iraq is prohibited, legal importation of Iraqi antiquities into the U.S. is extraordinarily difficult, at least for those objects that have no clear provenance outside of Iraq before 1990. The ability to show a clear provenance where the antiquity was legally exported from Iraq is crucial, and that is where the Tablet’s past, present, and future difficulties lie.

C. An Unreliable Provenance

The Tablet made its first documented appearance in London around 2001. It was reportedly among a number of other encrusted and “unconserved” artifacts viewed by a U.S. antiquities dealer (the Dealer) at the London apartment of Jordanian antiquities dealer Ghassan Rihani, who reportedly died later that year. In the spring of 2003, the Dealer and a cuneiform expert met with members of Rihani’s family at the London apartment and viewed a number of cuneiform tablets, including the Tablet. The Dealer and the expert were of the opinion that the various cuneiform tablets were likely to be literary objects (rather than more commonplace business documents), and the Dealer purchased them from the Rihani family for $50,350. The objects (including the Tablet) were shipped to the United States. Around 2005, the Dealer shipped the Tablet to Princeton, where a scholar studied them for several weeks.

In 2007, the Dealer sold the Tablet (along with a translation prepared by the cuneiform expert) to two antiquities dealers for $50,000, but the Dealer did not initially provide the buyers with a provenance for the Tablet. When the buyers requested a provenance, the Dealer reportedly fabricated one – what the complaints term the “False Provenance Letter.” That provenance letter made no mention of Rihani, but instead claimed that the Tablet had been outside of Iraq and part of a 1981 auction by Butterfield & Butterfield in San Francisco. The False Provenance Letter claimed that the Tablet had been deaccessioned from a small [unidentified] museum, and had been part of Lot 1503, which the Butterfield & Butterfield 1981 auction catalog described as a “box of miscellaneous ancient bronze fragments.” See Forfeiture Complaint.

One of the buyers published the Tablet in a catalog, offering it for sale, and stating that the Tablet’s provenance was clean and that it had been in the possession of a single U.S. owner for 25 years. The Tablet was subsequently published in an October 2007 catalog by Michael Sharpe Rare & Antiquated Books, which stated that the Tablet would be accompanied by a translation, authentication, and “a clear provenance.” See Id.

In December 2013, a subsequent owner of the Tablet contacted the London office of the Auction House, wishing to consign the Tablet for a private sale. The Auction House offered the Tablet to the Museum, and in March 2014 a representative of the Museum viewed the Tablet in London. In July 2014, Hobby Lobby purchased the Tablet from the Auction House in a private sale for the purchase price of $1,674,000. Also in July 2014, the Auction House shipped the Tablet to its New York office, and later hand-delivered it to Hobby Lobby in Oklahoma City.

On July 22, 2014, the Museum’s registrar emailed the Auction House, noting that the invoice neither included a date for the Tablet nor its country of origin. The registrar also requested a copy of the auction listing for the Museum’s files. Communications between the Museum and the Auction House over questions and clarifications of the Tablet’s provenance continued until at least October 2017.

D. Looking Ahead

In an unusual move for a civil forfeiture case in which the Museum has cooperated with government’s investigation, in June 2020, Hobby Lobby filed a Claim of Interest, seeking the return of the Tablet to Hobby Lobby. The Claim of Interest enabled Hobby Lobby to serve discovery on the Auction House in forfeiture action, while Hobby Lobby was stymied in its Auction House litigation. In that action, relying upon the language of its sale contract, the Auction House moved to compel arbitration, a motion Hobby Lobby opposed. Both the Auction House’s arbitration motion and Hobby Lobby’s opposition are currently pending.

With the unsettling problems imposed by the pandemic, a curious stasis seems to have settled over much of life, lawsuits included. While facts may emerge to show that the Tablet was lawfully exported from Iraq and lawfully imported into the United States, the history of this artifact’s provenance suggests otherwise. What may emerge from these parallel cases is a more detailed than usual case study in the challenges of provenance for ancient objects, and perhaps a cautionary tale for collectors.

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©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume XI, Number 19
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About this Author

Kevin Ray, Greenberg Traurig Law Firm, Chicago, Bankruptcy Law Attorney
Of Counsel

Kevin Ray focuses his practice in the areas of art and cultural heritage law and financial services, such as lending transactions and restructuring/insolvency matters. He represents and advises artists, art galleries, art collectors, museums, and cultural institutions in a variety of transactions, including consignments, questions of title, provenance, and compliance with national and international law. He advises lenders and debtors on issues unique to art, antiquities, and other cultural property in a variety of lending and commercial transactions.

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