How Museums Acquire Antiquities Is Changing

With new rules and new roles, institutions are hoping to avoid the cost and reputational harm of repatriation.

Vase with an enema scene, Maya culture, Guatemala, ca. AD 700–800, Earthenware, H. 4 1/8 in. (10.5 cm), San Antonio Museum of Art, Gift of John and Kathi Oppenheimer, 2023.7.124. San Antonio Museum of Art

The San Antonio Museum of Art recently announced the acquisition of two sizable collections of pre-Columbian objects (ceramic and stone figures and vessels, in large measure) to augment its Art of the Americas collection. The gift came from two local families that have long ties with San Antonio cultural institutions and even longer histories of purchasing these types of items.

We could just stop there—because that is good news. However, older objects, particularly antiquities and archaeological or ethnographic items, increasingly have been the subject of claims and lawsuits by foreign governments and Native American tribes demanding pieces be returned to them, particularly those they assert were taken via looting, art and antiquities theft or just without permission. Are the 300+ pre-Columbian objects recently accessioned by the San Antonio Museum of Art in these two collections a boon… or a headache waiting to happen?

A quick look finds instances of recent repatriation by the Cleveland Museum of Art (a bust of Marcus Aurelius), Walter P. Chrysler Museum (stolen statue “Wounded Indian”), Beltrami County Historical Society (Native American artifacts), Smithsonian Museum of Natural History (Native American human remains), Virginia Museum of Fine Arts (forty-four artifacts returned to Egypt, Italy and Turkey), Emory University’s Carlos Museum (antiquities returned to Italy), Metropolitan Museum of Art (sculptures returned to Cambodia and Nepal), Princeton University Art Museum (eleven artifacts returned to Italy) and Worcester Art Museum (bust of Marcus Aurelius’ daughter). The list is longer, but you get the idea.

Acquiring older cultural objects through purchase or donation can be risky for museums if they suspect the art or artifacts might have to be returned to a foreign government at some point. “There is reputational harm if you have to repatriate something,” Patty Gerstenblith, director of the Center for Art, Museum and Cultural Heritage Law at DePaul University in Chicago, told Observer. “It looks bad for the institutions involved,” as it suggests curators “just wanted things and didn’t care or look closely at how these objects came their way.” Museums don’t end up in legal jeopardy—no one goes to jail—but these institutions are in the business of acquiring pieces, not giving them away, and losing objects is viewed in the field as a catastrophe.

SEE ALSO: The Year in Museums – Controversy, Repatriation and More

Lowering the risk of a bad outcome requires museums to undertake extensive research and analysis of proposed accessions, and the process of accepting the two collections at SAMA lasted two full years, according to Emily Neff, director of the museum. The larger of the two collections, donated by John M. and Kathi Oppenheimer and featuring nearly two hundred objects that represent societies in what is now Mexico, as well as Central America, primarily were “collected in the 1950s and ‘60s by Herbert Oppenheimer and his son John,” she said, with “a few pieces collected after 1970.” The documentation that the museum has examined consists of the family’s receipts from dealers and auction houses through which the Oppenheimers purchased items. “We check those dealers and auction houses to make sure that they are legitimate and reputable. We also have an oral history,” read statements by the Oppenheimers concerning where and when objects were bought.

A woman in a black zippered top stands in front of a white wall with paintings hung on it
Emily Neff. Josh Huskin

She added that the work of determining where objects had come from, as well as the chain of ownership leading to coming into the permanent collection of SAMA, “is never done. It is ongoing.” In 2021, the museum returned to Italy eleven Greco-Roman pottery and drinking vessels from its permanent collection, part of a group of 200 antiquities that the Manhattan District Attorney’s office had identified as having been looted and illegally exported from Italy by Edoardo Almagià, an antiquities dealer based in Rome who had been accused of orchestrating a three-decades-long smuggling operation. Other museums that returned antiquities from the group were the Cleveland Museum of Art, the Getty Museum and the Museum of Greek, Etruscan, and Roman Art at Fordham University.

Receiving donations of objects does not necessarily cost a museum anything, but the process of researching the provenance of objects that an institution looks to acquire as a gift or purchase, as well as pieces already in its collection, “is expensive, and it takes a lot of time,” Neff said. “It is expensive work, but it is important work. We’re all trying to do this work and navigate the situation.”

At the San Antonio Museum of Art, the process of evaluating the offered donation of the two pre-Columbian collections required a team consisting of the curator of Latin American art, a postdoctoral expert in pre-1500 Mesoamerican archaeology, the chief curator, the director of collections and exhibitions, members of the museum board and the museum’s legal counsel.

An evolving roadmap for antiquities acquisitions

“There are no regulations or laws requiring museums to do any particular type of due diligence” for the objects they accession, said Nicholas M. O’Donnell, a partner in the Boston-based law firm Sullivan & Worcester and co-chair of the Art, Cultural Property and Heritage Law Committee of the International Bar Association. However, “collections management policies usually are part of the governance of museums,” and these establish guidelines for how artworks and other cultural property become part of the institution’s permanent collection.

Nicholas M. O’Donnell. Courtesy Nicholas M. O’Donnell

Additionally, most major museums in the United States are members of organizations—most notably, the American Alliance of Museums, the Association of Art Museum Directors and the International Council on Museums—with certain procedures that their member institutions are expected to follow. In 2008, the Association of Art Museum Directors issued a best practices statement on the acquisition of ancient and archaeological objects, identifying 1970, the year of the UNESCO Convention to stop the illicit trafficking of cultural property, as a benchmark for institutions considering the acquisition of objects from countries around the world.

Museums contemplating the accession of cultural objects that entered the U.S. after 1970 should require a history of ownership or provenance, as complete as possible, and a valid export license from the country of origin. Museum officials need to check that all documents are valid and that laws of the country of origin concerning the export of cultural property, as well as any bilateral agreements between the U.S. and another country, have been adhered to. Objects that came into the U.S. before 1970 are not subject to the same scrutiny.

It is understood that ancient objects often may lack a full ownership history, and the Association recommends that museum officials use “informed judgment” regarding the likelihood that pieces were sold and exported legitimately, as well as post on the AAMD website an image of, and information about, the work for all to see.

Museum due diligence means asking a series of questions and trying to get answers. According to Rick St. Hilaire, a lawyer with a focus on transnational cultural heritage crime, museum officials should know where and when an object was excavated, if there is a good title to the piece, if it had been legally exported from the country of origin and legally imported into the U.S. if the item has a history of being displayed and published if there is a chain of sales for the object and if the piece is authentic. “There are a lot of fakes out there,” he told Observer. Okaying an object for museum accession requires different types of expertise.

Among the items that may be faked are sales documents, which should be carefully scrutinized, not merely logged. In 2019, the Metropolitan Museum of Art returned to Egypt a 2,000-year-old wooden coffin with gold casings carrying hieroglyphic inscriptions and embedded with black crystal, ivory and lapis lazuli that the museum had purchased two years before for $4 million. The coffin had been buried in Egypt for 2,000 years before it was stolen from the country’s Minya region in the aftermath of the 2011 uprising that toppled then-President Hosni Mubarak. It was smuggled through several countries by an international trafficking ring and turned up with ownership history documents and an export license that were found to be forgeries. “It seemed no one at the Met knew how to read Arabic,” Gerstenblith said.

A new role at museums: provenance researcher

These days, the Metropolitan Museum is in the process of hiring provenance researchers, which is another trend in the museum field along with repatriating objects that should not have been there in the first place. The Smithsonian Museum of Natural History recently hired a repatriation program manager, and the San Antonio Museum of Art this year named its first-ever associate curator of provenance research. Both the Nelson-Atkins Museum of Art in Kansas City, Missouri and the Cleveland Museum of Art have full-time provenance researchers, and Boston’s Museum of Fine Arts has had its curator of provenance, Victoria Reed, since 2003.

Flute with effigy carvings, Chancay culture, Peru, ca. AD 1300, Bone, W. 8 in. (20.3 cm), San Antonio Museum of Art, Gift of Lindsay and Lucy Duff, 2023.12.5. San Antonio Museum of Art

When Reed was first hired, her focus was the museum’s Art of Europe collection, particularly examining artworks that might have been confiscated from private owners during the Nazi era but since 2010, she and her half-time researcher have seen their bailiwick expanded to all of the collections in the MFA. Conversant in French, German and Italian, she now seeks out curators from the various departments to translate documents.

In 2014, the museum was offered a collection of 325 African and Oceanic objects, of which all but ten were accessioned by the museum—two from Mali and eight from Nigeria—because of questions regarding their export licenses from those two countries, and those items were sent back to their countries of origin. “We’ve seen a number of faked documents,” she said, noting that dead giveaways are “inconsistent spellings or something not written on letterhead paper.” One of the Nigerian objects had an export license from the 1990s, “exactly when the Nigerian government was warning the world about looting and fake export licenses, so sending that back was an easy decision.”

Turning down the opportunity to acquire an object that is stellar or that won’t likely come up for sale again may be difficult for museum officials, but they are increasingly walking away from gifts or chances to buy items that carry too much risk.

These days, “museums are more likely than in the past to turn down gifts that have missing provenance,” said David L. Hall, a partner in the Washington, D.C.-based law firm Wiggin and Dana and, before that, a special prosecutor for the FBI Art Crime Team. “In the past, there was more of a finders-keepers attitude, but there has been a change in cultural perceptions and, if museum officials are worried about the legal perils associated with an acquisition, they’ll avoid taking it. Who needs the headache?”

How Museums Acquire Antiquities Is Changing