Maine Antique Digest April 2015

Maine Antique Digest, April 2015 27-A

- FEATURE -

Ivory Ban’s Effects on Collectors, Museums,

Musicians, and the Art Trade

by Kevin P. Ray

☞

n response to concerns that poaching

of African elephants is rapidly driv-

ing the species to extinction, the U.S.

federal government tightened restrictions

on the import, export, transfer, and sale

of African elephant ivory and rhinoceros

horn.

The revised restrictions followed

on President Obama’s July 2013 execu-

tive order committing the U.S. to increase

its efforts to halt wildlife trafficking.

According to the Wildlife Conservation

Society, “There were an estimated 1.2

million African elephants in 1980, but

now the population is down to less than

420,000... For forest elephants, a separate

species from the savannah elephant, the

news is worse. Ten percent of the pop-

ulation was killed in 2012, and another

10 percent in 2013.... With fewer than

100,000 left, extinction could be only 10

years away.”

Wildlife conservationists

argue that a complete ban on the sale of

ivory is necessary and is the only way to

stop poaching of elephants. Some have

suggested that a complete ban on ivory

actually facilitates further looting and an

illicit ivory market, and have urged the

creation of a limited, regulated, licit mar-

ket in ivory.

The new rule’s most controversial

change has been its limitation of the

antique exception to the general ban on

ivory, which previously allowed commer-

cial

and

noncommercial import, export,

transfer, and sale of objects at least 100

years old that were either made of ivory

or included ivory elements. The origi-

nal version of the amended rule that was

announced in February 2014 eliminated

the antiques exception in all commercial

contexts and substantially limited it in

noncommercial contexts. New York and

New Jersey have similarly tightened their

existing restrictions on the trade in and

transfer of ivory. California, Maine, and

Hawaii are expected to follow suit.

Response to this change was swift,

and, from many sectors, strongly nega-

tive, questioning what the new rule would

mean for the trade in art, antiques, musi-

cal instruments, antique guns, and other

objects either made of ivory or contain-

ing ivory elements. Collectors, museums,

orchestras, and musicians pointed out

that the new rule would ban much long-

standing collecting and cultural exchange

activity. The policy was modified in May,

in response to these objections, to clarify

and provide some protection for noncom-

mercial cultural activities. Despite that

modification, many in the arts commu-

nity remain concerned that even for activ-

ities that are apparently authorized by the

modified rule, the procedures and actual

implementation remain uncertain. When

antique objects of cultural and historic

importance are at issue, many are under-

standably wary of placing those objects at

risk of being detained or perhaps seized

and destroyed.

Critics find even the revised rule to

be over-broad, jeopardizing our under-

standing of the past by imposing current

standards of behavior, effectively editing

the past to suit contemporary tastes. “It is

wrong, and foolish, to project our scru-

ples on to the past,” Jonathan Jones wrote

in the

Guardian

in May 2014. “There is

no reason to abhor the wonderful master-

pieces created by past generations with a

technique we no longer ‘approve of,’ or

to deny ourselves the pleasure of these

artistic marvels. This is why American

antiques dealers are right to demand clar-

ification of current restrictions that seem

to potentially ban the sale of bona fide

historical objects.”

On July 10, companion bills were intro-

duced in the Senate (S. 2587) and House

of Representatives (H.R. 5052), the

“Lawful Ivory Protection Act of 2014,”

which would prevent the new ivory rules

from going into effect. The proposed bills

would amend the Endangered Species Act

(discussed below) to prohibit any regula-

tion going into effect after February 24,

2014, that would (i) prohibit or restrict

the possession, sale, delivery, receipt,

shipping, or transportation of elephant

ivory that has been lawfully imported; (ii)

change any methods of, or standards for,

determining if ivory has been lawfully

imported; or (iii) prohibit or restrict the

importation or possession of ivory that

was lawfully importable or possessable

on that date.

Amid this storm over the new rule, it

is important to attempt to clarify for col-

lectors, museums, musicians, and oth-

ers what activities are permitted under

the current rule and what activities are

forbidden.

Background to the Regulation of Ivory

Ivory regulation has long been complex,

“arising from the intersection of federal

statutory law, executive-branch orders,

and the guidelines imposed by interna-

tional conservation treaties. As animal

populations fluctuate, so do the laws.”

In U.S. domestic law, the protections and

obligations with respect to ivory that have

been promulgated under the Convention

on International Trade in Endangered

Species of Wild Fauna and Flora (CITES)

are implemented through the Endangered

Species Act (the ESA, which lists both

Asian and African elephants as endan-

gered, and provides that artifacts carved

of elephant ivory [“worked elephant

ivory,” in contrast to unworked or “raw”

ivory] may travel legally if accompanied

by documentation proving that their prov-

enance predates the ESA) and the African

Elephant Conservation Act (the AECA,

which broadly prohibits the import of raw

or worked ivory). The Lacey Act provides

for both civil and criminal penalties for

trade in wildlife that has been taken in

violation of any state or foreign wildlife

law or regulation.

CITES attempts to eliminate the illegal

trade in animals and plants, their parts,

and associated products (including ivory)

by means of a variety of mechanisms,

including domestically implemented

trade bans and licensing regimes. The

convention entered into force on July 1,

1975, and presently has 180 states as par-

ties. In 1989, CITES was amended to ban

the sale of new ivory. Critics of the CITES

ivory ban have pointed out that demand

for new ivory remains strong in Asia, par-

ticularly China, and that the net effect of

the ban has been to greatly increase the

price poachers are able to obtain for illicit

ivory.

Qualifying for the Antique Exception

to the Ivory Ban

Before the new rule went into effect,

objects at least 100 years old that are

either made of African elephant ivory or

included ivory components were exempt

from the general Endangered Species Act

(ESA) and Convention on International

Trade in Endangered Species of Wild

Fauna and Flora (CITES) ivory prohibi-

tion.

This changed dramatically under

the original version of the rule that was

issued in February 2014, which (i) wholly

eliminated the antique exception for com-

mercial transactions (i.e., sales), and (ii)

retained the antique exception for non-

commercial transactions only if the object

has not been sold after February 26, 1976.

Recognizing that the “noncommercial

movement of musical instruments and

certain other CITES pre-Convention”

objects are not “contributing to the poach-

ing crisis or to illegal trade,” the U.S. Fish

& Wildlife Service amended its earlier

order in May 2014.

As modified inMay, the rule now allows

qualified antiques to be imported for non-

commercial purposes (loans, traveling

exhibitions, etc.). However,

commer-

cial importation of

any

African elephant

ivory is allowed, even if those objects

would otherwise qualify as antique.

To qualify for the noncommer-

cial antique exception, the importer or

exporter must show (through appropriate

documentation) that the object:

(i) is at least 100 years old; (ii) is com-

posed in whole or in part of an ESA-

listed species; (iii) has not been repaired

or modified with any ESA-listed species

after December 27, 1973; and (iv) is

being or was imported through a desig-

nated endangered species “antique port.”

The U.S. established 13 “antique ports”

on September 22, 1982, and required

that all imports of ESA-listed species be

made exclusively through those desig-

nated ports. These antique ports are Bos-

ton, New York, Baltimore, Philadelphia,

Miami, San Juan, New Orleans, Houston,

Los Angeles, San Francisco, Anchorage,

Honolulu, and Chicago.

Objects that were imported before

September 22, 1982, (and so before the

antique ports were established) may still

qualify for the antique exception, but

the documentation accompanying such

objects must satisfy the first three of the

above-listed criteria.

Commercial Import, Export, and

Interstate Sales

No commercial importation of Afri-

can elephant ivory is permitted (effective

February 25, 2014). Commercial export

of worked African elephant ivory is per-

mitted, provided that the ivory is accom-

panied by a CITES pre-convention certif-

icate showing that it was removed from

the wild no later than February 26, 1976.

Raw African elephant ivory may not be

exported.

Interstate sale of African elephant ivory

is permitted, but only if the seller shows

(through appropriate documentation)

that (i) the object was lawfully imported

prior to January 18, 1990 (the date that

the African elephant was listed in CITES

Appendix I), or (ii) the object was (or its

ivory components were) imported under a

CITES pre-convention certificate.

Since

interstate commerce in ivory derived

from species other than African elephants

is separately regulated, anyone attempting

to sell any ivory in interstate transactions

must be able to document the species the

applicable ivory is derived from.

Forms of ivory are, in fact, derived

from many different species, a number

of which fall within different regulatory

schemes. For instance, ivory is derived

from walruses, warthogs, hippopotami,

mammoths, mastodons, and narwhals.

Whale tooth ivory is regulated by not

only the ESA and CITES, but also by the

Marine Mammal Protection Act.

While it is possible to identify elephant

ivory from other types of ivory, it is not

possible “to distinguish between African

and Asian elephant ivory visually or by

most analytical methods, with the excep-

tion of DNA analysis.” Moreover, “As

ivory desiccates it loses its surface luster

and becomes harder. With the passage of

time, these changes can make visual iden-

tification more difficult. Indeed, ancient

ivory, bone and wood (as from archaeo-

logical contexts) can appear quite similar,

requiring the use of analytical testing for

identification.”

The difficulty of distin-

guishing ivory species and ivory age by

visual inspection alone makes maintain-

ing full and accurate documentation of

ivory and ivory-containing objects essen-

tial. Such documentation should include

any CITES permits or certificates, cer-

tified appraisals, bills of sale, and docu-

mentation of the place and date the object

was manufactured. Unfortunately, many

objects in private and public collections

either wholly lack this documentation or

are incompletely documented. This lack

of documentation may render ivory and

ivory-containing objects unsalable and

may also preclude their export.

Personal Ownership and Personal Use

The new rule does not prohibit personal

ownership of either worked or raw Afri-

can elephant ivory, but the general rule

prohibiting its commercial importation

does apply. Therefore, it is not possible

for an individual to purchase either raw

or worked African elephant ivory abroad

and bring it to the U.S.

There are, however, three circumstances

in which such ivory may be imported for

noncommercial personal use. The first

two of these circumstances have common

requirements. Worked African elephant

ivory may be imported for personal use

either (a) as part of a household move, or

(b) as part of an inheritance. In each case,

importation is permitted only if (i) the

ivory was legally acquired before Febru-

ary 26, 1976, (ii) the ivory has not been

transferred from one person to another

person “in pursuit of financial gain or

profit” after February 25, 2014, and (iii)

the item is accompanied by a valid CITES

pre-convention certificate.

The third circumstance in which impor-

tation is allowed is for sport-hunted tro-

phies. African elephant ivory (either

worked or raw) may also be imported as

part of a sport-hunted trophy.

Museum Acquisitions and Loans

The new ivory rule has striking impacts

on museum acquisitions and loans. In a

June 2014 presentation to the U.S. House

of Representatives Subcommittee on

Fisheries, Wildlife, Oceans and Insular

Affairs (now defunct), the Association of

Art Museum Directors warned that “two

vital components of museum activities

have been impacted [by the new ivory

rule]: the ability of U.S. Art Museums to

acquire new works and the ability of U.S.

Art Museums to take part in exchanges of

international exhibitions and direct loans

with foreign lenders.”

Before the new rule was issued in Febru-

ary, U.S. museums could acquire antique

ivory and objects containing ivory from

sellers abroad and import them. After

February 25, 2014, museums may acquire

ivory only in interstate sales within the

U.S. Gifts to museums of ivory objects

are permitted, provided the objects have

proper documentation. Ivory-contain-

ing objects in U.S. museum collections

whose importation would now be prohib-

ited include (i) an Etruscan bronze chariot

inlaid with ivory (Metropolitan Museum

of Art), (ii) a 6th-century Byzantine ivory

pyx (Cleveland Museum of Art), (iii)

a 14th-century French diptych (Detroit

Institute of Arts), and (iv) an 18th-cen-

tury German sculpture,

Christ Crucified

(National Gallery of Art). Worked Afri-

can elephant ivory and objects containing

such ivory may be imported for museum

exhibitions only if the following criteria

are satisfied: (i) the ivory was legally

acquired prior to February 26, 1976, (ii)

the ivory has not been transferred from

one person to another in the pursuit of

financial gain or profit after February

25, 2014, (iii) the person or group seek-

ing to import the object qualifies for a

CITES traveling exhibition certificate,

and (iv) the object is accompanied by a

valid CITES traveling exhibition certifi-

cate or an equivalent CITES document.

Raw African elephant ivory cannot be

imported, even for museum loans.

The effects of the new rule on museum

loans are already being felt. In October,

several mummies and their associated

funerary objects that were being imported

for the exhibition

Afterlife: Tombs and

Treasures of Ancient Egypt

were detained

by customs officials in Miami. The funer-

ary objects included ivory vessels and