Ancient Egyptian mask likely to stay at St. Louis Art Museum after feds give up legal fight
ST. LOUIS • The Department of Justice is giving up its fight to reclaim for Egypt a 3,200-year-old mummy mask that disappeared from that country decades ago and later found its way into the collection of the St. Louis Art Museum.
“The Department of Justice will take no further legal action with respect to the mask of Ka-Nefer-Nefer,” U.S. Attorney Richard Callahan said in response to questions from the Post-Dispatch on Monday, the deadline for the Department of Justice if it wished to prolong the court battle.
Museum officials couldn’t be reached immediately for comment. According to court filings, both sides are still discussing payment of the museum’s legal fees.
The mask was excavated in 1952 from a storage room near the step pyramid of Saqqara and was one of the items found with the mummified body of Ka-Nefer-Nefer, a noblewoman at the court of Ramses II.
The mask disappeared from storage in Egypt sometime between 1966 and 1973. The museum bought the mask in 1998 from a New York art dealer for $499,000.
When Egyptian authorities learned in 2006 that the museum had the mask, they began trying to get it back.
After negotiations failed, the federal government threatened to sue, but lawyers for the museum beat them to the courthouse, filing their own suit in January of 2011.
On March 31, 2012, U.S. District Judge Henry Autrey dismissed the government’s forfeiture lawsuit, saying that the Department of Justice failed to claim or prove that the mask was actually stolen.
“The Government cannot simply rest on its laurels and believe that it can initiate a civil forfeiture proceeding on the basis of one bold assertion that because something went missing from one party in 1973 and turned up with another party in 1998, it was therefore stolen and/or imported or exported illegally,” he wrote. He also said that lawyers failed to identify the law that had supposedly been broken when it was “illegally” imported into the U.S.
Government lawyers appealed.
On June 12, a three-judge panel of 8th U.S. Court of Appeals agreed with Autrey. The panel also said that the government “elected to ‘stand or fall’ on its untested legal theory” rather than add to the lawsuit, and missed a deadline to amend or appeal the suit.
Appeals Judge Diana E. Murphy said in a concurring opinion that the government could have cured the lawsuit’s deficiencies by listing other statutes that were violated by the mask’s importation, and by claiming that art dealers and the St. Louis Art Museum “knew or were willfully blind’ to facts including the mask’s ownership by Egypt, ineligibility for private ownership, and lack of a proper license.”
“While this case turns on a procedural issue,” Murphy wrote, “courts are bound to recognize that the illicit sale of antiquities poses a continuing threat to the preservation of the world’s international cultural heritage. Museums and other participants in the international market for art and antiquities need to exercise caution and care in their dealings in order to protect this heritage and to understand that the United States might ultimately be able to recover such purchases.”
On Monday, Callahan acknowledged that his office only had “a lack of record showing a lawful transfer,” not proof the mask was stolen.
“The evidence that we had showed that the mask was in the lawful possession of the Egyptian authorities for several years, and then there was a period with no activity,” he said. After that, “the mask was not in the possession of the Egyptian authorities anymore and there was no paperwork to support the theory that it lawfully left.”
The museum has said that the mask was part of a private collection in the 1960s, and was purchased in Switzerland by a Croatian collector, Zuzi Jelinek. Jelinek sold the mask to Phoenix Ancient Art in New York in 1995, the museum said.
The museum has said that it researched the mask’s ownership history before buying it, reaching out to Interpol, the Art Loss Register and others.
But critics continue to question whether the museum has a moral and ethical obligation to return the mask.
Monday was the deadline for the department to ask for a rehearing of the June 12 decision by the 8th U.S. Court of Appeals.
Robert Patrick covers federal courts and federal law enforcement for the Post-Dispatch. Follow him on Twitter: @rxpatrick.