Archives and the Ethics of Replevin

One of the most contentious cultural property stories of the early 21st century is the restitution of displaced treasures, from Nazi-stolen artwork to looted archeological finds to rare manuscripts. "Replevin," according to lawyerarchivist Menzi L. Behrnd-Klodt, "is one of several ancient common law remedies used to recover wrongfully taken personal property from whomever took it or holds it unlawfully."1 When analyzed in simple terms, returning stolen objects to the rightful owner clearly is the right thing to do. In 2012, newspapers reported that Barry H. Landau, a once respected presidential historian, was convicted of removing manuscripts from archives. His finds included letters by Marie Antoinette, Karl Marx, and Franklin Roosevelt. He was sentenced to seven years in jail and forced to pay $46,525 in restitution to dealers who had bought manuscripts from him in good faith. Several thousand documents were recovered from his residence and returned. More displaced documents are currently being traced. By all accounts, justice has been served.2Several spectacularly successful replevin and restitution actions have recently wrested valued acquisitions from well-funded museums.3 In 2007, after years of legal wrangling and public controversy, the J. Paul Getty Museum of Los Angeles returned 40 ancient masterpieces to Italy including a massive statue of Aphrodite. The Metropolitan Museum of Art of New York, which in 1972 acquired a rare, classic painted vase called the Euphronios krater, returned it to Italy in 2008 after lengthy and contentious negotiations. The United States government has cooperated with the government of Mongolia to reclaim and repatriate a dinosaur skeleton, eight feet high and twenty-four feet long, removed from the Gobi desert for sale in the United States. The Mongolian police, Interpol, and the U.S. Immigration and Customs Enforcement were all involved. Through the process of restitution litigation, the long-dead dinosaur has become a celebrated symbol of national pride in Mongolia, and its return scheduled for 2013 is cause for a hero's welcome.4 Treasures occasionally, although less frequently, travel in the opposite direction across the Atlantic. In 2006, the Osterreichische Galerie Belvedere in Vienna was forced to surrender five masterpieces by Gustav Klimt, paintings restituted to distant heirs now living in the United States, again after a protracted court battle.5Like paintings, antiquities and fossils, archives are cultural property and many of the same principles apply. If anything, public records, as a nation's memory, have a stronger claim to inalienability than artwork. This claim has been recognized in treaties for hundreds of years.6 Leopold Auer has identified dozens of international disputes over archival collections. Many such disputes have festered for decades.7 In 1866, France seized 297 volumes of Korean royal archives, which ended up in the Bibliotheque nationale de France where they were cataloged as Chinese manuscripts. Then in 1993, President Mitterand returned one volume to South Korea. The remaining 296 went back home in 2011, after 145 years.8 Books and manuscripts have long had a revered place in Korean culture, which produced the first book printed with moveable metal type in 1377, long before Gutenberg. Some curators claim that the pendulum has swung too far in the direction of returning displaced cultural property, to the extent that scholarship is inhibited, the public is deprived of educational experiences, and the objects themselves are endangered.9 Can well intentioned restitution efforts simply result in manuscripts being displaced a second time, with all the attendant hazards? In the international arena, the current debate pits collectors such as museums and archives in the receiving countries against aggrieved parties in the source countries. Both sides have strong justifications for their claims.Because laws can be changed and reinterpreted, and judicial decisions are frequently inconsistent, this essay will focus on the moral and ethical arguments and justifications, not the legal ones. …