Acquisition and Deacquisition of Museum Collections

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ACQUISITION AND DEACQUISITION OF
MUSEUM COLLECTIONS AND THE
FIDUCIARY OBLIGATIONS OF
MUSEUMS TO THE PUBLIC
Patty Gerstenblith*
In 1993, the Metropolitan Museum of Art ("Met") in New

York agreed to return to the Republic of Turkey the fabled Lydian
Hoard of late 6th century B.C. antiquities, a collection of over 360
objects, including fragments of wall paintings, marble sphinxes,
gold, silver and bronze vessels, and gold, silver and glass jewelry.'
The origin of the Hoard was in a series of tombs from the West-
Central part of Turkey, in the area of Gtire and U~ak, that were
looted in the mid-1960s. The objects were smuggled out of Turkey,
passed through the hands of New York antiquities dealers, and
purchased by the Met between 1966 and 1970. Because of the
Met's fears of discovery, the acquisition of this collection was not
announced and most of the objects remained in storage in the base-
ment, unavailable to scholars and the public. In 1984, several of
the vessels were put on display but were mislabeled as "East
Greek" in origin, to confuse any who would attempt to search out
the collection's true origin.2
Nonetheless, this display was sufficient to notify Turkish offi-
cials and archaeologists who knew of the tomb robberies and had
been searching for the objects that had been looted. After negotia-
* Professor, DePaul University College of Law. I want to thank Katherine Ivancevich

for her assistance in the research and preparation of this article. I also want to thank
Cardozo School of Law for inviting me to participate in the symposium at which this paper
was first presented.
1 Lawrence M. Kaye & Carla T. Main, The Saga of the Lydian Hoard Antiquities:
From Ulak to New York and Back and Some Related Observations on the Law of Cultural
Repatriation, in ANTiQUITIES TRADE OR BETRAYED: LEGAL, ETHICAL AND CONSERVA-
TION ISSUES 150 (Kathryn W. Tubb ed., 1995); ILKNUR OZGEN & JEAN OZTCRK, HERI-
TAGE RECOVERED: THE LYDIAN TREASURE (1996).
2 THOMAS HOVING, MAKING THE MUMMIES DANCE 217 (1994). Hoving also states
that the museum knew at the time it purchased the Hoard that the collection had been
illegally excavated and that a curator of the museum had documented the original loca-
tions of the objects in the field. Id. Nonetheless, the museum would wait for the Turkish
government to come up with the same proof independently before the museum would
return the objects. As it turned out, it took several years of litigation and negotiation for
the museum to agree to the restitution.
410 CARDOZO J. OF INT'L & COMP. LAW [Vol. 11:409
tions between Turkey and the Met failed, Turkey filed suit in fed-
eral district court, seeking the return of the collection. Despite the
later recollection of the Met's director, Thomas Hoving, that the
Met would return the hoard when Turkey presented evidence, the
museum resisted Turkey's claim for seven years. Only after a court
ruling denying the Met's motion to dismiss the claim on the basis of
the statute of limitations 3 and initial discovery did the museum
agree to return the entire collection to Turkey.4 The collection has
now been studied and published 5 and resides in a museum in U§ak.
However, the only way to determine the original find-spot of these
objects is through stylistic comparison with the objects recovered
by Turkish archaeologists in salvage excavations conducted after
the tombs were looted.6 Although the objects have been returned
to Turkey, there is information about the tombs and associated
materials that can never be retrieved and is forever lost to history
and science.
The later recounting of this episode by Mr. Hoving displays a
cavalier attitude and no concern whatsoever for the loss of this cul-
tural and historical information. He indicates that the museum
knew all along that the hoard had been illegally excavated in recent
times, that he knew the objects were in effect stolen, and that the
museum was willing, at the time of acquisition, to take the risk that
it would someday have to return the objects.' Newspaper reports
indicate that the Metropolitan paid $1.2 million for the acquisi-
tion.8 Yet Hoving also displays no concern for the squandering of
museum financial assets in undertaking this acquisition.
This episode in the history of American museums concluded
nearly a decade ago, but it probably remains the most extreme ex-
ample of a blatantly misguided acquisition that led to the need to
deacquistion. 9 It squarely raises the questions of how a museum
3 Republic of Turkey v. Metropolitan Museum of Art, 762 F. Supp. 44 (S.D.N.Y.

1990).
4 Kaye & Main, supra note 1, at 153-54.
5 OZGEN & OZTORK, supra note 1.
6 Id. at 11. The testimony of the tomb robbers was also used to help identify the
origins of the pieces. In some cases, the wall paintings and some objects could be matched
to their original locations.
7 HOVING, supra note 2, at 217.
8 Mike Toner, The Past in Peril: Coveting Thy Neighbor's Past, ATLANTA J. & CONST.,
Nov. 7, 1999, at 1Q [hereinafter Toner, Coveting Thy Neighbor's Past].
9 Both the Metropolitan Museum and other museums have had to deacquisition other
holdings in their collections in recent years. The Metropolitan itself has returned heads of
a 10th century Khmer temple sculpture to Cambodia in 1996 and a 10th century stone
2003] FIDUCIARY OBLIGATIONS OF MUSEUMS
could undertake this action and what role the museum's fiduciaries
should have played, as those legally responsible for oversight of the
conduct of the museum's professional staff and accountable to the
public to see that the museum's resources are devoted to the public
and educational purposes of the museum.
This article will examine the issues raised by the deacquisition
of museum collections in the restitutionary context, as illustrated
by the story of the Lydian Hoard. Despite the fact that deacces-
sioning can occur in a variety of circumstances, this article will ad-
dress deaccessioning that occurs only in a very particular
circumstance-when an object is returned to an original owner,
from whom it has been stolen, whether a foreign country, public
institution or private owner, or to a Native American tribe. The
reason for addressing this type of deaccessioning is that it has been
suggested that such removal from a museum's collection consti-
tutes a violation of the trustees' fiduciary obligation of care. How-
ever, this article proposes the thesis that such restitution does not
breach these fiduciary obligations. Rather, the failure of museum
trustees to adopt and implement acquisitions policies that would
avoid the need for such restitutions may well constitute a breach of
these obligations.
I. NONPROFIT ORGANIZATIONS AND FIDUCIARY OBLIGATIONS
A. The Nature of Museums as Educational Institutions

Nonprofit organizations fill many crucial roles in our society.
Often they take the form of charitable organizations, such as
churches, schools and hospitals; others are trade associations, rec-
reational clubs and volunteer service organizations. As such, they
satisfy social needs, relieve the burdens of government, and en-
hance the lives of many; they also attract large sums of money in
the form of charitable gifts, as well as the time and efforts of count-
less volunteers.10 Both business organizations and nonprofit orga-
nizations take their organizational structure under state law, which
regulates the formation, structure, operation, legal rights and du-
ties and dissolution of such organizations. The legal forms that are
Buddha to India. The Denver Art Museum returned a 1,300-year-old carved Maya lintel
to Guatemala. The J. Paul Getty Museum returned three pieces to Italy. Toner, Coveting
Thy Neighbor's Past, supra note 8.
10 HOWARD L. OLECK & MARTHA E. STEWART, NONPROFIT CORPORATIONS, ORGANI-
ZATIONS & ASSOCIATIONS 1-2 (Prentice Hall, 6th ed. 1994).

most generally available to nonprofit organizations are the charita-

ble trust, the unincorporated association and the nonprofit corpo-
ration. 1 Most such organizations that are of any size or that
engage in any legal transactions, such as the holding of property,
choose to incorporate under state law, as this grants legal advan-
tages, including limited 1liability
2
for those who run the organization
and perpetual duration.
The primary difference between business (or for-profit) orga-
nizations and those that are nonprofit (or not-for-profit) is found in
the restriction in the ability of nonprofit organizations to distribute
any profits that are earned to the members of the organization.
Known as the "non-distribution constraint,' 1 3 this requirement is
necessary for nonprofit organizations to receive preferential treat-
ment under both state and federal law 14 and means that the mem-
bers, officers and directors of the organization do not receive any
profit from the activities of the organization. A "not-for-profit"
organization may, in fact, earn a profit; it simply cannot distribute
that profit to its membership but must instead utilize that profit to
further its not-for-profit purpose. 15 The lack of members with a
financial interest, such as shareholders, or of defined beneficiaries,
as in private trusts, leads to difficulty in oversight and enforcement
of appropriate standards"of conduct for the managers of nonprofit
organizations. 16 In addition, standing to enforce these standards of
1i Id. at 32-35; Jennifer L. White, When It's OK To Sell the Monet: A Trustee-Fiduciary-
Duty Frameworkfor Analyzing the Deaccessioningof Art To Meet Museum OperatingEx-
penses, 94 MICH. L. REV. 1041, 1049-51 (1996).
12 OLECK & STEWART, supra note 10, at 33-34; White, supra note 11, at 1050.
13 Henry B. Hansmann, The Role of Nonprofit Enterprise, 89 YALE L.J. 835, 838-39
(1980).
14 Id. A nonprofit organization is defined in the 1964 Revised Model Nonprofit Corpo-
ration Act, §2(c), as a corporation "no part of the income or profit of which is distributed
to its members, directors or officers." The term "not-for-profit" is technically more accu-
rate than "nonprofit" because it expresses the concept that such organizations may earn a
profit; however, their organizational purpose cannot be the earning of profit, as in the case
of business organizations. OLECK & STEWART, supra note 10, at 11.
15 Henry B. Hansmann, The Rationale for Exempting Nonprofit Organizationsfrom
Corporate Income Taxation, 91 YALE L. J. 54, 56-57 (1981). Reasonable compensation
may be paid to members, directors and officers who render services to the nonprofit organ-
ization without violating the non-distribution constraint. Henry B. Hansmann, Reforming
Nonprofit CorporationLaw, 129 U. PA. L. REV. 497, 501 (1981). Officers and trustees may
also reap non-pecuniary benefits, such as status and prestige, without violating this
prohibition.
16 White, supra note 11, at 1050-51.
2003] FIDUCIARY OBLIGATIONS OF MUSEUMS 413
conduct is generally restricted to the state attorney general 17 who,

under a wide array of pressures and responsibilities, may or may
18
not be able to provide effective oversight.
Within the broader category of nonprofit organizations exists
a smaller group, those nonprofit organizations that are classified as
either public benefit or charitable organizations.1 9 Such organiza-
tions receive significantly more advantageous tax treatment at the
federal and state levels, but are restricted to a narrower category of
permissible purposes and stricter regulation of their activities and
dissolution processes.2 0 The permissible purposes of this category
of nonprofit organizations are more restrictive, yet generally in-
clude educational and scientific purposes. In the United States,
most museums qualify as charitable or public benefit organizations
because of their educational and sometimes scientific purposes.21
17 Hansmann, The Role of Nonprofit Enterprise, supra note 13, at 873-75; Jaclyn A.
Cherry, Update: The Current State of Nonprofit Director Liability, 37 DUB. L. REV. 557,
568 (1999); Hansmann, Reforming Nonprofit CorporationLaw, supra note 15, at 600-01.
Enforcement, particularly for those organizations whose contributions qualify for tax de-
duction by donors, is also provided by the Internal Revenue Service through excise taxes
and, in more severe cases, denial of tax-exempt status. Id. at 601-06. Patrons (both donors
and beneficiaries) are generally denied standing, although some commentators have ar-
gued for the grant of standing to at least some identifiable group of people. Id. at 606-15.
See Stern v. Lucy Webb Hayes Nat'l Training Sch. for Deaconesses and Missionaries, 367
F. Supp. 536 (D.D.C. 1973) (granting standing to group of patients to sue hospital directors
for financial mismanagement and self-dealing); Jones v. Grant, 344 So. 1210 (Ala. 1977)
(granting standing to students, faculty and staff to sue college president and directors for
breach of duty).
18 Cherry, supra note 17, at 568 (describing reasons why state attorney general over-
sight is often ineffective). State regulators have tended in recent years to focus on abuses
in the solicitation of charitable funds, rather than breaches of director or trustee duties.
19 Nonprofit organizations are typically divided into two categories: the public benefit
and the mutual benefit organizations. OLECK & STEWART, supra note 10, at 10. Public
benefit organizations often encompass those that are classified under the Internal Revenue
Code as "charitable organizations." I.R.C. § 501(c)(3). Some state statutes and the 1987
Revised Model Nonprofit Corporation Act utilize a tripartite categorization for nonprofit
corporations, adding religious corporations as the third category and generally imposing
less oversight and fewer regulations on this category. Henry B. Hansmann, The Evolving
Law of Nonprofit Organizations:Do CurrentTrends Make Good Policy?, 39 CASE W. RES.
L. REV. 807, 819-22 (1988-89).
20 OLECK & STEWART, supra note 10, at 12-14.
21 See U.S. Treas. Reg. § 1.501(c)(3)-1(d)(3)(ii); OLECK & STEWART, supra note 10, at
284; Commonwealth v. The Barnes Found., 159 A.2d 500 (Pa. 1960) (holding that for a
museum to obtain tax-exempt status, it must serve a public benefit purpose by opening its
collection to the public); Stephen E. Weil, From Being about Something to Being for Some-
body: The Ongoing Transformation of the American Museum, AMERICA'S MUSEUMS,
DAEDALUS, VOl. 128:3, Proceedings of the American Academy of Arts and Sciences 229,
The way American museums' educational and scientific pur-
poses are understood has changed significantly over time. Muse-
ums in the post-World War II era have been described as being in
the "salvage and warehouse business. '22 Their goal was to gather,
acquire, preserve and study the record of human and natural his-
tory.23 In that sense, museums were certainly fulfilling an educa-
tional and scientific purpose by adding to the store of human
knowledge about a wide range of subjects, including the history of
human civilization, broader definitions of life, and the natural sci-
ences. However, understanding of this educational purpose has
shifted significantly. Most museums now view their educational
mission to be one of interpretation and presentation, not just to a
narrow scholarly community or to those already accustomed to vis-
iting museums, but to the neighborhood community and the public
at large. As such, museums have been forced to reach out into the
community and to become part of it through novel exhibits that are
not always focused on the presentation of objects.2 4 This evolving
understanding of the mission of museums as educational institu-
tions raises new questions as to the interpretation of whether and
how museums are fulfilling their educational purpose.
As educational and charitable organizations, museums qualify
for preferential treatment under state law and, of even greater ben-
efit, for tax-exempt status under section 501(c)(3) of the Internal
Revenue Code as "charitable organizations. ''2 Not only do section
501(c)(3) organizations pay no income tax on any profit they
earn, 26 but donations given to them qualify as deductions either
238 (1999) (stating that the majority of museums in the United States are nonprofit
organizations).
22 Id. at 229 (quoting Barbara Franco, director of The Historical Society of Washington,
D.C.).
23 Id.
24 Id. at 233-38; Willard L. Boyd, Museums as Centers of Controversy, AMERICA'S MU-
SEUMS, DAEDALUS, Vol. 128:3, Proceedings of the American Academy of Arts and Sci-
ences 185, 199-203 (1999).
25 Section 501(c)(3) organizations are defined as those organizations which are "organ-
ized and operated exclusively for religious, charitable, scientific, testing for public safety,
literary, or educational purposes, and to foster national or international amateur sports
competition or for the prevention of cruelty to children or animals." The basic require-
ments to qualify as a § 501(c)(3) organization are that the organization must be organized
and operated for one of the specified purposes; there must be no personal benefit that
accrues to private individuals, members or officers of the organization; the organization
must not engage in prohibited lobbying or political campaign activities. OLECK & STEW-
ART, supra note 10, at 279.
26 Id. at 277 (with the exception of the unrelated business income tax).
from income for individuals and corporations 27 or from the valua-

tion of an estate for estate tax purposes.2 8 Under state law, charita-
ble organizations may be exempt from property tax, sales tax and
other state and local taxes. 29 While many of the other advantages
traditionally given to charitable organizations have significantly de-
creased in recent years, 30 the tax advantages have largely re-
mained. On the other hand, government entities now give
increased scrutiny to the conduct of charitable organizations' direc-
tors and trustees.3 1
In addition to these indirect subsidies, museums often receive
direct grants of public funds. For example, the major New York
museums, such as the Metropolitan Museum of Art and the Brook-
lyn Museum, lease the land on which they are located from the
City at a nominal rent and receive funds that directly subsidize
their general operating budgets.3 2 Museums throughout the coun-
try also routinely receive public grants for specific purposes, such
as for particular exhibitions or research projects.3 3 Stephen Weil
27 I.R.C. § 170(a).
28 I.R.C. § 2055. Lifetime gifts are also exempt from payment of gift tax. I.R.C. § 2522.
29 OLECK & STEWART, supra note 10, at 419-47.
30 Charitable nonprofits were exempt until the mid and even late 20th century from a
large number of legal rules such as those regulating minimum wage, unfair trade practices,
social security, collective bargaining, antitrust activities and involuntary bankruptcy. In ad-
dition, many enjoyed exemption from tort liability under the rules of charitable immunity.
In fact, because most nonprofits were religious organizations, government tended to im-
pose less regulation and oversight than on business corporations. OLECK & STEWART,
supra note 10, at 17, 25-29. These exemptions, other than the tax-related ones, have signifi-
cantly diminished in recent years, even as government scrutiny has increased, Id. at 21-23.
Hansmann, Evolving Law, supra note 19, at 824-26 (describing the trend toward reduction
in exemptions from regulation of nonprofit corporations).
31 OLECK & STEWART, supra note 10, at 23. While "trustee" is the term used for the
manager of a private express trust and "director" is the term used for the manager of a
business corporation, there is no consensus on the appropriate term to be used for the
manager of a nonprofit or charitable organization. To add to the linguistic confusion, the
chief executive officer of a museum is often given the title of director. This article will
generally use "trustee" or occasionally "director" to refer to the individuals charged as
fiduciaries with the responsibility for holding the museum's corporate assets and for fulfil-
ling the fiduciary obligations imposed by law.
32 The Brooklyn Inst. of Arts and Sci. v. City of New York, 64 F. Supp. 2d 184, 187-90
(E.D.N.Y. 1999). The Field Museum of Natural History and eight other museums are lo-
cated on land owned by and receive funds from the Chicago Park District. BOYD, supra
note 24, at 220.
33 At the federal level, Congress has created as funding entities the National Founda-
tion on the Arts and Humanities, which includes the National Endowment for the Arts, the
National Endowment for the Humanities, the Federal Council on the Arts and Humanities
and the Institute of Museum Studies. 20 U.S.C. § 951 et seq.
points out that while most museums in the United States are con-
sidered private institutions, the extent of direct and indirect gov-
ernment support they receive requires both a level of public service
equivalent to that of public institutions and a similar standard of
accountability and transparency.34
In exchange for these financial benefits and occasional exemp-
tions from other legal rules, various requirements are imposed.
These requirements have two sources: first, the tax code, and sec-
ond, state common law. The tax code requires that section
501(c)(3) organizations serve a public purpose. In the case of mu-
seums, this is an educational and scientific purpose.35 In addition,
the tax code restricts political lobbying and absolutely prohibits the
endorsement of political candidates. 36 Finally, the trustees are pro-
hibited from earning private gain in their capacity as trustees. 37
State statutory law also establishes requirements, but these largely
track the federal tax code requirements. At the state level, the fi-
duciary obligations imposed on trustees of charitable organizations
38
through the common law are of greater significance.
Both the directors of business corporations and the trustees of
nonprofit and charitable organizations are subject to the two basic
fiduciary obligations: the duty of loyalty and the duty of care. 39
The duty of loyalty requires that trustees remain true to the chari-
table organization's purpose-in the case of museums, their public
educational purpose. In particular, trustees must not engage in
conflicts between their self-interest and the interests of the mu-
seum's beneficiary, that is, the public. The duty of care requires
that the trustees be attentive to the management and preservation
34 Weil, supra note 21, at 230.
35 I.R.C. § 501(c)(3).
36 Id.
37 Id. The primary method of enforcement available to the Internal Revenue Service
for violation of these prohibitions has been removal of tax-exempt status. Given the sever-
ity of this sanction, it is rarely used. Intermediate sanctions introduced in 1995 impose
excise taxes when "disqualified persons" engage in "excess benefit transactions." I.R.C.
§ 4958. Such transactions include payment of excess compensation to officers, directors
and key employees. See Cherry, supra note 17, at 564-65.
38 Gordon H. Marsh, Governance of Non-Profit Organizations:An Appropriate Stan-
dard of Conduct for Trustees and Directorsof Museums and Other Cultural Institutions, 85
DICK. L. REV. 607, 609-13 (1980-81); Boyd, supra note 24, at 196.
39 OLECK & STEWART, supra note 10, at 256. Cherry, supra note 17, at 560-62 (describ-
ing the duties of care and loyalty). See also Wing Leasing v. M&B Aviation, Inc., 542
N.E.2d 671, 676 (Ohio App. 1988) (delineating the fiduciary obligations of a director of a
corporation as.encompassing the duty of good faith, duty of loyalty, duty of disclosure and
duty to refrain from self-dealing).
of the museum's physical assets (the building and, in the case of a

museum, its collections) and 40
monetary assets (endowment and
other financial investments).
There is debate in the secondary literature and the sparse case
law as to the exact standard under which the conduct of trustees or
directors of charitable corporations should be evaluated.4 1 Profes-
sor Oleck points out that nonprofit organization law is a mixture of
general corporate law, which governs nonprofit corporations' inter-
nal workings, and trust law, which regulates the fiduciary duties of
nonprofits' officers and directors because there are no sharehold-
ers to hold the directors accountable, as there are in business cor-
porations. 42 The standard used to evaluate the conduct of
charitable trustees in fulfilling the duty of loyalty is generally a
standard of utmost loyalty to the trust, with any form of self-deal-
ing strictly prohibited.4 3 On the other hand, corporate directors
40 Marsh, supra note 38, at 610-11 (pointing out the aspects of the duty of care that are
unique to museum trustees).
41 Id. at 612-15; OLECK & STEWART, supra note 10, at 878.
42 Oleck follows the traditional principle that the directors of a charitable organization
are fiduciaries, subject to the same obligations and standards of conduct as trustees of
private trusts. See Howard L. Oleck, Mixtures of Profit and Nonprofit Corporation Pur-
poses and Operations, 16 N. Ky. L. REV. 225, 246 (1989) (criticizing the 1987 Revised
Model Nonprofit Corporation Act's adoption of the business judgment rule and liberalized
treatment of director conflict-of-interest); OLECK & STEWART, supra note 10, at 17-18.
Hansmann also advocated that the business corporation standard should not apply to non-
profit corporations because of the lack of members with financial interest to police the
conduct of nonprofit corporate directors. For example, Hansmann proposed a flat prohibi-
tion on all self-dealing. Hansmann, Reforming Nonprofit CorporationLaw, supra note 15,
at 567-73. He also proposed holding all nonprofit corporation directors "to the same strict
standards of fiduciary conduct toward their patrons." Id. at 623. See also Thomas H.
Boyd, A Call to Reform the Duties of Directors Under State Not-For-Profit Corporation
Statutes, 72 IowA L. REV. 725, 732-44 (1987) (describing the different standards that may
apply to directors of nonprofit corporations and arguing for adoption of the trustee stan-
dard for public benefit corporations). Others would change this fiduciary status to be the
same as that of business corporation directors. Lisabeth A. Moody, The Who, What and
How of the Revised Model Nonprofit CorporationAct, 16 N. Ky. L. REV. 251, 275-76
(1989) (explaining the RMNCA's clear adoption of the business corporation director stan-
dards for the directors of nonprofit corporations and rejection of the trustee standard);
Marsh, supra note 38, at 615-26 (reviewing cases that address the director standard in the
museum context and advocating adoption of the business corporation standard).
43 See, e.g., In re Heritage Village Church and Missionary Fellowship, Inc., 92 B.R.
1000, 1016 (B.R. D.S.C. 1988) (self-dealing is not conduct taken in good faith and there-
fore constitutes a breach of the directors' duty of loyalty). There is disagreement as to the
standard to be used in judging transactions that are not technically self-dealing but from
which the corporate fiduciary may benefit personally. See Deborah A. DeMott, Self-Deal-
ing Transactions in Nonprofit Corporations,59 BROOK. L. REV. 131, 135-38, 145-46 (1993)
(discussing the different possible approaches to evaluating self-interested transactions of
can engage in self-interested transactions with the corporation so
long as there is disclosure and the interested director can establish
fairness to the corporation."
The appropriate standard for the trustees of charitable corpo-
rations to be used in judging fulfillment of the duty of care is also
subject to question. The conduct of business corporation directors
in fulfilling the duty of care is judged under the "'business judg-
ment rule,' and [courts] will not inquire into the wisdom of actions
taken by the directors in the absence of fraud, bad faith or abuse of
discretion. ' 45 Thus directors of business corporations must act in
good faith and exercise reasonable care and diligence. They are
personally liable for willful neglect of duty, gross negligence or
fraudulent breach of trust.46 The conduct of trustees in fulfilling
the duty of care is generally phrased today in terms of the "prudent
investor rule" by which the trustee is expected to act as would a
prudent person handling his or her own funds. 47 This rule was de-
vised, as its name indicates, primarily in the context of financial
investments and perhaps does not apply easily to the conduct of
trustees or directors in caring for other types of assets, particularly
the unique objects that form the collections of museums. In some
states, the standard for judging the duty of care 48 is defined by stat-
ute, for example:
Officers and directors shall be deemed to stand in a fiduciary
relation to the corporation and its members, and shall discharge
nonprofit board members and rejecting use of the for-profit corporate standard for public
benefit, charitable corporations). One court has held that such transactions are permissible
if they are approved by an independent committee; if not, then the state attorney general
may seek from the courts evaluation of the fairness of the transaction to the charitable
corporation. Oberly v. Kirby, 592 A.2d 445, 467-68 (Del. 1991). However, in cases involv-
ing allegations of unfairness of a transaction to a charitable corporation, "[tihe interested
directors bear the burden of proving the entire fairness of the transaction in all its aspects,
including both the fairness of the price and the fairness of the directors' dealings." Id. at
469. The court also stressed that in the case of a charitable corporation, the interested
transaction would receive special scrutiny "[b]ecause of the special duty of the fiduciaries
of a charitable corporation to protect and advance its charitable purpose." Id. at 469, note
20. See also Dotlich v. Dotlich, 475 N.E.2d 331, 342 (Ind.Ct. App. 1985) (holding that the
burden to disprove fraud and to prove honesty and good faith falls on the party with the
fiduciary obligation, once it is shown that the party tried to benefit from a questioned
transaction).
44 White, supra note 11, at 1052.
45 Id.
46 See, e.g., Louisiana World Exposition v. Federal Ins. Co., 864 F.2d 1147, 1150 (5th
Cir. 1989).
47 White, supra note 11, at 1052-54.
48 See supra notes 39-40 & accompanying text.
the duties of their respective positions in good faith, and with

that diligence, care, judgment and skill which ordinarily prudent
men would exercise under similar circumstances in like
positions.4 9
The language used in such statutes is, however, confusing. The
statement that the officers and directors are fiduciaries implies the
use of the private trust standard for judging their conduct in dis-
charging their duty. Reference to a standard based on good faith,
however, indicates use of a business corporation standard."
To some extent, the distinction between trustees and business
corporation directors has diminished as applied to the duty of care
because the legal rules applicable to the conduct of trustees and
directors in this context have tended to move closer to each other
in recent years. 51 In the leading case on this subject in the non-
profit context, Stern v. Lucy Webb Hayes National TrainingSchool
for Deaconesses and Missionaries, the court recognized that the
conduct of trustees of private trusts is judged under a stricter stan-
dard, allowing for trustee liability even in cases of simple negli-
gence. In that case, however, the court applied the standard of
business corporation directors in evaluating the trustees' discharge
of the duty of care because the trustees of a charitable corporation
had acted in ways that were indistinguishable from their business
corporation counterparts.5 2 Nonetheless, the court found that the
directors had breached their duty of care.53 On the other hand,
some commentators have argued that since museum managers per-
49 LA. REV. STAT. ANN. § 12:226(A) (2002).

50 See Boyd, supra note 42, at 738-39.
51 See, e.g., Radol v. Thomas, 772 F.2d 244, 256 (6th Cir. 1985) (stating that "the long
established principle is that directors of a corporation have an obligation to the corpora-
tion which is in the nature of that of a fiduciary"); LouisianaWorld Exposition, 864 F.2d at
1149 (stating that the standards for judging the duty of care are virtually the same in busi-
ness corporations and nonprofit corporations).
52 Stern, 381 F. Supp. 1003, 1013 (D.D.C. 1974). See also Louisiana World Exposition,
864 F.2d at 1152 (discussing cases from other jurisdictions that apply the same standard to
the duty of care for directors of both business and nonprofit corporations). Commentators
have criticized this trend of judging the directors of business corporations and nonprofit
corporations under the same standard. See, e.g., Boyd, supra note 42, at 744-45 (advocat-
ing use of the private trust standard for those nonprofit corporations, such as public benefit
and charitable corporations, that do not have an active membership that can police the
conduct of the trustees).
53 The directors breached their duty of care by failing to object when no meeting of the
board was held for more than ten years, failing to acquire adequate knowledge to vote
intelligently on the disposition of corporate funds, and failing to "exercise even the most
cursory supervision of Hospital funds." Stern, 381 F. Supp. at 1014-16.
form the same function, regardless of whether the museum is for-

mally organized as a charitable trust or as a nonprofit corporation,
they should be held to the trust fiduciary standard.54
Problems in the acquisition and deaccessioning5 5 of objects in
a museum's collection may implicate both the fiduciary's duty of
loyalty and duty of care. While public attention has focused to
some extent over the past two decades on museums' deaccession-
ing policies in light of the trustees' obligations, 56 somewhat less at-
tention has focused on museums' acquisitions policies in this
context. This article will suggest that the evaluation of the fiduci-
ary's conduct particularly under the duty of care in the context of
certain types of deaccessions is, in fact, inextricably linked to the
fiduciary's conduct in formulating and following acquisitions poli-
cies. If the museum's acquisitions policies, or the way in which
they are carried out by professional staff, are such that they lead to
certain types of deaccessioning, then it is suggested that such poli-
cies and their effectuation do, in fact, constitute a breach of the
museum fiduciaries' duty of care.
B. Deaccessioningand the Fiduciary Duties of Loyalty and Care

The ability of a museum to deaccession an object may depend,
to some extent, on the circumstances under which the object was
originally acquired-was the object itself a gift, was it purchased
with donated funds or was it purchased from unrestricted general
funds of the museum? The answer to this question may determine
whether the gift is restricted in such a way that would prevent its
removal from the museum's collection. The donor of a charitable
gift may place restrictions on the gift, including a restriction that
prevents alienation of the tangible property.57 In that case, the
54 White, supra note 11, at 1054-56; Boyd, supra note 42, at 744-45.
55 The relatively recently coined term "deaccessioning" refers to the process by which
an object is removed from the collection of a museum. See David R. Gabor, Deaccession-
ing Fine Art Works: A Proposalfor Heightened Scrutiny, 36 UCLA L. REV. 1005, 1005
(1989) (defining deaccessioning as "the removal of objects from an existing art collection
by sale or transfer. It may be a cash sale, direct exchange in kind . . . or a trade for
dissimilar objects .... ").
56 The legal literature on the subject of deaccessioning includes: Gabor, supra note 55;
White, supra note 11; Jason R. Goldstein, Deaccession: Not Such a Dirtyword, 15 CAR-
DOZO ARTS & ENTr. L.J. 213 (1997).
57 However, the donor who wishes to do this must be careful to draft the restriction in a
legally enforceable manner by creating in the donee a fee simple subject to a future inter-
est, such as a possibility of reverter or an executory interest. If the restriction is properly
created, then the donee would forfeit the property upon violation of the restriction. The
prospect of forfeiture generally serves as a sufficient disincentive so

that the museum does not attempt to alienate the work of art.
Often, however, donors may express wishes as to the disposition of
particular property in forms that are not legally enforceable.58 In
such a case, the museum is free from a legal point of view to dis-
pose of the object as it sees fit, even though such actions may sub-
mit the museum to public criticism or increased scrutiny from
government regulators or even from potential donors.5 9
If a museum wishes to be free of a particular restriction on the
disposition of an object in its collection, then it may seek a court
order of cy pres. Cy pres is an equitable doctrine that applies if the
terms of a charitable gift are found to have become impractical,
illegal or impossible to carry out and if the court determines that
property would then either revert to the donor or the donor's estate or pass to a third party
so long as the third party is another charitable institution, thereby making the gift-over
exempt from the Rule Against Perpetuities. It is often not in the interest of a museum to
accept a gift with such forfeiture provisions.
58 See Bd. of Trs. of the Am. Indian, Heye Found. v. Bd. of Trs. of the Huntington Free
Library and Reading Room, 610 N.Y.S.2d 488, 493 (N.Y. App. Div. 1994) (stating that a
court will generally not imply a reversion to the grantor in a charitable gift). A well-known
example of an unenforceable wish of a donor involved the 1967 bequest of Adelaide
Milton de Groot to the Metropolitan Museum of Art of her collection of paintings. Soon
after receiving these paintings, the Metropolitan sold off 32 of the Impressionist works in
order to raise funds to cover its earlier purchase of a Velazquez painting, Juan de Pareja.
The donor had expressed the wish in her will that whatever paintings the Metropolitan did
not want should be given to other specified museums. The donor did not, however, express
her wish in a way that would be legally enforceable and so the Metropolitan was free to
dispose of the paintings as it did. KARL E. MEYER, THE ART MUSEUM: POWER, MONEY,
ETmics 118 (1979). For the perspective of the Metropolitan Museum's director, Thomas
Hoving, responsible for the de Groot deaccessioning, see HOVING, supra note 2, at 291-
306.
59 In deciding that museum trustees could sell whatever they wished from the mu-
seum's collection, one court stated "[a]n art museum, if it is to serve the cultural and edu-
cational needs of the community, cannot remain static. It must keep abreast of the
advances of the times, like every other institution whose purpose is to educate and en-
lighten the community." Wilstach Estate, 1 Pa. D. & C.2d 197, 207 (1954) (holding that in
the absence of any express statement of the donor concerning the ability to deaccession
works from the collection, museum trustees could deaccession works without seeking court
approval). In addition to express restrictions that have been placed on the disposition of
an object by the donor, other restrictions may apply. I have suggested elsewhere that, de-
pending on the method of acquisition, museums may be required to keep certain objects in
the public domain, which would limit their sale, upon deaccessioning, to other public insti-
tutions or may limit their sale within a particular geographic region. Patty Gerstenblith,
The FiduciaryDuties of Museum Trustees, 8 COLUM.-VLA J.L. & ARTS 175, 192-93 (1983).
It has also been suggested that in evaluating whether a particular sale is proper, a court
should consider whether the object will remain in the public domain and in proximity to
the public that originally benefited from the object's display. White, supra note 13, at 1063-
65.
the donor had a general charitable intent. The doctrine allows the
court to change the terms of the gift while remaining as close as
possible to the donor's original charitable purpose. 60 Courts gener-
ally seem to grant requests to sell objects relatively freely, whether
pursuant to a specific cy pres analysis or not.6 ' Another legal doc-
trine that allows departure from the precise terms of a charitable
gift is that of administrative deviation.6 2
There are several reasons why a museum may seek to deacces-
sion an object in its collection. 63 Among these reasons are a desire
to improve the quality of a collection by acquiring a better example
of a particular artist or time period; elimination of a piece that does
not fit into the current collection; elimination of pieces that are
thought to be redundant with others in the collection; changing no-
tions of taste, and the desire to obtain funds to meet general oper-
ating expenses or for particular capital improvements to the
60 Wendy A. Lee, Charitable Foundations and the Argument for Efficiency: Balancing
Donor Intent with PracticableSolutions Through Expanded Use of Cy Pres, 34 SUFFOLK U.
L. REV. 173, 181-85 (2000).
61 See, e.g., In re Gary's Estate, 288 N.Y.S. 382, 383-84 (N.Y. Sup. Ct. 1936) (holding
that restriction on sale of gift had become impossible or impractical and applying cy pres to
permit museum to sell bulk of donated objects rather than causing gift to fail and objects to
revert to donor's estate). But see Bd. of Trs. of the Am. Indian, 610 N.Y.S.2d at 495 (refus-
ing to grant cy pres when original terms of trust had not become impossible or impractical
to carry out, although it was arguable that the trust could be fulfilled in better manner);
Museum of Fine Arts v. Beland, 735 N.E.2d 1248, 1252 (Mass. 2000) (holding that doctrine
of cy pres did not apply and preventing the sale of paintings by the White Fund). Perhaps
the best known example of a donor's extensive restrictions on the operation of a museum
is the Barnes Foundation, established by Dr. Albert C. Barnes and containing one of the
world's best and most extensive collections of Impressionist art. Among other restrictions,
Dr. Barnes forbade even the rearrangement of any of the works of art within the museum
which he had placed according to his own views of artistic theory and aesthetics. However,
by the 1990's the Foundation was suffering from severe financial pressure. The trustees
sought and obtained court permission to allow the loan of several paintings to European
museums and the sale of postcards, posters and other paraphernalia related to the collec-
tion. With the funds realized, the Foundation, although still at times struggling financially,
has been able to maintain the collection. The trustees had also originally sought permis-
sion to sell some of the collection but dropped this request before the court ruled on it. In
re Barnes Found., 684 A.2d 123, 130-31 (Pa. Super. Ct. 1996).
62 In Cleveland Museum of Art v. O'Neill, 129 N.E.2d 669, 671-72 (Ohio Com. P.
1955), the court applied deviation rather than cy pres to allow trust funds designated for
the purchase of art works to be used instead to fund expansion and improvement of the
museum's facilities. The court permitted this despite a provision for failure of the gift if the
funds were not used for the specified purpose. See Lee, supra note 60, at 185-86, for the
distinction between cy pres and deviation.
63 Gabor, supra note 55, at 1014-20.
museum's physical facility.6 4 One of the strengths of American mu-

seums is, in fact, their ability, absent some express restriction
placed on a gift by a donor, to remove particular objects from the
collection.6 5 When this is done in order to improve the quality of
the collection, such activities have generally received little public
attention or legal scrutiny.
Most of the somewhat limited case law that addresses the fidu-
ciaries' duties of care and loyalty in the context of deaccessioning
has been concerned with one of two possible paradigms. The first
of these paradigms is the situation in which the museum wishes to
sell off objects in its collection in order to raise funds not for new
purchases, but rather to meet other financial obligations, most typi-
cally a deficit in the museum's operating budget 66 or sometimes to
make significant capital improvements.67 This purpose of raising
operating funds is sometimes considered a controversial reason for
deaccessioning. However, commentators have argued that this
adds much needed flexibility to museum finances and that it should
be legally permissible.6 8
The second paradigm arises in the less typical scenario in
which the sale itself involves a breach of trust, most likely because
the sale has been to a museum trustee and is therefore considered
self-dealing in violation of the fiduciary's duty to avoid a conflict of
interest. 69 Another example of a sale in breach of trust is one in
64 See White, supra note 11, at 1046 n. 23 (collecting court decisions regarding a mu-
seum's ability to sell works from its collection).
65 Such removal can take place either by sale to a public or private collector, exchange
with another museum or public institution, or occasionally through destruction of the ob-
ject. The ability of American museums to remove objects from their collections contrasts
with restrictions placed on museums in other countries, particularly in Europe, that may by
law prevent such deaccessioning. See MEYER, supra note 58, at 216.
66 The New York Historical Society, which was nearly forced to close, first put up $3
million worth of art as collateral for a $1.5 million loan from Sotheby's. Later it sold $16
million worth of Old Master paintings. David W. Dunlap, Historical Society Shuts Its
Doors but Still Hopes, N.Y. TIMES, Feb. 20, 1993 at 9; Bob Morris, The Dress-Black Tie
and Goggles, N.Y. TIMES, Oct. 15, 1995 at 43.
67 See Cleveland Museum of Art, 129 N.E.2d at 670.
68 See, e.g., White, supra note 11, at 1065-66 (arguing that museums should be permit-
ted to deaccession to raise operating funds so long as the trustees are held to the trust
standard of conduct); Goldstein, supra note 56, at 246 (arguing for greater acceptance of
deaccessioning so long as it is subject to public disclosure and judicial review through the
cy pres doctrine). For examples of the negative publicity that some deaccessioning has
attracted, see id. at 224-27.
69 Practices of the Museum of the American Indian, founded by George Gustav Heye,
included indiscriminate deaccessioning of objects, including sales to trustees. See MEYER,
supra note 58, at 213-15.
which the sale price is clearly below market value or when the trus-
tee had the duty to retain the work.7"
In addition to direct legal constraints, professional codes of
ethics also play a role in evaluating the conduct of museum fiducia-
ries and professional staff in evaluating deaccessioning decisions.
Both the American Association of Museums (AAM) and the As-
sociation of Art Museum Directors (AAMD), two of the largest
museum associations in the United States, have codes that estab-
lish policies for deaccessioning of objects in their collections.
These policies take a restrictive view of those reasons for deacces-
sioning that are considered legitimate. The AAMD's Code states
that "[b]ecause development of the collection was the initial intent
of the donor of an object or the funds for acquisition, the monies
(principal and interest) received from the sale of any accessioned
work of art must be used only to acquire other works of art."71 The
AAM's Code of Ethics only provides that "[p]roceeds from the
sale of nonliving collections are to be used consistent with the es-
tablished' standards of the museum's discipline, but in no event
shall they be used for anything other than acquisition or direct care
of collections. ' 72 Because some museums do not have such poli-
cies and some that claim to have policies do not make them public,
the extent to which these association codes are incorporated into
the policies of individual museums is an entirely different question.
In response to several controversial deaccessions from the Metro-
politan Museum's collection in the 1970's, the museum and the
then-State Attorney General entered into a voluntary agreement
which called for consultation with the attorney general and the do-
nor's heirs before objects are deaccessioned and publicly sold at
auction.73
This article will not address the broad issues raised by the
deaccessioning of objects in museum collections. Rather, it will fo-
cus exclusively on deaccessioning that occurs in the restitutionary
70 In People ex rel. Scott v. Silverstein, 408 N.E.2d 243, 245 (Ill. App. Ct. 1980), the
Illinois state attorney general charged that the trustees of the George F. Harding Museum
had secretly sold a painting from the collection and sold other objects in order to cover
budget deficits caused by excessive salaries paid to themselves. In re Estate of Rothko set
the standard for sales in breach of trust when the fiduciaries had an obligation to retain the
art works, although that case involved estate executors and foundation trustees, rather
than museum trustees. 372 N.E.2d 291, 319 (N.Y. 1977).
71 AAMD statement available at: http://www.aamd.org/deaccess.shtml.
72 AAM Code of Ethics available at: http://www.aam-us.org/aamcoe.htm.
73 Goldstein, supra note 56, at 222.
20031 FIDUCIARY OBLIGATIONS OF MUSEUMS 425
context and will evaluate the duty of care and the trustees' stan-
dard of conduct in making decisions to return cultural objects and
works of art in museum collections. This will lead, in turn, to con-
sideration of the reasons why restitutionary deaccessioning has be-
come necessary and, ultimately, to the question of the duty of care
and the educational function of museums in the process of acquir-
ing museum collections.
II. PARADIGMS OF RESTITUTIONARY DEACCESSIONS

FROM MUSEUM COLLECTIONS
Different paradigms of restitution from museum collections

over the past decade may be illustrated from specific cases. Such
restitutionary deaccessioning may occur in a variety of contexts
and for different reasons. Some restitutions may appear to be in-
voluntary when carried out pursuant to law. Others may appear to
have a more voluntary character, and yet these may often be invol-
untary in the sense that they are done as a means to settle a lawsuit
without extensive litigation. These various types of restitution may
therefore be viewed as falling along a continuum of varying de-
grees of "voluntariness." A variety of factors within these different
paradigms will be considered in analyzing the question of whether
such restitutions constitute a breach of the fiduciary's duty of care.
A. Restitution pursuant to Statutory Enactment: The Native
American Graves Protection and RepatriationAct
Restitutions pursuant to statute may most easily be illustrated
by restitutions from museum collections of Native American
human remains, associated and unassociated burial objects, objects
of cultural property, and sacred objects as a result of the enactment
of the Native American Graves Protection and Repatriation Act
(NAGPRA) in 1990.71 The most significant legal provisions of
NAGPRA are twofold.
The first concerns the restitution of cultural materials discov-
ered on federally-owned or managed land and tribal lands after the
effective date of NAGPRA. 75 Many states have passed compara-
74 Native American Graves Protection and Repatriation Act, Pub. L. No. 101-601, 104
Stat. 3048 (1990)(codified at 25 U.S.C. §§ 3001-3013 (2002)).
75 The provisions concerning restitution of newly-discovered human remains and cul-
tural materials require consultation with the appropriate Native American tribes before
human remains can be removed, id. § 3002(c); obtaining permission from the appropriate
tribe if the excavation is to occur on tribal lands, id.; the reporting of accidentally discov-
ble statutes that apply to excavations and newly discovered objects

on state-owned land.76 While this provision of NAGPRA was at
first thought to be less controversial than those provisions that ap-
ply to existing museum collections, it has for the last few years
been the subject of extensive research and litigation, as in the case
of the "Kennewick skeleton. '77 While not having a direct effect on
museum collections, this provision does have an indirect effect in
ered remains to the federal agency that manages the lands and to the appropriate tribe, id.
§ 3002(d); cessation of activities that led to the accidental discovery and reasonable efforts
to protect the remains before the activity may resume, id. Human remains and associated
funerary objects discovered on federal or tribal lands after November 16, 1990, belong to
lineal descendants of the deceased, or where those descendants are unknown, to the tribe
upon whose lands the objects were discovered or with the tribe that "has the closest cul-
tural affiliation with such remains." Id. § 3002(a). In the case of newly discovered non-
funerary cultural objects, NAGPRA establishes a priority list of those entitled to owner-
ship or control. Id.
76 About half of the states have statutes that protect Native American burials found on
private, as well as public, land. An additional ten states have statutes with provisions com-
parable, although not identical, to those of NAGPRA and that apply only to burials found
on public state-owned or -controlled land. Patty Gerstenblith, Protection of Cultural Heri-
tage Found on Private Land: The Paradigm of the Miami Circle and Regulatory Takings
Doctrine after Lucas, 13 ST. THOMAS L. Rev. 65, 102 nn. 148-49 (2000). See generally
Carol L. Carnett, A Survey of State Statutes Protecting Archeological Resources, PRESER-
VATION LAW REPORTER: SPECIAL REPORT, 3 ARCHEOLOGICAL ASSISTANCE STUDY (Na-
tional Trust for Historic Preservation; U.S. Department of the Interior, National Park
Service, Cultural Resources, Archeological Assistance Division 1995).
77 This case involves an approximately 9000-year-old skeleton discovered along the
banks of the Columbia River in the summer of 1996. While the Army Corps of Engineers,
the agency with management responsibility for the land where the skeleton was found,
announced its intention to turn the remains over to several local tribes, several biological
anthropologists sued to prevent this restitution on the grounds that they were being denied
their first amendment right to study the skeleton through improper or over-enforcement of
NAGPRA. The federal magistrate then asked the government to make several determina-
tions, including whether the Kennewick skeleton was, in fact, Native American within the
meaning of NAGPRA and whether cultural affiliation of the skeleton and an extant tribe
could be determined, so as to meet the requirements for restitution under the statute.
Bonnichsen v. United States, Dep't of Army, 969 F. Supp. 614, 969 F. Supp. 628 (D. Or.
1997). In September 2000, the Department of the Interior announced its determinations
both that the skeleton is Native American and that it is culturally affiliated with the Uma-
tilla group of tribes that had claimed the skeleton. See Letter from Secretary of the Inte-
rior Bruce Babbitt to Secretary of the Army Louis Caldera Regarding Disposition of the
Kennewick Human Remains (September 21, 2000) with enclosures, available at: www.cr.
nps.gov/aad/kennewick/index.htm. The magistrate subsequently held that the evidence
does not support the Department of the Interior's determination that the skeleton is "Na-
tive American" for purposes of NAGPRA and ordered the government to allow the plain-
tiff-scientists to study the remains. 217 F. Supp. 2d 1116, 1135-39 (D. Or. 2002).
that it will reduce significantly the number of newly-discovered cul-

tural objects that may enter museum collections.78
The second significant, and considerably more controversial,
aspect of NAGPRA applies to human remains and objects that
were already a part of museum collections at the time that
NAGPRA was enacted. At the time of NAGPRA's passage, there
was concern that the repatriation requirements would result in the
emptying of museum collections. 79 NAGPRA requires all muse-
ums that receive federal funding and federal agencies to prepare
inventories of their human remains and associated grave artifacts.80
These inventories were required to identify the cultural and geo-
graphical affiliations of these remains to the extent possible, and
notices were required to be sent to those Native Americans reason-
82
81
ably believed to be culturally affiliated with inventory items.
NAGPRA also requires the preparation and publication of less de-
78 This notion, while probably widely accepted, is somewhat misleading. One aspect
that has been largely ignored in the commentary on NAGPRA is the growth of research
conducted by Native Americans and museums owned and operated by Native American
tribes. While some tribes believe in immediate reburial of human remains and funerary
objects and some would not display cultural or sacred objects, other tribes take different
perspectives. The increasing number of Native American museums has created new op-
portunities for the display and study of at least certain types of Native American cultural
objects. See Karen Coody Cooper, Museums and American Indians: Ambivalent Partners,
in AMERICAN INDIAN STUDIES: AN INTERDISCIPLINARY APPROACH TO CONTEMPORARY
ISSUES 403 (Peter Lang Publ., Inc., New York 1997). Much of the literature focuses on the
losses to the major established museums rather than on what may simply be a shift to a
different type of museum.
79 Toner, Coveting Thy Neighbor's Past, supra note 8.
80 25 U.S.C. § 3003(a). The Act defines "museum" as an institution that receives fed-
eral funds, including universities. Id. § 3001(8). "Associated funerary objects" include
"objects that, as a part of the death rite or ceremony of a culture, are reasonably believed
to have been placed with the individual human remains either at the time of death or later,
and both the human remains and associated objects are presently in the possession of the
Federal agency or museum..." The category also includes objects containing human re-
mains. Id. at § 3001(3)(A).
81 Cultural affiliation serves as a means to determine whether the claimant has a rea-
sonable connection to the requested materials. H.R. REP. No. 101-877, 101st Cong., 2d
Sess. 17 (1990), reprinted in 1990 U.S.C.C.A.N. 4367, 4373.
82 25 U.S.C. § 3003(a) (setting forth the general notice requirements).
tailed summaries of unassociated funerary objects, 83 sacred ob-

jects,84 and cultural items.85
Native American groups and tribes can obtain restitution
based on the cultural affiliations established in the inventories and
summaries. Human remains and associated grave goods must be
returned expeditiously upon request by a lineal descendant, Indian
tribe, or Native Hawaiian organization.86 If the inventory does not
establish a cultural affiliation, a Native American tribe or Hawai-
ian organization may still obtain restitution by proving by a pre-
ponderance of the evidence that it has a cultural affiliation with the
items.87 If the requested items are unassociated funerary objects,
sacred objects, or cultural objects, and if cultural affiliation can be
established,88 then the requesting group must present a prima facie
83 "Unassociated funerary objects" are those objects reasonably believed to have been
placed with human remains at the time of death or later but that subsequently became
separated; in addition, the particular human remains are not in the possession or control of
the Federal agency or museum but "the objects can be identified by a preponderance of the
evidence as related to specific individuals or families or to known human remains, or by a
preponderance of the evidence, as having been removed from a specific burial site of an
individual culturally affiliated with a particular Indian tribe." Id. § 3001(3)(B).
84 "Sacred objects" are defined as "specific ceremonial objects which are needed by
traditional Native American religious leaders for the practice of traditional Native Ameri-
can religions by their present day adherents." Id. § 3001(3)(c).
85 Cultural patrimony or items are those objects that have an "ongoing traditional, his-
torical, or cultural importance central to the Native American group or culture itself,
rather than property owned by an individual Native American, and which, therefore, can-
not be alienated, appropriated, or conveyed by any individual..." Id. § 3001(3)(D).
86 Id. at § 3005(a)(1). Immediate restitution is not required if multiple parties claim the
same item and the museum "cannot clearly determine which party is the most appropriate
claimant," id. at § 3005(e), or if the item is "indispensable for completion of a specific
scientific study, the outcome of which would be of major benefit to the United States." Id.
at § 3005(b).
87 NAGPRA permits a claimant to establish cultural affiliation based on "geographical,
kinship, biological, archaeological, anthropological, linguistic, folkloric, oral traditional,
historical, or other relevant information or expert opinion." 25 U.S.C. § 3005(a)(4). The
legislative history indicates that proof of cultural affiliation does not need to be established
with scientific certainty and claims will not necessarily be rejected solely because gaps exist
in the record of ownership or control. H.R. REP. No. 101-877, supra note 81, at 17, re-
printed in 1990 U.S.C.C.A.N. at 4373.
88 If the requested item is either a sacred object or a cultural object, then the requesting
Native American group must show that the object was previously owned or controlled by
that group, or by an individual who was a member of that group. 25 U.S.C.
§ 3005(a)(5)(B)-(C). A direct lineal descendant of an individual who owned a sacred ob-
ject may also present such a claim. Id. § 3005(a)(5)(A). Congress' intent in enacting
NAGPRA seems to have been to require museums to make a good-faith effort to identify
the cultural affiliation of a discovered item. See H.R. REP. No. 101-877, supra note 81, at
12, reprinted in 1990 U.S.S.C.A.N. at 4367.
case that the agency or museum does not have the right of posses-
sion to the item.89 Upon presentation of a prima facie case, the
burden of proof shifts to the museum or agency to establish that it
does have the right of possession. 9°
Any attempt to quantify the extent of actual repatriations is
exceedingly difficult. Once the Federal agency or museum has
made an inventory of the human remains and associated funerary
objects in its collection and has made a cultural determination, this
information must be published as a Notice of Inventory Comple-
tion,91 prior to any action by the tribes.92 The publication of such a
notice, however, does not necessarily indicate that the human re-
mains and associated funerary objects have been repatriated;
rather publication of the notice is merely a prerequisite for repatri-
ation. It is therefore not possible to determine from the published
notices the actual quantity of remains and objects that have been
89 25 U.S.C. § 3005(c). Right of possession is defined as "possession obtained with the

voluntary consent of an individual or group that had authority of alienation." Generally,
the object must have been the property of the tribe or group at the time possession was
lost, so that it could not have been owned or transferred by an individual. Right of posses-
sion is not an issue in the case of human remains and associated funerary objects because
they are not considered capable of being "owned" or transferred, except for the limited
purpose of assuring appropriate burial.
90 Id. This shift in the burden of proving title from the claimant to the current posses-
sor has been criticized as a change in traditional property law and as imposing a considera-
ble burden on museums and agencies that may, in fact, have good title.
91 Between June 18, 1992, and June 18, 2002, 626 Notices of Inventory Completion
[NIC] have been published. Because some institutions do not give specific numbers of how
many humans are represented by a set of remains, it can only be estimated that these NICs
represent 10,200 sets of human remains. In addition, the NICs represent 180,000 associ-
ated funerary objects. Again, the notices are not uniform. Some institutions specifically
enumerate what types and how many objects are in their possession; others are not so
specific. About 90,000, or half, of the associated funerary objects are enumerated. From
an examination of these enumerated objects, it would seem that the NICs represent no
fewer than: 560 animal remains; 82,000 individual beads; 110 strands of beads; 20 bells; 10
bottles; 2 bows and arrows; 50 bowls; 40 bracelets; 20 brooches; 2200 ceramic vessels and
shards of vessels; 2 dolls and figurines; 20 earrings; 40 jars; 100 knives or blades; 230 frag-
ments of leather; 170 metal rings; 350 miscellaneous metal pieces; 50 necklaces; 40 orna-
ments; 30 pendants; 40 pigments; 40 pipes; 700 projectile points; 20 rattles; 2 pairs of
scissors; 330 shells; 20 spoons; 820 stone fragments; 500 textile fragments; 550 tools; 40
pieces of worked wood; 4 bundles; 4 sticks and wands, as well as hundreds of miscellaneous
objects. This list is based on a counting of half of the NICs, the first quarter and the last
quarter to be published (chronologically). The results of this tally were doubled to reach
these conclusions. The NICs are available at http://www.cast.uark.edu/other/nps/nagpra/
nic.html.
92 25 U.S.C. § 3003.
repatriated.93 Once a summary of unassociated funerary objects,

sacred objects and objects of cultural patrimony is completed and
their cultural affiliations determined, this information is published
as a Notice of Intent to Repatriate, 94 if the Federal agency or mu-
seum accepts a claim by a tribe for the items.95
It may be assumed that a considerable number of human re-
mains have been returned to tribes based either on lineal descent
or cultural affiliation. One of the more spectacular repatriations of
cultural and sacred objects occurred in the summer of 2001, when
totem poles, carved house posts and a facade from a Tlingit clan
house were returned from five different institutions throughout the
United States to the Tlingit tribe of Alaska. 96 Nonetheless, the
numbers of objects repatriated are, in all likelihood, relatively
small.97
93 Only the parties involved or information obtained outside of the NAGPRA process,
such as newspaper articles, would give an indication of the actual extent of repatriations
that have occurred. It has so far not been considered feasible to conduct such a study.
Jason C. Roberts, A Native American Graves Protectionand Repatriation Act Census: Ex-
amining the Status and Trends of Culturally Affiliating Native American Human Remains
and Associated Funerary Objects between 1990 and 1999, in Topics IN CULTURAL RE-
SOURCE LAW 79, 89 n. 6 (Donald F. Craib ed., 2000).
94 Between March 15, 1993, and June 18, 2002, 221 Notices of Intent to Repatriate
[NIR] have been published, representing a total of approximately 70,510 objects. These
may be categorized as including 68,650 unassociated funerary objects; 300 objects of cul-
tural patrimony, 760 sacred objects, and 800 objects that met the definitions of both objects
of cultural patrimony and sacred objects. As with the NICs, the notices are not uniform,
with some institutions specifically enumerating exactly what types and how many objects
are in their possession and with other institutions not providing as specific information.
About 27,800 of the objects are enumerated. A projection based on these enumerations
indicates that the NIRs represent no fewer than: 3 altars; 40 animal remains; 30 balls or
game pieces; 19.,300 individual beads; 40 strands of beads; 10 bells; 3 bottles; 50 bows and
arrows; 10 bowls; 30 bracelets; 20 brooches; 21,500 ceramic vessels and shards of vessels; 80
dance items; 50 dolls and figurines; 10 drums and drumsticks; 3 earrings; 2 flags; 50 head-
dresses; 6 jars; 10 knives or blades; 30 fragments of leather; 270 masks; 7 metal rings; 20
miscellaneous metal pieces; 4 necklaces; 30 ornaments; 20 pendants; 7 pigments; 80 pipes;
70 projectile points; 30 rattles; 2 pairs of scissors; 30 shells; 4 shields; 20 spears; 10 spoons;
20 staffs; 50 stone fragments; 250 textile fragments; 1 tomahawk; 100 tools; 3 totem poles;
100 pieces of worked wood; 160 bundles; 100 sticks and wands; 5 canoes, as well as hun-
dreds of miscellaneous objects. As with the NICs, the largest bulk of the objects are indi-
vidual beads, followed by ceramic vessels and fragments. All of the NIRs were counted.
The results of the tally were rounded to the nearest ten. The NIRs are available at http://
www.cast.uark.edu/other/nps/nagpra/nir.html.
95 25 U.S.C. § 3004.
96 William Mullen, Return of relics helping Tlingit close the circle, CH. TRIB., July 25,
2001, at 9.
97 Although it is difficult to determine the number of objects that have been repatriated
throughout the country, the example of the Smithsonian's Museum of Natural History is
The question then is whether the deaccessioning that has been

carried out pursuant to NAGPRA may constitute a breach of the
museum trustees' fiduciary obligations. These repatriations are
done in compliance with federal law. Certainly federal agencies
are directly subject to the requirements of federal law. However,
for museum trustees, such restitutions may pose an apparent con-
flict between the dictates of federal law and the requirements of
fiduciary obligations that are typically a product of state law.
NAGPRA itself provides specifically for a preemption of state fi-
duciary law by stating that any good faith restitution made by a
museum pursuant to NAGPRA will not create liability under state
law.98 Based on this provision, the straightforward resolution to
this apparent conflict would be to conclude that federal law
preempts state law and so a museum that makes restitution pursu-
ant to NAGPRA should be protected from the requirements of
state fiduciary law.
However, the situation is perhaps a bit more complicated than
this analysis would indicate. First, NAGPRA does not directly re-
quire museums to engage in restitution. Presumably because of
concerns with the constitutional basis for this federal enactment as
applied to museums and universities, NAGPRA does not directly
require these repatriations of all museums. Rather, it requires
these actions (preparation of the inventories and summaries) and
subsequent repatriations of those museums and universities that
receive federal funds. 99 Therefore, the museum presumably has a
choice as to whether to engage in the NAGPRA repatriation pro-
cess or whether to refuse and thereby also decline federal mone-
instructive. Although 250,000 artifacts have been inventoried for possible return to tribes,
only one object has been removed from public display. Other objects that have been re-
turned were in museum storage or the museum's research collection. Toner, Coveting Thy
Neighbor's Past, supra note 8.
98 NAGPRA states: "Any museum which repatriates any item in good faith pursuant to
this Act shall not be liable for claims by an aggrieved party or for claims of breach of
fiduciary duty, public trust, or violations of state law that are inconsistent with the provi-
sions of this Act." 25 U.S.C. § 3005(f).
99 The NAGPRA inventory and summary procedures, 25 U.S.C. §§ 3003(a) and 3004
(a), and repatriation requirements, 25 U.S.C. § 3005(a), apply to Federal agencies and
museums, which are defined as "any institution or State or local government agency (in-
cluding any institution of higher learning) that receives Federal funds and has possession
of, or control over, Native American cultural items." This section also specifically excludes
the Smithsonian Institute from this definition. 25 U.S.C. § 3001(8).
tary support. 1°° It is therefore necessary to consider whether

museum trustees and directors are complying with their fiduciary
duty of care when deciding to engage in the NAGPRA repatriation
process, rather than simply concluding that NAGPRA is a direct
preemption of the state common law fiduciary obligations imposed
on museum trustees and directors.
Perhaps the most straightforward way to analyze this is to re-
alize that the museum fiduciary is faced with calculating whether it
is better for the museum to engage in the repatriation process and
receive federal funds or to opt out of the repatriation process and
forego the benefits of federal funding and potentially be subject to
fines and litigation. It would seem that the museum fiduciaries
have, for the most part at least, made the determination that the
former is the better course for fulfilling their duty of care. This
determination is one that is likely to pass judicial scrutiny, as it is
reasonable under any standard to conclude that this choice is one
that benefits the museum. Furthermore, the NAGPRA repatria-
tion process proceeds as the result of consultation, discussion and
recommendations provided by the NAGPRA Review Commit-
tee, 10 1 and there has been only one case of litigation involving the
100 NAGPRA's drafters seem to have assumed that the requirement to engage in the
repatriation process in exchange for the receipt of federal funds would not violate the
"unconstitutional conditions" doctrine. See Isaac Moriwake, Critical Excavations: Law,
Narrative, and the Debate on Native American and Hawaiian"Cultural Property" Repatria-
tion, 20 HAWAII L. REV. 261, 284-85, n.158 (1998). NAGPRA does not, however, specifi-
cally provide for the loss of federal funds if a museum chooses not to engage in the
repatriation process. Rather, NAGPRA provides for the imposition of civil penalties, 25
U.S.C. §3007 (a), determined by several factors, including: "(1) the archaeological, histori-
cal, or commercial value of the item involved; (2) the damages suffered, both economic
and non-economic, by an aggrieved party, and (3) the number of violations that have
occurred." 25 U.S.C. §3007(b). The same economic calculation would confront museum
trustees, whether faced with the loss of federal funds or the payment of penalties.
101 As of 1999, the Review Committee itself had considered only five disputes, of which
two involved human remains. Of the three other disputes, one involving the City of Provi-
dence and a Native Hawaiian organization resulted in preliminary litigation and was ulti-
mately settled after the court ordered mediation. Providence v. Babbitt, CA 96-668
(D.R.I. Nov. 21, 1996). Of the remaining two cases, one involved a dispute between rival
claimants, the Oneida Tribe of Wisconsin and the Oneida Nation of New York, both of
whom claimed a wampum belt in Chicago's Field Museum of Natural History. The other
case involved a question as to the owner of a Kiowa shield held by the Hearst Museum,
which ended with the claimant's withdrawal of her claim. See James A.R. Nafziger and
Rebecca J. Dobkins, The Native American Graves Protection and RepatriationAct in Its
First Decade, 8 INT'L J. CULTURAL PROP. 77, 94-96 (1999); Morris A. Fred, Law and Iden-
tity: NegotiatingMeaning in the Native American Graves Protectionand RepatriationAct, 6
INT'L J. CULTURAL PROP. 199, 205-10 (1997) (discussing several case histories of mediated
resolutions and the work of the NAGPRA Review Committee).
disposition of an object, which was itself ultimately settled through

mediation. 10 2 Whether NAGPRA is viewed as providing an incen-
tive or coercion, virtually all issues have so far been resolved with-
out need of judicial intervention.
It should also be noted that several states have enacted
NAGPRA-type statutes that also require repatriation of certain
10 3
Native American objects and human remains in their collections.
Unlike the federal government, the state is able to regulate the mu-
seum directly and can impose this obligation directly on the mu-
seum. In this case, the state statutory enactment would be a direct
preemption of state common law fiduciary duties 10 4 and thus the
question of whether a museum fiduciary is breaching that obliga-
tion is more easily answered in the negative than in the case of the
museum's compliance with NAGPRA.
One may go even a step further and suggest that the restitu-
tion of human remains and objects pursuant to NAGPRA and
102 In addition to the Providence case, the only other litigated case involving repatria-
tion concerned the disposition of human remains held by the Marine Corps, Na Iwi 0 Na
Kupuna 0 Mokapu v. Dalton, 894 F. Supp. 1397 (D. Haw. 1995). Other litigation con-
cerning NAGPRA has focused on the illegal trafficking provisions and the provisions for
disposition of newly discovered human remains on federal or tribal land. See, e.g., United
States v. Corrow, 119 F.3d 796 (10th Cir. 1997) (trafficking provisions); Bonnichsen v.
United States, Dep't of Army, 969 F. Supp. 614, 969 F. Supp. 628 (D. Or. 1997); 217 F.
Supp. 2d 1116 (D. Or. 2002) (newly discovered remains provisions).
103 See, e.g., 1990 Ariz. Sess. Laws ch. 326 § 1 (codified at ARIZ. REV. STAT. ANN. § 41-
844) (requiring restitution of Native American materials in the possession of state agencies
before 1990); 1989 Neb. Laws LB 340 §§ 9-11 (codified at NEB. REV. STAT. §§ 12-1209 to
12-1211) (requiring publicly funded or identified entities upon request to return any human
skeletal remains or burial goods "of American Indian origin which are reasonably identifi-
able as to familial or tribal origin" to such relative or Indian tribe or to rebury the remains
within one year of the request); California Native American Graves Protection and Repa-
triation Act, CAL. HEALTH & SAF. CODE, §§ 8010-8030 (2002). The earlier statutes are
discussed in Robert M. Peregoy, The Legal Basis, Legislative History, and Implementation
of Nebraska's Landmark Reburial Legislation, 24 ARIZ. ST. L.J. 329 (1992), and Paul
Bender, 1990 Arizona Repatriation Legislation, 24 ARIZ. ST. L.J. 391, 393 (1992).
104 The newly enacted California statute, which has the stated purpose of encouraging
voluntary restitutions, also provides protection for museum fiduciaries who act under the
statute. The California statute provides:
Liability of agency or museum for good faith repatriation: An agency or mu-
seum that repatriates human remains and cultural items in good faith pursuant
to this chapter is not liable for claims by an aggrieved party or for claims of
breach of a fiduciary duty or the public trust or of violation of state law that are
inconsistent with this chapter. No action shall be brought on behalf of the state
or any other entity or person for damages or for injunctive relief for a claim of
improper disposition of human remains or cultural items if the agency or mu-
seum has complied with the provisions of this chapter.
Cal. Health & Saf. Code § 8018 (2001).
equivalent state statutes has become an affirmative part of the mu-

seum's fiduciary obligations." 5 Additional knowledge concerning
not only artifacts but also Native American history and culture is
gained through the collaboration entailed in the NAGPRA repatri-
ation process. 10 6 This has resulted in the establishment of new mu-
seums within the Native American community 10 7 and, in those
cases where objects have remained in their original museum loca-
tions, those objects can now be presented to the public with greater
sensitivity, knowledge and understanding.1 0 8 This increase in
knowledge is a form of fulfillment of the fundamental educational
and public purposes of museums.
Finally, NAGPRA was carefully drafted so as to avoid the
question of whether the repatriation process constitutes a taking of
property without just compensation in violation of the Fifth
Amendment's Takings Clause. The position of the Justice Depart-
ment at the time of NAGPRA's passage 1 9 and a position with
105 James A.R. Nafziger, The New FiduciaryDuty of United States Museums to Repatri-
ate Cultural Heritage: The Oregon Experience, Spec. Issue 1995 U.B.C.L. REV. 37, 41-42
(1995) (stating that the NAGPRA repatriation regime "has had the effect of enriching and
extending the definition of [museums'] fiduciary duty and the extension of collection infor-
mation to the Native American communities has benefited both the Native Americans and
the public").
106 Many museums had not previously studied their full collection of Native American
remains and objects. The NAGPRA process therefore forced them to undertake these
studies, which thereby furthered the fulfillment of their educational obligation and bene-
fited the general American public, the Native American communities, and the scientists
and academics who conducted these studies. In fact, the NAGPRA process has signifi-
cantly increased the knowledge of museums about their own collections. For example,
Harvard's Peabody Museum of Archaeology found that it had more than twice as many
human remains and 8 million Native American artifacts rather than 800,000 in its collec-
tion. Toner, Coveting Thy Neighbor's Past,supra note 8. For a case study of one university
museum's engagement in this process, see Nafziger & Dobkins, supra note 101, at 83-92;
see also Fred, supra note 101, at 215-17.
107 For examples of such museums, see Cooper, supra note 78.
108 In one example, the Pawnee tribe decided to leave their medicine bundles in the
Field Museum, although the museum recognized the Pawnee tribe's title to the bundles.
The bundles are now cared for in accordance with both standards set by the Pawnee and
the museum's conservation policies. Fred, supra note 101, at 207. For a discussion of the
particular practices adopted by the new Smithsonian National Museum of the American
Indian, see the paper of Craig Howe, Deputy Assistant Director for Cultural Resources at
the Smithsonian National Museum of the American Indian, "Sovereignty and Cultural
Property Policy in Museums" presented at the University of Chicago Cultural Policy Work-
shop (Jan. 13, 2000) available at http://humanities.uchicago.edu/artspublic/workshop.html.
109 Leonard D. DuBoff, ProtectingNative American Cultures, 53 OR. ST. B. BULL. 9, 11-
13 (Nov. 1992).
which scholars have agreed11 ° was that human remains and funer-
ary objects are not subject to private ownership. The nearest kin of
the deceased individual have only a quasi-ownership right for the
limited purpose of ensuring a proper burial. Neither the finder of
human remains nor the landowner where these remains and ob-
jects are interred have any ownership right. Thus, the museums do
not have ownership rights in such remains and therefore NAGPRA
is not denying them any property rights. The NAGPRA provisions
dealing with unassociated burial objects, sacred objects and objects
of cultural patrimony are also carefully drafted so that they apply
only to objects that were owned communally by a Native American
tribe or Native Hawaiian organization."1 Thus, any individual who
conveyed such 112objects outside of the tribe did not actually have the
right to do so.
110 MIKE PARKER PEARSON, THE ARCHAEOLOGY OF DEATH AND BURIAL 191 (1999);
Sarah Harding, Justifying Repatriationof Native American Cultural Property, 72 IND. L.J.
723, 767 (1997) (stating that "[t]here are no conventional property rights in human
remains").
111 This NAGPRA provision turns on the question of whether the museum has the
"right of possession" and this, in turn, requires a detailed factual analysis of the date and
circumstances of original transfer of the object and the laws of the tribal community at the
time. See Moriwake, supra note 100, at 277 n. 128.
112 NAGPRA defines "right of possession" as:
possession obtained with the voluntary consent of an individual or group that

had authority of alienation. The original acquisition of a Native American un-
associated funerary object, sacred object or object of cultural patrimony from
an Indian tribe or Native Hawaiian organization with the voluntary consent of
an individual or group with authority to alienate such object is deemed to give
right of possession of that object, unless the phrase so defined would ...result
in a Fifth Amendment taking by the United States as determined by the United
States Claims Court [United States Court of Federal Claims] pursuant to 28
U.S.C. § 1491 in which event the "right of possession" shall be as provided
under otherwise applicable property law. The original acquisition of Native
American human remains and associated funerary objects which were exca-
vated, exhumed, or otherwise obtained with full knowledge and consent of the
next of kin or the official governing body of the appropriate culturally affiliated
Indian tribe or Native Hawaiian organization is deemed to give right of posses-
sion to those remains.
25 U.S.C. § 3001(13). See also Moriwake, supra note 100, at 282-87 (discussing "the basic
unresolved tension between NAGPRA's repatriation rights and established common law
property rights."). Only one case has tested the question of whether NAGPRA might
cause a taking of property in violation of the Fifth Amendment's Takings Clause. In Provi-
dence v. Babbitt, CA 96-668 (D.R.I. Nov. 21, 1996), the City of Providence claimed that its
failure to comply with a NAGPRA Review Committee recommendation that a Native Ha-
waiian support figure in a city museum be returned to the Native Hawaiian organization
would subject it to civil penalties and therefore alleged, among other claims, that
NAGPRA effected a taking of property. The issues were never determined, however, as
Therefore, the NAGPRA repatriation provisions are premised
on the notion that the museum did not acquire valid title to such
objects and therefore, they also do not raise any Takings Clause
concerns. If a museum does not have valid title to objects in its
collection, then there is no breach of the fiduciary duty of care
when such objects are returned to their rightful owner. While
these NAGPRA provisions have not been tested in the courts, this
interpretation accords with Congress' intent as expressed in the
NAGPRA legislative history. This issue leads to consideration of
the broader question of the evaluation of museum fiduciaries' con-
duct when claims are made by original owners based on lack of
title to objects in the museum's collection.
B. Restitution Pursuant to Law: Failure of Title

A second type of restitution may occur when the museum has
not acquired title to a cultural object or work of art. There are
many circumstances in which a museum may have acquired a sto-
len work of art, including those that are stolen from other muse-
ums and private collections. However, the examples that have
received the most attention in recent years have been the art works
stolen from their owners during the Holocaust and antiquities
looted directly from the ground, title to which is vested in the na-
tion of origin. Each of these types of acquisitions may lead to the
need for the museum to deaccession the work of art in order to
return it to its true owner. These paradigms will be considered in
turn.
1. Art Works Stolen during World War II

Although the actions of the Nazis in looting and forcing sales
of art works during World War II have long been known, the sub-
ject has received considerably more attention in the past decade
following the opening of the Soviet state archives in the early
1990's and the publication of Lynn Nicholas' landmark study, The
Rape of Europa.113 The Holocaust was responsible for the greatest
the case was eventually settled by the city agreeing to donate the figure to the Native
Hawaiian organization and the organization reportedly giving the museum $125,000 as a
settlement. See Nafziger & Dobkins, supra note 101, at 96-97; Moriwake, supra note 100,
at 263-66.
113 LYNN H. NICHOLAS, THE RAPE OF EUROPA: THE FATE OF EUROPE'S TREASURES IN
THE THIRD REICH AND THE SECOND WORLD WAR (1994). See also NORMAN PALMER,
MUSEUMS AND THE HOLOCAUST: LAW, PRINCIPLES AND PRACTICE (2000).
movement, theft and destruction of art works known to history.

The individuals who were part of the U.S. government's team of
specialists, known as the Monuments, Fine Arts and Archives of-
ficers, were charged toward the end of the war with locating, col-
lecting and preserving the massive collections of art works
gathered by Hitler and the other Nazi leaders.11 4 Many of these
officers had distinguished careers as academics, curators and direc-
tors of leading museums in the United States. They were thus sin-
gularly well-informed concerning the actions of the Nazis. Yet,
many museums and private collectors seemed oblivious to the con-
sequences that this widespread theft would ultimately have for the
acquisition of good title to art works that were added to museum
collections over the past 50 years.
As attention to the problem of assets and particularly art
works looted during the Holocaust era has grown over the past
decade, leading museums in the United States have become more
concerned that many of the objects in their collections might be
subject to claims from original owners. During hearings held in
Congress in 1998, when Congress was considering legislation to set
standards for return of such looted art works, 115 the directors of
several leading museums testified that this subject should be left to
museum professionals. 1 6 As a result, first the Association of Art
Museum Directors and later the American Association of Muse-
ums established codes of ethics and procedures for museums to un-
dertake provenance research for their holdings." 7 As a part of this
process, museums have initiated extensive research into the back-
ground of their collections and have created lists of objects with
gaps in their provenance between the years 1933 and 1945 and that
were known to have been on the European continent before or
114 NICHOLAS, supra note 113, at 408-444.

115 See Emily J. Henson, The Last Prisoners of War: Returning World War II Art to its
Rightful Owners-Can Moral Obligations be Translated into Legal Duties?, 51 DEPAUL L.
REV. 1103, 1153-57 (2002) (discussing 1998 Congressional hearings and proposing an
amendment to the Holocaust Victims Redress Act that would shift the burden of proving
title to the current possessor of art works stolen during the Holocaust).
116 Judith Dobrzynski, Capitol Hill Looks At Issue Of Art Stolen In Wartime, N.Y.
TIMES, Feb. 15, 1998, at 17.
117 The impetus for both organizations was provided by the Washington Conference
Principles on Nazi-Confiscated Art, available at http://www.state.gov/www/regions/eur/
981203_heacart-princ.html. The Report of the AAMD Task Force on the Spoliation of
Art during the Nazi/World War II Era (1933-1945) guidelines is available at http://www.
aamd.org/guideln.shtml. The AAM guidelines are available at http://www.aam-us.org/
nazi-guidelines.htm.
during this time period. Several of the museums that have engaged
in this research have now posted these lists on their web sites so
that potential claimants can review this information.118
Despite fears that this process would lead to the emptying of
museum storerooms and display cases, according to Dr. James
Cuno, former Director of the Harvard Art Museums, there have
been relatively few restitutions of art works stolen during the Hol-
ocaust to their original owners.11 9 In a panel presentation held in
February 2002, he stated that of 14 million objects in museum col-
lections in the United States, approximately one thousand have
been shown to have questionable gaps in their provenance. Of
these, original owners have claimed eight art works, and of these,
three remain in museum collections, while five have been returned
to owners or their heirs. 120 Other calculations have revealed a total
of twelve claims brought against museums in the United States.121
118 See, e.g., Elizabeth Neff, Nazi-Era Art Probe Takes to The Internet, CHI. TRIB., April
12, 2000, at 1. A listing of those museums that have posted lists of art works in their
collections with gaps in provenance between the years 1933 and 1945 is availableat http://
www.aam-us.org/nazieraprov.htm.
119 Dr. James Cuno, The InternationalArt Trade and the Ethics of Collecting, Harvard
Arts Panel, February 21, 2002, videotape of panel discussion available at www.law.harvard.
edu/faculty/martin/artspanel symposium.htm.
120 Id.
121 According to a compilation made by the law firm Herrick, Feinstein LLP, as of the
spring of 2002 there have been twelve claims resolved that involved museums in the United
States. These include: Art Institute of Chicago (Degas' Landscape with Smokestacks, on
loan from Daniel Searle); the Seattle Art Museum (Matisse's Odalisque); the North Caro-
lina Museum of Art, Raleigh (Madonna and Child in a Landscape by Lucas Cranach the
Elder); Art Institute of Chicago (Bust of a Youth by Francesco Mochi); Boston Museum of
Fine Arts (Adoration of the Magi by Corrado Giaquinto); Denver Art Museum (The Letter
from the School of Gerard Terborch); National Gallery of Art, Washington, D.C. (Still Life
with Fruit and Game by Frans Snyders); Princeton University Art Museum (St. Bartholo-
mew by Bernardino Pinturicchio); Metropolitan Museum of Art (The Garden of Monet's
House in Argenteuil by Claude Monet); Yale University Art Museum (Courbet's Le Grand
Pont on loan from Herbert Schaefer); Menil Collection (Matisse's La Riviere aux Aloes),
and the Los Angeles County Museum of Art (medieval ceremonial canopy of the 15th
century). Only the 15th century canopy was claimed by another public institution, the
Czartoryski Foundation Museum of Krakow (Poland). All the other claimants were the
heirs of private collectors. This compilation was distributed by Howard Spiegler as part of
a panel on Holocaust Era Looted Art Works at the May 2002 Meetings of the Section on
International Law and Practice of the American Bar Association [hereafter Spiegler, ABA
Panel] (paper on file with author). See also Howard N. Spiegler, Recovering Nazi-Looted
Art: Report from the FrontLines, 16 CoNN. J. INT'L L. 297, 300-03 (2001); Elaine L. John-
ston and Stephen W. Clark, Holocaust Era Assets Update, ALI-ABA Symposium: Legal
Problems of Museum Administration, Mar. 22-24, 2001, Washington, D.C.
Of these, four of the art works have been returned to claimants and
eight remain in museum collections. 2
The ways in which these claims were resolved vary considera-
bly. The earliest of these cases, which served as a model in subse-
quent claims, involved a Degas monotype, Landscape with
Smokestacks, originally owned by the Dutch collector, Friedrich
Gutmann. a23 In the earlier years of World War II, he sent this work
to a dealer in Paris, whether for purpose of sale or safekeeping is
not entirely clear.1 24 Gutmann's descendants claimed that the
work was looted by the Nazis from the Paris dealer and ultimately
sold through a Swiss dealer, Hans Wendland, well-known for han-
dling works for the Nazis and serving as a conduit through Switzer-
land by which many works reached the West, particularly England
and the United States.1 5 Both Gutmann and his wife were killed
in concentration camps during the war but were survived by a son
and daughter.1 26 Following the war, they began the search to re-
cover the art works in their parents' collection and two grandsons
ultimately located the monotype in the private collection of Daniel
Searle but on loan to the Art Institute of Chicago. 2 7
The claimants, Nicholas and Simon Goodman and Lili Gut-
mann, brought initial litigation. Several issues were presented.
The factual issues included the questions of whether the painting
was the same one described in inventories of the Gutmann collec-
tion and whether the painting had in fact been sold by the Paris
dealer, in which case the purchaser would have acquired good title,
even if the dealer did not compensate Gutmann for the sale. 28
The legal issues included whether the claim was barred by the stat-
122 Spiegler, ABA Panel, supra note 121. Claims against museums in foreign countries
and against foreign governments are more numerous, including two claims against foreign
museums that are being litigated in United States courts, United States v. Portrait of Wally,
2002 U.S. Dist. LEXIS 6445, No. 99 Civ. 9940 (MBM) (S.D.N.Y. 2002) (denying motion to
dismiss government's action for seizure and forfeiture of Egon Schiele painting); Altmann
v. Republic of Austria, 317 F.3d 954 (9th Cir. 2002) (holding that heir of Adele Bloch-
Bauer could sue Austrian museum in California for Gustav Klimt paintings).
123 Ron Grossman, Tracing Histories: How a Family's Degas Traveled from their Estate
to the Center of Controversy, CHI. TRIB., Jan. 28, 2001, at C1. For the story of this painting
and litigation from the perspective of Searle's lawyer, see HOWARD J. TRIENENS, LAND-
SCAPE wITH SMOKESTACKS: THE CASE OF THE ALLEGEDLY PLUNDERED DEGAS (2000).
124 Id. at 37-39.
125 NICHOLAS, supra note 113, at 166-69
126 TRIENENS, supra note 123, at 19-21.
127 Id. at 68-72.
128 Id. at 73-75.
ute of limitations 129 and whether under a conflict of laws analysis a

European purchaser could have acquired title under the European
civil law good faith purchaser doctrine, even if the painting had
originally been stolen. 130 None of these questions were ever re-
solved. The court denied Searle's motion for summary judgment,
and then the parties settled. 131 The settlement essentially treated
the Degas as owned half by Searle and half by the claimants.
Searle donated his half to the Art Institute and the Art Institute
purchased the Gutmann family's interest. As a result, the Art In-
132
stitute benefited from the addition of this work to its collection.
In the second claim brought against a museum in the United
States, the heirs of Paul Rosenberg, a prominent Paris art dealer
before World War II, claimed Matisse's Odalisque in the collection
of the Seattle Art Museum (SAM). 3 3 In this case, the identity of
the work and the fact of its theft were not in question, both of
3
which had recently been documented by writer Hector Feliciano.1 1
Nonetheless, the museum waited for the Rosenberg heirs to sue
the museum. The museum's Board of Trustees soon after voted to
return the painting to the claimants, but meanwhile sued the
dealer, Knoedler Gallery, which had originally sold the painting to
the Bloedels, who later donated it to the museum. Once the court
determined that SAM's suit against the dealer, Knoedler Gallery,
could proceed, the gallery and museum reached an out-of-court
135
settlement.
In the ten claims against museums that followed, only one
other involved litigation.1 36 In six cases, the museum paid a mone-
tary settlement to the claimants and retained the artwork. In three
cases, the museum returned the artwork to the claimant. In one
case, involving the Yale University Art Museum, the painting was
129 Id. at 76-82.

130 Id. at 83-84.
131 Id. at 87-96.
132 The Art Institute's curators had brought the monotype to Searle's attention because
it did not have the money to purchase the work and had hoped that Searle, who is a trustee
of the Art Institute, would donate the work to it. Walter V. Robinson, Holocaust Victims'
Heirs Given Share of a Degas, BOSTON GLOBE, Aug. 14, 1998, at Al.
133 Rosenberg v. Seattle Art Museum, 124 F. Supp. 2d 1207 (W.D. Wash. 2000).
134 HECTOR FELICIANO, 'THE LOST MUSEUM: THE NAZI CONSPIRACY TO STEAL THE
WORLD'S GREATEST WORKS OF ART 52-74, A6 (1997).
135 Sheila Farr, Seattle Art Museum, Gallery Agree to Settle Dispute with Cash, SEATTLE
TIMES, Oct. 21, 2000, at All.
136 Spiegler, ABA Panel, supra note 121.
137
owned by a private collector but was on loan to the museum.
The settlement provided that the collector would donate the art-
work to the museum and the museum would lend the painting to
the claimant for ten years. While in the majority of these cases the
museum did retain the work of art, albeit paying monetary com-
pensation to the claimant, the question can be raised as to whether
these restitutions or payments of compensation, particularly in the
absence of litigation and a court order, may violate the museum
trustees' fiduciary obligation of care for the museum's collection
and other assets.
Of particular concern would be those situations in which a mu-
seum board agrees to a settlement when an apparently viable de-
fense is available to the museum. Each case could raise factual
questions, such as whether the artwork claimed is, in fact, the same
one that once belonged to the claimants' family. It certainly falls
within the fiduciary obligation of a museum board to assure itself
that the identity of the claimed work of art is correct and the
proper claimant is bringing the claim before agreeing to a
settlement.
While a thief or one who receives possession of stolen prop-
erty from a thief can never gain title,13 8 claims for recovery of art
works looted during the Holocaust would often be subject to the
affirmative defense of the statute of limitations. Because the stat-
ute of limitations for the recovery of stolen personal property is, in
most states, at the longest, six years, 139 at least in theory these
claims should be barred. However, because the statutes do not
specify when the statutory time period should start to run and art
works are easily hidden for long periods of time, courts delay the
running of the statute either, as in New York, through use of the
demand and refusal rule1 40 or elsewhere through the discovery doc-
137 Anthony Ramirez, Yale To Lend Disputed Painting,N.Y. TIMES, Oct. 25, 2001, at D4.
138 The Anglo-American common law of property holds that a thief cannot convey good
title, nor can one claim title through a thief, even if the property passes into the hands of a
good faith purchaser. This principle is summed up in the expression, nemo dat quod non
habet (no one can give what one does not have). It has also been codified in the Uniform
Commercial Code, U.C.C. § 2-403 (1) (1998), which states "[a] purchaser of goods acquires
all title which his transferor had or had power to transfer ... "
139 See Patty Gerstenblith, The Adverse Possession of Personal Property, 37 BuFF. L.
REV. 119, 121-22 & n. 10 (1988). Two states, Louisiana and Rhode Island, provide ten
years. Id.
140 According to the demand and refusal rule, the statute of limitations does not start to
run until the original owner makes a demand upon the current good faith possessor for
return of the stolen property and the current possessor refuses. This rule necessitates that
trine. 141 The California statute of limitations specifically addresses

the problem of the recovery of stolen art works. 142 In addition, the
New York courts utilize the equitable defense of laches, which de-
termines whether the plaintiff's claim should be barred if the plain-
tiff has delayed unreasonably in bringing suit and that delay has
the original owner know where the property is located and the identity of the current
possessor before the statutory time period starts, thus giving the owner an opportunity to
find the property. The first application of the rule to the recovery of stolen artwork was a
case involving the theft of a Chagall during World War II. Menzel v. List, 253 N.Y.S.2d 43,
44 (N.Y. App. Div. 1964), and 267 N.Y.S.2d 804, 809 (N.Y. Sup. Ct. 1966), modified on
other grounds, 279 N.Y.S.2d 608 (1st Dep't 1967), modification rev'd, 246 N.E.2d 742 (N.Y.
1969). The demand and refusal rule was used by the Second Circuit in deciding another
World War II-related art claim as the rule of New York State. Kunstsammlungen zu Wei-
mar v. Elicofon, 678 F.2d 1150, 1161 (2d Cir. 1982) (holding that running of statutory time
period was delayed until plaintiff museum brought demand for return of two DUrer paint-
ings and current possessor refused). See also Republic of Turkey v. Metropolitan Museum
of Art, 762 F. Supp. 44, 45 (S.D.N.Y. 1990) (denying defendant's motion for summary
judgment on the statute of limitations issue because of New York's demand and refusal
rule).
141 The discovery doctrine delays the running of the statute of limitations so long as the
original owner is diligently searching for the stolen artwork. The doctrine was first applied
to a case involving the theft of paintings in O'Keeffe v. Snyder, 416 A.2d 862, 869 (N.J.
1980) (remanding for determination of whether artist George O'Keeffe had searched dili-
gently for missing art work), and was subsequently followed in Autocephalous Greek-Or-
thodox Church of Cyprus v. Goldberg & Feldman Fine Arts, 917 F.2d 278, 288 (7th Cir.
1990) (delaying running of statute of limitations while plaintiff searched diligently for 6th
century mosaics that had been stolen from church in northern Cyprus).
142 The California code is the only statutory provision for limitations on the recovery of
personal property that explicitly mentions artistic and cultural works. It provides a three-
year limitations period and states:
The cause of action in the case of theft ... of any article of historical, interpre-
tive, scientific or artistic significance is not deemed to have accrued until the
discovery of the whereabouts of the article by the aggrieved party, his or her
agent, or the law enforcement agency which originally investigated the theft.
CAL. CODE CIV. PROC. § 338 (c) (2002). It explicitly provides a discovery rule for accrual
of the cause of action but leaves unstated whether the provision refers to actual or con-
structive discovery. The only case to be decided under the current statute declined to de-
cide the issue of whether constructive as well as actual notice of the location of the object
would trigger the accrual of the cause of action. The court concluded the plaintiff had
brought the claim within the statutory time period under both standards. Society of Cali-
fornia Pioneers v. Baker, 50 Cal. Rptr. 2d 865 (Cal. Ct. App. 1996). In an earlier decision,
the California court interpreted the earlier statute, which did not explicitly refer to the
discovery of the property, to include an actual discovery requirement for accrual of the
cause of action. Naftzger v. American Numismatic Society, 49 Cal. Rptr. 2d 784 (Cal. Ct.
App. 1996). See Carla Shapreau, California Adopts an "Actual" Discovery Accrual Rule
for Claims to Recover Stolen Art, 7 INT'L J. CULTURAL PROP. 177 (1998). California has
enacted a new statute, effective January 1, 2003, that suspends the statute of limitations
entirely for the recovery of art works stolen during the Holocaust until December 31, 2010.
CAL. CODE Civ. PROC. § 354.3 (2003).
caused prejudice to the defendant. 143 Litigation based on a laches

defense is particularly fact-specific, time-consuming, and not ame-
nable to resolution on a motion to dismiss or for summary judg-
ment without a trial.114 The use of these doctrines to define the
beginning of the running of the statutory time period has pre-
vented the barring of all claims to recover stolen art works, with
one exception in a case that did not involve a Holocaust-looted
45
artwork.1
Use of either the laches defense or the discovery rule will ne-
cessitate a lengthy trial that would consume museum resources. It
will lead to losses in terms of finances, efforts of staff, and, in many
cases, negative publicity. It is thus reasonable for a board of trust-
ees to determine that its chances of retaining an art work through
litigation and use of these affirmative defenses are not likely to
succeed and thus to seek settlement, while saving the expense of
litigation.
143 New York State's use of the demand and refusal rule was reaffirmed by the New
York Court of Appeals in Solomon R. Guggenheim Found. v. Lubell, 569 N.E.2d 426, 430-
31 (N.Y. 1991). The court also pointed out, however, that a defendant could rely on the
equitable defense of laches, which requires a fact-specific inquiry into the conduct of both
parties and a showing that the claimant's unreasonable delay had caused prejudice to the
defendant. Id. at 431.
144 As Judge Mukasey recently wrote, use of the equitable defense of laches "would
involve a fact-intensive inquiry into the conduct and background of both parties in order to
determine the relative equities. Such issues are often not amenable to resolution on a
motion for summary judgment, let alone a motion to dismiss." United States v. Portrait of
Wally, 2002 U.S. Dist. LEXIS 6445, at *70 (S.D.N.Y. 2002) (citations omitted). See also
Guggenheim, 569 N.E.2d at 431 (stating that the equitable defense of laches requires in-
quiry into the conduct of both parties and a showing of prejudice); cf. Greek Orthodox
Patriarchate of Jerusalem v. Christie's, Inc., 1999 U.S. Dist. LEXIS 13257, No. 98 Civ. 7664
(KMW), at *7-*10 (S.D.N.Y. Aug. 30, 1999) (accepting laches defense as alternative hold-
ing on a motion for summary judgment, but noting that laches defense is usually an issue
for trial and collecting cases so holding).
145 In this case, Greek Orthodox Patriarchate,1999 U.S. Dist. LEXIS 13257, a trial judge
in the Southern District of New York applied French law under a conflicts of law analysis
to hold that the purchaser of an Archimedes palimpsest had acquired good title. As an
alternative basis for her holding, the judge also held that even under New York State law,
the claim would be barred through the equitable defense of laches because of the long time
period that had passed since the theft of the manuscript. Not only is this the only reported
case in which a claim was barred, it is also the only case involving theft of an historic work
in which foreign law was held to govern the claim rather than the law of the forum in the
United States. Cf. Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg & Feld-
man Fine Arts, 917 F.2d 278, 286-87 (7th Cir. 1990) (affirming District Court's reliance on
Indiana rather than Swiss law under a choice of law analysis). The dismissal of the claim
under an equitable defense of laches argument without trial was indirectly criticized in
Portraitof Wally, 2002 U.S. Dist. LEXIS 6445, at *70.
It has also been suggested that the particularly horrendous cir-

146
cumstances of the Holocaust necessitate a change in legal rules
and special consideration in evaluating attempts by family mem-
bers and heirs to recover their stolen art works. Some legal com-
mentators have advocated suspension of the statute of limitations
in all cases involving recovery of Holocaust-looted art works.147
Furthermore, in 2001 the American Association of Museums
promulgated its Guidelines Concerning the Unlawful Appropria-
tion of Objects during the Nazi Era. 148 Among these Guidelines,
those dealing with claims of ownership specify that "AAM ac-
knowledges that in order to achieve an equitable and appropriate
resolution of claims, museums may elect to waive certain available
defenses." 14 9 The Guidelines also state that "[w]hen appropriate
and reasonably practical, museums should seek methods other than
litigation (such as mediation) to resolve claims that an object was
unlawfully appropriated during the Nazi era without subsequent
150
restitution.'
Based on the statistics mentioned earlier, museums in the
United States seem, in fact, to be following these two principles.
These Guidelines would not, of themselves, have the effect of pre-
empting the state common law fiduciary obligations.' 5 ' However,
as expressions of what is considered acceptable museum practice,
the Guidelines would seem to be attempting to establish a standard
by which to judge whether the trustees and directors of museums
146 One commentator has suggested that Congress should enact legislation that would
shift the burden of proving title to the current possessor. Henson, supra note 115, at 1153-
57. Such a shift would have a significant impact on the fact-finding process. In some cases,
such as that of the Searle Degas, it might have been difficult to prove the exact facts of the
case, including the identity of the painting and whether it was sold legitimately or stolen by
the Nazis. In such a case, the placement of the burden of proof might be dispositive of the
outcome.
147 See, e.g., Stephanie Cuba, Stop the Clock: The Case to Suspend the Statute of Limita-
tions on Claims for Nazi-Looted Art, 17 CARDOZO ARTS & Er. L.J. 447, 480-89 (1999).
Another commentator has suggested suspending the statute of limitations in all cases in-
volving stolen art works. Stephen A. Bibas, The Case Against Statutes of Limitations for
Stolen Art, 103 YALE L.J. 2437 (1994).
148 The Guidelines may be found at http://www.aam-us.org/nazi-guidelines.htm.
149 Id. Para. 4 (f).
150 Id. Para. 4 (e).
151 It is well accepted that codes of ethics are not legally enforceable. However, they do
often have the effect of defining the duty of care, and it has even been stated that they
establish a rebuttable presumption as to the proper standard for museum trustee conduct.
See White, supra note 11, at 1046-47, n. 25 (collecting cases considering the legal effect of
codes of ethics).
are, in fact, fulfilling these obligations. This standard urges muse-

ums to forego use of affirmative defenses and to avoid litigation
whenever possible. It also reinforces the understanding that, as in
the NAGPRA repatriation process, museums' efforts to research
their collections and engage potential claimants in dialogue and
consultation have made significant progress in creating models for
museum conduct that should be intensified and extended to other
particularly problematic areas of museum collection manage-
152
ment.
2. Antiquities
While the presence and asserted presence of many objects
looted during the Holocaust in the collections of American muse-
ums have received considerable recognition, a different category of
often stolen property, that of antiquities, is likely to give at least
some American museums more reason for concern in the future.
The response of American museums to the problem of Holocaust-
looted art works has been precisely that-a reaction to pressure
brought by the media, government officials, individuals, and orga-
152 This recent move toward a consultative approach in dealing with Holocaust-looted
art works has not been uniform. Two cases have seen extensive litigation; both involve art
works that belong to museums in Austria. One case, Altmann v. Austria, 317 F.3d 954 (9th
Cir. 2002) involves the claim of the heir of Adele Bloch-Bauer to six Gustav Klimt paint-
ings in the Austrian Gallery in Vienna. No American museum or organization has entered
this case. The other case, United States v. Portrait of Wally, 2002 U.S. Dist. LEXIS 6445
(S.D.N.Y. 2002), involves an Egon Schiele painting that was on loan from the Leopold
Museum-Privatstiftung in Vienna to the Museum of Modern Art in New York. The heirs
of a Viennese collector made a claim for the painting. After extended litigation in the New
York State courts, the New York Court of Appeals held that the painting was protected
from seizure under New York statute, In re the Grand Jury Subpoena Duces Tecum Served
on the Museum of Modern Art, 719 N.E.2d 897 (N.Y. 1999); see also Ronald B. Kowal-
czyk, Section 12.03 of the New York Arts and CulturalAffairs Law: Civil by Association, 10
INT'L J. CULTURAL PROP. 95 (2001). U.S. Customs then seized the painting on the grounds
that it was stolen property. While the main party-in-interest was the Leopold, MoMA, as
well as the AAM as amicus curiae, have been extensively involved in the litigation.
MoMA's asserted interest is possessory in that it has rights of possession under its contract
with the Leopold; its potential injury arises from its liability in breaching its contract with
the Leopold if the painting is not returned. Portraitof Wally, 2002 U.S. Dist. LEXIS 6445
at *16-*17. MoMA also argued that it suffered injury because the seizure and forfeiture of
this painting would discourage the ability to display other art works on loan to MoMA.
The judge answered this argument, stating "[t]his projected hardship in the competition to
display stolen art is the sort of speculative injury that would be insufficient to confer stand-
ing, and thus saves me the interesting if distasteful task of deciding whether enforcing an
interest in displaying stolen art would violate public policy." Id. at *17 n.4. MoMA could
have avoided this litigation if it had sought federal immunity from seizure for the art works
it borrowed from the Leopold. 22 U.S.C § 2459 (2002).
nizations. 153 Museums have tended, on the other hand, to ignore to

a considerable extent other aspects of the problems of stolen cul-
154
tural objects, particularly antiquities.
The problem of antiquities looted directly from archaeological
excavations is now recognized as one of considerable monetary
magnitude and of worldwide scope.155 Looting destroys the strati-
graphic association and archaeological context not only of the
highly marketable, unique pieces that make their way onto the in-
ternational art market, but also of the many other types of less
saleable objects, such as everyday pottery, faunal and floral re-
mains, and other evidence of past life. Such objects appear in large
numbers and without documented provenience 5 6 on the interna-
tional art market and subsequently in private and museum
57
collections.1
153 Palmer, supra note 113, at 5 (describing the special international diplomatic initia-
tives concerning art works stolen during the Holocaust). It should be noted that art works
have been stolen during other wars. See, e.g., Autocephalous Greek-Orthodox Church of
Cyprus v. Goldberg & Feldman Fine Arts, 917 F.2d 278 (7th Cir. 1990) (6th century mosa-
ics stolen from church as result of war in Cyprus); Celestine Bohlen, Cultural Salvage in
Wake of Afghan War, N.Y. TIMES, April 15, 2002, at El (discussing thefts of antiquities
from Afghanistan during war); Elizabeth Neuffer, In War Scenario, Antiquities Seen in the
Line of Fire, BOSTON GLOBE, January 24, 2003, at Al (describing thefts from Iraqi muse-
ums following 1991 Gulf War). However, these other examples of war and human misery
have not received the same kind of universal recognition and attention surrounding the art
works stolen during the Holocaust, in either the legal system, the art world or the media.
154 Boyd, supra note 24, at 191. Gail Chaddock, Art World Wary of New Rules, CHRIS-
TIAN SCIENCE MONITOR, Feb. 10, 1998, at 11.
155 See, e.g., Mike Toner, Past in Peril: America the Looted, ATLANTA J. & CONST., Feb.
13, 2000, at 1C (describing looting throughout the United States and the significance of the
accompanying loss of context, as well as the increasing prices for Native American material
on the international art market); Toner, supra note 8, Coveting Thy Neighbor's Past. See
generally TRADE IN ILLICIT ANTIQUITIES: THE DESTRUCTION OF THE WORLD'S ARCHAEO-
LOGICAL HERITAGE (Neil Brodie, Jennifer Doole & Colin Renfrew eds. 2001).
156 The term "provenience" is used to indicate the history of an archaeological object
back to its archaeological find spot. The presence of a documented provenience will indi-
cate the original archaeological context and associated materials and strata. "Provenance"
has been used to indicate the modern history of the ownership of an object.
157 See, e.g., Christopher Chippindale & David W.J. Gill, Materialand Intellectual Con-
sequences of Esteem for Cycladic Figures, 97 AM. J. ARCHAEOLOGY 601 (1993) (conclud-
ing that approximately 90% of known Cycladic figurines dating from the 3rd millennium
B.C. and coming from the Cycladic Islands of the Aegean Sea do not have a known prove-
nience); Christopher Chippindale & David Gill, Cycladic Figures:Art versus Archaeology,
in ANTIQUITIES TRADE OR BETRAYED: LEGAL, ETHICAL AND CONSERVATION ISSUES 131,
132 (Kathryn W. Tubb ed., 1995) (same); Christopher Chippindale & David W.J. Gill,
Material Consequences of Contemporary Classical Collecting, 104 AM. J. ARCHAEOLOGY
463 (2000) (concluding that 91% of objects contained in several contemporary classical
collections exhibited and published in the 1990's neither had a known archaeological pro-
In order to combat this looting and destruction, many nations

have vested ownership of undiscovered antiquities in their national
governments. 158 By preventing looters from acquiring title to such
objects, these laws help to eliminate the incentive to market them,
as any purchaser runs the risk of later having to return the object.
Studies of auction house catalogues have demonstrated that ap-
proximately 85-90% of antiquities that appear on the contempo-
rary antiquities market do not have information given concerning
their archaeological origin.1 59 As representatives of the major auc-
tion houses have testified that documented information increases
the marketability of art works,1 60 these studies lead to the conclu-
venience nor could be documented before 1945); Ricardo J. Elia, Analysis of the Looting,
Selling, and Collectingof Apulian Red-Figure Vases: a QuantitativeApproach, in TRADE IN
ILLICIT ANIQUITIEs: THE DESTRUCTION OF THE WORLD'S ARCHAEOLOGICAL HERITAGE
145, 147 (Neil Brodie, Jennifer Doole & Colin Renfrew eds. 2001) (concluding that approx-
imately 88.4% of known Apulian red-figure vases from South Italy have no indication of
find spot); Elizabeth Gilgan, Looting and the Market for Maya Objects: a Belizean Perspec-
tive, in TRADE IN ILLICIT ANTIQUITIES: THE DESTRUCTION OF THE WORLD'S ARCHAEO-
LOGICAL HERITAGE 73, 80 (Neil Brodie, Jennifer Doole & Colin Renfrew eds.
2001)(concluding that less than 1% of the Maya objects auctioned at Sotheby's between
1971 and 1999 had indication of an archaeological find spot).
158 As examples: Italy enacted vesting legislation in 1939, see United States v. An An-
tique Platter of Gold, 991 F. Supp. 222, 231-32 (S.D.N.Y. 1997) (referring to Italy's owner-
ship law of 1939); Turkey in 1906, Decree of Antiquities, Art. 4 (1906) (cited in Ergun
Ozsunay, Protection of Cultural Heritage in Turkish Private Law, 6 INT'L J. CULTURAL
PROP. 278, 278 (1997)); Egypt in 1983, United States v. Schultz, 178 F. Supp. 2d 445, 447-48
(S.D.N.Y. 2002); Mexico in 1972, United States v. McClain, 545 F.2d 988, 997-1000 (5th
Cir. 1977).
159 See, e.g., Gilgan, supra note 157, at 80 (stating that no Maya artifacts offered in
Sotheby's catalogues had an archaeological find spot and 56% had no information at all
about geographic location); Elia, supra note 157, at 151-52 (stating that 99% of Apulian
vases on the market and in private collections and almost 90% of those in museums have
no information about provenience; of Apulian vases auctioned by Sotheby's in recent
years, none has a stated place of origin or discovery and only 15% have information about
previous owners); Christopher Chippindale, David Gill, Emily Salter and Christian Hamil-
ton, Collecting the Classical World: First Steps in a Quantitative History, 10 INT'L J. CUL-
TURAL PROP. 1, 19-20 (2001) (sampling of London Sotheby's and Christie's catalogues
from World War II to the present reveals that most sales have no named seller or prior
owner; 95-96% of objects have no archaeological find spot indicated, and 88-89% of ob-
jects auctioned have no historical information).
160 During hearings held by the House of Commons, Edward Dolman, Chief Executive,
Christie's (May 23, 2000) stated:
Where we can establish provenance for items we sell, of course we do as much
research as we possibly can, because ... it does in fact increase the value of the
item at auction if we can give a full provenance. Our specialists are all taught,
from day one when they enter Christie's, that it will be greatly to the detriment
of the company and their careers if we are seen to be selling stolen art .... It is
sion that failure to publish legitimate provenance information indi-

cates some illegality in the history of the antiquity.
Twenty-five years ago, the United States Circuit Court of Ap-
peals for the Fifth Circuit, in United States v. McClain,16 1 which
involved the criminal conviction of several dealers, established the
principle that if a foreign nation declared itself the owner of all as-
yet undiscovered antiquities, then the courts of the United States
would recognize this ownership. 62 If such antiquities are illegally
excavated and removed from that country, upon entry into the
United States the antiquities would be considered stolen prop-
erty. 163 Their status as stolen property makes them subject to for-
feiture under the Customs statute of the United States,1 6 or under
the National Stolen Property Act,16 5 or they may be subject to a
absolutely frowned upon at a very high level if they get anywhere near or at-
tempt to think about putting something like that through auction.
A full transcript of the testimony and documents presented during these hearings is availa-
ble on line. Available in the index for July 25, 2000 at: www.publications.parliament.uk/pa/
cm199900/cmselect/cmcumeds/cmcumeds.htm.
161 545 F.2d 988 (5th Cir. 1977); 593 F.2d 658 (5th Cir. 1979).
162 545 F.2d at 996-97.
163 Id.
164 19 U.S.C. § 1595a of the Customs statute allows for the seizure and forfeiture of any
goods brought into the United States "contrary to law." In the case of stolen property, the
law contravened is the National Stolen Property Act, 18 U.S.C. §§ 2314 and 2315. See, e.g.,
United States v. Pre-Columbian Artifacts, 845 F. Supp. 544, 546-47 (N.D. Ill. 1993); United
States v. An Antique Platter of Gold, 991 F. Supp. 222, 231-32 (S.D.N.Y. 1979), affd on
other grounds, 184 F.3d 131 (2nd Cir. 1999). Import of cultural objects that have been
stolen from museums, churches and other public collections and of antiquities and ethno-
graphic objects that are subject to import restriction under the Convention on Cultural
Property Implementation Act is prohibited and such objects are subject to seizure and
forfeiture. 19 U.S.C. §§ 2601 et seq. Other types of illegal activity, in addition to theft, may
lead to deaccessioning of objects and their forced restitution. For example, improper dec-
laration of objects concerning their nature, their country of origin or their value can lead to
an action for civil forfeiture. 18 U.S.C. §§ 542 and 545 make it a criminal offense to smug-
gle goods into the United States and both provide for punishment by fine and/or imprison-
ment. Smuggling includes the making of material false declarations concerning the goods
to be imported. 18 U.S.C. § 981(a)(1)(C) provides for civil forfeiture of "any property, real
or personal, which constitutes or is derived from proceeds traceable to a violation of" sev-
eral other statutory provisions, including 18 U.S.C. §§ 542 and 545. See, e.g., United States
v. An Antique Platter of Gold, 184 F.3d at 134-37. In 1969 the Boston Museum of Fine
Arts returned to Italy a Raphael painting that had been illegally imported into the United
States. The museum curator had apparently failed to declare the painting when bringing it
into the United States. Paul Bator, An Essay on the InternationalTrade in Art, 34 STAN. L.
REV. 275, 280 n. 13, 287 n. 30 (1982).
165 The National Stolen Property Act makes it a criminal offense to knowingly transport
in interstate or foreign commerce stolen goods with a value greater than $5000, 18 U.S.C.
§ 2314. It also makes it a criminal offense to knowingly sell, receive, or possess stolen
goods worth more than $5000 that have passed through interstate or foreign commerce, 18
civil replevin claim by the country that claims ownership. 166 Fur-
thermore, those who knowingly possess, sell or trade in such antiq-
uities are liable67for criminal prosecution under the National Stolen
Property Act.'
Some of the museum community and, in particular, the Amer-
ican Association of Museums have contested the validity of this
legal principle in recent years. In 1998, the AAM entered a case
involving the civil forfeiture of an ancient gold phiale that was
claimed by the government of Italy and argued that this doctrine,
known as the McClain doctrine, was not consonant with United
States law.1 68 Although on appeal the Second Circuit sidestepped
the question of recognition of the McClain doctrine, the several
courts that have directly addressed this doctrine have all concluded
that it is valid.1 69 A prominent example of the application of the
McClain doctrine to antiquities in the collection of a museum was
the return of0 the "Lydian Hoard," discussed at the beginning of
17
this article.
The recent conviction of the prominent antiquities dealer
Frederick Schultz 171 further advances the legal recognition in New
U.S.C. § 2315, 18 U.S.C. §§ 2314 and 2315. 18 U.S.C. 981(a)(1)(C) (civil forfeiture) and 18
U.S.C. § 982(a)(1) (criminal forfeiture) allow the government to seize and forfeit stolen
property, but civil forfeiture actions are subject to an innocent owner defense. The current
possessor of the stolen property bears the burden of proving both elements of this defense.
18 U.S.C. § 983(d).
166 See, e.g., Peru v. Johnson, 720 F. Supp. 810, 812 (C.D. Cal. 1989), affd sub nom.,
Peru v. Wendt, 933 F.2d 1013 (9th Cir. 1991) (recognizing validity of the McClain doctrine
to support replevin claim but holding that claimant had failed to establish that the antiqui-
ties in question came from Peru and that Peruvian law was not clearly a vesting statute);
Lebanon v. Sotheby's, 167 A.D.2d 142, 143-44 (N.Y. App. Div. 1990); Croatia v. Tr. of the
Marquess of Northampton 1987 Settlement, 203 A.D.2d 167, 167 (1994) (holding that the
claimant was unable to establish the source of the antiquities in dispute); Turkey v. OKS
Partners, No. 89-3061-WJS, 1994 U.S. Dist. LEXIS 17032 (D. Mass. June 8, 1994) (holding
that Turkish vesting law supported Turkish government's claims for replevin, conversion
and right to possession of a hoard of ancient coins). For another view of the story behind
the Sevso Treasure case, see Peter Landesman, The Curse of the Sevso Silver, ATLANTIC
MONTHLY, Nov. 2001, at 66.
167 See supra note 165. See also United States v. Schultz, 178 F. Supp. 2d 445, 445
(S.D.N.Y. 2002).
168 See Brief of Amici Curiae Am. Ass'n of Museums, et al. in Support of the Appeal of
Michael H. Steinhardt in United States v. An Antique Platter of Gold, 184 F.3d 131 (2nd
Cir. 1999), reprinted in 9 INT'L J. CULTURAL PROP. 76, App. I (2000).
169 See supra notes 166 and 167.
170 See Kaye & Main, supra note 1.
171 Celestine Bohlen, Dealer Is Guilty of Selling Stolen Egyptian Art, N.Y. TIMES, Feb.
13, 2002, at B3; Celestine Bohlen, Antiquities Dealer Is Sentenced To Prison, N.Y. TIMES,
June 12, 2002, at El.
York of this principle that antiquities looted directly from the
ground in a nation that has vested ownership in the national gov-
ernment are stolen property. The final determination of the appli-
cability of the McClain doctrine, however, still awaits resolution on
appeal before the Second Circuit. Nonetheless, museums that are
actively acquiring antiquities without provenience on the market
are running the substantial risk that they too are purchasing stolen
property.
Restitution in these circumstances involving stolen property
does not violate a fiduciary's duty of care as the museum never
acquired good title and is merely returning the object to the true
owner. However, the need for such restitution raises directly the
point that the fiduciaries whose museum acquired such objects may
be breaching their duty of care. The acquisition of works of art
that must then be returned to their owners can represent the seri-
ous depletion of museum resources and is not likely to encourage
future donations if donors are aware of the circumstances of these
acquisitions. In the case of antiquities, additional concerns are
raised by the decontextualization of these objects, a process in
which the museum, as ultimate acquirer, plays a significant role.
The loss of cultural, historical and scientific information that ac-
companies this decontextualization is detrimental to the museum's
educational mission. These questions will be considered further in
the last section of this article.
C. Voluntary Restitution
A more difficult question may arise in the case of voluntary
restitution-that is, situations in which a museum moves to return
an object without a direct statutory mandate or court order to do
so. Examples of such voluntary restitution, in fact, vary signifi-
cantly in their degree of "voluntariness." For example, at one end
of the spectrum are those museums that began to return Native
American human remains to tribal groups before enactment of
NAGPRA, such as the Field Museum of Natural History in Chi-
cago. 172 More recently, the Getty Museum has voluntarily restored
looted antiquities to Italy. Without any threat of a lawsuit but after
presentation of convincing documentation, the Getty made these
172 Steve Johnson, Museum's Blackfeet Remains to Go Home, CHI. TRIB., Oct. 20, 1991.
In 1978, the Zuni tribe successfully persuaded the Denver Art Museum to return a war
god, and in 1989 Stanford University agreed to return over 500 Ohlone Indian remains to
their descendants for reburial. See DuBoff, supra note 109, at 10.
restitutions on a voluntary basis. 73 At the other end of the spec-

trum are cases in which a museum voluntary returns a work of art
as settlement of pending litigation.
Museum fiduciaries do need to follow standards in determin-
ing not only when to make restitution but to be certain that mu-
seum objects are being returned to the correct party. This question
has arisen in only a few of the NAGPRA restitutions where the
same object has been claimed by more than one tribe or by differ-
ent factions of the same tribe.17 4
The answer to this question of the status of voluntary restitu-
tions will depend on a variety of factors. Museum fiduciaries need
to take several factors into account, such as the avoidance of litiga-
tion costs and negative publicity. Museum staff may acquire more
knowledge through a cooperative approach with groups or individ-
uals who present a claim than through an adversarial relationship.
It has also been shown in the more recent Holocaust-related cases
that a prompt and cooperative response by a museum increases the
likelihood that the museum will be able to retain the work of art.
The understanding of the fiduciary obligation that has been
achieved through the NAGPRA process and that should be ap-
plied to other types of restitutionary deaccessioning imposes an ob-
ligation on the museum to engage the community and the various
groups and individuals with which it deals, 7 5 rather than focusing
exclusively on the numbers of objects that it can retain in its
collection.
III. ACQUISITIONS AND FULFILLMENT OF

THE FIDUCIARY OBLIGATIONS
How do these restitutions fit with the public benefit purpose

of museums and their role as public, charitable institutions? The
functions of museums have been said to be to acquire, study, inter-
pret, display, educate and preserve. All of these are integral to the
museum's purpose and none should be ignored or diminished in
significance. Nonetheless, it is now recognized that a museum's
functions have broadened to include greater sensitivity to ethical
issues, manner of acquisition, and preservation of both archaeo-
173 Suzanne Muchnic, Getty to Return 3 Acquisitions to Italy, L.A. TIMES, Feb. 4, 1999, at
Al.
174 Fred, supra note 101, at 206-07 (describing the case of a wampum belt claimed by
two different groups of the Oneida).
175 Boyd, supra note 24, at 197-98.
logical and cultural contexts in order to fulfill their broader educa-

tional mission and purpose.176
Current practice among many museums acknowledges a shift
in power, as the result of both domestic legislation, such as
NAGPRA, and international agreements such as the 1970
UNESCO Convention on the Means of Prohibiting and Preventing
the Illicit Import, Export and Transfer of Ownership of Cultural
Property. 177 This shift requires cooperation among museum pro-
fessionals and their various constituencies in order for the museum
to continue to fulfill its public benefit and, particularly, educational
role. As one result, museum professionals now consult with Native
American tribes in the handling, care and disposition of a range of
Native American sacred and cultural objects. This consultation
was originally mandated by NAGPRA but now often goes beyond
these dictates. This process enriches the understanding that mu-
seum professionals can gain about these objects and thus makes
them better educators of the public. As Robin Wright, curator of
Native American art at the University of Washington's Burke Mu-
seum, said, "Museums 102 years ago were primarily interested in
acquiring objects. In my generation, museums have become more
interested in acquiring excellent relationships with native
' 178
peoples.
In the international context, the UNESCO Convention and
other international agreements also intend, among other goals, to
preserve original archaeological contexts so that greater knowledge
can be gained through the scientific excavation of sites. Such
agreements also focus on the necessity of maintaining ethnographic
objects within the context of their original indigenous communities.
Thus, the question should not focus so much on whether resti-
tution violates a museum's public duties or its board's fiduciary ob-
ligations but rather whether the method of acquisition of these
objects may be a violation of these duties when intentional or neg-
ligent disregard results in a situation in which objects must later be
deaccessioned. Some museum professionals, such as James Cuno,
former Director of the Harvard Art Museums, suggest that muse-
ums are performing an act of rescue when they buy on the art mar-
ket without careful consideration of the source of these objects.
176 Id. at 188-99; Weil, supra note 21, at 229-230, 235-36.

177 Nov. 17, 1970, 823 U.N.T.S. 231, 10 I.L.M. 289 (1971).
178 Mullen, supra note 96, at 9.
Dr. Cuno claims that museums are not responsible for the separa-
tion of these objects from their original owners and original con-
texts. In fact, he views it as a positive when a museum acquires an
object, researches its background and, if the museum is then
"caught out," returns the object. 1 79 However, whether the museum
is caught out or not, each of these situations is, in fact, a failure,
because they all result in a loss of cultural and scientific informa-
tion. 180 Museums need to understand that by actively participating
in a market of undocumented objects, they are aiding and abetting
not only these particular losses but future losses as well.
Without commenting upon past museum practices, it is possi-
ble to say today that those museums that do not exercise sufficient
due diligence in acquiring works of art are ignoring the educational
and scientific value of the objects they acquire and are breaching
their public and fiduciary obligations. Concern for these obliga-
tions should be incorporated into a two-pronged approach. The
first prong requires a redefinition of the duty of care in the acquisi-
tions context that takes into account the appropriate degree of
good faith needed to discharge this duty. This prong also requires
an understanding that the acquisition of decontextualized objects
causes historical, cultural and scientific losses. Actions that en-
courage these losses should be viewed as a breach of the duty of
loyalty to the museum's educational and public benefit purposes.
The second prong proposes some specific, practical steps that can
be taken to effectuate this redefinition.
A. Redefinition of the Duty of Care in the Acquisitions Context

When a museum is required to deaccession an object in order
to return it to an original owner or to forfeit it due to some other
illegal action, the financial loss to the museum may amount to mil-
lions of dollars. Such losses may amount to a breach of both the
duty of care and the duty of loyalty. However, the failure to fulfill
these fiduciary duties does not occur at the time of deaccession;
rather, it occurs at the time that the object is first acquired. It is the
failure to consider adequately the security of title, the possible vio-
179 James Cuno, The Whole World's Treasures,BOSTON GLOBE, March 11, 2001, at Ell.
180 This notion of rescue has been refuted by Professor Boyd, who wrote: "Traditionally,
museums have stressed the benefits of the 'movement' of objects without adequate regard
for the detrimental aspects of movement from the point of view of others.... [T]he move-
ment of objects that results in cultural and environmental loss, destruction, and desecration
cannot be justified." Boyd, supra note 24, at 198.
lation of other legal rules, and the losses to human knowledge that
constitute these breaches, which are potentially actionable by the
state attorney general or, where permitted by law, enforceable
through a private action by the museum's public beneficiaries.
Museum acquisition policies or methods of effectuating them
that assume the valid origin and good title of an object unless
proven otherwise pose many potential pitfalls to those responsible
for caring for the museum's collection and financial assets. While,
under the business judgment rule, directors and trustees are not
liable for acts of simple negligence,' 8 ' they are responsible for car-
rying out their obligations in good faith. It is now necessary to
reevaluate what constitutes good faith and simple negligence in the
context of museum acquisitions policies.
A policy of supposed due diligence that relies on "conscious
avoidance" of either the state of the law in the United States or in
foreign countries or of the factual background of an acquisition
must be considered a breach of the fiduciary duty of proper care.
While this notion of conscious avoidance comes most recently out
of the conviction in the Schultz case,182 the underlying concept of
what is required for effective due diligence is crucial to the defini-
tion of this fiduciary obligation. 83
181 Louisiana World Exposition v. Fed. Ins. Co., 864 F.2d 1147, 1150 (5th Cir. 1989);
Stern v. Lucy Webb Hayes Nat'l Training Sch. for Deaconesses and Missionaries, 381 F.
Supp. 1003, 1013 (D.D.C. 1974).
182 The Schultz case involved the prosecution of a prominent New York antiquities
dealer for possessing and dealing in antiquities stolen from Egypt. The judge's instruction
to the jury concerning the defendant's knowledge that the antiquities were stolen included:
A defendant may not purposefully remain ignorant of either the facts or the
law in order to escape the consequences of the law. Therefore, if you [the jury]
find that the defendant, not by mere negligence or imprudence but as a matter
of choice, consciously avoided learning what Egyptian law provided as to the
ownership of Egyptian antiquities, you may [infer], if you wish, that he did so
because he implicitly knew that there was a high probability that the law of
Egypt invested ownership of these antiquities in the Egyptian government.
You may treat such deliberate avoidance of positive knowledge as the
equivalent of such knowledge...
Jury Instructions, United States v. Schultz, 178 F. Supp. 2d 445 (S.D.N.Y. 2002) (No. 01 CR
683 JSR). If such an approach can satisfy the criminal standard for establishing knowledge
and intent, then it should apply equally (without necessarily giving rise to criminal liability)
in the evaluation of the museum trustees' good faith in fulfilling the duty of care. The
formulation of this jury instruction is one of the issues raised by Schultz in his appeal to the
Second Circuit. Appellant's Brief, United States v. Schultz, 178 F. Supp. 2d 445 (S.D.N.Y.
2002) (No. 01 CR 683 JSR).
183 Despite the context of the Schultz case as a criminal prosecution, it has apparently
had an effect on the museum community. See, e.g., Martha Lufkin, Museums Worry about
One court has defined the standard of good faith in the busi-
ness corporation context as follows:
Good faith is determined under a subjective standard without
considering the party's negligence. The term "bad faith" re-
quires showing some indicia of dishonest conduct. The mere
failure to make inquiry, even though there are suspicious cir-
cumstances, does not constitute bad faith, unless the facts and
circumstances are so cogent and obvious that to remain passive
would amount to deliberatedesire to evade knowledge because of
a belief or 84fear that inquiry would disclose a defect in the
transaction.'
This standard clearly ties the definition of good faith to the concept
of conscious avoidance, a situation in which one fails to inquire
concerning title in order to avoid learning of possible illegalities in
the background of an object being considered for acquisition. Fur-
thermore, if the standard for judging the conduct of the director or
trustee in question is not explicitly defined by statute, then courts
may look to commercial law, the Uniform Commercial Code in
85
particular, for definitions of good faith.
The concept of good faith has played an important role in the
commercial law of the United States and appears in several con-
texts in the Uniform Commercial Code.' 86 Good faith itself has
been variously defined in different time periods. 187 During the
Jury Instructions in Antiquities Conviction Case, TH-u ART NEWSPAPER, at http://www.the

artnewspaper.com/news/article.asp?idart=9759.
184 Richards v. Platte Valley Bank, 866 F.2d 1576, 1582-83 (10th Cir. 1989) (citations
omitted) (emphasis added).
185 Id. at 1582.
186 The concept of good faith is relevant to the U.C.C. provisions pertaining to the per-
formance of obligations, because all parties to contracts are required to perform in good
faith. Good faith is mentioned in over fifty of the U.C.C.'s provisions with definitions
specific to the enumerated transaction. See Alan Farnsworth, Good FaithPerformance and
Commercial Reasonablenessunder the Uniform CommercialCode, 30 U. CHI. L. REV. 666,
667-71 (1963). For example, in U.C.C. § 3-103(4) and § 4A-105(6), good faith means "hon-
esty in fact and the observance of reasonable commercial standards of fair dealing."
"Good faith," for purposes of the obligation of good faith in the performance or enforce-
ment of contracts or duties within the Article, means "honesty in fact and the observance
of reasonable commercial standards of fair dealing." U.C.C. § 8-102(10). The only defini-
tion not subject to the recent changes in the standard of good faith is § 5-102(7), which
defines "good faith" as "honesty in fact in the conduct or transaction concerned."
187 Much of the differing definitions of good faith developed in the context of the treat-
ment of the good faith purchaser. Before the Industrial Revolution, the rights of the origi-
nal owner were protected. Mautner explains that the more traditional concept of good
faith purchaser, which required a higher standard of proof of good faith, as well as of value,
was prevalent in the pre-Industrial era, in part because the law was typically called upon to
19th century, a relatively low standard of good faith developed in
order to encourage commerce over considerable distances and at a
time when communications were difficult.188 The purchaser
needed to rely on the agent's possession of the goods and apparent
title to them and so the purchaser was protected even if the agent
had not dealt honestly with the original owner of the goods.18 9 This
definition of good faith based on a low standard was subsequently
codified, first in the Uniform Sales Act1 90 and later the Uniform
Commercial Code, even though its justification was later
questioned. 191
The standard of good faith applied by the Uniform Commer-
cial Code to the non-merchant was that of "honesty in fact in the
conduct or transaction concerned. ' 192 "Honesty in fact" involves a
subjective good faith standard that requires only that the party act
honestly; even unreasonable or stupid behavior is insufficient to
find a lack of good faith. This type of good faith is not dependent
on an objective evaluation of conduct based on a standard of rea-
sonableness. Because the court would look to the actual lack of
knowledge on the part of the non-merchant purchaser, the use of
this standard discourages a purchaser from searching title because
193
what the purchaser does not know will not hurt.
resolve conflicts over personal and not fungible property. Menachem Mautner, "The Eter-
nal Triangles of the Law": Toward a Theory of Priorities in Conflicts Involving Remote
Parties, 90 MICH. L. REV. 95, 121-22 n.92 (1991).
188 In the 19th century, it was thought necessary to protect purchasers who were dealing
with agents or factors representing the original owners of the goods, and there was a strong
public policy of encouraging commercial transactions and geographic expansion. The law
therefore developed to protect a purchaser who relied on the apparent right of a possessor
to transfer good title to personal property. As Grant Gilmore, one of the architects of the
Uniform Commercial Code, described this change: "[T]he law for the new age [that is, the
19th century] became a law of contract, which assumes exchange, not a law of property,
which assumes stability." Grant Gilmore, The Good Faith PurchaseIdea and the Uniform
Commercial Code: Confessions of a Repentant Draftsman, 15 GA. L. REV. 605, 607 (1981).
189 Gilmore, id. at 605, attributes Karl Llewellyn, Chief Reporter for the U.C.C., with
advocating "the purchaser is always right."
190 The Uniform Sales Act's definition of good faith states: "A thing is done 'in good
faith' within the meaning of this act when it is in fact done honestly, whether it be done
negligently or not." Unif. Sales Act §76(2), 3B U.L.A. 488 (1992).
191 Gilmore, supra note 188; Grant Gilmore, The Commercial Doctrine of Good Faith
Purchase, 63 YALE L.J. 1057 (1954).
192 U.C.C. § 1-201(19).
193 Mautner describes the traditional concept of good faith as requiring, first, that the
purchaser not act with actual knowledge of conflicting rights, and second, that the pur-
chaser "should not hold any suspicion as to this possibility.. .[T]he standard for measuring
lack of suspicion is objective. Whenever the circumstances that surround the transaction
The merchant was subject to a stricter standard for the deter-

mination of good faith. The definition of good faith applied to the
merchant required both "honesty in fact" and "the observance of
'194
reasonable commercial standards of fair dealing in the trade.
Although this standard combined a subjective and an objective
test, the use of the words "in the trade" diluted the objective por-
tion of the definition. Though this standard seemed to be much
stricter than that applied to the non-merchant, the art trade is a
notable exception, where it has been customary practice for dealers
and auctioneers not to inquire of their clients concerning documen-
tation of the artistic and cultural objects that they are asked to
sell.1 95 This penchant for secrecy is routinely used to avoid asking
questions or delving into an object's background, and the fact that
it is widely practiced became a way of applying a relatively weak
standard for any determination of good faith, even for a merchant
1 96
dealing in the art market.
are such that a reasonable person in the position of the purchaser would have suspected
that a prior conflicting right or claim exists, the purchaser would be deemed to have acted
in bad faith ..." Mautner, supra note 187, at 111-12. However, this standard did not
require due care and reasonable diligence in attempting to discover the existence of a prior
conflicting claim. See also Johnson & Johnson Prod. v. Dal Int'l Trading, 798 F.2d 100, 106
(3d Cir. 1986) (describing the traditional standard as "the subjective, 'pure heart and...
empty head' standard").
194 See U.C.C. § 2-103(1)(b); §1-201, Official Comment 19 (explaining that Article 2 on
Sales provides a specific definition of good faith for merchants applicable only in that
article).
195 For example, in one case expert witnesses "confirmed that it is not the practice in the
art industry, in the absence of warnings, for a buyer to require a seller to make disclosures
about the chain of title or the prices paid at every link in the chain." Morgold v. Keeler,
891 F. Supp. 1361, 1368 (N.D. Cal. 1995). See also Claudia Fox, The Unidroit Convention
on Stolen or Illegally Exported Cultural Objects: An Answer to the World Problem of Illicit
Trade in Cultural Property, 9 AM. U. INT'L L. REv. 225, 233 & n.42 (1993) (discussing the
lack of inquiry customary in the art market).
196 In the case Porter v. Wertz, 416 N.Y.S.2d 254 (N.Y. App. Div. 1979), the owner of a
Utrillo painting entrusted it to Harold Von Maker; through an intermediary, Von Maker
sold the painting to Feigen, an art gallery, although Von Maker had breached his agree-
ment with the original owner, Porter. When Porter attempted to recover the value of the
painting from Feigen, the applicability of the entrustment provisions in § 2-403 of the
U.C.C. came into question. One of the issues was whether Feigen qualified as a "buyer in
the ordinary course of business," for which Feigen had to establish that it had dealt with a
"person in the business of selling goods of that kind" and that Feigen had acted in good
faith. Because Feigen was held to the higher, objective standard of good faith applicable to
merchants, the court concluded that Feigen had not satisfied the standard. Even though
the definition includes the "reasonable commercial standards of fair dealing in the trade,"
the court found that the habitual failure of art merchants to inquire concerning the back-
ground of works of art could not excuse the failure to make such inquiries. The court
concluded that the standard "should not and cannot be interpreted to permit, countenance
The Permanent Editorial Board for the Uniform Commercial

Code has proposed the adoption of a higher standard of good faith
to non-merchant buyers as well as merchant dealers. These
changes would also eliminate the definition of reasonableness
based on current industry practice. This would mean that the art
merchants' traditional failure to inquire about provenance would
no longer provide an excuse for their failure to investigate title.
In the 1997 draft of the revisions to Article 1, which contains
the definition of terms, the higher standard of good faith, which
had been present previously for merchants in Article 2, is applied
to most uses of "good faith" in the Uniform Commercial Code.
The revised definition calls for "honesty in fact and the observance
of reasonable commercial standards of fair dealing. ' 197 Thus, the
standard for the non-merchant is heightened significantly because
the objective standard would apply equally to both merchants and
non-merchants. In the 1999 proposed revisions to Article 2 of the
U.C.C., proposed § 2-102(23) (Definitions) explicitly applies the
same revised definition of the 1997 revision of Article 1. While it
would seem that the standard for the merchant has not changed
significantly, the deletion of the phrase "in the trade"19 should
have a significant impact on some merchants, such as those en-
gaged in the art market and, of greater importance, should have a
or condone commercial standards of sharp trade practice or indifference as to the 'prove-

nance,' i.e., history of ownership or the right to possess or sell an objet d'art..." Id. at 257.
In pointing out the ease with which an employee of Feigen could have learned the truth
about Von Maker, the court seemed to apply a negligence standard in judging whether
Feigen had acted reasonably in the transaction. Without such a search, there would not
have been any factors to have made the employee suspicious. Thus the court seemed to
require that the purchaser who wants to claim good faith status must undertake a search
with some degree of reasonableness.
The court also failed to excuse Feigen's conduct by relying on the practices of the art
trade. The court concluded, "commercial indifference to ownership or the right to sell
facilitates traffic in stolen works of art. Commercial indifference diminishes the integrity
and increases the culpability of the apathetic merchant." Id. at 259. Mautner concedes
that Porter v. Wertz stands for the proposition that when the purchaser can determine that
there are conflicting prior claims, considerations of efficiency and retribution "may man-
date that the standard of negligence be applied to measure the conduct of the purchaser."
Mautner, supra note 187, at 117 & n. 80.
197 U.C.C. § 1-201(22)(1997). This section explicitly states that this definition is
subordinate to the one offered in Article 5, which pertains to Letters of Credit, but this
does not alter the application of the new definition involving sales and both merchants and
non-merchants.
198 Richard E. Speidel & Linda J. Rusch, Article 2: Highlights of the ProposedRevisions,
SC 36 A.L.I.-A.B.A. 15, 18 (1997) (noting the deletion of the phrase "in the trade" in the
proposed revisions).
significant impact on the interpretation of good faith conduct in

other contexts.
To incorporate a redefinition of the museum fiduciary's duties
of care and loyalty in the acquisition phase of collection manage-
ment, two steps may be suggested. The first is that museums need
to adopt acquisitions policies consonant, at a minimum, with what
the law requires and sufficient to protect the museum's collection
from the need for deaccession. The second step is to ensure that
museums effectively follow these policies. It is suggested that both
these steps ultimately are the responsibility of museum fiduciaries,
through the drafting of such a code and oversight of professional
staff.
Some museums have acquisitions policies that follow these
principles, and the code of ethics adopted by the International
Council of Museums sets a satisfactory standard that should help in
insulating a museum from these concerns. 199 Some museums have
199 The Code of the International Council of Museums states:

Museums should recognize the destruction of human and natural environments
and loss of knowledge that results from the illicit servicing of the market place.
The museum professional must warrant that it is highly unethical for a museum
to support the illicit market in any way, directly or indirectly.
A museum should not acquire any object or specimen by purchase, gift,
loan, bequest or exchange unless the governing body and responsible officer
are satisfied that a valid title to it can be obtained. Every effort must be made
to ensure that it has not been illegally acquired in, or exported from, its country
of origin or any intermediate country in which it may have been owned legally
(including the museum's own country). Due diligence in this regard should
establish the full history of the item from discovery or production, before ac-
quisition is considered.
In addition to the safeguards set out above, a museum should not acquire
objects by any means where the governing body or responsible officer has rea-
sonable cause to believe that their recovery involved the unauthorized, un-
scientific or intentional destruction or damage of ancient monuments,
archaeological or geological sites, or natural habitats, or involved a failure to
disclose the finds to the owner or occupier of the land, or to the proper legal or
governmental authorities. Nor should a museum acquire, directly or indirectly,
biological or geological material that has been collected, sold or otherwise
transferred in contravention of any local, national, regional or international
wildlife protection or natural history conservation law, or treaty, of the mu-
seum's own country or any other country.
A professional conflict can exist when an acquisition, highly desired by a
museum, lacks provenance. However, the ability to establish legal title to the
item must be an overriding factor when considering acquisition. In very rare
cases an item without provenance may have an inherently outstanding contri-
bution to knowledge that it would be in the public interest to preserve. Such
discovery is likely to be of international significance and should be the subject
of a decision by specialists in the discipline concerned. The basis of the deci-
codes but do not make them public, which means that they cannot
be scrutinized either by the public or by government authorities,
such as the state attorney general, who has responsibility for over-
sight and supervision of public charitable trusts. In addition, some
museums that have what appear to be admirable codes of ethics
now interpret these codes to grant wide latitude in their
enforcement.
For example, the Harvard University Art Museums adopted a
model acquisitions policy in 1971 that states:
The Museum Director, librarian, curator or other University of-
ficer. . . responsible for making an acquisition should assure
himself that the University can acquire valid title to the object in
question. This means that the circumstances of the transaction
and/or his knowledge of the object's provenance must be such as
to give him adequate assurance that the seller or donor has valid
title to convey. ... [and] ... have reasonable assurance that the
object has not within a recent time, been exported from its
country of origin (and/or the country where it was last legally
owned) in violation of that country's laws. .oo
Nonetheless, even this policy leaves significant room for interpreta-
tion, and it has, in fact, been interpreted in recent years to allow
the acquisition of archaeological objects with little or no informa-
tion concerning archaeological context, legality of title or legiti-
mate export from the country of origin.2 ° ' Such actions, in
apparent ignorance of or disregard for the legal and financial risks
and the losses to the cultural and historic record fostered by this
interpretation of its acquisitions policy, should be incorporated into
the evaluation of whether the museum's trustees are taking ade-
quate care of the museum's resources within the rubric of the fidu-
ciary obligation.
To deal with these types of legal difficulties, some museums
have incorporated the concept of due diligence into their acquisi-
tions policies. Due diligence includes demanding documentation
from the previous owner of the object, independent research into
the background of the object and previous publications, and check-
sion should be without national or institutional prejudice, based on the best

interests of the subject discipline and be clearly stated.
THE INT'L COUNCIL OF MUSEUMS, ICOM CODE OF PROFESSIONAL ETHICS § 3.2 (Nov. 4,
1986, amended July 6, 2001), available at http://icom.museum/ethics.html#3.
200 Walter V. Robinson & John Yemma, HarvardMuseum Acquisitions Shock Scholars,
BOSTON GLOBE, Jan. 16, 1998, at Al.

201 Id.
ing with the computerized databases that now compile records of

stolen works of art, such as the Art Loss Register.20 2 In short, the
guidelines and definition of due diligence that have been devel-
oped by the museum community for the acquisition of objects that
may have been stolen during the Holocaust era should now be ap-
plied to all acquisitions, particularly to those objects that come
from areas known to have been the victim of war and civil unrest,
to archaeological objects, and to ethnographic objects that come
from outside the United States and are therefore not subject to
NAGPRA. If museums are capable of responding to the pressures
exerted where Holocaust assets are concerned, then they should
now take similar proactive steps to ensure the same high degree of
due diligence in their other acquisitions, as well.
However, particularly in the case of antiquities that are ille-
gally excavated, many of the types of research utilized in the acqui-
sition of most museum objects will not indicate whether the
museum can acquire good title to the archaeological object. The
biggest difficulty is that an illegally excavated object will be un-
known to the government of the country of origin until after the
object appears on the market or in a museum collection and the
government therefore is unable to register the archaeological ob-
ject as stolen with a computerized database. The check of such a
database will not reveal anything concerning the background of the
object in question. The demand for documentation from the seller
of the object may provide only questionable information. The cus-
tom of the trade is often not to ask questions and not to reveal
information concerning the prior owner. In addition, falsified doc-
umentation is not difficult to obtain, although it can often be
proven fraudulent later.20 3
202 For a list of steps that a museum should take in considering an acquisition, see Elaine
L. Johnston, Cultural Property and World War If: Implications for American Museums,
PracticalConsiderationsfor the Museum Administrator,A.L.I.-A.B.A. COURSE OF STUDY
MATERIALS, LEGAL PROBLEMS OF MUSEUM ADMINISTRATION, SC 40 (March 1998).
203 Recently the Princeton University Art Museum agreed to return to Italy a Roman
marble funerary monument from the time of Hadrian that was found in Rome in 1981-82
and apparently illegally exported. The work had been on exhibit since 1985. The museum
director stated that the dealer from whom the museum purchased the monument "had all
the papers and was extremely thorough." Carol Vogel, Inside Art, N.Y. TIMES, July 15,
2002, at E36. Given Italy's strict export controls and claim to ownership of undiscovered
antiquities and the museum's apparently quick agreement to recognize Italy's claim, one
must wonder what type of documentation the dealer had.
Despite these difficulties in searching background, a museum

is not free to conclude that an archaeological or ethnographic ob-
ject without documentation should be presumed to be of legitimate
origins. It is the most efficient result in these circumstances to
place the onus on the museum as purchaser to require and receive
adequate, legitimate documentation or simply to decline to
purchase the object in question. The ultimate responsibility for
such decisions lies with the museums' fiduciaries.
B. Government Regulation to Enforce the Fiduciary Duties

In addition to the indirect government regulation that comes
from the oversight of the conduct of museum fiduciaries from the
state attorney general and the Internal Revenue Service, there are
several measures that could be taken at either the federal, state, or
local government levels that would further these same goals of en-
suring protection of museum assets through careful acquisitions
policies and conduct. The first method of direct government regu-
lation would be the enactment of state statutes that require muse-
ums to publicly disclose information concerning all acquisitions,
through both purchase and gift, and the documentation that estab-
lishes the museum has acquired good title.20 4 It is ironic, in this
time of excessive corporate mismanagement and greed, that Pro-
fessor Paul Bator wrote years ago, "it is absolutely fantastic that we
should live in an atmosphere where people who sell potatoes and
stocks and bonds have rules about disclosure which do not apply to
the buying and selling of Rembrandts and Picassos by our public
20 5
museums."
While some state officials and several legal commentators
have argued for greater public disclosure in the context of the
deaccessioning of art works, 20 6 the same or even greater necessity
204 Professor Boyd called for greater public disclosure and openness of museum records
and collections, stating "[t]he public expects museums to demonstrate leadership in ethical
conduct by over-compliance, not by shaving it close." Boyd, supra note 24, at 194. Acquisi-
tions should include both purchases and gifts received by museums. If acquisitions do not
include gifts, then it becomes too easy for museum professionals to evade their own acqui-
sitions policies simply by encouraging a potential donor to acquire the object and then
donate it to the museum.
205 Quoted in Goldstein, supra note 56, at 229.
206 Id. (discussing the actions of the New York State Attorney General at the time of
the Metropolitan Museum's deaccessioning of the de Groot and other collections and argu-
ing for greater public disclosure of deaccessions). See generally Hansmann, Reforming
Nonprofit CorporationLaw, supra note 15, at 617-22 (proposing stricter disclosure require-
exists for public disclosure of acquisition of art works. One state,

Wisconsin, has enacted anti-secrecy legislation that requires public
disclosure of, among other things, "the condition of the museums,
the articles added to the museum, and such other information and
suggestions as the board deems important, including also an ac-
count of the money credited to the museum fund, and the expendi-
'20 7
tures therefrom during the year.
Questions may legitimately be raised about the efficacy of
such an "anti-secrecy" law to protect the public from imprudent
acquisitions. The fact that the Wisconsin statute seems not to have
been litigated, at least not in any published court proceedings, in
the fifteen years of its existence may indicate an under-enforce-
ment of its provisions. In addition, to act as an effective safeguard,
such an anti-secrecy statute would need to be more specific in re-
quiring the publication of the museum's acquisitions policy; publi-
cation of details of the acquisition; and documentation of how the
particular acquisition comports with the requirements of the mu-
seum's policy.
It is also true that the public scrutiny of the transaction would
come only after the transaction was finalized. Nonetheless, con-
cern for public attention would likely force both museum fiducia-
ries and museum professionals to be much more careful in making
acquisitions. The documentation provided would also give inter-
ested members of the public, as well as state oversight agencies and
officials, the information needed if necessary to evaluate the fiduci-
ary's conduct against his or her responsibilities and obligations.
The group with the greatest interest in ensuring adherence to these
duties may well be the donors who contribute funds for operating
museums as well as for acquisitions. Such disclosure would also
allow donors to inform themselves about those museums that are
ments for nonprofit corporations and emphasizing that such disclosures must be accessible
to both the donors and the beneficiaries of the nonprofit).
207 Wis. STAT. ANN. § 229.18 (2002). See also Gabor, supra note 55, at 1022-24. It is
not unusual for state statute to require specific disclosures of museums that are directly
owned by a state or local government, such as a state historical museum. See, e.g., 55 ILL.
COMP.STAT. 5/5-31006 (2001) (requiring boards of county historical museums to report
annually to the county board). Finally, two states have enacted legislation that refers to a
general obligation of all museums to make reports. NEB. REV. STAT. § 51-509 (2002) (re-
quiring all museum boards to make an annual report of activity); Wvo. STAT. § 18-10-104
(2001) (giving museum boards custody of collection and requiring an annual report).
likely to use these funds most wisely and that are not likely to lose
these assets through restitutionary deaccessioning.2° 8
Second, granting agencies and government entities that give
direct funds to museums should make the strict observance of ethi-
cal acquisition policies a prerequisite for the granting of support.
Many museums receive significant public funds, ranging from di-
rect grants to low-cost leases to indirect benefits through tax ex-
emptions. It is entirely reasonable that the government and the
public should require accountability from the museum in exchange
for these financial benefits.2 °9
Finally, in the case of objects that are donated to museums by
private collectors, the quality of title and documentation support-
ing the donor's claim to good title should be a factor in determin-
ing whether gifts of objects are eligible for tax deduction
purposes.2 1 0 The security of title and the ability of a museum to
know that the object has been legally acquired is a part of the mar-
ket value of the object. Knowledge of the provenance and, in the
case of archaeological objects, of the find spot and original context
is a significant part of the educational value of an object. This un-
derstanding of value should thus be incorporated into the valuation
of a donated object for tax deduction purposes.
The culture of collecting still fostered by some museums is one
that needs to go through a process of evolution that incorporates
these concerns. Not much more than a decade ago, many museums
feared what would happen when legislation such as NAGPRA was
passed. Yet it was passed, and many museum professionals, while
208 See Hansmann, Reforming Nonprofit Corporation Law, supra note 15, at 608-09
(stating that patrons, beneficiaries, and donors have an interest in the managers carrying
out their "contract" to devote funds to the organization's purpose and adhering to their
fiduciary obligation).
209 Britain's National Art Collection Fund, which assists museums in making purchases,
has recently tightened its requirements on provenance. Museums seeking funds will have
to obtain information concerning provenance or a signed statement from dealers or other
sellers or, in the case of auctions, documentary proof of provenance back to 1970. Muse-
ums will also have to publicly disclose their policies on acquiring items that might have
been illegally excavated or exported. Martin Bailey, More Ethics-ProvenanceRules, THE
ART NEWSPAPER, July 2002, at http://www.theartnewspaper.com/news/article.asp?idart=
9773.
210 See PATRICK J. O'KEEFE, TRADE IN ANTIQUITIES: REDUCING DESTRUCTION AND
THEFT 64-65 (1997) (proposing that tax deduction schemes take into account the source of
objects and their previous ownership history). O'Keefe also suggested introducing a sales
tax regime that would allow the taxing of sales of antiquities with documented provenience
at a lower rate. Id. at 66.
acknowledging some losses to their collections, nonetheless today

regard it as a success in encouraging greater cooperation and in-
creasing the understanding of Native communities by both muse-
ums and the American public. Some believe that collecting is an
inevitable human activity that will never change, and it is both fu-
tile and counterproductive to attempt to craft a legal regime that
would discourage the decontextualization of objects from their
original contexts.
For those who believe this, we can point to the example of
NAGPRA and the impact that it has had on the collecting of eth-
nographic objects. Many museums and even dealers and auction
houses have significantly decreased or discontinued the marketing
of ethnographic objects that are known to come from tribes within
the United States. However, a comparable shift has not yet oc-
curred in the market for antiquities and ethnographic objects that
come from other parts of the world. Yet we can see that such an
evolution in attitude is possible through a combination of legal
changes and public education. One way to encourage this evolu-
tion is to place responsibility on museum fiduciaries to fulfill their
obligations of care and loyalty through adoption and implementa-
tion of acquisition policies that will avoid the need in the future for
restitutionary deaccessioning of museum collections.

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Bluebook 21st ed.

ALWD 6th ed.

APA 7th ed.

Chicago 17th ed.

McGill Guide 9th ed.

AGLC 4th ed.

MLA 8th ed.

OSCOLA 4th ed.

In 1993, the Metropolitan Museum of Art ("Met") in New

* Professor, DePaul University College of Law. I want to thank Katherine Ivancevich

3 Republic of Turkey v. Metropolitan Museum of Art, 762 F. Supp. 44 (S.D.N.Y.

I. NONPROFIT ORGANIZATIONS AND FIDUCIARY OBLIGATIONS

A. The Nature of Museums as Educational Institutions

ZATIONS & ASSOCIATIONS 1-2 (Prentice Hall, 6th ed. 1994).

most generally available to nonprofit organizations are the charita-

conduct is generally restricted to the state attorney general 17 who,

from income for individuals and corporations 27 or from the valua-

of the museum's physical assets (the building and, in the case of a

the duties of their respective positions in good faith, and with

49 LA. REV. STAT. ANN. § 12:226(A) (2002).

form the same function, regardless of whether the museum is for-

B. Deaccessioningand the Fiduciary Duties of Loyalty and Care

prospect of forfeiture generally serves as a sufficient disincentive so

museum's physical facility.6 4 One of the strengths of American mu-

II. PARADIGMS OF RESTITUTIONARY DEACCESSIONS

Different paradigms of restitution from museum collections

ble statutes that apply to excavations and newly discovered objects

that it will reduce significantly the number of newly-discovered cul-

tailed summaries of unassociated funerary objects, 83 sacred ob-

89 25 U.S.C. § 3005(c). Right of possession is defined as "possession obtained with the

repatriated.93 Once a summary of unassociated funerary objects,

The question then is whether the deaccessioning that has been

tary support. 1°° It is therefore necessary to consider whether

disposition of an object, which was itself ultimately settled through

equivalent state statutes has become an affirmative part of the mu-

possession obtained with the voluntary consent of an individual or group that

B. Restitution Pursuant to Law: Failure of Title

1. Art Works Stolen during World War II

movement, theft and destruction of art works known to history.

114 NICHOLAS, supra note 113, at 408-444.

ute of limitations 129 and whether under a conflict of laws analysis a

129 Id. at 76-82.

trine. 141 The California statute of limitations specifically addresses

caused prejudice to the defendant. 143 Litigation based on a laches

It has also been suggested that the particularly horrendous cir-

are, in fact, fulfilling these obligations. This standard urges muse-

nizations. 153 Museums have tended, on the other hand, to ignore to

In order to combat this looting and destruction, many nations

sion that failure to publish legitimate provenance information indi-

restitutions on a voluntary basis. 73 At the other end of the spec-

III. ACQUISITIONS AND FULFILLMENT OF

How do these restitutions fit with the public benefit purpose

logical and cultural contexts in order to fulfill their broader educa-

176 Id. at 188-99; Weil, supra note 21, at 229-230, 235-36.

A. Redefinition of the Duty of Care in the Acquisitions Context

Jury Instructions in Antiquities Conviction Case, TH-u ART NEWSPAPER, at http://www.the

The merchant was subject to a stricter standard for the deter-

The Permanent Editorial Board for the Uniform Commercial