Eighth Circuit Rules in the Case of the Ka Nefer Nefer Mummy Mask

[UPDATED June 19, 2014 and July 1, 2014]

The Ka Nefer Nefer Mummy mask will stay at the St. Louis Art Museum (SLAM), at least as far as the federal forfeiture case is concerned. That is the outcome of today’s Eighth Circuit Court of Appeals decision in U.S. v. Mask of Ka Nefer Nefer.

The appeals court let stand the lower court's 2012 ruling, which concluded that the government failed to plead sufficient facts in its original forfeiture complaint to show that the Ka Nefer Nefer mask was stolen and subject to seizure.

The companion declaratory judgment case of SLAM v. U.S., which focuses on whether SLAM has good title to the mummy mask, remains unaffected by today's appellate decision. (UPDATE: the declaratory judgment case has been withdrawn by SLAM).

Eighth Circuit Judge James Loken, who observed during oral argument that the government made mistakes, remarking “You now have to beg for a do-over,” authored today's lead opinion.

The issue raised on this appeal is whether the district court abused its discretion in denying the government’s post-dismissal motion for leave to file an amended civil forfeiture complaint. Underlying that issue is an attempt to expand the government’s forfeiture powers at the likely expense of museums and other good faith purchasers in the international marketplace for ancient artifacts. We affirm the district court’s procedural ruling and therefore leave this important substantive issue for another day.

Judge Loken's ruling peppered the government with criticisms for committing procedural missteps.

Judge Diana Murphy notably wrote an important concurring opinion to “express my concern about what the record in this case reveals about the illicit trade in antiquities.” She acknowledged that the lower court did not abuse its discretion when dismissing the government’s forfeiture case, commenting that “[t]he government was dilatory,” but the jurist penned several cautionary paragraphs to explain that institutions and individuals in the antiquities marketplace must act lawfully. Judge Murphy wrote, in part:

The substantive issues underlying this litigation are of great significance, and not only to museums which responsibly seek to build their collections. The theft of cultural patrimony and its trade on the black market for stolen antiquities present concerns of international import.
… 

While this case turns on a procedural issue, courts are bound to recognize that the illicit sale of antiquities poses a continuing threat to the preservation of the world's international cultural heritage. Museums and other participants in the international market for art and antiquities need to exercise caution and care in their dealings in order to protect this heritage and to understand that the United States might ultimately be able to recover such purchases.

Today's appellate decision stops government lawyers from litigating the allegations made in their late-filed amended complaint that the mummy mask is stolen property and remains in the U.S. "contrary to law." The government might be able to raise this claim in SLAM's declaratory judgment action, but that case could prove to be an uphill battle for federal attorneys.

The case of U.S. v. Ka Nefer Nefer started when the United States Attorney in St. Louis moved to take the mummy mask from SLAM in 2011 in order to return it to Egypt. The U.S. Attorney filed the action in response to SLAM first filing a declaratory judgment suit seeking judicially-recognized ownership of the mask. While the declaratory judgment action remained stayed, district court judge Henry Autrey brought the government’s forfeiture case to an end in April 2012 after concluding that the government's complaint failed to specifically articulate how the mask was allegedly stolen and smuggled, or how it was brought into the U.S. contrary to law. Federal prosecutors filed a motion to reconsider, and in May 2012 the government revealed new information that it said would support an amended complaint. Judge Autrey denied the motion to reconsider, but prosecutors submitted their proposed amended complaint anyway. The district court repeated that it had dismissed the case. The government thereafter appealed to the Eighth Circuit, and the parties offered oral arguments in January.

Today’s appellate decision can be found here, and a complete list of CHL's posts chronicling the litigation may be found by clicking here.

Questions that remain as a result of the halted litigation have been raised by David Gill here.

Photo credit: Jason Morrison

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com