State Department Seeks Blockade on Nepalese Art

Statute of Vishnu, Thakuri period, 1105, gilt copper, presented by His Majesty Mahendra Bir Bikram Shah to Chester Ronning, (c) Metropolitan Museum of Art.

Cultural Property News wishes to thank Dr. Pratapaditya Pal, the world-renowned authority on Indian and Nepalese art, for sharing his many insights into early scholarly research and collecting in Nepal. Stay tuned to CPN for a wide-ranging interview with Dr. Pal, the author of some 90 works on Asian art, and one of the first to bring exhibitions and museum collections of South Asian art to American museums, coming soon.

The Cultural Property Advisory Committee (CPAC) will meet in virtual “open session” for one hour on September 19, 2023 to hear public testimony on both a new request for import restrictions from Nepal and on Honduras’s request for renewal of a 20 year old Memorandum of Understanding (MOU) under the 1983 Cultural Property Implementation Act.[1]

The CPAC will take public comment for three to five minutes only per person. To participate in the virtual hearing, email culprop@state.gov by Sept 12 to participate.  The deadline to submit written comments or to request to speak in the virtual open session is September 12, 2023 at 11:59 pm (EDT). You can submit comments on Nepal or Honduras on the regulations.gov website at DOS-2023-0023-0001. 

If you care about preserving access to art from Nepal and Tibet for U.S. museums and the public, please send comments. Letters and comment can be short or long – what counts is that your voice is heard!

We are sharing some of the key points of our written testimony on Nepal below. Please feel free to include these points in your submissions! Our Honduras testimony is here.

For additional information on Nepal’s cultural policy and the emergence of non-governmental repatriation advocacy groups, see Citizen Advocates Want Nepalese Art Back, Cultural Property News, February 3, 2022. The Committee for Cultural Policy will post its full testimony prior to September 12, here at Cultural Property News.

What Criteria Must Be Met Under U.S. Law for an Agreement Under the Cultural Property Implementation Act (CPIA)?

The request must satisfy all four requirements set forth in the statute. The requirements are:

1. The cultural patrimony of the State Party (Nepal) is in jeopardy from the pillage of archaeological or ethnological materials of the State Party.
2. The State Party has taken measures to protect its cultural patrimony.
3. The application of the requested import restriction if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by nations with a significant import trade in the designated objects, would be of substantial benefit in deterring a serious situation of pillage, and other remedies are not available.
4. The application of the import restrictions is consistent with the general interest of the international community in the interchange of cultural property.

Nepal’s Request Fails to meet Legal Criteria Under the CPIA

1. Q: Is Nepalese cultural patrimony (its ancient and ethnographic art) currently threatened by pillage?

The inner part of the Bhadrakali Devi of Kathmandu. Photo Rajesh Dhungana, 09 July 2021, CCA-SA 4.0 International license.

Nepal’s cultural patrimony is not currently threatened by pillage. However, bronze and stone objects and architectural woodcarvings were frequently sold by custodians or stolen outright from temples and other sites in the 1970s and into the 1980s. It should be clear that there is not evidence of current theft from shrines, temples, and monuments from Nepal.

Despite the damage and destruction caused by the earthquake of 2015 to many important monuments in Kathmandu, there has been no evidence of looting or illegal export of objects or architectural heritage as a result.

All the objects currently being sought by Nepalese activists from Western collectors and museums left Nepal decades ago. The objects being sought from Nepal by Nepalese activists today have no actual record of when and how they left the country. They are objects shown in photographs taken by early Western researchers in Nepal.[2]

Krishna Temple in Watu, the business center of Kathmandu. Inside the temple, a statue of Krishna is carved in black stone and a picture of Krishna is placed on top of the statue. Photo Rajesh Dhungana, 11 October 2021, CCA-SA 4.0 International license.

The activists make the assumption that the sculptures from temples were ‘stolen’ and in many cases this is likely to be true. However, many were also sold by the legal custodians of the objects and replaced with less valuable idols, and many more sculptures that left Nepal were privately owned votive figures belonging to individuals, which could be legally sold under Nepalese law, but could not be exported without a permit.

Nepal’s role as a transit point through which art from neighboring regions found a home also renders an MOU both counter-productive and geopolitically risky. The majority of the art that has left Nepal was not originally from Nepal. It is either Tibetan-made or was rescued from Tibetan monasteries and temples by fleeing refugees. Much of the art made by Newari (Nepalese) craftsmen that has allegedly “come from” (i.e. was shipped out of) Nepal, was made inside Tibet by Newari craftsmen who were hired by Tibetans. Much of the finest art that has come from within the borders of today’s Nepal did not come from the Kathmandu Valley, which mid-20^th C Nepalese considered the limits of “Nepal proper,” but instead from Tibetan-speaking peoples in parts of Nepal that did not consider themselves “Nepalese.”

2. Q: Has the Nepalese government taken steps to protect its cultural patrimony?

Visitation of the Bhairavnath temple of Bhaktapur Katmandu Valley, Nepal 1970s, photo by United Archives / Walter Rudolph, CCA-SA 3.0 Unported.

With the generous assistance of numerous international donors since the 1990s, Nepal’s government has cooperated in both international and domestic projects of restoration. The repair and restoration of architectural monuments has taken place primarily inside the Kathmandu Valley with the help of U.S. donor-supported organizations such as the Kathmandu Valley Preservation Trust.

Nepal’s most recent heritage law allocates responsibility for preservation (generally) to its Department of Archaeology, village and municipality Development Committees, private owners of monuments, and spiritual communities/temple custodians. Nepalese law delegates responsibility for temples and shrines to their custodians and requires them to utilize a portion of the shrine revenue for upkeep, security, etc. The Nepalese government provides little or no security or even support for monuments or religious entities outside the Kathmandu Valley.

The recent demands for repatriation and claims to “heritage” originated just a few years ago and were begun by young activists, including many from the elite circles of Brahmin society in Nepal. Their efforts to locate objects that were either stolen or simply exported without extant records of permission have pushed Nepal’s government to make claims for specific objects after the activists have located them in global museums or private collections.

Nepal earthquake, 26 April 2015, photo by Nirmal Dulal, CCA-SA 4.0 International.

The Nepalese government clearly failed to take measures to keep objects inside Nepal in the past. Some of the earliest major exports allowed were done for the express purpose of having exhibitions in Western museums in order to show the beauty of Nepalese art and celebrate the skill of its artisans. Nepal, as a landlocked country was all too aware of the need to get along with its far more powerful neighbors, India and China, and to make friends internationally, particularly in the West. The royal family was eager to promote Nepalese culture and celebrate Nepalese identity through U.S. museum exhibitions and did not seek the objects’ return.

From the time of the Communist takeover, its relations with the U.S. cooled and trade with China virtually ended until the late 1970s. U.S. collectors, unable to collect Chinese works, turned to new sources and new interests in Asia. It is from this period that U.S. collecting of Indian, Nepalese, and Tibetan art really began.

There were no barriers to the export from Nepal of objects collected by the scholar Stella Kramrisch that she later gave to the Philadelphia Museum of Art, where she served as Curator for Indian Art (and Nehru himself facilitated her exports from India) or to export by other scholars of objects for study and museum collections. While scholars and the art dealers who came soon after were aware that there were laws forbidding export, in a small town like Kathmandu, it was known that they existed only on paper. (In 1970 Greater Kathmandu’s population was only 147,000 people; in 1980 it was only 235,000. That’s comparable to the size of Waco, TX and Laredo, TX today).

Santaneshwar Mahadev located at Indra Chowk, Kathmandu. Devotees who do not have children come here to worship and hope for children. Photo Rajesh Dhungana, 18 July 2021, CCA-SA 4.0 International license.

Nepal’s royal family had close ties to early scholars visiting Kathmandu, hosted prominent U.S. collectors in palace apartments and presented gifts of antique art to them when they departed. A particularly socially active “playboy” Prince was one of the major dealers in Nepalese art. There was direct involvement of Nepali royals and more distant family in the art trade, art objects (though not major sculptures) were openly displayed for sale, and it was common knowledge that air shipping agents routinely acquired government permits for export.

In 1998, Jürgen Schick’s, The Gods Are Leaving The Country; Art Theft from Nepal first made the public aware how idols had been taken from shrines and monuments in the Kathmandu Valley throughout the second half of the 20^th century. Schick’s book made clear that the Nepalese government had not only failed to protect historical monuments of great importance, even within the capital of Kathmandu, but that Nepalese officials either ignored or were complicit in the removal of sacred statues.

As Schick states in 1998 in The Gods Are Leaving the Country (p39):

“There is, to be sure, a law stating that no work of art more than one hundred years old may be taken out of the country. That’s what is written on paper; the reality of the situation makes a mockery of the law.

Nepalese have been waiting in vain for effective countermeasures by the state, even though it is normally the duty of the government to protect the nation’s art treasures. Thus it is up to the affected persons themselves, the faithful, the priests, the temple watchmen, to provide assistance on their own, to the extent they can.”

Schick, perhaps naively, thought that the Nepalese should maintain their spirituality at the cost of their comfort. He blamed the theft of art from temples on the influence of the influx of millions of dollars in development funds in the late 20th century into an impoverished country of largely illiterate mountain farmers. He argued that modern life, with its array of desirable but expensive motorcycles, radios, and other consumer goods had undermined traditional worship, community cohesion, and the ‘magic’ of Nepal. For many Nepalese families, however, one devotional object could be replaced by a newer one – the religious power it held was not based on its age.

A statue of Bhairav in the temple complex of Chamunda Devi in Jorpati, Kathmandu. Photo Rajesh Dhungana, 11 October 2021, CCA-SA 4.0 International license.

Today’s Nepalese government is certainly aware of what happened in the past and is acting now under pressure from a youthful elite of repatriation activists located in Nepal. If objects can actually be shown to have been stolen from temples or monuments or any other inventory, then they can and should be returned to Nepal. Any object that is actually stolen can be claimed in the U.S. under both the CPIA and the National Stolen Property Act, without any need for an MOU agreement. If an object left through sale with the government’s approval, even if not in compliance with laws on the books at the time, then their return should be up to those that currently hold them.

However, it should be noted that even today, Nepali law is not a national ownership law. Private ownership of objects and even monuments is allowed. Many people own ancient religious figurines and have antique architectural elements in their home shrines. There are restrictions against demolishing monuments designated with a sign by the government, and explosives may not be used by builders on the monument property, nor is defacing them allowed. Custodians of village temples and religious institutions outside of the Kathmandu Valley are generally deemed to have responsibility and authority over the objects in their custody and they are obligated by law to pay a portion of their revenue to maintain and protect the objects the temples hold.

3. Q: U.S. law provides that import restrictions may be implemented only if applied in concert with similar restrictions implemented, or to be implemented within a reasonable period of time, by nations with a significant import trade in the designated objects, would be of substantial benefit in deterring a serious situation of pillage, or establish that other, less drastic remedies are not available. Is this the case?

There is no evidence that a U.S. market for Nepalese antiquities and ethnographic materials has triggered a current “serious situation of pillage.” There is not a current “serious situation of pillage” to be deterred. There are currently more than adequate numbers of objects on the art market in the U.S. and Europe from collections made in the mid to late 20^th century now being dispersed. U.S. and European import restrictions will impede the circulation of art that has been outside of Nepal for 30-60 years, but which no longer have records of legal export. This will not deter “a serious situation of pillage.”

4. 

   Ethnographic map of Nepal. Dr. Harka Bahadur Gurung (1939–2006), 24 December 1998, CCA-SA 4.0.

   Q: Is the application of the import restrictions is consistent with the general interest of the international community in the interchange of cultural property?

Under these circumstances, how could the application of import restrictions be consistent with the general interest of the international community in the interchange of cultural property?

Furthermore, it is a fact that it requires a specialist art historian (and sometimes scientific analysis) to identify the difference between Nepalese and Tibetan artworks – that is, between (1) artworks made in Tibet by Tibetans, and (2) artworks made in Tibet by Newari (Nepalese) artisans as commissions for Tibetan monasteries, and (3) artworks made by Newari (Nepalese) artisans in Nepal. Even scholarly, well-respected art historians can differ. (U.S. Customs officers sometimes rely on museum staff to assist in identifying seized objects but given the remarkably high percentage of fakes repatriated by Homeland Security, their expertise may be questionable.)

Tibetan Monks After Uprising. Students for a Free Tibet. Wikimedia Commons.

The mistaking of Tibetan objects for Nepali objects is not only a practical argument against an MOU. An MOU with Nepal could easily result in the seizure of Tibetan artworks, made in Tibet. Claims to these artworks by China, which currently has a cultural property MOU with the U.S., would be devastating for the Tibetan community in exile. China is currently going further than ever before to crush Tibetan language, Tibetan religion, and Tibetan identity in Tibet. Through its forced sterilization and its mandatory taking of 900,000 Tibetan children from their families and placing them in locked boarding schools, China is committing genocide in Tibet.

These are some of the legal, political, civil and human rights issues intertwined with “cultural property” that transited Nepal, and which, under Nepali law, could also be claimed by it, since unregistered cultural property from another country also is not allowed export.

Dalai Lama speaks to a large crowd on the National Mall during the 2000 Smithsonian Folklife Festival which featured a program on Tibetan Culture Beyond the Land of Snows. Photo by Jeff Tinsley, 2000, Wikimedia Commons.

Unlike any other art-source country in the world, the majority of antiquities exported from Nepal in the past ARE NOT of Nepalese origin. They are from Tibet, which was invaded by China, its sovereignty usurped, and its ruler, the Dalai Lama, driven into exile with thousands of his followers. China destroyed 95%-98% of the monasteries in Tibet. The art that was brought by fleeing Tibetans to Nepal was not “registered.” It was exported to India and to Europe and the United States, Australia, Singapore, Hong Kong and Japan in the same way as Nepalese art, with the active cooperation of Nepalese government officials.

In 2011, when Dr. Alice Kandell gave the National Museum of Asian Art at the Smithsonian several hundred objects forming a complete Tibetan shrine (an exhibit that became the most popular in the museum’s history), the Dalai Lama attended the announcement of the gift.

His Holiness told Kandell:

“Your intention is very good. Showing Tibetan art and providing an explanation is important. People will gain a deeper understanding of the Buddha and a way of thinking that is very much based on peace and compassion.”

Clearly, the request from the Republic of Nepal for a bilateral agreement with the US does not meet the test under U.S. law.

[1] Convention on Cultural Property Implementation Act, 19 U.S.C. §§2601-2613.

[2] A primary source are the images of 1000 sculptures collated and published in Ulrich von Schroeder, Buddhist Sculptures in Tibet: India & Nepal, Visual Dharma, 2001.