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slaughtered ivory, while allowing the world to continue learning from works
of art created in earlier periods and when different standards prevailed.
What Eike Schmidt, the curator of decorative arts and sculpture at the
Minneapolis Institute of Arts, finds particularly absurd is that the moment
in the 19th century when people starting aggressively hunting elephants
was the same one when artists ceased using ivory. (He notes an exception:
some 20 or 30 years in which Belgian Art Nouveau used ivory.) Its been
more than 200 years since it was used for artistic purposes, he says. What
is being made now is fake in wood or plastic. Its pseudo-tribal carvings
made by some sweatshop, probably in China or Hong Kong.
Many U.S. museum curators and registrars have recently found
that ivory masterworks they want to borrow from, or lend to, foreign
institutions will not clear U.S. customs since they dont have the right
documentation. Naturally, all parties are fearful that their objects will
be confiscated by U.S. agents and destroyed. Similar problems are facing administrators working in the field of classical music, where many
items such as woodwinds and violin bows contain small ivory parts that
may not be thoroughly documented, even if they are centuries old. And
believe it or not, many gun dealers are equally vexed, since antique firearms often contain ivory inlays.
Under the current legislation on interstate trade, a Pennsylvania
native who, say, inherits a collection of ivories from a deceased relative and
drives it to New York to get it appraised, could lose it all if pulled over for
speeding and found to be lacking a CITES permit. The policeman has no
choice but to confiscate it, Schmidt says. And it will be destroyed.
When it came time to secure the Fish and Wildlife permits needed
by the major New York auction house where Sarah Hassan once worked,
it was such a headache, she recalls. Horror stories of other salerooms
being raided were recounted by her firms in-house legal counsel in order
to get the staff s attention: Theyll come and clean you out, and fine the
hell out of you, Hassan says of Fish and Wildlifes strong-arm extension. The laws implications have seemed to change weekly, and have
hit some colleagues harder than others, particularly the Japanese department, Hassan notes. She and her fellow specialists agreed that elephants
need protection, but they failed to see a connection between old ivories
and todays elephants. When youre selling Mrs. Smiths tea set from
Arizona and shes 89 years old, you shouldnt have to threaten her with
going to jail, Hassan notes. These are family heirlooms. A lot of people
dont have dated records going back.
commerce, even if it is applied purely intrastate. It is also expressly preempted by the Endangered Species Act, according to McCullough, a
former associate counsel at Sothebys.
Auctions are intended, McCullough says, to attract the most buyers in order to generate the highest bids. This purpose would clearly be
frustrated if a New York auctioneer were forced to hold different auctions for different lots for New York bidders and non-New York bidders,
he explains. The result would be lower hammer prices and more unsold
lots. That would clearly burden interstate commerce.
It is also, he says, unclear how a gallery or private dealer could avoid
hurting its sales if required to segregate its marketing and sales efforts
between New York and out-of-state buyers. McCullough concludes,
therefore, that New Yorks bill cannot govern Internet sales, which are
necessarily global and national in scope, and the legislation can only
legally apply to non-commercial sales and family transfers where all of
the parties and the ivory are in-state.
In the short term, the legislation is hurting the decorative arts
market, McCullough says, but he doesnt expect it to last: The Obama
administrations actions will likely be overturned by legislation in 2015,
because several very powerful groups, including the National Rifle
Association, are seeking legislation. (Since he commented, the newly
strengthened Republican majority in both houses of Congress will probably side with the NRA, and they are probably reluctant to ally with the
Clinton Foundation, which has been a vocal proponent of the new law.)
Moreover, McCullough notes, the New York Ivory Law will likely be
struck down in federal court in 2015, because the law is preempted by
the Endangered Species Act.
Moving forward, the broader question that will require careful attention, says Schmidt, of the Minneapolis Institute of Arts, is whether other
countries will just copy and paste this regulation, or whether it will be
a largely U.S.-led effort. Hoover, of the Fish and Wildlife office, points
to major buy-in from China, Thailand, Hong Kong, and elsewhere, and
their commitment can be measured in tons of ivories crushed in those
countries, which he says were responses to the U.S. ivory crush.
Schmidt hopes that whatever happens on the global scale, it wont
oversimplify the nature of the problem. For me personally, because I do
love nature and I care a lot about that, my key point is that there is this
false notion of saying, You have to decide between the animal and the
art, he says. You do not have to do that. n
The Prognosis
When Michael McCullough, a partner at the New York law firm
Pearlstein & McCullough, which serves the domestic and international art
markets, reads through the legislation attempting to ban the ivory trade, he
sees quite a few problems. New Yorks ivory law cannot burden interstate
Menachem Wecker holds an M.A. in art history from George Washington University, and writes for the Washington Post, National Catholic Reporter, Jewish Daily
Forward, and Houston Chronicle. Based in Washington, D.C., he co-authored the book
Consider No Evil: Two Faith Traditions and the Problem of Academic Freedom in
Religious Higher Education (2014).