The Museum of Russian Icons in Clinton, Massachusetts, has apparently been told by the U.S. Fish & Wildlife Service that it will not be receiving the anticipated loan of a Byzantine ivory relief of the Death of the Virgin for the exhibition “Saints and Dragons: Icons from Byzantium to Russia.” This no doubt springs from the new U.S. policy on ivory, but even under that stringent approach, the temporary import for a cultural exhibition should have been permitted. The museum may have recourse, but it has apparently made a backup plan for another object to round out the show. The case still serves as a useful framework to consider the new legal reality. This is also a real shame, because it is the second time in the last few years that the museum (which is an absolute gem, founded privately in 2006 by art collector and industrialist Gordon B. Lankton) has been affected by international contretemps (the first relating to the Russian exhibition loan embargo arising out of the Chabad case).
Ivory is an endangered species whose import and export is controlled by the Convention on International Trade in Endangered Species of Wild Flora and Fauna (“CITES”). CITES has schedules of materials that vary depending on the animal’s rarity and level of endangerment. “Appendix I” specimens are the most tightly controlled, and include African elephant ivory. Appendix I specimens are not flatly banned from the United States, but the CITES permitting process in both the exporting and importing country determine if an item can enter the United States. CITES Appendix I specimens (not limited to African elephant ivory) are eligible for, and do, receive CITES permits for cultural exchanges and exhibits. Appendix II includes Asian elephant ivory, and still highly regulated.
But in 2014, the Obama Administration issued an Executive Order to tighten imports even further. Under the National Strategy for Combating Wildlife Trafficking & Commercial Ban on Trade in Elephant Ivory, all commercial trade in elephant ivory is prohibited. The rationale advanced for this is effectively for the purpose of eliminating any possible black market supply because the endangerment and poaching of African elephants has reached an acute stage not seen since the 1980s. First, it is impossible to determine if a specimen is Asian or African elephant without testing the material itself, in a way that cannot be repaired (i.e., taking a piece of it). If, the thinking goes, all ivory can be eliminated from the marketplace, the market collapses and incentives for poaching are reduced. The Fish & Wildlife Service has argued articulately that crackdowns had a positive effect on the elephant crisis of the 1980s. As an aside, that crisis did not involve the huge demand from China that now drives a significant portion of the ivory trade, but one presumes that leading by example is at least part of the goal even if the macroeconomics don’t play out as intended.
With all that said, this loan was not a proposed import for commercial purposes, it was an import for cultural exchange purposes. The relief would have entered the United States, gone on display, and returned to the United Kingdom. It almost certainly would have been granted immunity from seizure under the Immunity from Seizure Act, 22 U.S.C. § 2459, eliminating any concern it could be interfered with (and entered the market as private property as a result) before leaving the United States.
It is a curious result and one that bears watching for repetition. The new ivory policy is what it is, with good faith reasons, but this certainly seems beyond even that. Museums should anticipate and strategize for any incoming ivory loans.
