By Steven Joseph
Since the very first hunter-gatherers stopped being nomadic and settled in fertile areas, humans have been collectors. Collectors of food. Collectors of traditions. Collectors of knowledge about our surroundings. As technology has advanced, the things we have collected as a society have gone from needs to simply things that intrigue us. Whether it be coins, stamps, memorabilia, cultural artifacts, or jewelry, almost everyone of us has some form of a collection that is uniquely special and often shared within a peer community of like-minded collectors. And now we’re all in danger of the U.S. government breaking down our doors, and taking it back at the bequest of foreign countries. Loopholes in antiquated laws and aggressive interpretation of the laws meant originally and specifically for the seizure of narcotics assets are being used to seize collectibles from law-abiding, taxpaying citizens.
Of course this scenario sounds extreme! It sounds like gestapo tactics that could only happen in another country. But, that’s exactly how avid amateur fossil collector Dr. Robert Lavinsky is describing it. See, Rob is under siege from the Customs Office due to their newly found powers after being merged into Homeland Security. Rob has a fine private collection of fossils, all obtained legally at auctions or on the open and public market at trade shows in Denver and Tucson [see the inset at left of the actual auction description from which he purchased the T-Rex skull]. But the issue isn’t how Rob came into possession of the dinosaur bones in the USA, or even how they entered the USA, so much as the fossils’ origins.
Not Just a One-Time Incidence
Rob isn’t alone in his plight. “Dr. Jim Godwin, a 74-year-old anesthesiologist and fossil collector in Texas, was pulled from a surgery two years ago. Seven SWAT agents with guns showed up at his hospital to threaten him with charges in front of his patients and staff, and escorted him forcibly home to seize his skull (one like mine but smaller), although his other fossils (like mine) remain under threat still,” said Lavinsky.
According to a former head of natural history at Chait Auction House and Bonhams Auction House and other authorities, other collectors in the same position include the well-known fossils owned by Phil Mickelson, Nicholas Cage, and Leonardo DiCaprio. Who is next? Our national museums?
Lavinsky’s multimillion dollar collection contains exciting specimens that span the globe, from Montana to Mongolia. And rather than selfishly hoard these bones from the general public, he has graciously allowed them to be displayed in his local museums at times, and had already promised them to a permanent home in the Dallas Museum of Nature and Science. The fossils were a hobby for him to share with his children, and he is part of a larger community of non-scientific fossil collectors who share their treasures with academics such as the well-known Dr. Robert Bakker, the curator of the Beijing Museum, and other academics from museums around the world.
Lavinsky is not a fossil-dealer or amateur paleontologist by trade, but his interest in science led him to start collecting fossils when his children were born as something to share with them and leave as a legacy. “Nothing I have is a secret,” he says. And his collection is “not about the money. I have never done this for business.”
But a portion of Lavinsky’s collection includes dinosaur bones that were discovered and dug up in Mongolia. Mongolia has a strict policy today about the exportation of anything removed from the ground. However, fossils for open sale in the USA have been sold for decades here. And recently, the current Mongolian government has suddenly called for the immediate seizure and return of these fossils, despite their public sale at U.S. auction houses (which had their own legal research with an opposite stance on the matter) for decades, and their open sale on the markets under previous governments in the past. They did so in an unusual and
aggressive manner, possible only under a “creative” interpretation of a 1934 U.S. Customs law, in tandem with the Homeland Security enforcement for the Customs office.
An Absurd Loophole
Under a new loophole in the U.S. Customs laws, a country can report these items as “stolen” and the U.S. government can then choose to honor that claim without the burden of proof, and initiate a seizure. Homeland Security has cited the National Stolen Property Act and sent letters to Rob and other collectors requesting they voluntarily relinquish their fossils. The letter also warns that “any other attempt to conceal, sell, transfer, or otherwise dispose of the stolen artifacts may be a violation of U.S. law.” “Suddenly dealers and collectors are running scared. The amateur market is completely drying up. People are afraid to sell or display anything, regardless of provenance such as an auction house, and this hurts everybody including the scientists and the museums,” Rob laments.
Lavinsky’s plight first began when he received a strongly-worded letter sent to his home from the U.S. Attorney General. In a speech to the public after Rob’s (and DiCaprio’s and Cage’s) letter was sent, the USAG called private collectors “Rapists of the Earth. They (the collectors) hide them (the fossils) from science, and we are losing out because of this.” ¹ The USAG then made remarks stating how honored he was to repatriate the people of Mongolia with previously seized fossils. “The people of Mongolia can now restore them and display them…(they are) astonishing symbols of Mongolian national pride.” ¹ But without the work and money of private collectors and the expeditions their purchases finance, these fossils would still be in Mongolia. In the ground. Or, even worse, the fossils will weather away to dust and no one will ever see or study them.
When recalling the USAG’s words, more or less echoed in newspaper articles from promotional events where U.S. officials give American citizens’ items to foreign governments, Lavinsky laughs with cynicism and disgust. “There aren’t enough scientifically-funded digs by professional paleontologists to possibly discover everything out there. The scientific community needs amateur collectors to help get these fossils out of the ground. The truly injured party here is the American taxpayer, paying for Homeland Security to spend tens of millions of dollars chasing fossils which were sold in the open market in the U.S. under existing U.S. law to fair buyers.” Lavinsky is referring to the legal battle he is now ensnared in over ownership of his fossils,
a topic that quickly makes his blood boil.
“So here’s the rub. I can’t even sue for ownership of the fossil. The fossil itself is the defendant in the suit. Eventually I can legally intervene as a ‘friend of the fossil,’ but currently this is a case of the U.S. (funded by the taxpayer) versus the fossil (whose defense is also funded by the taxpayer). And if the U.S. wins, the fossil is returned to Mongolia where U.S.
citizens would never be able to see it.”
The controversy has Lavinsky questioning not just the art of collecting, but the entire government he supports. “This whole thing could have been civil,” he said. “If the government had just come to me and said, ‘Hey, here’s the money you paid for the fossil back, it was allegedly exported illegally, and we apologize for the inconvenience but another country wants it back and we will mediate a fair compensation for repatriation as with any other art field,’ I would have given up immediately. But now I’m embroiled in what could be a multimillion dollar lawsuit against the government who has an unlimited budget and seems to be acting to enforce foreign laws (from the 1920s) on
U.S. Attorneys Citing Mongolian Law (Not U.S. Law)
In arguing against the claimants’ motions to dismiss these seizures, the government’s lawyers liken their case to that of a previously allowed seizure in which customs forms were doctored and the item was smuggled out of the country. In that case, the laws violated were not of the country of origin, but of the United States. The lawyers then repeatedly cite the 1924 constitution as well as the 2002 Criminal Code of the Law of Mongolia to assert their legal right to reclaim the fossils. But this isn’t a case of Mongolia versus the United States in some neutral location which recognizes every country’s individual laws. The United States government is citing Mongolian laws to validate taking these fossils back from U.S. citizens who bought in the fair and open marketplace within the USA.
The Mongolian constitutional law upon which the case is based is itself antiquated and being manipulated by the USAG as a flimsy attempt at setting a dangerous legal precedent. The law was enacted in 1924 when Mongolia was raided by the Soviet nations.² The Chinese Civil War left Mongolian borders unprotected and the U.S.S.R. invaded and pillaged private property. This is the equivalent of using the Second Amendment (the Right to Bear Arms, as at the time the United States population needed to arm itself against the British) as an
excuse to hoard chemical weapons. The same sort of “doctrinal novelty (sic)” has been chastised by the Second Circuit Court of Appeals after it was used in other unusual legal procedures by the same attorney general’s office pursuing the dinosaur fossils.3
Even Dr. Mark Norell of the American Museum NYC, one of the paleontologists most hostile to collectors, stated in an article, “It’s legal [to sell them] because we don’t recognize these laws.”4
The big picture issue at hand is that this is not simply about fossils, but potentially anything of value that at some point came from the earth or from another country and was once traded openly in the USA. Combined with Homeland Security’s newfound power, and under the new interpretation of the laws here (primarily a customs law dating to 1934 called the “customs carve out” provision),5 what is to stop the African nations from passing a law about the removal of gold or diamonds from their borders, then instituting a search-and-seizure for all jewelry in the U.S. that contains such things from before they specifically banned them? And a search-and-seizure backed by, and paid for by, the U.S. government? How about the tribal masks displayed in many homes as decorative art? Or the Egyptian artifacts gracing the walls of many of our museums? “This is retroactive regulation,” Lavinsky said, “They’ve dropped a nuclear bomb on a hobby that’s passionate about educating and sharing the beauty and inspiration of science with our country and the world.” The U.S. has started another war, and it’s a war that “no one is winning.” Least of all, the taxpayer who funds these witch hunts. And there will be more if this isnot challenged.
Photos above: According to authorities, other collectors in the same predicament as Dr. Lavinsky include Phil Mickelson, Nicholas Cage and Leonardo DiCaprio. Who is next? Our
national museums? (Photo credits left to right: L.E. Mormile, Anton Ivanov, Helga Esteb)
1Prepared Remarks for U.S. Attorney Preet Bharara Dinosaur Repatriation Ceremony, July 10, 2014
2Case 1:12-cv-04760-PKC Document 12 Filed 08/17/12
3International NY Times edition Dec 21-24, 2015
4Fossils National Geographic News June 25, 2004
5Case 1:12-cv-04760-PKC Document 16 Filed 09/04/12