In cases of looted, stolen and smuggled cultural goods always the laws of the 'consumer' countries prevail, and most unfortunately not the laws of the victim countries. There is no doubt at all that the Ka-nefer-nefer mask was stolen. The Saint Louis Art Museum is not a member of ICOM [International Council of Museums] and never should be as well.

If nothing else, this case identifies a lack of understanding in the processes available to those wishing to recover their stolen cultural property. We may not like the laws or legal processes of a country, but they are what you have to work with and if the wrong option is taken in the recovery process and you fail to meet the required deadlines then your case will fail, as it has in this case. 

Having followed the twists and turns of this case and actually obtained a copy of the records that exist in Egypt showing where the mask was at specific dates it is clear to me that the wrong process was adopted. Rather than sue for the return of the mask, Egypt should have resorted to the same process that put Fred Schultz in prison for contravening US property law. This would have resulted in the FBI actually having to investigate the conduct of those involved in the sale of the mask to the museum and the provenance that was provided in support of it. 

If these investigations had produced evidence that criminal offences had been committed within the jurisdiction of the US courts then those responsible may well have faced a trial under the criminal process, and had the provenance as supplied to the museum been proven to be bogus then it is doubtful that the museum would, or could have resisted a subsequent claim for the return of the mask. 

Having worked with the Egyptian authorities on the successful prosecution of Tokeley Parry, Fred Schultz and others, which established the effectiveness of prosecuting under national property laws rather than cultural property laws, it is disappointing to find that the many lessons of that case appear to have been forgotten so quickly.

While I am not an attorney, I've been successful in all my investigations and have investigated hundreds of similar cases involving  international  property theft and smuggling. Generally, a U.S.  Federal Inter-pleader action, which is a civil, not criminal procedure, occurs AFTER the federal criminal case has been proven that property is in fact stolen and has a nexus to interstate-international transportation or communication (Title 18 United States Code Section 2314, 2315.)

  

Dick you will remember that our collaboration (under a Mutual Legal Assistance Treaty Request)  the theft of the Teniers painting by a U.S. citizen was just that.  The painting was proven stolen at federal criminal  trial in the U.S. -- even though it was stolen from a London dealer, in London.  That court trial, which led to the guilty plea of the thief of the action of transporting property internationally, determined that the painting was stolen.  The court then acknowledged the ownership of the property by the London dealer. 

In my opinion, a case which FIRST proved that the mask was illegally imported to the United States, rather than relying on the logical presumption, especially when there is sufficient extant evidence to do so, would have prevailed.  

I agree with Dick: Consulting with field experts such as he and myself and a dozen others with well known, actual convictions with restitution in similar criminal cases can avoid such "procedural issues" -- such as the "untested legal theory" (that I interpret as the presumption of stolen and smuggled, rather than the presentation of evidence) as expressed by Judge Murphy.

Provenance:1951/1952 -Mohammed Zakaria Goneim, excavated at Saqqara, Egypt [1]
by 1952 - Unknown Dealer, Brussels, Belgium [2]
- early 1960sKaloterna Collection [3]
early 1960s -Private Collection, Switzerland, acquired from Kaloterna collection [4]
by 1997 - 1998Phoenix Art, S.A. (Hicham Aboutaam), Geneva, Switzerland, purchased from private collection [5]
1998/03/30 -Saint Louis Art Museum, purchased from Phoenix Ancient Art, S.A. [6]
Notes:[1] Excavated by Mohammed Zakaria Goneim, Keeper of the Antiquities of Saqqara, at Saqqara, during his first season (1951-1952) at the site [Goneim, Mohammed Zakaria,"Excavations at Saqqara; Horus Sekhem-Khet, the Unfinished Step Pyramid at Saqqara." Vol. 1. Cairo: Imprimerie de L'Institut Français D'Archéologie Orientale, 1957].
A letter from a scholar, dated December 12, 1999, indicates that the other objects from the Saqqara excavation group were displayed together in the Cairo Museum, suggesting that they were put on display right after Goneim's excavation. The scholar suggests that the mask was never displayed with the other excavated objects and was probably awarded to the excavator himself. This would correspond with its appearance on the European art market soon after its excavation [SLAM document files].
[2] In a letter dated February 11, 1997, Charly Mathez confirms that he saw the mask in a gallery in Brussels in 1952. According to a letter dated October 5, 1999, he did not remember the name of the gallery [SLAM document files].
[3] In a letter dated March 19, 1998, Hicham Aboutaam indicated that an anonymous Swiss collector acquired the mask from the Kaloterna (possibly Kaliterna) family. In a letter of July 2, 1997, addressed to Hicham Aboutaam, the Swiss collector stated that this acquisition took place in the early 1960s [SLAM document files]. The name "Kaloterna" may be a misspelling of the common Croatian name "Kaliterna." The Swiss collector also had an address in Croatia, and it is possible that the collector became acquainted with the Kaloterna (or Kaliterna) family there. 
[4] See note [3]. The Swiss collector requested anonymity.
[5] The Swiss collector's letter of July 2, 1997 confirms the sale of the mask to Aboutaam [SLAM document files]. Aboutaam also states that the mask was in the United States from 1995 until 1997, possibly indicating that it was in the possession of the New York branch of Phoenix Ancient Art, S.A. during that time [letter, September 23, 1997, SLAM document files]. 
[6] Invoice to the Saint Louis Art Museum dated March 12, 1998 [SLAM document files]. Minutes of the Collections Committee of the Board of Trustees, Saint Louis Art Museum, March 18, 1998.

For the Aboutaams, whose father started the gallery in Beirut in the 1960s, the makeover will require not only overhauling some of its business practices, but also restoring a public image dogged by legal and ethical questions. In 2004, after an investigation by the United States Bureau of Immigration and Customs Enforcement, Hicham Aboutaam pleaded guilty to a misdemeanor in connection with his importing and selling for $950,000 a silver ceremonial drinking vessel that at the time was alleged to be part of the plundered Iranian Western Cave Treasure. He paid a $5,000 fine. That same year, an Egyptian court sentenced Ali Aboutaam in absentia to 15 years in prison after he was accused of smuggling artifacts from Egypt to Switzerland. The charges against him were later dropped by the Egyptian court due to a lack of evidence. Such run-ins with the law have made big museums nervous even when nothing may appear untoward. In 2001, the Kimball Art Museum in Fort Worth returned a 2600 B.C. Sumerian statue it had bought from the brothers for $2.7 million for a refund. Hicham Aboutaam said that questions surrounding the taxes on his parents’ estate unraveled the deal.

When angry collectors started suing Knoedler & Company for selling dozens of multimillion-dollar forgeries, the gallery’s former president, Ann Freedman, insisted that she and her colleagues had had no reason to think that any of the paintings were counterfeit. “If Ann Freedman had any questions about these works, she and her husband would not have invested hundreds of thousands of dollars in them,” her lawyer, Nicholas A. Gravante Jr., said of the paintings attributed to modern masters like Robert Motherwell, Mark Rothko and Jackson Pollock. Now, newly released documents in a continuing civil case show that at least one of the works bought in 2000 by Ms. Freedman herself contained a prominent clue that something was awry. The artist’s signature was spelled incorrectly: Pollok instead of Pollock.

Ms. Straus is an accomplished professional with a successful career in providing solutions on art and insurance matters, globally. She is widely recognized for her expertise in insurance and risk transfer needs of museums and cultural institutions, auction houses, galleries and private collectors. She has broad proficiency in legal issues relating to confiscation, repatriation and provenance.... For over 30 years, Dorit Straus has been an important contributor to the fine art insurance industry. She has authored commentary on the implications of art theft on the insurance industry and on insuring art. She currently serves on the faculty of ARCA (the Association for Research on Crimes Against Art) teaching a course on art crime and insurance in Amelia, Italy.