The clandestine excavation of "cultural objects" to feed the international art market has become an indisputable problem. However, the scale of the problem—and potential solutions—are hotly contested. In the United States, the debate over how best to protect these objects has come to focus on the relationship between the National Stolen Property Act (NSPA) and the "found-in-the-ground" laws that foreign nations employ to claim them. The NSPA criminalizes trafficking in stolen property; found-in-the-ground laws declare national ownership of cultural objects located within a nation’s territory, forbid their export, or both. Yet because the NSPA criminalizes trafficking in stolen property without defining the term "stolen," it is not inevitable that U.S. courts should hold that found-in-the-ground laws can provide the basis for a cognizable NSPA claim.
In what is known as "McClain doctrine," U.S. courts since the 1970s have applied the NSPA to foreign found-in-the-ground claims. However, recent events—in the courts and in the news—indicate that the time has come to reexamine the legitimacy and utility of McClain doctrine. Despite the doctrine’s many critics, this Comment argues that it remains sound as a matter of both law and policy. By giving foreign found-in-the-ground laws a limited domestic impact, McClain doctrine helps to prevent looting internationally without placing an unacceptable burden on the cultural objects trade. Moreover, the doctrine helps to resolve a tension inherent in U.S. law—which provides foreign cultural objects with only limited protections but places greater restrictions on the trade in objects of domestic origin.