This morning in a comment on my blog Brien Foerster accused me of libeling him for, essentially, taking him at his word. (The comment came from an email address associated with Foerster’s business, so I believe he was in fact the author.) In reporting that the Purdue Rare Isotope Measurement Laboratory refused to conduct destructive testing on a sample of rock allegedly from Puma Punku, I said that Foerster had chipped fragments from some of the stones at the site and had removed them from Bolivia. Foerster accused me of making false and libelous statements:
No artifacts were chipped from, nor were they taken from the Puma Punku site, as in, within the fenced area. Your allegations are both false and libelous...
In my first post on the subject, I suggested that he had more likely picked up broken fragments from the ground, and I regret not including that same caveat in my second post, though I did link to the initial discussion in my follow-up post. I have corrected the second post to acknowledge this error.
Brien Foerster is a public figure since he is an author, television personality, and advocate for the existence of a lost civilization. As such, for me to libel him I must not only be wrong but have shown a reckless disregard for the truth. The fact that I examined his project and compared it to a wide range of cultural heritage laws demonstrates that I was hardly reckless in applying his project’s own words and statements to the applicable laws.
On the Indiegogo.com page devoted to raising money for the failed project, David Swenson and Brien Foerster wrote the following: “This project will be carried out to support the work of Brien Foerster, of Cusco [sic] Peru, who has been involved in the study of ancient people and their associated megalithic buildings. Samples of andesite stone from Tiwanaku and Puma Punku that have come from the megaliths will be shipped from Peru.”
On the site’s “updates” page, David Swenson provided photographs of Brien Foerster at Tiwanaku and Puma Punku examining the “flat surface” of the stones, and he then stated that he had three samples including one of the flat surfaces that had been removed from Bolivia to Peru for shipment to the United States, and he posted a request from George Bayer suggesting that Foerster obtain an additional sample of polished rock for further testing. Since Foerster was resident in Peru and the only figure involved in the shipments to be in Peru, the obvious implication is that he was the party sending the samples.
I inferred from such discussions and statements that Foerster had obtained the samples himself directly from the megaliths at the Bolivian site. Foerster now suggests that it is libelous to make this inference from his fundraising website’s published material. The only way to collect samples, of course, would be to remove them from the rock intentionally or to collect samples that broke off naturally or through earlier vandalism, unless he purchased them from a dealer, which is a whole different level of problematic.
No matter how they were obtained, Foerster and Swenson claim that the rock samples are in fact part of the megaliths in the Tiwanaku area. Therefore they fall under the U.S.-Bolivian bilateral agreement on the importation of pre-Columbian artifacts, which has been in effect since 1989 and currently is renewed through 2016. It states, in part:
Further, it was found that the archaeological evidence necessary to interpret the early history of Bolivian culture is in jeopardy from pillage. The pillage is widespread, on-going, and destroying the archaeological record of Bolivia. […] The restricted archaeological materials range in date from approximately 10,000 B.C. to A.D. 1532, and include objects of ceramic, textile, featherwork, metals, stone, shell, bone, wood and basketry; as well as human remains. […] Bolivian objects of types described in the Designated List may enter the U.S. only if they have an export permit issued by the Bolivian government, or documentation that they left Bolivia prior to the effective date of the restriction: December 7, 2001.
Megalithic fragments from Tiwanaku would prima facie fall under the pre-1532 stonework restrictions. I suppose it is possible that Foerster has been sitting on the samples since before 2001, but he would have needed to provide that documentation to the U.S. State Department in order to import the objects. Bolivia, however, has laws dating back decades that restrict export, and the country does not typically issue export permits to amateur researchers. Peru and Bolivia have a separate agreement with each other and Peru also with the United States, and he did not indicate that he followed either of these export requirements either. The agreement with Peru, enacted in 1997 and renewed in 2012, forbids the importation into the U.S. of pre-Columbian objects from Peru without an export permit. (Note: It also explicitly forbids the export of deformed or elongated skulls or parts thereof.)
Instead, Foerster claims that he did not break any Bolivian or international law because he obtained the rock samples from “outside the fenced area” at the Tiwanaku archaeological site. This admission confirms that Foerster takes responsibility for the collection of the fragments. Pursuant to the U.S.-Bolivian bilateral agreement, such rocks are pre-Columbian artifacts subject to import restrictions no matter whether they were found inside or outside the fence surrounding the main archaeological site.
I can’t claim to be a lawyer, and it’s possible that Foerster followed the law and legally exported the items. But he hasn’t provided any evidence that this is the case, and PRIME did not receive any documentation to this effect either. Given all of the documentation I did find from Bolivian, Peruvian, and American treaties and laws, I fail to see what other conclusion I could have reached.
But if Foerster would like to pursue a libel claim against me, he had better start by showing the export permits or the documentation that his samples were removed from the site in accordance with Bolivian law and imported into the United States in accordance with U.S. law.
I am an author and researcher focusing on pop culture, science, and history. Bylines: New Republic, Slate, etc. There's more about me in the About Jason tab.
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