(CN) - An ancient Egyptian mummy mask will remain in the St. Louis Art Museum because the U.S. government cannot prove the mask was stolen from Egypt when it went missing 40 years ago, the 8th Circuit ruled.
The Mask of Ka-Nefer-Nefer is a 3,200-year-old Egyptian mummy mask of an Egyptian noblewoman that was discovered in 1952 in Saqqara, Egypt.
In a 1973 inventory of ancient artifacts, the mask was discovered missing.
It was rediscovered in 1998, when the St. Louis Art Museum purchased it from Phoenix Ancient Art of New York and Geneva, an antiquities seller. The museum has refused the Egyptian government's repeated requests to return the mask.
The U.S. government stepped in and filed a forfeiture action against the mask, claiming that "because the mask was stolen, it could not have been lawfully exported from Egypt or lawfully imported into the United States."
But a federal judge ruled for the museum, unpersuaded that "because something went missing from one party in 1973 and turned up with another party in 1998," it must have been stolen or smuggled into the country.
On appeal, the government argued that the lower court erred by dismissing its complaint without giving it leave to first amend its pleading.
But the 8th Circuit disagreed.
"The government in the proposed amended complaint continued to plead a claim that did not require proof the mask was 'introduced into the United States contrary to law,' only proof that, at some time in the distant past, it was 'stolen,'" Judge James Loken wrote for the three-judge panel.
In addition, the government had plenty of time to amend its pleading before the dismissal, but chose not to.
"The government knew many months prior to the order of dismissal of the possible need to amend its pleading and elected to 'stand or fall' on its untested legal theory. The government then spent another three months after the order of dismissal was entered urging the court to reconsider its interpretation of the statute before finally deciding it would attempt to plead around the interpretive problem, rather than appeal this legal issue," Loken wrote.
Judge Diana Murphy concurred, but wrote separately to express "what the record in this case reveals about the illicit trade in antiquities."
Murphy wrote: "While this case turns on a procedural issue, courts are bound to recognize that the illicit sale of antiquities poses a continuing threat to the preservation of the world's international cultural heritage. Museums and other participants in the international market for art and antiquities need to exercise caution and care in their dealings in order to protect this heritage and to understand that the United States might ultimately be able to recover such purchases."