Update on Yale’s Cultural Heritage Lawsuits

 The Yale Daily News updates two disputes involving Yale University.  The first is a dispute involving the Night Cafe by Vincent Van Gogh:

 Pierre Konowaloff, the descendant of a Russian aristocrat who once owned the painting, claims it is rightfully his because the Soviet government expropriated it from his family in 1918.
The Soviet government seized “The Night Café” from Konowaloff’s great-grandfather Ivan Morozov as part of the government’s mass nationalization of private property in the early 20th century. Konowaloff claims this constitutes a theft, delegitimizing any subsequent sale or purchase. Therefore, Konowaloff claims, Stephen Clark 1903, who bequeathed the painting to Yale in 1960, never actually owned it.
Clark was a trustee of the Museum of Modern Art and the Metropolitan Museum of Art. In the early 1930s, he acquired the painting from the Knoedler Gallery in New York City, which had purchased it from the Matthiesen Gallery in Berlin, Germany; it was the Matthiesen Gallery that originally bought the painting from the Soviets.
Yale first responded to Konowaloff’s claims of ownership in May 2009, filing a lawsuit to assert the University’s ownership. Konowaloff responded with a counterclaim in March 2009, requesting the return of the painting and over $75,000 in damages.
Yale’s Oct. 5 motion argues that “it is well-established that a foreign nation’s taking of its own national’s property within its own borders does not violate international law,” and that the Soviet government’s original acquisition — and also Yale’s subsequent acquisition — of the painting was legal.
The motion also argues that Konowaloff’s claim came too late, since the statute of limitations for a dispute of ownership of this nature would have expired in the 1960s, three years after Yale publicized its acquisition of the painting.

The second is a dispute involving objects removed by Hiram Bingham from Machu Picchu:

 

In the case of the Inca artifacts, Yale is arguing it first gained control of the items when they arrived in New Haven in the 1920s, describing them in several Yale publications as part of the museum’s permanent collection.
“Decade after decade, Peru was content to let Yale hold itself out to the world as the owner of the objects,” the Oct. 16 motion reads. “[Peru] disregarded the reasonable time limits imposed by law for bringing its claims.”

  1. Nora Caplan-Bricker, Yale moves to drop museum suits, Yale Daily News, October 27, 2009.
Questions or Comments? Email me at derek.fincham@gmail.com

Roger Atwood on the "Mass Pillage" in Iraq

Roger Atwood has an Op-Ed in yesterday’s New York Times arguing Iraq could learn from the approach of Peru and Mali in protecting their archaeological resources.  Both nations have used civilian patrols to protect sites, and apprehend looters:

This kind of grassroots organizing — where local officials, police officers and archaeologists join forces with local residents — is the best way to combat looting and protect sites from being swallowed up by the illicit antiquities trade. A similar strategy has proved effective in Mali, a country that has little in common with Peru besides a rich archaeological heritage. It would work in Iraq and elsewhere.

Surprisingly, though, relatively few governments have focused on getting rural people involved in protecting threatened sites. Most spend their energy pressing museums in the United States or Europe to repatriate looted artifacts, instead of focusing on safeguarding the archaeological riches still in the ground. Repatriation is a valuable goal, but an immense amount of historical information is lost whenever looting occurs and sites are damaged, even if the objects are later recovered. The government’s time would be better spent expanding the patrols to prevent looting in the first place.

Questions or Comments? Email me at derek.fincham@gmail.com

"Peru is rightful owner of artifacts"

So argues former First-Lady of Peru Eliane Karp-Toledo in an Op-Ed today in the Miami Herald (for a brief discussion of another Op-Ed in the NY Times, see here). She discusses the ongoing dispute between Yale and Peru over objects taken from Peru by Hiram Bingham, and effectively communicates Peru’s position—and only their position.  Though I think it is reasonable to criticize some of the actions of Yale University since they have held the objects, Karp-Toledo does her argument a disservice I think by ignoring some very real and well-founded differences of opinion between Yale and Peru.

For example, she argues “Many years of frustrated negotiations, and Yale’s presentation of an insensitive ‘Memorandum of Understanding’ in 2007, finally led the Republic of Peru to file a lawsuit against Yale in the District Court for Washington, D.C., in December 2008.”  Yet I’m not really sure how that memorandum was “insensitive”; nor does Karp-Toledo really tell us why.  That agreement, now apparently abandoned, aimed at creating a kind of lease which would have created a collaborative relationship between Yale and Peru.  It would have been similar in form perhaps to the agreements Italy has been promulgating with many institutions forced to return looted antiquities.  Peru would have received title to all the objects, with many remaining in Connecticut. There would have been an international traveling exhibition, and proceeds would help build a much-needed new museum and research center in Cuzco. Yale also would have provided funds to establish a scholarly exchange program. As Yale president Richard C. Levin said at the time, “We aim to create a new model for resolving competing interests in cultural property,… This can best be achieved by building a collaborative relationship — one which involves scholars and researchers from Yale and Peru — that serves science and human understanding.”  I’m afraid I don’t see how this arrangement was “insensitive”. 

File:MuseoSicán lou.jpgAnother point of contention is where these objects may be stored if they are returned.  Though she points out the Royal Tombs Museum of Sipán (pictured here), she has little to say about the current exhibition near Machu Picchu at Aguas Calientes.  An expanded center such as the one Yale had offered would seem to be badly needed, as there are indications the current museum near the Aguas Calientes train station is not fit for purpose, according to Arthur Lubow in a long piece in the NY Times Magazine:

The doors were open to the air, which was moist from the nearby river, and the sole official was a caretaker who sold tickets and then exited the building. On display in the attractive (if unguarded) museum are the finds that Peruvian archaeologists have made at Machu Picchu in the years since Bingham’s excavations.

 I think it is worth asking at this point, how much of the ongoing dispute is a product of the effort to continue the Indigenous rights movement in Peru, irrespective of whether it is actually creating a better place to display these objects, and display them to the public—whether that is in the US or Peru?  I think that collaboration is a far better model, but I’m not sure Karp-Toedo has provided and argument which would call for zero collaboration.  Instead she seems eager to punish Yale and Hiram Bingham for taking Peru’s heritage.  A claim I think which is not supported by the facts as we know them.  Though there are certainly indications that these objects should have been returned to Peru long ago, they were not, perhaps because of intervening events (America’s involvement in WWI may have provided a distraction), neglect, negligence or even bad faith.  
Questions or Comments? Email me at derek.fincham@gmail.com

Spain Prevails For Now

“It is this comity of interests and mutual respect among nations . . . that warrants granting Spain’s motions to vacate the Mercedes‘s arrest and to dismiss Odyssey’s amended complaint”. So concludes US Magistrate Judge Mark Pizzo yesterday in Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel.

Odyssey Marine has lost in its bid to petition a US court for ownership of the coins, and Spain has prevailed—for now—in its suit to regain half a million gold and silver coins from Odyssey Marine Exploration which recovered them from a wreck in the Atlantic Ocean. The recovery of the coins, thought to be worth as much as $500 million was announced, though the location of the wreck, and information about the wreck was kept secret. In response Spain filed suit, and seized some of Odyssey’s other vessels. UNESCO condemned the recovery, and much has been written and discussed about this recovery, considered perhaps the richest haul ever recovered from a wreck.

In the judgment which I’ve embedded below, the District Court held it lacked jurisdiction over the dispute and the property should be returned to Spain. Though Odyssey Marine attempted to hide the true identity of the wreck, initially code-naming the wreck the Black Swan, the court held that there was enough information to conclude the coins came from the “Nuestra Senora de las Mercedes”, a warship which was carrying treasure back from Peru when it was sunk by the British off the Spanish coast in 1804. Spain, soon declared war on Great Britain, a point which may be lost in all this talk of the treasure. This treasure was an important piece of heritage, and all the talk of Odyssey’s share prices, and the rich treasure haul shouldn’t distract us from why these objects are protected, and why Spain fought so vigorously to have them declared the owner.

So these coins may be destined for Spain, finally, even though these coins were initially taken from Peru, which also asserted an interest. This has been a protracted dispute, and one that may indeed continue at the appellate level. It will be interesting as well to see how much continued involvement Peru has with the appeals process, or if Spain and Peru can come to an agreement about what can or should be done with the objects.

Spain’s Culture Minister Angeles Gonzalez-Sinde is quoted by the BBC, calling the decision “a very important precedent for all future undersea discoveries”. Gregg Stemm, CEO of Odyssey Marine said “I’m confident that ultimately the judge or the appellate court will see the legal and evidentiary flaws in Spain’s claim, and we’ll be back to argue the merits of the case.”

But for now, US Magistrate Judge Mark Pizzo has the final word, concluding his recommendation, “More than two hundred years have passed since the Mercedes exploded. Her place of rest and all those who perished with her that fateful day remained undisturbed for centuries – until recently. International law recognizes the solemnity of their memorial, and Spain’s sovereign interests in preserving it.”

For more on the company this older piece from Voice of America is pretty interesting. This suit is really about the continued viability of this kind of business, and the perils of doing so without the support of organizations like UNESCO or other nations of origin:

Questions or Comments? Email me at derek.fincham@gmail.com

"Peru v. Yale: A Battle Rages Over Machu Picchu"

I’m quoted in David Glenn’s article for the Chronicle of Higher Education on the dispute between Yale University and Peru over artifacts taken from in and around Machu Picchu by Hiram Bingham between 1911 and 1916. The piece is behind their subscription wall, but it really is worth the effort to get your hands on a copy. It’s a good overview of the dispute, with a timeline and an overview of the parties’ public statemetns which gives us an idea of the competing legal claims.

The dispute draws some of the important ramifications the dispute has for repatriations generally. We are all eagerly waiting for Yale’s responses on the merits. At this point the parties are still disputing the proper federal court for the dispute. If and when the dispute reaches some of those important substantive points, whether the action was timely will likely be a prominent issue, as I speculate in the piece.

One of the important potential ramifications of this dispute may be whether nations of origin have the right to try to reach back and challenge some of these past agreements.

Questions or Comments? Email me at derek.fincham@gmail.com

334 Antiquities Returned to Peru… but what result?

U.S. Immigration and Customs Enforcement and Customs and Border Protection have released a statement announcing the return of 334 objects to the Peruvian government.

Of particular interest is how the objects were seized:

On March 1, 2007, a CBP officer at Houston’s Bush Intercontinental Airport referred Lanas-Ugaz, who had just arrived from Lima, Peru, for a secondary examination. During CBP’s inspection of Lanas-Ugaz’s luggage, officers noted several items in bubble wrap, including a clay figurine of a man in a chair and clay bowls. CBP officers held the five items as possible pre-Columbian Peruvian artifacts, which are protected under the Convention on Cultural Property Implementation Act. CBP contacted ICE, which had the artifacts evaluated by archeologists from the American Museum of Natural History. Museum archaeologists confirmed that the items are authentic pre-Columbian and have significant cultural value.
Four days later, ICE, CBP and Laredo Police Department officers executed a federal search warrant at Lanas-Ugaz’s home in Laredo. They discovered many additional authentic artifacts, which included: textiles, ceramic figures, wood sculptures, and metal and stone art. All the items had been illegally exported from Peru into the United States. Lanas-Ugaz, a U.S. citizen, was arrested at his home without incident.

 Lanas-Ugaz reached a plea agreement:

Lanas-Ugaz pleaded guilty May 16, 2007, to one count of knowingly and fraudulently importing into the United States merchandise that is against the law to sell, and receiving stolen goods. On Sept. 13, 2007, he was sentenced to three years probation and a $2,000 fine; he also paid $100 to a crime victims’ fund.

That’s a pretty slight sentence for a crime which carries a maximum punishment of 5 years imprisonment and a $250,000 fine.   One thing the press release does not discuss is why the sentence was so slight, and if Lanas-Ugaz is continuing to trade in antiquities. 

According to the Department of Justice press release in 2007, Lanas-Ugaz operated a website, perularedo.com, which offers Pre-Columbian artifacts for sale.  A simple google search of “perularedo” reveals there is an ebay seller, by that name selling antiquities from Peru, the last sale appeared to be as recently as September 2008. 

One wonders if this antiquities dealer has decided to cooperate?  Has he left the antiquities trade for good?  Is he continuing to sell antiquities under a different name? 

Questions or Comments? Email me at derek.fincham@gmail.com

Peru Files Suit Against Yale

Last Friday, in the United States District Court for the District of Columbia, Peru quietly filed suit against Yale University seeking the return of a number of objects from in and around Machu Picchu. The objects were excavated and removed to the United States by Hiram Bingam in the early part of the 20th Century. This is the culmination of a long process between Peru and Yale, in which the parties had seemingly agreed to a beneficial compromise for both. The suit will of course be interesting to unfold, as it would seem to push the boundaries for a court resolution of a dispute over objects which were removed from Peru in the waning years of the imperial age.

The suit was expected, as Peru had made the tentative decision last month to bring suit. This after what had appeared to be a happy resolution to the dispute, with Yale offering a very substantial settlement including an international traveling exhibition and the construction of a new museum and research center in Peru in exchange for a new 99-year lease on the objects.

That deal fell through, and now Peru has decided to seek redress in Federal Court.

I’ve had a chance to quickly read over the complaint and I see a number of interesting issues:

  • The degree to which the 1970 UNESCO Convention may apply — as an international instrument and policy imperative.
  • If there will be further development of the requirements neeeded to establish national ownership over an object. The complaint cites an 1893 Decree which prohibited removal of objects absent special permission from the government. A potential issue may be what kind of special permission –if any — Hiram Bingham had from Peruvian authorities at the time.
  • Also, there will likely be an interesting back and forth over whether Peru’s suit is timely. The complaint argues that there has only recently been a demand and refusal of the objects, though there appears to be the possibility of a strong laches defense for Yale given the time which has passed since the objects left Peru. Yale may have a strong defense by arguing it has held the objects in a transparent way, and Peru has impinged Yale’s rights by waiting so long to bring a claim.
  • Finally, there may be interesting conflicts of law issues which arise.

A win for Peru in court may set a precedent for other future claims from the imperial age, and may extend further the window for nations of origin to seek the repatriation and restitution of objects. This would be a powerful legal option going forward, in which the pendulum has seemingly already swung back to favor nations of origin already.

However even if the court dispute is unsuccessful, Peru may still have a good outcome if they can sway public opinion at home or abroad. I have more questions than answers at this point. I wonder to what extent Peru may be seeking a public shaming of Yale in the hopes of punishing them or forcing them to apologize for taking these objects away. It should be noted that the objects themselves are primarily interesting for their intellectual value. They are not prized for their inherent beauty or value. Their primary purpose would seem to be to assist in research and other pursuits. One wonders if Peru would be able to perform this research function as well as Yale University? Or, if those intellectual pursuits might have been best advanced if Peru had been able to reach an agreement with Yale which would have resulted in the construction of a research center in Peru. Isn’t the ‘star’ of the ancient city the well-preserved ruins themselves?

The initial complaint is here ($).

Hat Tip: Peter Tompa.

Questions or Comments? Email me at derek.fincham@gmail.com