An Unkind Response to my PAS Article (LATE UPDATE)

I have just noticed that Paul Barford has produced a very long response to my article on the Portable Antiquities Scheme. Initially I was pleased that my article had gained some notice. Imagine my dismay then when Barford accuses me of producing, ‘glib spin’, bad writing, claims I’m ignorant, and even hints that I’ve committed plagiarism. And he didn’t even do me the courtesy of sending an email.

I hope there might be a serious scholarly response to the article at some point, and I look forward to reading it. At present I’m not aware of any thoughtful scholarly work (peer-reviewed for example) which criticizes the PAS. Perhaps Barford would be inclined to produce something like this? Given the tenor of his blog though, I wonder if he is capable of passing peer-review.

I don’t really have a lot to say about the points he raises, because there aren’t any intellectually honest arguments. Rather he’s displayed an unfortunate tendency to produce Rovian and Hannity-style discourse. He takes my arguments out of context, wilfully twisting them in a way which indicates an inability to conduct any kind of meaningful discourse.

To take one example, he writes:

[T]he PAS allegedly represents a policy that: “sharply contrasts with the context-focused narrative found in most culture heritage scholarship”. This gives a totally false impression of the PAS and its aims… It is all about context of the finds in its database.

Right, well here’s what the article states:

The PAS is the voluntary system created to record and document objects that are not encompassed by the Treasure Act and are unearthed legally. The PAS is a novel approach to undiscovered antiquities, which rests on a legal framework that essentially allows amateur and unprofessional digging. This policy cuts against the overriding policy choices of most nations of origin and sharply contrasts with the context-focused narrative found in most cultural heritage scholarship.

He also accuses me of stating the PAS pays finders and detectorists. No. I state very clearly “If the object is deemed treasure, the finder is entitled to a reward based on the market price of the object.” One of the main reasons I wrote the piece was to make clear that the PAS does not pay finders of non-treasure objects! Finders of treasure recieve a reward, and have since the 19th century; the PAS works in conjunction with this legal framework to encourage voluntary reporting of objects the Crown has no legal claim to.

I don’t expect everyone will agree with my perspective, but at the very least an individual who claims to be an academic would be able to respond in an honest and thoughtful way. I’d encourage Barford to adopt the perspective of Kimberley Alderman, who has recently started a very nice blog:

Here are the things I think would promote more meaningful discourse:

1. Less polarization between what have been characterized as competing “sides” of the argument.

2. Less emphasis on doctrinal positions (on both sides) and more emphasis on solving the mutual goal of cultural preservation.

3. More emphasis on what is working as opposed to what is not.

4. Less emphasis on what positions people have espoused in the past (too often used as a means to unproductively attack).

5. More precision in language used …

That’s very good advice I think. It’s a brief statement of a similar kind of argument made by Alexander Bauer recently. A. A. Bauer (2008). “New Ways of Thinking About Cultural Property,” Fordham International Law Journal 31:690-724.

I’m happy to accept legitimate criticism. Petty attacks aren’t doing anyone any favors though. Barford is not a fan of the PAS. He’s entitled to that opinion, but give me some clear reasons why the current system is harmful, and provide a better legal or policy framework. If you’ve got a better ‘mousetrap’, tell us about it — if you can do so respectfully.


I see Barford has responded here. Regrettably the newer post is only slightly less strident.

As he rightly points out, I neglected to include a link to his extended response to the article which is here. He claims to have pointed out “serious problems” with the article. I’m afraid we will have to agree to disagree on that point. I’m happy to have a spirited debate on the PAS, but mis-characterizing my position and taking statements out of context makes such a productive discussion impossible, and he has yet to correct these errors. When my first year law students make these kind of analytical mistakes its an indication of weak analysis and insufficient research.

At its core, I argue in the article that a national ownership declaration is an important legal strategy; but this declaration in isolation does not necessarily create the best cultural heritage policy. In fact there’s legal precedent which makes this very point (see US v. Johnson 720 F.Supp. 810, 811 (C.D.Cal.1989)) and the US accession to the UNESCO Convention via the CPIA takes the efforts of nations of origin into account when the CPAC considers export restriction requests.

I assume that effectively guarding every archaeological site is impossible given limited resources. Even in the US, a wealthy nation, there is widespread looting of Native American sites. A nation like Peru has even more difficulty given its developing economy and the remote location of many sites. The looting of these sites in North and South America is a travesty. This is a foudational problem with heritage policy. One potential solution is a policy framework and network of PAS-style liason officers. But that’s not to say that these states should encourage metal-detecting or the like.

Rather I think outreach and education is badly needed. Barford argues this exists in many nations of origin already. Perhaps he is right, but we are merely talking speculatively. Where is the evidence? I’d be delighted to read some thoughts on this. The PAS works in conjunction with the law, which was of course a compromise postion between heritage advocates and landowners. A very strong legal regime may in a perfect world be the best policy. But what good are they if they aren’t meaningfully enforced? These laws can be compared with abstinence only sex education or America’s ill-advised “War on Drugs”. When it comes to practice, they aren’t producing the desired results — less teen pregnancy or drug abuse for example. In the heritage context, the PAS and metal detectorists are producing contextual information. It’s a different kind of information, which we can characterize as shallow but extremely broad; rather than a thorough documentation of sites which might be narrow but very deep.

This more permissive legal regime has actually produced important contextual information, which historians, researchers and archaeologists are using to write scholarship. Research is being produced with the PAS and its database, and it is including the broader public in heritage and archaeology, which will ideally bring more attention to heritage issues generally. Did Hiram Bingham include locals in his efforts to excavate Macchu Picchu? Modern-day Peruvians think not, which has led to a host of very public disagreements between Yale and Peru.

The PAS policy unquestionably sacrifices some archaeological context, but is there any nation of origin which is able to ensure all of its sites are professionally excavated or remain untouched? Is some contextual information better than none?

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Peru to Lawyer Up?

Apparently the Peruvian government has again decided to take legal action against Yale. Peruvian state media may be planning to litigate in its ongoing effort to recover thousands of Incan relics excavated in the early part of the 20th century by Hiram Bingham. Paul Needham continues his outstanding reporting on the dispute for the Yale Daily News (BBC)(AP)(via).

Needham reports:

While Peruvian officials have threatened a lawsuit since April, Yale officials said earlier this fall that they were hopeful the parties might be able to avoid legal action. Much of this optimism was the result of a meeting in late September that included, for the first time, Jose Antonio Garcia Belaunde, the Peruvian foreign minister. Belaunde had never before been involved in the negotiations, and some at Yale saw his presence at the meeting in an optimistic light.

“The fact that the minister feels that it’s appropriate for him to intervene suggests that there is a desire to reach an understanding,” Richard Burger, the Yale archaeologist most closely associated with the artifacts, said last month. “Because if [Peruvian officials] wanted to go to court, they could have just left things as they were.”

But Belaunde’s involvement with the negotiations was brief; Peru’s new minister of labor and employment promotion, Jorge Villasante, has now been charged with overseeing the selection of a lawyer and the potential filing of a suit.

I think this is an unfortunate decision. Yale had seemingly agreed to a very fair settlement with Peru, but that tentative deal fell through. In a Memorandum of Understanding with Peru Yale had agreed to build a museum and research center, would help sponsor an international travelling exhibition and return the objects after the expiration of a new 99-year lease.

I wonder what the chances of this potential suit would be. This would seem to push the envelope for repatriation litigation . Just thinking speculatively, the statute of limitation problem would be a tricky hurdle for Peru. It could perhaps bring suit in New York and argue the limitations period did not begin to run until a demand and refusal by Yale, however one wonders if Yale could successfully defend by essentially arguing it has held the objects in a transparent way, and Peru should have long ago made its legal claim.

Or perhaps they might bring suit in a discovery rule jurisdiction, arguing the recent revelation that there are in fact 45,000 objects is a new triggering event which would make the action timely.

However even if they succeed on the limitations issue, it remains very much in question whether Bingham’s agreement gives Peru title to the objects (though apparently Bingham’s actions were controversial in Peru at the time). US courts have not always looked favorably on Peru’s vesting legislation (see Peru v. Johnson), and I’m not sure what provisions were in place when Bingham was re-discovering Machu Pichu. This has been a fascinating dispute, in chief part because Yale has seemingly been very open, and has offered a great deal to Peru. Perhaps I’m missing something here, but I wonder if Peru’s indigenous rights movement might have its priorities the wrong way around in this case.

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Profile of an Antiquities Dealer

The Associated Press has an extended profile of Leonardo Patterson. An antiquities dealer from Costa Rica who is currently being investigated by German and Spanish authorities. In April, police in Munich seized more than 1,000 objects from his warehouse.

Pictured here is Peruvian archaeologist Walter Alva. He received a catalog of Patterson’s antiquities in 1997:

[H]e saw more than 250 ancient Peruvian pieces, mostly from tombs raided in the late 1980s. There were necklaces made of gold and lapis lazuli from la Mina in northern Peru. There were copper masks and a necklace made of 30 gold spiral-shaped ornaments from Sipan, the center of the Mochica culture dating to 200 A.D.

Alva was not surprised that many of the pieces had ended up in private European collections.

“There is a very active market in the United States and Europe,” said Alva. “We have to eliminate this idea that those who collect archaeological artifacts are cultivated people.”

He asked Interpol in Lima to investigate. Interpol in turn asked a Lima court for an international arrest warrant for Patterson in 2004. Four years later, there has been no ruling, according to Interpol officials in Lima.

Patterson is accused of selling fakes and forgeries as well as looted antiquities. It seems Patterson may have been connected in some way to the looted Peruvian gold headdress which was recovered from Patterson’s lawyer’s office in 2006.

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Antiquities Seized in Peru

Authorities in Peru have seized 740 pre-Columbian antiquities which were being sold in a souvenir shop in Cuzco. The antiquities shop was located across the street from Cuzco’s Incan Museum. This would seem to be the kind of thing Peruvian officials should be monitoring, and perhaps they were. However it seems it was actually an international news agency which reportedly spotted a promotional video, and the Peruvian Foreign Affairs Ministry was notified about the objects.

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More on Yale and Peru

On Sunday, Peru’s state news agency reported that Peruvian researchers have said Yale University researchers (i.e. Hiram Bingham) took more than 40,000 objects from Machu Picchu in the early part of the last century. This, the Peruvian news agency claimed, is 10 times more than the original estimate. Reuters has a summary in English.

Hernan Garrido Lecca released the inventory results to the state news agency. A team from Peru’s National Institute of Culture traveled to Yale in March to take an inventory of the objects at the University. Part of the discrepancy here may involve how these objects are accounted. If a ceramic object is in 15 pieces for example, does it qualify as 1 object or 15? I’m not sure of the answer to that question, perhaps there is a standard in the museum community? This may account for the discrepancy, rather than any bad faith on Yale’s part.

Some may remember Yale and Peru had a tentative agreement to settle the disposition of these objects, which resulted in a Memorandum of understanding back in September. That agreement appears to have been a good bargain for both parties.

Peru would receive title to the objects, many of the research pieces would remain in Connecticut under a 99-year lease, there would be an international traveling exhibitions, and finally Yale would help build a museum and research center in Cuzco. Such an institution would seem to be badly needed, as there are indications the current museum near the Aguas Calientes train station is not fit for purpose:

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.

In February, former first lady of Peru Eliane Karp-Toledo had harsh words for the Memorandum of Understanding and for Yale University. Despite what would seem to be a very good agreement for both sides, Karp-Toledo was very critical of Yale University, and indeed Hiram Bingham III who discovered the objects. She argued the objects were only to be taken from Peru for 12 months, and that legal title to all the objects must be returned to Peru. She claimed “Yale continues to deny Peru the right to its cultural patrimony, something Peru has demanded since 1920.”

The repatriation claims are often tied to colonial mistreatment, and are often closely aligned with Indigenous-rights movements. Those may be good things, however in this case I am not sure what the current leaders of Peru would want to do differently or would seek. Yale has, it would appear, a very secure interest in the objects; and they are certainly not under any obligation to return them any time soon. By increasing the claims that Yale University has mistreated Peruvian heritage, I wonder if perhaps Peru may risk losing the bargaining chips which were gained in the 2007 MoU.

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Peru Wants a Piece of the Black Swan

Sam Jones of the Guardian had an interesting article earlier this week updating the dispute between Spain and Odyssey Marine over the enormous shipwreck known as the Black Swan. Odyssey Marine recovered a massive amount of gold off the ocean floor, which may in fact be the wreck of the Nuestra Senora de las Mercedes. The dispute is currently pending in US Federal Court in Florida; the admiralty law of salvage will most likely dictate that Odyssey Marine will at the very least get to keep a substantial portion of their haul provided the wreck was found in international waters.

Now it seems Peru has made claims:

But Madrid and Odyssey are now facing growing calls from Peru for some, or all, of the Mercedes’ cargo to be returned to the South American country.
Peruvian campaigners say that because the gold and silver coins were probably minted from metal taken without permission by the Spaniards, they belong to the modern-day country, not its former colonial master.
Last year, Peru’s production minister, Rafael Rey, said it was only “logical” that his country would seek the treasure’s return.
Blanca Alva Guerrero, director of the defence of cultural patrimony at Peru’s National Institute of Culture, said: “If we can establish that some or all of the recovered artefacts came from Peru, we are ready to reclaim them as material remnants of our past.”
She added that Peru had a legal right to recover any items deemed part of its “cultural heritage”.
Mariana Mould de Pease, a Peruvian historian who has successfully campaigned to oblige Yale University to return hundreds of artefacts taken from the Inca citadel of Machu Picchu, said that although Spain had “acted duplicitously, and – where necessary – brutally” during the colonial period, she hoped a deal could be reached. “Given the historical ties between the two countries, I think Peru should join Spain in taking part in the scientific recovery of the ship’s contents.”
She said that Italy’s recent success in securing the return of Roman items from the Metropolitan Museum of Art and the Getty Museum in the US had “already influenced countries such as Peru when it comes to taking legal action founded on cultural restitution”.
Spain, however, has so far dismissed the Peruvian claim, saying that the Mercedes was sailing under a Spanish flag and pointing out that Peru did not exist as a country in 1804.

This appears to be nothing of substance backing this up. I do not see any way in which Peru could intervene in the dispute between Spain and Odyssey Marine. Perhaps others are aware of this kind of thing working in other contexts, but as vile as the conquistadors may have been, they weren’t dealing with a legal entity or nation as they understood it. Peru did not exist when this gold was taken.
Also, many will of course note that the agreement between Yale and Peru is hardly a done deal, despite the fact its probably about as good a deal as Peru could get under the circumstances.

I’m also surprised at how the Italian repatriation successes of recent years are continuing to appear in circumstances which are wholly unrelated. The Odyssey project, as flawed as some may believe it was, appears completely legal, and is a far cry from the looting which the Italian repatriations were responding too.

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Yale and Peru, An Uneasy Relationship? (UPDATE)

There has been an increase in attention paid to the tentative agreement, not yet concluded, between Yale University and Peru over artifacts from Machu Picchu. The former first lady of Peru, Eliane Karp-Toledo had an Op-ed in the New York Times on Saturday which was a scathing criticism of Yale University.

Yale University Staff reporter Paul Needham has also done some excellent reporting on this controversy, a recent article from Feb. is here, and an earlier one in Jan. is here.

I commented on the tentative Memorandum of Understanding back in September, and on the claims for repatriation back in June.

As I understand it, the initial agreement seemed to be an outstanding agreement for all concerned. Peru would receive title to the objects, many of the research pieces would remain in Connecticut under a 99-year lease, there would be an international traveling exhibitions, and finally Yale would help build a museum and research center in Cuzco. Such an institution would seem to be badly needed, as there are indications the current museum near the Aguas Calientes train station is not fit for purpose:

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.

Despite what would seem to be a very good agreement for both sides, Karp-Toledo is very critical of Yale University, and indeed Hiram Bingham III who discovered the objects. She argues the objects were only to be taken from Peru for 12 months, and that legal title to all the objects must be returned to Peru. She claims “Yale continues to deny Peru the right to its cultural patrimony, something Peru has demanded since 1920.”

Yale University wants to keep many of the pieces which aren’t fit for museum display and study them, under a new 99-year lease. That doesn’t seem to me to be unreasonable, given Peru’s slight legal claims to the objects. It would seem that any legal claim Peru could bring for these objects has long since passed the statute of limitations. Peru has no tenable legal claim to the objects, however they do have a very powerful, even emotional ethical claim for the return of these objects. However, it seems to me that the ethical claims for return which have characterized the recent restitutions to Italy and Greece are absent in this case.

Unless I am missing something, Yale has absolutely no legal obligation to return the objects. I find it a bit puzzling that some in Peru are so critical of the potential agreement. The answer may be directly tied to notions of colonialism, past injustices, and even the current indigenous political movements there. However, the goal should be to advance the study of Peruvian heritage, to continue to publicize the site itself and encourage responsible tourism there. A frank discussion of the tangible benefits that both Yale and Peru will potentially receive is needed, however in these discussions it is often difficult to move beyond notions of identity and heritage, which often trump the more practical realities of what may be at stake.

(hat tip: Donn Zaretsky)
(photo credit)


It seems others have shared my initial reaction to Karp-Toledo’s piece. Lee Rosenbaum wonders how some of the more extreme comments made it into the piece.

Paul Needham continues his fine work on this story in the Yale Daily News and gives reaction from individuals at yale. Richard Burger, an archaeology professor at Yale called the Op-Ed “sour grapes”. It seems Helaine Klasky, Yale University spokeswoman is preparing a response. That should be interesting.

One wonders perhaps how pure Karp-Toledo’s motives may be. There is no question sites in Peru have been looted, but I don’t think Macchu Picchu is one. Is she using Hiram Bingham III as a political symbol, which generates public interest? I see a corollary to what Alex Salmond has done in making ill-conceived calls for return of objects from the British Museum. I do not see what grounds Peruvians may have to question this accord, which seems to be an extremely generous offer from Yale. Perhaps they should learn from a fellow nation of origin, Italy, which seems to have embraced the idea that it needs these cultural institutions in Europe and North America. Peruvians may regret that it was an American archaeologist who took objects from Macchu Picchu, but as Burger said “Yale would do well in a trial.”

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