Peru-Yale Machu Picchu Controversy Part 4

Elections could avert Peru’s lawsuit

Source: Yale Daily News by Andrew Mangino, Staff Reporter

April 12, 2006

As this week’s heated Peruvian presidential election enters a runoff, the
government of Peru has not yet filed a lawsuit against Yale for the return of
precious Machu Picchu artifacts excavated in the 1910s, casting doubt on the
future of the dispute.

Nearly a century has passed since Yale historian Hiram Bingham III’s
discovery of the artifacts that redefined universal understanding of the Incan
culture, but archeological experts say the historical record is murky, citing
contracts that seem to confirm Peru’s right to ask for Bingham’s findings to be
returned on the one hand and Yale’s longstanding custodianship of the artifacts
on the other hand. Whether or not Peru will follow through with its promise
to sue Yale may hinge on the incoming government’s attitudes toward national
identity, regional experts said, though there are still a number of complicated
legal, ethical and historical questions that must still be answered by both
parties…

“We have not been served with a lawsuit,” Yale head counsel Dorothy
Robinson said on Tuesday. “We remain hopeful that we can achieve an amicable
resolution with the Peruvian government.”

Current Peruvian President Alejandro Toledo — the country’s first
indigenous leader, whose wife was one of the leading advocates of the showdown with
Yale — did not run for re-election. Yet Peru has already hired a top counsel
of former President Bill Clinton LAW ’73 to represent their case, indicating
their intention to sue in spite of the hefty legal fees and changing regime.
With Toledo leaving, the outcome of the runoff between Ollanta Humala, a
rising nationalist leader, and either pro-business Lourdes Flores or left-wing
ex-President Alan Garcia, will significantly impact Peruvian policy. Although
the Peru-Yale conflict has not been a focus of recent candidate debates,
Humala is widely expected to strengthen Peru’s conviction for the return of the
artifacts, while the position of other candidates on the matter is uncertain.

“My expectation is that a totally different government is going to come
in, one that will see that it’s in their interest to work with Yale in some
sort of collaborative effort and that Yale and Peru … can join in some sort of
educational initiative and work in creating some sort of museum together,” said
Richard Burger, a curator of the Yale Peabody Museum and the researcher who,
along with his wife, resurrected research on Bingham’s excavations. “It’s too
early to tell what the situation is going to be like in Peru in a few years,
but I’m very optimistic.”

On Tuesday, a top Peruvian official, who asked not to be named, denied
that elections would have any bearing on the lawsuit. He said it is essentially
a “state policy” to recover the artifacts from Yale, which will not change
with the election of a new leader.

“We don’t have any specific dates, but it will be [filed] soon,” he said,
citing the substantial time required to properly prepare a lawsuit.
Still, Burger said he is still skeptical that the suit will ever be filed
in state court.

“Lawsuits are expensive, and my understanding of it is that Peru would
have a very weak case,” he said, noting that there is a distinction between
cases of looting and legal excavation. “The trouble is when you want to go back
into an earlier time when there is an earlier set of values and practices.”
But critics of the Yale position cite the pair of contracts signed by the
then-president of Peru and Bingham on behalf of the university in 1912 and
1916.

In the 1912 agreement obtained by the News, one term of the contract
provides for Peru’s reserved right to have artifacts “that might be extracted and
have been extracted” to be returned to Peru at the government’s request. The
1916 agreement stipulates, “Yale University and the National Geographic Society
pledge to return, in the term of 18 months from today, the artifacts whose
export has been authorized.”

A letter written by Bingham and obtained by the News, dated Nov. 28,
1916, indicated that even he believed Peru’s legal prerogative was to have all the
excavations returned.

“They do not belong to us, but to the Peruvian government, who allowed us
to take them out of the country on condition that they be returned in 18
months,” Bingham wrote.

Christopher Heaney ’03, who received a Fulbright Scholarship to write a
book on the Yale-Peru conflict and has lived in Peru since August 2005, said
there is a degree of historical judgment that must be used in evaluating the
contracts and Peru’s alleged request several years after the excavations to
return all artifacts.

“From the agreements at the time, it’s pretty clear that both Bingham and
Peru, at least when these agreements were made, understood that the pieces
did belong to Peru and that Peru could ask for them back,” he said. “Did Bingham
misread the letter from Peru? Did he not see the word 1912?”

Barbara Shailor, Yale’s deputy provost for the arts, said that although
she believes Yale has a right to the artifacts — some Yale officials have
cited a potentially overlapping civil code or the statute of limitations — it is
important to note the extent to which the artifacts have added to knowledge of
Peru across the world.

“They’ve been brilliantly preserved — preservation and conservation is
something that Yale has done a supremely fine job about — and certainly the
scholarly investigation of the material has been really first-rate,” she said.
Yale President Richard Levin, who said he has met with Peruvian
Ambassador Eduardo Ferrero, said Yale seeks a compromise with Peru that provides both
Peruvians and Yale with “sufficient representation” of the Bingham collection
to mount first-class exhibits in both places.

“Our position is that the law actually would support our claim to
ownership, but in a way, that’s a technical issue,” Levin said. “We feel the best
solution for the long-term stewardship of these object is to work out a
cooperative arrangement.”

Hugh Thomson, a well-known British explorer of Machu Picchu, said
Burger’s research at Yale has “made up for” the Peruvian case that not much work was
done on the artifacts for years. But Thomson said the issue also has cultural
and political significance.

“It’s very much a political issue, but not necessarily in a dishonorable
way,” he said. “Peru is trying to redefine itself by its Incan past, and Machu
Picchu is really the center of the Incan past in some ways. Naturally, it’s a
hugely emotional subject.”

But Roger Atwood, author of a book on antiquity looting, said that while
there may be compelling political and cultural demands for the return of the
artifacts, Yale should also consider returning the artifacts for the somewhat
“colonial” nature of their acquisition and the original legal contracts signed.
“I don’t see that the [Peru] case would work if it came to court, but I
like to think it suggests ethically that Yale would have some responsibility
for handing these pieces back,” he said.

Thomson said he hopes the current conflict will resolve itself with a
long-awaited solution taking into account the interests of both sides.
“It’s quite a complex issue,” he said. “I would hope that there could be
some sort of partnership between Yale and Peru, where artifacts could be
displayed potentially at both places, as well as around the world.”