Murals of Teotihuacán – Fine Arts Museums of San Francisco and National Institute of Anthropology and History

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Citation: Caroline Renold, Alessandro Chechi, Marc-André Renold, “Case Murals of Teotihuacán – Fine Arts Museums of San Francisco and National Institute of Anthropology and History,” Platform ArThemis (http://unige.ch/art-adr), Art-Law Centre, University of Geneva.

In 1978, the Fine Arts Museums of San Francisco became the owner of a number of murals from the world-famous Aztec site of Teotihuacán (Mexico). The Mexican Government failed in its attempts to obtain the return of these wall paintings through a court action in the United States. Nevertheless, representatives of the Fine Arts Museums met with representatives of the Mexican National Institute of Anthropology and History to negotiate a solution for the conservation and restitution of the murals. A joint custody agreement was reached in 1984.

I. Chronology

Pre 1970 restitution claims

• 1960s: Harold Wagner bought in Mexico a number of murals from the world-famous Aztec site of Teotihuacán and brought them into the United States.
• 1971: The United States and Mexico concluded a Treaty of Cooperation on the restitution of cultural objects.[1]
• 1976: Harold Wagner passed away. His will contained a bequest of the murals to the Fine Arts Museums of San Francisco (hereafter “the Museum”),[2] under the condition that they pay for the cost of his estate.
• July 1978: Aware of the legal and ethical problems surrounding the ownership of the murals, the Museum contacted the Mexican Consul General in San Francisco. The objective was to verify whether it was possible to negotiate some sort of shared ownership or partial repatriation. The Consul General put them in contact with the National Institute of Anthropology and History (INAH). Subsequently, pursuant to the Treaty of Cooperation of 1971, the Mexican government formally requested the United States Attorney General to block the probation of Wagner’s will and to order the return of the murals to Mexico. The Federal District Court rejected the restitution claim on the grounds that the Treaty of Cooperation was not retroactive. Consequently, the will was probated and the murals became the property of the City and County of San Francisco under the jurisdiction of the Museum.[3]
• November 1978: Negotiations started between the Museum and the INAH.
• May 1979: The Museum and the INAH arrived at a ten points draft agreement concerning, inter alia, the conservation of the murals and the return of some of them to Mexico.
• February 1980: García Cantú, Director General of INAH, sent a letter to the Museum with a new proposed agreement. It stated that Mexico wanted the return of all murals.
• December 1981: A new round of negotiations between the INAH and the Museum lead to the conclusion of an agreement in four points whereby the Museum agreed, inter alia, to “return to Mexico a minimum of fifty percent of the murals to create a positive moral climate and precedent”.
• February 1986: About seventy percent of the murals returned to Mexico.[4]

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II. Dispute Resolution Process

Judicial claim – Judicial decision – Negotiation – Settlement agreement

• The Mexican Government first tried to obtain the return of the mural fragments through litigation in accordance with the Treaty of Cooperation of 1971. Under Article 11, paragraph 3, of the Treaty, the US Attorney General has the power to file a civil action in US district courts on behalf of Mexico. However, the Attorney General was unable to find any evidence that the murals entered into the United States after 1972, that is, after the entry into force of the Treaty. Therefore, the legal action failed. This obliged the Mexican Government to negotiate with the Museum.
• Negotiations began in July 1978, that is, when Wagner’s will had not yet been probated and the murals were not yet acquired by the Museum. This clearly demonstrates that the Museum decided to negotiate with INAH on a purely voluntary basis.
• Personnel at the Museum cited several reasons for the decision to negotiate. First, they felt that the ethical aspects at stake exceeded the complicated legal dispute. Second, they felt that they had a moral duty to find an acceptable compromise to ensure the best preservation of the murals. Third, the Museum accepted the Mexican claim that the murals were of cultural significance to Mexico. Fourth, the Museum was not specialized in Mexican or Pre-Columbian art, so the Mexicans could provide the Museum with important assistance in the conservation of the mural fragments.[5]
• The result of the negotiation was an original and mutually beneficial joint custody agreement.

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III. Legal Issues

Enforcement of foreign law – Illicit excavation – Illicit exportation – Ownership

• According to the Mexican law, all immovable archaeological monuments belong to the State, including the elements of such monuments that have been dismembered. Therefore, the murals were Mexican national property. As such, they could not be transferred abroad without an export permit.[6] However, it appears that Wagner never obtained an export permit.[7]
• Under US law, the will of Harold Wagner was valid and the Museum became the rightful owner of the murals. Therefore, even if it wanted to, the Museum was not in the position to return the murals to Mexico or to grant Mexico ownership of the murals. Under US law, the Museum is a public agency and the murals were its property. Thus, giving the mural fragments to Mexico would have constituted giving away public property, which is illegal.[8]

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IV. Adopted Solution

Cultural cooperation – Co-ownership

• The dispute over the Teotihuacán Murals was settled through an agreement providing for joint custody. More particularly, the negotiated resolution provided that at least half of the murals would be returned to the Mexican National Museum; that the Mexican National Museum and the Fine Arts Museums would share the costs of conservation; and that the murals would be exhibited at both institutions with credits noting each other’s participation. In sum, the dispute was solved without the conflicting ownership claims being resolved.

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V. Comment

• The case of the Teotihuacán Murals illustrates how complicated the return of works of art can become when contradictory national laws and international principles are at stake.
• It can be argued that negotiation succeeded because it was carried out outside the political process by museums professionals, that is, people primarily concerned with the proper conservation of the murals. The result might have been quite different if negotiation was directed by the Mexican and US Governments.[9]
• The collaboration between the Museum and INAH has led to joint exhibitions, loans, as well as educational and research projects. Therefore, the case of the Teotihuacan Murals had a huge impact on the perspective of San Francisco museums regarding the acquisition of pre-Columbian artwork as well as on the place of these museums in international relations and on the international art market.[10]

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VI. Sources

a. Bibliography

• Berrin, Kathleen. “San Francisco, le Mexique et les peintures murales de Teotihuacán”. Museum International 235 (2007): 8-20. Accessed June 23, 2011, http://portal.unesco.org/culture/en/files/34885/11974725625235FR.pdf/235FR.pdf.
• Merryman, John Henry, Albert E. Elsen and Stephen K Urice. Law Ethics and the Visual Arts. The Netherland: Kluwer Law, 2007, 5^th edition.
• Schroeder Cordero, Francisco Arturo. “Legislación protectora de los monumentos y zonas de monumentos en México.” Accessed June 29, 2011, http://www.bibliojuridica.org/libros/2/700/43.pdf.
• Seligman, Thomas K. “The Murals of Teotihuacán: A Case Study of Negotiated Restitution.” In The Ethics of Collecting Cultural Property, edited by Phyllis Mauch Messenger, 73-84. New Mexico: University of New Mexico Press, 1999, 2^nd edition.

b. Legislation

• Mexico, Ley sobre protección y conservación de monumentos arqueológicos e históricas, poblaciones tipicas y lugares de belleza natural, January 9, 1934, 82 D. O. J25.
• Treaty of Cooperation between the United States of America and the United Mexican States Providing for the Recovery and Return of Stolen Archaeological, Historical, and Cultural Properties, 22 U.S.T.S. 494, T.I.A.S. n. 7088, 1971.
• Mexico, Ley federal sobre monumentos y zonas arqueológicos, artísticos e históricas, May 6, 1972, D.O. May 6, 1972.
• U.S. Regulation of Importation of Pre-Columbian Monumental or Architectural Sculpture or Murals, October 27, 1972, Public Law n. 92-587, 19 U.S.C. §§ 2091ff, 1972.

c. Documents

• Agreement Relating to the Return of the Teotihuacán Murals. Reproduced in Law Ethics and the Visual Arts, Merryman, John Henry, Elsen, Albert E. and Urice. Stephen K, 368-369. The Netherland: Kluwer Law, 2007, 5^th edition.

d. Media

• Ron Russel. “How an Eccentric Architect with a Penchant for Pre-Columbian Relics Rocked the Antiquities World and Became the de Young Museum’s Most Mysterious Donor.” San Francisco Weekly, 30 August 2006. Accessed June 23, 2011, http://www.sfweekly.com/content/printVersion/321933/.

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[1] Treaty of Cooperation between the United States of America and the United Mexican States Providing for the Recovery and Return of Stolen Archaeological, Historical, and Cultural Properties, 22 March 1971. As a result, the United States adopted the Regulation of Importation of Pre-Columbian Monumental or Architectural Sculpture or Murals (27 October 1972, Public Law n. 92-587, 19 U.S.C. §§ 2091 ff., 1972), whereas Mexico adopted the Ley federal sobre monumentos y zonas arqueológicos, artísticos et históricas (6 May 1972, D.O. 6 May 1972, replacing the 1934 Ley federal).

[2] The Fine Arts Museums of San Francisco was created in 1972 by the merger of two separate city-owned museums, the M.H. De Young Memorial Museum and the California Palace of the Legion of Honour.

[3] The other legatees did not contest the bequest to the Museum. Essentially, they believed that they were in a better position to resolve the legal and ethical issues involved that were private individuals. Thomas K. Seligman, “The Murals of Teotihuacán: A Case Study of Negotiated Restitution”, in The Ethics of Collecting Cultural Property, ed. Phyllis Mauch Messenger (New Mexico: University of New Mexico Press, 1999, 2^nd edition), 78.

[4] Seligman, 73-81. See also Ron Russel, “How an Eccentric Architect with a Penchant for Pre-Columbian Relics Rocked the Antiquities World and Became the de Young Museum’s Most Mysterious Donor”, San Francisco Weekly, 30 August 2006, accessed June 23, 2011, http://www.sfweekly.com/content/printVersion/321933/.

[5] John Henry Merryman, Albert E. Elsen and Stephen K. Urice, Law, Ethics and the Visual Arts (The Netherlands: Kluwer Law International, 2007, 5^th edition), 367.

[6] Ley sobre protección y conservación de monumentos arqueológicos e históricas, poblaciones tipicas y lugares de belleza natural (1934), quoted in Francisco Arturo Schroeder Cordero, “Legislación protectora de los monumentos y zonas de monumentos en México”, accessed 29 June 2011, http://www.bibliojuridica.org/libros/2/700/43.pdf, 672.

[7] Merryman, Elsen and Urice, 366.

[8] Ibid., 367.

[9] Ibid., 368.

[10] Kathleen Berrin, “San Francisco, le Mexique et les peintures murales de Teotihuacán”, Museum International 235 (2007), accessed June 23, 2011, http://portal.unesco.org/culture/en/files/34885/11974725625235FR.pdf/235FR.pdf,16-20.