Peruvian Grave-Opening and the Law in the Spanish Americas, 1532–1850

In 1647, the Spanish jurist Juan de Solórzano y Pereira explored a challenging extension of Iberian law to the Indies. “In the Indies, there are treasures that the Indians don’t want to uncover,” none more defended than those buried in the “huacas, or tombs” of native Andean lords like the Incas. “Is it licit to dig them up”? This paper explores Solórzano’s affirmative reply, showing how the case of post-1532 Peru shaped imperial law throughout the Indies, as well as the republican legal responses of Spanish American Independence. In the case of Peru, scholars approach the new republic’s monument-protecting laws as failed rejections of “colonial” tomb-raiding (huaqueo). Instead, this paper shows how Peruvian republicans critiqued “colonial” laws for inhibiting grave-opening, standing in the way of a “natural” and “historical” resource’s development by citizens and the state. That rejection nonetheless re-interpreted colonial logics of sovereignty, resource management, and patrimony, requiring attention to how Solórzano and his predecessors deployed Old World law to liberate New World “treasure” and the dead. It also requires attention to the legal deliberations that followed: whether an expanding State’s claim to serve a larger public good permitted the colonization or vacation of the property and mortuary rights of the heirs of past legal regimes, in the name of knowledge and development. This approach suggests an approach to the history of archaeology and patrimony in Latin America and the world that locates informed, ethnographically-nuanced, and “beneficent” law at the heart of grave-openings’ endeavors from the sixteenth century on.