Property Claims Cultural Peoples' Indigenous · 2019. 8. 2. · ThiS is a FM Blank Page. ... ILO...

Karolina Kuprecht

Indigenous Peoples' Cultural Property ClaimsRepatriation and Beyond

Indigenous Peoples’ Cultural Property Claims

ThiS is a FM Blank Page

Karolina Kuprecht

Indigenous Peoples’Cultural Property Claims

Repatriation and Beyond

Karolina KuprechtFaculty of LawUniversity of LucerneLucerneSwitzerland

ISBN 978-3-319-01654-2 ISBN 978-3-319-01655-9 (eBook)DOI 10.1007/978-3-319-01655-9Springer Cham Heidelberg New York Dordrecht London

Library of Congress Control Number: 2013954594

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Preface and Acknowledgements

This book is the outcome of a multi-year journey that started at the University of

California Los Angeles (UCLA) in 1999. Inspired by Professor Kurt Siehr and

supervised by Professor Carole Goldberg, I first approached the question of Native

American cultural property claims with a case study regarding the rights to a Lakota

ghost dance shirt and the skull of an Arikara Indian, which are both in the

possession of the North America Native Museum in Zurich.

Today, I am happy to present a work that applies a more abstract methodology

and a broader perspective on international cultural property repatriation claims of

indigenous peoples. This enabled me to extend the evaluation of the legal bases and

to work out some general principles and suggestions as to how the international

community and European states could better deal with indigenous peoples’ cultural

property repatriation claims. I hope that the insights will contribute to a positive

development of research and practice in cultural property law.

This work is dedicated to the indigenous peoples. The multilayered meanings

and purposes of their cultural objects in an indigenous context not only formed the

grounds of this research; they equally influenced my thoughts and perceptions and

fundamentally challenged my understanding of law. I am grateful for the lessons

learned that allowed me to work on building bridges between indigenous and

western world views.

My deepest thanks go to my parents for their steady backing and love throughout

the research process. Several other persons shared the living with and working on

this book with me. The most trustful and highly qualified support, however, came

Benno Widmer. Thank you very much.

Professionally, I would like to acknowledge and thank Professor Christoph

Graber. This work formed part of his research project ‘International trade in

indigenous cultural heritage: Legal and policy issues’ at the i-call research centre

of the University of Lucerne. In the realm of this project funded by the Swiss

National Science Foundation, I encountered an inspiring scientific exchange, an

excellent working environment, and an awesome team of colleagues. Jessica Lai,

Angela Hefti, Martin Korrodi, Andrea Kerekes, Monika Guggenbuhl, and

Antoinette Maget Dominice all contributed in one way or another to this work.

v

Liz Obee edited the English language, and Steven Howe helped with some final

linguistic revisions. Further, I would like to mention the many valuable inputs and

constant motivation from the esteemed professors and colleagues who initiated and

participated in the seminars and conferences of Kunst & Recht, IFKUR, the Centre

du Droit de l’Art, and the Forschungsgesellschaft Kunst und Recht. Many thanks to

you all. And finally, I thank Brigitte Reschke and Anand Venkatachalam and their

German and Indian teams, who realised the publication of this book.

Luzerne, Switzerland, 2013 Karolina Kuprecht

vi Preface and Acknowledgements

Abbreviations

ARPA United States Archaeological Resources Protection Act

ATADA Antique Tribal Art Dealers Association

BIA United States Bureau of Indian Affairs

CCPR International Covenant on Civil and Political Rights

CESCR International Covenant on Economic, Social and Cultural

Rights

CPEIA Canadian Cultural Property Export and Import Act

CPTA Swiss Federal Act on the International Transfer of Cultural

Property

FPIC Free, prior and informed consent

GAO Report United States Government Accountability Office Report to

Congressional Requesters of July 2010

ICOM International Council of Museums

ICOM Code of

Ethics

Code of Ethics of Museums issued by the International

Council of Museums

IGCs Intergovernmental Committees on Intellectual Property

and Genetic Resource, Traditional Knowledge and

Folklore

ILA International Law Association

ILO International Labour Organization

ILO Convention 107 ILO Convention No. 107 concerning the Protection and

Integration of Indigenous and Other Tribal and Semi-

Tribal Populations in Independent Countries

ILO Convention 169 ILO Convention No. 169 concerning Indigenous and

Tribal Peoples in Independent Countries

IRA United States Indian Reorganization Act

Nagoya Protocol Nagoya Protocol on Access to Genetic Resources and the

Fair and Equitable Sharing of Benefits Arising from their

Utilization to the Convention on Biological Diversity

NAGPRA United States Native American Graves Protection and

Repatriation Act

vii

NGO Non-governmental organisation

NHM London Natural History Museum

NMAI United States National Museum of the American Indian

OFA United States Office of Federal Acknowledgement within

the Department of the Interior

SPIL Swiss Private International Law Act of 198.

TAC Tasmanian Aboriginal Centre

TCE Traditional cultural expressions

TK Traditional knowledge

UCLA University of California Los Angeles

UDHR Universal Declaration of Human Rights

UK United Kingdom

UN United Nations

UN Working Group United Nations Working Group on Indigenous Populations

UNDRIP United Nations Declaration on the Rights of Indigenous

Peoples

UNESCO United Nations Educational, Scientific and Cultural

Organization

UNESCO

Convention 1970

UNESCO Convention on the Means of Prohibiting and

Preventing the Illicit Import, Export and Transfer of

Ownership of Cultural Property

UNESCO

Convention 2003

UNESCO Convention for the Safeguarding of the

Intangible Cultural Heritage

UNESCO

Convention 2005

UNESCO Convention on the Protection and Promotion of

the Diversity of Cultural Expressions

UNIDROIT

Convention 1995

UNIDROIT Convention on Stolen or Illegally Exported

Cultural Objects

UNPFII United Nations Permanent Forum on Indigenous Issues

WIPO World Intellectual Property Organization

viii Abbreviations

Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2 Facts, Method, and Basic Concepts . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2.1 The Factual Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

2.1.1 The One-Way Flow of Indigenous Cultural Property . . . . . 5

2.1.2 Indigenous Cultural Property Takings . . . . . . . . . . . . . . . . 7

2.2 Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2.2.1 The Problem of Legal Pluralism . . . . . . . . . . . . . . . . . . . . 17

2.2.2 The Necessity to Choose . . . . . . . . . . . . . . . . . . . . . . . . . 18

2.2.3 Legal Pluralism as a Method . . . . . . . . . . . . . . . . . . . . . . 20

2.3 Basic Concepts and Challenges . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2.3.1 Indigenous Peoples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

2.3.2 Indigenous Cultural Property . . . . . . . . . . . . . . . . . . . . . . 39

2.3.3 Indigenous vs. Western World Views . . . . . . . . . . . . . . . . 46

3 National Cultural Property Repatriation Claims

of the Native Americans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

3.1 The Legal Approach in the United States . . . . . . . . . . . . . . . . . . . 55

3.1.1 NAGPRA and Its Concept of Cultural Affiliation . . . . . . . 55

3.1.2 NAGPRA and Human Rights Law . . . . . . . . . . . . . . . . . . 59

3.1.3 NAGPRA and Property Law . . . . . . . . . . . . . . . . . . . . . . 62

3.2 Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

3.3 NAGPRA from an International Perspective . . . . . . . . . . . . . . . . 68

3.3.1 Can Cultural Affiliation Serve as a Standard Beyond United

States’ Law? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

3.3.2 Factors to be Considered when Implementing Cultural

Affiliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

3.3.3 Limitations to be Considered when Implementing Cultural

Affiliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

3.4 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

ix

4 International Cultural Property Repatriation Claims

of Indigenous Peoples . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

4.1 International Human Rights Law . . . . . . . . . . . . . . . . . . . . . . . . . 75

4.1.1 UNDRIP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

4.1.2 Collective Human Rights in Binding International Law . . . 78

4.1.3 International Customary Law . . . . . . . . . . . . . . . . . . . . . . 86

4.1.4 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

4.2 Guiding Approaches Beyond Human Rights Law . . . . . . . . . . . . . 92

4.2.1 International and National Law . . . . . . . . . . . . . . . . . . . . 92

4.2.2 Transnational Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

4.2.3 Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

5 Requirements and Objectives for Appropriate Solutions . . . . . . . . . 157

5.1 Participation of Indigenous Peoples . . . . . . . . . . . . . . . . . . . . . . . 157

5.1.1 A Way to Bridge Different World Views . . . . . . . . . . . . . 157

5.1.2 Participation of Indigenous Peoples in General . . . . . . . . . 158

5.1.3 Participation of Indigenous Peoples and Governance . . . . . 159

5.1.4 Free Prior Informed Consent (FPIC) and Consultation

or Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160

5.1.5 Participation and Indigenous Peoples’ Cultural Property

Repatriation Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

5.1.6 Difficulties with Indigenous Peoples’ Participation

in Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162

5.1.7 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163

5.2 Consideration of Indigenous Customs and Customary Law . . . . . . 164

5.2.1 Sui Generis Systems . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

5.2.2 Collision Norms and Interfaces . . . . . . . . . . . . . . . . . . . . 168

5.2.3 Tribal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

5.2.4 Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

5.3 Repatriation? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173

5.3.1 Arguments for Repatriation . . . . . . . . . . . . . . . . . . . . . . . 174

5.3.2 Arguments against Repatriation . . . . . . . . . . . . . . . . . . . . 180

5.3.3 A Right to Repatriation and Beyond . . . . . . . . . . . . . . . . . 183

6 Summarising Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

Table of Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193

Table of International Conventions and Declarations . . . . . . . . . . . . . . 197

Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233

x Contents

Chapter 1

Introduction

Indigenous peoples share a common claim for repatriation of their cultural property

worldwide. This became obvious in 1993, with the proclamation of the United

Nations (UN) International Year for the World’s Indigenous Peoples. Nine Maori

tribes convened the First International Conference on the Cultural and Intellectual

Property Rights of Indigenous Peoples. Over 150 indigenous delegates from

14 countries attended, including indigenous representatives from Japan, Australia,

the Cook Islands, Fiji, India, Panama, Peru, the Philippines, Surinam, the United

States, and New Zealand. The Conference met over 6 days and passed the Mataatua

Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples.1

The recommendations of the Declaration stipulate:

2.12 All human remains and burial objects of indigenous peoples held by museums and

other institutions must be returned to their traditional areas in a culturally appropriate

manner.

2.13 Museums and other institutions must provide, to the country and indigenous peoples

concerned, an inventory of any indigenous cultural objects still held in their

possession.

2.14 Indigenous cultural objects held in museums and other institutions must be offered

back to their traditional owners.

The Declaration clearly manifests the significance of cultural property and the

repatriation of cultural property to indigenous peoples worldwide. The viewpoint

flows from a common understanding that cultural property forms an important part

of indigenous peoples’ religious and traditional life cycle and that repatriation is

ultimately of great importance to indigenous peoples’ spiritual world and existence.

Dale Anne Sherman, repatriation coordinator of the Yurok tribe of northern

California, describes this connection as follows2:

1Mataatua Declaration on Cultural and Intellectual Property Rights (Whakatana, 12–18 June

1993). On the Declaration, see H.M Mead, ‘Mataatua Declaration and the case of the carved

meeting house Mataatua’ (1995) U.B.C. Law Review, Special edition, pp. 69–75.2 Dale Anne Sherman, cited by Ferdinand Protzman, ‘Justice delayed’, ARTnews (1998), at p. 138.

K. Kuprecht, Indigenous Peoples’ Cultural Property Claims,DOI 10.1007/978-3-319-01655-9_1, © Springer International Publishing Switzerland 2014

1

I believe there is power in our sacred treasures, like utensils used to cook in our ceremonies.

It’s a power that kept us alive despite the government’s genocide policy toward native

people, and the disease, alcoholism, and poverty that afflict us. My fervent hope is that

when this power comes home, we’ll be able to anchor ourselves.

The indigenous peoples’ repatriation movement has lasted for several decades

now. Even though many repatriation claims, especially at an international level,

actually fail, the activities have not ceased. Many indigenous rights activists and

organisations, scientists, museums, and governments support the claims. Repatri-

ation has even become a topic that is taught in schools.3 Beyond such activism,

there smoulder silent grievances. For over 50 years, the indigenous peoples of the

Alutiiq village of Larsen Bay, Kodiak Island in Alaska, for example, expressed

anger and resentment against an ‘archaeologist’ who excavated one of their burial

areas before they dared to file a repatriation claim against the Smithsonian Institu-

tion in Washington, D.C., the possessor of the excavations.4

Indigenous peoples’ repatriation claims share similarities worldwide and go way

beyond usual property restitution claims. They are an attempt to redress past

injustice, they imply the search for proper treatment of indigenous peoples and

their cultural objects, they contribute to indigenous peoples’ cultural survival and

revival, and they thus ultimately require the support and protection of a culturally

diverse world. A pendulum seems to be forcefully pushing towards the rebalancing

of an ill-fitting status quo of indigenous peoples’ cultural property holdings.

Against this background, this book focuses on the question of how the law is

responding to indigenous peoples’ cultural property repatriation claims and what

would be necessary for appropriate legal solutions. Thereby, it intends to contribute

to a new wave of scholarship, which tries to look past accusation, and construc-

tively considers indigenous peoples’ historic shock of colonisation and collective

memory of wounds.5 Such an approach requires analysis of indigenous views and

proposals with an open mind and forbids a blind application of the law. At the same

time, however, the epistemological roots inevitably cling to a non-indigenous

perspective and a western tradition of law.6 Voices that fundamentally question

the systems and structures of law and unhinge western methodology by generally

3 Institute on Mesoamerican History and Culture, University of Oregon-Eugene, ‘Quest for the

Maya Codex. Repatriation of Cultural Objects’ (2008), available at http://www.lakelandschools.

us/lh/bgriffin/Library/mesoam.htm.4 Gordon Pullar, ‘The Qikertarmiut and the scientist: Fifty years of clashing world views’ (1995)

U.B.C. Law Review, Special edition, pp. 119–135, at p. 123.5 For such scholarship, see, for example, Christoph B. Graber and Mira Burri-Nenova (eds),

Intellectual property and traditional cultural expressions in a digital environment, CheltenhamUK and Northampton MA: Edward Elgar, 2008, and Michael F. Brown’s endorsement quote on

the jacket cover.6 On the term ‘western’, see infra Sect. 2.3.3.

2 1 Introduction

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disqualifying scientific knowledge as imperialistic7 overlook that the law may also

serve as an important tool to respond to indigenous peoples’ claims.

Following this introductory chapter, I will start this work in Chap. 2 by depicting

the problem and factual background on the basis of some general observations and

case studies. A detailed outline of the applied methodologies will follow,

explaining how the research field of this work is tackled and narrowed in order to

find a way through the great amount of relevant laws, normative orders, and

theories. A third section of Chap. 2 will evaluate the basic concepts and challenges

that demarcate indigenous peoples’ cultural property claims: indigenous peoples,

indigenous cultural property, and indigenous world views.

Chapter 3 looks at how the United States regulates national cultural property

repatriation claims of the Native Americans. Its approach has a unique legislative

character and displays an array of possibilities as to how indigenous peoples’

cultural property repatriation claims may be resolved within and beyond property

and human rights laws. The United States’ legislation placed a strong focus on

repatriation but developed at the same time new concepts of importance when

dealing with indigenous peoples’ cultural property claims irrespective of

repatriation.

Chapter 4 will assess international cultural property repatriation claims of

indigenous peoples. The analysis will first focus on international human rights

provisions that reflect an international acknowledgement of indigenous peoples

and their cultural property claims. The legal activities in this field are proof of a new

‘cultural indigenism’, which should be recognised as a third pillar of interest in

international cultural property law. The second section of Chap. 4 will explore the

guiding approaches for international repatriation claims of indigenous peoples

beyond human rights law. It starts with international and national laws, followed

by transnational law and procedural solution approaches.

Against the background of the gained insights, Chap. 5 will finally establish

three basic requirements and objectives that should be respected in order to reach

appropriate and sustainable solutions for international repatriation claims of indig-

enous peoples.

7 Linda T. Smith, Decolonizing methodologies: Research and indigenous peoples, London: ZedBooks, 2006; Norman K. Denzin, et al. (eds), Handbook of critical and indigenous methodologies,Los Angeles: SAGE, 2008; and Laurelyn Whitt, Science, colonialism, and indigenous peoples:The cultural politics of law and knowledge, Cambridge: Cambridge University Press, 2009.

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Chapter 2

Facts, Method, and Basic Concepts

2.1 The Factual Background

2.1.1 The One-Way Flow of Indigenous Cultural Property

The cultural property repatriation claims of indigenous peoples are a reversing

consequence of an almost exclusive one-way flow of indigenous cultural property

into western civilisations. It is an open secret that western museums and public or

private collections display and store the majority of indigenous cultural property.

The collections comprise hundreds of thousands of objects, featuring past and

present native, tribal, or ‘primitive’1 cultures. The National Museum of the Ameri-

can Indian (NMAI) of the American Smithsonian Institution alone houses more

than one million objects and artefacts and vast photographic, media, and paper

archives relating to the archaeology, ethnology, and history of Native American

peoples.2 On the other side, innumerable indigenous communities are isolated from

their cultural items.3

Before the nineteenth century, the habit of collecting indigenous cultural prop-

erty tended to be sporadic, with rare or unusual specimens brought back to Europe

by explorers, colonial officials, and traders. The items were acquired in a broader

attempt to understand the peoples and cultures that the discoverers encountered in

the ‘new world’. In the nineteenth century, scientists such as Charles Darwin or

Theodor Waitz became interested in the indigenous peoples and used the collected

objects and data for their anthropological research. Later, the collection and colla-

tion of human exotica became a booming sector, creating an increasing one-way

1 ‘Primitive’ and other problematic terms in this book will be put in quotation marks so that the

readers do not take them at face value.2 The National Museum of the American Indian Act of 1989 (NMAI Act), 20 U.S.C. § 80q(3).3 Lyndel V. Prott and Patrick J. O’Keefe, Law and the cultural heritage, London and Edinburgh:

Butterworths, 1989, at pp. 11–12.


5

flow of thousands of objects into Europe and the western world.4 Grand-scale

explorations took place, striving for the development of scientific enquiry and the

growth of western empires.5 The years from the 1870s to the 1920s were the

‘golden age’ of museum collecting, fuelled by officially approved assimilation

and relocation policies vis-a-vis indigenous inhabitants and the conviction that

indigenous cultures were declining and threatened with extinction.6 Trade and

barter were booming. Archaeologists, anthropologists, and museums strove to

save information on these cultures through the collection of objects, and thereby

often played an ambiguous role vis-a-vis indigenous peoples, which Gii-dahl-guud-

sliiaay describes as follows7:

Museums and other institutions have played an important role in the preservation of cultural

objects and have potential for educating other cultures about Indigenous Peoples’ cultures.

However, at least to some extent, in their rush to preserve what they perceived were the

‘dying races’ and their history, museums and other institutions have hastened the demise of

these cultures through the removal of objects that were integral to our cultural survival.

What was collected at that time not only fills museums today but still fuels a

continuous and strikingly increasing interest of the international art market in

indigenous cultural objects. Monetary values of the objects have exploded. In

2005, for example, the auction of Native American, pre-Columbian, and tribal art

held in San Francisco realised total sales prices of more than US$2.8 million. For a

Native American basket, a 1929 Paiute polychrome basket produced in the

Yosemite-Mono Lake region, a bidder paid US$336,250, three times the pre-sale

estimate. A rare Tinglit shaman’s rattle, acquired in the 1870s by a captain of the

Seventh Regiment of the United States Army, was sold for US$149,250.8

4Heath Pearson, ‘Homo economicus goes native, 1859–1945: The rise and fall of primitive

economics’ (2000) History of Political Economy, 32 (4), pp. 933–989, at p. 936; United Nations

(UN), Commission on Human Rights, Sub-Commission on Prevention of Discrimination and

Protection of Minorities, Chairperson-Rapporteur Erica-Irene Daes, ‘Discrimination against indig-

enous peoples: Study on the protection of the cultural and intellectual property of indigenous

peoples’, (UN Doc. E/CN.4/Sub.2/1993/28, 28 July 1993), at p. 14, para. 49 [hereinafter Daes,

Study 1993]; and Robert K. Paterson, ‘Claiming possession of the material cultural property of

indigenous peoples’ (2001) Connecticut Journal of International Law, 16, pp. 283–295, at p. 285.5 For details on the grand-scale collecting expeditions in the United States conducted by Harriman,

Hemenway, Jessup, Hayden and Powell (following Lewis and Clark), see Richard Waldbauer and

Sherry Hutt, ‘“Cultural property” begins: The centennial of the antiquities act’, in Sherry Hutt

(ed.), Yearbook of cultural property law 2006, Walnut Creek: Left Coast Press, 2006, pp. 147–174,

at pp. 151–153. On the collecting practices of the British Empire, see Ana F. Vrdoljak, Interna-tional law, museums and the return of cultural objects, Cambridge: Cambridge University Press,

2006, at p. 43.6 Vrdoljak, International law, museums and the return of cultural objects, supra note 5, at p. 120.7 Gii-dahl-guud-sliiaay (Terry-Lynn Williams), ‘Cultural perpetuation: Repatriation of First

Nations cultural heritage’ (1995) U.B.C. Law Review, Special edition, pp. 183–201, at p. 183.8 The results of this auction by Bonhams & Butterfields were published on the Website of Antiques

and the Arts, available at http://www.antiquesandthearts.com.

6 2 Facts, Method, and Basic Concepts

http://www.antiquesandthearts.com/

The art market is stimulating dealers and pothunters to penetrate the remotest

areas of the world in order to find the remaining ‘exotic’ indigenous cultures and

their cultural property. The more unique, beautiful, or ‘sacred’ an object is, the

higher is the market price of the object.9 The market mechanisms thereby accelerate

a modern wave of destruction of indigenous and non-indigenous archaeological

sites and put many objects into circulation that are deprived of their original

context. That is where indigenous peoples’ interests meet the ones of scientists

and national governments again.10

2.1.2 Indigenous Cultural Property Takings

A central trigger point of indigenous peoples’ cultural property repatriation claims

is the question of whether the original alienation of such property was legal.

For centuries, a conquering party could legally acquire good title to objects of

the enemy by looting and colonising new territories.11 In the wrestling of state

imperialism, theories of natural law and cultural Darwinism justified countries’

bringing of land and resources under their purview and into their possession.12

Cultural depletion of indigenous peoples thus, in principle, did not qualify as

illegal. It was, on the contrary, a common and internationally accepted understand-

ing to hold the appropriation of indigenous peoples’ resources to be legal.

Today, however, values have changed. A different perception and assessment of

colonial history and the legality of colonial activities require a reconsideration of

the alienation of indigenous cultural property from their original owners. A new

opinion prevails that holds that ‘most of those takings would be improper under

contemporary legal and ethical standards’.13 In the United States, in particular, a

study on Native American cultural property mandated by the American Indian

9 See, for example, Susan Lobo, ‘The fabric of life: Repatriating the sacred Coroma textiles’,

Cultural Survival Quarterly (4 March 2010), available online at http://www.culturalsurvival.org/

publications/cultural-survival-quarterly/bolivia/fabric-life-repatriating-sacred-coroma-textiles.10 Antonia M. De Meo, ‘More effective protection for Native American cultural property through

regulation of export’ (1994) American Indian Law Review, 19, pp. 1–72, at p. 8.11 Hannes Hartung, ‘Kunstraub in Krieg und Verfolgung: Die Restitution der Beute- und

Raubkunst im Kollisions- und Volkerrecht’, Universitat Zurich, Dissertation (2004), at

pp. 9–23; and Kurt Siehr, ‘Restitution of looted art in private international law’, in Marc-Andre

Renold and Pierre Gabus (eds), Claims for the restitution of looted art ¼ La revendication desoeuvres d’art spoliees, Zurich: Schulthess, 2004, pp. 71–94, at pp. 81–83.12 See infra Sect. 2.3.1; and Vrdoljak, International law, museums and the return of culturalobjects, supra note 5, at p. 46.13 David Rudenstine, ‘Symposium: IV. Cultural property: The hard question of repatriation: The

rightness and utility of voluntary repatriation’ (2001) Cardozo Art & Entertainment Law Journal,19, pp. 69–104, at p. 70. See also Bowen Blair, ‘Indian rights: Native Americans versus American

museums � A battle for artifacts’ (1979) American Indian Law Review, 7, pp. 125–145, atpp. 132–133.

2.1 The Factual Background 7

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Religious Freedom Act of 1978 confirmed the assertion that a significant amount of

Native American cultural property was acquired through illegitimate means.14 The

Study came to the conclusion that not only were indigenous human remains

illegitimately collected but also ‘[m]ost sacred objects were stolen from their

original owners. In other cases, religious property was converted and sold by Native

people who did not have ownership or title to the sacred object’.15

The specification of such general statements is, for most cases of collected

indigenous objects, complex or impossible. The provenances may not be available,

or the traces back to the transaction that alienated an object from the original

owners have been lost in an object’s history. In the following cases, however, the

relevant facts could be established and may, to some extent, illustrate the rationale

behind the new opinions. A categorisation of these cases into terms of stolen,

unlawfully excavated, or illegally exported or imported cultural property16 would

be too narrow and inappropriately cling to a western property law perspective. That

is why, in the following, this book will use the word ‘takings’.17 Sometimes, the

knowledge of an indigenous people’s destiny alone might be sufficient to suspect

how and under what repugnant circumstances objects were abandoned.

2.1.2.1 The Taking of Indigenous Human Remains

Human remains provide a first illustrative picture of cultural property takings from

indigenous peoples. Hundreds of thousands of indigenous human remains have

already been excavated, taken out of caves, removed from mountaintops or tree

burials, picked up after military battles, or obtained from hospitals.18 In the United

States, but not exclusively, such activities were officially tolerated, supported, or

even ordered by the government until the twentieth century.19

14 42 U.S.C. § 1996; and Jack F. Trope and Walter R. Echo-Hawk, ‘The Native American Graves

Protection and Repatriation Act: Background and legislative history’ (1992) Arizona State LawJournal, 24, pp. 35–76, at p. 44.15 Trope and Echo-Hawk, supra note 14, at p. 44, citing United States Secretary of the Interior

Federal Agencies Task Force, American Indian Religious Freedom Act Report (August 1979).16 Prott and O’Keefe, Law and the cultural heritage, supra note 3, at pp. 37–51.17 For the use of the term ‘wrongful taking’, see ibid., at pp. 838–839.18 According to Norman Palmer and James Dowling, 18 of the institutions surveyed in Great

Britain claimed to be in possession of 382 human remains holdings from Australia/Tasmania,

21 institutions claimed to be in possession of 187 holdings from New Zealand, and 125 claimed to

be in possession of 1074 holdings from the Americas. United Kingdom, Department for Culture,

Media and Sport, Cultural Property Unit, Norman Palmer and James Dowling, ‘The report of the

working group on human remains’ (November 2003, updated February 2007), at p. 14, para.

35 [hereinafter Palmer and Dowling].19 See, for example, Trope and Echo-Hawk, supra note 14, at pp. 38–43; and Steven J. Gunn, ‘The

Native American Graves Protection and Repatriation Act at twenty: Reaching the limits of our

national consensus’ (2010) William Mitchell Law Review, 36 (2), pp. 503–532, at pp. 508–511.


Human remains of indigenous peoples were curiosities that fuelled a lively

international trade. Mokomokai (the Maori word for tattooed preserved Maori

heads), for example, were very popular trading objects in the nineteenth century,

which reached high prices on the market. To the Maori, tattooing is sacred and was

a mark of rank and importance. However, trade in mokomokai made this tradition

dangerous and uncertain. When captured Maori warriors and slain chiefs could not

provide sufficient heads to meet the demand for mokomokai, slaves were tattooed

and killed to supply the required goods. The Maori thus ultimately stopped the

preserving of heads of friends and relatives out of respect.20

Another reason for the high interest in indigenous human remains was their

scientific value. The skeletons, skulls, and bones served the study of indigenous

peoples, and proving their racial inferiority as ‘savages’.21 An activist member of

the Native American Pawnee tribe once brought this practice into focus with the

following statement: ‘If you desecrate a white grave, you go to jail. If you desecrate

an Indian grave, you get a Ph.D.’22

Generally, only little hints on catalogue cards of collections indicate the ‘prove-

nance’ of indigenous peoples’ human remains. However, if the stories on how the

remains ended up in trade or collections are recovered, they are often highly

problematic. The remains of the allegedly last ‘full-blood’ Aborigine from

Tasmania in Australia, for example, called Truganini, ended up in the British

museum. Born around 1812 on Bruny Island, this woman was the daughter of the

island’s chief. Her mother had been killed by whalers before she was 18. Her first

fiance died while trying to save her from abduction, and her two sisters had been

sold as slaves. Caroline Davies continues the story as follows23:

As conflict continued between settlers and the Aborigines in 1830, Truganini and her

husband Chief Woureddy were moved to Flinders Island, with about 100 others. Thinking

this would save her people, she persuaded many to follow, but they succumbed to influenza

and other diseases. Eventually, those remaining were moved to a settlement at Oyster Cove,

where, in 1873, she was the sole survivor of her people. She died in 1876, aged around

73, in Hobart. Denying her dying wish that her ashes be scattered in the channel that

separates Tasmania from mainland, she was buried, only for her skeleton to be exhumed by

the Royal Society of Tasmania, and later placed on display.

20 Christian Palmer and Mervyn L. Tano, Mokomokai: Commercialization and desacralization,Denver, USA: International Institute for Indigenous Resource Management, 2004 (electronic

version).21 The term ‘savage tribes’ is a citation from T.J. Laurence’s textbook on public international law

that went through many editions. Quoted by Thomas Flanagan, First Nations? Second thoughts,Montreal Ithaca NY: McGill-Queen’s University Press, 2000, at p. 56.22Walter Echo-Hawk, ‘Putting spirits to rest. Sacred tribal artefacts and remains finally coming

home 5 years after law was passed’, Seattle Post Intelligence (11 March 1996), at p. C1.23 Caroline Davies, ‘Aborigines demand that British Museum returns Truganini bust’, theguardian(16 September 2009), available online at http://www.guardian.co.uk/world/2009/sep/16/tasmania-

aborigines-ancestors-repatriation?INTCMP¼SRCH.


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For an affected indigenous tribe, community, or family, it is thus often not only

the excavation but also the trading, researching, and collecting of indigenous

human remains that may result in a wrongful taking.

2.1.2.2 The Taking of Indigenous Cultural Property

Next to human remains, all kinds of objects created by indigenous peoples entered

trade or otherwise ended up in collections. Most important of these are indigenous

peoples’ funerary objects, sacred and ceremonial items, and objects of cultural

patrimony.24

Put in context, many of these objects are proof of a history of diminution and

cultural uprooting, which many indigenous peoples share.25 Destroying their cul-

ture was one way to break resistance movements against colonising powers.26

Assimilation measures of new governments supported and accelerated the cultural

demise. In certain cases, one may even speak of ‘cultural genocide’.27 Important

influences on social traditions of indigenous peoples and their cultural lives were

also epidemic diseases, alcoholism, Christianisation, and the economisation of

indigenous peoples’ territories, resources, and knowledge. Indigenous peoples

themselves believed predictions of the complete demise of their tribal existence.

In consequence, indigenous peoples’ separate cultural identities became weak-

ened. Their leaders became unable, or lacked sufficient interest, to go on

performing their leader’s and feast obligations and to ultimately prevent the

removal of their cultural property. Ceremonial gear, sacred objects, and cultural

patrimony became useless and unprotected.28

24 On this legal categorisation of indigenous peoples’ cultural property, see infra Sect. 2.3.2.3.25 Anja Titze, ‘Die Vereinten Nationen und indigene Volker’ (2007) Vereinte Nationen, 5,

pp. 190–197, at p. 190.26 Destroying of cultural property is an applied war strategy in order to weaken the enemy.

‘Shadow armies’ list the works of culture and art of the attacked party that are to be removed or

destroyed, long before war breaks out. See Wilfried Fiedler, ‘Zwischen Kriegsbeute und

internationaler Verantwortung – Kulturguter im Internationalen Recht der Gegenwart: Pladoyer

fur eine zeitgemasse Praxis des Internationalen Rechts’, in Gerte Reichelt (ed), Neues Recht zumSchutz von Kulturgut. Internationaler Kulturguterschutz. EG-Richtlinie, UNIDROIT-Konventionund Folgerecht, Vienna: Manzsche Verlags- und Universitatsbuchhandlung, 1997, pp. 147–160,

at p. 153.27 On the term ‘cultural genocide’, see Tullio Scovazzi, ‘La notion de patrimoine culturel de

l’humanite dans les instruments internationaux’, in James A. R. Nafziger and Tullio Scovazzi

(eds), Le patrimoine culturel de l’humanite ¼ The cultural heritage of mankind, Leiden and

Boston: M. Nijhoff Publishers, 2008, pp. 145–247, at pp. 134–137; and Hartung, supra note 11, at

pp. 203–205.28 Richard Overstall, et al., ‘The law is opened: The constitutional role of tangible and intangible

property in Gitanyow’, in Catherine E. Bell and Val Napoleon (eds), First Nations culturalheritage and law: Case studies, voices, and perspectives, Vancouver BC: U.B.C. Press, 2008,at p. 99.


Two cases from within the United States and two international repatriation cases

involving Canadian and Bolivian indigenous peoples will establish in more detail

the context of indigenous peoples’ cultural property alienation. They show that

indigenous peoples, even if living on different territories and sharing no common

history or culture, often feel very similar about their cultural property losses or

takings.

The Ghost Dance Shirts of the Lakota

At the end of the nineteenth century, the Native American dances in the United

States were considered ‘old heathenish dances’ and a great hindrance to the official

policy of Indian Christianisation and civilisation.29 In consequence, the Commis-

sioner of Indian Affairs distributed a set of rules for Indian Courts that officially

deemed participation in the sun dance, the scalp dance, and the war dance a criminal

offence.30 Indian agents enforced the rules and banned Indian dances. Measures

ranged from threats of punishment to the withholding of government rations

(on which the Indians depended after their confinement to reservations), destruction

of dance houses, imprisonment, or threats of military intervention.31

Also the ghost dance became prohibited at deaths by the Code of Indian

Offenses.32 The ghost dance was a religious, anti-violent dance movement that

rose with the Native Americans all over the United States as an ultimate resistance

to the decline of Indian tribal independence.33 It ended with a famous military

intervention enforcing the dance prohibition against the Lakota ghost dancers in

1890 at Wounded Knee. After governmental troops arrested and shot the important

traditional Lakota leader, Sitting Bull, they massacred around 300 Indians who

were believed to practise the ghost dance.34

29 Henry Teller, Secretary of the Interior expressed this view in a letter to the Commissioner of

Indian Affairs in December 1882. Allison M. Dussias, ‘Ghost dance and holy ghost: The echoes of

nineteenth-century Christianization policy in twentieth-century Native American free exercise

cases’ (1997) Stanford Law Review, 49, pp. 773–852, at p. 788.30 United States, Office of Indian Affairs, Annual Report of the Commissioner of Indian Affairs,1883, at pp. XIV–XV.31 Dussias, supra note 29, at p. 788.32 Carole Goldberg, ‘Law and legislation: Overview: U.S. law and legal issues’, in Duane

Champagne (ed.), The native North American almanac: A reference work on native NorthAmericans in the United States and Canada, Detroit Mich.: Gale Research, 1994, pp. 449–461,

at p. 452 [hereinafter Goldberg, ‘Law and legislation: Overview’].33 For an anthropological view on the ghost dance and the Wounded Knee Massacre, see James

Mooney, The ghost-dance religion and the Sioux outbreak of 1890, Lincoln: University of

Nebraska Press, 1991; and Dussias, supra note 29, at p. 795.34 On the killing of Sitting Bull, see United States, Office of Indian Affairs, Annual Report of theCommissioner of Indian Affairs, 1891, at pp. 333–338. See also Dee Brown, Bury my heart atwounded knee: An Indian history of the American West, New York: Sterling Publishing Co.,

Inc., 2009.


The ban on dances was later reversed. However, the objects used in the dances

are, in most cases, no longer in the custody of the dancers or their successors or

clans. The ghost dancers wore shirts that they usually painted with stars, moons, and

suns, in the belief that they became bulletproof while dancing. Today, several such

shirts are kept and displayed in museums. How legitimate was the collecting of such

shirts in view of the historical facts?

The Smithsonian Institution reacted with the return of several ghost dance shirts

to the Lakota. After an intense process, the Kelvingrove Museum in Glasgow also

handed over one shirt with a possible Wounded Knee provenance.35 The shirt was

thereby one of more than a dozen objects kept at the Glasgow Museums that are

said to be taken from peoples massacred at Wounded Knee. Among them are a

warrior’s necklace, a pair of boy’s moccasins, and a baby’s cradle. The Lakota have

requested the repatriation of four of these objects from the Glasgow Museums, but

the Glasgow Council has so far turned down the request.36

The Wampum Belts of the Iroquois

An integral cultural part of the Iroquois culture is wampum belts. The Iroquois

people consist of several Native American tribes such as the Mohawk, Oneida,

Onondaga, Cayuga, Seneca, Tuscarora. They today primarily live in New York,

Quebec, and Ontario.37 Wampum belts are created from purple and white clam and

conch shell beads. The belts traditionally fulfilled important social, cultural, politi-

cal, and spiritual functions.38 Symbols woven into the belts constitute recorded

Iroquois history, religion, and law combined.39 Iroquois traditionally used the belts

as ‘mnemonic devices to record important events, as message devices, an aid to the

correct recitation of a ritual or ceremony and as symbols of treaties and

35 See infra section ‘Governmental Bodies Developing Procedural Solutions’.36 United Kingdom, House of Commons, Select Committee on Culture, Media and Sport, ‘Cultural

property: Return and illicit trade’, Seventh Report, Minutes of Evidence, Memorandum submittedby Glasgow City Council, (Vol. II, HC 371-II, 18 July 2000), at ch. 3–5.37 On the Iroquois peoples, see Haudenosaunee (Mohawk, Oneida, Onondaga, Cayuga, Seneca,

Tuscarora: Kahnawake Branch of the Mohawk Nation, Six Nation Iroquois Confederacy), ‘History

& Culture’, available at http://www.kahnawakelonghouse.com/index.php?mid¼2.38William N. Fenton, ‘The New York State wampum collection: The case for the integrity of

cultural treasures’ (1971) Proceedings of the American Philosophical Society, 115, pp. 437–461,at p. 440 [hereinafter Fenton, ‘The New York State wampum collection]; and Richard W. Hill,

‘Repatriation and the Indian way of mind’, in Sheila Watson (ed.), Museums and theircommunities, London: Routledge, 2008, pp. 292–323, at p. 317.39 Blair, supra note 13, at p. 126.


http://www.kahnawakelonghouse.com/index.php?mid=2


agreements’.40 It was the medium through which the Iroquois retained and trans-

mitted information from generation to generation.41

Within the Iroquois Confederacy, the Onondaga tribe was the official holder of

the office of ‘wampum keeper’. A traditional Onondaga chief was attributed with

such title and responsibility.42 In 1899, however, a New York State Indian Law

determined the University of the State of New York to hold the new office of

wampum keeper.43 In the same year, the Onondaga transferred their last five

wampum belts against a payment of US$500 into the custody of the University.44

The Onondaga later disputed the validity of the New York State law and claimed

that the wampum belts were only on loan.45 Again, the concrete historical facts

enlighten how critical the circumstances were under which the Onondaga ‘elected’

the University and transferred the belts.

At the end of the nineteenth century, traditional Onondaga chiefs had to fight for

the recovery of the wampum belts. They were illegitimately sold to private

collectors by the then acting wampum keeper, Onondaga Chief Thomas Webster.

The Onondagas removed Webster from his office for betraying a trust, but the

collectors refused to return the belts based on their bills of sale.46 In 1893, the

World’s Columbian Exhibition in Chicago displayed the belts transferred to the

collectors as being reminiscent of a glorious past of the Iroquois. This added fuel to

the belief that the Iroquois were a ‘vanishing race’ with little hope of surviving the

next century.47 To strengthen their position as a still existing nation and Confeder-

acy, the Onondaga sought the assistance of anthropologists in their claim against

the wampum belt collectors. The anthropologists convinced the Onondaga that they

needed the help of the New York State University.48 In the negotiations with the

University, the Onondaga—to whom the written law and the English language were

foreign—entrusted Harriet Maxwell Converse with the role of their ‘attorney’.49

However, Converse had an obvious conflict of interests. On the one hand, she was a

defender of Indian rights and a friend of the Indians, who was adopted by the

40 Fred A. Morris, ‘Law and identity: Negotiating meaning in the Native American Graves

Protection and Repatriation Act’ (1997) International Journal of Cultural Property, 6,

pp. 199–230, at p. 206, citing Robert F. Spencer, et al., The Native Americans: Ethnology andbackgrounds of the North American Indians, 2nd edn, New York: Harper & Row, 1977, at p. 396.41 Hill, supra note 38, at p. 317.42 Ibid., at pp. 320–321.43 Section 27 of the New York State Indian Law of 1899, cited by Fenton, ‘The New York State

wampum collection’, supra note 38, at pp. 438–439.44 Ibid., at pp. 450–453.45 Ibid., at pp. 437–440.46 Ibid., at p. 453; and Hill, supra note 38, at p. 321.47 Hill, supra note 38, at pp. 320–321.48 Ibid., at p. 321. For more details on the connection between the election and transfer of the

wampum belts and the willingness of the University to join the claim, see Fenton, ‘The New York

State wampum collection’, supra note 38, at p. 452.49 Blair, supra note 13, at p. 132.


Seneca nation and made honorary chieftainess of the Six Iroquois Nations. On the

other hand, she was an enthusiastic collector of Native American cultural property

and enjoyed the blessing of the New York State University that aimed to found an

Indian museum.50

The Onondaga ultimately agreed to the election of the University as wampum

keeper and the transfer of the belts, in order to get the University on their side in

their suit against John Thatcher, one of the private collectors and former mayor of

Albany. Nevertheless, the trial judge held that the University was never selected or

‘raised up’ to the position or office of ‘wampum keeper’, that the Iroquois Confed-

eration had ceased to exist, that the wampum belts were curiosities and relics of

time, and that the Onondaga seller did not hold the wampum in trust but had a right

to sell it. The higher courts confirmed the holding, the return of the wampum belts

was definitively denied, and the case lost.51

The University, nevertheless, kept the wampum belts and later handed them over

to the New York State Museum. A 1909 New York State law fixed the Museum’s

possession by bestowing upon itself the position of wampum keeper and claiming

rights over any wampum belts, past, present, or future.52 Sixty years later, public

pressure led to an amendment of the Indian Law, which obliged the Museum to

re-transfer the five wampum belts received from the Onondaga in 1898.53

The Potlatch Objects of the Kwakwaka’wakw

An easy prey for cultural property collectors was also the potlatch objects from the

First Nations living in the north-western regions of British Columbia. Potlatches are

ceremonies celebrated at significant events of these First Nations, including

marriages, naming of children, memorials to the dead, raising of totem poles, and

transfers of rights and privileges. Next to feasting, speeches, storytelling, dancing,

and singing, an important part of potlatch ceremonies is the giving of gifts

consisting of cultural objects before witnesses. The ritual promoted values such

as humility, generosity, responsibility, and respect.54 The Canadian government

prohibited the potlatch ceremony in 1884 by amending the federal Indian Act.55

50 Fenton, ‘The New York State wampum collection’, supra note 38, at p. 450.51Onondaga Nation v Thatcher (1901) 29 Misc 428, 61 NYS, 1027, 169 NY Rep 584. On the case,

see Hill, supra note 38, at p. 321; and Blair, supra note 13, at p. 132.52 Hill, supra note 38, at p. 321.53 Blair, supra note 13, at pp. 125–126 and 132.54 Catherine Bell, et al., ‘Recovering from colonization: Perspectives of community members on

protection and repatriation of Kwakwaka’wakw cultural heritage’, in Catherine E. Bell and Val

Napoleon (eds), First Nations cultural heritage and law: Case studies, voices, and perspectives,Law and society series, Vancouver BC: U.B.C. Press, 2008, pp. 33–91, at p. 46.55 An Act to Amend and Consolidate the Laws Respecting Indians, SC 1880, c. 28.


The Act was revised in 1895 because of its vague wording, which made it difficult

to enforce.56 Section 3 reads:

Every Indian or other person who engages in or assists in celebrating the Indian festival

known as the ‘potlatch’ or in the Indian dance known as the ‘Tamanawas’ is guilty of a

misdemeanour, and shall be liable to imprisonment for a term of not more than six nor less

than two months in any gaol or other place of confinement; any Indian or other person who

encourages, either directly or indirectly, an Indian or Indians to get up such a festival or

dance, or to celebrate the same, or who shall assist in the celebration of the same is guilty of

a like offence, and shall be liable to the same punishment.

Gloria Cranmer Webster, from the Kwakwaka’wakw, describes how such gov-

ernmental prohibition affected the possession of potlatch objects.57 In 1921, her

father organised a large potlatch ceremony in breach of the amendments to the

Indian Act. In consequence, the acting Indian Agent started investigations against

45 people who attended the potlatch. However, he offered to suspend sentences if

the villages where the accused were living would surrender their ceremonial gear.

Many Kwakwaka’wakw gave in and handed over cultural objects to the Indian

Agent in order to avoid sons, daughters, friends, etc. going to jail.58 The Indian

Agent collected masks, rattles, coppers, whistles, and many other objects and

shipped them to the Victoria Memorial Museum in Ottawa and the Royal Ontario

Museum in Toronto. From there, they were sold to private collectors such as George

Heye, an American collector and the founder of the Heye Museum, who later

transferred more than one million Indian art objects and artefacts to the United

States NMAI.59 One transformation mask from this potlatch ended up in the British

Museum.60

In modern terms, one could argue that the Indian Agent seized criminal goods or

accepted them as a payment for avoiding detention punishment. At that time, the

transferral of the objects might also have established good title in the objects

surrendered. However, by 1951, the Canadian government had reversed its prohi-

bition policy with regard to the potlatch and issued an Act Respecting Indians.61

After the passage of this Act, the Kwakwaka’wakw started serious efforts to

repatriate their potlatch objects. For this reason, the U’mista Cultural Society was

56An Act Further to Amend The Indian Act of 1880, SC 1884, c. 27, s. 3. A further amendment to

the Indian Act released in 1918 declared the celebration of the potlatch a summary conviction

offence, and jurisdiction on potlatch infringements was delegated to the Indian Agents. An Act to

Amend the Indian Act, SC 1918, c. 26.57 Gloria Cranmer Webster, ‘Part III. Repatriation and protection of First Nations culture in

Canada: The potlatch collection repatriation’ (1995) University of British Columbia Law Review,Special issue, pp. 137–142.58 Ibid., at p. 138.59 The NMAI Act, supra note 2, 20 U.S.C. § 80q(3).60 Cranmer Webster, supra note 57, at p. 138; and Bell, et al., ‘Recovering from colonization:

Perspectives of community members on protection and repatriation of Kwakwaka’wakw cultural

heritage’, supra note 54, at pp. 54–55.61 An Act Respecting Indians, SC 1951, c. 29, s. 123(2).


incorporated in 1974 and a facility was construed whereby the objects could be

kept. Several Canadian and United States museums responded to the efforts and

repatriated objects. Also, the British Museum returned its mask on a long-term loan

basis. The U’mista Cultural Society is still missing another undetermined number

of objects whose whereabouts are unknown. It has declared that it will continue to

seek the repatriation of those objects if they can be located.62

The Sacred Textiles of the Coromenos

Whereas in North America indigenous peoples had lost most of their traditional

cultural property by the first quarter of the twentieth century, in other areas of the

world the decline of traditional lifestyles, combined with a loss of indigenous

communities’ cultural property, is still ongoing. An example from Bolivia shows

how similar the process of indigenous peoples’ cultural property takings is world-

wide, irrespective of time and place. This is the case with the Coromenos, who lost

sacred textiles in the way that Susan Lobo describes as follows63:

The disappearance of the sacred weavings coincided with visits by various North American

ethnic art and antiquities dealers beginning in 1978. (As was customary in Coroma, all

those visiting the community were required to sign a ‘Book of Acts.’) The dealers often

arrived in Coroma during the Fiesta of All Souls Day and took photographs of the sacred

garments; this was the only time of the year when the weavings were publicly removed

from their q’epis. According to Coromenos, hired intermediaries, using these photos as

guides, either stole the sacred garments outright or took them by bribing community

members.

Similar to the situation of Native Americans at their cultural nadir, the despera-

tion of the Coromenos during the drought years in the early 1980s was one of the

reasons why individual Coromenos gave away sacred textiles for money.64

These sales, however, contradicted the tradition of the Coromenos, according to

which no individual has the moral or legal right to alienate sacred textiles or any

object that has ongoing historical, traditional, and cultural importance, whether

through payment or not. The Bolivian national law supports such customary control

of community holdings of cultural property by explicitly recognising communal

ownership of indigenous peoples.65 The alienation of sacred weavings may thus be

considered stolen under the applicable law in Bolivia, whether an indigenous

62U’mista Cultural Society, ‘The potlatch collection history’, available at http://www.umista.org/

collections/index.php.63 Lobo, supra note 9.64 Ibid.65 On the legal development in Bolivia, see Elizabeth Torres, ‘Chronological overview on

developments in Bolivian and Latin American cultural heritage legislation with a special emphasis

on the protection of indigenous culture’, in Barbara T. Hoffman (ed.), Art and cultural heritage:Law, policy, and practice, Cambridge: Cambridge University Press, 2006, pp. 124–133.


http://www.umista.org/collections/index.php


person of the relevant group was involved or not, whether for money or not.66 In

1988, the Coromenos started a major repatriation effort mainly against a private

collector in the United States. Four years later, with the support of the United States

government, 48 sacred textiles out of a collection of nearly 1,000 pieces were

returned.67

2.2 Methodology

2.2.1 The Problem of Legal Pluralism

When working on the claims of indigenous peoples for repatriation of their cultural

property, one first has to find a way of coping with the enormous variety of

potentially applicable laws. The concept of indigenous peoples is international, or

even universal,68 but the greatest part of the law that is ultimately applicable is

national and limited by territory.69 If the circumstances of the cases are interna-

tional, human rights law and international cultural property law in a wider sense

need to be respected. However, international law is highly fragmented. Many

international organisations have started to deal with indigenous peoples’ rights,

often uncoordinated, overlapping, and generally pitching only one of several

aspects, which are relevant for indigenous peoples’ cultural property repatriation

claims. At a national level, the applicable law derives from several separate, legal

areas, namely and most importantly from private property, public cultural property

law, from the laws of torts, customs, tax, trade etc. Also, private international law is

important when the applicable national law needs to be defined in an international

case. A disputed case leads even further into the civil, administrative, and criminal

procedural laws.70

The search for legal sources soon reveals that binding law is just the tip of the

iceberg of normative orders that regulate the issues with regard to indigenous

peoples’ cultural property repatriation claims. When digging beyond international

conventions and national law, one finds countless endeavours of international

organisations, human rights bodies, non-governmental organisations (NGOs), pro-

fessional associations, museums, and cultural institutions that are constantly work-

ing on regulating the field. The results are codes, resolutions, declarations,

66 Lobo, supra note 9.67William H. Honan, ‘U.S. returns stolen ancient textiles to Bolivia’, New York Times(27 September 1992).68 On the concept of indigenous peoples, see infra Sect. 2.3.1.69 See infra section ‘Territoriality of the Law’.70 Gerte Reichelt, ‘Einfuhrung in die Thematik’, in Gerte Reichelt (ed.), Internationaler Kulturgu-terschutz. Wiener Symposion 18./19. Oktober 1990, Vienna: Manzsche Verlags- und Universi-

tatsbuchhandlung, 1992, pp. 31–81, at p. 31.

2.2 Methodology 17

guidelines, standardised solutions, and norm-setting activities that may have rele-

vance for indigenous peoples’ cultural property repatriation claims. Of central

importance are also indigenous peoples’ customs or customary laws, which are,

strictly speaking, not law in a western sense yet are obviously of relevance for the

research topic.71 For future law and policy forming, all these normative orders are

highly important despite the lack of a legally binding quality.

In order to deal with these difficulties, I have chosen to apply two methodologi-

cal strategies: (1) selection and (2) legal pluralism.

2.2.2 The Necessity to Choose

One way of resolving methodological problems pertaining to multiple fields and

layers of norms would have been to start with a case study. This would have made it

possible to work with determined parties and objects, to evaluate the applicable

law, and to limit the amount of jurisdictions under research.72 For this book,

however, I decided to apply a broader approach based on abstract selections.

The first of these selections pertains to the regions in focus and the national

jurisdictions. I chose in the first instance the United States and the Native American

cultural property repatriation claims as the main objects of study for several

reasons. Thanks to the far-reaching and progressive federal Indian law in the United

States, this country has rich experience with the legal implications of indigenous

peoples’ cultural property repatriation claims and the development and application

of possible legal solutions. American legal scholars, including Native American

researchers, have provided a huge amount of well-accessible legal texts on cultural

property law in general and indigenous cultural property repatriation claims in

particular. The efforts have influenced the international development of cultural

property law, as well as international protection of indigenous peoples’ rights, and

also brought forward many indigenous voices.

The picture is complemented by selected considerations on the situation in

Canada, New Zealand, and Australia. Examples mainly from South America and

Oceania serve to illustrate the similarities of indigenous peoples’ claims over large

areas of the world. In many countries, however, it is difficult to assess indigenous

peoples’ claims due to the lack of recognition by their national governments at the

international level. This includes several African states, India, and to some extent

Russia.

71 See infra Sect. 5.2.72 That is how the author approached the research field at the very beginning. Karolina Kuprecht,

‘Lost within culture. A legal abstract about rights and duties in a cultural property case between the

Native American Museum of Zurich, Switzerland and the Native Americans’, UCLA University ofCalifornia, LL.M. Thesis (Los Angeles, February 2002), on file with the author.



Furthermore, I chose England, France, and Switzerland in order to test how

European countries deal with international cultural property repatriation claims of

indigenous peoples. These three countries have some of the biggest art markets in

Europe and also feature a very high density of museums and cultural institutions.

England and France are, in addition, colonising states with an increased sensitivity

to the claims of indigenous peoples from their former colonies. Switzerland, again,

has one of the most sophisticated cultural property codes and continuously works

on bilateral cultural property agreements with other states.

Germany has cultural property law in place73 but clearly fights shy of the human

rights aspects of indigenous peoples’ cultural property claims. In April 2013, the

German Minister of State for Culture and Media published a report about the status

quo of Germany’s cultural property law and urged renewal and amendment of the

existing regulations. This report, however, lacks any profound reference to indige-

nous peoples’ cultural property claims or the developments in international human

rights law. Neither the UN Declaration on the Rights of Indigenous Peoples

(UNDRIP) nor the relevant articles of the International Human Rights Covenants

receive attention, and the repatriation claims of indigenous peoples are left at the

level of the restitution claims of countries of origin. It is thus not surprising that the

report discounts the issue in just a few words by stating that the claims would

inappropriately reduce the multilayered questions of cultural property protection

and cultural heritage preservation of mankind to the question of where cultural

property should be located.74

Austria likewise has not yet enacted any specific law that regulates the repatri-

ation of cultural property and implements international cultural property law. For

the national legislator, this could be a chance to break new ground and become a

European pioneer in terms of respecting and implementing international cultural

and collective rights. However, so far no development in such a direction is in sight.

The second important selection in this book concerns the international law, in

particular the international human rights law relevant to indigenous peoples’

cultural property claims. Worldwide, innumerable human rights activities have

unfolded in recent decades, which increasingly include the collective rights of

73 Act to Implement the UNESCO Convention of 14 November 1970 on the Means of Prohibiting

and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property and to

implement the Council Directive 93/7/EEC of 15 March 1993 on the Return of Cultural Objects

Unlawfully Removed from the Territory of a Member State (‘Gesetz zur Ausfuhrung des

UNESCO-Ubereinkommens vom 14. November 1970 uber Maßnahmen zum Verbot und zur

Verhutung der rechtswidrigen Einfuhr, Ausfuhr und Ubereignung von Kulturgut und zur

Umsetzung der Richtlinie 93/7/EWG des Rates vom 15. Marz 1993 uber die Ruckgabe von

unrechtmaßig aus dem Hoheitsgebiet eines Mitgliedstaats verbrachten Kulturgutern’), 18 May

2007 (BGBl. I p. 757, No. 21, 2547).74 Germany, Federal Government, Minister of State for Culture and Media (‘Staatsminister fur

Kultur und Medien’), ‘Bericht der Bundesregierung zum Kulturgutschutz in Deutschland’ (2013),

at pp. 89–90.

2.2 Methodology 19

indigenous peoples. A lot of them take place at a regional level.75 The international

acknowledgement of indigenous peoples’ rights, however, is the most developed in

the universal human rights instruments of the UN and their specialised agencies,

mainly the International Labour Organization (ILO).76 For the development of

international law regarding moveable cultural property, UNESCO is the main

player. That is why the legal instruments of these international organisations will

be the focus of this book.

2.2.3 Legal Pluralism as a Method

Private international law, which contains conflict of law principles, is the legal tool

for resolving the question of different possibly applicable national laws in private

law cases. In the conflict of public law between different governmental levels such

as local, national, regional, or international law, the hierarchy of enactment is

decisive. In order to fully capture the dimension and relevant regulations for

indigenous peoples’ cultural property repatriation claims, however, it is not suffi-

cient to purely look at the binding private and public laws and their conflicts. It is

necessary to additionally implement the insights of legal pluralists.

Legal pluralists deal with situations in which several legal systems regulate the

same social field, by analysing and emphasising the coexistence, the overlapping,

and the interrelation of normative orders in a broad sense.77 Legal pluralists

perceive ‘the exclusive positivist focus on state law and its systems of lawyers,

courts, and prisons’ as ‘legal centralism’78 that narrows the perspective and the

means for finding appropriate resolutions of conflicts. Furthermore, they suggest

concentrating on the study of ‘trouble-less cases’ instead of situations of dispute,

since the latter are exceptional events and therefore misleading guides to the nature

of ordering.79

75 The most important regional human rights conventions with implications for indigenous peoples

or at least national minorities are the American Convention on Human Rights, OAS Treaty Series

No. 36; 1144 UNTS 123 (adopted on 22 November 1969, entered into force 18 July 1978);

reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System,

OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992); the African Charter on Human and Peoples’ Rights,

21 ILM 58 (adopted on 27 June 1981, entered into force 21 October 1986); and European

Convention on Human Rights, CETS No. 005 (adopted on 4 November 1950, entered into force

3 September 1953). See Patrick Thornberry, Indigenous peoples and human rights, Manchester:

Manchester University Press and Juris Publishing, 2002, at pp. 244–317.76 The International Labour Organization (ILO) was founded in 1919 and became the first

specialised agency of the UN in 1946.77 Sally E. Merry, ‘Legal pluralism’ (1988) Law& Society Review, 22, pp. 869–896, at p. 870; RalfMichaels, ‘Global legal pluralism’ (2009) Annual Review of Law & Social Science, 5,

pp. 243–262, at p. 244; and Paul S. Berman, ‘The new legal pluralism’ (2009) Annual Review ofLaw & Social Science, 5, pp. 225–242, at p. 226.78 Berman, supra note 77, at p. 228.79Merry, supra note 77, at pp. 879–880.


Important research on situations of legal pluralism has been dedicated to what

Sally Engle Merry calls the ‘classic legal pluralism’.80 Anthropologists and social

scientists have looked at the questions of how pre-colonial forms of social order

function without European law and how colonisation influenced, changed, or

suppressed such orders or even made use of them for specific, mostly economic,

purposes.81 The focus of this research is the interplay of western and non-western

laws in colonial and post-colonial settings in specific geographical areas.82 From

there, the concept of legal pluralism has been further developed. Lawyers became

interested in the method by departing from the focus on the law in colonial

societies. Today, legal pluralism is generally used to deal with the coexistence of

normative orders in a globalised world. Under the terms ‘global legal pluralism’83

or ‘the new legal pluralism’,84 the concept encourages analysing in general ‘the

hybrid legal spaces created by a different set of overlapping jurisdictional assertions

(state versus state, state versus international body, state versus non-state entity) in

the global arena’.85 In focus is the interplay between any official and unofficial law

and the attempt to analyse the law beyond specific individualised, localised states or

communities, by capturing what has been developed as the ‘transnational sphere’.86

The theory of legal pluralism thus expects researchers to take into account

socially existing orders, including customs, customary law,87 the orders of private

regulatory bodies, associations, and non-state institutions or private government

and private justice,88 as well as supra- and transnational ordering.89 Such normative

orders may not only define social norms, morality, or ethics90 but even take on the

quality of an autonomous set of ‘law’ such as the lex mercatoria or the lexdigitalis.91

80 Ibid., at p. 872.81 Ibid., at pp. 869–870.82Michaels, supra note 77, at p. 245.83 For example, ibid.84 Berman, supra note 77.85 Ibid., at p. 226.86Michaels, supra note 77, at pp. 244–245, thereby mainly referring to writings of the social

scientists Gunther Teubner and Boaventura De Sousa Santos.87Merry, supra note 77, at pp. 875–876.88 Berman, supra note 77, at p. 228; and Merry, supra note 77, at pp. 877–878.89Michaels, supra note 77, at p. 244.90 Berman, supra note 77, at pp. 228–229.91 Gunther Teubner and Peter Korth, ‘Two kinds of legal pluralism: Collision of transnational

regimes in the double fragmentation of world society’, in Margaret Young (ed.), Regime interac-tion in international law: Facing fragmentation, Cambridge etc.: Cambridge University Press,

2012, pp. 23–54, at p. 31; and Vaios Karavas and Gunther Teubner, ‘http://CompanyNameSucks.

com: The horizontal effect of fundamental rights on private parties within autonomous internet

law’ (2003) German Law Journal, 4, pp. 1335–1356. Michaels also refers to subsuming the legal

orders of a lex constructionis and a lex sportiva under such autonomous sets of law. Michaels,

supra note 77, at p. 247.

2.2 Methodology 21

http://companynamesucks.com/


Another cornerstone of legal pluralism is the analysis of the relations between

normative orders and their interactions.92 Classic legal pluralism as developed in

colonial settings usually based its analysis upon the premise that state law is

hierarchically superior to non-state law. It is called ‘weak legal pluralism’,93

according to which law appeared as a ‘potent tool for modernisation in Third

World countries and for creating social justice in the First World during this

period’.94 The new legal pluralism, however, is deemed to work with the insight

that social arrangements are strong and might impede the implementation of new

laws if the latter are not appropriate.95 The legal reforms in Turkey, for example, by

which the Swiss Civil Code replaced the Islamic Ottoman law in 1926, had little

comprehensive effect on the social ordering of local villages. The changes hap-

pened only gradually and incrementally.96 In order to prevent such legal

incompliance with social realities, Merry suggests better analysis of relations and

interactions of normative orders, by emphasising the context and historical under-

standing of the orders and their development through the dialectic between different

legal systems. According to Merry, the dialectic analysis of relations among

normative orders offers a way of thinking about the possibilities of domination

through law and of the limits to this domination, pointing to areas in which

individuals can and do resist.97

In the application of these insights into legal pluralism, this book dedicates a

section to the clash of western and indigenous world views beyond any legal

relationships. The understanding of some fundamental differences—even if per-

ceived through a western lens—constitutes an indispensable sensitisation for the

conflicts that indigenous peoples’ cultural property repatriation claims raise. It is

ultimately decisive in finding appropriate ways to resolve the conflicts.

I will furthermore apply the method of legal pluralism by respecting throughout

the research the existence of normative orders beyond binding law. Thereby,

normative orders will not be working as the opponent of centralised state law or

as the ultimate means of resolving indigenous cultural property repatriation claims.

Legal pluralism without a constitutional framework may create in practice a messy,

frustrating, and obstructive process.98 The goal in working with a broad under-

standing of normative orders was to open the spectrum of possibilities of how

indigenous peoples’ cultural property repatriation claims may be appropriately

resolved. It furthermore helped to identify three fundamental requirements and

objectives that ought to be respected in any regulative order. And finally, since

states are actually not very receptive to taking legislative steps in the field, this work

92Merry, supra note 77, at pp. 879–886.93Michaels, supra note 77, at p. 247.94Merry, supra note 77, at p. 879.95 Ibid., at pp. 879–880.96 Ibid., at p. 880.97 Ibid., at pp. 889–890.98 Ibid., at p. 871.


will promote the parallel development of different solution approaches in a legally

pluralistic environment that could help to further pave the way for legitimate,

appropriate, and feasible law that takes into account the transnationality of the

subject.

2.3 Basic Concepts and Challenges

Three key pillars demarcate indigenous peoples’ cultural property repatriation

claims, which are best summarised by the following three questions: (1) Who are

indigenous peoples, (2) what is indigenous cultural property, and (3) what

differences in world views influence all disputes with regard to indigenous peoples’

cultural property?

2.3.1 Indigenous Peoples

Indigenous peoples form a multifarious group of communities and individuals that

are spread all over the world and feature a fascinating cultural diversity. The ILO

speaks of around 5,000 indigenous and tribal groups and 300 million indigenous

people living among approximately 70 countries of the world.99 A little higher are

the numbers provided by other sources that speak of 370 million indigenous people

in some 90 countries in the year 2011.100 What justifies assembling these so-called

indigenous communities under one single term despite the lack of common borders

and economic, social, geographical, and cultural interdependence? What do the

Cree Indians living in Canada have in common with the Saami people in

Scandinavia, the Maasai community in Kenya, the Bindeku and Kamaeku tribes

in Papua New Guinea, the Pueblo Indians in Ecuador, the Maori people in

New Zealand, or the Crimean Tatar in Ukraine?

In order to understand from a legal point of view what connects indigenous

peoples worldwide, a look into the theory of international law of the eighteenth

century by Emer de Vattel can lay the foundation. This philosopher, diplomat, and

legal expert asked himself: Can a nation legitimately occupy parts of a vast country

where nomadic people live who are unable to inhabit all of the land in view of their

99 ILO, Regional Office for Asia and the Pacific, ‘Indigenous people still the poorest of the poor’

(8 August 2001), available at http://www.ilo.org/asia/info/public/pr/lang–en/WCMS_BK_PR_

26_EN/index.htm.100 See Titze, supra note 25, at p. 190. The same numbers were provided by UNPFII, ‘About

UNPFII and a brief history of indigenous peoples and the international system’, available at http://

www.un.org/esa/socdev/unpfii/en/history.html. However, this site is no longer available. On the

difficulty of determining the number of indigenous people(s), see Thornberry, supra note 75, at

pp. 15–18.

2.3 Basic Concepts and Challenges 23

http://www.ilo.org/asia/info/public/pr/lang--en/WCMS_BK_PR_26_EN/index.htm


http://www.un.org/esa/socdev/unpfii/en/history.html

http://www.un.org/esa/socdev/unpfii/en/history.html

small number?101 Vattel answered the question by admitting that the question is

disputed. His personal opinion was that the cultivation of the land is an important

natural duty of humankind and essential to securing nutrition of the inhabitants of

the land. In consequence, he admitted farming people a natural law of primacy over

peoples who based their living on hunting, gathering, herding cattle, or robbing. He

feared for humankind if all peoples took more land than they needed for honest

work, in view of the heavy growth of the population at that time.102 This led Vattel

to the conclusion that the European peoples who were living in a huddle on their

homelands had the right to occupy, colonise, and thereby organise the land that was

of no special need to the ‘wild peoples’ such as the peoples in North America who

did not properly use the land.103

These deliberations on indigenous peoples’ territories represent what later

culminated in the internationally accepted and practised terra nullius theory.104

Terra nullius originally described frontier areas in Europe, also known as marches,

over which no recognised authority effectively exerted what was held to be legiti-

mate power.105 The individuals living on this land usually had some sort of

peacekeeping rules, but the enforcement of those rules had less to do with law

than with martial power.106 This definition of marches suited new world territories,

when after the stabilisation of Europe as negotiated at the Congress of Vienna in

1815 a new understanding of nationality and a new formation of states community

emerged.107 Imperialism started a competition between nations to occupy every

parcel of so-called non-occupied land in the world and bring it under their proper

sovereignty.108 The industrial revolution, better transport infrastructure, and a new

dimension of international trade fuelled this development and exponentially

patronised the players at the forefront of industrialisation.109 Land all over the

101 Emer de Vattel, Le droit des gens ou principes de la loi naturelle, appliques a la conduite et auxaffaires des nations et des souverains, London 1758, at § 209.102 Ibid., at § 81.103 Ibid., at §§ 81 and 209.104 At the Berlin Conference of 1885, the term terra nullius was officially used to describe the

situation in Sub-Saharan Africa, which was divided between the European nations in complete

ignorance of the existence of the African nations. Monika Ludescher, Menschenrechte undindigene Volker, Frankfurt am Main and New York: P. Lang, 2004, at p. 40. On the application

of the terra nullius doctrine in Australia, see Shelley Wright, ‘Aboriginal cultural heritage in

Australia’ (1995) University of British Columbia Law Review, 45, pp. 45–68, at p. 53.105 Sybil M. Jack, ‘The “debatable lands”, terra nullius, and natural law in the sixteenth century’

(2004) Northern History, 41 (2), pp. 289–300, at p. 289.106 Ibid.107 See for detail, Alfred Verdross, ‘Die Entwicklung des Volkerrechts’, in Golo Mann (ed.),

Propylaen Weltgeschichte: Eine Universalgeschichte, vol. 8, Frankfurt, etc.: Ullstein GmbH.,

1960, pp. 673–701, at p. 677.108 Geoffrey Barraclough, ‘Europaisches Gleichgewicht und Imperialismus’, in Golo Mann (ed.),

Propylaen Weltgeschichte: Eine Universalgeschichte, vol. 8, Frankfurt, etc.: Ullstein GmbH,

1960, pp. 705–739, at p. 714.109 Ibid., at pp. 706 and 714–716.


world that was not yet occupied by one of the recognised power nations was treated

as terra nullius, and peoples previously living on such land voluntarily or involun-

tarily became integrated into the power systems of the states that conquered or

negotiated the land.

The discovery doctrine confirmed the theory and applied European notions of

land ownership and sovereignty over possessions and structures of indigenous

peoples living on the discovered land.110 The new governments and courts thereby

struggled between creating land reserves for indigenous peoples on the one hand

and absorbing aboriginal titles into the settlers’ society by extinguishing self-

determined aboriginal existence and property on the other. Yet, in fact and

irrespective of the disputes in theory and practice, territories of ‘wild peoples’

had disappeared in most parts from the international map by the end of the

nineteenth century. The dichotomy between western and indigenous societies was

resolved into a subordination of indigenous traditions under the primacy of official

states’ policies and laws. Culminating in the 1919 Covenant of the League of

Nations after World War I, international law authoritatively affirmed this superior-

ity of the Member States over their native inhabitants and condoned assimilation,

integration, and eradication policies vis-a-vis indigenous peoples.111 Positivist law

theories ultimately helped to legally cement the status quo and the non-status of

aboriginal or indigenous peoples for another century.112 Still, in 1960, the

decolonisation wave triggered by the UN Declaration on the Granting of Indepen-

dence to Colonial Countries and Peoples of 14 December 1960 ignored the

pre-existence of indigenous peoples.113

However, indigenous peoples themselves have never ceased to remember their

status as independent nations before and in the early periods of colonisation, and

they have never completely suspended efforts to gain recognition as such.114

110 For the United States, see the Supreme Court decisions Johnson v M’Intosh (1823) 21 US

543 (8 Wheat), at p. 573, Marshall J (asserting United States authority over and title to indigenous

lands); Goldberg, ‘Law and legislation: Overview’, supra note 32, at pp. 449–450; and Michael

C. Blumm, ‘Retracting the discovery doctrine: Aboriginal title, tribal sovereignty, and their

significance to treaty-making and modern natural resources policy in Indian country issues’

(2004) Vermont Law Review, 28 (3), pp. 713–777, at p. 714. See also Robert J. Miller and Jacinta

Ruru, ‘An indigenous lens into comparative law: The doctrine of discovery in the United States

and New Zealand’ (2008) West Virginia Law Review, 111, pp. 849–918, at p. 850.111 1919 Covenant of the League of Nations (adopted on 29 April 1919, entered into force

10 January 1920), especially Articles 22 and 23. Luis Rodrıguez-Pinero, Indigenous peoples,postcolonialism, and international law: The ILO regime (1919–1989), Oxford New York: Oxford

University Press, 2005, at pp. 18–22.112 Vrdoljak, International law, museums and the return of cultural objects, supra note 5, at

pp. 70–72 and 74–82.113 UN Declaration on the Granting of Independence to Colonial Countries and Peoples, General

Assembly Resolution, (UN Doc. A/RES/1514 (XV)) (adopted on 14 December 1960).114 Victoria Tauli-Corpuz, Chair of the UN Permanent Forum on Indigenous Issues (UNPFII),

recalled the trips of the Native American Chief Deskaheh of the Cayuga tribe in 1923, and the

Maori leader W.T. Ratana in 1925 to the League of Nations as historic attempts to ‘get the ears of


Today, indigenous peoples are teaming up beyond tribal structures and national

boarders spurred by the globalised possibilities of transport and media.115 They

cooperate with human rights activists, NGOs, scientists, and state governments that

share common interests such as the protection of cultural diversity or the protection

of the environment.116 For these partners, indigenous peoples’ difficulties exem-

plify the negative effects of unrestricted trade and global society hyperstructures on

regional self-sufficiency.117 The analysis of their situation helps to develop cultural

argumentation in the discussion about pluricultural versus uniform, harmonised

settings.118 Indigenous peoples, in turn, profit from the proponents of cultural

diversity bringing indigenous claims to the attention of an international public.

At the same time, many signs of a changed official attitude vis-a-vis indigenous

issues have occurred. States have started to officially admit to a misunderstanding

and mistreatment of indigenous cultures and to apologise. In Canada, the govern-

ment formally apologised in 1998 (reaffirmed by Canada’s Prime Minister in 2008)

for the Indian residential schools system as a long-running effort to wipe out

aboriginal culture and assimilate native Canadians into European-dominated soci-

ety.119 In Australia, the government officially apologised in 2008 through its Prime

Minister to all Aborigines for laws and policies that inflicted profound grief,

suffering, and loss, especially forcible removal of children from their families.120

In 2010, the United States also apologised to Native American tribes in a

the international community’. Victoria Tauli-Corpuz, ‘Statement of Victoria Tauli-Corpuz, chair

of the UN Permanent Forum on Indigenous Issues on the occasion of the adoption of the UN

Declaration on the Rights of Indigenous Peoples’, (13 September 2007), available at http://social.

un.org/index/IndigenousPeoples/DeclarationontheRightsofIndigenousPeoples.aspx.115Mira Burri-Nenova, ‘The long tail of the rainbow serpent: New technologies and the protection

and promotion of traditional cultural expressions’, in Christoph B. Graber and Mira Burri-Nenova

(eds), Intellectual property and traditional cultural expressions in a digital environment,Cheltenham UK and Northampton MA: Edward Elgar, 2008, at pp. 229–230; and Mira Burri,

‘Digital technologies and traditional cultural expressions: A positive look at a difficult relation-

ship’ (2010) International Journal of Cultural Property, 17, pp. 33–63, at pp. 35–36.116 Rosemary J. Coombe, ‘Legal claims to culture in and against the market: Neoliberalism and the

global proliferation of meaningful difference’ (2005) Law, Culture and the Humanities, 1,

pp. 35–52, at pp. 47–49 [hereinafter Coombe, ‘Legal claims to culture’].117 Gunther Teubner and Andreas Fischer-Lescano, ‘Cannibalizing epistemes: Will modern law

protect traditional cultural expressions?’, in Christoph B. Graber and Mira Burri-Nenova (eds),

Intellectual property and traditional cultural expressions in a digital environment, CheltenhamUK and Northampton MA: Edward Elgar, 2008, pp. 17–45, at pp. 27–29.118 Coombe, ‘Legal claims to culture’, supra note 116, at pp. 49–52.119 Anthony De Palma, ‘Canada’s indigenous tribes receive formal apology’, New York Times(8 January 1998), available online at http://www.nytimes.com/1998/01/08/world/canada-s-indige

nous-tribes-receive-formal-apology.html?pagewanted¼all&src¼pm.120 ‘Australia apology to Aborigines’, BBC News (13 February 2008), available online at http://

news.bbc.co.uk/2/hi/7241965.stm.


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congressional resolution, for ill-conceived policies and acts of violence against

them.121 Even though the apology is an instrument without legal effect, it portrays a

strong symbol that helps to ‘temper fears and a sense of grievance’ and build

bridges that allow new ways to be found for resolving disputes.122

Finally, the political and economic activities of indigenous peoples have cele-

brated impressive successes at national as well as international levels. Bolivia, for

example, elected the indigenous state president Evo Morales in 2006.123 Australia

elected the Aborigine Michael Dodson as Australian of the year in 2009. The Native

American casino industry in the United States developed into a business of billions

and became an indigenous economic milestone.124 Famous successes for indige-

nous peoples’ cultural property claims were the return of the Australian Uluru-

Kata-Tjuta National Park (including the famous Uluru rock) into the hands of the

Aborigines in 1985125 and the First Nations’ active participation in the opening

ceremonies at the Olympic Games 2010 in Vancouver, which went far beyond

folkloristic scenery.126

2.3.1.1 Indigenous Peoples’ International Human Rights Status

The new international awareness of indigenous peoples has slowly become

reflected in international law. The first convention that addressed indigenous

peoples was the ILO Convention No. 107 concerning the Protection and Integration

of Indigenous and Other Tribal and Semi-Tribal Populations in Independent

Countries of 1957 (ILO Convention 107).127 Despite the continuing promotion of

the colonial assimilation and integration approach, it pinpointed a new concept of

indigenous peoples and constituted a clear sign for the survival of these

121 ‘US apologizes to American Indians for mistreatment’, The Economic Times, (20 May 2010),

available online at http://articles.economictimes.indiatimes.com/2010-05-20/news/27611693_1_

apology-tribes-brownback.122 Paul L. A. H. Chartrand, ‘Reconciling indigenous peoples’ sovereignty and state sovereignty’

AIATSIS, Research Discussion Paper No. 26 (2009), available at http://www.aiatsis.gov.au/

research/discussion.html.123 ‘Huldvoller Amtsantritt von Evo Morales in Bolivien’, Neue Zurcher Zeitung (23 January

2006), at p. 1.124 Gerd Bruggemann, ‘Jedem Hauptling sein Kasino’, NZZ am Sonntag (15 January 2006), p. 9;

and ‘American Indians: Gambling on nation-building’, The Economist (7 April 2012) (electronic

version) [hereinafter Gambling, The Economist].125 Rene Vautravers, ‘Tourismus als Chance fur die Aborigines’, Neue Zurcher Zeitung (8 January2010), at p. 9.126 For a critical voice, see Helena Nyberg, ‘Skizirkus auf gestohlenem Land’, Neue ZurcherZeitung (6 February 2010), at p. 11.127 ILO Convention No. 107 concerning the Protection and Integration of Indigenous and Other

Tribal and Semi-Tribal Populations in Independent Countries, 328 UNTS 24 (adopted on 26 June

1957, entered into force 2 June 1959).


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http://www.aiatsis.gov.au/research/discussion.html


communities at the periphery of international law.128 Half a century later, this little

seed had grown to a flower of international human rights activities and law that

created a new international human rights status in international law.

In 1982, the UN Economic and Social Council established the Working Group

on Indigenous Populations (UN Working Group). It was entrusted with the task of

drafting a declaration on indigenous peoples’ rights.129 In 1989, the ILO adopted

the second ILO Convention No. 169 concerning Indigenous and Tribal Peoples in

Independent Countries (ILO Convention 169).130 Thereby, international law for the

first time acknowledged the rights of indigenous peoples as tribes that ‘distinguish

them from other sections of the national community, and whose status is regulated

wholly or partially by their own customs or traditions or by special laws or

regulations’.131 In 1993, the UN General Assembly proclaimed the International

Decade of the World’s Indigenous People (1995–2004) with the theme ‘Indigenous

people: partnership in action’.132 In 2000, the UN Economic and Social Council set

up the UN Permanent Forum on Indigenous Issues (UNPFII),133 and in 2001 the

Commission on Human Rights (today replaced by the Human Rights Council)134

appointed the first Special Rapporteur on the Situation of the Human Rights and

Fundamental Freedoms of Indigenous People.135 The second International Decade

of the World’s Indigenous People commenced on 1 January 2005.136

Ultimately, after more than two decades of debate, the work of the UN

institutions culminated in the adoption of the UN Declaration on the Rights of

Indigenous Peoples (UNDRIP)137 by the UN General Assembly on 13 September

2007 in New York. UNDRIP is non-binding but nevertheless developed as a most

128 Rodrıguez-Pinero, supra note 111, at pp. 18–22 and 115–206; and Federico Lenzerini, ‘The

trail of broken dreams: The status of indigenous peoples in international law’, in Federico

Lenzerini (ed.), Reparations for indigenous peoples: International and comparative perspectives,Oxford: Oxford University Press, 2008, pp. 73–116, at pp. 80–82.129 UN, Economic and Social Council, ‘Study of the problem of discrimination against indigenous

populations’, Resolution, (UN Doc. E/RES/1982/34, 7 May 1982).130 ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries,

1659 UNTS 383 (adopted on 27 June 1989, entered into force 5 September 1991).131 ILO Convention 169, Article 1 para. 1. See infra note 146.132 UN, General Assembly, ‘International Decade of the World’s Indigenous People’, Resolution,(UN Doc. A/RES/48/163, 21 December 1993).133 UN, Economic and Social Council, ‘Establishment of a Permanent Forum on Indigenous

Issues’, Resolution, (UN Doc. E/RES/2000/22, 28 July 2000).134 UN, General Assembly, ‘Human Rights Council’, Resolution, (UN Doc. A/RES/60/251,

3 April 2006).135 UN, Commission on Human Rights, ‘Human rights and indigenous issues’, Resolution,(UN Doc. E/CN.4/RES/2001/57, 24 April 2001).136 UN, General Assembly, ‘Second International Decade of the World’s Indigenous People’,

Resolution, (UN Doc. A/RES/59/174, 24 February 2005).137 UN Declaration on the Rights of Indigenous Peoples, General Assembly Resolution 61/295

(UN Doc. A/61/L.67 and Add.1) (adopted on 13 September 2007) [hereinafter UNDRIP].


important reference in assessing indigenous peoples’ claims.138 Since then, the

Human Rights Council has established The Expert Mechanism on the Rights of

Indigenous Peoples as a subsidiary body of the Council. It provides thematic advice

to the Council in the form of studies and research on the rights of indigenous

peoples and makes proposals to the Council for its consideration and approval.139

Also beyond the ILO and the UN, several internationally important organisations

such as UNESCO, WIPO, and the WTO have started to take note of indigenous

peoples’ claims.140

The new international status of indigenous peoples allows them to actively

participate in the international organisations and goes hand in hand with the

expansion of the international right of peoples to self-determination to include

indigenous peoples. The right is stated in the international UN Bill of Rights and

in a non-binding capacity in UNDRIP, as will be outlined in more detail below.141

These developments should, however, not conceal the fact that neither the new

status of indigenous peoples in international human rights law nor the human right

to self-determination on behalf of indigenous peoples creates, as such, international

subjectivity for them or the international capacity to bring an action.142 No written

international law exists that would support such an assertion, and the grounds to

establish an international customary law or an international general legal principle

that would constitute such international subjectivity are insufficient.143 Indigenous

peoples’ new international status thus remains tightly bound to the bodies and legal

instruments that explicitly address their issues and define their role and rights.

2.3.1.2 International Endeavours to Define Indigenous Peoples

The new international status of indigenous peoples raises the crucial and most

difficult question as to what groups, communities, or nations shall qualify as

indigenous peoples in an international sense. In 1986, in his UN-sponsored Study

138 For more details, see infra Sect. 4.1.1.139 UN, Human Rights Council, ‘Expert Mechanism on the Rights of Indigenous Peoples’,

Resolution, (UN Doc. A/HRC/RES/6/36, 14 December 2007).140 Christoph B. Graber, ‘Traditional cultural expressions in a matrix of copyright, cultural

diversity and human rights’, in Fiona Macmillan (ed.), New directions in copyright law, vol. 5,Cheltenham UK and Northampton MA: Edward Elgar, 2007, pp. 45–71, at pp. 52–55; and

Christoph B. Graber, ‘Institutionalization of creativity in traditional societies and in international

trade law’, in Shubha Ghosh and Robin P. Malloy (eds), Creativity, law and entrepreneurship,Cheltenham UK and Northampton MA: Edward Elgar, 2011, pp. 234–263, at pp. 244–248

[hereinafter Graber, ‘Institutionalization of creativity’].141 See infra section ‘The Right to Self-determination [Article 1(1) CCPR and CESCR]’.142 Gudmundur Alfredsson, ‘Indigenous populations, protection’, in Rudolf Bernhardt (ed.), Ency-clopedia of public international law, vol. 2, Amsterdam, etc.: Elsevier, 1995, at pp. 946–951; and

Gudmundur Alfredsson, ‘Indigenous populations, treaties with’, in ibid., at pp. 951–953.143 Kerstin Asmuss, Anspruche indigener Volker auf Ruckfuhrung rechtswidrig ausgefuhrtenKulturgutes, Hamburg: Nomos, 2011, at pp. 133–159.



of the Problem of Discrimination against Indigenous Populations, Jose M. Cobo

brought forth the following definition144:

Indigenous communities, peoples and nations are those which, having a historical continu-

ity with pre-invasion and pre-colonial societies that developed on their territories, consider

themselves distinct from other sectors of the societies now prevailing in those territories, or

parts of them. They form at present non-dominant sectors of society and are determined to

preserve, develop and transmit to future generations their ancestral territories, and their

ethnic identity, as the basis of their continued existence as peoples, in accordance with their

own cultural patterns, social institutions and legal systems.

The definition contains objective elements (pre-colonial existence with historic

continuity) and subjective elements (self-conception of being indigenous) and

emphasises the determination of indigenous peoples to keep alive their cultural

identity by safeguarding indigenous cultural continuity and diversity.

Cobo’s definition has proved to be most influential in theory but has remained a

pure working definition in practice.145 The ILO Convention 169, for example,

contains a separate definition of indigenous peoples.146 UNDRIP again deliberately

abstained from immersing itself in the complex task of defining indigenous peoples.

The UN Working Group considered a working definition but finally followed the

advice of Special Rapporteur Erica-Irene Daes, who suggested that ‘justice would

best be served by allowing the scope of this concept to evolve’ without any

144UN, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and

Protection of Minorities, Special Rapporteur Jose M. Cobo, ‘Study of the problem of discrimina-

tion against indigenous populations, volume V: Conclusions, proposals and recommendation’,

(UN Doc. E/CN.4/Sub.2/1986/7/Add.4, UN Sales No. E.86.XIV.3, 1987), at p. 29, paras 362–282.

The study was launched in 1972 and was completed in 1986, based on 37 monographs.145 See, for example, Christoph B. Graber, ‘Stimulating trade and development of indigenous

cultural heritage by means of international law: Issues of legitimacy and method’, in Christoph

B. Graber, et al. (eds), International trade in indigenous cultural heritage: Legal and policy issues,Cheltenham UK and Northampton MA: Edward Elgar, 2012, pp. 3–30, at p. 13; and John Scott and

Federico Lenzerini, ‘International indigenous and human rights law in the context of trade in

indigenous cultural heritage’, in Christoph B. Graber, et al. (eds), International trade in indigenouscultural heritage: Legal and policy issues, Cheltenham UK and Northampton MA: Edward Elgar,

2012, pp. 61–87, at pp. 63–64.146 ILO Convention 169, Article 1, para. 1, reads as follows:

‘This Convention applies to:

(a) Tribal peoples in independent countries whose social, cultural and economic

conditions distinguish them from other sections of the national community, and whose

status is regulated wholly or partially by their own customs or traditions or by special laws

or regulations;

(b) Peoples in independent countries who are regarded as indigenous on account of their

descent from the populations which inhabited the country, or a geographical region to

which the country belongs, at the time of conquest or colonization or the establishment of

present State boundaries and who, irrespective of their legal status, retain some or all of

their own social, economic, cultural and political institutions.’


definition.147 Other relevant international conventions for indigenous peoples’

cultural property claims, such as the UNIDROIT Convention on Stolen or Illegally

Exported Cultural Objects of 24 June 1995 (UNIDROIT Convention 1995)148 or

the UNESCO Conventions 2003 and 2005,149 mention indigenous peoples but

without defining them or referring to any definition. The parties that negotiated

the UNIDROIT Convention 1995 considered a reference to Article 1 of the ILO

Convention 169 but finally decided not to specify ‘indigenous or tribal

community’.150

One reason for such scepticism vis-a-vis a definition of ‘indigenous peoples’ is

rooted in the fear that this would divest indigenous peoples of the possibility to

define themselves. A definition could also be too narrow to capture the full diversity

of the world’s indigenous peoples.151 The lack of a general definition, however, has

several detrimental effects. The debate rises up anew every time an international

standard is created or a case is to be decided. International law on behalf of

indigenous peoples may become inconsistent with regard to the beneficiaries. A

legal instrument may even become toothless, since the scope of application is not

sufficiently pinned. Or state governments may adopt their own characterisations of

indigenous peoples and thereby circumvent the duties laid down in the legal

instrument. This happened, for example, when Indonesia and India both declared

that UNDRIP was not relevant to their states since they would not have ‘indigenous

peoples’ in the sense of the Declaration.152

As a way out of the dilemma, scholars suggest working instead with

characteristics that accommodate different situations and the specific indigenous

communities in question. Daes suggested, for example, that the following

characteristics should determine who are indigenous peoples: (a) priority in time,

with respect to a specific territory; (b) voluntary perpetuation of cultural distinc-

tiveness; (c) self-identification, as well as recognition by other groups or by state

authorities; and (d) an experience of subjugation, marginalisation, dispossession,

147 UN, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and


enous peoples: Protection of the heritage of indigenous people’, Final Report, (E/CN.4/Sub.2/1995/26, 21 June 1995), at pp. 4–5, para. 18 [hereinafter Daes, Final Report 1995].148 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 34 ILM 1322

(adopted on 24 June 1995, entered into force 1 July 1998) [hereinafter UNIDROIT Convention

1995].149 On the conventions, see infra sections ‘UNESCO Convention 2003’ and ‘UNESCO Conven-

tion 2005’.150Marina Schneider, ‘1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural

Objects: Explanatory report prepared by the UNIDROIT Secretariat’ (2001) Uniform Law Review,61, pp. 476–564, at p. 514.151 Scott and Lenzerini, supra note 145, at p. 65.152 Ibid.


exclusion, or discrimination.153 The Committee of the Rights of Indigenous Peoples

of the International Law Association (ILA)154 further developed this suggestion and

defined the following criteria155:

a) self-identification: self-identification as both indigenous and as a people;

b) historical continuity: common ancestry and historical continuity with pre-colonial

and/or pre-settler societies;

c) special relationship with ancestral lands: having a strong and special link with the

territories occupied by their ancestors before colonial domination and surrounding

natural resources. Such a link will often form the basis of the cultural distinctiveness

of indigenous peoples;

d) distinctiveness: having distinct social, economic or political systems; having distinct

language, culture, beliefs and customary law;

e) non-dominance: forming non-dominant groups within the current society;

f) perpetuation: perseverance to maintain and reproduce their ancestral environments,

social and legal systems and culture as distinct peoples and communities.

The criteria of Daes and the ILA (similar to the definition of Cobo) both contain

self-identification, ancestral territories, distinctiveness, and continuity as the main

elements for describing indigenous peoples. However, these criteria alone would

apply to many western, industrialised communities in the old world as well, which

are not truly ‘indigenous’ in an international sense. That is why only the reference

to a history of colonisation or what Daes describes as subjugation, marginalisation,

dispossession, exclusion, or discrimination may uphold the human rights back-

ground of indigenous peoples’ (human) rights. The Cobo definition and, even more,

the ILA descriptions allow a broader interpretation and a more future-orientated

view for protecting indigenous peoples’ way of life beyond redemption measures.

The danger of such open wording would be a wrongful application or the abuse of

the beneficial human rights regulations on behalf of indigenous peoples.

153 UN, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and

Protection of Minorities, Chairperson-Rapporteur Erica-Irene Daes, ‘Standard setting activities:

Evolution of standards concerning the rights of indigenous peoples’,Working paper on the conceptof indigenous peoples, (UN Doc. E/CN.4/Sub2/AC.4/1996/2, 10 June 1996), at para 69. See

Asmuss, supra note 143, at pp. 38–39.154 The International Law Association (ILA) was founded in Brussels in 1873. Its objectives under

its Constitution are ‘the study, clarification and development of international law, both public and

private, and the furtherance of international understanding and respect for international law’. The

ILA has consultative status, as an international non-governmental organisation (NGO), with a

number of UN specialised agencies. See ‘International Law Association’, available at http://www.

ila-hq.org.155 International Law Association (ILA), Committee of the Rights of Indigenous Peoples, ‘Interim

Report’, The Hague Conference, 2010, at pp. 7–8; and Scott and Lenzerini, supra note

145, at p. 66.


http://www.ila-hq.org/


2.3.1.3 The Definition of Indigenous Peoples at a National Level

In General

As long as international definitions of indigenous peoples ignore local realities and

state-internal indigenous peoples’ policies and practices, they remain theoretical.

The cooperation of national states and their acknowledgement of communities as

indigenous peoples are essential. Thereby, it is important to take into account that

already terminology is inconsistent worldwide. This becomes obvious in the

Operations Manual on Indigenous Peoples 2005 of the World Bank, which contains

policies on the conduct of the Bank’s operations. The Manual provides explicit

reminders that indigenous peoples may be attributed different terms in different

countries, such as ‘indigenous ethnic minorities’, ‘aboriginals’, ‘hill tribes’, ‘minor-

ity nationalities’, ‘scheduled tribes’, or ‘tribal groups’.156

In the following, the United States serves as an example of how countries, at the

national and local levels, legally deal with determining their indigenous peoples. In

the United States, the rule of law has been sufficiently dominant to provide

abundant statutory and common laws on defining and officially recognising Ameri-

can ‘indigenous peoples’.

In the United States

The American indigenous peoples are the ‘Native Americans’ or ‘American

Indians’, including Alaska Natives and Native Hawaiians.157 The number of Native

Americans who live in a tribe on ‘Indian country’158 is drastically declining.

Seventy-five percent of the Native American population left reservations in the

last quarter of the twentieth century and moved to urban settings.159 Many Native

156 The World Bank, ‘Indigenous peoples’, Operational manual, (OP 4.10, July 2005), Article 3.157 This book will predominantly use the term ‘Native American’, since it is the term that the

United States legislator used in NAGPRA. On the difficulty with regard to terminology, see

Christina Berry, ‘What’s in a name? Indians and political correctness’, All Things Cherokee,available at http://www.allthingscherokee.com/articles_culture_events_070101.html.158 ‘Indian country’ refers to a puzzle of complex legal questions of land rights and includes Indian

reservations, dependent Indian communities, trust allotments, trust land, and land claims settle-

ment lands. See Larry Long and Clay Smith, American Indian law deskbook: Conference ofwestern attorneys general, 4th edn, Boulder Colo.: University Press of Colorado, 2008, at

pp. 68–78.159 Imre Sutton, ‘Indian land tenure in the twentieth century’, in Duane Champagne (ed.), Thenative North American almanac: A reference work on native North Americans in the United Statesand Canada, Detroit Mich.: Gale Research, 1994, pp. 216–223, at pp. 216 and 220. On the

urbanisation tendency, see also Dorothy L. Miller, ‘Non-reservation Indians in the United States’,

in Duane Champagne (ed.), The native North American almanac: A reference work on nativeNorth Americans in the United States and Canada, Detroit Mich.: Gale Research, 1994,

pp. 605–615.


http://www.allthingscherokee.com/articles_culture_events_070101.html

Americans thereby integrated into modern United States’ society. Only about

150 of the hundreds of Native American languages survived.160 Nevertheless, the

Native American issue has not lost actuality in the United States. The Department

of the Interior still provides services to 1.9 million Native Americans and Alaskan

Natives from 566 federally recognised American Indian tribes and Alaska Natives

in the United States. The Bureau of Indian Affairs (BIA) is responsible for the

administration and management of 55 million surface acres and 57 million acres of

subsurface mineral estates held in trust by the United States for American Indian,

Indian tribes, and Alaska Natives.161 Furthermore, 2,475,956 persons in the United

States identify themselves as one-race Native American; 4,119,301 persons say

they are either one-race or multiple-race Native American; and 7,876,568 persons

claim Native American ‘ancestry or ethnic origin’.162

Legally, the relations with Native Americans have developed into a complex

body of federal American Indian law, which reflects numerous shifts in the federal

Indian policies. This has scattered the law into all kinds of contradicting directions

over time.163 It is against this background that one has to reflect the actual relevant

legal definition and recognition of Native Americans and Native American tribes in

the United States.

Native Americans

In 1924, Congress granted United States citizenship to Native Americans regardless

of their desire or consent.164 At the same time, it continued to recognise their

separate status as Native Americans and members of Native American tribes.165 No

all-purpose definition of a Native American exists, but the lower federal and states’

courts developed a common legal two-prong test for identifying Native Americans

(for example, to determine jurisdiction regarding a criminal offence committed

between Indians or on Indian country).166 According to the first prong, a Native

American has (1) ‘some’ Indian blood.167 In order to comply with this prerequisite,

160 Gambling, The Economist, supra note 124.161 United States, Department of the Interior, Indian Affairs, ‘Who we are’, (last updated 5 May

2012), available at http://www.bia.gov/WhoWeAre/index.htm.162 Long and Smith, supra note 158, at p. 48, referring to United States Census Bureau,

Census 2000.163 Goldberg, ‘Law and legislation: Overview’, supra note 32.164 Indian Citizenship Act of 1924, 8 U.S.C. § 1401(b).165 Carole Goldberg, ‘A United States perspective on the protection of indigenous cultural

heritage’, in Christoph B. Graber, et al. (eds), International trade in indigenous cultural heritage:Legal and policy issues, Cheltenham UK and Northampton MA: Edward Elgar, 2012,

pp. 331–361, at p. 334.166 See, for example, United States v Rogers (1846) 45 US (4 How) 567.167 In Morton v Mancari (1974) 417 US 535, the Court had to decide whether this ancestral blood

requirement is a ‘reverse racial discrimination’ to the detriment of non-Native American persons

who are interested in profiting from the preferences of the regulations in question. The Court


http://www.bia.gov/WhoWeAre/index.htm

courts commonly, but not always, consider a one-eighth quantum of Indian blood

sufficient.168 Moreover, a Native American must be (2) ‘recognised’ as an Indian by

a tribe or the Federal Government.169 The enrolment as a member of a tribe is an

indication for the second prong yet not an absolute requirement for recognition.170

Both prongs thus leave abundant space for interpretation.

Next to common law, various legal statutes define the term ‘Indian’ for their

purposes, such as the Indian Reorganization Act of 1934 (IRA).171 The Act aimed

at protecting the land base of the tribes and allowed tribes to maintain legal

structures of self-government.172 It reversed the previous allotment and assimila-

tion policy, which reduced Indian-held land from 138 million acres in 1887 to

48 million in 1934.173 In its section 19, the IRA defines ‘Indians’ as follows:174

The term ‘Indian’ as used in this Act shall include all persons of Indian descent who are

members of any recognized Indian tribe now under Federal jurisdiction, and all persons

who are descendants of such members who were, on June 1, 1934, residing within the

present boundaries of any Indian reservation, and shall further include all other persons of

one-half or more Indian blood. For the purposes of this Act, Eskimos and other aboriginal

peoples of Alaska shall be considered Indians.

In contrast to the common law definition, the IRA provides three alternative

features that qualify an Indian: recognition, descent of a reservation resident, or

blood. It does not necessarily require tribal membership or eligibility for member-

ship, as many other federal statutes do.175

In the specific context of cultural property, the key statute in the United States is

the Native American Graves Protection and Repatriation Act (NAGPRA),176 which

will be the focus later in this book. NAGPRA defines ‘Native American’ as

legitimated the criterion as having political purpose to further the right of self-government of

federally recognised Native American tribes. It, however, denied the same argument with regard to

Native Hawaiians in Rice v Cayetano (2000) 528 US 495. See Rose C. Villazor, ‘Blood quantum

land laws and the race versus political identity dilemma’ (2008) California Law Review, 96,pp. 801–838.168 Long and Smith, supra note 158, at p. 51.169 Ibid., at pp. 50–51, referring to several lower federal and state court cases, the most recent ones

being United States v Pemberton (2005) 405 F3d 656, 660 (8th Cir); and United States v Bruce(2005) 394 F3d 1215, 1223 (9th Cir).170 Long and Smith, supra note 158, at p. 52.171 Indian Reorganization Act of 1934 (IRA), 25 U.S.C. §§ 461–479.172William C. Canby, American Indian law in a nutshell, 4th edn, St. Paul Minn.: West Group,

2004, at p. 24.173 Ibid., at p. 22.174 IRA, 25 U.S.C. § 479.175 For example, 20 U.S.C. § 1401(a)(24)(B); 25 U.S.C. §§ 450b(d), 1452(b), 1801(1) and 1903(3);

and 42 U.S.C. § 3002(5).176 Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), 25 U.S.C.

§§ 3001–3013, 18 U.S.C. § 1170.


meaning ‘of, or relating to, a tribe, people, or culture that is indigenous to the United

States’.177

Native American Tribes

More important for Native American cultural property repatriation claims, how-

ever, is the definition of Native American or Indian tribes. Under NAGPRA, the

tribes are the parties that are entitled to claim the rights provided in the Act.178

Individual Native Americans can only directly claim human remains.179

The endeavours to define Indian tribes in the United States are highly influenced

by the fierce battle of the Native Americans to remain separate, self-determined

entities. In this controversy, Chief Justice Marshall laid the first important legal

milestone. In 1831, in the case Cherokee Nation v State of Georgia, he held that a

Native American tribe is a ‘domestic dependent nation’ and its relationship to the

United States is that of a ‘ward to his guardian’.180 In 1901, the Supreme Court

added a description, according to which, tribes are ‘a body of Indians of the same or

a similar race, united in a community under one leadership or government,

inhabiting a particular though sometimes ill-defined territory’.181 It thereby also

clearly stated that tribes ‘do not, and never have, constituted “nations” as that word

is used by writers upon international law’.182

Today, the struggling has been resolved in a pragmatic approach. The BIA keeps

and regularly publishes a list of ‘federally recognised’ Indian tribes that are eligible

to benefit not only from United States’ federal policy on tribal self-determination

but also from the array of services attributed to tribes.183 Since 1978, the process of

such federal recognition has been governed by the Office of Federal Acknowledge-

ment (OFA) within the Department of the Interior.184 In determining which group

qualifies as a federally recognised Indian tribe, the Office applies criteria including

identification as a Native American entity on a substantially continuous basis since

1900, distinct community and political influence, and authority over tribal members

177 NAGPRA, 25 U.S.C. § 3001(2)(9). On the question of whether a 9,000-year-old skeleton

qualifies as Native American under NAGPRA, see infra Sect. 3.2.178 Apart from the Indian tribes, NAGPRA contributes the same rights to Native Hawaiian

organisations. For the definition of Native Hawaiian and Native Hawaiian organisations, see

NAGPRA, 25 U.S.C. §§ 3001(2)(9) and (11).179 Under NAGPRA, human remains may be claimed by a ‘lineal descendant of the Native

American or of the tribe or organization’. NAGPRA, 25 U.S.C. § 3005(a)(1).180Cherokee Nation v State of Georgia (1831) 5 Peters 178, at p. 183 Marshall J.181Montoya v United States (1901) 180 US 261, at p. 266.182 Ibid., at p. 265.183 The list that was relevant in 2011 is published in the United States, Federal Register (75/190,

1 October 2010), at pp. 60810–60814. See on this list Goldberg, ‘A United States perspective on

the protection of indigenous cultural heritage’, supra note 165, at p. 336.184 On the recognition process by the Office of Federal Acknowledgement, see ibid.



from historical times until the present.185 The tribes must also not be terminated,

which principally disqualifies over 100 tribes. Terminations of Indian tribes took

place to a great extent between 1954 and 1964, when the United States policy aimed

at finishing the Indian status as wards of the United States.186 How many of the

enacted termination statutes remain effective is however unclear.187

Not only does the BIA recognise Native American tribes, but other federal

agencies also acknowledge the special status of Indian tribes for specific purposes.

Despite the United States federal Congress’ plenary authority over Indian affairs,

16 states have recognised more than 60 Indian tribes.188 The sources of such

recognition are treaties, statutes, executive or administrative orders, or the course

of dealing with the tribes as political entities.189 Historical and ethnological criteria

play a role, but the reality that different tribes were gathered into a common

reservation (and thus only recently formed a single tribe ) is also taken into

account.190

This multilayered definition and recognition system in the United States leads to

a situation that William C. Canby, Jr., describes as follows: ‘A group of Indians

may qualify as a tribe for the purpose of one statute or federal program, but fail to

qualify for others’.191

It is thus not surprising that for the specific purpose of Native American cultural

property repatriation claims, NAGPRA contains its own definition of Indian tribes,

which reads as follows:

‘Indian tribe’ means any tribe, band, nation, or other organized group or community of

Indians, including any Alaska Native village (as defined in, or established pursuant to, the

Alaska Native Claims Settlement Act) [43 U.S.C. 1601 et seq.], which is recognized as

eligible for the special programs and services provided by the United States to Indians

because of their status as Indians.

This wording stems verbatim from the American Indian Self Determination and

Education Act of 1975,192 which is carried out by the BIA. One would thus assume

that it refers to the BIA list of federally recognised tribes.193 However, the debate

on the provisions of NAGPRA’s Regulations made clear that the recognition of

Indian tribes under NAGPRA does not correspond with the BIA recognition

process. The Department of the Interior needed to clarify the situation and therefore

deleted any reference to the BIA process from NAGPRA’s Regulations. It stated

instead that the ‘NAGPRA list’ may contain all Indian tribes recognised as eligible

185 25 C.F.R. § 83.186 Long and Smith, supra note 158, at p. 66.187 Ibid.188 Ibid., at pp. 67–68.189 Canby, supra note 172, at p. 4.190 Ibid., at pp. 4–5.191 Ibid., at p. 4.192 NAGPRA, 25 U.S.C. § 450b.193 United States, Federal Register (60/232, 4 December 1995), at p. 62136.


for the special programmes and services provided by ‘any’ agency of the

United States.194

In summary, the recognition of Indian tribes in the United States is an interesting

concept but remains an ongoing issue in practice. Ad hoc recognition practices, as

well as the recognition process by the OFA, face fierce criticism from Native

American groups. The complaints against the OFA process in particular include

the claim that the criteria are inconsistently applied and politically influenced, that

the process places excessively heavy burdens of proof on petitioning tribes, that it

privileges documentary over oral historical evidence, and that it allegedly places

inordinate emphasis on ‘blood quantum’ to the exclusion of other indicators of

social cohesion.195 The process is held to be too costly and slow, as since 1978, out

of 300 notices of intent and petitions filed by tribes for federal recognition, only

17 had been granted and 29 had been denied by 2010.196 In view of the highly

intrusive invasion of colonisation that affected Native American tribes for decades

and centuries, it seems to be unrealistic to expect a patent solution for the redefini-

tion of United States’ indigenous peoples within just a few years.

2.3.1.4 Conclusions

Indigenous peoples have attained some kind of recognition mainly through interna-

tional human rights bodies and in their instruments.197 However, none of the

definitions’ endeavours with regard to indigenous peoples have established an

internationally recognised standard that would be relevant for their capacity to

bring an action. International law on indigenous peoples’ rights thus suffers from

the opening of a gap between the new status and a truly separate treatment of

indigenous peoples at international and national levels. The triangular relationship

between the international bodies, indigenous peoples, and states remains vague. In

consequence, national policies and laws on the definition and recognition of

indigenous peoples remain key.

The United States resolved the question of who Native Americans and Indian

tribes are, through a complex combination of legal definitions, as well as ad hoc and

institutionalised recognition procedures. The result is a less comprehensive and

flexible determination of American ‘indigenous peoples’ than suggested by the

definition endeavours at the international level.198 The system also suffers from

194 Ibid.195 Goldberg, ‘A United States perspective on the protection of indigenous cultural heritage’, supra

note 165, at pp. 337–339.196 Ibid.197 Patrick Macklem, ‘Indigenous recognition in international law: Theoretical observations’

(2008) Michigan Journal of International Law, 30, pp. 177–210.198 Goldberg, ‘A United States perspective on the protection of indigenous cultural heritage’, supra

note 165, at pp. 339–341.


several flaws and deficiencies. However, the federal recognition procedure of the

OFA especially provides a legal security, which allows it to efficiently respond to

the distinct claims and needs of the recognised tribes. It is a starting point for

enabling recognised Native American tribes to enforce their rights. This raises the

question of whether other countries, or even international organisations, could learn

from the United States system. Could, for example, an open international definition

combined with a formal recognition procedure governed by the UN possibly

advance solutions for indigenous peoples’ claims in general, and specifically with

regard to their cultural property?

2.3.2 Indigenous Cultural Property

An analysis of the expression ‘indigenous cultural property’ could form the subject

of a separate scientific study. The term ‘cultural property’ alone, especially if

disassembled in its elements ‘culture’ and ‘property’, is vast and disputed. In

brief, cultural property stands for tangible, moveable objects with cultural

implications. It became established as a standard after the Hague Convention for

the Protection of Cultural Property in the Event of Armed Conflict of 1954,199 as the

English translation of what had before been accepted as ‘biens culturels’ in France

or ‘beni culturali’ in Italy.200

An international, often referred to, definition of cultural property is contained in

Article 1 of the UNESCO Convention on the Means of Prohibiting and Preventing

the Illicit Import, Export and Transfer of Ownership of Cultural Property

(UNESCO Convention 1970).201 This international instrument is the key conven-

tion in international cultural property law.202 It includes any property considered

‘as being of importance for archaeology, prehistory, history, literature, art, or

science’. A long list of subcategories follows, ranging from rare collections and

specimens of fauna, property relating to history, products of archaeological

excavations, pictures, paintings and drawings, and rare manuscripts to articles of

furniture that are more than 100 years old and old musical instruments.203 Beyond

the Convention, however, the definition is of relevance only if the national or

international legal instrument specifically refers to it. There is no internationally

binding definition of cultural property. Similar to the debate about the definition of

199 On the Hague Convention 1954, see infra section ‘The Hague Conventions’ and note 87.200 Lyndel V. Prott and Patrick J. O’Keefe, ‘“Cultural heritage” or “cultural property”?’ (1992)

International Journal of Cultural Property, 1, pp. 307–320, at p. 312.201 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export

and Transfer of Ownership of Cultural Property, 823 UNTS 231 (adopted on 14 November 1970,

entered into force 24 April 1972) [hereinafter UNESCO Convention 1970].202 See infra section ‘UNESCO Convention 1970’.203 UNESCO Convention 1970, Article 1(a)–(k).


‘indigenous peoples’, it is even disputed whether a definition of cultural property is

desirable at all.204

Indigenous cultural property specifically includes all objects originating from

and created by indigenous peoples, such as masks, rattles, blankets, weavings,

weapons, pots, bags, jewellery, clothing, totem poles, ceremonial houses, canoes,

etc. An anthropological or social science language calls them ethnographic objects.

The art market generally uses the term ‘primitive art’. The UNESCO Convention

1970 definition is in many ways broad enough to cover indigenous peoples’ cultural

objects. However, as will be shown in the following, it is nevertheless far from

building an appropriate basis for indigenous peoples’ cultural property repatriation

claims. Neither terminology, nor rationale, nor categorisation principally suffice.

2.3.2.1 Indigenous Cultural Property or Cultural Heritage?

The definition of the UNESCO Convention 1970 predominantly represents

secularised and scientific values embedded in cultural objects.205 When listening

to indigenous peoples’ voices that describe their cultural property, it becomes clear

that indigenous peoples value their cultural property very differently.

Indigenous peoples emphasise the close connection of cultural objects to their

land, ancestors, and customs. The aspects of native culture represented in the

objects thereby fulfil distinctive functions and values. They are ‘sacred’ in this

sense.206 The creation of indigenous cultural property takes place through the

reactivation of the spiritual world by a creative person who was initiated by the

clan, rather than by human-centred and individualistic artists.207 The importance

204 For an overview on the discussion, see Kerstin Odendahl, Kulturguterschutz: Entwicklung,Struktur und Dogmatik eines ebenenubergreifenden Normensystems, Tubingen: Mohr Siebeck,

2005, at pp. 386–389; and Beat Schonenberger, Restitution von Kulturgut: Anspruchsgrundlagen,Restitutionshindernisse, Entwicklung, Bern: Stampfli, 2009, at pp. 43–51.205 In contrast to the UNESCO Convention 1970, the international definition of culture in the

UNESCO Mexico City Declaration on Cultural Policies of 1982 mentions spiritual features from

the outset when defining characterisation of a society or social group. UNESCO Mexico City

Declaration on Cultural Policies (UNESCO Doc. CLT/MD/1) (adopted on 6 August 1982),

Preamble.206 Rebecca Tsosie, ‘Who controls native cultural heritage?: “Art”, “artifacts”, and the right to

cultural survival’, in James A. R. Nafziger and Ann M. Nicgorski (eds), Cultural heritage issues:The legacy of conquest, colonization, and commerce, Leiden: M. Nijhoff Publishers, 2009,

pp. 3–36, at pp. 5–7; and Rebecca Tsosie, ‘International trade in indigenous cultural heritage:

An argument for indigenous governance of cultural property’, in Christoph B. Graber, et al. (eds),

International trade in indigenous cultural heritage: Legal and policy issues, Cheltenham UK and

Northampton MA: Edward Elgar, 2012, pp. 221–245, at pp. 226–228 [hereinafter Tsosie, ‘An

argument for indigenous governance of cultural property’].207 Christoph B. Graber, ‘Using human rights to tackle fragmentation in the field of traditional

cultural expressions: an institutional approach’, in Christoph B. Graber and Mira Burri-Nenova

(eds), Intellectual property and traditional cultural expressions in a digital environment,Cheltenham UK and Northampton MA: Edward Elgar, 2008, pp. 98–120, at pp. 111–112. See


and sacredness of objects arise from indigenous peoples’ spirituality or religion that

pervades every aspect of traditional indigenous peoples’ lives. Cultural objects are

inextricably linked with ceremony or any other religious ritual208 and thereby

provide ‘a definite conduit to the knowledge of the past and the future’.209 Sacred

or ceremonial objects may even possess their own spirits and independent lives.210

They receive spiritual power by creation or through their ancestors or rituals.211

Thereby, the primary goal is the avoidance of disturbing spirits in animate things,

rather than making maximum possible use of them for their material benefit.212

‘Ordinary’ objects may be sacred and thus cultural property in the view of the

original indigenous community. A stone mortar and pestle, for example, that

belonged to a medicine man ‘who used it to grind ceremonial plants and summon

spirits’ is cultural property to indigenous peoples.213

The transformation of the plant yam into indigenous cultural property by the

Abelam people, living in New Guinea, may exemplify this understanding. A main

part of the social and cultural life of these indigenous groups revolved around the

cultivation of the yam plant. Men devoted several months of the year to support the

growth of yams. After the harvest, the largest yams were decorated, with the

purpose of allowing the yam to incarnate a spirit of the ancestors. In the ceremonies

around the decorated yams, men could attain prestige and influence in the group.

The decorated yams were manifested in sculptures and other artistic works, which

served again to incarnate the yams’ spirits. The act of painting on the objects was

considered a sacred activity that rendered the objects powerful. The colours were

supposed to attract the spirits, and the objects thereby became materialised spirits.

At the same time, the painting was a joint activity and was believed to allow a

transfer of knowledge, which could not otherwise be communicated.214 Are such

yams ‘cultural property’ in the sense of the UNESCO Convention 1970?

An important insight gained from this view of interconnectedness of indigenous

cultural objects is that the tangible form of indigenous objects should, in principle,

not be separated from its intangible values. The latter ultimately determines

also Charles Lindholm, Culture and authenticity, Malden, MA and Oxford: Blackwell Publishing,

2008, at pp. 13–21.208 Patrick Walker and Clarine Ostrove, ‘The aboriginal right to cultural property’ (1995) U.B.C.Law Review, Special edition, pp. 13–28, at p. 20.209 Gii-dahl-guud-sliiaay (Terry-Lynn Williams), supra note 7, at p. 186.210 Gii-dahl-guud-sliiaay (Terry-Lynn Williams), supra note 7, at pp. 185–186.211 Graber, ‘Institutionalization of creativity’, supra note 140, at p. 237.212 Duane Champagne, ‘Indigenous self-government, cultural heritage, and international trade: A

sociological perspective’, in Christoph B. Graber, et al. (eds), International trade in indigenouscultural heritage: Legal and policy issues, Cheltenham UK and Northampton MA: Edward Elgar,

2012, pp. 31–58, at pp. 45–46 and 48–49.213 David Kelly, ‘Indians deciding artifacts’ fate. Some want to put relics on display. Others would

prefer to dispose of them according to tribal customs’, The Press-Enterprise (11 January 1998), atp. B01.214Marta Cometti, Il Museo delle Culture. Guida alla collezione, Lugano: Edizioni Citta di

Lugano/MCL, 2009.


whether an object has cultural meaning or not and thus whether it is cultural

property at all.215

Another argument that flows from the analysis of indigenous peoples’ perception

of cultural objects is that the word ‘property’ in ‘cultural property’ is, in principle,

not appropriate. It carries a legal and ideological load of goals and theories of

property law that stimulate the commoditisation of goods and thus overemphasise

their commercial value in comparison to the cultural manifestations inherent in

cultural objects.216

As a consequence, several authors argue that the term ‘cultural property’ should

be replaced by ‘cultural heritage’, which better epitomises the principal

non-divisiveness of cultural property into tangibles and intangibles and the neces-

sity to emphasise the cultural aspect of a cultural object in trade.217

However, at the moment and in the reality of a lawyer the term cultural property

is still decisive for localising the legal questions in the existing national and

international legal frameworks. Whereas property and cultural property law

regulates the relation to tangible cultural objects, the immaterial or intangible

values are guided by intellectual property law. The term cultural heritage law

thereby works as an umbrella for both areas of law and sometimes as a substitute

for the intellectual property aspects regulating intangible cultural values. However,

the use of the term cultural heritage in a study with a clear focus on cultural

objects—which this book is—would mislead the reader about the scope of the

study. It would be premature to retrace a possibly ongoing terminological shift.

2.3.2.2 Indigenous Cultural Property and Collective Property

A main feature of cultural property is that its cultural value has meaning to a

collective, a group of people, a social system, a nation, or mankind.218 Indigenous

peoples in particular do not view their heritage in terms of property at all but in

215 Tsosie, ‘Who controls native cultural heritage?: “Art”, “artifacts”, and the right to cultural

survival’, supra note 206, at pp. 6–7; and Tsosie, ‘An argument for indigenous governance of

cultural property’, supra note 206, at pp. 226–228.216 Prott and O’Keefe, ‘“Cultural heritage” or “cultural property”?’, supra note 200, at

pp. 309–310; and Lyndel V. Prott, ‘The international movement of cultural objects’ (2005)

International Journal of Cultural Property, 12, pp. 225–248, at p. 226.217 See, for example, ibid.; Daes, Final Report 1995, supra note 147, at para. 12; Rosemary

J. Coombe and Joseph F. Turcotte, ‘Indigenous cultural heritage in development and trade:

Perspectives from the dynamics of cultural heritage law and policy’, in Christoph B. Graber,

et al. (eds), International trade in indigenous cultural heritage: Legal and policy issues,Cheltenham UK and Northampton MA: Edward Elgar, 2012, pp. 272–305, at pp. 277–278; and

Peter K. Yu, ‘Cultural relics, intellectual property, and intangible heritage’ (2008) Temple LawReview, 81, pp. 1–59, at pp. 7–11.218 See, for example, Rosemary J. Coombe, ‘The properties of culture and the politics of

possessing identity: Native claims in the cultural appropriation controversy’ (1993) CanadianJournal of Law and Jurisprudence, 6 (2), pp. 249–285, at p. 258 [hereinafter Coombe, ‘The


terms of community and individual responsibility.219 This aspect attains an impor-

tant legal relevancy, since indigenous peoples deduce from such collectivity and

responsibility what a western lawyer qualifies as collective property rights. How-

ever, the legal acknowledgement of such collective property rights (sometimes also

referred to as common property rights)220 has been highly monopolised by modern

states.221 Even though international law acknowledges group rights222 and collec-

tive rights of indigenous peoples, collective property tends to be used as a

distinguishing feature between ‘civilised’ and ‘primitive’ peoples, with the concept

as such being classified as ‘primitive’.223 Emile de Laveleye, for example, even

called the Commons (‘Allmend’) in Switzerland, which are still-existing commu-

nity parcels of land, ‘primitive property’ due to their communal domain.224

Scholars went so far as to call collective property a deformation of natural law.225

It is the constantly growing international indigenous rights movement, which

reclaims respect for collective property interests and rights on behalf of smaller

indigenous structures. At stake is the collective property of a community that has

not legally constituted itself as a public or private entity but naturally belongs

together due to family ties, a common land base, common traditions, and common

cultural features such as language etc. The definition of cultural property in the

UNESCO Convention 1970 acknowledges the importance of cultural property to

collectives but is far from implementing into its connotation—as requested by

indigenous peoples—direct collective property rights on behalf of the groups of

origin.

properties of culture’]; and The World Bank, ‘Physical cultural resources’, Operational Manual,(OP 4.11, July 2006), at para. 1.219 Daes, Study 1993, supra note 4, at para. 26.220 See, for example, Theo R. G. van Banning, The human right to property, Antwerpen:

Intersentia, 2002. On the difference between collective property and ‘open access’, see Thrainn

Eggertsson, ‘Open access versus common property’, in Terry L. Anderson and Fred S. McChesney

(eds), Property rights: Cooperation, conflict, and law, Princeton NJ: Princeton University Press,

2003, pp. 73–89, at pp. 74–76.221 Rudiger Wolfrum, Die Internationalisierung staatsfreier Raume: Die Entwicklung einerinternationalen Verwaltung fur Antarktis, Weltraum, Hohe See und Meeresboden ¼ The interna-tionalization of common spaces outside national jurisdiction, Berlin: Springer, 1984, at p. 4.222 See Corsin Bisaz, ‘The concept of group rights in international law’, Universitat Zurich,Dissertation (2011).223 Caroline Humphrey and Katherine Verdery, ‘Introduction: raising questions about property’, in

Katherine Verdery (ed.), Property in question: Value transformation in the global economy,Oxford: Berg, 2004, pp. 1–25, at p. 4, citing Lewis Henry Morgan.224 Emile De Laveleye, Primitive property, translated from the French by G.R.L. Marriott,

London: Macmillan and Co., 1878.225 Humphrey and Verdery, supra note 223, at p. 4.


2.3.2.3 Categories of Indigenous Cultural Property

The legal instruments addressing indigenous peoples’ cultural property claims

show that it is necessary to develop a specific typology and categorisation of

cultural property in order to reflect the particularities of indigenous peoples’

views and interests. Most importantly, UNDRIP deems ‘human remains’, ‘ceremo-

nial objects’,226 and ‘artefacts’227 to be indigenous cultural property. The

UNIDROIT Convention 1995 refers to indigenous cultural property by mentioning

the ‘sacred objects’ and ‘communally important cultural objects’ used as part of an

indigenous community’s traditional or ritual use.228

Consistent with these international instruments, NAGPRA comprises ‘human

remains’, ‘funerary objects’, ‘sacred objects’, and ‘cultural patrimony’.229

NAGPRA and its Regulations provide the following definitions of these categories:

‘Human remains means the physical remains of the body of a person of Native

American ancestry. The term does not include remains or portions of remains that

may reasonably be determined to have been freely given or naturally shed by the

individual from whose body they were obtained, such as hair made into ropes or

nets’.230

Funerary objects are objects that, as part of the death rite or ceremony of a

culture, are reasonably believed to have been placed with individual human remains

either at the time of death or later.231

Sacred objects mean ‘specific ceremonial objects which are needed by tradi-

tional Native American religious leaders for the practice of traditional Native

American religions by their present day adherents’.232

Cultural patrimony is defined as objects ‘having ongoing historical, traditional,

or cultural importance central to the Native American group or culture itself, rather

than property owned by an individual Native American, and which, therefore,

cannot be alienated, appropriated, or conveyed by any individual regardless of

226 UNDRIP, Article 12(2).227 UNDRIP, Article 11(1).228 UNIDROIT Convention 1995, Articles 3(8), 5(3) and 7(2).229 NAGPRA, 25 U.S.C. § 3001(3).230 Native American Graves Protection and Repatriation Regulations (NAGPRA Regulations),

43 C.F.R. § 10.2(d)(1). The Sentencing Guidelines for the United States Courts to the Crimes and

Criminal Procedure (18 U.S.C. Appx C, 2005) contain a practically identical definition. Human

remains are defined as (i) the physical remains of the body of a human, (ii) not including remains

that reasonably may be determined to have been freely disposed of or naturally shed by the human

from whose body the remains were obtained, such as hair made into ropes or nets (Commentary

4 [E]).231 NAGPRA, 25 U.S.C. §§ 3001(3)(A) and (B). The definition of funerary objects in the

Sentencing Guidelines for the United States Courts to the Crimes and Criminal Procedure, supra

note 230, follows the definition in NAGPRA, by defining them as a part of the death rite or

ceremony of a culture that was placed intentionally, at the time of death or later, with or near

human remains (Commentary 4 [D]).232 NAGPRA, 25 U.S.C. § 3001(3) (C).


whether or not the individual is a member of the Indian tribe or Native Hawaiian

organization and such object shall have been considered inalienable by such Native

American group at the time the object was separated from such group’.233

The UNESCO Convention 1970 mentions none of these categories, which

triggers difficult questions. Human remains, for example, are, simply stated, not

‘property’ at all.234 Do they nevertheless qualify as ‘cultural property’ according to

the Convention’s definition?235 The Convention furthermore requires that an object

is of importance to archaeology, prehistory, history, literature, art, or science. This

stands in an odd contrast to the elements of sacredness or importance as cultural

patrimony, which qualify an object as cultural property in an indigenous view.

Furthermore, the broadness of the UNESCO Convention 1970 is inappropriate for

resolving indigenous peoples’ cultural property repatriation claims. NAGPRA,

instead, is a good example of how the scope of possible objects qualifying as

indigenous peoples’ cultural property may be limited in order to meet indigenous

peoples’ interests. It requires that sacred objects and cultural patrimony have a link

to traditions still existing. Sacred objects additionally have to be necessary for

religious practices, and cultural patrimony has to be of ongoing importance to the

Native American group.

2.3.2.4 Conclusions

The qualification of indigenous peoples’ cultural property varies considerably from

the determination of cultural property in general. The understanding of cultural

property is in the first instance too narrow, since it focuses on moveable, tangible

objects and depletes the objects from intangible values such as relations and

spiritual meaning. On the other hand, the term cultural property is not specific

enough, since it contains many more categories of cultural objects than would be

relevant for indigenous peoples. Indigenous peoples’ cultural property is further-

more very much defined by the collective function inherent to the objects, whereas

the collective aspects of cultural property become relevant only when the owner of

an object needs to be evaluated. As a consequence, legal instruments that address

indigenous peoples’ cultural property bring forth a few categories of objects that

depict the traditional lives, holistic world views, spiritually bound creativity, and

excessive grave-robbing histories of indigenous peoples, rather than a world of

science and art.

233 NAGPRA, 25 U.S.C. § 3001 (D).234 On this issue from a common law as well as a continental law perspective, see Schonenberger

supra note 204, at pp. 108–111. See also Cressida Forde, et al. (eds), The dead and theirpossessions: Repatriation in principle, policy, and practice, New York: Routledge, 2004,

containing a vast collection of studies on indigenous human remains.235 On the question if human remains qualify as cultural property in general, see Katja Lubina,

‘Contested cultural property: The return of nazi spoliated art and human remains from public

collections’, Universiteit Maastricht, Dissertation (2009), at pp. 205–208.


This shows that any step towards resolving indigenous peoples’ cultural property

repatriation claims is subject to the separation and recognition of distinctive

features and categories of indigenous cultural property. This allows the develop-

ment of enforceable law for indigenous peoples’ cultural property repatriation

claims to an assessable extent. It is not only UNDRIP and NAGPRA that exemplify

this conclusion but also museum practice. The Code of Ethics of Museums issued

by the International Council of Museums (ICOM Code of Ethics), an important

example of self-regulation in the museum world, explicitly devotes several

provisions to the object categories of human remains and material of sacred

significance.236 The Council of Australian Museums Association deemed human

remains and secret and/or sacred material (next to collections in general and

archives) to be relevant cultural property when it launched policies on the relations

between museums and indigenous Australians in 1993.237 Even legislation in the

‘old world’, specifically the United Kingdom, has started to treat human remains as

a separate category of museum objects and has attributed specific legal consider-

ation to this category.238

2.3.3 Indigenous vs. Western World Views

At the source of conflicts with indigenous peoples lies the remaining dichotomy

between ‘indigenous’ and ‘western’. As both terms cover multiple cultures,

peoples, nations, ways of life, beliefs, etc. that are constantly developing and

changing, the working out of general distinctions is ambitious.

However, an evaluation of the debate about indigenous peoples’ rights on the

one hand shows that there are denominators that indigenous peoples share that

distinguish them from the western world. Also the commonalities of western

societies, on the other hand, which separate them from indigenous peoples, go

beyond the sharing of a joint territorial region. Today, the term ‘western’ implies

many common traditional values of European and Anglo-American countries, such

as the classical cultures of Greece and Rome, the Christian religion, the enlighten-

ment of the modern era, capitalism, and democracy.239

236 International Council of Museums (ICOM), Code of Ethics of Museums (ICOM Code of

Ethics) (adopted 1986, revised 2004), Articles 2.5, 3.7, 4.3 and 4.4. See, in more detail, infra

section ‘The ICOM Code of Ethics’.237 The Council of Australian Museums Association, ‘Previous possession, new obligations:

Policies for museums in Australia and Aboriginal and Torres Strait Islander Peoples’, (1993),

discussed by Vrdoljak, International law, museums and the return of cultural objects, supra note5, at pp. 282–284.238 See infra section ‘The United Kingdom’. Palmer and Dowling, supra note 18, for example,

at p. 205.239 James Kurth, ‘Western civilization, our tradition’ (2003/2004) Intercollegiate Review, 39, pp.5–13, at p. 5; and Jean Ziegler, Der Hass auf den Westen: Wie sich die armen Volker gegen denwirtschaftlichen Weltkrieg wehren, Munich: C. Bertelsmann, 2009, at pp. 21–23.


It is important to call attention to immanent differences of world views between

indigenous and western societies since they cause fundamental difficulties at the

basis of indigenous peoples’ cultural property repatriation claims. In this sense, the

following sections will raise the awareness of some distinctions that hinder the

search for solutions at the contact point between ‘indigenous’ and ‘western’.240

Once conflicting parties have found respect and reconciliation of apparently incom-

patible values, negotiation and resolution of practical issues are generally much

easier.241

2.3.3.1 Land-Based Relations vs. Large-Scale Human Structures

At the very basis of western and indigenous differences lies the observation that

indigenous peoples determine their distinct cultures and separate identities through

inextricable and spiritual relations with their land bases.242 Indigenous peoples

regard ‘all products of the human mind and heart as interrelated and as flowing

from the same source: the relationships between the people and their land, their

kinship with the other living creatures that share the land, and with the spirit

world’.243 Indigenous peoples do not separate social relationships from a people’s

relationship to an ecological landscape. The latter binds past and future generations

and the relations of spiritual significance.244 The preservation of harmony and order

within the cosmos and non-disturbance of human-nature balance are the goals of

indigenous life.245 Consequences such as poverty are seen to be the punishment for

240 On the danger of forcing those who inhabit indigeneity into a ‘prison-house’ of identity, see Yin

C. Paradies, ‘Beyond black and white: Essentialism, hybridity and indigeneity’ (2006) Journal ofSociology, 42, pp. 355–367.241 Otto F. von Feigenblatt, ‘Identity and culture: A cultural interpretation of the Hopi-Navajo land

dispute’ (2010) Vivat Academia, 111, pp. 35–47, at pp. 44–45.242 Naomi Kipuri, ‘Chapter II: Culture’, in UN, Department of Economic and Social Affairs,

Division for Social Policy and Development, Secretariat of the Permanent Forum on Indigenous

Issues (ed.), State of the world’s indigenous peoples: ST/ESA/328, New York: United Nations

publication, 2009, pp. 51–81, at pp. 53–57.243 Daes, Study 1993, supra note 4, at para. 21.244 Victoria Tauli-Corpuz, ‘Our right to remain separate and distinct’, in Jerry Mander and Victoria

Tauli-Corpuz (eds), Paradigm wars: Indigenous peoples’ resistance to globalization, San

Francisco: Sierra Club Books, 2009, pp. 13–21, at p. 13; Coombe, ‘The properties of culture’,

supra note 218, at p. 269; and Rosemary J. Coombe, ‘Protecting cultural industries to promote

cultural diversity: Dilemmas for international policy-making posed by the recognition of tradi-

tional knowledge’, in Keith E. Maskus and Jerome Reichman (eds), International public goodsand transfer of technology under a globalized intellectual property regime, Cambridge:

Cambridge University Press, 2005, pp. 559–641 [hereinafter Coombe, ‘Protecting cultural

industries’].245 Duane Champagne, Social change and cultural continuity among native nations, Lanham Md.:

AltaMira Press, 2007, at p. 15; and Joji Carino, ‘Chapter II: Poverty and well-being’, in UN,

Department of Economic and Social Affairs, Division for Social Policy and Development,


broken relationships with nature.246 Indigenous peoples do not view humans as

mandated to control or change the world but as having to accept their ordained role

in the universe.247 Structures outside the cosmos of spirits and nature and beyond

kinship and clan, which are built upon human rational and economic theories,

traditionally do not fit into indigenous beliefs and are viewed as threatening the

often painfully experienced vulnerability of indigenous eco-social systems.248

Western societies, in comparison, are for a great part ruled by large-scale human

structures. They result from striving to systematically gather knowledge about the

world and organise and condense it into testable laws, theories, and products. They

are based on definitions, distinctions, categories, and inventions that Hernando de

Soto calls ‘representational systems’. Throughout western history, human beings

have conceived inventions ‘to grasp with the mind what human hand could never

touch’ and embraced the challenge to comprehend those things that we know exist

but cannot see. ‘Time, for example, is real, but it can be efficiently managed only

when it is represented by a clock or a calendar’. Western invention has developed

enforceable representations that allow large-scale legal and economic structures to

function beyond local groups where people still know each other. From his eco-

nomic perspective, which might be questionable in its conclusion but convincing in

its set-up, Hernando de Soto states that in the poorer regions of the world many

‘representational systems’ are missing, but not as a consequence of some western

monopolistic conspiracy. ‘It is rather that Westerners take this mechanism so

completely for granted that they have lost all awareness of its existence’.249

In consequence, in order to reconcile western and indigenous points of view in

drafting or applying rules, or in reconciling disputes, it is necessary to first locate

the indigenous integrated interconnections between land, people, and spirits on the

one hand and the western ‘representational systems’ at stake on the other.

2.3.3.2 Customs vs. Law

Traditional tribal orders of indigenous peoples consist of the knowledge of common

existence and non-written but orally transmitted customs. There is little distinction

Secretariat of the Permanent Forum on Indigenous Issues (ed.), State of the world’s indigenouspeoples: ST/ESA/328, New York: United Nations publication, 2009, pp. 13–49, at pp. 14–15.246 Carino, supra note 245, at pp. 14–15.247 Champagne, Social change and cultural continuity among native nations, supra note

245, at p. 38.248 Ibid., at p. 79; Johanna Gibson, ‘The UDHR and the group: Individual and community rights to

culture’ (2008) Hamline Journal of Public Law & Policy, 30, pp. 285–317, at p. 291; and Carino,

supra note 245, at p. 15.249 Hernando de Soto, ‘Push property rights’,Washington Post (6 January 2002); and Hernando deSoto, ‘Why capitalism works in the west but not elsewhere’, International Herald Tribune(5 January 2001).


between rules, spiritual beliefs, cultural practices, and everyday aspects.250 Such

indigenous customary law is steadily adjusted, depending on the evolution of the

society and changes in the environment around it. It is closely attached to the

culture of the peoples beyond hierarchical systems in a western sense.251 It does not

gain its authority from formal acts such as a vote of an assembly but rather ‘derives

its existence and content from social acceptance’.252 In the political process of

lawmaking, individuals of indigenous communities keep their autonomous power,

and if no consensus is obtained, there is no binding decision on the community.253

Where indigenous peoples, such as the Native Americans, have started to take over

or enact codes, statutes, and courts on their reservation territories, such law is

foreign heritage and often exists in parallel with remaining customary structures.254

With regard to western law, it suffices to say that its attributed cultural superior-

ity discounted the subtle ways of indigenous peoples’ regulations of tribal lives as

societal orders. Their rulings were not acknowledged as ‘laws’ in a western sense

and were thus deemed as non-existent.255 As a result, a lot of indigenous customary

laws were outlawed, overruled, and forgotten, leaving traditionally living indige-

nous peoples without authorities or legitimate and functioning rules.256 Neverthe-

less, or even because of this, in conflicts about their cultural property, it is crucial to

take into account indigenous peoples’ arguments based on their customs and

perspectives of law. A sustainable approach for dealing with the issues by a western

law or written contract needs first to gain the confidence of indigenous peoples in

such legal instruments.257 Thereby, indigenous peoples’ customary law is no longer

250 Justin B. Richland and Sarah Deer, Introduction to tribal legal studies, Lanham: AltaMira

Press, 2010, at p. 6; and Matthias A´hren, ‘Indigenous peoples’ culture, customs, and traditions and

customary law: The Saami people’s perspective’ (2004) Arizona Journal of International andComparative Law, 21, p. 71, at pp. 82–83 [hereinafter A

´hren, ‘The Saami people’s perspective’].

251 James W. Zion and Robert Yazzie, ‘Indigenous law in North America in the wake of conquest’

(1997) Boston College International and Comparative Law Review, 20, pp. 55–84, at pp. 73–75.252 A

´hren, ‘The Saami people’s perspective’, supra note 250, at pp. 63, 69.

253 Champagne, Social change and cultural continuity among native nations, supra note

245, at p. 14.254 S. James Anaya, ‘International human rights and indigenous peoples: The move toward the

multicultural state’ (2004) Arizona Journal of International and Comparative Law, 21, pp. 13–61,at p. 49. On the Navajo courts and their application of Navajo common law, see infra section

‘Traditional Indigenous Dispute Resolution vs. Court Litigation’.255 A

´hren, ‘The Saami people’s perspective’, supra note 250, at pp. 81–82; and Zion and Yazzie,

supra note 251, at pp. 69–71.256 The extent of such gaps varies from state to state. There are countries such as Bangladesh that

managed to substantially incorporate customary law practices within the larger state legal system;

see Raja D. Roy, ‘Challenges for juridical pluralism and customary laws of indigenous peoples:

The case of the Chittagong Hill Tracts, Bangladesh’ (2004) Arizona Journal of International andComparative Law, 21, pp. 113–183.257 Elazar Barkan, The guilt of nations: Restitution and negotiating historical injustices, 1st edn,New York: Norton, 2000, at p. 2.


the exclusive domain of anthropologists but opens new insights and chances for

finding sustainable legal regulations.258

2.3.3.3 State Sovereignty vs. Indigenous Sovereignty

‘Sovereignty’ is derived from the Latin word ‘supremus’, which means the highest

power of decision. It includes the freedom and power to exercise jurisdiction on a

certain territory for the population living on it, by embracing at the same time a

shield function against intervention in the area of such exclusive jurisdiction.259

According to the international community, such high sovereign power is equally

vested in the recognised Member States of the UN.260

Indigenous ‘sovereignty’, in contrast, is rooted in their small structures of

kinships or gens. Traditionally, their institutions are sacred and inviolable, a

superior power instituted by nature, to which the individual remained absolutely

subject in feeling, thought, and deed.261 Conflicts outside the tribe had to be

regulated by war, which could lead to the extinction or annihilation of a tribe, but

rarely to its subjugation to rulers and being ruled.262 Indigenous peoples continu-

ously strive to live under such tribal sovereignty, which is a key feature that

distinguishes indigenous peoples from definitions of minority groups provided for

in treaties, conventions, and declarations.263

The challenge in making contact with indigenous peoples is thus not only to

know the legal intrastate status of an indigenous people but also to understand and

respect their internal translation of sovereignty compared with states’ sovereignty

and western institutional and organisational order. The collective human right of

258 See infra Sect. 5.2; and John P. Reid, ‘The Cherokee thought: An apparatus of primitive law’

(1971) New York University Law Review, 46, pp. 281–302, at p. 281.259 Ian Brownlie, Principles of public international law, Oxford: Oxford University Press, 2003, atp. 287; and Malcolm N. Shaw, International law, 6th edn, Cambridge: Cambridge University

Press, 2008, at pp. 487–492.260 UN Charter, 1 UNTS XVI (adopted on 26 June 1945, entered into force 24 October 1945),

Articles 2(1), 3 and 4.261 Friedrich Engels, The origin of the family, private property and the state: In the light of theresearches of Lewis H. Morgan, 6th edn, Moscow: Foreign Languages Publishing House (first

published in 1884 in Zurich), at p. 162. Engels compared bodies of consanguinei within American

Indian tribes with the genea of Greeks and the gentes of the Romans, as being the social

organisations of primitive times before entry into civilisation and before the introduction of the

state, at pp. 137–138.262 Ibid., at p. 260.263William K. Barth, On cultural rights: The equality of nations and the minority legal tradition,Leiden: M. Nijhoff Publishers, 2008, at p. 102; David Raic, Statehood and the law of self-determination, The Hague: Kluwer Law International, 2002, at pp. 247–265; Kurt Siehr,

‘Minderheiten im Internationalen Privatrecht’, in Michael Stathopoulos, et al. (eds), Festschriftfur Apostolos Georgiades, Munich and Bern: Beck and Stampfli, 2005, pp. 921–939, at

pp. 925–928; and Thornberry, supra note 75, at pp. 52–55 and 59–60.



indigenous peoples to self-determination provides some guidance in bridging the

difference in theory.264 In practice, however, an evaluation of a deeper understand-

ing is necessary in order to cope with this difference in world view.

2.3.3.4 Collectivism vs. Individual Development

Indigenous peoples argue that collectivity fully pervades their lives.265 Jeannette

Armstrong, a member of the Okanagan of British Columbia, Canada, describes this

as follows:266

As an Okanagan you are automatically part of the rest of the community. You belong. You

are them. You are within a family and community. You are that which is family and

community; within that you cannot be separate. . . .. Our most serious teaching is that

community comes first in our choices, then family, and finally ourselves as individuals,

because without community and family we are truly not human.

This does not mean that members of indigenous societies do not have individual

rights. Not everything is shared with everybody. But individual rights are inextri-

cably linked with collective responsibilities.267 Indigenous peoples rely on the

freedom to be what they were created to be. Thus, they enjoy a highly

individualised notion of ‘rights’, yet in the sense of unique personal responsibilities

to kin, clan, and nation. ‘Each individual’s “rights,” then, consist of freedom to

exercise responsibilities towards others, as she or he understands them, without

interference’.268

This collectivism is different from societies where increased production

possibilities enable humanity to produce more than is necessary for maintenance,

where social division happens along lines different from family and community,

and where new possibilities of individual development are opened.269 Ethnically

and culturally defined entities of indigenous peoples in this sense stand in contrast

to a profit-centred individualism.270 An applied example of such difference in world

264 See infra section ‘The Right to self-Determination [Article 1(1) CCPR and CESCR]’.265 Kipuri, supra note 242, at p. 52.266 Jeannette Armstrong, ‘Community: “Sharing one skin”’, in Jerry Mander and Victoria Tauli-

Corpuz (eds), Paradigm wars: Indigenous peoples’ resistance to globalization, San Francisco:

Sierra Club Books, 2009, pp. 35–40, at p. 37.267 Graham Dutfield, ‘Legal and economic aspects of traditional knowledge’, in Keith E. Maskus

and Jerome Reichman (eds), International public goods and transfer of technology under aglobalized intellectual property regime, Cambridge: Cambridge University Press, 2005,

pp. 495–520, at pp. 501–503.268 Russel L. Barsh, ‘Indigenous peoples and the idea of individual human rights’ (1995) NativeStudies Review, 10, pp. 35–55, at pp. 44–45.269 Engels, supra note 261, at pp. 259–278.270 Asbjørn Eide and Allan Rosas, ‘Economic, social and cultural rights: A universal challenge’, in

Asbjørn Eide, et al. (eds), Economic, social and cultural rights: A textook, 2nd edn, Dordrecht etc.:Martinus Nijhoff Publishers, 2001, pp. 3–7, at p. 6.


view is the notion of indigenous cultural property as collective property, which is

different from the collective aspect of cultural property in general.271

2.3.3.5 Culture vs. Capitalism

The survival and protection of indigenous peoples’ cultures is of high priority in the

debate about indigenous peoples’ rights.272 A strong, traditional culture has been

identified as an important element to protect indigenous peoples from—what may

be called—‘civilisation diseases’. For example, Michael Dockery, in his research

on the interconnection between the culture and well-being of Aborigines of

Australia, shows how culture may directly influence the physical condition of an

individual. A strong attachment of Aborigines to traditional culture is associated

with better health and a lower likelihood of engaging in risky alcohol consump-

tion.273 Similarly, Malcolm King, the scientific director of the Canadian Institute of

Aboriginal Peoples’ Health (IAPH), identified the loss of culture as one of the

unique factors in the immense health problems of indigenous peoples around the

world.274 Indigenous peoples move to the cities and abandon indigenous cultures in

order to escape discrimination and enjoy new amenities beyond the social control of

former village lives. However, they thereby generally face at some point a lack of

direction and sense.275 As soon as cultural mutuality such as common language and

rituals transcend village lives and territorial boundaries, it helps indigenous peoples

living in the cities to avoid de-rooting and alienation.276

At stake is an anthropological view of the concept of culture, in contrast to the

idea of culture as accumulated heritage of mankind or as a process of artistic and

scientific creation. It is based on culture as a total way of life or the sum of the

material and spiritual activities and products of a social group, which characterises

the group, and may distinguish it from other groups.277 It reflects the view that

271 See supra Sect. 2.3.2.2.272 UN, Department of Economic and Social Affairs, Division for Social Policy and Development,

Secretariat of the Permanent Forum on Indigenous Issues (ed.), State of the world’s indigenouspeoples: ST/ESA/328, New York: United Nations publication, 2009, at pp. VII–IX.273 Intermediate levels of cultural attachment, however, are revealed to be indicative of the

isolation, confusion, and the feelings of loss of control and self-esteem that often beset people

trying to ‘live between two cultures’. They were the most likely to have been arrested. Alfred

M. Dockery, ‘Culture and wellbeing: The case of indigenous Australians’, Curtin University ofTechnology, CLMR Discussion Paper Series No. 09/01 (2009), available at http://ssrn.com/

abstract¼1351633.274 ‘Poor health among indigenous peoples a question of cultural loss as well as poverty’, NewsRelease of the Canadian Institutes of Health Research (July 2009), available online at http://www.cihr-irsc.gc.ca/e/39781.html.275 ‘Immer mehr Stadtindianer in Mexiko’, NZZ Online (26 March 2010).276 Ibid.277 Rodolfo Stavenhagen, ‘Cultural rights: A social science perspective’, in Asbjørn Eide,

et al. (eds), Economic, social and cultural rights: A textook, 2nd edn, Dordrecht etc.: Martinus


http://ssrn.com/abstract=1351633



http://www.cihr-irsc.gc.ca/e/39781.html

http://www.cihr-irsc.gc.ca/e/39781.html

cultural features such as beliefs, customs, and values represented in the form of

language, symbols, songs, rituals, etc. strengthen and keep alive communities278 in

the sense of ‘A nation’s strength is in its culture’.279 Revitalising and resurrecting

ancient cultural customs and traditions are thus ways that indigenous peoples can

cast aside the yoke of colonisation and rebuild self-determination and regain control

of their futures.280

Trade and economic developments, in contrast, seem to be much more ineffec-

tive to truly and sustainably respond to indigenous peoples’ claims. Indigenous

peoples do not share the belief that wealth, which cannot be used itself to satisfy

personal pleasures, needs to be reinvested in order to make more wealth. They do

not strive for more efficient production in order to escape traditional settings.

Constant innovation, change, and capitalist accumulation, which have been

characterised as the core of capitalism and modern society, do not correspond

with their world views.281 Within indigenous self-sufficient communities, trading

and economic wealth finds its limits in traditional ways of life and beliefs, such as

the conception that hunting more animals than necessary for the subsistence of the

people would show disrespect for the animal spirits and invite their retribution.282

This cultural barrier in indigenous communities’ economic thinking became obvi-

ous in the United States, when fur trading during the colonial period became an

important economic branch of Native American subsistence. When the traders

induced the hunters to trade more furs and paid higher prices, the Native Americans

brought in less furs, as they needed only a limited amount of the goods that they

received for the furs.283

Thus, indigenous peoples’ cultural property repatriation claims generally aim at

replacing missing elements into their cultural and everyday lives. Whether and how

the elements trigger the required stimulation and revitalisation effect for an

Nijhoff Publishers, 2001, pp. 85–109, at p. 89. See also Kipuri, supra note 242, at p. 52. For an

extensive discussion on the anthropological definition of culture, see Wolfgang Fikentscher, Lawand anthropology: Outlines, issues, and suggestions, Munich: Verlag der Bayerischen Akademie

der Wissenschaften, 2009, at pp. 108–114.278 Kipuri, supra note 242, at p. 52.279 Said by Johan Vilhelm Snellman (1806–1881), Finnish politician and philosopher, founder of

Finnish currency, the modern economy and Finnish as Finland’s language, Senator and Chief of

Financial Administration in a conversation with Czar Alexander II at a time when Finland was

under Russian rule. Cited by Fikentscher, supra note 277, at p. 6.280 Raymond D. Austin, Navajo courts and Navajo common law: A tradition of tribal self-governance, Minneapolis Minn.: University of Minnesota Press, 2009, at p. xix.281 Champagne, Social change and cultural continuity among native nations, supra note 245, at

pp. 29 and 35; and Andrea Boggio, ‘Transnational perspective on human genetics and property

rights mobilizations of indigenous peoples’, in Wayne V. McIntosh (ed.), Property rights andneo-liberalism: Cultural demands and legal actions, Farnham: Ashgate, 2010, pp. 111–123,

at p. 120.282 Champagne, Social change and cultural continuity among native nations, supra note

245, at p. 35.283 Ibid., at p. 37.


indigenous group can generally not be measured in parameters of economic devel-

opment and wealth. Indigenous peoples might present their culture in order to

generate some income, for example by running museums, offering dancing and

ceremonies as tourist attractions, or producing cultural products for sale. However,

it would be inappropriate to compare such behaviour with western capitalism.

2.3.3.6 Conclusions

The analysis above shows that the differences in world views constitute fundamen-

tal challenges in interfacing western and indigenous values when indigenous

peoples claim repatriation of their cultural property. Whereas a western party

approaches repatriation claims with considerations about the value of an object

for large-scale human structures, including its market value, an indigenous party

rather emphasises the connectivity of an object to the land, culture, and community

of origin. Whereas a western party quickly thinks of ownership and individual

property rights in terms of state law, one may expect that an indigenous party

instead consults local customs and takes into account the collective duty immanent

to the possession of the cultural object at stake. The positions vary in detail, and the

dividing line between indigenous and western world views is fluid. In addition,

many persons of tribal origin left their kinship settings and broke with traditional

life while still considering themselves indigenous. On the other hand, even though

western people rarely return to a tribal lifestyle, indigenous world views influence

western mindsets. However, the traditional differences between indigenous and

western are still common and constitute a great challenge for both parties, requiring

that fixed ideas and realities be compromised in order to constructively find new

ways of how to deal with each other.


Chapter 3

National Cultural Property Repatriation

Claims of the Native Americans

3.1 The Legal Approach in the United States

The United States responded to Native American cultural property repatriation with

a pioneering step by enacting the Native American Graves Protection and Repatri-

ation Act of 1990 (NAGPRA).1 It thereby broke away from rigid notions of

property and called for thinking beyond the absolute, legally protected dominion

of individuals over things and the requirement to view the act of acquisition as the

core of ownership.2

In Anglo-American property law in general, it seems that cultural property

established as the ‘fourth estate’ next to real property, intellectual property, and

personal property.3 The idea of treating cultural property outside other categories of

property proved to be fertile ground for a new approach in NAGPRA.

3.1.1 NAGPRA and Its Concept of Cultural Affiliation

NAGPRA sets up an unorthodox process to allocate old and newly excavated

Native American human remains, funerary objects, sacred objects, and objects of

cultural patrimony. The key feature of this process is the application of a ‘cultural

This section draws on previous work by the author presented at the 2nd Annual Meeting of the

Association for Law, Property, and Society (ALPS), 4–5 March 2011, Georgetown Law

School, Washington, DC, and published as ‘The concept of “cultural affiliation” in NAGPRA:

Its potential and limits in the global protection of indigenous cultural property rights’ (2012)

International Journal of Cultural Property, 19, pp. 33–63.

1 Native American Graves Protection and Repatriation Act of 1990 (NAGPRA), 25 U.S.C. §§

3001–3013, 18 U.S.C. § 1170.2 On the basic principles of property law, see infra section ‘Basic Private Property Law Principles’.3 Kristen A. Carpenter, et al., ‘In defense of property’ (2009) The Yale Law Journal, 118, pp.1022–1125, at p. 1032.


55

affiliation’ prong, which serves to allocate cultural property. It thereby gives the

notion of culture a new directly applicable and enforceable legal value by

downplaying at the same time the financial interests in an object.

To establish cultural affiliation, NAGPRA first requires evidence of an ongoing

relationship between a present-day Indian tribe or Native Hawaiian organisation

and an identifiable earlier group. The Regulations, which further implement

NAGPRA, specify this relationship by requiring the following4:

1. Existence of an identifiable present-day Indian tribe or Native Hawaiian

organisation,

2. Evidence of the existence of an identifiable earlier group,

3. Evidence of shared group identity between the present-day tribe or organisation

with the identifiable earlier group.

Thereafter, the affiliation of the group or specific members of that group with the

objects has to be evaluated.5 Cultural affiliation decides which person or group of

persons shall be the owner, possessor, or steward of an object, resulting in repatri-

ation if necessary. For the final allocation of objects within the group, lineal

descendants of the deceased, in the case of human remains and funerary objects,

and the original holders of objects, in the case of cultural items, take precedence

over tribes and organisations.6

The cultural affiliation prong abandons the language of property and works with

a language that emphasises personal relations and interrelations with regard to an

object. It takes into account that the colonial private property regime was

superimposed on Native American cultural property,7 of which the possession

and use was formerly tied in with complex social and spiritual linkages between

peoples and their surrounding world. Relations to cultural property ‘did not have an

abstract existence but were activated within social gatherings and rituals’.8 Through

the cultural affiliation component, NAGPRA allows a redevelopment of Native

American traditional relations and ties to cultural property and loosens the tight

private property thinking.

At the same time, NAGPRA amends western legal criteria of procedural proof

when it comes to an evaluation of cultural affiliation. It acknowledges ‘oral

tradition’ or ‘hearsay’ as evidence for cultural affiliation, alongside geographical,

kinship, biological, archaeological, anthropological, linguistic, folklore, and

4NAGPRA Regulations, 43 C.F.R. § 10.14(c).5 NAGPRA, 25 U.S.C. § 3001(2); NAGPRA Regulations, 43 C.F.R. §§ 10.2(d)(1), 10.2.(e) and

10.14.6 NAGPRA, 25 U.S.C. §§ 3002(a)(1) and (2); NAGPRA, 25 U.S.C. §§ 3005(a)(1) and (2).7 Carpenter, et al., ‘In defense of property’, supra note 4, at p. 1048.8 Caroline Humphrey and Katherine Verdery, ‘Introduction: raising questions about property’, in

Katherine Verdery (ed.), Property in question: Value transformation in the global economy,Oxford: Berg, 2004, pp. 1–25, at p. 17.

56 3 National Cultural Property Repatriation Claims of the Native Americans

historical information or expert opinion.9 It also refrains from requiring actual

‘proof’ or ‘scientific certainty’ of cultural affiliation but only looks for a preponder-

ance of evidence.10 This again is in line with indigenous customs and rules, which

are mainly based upon oral traditions passed down from generation to generation.

For western private property minds, the resolving of ‘ownership’ questions based

on hearsay stories about cultural relationship is a challenge. This may be illustrated

by a NAGPRA case regarding three painted Native American shields.

The Pectol Shields, named after their finder’s family name, were the possession

of the Capital Reef National Park in south-central Utah, when NAGPRA required

the Park to reallocate and possibly repatriate the Shields to the Native Americans.

Several archaeological expert opinions, consultations with Native American tribes,

and the radiocarbon dating of the Shields left the cultural affiliation of the Shields

unresolved. They were unique in the anthropological records, and too little was

known about the various Native American groups in the area during the period of

the Shields’ manufacture around 300–400 years previously.11

The Navajo singer or medicine man John Holiday finally provided the necessary

evidence by telling the most convincing hearsay story. He remembered that a Navajo

man called Many-goats-white-hair had created the Shields nine generations

previously as sacred ceremonial objects. In the 1860s, when the United States

Army rounded up about half of the Navajo tribe and drove them to Fort Sumner in

NewMexico, two other Navajo men, Man-called-rope and Little-bitter-water-person,

were concerned about the Shields’ safety. They hid them in an area that the Navajos

call the Mountain-with-no-name and Mountain-with-white-face. This story was the

reason why the Shields were ultimately repatriated to the Navajo nation. John

Holiday’s story was convincing because he could identify Man-called-rope as his

grandfather, and Navajos and anthropologists alike considered John Holiday as a

highly respected man of impeccable integrity.12

The story is far from the notion of western ownership proof and, to some extent,

‘painfully unclear’ as an applied rule of evidence.13 One may also question whether

9NAGPRA Regulations, 43 C.F.R. § 10.14(e).10 NAGPRA Regulations, 43 C.F.R. § 10.14(f). See also Steven J. Gunn, ‘The Native American

Graves Protection and Repatriation Act at twenty: Reaching the limits of our national consensus’

(2010) William Mitchell Law Review, 36 (2), pp. 503–532, at p. 528 referring to United States,

Senate, ‘Providing for the protection of Native American graves and the repatriation of Native

American remains and cultural patrimony’, Report No. 101-473, 1990, at p. 10.11 Debora L. Threedy, ‘Claiming the shields: Law, anthropology, and the role of storytelling in a

NAGPRA repatriation case study’ (2009) Journal of Land, Resources & Environmental Law,29, pp. 91–119, at pp. 100–101.12 Ibid., at p. 110.13 See James A. R. Nafziger, ‘Protection and repatriation of indigenous cultural heritage in the

United States’, in James A. R. Nafziger and Ann M. Nicgorski (eds), Cultural heritage issues: Thelegacy of conquest, colonization, and commerce, Leiden: M. Nijhoff Publishers, 2009, pp. 37–79,

at p. 73.

3.1 The Legal Approach in the United States 57

the story led to a legally correct or rather politically motivated decision.14 Despite

such doubts, the experience with NAGPRA shows that native oral histories and

traditions have developed into an important instrument in enabling scientists,

museums, and agencies to decide about the treatment and transfer of Native

American cultural property. They became invaluable as a source for testable

hypotheses, even relating to prehistoric times. Steven J. Gunn counted at least

308 NAGPRA cases in which oral histories and oral traditions played a role in

determining cultural affiliation.15

The cultural affiliation concept as such is not the easiest, fastest, or most

unambiguous concept to deal with in practice.16 Yet, since NAGPRA’s enactment

in 1990, the concept has encountered only a few disputes that have been assessed by

the NAGPRA Review Committee17 and two major limitations. Both limitations

specifically concern the allocation of human remains.

The cultural affiliation prong reached a first conceptual limitation with regard to

very old cultural property. In the most significant litigation under NAGPRA, about

a 9,000-year-old skeleton called the Kennewick man, district and appellate courts

held that the Kennewick man’s bones had ‘no special and significant genetic or

cultural relationship to [a] presently existing indigenous tribe, people, or culture’.18

Oral traditions would not be able to bridge the period between the time when the

Kennewick man lived and the present day.19 In brief, the Kennewick man did not

qualify as ‘Native American’ in the sense of NAGPRA, according to the courts’

deliberations. This entails the question from what point of time an old object

14 Neal Busk, Head of the E. P. and Dorothy Hickman Pectol Family Organization, ‘Pectol

Shields’, Email, (6 March 2012), on file with the author.15 Gunn, supra note 11, at p. 528.16 In the view of biological anthropologists, for example, NAGPRA’s cultural affiliation concept

compromises their role in determining cultural affiliation and ignores the complex cultural,

biological, and historical processes associated with the development or construction of cultural

identity. Michael A. Schillaci and Wendy J. Bustard, ‘Controversy and conflict: NAGPRA and the

role of biological anthropology in determining cultural affiliation’ (2010) Political and LegalAnthropology Review, 32 (2), pp. 352–373. On the concept’s application in practice, see National

Association of Tribal Historic Preservation Officers, ‘Federal agency implementation of the

Native American Graves Protection and Repatriation Act. A report by the Makah Indian Tribe

and the National Association of Tribal Historic Preservation Officers’ (30 June 2008), at pp. 18 and

41, available at http://www.nathpo.org/nagpra.html. On weaknesses of the United States’ statutory

effort to protect and repatriate indigenous heritage in general, see Nafziger, ‘Protection and

repatriation of indigenous cultural heritage in the United States’, supra note 14, at pp. 73–75.17 Schillaci and Bustard counted five findings of the Review Committee on cultural affiliation

disputes published in the United States Federal Register since the enactment of NAGPRA until

2010. Schillaci and Bustard, supra note 17, at p. 357.18Bonnichsen v United States (2002) 217 F Supp 2d 1116, 1152-55 (D Or); (2004) 367 F 3d (9th

Cir), at p. 879.19 Ibid., at pp. 881–882 and 879.


http://www.nathpo.org/nagpra.html

qualifies as Native American. The courts ultimately left its answer for practice to

decide on a case-by-case basis.20

The second big issue on cultural affiliation was resolved by an amendment to the

NAGPRA Regulations, adopted in March 2010. Federal agencies and museums did

not know how to proceed with human remains and associated funerary objects

previously determined to be Native American, but for which no lineal descendant or

culturally affiliated Indian tribe or Native Hawaiian organisation could be

identified. An amendment to the Regulations on culturally unidentifiable human

remains now determines that it shall be left to the Native American tribes to identify

the culturally affiliated tribe where the human remains shall be possibly

repatriated.21 Scholars expect that the Regulations will lead to a tectonic shift in

the balance of power between museums and indigenous groups and that museums

are likely to challenge the Regulations in court as exceeding the scope of allowable

administrative action under NAGPRA.22

In the United States, both limitations of the cultural affiliation concept have been

widely discussed. I will not repeat this United States internal discussion but will

look instead at NAGPRA and its concept of cultural affiliation from an international

perspective. Could it serve as an example for national, or even international,

legislation with regard to indigenous peoples’ cultural property repatriation claims?

What are the potentials and where are the limits of the concept? In order to give an

answer to this question, it is necessary to first look at NAGPRA’s provisions in

more detail.

3.1.2 NAGPRA and Human Rights Law

NAGPRA qualifies in the first instance as human rights legislation.23 Important

driving forces behind its enactment were the national and international claims for

respect of indigenous peoples’ right to self-determination and the insight that

20 For a summary of the courts’ holdings and a discussion of the case, see Nafziger, ‘Protection and

repatriation of indigenous cultural heritage in the United States’, supra note 14, at pp. 62–70. For a

critical voice, see also Sarah Harding, ‘Bonnichsen v. United States: Time, place, and the search

for identity’ (2005) International Journal of Cultural Property, 12, pp. 249–263.21 NAGPRA Regulations, 43 C.F.R. § 10.11.22 Carole Goldberg, ‘A United States perspective on the protection of indigenous cultural heri-

tage’, in Christoph B. Graber, et al. (eds), International trade in indigenous cultural heritage:Legal and policy issues, Cheltenham UK and Northampton MA: Edward Elgar, 2012,

pp. 331–361, at p. 342. For a positive assessment of the 2010 NAGPRA Regulations, see Zoe

E. Niesel, ‘Better late than never?: The effect of the Native American Graves Protection and

Repatriation Act’s 2010 regulations’ (2011) Wake Forest Law Review, 46, pp. 837–865.23 Nafziger, ‘Protection and repatriation of indigenous cultural heritage in the United States’, supra

note 14, at p. 47.


Native Americans need to be included in terms of humanity.24 The existing federal

and state law in the United States did not, for example, come close to protecting

Native American graves in the same way as western graves.25 The revealing of

highly discriminatory incidents regarding Native American human remains,

together with a mounting Native American scepticism against scientific research

on the remains, emerged into a nationwide Indian burial rights movement.26

Around the same time, the Federal Government in the United States started serious

efforts to redirect the Smithsonian Institution’s vast holdings of Native American

and Hawaiian material. Museum collections of Native American objects were no

longer seen as ‘representations of reality’ but rather as ‘hostages’ to imperialist

values.27 The outcome was the National Museum of the American Indian Act of

1989,28 which inter alia contained the establishment of the NMAI in Washington,

D.C., and detailed repatriation provisions.29 The national activities coincided with a

new international spirit of cooperation on the protection of cultural property. The

United States agreed with Latin American states on the protection and repatriation

of pre-Columbian heritage and, in 1982, ratified the UNESCO Convention 1970.

All of these factors paved the way for NAGPRA’s enactment in 1990.30

In legal terms, the treatment of Native American human remains was considered

an infringement of the universal human right of non-discrimination.31 The Equal

Protection clauses of the Fifth and Fourteenth Amendments and the First Amend-

ment protecting Free Exercise of Religion of the United States Constitution backed

such human rights claims.32 NAGPRA was thus designed to address the flagrant

violations of the ‘civil rights of America’s first citizens’ in respect of its provisions

24 James A. R. Nafziger and Rebecca J. Dobkins, ‘The Native American Graves Protection and

Repatriation Act in its first decade’ (1999) International Journal of Cultural Property, 8, pp.77–107, at pp. 79–81; and Jack F. Trope andWalter R. Echo-Hawk, ‘The Native American Graves

Protection and Repatriation Act: Background and legislative history’ (1992) Arizona State LawJournal, 24, pp. 35–76, at p. 38.25 Jack F. Trope, ‘Section I. NAGPRA. Chapter 1: The Native American Graves Protection and

Repatriation Act’, in American Indian Ritual Object Repatriation Foundation (ed.), Mending thecircle: A Native American repatriation guide: Understanding and implementing NAGPRA and theofficial Smithsonian and other repatriation policies, New York: American Indian Ritual Object

Repatriation Foundation, 1996, pp. 8–18, at pp. 45–47.26 Nafziger, ‘Protection and repatriation of indigenous cultural heritage in the United States’, supra

note 14, at pp. 42–44.27 Ibid., at p. 43.28 NMAI Act, 20 U.S.C. § 80q.29 NMAI Act, 20 U.S.C. §§ 80q–9–80q–12.30 Nafziger, ‘Protection and repatriation of indigenous cultural heritage in the United States’, supra

note 14, at pp. 42–45; and Nafziger and Dobkins, supra note 25, at pp. 79–81.31 For international protection, see the UN International Convention on the Elimination of All

Forms of Racial Discrimination, 660 UNTS 195 (adopted on 21 December 1965, entered into force

4 January 1969); and CCPR, Articles 2 (1) and 26.32 Trope and Echo-Hawk, supra note 25, at pp. 46–50.


on human remains.33 With regard to sacred objects and cultural patrimony, the

rationale behind NAGPRA is additionally derived from human rights law aiming at

prohibiting unjustified land takings, resettlements, reservation building,

encompassing assimilation programmes, and genocide.

NAGPRA ultimately relied on a broad national consensus to resolve the Native

Americans’ claims for respect, proper treatment, and repatriation of their cultural

property by statutory law. Not only Native American tribes and organisations but

also numerous major associations of museums, scientists, and historical societies

supported the legislation.34 NAGPRA was a compromise that was passed in the

Senate by voice vote and by unanimous consent in the House of Representatives.35

Fred A. Morris describes the compromise as follows36:

For the Native Americans, NAGPRA presented an opportunity to redress the wrongs of past

centuries perpetrated by the dominant culture and to regain control over the past so as to

build a future. For the museums, the challenge to their past practices in building collections

also implicated their future, for it would not only affect their research and exhibitions

(i.e. which objects were to remain in their collections) but also their methods for continuing

to collect data to develop further their scientific fields.

NAGPRA’s codification of human rights in such an extensive legislative, statu-

tory act is a phenomenon that is singular worldwide. It is also an exceptional human

rights law in that it goes far beyond the usually limited scope of action of human

rights standards. It accomplishes human rights with positive, concrete duties

imposed upon federal agencies and museums and provides for important tools to

support the enforcement of the required activities. In this sense, NAGPRA requires

federal agencies and museums to inventory and summarise their collections in

consultation with tribal governments, Native Hawaiian organisations’ officials,

and traditional religious leaders37 and to publish notices of completed inventories38

and notices of intent to repatriate.39 It provides for specific procedural structures to

support the processes such as the NAGPRA Review Committee formed by a

33 Ibid., at p. 59, citing Senator Daniel Inouye.34 C. Timothy McKeown and Sherry Hutt, ‘In the smaller scope of conscience: The Native

American Graves Protection & Repatriation Act twelve years after’ (2002/2003) UCLA Journalof Environmental Law & Policy, 21, pp. 153–212, at p. 154. Among the supporters were the

American Association of Museums, Society for American Archaeology, Society of Professional

Archaeologists, Archaeological Institute of America, American Anthropological Association,

American Association of Physical Anthropologists, National Conference of State Historic Preser-

vation Officers, National Trust for Historic Preservation, Preservation Action, Association on

American Indian Affairs, Native American Rights Fund, and National Congress of American

Indians.35 Ibid., at p. 153.36 Fred A. Morris, ‘Law and identity: Negotiating meaning in the Native American Graves

Protection and Repatriation Act’ (1997) International Journal of Cultural Property, 6, pp.

199–230, at p. 203.37 NAGPRA, 25 U.S.C. §§ 3003 and 3004.38 NAGPRA, 25 U.S.C. § 3003(d).39 NAGPRA Regulations, 43 C.F.R. § 10.8(f).


balanced number of native and non-native members.40 It contains penalties against

museums in case of non-compliance with NAGPRA,41 and it allows for financial

grants to the amount of about US$2 million/year42 for museums and tribes in order

to enable them to carry out NAGPRA activities.43

Another element that renders NAGPRA a special human rights law is the

requirement to integrate Native American perspectives, mainly through direct

consultations with Native American tribes and Native Hawaiian organisations.

Their cooperation is requested in order to evaluate cultural affiliation, to determine

the right of possession, and to define whether an object is sacred or cultural

patrimony in the sense of NAGPRA.44 This integrative process of Native

Americans in the decision-making is a central human rights value of the Act.

Thereby, NAGPRA does not make the mistake of simply referring to Native

American customary law, which is basically unsuitable for bridging indigenous

and western world views.45 It rather applies a participatory process that corresponds

much better with the traditional individual rights system of Native American

communities. Rather than through abstract substantive rights, such as private

property rights, Native American individual rights unfold through procedural

rights.46 Political power lies in families, local villages, or bands,47 and respect for

individual autonomy in these structures is deployed through everyone’s right to

speak and be part of collective decision-making.48

3.1.3 NAGPRA and Property Law

Apart from being a human rights act, NAGPRA forms part of property law, even if

the cultural affiliation concept goes beyond property law thinking. The Act deals

with the question of who are the rightful owners, possessors, or stewards of cultural

property. It thereby regulates two major issues. First, it addresses the question of

40NAGPRA, 25 U.S.C. § 3006.41 NAGPRA, 25 U.S.C. § 3007.42 United States, Government Accountability Office (US GAO), ‘Native American Graves Protec-

tion and Repatriation Act: After almost 20 years, key federal agencies still have not fully complied

with the Act’, Report to Congressional Requesters (US GAO Doc. GAO-10-768, 2010), at p. 14.43 NAGPRA, 25 U.S.C. § 3008. No funding is granted for repatriations from federal agencies, andno enforcement mechanism exists to ensure federal agencies’ compliance except through liti-

gation by private parties. Ibid., at pp. 51 and 53.44 NAGPRA, 25 U.S.C. §§ 3001 (4C) and (4D).45 See infra Sect. 5.2.46 Carole Goldberg, ‘Individual rights and tribal revitalization’ (2003) Arizona State Law Journal,35, pp. 898–938, at p. 913.47 Duane Champagne, Notes from the center of Turtle Island, Lanham Md.: AltaMira Press, 2010,

at p. 7.48 Goldberg, ‘Individual rights and tribal revitalization’, supra note 47, at p. 912.



how federal agencies and museums should treat Native American cultural property

kept in their collections. NAGPRA answers this question by obliging federal

agencies and museums to repatriate the objects—if possible, if requested and not

legally prevented—to culturally affiliated Native Americans or Native Hawaiian

organisations.49 The second central section in NAGPRA regulates the allocation of

Native American archaeological items newly excavated or discovered on federal or

tribal lands after NAGPRA’s enactment (16 November 1990). NAGPRA stipulates

that ownership or control of such items is allocated to the Native Americans or

Native Hawaiian organisations.50

The section on repatriation in NAGPRA is based on a general assumption that

transactions with Native American cultural property were generally deficient, or

were takings.51 NAGPRA thus departs from the premise that culturally affiliated

persons or groups, in principle, remain the owners or, rather, stewards of Native

American objects, despite any transfer and until proven otherwise. In order to

rebalance this assumption, NAGPRA contains a possibility for a party that is not

willing to repatriate an object to claim a ‘right of possession’ to the object.52

NAGPRA defines this right of possession as ‘the possession obtained with the

voluntary consent of an individual or group that had authority of alienation’.53 This

is another concession of property law to Native American views and interests. It

requires defining the alienability of an object in the application of Native American

customs before it looks at the transaction itself. It thereby allows the Native

Americans to qualify an object as res extra commercium before the acquisition of

good title by transfer may be considered.

Another element in NAGPRA’s repatriation section seems to turn a conflict

about Native American property into a more or less conventional property dispute.

It is the possibility that Native Americans may file a repatriation claim for their

sacred objects and objects of cultural patrimony based upon previous ‘owner-

ship’.54 This option forms an alternative to the repatriation claim based upon

cultural affiliation.55 It emphasises the property character of the objects by indeed

asking for ‘ownership’. However, it again weakens such claim on absolute property

rights by allowing evidence of previous ‘control’ over an object instead. The use of

the non-technical term ‘control’ opens an unexplored avenue of interpretation and

seems to add factual possession as an alternative to ownership.56 Even this property

49NAGPRA, 25 U.S.C. § 3005.50 NAGPRA, 25 U.S.C. § 3002.51 See in detail supra Sect. 2.1.2.52 NAGPRA, 25 U.S.C. § 3005(c).53 NAGPRA, 25 U.S.C. § 3001(13).54 NAGPRA, 25 U.S.C. § 3005(a)(5).55 Trope, ‘Section I. NAGPRA. Chapter 1: The Native American Graves Protection and Repatri-

ation Act’, supra note 26, at p. 12.56 See also NAGPRA, 25 U.S.C. § 3002(a), by which NAGPRA attributes ‘ownership or control’

of Native American cultural items that are excavated or discovered on federal or tribal lands after

16 November 1990 to the Native Americans.



claim in NAGPRA is thus a differentiated property claim if compared to a regular

ownership claim.

The NAGPRA section on newly excavated and discovered archaeological items

uses property law terms when defining the ‘ownership or control’ of such items.57

Similar to states’ ownership of cultural property found on state territory, NAGPRA

stipulates that the Native Americans shall be the ‘owners’ or ‘controllers’ of objects

found on federal or tribal lands. NAGPRA does not stop there, however, but goes on

to fill the ownership term with a list that defines the persons and tribes who shall

receive the objects. It starts with the lineal descendants as the prioritised owners of

human remains and associated funerary objects,58 followed by the tribal

landowners for receiving unassociated funerary objects, sacred objects, and objects

of cultural patrimony.59 The last ones in the priority list are the culturally affiliated

tribes or tribes with aboriginal land occupation or any other strong cultural rela-

tionship.60 The property relevance of this ownership system is unique and difficult

to assess within (cultural) property law, as it deviates, in a new allocation system,

from basic private property finders’ law principles.

As can be seen from these provisions, NAGPRA mixes the cultural affiliation

concept with traditional property law terms and considerations, thereby embedding

the statute to some extent back into a familiar legal system. The roots in property

language help the new concept to find acceptance and to work in practice, as

property law terms may serve as checks and balances for resolving disputed

cases. However, NAGPRA in no way treats cultural items as financial values, and

lacks any obligation to compensate for repatriations or findings through excavation,

and thereby abolishes good faith acquisition mechanisms and finders’ fees.

3.2 Assessment

NAGPRA provides an amendment to United States cultural property law reflecting

human rights and indigenous perspectives. It has confronted social and historical

wrongs and legally acknowledged ongoing lives, cultures, and beliefs of precolo-

nial, indigenous groups, which are separate from and incompatible with large-scale

western structures and majority interests. Thereby, the concept of cultural affiliation

is more than simply an evidentiary term in determining ownership in Native

American cultural property. It is more than a means to restore possession or control

of objects that Native American tribes and Native Hawaiian groups have arguably

never relinquished or lost into what property law calls full ownership. It is a concept

57 NAGPRA, 25 U.S.C. § 3002(a).58 NAGPRA, 25 U.S.C. § 3002(a)(1).59 NAGPRA, 25 U.S.C. § 3002(a)(1)(A).60 NAGPRA, 25 U.S.C. §§ 3002(a)(1)(B) and (C), and McKeown and Hutt, supra note 35, at

pp. 187–188.


that, on the one hand, ultimately triggers indigenous peoples to re-establish shared

identity and new cultural values in a changed political, economic, and cultural

environment. On the other hand, it requires western institutions to learn about and

possibly reshape cultural history by respecting indigenous values. With extended

repatriation obligations of western institutions, NAGPRA stipulates a limited shift

of the power of decision onto Native American tribes and Native Hawaiian

organisations. Yet despite the expected detrimental effects of such a shift,

NAGPRA’s process, which has lasted for more than 20 years, shows the contrary.

Repatriations did not lead to the emptying of collections, and Native American

participation in the process had a highly stimulating effect on all parties involved.

The United States Government Accountability Office Report to Congressional

Requesters of July 2010 (GAO Report) inspected the NAGPRA work performed by

eight key federal agencies with substantial collections of Native American cultural

property.61 The number of historical objects of these eight agencies ranged from

5.7 million to 122.5 million or 589,796 cubic feet (10,701 m3) each.62 Of these, a

mere 209,626 objects, to date, have been identified as culturally affiliated NAGPRA

human remains and associated funerary objects, which ought to be repatriated. Less

than three-quarters of them (141,027) have indeed been repatriated.63 In compari-

son with the millions of historical objects stored in the collections of the eight GAO

Report agencies, these numbers are minimal. A large undisclosed number of Native

American objects remain in the collections, and there is no indication that the size

of the collections would not be able to cope with further NAGPRA repatriations.64

The reason for the limited repatriation activities is the reluctance of Native

American tribes to require the return of their objects. The Navajo Nation, for

example, which was the receiver of the Pectol Shields,65 does not generally require

repatriation of human remains. They foster the predominant belief that contact with

the dead may sicken or kill the contaminated person.66 The Hopi amended their

encompassing repatriation policy after having evaluated chemicals on the returned

objects as posing a health risk for their people. Such chemical products were

61 Interior’s Bureau of Indian Affairs (BIA), Bureau of Land Management (BLM), Bureau of

Reclamation (BOR), United States Fish andWildlife Service (FWS), National Park Service (NPS),

Agriculture’s United States Forest Service, the United States Army Corps of Engineers (Corps),

and the Tennessee Valley Authority (TVA). US GAO, supra note 43, at pp. 51 and 53.62 US GAO, supra note 43, at p. 7.63 Ibid., at p. 45.64 The activities vary from agency to agency. Some have already published thousands of notices of

inventory completion and several notices of intent to repatriate cultural items. Others, such as the

Tennessee Valley Authority, have not yet established cultural affiliations for any of their

NAGPRA items. US GAO, supra note 43, at pp. 21, 46 and 53.65 See supra Sect. 3.1.1.66 John Holiday and Robert S. McPherson, A Navajo legacy: The life and teachings of JohnHoliday, Norman: University of Oklahoma Press, 2005, at note 11 to pp. 235–239.

3.2 Assessment 65

applied for the better preservation of the objects.67 That is why an amendment to

NAGPRA’s Regulations now stipulates a duty of museum officials or federal

agency officials to inform the recipients of repatriations of any presently known

treatment of the human remains or objects ‘with pesticides, preservatives, or other

substances that represent a potential hazard to the objects or to persons handling the

objects’.68 An important limiting factor for repatriations is the example of what

Wendy Teeter and Hidonee Spoonhunter, the Curator and Assistant Curator of

Archaeology of the UCLA Fowler Museum in Los Angeles, found with the

Sealaska Corporation who came to investigate the Fowler Museum’s collection.

This native corporation, owned by over 20,000 tribal member shareholders from the

Tlingit, Haida, and Tsimshian people,69 looked at 4,000 objects of the museum with

possible cultural affiliation. They came out with few objects in which they were

interested and ultimately decided to pursue just the repatriation of a Chilkat blanket,

which they needed for ceremonial use.70 It is thus not only spiritual beliefs, lack of

cultural reburial protocols, lack of burial sites, or lack of financial resources that

hinder a more extensive NAGPRA process. It is also a moderate reservation of the

tribes and organisations vis-a-vis repatriation or a lack of interest. Wendy Teeter

and Hidonee Spoonhunter never experienced unreasonable or unethical requests.

This has been the case over the last 20 years of NAGPRA, and it is not expected that

this tendency will drastically change in the future.

Museums and agencies generally benefit from the NAGPRA process even more

than the Native Americans. During the cultural affiliation process, the involved

tribes contribute a lot of information and knowledge about the objects, their use,

cultural protocols, and history, thereby substantially enhancing their value.71 Many

long-stored cultural objects, thought to be worthless, gain new meaning in the

exchange with the continuing cultures. The repatriations and reburials of human

remains are important activities in re-establishing a better relationship with Native

American tribes. Furthermore, the NAGPRA process uncovers possibly poor curat-

ing practices of museums and federal agencies, along with poor historical records

and documentation.72 It challenges archaeologists, curators, and other museums

and agency personnel to the benefit of the collections. At the same time, it puts

responsibility back on Native Americans on their way to reconnecting the loose

67Micah Loma’Omvaya, ‘NAGPRA artefact repatriation and pesticides contamination: The Hopi

experience’ (2001) Collection Forum, 17 (1–2), pp. 30–37.68 NAGPRA Regulations, 43 C.F.R. §10.10(e). In detail, see Lydia Grunstra, ‘The duty under

NAGPRA to inform repatriation recipients of potentially hazardous substances: A best-practice

guide’, in Sherry Hutt and David Tarler (eds), Yearbook of cultural property law 2010, Walnut

Creek: Left Coast Press, 2010, pp. 237–258.69 See Sealaska, ‘About us’, available at http://www.sealaska.com/page/about_us.html.70Wendy Teeter and Hidonee Spoonhunter, the Curator and Assistant Curator of Archaeology of

the UCLA Fowler Museum in Los Angeles, Interview, undertaken on 16 March 2011, on file with

the author.71 Ibid.72 US GAO, supra note 43, at pp. 17 and 29.


http://www.sealaska.com/page/about_us.html

ends of their traditional lives.73 NAGPRA encourages tribes to redevelop lost

cultural protocols and ceremonies for the reburial of human remains.74 They have

to remember or re-establish cultural practices and ceremonies since only sacred

objects for the practice of Native American and cultural patrimony with ongoing

importance are repatriated.75 Bands have to re-form as distinct groups with their

own separate identity, since only recognised tribes may claim repatriations.76 At the

same time, they have to negotiate with other tribes to sort out competing repatri-

ation requests. NAGPRA states that in such cases federal agencies and museums

may keep the item until the requesting parties reach agreement or the dispute is

otherwise resolved.77 And last but not least, NAGPRA encourages the development

of tribal museums and cultural centres, the number of which has already surpassed

150 in the United States.78

In short, NAGPRA has fostered new partnerships and cooperation between

scientists and Native Americans and ‘redefined the scope of a museum’s fiduciary

duties without draining collections’.79 The NAGPRA process challenges the

involved parties but at the same time stimulates a new booming interest in Ameri-

can or Native American cultural diversity. Allegedly, the upgrading of the Native

American cultures even has a macroeconomic benefit. It would be worth evaluating

NAGPRA’s impact on cultural self-esteem, involvement in majority activities,

knowledge, health, and the development of economic independence.80 In compari-

son, the financial investments for the NAGPRA process are minimal. Federal

agencies spend only a fraction of their budgets on NAGPRA activities.81 Grants

73 Teeter and Spoonhunter, supra note 71.74 US GAO, supra note 43, at p. 49.75 NAGPRA, 25 U.S.C. §§ 3001(3)(C) and (D).76 NAGPRA, 25 U.S.C. § 3001(7).77 NAGPRA, 25 U.S.C. § 3005(e). US GAO, supra note 43, at p. 49.78 Gunn, supra note 11, at p. 522.79 Nafziger, ‘Protection and repatriation of indigenous cultural heritage in the United States’, supra

note 14, at p. 71.80 President Obama pointed at Native American health problems in December 2010 in his speech

relating to the United States’ endorsement of UNDRIP: ‘We know that Native Americans die of

illnesses like diabetes, pneumonia, flu – even tuberculosis – at far higher rates than the rest of the

population.’ ‘Obama backs U.N. indigenous rights declaration’, Reuters (16 December 2010),

available online at http://www.reuters.com/article/2010/12/16/us-obama-tribes-

idUSTRE6BF4QJ20101216. On the Native American health problematic in general, see The

Harvard project on American Indian economic development, The state of the Native nations:Conditions under U.S. policies of self-determination, New York: Oxford University Press, 2008, at

pp. 219–225. On the relationship between a flourishing cultural sector and the socioeconomic

development of the Maori peoples, see Jessica C. Lai, ‘Maori culture in the modern world: Its

creation, appropriation and trade’ University of Lucerne, Switzerland, i-call Working Paper

No. 2 (2010), at pp. 14–17, available at http://www.unilu.ch/files/i-call_working_paper02_lai.pdf.81 The Bureau of Land Management, for example, with an agency budget of US$ 1.3 billion in the

2010 fiscal year, reported a budget of US$ 15.7 million for cultural resources for 2009. Only US$

69,286 was expended for NAGPRA compliance. US GAO, supra note 43, at p. 20.

3.2 Assessment 67

http://www.reuters.com/article/2010/12/16/us-obama-tribes-idUSTRE6BF4QJ20101216


http://www.unilu.ch/files/i-call_working_paper02_lai.pdf

awarded to tribes and museums for repatriation projects, on average, do not exceed

US$40,000–60,000 each (total around US$2 million/year).82

3.3 NAGPRA from an International Perspective

3.3.1 Can Cultural Affiliation Serve as a Standard BeyondUnited States’ Law?

The claim for cultural property repatriations of indigenous peoples has reached an

international human rights level. UNDRIP, the most specific though non-binding

human rights instrument, requires—like NAGPRA—neither prior ownership nor

any kind of title to the objects for indigenous peoples to access or claim for

restitution of ‘their’ objects.83 The reference to ‘their’—meaning the indigenous

peoples’ cultural property—leaves open what allocation concept shall apply.

This is where NAGPRA’s cultural affiliation concept could step in and serve as

an example of how UNDRIP’s cultural property provisions could be implemented

and turned into practicable and enforceable law. It may provide an appropriate

concept along cultural lines with the avoidance of narrow property thinking.

However, it is necessary to keep in mind that several factors and legal limits that

are particular to the United States helped NAGPRA and its cultural affiliation

concept to succeed. Such preconditions might vary substantially in other states

and require an accommodated approach.

3.3.2 Factors to be Considered when Implementing CulturalAffiliation

NAGPRA initiated and carries out a certain redistribution process of Native Amer-

ican cultural property in the United States. This is politically challenging, as

redistribution processes may cause legal insecurity or—especially in the case of

land redistribution—even political destabilisation.84 NAGPRA, however, left no

space for legal insecurity to arise. As a federal statutory Act, it enjoys firm

enforcement leverage under the federal rule of law. Furthermore, NAGPRA’s

redistribution process is limited to old and newly excavated specifically defined

82 Ibid., at pp. 88–89.83 See infra Sect. 4.1.1.84 Restitution or redistribution programmes do generally not work in fragile states and are even

detrimental. Daniel Fitzpatrick, ‘Possession, custom and social order: Property rights in a fragile

state’, 2nd Annual Meeting of the Law, Property and Society Association (ALPS), Washington D.

C., 4–5 March 2011 (Presentation).



tangible, moveable Native American cultural property, which is another reason why

the redistribution process is far from having a politically destabilising effect.

Nevertheless, many more defining and limiting factors and circumstances were

necessary for NAGPRA to be passed and to succeed. They equally need to be

considered and taken into account when looking at the cultural affiliation concept as

a possible implementation standard for the UNDRIP provisions in other countries

or at the international level.

A first important factor is the special legal and political relationship between the

Federal Government and the Native American tribes in the United States. This

relationship is rooted in what Chief Justice Marshall described as a ‘ward relation-

ship’, which developed into a trust doctrine and a system of federal Indian law

(of which NAGPRA forms a part).85 This special relationship between the Federal

Government and Native Americans today stands in a tradition of preferential

treatment and affirmative action on behalf of Native Americans and Native Ameri-

can tribes86 even against possible equal rights concerns.87 It legitimised the Federal

Government to beneficially treat Native American repatriation claims and to advo-

cate redistribution of Native American property on their behalf. In every other

country where indigenous peoples do not enjoy a similar position within the state’s

structure, the enforcement of a legal redistribution of cultural property might cause

political difficulties with other minority groups.

Furthermore, in other cases, a legal federal act such as NAGPRA may not be

appropriate to implement human rights standards. Indigenous peoples could princi-

pally object to the subjugation of their affairs under state law and to legal definitions

that form part of western tradition.88 NAGPRA exemplifies, however, that state

law, if drafted carefully, is able to successfully bridge exactly such underlying

conflicts.89

When looking at NAGPRA, one must also not forget that NAGPRA did not have

to resolve ab initio the usually very difficult question of who should be the

beneficiaries of the redistribution process. The Act could rely on previous common

and statutory federal laws that contain definitions and recognition procedures for

Native Americans and Native American tribes.90 It furthermore profited from a

well-developed integration of Native American tribal realities into United States

law as the result of a long-ranging social, political, and legal process. Thereby,

NAGPRA and especially its cultural affiliation concept benefit substantially from

85Cherokee Nation v State of Georgia (1831) 5 Peters 178, at p. 183 Marshall J; see supra section

‘In the United States’.86 Carole Goldberg, ‘American Indians and preferential treatment’ (2001) UCLA Law Review,49, pp. 943–989, at pp. 943–955.87 Ibid., at pp. 950–955.88 Rosemary J. Coombe, ‘The properties of culture and the politics of possessing identity: Native

claims in the cultural appropriation controversy’ (1993) Canadian Journal of Law and Jurispru-dence, 6 (2), pp. 249–285, at p. 275.89 See also Humphrey and Verdery, supra note 9, at pp. 13–14.90 See supra section ‘In the United States’.

3.3 NAGPRA from an International Perspective 69

the large amount of work invested in updating the United States’ colonial history.

The important cultural knowledge and common understanding gained from that

process substantially helps the NAGPRA process to work in practice.

Last but not least, of great importance for NAGPRA’s success is the fact that the

government runs and financially supports the process. This shows that American

society was ready to face the consequences of its colonial history. NAGPRA is thus

structurally, politically, and culturally well embedded and can benefit not only from

the availability of know-how and resources but also from support in society.

3.3.3 Limitations to be Considered when ImplementingCultural Affiliation

3.3.3.1 The Exclusion of Private Parties

Probably the most important limitation in NAGPRA that helped the Act to be

passed is its narrow definition of the affected addressees. Only United States federal

agencies and federally funded museums have to follow NAGPRA’s repatriation

obligations.91 In this sense, NAGPRA explicitly states that the Act ‘should not be

construed to establish a precedent with respect to any other individual, organization

or foreign government’.92

NAGPRA thus remains without obvious effect on private entities (other than the

Native American beneficiaries) that do not receive federal funds. Thereby, it

circumvents the most difficult problem of any redistribution process, which is the

possible infringement of the right to private property of individuals. In the United

States, this right to private property is enacted in the Fifth Amendment of the

Constitution.93 NAGPRA nevertheless has two sections that directly affect the

individual property of third parties. For objects excavated or discovered on federal

or tribal lands after 16 November 1990, NAGPRA—by law—imposes ‘native

ownership’ upon the Native Americans.94 As a consequence, it entitles the exlege Native American owners to civil property claims against any individual finder

or future possessor of such objects. Thereby, NAGPRA itself and the cultural

affiliation prong are decisive and derogate other private property finder’s law.95

91 NAGPRA, 25 U.S.C. §§ 3001(4) and (8).92 NAGPRA, 25 U.S.C. § 3010.93 The Fifth Amendment protects private property from being taken for public use without just

compensation. The Constitution of the United States, Amendment 5 (passed 25 September 1791,

ratified 15 December 1971). For possible Fifth Amendment implications of NAGPRA, 25 U.S.C. §

3002 in cases of inadvertent discovery of NAGPRA on reservation fee lands, see Ralph

W. Johnson and Sharon I. Haensly, ‘Fifth amendment takings implications of the 1990 Native

American Graves Protection and Repatriation Act’ (1992) Arizona State Law Journal, 24, pp.151–173.94 NAGPRA, 25 U.S.C. § 3002. See supra Sect. 3.1.3.95 NAGPRA, 25 U.S.C. § 3002(a).


The second NAGPRA section that goes beyond the federal and Native American

relationship is 18 U.S.C. § 1170, which penalises illegal trafficking in Native

American objects. It includes the deliberate sale, purchase, use for profit, or

transportation for sale or profit of human remains and cultural items.96 In conse-

quence, anybody claiming or paying money for any Native American human

remains within or outside the United States territory runs the risk of committing a

NAGPRA crime.97 The effect is that human remains of Native Americans have

become res extra commercium. With regard to cultural items, trafficking is

penalised if they were obtained in violation of NAGPRA’s ownership or permit

provisions or in violation of NAGPRA’s repatriation provisions (by removing an

object from the repatriation process, for example).98 In both instances, a criminal

conviction can be avoided if the offender proves a right of possession to the object

that is, however, as stated above, subject to the voluntary consent of the Native

American individual or group with authority to alienate the object.99

These applications of NAGPRA on private persons have been challenged in

court. But the Court of Appeals for the Tenth Circuit confirmed the applicability of

18 U.S.C. § 1170 to individuals in United States v Kramer as follows100:

It is true that Congress enacted NAGPRA to protect Native American human remains,

funerary objects, sacred objects, and objects of cultural patrimony, and to repatriate such

objects currently held or controlled by federal agencies and museums. . . . However, ‘togive teeth to this statutory mission,’ section 4 of NAGPRA amended Title 18 of the United

States Code to criminalize trafficking in Native American human remains and cultural

items, in an effort to eliminate the profit incentive perceived to be a motivating force behind

the plundering of such items. . . It is clear that the criminal provision, 18 U.S.C. § 1170(b),

to which defendant pleaded guilty, encompasses violations by individual traders such as

Kramer.

In summary, NAGPRA’s criminal law provision delicately extends its scope of

application, not directly by a duty to repatriate but by confining illegal trade or

trafficking with Native American cultural property. As will be shown, the United

States is not the only country that thereby chose a criminal law approach. Other

countries have started to prevent and pursue cultural property law infringements

96 18 U.S.C. § 1170(a) and (b).97McKeown and Hutt, supra note 35, at p. 207; and Roberto Iraola, ‘A primer on the criminal

penalty provisions of the Native American Graves Protection and Repatriation Act’ (2003-2004)

American Indian Law Review (28), pp. 431–445, at p. 435.98McKeown and Hutt, supra note 35, at p. 208; and Iraola, supra note 98, at pp. 435–437.99 NAGPRA, 25 U.S.C. § 3001(3). Iraola, supra note 98, at p. 436; and Trope and Echo-Hawk,

supra note 25, at p. 73.100United States v Kramer (1999) 168 F 3d 1196 (CA10, NM), at pp. 1201–1202.

3.3 NAGPRA from an International Perspective 71

through penal law.101 An initiative launched by the UN Office on Drugs and Crime

in 2009 proceeds the idea on an international level.102

3.3.3.2 The Exclusion of International Claims

NAGPRA further limits its field of application to domestic issues. It is not applica-

ble to and contains no regulations for international cultural property repatriation

claims of Native Americans. NAGPRA explicitly provides that it should not be

construed to establish a precedent with respect to foreign governments.103 Thus, the

Act avoids extraterritorial effect and any conflict with Native American cultural

property possessions outside the United States. This is in line with the international

principle that states respect each other’s territoriality and the property rights

attached thereto. The Draft Declaration on Rights and Duties of States of 1949

formulated such territorial property rights by ensuring the right of every state to

‘exercise jurisdiction over its territory and over all persons and things therein’.104

This is deployed in the genuine universal juridical freedom of states to use and

exploit their territories whenever they consider it desirable for their progress and

economic development.105

However, these international principles would not have prohibited the legislators

of NAGPRA from legally empowering and obliging the Federal Government to

support international cultural property claims of Native Americans. One may even

raise the question as to whether the fiduciary duty of the Federal Government

vis-a-vis the Native American tribes, which emanates from their special relation-

ship, would not require this support by the Federal Government even without an

explicit legal provision.106

101 Such countries are, for example, the United Kingdom and Switzerland. See infra section ‘The

United Kingdom’ and ‘Switzerland’.102 UN Office on Drugs and Crime (UNODC), ‘Open-ended intergovernmental expert group on

protection against trafficking in cultural property’, available at http://www.unodc.org/unodc/en/

organized-crime/trafficking-in-cultural-property-expert-groups.html.103 NAGPRA, 25 U.S.C. § 3010.104 UN, General Assembly, ‘Draft Declaration on Rights and Duties of States’, Resolution,(UN Doc. A/RES/375 (IV), 6 December 1949), Article 2.105 See, for example, UN, General Assembly, ‘Right to exploit freely natural wealth and

resources’, Resolution, (UN Doc. A/RES/626 (VII), 21 December 1952); ‘Permanent sovereignty

over natural resources’, Resolution, (UN Doc. 1803 (XVII), 14 December 1962); and ‘Charter of

economic rights and duties of states’, Resolution, (UN Doc. 3281 (XXIX), 12 December 1974).106 On this question, see infra section ‘States Representing Indigenous Interests’.


http://www.unodc.org/unodc/en/organized-crime/trafficking-in-cultural-property-expert-groups.html


3.4 Conclusions

NAGPRA is a pioneer in regulating indigenous peoples’ cultural property claims. It

requires going beyond property thinking and stands as a statute ‘which incorporates

indigenous peoples’ perspectives and confirms the belief that indigenous peoples’

right to control the fate and integrity of their cultural property is a valuable tool of

self-determination and a necessary component of cultural survival’.107 Cultural

affiliation and repatriation turned out to be successful instruments in stimulating a

vibrant exchange between scientists, museums, and tribes, adding value to many

collections and objects. In consequence, NAGPRA may be considered as a working

example from which cultural property lawyers can learn that the property law

principle of looking into the act of acquisition is not the only just solution for

allocating cultural property. The cultural affiliation prong bridges different property

concepts that are based on very different world views, and it better complies with

human rights standards than western private property law principles. NAGPRA and

its cultural affiliation concept may thus serve as an example for countries that are

ready to implement UNDRIP’s provisions on tangible, moveable cultural property

of indigenous peoples. However, when implementing NAGPRA’s principles, one

not only has to consider the political and legal factors that helped NAGPRA to be

passed and to succeed; it is also important to acknowledge the limits of NAGPRA,

even if they do not comply with the provisions of UNDRIP.

107 Angela Riley, ‘Indian remains, human rights: Reconsidering entitlement under the Native

American Graves Protection and Repatriation Act’ (2002) Columbia Human Rights Law Review,34, pp. 49–94, at p. 55.

3.4 Conclusions 73

Chapter 4

International Cultural Property Repatriation

Claims of Indigenous Peoples

4.1 International Human Rights Law1

As a response to indigenous peoples’ claims, international human rights law

developed a ‘new morality of amending historical injustices’.2 It opened its scope

of application from protecting individual rights to the protection of collective rights

of indigenous peoples.3 While on behalf of individuals there exists no general

human ‘right to cultural property’ or even a human ‘right to cultural property

repatriation’,4 the question is whether the new collective human rights law has

developed a right of indigenous peoples to repatriation of their cultural property.

1 This section draws on, updates, and amends previous work of the author. See Karolina Kuprecht,

‘Human rights aspects of indigenous cultural property’, in Kerstin Odendahl and Peter J. Weber

(eds), Kulturguterschutz – Kunstrecht – Kulturrecht: Festschrift fur Kurt Siehr zum 75. Geburtstagaus dem Kreise des Doktoranden- und Habilitandenseminars “Kunst und Recht”, Baden-Baden,etc.: Nomos, et al., 2010.2 Elazar Barkan, The guilt of nations: Restitution and negotiating historical injustices, 1st edn,New York: Norton, 2000, at p. 160.3 Asbjørn Eide, ‘Economic, social and cultural rights as human rights’, in Asbjørn Eide, et al. (eds),

Economic, social and cultural rights: A textbook, 2nd edn, Dordrecht etc.: Martinus Nijhoff

Publishers, 2001, pp. 9–28, at pp. 23–25. On the nature of human rights in general, see Malcolm

N. Shaw, International law, 6th edn, Cambridge: Cambridge University Press, 2008, at

pp. 265–272; and Craig Scott, ‘Interdependence and permeability of human rights norms: Towards

a partial fusion of the international covenants on human rights’ (1989) Osgoode Hall Law Journal,27, pp. 769–878.4 Kerstin Odendahl, Kulturguterschutz: Entwicklung, Struktur und Dogmatik eines ebenenuber-greifenden Normensystems, Tubingen: Mohr Siebeck, 2005, at p. 486.


75

4.1.1 UNDRIP

An important international human rights source of relevance for indigenous cultural

property repatriation claims is the soft law regulations in the UN Declaration on the

Rights of Indigenous Peoples (UNDRIP).5 This Declaration was adopted by the UN

General Assembly on 13 September 2007, with 143 countries originally voting for

it. By the end of 2010, the United States, Canada, Australia, and New Zealand,

which had opposed UNDRIP in 2007, also officially declared their endorsement

of it.6

UNDRIP explicitly sets up a redress concept for indigenous peoples’ cultural

property. In Article 12(1), it defines a ‘right to repatriation’ for human remains anda ‘right to the use and control’ for ceremonial objects. Despite this differentiationon the rights level, Article 12(2) emphasises repatriation of human remains and

ceremonial objects by requiring states to ‘enable the access and/or repatriation of

ceremonial objects and human remains in their possession’. Artefacts, which may

be considered as a third category of cultural objects in the Declaration, are consid-

ered in Article 11, together with non-material cultural property such as designs,

ceremonies, technologies, visual and performing arts, and literature. With regard to

these cultural values, UNDRIP contains a ‘right to practise and revitalize their

cultural traditions and customs’ and requires ‘restitution’ if the taking of cultural

property happened without the indigenous peoples’ ‘free, prior, and informed

consent or in violation of their laws, traditions and customs’.

A historical analysis of the provisions reveals that the ‘right to repatriation’

encompassed a much wider range of cultural property in a former version of

UNDRIP. The UN Draft Declaration on Indigenous Peoples adopted by the UN

Sub-Commission on Prevention of Discrimination and Protection of Minorities in

1994 stated in draft Article 12 a ‘right to repatriation’, including all ‘cultural,

intellectual, religious and spiritual property taken without their free and informed

consent or in violation of their laws, traditions and customs’.7 This Draft, based on

the work of the Special Rapporteur, Daes, led to her 1993 Study on the protection of

the cultural and intellectual property of indigenous peoples.8 In her Final Report of

1995 on the protection of the heritage of indigenous people, however, she changed

5UN Declaration on the Rights of Indigenous Peoples (UNDRIP), General Assembly Resolution

61/295 (UN Doc. A/61/L.67 and Add.1) (adopted on 13 September 2007).6 UNPFII, ‘News and Media’ available at http://social.un.org/index/IndigenousPeoples/

NewsandMedia/MoreNewsandMedia/tabid/1184/currentpage/1/Default.aspx.7 UN, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and

Protection of Minorities, ‘Draft United Nations Declaration on the Rights of Indigenous Peoples’,

(UN Doc. E/CN.4/Sub2/1994/56, 26 August 1994), Annex, Article 12.8 United Nations (UN), Commission on Human Rights, Sub-Commission on Prevention of Dis-

crimination and Protection of Minorities, Chairperson-Rapporteur Erica-Irene Daes, ‘Discrimina-

tion against indigenous peoples: Study on the protection of the cultural and intellectual property of

indigenous peoples’, (UN Doc. E/CN.4/Sub.2/1993/28, 28 July 1993) [hereinafter Daes, Study

1993].

76 4 International Cultural Property Repatriation Claims of Indigenous Peoples

http://social.un.org/index/IndigenousPeoples/NewsandMedia/MoreNewsandMedia/tabid/1184/currentpage/1/Default.aspx


the guidelines and recommended a cascade of rights by distinguishing between

human remains and funerary objects, which ‘must be returned’, and moveablecultural property, which ‘should be returned wherever possible’, ‘particularly if

shown to be of significant cultural, religious or historical value to them’.9 Her

revised draft principles and guidelines of 19 June 2000 remained principally the

same and only added ‘documentation’ to the category of human remains and

funerary objects.10 In 2005, after a slow debating process and the extension of the

mandate of the Working Group of UNDRIP into the second International Decade of

the World’s Indigenous Peoples (2005–2012), the Working Group’s Chairperson-

Rapporteur, Luis-Enrique Chavez, prepared a compilation of the proposals filed up

to this point. At the same time, he extracted a new version of the UN Draft

Indigenous Peoples Declaration and defined as a common ground the reduction of

absolute repatriation rights to human remains. In this version, states received

discretion in deciding upon the measures of how to implement the ‘right to use

and control’ of ceremonial objects and the rights with regard to other cultural

property.11 In summary, Daes and Chavez both suggested a ‘right to repatriation’

for human remains but not explicitly for other cultural objects. In the final version

of UNDRIP, however, ‘repatriation’ was re-added into section 2 of Article 12 as a

measure to be taken by the states. The same is true for the addition of ‘restitution’ as

one possible measure for redress with regard to other cultural property such as

artefacts.The final version thus specified the originally all-encompassing repatriation right

by applying a later-suggested cascade approach, which attaches different rights to

different cultural property categories and leaves a relatively broad scope of action

of states.

UNDRIP has had a massive impact on the academic and human rights activists’

fields, as well as on public awareness even though it is in principle not legally

binding. After its adoption, the UNPFII stated: ‘[UNDRIP] provides a detailing or

interpretation of the human rights enshrined in other international human rights

instruments of universal resonance – as these apply to indigenous peoples and

indigenous individuals’.12 The question is, what international human rights

9UN, Commission on Human Rights, Sub-Commission on Prevention of Discrimination and


enous peoples: Protection of the heritage of indigenous people’, Final Report, (E/CN.4/Sub.2/1995/26, 21 June 1995), Annex, at paras 21–22 [hereinafter Daes, Final Report 1995].10 UN, Commission on Human Rights, Sub-Commission on the Promotion and Protection of

Human Rights, Chairperson-Rapporteur Erica-Irene Daes, ‘Human rights of indigenous peoples:

Report of the seminar on the draft principles and guidelines for the protection of the heritage of

indigenous people’, (UN Doc. E/CN.4/Sub.2/2000/26, 19 June 2000), Annex, at para. 19.11 UN, Commission on Human Rights, Chairperson-Rapporteur Luis-Enrique Chavez (Peru),

‘Report of the working group established in accordance with Commission on Human Rights

resolution 1995/32 of 3 March 1995 on its tenth session’, (UN Doc. E/CN.4/2005/WG.15/2,

1 September 2005), Articles 12 and 13.12 This statement was available under UNPFII, ‘Frequently asked questions’, available at http://

www.un.org/esa/socdev/unpfii/en/declaration.html.

4.1 International Human Rights Law 77

http://www.un.org/esa/socdev/unpfii/en/declaration.html

http://www.un.org/esa/socdev/unpfii/en/declaration.html

instruments was the UNPFII referring to that address indigenous peoples’ cultural

property repatriation claims? Is there binding human rights law that would confirm

UNDRIP’s cascade of rights?

4.1.2 Collective Human Rights in Binding International Law

4.1.2.1 The ILO Convention 169

The most encompassing binding international human rights convention with

express and specific rights on behalf of indigenous peoples is the ILO Convention

169. It clearly moves away from the integrationist and assimilationist content of its

predecessor, the ILO Convention 107, and implements a ‘new sensitivity towards

the affirmation of indigenous peoples’ rights to perpetuate and thrive as distinct

societies, cultures, and territorial entities’.13

The first provision referring to indigenous cultural property is Article 4(1),

which, inter alia, obliges Member States to adopt appropriate measures for

safeguarding property and cultures of the peoples concerned. The Convention

thereby reveals a preserving, future-orientated approach without any reference to

a reparatory function of the provision. Repatriation falls beyond the scope of its

wording. The second relevant provision requires states to take necessary measures

in recognition and protection of ‘the social, cultural, religious and spiritual values

and practices of these peoples’.14 This might include the allocation of an important

object to an indigenous tribe in order to enable it to practise a ceremony, for

example. However, the provision leaves the decision about such measures at the

full discretion of the Member States and does not provide for a ‘right’ or ‘duty’ to

repatriation. The only express ‘reparation’ provisions in the ILO Convention 169

are limited to compensation for damages due to natural resources exploration and

exploitation pertaining to indigenous peoples’ lands,15 as well as for loss or injury

suffered by relocated persons.16

To sum up, the language of the Convention on cultural property issues remains

vague and not substantiated. It lacks repatriation provisions similar to the ones in

UNDRIP. In addition, the ILO Convention 169 applies to a very limited geographi-

cal territory. Despite its international orientation and justification, it has a clear

focus on South and Central America. Of the more than 20 states that have ratified

the Convention, more than ten are South or Central American.17 None of the

13 Luis Rodrıguez-Pinero, Indigenous peoples, postcolonialism, and international law: The ILOregime (1919–1989), Oxford New York: Oxford University Press, 2005, at p. 291.14 ILO Convention 169, Article 5(a).15 ILO Convention 169, Article 15(2).16 ILO Convention 169, Article 16(5).17 See ILO, ‘Convention No. C169’, available at http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169.


http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169

western states, known as cultural property import nations, have ratified the Con-

vention so far.

4.1.2.2 The International Covenant on Civil and Political Rights

(CCPR) and the International Covenant on Economic, Social

and Cultural Rights (CESCR)

One may further find collective human rights in the UN Bill of Rights18; the three

universal human rights standards, including the Universal Declaration of Human

Rights (UDHR)19; the International Covenant on Civil and Political Rights

(CCPR)20; and the International Covenant on Economic, Social and Cultural Rights

(CESCR).21 CCPR and CESCR constitute broadly accepted binding international

law. There are 167 states that are parties to the CCPR and 160 to the CESCR at the

time of writing.22

With regard to indigenous peoples’ cultural property repatriation claims, the

following three human rights stipulated in the UN Bill of Rights are of relevance:

the right of peoples to self-determination; the collective right of minorities to

culture, religion, and language; and the right to take part in cultural life.

The Right to Self-determination [Article 1(1) CCPR and CESCR]

The right of peoples to self-determination goes back to an international political

statement that affirmed states’ self-determination as a principle to promote friendly

relations among nations without being binding in character.23 In a decolonisation

18 For the term ‘UN Bill of Rights’, see Christoph B. Graber, ‘Using human rights to tackle

fragmentation in the field of traditional cultural expressions: an institutional approach’, in

Christoph B. Graber and Mira Burri-Nenova (eds), Intellectual property and traditional culturalexpressions in a digital environment, Cheltenham UK and Northampton MA: Edward Elgar, 2008,

pp. 98–120, at p. 100 [hereinafter Graber, ‘Using human rights to tackle fragmentation’]; and

Henry J. Steiner and Philip Alston, International human rights in context: Law, politics, morals,2nd edn, Oxford: Oxford University Press, 2000, at pp. 138–139.19 UN Universal Declaration of Human Rights (UDHR), General Assembly Resolution 217A (III)

(UN Doc. A/810) (adopted on 10 December 1948).20 UN International Covenant on Civil and Political Rights (CCPR), 999 UNTS 171 and 1057

UNTS 407 (adopted on 16 December 1966, entered into force 23 March 1976).21 UN International Covenant on Economic, Social and Cultural Rights (CESCR), 993 UNTS

3 (adopted on 16 December 1966, entered into force 3 January 1976).22 Status June 2012. See UN, Treaty Collections, ‘Chapter IV. Human rights’, available at http://

treaties.un.org/Pages/Treaties.aspx?id¼4&subid¼A&lang¼en.23 UN Charter, Article 1(2). Shaw, supra note 3, at pp. 251–252; and Christoph B. Graber, Handelund Kultur im Audiovisionsrecht der WTO: Volkerrechtliche, okonomische und kulturpolitischeGrundlagen einer globalen Medienordnung, Bern: Stampfli, 2003, at pp. 90–94 [hereinafter

Graber, Handel und Kultur].


http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en





context, the principle developed into a right of international law to invoke separate

statehood and sovereign independence.24 Today, the principle of self-determination

has additionally achieved a human rights dimension, which has become most

important for indigenous peoples. The UN Human Rights Committee qualified

the right to self-determination as being essential for the effective guarantee and

observance of individual human rights.25 The right is contained in Articles 1(2) and

55 of the UDHR and forms an explicit collective human right in the identical

Articles 1(1) of the CCPR and the CESCR. Its applicability to indigenous peoples is

confirmed in UNDRIP, which states26:

Indigenous peoples have the right to self-determination. By virtue of that right they freely

determine their political status and freely pursue their economic, social and cultural

development.

The right to self-determination applies within the territorial framework of

independent states and cannot be utilised as a legal basis for secession or the

dismantling of sovereign states.27 In this sense, UNDRIP states in Article 46(1)

that nothing in the Declaration shall dismember or impair the territorial integrity

and political unity of sovereign and independent states. In addition, indigenous

peoples share the common sentiment that the right to self-determination does not

constitute a right upon indigenous peoples to re-establish sovereignty but rather

political participation and democratic governance.28

The United States may again serve as an example of how such a right to self-

determination of indigenous peoples has developed throughout constantly changing

state policies. While Native American tribes still concluded treaties with

24 International Court of Justice, ‘Legal consequences for states of the continued presence of South

Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970)’,

Advisory Opinion, Reports, 1971, at pp. 16 and 31; International Court of Justice, ‘Western

Sahara’, Advisory Opinion, Reports, 1975, at pp. 12 and 31–33. See Shaw, supra note 3, at

pp. 251–257; Ian Brownlie, Principles of public international law, Oxford: Oxford University

Press, 2003, at pp. 553–555; and Christian Tomuschat, ‘Self-determination in a post-colonial

world’, in Christian Tomuschat (ed.), Modern law of self-determination, Dordrecht etc.: Martinus

Nijhoff Publishers, 1993, pp. 1–20, at p. 2.25 UN, Human Rights Committee, CCPR General Comment No. 12, Article 1, (UN Doc.

HRI/GEN/1/Rev.1, 1994, adopted 1984), at p. 12.26 UNDRIP, Article 3.27 Shaw, supra note 3, at p. 291; and Brownlie, supra note 24, at pp. 230–231. In Reference ReSecession of Quebec (1998) 161 DLR (4th) 385, at pp. 436–438, the Canadian confirmed that

‘international law expects that the right to self-determination will be exercised by peoples within

the framework of existing sovereign states and consistently with the maintenance of the territorial

integrity of those states’, but also added that the right to unilateral secession may arise, but ‘only in

the most extreme of cases and, even then, under carefully defined circumstances’.28 Jessica C. Lai, ‘The protection of Maori cultural heritage: Post-endorsement of the UN Decla-

ration on the Rights of Indigenous Peoples’ University of Lucerne, Switzerland, I-call Working

Paper No. 2 (2011), at p. 10, available at http://www.unilu.ch/files/i-call_working_paper_2011_

02_lai_maori_cultural_heritage__undrip.pdf [hereinafter Lai, ‘The protection of Maori cultural

heritage’].


http://www.unilu.ch/files/i-call_working_paper_2011_02_lai_maori_cultural_heritage__undrip.pdf


governments until the nineteenth century, the Indian Appropriation Act of 3 March

1871 prohibited treaties with Indian tribes.29 Federal legislation replaced the

treaties. Native American tribes nevertheless kept partial and fragmented sover-

eignty, which widely expanded in the self-determination era between 1962 and

1980. The Indian Self-Determination and Education Assistance Act of 197530 was a

most important piece of legislation in this period. It aimed at strengthening tribal

governmental control over federally funded programmes for Native Americans.31

The Reagan and Clinton Administrations renewed formal government-to-govern-

ment relations with Native American nations,32 and in the 1990s a first ever meeting

between the President of the United States and the heads of the various tribal

governments was convened. President Clinton issued numerous Executive Orders

underscoring such government-to-government relationships.33 Based on this

regained self-determination, the Iroquois even issued their own passports. They

were the reason the Iroquois lacrosse team missed a tournament in 2010, after

England refused to recognise the documents.34 Other countries, however, such as

the Netherlands—where the State Council in The Hague in 1993 decided to accept

that Mohawks could travel with their Indian passports—Germany, Sweden, the

Czech Republic, and Finland accepted Iroquois passports. Even Hillary Clinton as

the United States Minister of Foreign Affairs accepted that American Indians could

travel with them.35

At all levels, the debate about indigenous peoples’ right to self-determination

continues in an abundant flow of literature.36 The right thereby became an

29 The Indian Appropriation Act of 3 March 1871, 25 U.S.C. § 71.30 Indian Self-Determination and Education Assistance Act of 1975, 25 U.S.C. § 450a.31 Carole E. Goldberg, et al., American Indian law: Native nations and the federal system casesand materials, 6th edn, New Providence NJ and San Francisco CA: LexisNexis Matthew Bender,

2010, at pp. 35–39.32 Ibid., at pp. 39–42.33 Ibid., at p. 41.34 ‘American Indians: Gambling on nation-building’, The Economist (7 April 2012) (electronic

version).35 Serv Wiemers and Leo van der Vlist, ‘Hillary Clinton erkende dat paspoort wel: Erken indiaans

paspoort ook hier’, NRC (9 April 2013).36 See, for example, Erica-Irene Daes, ‘An overview of the history of indigenous peoples: Self-

determination and the United Nations’ (2008) Cambridge Review of International Affairs, 21 (1),

pp. 7–26; S. James Anaya, Indigenous peoples in international law, 2nd edn, Oxford: Oxford

University Press, 2004, at pp. 97–128; Christian Tomuschat (ed.), Modern law of self-determina-tion, Dordrecht etc.: Martinus Nijhoff Publishers, 1993; Antonio Cassese, Self-determination ofpeoples: A legal reappraisal, Cambridge: Cambridge University Press, 1996; David Raic, State-hood and the law of self-determination, The Hague: Kluwer Law International, 2002; Robert

McCorquodale (ed.), Self-determination in international law, The library of essays in internationallaw, Aldershot: Ashgate, 2000; Thomas D. Musgrave, Self-determination and national minorities,Oxford: University Press, 2002; Philip Alston (ed.), Peoples’ rights, Oxford: Oxford University

Press, 2005; Terry L. Anderson (ed.), Self-determination: The other path for Native Americans,Stanford Calif.: Stanford University Press, 2006; Mark D. Cole, Das Selbstbestimmungsrechtindigener Volker: Eine volkerrechtliche Bestandsaufnahme am Beispiel der Native Americans in


important rationale for promoting indigenous interests and was evaluated as having

important impacts on indigenous peoples’ development processes.37 The recent era

of Native American self-determination in the United States, for example, seems to

have started a reversal process from the long Native American history of poverty

and associated social ills.38 Since the right to self-determination contains the right

of peoples to freely determine their cultural development, some authors have

argued that—as a precondition to the right to (cultural) self-determination—all

peoples should have the right to reclaim their cultural property.39 It is highly

questionable whether the human right to self-determination itself contains a dimen-

sion that legitimates the rearrangement of existing legal (property) positions.40

However, in its capacity as a universal human right on behalf of indigenous peoples

and their cultural development, its influence on international as well as national

policymaking should not be underestimated.

The Right to Culture of Minorities (Article 27 CCPR)

A human rights provision that even more specifically refers to cultural rights of

groups is Article 27 CCPR.41 It reads as follows:

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to

such minorities shall not be denied the right, in community with the other members of their

group, to enjoy their own culture, to profess and practise their own religion, or to use their

own language.

The Human Rights Committee has repeatedly affirmed that Article 27 CCPR

must be understood as encompassing a dimension that protects indigenous peoples’

den USA, Berlin: Duncker & Humblot, 2009; and Paul G. McHugh, Aboriginal societies and thecommon law: A history of sovereignty, status, and self-determination, Oxford: Oxford University

Press, 2009.37 The Harvard project on American Indian economic development, The state of the Nativenations: Conditions under U.S. policies of self-determination, New York: Oxford University

Press, 2008 [hereinafter ‘The Harvard project’]; and Stephen Cornell and Joseph P. Kalt,

‘Reloading the dice: Improving the chances for economic development on American Indian

reservations’, in Stephen Cornell and Joseph P. Kalt (eds), What can tribes do? Strategies andinstitutions in American Indian economic development, Los Angeles: UCLA, American Indian

Studies Center, 1993, pp. 1–51, at pp. 13–15.38 ‘The Harvard project’, supra note 37, at pp. 9–10.39 See, for example, Ridha Fraoua, Le traffic illicite des biens culturels et leur restitution: Analysedes reglementations nationales et internationales, critiques et propositions, Fribourg: EditionsUniversitaires, 1985, at p. 161.40 See Christiane Freytag, ‘“Cultural Heritage”: Ruckgabeanspruche von Ursprungslandern auf

“ihr” Kulturgut?’, in Frank Fechner, et al. (eds), Prinzipien des Kulturguterschutzes: Ansatze imdeutschen, europaischen und internationalen Recht, Berlin: Duncker & Humblot, 1996,

pp. 175–200, at p. 197.41 UN International Covenant on Civil and Political Rights (CCPR, supra note 20).


collective culture.42 In addition, the Article requires State Parties to take positive

measures for protection despite the negatively expressed terms of the provision.43

The Human Rights Committee recommended to the United States, for example, that

it should take positive steps to protect the Native Americans by a full judicial

review in respect of determinations of federal recognition of tribes.44 However, no

publicly accessible comment or decision of the Human Rights Committee can be

found, in which the Committee has contemplated whether and to what extent

indigenous cultural property repatriation claims may fall under Article 27 or what

positive measures are expected from states in order to fulfil their indigenous

peoples’ right to enjoy culture or to practise religion.

The Right to Take Part in Cultural Life [Article 15(1)(a) CESCR]

Finally, Article 15(1)(a) of the CESCR,45 which contains the right to take part in

cultural life, needs to be considered. In this Article, the Committee on Economic,

Social and Cultural Rights drafted guidelines on the form and content of reports that

State Parties have to submit. They require State Parties to report on the measures

they have taken ‘to promote awareness and enjoyment of the cultural heritage of

national ethnic groups and minorities and of indigenous peoples’.46 In its general

comment on Article 15(1)(a), the Committee on Economic, Social and Cultural

Rights declares that the right to take part in cultural life is especially important for

all indigenous peoples, ‘who have the right to the full enjoyment, as a collective or

as individuals, of all human rights and fundamental freedoms as recognized in the

Charter of the United Nations, the Universal Declaration of Human Rights and

international human rights law, as well as the United Nations Declaration on the

42UN Human Rights Committee, Ivan Kitok v Sweden, Communication No. 197/1985, Suppl.

No. 40, UN Doc. A/43/40, views adopted on 27 July 1988, at pp. 221–230; UN Human Rights

Committee, Bernard Ominayak, Chief of the Lubicon Lake Band v Canada, Communication

No. 167/1984, Suppl No. 40, UN Doc. A/38/40, views adopted on 26 March 1990, at pp. 1–30.

See Matthias A´hren, ‘Protecting peoples’ cultural rights: A question of properly understanding the

notion of states and nations?’, in Francesco Francioni and Martin Scheinin (eds), Cultural humanrights, Leiden and Boston: M. Nijhoff Publishers, 2008, pp. 91–118, at pp. 107–109; Anaya,

Indigenous peoples in international law, supra note 36, at pp. 135–136; Graber, ‘Using human

rights to tackle fragmentation’, supra note 18, at p. 111; and Claire Charters, ‘Reparations for

indigenous peoples: Global international instruments and institutions’, in Federico Lenzerini (ed.),

Reparations for indigenous peoples: International and comparative perspectives, Oxford: OxfordUniversity Press, 2008, pp. 163–195, at pp. 177–181.43 UN, Human Rights Committee, CCPR General Comment No. 23, Article 27, (UN Doc.

HRI/GEN/1/Rev.1, 1994, adopted 1994), at p. 38.44 UN, Human Rights Committee, Concluding Comments on the United States of America,(UN Doc. CCPR/C/79/Add 50, 1995), at para. 37.45 UN International Covenant on Economic, Social and Cultural Rights (CESCR, supra note 21).46 UN, Economic and Social Council, Committee on Economic, Social, and Cultural Rights,

Report on the Fifth Session, Supplement No. 3, (UN Doc. E/1991/23-E/C.12/1990/8, 1991),

at p. 108.


Rights of Indigenous Peoples’.47 The Committee, in addition, defines indigenous

peoples as one of eight categories of persons and communities requiring special

protection under the human right to take part in cultural life.48

Neither the Committee’s guidelines nor its general comment explicitly addresses

the question of whether the human right to take part in cultural life includes a right

of indigenous peoples to repatriation of their cultural property. The general com-

ment, however, subsumes a right of indigenous peoples to control and access their

cultural heritage under Article 15(1)(a) CESCR. First, it explicitly emphasises the

importance of ancestral lands, territories, and resources to indigenous peoples’

communal cultural life and requires state parties to take measures to recognise

and protect the rights of indigenous peoples to own, develop, control, and use such

communal lands, territories, and resources.49 With regard to cultural heritage in

particular, it further literally cites Article 31(1) of UNDRIP and the right of

indigenous peoples to maintain, control, protect, and develop their cultural heritage,

traditional knowledge, and traditional cultural expressions.50 The general comment

finally stipulates the obligation of state parties to adopt specific measures to allow

everyone, individually or in association with others or within a community or

group, to have access to their own cultural and linguistic heritage.51

This right of access to and enjoyment of cultural heritage became the focus of

independent expert and Special Rapporteur Farida Shaheed, nominated by the UN

Human Rights Council in 2009 to report to the Council on the field of cultural

rights.52 In her report of 2011, she emphasised that access to and enjoyment of

cultural heritage is necessary and complementary to the preservation and

safeguarding of cultural heritage, not only as a legal provision enacted in UNESCO,

human rights and regional instruments, the CBD, and national law but also as a state

obligation to take positive and proactive steps and measures.53 She evaluated four

elements of access, (1) physical access, (2) economic access, (3) information

access, and (4) access to decision-making, and their relevance to originators and

47UN, Economic and Social Council, Committee on Economic, Social and Cultural Rights,

General comment no. 21. Right of everyone to take part in cultural life (art. 15, para. 1 (a), ofthe International Covenant on Economic, Social and Cultural Rights), (UN Doc. E/C.12/GC/21,

2009), at para. 7.48 Ibid., at paras 36–37.49 Ibid., at para. 36. For lands and territories, the general comment requires state parties to take

steps for their return, where the lands and territories are inhabited or used without the free and

informed consent of the indigenous peoples. However, ‘resources’ as the category under which

cultural property could be subsumed has been left out from such duty to return. Ibid.50 Ibid., at para. 37.51 Ibid., at para. 49.52 UN, Human Rights Council, ‘Independent expert in the field of cultural rights’, Resolution,(UN Doc. A/HRC/RES/10/23, 26 March 2009); and UN, Human Rights Council, ‘Special Rap-

porteur in the field of cultural rights’, Resolution, (UN Doc. A/HRC/RES/19/6, 3 April 2012).53 UN, Human Rights Council, Independent expert in the field of cultural rights Farida Shaheed,

‘Report’, (UN Doc. A/HRC/17/38, 21 March 2011), at paras 2, 18–57 and 64–72.


source communities, individuals and communities who consider the cultural heri-

tage in question an integral part of their life, scientists, artists, and the general

public.54 She concluded with recommendations to states, professionals working in

the field of cultural heritage and cultural institutions, researchers, and the tourism

and entertainment industries.55 Throughout the report, indigenous peoples receive

central attention, and with regard to their calls for repatriation of cultural heritage,

Shaheed underlined ‘the need to build stronger relationships between cultural

institutions and communities, including indigenous peoples, and to develop good

practices, building on existing initiatives’.

In summary, indigenous peoples clearly are central right-holders with regard to

the right to take part in cultural life and the element of access to cultural heritage.

While this right does not contain an entitlement to repatriation as far-reaching as the

one in UNDRIP, it nevertheless increases the imperative on states and stakeholders

to actively open their collections and enable indigenous peoples to enjoy their

cultural heritage.

4.1.2.3 Interim Conclusion

As far as international treaty law is concerned, there are no universally binding

human rights instruments that refer specifically and explicitly to indigenous

peoples’ cultural property repatriation claims. It would require an extensive inter-

pretation and application of the right to self-determination, in combination with the

right to culture of minorities and the right to take part in cultural life, to construct a

case in support of repatriations of cultural property to indigenous peoples.

However, the general comment of the Committee on Economic, Social and

Cultural Rights of 2009, which is a relatively recent guideline to Article 15(1)

(a) CESCR, clearly shows that UNDRIP is exercising an important influence on the

interpretation of binding international human rights law in the field of culture. The

comment did not integrate the central UNDRIP rights to cultural property in

Articles 11 and 12. Yet, it explicitly considers in accordance with Article 31(1)

UNDRIP a collective right of indigenous peoples to control and access their cultural

heritage. The question remains, in what relation this binding CESCR right of

indigenous peoples stands to their non-binding right to repatriation, use, and control

of cultural property under UNDRIP? Does international customary law possibly

give an answer? Does it fill what can be considered as a lacuna in view of the

open question whether indigenous peoples have an international human right to

repatriation of their cultural property?56

54 Ibid., at paras 60 and 62.55 Ibid., at para. 80.56 Tullio Scovazzi, ‘La notion de patrimoine culturel de l’humanite dans les instruments

internationaux’, in James A. R. Nafziger and Tullio Scovazzi (eds), Le patrimoine culturel del’humanite ¼ The cultural heritage of mankind, Leiden and Boston: M. Nijhoff Publishers, 2008,

pp. 145–247, at pp. 123 and 129–134.


4.1.3 International Customary Law

International customary rights and obligations with regard to cultural property,

including the duty of states to repatriate cultural property that foreign troops have

plundered during times of war, have in first instance been established for times of

war by international martial law.57 Conflicts with indigenous peoples, however, do

generally not qualify as war.58 International martial law, written or customary, is

thus of little relevance to indigenous peoples’ cultural property repatriation claims.

Whether states have an international customary duty to repatriate cultural

property in times of peace is disputed.59 In addition, this debate focuses on

international law between states, with the indigenous peoples lacking international

subjectivity.60

A third arena that discusses a new theory of international customary law that

directly affects indigenous peoples’ cultural property claims arose with the enact-

ment of UNDRIP. The ILA Committee on the Rights of Indigenous Peoples,

together with several scholars, took the position that UNDRIP provisions referring

to the right to cultural identity, and the right to adequate reparation and redress for

suffered wrongs, constitute internationally binding customary law.61 The thesis is

that there exists an international customary right of indigenous peoples to enjoy,

preserve, and transmit to future generations their distinctive identity and a right to

reparation of human rights violations, inter alia, by restitutions.62 A number of

international law principles support this thesis: the principles of self-determination

57Odendahl, supra note 4, at pp. 169–170.58 See infra section ‘The Hague Conventions’.59 For an overview, see Odendahl, supra note 4, at p. 179.60 See supra Sect. 2.3.1.1.61 International Law Association (ILA), Committee of the Rights of Indigenous Peoples, ‘Interim

Report’, The Hague Conference, 2010, at pp. 43–52; Anaya, Indigenous peoples in internationallaw, supra note 36, at pp. 61–72; and James Anaya and Siegfried Wiessner, ‘The UN Declaration

on the Rights of Indigenous Peoples: Towards re-empowerment’, Jurist Legal News & Research(3 October 2007), available online at http://jurist.law.pitt.edu/forumy/2007/10/un-declaration-on-

rights-of-indigenous.php.62 Federico Lenzerini, ‘The trail of broken dreams: The status of indigenous peoples in interna-

tional law’, in Federico Lenzerini (ed.), Reparations for indigenous peoples: International andcomparative perspectives, Oxford: Oxford University Press, 2008, pp. 73–116, at pp. 84–116

[hereinafter Lenzerini, ‘The trail of broken dreams’]. See also Catherine Bell, ‘Repatriation of

cultural material to First Nations in Canada: Legal and ethical justifications’, in James A. R.

Nafziger and Ann M. Nicgorski (eds), Cultural heritage issues: The legacy of conquest, coloniza-tion, and commerce, Leiden: M. Nijhoff Publishers, 2009, pp. 81–106, at pp. 92–93.



http://jurist.law.pitt.edu/forumy/2007/10/un-declaration-on-rights-of-indigenous.php


and sovereignty of peoples,63 the prohibition of genocide,64 collective implications

of human rights standards, cultural rights,65 and land rights.66

In order to verify this theory, it is necessary to check upon two elements that are

preconditions to the existence of international customary law in the sense of Article

38(1)(b) of the Statute of the International Court of Justice. The first objective

requirement is the general practice of states. The second element is the opinio iurisin the sense of a subjective conviction of states.67 Since it would go beyond the

scope of this book to thoroughly analyse state practices and opinions, this book will

only raise some concerns with regard to international customary law on an interna-

tional obligation to repatriate cultural property to indigenous peoples.68

4.1.3.1 Intrastate Level and Cross-State Level

An international customary right to cultural property repatriation on behalf of

indigenous peoples would have to cover two distinct levels. The first one is the

intrastate level. International law deals with this level through international human

rights law when stipulating rights of individuals—or collectives—vis-a-vis their

home state.

At this intrastate level, states in certain regions of the world seem to review their

indigenous peoples’ policies in order to better respect their requests and rights. In

South and Central America, for example, many states have ratified not only the ILO

Convention 169 but also the American Convention on Human Rights. Thereby,

they became subject to the practice of the Inter-American Court of Human Rights,

63 UN Charter, Articles 1(2) and 55; CCPR, Article 1; CESR, Article 1; UNDRIP, Article 3. See

supra, section ‘The Right to Self-Determination [Article 1(1) CCPR and CESCR]’. See also

Rebecca Tsosie, ‘Native nations and museums: Developing an institutional framework for cultural

sovereignty’ (2009) Tulsa Law Review, 54, pp. 3–23 [hereinafter Tsosie, ‘Native nations and

museums’].64 Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 (adopted

on 9 December 1948, entered into force 12 January 1951), Article 2.65 CCPR, Article 27; and CESCR, Article 15(a). See supra sections ‘The Right to Culture of

Minorities (Article 27 CCPR)’ and ‘The Right to Take Part in Cultural Life [Article 15(1)

(a) CESCR]’. Furthermore, the UNESCO Conventions 2003 and 2005, see infra sections

‘UNESCO Convention 2003’ and ‘UNESCO Convention 2005’.66 Lenzerini, ‘The trail of broken dreams’, supra note 62, at p. 113.67 Graber, Handel und Kultur, supra note 23, at p. 94; and Shaw, supra note 3, at pp. 74–76.68 For critical voices, see Megan Davis, ‘The United Nations Declaration on the Rights of

Indigenous Peoples’, University of New South Wales, Research Paper No. 2008–16

(2008–2009), pp. 55–63, at p. 59, available at http://ssrn.com/abstract¼1392569; Alexandra

Xanthaki, Indigenous rights and United Nations standards, self-determination, culture and land,Cambridge: Cambridge University Press, 2007, at pp. 116–117; Stephen Allen, ‘The UN Declara-

tion on the Rights of Indigenous Peoples: Towards a global legal order on indigenous rights?’, in

Andrew Halpin and Volker Roeben (eds), Theorizing the global legal order, Oxford and Portland:Hart Publishing, 2009; Lai, ‘The protection of Maori cultural heritage’, supra note 28, at

pp. 19–23.




which has developed far-reaching collective rights on behalf of indigenous

peoples.69 The United States has translated cultural property interests of Native

Americans by enacting NAGPRA, and Canada and Australia have developed

specific museum practices.70 Worldwide, many repatriations have taken place.71

Such intrastate practice is, however, not sufficient to prove an international

acceptance of a repatriation right at the second level as well. A cultural property

dispute passes the intrastate level and reaches a cross-state level as soon as indige-

nous cultural property leaves its home state territory. The repatriation claims

become international, border-crossing claims with three parties involved: indige-

nous peoples and the two states (the host state and the possessing state). An

international customary law would thus have to regulate the relationship between

the host state and indigenous peoples, as well as the relationship between the host

state and the possessing state. This goes beyond the classical set-up of human rights

and would have to involve public international law.72 As will be shown later, state

practice is not sufficiently developed in order to cover the cross-state level as

well.73

4.1.3.2 Contradictory Legal Principles

An international customary right of indigenous peoples to repatriation without any

specification would contradict important national and international principles and

concepts of law. This includes the principle of non-retroactivity, which prohibits

the application of a new law to the past at the expense of the citizens, and the right

to property, which protects good faith possessors or owners of cultural property or

69 See infra Sect. 5.2. For summaries of the case law, see Lenzerini, ‘The trail of broken dreams’,

supra note 62, at pp. 137–141.70 For Canada, see Catherine E. Bell, ‘Restructuring the relationship: Domestic repatriation and

Canadian law reform’, in Catherine Bell and Robert K. Paterson (eds), Protection of First Nationscultural heritage: Laws, policy, and reform, Vancouver and Toronto: U.B.C. Press, 2009,

pp. 15–77. For Australia, see Ana F. Vrdoljak, International law, museums and the return ofcultural objects, Cambridge: Cambridge University Press, 2006, at pp. 221–227, 248–259 and

282–288.71 Starting in the 1930s, Jeanette Greenfield mentions around 30 major repatriations of objects and

entire collections from France, the United Kingdom, Italy, the Netherlands, Belgium, the

New York Metropolitan Museum, the Brooklyn Museum, the Peabody Museum of Harvard

University, the National Museum of New Zealand, the Australian Museum Trust and the South

African Museum, Cape Town; to: Turkey, Laos, Uganda, Burma, Algeria, Zaire, Guatemala,

Syria, Mexico, Papa New Guinea, Kinshasa, Indonesia, Panama, Iraq, Egypt, Yemen, Honduras,

Kenya and Ethiopia. Jeanette Greenfield, The return of cultural treasures, 3rd edn, Cambridge:

Cambridge University Press, 2009, at pp. 371–375.72 On the extension of human rights applicability through an institutional approach, see Graber,

‘Using human rights to tackle fragmentation’, supra note 18, at p. 113; and infra Sect. 5.2.2.2.73 See infra Sect. 4.2.1.




which bars repatriation claims after a certain period of time.74 An unspecified

international repatriation right of indigenous peoples would infringe upon both

these legal principles. That is why in European countries the opinion prevails that

only very compelling reasons for the repatriation of cultural property would prevail

over proprietary rights, and if repatriation takes place, compensation has to be

paid.75 In addition, an unspecified international customary right to repatriation on

behalf of indigenous peoples would alter basic legal principles on behalf of a

vaguely defined group of ‘indigenous peoples’ by circumventing the interests of

the state and the majority of the population. It is thus questionable whether states

indeed would accept such a retroactive intervention in their private property

concepts.

4.1.3.3 International Customary Law and Repatriation in Practice

An unspecified international customary right to cultural property repatriation on

behalf of indigenous peoples would not only create serious difficulties in practice

but would also remain of little effect. As the example of the United States shows, a

right to repatriation requires the establishment of a whole repatriation regime,

which is organised, controlled, and funded by the state or some other sufficiently

powerful institution or body.76 Only specified law or an obligation to implement a

right to repatriation, together with the active support of a potent public body, could

truly constitute and advance a right to cultural property repatriation on behalf of

indigenous peoples. James Nafziger expresses the opinion that ‘throughout the

world, it is no longer a matter of whether to repatriate human remains and signifi-

cant classes of sacred and other cultural material to indigenous cultures’.77 At the

same time, however, Nafziger confirms that the most important questions remain

unanswered: ‘What material should be repatriated? To whom or to what groups

should it be repatriated? From whom? With what qualifications? Under what

conditions? By what authority? Supported by what sanctions?’78 The existence of

74 In more detail, see infra sections ‘Non-Interference with Other Rights or Obligations’ and ‘The

Principle of Non-Retroactivity’.75 United Kingdom, Department for Culture, Media and Sport, Cultural Property Unit, Norman

Palmer and James Dowling, ‘The report of the working group on human remains’ (November

2003, updated February 2007), at p. 159, para. 395 [hereinafter Palmer and Dowling, UK Report

II]. See for a dissenting opinion, Patrick J. O’Keefe, ‘Repatriation of sacred objects’, in Lyndel

V. Prott (ed.), Witnesses to history. A compendium of documents and writings on the return ofcultural objects, Paris: United Nations Educational, Scientific and Cultural Organization, 2009,

pp. 225–238, at pp. 237–238.76 See infra Sect. 3.3.2.77 James A. R. Nafziger, ‘Cultural heritage law: The international regime’, in James A. R. Nafziger

and Tullio Scovazzi (eds), Le patrimoine culturel de l’humanite ¼ The cultural heritage ofmankind, Leiden and Boston: M. Nijhoff Publishers, 2008, pp. 145–247, at p. 213.78 Ibid.



an international customary right to cultural property repatriation on behalf of

indigenous peoples is doubtful, as long as the most basic of these questions has

not been clarified. How can an international right be applied if there is no interna-

tional agreement on who the subjects and what the objects of the right are?

4.1.4 Conclusions

For several decades, the international community explicitly and implicitly

supported state intentions to absorb indigenous cultures into the ‘civilised’

communities and ignored indigenous peoples’ requests for recognition, sover-

eignty, or self-determination. Today, however, indigenous communities not only

enjoy a new human rights status on an international level, their claims, including the

cultural property repatriation claims directed at the international community, also

receive responses in international human rights law.

Such new awareness is a neo-Enlightenment of morality and a widespread

expansion of indigenous peoples’ rights, replenished by negotiations about the

repatriation of cultural property to indigenous peoples.79 The international commu-

nity has proved to be more willing to support the repatriation of indigenous cultural

material removed in colonial or historic times than it is to endorse the return of other

cultural material.80 Scholars seem to agree on this since even the vehement oppo-

nent of ‘retentionist and protectionist’ strategies in international cultural property

law, John H. Merryman,81 states that ‘[i]t seems right that objects of ritual/religious

importance to living cultures remain with or be returned to the representatives of

those cultures’.82

More than 20 years before, the same Merryman developed the theory of cultural

nationalism and cultural internationalism. This theory says in brief that there exist

two basic main interests that influence the debate and process of international

cultural property lawmaking. The first is the interest of nation states to protect

their cultural property as part of their national cultural heritage. He calls this interest

79 Barkan, supra note 2, at p. 161.80 Catherine Bell and Robert K. Paterson, ‘International movement of First Nations cultural

heritage in Canadian law’, in Catherine Bell and Robert K. Paterson (eds), Protection of FirstNations cultural heritage: Laws, policy, and reform, Vancouver and Toronto: U.B.C. Press, 2009,pp. 78–109, at p. 102.81 John H. Merryman, ‘Cultural property internationalism’ (2005) International Journal of Cul-tural Property, 12, pp. 11–39; fiercely criticised by Lyndel V. Prott, ‘The international movement

of cultural objects’ (2005) International Journal of Cultural Property, 12, pp. 225–248. See alsothe reconciliatory view of Alexander A. Bauer, ‘New ways of thinking about cultural property: A

critical appraisal of the antiquities trade debates’ (2008) Fordham International Law Journal,31, pp. 690–724.82Merryman, ‘Cultural property internationalism’, supra note 81, at p. 13.


‘cultural nationalism’.83 The second is the perception that cultural property is of

importance to all mankind. He calls this interest ‘cultural internationalism’. Today,

in view of the international human rights developments, I believe that it is legiti-

mate to add a third basic interest that influences (or should influence) any solution

of cultural property repatriation disputes and lawmaking, which is the interest of

indigenous communities in their cultural property. I suggest calling this ‘cultural

indigenism’.

However, when looking at the legal content of such cultural indigenism for

indigenous peoples’ cultural property repatriation claims, it still remains rather

scarce. UNDRIP explicitly contains a right to repatriation for human remains and a

right to use and control for ceremonial objects. This brings a welcome clarification

and allows states, at the same time, to develop creative legal solutions. However,

UNDRIP is non-binding, and one does not find human rights treaty law that would

explicitly and directly reaffirm these provisions. The establishment of universal

international customary law on behalf of an indigenous peoples’ right to cultural

property repatriation is difficult and ultimately not very helpful in practice. The

most interesting sign that points to an application of binding universal human rights

law on indigenous peoples’ cultural heritage claims, by interpretation, can be found

in the general comment of the Committee on Economic, Social and Cultural Rights

to Article 15(1)(a) CESCR. According to the statement of the Committee in this

comment, a human right of indigenous peoples to control and access their cultural

heritage is a sub-component of the binding universal right to take part in cultural

life.

In summary, one can perceive an evolution of legal cultural property protection,

from a property framework towards a human rights framework.84 Human rights law

is providing a more and more important legal starting point from where cultural

indigenism can set out. In order to resolve cultural property disputes, however,

states still need to take further steps towards the translation and implementation of

the new standards into law.

83 John H. Merryman, ‘Two ways of thinking about cultural property’ (1986) American Journal ofInternational Law, 80, pp. 831–853; and John H. Merryman, Two ways of thinking about culturalproperty: Critical essays on cultural property, art and law, The Hague: Kluwer Law International,

2000, at pp. 66–68 and 79. For a critique on this dichotomy and Merryman’s position, that cultural

internationalism fosters preservation, integrity, and distribution of and access to cultural heritage,

while cultural nationalism contributes to the cultural impoverishment of peoples; see Lyndel

V. Prott and Patrick J. O’Keefe, Law and the cultural heritage, London and Edinburgh:

Butterworths, 1989, at pp. 34–35.84 Kimberly L. Alderman, ‘The human right to cultural property’ (2011)Michigan State UniversityCollege of Law International Law Review, 20, pp. 69–81, at p. 81.


4.2 Guiding Approaches Beyond Human Rights Law

In Chap. 3, I looked at NAGPRA as a legal approach for resolving Native American

cultural property claims. I then analysed international human rights law and its

positive impact on indigenous peoples’ cultural property repatriation claims by

creating a new cultural indigenism in cultural property law.

As we have learned, however, neither NAGPRA nor international human rights

law provides directly applicable law for international claims of indigenous peoples

for the repatriation of cultural property. NAGPRA is a purely internal law of the

United States’, and the relevant international human rights provisions are non-binding

or not enforceable in national courts. The question remains how international repatri-

ation claims can and should be appropriately resolved. How should countries deal

with their foreign indigenous cultural property collections and the repatriation claims

directed against their institutions, museums, collections, art dealers, or any other

individual resident in their territories?

This section will start by looking into international and national laws, including

public international law; national property law principles; and the legal situation in

the biggest art market states in Europe (England, France, and Switzerland). It will

then evaluate some important limits in the law that hinder bringing forth the issue.

They are the most important reasons why international and, more so, European

national laws are still far from implementing the new cultural indigenism.

The lack of appropriate state law brings into focus alternative solution

approaches beyond the law. That is why one separate section will be dedicated to

the self-regulatory activities of the cultural property community, which will be

treated under the title transnational law. The last section will establish how

procedures that go beyond ordinary court litigation such as an alternative dispute

resolution mechanism or cultural diplomacy may, to some extent, fill the lacuna.

4.2.1 International and National Law

4.2.1.1 International Cultural Property Law

In order to evaluate binding international law of relevance to indigenous peoples’

cultural property repatriation claims, a twofold approach is required. The first one

subsumes indigenous peoples’ claims under international human rights law, which

has been analysed above.85 The second approach looks at international cultural

heritage law that specifically regulates cultural property issues. That law will be at

issue in the following evaluations.

85 See supra Sect. 4.1.


http://dx.doi.org/10.1007/978-3-319-01655-9_3

The Hague Conventions

One root of the legal protection of cultural property on an international level is

martial law. In times of war, the Hague Conventions on Land Warfare of 1899 and

1907 stipulated that the taking of enemy property by means of plundering, removal,

and confiscation of art and cultural property is prohibited.86 This protection was

later extended by the Hague Convention for the Protection of Cultural Property in

the Event of Armed Conflict of 195487 and its Second Protocol for the Protection of

Cultural Property in the Event of Armed Conflict of 1999.88 Thereby, the Protocol

for the first time explicitly included the multilaterally accepted duty to repatriate

cultural property exported in violation of martial law or the Protocol, respec-

tively.89 However, military conflicts between indigenous peoples and colonial

powers qualify as intrastate conflicts rather than war in the sense of the

Conventions. Hence, indigenous peoples’ cultural property lost in colonisation

conflicts, whether violent or not, does generally not qualify as war booty.90 That

is why the Conventions are of little relevance for indigenous peoples’ cultural

property repatriation claims.

UNESCO Convention 197091

The UNESCO Convention on the Means of Prohibiting and Preventing the Illicit

Import, Export and Transfer of Ownership of Cultural Property (UNESCO Con-

vention 1970)92 was the culmination of international efforts to regulate cultural

property protection in times of peace. The Convention most importantly aims at the

creation of an international duty of Member States to effectively enforce the

domestic export controls after objects have been illicitly removed from their

86 The Hague Convention II with Respect to the Laws and Customs of War on Land: Regulations

Concerning the Laws and Customs of War on Land, 32 Stat. 1803, 2 Martens Nouveau Recueil

(2d) 949 (adopted on 29 July 1899, entered into force 4 September 1900); and The Hague Convention

IV respecting the Laws and Customs of War on Land, 36 Stat. 2277, 1 Bevans 631 (adopted on

18 October 1907, entered into force 26 January 1910), Articles 23, 28, 46, 47 and 56.87 The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict,

249 UNTS 240 (adopted on 14 May 1954, entered into force 7 August 1956).88 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the

Event of Armed Conflict, 2253 UNTS 212 (adopted on 26 March 1999, entered into force

9 March 2004).89 Ibid., Article I(3).90 Odendahl, supra note 4, at pp. 126, 170–171 and 193.91 This section draws on and updates previous work of the author. See Karolina Kuprecht and Kurt

Siehr, ‘International trade in moveable tangible cultural heritage of indigenous peoples: A

European perspective’, in Christoph B. Graber, et al. (eds), International trade in indigenouscultural heritage: Legal and policy issues, Cheltenham UK and Northampton MA: Edward Elgar,

2012, pp. 246–271 [hereinafter Kuprecht and Siehr, ‘A European perspective’].92 UNESCO Convention 1970, supra note 201.

4.2 Guiding Approaches Beyond Human Rights Law 93

territory.93 Over 120 Member States have ratified or accepted this non-self-

executing Convention to date.94 It is thanks to this Convention that a new wave

of more or less extensive national cultural property law has arisen in order to

regulate the international transfer of cultural property.

The UNESCO Convention 1970 neither mentions nor specifically addresses

indigenous peoples or indigenous cultural property. The human rights

developments in the field of indigenous peoples’ cultural property rights came too

late to have an influence on the Convention’s regulations. If an indigenous object

falls under the broad definition of cultural property in Article 1 of the Convention,95

it may at best benefit from potential national import and export restrictions implied

by the Convention.96 As any other cultural property, an illegally exported or stolen

indigenous object also enjoys a potentially enhanced chance for repatriation subject

to the necessary steps taken by the relevant Member States.97

Yet, the Convention is non-self-executing and non-retroactive.98 This results in a

double limitation with regard to indigenous peoples’ cultural property claims as

becomes obvious in Article 7(b)(ii), which reads as follows:

[A]t the request of the State Party of origin, to take appropriate steps to recover and return

any such cultural property imported after the entry into force of this Convention in bothStates concerned, provided, however, that the requesting State shall pay just compensation

to an innocent purchaser or to a person who has valid title to that property. (emphasis

added)

Hence, the legal effect and impact of the Convention fully depends on the

willingness and possibilities of Member States to translate the provisions of the

Convention into their national law. Each Member State decides whether new

cultural property laws are necessary to comply with the Convention or whether

they consider the existing law sufficient. Thereby, as the Convention does not

address indigenous peoples’ interests, states have unlimited discretion in deciding

whether or not they implement measures specifically considering indigenous

peoples’ cultural property claims and interests. The non-retroactivity furthermore

means that the Convention does not cover any cultural property that indigenous

peoples lost before 24 April 1972, the day when the Convention entered into force.

By then, however, most detrimental colonising practices vis-a-vis indigenous

93Vrdoljak, International law,museums and the return of cultural objects, supra note 70, at p. 242.94 UNESCO, ‘Convention on the Means of Prohibiting and Preventing the Illicit Import, Export

and Transfer of Ownership of Cultural Property. Paris, 14 November 1970’, available at http://

portal.unesco.org/la/convention.asp?KO¼13039&language¼E&order¼alpha.95 See supra Sect. 2.3.2.96 UNESCO Convention 1970, Articles 3, 5(a), 6 and 7.97 UNESCO Convention 1970, Articles 7(b)(ii), 13(b) and 15.98 UNESCO Convention 1970, Preamble. Patrick J. O’Keefe, Commentary on the UNESCO 1970Convention on the means of prohibiting and preventing the illicit import, export and transfer ofownership of cultural property, 2nd edn, Leicester: Institute of Art and Law, 2007, at pp. 98–146;and UNESCO, ‘UNESCO and UNIDROIT – Cooperation in the fight against illicit traffic in

cultural property’, Information note, (UNESCO Doc. CLT-2005/Conf/803/2, 16 June 2005).


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peoples that led to their great cultural losses had already taken place.99 The

Convention ultimately rather aims at preventing illicit trafficking with cultural

property than providing appropriate rules for repatriation claims, let alone specific

guidance for indigenous peoples’ repatriation claims.

UNIDROIT Convention 1995100

The UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects

(UNIDROIT Convention 1995) with more than 30 contracting Member States101

was intended to be complementary to the UNESCO Convention 1970. It stipulates

uniform rules mainly for resolving private law questions and focuses thereby on the

recovery of stolen and illegally exported cultural property. A key provision in the

Convention is Article 3(1), which determines that the possessor of a stolen cultural

object must return it. In contrast to the UNESCO Convention 1970, the UNIDROIT

Convention 1995 is self-executing and directly binds its Member States.102 That is

why private parties being situated in a Member State, including indigenous

claimants, may directly invoke the Convention and require repatriation of stolen

cultural property based on Article 3(1) of the Convention. The legal efficiency of

the UNIDROIT Convention 1995 thus goes considerably beyond that of the

UNESCO Convention 1970.

The UNIDROIT Convention 1995 also explicitly considers, to some extent,

indigenous peoples’ cultural property. The Preamble mentions tribal and indige-

nous cultural property as being of concern, and Article 3 privileges indigenous

peoples’ claims for stolen cultural property in several paragraphs by excluding the

absolute time limitation of 50 years for repatriation claims for their sacred or

communally important cultural objects.103 For these objects, only a relative dead-

line of 3 years from the time when the claimant knew the location of the cultural

object and the identity of its possessor is applicable.104

With regard to illegally exported cultural property, indigenous peoples princi-

pally remain fully dependent upon their home states’ activities, since the Conven-

tion limits the restitution claims for illegally exported cultural property to State

Parties. However, the Convention favours indigenous peoples’ cultural property in

99 See supra Sects. 2.1.1 and 2.1.2.100 This section draws on and updates previous work of the author. See Kuprecht and Siehr, ‘A

European perspective’, supra note 91.101 UNIDROIT Convention 1995, supra note 148. On 28 June 2011, Sweden ratified the

UNIDROIT Convention 1995 as the last country at the time of writing. UNIDROIT, ‘UNIDROIT

Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995)’, available at http://

www.unidroit.org/english/conventions/1995culturalproperty/main.html.102 Lyndel V. Prott, Commentary on the UNIDROIT Convention, Leicester: Institute of Art and

Law, 1997, at p. 15.103 UNIDROIT Convention 1995, Articles 3(3), 3(4) and 3(8).104 UNIDROIT Convention 1995, Articles 3(3), 3(4) and 3(8).




http://www.unidroit.org/english/conventions/1995culturalproperty/main.html

http://www.unidroit.org/english/conventions/1995culturalproperty/main.html

this section as well. It expressly acknowledges the traditional or ritual use of the

object by a tribal or indigenous community as one of the rationales on which

Member States may base their repatriation claims against other Member States.105

Finally, the Convention allows a particular restitution claim for objects exported

during the lifetime of the creating person or within 50 years following the death of

that person, if the object was made by a member or members of a tribal or

indigenous community for traditional or ritual use.106

Thus, 25 years after the UNESCO Convention 1970, the UNIDROIT Conven-

tion 1995 took up indigenous peoples’ cultural property interests to some extent. It

not only mentions them but also enhances their possible scope for legal action with

regard to stolen cultural property subject to the ratification of the Convention by

their home state and by the defendant’s state of residency.107 Indigenous peoples’

interests were introduced by the Australian delegation, supported by the Canadian

delegation and UNESCO, during the negotiations of the Convention. At the time,

not many other delegations were familiar with the indigenous issue.108 Today,

however, even countries that have not ratified the Convention at least take note of

it, like for example Switzerland, where the Swiss Federal Supreme Court referred to

the Convention in two important decisions relating to allegedly illegally exported

cultural objects.109 It is yet to be seen whether this new sensitisation will include the

Convention’s reference to indigenous peoples.

This positive evaluation does not however obscure the fact that the UNIDROIT

Convention 1995 still remains behind the international and American human rights

standards. The restitution of stolen cultural property sticks within the Convention’s

harmonised property law systems and does not surmount the key procedural hurdles

such as proof of ownership and proof that an object was stolen. Indigenous peoples

will furthermore have to rely on the discretion of their nation state for repatriation

claims of illegally exported objects. Most importantly, however, the UNIDROIT

Convention 1995, like the UNESCO Convention 1970, does not apply

retroactively. Its applicability is limited to cultural property that was excavated or

alienated after the Convention entered into force in respect of the State Party where

a repatriation claim is brought.110 To sum up, the Convention’s effect in resolving

indigenous peoples’ cultural property claims thus remains very limited.

105 UNIDROIT Convention 1995, Article 5(3)(d).106 UNIDROIT Convention 1995, Article 7(1)(b).107 On the theory that indigenous peoples should be attributed partial international subjectivity so

that they can reclaim illegally exported cultural property in place of their home state, see Kerstin

Asmuss, Anspruche indigener Volker auf Ruckfuhrung rechtswidrig ausgefuhrten Kulturgutes,Hamburg: Nomos, 2011, at pp. 182–184.108 Prott, Commentary on the UNIDROIT Convention, supra note 102, at p. 40.109Marc-Andre Renold, ‘An important Swiss decision relating to the international transfer of

cultural goods: The Swiss supreme court’s decision on the giant antique mogul gold coins’ (2006)

International Journal of Cultural Property, 13, pp. 361–369, at p. 361 [hereinafter Renold, ‘The

Swiss supreme court’s decision on the giant antique mogul gold coins’].110 UNIDROIT Convention 1995, Article 10(1).



The first time that collective human rights seemed to have truly influenced an

international convention in the field of culture was with the adoption of the

UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage

(UNESCO Convention 2003).111 Within less than 10 years, this Convention had

actually gained more than 140 Member States.112 The aim of the Convention is the

protection of intangible cultural heritage, but the broad definition of heritage

includes cultural property. According to Article 2.1, the instruments, objects,

artefacts, and cultural spaces associated with intangible heritage are covered by

the Convention as well.

The Convention is an agreement between states and falls below the human rights

benchmark instruments.113 Yet it already contains by far more elements of direct

importance to indigenous peoples’ cultural property than the UNIDROIT Conven-

tion 1995 and obviously the UNESCO Convention 1970. In the UNESCO Conven-

tion 2003, State Parties not only explicitly consider the value of intangible cultural

heritage to communities and groups (including indigenous peoples)114 and recog-

nise that such groups play an important role in the production, safeguarding,

maintenance, and re-creation of the intangible cultural heritage. They also stipulate

participation possibilities of indigenous peoples. When defining the role of State

Parties, the Convention first mentions that communities, groups, and the relevant

NGOs shall participate in identifying and defining the various elements of the

intangible cultural heritage of a country.115 Article 15 then states:

Within the framework of its safeguarding activities of the intangible cultural heritage, each

State Party shall endeavour to ensure the widest possible participation of communities,

groups and, where appropriate, individuals that create, maintain and transmit such heritage,

and to involve them actively in its management.

Next to these participation requirements, the Convention provides several

opportunities for (indigenous) communities to engage in the implementation of

the Convention, for example, by proposing intangible cultural heritage to be

protected.116 The Convention even contains a brief reference to the respect of

111 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, 2368 UNTS 1

(adopted on 17 October 2003, entered into force 20 April 2006), Article 2.1. [hereinafter UNESCO

Convention 2003].112 UNESCO, ‘Convention for the Safeguarding of the Intangible Cultural Heritage. Paris, 17 October

2003’, available at http://www.unesco.org/eri/la/convention.asp?language¼E&KO¼17116.113 Coombe and Turcotte, supra note 217.114 UNESCO Convention 2003, Article 2.1.115 UNESCO Convention 2003, Article 11(b).116 UNESCO Convention 2003, Articles 16, 17, 18 and 23. In detail, see Francesco Bandarin,

‘International trade in indigenous cultural heritage: Comments from UNESCO in light of its

international standard-setting instruments in the field of culture’, in Christoph B. Graber,

et al. (eds), International trade in indigenous cultural heritage: Legal and policy issues,Cheltenham UK and Northampton MA: Edward Elgar, 2012, pp. 306–328, at pp. 312–317.


http://www.unesco.org/eri/la/convention.asp?language=E&KO=17116



(indigenous) customs or customary laws when it requires State Parties to ensure

access to the intangible cultural heritage ‘while respecting customary practices

governing access to specific aspects of such heritage’.117 The Convention stipulates

that State Parties must draw up inventories of their intangible cultural heritage118;

that they draft and adopt policies, institutions, and scientific studies with regard to

their intangible cultural heritage119; and that they ensure the recognition, respect,

and enhancement of their intangible cultural heritage through educational

measures.120 Thereby, State Parties receive institutional and procedural backing

from an international Committee that operates a Representative List of the Intangi-

ble Cultural Heritage of Humanity and a List of Intangible Cultural Heritage in

Need of Urgent Safeguarding121 and supports national, subregional, and regional

programmes, projects, and activities for the safeguarding of their heritage.122

The UNESCO Convention 2003 is of little relevance, however, for indigenous

peoples’ cultural property repatriation claims. The safeguarding measures are

future oriented, and no regulation addresses the question of how State Parties

shall deal with alienated indigenous cultural property. Nevertheless, the Conven-

tion sends a clear signal in respecting indigenous peoples’ interests in their cultural

property by requiring their participation and respect for their customary law to some

extent.


The UNESCO Convention on the Protection and Promotion of the Diversity of

Cultural Expressions (UNESCO Convention 2005), with currently more than

120 Member States,123 is the most recent international legal instrument in the

realm of cultural property. It promotes cultural development and intercultural

dialogue and aims at the protection of states’ autonomy in governing cultural

expressions.124 The Convention can be perceived as a reaction to the effects of

economic globalisation on cultural diversity.125 The UNESCO Convention 2005

117UNESCO Convention 2003, Article 13(d)(ii).118 UNESCO Convention 2003, Article 12.119 UNESCO Convention 2003, Article 13.120 UNESCO Convention 2003, Article 14.121 UNESCO Convention 2003, Articles 16 and 17.122 UNESCO Convention 2003, Article 18.123 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural

Expressions, 2440 UNTS 311 (adopted on 20 October 2005, entered into force 18 March 2007)

[hereinafter UNESCO Convention 2005]. For the Member States, see UNESCO, ‘Convention on

the Protection and Promotion of the Diversity of Cultural Expressions. Paris, 20 October 2005’,

available at http://www.unesco.org/eri/la/convention.asp?KO¼31038&language¼E.124 Coombe and Turcotte, supra note 217.125 Christoph B. Graber, ‘Substantive rights and obligations under the UNESCO Convention on

Cultural Diversity’, in Hildegard Schneider and Peter van den Bossche (eds), Protection of


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does not directly deal with cultural property, but it subsumes cultural property

under its broad definition of cultural expressions, which is determined as being the

results of creativity of individuals, groups, and societies that have cultural

content.126

With regard to indigenous peoples, the Convention explicitly mentions them

several times. Its Preamble recognises the importance of indigenous peoples’

traditional knowledge as a source of intangible and material wealth. It also takes

into account the importance of the vitality of indigenous peoples’ cultures for

cultural diversity ‘as manifested in their freedom to create, disseminate and distrib-

ute their traditional cultural expressions and to have access thereto, so as to benefit

from them for their own development’. In the following provisions, the Convention

declares the recognition of equal dignity of and respect for all cultures, including

the cultures of indigenous peoples, as the basis for any protection and promotion of

the diversity of cultural expressions.127 From this follows the obligation of State

Parties to pay due attention to the special circumstances and needs of indigenous

groups when implementing measures.128

Beyond this vague, rather political, statement the value of the UNESCO Con-

vention 2005 for indigenous peoples’ cultural property repatriation claims lies in its

emphasis on the participation of civil society, NGOs, and the private sector in

pursuit of the Convention’s goals,129 by encouraging Member States to foster the

full participation and engagement of indigenous peoples in cultural policies and

activities to promote the diversity of cultural expressions.130 Thereby, an Interna-

tional Fund for Cultural Diversity that is open to vulnerable groups and other social

groups identified in the Convention shall provide the necessary means.131

The UNESCO Convention 2005 does not reach the concreteness of the

UNESCO Convention 2003 and also remains behind the latter’s involvement

requirements with regard to indigenous peoples. The Convention’s importance

for indigenous peoples’ cultural property rather lies in its general aim and focus

on cultural diversity. Indigenous peoples substantially form a part and contribute to

such cultural diversity, if left to do so. Consequently, all measures that protect and

support the development of indigenous peoples’ cultural identity ultimately pro-

mote cultural diversity and are directly or indirectly covered by the Convention.

Such a measure would also form an appropriate international repatriation regime.

cultural diversity from an international and European perspective, Antwerp: Intersentia, 2008,pp. 141–162, at p. 141; and Christoph B. Graber, ‘The new UNESCO Convention on Cultural

Diversity: A counterbalance to the WTO?’ (2006) Journal of International Economic Law, 9,pp. 553–574, at pp. 553–554.126 UNESCO Convention 2005, Article 4.3.127 UNESCO Convention 2005, Article 2.3.128 UNESCO Convention 2005, Article 7.1(a).129 UNESCO Convention 2005, Articles 11, 12(c), 12(d), 15 and 23.7.130 UNESCO, ‘Cultural Expressions. Operational Guidelines. Articles 7, 8, 17’ (June 2009).

Bandarin, supra note 116, at pp. 317–318.131 UNESCO Convention 2005, Article 18. Bandarin, supra note 116, at p. 318.


Hence, if the prediction is true that the values and commitments of the UNESCO

Convention 2005 are likely to influence further legal work on cultural property

protection,132 one may also expect that the Convention will positively affect legal

and non-legal activities in resolving indigenous peoples’ cultural property repatri-

ation claims.

4.2.1.2 National Law133

In terms of legal enforceability, the regulations that are most relevant for indige-

nous peoples’ cultural property repatriation claims are the national property laws.

All industrialised states have put in place private property law systems, in either

federally harmonised statutory or common law. The following sections will outline

the principles of such law that predominantly steer the legal treatment of cultural

property repatriation claims. Thereby, Roman law, in its quality as the root system

of most civil law codes, will serve as the auxiliary construction in order to bridge

the national differences.

Many countries at the same time acknowledge the special cultural value of

cultural property and amend their property law either through particular cultural

property provisions or by separate cultural property codes. In a brief overview, the

corrective function of such cultural property law as to the general property law

principles will also be evaluated. Finally, an analysis of the state practices and

policies of the United Kingdom, France, and Switzerland will give an impression of

how some of the most important art trading countries in Europe specifically deal

with indigenous peoples’ cultural property repatriation claims.

National Cultural Property Law in General

Basic Private Property law Principles

Property law or the law in res (the material things) is rooted in classical Roman law.

It was Roman law that separated dominium, proprietas, or ownership from the legal

protection of possession and developed it into an a priori unrestricted individual

right, indefinite in time, providing absolute power over things.134 The new legal

132 Coombe and Turcotte, supra note 217.133 This section draws on and updates previous work of the author. See Kuprecht and Siehr, ‘A

European perspective’, supra note 91.134Max Kaser and Rolf Knutel, Romisches Privatrecht: Ein Studienbuch, 19th edn, Munich:

C.H. Beck, 2008, at pp. 119 and 124; and Reinold C. Noyes, The institution of property: A studyof the development, substance and arrangement of the system of property in modern Anglo-American law, New York and Toronto: Longmans and Green and Co., 1936, at pp. 78–79; and

George Mousourakis, Fundamentals of Roman Private Law, Heidelberg, et al.: Springer, 2012,at p. 126.


understanding was manifested as the legal emancipation from the purely factual

possession135 and was thus a courageous looking beyond the factual control of a

thing into the means by which a thing was acquired.136 Good title replaced

possession as the defining element of the relationship between persons and things.

The act of acquisition became the central element of property law. The acknowl-

edged acts of acquisition under Roman law were (1) original appropriation, of

which occupatio was the oldest form, and (2) derivative acquisition or transfer from

another person (the auctor). The second category required, in addition to the act of

acquisition, the previous right of the auctor; sinde nemo plus iuris ad aliumtransferre potest quam ipse habet (nobody can transfer more than he has

himself).137

On the basis of these principles, a claimant could file the rei vindicatio, thehighly formalised Roman claim of the non-possessing alleged owner against the

actual possessor.138 The goal of the claim was to (1) determine ownership of the

claimant and (2) to obtain the required object. Defence against such a claim could

be successful if the defendant could prove a legitimate act of acquisition with regard

to the object, either original or derivative, including proof of good title of any

predecessor.139 If the obtaining of the thing was not possible, Roman law developed

as an alternative the possibility of compensating the owner in money.140 It thereby

transformed res into financial values.

These legal ownership principles seem natural and self-evident to a western

mind. But they are not for all societies. The abstraction of legal ownership on behalf

of individuals may qualify as an important achievement or an evolution in human

societal existence. Yet, it may also be seen as a human aberration.141 To indigenous

peoples, in particular, the Roman law tradition is foreign. It is thus not surprising

that they show great difficulty in perceiving and acknowledging property in a

western sense. Their close connection to the land base and the predominance of

collectivity in their communities142 stand at odds with abstract ownership

principles.

135 Kaser and Knutel, supra note 134, at p. 120.136William Blackstone, ‘Commentaries on the laws of England in four books’ (1753), reprinted in

George Sharswood (ed.), Commentaries on the laws of England in four books, vol. 1, Philadelphia:J.B. Lippincott Company, 1893, at p. 393.137 Kaser and Knutel, supra note 134, at p. 129; and Mousourakis, supra note 134, at pp. 127–128.138Mousourakis, supra note 134, at pp. 149–150.139 Kaser and Knutel, supra note 134, at pp. 144–145.140 Ibid., at p. 145.141 A pronounced and famous statement in this sense comes from Pierre Proudhon, who wrote:

Propriete, c’est le vol ¼ property is equal to theft. Pierre Proudhon, ‘Qu’est-ce que la propriete?

Ou Recherche sur le principe du droit et du government’, edited and translated by Donald

R. Kelley and Bonnie G. Smith, in What is property, Cambridge: Cambridge University Press,

1994 (first published 1840 in French).142 See supra Sects. 2.3.3.1 and 2.3.3.4.




The Claim for Property Restitution

In every modern property law system, one may find some kind of rei vindicatioclaim from the non-possessing alleged owner against the possessor, either in

property law143 or in the law of torts.144 They provide in the first instance a legal

possibility to reclaim cultural property if the claimant can prove his or her owner-

ship of the objects. However, in indigenous peoples’ cultural property repatriation

cases, such proof of ownership is often challenging or impossible, since modern

property laws acknowledge that the transfer of an object may at the same time

convey ownership subject to (1) a valid transfer contract, for example France,

United Kingdom, and Italy; (2) a valid transfer contract and the change of posses-

sion of the object, for example Switzerland; or (3) consent of the parties on the

transfer and change of possession of the object, for example Germany and

Greece.145

In the case that the object was stolen or otherwise lost against the will of the

original owner, some property law systems require, in addition to the valid transfer

of ownership, that the purchaser was bona fide when acquiring the object, for

example in Italy.146 Other systems apply the old Roman law principle nemo plusiuris transferre potest quam ipse habet (nobody can transfer more than he has

himself) and deny in the first instance the possibility to transfer ownership of a

stolen object, for example Germany and England. In these systems, however,

procedural limitations (specifically the Anglo-American systems) replace the

nemo plus iuris rule, and courts apply instruments such as estoppel, statute of

limitations, adverse possession, and principle of laches, which bars an ownership

claim after a certain time period.147 A property law compromise provides the laws

of, for example, France, Switzerland, and Spain, which protect bona fide purchasers

143 For example in France, French Civil Code (‘Code civile’), 21 March 1804, Article 2276(2);

Switzerland, Swiss Civil Code (‘Schweizerisches Zivilgesetzbuch’), 10 December 1907 (SR 210),

Article 641(2); and Italy, Italian Civil Code (‘Codice civile’), Regio Decreto 16 March 1942

(n. 262), Article 948.144 For example, conversion or replevin in the common law of England and the United States.

Sophie Vigneron, ‘Rapport national: Grande-Bretagne’, in Marie Cornu and Centre d’etudes sur la

cooperation juridique internationale Universite de Poitiers (eds), Protection de la proprieteculturelle et circulation des biens culturels: Etude de droit compare Europe/Asie, 2008,

pp. 155–322, at pp. 301–302; and Beat Schonenberger, Restitution von Kulturgut: Anspruchs-grundlagen, Restitutionshindernisse, Entwicklung, Bern: Stampfli, 2009, at pp. 66–71.145 Kurt Siehr, ‘International art trade and the law’ (1993) Recueil des cours. Collected courses ofthe Hague Academy of International Law, 243 (4), pp. 9–292, at p. 56.146 On the definition of bona fide in French, Italian, and Swiss laws and on the international level,

see Dictionnaire compare du droit du patriomoine culturel, Paris: CNRS Editions, 2012, at

pp. 286–298.147 Kurt Siehr, ‘Zivilrechtliche Fragen des Kulturguterschutzes’, in Gerte Reichelt (ed.),

Internationaler Kulturguterschutz. Wiener Symposion 18./19. Oktober 1990, Vienna: Manzsche

Verlags- und Universitatsbuchhandlung, 1992, at pp. 48–50; and Hermann J. Knott, Der Anspruchauf Herausgabe gestohlenen und illegal exportierten Kulturguts, Baden-Baden: Nomos, 1990, at

pp. 56–58.


of stolen goods after the expiration of a certain deadline and/or by a refund of the

purchase price to the bona fide purchaser, if the stolen object has to be returned.148

All systems thus try to find a balance between acknowledging the rightful claims of

owners, whose objects were illegitimately taken, and the interests in trade and the

protection of transactions. Thereby, for all systems, time is of the essence and lapse

of time is decisive.149 Benjamin Cardozo once explained this phenomenon as

follows: ‘The bundle of power and privileges to which we give the name of

ownership is not constant through the ages. The faggots must be put together and

rebound from time to time’.150

In consequence, it does not suffice under modern property law for an indigenous

party who is claiming ownership of an object to prove an unlawful taking. Even

though this might already be difficult, due to the lack of protective law at the time of

most takings,151 the claim has to additionally overcome the property law barriers of

good faith and lapse of time. At this point, even, many claims of indigenous peoples

struggle since the transactions with their cultural property often lie too far back in

time or the objects have passed through several hands with at least one bona fideacquirer in the chain.

Cultural Property Law as a Corrective

It is not only indigenous peoples who experience difficulties in accepting that

national ownership principles shall determine the rights to objects that culturally

and ethically relate to their communities. Human societies that have developed

special interests in their cultural heritage in general also ask the question as to

whether property law is the appropriate legal tool to resolve cultural property

disputes.

Roman law clearly admitted a separate treatment of cultural property by exclud-

ing cultural property from property law principles. Divine and especially sacred and

religious objects, as well as communal or public objects, were treated as res extracommercium.152 Modern civil law regimes followed this tradition. In France, for

example, the res extra commercium exemption of cultural objects directly

influenced jurisdiction. The Cour de Cassation decided in 1896 that some

148 Siehr, ‘International art trade and the law’, supra note 145, at pp. 57–60; and Astrid Muller-

Katzenburg, Internationale Standards im Kulturguterverkehr und ihre Bedeutung fur das Sach-und Kollisionsrecht, Berlin: Duncker & Humblot, 1996, at pp. 165–166.149 Andrea Rascher, Kulturgutertransfer und Globalisierung, Zurich and Baden-Baden:

Schulthess and Nomos, 2000, at pp. 24–29; and Guido Carducci, La restitution internationaledes biens culturels et des objects d’art, Paris: Librairie Generale de Droit et de Jurisprudence E.J.A., 1997.150 Cited by Peter Afrasiabi, ‘Property rights in ancient human skeletal remains’ (1997) SouthernCalifornia Law Review, 70, pp. 805–840, at p. 826.151 See supra Sect. 2.1.2.152 Kaser and Knutel, supra note 134, at pp. 104–105; and Mousourakis, supra note 134, at

pp. 120–121.



miniatures stolen from a public municipal library were public property and not

subject to the rules of private commerce.153 Italy explicitly defined a public domain

for res extra commercium in its Civil Code. This includes culturally valuable

objects such as immoveables of special importance and museum collections.154

Res extra commercium exemptions free cultural objects from private property

principles but create at the same time a legal vacuum. Most countries replenished

this lack of law with ex lege ownership rules on behalf of the state (which possibly

complements existing clerical rules for sacred objects).155 Such state ownership

clauses are made effective by provisions of inalienability and timeless exemption

from prescription or bona fide acquisition.156 In response to a growing interest of

states to implement and standardise state ownership law for cultural property,

UNESCO and UNIDROIT since 2011 have provided model provisions on state

ownership of undiscovered objects.157 In order to protect cultural property and

archaeological sites, many countries have, in addition to res extra commerciumregimes, enacted laws that stipulate export restrictions for cultural property. Or they

declare the trading with tainted cultural property a criminal offence.158 UNESCO’s

database on cultural heritage law contains hundreds of national laws in the category

of moveable cultural property regulations.159 They all seek to protect cultural

property from being lost into private property, from being transported out of the

country, and from being illicitly traded.

The cultural property laws of those countries with indigenous peoples equally

protect indigenous peoples’ cultural property if the objects qualify as cultural

property in the sense of the laws.160 However, several factors nevertheless render

153 Jean Bonnin v Villes de Macon et de Lyon, (17 June 1896) (Cour de cassation). See Siehr,

‘International art trade and the law’, supra note 145, at p. 64.154 Italian Civil Code, Article 822(2).155Marc Weber, Unverausserliches Kulturgut im nationalen und internationalen Rechtsverkehr,Berlin: de Gruyter, 2002, at pp. 198–214; and Amalie Weidner, Kulturguter als res extracommercium im internationalen Sachenrecht, Berlin: W. de Gruyter, 2001, at pp. 21–24.156Weidner, supra note 155, at pp. 95–96.157 UNESCO and UNIDROIT, Expert Committee on State Ownership of Cultural Heritage,

‘Model provisions on state ownership of undiscovered cultural objects: Explanatory report with

model provisions and explanatory guidelines’, available at http://www.unesco.org/new/en/culture/

themes/movable-heritage-and-museums/restitution-of-cultural-property/standards-for-ownership/

#c317252.158 See, for example, the United Kingdom, infra section ‘The United Kingdom’; Switzerland, infra

section ‘Switzerland’; and the United States, specifically NAGPRA, 18 U.S.C. § 1170, supra Sect.

3.3.3.1.159 UNESCO, ‘Database of national cultural heritage laws’, available at http://www.unesco.org/

new/en/unesco/partners-donors/the-actions/culture/database-of-national-cultural-heritage-laws/.160 For example, the United States National Historic Preservation Act, the United States

Antiquities Act and the United States Archaeological Resources Protection Act (on the last Act,

see infra note 163); the New Zealand Historic Articles Act and the Historic Places Act; the

Australian Aboriginal and Torres Strait Islander Heritage Protection Act and the Australian

Protection of Moveable Cultural Heritage Act; or the Canadian Cultural Property Export and


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most of the laws not very appropriate to truly resolve indigenous peoples’ cultural

property claims. First of all, the laws are generally greatly limited by their scope of

application. In the United States, for example, the laws that aim at the protection of

archaeological resources cover only federally owned and controlled land, which

includes not more than around 30 % of the land area.161 The rest of the land and the

embedded cultural resources therein remain unprotected.

Second, cultural property laws are generally enacted with a sense of cultural

nationalism without addressing aspects of cultural indigenism.162 The Archaeolog-

ical Resources Protection Act (ARPA)163 of the United States, for example,

bestows the responsibility for determining the control of archaeological resources

exclusively upon the Federal Government. Anyone who wishes to excavate or

remove archaeological resources needs to apply to the Federal Government for

permission.164 It needed the enactment of NAGPRA for the Native Americans to be

involved in questions relating to Native American archaeological resources.165

Another act that exemplifies the cultural nationalism in public cultural property

law is provided by the Canadian Cultural Property Export and Import Act

(CPEIA).166 Through a system of export permits, the Act pursues the goal of

keeping Canadian cultural objects of national importance within the country.

Thereby, however, CPEIA neither anticipates nor directly incorporates rights or

interests of First Nations. This became obvious when an art dealer applied for a

CPEIA export permit in order to sell an approximately 140-year-old echo mask of

Import Act (on this Act, see infra note 166). On the Acts see Patty Gerstenblith, Art, culturalheritage, and the law: Cases and materials, 2nd edn, Durham NC: Carolina Academic Press, 2008,

at pp. 760–816; James A. R. Nafziger, et al., Cultural law: International, comparative, andindigenous, Cambridge and New York: Cambridge University Press, 2010, at pp. 467–471;

Kathy Bowrey, ‘International trade in indigenous cultural heritage: An Australian perspective’,

in Christoph B. Graber, et al. (eds), International trade in indigenous cultural heritage: Legal andpolicy issues, Cheltenham UK and Northampton MA: Edward Elgar, 2012, pp. 396–438, at

pp. 425–428; and Catherine Bell, ‘Ownership and trade of aboriginal cultural heritage in Canada’,

in Christoph B. Graber, et al. (eds), International trade in indigenous cultural heritage: Legal andpolicy issues, Cheltenham UK and Northampton MA: Edward Elgar, 2012, pp. 362–395, at

pp. 386–390.161 Gerstenblith, Art, cultural heritage, and the law: Cases and materials, supra note 160, at

pp. 782–783 and 805. Nationalatlas.gov, ‘Federal lands and Indian reservations’, available at

http://nationalatlas.gov/printable/fedlands.html.162 See, for example, Marie Cornu, et al., ‘Synthese comparative’, in Marie Cornu and Centre

d’etudes sur la cooperation juridique internationale Universite de Poitiers (eds), Protection de lapropriete culturelle et circulation des biens culturels: Etude de droit compare Europe/Asie, 2008,pp. 7–74, at p. 50.163 United States Archaeological Resources Protection Act of 1979 (ARPA), 16 U.S.C.

§§ 470bb–470mm.164 ARPA, 16 U.S.C. §§ 470cc and 470ee(a). Gerstenblith, Art, cultural heritage, and the law:Cases and materials, supra note 160, at p. 783.165 NAGPRA, 25 U.S.C. § 3002. Gerstenblith, Art, cultural heritage, and the law: Cases andmaterials, supra note 160, at p. 783.166 Canada Cultural Property Export and Import Act (CPEIA), RSC 1985, c. C-51.


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the Nuxalk First Nation outside Canada. The mask had an important community

function for the Nuxalk and was, under the laws of the Nuxalk, only transferable at

a potlatch in the witness presence of the community.167 That is why the Nuxalk

intervened. Yet the Nuxalk could not prevent the mask’s export and save it for its

traditional use or rightful transfer until they were ready to buy the mask.168

A third and most important deficiency of national cultural property laws is their

limited ability to resolve international cultural property claims. Due to the territori-

ality of law, national cultural property is not automatically applicable in other

countries, whether such law considers indigenous interests or not.169 That is why

in international cases, the general property law principles constitute the predomi-

nant law that is applied on cultural property repatriation claims. The UNESCO

Convention 1970 and the UNIDROIT Convention 1995 are international attempts

to expand the constrained scope of cultural property laws but will not change the

particular situation of indigenous peoples, since they hardly address their

interests.170

The United Kingdom

The United Kingdom accepted membership to the UNESCO Convention 1970 in

2002. An important milestone in the preceding debate leading to this step was the

report on the return and illicit trade of cultural property by the Select Committee on

Culture, Media and Sport of 18 July 2000 (UK Report I).171 This Report underlined

the indigenous peoples’ interests that needed to be taken into account when talking

about cultural property trade. It stated172:

It is important to bear in mind the view that many indigenous communities have a prior

claim to their own cultural property whatever the wishes of western collectors.

The Report furthermore assessed that most repatriation claims against museums

in the United Kingdom are associated with artefacts taken during the colonial era,

by acknowledging that many of these objects were removed from their

communities under questionable circumstances. In analysing indigenous peoples’

repatriation claims, the Report revealed two common elements that are typical for

such claims. First, they often go beyond wrongful alienations (such as theft) and

need not imply recognition of the illegitimacy of past transfers of ownership.

167 Bell, ‘Ownership and trade of aboriginal cultural heritage in Canada’, supra note 160, at p. 386.168 Ibid., at pp. 386–387.169 See infra section ‘Territoriality and Public Law’; and Cornu, et al., ‘Synthese comparative’,

supra note 162, at pp. 57–58.170 See supra sections ‘UNESCO Convention 1970’ and ‘UNIDROIT Convention 1995’.171 United Kingdom, House of Commons, Select Committee on Culture, Media and Sport,

‘Cultural property: Return and illicit trade’, Seventh Report, (HC 371-I, II and III, 18 July 2000)

[hereinafter UK Report I].172 Ibid., at para. 69.


Second, the objects reclaimed have special significance to an originating commu-

nity or their successors. The Report finally considered that the growing recognition

of the concept of the cultural patrimony of indigenous peoples has influenced

Australian and North American museum policies on the return of cultural prop-

erty.173 Ultimately, however, the Report filtered human remains as the only cate-

gory of indigenous cultural property that deserved specific treatment.174

The follow-up to this was a second report that focused on human remains

(UK Report II),175 which again led to the enactment of a new section in the revised

Human Tissue Act 2004.176 This section is devoted to deaccessioning177 rights and

policies of British museums and empowers nine governing museum bodies (includ-

ing the Trustees of the British Museum) to ‘transfer from their collection any

human remains which they reasonably believe to be remains of a person who

died less than 1,000 years before the day on which this section comes into force

if it appears to them to be appropriate to do so for any reason, whether or not

relating to their other functions’.178

Apart from this legislative delegation of competences to the United Kingdom

institutions holding human remains, no other measure that would have affected

indigenous peoples’ cultural property interests followed the two UK Reports.

Practice persevered on case-by-case activities. For each special case made for the

return of an object in circumstances affecting national museums and galleries, the

UK Report I recommended parliamentary sanctions through new primary legisla-

tion.179 It is thus rather surprising that the same Report nevertheless recommended

that the United Kingdom become a member to the UNIDROIT Convention 1995,

which however has not yet happened.180

An independent initiative that aimed at the protection of cultural property and

the facilitation of repatriation claims within the countries of the Commonwealth

was the Scheme for the Protection of Cultural Heritage within the Commonwealth.

The Scheme, based on a proposal by Patrick O’Keefe and Lyndel Prott, was

adopted in Mauritius in November 1993. The government of the United Kingdom,

173 Ibid., at paras 125–126.174 Ibid., at para. 153.175 Palmer and Dowling, UK Report II, supra note 75.176 Human Tissue Act 2004. The Act replaced the Human Tissue Act 1961, the Anatomy Act 1984

and the Human Organ Transplants Act 1989.177 ‘Deaccessioning’ is the technical term for the official removal of an item from a library,

museum, or art gallery. On the term, see Norman E. Palmer, ‘Relinquishment and responsibility:

The de-accessioning of objects from museum collections in England and other common law

countries’, in Peter Mosimann and Beat Schonenberger (eds), Kunst & Recht: Referate zurgleichnamigen Veranstaltung der Juristischen Fakultat der Universitat Basel vom 17. Juni2011, Bern: Stampfli, 2011, pp. 13–76, at pp. 17–18 [hereinafter Palmer, ‘Relinquishment and

responsibility’].178 Human Tissue Act 2004, s. 47(2).179 UK Report I, supra note 171, at para. 199(xi).180 Ibid., at para. 199(vi).


however, ultimately declared that the Scheme was inconsistent with the obligations

that the country faced under the law of the European Union and would require a

bureaucratic responsibility that would discourage the British art trade.181

The most vigorous law that actually exists in the United Kingdom for protecting

cultural property, yet with no specific reference to indigenous peoples, is the

Dealing in Cultural Objects (Offences) Act 2003. This legislative endeavour

followed the recommendations of the Ministerial Advisory Panel on Illicit Trade

under the chairmanship of Norman Palmer.182 The Act aims for the prevention and

prohibition of illicit national and international trade in art and antiquities by

declaring the dealing with cultural property that was illegally removed or excavated

to be a criminal offence.183 It is immaterial whether the removal or excavation took

place in the United Kingdom or elsewhere and whether the offence was committed

under the laws of the United Kingdom or under the laws of any other country or

territory.184 The Act has thus a broad scope of application and a strong criminal

enforcement mechanism that may ultimately lead to the seizure and repatriation of

the tainted objects. The Act includes indigenous cultural property, if the objects

qualify as being of historical, architectural, or archaeological interest.185 However,

the objects must have been excavated or removed from a building or structure of

historical, architectural, or archaeological interest or from a monument.186 In

addition, the Act is not retroactive and thus not applicable to objects removed or

excavated before 2003.187 That is why this Act also ultimately remains unable to

provide appropriate solution approaches for dealing with the lion’s share of indige-

nous peoples’ cultural property repatriation claims in the United Kingdom.

France

France ratified the UNESCO Convention 1970 but did not specifically implement it

into national law. The signing of the UNIDROIT Convention 1995 was not

followed by its ratification. French cultural property law thus remains scattered

181 Vigneron, supra note 144, at p. 279.182 United Kingdom, Ministerial Advisory Panel on Illicit Trade, Report on behalf of the Depart-ment of Culture, Media and Sport, December 2000. Another report which had an important

influence on the Dealing in Cultural Objects (Offences) Act 2003 was Neil Brodie, et al., ‘Stealing

history: The illicit trade in cultural material’, Report on behalf of the ICOM UK and the MuseumsAssociation, Cambridge: The McDonald Institute for Archaeological Research, 2000.183 Dealing in Cultural Objects (Offences) Act 2003, Articles 1 and 2.184 Dealing in Cultural Objects (Offences) Act 2003, Article 2(3).185 Dealing in Cultural Objects (Offences) Act 2003, Article 2(1).186 Dealing in Cultural Objects (Offences) Act 2003, Articles 2(2)(a) and (4). According to Article 2(5)

a monument means ‘(a) any work, cave or excavation, (b) any site comprising the remains of any

building or structure or of any work, cave or excavation, (c) any site comprising, or comprising the

remains of, any vehicle, vessel, aircraft or other movable structure, or part of any such thing’.187 Dealing in Cultural Objects (Offences) Act 2003, Article 2(2).


through legal acts without specific reference to indigenous peoples’ cultural prop-

erty at first sight.

Indigenous peoples’ cultural property constitutes an issue in France in the

country’s relation to New Caledonia. By the Noumea Agreement, France fully

recognised the Kanak identity of New Caledonia people, including their customary

laws and institutions, particularly through the establishment of a Customary Sen-

ate.188 Where the Agreement relates to cultural property, it obliges the state of

France to facilitate the return of Kanak cultural material located in museums and

collections in metropolitan France or other countries.189 The future will show

whether France will stick to this obligation. Since the conclusion of the Agreement

with New Caledonia in 1998, no repatriations have been based on it so far.190

Beyond this France-internal colonisation matter, France had to officially deal

with indigenous peoples’ cultural property interests when a restitution claim that

had smouldered for more than 20 years came to the surface.191 New Zealand, acting

on behalf of the Te Papa Museum of Wellington, reclaimed mokomokai, the Maori

name for preserved tattooed Maori heads. By then, some mokomokai were stored in

the Rouen city Museum for Natural History, Ethnography and Prehistory,192 and

the city of Rouen agreed with New Zealand to repatriate them. The Prefect of the

region, however, stopped the undertaking, supported by a decision of the adminis-

trative court of Rouen and affirmed by the appellate court of Douai. The Prefect

alleged that the Rouen city Museum was a museum of France and the mokomokai

would form part of a public collection.193 According to the French Heritage Code,

such public collections would be principally inalienable,194 even more so if the

objects had been received by donation or legacy or acquired with public means.195

The city of Rouen countered with the argument that mokomokai were human

remains and as such excluded from property rights according to the French Civil

188Marie Cornu, ‘France’, in Toshiyuki Kono (ed.), The impact of uniform laws on the protectionof cultural heritage and the preservation of cultural heritage in the 21st century, Leiden and

Boston: M. Nijhoff Publishers, 2010, pp. 337–419, at pp. 345–346.189 Noumea Agreement between France and New Caledonia, 1998, section 1.3.2. reprinted in ibid.,

at p. 346.190 Ibid., at p. 347.191 Thibault de Ravel d’Esclapon, ‘Tetes Maories: proposition pour un retour en Nouvelle-

Zelande’, Le Blog Dalloz (9 July 2009), available at http://blog.dalloz.fr/2009/07/09/tetes-

maories-proposition-pour-un-retour-en-nouvellezelande/#more-6375.192 ‘Museum d’histoire naturelle, d’ethnographie et de prehistoire de la ville de Rouen’.193Prefet Seine-Maritime (2007) 5 JCP Adm. 2021 (TA Rouen); Cne Rouen v Prefet de la regionHaute-Normandie (2008) 44 JCP II 10181 (CAA Douai, plen.).194 Heritage Code (‘Code du patrimoine’), 20 February 2004, Article L451-5(1). See court

decisions, supra note 193; and Marie Cornu, et al., ‘Rapport national: France’, in Marie Cornu

and Centre d’etudes sur la cooperation juridique internationale Universite de Poitiers (eds),

Protection de la propriete culturelle et circulation des biens culturels: Etude de droit compareEurope/Asie, 2008, pp. 145–253, at pp. 174–175.195 Heritage Code, Article L451-7.


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Code.196 This argument remained unheard. The dispute went up to the national

government of France, which ultimately resolved the case by legislation. In May

2010, the parliament of France enacted a statute explicitly stating that mokomokai

preserved in the museums of France did not form part of their museum collections

anymore and may be returned to New Zealand.197

The claim thus ended in a legislative one-case resolution for mokomokai. The

government missed the opportunity to think about a more encompassing way that

indigenous peoples’ claims for their cultural property could appropriately be

resolved. Christine Albanel, then Minister of Culture in France, addressed the

issue in her speech at a symposium held in February 2008 at the Museum Quai

Branly (‘Musee du Quai Branly’). In her introduction, she declared that cultural

minority rights are of importance as they stem from communities victimised by the

expansion of European colonisation that are still today sometimes marginalised in

their countries.198 Yet her conclusion from this statement did not go beyond the

French solution approach as applied in the mokomokai case. She declared that, even

if special rights are at stake, dialogue and a case-by-case analysis are the necessary

means to respond to repatriation demands.199

In the end, the mokomokai case brought a little procedural amendment to the

Heritage Code. The new provisions, which were stipulated in the mokomokai Act,

legally require a scientific commission to issue recommendations and opinions on

how an object can be declassified from the status of a public collection.200 After an

object has been declassified in this sense, the possessing museum’s or institution’s

scope of action in proceeding with the object widens and may include the repatri-

ation of the object.201 Whether this procedural improvement will be able to

influence the restrictive application of the declassification procedure,202 and

thereby avoid single cases being ultimately resolved by the French parliament, is

questionable. Not only the mokomokai case but also the request for the human

remains of the Hottentote woman Saartije Baartman, who suffered a similar destiny

196 French Civil Code, Article 16–1, reads: ‘. . . les corps humain, ses elements et ses produit ne

peuvent faire l’objet d’un droit patrimonial’ (human remains, elements and products thereof may

not be the object of property rights).197 Act No. 2010–501 of 18 May 2010 aiming at Authorising the Restitution of Maori Heads from

France to New Zealand and on the Management of Collections (‘Loi visant a autoriser la

restitution par la France des tetes maories a la Nouvelle-Zelande et relatives a la gestion des

collections’).198 Cited by Philippe Richert, ‘Proposition de loi visant a autoriser la restitution par la France des

tetes Maories’, Report to the Commission of Cultural Affairs, Report No. 482, 2008–2009, (23 June2009), at p. 31.199 ‘Ces constats soulignent l’importance du dialogue et la necessite d’un examen au cas par cas de

chaque demande [de restitution]’. Ibid., at p. 32.200 Heritage Code, Article L115-1.201 On the declassification of objects and other possibilities to transfer public cultural property, see

Cornu, et al., ‘Rapport national: France’, supra note 194, at pp. 175–180.202 Ibid., at p. 176.


to Truganini,203 needed a national legislative act. In 2002, the French parliament

specifically enacted a law concerning the restitution of the mortal remains of this

Hottentote woman from France to South Africa.204 Purely procedural steps are

ultimately not sufficient for providing appropriate guidance in indigenous peoples’

cultural property repatriation claims, as will be outlined later in this book.205

The most recent French case in which an indigenous group tried to reclaim their

cultural property took place in April 2013. The Hopi Indians of Arizona tried to stop

the sale of 70 sacred kat’sina masks by the auction house Neret-Minet Tessier

Sarrou in Paris. The collector who handed in the masks, and whose identity was

kept anonymous by the auction house, allegedly bought the masks at sales and

auctions in the United States over a 30-year period, beginning in the 1930s.206 Prior

to the auction, the association Survival International France207 on behalf of the

Hopi applied for an injunction to suspend the sale and to sequester the masks while

awaiting judgement on the merits of the case.208 The dispersion of the masks

through the auction stood at odds with the Hopi’s intention to reclaim them, and

in this sense it constituted a pending loss to the Hopi. However, the injunction court

denied the claim on the main grounds that Survival International was not in a

position to claim ownership of the masks and that it had failed to demonstrate a

violation of applicable law. The court further declared that the American Indian

Religious Freedom Act of 11 August 1978 did not prevent the sale of ceremonial

objects outside the United States and UNDRIP did not provide legal grounds on

which the claim could be based. The court finally stated that, even if the masks did

represent incarnated spirits of Hopi ancestors, they lacked the quality of human

body parts, and the sacred quality alone did not qualify them as inalienable.209

This case shows the difficulties for indigenous peoples in trying to reclaim their

cultural property abroad. If they find out about the place and possessor of their

objects at all, they often lack specific information on the alienation and transfer of

203 On Truganini, see supra Sect. 2.1.2.1. On the Hottentote woman, see Sardiah Qureshi,

‘Displaying Sara Baartman, the “Hottentot Venus”’ (2004) History of Science, 42, pp. 233–257.204 Act No. 2002–323 of 6 March 2002 concerning the Restitution of the Mortal Remains of

Saartjie Baartman from France to South Africa (‘Loi relative a la restitution par la France de la

depouille mortelle de Saartjie Baartman a l’Afrique du Sud’).205 See infra Sect. 4.2.3.3.206 Tom Mashberg, ‘Hopis try to stop Paris sale of artifacts’, New York Times (3 April 2013),

available online at http://www.nytimes.com/2013/04/04/arts/design/hopi-tribe-wants-to-stop-

paris-auction-of-artifacts.html?pagewanted¼all&_r¼0. ‘Hopi tribe masks fetch record prices at

Paris auction’, BBC News Europe (12 April 2013), available online at http://www.bbc.co.uk/news/world-europe-22119146. Olga Grimm-Weissert, ‘Fur Indianer ein Sakrileg: Hopi-Masken trotz

Protesten in Paris versteigert’, NZZ E-Paper (20 April 2013).207 Survival International is an NGOwith a mission to help tribal peoples defend their lives, protect

their lands and determine their own futures, see Survival for tribal peoples, ‘About us’, available at

http://www.survivalinternational.org/info.208Association Survival International France v S.A.R.L. Neret-Minet Tessier Sarrou (2013)

No. RG 13/52880 BF/No. 1 (Tribunal de Grande Instance de Paris).209 Ibid.



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the objects and depend on NGO services to take action.210 On the other hand, this

case also proves how limited French law is in dealing with indigenous cultural

property claims and their ethical, human rights, and foreign public policy rationale.

France lacks any specific law that would allow dealing with customary inalienabil-

ity of cultural objects of indigenous peoples or with the circumstances of colonial

takings.

Nevertheless, if the Hopi had filed the claim and asserted ownership of the masks

themselves, as a tribe, the chances of the French court looking more carefully into

the merits of their arguments would have been substantially higher. One needs to

keep in mind that the lex rei sitae of private international law in this case refers to

the application of United States’ law in establishing legal acquisition and transfer of

title of the masks, since the collector acquired all the masks in the United States.

And the United States has an important law in place, the latest since the enactment

of NAGPRA in 1990, which prohibits trade of Native American sacred objects on

American state territory. Depending on the time and circumstances of the

acquisitions, United States’ law would have possibly prevented the collector from

becoming their legal owner, an important issue that ought to have been considered

even in the procedure for injunctive relief.

Switzerland

Switzerland signed and ratified the UNESCO Convention 1970 in 2003. In contrast

to the United Kingdom and France, it specifically implemented the Convention

through the Federal Act on the International Transfer of Cultural Property

(CPTA).211

The CPTA does not address indigenous peoples’ interests but contains an

important provision of criminal law similar to the Dealing in Cultural Objects

(Offences) Act 2003 of the United Kingdom. It stipulates that the criminal

authorities have to prosecute and punish persons who deal with stolen cultural

property or with cultural property alienated against the will of the owner,212

whether the cultural object was stolen or alienated in Switzerland or abroad.213

The criminal offence includes a wide range of dealing activities, including

210 In more detail, see infra section ‘The Claimants’.211 Federal Act on the International Transfer of Cultural Property (‘Bundesgesetz uber den

internationalen Kulturgutertransfer’), 20 June 2003 (SR 44.1) [hereinafter CPTA]. English trans-

lation in Andrea Rascher, et al. (eds), Cultural property transfer ¼ Transfert des biens culturels ¼Trasferimento dei beni culturali ¼ Kulturgutertransfer, Zurich etc.: Schulthess et al., 2005, at

pp. 336–420.212 CPTA, Article 24.213Marc-Andre Renold and Raphael Contel, ‘Rapport national: Suisse’, in Marie Cornu and

Centre d’etudes sur la cooperation juridique internationale Universite de Poitiers (eds), Protectionde la propriete culturelle et circulation des biens culturels: Etude de droit compare Europe/Asie,2008, pp. 323–428, at p. 390.


importation and exportation, and it is immaterial whether the perpetrator committed

the offence wilfully or negligently.214

The criminal prosecution of a cultural property offence can ultimately lead to the

seizure of an object215 and to the repatriation of the object to the country of

origin.216 The foreign country itself may trigger such seizure and repatriation if it

initiates the necessary criminal legal aid procedure.217 Thereby, even offences that

were committed before the enactment of the CPTA come into the remit of such

legal aid to foreign states.218 This practice in Switzerland led to the situation that a

criminal procedure is often more advantageous to repatriation than a repatriation

claim pursued in a diplomatic way or through a civil repatriation procedure.

The problem with CPTA’s criminal provision is the minimal influence that

claimants can exert over the procedure, where full responsibility lies with the

Swiss, and possibly foreign enforcement authorities. The way how such authorities

proceed with seized objects might not take into account the interests of indigenous

peoples.

The other potentially interesting instrument for indigenous peoples’ cultural

property repatriation claims under Swiss law is the international cultural property

agreements that Switzerland is required to conclude with foreign states.219 Such

agreements would open the possibility for indigenous peoples’ interests in their

cultural property to be mentioned at a bilateral level. States have started with

references to indigenous peoples’ cultural property in bilateral trade agreements,

such as the Free Trade Agreement between New Zealand and China, which

explicitly mentions the Treaty of Waitangi and a possible favourable treatment of

the Maori under the Treaty or the Free Trade Agreement between the EU and the

214 CPTA, Articles 24(1)(a) and (2). In detail, see ibid., at pp. 390–392.215 CPTA, Article 28.216 Federal Regulations on the International Transfer of Cultural Property (‘Verordnung uber den

internationalen Kulturgutertransfer’), 13 April 2005 (SR 444.11), Article 27(1) [hereinafter CPTA

Regulations].217 Some examples of such releases by Switzerland in the realm of legal aid procedures are

outlined in Andrea Rascher and Giorgio Bomio, ‘6. Kapitel: Kulturgutertransfer: § 6 Strafen

und Rechtshilfe’, in Peter Mosimann, et al. (eds), Kultur, Kunst, Recht: Schweizerisches undinternationales Recht, Basel: Helbing Lichtenhahn, 2009, pp. 367–394, at pp. 382–387.218 Ibid., at pp. 392–394; and Renold and Contel, supra note 213, at pp. 415–416.219 CPTA, Article 7. The concept in which national cultural property law refers to bilateral

(or multilateral) agreements for regulating importation and repatriation of archaeological or

ethnological material may also be found in § 2602(2) of the United States Act that implements

the UNESCO Convention 1970: The Convention on Cultural Property Implementation Act of

1983, 19 U.S.C. §§ 2601–2613. The bilateral system of Switzerland in comparison with the one in

the United States is based, however, on different legal fundaments. Marc-Andre Renold, ‘Le droit

de l’art et des biens culturels en Suisse: Questions choisies’ (2010) Zeitschrift fur SchweizerischesRecht, 129, pp. 139–219, at p. 186.


Caribbean, which explicitly addresses the respect, preservation, and maintenance of

knowledge, innovations, and practices of indigenous and local communities.220

Switzerland’s bilateral cultural property agreements, however, have so far

hardly referred to indigenous peoples’ cultural property interests. Two agreements

exist with countries with significant indigenous populations, which are Columbia

and Peru.221 In the annex to the agreement with Peru, mention is made of some

Peruvian indigenous communities that still have cities or provinces named after

them (for example, Chancay, Nazca, and Huari). The sole function of the annex,

however, is to provide a list of the cultural property protected under the agree-

ment,222 which includes, in the case of Peru, textiles, figures, masks, jewellery and

other metal objects, ceramics, minerals, transitory relics and even ceremonial

objects like catapults, as well as human remains.223 No rights or entitlements to

the objects are attributed to the Peruvian communities by the annex. Only the

Peruvian state can reclaim the listed objects under the agreement without the

obligation to thereby respect the interests of the mentioned communities.224

Peruvian indigenous cultures desiring an object that had been lost to Switzerland

would thus first have to convince the Peruvian government to file a claim. Further-

more, a Peruvian claim requires the proof that the relevant object has been illegally

imported into Switzerland after the entering into force of the Agreement,225 juris-

diction remains with Swiss courts, and Swiss law applies to any disputed case about

objects located in Switzerland.226

Hence, a step for Switzerland to improve acknowledgement of indigenous

peoples’ cultural property interests would be to start considering them in their

220 Susy Frankel, ‘Attempts to protect indigenous culture throgh free trade agreements’, in

Christoph B. Graber, et al. (eds), International trade in indigenous cultural heritage: Legal andpolicy issues, Cheltenham UK and Northampton MA: Edward Elgar, 2012, pp. 118–143, at

pp. 131–132.221 For the existing bilateral cultural property agreements between Switzerland and five other

states, see Switzerland, Federal Department of the Interior, Office of Culture, ‘Bilateral

Agreements’, available at www.bak.admin.ch/themen/kulturguetertransfer/01985/index.html?

lang¼en. Other bi-lateral agreements exist with Italy and Greece. On the agreements, see Renold,

‘Le droit de l’art et des biens culturels en Suisse: Questions choisies’, supra note 219, at p. 185.222 Benno Widmer, ‘Die Umsetzung der UNESCO-Konvention 1970 durch das Kulturguter-

transfer-gesetz in der Schweiz’, in Schweizerische UNESCO-Kommission (ed.), Die UNESCO-Konvention von 1970 und ihre Anwendung ¼ La Convention UNESCO de 1970 et sa mise enapplication: Standortbestimmung und Perspektiven ¼ Etat des lieux et perspectives, Zurich, etc.:Dike, et al., 2011, pp. 35–49, at pp. 47–48.223 Agreement between the Swiss Federal Council and the Government of the Republic of Peru

about the Collaboration in Preventing Illicit Trade in Archaeological Objects (‘Vereinbarung

zwischen dem Schweizerischen Bundesrat und der Regierung der Republik Peru uber die

Zusammenarbeit zur Verhutung des rechtswidrigen Handels mit archaologischen Gutern’)

(adopted on 28 December 2006).224 Ibid., Article III(1).225 Ibid., Article IV(1)(b).226 Ibid., Article III(2) and (3).


http://www.bak.admin.ch/themen/kulturguetertransfer/01985/index.html?lang=en



bilateral agreements. A little support in such endeavours would be provided by the

ratification of the UNIDROIT Convention 1995 as it explicitly considers the

interests of indigenous peoples at least to some extent.

In practice, and beyond the question of how the law could improve the law with

regard to indigenous peoples’ cultural property repatriation claims, Switzerland

installed one of the most interesting instruments for indigenous peoples in compar-

ison with any other European state. The CPTA created a financing instrument by

which the Federal Government of Switzerland can support projects that aim, interalia, for the protection of cultural property in Member States of the UNESCO

Convention 1970.227 Funding may be required by museums for cultural property

inventory, conservation, restoration, or protection measures. Yet, any other project

with the aim of raising sensitivity to cultural property issues may be considered as

well.228 This can include cultural property projects presented by indigenous peoples

living in the territory of a Member State of the UNESCO Convention 1970, even if

the goal is the repatriation of objects.

4.2.1.3 Limitations in the Law229

The international cultural property law and the European states show little recep-

tiveness to deviate from property law principles and to install cultural property

measures that specifically reflect indigenous peoples’ cultural property interests.

This is surely due to the lack of political pressure, contradicting interests, unwill-

ingness to provide the necessary resources, and the fear of negatively affecting

western collections and cultural property holdings in an unpopular way. But

governments would also have to overcome high institutional, structural, and legal

realities that momentarily still limit their scope of action. The following sections

will summarise the most important of the legal limitations.

227 CPTA, Article 14(1)(b). The funding amounts to a maximum of CHF 100,000 per project.

CPTA Regulations, Article 12(1).228 Tania Esposito, ‘Finanzhilfen fur den Erhalt des beweglichen kulturellen Erbes im musealen

Kontext’, in Schweizerische UNESCO-Kommission (ed.), Die UNESCO-Konvention von 1970und ihre Anwendung ¼ La Convention UNESCO de 1970 et sa mise en application: Standort-bestimmung und Perspektiven ¼ Etat des lieux et perspectives, Zurich, etc.: Dike, et al., 2011,pp. 87–93, at p. 89.229 This section draws on, updates, and amends previous work of the author. See Kuprecht and

Siehr, ‘A European perspective’, supra note 91.


Non-interference with Other Rights or Obligations

Private Property Law

An important limitation on indigenous peoples’ requests for repatriation of their

cultural property is the right to property of others. This right is not only a strong,

absolute right of private law but also the most frequently codified constitutional

right230 and an important universal human rights standard.231 All European states

have put in place private property law systems that bar at some point the reclaiming

of property either because it is lost to a bona fide purchaser or possessor or by

expiration of time.232 Thus, all indigenous cultural property transferred or traded

into Europe at some point principally faces private property rights of new

possessors and owners. A preferred treatment of indigenous peoples’ cultural

property claims would require European states to abandon their old, basic private

property principles, which is unlikely to happen.

The UNIDROIT Convention 1995 brings a certain international amendment to

private property systems for the category of stolen cultural property. However, the

improvement with regard to indigenous peoples’ cultural property claims is

limited.233

Public Cultural Property Law

Apart from private property law, public cultural property law of nation states

prevents cultural objects from being transferred and thus from being repatriated.

As we learned from France, the French Heritage Code declares public cultural

property under certain circumstances inalienable, which renders them out of reach

for repatriation.234 In England, many public museums are subject to statutes such as

the British Museum Act 1963, the National Heritage Act 1983, or the Museums and

Galleries Act 1992, which all restrict the repatriation of cultural property.235 Only

human remains and Nazi-spoliated material have become subject to special statu-

tory regimes that permit national museums to transfer material beyond general

230 This was the outcome of a compilation of the relevant provisions in national constitutions used

by the Economic and Social Council to draft the UN Universal Declaration of Human Rights

(UDHR), supra note 19. See Theo R. G. van Banning, The human right to property, Antwerpen:Intersentia, 2002, at p. 137.231 UDHR, Article 17; American Convention on Human Rights, supra note 75, Article 21; African

Charter on Human and Peoples’ Rights, supra note 75, Article 14; and European Convention on

Human Rights, supra note 75, Protocol 1, CETS No. 009 (adopted on 20 March 1952, entered into

force 18 May 1954), Article 1. See for details van Banning, supra note 230, at pp. 57–79.232 See supra section ‘National Cultural Property Law in General’.233 See supra section ‘UNIDROIT Convention 1995’.234 See supra section ‘France’. On French national treasures, see Cornu, ‘France’, supra note

188, at pp. 404–405.235 Norman E. Palmer, Museums and the holocaust: Law, principles and practice, London:Institute of Art and Law, 2000, at pp. 24–29.


deaccessioning prohibitions.236 Also, in Switzerland, not only the CPTA237 but also

several laws of the Cantons contain cultural property regulations that restrict the

alienation of cultural property.238

Such cultural property law of a Swiss canton was the trigger point when the

repatriation of two Native American leather paintings from a collection located in

the Canton of Lucerne was at stake. In 1758, Swiss missionary Philipp Anton

Segesser (1689–1762) of Lucerne sent home from Mexico two paintings depicting

fights between Pueblo Indians under Spanish military rule against other Indian

tribes and the French army. The leather paintings were kept with the family

Segesser von Brunegg until 1986, when they were sold and returned to Santa Fe,

New Mexico, where they are now exhibited in the Palace of the Governors.239 The

question was whether the paintings, after they had been in Switzerland for more

than 200 years, became Swiss cultural property. The cultural property code of the

Canton Lucerne restricts the export of such cultural property if listed in the cantonal

cultural property directory.240 The dispute ended with the decision of the govern-

ment of the Canton Lucerne in 1988, which denied a sufficiently close connection

of the leather paintings to the history of Lucerne, which would have prohibited their

exportation.241 However, the decision was not undisputed.242

Trust or Non-alienability Obligations

Many cultural property collections are based on donations, gifts, legacies, or other

forms of transferral acts. Thereby, a donor may contractually restrict the donee’s

scope of action and subject the receivers to duties of trust or non-alienability.243

This happened, for example, when the collector Gottfried Hotz transferred his

impressive collection of Native American cultural property to the North America

Native Museum in Zurich. In the sales contract, Hotz obliged the Museum not to

236 Palmer, ‘Relinquishment and responsibility’, supra note 177, at p. 40.237 CPTA, Article 3.238 For legal provisions on the inalienable cultural property and for a selection of cultural property

laws of Swiss cantons, see Renold and Contel, supra note 213, at pp. 332–333, 350–359, 361–363,

371–372 and 374–376; and Weber, Unverausserliches Kulturgut im nationalen undinternationalen Rechtsverkehr, supra note 155, at pp. 20–23.239 Jorg Sprecher, ‘Ruckkehr der Segesserschen Ledermalereien nach New Mexico’, in Peter

J. Weber, et al. (eds), Liber discipulorum et amicorum: Festschrift fur Prof. Dr. Kurt Siehr zum65. Geburtstag, Zurich: Schulthess, 2001, pp. 207–214, at pp. 207–209.240 Canton Lucerne Protection of Cultural Monuments Act (‘Gesetz uber den Schutz der

Kulturdenkmaler’), 8 March 1960, Article 12.241 Council of the Canton of Lucerne (‘Regierungsrat des Kantons Luzern’), Protocol No. 1328,

31 May 1988, Luzerner Gerichts- und Verwaltungsentscheide 1988 III No. 16.242 Sprecher, supra note 239, at pp. 210–214.243 For a legal abstract on donations in Switzerland, including the restriction possibilities, see

Renold, ‘Le droit de l’art et des biens culturels en Suisse: Questions choisies’, supra note 219, at

pp. 166–170.


split or otherwise interfere with the collection by deaccessioning.244 Trust

obligations are also at stake when a collection is turned into a charitable trust.245

Most obviously, however, the French Heritage Code stresses the trust obligations

vis-a-vis donors and testators. If a public collection receives cultural objects

through donation or legacy, the Code renders them virtually irreversibly into

inalienable collection objects.246

Territoriality of the Law

If indigenous peoples raise cultural property repatriation claims in Europe or

anywhere abroad, the most significant limit on their interests is the territoriality

of the law. Even if their home states have implemented appropriate legal steps to

resolve their claims, such laws do not automatically bind other states. In order to

overcome the territoriality of the law, countries have enacted private international

law or developed conflict of law principles. These regulations refer to the applicable

national law and thus decide in what cases courts have to apply foreign law.

However, the referral system of private international law is limited to the areas of

law that qualify as private law. If the foreign law constitutes public law, it

principally finds no application in another country at all due to the sovereignty of

states.

With regard to cultural property repatriation claims, the territoriality of the law is

a major issue in private international law, as well as in public cultural property law.

Several developments are taking place in order to improve the possibility to reclaim

cultural property.

Territoriality and Private International Law (Conflict of Law Principles)

In a dispute about moveable cultural property, the private international law of most

countries refers to the law of the state where an object is located at the time of its

acquisition in order to resolve the property questions (lex rei sitae).247 Thus, if aNative American object was acquired on French territory (for example, by transfer

or possession), French law decides whether this vested good title or ownership in

244 Sales contract between Gottfried Hotz and the former Department of Schools of the City of

Zurich, signed on 14 November 1961, on file with the author.245 Palmer, Museums and the holocaust: Law, principles and practice, supra note 235, at

pp. 35–42; and Vigneron, supra note 144, at p. 282.246 Heritage Code, Article L451-7.247 Kurt Siehr, ‘Internationaler Rechtsschutz von Kulturgutern: Schutz der bildenden Kunst in

Vergangenheit, Gegenwart und Zukunft’ (2005) Swiss Review of International and European Law,1, pp. 53–77, at p. 8; Cornu, et al., ‘Synthese comparative’, supra note 162, at p. 69; and Muller-

Chen, Markus, ‘Neuere Entwicklungen im internationalen Sachenrecht’ (2005) AktuelleJuristische Praxis (AJP), pp. 273–280, at p. 277.


the acquirer. A possible American regulation that prohibited the sale of the object

would in principle not be respected.248

In the course of endeavours to establish a better, international protection of

cultural property, the Institute of International Law249 proposed replacing this

private international law principle of lex rei sitae for works of art with the lexoriginis principle.250 According to the lex originis, the law from the state from

where the object originates decides the ownership of the object. In the example of a

Native American cultural object being sold in France, the lex originis would thus

refer to United States law to decide on the question of whether title to the Native

American object was legally transferred. This could lead to the consequence that

NAGPRA would become relevant, since NAGPRA forms part of United States law

and contains the most important provisions with regard to ownership of Native

American objects. NAGPRA, for example, vests ownership of an object ex lege tothe Native Americans if the object was excavated or discovered on federal or tribal

lands after 16 November 1990.251 Under the lex originis clause, states may become

obliged to recognise such ownership. The consequences might even go further. As

NAGPRA requires the application of the cultural affiliation prong to define ultimate

ownership of Native American property, the lex originis principle would require thedeciding court to deal with NAGPRA’s cultural affiliation referral to, inter alia,Native American oral traditions (if not qualified purely procedural). In summary, a

lex originis clause not only may be able to extend the application of a principally

state-internal law like NAGPRA internationally but may even require respect of

indigenous customs or customary law as an integral part of a domestic sui generissystem.

The first European state that introduced the lex origins principle for ‘cultural

heritage’ into its Private International Law Code of 2004 was Belgium.252 The text

in Article 90 of the Code reads as follows253:

248 Siehr, ‘Internationaler Rechtsschutz von Kulturgutern: Schutz der bildenden Kunst in

Vergangenheit, Gegenwart und Zukunft’, supra note 247, at p. 67.249 The Institute of International Law (‘Institut de Droit International’) was founded on 8 Septem-

ber 1873 at the Ghent Town Hall in Belgium. The Institute is an association of renowned

international lawyers developing international law independent of any governmental influence.

It adopts resolutions of a normative character which are brought to the attention of governmental

authorities and international organisations as well as the scientific community. See Institut de Droit

International, ‘History’, available at http://www.idi-iil.org/idiE/navig_history.html.250 Resolution of the Institute of International Law on ‘The international sale of works of art from

the angle of the protection of the cultural heritage’, Articles 2 and 3. Text reprinted at Erik Jayme,

‘Protection of cultural property and conflict of laws: The Basel Resolution of the Institute of

International Law’ (1997) International Journal of Cultural Property, 6 (2), pp. 376–378.251 NAGPRA, 25 U.S.C. § 3002.252 Belgium International Private Law Code (‘Code de droit international prive’), 16 July 2004.

Siehr, Kurt, ‘Indigenous cultural heritage in domestic and international trade and commerce: Legal

aspects’, Workshop on International Trade in Indigenous Cultural Heritage, Lucerne, 17–19January 2011 (Presentation).253 English translation by Caroline Clijmans and Paul Torremans, ‘Law of 16 July 2004 holding

the Code of Private International Law (Belgian Official Journal 27 July 2004 – in force as from


http://www.idi-iil.org/idiE/navig_history.html

If an item, which a State considers as being included in its cultural heritage, has left the

territory of that State in a way, which is considered to be illegitimate at the time of the

exportation by the law of that State, the revindication by the State is governed by the law of

that State, as it is applicable at that time, or at the choice of the latter, by the law of the State

on the territory of which the item is located at the time of revindication.

Nevertheless, if the law of the State that considers the item part of its cultural heritage

does not grant any protection to the possessor in good faith, the latter may invoke the

protection, that is attributed to him by the law of the State on the territory of which the item

is located at the time of revindication.

This Belgian lex originis requires respect for the interests of good faith acquirersand their right to adequate compensation and is thus not a blank lex originisreference. But it positively opens the spectrum of Belgian courts to decide interna-

tional cultural property cases in overcoming territoriality of the law.

Yet, the Belgian Private International Law Code remains the only private

international law code in Europe so far with such a possibility to apply foreign

cultural property law. In other countries, the private international law codes might

provide an ordre public clause that allows the application of foreign public law in

exceptional cases.254 The difference between ordre public clauses and the Belgian

provision is that the latter binds Belgian courts to apply foreign law, if requested to

do so. An ordre public clause, in contrast, leaves it at the discretion of the courts totake foreign public law into consideration by balancing the circumstances and the

consequences of the application of foreign law in every single case.255

Territoriality and Public Law

How the territoriality of public law limits international cultural property repatri-

ation claims can be illustrated by the following two cases.

In Attorney-General of New Zealand v Ortiz, New Zealand and ultimately the

Maori painfully experienced the effect of territoriality.256 The Attorney-General of

New Zealand attempted to repatriate Maori carvings on a pair of door panels from

the Swiss art collector Ortiz, who handed the carvings in for sale at a Sotheby’s

1 October 2004)’, in Petar Sarcevic, et al. (eds), Yearbook of private international law, vol. 6,Munich and Bern: Sellier European Law Publishers and Stampfli, 2004, pp. 319–376, at p. 354.254 See, for example, Federal Private International Law Act (‘Bundesgesetz uber das Internationale

Privatrecht’), 18 December 1987 (SR 291), Article 19. For a translation of this Act, see Andreas

Bucher and Pierre-Yves Tschanz (eds), Private international law and arbitration, Switzerland,basic documents, Basel and Frankfurt am Main: Helbing Lichtenhahn, 1996, at p. 4.255 In application of such discretion, the Swiss Federal Court denied the application of the ordrepublic principle when India claimed restitution of golden coins even though it principally

acknowledged the existence of an international ordre public in the field of cultural property in a

criminal context. India v Credit Agricole Indosuez (Switzerland) SA (8 April 2005) BGE 131 III

418 (Federal Supreme Court). See Renold, ‘The Swiss supreme court’s decision on the giant

antique mogul gold coins’, supra note 109, at pp. 365–366.256Attorney-General of New Zealand v Ortiz (1982) QBD 349, (1982) 2 WLR 10, (1982) 3 All ER

432 (Queens Bench Division); (1984) AC 1, (1982) 3 WLR 570, (1982) 3 All ER 454 (Court of

Appeal); (1984) AC 41, (1984) 2 WLR 809, (1983) 2 All ER 93 (House of Lords).


auction in London. He established the claim on the basis that the objects were

exported in breach of New Zealand law and that New Zealand was the owner and

entitled to possession of the object due to the Historic Articles Act of 1962.257 The

first court instance upheld New Zealand’s case, but the Court of Appeal and the

House of Lords later overturned the decision and ultimately denied repatriation.

The higher courts substantiated their findings by reasoning that the legal provisions

of the Historic Articles Act are foreign public law, which is why it is unenforceable

in England.258

The second case was in dispute under Swiss jurisdiction. Similarly to the higher

English courts, the Swiss Federal Supreme Court decided against the repatriation of

two giant gold coins originating from Nizam to India due to the territoriality of law.

The court denied the application of India’s export restriction rules that were brought

forward in support of the claim since they qualified as foreign public law.259

Yet, since the adoption of the UNESCO Convention 1970, the Anglo-American

courts above all260 have started to develop ways of overcoming the territoriality

argument.

In the United States, the courts in California, followed by the New York courts,

tackled the problem with the help of the National Stolen Property Act. In a nutshell,

the courts qualified cultural property to be ‘stolen’ in the sense of this Act if they

were transferred out of a country in violation of its export restrictions or legal

257 Historic Articles Act, Article 12 (2), as reprinted in Attorney-General of New Zealand v Ortiz(1982) 3 WLR 570, at pp. 578–579.258 On this case, see Vigneron, supra note 144, at pp. 304–305; Patrick J. O’Keefe, ‘Export and

import controls on movement of the cultural heritage: Problems at the national level’, (1983)

Syracuse Journal of International Law and Commerce, 10, pp. 352–370, at pp. 352–353 [herein-

after O’Keefe, ‘Export and import controls on movement of the cultural heritage’]; Bettina Thorn,

Internationaler Kulturguterschutz nach der UNIDROIT-Konvention, Berlin: De Gruyter Recht,

2005, at pp. 7–8; and Weidner, supra note 155, at pp. 108–109.259 India v Credit Agricole Indosuez (Switzerland) SA, supra note 255. Renold, ‘The Swiss

supreme court’s decision on the giant antique mogul gold coins’, supra note 109.260 In civil law countries, an exceptional case in overcoming territoriality of cultural property law

is the Nigerian masks case (22 June 1972) BGH II ZR 113/70, 59 BGHZ 82 (Bundesgerichtshof).

Due to its limited focus on contract law, however, its impact on jurisdiction with regard to cultural

property repatriation claims may not be overestimated. In the Nigeria Masks case, Germany’s

Federal Court of Justice had to decide about the validity of an insurance contract regarding the

transport of masks, statuettes, etc. from Nigeria. The court held the contract to be null and void on

the bases that the objects were exported in violation of Nigeria’s export regulations. It thereby

explicitly considered the UNESCO Convention 1970 and stated that ‘[t]he export of cultural

property contrary to a prohibition of the country of origin for that reason merits, in the interest of

maintaining proper standards for the international trade in cultural objects, no protection from the

civil law’. Translation by Patrick J. O’Keefe, ‘Export and import controls on movement of the

cultural heritage: Problems at the national level’, supra note 258, at p. 356. On the case, see

Renold, ‘The Swiss supreme court’s decision on the giant antique mogul gold coins’, supra note

109, at p. 368.


ownership clauses.261 This allowed the courts, in an indirect application of foreign

cultural property law, to decide in favour of international repatriation claims.

In 2007, the Court of Appeal in England also went beyond the Attorney-Generalof New Zealand v Ortiz decision and denied the territoriality argument by deciding

in favour of the restitution of cultural property that was illegitimately exported from

Iran. In Government of the Islamic Republic of Iran v The Barakat Galleries Ltd,262

Iran sought to recover antiquities from a gallery in London that trades in ancient art

and antiquities from around the world.263 Iran stated that the objects (mainly carved

jars, bowls, and cups) form part of Iran’s national heritage. The Court of Appeal, in

consequence, evaluated the Iranian Civil Code, the Iranian National Heritage

Protection Act 1930 (including the Executive Regulations), the Iranian Legal Bill

Regarding Prevention of Unauthorised Excavations and Diggings, and the Iranian

Constitution of 1979 before it determined that Iran did indeed enjoy the title and an

immediate right to possession of the antiquities under the law of Iran.264 In the view

of the Court, the fact that some of the provisions of the Iranian cultural property law

imposed penalties did not render all the other provisions penal. It also did not

consider Iran’s claim to be an attempt to enforce public law export restrictions. It

rather qualified the claim as the assertion of ownership rights and upheld Iran’s

recovery claim.265 Interestingly, the court added to its rationale an ordre publicargument by stating that ‘it would be contrary to public policy for such claims to be

shut out’.266 It thereby referred to the United Kingdom’s ratification of the

UNESCO Convention 1970, the enactment of the Dealing in Cultural Objects

(Offences) Act 2003, the incorporation of the European cultural property Directive

into English law,267 and the Commonwealth scheme for the protection of the

261United States v Hollinshead (1974) 495 F 2d 1154 (9th Cir); United States v McClain (1977)

545 F 2d 988 (5th Cir); (1979) 593 F 2d 658 (5th Cir);United States v Pre-Columbian Artifacts andthe Republic of Guatemala (1993) 845 F Supp 544 (ND Ill); United States v Schultz (2002) 178 F

Supp 2d 445 (SDNY); (2003) 333 F 3d 393 (2d Cir), (2004) 157 L Ed 2d 891. See on the cases

Siehr, ‘Zivilrechtliche Fragen des Kulturguterschutzes’, supra note 147; Adam Goldberg,

‘Reaffirming McClain: The national Stolen Property Act and the abiding trade in looted cultural

objects’ (2006) University of California Law Review, 53, pp. 1031–1071; and Marc Weber,

‘Archaologische Objekte vor US-amerikanischen Gerichten’, in Peter J. Weber, et al. (eds),

Liber discipulorum et amicorum: Festschrift fur Prof. Dr. Kurt Siehr zum 65. Geburtstag, Zurich:Schulthess, 2001, pp. 225–264, at pp. 248–256.262Government of the Islamic Republic of Iran v The Barakat Galleries Ltd (2007) EWCA Civ

1374, Case No. A2/2007/0902/QBENF, A2/2007/0902(A)/FC3 (Court of Appeal (Civil Division).263Government of the Islamic Republic of Iran v The Barakat Galleries Ltd, supra note 262, at

para. 5. On the case, see Cornu, et al., ‘Synthese comparative’, supra note 162, at p. 70; and

Vigneron, supra note 144, at p. 306.264Government of the Islamic Republic of Iran v The Barakat Galleries Ltd, supra note 262, at

para. 86.265 Ibid., at paras 111 and 131.266 Ibid., at para. 155.267 Council Directive 93/7/EEC of 15 March 1993 on the return of cultural objects unlawfully

removed from the territory of a Member State (OJ L 74/74, 27 March 1993). On the Directives, see


material cultural heritage, adopted in Mauritius in November 1993. Even though

none of these instruments directly affected the outcome of the case, the Court

considered them as an illustration of international acceptance of the desirability

of protecting national cultural heritage.268

In summary, the case law in the United States and England shows a tendency for

territoriality to become less and less of a limitation on cultural property repatriation

claims even beyond international law. The UNESCO Convention 1970 seems to

bear fruit on this point. Whether the new arguments on overcoming territoriality

will equally apply to indigenous peoples’ cultural property repatriation claims,

without the representation by the nation states, is yet to be seen.

The Principle of Non-retroactivity

Even if legislators are willing to implement measures in support of indigenous

peoples’ cultural property repatriation claims, the principle of non-retroactivity

remains a third limitation to such endeavours. In states operating under the rule

of law, retroactively working legislation at the expense of its citizens is only

justified in limited circumstances. If repatriation laws are to be passed, they must

provide equitable compensation to those cultural property possessors who, at the

time of a transaction, relied on the present situation and acted legally.

How the principle of non-retroactivity may be overcome in favour of cultural

property repatriations is shown in Swiss legislation from the period after World

War II. In 1945, Switzerland passed the Decree of the Federal Council of 10 Decem-

ber 1945 on Claims for Return of Objects Taken in Territories Occupied in Times of

War.269 According to this Decree, owners of objects (mainly cultural property)

looted during World War II had to return such objects to their former owners. If

acquired bona fide, they could sue the seller of such objects for compensation. If the

seller was also bona fide and could not get compensation from his/her seller, the

Swiss Federal Government paid reasonable compensation. Such claims had to be

decided exclusively by the Swiss Federal Supreme Court in Lausanne, which

instituted for these trials a special chamber called the ‘Raubgutkammer’ (chamber

for looted objects). Claims could be filed until 31 December 1947. Thereafter, the

Chamber was dissolved and parties were referred again to those remedies generally

available for anybody who had lost an object and rediscovered it in Switzerland.

Irini A. Stamatoudi, Cultural property law and the restitution of cultural property: A commentaryto international conventions and European Union law, Cheltenham UK and Northampton MA:

Edward Elgar, 2011, at pp. 141–157.268Government of the Islamic Republic of Iran v The Barakat Galleries Ltd, supra note 262, at

paras 155–163.269 Decree of the Federal Council of 10 December 1945 on Claims for Return of Objects Taken in

Territories Occupied in Times of War (‘Bundesratsbeschluss vom 10. Dezember 1945 betreffend

die Klagen auf Ruckgabe in kriegsbesetzten Gebieten weggenommener Vermogenswerte’), 1945,

(AS 61), at pp. 1052–1056.


Switzerland returned to the normal system of law and stopped further compensation

payments that were necessary to legitimise the retroactive obligation of owners to

return validly acquired cultural property.270

4.2.1.4 Conclusions

The analysis of binding international and national laws reveals that there exists no

tailored law for international indigenous cultural property repatriation claims.

Several international conventions have tried to facilitate the complex legal,

political, and cultural challenges of international cultural property repatriation

claims in general and increasingly introduce indigenous peoples’ distinct interests.

However, the effects of such law on the legal assessment of indigenous peoples’

cultural property repatriation claims have been minimal so far.

On a national level, the law of relevancy is highly fragmented into legal

provisions scattered throughout private property law, public cultural property law,

criminal law, and private international law. Thereby, the law ultimately creates

more limitations than it provides solutions for indigenous peoples’ cultural property

repatriation claims. Yet, the international law seems to be slowly influencing

European legislation and jurisdiction in favour of international cultural property

repatriation claims, at least by other states. In particular, one of the most important

legal limitations on international repatriation claims, set by the territoriality of the

law, seems to be clearing. This could ultimately also lead to an international

expansion of national laws in favour of indigenous peoples’ cultural property

claims such as NAGPRA.

4.2.2 Transnational Law

4.2.2.1 In General

The binding law that regulates indigenous peoples’ cultural property repatriation

claims is just the tip of a normative iceberg. A sub-, supra- and transnational

community that directly or indirectly works with indigenous peoples’ cultural

270 See, in detail, Kurt Siehr, ‘Rechtsfragen zum Handel mit geraubten Kulturgutern in den Jahren

1935–1950’, in Unabhangige Expertenkommission Schweiz – Zweiter Weltkrieg (UEK) (ed.), DieSchweiz, der Nationalsozialismus und das Recht. Band 2: Privatrecht, vol. 19, Zurich: UEKPublications, 2001, at pp. 127–205; and Benno Widmer, ‘Die Richtlinien der Washingtoner

Konferenz in Bezug auf Kunstwerke, die von den Nazis konfisziert wurden: Anwendung in der

Schweizerischen Eidgenossenschaft’ (2009) KUR: Journal fur Kunstrecht, Urheberrecht undKulturpolitik, 11 (3/4), pp. 86–91, at p. 86.


property271 has created an important self-regulatory regime of normative orders that

exists autonomously and beyond the traditional categories of law.272 The commu-

nity consists, on the one hand, of museums, cultural institutions, art dealers and

their associations and organisations, state officials and departments, international

organisations, and NGOs. On the other hand, indigenous peoples—in every form of

organisation—together with activists and mainly not-for-profit organisations that

engage in indigenous peoples’ rights form part of the community. The rules of the

community are particular and fragmented but span the globe. They are a starting

point for dealing with various conflicting interests and concerns and may provide a

common ground for beginning the difficult task of seeing what is right and what is

wrong beyond the law in one’s own and the other community members’

perspectives.273 Ethical guidelines, for example, work horizontally since the trans-

national cultural property community itself defines what they consider ethical. State

law in contrast is vertical, produced in a heterogeneous manner, and divides the

field in terms of the administrators, administrated, and state powers that sanction the

infringement of a norm.274

In the field of cultural property repatriation, many international resolutions and

recommendations of the UN275 and UNESCO276 form part of the transnational

regulatory regime at stake. Furthermore, in the context of UNDRIP, the several

studies issued in the realm of the UN gained some kind of normative effect due to

the many references and citations by practitioners and scholars.277 Professional and

scientific associations have issued statutes and codes of ethics at national and

international levels that have highly influenced national cultural property

271 See, in particular, on ‘transnational communities’ Gunther Teubner and Peter Korth, ‘Two

kinds of legal pluralism: Collision of transnational regimes in the double fragmentation of world

society’, in Margaret Young (ed.), Regime interaction in international law: Facing fragmentation,Cambridge etc.: Cambridge University Press, 2012, pp. 23–54, at pp. 33–34.272 Ibid., at p. 34.273 Daniel Shapiro, ‘Introduction: Ethical considerations and cultural property’ (1998) Interna-tional Journal of Cultural Property, 7, pp. 5–6.274 Cornu, et al., ‘Synthese comparative’, supra note 247, at p. 42. On possible sanctions in case of

violation of self-regulatory norms, see ibid., at pp. 47–48.275 See, for example, UNESCO, ‘Resolutions adopted by the United Nations General Assembly

about return and restitution of cultural property’, available at http://www.unesco.org/new/en/

culture/themes/movable-heritage-and-museums/restitution-of-cultural-property/resolutions-

adopted-by-the-united-nations-general-assembly-about-return-and-restitution-of-cultural-prop

erty/.276 See, for example, UNESCO, General Assembly, ‘Recommendation concerning the interna-

tional exchange of cultural property’, 26 November 1976; or UNESCO, General Assembly,

‘Recommen-dation for the protection of movable cultural property’, 28 November 1978.277 Such studies are, for example, the Daes Study 1993, supra note 8; the Daes Final Report 1995,

supra note 9; and the Cobo Study, UN, Commission on Human Rights, Sub-Commission on

Prevention of Discrimination and Protection of Minorities, Special Rapporteur Jose M. Cobo,

‘Study of the problem of discrimination against indigenous populations, volume V: Conclusions,

proposals and recommendation’, (UN Doc. E/CN.4/Sub.2/1986/7/Add.4, UN Sales No. E.86.

XIV.3, 1987).


http://www.unesco.org/new/en/culture/themes/movable-heritage-and-museums/restitution-of-cultural-property/resolutions-adopted-...




policies,278 together with the self-regulation of trade associations such as the

CINOA Internationale des Negociants en Oeuvres d’Art (CINOA)279 and the

International Association of Dealers in Ancient Art (IADAA).280 In 2010, the

Basel Institute on Governance even started an initiative to draft global art market

guidelines in order to reflect, harmonise, and summarise the status quo of the most

important national and international self-regulation measures.281 Further, the

Antique Tribal Art Dealers Association (ATADA) located in the United States

deals specifically with the problem of tribal art by declaring, in the ATADA goals,

that they will acknowledge the protection of legitimate, ongoing religious beliefs

and practices of cultural communities and NAGPRA and only deal in objects of

clear title.282

With regard to indigenous peoples’ cultural property repatriation claims, how-

ever, the transnational law with the most effect occurs in the world of museums.

4.2.2.2 Self-Regulation of Museums

The ICOM Code of Ethics

On an international level, the most important policy for museums is the ICOMCode

of Ethics. ICOM adopted the Code in 1986 and revised it in 2004 as the umbrella

association of a worldwide network of museum professionals. The Code establishes

the values and principles shared by the international museum community, works as

a reference tool, and sets minimum standards of professional practice and

278 For an overview, see Thomas Christ and Claudia von Selle, ‘Basel art trade guidelines:

Intermediary report of a self-regulation initiative’ Basel Institute on Governance, Working

Paper No. 12 (2012), available at http://www.baselgovernance.org/publications/working-papers/.

United States: Archaeological Institute of America, AIA Code of Ethics, 1990, amended 1997;

The Association of Art Museum Directors, AAMD Code of Ethics, 1966, amended 1971, 1973,

1974, 1991, 2001 and 2011, Standards & Practices, Guidelines and Reports such as the Report on

the Stewardship and Acquisition of Sacred Objects, 2006; the American Association of Museums,

Code of Ethics for Museums; see on the American codes of ethics Nafziger, et al., supra note

160, at pp. 417–421. Canada: Canadian Museums Association, CMA Ethical Guidelines, 1999;

Canadian Art Museum Directors Organization, Guidelines: Roles and Responsibilities of Museum

Boards of Trustees, 2004. Australia: Museums Australia Incorporation, Code of Ethics, 1999.279 CINOA Code of Ethics, resolved at the General Meeting in Florence in 1987, amended in

Stockholm on 26 June 1998 and in New York on 11 May 2005. In this short Code, the requirement

that a CINOA member shall return cultural property to the country of origin in cases of serious

suspicion that the object was illegally imported was given a key position in Article 2.280 IADAA Code of Ethics and Practice, 2007. See Stamatoudi, supra note 267, at pp. 175–177;

and Cornu, et al., ‘Synthese comparative’, supra note 162, at pp. 42–43.281 Christ and von Selle, supra note 278.282 ATADA Bylaws and Policies, 1997, amended 2007 and 2010.


http://www.baselgovernance.org/publications/working-papers/

performance for museums and their staff. When joining ICOM, the members agree

to respect the Code.283

When searching the Code for regulations on indigenous peoples’ cultural prop-

erty repatriation claims, one primarily arrives at the sixth of its eight main

principles. It provides that museums shall cooperate with the communities from

which their collections originate, as well as those they serve.284 The Code does not

explicitly address indigenous peoples. Yet, from the context and wording of the

Code it becomes clear that indigenous peoples belong to the communities that the

principle addresses.

As a first element of such cooperation, the Code mentions the sharing of

knowledge, documentation, and the collection itself, as well as the development

of partnerships.285 Immediately thereafter, as a second instrument of cooperation,

the Code most interestingly mentions the return and restitution of cultural property.

It states:

Museums should be prepared to initiate dialogues for the return of cultural property to a

country or people of origin. This should be undertaken in an impartial manner, based on

scientific, professional and humanitarian principles as well as applicable local, national and

international legislation, in preference to action at a governmental or political level.286

When a country or people of origin seeks the restitution of an object or specimen that

can be demonstrated to have been exported or otherwise transferred in violation of the

principles of international and national conventions, and shown to be part of that country’s

or people’s cultural or natural heritage, the museum concerned should, if legally free to do

so, take prompt and responsible steps to co-operate in its return.287

Thereafter, the Code requires museums under the title of cooperation to ask for

informed and mutual consent of communities if acquisitions and activities involve

them or their heritage.288 Museums should respect contemporary communities’

interests when seeking funding,289 and collections from contemporary communities

should be used with respect for human dignity and the traditions and cultures that

use such material. Museums shall thereby promote human well-being, social

development, tolerance, and respect by advocating multisocial, multicultural and

multilingual expression.290

The other relevant part for indigenous peoples’ cultural property is attributed to

‘culturally sensitive material’, namely human remains and material of sacred

significance. The Code requires that the acquisition, housing, researching and

exhibiting of such material must happen in a way that takes into account the

283 ICOM, International Council of Museums, ‘Code of Ethics’, available at http://icom.museum/

the-vision/code-of-ethics/.284 ICOM Code of Ethics, Article 6.285 ICOM Code of Ethics, Article 6.1.286 ICOM Code of Ethics, Article 6.2.287 ICOM Code of Ethics, Article 6.3.288 ICOM Code of Ethics, Article 6.5.289 ICOM Code of Ethics, Article 6.6.290 ICOM Code of Ethics, Article 6.7.


http://icom.museum/the-vision/code-of-ethics/


interests and beliefs of members of the community, ethnic, or religious groups from

which the objects originated.291 The request of communities to remove from public

display culturally sensitive material ‘must be addressed expeditiously with respect

and sensitivity’. It also and once more addresses the request for the return of such

material by requiring that museums must address such a request in the same way.292

At this point, however, it delegates the details of such dialogue and the process with

regard to return or removal to the museums by asking them to set up policies that

clearly define the process for responding to the requests.293

The ICOM Code thus contains an important element of cooperation and partici-

pation of indigenous peoples and some provisions that require respect for indige-

nous peoples’ customs (even though not using the same term but rather the

expressions ‘interests’ and ‘beliefs’). At a prominent position, the Code further-

more declares the return and restitution of objects as a central element of coopera-

tion. The problem is that practices and policies applied by museums in reality do

often not reach the Code’s standards. The British Code of Ethics for Museums, for

example, as developed by the Museums Association of the United Kingdom,

explicitly addresses communities’ interests. However, its provisions remain far

behind the cooperation elements of the ICOM Code of Ethics. Not a single

statement refers to the return or restitution of objects.294

Another difficulty with the provisions of the ICOM Code of Ethics specifically

on the return and restitution of objects is its limited scope of applicability. Despite

the mandatory quality of the Code within the organisation’s statute, museums

nevertheless first have to respect and consider the relevant state law, policies, and

interests, which in many ways conflicts with and limits purely ethical standards as

outlined above.295

291 ICOM Code of Ethics, Articles 2.5, 3.7 and 4.4.292 ICOM Code of Ethics, Article 4.3.293 ICOM Code of Ethics, Article 4.4.294 United Kingdom, Museum Association, ‘Code of Ethics for Museums’, (2001), available at

http://www.museumsassociation.org/ethics/code-of-ethics. The Code obliges members to recog-

nise that individuals or communities may have a stronger claim to certain items than the museum

(section 5.6). It requires recognition of the interests of people who made, used, owned, collected,

or gave items to the collections in general and specifically emphasises respect for the interests of

originating communities by involvement of such communities in decisions about how the museum

stores, researches, presents, or otherwise uses collections and information about them (section

7.5). It asks museums to represent ideas, personalities, events, and communities with sensitivity

and respect the humanity of all people and to develop procedures that allow people to define and

seek recognition of their own cultural identity (section 9.6).295 See supra Sect. 4.2.1.3.


http://www.museumsassociation.org/ethics/code-of-ethics

The Declaration on the Importance and Value of Universal Museums

In contrast to the progressive museum policies pursued by the ICOM Code of

Ethics, 16 leading museums from France, England, Germany, Italy, Spain, Holland,

Russia, and the United States in December 2002 signed a conservative Declaration

on the Importance and Value of Universal Museums.296 In their Declaration, these

museums emphasised the vital role they play in cultivating a better comprehension

between cultures and in promoting respect between them. At the same time,

however, the signing museums only cautiously address repatriation as an issue of

importance and stress a case-by-case solution for every claim. As a rationale, they

use cultural internationalism by stating that museums serve not just the citizens of

one nation but that they foster cultural objects for ‘the people of every nation’. The

Declaration is an important but contested297 effort that firmly holds against an

elaborated repatriation practice. With regard to indigenous peoples’ cultural prop-

erty repatriation claims, the Declaration is in any case a critical statement and may

ultimately not sustain the international human rights developments and the neces-

sary proactive strategy to appropriately resolve the claims.

Museum Policies

In countries where indigenous peoples are living in their territories, museum

policies have played and still play a key role in changing the relationship towards

indigenous peoples. In the United States, it was the pioneering policy of the United

States NMAI that preceded and facilitated the enactment of NAGPRA.298 In

Canada, a crucial impact on museum practice with regard to First Nations’ cultural

property stemmed from the recommendations of the Task Force on Museums and

First Peoples, jointly sponsored by the Assembly of First Nations and the Canadian

Museums Association.299 As a result, Canadian museums such as the Canadian

Museum of Civilization implemented repatriation policies300 or went even further

like the MOAMuseum of Anthropology at the University of British Columbia. The

296Declaration on the Importance and Value of Universal Museums. Reprinted and commented by

Peter-Klaus Schuster, ‘The Treasures of World Culture in the Public Museum’ (2004) ICOMNews, 1, at p. 4.297 See Tu Xiaoyuan and Tian Jiaxin, ‘Return of cultural relics to the nation(s) of origin:

Reflections on the transfer of museum pieces’, in ICOM International Committee for Museology

(ed.), ‘Deaccession and return of cultural heritage: A new global ethics’ (2010) ICOFOM StudySeries ISS, 39, pp. 207–215.298 See supra Sect. 3.1.2.299 Task Force on Museums and First Peoples (Canada), ‘Turning the page: Forging new

partnerships between museums and First Peoples’, Ottawa, 1991; and Nafziger, et al., supra note

160, at pp. 359–361.300 Canadian Museum of Civilization, ‘Repatriation policy’, available at http://www.civilization.

ca/about-us/corporation/about-the-corporation/repatriation-policy.



http://www.civilization.ca/about-us/corporation/about-the-corporation/repatriation-policy

http://www.civilization.ca/about-us/corporation/about-the-corporation/repatriation-policy

latter issued not only a repatriation policy but also directions for the management of

culturally sensitive material and a guide on lending to originating communities.301

In Australia, eight museums are required to manage Aborigines’ cultural property

claims through the governmental Policy on Indigenous Repatriation. The Policy

requires the museums to work directly with communities in identifying the objects

and to consult and arrange with communities to facilitate the storage or repatriation

of the human remains or objects.302 The Australian museums, in addition, maintain

their own policies.303 In New Zealand, the National Museum Te Papa Tongarewa in

Wellington developed a most important repatriation policy.304 Slowly, even Euro-

pean museums have started to more directly address indigenous peoples’ cultural

property claims. The British Museum, for example, issued in October 2006 The

British Museum Policy on Human Remains as a reaction to section 47 of the new

Human Tissue Act 2004.305 All this transnational law shows a clear tendency that

museums are more willing and prepared to share their collections with indigenous

peoples, also by repatriation if necessary.

4.2.2.3 Conclusions

The transnational cultural property community has taken self-regulatory steps in

order to appropriately resolve indigenous peoples’ cultural property repatriation

claims. Specifically in the museum context, a body of transnational law is clearly

trying to pave a way and promote a new understanding for and a changed relation

vis-a-vis indigenous peoples’ cultural property claims. The advantage of such

transnational law is its capability to work with goals and stimuli beyond the

absolutism of legal provisions. In addition, its transnational quality better fits the

enormous diversity and the inherent globalism of indigenous peoples’ cultural

property repatriation claims. If such transnational law is clear, sufficiently trans-

parent, and combined with sanctions in case of its violation, it may complement or

even substitute to a certain extent international or even national law, especially

301MOA Museum of Anthropology, ‘Collections & research’, available at http://www.moa.ubc.

ca/collections/index.php.302 Australian Government, Department of the Prime Minister and Cabinet, Office for the Arts,

‘Australian government policy on indigenous repatriation’, August 2011, at p. 10, available at

http://www.arts.gov.au/sites/default/files/indigenous/repatriation/repatriation-policy.pdf. [herein-

after Australian Government, ‘Policy on indigenous repatriation’].303 For example, Australian Museum (Sydney), The University of Sydney, ‘Policies’, available at

http://sydney.edu.au/museums/about/repat.shtml; or Museum Victoria, ‘Ancestral remains collec-

tion’, available at http://museumvictoria.com.au/collections-research/our-collections/indigenous-

cultures/ancestral-remains/.304Museum of New Zealand Te Papa Tongarewa, ‘Repatriation’, available at http://www.tepapa.

govt.nz/aboutus/repatriation/Pages/overview.aspx.305 The British Museum, ‘Human remains’, available at http://www.britishmuseum.org/about_us/

news_and_press/statements/human_remains.aspx. See supra section ‘The United Kingdom’.


http://www.moa.ubc.ca/collections/index.php


http://www.arts.gov.au/sites/default/files/indigenous/repatriation/repatriation-policy.pdf

http://sydney.edu.au/museums/about/repat.shtml

http://museumvictoria.com.au/collections-research/our-collections/indigenous-cultures/ancestral-remains/


http://www.tepapa.govt.nz/aboutus/repatriation/Pages/overview.aspx


http://www.britishmuseum.org/about_us/news_and_press/statements/human_remains.aspx


where the ratification or enactment of law is not possible.306 Due to their

transnationality, self-regulatory norms are able to overcome the high legal com-

plexity of indigenous cultural property cases that involve several jurisdictions and

regularly require the parties and possibly the administrative and judicial authorities

involved to take disproportionate efforts in resolving a dispute.

At the same time, however, the limited enforceability of transnational law leaves

any progress in resolving indigenous peoples’ cultural property repatriation claims

at the discretion of the more powerful parties. It is thus questionable whether

transnational law is indeed sufficient. Can it really close the discrepancy between

theoretically appropriate solutions and legal realities and support the shift ‘from

conquest to democracy’ and ‘from possession to equal opportunity’ with regard to

indigenous cultural property?307 Or can only international and national laws proac-

tively move museums’ endeavours by transforming indigenous peoples’ cultural

property claims from a political issue into a legal issue?

4.2.3 Procedures

In view of the hurdles, difficulties, and resistance that legislation faces in develop-

ing regulations, a procedural approach to bring forth sustainable solutions for

international cultural property claims of indigenous peoples might be more realistic

and appropriate. The characteristic of such an approach is its focus on the decision-

making process and the institutional structures rather than the outcome-based

regulations. The participation of stakeholders is a key requirement.308 The hypoth-

esis is that a procedure that is considered to be fair by the disputing parties enhances

their readiness to accept results, decisions, or judgements.

In conflicts between a western party and indigenous peoples that involve funda-

mental differences in world views, the participatory element of a procedural

approach is of special importance.309 It takes into account that participation, in

the form of everyone’s right to speak and be part of collective decision-making, is a

key element of the social structure in traditional indigenous communities and even

306 Cornu, et al., ‘Synthese comparative’, supra note 247, at p. 49.307 Joseph W. Singer, ‘Original acquisition of property: From conquests & possession to democ-

racy & equal opportunity’ Harvard Law School, Public Law & Legal Theory Working Paper

Series No. 10–28 (2010), at pp. 4–17, available at http://ssrn.com/abstract¼1587363.308 On proceduralist thinking in social theory, see Christoph B. Graber, ‘Stimulating trade and

development of indigenous cultural heritage by means of international law: Issues of legitimacy

and method’, in Christoph B. Graber, et al. (eds), International trade in indigenous culturalheritage: Legal and policy issues, Cheltenham UK and Northampton MA: Edward Elgar, 2012,

pp. 3–30, at pp. 10–12.309 Ibid.; and Christoph B. Graber, ‘Institutionalization of creativity in traditional societies and in

international trade law’, in Shubha Ghosh and Robin P. Malloy (eds), Creativity, law andentrepreneurship, Cheltenham UK and Northampton MA: Edward Elgar, 2011, pp. 234–263.




constitutes the individual rights of group members.310 A procedural approach such

as mediation, for example, can also deal with indigenous customs and customary

law311 and ethical or political challenges that evolve around indigenous peoples’

cultural property repatriation claims that find no appropriate reflection in substan-

tive law.312

The next section will explore these procedures and their strengths and

weaknesses in resolving indigenous peoples’ repatriation claims by analysing, in

the first part, the various dispute resolution mechanisms, including court litigation,

arbitration, and mediation. The second part turns towards procedural activities that

take place beyond adversarial legal dispute resolution and subsumes them under the

title ‘cultural diplomacy’. Both parts will include, on the one hand, procedures that

rely on governmental institutions and, on the other, procedures that take place more

or less independently of official structures and institutions.

4.2.3.1 Dispute Resolution

The Parties

In disputes about indigenous peoples’ cultural property, a first pertinent question

relates to the parties and their legal standing. Who exactly is claiming for repatri-

ation of indigenous objects and against whom are the claims directed? This question

often raises difficulties with the issue regarding legal acknowledgement of an

indigenous group, its representation system, and its collective rights to the objects.

Whereas courts reject the claims of parties that do not have capacity to bring an

action, in strict application of the law and even before turning to the merits of the

case, arbitration and mediation procedures have more flexibility in integrating legal

standing into the findings or agreement in medias res. This better meets the realities

of an indigenous people’s cultural property claim, where the identification of the

claiming indigenous group and their authorised representatives can be difficult for a

western defendant, and vice versa.

The Claimants

On the claimant’s side, a repatriation claim by an indigenous people usually

involves several persons and parties. Next to tribal chiefs, tribal councils, elders,

310 Duane Champagne, Notes from the center of Turtle Island, LanhamMd.: AltaMira Press, 2010,

at p. 7; and Carole Goldberg, ‘Individual rights and tribal revitalization’ (2003) Arizona State LawJournal, 35, pp. 898–938, at pp. 912–913.311 See infra Sect. 5.2.312 Luiz C. Borges and Marilia B. Botelho, ‘Le Musee et la question de la restitution: Etude de

deux cas concernant le patrimoine culturel bresilien’, in ICOM International Committee for

Museology (ed.), ‘Deaccession and return of cultural heritage: A new global ethics’ (2010)

ICOFOM Study Series ISS, 39, pp. 81–91, at p. 90.



community representatives, or members with specific training in a western sense,

who represent the groups, the claims regularly involve indigenous rights activists,

NGOs, or scientists who support or even initiate the repatriation claims on the

indigenous peoples’ behalf. Other important supporters of indigenous peoples

outside the courtroom can be journalists, writers and moviemakers. With press

articles and documentaries, they help to raise public awareness generally in favour

of indigenous peoples’ issues.313

In court proceedings, however, the question of who may bring an action is

subject to national jurisdiction and the applicable law and often constitutes a

significant hurdle for indigenous peoples’ claims. In order to be heard by a civil

law court, an indigenous group must be able to prove process capability either as a

public or private entity. In international cases, foreign courts must, in addition,

apply their private international laws in deciding on the applicable law and the

question of whether the court may refer to a possible recognition of the claiming

indigenous tribe in its home state.314 This is different within human rights systems

where the adjudicating human rights bodies may hear and decide indigenous

peoples’ cultural property repatriation claims in respect of their special human

rights status and the collective rights enacted on their behalf.

In order to ensure their standing in civil courts proceedings, and to pursue long-

running repatriation campaigns, indigenous claimants have started to organise

themselves into private law bodies. Examples of such entities are the U’mista

Cultural Society incorporated in British Columbia, which has been fighting for

the repatriation of Kwakwaka’wakw potlatch objects for several years315; the

Lakota Wounded Knee Survivors Association, which is reclaiming ghost dance

objects from the Glasgow Museums316; and the Tasmanian Aboriginal Centre,

which is pursuing the goal of freeing the spirits of Aboriginal ancestors.317 The

organisations not only facilitate interaction with the adverse party but also provide a

way to constitute standing in court.

313 A movie about the Hottentote woman from France, for example, made the repatriation of her

remains an issue of interest to the greater public; see http://www.kino-zeit.de/filme/venus-noire;

and supra section ‘France’. Other documentaries exist on the Coroma sacred textiles repatriation

effort and the Kwakwaka’wakw potlatch objects as well. Susan Lobo, ‘The fabric of life:

Repatriating the sacred Coroma textiles’, Cultural Survival Quarterly (4 March 2010), available

online at http://www.culturalsurvival.org/publications/cultural-survival-quarterly/bolivia/fabric-

life-repatriating-sacred-coroma-textiles; and Gloria Cranmer Webster, ‘Part III. Repatriation and

protection of First Nations culture in Canada: The potlatch collection repatriation’ (1995) Univer-sity of British Columbia Law Review, Special issue, pp. 137–142, at p. 139.314 Andreas Kley-StruIIer, ‘Die Staatszugehorigkeit juristischer Personen’ (1991) SchweizerischeZeitschrift fur internationales und europaisches Recht, 2, pp. 163–202, at p. 165.315 See supra section ‘The Potlatch Objects of the Kwakwaka’wakw’.316 See infra section ‘Governmental Bodies Developing Procedural Solutions’.317 Caroline Davies, ‘Aborigines demand that British Museum returns Truganini bust’,

theguardian (16 September 2009), available online at http://www.guardian.co.uk/world/2009/

sep/16/tasmania-aborigines-ancestors-repatriation?INTCMP¼SRCH.


http://www.kino-zeit.de/filme/venus-noire






Another strategy of indigenous peoples to cope with the difficulty of legal

standing is the forming of alliances with NGOs, scientific or cultural institutions.

As mentioned above, when the Hopi wanted to stop the auctioning of 70 kat’sina

masks in Paris, for example, the association Survival International France, an NGO

that helps tribal peoples defend their livelihood, protect their lands, and determine

their own futures, filed an injunction claim on behalf of the Hopi. The Hopi as a

tribe later joined the claim as a voluntary intervener. The court acknowledged the

tribe’s standing in this function but nevertheless dismissed the claim on the grounds

that Survival International could not legally represent the Hopi in claiming owner-

ship of the masks and that the Hopi tribe’s intervention came too late.318 Another

unsuccessful attempt at an alliance between an indigenous group and a western

entity was when the Onondaga Indians, an Iroquois Nation, went to court together

with the University of the State of New York in order to fight for repatriation of

wampum belts.319 However, the example of the Kainai, a Canadian First Nation

living in southern Alberta, shows that cooperation is an option that can work. In a

memorandum of understanding, it was agreed with the Glenbow Museum in

Calgary that the Museum would support them in repatriating sacred material

from other museums, which indeed happened in several cases.320 Finally, it needs

to be stated that in international repatriation cases particularly, the support of

indigenous peoples’ national governments is often the only way that repatriation

claims can be successful.321

The Defendants

On the other side of a dispute about indigenous cultural property stand, the actual

possessors of the objects: private or public museums, scientific institutions, private

collectors, their heirs, auction houses, galleries, or any other indigenous art trader.

The defendants, for their part, are regularly bound into a net of alliances and public

responsibilities. Depending on the value of an object to the local community, their

318 See supra section ‘France’; and Association Survival International France v S.A.R.L. Neret-Minet Tessier Sarrou (2013) No. RG 13/52880 BF/No. 1 (Tribunal de Grande Instance de Paris).319 See supra section ‘The Wampum Belts of the Iroquois’.320 Ann Davis, ‘Repatriation of indigenous artifacts and beyond: How the Glenbow Museum is

attempting to change colonial attitudes’, in ICOM International Committee for Museology (ed.),

‘Deaccession and return of cultural heritage: A new global ethics’ (2010) ICOFOM Study SeriesISS, 39, pp. 115–122, at p. 118.321 See infra section ‘States Representing Indigenous Interests’. The activities of the Bolivian

embassy in the United States, for example, were important for the Coroma to receive their textiles,

and the Canadian embassy in England helped to organise the first meeting with the British Museum

with regard to the repatriation claims of the Kwakwaka’wakw. Lobo, supra note 313; and Andrea

Sanborn, ‘The ceremonial mask of the Kwakwaka’wakw First Nations from the British Museum –

on long-term loan – to the U’mista Cultural Centre in Alert Bay, British Columbia, Canada’

(1 May 2008), available at http://portal.unesco.org/culture/en/ev.php-URL_ID¼37121&URL_

DO¼DO_TOPIC&URL_SECTION¼201.html.


http://portal.unesco.org/culture/en/ev.php-URL_ID=37121&URL_DO=DO_TOPIC&URL_SECTION=201.html





actions often require agreement with state authorities and the opinions of experts.

Also, the interest of the public may be stirred over the case.

In a dispute, it is of great importance to clearly locate the defendant. The

residency or seat of a defendant is regularly decisive for the place of jurisdiction

and the applicable law. Furthermore, the defendant’s legal, structural, and

organisational interdependencies influence not only the possible outcome of a

legal dispute but also the choice of procedure. The affiliation of a defendant to a

national government or international organisation widens the procedural spectrum.

Difficulties with Court Litigation

If a dispute between an indigenous group and the possessor of the indigenous

objects cannot be resolved on an amicable basis, in the west the claimant soon

arrives at the jurisdiction of ordinary state courts, whether the dispute takes place in

a local, national, or international setting.

For a traditional indigenous person, however, court jurisdiction is traditionally

not the first and most obvious point of reference. Appeasement mechanisms by

courts are basically alien to indigenous communities, and traditional indigenous

dispute resolution systems fundamentally differ from civil law procedures. Already

the idea that a state should be responsible for redressing wrongs contradicts the

deeply rooted understanding of indigenous peoples’ self-government as the follow-

ing Native American example illustrates. The complexity and costs of court liti-

gation furthermore often exceed the capacities and resources of indigenous peoples

who render court litigation beyond reach for most indigenous groups.

Traditional Indigenous Dispute Resolution vs. Court Litigation

Traditionally, Native American dispute resolution is intrinsically entwined with the

living in kinships or gentes. Each community resolved disputes within its proper

kinship, and every tribe had its own institution and mechanism.322 Courts in a

western sense only rarely existed.323 The Sioux tribes, for example, had their tribal

councils deciding upon important disputes. Those who disagreed were free to move

322Horace H. Hagan, ‘Tribal law of the American Indian’ (1917) Case and Comment: TheLawyer’s Magazine, 23, pp. 735–738, at pp. 735 and 737.323 Carey N. Vincenti, ‘The reemergence of tribal society and traditional justice systems’

(1995–1996) Judicature, 79, pp. 134–141, at p. 137. Native American courts with an old tradition

are, for example, the ‘Peacemakers Courts’ of the Iroquois or the Pueblo religious courts. Robert

D. Cooter and Wolfgang Fikentscher, ‘Indian common law: The role of custom in American

Indian tribal courts (part I of II)’ (1998) American Journal of Comparative Law, 46, pp. 287–338,at p. 299.


and begin their own gens.324 Intertribal disputes were usually resolved by negotia-

tion of the involved gens, including the offerings of expressions of regret and

valuable presents.325 Next to councils, tribal religious leaders played an important

role.326 Also chiefs, the elders, the warrior societies, the families, and the clan were

involved in the resolution of problems.327 In view of such kinship adjudication, it is

clear that the embracing of western power distinctions is difficult.

Today, most Native American tribal structures are complemented by tribal

courts in a more or less western sense. Such courts started to appear after the Native

Americans had been confined to reservations.328 Tribes including the Cherokee,

Choctaw, Chickasaw, Muscogee, and Seminole, as well as the Seneca Nation of

New York thereby followed the advice of federal officials. In an endeavour to

survive, they replaced consensus decision-making and the traditional systems of

checks and balances with westernised governments and the establishment of

courts.329 The goal was to facilitate negotiations with the colonisers and to imple-

ment the imposed governmental policies.330

Later in the nineteenth century, the federal BIA assigned Indian agents who

installed so-called Courts of Indian Offenses for tribal affairs over the traditional

tribal structures on about two-thirds of the reservations.331 The agents thereby

enjoyed wide discretionary powers and dominated the courts by their power to

appoint judges and prescribe rules.332 In 1934, however, the Indian Reorganization

Act (IRA) re-established Native American self-governance and recognised their

inherent right to create and change their own governing structures.333 In conse-

quence, most tribes again abolished the Courts of Indian Offenses.334 Yet, the

324 Carole A. Barrett, ‘Sioux’, in Harvey Markowitz (ed.), American Indians. Pueblo tribes,western – Zuni language, Pasadena and Englewood Cliffs: Salem Press, Inc., 1995,

pp. 718–723, at p. 721.325 Hagan, supra note 322, at p. 737.326 Vincenti, supra note 323, at pp. 134–135.327 Ibid., at p. 137; and Goldberg, et al., supra note 31, at p. 395.328 Cooter and Fikentscher, supra note 323, at p. 300.329 Goldberg, et al., supra note 31, at pp. 382 and 397. The authors call these types of courts

‘legislatively-created tribal courts’.330 Ibid., at p. 382.331 An exception was the Pueblos of New Mexico, ‘which retained their traditional governing

structures traceable to both native and Spanish roots’. Ibid., at p. 383.332 Ibid.; Cooter and Fikentscher, supra note 323, at p. 300; and Raymond D. Austin, Navajo courtsand Navajo common law: A tradition of tribal self-governance, Minneapolis Minn.: University of

Minnesota Press, 2009, at pp. 21–25.333 Indian Reorganization Act of 1934 (IRA), 25 U.S.C. §§ 461–479.334 For the partially ongoing existence of Courts of Indian Offenses (called ‘CFR Courts’ in

reflection of the Code of Federal Regulations that rules this court system), see Goldberg, et al.,

supra note 31, at pp. 395–397.


governmental policies had influenced tribal development, and even without coer-

cion, more and more tribes set up western-style tribal courts.335

Many Native Americans and scholars question the legitimacy, respect, and

efficacy of such tribal courts.336 This is not surprising, when considering that they

are rooted in surrender and colonisation and that they were often established upon

boilerplate IRA tribal constitutions provided by the Federal Government.337 The

reality is that the Navajo, for example, on their reservation with 100,000–200,000

Navajos living on the territory, proudly run a sophisticated tribal court system with

trained trial and appellate judges who decide thousands of cases per year.338 A

Peacemaker Court operating today under the name Navajo Peacemaking Division,

in addition, resolves litigation by invoking traditional procedures and Navajo

common law and has become a popular model of indigenous justice.339 Neverthe-

less, when in contact with Native Americans, one should still not underestimate the

possible lack of acceptance of western or westernised courts.

The Complexity and Costs of Court Litigation

In contrast to indigenous dispute resolution mechanisms, western litigation is a

legally formalised process controlled by judges who adjudicate in a relatively

anonymous setting with state power. It thereby constitutes a high entry point for

indigenous claimants. Many procedural questions need to be resolved in order to

successfully cope with the formalities of court litigation.

Indigenous peoples need to decide about the legal procedures that they want to

initiate. Based on private property law, they may file a civil law claim. If the

alienation of the cultural object constituted an offence, however, the indigenous

335 Goldberg, et al., supra note 31, at pp. 397–398. The authors call these types of courts

‘constitutional tribal courts’. See also Cooter and Fikentscher, supra note 323, at p. 302.336 See, for example, Nell J. Newton, ‘Tribal court praxis: One year in the life of twenty Indian

tribal courts’ (1997–1998) American Indian Law Review, 22, pp. 285–354, at pp. 293–294;

Goldberg, et al., supra note 31, at pp. 391 and 398; Vincenti, supra note 323; Ada P. Melton,

‘Indigenous justice systems and tribal society’ (1995–1996) Judicature, 79, pp. 126–133; Mary

J. B. Hunter, ‘Tribal court opinions: Justice and legitimacy’ (1998–1999) Kansas Journal of Law& Public Policy, 8, pp. 142–146; and Robert B. Porter, ‘Strengthening tribal sovereignty through

peacemaking: How the Anglo-American legal tradition destroys indigenous societies’

(1996–1997) Columbia Human Rights Law Review, 28, pp. 235–306; Russel L. Barsh, ‘Puttingthe tribe in tribal courts: Possible? Desirable?’ (1998–1999) Kansas Journal of Law & PublicPolicy, 8, pp. 74–96. For the situation in Canada, see Dale Dewhurst, ‘Parallel justice systems, or a

tale of two spiders’, in Catherine Bell and David J. Kahane (eds), Intercultural dispute resolutionin aboriginal contexts, Vancouver and Toronto: U.B.C. Press, 2004, pp. 213–231.337 The displacement of the then existing Indian Service with new indigenous tribal governments

was subject to constitutions and corporate charters approved by the Secretary of Interior. IRA,

Articles 16–18. Goldberg, et al., supra note 31, at pp. 31–32 and 397. On IRA constitutions, see

ibid., at pp. 383–394.338 Austin, supra note 332, at pp. 19 and 29–36.339 Ibid., at p. 39; and Robert Yazzie, ‘Navajo peacekeeping: Technology and traditional Indian

law’ (1997–1998) St. Thomas Law Review, 10, pp. 95–102.


party has also the possibility to file a criminal complaint. There might also be the

possibility of a seizure request, either based on national law or—in an international

setting—by way of legal aid in civil as well as criminal matters.340 In this context, it

is important to know that many European countries and the United States have

enacted immunity statutes that protect museum objects in transit for exhibition

purposes.341

Procedural difficulties for the indigenous claimant continue with defining juris-

diction. The claimant must evaluate the correct place and venue to bring the case.

Should the actual possessor of an object be sued in his state of domicile, as is the

general rule in Europe?342 Or was the alienation of the cultural object a harmful

event triggering alternative jurisdiction at the place where the event occurred?343

Or may a claim be filed at the place of criminal proceedings?344

Within this spectrum of possibilities, the claimant must at the same time search

for the court practice that is most favourable to repatriation claims. An indigenous

claimant, in particular, has to furthermore assess if there is a chance to successfully

file the claim with a tribal court. Tribal jurisdiction over indigenous cultural

heritage in a wide sense was the key issue in Estate of Tasunke Witko v G.HeilemanBrewing Co. et al. In this case, the estate of Tasunke Witko, a famous nineteenth

century Lakota warrior and leader well known under the name Crazy Horse, filed

suit against a brewery that produced ‘The Original Crazy Horse Malt Liquor’. The

indigenous claimant sought money damages and traditional remedies for the appro-

priation of the name Crazy Horse without the permission of the family. As a venue,

the claimant chose the Rosebud Sioux Tribal Court. The brewery successfully

contested personal as well as subject-matter jurisdiction of the tribal court and

forced the estate to file suit again in the United States District Court of South

340 Relevant international conventions on legal aid are The Hague Convention relating to Civil

Procedure of 1 March 1954, 286 UNTS 267 (adopted on 1 March 1954, entered into force 12 April

1957), and the European Convention on Mutual Assistance in Criminal Matters, 472 UNTS

185 (adopted on 20 April 1959, entered into force 12 June 1962).341Matthias Weller, ‘Immunity for artworks on loan: A review of international customary law and

municipal anti-seizure statutes in light of the Liechtenstein litigation’ (2005) Vanderbilt Journal ofTransnational Law, 38, pp. 979–1039; Renold and Contel, supra note 213, at pp. 363–370; and

Erik Jayme, ‘L’immunite des oeuvres d’art pretees: Quelques procedures et legislations recentes

en Europe’, in Marc-Andre Renold and Pierre Gabus (eds), Claims for the restitution of looted art¼ La revendication des oeuvres d’art spoliees, Zurich: Schulthess, 2004, pp. 175–182.342 Lugano Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commer-

cial Matters, 28 ILM 620 (adopted on 16 September 1988, entered into force 1 January 1992,

revised on 30 October 2007), Article 2, [hereinafter Lugano Convention]; Council Regulation

2001/44/EC of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of

Judgments in Civil and Commercial Matters/Brussels I Regulation (OJ L 12, 16 January 2001),

Article 2, [hereinafter Brussels I Regulation].343 Lugano Convention, Article 5(3); Brussels I Regulation, Article 5(3).344 Lugano Convention, Article 5(4); Brussels I Regulation, Article 5(4).


Dakota. The brewery nevertheless stopped using the Crazy Horse as a label for its

beers.345

Finally and closely intertwined with the question of jurisdiction is the problem of

enforcement. If a claimant succeeds in court with a repatriation claim, can the

judgement be enforced? Where and how?

The challenge of resolving all these procedural questions is reason enough to

prevent indigenous peoples from filing claims. This is even more true when looking

at the financial means, which an international court litigation requires. In cultural

property repatriation cases, court trials usually involve an extensive and difficult

fact-finding procedure and require a line of argument that might need to delve back

into history. The procedure thus usually lasts for several years and causes remark-

ably high attorney’s and court fees.346 Most indigenous peoples, however, belong to

the poorest people of the world.347

In summary, court litigation is no realistic option for resolving indigenous

peoples’ cultural property repatriation claims.

Alternative Dispute Resolution Mechanisms

In view of the often insurmountable hurdles to resolve indigenous peoples’ cultural

property repatriation claims by court litigation, several authors and practitioners

have suggested applying alternative dispute resolution mechanisms as better

techniques for coping with the issue.348 In the international cultural property

345Estate of Tasunke Witko v G. Heileman Brewing Co. et al. (1996) 23 Indian L Rep 6106

(Rosebud Sioux Sup Ct); Hornell Brewing Co. v Rosebud Sioux Tribal Court (1998) 133 F3d 1087(8th Cir). On the dispute, see Carole Goldberg, ‘A United States perspective on the protection of

indigenous cultural heritage’, in Christoph B. Graber, et al. (eds), International trade in indigenouscultural heritage: Legal and policy issues, Cheltenham UK and Northampton MA: Edward Elgar,

2012, pp. 331–361, at pp. 356–357.346 The American art lawyer Thomas Kline considers it barely worth litigating for an object whose

price is not at least US$3 million, cited by Hannes Hartung, ‘Kunstraub in Krieg und Verfolgung:

Die Restitution der Beute- und Raubkunst im Kollisions- und Volkerrecht’, Universitat Zurich,Dissertation (2004), at p. 407. The Federal Government of Germany and the city of Gotha had to

spend more than half a million British pounds on attorney’s fees in a procedure before the English

courts (decided in 1998). They claimed restitution of a small painting from Joachim Wtewael

plundered from the museum of Gotha during World War II. Siehr, ‘Internationaler Rechtsschutz

von Kulturgutern: Schutz der bildenden Kunst in Vergangenheit, Gegenwart und Zukunft’, supra

note 247, at p. 59.347 Anja Titze, ‘Die Vereinten Nationen und indigene Volker’ (2007) Vereinte Nationen, 5,pp. 190–197, at p. 190.348Marie Cornu and Marc-Andre Renold, ‘New developments in the restitution of cultural

property: Alternative means of dispute resolution’ (2010) International Journal of CulturalProperty, 17, pp. 1–31, at pp. 12–13; Quentin Byrne-Sutton, ‘Introduction: Alternative paths to

explore’, in Quentin Byrne-Sutton and Fabienne Geisinger-Mariethoz (eds), Resolution methodsfor art-related disputes: Proceedings of a symposium organised on 17 October 1997 by the Centredu Droit de l’Art, Zurich: Schulthess, 1999; Sarah Theurich, ‘Alternative dispute resolution in art


arena, indigenous peoples have even been acknowledged as new, important actors

with important interests that call for specific alternative dispute resolution

procedures,349 including dispute resolution by commissions and committees, arbi-

tration, and mediation.

Dispute Resolution by Commissions and Committees350

The most significant attempt to resolve indigenous peoples’ cultural property

repatriation claims by a specifically designed body can be found in the United

States. NAGPRA established the so-called Review Committee, which is composed

of seven members, of whom at least two must be traditional Indian religious

leaders.351 The members are appointed by the Secretary from nominations submit-

ted either by Indian tribes and Native Hawaiian organisations or by national

museum organisations and scientific organisations. One member is appointed

from a list of people developed and consented to by all of the members

appointed.352 Along with functions such as monitoring the NAGPRA process,353

the Committee reviews and makes findings related to the identity or cultural

affiliation of cultural items or their return upon request of any affected party.354 It

further works as a facilitator in resolving disputes among Indian tribes, Native

Hawaiian organisations, or lineal descendants and federal agencies or museums

relating to the return of cultural items.355

Similarly, the Waitangi Tribunal in New Zealand recently recommended setting

up a commission with responsibility for dealing with disputes about taonga works

of the Maori held by private persons. In contrast to the NAGPRA Review Commit-

tee, whose duties are solely advisory, the proposed commission in New Zealand

would be attributed adjudicative functions.356

In view of the consensus-based introduction of a procedure and the possibility to

specifically design a process for the particularities of indigenous peoples’

and cultural heritage: Explored in the context of the World Intellectual Property Organization’s

work’, in Kerstin Odendahl and Peter J. Weber (eds), Kulturguterschutz – Kunstrecht –Kulturrecht: Festschrift fur Kurt Siehr zum 75. Geburtstag aus dem Kreise des Doktoranden-und Habilitandenseminars “Kunst und Recht”, Baden-Baden, etc.: Nomos, et al., 2010,

pp. 569–594; and Stamatoudi, supra note 267, at pp. 193–208.349 Cornu and Renold, supra note 348, at pp. 4–7.350 This section draws on and updates previous work of the author. See Kuprecht and Siehr, ‘A

European perspective’, supra note 91.351 NAGPRA, 25 U.S.C. § 3006.352 NAGPRA, 25 U.S.C. § 3006(b).353 NAGPRA, 25 U.S.C. § 3006(c)(2).354 NAGPRA, 25 U.S.C. § 3006(c)(3).355 NAGPRA, 25 U.S.C. § 3006(c)(4).356Waitangi Tribunal, ‘Ko aotearoa tenei: A report into claims concerning New Zealand law and

policy affecting Maori culture and identity’ (2011), vol. 1, at pp. 94–97, available at http://www.

waitangitribunal.govt.nz/reports/summary.asp?reportid¼{BF981901-5B55-441C-A93E-

8E84B67B76E9} [hereinafter Wai 262 Report]; and infra Sect. 5.2.2.3.


http://www.waitangitribunal.govt.nz/reports/summary.asp?reportid=%7BBF981901-5B55-441C-A93E-8E84B67B76E9%7D





repatriation claims, a commission or committee to hear repatriation claims against

European parties would be worth considering. So far, all existing commissions or

committees in the realm of cultural property repatriations have exclusively focused

on claims of holocaust victims of World War II or their heirs.357 The commissions

in general give non-binding advice as to whether a certain cultural object located in

a museum should be returned. The parties may accept the advice or start court

proceedings.358 Only the Dutch Restitution Commission may issue binding

opinions, after parties have agreed to submit their dispute to the Committee. The

Spoliation Advisory Panel in England, again, works with recommendations, but in a

broader field of application. It not only serves in disputes but also responds to

governmental consultation requests.359 So far, these European committees and

commissions have stood outside the reach of indigenous peoples’ claims. However,

Norman Palmer, a member of the Advisory Panel in England, is encouraging

consideration of the expansion of the Panel’s responsibility to hear all cultural

property claims, unrestricted by the type of object claimed or the circumstances in

which it was removed.360 In this, the Panel would become a pioneer in hearing

international claims of indigenous peoples for the repatriation of their cultural

property from European possessors.

At the international level, the most prominent committee actively involved in

cultural property repatriation disputes is the UNESCO Intergovernmental Commit-

tee for Promoting the Return of Cultural Property to its Countries of Origin or its

Restitution in case of Illicit Appropriation. This Committee is mandated to facilitate

negotiations between states about cultural property restitutions and gives non-bind-

ing advice.361 In October 2010, the procedure was complemented by rules on

mediation and conciliation, which now enable the Committee to propose to the

357 Such commissions and committees include the German Advisory Commission for the Return

of Cultural Property Illegally Taken by the Nazis (‘Beratende Kommission im Zusammenhang mit

der Ruckgabe NS-verfolgungsbedingt entzogener Kulturguter, insbesondere aus judischem

Besitz’), the Dutch Restitutions Committee and the British Spoliation Advisory Panel. Lost Art

Koordinierungsstelle Magdeburg, ‘Beratende Kommission’ (1994), available at http://www.

lostart.de/Webs/DE/Kommission/Index.html. Advisory Committee on the Assessment of Restitu-

tion Applications for Items of Cultural Value and the Second World War, ‘The Restitutions

Committee’, available at http://www.restitutiecommissie.nl/en. The Department for Culture,

Media and Sport, ‘Spoliation Advisory Panel’, available at http://www.culture.gov.uk/what_we_

do/cultural_property/3296.aspx.358 In the Sachs case, the claimant asked for the return of two posters, which the Nazi ministry for

propaganda in Germany allegedly took from the claimant’s father in 1938. The Kammergericht

Berlin declined the claim and thereby followed the Advisory Commission, which recommended,

on 25 January 2007, not to return the posters. Zivilrechtliche Anspruche eines Erben einesjudischen Eigentumers einer durch das Reichspropagandaministerium des Dritten Reichesweggenommenen Plakatsammlung auf Ruckgabe (28 January 2010) 8 U 56/09 (Kammergericht

Berlin). On the case, see ‘Herausgabeanspruch bei NS-verfolgungsbedingt abhanden gekommenen

Sachen’ (2010) KUR: Journal fur Kunstrecht, Urheberrecht und Kulturpolitik, 12 (1), pp. 17–21.359 Palmer, Museums and the holocaust: Law, principles and practice, supra note 235, at p. 107.360 Palmer, ‘Relinquishment and responsibility’, supra note 177, at pp. 44–46.361 See infra section ‘Cultural Diplomacy by UNESCO’.


http://www.lostart.de/Webs/DE/Kommission/Index.html


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disputing parties to submit their case to this mediation procedure.362 The UNESCO

Committee, however, does not specifically refer to indigenous peoples’ interests.

Arbitration363

Another alternative to ordinary court litigation is arbitration. The UNIDROIT

Convention 1995 explicitly mentions arbitration as a possibility for resolving

restitution disputes over cultural property.364 The outcome of arbitration is a

binding arbitral award that is internationally enforceable under many national

states’ laws.365

The advantages of arbitration in comparison with ordinary court litigation is that

parties choose their arbitrators. Parties may also agree upon the procedural rules,

the language of the arbitration, and a neutral location, which are crucial elements in

international and legally complex disputes. The arbitration procedure is less formal

than ordinary court jurisdiction and takes place outside the legal apparatus of a

given country.366

Apart from ad hoc arbitration, several national and international organisations,

institutions, and associations offer institutionalised arbitration procedures at the

disposal of the parties’ choice.367 Some arbitration institutions even claim to have

developed a specialisation on cultural property disputes, such as the Venice Court

of National and International Arbitration.368 Also, the WIPO Arbitration and

362UNESCO, ‘Rules of Procedure for Mediation and Conciliation in Accordance with Article

4, Paragraph 1, of the Statutes of the Intergovernmental Committee for Promoting the Return of

Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation’,

(UNESCO Doc. CLT-2010/CONF.203/COM.16/7, 2010).363 This section draws on and updates previous work of the author. See Kuprecht and Siehr, ‘A

European perspective’, supra note 91.364 UNIDROIT Convention 1995, Article 8(2). See on this Article, Lawrence M. Kaye, ‘Disputes

relating to the ownership and status of cultural property’, in Quentin Byrne-Sutton and Fabienne

Geisinger-Mariethoz (eds), Resolution methods for art-related disputes: Proceedings of a sympo-sium organised on 17 October 1997 by the Centre du Droit de l’Art, Zurich: Schulthess, 1999,pp. 35–53, at pp. 51–53.365 The key instrument in international arbitration with regard to the recognition and enforcement

of foreign arbitral awards is the New York Convention on the Recognition and Enforcement of

Foreign Arbitral Awards, 330 UNTS 38 (adopted on 10 June 1958, entered into force 7 June 1959).366 Quentin Byrne-Sutton, ‘Resolution methods for art-related disputes: Art-Law Centre, Geneva

(October 17, 1997)’ (1998) International Journal of Cultural Property, 7, pp. 249–257, at p. 251[hereinafter Byrne-Sutton, ‘Resolution methods’]. For a fervent plea pro arbitration in cultural

property disputes, see Evangelos I. Gegas, ‘International arbitration and the resolution of cultural

property disputes: Navigating the stormy waters surrounding cultural property’ (1997) Ohio StateJournal on Dispute Resolution, 13, pp. 129–166, at pp. 151–166.367 On the difference between ad hoc and institutional arbitration, see Bernhard F. Meyer-Hauser,

‘Ad hoc Schiedsgerichtsbarkeit und UNCITRAL Verfahrensordnung’, in Andreas Kellerhals (ed.),

Schiedsgerichtsbarkeit, Zurich: Schulthess, 1997, pp. 207–222.368 Kurt Siehr, ‘Resolution of Disputes in International Trade, Third Annual Conference of the

Venice Court of National and International Arbitration’ (2001) International Journal of Cultural


Mediation Center recently started to emphasise its know-how in art and cultural

heritage-related dispute resolution. It provides a specialised Panel including

arbitrators and mediators with expertise.369 Several authors support such

endeavours by further suggesting, for example, the establishment of a cultural

property arbitration tribunal similar to the Court of Arbitration for Sport,370 poten-

tially in the realm of UNIDROIT.371

Well-known cases of cultural property arbitration evolved around disputes on

looted art taken from Jewish collectors during Nazi times.372 In matters of indige-

nous cultural property, however, little use is made of arbitration.373 This might be

due to several important disadvantages. A first one is that arbitration requires an

arbitration agreement between the parties. The conclusion of such an arbitration

clause takes place when parties start a contractual relationship. In cultural property

disputes, however, no such contractual relationship pre-exists. The agreement on

arbitration would require an extra step in an already adversarial negotiation pro-

cess.374 Another caveat is that arbitral tribunals, unless otherwise empowered by

Property, 10, pp. 122–126. In 2004, the Venice Court of National and International Arbitration andthe Venice Chamber of Arbitration merged into one organisation under the name ‘Venice

Chamber of National and International Arbitration’, see Juris International Arbitration and Medi-

ation Centres, ‘International Arbitration – Venice Chamber of National and International Arbitra-

tion’ (2006), available at http://www.jurisint.org/en/ctr/160.html. Other institutions that offer

arbitration are, for example, the Swiss Chambers’ Court of Arbitration and Mediation, the

World Intellectual Property Organization (WIPO) and the International Chamber of Commerce

(ICC).369WIPO, Arbitration and Mediation Center, ‘WIPO Alternative Dispute Resolution (ADR) for

Art and Cultural Heritage’, available at http://www.wipo.int/amc/en/center/specific-sectors/art/.

On the activities of the WIPO Arbitration and Mediation Center in the field of cultural property,

see Sarah Theurich, ‘The role of international institutional dispute resolution in art and cultural

heritage matters: The World Intellectual Property Organization (WIPO) and its Arbitration and

Mediation Center’, International Symposium of Litigation in Cultural Property: Judicial andAlternative Means of International Dispute Resolution, Geneva, 11 November 2011, Presentation

note (on file with the author).370 Gabrielle Kaufmann-Kohler, ‘Art et arbitrage: Quels enseignements tirer de la resolution des

litiges sportifs?’, in Quentin Byrne-Sutton and Fabienne Geisinger-Mariethoz (eds), Resolutionmethods for art-related disputes: Proceedings of a symposium organised on 17 October 1997 bythe Centre du Droit de l’Art, Zurich: Schulthess, 1999, pp. 123–151.371 Gegas, supra note 366, at pp. 163–165; and Byrne-Sutton, ‘Resolution methods’, supra note

366, at p. 255.372 See, for example, Altmann v Republic of Austria (15 January 2006), Arbitral Award, available

online at http://www.adele.at/Schiedsspruch/Schiedsspruch.pdf; and ‘The Metropolitan Museum

of Art – Republic of Italy Agreement of February 21, 2006’ (2006) International Journal ofCultural Property, 13, pp. 427–434, at p. 434.373 See Kurt Siehr, ‘Internationale Schiedsgerichtsbarkeit uber Kulturgut-Streitigkeiten’, in Peter

Hay, et al. (eds), Resolving international conflicts. Liber Amicorum Tibor Varady, Budapest andNew York: Central European University Press, 2009, pp. 255–266.374 At the international symposium organised by the Art-Law Centre on 17 October 1997 in

Geneva, the absence of a contract between parties in certain types of art-related disputes, specifi-

cally repatriation claims, was mentioned as one of the main obstacles to arbitration Byrne-Sutton,

‘Resolution methods’, supra note 366, at p. 254.


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http://www.wipo.int/amc/en/center/specific-sectors/art/

http://www.adele.at/Schiedsspruch/Schiedsspruch.pdf

both parties, are bound by the applicable state laws.375 Like ordinary courts, an

arbitral tribunal may thus principally not consider indigenous peoples’ customary

laws and traditions. Furthermore, arbitration remains an adversarial litigation

system that can involve burdensome disclosure procedures, even if less regulated

and formal than ordinary court litigation. Ultimately, the costs of arbitration build

an important access hurdle since they are at least as high as the costs of ordinary

court litigation.

Mediation376

A true alternative to litigation is mediation. A procedure qualifies as mediation

when it stands on a completely voluntary basis. Parties seek the support of a

mediator in order to find a mutual solution by settlement. Parties decide upon the

mediator, the process language, and the place where the mediation will take place.

In contrast to litigation or arbitration, mediators neither apply law, nor do they

primarily search for the correct application of law. It is thus the procedure most

independent from the law and predestined for the better consideration of history,

ethical and moral principles, as well as traditions and customs of indigenous

peoples. The procedure allows the development of unconventional remedies and

solutions beyond the jurisdictional scope of a judge. This gives room for

negotiating for mutual gain, or for ‘expanding the pie’.377

All these factors are especially advantageous in cases concerning indigenous

peoples’ cultural property. ICOM, together with the World Intellectual Property

Organization (WIPO), recently started to build upon this potential by creating the

ICOM-WIPO Mediation Rules and Procedures.378 Whether mediation will ulti-

mately be capable of comprehensively resolving international indigenous cultural

property repatriation claims is difficult to assess. Little is known about actual cases.

Mediation agreements are rarely published, since confidentiality is an important

feature of the procedure. Some insight is given by the following case on indigenous

human remains.

375 See, for example, Norman E. Palmer, ‘Extra-curial resolution of contract issues involving art

and antiquities: The English experience’, in Quentin Byrne-Sutton and Fabienne Geisinger-

Mariethoz (eds), Resolution methods for art-related disputes: Proceedings of a symposiumorganised on 17 October 1997 by the Centre du Droit de l’Art, Zurich: Schulthess, 1999,

pp. 55–81, at pp. 70–74.376 This section draws on and updates previous work of the author. See Kuprecht and Siehr, ‘A

European perspective’, supra note 91.377 Alan S. Rau, et al., ‘Mediating in art-related disputes’, in Quentin Byrne-Sutton and Fabienne

Geisinger-Mariethoz (eds), Resolution methods for art-related disputes: Proceedings of a sympo-sium organised on 17 October 1997 by the Centre du Droit de l’Art, Zurich: Schulthess, 1999,pp. 153–198, at pp. 155–171.378 ICOM, ‘ICOM-WIPO Art and Cultural Heritage Mediation’, available at http://icom.museum/

what-we-do/programmes/art-and-cultural-heritage-mediation/icom-wipo-art-and-cultural-heri

tage-mediation.html.


http://icom.museum/what-we-do/programmes/art-and-cultural-heritage-mediation/icom-wipo-art-and-cultural-heritage-mediation.html



Since the 1980s, the Tasmanian Aboriginal Centre (TAC) had tried to make the

London Natural History Museum (NHM) repatriate 17 human remains. When the

dispute was taken to the London High Court, the judge suggested that the parties

proceed with mediation. In May 2007, after a 3-day mediation session, the TAC and

the NHM found an agreement that provided for the dismissal of the legal

proceedings and for the repatriation of the remains to Tasmania. Repatriation

took place immediately afterwards.379

The fact that mediation could resolve in this case a nearly 30-year-old dispute

within 3 days is impressive. It could thereby profit from the power of a court that

induced the parties into mediation. As beneficial the circumstances might have

been, the case ultimately proves that mediation was necessary in order to overcome

all the remaining difficulties, including the deeply rooted differences in world views

and ideas about the use and function of indigenous cultural property, the often

involved public and political interests, and the legal barriers that restrict museums’

or cultural institutions’ freedom of action.

4.2.3.2 Cultural Diplomacy

General Remarks

These procedures that can be subsumed under a new understanding of ‘cultural

diplomacy’ provide important opportunities for resolving cultural property disputes

beyond ordinary dispute resolution. Cultural diplomacy today has the broad mean-

ing of ‘the exchange of ideas, information, art and other aspects of culture among

nations and their peoples to foster mutual understanding’.380 In contrast with other

diplomatic interactions, the communication between governments and foreign

people is at stake, rather than government-to-government relations.381 The promo-

tion of national cultures and the interactive international cultural exchange is

cultural diplomacy.382 Thereby, not only governments but also not-for-profit

379 Cornu and Renold, supra note 348, at p. 13; and Anne L. Bandle, et al., ‘Case Note –

17 Tasmanian Human Remains – Tasmanian Aboriginal Centre and Natural History Museum

London’ (2011) Platform ArThemis, Art-Law Centre University of Geneva, available at https://

plone2.unige.ch/art-adr/Affaires/case-tac-v.-natural-history-museum-london/Case%20Note%20-

%20TAC%20v.%20Natural%20History%20Museum%20London.docx/view.380 Cynthia P. Schneider, Diplomacy that works: ‘Best practices’ in cultural diplomacy,Washington D.C.: Center for Arts and Culture, 2003, at p. 1.381 Jessica C. E. Gienow-Hecht and Mark C. Donfried, ‘The model of cultural diplomacy: Power,

distance, and the promise of civil society’, in Jessica C. E. Gienow-Hecht and Mark C. Donfried

(eds), Searching for a cultural diplomacy, New York and Oxford: Berghahn Books, 2010,

pp. 13–29, at p. 11.382 Jessica C. E. Gienow-Hecht, ‘What are we searching for? Culture, diplomacy, agents, and the

state’, in Jessica C. E. Gienow-Hecht and Mark C. Donfried (eds), Searching for a culturaldiplomacy, New York and Oxford: Berghahn Books, 2010, pp. 3–12, at pp. 9–10.


https://plone2.unige.ch/art-adr/Affaires/case-tac-v.-natural-history-museum-london/Case%20Note%20-%20TAC%20v.%20Natural%20Hist...



organisations, private and public enterprises, and even individuals are the main

actors.383

In the realm of cultural property, Irini Stamatoudi states that cultural diplomacy

includes exhibitions of cultural property, loans, exchange of know-how and exper-

tise, co-organised and cooperated excavations, combined research, and coordina-

tion of cultural politics and policies. In her view, ‘[t]hese exchanges can be used as

a bargaining tool to put pressure on the resolution of cultural property claims or as a

basis for the creation of a positive friendly spirit within which such claims can be

solved’.384

This observation reflects the current reality of most indigenous cultural property

cases. If claims of indigenous peoples for their cultural property, especially the

international ones, are resolved at all, this usually happens through, and thanks to,

cultural diplomacy. International organisations, states, museums, cultural

institutions, and even private persons deal with indigenous peoples or their

representatives on a political or voluntary basis, in ad hoc arrangements. No court

is involved or jurisdiction induced.

Cultural Diplomacy by UNESCO

UNESCO is the key international organisation for cultural diplomacy. It was

established in 1945 as a post-war peacekeeping institution with responsibility for

coordinating the educational and cultural reconstruction in the Member States.385

The Member States thereby declared their intention to increase the means of

communication between their peoples in pursuit of objective truth and the free

exchange of ideas and knowledge ‘for the purposes of mutual understanding and a

truer and more perfect knowledge of each other’s lives’.386

With regard to international cultural property repatriation claims, UNESCO has

not only developed the UNESCO Convention 1970. It also practises cultural

diplomacy in order to help to resolve claims brought before the Intergovernmental

Committee for Promoting the Return of Cultural Property to its Countries of Origin

383 See Institute for Cultural Diplomacy, ‘What is cultural diplomacy?’, available at http://www.

culturaldiplomacy.org/index.php?en_culturaldiplomacy. The Institute for Cultural Diplomacy is a

not-for-profit, non-governmental organisation founded in 1999 in the United States, with head-

quarters in the United States, Bulgaria, Croatia, Ecuador, Slovenia, Romania and Germany.

Institute for Cultural Diplomacy, ‘About the Institute for Cultural Diplomacy’, available at

http://www.culturaldiplomacy.org/index.php?en_abouticd.384 Stamatoudi, supra note 267, at p. 208.385 Sarah E. Graham, ‘The (real)politics of culture: U.S. cultural diplomacy in UNESCO,

1946–1954’ (2006) Diplomatic History, 30 (2), pp. 231–251, at pp. 235–236.386 UNESCO Constitution, 4 UNTS 275 (adopted on 16 November 1945, entered into force

4 November 1946), Preamble.


http://www.culturaldiplomacy.org/index.php?en_culturaldiplomacy


http://www.culturaldiplomacy.org/index.php?en_abouticd

or its Restitution in case of Illicit Appropriation.387 The Committee is an intergov-

ernmental body consisting of a number of Member States and provides non-binding

advice in disputed cultural property restitution cases. It thereby seeks ways of

facilitating bilateral negotiations, advancing multilateral and bilateral cooperation,

and promoting exchanges of cultural property.388 The Committee, like the

UNESCO Convention 1970, has an obvious interstate focus without any

possibilities for indigenous peoples to bring forth their claims and needs unless

they are represented by their home state.

UNESCO’s cultural diplomacy activities with direct acknowledgement of indig-

enous peoples’ cultural property interests take place in projects. In UNESCO’s

education and science programmes, for example, environmental indigenous knowl-

edge has been an issue since the beginning of the twenty-first century. Thereby,

UNESCO launched the Local and Indigenous Knowledge Systems (LINKS), a

project that seeks to develop the respect, preservation, and maintenance of mainly

environmental knowledge about local and indigenous peoples as an essential

element in sustainable development and biological and cultural diversity.389 In

the realm of UNESCO’s programme of culture, there are some projects that foster

indigenous languages and indigenous peoples’ cultural diversity, including the

publication of a CD-ROM realised in cooperation with numerous indigenous and

non-indigenous authors, activists, researchers, artists, and publishers.390 Another

387 UNESCO, General Conference, ‘Resolution creating the Intergovernmental Committee for

Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in case of

Illicit Appropriation’, (UNESCO Doc. 20 C/Resolution 4/7.6/5, 1978).388 UNESCO, General Conference, ‘Statutes of the Intergovernmental Committee for Promoting

the Return of Cultural Property to its Countries of Origin or its Restitution in case of Illicit

Appropriation’, (UNESCO Doc. CLT/CH/INS-2005/21, October 2005) (adopted on 24 October –

28 November 1978, by 20 C/Resolution 4/7.6/5, supra note 387), Article 4. Marie C. Vallterra, ‘La

lutte internationale contre le trafic illicite des biens culturels et la Convention UNESCO de 1970:

L’experience trente-cinq ans apres’, in James A. R. Nafziger and Tullio Scovazzi (eds), Lepatrimoine culturel de l’humanite ¼ The cultural heritage of mankind, Leiden and Boston:

M. Nijhoff Publishers, 2008, pp. 559–598, at pp. 593–596.389 UNESCO, ‘Beginnings: Local & Indigenous Knowledge Systems (LINKS) project’, available

at http://portal.unesco.org/science/en/ev.php-URL_ID¼4856&URL_DO¼DO_TOPIC&URL_

SECTION¼201.html. For indigenous knowledge with regard to managing water interactions

and climate change see UNESCO, ‘Report by the director-general on the implementation of the

programme and budget (33 C/5) and on results achieved in the previous biennium (2006–2007)’,

(UNESCO Doc. 179 EX/4 Rev., Draft 35 C/3, 26 March 2008), at p. 18 [hereinafter UNESCO

Report 2006–2007]; and UNESCO, ‘Report by the director-general on the execution of the

programme adopted by the general conference’, (UNESCO Doc. 186 EX/4, Part I, 21 April

2011), at p. 26 [hereinafter UNESCO Report 21 April 2011].390 UNESCO, ‘Report of the director-general on the execution of the programme and budget

during the previous biennium (2002–2003)’, (UNESCO Doc. 170 EX/6, 33 C/3, 27 August 2004),

at p. 22 [hereinafter UNESCO Report 2002–2003].


http://portal.unesco.org/science/en/ev.php-URL_ID=4856&URL_DO=DO_TOPIC&URL_SECTION=201.html





project was the documentation of about 20 Brazilian indigenous cultures and

languages.391

Furthermore, UNESCO initiated partnerships with indigenous institutions and

communities through Goodwill Ambassadors and Artists For Peace.392 A coopera-

tion with UNPFII was started to promote the cultural identity of indigenous peoples

and encourage intercultural dialogue as a foundation for sustainable

development.393

After its adoption, UNDRIP became the point of reference for UNESCO in

dealing with indigenous peoples’ interests. UNESCO thereby detected that indige-

nous peoples were not yet adequately represented and consulted on reflections on

implementing UNESCO normative instruments in the field of culture.394 In conse-

quence, it launched in-house consultations and collaboration with UNPFII and the

wider research community with the intention of mainstreaming the rights and

aspirations of indigenous peoples and creating links of UNESCO’s Conventions

with UNDRIP.395 Furthermore, UNESCO’s Director General decided to develop a

UNESCO policy for engaging with indigenous peoples to provide orientation and

guidance in this area.396

Ultimately, however, UNESCO remains an international organisation that is

guided by its intergovernmental logic.397 States are the primary and sovereign

actors, and UNESCO’s cultural diplomacy endeavours in relation to indigenous

peoples stand and fall with the support and agreement of governments. At the same

time, one has to remember that currently no UNESCO convention particularly

addresses indigenous peoples’ cultural property repatriation claims.

Cultural Diplomacy by Governments

States Representing Indigenous Interests

States have a systemic interest in promoting national culture. That is why many

international cultural property repatriation claims involve states either on the

391 UNESCO, ‘Report by the director-general on the execution of the programme (34 C/5)

(01 January 2008 – 30 June 2009) major programme IV, culture’, (UNESCO Doc. 182-EX4/

MAF/CLT, Part II), at p. 26.392 UNESCO Report 2002–2003, supra note 390, at p. 22.393 UNESCO Report 2006–2007, supra note 389, at p. 32.394 UNESCO, ‘Report by the director-general on the execution of the programme (34 C/5)

(01 January – 31 December 2008) major programme IV, culture’, (UNESCO Doc. 181-EX4/

MAF/CLT, Part II), at p. 26.395 UNESCO Report 21 April 2011, supra note 389, at p. 62. UNESCO, ‘Report by the director-

general on the execution of the programme adopted by the general conference’, (UNESCO Doc.

187 EX/4, Part I, 26 August 2011), at p. 63 [hereinafter UNESCO Report 26 August 2011].396 Ibid., at p. 64.397 Bandarin, supra note 116, at p. 308.


claimant’s or defendant’s side. This is also true for international repatriation claims

of indigenous peoples, even though the indigenous groups often have their own

distinct interests that may be different from those of the national state. However, the

benefits from states’ diplomatic channels regularly outweigh the potential of con-

flict. It was only at the official request of the state of South Africa that France

repatriated the Hottentote woman. When an ethnic group from Uruguay demanded

repatriation of human remains without any governmental support, France refused

repatriation.398

A country that actively engages in cultural diplomacy on behalf of its indigenous

people is New Zealand. Together with the National Museum Te Papa Tongarewa in

Wellington,399 it successfully repatriated mokomokai from France and other human

remains from England.400 So far, the country has lost a claim for Maori carvings in

Attorney-General of New Zealand v Ortiz,401 which is why the country is currently

being more careful with international claims for Maori cultural objects or taonga.402

Australia has also increased its support for international repatriation claims of

the Aborigines. After successful international repatriations of Aborigines’ human

remains,403 the Australian Government decided in August 2011 to declare interna-

tional repatriations of human remains to be of governmental concern. It issued the

Australian Government Policy on Indigenous Repatriation404 and gave interna-

tional repatriation endeavours a prominent position. On the official website, one

reads405:

398 Cornu and Renold, supra note 348, at p. 10.399 On the policy of the national Museum Te Papa Tongarewa in relation to the Maori and their

interests in the objects, see infra section ‘Cultural Diplomacy by Museums’.400 For New Zealand’s repatriation of mokomokai from France, see supra section ‘France’. For the

state’s activities in relation to the United Kingdom, see The British Museum, ‘Human Remains.

Request for Repatriation of Human Remains to New Zealand’, Minutes of the Meeting of theTrustees (April 2008).401 On Attorney-General of New Zealand v Ortiz, see supra note 256; and supra section ‘Public

Cultural Property Law’.402Wai 262 Report, supra note 356, at p. 502.403Most recently, in March 2011, the Natural History Museum in London announced the return of

around 138 remains of Torres Strait Islander ancestors to their communities of origin. Australian

Government, Department of Regional Australia, Local Government, Arts and Sport, ‘Indigenous

Repatriation Program’, available at http://www.arts.gov.au/indigenous/repatriation. For

repatriations from the British Museum, see The British Museum, ‘Human remains. Request for

Repatriation of Human Remains to Tasmania’, Minutes of the Meeting of the Trustees (March

2006); The British Museum, ‘Human remains. Request for Repatriation of Human Remains to the

Torres Strait Islands, Australia’, Web Announcement, available at http://www.britishmuseum.org/

about_us/news_and_press/statements/human_remains/repatriation_to_torres_strait.aspx; and

‘First Aborigi-nal remains to be returned from U.S.’, Reuters (25 July 2008), available online at

http://www.reuters.com/article/2008/07/26/us-australia-aborigines-idUSSP219996 20080726.404 Australian Government, ‘Policy on indigenous repatriation’, supra note 302.405 Ibid.


http://www.arts.gov.au/indigenous/repatriation

http://www.britishmuseum.org/about_us/news_and_press/statements/human_remains/repatriation_to_torres_strait.aspx


http://www.reuters.com/article/2008/07/26/us-australia-aborigines-idUSSP219996%2020080726

In relation to overseas collections, the Australian Government seeks the unconditional

return of Aboriginal and Torres Strait Islander ancestral remains. The Australian Govern-

ment sees repatriation as a decision to be made voluntarily by overseas governments and

institutions in collaboration with the relevant Aboriginal and Torres Strait Islander

communities.

It is understood that there are currently Aboriginal and Torres Strait Islander remains

held in numerous overseas collections, most being held in the United Kingdom (UK),

Germany, France, Poland, Czech Republic and the United States of America. The Office for

the Arts (OFTA) has established relationships with these countries and is developing

relationships with a number of other European countries in order to progress the repatri-

ation of Indigenous ancestral remains.

Bolivia is another example, where the government has cooperated with the

country’s indigenous peoples. Intervention of the Bolivian embassy in 1988 had

the effect that the United States’ customs confiscated sacred Coroma textiles406 in

the realm of an investigation about suspected fraud, theft, and illegal importation

into the United States. As a backup, the Bolivian government referred to the

Bolivian Constitution, which prohibits export of the archaeological, artistic, and

historical riches of the country.407 For the Coromenos’ repatriation claims, Bolivia

even extended its purely representative function and took additional legal measures.

In May 1988, by a supreme decree the Bolivian government amended the exporta-

tion prohibition and included the textiles produced prior to 1950, whereas before

only those produced prior to 1900 were protected. In addition, it initiated formal

legal proceedings against Coroma residents and intermediaries involved in the theft

of sacred weavings. At the same time, it formally submitted a request to the United

States for emergency restrictions on the importation of Coroma textiles in view of

the UNESCO Convention 1970. The United States responded by imposing import

restrictions on Coroma textiles for a 5-year period.408

However, not every country shows interest and activity in representing their

indigenous peoples to reclaim their cultural property. The United States, for

example, despite the exemplary state-internal solution with NAGPRA, does not

appear on the international level as a country that is reclaiming Native American

cultural property.409 This must be due to political unwillingness, since legally there

would be sufficient grounds to require such tribal representation from the Federal

Government. The United States undertakes to represent Indians in suits at law and

in equity,410 and the federal Department of the Interior is disposed with the power to

406 On the Coroma textiles, see supra section ‘The Sacred Textiles of the Coromenos’.407 Lobo, supra note 313. For the effects in Canada, see Robert K. Paterson, ‘Case notes: Bolivian

textiles in Canada’ (1993) International Journal of Cultural Property, 2, pp. 359–370.408 Lobo, supra note 313.409 In the 2013 Hopi case concerning the reclaiming of kat’sina masks from a Paris auction house,

the activity of the United States Ambassador to France was limited to an expression of concern.

‘Hopi tribe masks fetch record prices at Paris auction’, BBC News Europe (12 April 2013),

available online at http://www.bbc.co.uk/news/world-europe-22119146. See on this case supra

section ‘France’.410 25 U.S.C. § 175.



manage Indian affairs and all matters arising out of Indian relations.411 Also, the

trust responsibility of the Federal Government vis-a-vis Indian tribes would require

them to become active upon their request.412

Finally, not every governmental claim for repatriation of indigenous cultural

property is in support of the indigenous people. Mexico’s claim against the Austrian

Museum of Ethnology Vienna (‘Museum fur Volkerkunde’) for the return of the

crown of Montezuma, for example, erroneously figures in the literature as an

indigenous peoples’ cultural property claim.413 The crown of Montezuma

originated from a king who was indigenous. Yet, Mexico uses such indigenous

history to promote national state authority. It explicitly justifies its repatriation

claim with the argument that the crown of Montezuma is a symbol for the new state

of Mexico and a witness to the demise of the indigenous cultures.414 This content of

the claim diametrically contradicts indigenous peoples’ claims that ultimately led to

the adoption of UNDRIP.

Governmental Bodies Developing Procedural Solutions

The development of governmental procedures for resolving indigenous peoples’

cultural property repatriation claims is another way how states practise cultural

diplomacy. An important example was the strategy chosen by the Glasgow City

Council for resolving, inter alia, the repatriation claim from a delegation of the

Wounded Knee Survivors Association.

In 1995, this Association, together with a Lakota elder, asked the Glasgow

Museums for the repatriation of a ghost dance shirt and other potential Wounded

Knee objects. They had been donated to the Glasgow Museums in January 1892 by

George Crager, ‘an Indian interpreter who may well have acquired the shirt from

the body of a victim of the massacre at Wounded Knee’.415 The then Director of the

Glasgow Museums referred the Lakota to the Glasgow City Council. As a first

response, the Arts and Culture Committee of the City Council established a cross-

party Working Group on Repatriation. The Working Group was mandated to devise

a procedure that was able to deal with the ethical issues involved, to reflect the

democratic ambitions of the Council, and to make recommendations to the

411 25 U.S.C. §§ 1 and 2.412 On the federal ‘trust responsibility’ to Native American tribes, see Goldberg, ‘A United States

perspective on the protection of indigenous cultural heritage’, supra note 345, at pp. 334–335.413 See, for example, Asmuss, supra note 107, at pp. 19–20.414 Austria, Parliament of the Austrian Republic, Wolfgang Zinggl, et al., ‘Schenkung der

“Federkrone Montezumas” an Mexiko’, Entschliessungsantrag (524/A(E)XXIV.GP,

11 March 2009).415 UK Report I, supra note 171, at para. 136. On the ghost dance shirts and the massacre at

Wounded Knee, see supra section ‘The Ghost Dance Shirts of the Lakota’.


Committee. Finally, the Committee decided to look at the following criteria against

which all repatriation claims would be judged416:

1. The status of those making the request i.e. their right to represent the community

to which the object/s originally belonged.

2. The continuity between the community which created the object/s and the

current community on whose behalf the request is being made.

3. The cultural and religious importance of the object/s to the community.

4. How the object/s have been acquired by the museum and their subsequent and

future use.

5. The fate of the object/s if returned.

The procedure itself involved extensive public consultation and a public hearing.

Views on the historical background of the object and from the museum community

were canvassed. The process ended with a recommendation to the Council that

agreed to the repatriation of a ghost dance shirt and the rejection of the repatriation

claim of the other objects.417

The Select Committee on Culture, Media and Sport of the British House of

Commons was so impressed by the procedure of the Glasgow City Council that it

recommended to the British government in 2000 that the procedure should serve in

England as a model for handling claims for the return of cultural property.418

Cultural Diplomacy by Museums

Museums are the central grassroots agents in cultural property diplomacy. Next to

their primary tasks of collecting, preserving, interpreting, exhibiting, and promot-

ing cultural property,419 they have become important allies in fighting against illicit

trafficking and keeping the cultural property market clean.420 They are expected to

serve as platforms for promoting democracy421 and to enhance capacities of least

developed countries in protecting and conserving moveable cultural property.422

416 United Kingdom, House of Commons, Select Committee on Culture, Media and Sport,

‘Cultural property: Return and illicit trade’, Seventh Report, Minutes of Evidence, Memorandumsubmitted by Glasgow City Council, (Vol. II, HC 371-II, 18 July 2000), at ch. 3.417 Ibid.418 UK Report I, supra note 171, at para. 136.419 ICOM Code of Ethics, Articles 1–5.420 UNESCO Report 26 August 2011, supra note 395, at p. 59. UNESCO Convention 1970,

Preamble.421 UNESCO has reoriented its International Safeguarding Campaign for the National Museum for

Egyptian Civilizations in order to use this museum as a platform for democracy. The organisation

also reports that many concrete activities will be under way in Arab countries to use museums as

platforms for democracy. UNESCO Report 26 August 2011, supra note 395, at pp. 59–60.422 UNESCO works on intensive museum capacity-building sessions and museum training tools.

UNESCO Report 26 August 2011, supra note 395, at p. 60.


Thereby, the International Council of Museums (ICOM), which functions as a

diplomatic forum in cultural property exchange, provides important support.423

Within the spectrum of cultural diplomacy tasks, museums with collections of

indigenous objects increasingly exchange and cooperate with the indigenous

groups. This follows the ICOM Code of Ethics, which explicitly requires coopera-

tion ‘with communities from which their collections originate’.424 However,

museums’ cultural diplomacy as such goes beyond ethical guidelines. It is the

active realisation of cooperation projects, the setting-up of the necessary

procedures, and the development of relationships in order to establish such

exchange with indigenous peoples’ repatriations that have proved to be key.

The exchange and repatriation programme of the NMAI is the leading example

of cultural diplomacy in dealing with indigenous peoples’ cultural property

claims.425 Also the National Museum Te Papa Tongarewa in Wellington,

New Zealand, runs a repatriation programme.426 At the same time, it functions as

a sacred repository for Maori human remains.427 In Australia, the government funds

eight collecting institutions to cooperate with Aborigines by managing their cultural

property claims.428 Due to the Human Tissue Act 2004, even the British Museum

became involved in dealing with indigenous peoples. It set up a procedure that

regulates in detail how to resolve indigenous peoples’ claims for repatriation of

human remains.429

Repatriations are an important element of cultural diplomacy of museums.

However, museums have made positive experiences with all different forms of

cooperation with indigenous peoples. One success of the Glenbow Museum in

Calgary, for example, was the partnership with the Plains Indian Cultural Survival

School, which enabled students to help develop exhibitions at the Museum. Another

form of cooperation between the Museum and the Blackfoot was the common

organisation of a permanent exhibition presenting the culture and history of the

Blackfoot-speaking people.430 From Asia, the National Taiwan Museum reports

about cooperation with indigenous peoples. A first approach, by which the Museum

organised ad hoc exhibitions and sent them on tour to indigenous cultural centres,

423 ICOM, International Council of Museums, ‘ICOMmissions’, available at http://icom.museum/

who-we-are/the-organisation/icom-missions.html.424 ICOM Code of Ethics, Article 6. For detail, see supra section ‘The ICOM Code of Ethics’.425 See supra Sect. 3.1.2.426Museum of New Zealand Te Papa Tongarewa, ‘Repatriation’, available at http://www.tepapa.

govt.nz/aboutus/repatriation/Pages/overview.aspx.427 Robin Watt, ‘Museums can never own the remains of other people but they can care for them’

(1995) U.B.C. Law Review, 77, pp. 77–89, at p. 78.428 The Australian Museum (Sydney); the Museum and Art Gallery of the Northern Territory;

Museum Victoria; the National Museum of Australia; the Queensland Museum; the South

Australian Museum; Tasmanian Museum and Art Gallery; and the Western Australian Museum.429 The British Museum, ‘Human remains’, supra note 305.430 Davis, ‘Repatriation of indigenous artifacts and beyond: How the Glenbow Museum is

attempting to change colonial attitudes’, supra note 320, at pp. 120–121.


http://icom.museum/who-we-are/the-organisation/icom-missions.html





failed. It was too museum centred and too paternalistic. Under a new approach,

however, the Museum further opened up to indigenous communities and invited

them to take the initiative. They could propose exhibitions, organise them, and

select the venues. The Museum thereby experienced exciting inputs from tribal

communities with regard to objects believed to be forgotten but with ongoing

importance to the tribes. The Museum is planning to draw on additional resources

to implement more collaborative exhibitions.431

In view of such reports, the cultural diplomacy of museums vis-a-vis indigenous

peoples proves to be an important and inspiring element of museum practice that

should develop as a standard.432 Little is known about cultural diplomacy activities

of European museums with indigenous collections. Is the reason geographical

distance or the lack of financial resources? Or is it the perpetuation of a spirit of

colonial primacy?

Cultural Diplomacy by Private Parties

The last setting of cultural diplomacy involves individual persons or corporate

entities and indigenous peoples. The activities often take place on a voluntary and

even proactive basis induced by the collectors with repatriation as the preferred

outcome.

In the United States, Elizabeth Sackler is a well-known driving force behind

such voluntary activities. Sackler committed herself to support cultural property

claims of Native Americans in 1991, when Sotheby’s auction house in New York

City ignored the Hopi and Navajo nations’ request to remove three ceremonial

masks (two kat’sina and a yebeiche) from Sotheby’s annual Fine American Indian

Arts auction. She went to the auction and purchased the three masks in order to

return them to the tribes. She explained this action by stating433:

My father, who passed away in 1987, had been a collector of Asian antiquities. I grew up

around collections and museums. It seemed clear to me that the material the Hopi and the

Navajo requested to be returned did not belong on the art market.

With her voluntary intervention, Sackler encountered what she called the open-

ing of a door into a new world for herself, as well as the opening of a door ‘through

which gusts of new wind would blow throughout this country’. She founded the

431 Patricia H. Huang and Tsung-Huang Hsiao, ‘The brave music of a distant drum’, in ICOM

International Committee for Museology (ed.), ‘Deaccession and return of cultural heritage: A new

global ethics’ (2010) ICOFOM Study Series ISS, 39, pp. 145–154, at pp. 149–150.432 Tsosie, ‘Native nations and museums’, supra note 63, at pp. 16–19.433 Elizabeth Sackler, ‘Section IV. The private sector. Chapter 1: About the American Indian

Ritual Object Repatriation Foundation’, in American Indian Ritual Object Repatriation Founda-

tion (ed.), Mending the circle: A Native American repatriation guide: Understanding andimplementing NAGPRA and the official Smithsonian and other repatriation policies, New York:

American Indian Ritual Object Repatriation Foundation, 1996, pp. 58–63, at p. 58.


American Indian Ritual Object Repatriation Foundation and initiated the produc-

tion of a comprehensive repatriation guide under the title ‘Mending the Circle’.434

The Foundation developed into a rich source of papers, articles, lectures, and panel

discussions on repatriation.435 It established strategies and procedures for private

collectors with the intention of repatriating Native American cultural property or

for Native Americans that intended to raise a claim.436 On request, the Foundation

acts as an intermediary between individual or corporate collectors and the Native

Americans.437 From the ‘News and Notes’, which the Foundation biannually

published from 1994–2003, one learns that the Foundation enabled and

accompanied dozens of voluntary repatriations of private persons or corporations.

Thereby, the fact that donors could make a tax deduction for the repatriated objects

worked as an important incentive.

Like Sackler, the Antique Tribal Art Dealers Association (ATADA) has taken

steps to show its willingness to cooperate with Native Americans, such as the

voluntary repatriation of an ahayu:da (war god) to the Zuni people by the former

Executive Director of ATADA and the circulation of notices of stolen objects on

behalf of the Zuni, the Hopi, and various museums and collectors.438

Furthermore, Sotheby’s auction house in New York also took more or less

voluntary steps. It issued a policy according to which the relevant Indian tribes of

Native Americans had to be notified before objects were auctioned. If a tribe

considered the object culturally sensitive, Sotheby’s was ready to remove it from

the auction if requested to do so.439 In 2001, however, Sotheby’s closed its

American Indian art and Pre-Columbian art departments for economic reasons.

The sale was transferred to the internet and live auctions. Sotheby’s at the same

time confirmed the continuation of the notification and removal policy as

implemented in 1995.440

434 American Indian Ritual Object Repatriation Foundation (ed.), Mending the circle: A NativeAmerican repatriation guide: Understanding and implementing NAGPRA and the officialSmithsonian and other repatriation policies, New York: American Indian Ritual Object Repatri-

ation Foundation, 1996.435 American Indian Ritual Object Repatriation Foundation, ‘An intercultural partnership’, avail-

able at http://www.repatriationfoundation.org/index.html.436 Kate Morris, ‘Section IV. The private sector. Chapter 2: Strategies and procedures for the

repatriation of materials from the private sector’, in American Indian Ritual Object Repatriation

Foundation (ed.), Mending the circle: A Native American repatriation guide: Understanding andimplementing NAGPRA and the official Smithsonian and other repatriation policies, New York:

American Indian Ritual Object Repatriation Foundation, 1996, pp. 64–71.437 Ibid., at p. 65.438 ATADA Goals, ATADA Bylaws and Policies, supra note 282.439 American Indian Ritual Object Repatriation Foundation, ‘Sotheby’s new policy’ (1995) Newsand Notes, 2 (1), at p. 3.440 American Indian Ritual Object Repatriation Foundation, ‘Sotheby’s closes American Indian

Art Department’ (2001) News and Notes, 8 (2), at p. 2.


http://www.repatriationfoundation.org/index.html

4.2.3.3 Conclusions

On a procedural level, many promising activities have taken place in resolving

international disputes with indigenous peoples with regard to their cultural prop-

erty. Whereas court litigation and arbitration add little to improve the situation, the

idea of committees or commissions that specifically deal with cultural property

claims is advancing in practice and theory, and mediation procedures provide an

interesting and suitable resolution mechanism. Various states, UNESCO, museums,

and private parties are all contributing by engaging in cultural diplomacy through

dialogue, cooperation, and voluntary repatriations. A close consensus-based

exchange, minimal legal formalities, and low costs are important key elements of

these procedural approaches.

The active and positive picture drawn from procedural approaches may, how-

ever, not conceal that it ultimately remains a collection of few individual cases. The

involved institutions and procedures all facilitate, to some extent, the resolving of

indigenous peoples’ repatriation cases. However, in relation to the huge amount of

indigenous cultural objects that are still stored in collections, the activities remain a

drop in the ocean. With the exception of cultural diplomacy, procedural solutions

ultimately leave indigenous peoples within the role of the plaintiffs. They, all the

same, face the hurdle of making and financing the international step in addressing

the holders of their cultural property. The risk of possible contradictory substantive

law maintains its influence. A negotiated solution between indigenous peoples and

the current holder of an object may be challenged and overturned due to such law or

a powerful interest. Every process is institutionally and procedurally different;

external experts, intermediaries, or representatives are necessary; and all the issues

raised need to be resolved from the beginning anew. A multitude of possible

existing laws, guidelines, and opinions make the process lumbering and involve

great amounts of human and financial resources.

Procedural approaches may thus provide new venues for more appropriately and

efficiently resolving single cases. Yet they cannot replace substantive law that

remains necessary to sustainably enhance the willingness to deal with indigenous

peoples’ repatriation claims on the basis of equal cultural profit-sharing, regardless

of the geographical area from which the groups stem.


Chapter 5

Requirements and Objectives

for Appropriate Solutions

The previous chapters show that the cultural property law on an international level

and in European cultural property market countries do not provide sufficient

solutions with regard to international cultural property repatriation claims of indig-

enous peoples. Transnational law and procedures are not efficient enough, to create

legal certainty, and might ultimately leave the indigenous peoples unheard. The

possessors of indigenous cultural property are thereby left with most difficult

political, legal, and ethical questions to deal with. The general problem of indige-

nous peoples’ cultural property repatriation claims as such thus remains unresolved.

As NAGPRA proves, however, state law would be capable and important for

resolving the claims and paving the way for a revival of a cultural property

exchange between cultural institutions and indigenous peoples.

Against this background, the following chapter will make some suggestions as

how the law could and should develop in order to provide appropriate support for

resolving international cultural property claims of indigenous peoples. Thereby,

two requirements and one objective are key: (1) participation of indigenous

peoples, (2) respect for their customs and customary law, and (3) a right to

repatriation, use, or access.

5.1 Participation of Indigenous Peoples

5.1.1 A Way to Bridge Different World Views

The basic differences in perceptions and world views between western and indige-

nous minds, as outlined above,1 make it generally very difficult to find appropriate

1 See supra Sect. 2.3.3.


157


solutions for indigenous peoples’ cultural property repatriation claims. Graber

describes this fundamental challenge as follows2:

From an epistemological perspective, the difference between indigenous and

non-indigenous worldviews implies that in our scientific aspirations of gaining knowledge

we are ultimately always stopped at a point where a veil covers what cannot be accessed by

a modern mind.

According to Graber, the consciousness of this non-accessibility of each other’s

world, and the non-negotiability of the difference, is a first important insight. When

turning to the question of how to bridge the impossibility of looking behind the

veils, Graber identifies participation as a most promising methodological solution.

It is the kind of participation that has an important relevancy and positive effect on

the development of poor regions and a country’s quality of democracy.3 John Scott

and Federico Lenzerini describe it as the stage of ‘deep listening and responding,

consistently with the ability that indigenous Australians call “Dadirri”’.4 Not only

have an increasing number of scientists placed the principle of indigenous partici-

pation at the forefront of appropriate solutions for contact with indigenous peoples,

but participation of indigenous peoples has also normatively received important

attention specifically in the field of human rights.

5.1.2 Participation of Indigenous Peoples in General

Participation of indigenous peoples constitutes one of the cornerstones in the ILO

Convention 1695 and UNDRIP.6 Also the UNESCO Conventions 2003 and 2005

oblige states to let indigenous peoples participate in implementing the measures

provided for in the conventions.7 Apart from the referral in these legal instruments,

the principle caused an explosion of new normative orders at international and

2Christoph B. Graber, ‘Stimulating trade and development of indigenous cultural heritage by

means of international law: Issues of legitimacy and method’, in Christoph B. Graber, et al. (eds),


Northampton MA: Edward Elgar, 2012, pp. 3–30, at p. 4.3 Ibid., referring to Amartya K. Sen, Development as freedom, New York: Anchor Books, 2000; or

Amartya K. Sen, ‘How does culture matter?’, in Vijayendra Rao and Michael Walton (eds),

Culture and public action, Stanford: Stanford University Press, 2004.4 John Scott and Federico Lenzerini, ‘International indigenous and human rights law in the context

of trade in indigenous cultural heritage’, in Christoph B. Graber, et al. (eds), International trade inindigenous cultural heritage: Legal and policy issues, Cheltenham UK and Northampton MA:

Edward Elgar, 2012, pp. 61–87, at p. 70. The authors explain that ‘Dadirri’ is a word from the

Ngangikurungkurr Tribal Group from Daly River Region in Far Northern Australia.5 UNDRIP, Articles 5, 18, 27 and Article 41.6 ILO Convention 169, Articles 2(1), 5(c), 7(2), 22(1) and (2) and 23(1); see ILO, ‘Convention

No. 169’, available at http://www.ilo.org/indigenous/Conventions/no169/lang–en/index.htm.7 See supra sections ‘UNESCO Convention 2003’ and UNESCO Convention 2005’.

158 5 Requirements and Objectives for Appropriate Solutions

http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm

national levels, for example, in the field of extractive industries.8 Participation of

indigenous peoples became a new public policy phenomenon that is on its way to

evolving into a firm international human rights standard and an imperative at the

core of policies such as the UN Millennium Development Goals.9

A contextualisation of the international principle of participation in public and

private governance structures has yet to follow. Authors have started to analyse the

principle in relation to democratisation processes and democratic governance

theories.10 However, they do not go beyond case-by-case studies and result in

general guidelines that define the necessary elements for meaningful

participation. Participation should, for example:

a) Be carried out in good faith,

b) Be based on a genuine and constant dialogue between the state [or the

institutions] and the affected communities,

c) Be carried out prior to the planned measure,

d) Involve legitimate representatives from all local communities affected,

e) Be carried out in a social, linguistic, and culturally adequate way,

f) Aim to achieve the consent of the consulted communities, and

g) Recognise established agreements as binding.11

The advantage of such lack of theoretical embedding of participation as a

principle is that in practice it may work beyond pre-existing legal structures and

procedures and penetrate every international organisation, national state, and pri-

vate law body in overcoming their fundamental differences in organisation and

objective.

5.1.3 Participation of Indigenous Peoples and Governance

At the international level, the new acknowledgement of indigenous peoples’ partic-

ipation in institutional governance becomes visible by the readiness of international

organisations to welcome indigenous peoples to participate in particular activities.

8 Almut Schilling-Vacaflor, ‘Democratizing resource governance through prior consultations?

Lessons from Bolivia’s hydrocarbon sector’ German Institute of Global and Area Studies,GIGA Working Papers No. 184 (2012), at p. 5, available at http://papers.ssrn.com/sol3/papers.

cfm?abstract_id¼1984033. See also Mauro Barelli, ‘Free, prior and informed consent in the

aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and

challenges ahead’ (2012) The International Journal of Human Rights, 16, pp. 1–24.9 UN Millennium Declaration, General Assembly Resolution (UN Doc. A/RES/55/2) (adopted on

18 September 2000). UN, Economic and Social Council, Permanent Forum on Indigenous Issues,

‘Report of the international workshop on methodologies regarding free, prior and informed

consent and indigenous peoples’, (UN Doc. E/C.19/2005/3, 17 February 2005), at p. 10.10 See, for example, Schilling-Vacaflor, supra note 8, at pp. 6–7.11 Ibid., at pp. 8–9.

5.1 Participation of Indigenous Peoples 159

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1984033



Most importantly, indigenous peoples take part in UN bodies specially established

for representing their interests, such as the UNPFII.12 Or they participate in the

central UN bodies through accredited NGOs that take a stand for indigenous

peoples’ rights.13 In exceptional, yet increasing numbers of, cases indigenous

peoples directly participate in the drafting of international legal instruments. This

happened specifically during the UNDRIP negotiations and the drafting of the

Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable

Sharing of Benefits Arising from their Utilization to the Convention on Biological

Diversity (Nagoya Protocol).14 Also WIPO offers a possibility for indigenous

peoples to participate in the ongoing drafting of international legal instruments on

traditional knowledge (TK) and traditional cultural expressions (TCE) through the

Intergovernmental Committees on Intellectual Property and Genetic Resources,

Traditional Knowledge and Folklore (IGCs).15

Whether and how indigenous peoples participate in the decision-making of

states, at a national or local governance level, largely depends on a state’s constitu-

tion and the actual prevailing policies. Principally, no participation of indigenous

peoples takes place in countries without indigenous peoples living in their

territories, and it is utopic to expect that a European state, for example, would

involve non-European indigenous peoples at the level of legislation and decision-

making, even if the issue touches on indigenous cultural heritage or property. In this

setting, the new international principle of indigenous peoples’ participation is at

odds with sovereignty of states.

5.1.4 Free Prior Informed Consent (FPIC) and Consultationor Cooperation

Next to the governance level, the principle of indigenous peoples’ participation also

applies in specific circumstances where activities of private, public, or

12 See supra Sect. 2.3.1.1.13 In the UN, a consultative relationship between the UN and NGOs was established in 1963, by

UN, Economic and Social Council, ‘Consultative relationship between the United Nations and

non-governmental organizations’, Resolution, (UN Doc. E/RES/1996/31, 25 July 1996). For an

analysis of indigenous peoples and civil society participation in international organisations, see

Enzamaria Tramontana, ‘Civil society participation in international decision making: Recent

developments and future perspectives in the indigenous rights arena’ (2012) The InternationalJournal of Human Rights, 16, pp. 173–192.14 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits

Arising from their Utilization to the Convention on Biological Diversity (UN Doc. UNEP/CBD/

COP/DEC/X/1) (adopted on 29 October 2010) [hereinafter Nagoya Protocol].15Martin Girsberger and Benny Muller, ‘International trade in indigenous cultural heritage: An

IP-practitioners’ perspective’, in Christoph B. Graber, et al. (eds), International trade in indige-nous cultural heritage: Legal and policy issues, Cheltenham UK and Northampton MA: Edward

Elgar, 2012, pp. 175–195, at pp. 192–194.



public–private actors meet over indigenous peoples’ interests. Thereby, the princi-

ple manifests itself in the first instance in the concept of free, prior and informedconsent (FPIC). FPIC was introduced by the ILO Convention 169 as a prerequisite

for the relocation of indigenous peoples.16 UNDRIP took up and implemented FPIC

in several more provisions, mainly concerning activities that affect indigenous

peoples’ land and resources, as well as (cultural) property.17 Despite the original

concerns of the countries originally voting against UNDRIP (Australia, Canada,

New Zealand, and the United States) that FPIC would deploy a veto right of

indigenous peoples,18 FPIC today finds important applicability in mining activities

or other development projects on indigenous lands.19 The concept also entered the

Nagoya Protocol, which requires Member States to take measures ensuring the

prior informed consent of indigenous communities for access to genetic resources

and access to traditional knowledge associated with genetic resources.20

Another established form of indigenous peoples’ participation is consultation orcooperation. The ILO Convention 169 and UNDRIP stipulate this form of partici-

pation in several provisions.21 In comparison with FPIC, consultation and coopera-

tion is generally understood to be less far-reaching since the party seeking

consultation with indigenous peoples keeps ultimate decision power. However, as

we learn from the guidelines outlined above, meaningful participation in every case

aims to achieve the consent of the consulted communities.

16 ILO Convention 169, Article 16(2).17 See UNDRIP, Article 11(2) for property takings; Article 28(1) for land takings; Article 29(2) for

storage or disposal of hazardous materials on indigenous lands; and Article 32(2) for the exploita-

tion of indigenous resources. Other provisions on free, prior and informed consent are UNDRIP,

Article 10, for relocations of indigenous peoples; and Article 19, for adoption and implementation

of legislative or administrative measures that may affect indigenous peoples.18 Daniel Barstow Magraw and Lauren Baker, ‘Globalization, communities and human rights:

Community-based property rights and prior informed consent’ (2007) Denver Journal of Interna-tional Law and Policy, 35, pp. 413–428, at p. 423.19 For projects in Latin America, see Schilling-Vacaflor, supra note 8. On the jurisprudence of the

Inter-American Court of Human Rights and the operational policy of the World Bank regarding

development and mining projects on indigenous lands, see Barelli, supra note 8, at pp. 4–5 and

12–15.20 Nagoya Protocol, Articles 6 and 7.21 ILO Convention 169, Articles 6, 15(2), 17(2), 22(3), 27(3) and 28(1); and UNDRIP, Preamble,

Articles 15(2), 17(2), 19, 30(2), 32(2), 36(2) and 38.


5.1.5 Participation and Indigenous Peoples’ CulturalProperty Repatriation Claims

With regard to indigenous peoples’ cultural property repatriation claims, the central

provision that requires indigenous peoples’ participation is UNDRIP Article 11(2).

This Article contains two participatory elements when it states:

States shall provide redress through effective mechanisms, which may include restitution,

developed in conjunction with indigenous peoples, with respect to their cultural, intellec-

tual, religious and spiritual property taken without their free, prior and informed consent orin violation of their laws, traditions and customs. (emphasis added)

The first participatory element refers to cooperation and consultation, which is in

line with NAGPRA, which primarily works with consultation. NAGPRA requires

consultation with the relevant tribes for defining cultural affiliation,22 for determin-

ing the place and manner of delivery of items to be returned,23 for deciding about

the dispossession of unclaimed or intentionally excavated and removed Native

American human remains and objects,24 and for the recommendations and reports

of the Review Committee.25 Cooperation with indigenous peoples has furthermore

become a central pillar in museum practices and codes of ethics.26

In the second part of its wording, UNDRIP Article 11(2) applies the concept of

free, prior and informed consent. In contrast to the principle as it generally applies,

namely to allow or prevent a future activity on indigenous land, the concept as

applied in UNDRIP Article 11(2) takes a retrospective perspective. It seeks to

determine a taking of cultural property by looking at the level of indigenous

peoples’ participation at the time of such taking. Similarly, NAGPRA takes into

account Native American voluntary consent in defining the ‘right of possession’

over Native American cultural property. Only those who have obtained possession

of such property with the voluntary consent of a Native American individual or

group that had authority of alienation may claim a ‘right of possession’.27

5.1.6 Difficulties with Indigenous Peoples’ Participationin Practice

In practice, the application of the principle of participation may raise difficult legal

and practical challenges. They start with the question of who to cooperate with or

22NAGPRA, 25 U.S.C. §§ 3003(b)(A), 3004(b)(B), and 3005(A)(3).23 NAGPRA, 25 U.S.C. § 3005(A)(3).24 NAGPRA, 25 U.S.C. §§ 3002(b) and 3002(c)(2) and (3).25 NAGPRA, 25 U.S.C. § 3006(e).26 See supra Sect. 4.2.2.2.27 NAGPRA, 25 U.S.C. §§ 3001(13).



ask for consent. The finding of the way into and through the organisation and

governance of indigenous groups, tribes, kinships, and peoples can be challenging.

Even the work with representatives of an indigenous group is critical as the concept

of representation as such may be alien to the group.28 Cultural property holdings of

indigenous peoples, in addition, often stem from the past, and time might have

diluted the cultural affiliation to existing groups or tribes. Language, cultural

differences, or distrust could impede the process, and it may be necessary to find

an appropriate way to deal with possibly incompatible interests and expectations

within the group. Also time and costs play an important role in performing partici-

pation processes.29

However, NAGPRA serves as an illustrative example that practical issues with

regard to indigenous peoples’ participation may be resolved. A look into intrastate

regulations on recognition of indigenous peoples, for example the BIA list of

federally recognised Native American tribes in the United States, may bring

clarification about whether a Native American tribe exists under United States

federal law.30 Furthermore, even if not obvious at first sight, it is generally possible

to evaluate self-governance structures of indigenous groups, or involvement in

social networks that link the groups to national and international NGOs, which

generally simplifies the participation processes.31

5.1.7 Conclusions

The principle of indigenous peoples’ participation is a key element of international

human rights standards on behalf of indigenous peoples. It is indispensable for

attaining appropriate and sustainable solutions also with regard to their cultural

property repatriation claims. The principle requires indigenous peoples’ participa-

tion when states or international organisations develop regulations, institutions,

procedures, or any other solution attributed to indigenous peoples’ cultural property

repatriation claims. In addition, indigenous peoples’ participation is required in

concrete situations of dispute over their cultural property. UNDRIP Article 11(2)

suggests that indigenous peoples’ participation should even retrospectively be

considered, back to the time when a cultural object was alienated. Difficulties in

applying the principle in practice may not principally question or undermine the

requirement to let indigenous peoples participate when their interests, namely their

cultural property, is at stake.

28 On this discussion, see Bowrey, supra note 160, at pp. 397–399.29 Barstow Magraw and Baker, supra note 18, at p. 423.30 See supra section ‘In the United States’.31 Coombe, ‘Protecting cultural industries’, supra note 244, at p. 609.


5.2 Consideration of Indigenous Customs and Customary

Law

A second requirement for appropriately resolving indigenous peoples’ cultural

property repatriation claims is the consideration of indigenous customs and cus-

tomary law. Using the words of Coombe, it is necessary to ‘venture beyond the

European categories that constitute the colonial edifice of the law’ and ‘listen to

native claims “in context”’ in order to understand and thus appropriately resolve

them.32

The requirement to consider indigenous peoples’ customs and customary law

forms a key pillar of international collective human rights on behalf of indigenous

peoples. The main sources are the ILO Convention 169 and UNDRIP.33 However,

also the court practice of the Inter-American Court of Human Rights needs men-

tion, as it directly applies indigenous peoples’ customary law in resolving their

claims. In the Case of the Mayagna (Sumo) Awas Tingni Community v Nicaragua,for example, the Court deduced from indigenous peoples’ customs the protection of

their property rights in land.34 In Aleoboetoe v Suriname, it applied indigenous

customary law on family relations and succession in order to determine the

compensations for the massacre of Saramaka villagers.35

32 Rosemary J. Coombe, ‘The properties of culture and the politics of possessing identity: Native

claims in the cultural appropriation controversy’ (1993) Canadian Journal of Law and Jurispru-dence, 6 (2), pp. 249–285, at p. 270.33 The ILO Convention 169 acknowledges in its Preamble that indigenous peoples’ laws, values,

customs and perspectives have been eroded in many parts of the world and defines in Article 1(1)

(a) the existence of customs, traditions or special laws that regulate the status of a community as a

specific feature of the groups to which the Convention applies. See also ILO Convention

169, Articles 2(2)(b), 8(1), 8(2), 9 and 17(3). UNDRIP stipulates the right to belong to an

indigenous community in accordance with the traditions and customs of the community or nation

concerned (Article 9) and the right of indigenous peoples to their cultural and spiritual traditions

and customs (Articles 11 and 12); it requires respect for indigenous customs with regard to

protection of land, resources, and land tenure systems (Articles 26 and 27); it states the right of

indigenous peoples to determine their own identity or membership in accordance with their

customs and traditions (Article 33); and it requires considering indigenous customs in the context

of their institutional structures and juridical systems (Article 34) and in conflict resolution

procedures (Article 40).34 Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas Tingni Community vNicaragua, Ser C No. 79, 31 August 2001; in an abridged version in (2002) Arizona Journal ofInternational& Comparative Law, 19, pp. 395–442. On this case, see Anaya, ‘International human

rights and indigenous peoples: The move toward the multicultural state’, supra note 254, at p. 48;

and Anaya, Indigenous peoples in international law, supra note 36, at pp. 70, 145–148.35 Inter-American Court of Human Rights, Aleoboetoe v Suriname, Ser C No. 15, 10 September

1993, pp. 55–63. On this case, see Gabriella Citroni and Karla I. Q. Osuna, ‘Reparations for

indigenous peoples in the case law of the Inter-American Court of Human Rights’, in Federico

Lenzerini (ed.), Reparations for indigenous peoples: International and comparative perspectives,Oxford: Oxford University Press, 2008, pp. 318–344, at pp. 321–324.


Beyond human rights law, however, the requirement to respect indigenous laws

and customs triggers fundamental challenges. In a state that operates under the rule

of law, lawyers have to apply a top-down approach. The higher up in states’

hierarchy a legal provision was enacted, the more relevant the law. Or the higher

up a court decides a case, the stronger common law arises. Also the private

international law is designed to exclusively refer to national law. From this per-

spective, indigenous laws and customs have either very limited scope of applica-

bility or no formal relevance at all.

That is why many scholars struggle with the question and work on numerous

theories on how to overcome the lack of recognition of indigenous customs in the

international hierarchy of the law. They offer an array of necessary steps and

possible solutions that range from an international, or even transnational, level to

a national and tribal level and include different ruling techniques. The following

will explore some of these theories by categorising them into sui generis systems,

collision norms, and tribal law approaches.

5.2.1 Sui Generis Systems

A sui generis system, as understood in the following, is a regulatory regime that

integrates the relevant customs and customary law of indigenous peoples into

binding law. On an international level, such a sui generis system is most intensely

discussed and worked on by WIPO for traditional cultural expressions (TCE) and

traditional knowledge (TK).36 WIPO thereby explicitly declared the support of

customary practices in specific TK systems as one of the core objectives of a

possible new international instrument on TK and TCE and determined the respect

of customary use and transmission of TK and TCE as a general guiding principle.37

The endeavours are driven by statements such as those from Peter Drahos, who

explained that the recognition of ‘a vast array of different customs and practices that

36 For an overview, see Christoph Antons, ‘Intellectual property rights in indigenous cultural

heritage: Basic concepts and continuing controversies’, in Christoph B. Graber, et al. (eds),

International trade in indigenous cultural heritage: Legal and policy issues, Cheltenham UK

and Northampton MA: Edward Elgar, 2012, pp. 144–174. WIPO, ‘Intellectual property needs and

expectations of traditional knowledge holders. WIPO report on fact-finding missions on intellec-

tual property and traditional knowledge (1998–1999)’, (April 2001), at pp. 57–65.37WIPO, IGC, ‘The protection of traditional cultural expressions/expressions of folklore: Over-

view on policy objectives and core principles’, (WIPO/GRTKF/IC/7/3, 20 August 2004); and

WIPO, IGC, ‘Protection of traditional knowledge: Overview of policy objectives and core

principles’, (WIPO/GRTKF/IC/7/5, 20 August 2004). For revised versions, see WIPO, IGC,

‘The protection of traditional cultural expressions/expressions of folklore: Revised objectives

and principles’, (WIPO/GRTKF/IC/16/4, 22 March 2010); and WIPO, IGC, ‘The protection of

traditional knowledge: Revised objectives and principles’, (WIPO/GRTKF/IC/18/5,

10 January 2011).

5.2 Consideration of Indigenous Customs and Customary Law 165

exist amongst the indigenous peoples of the world’ is the ultimate purpose for any

TK protection.38

However, the development of an international sui generis system causes funda-

mental difficulties. One of such difficulties is what Antony Taubman calls ‘the

paradox to globalise diversity’. How can an international instrument consider the

countless customs and customary law of indigenous peoples with regard to their

cultural heritage? Taubman explains39:

How to give broader, even global meaning and effect to norms and knowledge systems that

are intrinsically and irreducibly local in character, and that rely on the original community

context for their full significance, without eliminating the essential qualities of TK.

A second challenge is that the joining of western legal standards and traditional

forms of law into a sui generis system entails the risk of misinterpreting or misusing

customs. As the research on customary law in British-colonised Africa revealed, the

merging of indigenous law into western legal standards ultimately turned into a

colonising tool. Alleged ‘customary law’ was nothing more than a selection and

assembly of customs that best suited the British administration, thus a colonial

creation under the domination of European ideology.40

Moreover, sui generis systems that are substantive in nature also nail down

norms, beliefs, and societal orders that ought to be able to smoothly develop and

evolve. And finally, authors have criticised the attempts to create sui generissystems, even if arguably integrating indigenous customs and customary law, as

‘top-down’ efforts, outside indigenous peoples’ governance and with little reso-

nance within tribal structures.41

In view of these disadvantages, it seems more appropriate for the international

level to develop sui generis systems that rather focus on general principles and

norms than on attempts to implement customary law.42

38 Peter Drahos, ‘Towards an international framework for the protection of traditional group

knowledge and practice’, UNCTAD-Commonwealth Secretariat Workshop on Elements ofNational Sui Generis Systems for the Preservation, Protection and Promotion of TraditionalKnowledge, Innovations and Practices and Options for an International Framework, Geneva,4–6 February 2004, Presentation note, at p. 26 (on file with the author).39 Antony Taubman, ‘Saving the village: Conserving jurisprudential diversity in the international

protection of traditional knowledge’, in Keith E. Maskus and Jerome Reichman (eds), Interna-tional public goods and transfer of technology under a globalized intellectual property regime,Cambridge: Cambridge University Press, 2005, pp. 521–564, at p. 525.40 Sally E. Merry, ‘Legal pluralism’ (1988) Law& Society Review, 22, pp. 869–896, at pp. 870 and875–876; and Gunther Teubner and Andreas Fischer-Lescano, ‘Cannibalizing epistemes: Will

modern law protect traditional cultural expressions?’, in Christoph B. Graber and Mira Burri-

Nenova (eds), Intellectual property and traditional cultural expressions in a digital environment,Cheltenham UK and Northampton MA: Edward Elgar, 2008, pp. 17–45, at p. 30.41 See, for example, Rebecca Tsosie, ‘International trade in indigenous cultural heritage: An

argument for indigenous governance of cultural property’, in Christoph B. Graber, et al. (eds),


Northampton MA: Edward Elgar, 2012, pp. 221–245, at p. 235 [hereinafter Tsosie, ‘An argument

for indigenous governance of cultural property’].42 Taubman, supra note 39, at pp. 525–526; Scott and Lenzerini, supra note 4, at p. 86.


What may be the outcome of an international sui generis that avoids the flaws ofsubstantiation of indigenous customs can be exemplified by the Nagoya Protocol. In

this Protocol on genetic resources and traditional knowledge associated with genetic

resources, State Parties agreed upon two main substantive issues. The first one is the

access to genetic resources and associated traditional knowledge, for which states

have defined the principle of prior informed consent as the key element.43 The second

one is the obligation to share benefits, which flow from the utilisation of genetic

resources and associated traditional knowledge. An annex to the Protocol that lists

several monetary and non-monetary sharing possibilities specifies that obligation.

For the rest, the focus of the Protocol lies on State Parties’ obligation to implement

the two principles through legislative, administrative, and policy measures by

dealing with the necessary institutional and procedural mechanisms (including the

participation of indigenous peoples). Only at this stage, the Protocol explicitly

requires respect for indigenous customs. In Article 12(1), the Protocol states that

the domestic law of State Parties needs to take into consideration ‘indigenous

and local communities’ customary laws, community protocols and procedures, as

applicable, with respect to traditional knowledge associated with genetic resources’.

In summary, the Nagoya Protocol contains not only two basic principles but also

the obligation of states to consider in their domestic law the indigenous peoples’

customs and customary law.

The Philippines’ Indigenous Peoples’ Rights Act of 1997 can exemplify how

domestic law that considers indigenous customs and customary law may look.44

This Act stipulates that customary laws and practices of indigenous peoples shall be

used in dispute resolution, that customary law is decisive in determining whether

access to indigenous knowledge was obtained with prior informed consent, and that

indigenous laws, traditions, and customs apply in order to evaluate whether indige-

nous cultural property needs to be repatriated. Even here, the legislator abstained

from integrating substantive elements of customs or customary law and applied a

pure referral system.

Provisions referring to indigenous customs and customary law at every regu-

latory level, rather than substantive provisions of customary law, are thus the

central and most important elements of sui generis systems. They thereby intersect

with the following proposals that are based upon collision norms and conflict of law

principles or interfaces.

43 On prior informed consent, see supra Sect. 5.1.4.44 Philippines’ Indigenous Peoples’ Rights Act of 1997, ss 32, 35 and 65. On this Act and other

domestic sui generis systems, see Antony Taubman and Matthias Leistner, ‘Part III. Section 1’, in

Silke von Lewinski (ed.), Indigenous heritage and intellectual property: Genetic resources,traditional knowledge, and folklore, 2nd edn, Alphen aan den Rijn: Kluwer Law International,

2008, pp. 59–179, at pp. 149–151.


5.2.2 Collision Norms and Interfaces

5.2.2.1 Collision Norms for Conflicts of Legal and Social Norms

Another approach to resolving the question of how indigenous customs and cus-

tomary law may find respect in a positivist legal framework is operating with

collision norms. By qualifying indigenous customs and customary law as social

norms, Gunther Teubner and Peter Korth evaluated a conflict of legal and socialnorms. Thereby, the legal norms have absolute priority over social norms, which

‘become only subcutaneously relevant in the process of interpreting legal norms.

This does not mean to deny the substantial influence which social norms exert on

the law. However, if there is a true conflict between legal and social norms, the legal

norms prevail’.45

For generally better integrating social norms into the hierarchy of legal norms,

the scholars suggest the development of new private international law that looks

beyond the national territory and the closest link of the case to such territory.

Instead, they suggest that conflict of law principles should ask for the location of

an aterritorially understood legal relationship within the competing national and

functional legal orders. The questions should be, in which social sector is a legal

relationship located, which normative orders have the strongest structural connec-

tion to that social sector, and what norms have the strongest ‘interests’ in being

applied?46

With regard to the referral to indigenous customs and customary law, however,

the scholars are reluctant.47 They describe how collision rules are a creation of

modern law that would systematically misunderstand legal acts within traditional

cultures if simply referring to customary law.48 What Graber described as not being

able to access the indigenous world views,49 Teubner and Korth call the ‘big

misunderstanding’ by stating: ‘[M]aking reference to local customary law already

means looking at holistically organized forms of society through the lens of

functional differentiation and functional coding’.50

As a solution the scholars offer an approach of ‘productive misunderstanding’ by

suggesting that transnational bodies should create self-restraining rules that refer to

45Gunther Teubner and Peter Korth, ‘Two kinds of legal pluralism: Collision of transnational

regimes in the double fragmentation of world society’, in Margaret Young (ed.), Regime interac-tion in international law: Facing fragmentation, Cambridge etc.: Cambridge University Press,

2012, pp. 23–54, at p. 32.46 Ibid., at pp. 35–36.47 Ibid., at pp. 46–48.48 Ibid., at p. 45. See also Teubner and Fischer-Lescano, supra note 40, at p. 31.49 See supra Sect. 5.1.1.50 Teubner and Korth, supra note 45, at p. 40.


the normative constructs of traditional societies, yet with an ordre public reserva-tion51 and the participation of indigenous peoples in decision-making.52

The outcome of this theory thus resembles the suggested sui generis systems

discussed above, since both ultimately work with referral rules. An important

difference is, however, that the sui generis systems are based upon the law and

depend upon the regulatory authority of states at the national as well as at the

international levels, whereas the collision rules theory works with transnational

bodies and the ordre public.

5.2.2.2 Human Rights Law and Indigenous Customs

Graber developed another approach for resolving the question of the collision

between modern law and indigenous customs by applying a human rights law

perspective. He holds that international human rights, for example Articles 15

CESCR and 27 CCPR, could serve as collision norms if one accepts an institutional

dimension of human rights law. With such dimension, one could balance the

individual or arguably collective rights stipulated in the two provisions with the

institutional goals of human rights law, and elements such as the customary

relationship of indigenous peoples to their cultural heritage could be considered

in the discourse.53

5.2.2.3 Interfaces

Finally, the conflict of states’ law, specifically intellectual property law, with

indigenous peoples’ cultural heritage rules is also an important issue in the Wai

262 Report issued by the Tribunal of Waitangi.54 The Tribunal of Waitangi is a

permanent commission of inquiry that was established in New Zealand in 1975.

The Tribunal is charged with making recommendations on claims brought by Maori

that relate to actions or omissions of the Crown that breach the promises made in the

51 Teubner and Fischer-Lescano, supra note 40, at pp. 29 and 40–41.52 Teubner and Korth, supra note 45, at pp. 48–52.53 Christoph B. Graber, ‘Can modern law safeguard archaic cultural expressions?: Observations

from a legal sociology perspective’, in Christoph Antons (ed.), Traditional knowledge, traditionalcultural expressions, and intellectual property law in the Asia-Pacific region, Alphen aan den Rijnand Frederick MD: Kluwer Law International and Aspen Publishers, 2009, pp. 159–176, at

pp. 173–176; and Christoph B. Graber, ‘Using human rights to tackle fragmentation in the field

of traditional cultural expressions: an institutional approach’, in Christoph B. Graber and Mira

Burri-Nenova (eds), Intellectual property and traditional cultural expressions in a digital envi-ronment, Cheltenham UK and Northampton MA: Edward Elgar, 2008, pp. 98–120.54Waitangi Tribunal, ‘Ko aotearoa tenei: A report into claims concerning New Zealand law and

policy affecting Maori culture and identity’ (2011), available at http://www.waitangitribunal.govt.

nz/reports/summary.asp?reportid¼{BF981901-5B55-441C-A93E-8E84B67B76E9} [hereinafter

Wai 262 Report].





Treaty of Waitangi.55 This Treaty was concluded in 1840 between the British

Crown and the Maori tribes in order to regulate their relationship.56 On 2 July

2011, the Tribunal issued the Wai 262 Report as a response to six Maori tribes

claiming that the New Zealand government failed to acknowledge Maori self-

determination and control over their cultural heritage.57

In this Report, the Waitangi Tribunal suggests an interface system that is

specifically designed for ‘taonga’ works, the Maori word for their treasures or

highly prized possessions or holdings, including cultural heritage.58 At the outset

of the system, taonga and special stewardship relationship of the Maori to taonga

should be protected.59 The Waitangi Tribunal considers such protection as suigeneris in the sense of operating outside the existing national intellectual property

acts or any other law.60 However, in order that the protection works, an interface

with the (intellectual) property law is necessary. Susy Frankel explains that other-

wise the two legal systems ‘will exist in silos’ unable to function in a way that is

conducive to resolving conflicts.61

As the cornerstone of the interface the Waitangi Tribunal recommends to

establish a special commission that has the power to decide system colliding

cases.62 In addition, the Maori should be attributed (1) a general objection right

against derogatory or offensive public use of taonga, and (2) the possibility to

prevent any commercial exploitation of taonga unless and until there has been

consultation and, where found appropriate, consent.63

In contrast to Teubner et al. and Graber, who are dealing with tackling trans- and

international dimensions, the interface system of the Wai 262 Report adheres in the

first instance to state law and territoriality. National law shall be responsible for

55Waitangi Tribunal, ‘About the Tribunal’, available at http://www.waitangitribunal.govt.nz/

about/.56 See Jessica C. Lai, ‘Maori culture in the modern world: Its creation, appropriation and trade’

University of Lucerne, Switzerland, i-call Working Paper No. 2 (2010), at pp. 17–19, available at

http://www.unilu.ch/files/i-call_working_paper02_lai.pdf.57 Susy Frankel, ‘A New Zealand perspective on the protection of matauranga Maori (traditional

knowledge)’, in Christoph B. Graber, et al. (eds), International trade in indigenous culturalheritage: Legal and policy issues, Cheltenham UK and Northampton MA: Edward Elgar, 2012,

pp. 439–459, at pp. 439–441.58 Lai, ‘Maori culture in the modern world: Its creation, appropriation and trade’, supra note 56, at

pp. 18 and 46.59 Jessica Lai, ‘Maori traditional cultural expressions and the Wai 262 report: Looking at the

details’ University of Lucerne, Switzerland, i-call Working Paper No. 2 (2012), at p. 6, available at

http://www.unilu.ch/files/i-call_working_paper_2012_02_jcl_wai-262_and_tces.pdf.60Wai 262 Report, supra note 54, at p. 93.61 Frankel, ‘A New Zealand perspective on the protection of matauranga Maori (traditional

knowledge)’, supra note 57, at p. 450.62Wai 262 Report, supra note 54, at pp. 94–97; Ibid.; and Lai, ‘Maori traditional cultural

expressions and the Wai 262 report: Looking at the details’, supra note 59, at pp. 19–21.63Wai 262 Report, supra note 54, at p. 92. Frankel, ‘A New Zealand perspective on the protection

of matauranga Maori (traditional knowledge)’, supra note 57, at pp. 444–445.


http://www.waitangitribunal.govt.nz/about/



http://www.unilu.ch/files/i-call_working_paper_2012_02_jcl_wai-262_and_tces.pdf

creating the necessary interface. Furthermore, the interface theory, rather than

working with collision norms, suggests combining an institutionalised process

with substantive regulations that grant to indigenous peoples the possibility to

object to and prevent acts that violate their customs and customary law with regard

to their cultural property.

5.2.3 Tribal Law

A valuable contribution to this discussion about indigenous peoples’ customs and

customary law is indigenous peoples’ own endeavours to promote tribal legislation

as an important prerequisite for the respect and application of their customs and

customary law, provided that traditions and oral laws remain important sources and

key elements of such law.64 The talk is of tribal law in a more western or positivist

sense, written and either enacted in tribal codes or developed as common law

through tribal courts. Angela Riley specifically purports this opinion for Native

American tribes in the United States. She contends that such tribal law may

reinforce tribal sovereignty and influence results in the dominant legal system.65

Her persuasive argument finds fertile ground in the United States where tribes enjoy

an unusual degree of inherent self-governing power compared with other settler

nations. Many Native American tribes have enacted law and institutionalised tribal

government and court structures, comparable to modern state structures, through

which they manage and adjudicate tribe-internal affairs and issues that involve

tribal members.66 In the field of cultural heritage, Riley’s study of 193 Native

American tribal websites revealed that in the year 2002, 62 tribes maintained

specific cultural property preservation programmes and 27 had established tribal

codes that addressed, to some extent, the protection of cultural property such as

governance of sacred sites and proper treatment of the dead.67

64 Justin B. Richland and Sarah Deer, Introduction to tribal legal studies, Lanham: AltaMira Press,

2010, at pp. 2 and 9; Frank Pommersheim, ‘Tribal courts: providers of justice and protectors of

sovereignty’ (1995) Judicature, 79, pp. 110–112; andMatthew L. M. Fletcher, ‘Toward a theory of

intertribal and intratribal common law’ (2006) Houston Law Review, 43, pp. 701–741, at

pp. 718–720.65 Angela R. Riley, ‘“Straight stealing”: Towards an indigenous system of cultural property

protection’ (2005) Washington Law Review, 80, pp. 69–164, at pp. 117–129; see also Carole

Goldberg, ‘A United States perspective on the protection of indigenous cultural heritage’, in

Christoph B. Graber, et al. (eds), International trade in indigenous cultural heritage: Legal andpolicy issues, Cheltenham UK and Northampton MA: Edward Elgar, 2012, pp. 331–361, at

pp. 357–359.66 Goldberg, ‘A United States perspective on the protection of indigenous cultural heritage’, supra

note 65, at pp. 352–359.67 Riley, ‘“Straight stealing”: Towards an indigenous system of cultural property protection’, supra

note 65, at pp. 100–101.


Beyond United States territory, however, tribal law is little discussed. In Canada,

for example, the reason for this might be that First Nations lack sufficient self-

determination in the form of autonomy to decide questions such as what cultural

property is integral to their distinctive culture.68 Furthermore, tribal law does, in the

end, not really resolve the difficulty of dealing with indigenous customs. It rather

transfers the question of how to resolve the conflict of legal with social norms to the

question of how to resolve a (vertical) conflict of legal norms.

5.2.4 Conclusions

The distillation of all the theories on respect and application of indigenous peoples’

customs and customary laws seems to recommend that western policymakers

should not try to transfer indigenous peoples’ customs and customary law into

western law. Most theories instead favour or end up with a delegation or referral

system that penetrates several levels of laws, starting at an international, transna-

tional, or even universal level and ending with the requirement to apply indigenous

customs or customary law at a domestic level. The system should stimulate,

influence, and even control the evolving of the local discourse on indigenous

peoples’ customs and customary law without transferring the latter into law.

Whereas nobody seems to disagree that thereby minimal standards of delegation

or referral need to be enacted in binding international law, or that universal human

rights law or an ordre public should guide the process, it is less clear how the local

discourse should take place. The tendency turns towards institutional-procedural

solutions that either consist of or are combined with the participatory elements, as

set forth above.

The theories say little about the question of how customs or customary law

should apply to indigenous peoples’ international cultural property repatriation

claims. UNDRIP requires looking at indigenous customs and customary law by

stating that indigenous peoples shall have the right ‘to practise and revitalize their

cultural traditions and customs’69 and the right ‘to manifest, practise, develop and

teach their spiritual and religious traditions, customs and ceremonies’.70 Further-

more, it refers to indigenous customs in order to define an unlawful taking.71 The

UNIDROIT Convention 1995 specifically considers the traditional or ritual use of

an object by indigenous communities as the trigger point for several exceptional

provisions.72

68 Catherine Bell, ‘Ownership and trade of aboriginal cultural heritage in Canada’, in Christoph

B. Graber, et al. (eds), International trade in indigenous cultural heritage: Legal and policy issues,Cheltenham UK and Northampton MA: Edward Elgar, 2012, pp. 362–395, at p. 391.69 UNDRIP, Article 11(1).70 UNDRIP, Article 12(1).71 UNDRIP, Article 11(2).72 See supra section ‘UNIDROIT Convention 1995’.


However, the provisions of UNDRIP and the UNIDROIT Convention 1995 are

single indications only. When looking at the interface theory of the Waitangi

Tribunal, should it not be possible to draw a more coherent system for indigenous

peoples’ cultural property claims? Thereby, a sui generis system, collision norms,

or any other interface may serve as the methodological backbone, and NAGPRA

may provide the concrete guidelines.

In the end, indigenous customs and customary law should answer two questions.

The first one is the question of how to define an indigenous cultural object that

forms part of the heritage of an indigenous people. The second one is the question of

what rights and obligations should be attached to an object. This may include the

right to use, access, transfer, alienate, or commercialise an object, as well as

stewardship duties, guardianship, or trust obligations. If an object originates from

an indigenous people with an ongoing cultural affiliation to the object, only a look

into indigenous customs and customary law can secure an appropriate way to find

the answers and solutions to the two questions.73

5.3 Repatriation?

Repatriation is the physical transfer of a cultural object from the actual possessor to

the place of origin. It is the reverse action of cultural property ‘takings’. By

containing the element ‘patria’, the term repatriation reflects indigenous peoples’

claims for their cultural property to ‘come home’.74

Not only indigenous peoples but also countries of origin claim the return of

cultural property. All debates of the UN General Assembly,75 as well as the

UNESCO Convention 197076 and the UNIDROIT Convention 1995,77 turn specifi-

cally around these claims. They directly and indirectly influence the answers to

indigenous peoples’ repatriation claims but cannot provide solutions. As will be

outlined in the following, the rationales and arguments turning on repatriations to

73 See Tsosie, ‘An argument for indigenous governance of cultural property’, supra note

41, at p. 244.74 Hannes Hartung, ‘Kunstraub in Krieg und Verfolgung: Die Restitution der Beute- und

Raubkunst im Kollisions- und Volkerrecht’, Universitat Zurich, Dissertation (2004), at p. 58.75 See, for example, UN, General Assembly, ‘Restitution of works of art to countries victims of

expropriation’, Resolutions, (UN Doc. A/RES/3187(XXVIII), 18 December 1973 and UN Doc.

A/RES/3391(XXX), 19 November 1975); and UN, General Assembly, ‘Return or restitution of

cultural property to the countries of origin’, Resolutions, (UN Doc. A/RES/56/97, 14 December

2001, UN Doc. A/RES/58/17, 3 December 2003, and UN Doc. A/RES/61/52, 4 December 2006).

For a summary of debates, see Thomas Fitschen, ‘30 Jahre “Ruckfuhrung von Kulturgut”’ (2004)

Vereinte Nationen, 2, pp. 46–51.76 UNESCO Convention 1970, Articles 7(b)(ii) and 13(b).77 UNIDROIT Convention 1995, Articles 3(1) and Article 5(1).

5.3 Repatriation? 173

indigenous peoples are too different and should lead to a separate and independent

treatment of indigenous peoples’ claims.

5.3.1 Arguments for Repatriation

5.3.1.1 Property and Cultural Property Law Arguments

Many arguments in support of repatriation are legal, apply on a case-by-case basis,

and stem from private property and, partially, public cultural property law. Such

arguments usually make no distinction between repatriation claims in general and

repatriation claims of indigenous peoples, if they are tailored on cultural property at

all. They include (1) deficiency in the act of original or derivative acquisition of an

object, i.e. the object was illegally excavated or the contract on the transfer of the

object was invalid; (2) lack of ownership or legal capacity to transfer good title by

the transferor, i.e. the object was stolen; or (3) Illegal exportation of an object.78

Many arguments for indigenous peoples’ cultural property repatriations, however,

go far beyond private and public cultural property law and legal rationales.

5.3.1.2 Repatriation as Redress for Internationally Wrongful Acts

and Colonisation

The key rationale of indigenous peoples’ cultural property repatriation beyond

(cultural) property law is that it works as a redress for human rights violations79

and breaches of international law.80 It is the redemption of internationally wrongful

acts as directed against indigenous peoples such as discrimination, genocide, and

ethnocide.81 It qualifies as an element of decolonisation and is deemed important to

78 In more detail, see supra section ‘National Cultural Property Law in General’.79 International Law Association (ILA), Committee of the Rights of Indigenous Peoples, ‘Interim

Report’, The Hague Conference, 2010, at pp. 39–43 [hereinafter ILA, Interim Report].80 Francesco Francioni, ‘Reparation for indigenous peoples: Is international law ready to ensure

redress for historical injustices?’, in Federico Lenzerini (ed.), Reparations for indigenous peoples:International and comparative perspectives, Oxford: Oxford University Press, 2008, pp. 27–45, atpp. 35–40.81 Ana F. Vrdoljak, ‘Reparations for cultural loss’, in Federico Lenzerini (ed.), Reparations forindigenous peoples: International and comparative perspectives, Oxford: Oxford University

Press, 2008, pp. 197–228, at pp. 207–209; and Federico Lenzerini, ‘The trail of broken dreams:

The status of indigenous peoples in international law’, in Federico Lenzerini (ed.), Reparations forindigenous peoples: International and comparative perspectives, Oxford: Oxford University

Press, 2008, pp. 73–116, at pp. 77–84 and 103–109 [hereinafter Lenzerini, ‘The trail of broken

dreams’].


reinstate indigenous peoples’ self-determination.82 In this sense, it serves as a

remedy in cases of violations that occurred in the past and also when breaches

continue to take place in the present.83

The rationale is mirrored in international law that provides for reparation rights

on behalf of individuals who became the victims of gross violations of human rights

and humanitarian law.84 Furthermore, human rights law stipulates reparation rights

of indigenous peoples as redress for dispossession of their original land.85 Several

recommendations and decisions of human rights bodies, i.e. the UN Human Rights

Committee, the Inter-American Court of Human Rights, and the African Commis-

sion on Human and Peoples’ Rights,86 have confirmed this right, supported by court

practice at the domestic level in more than a dozen countries.87 The distance of the

rationale from such human rights law and arguments in justification of land

restitution claims of indigenous peoples to cultural property repatriation is small,

since repatriation of indigenous cultural objects is a necessary means to restore the

sacred link between people, land, and cultural heritage.88

82 Catherine Bell, ‘Repatriation of cultural material to First Nations in Canada: Legal and ethical

justifications’, in James A. R. Nafziger and Ann M. Nicgorski (eds), Cultural heritage issues: Thelegacy of conquest, colonization, and commerce, Leiden: M. Nijhoff Publishers, 2009, pp. 81–106,

at p. 87; and Lenzerini, ‘The trail of broken dreams’, supra note 81, at pp. 98–102.83 ILA, Interim Report, supra note 79, at p. 41.84 See, for example, the UN, General Assembly, ‘Basic principles and guidelines on the right to a

remedy and reparation for victims of gross violations of international human rights law and serious

violations of international humanitarian law’, Resolution, (UN Doc. A/RES/60/147, 21 March

2006). Francioni, supra note 80, at p. 44.85 See ILO Convention 169, Article 16; and Draft American Declaration on the Rights of Indige-

nous Peoples, Article XXIV. Organization of the American States (OAS), Committee on Juridical

and Political Affairs, ‘Record of the current status of the Draft American Declaration on the Rights

of Indigenous Peoples’, (OAS Doc. OEA/Ser.K/XVI-GT/DADIN/doc.334/08 rev. 6 corr.

1, 20 March 2011).86 For the holdings of the UN, Human Rights Committee, see supra section ‘The Right to Culture

of Minorities (Article 27 CCPR)’. On the decisions of the Inter-American Court of Human Rights,

see supra Sect. 5.2; and African Commission on Human and Peoples’ Rights, The Social andEconomic Rights Action Center and the Center for Economic and Social Rights v Nigeria,Communication No. 155/96, AHRLR 60, 2001. Important holdings of the African Commission

on Human and Peoples’ Rights are Centre for Minority Rights Development (Kenya) and MinorityRights Group International on behalf of Endorois Welfare Council v Kenya, Communication

No. 276/2003.87 ILA, Interim Report, supra note 79, at p. 42. The Report mentions legal endeavours in

Argentina, Australia, Belize, Botswana, Brazil, Cambodia, Colombia, India, Japan, Malaysia,

New Zealand, South Africa and the United States.88 Ana F. Vrdoljak, International law, museums and the return of cultural objects, Cambridge:

Cambridge University Press, 2006, at pp. 299–300.


5.3.1.3 Repatriation for the Sake of Indigenous peoples’ Cultural

Identity and Diversity

The understanding that cultural property is a cornerstone of collective identity is an

important argument in cultural indigenism, as it is in cultural nationalism.89 Many

indigenous peoples have suffered cultural loss, and repatriation is considered an

essential component of these peoples’ ability to maintain, revitalise, and develop

their collective cultural identity.90 For indigenous peoples, cultural objects serve to

transmit their knowledge, traditions, and culture, as they generally lack written

language. Spoken languages are highly diverse and often moribund or

endangered.91 A member of the Kainai, a First Nation in southern Alberta, Canada,

describes in what way the repatriation of a cultural object influences their cultural

identity in practice92:

When we bring a bundle back we bring much more than an object. . . These things are

teaching us that we had a history . . .. [T]hese are our written history, our curriculum books,

that’s where we learn.

In the case of the Coromenos, who sought repatriation of their sacred textiles,93

Lobo describes the identification effect of such repatriation endeavours on the

Coroma community as follows94:

Thus far, the people of Coroma have succeeded in locating their stolen sacred weavings, in

gaining public sympathy and support, in working with anthropologists and others, and in

identifying legal avenues, instruments, and institutions (both in Bolivia and the United

States) for working toward repatriation. These successes have engendered a sense of

empowerment within Coroma. Many of the younger Coromenos, who increasingly had

been drawn to national rather than community pursuits, have demonstrated a renewed

respect for and interest in the town’s traditional religious activities. And some of Coroma’s

more Eurocentric schoolteachers and evangelical Christians, who had previously decried

Andean traditions and religious practices, have taken a less vocal stance.

89 Lyndel V. Prott and Patrick J. O’Keefe, Law and the cultural heritage, London and Edinburgh:

Butterworths, 1989, at pp. 839–841.90 See, for example, Vrdoljak, International law, museums and the return of cultural objects, supranote 88, at pp. 299–300; and Gii-dahl-guud-sliiaay (Terry-Lynn Williams), ‘Cultural perpetuation:

Repatriation of First Nations cultural heritage’ (1995) U.B.C. Law Review, Special edition,

pp. 183–201, at p. 183.91 See, for example, Patricia H. Huang and Tsung-Huang Hsiao, ‘The brave music of a distant

drum’, in ICOM International Committee for Museology (ed.), ‘Deaccession and return of cultural

heritage: A new global ethics’ (2010) ICOFOM Study Series ISS, 39, pp. 145–154, at p. 151.92 Frank Weaselhed, cited by Ann Davis, ‘Repatriation of indigenous artifacts and beyond: How

the Glenbow Museum is attempting to change colonial attitudes’, in ICOM International Commit-

tee for Museology (ed.), ‘Deaccession and return of cultural heritage: A new global ethics’ (2010)

ICOFOM Study Series ISS, 39, pp. 115–122, at p. 120.93 See supra section ‘The Sacred Textiles of the Coromenos’.94 Susan Lobo, ‘The fabric of life: Repatriating the sacred Coroma textiles’, Cultural SurvivalQuarterly (4 March 2010), available online at http://www.culturalsurvival.org/publications/cul

tural-survival-quarterly/bolivia/fabric-life-repatriating-sacred-coroma-textiles.




For indigenous peoples, the repatriation of their cultural objects brings into focus

their cultural difference, yet in pride, and beyond discrimination or theories of racial

inferiority.95 Repatriation is thereby not just the handing over of material cultural

property, but it also is an opening of a bigger dimension to indigenous peoples in

search of their cultural heritage, their cultural roots, and their collective identity. It is

an important moment of cultural recovery, of regaining cultural confidence, and of

rebuilding dreams, hopes, and perspectives in the future as a separate distinct group.96

The cultural identity argument goes along with the worldwide concern to

promote and protect cultural diversity.97 Measures to re-establish cultural identities

are considered beneficial to the maintenance of cultural diversity. Several interna-

tional conventions establish and further develop this argument. The UNESCO

Convention 2003, for example, describes cultural heritage of communities and

groups as providing them ‘with a sense of identity and continuity, thus promoting

respect for cultural diversity’.98 Cultural diversity, including indigenous peoples’

cultural diversity, is the primary focus of the UNESCO Convention 2005. The

Convention on Biological Diversity explicitly mentions ‘repatriation of informa-

tion’ as of importance to diversity, by obliging Contracting Parties to facilitate the

exchange of information on scientific research, training, and surveying

programmes, as well as indigenous and traditional knowledge.99

5.3.1.4 Repatriation Brings Back Meaning to Objects, Peoples,

and Cultures

Indigenous peoples do not share the western ideal of preserving humanity’s artistic

and archaeological property for the benefit of all mankind.100 A Swinomish Native

American describes this perception as follows101:

95 Francisca Hernandez, ‘Museologıa, restitucion del patrimonio e identidad cultural de los

pueblos’, in ICOM International Committee for Museology (ed.), ‘Deaccession and return of

cultural heritage: A new global ethics’ (2010) ICOFOM Study Series ISS, 39, pp. 135–144, atpp. 136–137.96 Ibid.; and Tereza M. Scheiner, ‘Museums, museology and the restitution of cultural heritage at

the dawn of a new global ethics’, in ICOM International Committee for Museology (ed.),

‘Deaccession and return of cultural heritage: A new global ethics’ (2010) ICOFOM Study SeriesISS, 39, pp. 31–32, at p. 32.97 Christoph B. Graber, ‘The new UNESCO Convention on Cultural Diversity: A counterbalance

to the WTO?’ (2006) Journal of International Economic Law, 9, pp. 553–574, at pp. 553–554.98 UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, 2368 UNTS 1

(adopted on 17 October 2003, entered into force 20 April 2006), Article 2.1. [hereinafter UNESCO

Convention 2003].99 Convention on Biological Diversity, 1760 UNTS 143 (adopted on 5 June 1992, entered into

force 29 December 1993), Article 17.100 Paul M. Bator, ‘An essay on the international trade in art’ (1982) Stanford Law Review, 34,pp. 275–384, at p. 313.101Walter Echo-Hawk, ‘Putting spirits to rest. Sacred tribal artefacts and remains finally coming

home 5 years after law was passed’, Seattle Post Intelligence (11 March 1996), at p. C1. See also


A lot of these things weren’t intended to be preserved forever. They were meant to be put in

the ground, meant to pass on. Instead, they’ve been put on museum shelves, where all the

life is sucked out of them.

Even if indigenous peoples agree in principle with the preservation of their

cultural property in museums, for example, it is essential to them that objects that

contain cultural knowledge are accessible, since objects have actual meaning only

to those who have access to the objects and who can take advantage of the

contribution of the objects to their surroundings.102 Objects may also not be devoid

of cultural context, which would detract from and diminish their value, and present

aboriginal cultures as historical curiosities.103 Most important is the respect for

their ancestors and the (re-)appreciation of indigenous peoples’ individual

practices, rituals, and use of cultural objects. The controlling or owning of specifi-

cally sacred cultural property by non-indigenous people who do not know or are not

allowed to practise the ceremonies or rituals that go along with the object seems

unnatural and unjust to indigenous peoples.104 This generally leads to the argument

that repatriation is the appropriate response to indigenous peoples’ claims for their

cultural property.

5.3.1.5 Repatriation Can Have Valuable Effects on Museum Practices

Museum curators and experts from all over the world recognise that indigenous

peoples’ knowledge and memories about objects add to their scientific findings.105

Indigenous peoples are able to correct or enrich the interpretations of objects from

first-hand experience. When objects are voiced by indigenous people and the

United States, Senate, ‘Providing for the protection of Native American graves and the repatriation

of Native American remains and cultural patrimony’, Report No. 101-473, 1990, at p. 3, referringto witness statements in the Panel for a National Dialogue onMuseum/Native American Relations,

‘Report of the Panel for a National Dialogue onMuseum/Native American Relations’, 28 February

1990, reprinted in (1992) Arizona State Law Journal, 24, pp. 487–500.102 Jeanette Greenfield, The return of cultural treasures, 3rd edn, Cambridge: Cambridge Univer-

sity Press, 2009, at p. 297; and Prott and O’Keefe, Law and the cultural heritage, supra note 89, atpp. 841–842.103 Tamara Kagan, ‘Recovering aboriginal cultural property at common law: A contextual

approach’ (2005) University of Toronto Faculty of Law Review, 63, pp. 1–44, at pp. 6–7.104 See, for example, Gii-dahl-guud-sliiaay (Terry-Lynn Williams), supra note 90, at pp. 185–186.105 See, for example, Wendy Teeter and Hidonee Spoonhunter, supra Sect. 3.2; and Huang and

Hsiao, supra note 91, at pp. 149–150. For an interesting change of attitude see William N. Fenton,

‘The New York State wampum collection: The case for the integrity of cultural treasures’ (1971)

Proceedings of the American Philosophical Society, 115, pp. 437–461; and William N. Fenton,

‘Return of eleven wampum belts to the Six Nations Iroquois Confederacy on Grand River,

Canada’ (1989) Ethnohistory, 36, pp. 392–410.



exhibitions evolve around indigenous narratives, this offers a stimulating perspec-

tive, refreshingly different from the museum’s usual inward-looking, self-

referential viewpoint.106 Many museums struggle to survive on little community

involvement and would benefit from a more enthusiastic community nexus.107

NAGPRA shows that a repatriation regime may also improve inventories and

curating practices and help museums to redefine their role and tasks.108 Even single

repatriations have valuable effects on museums’ practices and responsibilities. The

Glasgow City Council reported, on the international return of a ghost dance shirt

from the Kelvingrove Museum Glasgow to the Lakota, that the City and the

Museum earned substantial cultural and educational benefits. Councillor Elizabeth

Cameron asserted that the Museums made history, rather than just reflecting it.109

For the Glenbow Museum in Calgary, a single repatriation became the stimulus for

a whole new museum practice. After several interventions of Canadian First

Nations, the Museum agreed in 1990 to repatriate a sacred thunder medicine pipe

bundle to a member of the Kainai on a loan basis. The loan agreement stipulated,

inter alia, that the Museum’s curator of ethnology be advised whenever the bundle

was altered. The curator interpreted this agreement as meaning that the loss,

damage, or replacement of objects within the bundle had to be notified. The Kainai,

however, understood the clause as a request to invite the curator to the ceremonies

that the Kainai undertook with the bundle. Due to such invitation, the curator

personally found new access not only to the Kainai objects but also to the commu-

nity from which the objects stemmed. For the Glenbow Museum, this contact was

the starting point for a new Museum policy that led to a lively exchange and turned

the Museum into a steward of living things rather than just a custodian of objects.110

It was repatriation that helped the museum to find a way out of becoming an

organisation of forgetting.111

106 Huang and Hsiao, supra note 91, at pp. 149–150.107 Jennifer Harris, ‘Institutional identity, communities and deaccession’, in ICOM International

Committee for Museology (ed.), ‘Deaccession and return of cultural heritage: A new global ethics’

(2010) ICOFOM Study Series ISS, 39, pp. 123–133, at p. 128.108 James A. R. Nafziger, et al., Cultural law: International, comparative, and indigenous,Cambridge and New York: Cambridge University Press, 2010, at p. 425.109 Norman E. Palmer, ‘Relinquishment and responsibility: The de-accessioning of objects from

museum collections in England and other common law countries’, in Peter Mosimann and Beat

Schonenberger (eds), Kunst & Recht: Referate zur gleichnamigen Veranstaltung der JuristischenFakultat der Universitat Basel vom 17. Juni 2011, Bern: Stampfli, 2011, pp. 13–76, at p. 32.110 Davis, ‘Repatriation of indigenous artifacts and beyond: How the Glenbow Museum is

attempting to change colonial attitudes’, supra note 92, at pp. 118–119.111 Janne Vilkuna, ‘The deaccession of cultural and natural heritage in the traditional museum and

the “great museum”: A Finnish view’, in ICOM International Committee for Museology (ed.),

‘Deaccession and return of cultural heritage: A new global ethics’ (2010) ICOFOM Study SeriesISS, 39, pp. 73–78, at p. 74.


5.3.2 Arguments against Repatriation

5.3.2.1 Legal Arguments

The most important argument against repatriation stems from property law that

protects the new owners of the objects. Validly acquired objects need not be

repatriated. Furthermore, as soon as an object becomes public property or receives

public interest, museum acts and policies or donor agreements prohibit repatriation

or deaccessioning in general and oblige the holder to preserve the object.112

However, the political and practical struggle over future policies on repatriation

claims has triggered many more contra arguments that go beyond legal rationales.

5.3.2.2 Repatriation Thwarts the Protection of Cultural Property

for Mankind

The vision that cultural property should be protected for mankind might be adver-

sarial to repatriation. If an object is well kept, no matter where and by whom, there

is no necessity for repatriation, as its preservation for future generations is

secured.113 Collectors and museums thus claim to rescue cultural objects from the

process of destruction and to provide a home for those objects that might have

become functionless due to the process of modernisation, for example. Museums, in

addition, might withdraw cultural objects from economic circulation in order to

make them accessible to the public.114 This is the background to the Declaration on

the Importance and Value of Universal Museums, which emphasises that museums

serve not only the citizens of one nation ‘but the people of every nation’.115 The

Declaration requires that museums should have the responsibility to decide about

repatriation claims as ‘agents in the development of culture, whose mission is to

foster knowledge by a continuous process of reinterpretation’. Each object would

contribute to that process. To narrow the focus of museums would be a disservice to

all visitors.

In contrast, when cultural objects are repatriated to indigenous peoples, they

become exposed to their practices, rituals, and use of the objects that may lead to

their decay. This is true for repatriated human remains and funerary objects, which

112 See, in more detail, supra section ‘Non-interference with Other Rights or Obligations’.113 James Cuno,Who owns antiquity? Museums and the battle over our ancient heritage, PrincetonNJ etc.: Princeton University Press, 2008, at pp. 120–145.114 For a critical analysis of this argument, see Roger Fayet, ‘Out of neverland: Towards a

consequentialist ethics of alienation’, in ICOM International Committee for Museology (ed.),

‘Deaccession and return of cultural heritage: A new global ethics’ (2010) ICOFOM Study SeriesISS, 39, pp. 51–59, at p. 53.115 See supra section ‘The Declaration on the Importance and Value of Universal Museums’; and

Peter-Klaus Schuster, ‘The Treasures of World Culture in the Public Museum’ (2004) ICOMNews, 1, at p. 4.


indigenous peoples generally rebury. Indigenous peoples’ protocols may further

require the placement of repatriated objects on an isolated island, in caves, or on

mountaintops to decompose and become part of the earth. Or the destruction of

cultural objects becomes part of a ceremony.116 Indigenous peoples often view such

processes not as destruction but as the return of the ancestors or gods, for example,

represented or contained in the objects, to the spirit world.117 Indigenous peoples

may also put repatriated cultural objects back in use, which has the consequence

that objects materially suffer, become altered, or otherwise lose value for science

and trade. This happened, for example, with the very old and beautiful Pectol

shields found in the ground on Utah state territory. After their repatriation to the

Navajo, they repainted the shields.118

5.3.2.3 Repatriation Infringes upon Museum Responsibilities

and Endangers Collection histories

According to the original concept, a museum is an institution that collects,

preserves, and studies cultural objects. Repatriation of objects stands at odds with

this concept and implies the violation of fiduciary duties of loyalty vis-a-vis the

donors and the community they serve and the breach of the duty to care by the

repatriating museum.119 Repatriations may also contravene the educational func-

tion of a museum and threaten intellectual freedom.120 Likewise, repatriations may

change museology fashions and downgrade the importance of the object and

undermine museum functions in general.121

Furthermore, a museum collection may itself form part of cultural history by

way of its historical motives and historical events.122 Repatriation may interfere

with a collection in a way that deploys this historical context of the collection. This

rationale against repatriation entered Russian law, when the Russian Federation in

1996 implemented a provision on the principle of the indivisibility of museum

collections into the statute on Museum Funds.123 The Russian principle determines

the process of collecting cultural property as a cultural practice with its own cultural

116 Kagan, supra note 103, at p. 20.117 Gii-dahl-guud-sliiaay (Terry-Lynn Williams), supra note 90, at p. 188.118 Neal Busk, Head of the E. P. and Dorothy Hickman Pectol Family Organization, ‘Pectol

Shields’, Email, (6 March 2012), on file with the author. On the Pectol Shield case, see supra

Sect. 3.1.1.119 Patty Gerstenblith, ‘Acquisition and deacquisition of museum collections and the fiduciary

obligations of museums to the public: Symposium’, (2003) Cardozo Journal of International andComparative Law, 11, pp. 409–465, at pp. 420–425.120 For a collection of such arguments, see Harris, supra note 107, at p. 126.121 Ibid., at p. 130.122 Harris, supra note 107, at p. 128.123 Anna Leshchenko, ‘The principle of the indivisibility of museum collections as part of

museological theory and Russian reality’, in ICOM International Committee for Museology



history, which usually starts with the collecting endeavours and the live story of a

private collector and is later pursued by a museum.124 Legally it states that an

artefact, once acquired by a museum, becomes of museum quality and loses its

utilitarian function. As a consequence, the principle determines that a museum

artefact that was once transferred into a museological context cannot turn back into

its primary context.125

5.3.2.4 Repatriation Is a Loss of Wealth and Triggers Unjustified

Claims

A further argument against repatriation is that cultural property co-determines a

person’s or society’s wealth. Their market value might be of importance to any

holder of objects, including museums, since commercialisation and economisation

have caught up with cultural institutions.126 The repatriation of an object without

consideration is thus ultimately a financial loss.

In the same breath, repatriation is often considered to be the start of a redistribu-

tion process that empties the world’s great museums.127 The British Museum

expressed this view in the negotiations with the national Museum of New Zealand

about the repatriations of Maori cultural property. The former feared that

repatriations of Maori objects would set a precedent that would not only stimulate

further claims but also require them to respond in the same way with other

repatriations, including the famous case of the Elgin Marbles claimed by Greece.128

5.3.2.5 Repatriation Causes Conflicts Between Indigenous Peoples

The rich experience with NAGPRA shows that repatriations confront not only the

western possessor of indigenous cultural property with major challenges but also

the indigenous peoples themselves. Tribes might not have a traditional ritual

suitable for reburying the repatriated human remains of ancestors. Conflicts may

arise as to the proper holding of repatriated objects, or tribal members may abuse

(ed.), ‘Deaccession and return of cultural heritage: A new global ethics’ (2010) ICOFOM StudySeries ISS, 39, pp. 61–71, at p. 62.124 Ibid., at p. 63.125 Ibid., at p. 62.126 Francois Mairesse, ‘La question de l’alienation: Cinq pistes de reflexion’, in ICOM Interna-

tional Committee for Museology (ed.), ‘Deaccession and return of cultural heritage: A new global

ethics’ (2010) ICOFOM Study Series ISS, 39, pp. 19–24, at p. 22; and Harris, supra note

107, at p. 130.127 David Rudenstine, ‘Symposium: IV. Cultural property: The hard question of repatriation: The

rightness and utility of voluntary repatriation’ (2001) Cardozo Art & Entertainment Law Journal,19, pp. 69–104, at p. 76.128Wai 262 Report, supra note 54, at p. 502.


repatriated objects to strengthen their political influence.129 Indigenous peoples

may even entirely reject repatriation for practical, and also spiritual, reasons, such

as the Zuni Indians, who fear that the return of human remains would rekindle the

grief and sorrow that they have now taken steps to counter.130 The Wupamos

Indians refused the return of a kat’sina mask, saying it would be crying and

would have tears in its eyes. Members of the Native American Omaha tribe were

upset over the return of a white buffalo robe, fearing its power would be misused in

ceremonies. Christianised indigenous peoples may hinder repatriations by

complaining that ‘sacred objects’ are actually pagan relics and the tools of devil

worship.131 In other cases, repatriation may revive old rivalries between indigenous

tribes. This was, for example, the case when the Pectol Shields were offered for

repatriation. Not only the Navajo Nation but also the Ute and Paiute tribes and the

Southern Ute tribes presented cultural affiliation evidence and claimed to be the

rightful owners.132 An argument against repatriation is thus that it may not clearly

be attributable and may therefore be detrimental to indigenous peoples by causing

conflicts within or between their communities.

5.3.3 A Right to Repatriation and Beyond

Not only human rights law but also most pro repatriation arguments outlined above

identify a fundamental human need of indigenous peoples for repatriation of their

cultural property or at least a fundamental benefit from their cultural property in

their lives and survival as a culturally distinct community.

In contrast, the arguments contra repatriation derive from a high comfort level

with an intrinsic indifference to the persons and arguments of the claimant. They

unveil a resistance to acknowledge the social changes that indigenous peoples have

been through in the last few decades, especially in countries such as the United

States, Canada, Australia, and New Zealand. Collections seem to have kept their

colonial connotations and patterns of domination over romanticised ‘savages’.

In order to catch up with the ongoing international developments and re-enter an

appropriate international exchange with indigenous cultural property, cultural

institutions and collections should be allowed and urged to open up to post-colonial

practices and break with the idea of exclusive ownership. It is necessary to

129Michael F. Brown and Margaret M. Bruchac, ‘NAGPRA from the middle distance: Legal

puzzles and unintended consequences’, in John H. Merryman (ed.), Imperialism, art and restitu-tion, New York: Cambridge University Press, 2006, pp. 193–217, at pp. 208–211.130 Statement of James Nason, Chairman of the Repatriation Committee at Seattle’s Burke

Museum. Walter Echo-Hawk, supra note 101.131 Ibid.132 Debora L. Threedy, ‘Claiming the shields: Law, anthropology, and the role of storytelling in a

NAGPRA repatriation case study’ (2009) Journal of Land, Resources & Environmental Law,29, pp. 91–119, at p. 115.


acknowledge that the focus of cultural property has shifted ‘(1) from monuments to

people; (2) from objects to functions; and thus (3) from preservation per se to

purposeful preservation, sustainable use, and development’.133 Repatriations can,

from this perspective, work as a trigger point for a political, economic, and

structural modernising process of cultural institutions134 from which not only the

parties involved but ultimately also sustainable trade activities with tribal art can

benefit.

As an impetus to activate the overdue modernisation of indigenous cultural

property collections specifically in Europe, a legal instrument such as an interna-

tional agreement, which reflects a human right to repatriation, use, or access of

indigenous peoples, seems necessary. Such a right should not be a civil law property

right, upon which civil cultural property litigation could be based, but rather it

should be defined as a binding international human rights entitlement, beyond

international customary law,135 that is not at the mercy of changing governmental

policies and programmes.136

The right alone, however, will not suffice to truly and appropriately advance the

issue. It rather needs an additional obligation of states to implement the right,

possibly by a reference system that allows delegation of considerable discretion

to the parties directly involved, at the same time requiring respect for the principles

of participation of indigenous peoples and the application of indigenous peoples’

customs and customary law. International law could concede detailed regulations to

the states, and the states could concede to their executing institutions the task of

defining the criteria and procedures for repatriation, access, or use of indigenous

objects and how conflicts with indigenous peoples will ultimately be resolved.

States should thereby proactively support the institutions in truly fulfilling these

obligations by providing the necessary resources and financing.

Finally, experience will provide the guidelines as to how to appropriately

approach indigenous peoples’ repatriation claims in practice. The claims of indige-

nous peoples for the repatriation of human remains, for example, are in general

ethically so delicate that physical transfer for reburial is usually the only adequate

solution. A compromise could be that scientific tests may be performed in coopera-

tion with the descendants of the indigenous group before repatriation.137 With

regard to other indigenous cultural property, their use and governance in a way

133 Tolina Loulanski, ‘Revising the concept for cultural heritage: The argument for a functional

approach’ (2006) International Journal of Cultural Property, 13, pp. 207–233, at p. 207.134 See the many statements in ICOM International Committee for Museology (ed.), ‘Deaccession

and return of cultural heritage: A new global ethics’ (2010) ICOFOM Study Series ISS, 39.135 On the question of whether an international customary right to repatriation exists, see supra

Sect. 4.1.3.136 Asbjørn Eide and Allan Rosas, ‘Economic, social and cultural rights: A universal challenge’, in

Asbjørn Eide, et al. (eds), Economic, social and cultural rights: A textbook, 2nd edn, Dordrecht

etc.: Martinus Nijhoff Publishers, 2001, pp. 3–7, at p. 6.137 This was, for example, the case when the British Natural History Museum repatriated human

remains to an aboriginal community in Tasmania. Marie Cornu and Marc-Andre Renold, ‘New



that respects indigenous peoples’ views and sufficient access to the objects may be

sufficient in order to respond to their needs.138 Scholars have developed

encompassing schemes on repatriation and alternatives in order to help find appro-

priate solutions for indigenous peoples’ cultural property repatriation claims.139

Such schemes include legal constructs such as loans, joint ownership, or trust

relationships instead of transfer of ownership. An example is provide by the

Glenbow Museum when it started to repatriate objects on loan or the British

Museum when it returned the Kwakwaka’wakw mask to the U’mista Cultural

Societyon on a long-term loan basis.140 The Museum of Cultures Basel (‘Museum

der Kulturen Basel’) in Switzerland resolved the difficulties with a collection of

objects from the Waura Indians in Brazil by concluding a loan agreement followed

by a donation in 2008 to the Museum of Archaeology and Ethnology in Sao Paulo

(‘Museu de Arqueologia e Etnologia’). A Brazilian ethnologist consigned the

collection to the Swiss museum, but the export restrictions were so strict, and the

request of the Waura to maintain access to the collection was so convincing that the

museum decided to leave the objects in Brazil. The negotiation process lasted over

several years and became an important opening for the museums to come into

contact with each other and the Waura. It formed the starting point for fruitful

cooperation such as a common exhibition in the Waura in Xingu Park, as well as in

Sao Paulo and Basel.141

Another possibility in fulfilling the right to repatriation, use, or access is the

creation of a copy from the original cultural object. The Museum of Ethnography

(‘Etnografiska Museet’) in Stockholm, for example, repatriated the g’psgolox totem

developments in the restitution of cultural property: Alternative means of dispute resolution’

(2010) International Journal of Cultural Property, 17, pp. 1–31, at p. 19.138 See, for example, Sonja Luehrmann, ‘Beyond repatriation: Collaborations between museums

and Alaska native communities’, in Erich Kasten (ed.), Properties of culture – culture as property:Pathways to reform in post-Soviet Siberia, Berlin: Dietrich Reimer Verlag, 2004, pp. 217–229.139Marc-Andre Renold, ‘Le droit de l’art et des biens culturels en Suisse: Questions choisies’

(2010) Zeitschrift fur Schweizerisches Recht, 129, pp. 139–219, at pp. 200–210; and Cornu and

Renold, supra note 137, at pp. 18–23. On alternative solutions in cultural property disputes, see

also Markus Muller-Chen, ‘Die Crux mit dem Eigentum an Kunst’ (2003) Aktuelle JuristischePraxis (AJP), pp. 1267–1279, at pp. 1277–1279.140 See supra section ‘The Potlatch Objects of the Kwakwaka’wakw’. On cultural property loans in

general, see Norman E. Palmer, ‘Art loans’ (1995) U.B.C. Law Review, Special edition,

pp. 285–305.141 Switzerland, Canton of Basel-Stadt, Department of Presidential Affairs, Cultural Office,

‘Museum der Kulturen unterzeichnet Schenkungsvertrag mit Zukunftspotential: Sammlung mit

Objekten der Waura-Indianer verbleibt in Brasilien’ (22 September 2009), available at http://

www.medienmitteilungen.bs.ch/showmm.htm?url¼2009-09-22-pd-003; Alexander Brust, ‘Don’t

be afraid of the Indians! A case study of alternative solutions for restitution claims of Brazilian

native people and state institutions’, Basel Institute on Governance Conference on Governance ofCultural Property: Preservation and Recovery, Basel, 29–30 September 2009, Presentation

available at http://www.baselgovernance.org/events/past-events/combating-the-financing-of-ter

rorism-copy-1/governance-of-cultural-protery-presentations-and-papers/; and Beat

Schonenberger, ‘Don’t be afraid of the Indians! Case study part II: Analysis’, ibid.


http://www.medienmitteilungen.bs.ch/showmm.htm?url=2009-09-22-pd-003



http://www.baselgovernance.org/events/past-events/combating-the-financing-of-terrorism-copy-1/governance-of-cultural-protery-p...


pole to the Haisla, a First Nation living in British Columbia, subject to the Haisla’s

creation of a replica. As a consequence, the carvers spent 2 months carving in front

of visitors to the Museum ‘sharing with them their pride in their culture and their

repatriation story’.142 Furthermore, cultural cooperation on a regular basis has

proved to generate mutual gain for all parties involved.143 An international cooper-

ation and exhibition exchange by European museums is described by Steven

Engelsman, the director of the Vienna Museum of Ethnology (‘Museum fur

Volkerkunde’), as ‘Sharing Collections’ without defining, however, the role of

the peoples from whom the museum objects originate.144 Finally, modern technol-

ogy has opened up a new array of possibilities to cooperate, share, access, and

repatriate cultural property even across wide geographical distances. Examples are

the Mukurtu Archive and the Plateau Peoples’ Portal,145 the Reciprocal Research

Network (RRN) co-developed by the MOA Museum of Anthropology at the

University of British Columbia in collaboration with three Northwest Coast First

Nations,146 and the project to virtually repatriate the MacFarlane collection of the

Smithsonian Institution’s National Museum of Natural History to the Inuvialiuit

people living in the North of the Canadian Northwest Territories.147

The suggested solution for repatriations and beyond requires a certain, possibly

temporary opening of collections and is relatively invasive and far-reaching. How-

ever, a clear regulation can ultimately not only help to prevent excessive

142 Stacey R. Jessiman, ‘The repatriation of the g’psgolox totem pole: A study of its context,

process, and outcome’ (2011) International Journal of Cultural Property, 18, pp. 365–391,at p. 375.143 In this sense, the Glenbow Museum in Calgary fosters today an ongoing process of exchange

rather than simple repatriations. See supra Sect. 5.3.1.5. For an investigation into ways in which

museums and anthropologists are forging new relationships with communities, see Moira

G. Simpson, Making representations: Museums in the post-colonial era, London and New York:

Routledge, 2001.144 Steven Engelsman, interview by Julia Kospach, ‘Das Ende des Dornroschenschlafs’, A4Magazin fur Aussereuropaische Kunst und Kultur (April 2012), pp. 75–77, at p. 76.145Mukurtu, available at http://www.mukurtu.org/. See Kimberly Christen, ‘Opening archives:

Respectful repatriation’ (2011) The American Archivist, 74, pp. 185–210.146 Reciprocal Research Network, ‘First Nations items from the Northwest Coast’, available at

http://www.rrnpilot.org/. See Susan Rowley, et al., ‘Building an on-line research community: The

Reciprocal Research Network’, in J. Trant and D. Bearman (eds), Museums and the Web 2010:Proceedings, Toronto: Archives & Museum Informatics (31 March 2010), available at http://

www.archimuse.com/mw2010/papers/rowley/rowley.html.147 George Nicholas, et al., ‘Beyond the tangible: Repatriation of cultural heritage,

bioarchaeological data, and intellectual property’ (2010) Anthropology News, 51, pp. 11–12, atp. 12. Kate Hennessy, et al., ‘Virtual repatriation and the Application Programming Interface:

From the Smithsonian Institution’s MacFarlane Collection to “Inuvialuit Living History”’, in

N. Proctor and R. Cherry (eds), Museums and the Web 2012: Proceedings, San Diego: Archives

& Museum Informatics (12 April 2012), available at http://www.museumsandtheweb.com/

mw2012/papers/virtual_repatriation_and_the_application_progr.


http://www.mukurtu.org/

http://www.rrnpilot.org/

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negotiations, court litigation, and negative publicity.148 In view of the often huge

differences in possession, wealth, and power between the involved parties, a right to

repatriation, use or access is also indispensable to ensure that the involved parties

practise mutual appreciation and negotiate at the same level. It is one possible way

of benefit sharing that helps to foster a culturally diverse world.

148 This was, for example the case, when the Lubicon First Nation organised a boycott and the

Mohawk First Nation sued the Glenbow-Alberta Institute during the 1988 Winter Olympic Games

in Calgary. Alberta immediately reacted with the passing of the Alberta First Nations Sacred

Ceremonial Objects Repatriation Act, RSA 2000, c. F-14. Catherine Bell, et al., ‘Protection:

Reflections on the Kainai experience’, in Catherine E. Bell and Val Napoleon (eds), First Nationscultural heritage and law: Case studies, voices, and perspectives, Law and society series,

Vancouver BC: U.B.C. Press, 2008, pp. 203–257, at p. 238.


Chapter 6

Summarising Conclusion

In a process of cultural recollection, many indigenous peoples are striving today to

restore their tribal self-determination and claim redress for past wrongs. As a part of

this development, they are claiming the repatriation of their cultural property, much

of which had been lost under duress or due to the demise of traditional ways of life,

societal structures, and beliefs. The claims are directed against the actual possessors

of indigenous cultural property such as museums, collections, traders, and private

collectors worldwide and challenge existing national and international laws.

In a pioneering attempt to regulate national repatriation disputes with their

indigenous peoples, the Federal Government of the United States enacted the

Native American Graves Protection and Repatriation Act of 1990 (NAGPRA).

The law responded to Native American cultural property claims by obliging

federally funded agencies and museums to make an inventory of their collections,

to notify the present-day Indian tribes about holdings of Native American objects,

and to repatriate upon request the objects to such tribes. In addition, NAGPRA

contains a revolutionary new concept of law that takes into consideration the

cultural affiliation of present-day Indian tribes to their objects in determining

property rights.

Also, on an international level, several human rights bodies such as the Interna-

tional Labour Organization (ILO) and the UN Commission on Human Rights have

reacted to indigenous peoples’ claims. They have not only increasingly invited

representatives of indigenous peoples to participate in international decision-

making processes if these touched upon their fields of interest; they have also put

in place international binding and non-binding human rights instruments that aim,

inter alia, for the protection of indigenous peoples’ cultural life, practices, heritage,and property. An important milestone in this development was the adoption of the

UN Declaration on the Rights of Indigenous Peoples (UNDRIP) by the UN General

Assembly in 2007. This Declaration defines on behalf of indigenous peoples a right

to repatriation of human remains, a right to use and control of ceremonial objects,

and a right to practise and revitalise their cultural traditions and customs. Even

though technically non-binding, UNDRIP provisions influence current international

lawmaking and shape the interpretation of pre-existing binding collective human


189

rights provisions as contained, for example, in the International Bill of Human

Rights. As a consequence, the UN Committee on Economic, Social and Cultural

Rights explicitly cited UNDRIP when it declared in 2009 that the right to take part

in cultural life as provided for in the International Covenant on Economic, Social

and Cultural Rights (CESCR) contains a right of indigenous peoples to control and

access their cultural heritage. All these developments speak of a new acknowledge-

ment of indigenous peoples by the international community of states and of a novel

cultural indigenism emerging in international law.

However, the implementation of such international cultural indigenism on

national and local levels—with the exception of NAGPRA—has remained scarce.

In Europe especially, indigenous peoples’ cultural property repatriation claims

perpetually face almost insurmountable hurdles of substantive property and inter-

national procedural law. Ownership of cultural property is highly protected, and

specific national cultural property law provides little in the way of correctives. The

existing international cultural property conventions such as the UNESCO Conven-

tion 1970 and the UNIDROIT Convention 1995, limited by the principles of

territoriality and non-retroactivity, barely address the particular interests of indige-

nous peoples and remain subject to acceptance and implementation by Member

States.

This leaves the transnational community that works with indigenous cultural

property to cope with most difficult ethical, legal, and ultimately public policy

questions. If repatriations of indigenous cultural property are conducted, they are

generally based upon self-regulation, in legal uncertainty and on a case-by-case

basis with an often unsatisfactory outcome.

With a view to improving this situation, the evaluations in this work have led to

the following theses:

1. International cultural property conventions and national laws should better take

into account the cultural indigenism formulated in international human rights

law. Such regulations should allow and support museums, collections, and

possibly other possessors of indigenous cultural objects to foster cultural

exchange and cooperation with indigenous communities, including repatriations

if appropriate. Thereby, a legal cascade system with minimal standards at

international and national levels and referral provision to local practice and

customary law would be preferable.

2. The regulations need to take into account the following requirements: (1) respect

for differences in world views, (2) treatment of indigenous cultural objects as a

separate cultural property category, and (3) implementation of nation states’

recognition of indigenous communities as separate legal entities.

3. NAGPRA’s concept of cultural affiliation should be better acknowledged as a

valuable example of how new cultural property regulations at international and

national levels could be complemented.

4. Transnational law of the cultural property community such as the Code of Ethics

of Museums issued by the International Council of Museums (ICOM) is paving

the way for ethically appropriate regulations for indigenous peoples’ cultural

190 6 Summarising Conclusion

property repatriation claims. Such norms cannot, however, substitute for binding

law as they lack, inter alia, the capability to amend pre-existing legal regulations

that are contradictory or inappropriate.

5. Procedural activities contribute to fill the legal lacuna in dealing with indigenous

peoples’ cultural property claims. Their contribution to encompassing

resolutions is limited, however, because of their case-by-case approach. In

view of the number and size of the many indigenous cultural property

collections, single case solutions remain a drop in the ocean.

6. Any steps towards appropriately resolving indigenous peoples’ cultural property

repatriation claims, whether by the enactment of law, the application of transna-

tional law, or the use of procedures, should implement the following elements:

(1) dialogue with and participation of the affected parties, including the indige-

nous communities in every case; (2) consideration of all relevant norms with

particular respect to indigenous customs; and (3) a right of indigenous peoples to

cultural property repatriation, use, or access.

6 Summarising Conclusion 191

Table of Legislation

Belgium

Private International Law Code (‘Code de droit international prive’), 16 July 2004.

Canada

Alberta First Nations Sacred Ceremonial Objects Repatriation Act, RSA 2000,

c. F-14.

An Act to Amend and Consolidate the Laws Respecting Indians, SC 1880, c. 28.

An Act Further to Amend The Indian Act of 1880, SC 1884, c. 27, s. 3.

An Act to Amend the Indian Act, SC 1918, c. 26.

An Act Respecting Indians, SC 1951, c. 29, s. 123(2).

Cultural Property Export and Import Act, RSC 1985, c. C-51.

European Union

Council Regulation 2001/44/EC of 22 December 2000 on Jurisdiction and the

Recognition and Enforcement of Judgments in Civil and Commercial Matters/

Brussels I Regulation (OJ L 12, 16 January 2001).

Council Directive 93/7/EEC of 15 March 1993 on the Return of Cultural Objects

Unlawfully Removed from the Territory of a Member State (OJ L 74/74,

27 March 1993).

K. Kuprecht, Indigenous Peoples’ Cultural Property Claims,DOI 10.1007/978-3-319-01655-9, © Springer International Publishing Switzerland 2014

193

France

Act No. 2002-323 of 6 March 2002 concerning the Restitution of the Mortal

Remains of Saartjie Baartman from France to South Africa (‘Loi relative a la

restitution par la France de la depouille mortelle de Saartjie Baartman a

l’Afrique du Sud’).

Act No. 2010-501 of 18 May 2010 aiming at Authorising the Restitution of Maori

Heads from France to New Zealand and on the Management of Collections (‘Loi

visant a autoriser la restitution par la France des tetes maories a la Nouvelle-

Zelande et relatives a la gestion des collections’).

Civil Code (‘Code civile’), 21 March 1804.

Heritage Code (‘Code du patrimoine’), 20 February 2004.

Germany

Act to Implement the UNESCO Convention of 14 November 1970 on the Means of

Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership

of Cultural Property and to implement the Council Directive 93/7/EEC of

15 March 1993 on the Return of Cultural Objects Unlawfully Removed from

the Territory of a Member State (‘Gesetz zur Ausfuhrung des UNESCO-

Ubereinkommens vom 14. November 1970 uber Maßnahmen zum Verbot und

zur Verhutung der rechtswidrigen Einfuhr, Ausfuhr und Ubereignung von

Kulturgut und zur Umsetzung der Richtlinie 93/7/EWG des Rates vom 15.

Marz 1993 uber die Ruckgabe von unrechtmaßig aus dem Hoheitsgebiet eines

Mitgliedstaats verbrachten Kulturgutern’), 18 May 2007 (BGBl. I p. 757,

No. 21, 2547).

Italy

Italian Civil Code (‘Codice civile’), Regio Decreto 16 March 1942 (n. 262).

Philippines

Philippines’ Indigenous Peoples’ Rights Act of 1997.

194 Table of Legislation

Switzerland

Agreement between the Swiss Federal Council and the Government of the Republic of

Peru about the Collaboration in Preventing Illicit Trade in Archaeological Objects

(‘Vereinbarung zwischen dem Schweizerischen Bundesrat und der Regierung der

Republik Peru uber die Zusammenarbeit zur Verhutung des rechtswidrigen

Handels mit archaologischen Gutern’) (adopted on 28 December 2006).

Canton Lucerne Protection of Cultural Monuments Act (‘Gesetz uber den Schutz

der Kulturdenkmaler’), 8 March 1960.

Civil Code (‘Schweizerisches Zivilgesetzbuch’), 10 December 1907 (SR 210).

Decree of the Federal Council of 10 December 1945 on Claims for Return of

Objects Taken in Territories Occupied in Times of War (‘Bundesratsbeschluss

vom 10. Dezember 1945 betreffend die Klagen auf Ruckgabe in kriegsbesetzten

Gebieten weggenommener Vermogenswerte’), 1945 (AS 61).

Federal Act on the International Transfer of Cultural Property (‘Bundesgesetz uber

den internationalen Kulturgutertransfer’), 20 June 2003 (SR 44.1).

Federal Private International Law Act (‘Bundesgesetz uber das Internationale

Privatrecht’), 18 December 1987 (SR 291).

Federal Regulations on the International Transfer of Cultural Property

(‘Verordnung uber den internationalen Kulturgutertransfer’), 13 April 2005

(SR 444.11).

United Kingdom

Dealing in Cultural Objects (Offences) Act 2003.

Human Tissue Act 2004.

United States

Archaeological Resources Protection Act of 1979, 16 U.S.C. §§ 470bb–470mm.

Constitution of the United States, Amendment 5 (passed 25 September 1791,

ratified 15 December 1971).

Convention on Cultural Property Implementation Act of 1983, 19 U.S.C. §§

2601-2613.

Indian Appropriation Act of 3 March 1871, 25 U.S.C. § 71.

Indian Citizenship Act of 1924, 8 U.S.C. § 1401(b).

Indian Reorganization Act of 1934, 25 U.S.C. §§ 461–479.

Indian Self-Determination and Education Assistance Act of 1975,

25 U.S.C. § 450a.

National Museum of the American Indian Act of 1989, 20 U.S.C. §§ 80q–15.

Table of Legislation 195

Native American Graves Protection and Repatriation Act of 1990, 25 U.S.C.

§§ 3001–3013 and 18 U.S.C. § 1170.

Native American Graves Protection and Repatriation Regulations, 43 C.F.R. § 10.

New York State Indian Law of 1899.

196 Table of Legislation

Table of International Conventions

and Declarations

1919 Covenant of the League of Nations (adopted on 29 April 1919, entered into

force 10 January 1920).

African Charter on Human and Peoples’ Rights, 21 ILM 58 (adopted on 27 June

1981, entered into force 21 October 1986).

American Convention on Human Rights, OAS Treaty Series No. 36; 1144 UNTS

123 (adopted on 22 November 1969, entered into force 18 July 1978); reprinted

in Basic Documents Pertaining to Human Rights in the Inter-American System,

OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992).

Convention on Biological Diversity. 1760 UNTS 143 (adopted on 5 June 1992,

entered into force 29 December 1993).

Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS

277 (adopted on 9 December 1948, entered into force 12 January 1951).

New York Convention on the Recognition and Enforcement of Foreign Arbitral

Awards, 330 UNTS 38 (adopted on 10 June 1958, entered into force

7 June 1959).

European Convention on Human Rights, CETS No. 005 (adopted on 4 November

1950, entered into force 3 September 1953).

European Convention on Human Rights, Protocol 1, CETS No. 009 (adopted on

20 March 1952, entered into force 18 May 1954).

European Convention on Mutual Assistance in Criminal Matters, 472 UNTS

185 (adopted on 20 April 1959, entered into force 12 June 1962).

ILO Convention No. 107 Concerning the Protection and Integration of Indigenous

and Other Tribal and Semi-Tribal Populations in Independent Countries,

328 UNTS 24 (adopted on 26 June 1957, entered into force 2 June 1959).

ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent

Countries, 1659 UNTS 383 (adopted on 27 June 1989, entered into force

5 September 1991).

Lugano Convention on Jurisdiction and the Enforcement of Judgements in Civil

and Commercial Matters, 28 ILM 620 (adopted on 16 September 1988, entered

into force 1 January 1992, revised on 30 October 2007).


197

Mataatua Declaration on Cultural and Intellectual Property Rights (Whakatana,

12–18 June 1993).

Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable

Sharing of Benefits Arising from their Utilization to the Convention on

Biological Diversity (UN Doc. UNEP/CBD/COP/DEC/X/1) (adopted on

29 October 2010).

Second Protocol to the Hague Convention of 1954 for the Protection of Cultural

Property in the Event of Armed Conflict, 2253 UNTS 212 (adopted on 26 March

1999, entered into force 9 March 2004).

The Hague Convention II with Respect to the Laws and Customs of War on Land:

Regulations Concerning the Laws and Customs of War on Land, 32 Stat. 1803,

2 Martens Nouveau Recueil (2d) 949 (adopted on 29 July 1899, entered into

force 4 September 1900).

The Hague Convention IV respecting the Laws and Customs of War on Land,

36 Stat. 2277, 1 Bevans 631 (adopted on 18 October 1907, entered into force

26 January 1910).

The Hague Convention for the Protection of Cultural Property in the Event of

Armed Conflict, 249 UNTS 240 (adopted on 14 May 1954, entered into force

7 August 1956).

The Hague Convention relating to Civil Procedure, 286 UNTS 267 (adopted on

1 March 1954, entered into force 12 April 1957).

UN Charter, 1 UNTS XVI (adopted on 26 June 1945, entered into force

24 October 1945).

UN Universal Declaration of Human Rights, General Assembly Resolution 217A

(III) (UN Doc. A/810) (adopted on 10 December 1948).

UN International Convention on the Elimination of All Forms of Racial Discrimi-

nation, 660 UNTS 195 (adopted on 21 December 1965, entered into force

4 January 1969).

UN International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3;

6 ILM 360 (adopted on 16 December 1966, entered into force 3 January 1976).

UN International Covenant on Civil and Political Rights, 999 UNTS 171 and 1057

UNTS 407 (adopted on 16 December 1966, entered into force 23 March 1976).

UN Declaration on the Granting of Independence to Colonial Countries and

Peoples, General Assembly Resolution (UN Doc. A/RES/1514 (XV)) (adopted

on 14 December 1960).

UNMillennium Declaration, General Assembly Resolution (UN Doc. A/RES/55/2)

(adopted on 18 September 2000).

UN Declaration on the Rights of Indigenous Peoples, General Assembly Resolution

61/295 (UN Doc. A/61/L.67 and Add.1) (adopted on 13 September 2007).

UNESCO Constitution, 4 UNTS 275 (adopted on 16 November 1945, entered into

force 4 November 1946).

UNESCO Convention on the Means of Prohibiting and Preventing the Illicit

Import, Export and Transfer of Ownership of Cultural Property, 823 UNTS

231 (adopted on 14 November 1970, entered into force 24 April 1972).

198 Table of International Conventions and Declarations

UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage,

2368 UNTS 1 (adopted on 17 October 2003, entered into force 20 April 2006).

UNESCO Convention on the Protection and Promotion of the Diversity of Cultural

Expressions, 2440 UNTS 311 (adopted on 20 October 2005, entered into force

18 March 2007).

UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, 34 ILM

1322 (adopted on 24 June 1995, entered into force 1 July 1998).

UNESCO Mexico City Declaration on Cultural Policies (UNESCO Doc.

CLT/MD/1) (adopted on 6 August 1982).

Table of International Conventions and Declarations 199

Table of Cases

Canada

Reference Re Secession of Quebec (1998) 161 DLR (4th) 385 (Supreme Court).

France

Association Survival International France v S.A.R.L. Neret-Minet Tessier Sarrou(2013) No. RG 13/52880 BF/No. 1 (Tribunal de Grande Instance de Paris).

Cne Rouen v Prefet de la region Haute-Normandie (2008) 44 JCP II 10181 (CAA

Douai, plen.).

Jean Bonnin v Villes de Macon et de Lyon (17 June 1896) (Cour de cassation).

Prefet Seine-Maritime (2007) 5 JCP Adm. 2021 (TA Rouen).

Germany

Nigerian masks case (22 June 1972) BGH II ZR 113/70, 59 BGHZ

82 (Bundesgerichtshof).

Zivilrechtliche Anspruche eines Erben eines judischen Eigentumers einer durchdas Reichspropagandaministerium des Dritten Reiches weggenommenenPlakatsammlung auf Ruckgabe (28 January 2010) 8 U 56/09 (Kammergericht

Berlin).


201

United Kingdom

Attorney-General of New Zealand v Ortiz (1982) QBD 349, (1982) 2 WLR

10, (1982) 3 All ER 432 (Queens Bench Division); (1984) AC 1, (1982)

3 WLR 570, (1982) 3 All ER 454 (Court of Appeal); (1984) AC 41, (1984)

2 WLR 809, (1983) 2 All ER 93 (House of Lords).

Government of the Islamic Republic of Iran v The Barakat Galleries Ltd (2007)

EWCA Civ 1374, Case No. A2/2007/0902/QBENF, A2/2007/0902(A)/FC3

(Court of Appeal (Civil Division)).

Switzerland

India v Credit Agricole Indosuez (Switzerland) SA (8 April 2005) BGE 131 III

418 (Federal Supreme Court).

United States

Bonnichsen v United States (2002) 217 F Supp 2d 1116, 1152-55 (D Or); (2004)

367 F 3d (9th Cir).

Cherokee Nation v State of Georgia (1831) 5 Peters 178, Marshall J.

Estate of Tasunke Witko v G. Heileman Brewing Co. et al. (1996) 23 Indian L Rep

6106 (Rosebud Sioux Sup Ct).

Hornell Brewing Co. v Rosebud Sioux Tribal Court (1998) 133 F3d 1087 (8th Cir).Johnson v M’Intosh (1823) 21 US 543 (8 Wheat), Marshall J.

Montoya v United States (1901) 180 US 261.

Morton v Mancari (1974) 417 US 535.

Onondaga Nation v Thatcher (1901) 29 Misc 428, 61 NYS, 1027, 169 NY Rep 584.

Rice v Cayetano (2000) 528 US 495.

United States v Hollinshead (1974) 495 F 2d 1154 (9th Cir).

United States v McClain (1977) 545 F 2d 988 (5th Cir); (1979) 593 F 2d 658

(5th Cir).

United States v Kramer (1999) 168 F 3d 1196 (CA10, NM).

United States v Pre-Columbian Artifacts and the Republic of Guatemala (1993)

845 F Supp 544 (ND Ill).

United States v Rogers (1846) 45 US (4 How) 567.

United States v Schultz (2002) 178 F Supp 2d 445 (SDNY); (2003) 333 F 3d

393 (2d Cir), (2004) 157 L Ed 2d 891.

202 Table of Cases

Arbitration

Altmann v Republic of Austria (15 January 2006), Arbitral Award, available online

at http://www.adele.at/Schiedsspruch/Schiedsspruch.pdf;

International

African Commission on Human and Peoples’ Rights, The Social and EconomicRights Action Center and the Center for Economic and Social Rights v Nigeria,Communication No. 155/96, AHRLR 60, 2001.

African Commission on Human and Peoples’ Rights, Centre for Minority RightsDevelopment (Kenya) and Minority Rights Group International on behalf ofEndorois Welfare Council v Kenya, Communication No. 276/2003.

Inter-American Court of Human Rights, Aleoboetoe v Suriname, Ser C

No. 15, 10 September 1993.

Inter-American Court of Human Rights, Case of the Mayagna (Sumo) Awas TingniCommunity v Nicaragua, Ser C No. 79, 31 August 2001.

UN Human Rights Committee, Ivan Kitok v Sweden, Communication

No. 197/1985, Suppl. No. 40, UN Doc. A/43/40, views adopted on 27 July 1988.

UN Human Rights Committee, Bernard Ominayak, Chief of the Lubicon Lake Bandv Canada, Communication No. 167/1984, Suppl No. 40, UN Doc. A/38/40,

views adopted on 26 March 1990.

Table of Cases 203

http://www.adele.at/Schiedsspruch/Schiedsspruch.pdf

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Index

A

Abelam, 41

Aboriginal titles, 25

Aborigines, 9, 27, 52, 149, 153

Access, 68, 76, 84, 85, 91, 97, 99, 144, 167,

168, 173, 178, 185, 187, 190

Activists, 2, 26, 77, 125, 133, 147

Adverse possession, 102

Africa, 18, 166

commission, 175

Alaska, 2, 35, 37

Alliances, 134

Alternative dispute resolution, 92, 139

Alutiiq, 2

American Indians, 33, 81

American languages, 34

Ancestors, 32, 40, 41, 111, 133, 178,

181, 182

Ancestral territories, 32

Anthropologists, 6, 13, 50, 57, 176

Apology, 26, 27

Applicable law, 17, 18, 92, 111, 133

Approved assimilation, 6

Arbitration, 132, 142–144, 156

Archaeological sites, 7, 104

Artefacts, 76Artists, 40, 85, 147

Art market, 6, 7, 126

Art trader, 134

Asia, 153

Asian, 154

Assimilation, 10, 25–27, 61

Association, 68, 108, 126, 128, 129, 133, 134,

151, 155

Auction, 6, 111, 121, 134, 154, 155

Australia, 1, 9, 18, 26, 76, 130, 149, 183

Australian government, 149, 150

Australian Government Policy on Indigenous

Repatriation, 149

Austria, 19

museum of ethnology Vienna, 186

B

Belgium, 119

private international law code, 120

Beneficiaries, 69, 70

Benefit of all mankind, 177

Benefit-sharing, 187

BIA, 34, 37, 136

Bill of Human Rights, 190

Binding law, 17, 22, 124, 165, 191

Blackfoot, 153

Blood, 34, 35, 38

Bolivia, 16, 27, 150, 176

Bolivian, 11, 16

Brazil, 148

museum of archaeology and ethnology in

sao paulo (‘museu de arqueologia e

etnologia’), 185

Brazilian, 185

British museum, 15, 16, 107, 116, 130, 153,

182, 185

Burial objects, 1

C

Canada, 16, 18, 23, 26, 51, 52, 76, 88, 96, 105,

129, 161, 172, 176, 183

cultural property export and import act

(CPEIA ), 105

Glenbow Museum, 134, 153, 179


233

Canada (cont.)MOA museum of anthropology, 130, 186

royal ontario museum, 15

victoria memorial museum, 15

Canadian, 11, 14, 15, 179

Capacity to bring an action, 29, 38, 132, 133

Capitalism, 46, 52–54

Caribbean, 114

Casino industry, 27

Cayuga, 12

Ceremonial items, 10

Ceremonial objects, 41, 44, 57, 76, 77, 91,

114, 189

Ceremonies, 76

Ceremony, 2, 12, 14, 15, 27, 41, 54, 67, 78,

173, 178, 179, 183

Chancay, 114

Cherokee, 36, 136

Chickasaw, 136

Chiefs, 9, 132, 136

Choctaw, 136

Christianisation, 10, 11, 183

Civil law, 100, 103, 133, 135, 137, 184

Civil rights, 60

Claimant, 95, 102, 132, 135, 138, 139,

148, 183

Code(s), 17, 19, 49, 100, 125, 162, 171

Code of Ethics, 46

Collecting, 5, 10, 12, 152, 153

Collection(s), 5, 9, 10, 17, 39, 46, 60, 61, 63,

65–67, 73, 85, 92, 104, 107, 109, 110,

115, 117, 127, 130, 150, 153, 154, 156,

181–182, 184–186, 189–191

Collection histories, 181–182

Collective human rights, 75, 97, 164, 189

Collective property, 42–43, 52

Collective rights, 19, 43, 75, 88, 132, 133, 169

Collectivism, 51

Collector(s), 14, 15, 17, 106, 111, 112, 120,

134, 143, 154, 155, 180, 181

Collision norms, 165, 167–169

Colonies, 19

Colonisation, 2, 21, 24, 25, 32, 38, 54, 93, 109,

110, 137, 174–175

Columbia, 114

Commercialisation, 182

Committee of the Rights of Indigenous

Peoples of the International Law

Association, 32

Commoditisation, 42

Common land, 43

Common law, 33, 100, 137, 165, 171

Communally important cultural objects, 95

Communities, 5, 16, 21, 23, 29, 30, 32, 33, 49,

53, 62, 84, 91, 97, 101, 103, 106, 110,

114, 126–128, 131, 148, 150, 153, 154,

159, 161, 167, 183, 190, 191

Compensation, 78, 89, 94, 120, 123

Competing repatriation requests, 67

Conflict of law, 20, 118–120, 167, 168

Congressional resolution, 27

Congress of Vienna, 24

Consultation, 61, 152, 160–162, 170

Context, 7, 11, 22, 80, 125, 127, 130, 138, 164,

166, 178, 181

Control, 16, 52, 54, 61, 63, 64, 73, 76, 77, 81,

84, 85, 101, 105, 170, 172

Convention, 27

Convention 1970, 40

Convention on Biological Diversity, 160, 177

Cook Islands, 1

Cooperation, 33, 60, 62, 67, 127, 128, 134, 147,

148, 153, 156, 160–161, 185, 186, 190

Coromenos, 16–17, 150, 176

Costs, 135, 137–139, 156, 163

Country of origin, 113

Court(s), 20, 25, 34, 49, 58, 92, 102, 114, 120,

121, 132, 133, 135–137, 144

Court fees, 139

Court litigation, 92, 132, 135–139, 142, 144,

156, 187

Covenant of the League of Nations, 25

Criminal complaint, 138

Criminal law, 112

Cultural affiliation, 55–59, 62–64, 66, 68–72,

119, 140, 162, 163, 173, 183, 189

Cultural diplomacy, 92, 132, 145–149, 151,

153, 154, 156

Cultural diversity, 23, 26, 67, 98, 99, 147, 177

Cultural exchange, 145, 190

Cultural expressions, 84, 98, 99

Cultural heritage, 40–42, 83–85, 90–92, 97,

103, 104, 119, 120, 123, 138, 143, 160,

166, 169–171, 175, 177, 190

Cultural heritage of mankind, 52

Cultural identity, 176–177

Cultural indigenism, 3, 91, 92, 190

Cultural institutions, 17, 19, 85, 125, 134, 145,

146, 157, 182, 183

Cultural internationalism, 90, 129

Culturally sensitive material, 127, 130

Cultural nationalism, 90, 105, 176

Cultural patrimony, 10, 44, 45, 55, 61, 63, 64,

67, 71, 107

Cultural property exchange, 152, 157

Cultural property for mankind, 180

Cultural property law, 3, 17–19, 42, 64, 71, 90,

92–106, 108, 115–117, 120, 122, 124,

157, 174

Cultural value, 42

234 Index

Custom(s), 17, 21, 28, 48, 53, 54, 57, 63, 76,

119, 128, 132, 144, 150, 157, 162,

164–173, 184, 189, 191

Customary laws, 17, 21, 32, 49, 62, 97, 98, 109,

132, 144, 157, 164–173, 184, 190

Cutural affiliation, 73

D

Dances, 11, 12

Darwinism, 7

Deaccessioning, 107, 117, 118, 180

Decision-making, 62, 84, 131, 136, 160,

168, 189

Declaration on the Granting of Independence to

Colonial Countries and Peoples, 25

Declaration on the Rights of Indigenous

Peoples, 19, 28, 76, 84, 189

Decolonisation, 25, 79, 174

Defendant, 71, 96, 101, 132, 135, 149

Democratisation, 159

Development

cultural, 80, 82, 181, 184

economic, 53, 54, 72

indigenous, 99

individual, 51

social, 127

sustainable, 148

tribal, 137

Dialogue, 98, 110, 128, 148, 156, 159, 191

Discovered, 25, 63, 64, 70, 119

Discovery doctrine, 25

Discrimination, 30, 32, 60, 76, 174, 177

Dispute resolution by commissions and

committees, 140

Disputes, 23, 25, 27, 48, 58, 91, 132, 135,

140–143, 145, 156, 189

Domestic dependent nation, 36

Ducation, 146

E

Education(al), 98, 179, 181

Elders, 132

Elgin marbles, 182

Enforceability, 100, 131

England, 18, 81, 92, 102, 116, 121–123, 129,

141, 149, 152

Estoppel, 102

Ethics, 7, 112, 125, 128, 132, 144, 151, 153,

157, 190

Europe, 5, 19, 24, 92, 100, 116, 118, 120, 138,

184, 190

Excavated/excavations, 2, 4, 8, 55, 63, 64, 70,

96, 108, 119, 146, 162, 174

Exhibition(s), 13, 61, 153, 178

Expert(s), 23, 56, 57, 84, 93–96, 104, 117, 121,

122, 127, 135, 150, 156, 178, 185

Expert Mechanism on the Rights of Indigenous

Peoples, 29

Exported, 8

Extractive industries, 159

F

Fact-finding, 139

Family, 10, 26, 43, 51, 62, 117, 136,

138, 164

Fiduciary duties, 67, 181

Fills museums, 6

Financial grants, 67, 115

Financial resources, 154, 156

First International Conference on the Cultural

and Intellectual Property Rights of

Indigenous Peoples, 1

First Nation(s), 14, 27, 105, 106, 129, 134, 172,

176, 186

Formalities, 156

Fowler Museum, 66

France, 18, 92, 100, 102, 103, 108–112, 116,

119, 129, 134, 149, 150

civil code, 109–110

cour de cassation, 103

Heritage Code, 109, 110, 116, 118

museum quai branly (musee du quai

branly), 110

Noumea Agreement, 109

Rouen city Museum for Natural History,

Ethnography and Prehistory, 109

Free, prior and informed consent (FPIC), 76,

160–162

Free trade agreement, 113

Full-blood, 9

Funerary objects, 44, 55–57, 64, 71, 77

G

Gallery, 107, 122, 134

General assembly, 28

Generations, 30, 47, 86

Genetic resources, 161, 167

Gentes, 135Germany, 81, 102, 129, 150

Ghost dance, 11–12, 133, 151, 152, 179

Ghost dancers, 11

Glasgow Museums, 12

Index 235

Globalisation, 21, 26, 98

Good faith (bona fide), 64, 88, 102–104, 116,120, 123, 159

Good title, 7

Government, 2, 10, 18, 24, 26, 72, 81, 115, 134,

136, 145, 148–152

G’psgolox totem pole, 185

Greece, 46, 102, 182

Guinea, 41

H

Hague Convention for the Protection of

Cultural Property in the Event of Armed

Conflict, 93

Haida, 66

Haisla, 186

Health, 52, 65, 67

Hearsay, 56, 57

Heirs, 134, 141

Hopi, 65, 111, 112, 134, 154

Hottentote woman Saartije Baartman, 110,

111, 149

Huari, 114

Human remain(s), 1, 8–10, 36, 44, 46, 55, 56,

58, 60, 64, 65, 72, 76, 77, 89, 91, 107,

109, 110, 114, 116, 127, 130, 144, 145,

149, 153, 162, 182, 184

Human Rights Council, 28, 29

Human rights law, 3, 17, 19, 29, 61, 62,

75–156, 165, 169, 172, 183, 190

I

ICOM Code of Ethics, 126–128, 153

ICOM-WIPO Mediation Rules and

Procedures, 144

Identity, 30, 56, 67, 86, 95, 99, 109, 111, 140,

148, 176, 177

ILA, 32, 86

ILO, 20, 27–30, 78–79, 87, 158, 161, 164

ILO Convention 107, 78

ILO Convention No.169, 28, 31, 78–79, 158,

161, 164

Immunity, 138

Import, 8, 94, 114

Importation, 113, 150

Inalienability, 104, 112

India, 1, 18, 31, 121

Indian Act, 15

Indian tribe, 36, 45

Indigenous dispute resolution mechanisms, 137

Indigenous justice, 137

Individual development, 51–52

Individualism, 51

Individual rights, 51, 62, 75, 132

Indonesia, 31

Institute of International Law, 119

Institutions, 1, 6, 21, 28, 30, 65, 85, 92, 107,

109, 132, 134, 142, 148, 150, 156, 159,

163, 184

Intangible, 41, 42, 45

Intangible cultural property, 97–99

Intellectual property law, 169

Inter-American Court of Human Rights, 87,

164, 175

Interfaces, 169–171

Interface system, 170

Intermediaries, 16, 150, 156

International Council of Museums (ICOM),

126–128, 144, 153, 190

International Covenant on Civil and Political

Rights (CCPR), 79–85, 169, 190

International customary law, 29, 85–91, 184

International customary right, 86–88

International Decade of the World’s

Indigenous People, 19, 28

International Labour Organization (ILO), 189

International law, 17, 19, 23, 27–29, 36,

43, 79, 80, 86, 88, 92, 123, 172,

174, 175, 189

International organisation(s), 17, 20, 29, 39,

125, 135, 142, 146, 148, 159, 163

International resolutions, 125

Inventory(ies), 1, 61, 98, 115, 189

Iran, 122

Civil Code, 122

Iroquois, 12–14, 81, 134

Italy, 102, 104, 129

J

Japan, 1

Judges, 136, 137

Jurisdiction, 34, 35, 50, 72, 103, 121, 124, 133,

135, 138, 142, 146

K

Kainai, 176, 179

Kamaeku, 23

kat’sina mask(s), 111, 134, 154, 183

Kelvingrove Museum, 12

Kennewick man, 58

kinship(s), 47, 50, 54, 56, 135, 136, 163

Kwakwaka’wakw, 14–16, 133, 185

236 Index

L

Label, 139

Lakota, 11–12, 133, 138, 179

Land, 7, 23–25, 40, 43, 47, 54, 61, 64, 68, 87,

101, 105, 161, 162, 164, 175

Language(s), 13, 32, 40, 52, 53, 64, 78, 79, 82,

142, 144, 147, 176

Lapse of time, 103

Leaders, 10, 44, 61, 136, 140

Legal aid, 113, 138

Legal pluralism, 17–18, 21, 22

Lex originis, 119, 120Lex rei sitae, 112, 118, 119

Lineal descendants, 64, 140

Loans, 13, 16, 146, 179, 185

Local community, 134

Localised states, 21

London Natural History Museum (NHM), 145

M

Maasai, 23

Maori, 1, 9, 109, 113, 140, 149, 153, 169, 170,

182

Martial law, 86, 93

Media, 5, 26

Mediation, 132, 140, 141, 144, 145, 156

Mediation agreements, 144

Mexico, 57, 117, 151

Minimal standards, 172, 190

Minimum standards, 126

Minorities, 79, 82, 83, 85

Modernisation /modernising, 22, 180, 184

Mohawk, 12, 187

Mokomokai, 9, 109, 110, 149

Montezuma:crown of, 151

Morality, 144

Mukurtu Archive, 186

Muscogee, 136

Museum, 1, 2, 5, 6, 12, 16, 19, 58, 59, 61, 62,

66, 68, 71, 73, 92, 106, 107, 109, 110,

115, 116, 125–131, 134, 140, 145, 146,

152–156, 178–180, 182, 185, 186, 189,

190

policies, 107, 129

practices, 88, 162, 178–179

N

Nagoya Protocol, 160, 161, 167

NAGPRA

Review Committee, 140, 162

National law, 3, 16, 17, 84, 92–124, 130,

131, 165

National Museum of the American Indian

(NMAI), 5, 15, 60, 129, 153

Native American(s), 3, 11, 16, 33, 34, 36, 38,

53, 55–73, 81, 83, 88, 105, 119, 136,

137, 154, 155

Native American Graves Protection and

Repatriation Act (NAGPRA), 35

Native Hawaiian organisation(s), 56, 59,

61–63, 65, 140

Natural law, 7, 24, 43

Navajo, 57, 65, 137, 154, 181, 183

Peacemaker Court, 137

Peacemaking Division, 137

Nazca, 114

Negotiations, 13, 90, 96, 136, 141, 147, 160,

182, 187

Nemo plus iuris, 101, 102The Netherlands, 81

Restitution Commission, 141

New Caledonia, 109

New Zealand, 1, 18, 23, 76, 109, 113, 120, 121,

130, 140, 149, 161, 169, 183

Historic Articles Act, 121

National Museum Te Papa Tongarewa,

109, 130, 149, 153

NGO, 17, 26, 97, 112, 125, 133, 134,

160, 163

Nicaragua, 164

Non-binding, 28, 29, 68, 85, 91, 92, 141,

147, 189

Non-governmental organisations, 17

Non-retroactivity, 88, 94, 123–124, 190

North America, 16, 24, 117

Not-for-profit organisations, 125, 145–146

Notice, 61

NPFII, 148

Nuxalk, 106

O

Oceania, 18

Office of Federal Acknowledgement

(OFA), 36

Omaha, 183

Oneida, 12

Onondaga, 12–14, 134

Ordre public, 120, 122, 168Ownership, 8, 16, 25, 54, 55, 57, 63, 64, 68, 70,

96, 100–104, 106, 111, 112, 118, 119,

122, 134, 174, 183, 185

Index 237

P

Paiute, 6, 183

Panama, 1

Papua New Guinea, 23

Participation, 11, 27, 65, 80, 97–99, 128, 131,

157–163, 167, 168, 184, 191

Partnerships, 67, 127, 148

Pawnee, 9

Peace, 86, 93

Pectol Shields, 57, 65, 181, 183

Peru, 1, 114

Philippines, 1

Philippines’ Indigenous Peoples’ Rights Act,

167

Pluralism, 21

Possession, 1, 7, 14, 15, 54, 56, 57, 63, 76, 100,

102, 118, 121, 122, 131, 162, 187

Possessor, 2, 56, 70, 95, 101, 111, 120, 138,

173, 182

Post-colonial, 21, 183

Pothunters, 7

Potlatch, 14–16, 106, 133

Pre-colonial, 21, 30, 32, 64

Pre-Columbian, 6

Pre-Columbian heritage, 60, 155

Preferential treatment, 69

Preservation, 6, 47, 66, 84, 114, 147, 171,

180, 184

Principle of laches, 102

Private international law, 17, 20, 112, 118–120,

124, 133, 165, 168

Private law, 20, 95, 116, 133, 159

Private parties, 70–72, 95, 154–156

Private property, 56, 57, 62, 64, 70, 73, 89,

100–102, 104, 116–117, 124, 137, 174

Procedures, 38, 69, 92, 131–159, 163, 167,

184, 191

Property, 8, 92, 103, 115

Property law, 18, 42, 55, 62–64, 73, 96,

100–106, 116–117, 124, 137, 170,

174, 180

Protocols, 66, 167

Provenance, 8, 9, 12

Public awareness, 77, 133

Public law, 20, 118, 120–123

Public policy, 112, 159, 190

Public property, 104, 180

Pueblo Indians, 23

R

Reburial, 67, 184

Redistribution, 68–70, 182

Reference system, 184

Referral rules, 169

Referral system, 118, 167, 172

Rei vindicatio, 101, 102Relationship(s), 22, 32, 47, 56, 58, 64, 69, 72,

81, 85, 88, 101, 129, 143, 150, 153,

168–170, 185

Relocation, 6, 161

Repatriation campaigns, 133

Repatriation programme, 153

Representation, 123, 132, 150, 163

Representatives, 1, 90, 132, 133, 146, 156, 159,

163, 189

Reservations, 11, 33, 136

Res extra commercium, 63, 71, 103, 104Respecting Indians, 15

Revitalisation, 53

Right of possession, 62, 71, 162

Right to culture, 82, 85

Right to repatriation, use or access,

157, 184

Right to take part in cultural, 79, 83–85, 190

Rituals, 41, 52, 56, 178

Ritual use, 44, 96, 173

Roman law, 100, 101, 103

Russia, 18, 129, 181

S

Saami, 23

Sacred, 2, 7–10, 16–17, 40, 41, 44–46,

50, 55, 57, 62, 63, 67, 71, 89, 95, 103,

104, 111, 112, 127, 153, 171, 175,

176, 178,

179, 183

objects, 44, 45

textiles, 17, 150

Scandinavia, 23

Science, 39, 40, 45, 147, 181

Scientific tests, 184

Scientists, 2, 5, 7, 21, 26, 58, 67, 73, 85,

133, 158

Scotland

Glasgow Museums, 133, 151

Kelvingrove Museum Glasgow, 179

Second Protocol for the Protection of Cultural

Property in the Event of Armed

Conflict, 93

Seizure, 108, 113, 138

Self-determination, 29, 36, 51, 59, 79–82, 85,

90, 170, 172, 189

Self-governance, 163

Self-government, 135

238 Index

Self-identification, 31, 32

Self-regulation, 46, 92, 125, 126, 130, 190

Self-restraining rules, 168

Seminole, 136

Seneca, 12, 14, 136

Settlement, 9, 144

Sharing, 11, 46, 127, 156, 167, 186

Sharing Collections, 186

Sioux, 135, 138

Smithsonian Institution, 2, 5, 12, 60, 186

Social networks, 163

Social norms, 21, 168–169, 172

Soft law, 76

Sotheby’s, 120, 154, 155

Soto states, 48

South Africa, 111, 149

South America, 18

Sovereignty, 24, 25, 50–51, 80, 81, 87, 90, 118,

160, 171

Spain, 102, 129

Special Rapporteur, 28

Specific context, 35

States, 18, 19, 21, 22, 24, 25, 33, 37, 38, 50, 60,

64, 68, 70, 76–80, 83, 85–92, 94, 95, 97,

98, 100, 104, 113, 115, 116, 118, 119,

123, 124, 127, 142, 146, 148, 151, 156,

158, 160, 162, 163, 165, 167, 169, 182,

184, 190

Statute of limitations, 102

Stewards, 62, 63

Stewardship, 170, 173

Stolen, 8, 16, 94–96, 102, 104, 112, 116, 121,

174, 176

Subjectivity, 29, 86

Sui generis system(s), 119, 165–167, 169

Supreme Court, 36

Suriname, 1, 164

Survival, 2, 6, 27, 52, 73, 183

Sweden

museum of Ethnography (‘Etnografiska

Museet’), 185

Swiss Civil Code, 22

Switzerland, 18, 92, 96, 100, 102, 112–115,

117, 123, 185

bilateral cultural property agreements,

114

Federal Act on the International Transfer of

Cultural Property (CPTA), 112, 113,

115, 117

Federal Government, 115, 123

Federal Supreme Court, 96, 121, 123

Museum of Cultures Basel (‘Museum der

Kulturen Basel’), 185

T

Taiwan

National Taiwan Museum, 153

Takings, 7–8, 11, 16, 61, 63, 103, 112, 173

Taonga, 149, 170

Tasmania, 9, 145

Tasmanian Aboriginal Centre, 133, 145

Tatar, 23

Terra nullius, 24

Territoriality, 72, 106, 118–124, 190

Theft, 106, 150

Time limitation, 95

Tinglit, 6

Title, 8, 13, 15, 68, 94, 101, 119, 122, 126, 127,

132, 155, 174

Tlingit, 66

Trade, 6, 9, 10, 24, 42, 53, 71, 103, 106, 108,

112, 113, 184

Tradition(s), 10, 25, 28, 43, 45, 53, 57, 58, 76,

119, 127, 144, 162, 167, 171, 173, 176,

189

Traditional cultural expressions, 99, 160, 165

Traditional knowledge (TK), 84, 99, 160, 161,

165–167, 177

Traditional life, 1, 54

Traditional societies, 168

Transfer of title or ownership, 102, 112

Transnational(ity), 23, 126

Transnational bodies, 168, 169

Transnational community, 124, 190

Transnationality, 23, 130

Transnational law, 3, 92, 124–131, 157, 190, 191

Triangular relationship, 38

Tribal, 70

Tribal art, 6, 126, 184

Tribal constitutions, 137

Tribal councils, 132, 135

Tribal court(s), 137, 138

Tribal government(s), 61, 81, 171

Tribal groups, 23, 33

Tribal lands, 63, 64, 119

Tribal law, 165, 171

Tribal museums, 67

Tribal structures, 26, 136, 166

Tribe(s), 1, 9, 10, 13, 23, 28, 33, 34, 36–38, 50,

56–59, 62, 64–66, 68, 69, 73, 78, 83,

112, 117, 133, 134, 140, 154, 155, 162,

163, 170, 171, 183, 189

Truganini, 9, 111

Trust, 13, 14, 34, 117, 173, 185

Tsimshian, 66

Turkey, 22

Tuscarora, 12

Index 239

U

Ukraine, 23

Uluru-Kata-Tjuta National Park, 27

U’mista Cultural Society, 15, 133, 185

UNDRIP, 28–31, 44, 46, 73, 76–78, 80, 84–86,

91, 111, 125, 148, 151, 160–164, 173

UNESCO, 20, 29, 39, 40, 43, 45, 60, 84, 93, 94,

96–100, 104, 106, 108, 112, 121, 123,

141, 146–148, 150, 156, 158, 173, 177

Goodwill Ambassadors and Artists For

Peace, 148

Intergovernmental Committee for

Promoting the Return of Cultural

Property to its Countries of Origin or its

Restitution in case of Illicit

Appropriation, 141, 146–147

Local and Indigenous Knowledge Systems

(LINKS), 147

UNESCO Convention 1970, 39–41, 43, 45, 93,

96, 97, 106, 108, 112, 115, 123, 146,

147, 150

UNESCO Conventions 2003 and 2005, 31,

97–99, 158, 177

UNIDROIT, 31, 44, 95–97, 104, 106–108, 115,

116, 142, 143, 173

UNIDROIT Convention 1995, 31, 95–97, 106,

108, 115, 116, 173

United Kingdom (UK), 46, 100, 102, 106–108,

112, 122, 128, 150

Advisory Panel on Illicit Trade, 108

Court of Appeal, 121, 122

Dealing in Cultural Objects (Offences) Act,

108, 112, 122

High Court London, 145

Human Tissue Act, 107, 130, 153

Museums and Galleries Act, 116

National Heritage Act, 116

Select Committee on Culture, Media and

Sport, 106, 152

Spoliation Advisory Panel, 141

United Nations (UN), 1, 19, 20, 25, 28–30, 39,

50, 72, 79, 80, 83, 84, 125, 159, 160,

173, 175, 189

Committee on Economic, Social and

Cultural Rights, 83, 85, 91

General Assembly, 76, 173, 189

Human Rights Committee, 80, 82, 83

Human Rights Council, 84

Millennium Development Goals, 159

Permanent Forum on Indigenous Issues, 28,

78, 148, 160

Special Rapporteur, 30, 76, 84

Working Group, 77

United States (US), 1, 3, 6, 8, 11, 15–18, 26, 27,

33–34, 37, 38, 53, 55, 57, 59, 60, 64, 65,

68–72, 76, 80, 82, 83, 88, 89, 92, 105,

111, 112, 119, 121, 123, 126, 129, 138,

150, 154, 161, 163, 171, 172, 176,

183, 189

American Indian Religious

Freedom Act, 111

Archaeological Resources Protection Act

(ARPA), 105

Code of Indian Offenses, 11

Congress, 34, 65, 71

Federal Government, 60, 69, 72, 105,

151, 189

federally recognised, 34, 36, 163

Indian agents, 11, 136

Indian Reorganization Act (IRA),

35, 81, 136

Indian Self-Determination and Education

Assistance Act, 81

National Museum of Natural

History, 186

National Stolen Property Act, 121

Native American Graves Protection and

Repatriation Act (NAGPRA), 37, 38,

55–73, 88, 92, 105, 112, 119, 124, 126,

129, 140, 150, 157, 162, 163, 179, 182,

189, 190

United States American Indian Religious

Freedom Act, 8

University, 13, 14, 129, 130, 134, 186

Unrestricted trade, 26

V

Venice Court of National and International

Arbitration, 142

Virtually repatriate, 186

Voluntary activities, 154

Voluntary consent, 71, 162

Voluntary repatriation, 155

W

Waitangi, Treaty of, 113, 170

Waitangi Tribunal, 140, 169

Wampum belt(s), 12–14, 134

War booty, 93

Warrior societies, 136

Western law, 49, 172

Western societies, 46, 47

WIPO, 29, 144, 160, 165

Arbitration and Mediation Center, 143

240 Index

Intergovernmental Committees on

Intellectual Property and Genetic

Resources, Traditional Knowledge and

Folklore (IGCs), 160

Working Group, 28, 30

World Bank, 33

World view(s), 3, 23, 45–47, 51, 53, 54, 62, 73,

131, 145, 157–158, 168, 190

World War II, 123, 141

Wounded Knee, 11, 12, 151

WTO, 29

Wupamos Indians, 183

Z

Zuni, 155, 183

Index 241

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