I. Introduction
A. An Example: The Benin Bronzes
The Smithsonian National Museum of African Art is the premier public institution for African artwork in the United States.
It is committed to the mission of advancing understanding of African art and culture.
One thinks of museums as obtaining, keeping, and conserving art, not giving it away. But the Smithsonian made headlines by returning ownership of twenty-nine Benin Bronzes from its collection to Nigeria.
The Benin Bronzes are a spectacular set of thousands of sculptures and plaques that once adorned the Benin Royal Palace in Benin City.
In 1897, British forces looted the Benin Bronzes during an attack on Benin City to expand British colonial power.
The Kingdom of Benin was conquered and incorporated into the British colonial empire.
The Benin Bronzes were eventually disseminated to more than 150 museums and an unknown number of private collections around the world.
Nigeria has long requested that the Benin Bronzes be returned.
In repatriating some of its Benin Bronzes, the Smithsonian was not acting under a legal obligation. Rather, this was a voluntary action undertaken as a matter of ethics, under the auspices of a new policy authorizing ethical returns.
The Smithsonian is reviewing the provenance of an additional twenty Benin Bronzes in its collection.
The museum has announced it will return any that it finds were acquired during the 1897 raid.
But if the Smithsonian were to change its mind about this commitment, it would be entirely within its legal rights to keep and continue to display the remaining Benin Bronzes, even after acknowledging their original illicit acquisition.
B. Looted Cultural Objects in Museums
The Benin Bronzes are just one example of this phenomenon. In the United States, Europe, and elsewhere, many museums possess cultural objects
that were unethically taken from their communities long ago under the auspices of colonialism.
Indeed, central to the history of foreign colonization was the deliberate, systematic extraction, not only of economic resources, but also of cultural resources from colonized peoples and into personal collections, art markets, and encyclopedic museums.
More than ninety percent of historical sub-Saharan African artworks and cultural objects are held outside of Africa, many of them taken by European colonizing forces.
For many years, such collections were considered unexceptional in the art world.
Questions about provenance focused on authenticity, not on how artworks were obtained.
Leaders of formerly colonized states began demanding the repatriation of their cultural heritage as their countries gained independence.
But then, and in the decades that followed, museums only rarely acceded to those requests.
Instead, museum directors pointed to their missions of fostering cross-cultural understanding and exchange, educating the public, and preserving, protecting, and studying such cultural objects.
Encyclopedic museums like the British Museum and the Metropolitan Museum of Art were meant to serve a unique cosmopolitan role by juxtaposing art and cultural objects from many times and places.
By keeping these pieces, museums were not endorsing colonization but rather were preserving formerly colonized peoples’ cultures and showcasing their artworks for a world audience.
Furthermore, these acquisitions were considered both legal and ethical at the time.
Now, a longstanding movement to decolonize museums is gaining momentum.
Rather than focusing solely on the ethics or legality of the circumstances under which an artifact was acquired, decolonization scholars link the past and the present.
Restitution is of course about the past damage done by the exploitation of colonization—but it is not solely about the past. Instead, the present-day choices of museums to continue to keep and exhibit looted cultural objects, over the objections of their source communities, create ongoing cultural and relational harms.
Museums extend the injuries caused by colonialism into the present by displaying items that were taken as symbols of subjugation. Source communities are cut off from their cultural heritage.
The importance of these items as aesthetic works and educational tools is privileged over their meanings as functional or sacred objects.
Museum professionals’ views on this issue have been evolving. Some museum curators now contend that a true cosmopolitan role for museums must be grounded in voluntary exchange, rather than relying on objects taken by force, through coercion, or by means of the commodification of sacred or communal objects.
They endorse a reimagined vision of the museum that would explore the modern art and culture of formerly colonized peoples, rather than focusing predominantly on artifacts of the past.
But while some museums have been reconsidering their approaches to their collections, the actual number of repatriations of contested items has remained small. For example, France holds more than 90,000 cultural objects from sub-Saharan Africa in its state museums, most obtained in its former colonies.
French President Emmanuel Macron publicly called for the return of colonial-era African art and cultural objects in 2017.
Since then, of those 90,000 items, twenty-eight have been returned.
That is because in France, as well as some other European countries, rather than facilitating such repatriations, national law actually presents a barrier to restitution.
Meanwhile, in the United States and elsewhere in the world, whether to make such returns remains a voluntary choice, not a legal obligation.
Thus, vast collections of historical cultural objects are legally kept by the museums that hold them, even though if they were taken or exported today under the same circumstances, many would be treated as stolen.
It may be that the trend toward museums reexamining their own collections and developing policies will emerge as an effective restitution tool.
But thus far, the lack of a legal regime has seemed to predominantly enable inaction.
The broader history of the development of greater protections for cultural property suggests that to effect real change, it may be necessary to develop a legal obligation requiring institutions to engage with claims concerning the cultural objects they hold.
C. Legal Standards
Cultural objects seized under the auspices of colonialism were not legally protected when taken. But since then, the importance of cultural heritage to particular societies and to humanity as a whole has been increasingly recognized in both international and national law.
Throughout the twentieth century, international humanitarian law gradually developed protections for cultural heritage. Now, several widely ratified treaties and customary international law prohibit destroying or taking cultural property during armed conflict.
Beginning with the 1970 UNESCO Convention, a series of treaties has also protected cultural property from looting or destruction during peacetime.
National laws have also increasingly acknowledged the importance of cultural heritage by safeguarding cultural property. Since the early twentieth century, many countries have established laws protecting their cultural patrimony by claiming national ownership of antiquities and prohibiting unlicensed export of cultural property, among other measures.
In the United States, the Convention on Cultural Property Implementation Act of 1983 established import restrictions on stolen cultural property and cultural objects that have been designated at risk of being looted.
More recently, the European Union passed regulations controlling the import and export of cultural property so as “to ensure the effective protection against illicit trade in cultural goods and . . . the preservation of humanity’s cultural heritage.”
But these restrictions apply only prospectively to items taken or exported after the laws become effective.
This is, of course, long after the time when many cultural objects were originally acquired from then-colonized peoples. Indeed, during the period of colonization, rather than protecting colonized peoples’ cultural heritage, European and American legal structures were organized to facilitate acquisition of cultural objects from colonized peoples.
For example, even as treaties protecting cultural heritage during war became part of international law at the end of the nineteenth and beginning of the twentieth centuries, those protections did not extend to armed conflict with colonized peoples.
Thus, these protective international and national cultural heritage laws do not provide a basis for returning items taken under the auspices of colonialism.
Since the 1960s, international human rights law has also progressively affirmed the rights of peoples, and especially Indigenous peoples, to enjoy their cultures and cultural heritage.
But while human rights standards could provide a normative basis for repatriation, particularly for Indigenous peoples, they do not presently address repatriation through binding, enforceable legal standards. The relevant international human rights treaties do not directly address the question of repatriation of cultural heritage.
Instead, they primarily focus on culture as a form of identity and protect peoples’ rights to collectively engage in cultural life and enjoy cultural practices.
The associated state obligations concerning cultural heritage are to provide access and protection.
Presently, the most direct statements on the return of cultural heritage are contained in nonbinding declarations and resolutions concerning Indigenous peoples.
D. Evolving Legal Frameworks
There are several conceptual frameworks that support the evolution in protections for cultural heritage described above and affirm the importance of restitution. Each of these frameworks endorses the premise that the law can and should be used as a mechanism to protect community interests, like the interest in cultural heritage, and to address significant social harms, like the loss of that heritage. Restorative justice models use legal processes to facilitate healing groups’ historical trauma,
while reparative justice models treat reparations as a mechanism for redressing past injustices to communities.
Transitional justice theories emphasize that when social communities have been engaged in conflict or subject to oppressive political regimes, recognition of and accountability for related harms is foundational to future peace and stability.
Theories of social reconciliation posit that a society must engage in processes that remedy structural power inequalities among its communities and address communities’ core needs and interests to enable positive transformation of community relationships.
As described above, human rights approaches identify and enforce particular rights, including cultural rights, as a means of pursuing individuals’ and groups’ well-being.
These frameworks suggest that legal mechanisms offer a way of pursuing the aims of decolonizing museums: accountability for the past harms of colonization and a remedy for the present cultural and relational harms produced by keeping and displaying looted cultural objects.
There is also an increasing interest in developing new laws and policies to voluntarily facilitate repatriation of cultural objects taken from formerly colonized peoples. Authorizing voluntary restitutions to former colonies from the government’s own holdings has recently become the subject of active legislation and policymaking in Europe.
The Dutch Ministry of Education, Culture, and Science has now adopted guidelines for repatriation of certain cultural objects from its government collections to former colonies.
Belgium has recently passed a law authorizing its Executive to enter agreements with its former colonies for return of certain cultural heritage items from its government holdings.
Australia has a government repatriation policy, and the province of Alberta, Canada, has a law promoting return of Indigenous cultural heritage on a discretionary basis.
Restitution initiatives have also been advancing in other contexts. For example, in the context of Nazi-looted art, there is strong international consensus supporting the non-binding Washington Principles, which endorse restitution of confiscated artworks to the pre–World War II owners and their heirs.
Finally, there is one law that not only authorizes but actually requires repatriation of cultural objects taken in the past. The United States does not have a law concerning the return of cultural heritage taken from formerly colonized peoples overseas. But it does have a legal regime mandating the repatriation of Native American
cultural objects and human remains.
E. A Second Example: A Native American Bundle
In December 2023, the Andy Warhol Museum quietly announced that it was returning a Native American bundle to the Cheyenne River Sioux Tribe of South Dakota.
The bundle had been part of artist Andy Warhol’s collection of millions of diverse objects, papers, and artworks.
The bundle’s history before Warhol acquired it is unknown. The Andy Warhol Museum discovered the bundle in 2018, intermingled with other items in a donation from the foundation that had inherited Warhol’s estate.
Museum curators identified the bundle as a Native American cultural object.
Within a few months, the museum circulated a notification of its discovery to potentially affiliated tribes.
Such bundles are considered sacred, and the museum’s notice identifies this bundle as an “object of cultural patrimony,”
that is, an object so central to a group’s identity and culture that it is inalienable from that community.
The museum described the bundle it was repatriating as follows:
The bundle consists of a large adult eagle wrapped in an embroidered wool shawl, patterned silk, linen, and multiple layers of patterned cotton. Most of the fabrics used in the bundle had been previously worn. The outermost layers of the bundle are wrapped in plain cotton. Hand-stitched wool stroud and silk ribbons are wrapped around the eagle’s chest, silk ribbons are tied around its ankles, and a runtee shell is tied around its neck.
In many ways, the Andy Warhol Museum’s decision to return this bundle to the Cheyenne River Sioux Tribe is like the Smithsonian’s repatriation of its Benin Bronzes to Nigeria. The bundle and the Benin Bronzes are both of great cultural significance to their source communities. In both instances, there is no indication that the original acquisition of the item was illegal under the then-applicable laws. Both the Cheyenne River Sioux Tribe and Nigeria want their cultural heritage to be returned.
Like the Benin Bronzes, the restitution of the Cheyenne River Sioux bundle is also emblematic of a broader phenomenon. Just as cultural heritage was looted under the auspices of foreign colonialism overseas, Native American cultural items and human remains have also been systematically looted within the United States under the auspices of colonialism and postcolonial laws, policies, and social norms.
Native American bodies, clothing, and cultural objects were plundered directly from battlefields.
Communally owned sacred objects and items of cultural patrimony were taken from communities without their consent, whether stolen or purchased from individuals who did not have community authority to sell them.
Funerary objects were excavated from their burial sites without consent, along with the associated human remains.
Many of these cultural objects and human remains were channeled to museums, universities, and government agencies.
Some have been prominently exhibited in museums and galleries.
Others were put away in long-term storage for future display or study.
Yet others, like this bundle, were kept in private collections.
Of course, we do not know the origin or acquisition history of this particular bundle before it was purchased by Warhol, and in this way it is different than the Benin Bronzes.
The Cheyenne River Sioux bundle repatriation is also different in another critically important way: Unlike the Smithsonian’s return of the Benin Bronzes, the Andy Warhol Museum’s action was not voluntary. Instead, the museum’s discovery of the bundle triggered a series of legal obligations.
The Andy Warhol Museum was complying with a law that required it to publicly report that it had the bundle in its collection, required it to identify the Native American communities with whom the bundle might be affiliated, required it to engage with those communities, and required it to repatriate the bundle at an affiliated community’s request.
Unlike the Smithsonian with the Benin Bronzes, the Andy Warhol Museum could not hereafter legally change course and choose to retain other such bundles. Rather, it must return to their communities all Native American sacred objects, funerary objects, and objects of cultural patrimony that meet the statutory requirements.
II. A Legal Framework for Repatriation
A. The Native American Graves Protection and Repatriation Act
The Native American Graves Protection and Repatriation Act (NAGPRA) was enacted in 1990.
It was the culmination of decades of activism by Native American advocates and communities for return of their ancestors and cultural heritage.
NAGPRA requires federally funded institutions and federal agencies to repatriate Native American human remains and certain cultural objects in their collections—most notably, even if these entities acquired the items or remains before the statute went into effect. Thus, unlike the other cultural heritage laws discussed above, NAGPRA addresses cultural objects that were taken in the past.
Furthermore, unlike other new policies authorizing voluntary or discretionary repatriation of cultural objects to formerly colonized peoples, NAGPRA’s repatriation mechanism is mandatory and enforceable. The regulated museums and agencies must engage in the statutorily defined process.
They must repatriate the designated cultural objects and human remains if the statutory requirements are met.
Any museum that fails to comply is subject to civil penalties.
Federal courts have jurisdiction to enforce NAGPRA’s requirements.
Finally, unlike other policies, NAGPRA’s requirements are not limited to the government’s own collections.
Instead, its obligations extend to private institutions, including museums, universities, and other entities, as long as they receive federal funding.
The only collections exempt from NAGPRA’s obligations are truly private holdings by individuals or by organizations that do not receive any federal funds.
Thus, NAGPRA created a retrospective, mandatory, enforceable, and widely applicable legal standard. It addresses the illicit looting of cultural objects and human remains from formerly colonized peoples. It restructures the relationships between U.S. museums and those peoples in the present day.
In so doing, NAGPRA is aligned with the conceptual frameworks discussed in the previous section. Russell Thornton describes repatriations as offering “closure [for the] trauma” experienced by Native American communities,
while Angela Riley characterizes NAGPRA as “one of the most important pieces of human rights legislation ever enacted in the United States.”
Courtney Cottrell understands NAGPRA as “attempt[ing] to alter the power imbalance and reverse the historical wrongs committed by museums, anthropologists, and explorers on American Indians and their communities . . . by attempting to foster relationships between federally funded institutions and Native Americans.”
When Native American communities sought the return of their ancestors and cultural heritage before NAGPRA was passed, museums often refused.
But NAGPRA fundamentally changed the balance of power between institutional collectors and Native American communities. Since 1990, the law has facilitated the return of more than two million cultural objects and more than one hundred thousand human remains.
This remarkable degree of success has come as the result of several decades of contestation, critique, advocacy, and evolution since the law was passed.
NAGPRA’s achievements did not happen automatically; they have been hard-won.
They also remain incomplete. Even after so many years, not all of the ancestors and cultural heritage addressed by NAGPRA have been returned.
Much can be learned not only from NAGPRA’s successes but also from its limitations and from the ways that NAGPRA repatriation practices have evolved in response to community, museum, and government engagement.
This Piece argues that NAGPRA is a valuable example for laws and policies concerning the repatriation of cultural objects taken from other formerly colonized peoples. The core aims of NAGPRA are the same as those of repatriations to other formerly colonized peoples. Many of the issues that NAGPRA addresses mirror the concerns, nuances, and uncertainties central to these other repatriations.
NAGPRA is a useful example in several ways. First, NAGPRA offers proof of concept that a repatriation law can be passed and have a measurable impact. Second, NAGPRA’s framework could serve as a technical model for other repatriation processes. Finally, because of NAGPRA’s decades of implementation experience, it is most valuable as a case study of the evolution of a repatriation mechanism in practice.
This question is particularly salient at this moment. Museums and museum associations have been developing voluntary guidelines on restitution.
The French government is considering whether to pass legislation enabling repatriations.
Other European countries have been moving forward with repatriation policies and laws.
In the United States and overseas, the Black Lives Matter movement has made the present-day legacies of racism, slavery, and colonialism evident; for some museums, it has illuminated the issue of looted foreign art as one that is not just about the past, but also about the legitimacy of our social structures in the present and the future.
For all of these groups and purposes, NAGPRA’s design and implementation of a repatriation mechanism represents an important resource.
B. NAGPRA as Proof of Concept
First and foremost, NAGPRA is proof of concept: It is possible to enact a repatriation law, possible to require the return of objects acquired in the past, and possible to have measurable real-world impact with that requirement. More than thirty years after NAGPRA’s enactment, it is still in effect and being actively implemented. It has not been rescinded or even amended by Congress.
It has not been overturned by the courts.
On the contrary, the most recent amendments to the administrative regulations implementing NAGPRA update its interpretation to more effectively facilitate repatriation and to more clearly defer to Native American communities’ knowledge in the process.
As described above, a fundamental limitation of most cultural property laws is that they apply only prospectively.
In contrast, NAGPRA’s repatriation provisions apply even to Native American cultural objects that were acquired before it came into effect. Congress accomplished this by narrowing NAGPRA’s applicability to two groups that have ongoing relationships with the federal government that render them subject to Congress’s Spending Clause and Necessary and Proper Clause authority: institutions receiving federal funding and federal agencies.
As a result, individuals and private entities that do not receive federal funds do not have any repatriation obligations under NAGPRA. The expanded applicability of NAGPRA to human remains and cultural objects taken before 1990 is nonetheless quite extensive; it reaches numerous universities, museums, and agencies with substantial Native American holdings in their collections.
In addition, NAGPRA’s focus on the ongoing obligations of federally funded institutions is also connected conceptually to the idea discussed above that the harm to formerly colonized peoples is not just a past harm but an ongoing one. NAGPRA is not solely correcting a past injustice. It is also aligning the policies of present-day federally funded institutions with the present-day commitment of the federal government to deal ethically with Native American communities.
A similarly designed U.S. law concerning repatriations to other formerly colonized peoples could also rely on Congress’s Necessary and Proper Clause and Spending Clause authority.
NAGPRA’s constitutionality is further supported by Congress’s plenary authority over Native American matters under the Supremacy and Commerce Clauses.
This would of course not be applicable to foreign repatriations, but such a law could rely instead on Congress’s Commerce Clause authority over commerce with foreign nations.
Finally, NAGPRA includes a failsafe to revert to otherwise applicable principles of property law if necessary to avoid a Takings Clause violation.
A U.S. law on repatriations to other formerly colonized peoples could utilize a similar provision.
Of course, the corresponding legal questions to be addressed will be different in foreign states considering such laws. The recent Belgian restitution law had to provide for exceptions to other national laws that prevent the Executive from permanently removing items in the public domain or transferring property overseas without compensation.
The Dutch restitution guidelines were designed to comply with the Heritage Act’s procedures.
As noted above, France and some other European states would also have to address laws prohibiting deaccessions by state museums.
Appropriately integrating a repatriation requirement into the national legal context is one area in which NAGPRA can serve as proof of concept for the United States, but not for other countries.
In addition to demonstrating the legal feasibility of a repatriation law, NAGPRA has also proven such a law’s ability to achieve real-world impacts. As noted above, NAGPRA has facilitated the return of millions of cultural items to Native American communities.
It has also had a noticeable effect in other, less quantifiable ways. Public consciousness of the issue has increased due to media coverage of NAGPRA.
Museums and communities have initiated various forms of collaboration.
Some museums that have engaged in the required consultative process with communities have reported that doing so has enabled better communication and mutual understanding.
This is not to discount the limitations on NAGPRA’s effectiveness. Concerned communities and museums, as well as advocates and scholars, have expressed significant dissatisfaction with how NAGPRA has been conceptualized, organized, and implemented.
When it was first passed, it took substantially longer than expected for museums to even begin to grapple with NAGPRA’s requirements.
Since then, NAGPRA compliance has been notoriously slow and incomplete.
Indeed, a primary purpose of the most recent amendments to the administrative regulations was to address some of these persistent concerns.
As discussed below, these complexities are exactly what makes NAGPRA a useful case study.
C. Key Issues
In addition to being proof of concept, NAGPRA and its long history of implementation could also serve as either a model or a case study for other repatriation mechanisms. For either purpose, NAGPRA offers a useful point of comparison because it addresses many of the same key issues that are also fundamental for repatriations to other formerly colonized peoples.
Who can reclaim cultural objects? Should any source community or descendant be eligible to reclaim an object, or only particular people, communities, or political entities? States may choose to focus on claims by communities with which they have significant relationships, such as their own former colonies. Some source communities no longer exist, and some new communities and political states have arisen, often as a consequence of the colonial conflicts that were the context of the object’s acquisition.
One issue that arises only in the context of foreign repatriations is that many governments perceive an international relations concern with repatriating to a subnational community within a foreign state.
Who must repatriate cultural objects? Cultural objects are in the collections of government museums and agencies, private individuals, and private institutions. A policy might address repatriation only by the government itself, or also by some or all private collectors.
Which kinds of objects should be eligible for repatriation? Should all cultural objects be considered eligible for repatriation or only objects of particular cultural importance? If the latter, what are the qualities that make an item culturally significant? A cultural object may have been sacred, communally owned, or cultural patrimony that was central to the identity of the group.
When were the objects taken? A law authorizing repatriations must determine what parameters, if any, to set around the time of acquisition. For example, parameters could correspond to a particular historical period of colonial involvement.
How were the objects acquired? Another set of questions concerns the way in which the cultural object was acquired: Which kinds of taking are considered illicit and should trigger consideration of repatriation—for example, use of force, use of coercion, or use of power? Should an object having been acquired during the colonial era establish a presumption of illicit acquisition?
What procedures should be used? Processes could be cooperative or adversarial, direct or mediated, proactive or instigated by repatriation claims, and could take place within existing institutions or through the creation of new institutions. Governments could assert decisionmaking authority, leave decisionmaking to the concerned institutions, defer to source communities, or engage in collaborative decisionmaking.
What is the relevant legal context? A repatriation law must be integrated with existing constitutional and legal requirements. There also may be relevant standards in international or national law, such as obligations to compensate the current possessor of the object. For foreign repatriations, the legal context in both the claimant’s state and the collector’s state will be relevant.
What will happen to the objects after repatriation? Objects may be publicly displayed, actively used by the community, kept, sold, or transferred. This can be a controversial issue, as questions about whether claimants can properly safeguard or conserve objects are sometimes raised as an objection to repatriation.
But these questions are not necessarily contentious. There may be consensus concerning the outcome or an interest in cooperative action.
In addition to these discrete questions, there are also several important overarching issues, including:
Addressing uncertainty and unknowns: Due to the nature of colonial acquisitions, institutional practices, and the passage of considerable time, there are often uncertainties concerning the provenance, provenience, and even the existence and whereabouts of cultural objects collected under the auspices of colonialism.
Because such unknowns are so dominant, the kinds of rules that are common to other types of claims, such as rules that place the burden of proof primarily on claimants, tend to systematically hinder repatriation claims. When these uncertainties stem directly from the colonial context and institutional failures of due diligence and recordkeeping, they are themselves an aspect of the harm to be remedied by repatriation.
Ensuring meaningful engagement: Repatriation is not solely about the result of a return but also about shifting power from collecting institutions to source communities in determining the treatment, control, and possession of cultural objects. In this sense, it is aimed at addressing the present-day cultural and relational tensions between museums and source communities and also between former colonial powers and formerly colonized states, rather than solely at remedying past wrongs. Accordingly, repatriation mechanisms must incorporate meaningful engagement among the concerned institutions, communities, and states throughout the entire process.
Of course, there are also some significant differences between NAGPRA’s context and that of other potential repatriation mechanisms. Because NAGPRA applies only within the United States, it does not address issues of international law or foreign relations.
This difference, however, does not render NAGPRA less relevant for purposes of assessing all the other shared issues noted above. In addition, a primary motivation for NAGPRA was the looting of Native American burial sites.
The return and reburial of ancestors continues to be a central focus of Native American advocacy and repatriation claims under NAGPRA.
While repatriation of human remains is also important in other contexts, human remains and cultural objects are typically addressed in separate laws and policies, rather than together as they are in NAGPRA.
But NAGPRA’s provisions for cultural objects are substantial, even though they are not the law’s sole focus.
Furthermore, the extraordinary number of cultural objects repatriated under NAGPRA demonstrates that the return of cultural objects is a significant aspect of the statute’s implementation.
Overall, there is a strong convergence between the key issues addressed by NAGPRA and those that are relevant to repatriation of cultural objects taken from other formerly colonized peoples.
D. NAGPRA as a Model
In addition to serving as proof of concept, NAGPRA’s statutory framework also offers a model for addressing each of the key issues discussed above. For instance, NAGPRA’s first procedural requirement is that museums must proactively create summaries of the Native American cultural objects in their collections.
Institutions must then notify and consult with the possible source communities.
For communities to reclaim their cultural heritage, they have to know that it exists and where it is located. Some items, like the Benin Bronzes at the Smithsonian, have been on prominent public display.
The existence of the Benin Bronzes and the location of some of them at the Smithsonian National Museum of African Art were well known to Nigeria.
But many other cultural objects, like the Native American bundle at the Andy Warhol Museum, have not been publicly exhibited.
The bundle’s existence and location would never have been known to the Cheyenne River Sioux Tribe if the Andy Warhol Museum had not proactively disclosed that information. Thus, for a legal right of repatriation to be effective, communities must have access to transparent, comprehensive information about cultural objects in museum collections. Patty Gerstenblith proposes that NAGPRA’s procedural requirement that museums provide this information could serve as a model for similar affirmative obligations in other repatriation laws and policies.
Similarly, she suggests that other aspects of NAGPRA’s repatriation mechanism could be adapted to other settings.
In addition, the key issues identified in the previous section need to be resolved not only one by one but also as an integrated whole that coalesces into a functional legal regime. Thus, NAGPRA offers an example not only of how to address each individual issue but also of the collective effects of these choices. Overall, NAGPRA establishes the possibility of repatriation for many cultural items while systematically excluding other categories of items from its repatriation requirements.
On the one hand, NAGPRA creates broad parameters for permissible repatriation claims. Unlike other laws and treaties concerning cultural heritage, it allows repatriation claims for objects regardless of when they were acquired.
It allows claims for objects that were taken in a wide variety of ways, including objects that were found, excavated, taken by force, plundered, coerced, or given by an individual who had no right to do so.
Institutions are considered to be properly in possession only of objects that were obtained with the “voluntary consent of an individual or group that had authority of alienation.”
Repatriation demands can be made both by individual descendants and by communities affiliated with the objects.
NAGPRA permits an affiliation to be shown between a community and a cultural object through many kinds of evidence and at a modest standard of proof.
But while it establishes these expansive parameters, NAGPRA also focuses on only certain claimants, collectors, and types of cultural objects. Specifically, Congress deliberately narrowed NAGPRA’s scope: from all collectors holding Native American cultural objects to only federal agencies and federally funded institutions;
from all Native American communities to only federally recognized tribes and Native Hawaiian organizations;
and from all cultural objects to only certain items designated as funerary objects, sacred objects, or cultural patrimony.
A law or policy concerning returns to other formerly colonized peoples might adopt a similar approach, balancing the broad legitimation of claims concerning cultural objects taken in the past with a relatively narrow set of permitted claimants, regulated institutions, and repatriatable objects. Of course, NAGPRA’s trade-offs are tailored to its particular circumstances and to Congress’s priorities in passing it. In addition, as discussed below, some of these parameters have been controversial in practice.
Rather than treating NAGPRA as a template for this purpose, the scope of another repatriation law or policy could be calibrated to the needs and interests it addresses, taking NAGPRA’s approach into account without being constrained by it.
Finally, NAGPRA also addresses the two overarching issues identified in the previous section: promoting meaningful engagement and addressing uncertainty and unknowns. In these areas, NAGPRA deliberately shifts some power away from the institutions holding Native American collections and to the source communities. NAGPRA’s treatment of uncertainties tends to enable successful repatriation claims, rather than allowing such unknowns to be a barrier to repatriation, by applying favorable presumptions, shifting burdens of proof, and establishing modest evidentiary thresholds.
Concerning engagement, NAGPRA requires consultation beginning immediately after institutions review their collections, and that consultation is meant to continue throughout the process.
It obliges institutions to rely on communities’ knowledge and expertise in making determinations.
But NAGPRA ultimately leaves repatriation decisions to museums and agencies.
Policies concerning repatriation to other formerly colonized peoples could similarly incorporate rules addressing the issues of uncertainties and engagement.
Of course, NAGPRA is not the only possible model for such repatriation measures. But the modern international legal protections for cultural objects discussed above do not provide such a model because they are not accompanied by comprehensive repatriation regimes.
Instead, implementation of these international standards depends on national adoption of laws and enforcement mechanisms.
In addition, even under national law, repatriation is often achieved through generally applicable laws concerning stolen property rather than specialized repatriation regimes of the kind needed to effectively address the key issues listed above.
The most fully developed of the new repatriation policies discussed above is the Dutch policy, which includes guidance on procedures, standards for repatriation, and proposals addressing other key issues.
While some of these procedures were determined by the need to comply with the Heritage Act,
as noted above, the Dutch approach could provide a useful model, particularly for other European states.
For the United States, NAGPRA is likely to offer a more relevant parallel, due to its basis in the U.S. Constitution and relationship to other U.S. laws and policies.
But the Dutch guidelines and other policies may well present some beneficial alternatives for a potential U.S. law. Alternative approaches could be particularly constructive on issues for which there has been considerable dissatisfaction with NAGPRA’s approach, as well on foreign relations issues that NAGPRA does not address.
Overall, NAGPRA’s statutory framework could operate as a model for laws and policies concerning repatriations to other formerly colonized peoples, in whole or in part. The framework might be particularly useful if considered in combination with other models offering alternative approaches. NAGPRA’s framework addresses each of the key issues discussed in the previous section individually. It offers an example of how an integrated repatriation mechanism could function. It adopts standards for addressing uncertainty and requirements that institutions consult with communities in making repatriation determinations.
One distinct advantage that NAGPRA offers over other models that are specific to formerly colonized states is its long experience of implementation. The Dutch policy and Belgian law were adopted quite recently, for example.
The complexities that have emerged over the many decades of NAGPRA’s implementation suggest that states, museums, and associations should consider NAGPRA not primarily as a template, but as a case study.
E. NAGPRA as a Case Study
NAGPRA’s several decades of implementation offer valuable insights for other repatriation mechanisms as a robust case study. NAGPRA is a long-established legal mechanism. There is considerable analysis of its successes, failures, and controversies from the perspectives of the concerned communities and institutions, as well as from the standpoints of scholars, lawyers, policymakers, and activists.
For the United States and for other countries, museums, and professional associations considering repatriation policies, what is needed is not only models of legal mechanisms but also information about how those models function and how they evolve. Since repatriation is not just about the possession of objects but also about their meanings, this includes not only quantitative data about NAGPRA’s repatriation numbers but also qualitative understandings of its cultural and relational impacts.
As described above, NAGPRA has generated the repatriation of a large number of cultural objects and human remains.
It has also achieved other qualitative indicators of success.
But an examination of the experiences of museums and communities under NAGPRA reveals nuanced and varied results. While many cultural objects and human remains have been repatriated, many others remain in museum collections over communities’ objections.
While some museums and communities have interacted cooperatively, others have been at odds.
And while NAGPRA’s statutory framework has remained constant, its implementation has not. The experience of claiming and repatriating cultural objects under NAGPRA has evolved over time, as communities, institutions, and the implementing federal agency have all responded to the law’s requirements and to each other.
Thus, one reason that NAGPRA presents a useful case study is that repatriation is not a one-time or simple process. Many aspects of NAGPRA’s statutory framework are more controversial, complex, and dynamic as implemented than as written. Some examples illustrate the intricacies of a repatriation framework in action.
As discussed in the previous section, NAGPRA’s framework shifts some power from collecting institutions to Native American communities, while maintaining decisionmaking authority in the institutions themselves. These choices have been controversial. Some advocates and scholars contend that Native American communities should have greater authority to make determinations about cultural affiliation and repatriation.
Others argue that NAGPRA’s implementation is insufficiently protective of museum interests.
The implementation of this power shift has also been complicated. Some museums and agencies have used their control at various stages of the process to avoid reporting their holdings or to deny claims.
NAGPRA’s procedures have also been notoriously burdensome and time-consuming. This has impacted some communities’ abilities to bring claims effectively as well as some museums’ capacities to promptly comply with NAGPRA’s mandates.
In response to Native American communities’ advocacy, the newest amendments to the administrative regulations establish additional incentives for institutional compliance, encourage greater efficiencies, and redirect agency policy to eliminate loopholes.
Thus, NAGPRA’s transfer of power to Native American communities was not a onetime event that was accomplished when the statute was passed. Rather, it has evolved over time as museums and communities have leveraged their statutory authority in various ways.
Another topic that illustrates NAGPRA’s utility as a case study is the first key issue listed above: to whom cultural objects should be repatriated. As noted above, this is a significant question for repatriations to other formerly colonized peoples, as well as in NAGPRA.
This subject is also particularly complex in practice. It arises in multiple ways at multiple points in the design and implementation of a repatriation process. How communities, museums, and the implementing agency have addressed this issue under NAGPRA has changed dynamically over time.
This question first surfaces in a repatriation mechanism’s design. NAGPRA’s statutory framework relies on a series of trade-offs that promote Congress’s priorities for the law, as described above.
By allowing only federally recognized tribes to make repatriation claims, Congress favored communities with which the federal government has a direct, singular relationship and grounded the law in its constitutional authority over Native American matters.
This choice, however, has also produced inequities in who is entitled to reclaim cultural objects that are affiliated with their communities. While federally recognized tribes can request repatriation of cultural objects using NAGPRA’s procedures, the many similarly situated non–federally recognized tribes cannot.
Cottrell argues that, in addition to “undermin[ing] Indigenous rights to cultural items because of federal standards of recognition,” this distinction “removes self-determination and identity politics from the hands of Native communities.”
In so doing, NAGPRA frustrates some of its purposes that are in keeping with human rights, restorative justice, and social reconciliation conceptual frameworks.
In the context of repatriations to other formerly colonized peoples, similar considerations are at play. In electing which claimants to permit, governments may wish to give precedence to claims from source communities and states with which they have strong relationships. The Dutch policy prioritizes former Dutch colonies,
while the Belgian law restricts the right to make claims to former Belgian colonies, for example.
Any such prioritization, whether concerning claimants or other key issues, may have a reasonable rationale. Inevitably, however, such choices mean that other communities’ similar interests are not addressed.
Another moment at which this issue emerges is during the implementation of a repatriation mechanism. At this point, it is necessary to determine the appropriate recipient of a particular object. While the source of the Benin Bronzes is indisputable, there is considerable uncertainty around the provenience of other cultural objects.
Furthermore, there have been substantial changes in social groups and political structures since these objects were taken, including many changes caused by the violence and disruption of colonialism.
Even if the origin of an object is known, there may be multiple present-day successor communities that could act as claimants.
This question has arisen in both of the examples discussed in this paper. The Kingdom of Benin was succeeded by both the political state of Nigeria and by a social community whose leader descends from the Oba that ruled the Kingdom of Benin. Accordingly, both Nigeria and the Oba have a basis for claiming the Benin Bronzes.
In the absence of any guiding law or policy, it is up to the collectors and claimants to ascertain on a case-by-case basis how to address such situations.
The appropriate recipient of the bundle found by the Andy Warhol Museum was also initially uncertain. The origin of the bundle was unrecorded, and the museum’s 2018 notification of the bundle’s discovery went to over forty tribes.
The bundle was originally claimed by the Flandreau Santee Sioux Tribe before that community voluntarily withdrew its claim in favor of the Cheyenne River Sioux Tribe.
Unlike the circumstances of the Benin Bronzes, NAGPRA provides a framework for addressing claims by multiple source communities and related issues.
Of course, the restitution of the bundle found by the Andy Warhol Museum was resolved consensually. But in other cases involving multiple claimants or changes in tribal identity over time, a particularly controversial aspect of NAGPRA’s implementation has been museums’ designation of certain human remains and cultural objects as “culturally unidentifiable.”
This designation has enabled museums to continue to keep objects and ancestors, notwithstanding repatriation claims from communities.
This issue is also an example of how the experience of repatriations under NAGPRA has evolved through community and institutional actions. For instance, some tribes have formed coalitions to seek group repatriations.
These coalitions allow non–federally recognized tribes to claim their heritage through federally recognized tribes that have authorization to make such claims under NAGPRA.
They also address uncertainties of cultural affiliation by aggregating many potentially affiliated tribes into the same claim.
A further response has recently been enacted by the federal agency that implements NAGPRA. The 2023 amendments to the agency regulations eliminated the “culturally unidentifiable” designation and urged institutions to use the available information to affiliate cultural objects with communities to a reasonable degree of certainty.
These examples illustrate the value of NAGPRA as a case study. It is an important resource exactly because repatriation of objects taken from formerly colonized peoples is a complex problem with variable, nuanced outcomes. If it were simple to draft a law or policy that would consistently effectuate meaningful repatriations, those considering such laws and policies could simply develop and replicate a model mechanism. Many decades of experience with NAGPRA show that it is necessary instead to understand the realities of such laws and policies in action. Its longstanding, evolving implementation offers a useful case study for doing so.
III. Conclusion
Whether museums should repatriate cultural objects belonging to formerly colonized peoples has become a hot topic. Recent high-profile repatriations like the Smithsonian’s return of the Benin Bronzes suggest that the movement to decolonize museums is having an impact.
But restitution continues to be intermittent and unsystematic. While some museums, like the Smithsonian, are adopting policies enabling repatriations, other museums are still unwilling to consider restitution.
NAGPRA demonstrates the viability of a legal repatriation mechanism for cultural objects taken in the past. In contrast to the handful of voluntary repatriations of cultural objects taken from formerly colonized peoples elsewhere, NAGPRA has enabled the return of millions of items to Native American communities.
While there are differences between domestic and foreign repatriations, many of the core issues and overarching considerations are comparable.
Enacting a repatriation law should of course result in restitution of cultural heritage, but that need not be its only aim. Congress’s intent in enacting NAGPRA was also to shift the balance of power between museums and Native American communities and thereby fundamentally alter the relationships between those groups. The Senate Committee that considered the NAGPRA legislation concluded that museums’ “culturally insensitive practices have occurred because of the failure of museums to seek the consent of or consult with Indian tribes.”
It indicated its hope that “this legislation will encourage a continuing dialogue between museums and Indian tribes and Native Hawaiian organizations and will promote greater understanding between the groups.”
Within the U.S. context, one might fairly ask whether it is realistic that Congress would consider enacting legislation addressing this issue. NAGPRA was predicated on a long history of Native American activism and expressly references the close relationship between Native American tribes and the federal government as a reason for the law.
As compared to the Congress of 1990, today’s Congress is notoriously polarized and gridlocked, and at the time of this writing, the immediate political environment does not seem likely to favor such a law. As with NAGPRA, such legislation would require long term advocacy by domestic constituencies, as well as careful consideration of how such a law might best be designed for the foreign repatriation context. Although it may seem counterintuitive, one influential constituency could eventually be museums themselves. Museums with an interest in restitution might prefer to have a single procedure to use, to have consistency among museum practices, and to ensure that repatriations are an obligation for all museums. Here, NAGPRA once again offers a model. The NAGPRA legislation was built directly from the conclusions of the Panel for a National Dialogue on Museum/Native American Relations, a joint group of museum professionals and Native Americans that met repeatedly over the course of a year to discuss repatriation and ultimately reached a consensus on the issue.
In addition to its substantive findings, that panel specifically advocated that Congress pass a repatriation law. It concluded that, while it favored the development of national professional standards by museum, archaeology, and anthropology associations, “such professional standards alone [could not] substitute for the federal legislation [it] recommend[ed].”
Finally, even in the absence of the opportunity to pass federal legislation, NAGPRA also offers an example for museums and museum associations to consider in developing their own voluntary policies and guidelines.
Overall, NAGPRA offers proof of concept, a model, and a case study of a legal framework addressing the key issues for repatriating cultural objects taken from formerly colonized peoples. NAGPRA is the only such example of a comprehensive repatriation law. It has a substantial history of implementation and evolution. After thirty years, this includes not only the language of the law itself but also the responses of the various concerned institutions and communities and the development and amendment of the government’s implementing regulations and practices. NAGPRA represents both an example and a valuable cache of resources for governments and institutions considering repatriation of looted cultural objects.