By Sophia Do
The Indiana Jones era of cultural looting is over. The race among curators and art dealers to acquire prized artifacts to be put up on display in American museums is now a thing of the past. Today, in the face of accountability, many renowned museums are returning looted works of art to their countries of origin. Although the tide turned two decades ago, the rate of repatriations and restitutions has accelerated only recently. In 2022, the J. Paul Getty Museum returned three life-size terracotta figures dating from 300 B.C. to Italy after the Manhattan district attorney’s office seized them. The same year, the Denver Art Museum shipped off three sandstone antiquities and one bronze sculpture to Cambodia, and the Smithsonian Institution returned twenty-nine Benin Bronzes to Nigeria. The Manhattan district attorney’s office also seized twenty-seven ancient artifacts valued at more than thirteen million dollars from the Metropolitan Museum of Art, returning twenty-one items to Italy and six to Egypt.
There is no doubt that these developments signify a new era of accountability and respect towards the cultural heritage of foreign countries. The works of art at issue were often illegally excavated, smuggled, or outright stolen during times of war. While a part of these restitution and repatriation efforts were prompted by law enforcement and new laws passed by foreign governments, many world-renowned museums have taken ethical steps in conforming to the new trend. This year, the Metropolitan Museum of Art, for instance, created a new unit dedicated to provenance research in order to identify any works of art with questionable ownership history in its vast collection. These developments, on the other hand, also raise important questions on the accessibility of cultural property: should these artifacts be displayed in the famous encyclopedic museums of the Western world or should they be displayed in their country of origin, where the people can enjoy them as their nation’s cultural heritage?
The concept of cultural property is different than the bundle of sticks that defines property in the United States. Cultural properties are often imbued with cultural significance, making the people of the country to which the culture belongs feel like they have a stake in them. This is why repatriation of these kinds of objects is often an emotional event on a national level. This is also why cultural properties are often called cultural heritage; they are treated differently than personal property or other physical objects for legal purposes.
The U.S. has long recognized a public interest in cultural heritage and has historically shown a strong commitment to protecting it. The Antiquities Act of 1906 authorized the President to create national monuments from federal lands in order to safeguard the lands’ significant natural, cultural, or scientific elements. The act was subsequently supplemented by the Archaeological Resources Protection Act of 1979 (“ARPA”) (amended in 1988), which “governs the excavation of archaeological sites on federal and Native American lands in the [U.S.], and the removal and disposition of archaeological collections from those sites.” Notably, the ARPA imposes both civil and criminal penalties. In 2012, Congress passed the Native American Graves Protection and Repatriation Act (“NAGPRA”) that requires federally funded agencies and institutions to return Native American “cultural items” to lineal descendants and culturally affiliated Indian tribes and Native Hawaiian organizations. Like the ARPA, the NAGPRA imposes criminal penalties on those involved in the illegal trafficking of Native American cultural heritage.
The U.S. also promptly joined the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (the “1970 UNESCO Convention”). In 1983, it eventually enacted the Convention on Cultural Property Implementation Act (“CCPIA”). By implementing Articles 7(b)(1) and 9 of the 1970 UNESCO Convention, the CCPIA enables the U.S. to consider requests from any country party to the 1970 UNESCO Convention to impose import restrictions on archaeological or ethnological material “when pillage of these materials places a nation’s cultural heritage in jeopardy.”
Although the 1970 UNESCO Convention was the first global instrument aimed at preventing the illicit trafficking of cultural items, many nations, such as Egypt and Italy, have enacted similar laws as early as the sixteenth century in the form of patrimony laws. These laws generally vest ownership in the state for all undiscovered antiquities within its borders, rendering such items state assets that are prohibited from private sale and export absent express permission. U.S courts have found these patrimony laws enforceable in various cases.
The answer is thus clear in legal terms: Western museums have no right to ownership of any cultural heritage item that illegally found its way into their famed collections. In any event, one can never acquire good title to stolen property under U.S. law. So why should cultural heritage items in general be displayed in these encyclopedic museums, so far away from their places of origin?
On October 7, 2024, the United States Supreme Court denied the petition for writ of certiorari for the case of Deadria Farmer-Paellmann, et al v. Smithsonian Institution. Deadria Farmer-Paellman and the reparatory justice organization she leads, the Restitution Study Group, Inc., sought injunctive relief, and later a temporary restraining order, against the Smithsonian Institution amidst its repatriation efforts of twenty-nine Benin Bronzes to Nigeria. As a descendant of enslaved people brought to the U.S. from the Kingdom of Benin, Farmer-Paellman argued that “the Benin Bronzes are linked to the descendants of enslaved people in the [U.S.], and that returning the artifacts to Nigeria denies these Americans the opportunity to experience their culture.” She added that although “[t]he [Supreme] Court’s decision is a setback, . . . [t]hese bronzes are our link to learning who we are, and we will continue to fight for permanent access to these relics that connect us to our African heritage.”
The idea behind national cultural patrimony is that “cultural objects produced, or first discovered, within national borders belong to that state based on the special relationship between that state’s people and their cultural artifacts.” As evidenced by Farmer-Paellman’s cause, however, the delineation between the “state” and the “state’s people” is not always clear. By being physically and historically removed from the “state,” do those “state’s people” lose claim to their cultural heritage? Or do they retain that right from a remote place? What about Farmer-Paellman’s claim to her specific Benin lineage? The Kingdom of Benin flourished in the territory that is today located in the Federal Republic of Nigeria before the British military invaded Benin City in 1897 and violently plundered the Royal Palace of Benin. Does the Nigerian government have a right to interfere with that lineage? In fact, Farmer-Paellman is not alone on this issue: the cultural connection and patrimonial line between the people of the modern Arab Republic of Egypt and the Ancient Egyptian civilization, for instance, is hotly contested. The same argument is often applied to the modern Italian population and Ancient Rome.
Cultural heritage belongs to all of humanity. Cultural heritage signifies our historical existence on this planet and our perseverance that transcends time and culture. Such precious items must be preserved and made accessible to each and every one. In fact, the first steps towards this common claim may be happening right now, as evidenced by the new waves of repatriation and restitution efforts taking place around the globe. These efforts have ushered in a new era of accountability that may in turn provide a hopeful answer to the question of access to cultural heritage.
In 2021, the Metropolitan Museum of Art held a repatriation ceremony that centered on the return of two Benin Bronzes and a fourteenth-century brass head produced in the region of Ife to Nigeria. The museum also signed an agreement to partner with the Nigerian government in creating art loans and scholarships. It agreed to lend a part of its collection for the opening of the Museum of West African Art (MOWAA) in Benin City and to other national museums of Nigeria. MOWAA is set to open on November 4, 2024. In return, the Nigerian National Commission for Museums and Monuments (NCMM), which oversees approximately 100 state museums and monuments, agreed to loan artworks to the Metropolitan Museum of Art for the reopening of its African wing this year. Similarly, in 2022, the Smithsonian Institution announced its collaboration with NCMM to return twenty-nine Benin Bronzes to Nigeria and perform additional provenance research on more than twenty other Benin artifacts housed in its collections. Later that year, as a result of an amicable long-term loan agreement, nine of the repatriated Benin Bronzes were able to displayed once again at the Smithsonian Institution.
In these ways, there can be a feasible solution to the access of cultural heritage. Cultural artifacts, by nature, are limited in supply. But temporary and permanent loans across the world can enable these artifacts to be shared and enjoyed by humanity as a whole. The most important aspect of this approach is accountability. The Benin Bronzes discussed above were formally repatriated, with their ownership transferred to the state rightfully claiming them. Although the question of delineation between the “state” and the “state’s people” will always linger, there is no doubt that national patrimony laws are meritorious: they protect undiscovered artifacts from looting and illegal trafficking and preserve them for present and future public interest. The instances of peaceful repatriation and collaboration between encyclopedic museums and national governments may thus provide a middle ground.
