Jewish & Indigenous Looted Treasures | Lecture by Stacey Jessiman de Nanteuil at Krannert Art Museum


>>So it’s my pleasure to introduce
our distinguished speaker this evening. Stacey Jessiman De Nanteuil is a
Senior Counsel with JFK Law Corporation in Victoria British Columbia where she works
with Indigenous peoples on matters of business, economic development and cultural heritage. She is an expert in Dispute Resolution
and has a wealth of experience in cultural heritage protection
and repatriation. She has developed and taught courses at Stanford
University that examine the illicit trade in art and cultural heritage and she’s an active member
of the international nonprofit Lawyers Committee for Cultural Heritage Preservation. Ms. Jessiman De Nanteuil holds a
Bachelor of Arts from Stanford University, a Juris Doctor form the University
of Toronto, and a Master of Laws from the University of British Columbia. Please join me in welcoming
Stacey Jessiman De Nanteuil. [ Applause ]>>Thank you very much, Nancy. I want to start by thanking both Nancy and
Maureen Warren for inviting me here to speak at this prestigious institution located
on Illini ancestral territory. I’m very honored to be here
with you and very excited about exchanging ideas and thoughts with you during my talk if you want and there’ll
be opportunity for questions at the end, so please feel free to engage
heavily in the subject matter. I want to start by outlining
the thesis of my talk for you, which is that while much progress has been
made, there are still some important gaps in and differences between museum and auction house
approaches to provenance research and return of looted Jewish and Indigenous treasures. And that’s caused by the
slowness of many nation states not all, and some are better than others, and the international community to fully
acknowledge the atrocities committed to those people and to adequately
provide binding legal mechanisms to redress those atrocities
through provenance research and through return of those peoples’ treasures. So the US, actually, unlike other
nations has passed important legislation in the past two decades and recently also in
the last few years addressing these issues. But as I will discuss this evening, the
legislation has flaws that need to be addressed. And what I’m trying to do in this talk
is to explore how Indigenous and Jewish peoples’ looted treasures are treated
in both legal and ethical frameworks both in the US and internationally and the
way they’re treated differently and why. So I’m going to give you a whirlwind
tour, it might feel a little all over the place
but I’m trying to bring everything together so that we’re going to examine them
holistically– of the development of legal and ethical frameworks in these
two areas during the last 70 years. And by weaving into this some case studies
that I hope will illustrate some of the issues, I’m hoping to create a basis for our
discussion during the Q&A session. So first, a few definitions, I use the term
restitution in my talk when I talk about return to Jewish peoples and rightful owners or
their heirs of Nazi looted works of art. I used the term repatriation when I’m speaking
of return to Indigenous nations, communities or individuals of illicitly
acquired sacred and cultural objects. I used the term return loosely to refer
to both repatriation and restitution. I do it for ease. It’s not at all a comment on or
judgment on the words themselves. I’m just grouping those two terms
together when I use the word return. And I use the word treasures
to mean tangible works of art. So there’s lots of kinds of
intangible cultural heritage that has been taken from Indigenous nations. In this talk I’m using the word treasures to
talk about tangible, so things you can touch, works of art– paintings, drawings, sculptures, sacred objects like Torah
and for Jewish peoples. Indigenous ceremonial regalia masks,
rattles, clam hats, pipes and medicine bags, other Indigenous material
like baskets, totem poles. All of which are important to the continuity
of Indigenous cultures and Jewish peoples. And that– need to be understood holistically
as comprising, especially for Indigenous peoples, a totally interconnected relationship between
land, resources, religion, art, politics, sustainable economies. Everything is
connected in Indigenous communities. So to properly discuss the importance of that
material to the identity and the cultures of the people from whom they
were taken and the terrible harms that their illicit removal inflicted on those
peoples would take much longer than this talk. It would take weeks and weeks but
I’ll try to give just some highlights, and I apologize for my inability
to do that justice. So what do I mean by provenance research? So the catalogue for the really great exhibition
that Nancy Karrrels is curating, “Provenance: A Forensic History of Art” provides
a useful description of that term. “Provenance research,” she says, “is a forensic
method that reconstructs legal chains of ownership to establish an
artwork’s whereabouts from the moment of its creation to its present circumstances.” So provenance research requires a really
creative multidisciplinary detective work. If you’re a provenance researcher you’re a
detective and you’re working with lots and lots of different kinds of materials
and in lots of different places. You are looking at looted art databases,
art dealer records, collector databases, exhibition catalogues, exhibition labels on the
backs of paintings… sometimes they’re half there and sometimes there’s a scrap left… artists’
and collectors marks, catalogue raisonnes of artists’ works, genealogy
and immigration records, oral histories in Indigenous communities,
photo archives, the list goes on. It’s very, very in-depth time
consuming detective work. And the success of that work relies
heavily on past careful documentation. If you want to successfully litigate,
for example, you need the documentation and you’re relying on careful documentation
practices by collectors, dealers, anthropologists, missionaries, galleries,
auction houses, museums, academic institutions that acquire Jewish and Indigenous
looted treasures. But for various reasons there are
large gaps in the provenance of much of the treasures especially removed from
Indigenous peoples during the period of massive collecting by collectors
and missionaries, anthropologists and colonial government forces and others. And that period of massive collecting on
Canada’s Northwest Coast for example was the mid to late 19th
century to the early 20th century. An explanation for this difficulty in
establishing provenance is provided and part by Professor Robert Paterson from the University
of British Columbia’s Allard School of Law. And he says “the scope of such acquisitions was
vast in geographical ethnic and numerical scope. Many items were gifted or traded while
others where stolen, obtained by force, misunderstanding or removed as part of the
actions of early missionaries and others.” We also need to keep in mind that
during this period of mass collecting, Indigenous communities were enduring
devastating harms at the hands of colonial governments including massive
land takings, destructions of economies, government bans on cultural ceremonies–
that’s in both Canada and the US– forced sterilizations, forced removals
of children to Indian residential schools and, in the US, boarding schools, where they were
physically, psychologically and sexually abused and prevented from practicing
their traditions and languages. The point of which, in Canada, the government
admitted was to “kill the Indian in the child.” The Canadian Indian residential school
system, which was actually fashioned on the US Indian boarding school model
has been the subject of a national Truth and Reconciliation Commission in Canada for
the last decade, providing a much needed forum for survivors to tell their stories and for
non-Native Canadians to acknowledge and work to redress the devastating harms of that system. So against the backdrop of this–
what has now been recognized by the TRC Commission as cultural genocide–
and I also include for you the definition of genocide because
you can see how many of those aspects of the definition applied to
the residential school system– Against this backdrop, massive amounts of
material came out of Indigenous communities and museums subsequently received collections
from the collectors with scant or no information on the artist, owner, community, date
or place and manner of acquisition. So the scale of looting of Jewish treasures
during World War II was also massive. In his book, “Holocaust Justice: The Battle
for Restitution in America’s Courts”, Professor Michael Bazyler tells us that it took
almost 30,000 railcars to transport works of art that the Nazis had looted
in Europe back to Germany, which, and all that art has a modern day
value of approximately $20 billion. An estimated 100,000 plus
works of art are still missing. As Professor Bazyler points
out, the art market in the US, which for so long has opposed regulation
and scrutiny, had a ask-me-no-questions, I’ll-tell-you-no-lies approach to provenance
of looted works resulting in many works with telling gaps and inaccuracies
in their provenance between 1933 and 1945 making their way into
museums in the period after the war, and up until the point we’ll start looking
at in the ’90s when things started to change. The catalogue– the catalogue of
this looting is so incredible. And the person behind it was
a man called Alfred Rosenberg. He led the Nazi art looting enterprise called
the Einsatzstab Reichsleiter Rosenberg, and he was found guilty of war
crimes and crimes against humanity at the Nuremberg Trials and
he was executed in 1946. His prosecution and then a few other
things in the ’40s and ’50s actually led to quite a substantial change in the approach
to restitution and provenance research. And we’re really looking at the
beginning right now of changes, fundamental changes in legal
and ethical frameworks. And it goes back to this moment. So, what happened after the
Nuremberg Trials is the 1948 UN Convention on Genocide was adopted and then in 1954 we
had the Hague Convention for the Protection of Cultural Property in the Event
of Armed Conflict that was adopted. And all of this set the stage
for these important developments. There are also some, a lot of court cases. I don’t have time to go through them. I go through them in my stolen
art class that I developed with Professor John Merryman at Stanford. And there’s tons of really
interesting and fun ones. I’m going to go through two or three
right now because they highlight some of the issues that you need to understand. So the first is a court case called Menzel v.
List, concerning the Chagall painting, “Le Paysan à L’echelle”,
“The Peasant and the Ladder”. It was seized by Alfred Rosenberg’s Nazi
looting art unit when the Menzel left– fled– Paris to the United States in 1941. So, its whereabouts between
1941 and 1955 are unknown. In 1955, however, the Perls Gallery
in New York bought the painting and sold it later that year to Mr. List. The Menzels had actually been
searching for the painting since 1941. They learned about its whereabouts only in 1962. And in 1966, Menzel brought an
action to recover the painting. So, the Perls Gallery actually was ultimately
ordered by the court to pay the value of the painting to List, which was estimated
at that time to be 22,000, it’s a good deal. And the court actually awarded
the painting to Menzel. So the real loser in this
situation was the gallery. But the actual case is most famous of its
discussion of statutes of limitations, meaning the time during which claimants have
to bring an action in order not to time-barred. And the argument that List’s lawyer raised
was that New York’s three-year statute of limitations had run and therefore
he said Menzel had filed too late. So, actually, that was a losing argument because
at least until the enactment in December of 2016 of the Holocaust Expropriated Art Recovery
Act, New York’s statute of the limitations rule for Nazi looted art claims was different from
almost every other American jurisdiction. Almost everywhere in America
is the discovery rule. In other words, the statute of limitations
begins to run either when the owner learns or discovers where the painting is or the
owner should have discovered its whereabouts with reasonable diligence. That’s the rule in the HEAR Act. But the one exception was New York. So New York had what we call
Demand and Refusal rule. Demand and Refusal rule means the owner must
bring the recovery action within three years of the owner demanding the stolen arts return
and the defendant refuses to return it. So, that’s what was in place when Menzel
brought the claim in 1966 against List. Menzel made the demand, brought his action
within the three-year period between his demand and List’s refusal so the statute had not
run and that’s why he got the painting back. There’s actually a famous case that’s ongoing. It’s been going on for 15 years. This is often in the news. You’ll see it in the New York
Times and other newspapers. And this case actually benefited
from the HEAR Act being passed. So, what the HEAR Act did,
you can see is there’s now in this act a six-year
statue of limitations. That’s an expansion of the rule. So, the HEAR Act actually applied
the discovery rule now to New York. But it’s a SIX-year rule. And what happened is because of this– actually
the Cassirers were able to continue their efforts to recover this painting because they
benefited from the extension of the time-bar. There were also other things that happened
in the various sort of ongoing litigation. Another thing that happened is the
court of appeal decided that no– whereas Spanish law was going to prohibit
the return based on adverse possession– so they had it for a long time and
nobody complained so they got it– that was the reason in lower
courts that the claim had been– the courts had decided the
claim couldn’t go ahead. The other thing that happened was a reexamination of the good faith
acquisition by the Spanish museum of this work. Could they really have acquired it in
good faith, in view of its history? And so, this aspect actually comes up
in the next case that I’ll describe to you, which I find hard to pronounce. I’ll give it my best shot,
Kunstsammlungen zu Weimar versus Elicofon. I’m going to call it the Weimar Museum,
so I don’t hack that anymore, but. This is what the case is about. The case involved two Dürer prints– Albrecht Dürer’s prints originally
owned by the Weimar Museum. They were stolen by an American serviceman
in Germany from the Schwarzburg Castle at that time it was occupied
by the Allies in the 1946. They were– The serviceman who stole them
then offered the portraits to Elicofon who paid $450 for the two pictures. Elicofon bought them in good faith. He didn’t know much about Dürer. And then he
went home and he hung the pictures in his home in New York and showed them to people
who came to his house for dinner. So, 20 years later, 20 years later(!)Dürer someone came
to his house and said, “oh, those look familiar.” He did the research and found
they were of paintings by Dürer that had been somehow lost during the Holocaust. They are very, very valuable
paintings particular to the Germans of course since Dürer is German. And so, Elicofon made a public
statement saying he would not return them and his statement was publicized in
the front page of the New York Times. So, the litigation starts. In 1969 the Weimar Museum brought suit against
Elicofon, seeking restitution of the works. To make the long story short, there were couple
of other people trying to bring the claim, they fell out, but the Weimar Museum and Elicofon both filed for
summary judgment in 1981. The court granted the museum’s motion,
directed Elicofon to surrender the paintings, finding the paintings had been stolen in
1945 and the museum was the rightful owner. So, the really interesting aspect of this
case is that Elicofon, the American, argued that the German rule on good
faith purchasers should apply. He was a good faith purchaser. And the museum argued that the American
rule on good faith purchasers should apply. So, it was backwards. So, there are two kinds of legal situations. In common law and civil law,
they’re usually treated differently. One is, in common law you
can disinherit your children. Actually, in civil law just
jurisdictions it’s harder to do that. The other is, in the civil law
world, basically the law is on the side of the good faith purchaser. So, example, Italy, the civil
code, literally says, “the good faith purchaser becomes the owner.” You have other countries in which the question
is divided in a couple of different parts– who gets the painting, who
bears the loss of the value– so that an owner could recover the
painting, but maybe the owner has to compensate the good faith
purchaser for the value. But keep in mind that the ownership by good faith purchasers is not
immediate in civil law countries. So, there is usually a time period during which
something could happen, three years in France. After three years, the good faith
purchaser acquires good title. So back to the last painting. So, this came up
as an issue in this case. And this is the issue that will
be examined as we go forward. Could the museum
have acquired this in good faith? Could they have been a good faith purchaser? So, anyway, back to the 1990s. So, now we’re in the 1990s. We’ve looked at some cases from the ’80s,
we’ve gone from the Nuremberg Trials through to some court cases
and now were up to the 1990s. And the 1990s– So, the court cases
have been bubbling along, right. So, there’s lots of stuff going in the news about art looting and looting
of Jewish treasures. And what happens is in the ’90s
things start to really explode. So a couple of things happened. The Art Loss Register publishes
or creates a commercial database. So, the Art Loss Register and the International
Foundation for Art Research do this together. And the Art Loss Register also advertises
itself as a company that will search for and recover works of art for collectors,
insurance agencies and law enforcement. They become sort of– for good two
decades the sort of only shop in town and they have this database that they
start to put together of looted works. Then Lynn Nicholas publishes a best seller. It’s called “The Rape of Europa”. If you haven’t seen the documentary,
it’s a must see. The documentary came out in 2006. The book is fantastic. It was– It documented in a really detailed
way, the removal, discovery and attempts to return 600,000 plus works
of art, the finding of the arts by the Monuments Men team
in the salt mines in Germany. And all of a sudden this
is really in the news now. There’s– “wow, that’s a lot
of art that needs to be found!” And then another key
thing that happens is the museum world is rocked in January 1998 by
the New York attorney general’s attempt to seize Egon Schiele’s Portrait of Wally, while it was on loan to MoMA in New York by Austria’s Leopold Museum
arguing it was Nazi looted art. So, his attempt to seize
through state law actually failed. The court said that state law wouldn’t enable
that, but what did happen is, a year later, the US custom service actually successfully
seizes the painting based on US federal law. And that galvanized the museum’s community. Oh no. If we are, you know, housing or bringing in an exhibition of Nazi looted
art, this might happen. So, at about the same time, actually just
before that, the US Association of Art Museum Directors, the
AAMD had convened a task force on the spoliation of art
during World War II era. And they came up with a set of guidelines that
actually formed a basis for some principles that were then flashed out at the Washington
Conference on Holocaust Era Assets. In December 1998, this conference was attended
by 44 nations, 13 NGOs, US and European museums, historians, art dealers, it was a big thing. And they all came together and they laid
out a framework for increase providence, research and encouraged signatories to
take steps to expeditiously achieve just and fair solutions to art,
looted art restitution claims. However, at the conference, the chairman did
say, “the conference made significant progress.” This is his final closing remarks– he says, “in
developing specific principles and processes for achieving just and equitable
solutions. These were recognized, however, as areas of general consensus, not
formal agreements or binding commitments.” Still the outcome document was signed
by Germany, France, the United States, Canada and forty other countries. And the conference did, as you can see, achieved
a substantial degree of consensus on a set of principles dealing with
provenance research and restitution. It encouraged research into
provenance and identification of art. It called for the findings to be published. It urged the establishment of a central computerized registry linking
all Holocaust era art loss databases. Encouraged claimants to file claims, and
encouraged states to expeditiously achieve just and fair solutions to restitution claims. One of the ongoing conversations
is: What does “just” mean? Who gets to decide? What does “fair” mean?
Who gets to decide? What does just and fair mean? And it’s a catch phrase now– “just
and fair solutions” — that you’ll hear a lot. And then insurance– insured– it wanted
to insure balance membership on commissions that addressed ownership around Nazi looted art. Now, this came up– I don’t know
if you saw in the news– in 2003, Germany established a commission. It’s nonbinding findings, but it was
commission to examine expropriated art cases. And there was in the last five years
a lot of contention around whether or not they would allow a
Jewish member on the commission. So, this– that was in direct violation
of the Washington Conference Principles. They did actually end up allowing
it but it was quite contentious. And then it encouraged developing
Alternative Dispute Resolution mechanisms for ownership issues. I wish I could give a whole talk on that,
it’s what I do in my course at Stanford, a whole hour on what exists out there for
ADR mechanisms. There are some at the UN, there’s one at WIPO–
ICOM has a mediation procedure. I don’t have time to go into it
but some progress has been made. Again, though, they’re nonbinding. Other nonbinding initiatives
that exist because or thanks to the Washington
Conference Principles. So other guidelines by museums, by the American
Alliance of Museums. There’s a 2000 UK spoliation
advisory panel that’s quite active. There’s this commission I
just talked about in Germany, there are a couple of other initiatives. And then we get to the Terezin
Declaration in 2009. And this is a followup to the
Washington Conference Principles. And they’re really trying
to move things forward. And one of the things that they do is
they address the issue of forced sale. So this wasn’t addressed in the
Washington Conference Principles and it’s really relevant
to Indigenous communities. If you think about what we’ve already discussed
about colonialism and its impact on communities and the devastation of the
cultural ceremony bans, the devastation of prohibiting cultural
practices and the removal of material in that sort of environment, they
also focus on that at the Terezin– at this conference, the Holocaust Era
Assets Conference in Prague and came up with a finding saying that– recognizing that
“confiscations, forced sales and sales under duress of property… were part of the persecution
of these innocent people and groups, the vast majority of whom died heirless.” And encouraging restitution of works taken under
duress is a really important thing to think about for both Jewish and
Indigenous looted treasures. So, after this very long–
this is just one part of it, there’s a whole long declaration
that was signed by 44 nations– we have an explosion in– and before this too,
so some of these projects that I’m going to talk about right now are before
2009 and they continue through. So, you can see Krannert Art Museum has on one. Nancy is doing some provenance
research work here. The Museum of Fine Arts Boston has a
project, the Art Institute of Chicago, MoMA, obviously after the Schiele
that became of more interest to them. The Met has one. The Getty Research Institute has one. There’s a portal now that people
contribute information on looted works to. The government of Canada–
Nancy knows all about this– the government of Canada
sponsored a project by six museums to investigate Nazi-looted
works in their collections. It was a two-year project. I think it continued for a year
and had some funding issues. But it was an important development on the
Canadian scene– and they actually published– you can download these best
practices they publish some best practices. Montreal also has a project. This project, it became quite famous,
the Gurlitt collection research project. If you know a little bit about that
collection, it was found in the Munich apartment of Cornelius Gurlitt whose father
was a well-known Nazi art dealer. And he had about, 1500, 1200 plus works of art
that were found in this tiny Munich apartment. He’d been selling them at auction houses
every once and while to keep himself living. And– Anyway, so, they said they were
going to investigate this set of paintings. Today, they have only determined that
five of them are actually looted, but I guess there’s some question whether
or not some of that work will continue. The Bern Museum of Art actually
received the collection– absent the works that were looted and returned–
by donation from Cornelius Gurlitt and there is some controversy around
the Bern Museum’s accession of that collection. It was an interesting thing, you could do
more research on– it highlights lots of the issues. So one of the other things that also
important happened in the provenance research and restitution field was the negotiation
over a 20-year, a two decade period and eventual adoption at the UN General
Assembly of the United Nations Declaration on the Rights of Indigenous Peoples. And– So in 2007 a 144 nations– excluding Canada
and United States, Australia and New Zealand who have large Indigenous populations– all voted
to adopt this important human rights document. So, those four actually did
three years later endorse it with some hesitation around mostly land issues. But– Anyway, it’s a really
important human rights document, it was negotiated over a long period
among the nations including consultation with Indigenous peoples. And one of the important thing it
does is talk about this issue that came up in the Terezin Declaration,
which is this issue of “did actually Indigenous peoples properly
consent to removal of their material?” And so, it– at several points in the
Declaration talks about the concept of free, prior and informed consent. And one of the things we need to think about is
could Indigenous people have had really free, prior and informed consent to the removal
of their cultural and spiritual objects in the atmosphere of such cultural
genocide which is what the TRC has recognized. So, I’m highlighting Article 11 there for you. Article 12 is also important because it talks
about repatriation of ceremonial objects and human remains and the right to
manifest, practice, develop and teach spiritual and religious traditions, the
right to maintain and protect and have access in privacy to their religious and
cultural sites, and the right to use and control of ceremonial objects. That’s all really important if you
think about it in the provenance realm because if you’re doing research
on these objects, then with UNDRIP you should be working with
Indigenous peoples on their provenance research. And Article 31 is also important. I want to talk about a case study now. This is a sad story, but it
illustrates, it brings together some of the things we’ve just been talking about. So, this is the Glenbow Museum
in Calgary, Alberta. Now, ironically, this museum
was the subject of a lot of controversy in the late ’80s and early ’90s. There was exhibition that called The Spirit
Sings at the time of the Winter Olympics in ’89. And there was an international furor
over some display and sponsorship issues that ended up in a boycott by
a number of museums that refused to participate in the exhibition. And it prompted the creation in
Canada of a Task Force on Museums and First Nations and they
came up with a report. This revolutionized the Canadian landscape and
decolonized Canadian museum practices in a way that hadn’t happen before, that introspection
by the museum community of what, of how they approached Indigenous
peoples’ treasures in their collections. And here we go again with the Glenbow Museum, again, the site of furor, in September 2011 the Glenbow Museum auctioned
off 220 North American Native objects that it had– just deaccessioned from its collections
allegedly to improve storage capacity and raise funds for other collections. So, the lack of provenance for these
items was also highlighted by the museum. And in the interview on a Canadian
national radio show As It Happens, the Glenbow Museum curator, Gerry
Conaty, insisted that the provenance of the items was not easy to determine
as many had originally been accessioned into the museum collections with vague
cultural and geographical details. Another spokesperson for the Glenbow alleged
that the museum tried to find homes for pieces it was going to deaccession with
First Nations’ museums that it was in contact with, arguing that because the
museum is owned by the province of Alberta, it could not transfer them to individuals,
it had to transfer them to museums. And so, here you can see one of the
items that was included in the auction. It’s a pipe bag and the auction
included snow shoes, clothing This is an Ojibwe ceremonial of pipe bag,
which is considered a sacred object, and objects decorated
with eagle feathers. The auction actually went
ahead on September 27th, 2011. And numerous Indigenous peoples from across
the country attended in person to try and stop the sale and demand the items
be returned to their cultural owners. Nonetheless, all 220 items sold, netting
but $86,000 for the museum. So, this caused furor among Indigenous peoples. And they were outraged that the objects
were auctioned off instead of repatriated, arguing that more First Nations should
have been consulted on provenance and they could have identified the objects
and the families associated with them through stylistic attributes,
materials and makers marks. So, Piikani Chief Dr. Reg Crowshoe, who
is currently a senator at the University of Calgary, similarly said that the Glenbow
should have done more work to with First Nations and individuals, not just with
museums, before the sale began. Indeed many Indigenous peoples in Canada
want more connection with and consultation over their treasures currently
in museum collections. They may also want them to be repatriated,
under land claim settlement agreements or pursuant to negotiated
agreements with museums because there is no repatriation
legislation in most of Canada. But that repatriation process can take years, and communities might not be
ready to receive the objects. And they want better relationships
with the museums and they want access to their treasures in the museums. So, in the interim they want
to be able to negotiate that. One problem though is they don’t
know where their treasures are. As Tsimshian musician and cultural
practitioner and actually museum professional Sampson Bryant said recently at the
conference that you can see on the side here, Indigenous Perspectives on Repatriation. It was held in Kelowna in March 2017. He stood up on the stage and he said
so the room is full of museum professionals– and he said, “Where is our stuff
and how do we get it back?” “Where is our stuff and how do we get it back?” Well, some of it– actually quite a lot of it–
is sitting in some basement storage of museums with large ethnographic collections. This is true of most museums that
have ethnographic collections. Seven years ago I was doing graduate research on
Indigenous cultural heritage repatriation issues and I visited the basement of a premier
ethnographic museum and I almost fainted at the size of this football field-size– it felt like it but it probably
wasn’t– room full of cultural and spiritual objects piled
high on storage shelves. And I turned to the curator and I said, for how
much of this do you have provenance information? And she said, “Twenty percent.” So, thousands upon
thousands of cultural treasures are sitting on these storage shelves and basements,
some imbued with living spirits, and their culture owners don’t
even know where they are. But the holdings of these museums
in British Columbia where I’m from, apparently are nothing compared to
what is in New York and Washington. You can see here a quote from Bill McLennan
who’s a long time curator, now curator emeritus of the University of British
Columbia’s Museum of anthropology. And apparently there’s a lot of work
left to do basically on museums’ storages. Some of these work you know,
had to get done under NAGPRA. I’m going to describe that in a second. But the US has legislation
that we don’t have in Canada. But before I get there I just want to say that it’s understandable why
this work isn’t being done, right. It’s very expensive for museums
to do such huge research projects. They don’t have the human resources to do that. They don’t have the funding and
it also involves a complex political situation. A lot of these objects will have
overlapping claims by Indigenous nations. And so you have to be willing to deal
with that scenario as well as a museum. I recently gave a talk in Ottawa
in which I actually argued in favor of having repatriation legislation in Canada
at both federal and provincial levels, and similar to the Native American
Graves Protection and Repatriation Act, which is often referred to us NAGPRA. So, NAGPRA when it became law in 1991 obligated
federally funded institutions to inventory and notified potential claimants about
certain classes of Native American, Native Hawaiian cultural items
within a certain number of years. And this is important to think about
because actually the Smithsonian National Museum of the American Indian
had at this point a claim into it for repatriation of some Kwakwaka’wakw regalia. And they actually had to put the claim on hold
and for two years they were fully occupied with inventorying their collections from 1991 onwards. It’s a huge undertaking and it
was obligatory under NAGPRA. So there was a representative from a Canadian
museum attending my talk on Ottawa who said, “Well, this wouldn’t work for our
museum because our policy is to insist that nations resolved disputes over objects between themselves before approaching the museum
regarding engaging and repatriation discussions.” And, you know, that’s an easier way to do
things but NAGPRA does it a different way. But I asked her how many objects
they’ve repatriated since 1991 and she said they’ve engaged
in over 300 consultations. And I think she– and I might be wrong– I think she said they’ve repatriated
approximately 38 items– 40 items. And I said, well, NAGPRA was enacted
in 1991 and since then museums in the United States have notified claimants
of about 1.5 million cultural items and repatriated over half a million. So the numbers, I said to her, speak for
themselves from my perspective, and argue in favor of enacting legislation. And I think it becomes even more compelling
when you think about the Calls to Action of the 2015 Final Report of Canada’s
Truth and Reconciliation Commission. So the TRC Final Report called on the federal
and provincial museums to do certain things. One of them called on institutions
and the federal and provincial governments to implement the United Nations Declaration
on the Right of Indigenous Peoples and come up with action plans to do that. And then another part of the TRC
Report called on museums to implement UNDRIP and develop better relationships
with Indigenous peoples. So that’s not to say that they’re
not already doing a concerted job. I have lots of smart, devoted curator friends
who are working very hard with communities on returning the objects
that were taken illicitly. And there is at the University of
British Columbia Museum of Anthropology a really great network that you can
access yourselves that was developed by MOA, the Musqueam Indian Band, the
Sto:lo Nation, Sto:lo Tribal Council and U’mista Cultural Society up
in Alert Bay, British Columbia. They launched this reciprocal research network, and it’s a collection of 12 partner
organizations, an online web-based resource which links the collections of these
12 partner organizations like the NMAI and Smithsonian in the United States, the
Oxford and Cambridge museums in England. It’s a long list of them. You can go on the site and see what they are. And it fosters exchanges of knowledge and part of its goal is to invite originating
communities and institutions to carry out individual or collaborative
cultural heritage research projects. But the reality is that in Canada unfortunately
because we don’t have something like NAGPRA, our statistics in terms of the numbers of
objects that we repatriate just aren’t as high as they are in United States. So NAGPRA is not perfect, though. There are flaws with the legislation. For instance, it doesn’t require US federally-
funded museums to repatriate to anyone other than a federally registered Indian tribe or Native American tribe,
or Native Hawaiian. And so that’s one flaw because there
are lots of nations in the United States that aren’t federally recognized,
lots of communities. So that’s one flaw. And also the border between Canada and US, you
know, is artificial for a lot of the nations and ones that are in Canada
aren’t eligible to have things repatriated. They can ask their friends in that community
right on the other side of that border to have it repatriated and
then get it back that way. But the other thing that it doesn’t
do is it doesn’t apply to objects that were taken outside of the United States. So it’s not going to apply to
objects in foreign museums. And that’s the next case study which, if you
follow the New York Times or the Washington-Post– all the main papers– this was in the news
all the time in 2013, in 2014, in 2015. Starting in April 2013, auction houses in Paris started auctioning off illicitly
acquired Native American sacred objects. And they did it every six months. And the one that did it the most and continues
to do it is an auction house called EVE. And among these spiritual
sacred objects are katsinam, which belong to the Hopi
people of Arizona communally. They’re not individually owned,
they’re owned by the community. And so as background, the Hopi live on 2,500-square-mile reservation–
on high plateaus in Arizona. They live in 12 villages on a top
of three mesas or points of land that are raised several miles apart. They still inhabit the oldest
continually inhabited village in the United States established 1100 AD. And they carry on their traditional, spiritual and ceremonial practices involving
their katsinam much as they have throughout the last millennium since
time immemorial despite the fact that in 1882 the US Federal Government ordered
an end to all “heathenish dances and ceremonies on reservations due to their
great hindrance to civilization.” So in Canada we had the same thing happen, the federal government banned
cultural ceremonies like the potlatch on the northwest coast. The same thing happened in the United States. And like in Canada, Hopi children will
remove forcibly to an Indian boarding school. This was the Keams Canyon Boarding School. And starting in 1887 they went there,
it was 35 miles away and they were made to abandon their Hopi identity
and traditional ways. Shortly after that, about a decade after that,
the government– or six years after that, the government opened a day
school in one of the villages. But the Hopi traditional practitioners
some of them refused to send their children. They didn’t want them being “civilized.” And so when certain Hopi parents refused to
send their children, they were arrested and sent to Alcatraz Prison in San
Francisco for over a year. So that’s some of the backdrop to the
Hopi’s failed efforts that I’ll now describe to stop the sales of their sacred objects,
their katsinam friends in both French courts and in the French administrative
tribunal that oversees auctions, the Conseil des Ventes Volontaires. I’ll say it’s CVV because that’s a big mouthful. So that’s the administrative
tribunal that oversees auctions. So, one of the problems that Hopi faced was that
the court and administrative tribunal decided that the Hopi lacked standing to bring a
claim because they lacked legal personality. So their tribe is federally recognized,
it has a constitution, it has bylaws, and just like the organizations
Cultural Survival and the Holocaust Art Restitution
Project, those are NGOs that were given standing because they are corporations–
to represent the Hopi in court. The Hopi couldn’t get standing in either
the court or the administrative tribunal. Another problem that they faced was that the
court didn’t accept that the sale posed a risk of imminent damage to the Hopi
saying the Hopi could always try and recover their katsinam
through court proceedings. Now, that actually was impossible because
as you might know, if you know a little bit about auctions, so auction houses don’t give out
the names of sellers or purchasers generally and EVE did not do this either, it
refused to give out the names. So that meant it was going
to be practically impossible for the Hopi to bring a suit to recover. So the Hopi were also not able to
establish that their katsinam were illegally or illicitly removed from Hopi
territory in violation of Hopi law because they were removed
without communal agreement. So French law actually is based
on a model of individual ownership and it doesn’t recognize communal ownership. So, again, Hopi law and their form of ownership
wasn’t recognized by the French courts. The court also refused to stop the
auction on the grounds that it was– that certain public morals– that’s a
loose translation– public morals opposed the sale because they said, OK, well the Hopi,
their katsinam aren’t human remains. If they were, that would be another thing. And the sacred character of the katsinam
is not recognized legal argument. The katsinam are imbued with spirits
but that’s not a legal argument that the French courts were accepting. They also refused to apply foreign
laws, so they refused to apply NAGPRA. They refused to apply the American Indian
Religious Freedom Act prohibiting the sale of objects used in religious ceremonies. They said it doesn’t apply in France. And they also pointed out, well, NAGPRA, even if
we applied it, doesn’t prevent the private sale of Native American ceremony objects. That’s true. It prevents– So, it applies to
federally-funded institutions. So, the court refused to
respect the provisions of UNDRIP. Also, this is, for me, the really
frustrating part, France actually– unlike Canada, United States, New
Zealand and Australia– actually voted to adopt UNDRIP at
the UN General Assembly. But when asked if they would
apply the provisions of it in the courts, they refused. And then finally to add insult to injury, the
CVV refused to apply its own code of ethics for auction houses, which requires
holding a sale involving objects with suspicious provenance,
even thought under Hopi laws, as I’ve said, title to the katsinam could not
have vested with the current possessor. So, what are the lessons we can
learn from this ongoing saga? So NAGPRA has little effect on foreign courts. Even though France endorsed UNDRIP, it doesn’t
take– seem to take– its commitment too seriously. Other courts do by the way. There are other courts around
the world that do– that have relied on UNDRIP
in making court decisions. France decided not to. Proof of ownership and theft of Native
American sacred objects is hard to establish. There’s a lack of understanding
in the auction house world about the meaning of sacred
and cultural objects. So interestingly, some people
have actually bought– gone to the auction, bought the sacred
objects and taking them to the Hopi. And, while that is viewed as very generous, one of the things we examined in
my course is, does that help in the end? Or does that create a market? And so, it’s a complicated
question for everyone involved. But certainly, I’m not saying that at all to undermine the good intentions
of the people that did that. And we need a better way
to resolve these disputes. It’s the final takeaway. So actually, while this was going on,
Christopher Marinello who’s the head of Art Recovery International
pointed out that, look, we have a– you know, well, he said conventions– so actually they are declarations–
signed by over 44 countries have signed
this Washington Conference Principles and the Terezin Declaration. He said that hasn’t been done
for Native American artifacts. So, the auction houses hide behind the fact
that consigners have these items in good faith. They just assume they do,
but that’s not morally right, he said, we don’t support that. The two parties should discuss the provenance
of the objects, to determine if they should go on public sale, with the members of
the tribes who are claiming the items. And I agree with that and it’s
something to work towards. So, has anything changed since 2013? Yes. So, all of this– in the United States, a
couple of really important things have happened and it could be as a result– and it is
a lot as a result of the sales in Paris because it galvanized the Acoma
Pueblo, the Navajo, the Hopi, all whom had sacred material that were
being auctioned off, ceremonial material, and it galvanized them into action. They had a lot of senators and
government parties behind them. And what ended up happening is they
drafted a resolution and a piece of legislation that is still a bill. But in December 2016, they passed the ‘Protection
of the Right of Tribes to Stop the Export of Cultural and Traditional
Patrimony Resolution.’ And it does a lot of important things. It condemns the theft, illegal
possession or sale, transfer and export of tribal cultural items. So, it calls on the government in consultation with Native Americans, including traditional
Native Americans spiritual leaders, to take affirmative action to stop
the practices and secure repatriation. It supports the ongoing efforts of the
US Comptroller General to study the scope of illegal trafficking in tribal culture items,
domestically and internationally and identify in consultation with Native Americans,
steps to end illegal trafficking and export of cultural items and secure repatriation
to the appropriate Native Americans. It supports the development of explicit
restrictions on export and encourages states and local governments to work cooperatively to
deter theft, illegal possession, sale, transfer and export and secure repatriation. So, it’s a really good initiative. The problem is it’s a resolution,
it’s not binding. And so, there’s also an act–
it was Bill 3127, a Senate Bill. It’s also been put forward in Congress,
called the ‘Safeguard Tribal Objects of Patrimony Act of 2016.’ And it does a few important things. It increases the maximum term of
imprisonment from five to 10 years for individuals convicted more
than once of illegal trafficking. It bans the export like the patrimony
resolution, the Protect Patrimony Resolution, and sets penalties for violations of the ban. It grants immunity from criminal prosecution– This is the thing that’s really
caused problems, I think– It grants immunity from criminal prosecution
to anyone who voluntarily repatriates to the appropriate tribe all the
Native American cultural objects in the person’s possession not later than
two years after enactment of this bill. This caused panic in the tribal
dealers’ community, you know, two years to hand over anything that
might have been illicitly acquired and you won’t be prosecuted. And then, it creates a system
for reporting and working together. But what happened is the tribal art dealers
associations were really quick to criticize the proposed legislation saying, well, we haven’t been told how we
identify objects that can be sold. And they also asked how US authorities
were going to make that determination. And then also some were worried
that increased criminal penalties for trafficking may lead
some collectors to dispose of items them rather than
return them to the tribes. So, it’s a complicated bill. There’s a lot of pushback from the
ATADA, A-T-A-D-A, the Tribal Art Dealers Association
against this piece of legislation. It has not gone forward and been put
into law and it’s still being negotiated. But truth be told, both of these
initiatives have had some important effect. Even though they don’t cover objects already
outside the US, they only ban export, they have helped increase
sensitivity among collectors and dealers regarding Native American cultural
items and they’ve chilled the illicit trade in Native American cultural items domestically. It’s hard to determine how
much, but that’s the feeling. The feeling is that these are
important and they’ve had impact. So north of the 49th parallel, we’ve
also had some important things happen in the last few years. So following our TRC, the Truth and
Reconciliation Commission Report in December 2015, the Canadian Museums
Association was asked to undertake in collaboration with Indigenous
peoples a national review of museum policies and best practices since, you know, the task force that
I mentioned in the ’80s and early ’90s. They’re going to update the
thinking and findings and also analyze their compliance with UNDRIP. So, the CMA took that
Call to Action seriously, and in 2017 announced a multiyear project led by
Turtle clan member Jameson Brant, you see in this photo on the left. She’s an experienced museum professional who for the past 11 years has headed the
Aboriginal training program in museum practices at the Canadian Museum of History in Ottawa. And another thing that happened
is the Royal BC Museum– this is where I’m from and Victoria–
also responded to the TRC Call to Action. Proactively, it created a repatriation
project with funding from the BC government and led by Haida Nation museum
professional Lucy Bell, that’s going to develop a consultation
framework and decision-making process to establish working relationships
with First Nation communities, hold consultation sessions,
provide advice to communities. It’s going to research, assess and review
repatriation requests both in a accordance within outside the BC Treaty process. It’s going to maintain an inventory of
BC First Nation objects located outside of their source communities,
that’s a big project, and is going to help facilitate the transfer of
important cultural property from other museums when requested by the source community. So, I think what we’re seeing
is across the border– on both sides of the border– at least to North
America, a renewed commitment, and especially in Canada because of the TRC, to
real consultation with communities by the Canadian government and its agencies
on heritage-related issues and handing over the implementation of programs
to First Nation and Indigenous peoples. Also, a recognition that Indigenous
peoples are best place to make decisions about Indigenous heritage issues and a
recognition that wellness is integrally linked to repatriation and a commitment to
implementing and respecting UNDRIP. So, I just want to finish with a very– I know
I’m a little overtime– a very quick summary of similarities and differences
in the way that Indigenous and Jewish looted treasures are being treated. So as we saw, both groups
have genocide– cultural, physical genocide– as a backdrop to the removals. And there are now provenance
research projects for both groups. There are more for Nazi looted art. It’s definitely something that museums
need to work on is catching up in terms of provenance research on Indigenous
looted objects, cultural material. In the US, there’s legislation now
for both types of looted objects. There’s NAGPRA and there’s the
proposed STOP Act which may come in. But outside of the US,
we don’t have the same thing. We don’t have repatriation
like legislation in Canada. There isn’t anything like NAGPRA
anywhere else in the world. And the situation still doesn’t
have a binding legal framework. In Europe, good faith purchasers
can acquire good title. And so, that’s a challenge to
overcome and there’s still a statute of limitations for Nazi looted works. And we need to think about that carefully,
should there be a six-year statute of limitations for treasures removed
against the backdrop of genocide. So, you know, that’s something that
I think was probably negotiated. I didn’t take part in that negotiation. But, you know, the number of years is something
to think about, should there be any statute of limitations in that situation? So the differences, the presumption
of illicit acquisition has led to provenance research projects
for Nazi looted art. I think if we have provenance gaps that we
see and if you’re doing provenance research between 1933 and 1945, you
know, you worry about that. There’s no similar, yet, presumption
for Indigenous material in museums. If it’s they’re before 1950– In the 1950s,
the ban on cultural ceremonies was lifted and there’s some thinking in
the museum community that, well, if it’s taken between the 1880s and 1950s,
probably we have to keep it on the treaty table, after the ’50s maybe we
don’t have to put it on the table. But still, we need to think
carefully about how material was acquired, the situation in Indigenous communities
when material was removed. And museums need to think about that,
lawmakers need to think about that. UNDRIP still doesn’t get applied in courts
around the world to any great extent. It’s something that the international
community needs to think more carefully about because they did spend decades negotiating
the document and it would seem important since it’s such a important human rights
document to apply it more in the courts. The STOP Act, as I said,
has had a lot of resistance from tribal art dealers and
hasn’t been made into law. That needs to be thought about carefully. But the HEAR Act, the Holocaust Expropriated
Art Recovery Act, quickly become law and it had some immediate effect
like we saw in the Cassirer case. And that’s sort of a positive development. So, there’s good and there’s bad. I think it’s a very complex and always
developing, always evolving field. Every time I give a talk, I have to update,
you know, because there’s always laws going on. And so, it’s a very exciting
field, an interesting field and meaningful and important field. And I’ll stop there and I’ll
open up the floor for questions. So, thank you for listening. [ Applause ]

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