Excerpted From: Kathryn G. Speckart, Black Lives Matter and the Push for Colonial-era Cultural Heritage Restitution, 72 Catholic University Law Review 249 (Spring, 2023) (174 Footnotes) (Full Document)


KathrynGSpeckartThere was an injustice perpetrated 130 years ago. It's time to close that cycle, so that the people who own this culture, these cultural artifacts, can get them back, be able to see them, study them, learn about them.

This injustice invoked by Enotie Ogbebor--a Nigerian artist and prominent voice for the restitution of African artifacts from foreign museums--was the systematic looting and taking of indigenous African art and sacred artifacts perpetrated by European colonizing armies and colonial officials in the late 19th century.

The late 1800s saw the European abolition of the international slave trade and the rise of industrialized Western economies. Economic demands provided a strong impetus for Western European countries to conquer and plunder African nations for raw materials. Exacerbating the human devastation of European colonization in Africa, conquering armies looted indigenous peoples' cultural artifacts and treasures, taking the hoards to their home countries.

European powers as well as many individual looters placed these artifacts in state museum collections or sold them into private hands, resulting in many of these artifacts finding their way into U.S. museums via the global art market. Classified as “spoils of war,” “personal trophies,” or simply a “straight up donation,” the presence of these artifacts in U.S. museum collections today gives rise to legal and ethical questions over 100 years later.

Although the United States government did not directly colonize Africa, many U.S. museums now hold significant African collections donated by benefactors and private collectors or purchased directly from dealers with private funds. Until recently, the manner in which artifacts from Africa's colonial past left the continent and entered U.S. museum collections was not openly debated in the public square.

The Black Lives Matter (BLM) movement harnessed the power of a social media hashtag and mobilized people in the United States and around the world in support of civil rights for people of African descent. Emerging in 2013 after the acquittal of Trayvon Martin's killer in Florida, the movement and its associated organization has wielded significant pressure upon governmental and private institutions to enact policies promoting the rights of African Americans. The BLM movement's influence on social policies includes areas such as the environment, policing practices, and broad economic concerns affecting African Americans.

The BLM movement's influence extends to the museum world. This pressure comes in the form of calls for more diverse staff as well as the “decoloniz[ation]” of collections comprised of art and artifacts from Africa and other colonized areas. Museum decolonization is an active process, notably implemented in some museums with Native American collections, that challenges long-held assumptions, “dismantl[ing] systems of thoughts that place[] the straight white man as standard.” Returning objects to their people or places of origin is a key aspect of decolonization.

In the context of museums with African art collections, calls for decolonization mean returning “artifacts stolen by people who took colonial violence and racial superiority as a given.” The continued presence of looted African artifacts in museum collections, after the industry has largely accepted the notion of decolonization, has been criticized as a “gaping moral contradiction.” The BLM movement challenges museums to publicly acknowledge “acts of colonial violence” and the “extent of their brutality,” thereby connecting these artifacts to a continuum of injustice toward Black African communities. As a result, the accompanying legal and ethical questions surrounding these artifacts now figure prominently in the museum industry.

To achieve lasting change consistent with the Black Lives Matter movement, there is a need for positive legislation in the United States, coupled with strong museum association guidance, that would compel museums to inventory African art and artifacts in their collections, to publicize this information, and to follow a set of guidelines for considering the return of these items, where appropriate, to their communities and countries of origin.

This Comment first summarizes the current approach in the United States to the issue of cultural heritage restitution. This includes responses to formal legal claims, compliance with obligations under special legislation, and provenance research initiatives rooted in museum industry ethical codes. Next, this Comment analyzes why this current framework does not accommodate colonial-era African artifacts. This is due to few of these artifacts being subject to legal claims under current laws, African artifacts not having protection as a special classification, and the lack of enforcement mechanisms in museum ethical codes. Finally, this Comment proposes a legislative solution, motivated by the BLM movement's pressure on U.S. museums, that compels museums to review their collections for colonial-era African artifacts with suspect provenance. This proposed solution is based upon museum standards as well as aspects of current special legislation for Native American objects and Nazi-era looted artworks proven to produce beneficial results. The proposal includes the publication of detailed artifact inventories, provenance research, community consultations, extended statutes of limitations, and restitution in appropriate cases.

[. . .]

“[N]egotiation about the status and ownership of these objects ought to begin sooner rather than later, and until there is a lot of pressure put on the institutions or the private collections that have them, they're not going to do anything.”

Here, Princeton University Professor of African and American Diaspora Art Chika Okeke-Agulu notes the status quo of the current legal framework for cultural heritage restitution in the United States--one that is not structured to fully address claims of colonial-era looted African art. Ethical codes promulgated by U.S. museum associations likewise have not been adequately applied to this class of artifacts. Professor Okeke-Agulu's voice adds to the urgency and intensity already felt from the Black Lives Matter movement. This may provide the necessary societal and political pressure, as was necessary prior to the enactment of NAGPRA and the HEAR Act, to spur new legislation and to encourage museum associations to address these concerns even without legislation. Federal legislation should not only provide a legal and moral path forward, but also acknowledge the difficult history of these artifacts and the life and meaning they hold for the communities of their creators. Ultimately, it is about rectifying past wrongs and gaining allies in the effort.

J.D. Candidate, Catholic University of America, Columbus School of Law, Class of 2023