Forensic Art History

In African Arts vol. 53, no. 4, Dialogues editor Amanda M. Maples initiated a discussion of “African Restitution in a North American Context: A Debate, a Summary, and a Challenge.” The debate continues:

As I write, in August 2020, a pandemic of COVID-19 is raging and it is difficult to imagine what the world will look like in a year’s time. Amanda M. Maples is to be congratulated for keeping alive a dialogue about restitution despite the ongoing moral and economic crisis and for bringing it squarely into North America. As Christine Mullen Kraemer (deputy director of the National Museum of African Art) advocated: It is time for American museums to run toward the issue, not away from it.¹

Restitution is a topic that engages the law, history, moral and political philosophy, ethics, social history, tourism economies, art education. Engaging a wide range of African stake-holders is essential, perhaps including religious practitioners.² It should also engage Africanist art history and I will write from that perspective in this narrow format. Because so many issues and different kinds of expertise can be brought to the table, I challenge everyone concerned to accept that their opinions could well change as different voices, different bodies of knowledge, even different facts are brought to the table. As Carol Gilligan advocates, “radical listening” entails “replacing judgment with curiosity.”³

Consider the fluidity of the law. In the 1980s, spurred by demands for repatriation of antiquities, many legal authorities grounded their deliberations in property law. Even as they acknowledged moral reservations, the most important question was: Were disputed objects translocated according to the laws of ownership in place at the time of removal (Merryman, 1985)? Nonetheless, some believe that the US Native American Graves Protection and Repatriation Act (NAGPRA) of 1990 passed because activists were able “to change the conversation from property to human rights.”⁴ In 2016, when Benin demanded that the Musée du Quai Branly repatriate works pillaged from Abomey in 1892, the French government ruled with dispatch that the national collections were “inalienable” (Lecaplain 2017). Undeterred, Bénédicte Savoy shrugged, saying that that the French Parliament could simply change the law given the support of the president (Radisch 2018). In adjudicating Nazi spoliation claims, Tabitha Oost argues that there is a paradigm shift underway, from property law to a model centered on victims’ rights. The Netherlands and the UK have experimented with forming national panels to mediate between institutions and claimants seeking restitution, who might not otherwise have legal recourse (Oost 2018).

Given the complexity of the legal situation, it is vital to take up Maples’s call for the arts community to set up a consortium to generate institutional guidelines. At present, US counsels operate with a patchwork of international conventions that comprise a blunt instrument and apply only to a limited number of countries. In the opinion of Lena J. Wong, former vice president and compliance counsel at Sotheby’s, there is no viable legal option to resolve international restitution claims on a large scale. It would be desirable to work through an institutional commission to set standards for best practices or perhaps to investigate the establishment of mediation panels (as has happened in the case of Holocaust disputes).⁵

Meanwhile, the clock is ticking. Nell Murphy in the Cultural Resources Office at the American Museum of Natural History (AMNH, New York) is alarmed that the number of international claims is steadily rising and yet museums do not have the clarity of the law set out for NAGPRA to guide them (nor access to grants funded by the government to assist in travel, research, and staffing).⁶

The thirty years’ history of NAGPRA gives some idea of the costs involved. Considered a “classic instance of an underfunded federal mandate,” the US government set aside $22 million (=$39 million corrected for inflation) in implementation grants between 1994–2003 to support tribes and institutions (Brown and Bruchac 2006: 196). The tribes and the museums bear the lion’s share of costs. Some institutions needed to freeze curatorial and educational positions for years in order to create positions...