Burying An Injustice: Indigenous Human Remains in Museums and the Evolving Obligations to Return Remains to Indigenous Groups

• Author: Alex Bernick
• Position: Emory University School of Law
• Pages: 637-688

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights Press

rst published online 15 May 2014

637

Note. e author thanks Professor Morgan Cloud for his invaluable guidance in

preparing this article. e author also acknowledges his friends and colleagues for their

valuable insight and help while preparing this article. Finally, the author would like to

thank his parents, Pamela and James, for their unwaivering support and encouragement.

BURYING AN INJUSTICE

INDIGENOUS HUMAN REMAINS IN MUSEUMS AND THE EVOLVING

OBLIGATIONS TO RETURN REMAINS TO INDIGENOUS GROUPS

ALEX BERNICK

Emory University School of Law

E-mail: alex.bernick@emory.edu

is article focuses on the various national laws, international declarations and

treaties, and professional codes have shifted in the past century to push for the returns

of the remains of indigenous persons excavated in the nineteenth to early twentieth

centuries. is article aims to shift the discussion away from creating new laws to

discussing how the museum professional duties have changed. e article begins with

two case studies of the repatriation of South African remains from Europe as a way to

illustrate the issues that exist at each step of the remains journey from their collection,

their holding in foreign institutions, and their return to native land. e article

then uses the history of collecting indigenous remains to display the previous and

current legal issues that have been problematic for ocials today. Next, the article

surveys the older laws that protected burial sites to the current proliferation of laws

regarding human remains in museums. e obstacles faced by both host institutions

and indigenous groups are presented to highlight the abilities for law to further the

goals to repatriate remains but still fall short. is survey breaks down the challenges

faced by countries with museums holding remains, those with museums holding

remains and having large indigenous groups, and developing countries with large

indigenous groups to show how these countries must approach this subject dierently

due to the social and economic conditions faced by these circumstances. Finally, soft

law including human rights declarations and professional ethics codes, which have

had a larger impact on the return of remains, are analyzed. e moral and ethical

duties have brought this issue to the forefront and continue to push museums and

The Indonesian Journal of International & Comparative Law Volume I Issue 3 (2014) at 637–688

Alex Bernick

638

institutions to nd ways to return remains to ancestral groups or hold them in a

respectful manner.

Keywords: Human Rights, Cultural Property Laws, Collective Rights, International

Law of Responsibility.

I. INTRODUCTION

“I’ve come to take you home” begins the poem that poet Diane Ferrus

wrote to commemorate the return of the remains of Khoisan Sara Baartman

to South Africa in 2002.1 For years, the South African government and

indigenous groups lobbied the Parisian Musée de l’Homme to return

her remains. To enable her remains to be sent back to her homeland,

the French government passed legislation after eight years of lobbying to

allow th Musee de l’Homme to return the body to the South African.2

Ten years later, the bodies of a Khoisan couple, Klaas and Trooi Pienaar,

were laid to rest again in South African soil after almost a hundred years

of being stored in Austrian museums.3 e Pienaar’s remains had been

taken from their graves a month after the couple had been interred.4 For

each burial ceremonies for Baartman and the Pienaars, the South African

president and his cabinet found the occasion to be large enough to require

their presence.5 At the Pienaar’s ceremony, South African President Jacob

Zuma used the reburial ceremony to call for South Africa and other

countries to “decolonize” their museums.6

“Decolonizing” museums entails reversing the eects the eighteenth

1. D F, I’ C  T Y H 10 (2010).

2. Marang Setshwaelo, e Return of the “Hottentot Venus”, R S (Feb. 14

2002), http://web.mit.edu/racescience/in_media/baartman/baartman_africana.

htm.

3. What the Pienaar Homecoming Means, C P (May 20, 2012), available

at http://www.citypress.co.za/columnists/what-the-pienaar-homecoming-

means-20120519/.

4. Jacob Zuma, President, S.Afr., Presidential Speech on the Occasion of the

Reburial of Mr and Mrs Klaas and Trooi Pienaar at Kuruman, Northern Cape

Province (Aug. 12, 2012), available at http://www.thepresidency.gov.za/pebble.

asp?relid=6588 [hereinafter Zuma’s Pienaar Speech].

5. “Hottenot Venus” Laid to Rest, supra note 2.

6. Zuma’s Pienaar Speech, supra note 4.

Alex Bernick

BURYING AN INJUSTICE: INDIGENOUS HUMAN REMAINS IN MUSEUMS AND THE EVOLVING OBLIGATIONS TO RETURN REMAINS TO INDIGENOUS GROUPS

639

to early twentieth century ethnographic collecting of indigenous cultural

property had in depositing these items in Western museums. Since the

1970s, indigenous communities in Asia, the Americas, Africa, and Oceania

started to reclaim their heritage and called for the return of their ancestors,

who were disinterred for collectors of ethnographic items.7 Now, museums

and governments have begun to hear this call and started eorts to nd

ways to return remains to indigenous communities. Governments utilize

various methods to repatriate remains including the enactment of laws

to mandate returns and the creation of programs to assist museums and

communities in repatriating human remains. Museums have responded

to the indigenous movements with implementing policies regarding the

handling and disposition of human remains. With governments and

museums beginning to recognize the greater potential to humanity to

return remains and human rights issues, cultural shifts have sprung new

duties, both legal and professional, on museum ocials to investigate

and promote the return of these remains, which has lessened the need for

international conventions.

is article will begin by exploring two case studies of how remains

have been returned. ese case studies will present a face and name to

some of the issues that encompass the return of ancestral remains to

indigenous communities. Part III of the article will present the history

of collecting or grave robbing in the nineteenth and twentieth centuries.

Part IV will describe the general common law on human remains and its

inability address the possibilities to return human remains. is part will

set up how the gaps in the previous laws needed to be solved by current

and future legislation. Part V will focus on the various types of national

legislation passed focusing on the return of human remains. Part VI will

then examine museum and ethical codes to demonstrate the growing

awareness of the need to return remains and its potential benet. Finally,

Part VII will assess the human rights implications of the storage of remains

in museums today and the applicability of international conventions to

this issue.

7. T J, C H R  M C 3

(2011).