The Repatriation Debate and the Discourse of the Commons

DOI10.1177/0964663908093970
AuthorTatiana Flessas
Published date01 September 2008
Date01 September 2008
Subject MatterArticles
06 Flessas 093970F THE REPATRIATION DEBATE
AND THE DISCOURSE OF THE
COMMONS
TATIANA FLESSAS
London School of Economics, UK
ABSTRACT
What can the concept of ‘the commons’ lend to cultural property and heritage
analysis? How can it be applied to these areas, if one looks beyond the protection of
solely ‘natural’ resources such as land (although ‘land’, as a highly regulated substrate
bearing a plethora of significations and values, may itself no longer be considered a
‘natural’ resource)? The debates around property and culture are more usually under-
stood by reference to ‘cultural nationalism’, ‘cultural internationalism’ and the web
of disciplines and resources that grow between these two traditional approaches, and
yet these resources leave many problems and issues in this field unresolved. The
discourses that make up commons scholarship might serve to expand the toolbox of
cultural property discourse, in particular where the issues span the most personal and
the most communal problems of all: human skeletons and repatriation claims. This
article argues that the very discourse of the commons itself is a strategy, a means of
establishing and policing thresholds that in turn move according to strategies and
desires of acquisition. In short, designating an object as located within ‘the commons’
is another way of justifying the appropriation of contested cultural property.
KEY WORDS
cultural property; heritage analysis; human skeletons; repatriation claims
INTRODUCTION
INJULY2000, UK Prime Minister Tony Blair met with Australian Prime
Minister John Howard in London. On the agenda was the repatriation of
Australian indigenous skeletons and associated objects currently held in
UK institutions, in particular by the British Museum, the Natural History
SOCIAL & LEGAL STUDIES Copyright © 2008 SAGE Publications
Los Angeles, London, New Delhi and Singapore, www.sagepublications.com
0964 6639, Vol. 17(3), 387–405
DOI: 10.1177/0964663908093970

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SOCIAL & LEGAL STUDIES 17(3)
Museum and other museums in the United Kingdom. When indigenous
Australian groups requested the return of specific skeletons, ‘the museums
refused the requests on the grounds that return is prevented by legislation’
(DCMS, 2003: §56). The Trustees of the British Museum had claimed that
the terms on which they hold the collection in trust forbade them to accede
positively to the demands of indigenous peoples.1 In July 2000, the precise
number and location of the indigenous Australian skeletons held by UK
institutions was unknown. However, the requests to museums had begun to
raise questions about the necessity, and possible structure, of a repatriation
programme in the United Kingdom. After this meeting, the two prime minis-
ters issued a statement declaring that ‘[t]he Australian and British Govern-
ments agree to increase their efforts to repatriate human remains to Australian
indigenous communities. In doing this, the Governments recognise the special
connection that indigenous people have with ancestral remains, particularly
where there are living descendants’ (DCMS, 2003: 2). The statement com-
mitted both governments to a long-term cooperative effort, in consultation
with indigenous organizations, to identify and repatriate indigenous human
remains held in the UK.
This action brought the nascent repatriation debate in the United Kingdom
into focus for museums and the other institutions that might be affected by
changes in policy. The questions of how to conceptualize or categorize
human bones, and how to consider, or justify, their appropriation (either by
educational and scientific institutions or by cultural or genealogical claimants),
raised issues of contested histories, colonialism and the likelihood of being
able to establish ongoing cultural connections across centuries and continents.
Most importantly, the debate turned on the role and function of these bones
within museums and the potential clashes between the ‘enlightenment’ values
espoused by most museums, which prioritize scientific and scholarly study
and public access (with some limitations), and the values that turn on identity,
personhood and community, which might remove the bones from even limited
appearances within the public domain. This ‘clash’ of values is inherent in
any discussion that concerns itself with the ownership or allocation of human
bones. Human bones evade ownership in any traditional sense: on the one
hand, the question of property rights in the human body lacks a clear answer.2
On the other hand, the question is over-determined in legal theory: there is
a plethora of conceptual and legal regimes that seek to analyse and regulate
the function and meaning of ‘ownership’ in this area.
The debate is especially problematic because of the fluid set of identities
or identifications that human bones or skeletons can take in different insti-
tutions and during different political or historical eras. The plasticity of both
the physical and the cultural resources to be administered lies at the core of
cultural property disputes and functions to destabilize many of the certain-
ties otherwise guaranteed by law. For example, a skeleton may be an artefact,
an ancestor, an object of scientific study, a political icon or a religious relic.
The skeleton found on the banks of the Columbia River in Washington State
in 1996, and later named ‘Kennewick Man’ by the press, has filled many of

FLESSAS: THE REPATRIATION DEBATE
389
these roles in the United States. Human skeletons – or any objects of cultural
importance – are mutable in value, and thus in identity, within regimes of
regulation that turn on value. These issues were considered in depth by the
Working Group on Human Remains in Museum Collections (WGHR), which
was established by the UK Minister for the Arts under the chairmanship of
Professor Norman Palmer in May 2001. The WGHR highlighted not only the
methods of acquisition of human remains but also the underlying rationales
for acquisition. The contrast it noted between human remains as cultural
‘goods’, logically residing in collections spurred and supported by a combi-
nation of scientific interest, curiosity and interest in foreign cultural practices,
and human remains as ‘ancestors’, and thus not appropriate subjects for
collection and display, summarizes the ongoing debate regarding responsible
behaviour vis-à-vis these remains.3
After two years of work and extensive consultations undertaken by the
WGHR and the Department for Culture, Media and Sport (DCMS), the
government incorporated the recommendations of the WGHR, in their
mildest possible form, in Section 47 of the Human Tissue Act 2004. The
WGHR concluded that, ‘[w]ithout discounting the possibility of other
methods of sanctioning return, we believe that express relaxation of the British
Museum Act 1963 would enable the relevant museums to return remains at
their discretion without any concern that such return is contrary to law’
(DCMS, 2003: §58). Under Section 47(2) of the Human Tissue Act 2004, the
British Museum, as well as other institutions in England, will have the right
to repatriate or ‘de-accession’ any human remains in their collections that are
less than 1000 years old.4 The right to de-accession in subsection (2) is
extended to human remains mixed or bound with non-human materials in
Section 47(3), for example masks that include human hair or a bark canoe
that is sewn around infant bones. These institutions may either separate the
human remains from the ‘mixed’ materials or, if that is impracticable, de-
accession the entire object. Under the new regime, the DCMS expects that
the national institutions named in the Act will exercise their own judgement
as regards the questions that arise when determining when it is appropriate to
de-accession human remains. However, these institutions will be accountable
to the DCMS and the Arts Minister for the Code of Practice they adopt. In
this way, the British government splits the difference between the aggressive
repatriation policy it has promised Australia, and which the WGHR supports,
and the case-by-case, internally managed approach favoured by the national
institutions consulted.
The DCMS has now approved a Code of Practice intended to give guidance
to institutions on repatriation.5 The British Museum has also drafted and
approved its own policy on the matter.6 In light of the permissive language
in Section 47(2) of the Human Tissue Act 2004 and the broad language in the
DCMS’s Code of Practice, it is not surprising that the British Museum’s
policy charts a very narrow area in which the Trustees might permit repatri-
ation claims to succeed. Although the language of the statute allows museums
to repatriate human remains less than 1000 years old (thus attempting to

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SOCIAL & LEGAL STUDIES 17(3)
avoid repatriation claims for ‘artefacts’ such as mummified bodies or skele-
tons recovered from ancient grave sites), the British Museum draws its lines
even more narrowly, and its policy is worth quoting at some length:
The Trustees of the British Museum generally presume that the Museum’s
collection should remain intact for the benefit of present and future generations
throughout the world, but they will give serious consideration to repatriating
human remains that were buried or were intended for burial if
(a) they are less than 100 years old and a claim for their return is being made
by a genealogical descendant; or
(b) they are less than 300 years old, and
the claim is normally made by a source community which displays a
cultural continuity with the remains in question, and
...

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