Introduction
We know well our inability to provide true justice to Holocaust victims. We cannot restore life nor rewrite history. But we can make the ledger slightly less out of balance by devoting our time, energy and resources to the search for answers, the return of property and the payment of just claims. Footnote 1
In these opening remarks to the 1998 Washington Conference on Holocaust Era Assets, Madeleine Albright observed that while the ledger can never be truly balanced, our goals and our efforts should be focused on reducing the imbalance. While she spoke these words with the Nazi context in mind, Albright’s observation rings true for other circumstances of cultural property dispossession in contexts of persecution and genocide. Both contexts discussed in this article, Nazi-era dispossession and US settler-colonial dispossessions, share a connection to genocidal practices, which engenders an inherent inability to ever balance the ledger. What an individual or community has suffered can never be balanced with any benefit or compensation they might receive in the aftermath. There can be no complete justice for a crime of that magnitude and depravity; there is nothing that can be done afterward to balance the scales of justice. For the purposes of bringing attention to conditional return, this article is not making a distinction between the original acts of dispossession; instead the focus is on objects in museums about which there has been a successful claim from the claimant(s). The two contexts provide distinct case studies, demonstrating the flaws of conditional return and justifying a prohibition on its use. While there are differences in the two contexts, they share commonalities,Footnote 2 and each serves to provide a clear example of a type of conditional return and to illustrate that the problem goes beyond one context. Together they ensure the full story of conditional return is told – both the obvious and the more covert conditions that can be imposed.
Conditional return refers to an arrangement where the possessor institution agrees to return the claimed cultural object but on the condition they (or a third party) receive something in return.Footnote 3 Correspondingly, the claimant is required to give something up. Conditional return is entrenched in policiesFootnote 4 and guidelinesFootnote 5 concerning the return of cultural property but has not received adequate critical evaluation.Footnote 6
This article begins by unpacking what is meant by “the ledger” and what is meant by conditional return. With these concepts better understood, the article moves to each of the case studies. First, in the exploration of classic conditional return, Nazi-era claims are primarily discussed. The article discusses three distinct problems in the Nazi-era context and briefly draws upon a Native American claim to further strengthen the argument. Having demonstrated the problems with classic conditional return, the article turns to covert conditional return through an examination of claims by Native American groups for their cultural property. The article concludes that a prohibition on conditional return is necessary to ensure a just and fair solution and prevent the reinforcement of power imbalances.
Moving away from conditional return would be a significant step forward in the field, a reckoning with what the goals of return are, a clearer understanding of the interests supported by the current processes and outcomes, and an acceptance that these outcomes do not align with the goals of return. Continuing to utilize conditional return risks further entrenching power imbalances and preventing reconciliation and healing, undermining the goals of return.Footnote 7
Balancing the Ledger
In any attempt to make the ledger less imbalanced, it must first be understood what it is that that needs to be balanced. A ledger in its original context is a list of accounts, of transactions, what is owed and to whom. In this context, the ledger is still concerned with debts but in a moral sense rather than strictly financial. Furthermore, the ledger solely relates to the victims and their heirs and communities. The balance aimed for is between the historical suffering and contemporary attempts for justice. What Secretary Albright highlighted at the Washington Conference is that the atrocities suffered are unable to be balanced by any contemporary attempts toward justice. Instead, justice must be the goal while we recognize that it will never be possible to restore life or rewrite history and successfully balance the ledger.
Despite Albright’s words, it took almost 30 years for this understanding to be reflected in the guidance. The Washington Principles of 1998 use the language of achieving a “just and fair solution.”Footnote 8 It is the “just and fair solution” that this article understands as the idea of justice to be aimed for. This terminology has been taken up in the literature;Footnote 9 however, until recently its meaning was not clarified. The last few decades have seen a belief that just and fair solutions require a balancing of the interests and values of the claimant and the possessor in the remedy provided. This is reflected in the use of conditional return, both when the conditions are explicit and when they are covert. Whether asking for monetary repayment, the exchange of knowledge, or the acceptance of authority, there is an underlying belief that the possessor making the return ought to receive something back. This does real harm in reinforcing power imbalances and minimizing the suffering of claimants, failing to meet the standard of a “just and fair solution.”
In 2024, the “Best Practices for the Washington Conference Principles on Nazi-Confiscated Art” were released, stating “‘Just and fair solutions’ means just and fair solutions first and foremost for the victims of the Holocaust (Shoah) and other victims of Nazi persecution and for their heirs.”Footnote 10 This is not yet a common practice or belief; for example the Spoliation Advisory Panel’s terms of reference continue to state its purpose is “to achieve a solution which is fair and just both to the claimant and to the institution.” While the best practices themselves are somewhat controversial,Footnote 11 they indicate a culture change, one that echoes Albright’s words. Other interpretations of a “just and fair solution” have been suggested in the literatureFootnote 12 but focus on procedural fairnessFootnote 13 rather than the solution to the claim. As a remedy, conditional return is a solution to a claim – not a part of the procedure – and does not meet the standard of “just and fair.”
Prior to the Washington Conference and its principles, claimants faced often insurmountable legal obstacles such as those due to jurisdictional complications, limitation periods, gaps in evidence, and so forth.Footnote 14 This purely legal, usually litigious, approach was considered unsatisfactory,Footnote 15 and with the Washington Conference, countries were encouraged to establish alternative dispute resolution mechanisms.Footnote 16 Each country and panel strikes its own balance between legal and moral paradigms,Footnote 17 a balance that often changes over time. While approaches vary, the language surrounding these panels frequently refers to the need to remedy historical injustice.Footnote 18 Discussion in the British Parliament on the establishment of the Spoliation Advisory Panel refers to aiming to “right historic wrongs.”Footnote 19 The Dutch 2020 report “Striving for Justice” suggests “perhaps the most important aspect of that task [assessing claims] is, paradoxically, to remedy an injustice so breathtakingly enormous that it is impossible to make amends for.”Footnote 20 This advisory report was key in the Dutch Restitution adopting a more liberal approach to restitution. The preamble to the new German Arbitration Court’s “Assessment Framework” also speaks of acknowledging historical responsibility to ensure justice for the victims.Footnote 21 In order to remedy historical injustice, some countries have removed limitations periodsFootnote 22 and reversed the burden of proof with presumptions of involuntary dispossessions.Footnote 23 While steps like these help in remedying historical injustice, until conditional return is prohibited, the success of that goal will be limited.
What Is Conditional Return?
Conditional return is a form of remedy that can be utilized in the return of cultural property. Return here refers to a transfer of legal ownership at a minimum, often accompanied by a physical transfer of possession. Despite its use in cultural property return, there is noticeable lack of investigation into conditional return. Where there is discussion, there is a lack of critical engagement with potential issues.Footnote 24 The use of conditional return as an outcome in situations wherein the rightfulness of the claimant’s ownership has been accepted is fundamentally flawed. Language of “true”Footnote 25 or “rightful”Footnote 26 ownership can be found across different return contexts and is an accepted value of these return processes. Despite this understanding, conditions may still be imposed on the return of the object to the claimant. These conditions are often imposed covertly and without acknowledgment from those in power as to what they are truly requiring. Conditions remain covert because of the power imbalances at play and the presumed authority of the institutions involved. Powerful institutions can manipulate the behavior of claimants with the promise of having their object returned.
Claims for the return of cultural property have a strong symbolic element, going beyond simple property disputes.Footnote 27 Claimed objects are often part of a culture’s identity,Footnote 28 part of their spiritual practice,Footnote 29 taken from them because of a belief in the inferiority of their culture,Footnote 30 and often with the background of genocide or severe trauma.Footnote 31 The return of such objects represents righting a wrong, freedom from the past,Footnote 32 a confirmation that what happened was illegitimate – whether illegal or immoral – and a desire by those in power to make things right. Furthermore, the ability of a community to control their own culture is linked to their sense of identityFootnote 33 and can increase self-worthFootnote 34 and serve as a protective factor against the impacts of trauma.Footnote 35 There is, therefore, a pressing need to address the dispossessions and ensure these claims are treated appropriately.
Although every claim and its outcome are unique, there are commonalities in the reasoning and justifications for imposing conditions. Arguably the most problematic situation is where the state or an institution has a desire to avoid “enriching” the claimant; this concern is most frequently expressed through requiring the return of previous compensation or a prohibition on selling the object.Footnote 36 Savoy has noted in the African context the suggestion by institutions of conditions with the goal being to slow down or deflect restitution claims.Footnote 37 Institutions also express a worry about a loss of data and knowledge as a result of making a return and no longer being able to research that object.Footnote 38 While this is often phrased as a loss for humankind, the loss of benefit to the institution cannot be forgotten.Footnote 39 Worries have further been conveyed as to the claimant or claimant community’s ability to care for the returned object,Footnote 40 risking a loss to humankind from the object not being preserved according to institutional standards.Footnote 41 While these concerns may be communicated in good faith, the focus here is on achieving justice for the victims and their communities rather than reassuring institutions and governments.
There are two types of conditional return in this context: return subject to a condition precedent and return subject to a condition subsequent.Footnote 42 Conditions precedent require the claimant to do something before the object will be returned, often repaying previously received compensation. In contrast, conditions subsequent require actions to be undertaken after the object has been returned. Neither type of conditional return fits comfortably with the idea of restoring ownership to the rightful owner.
In critically evaluating conditional return, this article highlights the prevalence of the misguided belief that the ledger can be balanced and the deeply misplaced concern that it may be balanced in a way that enriches the victim or their heirs. Conditional return reflects this misunderstanding and risks deeper imbalance. It is argued that conditional return ought to be prohibited as an outcome where it has been determined that the property was taken as a result of a persecutory and genocidal context. The focus here is on the outcome of the claims, not the basis or legitimacy of those claims. In the case of illegitimate or unclear claims, the claimant is unlikely to be successful and return unlikely to be recommended, making a prohibition on conditional return in these situations unnecessary. Legitimate concerns have been raised over the potential for confusing a recognition of the injustice suffered by the victim group with the claim for the disputed object. There is a worry that a victim-based approach could lead to compensation by virtue of being a member of the claimant groupFootnote 43 or that, without a causal requirement, victims of the Holocaust who had contact with artwork would receive more compensation than those without.Footnote 44 In this context the goal is to remedy historical injustice on a case-by-case basis rather than for the claimant group as a collective. Moreover, the argument here that conditional return ought to be prohibited is limited to claims where the claimant has been determined to be the rightful owner. It is not suggested that conditions or collaborations are always inappropriate; in more nuanced cases they are likely to be beneficial. However, where a decision-making body has determined the claimant is the rightful owner and that a return of the object is the best outcome, conditions should not be imposed on that return.
Classic Conditional Return
Conditional return, as traditionally understood, contains explicit instructions of what the return is conditional upon. While not unique to Nazi-era claims – being found broadly across cultural property returnFootnote 45 – this classic conditional return is used in the European panels established to hear Nazi-era claims.Footnote 46 The panels were set up following the Washington Conference, implementing the 11th principle, which recommended the establishment of “national processes … particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.”Footnote 47
The panels in GermanyFootnote 48 and the Netherlands (in issuing binding opinions)Footnote 49 are both able to utilize conditional return as a remedy, as stated in their establishing documents. As a remedy conditional return includes, but is not limited to, the repayment of previously received compensation. It has been suggested that the Dutch panel accounts for “unjust enrichment” even in state collection claims (i.e., nonbinding opinions).Footnote 50 The Austrian Art Restitution Act 2009 requires the original owners, or their heirs, to return previously received payments they received from the Austrian government before restitution can occur.Footnote 51 However, since there was no compensation program from the Austrian government post–World War II, any concern over previous compensation would be from another state such as Germany.Footnote 52 The UK Spoliation Advisory Panel has also required the return of previous compensation to the German government.Footnote 53 The repayment of previous compensation is not generally considered controversial and has recently been supported in the literature.Footnote 54
Despite its use, conditional return (whether imposing a condition precedent or subsequent) remains a problematic outcome, one that does not meet the standard of a “just and fair solution.”Footnote 55 First, requiring the repayment of compensation requires attempting to financially quantify suffering, the emotional value of the object, and any changes in monetary value and is impractical and inappropriate given the context. The second reason for excluding conditional return, of any type, is that if a dispute resolution body concludes an object ought to be returned, it no longer makes sense for that body or for the respondent to be able to enforce conditions and restrictions on that ownership. It is only because of the injustices and the spoliations that these institutions came into possession of the objects; to then use this current factual possession to perpetuate damaging power imbalances and continue exerting control is a perpetuation of the same injustices. Finally, imposing a condition subsequent allows the state or its institutions to continue to exert control over returned objects and further entrenches unfair power dynamics. These three problems with classic conditional return will now be explored in more depth.
The Inappropriateness and Impracticality of a Financial Approach
A common condition for return is the repayment of previous compensation to avoid the “double compensation”Footnote 56 of receiving both the object and compensation for the loss. Repayment of previous compensation is an example of a condition precedent. Some victim families may have received compensation from Germany and/or other occupied countries in the postwar period. Compensation was distributed for far more than the dispossessed artwork, including incarceration of family members and loss of economic prospects.Footnote 57 Where compensatory payments have been found to be relevant in claims, they have ranged from more generic paymentsFootnote 58 to itemized lists of what was lost,Footnote 59 to insurance policies.Footnote 60 Where compensation was received for the object now claimed (or potentially received), the claimant may be asked to return that payment prior to or upon receipt of the claimed object.Footnote 61 This financial approach reflects a misplaced concern and one that can come too close to dangerous stereotypes. For instance, Jewish claimants have faced accusations implying they are “cashing in” on the claimsFootnote 62 or that restitution is “Jewish extortion.”Footnote 63 These beliefs have been said to “[reinforce] the pernicious stereotype that [we] Jews are always up against – that [Jews are] enamored of money.”Footnote 64 To ensure a safe claims process that does not perpetuate and reinforce the stereotypes that Jews have historically faced, and indeed faced at the time of dispossession, it is important this issue is reframed. As Cotler observes, “there can never be any restitution for genocide.”Footnote 65 These financial concerns reflect a belief that the ledger may end up imbalanced in favor of the victim or their heirs, instead of recognizing that true justice is unachievable and all that can be done is to reduce the imbalance. Since no amount of compensation or restitution could ever account for the suffering, the concern should not be whether victims and their families have received too much compensation or could be “unjustly enriched.”Footnote 66 Terms like “unjust enrichment,” “double compensation,” and “over compensation” are insensitive and fall short of an approach focused on justice for the victims. Furthermore, regardless of the claimant group, framing these issues with a financial lens misunderstands the historical context and the contemporary stakes. Concern over “double compensation”Footnote 67 demonstrates the capitalistic lens through which these claims are often viewed. It is hard to reconcile these financial concerns with an understanding of the symbolic natureFootnote 68 of the returns. It is also worth noting that having the dispossessed object returned is not a form of compensation – rather, it is the return of the stolen property to the victim-claimant. It is the restoration of stolen property in the purest sense. Therefore, any financial payment they receive or have received cannot be “double” compensation; it is the only compensation received, and “double” is a misnomer. Indeed, the compensation could be understood as relating to the period of time the object was separated from the family, even if it was not a permanent separation. Legally this could be considered akin to “loss of use,” which results in damages when conduct meant property was unavailable for a period of time.Footnote 69 Any compensation received postwar, relating to the loss of an object, cannot balance the ledger.
Instead of asking whether a victim has received too much, the question ought to be whether there will be unintended negative financial consequences for innocent third parties (i.e., the museum). This, then, is to be resolved between the state and the institution, particularly since in some circumstances of return, return is mandated by the state or heavily encouraged.Footnote 70 The state, and in particular Germany and occupied countries, should not be chasing victims of the Nazis to make repayments to the state. Similarly, the settler governments should not be requesting repayments from Indigenous and minority groups. That is a cost for states to bear. To do otherwise would be to allow the (in some cases, once persecutory) state to make some judgment as to the extent of the suffering and the monetary equivalent of the victim’s trauma. The traumatic and emotional context makes it inappropriate for the state to ask for repayment. Indeed, the 2024 “Best Practices for the Washington Conference Principles on Nazi-Confiscated Art” state, “in case of restitution, current possessors should not seek repayment from the pre-War owners or their heirs of the purchase price of Nazi-confiscated works of art in their collections.”Footnote 71 The recent nature of these best practices means their full impact has not yet been seen, but outcomes of previous claims are in direct conflict with this new guidance. The complexity of attempting to balance the ledger becomes clear through the analysis of some theoretical, practical scenarios.
It is possible that, in order to return the initial payment, the victim-claimant would have to sell the object. The idea of returning previous compensation as a condition precedent to return is premised on the belief that the claimant is financially able to return this money. While some may be able to, this is not universally true. Many families are in a very different financial situation than pre-1933 – because of the Nazi persecution – and simply could not afford to make that payment without selling the object. Having to sell the object would result in the same outcome as the previous arrangement, wherein the family has received financial compensation for the loss of the object.Footnote 72 Moreover, selling the returned object is something for which Jewish claimants have been criticized,Footnote 73 an argument used by the institutions to retain possession.Footnote 74 This becomes a lose-lose situation for claimants who are not permitted to keep the financial compensation but are judged for selling the returned object.
Another possibility is that the person who received the compensation after the war may only be distantly related to the current claimant, and perhaps only by marriage.Footnote 75 The direct family line may have ended with the compensation never received by the current claimant. It would be inconsistent with a just and fair solution for the current claimant to be required to withdraw their own money, that is in no way related to the compensation, to have the object returned to them.
Difficulties in valuing works of art raise yet more concerns on the practicality of this approach. There is a clear distinction between financial value and emotional value – some family members may have initially accepted the financial value, perhaps because they had no emotional attachment to the object. That does not mean other family members felt the same. Additionally, the financial value of the work may have changed significantly in the years between the postwar compensation and today. What the work was worth then may be more or less than today, and therefore the compensation received would not reflect the value the work has today. This could result in a situation where the claimant must return a sum which is worth far more than the painting at this point, an outcome clearly at odds with a just and fair solution. Although the value for most paintings has likely increased, making that situation rare, this possibility demonstrates the pitfalls of these solely financial considerations. Another version of this concern played out in the German claim of Heirs of the Salomon family v City of Gelsenkirchen,Footnote 76 wherein the family had offered to compensate the city for the purchase price. In response the city demanded a percentage share of the increase in the painting’s value if the family subsequently sold the painting. This request was ultimately rejected by the Advisory Commission but shows the attitudes of some of the parties involved.
Finally, it must be highlighted that postwar claimants had no reason to believe they would ever find their lost paintings again, let alone have them returned. It is unreasonable to expect refugees in a new country with little, if any, financial security and no reason to expect the return of their objects to have held on to that compensation. To do so would be to expect them to have rejected the money in case their descendants could not afford to repay it in 70 years, on the small chance the painting was found. In most cases, the compensation received would not have sat in a bank account, waiting for the day that a lost object was found. It would have gone toward trying to rebuild a life. Expecting otherwise is unreasonable and not compatible with a just and fair solution. The context of the postwar period must be taken into account; the focus of the events was still the war, rather than the genocide. The extent of the suffering was decades away from being recognized.Footnote 77 It would not have been unreasonable of the victims to assume that no attempts would have been made to find the painting or to restore their ownership. Such an expectation is an unrealistic separation of the claim from its historical context.
While this exploration of a condition precedent is of only the Nazi-era context, these problems, or similar, can be found in other contexts. Focusing on the financial value of cultural property presumes the possibility of balancing the ledger, fundamentally misunderstanding the nature of the dispossessions, of cultural property, and of a community’s desire for return.
Imposing Conditions on a Rightful Owner
The goal of these restitutions and repatriations is understood as facilitating the return of cultural objects to their “true owners and users.”Footnote 78 Whether the return is justified by an acknowledgment of the rightful ownershipFootnote 79 of the community in a moral or legal sense, the point is the same. It simply does not make sense for a party not considered to be the true owner to impose conditions on the party that is considered the true owner. The problems with conditional return and its recommended prohibition only apply after a determination has been made as to the rightful owner. It follows that conditions may be appropriate where this determination has not been made. This nuance can be seen in cases like that from the Stern estate in GermanyFootnote 80 or for the Brill collection in Austria.Footnote 81 In those instances, there was doubt as to the rightful owner, and as a result a condition was made of the restitution regarding sales and transfers, respectively. Those circumstances are not the same as where the rightful owner has been determined and therefore ought not to have conditions imposed.
In 1989, the New York State Museum returned 12 wampum belts to the Onondaga nation of the Iroquois (Haudenosaunee) Confederacy.Footnote 82 This return was conditional. The museum insisted the Onondaga Nation establish a museum to preserve the belts to the same level as the state museum.Footnote 83 The wampum belts were later noted as examples of “objects of cultural patrimony.”Footnote 84 By definition, an object of cultural patrimony could never have been legally owned by the museum, as it could not have been legally alienated by the tribe. The use of conditions, despite the museum not having any proprietary interest in an object of cultural patrimony, demonstrates the disparity of power and control between claimant and respondent, here between museums and tribes.
It is the context of the dispossessions and contemporary possessions that make conditions inappropriate here. Not all conditional transfers are as problematic, in the cultural context or more broadly. It is relatively common practice for gifts to museums to be made alongside conditions, for example the Turner bequest.Footnote 85 These are distinct from the transfers discussed here. In a standard property transfer, there is no doubt of the transferor’s ownership or rightfulness of their possession. With absolute ownership of an object, they are free at the point of transfer to impose any conditions or restrictions on what happens to that object. In contrast, return is recommended by a panel or mandated by the law in circumstances that acknowledge the rightfulness of the claimant’s ownership and the illegitimacy of the institution’s possession. In that circumstance, neither the institution nor the third-party panel has the absolute ownership to justify the imposition of conditions on someone else, particularly when that someone else has been found to have either moral or legal title.
Conditional return alongside explicit recognition of a tribe’s ownership is illogical. In no other context would a party – not having legal ownership of an object – be able to impose conditions on a party with exclusive legal ownership of said object, demonstrating the extent of the dominance of settler institutions in a settler-colonial society. To impose conditions reflects the deeply unequal power dynamics and control that the settler state and institutions have over Indigenous cultural heritage.
The Continuation of Control
To impose conditions reflects the dominant power position held by the state, its institutions, its decision-making bodies, and affiliated expertsFootnote 86 generally, as well as their dominance over heritage and heritage discourses. Smith and others have long observed that there are dominant discourses surrounding heritage that reinforce particular values, interests, and positions of power.Footnote 87 This has been termed the “authorised heritage discourse” (AHD).Footnote 88 Historically the roles of expert and caretaker have been assigned to museums who are considered the “spokespeople” for their collections and entrusted with a moral responsibility to care for and “preserve” heritage.Footnote 89 Claimants, whether individuals, families, or communities, in these cases are frequently disadvantaged groups (having historically suffered significant persecution). These claimants are going up against the state or other powerful institutions with superior legal and financial resources.
Issues of power and control are particularly clear when it comes to conditions subsequent, conditions that mean the claimant’s behavior is controlled even after the objects are returned. This section will discuss examples from Nazi-era claims, as well as claims from Indigenous groups, to fully underscore how these conditions can enforce the already imbalanced power dynamics at play.
Conditions subsequent can help prioritize return, and they often work in tandem with creative solutions, such as long-term loans and replicas.Footnote 90 In the Nazi-era context, Germany has utilized innovative recommendations including high-quality replicas or other creative object-specific stipulations. While these more flexible outcomes can assist in complex cases, making return conditional does not push back against power imbalances (structural or financial) between the parties. Instead, the possessor-institution asserts their dominant position by requiring something in exchange for the object. The benefits of flexibility and creativity that some conditions subsequent bring can be achieved in a less problematic way. Solutions like loans and replicas could form part of the agreement without being conditional to the return of the object. A nonconditional recommendation was used in a Dutch case wherein the hope that the claimant-heirs would inform other affected parties of the restitution was mentioned in the explanatory notes but did not form part of the formal decision.Footnote 91 Utilizing this method would ensure that the claimant freely consents to the creative solution, since the object’s return is not dependent on the claimant’s agreement to the additional outcome. The focus could then be on strengthening an ongoing relationship between the parties – a relationship of collaboration as opposed to the imposition of conditions.Footnote 92
The emphasis that Western collection standards place on preservationFootnote 93 can come into conflict with the purpose for which Indigenous cultures created the objects in question. Museums and museum workers often see preservation as one of their duties,Footnote 94 and therefore being asked to deaccession an item – particularly with the knowledge it will not be preserved – can cause friction.Footnote 95 The Zuni Ahayu:da are one such example. Each year, the leaders of the Deer and Bear clans create a sculpture of the twin gods – the Ahayu:da, Uyuyewi and Ma’a’sewi. The newly sculpted Ahayu:da then replace last year’s Ahayu:da, who are retired and left to return to the earth through disintegration.Footnote 96 Ahayu:da were taken from their shrines, both purposefully and with full knowledge, to sell to the museums under a mistaken belief they had been discarded.Footnote 97 Zuni curator and archaeologist Edmund Ladd stated, “everything for ceremonial, religious and ritual purposes that my culture makes is meant to disintegrate … to go back into the ground. Conservation is a disservice to my culture.”Footnote 98 Possession by museums of Ahayu:da is in direct violation of the intentions for the object upon its creation.
The Denver Art Museum felt they could not return the Ahayu:da to the Zuni without a commitment from the Zuni to prevent the Ahayu:da from being stolen again.Footnote 99 The museum and the Zuni worked together in creating a security facility for the returned Ahayu:da. This facility was designed to prevent theft while exposing the Ahayu:da to the elements, thereby allowing them to disintegrate into the earth undisturbed. This was a mutually beneficial agreement between both parties and guided by their own values. However, it still raises issues of conditional return. The Denver Art Museum recognized the Ahayu:da as being communal property and therefore incapable of having been legally taken from the Zuni. As with the return of the wampum belts, the museum still considered itself able to set terms in the return of the Zuni’s legitimate property – to impose a condition on the rightful owner. The Denver Art Museum acknowledged itself as being in the possession of what had to have been stolen property – and yet return of said property was made conditional on the Zuni taking action to prove they were responsible enough to possess and protect their own property. This kind of condition is grounded in the racist colonial idea that Indigenous peoples are not capable of looking after heritage and need help from the “experts.”Footnote 100 The framing here places fault with the source community and not with the thief or the players in the art market (including museums) who provide demand for these objects. Developing a more secure facility to prevent theft could have been done without it being a condition of the return and entrenching colonial power imbalances.
Conditional return, and in particular conditions subsequent, allows the state, third-party decision makers (in the case of Nazi-era claims), and possessor institutions to maintain control over the heritage of others. The benefits and advantages of conditions subsequent, namely the flexible outcomes and ongoing partnerships, can be achieved without making return conditional on them. The state or possessor institutions continuing to maintain control over the life of an object and the choices of its community as a condition of the return is inappropriate, ill-fitting with property law as a whole, and in some circumstances can indicate a belief that it is the museum that is the expert and best placed to hold the object. Whether Nazi-era dispossessions, settler-colonial dispossessions, or another cultural dispossession context entirely, these claims are not standard property disputes and ought to be governed by different standards and practices.
Covert Conditional Return
Having established that explicit conditional return is problematic, discussion now turns to covert conditional return. Covert conditional return refers to conditions imposed, often through pressure and structural imbalances, but not explicitly acknowledged as being required for an object to be returned. Their secretive nature makes these conditions more nefarious and more capable of reinforcing power imbalances between possessor institutions, the state, and claimants. Nowhere are these power imbalances clearer than in settler-colonial societies where Indigenous groups are subsumed under the umbrella of the colonizing state. The examples drawn on here are US Indigenous claims. Using three examples of covert conditional return, this article demonstrates the continued power the settler state has over the process of cultural property return. The first of these is the conditional return based on the acceptance of the expertise of those in power. Second is the acceptance of the authority of those in power. These covert conditions serve to reinforce the settler power imbalance and ensure the continued political and cultural control of the settler colonial framework. The third condition is the revelation of traditional and/or sacred knowledge under the guise of evidence to legitimize the claim. This condition ensures the institution receives value in exchange for the return.
Acceptance of Expertise
The Native American Graves Protection and Repatriation Act (NAGPRA) is the legislation governing the return of Native American cultural property within the United States. Under this framework, Indigenous communities are able to make claims for the repatriation of five categories of cultural object: human remains, associated funerary objects, unassociated funerary objects, sacred objects, and objects of cultural patrimony.Footnote 101 “Cultural affiliation” must be established between the claimant tribe and the object before repatriation can happen. Decisions as to categorization and cultural affiliation are ultimately made by the possessor institution – whether a museum or federal agency. Colwell observes, “such powers, sanctioned by US law, ultimately serve to reinforce – rather than rearrange – a colonial power structure set in place more than a century ago.”Footnote 102
To facilitate a return, tribes may be expected to accept whatever categorization an institution makes, even if they disagree with it. The stone T’ixwelátsa statue was claimed in a joint request as both human remains and an object of cultural patrimony.Footnote 103 According to tribal folklore and oral traditions (forms of evidence accepted and considered to have equal weight as any other under NAGPRA)Footnote 104 the statue is the remains of an ancestor (T’ixwelátsa).Footnote 105 Despite the legitimate evidence provided, the museum refused to return it as human remains and would only make the return as an object of cultural patrimony.Footnote 106 Although T’ixwelátsa was returned, it was done so on the museum’s terms and according to the evidence and worldview they adhere to. For a community to make claims under the NAGPRA, they must operate in a framework in which the possessor institution has the authority to decide what their culture and cultural objects are and whether they are sufficiently affiliated with the tribe in question. Accepting this expertise is a condition of the return of the cultural objects.
Acceptance of Authority
Only federally recognized tribes are able to access the NAGRPA framework and make claims for their ancestral remains and cultural property. This restriction forces a covert condition for the return of the cultural property; tribes must accept the authority of the federal government by participating in the Federal Acknowledgment Process (FAP). FAP is the “administrative process by which petitioning groups that meet the criteria are given Federal ‘acknowledgment’ as Indian Tribes and by which they become eligible to receive services provided to members of Indian Tribes.”Footnote 107 In this process, the federal government “has the authority to make the decision whether to acknowledge Tribal existence and establish a government-to-government relationship or to deny acknowledging a petitioning group as an Indian Tribe.” This language from the Bureau of Indian Affairs website clearly expresses its belief that the federal government has the power and ability to recognize a group as an Indian tribe or not. Under Cherokee Nation v. Georgia (1831),Footnote 108 federal recognition means tribes enter a relationship of “domestic dependency” with the United States. There are currently 574 federally recognized tribesFootnote 109 and several hundred non-federally-recognized tribes.Footnote 110
Federally-recognised nations receive many advantages, including qualifying for particular benefits, being eligible for cultural property return, and generally being considered sovereign over their own lands and citizens. That being said, the requirements for recognition and the benefits that follow are on the terms of the Federal Government;Footnote 111 the terms of the coloniser. Non-federally recognised tribes continue to suffer from impacts of colonialism (i.e., health, education, crime), without the benefits that would come from recognising the coloniser. Taiaiake Alfred has pointed out that even the idea of ‘sovereignty’ in relation to nation states is part of a Western world view, at odds with an Indigenous belief system.Footnote 112 He observed ‘We already are sovereign in the philosophical sense, so to reorient ourselves in order to enter a form of relationship with a state, we have to sacrifice part of who we are’.Footnote 113 To require the sacrifice of identity in order to have cultural heritage returned nullifies any symbolic, healing, or reconciliatory benefits that return may have otherwise facilitated.
Concerns of identity and performed authenticity further demonstrate the issues with dominant discourses and the presumed authority and expertise of the colonizers. Writing on the experience of a nonrecognized tribe, the Brothertown Indian Nation, Cottrell observes “authenticity is determined comparatively as an idealized sense of what it means to be Indian rather than what it means to be a Brothertown Indian.”Footnote 114 She concisely summarizes the “irony of the presumed needs of tribes to perform an idealized authenticity for a non-Native audience of risk material values such as repatriations’.Footnote 115 Once again, to have to perform and sacrifice authenticity to have cultural heritage returned negates the symbolic and healing benefits of return.
The covert condition of federal recognition is clear in NAGPRA. NAGPRA is restricted in its application; only federally recognized tribes are able to make claims under NAGPRA for the return of their cultural property and the remains of their ancestors. Nonrecognized tribes are permitted to work with recognized tribes to make claims as part of a joint request for repatriation. Since cultural affiliation cannot be established with non-federally recognized tribes, not only are these objects not returned, but they may be returned to a different – federally recognized – tribe.
Incentivizing tribes to form these “domestic-dependent” relationships with the federal government in order to facilitate cultural property return is a continuation of the colonial mission and framework. Only assimilation into the framework of federal recognition allows the tribe to gain the standing necessary to utilize the NAGPRA process. This required assimilation can be seen as another attempt to “civilize” Native Americans. Indigenous communities in the United States must accept a relationship of “domestic dependence” before being able to access NAGPRA and claim their objects back. Accepting dependency and recognizing the sovereignty and authority of the federal government become conditions for an Indigenous community to claim the return of their cultural objects.
Traditional and Sacred Knowledge
Another covert condition is the revelation of traditional or sacred knowledge in exchange for the return of Indigenous cultural property. In February 2021, the Association on American Indian Affairs (AAIA) issued a public letter to the Harvard Peabody Museum,Footnote 116 highlighting what they held to be a failure to comply with NAGPRA. Among other problems, the AAIA stated that “Tribes have reported that Harvard Peabody will continue to refuse to make a determination to affiliate and repatriate, and continue to ask for more and more information.”Footnote 117 This is in direct conflict with the legislation that states cultural affiliation is shown by a “preponderance of the evidence”Footnote 118 and the regulations that state “cultural affiliation does not require … additional research”Footnote 119 and is not “precluded … because of the reasonable gaps in the information available.”Footnote 120
Colwell points out that requesting further evidence from tribes, as the Harvard Peabody was accused of doing, can require the revelation of sacred knowledge.Footnote 121 In explaining the significance of an object, tribes and tribal representatives may feel pressured to reveal this knowledge in the hope of a return. Colwell quotes Ramon Riley, an Apache traditionalist, as saying, “I never show it [a medicine bag] to anyone, but because the museum wants more information, that’s why I hope the holy people will forgive me for doing this.”Footnote 122 Information became a condition of the return. In this instance, Riley felt required to provide this information not only to the museum but to the NAGPRA Review Committee who were hearing the dispute. This is indicative of a structural problem, the consequence of not accepting Indigenous communities as the experts on their own culture. Under NAGPRA it is the possessor-institution that categorizes an object and determines its cultural affiliation, and yet these institutions are not necessarily best placed to do so. It is the community that is the expert on the object in question. Requiring a community to share sacred knowledge in exchange for the control of objects that originated in that community serves to uphold settler colonialism and its power imbalances. It has further been reported that some tribal members “perceive[d] NAGPRA as yet another vehicle through which predominantly white academic and museum communities can elicit more cultural knowledge from tribes.”Footnote 123 This demonstrates the lack of trust some stakeholders have in the process as well as the continued dominance and control that the settler state and its institutions have over the process. While updated NAGPRA Regulations were introduced in December 2023, their potential for change is limited by the text of the act itself and the sociolegal context they operate within.
Whether public or private bodies, possessors have the power to control not only the object but the knowledge associated with it. The sharing of knowledge becomes a condition for the return and ensures the institution receives value in exchange for the return. The prevalence of this problem, the structural entitlement of possessors, demonstrates the deeply held belief that they ought to receive something in exchange for any return. The possessor institution acts as a gatekeeper, requiring the code (sacred knowledge) in order for the tribe to access the object.
By illegitimately requiring the provision of additional information, the possessor institutions establish a covert condition of return. This is particularly nefarious when possessor institutions use their dominant position of power to pressure claimants to reveal sacred knowledge. However, requiring a claimant to provide additional information of any kind, sacred or not, is still a form of conditional return. This may not be illegitimate in every framework, as it is under NAGPRA, but regardless must be recognized as the conditional return that it is.
The hidden conditions enforced in claims for cultural property reflect the structural power imbalances that often exist in contexts of historical persecution. These covert conditions reflect a belief that those in power are entitled to receive something of value (the acceptance of their expertise, their authority, or the provision of knowledge) in exchange for returning cultural property. Bringing these covert conditions into the light is the first step in ensuring efforts are focused on the victims and righting the historical wrongs, rather than balancing contemporary interests and protecting those with power.
Conclusion
The worrying lack of investigation into conditional return in the literature has allowed power imbalances and structural inequalities to flourish. By not only highlighting the problems with classic conditional return but unpacking the covert forms of conditional return, this research is the start of a more critical approach. There is a fundamental, perhaps willful, ignorance at work of the impact of the persecutory context and its contemporary consequences, clearly demonstrated by a belief in the possibility of balancing the ledger.
To achieve the goals of a just and fair solution, there must also be an understanding and acceptance of the historical and contemporary power imbalances between the parties and the acceptance of community claimants as the experts on their own culture. As it stands, covert conditional return instead further enforces those power imbalances while obscuring the true nature of a return. Both forms of conditional return reflect the belief that a just and fair solution requires the possessor to receive something in exchange for making the return, a belief the ledger to be balanced is between the two parties. Instead, the ledger in need of balancing is for the victim and their heirs alone. Understanding the nobility, as well as the impossibility, of this goal ought to be a guiding principle in these types of cultural property claims. This change in perspective will help in rebalancing power dynamics, righting historical wrongs, and encouraging dialogue and healing. Continuing to utilize conditional return risks all those goals.
To remove either type of conditional return would require a significant change in the culture, a change only likely to occur with a more nuanced understanding of the inappropriateness and impracticality of conditional return. With its more overt nature, classic conditional return could be more easily removed from our current return practices. Taking inspiration from the new Best Practices,Footnote 124 museum and state policies, international and national ethical guidelines, and perhaps even legislation could all advise against repaying compensation and clarify the goal is to achieve justice for the victims. A prohibition on conditional return unaccompanied by an increase in understanding and change in the culture will not succeed. While limited in application to the Nazi-era context, the 2024 Best Practices indicate that not only is a change in the culture possible, but it may already be occurring. Removing covert conditional return from common practices is likely to prove more difficult as it requires uncomfortable introspection from those in dominant positions of power. However, it is a necessary first step in rebalancing power dynamics and righting historical wrongs. This kind of introspection as to contemporary power dynamics and the ongoing protection of dominant interests is necessary in cultural property return, and heritage protection more generally.
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