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Heading Home: French Law Enables Return of Maori Heads to New Zealand

Published online by Cambridge University Press:  21 February 2011

Robert K. Paterson
Robert K. Paterson
Affiliation:
University of British Columbia
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Extract

New Zealand claims for the return of preserved tattooed Maori heads held by foreign institutions have revisited complex legal, ethical, and cultural questions surrounding human remains in museum and other institutional collections worldwide. Recent legislation in France that facilitates the return of Maori heads in French museums represents a further stage in this ongoing story.

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Type
Case Notes
Information
International Journal of Cultural Property , Volume 17 , Issue 4 , November 2010, pp. 643 - 652
Copyright
Copyright © International Cultural Property Society 2010

1. INTRODUCTION

New Zealand claims for the return of preserved tattooed Maori heads held by foreign institutions have revisited complex legal, ethical, and cultural questions surrounding human remains in museum and other institutional collections worldwide. Recent legislation in France that facilitates the return of Maori heads in French museums represents a further stage in this ongoing story.

The history of the collecting of preserved Maori heads (now usually called toi moko by Maori) is complicated by inaccuracy and a simple lack of reliable information, which makes it difficult to draw firm conclusions.Footnote 1 It appears that the first documented acquisition of a head by a European was by Joseph Banks in 1770, on James Cook's first voyage of discovery. Of his visit to Queen Charlotte Sound in January, 1770, Banks wrote:

One I bought tho much against the inclinations of its owner, for tho he likd the price I offerd he hesitated much to send it up, yet having taken the price I insisted either to have that returnd or the head given, but could not prevail untill I enforc'd my threats by shewing Him a musquet on which he chose to part with the head rather than the price he had got, which was a pair of old Drawers of very white linnen.Footnote 2

The practice of preserving heads was apparently widespread in Cook's time and involved heads of both esteemed tribal members and enemies.Footnote 3 The ensuing decades in the history of New Zealand were marked by ongoing conflict between Maori and Europeans and a prevailing climate of lawlessness. The introduction of guns and ammunition by Europeans led to an increase in the production of heads, which became valuable currency. This resulted in an 1831 proclamation by governor Ralph Darling of the colony of New South Wales, seeking to bring an end to trade in heads.Footnote 4 Subsequently, a £40 fine was imposed on anyone importing a head into New South Wales.

After about 1820, trade in heads led to hundreds of examples coming into the hands of Western museums and collectors. In many instances these were heads of slaves who were first tattooed so as to have heads that could later be sold. At the start of the twentieth century, there were Maori heads on open display in dozens of museums in New Zealand and elsewhere. Until the early 1980s toi moko also regularly appeared for sale at leading auction houses in the United Kingdom and other places.Footnote 5 One of the most significant indicators of changing attitudes was a 1988 decision of the High Court of New Zealand, Re Tupuna Maori, that granted probate of the estate of a deceased Maori whose head had been consigned for auction in London.Footnote 6 The intention of the applicant (the president of the New Zealand Maori Council) had been to use the authority granted (letters of administration) to retrieve the head from England. This proved unnecessary when the head's English possessor agreed to return it voluntarily to New Zealand. Even before this case, leading auction houses had declined to accept consignments of Maori heads for sale, and many museums, including all in New Zealand, had withdrawn them from public display.

Source: Major-General Robley, Moko; or Maori Tattooing (1896), page 171.

Starting in the 1990s there were concerted efforts to recover heads from public institutions outside New Zealand. It is these initiatives that eventually led to the passage of the new French law. In 2003, New Zealand established a policy regarding the repatriation of Maori ancestral remains (the Karanga Aotearoa Repatriation Program) and appointed the Museum of New Zealand Te Papa Tongarewa (“Te Papa”) its agent to carry out this mandate.Footnote 7 The position of Te Papa is that Maori ancestral remains are not considered part of the museum's collection but are “remains of ancestors to be treated appropriately at all times.” As a result of this and earlier initiatives, nearly 360 Maori ancestral remains (including toi moko) have been returned to New Zealand since 1987. Returns have occurred from some 13 foreign countries and 55 different institutions. Te Papa currently holds approximately 85 toi moko. It has been suggested that there are possibly at least the same number of toi moko still remaining in institutional collections outside New Zealand, and repatriation efforts continue.

The informal process New Zealand is engaged in should be seen against the background of developing international and national laws surrounding ancestral remains in institutional collections.Footnote 8 The New Zealand court's ruling in the Tupuna Maori case is a stark reminder of the legal difficulties of effecting repatriation claims across national boundaries. Apart from almost insurmountable evidentiary and other procedural issues, there is the general principle of (common) law that no person can claim property (title) in human remains.Footnote 9 With few reported court decisions, museum practices and codes of ethics have assumed enhanced significance.Footnote 10 At the domestic level, the United States has mandated the return of Native American human remains (held by federal agencies and institutions receiving federal funding) pursuant to the Native American Graves Protection and Repatriation Act.Footnote 11 Laws like this, and other international legal developments, such as the UN Declaration on the Rights of Indigenous Peoples,Footnote 12 can be used to support the idea that the return of ancestral remains to source communities, while perhaps not a legally enforceable right, is at least consistent with the emerging human rights of indigenous peoples under international law.Footnote 13

2. THE MAORI HEAD IN ROUEN

The example of an attempted repatriation that directly led to the new French law involved an agreement by the mayor of Rouen to return to New Zealand a toi moko in that city's Museum of Natural History. The mayor's decision was based on an initiative by Te Papa. The head had been in the Rouen museum's collection since 1875. Before it could be returned, however, the French Ministry of Culture intervened to prevent the transfer on the basis that it was not permissible under French law.

The notion of inalienability is a concept surrounding museum collections in France and other European countries. It dates from the Enlightenment when the concept of inalienability that had previously applied to royal collections (as a result of the 1566 Ordinance of Moulins) was extended to public museum collections. Museums were seen as places that allowed for the collection and study of objects from different cultures. The inviolability of their collections was viewed as facilitating the indefinite pursuit of these objectives. Article L.451-5 of the French Heritage Code (Code du Patrimoine) provides that the collections of French national museums are in the public domain and inalienable. The first paragraph of Article L. 451-5 reads as follows:

The property constituting the collections of Museums of France belonging to state bodies is part of the public domain of those bodies and is, as such, inalienable.

In 2002, the Heritage Code was amended to allow for the removal of an object if it was first declassified by the National Scientific Commission.

In the Rouen case, the prefect of Seine-Maritime petitioned the Administrative Tribunal of Rouen for summary judgment halting the return of the head. It was argued that the head was inalienable under Article L.451-5. The city responded that the head could not be part of the museum's collection because, under Article 16-1 of the French Civil Code, human remains cannot be subject to proprietary rights, and thus the principle of inalienability did not apply to them. The tribunal concluded that it had not been established that the head was within Article 16-1. It went on to find that under the Heritage Code the head needed first to be declassified, and that since this had not occurred, Rouen's decision to return the head was invalid.Footnote 14 In July 2008, the Administrative Court of Appeal confirmed the decision of the Administrative Tribunal based on the same analysis.Footnote 15

These rulings gave rise to extensive debate about the state of French law in relation to repatriation requests from outside the country. These responses included an international symposium at the Musée du Quai Branly in Paris in February 2008 entitled “From Anatomic Collections to Objects of Worship: Conservation and Exhibition of Human Remains in Museums.”Footnote 16 This conference was opened by the French Minister of Culture and was a forum for a wide-ranging debate on the issue of repatriation and museums generally. It ended with a proposal that a permanent working group be set up to mediate repatriation claims involving human remains in French public collections. Subsequently, President Nicolas Sarkozy voiced support for the return of the Maori heads in French museums.

3. THE NEW FRENCH LAW

There had been a single French precedent for the Rouen situation in 2002, when the remains of Saartjie Baartman (known pejoratively as the “Hottentot Venus”) were returned to South Africa at the request of President Nelson Mandela. This return was enabled by an individual piece of French legislation.Footnote 17 The Rouen case brought into consideration a whole category of ancestral remains. It is estimated that there are approximately 16 toi moko in French institutions. Most (some seven) are at the Musée de Quai Branly, and others are, besides Rouen, in museums in Dunkerque, La Rochelle, Lille, Lyon, Marseille, and Nantes. There are also some in university collections, such as at the University of Montpellier, which has two toi moko.

On February 20, 2008, Catherine Morin-Desailly (the senator for the Department of Seine-Maritime, which includes Rouen, as well as the deputy major of that city) introduced a bill in the French Senate requiring the return of all toi moko in French museums to New Zealand. The bill was passed by the Senate on June 29, 2009. On May 4, 2010, it was passed into law by the National Assembly with a resounding 457 votes in favor and only eight against. The law came into force on May 18, 2010.Footnote 18

Article 1 of the law states as follows:

As of the date of entry into force of the present legislation, the Maori heads kept by French National Museums (Musées de France) shall cease to be part of their collections in order to be returned to New Zealand.

The effect of this provision places toi moko in French national museums outside the principle of inalienability contained in the Heritage Code and allows for their return to New Zealand without them first having to go through a declassification process. At the time of writing, no heads had been returned pursuant to the new law.

Most of the provisions contained in the new law comprise amendments to the Heritage Code concerning the role of the National Scientific Commission on Collections (La commission scientifique nationale des collections). Prior to these changes, the commission had never made a declassification ruling. This fact seems to have contributed to a feeling of frustration with the failure of the commission to establish doctrine and to a desire to put a stop to the need to make new laws for each separate case. The new law establishes a commission with revised membership in the case of declassification applications. The former commission was composed almost entirely of museum directors, curators, and academics. The members of the new commission include state and regional representatives, a senator, and a member of the National Assembly, as well as professional curators and other qualified persons such as art historians and philosophers. One objective in establishing the new commission is to broaden the human resources available to address the complex political and ethical issues surrounding declassification. As a result of the establishment of the new commission no specific law making an inroad into the inalienability principle, such as that concerning Maori heads in French museums, will ever again be necessary. Museum requests concerning declassification will now be the sole responsibility of the new commission with its revised membership. To ensure that the commission will meet this responsibility, Article 4 of the new law requires that it report to Parliament concerning its declassification policies by May 18, 2011. An objective of these new declassification provisions appears to be to engage the traditions of the Enlightenment with contemporary pressures, such as culture-based claims by communities of origin for the return of objects.

4. CONCLUSION

The unwillingness of the French courts in the Rouen case to allow Article 16-1 of the Civil Code to override the principle of inalienability is consistent with concerns elsewhere about the continued viability of the “no property” rule regarding human remains.Footnote 19 In English law the principle appears to have resulted from a growing aversion to slavery and the concept that human beings could be property.Footnote 20 Over the past century, courts have developed several exceptions to the rule. One of the best-known of these is an Australian case upholding proprietary rights in a preserved two-headed foetus based on the “work and skill” that had transformed the remains.Footnote 21 Meanwhile, advances in biomedicine have accelerated the justification for recognizing property rights respecting stem-cell research and cloning. It has been argued that failure to accord such recognition may be an incentive for unlimited exploitation of human tissue for profit.Footnote 22

Once the “no property” rule is abandoned, the vexing issue of whether human remains in museum collections need be treated differently than other material disappears. The only question becomes whether or not the return of the material at issue is legally possible, and if so, when should such returns take place? The new French law resembles a recent UK law allowing the return of Nazi-era objects from museums in that country.Footnote 23 Both laws only remove legal barriers to returns and do not explain when such returns are legally necessary and who has standing to request they take place.

It may be useful for the newly established French commission to study the reports of the UK Spoliation Advisory Panel.Footnote 24 These reports are not legally binding, but because they are based on moral and ethical as well as legal considerations, they furnish a level of flexibility that cannot be achieved through litigation, including recommending alternatives to return such as the making of ex gratia payments and the enactment of new legislation. In the case of toi moko in foreign public collections there is little possibility of Maori being able to sue successfully in foreign courts to recover these objects. However, when alternative procedures to litigation are in place, such as now exist in France and elsewhere, there is a greater possibility that the complicated dimensions of repatriation requests will be properly considered and appropriate results achieved. These may include a willingness to view requests for the return of human remains more favorably than requests for the return of other sorts of material. Events bear this out insofar as the large number of toi moko returned to New Zealand from foreign institutions suggests that these institutions see themselves as morally and ethically obliged to carry out returns, even if no concrete legal obligation exists.

APPENDIX

Footnotes

1. The term “mokomokai” (sometimes spelled “mokamokai”) has long been used to describe preserved tattooed Maori heads. Its use may be traced to the soldier, writer, collector, and artist Major-General Horatio Robley, who used the term in his authoritative nineteenth-century volume Moko; or Maori Tattooing. The term toi moko has now become preferred usage in New Zealand. In his 1891 work, The Maori-Polynesian Comparative Dictionary, Edward Tregear translates the word moko as “tattoo marks on the face or body.” The word toi is translated as “a chief of great power in New Zealand” and mokai as “captive, a slave.” Somewhat ironically, Robley offered to sell his own collection of some 35 heads to New Zealand in 1908, but the offer was refused, and they were subsequently purchased by the American Museum of Natural History in New York where they still reside.

2. See Beaglehole, Endeavour Journal of Joseph Banks, 31.

3. See also Yate, An Account of New Zealand, 130–131. Yate's account that the preservation of the heads of enemies was a recent custom seems contradicted by Banks's earlier experiences. With reference to Banks's account that “they told us that a few days before a canoe of their enemies had been surprizd by them and that out of her they killd 7 persons,” Beaglehole comments that “the heads of friends as well as enemies might be preserved, the former to be wept over, the latter to be reviled.” (Beaglehole, Endeavour Journal, 30–31).

4. For the text of the 1831 proclamation, see the Appendix. When this proclamation was issued, the constitutional status of New Zealand was still uncertain and it was yet to become a separate British colony.

5. See, e.g., Hawaiian and Maori Art, lots 106 and 107. At least seven heads were sold at auction in London between 1965 and 1980 at Sotheby's and Christies; see Mack, Polynesian Art, 98–99.

6. Re Estate of Tupuna Maori (unreported) (High Court of New Zealand) (Wellington, May 19, 1988); see O'Keefe, “Maoris Claim Head,” 393.

7. See www.tepapa.govt.nz/AboutUs/Repatriation; Herewini, “Museum of New Zealand Te Papa Tongarewa,” 405. Another nongovernmental repatriation initiative that continues is that of the late Dalvanius Prime, who established the Mokomokai Education Trust. See www.digitalus.co.nz. Once heads are returned to Te Papa, they are subject to specific policies affecting storage, access, and return. See Paterson, “Taonga Maori Renaissance,” 107, 132.

8. See Paterson, “Ancestral Remains in Institutional Collections,” 155.

9. See R. v. Sharpe, Dears and Bell 160, 169 E.R. 959 (1856–1857); R. v. Kelly [1998] All E.R. 741. See also Woodhead, “A Debate Which Crosses All Borders,” 317.

10. See International Council of Museums, ICOM Code of Ethics for Museums.

11. 25 U.S.C. ss. 3001–3013 (2000); see Paterson, “Ancestral Remains in Institutional Collections,” 164–167.

12. GA Res 295, UN GAOR. 61st Sess. UNDoc.A/RES/61/295 (2007). See also the Vermillion Accord on Human Remains (1989) http://www.worldarchaeologicalcongress.org/site/about_ethl.php#code2

13. See Paterson, “Resolving Material Culture Disputes,” 155, 161–165.

14. For a translation of the ruling, see Paterson, “Administrative Tribunal of Rouen,” 223. See also Amiel, “A Maori Head: Public Domain?” 371.

15. For a discussion of this decision, see Cornu, “The Human Body in the Museum,” 219, 230.

16. See Frigo, “The International Symposium,” 437.

17. Loi No. 2002–323 du 6 mars 2002 relative à la restitution par la France de la dépouille mortelle de Saartjie Baartman à l'Afrique du Sud.

18. Loi No. 2010–501 du 18 mai 2010 visant à autoriser la restitution par la France des têtes maories à la Nouvelle-Zélande et relative à la gestion des collections. The new law does not apply to heads in French university collections, which are not covered by the inalienability principle in Article L. 451-5 of the Heritage Code.

19. See Taylor, “Human Property.”

20. See Cartwright's Case 2 Rushworth's Coll 468 (1569); Catterall, Judicial Cases.

21. Doodeward v. Spence 6 C.L.R. 406 (H.C.A.) (1908).

22. In Moore v. The Regents of the University of California, 51 Cal. 3d 120; 271 Cal. Rptr. 146; 793 P. 2d 479, cert. denied 499 U.S. 936 (1991), the Supreme Court of California denied the plaintiff any right to profits resulting from the commercialization of anything developed from his body parts. Broussard J. (dissenting) attacked this approach as unfairly preventing the plaintiff from the profits made through the use of his own cells. Similarly, in 2009 a French court ordered the closure of the controversial “Our Body” exhibition in Paris on the grounds that it was “a commercialization of the body” and “an obvious offence to the respect due to the dead.” The court ignored the organizers' claims that the exhibition was scientific and educational and that individuals whose bodies were displayed had given their consent while they were alive. See Cornu, “The Human Body in the Museum,” 234.

23. Holocaust (Return of Cultural Objects) Act, 2009 (UK), c. 16.

24. See www.culture.gov.uk/what_we_do/cultural_property/3296.aspx; Palmer, “Spoliation and Holocaust-Related Cultural Objects,” 1.

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