Addressing the complexities of cultural repatriation in Canadian museums, it becomes imperative to recognize the return of Indigenous objects to First Nations communities as an act of international repatriation.Footnote 1 This international approach is beneficial because it not only acknowledges Indigenous distinctiveness and sovereignty but also aligns with international legal standards such as the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). Framing repatriation as an international process enhances the political, social, and cultural outcomes for First Nations peoples. It provides a stronger legal framework for addressing repatriation claims and fosters greater recognition of Indigenous nations as sovereign entities. This perspective builds on historical treaties and contemporary legal recognition, facilitating a more respectful and equitable repatriation process that acknowledges the unique cultural and political status of Indigenous communities. By treating repatriation as an international issue, we can promote a deeper understanding of Indigenous sovereignty and ensure that repatriation efforts are more effective and culturally sensitive. This perspective acknowledges the distinct cultural sovereignty of these communities and helps to redefine our understanding of Indigenous heritage, sovereignty, and repatriation within the national context of Canada.Footnote 2
The importance of recognizing Indigenous sovereignty and distinct nationhood is underlined by various legal frameworks, including UNDRIP and Canada’s Truth and Reconciliation Commission’s (TRC) Calls to Action. These frameworks emphasize the rights of Indigenous peoples to maintain, control, and protect their cultural heritage and reinforce the nation-to-nation relationship between the Canadian government and First Nations.
A noteworthy example, which aligns with these principles, involves Canada’s largest ethnographic museum, the Royal Ontario Museum (ROM) and the Rainy River First Nations (RRFN) Anishinaabe community. The repatriation of human remains from the ROM, based on cultural affinity, exemplifies the practical application of these legal standards. Located in Toronto, the ROM is one of the largest museums in North America, recognized for its extensive collections and research. In its Repatriation of Human Remains of the Indigenous Peoples of Canada Policy, it states that it will consider repatriations based on cultural affinity and “refers to a relationship of shared group identity which can be reasonably traced historically or prehistorically between a present-day Indigenous community and an identifiable earlier group.”Footnote 3
In Northwestern Ontario, the RRFN oversees the Kay-Nah-Chi-Wah-Nung Historical Centre (Manitou Mounds), an area with ancient burial mounds dating back 2000 years,Footnote 4 created by the Laurel and Blackduck peoples, ancestors of the Anishinaabe.Footnote 5 Regarded as sacred by the Anishinaabe, the mounds were disrupted by ROM archaeologist Walter Kenyon’s excavationsFootnote 6 from 1950 to 1970, threatening their integrity. In 2016, following the Truth and Reconciliation Commission, the ROM and RRFN began repatriating around 100 sets of human remains and 5,000 artifacts to their original context, culminating in a ceremonial reburial that emphasized the cultural significance and agency of the RRFN.
In a subsequent press release, the ROM articulated its commitment to fostering a sustainable relationship with the RRFN:
This project and the long-term relationship that is being forged between the ROM and RRFN are being built on a foundation of trust and transparency. Archaeology and the study of First Peoples within Canada have a history of being one-sided. It is hoped that these steps, in line with the Truth and Reconciliation Commission of Canada’s Calls to Action, will begin a healing process, which will lead to an increase in community-led projects and the diversification of those who take part in the care of cultural collections. Footnote 7
This relationship acknowledges the complex history of museum practices and the evolving roles that museums and Indigenous communities play in cultural preservation and diplomacy. Museums have historically been sites of both preservation and cultural interaction, influencing and being influenced by the communities they engage with.Footnote 8 This dynamic interaction demonstrates the importance of considering repatriation not only as a legal or procedural act but also as a culturally and diplomatically significant process. A critical perspective on this process exemplifies an aspect of internationalization. The governing body presiding over the ROM, a Canadian federal institution, is markedly different from the Indigenous governance structure of the RRFN, reinforcing the notion of these entities operating as two disparate “nations.” This underlines that repatriation is not merely a domestic issue but one with an international aspect.
In some cases, cultural objects must be returned to specific individuals within the First Nations community based on their traditions and laws, such as those with traditional custodianship rights or direct descendants of the original owner. This process, facilitated by the museum and the rightful individual, exemplifies nation-to-nation repatriation respecting Indigenous traditions rather than community-wide returns.
Adopting the discourse of “nations brings technical, political, social, and cultural expectations, questioning whether these social assemblages must function like “states” in a Western legal and political context. Additionally, some objects are returned to individuals or family groups, not to a “nation” or “community.”
An example is the ROM repatriating objects to the descendants of the Cree leader Poundmaker in February 2023. The chief’s pipe and saddlebag were returned to his great-great-granddaughter, respecting Poundmaker Cree laws, which mandate return to direct descendants.Footnote 9 The Poundmaker Cree Nation, a Cree First Nations band government, operates its own school, health services and has its own legislation and policy, underscoring its sovereignty and self-governance.Footnote 10 This example highlights how repatriation respects specific Indigenous traditions and regulations.
However, it is important to note that repatriation does not always result in “spiritual vitality,” “reconnection,” and “reverence.” The process is often complex, involving various social, political, and cultural dimensions. As highlighted by Chipangura,Footnote 11 Gibson,Footnote 12 and Batty,Footnote 13 repatriation can lead to unexpected outcomes and challenges, necessitating a nuanced understanding of its impacts. While some communities experience profound spiritual reconnection, others face practical difficulties or conflicts over ownership and the proper treatment of returned artifacts.
While investigating other instances of Indigenous repatriation, I encountered a noteworthy case from Sault Ste. Marie, Ontario,Footnote 14 when a piece of the physical geography (a large rock slab displaying an ancient pictograph) was taken from First Nations’ land and kept in a museum until its recent repatriation to the Temagami First NationsFootnote 15 community. The return of the historical pictograph to the Temagami First Nation serves as a compelling case study of international repatriation, although it unfolded entirely within Canada. This might seem counter-intuitive, but the explanation lies in acknowledging the intricate cultural, historical, and spiritual differences between the Temagami First Nation and the Canadian museum environment.
For 25 years, the pictograph – a 136 kg rock slab depicting three figures – resided anonymously within the Sault Ste. Marie Museum.Footnote 16 Though physically located within the same national borders, it was culturally and spiritually disconnected from its original context. Its existence within the museum was static, its cultural and spiritual agency dormant, and its role as a historical object obscured.
In 2020, through a collaborative effort involving the Temagami First Nation, Ontario Power Generation, Sault Ste. Marie Museum, and Woodland Heritage Northeast, this artifact was recognized and repatriated to the Temagami First Nation community. The journey from the museum to Bear Island, though domestic in geographical terms, was international in a cultural sense. The rock left a place where it was an object of curiosity within the museum to return to an environment where it could regain its spiritual vitality and reconnect with its home environment. This acknowledges the complex history of museums and their role in both preserving artifacts and influencing contemporary cultures and knowledge. Museum objects have not always been simply stored away but have also contributed to the development of novel cultural expressions and understandings.Footnote 17 Furthermore, Indigenous scholars argue that objects in museums can act as “cultural diplomats,” playing a significant role in fostering intercultural dialogue and understanding.Footnote 18 This perspective challenges the notion that museum objects are merely “devoid of active cultural context” and instead highlights their dynamic role in cultural diplomacy.”
The pictograph now resides in the Lakeview Gathering Place on Bear Island, a newly built community centre where it serves as a symbol of the community’s heritage. In this context, the pictograph is not just a historical artifact but a living testament to the community’s history, a participant in its cultural practices, and a vital link to its ancestral past.
The successful repatriation of the pictograph symbolizes a hopeful shift in archaeological and repatriation practices and emphasizes the necessity of recognizing the distinctive cultural identities of Indigenous communities within the larger national context.
Despite the repatriation taking place within the same country, the significant cultural shift the pictograph experienced – from being an anonymous artefact in a Canadian museum to becoming a celebrated symbol of heritage for the Temagami First Nation – mirrors the intricate dynamics typically associated with international repatriations. It highlights the need for us to redefine our understanding of repatriation, considering the significant cultural shifts that artifacts undergo when they are returned to their Indigenous communities.
The repatriation of Indigenous artifacts from Canadian museums back to their respective communities is often perceived as a domestic matter. However, this paper proposes an alternative perspective: that such repatriation should be seen as international, given the recognition of Indigenous and First Nations as separate, autonomous entities. The acknowledgement of First Nations and Indigenous communities as distinct nations, with their unique governance, culture, languages, and traditions existing long before Canada, forms the foundation of this argument.Footnote 19
The international approach to repatriation offers several key advantages over the traditional domestic framework. Firstly, it recognizes the inherent sovereignty and distinct nationhood of Indigenous communities, which aligns with international legal standards such as UNDRIP. This recognition provides a stronger legal framework for addressing repatriation claims, fostering greater respect and legitimacy for Indigenous nations as sovereign entities.
Many positive examples of repatriation have occurred without adopting an international approach. However, framing repatriation as an international issue enhances political, social, and cultural outcomes for First Nations peoples. It provides a more robust mechanism for addressing disputes and ensures that repatriation efforts are conducted with greater cultural sensitivity and respect. By acknowledging the unique governance structures and cultural practices of Indigenous communities, the international approach facilitates a more respectful and equitable repatriation process.
Furthermore, working between “nations” rather than “source communities” introduces a different dynamic in practice and outcomes. This approach emphasizes the political and legal sovereignty of Indigenous nations, which can lead to more meaningful and lasting agreements. For instance, international frameworks can provide mechanisms for arbitration and negotiation that are not available in domestic contexts, thus potentially leading to more satisfactory outcomes for Indigenous peoples.
The relationship between museums and First Nations can benefit significantly from being reframed as one between nations.Footnote 20 This reframing respects the distinct cultural sovereignty of these communities and helps to redefine our understanding of Indigenous heritage, sovereignty, and repatriation within the national context of Canada.
This notion is supported through various legal and institutional frameworks. For example, the Constitution Act of 1982Footnote 21 underscores Aboriginal and treaty rights, reinforcing First Nations’ inherent sovereignty.Footnote 22 Although controversial due to its roots in colonialism and its oppressive impact on Indigenous peoples’ autonomy, culture, and identity, and the fact that its legacy includes the creation of residential schools, restrictions on cultural practices, and issues of land dispossession, the Indian Act (1985)Footnote 23 recognizes the unique status of First Nations. Additionally, decisions such as the Sparrow Case (1990)Footnote 24 by the Supreme Court reaffirm the nation-to-nation relationship between the Canadian government and First Nations. The Royal Commission on Aboriginal Peoples (1996)Footnote 25 also lends significant weight to this argument,Footnote 26 as does the creation of the Truth and Reconciliation Commission of Canada (2015).Footnote 27
In 2016, Canada fully endorsed the United Nations Declaration on the Rights of Indigenous Peoples, where Articles 11 and 12 specifically highlight the rights of Indigenous peoples to maintain, control, protect, and develop their cultural heritage and traditional knowledge.Footnote 28 Lastly, The Royal Proclamation of 1763,Footnote 29 although a historical document, is still legally recognized and asserts a protective responsibility of the Crown towards Indigenous peoples in Canada. The proclamation recognized Aboriginal title to all lands not ceded and acknowledged a nation-to-nation relationship with Indigenous Nations.Footnote 30 This recognition helps to frame the relationship between First Nations and the Canadian state as quasi-international; an example of this can be seen in the Sioui case of 1990, where a landmark decision by the Supreme Court of Canada affirmed the rights of the Huron-Wendat Nation to practice their traditional activities on Crown land. The court ruled that the Treaty of Peace and Friendship of 1760, as well as the Royal Proclamation of 1763, still applied.Footnote 31
In examining the international dimensions of Indigenous repatriation, does the recognition of the repatriation process’s international nature inherently enhance its efficiency? While international frameworks provide a structured approach to address repatriation claims, the literature on internationalism casts a shadow of doubt on the effectiveness of judicial and quasi-judicial instruments in these matters.Footnote 32 It reveals a landscape where the rigidities of legal mechanisms often fall short in capturing the nuanced realities of Indigenous heritage and cultural sovereignty.
This critique highlights that successful repatriations often result from political agreements, like the RRFN and Temagami cases, rather than legal mandates. Negotiated outside the boundaries of international law, these cases show a level of flexibility that is uncommon in legal processes. This suggests a need to reconsider our reliance on international legal frameworks for repatriation and highlights the role of political diplomacy in securing effective outcomes.
The involvement of two states, Canada and Indigenous nations, highlights a complex interplay between national sovereignty and Indigenous rights, challenging the conventional mechanisms of addressing repatriation. This scenario amplifies the argument that while international recognition of repatriation issues is critical, its effectiveness is markedly enhanced when complemented by political understanding and agreements that respect the unique cultural and sovereign status of Indigenous communities.
First Nations’ Nation
In many parts of the world, such as in Canada and Australia, the term “First Nations” is used to describe the original inhabitants of the land before the arrival of European colonizers.
In Canada, “First Nations”Footnote 33 is used to recognize the status of Indigenous peoples as the original inhabitants of the land now known as “Canada.”Footnote 34 However, it is important to note that in Canada, not all Indigenous peoples identify as First Nations. The term does not include the Inuit or Métis people, who have their own distinct cultures, histories, and rights.Footnote 35
In Australia, “Aboriginal and Torres Strait Islander peoples” is the traditional term recognizing diverse Indigenous cultures. However, the use of “First Nations,” emphasizing sovereignty and treaty rights, has increased in recent years, including in parliamentary documents, for example, the establishment of the First Nations National Constitutional Convention and a published discussion paper produced by the Referendum Council.Footnote 36 In 2022, Minister for Indigenous Australians, the Hon. Linda Burney MP, advised the preference to use the term “First Nations people” when referring to Aboriginal and Torres Strait Islander people.Footnote 37
The Canadian Encyclopedia states that using “First Nations” recognizes and respects Indigenous peoples as the original inhabitants, acknowledging their sovereignty, unique cultural practices, languages, and land rights. This term rejects colonial terminologies and narratives, acknowledging the injustices of colonization and the resilience of Indigenous cultures and communities.Footnote 38
The Indian Act
To fully understand the contemporary context of Indigenous repatriation claims in Canada and the power and importance they hold, we must first consider the atrocities committed by the government in collaboration with Christian churches in the implementation of the Indian Act, first passed in 1876 during the tenure of Prime Minister Alexander Mackenzie. This act, sanctioned and enacted by the Parliament of Canada, facilitated the institutionalization of policies that not only regulated and administered Indigenous lives but also paved the way for the inception of the residential school system in 1883. A system enduring until very recently (1996) has had a long history of disenfranchisement, cultural assimilation, and discrimination against Indigenous peoples in Canada.
The Indian Act, despite its criticism, acknowledges the distinct status of First Nations peoples in Canada, establishing a separate set of legal, social, and political relations.
This recognition of a different status and the establishment of a separate relationship with the Canadian government could contribute to the argument that transactions between Canadian institutions and First Nations can be seen as more like international interactions rather than domestic ones. Despite its intent to assimilate, it inadvertently affirmed the First Nations’ distinct status.
Evidence of First Nations’ efforts to move beyond the Indian Act can be found in works such as Beyond the Indian Act: Restoring Aboriginal Property RightsFootnote 39 by Tom Flanagan and André Le Dressay, which advocate for the creation of a First Nations Property Ownership Act, and Away from the Indian Act - Treaty Governance at Tsawwassen First Nation Footnote 40 by Chief Kim Baird, highlighting the pursuit of self-government agreements and the establishment of independent governance structures by some First Nations communities. Here, we see the process of moving beyond the Indian Act to greater autonomy and self-governance further supports those interactions with First Nations, such as the repatriation of cultural artifacts, are international.
Notable instances of self-governance agreements in Canada include the Nisga’a Final Agreement of 1998,Footnote 41 the Cree-Naskapi Act of 1984,Footnote 42 and the Westbank First Nation Self-Government Agreement of 2003.Footnote 43 The Nisga’a Final Agreement, the first modern treaty in British Columbia, grants the Nisga’a authority over their land, natural resources, governance, and social services. Similarly, the Cree-Naskapi Act replaces the Indian Act for the Eeyou Istchee James Bay Regional Government, enabling self-rule in land management, resource allocation, governance, and local services. The Westbank Agreement focuses on land management and housing, stipulating a constitution and a community council. These agreements exemplify “inherent sovereignty,” allowing these First Nations to enact local laws, manage resources, and administer services, thus enhancing self-determination and cultural preservation.
The Truth and Reconciliation
The Truth and Reconciliation Commission 2015 has been pivotal in raising public awareness about past injustices against First Nations people in Canada, emphasizing the right to self-determination and respect for sovereignty and culture. Established in 2008 by the Canadian government following the 2007 Indian Residential Schools Settlement Agreement,Footnote 44 the TRC aimed to inform Canadians about the history and impact of Indian Residential Schools on Indigenous children and communities and to facilitate reconciliation.
The TRC’s final report in 2015 included 94 Calls to Action to address the legacy of residential schools and promote reconciliation between Indigenous people and the Canadian government. The report frequently references UNDRIPFootnote 45 calling on states to repatriate cultural artifacts to Indigenous communities, even though UNDRIP is not legally binding.
From the list of “Calls to Action”:
[…]
43. We call upon federal, provincial, territorial, and municipal governments to fully adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples as the framework for reconciliation.Footnote 46
The 43rd Call to Action specifically calls upon federal, provincial, territorial, and municipal governments to fully adopt and implement UNDRIP as the framework for reconciliation. Other Calls to Action, such as #44 and #48, reference UNDRIP in the context of renewing the nation-to-nation relationship between Canada and Indigenous peoples and implementing principles of reconciliation, respectively.Footnote 47
UNDRIP, acknowledged by the TRC’s Calls to Action, states the right of Indigenous peoples to maintain, control, protect, and develop their cultural heritage, traditional knowledge, and traditional cultural expressions (Article 31). It also emphasizes the right to autonomy and self-determinationFootnote 48 (Articles 3 and 4). Therefore, the repatriation of cultural artifacts is an exercise of these rights, and if First Nations communities are regarded as distinct nations, such transactions could be seen as occurring between different nations.Footnote 49
The TRC’s Calls to Action urge Canadian governments to adopt and implement UNDRIP as the framework for reconciliation. This includes recognition and affirmation of the rights of Indigenous peoples to their cultural heritage and the fostering of respectful relationships with Indigenous peoples. The calls lead to a deeper acknowledgement of the inherent sovereignty and autonomy of First Nations, which could, in turn, support the argument of repatriation as an inherently international issue, challenging the conventional understanding of domestic repatriation. In 2022, the Canadian Museum AssociationFootnote 50 published an updated Repatriation Toolkit that was developed in support of the Canadian Museums Association Report,Footnote 51 Moved to Action: Activating UNDRIP in Canadian Museums, where it states museums must “ensure that your policy is active and not reactive. Where possible, consult with your Indigenous partner communities and keep processes flexible to incorporate the Indigenous protocols, laws, and cultural practices within each individual repatriation or related process.”Footnote 52
Treaty Signing
“You don’t make treaties with your own citizens.”
– Joe Heath, Attorney for Onondaga First NationFootnote 53Another crucial element in the historical relationship between the Canadian government and First Nations communities is the ongoing significance of treaty negotiations. Treaties between First Nations and the British (and later Canadian) government began in the early-eighteenth century and continued into the twentieth century.Footnote 54 Historic treaties were negotiated between the government and various Indigenous nations, outlining the rights, benefits, and obligations of both parties.Footnote 55
The treaties signed by First Nations peoples in Canada are widely viewed as unfair due to a combination of factors. There was a significant imbalance of power between the First Nations and the British Crown, or Canadian government, due to disparities in military strength, economic resources, and political influence.Footnote 56 Additionally, cultural differences and language barriers between the First Nations peoples and European negotiators often led to misunderstandings, or worse, manipulation of treaty terms.Footnote 57 For example, Treaty 9 (James Bay Treaty), signed in 1905–1906, has faced criticism for using complex legal jargon that was not fully understood by the First Nations signatories, leading to an unfair agreement. One significant point of contention revolves around the oral promises reportedly made by government representatives during negotiations, which were not reflected in the written terms of the treaty. John Long writes in Treaty No. 9: Making the Agreement to Share the Land in Far Northern Ontario in 1905, an in-depth look into Treaty No. 9, how the government officials verbally promised to First Nations that they would retain the right to hunt and fish on their ancestral lands.Footnote 58 However, the written terms of the treaty restricted these rights, severely limiting First Nations’ ability to practice their traditional way of life and sustain their communities through hunting and fishing on their ancestral lands. Moreover, there was a considerable difference between the English version and the translated oral explanation provided to the First Nations, which led to misunderstandings and misinterpretations of the actual terms of the agreement. This disconnect between the oral promises and the written terms of the treaty has been a core issue in land rights and other legal disputes stemming from Treaty 9.Footnote 59 Furthermore, settler governments maintain that exclusive sovereignty was transferred to Canada through extinguishment clauses in the written agreements, while Indigenous peoples assert that, based on oral traditions, they consented to a shared stewardship of the land.Footnote 60
The definition of a treaty is “a formally concluded and ratified agreement between states.”Footnote 61 This definition can be used to support the argument that First Nations communities in Canada are distinct nations, as well as the fact that First Nations communities are often referred to as “treaty partners” in the context of the historic treaties in Canada. The signing of these treaties involved negotiations, mutual consent, and the recognition of rights and obligations on both sides. Treating First Nations communities as treaty partners reinforces their status as distinct nations and underscores the importance of their participation in decisions related to their cultural heritage and repatriation. It is important to note that Indigenous peoples often interpret these treaties very differently from the Canadian government. Some argue that they never intended to surrender their sovereignty over their lands and that many of the promises made to them have not been honoured.Footnote 62 In this context, the repatriation of Indigenous cultural artifacts can be seen as part of a broader struggle for the recognition and affirmation of Indigenous rights and sovereignty.
International Law
The application of international law to the repatriation of Indigenous objects within Canada’s borders presents intricate challenges, given the absence of a globally accepted regulatory framework. This complex legal landscape consists of a blend of international conventions, corresponding national statutes, and specific guidelines established by cultural institutions and museums. Current legal frameworks must evolve to fully embrace the cultural property indigenism paradigm,Footnote 63 which integrates Indigenous perspectives on ownership, cultural significance, and spiritual values. This paradigm shift would recognize repatriation as a process that transcends mere physical restitution, aiming to restore the intangible heritage and rights of Indigenous peoples.
One significant obstacle within the current legal framework is its non-retroactive nature. For instance, the Hague Conventions of 1899, 1907, and 1954 concerning armed conflicts, along with the 1970 UNESCO ConventionFootnote 64 and the UNIDROIT Convention,Footnote 65 exclude events occurring before their enactment, thus not mandating the return of artifacts acquired during the colonial era.
Given these legal instruments’ non-retroactivity, it is crucial to consider the legal context at the time of the objects’ acquisition. Many actions now seen as illegal or unethical were common practice in those historical periods. International laws also have scope limitations. For example, the 1899 and 1907 Hague ConventionsFootnote 66 apply only to conflicts between recognized states, not colonial takeovers or liberation wars. Before the 1949 Geneva Conventions,Footnote 67 only conflicts between recognized states were legally classified as wars, excluding colonial territories and their populations.Footnote 68
Vanessa Tünsmeyer explains in Repatriation of Sacred Indigenous Cultural Heritage and the Law how the concept of Sovereignty has been heavily debated, referencing the Max Planck Encyclopedia of Public International Law, “Sovereignty”, as a legal concept, has been and remains heavily debated. It has been described as “the supreme authority within a territory.”Footnote 69 Tünsmeyer states that Indigenous Peoples were sovereigns before colonization; that is, they were domestic sovereigns with internal and external sovereignty in accordance with their own legal traditions. They were not recognized as sovereign in the international legal order, as international law was dominated by colonizing powers with a vested interest in denying Indigenous Peoples equal status. As part of the continuing decolonization effort in law,Footnote 70 Tünsmeyer’s research, therefore, identifies Indigenous Peoples as sovereign entities who had power over a defined territory and people in accordance with their own legal traditions at the time of colonization. Using the term sovereignty to refer to Indigenous peoples serves as a reminder of the historical complexities and the ongoing need for the decolonization of (inter)national law.Footnote 71 Tünsmeyer’s exploration of the challenges and opportunities in repatriating sacred ceremonial/secret objects sheds light on the multifaceted nature of repatriation, which encompasses property interests, cultural conservation, and human rights concerns, as detailed in her study, Repatriation and Multilevel Heritage Legislation in Canada and Australia: A Comparative Analysis of the Challenges in Repatriating Religious Artifacts to Indigenous Communities. Tünsmeyer’s critical examination of repatriation practices in Canada and Australia reveals significant gaps in the legislative frameworks of both countries, particularly in their failure to adequately support the repatriation of sacred objects to Indigenous communities, underscoring a pressing need for reform in these legal and institutional structures.Footnote 72 The inefficacy of judicial and quasi-judicial instruments in facilitating repatriation processes has been a point of contention, with Alternative Dispute Resolution mechanisms emerging as potential avenues for addressing the limitations of the current legal frameworks.Footnote 73
Duncan Ivison also discusses the rights of Indigenous peoples and uses the term “quasi-international.” In The Logic of Aboriginal Rights, he applies this term to describe the complex relationship between Indigenous peoples and the state in liberal democracies. This characterization acknowledges that while Indigenous groups lack external sovereignty, they assert jurisdictional rights or political authority that are somewhat independent of the state. This notion suggests a parallel with international relations, albeit within the confines of a single nation-state, hence the term “quasi-international.” This concept is part of his broader discussion on the balance and interaction between aboriginal rights and the rights granted by citizenship within a nation-state.Footnote 74
Additionally, Karolina Prażmowska-Marcinowska’s analysis of the repatriation of Indigenous peoples’ cultural property outlines a crucial distinction between domestic and international repatriation efforts, showing the unique challenges and legal frameworks associated with each. As Prażmowska-Marcinowska observes, the classification of repatriation as either domestic or international often hinges on the location of the cultural artifacts relative to the source community and national borders.Footnote 75 However, this binary classification may oversimplify the nuanced reality faced by Indigenous and First Nations groups, who possess qualities of sovereignty or autonomy markedly distinct from the Western institutions that currently hold their cultural objects. Given these distinctions, the repatriation process should perhaps be reenvisioned as inherently international in nature, irrespective of the artifacts’ current locations. The recognition of Indigenous groups as sovereign or autonomous entities, as evidenced in Prażmowska-Marcinowska’s paper through examples of practices in the USA with NAGPRA and the repatriation of artifacts to the Sámi Museum and Nature Centre Siida in Finland, suggests a need for an international framework that acknowledges the complex interplay of legal, financial, and policy-related challenges. This reclassification not only honors the sovereignty of Indigenous peoples but also aligns with the recommendations of the Expert Mechanism on the Rights of Indigenous Peoples, advocating for a coherent legal mechanism that facilitates the return of cultural heritage directly to Indigenous communities, thus bridging the gap between domestic and international repatriation practices.
Rulings by The Supreme Court of Canada
The case of R v. Sparrow (1990) is a pivotal Supreme Court of Canada decision that reinforced the nation-to-nation relationship between the Canadian government and First Nations. Ronald Edward Sparrow, a member of the Musqueam band in British Columbia, faced charges for using a fishing net that exceeded legal limits under the federal Fisheries Act. Sparrow argued that his sustenance fishing was protected under the Aboriginal rights enshrined in Section 35(1) of the Constitution Act, 1982.Footnote 76
The Supreme Court ruled in Sparrow’s favor, recognizing that his fishing activities constituted an existing Aboriginal right protected by Section 35(1). The Court introduced the “Sparrow Test,” which requires any limitations on Aboriginal rights to be justified through the least infringing methods, fair compensation, and consultation with the affected Aboriginal group.Footnote 77 This judgment affirmed the constitutional protection of Aboriginal rights and highlighted the necessity for government consultation with First Nations, emphasizing the importance of dialogue and negotiation within their nation-to-nation relationship.
Another significant Supreme Court of Canada case is Delgamuukw v. British Columbia (1997), which further supports the argument for First Nations’ sovereignty within Canada. In this case, the hereditary chiefs of the Gitxsan and Wet’suwet’en First Nations claimed Aboriginal title to 58,000 square kilometers of land in Northwest British Columbia.Footnote 78 The Supreme Court affirmed that Aboriginal title includes the rights to use, economically benefit from, and manage the land, indicating a level of autonomy akin to sovereignty.
While Delgamuukw established Indigenous land rights as a key facet of sovereignty, sovereignty itself encompasses broader aspects such as self-governance and cultural autonomy. This case is part of a larger dialogue about recognizing First Nations as sovereign entities within Canada.
The Haudenosaunee Confederacy
The Haudenosaunee Confederacy, also known as the Iroquois Confederacy, is a political and cultural alliance of six First Nations: the Seneca, Cayuga, Onondaga, Oneida, Mohawk, and Tuscarora. Formed around the twelfth century, it aimed to maintain peace and facilitate cooperation among the member nations. Governed by a constitution called the Great Law of Peace, it has its own decision-making and has influenced American political thought, and continues to function today.Footnote 79 The Haudenosaunee Confederacy traditionally covers areas in what is now upstate New York, parts of Pennsylvania, Ohio, and Ontario, Canada. The nations have reservations or communities within these regions where they exercise varying degrees of governance and cultural practices. The Haudenosaunee (Six Nations) are a sovereign nation recognized by the USA under the 1794 treaty between the USA and the Six Nations, signed at Konondaigua by President George Washington and Secretary of State Edmund Randolph.Footnote 80 Also known as the Treaty of Canandaigua, 1794 Nation to Nation, it was one of the earliest treaties between a Native Nation and the USA. It confirmed peace with the Haudenosaunee (Six Nations), who occupied the border between the USA and British Canada.Footnote 81
Since 1932, the Haudenosaunee have issued their own passports. The Haudenosaunee Passport is a tangible expression of sovereignty and self-determination, asserting the Confederacy’s status as an autonomous entity separate from the USA and Canada. These passports serve as official travel and identification documents issued by the Confederacy’s own governing bodies, adhering to its laws and regulations. The existence and use of these passports, even if not universally recognized, make a compelling case for acknowledging the Haudenosaunee Confederacy as a sovereign nation. Their willingness and ability to issue such documents underline their governance structures, legal frameworks, and the historical continuity of their collective identity. As such, the Haudenosaunee passports serve as both a practical tool and a powerful symbol of the Confederacy’s claim to nationhood and sovereignty.Footnote 82
The Haudenosaunee Confederacy has its own Repatriation Committee that oversees the return of sacred objects and human remains. Over 25 years, they’ve reclaimed most wampum and over 800 masks used for diplomatic and educational purposes. Ongoing negotiations continue with institutions such as the Canadian Museum of History, the ROM, and the Smithsonian National Museum of the American Indian.Footnote 83
Outside of Canada
As we can see with the above-mentioned aspects of the Haudenosaunee Six Nations, who are located bordering two countries, issues of Indigenous repatriation are not limited to just Canada, repatriation has increasingly become a focus of museums and cultural institutions worldwide, as a response to historical injustices and as a method of fostering reconciliation with Indigenous peoples, similar processes could be utilized in different geopolitical contexts, such as in Australia and the USA.Footnote 84
In 2003, the National Museum of Australia successfully repatriated ancestral remains to the Ngarrindjeri people of Southern Australia.Footnote 85 These remains, previously stored in the Australian Museum in Sydney, the University of Edinburgh, and the Royal College of Surgeons in London, had been removed during nineteenth- and twentieth-century archaeological excavations. This significant repatriation highlights the parallels with the Anishinaabe case in Canada, as the Ngarrindjeri, with their own governance system, sought the return of their ancestral remains for cultural rights and healing.Footnote 86 This process marked a crucial step towards reconciliation and respect for Indigenous rights in Australia. The returned remains were transformed from scientific specimens into revered community members and treated with respect and dignity according to Ngarrindjeri customs.Footnote 87
In the USA, the Native American Graves Protection and Repatriation Act (NAGPRA) and the National Museum of the American Indian Act provide legal frameworks for the repatriation of cultural items to Indigenous tribes. These laws recognize the sovereignty of Indigenous tribes and their rights to their cultural heritage.
An example of this legal framework in action is the repatriation of ancestral remains and cultural items from the National Museum of the American Indian (NMAI) in the USA to the affiliated Indigenous tribes.Footnote 88 The NMAI, part of the Smithsonian Institution, holds one of the largest collections of Native American artifacts and human remains. However, in accordance with NAGPRA,Footnote 89 enacted in 1990, and the National Museum of the American Indian Act,Footnote 90 the museum has been actively involved in the repatriation of these cultural items back to their respective tribes.
When examining the US context, it is crucial to distinguish between the NMAI and NAGPRA. The focus on NMAI arises from its unique role and historical significance within the Smithsonian Institution, where it has developed specific commitments to repatriation that align with but are not mandated by NAGPRA. These policies are tailored to meet the needs and traditions of Native American communities, reflecting NMAI’s unique position. However, NAGPRA’s broader scope is essential for a comprehensive analysis, as it provides a legal framework that impacts numerous institutions and ensures the protection and repatriation of Native American cultural items, including human remains, funerary objects, and sacred artifacts. This legislation has facilitated thousands of repatriation cases, significantly affecting a wide array of museums and Native American tribes across the USA.
One notable instance involves the return of ancestral remains and funerary objects from the National Museum of Natural History (NMNH) to the Native Village of Shishmaref in Alaska. Finalized in 2012, the repatriation included the remains of approximately 48 individuals, five funerary objects, and one non-statutory object from the nineteenth or early twentieth century. These items were integral to the history and cultural practices of the Inupiaq community (Qikiqaamiut), as evidenced by historical records, oral histories, and the characteristics of the remains.Footnote 91
Another instance where the Smithsonian repatriated remains to an Alaskan community was marked by the “Repatriation of Igiugig Ancestors Day” ceremony, held on September 14, 2017, in the Igiugig Village of Western Alaska, a momentous and unique event. Igiugig, a small village has a population of 68, primarily inhabited by Yup’ik Eskimos, Aleuts, and Athabascan Indians.
This day marked the return of twenty-four ancestral remains from the NMNH, which had been held at the museum since the 1930s. This event served not only as a return of the ancestors to their original community but also as a reaffirmation of the Igiugig Village’s cultural sovereignty and continuity.Footnote 92
While technically considered domestic events as they occurred within the boundaries of the USA, the repatriation can also be seen as international in character due to the unique status of federally recognized tribes. The Native Village of Shishmaref and Igiugig Village, like other federally recognized tribes, have their own customs, languages, and traditions, functioning in many ways like separate nations within the USA. This event underlines the importance of respecting Indigenous cultural heritage rights and the ongoing efforts to redress historical wrongs by repatriating ancestral remains and sacred objects to their rightful communities.
Framing repatriation as an “international” issue involves understanding the unique legal status of federally recognized tribes in the USA.Footnote 93 These tribes are legally considered “dependent sovereign nations,”Footnote 94 granting them self-governance and cultural autonomy, which aligns their repatriation efforts with international norms. The implementation of NAGPRA and the actions of NMAI reflect a broader international understanding of the importance of repatriating Indigenous cultural items, respecting Indigenous sovereignty, culture, and spiritual beliefs. Similar to the RRFN and Ngarrindjeri cases, this reveals the international character of Indigenous repatriation, highlighting the critical role of Indigenous peoples in protecting and managing their cultural heritage due to their distinct governance systems.
The international perspective of repatriation, as opposed to the domestic, significantly impacts the cultural objects and remains of Indigenous communities worldwide by recognizing their sovereignty and affirming the dynamic cultural, spiritual, and social roles these objects play in their native contexts. In the Anishinaabe community in Canada, repatriated sacred items and remains restore their agency and roles within cultural observances, embodying “manitou”Footnote 95 or spiritual energy. Similarly, the repatriation of ancestral remains to the Native Village of Shishmaref in the USA fosters the renewal of spiritual and cultural ties, reconnecting the remains with their homeland and bridging generations past, present, and future.
These are just a few examples of how the return of objects and human remains to their original First Nations communities invokes a remarkable transformation. This transformation is not merely physical or geographical but deeply entwined with their cultural, spiritual, and social dimensions. This process re-establishes the lost connections between these objects and their original communities, helping them to regain their active cultural roles and spiritual significance; the object actively transforms over the border between the museum and the community.
This unique transformation reinforces the notion of cultural objects as “living” entities, tied intimately to the First Nations communities’ spiritual, cultural, and social fabric. Furthermore, it underscores the profound differences in cultural contexts between these Indigenous communities and the broader Canadian society. These differences, shaped by unique histories, cultures, and traditions that predate modern Canada, mirror the disparities that exist between separate nations.
Conclusion
While the physical movement of repatriated objects and remains might occur within the geopolitical boundaries of the same country, the shift in cultural context is significant enough to be considered “international repatriation.” This perspective highlights the inherent sovereignty and distinct nationhood of First Nations communities, suggesting that interactions between Canadian institutions and these communities are essentially international in nature. Repatriation involves various legal systems, cultural norms, and international considerations, particularly relevant when recognizing the unique governance structures of Indigenous communities. Institutions such as the Truth and Reconciliation Commission in Canada, the National Museum of the American Indian in the USA, and the National Museum of Australia have set important precedents in repatriation practices, reinforcing Indigenous sovereignty and cultural heritage. Legal frameworks, including treaties and landmark court cases like R v. Sparrow and Delgamuukw v. British Columbia, affirm the rights to self-determination, cultural preservation, and autonomy for Indigenous peoples. By adopting an international approach to repatriation, we acknowledge Indigenous distinctiveness and sovereignty, aligning with standards like UNDRIP and enhancing political, social, and cultural outcomes for First Nations. Framing repatriation as an international issue facilitates a deeper understanding of Indigenous sovereignty and ensures more effective and culturally sensitive repatriation efforts. This approach redefines our understanding of Indigenous heritage, sovereignty, and repatriation within the national context of Canada, emphasizing the unique nationhood and inherent sovereignty of Indigenous communities. In light of this research, repatriation is not merely the return of objects but a complex, internationally relevant act that advances justice, fosters reconciliation, and acknowledges the unique nationhood and inherent sovereignty of Indigenous and First Nations communities.
