France / New Zealand: The Government of France Changes Its Position on Returning Preserved Tribal Heads to New Zealand
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(Jul 30, 2009) In recent years, the Government of New Zealand has made concerted efforts to recover preserved Maori heads taken abroad so that they can be returned to the appropriate tribe (iwi) for burial. New Zealand has signed both the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property, signed in Paris in 1970 (accepted by New Zealand on Feb. 1, 2007) (UNESCO, http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&
URL_SECTION=201.html (last visited July 24, 2009)), and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, signed in Rome in 1995 (acceded to by New Zealand on Nov. 16, 2006) (International Institute for the Unification of Private Law (UNIDROIT), http://www.unidroit.org/engl
ish/conventions/1995culturalproperty/1995culturalproperty-e.htm (last visited July 24, 2009)). New Zealand's statute implementing these two international Conventions is the Protected Objects Act, 1975. (Protected Objects Act 1975, 1975 N.Z. Stat. No. 41, as amended, http://www.legislation.govt.nz/act/public/1975/0041/latest/DLM432116.htm
l?search=ts_act_protected+objects_resel&p=1&sr=1.) Not all countries have been equally cooperative in returning the Maori, heads, however; until recently, France was one of the most recalcitrant.
Background on Maori Heads
Approximately eight percent of New Zealand's population is descended from the indigenous Maori people. (Central Intelligence Agency, New Zealand, THE WORLD FACTBOOK https://www.cia.gov/library/publications/the-world-factbook/geos/nz.html (last visited July 24, 2009).) The Maori speak a common language, but have historically been divided into tribes called "iwi." Fighting between different iwi pre-dated European colonization. In fact, the period just before colonization saw intense conflict among the iwi and is now known as the period of the Maori wars. During that time, the heads of fallen warriors were preserved by their communities to remember their sacrifice and were used for ceremonial purposes. However, early European visitors and traders eagerly sought these preserved heads as souvenirs; as a result, iwi communities began preserving the severed heads of enemies for bartering. Between 1815 and 1831, various iwi "manufactured" preserved heads by making war for the purpose of collecting them or by killing slaves and captives for their heads. Trade in preserved heads was finally banned by the British government in 1831. (Lissant Bolton, Repatriation Request from Karanga Aoetearoa (Repatriation Unit), Te Papa Tongarewa (Museum of New Zealand): Report on Discussions Held in New Zealand, British Museum website, Sept, 27, 2007, available at http://www.britishmuseum.org/pdf/00%2026%20Lissants%20Report%20to%20Trus
In addition to signing international conventions and enacting implementing legislation, New Zealand has established a Repatriation Unit in its national museum. Through its Karanga Aotearoa Repatriation Programme, the Museum of New Zealand (Te Papa Tongarewa, or Te Papa) has been able to recover Maori remains from over 40 museums around the world. (Museum of New Zealand, The Karanga Aotearoa Repatriation Program: Repatriation Projects, http://www.tepapa.govt.nz/SiteCollectionDocuments/TePapa/AboutTePapa/Rep
atriation/Repatriation%20Projects.pdf (last visited July 24, 2009).) Most of these museums were no longer displaying the preserved heads as curiosities, but were making them available for private inspection by scholars. In 2007, the Field Museum in Chicago became the first United States museum to repatriate Maori ancestral remains. (The Field Museum, Repatriation of Maori Human Remains, http://sites.google.com/a/fieldmuseum.org/pacific-web/Home/partnerships/
repatriation (last visited July 24, 2009).) In 2008, the remains of six Maori decedents were repatriated by three Canadian museums. (Government of Canada, Canadian-Held Maori Remains Repatriated to New Zealand, July 10, 2008, available at http://geo.international.gc.ca/asia/newzealand/news/canadian_news_bullet
The French Connection
France appears to be the country with which Te Papa has had the most protracted and difficult negotiations to date over the return of Maori remains. In October 2007, the town of Rouen in Normandy decided to give back to New Zealand one of the Maori heads that was found in its Museum of Natural History. The head had been part of the stored collections of the museum since it was donated by a French collector in 1875. (Mme Catherine Morin-Desailly, Proposition de loi visant à autoriser la restitution par la France des têtes maories, DOSSIER LEGISLATIF: SEANCE DU 29 JUIN 2009 (COMPTE RENDU INTEGRAL DES DEBATS) [in French], French Senate website, June 29, 2009, available at http://www.senat.fr/seances/s200906/s20090629/s20090629003.html#section2
Upon the intervention of the French government, the decision of the town was voided by the administrative court. The issue before the court was whether the head was a work of art or a body part. Under French law, an object belonging to France's patrimony is inalienable (not transferable). This provision prohibits any restitution of a piece of art held in a public collection unless a declassification procedure first takes place. By contrast, under France's bioethics laws, more specifically article 16-1 of the Civil Code, the human body, its constituent parts, and its products cannot be the subject of a patrimonial right. The court found that the declassification procedure set forth in the Patrimony Code had not been implemented nor did article 16-1 apply to the Maori head. In 2008, the Douai administrative court of appeal upheld the judgment of the lower court. (Id.)
New French Legislation
In this context, Senator Catherine Morin-Desailly prepared a draft law, cosigned by 60 other senators, to authorize the restitution of all the Maori heads, numbering about 15 to 20, which are currently in France's museums. She stated:
Culture cannot do without transparency and truth and it must have an irreproachable ethic. One cannot, under its cover, infringe upon the rights of the people, and France, a country of human rights, must be exemplary. Numerous countries have already restituted the heads. … France today is an exception to this general movement … . (Id.)
The draft law was unanimously adopted by the French Senate in the first reading on June 29, 2009. Article 1 of the draft law states: "[s]tarting on the date this law enters into effect, the Maori heads located in the museums of France cease to be part of their collections [and are] to be returned to New-Zealand." (Proposition de loi adoptée par le sénat visant à autoriser la restitution par la France des têtes maories à la Nouvelle-Zélande et relative a la gestion des collections [in French], French Senate website, June 29, 2009, available at http://www.senat.fr/leg/tas08-101.html.)
The draft law must still be voted on by the National Assembly. It was sent to the Cultural Affairs Commission of the Assembly on June 30, 2009. No hearing date has been set yet. (Texte No 1786, Assemblée Nationale website, June 30, 2009, available at http://www.assemblee-nationale.fr/13/propositions/pion1786.asp.)
- Author: Nicole Atwill More by this author
- Topic: Cultural property More on this topic
- Jurisdiction: France / New Zealand More about this jurisdiction
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Last updated: 07/30/2009