Who Owns the Past? Cultural Policy, Cultural Property and the Law.
Kate Fitz Gibbon, ed. New Brunswick, NJ: Rutgers University Press,
2005. 335 pp. (Co-published with the American Council for Cultural
Reviewed by Christina Kreps
Who Owns the Past? Cultural Policy, Cultural Property and the Law
has an ambitious and worthy goal, that is, “to explain the ethical,
legal, and practical arguments on which current U.S. policy is based,
and to make the cultural property debate comprehensible to all” (p.
xiii). The book consists of 29 articles and essays organized under four
main headings: I, The Laws; II, Collecting and the Trade; III, Art in
Peril; IV, The Universal Museum. Section V, includes Appendices and
Links. Some of the articles are updated versions of previously
published pieces, while others were commissioned for the volume. Among
the topics covered are: the history and development of cultural
property law and policy; rights to cultural property and the ethics of
collecting; threats to arts and antiquities due to illegal trafficking,
looting, as well as war and development; repatriation; roles and
responsibilities of museums; and international cooperation for the
protection of cultural property. The editor, Kate Fitz Gibbon, provides
an abstract of each article in the “Introduction” and an overview of
international and national cultural property legislation in the first
chapter titled “Chronology of Cultural Property Legislation.” She also
is the author of four other essays in the book.
in accessible, non-technical language, Fitz Gibbon’s chapter and other
essays in the first section on “The Law” are useful references for
newcomers to the field seeking to understand the complexities of
legislation regulating the transfer and ownership of cultural property.
Authors examine the “development of US and foreign cultural property
law, as well as recent U.S. case law that affects the ability of both
private collectors and U.S. museums to own artworks from other
countries and other times” (p. xiii).
highly informative in parts and useful on a number of levels, the
volume is uneven in terms of writing styles and scholarly integrity.
This is unfortunate since the book was published by an academic press,
but perhaps understandable given the diverse backgrounds, perspectives,
and interests of its contributors. In addition to art historians,
anthropologists, archaeologists, and museum professionals, the book
also includes contributions from journalists, art collectors, dealers,
and legal experts. In short, it represents those with
scholarly/scientific interests in the traffic, ownership, and
protection of cultural property as well as those with commercial ones.
Here it is also important to note that the book was sponsored by and
published in association with the now defunct American Council for
Cultural Policy. As Ashton Hawkins, former President of the
organization and counsel to the Metropolitan Museum of Art states in
the Preface, “the American Council for Cultural Policy was founded in
2002 as a not-for-profit organization dedicated to informing the public
on arts issues. Our membership includes scholars, museum professionals,
collectors, and those who advise them” (p. ix).
The volume’s editor, Kate Fitz Gibbon, is a specialist on Central Asian
art and world heritage issues who also served on the Cultural Property
Advisory Committee to the United States President from 2000 to 2003.
the book presents a wide range of views from diverse constituencies, it
is clearly weighted on the side of those who would like to see a
loosening of national and international laws on the trade and ownership
of cultural property. According to Fitz Gibbon, “legal mechanisms
currently in place to protect cultural heritage are not working well”
and “the debate is over not only who owns the past, but in whose hands
the stewardship of cultural heritage should lie” (p. xiv).
and Fitz Gibbon set the tone of the volume in the “Preface” and
“Introduction.” While they call for a more open and balanced discussion
of the issues they also let readers know where they stand. Both authors
are concerned that legal, practical, and factual arguments in debates
on the ownership and circulation of cultural property have been
overshadowed by moral arguments largely promulgated by certain members
of the scientific community and their supporters. In Fitz Gibbon’s
is a widely accepted view—voiced often by archaeological interests…that
issues of cultural heritage are simple moral arguments between opposing
scientific and commercial interests. Archaeological organizations have
urged changes to US law that would significantly reduce the trade in
art, and make it more difficult for museums to preserve access to
materials from the world’s diverse cultures. [p. xiii]Hawkins
asserts that at stake is nothing less than the protection of the
“fundamental values of Western culture and our democratic political
process” (p. ix).
keeping with this rather defensive and alarmist tone is Steven
Vincent’s essay “Indian Givers,” which can be seen largely as a
diatribe on the Native American Graves Protection and Repatriation Act
(NAGPRA). Vincent was a freelance journalist who wrote on arts issues
and cultural policy. The author opines on the “political correctness” and “Orwellian” implications of NAGPRA in the following passage.
did a well-intentioned piece of legislation take on such Orwellian
overtones? The answer is complicated, a result in part of the weighted
history of Indian relations in this nation, a vaguely written federal
law, and zealous government agencies that seek to enforce it—as well as
the confusing, subjective, and often contradictory nature of Native
American culture itself. But mostly, NAGPRA is an object lesson in what
happens when the American political and legal establishments delve into
race and race consciousness, blurring the time line between myth and
science, the sacred and profane, while affirming the values that are in
many ways antithetical to the basis of Western culture. [p. 35]To
Vincent, NAGPRA presents a serious threat to such “core Western values”
as the scientific method, constitutional liberty, and the right to own
private property (p. 43).
Native and non-Natives who have worked on NAGPRA matters will admit to
the complexities of the law and the challenges that can arise in its
implementation. Nevertheless, I think many would say that NAGPRA has
done more to bring scientific, museum, and Native American communities
together than to divide them, opening doors to mutually beneficial,
is particularly concerned with how NAGPRA has encumbered the ability of
private collectors and dealers to engage in the free trade of Native
American art and artifacts. He blames restrictions on trade to the
“cowboy mentality” of government agents and their “dismissive
attitudes” toward these constituencies. He attempts to buttress his
position by using anecdotal evidence in the form of extensive quotes
from dealers and collectors, as well as archaeologists and physical
anthropologists critical of NAGPRA. Few of the quotes are referenced
and only one of his sources is cited (Karen Warren’s “Introduction” in The Ethics of Collecting Cultural Property,
Phyllis Mauch Messenger, ed. University of New Mexico Press, 1989).
Needless to say, Vincent’s essay presents a highly biased view of
NAGPRA and its consequences. This stance may be anticipated given the
essay’s rather offensive title.
would be wrong, however, to characterize the entire volume as one-sided
and vitriolic in tone. There are a number of well-reasoned, thoughtful
articles backed up by sound scholarship and written by authors with
distinguished careers. Such is the case with Clemency Chase Coggins’
article “Archeology and the Art Market,” which originally appeared in
the journal Science in 1972.
In this seminal work, Coggins discusses the destructive consequences of
the looting of archaeological sites in South and Central America, and
the need to stop the collecting of looted, unprovenanced objects by
private collectors and museums.
Matsuda puts a more current spin on looting in his article “Subsistence
Diggers,” which is based on his research among subsistence farmers in
Belize, El Salvador, Guatemala, Honduras, and southern Mexico.
The article addresses the socioeconomic and political causes behind the
“underground artifact economy” in the region, and suggests that the
problem to site despoliation is best served by looking at its root
landholders, landless tenant farmers, seasonal plantation workers,
underpaid wage and contract laborers, and refugees become diggers
because they have no other way to survive. Subsistence digging is not
the cause of social ills. Rather, it is the result of basic human
rights denied. [p. 256]
instructive is Emmy C. Bunker’s article “The Acquisition and Ownership
of Antiquities in Today’s Age of Transition.” Bunker, who is an art
historian and specialist on western Chinese, Southeast and Central
Asian art, offers examples of how Western collectors, arts
institutions, and scholars can collaborate with museum professionals
and administrators in source countries on cultural restitution efforts.
She describes how materials, held in private collections and Western
institutions, have been repatriated to museums, specifically, in
Cambodia and China. Bunker additionally provides an account of how
projects, sponsored by private collectors and foundations, to recover
lost objects and safeguard current collections at the National Museum
of Cambodia are contributing to that country’s effort to preserve its
cultural heritage. These initiatives serve as models of cooperation
among Western collectors and institutions and source country
administrations. Bunker reminds us that “collectors and dealers are
responsible for much that is good in the art world. They have funded
research, archaeological digs, publications, and other work important
to scholarship” (p. 315) and that many of the world’s great museums
would be without their collections if it were not for the donations
from private collectors (see also the essay in this volume by Shelby
White, “Building American Museums: The Role of the Private Collector”).
Equally constructive are Bunker’s suggestions on possible solutions to
the problem of the illicit traffic and trade in antiquities. The author
contends that her essay is not an apology for collecting, but rather, a
plea for rational discussion and understanding among the various
stakeholders. In defense of collectors, Bunker stresses how
“collectors, both public and private, are custodians of other people’s
culture and have an obligation to share the fruits of that culture with
the world” (p. 317).
Notwithstanding its scholarly shortcomings, overall, I find Who Owns the Past?
a highly informative and important text precisely because of its
provocative nature. It represents the views and interests of
constituencies often ignored by academic and museum anthropologists
despite the influential role they play in the “traffic of art and
culture” as well as policy making. Indeed, one of the purposes of the
book is to provide a forum for the expression of “views that have not
been widely disseminated or discussed” (p. ix). The provocative tenor
of many essays in the book makes them useful for classroom discussion.
But perhaps more importantly, the book reveals how impassioned and
acrimonious the debate on the trade, ownership, and protection of
cultural property can be, and the roles various constituencies play in
the debate. In this respect, the book can be a “wake up call” to museum
and academic anthropologists whose voices have tended to be largely
silent in the debates on national and international cultural policy.
the question of who owns the past is open-ended. But academic and
museum anthropologists should not sit idly by and let those who possess
the most power and resources ultimately determine the answer to this
question. Current national and international legislation and policy was
enacted to redress wrongs of the past and counter-balance the dominance
of certain world powers and commercial interests. Indeed, much is at
stake. As the book suggests, we need to keep the debate going and
dialogue open to find workable solutions that include multiple voices,
perspectives, and interests.
According to David Nelson Gimbel, founder and director of the
non-profit research and advocacy group Archaeos, the American Council
for Cultural Policy was “little more than a lobbying group for the
antiquities trade.” The Council was comprised of “the very same people
who at the outbreak of the Iraq Crisis labeled the Iraqi antiquities
laws as ‘retentionist,’ and who engaged in lobbying the US government
to relax legislation regarding the import and sale of antiquities.” https://listhost.uchicago.edu/pipermail/iraqcrisis/2005-April/001202.html (accessed July 6, 2007).
As noted on the copyright page of the volume, Steven Vincent was
tragically kidnapped and killed in Basra, Iraq on the day the book went
David Matsuda is a lecturer in anthropology and human development at
California State University, Hayward. He received the Minoru Yasui
human rights award for his work with indigenous peoples.
4. See Richard Kurin (2003) “UNESCO Votes New Intangible Cultural Heritage Convention.” Anthropology News 44(9):21-22 and Paul Niri (2005) “UNESCO and Cultural Diversity” Anthropology News 46(9):25.
Kreps is Associate Professor of Anthropology and Director of Museum
Studies and the Museum of Anthropology at the University of Denver,
Colorado, USA. She is author of Liberating Culture: Cross-Cultural Perspectives on Museums, Curation, and Heritage Preservation (Routledge, 2003).