A Way Home: Repatriation of Indigenous Cultural Heritage in Canada

In 2019, I spent time interviewing staff at the Museo de la Plata in Argentina. I was there to conduct research about the legal and institutional process of returning ancestral remains to Indigenous Nations and communities across the country. In 2010, a federal law came into force, legislating that both private and public collections of human remains be accessible to Indigenous communities for reclamation. This law prompted major changes in museums across the country. Most importantly, it gave Indigenous Peoples a legal foothold to bring their ancestors home.

My research left me wondering whether and what mechanisms existed in Canada to enable Indigenous Peoples access to and custody over the human remains of their ancestors and other items held within Canadian institutions.1 Through this blog post, I hope to answer some of these questions, albeit recognizing that the protection of cultural heritage is a complex topic that cannot be fully covered in a short summary.

What is repatriation, and why is it important?

Repatriation is the return of cultural material to the country, nation, or community of origin. It is a legal process that requires the transfer of physical custody. Cultural material is an important part of cultural heritage encompassing both tangible (including human remains and sacred and non-sacred objects) and intangible aspects (e.g. songs, dances, stories, histories).

Other terms may be used for similar processes. Restitution or reversion convey the act of returning legal title through an existing legal mechanism like de-accessioning. 2 Rematriation moves beyond transfers of ownership towards restoring relationships and transforming collective futures.

Repatriation plays a role in broader political struggles for self-determination. Cultural heritage is essential to the laws, customs, and traditions of Indigenous Peoples. Access to heritage may facilitate other rights, for example, by providing evidence for Aboriginal rights and title claims under section 35 of the Constitution Act, 1982.

Repatriation is also crucial for human dignity. Many institutions continue to hold ancestral remains, impacting communities’ ability to honour their obligations to the dead and to give their ancestors a culturally appropriate burial.

  According to a 2019 Government of Canada survey of Heritage Institutions, there are 6.7 million Indigenous cultural artifacts in heritage institutions across Canada, and an estimated 2,500 ancestral remains.

Through repatriation, colonial histories are acknowledged and redressed. Cultural institutions like museums, archives, and universities played a role in the dispossession of Indigenous Peoples land by interpreting collections through a racist lens used to justify European sovereignty.

Repatriation can have positive and transformative effects on the repatriating institution, requiring relationship building and consultation. With stakeholder consent and participation, museums can rebuild their displays and revamp their protocols. By returning objects that were acquired through illegitimate and coercive means, these institutions can legitimize their collections. Repatriation and associated institutional changes can help restore public trust in museums as spaces of education, knowledge dissemination, and intercultural dialogue.

The importance of repatriation is not a new concept. As early as 1994, in the Turning the Page report, the Assembly of First Nations and Canadian Museums Association called for museums to develop repatriation policies that included Indigenous involvement for determining the appropriate recipient and protocols. The Royal Commission on Aboriginal Peoples asserted that better access to collections was needed, including making inventories accessible to Indigenous Peoples.

Call 67 of the Truth and Reconciliation Commission requests that the federal government provide funding to undertake a national review of museum policies and best practices in determining their compliance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), along with making recommendations. Authored by the CMA Reconciliation Council, the 2022 Moved to Action report articulates standards for museums to become UNDRIP compliant.

Recommendations emphasize the need to return cultural belongings with the full involvement of Indigenous Peoples as equal partners, recognize Indigenous Peoples’ intellectual sovereignty over materials created by or about them, and highlight the importance of extensive funding and compensation for Indigenous consultants, researchers, and knowledge-holders’ time and expertise.

Does Canadian law facilitate repatriation?

While the need for robust and participative mechanisms for repatriation has been

discussed for over 30 years, Canada’s approach has generally been through ad-hoc negotiations. Canada does not currently have federal legislation specific to protecting Indigenous cultural property or enabling repatriation. This affects cultural heritage already stored in institutions like museums, as well as objects emerging from new archaeological digs, the ownership of which is generally established through common law principles.

Federal Legislation

The Cultural Property Export and Import Act, RSC 1985 (CPEI Act), is currently the only federal act to generally address tangible cultural property by setting limitations on what and who can export materials considered to be national heritage. Protections under the CPEI Act include objects made by or related to Indigenous Peoples in Canada, but it does not provide a process for the return of objects exported contrary to its provisions, and it does not mention Indigenous consultation or participation in the designation of cultural property falling within the control list.

Section 91 of the Indian Act protects a limited class of objects located on a reserve from being alienated. While this section could be used to support an action against the Crown if a transfer is authorized against the wishes or best interests of the Band, it is quite limited.

In 2019, Bill C-391: An Act respecting a national strategy for the repatriation of Indigenous human remains and cultural property received unanimous approval in the House of Commons. Bill C-391 would have seen the Minister of Canadian Heritage, in cooperation with representatives of First Nations, Inuit, and Métis Peoples, develop and implement a national strategy to support the return of Indigenous human remains and cultural property in accordance with UNDRIP. Unfortunately, Parliament dissolved before the bill was approved by the Senate.

Provincial Legislation

Alberta is currently the only province to legislate repatriation under the First Nations Sacred Ceremonial Objects Repatriation Act. The Act recognizes that Alberta museums hold sacred ceremonial objects of spiritual value to First Nations and provides that a First Nation may apply to the Minister for the repatriation of these objects. If the Minister agrees, repatriation will occur once consultations have been completed. However, the Act is limited in several ways. First, the regulations confine the definition of First Nations to the Blood Tribe, Siksika Nation, and Piikani Nation. Second, to be repatriated, the object must have been used in sacred or ceremonial traditions and be vital to their practice. Third, the Minister retains ultimate discretion to agree to repatriation. And fourth, the Act exempts the Government of Alberta from funding First Nations in their repatriation efforts.

The Royal Saskatchewan Museum Act calls on the Royal Saskatchewan Museum to develop a policy to address Indigenous Peoples concerns regarding access to care, use, and repatriation of sacred and culturally sensitive objects, but does not mandate it through law.

Modern Treaties

Some of the most successful repatriation actions have been the result of modern treaty negotiations. The Nisga’a Final Agreement includes provisions for the inventorying and return of artifacts from the Canadian Museum of Civilization, Royal British Columbia Museum, and other institutions, along with the return of any human remains of individuals of Nisga’a ancestry removed from a heritage site. Any custodial agreements must be based on and respect Nisga’a law and practice.

Through the treaty 276 historic and spiritual Nisga’a artifacts have been returned.

The Maa-nulth First Nations and Tla’amin Final Agreements include similar provisions.

Institutional Policies

Few institutions have formal repatriation policies. Where policies do exist, they vary in detail. For instance, whereas the Canadian Museum of History and the University of British Columbia Museum of Anthropology have established repatriation procedures, the Nova Scotia Museum’s policies only stipulate that repatriation should be considered on a case-by-case basis. The Royal British Columbia Museum and the Haida Gwaii Museum at Kay Llnagaay collaborated to create a Repatriation Handbook in 2019, providing guidance applicable not only across Canada but also internationally.

To be truly useful, institutional policies need to include a means of communicating what their collections hold to the appropriate originating and descendant Peoples. This communication should consist of clear guidance on how to request return(s).

What does international law say?

Repatriation is necessary to bring museums into compliance with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). In 2021, Canada incorporated UNDRIP into federal law with the goal of implementing the Declaration domestically.

UNDRIP includes explicit provisions that call for repatriation:

Article 11 articulates Indigenous Peoples’ right to practice and revitalize cultural traditions, including the right to protect the past, present, and future manifestation of their cultures. Part of this right requires states to provide redress, which may include restitution in respect to the “cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of [Indigenous] laws, traditions and customs.” Under this article, Indigenous laws governing the use of sacred items must be equal to state law.

Article 12 requires states to facilitate access or repatriation of ceremonial objects and human remains through effective and transparent mechanisms, as part of the right to spiritual and religious traditions, customs, and ceremonies.

Article 31 outlines the right to maintain, control, protect, and develop cultural heritage, traditional knowledge, traditional cultural expressions, and intellectual property.

These rights are bolstered by Article 19, which requires that states obtain free, prior, and informed consent —a manifestation of the right to self-determination —before undertaking decisions that may affect Indigenous Peoples’ rights.

Under UNDRIP, Canada has a responsibility to ensure that repatriation occurs, that Indigenous Peoples are equal partners in the process, and that cultural heritage is protected as a human right. Under measure 98 of the UNDRIP Action Plan, the federal government has committed to developing a comprehensive approach for repatriation; this work has no projected start date.

What is the Native American Graves Protection and Repatriation Act, and could it be a model for Canada?

The United States’ Native American Graves Protection and Repatriation Act (NAGPRA) requires federal agencies and museums to inventory Native American human remains and cultural items, communicate these inventories to the originating or descendant communities, and repatriate to culturally affiliated Native American or Native Hawaiian Peoples. NAGPRA also makes clear that ownership and control of newly excavated Native American and Native Hawaiian archaeological items on federal and tribal lands is to be allocated to these communities. Importantly, the legislation provides some funding to Native American and Native Hawaiian groups and museums, although the adequacy of this funding has been critiqued.

Since its enactment in 1990, NAGPRA has resulted in the return of around 79,000 human remains and 2 million items from federal institutions.

One of the most significant aspects of NAGPRA is the role it gives Indigenous laws and customs. NAGPRA requires consultation with Native American and Native Hawaiian stakeholders to determine the rightful recipient of a repatriation request. In January 2024, new regulations came into force that compel deference to Indigenous knowledge and free, prior, and informed consent from lineal descendants for museums and agencies to exhibit, allow access to, or conduct research on human remains or cultural items. Traditional knowledge must also be incorporated into storage and treatment policies.

While the new regulations include updated timelines for inventories and provide penalties to encourage institutions to take action, they have been critiqued for upholding inequities in the relationship between Indigenous Peoples and cultural agencies. Other limitations of NAGPRA include the exclusion of private parties from accessing repatriation policies (failing to recognize the diversity in Indigenous property regimes), along with its narrow application, as it is limited to federal agencies and federally recognized Tribes.

Although Indigenous groups in Canada face difficulties in obtaining these benefits, NAGPRA provides a useful template for Canada to follow in developing repatriation legislation. The human rights basis, recognition of collective ownership, deference to Indigenous knowledge, requirement of free, prior, and informed consent, and protections for newly excavated human remains and objects are mechanisms that should be adopted. NAGPRA also provides some useful lessons, including the importance of ensuring adequate and consistent funding for Indigenous groups, communities, and Nations to pursue repatriation activities. The recent regulations underscore the need for clear timelines and expectations, including mechanisms for compliance, for institutions to report on inventories, and the importance of a broader scope for definitions of ownership and jurisdiction.

What should Canadian repatriation legislation look like?

The relative success of Bill C-391 at the House of Commons and commitments under the UNDRIP Action Plan signal a willingness to enact repatriation-focused legislation.

In September 2024, a coalition of national and provincial heritage organizations made a call to the federal government to establish an Indigenous-led National Framework for Indigenous Cultural Heritage Rights. This call, in combination with recommendations from the Moved to Action report, and guidance from the Expert Mechanism on the Rights of Indigenous Peoples, provide principles for legislation that ensures repatriation and protects Indigenous cultural heritage more broadly. Drawing on this guidance, I provide a summary of principles below:

Human Rights: The legislation should be based on human rights, drafted in consultation with First Nations, Métis, and Inuit representatives, and fully comply with UNDRIP.

Preventing Gaps: Legislation is needed at the federal and provincial/territorial levels to avoid jurisdictional issues, should encompass both public and private institutions, and include protection for newly produced or recently excavated heritage.

Institutional Accountability: Legislation must provide measures for enforcement.

Indigenous Sovereignty: The legislation should be deferential to Indigenous legal and cultural traditions, and recognize self-governance over cultural heritage. Any actions by institutions that may impact Indigenous cultural heritage must be done with the free, prior, and informed consent of the relevant Indigenous group.

Indigenous Peoples information sovereignty over materials and research related to their cultural heritage must be respected.

Funding: The legislation must commit the federal and provincial governments to providing consistent and adequate funding.

Beyond Canada: The federal government should commit to assisting Indigenous Peoples in negotiations with other states to facilitate international repatriation.

Repatriation from Canadian institutions should not be limited to Indigenous Peoples in Canada.

Final considerations

While this blog post has focused on repatriation nationally, Indigenous Peoples’ cultural heritage is held by museums throughout the world. International returns have occurred primarily through negotiation. For example, in 2023 a Nisga’a totem pole was rematriated from Scotland’s National Museum. Should negotiations prove unfruitful, there may be a way for Indigenous Peoples to draw on the individual complaints process through the UN Human Rights Commission to compel repatriation. UNDRIP provides a strong foundation for state obligations to repatriate and should be read in conjunction with relevant human rights treaties that protect equality, non-discrimination, freedom of religion and cultural rights, possibly providing a foundation for a potential claim.