A/HRC/45/35 7. In the present report, the Expert Mechanism notes that reliance on the Declaration, particularly articles 11, 12 and 31, among others, can help indigenous peoples, States, museums and other stakeholders to apply the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, adopted by UNESCO in 1970, as well as other international instruments and national laws, to the specific context of indigenous peoples. The Declaration should be the main instrument guiding the assessment of indigenous peoples’ claims and the development of transparent mechanisms for repatriation at the national and international levels. These mechanisms are necessary to redress past harms, protect rights and foster healing and cooperation among indigenous peoples, States, museums, universities, scientific institutions, United Nations agencies and others in the future. II. Background 8. Indigenous peoples have their own laws, customs and traditions concerning the treatment of ceremonial objects, human remains and intangible cultural resources. In many instances, ceremonial objects are considered inalienable, meaning they cannot be transferred outside of the indigenous community or cultural society or away from the spiritual leader responsible for caring for them. These items may be treated as living beings, provided with food, shelter, songs and prayers by their caretakers. With respect to human remains, indigenous peoples, like many others, typically honour their dead with funerals and other ceremonies. Indigenous spiritual teachings require that the dead must remain at rest and undisturbed in their burial places; intergenerational respect for these places is often maintained through ceremonial practices honouring those who have passed. Intangible resources, such as religious songs, plant knowledge and human, plant and animal DNA, are similarly important for the individual and collective cultural rights and responsibilities of indigenous peoples. 9. Notwithstanding these traditions, indigenous peoples’ ceremonial objects, human remains and intangible cultural heritage have often been taken from them throughout a long history of dispossession and appropriation.3 For hundreds of years, both State and private actors financed and licensed expeditions to acquire these items and then asserted ownership over them. Historically, the acquisition of indigenous human remains was ostensibly for scientific purposes. For example, in the 1860s, British institutions supported the collection of the remains of Aboriginal people from Australia as relics of dying cultures, artefacts or art, or raw materials for research.4 10. In other instances, looting was an aspect of conquest and colonization. In the 1860s, the army of the United States of America facilitated the removal of Indian remains from battle sites, resulting in the transfer of between 3,000 and 4,000 American Indian “osteological specimens” to what would become the Army Medical Museum. 5 Studies in the now discredited field of phrenology used the measurements of the skulls as evidence to suggest that American Indians were the intellectual inferiors of Europeans. From 1904 to 1908, indigenous peoples in the south of what is now the United Republic of Tanzania fought the Majimaji War of resistance against German colonialism, after which their human remains were buried in mass graves or taken to Germany.6 11. Even when conflict ends, the ongoing failure to respect indigenous peoples’ land rights and territorial boundaries makes it difficult for indigenous peoples to protect human remains, ceremonial objects and intangible cultural heritage. As a result, some acquisitions that may have appeared “legal” or “voluntary” were neither. Consider the case of Hopi “kachinas” that were acquired in the 1900s, during a period when many missionaries and others were entering Hopi villages. The kachinas are ceremonial beings who come to Hopi villages each spring to bring the rain; they are embodied in items that may look like masks to outsiders, but the Hopi describe them as sacred friends who are fed cornmeal, given shelter 3 4 5 6 See https://returnreconcilerenew.info/. See, e.g., Claire Scobie, “The long road home”, The Guardian, 28 June 2009. D.S. Lamb, The Army Medical Museum in American Anthropology (Washington, D.C., XIX Congress of Americanists, 1917). Cressida Fforde, C. Timothy McKeown and Honor Keeler, eds., The Routledge Companion to Indigenous Repatriation: Return, Reconcile, Renew (London, Routledge, 2020). 3