Restitution and Postcolonial Justice. A Dialogical Approach

By Julia von Sigsfeld

This article is a shortened version of the eponymous MECILA Working Paper, which was originally published by the Maria Sibylla Merian Centre Conviviality-Inequality in Latin America in 2025 and can be read here.

1. Introduction

Confronting a history of dispossession and alienation, and of accumulation thereby, restitution is generally seen as a recognition of and corrective to historical injustice or, rather, as an element thereof.[1] Demands for the return of museologized objects, belongings, and ancestral remains are thus deeply connected to and indicative of struggles over postcolonial memory and justice. Not only do these demands surface suppressed histories and memories in public discourse, but they also expose the violence and Eurocentric foundations of heritage practices and museums. Furthermore, restitution efforts bring to light the epistemic and ontological frames from which these items or remains were taken, as well as their contemporary significance and (re-) constitution. Restitution is, therefore, fundamentally tied to processes of recognition, redress, and the pursuit of postcolonial justice. It is, at the same time, shaped by the tension between the epistemological and ontological foundations of these pursuits and the modern-colonial structures and norms within which they unfold.

Restitution has been shaped by struggles over the legitimacy of recovery claims and the principles underpinning them – vis-a-vis institutions, nation-states, and at the international level. For the longest time restitution claims have been met with claims to the legality of possession and confronted heritage regimes that act as infrastructures of retention. Nevertheless, primarily due to tireless activism, restitution remains an issue of contention. Early repatriation and restitution efforts, notably by the Māori and First Nations, can be traced back to the nineteenth century (McKeown 2020). They have become part of the international agenda since at least the 1970s, driven by the recognition of human and cultural rights as well as the broader processes of decolonization. In 1979, a study by the International Council of Museums (ICOM) concluded that restitution, as an ethical principle, “would ‘soon become an element of jus cogens of international relations’” (Campfens 2023: 30). However, this has not happened so far.[2]

The 1970 UNESCO Convention[3] reaffirmed the principle of non-retroactivity despite efforts of formerly colonized nations for it to encompass cultural belongings translocated under colonialism (Stahn 2023: 355–356). Attempts to include a right to restitution in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) of 2007 were likewise met with resistance from former colonial powers (Vrdoljak 2008: 213–214). Thus, while an earlier draft of the UNDRIP included a right to restitution, the final version ended up stating that “states shall provide redress through effective mechanisms, which may include restitution […] with respect to their […] property taken without their free, prior and informed consent or in violation of their laws, tradition and customs” (United Nations 2007: article 11(2)), that Indigenous peoples have “the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains” (United Nations 2007: article 12(1)). Furthermore, it states that “states shall see to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous [sic] peoples concerned” (United Nations 2007: article 12(2); Vrdoljak 2008: 213–214; Stahn 2023).

Despite international advancements in recognizing cultural rights as human rights and the significant expansion of collective rights in Latin America in recent decades, restitution as a right or as a form of reparation has not gained significant traction in the region. The lack of comprehensive legislation for repatriation has compelled Indigenous communities to engage in arduous and resource-intensive recovery efforts, relying heavily on self-management and community-led initiatives. However, one existing legislative framework in Argentina and two draft laws on restitution in Chile and Brazil provide points of comparison. Meanwhile, in Europe, while postcolonial reckoning has yet to lead to larger-scale frameworks and governance structures for restitution, there have been some notable developments in recent years. In Germany, a significant shift has occurred over the course of the past years, from asserting the legality of museum acquisitions to questioning the legitimacy of their ownership (Oswald 2022). Different restitution frameworks thus call for examination, inviting exploration across various national contexts.[4]

Restitution research encompasses a diverse and interdisciplinary body of scholarship that examines the return of cultural belongings and human remains from various perspectives. At the international level, studies focus on the role of international law and global frameworks, such as the 1970 UNESCO Convention and the UNDRIP, in shaping restitution debates (Esterling 2017; Macías Betancourt 2023). National contexts and legislation also feature prominently, with analyses exploring how specific countries address restitution through domestic legal frameworks and policy-making and comparative approaches providing insights into specificities and divergences (Verdesio 2011; Endere and Ayala Rocabado 2012; Yanase de Rezende 2019; Magallanes and Stella 2022). Scholars have further explored the intersection of law and decolonial approaches, critiquing Eurocentric legal norms (Loyola Daiqui and Sprute 2022). Case-specific studies, particularly anthropological ones, provide important insights into restitution and the (political) contexts in which they unfold, offering perspectives on the cultural, spiritual, and social significance of return (Sardi and Ballestero 2017).

This working paper contributes to scholarship on restitution that links different contexts, particularly European and Latin American (Ochoa Jiménez 2024), demonstrating the value of joint readings to the study of restitution.[5] It provides both an analysis of restitution frameworks based on law and policy in different national settings and bridges theoretical considerations of epistemic justice, as part of postcolonial justice, with practical implications. The paper advocates for a dialogical approach to restitution that foregrounds ethical deliberation and a dialogue among knowledges.[6] The analysis is informed by both distanced and close readings of restitution frameworks, drawing on my professional involvement in the German museum sector. It is shaped by my positionality as a German-Latin American, non-Indigenous museum professional and researcher. While it engages with critiques of coloniality, the analysis is situated within the institutional order and its epistemic frameworks; it does not claim a decolonial approach but rather seeks to critically reflect on and intervene in these structures that shape contemporary restitution practice. The paper examines the German context, where restitution is guided by political will in the absence of a formal legal framework, alongside three Latin American contexts – Argentina, Chile, and Brazil – where restitution laws or draft laws have been implemented or proposed. Acknowledging that these contexts are shaped by distinct histories of colonialism and coloniality and marked by different postcolonial conditions, it asks: What defines the grounds for restitution in different contexts, and how can dialogical frameworks advance justice in restitution efforts?[7]

2. Restitution Legislation in Latin America

Restitution claims within and to Latin America arise from a diverse array of historical contexts, actors, and practices of dispossession, as well as contemporary efforts of reappropriation and cultural resignification.[8] These contexts include colonial extractivism, state violence, missionary activities, as well as religious violence and expropriation, and first and foremost scientific and ethnographic expeditions, including practices such as grave desecration and exhumations (Crespo 2020: 71–72). While restitution is not a generalized demand among peoples and nationalities or so-called descendant communities, numerous cases warrant attention, reflecting the complex entanglements between museum collections and experiences of loss, recuperation, and reappropriation.[9] International media attention has largely focused on high-profile restitution cases, such as Colombia’s efforts to recover the Quimbaya collection from Spain (Santos Acerbi 2024) and Mexico’s claim to Austria’s Penacho de Moctezuma (Losson 2022). Such cases highlight the growing significance of restitution in cultural foreign policy, which has in the past decades prominently focused on the recovery and protection of archaeological heritage (as “national heritage”) (Stahn 2023; Losson 2022).

Notable cases linking Germany with Latin America include the activist repatriation of two Shuar tsantas (shrunken heads) from Ecuador in the possession of the University of Göttingen in 1978 by a student collective (Müller 2021); the repatriation of the remains of Kryygi to her Aché descendant community in Paraguay from the Museo de la Plata and Berlin’s Charité in 2010/2012 (Ametrano 2015) and the return of two sacred masks to the Kogui in Colombia in 2023 and three further associated items in 2025 from Berlin[10] (Brust et al. 2023), and the recent burial of Selk’nam remains in Lübeck. Latin America’s distinctive colonial legacies and evolving rights landscapes make it a critical region for examining restitution frameworks. Although the region has witnessed significant advancements in Indigenous and collective rights in past decades, the recovery of cultural belongings and ancestral remains has not been meaningfully integrated into either a cultural rights framework or a reparative justice agenda. Argentina, Chile, and Brazil, with their distinct colonial histories and postcolonial trajectories yet comparable struggles with addressing dispossession and postcolonial justice, offer approaches to restitution which have not yet been systematically compared. This section explores what characterizes the frameworks to address restitution claims.

Argentina is the only country in Latin America with specific restitution legislation in force: Law 25.517/01 mandates the repatriation of ancestral remains. Restitution demands date back to the 1970s, with early requests to the Museo de La Plata denied under Civil Code Article 2340, which had classified remains as state public domain (Crespo 2022: 158; Endere and Ayala Rocabado 2012: 43). Before the law came into effect, repatriations required special legislation (Endere and Ayala Rocabado 2012; Crespo 2023) (Endere 2011). Law 25.517/01 stipulates that “aboriginal human remains” in public or private collections must be “put at the disposal of Indigenous people and/or communities of origin that lay claim on them” (article 1). It mandates that institutions shall treat unclaimed human remains with “respect and the consideration that is given to all human corpses” (Article 2). What is more, Article 3 makes prior consent of communities a condition for all research that affects them, “including their historical and cultural heritage”. The law does not specify criteria for such claims, leaving its application to provincial legislation (Endere and Ayala Rocabado 2012: 44; Molina Plaza 2020: 64).[11] Full implementation began in 2010 with Decree 701, which tasked the National Institute of Indigenous Affairs (INAI) with coordinating the law.[12]

Chile lacks specific restitution legislation but there have been legislative proposals with an emphasis on collective cultural rights. The 2022 draft constitution proposed recognizing Indigenous rights to repatriation and restitution.[13] Aside from guaranteeing “access” to “cultural objects, human remains, and sites of cultural significance”, Article 102 would have made repatriation of “cultural objects and human remains” a right of “Indigenous peoples and nations” (Quinteros Cáceres et al. 2022). It furthermore would have required the state to “adopt effective mechanisms” for “restitution and repatriation”, furthermore tasking the state with its “recuperation” (Quinteros Cáceres et al. 2022).[14] An earlier 2016 draft law (10.936-04) already posed collective cultural rights and a right to restitution, targeting sacred objects, identifiable human remains, and irregularly appropriated artifacts (Molina Plaza 2020).[15] The law would require identifiable and recent human remains (Article 8) as well as cultural belongings “appropriated by irregular means” as well as “sacred objects” to be repatriated to legally recognized peoples and communities. It would establish the state’s duty to pursue repatriation from abroad, stipulating from the onset that the state shall hand over these repatriated remains to the respective community (Article 18), and it introduces indemnities for destroyed or irrecoverable items (Article 17).

The Chilean draft law is the most comprehensive of the three, introducing rights and duties that extend beyond restitution to affect public and private institutions. It requires reporting the possession of human remains (Articles 8–12) and cultural items (Article 16), prohibits remains’ displays without prior consent (Article 8), and mandates their proper preservation (Article 10). Access to belongings for traditional practices is ensured (Article 12), and handling guidelines for unidentified remains (Article 8). The law also bans offensive displays (Article 14) which includes discriminatory depictions and means which “seriously contradict their cultural practices or customary law” (Article 2.c.) and requires classification and registration of items in Indigenous languages, respecting cultural protocols (Article 7). However, the law, which is framed in terms of the shortcomings in collective rights of existing legislation, has not advanced.[16] Rather, in broader revisions to Law No. 17288 on National Monuments of 1970, the heritage law that now classifies Indigenous heritage (archaeological sites and human remains) as state property (Ayala Rocabado 2020; Maza and Ayala Rocabado 2020; Abarzúa Órdenes 2020), is currently undergoing revision based on a large-scale consultation process which could lead to a significant expansion of collective rights. Repatriation protocols would be drafted through participative processes with the Indigenous nations involved.[17]

Brazil’s 2024 Draft Law 118[18] proposes a National Restitution Policy (Article 1) that aims at the “repatriation or voluntary return” of “historical and cultural artifacts” (which includes human remains, as stated in Article 2 (III)) but also archival material, audio material, and images (Article 3 (I) I.) from abroad.[19] It stipulates that “unique” artifacts and artifacts “of identitarian and/or religious value” should be returned from collections within the country to their communities of origin (Article 6, Parágrafo Único), allowing for a copy to be kept by the restituting entity. Indigenous participation is foreseen in the creation of restitution mechanisms (Article 4 (I)) and establishment of repatriation criteria (Article 4 (VI)), but the framework is overall state-centered, with the government tasked with creating databases and pursuing international repatriation agreements. The draft frames restitution as recognition of historical injustice and as an “act of justice” but seems to foreground claims to “improperly” or “illegally” removed items, raising questions about the criteria for restitution and the balance of power between state and communities.[20]

Comparing these frameworks reveals shared challenges and divergences. Argentina’s approach reflects its post-dictatorship human rights discourse, focusing on dignity and memory politics (Verdesio 2011: 1; Crespo 2022: 159–160; Chaparro 2023: 9). Focusing on both public and private institutions within the country, it applies to human remains only and not to cultural belongings nor even sacred objects and funerary artifacts (Endere 2022: 247; Molina Plaza 2020: 63). Chile and Brazil’s proposals extend to cultural items but impose restrictions: Chile emphasizes sacred and unlawfully/unethically appropriated artifacts, while Brazil prioritizes items of unique (religious or identitarian) significance. The Brazilian framework is primarily oriented toward international restitution, whereas Chile’s draft law balances domestic and international dimensions, addressing both public and private entities and mandating state-led efforts to recover items from abroad (Article 18). It also stipulates that internationally repatriated remains or belongings are returned to their communities of origin (Article 18). Issues of proof, categorization, and community agency arise as critical points of contention, alongside tensions between state control and Indigenous self-determination.

All three countries face common obstacles rooted in the tension between national heritage regimes and their imposition on Indigenous norms, impacting restitution claims (Acuto and Flores 2019: 24–25; Ochoa Jiménez 2024: 131). State control and ownership of cultural and archaeological heritage deemed national patrimony restrict possibilities for restitution (Endere et al. 2011: 173–174). Heritage laws, although aimed at protecting cultural artifacts from misappropriation and export, end up reinforcing the legality of retaining these artifacts under the guise of inalienable cultural heritage.

Recent cases, such as the Selk’nam repatriation case from Lübeck illustrate tensions between national heritage regimes and Indigenous rights and agency. In October 2024, the human remains of a Selk’nam man, named Hoshkó by the descendant community, were buried in a Lübeck cemetery by a delegation from Tierra del Fuego after two years of talks between the German stakeholders and the organisation Hach Saye. Selk’nam ancestral remains were highly prized by physical anthropologists; Hoshkó’s skull was sent to Lübeck’s ethnological museum in 1914 by a German emigrant. While the community initially sought to repatriate Hoshkó for burial on Selk’nam territory, Chilean legal requirements mandated that the remains pass through the Ministry of Culture, a process the community opposed due to concerns and potential further indignities. As a result, the Selk’nam opted for burying Hoshkó in a Lübeck cemetery to ensure his immediate dignity and rest, a possibility for a future repatriation to Tierra del Fuego remaining open (German Lost Art Foundation 2024; La Prensa Austral 2024). As can be gathered from reporting on the case, the tensions revolved around the classification of the skull as archaeological material thereby subject to the National Monuments Council’s mandate (Saldivia 2024).

As seen here, relevant factors that shape legislative frameworks on restitution, beyond their subjects and objects of rights, range from the process through which draft laws come into existence to their legitimating framework. None of the draft laws emerged from participatory processes, conflicting with UNDRIP’s call for states to develop repatriation/restitution mechanisms in conjunction with peoples and nationalities (United Nations 2007). From the perspective of rights to prior consultation, the draft laws would need to be drafted by and with the peoples and communities concerned with restitution, entailing thereby a right to negotiate the terms under which restitution will be governed. All frameworks require claimants to be officially recognised, raising tensions with Indigenous self-determination (El-Gendi 2016: 508; Ochoa Jiménez 2024: 132).

Furthermore, an evolution of cultural rights marks a significant shift in international law, expanding from individual human rights to include collective and Indigenous rights over cultural heritage (Gerstenblith 2023: 334–340). This shift allows a reframing in the conversation on restitution, moving away from questions of illegitimate acquisition and toward rights of access and control, emphasizing that holding cultural belongings without consent infringes on cultural rights and disregards Indigenous or marginalized knowledge systems. The “cultural significance” criterion enables restitution even without demonstrating past wrongful taking, foregrounding the right of communities to maintain their cultural identity and access their heritage. However, national legislation largely neglects restitution in terms of the recuperation of belongings as a core aspect of cultural rights. What is more, restitution is not placed within a framework of a right to self-determination and within a path toward legal pluralism. Many advocates now urge for restitution to be placed in the context of a more substantial right to define and manage cultural heritage – also intangible heritage – according to the respective normative orders and systems of belief (Ochoa Jiménez 2022). The state also arguably has a duty to recognise these and support the establishment of means to exercise them (Sogbesan and Laotan-Brown 2022).

To conclude, this section has tried to show the complexity of restitution legislation and the inclusions and exclusions that are written into these frameworks and different forms of legitimations that they rest upon as reflective of top-down approaches and the conspicuous omission in restitution discussions of mention of a dialogue of knowledges which could lead to epistemic and ontological negotiations. As seen here, even when written in the language of reparation, frameworks fall short of acknowledging and repatriating agency and defining power.[21] As I will detail in the final section of this paper, a dialogical approach that foregrounds ethical deliberation, participatory mechanisms, and epistemic justice offers a transformative pathway to address the limitations of restitution frameworks in Argentina, Chile, and Brazil.

Keep reading here to find out more about the restitution policy in Germany.

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Notes

[1] I am grateful to the Prussian Cultural Heritage Foundation and its Ethnological Museum and Asian Art Museum for supporting my leave of absence and to Mecila for enabling me to pursue research as a postdoctoral fellow. I would like to extend special gratitude for invigorating conversations and constructive feedback to Máximo Farro, Maria Luísa Lucas, Samuel Barbosa, Sérgio Costa, Talja Blokland, Fernando Nina, Marlena Barnstorf-Brandes, and Hauke Zießler.

[2] Art historian Bénédicte Savoy has meticulously documented the resistance in Europe, more specifically in Germany, to restitution claims for African cultural heritage made by African leaders and intellectuals following independence. She reveals how these debates were effectively, though temporarily, sidelined and swept under the rug, only to resurface with renewed vigor in the 2010s (Savoy 2021).

[3] The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property adopted by the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1970 was designed to prevent the illicit import, export, and transfer of ownership of cultural property. It obligates signatory states to return cultural goods illegally acquired after the Convention’s ratification. Thus, this Convention does not apply retroactively to items taken before its implementation.

[4] The paper focuses on restitution related to “(post-)colonial contexts” and not on e.g. restitution of Nazi-persecution related expropriated arts and belongings.

[5] Research on restitution paradigms in Latin America could be further enriched by perspectives drawn from the experiences of the U.S., Canada, Australia, and New Zealand, where Indigenous scholars and communities have played a key role in shaping and advancing restitution discourses and practices (Aranui 2018; Herewini 2023). María Julia Ochoa Jiménez’s article, which explores the Argentinian and U.S. contexts, serves as a strong example of such an approach (Ochoa Jiménez 2023).

[6] The notion of diálogo de saberes (dialogue of knowledges) entailing epistemic and ontological negotiation derives from Latin American decolonial thought (Escobar 2007).

[7] The concepts in restitution discourse, such as “object/human remains”, reflect epistemological and ontological tensions (Curtoni 2022; Gouaffo 2023; Tupinambá et al. 2024). In this article, “restitution” and “repatriation” will primarily refer to cultural belongings and human remains, respectively, but be used interchangeably, acknowledging the limitations of this distinction. Quotation marks are used in order to highlight the tensions surrounding conceptions, like those concerning “cultural heritage”. The usage of “(cultural) belongings” aims at highlighting the relational beyond the notion of property.

[8] Restitution claims have in the past arisen from increased visibility and awareness of collections, which remain limited, especially for items held abroad. Claims have been triggered by the public display of specific artifacts in exhibitions or as a consequence of exchanges or collaborative projects between museums and communities. For example, awareness and subsequent claims were sparked by the exhibition of Jurupixuna items in a Portuguese travelling exhibition in Brazil in the 1990s (Belo Gomes 2014; Santos Acerbi 2019) and the display of a loaned Tupinambá feather cape from Denmark‘s National Museum in São Paulo (Roxo 2024). This pattern underscores the crucial role of visibility in driving restitution efforts and the importance of making dispersed cultural belongings more accessible. Ongoing efforts to digitize collections, create databases, and increase transparency and awareness of the existence of collections aim to address this issue.

[9] The terminology surrounding the stakeholders in restitution processes is equally contentious. Following Jeremy Silvester I foreground the usage of “descendant community/ies” (McGregor 2021: 42–43) over the usage of “communities of origin”, aware of critiques of essentialization and the politics surrounding definition and legitimization.

[10] See press releases by the Colombian government and the Prussian Cultural Heritage Foundation (Cancilleria 2023; Stiftung Preußischer Kulturbesitz 2025).

[11] For instance, Río Negro’s 2001 Law 3.468 mandates that claimant communities must be officially recognised (Molina Plaza 2020).

[12] For an overview of repatriations in Argentina see Endere 2022: 241–242.

[13] For insights into the restitution panorama in Chile, see Lopes Fabris 2017; Maza and Ayala Rocabado 2020; Molina Plaza 2020; Atallah Leiva 2023.

[14] The draft constitution would have recognized Indigenous peoples as pre-existing nations with rights to self-determination, legal pluralism, and protection of lands and resources. However, after initial support for constitutional reform in 2020, 62% of voters rejected the proposal in 2022. A second draft, less focused on collective rights, was also rejected in 2023, leaving Chile with its 1980 dictatorship-era Constitution, which does not recognize Indigenous peoples (Aylwin et al. 2024).

[15] See Cámara de diputadas y diputados de Chile 2016.

[16] A draft law to amend the existing National Monuments Law had already been presented in 2018 (12.175-04). It would include a state duty to “repair” the ”goods” of which Indigenous peoples have been deprived of “without consent” (Molina Plaza 2020: 85). This draft law was stopped, however, because it did not follow process of participation and prior consultation. See Cámara de diputadas y diputados de Chile 2018.

[17] With thanks to Daniela Abarzúa Órdenes for the information regarding the current law revision process (personal communication, 7.4.2025).

[18] Draft law 118 was proposed by federal deputy Túlio Gadêlha Sales de Melo, member of the party Rede Sustentabilidade (Gadêlha 2024).

[19] The draft law uses “restitution” and “repatriation” interchangeably.

[20] For insights into the Brazilian restitution panorama, see: Lima Melo 2010; Belo Gomes 2014; Santos Acerbi 2019; Yanase de Rezende 2019; Christofoletti and Santos Acerbi 2021; Brust et al. 2023; Tupinambá et al. 2024.

[21] What has been delineated so far must, beyond issues of practice and implementation, be understood within the context of the everyday continuities of coloniality embedded in structures, lived experiences, and the concrete realities of ongoing dispossession and extractivism, though doing so would go beyond the scope of this article. Carolina Crespo for instance points at how in Argentina from 2016 to 2019, while the INAI conducted repatriations of Indigenous ancestral remains, framed within a human rights discourse, national security forces simultaneously carried out violent repressions against Mapuche communities, bolstered by government and media defamation to legitimize these actions (Crespo 2022: 153)

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About the Author

Julia von Sigsfeld (Mecila Junior Fellow, 2024) earned a master’s degree from the London School of Economics after completing her undergraduate studies at at Goethe-Universität Frankfurt am Main. In 2020, she completed a PhD in the sociology of knowledge at the Lateinamerika-Institut, Freie Universität Berlin, as a fellow of the International Research Training Group “Minor Cosmopolitanisms”. Following two and a half years as research assistant to the director of the State Ethnographic Collections of Saxony, Julia von Sigsfeld is, at the time of this working paper’s publication, serving as restitution officer at the Ethnological Museum / Asian Art Museum (Prussian Cultural Heritage Foundation) in the framework of the project “The Collaborative Museum”.

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Citation: Julia von Sigsfeld, Restitution and Postcolonial Justice. A Dialogical Approach, in: TRAFO – Blog for Transregional Research, 09.07.2026, https://trafo.hypotheses.org/66346

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