Apr 18, 2025

Introduction
I. Background 
            A. Existing Law and Policy Surrounding Nazi-Looted Art in the United States 
            B. Ethical Guidelines on Museums
                 1. The Association of Art Museum Directors
                 2. The American Alliance of Museums
                 3. The International Council of Museums
II. Addressing Concerns About the New York Nazi-Looted Art Display Law
            A. Enforcement and Selective Knowledge by Museums
            B. First Amendment Compelled Speech
            C. Is a Legal Obligation Superior to Voluntary Action?
III. Proposed Solutions for Greater Transparency in Museum Collections
            A. Creating a New Federal Agency for Museum Governance
            B. Defining the Colonial Era and Other Important Vocabulary
            C. The Role of Museums as Vestiges of Colonialism
            D. Looking Beyond the Labels to Improve Museum Transparency
Conclusion

Introduction

   “Up to the 1890s, the West African Kingdom of Benin resisted British colonial control. In 1897, a highly provocative British mission to Benin City was attacked and its 230 African and seven British members were killed. This triggered a large-scale British military expedition.”¹

    This selection of text accompanied the display of fifty-six Benin bronze plaques displayed in the British Museum in 2021.² What this statement fails to describe is the sheer magnitude of the ambush, invasion, and subsequent massacre in Benin City during this time. Instead, the Museum’s passive stance on this historical event shifts the blame away from the British and diminishes the tragedy they provoked.

    In the late nineteenth century, the British Empire violently took control of the Kingdom of Benin, located today in part of southern Nigeria.³ As a part of its plan for colonial expansion, the British saw immense trade opportunities with the Kingdom of Benin, but they were reluctant to abide by Benin’s trade conditions.⁴ The raid on Benin was a stark turning point for the long history of the Kingdom, but it began as an allegedly peaceful trading expedition by the British.⁵ Tensions were already growing between the two, and the estimated arrival of the British would interfere with annual royal rituals.⁶ Some chiefs, against the wishes of Oba (King) Ovonramwen, ordered an attack on the British crew to prevent the disruption.⁷ This event gave the British Empire the perfect excuse to conduct an immediate military expedition to mercilessly gain control of the Kingdom and its resources.⁸

    The plaque in the British Museum continues: “Benin City suffered a violent and devastating occupation with many casualties. Objects were plundered from palaces and shrines, including nearly 1000 brass plaques.... Thousands of objects were brought to Britain, as official ‘spoils of war’ and personal trophies.”⁹ Benin City suffered, at the hands of the British. In response to the seven officials killed in the ambush, the British sent roughly 1,200 troops, where they forcibly removed Oba Ovonramwen, ransacked and burned down the palace grounds, and transported at least 3,000 works of art to England.¹⁰

    The Museum’s careful phrasing and use of passive voice allows visitors to overlook the sheer violence perpetrated by the British.¹¹ This destruction of culture is still a relevant topic today, as Nigeria struggles to gain back its cultural property, piece by piece.¹² Further, with an average of four and a half million visitors a year,¹³ this history is taught to a global audience who may rely on no other authority than the Museum alone. As the self-appointed safekeepers of these stolen items, the Museum has an obligation to educate the public with a more truthful story by actively, rather than passively, admitting to the atrocity.¹⁴

    The British Museum is not the only institution that must pay closer attention to the labels that accompany art and artifacts. Museums across the United States have their own combinations of laws and ethical guidelines to follow, but as a whole, there are few firm regulations that monitor the content and language of these informational plaques.¹⁵ In 2022, the state of New York took a leap by amending an existing law to require museums to acknowledge and identify any works on display that were stolen in Europe during the Nazi era.¹⁶ The statute passed as part of a legislative campaign to “honor and support Holocaust survivors in educational, cultural, and financial institutions,” and to improve education about the Holocaust.¹⁷ The Nazi regime stole what is estimated to be over 600,000 works of art from Jewish citizens,¹⁸ and United States legislators have been vocal about their commitment to fostering a system that allows Holocaust survivors and their descendants to reclaim the rightful title to the artwork.¹⁹

    The New York law is certainly not a perfect solution to the problem, but it is an attempt to hold museums accountable when they might otherwise be left alone. Museums across the country house works that once changed hands through dubious means, for even a voluntary transfer may not be viewed as such in light of threats, unspoken fears, or withheld information.²⁰ While much can be speculated from the global occurrences of warfare, conquest, and colonization, museums must conduct extensive provenance research to confidently reveal a previous unlawful exchange of hands.²¹ And, in fact, many museums have voluntarily adopted internal policies to publicize the chain of ownership so that visitors can see the information for themselves.²² Outside organizations have helped promulgate ethical guidelines that, in part, encourage exactly what New York has now codified into law.²³

    Greater issues arise, though, when it comes to art from the colonial era. A lack of documentation, varying understandings of what constitutes the colonial era, and difficulty determining which transfers of objects were illegal all complicate how museums conduct research and inform the public.²⁴ This Note argues that the current standards regarding the display of colonial era artwork must be addressed through a new form of oversight and enforcement. In order to understand why the law and policies surrounding museums’ duties should change, it is important to first understand the existing frameworks that guide the choices museums make today. Part I of this Note provides the relevant background, first taking a brief look at the impact of the Nazis on the art world and addressing some of the leading guidelines and legislation about provenance research and restitution claims for Nazi-looted art. Part I then discusses additional background on the current ethical guidelines for museums from three leading organizations.

    Part II discusses why the New York law is likely to be unsuccessful, including some of the primary arguments made against this law. This Part helps illustrate why a strictly legal model that mandates what information is displayed alongside art is not the best solution to creating more transparency in museums. Part III then proposes a regulatory and oversight solution to ensure better museum practices, followed by a more practical ethical model that museums can adhere to. This model specifically addresses alternative actions museums can take, including what museums should share with the public, and what terminology is recommended. This model draws on the existing framework for Nazi-looted art, but it notes the additional intricacies of colonial era art in museums and how those differences call for additional measures by museums. Ultimately, the solution asks museums to engage with their imperialist background by sharing more complete histories with the public and inviting historically excluded voices to shape the future of the institutions.

I. Background Information

    This Part first addresses the most concrete laws and guidelines that influence a museum’s handling and display of stolen art. These laws and guidelines are solely intended to aid in identifying works that were stolen during the Nazi era. This Part also explores the reasons why such a specific framework is possible.

     This Part then introduces the primary ethical guidelines that many museums voluntarily agree to adhere to. Said guidelines are neither binding nor applicable to every museum in the United States, but they allow for a system of self-policing and result in negative consequences should the proper circumstances arise. This Part addresses how many of the principles behind the guidelines on Nazi-looted art can serve as a model for the treatment of colonial era art.

A. Existing Law and Policy Surrounding Nazi-Looted Art in the United States

    The scars of the Nazi reign of terror from 1933 to 1945 are widespread and long-lasting. Unlike the many property thefts throughout history that were made by conquerors and their soldiers, the “Nazi plunder” was an official and systemic policy to “loot and plunder art and to destroy any ‘alternative’ culture.”²⁵ This plan to eradicate minority groups, primarily the Jewish population, involved theft through seizure or forced sale of at least one-fifth of all Western art in existence at the time.²⁶

    By the 1990s, with improvements in technology and a resurgence in public concern over the recovery and restitution of these stolen works of art, the United States government stepped in to appease concerns.²⁷ One such action was the signing of the Washington Conference Principles on Nazi-Confiscated Art (Washington Principles).²⁸ This conference, held in 1998 and attended by representatives of forty-four countries, constructed the leading framework to improve the system for returning Nazi-looted art to its rightful owners.²⁹ Of the eleven outlined principles, three are most relevant to this discussion: (1) “Art that has been confiscated by the Nazis and not subsequently restituted should be identified;” (2) “Resources and personnel should be made available to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently restituted;” and (3) “Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs.”³⁰ These principles highlight the importance of conducting thorough research on items in a museum’s collection as well as making those findings available to the public.

    The U.S. once again congregated with foreign nations in 2009 to reaffirm the Washington Principles with the Terezín Declaration, imploring public and private institutions to continue their research efforts and ensuring that legal systems or alternative processes make restitution claims possible for Holocaust victims.³¹ It is important to note that neither the Washington Principles nor the Terezín Declaration are legally binding, so although their intentions are well-meaning, the U.S. has little incentive to follow through with these agreements.³²

    In 2016, Congress enacted the Holocaust Expropriated Art Recovery Act of 2016 (HEAR Act) to support its previous advice³³ and promote the goal of ensuring that “laws governing claims to Nazi-confiscated art and other property further United States policy as set forth in the Washington Conference Principles on Nazi-Confiscated Art, the Holocaust Victims Redress Act, and the Terezin Declaration.”³⁴ Despite the supposed ease that this Act created for survivors to file successful claims, alternate barriers have nonetheless prevented many plaintiffs’ success.³⁵ Nonetheless, the HEAR Act and its policy predecessors promote the importance of thorough provenance research to help victims become aware that they may have a claim in the first place.

    While the HEAR Act is the first instance of a law on the books to address this specific concern, it does not provide any sort of binding policy on museums that acquire and house previously-stolen artwork to openly disclose the stolen nature of the work.³⁶ Without such possibility of enforcement, not only do potential claimants suffer, but the wider public is also deprived of this information. Because of this shortfall, non-governmental museum-governing institutions turned their attention to ensuring some degree of compliance and transparency.

B. Ethical Guidelines on Museums

    Around the same time as this restitution resurgence in the 1990s, the role that museums played became integral to the discussion. The Association of Art Museum Directors (AAMD), the American Alliance of Museums (AAM), and the International Council of Museums (ICOM) are three institutions that set forth their own ethical guidelines for handling Nazi-looted art.³⁷ These policies all address the importance of sharing provenance history with the public, and they serve as a reminder of museums’ roles as the protectors and promotors of heritage.³⁸

1. The Association of Art Museum Directors

    The AAMD is a membership organization for directors of art museums in the U.S., Mexico, and Canada.³⁹ With 209 members, the AAMD demands adherence to its Code of Ethics and support of its mission to promote “engagement, leadership, and shared learning.”⁴⁰ Members are “dedicated, first and foremost, to the fulfillment of their museums’ missions to serve the public through art and art education.”⁴¹ Throughout its history, the AAMD has continued to publish reports and propose guidelines on the best practices for museums regarding a variety of topics.⁴²

    In the Report of the AMMD Task Force on the Spoliation of Art During the Nazi/World War II Era, the AAMD specified that museums should notify the public if they discover that a work of art in their collection was confiscated during the Nazi era and not subsequently restituted.⁴³ More recently, in 2022, the AAMD published Guidance on Art from Colonized Areas, and it recognized that its guidelines on art from the Nazi era may prove to be a useful model.⁴⁴ In recognizing the museum’s function as an educator, the AAMD highlights the importance of transparency, particularly regarding the context in which a work was historically used or displayed as well as its transfer in ownership.⁴⁵ Additionally, these guidelines provide examples of ways to categorize the function⁴⁶ and transfer⁴⁷ of the works.

2. The American Alliance of Museums

    The AAM is an organization that represents 35,000 museums and professionals in the field, including art and history museums, science centers, and zoos.⁴⁸ In speaking on its ethics, standards, and professional practices, the AAM’s goal is to promote the preservation and education of natural and cultural heritage.⁴⁹ The organization seeks to enact this goal by helping museums implement policies and procedures based on its findings.⁵⁰

    Like the AAMD, the AAM has its own set of guidelines for how museums can best manage artwork confiscated by the Nazis, stating that the practice of “ethical stewardship is paramount.”⁵¹ Under these guidelines, museums are encouraged to make provenance information available to the public and to continue provenance research.⁵² Importantly, the AAM specifies that this information should not just be limited to works on physical display in the museum, but that online access to the collections and their respective history should also be prioritized.⁵³

3. The International Council of Museums

    ICOM is another non-governmental membership organization whose mission is to help establish “professional and ethical standards for museum[s].”⁵⁴ ICOM’s Code of Ethics touches on the important role that museums play in communities.⁵⁵ One of its principles is that “[m]useums have the duty to acquire, preserve[,] and promote their collections” as a part of their efforts to safeguard the world’s cultural heritage.⁵⁶ Museums are held in trust for the benefit of society, and “[i]nherent in this public trust is the notion of stewardship.”⁵⁷ Under ICOM’s definition of stewardship, museums must undertake concerted efforts to conduct provenance history, disclose rightful ownership, document all findings, and maintain accessibility of the works.⁵⁸ Part II will discuss some of the ways that museums uphold ICOM’s ethical principles in the context of Nazi-looted art among collections, and Part III will explain how these same concerns can be applied to colonial era art.

II. Addressing Concerns About the New York Nazi-Looted Art Display Law

    New York’s law requiring museums to provide notice about art stolen by the Nazis is intended to promote the education and remembrance of the Holocaust, and in particular, prevent U.S. museums from possessing and displaying stolen work without acknowledging this dark stain on history.⁵⁹ It has the secondary effect of promoting the ethical goals that museum-governing organizations have lauded, which is to provide notice to the public about an artwork’s provenance.⁶⁰ This Note intends to highlight the latter reasoning because it can reveal some of the pros and cons of requiring museums to divulge such information.

    This Part discusses some of the pressing concerns about the law’s efficacy, first covering the law’s enforceability and its potential to disincentivize transparency. Next, it addresses the First Amendment concerns regarding the government compelling speech from museums. Finally, this Part looks at what other museums are voluntarily doing and considers whether a state-imposed requirement is a better tool to promote the ultimate goal of greater transparency for the public.

A. Enforcement and Selective Knowledge by Museums

    One concern raised by critics of the notice requirement imposed on New York museums is that despite its laudable goals, it will be substantially ineffective due to its lack of enforceability.⁶¹ The law leaves open many ambiguities that may effectively shield museums from taking greater responsibility for their provenance history research and the information they disclose to the public.

    In essence, the statute tasks museums with interpreting and policing themselves. Applicable artworks under the statute are ones that “changed hands due to theft, seizure, confiscation, forced sale[,] or other involuntary means in Europe during the Nazi era.”⁶² This may seem straightforward on its face, but the law goes no further in outlining under what conditions an artwork is considered involuntarily transferred.⁶³

    Some of these uncertainties include, for example, that the law offers no clarification on whether an artwork that was previously restituted to a descendent with an ownership claim before the museum acquired the work falls under the notice requirement.⁶⁴ Similarly, there are cases where Holocaust victims or their descendants sued museums in an attempt to reclaim wrongfully dispossessed artwork but were unsuccessful in their attempts.⁶⁵ Under the existing statutory language, a museum may assert that no label is required for a work in light of a court ruling that a party failed to prove there was an improper transfer in the eyes of the law.⁶⁶ That determination likely extends to lawsuits that were dismissed or resolved on procedural grounds before getting to the merits of the case as well, which is a common occurrence.⁶⁷ Also unclear is what happens when museums and claimants reach a private settlement over the disputed rightful ownership of an artwork.⁶⁸ When situations such as these arise, the law leaves the power in the hands of the museum, but this power extends even further.

    The importance of provenance research has continued to grow in the eyes of the public, and this principle is reflected in the suggestions made by the U.S. government and by museum-governing organizations.⁶⁹ Today, museums are encouraged to conduct extensive provenance research in their existing expansive collections before acquiring a work of art.⁷⁰ This research aids museums in their acquisitions because it puts them on alert for artwork that was stolen or misappropriated in other ways, helping them make smarter and more ethical decisions about whether to display, acquire, loan, or deaccession artwork.⁷¹ For example, an artifact that was illegally exported from a foreign country and is floating around on the black market is off-limits for a museum purchase, so the findings of the research protect museums from making an illegal acquisition.⁷² The same moral principles apply to acquisitions of works of fine art, but there are complications when documentation of such transfers is lacking in specificity or nonexistent. Because the Nazis maintained such detailed records, it has been easier for museums and private individuals to retrace the historical record of the art than that of works from other places and times, including colonial era art.⁷³

    Importantly, provenance research is also a useful tool in notifying potential claimants of property that they have an ownership claim too.⁷⁴ In the context of the New York statute, though, the law only requires that “identifiable works of art” that are “known to have ... changed hands” during the Nazi era be labeled.⁷⁵ Works whose origins are disputed or are entirely unknown to a museum may remain on display unlabeled, or the work may remain locked away from the public and off display entirely.⁷⁶ Without an explicit legal requirement to conduct provenance research, museums remain free to interpret these ambiguities in their favor.⁷⁷

    The gaping holes left open by the New York statute indicate that museums have ample opportunities to skirt the requirements of the law.⁷⁸ Their rationales for doing so may vary, but avoiding the costs of litigation is likely a strong incentive. By providing notice to the public that a work of art was stolen by, or coercively transferred to, the Nazis, museums signal to the members of the public that they may have a superior claim of title to the piece over the museum. Because museums are the ones who will house, research, and display the works of art, they have the final say in which works trigger application of the law, and the public will remain none the wiser.⁷⁹

B. First Amendment Compelled Speech

    Another concern raised by the passage of this law is that requiring this signage is an example of unconstitutional compelled speech violative of the First Amendment.⁸⁰ The support for this stance is that the Supreme Court has interpreted the First Amendment’s speech protections to include the right not to speak.⁸¹ Thus, the state is compelling speech from the museums by forcing them to make statements they do not support or wish to speak about at all.⁸² Despite the government compelling speech here, this constitutional concern should not be an impediment to the law’s application.

    In West Virginia State Board of Education v. Barnette, the Supreme Court was presented with a challenge to a West Virginia statute that required students to salute the United States flag and recite the Pledge of Allegiance in schools.⁸³ The statute was passed in an effort to encourage patriotism and a sense of national identity.⁸⁴ The Court held it to be unconstitutional, reasoning that the government was pushing its own ideals upon unwilling participants.⁸⁵ Similarly, in Wooley v. Maynard, the Supreme Court found that a New Hampshire statute requiring the display of the state motto on license plates violated the First Amendment.⁸⁶ By enforcing this law, the state was unconstitutionally disseminating its own ideological, expressive message on the private property of another.⁸⁷

    The Barnette and Maynard rulings do not mean that every instance in which the government attempts to compel speech from private individuals will be deemed unconstitutional. As a preliminary matter, Supreme Court precedent states that content-based regulations “are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.”⁸⁸ The New York law is a content-based regulation because it draws a distinction based on the subject matter of the speech. That is, the law requires museums to “speak” by providing notice to museum-goers when a work of art was stolen by the Nazis, but does not require museums to post the provenance of other works even if they were stolen in another context.⁸⁹

    Despite being content-based, the law is distinguishable from the above-referenced cases because it does not require museums to promote any expressive message—it requires disclosure of a fact. There are ordinary disclosure laws applicable in various settings that the Supreme Court has recognized as constitutional despite such laws incidentally burdening speech.⁹⁰ The Court recognized that these exceptions to the general rule include required disclosure of “factual, noncontroversial information” in commercial speech when that speech is related to the advertised product or service.⁹¹ However, in dissent, Justice Breyer was keen to point out that many other disclosure requirements are entirely permissible.⁹² This list includes laws requiring hospitals to tell parents about child seat belt laws, laws requiring signs that show the location of stairs in a building, and laws requiring property owners to inform tenants of the proper procedures to dispose of garbage.⁹³ In these instances, such regulations were able to stand. Because the New York law merely requires museums to post the undisputed and factual information that a work of art was misappropriated by the Nazis—it does not require museums to explicitly denounce antisemitism, for example—this instance of compelled speech will likely be upheld if challenged in court.

C. Is a Legal Obligation Superior to Voluntary Action?

    Museums serve many functions beyond merely collecting and curating art. Museums are preservationists of cultural heritage and ethical stewards of education; they are meant to engage with communities to increase knowledge, understanding, and respect of the vast cultures that have taken shape across centuries.⁹⁴ “A museum’s collection exists to serve its public purpose of educating and enriching the public visiting the museum.”⁹⁵ Part of this obligation to the public means that museums should present the most thorough and transparent version of history being showcased, and it is important that such information is paired with art and artifacts from a museum’s collection.⁹⁶ Members of the public are free to peruse a collection at their own pace, giving as much or as little time and attention to the works and placards as they wish, but they should not be deprived of this information.

    Because the enforceability of the New York statute remains in question, and museums retain much of the same power despite the regulation,⁹⁷ the question comes down to whether such a regulation is needed in the first place. The statute creates a requirement that museums label provenance history, something that many museums across the country have already voluntarily adopted, indicating a shared sentiment that this type of disclosure is crucial.⁹⁸ Further, the museums adopting such policies are not limiting disclosure to Nazi-looted art but extending it to artwork stolen in various corners of the earth and from other times in history.⁹⁹

    Public criticism played a major role in the current changes to these museum practices. The criticism touches on the power that museums wield and how their actions influence the potential to return artwork to its rightful owners,¹⁰⁰ but it also addresses a higher ethical bar for museums to correct and engage in discourse that reflects the darker underbelly of the world of fine arts and cultural heritage objects, including museum complicity in white-washing history.¹⁰¹ This means that expectations are heightened for museums to increase not only research efforts and transparency of the historical record, but also public access to collections and diversity within the workplace.¹⁰² With added financial strains due to the COVID-19 pandemic, museums must conform to this public pressure to continue operating.¹⁰³

    Provenance history disclosures are a key portion of the puzzle in holding museums to their ethical commitments, but publication of this information is not the entire solution. New York’s statute is an attempt to send a message to the public that the state is concerned about the educational and ethical role that museums play. Such an affirmative declaration is consistent with New York’s aggressive stance towards investigating, seizing, and prosecuting stolen or illegally-acquired art and antiquities that museums do not have ownership rights to.¹⁰⁴ But because so many of the museums in the country have already voluntarily adopted similar policies to the one that New York now requires by law,¹⁰⁵ and because enforcement of the law will be difficult without museum cooperation,¹⁰⁶ the statute operates more like a showpiece than a substantial piece of legislation. Further, to act more in accordance with their ethical duties to the public, museum transparency must go beyond only provenance history and in addition consider the entire body of information and sentence construction that accompanies a work of art. Part III of this Note will discuss two possible solutions to help ensure museums better uphold their commitments to the public.

III. Proposed Solutions for Greater Transparency in Museum Collections

    Museums must improve the ways in which they inform the public about the world’s cultural heritage, including colonial era art. As guardians and informants of culture, the factual information shared alongside a work of art is an important component.¹⁰⁷ It helps visitors to better understand the context of how an object was made, what its intended purpose was, and how it made its way into the museum’s collection. They are fragments of history that could easily be lost to time without preservation efforts, but this history can be biased and incomplete.

    This Part proposes a solution that could govern museum practices so that they uphold their duties and abide by ethical obligations in ways that law and self-governance has failed. Because this solution is likely to fail, this Part offers an alternate, ethical approach that museums can take, starting first with how to describe the colonial era and drawing distinctions between key terms. These methods will help to craft a more honest retelling of the history of the works in a collection. It then takes a broad look at the history of museums as an elite institution before suggesting ways that museum governance can become more inclusive. In this way, museums can uphold their commitments to the public by sharing more (in quantity and accuracy) information among a greater number of people.

A. Creating a New Federal Agency for Museum Governance

    The best way to address the issues laid out in this Note would be for Congress to establish a federal agency that can establish rules and standards that museums must follow, and such an agency could prevail in ways that the voluntary guidelines or state law cannot. Through this structure, an agency could set forth rules dictating what constitutes “reasonable” practices for provenance research, labeling, display, and more. More importantly, these rules would also come with an enforcement mechanism.

    A museum agency would be able to create rules, execute those rules, and adjudicate regulatory matters in a more successful way than state law.¹⁰⁸ One major flaw in the New York law is that it has no real means to ensure compliance.¹⁰⁹ Aside from its vagueness about which works are subject to the label mandate, the law allows for multiple ways that a museum can skirt its requirements and keep its internal practices hidden.¹¹⁰ In contrast, an agency could promulgate a more expansive collection of rules and policies, monitor museum actions by conducting investigations, and mandate disclosures from the institutions.¹¹¹ Further, when investigations reveal violations of the rules, an agency could fine museums or engage in other financial penalties.¹¹² The risk of these penalties alone may coerce museums into compliance.

    Museums do not currently operate without assuming some danger of sanctions, as some of the existing museum-governing bodies have this power. For example, when an AAMD member violates the policy on deaccessioning works, the AAMD may suspend the loans it previously granted to the museum, or it may limit the museum’s ability to collaborate with other member museums.¹¹³ An agency could look to organizations like the AAMD and AAM for guidance and feedback on the rules they propose, and the final result could look extremely similar to the guidelines already offered.¹¹⁴ Unlike these organizations, where eligible applicants agree to abide by ethical codes,¹¹⁵ an agency’s rules would apply to museums whether they agree to them or not.

    Arts-related agencies already exist, but none have the capacity to perform the types of oversight and enforcement actions that are necessary to improve transparency and accountability of museums. The National Foundation on the Arts and Humanities was created to “encourage[] and support ... national progress and scholarship in the humanities and the arts,” in the form of public funding.¹¹⁶ This agency, and its sub-agencies, are not afforded the statutory power to perform any type of supervisory functions, so they lack the ability to create rules related to museum practices, particularly their collecting and display of potentially-stolen work.¹¹⁷ As a result, Congress would need to create a new agency from the ground up, which would be time-consuming and expensive.

    A sufficiently funded agency could rely on the advice and expertise of art historians, curators, cultural heritage experts, and community members themselves. The agency could compare successful practices from museums not just across the nation but look to studies and practices from museums across the world. It would create a central hub for creative thinkers to determine pathways that increase the accountability and performance of museums. It would be accomplished through this shared knowledge, critical investigation, public participation, and enforcement mechanisms, but this is not a realistic goal. For now, at least, public pressure and public scrutiny must propel museums to regulate themselves and strive towards better practices.

B. Defining the Colonial Era and Other Important Vocabulary

    As educators of the public, museums face challenges regarding what to say to viewers of their collections. Historically, Western museums treated the display of non-Western works, particularly works made by individuals of previously colonized groups, differently due to pervasive stereotypes and a belief in the supremacy of the white race.¹¹⁸ For example, art from North America, Europe, and East Asia often is referred to as “fine art” and “antiques,” while art from Africa, Central and South America, and Indigenous North America has commonly been called “ethnographic” or “tribal” art, with little regard to the function or age of the pieces.¹¹⁹ And like the British Museum’s display of a selection of the Benin Bronzes, descriptive captions of artwork from conquered or colonized people may take on the passive voice, deflecting fault away from the aggressors.¹²⁰ In speaking on the need for greater transparency, museums should not only publicize the provenance history of works, but they should create clearer standards on the terminology they choose when describing works of art.

    One difficulty in describing colonial era artwork is selecting the proper terms and phrases that accurately reflect the context in which the works originally transferred hands. Different standards governed what was a justified, legal taking than what we understand today.¹²¹ On one extreme lies objects that were made for trade or sale, while on the opposite end of the spectrum are objects acquired as a result of wartime plunder.¹²² In between lies the difficulty—how can museums discern what objects were transferred under duress, what was a legal “spoil of war,” and what may have been voluntarily discarded?¹²³ This requires a closer look at how wartime looting has historically been considered.

    In Ancient Rome, the taking of an enemy’s treasures was seen as a standard part of warfare and a symbol of glory.¹²⁴ These spoils of war were set aside for the gods, paraded through the streets, and displayed in the Roman Forum for all to see.¹²⁵ These kinds of celebratory practices continued, but at the end of the eighteenth century, the French escalated these looting tactics.¹²⁶ Under Napoleon’s rule, unorganized looting was transformed into “official confiscations,” where defeated parties signed peace treaties that included clauses for the French to acquire artwork.¹²⁷ While these seizures may have been legal, some critics spoke out against the practice. Art theorist and historian Quatrèmere de Quincy argued that art should stay where it was made because the work’s meaning derives from the local context and customs and can only be truly appreciated in that setting.¹²⁸

    Other detractors spoke out against Napoleon’s practice, and by the middle of the nineteenth century, Western mindsets were clearly shifting.¹²⁹ In the 1860s, English laws prohibited pillaging and only allowed taking artworks in instances of “military retaliation.”¹³⁰ The 1874 Brussels Declaration permitted an occupying army to take supplies that could be used to help wage war, but pillaging of private property, including works of art, was forbidden.¹³¹ The 1899 Hague Convention reiterated this standard and explicitly stated that cultural property should be protected.¹³² At this same time though, these rules were not consistently enforced when the fighting occurred beyond European borders because many Europeans did not consider these nations to be “civilized.”¹³³

    During the time of European colonialism in the nineteenth century, it is clear that mindsets had shifted about art as war prizes, but the attitudes varied depending on the identity of the opposition—“[t]he unwritten rules of warfare were that artwork should be safeguarded and not pillaged, unless and until the enemy was considered culturally or racially inferior and, therefore, unworthy of their own artistic production.”¹³⁴ Looking at this context from today’s understanding, we can see that bigotry and racism allowed these practices to continue, but with this hindsight, museums are in a special position to challenge that once-accepted viewpoint.

    By describing looted colonial era artwork as “spoils of war” museums imply that this was a legal practice, but it is now evident that this is not the entire story. In failing to correct or elaborate further, museums become complicit in softening the violent and invasive efforts by European colonizers.¹³⁵ Museums are in a unique position to tell the public what history was, but they “cannot be neutral vessels.”¹³⁶ Every story they tell, every paragraph of text accompanying a work of art, is an opportunity to reinforce outdated wisdom and biases. Without acknowledging the extreme power imbalance that existed, museums only serve to legitimize the atrocities committed.

    In order to better inform the public about the works in their collections, museum staff must make a series of determinations to more accurately describe the pieces. A uniform solution, such as an agency, is likely impossible, but there are multiple objective considerations that museums can make. One such consideration is determining the legal status of the removal, and whether this occurred during a period of colonization or armed conflict.¹³⁷ Since the above paragraphs reveal that the legality of these transfers may be ambiguous and insufficient on their own, there are additional considerations museums may take into account. This includes determining the likelihood that the object was given or sold freely, the means by which the object left its place of origin, and the intended purpose and life cycle of the object.¹³⁸ This is not an exhaustive list, but studying the history of an object can help in drafting more mindful labels that accompany art in museums.

C. The Role of Museums as Vestiges of Colonialism

    The museum, as an institution, is inextricably tied to colonialism, so museum practices should seek to acknowledge this past while shaping their futures. The rise of national museums in Europe in the nineteenth century occurred in part because colonial and military expeditions, archaeological excavations, missionaries, and other means of collecting knowledge were at their peak.¹³⁹ This “collecting” was sometimes done in the name of science, while at other times, it was simply a product of the European invasion and theft of colonized people.¹⁴⁰ The museum stood to enlighten the public on the wonders of the world, but this form of display reinforced hierarchies of race, ethnicity, and gender that are still visible today.¹⁴¹ In turn, the museum was not a place for the public at large, but rather an elite social club for wealthy, white (mostly male) citizens of reigning imperial powers.¹⁴²

    Westerners continued to collect and display works under the rationale that they were the preservers of material culture, yet this self-imposed title sent the message that only Westerners were capable of such preservation.¹⁴³ This message has continued to be reinforced today as some museums push back against repatriation requests, citing fears that the nation of origin cannot sufficiently protect or care for the works.¹⁴⁴ The result is that museums house items completely isolated from the geography and context in which they were created and from which they derive meaning. They are trapped behind panes of glass like trophies of conquest rather than celebrations of creativity and craftsmanship.¹⁴⁵

    Museums in the United States copied some of the stated purposes of European national museums, hoping to be places for “understanding, tolerance, and the dissipation of ignorance ... and prejudice.”¹⁴⁶ Yet many of these museums suffer from similar discrepancies in preaching tolerance while memorializing colonialism due to the contents of their collections. Instead of attempting to become neutral, authoritative voices, they should encourage skepticism and debate over, not just the works they possess, but the way the works are displayed and described.¹⁴⁷ The role of the museum is shifting in society today, but the founding principles can still guide better practices that are more sensitive to history. While museums may never be able to completely decolonize as long as they retain and display art that unethically exchanged hands, their commitments to the public do highlight additional ways that they can be better stewards of art and cultural heritage.

D. Looking Beyond the Labels to Improve Museum Transparency

    ICOM describes a museum as a not-for-profit institution open to the public and in service of society—they are intended to be accessible, inclusive, and ethical.¹⁴⁸ ICOM specifies that museums should engage with communities, offer educational experiences, and promote reflection and sharing of knowledge.¹⁴⁹ In the United States, public museums are deemed by law to hold their collections for the benefit of the public.¹⁵⁰ These museums are held in trust, and the decisions made by the boards of trustees must be made with the public in mind.¹⁵¹ Since this engagement with members of the public is essential to the operation of a museum, transparency should not just be about disclosing the provenance history and creating more historically accurate descriptions, but it should extend to the broader activities and functions of museums.

    The racial and socioeconomic hierarchies that once limited museum space to wealthy, white, and educated individuals are still present today.¹⁵² Museums attract a high percentage of white visitors, and studies show that museum attendance is directly correlated to education and wealth.¹⁵³ Some contributing factors are the lack of early exposure to the arts in the education system among racial minorities, as well as the systemic exclusion of Black students from higher education.¹⁵⁴ Museums frequently charge admission fees, and their operating hours can be extremely limited, such that people who work the traditional Monday through Friday nine-to-fives may be unable to visit themselves or take their children.¹⁵⁵ These same factors have also created a barrier to entry in museum-related careers and trustee positions, thus entrenching the exclusionary principles long-held in museums.¹⁵⁶

    The racial makeup of museum boards of directors or trustees is overwhelmingly white, and museums rely heavily on donations from these trustees.¹⁵⁷ Museums want to ensure good working relationships with these individuals so that they can continue to receive financial gifts and donations of artwork to their collections, but the consequence is that these wealthy patrons hold more power to dictate what is shown in museums.¹⁵⁸ When it comes to the display of colonial era art, this can result in less of it being displayed in favor of Eurocentric art styles that match the tastes of the trustees.¹⁵⁹ Because provenance and other historical research is costly and time-consuming, information on colonial era works may not be updated, relegating those works out of view or sidelined to less esteemed display locations.¹⁶⁰ Ultimately, it is the public that will suffer from these choices.

    Accessibility is a key component of museums, but accessibility in this case has multiple definitions. Important to this discussion is accessibility of information. If museums do not open themselves up to programming that facilitates community engagement, encourages career paths in the arts, and opens doors for more diverse leadership, including trustee positions, curators, conservators, and docents, then the “public” they are informing is not very public at all. When art history is no longer only shared from the wealthy, white elite to the wealthy, white elite, then museums will be one step closer to upholding the commitments they have made in protecting and sharing the world’s cultural heritage.

Conclusion

    The museum as an institution has undergone significant changes to how it collects, displays, and engages with the public. These changes have often coincided with shifts in social norms and public debate. While these institutions remain preservers of culture and facilitators of learning, additional efforts must be made to improve the transparency of museums’ collections and collecting practices.

    In the context of looted art, the largest developments of legal and ethical models have addressed artwork forcibly exchanged at the will of the Nazi regime. While some of these efforts focus on creating a better model to allow for heirs of stolen works to reclaim title and possession, others highlight the benefit of disclosing this dark history, both for the heirs and for the public at large. This type of disclosure, though, may not prove successful when legally mandated, and those issues remain when looking at colonial era artwork as well.

    While measures addressing Nazi-looted art help to highlight the importance of provenance research and the role that museum labeling plays, there are added difficulties and unique factors when working with colonial era art. In order to properly address these factors with the necessary time, funding, and expertise, an administrative agency focused on the oversight and regulation of museum practices should be created.

    Because such an agency is unlikely, museums should focus on the ways that they can self-regulate and stray from old models of operation. Since museums are inherently tied to imperial practices, the acquisition and display of colonial era work by museums must be treated with additional care, and these institutions should reflect on the ways that they have existed which exclude, promote biases and stereotypes, and condone the violent practices of the past. As a result, museums cannot just disclose the provenance history, but must instead consider all the ways that they research an object and describe the art to viewers. In addition, they must evaluate their hiring practices and community engagement efforts that either promote positive change within the institution or continue to fail the very groups who are still subjected to exclusion and prejudice.

    There is no one “right” way to resolve the issues, but the considerations above may guide museums on how to address the concerns on an individualized basis. Then, museums may better uphold their duties to fully educate the public and honor the artwork they possess.

* J.D. Candidate, 2025, William & Mary Law School. B.A., Studio Art, Art History & Archaeology, 2020, Washington University in St. Louis. I would like to thank the William & Mary Law Review staff for their attentive feedback and editing, and Madison Schwarzberger for her incredible guidance in shaping this Note. To my parents, thank you for teaching me to be curious about the world. You helped fan the flame for my love of the arts, and your endless sacrifices, love, and support have allowed me to chase all my dreams.