A. The status of those making the request and continuity with remains
Genealogical descendants: If individuals can demonstrate a direct and close genealogical link to the human remains, their wishes would generally be given very strong weight. However, consideration should be given as to whether they are the only people in this category and if they are not, whether there was any risk of harm to others in this category if the request being made were granted.
There may be exceptional cases where remains would not be returned to genealogical descendants. However, it is expected that in the majority of cases they would be, or that consent would be required from the descendants for any further use by a museum.
In practice, individuals who died more than 100 years ago may have many descendants from more than one community, so genealogical descent alone may not be the only criteria considered.
In such cases, the museum will need to assess the range of potential claimants and gauge how the interests of these individuals might be balanced with any other relevant considerations. The ethical principles will help to guide museums through these cases. The principles of avoiding harm (to the particular individuals concerned) and solidarity (seeking co-operation and consensus) are likely to be particularly important here.
Cultural community of origin: The concept of a community can be a difficult one to define. The assumption is that human society is characterised by the creation of communities that individuals feel a part of and which take on a collective set of values, often identified by particular cultural behaviour. It is often far less easy to identify which particular cultural community, or part of a community, has the greatest authority in any particular instance.
When considering claims based on cultural links, museums will need to take care to verify that the group they are dealing with is the only potential claimant, or that, if it is not, the other potential claimants support them. For overseas claims, where there may be doubt on this, advice should generally be sought from the national government concerned. It might also be normal to look for precedents for how a community has acted in the past.
For a community to be recognised and their claim considered it would generally be expected that continuity of belief, customs or language could be demonstrated between the claimants and the community from which the remains originate. Cultures evolve and change through time but these changes can normally be recorded and demonstrated. The relationship between the location of the claimant community and the origin of the remains might also be a consideration.
It would be unusual to accept a claim for return from a group who did not either occupy the land from which the remains came, practice the same religious beliefs, share the same culture or language, or could not demonstrate why this was no longer the case.
A museum will need to be assured that a sufficient link does exist and that the group they are dealing with has sufficient authority to make a community claim.
A clear demonstration of a continuity of association between the claimant and the remains will be of great importance in dealing with any claim.
The country of origin: In some cases a nation may make a claim for remains, either on behalf of a particular community or for all of its nationals. Such a claim would be considered along similar lines to claims based on cultural community.
B. The cultural, spiritual and religious significance of the remains
Where claims are made it would be expected, but not essential, for the claimant group to show that human remains and their treatment have a cultural, religious or spiritual significance to their community. The claim may be being made purely on cultural, spiritual or religious grounds. The claimant group may show that remains were removed without the permission of their community, or at least outside its laws and normal practices. Further the claimant may show that the correct "laying to rest" of remains is of religious or spiritual importance.
The remains might also be of a particular cultural significance to a community, for example as being from an important family or representing war dead, or victims of a particular event, such as a massacre.
Demonstration through some or all of the ways above, of strong continuous cultural, spiritual or religious significance of particular human remains, will add weight to a claim. This is particularly so in cases where there is clearly a risk of harm to the individuals or communities concerned, for example, where the continued holding of the remains by a museum perpetuates a strong feeling of grief among claimants.
C. The age of remains
The vast majority of claims that have been made for return have concerned the remains of overseas people who died within the last 100–300 years. This corresponds most closely to the period when expansion took place by European powers, with its subsequent effect on Indigenous peoples – a period that does not go back further than 500 years. It is also the period in which it is more likely for a close genealogical link to be made between the living and the dead.
Archaeological and historical study has shown that it is very difficult to demonstrate clear genealogical, cultural or ethnic continuity far into the past, although there are exceptions to this. For these reasons it is considered that claims are unlikely to be successful for any remains over 300 years old, and are unlikely to be considered for remains over 500 years old, except where a very close and continuous geographical, religious, spiritual and cultural link can be demonstrated. Some cultures put more emphasis on association with land that has a cultural, spiritual or religious importance and less on relative age. In such cases, the chronological age of the remains may be less significant.
D. How the remains were originally removed and acquired
There are many cases of human remains being removed and studied without dispute. There are other instances, particularly during the 19th and early 20th century, of remains being removed against the will of individuals, families and communities.
E. The status of the remains within the museum/legal status of institution
The museum should be sure of the exact legal status of the remains within their collections and that they have the right to make decisions over their fate.
The museum should identify the remains being claimed and then ascertain why they are being held and how they have been, and are likely to be, used:
1. Are the remains fully documented and the information about them publicly available?
2. Do they have continued, reasonably foreseeable, research potential?
3. Do they form part of a documented access strategy?
4. Are they curated according to the very highest standards?
5. Are they curated in such a way as their long-term preservation is assured?
6. Can the long-term security of the remains be guaranteed within the museum?
F. The scientific, educational and historical value of the remains to the museum and the public
Many human remains have undoubted potential to further the knowledge and understanding of humanity through research, study and display. In considering a request for return of human remains, a museum should carefully assess their value and reasonably foreseeable potential for research, teaching and display and should ensure that specialists with appropriate knowledge and experience have assessed this.
If the remains do have value for research, teaching and display, a museum should decide whether this can override other factors, particularly such as the wishes and feelings of genealogical descendants or cultural communities.
G. How the remains have been used in the past
In considering the future of remains, consideration may be given to what use they had been put in the past. Evidence of extensive previous research use would normally support an argument for scientific value.
H. The future of the remains if returned
The care of remains, if returned, also requires consideration. Some requests might require re-burial or removal from the public arena, whereas some claimants may be prepared to keep the remains in such a way that future research, teaching or even display is possible.
I. Records of the remains
Whether a record of the remains exists, or can be made before return, might be a factor in making a decision.
J. Other options
There may be more than two options when a claim is made. Museums should explore further alternatives if this helps in reaching a consensus. For example, it may be possible that remains would stay in the museum, but a claimant group would gain a level of control over their future use.
K. Policy of the country of origin
Some nation states have developed domestic legislation or policy to govern claims for the return of remains. Museums would normally expect to be aware of any policies of the national government from which a claim originated. It is worth considering how a claim would be resolved if made in the country from which the claimants originate, as well as the expectations of the claimant based on the practice in their country of origin.
Claims will generally be dealt with on a case-by-case basis. However, it would be expected that a museum would review past cases of claims made to it, or claims of a similar kind made to other museums and their outcomes, as well as giving some thought to the impact of any decision on future claims.