April 09, 2013

Auction house vs. Hopi on masks

Hopi Katsinam Auction in Paris: A Conversation with the Auctioneer

By Dominique GodrecheOn Friday, April 12, the Parisian auction house Néret-Minet Tessier & Sarrou plans to sell 70 Hopi katsinam, commonly referred to as masks, to the highest bidder. This sizable auction of objects considered sacred by the Hopi has created quite an international furor, with Hopi and other Natives, as well as museum curators, calling on the auction house to cancel the auction and return the pieces to the Hopi.

Auctioneer Gilles Néret-Minet has found himself at the center of the controversy. He has received a stream of angry correspondence, and even threats. He spoke with an ICTMN reporter on the condition that his words not be changed. We have attempted to keep the responses below as close as possible to Néret-Minet’s original French answers.

Does all this buzz about the sale change your plans?

No--because France is a country of rights! All the mail in the world will not change anything. I am answering through my lawyer; and either I get the auction, or I do not. But if not, it would be a reconsideration of the nature of private property in France, which would have a huge impact on this issue. These objects are not “protected” in France, or in Europe. Only in the United States; and particularly in those two states, Arizona and New Mexico, where the Hopi tribes live. Also, those masks are only sacred when used in a dance. They are not sacred afterward. They are put aside, or destroyed. So the Hopi want to claim these objects, and we don’t know where they will go--they might just disappear. This is unbelievable! If they can claim these objects now, then African art is over, and the Cluny museum [of medieval objects, in Paris] would give back all of its pieces to the churches. If we are questioning the principle of “religious art,” we should question the entire notion of art. I think this issue should be addressed to the Americans, and that is what the New York Times article says: There is no bi-national agreement of restitution. That’s it!
And:Then you maintain that the tribe’s position is not legitimate?

It is extremist! And legally, France is not a province of the United States! We cannot apply North American law in France. Moreover, before asking for the return of items from France, they should ask the American museums to return their pieces. The same with the American collectors. Because all those collections come from the United States, from the 19th century: they are not from the '70s. Many Native Americans sold their masks, and so did the missionaries who were converting them.

How do you feel about the comparison of these Hopi items with art looted by Nazis in World War II?

Oh yes, I did receive some letters like that, where I was treated in an extremist way. But it has nothing to do with this issue: Hopis used to sell their masks to the tourists! And now about a dozen Hopis are in jail for having sold masks. Like in Africa, all that comes down to business. If the Natives would deal with experts, they would have exhibitions in the great museums, and that would honor their culture.
Sounds sort of definitive, right? US law doesn't apply to France? Read on.

You Can’t Convey What You Don’t Have

By C. Timothy McKeownMonsieur Néret-Minet might be interested in knowing that a number of US Federal laws may also be implicated in the proposed sale. Taking the auction house representative’s statement that the items were “legally” bought in the US on its face, we can assume that none of the masks–many of which have been identified by the Hopi Tribe as objects of ongoing historical, traditional, or cultural importance central to the tribe and which could not be alienated, appropriated, or conveyed by any individual–were obtained after 1990 from tribal lands or from a museum receiving Federal funds. Section 4 of the Native American Graves Protection and Repatriation Act (NAGPRA) made the sale, purchase, use for profit, or transport for sale or profit of any such cultural items a criminal offense. To date, 13 individuals have been convicted of trafficking items similar to those being offered at the Paris auction. Most were fined and the cultural items confiscated and repatriated. Several were also imprisoned. The list of convicted criminals includes mostly tribal members, intermediaries, and dealers in the American Southwest. Missing are the collectors who fuel the market, though several have stepped forward, including one reportedly connected to the Hollywood community, to aid the law enforcement and avoid prosecution themselves.

Taking the auction house representative’s statement that the items were legally bought in the US on its face, we can also assume that none of the masks over 100 years old were sold, purchased, exchanged, transported, received, or offered for sale, purchase, or exchange in interstate or foreign commerce after 1979 in violation of any provision, rule, regulation, ordinance, or permit in effect under Federal, State, local, or tribal law. Section 6 of the Archaeological Resources Protection Act makes such transactions a criminal offense.

Finally, to accept the conclusion that the masks were legally acquired under US law, we must assume that none of the masks were originally purchased or received from an Indian in Indian Country between 1796 and 1953. Section 9 of the Act to Regulate Trade and Intercourse with the Indian Tribes and to Preserve Peace on the Frontiers (and its successors) made such transactions involving articles of clothing a criminal offense. A court explained in 1911 that “the whole purpose [of section 9] was to prevent the Indian from improvidently parting with his indispensable articles, either to the government or to anyone else.”
And:To summarize: 1) all of the masks are dated to the period prior to 1953, meaning that their original acquisition was not just reprehensible to the tribes involved, but a violation of the Federal restriction on acquisition of articles of clothing from Indians; 2) under US legal principles, no subsequent purchaser of the masks acquired good title since good title was not conveyed by the original thief; 3) under US law, the burden of proof rests with the non-Indian whenever the Indian makes out a presumption of title in himself; and 4) the most recent acquisition of the masks by Monsieur L.S. may have also violated specific criminal provisions of ARPA and NAGPRA.

The refusal to respond to the Hopi Tribe, delay the auction, and provide documentation regarding the provenance of the masks to the tribe and US authorities not only casts a cloud on Monsieur L.S.’s title to the masks he is trying to sell, but also raises suspicions regarding the honesty of Néret-Minet Tessier & Sarrou’s efforts to peddle such items.

And to potential buyers:

Caveat emptor.
The legal outcome

Friends of the Hopi filed a suit and a Paris judge ordered a hearing, as you can see below. That means the legal issues weren't so flimsy that the auction house could dismiss them with the wave of a hand.

Paris Judge Orders Hearing on Auction Sale of Hopi Artifacts

French auction firm faces court test over sale of Hopi tribal masks

Paris Judge Sets Hearing On Auction Of Hopi Items

Unfortunately, the judge ruled that the auction could proceed. I believe it was on narrow grounds: that there was no lawful reason to delay the auction.

One question left unanswered: Even if Seller A obtained the items legally from Seller B, how do we know Seller B obtained them legally? And so forth back to the original owners. If any transaction along the way was illegal, the seller's present ownership is arguably illegal.

Also left unanswered, at least from what I read, was whether the auction violated international law on trafficking in antiquities. I'd be amazed if there weren't several laws that applied to this situation.

In other words, I doubt it was solely a matter of US law not applying to the French or vice versa. International laws apply to everyone who has ratified them.

But I don't think the judge ruled on these issues. Or even acknowledged them. Alas.

For more on the subject, see French Plan to Auction Hopi Masks.

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