Opinion: Hopi and Navajo Masks Auction Precedent in France Is Dangerous

Member of the Hopi tribe Bo Lomahquahu standing outside of Drouot in protest of the auction of Native American Hopi masks on April 12, 2013. Photo: © Michel Euler/ /AP/Corbis.

Member of the Hopi tribe Bo Lomahquahu standing outside of Drouot in protest of the auction of Native American Hopi masks on April 12, 2013.
Photo: © Michel Euler/ /AP/Corbis.

The Holocaust Art Restitution Project (“HARP"), based in Washington, DC,¹ chaired by Ori Z. Soltes, recently denounced a “shameful" and “tragic" decision by the French “Conseil des Ventes" (Auction Houses Supervisory Board, hereinafter “Board"), an administrative agency in charge of regulating and supervising auction sales on the French market, which refused to suspend an auction sale of sacred masks owned by the Hopi and Navajo tribes.² The Board held that the Hopi tribe, in fact any indigenous peoples, have no legal capacity or standing to pursue any cultural claim in France, setting the stage for the Paris market to become a safe haven for any indigenous cultural property.

On June 22, 2014, HARP initiated a judicial proceeding in France by requesting from the Board an administrative suspension of an auction sale scheduled for Friday, June 27, 2014, which involved sacred objects of both the Hopi and the Navajo tribes.  Following a special hearing held in Paris on June 25, 2014, the Board, an arm of the French Government, held that the Hopi tribe, in fact any Native American tribe, has no legal existence under French law, and therefore lacks the capacity or standing to pursue any cultural claim in France.³

This dismissive denial of access to justice flies in the face of the progress made in international law by all tribes and indigenous peoples, as the French government had expressed its support for the legal status of indigenous peoples by endorsing the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) at the U.N. General Assembly. Furthermore, adding insult to injury, the Board refused to consider the provenance information for these objects, although the Board was presented with sufficient evidence that title for these sacred masks could have never vested with subsequent possessors.4

The Board's decision is disheartening from two perspectives. First, the Board denied the Hopi tribe's ability to bring a cultural claim by holding that it failed to establish a legal existence and capacity to sue. This decision has extreme ramifications, since it means that neither the Hopi tribe nor any Native American tribe has any legal existence under French law. The Board held that the Hopi tribe's 1936 Constitution was “insufficient to establish the tribe as a legal entity under French law."5 If the Board holds that the Hopi Constitution is lacking in establishing its legal existence, then no Native American tribe will be able to bring cultural claims on French soil. This decision should shock everyone's conscience. The Hopi tribe has been federally recognized by the US government pursuant to the Indian Reorganization Act of 1934.6 Recognized tribes have the legal authority to act pursuant to conditions established by the Congress. Within the US, Native American tribes have standing specifically for cultural repatriation claims under NAGPRA.  Considering that US courts define a foreign citizen's standing by whether his home nation would define his legal capacity, it is shocking that France does not grant legal entities under US law the same courtesy.

Second, Article 1-5-1 of the Board's Code of Ethics for Auction Houses7 stipulates that auction operators must carry out appropriate due diligence regarding the provenance of objects being sold and the consignor's right to sell the object. If the object is suspected of being smuggled or stolen cultural property, the code mandates researching international databases and contacting organizations dealing with illicit trade in cultural property. Further, if the object's provenance is suspicious, the object should not be sold and authorities should be notified. Therefore, Article 1-5-1 requires due diligence in researching the provenance of objects for sale and halting the sale if the object's provenance is suspicious.

However, in its decision, the Board refused to apply Article 1-5-1, even when faced with claims that title to some of the Hopi objects included in the June 27, 2014 auction could not have vested with the current possessor. The Board held that the auction house acted in good faith, although the auction house made only cursory requests to its consignor, and refused to force the auction house to perform any further due diligence.8 Nevertheless, this is the third consecutive auction for which the Hopi tribe had raised concerns about the provenance of such objects. US statutes such as the Antiquities Act of 1906, the Archaeological Protection Act of 1979 and the Native American Graves Protection and Repatriation Act (“NAGPRA") of 1990 demonstrate over a century's worth of efforts to stem the illicit traffic in Native American cultural objects. In this context, it is incomprehensible to see how cursory requests were sufficient to establish good faith.

In refusing to suspend the June 27, 2014 sale of Hopi objects, the Board ignored the legal recognition that the US gives to Native American tribes and refused to apply its own law governing provenance research of objects to be sold at auction.  This decision creates a tragic precedent and sets the stage for France to become a safe haven for any cultural property originating with indigenous peoples worldwide.

Pierre Ciric is a New York attorney, the founder of the Ciric Law Firm, PLLC, and a board member of both the French–American Bar Association and the New York Law School Alumni Association. The Ciric Law Firm, PLLC represents the Holocaust Art Restitution Project (“HARP") and its director and co-founder, Ori Z. Soltes.

[1] HARP is a not-for-profit organization that conducts research into and disseminates information to the public and to claimants about cultural property which was plundered, stolen, confiscated, or otherwise unlawfully taken from individuals, families, social groups or institutions during times of war, genocide, crimes against humanity or other armed conflicts. Professor Ori Z. Soltes teaches at Georgetown University across a range of disciplines, from theology and art history to philosophy and political history. He is the former Director of the B'nai B'rith Klutznick National Jewish Museum in Washington, DC, where he curated exhibitions on a variety of subjects such as archaeology, ethnography, and contemporary art.  Professor Soltes has taught, lectured, and curated exhibitions across the US and internationally. Professor Soltes was also involved in providing the historical research and background information in regard to Egon Schiele's Portrait of Wally (1912) case, as well as the restitution of an Odalisque painting by Henri Matisse to the Rosenberg family. For the remaining footnotes in this article, please contact the author directly.