Paris Based Néret-Minet Auction House Blasted by Worldwide Media for Hopi Sale

PARIS: April 12, 2013 - The Néret-Minet auction house in Paris has auctioned a number of Hopi objects, many of which are thought to be more than 100 years old, and many of which are considered sacred by the Hopi. Leigh J. Kuwanwisiwma, director of the Hopi Cultural Preservation Office in Kykotsmovi, Arizona says of the objects: "Sacred items like this should not have a commercial value. . . . The bottom line is we believe they were taken illegally.”

The auction house claims that the objects were purchased as early as the 1930's, and that all the objects were sold as long ago as the 1960's. The media loved this story and the coverage literally was picked up by news outlets worldwide. Unfortunately all the stories had one view and that was from the perspective of the Hopi. The article below from the New York Times even solicited support and suggested a strategy for stopping the sale. This is not exactly what was taught in reporter school in the past. The first article is before the sale.. the second is after the sale. My comments follow.
Before the sale: "Historians say many Hopi artifacts were taken long ago by people who found them unattended in shrines and on altars along the mesas of the Southwest. Others were confiscated by missionaries who came to convert the tribe in the late 19th century. Some were sold by tribe members. But even those sales were not legitimate, Hopi leaders say, because they may have been made under duress, and because the tribe holds that an individual cannot hold title to its religious artifacts — they are owned communally.
This of course is why many of these objects were acquired in the last century. The Hopi have a fundamentally different view of property and sacred objects. They have a communal relationship to these objects. When that view of objects is linked with western legal systems, the results can be messy. But I think there are a number of legal challenges that can be made to the auction of these objects.
 Possible action could include an action for the recovery of stolen property. The Hopi would have to establish that they have a relationship to these objects that is sufficient to allow a French court to deny the sale. Or the United States government could intervene and protest the sale on the grounds some of the objects were removed from Federal or tribal lands and are considered stolen under the Archaeological Resources Protection Act. But the difficulty with both of those legal options is the problem of proof.
 The best chance for a quick resolution to the sale may be to generate enough headaches for the auction house, the consignor, and any potential buyers. The New York Times piece will help raise the profile for the auction, but it will also require some vocal and I'm sorry to say expensive, actions on the part of the Hopi or their advocates.
 In a case like this, it is true that seldom have we seen works of art from the United States exported and sold in a way which upsets the creator culture. If the market for Native American art continues to be this robust, it may take more concerted action on the part of the Federal government to intervene. I don't think this is an issue of uneven application of international cultural heritage law, much of which is soft. The reporting and some reaction seems to suggest the U.S. does a better job of helping foreign nations in their efforts to repatriate. I don't get the sense that that is right. Rather I'm not sure we have a good robust set of tools to seek repatriation from abroad when it is warranted. And there are a number of reasons for that. For one, I don't think Native American tribes have been confronted with this problem very often either because it didn't happen or they weren't aware. But also we don't have a good organized cultural apparatus in the United States. We rely on lots of very capable Museums and other organizations. But in the case of international repatriation. It really helps to have an active and organized set of voices acting in concert. We just don't have that in the United States. So there are challenges for the Hopi here, but other similar groups have shown that patient and persistent appeal to reason can impact the disposition of these objects."Tom Mashberg, New York Times

After the sale: "A contested auction of sacred Hopi Indian artifacts went forward on Friday in Paris  and generated more than $1 million in sales, despite the presence of protesters inside and outside the auction house who urged patrons not to take part. The featured item, a headdress known as the Crow Mother, drew intense interest. Bidding on this 1880s artifact, which had a high estimate of $80,000, soared to $210,000, drawing applause from a crowd of some 200 people in the sales room and protest from a woman who stood up and shouted: “Don’t purchase that. It is a sacred being.” Earlier, a woman who stood and began to cry out against the sale had been escorted rapidly from the room, which had tight security. The sale of American Indian artifacts generated $1.2 million, including the buyer’s premium (the auction house’s fee), according to a spokeswoman for the seller, Néret-Minet Tessier & Sarrou. That is roughly what the house had estimated the sale would bring before the Hopi tribe lodged its complaints and the auction became the object of international scrutiny and diplomatic talks between the United States and French officials. Five of the 70 items did not sell, and many pieces sold below the low estimate, but whatever hesitancy buyers showed toward some items was offset by the enthusiasm shown toward the featured piece. A few hours before the sale, a Paris municipal court judge had ruled that it could go forward, finding that the masklike objects, despite their divine status among the Hopis, could not be likened to dead or alive beings. A lawyer for the Hopis had argued that the tribe believes that the works embody living spirits, making it immoral to sell them under French law. The Hopis say the artifacts, known as Katsinam, or “friends,” were stolen from tribal lands in Arizona. Many are more than a century old. The auction house has said that a French collector obtained them legally decades ago. In a statement, the Hopi tribal chairman, LeRoy N. Shingoitewa, said: “Given the importance of these ceremonial objects to Hopi religion, you can understand why Hopis regard this — or any sale — as sacrilege, and why we regard an auction not as homage but as a desecration to our religion.”
 Before starting, the auctioneer, Gilles Néret-Minet, told the crowd that the sale had been found by a judge to be perfectly legal, and that the objects were no longer sacred but had become “important works of art.” He added, “In France you cannot just up and seize the property of a person that is lawfully his.”
 Bo Lomahquahu, a Hopi tribe member and university exchange student who stood outside the auction, said the atmosphere inside was “very surreal and heartbreaking.”
 “They are truly sacred to us; we feed and care for them,” he said in a cellphone interview. “And to see people walking out with them in bags, like some object, I felt really helpless and hurt.”
 The United States ambassador to France, Charles H. Rivkin, said through a spokesman, “I am saddened to learn that Hopi sacred cultural objects are being put up for auction today in Paris.”
 The auction house said that one of the artifacts was purchased for $4,900 by a foundation that intends to return it to the tribe.

 But Pierre Servan-Schreiber, a lawyer from Skadden, Arps, Slate, Meagher & Flom who represented the tribe pro bono in the court case, said that the outcome was “very disappointing, since the masks will now be dispersed” and that the Hopis will most likely never see them again." New York Times
Not one reporter wanted to talk about what has happened in the past on the Hopi Reservation. First let's define  the controversy. Hopi masks are either individually owned or communally owned as the property of a clan or a group of Hopis. Clan pieces can never be sold and are always considered to be stolen if they are found off the reservation. The individually owned masks are a bit trickier. There are certainly a significant number of Hopi who believe that even these individually owned masks are integral ceremonial objects functioning within the Kachina cult and are in essence spiritually owned by all Hopis. To my knowledge there is no law on Hopiu forbidding the sale of an individually owned mask. I have no knowledge of any Hopi ever being punished for the sale of an individually owned mask.

"Every Hopi is involved in ceremonial life, the men with the Men’s Societies and the women with the Women’s Societies. A man usually belongs to one society and one kiva only. He does not try to learn about the kiva ceremonies of a society other than the one to which he belongs. In this way we keep a balance of the religious facets of the Hopi way of life. In this way we preserve the sacredness of the societies, the kivas, and the rituals." HOPI NATION: Essays on Indigenous Art, Culture, History, and Law University of Nebraska - Lincoln Year 2008 p.73

The problem comes within the Hopi leadership. There is not one monolithic force that dictates what
all Hopi will do. Some Hopi have become disenchanted with the old ways.. some have converted to Christianity. And as I stated above I have never heard of a Hopi being punished for selling his individually owned kachina mask. The question then becomes who would stop a Hopi from selling his mask? If it is not illegal on the Hopi Reservation then how could it be illegal off the Hopi Reservation? If you are recalling some of the problems with the National Stolen Property Act, you are right. At a minimum you have to establish the rightful owner's loss before you can proceed under our legal system. This, of course, begs the question: So that they might have the credibility of having at least proof that a theft occurred, why haven't the Hopi established their property rights in our legal system? Is it credible to believe that I am the first to figure this out? All property owners have rights and that includes even collectors who buy Hopi masks that are personally owned by the seller. In the absence of facts to the contrary it sounds to me that from a legal point of view the French judge got it right.

"Other modern institutions are operating in our communities right now. The Hopi Tribal Council is a large organization which is working with new ideas and gaining power. Not all villages nor all people recognize the Tribal Council, but all Hopi have to be involved with it. There is a need to know whether you agree or disagree with the Council, whether you are a friend or enemy to Council policies and actions. Community centers are now being built and programs developed in all Hopi villages; these centers are a political arm of the Tribal Council. Traditionally, the people would gather in kivas to listen to the elders and to make tribal judgments. But now we have our community centers where policies are being determined." HOPI NATION: Essays on Indigenous Art, Culture, History, and Law University of Nebraska - Lincoln Year 2008 p.51.

In a 1990 article for the Seattle Times Mark McDonald offered this: Most clan pieces are either kept in "kivas,'' the subterranean ceremonial chambers of the Hopi, or hidden deep inside clan houses in the villages. All of these are virtually impenetrable by non-Hopis."Dealers aren't going into the villages and stealing this stuff,'' said Jordan Davis, co-owner of the Morningstar Gallery in Santa Fe, N.M."The Hopis themselves are stealing it - 9 1/2 times out of 10 it's the Indians.'' Hopi tribal officials admit privately that alcoholic, drug-addicted or impoverished Hopis are the likely culprits in the thefts of profound pieces from private places. "Unfortunately, Hopis are sometimes involved,'' said Jenkins, the cultural preservation director. "As a Hopi in my right mind, though, I wouldn't even take my `friend' outside the village.'' Although ownership is a slippery concept among the Hopi, it is widely accepted that no one person can "own'' clan or society pieces, which are entrusted to an elder but are still communally held. Thus, if such a piece appears off the reservation, it has unquestionably been stolen. The real dispute about ownership comes with ceremonial pieces that are important - but not absolutely crucial - to the religion. Many dealers and collectors - and some of the Indians less taken with the traditional ways - believe these artifacts can be individually owned.
"The younger (Hopi) people are thinking more in the present day,'' said Joshua Baer, a well-known Santa Fe dealer. "They want to make some money off pieces they've inherited or bought from another Hopi.'' Tradition-minded Native Americans, however, maintain that anything old or even vaguely ceremonial - a Hopi rattle, a Navajo weaving, an 18th-century Acoma pot - is part of their endangered tribal patrimony and should remain on the reservation. This hard-line approach has created an angry backlash against some Indian claims. Gone are the days when a Hopi, for example, could successfully walk into a gallery or a museum, point at something and say, "That belonged to my great-grandfather, and I want it back.'' "The dirty little secret of all this is that the Hopis want it both ways,'' said Baer. "They want to sell things, and they want to get them back.'' Copyright (c) 1990 Seattle Times Company, All Rights Reserved. Mark McDonald Seattle Times 1990 -

My point here is to suggest that the story is far more complicated than almost any media outlet  has suggested - including our highly regarded New York Times which pretty clearly has an agenda and wants to sell you on their ideas. Hopis do sell their individually owned masks which the French owner undoubtedly acquired in good faith and with no malice. Many Hopi have a far different view on their personal right to own and sell objects than the point of view expressed in all these media reports. As noted above some Hopi do steal from other Hopis and sell objects to collectors and dealers. The idea that you have non Hopis creeping around the reservation and entering kivas and stealing ceremonial material is silly. If it comes off the reservation, it comes off because a Hopi wanted it to come off. In my judgment there are some masks in this sale that could have been proven to be clan masks, which might have given the Hopi are far different outcome. In my judgment the Hopi and their surrogates screwed up by going for the whole collection instead of making a very important point and repatriating some objects that are critical to their ceremonies. The media wanted a good story to sell their papers or subscriptions and they used the Hopi to achieve their goals. It would have been refreshing to have at least one reporter other than Mr. McDonald back in 1990 to provide us with facts and not hysteria. It seems we all are becoming so strident every time we open our mouths to say anything that all we can hope to achieve is to continue to convince ourselves.