On Friday, 70 Hopi katsinam were auctioned by the Neret-Minet auction house in Paris despite strident protests from the Hopi people and museum officials based in the U.S. An indigenous-rights group called Survival International obtained a hearing in a French court to try to block or delay the auction, but the judge ruled that the sale could continue.
To the Hopi, the katsinam are sacred objects that cannot be owned, bought or sold. This concept, in addition to a global history of looting and theft of indigenous peoples' possessions by colonizers and invaders, casts serious doubt on the Paris auction: Did the seller have the right to even possess these items in the first place? Unfortunately for the Hopi, that's an irrelevant issue because there is no mechanism for doing anyting about items stolen from American Indians that have ended up around the world.
Put simply, if an American collector is discovered to be in possession of a painting stolen by Nazis in Poland 70 years ago, there are international agreements in place, such as the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects, to return the painting to its original owners. But if a French collector owns Native American artworks or artifacts that were improperly acquired, there are no such agreements that they must be returned to Native Americans.
Christopher Marinello isn't so dismissive. He is the Executive Director and General Counsel at Art Loss Register London, which is the world’s largest private database of lost and stolen art, antiques and collectables. He offered his thoughts on the auction in a recent discussion with ICTMN.
What is your opinion on the Paris auction of Hopi art, and how do you see the issue, as a lawyer specializing in Nazi looted art?
Well, there are no international conventions addressing Native American artifacts, yet it is something that the Americans should be convening, and discussing. Because the laws in the USA protecting those native artifacts have no weight overseas.
Regarding the Nazi looted assets, there have been conventions signed by over 45 countries. But that has not been done for the Native American artifacts.
But to me, the cases should not be handled in a different way; the auction house should pull off the items from the sale, the two parties should meet to discuss the provenance of the objects, where they were purchased, look at the documentation of purchase, to check if those objects are genuine, or if there are some reproductions, or fakes, etc.
How does one determine to legally repatriate Nazi artwork, and what are the factors that would differentiate the Nazi looted art from the Native art repatriation?
The international conventions require countries to address Nazi looted artifact, but there is nothing like that in France for Native claims, or any laws like the convention of Washington 1998, concerning Nazi looted art, which has been signed by many countries.
So those auction houses will hide behind the fact that the consigners have items in good faith. Which is not morally right.
And we do not support that: the two parties should discuss the provenance of the objects, to determine if they should go on public sale, together with the members of the tribe who are claiming the pieces.
It was foolish to go on with the sale, given the media attention; the problem is not solved, as the next owner may have to face the same issues. So pulling them from the sale would have been the wisest move.
What are the rules of thumb for these kinds of situations?
The traditional methods, with Nazi looted assets, are to request the auction to retire from the sale, and the parties to meet, like the Norwegian case we are dealing with right now. It requires sitting down with the lawyers, looking at the documentation, and consulting the laws of the countries.
In the Hopi case, there are moral claims to those items — and that would be the rule of thumb. Discussing the moral issues, and weighing them against the legal issues.
What is your opinion on the notion of “stolen art”: the auctioneer mentioned that you couldn’t compare this case with Nazi looted art, because the Hopis themselves would sell their own items?
If it was the case that the tribal members sold — did they have to right to sell? As no tribal member can own items with a religious significance. They belong to the entire tribe. That applies to a priest selling an artwork, he might not have the authority.
France is part of the 1970 UNESCO convention, so the pieces should have been pulled off, parties should have had a discussions to see which pieces could be sold, which were not genuine, what were the moral claims, what was important to the tribe, what is the compensation. And if the consigner has acquired them in good faith, a lot of issues have to be debated between the two parties. And the best people to determine if the items are authentic are the tribal members themselves. They are the ones to decide what can be sold. That could be the beginning of the resolution.
How do you determine what objects have to be returned?
You need to first determine the basis of the claim. Claiming the Mona Lisa does not mean you own it.
The auction house has argued that some of the masks are not sacred.
The first thing to discuss with the tribe is their claim: Which pieces have a religious significance, and which could be sold? This the frame works of the restitution. And that has to be determined with the tribe.
So there are no predetermined criteria of repatriation, like in Nazi cases?
We determine the basis for the original owner's claim — some are victims of Nazi looting, some sold legitimately, some were forced to sell. The first step is to analyze where the particular claim falls.
How do you see the evolution of Native American art sale in Europe?
It will take a case that spurs lobbying for more regulations. And this may be the one that could help Native American tribes, by making stronger laws in the US and treaties to be signed overseas.