Hopi Restitution Suits: Questions of Standing and Rights

October 1, 2015

By Lindsay Voirin, Esq.

Center for Art Law previously reported that the Hopi Tribal Council partnered with the Holocaust Art Restitution Project (HARP) to file suit against France’s board of auctions for refusing to stop the sale of sacred Hopi objects, having concluding that Native American tribes lack legal standing to bring a cultural claim in France. The partnership was at once unexpected and tactically sound. In this article, we review the background for the case and the procedural history

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Source: Sacred Hopi and Acoma objects are displayed at the Drouot auction house in Paris prior to auction, June 10, 2015. REUTERS/JACKY NAEGELEN — Sacred objects as displayed at the Drouot auction house prior to June 2015 auction. Source: Reuters/Jacky Naegelen.

The controversy concerns Hopi artifacts that are religious objects necessary for the use and the continuation of the Hopi religion by present day adherent. Known as kwaa tsi, and sometimes described as “katsina friends,” these artifacts are offered for sale by French auction houses, despite protests and lawsuits filed by the Hopi Tribe to enjoin the sales.

The katsina friends go through a ceremonial process of deification whereby they embody spiritual life. They then become a “Katsina” and serve as a messenger to the spiritual domain for rain and life blessings. Katsina friends are used during katsina religious ceremonies.These artifacts are considered sacred objects and objects of cultural patrimony and cannot be transferred, sold, conveyed or removed from the tribal land without permission of the Hopi Tribe. However, recently they have been included in at least six auctions in France between 2013 and 2015.

Every time kwaa tsi are offered for sale, the Hopi Tribe objects vehemently, yet their pleas remain disregarded. Therefore, the Tribe representatives have turned to administrative and legal mechanisms to attempt to enjoin the sales since 2013. The Hopi Tribal Council has filed suits in French civil courts on various occasions preceding the sales, including in April 2013, December 2013, and June 2014. Unfortunately, these judicial attempts to enjoin the sales have been unsuccessful. Furthermore, administrative petitions to the “Conseil des Ventes” (“CVV”), a French regulatory body tasked with overseeing auctions in France, have also failed. In its decisions, the CVV repeatedly held that the Hopi Tribe did not have the legal capacity to sue in France.

Article 27, United Nations Declaration on the Rights of Indigenous People (2007).

Internationally, the 2007 United Nations Declaration on the Rights of Indigenous People (UNDRIP) sets forth rights of indigenous people such as the right to be free from discrimination in the exercise of their rights. The current French laws have not yet been interpreted to allow an indigenous tribe or individual leader of a group to have a legal existence or standing to bring a cultural claim in French court.

In order to succeed in stopping the sales in France, the Hopi claimants have to first prove that they have standing to bring a cultural claim in a French court. The strategy of partnering with an non-government organization (NGO) to effectuate legal standing is not a new strategy. The Hopis previously partnered with Survival International France, an NGO that helps tribal people defend their land and protect their livelihood. In that instance, the court acknowledged standing but dismissed the claim on the grounds that Survival International could not legally represent the Hopis to sue for repatriation of the masks.

In both the previous 2014 case and in the instant case brought by the Ciric Law Firm on behalf of the Hopis and HARP to enjoin the sales of the Hopi artifacts, the CVV dismissed the cases on the basis that the Hopis lack standing. In fact, the CVV held that no Native American group qualifies for legal standing to bring a cultural claim in France. Moreover, the Board refused to consider evidence that legal title could not have vested in subsequent possessors of the masks. Article 1-5-1 of the Board’s Code of Ethics for Auction Houses stipulates that auction operators have a duty to investigate the provenance of objects sold. When faced with requests to apply Article 1-5-1 and require that that the provenance of the objects be considered, the Board refused, finding that the auction house acted in good faith.

Future attempts to sell Hopi artifacts at French auction houses will likely be faced with similar suits and requests to enjoin the sales. It seems unlikely that the CVV or the French civil courts will change their position without a change in legislation. As for a legislative solution, the CVV has the power to set forth proposals for legislative and regulatory changes. Recently, a strong faction of advocates for repatriation of Hopi artifacts has begun to lobby government officials. The simple solution is for France to recognize and accept Article 27 of UNDRIP, which requires the State to establish and implement a process to adjudicate the rights of indigenous peoples pertaining to their land, territories and resources. Only upon legal recognition of the Hopis can the French Board and French civil court begin to adjudicate the Hopis claims requesting injunction of future sales and repatriation of sacred artifacts.

Select Sources:

Holocaust restitution group fights for Hopi tribe, The Art Newspaper (May 1, 2015) http://theartnewspaper.com/market/auctions/154609/.
Hopi sacred masks auctioned off in Paris despite tribe’s protests (June 11, 2015)
http://blogs.reuters.com/faithworld/2015/06/11/hopi-sacred-masks-auctioned-off-in-paris-despite-tribes-protests/.
Hopi Tribe, lawmakers urge US to stop sale of sacred items (May 27, 2015) http://www.tucsonnewsnow.com/story/29170200/sacred-hopi-artifacts-to-be-sold-in-french-auction.
Indigenous Peoples’ Cultural Property Claims: Repatriation and Beyond, Karolina Kuprecht, Springer International Publishing (2014), p. 134.
Opinion: Hopi and Navajo Masks Auction Precedent in France is Dangerous, Pierre Ciric (July 25, 2014) available at https://news.artnet.com/art-world/opinion-hopi-and-navajo-masks-auction-precedent-in-france-is-dangerous-66975.
Press Release, The CIric Law Firm (June 1, 2015) http://www.hopi-nsn.gov/wp-content/uploads/2015/06/6-1-2-15_Hopi-Chairman-and-Holocaust-Art-Restitution-Project-HARP-denounce-decision-by-French-Government.pdf.
United Nations Declaration on the Rights of Indigenous Peoples (March 2008), available at http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf.

*About the Author: Lindsay Voirin is a patent attorney and current student at NYU Wagner School of Public Service, where she is working toward a Master in Public Administration. Her career interests include intellectual property, technology, international development and human rights law.

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Any views or opinions made in the linked article are the authors alone. Readers are not meant to act or rely on the information in this article without attorney consultation.