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You Can’t Convey What You Don’t Have

C. Timothy McKeown
4/9/13

On Friday, April 12, Néret-Minet Tessier & Sarrou in Paris is scheduled to auction 70 Native American masks dating between 1880 and 1940. The auction catalogue describes each mask, provides a photograph, details the materials used in its construction, and identifies the tribe that used the mask in its religious ceremonies. There are one or more masks from Acoma, Jemez, Zuni and Navajo, but the majority are from Hopi. The proposed sale has unleashed a global discussion on the propriety of the trade in communally owned cultural items and the need for transparency in provenance documentation.

We know little about the collector for whose benefit the auction will be conducted, identified in the catalogue only by the initials “L.S.” and described as “a connoisseur with peerless taste” who lived and collected in the US for 30 years. The French press describes him as a Frenchman who worked in the American film industry and occasionally stayed with the tribe. Requests from the Hopi Tribe for information on the provenance of the collection have been ignored, and last Thursday the US Embassy in Paris reportedly weighed in with an email asking the auction house to respond to the Hopi request. In a statement to the press, an unnamed representative of the auction house claimed that the collector “legally bought the items in the United States at sales and auctions.” Auctioneer Gilles Néret-Minet has dismissed Hopi claims because “they rely on an article of the Hopi constitution which is not recognized in France because it is not a State."

Monsieur 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.”

“Right of possession” is a key concept in US property law, as American museums, auction houses, and collectors are well aware. NAGPRA defines the term to mean possession obtained with the voluntary consent of an individual or group that had authority of alienation. However, the importance of right of possession, particularly as it applies to commerce with Indian tribes and their members, predates NAGPRA by over 150 years. An 1834 Federal law that remains on the books today clarifies that in disputes over the right of property involving an Indian and a non-Indian, the burden of proof rests on the non-Indian whenever the Indian makes out a presumption of title in himself from the fact of previous possession or ownership.

Legal traditions differ from country to country on how stolen property is returned to victims. The American and English tradition is based on the Latin concept of nemo dat quod non habet—you can't convey what you don't have—in this case lawful title. If I purchased something off of ebay that later turned out to have been stolen, the item could be seized by the police and repatriated to the original owner and my only recourse would be to sue the person who sold it to me for restitution. Things are different in France where, under the market overt system a buyer from an established business with no knowledge of any dispute may get good title to stolen goods. Since 1990, the market in Native American “art” has shifted from New York to Paris, largely to avoid the restrictions of US laws. That trend, along with the controversy raised by this auction, make it difficult to imagine that Néret-Minet Tessier & Sarrou has no knowledge of any dispute.

The situation for Monsieur L.S. is more problematic. A self-described connoisseur with 30-years collecting experience in the US, he has be have been well aware of the issues involved. 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.

Acheteur méfiez-vous.

Let the buyer beware.

C. Timothy McKeown, Ph.D. is a legal anthropologist in Washington, DC. His legislative history of the Federal repatriation mandates, In the Smaller Scope of Conscience: The Struggle for National Repatriation Legislation, 1986-1990, was recently published by the University of Arizona Press.

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Anonymous's picture
Great article, Dr. McKeown. Well researched and well written. Keep up the good work.
Anonymous
Anonymous's picture
Bravo professor mckeown ! Is there no shame in France After sixty nine years the French government seeks right now to find the rightful owners from whom the Nazis ami their French collaborators stole works of art (after 69 years)in the possession of the French government Would it not be be appropriate to have this same government step in intervene in this shameful auction of deeply sacred Hopi objects and return them to this ancient people now as well ????!!! Rise up gook folk of France and demand justice for the Hopi People from your government DO NOT be by standards in 2013! Mark Talisman Washington DC
Anonymous
Anonymous's picture
Very interesting analysis.Any way,french or european collectors-like me-should not participate in the auction.It is now obviously morally wrong.No collector or museum can ignore this issue anymore.And please be sure that what M.Neret Minet says does not reflect what most french would think.
Anonymous
Anonymous's picture
Thank you Prof. Mc Keown! This is the first intelligent analysis of this ongoing drama that I've read in any publication, including the NY Times. What should happen and what will happen may depend upon the French court's ruling. Just in the past 10-15 years we( collectors and dealers alike) have become aware of the legal and moral implications of possessing certain examples of Native American material culture. Many of us have bought, traded and given away artifacts that we believed to have been legally purchased....at shows, public auctions, or flea markets. Now times have changed, and we have to deal with a new reality....perhaps all of this material in museums, or in private collections has to be returned. Or not? NAGPRA has opened up the door for all tribes to claim anything as "religious, or ceremonial, or necessary for the tribe to have, etc, etc. The many museums in the US have borne the brunt of this and regularly are asked, and agree to return just about anything they are requested to, to any legitimate tribal representative....they don't want the negative publicity or legal expense in fighting it out in the courts. Can private collectors be next....and then what? We'll see.
Anonymous
Anonymous's picture
Very interesting. If the Tribe would bid and win them at the auction house to repatriate, will it be illegal to ship them to US (oversea) and to possess them at their homeland?
Anonymous
Anonymous's picture
As a member of the Hopi Tribe I want to say Uskwali-Thank you to you for putting out the information on these items that mean so much to our people. We still do all our ceremonial dances and it is a shame that Monsieur L.S. does not acknowledge that he did nothing wrong. To him it may mean money but to the Hopi People this is our livlihood, our culture that he is messing with. Please Monsieur L.S and Néret-Minet Tessier & Sarrou do the right thing and return our scared items back to our homeland to where they are needed and missed.
Anonymous
Anonymous's picture
Did you know the Smithsonian " gave " a Hopi mask to the Musee du Quai Branly. What " right of possession " did they have. The also gave many other Hopi artifacts to this museum. How were they aquirred ? Seems like someone needs to do their homework!!!
Anonymous
Anonymous's picture
I am glad Dr. McKeown has done this sort of work. While Mon. L.S. may have deliberately "not known" the laws, he was in Hollywood circles where the general idea of cultural affiliation is well known from Lou Diamond Phillips to Will Studi to Russell Means, Native Americans have been a vocal presence on behalf of their cultural and legal rights for decades in Hollywood. Mon. L.S. and the French auctioneers are abusing international law for a buck-black market millions flow through the exhibition world of France and in those circles, collectors are in deliberate violation of international laws regarding antiquities. True Hopi do not "own" nature or its cosmic portals such as masks. European property laws stemming from John Locke and his convenient economics of profiting from the earth have made slaves of the earth, its resources and its spokepeople . Emancipate the masks for their true and necessary intentions in their homeland or be a slave owner, Monsieur.
Anonymous
Anonymous's picture
PEOPLE WITHOUT SCRUPLES MAKE ME SICK!!! BUYING STOLEN ART IS A CRIME AND EVERY ONE KNOWS THAT. IT'S ABOUT TIME SOMETHIG IS DONE TO STOP INTERNATIONAL ART COMMERCE BASED ON LIES, THEFT AND SMUGGLING. WE MUST RESPECT PEOPLES CULTURE NO MATTER WHERE THEY COME FROM. MAY THE BIG SPIRIT SHED BLESSINGS UPON ALL OF US.
Anonymous
Anonymous's picture
Ron McCoy,American Indian Art ,Legal Briefs column,Spring of 2013,"presentism" thoughts.Wrap your minds around that if you may.Thanks....
Anonymous