The scheduled sale of 70 ceremonial Native American masks became the focus of world attention last month as the Hopi Tribe in the southwestern United States tried to delay the auction of masks they believed might have been illegally obtained by a French citizen who visited the Hopi Reservation in the 1930s-40s.
In April, Gilles Néret-Minet, an art and antiquities auction house in Paris, France, provoked an international dispute over sacred cultural artifacts and the ethical standards and ownership rights of museums and private collectors
Although most of the masks were Hopi, some were attributed to the Acoma, Jemez, Zuni and Navajo tribes. One of the points argued by Servan-Schreiber, legal counsel representing the Hopi Tribe through the backing of Survival International, a global nonprofit that advocates on behalf of indigenous tribes, was that according to an “old prohibition in French law,” it is illegal to sell “non-commercial” items whose sale is considered “immoral.”
Under traditional Hopi beliefs, the masks, dating back to the late 19th century, embody spiritual beings – they are alive. Servan- Schreiber argued the sale would be a sacrilege, and that the French law prevents sale of “emotionally charged” objects that have been in a family so long they have become communal, multi-generational property.
According to the Hopi Tutuveni newspaper, Leigh Kuwanwisiwma, director of the Hopi Tribe’s Cultural Preservation Division, said that because they were also “sacred objects belong[ing] to the entire Hopi Tribe, they have cultural patrimony, meaning there is a tribal and cultural right. They have never belonged to a single person. Because these objects do not belong to a single person, they have no monetary value and cannot be sold. The mere fact that a price tag has been placed upon such culturally significant and religious items is beyond offensive. They do not have a market value.”
Servan-Schreiber sought to delay the sale until it could be determined whether the masks were stolen from the Hopi people in Arizona, or if the possession of the objects violated American and international law.
But lawyers for the auction house countered that the Hopi claim to exclusive cultural patrimony has no legal basis in French law. They said a decision to block the sale would have broad repercussions in art markets while possibly forcing French museums to repatriate their collections of indigenous works.
French and American diplomats met prior to the courtroom battle. Charles Rivkin, American ambassador to France, released a statement after the meetings saying he was very concerned about the sale and questioned whether it was precluded by the 1970 United Nations Scientific and Cultural Organization convention on cultural property, to which both France and the United States are parties.
Despite the pleas for delay and investigation, and growing public protests inside and outside the courtroom and auction house, the court ultimately allowed the auction to proceed.
The judge ruled that despite their sacred status among the Hopis, the works could not be equated to dead or alive beings. In an indirect reference to the U.S. 1978 American Indian Religious Freedom Act, the court added that “no provision banning the sale outside the United States of objects used in religious ceremonies, or susceptible to be, is applicable in France.”
Two hours following the ruling, the sale was held and in the end brought $1.2 million to the coffers of the private seller while dispersing the masks into private hands throughout the world.
Servan-Schreiber said on CBS news after the decision, “The court decided to let the sale proceed because those masks, as sacred as they may be to the Hopis, are not bodies, human bodies, or body parts, alive or dead, and, of course the courts say that that is the only thing that could have been protected, with which I disagree.”
Shades of the past
The Four Corners region is replete with the artifacts and remnants of ancient civilizations, many of which are certainly not in the hands of the Native peoples who have the closest ties to them.
In an interview with the Free Press, Marietta Eaton, director of the Anasazi Heritage Center and manager of Canyons of the Ancients National Monument, said that the sale in Paris “harkens back to the history of this region when the Wetherills went with Nordenskjold and together did all that collecting.”
In 1888 Southwest Colorado ranchers Richard Wetherill and Charles Mason discovered Cliff Palace, located in Mesa Verde. Swedish explorer Gustav Nordenskjold joined with Wetherill in 1891, exploring and excavating Cliff Palace and other ruins, digs that produced a large stockpile of cultural objects he then took back to Stockholm, Sweden.
Nordenskjold’s expedition and the loss of an extensive and valuable collection generated both admiration and deep resentment among American archaeologists and provided strong arguments in Congress for protective legislation. The debate resulted in the 1906 Antiquities Act, which was signed into law by President Theodore Roosevelt.
According to Eaton, the discourse brought to light just how much the general public was developing an interest in the artifacts. “Suddenly people wanted to see them,” she said. People were moving from antiquarianism [the fervor for collecting antiquity] that grew out of the Egyptian discoveries, to valuing the items found in the Southwest.
“Of course those were Anglo values then, and now we’ve come around to realizing that these items are still important to contemporary Native Americans today and, clearly, that the laws and regulations are not the same in France as they are here.”
One such law is the Native American Graves Protection and Repatriation Act, referred to as NAGPRA. Its regulations apply to all United States museums and federal agencies.
The act provides a process through which Indian tribes may claim culturally affiliated human remains, funerary objects, sacred objects and objects of cultural patrimony – the language that was the key element of the Hopis’ complaint in Paris.
Cultural patrimony applies to objects having ongoing historical, traditional or cultural importance central to the Native American group or culture itself, rather than property owned by an individual Native American. Such objects cannot be alienated, appropriated, or conveyed by any individual.
The process for enforcing NAGPRA is standardized throughout museum associations and tribes in the U.S.
“If we suspect an object could be considered sacred by a tribe, a consultation on its designation is required of the tribe,” said Eaton. “We do not decide what is sacred. A tribe does that. What I do as an employee of the federal government is lined out in regulations and policy, providing processes for what we’re responsible for.”
The Navajo Nation Cultural Preservation Department does not even accept contributions of other tribes’ sacred objects. “We only consult on what is Navajo. We refuse all but our own and then suggest the contributor take it to the appropriate tribe,” said cultural specialist Timothy Begay.
For their own edification the cultural-preservation department studied the Hopi masks. “We saw there was one replica of a Navajo mask,” Begay said. “We looked carefully at it, determining that it was a replica of a Yé’ii bi Cheii mask. In the on-line catalogue you could tell right away it was something somebody made to sell. It wasn’t an original.”
Watching over what is out there is part of what the department does. It’s a big job, especially in popular tourist country like the American Southwest.
“We can’t tell the people what to buy and not to buy,” Begay said. “But the vendors at local flea markets most likely sell art work and aren’t going to sell sacred objects. They know that it’s against the law. The Zuni said it best when they said, ‘buyer beware.’”
Manuelito Wheeler, director of the Navajo Nation Museum, in Window Rock, Ariz., agrees. “Any buyer needs to self-educate. Your best protection is your own knowledge, and your willingness to learn a little bit about what may be considered sacred. It’s best to ask the question directly of the vendor: ‘Is this object sacred?’”
He added that there is no easy answer to what is sacred and what is secular. “If I travel to Europe I will not know what is sacred or not. I may not know what I am getting into without learning for myself.”
But not all buyers are uneducated tourists. Many know exactly what they are looking for and the extreme poverty that exists on the reservations renders some Native people vulnerable to offers of hundreds or thousands of dollars for a replica.
According to Begay, “Some people [collectors] know what they want and it isn’t found in the flea markets they go directly to a medicine man. If someone agrees to make a replica, then there are consequences, repercussions. The family will suffer, and the person.”
Asked if he was referring to legal repercussions, he explained that in the Navajo belief system, “We were put on the earth with what we call natural laws that outline the dos and don’ts and how to live on the earth. Navajo people still follow the Way of Life, and most of the time we go back to the natural laws, which is what I am referring to with repercussions.”
World War II
The intense scrutiny of the Paris auction will bring change to international laws and regulations, he added. “When Hitler stole the art works and other cultural items and antiquities from all the European countries in World War II, the U.S. Roberts Commission, convened by President Roosevelt, had the money to go into the front lines at the close of the war, locate the stolen goods and repatriate the work back to the original owners, or the country of origin, and that included work that went back to France.
“Why was there no money to do this on behalf of the Hopi people at this time? No one even thinks about how the Hopis feel about this or about how we Navajo people feel about the replica Yé’ii bi Cheii mask. It is similar.”
Expanding protection to include better support of tribal cultural issues through international law could increase the vigilance on museums, collectors and sales worldwide.
The UNESCO convention applies to states/governments recognized by the United Nations. The United States and France are recognized states in the U.N., and therefore all Native American tribes under protection of the United States, by extension, expect recognition at the United Nations. Native American tribes do not need to seek independent statehood status at the United Nations.
“Some kind of leverage could have been used in this case,” said Begay.
The International Council of Museums, created in 1946, is the only organization of museums and museum professionals with a global scope, committed to the promotion and protection of natural and cultural heritage, present and future, tangible and intangible. It is a network of 30,000 members in 137 countries maintaining formal relations with the United Nations Economic and Social Council, UNESCO.
Its consultant status with UNESCO and partnerships with entities such as the World Intellectual Property Organization, INTERPOL and the World Customs Organization, enables it to carry out international publicservice missions, including fighting illicit traffic in cultural goods.
A leading force in ethical matters, the ICOM Code of Ethics establishes values and principles for museum governance, the acquisition and disposal of collections and rules for professional conduct.
“I really do commend the Hopi on what they tried to do,” said Begay. “At some point it’s going to affect all the tribes in the Southwest. We are the only place where the people still teach their language, and speak it. Our cultures and people are still connected to the land. That’s what connects us to these issues. That is what connects us to these masks.”
He said if the Hopi had won the case in Paris, “We would understand each other a lot better.
“The point it is that even the one replica Navajo Yé’ii bi Cheii mask in the auction, as an example, does not represent a way to make money. Instead, it is our way of life – it’s not about making a living or a collection.”