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Attorney for the Hopi Katsinam: A Conversation with Pierre Servan Schreiber

As the auction house Néret-Minet Tessier & Sarrou was preparing to auction 70 Hopi katsinam in Paris, the indigenous-rights group Survival International tried to prevent or delay the sale through with a hearing in a French court. Lawyer Pierre Servan Schreiber, Managing Partner of the Paris office of Skadden, Arps, Slate, Meagher & Flom LLP, was chosen by Survival International to make the case. Ultimately, the effort was unsuccessful. He spoke with ICTMN about the saga, and its meaning for future sales of sacred items.

What reasons did the judge give for rejecting your request that the auction be stopped?

She considered that in French law, the only items that could not be sold would be parts of the human body. But we had mentioned two French legal precedents, or jurisprudences. First, there are tombs and funeral items that cannot be sold. And one family member is not allowed to sell family property that has belonged to a whole group over many generations. Those two characteristics applied to the Hopi masks -- the Hopi's relationship with them is similar to our relations, in France, to sepultures, and to the dead, that we pray by their tombs. For the Hopis, this goes through their masks, they are a symbol of communication between death and life. Then the family wealth, which cannot become a business -- same for the Hopis: These belong to a whole tribe, and not one person.

But it was an emergency procedure, I had been called on Monday night to challenge the auction on Friday, and the Hopi found out about it on March 30, ten days in advance. And I assume that they did not like the idea of a trial -- their name means "Peace." The whole thing started when Survival International contacted us, at the last minute. 

Could any laws have a real effect on auctions -- for instance, the 1970 UNESCO law, CITES, or Unidroit?

Those laws only apply to Nation-states, they do not imply any obligations on individuals. There should be a specific law for such cases, giving the court the possibility to decide which objects could be sold, as a business. The obligation not to sell applies to the state of France, not to the auctioneer. So, as long as France does not change the law, nothing forbids such sales.

Could the judge’s reaction be related to a rejection of religiosity, in the French political context, and the debate opposing secular and religious groups, as well as the extreme right's ideology towards ethnic minorities?

Not directly; the reasons were primarily related to an emergency procedure, as we filed the action on Monday, and were not scheduled for hearing until Friday, the day of the auction. The judge tried to respond in that context, with an emergency procedure -- what would have happened, if she had said those masks are not sellable, to items in the Branly museum or the Louvre sharing those common characteristics?

That is why my argument was based on the sacred function of the masks today, as in the past, their relation with the cult of the dead, and as embodiments of the dead’s spirits. But then, of course, the next issue would be: If we forbid an item’s sale because it is considered sacred by a few, how far do we go in prohibiting sales?

Don’t you think that this decision reflects our society's positions on issues addressing the religious realm?

I think a real awareness about spirituality is happening in the world, with a strong move towards spirituality, as we are recovering from materialism. But changes will not happen in two years. Though events such as this one could help. In this case, the whole sale had to be stopped: and if there had been just one mask, among others, we could probably have removed it from the auction. But the whole collection! It would have done injustice to the auctioneer, who had already paid the fees. So who would have paid the damages? The judge must have wondered about it. But maybe next time, taking the case earlier, we will be able to remove one or two pieces; and then the next one more, and like that… It will be a progressive process, with the participation of the media, canceled auctions, trials etc. By creating a special climate, we will initiate the process of setting up new laws to stop such sales.

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Do you have experience in this field? Why did you take the case pro bono?

My associates and I thought it was so interesting, we took it right away, as we are part of a group of lawyers Alliance des Avocats pour les Droits de l’Homme (Alliance of Lawyers for Human Rights), a service that connects NGOs in need with law firms who offer their assistance for free. Survival International contacted the Alliance, who contacted us, among many other firms. And we were the first to answer. We were very motivated, without any idea of what would happen, and not knowing Native American art, or culture. It was my first experience in that field. I reacted spontaneously.

What is the experts' responsibility in this type of situation? The auctioneer said he relied on their interpretations to proceed with the sale, as according to them, the katsinam were only sacred while they were being used in a dance.

The experts' responsibility can always be questioned, but in this case, there is no obvious fault: If we were to interrogate them, they would explain their reasons. So, yes, it is a mistake, but they are allowed to think what they want. And on a judicial level, there is no responsibility; which is precisely the problem with experts, as there are good ones and bad ones. And they only give their opinions; thus they are having no responsibility, or a minor one. 

Do you think it will be possible to be more effective in fighting future auctions?

Oh sure! With more time it is possible. If the auctioneer tells his seller that the Court is in the process of taking jurisdiction over the items, chances are that the auction stops. As there would be too much lawyer’s fees, and the auction might not be possible. But two days in advance, we could not do much.

What is your opinion on the comparison of Nazi looted art and Native stolen art?

It does not address the same issues, and would be incorrect to compare. The Nazis had one obsession: to destroy the existence of the Jewish population, by theorizing and controlling. With a single idea in mind: exterminate the entire Jewish population.

There are no signs of such determination regarding the extermination of Native populations.

So, did you have a chance to see the katsinam?

Sure! And I bought one, to give back to the tribe when I meet the chairman in Arizona, who, during the debriefing with the tribal counsel -- after the auction -- made a very moving speech. I told him I would bring the mask, to give it to him with my own hands. I would not do it any other way, since I bought it to return it to the tribe.