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You Can’t Convey What You Don’t Have

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.

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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.