“If Not the Deep Web, Paris”: Indigenous Items of Cultural Property Appear at Parisian Auctions - Fordham Intellectual Property, Media & Entertainment Law Journal
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“If Not the Deep Web, Paris”: Indigenous Items of Cultural Property Appear at Parisian Auctions

“If Not the Deep Web, Paris”: Indigenous Items of Cultural Property Appear at Parisian Auctions

One year ago, in mid-November, 2019, a living member of the Acoma Pueblo tribe returned home to west-central New Mexico after decades of being away.1 This member of the tribe, however, was not a person in the traditional Western sense, but rather an item of extreme cultural significance to the tribe, one of its sacred Acoma Shields.2 Under Acoma law, these shields are collectively owned and can neither leave the pueblo nor be sold or destroyed.3 They are considered living beings and an aspect of the tribe’s identity as a people rather than works of art.4 This particular Acoma Shield had vanished in the 1970s, not to be seen by the tribe again until 2016, when agents from the FBI’s Bureau of Indian Affairs brought a photo of the shield to the tribe’s leadership, saying it was set for sale at a Parisian Auction house with a value of around 7,000 euros.5

Unfortunately, the appearance of the Acoma Shield at auction abroad is not the first or last time an item of Indigenous cultural property originating in the United States has appeared for auction in Paris. Almost 1,400 items affiliated with U.S. Indigenous tribes or having origins within the U.S. were offered for sale in Paris auction houses between 2012 and 2017, half of the items being sold for nearly 7$ million total.6 This includes cultural items from 13 tribes and Alaska Native entities, with the majority of such objects of cultural property having tribal affiliations in the southwest U.S.7

This is likely the case due to two essential failings of the law governing Indigenous cultural property. The first failing involves two international conventions. In response to the looting of cultural property, the United Nations Educational, Scientific, and Cultural Organization (UNESCO) adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (“The Convention”).8 The Convention, however, mostly leaves implementation and enforcement of its provisions to domestic legal systems, letting certain objects fall through cracks in domestic law.9 The second document is the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which provides a set of principles meant to protect the rights of the world’s 370 million indigenous peoples, including their right to cultural property.10 UNDRIP fails to enforce compliance, however, as it is not legally binding.11

The second failure leading to the ubiquity of Indigenous cultural property in foreign auction houses is likely the result of U.S. domestic law’s failure to provide adequate protection for privately owned Indigenous cultural property and its exportation.12 The Antiquities Act of 1906 sought primarily to curb looting, not exportation;13 the Archaeological Resources Protection Act of 1979 merely increased penalties for the illegal excavation and sale of such items;14 and, the Native American Graves Protection and Repatriation Act of 1990 only required the repatriation of Indigenous cultural property held in federally funded museums and federal agencies.15 These Acts, while protecting Indigenous cultural property on U.S. soil, have been found to have no weight abroad, including in France. Indeed, in three prior cases involving Parisian auction sales of the Hopi tribe’s sacred katsinam,16 French courts held that no Indigenous peoples have legal standing to pursue any cultural claim in France, ignored federal recognition the U.S. gives to tribes, and did not give any weight to the Hopi tribe’s Constitution.17

Ultimately, the primary reason Acoma Tribe Governor Brian Vallo was able to feel so grateful that generations of Acoma tribal members would have the opportunity to continue their way of life with the protection of the sacred shield18 is because of the enormous public pressure placed on the Paris auction house to withdraw the shield from sale. This public pressure included protests outside the auction house,19 pressure from U.S. officials,20 an open letter from Robert Redford,21 and for the man in possession to see how the Shields live in the Acoma culture today.22 The pulling of the Acoma Shield from the show in 2016, the year in which the most items affiliated with U.S. Indigenous tribes were sold at French auction, precipitated a dramatic fall in such sales.23 One hopes this dramatic change may be reflected in the legal recourse afforded Indigenous Peoples in the protection and repatriation of their cultural property abroad.

 

 


  1. Mary Hudetz, Native American Shield Returned to New Mexico from France, ABC News (Nov. 18, 2019, 8:03 PM) https://abcnews.go.com/US/wireStory/feds-native-american-tribal-shield-yearslong-push-67097875 [https://perma.cc/S3WQ-D7EN].

  2. Elena Saavedra Buckley, Unraveling the Mystery of a Stolen Ceremonial Shield, High Country News (Aug. 1, 2020), https://www.hcn.org/issues/52.8/indigenous-affairs-unraveling-the-mystery-of-a-stolen-ceremonial-shield [https://perma.cc/GG4X-K4J8].

  3. Id.

  4. Id.

  5. Id.

  6. U.S. Gov’t Accountability Off., GAO-18-537, Native American Cultural Property: Additional Agency Actions Needed to Assist Tribes with Repatriating Items from Overseas Auctions, at 6 (2018).

  7. Id.

  8. U.N. Educ., Sci., and Cultural Org. [UNESCO], Nov. 14, 1970, 823 UN.T.S. 231. In this convention, cultural property is defined as property that “on religious or secular grounds, is specifically designated by each State as being of importance for archeology, prehistory, history, literature, art or science.” Id. at 234.

  9. See Samantha K. Nikic, Liberté, Egalité, Fraternité?: The United Nations Declaration of the Rights of Indigenous Peoples Fails to Protect Hopi Katsinam from the Auction Block in France, 41 Brook. J. of Int’l L. 407, 412 (2015).

  10. G.A. Res. 61/295, Declaration on the Rights of Indigenous Peoples (Sept. 13, 2007).

  11. See Nikic, supra note 9, at 419.

  12. See Buckley, supra, note 2.

  13. 54 U.S.C §§ 320301-320303.

  14. 16 U.S.C. § 470ee(d).

  15. 25 U.S.C. §§ 3001-3013.

  16. Meaning “friends,” katsinam are imbued with the spirits of ancestors, important animals. They maintain the balance between the Hopi people and spirits and are used by dancers to sing for rain and crop irrigation, to mark the first sigh of the new moon, and to honor the relationship between man and eagle. See Leila Batmanghelidj, Bringing a Katsina Home, Survival Int’l, https://www.survivalinternational.org/articles/3315-bringing-a-katsina-home [https://perma.cc/KX54-NT8D]

  17. Pierre Ciric, Opinion: Hopi and Navajo Masks Auction Precedent in France is Dangerous, ArtNet News (July 25, 2014), https://news.artnet.com/market/opinion-hopi-and-navajo-masks-auction-precedent-in-france-is-dangerous-66975#:~:text=Opinion%3A%20Hopi%20and%20Navajo%20Masks%20Auction%20Precedent%20in%20France%20Is%20Dangerous&text=%C2%B2%20The%20Board%20held%20that,for%20any%20indigenous%20cultural%20property [https://perma.cc/DJ26-KCW7].

  18. See Hudetz, supra note 1.

  19. See Buckley, supra note 2.

  20. Tara Oakes, Hopi masks snapped up after French court allows sale, Reuters, Apr. 12, 2013 7:27 AM, https://www.reuters.com/article/uk-france-masks/hopi-masks-snapped-up-after-french-court-allows-sale-idUKBRE93B0FP20130412 [https://perma.cc/3BU9-M7CB].

  21. Id.

  22. See Buckley, supra note 2.

  23. U.S. Gov’t Accountability Off., GAO-18-537, Native American Cultural Property: Additional Agency Actions Needed to Assist Tribes with Repatriating Items from Overseas Auctions, at 7, fig. 1.

Nate Johnson

Nate Johnson is a second-year J.D. candidate at Fordham University School of Law. He is a staff member on the Intellectual Property, Media & Entertainment Law Journal. He graduated from Wesleyan University with a major in Art History and the College of Letters, an honors inter-disciplinary humanities program. Nate Johnson is the alumni relations chair for the Fordham Art Law Society and volunteers as a Debate Coach with the Mentoring Youth Legal Outreach program.