What is your opinion on the
Paris auction of Hopi art, and how do you see the issue,
as a lawyer specializing in Nazi looted art?
Well, there are no
international conventions addressing Native American
artifacts, yet it is something that the Americans should
be convening, and discussing. Because the laws in the
USA protecting those native artifacts have no weight
Regarding the Nazi looted
assets, there have been conventions signed by over 45
countries. But that has not been done for the Native
But to me, the cases should not
be handled in a different way; the auction house should
pull off the items from the sale, the two parties should
meet to discuss the provenance of the objects, where
they were purchased, look at the documentation of
purchase, to check if those objects are genuine, or if
there are some reproductions, or fakes, etc.
ICTMN: How does one determine to
legally repatriate Nazi artwork, and what are the
factors that would differentiate the Nazi looted art
from the Native art repatriation?
The international conventions
require countries to address Nazi looted artifact, but
there is nothing like that in France for Native claims,
or any laws like the convention of Washington 1998,
concerning Nazi looted art, which has been signed by
So those auction houses will
hide behind the fact that the consigners have items in
good faith. Which is not morally right.
And we do not support that: the
two parties should discuss the provenance of the
objects, to determine if they should go on public sale,
together with the members of the tribe who are claiming
It was foolish to go on with
the sale, given the media attention; the problem is not
solved, as the next owner may have to face the same
issues. So pulling them from the sale would have been
the wisest move.
ICTMN: What are the rules of thumb for
these kinds of situations?
The traditional methods, with
Nazi looted assets, are to request the auction to retire
from the sale, and the parties to meet, like the
Norwegian case we are dealing with right now. It
requires sitting down with the lawyers, looking at the
documentation, and consulting the laws of the countries.
In the Hopi case, there are
moral claims to those items -- and that would be the
rule of thumb. Discussing the moral issues, and weighing
them against the legal issues.
ICTMN: What is your opinion on the
notion of “stolen art”: the auctioneer mentioned that
you couldn’t compare this case with Nazi looted art,
because the Hopis themselves would sell their own items?
If it was the case that the
tribal members sold -- did they have to right to sell?
As no tribal member can own items with a religious
significance. They belong to the entire tribe. That
applies to a priest selling an artwork, he might not
have the authority.
France is part of the 1970
UNESCO convention, so the pieces should have been pulled
off, parties should have had a discussions to see which
pieces could be sold, which were not genuine, what were
the moral claims, what was important to the tribe, what
is the compensation. And if the consigner has acquired
them in good faith, a lot of issues have to be debated
between the two parties. And the best people to
determine if the items are authentic are the tribal
members themselves. They are the ones to decide what can
be sold. That could be the beginning of the resolution.
ICTMN: How do you determine what
objects have to be returned?
You need to first determine the
basis of the claim. Claiming the Mona Lisa does not mean
you own it.
ICTMN: The auction house has argued
that some of the masks are not sacred.
The first thing to discuss with
the tribe is their claim: Which pieces have a religious
significance, and which could be sold? This the frame
works of the restitution. And that has to be determined
with the tribe.
ICTMN: So there are no predetermined
criteria of repatriation, like in Nazi cases?
Christopher Marinello: We determine the basis for the
original owner's claim -- some are victims of Nazi
looting, some sold legitimately, some were forced to
sell. The first step is to analyze where the particular
ICTMN: How do
you see the evolution of Native American art sale in
It will take a case that spurs
lobbying for more regulations. And this may be the one
that could help Native American tribes, by making
stronger laws in the US and treaties to be signed