Motion for a temporary restraining order
[…]
II. DISCUSSION
Principally, the auction taking place leads to impending damages to interests defended by
Survival International France (hereafter, "SIF"). As such, this auction should be suspended,
and the objects to be sold should be placed in escrow (A).
If by the extraordinary the President of the "Tribunal de Grande Instance" would rule that
there is no impending damages, it would follow that the dispute existing between Survival
International France and the auction house Néret Minet Tessier Sarrou (hereafter "NMTS")
would solely justify these measures to be imposed (B).
A. Principally, on the existence of impending damages (art. 809 of French Civil
Procedure Code)
The first paragraph of article 809 of the French Civil Procedure Code provides :
"The president may always, even where confronted with a serious challenge, order in a
summary procedure such protective measures or measures to restore (the parties) to (their)
previous state as required, either to avoid an impending damage or to abate a manifestly
illegal nuisance."
On these grounds, the President of the Tribunal de Grande Instance has already suspended an
auction sale of objects whose ownership was not established with evidence1.
In this case, the existence of impending damages is characterized by the following elements :

There are serious doubts about the ownership of the masks to be sold, members of the
Hopi tribe for whom SIF is representing being able to claim a right of ownership over
these objects. The sale taking place would therefore irremediably disperse the masks
amongst a multitude of buyers, making it impossible to examine their provenance and
their eventual return to their rightful proprietors (1) ;

The sale would be of unsellable goods, violating French law to the detriment of Hopi
tribe members (2); and

The sale itself would present a seriously detrimental character to the dignity of the
Hopi tribe members, causing them significant moral damages (3).
1. On the imminent damages resulting from a serious doubt about the
ownership of the masks to be sold
1
See for example: Paris TGI, injunction, Association EMMAUS INTERNATIONAL v. SA TAJAN and Mr.
Jean-Christophe MENETRIER, Jny 28th 2008
Article 2276 of the French Civil Code provides :
"In matter of movables, possession is equivalent to a title.
Nevertheless, the person who has lost or from whom something has been stolen, may claim it
for three years, from the day of the loss or of the theft, against the one in whose hands he
finds it, subject to the appeal of the latter against the one from whom he holds it."
The French Supreme Court rules that acquisitive prescription can only be used against the
possessor in bad faith, against whom the proprietor has an unlimited claim2.
In this case, the notoriously un-transferable character of the masks (a) leaves serious doubts
about the seller's claimed property rights on these objects (b). In the absence of clarification
about this point, the maintaining of the sale leads to impending damages for SIF (c).
a) On the un-transferable character of the masks
As stated in I. hereinabove, the Katsinam masks are sacred objects that have an essential role
in Hopi's religious rituals.
These objects are considered as living people, and are the property of the Hopi tribe as a
whole. Therefore, such objects cannot be sold or transferred in any way whatsoever.
Thereby, for the Director of the Cultural Preservation Office of the Hopi Tribe, Mr.
Kuwanwisiwma:
"The sacred objects up for auction are owned by the Hopi tribe as a whole, they have a
cultural signification, they are part of a tribal and cultural right, they have never been owned
by one person. Because these objects are not owned by one person, they have no market
value and they cannot be sold." (Document 3).
This declaration perfectly reflects the position of American law on the subject.
Thus, the Hopi Tribe Constitution, written in 1936 and approved by the Bureau of Indian
Affairs – Department of the Interior) the same year, provisions in Article VI ("Powers of the
Tribal Council") :
"The Hopi Tribal Council shall have the following powers which the Tribe now has under
existing law or which have been given to the Tribe by the Act of June 18, 1934. The Tribal
Council shall exercise these powers subject to the terms of this Constitution and to the
Constitution and Statutes of the United States.
[…]
(c) To prevent the sale, dispositions, lease or encumbrance of tribal lands, or other tribal
property." (Document 9).
2
Cass.Civ. 1e, February 7th 1989, Bull n° 57
2
Since 1936, it is no longer allowed to acquire objects that the Hopi tribe as a whole is
proprietor of, which includes the Katsinam masks.
Consequently, any purchase of religious or cultural objects belonging to the Hopi tribe
subsequently to this date is illegal.
Furthermore, prohibiting the alienation of sacred objects belonging to American Indian tribes
is also subject to Federal laws.
As soon as 1978, via the American Indian Religious Freedom Act, the American Government
established that it wanted to "protect and preserve the inherent right of freedom of conscience
of American Indians, as well as the right to practice traditional religions of American
Indians, Eskimos, Aleuts and Native Hawaiians, which includes, but are not limited to, use
and possession of objects considered sacred and the freedom to worship through ceremonial
and traditional rites." (Document 10)
Especially, the Native American Graves Protection and Repatriation Act of November 16th
1990 requires for all museums on US territory who have collections of objects belonging to
the Indian tribes to establish a comprehensive inventory of these objects and to give them
back on request to the tribes owning them. (Document 11)
The above laws leave a serious doubt about the property rights which the mask seller could
invoke.
b) On the existing doubt about the masks ownership
According to the catalogue of the auction published by NMTS, the masks to be sold were
legally acquired on US territory from art galleries or auctions.
Giving the importance of the collection assembled (almost one hundred pieces), there is no
doubt that the seller is an experienced expert of the Hopi culture and of the cultural and
religious value of the Katsinam masks.
In this regard, the auction catalogue gives a precise and circumstanced description of the
signification of the different masks up for sale, and of their sacred character in the Hopi
culture.
In these conditions, it cannot seriously be held by NMTS that the bearer of these objects was
not conscious of breaking the law and the sacred character of these masks on acquiring them.
Generally, and despite NMTS's statements, the conditions in which such an important
collection could have been reunited are extremely vague and difficult to explain.
In his letter dated March 30th 2013, the Professor Patrick Perez, specialist of the Hopi culture
was surprised at the number of masks up for sale, such a collection being unprecedented and
without common measure with accumulated previous collections on the entire French
territory. (Document 6)
3
By letter dated April 4th 2013, Mr. Leroy N. SHINGOITEWA, President of the Hopi tribe,
requested to NMTS to give more explanations of the origins of the objects to be sold,
suspecting that they had been stolen. (Document 12).
NMTS did not see fit to reply to this request.
It is clear from these elements that a serious doubt exists on the conditions in which the
masks were acquired and exported from America to France.
Because of the bad faith of the collector, members of the Hopi tribe have a claim in order to
obtain the return of these objects.
However, the maintaining of the sale would eliminate all chances of being able to examine in
detail where the masks have come from, and obtain their possible return to the Hopi tribe.
c) On the interest to act and the impending damages for SIF
Survival's object and purpose are to help the indigenous population.
Due to the deprivation in which they live in since their quasi-extermination, they are badly
armed to be informed of continuous attacks on their lives, their property, their land, and their
crops, for which they are threatened.
Even when they are informed, they have very limited means, not only from a material point
of view, but also because of their relative lack of understanding of mechanisms, especially
political or judicial, of dominating societies to which, despite themselves, they are submitted.
Survival is therefore founded to act to prevent impending and irreparable damages to
property belonging to the Hopi tribe and their ancestral culture.
In the case where, despite the serious doubt about the ownership of the masks, the latter were
dispersed during the auction, any return of these objects to the Hopi tribe would be doomed
to failure.
Beyond good sense and the requirements of a good administration of justice, for obvious
practical reasons, any attempt to make an individual claim against each person having
acquired one of the masks up for sale would be doomed to fail.
Therein, keeping the auction on the day planned leads to impending damages for the Hopi
tribe and SIF, whose statutory object is to defend the interests of the indigenous populations,
and therefore has grounds to act to prevent this from happening.
In order to prevent all dispersion of masks during this procedure, it will be necessary to place
these objects in escrow, under article 1961 of the French Civil Code.
Consequently, it will please Mr. President of the Tribunal de Grande Instance to order the
auction to be suspended, and to designate NMTS as escrow agent for the masks up for sale.
4
2. On the imminent damages resulting from the sale of objects which are not
freely commercialized.
According to the terms of article 1128 of the French Civil Code:
"Only things which may be the subject matter of legal transactions between private
individuals may be the object of agreements."
According to the terms of article 1598 of the French Civil Code:
"Everything which may be the subject of legal transactions between private individuals may
be sold, where special statutes do not prohibit their alienation."
It follows from articles 1128 and 1598 of the Civil Code that an agreement, and especially a
sale, cannot have as a subject matter something which is not commercialized.
The distinction between what is commercialized and what is not has been drawn by the
French Supreme Court (Cour de Cassation) depending on either the subject matter's intrinsic
nature or its purpose.
As for the nature, it is important to distinguish between what may be the subject of dignity
and which must be treated as an end in itself, from what may be instrumentalised, depending
on its usage, and which may be used as a means. It follows that a human being or body
organs cannot be the subject of a legal transaction and therefore of a sale.
As for usage, the distinction could be between objects which have a symbolic or sacred value
which confers on them the status of collective, community or family heritage and others. The
latter must thus be protected both from fee trade and from market valuation. In this respect,
tombs and graves may not be regarded as having a money value and the sentimental value of
family memories or souvenirs has served to justify their unavailability for trade in the sense
of the Civil Code, despite their actual monetary value.
Considering the above definitions, it is without doubt that the Kasinam masks cannot be
considered as being commercialized, rendering the sale of such masks illegal.
Consequently, maintaining the auction would cause damage to the Hopi tribe and subject SIF
to the risk of imminent damage.
The Katsinam masks "that the Hopi call "friends", embody the spirit of deceased ancestors,
animals, natural elements and events and diverse divinities". Document 12
The masks occupy a central place in the religious rituals and costumes of the Hopi and
therefore have a sacred value. These "Katsinam Spirits" could not be relegated to legal
subject matters and even less to legal subject matters with a monetary value.
We can therefore only share the fierceness of Professor Robert G. BREUNIG for whom the
fact that these masks are "exposed – disembodied – in your catalogue and on Internet, is a
serious offense, a sacrilege" Document 2
5
The central importance that the Hopi give to Katsiniam masks in their cosmology is
resolutely incompatible with the notions of commerce and merchant exchange. As Professor
Perez underlines:
"(…) the Hopi masques are the collective property of the ceremonial hopi society, they would
not sell what they consider to be the heritage of sacred living human beings". Document 6
The "Katsinam Spirits" form a heritage since they belong to the entire Hopi community,
although they aren't anyone's property in particular. This is precisely what confirms M. Leigh
Kuwanwisiwma, director of the Hopi Tribe’s Cultural Preservation Office:
"the sacred objects which are being auctioned belong to the Hopi Tribe, they constitute a
cultural heritage, this means that they are subject to tribal and cultural laws, they never
belonged to one person in particular (…)As these objects don't belong to anyone in particular,
they do not have a market value and cannot be sold". Document 3
Consequently, for SIF as for the Hopis, the auction organized by an anonymous collector, to
anonymous potentials buyers, taking place hundreds of miles from their homes, can only be
considered as the profanation of the most sacred Hopi rituals.
The commercialization of the "spirits" and of their "friends" constitute a spiritual aberration
as much as a legal aberration that the Hopi tribe can neither understand nor accept. This is
also Professor Robert G. Breunig's opinion, who considers:
"no one can "own" katsinam friends, apart from the Hopi people(s), Zuni, Acoma and Jemez
that they come from (…) they belong to the communities from which they stem, specifically
their ceremonial society". (Document 2)
Therefore, the contemplated auction, which so flagrantly violates this sensitivity, the
defenders of which are made sycophants in their commercial catalogue ("this unique
collection of Katsinam dance masks, present to our amazed eyes, a world of beauty with very
elaborated geometric forms, surprising and colorful, the aim of which is to obtain "the rain,
source of life", so that the corn may grow and feed the "People of Peace": the HOPIS") can
only be qualified as illegal considering the terms of the civil code mentioned above.
More importantly, the contemplated sale defeats the distinction profane/sacred that the Hopi
have maintained and shared for centuries, on which is based their profound beliefs and that
SIF aims to protect.
By sacrificing the respect due to the sacred Hopi masks and to their deep beliefs and customs,
in order to organize the commercial publicity aiming to sell them at a profit, NMTS is
threatening to cause real, imminent and serious psychological and moral harm. SIF's aim is to
guarantee that such harm does not materialize. It therefore respectfully asks the President of
the High Court to order the suspension of the sale.
3. On the impending damage resulting from the blasphemous character of the
auction
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For the French Supreme Court, interfering with the respect of beliefs and religious feelings
may constitute an imminent damage, without it being necessary to characterize a damage of
an exceptional nature considering the number of people concerned by the interference .
In this case, the masks concerned by this sale have great religious value for the Hope tribe
which is many centuries old.
They are still used today during religious ceremonies. They are loved, cherished and fed in a
ritual manner. They also embody the link between the human world, the spirits of all the
living and ancestors.
As an introduction to the sale catalog (page 3), M. Daniel Dubois, specialist of American
Indians, underlines that each of these masks which are auctioned, form part of the "Katsinam
Spirits". Document 5
In total contradiction with the amazement and the respect that the sellers seem to have toward
to Hopi tribe, and their religious rituals, NMTS does not hesitate to try and make profit in a
manner which is broadly open to criticsm.
To SIF, the process of a public sale of the masks is extremely shocking and blasphemous.
Considering the past and the cultural customs of the Hopi tribe, the display of images of such
sacred objects is offensive and must, at least, be suspended.
In this respect, specialists have voiced their concern. Robert G. BREUNIG has warned
NMTS of the fact that these masks are "exposed – disembodied – in your catalogue and on
Internet, is a serious offense, a sacrilege". Document 2
For their part, the Hopis have declared that "these objects can only be qualified as sacred
objects, and their incorrect labeling and the publication of images is highly disrespectful
toward the entire American Indian community generally and the entire Hope tribe
specifically".
It is therefore the sale process in and of itself which presents a blasphemous and offensive
character.
To this end, the contemplate sale constitutes an imminent damage for the Hope tribe and for
SIF.
Consequently, we respectfully ask the President of the High Court to suspend the
contemplated sale for a time which would enable the members of the Hopi tribe to establish
their proprietary rights upon these objects.
B. On the measures which justify the existence of a dispute (Article 808 of the Civil
Procedure Code)
If, quite extraordinarily, the President of the High Judge were to judge that SIF does not face
imminent damage due to the sale, it could only note that the suspension of the sale imposes
itself by virtue of Article 808 of the Civil Procedure Code, according to which:
7
"In all cases of urgency, the president of the High Court may order in a summary procedure
all measures that do not encounter any serious challenge or which the existence of the dispute
justifies."
In this case, it flows from paragraph II.A.1.b), above that there is a dispute between SIF and
NMTS about the ownership of the masks which are on sale.
In order to clarify the origin and the ownership of these objects, it is necessary to suspend the
auction process as this dispute will not be resolved if the masks are dispersed between
multiple buyers.
In these instances, the existing dispute between SIF and NMTS justifies that the sale be
suspended and that NMTS be nominated escrow agent of the masks whilst awaiting
substantive proceedings on the merits.
In order to assert its rights and further the interests of those it represents, SIF has incurred
costs which it would inequitable for it to face alone. Consequently, it is asked from the
President of the High Court to request NMTS to pay the sum of 1.500 euros according to the
terms of article 700 of the civil procedure code.
8