ON SURVIVAL INTERNATIONAL FRANCE'S STANDING
Pursuant to Article 31 of the French Code of Civil Procedure, a claim can only be brought by
persons who have a lawful interest in the success or the dismissal thereof, subject to those cases
where a law grants such right upon certain persons whom it recognizes can bring or oppose a
claim or defend a given interest.
Regarding associations, they can take part in judicial proceedings to defend the collective
interests covered by their statutory purpose.
In this instance, Survival International France's statutory purpose is to help indigenous minorities
throughout the world to defend their rights to survival and to self-determination and to ensure
that their interests are appropriately taken into account in any decision likely to have an impact
on their future, and to ensure their ownership and use of adequate territories and other resources
necessary to them.
In accordance with general principles recognized under French law, the plaintiff cannot represent
the Hopi Tribe or bring such Tribe's claims on its behalf.
However, Survival International France has standing to bring this motion for a temporary
restraining order, insofar as such motion relies on the assertion that the objects proposed to be
put up for auction constitute goods necessary to the expression of the Hopi Tribe's beliefs and
which allow the members of such Tribe to interact with their ancestors.
ON THE HOPI TRIPE'S PERMISSIVE JOINDER
Beyond the question of the Hopi Tribe's standing, it must be noted that the Tribe was not
authorized to bring a motion for a temporary restraining order by way of a preemptive ex parte
motion, and that defendants' counsel was informed of the Hopi Tribe's intention to join Survival
International France's motion on April 10, 2013, at the court hearing itself.
The Néret-Minet, Tessier & Sarrou auction house clearly lacked time to prepare its defense in
this regard.
In accordance with Article 16 of the French Code of Civil Procedure, which requires all judges
to ensure that the audi alteram partem principle is respected under all circumstances, the Hopi
Tribe's permissive joinder must be declared null and void.
ON THE MERITS OF THE MOTION
Pursuant to Article 809, par. 1 of the French Code of Civil Procedure, the President of the
Tribunal can always, even in the presence of serious opposing claims, issue restraining orders in
expedited fashion in order to prevent imminent damages or to interrupt a manifestly unlawful
disturbance.
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In the case at hand, Survival International France has not established that it will be absolutely
impossible for it to bring a judicial claim on the merits against the potential acquirers of the
objects sold at the auction.
Even so, Survival International France does not claim to be the rightful owner of the concerned
masks.
Besides, it has not demonstrated the manifest violation of any applicable law or any general
principle recognized under applicable law.
While the American Indian Religious Freedom Act dated August 11, 1978, cited by the plaintiff
(albeit without submitting any translation thereof), recognizes the religious freedom for
American Indians and the right for the same to practice their traditional religions, no provision
forbidding the sale, outside of the United States of America, of objects having been or likely to
be used for religious ceremonies is applicable in France.
And while pursuant to Articles 11 et seq. of the United Nations Declaration on the Rights of
Indigenous Peoples dated September 13, 2007, the signatory states have committed to "provide
redress (…) developed in conjunction with indigenous peoples, with respect to their cultural,
intellectual, religious and spiritual property taken without their free, prior and informed consent
or in violation of their laws, traditions and customs," such declaration does not constitute a legal
basis for an action brought against an auction house seeking acquirers for goods that a private
individual claim's to rightfully own.
Lastly, while the concerned masks retain a sacred value for individuals who claim to belong to
the Hopi Tribe or to practice such Tribe's religious traditions, and while they are religious in
nature and embody the spirit of such individuals' ancestors, such masks cannot be deemed human
bodies or parts of human bodies (whether living or deceased), which are protected under general
principles recognized under applicable law and set forth in Article 16-1-1 of the French Civil
Code.
The mere fact that these objects can be considered ritual objects, symbols of a given faith, or
divine or sacred representations does not render them untradeable and therefore their sale does
not amount to a manifestly unlawful disturbance or an imminent damage and as such, does not
fall within the attributions of the President of the Tribunal set forth under the above-mentioned
par. 1 of Article 809.
Survival International France's action does not fall within the scope of Article 808 of the French
Code of Civil Procedure either, inasmuch as Néret-Minet Tessier & Sarrou presented serious
opposing claims and as there are no grounds for a dispute by the plaintiff (who does not claim to
own the goods itself) on the ownership of the concerned goods.
Therefore, there are no grounds for expedited proceedings.
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Fairness does not warrant the application of Article 700 of the French Code of Civil Procedure.
[Note: Article 700 allows the judge to order attorneys' fees and other litigation costs to be borne
by the losing party]
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