145 Seen from the point of view of the sacred and the idea of sacrilege when the sacred is defiled, or further from the perspective of the inalienability of the human body (and incarnated spirits, in this case), Survival International’s petition might appear irrefutable. According to this thesis, the sale of living beings or of spirits incarnated in sacred cult objects should not be authorized. A cursory and simplistic examination of French law, which protects and respects religions and beliefs and also prohibits the commercial use of human bodies, might seem to support the Hopi contention at first glance. The first article of the French law of separation of church and state of 1905, a key component of French secularism, states that “the Republic guarantees the freedom of conscience” and “guarantees the free exercise of religions … .” These guarantees are solemnly reaffirmed in the French Constitution of 1958, which, in its first article, specifies that France “respects all beliefs.” Again, consideration of these arguments could be taken to imply that the sale of living beings, and of spirits incarnated in sacred religious objects, would be unauthorized. And yet—and, in my opinion, quite correctly—in her order of April 12, 2013, the judge presiding over the Tribunal de Grande Instance district court refused to suspend the controversial auction, which then took place as planned at 2:30 p.m. that day. The judge’s skillfully crafted opinion took pains not to disparage the Hopi tribe’s religious beliefs, admitting that: The masks in question do, for the Hopi people and those who practice the traditional religion associated with them, have sacred value and are of a religious nature insofar as they incarnate their ancestors. However, she continued: … they cannot be associated with human bodies or considered as parts of human bodies of persons who exist now or in the past, which would be protected by general principles of law as stated by article 16-1 of the civil code. The fact alone that these objects can be identified as religious objects, as symbols of a faith, or as sacred or divine representations is not sufficient for us to consider them as being of an untransferable nature or of there being anything manifestly illicit or harmful FIG. 4 (right): Indian (Native American) Participation—Hopi dancers with animal masks and schoolchildren. © New York World’s Fair 1939–1940 records, Manuscripts and Archives Division, The New York Public Library, Astor, Lenox and Tilden Foundations, image ID 1675751.
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