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about their being sold, which would allow the judge presiding over the Tribunal de Grande Instance to act in accordance with the powers it is given by article 809, paragraph 1.” The judge also asserted that neither the American Indian Religious Freedom Act of August 11, 1978, nor the United Nations Declaration on the Rights of Indigenous 146 Peoples adopted by the General Assembly on September 13, 2007, could be the basis for a judgment in her court. No violation of French law or of principles generally admitted in French law laid the foundation for the petition to suspend the auction. The principle this judgment relies on is evident: The alleged illegality of a sale must be established to be a violation of a rule of positive law. That is a minimum prerequisite in any situation where the rule of law applies. Moreover, as far as I am concerned, recourse to notions of morality every time the law does not satisfy a restitution demand by a group that claims exclusive ownership rights, or a demand to prohibit the sale of antiquities or tribal art objects that may be considered sacred or inalienable in their country or place of origin, is inappropriate. In an earlier article on France’s restitution of Maori heads to New Zealand, I expressed concern that a Pandora’s box had been opened with the passage of the law enacted by the French National Assembly by an enormous majority on May 18, 2010, with complete disregard for the principle of the inalienability of public property and the property in French museum collections, which, according to the French Senate representative, “… touched on ethical and moral questions relating to human dignity and to the respect due the cultures and beliefs of other people.” Morality, be it secular or religious, is in a state of constant evolution. What was “sacrilege” yesterday no longer necessarily is today, and no one can pretend to know what it will be tomorrow. There is obviously no such thing as an objective notion of sacrilege. In the case before Paris’ Tribunal de Grande Instance court, the recognition of objects made sacred by a religion as inalienable, as respectable and attractive as it may seem, would clearly lead to impossible situations. Who would be able to judge the sacredness of things and how could judges enforce such rules? Will we prohibit the sale of bibles, of torahs, of rosaries, of sacred water, or of a fifteenthcentury Flemish triptych depicting the Annunciation? Would all belief systems protected by the French Constitution of 1958 have the right of recourse to this idea of the sacred? Will we, in order to avoid slipping into sectarianism, be forced to reinstate state religions, which alone would have this privilege? Will we also have to empty our museums, in which sacred objects are viewed by the profane? And in the event a “sacrilege,” or “crime,” was committed, what punishment would be imposed on the guilty? Moreover, would it be enough that an object be “invested” with a belief, or a ritual or philosophical FIG. 5 (below): Indian war dance, chanters, and drum beaters performing at war dance ceremony at Taos Pueblo. Bluford W. Muir, August 1960. © U.S. Forest Service, photo number: 497530. FIG. 6 (right): A collection of Katsinas as seen at the Heard Museum, which deals with the diverse Native American cultures found throughout Arizona. From the Flickr photostream of InSapphoWeTrust, 2009. FIG. 7 (lower right): Color plate with seven Kachinas. From Jesse Walter Fewkes, Dolls of the Tusayan Indians, E. J. Brill, Leiden, Netherlands, 1894, plate 11. ART+Law


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