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Expanding the Scope of Museums' Ethical Guidelines With Respect to Nazi-Looted Art: Incorporating Restitution Claims Based on Private Sales Made as a Direct Result of Persecution

Published online by Cambridge University Press:  11 June 2007

Andrew Adler
Andrew Adler
Affiliation:
University of Miami and Emory University. Email: aa2077@law.miami.edu
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Abstract

Since the late 1990s, the American museum community has nobly sought to resolve restitution claims involving Nazi-looted art in an equitable fashion. Under the auspices of various ethical guidelines recognizing the horrific tragedies of the Holocaust, museums have made a commitment to purge their collections of artwork tainted by Nazi theft. It remains unclear, however, whether these guidelines govern restitution claims that are based not on Nazi theft but on coerced sales arising from Nazi persecution. This article argues that the scope of the guidelines should be expanded to govern restitution claims arising from coerced sales, and that coerced sales include not only sales in which the Nazis participated but also private sales made by individuals who, as a direct result of Nazi persecution, who were forced to sell their artwork to flee or otherwise survive the Holocaust.ACKNOWLEDGEMENTS: I would especially like to thank Professor Stephen Urice for his indispensable insight and overall support in the development of this article. I would also like to thank Ildi DeAngelis and Professor John Merryman for their excellent suggestions, and Thaddeus Stauber for his willingness to discuss the Martha Nathan cases.

Information

Type
Research Article
Information
International Journal of Cultural Property , Volume 14 , Issue 1 , February 2007, pp. 57 - 84
Copyright
© 2007 International Cultural Property Society

I. INTRODUCTION

Although no attempt has previously been made to explicitly categorize Holocaust art restitution claims, I propose that they can be organized into two general categories: (1) those based on Nazi confiscation and (2) those arising from coerced sales. Although it is clear that claims based on confiscation are limited to theft, looting, and forcible physical possession by the Nazis, it is unclear just how far the concept of coercion extends in this unique context.

I believe it is useful to divide the category of coerced sales in to two subcategories. The first subcategory involves sales that can be said to have been made as a proximate result of Nazi persecution. These sales can be conceptualized as gun-to-the-head–type transactions, where the persecution occurred contemporaneously with or immediately preceding the sale (and were therefore sales in which the Nazis participated).1

I therefore use the word proximate in its ordinary context and do not mean to reference the legal doctrine of proximate cause. See Webster's Online Dictionary, sub voce proximate, defining proximate as “closest in degree or order (space or time) especially in a chain of causes and effects” and “very close in space or time”. See http://www.websters-online-dictionary.org/definition/proximate (accessed March 5, 2007).

The second subcategory involves private sales that were made as a direct (but not proximate) result of Nazi persecution. These sales are a direct consequence of such persecution in the sense that, despite any intervening lapse of time, the effects of particular acts of Nazi persecution acted as the undeniable and predominant cause of the sale.2

See Part V for more discussion on this standard. Note also that under this conceptual framework, sales made as a proximate result of persecution are also made as a direct result of persecution but that sales made as a direct result of persecution are broader and include private sales made as a result of persecution that occurred at a time preceding the sale. See Part II B for concrete examples that illustrate the distinction between these two subcategories.

As described in the following text, the claimants in three recent disputes have brought restitution claims arising from private sales of art made by their persecuted Jewish ancestors as a direct (but not proximate) result of Nazi persecution. In these cases the claimants' persecuted ancestors sold their artwork to flee, survive, or otherwise maintain themselves during the Holocaust. The coercion in these cases is temporally divorced from the sale of the art; the ancestors did not have guns to their heads during the actual sale. Instead, the coercion arose from prior intense persecution, the effects of which subsequently forced them to sell their valuable artwork. The principal focus of this article is on this subcategory of restitution claims.

The core question I wish to examine is whether museums have an obligation to review these restitution claims in accordance with the widely adopted ethical policies and guidelines governing Nazi-looted art. It is important to emphasize at the outset that these guidelines, summarized in Part III, are ethical standards that museums apply when confronted with restitution claims based on Nazi confiscation. In other words, they go beyond what is required by the law. They encourage the equitable resolution of claims without resorting to litigation,3

See American Association of Museums, “Guidelines,” 4(c), (e): “If a museum determines that an object in its collection was unlawfully appropriated during the Nazi era without subsequent restitution, the museum should seek to resolve the matter with the claimant in an equitable, appropriate, and mutually agreeable manner…. When appropriate and reasonably practical, museums should seek methods other than litigation (such as mediation) to resolve claims that an object was unlawfully appropriated during the Nazi era without subsequent restitution.” Association of American Art Directors, “Report of the AAMD Task Force,” E(2), (3): “If after working with the claimant to determine the provenance, a member museum should determine that a work of art in its collection was illegally confiscated during the Nazi/World War II era and not restituted, the museum should offer to resolve the matter in an equitable, appropriate, and mutually agreeable manner. AAMD recommends that member museums consider using mediation wherever reasonably practical to help resolve claims regarding art illegally confiscated during the Nazi/World War II era and not restituted.” Washington Conference Principles on Nazi-Confiscated Art, ¶¶8, 11: “If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case. Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.”

and even suggest that museums waive their legal defenses, such as the statute of limitations, that could otherwise prove dispositive in court.4

American Association of Museums, “Guidelines,” 4(f): “AAM acknowledges that in order to achieve an equitable and appropriate resolution of claims, museums may elect to waive certain available defenses.” The AAM Guidelines are the only Nazi-related guidelines or policy statements to make this critical suggestion. See Part III.

It is therefore critical to ascertain the scope of these guidelines: Precisely what types of restitution claims do they cover? As discussed in Part III, I conclude that the various guidelines are insufficiently clear as to whether they govern claims based on private sales made as a direct (but not proximate) result of Nazi persecution.

In Part IV I examine whether the scope of these ethical guidelines should in fact be expanded to govern this subcategory of restitution claims. I review principles embodied in postwar restitution policies and disputes decided by various European tribunals that support such an expansion. In addition, and perhaps most importantly, I propose that distinguishing restitution claims based on Nazi confiscation and restitution claims based on private sales made as a direct (but not proximate) result of Nazi persecution is not grounded in history or common sense. After proposing that the ethical guidelines should govern these claims, I conclude in Part V by discussing the limitations of this proposed expansion.

II. CATEGORIZING HOLOCAUST ART RESTITUTION CLAIMS

A. Confiscation

There are numerous examples of Holocaust art restitution claims based on theft, looting, or confiscation carried out by the Nazi regime.5

See, for example, Clark, “World War II Restitution Cases.”

The first reported decision and archetypal example is Menzel v. List where the Menzels fled Brussels in 1940, leaving all of their possessions behind, including a Marc Chagall painting.6

267 N.Y.S.2d 804, 806 (N.Y. Sup. Ct. 1966), modified, 279 N.Y.S.2d 608 (N.Y. App. Div. 1967), rev'd, 24 N.Y.2d 91 (N.Y. 1969).

They returned 6 years later and found that “the painting was seized by the ‘Einsatzstab der Dienststellen des Reichsleiters Rosenberg’ on or about March 31, 1941, and a certification or receipt left, indicating that the painting, among other works of art, had been taken into ‘safekeeping.’ ”7

Menzel, 267 N.Y.S.2d at 806.

Nazi confiscation was also responsible for the recent dispute between Austria and Maria Altmann over five Gustav Klimt paintings. Altmann was the sole heir to Adele and Ferdinand Bloch-Bauer, the original owners of the paintings. These paintings were ultimately housed at the Austrian National Gallery after the Nazis initially confiscated them in 1938:

On March 12, 1938, in what became known as the “Anschluss,” the Nazis invaded and claimed to annex Austria. Ferdinand, who was Jewish and had supported efforts to resist annexation, fled the country ahead of the Nazis, ultimately settling in Zurich. In his absence, according to the complaint, the Nazis “Aryanized” the sugar company he had directed, took over his Vienna home, and divided up his artworks, which included the Klimts at issue here, many other valuable paintings, and a 400-piece porcelain collection.8

Republic of Austria v. Altmann, 541 U.S. 677, 682 (2004). The Supreme Court addressed only the issue whether the Foreign Sovereign Immunity Act (FSIA) applied to events that occurred prior to the enactment of the statute; also at 681. After holding that FSIA did apply retroactively, the dispute went to arbitration in Austria where it was determined that the five paintings should be restituted. Bernstein, “Austrian Panel Backs Return of Klimt Works.” The five works were subsequently sold for a combined total of $327 million. Kinsella, “Gold Rush.”

Another recent example is the Utah Museum of Fine Arts 2004 decision to return a painting by Francois Boucher to the heirs of original owner, Andre Jean Seligmann, who fled Nazi Germany.9

“After Mr. Seligmann fled the country, Hitler's aides, on the instructions of Hermann Goering, confiscated over 400 paintings from his gallery, including the Boucher painting. Goering apparently visited the Seligmann gallery before the war and admired its collection.”10 Similarly, in March 2004 the Czech government agreed to return 150 paintings to the heirs of art collector Arthur Feldmann.11 “In 1939, the Nazis confiscated Feldmann's art collection, which included over 700 drawings.”12

B. Coerced Sales

1. Sales Made as a Proximate Result of Persecution

In October 2006, the Holocaust Claims Processing Office (HCPO)13

The HCPO is part of the New York State Banking Department created by New York Governor George Pataki on June 25, 1997. Its mission is to “recover assets deposited in European banks,” “recover monies never paid in connection with insurance policies issued by European insurers,” and “recover lost or looted art.” Holocaust Claims Processing Office, “History and Mission.” http://www.claims.state.ny.us/hist.htm (accessed January 25, 2007).

announced that a painting entitled Aimee, a Young Egyptian, by Emile Lecompte-Vernet would be returned to the estate of Dr. Max Stern.14 In August 1935, Dr. Stern, the owner of a prominent art gallery in Düsseldorf, Germany, became legally prohibited from buying or selling art in Germany.15 Then in September 1937, the Reich Chamber of Culture (RKK) gave Dr. Stern the final order to “immediately sell his gallery's remaining inventory through a Nazi-approved RKK dealer. The Gestapo enforced this order and on November 13, 1937, Dr. Stern liquidated the gallery's remaining stock—more than 200 paintings—at a fraction of their market value at Lempertz auction house in Cologne.”16

An additional example of this type of restitution claim occurred in 1997, when Belgium brought a claim to recover works by Monet held at the Metropolitan Museum of Art.17

Reichsmarschall Hermann Goering acquired these works from art collector Emile Renders after the Nazi occupation of Belgium:

In 1940, Goering so coveted the 20 Netherlandish paintings in Renders' collection that during negotiations, he arranged to have Nazi currency officials block Renders from selling them to anyone else. And when negotiations faltered, he made an unsubtle threat to Renders: “Should you this time again not be able to decide,” Goering wrote Renders, “then I should be compelled to withdraw my offer and then things would go their normal way, without my being able to do anything to impede it.”18

In yet another example involving Goering, in February 2006 the Dutch government agreed to return numerous works held in at least 17 national museums to the heirs of Jacques Goudstikker who

died aboard ship while escaping Holland soon after the German invasion of Holland in 1940…. Goering visited the gallery within days of Goudstikker's flight, and ultimately acquired the entire collection for a fraction of its value in a coerced transaction arranged by his dealer, a German named Alois Miedl.19

As a final example, which again arises from the Altmann dispute but based on facts in addition to the initial Nazi confiscation described above, the Klimt works ultimately came in to the possession of the Austrian Gallery through the operation of an

Austrian law … that prohibited the export of artworks that were deemed to be important to Austria's cultural heritage. It was the policy after the war to use the export license law to force Jews who sought export of artworks to trade artworks for export permits on other works.20

Altmann v. Republic of Austria, 142 F. Supp. 2d 1187, 1193–94 (C.D. Cal., 2001), aff'd, 317 F.3d 954 (9th Cir. 2003), aff'd, 541 U.S. 677 (2004).

In December 1998 Austria enacted a restitution law “designed to return artworks that had been donated to federal museums under duress in exchange for export permits. A committee of government officials and art historians was formed by the new law, and in February 1999, the committee recommended that hundreds of artworks be returned to their rightful owners.”21

Altmann, 142 F. Supp. 2d at 1195–96.

Although factually distinguishable from the above examples (and not technically involving the Nazis), claims based on these donations made in exchange for export permits conceptually fall within this subcategory of coerced sales as well.

The common element in each of these coerced transactions is the overwhelming presence of persecution immediately surrounding the transfer of the art: The Nazis ordered Dr. Stern to sell his gallery through a Nazi-approved dealer; Goering threatened Renders if he did not sell his artwork; Goering acquired Goudstikker's collection in what appears to be a sham sale; and Austria required donations from Jews in exchange for issuing export licenses. Because Nazi persecution was involved in the actual transfer (except in the last example), the restitution claims in these cases can be said to be based on sales made as a proximate result of persecution.

2. Sales Made as a Direct (but Not Proximate) Result of Persecution

The three recent disputes set out in the following text all involve restitution claims based on a different type of coerced sale—a private sale made as a direct (but not proximate) result of Nazi persecution. In other words, because the Nazis did not directly participate in the circumstances surrounding the sale, the sales in these cases are not a proximate result of Nazi persecution. The private sales forming the basis of the claims, however, are nonetheless a direct, causal consequence of the effects of prior, sustained Nazi persecution. I review these disputes in detail to illustrate both the factual nature of these restitution claims and how they would typically unfold in American courts.

a. Martha Nathan. At issue in Toledo Museum of Art v. Ullin were competing claims of ownership over a Paul Gauguin painting entitled Street Scene in Tahiti (the Gauguin) between current possessor, Toledo Museum of Art (TMA), and 15 heirs of Martha Nathan, a previous owner.22

Toledo Museum of Art v. Ullin, No. 3:06 CV 7031, 2006 U.S. Dist. LEXIS 93627 (N.D. Ohio Dec. 28, 2006). For the sake of simplicity, I discuss only the case involving TMA, despite the fact that a virtually identical, parallel lawsuit was coordinately filed by the same attorneys on the same day by the Detroit Institute of Arts (DIA) over Van Gogh's The Diggers. See Complaint, Detroit Institute of Arts v. Ullin, No. 2:06-cv-10333-DPH-MKM (E.D. Mich. Jan. 24, 2006). The DIA case is similarly based on the life of Martha Nathan and the events leading up to the 1938 sale involving both the Gauguin and the Van Gogh. I am unaware of any decision rendered in the case at the time of this writing, but the court was immediately notified of the opinion released in the TMA case. See Notice of Subsequent Authority in Support of Plaintiff and Counter-Defendant's Motion to Dismiss Counterclaims, Detroit Institute of Arts v. Ullin, No. 2:06-cv-10333-DPH-MKM (E.D. Mich. Dec. 29, 2006).

The dispute began when TMA posted the Gauguin on its web site pursuant to the Guidelines promulgated by the Association of American Museums (AAM).23

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *8. For a discussion of the AAM guidelines, see Part III.

The heirs contacted TMA in May 2004 and asserted a claim of ownership to the painting.24

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *8.

After researching the claim, TMA initially rejected it in July 2005.25

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *8.

TMA and the heirs then met for the first time on January 24, 2006.26

Rowland & Associates, “Martha Nathan Heirs React to Lawsuits”: “On Tuesday, Jan 24, 2006, the heirs of Martha Nathan (the “Heirs”) met for the first time with the museum directors of the Toledo Museum of Art (Don Bacigalupi) and the Detroit Institute of Arts (Graham Beal).” Although this appears to be the first meeting personally attended by the heirs, the two sides apparently had a series of meetings over the 18-month period between May 2004 and January 2006. See Detroit Institute of Arts, “Detroit and Toledo Museums Present Research Findings.” “In meetings with Mrs. Nathan's heirs over the past 18 months, the museums have asked the heirs to acknowledge the museums as the paintings' rightful owners. After a final meeting with three heirs and their counsels, the museums have taken legal steps to protect their rightful ownership interests.”

At the end of this meeting, TMA asked them to withdraw their claim of ownership;27 the heirs, however, believed that TMA would be willing to reach a private resolution of the matter based on the Museum guidelines, and expressed their willingness to submit the claim to an independent art commission or arbitrator.28 TMA filed a preemptive lawsuit in federal court29

Jurisdiction was based on diversity of citizenship, as many of the heirs resided overseas and the amount in controversy exceeded $75,000. Toledo Museum of Art v. Ullin, No. 3:06 CV 7031, 2006 U.S. Dist. LEXIS 93627, at *3 (N.D. Ohio Dec. 28, 2006); see 28 U.S.C. § 1332 (2006). The Gauguin is estimated to be worth between $10 million and $15 million at auction. Lane, “Heirs Seek to Avoid Legal Battle over Gauguin Painting.”

that same day of January 24, 2006.30

Bringing the lawsuit caused feelings of resentment among the heirs, because they felt that TMA had unnecessarily aired a private dispute and failed to abide by the principles discussed in Part III. Lane, “Heirs Seek to Avoid Legal Battle over Gauguin Painting.” See Part III.

TMA's complaint requested an order quieting title to the Gauguin and sought a declaration that it was the rightful owner.31

Complaint for an Order Quieting Title to Property Pursuant to 28 U.S.C. § 1655, Declaratory Judgment and Injunctive Relief at 20–21, Toledo Museum of Art v. Ullin, No. 3:06 CV 7031, 2006 U.S. Dist. LEXIS 93627 (N.D. Ohio Dec. 28, 2006) (hereinafter Complaint for an Order Quieting Title).

The heirs responded with three counterclaims, seeking a declaration that they were the owners of the Gauguin, restitution of the painting, and a finding that TMA had converted the painting.32

Defendant's Answer, Affirmative Defenses, and Counterclaims at 23–26, 39–40, Toledo Museum of Art v. Ullin, No. 3:06 CV 7031, 2006 U.S. Dist. LEXIS 93627 (N.D. Ohio Dec. 28, 2006) (hereinafter Counterclaim).

TMA then filed a motion to dismiss the counterclaims as time-barred under Ohio's 4-year statute of limitations.33

Brief in Support of Plaintiff and Counter-Defendant the Toledo Museum of Art's Motion to Dismiss Counterclaims, Toledo Museum of Art v. Ullin, No. 3:06 CV 7031, 2006 U.S. Dist. LEXIS 93627 (N.D. Ohio Dec. 28, 2006) (hereinafter Motion to Dismiss).

Judge Zouhary granted the motion in his opinion dated December 28, 2006.

Martha Nathan was a Jewish woman born in Frankfurt am Main, Germany, into the Dreyfus family, a respected European banking family.34

Motion to Dismiss, 3.

She married Hugo Nathan, a prominent art collector in Frankfurt am Main.35

Motion to Dismiss, 3.

She inherited the Gauguin and other works from her husband upon his death in 1922.36

Motion to Dismiss, 3.

In a codicil to his will, Hugo Nathan presciently provided that Martha Nathan could sell these works of art to meet her needs in light of the economic uncertainties following World War I.37

Motion to Dismiss, 3.

Martha Nathan left Germany for Paris, France, in February 1937 to escape Nazi persecution.38

Counterclaim, ¶109.

She was forced to pay an exit tax39

Counterclaim, ¶108.

and was allowed to leave with only 15,000 reichsmarks; it was alleged that the Nazi regime confiscated the remainder of her bank accounts.40

Counterclaim, ¶110.

In May 1937 the Nazis liquidated and Aryanized the J. Dreyfus & Co. bank in Frankfurt then managed by Willy Dreyfus, Nathan's brother.41

Counterclaim, ¶¶112, 113.

Defendants alleged that at some time after the Nazis came to power, Nathan, her brothers, and her cousin all issued loans to Willy Dreyfus for the purpose of supporting the bank.42

Counterclaim, ¶¶111–12. Nathan individually loaned 520,000 reichsmarks to Dreyfus. Counterclaim, ¶111.

On April 26, 1938, Germany enacted a new law requiring Jews to declare all property with a value more than 5000 reichsmarks.43

Counterclaim, ¶115.

Apparently, as a result of this law, Nathan returned to Germany in May 1938 to sell her marital house.44

Counterclaim, ¶116.

The proceeds of this sale were placed into a blocked account, which was later allegedly confiscated by the Nazis.45

Counterclaim, ¶116.

At this time, and in exchange for allowing her to remove household objects, the Nazis confiscated from Nathan six paintings that were deemed to have national value: a Courbet, two Boehles, a Truebner, a Burger, and a Slevgot.46

Counterclaim, ¶117.

The remaining household objects were shipped to Paris in August 1938 and placed in storage; they were confiscated by the Nazis in 1942.47

Counterclaim, ¶118.

In December 1938, Nathan, then in Switzerland, sold the Gauguin located at the Kunsthalle Basel in Switzerland48

There is disagreement about when the painting arrived in Basel. At some point before the December 1938 transaction, allegedly as early as 1930, Nathan moved the Gauguin and other important artwork to Basel. TMA alleged that Nathan's shipment of the painting to Basel in 1930 was well-documented by her attorney and an attorney for the Städel Art Institute; Complaint for an Order Quieting Title, 4. TMA alleged that, except for a brief exhibition in Frankfurt in the summer of 1931, the painting remained in Basel until the sale in December 1938; Complaint for an Order Quieting Title, 4. The heirs admitted only that the painting was in Basel at “some period of time” prior to December 1938; Counterclaim, ¶¶8(a), (c). Instead, they alleged that the painting continuously remained a part of the Frankfurt am Main collection of Hugo and Martha Nathan. Counterclaim, ¶¶8(a), (c); Rowland & Associates, “Martha Nathan Heirs React to Lawsuits”: “It is currently unknown how long these artworks stayed in Germany after that exhibition, as neither the Heirs nor the Museums have yet been able to uncover further information regarding this important fact.”

to three prominent European art dealers: Georges Wildenstein, Justin Thannhauser, and Alexander Ball.49

Toledo Museum of Art v. Ullin, No. 3:06 CV 7031, 2006 U.S. Dist. LEXIS 93627, at *6 (N.D. Ohio Dec. 28, 2006).

There is disagreement about who initiated the sale, but Nathan authorized a viewing of the painting in Basel on December 4, 1938.50

See Motion to Dismiss, 4; Counterclaim, ¶132; Detroit Institute of Arts, “Detroit and Toledo Museums Present Research Findings.”

Wildenstein and Thannhauser (and possibly Ball) had known Nathan for many years.51

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *6.

Like Nathan, all three Jewish men left Germany to escape Nazi persecution; and similar to Nathan's experience with her brother's bank, the Wildenstein and Thannhauser family art galleries were liquidated by the Nazis in 1938.52

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *6.

They bought the Gauguin for CHF 30,000 (approximately U.S. $6,900) on December 14, 1938.53

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *6.

In May 1939, TMA purchased the Gauguin from Wildenstein & Co. for U.S. $25,000.54

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *7.

TMA has been in possession of it ever since and has displayed it in Ohio and internationally since that time, with Nathan noted as a prior owner.55

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *7.

In August 1939, 1 month before France declared war on Germany, Nathan moved to Switzerland, where she lived until her death in 1958 at the age of 83 years.56

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *7.

During that time, Nathan successfully pursued restitution from the French and German postwar authorities for the German exit tax, the sale of her home for less than fair market value, the loss of the six paintings, and the property stored in Paris.57

Complaint for an Order Quieting Title, 17.

At no time did she seek restitution for the 1938 sale of the Gauguin.58

Motion to Dismiss, 6.

Nathan's brother, Willy Dreyfus, who became the coexecutor of Nathan's estate on her death, also actively pursued compensation for losses regarding the sale of his family's bank in 1938. Four years before his death in 1977, he filed an action in U.S. federal court claiming that he was forced to sell the bank under duress and for below market value; but at no time did he pursue a claim involving the Gauguin.59

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *7–*8; see Dreyfus v. Von Fink, 534 F.2d 24 (2d Cir. 1976), cert denied 429 U.S. 835 (1976). As indicated, it is worth noting that Dreyfus pursued his claims all the way to the U.S. Supreme Court.

Judge Zouhary first found that Ohio's choice of law rules applied, and that under those rules, Ohio's statute of limitations applied.60

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *9.

The court next found that the heirs' underlying substantive counterclaims for restitution and conversion were both “for the recovery of personal property” and therefore governed by Ohio's 4-year statute of limitations.61

Toledo Museum of Art at *11; see Ohio Rev. Code Ann. § 2305.09(B) (2006). The court also noted that TMA's action for declaratory relief was not similarly barred because its underlying substantive action to quiet title is never time barred under Ohio law where the plaintiff is in possession. Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *11.

Under the discovery rule, the statute of limitations begins to accrue when the claimant “discovers or, in the exercise of reasonable care, should have discovered” the injury.62

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *12–*13 (internal quotations and citation omitted). The heirs attempted to argue that their claim for declaratory relief was a threshold issue distinct from their claims for restitution and conversion, and that it would be inequitable to allow TMA to proceed with their claim seeking a declaration of ownership but bar a similar declaratory action by the heirs. Defendant's Brief in Opposition to Plaintiff's Motion to Dismiss at 9–11, Toledo Museum of Art v. Ullin, No. 3:06 CV 7031, 2006 U.S. Dist. LEXIS 93627 (N.D. Ohio Dec. 28, 2006) (hereinafter Response to Motion to Dismiss). The court disagreed, finding the heirs underlying action to be one for recovery of the painting while TMA's underlying action was one to quiet title. Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *10–*11.

Applying this rule the court's first holding was that under any set of circumstances, the heirs' claim was time-barred.63

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *17.

The court found, based on Nathan's own knowledge of the circumstances surrounding the sale and her active pursuit of restitution immediately following the war for other property lost as a result of Nazi persecution, that Nathan should have discovered any claim either at the time of the sale or when the painting was sold to TMA in 1939.64

Toledo Museum of Art, at *13–*17. The court cited the recent case of Adler v. Taylor, No. CV 04-8472-RGK, 2005 U.S. Dist. LEXIS 5862 (C.D. Cal. Feb. 2, 2005), to support this application of the discovery rule. Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *15–*16. For a discussion of Adler, see notes 85–88 and accompanying text. For other judicial applications of the discovery rule, see Autocephalous Greek-Orthodox Church v. Goldberg & Feldeman Fine Arts, Inc., 917 F.2d 278 (7th Cir. 1990) and Erizoty v. Rizik, No. 93-6215, 1995 U.S. Dist. LEXIS 2096 (E.D. Pa. Feb. 23, 1995).

The court also found that even if Nathan should not have discovered a claim within her lifetime, the heirs should have discovered the claim upon her death when an accounting of her estate was made and additional Holocaust-related claims were made by Willy Dreyfus.65

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *15–*17.

Lastly, and at the very latest, public debate surrounding Nazi-era assets in 1998, cited by the heirs in their own court filings, should have led them to discover any possible claim regarding the painting at that time.66

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *15–*17.

The court therefore held that under any set of circumstances, the heirs' counterclaims were barred by Ohio's statute of limitations.67

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *17.

The heirs' primary procedural argument was that TMA intentionally relinquished its statute of limitations defense by inviting people to submit claims when it posted the Gauguin on its web site pursuant to the AAM guidelines.68

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *17*18.

The heirs contended that the statute of limitations should have started to run either in July 2005 when TMA first rejected their claim or in May 2004 when they first contacted TMA about the painting.69

Response to Motion to Dismiss, 13. The heirs also made the argument that the discovery rule was inapplicable and that the demand and refusal rule applied instead; Response to Motion to Dismiss, 12–13. Under the demand and refusal rule the statute of limitations begins to accrue in an action against a bona fide purchaser after demand is made and the demand is refused. See DeWeerth v. Baldinger, 836 F.2d 103, 106 (2d. Cir. 1987); Kunstsammlungen Zu Weimar v. Elicofon, 678 F.2d 1150, 1161 (2d. Cir. 1982).

The court rejected this argument, stating that the AAM Guidelines “were not intended to create legal obligations or mandatory rules but were rather intended to facilitate the ability of museums to act ethically and legally as stewards through serious efforts on a case by case basis.”70

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *19 (internal quotation and citations omitted).

Therefore, the court's second holding was that TMA did not voluntarily and intentionally relinquish its statute of limitations defense merely by conducting provenance research and posting the results online.71

Toledo Museum of Art, 2006 U.S. Dist. LEXIS 93627, at *19–*20.

b. Paul von Mendelssohn-Bartholdy. At issue in Schoeps v. The Andrew Lloyd Webber Art Foundation was the ownership of a Pablo Picasso painting, The Absinthe Drinker (Portrait de Angel Fernández de Soto). Julius Schoeps filed a complaint in federal court on November 3, 2006, seeking to enjoin a highly anticipated Christie's auction that was scheduled to take place 2 days later.72

Complaint, Schoeps v. Andrew Lloyd Webber Art Found., No. 06 CV 12934 (S.D.N.Y. Nov. 3, 2006).

Preparations had been taken to auction the Picasso, owned by the defendant, the Andrew Lloyd Webber Foundation.73

The Picasso was expected to sell at the auction for $40 to $60 million. Hughes Hubbard and Reed, “Judge Rules for Christie's.” http://www.hugheshubbard.com/news/news_detail.asp?NewsID=1616 (accessed January 25, 2007). Andrew Lloyd Webber acquired the Picasso at a Sotheby's auction in 1995 for $29 million, which he then donated to his charitable organization. Christie's Inc.'s Memorandum of Law in Opposition to Plaintiff's Application for Temporary Restraining Order and Preliminary Injunction at 2, 6, Schoeps v. Andrew Lloyd Webber Art Found., No. 06 CV 12934 (S.D.N.Y. Nov. 6, 2006) (hereinafter Christie's Memorandum of Law).

As an heir of Paul von Mendelssohn-Bartholdy (Mendelssohn), Schoeps alleged that he was the true owner of the Picasso because it was lost “in a forced sale as a proximate and intended consequence of Nazi persecution.”74

Complaint, 2.

Schoeps' complaint was ultimately dismissed by Judge Rakoff for lack of subject matter jurisdiction,75

Hamblett, “Court Declines to Block Christie's.” Schoeps failed to convince the court to imply a federal cause of action from congressional statutes and a long-standing U.S. policy favoring restitution to victims of Nazi persecution. Hamblett, “Court Declines to Block Christie's.” Unlike the court in Adler, discussed in note 88, which had federal jurisdiction based on diversity of citizenship, Judge Rakoff refused to exercise supplemental jurisdiction over Schoeps' state law claims and dismissed those claims without prejudice. See Schoeps v. Andrew Lloyd Webber Art Found., No. 06 Civ. 12934 (S.D.N.Y. Dec. 7, 2006). Judge Rakoff was “skeptical about the last-minute filing of the complaint and Schoeps' claim that he was only seeking the return of the painting and not money”; Hamblett, “Court Declines to Block Christie's.” Despite the favorable ruling, Christie's voluntarily withdrew the Picasso from the auction after claiming that a cloud of doubt had been recklessly placed on the painting by the prospect of continuing litigation. Hartocollis, “Despite Court Ruling.”

but Schoeps has refiled suit in New York state court, seeking restitution or $60 million in damages from the Foundation.76

Hartocollis, “Despite Court Ruling.” I am unaware of the status or resolution of the state court action.

Mendelssohn was born into a wealthy Jewish family, which included both Felix and Moses Mendelssohn.77

Complaint, 3.

Mendelssohn co-owned and managed one of the largest private banks in Germany, Mendelssohn & Co., which his family established in 1795.78

Complaint, 3

Mendelssohn was very wealthy; and in addition to his impressive art collection, he owned a mansion in downtown Berlin and a country estate with a large staff that he frequented in the summers.79

Complaint, 4.

He occupied numerous prestigious positions and memberships, including acting as the Royal Consul General for Denmark.80

Complaint, 4.

According to the complaint, between January 1933 and his death from a heart attack in May 1935, Mendelssohn was subject to Nazi persecution in the following ways: He suffered significant banking losses in connection with Mendelssohn & Co, including the Aryanization of a successful private bank where Mendelssohn & Co. was a shareholder; he received Nazi threats to summarily extinguish Mendelssohn & Co.; he suffered a precipitous decline in net worth to less than one tenth of what it was before 1933; he suffered the loss of prestigious positions in business, including memberships on the boards of directors of the Central Association of the German Bank and Bankers' Profession and a German annuity insurance institution; he fled his Berlin mansion; Aryan employees resigned; and he surrendered extensive land from his country estate to the Nazi regime's Cultural Office.81

Complaint, 5, 15–16. By 1938, Mendelssohn & Co. had been Aryanized and the Berlin mansion had been leveled. Complaint, 17.

The circumstances surrounding the sale of the Picasso are disputed. Schoeps alleged that, although Mendelssohn had never sold any of his artwork before, in October 1934 he sold the Picasso (and four other Picasso works) to Berlin art dealer Justin Thannhauser.82

Complaint, 4–6.

Christie's asserted that Mendelssohn bequeathed his art collection to his non-Jewish wife Elsa, she inherited the Picasso upon Mendelssohn's death in May 1935, and she then sold it to Thannhauser in August 1935.83

Christie's Memorandum of Law, 5, 10.

Christie's argued that there was no evidence of theft or suspicion that Elsa was coerced or given an unfair price for the painting.84

Christie's Memorandum of Law, 10.

c. Margarete Mauthner. At issue in the case of Adler v. Taylor85

Adler v. Taylor, No. CV 04-8472-RGK, 2005 U.S. Dist. LEXIS 5862 (C.D. Cal. Feb. 2, 2005). This case has been alternatively styled Orkin v. Taylor. See Orkin v. Taylor, CV 04-8472, 2005 U.S. Dist. LEXIS 43321 (C.D. Cal. Apr. 20, 2005). Mauthner's heirs are Andrew Orkin, F. Mark Orkin, Sarah-Rose Josepha Adler, and A. Heidrich Zille. I bear no relation to these heirs.

was the ownership of a Van Gogh painting, View of the Asylum and Chapel at Saint-Remy.86

Adler, 2005 U.S. Dist. LEXIS 5862, at *1.

Plaintiffs were the heirs and descendants of Margarete Mauthner, a private collector who owned the Van Gogh through the 1920s and 1930s. Mauthner fled from Nazi persecution with her family in 1939 for South Africa where she died in 1947 at the age of 84 years. The facts surrounding the confiscation of the Van Gogh were not described in the court's opinion; Judge Klausner merely stated, “The painting was lost to Nazi persecution.”87

Adler, 2005 U.S. Dist. LEXIS 5862, at *2.

As in Toledo Museum of Art, Mauthner's heirs ultimately lost this case on statute of limitations grounds, the appeal of which is currently pending in the Ninth Circuit Court of Appeals.88

This case is notable in its own right. The defendant was two-time Oscar winner Elizabeth Taylor who purchased the Van Gogh at a Sotheby's auction in 1963. Adler, 2005 U.S. Dist. LEXIS 5862, at *2. Plaintiffs alleged that Taylor failed to heed the warning signs in provenance information provided to her by Sotheby's that should have alerted her to the Van Gogh's presence in Nazi Germany. Adler, 2005 U.S. Dist. LEXIS 5862, at *3. The court held that California's 3-year statute of limitations began to run when Taylor purchased the painting because her purchase was easily discoverable; this barred the plaintiffs' state law claims for conversion, replevin, and constructive trust. Adler, 2005 U.S. Dist. LEXIS 5862, at *10–*13; see Cal. Civ. Proc. Code § 338(c) (2006).

An interesting wrinkle in the case was a California law passed in 2002 that suspends the application of statutes of limitations until December 31, 2010, for all suits brought by Holocaust survivors or their heirs to recover Holocaust-era artwork from museums or galleries. See Cal. Civ. Proc. Code § 354.3 (2006). Because Taylor was not a museum or gallery, however, the court found this law to be inapplicable. Adler, 2005 U.S. Dist. LEXIS 5862, at *10–*11; see also Bennigson v. Alsdorf, No. B168200, 2004 WL 803616, at *7 (Cal. Ct. App. Apr. 15, 2004). The California legislature explained its decision not to extend the law's application to defendants who were private individuals. See A.B. 1758, 2001–2002 Cal. Assemb., Reg. Sess. (2002): “However, private collectors may not be as able as museums and galleries to research the history of the pieces they own, and might therefore find it more difficult to defend against a suit, which could be revived under this bill. A private collector from whom a piece of art was recovered under this bill could suffer a significant financial loss (of the money paid for the artwork), which he or she could only recover through a claim against the person or gallery from whom the collector had acquired the work. Consideration of the equities involved suggest that the extension of the statute of limitations to apply only in those cases against museums and galleries is appropriate.”

The court also rejected plaintiffs' attempts to imply federal causes of action from federal statutes passed in 1998 and the findings and declarations of the California legislature. Adler, 2005 U.S. Dist. LEXIS 5862, at *14–*17; see Holocaust Victims Redress Act, Pub. L. No. 105–158, 112 Stat. 15 (1998); Nazi War Crimes Disclosure Act, Pub. L. No. 105–246, 112 Stat. 1859 (1998); U.S. Holocaust Assets Commission Act of 1998, Pub. L. No. 105–186, 112 Stat. 611.

For present purposes, however, the more interesting and related facts were uncovered during an investigation conducted by HCPO on behalf of the Mauthner heirs involving another Van Gogh work, a drawing entitled View of Saintes-Maries. The facts are set out in a letter dated April 19, 2006, from the HCPO to the Sammlung Oskar Reinhart Collection, Am Römerholz, in Winterthur, Switzerland, where the work resides.89

Correspondence from Sherri North Cohen to Dr. Mariantonia Reinhard-Felice, Chief Curator, Sammlung Oskar Reinhart ‘Am’ Römerholz.

From 1921 to 1938, Mauthner lived in Berlin with her daughter Edith Orgler, her son-in-law, Dr. Adolf Orgler, and her two grandchildren.90

Because of Mauthner's age and Edith's poor health, Dr. Orgler was the only breadwinner for the family during this time, and Mauthner lost most of her inherited wealth in the 1920s because of inflation and poor investments.91 In 1926, Oskar Reinhart offered to buy both the View of Saint-Maries and another Van Gogh, Garden with Flowers.92 After negotiations, Mauthner sold only Garden with Flowers to Reinhart but not View of Saint-Maries.93

According to HCPO, the Mauthner/Orgler family was subject to intense Nazi persecution. In addition to the loss of their dignity and property, Dr. Orgler, the sole breadwinner, was forced to resign from his senior medical position.94

These effects of Nazi persecution led to the following situation:

In order to survive and finance the Mauthner/Orgler family's flight from Germany—the planning of which was already underway—they needed substantial cash. As a result, Mrs. Mauthner was forced to sell important artworks in her collection. Eventually the family was forced to sell their home, as well as a significant part of their furnishings and household goods, at prices well below market value.95

HCPO describes the circumstances surrounding Mauthner's 1933 sale of View of Saint-Maries to Reinhart:

… Mauthner had little to no bargaining power vis-à-vis Mr. Reinhart. In fact, correspondence from October/November 1933 establishes that Mrs. Mauthner desperately needed money and she needed it quickly…. (The [art] market was, of course, influenced by many other persecuted Jewish collectors in Nazi Germany who were also trying to sell their artworks to survive or flee)…. Because of the dire urgency of her situation, Mrs. Mauthner agreed to accept immediate payment of the lower purchase price of RM 8,000…. Despite Mrs. Mauthner's obvious financial and political difficulties, Mr. Reinhart forced her to accept payment in either regular or registered German reichsmarks, which traded abroad at a considerable discount.96

HCPO concluded that it was “apparent that Mrs. Mauthner's sale of the Drawing to Mr. Reinhart in Switzerland was a ‘flight asset,’ i.e., a cultural asset that was sold because of the extreme situation of the time to finance her family's day-to-day survival and imminent emigration from Nazi Germany.”97

Cohen to Reinhard-Felice, 5. HCPO further buttressed this conclusion on the determination by the Independent Commission of Experts of Switzerland in 2001 that Reinhart's acquisition was “morally questionable.” Cohen to Reinhard-Felice, 2.

III. MUSEUM GUIDELINES

The AAM Guidelines that prompted TMA to post the Gauguin online were the last (and most detailed) in a handful of guidelines, reports, and principles released in the late 1990s to deal with the problem of Nazi-looted art. These documents came in response to several studies and books published in the mid 1990s that began to investigate and reconstruct the history of the Nazi's massive looting campaign.98

See Petropoulos, “Art Looting During the Third Reich,” 441: “Put simply, the Nazis plundered so many objects over such a large geographical area that it requires a collaborative effort to reconstruct this history. The project of determining what was plundered and what subsequently happened to these objects must be a team effort. And in fact, this is the way the work has proceeded. Many scholars have added pieces to the puzzle, and we re just now starting to assemble a complete picture.” See Nicholas, The Rape of Europa; Feliciano, The Lost Museum.

As demonstrated in the following text, however, it is unclear what categories of restitution claims are governed by these guidelines.

On June 4, 1998, the Association of Art Museum Directors (AAMD) issued a Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933–1945).99

Association of American Art Directors, “Report of the AAMD Task Force.” These guidelines came in response to hearings held by the House Committee on Banking and Financial Services in February 1998. Rosenbaum, “Will Museums in U.S. Purge Nazi-Tainted Art?”: “One thing the AAMD did accomplish in issuing its guidelines was to get Congress off the case. The directors, some of whom testified last February at hearings held on the problems of looted art by the House Banking and Financial Services Committee, had feared that Congressional action could prove ‘counterproductive, rather than helpful.’ …” See House Committee on Banking and Financial Services, The Restitution of Art Objects Seized by the Nazis from Holocaust Victims and Insurance Claims of Certain Holocaust Victims and Their Heirs., 105th Cong., 2nd sess., 1998. The AAMD also released another document in October 2001 to help “ensure continued transparency in the acquisition and presentation of their collections, to facilitate the identification of works that were stolen by the Nazis and not restituted, and to ensure prompt and sensitive responses to claimants.” Association of American Art Directors, “Art Museums and the Identification and Restitution of Works Stolen by the Nazis” (emphasis added).

Focusing only on “unlawful confiscation,” the report encourages museums to conduct provenance research of their collections, create new databases to facilitate access to museum records, and resolve legitimate claims in an equitable and agreeable manner.100

Association of American Art Directors, “Report of the AAMD Task Force.”

The report does not discuss what unlawful confiscation means or whether coerced sales—let alone private sales made to survive the Holocaust—are included in this category. By using the term unlawful confiscation, however, it does not appear to include any type of coerced sale.

On December 3, 1998, the 44 governments participating in the Washington Conference on Holocaust-Era Assets adopted a set of principles to deal with “Nazi-Confiscated” Art.101

These principles included identifying confiscated art, making accessible relevant records and archives, establishing a central registry, encouraging heirs to come forward with their claims, and achieving a just and fair result when legitimate claims are brought.102 The principles are similarly limited to “art that had been confiscated by the Nazis,”103 and do not address coerced sales.

On January 14, 1999, the International Council of Museums (ICOM) released “Recommendations Concerning the Return of Works of Art Belonging to Jewish Owners.”104

These recommendations similarly encourage the investigation and identification of works with dubious provenance, the creation of procedures for making such information accessible, and the adoption of national legislation to facilitate the return of objects.105 The recommendations are explicitly concerned with objects “once belonging to Jewish owners and stolen, looted, or removed forcibly.”106 Again, no mention is made of coerced sales.

In November 1999, the AAM adopted “Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era.”107

American Association of Museums, “Guidelines.”

Citing the 1998 AAMD Report, the Washington Conference Principles, and the ICOM Recommendations, the AAM guidelines lay out in the greater detail the similar goals of increasing provenance research, providing greater access to the public, and achieving equitable and appropriate resolution of claims.108

American Association of Museums, “Guidelines.”

The guidelines, however, speak in terms of “unlawful appropriation,” the meaning of which is briefly explained:

These guidelines are intended to assist museums in addressing issues relating to objects that may have been unlawfully appropriated during the Nazi era (1933–1945) as a result of actions in furtherance of the Holocaust or that were taken by the Nazis or their collaborators. For the purposes of these guidelines, objects that were acquired through theft, confiscation, coercive transfer, or other methods of wrongful expropriation may be considered to have been unlawfully appropriated, depending on the specific circumstances.109

American Association of Museums, “Guidelines,” General Principles.

Unlike the other policies, this one sentence appears to include coerced sales, but it is unclear whether this encompasses private sales made as a direct (but not proximate) result of Nazi persecution. Nor is there any attempt to elaborate on what constitutes “wrongful expropriation.” It is impossible for the AAM guidelines to help museums “achieve excellence in ethical museum practice”110

American Association of Museums, “Guidelines,” Introduction.

without first clarifying the type of restitution claims to which the guidelines will apply.

IV. EXPANDING THE SCOPE OF THE GUIDELINES TO GOVERN PRIVATE SALES MADE AS A DIRECT RESULT OF NAZI PERSECUTION

The common thread running through the Nathan, Mauthner, and Mendelssohn cases is the absence of any direct involvement by the Nazi regime; there was no confiscation and there was no coerced sale in which the Nazis participated. Instead, the heirs in these three cases all sought restitution on the theory that, because of the effects of Nazi persecution, their ancestors were forced to sell their art to flee or otherwise survive the Holocaust. The ethical issue raised by these cases is how museums should handle restitution claims based on sales made as a direct (but not proximate) result of Nazi persecution.

TMA took the position in its court papers that Nazi involvement, whether confiscation or participation in a coerced sale, was required for a restitution claim to trigger TMA's ethical obligations: “In contrast to other World War II stolen art claims that have been reviewed and resolved under the Museum Guidelines, however, Defendants' claim does not result from Nazi confiscation, looting, or a ‘loss’ attributable to Nazi persecution.”111

Complaint for an Order Quieting Title, ¶77.

Curiously, TMA appeared to qualify what it meant by “loss attributable to Nazi persecution” in the following way:

The [heirs] admit that the Painting was not confiscated or looted by the Nazis, and do not allege that the sale was at the direction of the Nazi regime, nor that any of the proceeds of the sale benefited the Nazi regime or its collaborators. Rather, the sale occurred outside Germany, by and between private individuals.112

Motion to Dismiss, 4 (internal quotation and citations omitted) (emphasis added).

Therefore, according to TMA, direct participation or enrichment by the Nazis was required to trigger their ethical obligations under the guidelines.

Although the case was not decided on the merits, Judge Zouhary appeared to agree (almost verbatim) with TMA's suggestion that direct Nazi involvement was necessary to state an ethically meritorious claim: “In short, this sale occurred outside Germany by and between private individuals who were familiar with each other. The Painting was not confiscated or looted by the Nazis; the sale was not at the direction of, nor did the proceeds benefit, the Nazi regime.”113

Toledo Museum of Art v. Ullin, No. 3:06 CV 7031, 2006 U.S. Dist. LEXIS 93627, at *7 (N.D. Ohio Dec. 28, 2006).

Not surprisingly, Christie's took a similar position in Schoeps: “In the instance case, there is no evidence or allegation that the Picasso painting was lost or stolen, much less that it fell into the hands of the Nazis. Rather, the evidence shows that was sold to a reputable art dealer by Paul von Mendelssohn-Bartholdy's widow.”114

Christie's Memorandum of Law, 17 (emphasis added); see also Hartocollis, “Despite Court Ruling”: “After an international court battle, the Klimt paintings were found to have been stolen by the Nazis and are now being sold by the heirs to whom they were restored…. Christie's insisted, however, that the Picasso painting was in a different category and threatened to seek damages against Julius H. Schoeps, who is claiming the painting, for disrupting the sale and spoiling the ‘charitable purposes’ of the foundation that was selling the painting” (emphasis added).

Nonetheless, postwar restitution policies, prior disputes, and relevant history, all discussed in the following text, cast doubt on the suggestion that direct involvement by the Nazis should be required to trigger a museum's ethical obligations. Instead, these sources suggest that the ethical guidelines should govern restitution claims based on private sales made as a direct (but not proximate) result of Nazi persecution, despite the absence of any direct Nazi involvement in the sale or loss of art.

In 1943, the Allies issued the Inter-Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation and Control, known as the Declaration of London, which provided the following:

Accordingly, the Governments … reserve all their rights to declare invalid any transfers of, or dealings with, property, rights and interests of any description whatsoever which are, or have been, situated in the territories which have come under the occupation or control, direct or indirect of the Governments with which they are at war, or which belong, or have belonged to persons (including juridical persons) resident in such territories. This warning applies whether such transfers or dealings have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.115

Inter-Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation and Control (emphasis added); see also European Parliament, “Report on a Legal Framework”: “[The European Parliament w]elcomes the recognition among various governments that the unique problems associated with cultural goods (i.e., public or private property considered as constituting an artistic creation or cultural property), which were plundered in wartime through acts of violence, confiscation, or by apparently legal transactions or auctions need to be addressed” (emphasis added).

This principle embodied in the Declaration of London was reiterated in Military Government Law 59, promulgated in November 1947, which was designed to effect the speedy restitution of property to persons who were wrongfully deprived of such property between 1933 and 1945 for reasons of race, religion, nationality, ideology, or political opposition to National Socialism.116

Military Government Law No. 59: Restitution of Identifiable Property, pt. I, art. 1, § 1, reprinted in 42 Am. J. Int'l L. 11 (1948). This policy of the United States was reiterated in a state department press release number 276 in 1949. Department of State, “Jurisdiction of United States Courts Re Suits for Identifiable Property Involved in Nazi Forced Transfers,” news release, April 27, 1949 (on file with the state department).

Article III created the presumption that the following transfers were “acts of confiscation”: “any transfer or relinquishment of property made during a period of persecution by any person who was directly exposed to persecutory measures on [religious grounds],” and “any transfer or relinquishment of property made by a person who belonged to a class of persons which … was to be eliminated in its entirety from the cultural and economic life of Germany.”117

Military Government Law No. 59, pt. III, art. 3, §§ 1(a), (b), reprinted in 42 Am. J. Int'l L. at 12. This presumption could be rebutted by a showing that the transferor paid a fair purchase price but that did not rebut the presumption that the transferor was denied the free right of disposal on religious grounds (Pt. III, art. 3, § 2). However, transfers by any person in a class that was to be eliminated in its entirety was still considered an act of confiscation unless the transaction would have taken place even in the absence of National Socialism. This was determined by looking at whether the transferor offered to sell the property and received a fair purchase price, but neither of these factors was dispositive. Pt. III, art. 4, §§ 1, 2, reprinted in 42 Am. J. Int'l L. at 13.

Two Reports issued by England's Spoliation Advisory Panel118

The Spoliation Advisory Panel is part of the United Kingdom's Department of Culture, Media and Sport and “resolves claims from people, or their heirs, who lost property during the Nazi era which is now held in U.K. national galleries.” Department for Culture Media and Sport, “Spoliation Advisory Panel.”

expressly relied on the Declaration of London and Military Government Law 59 to find in favor of claimants presenting restitution claims based on a private sale made as a direct (but not proximate) result of Nazi persecution.

The first report issued by the Spoliation Advisory Panel in January 2001 involved a claim to a Jan Griffier the Elder painting, A View of Hampton Court Palace housed at the Tate Gallery.119

The claimant was the son of the previous owner who escaped Nazi Germany and successfully fled to Belgium where she previously sent her paintings.120 “After the German occupation of Belgium in 1940, she remained in hiding and sold the paintings … one by one, to finance her basic necessities. In the case of the sale of the Griffier, she told the claimant that she only received enough ‘for an apple and an egg.’ ”121 Despite finding that the claimant had no legal title to the Griffier,122 the panel, citing the London Declaration, concluded the following:

As a Jew struggling to survive in a hostile environment, and faced with the threat of starvation, she had no alternative but to dispose of her valuable possessions, including the picture, in order to survive, and she had perforce to sell it at an undervalue…. [We are] persuaded by the moral strength of her case.123

The panel awarded the claimant £125,000 and instructed the Tate Gallery to publicly display the provenance alongside the painting with special reference to the claimant's family.124

Another report by the Spoliation Advisory Panel issued in November 2004 involved claims made by the heirs of five former Jewish owners of an art gallery in Munich to a Jean-Baptiste-Siméon Chardin painting, Still Life, located in the Burrell Collection of the Glasgow City Council.125

The claimants alleged the following:

The liquidation of the gallery's entire stock (including the painting) at the auction was forced on them in order to satisfy an extortionate tax demand, which they had to pay before they would be free to emigrate from Germany. They contend that this unjust demand was engineered by a newly appointed tax officer with Nazi sympathies who took over their affairs from the regular tax office which had previously handled their account.126

After reviewing declarations given by four family members in 1954 and two independent witnesses in 1948 and 1953, the panel

concluded that the [gallery owners were] confronted with an extortionate tax demand for 1935, and that the clearance sale was a direct consequence. This finding, reinforced by the Allied Law of Restitution [Military Law 59] and the London Declaration, is sufficient to establish a strong moral case in claimants' favour.127

Despite the fact that the price paid to the gallery owners at auction was “more than generous,”128

the panel determined that based on the “powerful, and to our minds morally preponderant, consideration that those who lost possession of their property as a result of Nazi oppression should be entitled to its return.”129

Another interesting dispute supporting the proposition that museums have the ethical obligation to review claims based on sales made as a direct consequence of Nazi persecution was the settlement in October 2000 between the Museum of Fine Arts in Boston and the heirs of Federico Gentili di Giuseppe over a Corrado Giaquinto painting, The Adoration of the Magi.130

Museum of Fine Arts, “Museum of Fine Arts, Boston Reaches Agreement”; see Urice, “Recent Cases in the United States”: “The settlement between the heirs and the museum recognize[d] the family's ownership of the painting, for which the museum paid the family an undisclosed amount. The MFA is the fourth major museum to return or acknowledge ownership of works to di Giuseppe's heirs,” 100–101.

Giuseppe was a Jewish businessman who died in Paris in 1940 from natural causes, leaving his estate to his children.131 With the fall of France to Hitler that year, his family fled the country.132 However, German law forbade the return of the art to those who had left occupied territory, so his family was unable to assert a claim.133 A surrogate administrator was appointed to manage the family's affairs and the art collection, including the Giaquinto, was auctioned in Paris in 1941.134 Giuseppe's heirs challenged the validity of this auction in 1997 and the Court of Appeals of Paris agreed in a June 1999 decision, nullifying the sale based on the fact that the family, because of Nazi persecution, was prevented from attending the administration of the estate.135

By analogy, the Paris court's decision may be read to support the legitimacy of restitution claims based on private sales made as a direct (but not proximate) result of Nazi persecution. The Nazi regime in France did temporarily possess the painting, but they did not confiscate it, because it was auctioned off for purposes of administering an estate. The key analogy is that, although Giuseppe did not sell the painting to escape or survive persecution, the painting was indeed lost as a direct result of the Nazi persecution that forced his heirs to flee the country, thus preventing them from claiming the estate.

The Dutch government has also taken an expansive view on the scope of coerced sales during the Nazi era. In 2004, the Dutch government adopted the recommendations of the Ekkart Committee, which was established in 1999 to study works of art confiscated or acquired by German occupying forces that were brought back under the control of the Dutch state after the war.136

Netherlands Embassy, Cultural Objects and the Second World War—Applications for restitution, “The NK Collection and the Ekkart Committee.”

Among the recommendations adopted by the Dutch government were those issued by the Ekkart Committee in April 2001.137 The Committee's third recommendation stated the following:

Sales of works of art by Jewish private persons in the Netherlands from 10 May 1940 onwards [should] be treated as forced sales, unless there is express evidence to the contrary. The same principle should be applied in respect of sales by Jewish persons in Germany and Austria from 1933 and 1938 onwards, respectively.138

The committee cited a 1952 decision by the Council for the Restoration of Property Rights for the proposition that “even though the buyers of the works of art may not have used any direct coercion, the special circumstances might nevertheless warrant the plea of forced sale.”139

The committee therefore recognized that a sale was still coerced even if the coercion was divorced from or preceded the actual sale.

This recognition illustrates a critical point: Despite suggestions to the contrary by TMA, Judge Zouhary, and Christie's, it is ethically difficult to distinguish between claims based on sales in which the Nazis participated and claims based on sales made as a direct (but not proximate) result of Nazi persecution. Both sales are coerced in the sense that Nazi persecution was the predominant cause of the loss of the art.140

See note 2; Part V.

The only difference is temporal: In the former case, the coerced sale occurred contemporaneously with the persecution; in the latter case, the persecution was a condition precedent to a subsequent sale to a private party. The result is that if the ethical guidelines govern coerced sales in general, which I submit that they must, the guidelines should apply equally to both subcategories of coerced sales.

Mrs. Mauthner's heirs take the next logical step, arguing that sales made as a direct (but not proximate result) of persecution should also be treated in the same manner as claims based on confiscation:

It would be enough for victims (or their relatives) to prove that they owned the work in question and that it was lost as a direct consequence of the Nazis' official policy of persecuting Jews and dispossessing them of their finances and assets. So, for example, if a family whose breadwinner had lost his job because he was Jewish had been forced to sell a painting in order to have money to pay the rent, that work was just as much a victim of Nazi policy as if it had been looted in the traditional way.141

Berlins, “Elizabeth Taylor Accused.” (emphasis added).

I submit that this statement is correct for the following reason: Claims based on confiscation and coerced sales (of both types) are united by the fact that Nazi persecution, although different in sequence and form, acts as the predominant cause of the loss of the art. The core inquiry for museums therefore should turn not on the manner in which the art was lost, or whether the Nazi regime was enriched (as TMA and Christie's suggest); rather, it should turn on whether the loss was a direct result of Nazi persecution.

This hardly seems like a groundbreaking suggestion, because it cannot be doubted that a primary motivating factor contributing to the creation of the ethical policies described in Part III was the recognition of the unique and horrific tragedies of the Holocaust.142

See American Association of Museums, “Guidelines,” Introduction: “AAM recognizes that the atrocities of the Nazi era demand that it specifically address this topic in an effort to guide American museums as they strive to achieve excellence in ethical museum practice”. Association of American Art Directors, “Report of the AAMD Task Force,” I.A: “AAMD recognizes and deplores the unlawful confiscation of art that constituted one of the many horrors of the Holocaust and World War II.” On this point an interesting comparison can be made with respect to the atrocities committed against the Native Americans and Congress' enactment of Native American Graves Protection and Repatriation Act (NAGPRA) in 1990, which establishes a mechanism for the repatriation of sacred funerary remains and objects. See Native American Graves Protection and Repatriation Act, Pub. L. No. 101–601, 104 Stat. 3048 (1990) (codified at 25 U.S.C. §§ 3001–3013 [2006]).

Refusing to review claims based on sales made as a direct result of persecution in accordance with ethical standards leads to the result that museums will honor claims arising only from Nazi looting and not those arising from general persecution policies. By limiting their conception of coercion in this manner, museums convey the message that they are ethically bound to remedy the effects of Nazi looting but not Nazi persecution. The critical flaw with this position is that separating out the Nazi looting campaign from general policies of Nazi persecution is inconsistent with the historical reality of how the Nazi regime operated:

The Nazis used art instrumentally as a part of their larger political and ideological project. Their policies with respect to art are inextricably linked to efforts to seize power within Germany, to conquer the European continent, and to execute their genocidal program…. In short, the Nazis' cultural policies—and specifically their efforts to loot artworks—were inextricably bound with the war and Holocaust, and this gives the project of restitution special urgency.143

Petropoulos, “Art Looting During the Third Reich,” 443–44. See Falconer, “When Honor Will not Suffice,” 395–96: “The Nazi quest for the artistic treasures of Europe was thus rooted in the same pathology of domination and extermination underlying the Holocaust itself. In both the art world and the human race, Hitler essentially aimed to ‘purify’ all he deemed ‘tainted’ while usurping all that was desirable.” Pollock, “Out of the Night and Fog,” 196: “Yet these takings were not solely in conjunction with the war effort, as racial and cultural purity were also primary goals of Nazi ideology.” See also Herzog, “Handouts From Hitler”: “A majority of Germans were not seduced or scared by the Nazis. On the contrary, their loyalty to the regime was bought and paid for—quite literally so…. ‘Hitler's Beneficiaries’ argues that nothing more than an unremarkable pursuit of self-interest led most Germans to pledge allegiance to the Nazi regime…. [It] offers stark proof that the murder and the theft were in many cases integrally linked.”

Because the looting campaign and general policies of persecution were so inextricably linked, it would therefore be artificial for museums to ethically distinguish claims based on looting from claims based on private sales made as a direct consequence of Nazi persecution.

A concrete example further illustrates the problem with ethically reviewing claims based on confiscation but not claims based on sales made as a direct result of persecution. Imagine that a Jewish family sold a painting to obtain flight capital to escape from Nazi persecution. A restitution claim to this painting would not fall within the scope of the current ethical guidelines. A claim to that same painting would fall within the guidelines, however, if the family was able to flee without selling it, and instead was forced to leave it behind where it was then confiscated by the Nazis. Whether the ethical obligations of a museum are triggered would depend not on the existence or degree of Nazi persecution but rather on the fortuitous circumstances surrounding the family's emigration.

V. CONCLUSION

The key contribution I wish to make here is that the ethical guidelines should be expanded to govern restitution claims based on all sales that occurred as a direct result of Nazi persecution. Two final points are worthy of emphasis.

First, what does it mean for a restitution claim to be based on a sale made as a direct consequence of Nazi persecution? Unfortunately, there is no way to set out a precise definition of this standard, but I propose that the facts of the Nathan, Mendelssohn, and Mauthner cases provide an excellent starting point from which one can analogize the particular facts of subsequent cases.

In any event, it is worth attempting to clarify this standard. As I mentioned at the outset, the key inquiry should be whether the effects of Nazi persecution acted as the predominant cause of the loss of the art. This standard is narrower than a but for standard where a claimant could argue that, but for the persecution (and even more generally, but for the Holocaust), the sale would not have been made; instead, it requires a demonstrable and traceable link between the particular acts and effects of Nazi persecution and the victim's sale. Although there is an inherent degree of speculation in such an inquiry, I believe it is manageable because it ultimately turns on relatively objective and ascertainable factual criteria, such as the degree and manner in which the claimant's ancestors were subject to Nazi persecution; the family's financial status at the time of the sale; whether they had sold artwork in the past; the time, place, and circumstances surrounding the sale, and so forth. This prevents any seller of art during the Holocaust, even a member of a persecuted class, to trigger the application of a museum's ethical obligations without first demonstrating that particular acts of Nazi persecution directly caused the sale. For example, a Jewish victim of economic persecution who successfully fled Nazi Germany, subsequently resided safely with extremely wealthy relatives in a neutral country, and then sold valuable artwork years later could not satisfy the required causal link. Although but for Nazi persecution, the victim might not have ever fled the country and therefore made the sale, the economic effects of the persecution were clearly not the direct or predominant cause of the sale.

One interesting case tests the flexibility of this standard. The granddaughter of Christian banker Franz Koenigs filed a claim with the Dutch government for restitution of 47 paintings and 300 drawings worth up to £300 million.144

Dutter, “Family in Fight for £300m ‘War Loot.’ ” For a detailed account of the life and collection of Franz Koenigs, see Koenigs, “My Grandfather's Collection.”

Koenigs offered this collection as collateral on a loan that he took out from a German-Jewish banker Siegfried Kramarsky.145 Kramarsky was forced to call in the loan in 1939 when Holland was under threat of invasion from Germany, and thus seized the collection to satisfy the loan.146 “In December 2003, the Dutch Government issued an extensive report concluding that Koenigs voluntarily sold the collection in order to satisfy his loan obligation.”147

Clark, World War II Restitution Cases,” 548.

The question presented by the Koenigs case is whether the persecution must be sustained by the claimant's ancestor, or whether it is permissible for the persecution to affect a third party, which causes the loss of the claimant's art. My response to this question is that there is no reason to import a rigid standing requirement into the ethical guidelines. If the central concern of museums is to restitute artwork that was lost as a direct result of Nazi persecution, it should not matter whether the claimant's ancestors were themselves exposed to the persecution, but rather whether the claimant's artwork was lost as a direct result of some particularized acts of persecution.

The background of the Koenigs case also raises another interesting question regarding the scope of this subcategory of claims, because Franz Koenigs was a Christian who was persecuted for actively opposing the Nazis.148

Koenigs, “My Grandfather's Collection”: “Franz Koenigs also had a more serious problem. He and other members of the family were threatened by the rise of Hitler and Nazism. He opposed Hitler and feared the consequences of the National Socialist Party in power. In 1937 he took a bold step and applied for Dutch citizenship. His request was granted in 1939 and he gave up his German citizenship. In this act he gave up hopes in obtaining much of his money and family land in Germany…. Franz Koenigs and Anna von Kalckreuths families were focus points of anti-Nazi and Hitler activities. Later, two of her close relatives were executed after attempting to assassinate Hitler. I have found documents indicating that Franz Koenigs was active in helping Jewish Refugees and other Germans to leave Germany. He helped to give them refuge in the Netherlands and traveled to Germany to aid in some of these efforts…. The conflicting stories about the circumstances of his death make it quite clear that he was most likely a victim of the Gestapo” (footnotes omitted).

Would the fact that an individual who was not a member of a persecuted class, but was nonetheless persecuted for opposing Nazism, affect the analysis? My response to this question is that it would not, so long as it could still be demonstrated that a work of art was lost as a direct result of Nazi persecution.

These brief examples are offered in an attempt to give more clarity to the standard of whether a sale was made as a direct result of Nazi persecution and to acknowledge that there may be factual variations that do not fit the mold of the Nathan, Mendelssohn, and Mauthner disputes but should nonetheless be reviewed in accordance with the ethical guidelines.

Lastly, it is worth emphasizing that this article is concerned only with the obligation of museums to treat restitution claims made as a direct result of Nazi persecution in accordance with the ethical guidelines; it does not suggest that restitution will always be appropriate. Nonetheless, acting in accordance with these ethical standards is significant because it improves the likelihood of settling these claims out of court,149

See American Association of Museums, “Guidelines,” 4(e).

and thus in an environment better capable of addressing the moral and emotional aspects of the dispute.150

See note 30; Shapiro, “Repatriation: A Modest Proposal,” 100: “The problem with the legal approach is that it usually leaves a residue of discontent, with at least one of the parties feeling that the important questions were not asked or not fully answered…. The unruly, non-rational aspects of repatriation make it difficult to deal with legally, and are the source of dissatisfaction with resolutions based on property law or other legal approaches.”

In other words, instead of acting contrary to the guidelines by raising legal statute of limitations defenses or filing preemptive declaratory lawsuits, museums should recognize that these claims involve moral circumstances of tremendous weight that deserve the same ethical treatment given to claims involving Nazi theft.151

As a practical matter, it may be that museums review all Nazi-related claims with equal vigor on receipt. The importance of expanding the guidelines to incorporate claims based on a direct (but not proximate) result of Nazi persecution, however, is to prevent museums from subsequently and categorically treating these claims as if they do not present moral considerations similar to those arising from claims based on Nazi confiscation.

I therefore openly acknowledge that this article skirts the difficult issue of how to actually resolve individual claims under the guidelines. As demonstrated by the facts of the Nathan, Mendelssohn, and Mauthner disputes, whether restitution is appropriate in a particular case will likely hinge on difficult and unique factual issues.152

For example, how should the pursuit of restitution by Martha Nathan and Willy Dreyfus for all of their losses except the Gauguin affect the willingness of TMA to return the work? Should suspicions similar to those expressed by Judge Rakoff that the claimant is simply trying to profiteer off of the Holocaust bar restitution despite an otherwise valid claim? See note 75.

My point therefore resides at the threshold: Museums should not categorically refuse to act in accordance with their ethical responsibilities merely because a restitution claim is not based on confiscation or a coerced sale in which the Nazis directly participated. As long as the claimant demonstrates that the loss of the artwork was a direct result of Nazi persecution, the claim should be governed by the ethical guidelines.

References

American Association of Museums. “Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era.” November, 1999. http://www.aam-us.org/museumresources/ethics/nazi_guidelines.cfm (accessed April 30, 2007).
Association of American Art Directors. “Art Museums and the Identification and Restitution of Works Stolen by the Nazis.” October, 2001. http://www.aamd.org/papers/documents/NaziLootedArt_000.pdf (accessed April 30, 2007).
Association of American Art Directors. “Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933–1945).” June 4, 1998. http://www.aamd.org/papers/guideln.php (accessed April 30, 2007).
Bazyler, Michael J., and Kearston G. Everitt. “Holocaust Restitution Litigation in the United States: An Update.” ACLU International Civil Liberties Report, December 10, 2004. http://www.aclu.org/iclr/bazyler.pdf (accessed April 30, 2007).
Berlins, Marcel. “Elizabeth Taylor Accused of Owning Van Gogh Stolen by Nazis.” The Guardian (London), December 7, 2004. http://hnn.us/roundup/entries/8975.html (accessed April 30, 2007).
Bernstein, Richard. “Austrian Panel Backs Return of Klimt Works.” New York Times, January 17, 2006.
Clark, Stephen W. “World War II Restitution Cases.” In Legal Issues in Museum Administration, edited by American Law Institute and American Bar Association, 543–61, 2006.
Cohen, Sherri North, and Reinhard-Felice, Mariantonia. April 19, 2006. Letter on file with Holocaust Claims Processing Office. http://www.claims.state.ny.us/
Department for Culture Media, and Sport. “Spoliation Advisory Panel.” http://www.culture.gov.uk/what_we_do/Cultural_property/sap.htm (accessed February 10, 2007).
Detroit Institute of Arts. “Detroit and Toledo Museums Present Research Findings on Nazi-era Provenance for Two Paintings in Their Collection: Research Confirms Museums' Rightful Ownership of Paintings,” news release, January 25, 2006. http://dia.org/PressReleases/showpressreleases.asp?ID=230 (accessed April 30, 2007).
Dutter, Barbie. “Family in Fight for £300m ‘War Loot.’ ” Telegraph, July 12, 1997. http://www.museum-security.org/97/july12.html (accessed April 30, 2007).
Ekkart Committee. “Origins Unknown: Recommendations Regarding the Restitution of Works of Art,” 2001. http://www.netherlandsembassy.co.nz/webfiles/DutchEmbassy/files/fact7.pdf (accessed April 30, 2007).
European Parliament, Committee on Legal Affairs and the Internal Market. “Report on a Legal Framework for Free Movement Within the Internal Market of Goods Whose Ownership is Likely to be Contested.” November 26, 2003. http://www.lootedartcommission.com/lootedart_europeanunion.htm (accessed April 30, 2007).
Falconer, Kelly Ann. “When Honor Will not Suffice: The Need for a Legally Binding International Agreement Regarding Ownership of Nazi-Looted Art.” University of Pennsylvania Journal of International Economic Law 21 (2000): 383–426.Google Scholar
Feliciano, Hector. The Lost Museum: The Nazi Conspiracy to Steal the World's Greatest Works of Art. New York: Basic Books, 1997.
Hamblett, Mark. “Court Declines to Block Christie's Sale of Picasso Painting, N.Y. Federal Judge Cites Late Complaint, Absence of Jurisdiction.” New York Law Journal, November 8, 2006. http://www.law.com/jsp/article.jsp?id=1162893924777 (accessed April 30, 2007).
Hartocollis, Anemona. “Despite Court Ruling, Christie's Pulls Painting from Auction.” New York Times, Nov. 8, 2006.
Herzog, Dagmar. “Handouts From Hitler: A German Historian Says the Nazis Used Economic Policy to Retain Power.” Review of Hitler's Beneficiaries: Plunder, Racial War, and the Nazi Welfare State, by Götz Ally. New York Times Book Review, February 18, 2007.
Holocaust Claims Processing Office. “Painting Lost During Forced Sale Returned to its Rightful Owners.” News release, October 19, 2006. http://www.banking.state.ny.us/pr061019.htm (accessed April 30, 2007).
Inter-Allied Declaration against Acts of Dispossession committed in Territories under Enemy Occupation and Control. London, England. January 5, 1943. http://www.lootedartcommission.com/lootedart_interallieddeclaration.htm (accessed April 30, 2007).
International Council of Museums. “ICOM Recommendations concerning the Return of Works of Art Belonging to Jewish Owners.” News release, January 14, 1999. http://icom.museum/worldwar2.html (accessed April 30, 2007).
Kinsella, Eileen. “Gold Rush.” Art News, January 2007. http://artnews.com/issues/article.asp?art_id=2193 (accessed April 30, 2007).
Koenigs, Christine. “My Grandfather's Collection,” Address, Moscow Conference, April 10–11, 2000. http://www.libfl.ru/restitution/conf/koenigs.html (accessed April 30l, 2007).
Lane, Tahree. “Heirs Seek to Avoid Legal Battle over Gauguin Painting.” Toledo Blade, February 9, 2006. http://www.toledoblade.com/apps/pbcs.dll/article?AID=/20060209/NEWS15/602090342&SearchID=73279663393364 (accessed April 30, 2007).
Museum of Fine Arts. “Collections: Adoration of the Magi.” http://www.mfa.org/collections/search_art.asp?recview=true&id=35361&coll_keywords=Adoration+of+the+Magi%2C+1725&coll_accession=&coll_name=&coll_artist=&coll_place=&coll_medium=&coll_culture=&coll_classification=&coll_credit=&coll_provenance=&coll_location=&coll_has_images=&coll_on_view=&coll_sort=0&coll_sort_order=0&coll_view=0&coll_package=0&coll_start=1 (accessed January 28, 2007).
Museum of Fine Arts. “Museum of Fine Arts, Boston Reaches Agreement Concerning Holocaust-Era Settlement of Giaquinto Painting.” News release, October 19, 2000. http://www.mfa.org/about/sub.asp?key=82&subkey=1437 (accessed April 30, 2007).
Netherlands Embassy. Cultural Objects and the Second World War—Applications for Restitution. “The NK Collection and the Ekkart Committee.” http://www.netherlands-embassy.ru/downloads/restitution.pdf (accessed February 9, 2007).
Nicholas, Lynn. The Rape of Europa: The Fate of Europe's Treasures in the Third Reich and the Second World War. New York: Knopf, 1994.
Petropoulos, Jonathan. “Art Looting During the Third Reich: An Overview with Recommendations for Further Research.” Address, Washington Conference on Holocaust-Era Assets, Washington D.C., April 1999. http://www.state.gov/www/regions/eur/holocaust/heac4.pdf (accessed April 30, 2007).
Pollock, Benjamin E. “Out of the Night and Fog: Permitting Litigation to Prompt an International Resolution to Nazi-Looted Art Claims.” Houston Law Review 43 (2006): 193–233.Google Scholar
Rowland & Associates. “Martha Nathan Heirs React to Lawsuits to ‘Quiet Title’ Filed by the Toledo Museum of Art and the Detroit Institute of Arts.” News release, February 7, 2006. http://mmdnewswire.com/content/view/15/ (accessed April 30, 2007).
Robinson, Walter V., and Maureen Goggin. “Stolen Art Claims Shake N.Y. Museum; Raise Concern US Houses Looted Work; THE ART WORLD'S SPOILS OF WAR.” Boston Globe, July 24, 1997.
Rosenbaum, Lee. “Will Museums in U.S. Purge Nazi-Tainted Art? Association of Art Museum Directors Issues Action Plan for Return of Nazi-Looted Art.” Art in America, November 1998. http://www.findarticles.com/p/articles/mi_m1248/is_n11_v86/ai_21257944 (accessed March 8, 2007).
Shapiro, Daniel. “Repatriation: A Modest Proposal.” New York University Journal of International Law and Politics 31 (1998): 95–108.Google Scholar
Spoliation Advisory Panel. Report of the Spoliation Advisory Panel in Respect of a Painting now in the Possession of Glasgow City Council, 2004. http://www.culture.gov.uk/NR/rdonlyres/84612683-31A0-42E1-AFB7-B9B60A48CA16/0/991224Spoliation.pdf (accessed April 30, 2007).
Spoliation Advisory Panel. Report of the Spoliation Advisory Panel in Respect of a Painting Now in the Possession of the Tate Gallery, 2001. http://www.culture.gov.uk/NR/rdonlyres/2ED97DA7-9E93-4F75-8301-AE8F496FC385/0/galleriesspoliation.pdf (accessed April 30, 2007).
Urice, Stephen K. “Recent Cases in the United States Regarding Holocaust-Period Art Seized Illegally.” Studies in Art Law 15 (2004): 95–102.Google Scholar
U.S. Congress. House of Representatives. Committee on Banking and Financial Services. The Restitution of Art Objects Seized by the Nazis from Holocaust Victims and Insurance Claims of Certain Holocaust Victims and Their Heirs, 105th Cong., 2nd sess., February 12, 1998.
Washington Conference Principles on Nazi-Confiscated Art. December 3, 1998. http://www.lootedartcommission.com/lootedart_washingtonprinciples.htm (accessed April 30, 2007).