Claims Conflict

Artnews October 2010
By Robin Cembalest

Tensions are rising between the restitution community and U.S. museums over the proper way to handle Holocaust art claims

Groups representing museums in the United States and groups advocating for the restitution of Nazi war loot say they have the same goal: to identify and restore looted art to its owners or their heirs.

But how to achieve that goal has become a source of rising tension between the Jewish claims community and the American museum community. Among the issues that divide them are what exactly constitutes Holocaust art loot, who should adjudicate claims, and where and how final rulings should be made. But the major source of contention is the claims community's charge that museums are deliberately thwarting justice by wriggling out of ethical obligations through cynical legal maneuvers.

"It is embarrassing that countries that previously did not have such good records in this field, such as Austria, are doing a very good job," says Wesley Fisher, director of research at the Conference on Jewish Material Claims Against Germany. "And the United States is not doing as well as it was."

Representatives of the American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD) say their critics are ignoring the many successful restitutions and disregarding the efforts museums are making to research the history of works in their collections that changed hands before and during World War II. "The real problem is that museums and claimants need help with research," says AAMD president Kaywin Feldman, director of the Minneapolis Institute of Arts. "We feel like we're a broken record on this topic."

The deterioration of relations between the museums and the restitution advocates has been disappointing to the architects of the current system to identify and restitute Holocaust art, which was initiated in 1998 at the Washington Conference on Holocaust-Era Assets, sponsored by the State Department. The United States was one of 44 countries whose representatives signed a document known as the Washington Conference Principles on Nazi-Confiscated Art; the participants promised to post art with an unclear wartime provenance on a central registry and to find a "just and fair" solution to claims. Representatives of 47 nations reaffirmed those principles in the Terezin Declaration, produced at the Holocaust Era Assets Conference in Prague in 2009.

"The system is not working as well as it should," says Stuart E. Eizenstat, who helped negotiate the Washington Principles as special representative of the president and secretary of state on Holocaust-era issues in the Clinton administration. "A lot of the momentum coming out of the Washington Principles to return looted art around the world has been lost."
"The pendulum has swung so far away from the idea of cooperation and transparency we saw in 1998," says Jennifer Kreder, associate professor of law at Northern Kentucky University, who focuses on Holocaust claims. "In the claims community, there is a sense of indignation; they've been waiting for over a decade for museums to live up to the promises made in 1998. Some museums are trampling on the Washington Principles, the Terezin Declaration, and the AAMD's own guidelines. I think they're distorting history by preventing our ability to research and understand trafficking in Nazi-looted art."

Van Gogh, The Diggers, 1889, in the Detroit Institute of Arts, was the subject of a forced-sale claim—and a preemptive suit by the museum.

Tensions have been exacerbated in recent years by the expansion of the concept of war loot to include "forced sales" by Holocaust victims who had no choice but to sell their property at below-market prices in order to flee Nazi-occupied countries. In response, the Terezin Declaration went beyond the Washington Principles in including art that "was confiscated, sequestered and spoliated, by the Nazis, the Fascists and their collaborators through various means including theft, coercion and confiscation, and on grounds of relinquishment as well as forced sales and sales under duress, during the Holocaust era between 1933–45 and as an immediate consequence." However, in response to claims for such objects, several museums—among them the Museum of Modern Art, the Guggenheim, and the Museum of Fine Arts, Boston—have gone to court to preemptively establish title, or to have the claims dismissed on the basis of the statute of limitations.

That was the case, for example, when MoMA and the Guggenheim filed jointly in U.S. District Court in New York in 2008 for a declaratory judgment of ownership of two Picasso paintings. The works had been claimed by the heirs of Paul von Mendelssohn-Bartholdy, a German Jewish banker who sold them before his death in 1935. The museums argued in their court papers that there was no evidence the works had been sold under duress and questioned why no prior heirs had pursued claims in the seven decades since the sales. The case was settled out of court shortly before trial.

According to restitution advocates, such legal strategies make it impossible for the claims to be considered on their own merits. "Major museums have engaged in the concerted effort to intimidate claimants and to assert the statute of limitations to prevent an independent review of the validity of the claimants’ position," says Charles Goldstein, counsel to the Commission for Art Recovery. "They try to chill claims, because if you walk in to one of these museums and make a claim, you can expect to be a defendant in a federal lawsuit."

"Their concerns are based on a misreading of AAM and AAMD guidelines," says Erik Ledbetter, senior adviser to the AAM on standards and ethics. "The gist of the guidelines is now and has always been that we expect museums to do the right thing—to fearlessly follow the historical evidence in pursuit of a just outcome. To that end, the guidelines allow museums to waive defenses that in other circumstances they would have to exert even if those defenses would prevent a just resolution."

In other words, he says, if there is evidence that a work was looted, the museum will not attempt to defend its title in court—it will restitute the work. However, "when the historical investigation shows there wasn't looting, then our obligation is to defend the collection and retain objects held in trust for the public. And to do so, we use the defenses the law gives us."

A major stumbling block, says Feldman, is that museums don't have the funds or the personnel to fulfill their commitment to post items on the Nazi-Era Provenance Internet Portal, an online registry of objects in U.S. museum collections that changed hands in continental Europe during the Nazi era. The AAMD discussed funding with representatives of several government agencies, suggesting the sum of $1.4 million to $2 million to help museums with annual budgets of under $40 million to investigate their collections. Among the agencies the AAMD spoke to are the National Endowment for the Arts, the National Endowment for the Humanities, and the Institute of Museum and Library Services. "Everyone's been very sympathetic," Feldman says, "but we haven't seen any funding come forth."

At the same time, new sources of information are being made available that will help researchers trace objects’ paths through the wartime years. This fall, the claims conference will make public the results of several major projects based on the records of the Einsatzstab Reichsleiter Rosenberg (ERR), the main Nazi agency engaged in plunder of cultural valuables in Nazi-occupied countries during World War II, according to Fisher. Among them is the joint creation, with the United States Holocaust Memorial Museum in Washington, D.C., of a database of art objects processed at the Jeu de Paume in Paris between the fall of 1940 and early August 1944.

Meanwhile, this summer the National Endowment for the Humanities announced that it is helping to fund a collaboration among the Getty Research Institute, the Heidelberg University Library, and the Art Library of the National Museums in Berlin to digitize German auction catalogues from 1930–45, creating a way to search records of art sold in wartime Germany.

Representatives from the State Department, the claims community, and the museum groups have been holding meetings to consider another potential tactic to facilitate the restitution process: a federal commission to adjudicate Holocaust loot claims, similar to those in several European countries.

The State Department is still exploring how such a commission might work—who would fund it, who would staff it, and what its mission would be, says Eizenstat, who is now with the Washington, D.C., law firm Covington & Burling but serves as an unpaid adviser to the State Department on Holocaust issues. "We think, bottom line, these decisions and claims should be resolved on the merits," he says.

"The pro is that it might provide research, help develop cases, and provide mediation services," Goldstein says. "The con is that, I think, it is highly unlikely that museums will participate in the process."

In addition, Goldstein adds, a commission would not address "the real problem"—the statute of limitations. Unless museums agree to waive that statute in all claims cases, he says, "everything else is pointless."

Robin Cembalest is executive editor of ARTnews.
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