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Under the U.S. Supreme Court: Goering, a museum and Nazi-looted art

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UPI 10 October 2010
By Michael Kirkland

WASHINGTON -- How many years, how many laws or court rulings, how many regulations does it take to wash the tragedy from a work of art?

What makes an artwork -- stolen from desperate people, part of what would become the largest claim of restitution involving Nazi theft -- clean enough to be kept in a museum?

The U.S. Supreme Court may have a try at finding out.

The focus of a case brought before the high court this term involves the delicate balance among state, federal and foreign governments, and more specifically a California law that extends the statute of limitations for court actions against museums and galleries to recover Nazi-looted art.

The case is also a detective story of sorts, with plenty of byzantine twists and turns and a whiff of Bolshevik perfidy and Nazi greed.

"The California Legislature has recognized the unique nature of claims for the return of artworks looted during World War II ... and the roadblocks that make pursuing these claims so difficult," a petition in the case says. "Those who seek legal redress for the theft of artworks during WWII must engage in detailed investigations, often in several countries, obtain translations of foreign historical documents and seek the assistance of legal and historical experts, among other things, all of which may take many years to complete."

Trying to recover looted art "also inevitably forces victims and their heirs to relive the horrors associated with that era," the petition adds. Families or heirs "are often thwarted in their efforts to regain their property because present day possessors resort to statutes of limitations and other technical defenses despite undeniable proof of an earlier Nazi confiscation."

The 2002 California law, unanimously enacted by the Legislature, extends "the statute of limitations for claims for the return of Nazi-looted artworks brought in California against museums or galleries," the petition said. The new law "prevents museums and galleries -- which should know the importance of provenance and are in the best position to discover whether an artwork they are acquiring is among the thousands looted during WWII -- from taking advantage of a technical defense to a meritorious claim for the return of stolen artworks."

In other words, simply citing a statute of limitations doesn't protect the museum.

The art in question is by Lucas Cranach the Elder, a 16th century German Renaissance painter and print-maker, known for his portraits of Martin Luther and other Reformation figures. But he wasn't above doing the occasional nude.

Cranach's life-size "Adam" and "Eve" -- appraised at $24 million for the pair -- are on display at the Norton Simon Museum of Art at Pasadena, Calif.

Who owns the works is the subject of debate. So is the identity of the original victim, a noble Russian family or a world-renowned Jewish art dealer in pre-war Amsterdam.

Marei von Saher, a Greenwich, Conn., resident and "the sole living heir of the noted Jewish art dealer, Jacques Goudstikker," says the Cranachs were part of the works at Goudstikker's gallery. Von Saher is Goudstikker's daughter-in-law.

After the Nazis invaded the Netherlands in 1940, only 35,000 of 140,000 Dutch Jews survived the war.

Reichsmarschall Hermann Goering looted the Goudstikker gallery of more than 1,000 pieces of art, including the Cranachs, which he wanted for his personal collection. Actually, Goering put low-level employees in charge of the massive Goudstikker collection, then forced them to sell at ridiculously low prices.

After the invasion, the Jewish Goudstikker, 43, fled the country, and died after he broke his neck in a fall aboard a ship crossing the English Channel.

After the war, the Cranachs and the other artworks were recovered by Allied troops, and in accordance with policy, turned over to the Netherlands with the expectation they would be returned to the original owner.

Von Saher's petition said Goudstikker's widow did receive some works, but the Dutch government retained the Cranachs and other art looted by Goering.

Meanwhile, Georges Stroganoff-Scherbatoff appeared in 1961 to say the art actually belonged to his noble Russian family. The Dutch sold the art to Stroganoff in 1966, Von Saher's petition said.

"In fact, the Cranachs came from the Church of the Holy Trinity in Kiev, and Goudstikker purchased them at an auction in 1931," the petition said. "They had never been part of the Stroganoff family art collection."

The Norton Simon Museum of Art at Pasadena acquired the Cranachs from Stroganoff in the early 1970s, where von Saher said she discovered them on or about November 2000.

At that point, von Saher said she wanted the Cranachs back, but the museum said no.

Meanwhile, the Dutch government apparently had a change of heart in 2001 and decided to return 200 priceless works of art to von Saher.

The museum tells a slightly different story of the Cranachs' provenance: "The Soviets" -- needing hard currency -- "sold the Cranachs in 1931 as part of an auction titled 'the Stroganoff Collection,' which featured artworks (confiscated after 1917) from the noble Stroganoff house," the museum said in its own brief. The Stroganoff family fled the revolution and all their Russian property was confiscated. "Over the Stroganoff family's protest, the Cranachs were purchased by ... a prominent Dutch art dealer named Jacques Goudstikker."

Under protest, Goudstikker's widow chose not to seek the return of the artworks, the museum said, "which would have required her to return the money paid by Goering for those works" in the forced sale. "The time to file a claim under Dutch law elapsed in 1951."

The Dutch government transferred the Cranachs to Georges Stroganoff-Scherbatoff as part of a settlement that also included money.

Von Saher filed suit in federal court in Los Angeles in May 2007 to recover the Cranachs from the Pasadena museum, but a judge dismissed the suit, holding the California law extending the statute of limitations to make the claim "intrudes on the federal government's exclusive power to make and resolve war, including the procedure for resolving war claims," and is therefore unconstitutional. Without the new law, von Saher had only three years to make her claim under California law after discovering the Cranachs in the museum.

The 9th U.S. Circuit Court of Appeals also ruled for the museum, saying the California law was designed to create "a worldwide forum for the resolution of Holocaust restitution claims," which was not a "traditional state responsibility." Since California was not exercising a traditional state function, the court said, the state law was pre-empted by the foreign affairs power reserved to the federal government because the intent of the state statute was to right wartime wrongs.

In her petition to the U.S. Supreme Court, von Saher said the appeals court "misconstrued" Supreme Court precedent, particularly in 2003's American Insurance Association vs. Garamendi.

The Garamendi case came about because the Nazis "confiscated the value or proceeds of many Jewish life insurance policies issued before and during the Second World War," the Supreme Court said in its ruling. "After the war, even a policy that had escaped confiscation was likely to be dishonored, whether because insurers denied its existence or claimed it had lapsed from unpaid premiums, or because the German government would not provide heirs with documentation of the policyholder's death."

As in the artworks case, California acted, its Legislature passing the Holocaust Victim Insurance Relief Act of 1999. The state act required any insurer doing business in the state to disclose information about all policies sold in Europe from 1920 to 1945 by the company or anyone "related" to it. Violations of the act meant loss of an insurer's state business license.

After the act became law, California issued administrative subpoenas against several subsidiaries of European insurance companies that were already cooperating with an international commission on Holocaust insurance claims. The federal government then warned California its new law interfered with the work of that commission.

Eventually, the U.S. Supreme Court ruled the California Holocaust insurance law "interferes with the president's conduct of the nation's foreign policy and is therefore pre-empted."

Von Saher's lawyers argue the California law extending the statute of limitations for the recovery of looted art, unlike the state law in Garamendi, does not conflict with any federal law or international treaty, and the 9th Circuit's ruling in the Cranach case unconstitutionally extends federal pre-emption.

Von Saher is no longer alone in her case. A number of organizations have filed friend-of-the-court briefs on her behalf, including the Simon Wiesenthal Center and Bet Tzedek, "The House of Justice," a Southern California non-profit legal service that says it has represented more than 800 Holocaust survivors or their families. California also has filed a brief supporting her.

All these briefs, of course, presumably were read by the Supreme Court justices this summer, including the briefs filed by von Saher and the museum. The high court could take several actions: rule summarily for either side without hearing argument, agree to hear argument before any ruling or simply refuse to review the case.

For the moment, the justices are asking the U.S. solicitor general's office for advice. At the start of the new term on the first Monday in October, they asked the administration lawyers for an opinion on what should be done with the case.

The solicitor general's office should reply with an opinion within a couple of months.

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