The Surprise Norton Simon Museum Nazi Loot Ruling, Explained

Artsy 19 August 2016
By Isaac Kaplan

Lucas Cranach the Elder, Adam and Eve, circa 1530.

In a ruling that has surprised court observers, a judge declared that the Norton Simon Museum can keep two Cranach paintings at the heart of a decade-long Holocaust restitution dispute. So why is a work taken from a Jewish family by senior Nazi figure Hermann Göring not heading back to the heir of the original owner? Is this ruling the work of an activist judge? And what are the potential ramifications of the decision, should it be upheld upon appeal?

The Case, in Brief

Saher vs. Norton Simon Museum of Art centers around Lucas Cranach the Elder’s Adam and Eve (circa 1530), two works currently in the collection of the Norton Simon Museum. Marei von Saher, the heir to Jewish art dealer Jacques Goudstikker, sued the museum nearly a decade ago, arguing that the pieces were forcibly taken when Göring took control of Goudstikker’s company in 1940, around the time when Goudstikker fled his native Netherlands. As such, argue Von Saher’s lawyers, the works should be restituted to her.

Though both sides agree that the works were in Göring’s possession, what happened next is a source of debate. Following the war, the works were secured by the allies and returned to Dutch authorities. They were then sold to the Russian aristocrat George Stroganoff-Scherbatoff in 1966. For his part, Stroganoff-Scherbatoff claimed that the Soviet government stole the two works in question from his family long before they were sold to Goudstikker in 1931 and thus actually belonged to him. Either way, in 1971, the Norton Simon bought the two pieces from Stroganoff-Scherbatoff and they are currently part of the museum’s collection.

Von Saher subsequently sued, arguing that the pieces—taken by the Nazis and, she alleges, improperly sold to Stroganoff-Scherbatoff by Dutch authorities—should be returned to her as the rightful heir. She also disputes Stroganoff-Scherbatoff’s argument that the pieces were stolen by the Soviets and thus couldn’t have legally been sold to Goudstikker in the first place.

In the course of the decade-long litigation, the case has been dismissed twice previously. In briefs submitted to the court in the leadup to this week’s ruling, both sides argued for a summary judgment in their favor. (Those looking for a detailed breakdown of the legal arguments should see Nicholas O’Donnell’s comprehensive summary.)

The Ruling

In his ruling just weeks before the case was set to go to trial, U.S. District Court judge John Walter dismissed the restitution claim, finding on Monday that the Norton Simon Museum has legal title to the Cranach paintings. Judge Walter didn’t decide on the legality of the 1961 transfer of the painting by the Dutch to Stroganoff-Scherbatoff. Rather, Walter ruled that Desi Goudstikker, Jacques’s widow, and her representatives failed to make a claim on the works in the requisite timeframe required by Dutch law following the conclusion of the war.

According to the judgement, since Goudstikker did not make a claim by 1951, the date required under Dutch law, the paintings became the property of the Dutch state. “Thereafter, the Dutch could buy them, sell them, give them away—do whatever they want,” lawyer Nicholas O’Donnell told Artsy. Since the state had full title—as opposed to acting as a caretaker of the works prior to eventual restitution—the sales to Stroganoff-Scherbatoff and subsequently to Norton Simon are legally sound. For her part, Von Saher has argued that the Dutch restitution process was notoriously callous, and that her family and its representatives didn’t make a claim out of a belief they could not receive a fair hearing.

In a statement, the museum said it was “pleased” with the ruling, adding that the court’s decision is based on “the merits, considering the facts and law at the heart of the dispute.” Through her lawyer, Von Saher disagreed, saying she was “surprised and dismayed” by the decision, while noting she believes it will be reversed on appeal. “I remain undaunted and am confident that I will prevail in the end,” she added.

The Potential Impact

But should the Ninth Circuit validate the district court, “the legal ramifications are likely not too broad, since the decision itself turned on an interpretation of a series of post-war Dutch laws and decrees,” said O’Donnell. Christopher A. Marinello, founder of Art Recovery International, a firm which specializes in cultural heritage law and the restitution of Nazi-looted art, also noted the ruling’s narrow scope and cautioned that other institutions embroiled in Holocaust restitution litigation shouldn’t feel comforted by the decision.

The pair are already questioning the district judge’s rationale. Writing that the judge’s reading of Dutch law was “incorrect,” O’Donnell argued that the Dutch decrees which form the bedrock of the court’s verdict created time limits for restitution claims if the party belonged to an organization disbanded by the Germans. Goudstikker’s firm, however, remained in tact for the duration of the war, though it was under the control of Goering. Marinello expressed dismay with the ruling, calling it a “misreading of the facts and a misapplication of the law” by what he termed “an activist judge.”

A Public Disconnect

Marinello chalks the decision up to “a misguided effort to keep [the works] in the museum, despite the clear fact that they were looted from this Jewish family.” In their statement, the museum said it “takes seriously” its role safeguarding the works for the public, noting that the Norton Simon has “placed the panels on near-constant public display since 1971 and will continue to ensure they remain accessible to the public for years to come.” Through her lawyer, Von Saher said that showing the two pieces “taints both the Museum and all of those who view them there.”

To many onlookers not versed in the finer points of legal doctrine, decisions against the heirs of Holocaust victims raise eyebrows. “The only reason the Norton Simon has these paintings in the first place is that Hermann Göring decided to take them away from its rightful owner,” said Marinello. In her statement, Von Saher highlighted this point, noting “there is no dispute that the Cranach works that belonged to Jacques Goudstikker were stolen by Hermann Göring himself.”

Indeed, the Norton Simon’s claims to the painting don’t involve contesting that the pieces were forcibly expropriated by the Nazis. O’Donnell noted what he called a “puzzling disconnect” between how the Norton Simon treated the case—namely as a legal dispute—and how this and similar cases are perceived by the public, which tends to see Holocaust restitution as a moral issue.

Global Challenges

In the abstract, museums and governments worldwide have agreed to a fairly progressive set of guidelines for restituting art taken during the Holocaust. In 1998, the Association of American Museum Directors (AAMD) published a set of guidelines that said museums should work toward “equitable, appropriate, and mutually agreeable” solutions using mediation, not the courts, in instances where works were believed to have been unlawfully taken. The AAMD outline informed the The Washington Principles, an international, non-binding agreement that called for all efforts to be made to come to a solution “expeditiously” in restitution cases. In 2009, 46 nations agreed to the Terezin Declaration on Holocaust Era Assets and Related Issues, which expressed support for redoubling efforts to restitute property.

Indeed, despite such agreements and the publicity drummed up by such cases, “the state of restitution efforts world-wide is not great,” said Marinello. “A decision like this brings out the anti-Semites, it brings out the people who say they have had enough of restitution work—and that would be wrong,” he added. O’Donnell—who is currently litigating a separate Holocaust restitution claim—notes that museums and other institutions continue to take to the courts and assert affirmative defenses, like arguing that the statute of limitations has expired, that do not substantively address the Nazi provenance of the works in question.

While museums and governments express support for Holocaust restitution, the difficulties claimants face when actually attempting to get their work can be all the more disheartening. “After the United States signed on to the Washington Principles and the Terezin Declaration, I and other heirs of victims of the Holocaust believed that the wrongs perpetrated by the Nazi regime would be rectified and that those who have benefitted from those crimes would be held accountable,” Von Saher said in her statement, calling the decision a “major setback” to that cause. But, as O’Donnell notes, “this is a case that’s gotten dinged multiple times by the district court and then come back to life in the the Ninth Circuit.”

While the appeals process in the Von Saher case churns—oral arguments likely won’t occur until next summer, with a final ruling more than a year away—Marinello said he will continue to urge other potential claimants to come forward with as much information as possible. “Don’t be discouraged by an activist decision like this,” he said.
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