Here's Why We Need The HEAR Act

The Weekly Standard 25 August 2016
By Alice B. Lloyd

Nazi-looted 'Adam' and 'Eve' denied to their rightful heir after ten years in court.

The two paintings—side-by-side Adam and Eve panels, a diptych in delicious Northern Renaissance detail—went to Hitler's chief underling, the fat philistine and stolen-art hoarder Hermann Göring, in 1940. And now, according to a California District Court decision, they'll stay in a Pasadena's Norton Simon Museum, where they've been for forty years. They will not be returned to their rightful heir.

The museum's founder, Norton Simon, bought Adam and Eve by Lucas Cranach the Elder from Russian nobleman who'd won them from the Dutch government not ten years prior. But Adam and Eve had fallen to Holland after Göring's pretrial suicide, although their owner, collector Jacques Goudstikker—who died while fleeing Holland—had family in Europe and America.

Cases like this one, with complex provenance causing procedural problems, motivated international agreements—the Washington Principles of 1998, for instance—to honor Nazi-looted art claims above technical impediments to their fair, full-credit trials. At present, a bipartisan bill in the U.S. Senate, the Holocaust Expropriated Art Recovery (HEAR) Act, aims to reset these claims' statutes of limitation at the federal level.

In response to the Norton Simon ruling, a spokesman for Senator Ted Cruz, the HEAR Act's most vocal co-sponsor, told THE WEEKLY STANDARD, "[C]ases like this stand as a stark reminder of the many obstacles that Holocaust victims and their heirs face in undertaking the arduous and costly endeavor of suing to recover artwork that was unjustly taken from them by the Nazis." And according to testimony from legal expert and claimant-advocate Dr. Agnes Peresztegi, Nazi-looted art claims merit the same exceptional legal status as genocide cases. Crimes of world-historical proportions deserve trials unconstrained by conventional time limits.

As the case for the two Cranachs dragged on from its 2007 filing, its technical complexity may have discouraged close public scrutiny. But strains of romance and tragedy drew the the art world and mainstream media to the story—and to the paintings' unearthly allure. One of at least three Adam and Eve diptychs painted by Lucas Cranach the Elder, this pair of panels is different: Eve's radiating corkscrew curls mirror the coiled serpent as if its tempting suggestion electrifies her—and she's looking down at the forbidden fruit, not beseechingly at Adam as she does in Cranach's earlier treatment. Eve looks both stoned and penetratingly wise. Has she already tasted the apple? The fruit in her hand is mostly out of view, so it's unnervingly unclear whether we're witnessing the actual moment of the fall. Adam, scratching his head, is just an awkward appendage while the first woman, it seems, lets some new knowledge sink in; the two, in their parallel panels, inhabit separate worlds.

They belong in a museum. Or so goes the Norton Simon's appeal—their long-form statement—to the art lover's civic sensibility. The museum's prejudice favors self-preservation, per the standard defense against Nazi-looted art claims, guarding its namesake collection. But, just like the Norton Simon, the claimants intend to honor their ancestor's collection: The plaintiff Marei von Saher has made an impressive and sometimes successful campaign of restoring her father-in-law Jacques Goudstikker's stolen works. By holding private auctions of the most art-historically significant works she's won, she has ensured their sale to museums.

The victorious museum in the tony Los Angeles enclave bears its late founder's name. In the 1970s, Simon purchased the paintings from the last heir of the Russian Stroganoff family, who had managed to reclaim them from the Dutch government nearly ten years before, citing their forced sale to the Bolsheviks. Norton Simon says this alleged Bolshevik intervention brought the paintings to Goudstikker, while the late collector's family holds that their patriarch found the paintings in a Kievan church, not at a Stalinist auction. Von Saher challenged the successful Stroganoff claim for postwar restitution from the Dutch—a ruling protected by international law.

E. Randol Schoenberg, one of von Saher's lawyers, previously helped Maria Altmann recover her aunt's famous Klimts from Austria. He calls the Cranach diptych's provenance indisputable and hopes for an appeal, an opportunity to challenge the authority of the Dutch ruling. "The judge held that the Dutch could obtain title by decree as against the widow and minor child of the former owner," Schoenberg explained to me. "A state may take property from its own citizens, but Goudstikker's wife was originally an Austrian Jew, so the Dutch may not have been able to take the paintings from her by decree." Desi Goudstikker, the collector's widow and the claimant's mother-in-law, indeed wanted to claim the Cranachs from the Dutch government—but she didn't think her claim stood a chance in an unsympathetic court. Prejudicial historical proceedings regularly complicate the pre-existing legal snarls. Indeed, the Dutch government was admittedly unreceptive to Holocaust restitution claims: In 2001 a review of their processes for handling these claims found postwar procedures were "legalistic, bureaucratic, cold and even callous"—and, doubtless, forbidding.

The generational lag in Nazi-looted art restitution claims is a phenomenon well-known to psychologists studying inherited trauma—and commonly attributed to first-generation survivors' preference to forge ahead rather than rake over the past. Dr. Peresztegi links a recent uptick in reclamations to a new generation's curiosity about its lost heritage. The Goudstikker-von Saher case is as idiosyncratic as any, but its generational timeline follows the familiar pattern.

In fighting off von Saher, the Norton Simon argued that her family's claim of ownership had elapsed: "Plaintiff will have to convince the court that the equitable doctrine of laches should not preclude her attempt to re-litigate these claims, despite the fact that nearly a century has passed." Laches, a more subjective legal time limit, punishes Nazi-looted art claimants for waiting to make their case. It's a common and convenient defense against overdue justice, and one the HEAR Act proposes to null.

Whether or not the Dutch restitution to Stroganoff will continue to override the claim by Goudstikker's descendants, we collective inheritors of a monumental evil must acknowledge that historical injustice—genocide, and the pervasive ethic of hateful prejudice that permitted it—has precluded fair proceedings in the past. Or at least that's the premise of legislative efforts to render exceptional status for Nazi-looted art cases. Such cases can seem prohibitively complex, but it's clear these material reparations (and what's more physically real than a richly Northern picture of the fall from paradise?) should stand against a legacy of evil.
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