Battling Hitler’s Ghost in Claiming Nazi-Era Art

“I want justice,” Michael Hulton told the German publication Der Spiegel in early July.

Hulton was speaking both for himself and his late grand-uncle Alfred Flechtheim, a legendary Berlin gallery owner who lost dozens of master paintings to the Nazis before World War II. The successful art dealer had to leave Germany in 1933, victim of Adolph Hitler’s Jewish purge.

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A resident of San Francisco, Hulton regularly travels to Berlin, attempting to recover “his inheritance, which consists of works of art that Flechtheim owned and either went missing or had to be sold during the Nazi era,” the Der Spiegel article states. “They consist of 11 paintings and six works on paper, which are now owned by German museums, including works by Pablo Picasso, Max Beckmann and Paul Klee. Paintings from the Flechtheim collection also hang in American museums. Hulton and his attorney, Markus St√∂tzel, estimate the market value of the estate at ‚Ǩ100 million ($124 million).”

The Museum of Modern Art (MOMA) is one of those American institutions who benefitted from Flechtheim’s immigrating to America, and bringing some of the artwork with him. They include paintings by Picasso, Klee, Georges Braque, and George Grosz. (See Grosz’s “Explosion,” 1917, below).

The U.S. Supreme Court last September refused to consider claims from Grosz’s heirs for three of the Expressionist master’s paintings at MOMA. Why? The lower court had ruled that the statute of limitations had passed for making such claims. The same ruling has applied to other court cases in both Europe and America where plaintiffs have attempted to reclaim Nazi-era art.

One of the lawyers in the Grosz case, David Rowland, provided an overview of the problems with Nazi-era art reclamation in a 2009 paper given to a New York Federal Bar Council conference, with special emphasis on art now in the United States. In that paper, he made three recommendations:

1. The United States needs to reform its response to the Washington Conference to insure that Nazi-era art claims be decided on their merits. The 1998 conference brought together 44 countries trying to address the issue of museums worldwide holding Nazi-era art. They agreed to 11 principles for researching and finding “fair and just solutions.” Rowland, in his paper, called the principles “softlaw” because “they are morally based but not enforceable in court.”

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2. The statute of limitations and laches defenses should be eliminated where Nazi-era art claims are litigated in U.S. courts.

3. A neutral national art commission should be established with exclusive jurisdiction to decide Nazi-era art claims on their merits.

Rowland told Peculiar Progressive via email last week:

In my view the main problem in the U.S. is that Nazi looted art cases are not being decided on the merits, because there is no mechanism in place to provide for this. Other countries have addressed this issue, either by passing legislation or by providing a national art commission to review Nazi looted art claims on the merits.

However, the U.S. has so far not taken any actions to implement the recommendations of the Washington Conference and the follow up Terezin Conference which calls for a resolution of these cases on the merits. Instead, we are left with a system, where the only recourse is to litigate cases in U.S. courts.

Rowland stresses that in the courts “the deck is stacked against claimants” since civil law applications don’t consider that the Holocaust occurred when the victims were scattered about the world, and…were more concerned with survival than the recovery of their stolen property. To penalize them for this is absurd and leads to unjust results.”

In his 2009 paper, Rowland noted that the American Association of Museums (AAM) and the Association of American Museum Directors (AAMD) has developed guidelines for dealing with Nazi-era art. They include “reviewing the provenance of artworks in the museum’s collection and posting this information on the museum’s website. In addition, a self-policing system was created whereby museums are supposed to resolve Nazi-era art claims ‘with the claimant in an equitable, appropriate, and mutually agreeable manner.’ ”

The guidelines also instruct U.S. museums to “seek methods other than litigation” and consider using mediation, and seek out heirs who may have Nazi-era claims in order to resolve them.

Rowland complained in his paper that the two associations did not instruct museums to file suit against Nazi-era art claimants, but some museums have. He cited the Toledo Museum of Art and Detroit Institute of Art who filed lawsuits in 2006 against the heirs of Martha Nathan. In 1938, Nathan-who had been forced to flee Germany-sold four artworks to a dealer consortium. They in turn sold two of the works, one by Paul Gauguin to the Toledo museum and one by Vincent Van Gogh to a private collector who later donated it to the Detroit institute.

Federal courts in both Toledo and Detroit found the statute of limitations had passed four years before the lawsuits’ filing.

Rowland also noted that both MOMA and the Guggenheim museums had filed a suit to hold on to two Picasso artworks, and actually had settled the case with the claimant on the New York courthouse steps.

He also provided Peculiar Progressive with a 2009 58-page study by Jennifer Anglim Kreder, Assistant Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University. It’s title: The New Battleground of Museum Ethics and Holocaust-Era Claims: Technicalities Trumping Justice or Responsible Stewardship for the Public Trust?

At the study’s end, Kreder offers a proposed “Nazi-Era Art Restitution Act” or the “NEAR Act.” The proposed legislation is an effort to both respond to claims by dispossessed heirs of artwork as well as protect good-faith purchasers of the art. Kreder told Peculiar Progressive on Monday that no legislative body has attempted to introduce her legislative proposal, or any other similar legislation.

The only state that has responded to claimants’ and museums’ plight is California, which in 2002 expanded the statute of limitations until 2010, but now that has expired.

Nazi-era art obviously jams museums into a crawl space. On the one hand, they’ve purchased the art, have preserved it and offer a safe haven for viewing by the world public. On the other, if they end up in court, the image tarnishes and can make them appear heartless toward families of Hitler-victimized art dealers or artists.

So far, neither Congress nor the states appear to be seeking a long-term solution which could help both sides.

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