The American museums, the US Senate and the art market vs. Claimants

by Marc Masurovsky

It’s hard to believe that we have reached this point again.

The US Senate and its friends in the art market and in some well-established organizations which purport to advocate on behalf of victims of cultural plunder want to do away once and for all with the restitution process as we know it today, however imperfect it may be, by replacing it with a brief period during which a claimant can file for restitution with the illusion that there will be no legal obstacles put in her way and, when this “sunset” period is over, the boom comes down and there might never be another opportunity to obtain redress for a wrong tied to genocide.

Since 2012, the American museum community and their friends in the art market and in Congress have ceaselessly attempted to do away with all legal protections afforded to victims of cultural plunder by the American legal system, minus that problem involving legal technical defenses. In short, if looted objects are found in the United States, those who argue that they are the rightful owners can present their case before an American court and argue for the restitution of what they view is their property which they lost without their consent.

We are now in 2016 and the US Senate is getting ready once again to ramrod claimants from their right to seek restitution, this time by making it look as if the proposed legislation, S.2763, is really for them. But it is not. Rather than go into tedious explanations, it’s best to allow Pierre Ciric, a restitution lawyer who is also counsel to the Holocaust Art Restitution Project, to explain the problem and its urgency. The most egregious part of this exercise is that those who uphold the rights of claimants including established American Jewish organizations, members of the New York bar, Senators, auction house executives have jeopardized their very right to obtain restitution by signifying their support to this proposed legislation.

Obviously, the world would be a simpler place if there were no claims for looted art. But then no one asked the Nazis to come to power in Germany in 1933 and sow racial and political hatred across Europe, robbing, pillaging, enslaving, and massacring millions, including six million Jews.  No one asked the art market to act like imbeciles and pretend that History did not interfere with the ownership of countless objects which appeared as if by miracle on the American art market and acquired them for themselves or for museums.

Quite frankly, it is astonishing that we are here today, educated as we are, and still wondering why genocide is not sufficient grounds for ridding American museums, galleries and auction houses of looted art and returning it to the rightful owners. Do we think that the US Senate, in all its wisdom, wishes to put an end to justice, when there is no end to justice for crimes against humanity? True enough, objects are not people, but objects belonged to people and helped define their lives, their culture, their identity. Enough.

June 14, 2016

Members of the Senate Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts (*)
224 Dirksen Senate Office Building
Washington, D.C. 20510-6050
Fax: 202-224-9516/ 202-224-9102

Dear Subcommittee members:

The Ciric Law Firm, PLLC represents a number of U.S.-based and European-based clients in connection with the recovery of cultural or religious artifact restitution claims, both in the United States and abroad. Some of these clients have hired us for the purpose of representing them in restitution efforts of artworks looted during the Holocaust and others, including Native American tribes which hired us for the purpose of representing them in restitution efforts of artworks looted in the United States after 1945.

We also represented Léone Meyer in several legal actions (Meyer v. Bd. of Regents of the Univ. of Oklahoma, No. 13-CIV-3128 (S.D.N.Y. May 9, 2013); Meyer v. Bd. of Regents of the Univ. of Oklahoma, No. 5:15-cv-00403-HE (W.D. Okla. Apr. 15, 2015)) involving the restitution of a painting by Camille Pissarro titled “La Bergère Rentrant des Moutons” (1886), which has been on permanent display at the Fred Jones Jr. Museum of Art at the University of Oklahoma. As you may know, in February 2016, a settlement was reached between the parties involving the restitution of the painting to my client, as well as rotating public display between the Fred Jones Jr. Museum of Art and an art institution located in France.

In the absence of this settlement, the Holocaust Expropriated Art Recovery Act of 2016, S. 2763, 114th Cong. (2016) (the “HEAR Act”) would have had a significant impact on the interpretation of the relevant statute of limitation rule in the 10th Circuit, which controls the Western District of Oklahoma, where Meyer v. Bd. of Regents of the Univ. of Oklahoma was filed.

Furthermore, the Ciric Law Firm, PLLC represents the Holocaust Art Restitution Project (“HARP”). HARP is a not-for-profit organization that disseminates information to the public and to claimants about cultural property stolen, confiscated, and misappropriated between 1933 and 1945 during the Nazi-era. HARP’s Chairman is Professor Ori Z. Soltes, who teaches at Georgetown University across a range of disciplines, from theology and art history to philosophy and political history. He is the former Director of the B’nai B’rith Klutznick National Jewish Museum in Washington, DC, where he curated exhibitions on a variety of subjects such as archaeology, ethnography, and contemporary art. Professor Soltes has taught, lectured, and curated exhibitions across the U.S. and internationally. He is the author of over 230 articles, exhibition catalogues, essays, and books on a range of topics. Recent books include: The Ashen Rainbow: The Arts and the Holocaust; Our Sacred Signs: How Jewish, Christian and Muslim Art Draw from the Same Source; Searching for Oneness: Mysticism in Judaism, Christianity and Islam; and Untangling the Web: A Thinking Person’s Guide to Why the Middle East is a Mess and Always Has Been. Professor Soltes was also involved in providing the historical research and background information in regard to Egon Schiele’s “Portrait of Wally” case, as well as the restitution of an Odalisque painting by Henri Matisse to the Rosenberg family.

We want to congratulate you for a very successful hearing which took place on June 7, 2016, titled ‘Reuniting Victims with Their Lost Heritage,’ which focused on the HEAR Act, which we attended.

This bill is not Congress’ first involvement with the Nazi-looted art issue. During the 1990s, the Executive and Legislative Branches of the U.S. Government were concerned with the issue of Nazi- looted artworks finding their way into American Museums. First, the Holocaust Victims Redress Act expressed the “sense of the Congress” that “all governments should undertake good faith efforts to facilitate the return” of Nazi-confiscated property. Pub.L. No. 105-158, § 202, 112 Stat. 15, 17-18 (1998). In addition, during the Clinton Administration, Ambassador Stuart Eizenstat, who was then Under Secretary of State for Economic, Business, and Agricultural Affairs, led the way in urging governments around the world to seek ways to effectuate the policy of identifying art looted by the Nazis and returning it to their rightful owners. In December 1998, following a series of congressional hearings, the U.S. Government had convened a conference of government officials, art experts, museum officials and many other interested parties from around the world in Washington, D.C. to consider and debate the many issues raised by the continuing discovery of Nazi-looted assets, including artworks. The Conference promulgated eleven non-binding principles concerning Nazi-confiscated art, which were adopted by 44 nations. One principle states that pre-War owners and their heirs should be encouraged to come forward to make known their claims to art that was confiscated by the Nazis and not subsequently restituted. U.S. Dep’t of State, the Washington Conference on Holocaust Era Assets, Washington Conference Principles on Nazi-Confiscated Art (December 3, 1998) (available at http://www.state.gov/www/regions/eur/holocaust/heacappen.pdf).

At the same time, the American Association of Museum Directors (“AAMD”) task force drafted its guidelines in the Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945). In addition, the American Alliance of Museums (formerly American Association of Museums, or “AAM”) formed a working group to begin drafting their guidelines, AAM Guidelines concerning the Unlawful Appropriation of Objects during the Nazi Era, issued in 1999.These AAM guidelines specifically provide that:

“Standard research on objects being considered for acquisition should include a request that the sellers, donors or estate executors offering an object provide as much provenance information as they have available, with particular regard to the Nazi era. […]

Where the Nazi-era provenance is incomplete or uncertain for a proposed acquisition, the museum should consider what additional research would be prudent or necessary to resolve the Nazi-era provenance status of the object before acquiring it.

If credible evidence of unlawful appropriation without subsequent restitution is discovered, the museum should notify the donor, seller or estate executor of the nature of the evidence and should not proceed with acquisition of the object until taking further action to resolve these issues.”

Standards Regarding Collections Stewardship (available at http://aam-us.org/resources/ethics-standards-and-best-practices/characteristics-of-excellence-for-u-s-museums/collections-stewardship)

Unfortunately, the June 7th hearings have shown that actions by American museums have been more often than not detrimental to claimants, which is why your intervention continues to be needed.

The implications of the HEAR Act are significant to our clients and that is why we request several important changes to S. 2763 from your Subcommittee. In accordance with the instructions given by the Subcommittee’s Chairman, Senator Cruz, to submit comments before the end of the day, June, 14, 2016, we submit to the Subcommittee the drafting changes to the HEAR Act that our clients have requested. These changes are all included in Exhibit A, which shows the requested changes in redline format.

These requests for changes assume that no language related to the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, H.R. 889, 114th Cong. (2015-2016), described in paragraph 6 of this letter, is considered, either within the HEAR Act, or through a separate bill introduced in the senate during the 114th Congress as some form of quid pro quo in exchange for the passage of the HEAR Act.

1. Definition of the term “artwork or other cultural property”

The current version of the term “artwork or other cultural property” is too narrow and excludes many categories which have been extensively defined and included in other statutes or treaties endorsed by the United States. Therefore, the requested change is the definition of cultural property as articulated in the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, to which the United States is a signatory.

Similarly, the definition of “persecution during the Nazi era” is modified to clarify that the persecution would include activities conducted by Nazi Germany or governments that were allies of Nazi Germany, as well as from countries occupied, annexed or controlled by non-Nazi Axis powers, i.e. Japan and Italy.

2. Sunset provision

A number of archives in Europe, which are usually under governmental control and subject to specific declassification statutes, and that contain critical information about assets looted during World War II, will not be available for public access and research beyond the proposed sunset date of December 31, 2026. Such examples include restrictive rules regarding declassification of archives in France. In France, declassification rules range anywhere from 25 years to 100 years for archives that are relevant to acts if cultural plunder during the period of German occupation of France during World War II.

Documents relevant to national defense secrets involving the disclosure of identifiable individuals are subject to a 100-year disclosure rule. See Loi 2008-696 du 15 juillet 2008 relative aux archives [Law No. 2008-696 of July 15, 2008 regarding archives]. This rule applies to archives related to Vichy Regime leaders who were connected to art-looting activities in France either with or in competition with the Nazis. For instance, archives related to Vichy Prime Minister Laval, whose cabinet bears much of the responsibility for the plunder of Jewish-owned assets including art works, will not become publicly available until 2045 at the earliest.

Furthermore, notarial archives that encompass assets included in estates controlled by notaries (“notaires”) between 1939 and 1945 are to be made public only 75 years after the opening of the estate. See Code du patrimoine [Code of national patrimony], Art. L213-2

See also Loi contenant organisation du notariat (loi 25 ventôse an XI, 16 mars 1803) [Law describing organisation of the notaries (Law of March 16, 1803)] ; See also Décret 79-1037 du 3 décembre 1979 relatif à la compétence des services d’archives publiques et à la coopération entre les administrations pour la collecte, la conservation et la communication des archives publiques [Decree 79-1037 of December 3, 1979 regarding the ability of governmental services managing public archives and the collboration between agencies for the collection, preservation and commmunication of public archives]; See also Loi 2008-696 du 15 juillet 2008 relative aux archives [Law No. 2008-696 of July 15, 2008 regarding archives] ; See also Instruction n°DAF/DPACI/RES/2009/026, 16 décembre 2009 (Circulaire CSN 2009-4 du Conseil Supérieur du Notariat) relatif aux nouvelles dispositions en matière de versement et communication des archives notariales [Instruction n°DAF/DPACI/RES/2009/026 of December 16, 2009 (Circular 2009-4 CSN Superior Council of Notaries) regarding new rules for providing and communicating notarial archives].

Thus, most if not all Jewish estates subject to confiscation and that included looted art will not become available until July 31, 2020 at the earliest.

Researchers will need a period of five to ten years to research those archives, which means that a reasonable sunset provision must include the disclosure date of those archives plus a ten-year research period. Therefore, we request that the sunset provision coincide with the longest period of disclosure of these archives, augmented by a ten year research period, to allow for the proper records regarding Nazi looted art activities to become available for research and to provide the basis for validly supported claims. Hence, the new requested sunset date indicated in the redline version is December 31, 2045 plus ten years, i.e., December 31, 2055.

3. Preserving the Demand and Refusal Rule (as described in Solomon R. Guggenheim Museum v. Lubell, 77 N.Y.2d 311 (1991))

New York claimants who bring claims involving looted or stolen artworks are subject to a statute of limitation rule determined by common law. The court in Solomon R. Guggenheim Museum v. Lubell, 77 N.Y.2d 311 (1991), applied this rule and discussed its importance in claims relating to artwork and New York’s strong public policy interest in ensuring that New York does not became a haven for trafficking in stolen cultural property. A similar policy was described in DeWeerth v. Baldinger, 836 F. 2d 103 (2nd Cir. 1987).

In New York, the statute of limitations for conversion is three years, and the statute of limitations for a claim seeking replevin (the recovery of the specific property, rather than money damages for conversion) is keyed to the conversion’s time limit. In Guggenheim, the Court of Appeals held that, in a claim seeking to recover misappropriated property, the statute of limitations for conversion and replevin only starts to run when the owner makes a demand which is refused, unless a demand would have been futile. The demand and refusal rule had been set forth in earlier New York cases, but Guggenheim reiterated it along with a discussion of its importance in claims relating to artwork in view of New York’s strong public policy interest in ensuring that New York does not become a haven for trafficking in stolen cultural property.

Claimants in “demand and refusal” jurisdictions are going to lose their ability to bring cases based on the statute of limitation grounds if there is a six-years-from-discovery rule, instead of three-years-from-demand-and-refusal rule.

This change will have a “real-life” impact on several of our clients. For instance, we currently represent a European client who has claims for objects transported through New York against a Museum institution in the United States, as well as a client who has potential claims for an object located in a major New York art museum. Both of these clients’ claims would be directly threatened under the new statute of limitations rule defined in the HEAR Act. However, both of these clients would be able to bring their claims under the current Guggenheim rule. For this reason, we request that the bill include language excluding any forum where the statute of limitation rule would be controlled by Solomon R. Guggenheim Museum v. Lubell, 77 N.Y.2d 311 (1991) or by DeWeerth v. Baldinger, 836 F. 2d 103 (2nd Cir. 1987).

We believe that this drafting is clearer than language mentioning “any applicable State statute of limitations […] more favorable to the claimant,” as such an approach is likely to introduce uncertainty for a judge as to which criteria to adopt to consider a more favorable statute of limitations.

4. The HEAR Act’s sunset provision may be used by defendants to eliminate any claim in New York after 2026

As written, the HEAR Act expires on December 31, 2026. If a claimant files a claim after this date in New York or in another jurisdiction that relies on the statute of limitation rule defined in New York, it is almost certain that defendants will challenge this claim as negatively affected by the legislative history of the HEAR Act, which already includes the statement made by Senator Cornyn during the hearings that “the ability to find art is better now and claimants should be given a chance, but that chance should not last forever.”

Therefore, we request that Section 5 of the bill restate that, upon the expiration of this Act on December 31, 2055, all statute of limitation rules in existence prior to the enactment of this Act shall remain in effect, and that, after December 31, 2055, a claimant not be barred from bringing a claim or cause of action under the statute of limitation rules in existence prior to the enactment of this Act.

If this is what the Subcommittee meant, but did not confirm during the hearings, then I am sure that the Subcommittee members will not mind reiterating that position in the proposed bill.

5. Laches defense

During the hearings, all committee members confirmed that the goal of the HEAR Act was to ensure that plaintiffs would be able to present their case on the merits rather than having to deflect so-called technical defenses. Defendants in Nazi-looted art cases routinely raise the laches defense, based on the notions that a plaintiff’s claim may be barred when “(1) there has been an unreasonable delay in asserting the claim, and (2) the defendant was materially prejudiced by that delay.” See Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997).

As most witnesses testified during the hearings, it is ludicrous to argue that plaintiffs in Nazi-looted art cases routinely entertain “unreasonable delays” in asserting their claims, since archives are by design frequently unavailable, and have only been recently made available through digitization efforts. Furthermore, any museum can argue that it was prejudiced by the delay in asserting a claim, since it risks losing significant works in its collection, even though a museum defendant may never have complied with the codes of ethics issued by AAM or by AAMD, whereby member museums are required to perform proper due diligence and provenance research.

Since the laches defense can be applied on a discretionary basis by a judge regardless of the statute of limitations defense, and in fact defeat the congressional intent to entertain claims on the merits by simply applying the laches defense to any case, it remains critical to achieve the legislative intent of the bill to clearly eliminate the laches defense. Therefore, we request that the HEAR Act specifically bar defendants from invoking the laches defense until the sunset provision kicks in.

6. The negative impact of the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act’s inclusion in the HEAR Act

We understand that several senators, including Senator Hatch, may intend to include the language of the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, S. 2212/H.R. 4086, 112th Cong. (2012), H.R. 4292, 113th Cong. (2013), H.R. 889, 114th Cong. (2015-2016) into the HEAR Act or attempt to pass a Senate version of the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, H.R. 889, 114th Cong. (2015-2016) before the end of the 114th Congress. In the event of such a development, this firm and all of our clients shall withdraw any support for the HEAR Act, but will also publicly oppose the resulting bill.

Significant and widespread opposition arose after the introduction of each iteration of the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, S. 2212/H.R. 4086, 112th Cong. (2012), H.R. 4292, 113th Cong. (2013), H.R. 889, 114th Cong. (2015-2016). For your information, we are attaching in Exhibit B the main objections to this bill when it was presented before the House of Representatives pertaining to H.R. 4292.

Since the repeated defeats of S. 2212/H.R. 4086 and H.R. 4292, two new developments will render the passage of a senate version of H.R. 889 significantly problematic, in fact absurd, especially if its passage in Congress were to be tied directly or indirectly to the passage of the HEAR Act.

– First, under Protect and Preserve International Cultural Property Act, Pub. L. No. 114-151 (H.R.1493, 114th Cong. (2015)(enacted)), the executive branch has the power to apply “import restrictions with respect to any archaeological or ethnological material of Syria.” Imagine the following hypothesis: an archeological object illicitly extracted from Syria and sold to an American collector is blocked at the border under Pub. L. No. 114-151. On the same day, an archeological object illicitly extracted from Syria UNDER THE SAME CIRCUMSTANCES, but sold instead to a European collector who then donates it to a European Museum organizing a temporary exhibit in the U.S., would not only be protected from any seizure, but could not be the subject of any claim in the U.S. if H.R. 889 becomes law.

– Second, this firm represents the Hopi tribe in its quest to seek the restitution of its religious artifacts currently being sold at auction in France. As you also know, these religious artifacts cannot be extracted from tribal land, exchanged, sold or otherwise transferred without the consent of the tribes. See Antiquities Act of 1906, 16 U.S.C. §§ 431-433 (2014); Archaeological Resources Protection Act of 1979, 16 U.S.C. §§ 470aa-470cc (2014); Native American Graves Protection and Repatriation Act of 1990, 25 U.S.C. §§ 3001-3002 (2014); Arizona Antiquities Act of 1960, Ariz. Rev. Stat. Ann. § 41-841-41-844 (2014). Imagine the following hypothesis: a tribal religious object is illicitly extracted from tribal land, sold in France to a private collector who sought to import it back to the U.S. That individual would be subject to prosecution under the provisions indicated above. See also United States v. Corrow, 119 F.3d 796, 804 (10th Cir. 1997); United States v. Tidwell, 191 F.3d 976, 981 (9th Cir.1999). The same day, a tribal religious object–illicitly extracted from tribal land UNDER THE SAME CIRCUMSTANCES, but sold instead to a French collector who then donated it to a European Museum organizing a temporary exhibit in the U.S.–would be not only protected from any seizure, but could not be the subject of any claim in the U.S. if H.R. 889 were to become law. The Hopi tribe would have to face the humiliation of being barred from making any claim while their religious object was ON AMERICAN SOIL.

It goes without saying that, should the HEAR Act, including or incorporating any language related to H.R. 889, make any progress in Congress, or should any bill similar to H.R. 889 be considered during the 114th Congress as a result of any direct or indirect quid pro quo between H.R. 889 and S. 2673, it will constitute a material fact which may impact the support or position of any witness who testified during the June 7th hearings.

Furthermore, such a material development will encounter, not only the same opposition from groups that came forward in 2012, but will probably garner significant additional opposition from other groups such as archeologists who supported H.R.1493, as well as from indigenous groups and American tribes, who are significantly frustrated by the lack of response from the U.S. Department of the Interior and the U.S. Department of Justice regarding the French auction sales of their tribal objects.

We reiterate our strong objection to H.R. 889-related language, either through the HEAR Act or through a separate bill introduced in the senate during the 114th Congress.

If you have any questions please let me know. Thank you in advance for your support.

Sincerely yours,

____________________________________________

Pierre Ciric

Member of the Firm

Cc: Ori Z. Soltes
Director, Holocaust Art Restitution Project, Inc.
c/o 5114 Westridge Road
Bethesda, MD 20816-1623
By e-mail: orisoltes@aol.com