Month: September 2026

The Art Institute Chicago Schiele Ruling and the Limits of Object-First Enforcement

On Thursday the New York Appellate Division, First Department handed the Art Institute of Chicago a significant win in its long dispute over Egon Schiele’s Russian War Prisoner. Graham Bowley and Tom Mashberg’s report in the Times frames it as a blow to the Manhattan DA’s investigators. I’d go a step further. This ruling lands on the signature feature of the Antiquities Trafficking Unit’s method, which is that it goes after the objects first and worries about the people later.

Egon Schiele, "Russian War Prisoner" (1916), watercolor over graphite on cream paper. It shows the head and hand of a uniformed Russian prisoner of war, with the artist's signature at lower right.
“Russian War Prisoner” by Egon Schiele, via Manhattan District Attorney

To be precise about what the court did: it did not decide that the Art Institute owns the drawing. It didn’t decide that the drawing was looted, or that it wasn’t. It decided that a turnover order under Penal Law § 450.10 was the wrong tool for a sharply contested ownership dispute. The court vacated the warrant and the orders requiring the museum to surrender the work, and it said in terms that its decision shouldn’t be read as a determination of the rightful owner. It sent the title question to the earlier-filed civil case in federal court in the Southern District of New York.

matter-of-art-institute-of-chicago-app-div-2026-09-17Download

A quick recap

Fritz Grünbaum was a Viennese cabaret performer and an outspoken critic of the Nazis. He was arrested in March 1938 and died in Dachau in 1941. His collection of dozens of Schiele works was inventoried by the Nazis, and then, for the most part, vanished from the record until 1956, when pieces surfaced with the Swiss dealer Eberhard Kornfeld. Some went on to Otto Kallir’s Galerie St. Etienne in Manhattan, and Russian War Prisoner was ultimately bought by the Art Institute in 1966.

The DA’s Antiquities Trafficking Unit took an interest after Grünbaum’s heirs came to them in 2022. In September 2023 authorities in New York seized the drawing in place at the Art Institute, along with two other works in Pittsburgh and Ohio, on the theory that they were stolen from Jewish families by Nazis. The other two institutions, the Carnegie and Oberlin’s Allen Memorial, returned their Schieles in January 2024. The Art Institute did not, and the museum insisted the work was not looted but lawfully sold by surviving family members after the war.

Picture of a man in a suit, black and white, autographed.
Fritz Grünbaum, Österreichisches Theatermuseum, public domain photograph via https://commons.wikimedia.org/wiki/File:Fritz_Gr%C3%BCnbaum.jpg

Meanwhile the heirs’ separate civil suit had been dismissed by Judge Koeltl as time-barred, a ruling he declined to revisit in February 2024. In April 2025, Justice Drysdale sided with the DA. The ruling ran 79 pages and described the drawing as stolen property for the last 86 years. She reached that conclusion without an evidentiary hearing.

Why the appeals court said no

For a first-year-property-class reason, mostly. Section 450.10(5) says stolen property that comes into a court’s custody is to be delivered to the owner “on satisfactory proof of his title.” The Appellate Division reads that as a mechanism for quickly returning property to an obvious owner, not as a way to adjudicate a hotly contested title. The statute doesn’t say who decides title, what procedure applies, or who bears what burden. And the court leaned on a 1913 Court of Appeals decision, People ex rel. Simpson Co. v. Kempner, which said a title dispute between contending parties “must be determined in a civil action,” with notice, a hearing, and a jury if demanded.

The court was also unimpressed by the DA’s description of what happened below as “summary judgment-like.” There were no pleadings, no meaningful discovery, and no defined burdens of proof. And because the turnover orders can’t be appealed directly, the Art Institute could only get review through an Article 78 petition for a writ of prohibition. The court treated a deprivation of property without due process as the kind of clear legal right that makes that extraordinary remedy appropriate.

The object-first model

Here is what I think matters beyond this one drawing. According to the opinion, the DA told the court that New York County judges have signed more than 100 turnover orders, returning more than 4,000 antiquities and artworks. The NY Times reports how those cases typically end: rather than bring criminal charges and face potentially lengthy cases, investigators negotiate agreements, and the holders usually hand over the objects without contesting that they were stolen.

That is an object-centered model, and it has been enormously productive. In its statement to the Times, the DA’s office pointed to the return of more than 6,000 stolen artifacts. But the same statement cites 18 convictions. I don’t want to be unfair about that comparison, because convictions and objects measure different things. Still, it captures a pattern I wrote about after the Worcester seizure : the objects are returning to where they were taken from, but the prosecution of the individuals responsible has lagged well behind.

The object-first approach worked because it let everyone skip the hard part. A holder who cooperates gets no charge, no trial, and a quiet press release. The office gets the object and a headline. Nobody has to prove that a particular person committed a particular crime, and nobody has to adjudicate title. The Art Institute is, so far as I can tell, the rare possessor to refuse the deal and then follow through on the refusal, all the way to a writ of prohibition. The opinion also notes that the DA brought no criminal charges in connection with the work.

Why Schiele works are so contested

This is the part I think a general audience finds most interesting, and the reasons pile up.

First, the objects are portable and the paper trail is thin. Schiele’s works on paper are small, easy to move, and were easy to lose track of in the mass spoliation of 1938 to 1945. The Nazi inventory of Grünbaum’s property listed 81 Schiele pieces but, as the court notes, did not list Russian War Prisoner by name. Identifying a specific drawing with a specific line in a wartime inventory is a big part of the fight.

Second, there is a gap and a story to fill it. Nothing is documented between 1938 and 1956. Kornfeld filled it by saying he had bought the works from Grünbaum’s sister-in-law, Mathilde Lukacs. The Appellate Division in Reif v. Nagy did not credit that account, and this opinion recites why: no documentation of a transfer, no mention of Lukacs in earlier catalogues, and a claim made decades after the fact. The Art Institute still relies on the Lukacs account, as does the museum’s position that the family lawfully sold the work. That account has worked before: in Bakalar v. Vavra, the heirs lost a case involving a different Grünbaum Schiele on laches grounds, which is a reminder of how much turns on which court you’re in and which doctrine is doing the work.

Third, the money. The Grünbaum heirs sold six Schieles at Christie’s in fall 2023, and four of them collectively fetched $18 million. That helps explain both why heirs pursue these works so persistently and why holders defend them so hard.

Fourth, the New York connection. Kallir’s Manhattan gallery handled a good number of these works after the war. That’s what gives a New York prosecutor a jurisdictional hold on a drawing that sat in Chicago for sixty years, and it is exactly the connection the Art Institute has challenged.

Finally, the Art Institute’s own conduct. The opinion recites that there’s no record of a provenance check in 1966, and that in 2002 a museum intern asked Kornfeld about the work and there is no record the museum ever tried to independently verify his answer. The Second Circuit, when it revived the civil suit in March 2025 in a non-precedential summary order, said the Art Institute isn’t an ordinary non-merchant purchaser but a sophisticated one with expertise in Nazi-looted art. Nothing in this week’s decision undercuts that.

The reaction

The museum welcomed the ruling, telling the NY Times that the court rejected an unlawful attempt to use the criminal process to resolve disputed property rights, and that the matter belongs in civil court. The DA’s office said it is reviewing the decision and evaluating next steps. Two museum groups, the Association of Art Museum Directors and the American Alliance of Museums, had filed a joint brief supporting Chicago.

Nicholas O’Donnell, who represented a family that turned over another artwork in 2024, told the NY Times the decision “sharply reduces the D.A.’s ability to pursue the seizure of cultural property.” As the NY Times summarizes his view, owners accused of holding stolen art could now decline to hand it over unless a criminal case is brought, a crime is proven, and title is fully adjudicated. Raymond Dowd, who represents one of the Grünbaum heirs, sharply criticized the reasoning, comparing the objects to contraband that police can seize the way they seize drugs or drug money. Legal experts told the NY Times it is unlikely that holders who already returned works would try to reopen those seizures.

The ruling doesn’t just slow the DA down. It changes the price of contested cases. Where a holder disputes title, the shortcut is closed, and the office has two choices: bring a criminal case against someone, or send the claimants to civil court. That pushes toward what I’d argue was always the harder and more important work, which is investigating and prosecuting the dealers, middlemen, and facilitators who moved this material.

That work has its own problems. In the Schiele story, the central figures are dead. Kallir died decades ago, and Kornfeld is described in recent reporting as the late dealer. The trial court itself noted that every witness with first-hand knowledge of the wartime events had died. You can’t indict a dead man, and a “continuing conspiracy” theory of the kind the trial court accepted is a long way from a case a prosecutor can try. Proving a crime against a living person means proving what that person knew, and gaps in provenance, however damning they look to us, are not the same thing. So for Nazi-era claims like this one, the civil courts really may be the only place a resolution is possible, which is more or less what the Appellate Division said.

The picture is different for the antiquities trade the unit built its reputation on. There, the dealers, collectors, and trusts are often alive, the records are more recent, and the networks are the story. If the office is now pushed away from the easy object-first seizure, the question is whether it has the appetite and the resources to build cases against people. I hope so. The illicit market runs on the individuals who supply, launder, and buy them.

There is a fair case on the other side, too. Dowd’s point deserves a serious answer: police do seize contraband without a trial, and a museum drawing with a disputed, decades-old chain of title is arguably not the same thing as a looted Cambodian statue. Voluntary returns will also presumably continue. Many holders return works because they don’t want the fight, not because a statute compels them, and nothing in this ruling stops that. And it’s possible that the unit will simply reach for other tools. The DA said only that it is evaluating its next steps.

Procedurally, the Appellate Division stayed enforcement for 30 days, and the grand jury investigation can continue. The action that matters now is in federal court, where the case has been stayed pending this decision. There the parties will have what the Appellate Division said was missing: discovery, defined burdens, and a real fight over the evidence. For the heirs, who have waited nearly two decades, that is at once a setback and a chance to finally litigate the merits.

I’ll be watching for whether the next big move from Manhattan is another seizure, an appeal or something else. And nothing here would prevent the parties from coming to some kind of truce and settling their dispute outside of court.

Many thanks to the reporters who’ve followed this for years, especially Graham Bowley and Tom Mashberg at the Times, and The Art Newspaper.

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From Viking Silver to Washington: Who Gets to Decide What Survives?

It has been an unusually revealing week for cultural heritage law.

In Iran, conservators are racing to stabilize historic buildings damaged during the war. In Denmark, a homeowner digging a new terrace discovered the largest known Viking Age silver hoard in the country. In Florida, federal investigators are beginning the daunting work of identifying more than 22,000 antiquities seized in an ongoing smuggling investigation. And in Washington, the physical fabric of national cultural institutions continues to be remade, from the demolished East Wing of the White House to the removal this week of Joel Shapiro’s Blue from the Kennedy Center.

These stories arise from very different legal settings. Together they offer a useful reminder of what cultural heritage protection actually requires: good rules, capable institutions, expertise, and enough time to act before something important disappears.

The most sobering story comes from Iran. Sarvy Geranpayeh reports in The Art Newspaper that Iranian heritage officials have recorded damage to 149 historic monuments across 18 provinces and 29 cities following the US-Israeli strikes that began in February. Among the damaged sites are the Golestan Palace in Tehran, the seventeenth-century Chehel Sotoun Palace in Isfahan, and part of the Trans-Iranian Railway, all associated with UNESCO World Heritage inscriptions.

At Golestan Palace, a team of specialists collects, sorts and codes shattered wooden and decorative fragments Ministry of Cultural Heritage, Tourism and Handicrafts

The details of the conservation work are especially striking. At Golestan Palace, specialists are collecting, sorting, and coding shattered wooden and decorative fragments. Damaged roofs are being repaired before autumn rain causes another round of harm. At Chehel Sotoun, crews have stabilized damaged sections and removed hazards. Specialists repaired the Trans-Iranian Railway quickly enough to restore operations. Iranian officials estimate damage to the heritage sector at about 7.5 trillion tomans, roughly $40 million at current exchange rates. This is the less glamorous side of cultural heritage protection.

Iranian officials have been communicating with UNESCO, the secretariat of the Hague Convention, and other international bodies. They are also compiling technical documentation for possible compensation claims and international legal proceedings. Farhad Azizi Zelani, Iran’s director general of national and world heritage sites, draws a broader lesson from the experience: international instruments need effective implementation and a rapid response when cultural property is threatened.

That is an important point for the broader law of armed-conflict heritage protection. A treaty supplies a framework. The resilience of cultural property also depends on institutions capable of using it.

Photo: North Jutland Museums / Nordjyske Museer

A very different story from Denmark: A homeowner in Rebild set out to build a terrace and instead found enough Viking silver to make archaeologists everywhere reconsider the attractions of yard work. The newly discovered hoard contains about 700 tenth-century objects and fragments weighing nearly 18.5 kilograms, including silver bars, bracelets, 47 whole coins and coin fragments, a small Thor’s hammer, and pieces of cut silver. The Art Newspaper reports on the discovery here, while Nordjyske Museer provides an excellent account of the find and its archaeological significance.

The objects reveal an economy tied to a very large world. The hoard contains both Arabic and Anglo-Saxon coins. Much of the silver was apparently valued by weight rather than by the identity of the object itself. The bars, broken jewelry, coins, and silver fragments offer evidence of trade networks linking Scandinavia with England and the Islamic world during a period when the Danish kingdom and Christianity in Scandinavia were taking shape.

The legal response is almost as interesting as the discovery. Under section 30 of the Danish Museum Act, objects from the past that possess valuable material or special cultural-historical significance can constitute danefæ, or treasure trove. Qualifying finds belong to the state and must be turned over to the National Museum. The finder receives compensation based on the material value and rarity of the objects and, importantly, “the level of care” used in securing the find. The National Museum of Denmark explains the reward system here.

That last factor matters. Denmark has built an incentive into the law for a finder to protect archaeological information rather than simply extract valuable objects from the ground. The Rebild finder realized he had encountered something significant, proceeded carefully, and the find entered an archaeological and museum system. The result preserves the objects and much of the knowledge they carry.Compare that sequence with what happens after antiquities have entered illicit commercial channels.

ICE Seizes 22,000 Antiquities in Florida

Hyperallergic reported this week on the extraordinary seizure of more than 22,000 artifacts by Homeland Security Investigations in Florida. HSI announced the seizure on August 28 and described it as among the largest in the agency’s history. Preliminary assessments suggest some of the objects are between 1,000 and 5,000 years old and originated in Europe, Africa, the Levant, and the eastern Mediterranean. Researchers from the University of South Florida and the University of Pennsylvania are assisting with identification, authentication, and conservation.

At this stage, there is still a great deal we do not know. Authorities have said little publicly about the suspected trafficking network, the provenance of individual objects, possible source countries, or eventual repatriations. With 22,000 objects, sorting those questions will take considerable time.

This is the recurring difficulty with antiquities enforcement. Recovery gets the object back into responsible custody. Archaeological context may already have vanished. Investigators and scholars then have to reconstruct histories of excavation, ownership, export, and import from whatever evidence remains.

The institutional juxtaposition identified by Hyperallergic is also difficult to miss. HSI has developed considerable expertise in cultural-property investigations and repatriations. Elsewhere within the Department of Homeland Security, border construction has recently damaged the Las Playas Intaglio archaeological site in Arizona, while preservation and environmental requirements have been waived for other border projects that may affect archaeological resources. Somehow, one federal department can simultaneously contain sophisticated cultural-property enforcement and activities that put cultural resources at risk.

Which brings us to Washington D.C. The East Wing of the White House was demolished between October and December 2025 as part of the project to construct a new East Wing containing a ballroom and underground military facilities. Adam Gopnik’s essay on the demolition in The New Yorker remains one of the better pieces of writing about why the loss generated such a strong response. His central insight is that architecture carries political meaning. The White House accumulated meaning because presidents inherited it temporarily. Alterations to a building like this therefore implicate process, stewardship, and institutional continuity as well as architectural taste.

There is an especially revealing legal wrinkle now. On August 31, the Supreme Court divided 5–4 in National Park Service v. National Trust for Historic Preservation and stayed a lower-court injunction that had restricted above-ground construction. The Court’s per curiam opinion emphasized standing. It concluded that the government was likely to succeed in showing that the National Trust lacked a sufficiently concrete and particularized injury to challenge the project and that the remaining stay factors favored the government. The Court expressly said that it was not deciding the legality of the East Wing project itself. The Court’s opinion is available here.

Chief Justice Roberts, joined by Justices Sotomayor, Kagan, and Jackson, dissented. His opening conclusion was unusually direct: “That construction is likely unlawful.” Roberts pointed to 40 U.S.C. § 8106, which prohibits construction of a building or structure on federal public grounds in the District of Columbia without express congressional authority. In his view, Congress had supplied no such authority for the ballroom project.

The standing dispute may prove important for preservation law well beyond this particular building. Historic-preservation organizations often rely on members whose use and enjoyment of historic places supply the injury necessary to get into federal court. A rule that treats an architectural or historic injury largely as disagreement with government aesthetics could make some preservation challenges considerably harder to bring. There is also a simpler lesson here. By the time the case reached the Supreme Court, the East Wing was already gone. Preservation law has always struggled with remedies because demolition can happen quickly.

Another removal in Washington this week raises a related set of questions. On Wednesday, September 2, National Park Service crews dismantled Joel Shapiro’s Blue, the 24-foot painted-aluminum sculpture installed at the Kennedy Center’s REACH campus in 2019. Shapiro had described the animated, angular figure as a “celebration of possibility.” He gifted the sculpture to the Kennedy Center as a permanent installation. The Washington Post’s reporting on the removal is particularly useful, as is Hyperallergic’s account of the deinstallation.

Critics Slam “Petty” Removal of Joel Shapiro Sculpture From Kennedy Center

The Kennedy Center offered no advance public explanation for the decision. It said that the Joel Shapiro and Ellen Phelan Foundation would decide where the sculpture is installed next. Former Kennedy Center curator Josef Palermo gave the Post a more pointed account. He said he had previously been instructed to “get rid” of outdoor artwork because President Trump wanted an entirely new collection when the Center reopened after renovations. Palermo did not recall Blue being singled out individually.

The photographs of the sculpture being taken apart invite a moral-rights question, and I may return to that issue in a separate post.

There is an important wrinkle at the outset. Shapiro died on June 14, 2025. For a work of visual art created after the Visual Artists Rights Act (VARA) took effect, 17 U.S.C. § 106A provides that the federal rights of attribution and integrity last for the life of the author, with the statutory term running through the end of the calendar year in which it otherwise expires. Shapiro’s VARA rights therefore expired at the end of 2025, months before Blue was removed.

That makes Blue a potentially useful case study in the limits of American moral rights. Had Shapiro still been alive, the facts would invite questions about destruction or modification, removal from a site for which a work was given as a “permanent installation,” and the uneasy treatment of site-specific art under VARA. The First Circuit’s decision in Phillips v. Pembroke Real Estate—which of course does not bind courts in Washington—famously concluded that VARA does not protect site-specific art as such. Those questions deserve more space than I can give them here.

For now, the larger pattern is enough. Cultural heritage law is sometimes treated as a field concerned with old things: temples, archaeological sites, ancient coins, museum collections, historic buildings. Yet heritage becomes vulnerable in the present. The differences among these stories matter. So does the common question beneath them: who gets to decide what survives, and through what process?

Good heritage law creates time for expertise before an irreversible decision. It records what has been found and what has been lost. It creates incentives for responsible behavior. It gives institutions the authority and resources to conserve. And, at its best, it recognizes that stewardship carries obligations to people who will encounter these places and objects long after the present decision-makers are gone. Once the bulldozers arrive, or an archaeological context has been scattered, the law has considerably less to work with.

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