St. Louis Art Museum Sues the United States to Preclude a Forfeiture

The Ka Nefer Nefer Mask, acquired in 1998 by SLAM

The St. Louis Art Museum (SLAM) has sued the federal government to preclude it from initiating a forfeiture claim against the Ka-Nefer-Nefer mask. The museum was approached in January by several U.S. attorneys in January, who indicated an intention to bring a forfeiture action against the mask. Civil forfeiture was the legal mechanism under which the Portrait of Wally litigation and subsequent settlement emerged. It is a powerful tool for claimants, which uses the resources of the federal government, and a favorable burden of proof, to pursue claims for objects which may have been looted or stolen.

But in this case, rather than waiting for the forfeiture action, the museum has decided to try to preclude a suit by the U.S. attorneys, arguing that from December-January of 2005-06, the U.S. was a party to several communications regarding questions with respect to the history of the mask. They use as examples, posts and emails sent by Ton Cremers, of the Museum Security Network. He sent at least two emails to Bonnie Magness-Gardiner of the FBI, INTERPOL, as well as James McAndrew at Immigrations and Customs Enforcement (ICE). The Museum’s complaint quotes emails from Cremers, which were published on the Museum Security Network:

  1. “So I should think that if the Egyptian Government lodged a complaint or request with the USA Government and the FBI Crime Team (to which I am copying this), then the Museum would be obliged to answer the questions.”  
  2. “The FBI is just waiting for Egypt to file a complaint.  A [sic] soon as Egypt files a complaint [sic] the FBI is expected to act.” 
  3. “Maarten Raven, a Dutch archaeologist, saw the mask in the Saqqara and is VERY positive that the mask in the SLAM [Museum] is the same as . . .the one stolen in Saqqara . . . .

The SLAM argues in the complaint that the relevant U.S. government officials had knowledge of the potential claim over five years ago, and the five-year statute of limitations period has expired under 19 U.S.C. § 1621. A court will decide whether these emails, and queries the Museum sent to INTERPOL in the 1990’s about the mask are sufficient to have given the U.S. government actual or constructive knowledge of the potential claim. The Museum seeks a declaratory judgment under the Tariff Act that the action is barred by the statute of limitations.

Even if successful, this suit would only preclude a suit by the U.S. government. It would not bless the circumstances surrounding the acquisition of the mask. The mask was acquired in 1998 by SLAM from Phoenix Ancient Art for a reported $500,000. The Museum has attempted to demonstrate its diligence in a number of ways when it acquired the mask.

  • It sent a letter to Mohammed Saleh, the retired director of the Cairo Museum asking about the mask or the existence of similar objects. 
  • The Museum contacted the Art Loss Register, INTERPOL, and the International Federation of Art Research.
  • In 1998″counsel for the Museum requested a Swiss attorney to conduct a background investigation of Phoenix, its owners, and Jelinek.  Museum counsel received responses from the Swiss attorney on February 18 and March 31, 1998, confirming a Suzana Jelinek resided at the address provided by Phoenix, and confirming Phoenix’s company existence, Dun & Bradstreet rating, and that there were no liens or encumbrances on business property belonging to Phoenix.”
  • The Museum also sent a letter to the Missouri Highway Patrol requesting a search of the Interpol database.
So these are efforts to look at the history of the object, but certainly are not the best efforts. The Museum did not contact the Supreme Council of Antiquities or the Culture Ministry. The SLAM has told the public and Egypt that they would return the mask to Egypt if they were presented evidence that the mask was looted or stolen, yet Egypt has not presented this evidence. We know that the mask was acquired by the Museum in 1998, and was excavated in 1952. Both Egypt and the Museum have very different versions of the subsequent history of the mask. We are not certain what happened in the intervening years. But given what we know about the antiquities trade we have strong suspicions. The Museum argues the U.S. government has waited too long to pursue its claims that the object was stolen. 
  1. Joe Harris, Museum Sues USA Over Mummy Mask, Courthouse News Service, February 16, 2011, http://www.courthousenews.com/2011/02/16/34223.htm (last visited Feb 16, 2011).
  2. Jennifer Mann, Art museum sues to keep Egyptian mummy mask, St. Louis Today, February 16, 2011, http://www.stltoday.com/news/local/crime-and-courts/article_6a5937bc-0ea6-50ca-94ab-aa45697af009.html (last visited Feb 16, 2011).
Questions or Comments? Email me at derek.fincham@gmail.com

Will the Supreme Court Take Up Nazi-era Limitations Periods?

It might.  The U.S. Supreme Court has asked the Solicitor General to submit a brief on the issue of whether states can enact more permissive limitations rules when they may conflict with the foreign affairs doctrine.  Marei Von Saher has been pursuing her claim against the Norton Simon Museum over these two works by Lucas Cranach the Elder.  Von Saher is seeking certiorari with the Supreme Court—and the court has not granted review, it just wishes to hear the position of the federal government first, before deciding whether to review the case. 

The 9th Circuit Court of Appeals ruled earlier this year that California may not set aside special rules for Nazi-era claims because it conflicted with the federal government’s ability to govern foreign affairs.  The claimant Marei Von Saher is the successor in interest to Jacques Goudstikker who bought the works in a 1931 auction in Berlin. The works remained there in Amsterdam until 1940 when the Nazis instituted a forced sale. After the war, Desiree Goudstikker reached a settlement with the Dutch government. She received some of her husband’s inventory, but did not claim another set of works because that would have meant returning the purchase price received from the Germans.

The Dutch government transferred these Cranachs to George Stroganoff-Scherbatoff, the descendant of a noble Russian family who was thought to have lost the paintings to the Bolsheviks during the Russian Revolution.  Stroganoff-Scherbatoff sold these works to the Norton Simon Museum in 1971.  The 9th Circuit held first that California’s special limitations rule for works looted during the Holocauset era, Sec. 354.3 conflicts with the foreign affairs doctrine.  Though it does not conflict with Executive Branch policy via the President, it does conflict with a power reserved to the Federal government, as California created a “world-wide forum for the resolution of Holocaust restitution claims”. 

As a consequence, the claim was left to general limitations principles.  In California the Discovery Rule applies.  A claimant must bring her action within three years of discovering her claim.  This means actual discovery, but also when a reasonably prudent claimant should have discovered she had a claim, and the work first went on display in 1977. 

Yet even if the Supreme Court denies certiorari, Von Saher may have recourse under the new limitations period rules recently signed into law by Gov. Schwarzenegger, which attaches an actual discovery date on the beginning of an action, eliminating the sometimes difficult due diligence requirement.

Gov. Arnold Schwarzenegger last week signed into law a new art-theft bill that doesn’t mention the Holocaust but gives all claims seeking the return of stolen art from museums, galleries and dealers a better shot at withstanding the legal argument that they were filed too late. In suits over allegedly stolen art and other scientific, historic and cultural artifacts, the statute of limitations has been extended from three years to six, and the six-year clock starts running when the plaintiff first learned where the object was. Previously, a museum could argue that the clock began running when a work’s whereabouts was first publicized to the extent that someone seeking its return should have known about it then.

“Adam and Eve”  went on display in 1977 when the Norton Simon opened, prompting Los Angeles Times art critic William Wilson to write that he had experienced “a plain shock of unmitigated aesthetic fulfillment” upon seeing them. Museum founder Norton Simon bought the Cranachs from an heir of Russian aristocrats in 1971, and The Times first reported on them in 1972, saying they were among the industrialist’s holdings that were being loaned to Princeton University for an exhibition.

Von Saher’s attorney, Lawrence Kaye, said Monday that her legal team, which includes E. Randol Schoenberg, the Los Angeles attorney who in 2006 secured the return of five looted Gustav Klimt paintings from the Austrian government, will wait to see whether the U.S. Supreme Court reinstates the voided California Holocaust art law. If it does not, she would be able to amend her suit to proceed under the state’s new art-theft law. But the new law also would allow the Norton Simon Museum to use legal grounds other than the statute of limitations to press its argument that Von Saher waited too long to claim “Adam and Eve.”

  1. Mike Boehm, Norton Simon’s disputed ‘Adam and Eve’ getting closer look from Supreme Court | Culture Monster | Los Angeles Times (2010), http://latimesblogs.latimes.com/culturemonster/2010/10/art-adam-eve-holocaust-norton-simon-.html (last visited Oct 5, 2010).
Questions or Comments? Email me at derek.fincham@gmail.com

Unsuccessful Restitution Suit by German Museum

An ancient gold tablet excavated in Iraq from the site of an ancient Assyrian temple by German archaeologists in 1913
An Ancient gold tablet, excavated from Northern Iraq in 1913.

A German Museum has lost an action against Riven Flamenbaum to recover this ancient gold tablet that may be worth as much as $10 million.  You can read the opinion here, in Matter of Flamenbaum, File No. 328416

The tablet has quite a history.  It was unearthed in 1913 in Ashur, present day Qual’at Serouat by German archaeologists.  It was bound for a German museum, but World War I forced the ship carrying it to Portugal, where the object was stored until 1926.  In 1934 the tablet was put on display in the Vorderasiatisches Museum.  At the end of the war, in 1945 it was discovered the tablet was missing, perhaps looted by Soviet troops.  It is at this point that Flamenbaum—a survivor of Auschwitz—encountered the tablet, which he may have purchased on the streets of post-war Berlin for some cigarettes.  He took the tablet with him when he emigrated to New York in 1949.  He had no inkling of the object’s value, after it had been apparently appraised for as little as $100 at one point.  The family contacted the Museum in 2006 after Flamenbaum’s death, and the museum brought suit to recover the tablet. 

In New York, this action was within the statute of limitations because the period does not begin to run until an original owner demands an object and is refused—which in this case was 2006.  However Surrogate John Riordan held that the museum had waited too long to bring this claim under the doctrine of laches—an equitable doctrine which essentially posits that it wouldn’t be fair to allow the claimant to regain title.  The court held the lack of any real effort by the museum to seek the return of the tablet was unreasonable.  Surrogate Riordan placed a good deal of weight on an apparent 1954 report of the object’s location.  But the opinion does not offer any details of this report. 

The Museum had not really had possession of the tablet for very long, and had not made extensive efforts to contact post-war authorities or stolen art registries.  But of course it is not necessarily clear if those efforts would have even been successful.  Moreover, in some cases publicizing a theft in this way seems to run counter to the policy which underpins New York’s Demand and Refusal rule.  If you publicize the theft, that recovery may make diligence less likely, and might encourage other possessors of objects with questionable histories to move objects to other jurisdictions. 

One wonder perhaps how much the underlying equities were a factor in the decision as well, with a seemingly-innocent Holocaust survivor acquiring the small tablet, without knowing its true value.

  

  1. Vesselin Mitev, German Museum Loses Attempt to Reclaim Artifact From Estate, New York Law Journal, April 6, 2010.
Questions or Comments? Email me at derek.fincham@gmail.com

“He has no proof, and I have all the proof”

So says Joanne King Herring in the Houston Chronicle earlier this week when discussing her suit to regain this work by Sir Henry Raeburn.  Herring has an auction catalog receipt and a 1986 police report which was filed when the work disappeared from a framing shop. 

The work had been missing since, until Geoffrey Rice recently consigned the painting to Sotheby’s.  When he did, the painting raised flags with the Art Loss Register.   Rice claims to have purchased the painting from Hart Galleries in Houston, an auction house that is now shuttered because of misapplication of fiduciary property.  Rice has no paperwork for the work and claims to have stored the painting in his laundry room for years, and only recently decided to sell the work.  Probably not the best provenance.  I like Herring’s chances to regain the work.  As Herring says “I wouldn’t any more press a case if I didn’t have a bill of sale than fly to the moon.”

Rice has defended Herring’s suit on a statute of limitations defense.  However she has done everything a prudent victim should—contacting the police and reporting the theft to the Art Loss Register.  As a consequence the limitations period will probably not begin until she discovered the present possessor of the painting.  

  1. Douglas Britt, Artwork socialite reported stolen now caught in custody battle, Houston Chronicle, February 21, 2010.
Questions or Comments? Email me at derek.fincham@gmail.com

Limiting Art and Antiquities Restitution?

So argues Norman Rosenthal in the Art Newspaper today.  The former Exhibitions Secretary at the Royal Academy does not see the merit in the current expansion of restitution and repatriation.  He draws parallels between antiquities restitution cases and the claims involving Nazi looted artworks. 

Since the late 1990s there has been a strong push towards provenance research of collections and museums, and restitution of items that were looted or taken by the Nazis during their period of power in Europe from 1933 to 1945. This process has been ongoing for ten years, and the items in question have often been claimed by people distanced by two or more generations from their original owners.
I have, perhaps, an idiosyncratic, non-politically-correct view that many people will disagree with, but I believe history is history and that you can’t turn the clock back, or make things good again through art.

History has always looked after works of art in strange ways. Ever since the beginning of recorded history, because of its value, art has been looted and as a result arbitrarily distributed and disseminated throughout the world. Of course, what happened in the Nazi period was unspeakable in its awfulness. I lost many relatives, whom I never knew personally, and who died in concentration camps in the most horrible of circumstances. I believe, however, that grandchildren or distant relations of people who had works of art or property taken away by the Nazis do not now have an inalienable right to ownership, at the beginning of the 21st century. If valuable objects have ended up in the public sphere, even on account of the terrible facts of history, then that is the way it is.

If, because of provenance research, works of art are taken from museums, whether in Russia, Germany, France, the US or the UK, and are then sold on for profit or passed around for political expediency, it is nearly always the rich who are making themselves richer. The vast majority of individuals, who were beaten up or killed during the Nazi period—or indeed by other oppressors in different parts of Europe—did not have art treasures that their children and grandchildren can now claim as compensation. The concept of the “universal museum” is also, in certain circumstances, a politically useful euphemism. Nonetheless, it has to be good that important works of art should be available to all through public ownership. Restitution claims from museums go against this idea and result in the general culture being impoverished.

He makes a good point that much of the restitution litigation has been very profitable for both attornies and auction houses.  But these claims are in response to very clear violations of the law.  Perhaps we need to be more careful about what circumstances an art or antiquity claim should be made, but when laws are broken claimants should have a right to justice.  He concludes by arguing for a statute of limitations on these claims.  However such limitations periods currently exist.  The difficulty is not the amoutn of time we might choose for a period, but rather what circumstances trigger the running of that limitations period. 

Questions or Comments? Email me at derek.fincham@gmail.com

Ninth Circuit Hears Nazi Restitution Appeal

It’s not often works of art are implicated by both World Wars, but these paintings present a conflict between successors of claimants from the First World War and claimants from the Second World War.

The Ninth Circuit Court of Appeals yesterday heard an appeal over these 500-year-old works of art seized by the Bolsheviks and the Nazis, Saher v. Norton Simon Art Museum, 07-5669. Pictured here are Adam and Eve by Lucas Cranach the Elder, 1520. The claimant, Marei Von Saher is the successor in interest to Jacques Goudstikker who bought the works in a 1931 auction in Berlin. The works remained there in Amsterdam until 1940 when the Nazis instituted a forced sale.

After the war, Desiree Goudstikker reached a settlement with the Dutch government. She received some of her husband’s inventory, but did not claim another set of works because that would have ment returning the purchase price received from the Germans.

The Dutch government transferred those works to George Stroganoff-Scherbatoff, the heir of a noble Russian family who was thought to have lost the paintings to the Bolsheviks during the Russian Revolution.

The issue here is the timeliness of the action, which may have implications for other claimants — including antiquities. Kenneth Ofgang, Staff Writer for Metropolitan New-Enterprise has more:

“This has nothing to do with foreign policy,” Kaye told the judges. U.S. District Judge John Walter of the Central District of California had ruled that Code of Civil Procedure Sec. 354.3 is preempted because it conflicts with federal primacy in foreign affairs. Fred A. Rowley Jr. of Munger, Tolles and Olson, representing Pasadena’s Norton Simon Art Museum and its supporting foundation said the district judge was correct and the dismissal of Marei Von Saher’s action should be affirmed. Von Saher, a Connecticut resident, sued last year following the collapse of mediation over her claim that she and her family have lawful title to Adam and Eve, a diptych painted by famed German artist Lucas Cranach the Elder in the 16th Century.Von Saher’s late husband, Eduard “Edo” Von Saher, was the son of Jacques Goudstikker, a Dutch Jew who was one of Europe’s leading art dealers in the years leading up to World War II. Goudstikker fled Holland when the Nazis invaded in 1940, but was killed in an accidental fall aboard ship. His widow, Desiree Goudstikker, and their son eventually came to the United States and became citizens, having left behind their gallery; hundreds of art works, many of them by famous painters; and valuable real estate. Young Edo Goodstikker became Edo Von Saher after his mother remarried. The parties agree that Jacques Goudstikker purchased the wood panels at an auction in Berlin in the 1930s. But while Von Saher claims that her father-in-law acquired good title from the Soviet government, the foundation charges that he knew that Cranach’s work had been wrongfully expropriated from the wealthy and powerful Stroganoff family after it fled the Russian Revolution. The museum and foundation say museum benefactor Norton Simon lawfully acquired the panels for $800,000 from Commander George Stroganoff-Scherbatoff, who renounced his hereditary title, became a U.S. citizen, and served in the Navy during World War II.

The primary issue is whether California’s special limitations rule for works looted during the Holocauset era, Sec. 354.3 conflicts with an Executive Order issued by President Truman.

See here for more on Jacques Goudstikker.

Questions or Comments? Email me at derek.fincham@gmail.com

Klimt Dispute


In another spoliation story in today’s NY Times, A grandson of a woman who died in the Holocaust may be considering legal or other claims for this work, Blooming Meadow (1906) by Gustav Klimt. Georges Jorish is considering legal claims or seeking a settlement. It seems the impetus for the new claims is the publication of another catalogue raisonné, this one by Alfred Weidinger which states the painting belonged to Jorisch’s grandmother.

The work now belongs to Leonard Lauder, who purchased the work in 1983. Wouldn’t a legal claim have expired under the statute of limitations? Probably not. New York is one of the most generous jurisdictions in the world for original owners. A limitations period won’t begin to run in New York until a demand and refusal has been made. Other legal defenses may be available to Lauder if the claimant delayed, but here it seems Jorisch is considering a claim after new information.

Questions or Comments? Email me at derek.fincham@gmail.com