The Restitution, Repatriation, and Return of Cultural Objects: Restitution of Cultural Objects Taken During World War II (Part II)

This article is the second in a five-part series discussing the restitution, repatriation, and return of cultural objects. Each part addresses a different category of return. The first article in the series available here, addressed the restitution of stolen cultural objects. This article is the continuation of Part 1 and discusses developments in the restitution of cultural objects taken during World War II. The remaining articles address: (1) the restitution of illicitly excavated and/or illicitly exported cultural objects, (2) repatriation of tribal and indigenous cultural objects, and (3) the return of cultural objects removed during colonial occupation.

Museums’ Use of Technical Defenses: Von Saher and Beyond

The question of museums waiving defenses, as the AAM Standards suggest, has emerged as an important point of conflict in Nazi-era restitution cases. In a few instances, museums have filed quiet title actions against restitution claimants, asking courts to issue declaratory judgments that the museums have good title to the objects and/or the claimants’ rights have been lost due to statutes of limitations or laches. [See, e.g., Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802 (N.D. Ohio 2006); Detroit Inst. of Arts v. Ullin, No. 06-10333, 2007 WL 1016996, at *1 (E.D. Mich. Mar. 31, 2007); Museum of Fine Arts, Boston v. Seger-Thomschitz, Case No. 08-10097-RWZ, 2009 WL 6506658 (D. Mass. June 12, 2009); Museum of Fine Art v. Schoeps, 549 F.Supp.2d 543 (S.D.N.Y. 2008).] Such cases remain rare, and are controversial. [See, e.g., Grosz v. Museum of Modern Art, 772 F.Supp.2d 473 (S.D.N.Y. 2010); Simon J. Frankel and Ethan Forrest, “Museums’ Initiation of Declaratory Judgment Actions and Assertion of Statutes of Limitations in Response to Nazi-Era Restitution Claims – A Defense,” 23 DePaul J. Art, Tech. & Intell. Prop. L. 279, 281 (2013).] However, museums asserting statutes of limitations and laches defenses – what have become known as “technical defenses” – rather than allowing cases to be decided solely on the merits is not less controversial. [1]

Statute of limitations and laches[2] defenses are commonplace in stolen art litigation. [For a discussion of statutes of limitations and related issues in stolen art cases, see my earlier discussion in “Restitution of Stolen Cultural Objects,” available here.] The propriety of museums’ use of such technical defenses is highlighted in Von Saher v. Norton Simon Museum of Art at Pasadena. [Von Saher v. Norton Simon Museum of Art at Pasadena, 754 F.3d 712 (9^th Cir. 2014).] Before the Second World War, Jacques Goudstikker was a preeminent Amsterdam art dealer. [See “Reclaimed: Paintings from the Collection of Jacques Goudstikker,” exhibition March 15 – August 2, 2009, Jewish Museum website, available here.] When the Nazis invaded the Netherlands in 1940, the Goudstikkers, as Jews, were endangered. They fled the country, leaving behind their possessions, including the contents of Jacques’s art gallery, which included more than 1,400 objects, including two life-size 16^th-century panels by Lucas Cranach the Elder, titled “Adam and Eve.” Jacques Goudstikker had purchased the Cranach panels at auction in 1931. The auction was titled “The Stroganoff Collection,” and included objects that had been expropriated by the Soviet government from the Stroganoff family, as well as from other owners within the U.S.S.R. The Cranach panels had not been owned by the Stroganoff family, but had been in the collection of the Ukrainian Academy of Science in Kiev.

After the Nazis occupied Amsterdam, the Goudstikkers’ possessions were confiscated, with Hermann Goering selecting ca. 800 objects for his personal collection. Many of the Goudstikker objects were retrieved by Allied forces at the end of the war and were sent to the Central Collecting Point in Munich for cataloging and processing. Allied policy was to return Nazi-looted objects to the governments of the countries from which they had been taken, reasoning that those countries were in the best position to locate the original owners and return the objects to them or to their heirs. Along with other Goudstikker objects, the Allies restituted the Cranach panels to the government of the Netherlands. However, in 1961, an heir of the Stroganoff family filed a claim against the Cranachs, and Netherlands erroneously restituted the panels to him. The heir sold the Cranach panels to the Norton Simon Museum of Art at Pasadena in the early 1970s.

Von Saher I

With Von Saher the question of whether a statute of limitations defense is appropriate in the case of Nazi-looted objects has been extensively litigated. Concerned that California’s three-year statute of limitations was presenting an unfair burden on claimants with respect to Holocaust and in Nazi-era looting cases, the California legislature extended that statute of limitations, but only for such Holocaust and Nazi-era looting claims. Marei Von Saher, the heir of Jacques Goudstikker, filed a replevin action in California in May 2007 against the museum, and the museum filed a motion to dismiss, arguing that the California statute extending the limitations period unconstitutionally intruded upon the federal government’s “exclusive power to make and resolve war, including the procedure for resolving war claims.” [Von Saher v. Norton Simon Museum of Art at Pasadena, Case No. CV-07-2866-JFW, 2007 WL 4302726 (C.D. Cal. Oct. 18, 2007).] The district court agreed, and dismissed the case. Ms. Von Share appealed the decision to the 9^th Circuit Court of Appeals, which issued a decision finding the California extension of its statute of limitations unconstitutional but allowing Ms. Von Saher leave to amend her complaint to allege that her claim was brought within the existing three-year statute of limitations measured by the discovery rule. [Von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016 (2009).] That decision was reheard en banc, with the full court again holding the extended limitations period to be unconstitutional, and remanding the case to the district court to allow the plaintiff to amend her complaint. [Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954 (2010).]

Von Saher II

Following the 9^th Circuit’s decision, Ms Von Saher filed an amended complaint. The California legislature amended its statute of limitations, this time avoiding the foreign affairs conflict, and providing generally that claims for the recovery of artworks must be brought within six years after “actual discovery” by the plaintiff of the current location and current possessor of the object (provided that the object has been taken within the last 100 years). The constitutionality of this limitations period was challenged in a wholly separate Nazi-confiscated art case, and the statute was upheld. [Cassirer v. Thyssen-Bornemisza Collection Foundation, 737 F.3d 613 (9^th Cir. 2013).] However, the district court granted the museum’s second motion to dismiss the case, holding that Ms Von Saher’s claims were preempted by the...