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US Museums Criticized for Mishandling Nazi Art Restitution Cases

Paul Gauguin's "Street in Tahiti" (1891) was the subject of a restitution lawsuit between the Toledo Museum of Art and the heirs of Martha Nathan. (photo via Wikipedia)
Paul Gauguin’s “Street in Tahiti” (1891) was the subject of a restitution lawsuit between the Toledo Museum of Art and the heirs of Martha Nathan. (photo via Wikipedia)

A new report on the restitution of Holocaust-era artworks condemns a number of US museums for failing to resolve claims straightforwardly and instead resorting to legal maneuvers to have them dismissed. Issued by the World Jewish Restitution Organization (WJRO), the report calls out the Toledo Museum of Art, Detroit Institute of Arts, Museum of Modern Art in New York, Museum of Fine Arts, Boston, and the Fred Jones Jr. Museum of Art at the University of Oklahoma for such practices, and criticizes the American Alliance of Museums (AAM) for failing to enforce its own standards in the realm of restitution.

At the heart of the WJRO’s argument is the idea that Holocaust-era art restitution claims should be resolved “on their facts and merits.” This phrase comes from the Terezin Declaration, a statement affirmed by 46 countries — including the US — at the 2009 Holocaust Era Assets Conference in Prague that says (emphasis added):

Keeping in mind the Washington Conference Principles on Nazi-Confiscated Art, and considering the experience acquired since the Washington Conference, we urge all stakeholders to ensure that their legal systems or alternative processes, while taking into account the different legal traditions, facilitate just and fair solutions with regard to Nazi- confiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by all parties. Governments should consider all relevant issues when applying various legal provisions that may impede the restitution of art and cultural property, in order to achieve just and fair solutions, as well as alternative dispute resolution, where appropriate under law.

The Washington Conference Principles, endorsed by 44 countries at a conference in Washington, DC, in 1998, are the cornerstone for best practices in Holocaust-era art restitution and say much the same thing, though without the specific “facts and merits” language.

According to the WJRO, rather than evaluating the worthiness of claims, US art museums have developed a tendency to become overly litigious when faced with them; the report discusses a number of recent examples in which institutions — namely, the five listed above — attempted to have cases dismissed by arguing that the statute of limitations had expired. “Use of these procedural defenses is an attempt to defeat claims for the restitution of art stolen by the Nazis by avoiding any adjudication of the substance of those claims,” the report says.

The WJRO also faults the AAM for failing to hold museums accountable to its own guidelines, which state that “each claim should be considered on its own merits.” The authors of the report claim that although WJRO itself has specifically asked AAM to review restitution lawsuits and perhaps penalize museums that act unethically, the AAM has declined to do so.

Interestingly, the report includes a brief comparison between US and European museums, noting that while the US was a leader in the establishment of restitution principles early on, Europe has more recently done a much better job. The authors credit this to the establishment of “national processes for alternate dispute resolution mechanisms” in countries such as Austria, France, and the UK, and go on to quote Douglas Davidson, the former United States Special Envoy for Holocaust Issues, who attributes the continental difference to the fact that European museums are largely public, whereas US institutions are mostly private. In Europe “a neutral decision maker, the national art commission, makes its decision based on the historical record and thus gives both the museum and the claimant the possibility of a fair hearing,” Davidson says. “The United States has maintained that it is unique with respect to this issue, because unlike Europe, its museums are mostly private, although open to the public. Citing this difference the United States takes the position that claimants and museums should work out the issue of whether the art at stake is Nazi looted art and, if they cannot do so on their own, they should resolve the matter in the courts.”

The WJRO is not the first group to raise concerns about US museums’ handling of Holocaust restitution cases. A June 2013 New York Times story on the issue cited a myriad of “historians, legal experts, and Jewish groups” arguing much the same.

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