Grosz V MoMA Amicus Brief - Nazi Art Looting
Grosz V MoMA Amicus Brief - Nazi Art Looting
Grosz V MoMA Amicus Brief - Nazi Art Looting
No. 10-257-cv
THE MUSEUM OF MODERN ART, Herrmann-Neisse with Cognac, Painting by Grosz, Self-Portrait
with Model, Painting by Grosz and Republican Automatons, Painting by Grosz,
Defendants-Appellees.
____________________________________________
On Appeal from the United States District Court for the Southern District of New York
Civil Action N. 09-cv-3706(CM)(THK) (Hon. Coleen McMahon)
___________________________________________
Brief Amicus Curiae of American Jewish Congress, Commission for Art Recovery;
Filippa Marullo Anzalone, Yehuda Bauer, Michael J. Bazyler, Bernard Dov Beliak,
Michael Berenbaum, Donald S. Burris, Judy Chicago and Donald Woodman,
Talbert D’Alemberte, Marion F. Desmukh, Hedy Epstein, Hector Feliciano,
Irving Greenberg, Grace Cohen Grossman, Marcia Sachs Littell, Hubert G. Locke,
Carrie Menkel-Meadow, Arthur R. Miller, Carol Rittner, John K. Roth,
Lucille A. Roussin, William L. Shulman, Stephen D. Smith and Fritz Weinschenk,
In Support of Plaintiffs-Appellants and Reversal
__________________________________________
TABLE OF CONTENTS
ARGUMENT ........................................................................................................ 5
i
Case: 10-257 Document: 71 Page: 3 06/22/2010 56994 70
ii
Case: 10-257 Document: 71 Page: 4 06/22/2010 56994 70
CONCLUSION ................................................................................................... 30
APPENDIX
CERTIFICATE OF SERVICE
iii
Case: 10-257 Document: 71 Page: 5 06/22/2010 56994 70
TABLE OF AUTHORITIES
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ............................... 5, 22, 23, 24
Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802 (N.D. Ohio 2006) ............ 7
FEDERAL RULES
iv
Case: 10-257 Document: 71 Page: 6 06/22/2010 56994 70
Louis Brandeis, Other People’s Money – and How Bankers Use It (1914)....... 29
Convention Respecting the Laws and Customs of War on Land art. 47, 56,
Oct. 18, 1907, 36 Stat. 2277, 15 U.N.T.S. 9 ................................................. …...27
Lucy Dawidowitcz, The War Against the Jews, 1933-1945 (1975) .................... 3
v
Case: 10-257 Document: 71 Page: 7 06/22/2010 56994 70
Charles de Jaeger, The Linz File: Hitler’s Plunder of Europe’s Art (1981)....... 20
Ester Tisa Francini, et al, Flight Goods – Stolen Goods: The transfer of
cultural assets in and via Switzerland 1933-1945 and the question of
restitution 318 (Independent Expert Commission, Switzerland –
World War II, 2001)............................................................................................ 23
Götz Aly, Hitler’s Beneficiaries: Plunder, Racial War, and the Nazi
Welfare State (2007) ........................................................................................... 17
vi
Case: 10-257 Document: 71 Page: 8 06/22/2010 56994 70
PAGE(S)
Jennifer Anglim Kreder, The New Battleground of Museum Ethics and
Holocaust Era Claims: Technicalities Trumping Justice or Responsible
Stewardship for the Public Trust?, 88 Or. L. Rev. 37 (2009) ..................12, 20, 26
Karl Loewenstein, Law in the Third Reich, 45 Yale L.J. 779 (1936) ................ 19
Glenn D. Lowry, Testimony Before the House Banking & Financial Services
Committee, February 12, 1998 ........................................................................... 21
Joan M. Lukach, Hilla Rebay: In Search of The Spirit in Art (1983) ................ 20
Ingo Müller, Hitler’s Justice: The Courts of the Third Reich (1991) ................. 17
MoMA meeting of the Board of Trustees minutes, April 11, 2006 ................... 15
PAGE(S)
Adam Zagorin, Saving the Spoils of War, Time, Dec. 1, 1997 .......................... 21
viii
Case: 10-257 Document: 71 Page: 10 06/22/2010 56994 70
TABLE OF APPENDICES
Page
ix
Case: 10-257 Document: 71 Page: 11 06/22/2010 56994 70
x
Case: 10-257 Document: 71 Page: 12 06/22/2010 56994 70
Amici, American Jewish Congress and Commission for Art Recovery have
no corporate parents, and no publicly traded company holds and ownership interest
in any of the amici.
xi
Case: 10-257 Document: 71 Page: 13 06/22/2010 56994 70
educators, artists and art historians, and legal scholars and practitioners
experience, training, and competence of the amici, all of the amici support
claims related to Nazi-looted art and other Holocaust-era assets in two ways.
First, the refusal of the district court to toll the statute of limitations while
the parties were engaged in substantive negotiations to try to settle the case
1
This brief is submitted in accordance with FED. R. APP. P. 29(a). Counsel for amici
certify that counsel of record for all parties received notice of at least 10 days prior to the
due date of the amici's intention to file this brief and that all counsel have consented to
the filing of this brief. No counsel for any party authored this brief in whole or in part,
and no person or entity, other than the amici curiae, their members, or counsel, made a
monetary contribution to the preparation or submission of this brief.
1
Case: 10-257 Document: 71 Page: 14 06/22/2010 56994 70
Second, the effect of the district court’s order discourages future bona fide
looted art, since claimants may now perceive time spent in serious
grounds.
Summary of Argument
the issues of gross injustice that remained unaddressed decades after World
War II. The goal was modest: to achieve a measure of “imperfect justice”2
2
See Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the
Unfinished Business of World War II (2003) [hereinafter “Eizenstat”]. Ambassador
Eizenstat has served as Special Envoy for Holocaust Issues during the Clinton and
Obama Administrations. He organized and chaired the Washington Conference on
Holocaust-Era Assets in 1998 and served as Head of the U.S. delegation to the Prague
Conference in 2009. His account describes seeking “imperfect justice” for:
those who placed their most precious assets in the safest banking system in
Europe--in Switzerland--to keep them out of Hitler's clutches (for fifty
2
Case: 10-257 Document: 71 Page: 15 06/22/2010 56994 70
for the victims of the “war against the Jews.”3 One of these efforts was to
important documents encourage the use of less costly, more efficient means
years after the war, they were unable to recover them); those who were
forced into brutal slavery and forced labor at the hands of German and
Austrian employers and were never compensated (most of these, by the
way, were non-Jews in Eastern Europe); those whose hard work,
businesses, and apartments were confiscated and never restituted after the
war; those whose insurance policies were never paid; and more broadly,
those whose entire culture was stolen from them.
Stuart E. Eizenstat, Imperfect Justice: Looted Assets, Slave Labor, and the
Unfinished Business of World War II, 37 Van. J. Transnat’l L. 333, 333 (2004).
3
See Lucy Dawidowitcz, The War Against the Jews, 1933-1945 (1975). Dawidowitcz
describes the entire Nazi period (1933-1945) as a war that targeted Jews, deprived them
of liberty, dispossessed them of their homes and almost all forms of property, and took
life by the millions.
3
Case: 10-257 Document: 71 Page: 16 06/22/2010 56994 70
the lengthy, complex investigation required to bring to light the true nature
to property stolen in the greatest art heist of history, with traces of the grand
art that entice claimants to spend time negotiating so that the limitations
period will run before they realize the need to get to a courthouse.
Third, federal courts should allow the full light of history to illuminate
4
Case: 10-257 Document: 71 Page: 17 06/22/2010 56994 70
the district court did in this case – as “rank hearsay”4 unworthy of supporting
Argument
complex, the more attentive the courts must be to details, but in all cases the
cases, courts are confronted with painful historical facts that cannot be
denied by wishing them to disappear. This Court should not ignore these
hard facts by affirming an order dismissing the case under Rule 12(b)(6),
Fed. R. Civ. P., when this order is clearly improper even under Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct.
should take judicial notice of the context of the original theft to fully
understand how the works came to be “lost.” Courts must also focus on the
4
Grosz v. Museum of Modern Art, No. 09 Civ. 3706 , 2010 Westlaw 88003, at *5
(S.D.N.Y. Mar. 3, 2010).
5
Case: 10-257 Document: 71 Page: 18 06/22/2010 56994 70
include a chart that summarizes all other federal Nazi-looted art cases since
Altmann. In every other judgment except the one with the most egregious
facts, the courts have rejected the restitution claims, typically on procedural
been to remove the dark cloud of the Nazi past from their title to disputed
artworks that many of them have gone to court as plaintiffs seeking swift
6
Case: 10-257 Document: 71 Page: 19 06/22/2010 56994 70
in Toledo Museum of Art v. Ullin, 477 F. Supp. 2d 802 (N.D. Ohio 2006), a
district judge actually held that the statute of limitations ran in 1943, before
the Allies had landed on the beaches of Normandy, let alone defeated the
Wehrmacht and liberated survivors in work camps and mass killing centers.
York’s “demand and refusal” rule despite the mandate in Rule 408, Fed. R.
facto presumption that survivor’s and heirs’ claims to Nazi-looted art are
invalid.
art restitution claims in which some federal courts have indulged and the
goals pursued by the United States and the Allies during and immediately
7
Case: 10-257 Document: 71 Page: 20 06/22/2010 56994 70
after World War II, and in recent diplomatic breakthroughs in 1998, 2000,
and 2009.
the executive branch. For example, in 1949 this Court ruled inadmissible
imprisonment by the Nazis that led him to “transfer” major assets under
173 F.2d 71 (2d Cir. 1949). In 1952, however, Jack B. Tate, Acting Legal
5
26 Dept. St. Bull. 984-85 (1952) (the “Tate letter”).
8
Case: 10-257 Document: 71 Page: 21 06/22/2010 56994 70
Once this Court was fully informed of the government’s views of coerced
with, property . . . whether such transfers or dealings have taken the form of
to the aryanization7 of George Grosz’s art at stake in this case, and the
Nuremberg, it was perfectly clear to the fact finders who had done what and
to whom.8
order to rejoin the human family, Germany and Austria had to repudiate all
6
Bernstein v. N.V. Nederlansche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d
375, 376 (2d Cir. 1954).
7
See Avraham Barkai, “Ariesierung,” 1 Encyclopedia of the Holocaust 84-87 (Israel
Gutman, ed., 1990).
8
For example, Alfred Rosenberg, head of infamous ERR art looting unit, was convicted
and sentenced to death by hanging. E.g.,
http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/NurembergIndictments.html
#Rosenberg.
9
Case: 10-257 Document: 71 Page: 22 06/22/2010 56994 70
spurious “transactions” of the entire Nazi era, including art “deals” that were
Fed. Reg. 7983 (Nov. 29, 1947) (Military Government Law 59). It is
Current foreign policy requires deference like this Court gave to the
Tate letter. Diplomats from the State Department played a leading role9 in
hosted by the Czech Republic in June 2009. These declarations call for
10
Case: 10-257 Document: 71 Page: 23 06/22/2010 56994 70
The Terezín Declaration states in its principles under the heading “Nazi-
reason, amici are deeply troubled not only by the district court’s misreading
of the correspondence between the Director of the MoMA Glenn Lowry and
Ralph Jentsch, but also with the fact that Lowry, currently AAMD’s Vice
12
AAMD, Report of the AAMD Task Force on the Spoliation of Art During the
Nazi/World War II Era, June, 4 1998, http://www.aamd.org/papers/guideln.php
[hereinafter “AAMD Guidelines”]. We include this document as Appendix E. See also
American Association of Museums Guidelines Concerning the Unlawful Appropriation
of Objects during the Nazi Era, Nov. 1999, amended Apr. 2001, http://aam-
us.org/museumresources/ethics/nazi_guidelines.cfm (similar guidelines).
13
AAMD, Governance, 2010, http://www.aamd.org/about/#Governance.
11
Case: 10-257 Document: 71 Page: 24 06/22/2010 56994 70
C. The Dismissal Of This Case Violates The Letter And Spirit Of Rule
408 Of The Federal Rules Of Evidence, Which Fosters Open,
Transparent Communication Among Parties To Achieve A Meaningful
Resolution Of Their Conflict.
The district court improperly based its dismissal of this case on its
circumstances such as those found here, toll the state statute of limitations
limitations is not only unjust, but is in direct contradiction to the text and
14
We include the letters from Lowry to Jentsch dated July 20, 2005, January 18, 2006,
and April 12, 2006, in Appendix F.
15
E.g., Rein v. Socialist People’s Libyan Arab Jamahiriya, 568 F.3d 345, 352 (2d. Cir.
2009).
16
See Jennifer Anglim Kreder, The New Battleground of Museum Ethics and Holocaust
Era Claims: Technicalities Trumping Justice or Responsible Stewardship for the Public
Trust?, 88 Or. L. Rev. 37 (2009) (analyzing museums’ filing of declaratory judgments
before claimants have had sufficient time to complete provenance research).
12
Case: 10-257 Document: 71 Page: 25 06/22/2010 56994 70
necessarily requires that adequate time be given to settle the claim. Failure
to toll the statute of limitations in complex Nazi-looted art cases while the
parties research the facts and provenance has two effects: first, claimants
strategies to draw out negotiation past the statute of limitations. Both effects
the invalidity of a claim. The district court searched through the Lowry-
Jentsch letters to construct from words isolated from context the requisite
demand and refusal under New York law – despite Lowry’s continued, clear
representations that he lacked the authority to speak for MoMA until the
17
Grosz, at *11.
13
Case: 10-257 Document: 71 Page: 26 06/22/2010 56994 70
into litigation.”19
toward a just and fair solution, was a “refusal.”20 The language about setting
Guidelines encourage.
18
Id., at *9.
19
Id., at *13.
20
Id.
14
Case: 10-257 Document: 71 Page: 27 06/22/2010 56994 70
the Grosz heirs that its Board of Trustees accepted the recommendations of
Katzenbach that MoMA had no obligation to return and should not return
the Paintings. Amici note that Katzenbach based his conclusion on the idea
that the Grosz claims would be time-barred, not because of the facts and
merits of the claim.21 It was at this time, and not before, that MoMA refused
the claim, and, in accord with New York law and with Rule 408, Fed. R.
do not suggest that, in order to right the egregious injury of the Holocaust,
21
MoMA meeting of the Board of Trustees minutes, April 11, 2006, page 2.
15
Case: 10-257 Document: 71 Page: 28 06/22/2010 56994 70
Neither may they sustain a general bias against claimants. Either form of
bias would violate the most ancient requirement of judicial ethics: to judge
with even-handed justice. Whatever the blindfold over the eyes of Lady
artwork.
context of all cases that come before them. Perhaps this is why the district
court so candidly diminished the significance of the historical events that she
casually disregarded in the opinion in this case. But in cases like this one,
guards against assaults upon truth and memory. Cf. Deborah E. Lipstadt,
Denying the Holocaust: The Growing Assault on Truth and Memory (1993).
22
Grosz, at *22.
16
Case: 10-257 Document: 71 Page: 29 06/22/2010 56994 70
From the very beginning of the Nazi era, law and jurisprudence
“enemies of the State” of their liberty and property, and these deprivations
led in turn to mass murder. See, e.g., Ingo Müller, Hitler's Justice: The
Courts of the Third Reich (1991). Indeed, the “legalized” grand larceny
this for judges to consider the historical reality in Nazi Germany and
appear “ordinary and legal” from the very first weeks of the Nazi regime
early in 1933, even before the infamous racist Nuremberg laws of “blood
23
See, e.g., Martin Dean, Robbing the Jews (2008); Götz Aly, Hitler’s Beneficiaries:
Plunder, Racial War, and the Nazi Welfare State (2007); Richard J. Evans, The Third
Reich in Power 322-411 (2005); David Cesarani, Becoming Eichmann 67 (2004).
Immediately after the Anschluss in March of 1938, the U.S. Consul General in Vienna
observed: “There is a curious respect for legal formalities. The signature of the person
despoiled is always obtained, even if the person in question has to be sent to Dachau in
order to break down his resistance.” William L. Shirer, The Nightmare Years, 1930-1940
30 (1984).
17
Case: 10-257 Document: 71 Page: 30 06/22/2010 56994 70
property from 1933 to 1942 when Jews had little or no property left to rob,
and when the focus turned to “cost-efficient” mass murder in the death
until the passage of the first Nuremberg law in 1935 resulted from a series of
devastation of German Jews and noted that many wanted to flee but could
24
Dean, supra note 23.
25
See Richard J. Evans, The Third Reich in Power 382 (2005); Avraham Barkai, From
Boycott to Annihilation: The Economic Struggle of German Jews (1989).
26
Text of Resignation of League Commissioner on German Refugees, N.Y. TIMES, Dec.
30, 1935.
18
Case: 10-257 Document: 71 Page: 31 06/22/2010 56994 70
Nazi regime.27 The New York Times decried: “To Be a Jew Is Held a
Yale Law Journal: “Jews are finally driven out even from the remaining
nooks and crannies of economic life by the official economic boycott, more
coordination. Legal titles were voided and property confiscated under the
The historical record leaves no serious doubt that – both during and
treasures and other “degenerate” art was common knowledge among insiders
curator, the famous artist Otto Nebel described the Nazis’ plans to liquidate
27
Otto D. Tolischus, Hitler will Seize Property of Foes, N.Y. Times, July 15, 1933, at 1.
28
German Fugitives Tell of Atrocities at Hands of Nazis, N.Y. TIMES, Mar. 20, 1933, at
1, 5.
29
Karl Loewenstein, Law in the Third Reich, 45 Yale L.J. 779, 797 (1936).
30
Id. at 807.
31
See Holzer v. Deutsche Reichsbahn Gesellschaft, 159 Misc. 830, 290 N.Y.S. 181 (N.Y.
Sup. Ct. 1936), aff’d sub nom. 252 A.D. 729, 299 NY.S. 748 (N.Y. App. Div. 1937, aff’d
in part, modified in part, 277 N.Y. 474, 14 N.E.2d 798 (1938).
19
Case: 10-257 Document: 71 Page: 32 06/22/2010 56994 70
are involved! . . . I believe that one shouldn’t help transform works of art
into armaments – and that, after all, would be the end result. But that is my
own opinion, and it needn’t bother anyone.”32 Francis Henry Taylor, former
trafficking in the New York Times on September 19, 1943.33 Moreover, the
the countries of victims. After their return from Germany, many became
told their stories.34 After the war, the State Department and other agencies,
infecting the market and publicized lists of stolen art and the identities of
case. News stories ran in publications such as The New Yorker, which in
32
Joan M. Lukach, Hilla Rebay: In Search of The Spirit in Art 121 (1983). See generally
Jonathan Petropolous, The Faustian Bargain (2000); Jonathan Petropolous, Art As
Politics in the Third Reich (1996).
33
Francis Henry Taylor, Europe’s Looted Art: Can It Be Recovered?, N.Y. Times, Sept.
19, 1943, at SM18.
34
See James J. Rorimer, Survival: The Salvage and Protection of Art in War (1951);
Henry La Farge, Lost Treasures of Europe (1946); Charles de Jaeger, The Linz File:
Hitler’s Plunder of Europe’s Art (1981). Some art collectors told stories of having
purchased looted art. William S. Paley, As It Happened, a Memoir 107 (1979) (CBS
Chairman).
35
See, e.g., Kreder, supra note 16, at 88-89.
20
Case: 10-257 Document: 71 Page: 33 06/22/2010 56994 70
that “tens of thousands” of pieces of art were stolen by the Nazis.37 Another
historian has stated: “The paintings came to America because for more than
10 years during and after the war there was no where else to sell them[.]” 38
Some American museums would have us believe that the art world
was oblivious to the infection of the market until 1998, but the story of the
Nazis stealing more art than any regime in history, surpassing even
Napoleon, was widely told – even front page news.39 Theodore Rousseau, a
Museum of Art, thought it was “absurd” for U.S. museums to miss out on
the fire sales: “[I]t’s absurd to let the Germans have the paintings the Nazi
36
Janet Flanner, Annals of Crime: The Beautiful Spoils, The New Yorker, Feb. 22, Mar.
1, Mar. 8, 1947 at 31, 33, 38.
37
Glenn D. Lowry, Testimony Before the House Banking & Financial Services
Committee, February 12, 1998.
38
Adam Zagorin, Saving the Spoils of War, Time, Dec. 1, 1997, at 87 (quoting Willi
Korte, consultant on Holocaust losses to the Senate Banking Committee).
39
See David Roxan & Ken Wanstall, The Rape of Art (1965); Milton Esterow, Europe Is
Still Hunting Its Plundered Art, N.Y. Times, Nov. 16, 1964, at 1.
21
Case: 10-257 Document: 71 Page: 34 06/22/2010 56994 70
bigwigs got, often through forced sales, from all over Europe. Some of them
classification of archives, which allowed some to begin the costly search for
family and assets, does not negate the fact that the art world had
1947, and another in 1954.41 Not caring does not equate to not knowing.
world’s most esteemed museums like MoMA, have argued that Jews and
transfer of property within the Third Reich after 1933. This may have been
40
Lynn Nicholas, The Rape of Europa 439 (1994).
41
Grosz, at *2.
42
Iqbal, 129 S.Ct. at 1937, citing Twombly, 550 U.S. at 555-56.
22
Case: 10-257 Document: 71 Page: 35 06/22/2010 56994 70
of the State,” fled Germany in January 1933, leaving his work with Jewish
art dealer Alfred Flechtheim. Later, Flechtheim also fled. The Nazis
suggested that the reason why Flechtheim went out of business was that he
announced in Twombly and Iqbal. On the contrary, the massive Nazi theft
of art is well documented not only as a general historical fact, but also as a
also a powerful historical consensus about the Nazi program of selling stolen
43
Id.
44
Id.
45
Ester Tisa Francini, et al, Flight Goods – Stolen Goods: The transfer of cultural assets
in and via Switzerland 1933-1945 and the question of restitution 318 (Independent Expert
Commission, Switzerland 2001). See generally Hector Feliciano, The Lost Museum 155-
164 (1997).
23
Case: 10-257 Document: 71 Page: 36 06/22/2010 56994 70
that the chief obstacle complicating provenance research is that the Nazis
went out of their way to disguise their grand larceny as though it was only a
series of open transactions between willing sellers and buyers. In the light
of such uniform scholarly consensus, this Court should hold that the
This Court should also reverse the ruling of the district court
Principles and Terezín Declaration. The lack of any clear language to refuse
the Grosz heirs’ demand until April 12, 2006, is controlling. Solid equitable
grounds also support the tolling of the limitations period: (1) conformity
with U.S. foreign policy, (2) Rule 408, Fed. R. Evid., and (3) Lowry’s own
into litigation.”46
46
Grosz, at *13.
24
Case: 10-257 Document: 71 Page: 37 06/22/2010 56994 70
in many nations. The haste of the district court to dismiss this case –
anomalous when compared to the length of time for disposition of most civil
Holocaust-era claims.
It is bad enough that victims are often blamed for their misfortune. It
is worse that victims of grand larceny and mass murder have had to wait for
outrageous that judges are now eroding theses efforts to achieve “imperfect
justice.”
Jews and other “enemies of the State,” as defined by the Nazi party, after
have distorted history and convinced federal judges to accept the wildly
25
Case: 10-257 Document: 71 Page: 38 06/22/2010 56994 70
implausible view that Jews had no one but themselves to blame for their
museums push the date back even further.47 The district court in this case
went beyond the face of the complaint to decide a motion to dismiss on the
judgments not supported by the factual record in the case. This further
property, but there were – and are – rules. “To the victor belong the spoils,”
the ancient adage reads, but it absolutely does not apply to Nazi looting.
47
See Kreder, supra note 16, at 62 (Toledo Museum of Art won suit alleging 1938 sales
of paintings it bought in 1939 were voluntary), 65 (MoMA/Guggenheim declaratory
claim – sale date uncertain), 71 (MFA-Boston declaratory claim implying that 1938
Vienna sale after Anschluss to known art trafficker was voluntary), 75 (purchaser won
declaratory judgment regarding transfer after Viennese owner imprisoned in Dachau).
48
In unexplained, flat contradiction to Rule 8(c), Fed. R. Civ. P., the district court ruled
that claimants in art cases bear the burden of pleading “the statute of limitations in their
complaint[s].” 2010 Westlaw 88003, at *23; see Shady Grove Orthopedic Assocs. v.
Allstate Ins., 130 S.Ct. 1431 (2010) (demonstrating primacy of federal procedure in the
face of conflicting state law).
26
Case: 10-257 Document: 71 Page: 39 06/22/2010 56994 70
International law governing the use of force has prohibited looting for
specifically forbids "[a]ll seizure of ... works of art.” The antiquity of this
war crime does not make it moral or legal, any more than the antiquity of
of victims of Nazi persecution through the entire Nazi era. We have also
1998, the Vilnius Forum Declaration of 2000 and the Terezín Declaration of
27
Case: 10-257 Document: 71 Page: 40 06/22/2010 56994 70
should not now be heard to repudiate even the simplest of these directives.
that the Museum’s archival records for all collection works are open, as they
states:
difficult: at the outset the Nazis sought to hide the real nature of their theft;
now the possessors of stolen art are typically reluctant to admit it. For these
two reasons this Court should not allow any possessor of art with relevant
49
The Museum of Modern Art, 2009, The Provenance Research Project,
http://www.moma.org/collection/provenance/.
50
Id.
51
Id.
28
Case: 10-257 Document: 71 Page: 41 06/22/2010 56994 70
support its claim to undisputed ownership of the art at issue in this case. The
be best: “sunlight.”53
The return of property stolen by the Nazis is desired not only in high
value cases that motivate federal litigation, but also for objects sought for
cultural or sacred character (e.g., Torah scrolls) or for its association with
As painful as the burden of this memory may be, we dare not forget.
52
In an appeal from dismissal on a 12(b)(6) motion, all reasonable inferences should be
drawn against the moving party (Defendant-Appellee MoMA).
53
Louis Brandeis, Other People’s Money – and How Bankers Use It (1914).
54
Elie Wiesel, “Foreword,” in Eizenstat, supra note 2, at xi.
29
Case: 10-257 Document: 71 Page: 42 06/22/2010 56994 70
Conclusion
For the reasons stated above and in the briefs of the Plaintiffs-
Respectfully submitted,
30
Case: 10-257 Document: 71 Page: 43 06/22/2010 56994 70
APPENDIX
Case: 10-257 Document: 71 Page: 44 06/22/2010 56994 70
APPENDIX A
Particular Statements of Interest of Amici Curiae
The American Jewish Congress is a civil rights organization based in New York City,
with several regional chapters throughout the country. It is motivated by the need to
ensure the creative survival of the Jewish people, deeply cognizant of the Jewish
responsibility to participate fully in public life, inspired by Jewish teachings and values,
informed by liberal principles, dedicated to an activist and independent role, and
committed to making its decisions through democratic processes. Its mission is to protect
fundamental constitutional freedoms and American democratic institutions, particularly
the civil and religious rights and liberties of all Americans and the separation of church
and state; to advance the security and prosperity of the State of Israel and its democratic
institutions, and to support Israel's search for peaceful relations with its neighbors in the
region; to advance social and economic justice, women's equality, and human rights at
home and abroad; to remain vigilant against anti-Semitism, racism, and other forms of
bigotry, and to celebrate cultural diversity and promote unity in American life; and to
invigorate and enhance Jewish religious, institutional, communal and cultural life at
home and abroad, and seek creative ways to express Jewish identity, ethics and values.
The Commission for Art Recovery works in different countries to determine suitable
solutions, legislative or otherwise, to the still unfinished business of returning art taken
by the Nazis or as a result of their policies. In cooperation with lawyers, scholars, art
experts, and other appropriate groups, we identify the best plans and help put them into
practice; then we maintain an advisory role, monitoring progress and ensuring that
research results are made public. Through negotiation, we encourage European
governments to put into practice the Principles adopted at the Washington Conference on
Holocaust-Era Assets in December1998 and reinforced by the Declaration adopted at the
Vilnius International Forum of Holocaust Era-Looted Cultural Assets in October 2000,
and in the Terezín Declaration that concluded the Prague Conference on Holocaust-Era
Assets in June of 2009. The Commission for Art Recovery favors amicable resolution of
art-ownership disputes, but when this fails we have brought litigation against a
government or an institution that is unreasonably resistant to legitimate claims for the
return of stolen art.
a-1
Case: 10-257 Document: 71 Page: 45 06/22/2010 56994 70
Filippa Marullo Anzalone is a Professor of Law and Associate Dean for Library and
Technology Services at Boston College Law School in Newton, Massachusetts, where
she teaches a seminar on Art Law.
Yehuda Bauer is Professor Emeritus of History and Holocaust Studies at the Avraham
Harman Institute of Contemporary Jewry at the Hebrew University of Jerusalem and the
Director of the International Center for Holocaust Studies at Yad Vashem, the Holocaust
Martyrs' and Heroes' Remembrance Authority of the State of Israel, located in Jerusalem.
He has published or edited many books and scholarly articles on the Shoah. For example,
he is the author of Jews for Sale?: Nazi-Jewish Negotiations, 1933-1945 (1994); A
History of the Holocaust (rev. ed. 2001); Rethinking the Holocaust (2000); and The
Death of the Shtetl (2010).
Michael J. Bazyler is a Professor of Law and The "1939" Club Law Scholar in
Holocaust and Human Rights Studies at Chapman University School of Law in Orange,
California, where he teaches a course on Law and the Holocaust. He is the author of
Holocaust Justice: The Battle for Restitution in America’s Courts (2003), and the editor
of Holocaust Restitution: Perspectives on the Litigation and Its Legacy (2005).
Rabbi Bernard Dov Beliak is the founding president of the Hamif Gash Foundation.
a-2
Case: 10-257 Document: 71 Page: 46 06/22/2010 56994 70
Donald S. Burris is senior partner in the firm of Burris, Schoenberg & Walden, LLP, in
Los Angeles. He was co-counsel with his partner Randol Schoenberg in the landmark
litigation, Republic of Austria v. Altmann, 541 U.S. 677 (2004).
Judy Chicago and Donald Woodman are artists. They are the co-authors of The
Holocaust Project: From Darkness to Light (1993), an account of their journey to several
concentration camps and death camps in Europe, and the photography and painting that
ensued from this journey. The volume includes a study of the suffering, including torture
and death, inflicted upon prisoners detained at the slave labor camps around Mauthausen,
Austria, and in the death camps at Auschwitz and Treblinka in occupied Poland.
Hedy Epstein is a survivor of the Shoah who left her home in Kippenheim, Germany in
1939 at the age of 14 as part of the Kindertransport to England. Her story is narrated in
the Academy-Award winning film “Into the Arms of Strangers: Stories of the
Kindertransport” (2000) and in the companion volume of the same title. She lives in St.
Louis, and for decades she has been has been engaged in human rights and social justice
issues, especially in fair housing in the Greater St. Louis Area. She has also been
involved for decades in Holocaust education at all levels.
Hector Feliciano is an art historian and the author of The Lost Museum: The Nazi
Conspiracy to Steal the World's Greatest Works of Art (1998).
Rabbi Irving Greenberg was from 1974 to 1997 the founding president of the Jewish
National Center for Learning and Life (CLAL). From 1997 to 2000 (??) he served as the
a-3
Case: 10-257 Document: 71 Page: 47 06/22/2010 56994 70
President of the Jewish Life Network: Steinhardt Foundation. From 2000 to 2002 he
served as the Chair of the United States Holocaust Memorial Museum Council. He is the
author of numerous books, including Living in the Image of God: Jewish Teachings to
Perfect the World – Conversations with Rabbi Irving Greenberg (edited by Shalom
Freedman 1998); For the Sake of Heaven and Earth: The New Encounter between
Judaism and Christianity (2004).
Grace Cohen Grossman is an art historian and curator who lives in Los Angeles,
California.
Marcia Sachs Littell is Professor of Holocaust and Genocide Studies and Director of
the Master of Arts Program in Holocaust and Genocide Studies at the Richard Stockton
College of New Jersey. Her publications include Liturgies on the Holocaust: An
Interfaith Anthology (1986); Holocaust Education: A Resource Book for Teachers and
Professional Leaders (1985). Confronting the Holocaust: A Mandate for the 21st
Century. co-edited with Stephen Feinstein and Karen Schierman(1998), Women in the
Holocaust: Responses, Insights, Perspectives (2001); and A Century of Genocide co-
edited with Daniel Curran and Richard Libowitz (2002). She is the senior research
consultant to the Philadelphia Center on the Holocaust, Genocide and Human Rights.
Carrie Menkel-Meadow is A.B. Chettle, Jr. Professor of Law, Dispute Resolution and
Civil Procedure at the Georgetown Law Center, and Professor of Law at the University of
California, Irvine School of Law. She is a prolific scholar and lecturer on alternative
mechanisms of dispute resolution. In addition to her scholarship, research and teaching,
a-4
Case: 10-257 Document: 71 Page: 48 06/22/2010 56994 70
Professor Menkel-Meadow often serves as a mediator and arbitrator in public and private
settings and has trained lawyers, judges, diplomats, and mediators in the United States
and on five continents.
Carol Rittner, R.S.M., is Distinguished Professor of Holocaust & Genocide Studies, and
the Dr. Marsha Raticoff Grossman Professor of Holocaust Studies at The Richard
Stockton College of New Jersey. She is the author, editor, or co-editor of numerous
publications, including Courage to Care: Non-Jews Who Rescued Jews During the
Holocaust (1986); Different Voices: Women and the Holocaust (1993); Living with our
Differences: Beyond Hate (1994); The Holocaust and the Christian World (with Steven
Smith and Irena Steinfeldt, 2000); “Good News” after Auschwitz?: Christian Faith within
a Post-Holocaust World (2001); Pius XII and the Holocaust (2002), Will Genocide Ever
End? (2002), and Genocide in Rwanda: Complicity of the Churches? (2004). Dr. Rittner’s
current research interests include rescue during the Holocaust and other post-Holocaust
genocides; and, the use of rape as a weapon of war and genocide in the twentieth and
twenty-first centuries.
John K. Roth is the Edward J. Sexton Professor Emeritus of Philosophy and the
Founding Director of the Center for the Study of the Holocaust, Genocide, and Human
Rights (now the Center for Human Rights Leadership) at Claremont McKenna College,
where he taught from 1966 through 2006. In addition to service on the United States
Holocaust Memorial Council and on the editorial board for Holocaust and Genocide
Studies, he has published hundreds of articles and reviews and authored, co-authored, or
edited more than forty books, including Genocide and Human Rights: A Philosophical
Guide; Gray Zones: Ambiguity and Compromise in the Holocaust and Its Aftermath; and
Ethics During and After the Holocaust: In the Shadow of Birkenau. With Peter Hayes,
Roth is currently editing the Oxford Handbook of Holocaust Studies for the Oxford
University Press.
a-5
Case: 10-257 Document: 71 Page: 49 06/22/2010 56994 70
the Art and International Law Practice Group at Herrick, Feinstein LLP in New York
City. She is currently a member of the Cultural Properties Legislation Committee of the
Archaeological Institute of America and Vice Chair of the Art and Cultural Heritage
Committee of the American Society of International Law, serves on the Board of the
Lawyers Committee for Cultural Heritage Preservation, and is a member of the Art Law
Committee of the Association of the Bar of the City of New York. She participated in the
international conference on Restitution of Holocaust-Era Assets in Prague in June of
2009.
Stephen D. Smith is a theologian with a particular interest in the impact of the Holocaust
on religious and philosophical thought and practice. His publications include Making
Memory: Creating Britain’s First Holocaust Centre; Forgotten Places: The Holocaust
and the Remnants of Destruction; and The Holocaust and the Christian
World. He founded the UK Holocaust Centre in Nottinghamshire, England, and
cofounded the Aegis Trust for the prevention of crimes against humanity and genocide,
and was also the inaugural Chairman of the Holocaust Memorial Day Trust, which runs
the National Holocaust Memorial Day in the United Kingdom. He is currently
the Executive Director of the Shoah Foundation Institute for Visual History and
Education at the University of Southern California.
Fritz Weinschenk was born in Mainz, Germany, of Jewish parents. In 1935 his family
and emigrated to the United States to escape Nazi persecution of Jews. He fought in
World War II with the US Army and survived the landing at Omaha Beach. From 1946 to
1950 he served as a member of the US Army Counter Intelligence Corps in Germany.
Admitted to the Bar of New York in 1953, he was active in many restitution and
indemnification cases. From 1962 to 1995 he served as a Commissioner to German courts
and prosecutors in over 200 Nazi-crimes cases, and was twice awarded the
Bundesverdienstkreuz (Federal Service Award). He obtained the degree of Doktor Juris
from Mainz University summa cum laude. His record of pro bono service includes
membership on the Board of the United Restitution Organization, the Conference on
Jewish Material Claims against Germany, and the Jewish Philanthropic Fund of 1933,
Inc.
a-6
Case: 10-257 Document: 71 Page: 50 06/22/2010 56994 70
Appendix B
Disposition of Federal Holocaust-Era Art Claims Since 2004
CASES LOST BY HOLOCAUST VICTIMS OR THEIR HEIRS
a-7
Case: 10-257 Document: 71 Page: 51 06/22/2010 56994 70
United States v. 99 Civ. 9940 2002 WL 553532 Civil forfeiture action filed after grand jury
Portrait of Wally, (MBM) (S.D.N.Y. Apr. 12, subpoena to seize painting was quashed in state
A Painting by 2002). court in 1998. Federal case has been pending
Egon Schiele since 1999. Trial set for 2010.
Cassirer v. Spain CV 05-3459- 461 F. Supp. 2d Court denied Spain’s motion to dismiss on FSIA
GAF(CTX) 1157 (C.D. Cal. grounds under the expropriation exception.
2006). Interlocutory appeal affirmed this ruling Sept. 8,
2009. Rehearing en banc Mar. 24, 2010.
a-8
Case: 10-257 Document: 71 Page: 52 06/22/2010 56994 70
Appendix C
Washington Principles on Holocaust-Era Assets (December 3, 1998)
http://www.state.gov/www/regions/eur/holocaust/heacappen.pdf
a-10
Case: 10-257 Document: 71 Page: 54 06/22/2010 56994 70
1. Recognizing that Holocaust (Shoah) survivors and other victims of the Nazi regime
and its collaborators suffered unprecedented physical and emotional trauma during their
ordeal, the Participating States take note of the special social and medical needs of all
survivors and strongly support both public and private efforts in their respective states to
enable them to live in dignity with the necessary basic care that it implies.
2. Noting the importance of restituting communal and individual immovable property that
belonged to the victims of the Holocaust (Shoah) and other victims of Nazi persecution,
the Participating States urge that every effort be made to rectify the consequences of
wrongful property seizures, such as confiscations, forced sales and sales under duress of
property, which were part of the persecution of these innocent people and groups, the vast
majority of whom died heirless.
3. Recognizing the progress that has been made in research, identification, and restitution
of cultural property by governmental and non-governmental institutions in some states
since the 1998 Washington Conference on Holocaust-Era Assets and the endorsement of
the Washington Conference Principles on Nazi-Confiscated Art, the Participating States
affirm an urgent need to strengthen and sustain these efforts in order to ensure just and
fair solutions regarding cultural property, including Judaica that was looted or displaced
during or as a result of the Holocaust (Shoah).
4. Taking into account the essential role of national governments, the Holocaust (Shoah)
survivors’ organizations, and other specialized NGOs, the Participating States call for a
coherent and more effective approach by States and the international community to
ensure the fullest possible, relevant archival access with due respect to national
legislation. We also encourage States and the international community to establish and
support research and education programs about the Holocaust (Shoah) and other Nazi
crimes, ceremonies of remembrance and commemoration, and the preservation of
memorials in former concentration camps, cemeteries and mass graves, as well as of
other sites of memory.
5. Recognizing the rise of Anti-Semitism and Holocaust (Shoah) denial, the Participating
States call on the international community to be stronger in monitoring and responding to
such incidents and to develop measures to combat anti-Semitism.
The Welfare of Holocaust (Shoah) Survivors and other Victims of Nazi Persecution
Recognizing that Holocaust (Shoah) survivors and other victims of Nazi persecution,
including those who experienced the horrors of the Holocaust (Shoah) as small and
helpless children, suffered unprecedented physical and emotional trauma during their
ordeal.
Mindful that scientific studies document that these experiences frequently result in
heightened damage to health, particularly in old age, we place great priority on dealing
with their social welfare needs in their lifetimes. It is unacceptable that those who
suffered so greatly during the earlier part of their lives should live under impoverished
circumstances at the end.
a-11
Case: 10-257 Document: 71 Page: 55 06/22/2010 56994 70
1. We take note of the fact that Holocaust (Shoah) survivors and other victims of Nazi
persecution have today reached an advanced age and that they have special medical and
health needs, and we therefore support, as a high priority, efforts to address in their
respective states the social welfare needs of the most vulnerable elderly victims of Nazi
persecution – such as hunger relief, medicine and homecare as required, as well as
measures that will encourage intergenerational contact and allow them to overcome their
social isolation. These steps will enable them to live in dignity in the years to come. We
strongly encourage cooperation on these issues.
2. We further take note that several states have used a variety of creative mechanisms to
provide assistance to needy Holocaust (Shoah) survivors and other victims of Nazi
persecution, including special pensions; social security benefits to non-residents; special
funds; and the use of assets from heirless property. We encourage states to consider these
and other alternative national actions, and we further encourage them to find ways to
address survivors’ needs.
Immovable (Real) Property Noting that the protection of property rights is an essential
component of a democratic society and the rule of law,
Acknowledging the immeasurable damage sustained by individuals and Jewish
communities as a result of wrongful property seizures during the Holocaust (Shoah),
Recognizing the importance of restituting or compensating Holocaust-related
confiscations made during the Holocaust era between 1933-45f and as its immediate
consequence,
Noting the importance of recovering communal and religious immovable property in
reviving and enhancing Jewish life, ensuring its future, assisting the welfare needs of
Holocaust (Shoah) survivors, and fostering the preservation of Jewish cultural heritage,
1. We urge, where it has not yet been effectively achieved, to make every effort to
provide for the restitution of former Jewish communal and religious property by either in
rem restitution or compensation, as may be appropriate; and
2. We consider it important, where it has not yet been effectively achieved, to address the
private property claims of Holocaust (Shoah) victims concerning immovable (real)
property of former owners, heirs or successors, by either in rem restitution or
compensation, as may be appropriate, in a fair, comprehensive and nondiscriminatory
manner consistent with relevant national law and regulations, as well as international
agreements. The process of such restitution or compensation should be expeditious,
simple, accessible, transparent, and neither burdensome nor costly to the individual
claimant; and we note other positive legislation in this area.
3. We note that in some states heirless property could serve as a basis for addressing the
material necessities of needy Holocaust (Shoah) survivors and to ensure ongoing
education about the Holocaust (Shoah), its causes and consequences.
4. We recommend, where it has not been done, that states participating in the Prague
Conference consider implementing national programs to address immovable (real)
a-12
Case: 10-257 Document: 71 Page: 56 06/22/2010 56994 70
property confiscated by Nazis, Fascists and their collaborators. If and when established
by the Czech Government, the European Shoah Legacy Institute in Terezín shall facilitate
an intergovernmental effort to develop non-binding guidelines and best practices for
restitution and compensation of wrongfully seized immovable property to be issued by
the one-year anniversary of the Prague Conference, and no later than June 30, 2010, with
due regard for relevant national laws and regulations as well as international agreements,
and noting other positive legislation in this area.
Jewish Cemeteries and Burial Sites Recognizing that the mass destruction perpetrated
during the Holocaust (Shoah) put an end to centuries of Jewish life and included the
extermination of thousands of Jewish communities in much of Europe, leaving the graves
and cemeteries of generations of Jewish families and communities unattended, and
Aware that the genocide of the Jewish people left the human remains of hundreds of
thousands of murdered Jewish victims in unmarked mass graves scattered throughout
Central and Eastern Europe,
We urge governmental authorities and municipalities as well as civil society and
competent institutions to ensure that these mass graves are identified and protected and
that the Jewish cemeteries are demarcated, preserved and kept free from desecration, and
where appropriate under national legislation could consider declaring these as national
monuments.
Nazi-Confiscated and Looted Art Recognizing that art and cultural property of victims
of the Holocaust (Shoah) and other victims of Nazi persecution was confiscated,
sequestered and spoliated, by the Nazis, the Fascists and their collaborators through
various means including theft, coercion and confiscation, and on grounds of
relinquishment as well as forced sales and sales under duress, during the Holocaust era
between 1933-45 and as an immediate consequence, and
Recalling the Washington Conference Principles on Nazi-Confiscated Art as endorsed at
the Washington Conference of 1998, which enumerated a set of voluntary commitments
for governments that were based upon the moral principle that art and cultural property
confiscated by the Nazis from Holocaust (Shoah) victims should be returned to them or
their heirs, in a manner consistent with national laws and regulations as well as
international obligations, in order to achieve just and fair solutions,
1. We reaffirm our support of the Washington Conference Principles on Nazi-Confiscated
Art and we encourage all parties including public and private institutions and individuals
to apply them as well,
2. In particular, recognizing that restitution cannot be accomplished without knowledge
of potentially looted art and cultural property, we stress the importance for all
stakeholders to continue and support intensified systematic provenance research, with
due regard to legislation, in both public and private archives, and where relevant to make
the results of this research, including ongoing updates, available via the internet, with due
regard to privacy rules and regulations. Where it has not already been done, we also
a-13
Case: 10-257 Document: 71 Page: 57 06/22/2010 56994 70
a-14
Case: 10-257 Document: 71 Page: 58 06/22/2010 56994 70
Acknowledging in particular that more and more archives have become accessible to
researchers and the general public, as witnessed by the Agreement reached on the
archives of the International Tracing Service (ITS) in Bad Arolsen, Germany,
Welcoming the return of archives to the states from whose territory they were removed
during or as an immediate consequence of the Holocaust (Shoah),
We encourage governments and other bodies that maintain or oversee relevant archives to
make them available to the fullest extent possible to the public and researchers in
accordance with the guidelines of the International Council on Archives, with due regard
to national legislation, including provisions on privacy and data protection, while also
taking into account the special circumstances created by the Holocaust era and the needs
of the survivors and their families, especially in cases concerning documents that have
their origin in Nazi rules and laws.
Education, Remembrance, Research and Memorial Sites Acknowledging the
importance of education and remembrance about the Holocaust (Shoah) and other Nazi
crimes as an eternal lesson for all humanity,
Recognizing the preeminence of the Stockholm Declaration on Holocaust Education,
Remembrance and Research of January 2000,
Recognizing that the Universal Declaration of Human Rights was drafted in significant
part in the realization of the horrors that took place during the Holocaust, and further
recognizing the U.N. Convention on the Prevention and Punishment of the Crime of
Genocide,
Recalling the action of the United Nations and of other international and national bodies
in establishing an annual day of Holocaust remembrance,
Saluting the work of the Task Force for International Cooperation on Holocaust
Education, Remembrance and Research (ITF) as it marks its tenth anniversary, and
encouraging the States participating in the Prague Conference to cooperate closely with
the Task Force, and
Repudiating any denial of the Holocaust (Shoah) and combating its trivialization or
diminishment, while encouraging public opinion leaders to stand up against such denial,
trivialization or diminishment,
1. We strongly encourage all states to support or establish regular, annual ceremonies of
remembrance and commemoration, and to preserve memorials and other sites of memory
and martyrdom. We consider it important to include all individuals and all nations who
were victims of the Nazi regime in a worthy commemoration of their respective fates,
2. We encourage all states as a matter of priority to include education about the Holocaust
(Shoah) and other Nazi crimes in the curriculum of their public education systems and to
provide funding for the training of teachers and the development or procurement of the
resources and materials required for such education.
3. Believing strongly that international human rights law reflects important lessons from
history, and that the understanding of human rights is essential for confronting and
a-15
Case: 10-257 Document: 71 Page: 59 06/22/2010 56994 70
members of agencies, organizations and other entities which address educational, cultural
and social issues around the world, to help disseminate information about resolutions and
principles dealing with the areas covered by the Terezín Declaration.
A more complete description of the Czech Government´s concept for the Terezín Institute
and the Joint Declaration of the European Commission and the Czech EU Presidency can
be found on the website for the Prague Conference and will be published in the
conference proceedings.
List of States: Albania, Argentina, Australia, Austria, Belarus, Belgium, Bosnia and
Herzegovina, Brazil, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark,
Estonia, Finland, France FYROM, Germany, Greece, Hungary, Ireland, Israel, Italy,
Latvia, Lithuania, Luxembourg, Malta, Moldova, Montenegro, The Netherlands, Norway,
Poland, Portugal, Romania, Russia, Slovakia, Slovenia, Spain, Sweden, Switzerland,
Turkey, Ukraine, United Kingdom, United States, Uruguay, The Holy See (observer),
Serbia (observer)
a-17
Case: 10-257 Document: 71 Page: 61 06/22/2010 56994 70
APPENDIX E
Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era
(1933-1945)
June 4, 1998
AAMD Statement of Purpose: "The purpose of the AAMD is to aid its members in
establishing and maintaining the highest professional standards for themselves and the
museums they represent, thereby exerting leadership in increasing the contribution of art
museums to society."
I. Statement of Principles
A. AAMD recognizes and deplores the unlawful confiscation of art that constituted one
of the many horrors of the Holocaust and World War II.
B. American museums are proud of the role they, and members of their staffs, played
during and after World War II, assisting with the preservation and restitution of hundreds
of thousands of works of art through the U.S. Military’s Monuments, Fine Arts and
Archives section.
C. AAMD reaffirms the commitment of its members to weigh, promptly and thoroughly,
claims of title to specific works in their collections.
D. AAMD urges the prompt creation of mechanisms to coordinate full access to all
documentation concerning this spoliation of art, especially newly available information.
To this end, the AAMD encourages the creation of databases by third parties, essential to
research in this area, which will aid in the identification of any works of art which were
unlawfully confiscated and which of these were restituted. Such an effort will
complement long-standing American museum policy of exhibiting, publishing and
researching works of art in museum collections in order to make them widely available to
scholars and to the general public. (See III. below.)
E. AAMD endorses a process of reviewing, reporting, and researching the issue of
unlawfully confiscated art which respects the dignity of all parties and the complexity of
the issue. Each claim presents a unique situation which must be thoroughly reviewed on a
case-by-case basis.
II. Guidelines
AAMD has developed the following guidelines to assist museums in resolving claims,
reconciling the interests of individuals who were dispossessed of works of art or their
heirs together with the fiduciary and legal obligations and responsibilities of art museums
and their trustees to the public for whom they hold works of art in trust.
A. Research Regarding Existing Collections
1. As part of the standard research on each work of art in their collections, members of
the AAMD, if they have not already done so, should begin immediately to review the
provenance of works in their collections to attempt to ascertain whether any were
unlawfully confiscated during the Nazi/World War II era and never restituted.
a-18
Case: 10-257 Document: 71 Page: 62 06/22/2010 56994 70
2. Member museums should search their own records thoroughly and, in addition, should
take all reasonable steps to contact established archives, databases, art dealers, auction
houses, donors, art historians and other scholars and researchers who may be able to
provide Nazi/World-War-II-era provenance information.
3. AAMD recognizes that research regarding Nazi/World-War-II-era provenance may
take years to complete, may be inconclusive and may require additional funding. The
AAMD Art Issues Committee will address the matter of such research and how to
facilitate it.
B. Future Gifts, Bequests, and Purchases
1. As part of the standard research on each work of art:
(a) member museums should ask donors of works of art (or executors in the case of
bequests) to provide as much provenance information as possible with regard to the
Nazi/World War II era and
(b) member museums should ask sellers of works of art to provide as much provenance
information as possible with regard to the Nazi/World War II era.
2. Where the Nazi/World-War-II-era provenance is incomplete for a gift, bequest, or
purchase, the museum should search available records and consult appropriate databases
of unlawfully confiscated art (see III below).
(a) In the absence of evidence of unlawful confiscation, the work is presumed not to have
been confiscated and the acquisition may proceed.
(b) If there is evidence of unlawful confiscation, and there is no evidence of restitution,
the museum should not proceed to acquire the object and should take appropriate further
action.
3. Consistent with current museum practice, member museums should publish, display or
otherwise make accessible all recent gifts, bequests, and purchases thereby making them
available for further research, examination and study.
4. When purchasing works of art, museums should seek representations and warranties
from the seller that the seller has valid title and that the work of art is free from any
claims.
C. Access to Museum Records
1. Member museums should facilitate access to the Nazi/World-War-II-era provenance
information of all works of art in their collections.
2. Although a linked database of all museum holdings throughout the United States does
not exist at this time, individual museums are establishing web sites with collections
information and others are making their holdings accessible through printed publications
or archives. AAMD is exploring the linkage of existing sites which contain collection
information so as to assist research.
D. Discovery of Unlawfully Confiscated Works of Art
1. If a member museum should determine that a work of art in its collection
a-19
Case: 10-257 Document: 71 Page: 63 06/22/2010 56994 70
was illegally confiscated during the Nazi/World War II era and not restituted, the
museum should make such information public.
2. In the event that a legitimate claimant comes forward, the museum should offer to
resolve the matter in an equitable, appropriate, and mutually agreeable manner.
3. In the event that no legitimate claimant comes forward, the museum should
acknowledge the history of the work of art on labels and publications referring to such a
work.
E. Response to Claims Against the Museum
1. If a member museum receives a claim against a work of art in its collection related to
an illegal confiscation during the Nazi/World War II era, it should seek to review such a
claim promptly and thoroughly. The museum should request evidence of ownership from
the claimant in order to assist in determining the provenance of the work of art.
2. If after working with the claimant to determine the provenance, a member museum
should determine that a work of art in its collection was illegally confiscated during the
Nazi/World War II era and not restituted, the museum should offer to resolve the matter
in an equitable, appropriate, and mutually agreeable manner.
3. AAMD recommends that member museums consider using mediation wherever
reasonably practical to help resolve claims regarding art illegally confiscated during the
Nazi/World War II era and not restituted.
F. Incoming Loans
1. In preparing for exhibitions, member museums should endeavor to review provenance
information regarding incoming loans.
2. Member museums should not borrow works of art known to have been illegally
confiscated during the Nazi/World War II era and not restituted unless the matter has
been otherwise resolved (e.g., II.D.3 above).
III. Database Recommendations
A. As stated in I.D. (above), AAMD encourages the creation of databases by third
parties, essential to research in this area. AAMD recommends that the databases being
formed include the following information (not necessarily all in a single database):
1. claims and claimants
2. works of art illegally confiscated during the Nazi/World War II era
3. works of art later restituted
B. AAMD suggests that the entity or entities creating databases establish professional
advisory boards that could provide insight on the needs of various users of the database.
AAMD encourages member museums to participate in the work of such boards.
a-20
Case: 10-257 Document: 71 Page: 64 06/22/2010 56994 70
The Commission recognized that provenance research is difficult, expensive and time-
consuming, often involving access to records that are hard or impossible to obtain, and
that most museums lack the resources to accomplish this.
The Commission further found that the museum community has begun to develop tools
to achieve full disclosure and will participate in the process of creating a searchable
central registry of Nazi/World War II Era cultural property held by American museums,
beginning with European paintings and Judaica.
Consistent with the report of the Commission, the Task Force issues the following
addendum to its June 1998 report:
It should be the goal of member museums to make full disclosure of the results of their
ongoing provenance research on those works of art in their collections created before
1946, transferred after 1932 and before 1946, and which were or could have been in
continental Europe during that period, giving priority to European paintings and Judaica.
a-21
Case: 10-257 Document: 71 Page: 65 06/22/2010 56994 70
APPENDIX F
a-22
Case: 10-257 Document: 71 Page: 66 06/22/2010 56994 70
a-23
Case: 10-257 Document: 71 Page: 67 06/22/2010 56994 70
a-24
Case: 10-257 Document: 71 Page: 68 06/22/2010 56994 70
a-25
Case: 10-257 Document: 71 Page: 69 06/22/2010 56994 70
a-26
Case: 10-257 Document: 71 Page: 70 06/22/2010 56994 70
CERTIFICATE OF SERVICE
The undersigned counsel certifies that, on June 22, 2010, she caused to be
served the Brief of Amici Curiae upon:
Raymond Dowd
Dunnington, Bartholow & Miller LLP
1359 Broadway, Suite 600
New York, New York 10018
Counsel for Plaintiff-Appellant
by transmitting a PDF via email and sending one courtesy copy via 1st class mail,
prepaid. The required number of copies of the Brief were sent via Fed Ex and email
to the Clerk of Court on June 22, 2010.
__/s/______________________________________
Jennifer A. Kreder