Stolen art and cultural treasures: An example from World War II

By Laurie Leclair

An advertisement in the Globe and Mail on Saturday November 14th announced that a prominent art house would host an upcoming “Inuit and First Nations Art Auction” to take place in Ottawa later that week. Three hundred and thirty-three pieces were up for sale by auction. Many of the pieces were modern Arctic sculpture and prints from the estates of both renowned and anonymous collectors. Some works were undoubtedly legitimately purchased from the artists themselves or through their agents.

But as one went deeper into the catalogue other pieces having a much more curious provenance emerged. Some examples included: An ivory bear sculpture from St. Lawrence Island, Alaska dating from c. AD 100-300, and valued at auction $10,000 to $15,000, a “Tlingit or Tsimshian raven dance rattle” dating from between 1870 and 1880 and valued between $50,000 and $70,000, a Haida Dance Blanket from 1870, estimated to bring between $18,000 and $24,000 at auction. There was also a small bowl in the shape of a beaver from the same time period, “worth” between $40,000 and $60,000; and perhaps most discomforting, from a “private collection in Toronto”, a “scrap of a Inuit Shaman’s Robe”, set at between $3,000 and $5,000.

As illustrated by the monetary values given above, these pieces are highly coveted. For a private collector with deep pockets, the purity and simplicity of much of what is classed as aboriginal “art” offers an appealing aesthetic. For museums, these pieces may be considered as important heritage objects from a North American or colonial past. Because of these rationalizations, First Nations cultural treasures are now found in collections throughout the world.

In early November at the Toronto Sheraton Centre, Donald S Burris gave a talk on his work in repatriating art stolen by the Nazis during World War II, as part of a Chiefs of Ontario Heritage and Burials Policy Forum. Burris, the senior partner in Burris, Schoenberg & Walden, in Santa Monica California, spoke to the group about his experiences as a “looted art attorney” in hopes that those people present could “successfully apply the principles and precedents developed by the American courts to aid in the repatriation of the First Nations Artifacts and Ancestors”.

Burris informed his audience that between 1933 and 1945 the Nazis seized or forced the sale of at least 1/5th, and possibly 1/3rd, of all the art in existence in Western Europe. Some of the works were intended to be housed at the planned Führermuseum to be built in Adolph Hitler’s hometown of Linz, Austria. Other stolen pieces, mainly modern works by artists like Van Gough, Chagall, Matisse and Picasso were considered “degenerate” art, as their impressionist, cubist or surrealist styles theoretically evoked revulsion in their viewer, but more often, reports Burris, ended up on the walls of high ranking Nazi party members. It is believed that $20.5 billion in art was stolen during the war. A 2013 discovery of more cached pieces raises that amount another 1.4 billion dollars. And still, an estimated 100,000 pieces of Nazi-stolen art remains lost.

There were several methods through which rightful owners were separated from their treasures. Apart from outright theft from Jewish households and gallery owners Burris spoke about the practice of “forced sales”, which occurred when families sold treasures and heirlooms to meet the state taxes and penalties imposed upon them in the years leading up to the Holocaust or soon afterwards when the same dealers and collectors were made to “sell” priceless paintings at a much undervalued rate in an attempt to secure their families’ very survival. Later still, much of the looted art was again retaken at the end of the war by local civilians or Allied soldiers who either intentionally or inadvertently kept the pieces for themselves or simply stored them away “far from their original homelands”.

While it would be considered inappropriate to some to liken the actions of “collectors” of aboriginal cultural treasures to that of the Nazis some parts of this story will resonate, particularly with the difficulty of repatriation. While much of Burris’ talk discussed procedures used to achieve restitution in specific cases similarities emerge between the application of law surrounding looted art and the theft of stolen First Nations cultural treasures. For example, while in American law it remains that “cultural property wrongfully taken from its rightful owners should be returned to those owners” the application of this belief is not so cut and dried. For lawyers representing museums, galleries or private collectors might counter with procedural defenses, or in other cases there may be competing interests between heirs. There are also instances where a claimant may live in one country but attempt to retrieve works housed in another part of the world, subject to a different set of property laws. All of which stall the process, adding more time and financial cost to the proceedings.

To help deal with these legal dilemmas, American courts developed the Washington Conference Principals on Nazi-confiscated Art released in December 1998.

Many of the eleven principles could, with some rephrasing, apply to the repatriation of stolen First Nations cultural treasures. The Eleven Washington Conference principals are:

1. Art that had been confiscated by the Nazis and not subsequently restituted should be identified.
2. Relevant records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives.
3. Resources and personnel should be made available to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently restituted.
4. In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.
5. Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs.
6. Efforts should be made to establish a central registry of such information.
7. Pre-War owners and their heirs should be encouraged to come forward and make known their claims to art that was confiscated by the Nazis and not subsequently restituted.
8. If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case.
9. If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, can not be identified, steps should be taken expeditiously to achieve a just and fair solution.
10. Commissions or other bodies established to identify art that was confiscated by the Nazis and to assist in addressing ownership issues should have a balanced membership.
11. Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.
[Taken from U. S. Department of State website: http://www.state.gov/p/eur/rt/hlcst/122038.htm]

Burris, who has practiced law for over four decades, has noticed a growing recognition in international law and among people who work within this legal community including museums and politicians, to abide by the sentiments codified in the above Washington Principles.

With help from organizations like the International Foundation for Art Research, New York [http://www.ifar.org/] and London’s Art Loss Register [http://www.artloss.com/] people who are either looking for art or wanting to buy a piece in good faith can do so with a strong moral compass. Moreover, many auction houses, museums and private collectors are avoiding those works of art that have serious gaps in their provenance between 1933 and 1945. But Burris points out that this is still a relatively discretionary application.

For Canada, there in no legislation in place that replicates the model set out in the Washington Principals, an omission which enables some art sellers, like the Ottawa auction house cited at the beginning of this article, to operate within the law. Also, the absence of written records or photographic evidence supporting the provenance of lost and stolen First Nation cultural treasures offers an additional evidentiary obstacle to claimant groups and their legal teams. But this challenge also serves to underscore the continued importance of a community’s Traditional Knowledge Keepers and material culture experts as well as the ethical duty of museums and private institutions to work towards reconciliation and resolution.