No one knows exactly how much art and cultural property the Nazis stole during what Agnes Peresztegi has called "the greatest art theft in history." According to the Holocaust-Era Looted Art: A World-Wide Preliminary Overview, presented at the 2009 Holocaust Era Assets Conference in Prague, a "very considerable amount of looted movable artwork...and [cultural] property" held both privately and publicly remains to be recovered more than seventy years later. That same overview found that the United States had by that time only made substantial (not major) progress towards implementing the 1998 Washington Conference Principles on Nazi-Confiscated Art and subsequent resolutions. That remains true today. In short, more can be done.
The Holocaust Expropriated Art Recovery Act of 2016
On April 7, 2016, Senators Charles Schumer, John Cornyn, Ted Cruz and Richard Blumenthal introduced the Holocaust Expropriated Art Recovery Act of 2016, S. 2763 (the "HEAR Act") to "help facilitate the return of artwork stolen by Nazis during the Holocaust to their rightful owners or heirs." Read Sen. Schumer's press release here. The HEAR Act would allow civil claims or causes of action to recover art or cultural property unlawfully lost during the Nazi era or damages caused by the taking or detaining of such art or cultural property to be commenced, nationwide, within six years of the claimant's actual discovery of (1) the identity and location of the art or cultural property and (2) information or facts sufficient to indicate that the claimant has a claim for a possessory interest in that art or cultural property. This new six-year statute of limitations would preempt any other statutes of limitation or passage-of-time defenses and allow cases to be heard on their merits that might otherwise be barred by procedural hurdles.
The HEAR Act does not create a new cause of action and will not apply retroactively – it will apply to claims or actions pending on the date of its enactment or filed after enactment but before 2027. Such claims or actions may include those: (1) that were dismissed before enactment of the Act based on expiration of a federal or state statute of limitations, laches or any other passage-of-time defense; and (2) in which final judgment has not been entered. The Act defines "persecution during the Nazi Era" as "any persecution by the Nazis or their allies during the period from January 1, 1933, to December 31, 1945, that was based on race, ethnicity, or religion," and "unlawfully lost" as "includ[ing] any theft, seizure, forced sale, sale under duress, or any other loss of an artwork or cultural property that would not have occurred absent persecution during the Nazi era." The entire bill is available here.
Testimony in Support of the HEAR Act and Its Possible Implications
On June 7, 2016, the Senate Judiciary Subcommittee on Constitution, Civil Rights and Human Rights heard testimony from Senator Chuck Grassley, former Ambassador Ronald S. Lauder, Dame Helen Mirren, Monica Dugot, Agnes Peresztegi and Simon Goodman in support of the Act.
Mr. Goodman, a plaintiff in the first Nazi looting case settled in the United States, continues to search for over 1,000 pieces of art and cultural property taken from his family during the Nazi era. Had Goodman v. Searle gone to trial, the applicable statute of limitations – New York's demand-and-refusal rule or Illinois' discovery rule that expires after five years – would have been an issue for the court. In his Senate testimony, Goodman also discussed the digitization of Nazi records, a step that will help him – and many other potential claimants – locate art and cultural property taken during the Nazi era. For example, in April 2016, Goodman was able to use Dutch online archives to locate a painting removed from his family's home in 1940.
According to Ms. Peresztegi's testimony, the six-year rule proposed in this bill was the product of a decade of discussions among museums, art professionals and claimant representatives. This consortium agreed that six years is long enough to facilitate negotiation and amicable resolution of restitution claims, and encourage museums to complete the provenance of their holdings and actively engage in restitution of Nazi-plundered art and cultural property. However, most United States museums are nonprofits without the research resources of, for instance, auction houses to thoroughly examine the provenance of those holdings – are their available resources up to this task? (For a summary of auction house resources, please see Ms. Dugot's description of Christie's provenance research abilities.)
The HEAR Act aims to increase the number of claims brought in the United States by eliminating the need to consider time-based procedural defenses on a state-by-state basis. Claimants and their counsel will only have to worry about one time-based defense: has it been six years since the claimant actually discovered the art or cultural property's identity and location? The HEAR Act, coupled with newly available digital records, will also facilitate the return of art and cultural property to families that owned them prior to the Nazi era – and what those claimants do with the art or cultural property on its return will have an impact on the art industry. Museums may be able to borrow rarely-seen works and share them with the public, auction houses may see an influx in consignments, and collectors may have once-in-a-lifetime opportunities.
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