A US federal court's ruling in a dispute over a Nazi-era painting has been absent for close to a decade.
By MARILYN HENRY
To distort T.S. Eliot, this is the way the Nazi-era looted art craze began in the late 1990s: with a bang, not a whimper.
Actually, with quite a few bangs. But a decade later, as one gasps toward the end of the art restitution claim that began the tumult, many involved in the field are exhausted, frustrated and financially tapped out, probably more in tune with Eliot's original: "This is the way the world ends/Not with a bang but a whimper."
The first bang came in January 1998, when the Manhattan district attorney, Robert Morgenthau, detained two Egon Schiele paintings on temporary loan from the Leopold Museum in Vienna to New York's Museum of Modern Art (MoMA). Two separate families claimed that the paintings had been seized in Austria during the Nazi era. Morgenthau's idea was to hold the paintings until their history could be clarified.
His action terrified museums (including the Jewish Museum); they feared that international lending to New York institutions would stop, or they would be subjected to sanctions for failing to honor contracts to return borrowed works. They also feared that claims for Nazi-era looted art would strip museum walls bare.
One Schiele claim collapsed. The second, however, for Schiele's painting Portrait of Wally, went through three New York state courts, with decisions - more bangs - that left heads spinning. First, a state court ruled in May 1998 that Morgenthau had exceeded his authority in detaining the artworks; then a state appellate court ruled for Morgenthau in March 1999. Then, on September 21, 1999, came another bang: New York's highest court ruled against Morgenthau. Wally would be going back to Vienna two years after it had arrived in New York for a three-month exhibition.
THAT RULING 10 years ago was seen as a landmark triumph for the museum world. Morgenthau, however, called it "a sad day," saying the decision was "wrong both as a matter of law and policy.'' But wait. Here comes the Big Bang. Some triumphs are short-lived. Soon after the Manhattan district attorney was overruled, the federal government stepped in. The US attorney in Manhattan obtained a warrant to seize Wally on grounds that it was stolen property, dating back to events that began in Vienna in 1938.
However, there haven't been any bangs, big or little, for years. The case that sent the museum world into convulsions has been in federal court in Manhattan for a decade. The legal question waiting to be resolved is whether the Schiele is to be considered stolen and therefore illegally brought into the US for the MoMA exhibition, violating the National Stolen Property Act.
This was, and is, an unusual case, first because the government (Morgenthau, then federal prosecutors) stepped in and because it appears that the government is on the side of the claimants. It is not. The government does not represent the claimants, but their interests coincide.
The federal court is not determining ownership. However, if the court rules that Wally was stolen from Lea Bondi Jaray, a Jewish Viennese art dealer who fled the Nazis, the Leopold Museum, which later acquired it, would be compelled to forfeit it, and the heirs would recover it.
American museums were concerned that the government proceedings threatened to criminalize private civil disputes on art ownership. The stakes are high. Wally, the portrait of Schiele's mistress, had an estimated value of some $2 million in 1997 when it came to New York for the MoMA exhibition. Its value is now perhaps 10 times that.
THIS WAS the lawsuit that put Nazi-era art claims on the international agenda. If Wally has become a poster child for the pursuit of justice, it also is a symbol of the inadequacies of the traditional legal system to resolve Holocaust-era ownership disputes in an expeditious and inexpensive manner.
The court is being very deliberate. The Leopold Museum aggressively argues its case, while the American prosecutors argue theirs. This all takes time, racks up huge expenses for legal and archival research, interviewing witnesses and arranging expert testimony in multiple countries, and fees for travel and translations. There is no telling when it will end.
Everyone seems to agree this is not a good system for these kinds of claims.
Late in 1998, in the wake of Wally, diplomats at an international conference at the State Department agreed to the so-called Washington Principles on Nazi-Confiscated Art. These called for "just and fair solutions" to ownership disputes and for "alternative dispute resolution mechanisms for resolving ownership issues." Only a few European nations have developed such mechanisms.
Coincidentally, this month, on the 10th anniversary of the federal government's seizure of Wally, the State Department's Special Envoy for Holocaust Issues will convene a "town hall" meeting. It will review yet more principles - those developed at a diplomatic conference in Prague in June, as a sort of follow-up to the Washington Principles. The meeting is seeking expert views on the development of "alternative mechanisms to resolve claims for artworks displaced as a result of the Holocaust and World War II." If this sounds painfully repetitive and slow, it is. Egon Schiele painted his portrait of Wally Neuzil in 1912.
At this rate, we may be celebrating the painting's centenary before there is a court ruling on the status of the artwork or a functioning dispute resolution panel in the US, while we whimper about the lack of justice for Nazi victims and their heirs.
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