24 August 2015

The Struggle Continues

by Ori Z. Soltes

Which struggle? 

Not just that on behalf of claimants whose cultural property was seized by the Nazis more than half a century ago and resides in various museums and private collections. Not just that on behalf of the Hopi and Acoma Native Americans and other indigenous peoples whose communal spiritual property--and not merely individual or communal cultural property is being sold on the auction block as if it is merely a series of desirable baubles. Not just the struggle to get museums to educate themselves and their audiences about the provenance aspects of artworks and their histories. But the struggle to get certain museums, auction houses--and nation-states--to consider seriously the importance of moral and not just legal issues. The morality/ethics vs law distinction is fundamental to the distinction between law and justice and to principles that institutions like museums and auction houses consistently lay claim to as essential to what they are: the preservers of civilization (yes, this blog may be seen as a continuation of several previous blogs written by Marc Masurovsky or me). 

Three different bits of news underscore this nicely. A California judge ruled that the Thyssen-Bornemisza Museum in Madrid, that holds within its collections a valuable 1897 Pissarro painting seized in 1939 by the Nazis from Lilly Cassirer, (in exchange for a few hundred dollars and a visa out of the country), need not return it to her great-children (their father, Paul, initiated the attempt for restitution when he found where the painting was, back in 2000) on legal grounds. Purely legal grounds: that the laws of Spain, in whose jurisdiction the issue must remain (although the painting moved thorough the American art world for 25 years during its post-war travels) do not mandate that the current owner need return it, since that owner, the museum, purchased the painting (from a Swiss-German baron) unaware of its provenance and thus that it was stolen property.

The judge did go out of his way to express hope that the museum would not allow the matter to end here, but would seek some extra-legal outcome, for moral reasons. So it is clear not only that laws are not always laws--had the judge pushed the case to be adjudicated within an American jurisdiction, the fact that the painting had been effectively stolen from Cassirer-- regardless of how many owners since that seizure by the Nazis had taken possession of it--may well have meant that the current owner doesn't own it. But in no case does anyone dispute the moral fact of the Cassirer ownership and entitlement. So: law wins, justice loses, morality loses. Civilization? a draw, I suppose. We need laws in order to be civilized, but when they permit immoral, unjust outcomes, then are they performing their intended job?

French law, like Spanish law, does not concern itself with the individual from whom an object was illicitly taken in the matter of property possession, just as long as the current owner paid for it--the presumption is that such a purchase was done in good faith and therefore the current possessor should not be penalized for not having bothered to inquire into the provenance of the property. And isn't it a heck of a coincidence that just a few days before the Cassirer verdict the French raised such a ruckus regarding the potential auctioning off of some royal historical artifacts: a 17th- century portrait of King Louis XIII, a portrait of the Duchess of Orleans, and an accounts book from the Chateau d'Amboise, a 15th-century royal residence in the Loire Valley? 
Fleur Pellerin, French Culture Minister
To be precise, the French government intervened to impose an export ban on these three items that descendants of France's former royal family (the House of Orleans) consigned to Sotheby's Paris offices. This was made possible--the State trumps the individual's rights with regard to his/her property--because France's cultural minister, Fleur Pellerin, declared the items as part of France's patrimony, its "national treasure." That designation gives the government legal ground for preventing these objects from going under the hammer and from leaving the country. 
Louis XIII in all his glory
This, of course, as readers of this blog will already now, came fast on the heels of the failure of the Conseil des Ventes--the government office that is tasked with overseeing all auctions and auction house activity in France--refused for the fourth time in barely a year to halt the auction of a number of objects sacred to the Hopi (Arizona) and Acoma (New Mexico) Native American tribes. These are all objects that, by definition can only have ended up in Paris auction houses, such as EVE and Drouot, by having been removed illicitly from these tribes and by being smuggled out of the United States--where the laws against dealing in the sacred and cultural property of Native Americans have become strict--and into France, which does not recognize the American laws as such.

Indeed the President of the Conseil de Ventes, each of these times when she has been confronted with a plea to remove sacred items from the auction block, has failed to do so on purely legal grounds: that the Hopi and Acoma are not entities entitled to legal standing within her jurisdiction (although they are, in the United states) and/or that those who represent the Hopi and the Acoma lack that standing for one technical reason or another. In other words, the moral issue is not one that even crossed her countenance; her ruling was shaped in pure legal terms.

So the sacred objects of Native Americans, essential elements of their identity, count for nothing in the French courts, although a historical account book--which is French, after all!--does. As Marc Masurovsky observed, in comparing the two French situations: "It would appear that sacred artifacts belonging to indigenous tribes the world over don't weigh much against royal artifacts." And while Evelio Acevido Carrero, managing director of the foundation that maintains the Thyssen-Bornemisza Museum noted gleefully how "very satisfying" it is to have an American court recognize the ownership rights of a Spanish museum--noted without a scintilla of irony--there is some other kind of irony in the tone of dismissal used by the French CVV toward both American law and American artifacts.

What all three cases have in common (among other things) is the question of where justice and morality fit into these legal questions. Los Angeles Judge John F. Walter invoked morality at the end of his decision, expressing hope that the museum would "do the right thing," even as he felt obliged to ignore "the right thing" in his decision, in the interests of the law; the French court and auction houses and the Spanish museum have both used the law in order to ignore justice and morality--have thus far made it clear that law is the armor in which they shall wrap themselves to protect themselves from justice and morality.

And then--lest we forget!--the Fred Jones, Jr, Museum, at the University of Oklahoma, continues to hang on desperately to “The Shepherdess” by Camille Pissarro that doesn't legally or morally belong to it, against the claim of Leone Meyer, a French woman, from whose father the Nazis stole it--thanks to legal technicalities having to do with the jurisdiction in which the case might be decided--in spite of the moral outrage of nearly everyone in the State of Oklahoma.

It would be nice if law, justice and morality could coincide in these cases that are linked by the lack of that coincidence. It's not that justice is blind, it's that too often many legal practitioners are blind to justice. So the struggle for moral outcomes goes on in the darkness.