12 November 2016

Revisiting the Martha Nathan loss of a Gauguin painting

by Marc Masurovsky

Martha Nathan was the wife of a prominent German Jewish collector, Hugo Nathan. He died in 1922. After inheriting his wealth and his art collection, Martha Nathan continued to live in Germany. She eventually fled to France in 1937 settling down in Paris, much like Hugo Perls and countless other German Jews had done before her. Meanwhile, she had shipped for safekeeping some of the works that she owned to Basel, Switzerland. Mrs. Nathan sold one of those paintings, “Street scene in Tahiti,” by Paul Gauguin, to three Jewish art dealers, Justin Thannhauser, Alexander Ball and Georges Wildenstein. These three dealers were later plundered when the Nazis invaded France in May 1940, one of the ironies of Nazi-sponsored cultural plunder.

'Street scene in Tahiti, by Paul Gauguin

The Toledo Museum of Art (TMA) acquired the Gauguin painting in May 1939 where it remains to this day.

When the Nathan heirs asked for the restitution of the painting in 2004, the TMA demurred and fought back. The TMA’s lawyer went on the offensive, accusing the Nathan family of not having pursued a claim for restitution of the Gauguin painting after 1945 and maintained that she had not been forced to sell it under Nazi pressure. In 2006. the TMA “quieted” the Nathan claim in an unusually aggressive blowback strategy. In a move that would have made Clausewitz proud, the best defense being an offense, the TMA had filed its own lawsuit against the Nathan heirs, contending it held legitimate title to the painting. The Detroit Institute of Art joined the lawsuit, arguing that a van Gogh painting, which also had belonged to Martha Nathan, was its legitimate property.

In hindsight, the Nathan claim was the first claim to reach an American museum for the restitution of a “flight asset.” In the years following the Washington Conference of December 1998, no one had developed a clear notion of what “flight assets” were and especially whether or not they amounted to a restitutable loss as a result of Nazi persecution. Neither historians of the period nor Jewish officials involved in restitution matters nor, for that matter, politicians and civil servants had ever considered the possibility that “flight assets” could occupy the same space as “forced sales” or “looted assets”. The Washington Principles did not address them, a key element of the defense put forth by the Toledo Museum of Art to oppose restitution.

In the eyes of the TMA’s lawyers, the Gauguin painting did not smack of persecution, there was no evidence of force exerted upon Martha Nathan; in their view, she had not lost control of the painting at the time of its sale. Moreover, they restated the fact that the sale had occurred outside of Germany, involved Jewish art dealers, had not been instigated by the Nazi regime, nor did the Nazis profit from the sale. At stake in the Nathan complaint against the Toledo Museum of Art was Martha Nathan’s status as Jewish victim of Nazi persecution, inside and outside the Third Reich. In other words, as long as Martha Nathan had property and other interests left in Nazi Germany, she remained a target of Nazi persecution, regardless of where she lived.

Was the Gauguin painting a “flight asset”?

“Flight assets” were fungible assets whose short-term realization helped the assets’ owners to survive in their chosen country of exile after fleeing from Nazi Germany.

Our litmus test for validating the “flight asset” label involves asking the following questions:

Would Martha Nathan have sold the painting in the first place had she not been forced to flee first to France and then to Switzerland where she died in 1958?

Would she have fled to France or Switzerland, had there been no immediate threat to her person?

Did she need to sell the Gauguin painting in order to survive in exile?

The Toledo Museum of Art contended that Martha Nathan had obtained a fair price for her Gauguin painting at the time of the sale, consistent with what the market could bear in Western Europe in the late 1930s.

Once again, the price that a Jewish victim of Nazi persecution obtains for a work of art is of no consequence and should not be relevant to determining duress and persecution. It is the circumstance under which the sale takes place which matters the most and the reasons driving it.

It is disheartening to see how a Jewish victim of Nazi persecution is not allowed to obtain fair price for an asset and claim duress. In the minds of those who currently possess such works, fair price is a telltale sign of being free and unencumbered by any form of persecution or harassment. This mischaracterization of “duress” and “forced sale” continues to poison the historical narrative of Jewish plight in the face of Nazi persecution, even in exile, an issue that no one has bothered to clear up definitively through scholarly writing and forceful policy statements.

The acceptable standard trope for a Jewish victim is for her to live under an unremitting regime of terror and intimidation. There is a general reluctance to accept that persecution can be “experienced” outside the borders of the territory in which it originated. This contention has all the hallmarks of a double standard since it is widely accepted nowadays that victims of persecution, torture, rape and other forms of human debasement, continue to live in fear and display behavior akin to being persecuted even in exile, far away from the scene of the crime. It is called “trauma.”

The Toledo Museum of Art refused to acknowledge that Martha Nathan’s decisions to sell works of art during the Nazi years were guided and influenced by Nazi racial policies and their impact on her corporate presence in Nazi Germany (real estate, and other assets). US courts and museum lawyers have had wide license to pontificate as to when one is persecuted and one is not, especially if the victim’s property came to them as a direct result of an act of Nazi persecution. Why should lawyers and judges take on the charge of (re)writing certain aspects of Holocaust history?

Plaintiffs’ lawyers bear a huge responsibility when they propound facile arguments that would lead us to believe that an item was plundered when, in fact, it might not have been thus allowing the current possessors’ lawyers to tear asunder historical facts tied to cultural plunder. Historians have a professional and ethical duty to set the record straight on these matters.