Top court allows suit against Austria to recover art

By: MARILYN H. KARFELD Staff Reporter

Thea Klestadt, a 91-year-old Beachwood resident, art collector and niece of
an influential, pre-World War II German Jewish art dealer, has some
misgivings about this week's Supreme Court decision allowing a California
woman to sue in a U.S. court over Nazi-looted art.
The justices ruled 6-3 that Maria V. Altmann, 88, can sue Austria and its
national gallery in Los Angeles federal court over six paintings worth more
than $100 million. While the justices did not rule on the merits of
Altmann's case, only her right to sue a foreign government, the decision may
pave the way for Americans to sue other sovereign states over stolen
property and art as well as other war crimes dating back to the Holocaust
era.

Klestadt is "not so sure the ruling will make much of a difference" to those
trying to retrieve Nazi-looted art. She knows firsthand the difficulty of
proving a claim to a work of art with gaps in its provenance or ownership
history during the Holocaust era.
Her uncle, art dealer Alfred Flechtheim, once owned an important Cubist
painting by Fernand Leger that now hangs in the Cleveland Museum of Art. The
museum bought the painting in 1981 and has listed it on its Web site as one
of several hundred with unknown provenance from 1933 to 1945.
A 1929 black-and-white photo in a book on Berlin apartments clearly shows
the Leger painting, "The Aviator," hanging on the wall of Flechtheim's
study. In 1941, the painting turned up in the hands of a Swiss collector.
The question is, how did it get there?
Despite the Supreme Court's decision, the modest and soft-spoken Klestadt
says having to go to the enormous expense and effort of filing a lawsuit in
federal court "is a little too much of a process."
The white-haired nonagenarian, whose apartment overflows with art, believes
some paintings that passed through her uncle's hands were confiscated by the
Nazis and somehow ended up on the walls of museums in the U.S. and abroad.
While she thinks the Leger properly belongs on the wall at the CMA, it's
partly because she has no proof of a claim to the work. Disappointed that
her fascinating uncle is little known in America, she's mainly interested in
raising his profile in art history.
Altmann's story bears some similarity to Klestadt's. An Austrian refugee who
arrived in California in 1942, she is the niece and heir of an Austrian
Jewish art collector. In 1938, the Nazis confiscated six paintings by
Gustave Klimt that belonged to Altmann's uncle, Ferdinand Bloch-Bauer. Two
of the paintings are portraits of her aunt (Ferdinand's wife), Adele
Bloch-Bauer.
Austria has fought the return of the paintings, now hanging in its national
gallery, because they argue that sovereign states are immune to lawsuits
filed in American courts. Furthermore, they claim that the Bloch-Bauers
intended to bequeath the paintings to the Austrian national gallery.
A majority of the Supreme Court justices agreed with Altmann's contention
that the Foreign Sovereign Immunities Act of 1976 allows her to sue over
conduct that predated the passage of the law.
The Supreme Court's decision was a defeat for the Bush administration, which
argued that the dispute over the paintings should be handled through
diplomacy, not litigation. Writing for the majority, Justice John Paul
Stevens said the decision was a narrow one and that Austria could still
defend itself in federal court on diplomatic grounds.
The court decision will likely have major international ramifications,
Michael Bazyler of Whittier Law School in California told JTA. He analyzed
the Altmann case in his book Holocaust Justice: the Battle for Restitution
in American Courts.
Most immediately, the ruling could impact Holocaust-era cases pending in
U.S. courts against the French and Polish governments, which have claimed
immunity, Bazyler said.
Germany may also be liable to new property claims. Other beneficiaries could
be Korean women who were forced into being sex slaves for Japanese soldiers
in World War II.
But Eli Rosenbaum, director of the Justice Department's Nazi-hunting unit,
whose office has helped investigate looted artwork, says it's hard to say if
the Altmann decision will lead to numerous new suits.
"Unless the art is worth at least several hundred thousand dollars, it's not
worth suing in this country," Rosenbaum says. "The legal fees will be over
$100,000. It also takes a long time, which aging Holocaust survivors don't
have."
Shaker Heights native Miriam Kleiman, a historical researcher at the
National Archives in Washington, D.C., who formerly worked on the Swiss
banks and slave labor cases, says the burden of proof still rests on the
claimant seeking to recover his stolen artwork, not on the museums.
"There's been a lot of attention, but not much art has been returned," she
says.
Museums have done a lot of provenance research into their own collections of
European art and have posted some of their findings on the Internet, she
points out. Unfortunately, there isn't a central registry for the artworks
with murky provenance, and museums have disagreed over the validity of the
various registries.
Often, Kleiman says, they've been more concerned about their liability,
rather than with compensating those who have lost family treasures.
After World War II, the U.S. military government in Germany inventoried and
categorized the stolen art, Kleiman says. The information, generally written
on now faded, small index cards, is hard to read. The National Archives has
begun transferring to microfilm all of the documentation it has on the
looted art which should make the process easier.
The archives hopes to make this information available on the Internet so
that everyone can easily access it.
- With JTA reports.