ASK THE ART LAWYER. Congress Does Sometimes Act! … Will Our Broken Congress Do More? The Holocaust Expropriated Art Recovery Act (HEAR).
By Octavio Robles, AIA, Esq.
Members of opposite extremes in our often referred to, “do-nothing or broken-Congress” have actually put their partisan differences aside and have collaborated on a long due piece of legislation. Republican Senator Ted Cruz and Democratic Senator Chuck Schumer have co-sponsored the “Holocaust Expropriated Art Recovery Act” or the HEAR Act. It is evident that they do have at least one thing in common; Disdain for Nazis.
WHY THE PROPOSED HEAR ACT?
Congress bases the need for the HEAR Act on a number of findings. Estimates on the Nazis’ misappropriation or outright confiscation of art from Jews and other ethnic minorities during their reign in Europe runs in the hundreds of thousands. Congress describes it as the “greatest displacement of art in human history.” An estimated 20 percent of European Art was stolen or otherwise misappropriated by the Nazis during World War II. By some estimates, perhaps as many as 300,000 pieces of art are still missing. The Commission for Art Recovery, the organization that has lead the effort to find and recover stolen art estimates that about $160 million in art has been recovered so far. After World War II, The United States and a group of other allied nations tried to return stolen artworks to their respective countries of origin. However, success was limited and many works of art were never returned to their rightful owners. Much of the missing art has been found in the United States. Again in 1998, the United States participated in a conference held in Washington D.C. with 43 other nations in order to revive the effort of reuniting the found art with their owners. It was referred to as the Washington Conference and it produced a series of principles on Nazi expropriated art. Among the principles set forth was the resolution that “Steps should be taken expeditiously to achieve a just and fair solution” to claims involving such expropriated art works that have not been returned “if their owners can be identified.”
Also in 1998, Congress enacted the “Holocaust Victims Redress Act.” This Act expressed the Congress’ determination that “all governments should undertake good faith efforts to facilitate the return of private and public property, such as works of art, to their rightful owners in cases where assets were confiscated from the claimant during the period of Nazi rule and there is reasonable proof that the claimant is the rightful owner.” In 2009, the United States again took part in a similar conference; The Holocaust Era Assets Conference in Prague where 45 other countries participated. The result of this Conference was the issuance of the Terezin Declaration. This Declaration reaffirmed the 1998 Washington Conference Principles on Nazi confiscated art. It also urged all participants to “ensure that their legal systems or alternative processes, while taking into account the different legal tradition, facilitate just and fair solutions with regard to Nazi confiscated and looted art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by the parties.” The Declaration also urged the use of alternative dispute resolution, like mediation and arbitration, where appropriate.
Congress also found that many victims of Nazi persecution and their heirs have taken legal action in the United States to recover Nazi confiscated art. Many such claims have faced significant procedural obstacles in part due to State statutes of limitations, which normally bar claims within a predetermined number of years from “either the date of the loss or the date that the claim should have been discovered.” In many cases, the statutory period prohibits the claim back to even before World War II ended. Congress went on to determine that such typical statutes of limitations, although applicable to many other circumstances, were “especially burdensome” to World War II victims and their heirs because of the “horrific circumstances” of the war. In most cases, claimants must piece together “fragments of historical records ravager by persecution, war and genocide” and the process cannot typically be done within the time limitations of existing law.
The need for federal legislation is rooted on the fact that States are constitutionally prohibited from extending their statutes of limitation on a case-by-case basis and furthermore because issues of foreign affairs and war related disputes fall exclusively within the jurisdiction of the Federal Government. Such disputes and claims therefore should be adjudicated in accordance with the United States policy expressed in the Washington Conference Principles on Nazi Confiscated Art, The Holocaust Victims Redress Act and the Terezin Declaration.
A NEW PROPOSED FEDERAL STATUTE OF LIMITATION
In order to insure that claims to artwork and other properties confiscated or misappropriated by the Nazis are not unfairly barred by existing statutes of limitations within States while conferring jurisdiction of such claims to the Federal Government, the HEAR Act provides a six-year statute of limitation after the discovery by the claimant or his agent of “the identity and location of the art work or other property, and a possessory interest of the claimant in the art work or other property.” Any preexisting claims are automatically deemed to have been “actually discovered” on the date of enactment of the Act. The Act ceases to exist on December 31, 2026 so any claim based on the Act must be filed by that date. The net effect of the Act is to enable claims to be filed within six years of the claimant becoming aware of the claim or the discovery of facts that would justify the claim, even if the claim was dismissed previously due to a previous statute of limitation bar, however, as long as it is filed before January 1, 2027.
IF IT PASSES WILL IT HELP?
In practical terms, the Act will have most relevance where the possessor of the claimed art is accessible. It is likely that in cases where the possessor is a national museum outside the United States, the museum will be entitled to sovereign immunity unless there is an applicable exception and most likely, it will avail itself of the immunity even if the country in question was a member of the Holocaust Era Assets Conference Terezin Declaration or the Washington Conference.
THE ACT GETS A CELEBRITY ENDORSEMENT
Oscar winning actress Helen Mirren, who starred in the 2015 movie “Woman in Gold” playing the part of Maria Altmann, who took a case to recover paintings originally owned by her family and confiscated by the Nazis all the way to the U.S. Supreme Court, testified before Congress in favor of the bill.
WHAT ABOUT CONGRESS DOING MORE?
Given the bipartisan enthusiasm in Congress over this bill, will Congress go further? There are unquestionably many other countries that during a dark period, the group in power confiscated art and other culturally significant property from persecuted and terrorized groups. Much of that confiscated art and property has also found its way to the United States as well as other countries. Similarly, to the Nazi era in Germany, many such other oppressive regimes acquired power decades ago. Some are still in power. I can think of one very near to our shores. Will our broken Congress and its partisan abyss be again enthusiastically bridged when the same issue revolves around some of these other repressive regimes?
Octavio Robles, AIA, Esq. is a legal contributor to ARTDISTRICTS and a member of the Florida Bar and federal Southern District of Florida Bar. He is a Florida Supreme Court Certified Mediator and Approved Arbitrator; a member of the Construction Committee of the Real Property, Probate and Trust Law Section, the Art and Entertainment, and the Alternative Dispute Resolution Law sections of the Florida Bar; and a member of the American Institute of Architects, Art Deco Society of Miami and Copyright Society of the USA. He holds licenses as a registered architect, state-certified general contractor and real-estate broker in Florida and is a LEED-accredited professional. He received his Juris Doctor degree from the University of Miami School of Law in 1990. He holds master’s degrees in architecture and construction management and a bachelor’s degree in design, all from the University of Florida. His practice is limited to art, design, architecture, construction and real-estate law.