Last week the Supreme Court refused to review a lower-court ruling on Marei von Saher’s long-running restitution case against the Norton Simon Museum. At issue is the fate of Lucas Cranach the Elder’s paintings of Adam and Eve, looted by the Nazis from von Saher’s father-in-law, Jacques Goudstikker, in 1940 and in the Norton Simon collection since 1971. After years of procedural foot-dragging, the SCOTUS action opens the way for the case to be decided on its merits.
That means you can expect to hear a lot more about George Stroganoff-Scherbatoff. In 1931 the Soviet government auctioned the Cranch paintings in Berlin, the catalog identifying them as part of the Stroganoff collection. Jewish Dutch dealer Jacques Goudstikker bought them, entering them as Nos. 2721 and 2722 in his famous notebook.
Goudstikker died accidentally in 1940 while fleeing the Nazis. His inventory was subject to forced sale, and the Cranach paintings went to Hermann Goering’s country estate. It was there that U.S. Monuments Men recovered them after the war. Adam and Eve were delivered to the Dutch government for return to their proper owner. The Dutch retained the paintings for nearly two decades. Then in 1966 the Netherlands returned—or sold?—the paintings to George Stroganoff-Scherbatoff, who claimed to be their rightful owner.
Stroganoff-Scherbatoff was a Navy man, a military translator, a tennis player, a Palm Beach socialite, and a filer of lawsuits. Like von Saher, he lived in Connecticut and spent years fighting for the restitution of his once-wealthy family’s art collection. He was a Stroganoff on his mother’s side, and the Bolsheviks had confiscated his family’s famous art collection. (Russian proverb: “Richer than a Stroganoff you’ll never be.”)
In 1970-71 Stroganoff-Scherbatoff sold Adam and Eve to Norton Simon for $800,000. For many years the museum’s gallery label mentioned the paintings’ colorful history, including their stint in Goering’s larcenous collection. It was, as I read it, a point of pride that a work seized by the Nazis had come into the collection of a Jewish-American businessman to be shared with the public.
That idyll ended around 2000, when Goudstikker heir Marei von Saher learned that the Cranach paintings were in the Simon museum. She demanded their return, leading to years of fruitless negotiations and legal maneuvering.
Were it not for Stroganoff-Scherbatoff claim, the case probably would have been decided in von Saher’s favor long ago. The Dutch government returned 200+ paintings to the Goudstikker heirs in 2006, and the Getty Museum returned a Goudstikker-owned Pieter Molijn to von Saher in 2011. But the fact that there were two claimants to the Cranach paintings, and they may have already been restituted once, makes for a legal catch-22.
One puzzle is this: Is Nazi Germany an unique historical case, as far as restitutions go, or can its example be generalized to any more-or-less evil regime? Historians estimate that the Stalinist Soviet Union was responsible for anywhere from 20 to 60 million deaths of political enemies. Those numbers out-Hitler Hitler. Though the Bolshevik revolution was chaotic and bloody, it was nominally guided by Marxist idealism. We are left to ponder whether Soviet confiscations of art collections merit higher legal standing than the Nazis’.
U.S. courts have declined to second-guess the Soviet proletariat’s revolution. For instance, in 1976 Stroganoff-Scherbatoff sued Charles and Jayne Wrightsman and the Metropolitan Museum over Houdon’s bust of Denis Diderot. This had been in the Stroganoff family’s collection and confiscated. The judge ruled that the Act of State Doctrine precluded restitution. The doctrine says that U.S. courts must defer to the official policies of foreign governments.
That’s ironic because the same doctrine figures in the NSM case, though possibly in the opposite way. If the Dutch government truly decided that Stroganoff-Scherbatoff was the proper owner (something that von Saher’s legal team disputes), then the U.S. would presumably have to accept it, whether or not a U.S. court would have made the same call.
The law pretends that ownership is a black-and-white matter. In this case there are ambiguities and uncertainties aplenty. Von Saher contests every part of Stroganoff-Scherbatoff’s story, including the claim that his family owned Adam and Eve. Her petition says that the paintings came from the Church of the Holy Trinity in Kiev. There seems to be little evidence for (or against) Stroganoff-Scherbatoff’s story beyond the 1931 action catalog. I suspect that, if either side had much more to bolster its case, we would have heard it already.
Museum restitutions risk righting one wrong while creating another. A good-faith institutional buyer may forfeit art worth tens of millions of dollars, and the public may be deprived of access to the art.
There are few notable exceptions. One is the Kimbell Art Museum (Fort Worth) and its J.M.W. Turner painting Glaucus and Scylla (below). The Kimbell restituted it to Holocaust-era heirs in 2006. It was auctioned the following year—and bought by the Kimbell, where it still hangs.
The Getty Museum ceded its Molijn to von Saher, but it also acquired its Claude Lorrain landscape from her, after it was restituted by the Dutch government. (The Claude painting, naturally, is The Rape of Europa…)
It’s no coincidence that these happy endings concern the Getty and Kimbell. They are among the few American museums with the resources to buy back Old Masters at today’s market value.
Perhaps successful claimants should consider making it a little easier for museums that acquired in good faith to retain restituted works. After all, in the vast majority of high-profile restitution cases, the family has no interest in keeping the art. After 70 years, there are often many heirs, and the value of one major painting may easily exceed the net worth of an average mortal. That makes it unlikely that anyone is going to hang a restituted Hals over the fireplace. Most successful claimants break out the champagne, then call the auction house.
Owners could voluntarily give the museum a right of first refusal, at a price set by an independent appraiser. Or, if the owner is set on an auction as the only index of market value, they could delay the auction a while, to give the museum time to raise funds for a bid.
The Norton Simon Museum has no acquisition funds to speak of, nor much of a fund-raising department. But if it someday needed to buy back Adam and Eve it’s not inconceivable that a few wealthy friends of the museum could make it happen. This is roughly what Britain tries to do every time a foreign buyer tries to export a manor house masterpiece. As the British example shows, a museum without much cash can sometimes rally support. Should the museum succeed, it would be a win-win.