Adam, Eve, and George

The Norton Simon Museum Adam and Eve restitution case draws two reactions. For some, it’s simple: Hermann Goering stole the paintings—what part of “Nazi loot” don’t you understand? For others it’s complicated. It hinges on the puzzling claims of George Stroganoff-Scherbatoff, a Russian prince turned American intelligence officer.

I posted on the Stroganoff saga last month. In brief George Stroganoff-Scherbatoff claimed the Bolsheviks stole his family’s art, including Lucas Cranach‘s Adam and Eve, in the Russian revolution. That was before the Nazis stole the same paintings from the stock of Jewish art dealer Jacques Goudstikker. After the war, in 1966, the Dutch government transferred the paintings to Stroganoff-Scherbatoff. He sold them to Norton Simon, and they now hang in his Pasadena Museum. Goudstikker’s heir, Maria von Saher, is now suing the museum for their return.

Still with me?

The Stroganoffs, richest family of Czarist Russia, lived in a Saint Petersburg palace (now a museum, seen in the recent photo above). At one point or another, the Stroganoff collection included works by Duccio (the Madonna and Child now in the Metropolitan Museum), Botticelli, van Dyck, Claude, Poussin, and Watteau, Boucher, and Robert.

The Soviet Union sold confiscated Stroganoff works in a 1931 Berlin auction titled “The Stroganoff Collection.” Princess Stroganoff-Scherbatoff—George’s mother—wrote a letter of protest to the New York Herald Tribune (May 13, 1931). “The collection is entirely my property,” she wrote. The Soviet republic has taken possession of this collection in a way that sets at defiance every principle of international law.”

More informative for the Norton Simon case is an essay written by James Schmidt for the auction. A copy of the essay, along with an English translation, was submitted to U.S. District Court in 2007. The main points have been summarized in the press, but the full document supplies important context.

Let me first say I don’t know who James Schmidt was, and a quick Googling was unavailing. In the translated essay, he writes as someone knowledgeable about the Stroganoff collection and its display. Schmidt explores the Stroganoff collection’s history; complains about the lighting (the windows produced “irritating reflections” making it “extremely difficult to observe the paintings, let alone examine them”); admits the inadequacy of the collection’s several catalogs, limited by the “impossible technical conditions” for photography.

“Pictures from other sources joined the Stroganoff paintings at this auction,” he writes. They include paintings that had formerly been in the Hermitage, plus Cranach’s Adam and Eve—which Schmidt says were discovered in a Kiev church.

The Cranach paintings rate a single sentence. But when taken in context, it seems evident that Schmidt would have know whether they were Stroganoff works, and he says, very clearly, that they weren’t.

Was George Stroganoff-Scherbatoff aware of this? Well, he had a job in military intelligence. That presumably means he was good at locating hard-to-find documents, translating them, and putting two and two together. In fact Stroganoff-Scherbatoff served as translator at the Yalta, Potsdam, and Big Four conferences.

In 1976 Stroganoff-Scherbatoff sued collector Henry Weldon over a van Dyck Portrait of Antoine Triest (right) that he said had been part of his family’s collection and sold in the same 1931 auction. Weldon contended it had actually come from the Hermitage. The case was dismissed.

It sounds like Stroganoff-Scherbatoff either didn’t know what was in his family’s collection… or else that he was in the habit of filing suits for paintings the family had never owned. Admittedly, that would be peculiar. There was no shortage of authentic Stroganoff artworks to sue over.

In a 2014 opinion on the Norton Simon case, Senior Circuit Judge D.W. Nelson supplied further details on the Cranach pictures’ early provenance. Nelson writes, “For the 400 years following their creation in 1530, the panels hung in the Church of the Holy Trinity in Kiev, Ukraine. In 1927 Soviet authorities sent the panels to a state-owned museum at a monastery and in 1927 transferred them to the Art Museum at the Ukrainian Academy of Science in Kiev.”

These details aren’t in Schmidt’s article. I assume they reflect further research by von Maher’s legal team. It would be notable, even surprising, that Ukrainians were collecting high-end German Renaissance art way back in the feudal 16th century. (The NSM website says that Adam and Eve “were probably painted for a member of the court of the Elector [of Saxony, today’s Germany] and intended to hang in domestic surroundings.”)

Judge Nelson accepted these details as accurate. They further remove the paintings from the St. Petersburg Stroganoffs, who supported many churches but seem not to have had any particular connection to Kiev.

If indeed the Stroganoffs never owned Adam and Eve, it would greatly limit the scope of the Norton Simon Museum’s defense. The museum would likely have to predicate its ownership on the theory the 1966 Dutch transfer of the paintings to Stroganoff-Scherbatoff constituted a sovereign state’s act of restitution that the U.S. cannot contest. The details of that transfer remain sketchy. Though it came after years of Stroganoff-Scherbatoff’s petitioning, it’s said that he had to pay money and received three paintings—Adam, Eve, and another painting that doesn’t seem to be identified in court proceedings. Von Maher contends this transfer was a sale, not a restitution. In any event, a “restitution” based on mistaken information would be a narrowly legalistic defense.

It could be argued that the Soviets must have stolen the paintings, if not from the Stroganoffs, from somebody—maybe from the Church of the Holy Trinity. Follow that thought, and conceivably the “real” owner has yet to step up. But such a hypothetical claimant would be unlikely to prevail in U.S. courts, given the precedents for denying Soviet restitution cases.

Under the Act of the State doctrine, the U.S. recognizes the internal decisions of other sovereign states. The Stroganoff-Scherbatoff v. Weldon decision cites previous cases denying restitution for property seized by the Soviet Union and Castro’s Cuba.

Why then do courts allow restitutions of works confiscated by the Nazis? The judge in the Weldon case cited Menzel v. List. It was there ruled that property was taken by “an organ of the Nazi Party, not a sovereign state,” rendering the Act of State doctrine inapplicable.

This may seem legalistic hair-splitting itself. The Nazi party was the law under Hitler. Nevertheless, the Soviets passed laws confiscating the property of wealthy landowners, such as the Stroganoffs, who fled for their lives. The Nazis apparently didn’t have comparable laws on the books. In the case of Jacques Goudstikker, the Nazis went through the pretense of a sale, at nominal prices, transferring the best of his gallery stock to Hermann Goering. In this understanding, accepted by U.S. courts, Nazi looters were criminals because they violated the law—of the Third Reich.

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