Adam and Eve

Two life-size panels of about 1530, bought by the Amsterdam dealer Jacques Goudstikker from the Soviet Union at a Berlin auction in 1931, taken from his firm in a forced sale to Hermann Goering after Goudstikker died fleeing the invasion, recovered by the Allies, handed to the Dutch government in 1946, sold by the Dutch government in 1966 to a man who claimed his own family had owned them, and sold on by him to Norton Simon in 1971 for eight hundred thousand dollars.

In 2006 the Netherlands returned 202 works from the same forced sale to Goudstikker's heir. It did not return these, because it no longer had them. Twelve years of litigation in the American courts ended on 30 July 2018 with the Ninth Circuit holding that to give them back it would have to declare three official acts of the Dutch government invalid, which the act of state doctrine forbids. The Supreme Court declined the case in 2019. The museum keeps the panels. The forced sale is not in dispute and never was.

A claim that failed on none of the facts

Almost every element of this story that would normally be fought over is agreed. Jacques Goudstikker was a Jewish art dealer in Amsterdam. He fled the invasion in May 1940 and died on the ship. Hermann Goering and his associate Alois Miedl took over his firm through a series of involuntary written agreements with a remaining employee. The forced nature of those transactions is, in the Ninth Circuit's words, uncontested by the parties. The two Cranachs were in the Goering half of it.

The claim still failed, and it failed on a doctrine of American law that has nothing to do with art. The act of state doctrine requires United States courts to treat the official acts of foreign sovereigns within their own territory as valid. To hand these panels to Goudstikker's heir, the Ninth Circuit would have had to declare three Dutch government acts legally inoperative: the 1966 conveyance to Stroganoff, a 1999 Dutch appellate decision refusing to restore her rights, and the Dutch state's later statement that her claim to these two pictures had been settled.

It refused. The judgment does not say the paintings were lawfully taken. It says an American court cannot unpick what the Netherlands did with them afterwards.

That is the most useful thing in this file for anyone assessing a claim: the strength of the wartime facts is not what decides these cases. What decides them is the sequence of official acts that came after.

What they are

Two panels, each 190.5 by 69.9 centimetres, painted about 1530 and hung as a pair. Nudes at full length, each figure alone on its own panel against a dark ground, with the tree and the serpent divided between them. Cranach painted the subject repeatedly across three decades and his workshop repeated it further, which is why the corpus is a version-safety minefield and why aggregated databases confuse these two with panels by Lucas Cranach the Younger dated 1549.

The museum carries them under two accession numbers, M.1971.1.P for Adam and M.1991.1.P for Eve. The pair was bought in a single transaction in 1971, so the second number is not an acquisition date in the ordinary sense, and this record does not explain it.

Adam and Eve full length and life size, made for a Lutheran market in Saxony around 1530, are objects with a specific doctrinal job. Cranach was the court painter at Wittenberg, a personal friend of Martin Luther and godfather to one of his children, and the workshop that produced these panels was the principal image factory of the Reformation. A pair like this is not an excuse for two nudes. It is the Fall, the moment the law becomes necessary, painted in the town where the argument about law and grace was being had.

Where they came from before Goudstikker, and why nobody knows

In 1931 Goudstikker bought the panels from the Soviet Union at an auction in Berlin billed as the Stroganoff Collection. The Soviet state was selling nationalised property abroad for hard currency through the 1930s, and a good deal of what it sold under a great family's name had never belonged to that family.

Whether these panels had is the question that later mattered, and it has no clean answer. The district court found the Stroganoff family never owned them. The museum contested that, and the Ninth Circuit described the record evidence as muddied and declined to decide it, because for its purposes it was enough that the ownership was possible enough to make George Stroganoff-Sherbatoff's claim to the Dutch government in the 1960s a colourable one.

So the pre-1931 provenance is genuinely unresolved, and an unresolved question about 1917 turned out to be load-bearing for a case about 1940. That is unusual and it is worth noticing: the second dispossession in the chain, by the Soviet state, is the one that supplied the mechanism for the objects to leave Dutch hands.

Goudstikker

Jacques Goudstikker joined his father's Amsterdam gallery in 1919 and turned it into the most important Dutch dealership in old master paintings between the wars. From 1927 he traded from Herengracht 458 in the Golden Bend. Over 1,200 works were catalogued through his hands, and pictures that passed through his gallery are now in the Metropolitan Museum and the National Gallery in Washington.

He fled in May 1940 with his wife Desi and their child, leaving the gallery and its stock. On 16 May 1940, aboard the SS Bodegraven, he failed to see an open hatch, fell into the hold and broke his neck.

He was carrying a small black notebook listing the paintings in the gallery, the Cranachs among them. Desi kept it. Sixty-six years later it was the document on which 202 restitutions turned. A dealer's pocket inventory, written for his own use, did what no state record could.

The two forced sales

After Goudstikker's death the firm's assets were taken in two transactions, both concluded through a remaining employee.

Alois Miedl, a banker, took the firm itself, its showroom, some of its paintings, and the family's villa and castle, for 550,000 guilders. He then traded on under the Goudstikker name, selling art into Germany on the strength of a dead Jewish dealer's reputation.

Hermann Goering took the other artworks, these two panels among them, for two million guilders, a sum the Ninth Circuit put at over twenty million dollars in current money. Goering's interest in the Amsterdam gallery was not remote: he was photographed leaving the premises at Herengracht 458 in 1941.

Dutch authorities at various times took the position that both transactions were voluntary. That position, in the court's phrase, has long since been dispelled, and by the time of this litigation the forced character of both was uncontested by everyone in the case including the museum.

The Dutch machinery, and the decision not to use it

The Netherlands built its restitution system out of royal decrees issued while the war was still on, and the detail of them decided this case.

Royal Decree A6 of June 1940 nullified agreements with the enemy automatically, and gave a committee power to revive them. In 1947 that committee revived the nullified transactions for property the Allies had already returned to the Netherlands, reasoning that once the property was back, the protective purpose of the nullity had gone.

Royal Decree E100 of 1944 created a Council for Restoration of Rights with exclusive power to annul wartime transactions and order property returned. Its judicial division's decisions were final and had the force of a court judgment. The filing deadline for claimants was 1 July 1951. As a rule, an owner who had received money for property taken by the Nazis had to hand the price back to the state to get the object.

Royal Decree E133 of 1944 expropriated enemy assets outright: property in the Netherlands belonging to an enemy state or national passed automatically to the Dutch state.

Here is what the Goudstikker firm did with that machinery. It filed under E100 for the Miedl transaction, just before the 1951 deadline, and settled with the Dutch government in August 1952. It deliberately did not file for the Goering transaction. Its lawyer Max Meyer advised against it, on the reasoning that recovering the Goering pictures would saddle the business with a large number of works that were hard to sell, revive an art dealership nobody wanted to run and drain its liquid assets. In 1949 Meyer wrote to the Dutch agency holding the Goering works confirming that the firm waived the right to file for restoration of rights on them.

Marei von Saher conceded in later Dutch proceedings that the firm had made a deliberate and well-considered decision not to seek restoration of the Goering goods.

Nothing in that paragraph is a moral judgment on a widow in 1949 negotiating with the state that had just been occupied. It is the record of a commercial decision taken on legal advice, and it is the fact from which everything that followed runs.

1966: the state sells the panels to a claimant

In the 1960s George Stroganoff-Sherbatoff, a United States naval officer of Russian descent, petitioned the Dutch government asserting that the Cranachs were rightfully his because the Soviet state had stolen them from his family. In 1966 the two sides reached what the court called an amicable settlement: Stroganoff bought the panels back from the Netherlands in exchange for dropping his restitution claims.

Read that transaction carefully, because it is the pivot of the case. The Dutch state disposed of two paintings taken from a Jewish dealer in a forced sale by settling a competing claim from a third family about an earlier expropriation in another country. Neither the Goudstikker heirs nor the original loss featured in it. And because it was done as part of the state's own restitution process rather than as a commercial sale, an American court in 2018 held it to be a sovereign act it could not touch.

Through an agent, Stroganoff sold the panels to the Norton Simon Art Foundation and the Norton Simon Museum in 1971 for 800,000 dollars. They have been on public display in Pasadena ever since.

2001 to 2006: the Netherlands changes its mind, and it is too late for these two

In 2001 the Dutch government reassessed a restitution process it described as bureaucratic and moved it from a purely legal approach to what it called a more moral policy approach. It created a new Restitution Committee to advise the State Secretary for Education, Culture and Science on claims to property the state still held.

Von Saher, the only surviving heir of Jacques and Desi Goudstikker, petitioned for over two hundred works from the Goering transaction still in Dutch hands. On 19 December 2005 the committee recommended, in case RC 1.15, the return of 202 of the 267 works claimed: the Goering pictures went back, the Miedl pictures did not, because those had been settled in 1952.

The State Secretary took the view that her claim had already been settled in the 1950s and by a Dutch appellate decision, and returned the Goering paintings anyway. He stated expressly that the decision did not concern the Cranachs.

Her earlier Dutch petition, brought in the 1990s to the Court of Appeals as successor to the Council for Restoration of Rights, had been refused on the ground that the firm had made a conscious and well considered decision to refrain from seeking restoration on the Goering transaction.

So: the Netherlands accepted in 2005 that the Goering transaction was an involuntary loss and returned two hundred and two objects on that basis, and these two panels stayed in California, from the identical transaction, because the Dutch state had sold them to somebody else in 1966. Same seizure, same finding, opposite outcome, decided by nothing but where the objects physically were.

Twelve years in the American courts

In 2007 von Saher sued the museum in the Central District of California in a diversity action for replevin, conversion, statutory damages, quiet title and declaratory relief. She relied on a Californian statute of limitations written for Holocaust-era art claims against museums, with a filing deadline of 31 December 2010.

The district court dismissed. In 2010 the Ninth Circuit affirmed, holding that Californian statute unconstitutional on field preemption grounds because the state was attempting to conduct foreign affairs, while giving leave to amend. The Supreme Court denied certiorari in 2011.

California then amended its general property limitation statute to run six years from actual discovery in cases of unlawful taking against a museum, and made it retroactive. Von Saher amended. The museum moved to dismiss on the ground that her claims conflicted with federal foreign policy; the district court agreed; and in 2014 the Ninth Circuit reversed over a dissent, holding that her claims did not conflict with federal policy because, as pleaded, the Cranachs had never been subject to postwar internal restitution proceedings in the Netherlands. The court declined to give serious weight to an amicus brief from the State Department and the Solicitor General, which it said had gone beyond explaining foreign policy and appeared to make factual findings. The Supreme Court denied the museum's petition in 2015.

Then came the discovery that changed it. On remand the court held over a year of discovery and, as the 2018 panel put it, the record did not bear out the allegations that had survived the motion to dismiss. In 2016 the district court gave summary judgment to the museum on Dutch law, holding that the 1947 revival of the Goering transaction, the automatic expropriation of enemy property under E133 and the absence of any E100 annulment meant the Dutch state owned the panels when it sold them in 1966.

The Ninth Circuit affirmed on 30 July 2018, but expressly not under Dutch law and without any choice-of-law analysis. It affirmed on the act of state doctrine. Judge Wardlaw concurred, writing that the case should never have got past the 2012 dismissal on preemption grounds. Certiorari was denied on 20 May 2019.

What this case is actually authority for

Three things a diligence file should take from it.

A waiver made in 1949 can still be decisive in 2019. The firm's decision not to file under E100 for the Goering pictures, taken on commercial advice about the difficulty of selling old masters and running a gallery, ran through every subsequent decision including the Dutch refusal in the 1990s and the American judgments. Where a family engaged with a post-war restitution system at all, what they filed and what they left out is the first thing to establish.

A state that sells a disputed object launders it, and the doctrine that protects the buyer is not about art. The act of state doctrine exists to keep American courts out of foreign relations. Applied here, it means that once the Netherlands conveyed these panels as part of its own restitution machinery, no United States court would look behind the conveyance, whatever the merits of the 1940 taking.

Where the object physically sits when a state changes policy determines the outcome. Two hundred and two objects from the same seizure went back in 2006 and these two did not, purely because the Dutch state had disposed of them forty years earlier.

None of that is a finding that the museum did anything wrong. Norton Simon bought in 1971 from a seller with a conveyance from a sovereign state, and the paintings have been on public view for over fifty years with the history published. But a reader who wants to know whether a Nazi-era claim is strong should stop reading about 1940 and start reading about what each government did between 1945 and 1970. That is where these cases are won and lost.