Watch Live: Monuments Men Awarded Congressional Gold Medal

The Monuments Men will be awarded the Congressional Gold Medal today. Watch it live beginning at 3 p.m. today by clicking on the video box below.

UPDATE - The broadcast is now archived in the video below. The recording has intermittent audio and video problems. Please be patient.

Senate and House leaders of both political parties will bestow Congress's highest civilian award to the team of men and women who, during World War II, sought to preserve cultural heritage from destruction.

Both legislative chambers on Capitol Hill passed the Monuments Men Recognition Act in May 2014, which the president enacted into law on June 9, 2014.




Congresswoman Kay Granger (R-TX-12) was a primary sponsor of the legislation. Some of the lawmaker's remarks to members of the House appear in the video below.



Text copyrighted 2015 by Cultural Heritage Lawyer, a blog commenting on matters of cultural heritage law, cultural heritage policy, antiquities trafficking, and museum risk management. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post without the express written consent of CHL is prohibited. CHL is a project of Red Arch Cultural Heritage Law & Policy Research, Inc.

Congressional Gold Medal Authorized for Monuments Men

The president last week signed into law the Monuments Men Recognition Act of 2014 to award the Congressional Gold Medal to the men and women who fought to preserve cultural heritage during World War II.

Rep. Kay Granger (R-TX-12) and Senator Roy Blunt (R-MO) spearheaded the legislative effort along with other members of the House and Senate.

Congresswoman Kay Granger’s remarks on the House floor last month (video below) highlight the importance of the new law.

By Rick St. Hilaire. Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

UPDATED > Back Again: H.R. 4292, The Foreign Cultural Exchange Immunity Clarification Act

[UPDATED 3/7/15: The  Foreign Cultural Exchange Immunity Clarification Act (H.R. 889) has been introduced again in 2015, during the 114th session of Congress.]

First adopted by the U.S. House of Representative in 2012 and then left to die in the Senate, the Foreign Cultural Exchange Immunity Clarification Act (FCEICA) is back, having been reintroduced by the three original sponsors along with a new co-sponsor.

CHL supported the bill the last time it made its way to Capitol Hill and recommended modifications that would help to bolster the State Department's review of IFSA requests. CHL once again supports the legislation.

Judiciary Committee member Rep. Steve Chabot (R-OH) introduced H.R. 4292 on March 25 along with co-sponsors Rep. John Conyers (D-MI), Rep. Bob Goodlatte (R-VA), and Rep. Steve Cohen (D-TX). Their purpose is to amend the Foreign Sovereign Immunities Act (FSIA) in order to encourage foreign lending of art to the U.S.

The bill proposes that artwork of cultural significance imported for purposes of temporary exhibition by a cultural institution, and which is in the national interest, will not be considered "commercial activity." That is important because federal law generally protects foreign states from lawsuits except in situations involving "commercial activity."

The concept of "commercial activity" was expanded by the courts in the 2005 case of Malewicz v. City of Amsterdam. That case involved the heirs of Kazimir Malevich who sued Amsterdam in Washington, DC to either recover the artworks that the city’s Stedelijk Museum loaned to American museums or, in the alternative, to receive $150 million in damages. The heirs claimed that the foreign museum unlawfully obtained the paintings.The City of Amsterdam, meanwhile, argued that the Immunity from Seizure Act (IFSA)--not to be confused with the FSIA--protected it from the lawsuit.

IFSA, formally called the Immunity from Seizure Under Judicial Process of Cultural Objects Imported for Temporary Exhibition or Display (22 USC § 2459), protects foreign artwork on temporary loan in America from judicial seizure. It does so by preventing a civil litigant in a U.S. court from claiming the art itself to satisfy a judgment in a lawsuit, for example.

The Malewicz court ruled that Amsterdam had engaged in “commercial activity” under the FSIA. So while IFSA may have protected the actual artwork from seizure, the FSIA did not protect the City of Amsterdam from a damages award, said the court. The FCEICA would correct this contradictory result.

The latest version reintroduces the so-called "Nazi exception," which the bill now words in this fashion:

Nazi-era claims.--[Jurisdictional immunity] shall not apply in any case ... in which rights in property taken in violation of international law are in issue ... and the action is based upon a claim that such work was taken in connection with the acts of a covered government during the covered period [of January 30, 1933 through May 8, 1945]. 

Covered governments are defined as Germany, its allies, Germany's military occupied territories, and cooperating regimes during the period of the Second World War.

The bill has been referred to the Judiciary Committee.

UPDATE 4/3/13
The full committee of the Judiciary quickly held a markup of the legislation, without a hearing, and yesterday approved the bill by voice vote. The measure will now be sent to the full House for consideration.

The Judiciary Committee declared, "By making a minor change to the Foreign Sovereign Immunities Act, this legislation strengthens the ability of U.S. museums and schools to borrow foreign government-owned artwork and cultural artifacts."

A bipartisan statement issued by the bill's Republican and Democratic sponsors announced:

The United States has long recognized the importance of a cultural exchange of ideas through artwork loaned from other countries. We are proud to support this strongly bipartisan legislation that increases Americans’ access to beautiful artwork and artifacts from around the world, fosters knowledge and appreciation of the arts and other cultures, and encourages learning, history and creativity.

UPDATE 5/9/14
The full House passed the bill on May 6 by a vote of 388 to 4.  The bill was sent to the Senate and referred to the Judiciary Committee on May 7.

Photo credit: Micahel Slonecker

By Rick St. Hilaire Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Blog url: culturalheritagelawyer.blogspot.com. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

Two Court Battles Raise Questions of Liability for AAM, AAMD, and Other Cultural Property Organizations

Cultural property accrediting and membership organizations are likely consulting with their lawyers in the wake of recent litigation involving two separate court actions.

The case of Meyer v. Board of Regents of the University of Oklahoma, et al. took a new turn on January 10 as both the American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD) were curiously named as defendants in an amended complaint filed in New York federal district court.

The AAM advocates on behalf of thousands of museums across the country. It accredits hundreds of cultural institutions. The AAMD, meanwhile, is a leading cultural organization whose mission is to support art museum directors accepted for membership.

The Meyer lawsuit claims that AAM and AAMD share legal liability for the University of Oklahoma’s purportedly wrongful acceptance of a Camille Pissarro painting entitled “La bergère rentrant des moutons.” The artwork is alleged to have been taken by the Nazis during World War II, imported into the U.S. in 1956, and then bequeathed to the University of Oklahoma in 2000. “La Bergère” remains on permanent display at the Fred Jones, Jr. Museum of Art on the University of Oklahoma campus.

Meanwhile, in another case, a federal district judge in Virginia on January 17 ruled against a nonprofit college organization that revoked a school’s accreditation. The defendants in the case of Professional Massage Training Center, Inc. v. Accreditation Alliance of Career Schools and Colleges (AACSC) immediately appealed the unusual decision to the Fourth Circuit. The AACSC court articulated the general rule that “great deference” is to be afforded an accrediting institution's decision. Nevertheless, the federal district judge ordered AACSC to pay damages after determining that the organization acted in an “arbitrary and unreasonable” fashion when revoking the accreditation of the Professional Massage Training Center. Damages of roughly $429,000 were ordered.

Meyer and AACSC both raise issues of what liability accrediting organizations may potentially face.

In the “La Bergère” case, Plaintiff Léone Meyer now argues in an amended complaint that the AAM and AAMD broke their accrediting and membership agreements with the The Fred Jones Museum, causing the plaintiff to suffer harm. Meyer's attorney characterizes the plaintiff as an intended beneficiary of both the accrediting and membership “contracts,” arguing that she was denied their expected benefits because AAM and AAMD did nothing after The Fred Jones Museum failed to follow the organizations' provenance investigation guidelines when the museum performed background checks on “La Bergère.” The amended complaint declares:

AAM failed to hold Fred Jones Museum to the high standards required in order to become accredited when AAM either issued or renewed Fred Jones Museum’s accreditation without any regards to its adherence to the Unlawful Appropriation Standards. 

....

[Moreover, the] "AAMD failed to monitor Fred Jones Museum’s lack of compliance with the guidelines in the 1998 Report [of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945)], and did not follow its Code of Ethics’ procedure pertaining to violations of its code when Fred Jones Museum utterly failed to comply with the guidelines in the 1998 Report." 

These contract claims undoubtedly will be challenged by lawyers for AAM and AAMD.

Among the questions posed at the outset might be whether the defendants’ published guidelines actually mandate obligations on museums. The difference, of course, between what a museum must do versus what it should do is the difference between a potentially enforceable obligation and a hopeful suggestion. In the Meyers case, plaintiff's counsel writes that the defendants are “bound,” a term that implies some duty. But the amended complaint simply articulates that museums are bound by “guidelines,” which are usually understood as aspirational calls to action rather than mandatory obligations.

Another question posed might be whether the contracting parties actually intended to have a third party benefit substantially from the accreditation and membership contracts. Generally speaking, a third party beneficiary may enforce a contract even though he or she is not a direct party so long as the third party is an intended beneficiary rather than an incidental beneficiary.

Was Plaintiff Léone Meyer an intended beneficiary of AAM's membership contract or AAMD's accreditation contract—assuming they were even contracts? Courts across the country typically look to the language contained in a contract as well as to the circumstances that formed the contract in order to determine if there was an intention to directly benefit a third party.

So while issues of liability are raised by the new lawsuit against AAM and AAMD for allegedly failing to act against one of its members, the Accreditation Alliance of Career Schools and Colleges (AACSC) has been sanctioned for the opposite, namely revoking the accreditation of one of its members.

Given the two lawsuits, accrediting and membership organizations in the cultural property realm must be wondering exactly what their legal responsibilities and risks are.

Photo credit: Peter Skadberg

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2014 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited.  CONTACT INFORMATION: www.culturalheritagelawyer.com

Monuments Men Recognition Act Introduced in Congress

Lawmakers last month introduced legislation on Capitol Hill seeking to honor those who protected cultural heritage from destruction during World War II. The Monuments Men Recognition Act marks a bipartisan effort to award the Congressional Gold Medal to the Monuments Men.

Senator Roy Blunt (R-MO) and Congresswoman Kay Granger (R-TX-12) each sponsored legislation in the Senate and House, respectively, to bestow one of the nation's highest awards.

"I believe the veterans who participated [in the Monuments Men] are certainly worthy and deserving of the recognition of Congress’ highest expression of appreciation, the Congressional Gold Medal,” Granger said in a prepared statement.

The texts of S. 1862 and H.R. 3658 chronicle the history of the Monuments Men and their importance:

(1) On June 23, 1943, President Franklin D. Roosevelt formed the American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas.

(2) The Commission established the Monuments, Fine Arts, and Archives (MFAA) Section under the Allied Armies.

(3) The men and women serving in the MFAA Section were referred to as the Monuments Men.

(4) These individuals had expertise as museum directors, curators, art historians, artists, architects, and educators.

(5) In December 1943, General Dwight D. Eisenhower empowered the Monuments Men by issuing orders to all commanders that stated they must respect monuments so far as war allows.

(6) Initially the Monuments Men were intended to protect and temporarily repair the monuments, churches, and cathedrals of Europe suffering damage due to combat.

(7) Hitler and the Nazis engaged in a pre-meditated, mass theft of art and stored priceless works in thousands of art repositories throughout Europe.

(8) The Monuments Men adapted their mission to identify, preserve, catalogue, and repatriate almost 5,000,000 artistic and cultural items which they discovered.

(9) This magnitude of cultural preservation was unprecedented during a time of conflict.

(10) The Monuments Men grew to no more than 350 individuals and joined front line military forces; two Monuments Men lost their lives in action.

(11) Following the Allied victory the Monuments Men remained abroad to rebuild cultural life in Europe through organizing art exhibitions and concerts.

(12) Many of the Monuments Men became renowned directors and curators of preeminent international cultural institutions, professors at institutions of higher education, and founders of artistic associations both before and after the war.

(13) The Monuments Men Foundation for the Preservation of Art was founded in 2007 to honor the legacy of the men and women who served as Monuments Men.

(14) There are only five surviving members of the Monuments Men as of December 2013.

The introduction of the legislation coincides with the anticipated debut of The Monuments Men movie (preview below), which is based on Robert Edsel's book titled Allied Heroes, Nazi Thieves, and the Greatest Treasure Hunt in History.

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com

New York's Highest Court Rejects The Right to Pillage

It is no surprise that New York's Court of Appeals decided last week that a "spoils of war" legal theory could not be upheld. That state's highest court ruled that pillaging during World War II does not invest a possessor of stolen cultural heritage with title.

In the case of In the Matter of Riven Flamenbaum, Flamenbaum's attorney offered astonishing oral arguments to the Court of Appeals affirming the right of pillage, justifying the legal right of Soviet soldiers to steal Nazi looted art, and conceding that the client may have been a thief.

The case involved the Vorderasiatisches Museum in Berlin, which sought recovery of a 3,000 year old Assyrian gold tablet found by German archaeologists from the Ishtar temple in Ashur, Iraq and excavated before World War I. The tablet had been in the museum's collection since 1926 but went missing in 1945. The museum remained closed during World War II, placing the Ashur objects in storage. The tablet later appeared in the collection of Riven Flamenbaum in New York in 2003 when it was discovered in his estate following his death.

The museum argued that Flamenbaum never could have acquired title to the tablet. Flamenbaum's estate, meanwhile, contended that the museum was time-barred from petitioning the court for return of the object because the museum took no action to find the tablet until decades later.

In its opinion issued November 14, the state appeals court held, "The 'spoils of war' theory proffered by the Estate—that the Russian government, when it invaded Germany, gained title to the Museum's property as a spoil of war, and then transferred that title to the decedent—is rejected."

The court noted that there was no proof the Russian government ever had possession of the tablet. But the justices pointedly added, "Even if there were such proof, we decline to adopt any doctrine that would establish good title based upon the looting and removal of cultural objects during wartime by a conquering military force."

In reaching its decision, the justices noted that  it was the official policy of the United States during World War II to forbid pillaging of cultural artifacts."

The Court of Appeals expressed some concern during oral argument about the museum's action, or lack thereof, to locate the tablet. But the court concluded in its decision:

While the Museum could have taken steps to locate the tablet, such as reporting it to the authorities or listing it on a stolen art registry, the Museum explained that it did not do so for many other missing items, as it would have been difficult to report each individual object that was missing after the war. Furthermore, the Estate provided no proof to support its claim that, had the Museum taken such steps, the Museum would have discovered, prior to the decedent's death, that he was in possession of the tablet.
...
While the Estate argued that it had suffered prejudice due to the Museum's inaction, there is evidence that at least one family member (decedent's son) was aware that the tablet belonged to the Museum. And, although the decedent's testimony may have shed light on how he came into possession of the tablet, we can perceive of no scenario whereby the decedent could have shown that he held title to this antiquity.

The Archaeological Institute of America, Lawyers' Committee for Cultural Heritage Preservation, U.S. Committee of the Blue Shield, and others joined together to file an amicus brief. They argued that "looting and illegal removal of cultural objects during wartime by a conquering or occupying military force or by individuals is anything other than outright theft [which] is contrary to United States' domestic law and to international law—international principles which the United States has played a leading role in developing."

Photo credit: plex

This post is researched, written, and published on the blog Cultural Heritage Lawyer Rick St. Hilaire at culturalheritagelawyer.blogspot.com. Text copyrighted 2010-2013 by Ricardo A. St. Hilaire, Attorney & Counselor at Law, PLLC. Any unauthorized reproduction or retransmission of this post is prohibited. CONTACT INFORMATION: www.culturalheritagelawyer.com