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Agreements Negotiated by the Commission in the Public and Private Sectors

The Library of Congress has agreed to recognize the provenance of certain books in its collection that had been looted by the Nazis.

As a result of its research into the history of the Jewish Cultural Reconstruction, Inc. (JCR), a successor organization created in 1947 to preserve cultural assets of the Jewish people, the Commission learned that between July 1, 1949 and January 31, 1952 the JCR transferred approximately 158,000 items to libraries in the United States. Among the libraries that received books were Harvard University, Johns Hopkins University, New York University, the University of Iowa, Brandeis University, Hebrew College, and the Jewish Institute of Religion. Several of these are able to identify the books that they received. Others are not.

According to documents examined by the Commission and passed on to the Library of Congress, the JCR sent 5,708 books and periodicals to the Library, of which 107 were defined by the JCR as rare. The Commission also suspected that other items looted by the Nazis had made their way to the Library of Congress through other channels.

On August 6, 1999 Commission staff met with James H. Billington, Librarian of Congress, to alert him to the presence of these books and to discuss appropriate steps to identify and recognize the existence of these books. The Commission and the Library agreed that it would not be feasible to sample the Library's entire collection of over 25 million volumes, thus precluding the possibility of estimating the number of looted books that ended up in the general collection. Instead, they agreed to sample the Library's Hebraic collection of approximately 165,000 volumes--the most likely recipient of JCR books--to try to determine how many JCR books were still in that collection in the Library of Congress.

This procedure sampled the approximately 125,000 items in the Hebraic collection that could have been looted because they were published before 1945 and were in Europe between 1933 and 1945. The survey revealed that nearly 2,300 of the 125,000 items came from the JCR, while 200 more were clearly looted from Jewish victims of the Holocaust and came to the Library by other means.

This effort yielded several important results. First, it added considerably to the Library's own knowledge of the origins of its Hebraic collection. Until the Commission instigated this exercise, the Library believed that it had few books and periodicals of this nature. The Library now knows that it holds at least 2,300 items from the JCR in its Hebraic collection, and it is reasonable to assume that additional books in other languages were placed in other collections throughout the library.

Second, contrary to what had been previously thought, many of the items received from the JCR are important examples of Hebraica, including numerous Rabbinic texts, machzors (holiday prayer books used on the Jewish New Year and Day of Atonement) and other religious volumes. Notably, researchers found nearly all of the 107 books that were designated for the Library of Congress on the JCR's rare book list. The Library also possesses secular items from the JCR, such as a Yiddish translation of Thomas Mann's Magic Mountain, that have important historical value.

Finally, the sampling revealed that many of the items received from the JCR did not have the commemorative bookplate that the JCR requested receiving institutions to affix, although the Library still has the bookplates it received 50 years ago from the JCR.

To recognize the unique provenance of the JCR books and other items that were looted by the Nazis, the Library has agreed to establish a "virtual library" of JCR titles and related books. 11 This virtual library will allow the public to search for JCR and related items on-line and to examine the volumes in person in the Library's African and Middle Eastern Reading Room. The Library will also give priority to cataloging any of the remaining books that have been identified as belonging to this collection.

Additionally, the Library is developing a collection "name" field, which will serve to aggregate all the records for the JCR collection within the virtual library. This step will enable users to click on a single link that will lead them to every title in this special collection. The Library will also make this list of titles available to agencies, organizations and individuals involved in the restitution of Holocaust-era assets and will restitute any of these volumes upon establishment of a legitimate claim. The Library will also insert a copy of the original JCR bookplate in each volume from which it was omitted.

The Library will include selected volumes from the collection of JCR and related books in a major permanent exhibition of the Library's international treasures, scheduled to open in February of 2001. The captions used in this section of the exhibit will highlight the unique history of the volumes displayed. Finally, the Library will mount a display of JCR books in the African and Middle Eastern Reading Room in 2002 to mark the 50th anniversary of the completion of the JCR's work.

The National Gallery of Art has agreed to return a painting to its rightful owners.

Shortly after the Commission began operations, its staff contacted National Gallery of Art director Earl A. Powell, III, about obtaining access to the Gallery's documentation for its Holocaust-era art, i.e., works in the collection created before 1945, acquired after 1932 and which were or could have been in Europe between those dates. Members of the Commission staff met with Gallery staff on June 21, 1999 to share information and to facilitate Commission access to research resources beyond those already available on the Gallery's website.

In February 2000, Commission staff suggested that the Gallery add a "provenance" search field to its website database to allow those using the site to search proper names in the chain of title of Holocaust-era works in the Gallery collection. Because provenance information had already been incorporated into the collection's database, the Gallery was able to quickly add this feature. The "provenance" search feature was unveiled at the Commission's meeting on February 29.

In April 2000, Mr. Powell and his staff met with members of the Commission's Committee on Art and Cultural Property and Commission staff to discuss policies for disclosure of Holocaust-era art of incomplete or questionable provenance and to demonstrate the National Gallery's provenance research procedures.

The National Gallery of Art currently has in its possession 12 paintings that were looted during the World War II era. Of these, 11 were restituted to their original owners after the war. There is evidence that Frans Snyders' Still Life with Fruit and Game was looted and not restituted to its rightful owner. The Gallery's investigation into the painting's history revealed that the donor had purchased the work from Baron von Pollnitz, a Luftwaffe officer, who received the painting from Karl Haberstock, a principal Nazi art dealer. The painting came from the collection of the Stern family in Paris and was confiscated by the Nazis. There are no documents that prove how Haberstock acquired the painting.

At the urging of the Commission, the National Gallery of Art had agreed to mount a plaque reflecting the doubtful provenance of this painting. Subsequently, having seen the painting and its provenance on the Gallery's website, the Stern family made a claim for the painting. The Gallery has agreed to return the painting to the family.

The Commission has identified dormant bank accounts and other unclaimed property of Holocaust victims in the United States, and significant members of the banking industry have agreed to endorse suggested best practices for the investigation of bank records regarding such accounts.

To determine whether banks in the United States held accounts of Holocaust victims that became dormant and escheated to the states, the Commission conducted a pilot project matching the names of a limited list of Holocaust victims with a list of escheated property maintained by the State of New York.

In the United States, dormant accounts do not remain in the possession of the bank but rather escheat to the state in which the bank is located. Consequently, the Commission matched the names of Holocaust victims from Holland and Belgium, as well as a list of respondents to the German census of 1939 that required Jews to report their property, against the names of account holders whose accounts had escheated to the State of New York. The Office of the Comptroller of New York State created this database as a public service at the Commission's request.

This procedure matched nearly 400,000 names with over a million unclaimed property records and yielded 18 matches of names of victims with dormant bank accounts in the State of New York. A preliminary search has revealed that the value of these accounts ranges from a few dollars to five thousand dollars.

The Commission has also sought to assess whether people who ultimately became victims of the Holocaust held stocks and bonds issued by American companies. Therefore, the Commission conducted another cross match, comparing the list of Dutch, Belgian and German victims against a database comprised of lists of escheated property from 48 states and the District of Columbia maintained by ACS Unclaimed Property Clearinghouse, Inc., a third-party storage and automation facility operating under contract with many states. 12 ACS performed this cross match as a public service at the Commission's request. The results of this cross match are still preliminary, but indicate that other unclaimed property belonging to Holocaust victims can be identified.

Overall, the demonstration confirmed the need for the use of more sophisticated software that is sensitive to the differences in spelling and pronunciation of common names if the cross match is to capture all of the potential matches and eliminate any false matches. Because the Commission was unable to research each match in depth or to ensure that the databases used were complete, the number of matches obtained should be viewed as a floor, not a ceiling. The Commission's pilot project was intended to demonstrate the feasibility and value of conducting a comprehensive cross match using more complete lists of victims' names and escheated property. That effort was successful, and the Commission hopes to broaden the search for such accounts by repeating this exercise with more comprehensive lists and the participation of more states.

To facilitate additional searches for dormant accounts, the Commission, in discussions with The Chase Manhattan Bank, Citigroup, Inc. and HSBC Bank USA held under the auspices of the New York Bankers Association, has reached an agreement defining suggested best practices to be used by banks when they search for Holocaust assets. These suggested best practices have been unanimously approved by the New York Bankers Association, which has made a significant commitment to assisting in the identification of Holocaust-era assets. 13

Although both the operation of state-abandoned property laws and the wartime freezing of foreign-owned assets make it most likely that information about Holocaust victims' assets originally deposited in banks will be found in state or federal archives, banks themselves may have information that can assist in identifying or clarifying the fate of such assets.

Under these suggested best practices, banks will first define the universe of accounts to be located to include any account opened at the bank or any of its predecessors in interest before 1945 by a depositor whose address at any time between 1933 and 1945 was in Germany, or a European country occupied by or allied with Germany, and that went dormant after l933.

Banks will then review all Records (defined as any recording in any form of information about an account in the defined universe) that could contain any information about such accounts, including but not limited to transactional customer records, abandoned property procedures and records, safe deposit box procedures and records, and escheatment procedures and records.

Banks will examine applicable document retention policies, both current and contemporaneous, for possible sources of Records and, notwithstanding the provisions of such policies, determine whether transactional customer records (paper, microfilm, microfiche) exist and review whatever records of the bank and its predecessors in interest still exist. If Records exist, banks will collect and review them and attempt to identify accounts in the defined universe. Records will be maintained in a segregated file.

Banks will contact outside counsel and accounting firms that worked for the bank and its predecessors in interest from l933 to the present to determine if they have any Records. They will collect and review any such Records and attempt to identify accounts in the defined universe. These Records (or copies thereof) will be maintained in the same file.

Any identification of an account in the defined universe will be reported to the appropriate unclaimed property official of the state to which the account would have escheated. The bank will report publicly on the conclusions of its review, including to the extent possible the number and value (but not the identity of the account holder) of any accounts identified.

The Commission believes that once such a comprehensive search has been completed in accordance with these practices, banks should not be required to make repetitive individual searches.

The museum community has agreed to full disclosure of Holocaust-era works and their provenance.

Holocaust-era cultural property--that is, works created before 1945, transferred after 1932 and before 1946, and which were or could have been in continental Europe between those dates--is found in museums, libraries, galleries, and private collections in the United States.

As early as 1946, the State Department notified museums and other institutions that stolen art was entering the country, but in the years following the war it was not the standard practice for museums, collectors and dealers to investigate the provenance of works they acquired. At the same time, few families whose assets were stolen had the information or the resources--financial or psychological--to locate and pursue claims for lost property.

Although U.S. law provides that good title cannot be conveyed to stolen property, if the current possessor of a stolen work can successfully argue that a claimant's action to recover it is time-barred under a statute of limitations, the goal of restitution can be defeated. Another potential impediment to restitution was raised in a U.S. Government effort to restitute Holocaust-era art by means of a forfeiture action, United States v. Portrait of Wally. 14 In that case, a federal district court in New York held that U.S. forces charged with recovering stolen items were acting on behalf of the true owners and that such recovery prohibited continued treatment of the item as stolen property. Nothing in the Commission's research indicates that the U.S. Army was acting on behalf of owners or their heirs.

While most claims for restitution of looted cultural property have been successfully resolved, the process of resolution has sometimes required lengthy and expensive litigation. Because survivors are generally in the last years of their lives, any delays are prejudicial. Claimant and museum representatives agree that alternative dispute resolution mechanisms for such claims would be beneficial.

American museums have committed themselves to provide public access to information about Holocaust-era works in their collections. At the Commission's hearing in New York on April 12, 2000 several museum directors reaffirmed their policies for disclosure of provenance for Holocaust-era works in their collections. The policies were developed separately by the individual museums, and therefore differed in scope and methodology.

In an effort to forge a common policy in response to the Commissioners' concerns, the directors present agreed to full disclosure, which means: (1) all Holocaust-era works will be identified and disclosed and all provenance information in the possession of the museums regarding those works will be disclosed; (2) such provenance information will be disclosed, even where there are no known gaps; and (3) provenance research by museums will be a continuing process with additional information disclosed as it becomes known. They also agreed to restitution where claims are clearly established. Indeed some museums, notably the Seattle Art Musuem, the North Carolina Museum of Art and the Denver Art Museum have returned valuable works in their collections to the heirs of the original owners. The Boston Fine Arts Museum recently settled a claim under a part purchase, part donation agreement with the heirs that allowed the museum to keep the painting. Members of the Commission noted that gaps in provenance do not create a presumption that a work was looted but merely present an opportunity for claimants to come forward with the understanding that they would have to meet the burden of proof currently required by law.

Following discussions with individual museums and their representatives, the American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD), the Commission finds that the museum community is committed to full disclosure as that term is defined above. The Commission acknowledges the commitment of the museum community to full disclosure and restitution as set forth in the letters from the AAM and the AAMD. 15 The Commission recognizes that provenance research is difficult, costly and time consuming, often involving access to records that are hard to obtain or that may be nonexistent, and that few, if any, museums have the resources now to accomplish this.

The museum community has begun to develop tools to achieve full disclosure and will participate in the process of creating a searchable central registry of Holocaust-era cultural property held by American museums, beginning with European paintings and Judaica. This searchable central registry will allow interested parties to access the pool of available information from one Internet site. By taking these steps, the museum community has greatly enhanced the search for truth and justice.

The Commission is also holding continuing discussions with other representatives of interested parties involved in the art trade with the aim of initiating a process that will result in the creation of parallel standards for the conduct of those parties.

11 For the letters of agreement obtained by the Commission, see Appendix E.

12 California and Indiana did not participate in the database cross match.

13 For the letters of agreement obtained by the Commission, see Appendix E.

14 105 F. Supp. 288 (S.D.N.Y. 2000).

15 For the letters of agreement obtained by the Commission, see Appendix E.

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