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Whose art thou? A woman's or a nation's?

By Meryl Conant, Medill News Service

March 2004

[to the lead story in Republic of Austria v. Altmann]

At the age of 88, Maria Altmann still recalls the art-adorned walls and the scent of freshly-cut flowers in her aunt and uncleís luxurious Vienna mansion. She called it her second home, where she spent much of her childhood before the Nazi invasion of Austria.

Although Altmann was still a child when her aunt, Adele Bloch-Bauer, died from meningitis at the age of 43, she has distinct memories of Adele, who was both the sister of her mother and the wife of her fatherís brother.

"What I remember about her was she was very cool [and] elegant," Altmann said. "She always had a long white dress onÖShe constantly smoked cigarettes out of a long golden cigarette holder.

"She entertained all the people she wanted to meet at lavish parties at the house, all the musicians, actors, composers, painters," Altmann added. "It was always very beautiful, very elegant."

Altmannís uncle, Ferdinand Bloch-Bauer, commissioned Gustav Klimt to paint two portraits of his wife, Adele. These portraits, along with four landscape paintings by Klimt, graced the walls of the Vienna home even after Adeleís death.

But, when the Nazis invaded, Ferdinand fled and left behind his home and possessions, including his treasured artwork. Altmann also escaped, coming to Los Angeles in 1942, where she still lives as an American citizen.

"I lived through those paintings," Altmann said. "I grew up with [them] until [I was] 22 and [then] one day they were gone."

Altmann had always accepted Austriaís claim that Adele had formally requested in her will that Ferdinand donate the portraits to the Austrian Gallery upon his death, a request to which he agreed.

According to the website maintained by Altmannís lawyer, RandolÝSchoenberg, Altmann first heard to the contrary when the Austrian government opened records in 1998. Documents showed that the Klimt paintings may have been appropriated illegally. Also that year, a law went into effect requiring Austria to return possessions misappropriated during the Nazi years.

After reading Adeleís will and other documents, those in Altmannís camp came to the conclusion that Adeleís wish was not legally binding. They say Ferdinand was the technical owner and did not legally donate the paintings to the gallery when he died in 1945; rather, he left all of his possessions to his nieces and nephews, as he himself was never a father.

"[Adele] in her will simply requested her husband to leave after his death the paintings to the gallery," Altmann said. "Well, what she couldnít have foreseen in 1923 is what happened in 1938; that everything they lived for, collected and treasured was taken out of the house and sold in public auctions, dragged all over the place and looted."

Those opposing Altmann read the documents differently.

"Speculation about what [Adele] would have done 20 or 25 years later is just fantasy," said Scott Cooper, the lawyer who represents Austria. "The bequest in [Adeleís] will is valid under Austrian law."

According to Cooper, Ferdinand accepted his wifeís wishes in court in 1926, thus making the bequest legally binding and designating the Austrian gallery as the artworkís final resting place. Even though Ferdinand altered his will in later years, he made no specific reference to the paintings and thus, Austria argues, did not intend to give the paintings to his lineage.

Altmann contended that Austria knows that it is not the rightful owner but clings to the portraits because they are, in her own words, "the toast of the museum" and does not wish to give them back.

"The [1998] law has not, however, prevented the Austrian Government from continuing to block the return of art that it does not want to return to its rightful owner," according to a written statement by the Commission for Art Recovery, an international organization that endorses Altmann and is dedicated to returning Nazi-looted art to their rightful owners.

Originally, Altmann brought suit in Austria to demand the return of the paintings, which she estimated to be worth $110 million. However, she said the filing fees in Austria totaled approximately $2 million. Cooper said such fees, the price of which are a percentage of the amount of the claim, are typical practice in most European courts.

In her deposition in 2002, Altmann said that even after Austria agreed to halve these fees, she would have had to mortgage her house to pay them. So, she and Schoenberg, whom she said she has known since he was born, brought suit in the United States against Austria.

Austria has challenged the Altmannís right to bring suit in the United States.

"Austria doesnít believe that the claim of Ms. Altmann belongs in the United States court," Cooper said. "The events that occurred have nothing to do with the fact that [Altmann] came here to live. They were Austrian events."

However, both the California trial court and the 9th Circuit Court of Appeals found proper jurisdiction for Altmann to bring suit. When the Supreme Court accepted Austriaís appeal and heard oral arguments on Feb. 25, 2004, Altmannís case became the first Holocaust-related claims case to ever reach the highest court, according to Schoenberg.

Although the roots of this case are one womanís attempt to reclaim her familyís art, the tug-of-war with Austria has faded into the background and is not the issue being argued in the Supreme Court. Rather, one of the main questions is whether an individual has the right to bring suit in U.S. courts against a foreign nation over events that occurred more than five decades ago.

This question has spawned concern over the potential detrimental effects the case and others like it could have on foreign policy.

"The courts will begin for the first time in American history to impose their own subjective views of the conduct of foreign sovereigns," Cooper said. "The courts, the Supreme Court has many times said, are not entitled to and are ill-suited to make judgments about the quality of the conduct of foreign countries. Moreover, the courts are prohibited from interfering with the U.S. executive judgments."

Cooper argued that the writers of the Constitution designated the right to negotiate foreign policy to the executive and legislative branches.

"The administration of cases against foreign sovereigns has long been recognized by this Court as being a matter of great national interest," Cooper said in his oral argument in front of the Supreme Court. "The question of when we decide to exercise jurisdiction over foreign sovereigns is an essential component of the way this country interacts with other countries."

The United States government submitted a friend-of-the-court brief and spoke during the oral arguments on behalf of Austria to express its concerns if jurisdiction is granted. The government did not articulate an opinion on the paintings at the heart of the issue, focusing only on the legal questions.

"[C]laims by nationals of one country against the government of another are frequently sources of friction between the two sovereigns," Deputy Solicitor General Thomas G. Hungar told the justices. "[Such] claims against foreign sovereigns have always been addressed through diplomatic negotiations and foreign claims processes, and not in U.S. courts."

In addition to these concerns, the government said a ruling in favor of Altmann could open the door to an inundation of other suits against foreign nations. "Weíre not talking just about Austria here," Hungar said. "There are claims and potential claims against countless foreign nations." In fact, Mexico, Japan and France submitted briefs to the Supreme Court citing similar worries.

For example, recently a case was brought in the United States against Japan for their involvement in sex-related war crimes that occurred during World War II.

While questioning Schoenberg during oral arguments in the Supreme Court, Justice Stephen Breyer addressed the governmentís concern that hearing Altmannís case would inspire more like it against foreign nations.

"What I take is [Austria and the United States governmentsí] argument [is] that if we say there is jurisdiction here, suddenly, our courts become places where you litigate who owns property all over the world, at least if you trace an interest to an American citizen," he said. "That would be a pretty good nightmare, wouldnít it?"

Schoenberg said he did not think this particular case could be seen to have foreign policy ramifications.

"Weíre very sensitive to the Governmentís concern, the can of worms argument here," Schoenberg said in response. "These cases against Mexico, against Japan, against Poland could potentially pose serious state problems. This particular case doesnít."

"[The can of wormís argument] is not legitimate in this case at all," Schoenberg added during a phone interview. "Weíre fighting over the ownership of paintings. Itís really over a sentence in a will. Thatís not going to lead to foreign policy dilemmas."

Sarah Jackson, the historic claims director of the Art Loss Registry, a London-based organization working to reconcile stolen art with its rightful owners, also sees this case as unique. Although she hesitated to discuss this specific case since the registry has no direct involvement, she said that although most cases are settled outside a courtroom, when claims do end up in court they are not typically between a person against a nation.

"[Altmannís case is] such a unique case from that point of view," she said. "Itís kind of a David and Goliath case."

Altmann is not apprehensive about taking on a nation.

"Iím not nervous because you see I am very safe and secure in my belief," she said. "I have nothing to hide. I donít say one thing thatís not true. Itís them that should be nervous.

"What I want only is that the truth comes out [and] that justice is done."

Regardless of the outcome, Schoenberg said Altmann is inspiring a valuable lesson.

"I think itís important that whether we win or lose, having a case before the Supreme Court the story is told," he said. "If you do learn about the case, you canít help but be impressed by what Maria Altmann is doing."

[to the lead story in Republic of Austria v. Altmann]