THE WORD provenance means “origin,” yet also refers to the history of ownership, particularly of an artwork or artifact.1 The objective of provenance research is to trace the ownership history and location of an object, ideally from its creation to the present. Documentation of the provenance of a work of art has long been a valuable component of art history research. In addition to providing insight into the history of collecting, it can serve as a way to authenticate an object. Moreover, provenance information has become necessary to determine the legal status of an object.
Museums have traditionally conducted provenance research as part of the overall curatorial research of a collection. In recent decades, there has been an increased focus on the provenance of museum objects.2 As such, provenance has evolved to a new level of importance in museums. In effect, information that was once seen as beneficial is now further understood as crucial.
Provenance research supports a museum’s mandate to ensure that all collections in its custody are lawfully held and rightfully owned; in turn, this kind of responsible stewardship helps to maintain a high level of public trust. Whether an object has been in a museum’s permanent collection for many years or is being considered for acquisition, incoming loan, or outgoing loan, its documented history of ownership can be a fundamental factor in making ethical decisions in accordance with museum standards. From a collections management perspective, this chapter offers practical suggestions for the important and often complex work of provenance research and its documentation, with an emphasis on Nazi-era provenance research.3 More than seventy years after the end of World War II and twenty years after the adoption of the Washington Principles on Nazi-Confiscated Art,4 museums have an ongoing responsibility to research, document, and provide access to the Nazi-era provenance of their collections.
Within the diverse scope of museum professions, the field of provenance research has emerged in recent years as a specialized discipline. With expanding access to digitized archives and records, as well as increased efforts at international collaborations,5 the tools and resources for provenance research are quickly evolving.
In the United States, the standards and practices for the museum field are ultimately determined by the museum community itself and are developed through its professional associations, primarily the American Alliance of Museums (AAM) and the Association of Art Museum Directors (AAMD).6 With respect to Nazi-era provenance issues, the standards and guidelines developed by the AAM (Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era) and AAMD (Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era) give museums a strong basis for identifying and applying consistent methods that are most appropriate for their respective staff and collections.7 In addressing provenance issues, each museum is entrusted to incorporate these standards and guidelines into their own policies and procedures, determine the appropriate staffing and funding, organize existing provenance information, establish their own priorities for further research, and make provenance information publicly available.
Although the focus of this chapter is provenance issues related to the World War II era, the information in this chapter will help address other provenance issues and cultural property concerns throughout a museum’s collection.8
From 1933 to the end of World War II in 1945, the Nazi regime conducted one of the largest confiscations of art and cultural property known in history. The Third Reich enacted an elaborate and premeditated system of theft, confiscation, coercion, and destruction, with millions of objects being unlawfully and forcibly taken from their rightful owners.
After World War II, great efforts were made by the Allied forces and other governments to return objects to their countries of origin and to original owners. Many members of the US museum community played leading roles in the success of the postwar restitution effort.9 Although large numbers of objects were restituted, some entered the art market and eventually found their way into various collections in Europe, the United States, and elsewhere, often with lost, obscured, or false provenance information.
Within the last few decades, museums have become increasingly aware of issues of looted art and restitution, particularly objects possibly misappropriated during the Nazi era. In 1998, the Presidential Advisory Commission on Holocaust Assets in the United States (PCHA) was created to study and report to the president on issues relating to Holocaust victims’ assets in the United States. The Department of State and the US Holocaust Memorial Museum then cohosted the Washington Conference on Holocaust-Era Assets. This conference resulted in the release of a document with eleven principles created to help resolve issues related to art and assets looted by the Nazis.10
In the following years, guidelines issued by AAM and AAMD began to reshape museum policies across the United States. In a joint agreement reached with the PCHA in 2000, AAM and AAMD further recommended that museums should strive to (i) identify all objects in their collections that were created before 1946 and acquired by the museum after 1932, that underwent a change of ownership between 1932 and 1946, and that were or might reasonably be thought to have been in Europe between those dates, identified as covered objects; (ii) make currently available object and provenance information on those objects accessible; and (iii) give priority to continuing provenance research as resources allow. AAM, AAMD, and PCHA further agreed that the initial focus of museum research should be European paintings and Judaica.11
In 2003, AAM launched the Nazi-Era Provenance Internet Portal (NEPIP), which provided a searchable registry of objects in US museum collections that possibly changed hands in Europe during the Nazi era, from 1933 to 1945.12 Through the portal, museums could submit and manage their own data on covered objects from their collections in a central location. The participating museums provided descriptive and provenance information for each object, sometimes accompanied with links to additional information on respective websites. Although the portal was a tremendous help for many museums, especially for those which had limited resources to make collections information available through their own websites, it is no longer managed and exists only as an archive. The AAMD later created the registry, “Resolutions of Claims for Nazi-Era Cultural Assets,”13 which is a helpful resource for documenting Nazi-era museum claims. In recent years, the AAMD has taken a leading role in providing provenance research seminars and offering scholarships and information on grant opportunities.
Provenance research is challenging and complex work, particularly for objects possibly misappropriated during the Nazi era. Ownership records of art objects are often incomplete because many factors over time have made it difficult to locate information. Among numerous factors, the upheavals of World War II, the inaccessibility of many archives during the Cold War, destruction from natural disasters, and changing standards of recordkeeping over time have all added to the difficulty of determining a complete provenance for an object. Sometimes provenance records simply reflect a past owner’s wish for anonymity. Other times, the attribution of an artwork may change over time, creating confusion in tracking the documentation.
Provenance research is interdisciplinary by its nature, requiring the ability to consult many types of sources from different fields of study. It requires an extensive knowledge of art history, the expertise to physically examine works of art, and the patience to thoroughly examine numerous sources for possible information. Particularly, provenance research for the World War II era requires a methodical investigation of the object itself, museum object records, museum archives, auction and exhibition catalogs, catalogs of collections, catalogues raisonné, dealer records, photographic archives, and publications of the wartime activities of dealers and collectors. Provenance research also requires proficiency in foreign languages, with at least a reading knowledge of German and French.
At times, provenance research requires examination of archives in other countries and access to documents that may not be publicly accessible. In many cases, museums find it necessary to employ a provenance researcher with a more specific expertise and background. Increasingly, there are online databases and digitized records available through various resources.14
An important provenance research resource for museums is The AAM Guide to Provenance Research by Nancy H. Yeide, Konstantin Akinsha, and Amy L. Walsh, published by the AAM.15 With its extensive historical information, methodologies, indices, valuable resources, and case studies, this guide remains an essential reference for any museum addressing Nazi-era provenance and related issues. Museum Policy and Procedures for Nazi-Era Issues, also published by the AAM and compiled by Helen J. Wechsler, Teri Coate-Saal, and John Lukavic, is another essential resource for collection managers, registrars, and curators.16
At any stage of provenance research, the work can take considerable time, diligence, and expense. However, for most museums, the most substantial amount of time is required to establish and document what is already known about its collection. Subsequently, this provenance data needs to be organized and formatted in a systematic and consistent manner. For example, in The AAM Guide to Provenance Research, there is a suggested standard format for recording provenance.17
The provenance for an object is listed in chronological order, beginning with the earliest known owner. Life dates, if known, are enclosed in brackets. The names of dealers, auction houses, or agents are enclosed in parentheses to distinguish them from private owners. Relationships between owners and methods of transactions are indicated by punctuation. A semicolon is used to indicate that the work passed directly between two owners, and a period is used to separate two owners if a direct transfer did not occur or is not known to have occurred. Footnotes are used to document or clarify information (TABLE 3D.1).
Table 3D.1 Punctuation for Standard Provenance Format
| Punctuation | Meaning |
| [] | Life dates of owner, if known |
| () | Dealers, auction houses, or agents (e.g., not private owners) |
| ; | Semicolon = Direct transfer between owners |
| . | Period = No direct transfer is known |
| [#] | Footnote numbers in brackets and placed after the semicolon or period, then notes are listed in order below |
Certainly, an institution can develop its own format provided it is explained in publications and on its website.18 Any provenance record, whether published or included in a museum’s internal database or external website, should clearly establish a sequence of ownership and document the sources of information.
The work of provenance research and its documentation requires the support of an entire institution. Often, various museum departments intersect and overlap in the goal of making provenance information accurate, consistent, and available to researchers and the general public. Each museum should decide on key staff members who will undertake the necessary duties to achieve this goal.
As part of their general responsibilities, curators most often conduct and review provenance research of their respective collections. Many museums, however, need to appoint at least one additional staff member as a primary contact for provenance information and as a coordinator of the museum’s provenance research. It is ideal if one person, or a small group, can oversee and organize the museum’s provenance information in a centralized manner, as well as prioritize museum objects for further research. Likewise, it can be particularly helpful to have one person as a point of contact for outside inquiries on provenance and for possible claims of ownership. Whether or not an inquiry evolves into a claim of ownership, having it proceed through an initial contact can help maintain a consistency of records.19
As provenance research staff and their specific roles are designated, their contact information should be included in a museum directory and on the museum’s website, if applicable. Many museums include a section on their museum website dedicated to the topic of provenance research, outlining the museum’s efforts in this area, as well as a statement of the museum’s position on provenance and other related cultural property concerns. Museums are increasingly including provenance data as part of basic object information on their websites.
At this time, the museum professionals who primarily work in the area of provenance research and related issues are curators, collection managers, registrars, and archivists. It is ideal that the staff member(s) who primarily work in this area have an extensive knowledge of the museum’s collection, a familiarity with the various types of museum records, and experience working with the objects. Additionally, museum directors, senior-level administrators, and their staff are often closely involved in the supervision and management of these important issues. Furthermore, a museum’s legal counsel plays a crucial role, particularly with cultural property concerns and possible claims of ownership.
Regardless of which staff members are primarily responsible for provenance research, it is clear that registrars and collection managers play a significant role in the success of any provenance research effort. As museum professionals trained to maintain the integrity of records and documentation, registrars and collections managers are often well suited to work in this area. Collections management staff typically have a comprehensive knowledge and understanding of the institution’s records, related legal issues, its collection management policy, and of the collection itself.
There is an increasing call for museum professionals with expertise in provenance research and who are knowledgeable about current cultural property laws and concerns. As such, it is certain that those who work in the field of museum collections management will continue to encounter these issues and make significant contributions to this field.
One of the primary objectives of provenance research of a museum’s permanent collection is to ascertain what is currently known about the ownership history of the collection. In this process, it is important to establish goals and working methodologies to achieve those goals. Any methodology used should be clearly documented so the process and results can be understood and expanded upon by future researchers.
The initial goal, per the AAM recommended procedures, is to determine how many covered objects are in a collection, these being
objects created before 1946 and acquired by the museum after 1932, that underwent a change of ownership between 1932 and 1946, and that were or might reasonably be thought to have been in Europe between those dates. In the event that a museum is unable to determine whether an object created before 1946 and acquired after 1932 (a) might have been in Europe between 1932 and 1946 and/or (b) underwent a change of ownership during that period, it should still be treated as a covered object.20
The speed of calculating a museum’s total number of potentially covered objects depends greatly on the type of museum collection. For example, if it is a small, focused collection, established mostly before the 1930s, this can be a quick and straightforward process. However, many US museum collections grew significantly after 1932 and include numerous works created before 1946. Also, numerous collections in the United States are encyclopedic and diverse in nature, with a number of different categories for consideration. From the outset, researchers are greatly aided if they can systematically search museum records, especially through an effective collections management database system.
Although it is not complex to determine how many objects were created before 1946 and acquired after 1932, it can be time-consuming to discover whether an object may have been in Europe between 1933 and 1945.
After establishing the overall number of objects that were created before 1946 and acquired by the museum after 1932, one might further refine the figure by eliminating certain categories of objects or individual objects known to have not been in Europe during the Nazi era. For example, it might be known that a group of artworks given by a certain patron were in the United States throughout the Nazi era and so can be subtracted from the overall count. Also, as AAM, AAMD, and the PCHA have recommended, the focus should first be on any Judaica and European paintings.21 Museums should try to determine an overall timeline for those areas that need to be researched beyond holdings of European paintings and Judaica, such as sculpture, decorative arts, drawings, and prints. After those categories are completed, and if applicable, museums should estimate the time to examine any remaining potential covered objects in their collections.22
To make the research of covered objects a more manageable project, it helps to organize the collection into smaller groups for research, such as objects associated with a particular dealer, or a patron, or from a particular time period.
With each covered object, all related museum records should be thoroughly examined, including accession records, database entries, object files, wills, bequests, correspondence, and any exhibition and publication histories. Furthermore, it is necessary to physically examine the work in its entirety, documenting the backs of paintings and all sides of objects, looking for any kind of collector’s stamps, labels, numbers, marks, auction house codes, or lot numbers. If there is no existing photography, the object should be fully photographed and documented.
When conducting this internal research, it is most efficient to concurrently document all basic in formation in a format through which the data can eventually be made public on the museum’s web-site. It is recommended that museums follow AAM’s “Twenty Categories of Object and Provenance Information” as a format for initially recording this information (table 3d.2; see also the sample “Twenty Categories of Object Provenance Research” in the Collection Forms section).
During an internal research process, some covered objects may appear more problematic than others. Therefore, the prioritization of provenance research is a necessary phase of the overall research process. It is important to critically evaluate the provenance gaps of covered objects through consideration of a few general factors.
First, there is the potential location of an object during the Nazi era. Although any gap in provenance could be problematic, it helps to look at any known locations and associations of the object. For example, a gap in the provenance history for a painting known to have been in the United States before and following the war would likely not be a candidate for mis-appropriation. Yet, an object associated with a German collection and with a provenance gap between 1933 and 1938 would warrant further research and higher prioritization.23
Another factor to consider during the research process is the identification of red-flag names. One of the most often cited lists of red-flag names is found in records of the Office of Strategic Services (OSS) Art Looting Investigation Unit’s (ALIU) Biographical Index of Individuals Involved in Art Looting.24 Additionally, researchers should become familiar with red-flag names of collections that are known to have been looted within this time period. Although there is no single list of names of all the victims of looting, there are various resources and archives to aid in such research.25 It is important to keep in mind that the discovery of any type of red-flag names only indicates a need of further research. Many objects associated with these names were sold by dealers or were in collections before or after the war. Moreover, thousands of these objects were returned to their rightful owners following the war, thanks to the restitution efforts of the Allied forces.
Table 3D.2 Twenty Categories of Object and Provenance Information (Template Recommended by American Alliance of Museums)
| Category | Comments |
| Artist/Maker | To include artists’ names, alternate names, and previous attributions. |
| Nationality of Artist/Maker | — |
| Life Dates of Artist/Maker | — |
| Place or Culture of Object | Only if artist is unknown. |
| Object Title or Name | To include alternate titles. |
| Date of Work | To include approximate date, if specific date is unknown. |
| Medium/Materials | — |
| Measurements | — |
| Date of Acquisition | — |
| Accession Number | — |
| Object Type | Painting, sculpture, decorative arts, etc. |
| Subject Type | Landscape, portrait, mythological subject, historical, religious, genre, Judaica, etc. |
| Signature and Marks (obverse) | To include signatures, inscriptions, and marks; for paintings, what appears on the front. |
| Labels and Marks (reverse, frame, mount, etc.) | To describe marks and labels (prior to I960) on the reverse of an object (including frame, mount, etc.). Indicate if images are available. |
| Description | To contain description of object (its content, subject, etc.). Museums should make this a priority. |
| Provenance | To contain, at minimum, known owners, dates of ownership, places of ownership, methods of transfer (sale, gift, descent, etc.). To include, if known, lot numbers, sale prices, buyers, etc. To include information on unlawful appropriation during the Nazi era and subsequent restitution. Museums should ensure that provenance information is understandable and organized chronologically. |
| Exhibition History | — |
| Bibliographic History | — |
| Other Relevant Information | To contain anything about the object that would be useful in identifying it for this purpose. If the object fits the definition of Judaica contained in this document, so state. |
| Image | An image is key to identifying an object. Museums should make every effort to include an image with their records. |
Another aspect to keep in mind is a general recognition of the types of objects highly desired and sought by the Nazis throughout this time period. Although their confiscations were wide ranging, there are certain art historical categories that were highly valued and pursued by the Third Reich officers more intensely than others, such as German art of the Renaissance period.26
The provenance researcher should assemble all internal information first, seeking to close any provenance gaps before going offsite to other sources. Once the internal records are thoroughly examined and the information is critically evaluated, staff should contact relevant archives, existent databases, and any art dealers, auction houses, or donors, as may be necessary. Additionally, there are scholars and other researchers who may be able to provide further information or guidance.
Following recommendations by the AAM, AAMD, and PCHA, museums should make currently available information on their covered objects as accessible as possible. By making this information available to the public, museums help to fulfill their mandate of responsible stewardship of their collections. The internet provides the most direct way for museums to share information on objects with the public, researchers, and potential claimants, and an opportunity for others outside the museum to possibly contribute further information that may clarify the provenance of objects.
In addition to posting information on a museum website, there is the NEPIP, designed and managed by AAM on behalf of the US museum community.27 If a museum did not have provenance information on its covered objects formatted for inclusion to the NEPIP, the museum could register on the portal as a participating museum. Initially, a museum provided a contact name, contact information, any links to their museum website, and information on whether the museum had any Judaica holdings in its collection.
As research develops and information is organized, museums can continue to submit and manage their own data on their covered objects.
Per AAM, if in the process of researching a museum’s existing collection, researchers find credible evidence of unlawful appropriation without subsequent restitution, there should be a procedure in place to inform key museum staff. In consultation with qualified legal counsel, the museum should make every effort to resolve the status of the object. This may include making information public and possibly notifying potential claimants. In such a situation, museums should strive to be as open and transparent as possible, seeking ways to responsibly and appropriately address the situation.28
Among the many criteria used for determining whether an object should be added to a collection, the provenance of the object is a factor of crucial consequence. Although museums have historically sought to obtain provenance information on objects intended for acquisition, in recent decades it has become more imperative to obtain and document such information. Currently, museums are proceeding with great caution in acquisitions, not only with respect to Nazi-era provenance but also with acquisitions of various archaeological materials and ancient art objects originating outside the United States.29
AAM has clearly stated that museums should take all “reasonable steps to resolve the Nazi-era provenance status of objects before acquiring them for their collections whether by purchase, gift, bequest, or exchange.”30 In recent years, museums have incorporated more rigorous guidelines and procedures into their collection management policies with respect to acquisitions and provenance.31 For example, many museums send a provenance questionnaire to all potential donors and dealers of art considered for acquisition, including specific requests for provenance information from 1932 to 1945. For ancient art and archaeological objects being considered for acquisition, a questionnaire should also specifically inquire about ownership history of the object, as well as request any export or import documentation.32 Often, the registrar or collections manager is directly involved in this documentation and should work in tandem with the curator in obtaining, analyzing, and documenting all provenance information.
In certain cases, it is prudent for museums to further require a warranty as part of a purchase agreement to ensure the museum obtains good title to an object, which may offer protection from potential future claims.33 Notably, in the 1998 “Report of the Association of Art Museum Directors (AAMD) Task Force on the Spoliation of Art during the Nazi/World War II Era,” the AAMD advises that museums, when purchasing works of art, “seek representations and warranties from the seller that the seller has valid title and that the work of art is free from any claims.”34
Another due-diligence step in the acquisition process is to check the object’s descriptive information and known ownership history against various databases of stolen art. Currently, there are two major organizations that most museums employ, the Art Loss Register (ALR) and Art Recovery International (ARI), both of which are able to access databases of lost and stolen art, antiques, and collectibles.35 These organizations have a great deal of experience with museums in providing search services, research capabilities, and expertise in a number of areas. Although their services are not free, it is a worthwhile investment and necessary expense for many museums to include in their budgets, whether related to the care and research of the collection, exhibitions, or for other related museum projects. With respect to these established databases, there is an important caveat to keep in mind. Submitting a search through these databases is just one step of due diligence for checking objects that have been registered with the databases as lost or stolen. It does not replace further research that might be warranted, nor does it guarantee any protection against possible provenance issues in the future.
Per AAM, when the provenance is incomplete or uncertain for a proposed acquisition, the museum should consider what “additional research would be necessary to resolve the Nazi-era provenance status of the object before acquiring it.”36 It falls to individual museums to determine how these decisions will be made within their institution. It is best to incorporate clear responsibilities and procedures into an acquisitions section of the museum’s collection management policy and update periodically as necessary.
During the research phase of an acquisition, if credible evidence of unlawful appropriation without subsequent restitution is found, it is recommended that the museum notify the donor, seller, or estate executor of the evidence and not proceed with acquiring the object until there is an acceptable resolution and planned course of action. As circumstances and complexities can vary greatly, depending on the situation, any decisions should be made in consultation with qualified legal counsel.37
Once an object has been accessioned into a collection, the object and provenance information about the acquisition should be made public. Press releases on new acquisitions, published in local newspapers or on a museum’s website, help to convey overall transparency. Furthermore, it is recommended that new and recent acquisitions be put on display, as is possible.
With respect to ancient art and archeological objects, the AAMD maintains an object registry for museums to document recent acquisitions of such objects, and especially reasons for acquisition if there is no provenance history dated to at least 1970, per the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.38
Overall, throughout the acquisition process, the museum should strive to be as open and transparent as possible, making new objects available for further research, public review, and accountability.
In recent years, issues of provenance have filtered into almost every collections-related practice within a museum. An institution’s approach to loans, both to and from its collection, should include a thorough consideration of provenance information.
Per the AAM, museums should be aware of their ethical responsibility to consider the status of material they borrow as well as the possibility of claims being brought against a loaned object in their custody.39 AAMD urges museums to review provenance information regarding incoming loans.40
With incoming loans, museums should request that lenders provide as much provenance information as possible. Museums may also want to consult published sources on their own for potential provenance concerns. As with provenance research for existing collections or proposed acquisitions, the borrowing museum must have and maintain clear documentation of this provenance information.
When the provenance is incomplete or uncertain for a proposed loan, the museum should consider what “additional research would be prudent or necessary to resolve the provenance status of the object before borrowing it.”41 It is recommended that museums incorporate clear responsibilities and procedures into a loans section of their collection management policies, and update as necessary.
During the research and planning phase of an incoming loan, if credible evidence of unlawful appropriation without subsequent restitution is found, the borrower should notify the lender of the nature of the evidence and should not proceed with the loan until taking action to clarify these issues.
In recent years, museums have increasingly included conditions in loan agreements and exhibition contracts that stipulate terms regarding the lender’s legal status as sole owner of the loaned object(s). Some agreements stipulate that the borrower will only release or take instructions concerning the loan from the lender or the lender’s authorized agent.42 Furthermore, to limit liability during an exhibition, a borrowing museum may apply, as appropriate and necessary, for Immunity from Judicial Seizure of Cultural Objects, administered through the US Department of State.43
As indicated by professional standards, potential lenders should submit to borrowers, as requested, all known provenance information on any proposed objects for loan. For loans from the collection, designated staff should conduct and document, as appropriate, a provenance review of the proposed loan. In addition to an institution’s established criteria for considering loans, there are a few factors to consider with respect to provenance.
If the proposed loan has not yet been researched, efforts should be made to check internal records and publications, determining if there are potential concerns or if further research is necessary. As standard practice, the museum should clearly document all the related provenance research of any potential outgoing loans.
If any provenance concerns develop in the review process, designated staff should critically evaluate all the known ownership, exhibition, and publication history of the object(s), weighing any potential risks against the potential benefits of increased public knowledge and possible scholarship that might result from the exhibition of the object(s). In such a situation, an appropriate step of due diligence would be to submit the known information about the proposed loan to ALR or ARI for a search against their databases. Depending on where the loan is traveling to for exhibition, it is prudent to be aware of any applicable immunity from seizure laws that may be in place. Depending on the circumstances, an exhibition’s organizer(s) may have secured immunity from seizure for all lenders, but it is best to confirm these details from the borrower and obtain documented evidence.
The provenance review, research information, and summary of the museum’s decision regarding any provenance issues with an outgoing loan should be completely documented as part of the process.
In all incoming and outgoing loans, museums should incorporate practices that carefully consider issues of provenance, not only to protect the interests of the museum but also to responsibly participate in the shared goals of education and scholarship within the field.
AAM states that museums should address claims of ownership of objects in their custody “openly, seriously, responsively, and with respect for the dignity of all parties involved” and, that each claim “should be considered on its own merits.”44 Furthermore, both AAM and AAMD affirm that museums should review Nazi-era related claims “promptly and thoroughly.”45
Although these represent the important and ethical commitments of the field, the professional guidelines regarding ownership claims of objects possibly misappropriated during the Nazi era are somewhat general in nature. Realistically, when faced with such a claim, museums can find themselves in the challenging situation of attempting to respond promptly while simultaneously ensuring their responsibility of due diligence in the matter. More often than not, such claims are complicated, each one with its own unique set of challenges. The process of thoroughly reviewing a claim, while meeting a museum’s fiduciary responsibility to its public, can require a significant amount of time, dedicated staff, and resources. Therefore, it is essential for museums to be as prepared as possible to respond to all inquiries and restitution claims.
Overall, the museum’s goal should be to build a framework that will help support and facilitate a potential claim process. Although claims can vary greatly through unique circumstances and requirements, there are basic factors for consideration.
Whether incorporating relevant language into an existing collection management policy or creating a separate policy, museums should first consider what their response procedures would be throughout a claim process, including the designation of an internal chain of communication.46 Included in this chain of communication should be a core group of staff members including, but not limited to, the director; senior deputy or associate level directors, as appropriate; the chief curator; the curator associated with the claimed object; the head of the museum’s public relations department; collections manager or registrar; legal counsel; and provenance research staff, if applicable.47
The museum should determine a primary museum contact who can best correspond with the claimant or the claimant’s representative. It is recommended that staff create and maintain a documented chronology of the claim, recording the claim’s history, including such information as the date and content of an initial contact or correspondence; any requests for information; submission or receipt of evidence; summaries of phone calls, other contacts and communications; and summaries of evolving internal questions and opinions.48 This documentation is an efficient way to keep key staff and trustee members clearly and consistently informed on the evolving status of a claim.
Per AAM, museums ought to conduct their own research during a claim process and should also “request evidence of ownership from the claimant in order to assist in determining the provenance of the object.”49 Depending on what is currently known and documented about the claimed object, all efforts should be made by the museum to pursue further information on the history and provenance of the object.
Although museums must individually determine what level of documentary evidence is necessary to consider restitution of an object, it is recommended that museums ask for receipt of all related information from the claimant, with specific requests for evidence that satisfactorily addresses (i) that the object was confiscated by the Nazis or was subject to a forced sale, with no subsequent restitution or compensation; (ii) that the claimant or claimants are the sole legal heir(s) to the object, representing the entirety of those who could possibly make a claim on the object; and (iii) documentary evidence, photographic or of an adequate visual description and documentation, that clearly matches and identifies the claimed object with an actual object held in the museum’s custody.
If these questions are not fully answered or adequately addressed, it can lead to a difficult situation. Although museums are committed to responding to all claims, they also hold their collections in trust for the public and have a fiduciary duty to not deaccession and restitute objects from their collection without sufficient evidence. For example, museums are not free to restitute an object to a claimant on the basis of ambiguous evidence of ownership, when a subsequent claimant might appear with evidence of ownership, thus making the museum liable to an additional claimant.
It must be noted that the due diligence that a museum must undertake before considering restitution of an object should not be dependent on a question of monetary market value. Because museums hold all of their works in trust for the public, that standard should never be based on monetary value of an object.
If, however, a museum does discover or receive evidence that supports the claim and addresses the major areas of concern, then they must determine what kind of official internal documentation is needed to proceed with a recommendation and resolution. As part of the necessary documentation of the claim process, the museum should ensure that it receives a formal request for restitution or compensation from the claimant or claimant’s representative.
Both AAM and AAMD state that if a museum determines that an object in a museum collection was unlawfully appropriated during the Nazi era without subsequent restitution, the museum should seek to resolve the matter with the claimant “in an equitable, appropriate, and mutually agreeable manner.”50 Furthermore, both organizations strongly suggest that museums seek “methods other than litigation” to resolve such claims.51 In such cases, it is ideal to negotiate any and all terms of restitution outside of litigation. A claim and restitution process are difficult and complex enough for all involved without the added expense and potential stress of litigation. When both museums and claimants are able to cooperate and coordinate all the necessary documentation and terms of an agreement, the entire process can provide an educational opportunity for a museum and its community.
Once a museum has come to a decision to resolve the claim, there are still the remaining considerations of museum procedure and documentation.
When a museum negotiates to keep the object in the collection via an agreed-on compensation to the claimant, there may be mutually agreeable conditions that guarantee the museum will educate the public about the object’s provenance through gallery texts and publications. Any legal agreements should be coordinated and executed through a museum’s legal counsel.
If a museum and claimant agree that the object should be removed from the collection and restituted, there are actions that must be considered and taken by a museum’s governing body (e.g., its board of trustees).
As part of its collection management policy, a museum should have clear deaccessioning procedures in place. These policies typically include a museum’s specified criteria for consideration of the removal of an object. In preparation for possible restitution, museums may choose to update their policies by adding a criterion that conveys the need to remove works of art that “are subject to restitution or repatriation on the basis of clear evidence proving past illegal appropriations.”52
In the case of proposed restitution, a deaccessioning recommendation should be submitted to the museum’s governing board to take such an action. Ideally, the recommendation would include a summary of the claim and clearly convey the intent of restitution.
If a museum does not have a clear deaccessioning policy, museum staff may want to consider creating a special recommendation or resolution in consulta tion with the museum’s legal counsel. This special recommendation, to be submitted to the museums’ governing board for action, should summarize the claim and clearly outline the reasons for deaccession and restitution.
If a museum’s governing body votes to deaccession and restitute an object, plans must be made for the transfer of ownership of the object. The museum should work with its legal counsel and the claimant or claimant’s representative to prepare a satisfactory legal transfer agreement. If there are potential issues or expenses involved regarding the physical return of the object, such as packing, shipping, and insurance, those terms should be negotiated and clearly documented either prior to the transfer, or be included in the transfer of ownership agreement.
Although ownership claims for objects possibly misappropriated during the Nazi era can vary greatly in their historical context, evidence, and outcome, it is certain that throughout any claim process, the museum must follow a clear, consistent, and thorough documentation process to ensure due diligence and to meet its fiduciary responsibilities.
Within the last few decades, the museum field has experienced a paradigm shift with the increased focus on the provenance of objects acquired by museums, as well as an ever-expanding scrutiny of objects held in museum collections. As a result, there is an increased need for staff with expertise in provenance research and with extensive knowledge of current cultural property issues and laws. Museums continue to hold these collections in the public trust and remain committed to their responsible stewardship. Museums stand committed to following the highest ethical standards and professional guidelines set by the greater museum community. Therefore, they must remain vigilant in the provenance research of their collections and ensure that there are proper staff and resources for this important work.
The history of the ownership and location of an object remains a fascinating and vital aspect of art history, regardless of any potential legal claim. With the recently established field of provenance research, it is hoped that provenance information will become more visible not only through museum websites but also in the stories told in museum galleries, enriching the understanding and interpretation of museum collections. •
Bradsher, G. (compiler). 1999. Holocaust-Era Assets: A Finding Aid to Records at the National Archives at College Park, Maryland. Washington, DC: National Archives and Records Administration.
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Nicholas, L.H. 1995. The Rape of Europa: The Fate of Europe’s Treasures in the Third Reich and the Second World War. New York: Vintage Books.
Petropoulos, J. 1996. Art as Politics in the Third Reich. Chapel Hill: University of North Carolina Press.
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Simpson, E. (ed.). 1997. The Spoils of War: World War II and Its Aftermath. The Loss, Reappearance, and Recovery of Cultural Property. New York: Harry N. Abrams, Inc.
Wechsler, H. J., T. Coate-Saal, and J. Lukavic (compilers). 2001. Museum Policy and Procedures for Nazi-Era Issues. Washington, DC: American Association of Museums.
Yeide, N. H., K. Akinsha, and A. L. Walsh. 2001. The AAM Guide to Provenance Research. Washington, DC: American Association of Museums.
Yeide, N. H. 2005. “Introduction.” In Vitalizing Memory: International Perspectives on Provenance Research, pp. 9–10. Washington, DC: American Association of Museums.
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1. The term provenience also denotes origin and is most often used in an archaeological context. According to the 2019 Archaeological Institute of America glossary, provenience refers to “the three-dimensional context (including geographical location) of an archaeological find, giving information about its function and date.” See https://www.archaeological.org/programs/educators/introduction-to-archaeology/glossary/#p.
2. After the fall of the Berlin Wall in 1989 and the dissolution of the Soviet Union in 1991, historians began to obtain access to formerly closed archives in Eastern Europe and in the former Soviet Union. This access allowed for a new awareness of the extent of looting during the World War II era, thereby raising the issue of art and assets misappropriated by the Nazis. The declassification of archival documents in the United States further contributed to the increased scholarship on this topic. In addition to concerns regarding possible Nazi loot, there are ongoing concerns about art and archaeological objects that might have been looted and illegally removed from countries of origin since the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. See http://portal.unesco.org/en/ev.php-URL_ID=13039&URL_DO=DO_TOPIC&URL_SECTION=201.html.
3. The National Socialist German Worker’s (Nazi) Party was founded in 1919 and was headed by Adolf Hitler beginning in 1921. The Nazi era refers to the time period of 1933–1945 when the Nazi Party was in power in Germany. This time period is sometimes referred to as the World War II era or the Holocaust era.
4. In 1998, the Washington Conference on Holocaust-Era Assets set forth international standards to address the issue of museum objects with unknown Nazi-era provenance. These standards, known as the Washington Principles on Nazi-Confiscated Art, were adopted by conference representatives from forty-four governments; see https://www.state.gov/washington-conference-principles-on-nazi-confiscated-art/. These ideas were reaffirmed and strengthened through the 2009 Terezin Declaration on Holocaust Era Assets and Related Issues; see https://2009-2017.state.gov/p/eur/rls/or/126162.htm.
5. Such recent efforts include the international German/American Provenance Research Exchange Program (PREP) organized by the Smithsonian Institution and the Stiftung Preußicher Kulturbesitz (Berlin). The goal of the 2017–2019 program is to create a network of specialists from German and US art museums to improve research methods and practices pertaining to World War II–era provenance research and to publish an online guide to World War II–era provenance research resources in Germany and the United States. See https://www.si.edu/events/prep.
6. Although US museums are not overseen by a governmental regulatory agency, they must comply with all applicable laws.
7. For official guidelines and procedures regarding museums and Nazi-era provenance issues, see the American Alliance of Museum’s website (https://www.aam-us.org/programs/ethics-standards-and-professional-practices/unlawful-appropriation-of-objects-during-the-nazi-era/) and the Association of Art Museum Director’s website (https://aamd.org/standards-and-practices).
8. For guidelines and standards regarding museums and the provenance of archaeological materials and ancient art, see the American Alliance of Museum’s website (https://www.aam-us.org/programs/ethics-standards-and-professional-practices/archaeological-material-and-ancient-art/) and the Association of Art Museum Director’s website (https://aamd.org/standards-and-practices).
9. See the list of “Suggested Resources for Provenance Research in Museum Collections” at the end of this chapter for publications and websites related to this topic and time period.
10. See H. J. Wechsler, T. Coate-Saal, and J. Lukavic, comp., Museum Policy and Procedures for Nazi-Era Issues (Washington, DC: American Association of Museums, 2001), 93, Appendix C. The principles can also be found online at https://www.state.gov/washington-conference-principles-on-nazi-confiscated-art/.
11. See “AAM Recommended Procedures for Providing Information to the Public about Objects Transferred in Europe during the Nazi Era.” Available at: https://www.aam-us.org/wpy-content/uploads/2018/01/nepip-recommended-procedures.pdf.
13. See https://aamd.org/object-registry/resolution-of-claims-for-nazi-era-cultural-assets/browse.
14. There are multiple digitized resources listed on websites such as the National Archives (http://www.archives.gov/research/holocaust/), Getty Research Institute Provenance Index Databases (www.getty.edu/research/tools/provenance/), and Fold3.com’s World War II: Holocaust Collection (https://www.fold3.com/browse/115/).
15. N. H. Yeide, K. Akinsha, and A. L. Walsh, The AAM Guide to Provenance Research (Washington, DC: American Association of Museums, 2001).
16. Wechsler et al., Museum Policy and Procedures.
17. Yeide et al., The AAM Guide to Provenance Research, 33–34.
18. Yeide et al., The AAM Guide to Provenance Research, 33. Within the field, there is a lot of discussion on how to best standardize and access provenance data. There is ongoing research on ways to link provenance data among institutions. For example, see “Art Tracks Digital Provenance Project.” Available at: https://cmoa.org/art/art-tracks-digital-provenance-project/.
19. These observations are based on the author’s experiences and research at a museum with an encyclopedic art collection.
20. See “AAM Recommended Procedures for Providing Information to the Public about Objects Transferred in Europe during the Nazi Era.”
21. Per AAM, Judaica is broadly defined as the material culture of the Jewish people, including ceremonial objects for communal or domestic use. Judaica comprises historical artifacts relating to important Jewish personalities, momentous events, and significant communal activities, as well as literature relating to Jews and Judaism. See “AAM Recommended Procedures for Providing Information to the Public about Objects Transferred in Europe during the Nazi Era.”
22. Per AAM, museums should incorporate Nazi-era provenance research into their standard research on collections and into funding proposals for museum projects, if applicable. Depending on their particular circumstances, museums are also encouraged to pursue special funding to undertake Nazi-era provenance research.
23. See Yeide et al., The AAM Guide to Provenance Research, 49–51.
24. Yeide et al., The AAM Guide to Provenance Research, 55–56, 259–296 (ALIU lists included in indices).
25. Yeide et al., The AAM Guide to Provenance Research, 51, 55–68.
26. Yeide et al., The AAM Guide to Provenance Research, 41–44.
27. Available at: nepip.org/
28. See “AAM Guidelines Concerning the Unlawful Appropriation of Objects during the Nazi Era.” Available at: https://www.aam-us.org/programs/ethics-standards-and-professional-practices/unlawful-appropriation-of-objects-during-the-nazi-era/.
29. See “AAM Standards Regarding Archaeological Material and Ancient Art.” Available at: https://www.aam-us.org/programs/ethics-standards-and-professional-practices/archaeological-material-and-ancient-art/. See also “Suggested Resources for Provenance Research in Museum Collections” at the end of this chapter, which lists resources related to these issues.
30. See “AAM Guidelines Concerning the Unlawful Appropriation of Objects during the Nazi Era.”
31. See Wechsler et al., Museum Policy and Procedures, 1–27.
32. See “2013 Guidelines on the Acquisition of Archaeological Material and Ancient Art.” Available at: https://aamd.org/standards-and-practices.
33. “2013 Guidelines on the Acquisition of Archaeological Material and Ancient Art,” 1–11 (examples of warranties).
34. See “Report of the Association of Art Museum Directors (AAMD) Task Force on the Spoliation of Art during the Nazi/World War II Era (1933–1945), Washington, DC, June 1998.” Available at: https://aamd.org/standards-and-practices.
35. See http://www.artloss.com/ and https://www.artrecovery.com/ for more information.
36. See “AAM Guidelines Concerning the Unlawful Appropriation of Objects during the Nazi Era.”
37. “AAM Guidelines Concerning the Unlawful Appropriation of Objects during the Nazi Era.”
38. See https://aamd.org/object-registry/new-acquisitions-of-archaeological-material-and-works-of-ancient-art/browse.
39. See “AAM Guidelines Concerning the Unlawful Appropriation of Objects during the Nazi Era.”
40. See “AAMD Standards and Practices.” Available at: https://aamd.org/standards-and-practices.
41. See “AAM Guidelines Concerning the Unlawful Appropriation of Objects during the Nazi Era.”
42. See Wechsler et al., Museum Policy and Procedures, 29–40.
43. See US Department of State, “Immunity from Judicial Seizure-Cultural Objects.” Available at: https://www.state.gov/immunity-from-judicial-seizure-statute-22-u-s-c-2459/.
44. See “AAM Guidelines Concerning the Unlawful Appropriation of Objects during the Nazi Era.” Note that in 2016, the Holocaust Expropriated Art Recovery Act became US law to assist claimants by removing some of the legal technicalities and obstacles often found within a claim process. See https://www.congress.gov/bill/114th-congress/house-bill/6130.
45. “AAM Guidelines Concerning the Unlawful Appropriation of Objects during the Nazi Era.” See also “Report of the Association of Art Museum Directors (AAMD) Task Force on the Spoliation of Art during the Nazi/World War II Era (1933–1945), Washington, DC, June 1998.” Available at: https://aamd.org/standards-and-practices.
46. See Wechsler et al., Museum Policy and Procedures, 65–85. See examples from museums of related procedures.
47. Museums may also include a member of their governing board in this group or designate someone to keep the board informed through the claim process.
48. This suggestion is based on shared accounts from some US museums that have experienced Nazi-era restitution claims within the last twenty years. It is informally suggested as a tool that could be adapted, updated, and changed as to the needs of a particular institution.
49. See “AAM Guidelines Concerning the Unlawful Appropriation of Objects during the Nazi Era.”
50. See “AAM Guidelines Concerning the Unlawful Appropriation of Objects during the Nazi Era” and “Report of the Association of Art Museum Directors (AAMD) Task Force on the Spoliation of Art during the Nazi/World War II Era (1933–1945), Washington, DC, June 1998.”
51. “AAM Guidelines Concerning the Unlawful Appropriation of Objects during the Nazi Era” and “Report of the Association of Art Museum Directors (AAMD) Task Force on the Spoliation of Art during the Nazi/World War II Era (1933–1945), Washington, DC, June 1998.”
52. This language is taken from the Virginia Museum of Fine Arts (VMFA) Deaccessioning Policy, which is part of the VMFA Collections Management Policy, 2017.