Credit: Camille Pissaro
Background on Nazi Looted Art
World War II represented one of the largest art theft operations in history with a staggering twenty percent of all European art looted by the Nazi Party. The residual effects of the illegal seizures of cultural objects still prompt the creation of new laws nearly eighty years later. Beginning in 1933, Nazi Germany implemented a regime of systematic persecution against the Jewish people, ultimately leading to the Holocaust, during which nearly six million Jews were murdered—the largest genocide in history.
As part of their broader effort to dehumanize and weaken the Jewish population, the Nazis sought not only to strip Jews of their civil rights but also to dismantle their economic stability and cultural identity. This process began with the confiscation of property, businesses, and personal belongings, which included invaluable works of art. The systematic looting of Jewish-owned art and cultural property was not merely an act of theft; it was a deliberate attempt to erase Jewish cultural heritage and fund the Nazi war machine.
Nazi confiscation of various forms of art officially began in 1938 in Austria and 1939 in Poland. What began as a personal mission to further purge Europe of what the German Reich deemed “degenerate” art, Nazi confiscation of art led to the creation of government policy and institutionalized appropriation. The art was sometimes used as payment by Jewish people in exchange for exit visas and taxes, creating a black market among many Europeans. The stolen artwork was stored in private collections or sold to other countries or buyers to fund Hitler’s regime. Hermann Göring, a Nazi military leader, used appropriated art worth more than $200 million in 1945, consisting of more than 1,000 items to create his own personal collection.
In the post-war period, many victims and their heirs faced significant legal hurdles when reclaiming their stolen property. These challenges stemmed from jurisdictional conflicts, differing statutes of limitations, sovereign immunity, and difficulties proving ownership decades after the thefts occurred. Today, new laws like California’s AB 2867 aim to right these historical wrongs, providing Holocaust survivors and their families a legal avenue to recover stolen art.
What is AB 2867?
In September 2024, California Governor Gavin Newsom signed Assembly Bill 2867 (AB 2867) into law which aims to help facilitate the recovery of art and cultural property stolen during the Holocaust. National outrage over the recent Ninth Circuit decision in Cassirer v. Thyssen-Bornemisza Collection Foundation is cited to be the catalyst for the new Bill. The court dismissed the claims of the Cassirer family, who fought for the return of a Camille Pissarro painting that was being held by the Thyssen-Bornemisza Collection (TBC) Foundation. The painting was sold by German Jew, Lilly Cassirer, under Nazi duress in exchange for a way out of Germany. The lawsuit was originally filed in 2005 by Claude Cassirer against the Kingdom of Spain and the TBC Foundation. The Cassirer family invoked the Foreign Sovereign Immunities Act, claiming that the painting was taken in violation of international law—a point Spain did not dispute.
After years of appeals and jurisdictional challenges, the U.S. Supreme Court issued a ruling in 2023 that favored a “choice of law rule,” which allows the forum state's choice-of-law—not federal common law—to determine which substantive law governs the case. The case was remanded to the Ninth Circuit, which ultimately decided that Spanish law would apply. The court determined that legal and governmental interests would be more impaired if California law were used. Additionally, the court reasoned that Spain had a vested interest in maintaining the integrity of its prescriptive title laws, which allows ownership title of property after a certain period of time has passed, even if the original acquisition was flawed. By contrast, California law—which holds that stolen property cannot pass good title—would have invalidated Spain’s ownership of the painting, undermining these long-standing principles. The Ninth Circuit’s decision effectively upheld Spain's ownership of the painting, despite acknowledging that Spain had acquired it under questionable circumstances, leaving the Cassirer family without recourse to reclaim their stolen property.
Although the Ninth Circuit Court ruled that Spanish law should apply, California’s AB 2867 ensures that similar future claims brought in California courts will be decided under California law, providing a more favorable legal environment for restitution claims. The law mandates that California state law applies in cases where claimants from California seek the return of such stolen property, overriding the potential application of foreign law.
Furthermore, AB 2867 explicitly challenges the Ninth Circuit decision in Cassirer v. TBH, stating that the bill aims to avoid the choice of law decision by the court entirely. Justice for the Cassirer family is also preserved as the bill contains a retroactive application provision, enabling California substantive law to apply in cases that are pending, including any action in which judgment is not yet final. Essentially, this clause allows the Cassirer to go back to court, yet again, seeking restitution of their family’s stolen property. The Cassirer family has released a statement that they will soon formally challenge the Ninth Circuit’s decision citing the new law.
Legal Implications of AB 2867:
The passage of California’s AB 2867 introduces significant changes to cultural property law and highlights the limitations of existing international frameworks to resolve legal conflict. It also opens several legal and policy questions, including conflict with sovereign immunity, preemption, and due process concerns.
One of the key impacts of AB 2867 is that it mandates the application of California substantive law in stolen art cases, including when foreign sovereign immunity would typically apply. The U.S. Foreign Sovereign Immunities Act (FSIA) typically protects foreign governments from being sued in American courts. There are notable exceptions, in which a foreign state shall not be immune from the jurisdiction of the United States, including cases in which property is expropriated in violation of international law. Although this statute is construed to apply specifically to cases similar to Cassirer, the mandate to apply California substantive law in stolen art cases presents a broader challenge to sovereign immunity than the FSIA. While AB 2867 is intended to operate within the boundaries of federal foreign relations legislation, the lack of consistency between the laws poses a potential threat that may lead to further international jurisdictional conflicts. That being said, it is a clear declaration of support for justice sought by victims, survivors, and their families. In taking a strong stance to promote California law over international frameworks, AB 2867 demonstrates the legislature’s values of “morality and justice, not the misapplication of legal technicalities."
Similar to foreign sovereign immunity issues, the passage of the new bill has raised internal federalism concerns. Previous attempts of the California legislature to aid Holocaust survivors or their heirs in restitution claims have been struck down for federal law preemption. California Code of Civil Procedure Section 354.3 attempted to extend the statute of limitations for claims targeting Nazi-looted art. However, the Ninth Circuit held the statute was preempted under the "foreign policy field preemption" doctrine. In Von Saher v. Norton Simon Museum of Art, the court held that the federal government, not the state, has the authority to regulate Holocaust-era claims and foreign policy. Notably, the present bill asserts that California law should be used “notwithstanding any other law or prior judicial decision” and in congruence with the HEAR Act, a federal law established to prevent restitution claims from Holocaust crimes from being unfairly barred by the statute of limitations. Still, committee commentary highlights preemption to be a potential issue in the future for this bill. Claims that seek benefit from AB 2867 will have to navigate a complicated legal framework to properly enable their claims to be heard on the merits—rather than be struck down for procedural technicalities.
Lastly, the retroactive application of California law to pending or appealable cases raises fairness and legal predictability concerns around due process. Foreign museums and institutions, which have acquired pieces under the assumption it has complied with local laws, will be subject to litigation under California law. Therefore, these institutions will be required to exercise further due diligence to determine the true provenance of artistic works, including paintings, sculptures, and other cultural items. These works, often passed through many hands and across international borders, may have complicated ownership histories, making it difficult to definitively verify their origins. Art collectors and museums may assert good faith claims for complying with local laws, which retroactively subjects artwork to new standards and interferes with due process. As a result, the application of California law could lead to increased legal uncertainty and financial burdens for institutions, while raising broader concerns about the balance between promoting restitution and protecting the rights of current owners.
Ultimately, AB 2867 presents issues highlighting the limitations of existing international frameworks that attempt to resolve cultural restitution. The 1970 UNESCO Convention provides non-binding, moral guidelines for restitution, emphasizing the protection of cultural property through preventive measures, restitution provisions, and international cooperation. Similarly, the Washington Principles on Nazi-Confiscated Art provides a basis for the restitution of cultural property by extending the statute of limitations and resolving nationwide jurisdictional conflicts. However, both efforts lack a binding influence on court decisions. AB 2867 showcases the need for stronger legal mechanisms to support global restitution efforts and provide uniformity across international legal systems. Jurisdictional decisions should not be the primary deciding factor impacting the outcome of such claims. AB 2867 promotes a new avenue for restitution within California and underscores the need for consistent international legal standards to ensure justice for the victims of historical wrongs, regardless of the jurisdictional basis of the claim.
AB 2867 and the Business Landscape:
Aside from the bill impacting procedural legal mechanisms like preemption and due process, the practical effects on businesses, particularly those in the art market, auction houses, and galleries, may soon show. California’s AB 2867 enables survivors of the Holocaust and their families the chance to reclaim stolen artworks, the legislation not only addresses historical injustices but also reshapes the landscape for art ownership and transactions.
One of the immediate effects of AB 2867 is the potential for increased litigation regarding the provenance of artworks. Businesses will need to be diligent in verifying the history of pieces it acquires or sells to avoid legal disputes over ownership. This heightened scrutiny may lead to increased costs for galleries and auction houses as it implements more rigorous due diligence processes, including legal consultations and provenance research, to establish clear titles for the art it handles. As a result, these changes may impact victims financially. With the opportunity to utilize California law in international disputes, many California victims of stolen art have a chance to litigate their claims in a local jurisdiction.
AB 2867 could also influence museum practices and overall art market dynamics. Museums may face increased pressure to review and rectify its collections, especially for pieces that have questionable ownership history in connection to the Holocaust. This might necessitate the reevaluation of existing exhibitions and potentially lead to the restitution of artworks to rightful owners. The law could also alter market dynamics by shifting buyer behavior; collectors may become more cautious in their purchases, prioritizing artworks with verified histories. This change could create challenges for galleries dealing in high-value pieces and require it to heighten transparency and ethical practices to maintain consumer trust.
While AB 2867 aims to rectify historical wrongs, it also imposes new challenges and opportunities for those operating within the art sector, requiring them to navigate a more complex legal and business landscape. The long-term effects of AB 2867 are unclear. The hope is that not only will the Cassirer family get the justice they have been seeking, but that the State of California will provide hope for similar families, and aid in the global progression toward universal and moral standards for cultural restitution.
*The views expressed in this article do not represent the views of Santa Clara University.
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