|Van Gogh, View of Asylum and Church at St. Remy|
The Third Reich confiscated, looted, or otherwise wrongly took vast numbers of works of art from public and private collections in Germany and in occupied countries. Holocaust victims were particular targets of this cultural property theft. For complex reasons, in most instances nearly fifty years elapsed between the end of World War II and the assertion of claims in U.S. courts for restitution of this stolen, “Holocaust art.” That time lapse creates an insurmountable burden for some plaintiffs’ efforts to recover their property: the current possessor’s assertion of a statute-of-limitations defense. This article describes an alternative route to restitution in those situations. Under federal law, stolen property is forfeitable if the government demonstrates an indictable offense under the National Stolen Property Act (NSPA). This kind of in rem civil forfeiture action is independent of, and does not require the government to undertake, a criminal prosecution under the NSPA. To prevail in a civil forfeiture action predicated on an NSPA violation, the government must prove, by a preponderance of the evidence, the elements of an NSPA violation. In 1986, Congress amended the NSPA in ways that create an opportunity for the government to accomplish restitution in situations where a civil plaintiff would be time-barred under state law. First, Congress replaced the NSPA’s former requirement that the stolen goods be in interstate commerce with the requirement that the stolen goods have crossed a U.S. or state border. That change eliminated a defense predicated on goods having left interstate commerce by, for example, coming to rest. Second, Congress added “possession” of stolen goods as an enumerated offense. The effect of these amendments is to eliminate a defense based on the passage of time: The statute of limitations for possession of stolen goods commences to run only when the possessor divests herself of possession. Under federal forfeiture statutes the government has authority to return forfeited property to its original owners. Thus, federal law may permit the government to achieve for Holocaust victims what they, as civil plaintiffs, cannot accomplish themselves. The United States has adopted clearly articulated policies favoring restitution of Holocaust art. This paper argues that the United States could support those policies by pursuing this novel application of the NSPA. However, it also questions whether such cases are appropriate, given the rationales supporting statutes of limitations.