Steve and Katie talk with their colleague Tom Kline about his client, the Massachusetts Charitable Mechanic Association (MCMA), and its decades-long quest to reclaim the dramatic marble statue The Wounded Indian by Peter Stephenson, modeled after the Roman sculpture The Dying Gaul. MCMA was founded by Paul Revere in 1795 and was gifted the statue in 1893. After vacating its storied headquarters in 1958, MCMA was told the statute had been destroyed. Only in 2023 did it get the statue back.
Resources
https://www.nytimes.com/2023/08/09/arts/design/wounded-indian-chrysler-museum-boston.html
https://www.washingtonpost.com/dc-md-va/2023/08/09/wounded-indian-statue-norfolk-boston-settlement/
https://schlaw.com/#/about/thomas-r-kline
Episode Transcription
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City.
Steve Schindler: Hi, Katie.
Katie Wilson-Milne: Hi, Steve. How are you?
Steve Schindler: I’m doing well, and I’m looking at you rather than being in the room with you, because I know you have a cold and our listeners I’m sure will be sympathetic to that.
Katie Wilson-Milne: Yeah, it seems to be going around. I’m going to mute myself when I cough or sneeze, but doing okay.
Steve Schindler: Alright, we will appreciate that. We are here today with our colleague Tom Kline, who’s back on the podcast, I think for the second time. Although the first time that Tom joined us he was not yet with our firm. He now is of counsel to Schindler, Cohen & Hochman in our art law group, and Katie and I work closely with Tom.
In recent years, he’s focused his practice on litigation, dispute resolution, and advice concerning art, cultural property, museums, nonprofit governance, and related issues. He’s also experienced in matters concerning art claimed to have been taken by the Nazis during the Second World War, and he is a nationally recognized authority on Holocaust-related art claims. He has a long biography and we’ll post a link to it, but we’re really pleased to have Tom here today with us.
Tom Kline: Hello, Steve and Katie. I’m very pleased to be part of the Schindler Cohen firm now. And greetings to our listeners. Glad to have the chance to discuss The Wounded Indian.
Steve Schindler: Right.
Katie Wilson-Milne: Yeah, so our topic today is certainly within your expertise, Tom, but is a little different than our typical Holocaust-era or, you know, cultural property claims. So we’re excited to talk to you about it. I guess we should start. The story we’re going to ask you to tell today and talk about for our listeners is about one pretty magnificent statue and sort of how it travels in and out of Massachusetts and back again, and the kind of decades you’ve worked on that. So maybe you could start by telling us about the statue at the heart of the story.
Tom Kline: That’s right, Katie. This is a case that doesn’t fit into any category easily. It’s not really a contemporary theft because the piece disappeared in the 1950s. The statue itself is magnificent. The listeners can Google Wounded Indian and see many images of it. It was carved from a block of, I think, Vermont marble in the 1850s, let’s say 1848 to 1850 by a fellow named Peter Stephenson, who was a Brit who became an American citizen.
The statue is viewed as one of the first and finest neoclassical sculptures made in the United States, particularly the fact that it’s made from one block of American marble, probably in his death agony with an arrow suggesting he was killed by another Native American, and is modeled on a statue that’s quite well known from antiquity called The Dying Gaul, which people can also Google and find images of, which was itself based on a Greek statue that was probably in bronze— all of that available on the internet, history to see. But this statue stands alone as a magnificent work of art, but also a controversial one because of the cultural aspects of it. In the 1850s when this was carved, was probably the tail end of the Indian removal, with Indians being moved out of the East Coast, the Ohio Valley, into the Trail of Tears, and so on. And it’s hard to understand what Stephenson was trying to depict, and I’m neither an art expert or a cultural expert, so I leave it to other people. But again, if you go on the internet and look up Wounded Indian, you’ll find interpretations that it’s a heroic interpretation. I don’t think you’d depict someone dying who was easy to overcome. So it reflects the conflict of the era and perhaps the view of Native Americans as a dying race. But it’s quite controversial what— how it should actually be viewed. My client, I did represent the Massachusetts Charitable Mechanic Association, which was the original owner, views it as an art object that stands by itself for its artistic merit. In today’s world, museum people look at it and say, well, what did the artist mean to convey?
Steve Schindler: So actually, and before we get to your client which we want to talk about, the Massachusetts Charitable Mechanic Association or sometimes called MCMA, can you just talk a little bit about who commissioned it and why did they commission it and how did it end up with the MCMA?
Tom Kline: Well, the Massachusetts Charitable Mechanic Association was founded way back in 1795. Paul Revere was a founding member of it.
Steve Schindler: The Paul Revere?
Tom Kline: The Paul Revere. It was dedicated to the advancement of mechanical arts, and today, it continues that purpose. Paul Revere III is on the board and is their general counsel, and they try to advance institutions that train people for mechanical positions, particularly people who have some kind of physical, emotional, mental disability and require assistance to become self-sufficient. So it has existed continuously throughout that time, and it raises money and makes grants for education and training.
Steve Schindler: And so back in around 1850, thereabouts, is it the case then that they made a grant to or commissioned Peter Stephenson to create this work, or was it done differently?
Tom Kline: No, I think he made the statue on his own initiative. He exhibited it in England. I think it was also at a fair in Philadelphia. It was acquired by other individuals that didn’t come to MCMA’s ownership until it was donated in 1893 by, I think, a fellow named James W. Bartlett who had it then.
Steve Schindler: Okay.
Katie Wilson-Milne: Was donated to the MCMA?
Tom Kline: Yes, the MCMA had a huge exhibition hall in Boston in a location that’s now where the Prudential Center is, and they exhibited many objects, paintings, other kinds of things— things related to Benjamin Franklin’s electronic experiments, portraits that were connected to Boston, the Boston area. In 1958, they had to give up this hall. It was too expensive to maintain. And of course, Prudential Insurance wanted to build its tower so there was a convergence there in really the center of Boston. So it had a lot of objects to dispense to other museums and to individuals. Portraits were given back to the families of the heirs of the people in the portraits and other things went to museums.
Steve Schindler: Right. Can you just give our listeners a sense of how large is this work? Does it fill a room or is it a shelf—
Tom Kline: It’s life size, so it would fill a small room. It would get your attention if it were in a small room. It was displayed at the Chrysler Museum very prominently.
Katie Wilson-Milne: Yeah, and we’ll get to how it gets to Chrysler and why they’re involved. But it is kind of peculiar, Tom, that this mechanics association ends up having all of these art objects that they display. What’s the connection to what MCMA does? I mean, why does it have this type of collection prior to the sale of this building in the 50s?
Tom Kline: Well, I think the collection was intended to display objects related to mechanical trades, objects that were created in the Boston area. It may have gotten away from that initial mission to go to really artistic objects, but they had a hall and I guess we would say they had a good profile back at the time. So people donated objects for exhibition in the context of Boston and Boston area and mechanical trades.
Katie Wilson-Milne: Alright, so we’re talking about this object, obviously, because some controversy occurs and that has some legal overtones and that’s why we’re talking about it on the podcast. So what happens then in the 1950s when MCMA moves out of this gargantuan grand building in downtown Boston and sells the building, right? And as you said, some of its objects get donated, some of them get returned or given away very intentionally. What happens to Wounded Indian?
Tom Kline: Well, MCMA was told at the time that the statue had been destroyed. Marble is fragile. It doesn’t burn, but it can get broken and they were told that it was destroyed beyond repair, pieces were not available. The leadership never took any steps to verify. But that’s what they were told and understood. And that came down through the ages as the history of The Wounded Indian within MCMA.
Katie Wilson-Milne: And then at some point it resurfaces, or you wouldn’t be representing them with respect to reclaiming it. So fine, they accept that it’s been damaged or destroyed, and then how does it resurface?
Tom Kline: Well, in many of these theft cases, I dare say most of them, you don’t really know what happens right away. It appears that the object was up for sale in the Boston area, and it went to a fellow named James Ricau, who was a little bit shady, was known to deal in objects that had no provenance, was quoted as promoting forging of art. And it went into his collection in New York, which he mostly kept to himself, may have exhibited. That was sometime before 1967. It’s understood to have been in his collection about nine years after it was removed from the exhibition hall.
Steve Schindler: Right, and there’s no information about how it was removed or at this point or who removed it. The story that you told was that it was just reported to have been broken or destroyed, but we don’t know how it got from the museum to this owner, right?
Tom Kline: No information. Thieves in the night, who knows? Movers working for their own nickel? We just don’t know.
Steve Schindler: Right. And how was it discovered?
Tom Kline: Well, in 1986 Ricau donated and sold his collection to the Chrysler Museum in Norfolk, Virginia, which has a number of objects from his collection. And in 1999, so really quite a few years later, MCMA was told that the object was on view at the Chrysler Museum, even though they thought it had been destroyed.
Steve Schindler: And tell us just a little bit about the Chrysler Museum, because some of our listeners may not have heard of it. What’s behind it and what kind of work do they have in their collection?
Tom Kline: It’s an excellent museum. I think it’s the collection of Walter Chrysler, maybe.
Steve Schindler: Of the car, Chrysler. Okay.
Tom Kline: Yeah, and it’s owned by the city of Norfolk, which of course becomes part of the story, because they’re represented by the city attorney. And the decision-making is in some fashion by its board and city government. It’s really an excellent museum, very popular there in Norfolk, Virginia.
Steve Schindler: How did it come to light to your client that the work that they thought was destroyed was in another museum in Norfolk, Virginia?
Tom Kline: There was a discussion somehow at the MCMA about the statue having been destroyed. And this researcher said, it’s not destroyed, I saw it at the Chrysler Museum. So Chrysler was first approached by MCMA around that time.
Katie Wilson-Milne: When was that?
Tom Kline: It was 1999.
Steve Schindler: 24 years ago now.
Tom Kline: Yeah, yeah, a painful fact. And MCMA approached the Chrysler. The Chrysler said, “no, no, you’re wrong. We have the original, you must have had a copy or a model or something.” So MCMA went off and did some research, and ultimately what it had was the same statute that the Chrysler had. So they came to me in about 2010 and said would I help them? I have good connections with the Museum of Fine Arts in Boston, and a curator there referred them to me, and this is what I do, so—
Steve Schindler: We won’t focus on the fact that that was 13 years ago. A slow moving negotiation.
Tom Kline: Yeah, I must have that date wrong.
Katie Wilson-Milne: But all to say that, at least for MCMA, it’s been since 1999. So maybe it would be helpful before we go on in the story of how this gets negotiated, to understand like what legal claims were underlying MCMA’s position, if any. I mean, I’m not aware that there were legal claims formally asserted, but you know, how does this work if you know you own something but you sort of let it go because you thought it was destroyed and then it surfaces, but then you wait 10 years after it surfaces to do anything about it. I mean, what’s the framework here for how something like this can be addressed?
Tom Kline: Well, that’s terrific for us to think about. Thank you for that question. The fundamental principle in any of these cases, whether it’s Nazi looting or cultural property, or even Native American objects or contemporary or relatively contemporary theft, is that a thief cannot acquire title. So the first question is, who owned it? And the second question is, was it stolen? And if you can resolve that, you still have to deal with issues related to the passage of time. but issues related to the passage of time are secondary, and they always wait on us through this matter, but museums in the United States have reached a consensus that they don’t want to have stolen objects in their collection, which again, corresponds to American law that a thief doesn’t pass title.
Steve Schindler: Which is different than say, European countries, where after the passage of time, title can in fact and does pass under certain circumstances.
Tom Kline: Right, there are several mechanisms in European law, something that we would think of as adverse possession, where something is notoriously and openly displayed, or a good faith purchase of an object coupled often with a passage of time. So there are doctrines in Europe where title can be created for a good faith purchaser or good faith possessor, but we don’t have those doctrines in the United States.
Katie Wilson-Milne: Not for stolen work.
Tom Kline: Not for stolen work. That’s right.
Katie Wilson-Milne: Other types of work we do.
Tom Kline: Yes, we have a crazy quilt of laws governing ownership of property. Hard to summarize in one podcast, especially without putting people to sleep.
Katie Wilson-Milne: No. We’ll stick with the stolen concept.
Tom Kline: Yes, the stolen concept.
Steve Schindler: Let me just ask one question on this. This has come up before, actually, I think the last time you were on talking about another alleged theft of cultural property. Who has the burden here of proving that the object was stolen? Because we have a situation where something happened many years ago, and there seems to be no actual record of a theft. Obviously there was no police report filed, because if, you know, according to your client, they believe that the object was destroyed. So of course, there’d be no reason to file a police report. Whose burden is it?
Tom Kline: Well, you’ve put your finger on a very difficult and somewhat squishy subject, Steve.
Steve Schindler: I like this.
Tom Kline: Yes, we all do. So the original possessor who makes a claim has the burden of proving that they at one time had ownership of the object, that it was theirs. And then the question of who has the burden to prove whether or not it was stolen is a question of state law. And if we look at New York law, the case that we discussed some time ago, the stargazer litigation in the United States, I would have to say the law is somewhat confused. Normally a claimant has to make out all the elements of the claim. And Katie, going back to your question, the claim is generally called replevin, although state laws vary, and the elements include that you were the owner and that it was really lost without possession. What we commonly think of as theft is really loss without possession— I’m sorry, loss without permission. And in New York, in theory, the current possessor of an object has to show that they acquired it lawfully.
In other words, that it was not stolen. And it’s a difficult burden to carry. And I think even within the stargazer opinions, there’s some question about what the best description of that is. But let’s say that whether there’s a theft is a fair grounds for dispute, and it was disputed in this case because there’s no direct evidence.
Katie Wilson-Milne: So back to this case, which of course was not in New York. I guess it was between Massachusetts and Virginia. I guess, I mean, take us through sort of what the process was that MCMA underwent to get this back. Was there a formal legal process? Were there formal legal claims, or was it more, as you were saying that, you know, museums confronted with evidence that they possess stolen objects will give them back without quibbling over the details, the legal details necessarily?
Tom Kline: Well, I guess we would have to call this a hybrid situation, Katie. There was no lawsuit filed, but there was a claim. Definitely the MCMA through my law firm at the time, Cultural Heritage Partners, made a claim on the museum. First they wanted to know information, and the information process is what took the six or seven years, getting documents about the history of the Ricau collection and this particular object. And it ultimately turned out that the museum had realized as early as 1991 that it had problems, and its curators started to research the object. Ricau folks said they got that statue from a particular gallery in Boston, but that gallery denied having any connection to it. They went to a few other places in Boston, but they didn’t go to MCMA. And they were worried, because under museum ethical standards, museums should know where their objects come from and that the person that’s transferring it to them has lawful title.
Katie Wilson-Milne: And remind me, Tom, so Walter Chrysler bought the statue from James Ricau, right? And then Walter donated it to the museum?
Tom Kline: I don’t think so. I think he was out of the picture at that time and that it was the museum that acquired the statue and other objects directly from the Ricau collection. And in fact, I think they have a wing devoted to Ricau objects.
Katie Wilson-Milne: So were they donated or did the museum purchase the object?
Tom Kline: I think it was some kind of a hybrid transaction where maybe it was purchased for less than full value and part of the value was a donation. I’m not 100% sure of that.
Steve Schindler: Do we have any sense of the value of this statute?
Tom Kline: It’s never been appraised, especially not recently. And it’s not something you’d want to have in your living room, so there’s probably a limited market for it. But we operated on the assumption that it was more than a million dollars.
Katie Wilson-Milne: So back to this process. So the museum starts to look into its own ownership of this statue and comes up short when it realizes that Ricau’s story about his acquisition isn’t an adding up. What’s the timeframe for that? And how does the museum then get back to MCMA? I mean, we know this took decades, so I guess one part of why this is so interesting is why on earth did this take so long, and what were the different phases?
Tom Kline: Well, as I said, I think my original date was wrong. It took about six or seven years after I became involved. And at that time, the museum had documents in its file that indicated that there were gaps in the provenance and that they weren’t sure that Ricau had good title. I do want to emphasize for our listeners that I was representing one party in this dispute, and when I discuss disputes that I’ve been involved in, I still try to be somewhat neutral in the explanation. And we weren’t necessarily treated very well by the Chrysler, especially at first, but since they ultimately agreed to an amicable settlement, I think they’re entitled to some respect for the way they handled this dispute.
Steve Schindler: Right, because if you read some of the press on it and prior to the ultimate resolution, there seemed to have been a certain amount of acrimony between the parties and that may have exacerbated the problem in what was there.
Tom Kline: Yes, it was acrimonious and unfortunately I was the target of some of the acrimony. But my former partner Greg Werkheiser picked up some of the slack. We had a series of meetings and communications with the Chrysler and with their lawyer. The first meeting was during the Covid period, and I tried to stress museum ethical guidelines and was rebuffed on that, even though there was information missing from the Chrysler’s website about the history of the object. We made a series of proposals and discussions, and ultimately there was another meeting with Greg Werkheiser, more documents were revealed, and at that point, much later after I had joined this firm, Schindler Cohen, the Chrysler did reveal these documents showing its knowledge of the ownership issues, the provenance issues, the history of not having full information, but there still was no settlement at that point. So we did approach the media to see if there was interest in the subject, and we did approach law enforcement, which investigated on its own. A very excellent article in The Washington Post by Greg Schneider revealed this dispute, followed up by some other articles, one by David D’Arcy, a well-known journalist who writes for The Art Newspaper. And we did get the attention of the highly-regarded FBI art crime team, which investigated. And the combination convinced the Chrysler Museum, I think, that we were not going away, that there was a substantial problem here, that they were at risk of not following museum ethical guidelines, to say nothing of legal guidelines, and ultimately they agreed to return the piece to MCMA.
Katie Wilson-Milne: Tom, what was the museum’s reasoning originally for not returning it? Once they realized that they didn’t have solid provenance, what was their basis for telling you they didn’t find it urgent to deal with it?
Tom Kline: That’s a terrific question, Katie, and I think anyone who researches the articles about the case will see that they had a number of positions. They first said MCMA had a copy and not the original sculpture. We went to them, we convinced them it was the same object, and they asked, well, why was there no police report or insurance report filed? Why is there so little documentation of the theft? What has MCMA done since?
And then at one point they went back to the two sculptures theory and then they went to a theory that, well, MCMA must have sold it and made money from it, and they only want it now so they can sell it. So it was the kind of objects you’d make if you don’t have a strong position yourself and you want to attack the claimant. But ultimately, when they corrected their website, they showed MCMA in the provenance and MCMA’s donor and the previous owner even in the provenance. So it was clear we were talking about the same sculpture.
Katie Wilson-Milne: So you said you were only involved for six years— which, only six years— quite a long time for this discussion to have transpired, but MCMA was dealing with this since 1999. So what was going on between 1999 and, say, when you got involved, Tom, and things “sped up?”
Tom Kline: My understanding is that MCMA was trying to investigate this “two sculptures theory,” during that time period.
Steve Schindler: I see. The sort of 15-year investigation of the two sculptures, which I assume never panned out. Everyone kind of agrees that that’s not the case.
Tom Kline: Right.
Steve Schindler: We’ve seen these cases with museums who are approached to return items, whether it’s Nazi-looted art, cultural property who resist and sometimes resist mightily. And I’m never sure whether it’s because sometimes the value of the object, sometimes when you have nonprofit museums here it implicates donors, large-scale donors who’ve made contributions to the museum. But there are many instances where museums, rather than taking the position that, “oh, this is— ethically we’re obligated to give this back” actually go into court and challenge the claims. I’m just wondering if the motivation here was just pride, or— doesn’t seem like it was probably money, because no one has really—seems like they thought about selling this object.
Tom Kline: I don’t really have a good answer for that question. We don’t have a ministry of culture. We only have a couple of federal museums. We have two museum associations that set very, very general policies for museums. The Association of Art Museum Directors recently issued some guidance on antiquities, and they didn’t even want to call it guidelines, because that would be too constricting. They just had a few thoughts they wanted to pass on as guidance. So, no one really rules museums except their board of directors, which is the owner of the museums. And so they’re all on their own for their decision making. And with such an atomized approach, each museum is free to do pretty much what it wants. Very, very rarely is a museum held accountable by a state attorney general. I mean, we saw a case in Oklahoma where a university museum was challenged, and the student body rose up and said, “no, it’s a Holocaust case, you should give the object back.” So public exposure is the main control that we see from museums.
Katie Wilson-Milne: Well, and we’re also seeing now a pretty big uptick in criminal seizures. So prosecutors in Department of Homeland Security, the US Attorney’s Office, Manhattan D.A, taking these matters into their own hands and going into museums and seizing what they consider stolen objects. So I do think there are checks and balances around the operation of museums that are not just sort of ethical guidelines or internal policies. But I also think those ethical guidelines have become more robust. And I think with some important exceptions where museums are not willing to entertain a question about stolen property, I think most museums, either out of shame or fear of public exposure or its sense of duty, are much more likely now to take claims that they own stolen property seriously and to conduct internal investigations. And where there are disputes, they are more likely to be genuine disputes about whether an object was stolen or not. And there are a lot of facts that go in to whether an object was stolen and I think sometimes legitimate basis for disagreement. So I think it, at least I feel like maybe more credit is due to museums now, having to deal with these issues than simply saying, I’m not interested and I’m keeping property whether it’s stolen or not.
Tom Kline: Well, I agree with all that, Katie. I think it’s very well said. And I think there is a role for law enforcement in extreme cases. And the point that I would make in addition to what you said is that museum ethical guidelines are not the law. They’re not self-enforcing. On the other hand, they are intended to embody best practices. So museums that depart from them do so at their own risk, because as we all know, companies and institutions that follow industry best practices get the benefit of the business judgment rule. They don’t get second guessed on their judgment calls. And museums that make it up as they go along are at greater risk of having the board challenged or decisions challenged.
Katie Wilson-Milne: Yeah. I mean, and to your point, it is hard to know who would be bringing those challenges, but it’s an asymmetry that’s always existed, because the museums have all the information, and of course, why would they want to share information that makes it clear they have stolen property? But I do feel like there are fewer and fewer arguments that are not truly a dispute about the merits, and those do continue. In this case, Tom, was the Chrysler Museum’s motivation, do you think, that they didn’t want to have to deal with claims of stolen property in their collection or that they had a genuine belief at some point that this object was not stolen, either because it was not the same object or it was the same object and the MCMA had willingly disposed of it?
Tom Kline: I don’t know the real answer to that. They’d had the object since 1986, and I think there’s a certain inertia in believing, well, we’ve had it a long time, it’s ours, it’s in our collection. And who are these upstarts from Boston who don’t have any documents and don’t really have the ability to explain what happened to this object and what happened over all the intervening years. So I think it was kind of a knee-jerk, least common denominator approach. And when we pressed, they were hard pressed to come up with good explanations for why their website information was incomplete, why they hadn’t provided us the underlying documents for most of the six or seven years. So ultimately good decision-making came into play. But I think I want to say a microcosm, but maybe it was a macrocosm of decision-making in a defensive way for the six or seven years that I was involved.
Steve Schindler: Right, and it seems like also this is a case, and we see this in other contexts as well, where you present a claim, it does seem like this was probably an object that was stolen, but when we started the discussion, we talked about burdens of proof and who can prove that the object was stolen. And we didn’t really even talk about statute of limitations and latches which factor into these cases.
So if the museum was really just sort of looking at this in a very straightforward, you know, “are we legally in possession of this or not,” they might come to a conclusion that suggests that they very well might be, or at least as a matter of law, they are. But it seems like the decision-making here is somewhere in between that and just this ethical sort of idea that we should not have something in our collection with spotty provenance and questions about the legitimacy.
Tom Kline: That’s absolutely right. This was an exercise in decision making by the Chrysler and the city of Norfolk, Virginia. And they could have filed a declaratory judgment lawsuit in their home court. They certainly had the legal support. They did hire a law firm towards the end, and I can guess that the law firm advised them of the strengths and weaknesses of bringing that kind of case. Had it gone to litigation, it would’ve been quite a challenge, because as we all know, litigation in the United States is very expensive and carries risks with it.
Steve Schindler: And it can take a long time, even longer than the negotiation
Katie Wilson-Milne: Even longer than the 20 years.
Tom Kline: Yes. Yes, we’ve seen that particularly with Holocaust-related cases, that they’ve gone on for more than 10 years. They’ve gone up to the Court of Appeals two or three times.
Katie Wilson-Milne: Tom, I mean, the reason your client, MCMA, didn’t just sue in the beginning is a), why do that if you can work it out amicably, but also it is an expense to be avoided if possible. But I mean, you could have filed a lawsuit, right, for your clients if this had not turned itself around.
Tom Kline: In the darkest days, that’s something that we considered after much delay and lack of a good answer from the Chrysler. But you’re absolutely right. I think disputes should not go to court if they don’t have to. And this one didn’t have to. We were still in discussions, we continued in discussions, and ultimately we were able to work it out.
Katie Wilson-Milne: I think you were— before we sort of got off on a tangent, what you were saying about resorting to the press and also going to the FBI raises a really important point, especially with cases in the art world that have ethical components, which is that sometimes they don’t get worked out legally, and it’s either because it’s not the proper forum for them to get worked out, or there are practical considerations that make that impossible, or there’s an obstinate party, or whatever. And that sometimes these non-legal solutions are actually more effective, which is getting the public attention and having a PR aspect to it, and also bringing in another party like, you know, either a prosecutor or the FBI to take a look. And that obviously worked here, but I think sometimes we forget as lawyers or we don’t talk in this podcast enough about how there’s always a parallel track, right? Even when there’s a litigation, there’s a parallel track of public opinion in a lot of cases and how much that can matter. So it sounds like, Tom, that’s really what led to a resolution here. I mean, would there have been a resolution but for that kind of press attention and getting the FBI involved?
Tom Kline: It’s very hard to tell. Disputes often have a personal aspect where change of leadership at one organization or the other might have changed the direction. I do think the focus on litigation skews the discussion. There are tens and twenties and dozens of claims that are worked out that we never hear about, because the solutions and settlements are confidential. But I’m told now Sotheby’s and Christie’s is each up to 300 or so settlements of Holocaust-related claims, and I’m sure museums are doing the same thing. We read about when an object is returned but often we don’t hear about full settlements. So it’s important to remember that this is a noteworthy dispute, because the object is so remarkable and the organizations are significant. The dispute was protracted and led to agreement. So I think there are a lot of lessons here one can learn.
Katie Wilson-Milne: And what was the final agreement?
Tom Kline: The final agreement was that the object was returned to Massachusetts Charitable Mechanic Association. It’s been shipped to Boston, sitting in a shipper’s warehouse right now, and we’re trying to find a museum in the Boston area that’s willing to take it. Museum exhibitions normally take years to work out. And as I mentioned at the outset, this is an object that has some very sensitive aspects, let’s say, about the way Native Americans are portrayed. So it’s hard to find the right context for it, but I’m sure given the quality of the object and it’s historical cultural significance, that something will be found.
Katie Wilson-Milne: That raises the question, Tom, why MCMA wanted it back so much? I mean, it was on public display, so that’s great. The public could see it. It was in a museum of repute. Why all the effort to get it back when MCMA didn’t have a place to show it? They’re not a museum, and you said they’re not planning to sell it, which would be the obvious assumption, I think, that that’s why they wanted it back. But what was the reasoning to take it out of a museum if it’s just going to go back into one and not the MCMA itself?
Tom Kline: I’m hesitant to get too deep into the details of the negotiation, Katie, but the original concept was that it would remain at the Chrysler Museum and MCMA would be recognized and compensated in some way. When those negotiations were frustrated or reached no agreement, MCMA did have kind of a human response and had become upset about the situation.
And went back to, or went forward, I should say, to a position of saying, “well, if we’re not going to get recognition in Norfolk, then we want the object here. It was made in the Boston area, it was donated to us with the idea that it would be publicly exhibited. We want it to be exhibited in the Boston area.” But that was not necessarily the initial motivation.
Katie Wilson-Milne: So I guess we’ll have to wait and see what happens to it.
Tom Kline: Yes, yes. And if you want to see it, as I say, it’s very easy to Google Wounded Indian and see multiple views of it. Very dramatic statue.
Katie Wilson-Milne: And we’ll certainly link to some articles and images in our show notes so our readers can see that there too.
Steve Schindler: So, Tom, has there been any discussions with any sort of indigenous groups about sort of contextualizing this or how they would want this statute to be to displayed?
Tom Kline: Yeah, that’s been one of the approaches is to try to see if there’s a Native American museum or some other context or some tribe that would sponsor an exhibition. But— probably comes as no surprise that tribes have as many divisions and disputes as anybody else. And MCMA has not been able to get a partner in that effort, which would be a great idea.
Katie Wilson-Milne: Thank you so much, Tom.
Steve Schindler: Yeah, thanks, Tom. That was good.
Tom Kline: Well, thanks to the two of you.
Steve Schindler: And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson, and finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.
Steve Schindler: And I’m Steve Schindler, bringing you the Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.