Raiders of the Lost Art: Property Rights and Lost Nazi Treasure

Cody S. Barnett. KLJ Staff Editor[1]

“There is thy gold, worse poison to men’s souls, doing more murder in this loathsome world, than these poor compounds that thou mayst not sell.”[2]

In 1945, Adolf Hitler’s self-proclaimed “thousand year Reich”[3] ended – 988 years prematurely. During the chaotic downfall, the Third Reich’s plundered riches disappeared throughout the shattered empire’s remnants. Historians have since remained fascinated with this lost Nazi treasure. Countless movies,[4] novels,[5] and video games[]6 have accounted for the bountiful trove. Nonetheless, seventy years later the Third Reich’s treasures still remain as elusive as Andy DuFresne.[7] Yet in August 2015, two treasure hunters in Poland potentially struck gold – Nazi gold.[8] These two men pinged what they believe a lost Nazi train beneath a mountain in Poland just outside the town of Walbrzych.[9] Should this train contain the invaluable artwork, jewelry, and gold lost over seventy years ago, who should claim legal title to the Third Reich’s plundered coffers?

Many suggest the surviving Holocaust victims possess the strongest restitutionary claim. After all, the Third Reich despicably plundered gold from concentration camp victims – even extracting gold teeth and melting them down into ingots. The World Jewish Congress has already lobbied for such a result. Robert Singer, president of the World Jewish Congress, called on intervention from the European Union in the recent discovery. “To the extent that any items now being discovered in Poland may have been stolen from Jews before they were sent to death . . . it is essential that every measure is taken to return the property to its rightful owners or their heirs.”[10] Some precedent supports this position. In 1996, the World Jewish Congress filed three separate lawsuits against Swiss banks that accumulated the Third Reich’s plunders in various vaults.[11] The banks settled the case in 1998 for $1.25 billion.[12] A similar lawsuit against the Vatican failed, however.[13] Opponents of this restitutionary approach claim the Holocaust survivors sufficiently received reimbursement from the 1998 settlement. Additionally, opponents claim the gold stolen from Jewish victims represented only a small fraction of the plundered Nazi gold.[14] The Polish government should instead disperse the gold to others harmed by the Third Reich’s war machine.

In particular, these voices advocate the idea that Allied governments should receive a portion of the Nazi treasure. After all, the Third Reich looted the vast majority of gold from these conquered countries. The European Union has already started maneuvering for such an approach. Yet one government wants the entire amount. The Kremlin has suggested Russia deserves most, if not all, the recovered gold to recompense for looted territories previously under the domain of the Soviet Union.[15] With likely no documentation demonstrating the source of the gold, however, Russia will have a hard time legally pressing this case. Furthermore, the former Soviet satellite states may want their own stake in the treasure rather than ceding the amount to the Russian government.

Finally, what about the hapless treasure hunters who potentially found this lode? These modern-day Indiana Joneses have already filed a “finder’s claim” with the local Polish government.[16] However, under Polish law the hunters would not receive the full treasure. Instead, Polish law allows the treasure seekers a ten percent claim.[17] Not too bad, considering the amount the hidden train potentially bears!

Only time will reveal who possess the strongest claim for Adolf Hitler’s lost treasure. Each contender potentially has a valid stake in the precious cargo – and, if estimates prove correct, the lost train could hold enough valuables to satisfy the various contenders. The legal systems in play could plausibly construct a restitutionary deal awarding the treasure hunters, the Holocaust victims, and the Allied governments each a respectable share. However, legal commentators believe that with such a varied pool of claimants, litigation over the discovery will stretch over a long period of time and inevitably leave some unsatisfied.[18] On the other hand, so long as the players avoid King Ferdinand’s ancient command – “Get gold humanely if possible, but at all hazards get gold!”[19] – the judiciary can certainly craft a monumental deal dispersing some amount to the constituents. Perhaps the specter of Nazi acquisition will temper the players such that the judiciary, in crafting a compromise, may heed Virgil’s warning: “To what extremes won’t you compel our hearts, you accursed lust for gold?”[20]

[1] J.D. expected May 2017.
[2] William Shakespeare, Romeo and Juliet act 5, sc. 1.
[3] Triumph of the Will (Reichsparteitag-Film 1935).
[4] See, e.g., Indiana Jones and Raiders of the Lost Ark (Lucasfilm 1981).
[5] See, e.g., James Twining, The Black Sun (2006).
[6] See, e.g., Call of Duty: World at War (Activision 2008).
[7] See The Shawshank Redemption (Castle Rock Entertainment 1994).
[8] Sarkis Zeronian, Nazi Gold Train: EU Told to Intervene to Protect Jewish Rights to Looted Treasure, Breitbart (Sept. 2, 2015), http://www.breitbart.com/london/2015/09/02/nazi-gold-train-eu-told-to-intervene-to-protect-jewish-rights-to-looted-treasure/.
[9] Id.
[10] Reuters, World Jewish Congress Says Nazi Train Treasures Must Go to Rightful Owners, The Jerusalem Post (Aug. 28, 2015), http://www.jpost.com/Breaking-News/World-Jewish-Congress-says-Nazi-train-treasures-must-go-to-rightful-owners-413600.
[11] Jeffrey Craig Mickletz, An Analysis of the $1.25 Billion Settlement Between the Swiss Banks and Holocaust Survivors and Holocaust Victims’ Heirs, 18 Dick. J. Int’l L. 199, 201 (1999).
[12] Id.
[13] Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005).
[14] See George M. Taber, Chasing Gold: The Incredible Story of How the Nazis Stole Europe’s Bullion (Pegasus Books 2014).
[15] Zeronian, supra note 8.
[16] Matthew Day, Finders Keepers: Treasure Hunters Claim They Found Nazi Ghost Train Filled With Gold – But Want 10%, National Post (Aug. 20, 2015, 3:01 PM), http://news.nationalpost.com/news/finders-keepers-two-treasure-hunters-claim-to-have-found-nazi-ghost-train-filled-with-gold-but-want-10-per-cent.
[17] Id.
[18] Zeronian, supra note 8.
[19] Taber, supra note 14.
[20] Id.