CHICAGO — On September 4, 1997, Hamas terrorists bombed a mall in Jerusalem, killing five people and wounding nearly 200. In 2001, the US survivors and family members of those killed sued the Islamic Republic of Iran in federal court in Chicago, claiming the country had sponsored the bombing. In 2003, a US District Judge in Washington DC awarded the plaintiffs about $71 million in damages.
Iran never paid up, so to satisfy their judgement, the plaintiffs have been waging a legal battle for over a decade to seize Persian artifacts that are in the Oriental Institute of the University of Chicago and in the Field Museum of Natural History, also in Chicago. The Supreme Court will hear the case in the fall.
The plaintiffs have tried to seize four separate collections of artifacts: Chogha Mish, the Herzfeld Collection, a disparate group of objects we’ll call the Oriental Institute Collection, and the Persepolis Collection.
The first, the Chogha Mish, is a collection of clay seal impressions that the Iranian government lent to the Oriental Institute in the 1960s. The Institute returned the artifacts to Iran in 2015, so those are now off the table.
The Herzfeld Collection consists of about 1,200 prehistoric artifacts. The Field Museum bought it in 1945 from a German archaeologist, Ernst Herzfeld, who lived and worked in Persia from 1905 to 1936. The same year the Field Museum acquired Herzfeld’s collection, it sold a third of the artifacts to the Oriental Institute.
What we’re calling the Oriental Institute Collection is, according to a brief filed by the Field Museum, less of a formalized collection and more of a group of Persian artifacts in the Oriental Institute acquired “over several decades through division with Iran or gift from third parties.” The plaintiffs have tried to argue that the Herzfeld and Oriental Institute collections were “improperly removed” from Iran, that Herzfeld was a “notorious thief,” and that therefore, Iran should be the legal owner of these collections.
There are various academic accounts of Herzfeld gifting and selling Iranian antiquities to museums and private collectors in Europe and the US. But Matthew Stolper, director of the Persepolis Fortification Archive at the Oriental Institute, says it’s inaccurate to call Herzfeld a thief. He probably did gift artifacts to important diplomatic visitors, Stolper says, but such practices were standard for the day. He argues that Herzfeld was a dedicated archaeologist, not a career plunderer. While Herzfeld was ultimately dismissed for gifting artifacts, Stopler says that had more to do with his extremely rude and disagreeable manner, and his tendency to burn bridges with even his closest allies. Difficult questions about the trafficking of ancient artifacts during periods of war and colonization aside, Iran has repeatedly denied ownership of the artifacts in the Herzfeld Collection. In July 2016, the Seventh US Circuit Court of Appeals agreed with the museums that the Herzfeld and Oriental Institute Collections did not belong to Iran and thus were not eligible for seizure.
That leaves the Persepolis Collection, which consists of tens of thousands of tablets with cuneiform inscriptions, most of them in an ancient language called Elamite, but also in Aramaic, Greek, and Persian. They were found in the ruins of the ancient city of Persepolis in the 1930s. They belong to the National Museum of Iran, but have been on loan to the Oriental Institute since 1935 for research purposes. Nobody disputes that these items belong to Iran. This is the collection on which the survivors and families of victims of the 1997 bombing are currently focusing their efforts.
The Persepolis Collection is also hugely valuable when measuring value in historical information. The tablets contain 20 years of administrative records about the distribution of fruit, livestock, grain, and other foods.
“Similarly to if you had thousands of drivers licenses and grocery store receipts, you get this immensely rich texture of information,” Stolper says. “This collection is the largest, richest source of new information on the Persian Empire anywhere. It tells us about political geography, languages, infrastructure, and institutions. They give us a transect of society from the very top to the very bottom in a way that literary narrative sources don’t.”
The Seventh Circuit ruled the Persepolis Collection immune from seizure because of the Foreign Sovereign Immunities Act (FSIA), which dictates what assets are eligible for seizure to satisfy judgements against foreign governments. According to the FSIA, assets must fall under “commercial use” to be eligible for seizure. It’s tenuous — and some would argue tendentious — to claim that these artifacts fall under this category while in use by a third party museum and research institution. The Seventh Circuit ruled that the objects had to be in commercial use by the foreign state itself for the rule to apply.
In their brief to the Supreme Court, the plaintiffs contest the Seventh Circuit Court’s decision by claiming that the FSIA merely states that objects must be used for commercial purposes in the United States, and not necessarily by the foreign state itself. They also invoke another exception to the FSIA clause, which they say allows victims of terrorism to seize assets of foreign state sponsors of terrorism regardless of whether they are connected to commercial activity in the US.
In its July 2016 ruling, the Seventh US Circuit Court of Appeals disagreed with the plaintiffs’ interpretation of the terrorism exception, but in another decision, Bennett v. Islamic Republic of Iran, the Ninth US Circuit Court of Appeals upheld the clause against what they called “creative arguments.” The Supreme Court’s decision will end what’s called a “circuit split” by defining the scope of these immunities according to the terrorism exception clause.
The semantics upon which the case will be decided may be dry, but the implications for museums could be huge.
“It’s a very slippery and dangerous slope,” says Charles Cronin, a lecturer at the University of Southern California’s Gould School of Law and expert in cultural property law. If the case is decided for the plaintiffs, he says, anybody claiming to be harmed or terrorized by a terrorist group or regime could go after artifacts in other US museums. “You can extrapolate from this case and say, ‘My goodness! This could become quite widespread!’”
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