U. of Chicago and Museums Win Key Ruling in Legal Battle Over Iranian Antiquities

March 29, 2011

Chicago's Field Museum of Natural History and the University of Chicago's Oriental Institute won a victory on Tuesday in their efforts to maintain possession of thousands of ancient Iranian artifacts. In a ruling, the U.S. Court of Appeals for the Seventh Circuit reversed a lower court's order that might have handed the artifacts over to several American victims of a 1997 terrorist bombing in Jerusalem.

Those victims won a $90-million judgment in 2003 against the government of Iran, which is believed to have financed and trained the terrorists who carried out the Jerusalem bombing. But the victims and their families have struggled to collect any of that judgment from Iran, and their lawyers have sought instead to seize purported Iranian assets in the United States, including antiquities held in American museums. Those legal efforts have been condemned by some scholars as a dangerous politicization of the world's archaeological heritage.

In Tuesday's ruling, a three-judge panel of the Seventh Circuit ruled that the lower court had misinterpreted the Foreign Sovereign Immunities Act of 1976, which generally protects the property of foreign governments in the United States. The plaintiffs have asserted that the antiquities in Chicago are exempt from that immunity because of a provision in the 1976 law that excludes property "used for a commercial activity."

The lower court had ruled that the plaintiff's argument on that point must win by default because Iran had not come forward to assert its immunity under the 1976 law. But the Seventh Circuit, like other appellate courts in similar recent cases, ruled that the 1976 law requires courts to decide for themselves which foreign immunities apply to each case, whether or not a foreign government has explicitly demanded those immunities. (Complicating the case, Iran did eventually come forward to assert its immunity.)

The case will now return to the lower court for further argument. Among the remaining questions is whether the antiquities might be seized under the Terrorism Risk Insurance Act of 2002.

Derek Fincham, a professor at the South Texas College of Law who maintains the Illicit Cultural Property blog, said in an e-mail message to The Chronicle that Tuesday's decision was a significant victory for the museums.

The antiquities, he noted, "are temporary loans which allow researchers to study these objects even while foreign relations with Iran have been rocky. There is a certain expectation that the advancement of our understanding of these ancient cultures should proceed even though these nations or individuals may have serious disagreements. I imagine museums and universities are breathing a sigh of relief that they will likely not be stuck in the middle of a foreign nation and a domestic plaintiff in the near future."

Alicia M. Hilton, a lawyer and consultant who wrote a law-review article about the case in 2008, said in an interview that she expected the case to wind on for several years.

"It's going to be a long road," she said. "I think it must be extremely frustrating both for the plaintiffs and for the museums. Museums are concerned about their ability to get collections on loan from foreign governments. At the same time, I feel a lot of sympathy for these plaintiffs. I'm sure they would rather have gone after other kinds of Iranian property. This wouldn't have come up if Iran had dealt with the case in a different manner."

It would be tragic, Ms. Hilton said, if the Chicago institutions' collections were broken up because of the case. "The Persepolis tablets, when you get down to it, are pieces of dry earth and clay," she said. "They won't mean nearly as much if they're split up at auction. The value is what they tell us about a lost civilization."