The Persepolis Tablets: Terror Victims Target Ancient Persian Artifacts

By Alicia M. Hilton

Rubin v. The Islamic Republic of Iran

The University of Chicago and the Islamic Republic of Iran are unlikely allies in a suit brought by American victims of a Hamas terrorist attack. Litigation in the federal district court in Chicago may decide the fate of priceless Persian artifacts.

On September 4, 1997, three Hamas suicide bombers killed five people and injured nearly 200 others. Americans injured during those terrorist bombings and their family members commenced suit against Iran, its Ministry of Information and Security, and certain Iranian officials in the U.S. District Court for the District of Columbia. The defendants refused to appear and were defaulted by the district court. Following a four-day evidentiary hearing in which the plaintiffs presented extensive evidence that Iran had sponsored and armed the Hamas terrorist organization, the district court held that the plaintiffs had produced “clear and convincing evidence” that the defendants were liable for plaintiffs’ personal injuries. The court granted a $423.5 million default judgment for the plaintiffs, including $300 million in punitive damages.

The default judgment was only the beginning of the legal battle. As plaintiffs’ attorney David J. Strachman explains, “Iran is a very rich country but with few to no assets in the United States. Most were liquidated decades ago; the rest is generally diplomatic property immune under the Vienna Accords.” The default judgment remains unsatisfied, and to date, the only Iranian property recovered by the plaintiffs is a Texas residence that the former Shah of Iran had purchased for his son. Now the terrorist victims are going after bigger prizes, archaeological treasures held at the University of Chicago’s Oriental Institute.

The story of these artifacts begins more than 2,500 years ago when Darius I ruled the Persian Empire. Between 509 and 494 BC, thousands of clay tablets were inscribed with cuneiform writing and pictorial images to document movements of animals, workers, and travelers throughout the Persian Empire. The tablets were left undisturbed among the ruins of the Persian capital city of Persepolis until they were discovered in 1933 by a team of University of Chicago archaeologists, who recovered more than 15,000 tablets and thousands of additional tablet fragments. The archaeologists transported their discovery back to the Oriental Institute at the University of Chicago.

Analysis of the Persepolis tablets has continued over the past 70 years. Before they could be translated, each of the thousands of fragile tablets and fragments had to be cleaned. In 1948, a group of 179 complete tablets were returned to Iran, and 37,000 fragments followed in 1951. In 2004, an additional 300 tablets were returned to Iran. The University of Chicago intends to return all of the tablets when their analysis is complete so that all of them may be kept together in a single, permanent collection in Iran.

Press coverage of the University of Chicago’s return of the 300 tablets to Iran alerted plaintiffs to the collections of the Oriental Institute as a potential source of recovery. In May 2004, plaintiffs served on the University of Chicago a citation to discover assets pursuant to Rule 69 of the Federal Rules of Civil Procedure. Iran again refused to appear in the federal court to defend the Persepolis tablets against attachment by the plaintiffs. Instead, the University of Chicago asserted that the Persepolis tablets were immune from attachment because they were protected under the Foreign Sovereign Immunity Act (FSIA).

Under the FSIA, 28 U.S.C. § 1602 et seq., property within the United States owned by a foreign government is usually immune from attachment. In this case, the plaintiffs rely upon an exception created by 28 U.S.C. Section 1610(a), which excludes from the protection of the FSIA property used for a commercial activity. Plaintiffs argue that the University of Chicago’s Oriental Institute has used the Persepolis tablets in commercial activity and that the University’s acts are attributable to Iran because the University has acted as Iran’s agent as the custodian of the artifacts.

The plaintiffs won an initial victory in the litigation in June 2006, when the district court issued a decision rejecting the University of Chicago’s attempt to assert Iran’s sovereign immunity. The district court held that the University of Chicago did not have standing to raise the FSIA and that only Iran could plead sovereign immunity as an affirmative defense.

Following this ruling, Iran finally entered an appearance in the action in August 2006 and then filed a motion for summary judgment asserting sovereign immunity under the FSIA. In March 2007, the plaintiffs won another victory against Iran when Magistrate Judge Ashman stayed the summary judgment motion to allow the plaintiffs time to complete discovery to support their claim that the Persepolis tablets are subject to the commercial activity exception under the FSIA. The court also granted the plaintiffs further discovery concerning two additional collections of artifacts that the plaintiffs now seek to attach: the Chogha Mish collection at the Oriental Institute and the Herzfeld collection at Chicago’s Field Museum. The fate of the Persepolis tablets now appears to turn upon whether the plaintiffs can prove that the University of Chicago has acted as Iran’s agent and has used the Persepolis tablets in commercial activities.

As the plaintiffs apparently move closer to success in their litigation against Iran and expand their search for other Persian antiquities, the plaintiffs’ litigation strategy presents daunting challenges for the Oriental Institute and other museums in the United States. No one would dispute the plaintiffs’ right to receive compensation for their injuries, and as the victims of state-sponsored terrorism, the plaintiffs have presented claims that demand justice. However, some have seen the plaintiffs’ efforts as a direct attack on the museums’ mission to preserve and study these rare artifacts. An auction of the Persepolis tablets by the plaintiffs could scatter this priceless historical record among numerous private collectors, denying future generations of scholars the opportunity to study the tablets as a single collection. Foreign nations might also cease to lend art treasures to American museums for study or temporary exhibits out of fear that aggressive plaintiffs might seize the opportunity to execute unsatisfied judgments.

The current diplomatic tensions with Iran only further complicate the uncertain fate of the Persepolis tablets. Western scholars do not have any assurance of future access to antiquities that are returned to Iran. Nor is it clear that Iran will protect the artifacts entrusted to its care. The newly discovered palace of Darius I was attacked by unidentified vandals who used bulldozers to destroy parts of the palace.

September 2007 will mark the tenth anniversary of the Jerusalem bombings by Hamas, whose victims remain uncompensated. As the plaintiffs’ suit continues to wind its way through the courts, American museums must face the growing risk that their collections may become the focus of litigation.

Alicia M. Hilton is a Visiting Professor of Law at the John Marshall Law School in Chicago where she teaches Cultural Property and Museum Law, Criminal Procedure, and Undercover Operations and Informant Management Law. Prior to practicing law, she was an FBI Special Agent and an art dealer.