In the 1981 film “Raiders of the Lost Ark,” Professor of Archeology Indiana Jones has the following conversation with “Marcus,” representative of an unidentified American museum, following Professor Jones’s abortive expedition into Central America:
“I had it, Marcus. I had it in my hand. Want to hear about it?”
“Not at all. I’m sure everything you do for the museum conforms to the international treaties on antiquities.”
“It’s beautiful, Marcus. I can get it. I’ve got it all figured out. There’s only one place he can sell it… Marakesh. I need $2000.”
Dr. Jones opens a drawer in his lab table and extracts a cloth containing several small statuettes.
“Look,” he urges them on Marcus. “They’re good pieces, Marcus,” he says. “They’re worth at least a ticket to Marakesh.”
“Yes,” Marcus replies, “the museum will buy them as usual. No questions asked.” Pocketing them in his suit coat, he smiles wryly. “Yes, they are nice.”
“Raiders” is set in the mid-1930s. Fast forward some 60 years. On September 4, 1997, five American citizens were injured in a triple suicide bombing in a jammed pedestrian mall in Jerusalem. Joined by four family members claiming emotional harm, in 2001 these terror victims sued Iran, alleging that the perp --- Hamas --- had received training and support from the nation formerly known as Persia. Iran declined to defend itself. Six months after the suit was started, a U.S. district judge entered a default judgment in favor of the plaintiffs for $71.5 million in actual damages, plus an additional $37.5 million in punishment damages.
Armed with this $109 million final judgment and faced with a defendant that is essentially judgment-proof in the U.S., Jenny Rubin and eight co-plaintiffs, who like her had actually been injured in the blast, and their counsels began casting about for someone who could make good on the massive award. Their initial target was a fund belonging to the former Iranian embassy in Washington, safeguarded since its closing by the U.S. Treasury Department. The federal government resisted. The plaintiffs prevailed, but subsequently discovered to their chagrin that an earlier judgment-creditor possessed a superior lien on the money.
Nothing if not persistent, the plaintiffs next went after three Iranian bank accounts in the Bank of New York. The district judge awarded ownership to the Iranian banks involved in the action. Last of these initial attempts to make good their judgment was an attachment action against a piece of Iranian property near Lubbock, Texas. This was a home owned and occupied by an Iranian prince while he received fighter jet training at Reese Air Force Base. This time the plaintiffs hit pay dirt, if only a modest vein. The district judge in Amarillo issued an order, directing sale of the property on plaintiffs’ behalf. On January 4, 2004, the U.S. Marshall auctioned the property for $390,000. This was a start, but hardly a great victory.
Remarkably, where others might have quit, they came up with a list of prestigious universities and museums in Chicago, Detroit, and Boston, which they hoped to raid for their winnings. Registering their judgment in federal district courts in Illinois, Massachusetts, and Michigan, they pleaded “on information and belief” that museums located in these jurisdictions held antiquities which still belonged to Persia (aka Iran).
Concentrating their attack in the Northern District of Illinois and the District of Massachusetts, the plaintiffs’ primary targets include the Fields Museum of Natural History in Chicago, the Oriental Institute of the University of Chicago, Boston’s Museum of Fine Arts, as well as no fewer than five Harvard museums. In Massachusetts, the plaintiffs moved for an order of attachment covering “all objects… that are the property of the Islamic Republic of Iran” held in Harvard’s Arthur M. Sackler Museum, Busch-Reisinger Museum, Fogg Art Museum, Semitic Museum, and Peabody Museum of Archeology and Ethnology.
One example of an Indiana Jones model is Ernst Herzfeld.
Herzfeld was born in Celle, Province of Hanover. He studied architecture in Munich and Berlin, while also taking classes in Assyriology, ancient history and art history.
1903-05 he was assistant to Walter Andrae in the acclaimed excavations of Assur, and later traveled widely in Iraq and Iran at the beginning of the twentieth century. He surveyed and documented many historical sites in Turkey, Syria, Persia (later Iran) and most importantly in Iraq (e.g. Baghdad, Ctesiphon). At Samara he carried out the first excavations of an Islamic period site in 1911-13. After military service during World War I he was appointed full professor for "Landes- und Altertumskunde des Orients" in Berlin in 1920. This was the first professorship for Near/Middle Eastern archaeology in the world. 1923-25 he started explorations in Persia and described many of the countries´ most important ruins for the first time. In 1925 he moved to Tehran and stayed there most of the time until 1934. He was instrumental in creating a Persian law of antiquities and excavated in the Achaemenid capitals Pasargadae and Persepolis.
Forced to flee Nazi Germany in 1935, this real-life “Indiana Jones” landed at Princeton’s Institute for Advanced Study from 1936 to 1944. Just prior to Herzfeld’s departure from Berlin to escape the Third Reich’s harsh race laws, he went on an expedition on behalf of the University of Chicago. The Oriental Institute recalls it as follows:
From the time of its barbaric destruction until A.D. 1620, when its site was first identified, Persepolis lay buried under its own ruins. During the following centuries many people traveled to and described Persepolis and the ruins of its Achaemenid palaces. Many of their observations were later condensed and published by George N. Curzon in Persia and the Persian Question (London and New York, 1892). But scholarly and scientifically planned work was not undertaken until 1931. Then Ernst Herzfeld, at that time Professor of Oriental Archaeology in Berlin, was commissioned by James H. Breasted, Director of the Oriental Institute of the University of Chicago, to undertake a thorough exploration, excavation and, if possible, restoration of the remains of Persepolis. Thus, Herzfeld, in 1931 became the first field director of the Oriental Institute’s Persepolis Expeditions. In 1931–34, assisted by his architect, Fritz Krefter, he uncovered on the Persepolis Terrace the beautiful Eastern Stairway of the Apadana and the small stairs of the Council Hall. He also excavated the Harem of Xerxes. When Herzfeld left in 1934, Erich F. Schmidt took charge. He continued the large-scale excavations of the Persepolis complex and its environs until the end of 1939, when the onset of the war in Europe put an end to his archaeological work in Iran. During the last years of excavating, the University Museum in Philadelphia and the Museum of Fine Arts in Boston had joined the Oriental Institute in order to cope with the tremendous work at hand.
The statement on the institute’s web page that “Herzfeld left in 1934” is a classic understatement. In fact, his contract was cancelled amidst allegations that he had stolen some of the artifacts unearthed at Persepolis. In 1944, as he planned his retirement from Princeton, Herzfeld sold artifacts. These artifacts have since been held by private parties, and Iran has proven itself vigilant in contesting their further sales. For example, in 2005, the 85-year-old alleged-owner of a stone carving of a guardsman, a Frenchwoman named Denyse Berend, attempted to auction the piece through Christie’s in London. Madame Berend claimed to have obtained the artifact at auction in 1974 in New York City. Iran initiated a legal action in Britain to block the sale and recover the piece.
On February 1, 2007, the British judge ruled in favor of the defendant Berend. After engaging in a complicated analysis of “conflict of Laws” principles (not unlike what the Rubin judges have been required to do, as exemplified in detail above) and deciding that French law ought to apply to determine ownership, Justice Eady stated,
"Naturally, if someone has obtained an artifact knowing it to have been stolen from a particular source, or suspecting it, there may well be policy reasons for placing obstacles in the way of his acquiring a good title by secret possession. Here, by contrast, the Defendant's good faith having been conceded, she had no reason to keep the fragment she had bought under wraps, nor yet even to suspect that the then government of Iran had a claim to repossess it. There was obviously no question of dissimulation on her part or of any intention to deceive. It makes no sense that innocent purchasers of such objects should be required to go on for up to 30 years advertising the fact of their possession – just in case a third party at some stage decides to assert a claim."
To the extent that the U.S. District Courts accord any weight to Justice Eady’s decision, the Berand case doesn’t bode well for the Rubin plaintiffs, for even the Oriental Institute contends that Iran is not the sole owner of the artifacts at issue.