Case Review: Farmer-Paellmann v Smithsonian Inst.

July 11, 2024

Fragment of Benin Plaque (16-17th Century), National Museum of African Art, Smithsonian Institution

By Beverly Osazuwa

The ongoing campaign for the return of the Benin Bronzes has been one of the most recognized cases for the restitution of looted cultural heritage from the colonial era. In the 1897 British invasion of the Benin Kingdom (modern-day Benin City in Edo State, Nigeria),^[1] soldiers slaughtered civilians, burned their homes, stole thousands of cultural objects,^[2] and left the Palace scorched to the ground.^[3] As a result of the looting, Benin’s heritage, including valuable sculptures, casts, swords, and ivories, were auctioned and sold to museums across Europe and North America.^[4]

Now commonly known as the Benin Bronzes, these objects are heralded as a symbol of African ingenuity and Black art. The violent seizure and the fight for their return have been at the center of restitution debates for decades – the earliest recorded calls for return dating to the 1930s.^[5] In 2022, the Board of Regents to the Smithsonian Institute in Washington, D.C. voted to de-accession 29 of their 39 Benin Bronzes and officially remove the Benin Bronzes from its holdings and transfer them to Nigeria.^[6] The decision came after the formalization of a new institution-wide restitution policy in consideration of contemporary moral norms.^[7]

However, the art world was shocked by a class action lawsuit filed against the Smithsonian by Deadria Farmer-Paellmann and the Restitution Study Group, a New York-based organisation that advocates for reparations and restitutions for African-American descendants of enslaved persons. The plaintiffs sought to prevent and terminate the Institute’s plans to return the objects. Among the claims was a pending breach of fiduciary duty owed to African-American descendants of enslaved persons. The complaint alleged that as persons descending from those trafficked under the Kingdom, the return of objects to Nigeria and the Oba (King) of Benin would deny African Americans the right to their heritage, and unjustly enrich the ancestors of purported capturers. The case of Farmer-Paellmann v. Smithsonian is novel as it exists at the intersection of reparations, trusts, and the restitution of one of the most prominent and recognizable works of African art.

Facts of the Case

On October 7th, 2022, Deadria Farmer-Paellmann and Restitution Study Group, the Plaintiffs, filed a class action suit against the Smithsonian Institution, seeking a preliminary and permanent injunction to prevent the transfer of 29 Benin Bronzes to Nigeria’s National Commission for Museums and Monuments (NCMM).^[8] The Plaintiffs claimed that while the Smithsonian serves as a trust to all Americans, they should also be regarded as holding a trust for descendants of enslaved Africans—in this case, specifically, those with descendants from Nigeria who were subject to slave trafficking by the Benin Royal Court.^[9]

Beyond the artistic value, the Benin Bronzes are widely recognized for their cultural and historical value for the Edo, or Bini, people. The claimants added that the Bronzes reflect a distinct relationship between the empire, enslaved descendants, and European slave traders.^[10] It was recently discovered that the metal used in plaques and castings from the 16th to 18th century came from manilla, which was among the goods (textiles, tools, weapons, etc.) the Portuguese traded with the Edo.^[11] In the complaint, the Plaintiffs write, “[the Benin Bronzes] offer a rare opportunity for all Americans to engage with the actual currency that caused people to be kidnapped and separated them from their homelands, families, languages, and religions.”^[12]

The action thus draws us to An Act to Establish the ‘Smithsonian Institution’ for the Increase and Diffusion of Knowledge Among Men (1846) (“Act of Establishment”). The Act of Establishment created the Smithsonian upon the bequeathment of the assets by James Smithson to the United States, “for the increase and diffusion of knowledge among men.”^[13] As a trust instrumentality, it is to carry out the responsibilities of increasing and diffusing knowledge which Congress undertook upon accepting the asset, and the Board of Regents and the Secretary maintain its administration and operation of the as a trust.^[14]

The Plaintiffs claimed that the Smithsonian holds and manages the Benin Bronzes in its collection as a trust for the People of the United States—not solely the State. Additionally, they added that therein lies, or should lie, a special common law trust for United States descendants of enslaved persons specifically from Nigeria who were subject to trafficking under the Kingdom of Benin.^[15] In its intention to transfer the Bronzes, the Plaintiffs alleged that the Smithsonian was acting without statutory authority and was in anticipatory breach of trust to the People of the United States and those descended from West Africans trafficked by the Benin Royal Court. The Plaintiffs additionally claimed unjust enrichment in returning the objects valued at over $200 million back to Nigeria, arguing that it would be enriching those who benefited from the trafficking.^[16] The Plaintiffs conclude that releasing such holdings would inflict a moral and economic injury to the class parties.^[17]

Historical Background to Benin

The Trans-Atlantic Slave Trade is one of the biggest atrocities to occur in human history, with millions lost, kidnapped, and trafficked from Africa to the Americas. Farmer-Paellmann has long sought litigation for slavery reparations, notably in Farmer-Paellmann v. FleetBoston Financial Corp. (2002); In Re African-american Slave Descendants Litigation (2006). In Farmer-Paellmann v Smithsonian Inst., she makes her claim as a party whose enslaved ancestors were of Nigerian descent and traded for the manilla (metal) used for the Bronzes between the mid-16th to 19th century.^[18] She locates them in the areas of Lagos and Warri, two prominent ports.^[19]

The origin of Benin’s art-making and metal casting style is said by some to be from time immemorial, and by others as commencing in the 11th century.^[20] The Benin Kingdom was among the groups in Africa that traded with the Portuguese in the 16th century. This is recorded by historians, as well as the brass plaques that depict European travellers. Ughoton and Gwatto were Benin’s traditional seaports. The Portuguese traded items such as textile materials, tools, weapons, and manillas for pepper, ivory—and enslaved persons.^[21]

However, the history and scale of Benin’s trade is still debated. Some historians report a very limited participation in slave trading due to a prohibition of the sale of its citizens from the 16th century and an embargo on the sale of enslaved men which lasted for approximately 100 to 200 years, effectively leaving the Kingdom isolated from major political and economic changes along the coast.^[22] Others state that at its height, the kingdom supplied up to 3,000 slaves a year.^[23]

Historian James D. Graham notes that this debate arises from the imprecision in reporting by European slavers who, for example, “often defined ‘Benin’ as the entire coastal area between ‘Guinea’ and ‘Angola’ during the seventeenth century” and lacked distinction between independent communities and their operation of slaving, like the Kingdom of Warri/the Itsekiri versus Benin proper.^[24] Scholars such as Peter Ekeh also refer to histories of coercion that affected African kingdoms during the time that may inform understandings of trade relations during the period.^[25]

Even so, while the historical record is unclear, what is gained is a wider consideration of the layered histories and experiences that inform West African art.

Standing & Dismissal

Concerning the Plaintiffs’ initial filing for an emergency temporary restraining order, on October 14th, 2022, the United States District Court for the District of Columbia denied the motion for lack of standing and no valid action to challenge the transfer.

The Plaintiffs argued their standing by claiming a personal stake in accessing the Bronzes based on Farmer-Paellmann’s descendancy from individuals sold by the Kingdom in exchange for the metal used to create the Bronzes.^[26] The court stated, that “even if Plaintiffs could establish that ancestral link to the Bronzes—which they have not done on this record—such an attenuated connection would not give rise to the type of “concrete and particularised” injury necessary for standing.”^[27]

Further, the Court determined that even if standing were present, the Smithsonian’s actions are not subject to judicial review under the Administrative Procedure Act, and under 20 U.S.C. § 80m(a)(2) (Powers of Board), an Institution’s Board is empowered to make transfers of property in its collection.^[28]

Likewise, the Court held that the transfer did not breach the trust relationship because “only the United States holds legal title to the Smithsonian collection as its trustee.”^[29] While the Institution may be treated as a federal agency in some respects, it is more so regarded as among the “instrumentalities wholly owned by the United States.”^[30] Government instrumentalities are affiliated with the State but have a separate existence.^[31] The Smithsonian is treated as neither an agency nor an authority of the Government. However, it does adopt certain immunities, including from lawsuits unless authorized by Congress.^[32]

On the cause for unjust enrichment, the Court held that the claim did not fit the nature of unjust enrichment, for the Plaintiffs were not seeking compensation for a benefit received by the Smithsonian.^[33] Additionally, as a matter of injury, they have not shown that irreparable harm would occur in transferring the objects to Nigeria.^[34]

The Plaintiffs then sought a permanent injunction to prevent the transferring of Bronzes from the Smithsonian to Nigeria. They appealed but withdrew the appeal to amend the complaint, however did not submit an amended complaint, so the original complaint was used.^[35] The Smithsonian filed a motion to dismiss the case and the United States District Court for the District of Columbia granted the motion.^[36] In the July 2023 hearing, the Court determined that it lacked subject-matter jurisdiction to hear the case as the claims had become moot since the Smithsonian already transferred the Bronzes in October 2022.^[37]

Even so, the Court found that, even if mootness was avoided, the plaintiff lacked standing:

To have standing, a plaintiff “must have suffered an injury in fact” that is “(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical[.]”[…] Even assuming the Plaintiffs intended to enjoin the Smithsonian from transferring the remaining ten Bronzes in its collection, there are no allegations to support that another transfer is “actual or imminent.” Such an injury would be “too speculative” to support standing.^[38]

Finally, the Court agreed with the rest of the initial judgement, including the institution’s empowerment to transfer and misapplication of the unjust enrichment claim. Following the July 2022 decision, appeals filed by the Plaintiffs at the United States Court of Appeals for the District of Columbia Circuit have since been denied.^[39]

Standing refers to a litigant’s right “to have the court decide the merits of the dispute or particular issues.”^[40] The standing doctrine is a central fixture in legal systems to manage court efficiency in case management and determine the proper jurisdiction and legality of disputes in a society. Although significant, the decision on standing in Farmer-Paellmann v. Smithsonian Inst. points to a larger trend in cases of slavery reparations.

Reparations Litigation and Institutional Barriers

In the United States, there is a long history of African Americans pursuing litigation against the State and corporations for the horrors of slavery and, later, the violence inflicted by Jim Crow-era segregation.^[41] This, the legal pursuit of redress for the legacy of slavery and the continued racial injustice experienced by descendants, is called reparations litigation.^[42] Unfortunately, most reparations litigation in the United States, and specifically slavery-based cases like the case above, have failed for procedural and jurisdictional reasons including sovereign immunity, statutes of limitations, and lack of standing:

Sovereign immunity protects government entities from being sued. Statutes of limitations make it difficult to bring lawsuits for events that occurred centuries ago, making it harder for plaintiffs to prove their claims. Additionally, the issue of standing has proven to be a significant obstacle, with courts dismissing lawsuits from individuals not directly affected by slavery or unable to establish a legal connection to their ancestors’ harm.^[43] Despite ongoing advocacy efforts, the complex legal landscape and historical barriers have made it difficult for litigation seeking slavery reparations to succeed in the United States.

Farmer-Paellmann and Restitution Study Group’s complaint, briefly speaks to this history:

The Government of the United States has thwarted efforts to make any reparations to descendants of African enslaved people whose lives, liberty, and labour created immense wealth for certain elites in the United States.^[44]

Faced with dismissal for mootness and lack of standing, the central issues of their case remain untouched, like many of the reparations cases that have come before it. The dismissal of the action then further spotlights the institutional challenge faced by African-Americans in advancing reparations litigation.

Similarly, institutional challenges have too hindered the Edo’s capacity to restitute the Bronzes. Laws of limitation periods and the lack of retroactivity in international cultural heritage law have prevented formal litigation for the return of Benin royal art from the 1897 invasion by the British.^[45] This is why one is more likely to see the fate of the Bronzes determined by public campaigns and diplomatic relations than in courts. In both instances, the institutional barriers leave the parties legally stifled, hence primarily relying on ethical arguments to pursue their goals.

Conclusion

Farmer-Paellmann v. Smithsonian is a significant case, for it adds another dimension to understanding the Benin Bronzes as cultural and historical works. The case combines cultural heritage law, restitution, and reparation litigation. Even further, it speaks to the African diaspora’s relationship to Africa, histories of enslavement and colonialism, and the role of museums. A question then arises: what does it mean for Western institutions to continue to benefit from and hold collections born from the legacies of enslavement and colonialism? This is layered by the institutional legal challenges and modes of anti-Black racism that affect Black people globally. If Western museums reinscribe the violence and dehumanization of enslavement and colonialism, can the restitution of objects to origin countries on the continent be an opportunity to reimagine heritage and solidarity-building between Africa and its Diaspora? Farmer-Paellmann v Smithsonian allows one to consider these encounters in a way that is mindful of the weight of multiple histories and, upon closer look, the shared struggles between them.

About the Author:

Beverly Osazuwa is a rising third-year law student at the McGill University Faculty of Law. Her passion for art and cultural heritage law is born out of her Nigerian (Edo) heritage. Prior to her legal studies, she completed a Master of Arts in Political and Legal Thought at Queen’s University and obtained a Bachelor of Humanities from Carleton University.

Select Sources and References:

1. Note, this is difference from the Republic of Benin, which was historically of the Dahomey Kingdom. ↑
2. It is estimated that the British stole between 4,000-10,000 royal objects and cultural materials including brass works, carved ivory tusks, coral beads, relief carvings, drums, ceremonial swords, flasks, and crowns. See Barnaby Phillips, Loot 90 (2022); Dan Hicks, The Brutish Museums: The Benin bronzes, colonial violence and cultural restitution 137 (2020). ↑
3. There is debate on whether the burning of the Oba’s Palace was accidental or on purpose, see Phillips supra note 1 at 92-93. ↑
4. Institutions, Digital Benin,(accessed June 26 2024), https://digitalbenin.org/institutions. ↑
5. Emma Gregg, The story of Nigeria’s stolen Benin Bronzes, and the London museum returning them, National Geographic, (September 17 2022), https://www.nationalgeographic.com/travel/article/nigeria-stolen-benin-bronzes-london-museum. ↑
6. Plaintiff Complaint, 65, Farmer-Paellmann v. Smithsonian Inst., No. 1:22-cv-3048 (D.D.C.), October 7 2022. ↑
7. See generally, Taylor Dafoe, In a Landmark Vote, the Smithsonian Institution Officially Approves the Return of 29 Benin Bronzes to Nigeria, ArtNet, (June 15 2022), https://news.artnet.com/art-world/smithsonians-board-votes-to-return-benin-bronzes-2131098. ↑
8. Plaintiff Complaint, supra note 5. ↑
9. Id. ↑
10. Id. ↑
11. Daniel Weiss, The Benin Bronzes’ Secret Ingredient, Archeology Magazine, (November/December 2023), https://archaeology.org/issues/november-december-2023/digs-discoveries/the-benin-bronzes-secret-ingredient/. ↑
12. Plaintiff Complaint, supra note 5 at 4. ↑
13. A Bill To establish the ”Smithsonian Institution,” for the increase and diffusion of knowledge among men. H.R.5, 29th Cong. Sec 1.1845-1847). ↑
14. Office of the General Counsel, Legal History, Smithsonian Institution, (accessed June 25 2024), https://www.si.edu/ogc/legalhistory#:~:text=The%20Smithsonian%20Institution%20is%20a,under%20the%20name%20of%20the. ↑
15. Plaintiff Complaint, supra note 5 at 25. ↑
16. Id. at 90-96. ↑
17. Id. at 31. ↑
18. Id. at 50-56. ↑
19. Id. at 16. ↑
20. Ese Vivian Odiahi, The Origin and Development of the Guild of Bronze Casters of Benin Kingdom up to 1914, 6:1 AFRREV IJAH: An Int J of Arts and Humanities 176 (2017). ↑
21. Michael Ediagbonya, A study of the Portuguese-Benin Trade Relations: Ughoton as a Benin Port (1485 -1506), 2:2 Intl J of Humanities and Cultural Studies 206, 207 (2015). ↑
22. Helen Chapin Metz, ed. Nigeria: A Country Study, GPO for the Library of Congress (1991); Patricia M. Muhammad, The Trans-Atlantic Slave Trade’s African Elephant in the International Courtroom: West Africa’s Debt of Reparations to the Descendants of the Black Diaspora, 27:1 UC Davis J Int’l L & Pol’y 81,101 (2020); James D. Graham, The Slave Trade, Depopulation and Human Sacrifice in Benin History: The General Approach, 5:18 Cahiers d’études africaines, 321, 323 (1965), (“An overall view of the period, between 1486–1897, yields the conclusion that the European slave trade was seldom, if ever, of considerable importance to Benin”). ↑
23. Dimitri Bondarendko, Benin and the Slave Trade in Encyclopedia of the Middle Passage, (Toyin Falola and Amanda Wanocks eds., 2007). ↑
24. Benin `proper’ is used because the state consisted of several independent communities, often at war, who had full independent power and may have engaged in independent slaving operations with Europeans. For example, communities in the Lagos region were largely independent. See generally, James D. Graham, The Slave Trade, Depopulation and Human Sacrifice in Benin History: The General Approach, 5:18 Cahiers d’études Africaines, 321 (1965). ↑
25. See generally, Peter Ekeh, Benin, the Western Niger Delta, and the Development of the Atlantic World, 1 Umẹwaẹn: Journal of Benin and Ẹdo Studies 4 (2016). ↑
26. Plaintiff Complaint, supra note 5. ↑
27. Farmer-Paellmann v. Smithsonian Inst., LEXIS 233487, WL 17976505, (D.D.C. October 14, 2022). [Farmer-Paellmann, 2022] ↑
28. Id. ↑
29. Farmer-Paellmann, 2022, supra note 28. ↑
30. Dong v. Smithsonian Inst., 125 F.3d 877, 326 U.S. App. D.C. 350 (D.C. Cir. 1997) ↑
31. What is a ‘government instrumentality’?, Larned A. Waterman Iowa Nonprofit Resource Center (accessed June 17 2024), https://inrc.law.uiowa.edu/faqs/what-government-instrumentality. ↑
32. Office of the General Counsel, supra note 15. ↑
33. Farmer-Paellmann, 2022, supra note 28. ↑
34. Id. ↑
35. Farmer-Paellmann v. Smithsonian Inst., LEXIS 115133, 2023 WL 4350787 (D.D.C. July 5, 2023). [Farmer-Paellmann, 2023] ↑
36. Id. ↑
37. Id. ↑
38. Id. ↑
39. Farmer-Paellmann v. Smithsonian Inst., LEXIS 34478, 2023 WL 9009058 (U.S. App, D.C. Cir. December 28 2023); Farmer-Paellmann v Smithsonian Inst., LEXIS 4886 (U.S. App., DC Cir. February 29 2024). ↑
40. Warth v. Seldin, 422 U.S. 490, 498 (1975). ↑
41. The earliest known case for slavery reparations in the United States dates back to 1783, when Belinda Royall, a former enslaved woman, petitioned the Massachusetts General Court for compensation for her years of unpaid labor. The court ultimately granted her a pension to support her in her old age, making her one of the earliest known recipients of reparations for slavery in the country. See generally, Ta-Nehisi Coates, The Case for Reparations. In The Best American Magazine Writing, Columbia University Press, (2015). ↑
42. Angus Nurse, “Seeking Reparations for Anti-Black Harms” (2022) 165:4 Solic J 34. ↑
43. Id. See Johnson v. McAdoo, 45, 440 (App. D.C.1916). (the first documented attempt to litigate slavery redress and have a judicial opinion. Suit was dismissed on grounds of sovereign immunity); Berry v. United States, LEXIS 9665, WL 374537 (N.D. Cal. 1994) (Plaintiff sought quiet title to forty acres of land under the Freedmen’s Bureau Act of 1865 or $3 million in damages but was dismissed for lack of subject matter jurisdiction, failure to state a claim, and statute of limitations); Cato v. United States, 70 (F.3d) 1103 (9th Cir. 1995) (Case dismissed because of sovereign immunity, not raising statutory or constitutional violations, and not providing a basis for subject matter jurisdiction). ↑
44. Plaintiff Complaint, supra note 5 at 12. ↑
45. Hague Convention on Laws and Customs of War on Land was first to formally establish the idea that cultural property should be protected during armed conflict. It was signed in 1899, two years after the invasion and looting of Benin City, but lacked any retroactive application. the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention applies only to objects acquired three months after a state becomes a party to the treaty, and therefore only to objects acquired after 1970. ↑