Sherry Hutt - Yearbook of Cultural Property Law 2007

Sherry Hutt

Editor

David Tarler

Assistant Editor

First published 2007 by Left Coast Press, Inc.

Published 2016 by Routledge
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Copyright 2007 Taylor & Francis

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ISSN 1931-5627
ISBN 978-1-59874-078-3 Hardback
LCCN 2006213755

Welcome to a review of the year 2006 in the domain of cultural property law. It has been an active year as measured by the number of news articles, court actions, and journal articles that were generated and are noted in this volume. The Yearbook seeks to bring together thoughtful pieces that explain these issues, inform and educate, and assemble source materials useful to those who will seek to represent clients and make difficult decisions in cultural property matters in the coming years.

At the core of the Yearbook are the Practice Area sections, each with a section editor who is a practitioner and scholar in his or her respective area of the genre of law that is cultural property law. If you the reader feel that there is something that should be covered in the coming year, the editors would be pleased to receive your comments. In some instances, cases are not reported even though there was litigation during the year, as the sentencing or culminating event had not occurred by years end.

The articles in the Yearbook are peer reviewed and the topics are chosen to add further depth to the Practice Areas, to give the reader insight into major events, and to provide source data that are not published elsewhere. This year Patty Gerstenblith, law professor at DePaul University and former member of the Cultural Property Implementation Act Committee at the Department of State, has tackled the complex issues in International Law, dealing with the acquisition and restitution of art. Tom Kline and L. Eden Burgess, who represent claimants, collectors, and museums in ownership disputes at the firm of Andrews Kurth LLP in Washington, D.C., have responded to recent case law to offer timely guidance to museum trustees. Douglas Wheeler and Jeffrey Nelson, of Hogan & Hartson LLP had a front row seat during the controversy that arose when the Washington State Department of Transportation unearthed an ancient cultural site and burial ground, sacred to the Lower Elwa Klallam tribe. Although they represented the tribe through the difficulties to the resolution and settlement, their article strives to present the facts in a neutral tone and provides a thoughtful case study on the NHPA Section 106 process. Bob Palmer, a law enforcement ranger with the National Park Service at Effigy Mounds National Park and a professor of criminal justice, and Todd Swain, a National Park Service Special Agent, recognized by the Department of the Interior with the Conservation Service Award, and by NPS law enforcement agents with the 2006 Harry Yount National Park Ranger Award, have culled public records in order to assemble statistics on resource damage and prosecutions not previously published. The Yearbook appreciates the support they received from the National Park Service, which enabled them to generate these articles as a service to lawyers and resource managers. The Yearbook is also pleased to publish the winning submission of the 2006 Lawyers Committee for Cultural Heritage Preservation (LCCHP) Law School Writing Competition. The winning article by Travis Sills, who completed an LL.M. in Intellectual Property this year at DePaul University College of Law, discusses the application of civil judgments to resolving claims to objects of ancient culture.

The Yearbook also strives to present substantive pieces on perennial issues. The editors essay examines the conundrum of intersecting cultural property laws. While there is generally no dispute that there are efficiencies to be gained by combining steps in NHPA, NEPA, NAGPRA, ARPA, and other compliance laws, success in this effort is not a simple linear process. The essay attempts to further understanding in the quest.

Distinguished law professors John Henry Merryman of Stanford and Joseph L. Sax of the University of California at Berkeley are well known for their thoughtful analysis of the fundamentals of cultural property law. This year they graced the Yearbook with interviews that asked them to reflect on Two Ways of Thinking about Cultural Property (from the title of the 1986 Merryman article). Although Merryman, who prefers an internationalist view of the market of cultural property, and Sax, who ponders the legal/theoretical/ethical side of possession of objects of timeless meaning, have different approaches to the subject, their views are not all that disparate.

If there are still those who regard the field of cultural property law as a marginal interest area, the misconception should be dispelled by a perusal of the resources section. Harvard Law student Ryan Rowberry having conducted a survey of law schools for the LCCHP has compiled the results for publication in this volume. It is apparent that law schools have awakened to the need to put cultural property law in the curriculum. Further, the review of books and articles, by its length alone, reflects the depth and breadth of scholarship in the field. The list is not exhaustive. Rather, the editors included works from 2006 and those from prior years of timeless benefit. If readers feel there is an omission, the editors invite your suggestions.