Yearbook of Cultural Property Law
2008
YEARBOOK OF CULTURAL PROPERTY LAW
Series Editor: Sherry Hutt
Sponsored by the Lawyers Committee for Cultural Heritage Preservation
The Yearbook provides those in the heritage-management world with summaries of notable court cases, settlements and other dispositions, legislation, government regulations, policies, and agency decisions that affect their work. Interviews with key figures, refereed research articles, think pieces, and a substantial resources section round out each volume. Thoughtful analyses and useful information from leading practitioners in the diverse field of cultural property law will assist government land managers; state, tribal, and museum officials; attorneys; anthropologists; archaeologists; public historians; and others to better preserve, protect, and manage cultural property in domestic and international venues. All royalties go directly to the Lawyers Committee for Cultural Heritage Preservation.
Editor, 2008 Sherry Hutt
Assistant Editor David Tarler
Section Editors James Van Ness
Kelly Yasaitis Fanizzo
Rob Roy Smith
Caroline Blanco
Lucille A. Roussin
Thomas R. Kline
Patty Gerstenblith
David Tarler
Michael Scherzer
Gary Nurkin
Contributing Editors L. Eden Burgess
Anita Canovas
Elise Foster
Lawyers Committee for Cultural Heritage Preservation
President Patty Gerstenblith
Vice President Marion P. Forsyth
Secretary/Treasurer Anita Canovas
First published 2008 by Left Coast Press, Inc.
Published 2016 by Routledge
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Routledge is an imprint of the Taylor & Francis Group, an informa business
Copyright 2008 Taylor & Francis
All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.
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ISSN 1931-5627
ISBN 978-1-59874-080-6 Hardback
LCCN 2006213755
Contents
by Ildik P. DeAngelis
by James Van Ness
by Kelly Yasaitis Fanizzo
by Rob Roy Smith
by Caroline M. Blanco
by Lucille A. Roussin
by Thomas R. Kline
by Patty Gerstenblith
by David Tarler
by Kelly Yasaitis Fanizzo
by Trinidad Contreras
by James A. Wawrzyniak, Jr. (Winner of the 2007 LCCHP Law School Writing Competition)
by Michael Scherzer
Compiled by by Gary Nurkin
by Patty Gerstenblith
by Lauryn H. Guttenplan
Welcome to a review of the year 2007 in the vibrant field 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 use the law as a means to protect cultural property.
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. The Yearbook is intended as an ongoing aid to legal practice, ranging from scholarly analysis of emerging issues to practical aids for practitioners and educators. This year two articles tackle at some length topics of interest to those who produce archaeological reports or manage CRM firms, and those who govern tribal cultural property. Kelly Yasaitis Fanizzo, who works with federal agency compliance at the Advisory Council for Historic Preservation, has researched the legal rights to the content of archaeological reports and provides pertinent insight to the layers of property interests in the tangible and intangible aspects of such research. Trinidad Contreras seeks to offer a model code for tribal cultural property by placing such code into cultural context. Holding a graduate degree in American Indian Studies and completing law school at the University of Arizona, Rogers College of Law, Contreras has spent years studying the intersection of tribal and U. S. law. He began his research for the Yearbook by analyzing existing codes, which appear to be modeled on federal protection and compliance laws, written in the vein of archaeological resources management. To better serve tribal governments from the perspective of the tribe, he offers a comprehensive model.
The Yearbook is also pleased to publish the winning submission of the 2007 Lawyers Committee for Cultural Heritage Preservation (LCCHP) Law School Writing Competition, now generously sponsored by the law firm of Andrews Kirth. The winning article by James Wawrzyniak, a graduate of Harvard Law School, provides a thoughtful analysis of the enforcement of judgments against foreign nations by attaching cultural assets.
The Yearbook strives to provide substantive information on current topics of interest. This year George Washington University Museum Law Professor Ildik DeAngelis traveled to Rome to interview Paolo Ferri, the prosecutor in the trial of Getty Museum curator Marion True. It is notable that Mr. Ferri does not usually give press interviews, preferring to try his cases in court, but in this instance he was impressed by Professor DeAngelis and her ability to transcend the spectacle of the trial and focus upon a legal and ethical lesson for museum professionals.
The Yearbook editors are pleased to recognize those practitioners who inspire us and who have made a positive impact on the field. This year the focus is on museums and two directors of substantial note. Donny George Youkhanna earned the esteem of museum directors around the world as he sought to protect the treasures of Iraq in the midst of war and to keep museums intact. Richard West retired this year as founding director of the National Museum of the American Indian. West not only raised the funds that helped to open the museum, but his philosophy of a portrayal of American Indians, as bearers of living, vibrant and talented cultures, has shaped the museum and given it worldwide prominence in the short term. In coming years, the
