Sherry Hutt - Yearbook of Cultural Property Law 2009

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Yearbook of Cultural Property Law
2009

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	Sherry Hutt
Assistant Editor	David Tarler
Section Editors	James Van Ness
Kelly Yasaitis Fanizzo
Rob Roy Smith
Nathaniel R. Orpen
Lucille A. Roussin
Thomas R. Kline
L. Eden Burgess
Patty Gerstenblith
Laina Lopez
David Tarler
Gary Nurkin
Contributing Editors	Anita Canovas
Elise Foster
Caroline Blanco
Lawyers Committee for Cultural Heritage Preservation
President	Patty Gerstenblith
Secretary/Treasurer	Anita Canovas

Yearbook of Cultural Property Law
2009

Sherry Hutt

Editor

David Tarler

Assistant Editor

First published 2009 by Left Coast Press, Inc.

Published 2016 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
711 Third Avenue, New York, NY 10017, USA

Routledge is an imprint of the Taylor & Francis Group, an informa business

Copyright 2009 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.

Notice:
Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

ISSN 1931-5627
LCCN 2006213755
ISBN 978-1-59874-419-4 (hbk)

Contents

by Jennifer Anglim Kreder

by James Van Ness

by Kelly Yasaitis Fanizzo

by Rob Roy Smith

by Nathaniel R. Orpen

by Lucille A. Roussin

by Thomas R. Kline and L. Eden Burgess

by Patty Gerstenblith and Laina Lopez

by David Tarler

by Marilyn Phelan

by Jillianne M. Arguello, Finalist 2008 LCCHP/Andrews Kurth LLP Law School Writing Competition

by Jessica Kennedy, Finalist 2008 LCCHP/Andrews Kurth LLP Law School Writing Competition

by Bryan Stockton, 2nd Place Winner 2008 LCCHP/Andrews Kurth LLP Law School Writing Competition

Compiled by Gary Nurkin

Welcome to a review of the year 2008 for the genre of law that is cultural property law. It has once again proven to be a substantive 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 series 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.

As well as inform the reader and support cultural property practitioners, the Yearbook seeks to give identity to cultural property law, or cultural heritage law as some refer to it, as an identifiable area of legal practice. The Yearbook of Cultural Property Law series joins together federal, state, local, tribal, museum, historic preservation, marine resources, art market, international, and criminal law in one volume, where the common thread of cultural property law is identified, discussed, and analyzed. In this manner, the components of cultural property law can be seen and precedent can be addressed in a meaningful context. The reader will note that cases or discussions may appear in more than one section or article in the volume, allowing them to be viewed from different perspectives within cultural property law. It is hoped that genre identification will allow meaningful precedent to be developed in court cases. Cultural property law, although unique, is of the same standing as other well-recognized legal areas, which interrelate, such as: environmental law, Indian law, contracts, torts, administrative, international, and criminal law.

At the core of the Yearbook are the Practice Area sections, each with a section editor who is a practitioner and scholar in that particular area of cultural property law. If you the reader feel that something should be covered in the coming year, the editors would be pleased to receive your comments. In some instances, cases that saw litigation during the year are not reported, 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. The Yearbook is similar to a law journal in the scholarly treatment of cutting edge topics, but it strives to blend cross-disciplinary styles of writing, combining legal and scientific forms. Contributors to the Yearbook are creative and forward thinking, seeking to identify the course of the law, but they are also mindful of their responsibility to fully inform the reader of the parameters of issues. The series strives for credibility upon which practitioners can rely. Thus, items accepted for the Yearbook are not advocacy pieces, except to the extent they generally promote cultural resource protection through use of the law.

Once again this year, the Yearbook has been produced as a project of the LCCHP, the nonprofit organization of lawyers, which is dedicated to scholarship, education, and cultural heritage preservation, and which receives the proceeds from the sale of this volume. The regular contributors to the

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