Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Indigenous, Indian, and Aboriginal Law (11)
- Entertainment, Arts, and Sports Law (5)
- Law and Society (4)
- Environmental Law (3)
- Property Law and Real Estate (3)
-
- Administrative Law (2)
- Comparative and Foreign Law (2)
- First Amendment (2)
- Law and Philosophy (2)
- Legal Writing and Research (2)
- Supreme Court of the United States (2)
- Bankruptcy Law (1)
- Constitutional Law (1)
- Energy and Utilities Law (1)
- Fourteenth Amendment (1)
- International Law (1)
- Land Use Law (1)
- Law and Race (1)
- Legal History (1)
- Legislation (1)
- Litigation (1)
- Public Law and Legal Theory (1)
- Religion Law (1)
- Rule of Law (1)
- Sexuality and the Law (1)
- Keyword
-
- Native Americans (8)
- Art (6)
- Cultural preservation (5)
- Culture (5)
- Culture and law (5)
-
- Indian tribes (5)
- American Indians (4)
- Museums (4)
- Cultural property (3)
- Aesthetics (2)
- Antiquities (2)
- Architecture (2)
- Collector (2)
- Colonialism (2)
- Dead Sea Scrolls (2)
- Fifth Amendment (2)
- History (2)
- Indian lands (2)
- Land (2)
- Loretto v. Teleprompter Manhattan CATV Company (2)
- Lucas v. South Carolina Coastal Council (2)
- Minorities (2)
- Museum (2)
- Museum collections (2)
- Per se taking (2)
- Playing Darts with a Rembrandt: Public and Private Rights in Cultural Treasures (2)
- Private ordering (2)
- Property as photon model (2)
- Property rights (2)
- Public use (2)
- Publication Year
- Publication
- Publication Type
Articles 1 - 26 of 26
Full-Text Articles in Cultural Heritage Law
Cultural Resources, Conquest, And Courts: How State Court Approaches To Statutory Interpretation Diminish Indigenous Cultural Resources Protections In California, Hawai‘I, And Washington, Lauren Ashley Week
Michigan Journal of Environmental & Administrative Law
Critical Race Theory identifies two of the United States’ original sins: slavery and conquest; yet, while the former is well known, the latter is simultaneously obvious and unknown, creating a disconnect between the history of violent conquest to the disparities that continue to afflict indigenous communities today. This lack of understanding and acknowledgement also permeates the federal courts—an issue extensively documented by Critical Race Theory and federal Indian law academics. Yet, limited scholarship has interrogated if and how state judicial systems may parallel the failures of federal benches. This Note examines the “hidden,” yet enduring impact of conquest by applying …
Keeping The Barbarians At The Gates: The Promise Of The Unesco And Unidroit Conventions For Developing Countries, Michael P. Goodyear
Keeping The Barbarians At The Gates: The Promise Of The Unesco And Unidroit Conventions For Developing Countries, Michael P. Goodyear
Michigan Journal of International Law
The illicit trade in cultural property is a global phenomenon, powered by criminal networks and smuggling trains that sacrifice local culture for the black market of the art world. Headlines featuring the Islamic State’s lucrative exchange in stolen cultural property, among other incidents, have raised the profile of the illicit cultural property trade on the global stage. Developing countries, as the most prominent source countries of cultural property, are particularly at risk. Existing scholarship has searched for a solution to this crisis, suggesting a new international treaty to protect cultural property or recommending the utilization of adjacent legal fields. However, …
Pills And Picasso: Evaluating The Proposed Liquidation Of The Detroit Institute Of Arts During The Detroit Bankruptcy, Kevin Deutsch
Pills And Picasso: Evaluating The Proposed Liquidation Of The Detroit Institute Of Arts During The Detroit Bankruptcy, Kevin Deutsch
Michigan Business & Entrepreneurial Law Review
Part I of this Note provides background information that is helpful for understanding the Detroit bankruptcy, the role of the DIA in the bankruptcy, and municipal bankruptcies in general. Part II evaluates equitable arguments against a sale of the DIA’s collection. Part III provides a rationale for a partial sale of the DIA’s collection.
Customary Law Of Indigenous Communities: Making Space On The Global Environmental Stage, Melissa L. Tatum
Customary Law Of Indigenous Communities: Making Space On The Global Environmental Stage, Melissa L. Tatum
Michigan Journal of Environmental & Administrative Law
The high stakes often involved in controversies regarding who owns valuable natural resources and who has the authority to regulate environmental contaminants have resulted in fierce legal battles and struggles to establish and define international principles of law. Grand theoretical debates have played out on the international stage regarding the principle of free, prior, and informed consent and the legal contours of corporate social responsibility. Meanwhile, often under the radar, Indigenous people around the world have worked to create a sustained niche for their community and culture in the face of exploitation and environmental devastation at the hands of the …
Under Coyote’S Mask: Environmental Law, Indigenous Identity, And #Nodapl, Danielle Delaney
Under Coyote’S Mask: Environmental Law, Indigenous Identity, And #Nodapl, Danielle Delaney
Michigan Journal of Race and Law
This Article studies the relationship between the three main lawsuits filed by the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe against the Dakota Access Pipeline (DaPL) and the mass protests launched from the Sacred Stone and Oceti Sakowin protest camps. The use of environmental law as the primary legal mechanism to challenge the construction of the pipeline distorted the indigenous demand for justice as U.S. federal law is incapable of seeing the full depth of the indigenous worldview supporting their challenge. Indigenous activists constantly re-centered the direct actions and protests within indigenous culture …
Examining The Administrative Unworkability Of Final Agency Action Doctrine As Applied To The Native American Graves Protection And Repatriation Act, Adam Gerken
Michigan Journal of Environmental & Administrative Law
The application of the Administrative Procedure Act (“APA”) to the Native American Graves Protection and Repatriation Act (“NAGPRA”) creates unique practical and doctrinal results. When considering the application of the current law concerning judicial review of final agency action under the APA to NAGPRA, it is evident that the law is simultaneously arbitrary and unclear. In the Ninth Circuit’s holding in Navajo Nation v. U.S. Department of the Interior, the Court applied final agency action doctrine in a manner that was legally correct but administratively unworkable. The Court’s opinion contravenes both the reasoning behind the APA final agency action …
Rethinking Customary Law In Tribal Court Jurisprudence, Matthew L.M. Fletcher
Rethinking Customary Law In Tribal Court Jurisprudence, Matthew L.M. Fletcher
Michigan Journal of Race and Law
Customary law still appears in many of the decisions of American state and federal courts. Modern courts rely less on customary law, part and parcel of the English common law adopted and adapted by the Founders of the United States, with statutory and administrative law dominating the field. In contrast, the importance of customary law in American Indian tribal courts cannot be understated. Indian tribes now take every measure conceivable to preserve Indigenous cultures and restore lost cultural knowledge and practices. Tribal court litigation, especially litigation involving tribal members and issues arising out of tribal law, often turns on the …
Two Spirits, Two Eras, Same Sex: For A Traditionalist Perspective On Native American Tribal Same-Sex Marriage Policy, Jeffrey S. Jacobi
Two Spirits, Two Eras, Same Sex: For A Traditionalist Perspective On Native American Tribal Same-Sex Marriage Policy, Jeffrey S. Jacobi
University of Michigan Journal of Law Reform
Recently, several states amended their constitutions to define marriage as only a union between a man and a woman. Many Native American Indian tribal governments thereafter also adopted laws prohibiting homosexual marriages. However, this new policy conflicts with traditional tribal values. This Note shows that historically many tribes accepted and even honored same-sex unions. This Note proposes that tribes consider their traditions as they existed before European contact, and argues that, for some tribes, same-sex civil unions are a historically and culturally appropriate answer to the modern objections to same-sex marriage.
Individual Aboriginal Rights, John W. Ragsdale Jr.
Individual Aboriginal Rights, John W. Ragsdale Jr.
Michigan Journal of Race and Law
This Article will, in Section I, deal with the legal development of the concept of individual aboriginal rights. It will focus on the Western Shoshone land claims before the Indian Claims Commission, and the federal government's trespass claims against the ranching operations of the redoubtable, irrepressible Dann sisters. Section II will explore the development and utilization of the doctrine of individual aboriginal rights in a series of cases involving the Dann sisters, subsequent Western Shoshone, and other efforts by native people to secure subsistence hunting and fishing rights and possession of or access to sacred sites. Section III will explore …
Casting Light On Cultural Property, John J. Costonis
Casting Light On Cultural Property, John J. Costonis
Michigan Law Review
Theorists of private property invite comparison to theorists of light. For centuries, the latter have debated whether light is best understood as a wave or as a photon. The rivalry has been intense because each hypothesis explains some characteristics of light very well, but others very poorly. Wave theory outstrips photon theory in explaining such phenomena as light's frequencies and diffraction patterns. But photon theory, which reduces light to a succession of particles, more effectively explains such subatomic phenomena as changes in an atom's orbital shell produced by the interaction of photons and electrons. Property theorists too can be viewed …
Who "Owns" A Cultural Treasure?, Jason Y. Hall
Who "Owns" A Cultural Treasure?, Jason Y. Hall
Michigan Law Review
Because of the thoughtfulness of its arguments, the range and depth of its presentation of specific cases, and the fairness with which it reveals, thinks through, and allows some validity to opposing points of view, Playing Darts with a Rembrandt is a valuable contribution to understanding which parties have, and should have, rights in key objects that comprise our collective heritage. That I am not persuaded by some of the specific arguments in the book in no way reduces my admiration for what it accomplishes.
Reading Texts, Reading Traditions: African Masks And American Law, James Boyd White
Reading Texts, Reading Traditions: African Masks And American Law, James Boyd White
Articles
My subject in this Essay is the relation between a text or other artifact and the tradition against which it acts. I want to begin by borrowing from a book that seems to me to represent a model-not the only model, of course, but a very good one-of a certain kind of cultural investigation. The book is Inventing Masks by Z.S. Strother, an art historian at Columbia University who specializes in African art. Its material subject is a set of face masks made by the Central Pende, an African people in what is now the Democratic Republic of Congo.
Monuments To The Past In A Leveling Wind, Benjamin Means
Monuments To The Past In A Leveling Wind, Benjamin Means
Michigan Law Review
Early in the twentieth century, the Emperor Franz Joseph sponsored a monument to Hungary's history - a Millennium Monument containing statues of the country's heroes, as well as statues of the proud sponsor and his family (p. 5). When the communists took over in 1919, the statues of Franz Joseph and the rest of the Hapsburgs were dragged out of the Millennium Monument and replaced with more politically correct statuary (p. 8). Counterrevolutionaries, though, retook the country and reinstated the Hapsburg Statues in the Millennium Monument - until a later regime once again reshuffled the millennial display (pp. 9-10). Professor …
When It’S Ok To Sell The Monet: A Trustee-Fiduciary-Duty Framework For Analyzing The Deaccessioning Of Art To Meet Museum Operating Expenses, Jennifer L. White
When It’S Ok To Sell The Monet: A Trustee-Fiduciary-Duty Framework For Analyzing The Deaccessioning Of Art To Meet Museum Operating Expenses, Jennifer L. White
Michigan Law Review
Contrary to the view adopted by current codes of ethics, this Note argues that courts should approve a museum director's use of proceeds from the sale of deaccessioned art to meet operating expenses if the director's conduct comports with the duties of trustees under the law of trusts. Part I explores possible organizational structures for museums, including the charitable trust and the nonprofit corporation. Part I also compares the fiduciary duties of museum managers under trust and corporate law. Part II argues that courts should apply trust-law principles both to trustees of charitable trusts and directors of charitable corporations26 because …
Nothing Lasts Forever: Toward A Coherent Theory In American Preservation Law, Kathryn R.L. Rand
Nothing Lasts Forever: Toward A Coherent Theory In American Preservation Law, Kathryn R.L. Rand
University of Michigan Journal of Law Reform
Part I of this Note examines Grégoire's liberty-based theory of preservation and discusses the three rationales that underlie his theory. Part II examines the development of preservation law in the United States, following it through three stages: patriotic inspiration, aesthetic merit, and community. Part III examines Italy's experience with preservation in order to identify and discuss several problems inherent in preservation law. Part IV suggests preservation rationales for courts and legislators to consider and identifies problems for them to avoid.
Self-Determination For Indigenous Peoples At The Dawn Of The Solar Age, Dean B. Suagee
Self-Determination For Indigenous Peoples At The Dawn Of The Solar Age, Dean B. Suagee
University of Michigan Journal of Law Reform
In addition to challenging readers to help make the principle of self-determination a reality for indigenous peoples, this Article challenges indigenous leaders, especially those in the United States, to help formulate our collective vision of a sustainable future and to provide leadership in making that vision a reality. The United Nations has designated 1993 the International Year for the World's Indigenous Peoples, and this event will provide tribal leaders with opportunities to have their voices heard. Tribal leaders in the United States should take full advantage of these opportunities and step to the forefront of the movement to hasten the …
Community, Constitution, And Culture: The Case Of The Jewish Kehilah, Nomi Maya Stolzenberg, David N. Myers
Community, Constitution, And Culture: The Case Of The Jewish Kehilah, Nomi Maya Stolzenberg, David N. Myers
University of Michigan Journal of Law Reform
Part I describes the historical development of the Jewish kehilah, its subsequent evolution, and eventual dissolution. Part II surveys recent trends in legal scholarship which reflect a growing consciousness of the tension between the demands of self-conscious cultural groups and liberal legal principles.
Minority Cultures And The Cosmopolitan Alternative, Jeremy Waldron
Minority Cultures And The Cosmopolitan Alternative, Jeremy Waldron
University of Michigan Journal of Law Reform
I have chosen not to talk in this Article about the warning that Rushdie is sounding in his essay In Good Faith, but to discuss more affirmatively the image of the modern self that he conveys. Still, I hope that we do not lose sight of the warning. The communitarianism that can sound cozy and attractive in a book by Robert Bellah or Michael Sandel can be blinding, dangerous, and disruptive in the real world, where communities do not come ready-packaged and where communal allegiances are as much ancient hatreds of one's neighbors as immemorial traditions of culture.
Repatriation And Cultural Preservation: Potent Objects, Potent Pasts, Peter H. Welsh
Repatriation And Cultural Preservation: Potent Objects, Potent Pasts, Peter H. Welsh
University of Michigan Journal of Law Reform
Parts I and II discuss the preservation idea itself and the history of museums' participation in cultural preservation efforts. Parts III and IV then look specifically at the repatriation issue, providing some background on initiatives that have influenced peoples' thoughts and actions. Finally, Part V outlines and discusses some of the issues that have made resolution of the repatriation issue particularly complex.
Democracy And Respect For Difference: The Case Of Fiji, Joseph H. Carens
Democracy And Respect For Difference: The Case Of Fiji, Joseph H. Carens
University of Michigan Journal of Law Reform
In what follows, I will first offer a capsule history of Fiji. I then will identify some of the moral questions that emerge, both for the inhabitants of Fiji and for us as observers. I will present some tentative answers to these moral questions, reflecting as I go on what this tells us about the possibilities and limits of normative theory, but also trying to note where my normative judgments rest upon features of the story that I think others would want to contest and trying to indicate how alternative readings of the history would affect the normative judgments, if …
Introduction, Joseph L. Sax
Introduction, Joseph L. Sax
University of Michigan Journal of Law Reform
Reading through the articles in this Symposium is like walking deep into a dense forest. The experience is exhilarating but edged by a concern that the farther you go, the less sure you are of where you are. The articles here reveal the problem of cultural preservation in all its complexity and many-sidedness. This is not one of those symposia where the authors seek to outdo each other in self-condemnation for the wrongs perpetrated by colonial invaders on hapless indigenous people. Neither is it a lament for the assault on science by advocates of modish multiculturalism. The essays here are …
Heritage Preservation As A Public Duty: The Abbé Grégoire And The Origins Of An Idea, Joseph L. Sax
Heritage Preservation As A Public Duty: The Abbé Grégoire And The Origins Of An Idea, Joseph L. Sax
Michigan Law Review
Public responsibility for the conservation of artifacts of historic or aesthetic value is now acknowledged everywhere. One way or another the state will ensure preservation of a Stonehenge or a Grand Canyon as well as a great many lesser cultural icons. We have names for such things - "heritage" and "cultural property" are two of them; "patrimony" is a European counterpart - but these words have no very specific meaning. Many, but by no means all, of the objects we feel constrained to protect are old. They include human artifacts as well as natural objects or places. Though it is …
American Indian Sacred Religious Sites And Government Development: A Conventional Analysis In An Unconventional Setting, Mark S. Cohen
American Indian Sacred Religious Sites And Government Development: A Conventional Analysis In An Unconventional Setting, Mark S. Cohen
Michigan Law Review
For centuries, American Indians have regarded specific lands as essential to their livelihood, government, culture, and religion. Congress and the courts have at times recognized the important relationship between tribes and their lands. Recognition has not always coincided with protection; during the nineteenth century and part of the twentieth century a series of governmental actions resulted in the tribes surrendering title and possession to many of their ancestral lands. Recently, however, American Indians have become increasingly active litigants in a variety of contexts. In one set of cases, Indians challenged government development projects on public lands, contending that because the …
The Trampas File, Joseph L. Sax
The Trampas File, Joseph L. Sax
Michigan Law Review
The Las Trampas reports are a refreshing dose of unsentimental discussion about community, culture, and tradition - subjects that are all too often submerged in bathetic wishful thinking.
Thinking About The Elgin Marbles, John Henry Merryman
Thinking About The Elgin Marbles, John Henry Merryman
Michigan Law Review
In the early nineteenth century, a British Lord removed much of the sculpture from the Parthenon and shipped it to England. Housed in the British Museum and named after their exporter, the Elgin Marbles have become a source of international controversy. The Greeks wish to see the Marbles returned to the Acropolis and their position is supported by a growing movement seeking the repatriation of cultural property. The Elgin Marbles are representative of the many works of art in the world's museums and private collections that could be subject to repatriation. Rejecting the emotional appeal of the Greek position, Professor …
Law And Aesthetics: A Critique And A Reformulation Of The Dilemmas, John J. Costonis
Law And Aesthetics: A Critique And A Reformulation Of The Dilemmas, John J. Costonis
Michigan Law Review
This Article both examines these consequences and explains why they have departed so frequently from the ostensible goals of the policies that produced them. It also surveys the principal legal dilemmas that attend aesthetic policy-making, which is sensitive to the values actually at stake in the type of "aesthetic" controversies that legal institutions are called upon to resolve in American society. The aesthetic controls addressed are those adopted in such areas as zoning, historic or environmental preservation, and urban design to shape the visual appearance of the built and natural environments. The content of the aesthetics idea is explored through …