Cultural Heritage Law Commons^™

Unlached: The Case Against Laches In Actions Brought In Replevin By Foreign Sovereigns For Objects Of Cultural Heritage, Peyton M. Kendall

William & Mary Law Review

The American judicial system sanctions the theft of objects of immense cultural value from source nations—countries whose modern borders encompass territory previously inhabited by culturally rich civilizations—by allowing the allegedly equitable doctrine of laches to serve as an affirmative defense to actions brought by foreign sovereigns in replevin.

Courts have treated laches as a valid affirmative defense in foreign-sovereign-plaintiff replevin actions, treating the foreign sovereigns no differently than they would a private citizen bringing suit for a piece of artwork. While the value of the artwork may be the same in the two instances—both in terms of cultural and monetary …

Decolonizing The Museum: Improving Transparency Of Colonial Era Art In Museum Collections, Georgia Slattery

William & Mary Law Review Online

This Note argues that the current standards regarding the display of colonial era artwork must be addressed through a new form of oversight and enforcement. In order to understand why the law and policies surrounding museums’ duties should change, it is important to first understand the existing frameworks that guide the choices museums make today. Part I of this Note provides the relevant background, first taking a brief look at the impact of the Nazis on the art world and addressing some of the leading guidelines and legislation about provenance research and restitution claims for Nazi-looted art. Part I then …

Provenance Researchers Wanted: How & Why The Fiduciary Duty Of Care For Museum Trustees Should Be Expanded, Gracie O. Moore

William & Mary Business Law Review

As non-profit directors, museum trustees owe the fiduciary duties of care and loyalty to their institutions. The museum community has established that provenance research is crucial to the ethical operation of museums; however, employing a full-time provenance researcher has not been considered as falling under the duty of care. This Note argues that the fiduciary duty of care for museum trustees should be interpreted to include the employment of a full-time provenance researcher or the establishment of a full-time provenance research department. First, employing a full-time provenance researcher can prevent potential lawsuits against museums because they have the proper skills, …

Decommodifying Cultural Heritage: A Linguistic Unpacking Of "Cultural Property", Zoe Creamer

William & Mary Law Review

The complex history of cultural property regulation in the United States, discussed below, suggests a lack of consensus regarding the definition of the legislation’s target. However, as this Note argues, it is futile to attempt crafting a precise definition of the objects qualifying for protection under such legislation without first addressing the dueling interests inherent in the operative words. An examination of the various aims of cultural property legislation reveals two competing goals. On one side exists the desire to protect cultural heritage for the world’s enrichment, and on the other is the desire to protect private ownership rights. These …

When All Else Fails: The Doctrine Of Foreign Equivalents As A Bar To Cultural Misappropriation, Stephanie H. Soh

William & Mary Law Review

This Note argues that under trademark law, the doctrine of foreign equivalents can be utilized to prevent some aspects of legally enforced cultural misappropriation. While it would be impossible to solve cultural misappropriation in one written piece, this Note proposes that the doctrine can serve to prevent applicants from obtaining trademark protections for certain foreign words.

Part I of this Note provides background on cultural misappropriation and the doctrine of foreign equivalents. Part II argues why the doctrine of foreign equivalents is poised to solve some of the harms of cultural misappropriation both in its structure and purpose. Part III …

Making Waves: How Mandated Arbitration Could Better Address Cultural Heritage And Bring Treasure Salvage Law Into The Twenty-First Century, Megan C. Bodenhamer

William & Mary Law Review

This Note argues that American treasure salvage law should implement the modern legal techniques of Alternative Dispute Resolution—specifically arbitration—to address the modern problems surrounding treasure salvage law. Part I of this Note provides an overview of the law governing treasure salvage law. This includes common law principles called the law of finds and the law of salvage as well as the governing United States law and international treaties. Part II will outline the problems with the current standing of treasure salvage law, particularly how it fails to address modern cultural heritage considerations such as scientific advancement and the proliferation of …

Mining And The Protection Of Aboriginal Heritage In South Australia, Alex Wawryk

William & Mary Environmental Law and Policy Review

In 2020, the multinational mining company Rio Tinto destroyed 46,000-year-old Aboriginal rock paintings in Juukan Gorge, Western Australia, to national and international outrage. The incident led to an explosion of concern in Australia regarding the adequacy of domestic laws that aim to protect Aboriginal cultural heritage from the impacts of resource exploitation. This Article explains and critically analyzes the legislative and regulatory framework for the protection of Aboriginal heritage in relation to mining in South Australia. It demonstrates the complexity of the legal and regulatory regime, identifies a number of significant flaws in the key act designed to protect Aboriginal …

Selling Aloha: The Fight For Legal Protections Over Native Hawaiian Culture, Angela Louise R. Tiangco

William & Mary Journal of Race, Gender, and Social Justice

In 2018, a Chicago-based restaurant attempted to enforce a registered trademark of “Aloha Poke” by sending cease-and-desist letters to small businesses with names containing some variation of the phrase. Most of those businesses were owned by Native Hawaiians, causing an uproar due to the terms “aloha” and “poke” having strong ties to traditional Hawaiian culture. Known as the Aloha Poke case, it brought attention to the fact that the United States currently has no definite legal framework to protect the cultural heritage of Native Hawaiians, much less their intangible cultural heritage.

This Note addresses the lack of federal recognition granted …

Coordinating Nhpa And Nepa To Protect Wildlife, Tala Dibenedetto

William & Mary Environmental Law and Policy Review

In addition to its ecological and intrinsic significance, wildlife is recognized as invaluable historic and cultural resources. Current laws protecting wildlife, like the Endangered Species Act (“ESA”), fail to recognize this dimension, and are limited in providing meaningful protection for culturally significant wildlife. The cultural and historic value of wildlife was recognized in Dugong v. Rumsfeld, in which the court held that a species of dugong could be considered “historic property” under the National Historic Preservation Act (“NHPA”). NHPA requires federal agencies to evaluate the impact of all federally funded or permitted projects on “historic properties.” It is a close …

The Convention For The Safeguarding Of The Intangible Cultural Heritage (Csich) And The Control Of Indigenous Culture: A Critical Comment On Power And Indigenous Rights, Jonathan Liljeblad

William & Mary Journal of Race, Gender, and Social Justice

The Preamble of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage (CSICH) recognizes the connection between indigenous peoples and intangible cultural heritage. The convention indicates that part of its mission is to protect the intangible cultural heritage of indigenous peoples against the processes of globalization and social transformation. The convention, however, has been critiqued for the manner in which it attempts to manage intangible cultural heritage, with critics charging that the convention fosters a power structure that favors states and thereby threatens to marginalize indigenous peoples from control over their own cultures. Such criticism raises a question …

We Are All Growing Old Together: Making Sense Of America's Monument-Protection Laws, Zachary Bray

William & Mary Law Review

Monuments and the laws that protect them divide Americans today as never before. American attitudes toward monuments have always been a blend of affection, insecurity, and suspicion. But Americans are now more invested in the built and natural monuments that surround us: to be for, or against, protecting certain monuments has now become a shorthand for one’s stance on a host of cultural and political issues. These changing attitudes have thrown American monument-protection laws into sharp relief. And many local, state, and federal legislators and executive officials have taken advantage of this opportunity to exploit America’s patchwork of monument-protection laws, …

Historic Districts: Preserving The Old With The Compatible New, Emma Brandt Vignali

William & Mary Law Review

No abstract provided.

Historic Preservation Easements: A Proposal For Ohio, Ronald H. Rosenberg, Pamela G. Jacobstein

Faculty Publications

No abstract provided.

Archeological Resource Preservation: The Role Of State And Local Government, Ronald H. Rosenberg

Faculty Publications

No abstract provided.