Cultural Heritage Law Commons^™

Guest Editors' Introduction To The Special Issue, Diversity In Aquatics, Angela K. Beale-Tawfeeq, Steven N. Waller Ph.D., Austin Anderson

International Journal of Aquatic Research and Education

This is the introductory editorial leading off the special issue, "Diversity in Aquatics."

Around Campus

DePaul Magazine

Reburying the Dead: Returning control of ancient remains to Native American tribes; Communicating Climate Change: DePaul professor discusses effective ways to connect with skeptical and disengaged audiences; The Great Mind of Michael Shannon

A View From American Courts: The Year In Indian Law 2017, Grant Christensen

Seattle University Law Review

This Article provides a comprehensive review of Indian law for 2017. It does not include a citation to every case related to Indian law issued by the courts but tries to incorporate the majority of opinions into its catalog to provide a robust discussion of the changes in Indian law over the course of 2017. Part I of this Article provides some general statistics about Indian law in 2017. Part II focuses on activity at the U.S. Supreme Court, which is the most watched forum for Indian law cases for obvious reasons. Part III groups cases by subject area and …

“Indian” As A Political Classification: Reading The Tribe Back Into The Indian Child Welfare Act, Allison Krause Elder

Northwestern Journal of Law & Social Policy

In the summer of 2018, the Ninth Circuit will consider an appeal from the dismissal of a constitutional challenge to the Indian Child Welfare Act (ICWA). Brought by a conservative think-tank, this case frames the ICWA as race-based legislation, violating equal protection by depriving Indian children of the same procedures as non-Indian children in child custody cases. In reality, the ICWA seeks to protect the interests of tribes, Indian families, and Indian children by establishing special procedures and obligations in Indian child custody cases. On its face, the ICWA is concerned not with the race of children, but with the …

The Failure Of International Law In Palestine, Svetlana Sumina, Steven Gilmore

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Protecting Cultural Rights In The South Pacific Islands: Using Unesco And Marine Protected Areas To Plan For Climate Change, Elizabeth Thomas

Fordham Environmental Law Review

No abstract provided.

Prisoner's Dilemma—Exhausted Without A Place Of Rest(Itution): Why The Prison Litigation Reform Act's Exhaustion Requirement Needs To Be Amended, Ryan Lefkowitz

The Scholar: St. Mary's Law Review on Race and Social Justice

The Prison Litigation Reform Act (PLRA) passed in 1996 in an effort to curb litigation from prisoners. The exhaustion requirement of the PLRA requires prisoners to fully exhaust any administrative remedies available to them before filing a lawsuit concerning any aspect of prison life. If a prisoner fails to do so, the lawsuit is subject to dismissal. The exhaustion requirement applies to all types of prisoner lawsuits, from claims filed for general prison conditions to excessive force and civil rights violations. It has been consistently and aggressively applied by the courts, blocking prisoners’ lawsuits from ever going to trial. Attempts …

Trapped In The Shackles Of America's Criminal Justice System, Shristi Devu

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming

Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing

Texas A&M Law Review

During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …

The Charitable Deduction And Looting Of Antiquities: A Comparative Approach, Sabrina Y. Hsieh

Cornell International Law Journal

The tax incentive structure for charitable giving in the United States, as in many other countries, is imperfect. The structure over-incentivizes donations from wealthy individuals, whether those donations are made up of cash or of property. This structure has negative impacts not only domestically, but abroad as well.

By providing an incentive for donations of antiquities to museums— an incentive that was perhaps largely necessitated by the state of American museums in the 19th century— the charitable deduction has not only created a market for antiquities of questionable provenance, but has also created what is potentially a get-out-of-jail free card …

Kebijakan Pertanahan Bagi Wni Keturunan Tionghoa Di Yogyakarta: Diskrimasi Atau Diskriminasi Positif, Ratih Lestarini

Jurnal Hukum & Pembangunan

This paper intends to examine the enforcement of land policy related land rights for Indonesian citizens of Chinese descent in the Territory Special Region of Yogyakarta. In this context, they can only be granted land rights in the form of HGB, not allowed to obtain property rights to land in Yogyakarta. This restriction is considered as a different treatment of citizens of Chinese descent. This issue becomes important to be discussed considering the Law No. 5 of 1960 on Agrarian Principles ensuring the arrangement of land tenure is directed to be utilized for all Indonesian citizens without exception in a …

Dilema Komersialisasi Pengetahuan Tradisional Dalam Sistem Hukum Indonesia: Antara Perlindungan Dan Pembagian Manfaat, Miqdad Abdullah Siddiq

Jurnal Hukum & Pembangunan

The commercial utilization of Traditional Knowledge is intended for the benefit of the national economy, especially for the welfare of indigenous peoples as the owners of Traditional Knowledge. Indonesia, which has many indigenous peoples, also has a widevariation of Traditional Knowledge. With the opening of opportunities for parties other than the owners of Traditional Knowledge to utilize the Traditional Knowledge, setting the regulatory governing the commercialization of Traditional Knowledge becomes increasingly strategic. So that the management of the protectionfor Traditional Knowledge in Indonesia has become a very urgent need. In the absence of adequate Traditional Knowledge protection regulations, Traditional Knowledge-related …

Korematsu Overruled? Far From It: The Supreme Court Reloads The Loaded Weapon, Lorraine Bannai

Seattle Journal for Social Justice

No abstract provided.

Uncompromising Hunger For Justice: Resistance, Sacrifice, And Latcrit Theory, Edwin G. Lindo, Brenda Williams, Marc-Tizoc Gonzalez

Seattle Journal for Social Justice

No abstract provided.

A Painful History : Symbols Of The Confederacy: A Conversation About The Tension Between Preserving History And Declaring Contemporary Values 1-19-2018, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

Newsroom: A Painful History 1-19-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Dismantling Monuments, Richard Henry Seamon

Articles

The Antiquities Act of 1906 authorizes the President to "declare" certain objects "to be national monuments," and to "reserve parcels of land" to protect those national monuments. The Act does not expressly authorize the President to reduce or rescind a monument established by a prior President under the Act, and recent actions by President Donald Trump raise the question whether the Act impliedly authorizes such reductions or rescissions. The majority of legal scholars who have studied this question have said no, the Act does not grant such implied authority. This Article takes the contrary position. The President's authority under the …

Undocumented Citizens Of The United States: The Repercussions Of Denying Birth Certificates, Anna L. Lichtenberger

St. Mary's Law Journal

Abstract forthcoming

Revisiting Seminole Rock, Jeffrey A. Pojanowski

Journal Articles

The rule that reviewing courts must defer to agencies’ interpretations of their own regulations has come under scrutiny in recent years. Critics contend that this doctrine, often associated with the 1997 Supreme Court decision Auer v. Robbins, violates the separation of powers, gives agencies perverse regulatory incentives, and undermines the judiciary’s duty to say what the law is.
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/="/">This essay offers a different argument as to why Auer is literally and prosaically bad law. Auer deference appears to be grounded on a misunderstanding of its originating case, the 1945 decision Bowles v. Seminole Rock. A closer look at …

"So Far As War Allows": Why The Al Mahdi Conviction Is Unlikely To Stem The Pace Of Cultural Destruction Perpetrated By Non-State Actors, Jessica E. Burrus

Washington International Law Journal

In September of 2016, Ahmad Al Faqi Al Mahdi was convicted in the International Criminal Court (“ICC”) for the intentional destruction of several World Heritage sites during the 2012 conflict in Timbuktu, Mali. This conviction was hailed as a breakthrough after years of frustration with the lack of enforcement of international laws prohibiting the destruction of cultural property. It was also the first conviction of its kind, and advocates of cultural preservation have celebrated it as a much-needed general deterrent in North Africa and the Middle East, where iconoclasm has become a favorite tactic of various state and non-state actors …

Prosecuting Members Of Isis For Destruction Of Cultural Property, Cody Corliss

Florida State University Law Review

This Article examines the potential for war-crime charges against members of ISIS for “culture crimes” in Syria and Iraq, specifically for group members’ participation in the intentional destruction of cultural and historic sites in the Middle East. This Article begins by tracing the history of legal efforts to protect cultural property and the recent developments in international law that have transformed “culture crimes” into chargeable war crimes. After examining the history of legal efforts to protect property, this Article turns its focus to ISIS and the group’s role in destroying cultural property that it deems antithetical to its brand of …

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

William & Mary Law Review

No abstract provided.

Blood Antiquities: Preserving Syria’S Heritage, Claire Stephens

Chicago-Kent Law Review

The recent large-scale looting of archaeological sites across Syria at the hands of ISIS has brought the devastating effects of the illegal international antiquities market into stark relief. Not only are these illicit excavations irreparably destroying human history, they also enable ISIS to sell Syria’s cultural property to fund their jihad. This note examines the international and domestic laws that regulate this illicit antiquities trade. This note further identifies that, while these laws provide a meaningful legal framework, their ineffective implementation prevents them from effectively regulating the illicit antiquities market. Without effective market regulation, buyers in art market countries will …

Killing A Culture: The Intentional Destruction Of Cultural Heritage In Iraq And Syria Under International Law, Caitlin V. Hill

Georgia Journal of International & Comparative Law

No abstract provided.

The Time Is Now: Why The United States Should Follow The United Kingdom's Lead And Implement A Federal Nazi-Looted Art Spoliation Advisory Panel, Chloe Ricke

Georgia Journal of International & Comparative Law

No abstract provided.

Tribal Jurisdiction—A Historical Bargain, Matthew L.M. Fletcher, Leah Jurss

Maryland Law Review

No abstract provided.

Untangling The Court’S Sovereignty Doctrine To Allow For Greater Respect Of Tribal Authority In Addressing Domestic Violence, Lauren Oppenheimer

Maryland Law Review

No abstract provided.

Traditional Ecological Disclosure: How The Freedom Of Information Act Frustrates Tribal Natural Resource Consultation With Federal Agencies, Sophia E. Amberson

Washington Law Review

When a federal or state agency administers environmental laws, such as the Endangered Species Act, the agency often consults with tribes. During these consultations, tribes often disseminate traditional ecological knowledge (TEK)—knowledge acquired by a tribe that is a mix of environmental ethics and scientific knowledge about tribal use. However, these consultations may be susceptible to disclosure under the Freedom of Information Act (FOIA). The purpose of FOIA is to inform the public. Because TEK often contains sensitive information about tribal social, cultural, psychological, and economic factors, tribes do not want this information available to those who are not members of …

Res Extra Commercium And The Barriers Faced When Seeking The Repatriation And Return Of Potent Cultural Objects, Sara Gwendolyn Ross

American Indian Law Journal

No abstract provided.

How Photographs Infringe, Terry S. Kogan

Utah Law Faculty Scholarship

Courts and commentators have lavished attention on the question of what makes a photograph original and entitled to copyright protection. Far less attention has been devoted to the issue of how photographs infringe. This is the first Article to systematically explore the different ways in which a photograph can steal intellectual property. Photographs can infringe in two ways: by replication and by imitation. A photograph infringes by replication when, without permission, a photographer points her camera directly at a copyright-protected work—a sculpture, a painting, another photograph—and clicks the shutter. A photograph can also infringe by imitation. In such cases, the …