The rise & fall of the Cultural Property Law Blog, and my makeshift education in archaeology law.

Posted on September 21, 2008


In recent weeks, I have found myself questioning my choice to call this “The Cultural Property Law Blog.”  As I consistently argue that the property framework does not work to resolve disputes over ancient artifacts, is it not contradictory to implicitly legitimize that framework in the heading under which I write?

Before going to law school, I was a dealer in antique furniture and an archaeologist.  I earned a B.A. in Art History & Archaeology from the University of Maryland at College Park.  During my studies there, I wrote a 6-credit seminar paper evaluating archaeological evidence of pre-Columbian transoceanic contact.  After graduation, I went to work for the U.S. Forest Service doing archaeological surveys.  Those were high times for a young gal obsessed with all things ancient.

When I decided to go to law school, it was with the goal of studying “archaeology law.”  I did not know what that meant, but I knew I would figure it out along the way.  Alas, Howard Law did not have a relevant course (nor did Vermont Law, which I attended on exchange), but I worked in an education nonetheless.

For my seminar papers, I created any possible connection, however tenuous, to archaeology.  Critical race theory became critical race theory via the artwork of slaves.  International business transactions became a study of the auction industry’s policies and practices in dealing in ancient artifacts.  Accounting and business fundamentals generated an extensive profile of Odyssey Marine Exploration, an outfit that discovers and recovers deep-sea shipwrecks and their treasures.

After law school I took a clerkship for a new judge at the Superior Court of the Virgin Islands.  I had always told myself that no way, no how, was I going to take a clerkship.  Dressing up in stuffy suits?  Showing up somewhere at the same time every day, and sitting at a desk?  Not for me!

When a friend sent me the vacancy ad, on a lark, I Googled the name of the lawyer who was soon to take the bench – Francis J. D’Eramo.  Imagine my surprise when my quick Google turned up his Amazon reviews – all on archaeology books.  I was toast.

My clerkship turned out to be a wonderful experience, made all the more enjoyable by regular discussions on the rise and fall of the Roman Empire over lunch.  The Judge was eager to provide feedback on my seminar papers that were, during this time, turning into publishable articles.  And he was happy to grant me administrative leave to attend a Historic Preservation Law Conference in D.C.

At some point during my makeshift education in archaeology law, I stopped referring to it as “archaeology law.” I realized why all my pre-law Google searches of that term had turned up so very little.  Archaeology law was, in fact, “cultural property law” or “historic preservation law” or sometimes “Native American law.”  I stood corrected.

Well, I bought it.  What else is an aspiring archaeology lawyer to do?  Fight the entire system?  Refuse to call it “cultural property law” at all?  Render her writing nearly unGoogle-able?

I am slowly working my way through Who Owns Antiquity? by James Cuno.  I get so worked up every time I read a chapter that I have to pace myself so I am still a tolerable living companion.  But there is one thing that Cuno and I agree on – that cultural property is a political construct.

I have never been politically minded.  I do vote, but I vote for individuals, not for parties and certainly not for political positions.  And here is where cultural property law turns on me – as it pertains to archaeology, it frequently becomes a study of the intersection between archaeology and politics rather than archaeology and law.

Motivated by my desire to return to the place where I loved the Elgin Marbles, even with and perhaps because of the controversy that mars them, I have evaluated what the scarcely used term “archaeology law” means.  And I conclude it is more applicable to my interests than the term “cultural property law.”

In the casebook Archaeology, Relics, & the Law by Richard B. Cunningham, the four chapters are as follows:

I. Discovery & Acquisition of Artifacts
II. Protection and Control of Artifacts
III. Recovery and Repatriation of Relics
IV. Protection and Custody of Human Remains

Did anyone else get all excited just reading the titles of the chapters in this casebook?  I did!

So much of the current discussion in cultural property law is on the ownership aspect of artifacts and, à la Cuno, this aspect is born of political construct.  Cunningham devotes a mere 62 pages of his 844-page whopper to recovery and repatriation.   But the discussion is actually interesting!  The Elgin marbles, the Archimedes Palimpsest, murals from Teotihuacán… I’m tempted to stop writing right now just to delve back into the cases and essays.  Don’t worry, though; I’m on a mission.  (I won’t blink.)

Well, I am rejecting that system, starting here and now.  I am returning to the subject area that I love, a place where discussions are productive, aimed at creating a positive result.  I have little interest in tackling a black hole of unsubstantiated demands and competing claims or in following the Great Fight between repatriators and museum directors. I am returning to Archaeology Law.

I maintain that archaeology law frequently intersects with:
– Cultural property law;
– Historic preservation law;
– Environmental law;
– Land use law;
– Marine / ocean resources law;
– Museum law;
– Native American law; and
– Natural resources law.

I would not consider archaeology law an umbrella term over cultural property law and historic preservation law because those fields concern areas outside of its purview.  For instance, cultural property law often concerns stolen artwork.  To the extent that the artwork is modern, this would not implicate archaeology law.  Further, historic preservation law may work to preserve buildings by 20th century architects such as Frank Lloyd Wright.  Noble, indeed, but not archaeological.

Nor is “archaeology law,” as I have painstakingly learned, interchangeable with “cultural property law.”

In my act of reclamation, I note that I do not have to turn in any membership cards.  The LCCHP is the Lawyer’s Committee for Cultural Heritage Preservation.  The ABA section squeaks by as the Art & Cultural Heritage Law Committee.  And, come to think of it, neither sent me a membership card anyway.

I know the treatise on the name change was not entirely necessary, but now you know where I am coming from.  I’m back in the cozy haven of archaeology law, with my ancient manuscripts, my ceramic fragments, and my decaying shipwrecks.

It sure is good to be home.