Looking at the precedent set forth in the United Nations’ Declaration on the Rights of Indigenous Peoples, an enormously important component of native groups’ cultural sustainability concerns the preservation of cultural heritage through specific legal protections. At a basic level, according to the view of the U.N. General Assembly, one of the responsibilities of governments is to have “effective mechanisms” in place which allow indigenous groups’ cultural aspects of both a tangible and intangible nature to be protected from “[being] taken without their free, prior and informed consent or in violation of their laws, traditions and customs” (6). When it comes to the broader issue of sustaining indigenous cultural practices and artifacts, a more specific question that arises is how this goal can be achieved, especially in the face of often hostile or incompatible legal regimes. This is a problem which has provoked numerous theoretical and practical answers from indigenous groups as well as their allies. In the volume Valuing Local Knowledge, anthropologist Thomas Greaves notes that “indigenous people, through their experimentation, are transforming the scope of intellectual property rights” (27) by either reshaping it to suit their own needs or developing more serviceable alternatives. Drawing on wisdom from communities like the Coast Salish, Secwepemc, Ktunaxa, and Hul’qumi’num people, various researchers have shown how tribes themselves are reshaping intellectual property rights (IPRs) in precisely the manner that Greaves describes. Ultimately, the examples of these and other First Nations tribes in Canada and British Columbia are instructive in demonstrating that a system of specifically-constructed contractual agreements and the upholding of customary traditions can provide effective alternatives to Western notions of intellectual property (IP) law. If such approaches were followed in other indigenous contexts, it is arguable that the people within these cultures could better ensure the protection of their communal knowledge, artistic achievements, and biological resources from the threat of uninvited, external appropriation. At the same time, the reality of such a situation would also uphold indigenous traditions over and above ones that are typically rooted in Western, colonialist legacies.
Regarding indigenous peoples in particular, an abundance of scholarly treatments have been provided over the past three decades that endeavor both to examine existing legal obstructions to indigenous protection and offer a path forward if cultural heritage is to ever be maintained and guarded in a truly satisfactory way. Within this paper, however, a special emphasis has been placed on indigenous groups within Canada because of the country’s being considered to have one of the strongest legal regimes in the world with respect to IPRs (Property Rights Alliance). While a reasonable expectation might be that such a climate would inevitably bring about a higher degree of protection for indigenous interests, this has often not been the case. Because of a persisting environment in which state interests have preeminence over those of minority groups, the aforementioned U.N. goal of heritage protection agreements that are “developed [by states] in conjunction with indigenous peoples” (United Nations 6) is time and again replaced with an imposition of largely irrelevant or inapplicable legal structures. In Canadian territories, where there are a total of 634 recognized First Nations tribes (Assembly of First Nations) that contain approximately 851,560 individuals (Statistics Canada), such shortcomings in maintaining sufficient legal protection for unique cultural situations have the effect of impacting scores of indigenous groups and all their respective members. In light of this, the purpose of this research is to showcase the instrumentality of indigenous wisdom traditions and non-legal, community-oriented mechanisms in addressing particular cultural heritage concerns that Western legal paradigms have failed to address.
Categories of Indigenous Cultural Heritage
An understanding of the unique needs of indigenous peoples when it comes to intangible property and cultural heritage is undoubtedly enhanced by first appreciating what sorts of classifications exist for such elements. In his 1996 article “Tribal Rights,” Thomas Greaves relates how cultural knowledge encompasses a wide array of categories, even though attention has been paid more in recent years to medicinal and agricultural features unique to indigenous cultures which have been appropriated for larger commercial purposes. Additional features under the umbrella terms of cultural heritage and cultural knowledge include sacred sites and materials of ceremonial significance, knowledge of a frequently undisclosed nature, oral traditions, and ancestral remains of a sensitive and spiritual sort (Greaves 28-30). Catherine Bell and Heather McCuaig, in conjunction with the Ktunaxa/Kinbasket Tribal Council, provide similar insights into what types of cultural heritage features exist among indigenous peoples that are considered worthy of community protection. They specifically use the term “cultural resources” to distinguish those things of significance and worth to each culture apart from a concept centered on merely notions of “property” (Bell and McCuaig 315). Aside from unique roles assigned to tribal individuals themselves, cultural resources within an indigenous context are described as including “traditions, ceremonies, and practices … physical items or cultural use areas on the land … stories, legends, songs, language and language programming” (315).
The Coast Salish serve as an example of a people group with even more specific classifications of their own, ones which are beneficial in further analyzing what types of protection ought to be afforded to one category of intangible or tangible property over another. In his presentation for a 2003 World Intellectual Property Organization (WIPO) conference, McGill University scholar Brian Thom touches upon three specific categories of cultural heritage as they are understood within a Coast Salish context. Although these specific categorizations are born out of Thom’s scholarship concerning the Central Coast Salish in particular, they are instructive in providing a practical guideline by which distinctions between three types of intangible property can be understood. The Coast Salish, he explains, comprise a great number of tribes located in the southwestern part of British Columbia, some of whom include the Musqueam, Chilliwack, Squamish, and Nanaimo (2). Within the Salishan language, the first domain of intangible property—which encompasses family-specific knowledge of a private, specialized sort— is designated snew. The holders of snew, aside from families themselves, are typically individuals who have an elevated role of some sort that is born out of either supernatural endowment or one’s position as a professional tradesperson (6-7). A second category described by Thom, that of s’exwtén, is the banner under which ritual resources fall. This specifically includes images as well as the objects from which such images are drawn (8). Quoting ethnographer Wayne Suttles, Thom describes how access to such property and the knowledge associated with it are “restricted by primogeniture or other means to certain members of a lineage” (qtd. in Thom 8). Privilege-related property, which is a third category known as xwnets’álewem among the Coast Salish, includes intangible properties like songs, family names, and undisclosed words that are specific to individual households but are often shared and demonstrated within a public arena like the tribal potlatch (10).
With the Coast Salish in particular, Thom insists, it is clear that some type of “economic value” (11) is associated with at least the third category of publicly accessible intangible property. As a result, it is entirely accurate to consider the taking of such resources without tribal or household permission as a considerable act of theft. Suttles, for instance, has described how compensation for something of great value can be provided in Coast Salish culture with a family song; likewise, an intangible xwnets’álewem resource of another sort is able to be passed down to descendants as part of an inheritance (qtd. in Thom 11). Ultimately, as will be discussed later in this paper, Thom argues for the integral role of local, customary law in informing approaches to the protection of cultural heritage. For him, this principle is something that holds true for those within the Coast Salish communities as well as other indigenous groups. Overall, the interests of such indigenous peoples in maintaining effective intangible customary property protection can be shown to have been ill-served by Western IPR schemes.
Transfer Agreements in Skinnipiikani-Nitsiitapii Thought
The research of social anthropologist Brian Noble has provided further insight into indigenous conceptions of ownership and features of economic exchange that exist between groups and individuals. Among the Skinnipiikani-Nitsiitapii of Alberta, for instance, one guiding notion related to tribal features and practices is that of transferability. As Noble explains, it is entirely acceptable within this culture that, under the proper circumstances, authorized individuals or larger entities can obtain a measure of “rights” to intellectual artifacts and traditional knowledge by some act of reciprocation (260). As a matter of clarification, specifically because of linguistic and conceptual differences, Noble is careful to insist that this form of “keepership” has only a cursory similarity to Western ideas of “property” (267). Nonetheless, the ideas of these tribes do provide enormous insight into more advantageous native principles for guiding indigenous IP protection.
One Skinnipiikani elder, Reg Crowshoe, provides a powerful analogy relaying how knowledge practices might be transferred with compensation being received. Crowshoe compares the offering of such intangible resources to the relationship between a professor and a tuition-paying student, noting that “if I had the knowledge to teach [another] the ABCs … then he’ll pay me a tuition or a fee. If he’s going to use his knowledge of those ABCs to expand his education, then he’s paid me Siikapistaan [a fee]” (293-94). His explanation suggests that the sharing of knowledge by a knowledge-holder is entirely possible, inasmuch as the Skinnipiikani view centers on the inclusion of adequate and appropriate compensation in an exchange of IP. The precise form that this compensation can take is multifarious (296). In theory, this same principle would be able to guide matters related to the transfer or loan of various other types of intangible indigenous resources, such as artistic designs, music, names, designations, and so forth.
Noble goes on to suggest that one fundamental manner in which indigenous intangible property interests can be protected is to recognize the significant parallels between native deliberative and negotiation practices and Western legal ones. This must be done, however, while upholding the sovereignty of indigenous peoples to decide how their own resources ought to be held and circulated. In order to achieve this, he insists, the transfer guidelines that inform tribes like the Skinnipiikani ought to be “accorded the same degree of practical authority and autonomy as is Canadian common law” and there should be “a dialogue between laws” that exists rather than supremacy of one system over the other (304). In order to truly begin developing more effective approaches to intangible property protection for First Nations tribes and other indigenous peoples, it is crucial to look to these groups’ own conceptions about issues of heritage and the nature of possession. This, in turn, will generate awareness of the ways in which traditionally Western IP protection has not fully satisfied the complex interests of such groups.
Shortcomings of Typical IP Protection
Within the context of First Nations peoples, there are a number of difficulties that have arisen which prevent comprehensive or adequate protection of cultural heritage and intangible property. In the 2009 collection Protection of First Nations Cultural Heritage, for example, University of Victoria scholar Kelly Bannister raises the issue of how aboriginal Canadian communities’ misunderstanding or ignorance of IP protection can weaken its potency. At the most basic level, tribal members are often found to be ill-equipped for deciphering which specific sorts of traditional knowledge and concepts are applicable under an IP law paradigm. In addition, aside from the difficulty inherent in uniting communal notions with contrasting ones of individual monopoly, there are also issues related to “time periods of ownership” and the fact that traditional practices and intangible features often fall short of various “criteria for inventiveness/originality” (281-82).
Within the same volume as Bannister, it is perhaps law and native studies scholar Val Napoleon who explains the dilemma surrounding IPRs most succinctly:
So far, various formal intellectual property law regimes have not enabled indigenous peoples to effectively protect their cultural property from encroachment or appropriation, and much of the literature is critical of the chronic inadequacy and inappropriateness of these measures (371).
Drawing from previous research conducted by Australian author Kamal Puri, Napoleon outlines several key features that must be present in cultural heritage protection measures for them to be the most serviceable to indigenous needs. These include, but are not necessarily limited to: The prevention of inauthentic creations from external sources meant to mimic the originating culture’s creations; an acknowledgment of collective systems of ownership; an assurance that tangible items taken without permission are accounted or compensated for; and an emphasis on using the most contextually relevant measures in order to most effectively fulfill all of the aforementioned requirements (372).
As even the above list indicates, a consideration that cannot be ignored for indigenous groups living in the midst of Western government is the role that ownership actually plays in such cultures. In their monograph Indigenous Peoples and the Collaborative Stewardship of Nature, Ross et al. describe the difficulty inherent in protecting knowledge ownership within those aboriginal contexts where non-Western notions of property are prevalent. The authors include this problem within a longer list of “‘epistemological barriers’ and ‘institutional barriers’ to indigenous involvement in natural resource management” (96). It is arguable that, even in a postcolonial era, the effects of colonialism’s under-girding legal apparatus still exert an enormous influence in keeping many indigenous peoples from being afforded much defense against outside usage of “traditional ideas, innovations, and techniques” (102) that are unique to these communities.
The salient issues in enacting intangible property rights measures, of course, have centered on trying to balance a general indigenous propensity toward collective ownership with the individual ownership notion tied up in systems of IPRs. Ross et al. point out that Western governments and legal institutions have too often shown indifference toward pioneering alternative approaches for protecting indigenous property in the face of these unconventional considerations. As one initial solution that is possible, they discuss the incorporation of co-management as a way of handling tangible and intangible resources, something which is typically enacted through the use of nonbinding agreements between an indigenous group and some institution, usually governmental (207). Some examples of this have been seen even among First Nations tribes; in practice, however, the fact that such agreements are enacted in the midst of “state-based power relationships and structures” (216) has often severely limited the amount of possible negotiation on agreements and has allowed an imbalance of input and influence to be maintained.
Darrell Addison Posey attempts to describe the problems of Western-rooted IP protection as perceived by indigenous groups themselves. In reference to objectives developed as part of the 1992 United Nations Conference on Conservation and Development (UNCED), Posey notes the unreasonableness in expecting that the same nation-states who have deprived indigenous peoples of rights in the past—through ethnic cleansing, dislocation, and environmental destruction—can somehow be trusted to uphold their rights in the present day. He describes a number of additional reasons why indigenous interests in cultural heritage protection cannot be served by wholly relying on Western IPR systems. First, there is the profound disconnect that exists between many indigenous cultures’ views of collective rights and the more monopoly-oriented privilege afforded by IPRs granted to individuals. Second, the primary purpose of IPRs and commercial copyright over resources and ideas has been to facilitate commercial interests. This type of system, then, is considered to be in opposition to indigenous groups’ general interests in entirely barring the appropriation and outside spread of cultural heritage resources (39-40). A third vital concern raised by Posey is how, ultimately, Western IPRs fall short in appreciating values of worth that transcend market considerations: those of a “spiritual, aesthetic, or cultural” nature that are born out of resources’ various “ties with cultural identity and symbolic unity” (40). Inevitably, like other scholars, Posey is compelled to suggest that the solutions to these problems can only be found through an “increased recognition of indigenous peoples and their knowledge,” as well as considering “alternative concepts of property, ownership, and value” (43) when endeavoring to find ways of protecting traditional knowledge systems and cultural heritage resources from undue misuse and appropriation.
Possibilities for Extra-Legal Protection
As a reaction to the inadequacies within much of Western IP law, there have been a multitude of alternative measures undertaken by individual First Nations communities, their larger associations, and outside non-indigenous institutions. The research of Kelly Bannister related to this area is enormously helpful in encouraging approaches outside of Western legal traditions, ones in which institutional and community governance fulfill some of the duties required for ensuring cultural heritage resource protection. In the absence of legal mechanisms with relevance to indigenous interests, Bannister insists, the surest method for such groups to protect the elements of their cultural heritage has often been to simply “keep them secret” from others (282).
But when maintaining seclusion and secrecy is not possible, of course, there must be some alternative systems in place to work outside of those within legal regimes that are found wanting. One of these is university protocols, which are based on codified ethical standards. Among various Canadian universities, for instance—which regularly carry out research involving human participants, some of whom are indigenous—there are academic standards of a voluntary nature that regulate how cultural heritage ought to be treated. Something which is consistently paramount in such measures is an obligation to always defer to each indigenous group’s own interests whenever “property or private information belonging to that group is studied or used” as well as to maintain a “partnership with the aboriginal group” throughout the entire duration of research projects (283-85). A variety of public statements codified by tribes themselves have also served as guidelines which enhance clarity regarding specific indigenous concerns and priorities, especially when it comes to academic study initiatives. Consistent across all of these declarations which exist is an emphasis on indigenous peoples’ prior informed consent and some mode of compensation or arrangement for incurring future benefits from others’ usage of native resources (287).
Bannister goes on to explicate how a number of First Nations tribes themselves have been the initiators of research protocols dictating parameters for cultural heritage usage in scenarios where this would be needed. These are especially important to consider because they demonstrate strong instruments and measures that are negotiated outside of state legal structures, yet provide tribes with far more authority over research initiatives and their resulting usage of invaluable cultural heritage resources. The first type of community-based agreement, a “traditional knowledge protocol,” grants the enacting First Nation responsibilities over cataloging traditional knowledge and then allowing it to be used by researchers or outside parties if such a thing is agreed upon. Another type, known as a memorandum of understanding (MOU), is a formal but still extra-legal way of demonstrating an alliance between two or more parties, typically research-conducting universities and the tribes with which they are collaborating (291-93). The enacting of agreements such as these, Bannister insists, is something which “validly establishes an expectation that community capacity exists to implement [research] content” and confers “restricted access” to particular researchers “for specific agreed upon uses” (297). She discusses the examples of the Kaska and Hul’qumi’num First Nations, who have benefitted from having their own community members—rather than external legislative bodies—presiding over the evaluation of traditional knowledge protocols and MOU agreements, as well as working to catalog intangible cultural resources themselves. Both groups have gained enormous advantage by employing aboriginal individuals with legal expertise who were capable of evaluating all of these aspects (297-98), thus ensuring that their traditional knowledge and cultural heritage interests could be the most adequately protected.
Customary Law Arrangements Among the Gitxsan
Similarly to the aforementioned views of Brian Thom, which are born out of his research on the Coast Salish, University of Alberta professor Val Napoleon emphasizes how an incorporation of customary tribal law into protection measures can more effectively safeguard their own artifacts of cultural heritage. She focuses specifically on the Gitxsan, who reside around the Skeena River in British Columbia. The Gitxsan are an important case study for demonstrating how greater recognition of local, customary structures would assist in protecting cultural heritage, especially where legal pluralism also exists. Within Gitxsan culture, specific intangible artifacts and cultural features are understood as being held and managed by individual community households. These include things like “crests, names … songs and laments, and dramas” (376). The maintenance of such specialized possession of cultural heritage by particular tribal members is dependent upon a traditional system of law, called ayook, which exists outside that of surrounding, centralized states (382).
The Gitxsan, in fact, have already had to deal with disputes within their culture related to intangible property being taken without the rightful owner’s consent; for instance, in the unauthorized taking of family crests by tribes outside of the Gitxsan. Traditionally, the response to appropriation of this sort would be to sit down at a feast with the offending parties. This allows an opportunity for Gitxsan house members to understand the other people’s interest in displaying the crests and to directly grant permission for them to do so (385). Napoleon suggests that, eventually, an environment of national law in Canada that recognizes the legitimacy of indigenous tribes in regulating cultural heritage usage through approaches like this would protect their interests in ways that Western IP law simply cannot.
Cooperative Agreements and Limited Licensing Privileges
Another way in which aspects of cultural heritage have seen greater protection is through carefully crafted, cooperative agreements made directly between tribal bands and various parties. What remains most important in the effectiveness of such agreements is that mutuality and equality of input exists between all of the contributing parties. While this has been difficult to ensure when it comes to partnerships involving the Canadian government—largely due to policy-related and legislative hindrances that maintain particular roles of power—agreements enacted between tribal bands and museums have demonstrated success. An example of this has been seen among the Ktunaxa/Kinbasket people, who inhabit several parts of southern British Columbia and portions of the northern United States. This is an environment where many tribal members will readily acknowledge that government legislation “is ineffective and does not protect traditional use and other heritage sites” as thoroughly as desired (Bell and McCuaig 337). Much initiative, however, has been taken by historical institutions like the Royal British Columbia Museum, who have made considerable efforts to document the indigenous artifacts they already have in their possession, inform the relevant tribes from which they originated, and enact a process through which these artifacts can be rightfully returned. Similar approaches have already begun to be implemented in regions outside of Canada (351-52).
Brian Thom focuses on the role of binding contractual agreements between tribes and researchers in securing more effective legal protection of intellectual and collective aboriginal property. One example of ts’exwtén integrity and ownership being upheld in a Coast Salish context has been seen in understandings established between these peoples and local museums. After negotiating with the McCord Museum and University of British Columbia Museum of Anthropology, for instance, the rightful owners of ritually significant masks saw to it that they would never be allowed on display in publically accessible collections. Whereas artistic creations of other tribes have often been subject to appropriation by massive commercial interests, this type of agreement has been crucial in preventing the same outcome for the Coast Salish peoples (13). As Thom explains in a 2006 report to Ottawa’s Department of Canadian Heritage, the Coast Salish have also made use of offering limited licensing privileges to researchers who record audio and video for linguistic preservation purposes. Such agreements between tribal leaders and university staff have been a critical way of providing, even in addition to state-conferred copyright privilege, a specific and time-limited ability for researchers to include discussions on indigenous knowledge and cultural heritage resources within academically important publications (7-10).
Finally, in the research volume Indigenous Intellectual Property Rights: Legal Obstacles and Innovative Solutions, British Columbian scholars George P. Nicholas and Kelly P. Bannister provide a brief survey of instructive instances in which First Nations groups have allied with larger organizations in order to better assert control over heritage and intangible property protection. Arrangements centered on jointly-held copyright, for example, have proven enormously helpful for groups like the Secwepemc, who secured greater protection for traditions and wisdom of an ethnobotanical nature by dividing copyright privileges between themselves and the scholars with whom they collaborated. Nicholas and Bannister highlight how future initiatives on the part of scholars and First Nations groups should focus on particular aims to better ensure effective stewardship over cultural heritage resource usage and protection. These include joint participation, strengthening of local capabilities, and “explicit power sharing” when it comes to enacting and maintaining agreements concerning these groups’ resources (326-29).
For indigenous tribal communities in general, there are a number of injurious effects from the unauthorized and improper use of their cultural heritage resources. As Deidre Brown and George Nicholas describe, these include:
. . . . loss of access to ancestral knowledge, loss of control over proper care of heritage, diminished respect for the sacred, commercialization of cultural distinctiveness, uses of special or sacred symbols that may be dangerous to the uninitiated, replacement of original tribally produced work with reproductions, threats to authenticity and loss of livelihood, among other things (309).
The most pertinent issues in the protection of cultural heritage resources continue to be centered on how a greater incorporation of actual tribal interests can exist in IP law measures, how tensions between tribal confidentiality and public awareness might be relieved, and how compensation or benefit-sharing can be ensured whenever intangible property resources are improperly used by external parties. Continuing to draw from indigenous wisdom in the formation of public policy and innovative solutions to the problem of cultural heritage protection will continue to be crucial in order to adequately serve the needs of those groups who are most vulnerable to appropriation without having a privileged status of access to typical state-capitalist protections. While state-based solutions fall short specifically because of the inequalities inherent in more massive political power structures, privately-mediated solutions have also proven inadequate at times because they are absent of equally-represented input from the affected tribes themselves. Looking to native insight regarding these issues, on the other hand, might better inform regions, countries, and localities as to how the significant gaps that remain in protecting indigenous cultural resources can be filled within the areas of law and civil society.
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