This edited volume represents the culmination of six years of social science research, funded by Canada’s Social Science and Humanities Research Council, which examines approaches to the protection and repatriation of First Nations cultural heritage. The project, directed by Catherine Bell (University of Alberta Faculty of Law) and Robert Paterson (UBC Faculty of Law), brought together a team of more than a dozen scholars in Aboriginal law and anthropology highly respected for their work with First Nations, several of whom are members of First Nations themselves. This is the companion volume to Bell and Paterson’s Protection of First Nations Cultural Heritage: Laws, Policy, and Reform, which contains an overview of current laws and policies governing First Nations cultural heritage and prospects for reform. In contrast, First Nations Cultural Heritage and Law foregrounds the voices and concerns of First Nations in discussions about the principles, rights, and responsibilities that undergird their struggles to protect cultural heritage.
Bell and her co-editor Val Napoleon (University of Alberta Native Studies and Faculty of Law) have compiled results from seven ethnographic studies conducted with First Nations in Alberta and British Columbia, which are further complemented and contextualized with chapters that reflect on themes emerging from the case studies. The result is a groundbreaking volume not only because of its rich content, but also because of its methodology, which uses ethnographic approaches to gather First Nations perspectives on heritage law and sets an inspiring example for participatory research in this field.
In the introduction, Bell and Napoleon lay out the objectives of the research and describe its methodological foundations. The lack of adequate or culturally appropriate protection for heritage sites, practices, or objects under Canadian law has amplified the cultural trauma experienced by First Nations over the past century. Bell and Napoleon emphasize the need for legislation and policies that move beyond “respectful coexistence” of Canadian and First Nations law and jurisdiction. Western legal concepts of “cultural property” and “ownership” do not begin to describe the complex relations of First Nations with cultural heritage. At a time when recognition of Indigenous law by Western courts and institutions is finally becoming possible, First Nations want their own laws to govern the return of property and other forms of restitution, and many feel that government should bear some of the burden in cost and reparations.
The chapters in the first half of this extensive volume share findings from each case study. All of these projects were conducted in the methodological tradition of participatory action research, which seeks to generate tangible, practical benefits for participants. Members of First Nations communities identified the issues they wanted to explore and were involved throughout the process, from research design to formally reviewing final reports. Researchers complied with First Nations research protocols whenever possible. When these conflicted with requirements set by the funder or an academic institution, negotiation or compromise became necessary. Terms of research—such as where information would be deposited or who owned copyright to publication—were spelled out at the beginning of the study and revisited throughout the research process. Because of the time spent up-front defining these terms, very few areas of disagreement arose. Some of the biggest challenges related to the appropriate use of language and terminology.
The studies employed ethnographic methods, with the exception of Susan Marsden’s ethnohistorical study of Tshimshian oral traditions (chapter 3). Interviews and talking circles were used to gather information, though the format varied across cases according to the preferences of the study community. Often interviews were conducted by a research assistant from the First Nation community, sometimes in the Native language. Transcripts were subsequently analyzed for themes, concepts, and illuminating accounts. Footnotes in the volume’s text refer the reader to sections of the original transcripts that contain additional information on a specific topic. The case studies clearly reflect enormous time, care, and effort placed in the participatory research process and the vital role of First Nations as contributors, initiators, and research partners, notably as co-authors of many chapters.
The introduction also includes a candid discussion of the challenges of doing research that is truly participatory. The experiences of those involved with this project indicate that academic research, as currently conceived at least in Canada, is not really very compatible with methodologies that seek to be participatory or collaborative, especially at the community level.
Chapter 1 gathers perspectives from members of the Namgis Nation and U’mista Cultural Society about protection and repatriation of Kwakwaka’wakw heritage items alienated during the period when the potlatch was banned by the Canadian government. For the Kwakwaka’wakw, reviving the potlatch is critical to their well-being and identity. They have twice filed a claim for compensation for harm created by the potlatch ban, and their appeals for repatriation of confiscated regalia address some of the injustices and trauma caused by the ban. The Kwakwaka’wakw estimate that today 50% of their “cultural property” lies outside of Canada, and more than 70% outside of their communities. They want not only objects back, but also copies of photos and written or recorded material. The interviews in this chapter clearly express the rights and responsibilities associated with custodianship and transfer of property and the deep connection of objects, ceremony, song, dance, and language with cultural survival. Community members also discuss concerns about the inaccuracy of information in museum records and the appropriation of Native designs for commercial purposes. Their words are filled with expressions of loss, yet also of hope that the return of items will restore the health and well-being of their community.
Chapter 2, based on interviews with members of the Luuxhon House of the Gitxsan of northern British Columbia, highlights the concept of trusteeship and other laws related to crests, oral traditions, and intangible possessions. A sophisticated system of Indigenous law emerges in which the right to display certain images and the obligations associated with these rights are more important than the object itself. People are no longer considered Gitanyow once they stop following these laws. An important responsibility of hereditary leaders is the formal performance of oral traditions (adaak and adawx), which are linked to specific histories and lands, much like a legal deed. This chapter also presents some innovative ways that Indigenous concepts of belonging are being honored in contemporary situations. For example, the Luuxhon make button blankets with generalized crest designs for communal use, and they are willing to allow museums to keep their old objects if new replicas are created for them.
Susan Marsden’s ethnohistorical study featured in chapter 3 offers an insightful review of Tshimshian oral traditions or adawx, which teach members of the different Houses about their relationships and responsibilities to land, animals, ancestors, and one another. Marsden has also scoured early records to locate accounts of Tshimshian perceptions of Europeans when they first encroached on Native territories. Her research lends social and historical context to the potlatch ban and the forced taking of children to residential schools. This chapter illustrates the rich contributions that studies of oral history and early documents make to understanding both past and present-day identities and attitudes.
The fourth chapter describes an inspiring study of traditional heritage law among members of the Hul’qumi’num Treaty Group (HTG) [1]. The research had three primary goals: documenting Hul’qumi’num laws concerning the care of significant places, artifacts, and ancestral remains; examining problems related to respect for these laws; and exploring strategies for reforming provincial laws and policies to require Hul’qumi’num input into decisions affecting their cultural resources and traditional sites (80% of which today lie off reserve). Through interviews and talking circles, a team of researchers facilitated discussions among HTG elders and culture-bearers about the principles and laws that govern the responsibilities of the living in caring for ancestors and sites. Thick narrative descriptions and quotes beautifully illustrate each law. The Hul’qumi’num plan to use these principles and laws to inform their heritage management decisions and reform Canadian heritage law.
Chapter 5, co-authored by Catherine Bell and Graham Statt in consultation with the Mookakin Foundation [2], documents perceptions about repatriation and heritage protection among the Blood people of Alberta. Through interviews conducted in Blackfoot, the Blood reveal a nuanced and distinctive system of property rights in which individuals acquire responsibilities and obligations though a process of transferral. The alienation of ceremonial items from the community, which occurred during periods of social disruption, is considered a major breach of traditional law, while the repatriation of these objects contributes to the sustainability and well-being of the Blood people. The chapter includes an insightful discussion on the repatriation of medicine bundles, a project that the Blood have pursued since the early 1970s. Medicine bundles are animate living beings in need of care and nourishment. Bundles in museums are akin to abducted family members and need to come home. Different museums tend to handle repatriations quite differently, but the Blood see their relationship with the Glenbow Museum in Calgary as a positive model for indigenous curation and collaborative exhibition.
In the study written up by Brian Noble and Reg Crowshoe for chapter 6, Piikani participants talk among themselves about ways to protect their culture. They describe the sophisticated moral and legal principles that govern the transfer of cultural rights and responsibilities, the historic disruption of these practices, and the need to return to them. As a starting point for dialogue on these matters, Noble and Crowshoe advocate treating Nitsiitapi law and Canadian law as parallel practices. The chapter is densely written, and at times it is difficult to ascertain whose research agenda is actually foregrounded—the researchers’ or the community’s—but this is balanced by the refreshingly candid account of suspicions the study generated among First Nations participants and the difficulty researchers had relinquishing control over the process.
Chapter 7 compiles perspectives on protection and repatriation of cultural resources in consultation with elders and council members of the Ktunaxa/Kinbasket. Like other First Nations in the study, the Kinbasket define “cultural property” very broadly, as “anything that has to do with our way of life”—quite different from its definition in Canadian law. This chapter touches upon many of the themes emerging across the case studies: the idea that the cultural knowledge inherent in things is at least as important as the things themselves; the connection between the respectful and appropriate treatment of heritage and cultural well-being; the view that repatriation ameliorates some of the cultural harm caused by Canada’s past policies and practices; the responsibilities museums have to assist in the return of cultural items and in correcting misinformation in their records; the urgent need not only for stronger Canadian heritage laws but for recognition of First Nations law in Canada’s courts and institutions.
The second half of the volume builds upon the case studies, taking a more topical and analytical approach to explore some of the long-term effects of government policies related to First Nations cultural heritage. Chapter 8 surveys the most salient heritage issues faced by First Nations across Canada today. One is the evolving relationships with museums as these institutions take on the roles of “keeping places” for objects and agents of repatriation. Another is the development of legal strategies, heritage policies, and management agreements to proactively protect cultural resources and heritage sites, both on and off reserve. A third revolves around First Nations initiatives for protecting language and other forms of intangible heritage (e.g., rock art designs) from further loss or commercialization. Overall, the volume does an outstanding job of charting both setbacks and successes in these areas of ongoing struggle for First Nations.
Chapter 9 is devoted to linguistic heritage, an area of cultural loss that borders on catastrophe. Language is of no less concern to cultural survival than lands or heritage objects, and it is the aspect of culture that First Nations feel is most in need of protection. The authors provide a comprehensive overview of Canadian and international legislation on Indigenous languages. Some striking examples of the role language plays as a rich repository of “different ways of knowing” lend support to the claim that protection is urgently needed through whatever means possible.
The next chapter examines how Canadian legislation and policies forged over the last century have contributed to the erosion of First Nations cultural integrity and reflects on how these policies still affect First Nations communities today. Residential schools and the Indian Act are singled out, as are the prohibition of cultural practices (such as the potlatch) and the diaspora of cultural property from communities. This chapter includes an insightful discussion of potential legal avenues for the redress of cultural harms using claims of liability, negligence, and breach of fiduciary duty. In general, Canada seems to be moving ahead on repatriation and language revitalization initiatives intended to ameliorate some of the negative effects of residential schools and other government policies.
In the final chapter, anthropologist Brian Noble makes a strong case that Indigenous law and Western law need to recognize and respect each other as parallel legal systems. He outlines a framework of “parallel recognition spaces” as a strategy for moving ahead. The paradigm of intercultural respect and recognition proposed by Noble makes excellent sense theoretically, but until there are on the ground examples it remains to be seen whether First Nations would support the idea or if it would actually work in practice.
Each chapter in this well-organized volume builds upon what came before, moving from case studies to the analysis of themes. The text is tedious in places, but overall inspiring, with innumerable insights into the complex relationships between people and things, individual and collective ownership, and law and cultural obligations. The result is a powerful portrayal of why repatriation and other heritage issues are so vitally important to First Nations across Canada, how misguided policies continue to bring about cultural harm, and what can be done—and is being done—to ameliorate past and present injustices. First Nations have taken many proactive measures to protect cultural and intellectual property through land use studies, ethnobotany, museum searches, language revitalization, the development of protocols for outside researchers, and the creation of archives and local museums. The case studies suggest many useful strategies for protecting cultural knowledge and material heritage and offer concrete examples and suggestions for policy and law reform. The text is full of lessons and insights for researchers, museums, lawyers, and policymakers who work with cultural heritage issues, and should be required reading for anyone interested in Aboriginal law, heritage studies, repatriation, or participatory research. This is a wonderful example of research designed and implemented by, for, and with First Nations. Although the book focuses on heritage policies and practices in Canada, its implications extend much farther. Indigenous peoples everywhere are likely to see their own struggles in the pages of this volume.
Notes:
1. The Hul’qumi’num Treaty Group represents six Coast Salish First Nations on southeastern Vancouver Island and the southern Gulf Islands in today’s BC treaty negotiations.
2. The Mookakin Foundation is a Blood/Blackfoot organization devoted to protecting and promoting respect for culture, language, and heritage.
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[Review length: 2495 words • Review posted on October 6, 2010]