George P. Nicholas
Why does the tangible always trump the intangible in discussions of cultural property?1 How has this affected the evaluation and protection of ancient or culturally significant objects and places from the perspective of heritage holders and heritage managers – seldom the same people? And how do local values direct decisions regarding cultural property, heritage research, and preservation policies? Over the past 25 years or so, such questions have been explored by archaeologists and others who seek new knowledge of past lifeways; by members of descendant communities, especially Indigenous ones for whom connections to the past mean much more than artifacts on display; and by policy makers charged with the protection of cultural heritage. This has contributed to a rich academic discourse but with too few on-the-ground results due largely to the profound power imbalances that persist in so-called settler countries (e.g. Australia, Canada, the United States), and the unwillingness or inability of those involved to effect real change in the heritage realm. This has resulted is outstanding concerns about ethics, intercultural relations, and dispute resolution.
This imbalance is as much about epistemology as it is about the politics of knowledge. In the Western world, archaeology has long been viewed as the most robust of the various approaches to identifying and interpreting the story of humanity’s development and its great diversity, focused as it is on material culture – the physical expressions of past human behavior extending back into antiquity. Over the past 50 years, a suite of theoretical tools and technological advances has provided the means to learn about ancient peoples with astonishing detail. Given these advances, and poised as they are between science and the humanities, archaeologists have often taken on the mantle of official stewards of the past.
In recent decades, however, archaeology has been taken to task from both within and outside the discipline as to what it was, or was not, doing. By the 1980s there were calls from some factions to move away from the generalizing, explanatory goals of the neo-evolutionary orientation that dominated archaeology since the 1960s (see O’Brien et al. 2005), to a more relativistic position that emphasized meaning and questioned, amongst other things, the authority of archaeological interpretation (e.g. Hodder et al. 1995). Within settler countries, this latter focus was coincident with strident calls from Indigenous peoples2 for participation in research on or affecting their heritage, and its management, as well as for relinquishing authoritative positions that depend upon specific worldviews (e.g. Davidson et al. 1995; Deloria 1967; Nicholas and Andrews 1997; Swidler et al. 1997). These issues were also playing out within the larger context of anthropology (see Harking 2010), as they continue to do today. For its part, archaeology responded with a significant broadening, both in theory and practice, including considerable attention being paid to the concerns of descendant communities (Atalay et al. 2014; Lydon and Rizvi 2010; Nicholas 2014; Smith and Wobst 2005).
Much has thus been accomplished to make archaeology more responsible, representative, and relevant in terms of community engagement or orientation (e.g. Lyons 2013; Skeates et al. 2010). But there are some significant hurdles in extending these goals to heritage management.3 This is because management decisions are influenced by who controls, has access to, and benefits from cultural property, both tangible and intangible, as well as by who has the right or controls the representation of these issues. The emphasis on “evidence” in site interpretation and evaluation (see Chapman and Wylie 2015) has foregrounded material culture as the aspect of heritage that requires consideration and preservation, yet physical expressions of heritage may be less important than their intangible aspects to some heritage holders.
Importantly, while these topics elicit much discussion and contention in archaeology and other realms of heritage-related research (e.g. Bell and Paterson 2009; Kuprecht 2014; Riley 2004), they are also being debated by local and national governments and agencies, by organizations such as the International Council of Museums and by such international organizations as WIPO and the United Nations (e.g. Maina 2011; Srinivas 2012). Prominent here are demands by Indigenous peoples for more meaningful participation in decisions affecting their heritage and livelihood, the need to move from “consultation” to “partnership” or “consent,” and for professional organizations and government agencies to lessen their control over other peoples’ heritage.4 Furthermore, while Indigenous cultural property, both tangible and intangible, should be afforded protection under existing state, provincial, or federal law, this has had only limited success (Battiste and Henderson 2000; Bell and Paterson 2009; Kuprecht 2014; Riley 2004).
In this chapter I argue that the emphasis on material culture (i.e. things) has skewed our understanding of “heritage” and what should be preserved, particularly in the context of Indigenous cultural property. This has had a significant impact upon Indigenous peoples worldwide, and been detrimental to their identity and wellbeing, as well as limiting the benefits they have received from research into their heritage.
I begin with a brief look at how cultural property is acknowledged differently by international conventions and local (i.e. provincial) heritage policies in Canada. This sets the stage for an examination of differences between Western and Indigenous perspectives on cultural property, and then of the subsequent challenges for protecting Indigenous heritage. Next I discuss some of the responses, synergies, and alternative strategies that have arisen in response through a range of examples drawn from the IPinCH Project, an international initiative that addresses intellectual property issues affecting Indigenous peoples. I conclude with a consideration of the responsibilities that come with engaging with other people’s cultural property, and the decisions that each of us must make in that regard.
Many of the examples provided are drawn from Canada, and the majority of those from British Columbia due to unresolved heritage concerns in the province. I intentionally provide a wide variety of examples, rather than a smaller number of in-detail studies, to more effectively illustrate the breadth of concerns that require attention.
In both common use and the realm of heritage management, “cultural property” is most often construed as something physical; this is clearly reflected in the Hague Convention for the Protection of Cultural Property5 (1954):
The term “cultural property” shall cover, irrespective of origin or ownership:
(a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;
(b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a);
(c) centers containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as “centers containing monuments.”
A similar orientation has also been reflected in US heritage legislation: “In amending the National Historic Preservation Act of 1966, the 96th Congress realized that the existing Historic Preservation Program fails to provide clear coverage for the full range of cultural resources in the United States. Historic properties are the sole type of resource specified for protection and benefits. When not embodied in a structure or site, intangible elements of our cultural heritage fall outside the scope of this law” (Loomis 1983: iii).
The emphasis on the tangible expressions in the realm of heritage – objects, structures, and places – is understandable. Within archaeology and related contexts, it is the material culture record that is used to identify, evaluate, and preserve or mitigate impact on heritage “resources” considered “significant” (Hardesty and Little 2009). Such assessments emphasize scientific values, albeit with some attention to historical, religious, and local values as well.
But cultural property, defined in this manner, is but one dimension of the much broader concept of “heritage,” which I define as the objects, places, knowledge, customs, practices, plants, stories, songs, and designs that define or contribute to a person’s or group’s identity, history, worldview, and wellbeing. Although intangible aspects are recognized in heritage policies (e.g. as intellectual property [WIPO] and as intangible cultural heritage), “artifacts” and “sites” are still the primary referent in archaeological practice and heritage management due to the necessity of “evidence” in scientific reasoning, as well as in upholding the legal obligations of heritage policies. As one example, the Heritage Conservation Act (1996) of British Columbia (Canada) includes this provision6:
(2) Except as authorized by a permit issued under section 12 or 14, or an order issued under section 14, a person must not do any of the following:
(a) damage, desecrate or alter a Provincial heritage site or a Provincial heritage object or remove from a Provincial heritage site or Provincial heritage object any heritage object or material that constitutes part of the site or object;
(b) damage, desecrate or alter a burial place that has historical or archaeological value or remove human remains or any heritage object from a burial place that has historical or archaeological value;
(c) damage, alter, cover or move an aboriginal rock painting or aboriginal rock carving that has historical or archaeological value;
(d) damage, excavate, dig in or alter, or remove any heritage object from a site that contains artifacts, features, materials or other physical evidence of human habitation or use before 1846. . . . [emphasis added].
Definitions provided include:
“heritage object” means, whether designated or not, personal property that has heritage value to British Columbia, a community or an aboriginal people;
“heritage site” means, whether designated or not, land, including land covered by water, that has heritage value to British Columbia, a community or an aboriginal people;
“heritage value” means the historical, cultural, aesthetic, scientific or educational worth or usefulness of a site or object.
The Heritage Conservation Act is potentially a powerful piece of legislation, and one that includes provisions to accommodate First Nations interests, including concerns about the protection of sacred sites, ancestral grounds, and other aspects of heritage that may have little or no material culture (still) associated with them.7 Again, however, the emphasis of physical remains, and more generally the limited accommodation of First Nations heritage values, including spiritual or sacred places, has continued to be problematic in British Columbia and indeed in settler countries worldwide due to land claims, sovereignty claims, and a host of other unresolved issues.8 While there is nominally protection for intangible heritage, there is also a disconnect in Canada and elsewhere between state or provincial legislation and what is called for by UNESCO’s Convention for the Safeguarding of Intangible Cultural Heritage (2003), which includes this definition (in Article 2(1)):
The “intangible cultural heritage” means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. . . .
Notably, the convention is strongly oriented to contemporary heritage expressions, with no explicit reference to the presence or expression of intangible heritage in non-modern (e.g. archaeological) contexts despite the mention of their continuance through generations.
Even when concerted effort is made to seek fuller acknowledgement of intangible cultural property, significant tensions persist between the dominant society and Indigenous peoples within settler countries regarding land claims, reburial and repatriation, DNA research, research ethics, protection of burial grounds and sacred places, and so on (e.g. Nicholas et al. 2015). This reflects, in part, the limited congruence between legislation designed explicitly to protect the material dimensions of heritage, and international conventions and other efforts seeking to acknowledge and protect intangible heritage. Indigenous peoples continue to have limited participation in matters concerning their heritage, which has a vital role in their identity, worldview, and wellbeing. While this is very much an issue of law and participation, it also has a significant bearing on how “cultural property” and “heritage” are defined and implemented in practice, and also on the degree to which intangible cultural property is acknowledged – a topic explored in the next section.
Despite the fact that anthropology strives to appreciate the diversity that comprises humankind, there has nonetheless been the tendency to interpret that diversity through a Western lens of understanding – a perspective shaped by an empiricist rationality that developed during the Enlightenment and skewed by the power relations that continue to inflect the production of knowledge in universities. The result is that while many will acknowledge that a mountain is sacred to a certain group, for example, they tend to be satisfied only when there is some physical evidence of religious practice associated with it, particularly in the context of land claims, resource extraction, or land development. This focus on tangible “proof” continues to haunt the application of heritage policies in the Americas and other settler countries, where the vast majority of the archaeological and early historic record is associated with Indigenous cultures but under the control of the state.
While there is no one “pan-Indian” worldview – and I am cautious about essentializing here – significant differences do exist between Western and Indigenous societies, and their respective knowledge systems, in terms of worldview, ecological relations, modes of explanation, conceptions of time, and so on. Heather Harris (Cree-Métis) notes that “the universe [and everything in it] is alive, has power, will and intelligence” (2005: 35), where familiar Western dichotomies – natural/supernatural; nature/culture – may be absent or at least different, and the past, present, and future may be self-referential. Thus ancestral beings may be part of this existence, not another dimension; ownership of objects, songs or stories, even places may be communal, not individual; landscape features may be living beings (see Brady et al. 2016). Such factors have substantial implications for how cultural property was and is defined and enacted in daily life (it may be animate, for example).
Recognizing the nature of indigenous worldviews, heritage, and knowledge systems is thus essential to making sense of contemporary claims around Indigenous cultural property (see Augustine 1997; Bruchac 2014; Riley 2004). My position follows that of Bell and Napoleon (2008: 6–7), who note that “The very terms ‘culture,’ ‘property,’ and ‘ownership’ are Western legal, social, economic, and political constructs that are imposed on First Nations. . . . However, to varying degrees and within specific contexts these terms are still incomprehensible (i.e. no equivalent concept in First Nations languages), inappropriate (i.e. disrespectful of First Nations concepts), or inadequate (i.e. too narrow).” This is why I view cultural property as an essentially inseparable aspect of heritage.
The notion of property as “something owned” is of course not exclusively a Western notion. Within Indigenous societies, individuals, families, clans, and other entities could and did possess not only objects, but also places, songs, stories, and much more. With these came types of immediate but also intergenerational attachments, responsibilities, and entitlements perhaps unfamiliar to Western understanding. As one example, Brian Noble has explored the contrasting notions of “owning as property” vs. “owning as belonging” within and between Canadian First Nations: “The phrase ‘owning as property’ describes a system that emphasizes property as a commodity capable of individual ownership and alienation for the purposes of resource use and wealth maximization. In contrast, ‘owning as belonging’ places greater emphasis on transactions that strengthen relationships of respect and responsibility between people and what they regard as ‘cultural property’” (2008: 465).
Likewise, the division of property into “tangible” and “intangible” forms may be unfamiliar, indeed even artificial or unnatural when applied to Indigenous contexts. Objects, even if ancient, may be seen not as reflections of past lives but as vessels that contain some essence of those lives; rock art images may embody ancestral beings. Ancient objects are often important touchstones of history, family heirlooms that connect generations. One such heirloom is held by Joanne Coombes Brown, who is Carrier Cheslatta Nation (British Columbia) – a chundoo lat’ooz-a-tut’ chjooth, which is an inner-bark scraper commonly used by Carrier people to obtain cambium. This one was made by Cheslatta Chief Louie for his wife, who gave it to her daughter, Lottie (Louie) Jack, who in turn gave it to her daughter, Christine Jack, Joanne’s mother: “As a child I didn’t know that its presence reminded her of days gone by, and of a lifestyle that would be lost in our next generation. . . . It represented the nuanced smells and tastes of so many spring days, complete with those noises the earth makes only at that time of year. It reminded her of her grandfather, and she remembered her grandmother using this tool.”
An additional connection between object and identity is brought forward by Jordan Wilson (2016) in his discussion of nomenclature concerning the ancestral Musqueam village of c̓əsnaʔəm in what is today Vancouver, British Columbia. He makes a compelling argument to use the Musqueam name (vs. “Marpole Midden”) and “belongings” (vs. “artifacts”) because this “reinforces the ongoing connection our community has to both place and the things taken from it.” Indeed, this simple shift in words is remarkably effective in forcing one to personalize the past (see Carcross-Tagish First Nation et al. 2016 and Spector 1993 for additional examples).
More generally, a distinct concept of “heritage” may be absent in many Indigenous societies since what it represents is entwined with all other facets of people’s lives. As one Yukon First Nations member notes about heritage, “It’s everything that makes us who we are” (Carcross-Tagish First Nation et al. 2016: 30). The knowledge that shapes and guides each person’s life is learned, earned, shared, and cared for, often hand-in-hand through objects or places. Likewise, for the Mistissini Cree of northern Quebec, material expressions of heritage, such as traditional technology, have an active role in healing and wellbeing (Guindon 2015). Their concept of maamaahtaaukaschihtaau (“resourcefulness”) “encapsulates the complex relationships existing between the ideational and material constituents of what Westerners know as technology” (p. 80). This is exemplified by the Mistissini’s integration but also reworking of Euro-Canadian technology into their traditional lifeways.
For some Indigenous peoples, not only may things be considered animate, but so too is heritage – that is, so-called heritage objects need to be used and relations with heritage places need to be maintained and nourished. The culturally appropriate care of objects of Indigenous patrimony in some museums, which may include storing some items separately, and the burning of sweet grass, or smudging, at least nominally acknowledges the living aspects of the objects kept there. In fact, this practice has in recent years become part of museum curatorial practices9 where ceremonial objects may be housed in a museum, but are “checked out” by community members as needed (Peers and Brown 2003). Heritage objects may thus continue to have a role – a life – within their respective communities.
Finally, expressions of heritage may be at one integral unto themselves but also part of something larger. For the Mi’kmaq, a named place on the landscape where Gloscap’s dogs were transformed into a rocky outcrop (Sable 2011) is also part of a constellation of stories that are an historical record, a connection to (still-present) ancestors, and a touchstone of identity. In the case of ancestral remains, there may be no perceived difference between a bone fragment or preserved hair or even DNA sample and the person whole. In this case, what might be casually termed an artifact, a scientific specimen, or cultural property is actually a person.
It is evident in each of these cases that cultural property is not just “things.” While one’s engagement with the world may be grounded through its material culture, it is always filtered through the society’s collective knowledge, experiences, traditions, social obligations, and origin stories that both shape and reflect what people do, and why. Thus, there is fundamentally no difference between the place and the stories and knowledge that location holds, or between an object and the historical continuity it may exude or the social obligations it may convey. This in turn requires that the archaeological (or other) analyses of such cultural property, and the “management” of such heritage (including determination of significance), impose great responsibility on outsiders who engage with other people’s heritage and all that it represents.
Clearly archaeologists and others who are the gatekeepers and managers of heritage objects, places, and information need a better understanding of the cultural systems they represent – and the nature of cultural property therein. Coupled with its emphasis on empirical observation, evidence, and explanation, archaeology’s quest for new knowledge of what it is to be human is relentless and seemingly boundless (i.e. no topics should be off limits). While archaeology has broadened substantially to address the needs of Indigenous peoples (see Nicholas 2014 for a review), such efforts have translated unevenly into general practice, especially in heritage management. Despite court rulings that now give weight to oral histories in archaeological site assessment and land claims, the burden of proof effectively remains on material culture. Indeed, there seems to be implicit mistrust of the value and legitimacy of non-tangible material as a legitimate source of data or “truth.” In some cases, Indigenous groups10 have successfully turned to archaeological data to demonstrate continuity of land use in land title cases. However, oral histories, traditional knowledge, and other forms of evidence are often suspect, whether in specific legal cases like Delgamuukw vs. British Columbia (Culhane 1997) or the Hindmarsh Island case in Australia (Bell 1998) for instance, or more generally (Mason 2006).
Not surprisingly, descendant communities, especially Indigenous peoples, have major concerns relating to how their cultural property is treated by others, especially when used in inappropriate, unwelcome, or harmful ways. Examples here include: modern and ancient DNA research (Pullman and Nicholas 2011; TallBear 2013); control of, benefits of, access to, and protection of heritage objects, places and information (Bell and Paterson 2009); efforts to repatriate cultural patrimony and human remains, and the information derived from those (Kuprecht 2014); inappropriate display of sacred objects; and the selective acceptance of traditional knowledge (Isaac 2011; Nicholas and Markey 2014). In addition, virtually all elements of indigenous heritage, traditional knowledge, and cultural objects and sites have long been viewed as part of the public domain, free for the taking and enjoyment of others.
Here I briefly highlight two examples of special challenges relating to different types of Indigenous heritage: the proper care of cultural property; and identifying and respecting the sacred. Each has practical, ethical, and legal dimensions. While the examples are drawn from North America, comparable examples occur widely.
How should Indigenous heritage items be cared for when removed from their cultural context and kept by others elsewhere? For the Zuni of the American Southwest, proper care of the Ahayu:da (carved wooden figures, considered animate beings, residing on mountaintop shrines) is to let them return to the elements when their active life is over (Merrill et al. 1993), while for museum curators and conservators it is to keep them in climate-controlled rooms with the goal of preserving them indefinitely. These are two diametrically opposed modes of care and obligation.
In the age of technological (and increasingly digital) reproducibility (e.g. Ahmed et al. 2014), there are also challenges associated with “replicas.” For example, Gwyneira Isaac’s (2011) study of the intangible aspects of Zuni cultural patrimony reveals that replicas of ceremonial items may be fundamentally no different from the original item, even when made by non-Zuni, and may be animate or filled with power. This has led to concerns about who has access to Zuni knowledge, and about its appropriation and misuse. On the other hand, the use of reproductive technologies can also be used to protect Indigenous cultural property. This is illustrated by a recent collaboration between the Tlingit and the Smithsonian Institution (Hollinger et al. 2013) which used 3D digitization and reproductive technologies to make copies of important but old and fragile sacred items that could fulfill both community needs and the mandate of the museum; Tlingit oversight not only ensured no threats to the integrity of the pieces, but provided added value. While very promising, such collaborations require a considerable investment of time and resources; there are also many technical and ethical issues associated with the digitization of cultural property (Boast and Enote 2013; Brown and Nicholas 2012; Christen 2006; Ngata et al. 2012).
Among the greatest concerns that Indigenous peoples have are threats to sacred sites, cemeteries, and other places of religious or historical significance to them. Part of the problem is that, as cultural property, heritage places may be of types unfamiliar to outsiders (e.g. ancestors transformed into rock) or may lack an archaeological (i.e. material evidence) component.11 Objects can be under threat if not treated properly (according to Indigenous protocols) or not identified as sacred by museum staff. Likewise, objects that are recognized for their archaeological value, such as a carved stone figures, may in fact be considered animate and must be treated differently, even if not considered sacred. In the case of one such being, the Sto:lo in British Columbia believe that “T’xwelátse is a man. He was turned to stone but he is still alive” (Sto:lo Nation 2012: 15). Most archaeologists and heritage managers have little experience with what is literally, in this case, “living heritage.”
Another challenge is also that not all information about cultural property is appropriate to share. Indigenous groups are often reluctant or unwilling to identify sacred places, for various reasons such as protection of the site or other cultural protocols, which can be a challenge for heritage managers. As Arvid Charlie, a Hul’qumi’num elder (British Columbia), states:
There’s nothing really written down about our sacred things, our sacred ways, sacred areas. We’ve been brought to question that. Well, other people have said, “Well, you guys must have not very many important sites that’s why it’s not recorded.” You know, when we’re trying to look at some . . . or something about sacred sites. The answer from our home area is: those things that are really sacred, no one is allowed access to. We didn’t share it. We don’t share it with just anybody. It was good for that day – we kept our heritage, our culture – but today that almost works against us.
(cited in McLay et al. 2008: 151)
Finally, even when heritage sites and objects are protected by law, misunderstanding about the nature of cultural property remains problematic. In the recent Grace Islet controversy in British Columbia, a property owner, acting legally under the provisions of the Heritage Conservation Act (cited earlier), began construction of a house on a small island that had at least 16 recorded burial cairns, literally building on top of/around several. This technically left the “archaeological component” of the burial ground intact, but was clearly inappropriate and caused considerable harm to local First Nations until construction was permanently stopped in early 2015 (Nicholas et al. 2015). Part of the problem is that Indigenous and Euro-Canadian burial grounds are treated differently under the law (pre-1846, they an archaeological site; post-1846, a cemetery). In addition, the landowner received compensation of $5.45 million, of which $840,000 was for the property itself, and $4.6 million for “losses suffered.” As I’ve noted elsewhere, “What has been conspicuously absent, however, has been any consideration given to the local First Nations – not for lost “enjoyment” but for the harm, “losses suffered” from the impact of disturbance of historic places they consider sacred or otherwise vital” (Nicholas 2017).
In each of these cases, there are fundamental differences between Western and Indigenous conceptions of “property.” Some objects are animate. Ancestors are part of this existence, a notion outside the realm of Western understanding. Understanding cultural beliefs is thus vital to how Indigenous heritage, and all it means, is conceived by outsiders/heritage managers/researchers. It is the responsibility of those charged with caring for or otherwise managing other people’s cultural property to enfold such understanding into the practice of heritage curation and management. While there are provisions for recognizing and protecting intangible property in heritage legislation in North America (e.g. Guest 1996; McJohn 2005), they are applied or interpreted inconsistently.
There are today a variety of practices being employed around the world that engage with cultural property in ways that foreground community values, interests, and needs. These provide both examples of, and incentive for, the integration of Indigenous conceptions of property into museum curation, heritage management, and archaeological practice. In some cases these values emanate from the community and are directed only to the community (e.g. Mukurtu, a digital content management system developed with the Warumungu Aboriginal community [Australia], explicitly designed to suit the protocols of Indigenous communities around the organization and accessibility of esoteric knowledge12); in other cases they provide opportunities for information sharing and collaborative exploration, interpretation, and protection of cultural property with those outside the community (e.g. the Reciprocal Research Network, an innovative partnership between the Musqueam Indian Band, the Sto:lo Nation and Sto:lo Tribal Council, the U’mista Cultural Society, and the University of British Columbia’s Museum of Anthropology to facilitate reciprocal and collaborative research).13 There are also initiatives developed by non-Indigenous partners intended to support community needs, which may also provide “added value” to traditional forms of heritage research (i.e. those with scientific or historical orientation).
Here I provide a set of examples of approaches to cultural property that (a) directly benefit the heritage holders, (b) reveal new ways of thinking about, and doing, heritage management, and (c) are each situated in an understanding of cultural property/heritage in which the tangible and intangible aspects are indivisible. These are all drawn from the Intellectual Property Issues in Cultural Heritage (IPinCH) Project (2008–2016).14 This was an international research collaboration providing research, knowledge, and resources assisting academic scholars, descendant communities and others in negotiating equitable terms of cultural heritage research and policies. The team included more than 50 archaeologists, anthropologists, museum and cultural tourism specialists, lawyers, ethicists, and others, along with 25 partner organizations, and more than 100 Associate members and student participants. Since 2008, IPinCH worked to explore the diverse values that underlie attitudes, decisions and actions to facilitate fair and ethical exchanges of knowledge relating to cultural heritage, especially that of Indigenous peoples. IPinCH sought to ensure that communities, not academics, are the primary beneficiaries of the research conducted – a challenging proposition for any university-based initiative.
IPinCH engaged locally and at national or international levels to address Indigenous heritage needs while also working to better understand conceptions of heritage, to improve university research ethics, and research practices, and also influence heritage policies and their implementation. Efforts in each realm are briefly outlined below.
Worldwide, concerns have arisen over the nature of culture, property, knowledge, and rights of Indigenous peoples. Frequently, these reflect a failure to recognize the important roles that customary and informal legal systems continue to play in Indigenous societies, as relating to land, traditional knowledge, and ancestral objects and places. A series of IPinCH-funded community-based studies15 provided opportunities to learn about local conceptions of ownership and rights. For example, the Yukon First Nations initiative sought understandings of heritage values of three of its members: Champagne & Aishihik First Nations, the Carcross-Tagish First Nation and the Ta’an Kwach’än Council:
Although participants identified various forms of art and cultural expression as holding significant cultural importance, these “things” alone do not constitute the value. Rather, it is the relationships – the experiences and the stories attached to them – that establish their significance. While a physical item itself can have some inherent value, the process of sharing traditional knowledge derived from it, and the aggregate of experience shared between people, is often attributed higher significance.
(Carcross-Tagish First Nation et al. 2016: 53)
In British Columbia, the Secwepemc Territorial Authority project began with the premise that Secwepemc Peoples’ have economic, political, and legal authority within their territory. For community participants, heritage “takes in the political and economic relations, your spiritual relations, your practices, your laws, morals and ways on the land, all those kinds of things” (Noble et al. 2016). What is evident from these and the other community initiatives is that both “heritage” and “heritage objects” tend to be linked to multi-faced notions of stewardship, responsibility, spirituality, and relationships. Indeed, for Yukon First Nations, “the heritage value of an object is not necessarily related to its age, rarity, or uniqueness, but rather it is determined largely on the basis of connection to community” (Carcross-Tagish First Nation et al. 2016: 68).
The funding provided to the community-directed initiatives worldwide helped to address local concerns about a variety of issues affecting cultural property. For example, the Moriori of the Chatham Islands, New Zealand developed a cultural database for traditional knowledge, a management plan based on Moriori aspirations and tikane (cultural protocols and obligations) to protect a sacred grove of rakau momori (living tree carvings), and ethical protocols and guidelines for research and fieldwork (Thorpe et al. 2015); in the Canadian Arctic, the Inuvialuit repatriated information from objects in museum collections far away and established new education programs; the Sto:lo (British Columbia) developed guidelines for research on ancestral human remains that enable generating knowledge within a mutually acceptable framework of authority, control, and use; and in Kyrgyzstan, a series of sustainable, culturally appropriate, and community-embedded projects address the preservation and educational use of cultural property, including in cultural tourism.
IPinCH itself became a case study in alternative research ethics and practice in terms of giving communities complete control over the research process. This revealed significant tensions between the project, university policies, and funding agencies. Some of the community projects literally took years to have the funding and ethics application approved, pointing to the need for revising university policies. To aid that process, and to share lessons learned, IPinCH hosted a national research ethics conference, “Working Better Together”16 in 2015 that brought together scholars, practitioners, students, administrators, and policy makers of diverse cultural and professional backgrounds from across Canada to explore what it means to work collaboratively in Indigenous research.
In late 2014, in response to the continuing construction on the Grace Islet burial ground (noted above), a group of IPinCH team members developed the Declaration on the Safeguarding of Indigenous Ancestral Burial Grounds as Sacred Sites and Cultural Landscapes.17 The declaration states the importance of recognizing and protecting Indigenous ancestral burial sites and calls on all levels of government to work together to ensure such sites are not subject to alteration or damage. It is also a reminder to all parties, including both non-Indigenous governments and researchers, of their existing legal and ethical obligations with respect to First Nations sacred sites on which human remains of cultural and spiritual significance are interred. Here as elsewhere, cultural property represents the tangible and intangible aspects of people’s lives, a concept that many in Western society need assistance in learning to recognize and respect.
Another important IPinCH goal was to educate and provide resources to Indigenous communities, heritage practitioners, policy makers, and the general public to enable them to better understand and make informed decisions about cultural property. This included symposia and workshops on such topics as “Cultural Commodification, Indigenous Peoples, and Self-Determination,” and “DNA and Indigeneity: The Changing Role of Genetics in Indigenous Rights, Tribal Belonging, and Repatriation.” To date, IPinCH has produced 96 videos, in addition to fact sheets, teaching resources, and academic publications. One important output from the Commodifications workshop was the recently published booklet, Think Before You Appropriate: Things to Know and Questions to Ask in Order to Avoid Misappropriating Indigenous Cultural Heritage. A Guide for Creators and Designers.18
What these and other endeavors demonstrate is that collaborative projects and community-driven projects enhance not hinder understandings of cultural property. This may help to confront the conundrum of heritage management, which has most often been informed by values and goals divorced from the communities whose heritage it is. No less important is challenging the notion that indigenous heritage is public domain. As IPinCH has hopefully demonstrated, enabling community-based or collaborative research practices and promoting a “some rights reserved” model to cultural property and the knowledge it conveys may help to avoid many of the issues outlined earlier.
For the most part, Indigenous peoples are genuinely interested in what archaeology and other research practices can reveal about their cultural property and past lifeways, as well as what ethnographies have captured of traditional customs prior to the impact of colonialism. Indigenous groups are actively involved in archaeology, traditional knowledge recording, and even studies of ancient human remains (Nicholas 2010; Solomon and Thorpe 2012). However serious concerns loom large when research results reveal or threaten information that is not meant to be shared, or cause cultural, spiritual, or economic harm. More broadly, there is potentially much at stake regarding academic/scientific vs. community access and ownership of knowledge, restrictive vs. inclusive modes of resolution, the rights of knowledge holders vs. knowledge users, and legal vs. customary definitions of intellectual property, as well as the legal and ethical challenges of new technologies (e.g. digital repositories) and research initiatives.
The case of “sacred bundles” thus provides an important point of reference in terms of ethical issues vs. scientific knowledge in regards to cultural property. Secret ceremonies, hidden ritual objects, sacred bundles – all represent aspects of cultural property that, for Western scholars, beg for discovery, description, and analysis, but for others are recognized as off limits.
What are sacred bundles? These are literally bundles of objects, most often associated with Indigenous societies in the Americas (but having counterparts elsewhere), that possess great spiritual power, and thus require great care and responsibility by those authorized to possess or use them. From the perspective of Western science, these bundles provide opportunities for new knowledge about Indigenous belief systems. Thus, Margaret Brown Vega’s (2015) study of sacred bundles from Chile points to the value that analysis of such objects may have, as does Timothy Pauketat’s (2013) broader study of how such objects inform understandings of agency in ancient religious practices. And yet from an insider’s perspective, those revelations would be disastrous. Traditionally, Aboriginal peoples in Australia, for example, even accidentally encountering what was restricted, could be met with harsh penalties or death (Berndt and Berndt 1992).19
Such spiritually powerful cultural property demands careful consideration, including meaningful discussions with those whose heritage is represented. Should these bundles be opened? There are new technologies that provide opportunities for non-invasive research. In the case of a Pawnee sacred family bundle donated to a museum, X-raying it provided an acceptable means to learn of its contents, although it is perhaps surprising who wanted it opened and examined after it had been donated to the Kansas State Historical Society:
What that next step could be, however, became a source of debate. The donor had given permission to open the bundle, examine the contents, and undertake necessary conservation action. But do scientists have the right to invade a sacred item such as this bundle because of a possible need for conservation and a scientific quest for information, and should these concerns outweigh the issue of sacredness to the Pawnee and other Native American peoples?
(Good 1989: 5).
I now raise two important questions about cultural property in the context of the issues brought forward in this chapter. Should we consider not unwrapping the “sacred bundle” of the cultural property values, knowledge, and history that descendant communities wish to keep private or at least control? Can we accept that there are some things that we should not know; and if so, is our existing knowledge of the world threatened or lessened? Respecting this notion of cultural privacy, as it were, is difficult for scholars who are used to having the freedom to pursue any research avenue, let alone the current state of almost instant gratification of networked knowledge access. Yet acknowledging the wishes of descendant communities can often yield unexpected rewards as trust and respect are earned.
I am not suggesting that we stop doing archaeology or research on heritage objects and sites. But I do contend that we must recognize that aspects of Indigenous cultural property often fall outside our familiar frame of reference. What follows is a set of observations that may provide some guidance.
Heritage research has typically been oriented to scientific goals or the refinement of history, with material culture being both the touchstone to, and evidence of, ancient lives. Archaeologists, ethnoarchaeologists, and ethnographers have long worked with local communities to directly observe activities, ask questions, and otherwise glean knowledge of that society. This has greatly enriched anthropology’s understanding of the human condition at both large (i.e. generalizing) and local (i.e. identifying diversity) levels. Yet these efforts, which are dependent upon local knowledge, have done little to benefit the descendant communities. Even those approaches oriented to meaning, such as phenomenology, are primarily directed to an archaeological audience. One could argue that this represents a type of appropriation of Indigenous knowledge.
There have been efforts to turn this around, generally within the context of postcolonial, critical, Marxist, and Indigenous archaeologies.20 These theoretical streams acknowledge that heritage holders/descendant communities should have decision-making roles in how their heritage is cared for and preserved, and be the primary beneficiaries of research on or use of their heritage. Many of the examples in the previous section reflect these goals. Some of the familiar elements of ethnographic research can be reformulated to foreground community needs while still yielding new understandings that benefit outside researchers (e.g. Castañeda and Matthews 2008; Edgeworth 2006; Hamilakis and Anagnostopoulos 2009). These can provide more nuanced definitions or approaches to heritage – and the meaning(s) of cultural property – that benefit everyone.
Anthropologists and anthropologically oriented archaeologists are caught between a commitment to understanding the world, past and present, as fully as possible on the one hand, and respecting the customs, values, and customary laws of the living peoples with whom we work, on the other. Do we foreground the collection, analysis, and curation of cultural property as vestiges of shared human heritage to fulfill scientific needs or public interest? Or do we respect the wishes, needs, and concerns of descendant communities for whom the cultural property may be a vital part of their heritage? These are not always at odds. I explore this situation briefly, not from the usual position of power sharing in heritage decisions, but by relating to what researchers/anthropologists can and should know about values embedded in cultural property.
Indigenous spirituality is one of the most problematic areas of archaeological research that seems tantalizingly out of reach, but an important goal, nevertheless (e.g. Bloch 2014; Hall 1997; Pauketat 2013). But it is an area of great sensitivity and privacy for Indigenous peoples as it is integrally connected to identity, wellbeing, and relationships and responsibilities to a living world.21 As one Yukon elder states, “It’s that real sense of spiritual connection. I don’t know where it comes from, but it’s part of who we are. Our ancestors are here, you know. You look up the hill there at the gravesite, those are all our ancestors up there. They are here with us today” (Carcross-Tagish First Nation et al. 2016: 37).
There is much to consider about mutual understandings in this realm:
Spiritualism is a part of indigenous life that most archaeologists reference but few unpack. . . .The concept is applied with three purposes. First, it highlights a cultural arena of historical significance that is contrasted with materialist approaches, although its use acts more like a container for complex ideas than a window into them. Second, it is a placeholder for culturally specific forms of rationality that differ from archaeological expectations based on neo-classic economics (here, spirituality has agency to chart history in unexpected ways). Third, it is a philosophical framework that orients the values and epistemologies in indigenous history. In the majority of cases however, the spiritual content of history is unexplored by archaeologists, serving instead more . . . as a critique of archaeology than an analysis of the history of Indigenous peoples.
(Martindale and Nicholas 2014: 457)
Relative to these three points, we can see that the quest for fuller recognition of how knowledge of the original (and current) role of objects or places of spiritual importance is also situated within a suite of political, interpretive, and philosophical positions. This situates all of us – Indigenous or Western – in the awkward position of determining how we can learn about unfamiliar belief systems and rationalities without intruding (further) into business that is not ours. Such tensions should be welcomed as they tend to force action and, in this case, may drive respectful and mutually rewarding conversations about cultural property.
As noted above, archaeological research and heritage management are heavily based upon material culture. From a Western perspective, things remain the measure of consequence; tangible property continues to the “real” thing. This is ironic as no material culture – no artifact or site – has any meaning without the values that are ascribed to it (Geismar 2013: 2; Nicholas and Hollowell 2007; see also Carman 2005; Waterton and Smith 2009). Consequently, when we are dealing with someone else’s cultural property, not having full knowledge or understanding of the cultural context or meaning of what is represented has significant implications.
Beyond finding the means to attain such understanding we also need to consider how we conceive of cultural property at a more fundamental level. In their study of how a Neolithic tomb in England has been interpreted, Chris Fowler and Oliver Harris (2015) make an astute observation of materiality that resonates strongly with the challenges I have outlined. Informed by what they refer to as the new materialism, they refer to (heritage) objects or places not as singular entities but rather as “ever changing bundles of relations, to emphasise the way they are constantly fluid and in flux. This has helped overcome an older view of material things simply as inert objects, brought to life only through human agency” (2015: 128, emphasis added).22
Such a view has considerable merit in acknowledging that different knowledge systems intersect at the nexus of cultural property, and resonates strongly with perspectives shared by Indigenous peoples (see examples above). Within Indigenous cultural property, those artifacts do reflect technological advances, population movement, and evolutionary change as read into them by archaeologists, as much as they reflect the different meanings that Indigenous peoples themselves see in them. Both sets of values and knowledges are present at once; while we may not be able to observe each at the same time,23 it’s not one without the other. A similar position is advanced by Fowler and Harris: “We cannot understand the complexity of the ‘world of materials’ . . . if we insist that only one mode of analysis is appropriate: modulating between modes – continually reconfiguring phenomena in varying ways – is vital to exploring what things are and can be” (2015: 144–145).
For Indigenous peoples, attaining respect for and protection of cultural property is not an academic exercise in alternative epistemologies, but a pressing need. Their heritage is under constant threat of destruction, appropriation, and commodification. All peoples have a cultural legacy worthy of respect and protection, but in colonial contexts, Indigenous peoples have historically had little control over their own affairs.
Treasured possessions, objects of cultural patrimony, ancient artifacts, traditional knowledge, names, intellectual property, ancestral human remains, animate objects, relationships – these and more are expressions of Indigenous cultural property. Collectively, they express or constitute the history, identity, and values of peoples whose lifeways and worldview may be fundamentally different from those of the dominant society now occupying their traditional lands. Whether in the Americas, Africa, the Pacific, or elsewhere, Indigenous peoples and their heritage have contributed much to Western science, foodways, art, and entertainment, but with little control over, or benefits from such uses.
In this chapter I have examined some of the challenges of caring for indigenous cultural property in the realm of heritage studies. Implicit in this discussion is the need for a fuller understanding of what “heritage” is in different cultural contexts and, importantly, a recognition that in some cases the physical expressions of heritage may be less important to the heritage holders than their intangible aspects. This has presented considerable challenges to protecting Indigenous heritage objects and sites even when protected by law. Overcoming these challenges is not impossible but does require a willingness to think outside the box (of Western values). To develop effective, equitable, and meaningful ways to acknowledge and protect heritage objects, places, and information – whether our own or anyone else’s – local values and understandings must be sought out (Hollowell and Nicholas 2009). Whether we speak of “cultural property” or “heritage,” ultimately we are dealing with the essence of who people are – and that is something that deserves great care and respect.
I thank Haidy Geismar and Jane Anderson for their invitation to develop this chapter, and Sarah Carr-Locke, Catherine Bell, Julie Hollowell, Kelly Bannister, John Welch, Joanne Brown, Alison Brown, Ian Lilley, George Smith, Joe Watkins, Robert Hershey, and Laurajane Smith for ideas, resources, and otherwise assisting with its completion.
1 Throughout this chapter I use “cultural property” and “cultural heritage” more or less as synonyms, with the latter more encompassing within Indigenous contexts for reasons outlined here (also see Bell and Napoleon 2008; Prott and O’Keefe 1992). I purposefully shy away from the more nuanced or legal aspects of “property” here as defined and applied in Western law and heritage practices, which emphasize material objects (i.e. things).
2 Referring to so-called Fourth World and/or formerly disempowered, or disenfranchised, or colonized peoples who are “marginal or dominated by the states that claim jurisdiction over them” (Maybury-Lewis 2002: 7).
3 Here I distinguish between “archaeology” and “heritage”. Archaeology is the study of (past) human behavior through material culture; it is largely focused on the tangible. Heritage, on the other hand, I define as the values and meanings ascribed to or associated with objects and places.
4 For Canada, the legitimacy of such claims is illustrated by a series of landmark court decisions that acknowledge the historic imposition of colonial interests upon First Nations, and seek to provide an alternative framework: in the Delgamuukw v British Columbia decision (1997), the Supreme Court of British Columbia recognized the legitimacy of oral histories in land claims, while in Tsilhqot’in Nation v British Columbia (2014) the Supreme Court of Canada established Tsilhqot’in land title. While both cases are ostensibly about sovereignty and heritage, there are strong economic forces involved as well.
5 http://portal.unesco.org/en/ev.php-URL_ID=13637&URL_DO=DO_TOPIC&URL_SECTION=201.html (accessed 27 March 2017).
6 http://www.bclaws.ca/Recon/document/ID/freeside/00_96187_01#section13 (accessed 27 March 2017).
7 Michael Klassen (2013: 61) notes: “First Nations are often strong advocates of [the Act], and many recognize its potential for protecting their heritage,” given it “has provisions for designating specific ‘heritage sites’ (potentially including ‘traditional use,’ ceremonial, or sacred sites).” However, there has been much frustration with efforts to achieve this due to the province’s apparent unwillingness to find “solutions to deal with issues arising out of the HCA or protecting First Nations sacred/cultural sites ...” (p. 68).
8 There are significant similarities and differences between these countries, in terms of the history of colonization, and its effects upon and responses by Indigenous peoples; Miller (2003) provides an insightful review. There are also differences in heritage policies; in Canada, federal heritage policies are limited, with most responsibilities at the provincial or territorial level. In the United States, there is strong federal legislation for heritage matters, as well as legislative acts that protect Native American interests, including the Native American Graves Protection and Repatriation Act (1990) and the American Indian Religious Freedom Act (1978). Australian heritage is covered by both federal and state or territory laws.
9 Not all museums are able or willing to accommodate such needs (see Brown 2014: 30).
10 In fact, the number of Indigenous individuals who are archaeologists or who are employed in the realm of heritage research/management has been steadily growing worldwide (Nicholas 2010). The notion of archaeologists vs. Indigenous peoples is increasingly artificial and inaccurate.
11 Named places or features of the landscape, which represent where important events took place, are not the equivalent to the names Western societies arbitrarily assign. In the Northwest Territory (Canada), place-name recording is considered an important aspect of heritage management (http://www.pwnhc.ca/cultural-places/geographic-names/) (accessed 27 March 2017).
12 http://mukurtu.org/about/.nm (accessed 27 March 2017).
13 https://www.rrncommunity.org (accessed 27 March 2017).
14 www.sfu.ca/ipinch. (accessed 27 March 2017).
15 Fifteen such projects were funded by IPinCH, taking place in Canada, the United States, Australia, New Zealand, Kyrgyzstan, and elsewhere. In each case, community values and needs were foregrounded in a ground-up research process; studies were identified by and co-designed with the community, which benefited directly; the community reviewed research products and data to determine what information could be shared, and retained full control of the project. Information on these and the other community projects, including final reports, videos, and other materials, is available at: http://www.sfu.ca/ipinch/project-components/community-based-initiatives. (accessed 27 March 2017).
16 http://www.sfu.ca/ipinch/events/ipinch-events/working-better-together-conference-indigenous-research-ethics/ (accessed 27 March 2017).
17 www.sfu.ca/ipinch/resources/declarations/ancestral-burial-grounds (accessed 27 March 2017).
18 http://www.sfu.ca/ipinch/resources/teaching-resources/think-before-you-appropriate/ (accessed 27 March 2017).
19 This recognition continues today; while at a conference in 2008, I witnessed an Aboriginal man state during a presentation on northern Australian rock art that he “could be killed” for having seen what he was, by custom, not supposed to see of certain images from his territory that had been shown there.
20 See McNiven (2016) for recent review.
21 See Brown (2003); Owen (2008); Nicholas and Wylie (2012) for examples of how Indigenous spiritualism has been appropriated or used in unwelcome or inappropriate ways.
22 As I’ve noted elsewhere, “Ultimately heritage is not about things; it is about relationships and what these things mean to people” (Nicholas 2015).
23 Fowler and Harris also reference the notion of interdeterminancy, where one can measure either a particle’s position or momentum, but not both. This resonates also with Karl Heider’s study of the Japanese tea ceremony, where specific actions can be viewed versus the overall milieu, but not both at the same time.
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