Aboriginal Intangible Property in Canada: An Ethnographic Review
2. Northwest Coast
The most immediately familiar kinds of intangible property among the Coast Salish are the professional lore, ritual knowledge, and certain moral advice that are often referred to in Salishan languages as Snew.38 Snew has been defined as private intangible property in the context of secret knowledge.39 Specialized technical skills for harvesting resources or doing a craft or trade well is derived from knowledge developed by ancestors and held privately in families.40 This information may not even be widely known within a family, but rather is taught selectively to individuals with certain aptitudes and community standing, from one generation to the next.
Some of the traditional knowledge about food-getting sites, including practical and ritual knowledge for the successful operation of these places are held privately by families.41 Private ritual knowledge can include special songs or words that can be used to engage one's guardian-spirit helper in these locations. Other songs were held in secret by families and sung in preparing for fishing or hunting. Though in the past everyone fished and hunted, those who were 'professionals' were considered supernaturally favoured and were generally owners of Snew that fostered these special relationships.42
Private knowledge also relates to the specialized skills needed to make certain things, such as canoes, baskets, traditional clothing and regalia, certain food-getting tools and implements, and so on. The canoe-maker is a good example. A canoe-maker holds the tools and tricks of the trade as guarded secrets. He or she will often work alone, sometimes in secret where such techniques can not be observed by others. The canoe-maker will have certain songs that is held privately and which are learned in order to aid in the felling, splitting, excavating and steaming of a canoe. Anthropologist Homer Barnett reported from his observations in the 1930s that "it was a serious personal offense for anyone to try to" watch the canoe-maker at work and try to learn the secrets of the trade.43
Another type of Snew is the esoteric information concerning the approach of guardian spirits.44 In the Coast Salish world-view, guardian spirits are required to be successful in life's endeavours. They are called upon to aid in everything from basic economic production, to overcoming personal life challenges. It is usually assumed in Coast Salish life that if someone is successful in what they do, that they 'must have something', meaning have a guardian spirit. While the spirits themselves were not property in any way, careful instruction on how to obtain one — through fasting, seclusion and other means, was held in private by families as a part of their Snew.
It is worth mentioning briefly some internal and ex situ challenges that Coast Salish intangible property has faced in recent years. For Snew one of the biggest challenges has been language loss. Salishan languages along the coast are highly threatened with only a few speakers remaining in some communities. With this loss comes a loss of some of the detailed traditional knowledge that is held privately. The proprietary nature of some of this knowledge has made it even more at risk of being lost, as the older generation is sometimes hesitant to pass it on. This is a serious challenge in Coast Salish communities, and one that is being faced today by some Elders, leaders and youth with positive initial results. A dramatic shift in the centre of Coast Salish economies from potlatching to mainstream labour and market economies has also impacted on the relative everyday value of certain intangible property related to resources. Intellectual property such as traditional ecological and technical knowledge, which may continue to have value in market economies, may be able to be afforded protection through the current Canadian legal intellectual property regime.
There are a number of important ritual prerogatives in Coast Salish culture associated with cleansing, a type of ritual performance that is "used to 'wash' persons undergoing life crises, changes in status, or removal of some source of shame.45 These prerogatives are called ts'exwtén in several Salishan languages. These rituals include the sxwayxwey mask dance, a goat horn rattle ritual shelmuxwtses, and several others that are not as well documented in the published ethnographic literature.46 Wayne Suttles, the preeminent ethnographer of Coast Salish culture has observed that ts'exwtén "form an important class of inherited privileges", and that the paraphernalia and ritual knowledge associated with the ceremony "were restricted by primogeniture or other means to certain members of a lineage [family members tracing descent from a common ancestor]".47
The paraphernalia associated with ts'exwtén and the images associated with them, including the sxwayxwey mask and the goat horn rattle, are carefully guarded. The person who possesses them (who is not always the owner) stores them in private locations in the house so that not even other family members may disturb them. Additional rights related to the paraphernalia include a ritualist's own "hereditary set of designs that varied with different functions, such as healing the ghost-struck, and recovering lost 'vitalities' as well as performing puberty rites".48 Ritual knowledge would include certain words or acts that are need to successfully perform the cleansing rite.
While these rights may be restricted to certain individuals within the lineage, they may be "performed by the owner for any member of the lineage".49 During the performance, the host will hire an orator "to announce the purpose of the gathering and to explain his inherited right to use the particular type of" ts'exwtén.50 Though the lineage may have owned the rights to a ts'exwtén for generations, over time many of these rights have spread widely among Coast Salish communities through the mechanism of intervillage intermarriage.51 A good example is the sxwayxwey mask. There are several different styles of sxwayxwey masks, each associated with a different origin story.52 In one story, the mask emerges from the water near Chilliwack (an area about 100 kilometers up the Fraser River) and is presented to a young girl. She and her female descendants own the mask and may pass it and associated ritual prerogatives along to male members in their families to dance. The male members who possess it have performative rights, but do not in most cases have similar ownership rights of inheritance or granting performance licence.53
Current conflicts demonstrate that this intangible property still holds an important place in the community. For ts'exwtén, the challenges have come from the outside, with museums having masks and regalia that was obtained long ago under very different cultural and political circumstances.54 Recently, owners of masks and the rights to carry masks have negotiated with several museums such as the UBC Museum of Anthropology and the McCord Museum at McGill so that those old masks in collections are not displayed or otherwise inappropriately revealed.55 As Kew has observed, this proprietary relationship to ts'exwtén has been a major factor in Coast Salish art not becoming a large commercial industry, unlike many other Northwest Coast and Native American art traditions.56 For the Coast Salish, these important ts'exwtén prerogatives can not be commodified or sold, though they have immeasurable continuing value for 'cleansing' these communities. Anthropologists have also caused problems by publishing and discussing details of tx'exwtén that were shared with them with little knowledge of how widely the material once printed would be circulated (both within and outside of the Coast Salish communities from where they came).57 Here, the ideas of public domain and academic freedom come up against local concepts of intellectual property.
Certain notable extended-family groups (xwnets'álewem or 'House' as mentioned earlier) collectively own 'property of privilege' including hereditary names, legends, songs, dances, secret words, medicinal remedies, and ceremonial prerogatives.58
Individuals who are members of these noble families are able to claim rights to these properties, but must validate their claims through public events, such as a potlatch or family gathering. New intangible House property can be created, provided that the right gets ratified at a public gathering. Typically, this is at a potlatch where the public generally hears "the statement of claim without demur and accept[ed] the gifts that follow[ed] the statement".59
Individuals with no legitimate claim to this property may know some of their details, but they are not able to "recite them in public or depict them on any carving".60 An excellent example of this was given by Homer Barnett in his 1955 ethnography on the Coast Salish of British Columbia, where a House story and related ceremonial prerogatives was told to him. The informant was very aware of his transgression in revealing these intangible House property to someone who was not eligible to know them. Barnett reports:
Tommy Paul's [intangible House property] were the hollow wooden rattle, the sxaihwe performance, and the story of the Sanetch first man, kwalakwanthat. A variant of the dog-husband story was localized at skaihai (Mill Bay) and was the [intangible House property] there. Mrs. Paul's grandfather knew siwin [secret words] for the winter-dance initiation, and the 'story' of that belonged to her [sic]. Paul was fully conscious of his violation of rights in talking about his wife's story or about any other person's privileges. Even the right to tell about a privilege belonged to the owner. He would 'be jealous' if he knew that someone else had been talking; he would 'want something'. Paul told me about his wife's grandfather's siwin only so that I would 'be thinking what to do for her'. Anciently, nothing whatever would have been devolved. Any outside knowledge of the esoteric particulars was, of course, guarded against by the secrecy surrounding the instruction. However, as far as real theft was concerned, caution was ordinarily unnecessary, for one would not think of publicly claiming another's [intangible House property]. He would be ridiculed unmercifully unless he could show a legitimate blood connection with its owners and could back-up his claim with a property distribution.61
That these kinds of intangible property have additional economic value is clear from the example of certain inherited songs seye'wenem. Suttles has reported how "if the amount of wealth required [to pay someone] were very very great" the person owing might 'pay for it with a song'. When such a song is sung at a potlatch, the person to whom something is owed "might then feel obliged to thank him for his performance with a gift of wealth, or treat him in the same fashion when the situation was reversed".62 These inherited wealth songs belong to a family and are transmitted from father to son.63
The final and perhaps most important type of intangible House property to be considered here is hereditary names. In Coast Salish society, there are several different types of names held by an individual during their life. Traditionally, everyone was given what we might call a nickname as a child.64 Today, Christian names are the universal practice. Held within Houses, however, are honoured hereditary names which are bestowed on an individual later in life.65 Each House has a pool of hereditary names which are passed on between generations. Some of these names date back to mythological times, having been held exclusively by these families for centuries.66 As a rule, only one living person should hold a hereditary name at a time, though exceptions are occasionally made to this rule.67
A formal ceremony is held when a name is being given, and the bestowal is often validated with a potlatch. Although the specific practices for a naming ceremony vary between families, generally, when the guests are assembled, and any ritual performance such as a sxwayxwey mask dance is complete, the family spokes-person who is giving the name announces the name and calls on the older generation present to witness the giving. They are given gifts to mark their witnessing of the event. If there came to be a conflict over who has the right to hold these prestigious titles, this older generation would be called on to "affirm the owners right to the name".68
The names in themselves hold prestige for the bearer, as they are the names of honoured ancestors. They also hold the privileges accorded to the bearers of the name in the past.69 The Houses which held these names generally lived in the same area from time immemorial, linking the names to these ancestral territories and resource sites.70 A name is generally connected with the village which that ancestor came from. Even if the bearer of the name resides in a different village than that ancestor, holding the name "was sufficient to establish rights for his descendant to use the resources of the village" of that honoured ancestor.71
Naming is a practice that is taken very seriously by Coast Salish peoples. It is a serious offence to take a name from a House or extended-family to which a person does not belong. Disputes over the taking of a name are resolved through the potlatch system, with 'speakers' being hired to explain the family prerogative in the name and gifts distributed to offended people.72
Of the intangible House property, hereditary names have provided some of the biggest challenges in the contemporary context. There is a constant dialogue and debate in these post-residential school communities about who has rights to hold these names. Outsiders have also taken an interest in some of these names. The Swaneset for a golf course near Vancouver has caused great concern for the Katzie First Nations' community whose original ancestor held that most prestigious name. Political attempts by the band to change the name were not successful and it stands as a very public, stolen House property.