Aboriginal Intangible Property in Canada: An Ethnographic Review
3. Subarctic Region
The vast area which has been described as the Subarctic region of Aboriginal cultures in North America is the largest in Canada. There are many cultural groups from south to north, west to east living in this region that speak a diversity of languages and practice their own cultural traditions. Long histories of interactions across and between cultural regions (Subarctic and Northwest Coast, Subarctic and Plains, or Subarctic and Arctic, for instance) have influenced the dynamics of cultural expression within the Subarctic region, as have the unique adaptations to the diverse local subarctic environments.
It is in this broad cultural context that our example of intangible property in Carrier culture is engaged.73 Carrier is a particular manifestation of the subarctic cultural way of life, with clear parallels to the neighbouring Northwest Coast area. The two main forms of intangible property reported for the Carrier are hereditary titles and personal, clan crests and the various prerogatives associated with these things. Though all other Subarctic groups may not share these particular expressions of intangible property, many of the social elements upon which they are build resonate throughout the Subarctic region.
The Carrier people speak a northern Athapaskan language and live in the mountainous north central interior of British Columbia between the Rocky Mountains and the Coastal Range. Reserve communities are primarily located along the numerous rivers and lakes of the upper Skeena River and Fraser River systems. The Carrier are organized into fourteen distinct named groups (historically referred to as 'subtribes',74) which share a common dialect75 and occupy and use their own territories,76 drawing on the connection that individuals and extended families have to their respective communities, territories and ancestors.77 All members, regardless of which of these communities they live in, are born into their mother's clan. Clan membership is important in establishing marriage rules (marrying someone from another clan), and inheritance rules for material and intangible property. The main kinds of intangible clan property are titles and crests. Within clans, there are various status positions, which may be aspired to by individuals during their life. Clan titles and crests reflect these social positions.
Tobey has provided an excellent, concise review of Carrier intangible property in titles and crests, and provides the basis for this section.78 Each clan in Carrier society has a stock of titles which, when carried by an individual, are associated with high social rank and privilege. Inheritance and succession of these titles follow strict cultural protocols. Titles are inherited frequently passing from a man to his sister's son or daughter. If it is not possible to pass hereditary titles on to such a close heir, more distant family members can be selected. However, property must pass along clan lines, thus limiting the distribution of this property to one's mother's family line.79
These hereditary titles are confirmed when a person is able to give a potlatch. At such a potlatch, stories, song and dances and other ceremonial prerogatives that come with the title could be told. These prerogatives, in addition to the title itself, form the core elements of intangible property in Carrier society. Proper validation of titles at potlatches is key to the Carrier intangible property system. If a person who had inherited a title or hoped to pass a title on was unable for some reason to hold a potlatch, the validation or transfer was unable to occur.80
Other Aboriginal communities living in the western Subarctic region, including for instance the Tahltan81, Kaska82 and the Tagish83 also follow similar customary protocols with respect to intangible property in clan titles. Tahltan, for instance "alertly defended exclusive rights" such as the performance of clan song, stories and dances associated with hereditary titles. To assume a hereditary title, symbolic and economic goods are distributed and consumed in recognition of the validity of the property claim.84
Not all intangible property is associated with titles. Clan and personal crests are similarly respected as property in Carrier culture. Clans frequently have multiple crests that are associated with mythical stories recounting the origins of humans in the Carrier world. These sacred stories are highly regarded by all, and abuse, misuse or disrespect of a clan crest is not tolerated.
The designs and figures illustrated in crests symbolize the clan, and can be represented on such places as houses, grave boxes, ceremonial hats, blankets, or even embodied on a person in a tattoo. Like clan titles, there are ceremonial prerogatives associated with clan crests, including songs, dances, house styles and other special privileges.85 Any member may perform or represent the prerogatives associated with clan crests, but only those people with high social standing (as sometimes reflected by holding a title) could do so during a potlatch.86
Title holders and other high ranking individuals within the clan frequently own one or more personal crests. Crests associated with titles are "the inalienable property of the clan", while those which are not may be bought sold or traded by the owner. Like titles, personal crests are inherited through the mother's line. There are similar customary protocols with respect to the display and performance of the stories associated with personal crests at potlatches as those for clan crests. Only the crest owner may perform the story, and doing so is considered necessary to validate and have recognized personal crest ownership.87
The potlatch or feasting system is the economic centre of the Carrier people.88 It is the central institution for exercising, asserting, recognizing and regulating the customary protocols and laws related to clan intangible property. During these potlatches ceremonial prerogatives such as dances, designs, songs and stories, that are associated with clan intangible property (titles and crests) are performed or displayed.89 Such opportunities allowed the sponsor of the potlatch to gain public recognition and endorsement of ownership. The right to publicly display the crest's motif is maintained and is witnessed by those in attendance as being the property of the holder.
These Carrier people have continued to use and recognize their intangible property. During the trial in Delgamuukw v. R (a landmark Aboriginal title case ruled on in 1997 by the Supreme Court of Canada), the Wet'suwet'en (one of the western Carrier groups) demonstrated the important links between the intangible properties held by clans and individuals and their relationships to the land. They told and performed their ceremonial prerogatives in the courtroom, laying out their customary laws as evidence of the various threads of property relationships that wind their way through their culture.90 In particular, the Wet'suwet'en entered as evidence, a "kungax" which Chief Justice Lamer characterized as:
…a spiritual song or dance or performance which ties them to their land…The most significant evidence of spiritual connection between the Houses and their territory was a feast hall where the Gitksan and Wet'suwet'en people tell and retell their stories and identify their territories to remind themselves of the sacred connection that they have with their lands. The feast has a ceremonial purpose but is also used for making important decisions.91
Such customary laws, as Fiske and Patrick have characterized them, are also at the heart of the way the Lake Babine First Nation, another Carrier group, have displayed and defined their community interests in treaty negotiations and assertions of Aboriginal self-government.92 These interactions with the state have shown the difficulty, and potential promise with respect to ideas of legal pluralism, of the interaction between property systems in different cultures that are predicated on fundamentally different social organisations and economies.