Aboriginal Intangible Property in Canada: An Ethnographic Review

Endnotes

¹'None of the contents of this report necessarily represent the views or opinions of any of the Aboriginal peoples described herein, nor do they necessarily reflect the views of Industry Canada. This report is intended to be without prejudice to any Aboriginal or treaty rights.

²'Customary protocols' refers to rules in relation to rights or powers, and responsibilities or duties associated with the acquisition, use, transfer, management and ownership of cultural expressions or traditional knowledge. Where these protocols are embedded in more formal systems of social relations, the term 'customary laws' is used.

³'Traditional knowledge' may refer to knowledge associated with such cultural expressions, other historical knowledge, environmental and technical knowledge, ritual knowledge, or other areas of specialized knowledge.

⁴Traditional cultural expressions' may refer to tangible or intangible expressions, or both. Examples may relate to, but are not restricted to oral narratives and stories, songs and/or instrumental music (drumming), performances (dances, rituals), titles (names), imagery and designs (masks, teepee designs, wampum belts), woodwork (totem poles), weaving (baskets, articles of clothing), and sacred objects (sacred medicine bundles). The bracketed examples are for illustrative purposes only. Where these expressions are engaged in property relations, the terms 'intangible property' and 'incorporeal property' are (interchangeably) used.

⁵The 'cultural regions' referred to here are based on those used in the Smithsonian Institution's 20 volume series Handbook of North American Indians. These units are somewhat abstracted generalizations of cultural similarity within these groups and between them. However, as such generalizations always do, these regional groupings of culture belie important similarities that are also found between groups and differences among them. They should not be seen as definitive or as necessarily representing current Aboriginal identities.

⁶The use of the descriptive and analytical terms in the report is intended for clarity from policy and generalist perspectives and makes no claims to perfectly reflect the nuance of Aboriginal world views. Indeed, a far more substantial work would be needed to fully engage these views. Particularly concerning to us is the frequent use of terms such as 'sale', 'purchase' and 'barter' in the literature. The intent is not to reduce these complex cultural issues to mere commodities. Rather, it is an attempt to describe, using plain English, some of the social engagements that Aboriginal people have with respect to their traditional knowledge and traditional cultural expressions.

⁷Kwakwaka'wakw has frequently been anglicized as Kwakiutl. Although we use the term 'Coast Salish' throughout this paper, the data we have drawn on is specific to the Central Coast Salish, as defined by Suttles 1990.

⁸Jorgenson 1980:135.

⁹Jorgensen 1980:135, 138.

¹⁰See Cole and Chaikin 1990.

¹¹'na'mima has frequently been simplified as numyam or numema in the literature.

¹²See Lévi-Strauss (1982:163-87).

¹³Goldman 1937:185.

¹⁴ Codere 1990:366.

¹⁵This list has been summarized from a number of sources, including: Bunzel 1938:358; Codere 1990:366; Goldman 1937:196; and Holm 1990:379.

¹⁶Goldman 1975:44 5.

¹⁷Suttles 1991:92, vis Drucker and Heizer 1967:113.

¹⁸Bunzel 1938:358.

¹⁹Harrison 1992:236-7.

²⁰Codere 1990:367.

²¹Suttles 1991:94.

²²Codere 1990:367; see also Goldman 1937:186.

²³Bunzel 1938:360; Harrison 1992:228.

²⁴Boas 1966:258 9.

²⁵Ruth Benedict 1935:151.

²⁶Harrison 1992:228, emphasis in original.

²⁷Robbins 1999.

²⁸Robbins 1999:20.

²⁹Robbins 1999:21.

³⁰On this last point Robbins (1999:21) agrees.

³¹See for example Indian Act, R.S.C. 1906, c.81, s.149.

³²Cramner-Webster 1991:227-9.

³³Cramner-Webster 1991:232.

³⁴Cramner-Webster 1991: 239.

³⁵Jenness 1934-5:52.

³⁶Amoss 1977a, 1978.

³⁷Homer Barnett (1955:141) recorded the term for this type of hereditary property as 'tcalängan' in Saanich and 'otakan' in Comox. His transcription of these terms was not informed by a linguistic methodology and we have not encountered these terms published in other sources, so we are hesitant to use them here.

³⁸Collins 1979:247.

³⁹Suttles 1987a:8; Amoss 1977b.

⁴⁰Barnett 1955:142; Collins 1979:247.

⁴¹Collins 1979:247; Suttles 1987a:8.

⁴²Barnett 1955:79.

⁴³Barnett 1955:110.

⁴⁴Collins 1979:247.

⁴⁵Suttles 1982:59.

⁴⁶Suttles 1987c:108; Stern 1934:57; Jenness 1955:71; Barnett 1955:141.

⁴⁷Suttles 1987a:10.

⁴⁸Suttles 1987c:106.

⁴⁹Suttles 1987a:10.

⁵⁰Stern 1934:56.

⁵¹Jenness 1955:71.

⁵²Suttles 1982:59; Codere 1948.

⁵³Codere 1948: Duff 1952:123-126; Lévi-Strauss 1982.

⁵⁴See for example the example from Musqueam in Thom (2001).

⁵⁵Bierwert 1999:169-170.

⁵⁶Kew 2000.

⁵⁷Bierwert 1999, chapters 4 and 6.

⁵⁸Barnett 1955:141, 250; Jenness 1934-5:52.

⁵⁹Jenness 1934-5:53. See also the example of this with the variation on the First Salmon ceremony practised by one Nanaimo family (Barnett 1955:90).

⁶⁰Jenness 1934-5:52.

⁶¹Barnett 1955:141.

⁶²Suttles 1987b:19.

⁶³Gunther 1927:307.

⁶⁴Barnett 1955:132.

⁶⁵Barnett 1955:133.

⁶⁶Jenness 1934-5:55.

⁶⁷Collins 1966:426.

⁶⁸Collins 1966:429; see also Suttles 1987d:201; Barnett 1955:138-9.

⁶⁹Barnett 1955:134.

⁷⁰Jenness 1934-5:55.

⁷¹Collins 1966:430.

⁷²Haeberlin and Gunther 1930:46; Jenness 1934-5:56.

⁷³The nature and form of property has been extensively debated for Subarctic communities in the form of land tenure and territory, with a long-standing debate between those who believed that Subarctic communities have defined, family-owned hunting territories, and those who argue that they have no clear property concepts in respect of land outside of those imposed or acquired from colonial interactions in the fur trade (summarized in Rogers 1981). In part because of this attention to material property in the ethnographic literature that intangible property has been largely overshadowed in the published literature.

⁷⁴cf. Jenness 1943; Duff 1951.

⁷⁵Morice 1895:3.

⁷⁶Helm 1968:119.

⁷⁷Goldman (1940:334 335) describes the extended family as consisting of a group of male siblings, their wives, children and married sons' wives and children. Members of this group, the sadeku, recognized the limited authority of a headman, often the first born male of the sibling group, called the detsa.

⁷⁸Tobey 1981:420-2.

⁷⁹See also Jenness 1943.

⁸⁰Jenness 1943.

⁸¹MacLachlan 1981:463.

⁸²Honigmann 1981:446.

⁸³McClellan 1981:488.

⁸⁴MacLachlan 1981:463.

⁸⁵Tobey 1981:422.

⁸⁶Tobey 1981:420.

⁸⁷Tobey 1981:420.

⁸⁸Steward 1960:732 740.

⁸⁹Diamond Jenness (1943) provides a detailed description of the Northern Carrier potlatch system.

⁹⁰See especially Mills 1994.

⁹¹Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 .

⁹²Fiske and Patrick 2000.

⁹³Lantis 1984:218.

⁹⁴Lantis 1984:218.

⁹⁵Spenser 1984:334.

⁹⁶Erinaliut (singular) Erinaliu·tit (plural) are forms of the Inuktitut term for 'power word/phrase' given by Rasmussen. As he did not provide a key to his orthography and the term was not listed in the recent Inuktitut dictionaries consulted, we are unable to provide a standardized contemporary spelling.

⁹⁷Weyer 1932:194; Boas 1907:153, 506; Lowie 1928:553-4.

⁹⁸Rasmussen 1929:157.

⁹⁹Rasmussen 1929:157.

¹⁰⁰Rasmussen 1929:157.

¹⁰¹Weyer 1932:195.

¹⁰²Rasmussen 1929:165.

¹⁰³Rasmussen 1929:165.

¹⁰⁴Rasmussen 1929:166-168.

¹⁰⁵Rasmussen 1929: 109.

¹⁰⁶Weyer 1932:195.

¹⁰⁷Stefánsson 1919:369.

¹⁰⁸Stefánsson 1919:370.

¹⁰⁹Jenness 1922:92.

¹¹⁰Jenness 1922:92,191.

¹¹¹Angutingmarik in Rasmussen 1929:132.

¹¹²Jenness 1922:93.

¹¹³Jenness 1922:195.

¹¹⁴Weyer 1932:435.

¹¹⁵Weyer 1932:433-4; Stefánsson 1919:170, 374; Jenness 1922:195; Boas 1888:594.

¹¹⁶See for example Boas 1888:554-8; Bird 2002:13.

¹¹⁷Blackduck 2001; Bird 2002.

¹¹⁸Bird 2002:22.

¹¹⁹Bird 2002:30-1.

¹²⁰Crow territories are directly south (in Montana) of Canadian High Plains First Nations: Blackfoot, Gros Venture and Assiniboine communities. Hidatsa are the southern (in North Dakota) Prairie Plains neighbours of Canadian Assiniboine communities.

¹²¹Lowie 1920:238.

¹²²Lowie 1920:239.

¹²³Lowie 1920:239.

¹²⁴Bowers 1965.

¹²⁵Raczka 1979:76; Lowie 1928:555-560.

¹²⁶Though the details about practices related to 'bundles' and important intangible property associated with them are from articles particular to Blackfoot communities, the general principles are widely applicable to other Plains communities, and are valuable for understanding these customary protocols.

¹²⁷Steward 2001:336; Lowie 1920:239; Driver 1969:285.

¹²⁸Steward 2001:338.

¹²⁹Steward 2001:341.

¹³⁰Steward 2001:338.

¹³¹Young 2001:1032-3.

¹³²Young 2001:2033, citing Ewers' classic study 1955:262-271.

¹³³Hoebel 1942:965, working from Lowie's accounts of these property systems.

¹³⁴Steward 2001:336.

¹³⁵Lowie 1920:239.

¹³⁶Steward 2001:336; Lowie 1920:239.

¹³⁷Lowie 1928:556.

¹³⁸Lowie 1928:556.

¹³⁹Lowie 1928:558.

¹⁴⁰Raczka 1980:34.

¹⁴¹Greene 2001:1052-1053.

¹⁴²Greene 2001. See also her other works which specifically review Kiowa intangible property in teepee design Greene 1993 and Greene & Drescher 1994.

¹⁴³Greene 2001:1052.

¹⁴⁴Raczka 1979:69.

¹⁴⁵Raczka 1992.

¹⁴⁶Raczka 1980:30.

¹⁴⁷Raczka 1980:20.

¹⁴⁸Raczka 1980:30,32.

¹⁴⁹Raczka 1980:32.

¹⁵⁰Grinnell 1901:655-670.

¹⁵¹Greene 2001.

¹⁵²Grinnell 1901:655.

¹⁵³Dempsey 2001c:610, 616; Wissler 1918; Archambault 2001:987.

¹⁵⁴Dempsey 2001b:631.

¹⁵⁵Brpasser 1979:32.

¹⁵⁶Brpasser 1979:32.

¹⁵⁷Greene 2001:1052.

¹⁵⁸Raczka 1980:32.

¹⁵⁹Raczka 1980:34.

¹⁶⁰Noble 2002.

¹⁶¹Boas' work is most notably his work with Kwakwaka'wakw people, which will be discussed more fully later in this report. Of the many thousands of pages of Boas' writing on this subject, Boas 1966 is a useful synthetic starting point; Suttles 1991 has given perhaps the most lucid account of the property system drawing on the Boas data.

¹⁶²Lowie 1920, 1928; Bunzel 1938 are prominent examples of Boas' students writing about intangible property in Aboriginal cultures. See also Lowie 1949:260 5 for additional South American examples of incorporeal property. Of interest in Lowie's 1920 work are his examples from the Northwest Coast, in his case the incorporeal property held by Nuu chah nulth (formerly called Nootka), the intangible property system of the Crow people and the importance of individual incorporeal property rights in Plains religious practice, the later example which is discussed in detail later in this report.

¹⁶³Cappannari 1960:140.

¹⁶⁴See also Segale 1941.

¹⁶⁵Hallowell 1943:128 9.

¹⁶⁶Hallowell 1943:134.

¹⁶⁷Hann 1998 on property in general, and in particular pages 4 5, 25, and 30 31 on theorizing intangible property in particular.

¹⁶⁸See Harrison (1992) for an excellent discussion of ritual as intellectual property in Kwakwaka'wakw and Melanesian traditional societies. The study shows how such property is valued and the kinds of social actions (such as feasting and disputes. People in these societies engage over its distribution.

¹⁶⁹Harrison 1992:234.

¹⁷⁰Brascoupé and Endermann 1999:2.

¹⁷¹Brascoupé and Endermann 1999:4.

¹⁷²See, for example, Brown 2003.