Aboriginal Intangible Property in Canada: An Ethnographic Review
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.
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).
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.
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.
30On this last point Robbins (1999:21) agrees.
31See for example Indian Act, R.S.C. 1906, c.81, s.149.
34Cramner-Webster 1991: 239.
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.
39Suttles 1987a:8; Amoss 1977b.
40Barnett 1955:142; Collins 1979:247.
41Collins 1979:247; Suttles 1987a:8.
46Suttles 1987c:108; Stern 1934:57; Jenness 1955:71; Barnett 1955:141.
52Suttles 1982:59; Codere 1948.
53Codere 1948: Duff 1952:123-126; Lévi-Strauss 1982.
54See for example the example from Musqueam in Thom (2001).
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).
68Collins 1966:429; see also Suttles 1987d:201; Barnett 1955:138-9.
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.
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.
79See also Jenness 1943.
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,  3 S.C.R. 1010 .
92Fiske and Patrick 2000.
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.
105Rasmussen 1929: 109.
111Angutingmarik in Rasmussen 1929:132.
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.
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.
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.
132Young 2001:2033, citing Ewers' classic study 1955:262-271.
133Hoebel 1942:965, working from Lowie's accounts of these property systems.
136Steward 2001:336; Lowie 1920:239.
142Greene 2001. See also her other works which specifically review Kiowa intangible property in teepee design Greene 1993 and Greene & Drescher 1994.
153Dempsey 2001c:610, 616; Wissler 1918; Archambault 2001:987.
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.
164See also Segale 1941.
165Hallowell 1943:128 9.
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.
170Brascoupé and Endermann 1999:2.
171Brascoupé and Endermann 1999:4.
172See, for example, Brown 2003.