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UNDERSTANDING and RESOLVING CULTURAL HERITAGE REPATRIATION DISPUTES BETWEEN INDIGENOUS PEOPLES and MUSEUMS by Stacey Rae Jessima

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UNDERSTANDING and RESOLVING CULTURAL HERITAGE REPATRIATION DISPUTES BETWEEN INDIGENOUS PEOPLES and MUSEUMS by Stacey Rae Jessima UNDERSTANDING AND RESOLVING CULTURAL HERITAGE REPATRIATION DISPUTES BETWEEN INDIGENOUS PEOPLES AND MUSEUMS by Stacey Rae Jessiman B.A. (Hons), Stanford University, 1991 J.D., University of Toronto, 1996 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) December 2014 © Stacey Rae Jessiman, 2014 ABSTRACT Disputes between Indigenous peoples and Western museums over repatriation of cultural heritage involve numerous complex issues -- legal, ethical, historical, cultural, spiritual, political and economic, among others – that necessitate a particularly thoughtful approach to resolving such disputes. Resolution of such disputes by negotiation or other alternative dispute resolution (“ADR”) processes should not involve simply finding quick, theoretically “win-win” solutions such as replicas or loans. Because these disputes often involve complex issues such as traumatic colonial injustices and profound differences in cultural values and dispute resolution paradigms, the dispute resolution process must involve a period of exploration and acknowledgement of such issues and differences by the parties, which I term “Relationship Building”, as a necessary precursor to any stage of problem-solving. By analysing the negotiations between various Western museums and the Kwakwaka’wakw and Haisla First Nations of British Columbia, Canada over the repatriation of cultural objects removed from their traditional territories by colonial forces in the early 20th century, this thesis seeks to demonstrate how engaging in a stage of Relationship Building early in the negotiation process is key to ensuring the parties understand their dispute holistically and experience a constructive, not destructive, process and outcome. ii PREFACE This thesis is an original intellectual product of the author, Stacey Jessiman. Fieldwork reported herein was carried out by the author and was covered by UBC Behavioural Research Ethics Board Certificate number H11-03368. iii TABLE OF CONTENTS Abstract .................................................................................................................................................. ii Preface ................................................................................................................................................... iii Table of Contents .................................................................................................................................. iv List of Figures ....................................................................................................................................... vi Terminology ......................................................................................................................................... vii Acknowledgements ............................................................................................................................. viii CHAPTER 1. Introduction .................................................................................................................. 1 1.1. Recent developments that make this thesis timely and relevant ................................................. 2 1.2. Why I chose to analyse disputes involving Indigenous peoples of Canada ............................... 7 1.3. My hypothesis about understanding and resolving repatriation disputes ................................. 14 1.4. The structure of my analysis and my methodology .................................................................. 15 CHAPTER 2. Resolving indigenous cultural heritage repatriation disputes using ADR processes . 20 2.1. Situating myself in the discussion ............................................................................................. 20 2.2. Challenges of using ADR to resolve repatriation disputes with colonial contexts ................... 21 2.3. Existing ADR processes for indigenous cultural heritage repatriation disputes ....................... 28 2.3.1. Institutional processes ..................................................................................................... 28 2.3.2. Understanding-Based mediation ..................................................................................... 31 2.4. Using Relationship Building to ensure constructive negotiation process and outcome ........... 33 CHAPTER 3. Understanding repatriation disputes: Indigenous perspectives .................................. 39 3.1. Historical context of the Kwakwaka’wakw and Haisla peoples’ repatriation requests ............ 39 3.1.1. Kwakwaka’wakw and Haisla ways of being ................................................................... 39 3.1.2. The impact of contact, missionary activity and assimilation laws and practices ............ 44 3.1.3. Dan Cranmer’s potlatch and government confiscations of regalia ................................. 53 3.1.4. The search for the Potlatch Collection ............................................................................ 58 3.1.5. The legend of the G’psgolox pole ................................................................................... 60 3.1.6. The removal of and search for the G’psgolox pole ......................................................... 61 3.1.7. Modern-day procedures aimed at redressing colonial harms .......................................... 64 3.2. Reasons for the Haisla and Kwakwaka’wakw peoples’ repatriation quests ............................. 72 3.2.1. Righting historic wrongs ................................................................................................. 74 3.2.2. Healing traumas and losses ............................................................................................. 79 3.2.3. Respecting tradition ......................................................................................................... 81 3.2.4. Reaffirming identity ........................................................................................................ 83 3.2.5. Reinvigorating cultural practices and preventing further loss ........................................ 85 3.2.6. Transmitting history and knowledge to future generations ............................................. 87 3.2.7. Sharing history and traditions with museums, and creating constructive relationships .. 88 CHAPTER 4. Understanding repatriation disputes: museum perspectives ...................................... 91 4.1. The role of Western museums in the colonial project .............................................................. 91 4.2. Late 20th century efforts to decolonize/indigenize Western museum practices ........................ 93 4.3. Reasons for the museums’ responses to the repatriation claims ............................................... 95 4.3.1. The museum believed it acquired valid title ................................................................... 95 4.3.2. Legislative impediments to repatriation .......................................................................... 96 4.3.3. Fiduciary duties of the museum’s managers ................................................................. 100 4.3.4. All peoples’ cultural heritage belongs to mankind ........................................................ 103 4.3.5. Museum professionals’ training: preservation vs. use .................................................. 105 4.3.6. An “attachment” or right arising from conserving/caring for the object ...................... 106 4.3.7. The background/knowledge of the museum’s director/staff ......................................... 108 iv 4.3.8. Concern about “opening the floodgates” ...................................................................... 111 4.3.9. Decolonizing museological practices and creating better relationships ........................ 113 CHAPTER 5. Analysing process and outcome of the repatriation negotiations ............................ 114 5.1. Anatomy of the Potlatch Collection repatriation negotiations ................................................ 114 5.1.1. Legal issues ................................................................................................................... 114 5.1.2. Cultural issues ............................................................................................................... 121 5.1.3. Financial issues ............................................................................................................. 126 5.2. Anatomy of the G’psgolox pole repatriation negotiations ...................................................... 128 5.2.1. Legal issues ................................................................................................................... 128 5.2.2. Cultural issues ............................................................................................................... 133 5.2.3. Financial issues ............................................................................................................. 138 5.3. Analysis of the process and outcome of the repatriation negotiations .................................... 140 CHAPTER 6. Conclusion ............................................................................................................... 147 BIBLIOGRAPHY .............................................................................................................................. 150 v LIST OF FIGURES Figure 1 The 4-phase Negotiation Process
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