00Bell&Napoleon_full_text:00Macfarlane_full_text.qxd 7/18/2008 12:52 PM Page i First Nations Cultural Heritage and Law 00Bell&Napoleon_full_text:00Macfarlane_full_text.qxd 7/18/2008 12:52 PM Page ii Law and Society Series W. Wesley Pue, General Editor The Law and Society Series explores law as a socially embedded phenom- enon. It is premised on the understanding that the conventional division of law from society creates false dichotomies in thinking, scholarship, edu- cational practice, and social life. Books in the series treat law and society as mutually constitutive and seek to bridge scholarship emerging from inter- disciplinary engagement of law with disciplines such as politics, social theory, history, political economy, and gender studies. A list of other titles in this series appears at the end of this book. First Nations Cultural Heritage and Law is the Wrst of two volumes. The sec- ond volume is Protection of First Nations Cultural Heritage: Laws, Policy, and Reform, edited by Catherine Bell and Robert K. Paterson. Both are in the Law and Society series. 00Bell&Napoleon_full_text:00Macfarlane_full_text.qxd 7/18/2008 12:52 PM Page iii Edited by Catherine Bell and Val Napoleon First Nations Cultural Heritage and Law Case Studies, Voices, and Perspectives 00Bell&Napoleon_full_text:00Macfarlane_full_text.qxd 7/18/2008 12:52 PM Page iv © 2008 All rights for Chapters 1, 4, 5, and 7 of this book are reserved to the authors and the following First Nation collaborators, respectively: Catherine Bell and the U’mista Cultural Society; Eric McLay and the Hul’qumi’num Treaty Group; Catherine Bell and the Mookakin Cultural Society; and Catherine Bell and the Ktunaxa/Kinbasket Tribal Council. No part of these chapters may be reproduced, stored in a retrieval system, or transmitted in any form or by any means without the prior permission of the authors named above. All rights to the remaining contents of this book are reserved to UBC Press. No part may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without prior written permission of the publisher, or, in Canada, in the case of photocopying or other reprographic copying, a licence from Access Copyright (Canadian Copyright Licensing Agency), ww.accesscopyright.ca. 20191817161514131211100908 54321 Printed in Canada on ancient-forest-free paper (100 percent post-consumer recycled) that is processed chlorine- and acid-free, with vegetable-based inks. Library and Archives Canada Cataloguing in Publication First Nations cultural heritage and law: case studies, voices, and perspectives / edited by Catherine Bell and Val Napoleon. (Law and society series, 1496-4953) Includes bibliographical references and index. ISBN 978-0-7748-1461-4 1. Cultural property – Protection – Canada – Case studies. 2. Cultural property – Protection – Law and legislation – Canada. 3. Indians of North America – Legal status, laws, etc. – Canada. 4. Indians of North America – Land tenure – Canada. 5. Indians of North America – Material culture – Canada. 6. Native peoples – Material culture – Canada. I. Bell, Catherine Edith, 1961- II. Napoleon, Val, 1956- III. Series: Law and society series (Vancouver, B.C.) E78.C2F47 2008 971.004’97 C2008-901790-0 UBC Press gratefully acknowledges the Wnancial support for our publishing program of the Government of Canada through the Book Publishing Industry Development Program (BPIDP), and of the Canada Council for the Arts, and the British Columbia Arts Council. This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Programme, using funds provided by the Social Sciences and Humanities Research Council of Canada. UBC Press The University of British Columbia 2029 West Mall Vancouver, BC V6T 1Z2 604-822-5959 / Fax: 604-822-6083 www.ubcpress.ca 00Bell&Napoleon_full_text:00Macfarlane_full_text.qxd 7/18/2008 12:52 PM Page v Contents Preface: Respect for Elder Knowledge / vii Eric McLay and Lea Joe interviewing Luschiim, Arvid Charlie Dorothy First Rider, in consultation with Frank Weasel Head Acknowledgments / xi Introduction, Methodology, and Thematic Overview / 1 Catherine Bell and Val Napoleon Part 1: Our Voices, Our Culture 1 Recovering from Colonization: Perspectives of Community Members on Protection and Repatriation of Kwakwaka’wakw Cultural Heritage / 33 Catherine Bell, Heather Raven, and Heather McCuaig, in consultation with Andrea Sanborn, the U’mista Cultural Society, and the ‘Namgis Nation 2 The Law Is Opened: The Constitutional Role of Tangible and Intangible Property in Gitanyow / 92 Richard Overstall, in consultation with Val Napoleon and Katie Ludwig 3 Northwest Coast Adawx Study / 114 Susan Marsden 4 ‘A’lhut tu tet Sul’hweentst [Respecting the Ancestors]: Understanding Hul’qumi’num Heritage Laws and Concerns for the Protection of Archaeological Heritage / 150 Eric McLay, Kelly Bannister, Lea Joe, Brian Thom, and George Nicholas 5 Repatriation and Heritage Protection: ReXections on the Kainai Experience / 203 Catherine Bell, Graham Statt, and the Mookakin Cultural Society 00Bell&Napoleon_full_text:00Macfarlane_full_text.qxd 7/18/2008 12:52 PM Page vi 6 Poomaksin: Skinnipiikani-Nitsiitapii Law, Transfers, and Making Rela- tives: Practices and Principles for Cultural Protection, Repatriation, Redress, and Heritage Law Making with Canada / 258 Brian Noble, in consultation with Reg Crowshoe and in discussion with the Knut-sum-atak Society 7 Protection and Repatriation of Ktunaxa/Kinbasket Cultural Resources: Perspectives of Community Members / 312 Catherine Bell and Heather McCuaig, in consultation with the Ktunaxa/Kinbasket Tribal Council and the Ktunaxa/Kinbasket Traditional Elders Working Group Part 2: Experiences across the Nation 8 First Nations Cultural Heritage: A Selected Survey of Issues and Initiatives / 367 Catherine Bell, Graham Statt, Michael Solowan, Allyson Jeffs, and Emily Snyder Part 3: Reflections on Selected Themes 9 Canadian Aboriginal Languages and the Protection of Cultural Heritage / 417 Marianne Ignace and Ron Ignace 10 Canada’s Policy of Cultural Colonization: Indian Residential Schools and the Indian Act / 442 Dale Cunningham, Allyson Jeffs, and Michael Solowan 11 Owning as Belonging/Owning as Property: The Crisis of Power and Respect in First Nations Heritage Transactions with Canada / 465 Brian Noble Concluding Thoughts and Unanswered Questions / 489 Val Napoleon Appendix: Standard Question Set / 491 Contributors / 493 Index / 501 00Bell&Napoleon_full_text:00Macfarlane_full_text.qxd 7/18/2008 12:52 PM Page vii Preface: Respect for Elder Knowledge Eric McLay and Lea Joe interviewing Luschiim, Arvid Charlie Dorothy First Rider, in consultation with Frank Weasel Head Throughout this project we have struggled with the issue of how to prop- erly respect and acknowledge the expertise of elders. As we progressed through various stages of our work, it became apparent that elder knowledge is not well understood within academic institutions, nor is elder expertise prop- erly compensated through funding mechanisms available to support acad- emic research. Of critical concern is the implied hierarchy of knowledge associated with elders and other community experts through their treat- ment as “human subjects” and “informants” rather than as equals who bring knowledge that is different from, but equally important as, that offered by academic researchers. Elder expertise may vary among First Nations, and elders are not experts in all areas. For this reason, and to ensure accuracy and to avoid exploita- tion, many First Nations have research protocols that are designed to pro- vide assistance to outside researchers and to ensure that they speak to the right people, or a proper representative sample of the community, depend- ing on the nature of the research question. Not all participants in this research are elders. However, all elders participating share in common a process of life-long learning, a willingness only to speak to matters within their knowledge (or to indicate where they are uncertain), and a respect within their communities for the knowledge that they have acquired not because of their age but because of their experiences and the teachings that have been passed on to them. Part of the dilemma of compensation, as seen through the eyes of aca- demic institutions, is the delicate balance between coercion and exploita- tion. Within the academic world, strict rules govern research involving human participants. Although honoraria are often paid, it is a woefully inadequate recognition of the expertise being shared. However, ethical rules governing academic work assume signiWcant compensation may coerce people into par ticipation and thus call into question the voluntariness of their consent. As we elaborate in the introduction and methodology section of this volume, 00Bell&Napoleon_full_text:00Macfarlane_full_text.qxd 7/18/2008 12:52 PM Page viii viii Preface research programs that provide direct community beneWt and that enable First Nations input into interpretation of data and dissemination of results help alleviate some of these concerns. The issues raised here are best understood in the words of the elders them- selves and those who work closely with them. We ask you to keep the fol- lowing remarks in mind as you read the contributions to this volume. Acknowledging the Importance of Elders and Listening to Their Knowledge Today From an interview conducted by Eric McLay and Leah Joe with Luschiim,