Canada: FIRST NATIONS CULTURAL HERITAGE AND LAW: CASE STUDIES, VOICES, AND PERSPECTIVES

[Harold Schiffman]

FIRST NATIONS CULTURAL HERITAGE AND LAW: CASE STUDIES, VOICES, AND PERSPECTIVES

by Catherine Bell and Val Napoleon (eds). Vancouver: UBC Press, 2008.
544pp. Cloth. CDN$85.00/US$98.00. ISBN: 9780774814614. Paper.
CDN$34.95/US$39.95. ISBN: 9780774814621.

Reviewed by Anthony J. Connolly, Law School, Australian National
University. Email: tony.connolly [at] anu.edu.au.

pp.303-306

The topic of indigenous rights has gained an increasingly prominent
place in the law and politics of many nation states over the past
decade or so, as well as well as at the international level. With the
adoption by the United Nations in 2007 of the Declaration on the
Rights of Indigenous Peoples, this trend seems set to develop even
further. Amongst the many dimensions of the topic, those concerning
the recognition, protection and repatriation of indigenous cultural
heritage are of particular note. The phenomena comprising indigenous
cultural heritage include tangible things such as sites and landscapes
of spiritual, historic, social and economic significance, culturally
significant objects and artefacts, and human remains, as well as
intangibles such as indigenous languages, knowledge, stories, songs,
and designs.

As Catherine Bell and Val Napoleon’s book makes compellingly clear,
the importance of their cultural heritage to many indigenous peoples
lies in the fact that for them that heritage serves as the fundamental
expression of – indeed, in many cases, the very foundation of – their
collective identity as a people. And this identity serves, in turn, to
ground all the other claims and interests – all the other rights they
assert in the world as indigenous peoples: rights to land, to
political self-determination, to proper participation in wider
polities, and to an appropriate degree of recognition and respect,
more generally. Cultural heritage matters to indigenous peoples. Its
recognition and protection is a necessary condition of their survival
and well-being as indigenous peoples. So too, it matters to those
non-indigenous persons who care about that survival and well-being.

For such persons and, indeed, for anyone interested in issues to do
with indigenous culture and rights, whether they be students,
academics, lawyers, anthropologists, museum professionals, social
workers, or policy makers, this book provides a distinctive and
valuable set of resources for deepening their understanding of those
issues. It is, quite simply, one of the most innovative, interesting,
and (though I am reluctant to use the term in an academic piece)
inspiring books on indigenous rights that I have read. It operates on
a complex and fascinating range of levels and establishes a new and
quite exciting framework, I think, for researching and writing about
indigenous affairs within an academic context. It is at one and the
same time a work of oral history, anthropological case study and
analysis, philosophical reflection, policy retrospective, law reform
manifesto, and – in some of those parts transcribing the ideas and
words of indigenous people [*304] themselves – strikingly poignant
literature.

The book has something valuable to say about a range of issues
associated with the broad topic of indigenous cultural heritage,
including the difficulties of repatriating indigenous artefacts and
human remains from non-indigenous possession; the past, present and
future role of museums in relation to the protection and repatriation
of indigenous heritage; the various modes of appropriation of
intangible indigenous heritage by non-indigenous agents and
institutions; the social and economic costs to indigenous people of
seeking the repatriation and protection of their heritage; and the
conceptual and practical obstacles that stand in the way, generally,
of adequate and appropriate recognition and protection of indigenous
heritage. Notwithstanding its Canadian roots, this is a book that will
be of great value to indigenous people and those otherwise interested
in indigenous rights and culture all over the world.

The book comprises a collection of essays written by an array of
indigenous and non-indigenous authors. It is the result of a six year
collaborative process involving academic and practicing lawyers,
anthropologists, social workers, and, most importantly, a selection of
the indigenous people of Canada (particularly, indigenous elders) and
is the first of a pair of books on the topic. It opens with a preface
and detailed introductory essay which together outline the history and
methodology of the research, writing and publishing process associated
with the book and articulate the ethical and political values which
inform that process. Unusually, perhaps, I found the discussion of the
project’s methodology to be one of the most interesting and valuable
parts of the book. It is a methodology which addresses head-on the
critical challenges posed by collaborative cross-cultural research in
both a theoretically sophisticated and eminently practical way. As a
result, the book displays a fascinating mix of identities, operating
as an analysis of indigenous cultural heritage and its legal and
policy environment; as a reflexive commentary on and inquiry into the
very project of compiling such a book; and as a demonstration and
artefact of how best to go about that project.

At the heart of the book’s methodology lies a commitment to ensuring
the “active and meaningful” involvement of its indigenous participants
in all stages of the research process: a methodological commitment
which is entirely consistent with the substantive ethical and
political values informing the book. From the project design phase,
through the funding application phase, to the active interviewing
phase, on through the collating and analysis of information gained and
into the writing up phase, and beyond this into even the publishing
and copyright negotiation phases, the indigenous people at the heart
of this book have been empowered to deliberate, participate, and
otherwise maintain a significant degree of ‘ownership’ of the project
and its products. Further, throughout the process efforts were made to
ensure that it complied with relevant indigenous laws and protocols.
In this respect, the book provides a self-reflective and well
documented paradigm for others researching indigenous issues. The book
is an exercise in cross-cultural dialogue and collaboration, something
to which [*305] theorists in the social sciences often pay lip service
but too rarely put into practice in their research and writing.

Following the introductory essay, Part 1 of the book comprises a
series of discrete case studies, articulating and analysing the views
and experiences of six Canadian indigenous groups in relation to their
own cultural heritage. These case studies form the substantive core of
the book and serve as the focus of later more reflective and
theory-based essays. It is in the case studies that the main themes of
the book come to life in detailed and vivid accounts of the nature and
significance of indigenous cultural heritage and associated indigenous
law and practice; of the history of the treatment of that heritage by
the Canadian state and non-indigenous society together with indigenous
responses to that treatment; and of the strategies indigenous people
themselves have formulated for future law and public policy reform in
this field, as well as the challenges facing those strategies.

In these case studies, abstract issues of theory, law and policy take
on a personal, human dimension. Further, though, in each of them the
views and stories of the indigenous participants are carefully
supplemented with an informed and sensitive linking discussion
(historical, legal and theoretical) provided by the essay authors. The
book mediates academic description, explanation and analysis with
communal autobiography. It conveys an understanding of the issues not
merely through presenting facts and analysing and explaining them, but
through giving expression to the beliefs and values of the most
important participants in those issues – indigenous people. Though
there are clear commonalities of concern amongst the various groups
encountered in the case studies, one of the most significant aspects
of the book is its articulation of the subtle differences in
conception and concern maintained by the indigenous groups involved.
In this respect, the book acts to subvert the homogenising and
stereotyping tendencies often maintained by non-indigenous readers in
relation to the experiences and practices of indigenous peoples.

Part 2 of the book comprises a solitary essay providing an overview of
a number of initiatives and outcomes relating to cultural heritage
protection and repatriation in Canada over the past twenty years. Its
professed intention is to enable readers to explore and reflect upon
repatriation and protection issues beyond those detailed in the case
studies. Its key value – for this reader at least – is in providing an
analytical and law and policy rich backdrop for better understanding
the earlier case studies.

The concluding Part 3 comprises three essays in which a mix of
indigenous and non-indigenous thinkers reflect upon a small number of
key themes arising out of the case studies. These themes have to do
with the place of language within indigenous culture, the history and
effects of State assimilationist policies on indigenous peoples and
their heritage, and the ubiquitous issue of conceptual difference and
its limits. The last of these essays by Brian Noble on the politics of
conceptual difference, in particular, is outstanding. This is, at its
heart, a book about cultural difference – conceptual, practical, and
institutional – as well as the possibility of overcoming it to some
mutually satisfactory degree. [*306] Noble’s piece, when read in
conjunction with the case studies, conveys a clear and compelling
sense of the nature and importance of the issues in this regard.

To sum up, I think the book is an important contribution to the
increasing body of indigenous rights literature which is likely to
influence the course of future academic inquiry into this topic. The
editors and participants are to be congratulated on their remarkable
efforts and achievement.



http://www.bsos.umd.edu/gvpt/lpbr/reviews/2009/05/first-nations-cultural-heritage-and-law.html
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