Marie Battiste and James (Sákéj) Youngblood Henderson – Protecting Indigenous Knowledge and Heritage

Citation: Battiste, Marie and James [Sa’ke’j] Youngblood Henderson. Protecting Indigenous Knowledge and Heritage: A Global Challenge. Saskatoon, SK: Purich Publishing, 2000.

_________________________________________________________________Argument Indigenous knowledge and responsibility generate a framework for being in the world ethically that resist and transcend Eurocentric worldviews, social makeup, and governance strategies.

PART ONE – The Lodge of Indigenous Knowledge in Modern Thought Conceptualizing Post-colonial Liberation: The decolonization of nations through the 20th century led to the creation of the international Indigenous network in the 1970s, as Indigenous lawyers and leaders aimed for states and NGOs to respond to the continued oppression of Indigenous peoples – the now “unofficially colonized peoples of the world” (2) – worldwide. The network worked towards a definition of liberation “as cultural and physical survival” (2).  Further discussions occurred during a working group that began in 1982 (3). Battiste and Henderson characterize the ensuing annual talks as ceremonies: “The working group became the first international ceremony for Indigenous peoples” – a “new ritual” (3). The discussions led to the Draft Declaration on the Rights of Indigenous Peoples (5).

Ecologies of rights and responsibilities:  “UN documents manifested an Indigenous vision of our humanity for all people to read, and unleashed the power of the vision of an ecological theory of good order and human rights” (5). The Declaration also ascertained that human rights should be universal and not relative to State power and racial hierarchies (6). Most nations wanted the declaration rewritten, reflecting the status of “Indigenous peoples as minorities” (7).

Ecological Teachings:                      Ecological teachings are “mysterious and sacred processes, emanations of our responsibilities to and solidarity with the particular environments in which we participate” (9). Intellectual traditions are connected to individual responsibility and its power to decolonize. Clearly applicable to an analysis of art, “Indigenous scholars have begun to reclaim their perspectives, their own designs, their own strategies, and their own visions. Reclaiming and revitalizing Indigenous heritage and knowledge is a vital part of any process of decolonization, as is reclaiming land, language and nationhood” (13).  Today, Indigenous peoples are experiencing an “Indigenous renaissance” (13), often demonstrating forms of sovereignty that don’t necessary match up with assertions of nationhood that Canada is capable of recognizing: “the Eurocentric approach to studying human cultural systems has fragmented the unity of Indigenous worldviews into the distorted perspectives of arts, science, and culture” (40).

Conversely, “Eurocentric perspectives on culture, cultural analysis of differences, cultural policies, and cultural industries speak to ethical pluralism; however, these perspectives often weaken pluralism rather than empower diversity” (14) – an important note for critiques of liberal multiculturalism.

Eurocentrism  

Eurocentric diffusionism is a concept that naturalizes the spread of European people and European thought, and allows for diminished perceptions of non-European thinking and being, as if European worldviews are the only ones with substance, and as such must fill the voids that make up the rest of the planet (21).  Intelligible Essences Indigenous worldviews proffer “the idea that a realm of things and events exists in nature, independent of the human mind” – a concept repudiated alongside the “doctrine of intelligible essences, which has been rejected by modern Eurocentric thought and replaced with the concept of human purposes” (37).  There are four principles of Indigenous thinking that differentiate it from Eurocentric thinking: 1. The natural world exists independent of any beliefs about it (24); 2. Perceptions may provide an accurate impression of the natural world (24); 3. Linguistic concepts may describe the natural world (25); 4. Certain rules of inference are reliable means for arriving at new truths about the natural world (26). Indigenous thought rejects the idea that concepts about the world can come before perceiving the world; rather, knowing the world is derived from what the world actually is. Language cannot be abstract because it exists in direct relation to the physical world.

Battiste and Henderson assert that the abstractions endemic to European thought make scientific inquiry questionable: “If modern Eurocentric thought, in seeking to understand the natural world and human nature, employs linguistic concepts that do not correspond to an independent natural order and that are justified by questionable standards of inference, is it unreasonable to think that even those ideas that are well supported do not accurately describe the natural world and human nature?” (29).

Identity and Eurocentric Teleology 

European thought has long attempted to intercept Indigenous consciousness as fixed and stagnant. By contrast, “Indigenous consciousness has always required particular responses to particular ecologies built on flux” – ways of being that “came to be seen as too messy, even too downright chaotic, to be studied.” Abstracting culture and trivializing knowledge has been a main strategy for attempting to stabilize European perceptions of Indigeneity (31).  Fixedness is related to timelessness, allowing that “any change in material reality is equated with the demise of Indigenous consciousness” (33).

Timelessness is “a Eurocentric attempt at limiting the future – another way of forcing Indigenous culture to accept the inevitability of imitating Eurocentric modes of thought and dress” (33).  European thinkers are missing out on “an intellectual adventure to connect more deeply with Indigenous ecologies” (39). For example, Indigenous ways of knowing provide that “the self exists within a world that is subject to flux.” “Indigenous knowledge is the way of living within contexts of flux, paradox, and tension, respecting the pull of dualism and reconciling opposing forces. In the realms of flux and paradox, ‘truthing’ is a practice that enables a person to know the spirit in every relationship. Developing these ways of knowing leads to freedom of consciousness and to solidarity with the natural world” (42).

Language and Cognitive Transmission Battiste and Henderson’s term “cognitive transmission” (49), from Protecting Indigenous Knowledge and Heritage is an important concept for identifying the importance of language, and the way that individuals are tied to the whole through responsibility and an underlying knowledge base. It is “intimate and oral” – not abstracted or conveyed from a distance (49): “Mi’kmaw language is more than just a knowledge base, it is essential for the survival of the Mi’kmaq” (50).

The Human

Challenging Eurocentric thought and its affinity for individual perception and abstraction opens up new concepts of the human. Contextualizing perception and being creates a new context within which we “must view Europeans and colonialists as one species among others embedded in the intricate web of natural processes that contain and sustain all forms of life” (30).  People have personal identities, but not divorced from the concept of the whole; the individual stems from the whole: “Each person has a right to a personal identity as a member of a community but also has responsibilities to other life forms and to the ecology of the whole” (55). The Mi’kmaw worldview is enriched by “shared philosophies about the animacy of all things” (55).

PART TWO: Towards an Understanding of the Rights of Indigenous Peoples to Their Knowledge and Heritage Chapter 3 – “Understanding Indigenous Rights.”

Battiste and Henderson maintain that Eurocentric prejudice stands in the way of developing societies that are not ruled by a cultural singularity – namely, that of the colonizer (59). To show this, they trace their argument back to “Greek and Roman times,” as well as concepts by philosophers like Thomas Hobbes that locate Indigenous peoples in a “state of nature” (60), speciously dichotomized to the state of civilization that European colonizers occupy. They detail many court cases that have upheld the value and particularities of Indigenous knowledge and heritage, while also showing some of the roadblocks to real change.

The stakes of acknowledging the importance of acting in accordance with Indigenous knowledge and practices are high, and sharing knowledge is constrained by tradition and responsibility: “Any human activity that goes beyond the bounds of known relationships and interaction among species is, again, tantamount to war and invites chaos” (67).  Understanding Indigenous heritage means understanding Eurocentric concepts of property. “For Indigenous peoples, heritage is a bundle of relationships, rather than a bundle of economic rights or policy considerations. The ‘object’ has no meaning outside the relationship, whether it is a physical object such as a sacred site or a ceremonial tool, or an intangible such as a song or a story. To see it is necessarily to bring the relationship to an end” (71).

Chapter Four – “The Importance of Language for Indigenous Knowledge” They introduce this earlier in the book, but language is crucial. Moreover, those hoping to learn about Indigenous cultures must develop language proficiency. “To insist on analyzing Indigenous thought from a Eurocentric point of view is cultural racism and cognitive imperialism. […] Indigenous languages and worldviews must be strengthened and developed within their own contexts. Any interference is domination, both cognitively and culturally” (74).  Language and knowledge encapsulate the concept of flux that Eurocentric thought has tended to reject. They give the example of Mi’kmaw knowledge, which “does not describe reality; it describes ever-changing insights about patterns or styles of the flux. Concepts about ‘what is’ define human awareness of the changes, but add little to the actual processes. To see things as permanent is to be confused about everything: the alternative to understanding is the need to create temporary harmonies through alliances and relationships with all forms and forces” (77).

The Eurocentric concept of “benign translatability” comes from their suspicion of claims that Indigenous culture can be translated into English without consequence (82). Despite UN and State recognition of the rights of Indigenous peoples – and especially their knowledges and languages – unchecked perceptions of cultural fixedness are associated with the State not recognizing that Indigenous language can and should be used in schools, as well as Indigenous businesses (83).

Chapter Five – “Cognitive Imperialism in Education” Generally, this chapter recommends some strategies for unseating Eurocentric was of knowing that permeate and reproduce through colonial education systems. In particular, educators must attain better tools to “document, protect, teach and apply the traditional transmission of heritage” at centres that operate “in the language of the people” (95).  Chapter Six – “Religious Paradoxes”  Indigenous religion is different from European and Abrahamic religions because it “focuses on what is rather than on what ought to be” (99). (This emphasis on the present relates to their characterization of spirituality from “an ecology in which one lives” (100-1). Additionally, “Indigenous spiritual teachings and practices” tend to “flow from ecological understandings rather than from cosmology” (99). This claim relates to the difference between abstract language and language that derives from the land. Ecological doesn’t just mean nature, animals, etc., but rather a practice of interconnectedness.

The statement, “Out cognitive orientation is towards relationships, processes, and flux rather than toward things” (102) is helpful for an analysis of art, but I wonder how the emphasis on flux and process accords with their renovating the term “intelligible essences.”

Chapter Seven: “Eurocentric Science” 

Battiste and Henderson argue that normal science encompasses mystical and universalist thinking, which has normative assumptions of teleology / cause & effect: “Although the idea of universal truth, of validity, came to be defined as the product of scientific reason, it is an idea that is empowered by the mystical assumptions that surround the Eurocentric belief in the scientific method – the logical process of inferring conclusions from facts, observations, or assumptions” (118).  Conversely, “Indigenous knowledge flows from the same source: relationships within the global flux, kinship with other living creatures and the life energies embodied in their environment, and kinship with the spirit forces of the earth” (125). Scientists and medical developers interested in scouring Indigenous territories and knowledges for actionable plant and animal specimens thus not only encroach on material territory but on epistemological territory; they refer to these people as “bioprospectors” (127).

Chapter Eight – “Ethical Issues in Research”

“Linguistic competence” is crucial for eliminating Eurocentric research bias; “Indigenous languages have spirits that can be known through the people who understand them”; they are not abstract and inanimate – or worse, inaccurate – objects simply used for communication (134).  Ethical research policies are required to avoid disrupting Indigenous knowledge systems and communities. There are protocols for “when it is legitimate for researchers to interview members of Aboriginal communities in their own right as individuals, without regard to the interests of the group as a whole and without seeking permission from any group authority or spokesperson, and when the approval of the community as a whole is required” (139), suggesting that there is an ethical interplay between the role of individuals and the state of communities.

Chapter Nine – “Intellectual and Cultural Property Rights” 

Property – and in particular, Eurocentric concepts of property – are central to this chapter. Battiste and Henderson note that property has a particular history in mediating the responsibility of individuals vis-à-vis the good of the whole, but today property has come to mean different things more congruent with material culture and individualism. As a consequence, this new meaning of property has infiltrated legal thought: “Modern legal thinkers are so used to thinking of property as a market commodity that it becomes difficult to imagine that property might be intended to benefit anyone other than the individual owner; however, the international substantial development movement has redefined the notion of the public good as ecological orders, a notion that is more than familiar to Indigenous thought” (146).

Battiste and Henderson’s concern is that Western notions of property, imposed on Indigenous heritage through things like copyright law, are not only based on the thinking that “culture” is “the act by which European man separated himself from the natural world” (147), but presupposes and perpetuates a liberal individualism that accords with colonial ideals. Here they turn to Bourdieu and Terry Eagleton (147-8).

Supreme Court of Canada decisions have often “held that Indigenous customary law is a distinct system of rights dealing with cultural ownership and is the legal equivalent of the English concept of property” (149) but it is unclear how often Indigenous customary laws are upheld in land claim negotiations, or in affirming the psychosocial fabric that binds Indigenous peoples to Canadians.

The chapter goes on to describe various moments in Canada and beyond (Bolivia; Aotearoa) where court decisions upheld or shot down Indigenous claims to ownership that go beyond individual property rights (151-157).  Cultural authenticity and regulating sale of Indigenous art is important, as “the cultural traditions that lie behind these individual manifestations no protection at all and hence are open to abuse” (161). Moreover, the fact that a design is “old” often signals to people that it is in the public domain somehow – a chronologization that celebrates colonial teleologies rather than Indigenous senses of place.

Part Three – Existing Legal Régimes and Indigenous Knowledge and Heritage Chapter Ten – “The International Intellectual and Cultural Property Régime” UN Human Rights conventions include the right of Indigenous peoples to practice self-determination; harvest resources; and maintain cultural heritage. Canada’s recognition of a woman’s “right of cultural association with her people, despite being married to a non-Indian” (173) led to amendments in the Charter of Rights and Freedoms and the Indian Act to guarantee equal rights to reduce the acts’ encoded gender discrimination.

Minorities’ rights, though a misnomer, have been useful in fighting incursions on Indigenous lands; subsistence harvesting are supported by documents like the International Covenant on Economic, Social and Cultural Rights (1967), which predate UNDRIP (173).  However, human rights conventions have been used to ensure property rights and land tenure but have shied away from protecting heritage (174).  Globalization seems to pose an interesting problem for intellectual property; intellectual property rights are an “evolving collection of rights whose parts are greater than its sum” (174). And while there are various “agreements that attempt to achieve international harmonization” between “national régimes; there are significant substantive differences between nations and there is no internationally uniform definition of intellectual property and accruing legal rights” (175).

One paper from Australia (“Issues Paper Prepared by the Australian Law Reform Commission [1993]”) notes that “applying the usual principles of copyright to Aboriginal heritage fundamentally alters the relationship between the artist and the community and does not provide adequate protection” (177).

Patent laws, on the other hand, are “broad enough to cover most of the teachings, ceremonies, songs, dances, and designs that Indigenous peoples consider sacred and confidential and that are currently threatened by commercial exploitation” (185).  Protection of folklore – “the knowledge of the people” (190) – has long been under debate on an international scale, particularly as many argue that folklore is too old to be considered under property laws, and as such it is in the public domain (190).

Conventions have been put in place to assign rights to folklore that aligns with a group’s cultural identity (191-3), but what about folklore and cultural productions that don’t live up to onlookers’ expectations of Indigenous identity? (In Aotearoa, cultural rights policies have included the condition that Indigenous peoples decide for themselves what counts as cultural heritage [199-200]). ß implications for the perceived fixedness of culture.

Chapter Eleven – “The Canadian Constitutional Regime” 

The chapter addresses the context of constitutional reform in the latter half of the 20th century. Constitutional reform opened up a dialogue for discussions about the structure and substance of including Indigenous peoples in the constitution. Moreover, while Indigenous peoples gained protection and recognition under the Charter of Rights and Freedoms, “the process of translating these constitutional rights into diverse Aboriginal languages, and our attempts to make them fit with the Indigenous worldview remain difficult.” At the same time, State actors attempted to create confusion around the meaning of cultural rights, in the wake of the constitution being ratified (202).

The concept of “self-government” is a problem; it is “an imposed and inanimate idea. It was not similar to an Aboriginal and treaty rights clause; it was an introduction into Eurocentric imaginality surrounding power and government. All we had to do was imagine how we were going to govern our communities and limit the regulation of our lives by the federal and provincial governments” (203).  Nevertheless, the Supreme Court of Canada has “held that the traditional law or custom of Aboriginal rights was not frozen at the moment of the arrival of Europeans in Canada, and subsequent developments, variations, or manifestations of these rights do not extinguish the traditional customs or laws or make them less effective in Canadian law” (214).

Chapter Twelve – “The Canadian Legislative Régime” 

In general, Canadian legislation needs to change to reflect constitutional reforms, as well as to undo some of the Eurocentric biases with which the legal system responds to Indigenous heritage, culture, and knowledge.

I’m really interested in the teleology that individual property rights presupposes. The “maker” of a work is clearly identifiable and the act of creation can be isolated in time and space (243). The linearity of creation has gendered implications and has been tied to a patriarchal order. “The relationship between author and creation is seen as a lineal one of cause and effect and can be demonstrated by a family likeness or by substantial similarity between the work and subsequent reproductions” (243).

Chapter 14 – “Current International Reforms”  

This chapter suggests some international reforms needed to respond to globalization and increased movement of culture / cultural products, which is seen as a particular threat to Indigenous peoples around the globe (251-61). Importantly, discussions of Traditional Ecological Knowledge (ie. the Convention on Biological Diversity, 1992) identify a connection between environmental destruction and cultural heritage (259).

Chapter 15 – “Enhancing Indigenous Knowledge and Heritage in National Law”

They outline 3 approaches for compensating and supporting Indigenous knowledge within Canadian legal systems: 1. Having various agencies extend “enriched rights to Indigenous peoples”; 2. Utilizing current intellectual property law; 3. “Indigenous peoples can assert rights under their sui generis or unique legal systems” (263).

Including “Indigenous Use of Management Ecosystems” as an area of importance is crucial: “(1) Indigenous peoples tend to use, and therefore to value and protect, a much larger variety of species than their non-Indigenous neighbors; (2) Indigenous peoples tend to make modifications to their environments with the aim of increasing the diversity of ecological niches and associated species; and (3) the traditional knowledge of Indigenous peoples is not only particularly rich in local ecological detail and predictive power (265), but continues to be updated and supplemented as long as the people are able to use the ecosystems and study their behavior” (266).

Chapter 16 – “Canadian Policy Considerations” Whereas section 35.1 of the Constitution Act (1982) affirms that Aboriginal rights are sui generis, so does the Canadian government have a “fiduciary obligation” to uphold and protect “those elements integral to Indigenous knowledge and heritage” (272). This chapter lays out evidence for this claim – a claim that has robust possibilities for holding the State responsible to Indigenous peoples, and to the various ecosystems that constitute their knowledge systems.

Points of Importance/Interest:

  • Their discussion of art / heritage, and Eurocentric property laws (Chapter 9)·         Overview of UNESCO meetings ni the north regarding Inuit art; “three Canadian museums and galleries received portions of the collection, with the remainder going back to the Arctic. This event accentuated the inherent right which Indigenous people ascribe to cultural property regardless of who the material owners may be” (151).
  • Objections to The Spirit Sings, the show that travelled to several places in North America, including the 1988 Calgary Olympics (155).
  • Exhibition of Inuit art in the 1960s and 70s – Masterworks – an international forum to provide income to “north peoples whose lives were changing from a subsistence to a wage economy” (157). The division between art and economy has probably never been simple, or even in existence at all.
  • Look for further legislation on protection and display of Indigenous art in Canada, with attention to the types of ownership and purpose that the acts presume. ·         Time and teleology in science and in cultural property rights, especially Chapter 12.
  • The effect of globalization on the sort of thinking that went into this book, particularly as international bodies are responding to concerns about Indigenous knowledge

 

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