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Alternative Approaches to Ensuring Indigenous Cultural Heritage Protection: Models from First Nations Contexts

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In this research paper, the author shows how the approaches of various First Nations tribes of Canada and British Columbia are instructive in demonstrating that a system of specifically-constructed contractual agreements and the upholding of customary traditions can provide effective alternatives to Western notions of intellectual property (IP) law. If such approaches were followed in other indigenous contexts, it is arguable that the people within these cultures could better ensure the protection of their communal knowledge, artistic achievements, and biological resources from the threat of uninvited, external appropriation. At the same time, the reality of such a situation would also uphold indigenous traditions over and above ones that are typically rooted in Western, colonialist legacies.
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Chris Bacavis
Dr. Janice Gould
WEST 4120
5 May 2016
Alternative Approaches to Ensuring Indigenous Cultural Heritage Protection:
Models from First Nations Contexts
Looking at the precedent set forth in the United NationsDeclaration on the Rights of
Indigenous Peoples, an enormously important component of native groups’ cultural
sustainability concerns the preservation of cultural heritage through specific legal protections. At
a basic level, according to the view of the U.N. General Assembly, one of the responsibilities of
governments is to have “effective mechanisms” in place which allow indigenous groups’ cultural
aspects of both a tangible and intangible nature to be protected from “[being] taken without their
free, prior and informed consent or in violation of their laws, traditions and customs” (6). When
it comes to the broader issue of sustaining indigenous cultural practices and artifacts, a more
specific question that arises is how this goal can be achieved, especially in the face of often
hostile or incompatible legal regimes. This is a problem which has provoked numerous
theoretical and practical answers from indigenous groups as well as their allies. In the volume
Valuing Local Knowledge, anthropologist Thomas Greaves notes that “indigenous people,
through their experimentation, are transforming the scope of intellectual property rights” (27) by
either reshaping it to suit their own needs or developing more serviceable alternatives. Drawing
on wisdom from communities like the Coast Salish, Secwepemc, Ktunaxa, and Hul’qumi’num
people, various researchers have shown how tribes themselves are reshaping intellectual property
rights (IPRs) in precisely the manner that Greaves describes. Ultimately, the examples of these
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and other First Nations tribes in Canada and British Columbia are instructive in demonstrating
that a system of specifically-constructed contractual agreements and the upholding of customary
traditions can provide effective alternatives to Western notions of intellectual property (IP) law.
If such approaches were followed in other indigenous contexts, it is arguable that the people
within these cultures could better ensure the protection of their communal knowledge, artistic
achievements, and biological resources from the threat of uninvited, external appropriation. At
the same time, the reality of such a situation would also uphold indigenous traditions over and
above ones that are typically rooted in Western, colonialist legacies.
Regarding indigenous peoples in particular, an abundance of scholarly treatments have
been provided over the past three decades that endeavor both to examine existing legal
obstructions to indigenous protection and offer a path forward if cultural heritage is to ever be
maintained and guarded in a truly satisfactory way. Within this paper, however, a special
emphasis has been placed on indigenous groups within Canada because of the country’s being
considered to have one of the strongest legal regimes in the world with respect to IPRs (Property
Rights Alliance). While a reasonable expectation might be that such a climate would inevitably
bring about a higher degree of protection for indigenous interests, this has often not been the
case. Because of a persisting environment in which state interests have preeminence over those
of minority groups, the aforementioned U.N. goal of heritage protection agreements that are
developed [by states] in conjunction with indigenous peoples” (United Nations 6) is time and
again replaced with an imposition of largely irrelevant or inapplicable legal structures. In
Canadian territories, where there are a total of 634 recognized First Nations tribes (Assembly of
First Nations) that contain approximately 851,560 individuals (Statistics Canada), such
shortcomings in maintaining sufficient legal protection for unique cultural situations have the
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effect of impacting scores of indigenous groups and all their respective members. In light of this,
the purpose of this research is to showcase the instrumentality of indigenous wisdom traditions
and non-legal, community-oriented mechanisms in addressing particular cultural heritage
concerns that Western legal paradigms have failed to address.
An understanding of the unique needs of indigenous peoples when it comes to intangible
property and cultural heritage is undoubtedly enhanced by first appreciating what sorts of
classifications exist for such elements. In his 1996 article “Tribal Rights,” Thomas Greaves
relates how cultural knowledge encompasses a wide array of categories, even though attention
has been paid more in recent years to medicinal and agricultural features unique to indigenous
cultures which have been appropriated for larger commercial purposes. Additional features
under the umbrella terms of cultural heritage and cultural knowledge include sacred sites and
materials of ceremonial significance, knowledge of a frequently undisclosed nature, oral
traditions, and ancestral remains of a sensitive and spiritual sort (Greaves 28-30). Catherine Bell
and Heather McCuaig, in conjunction with the Ktunaxa/Kinbasket Tribal Council, provide
similar insights into what types of cultural heritage features exist among indigenous peoples that
are considered worthy of community protection. They specifically use the term “cultural
resources” to distinguish those things of significance and worth to each culture apart from a
concept centered on merely notions of “property” (Bell and McCuaig 315). Aside from unique
roles assigned to tribal individuals themselves, cultural resources within an indigenous context
are described as including “traditions, ceremonies, and practices … physical items or cultural use
areas on the land … stories, legends, songs, language and language programming” (315).
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The Coast Salish serve as an example of a people group with even more specific
classifications of their own, ones which are beneficial in further analyzing what types of
protection ought to be afforded to one category of intangible or tangible property over another. In
his presentation for a 2003 World Intellectual Property Organization (WIPO) conference, McGill
University scholar Brian Thom touches upon three specific categories of cultural heritage as they
are understood within a Coast Salish context. Although these specific categorizations are born
out of Thom’s scholarship concerning the Central Coast Salish in particular, they are instructive
in providing a practical guideline by which distinctions between three types of intangible
property can be understood. The Coast Salish, he explains, comprise a great number of tribes
located in the southwestern part of British Columbia, some of whom include the Musqueam,
Chilliwack, Squamish, and Nanaimo (2). Within the Salishan language, the first domain of
intangible propertywhich encompasses family-specific knowledge of a private, specialized
sort is designated snew The holders of snew, aside from families themselves, are typically
individuals who have an elevated role of some sort that is born out of either supernatural
endowment or one’s position as a professional tradesperson (6-7). A second category described
by Thom, that of s’exwtén, is the banner under which ritual resources fall. This specifically
includes images as well as the objects from which such images are drawn (8). Quoting
ethnographer Wayne Suttles, Thom describes how access to such property and the knowledge
associated with it are restricted by primogeniture or other means to certain members of a
lineage” (qtd. in Thom 8). Privilege-related property, which is a third category known as
xwnets’álewem among the Coast Salish, includes intangible properties like songs, family names,
and undisclosed words that are specific to individual households but are often shared and
demonstrated within a public arena like the tribal potlatch (10).
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With the Coast Salish in particular, Thom insists, it is clear that some type of “economic
value(11) is associated with at least the third category of publically-accessible intangible
property. As a result, it is entirely accurate to consider the taking of such resources without tribal
or household permission as a considerable act of theft. Suttles, for instance, has described how
compensation for something of great value can be provided in Coast Salish culture with a family
song; likewise, an intangible xwnets’álewem resource of another sort is able to be passed down to
descendants as part of an inheritance (qtd. in Thom 11). Ultimately, as will be discussed later on
this paper, Thom argues for the integral role of local, customary law in informing approaches to
the protection of cultural heritage. For him, this principle is something which holds true for those
within the Coast Salish communities as well as other indigenous groups. Overall, the interests of
such indigenous peoples in maintaining effective intangible customary property protection can
be shown to have been ill-served by Western IPR schemes.
The research of social anthropologist Brian Noble has provided further insight into
indigenous conceptions of ownership and features of economic exchange that exist between
groups and individuals. Among the Skinnipiikani-Nitsiitapii of Alberta, for instance, one guiding
notion related to tribal features and practices is that of transferability. As Noble explains, it is
entirely acceptable within this culture that, under the proper circumstances, authorized
individuals or larger entities can obtain a measure of “rights” to intellectual artifacts and
traditional knowledge by some act of reciprocation (260). As a matter of clarification,
specifically because of linguistic and conceptual differences, Noble is careful to insist that this
form of “keepership” has only a cursory similarity to Western ideas of “property” (267).
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Nonetheless, the ideas of these tribes do provide enormous insight into more advantageous native
principles for guiding indigenous IP protection.
One Skinnipiikani elder, Reg Crowshoe, provides a powerful analogy relaying how
knowledge practices might be transferred with compensation being received. Crowshoe
compares the offering of such intangible resources to the relationship between a professor and a
tuition-paying student, noting that “if I had the knowledge to teach [another] the ABCs ... then
he'll pay me a tuition or a fee. If he's going to use his knowledge of those ABCs to expand his
education, then he's paid me Siikapistaan [a fee]” (293-94). His explanation suggests that the
sharing of knowledge by a knowledge-holder is entirely possible, inasmuch as the Skinnipiikani
view centers on the inclusion of adequate and appropriate compensation in an exchange of IP.
The precise form that this compensation can take is multifarious (296). In theory, this same
principle would be able to guide matters related to the transfer or loan of various other types of
intangible indigenous resources, such as artistic designs, music, names, designations, and so
Noble goes on to suggest that one fundamental manner in which indigenous intangible
property interests can be protected is to recognize the significant parallels between native
deliberative and negotiation practices and Western legal ones. This must be done, however,
while upholding the sovereignty of indigenous peoples to decide how their own resources ought
to be held and circulated. In order to achieve this, he insists, the transfer guidelines that inform
tribes like the Skinnipiikani ought to be “accorded the same degree of practical authority and
autonomy as is Canadian common law” and there should be “a dialogue between laws” that
exists rather than supremacy of one system over the other (304). In order to truly begin
developing more effective approaches to intangible property protection for First Nations tribes
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and other indigenous peoples, it is crucial to look to these groups' own conceptions about issues
of heritage and the nature of possession. This, in turn, will generate awareness of the ways in
which traditionally Western IP protection has not fully satisfied the complex interests of such
Within the context of First Nations peoples, there are a number of difficulties that have
arisen which prevent comprehensive or adequate protection of cultural heritage and intangible
property. In the 2009 collection Protection of First Nations Cultural Heritage, for example,
University of Victoria scholar Kelly Bannister raises the issue of how aboriginal Canadian
communities’ misunderstanding or ignorance of IP protection can weaken its potency. At the
most basic level, tribal members are often found to be ill-equipped for deciphering which
specific sorts of traditional knowledge and concepts are applicable under an IP law paradigm. In
addition, aside from the difficulty inherent in uniting communal notions with contrasting ones of
individual monopoly, there are also issues related to “time periods of ownership” and the fact
that traditional practices and intangible features often fall short of various “criteria for
inventiveness/originality” (281-82).
Within the same volume as Bannister, it is perhaps law and native studies scholar Val
Napoleon who explains the dilemma surrounding IPRs most succinctly:
So far, various formal intellectual property law regimes have not enabled indigenous
peoples to effectively protect their cultural property from encroachment or appropriation,
and much of the literature is critical of the chronic inadequacy and inappropriateness of
these measures (371).
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Drawing from previous research conducted by Australian author Kamal Puri, Napoleon outlines
several key features that must be present in cultural heritage protection measures for them to be
the most serviceable to indigenous needs. These include, but are not necessarily limited to: The
prevention of inauthentic creations from external sources meant to mimic the originating
culture’s creations; an acknowledgment of collective systems of ownership; an assurance that
tangible items taken without permission are accounted or compensated for; and an emphasis on
using the most contextually relevant measures in order to most effectively fulfill all of the
aforementioned requirements (372).
As even the above list indicates, a consideration that cannot be ignored for indigenous
groups living in the midst of Western government is the role that ownership actually plays in
such cultures. In their monograph Indigenous Peoples and the Collaborative Stewardship of
Nature, Ross et al. describe the difficulty inherent in protecting knowledge ownership within
those aboriginal contexts where non-Western notions of property are prevalent. The authors
include this problem within a longer list of “‘epistemological barriers’ and ‘institutional barriers’
to indigenous involvement in natural resource management” (96). It is arguable that, even in a
postcolonial era, the effects of colonialism's under-girding legal apparatus still exert an enormous
influence in keeping many indigenous peoples from being afforded much defense against outside
usage of “traditional ideas, innovations, and techniques” (102) that are unique to these
The salient issues in enacting intangible property rights measures, of course, have
centered on trying to balance a general indigenous propensity toward collective ownership with
the individual ownership notion tied up in systems of IPRs. Ross et al. point out that Western
governments and legal institutions have too often shown indifference toward pioneering
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alternative approaches for protecting indigenous property in the face of these unconventional
considerations. As one initial solution that is possible, they discuss the incorporation of co-
management as a way of handling tangible and intangible resources, something which is
typically enacted through the use of nonbinding agreements between an indigenous group and
some institution, usually governmental (207). Some examples of this have been seen even among
First Nations tribes; in practice, however, the fact that such agreements are enacted in the midst
of “state-based power relationships and structures” (216) has often severely limited the amount
of possible negotiation on agreements and has allowed an imbalance of input and influence to be
Darrell Addison Posey attempts to describe the problems of Western-rooted IP protection
as perceived by indigenous groups themselves. In reference to objectives developed as part of the
1992 United Nations Conference on Conservation and Development (UNCED), Posey notes the
unreasonableness in expecting that the same nation-states who have deprived indigenous peoples
of rights in the pastthrough ethnic cleansing, dislocation, and environmental destructioncan
somehow be trusted to uphold their rights in the present day. He describes a number of additional
reasons why indigenous interests in cultural heritage protection cannot be served by wholly
relying on Western IPR systems. First, there is the profound disconnect that exists between many
indigenous cultures’ views of collective rights and the more monopoly-oriented privilege
afforded by IPRs granted to individuals. Second, the primary purpose of IPRs and commercial
copyright over resources and ideas has been to facilitate commercial interests. This type of
system, then, is considered to be in opposition to indigenous groups’ general interests in entirely
barring the appropriation and outside spread of cultural heritage resources (39-40). A third vital
concern raised by Posey is how, ultimately, Western IPRs fall short in appreciating values of
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worth that transcend market considerations: those of a “spiritual, aesthetic, or cultural” nature
that are born out of resources’ various “ties with cultural identity and symbolic unity” (40).
Inevitably, like other scholars, Posey is compelled to suggest that the solutions to these problems
can only be found through an “increased recognition of indigenous peoples and their
knowledge,” as well as considering “alternative concepts of property, ownership, and value” (43)
when endeavoring to find ways of protecting traditional knowledge systems and cultural heritage
resources from undue misuse and appropriation.
As a reaction to the inadequacies within much of Western IP law, there have been a
multitude of alternative measures undertaken by individual First Nations communities, their
larger associations, and outside non-indigenous institutions. The research of Kelly Bannister
related to this area is enormously helpful in encouraging approaches outside of Western legal
traditions, ones in which institutional and community governance fulfill some of the duties
required for ensuring cultural heritage resource protection. In the absence of legal mechanisms
with relevance to indigenous interests, Bannister insists, the surest method for such groups to
protect the elements of their cultural heritage has often been to simply “keep them secret” from
others (282).
But when maintaining seclusion and secrecy is not possible, of course, there must be
some alternative systems in place to work outside of those within legal regimes that are found
wanting. One of these is university protocols, which are based on codified ethical standards.
Among various Canadian universities, for instancewhich regularly carry out research
involving human participants, some of whom are indigenousthere are academic standards of a
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voluntary nature that regulate how cultural heritage ought to be treated. Something which is
consistently paramount in such measures is an obligation to always defer to each indigenous
group’s own interests whenever “property or private information belonging to that group is
studied or used” as well as to maintain a “partnership with the aboriginal group” throughout the
entire duration of research projects (283-85). A variety of public statements codified by tribes
themselves have also served as guidelines which enhance clarity regarding specific indigenous
concerns and priorities, especially when it comes to academic study initiatives. Consistent across
all of these declarations which exist is an emphasis on indigenous peoples’ prior informed
consent and some mode of compensation or arrangement for incurring future benefits from
others’ usage of native resources (287).
Bannister goes on to explicate how a number of First Nations tribes themselves have been
the initiators of research protocols dictating parameters for cultural heritage usage in scenarios
where this would be needed. These are especially important to consider because they
demonstrate strong instruments and measures that are negotiated outside of state legal structures,
yet provide tribes with far more authority over research initiatives and their resulting usage of
invaluable cultural heritage resources. The first type of community-based agreement, a
“traditional knowledge protocol,” grants the enacting First Nation responsibilities over
cataloging traditional knowledge and then allowing it to be used by researchers or outside parties
if such a thing is agreed upon. Another type, known as a memorandum of understanding (MOU),
is a formal but still extra-legal way of demonstrating an alliance between two or more parties,
typically research-conducting universities and the tribes with which they are collaborating (291-
93). The enacting of agreements such as these, Bannister insists, is something which “validly
establishes an expectation that community capacity exists to implement [research] content” and
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confers “restricted access” to particular researchers “for specific agreed upon uses” (297). She
discusses the examples of the Kaska and Hul’qumi’num First Nations, who have benefitted from
having their own community membersrather than external legislative bodiespresiding over
the evaluation of traditional knowledge protocols and MOU agreements, as well as working to
catalog intangible cultural resources themselves. Both groups have gained enormous advantage
by employing aboriginal individuals with legal expertise who were capable of evaluating all of
these aspects (297-98), thus ensuring that their traditional knowledge and cultural heritage
interests could be the most adequately protected.
Similarly to the aforementioned views of Brian Thom, which are born out of his research
on the Coast Salish, University of Alberta professor Val Napoleon emphasizes how an
incorporation of customary tribal law into protection measures can more effectively safeguard
their own artifacts of cultural heritage. She focuses specifically on the Gitxsan, who reside
around the Skeena River in British Columbia. The Gitxsan are an important case study for
demonstrating how greater recognition of local, customary structures would assist in protecting
cultural heritage, especially where legal pluralism also exists. Within Gitxsan culture, specific
intangible artifacts and cultural features are understood as being held and managed by individual
community households. These include things like “crests, names … songs and laments, and
dramas” (376). The maintenance of such specialized possession of cultural heritage by particular
tribal members is dependent upon a traditional system of law, called ayook, which exists outside
that of surrounding, centralized states (382).
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The Gitxsan, in fact, have already had to deal with disputes within their culture related to
intangible property being taken without the rightful owner’s consent; for instance, in the
unauthorized taking of family crests by tribes outside of the Gitxsan. Traditionally, the response
to appropriation of this sort would be to sit down at a feast with the offending parties. This
allows an opportunity for Gitxsan house members to understand the other people’s interest in
displaying the crests and to directly grant permission for them to do so (385). Napoleon suggests
that, eventually, an environment of national law in Canada that recognizes the legitimacy of
indigenous tribes in regulating cultural heritage usage through approaches like this would protect
their interests in ways that Western IP law simply cannot.
Another way in which aspects of cultural heritage have seen greater protection is through
carefully crafted, cooperative agreements made directly between tribal bands and various parties.
What remains most important in the effectiveness of such agreements is that mutuality and
equality of input exists between all of the contributing parties. While this has been difficult to
ensure when it comes to partnerships involving the Canadian governmentlargely due to policy-
related and legislative hindrances that maintain particular roles of poweragreements enacted
between tribal bands and museums have demonstrated success. An example of this has been seen
among the Ktunaxa/Kinbasket people, who inhabit several parts of southern British Columbia
and portions of the northern United States. This is an environment where many tribal members
will readily acknowledge that government legislation “is ineffective and does not protect
traditional use and other heritage sites” as thoroughly as desired (Bell and McCuaig 337). Much
initiative, however, has been taken by historical institutions like the Royal British Columbia
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Museum, who have made considerable efforts to document the indigenous artifacts they already
have in their possession, inform the relevant tribes from which they originated, and enact a
process through which these artifacts can be rightfully returned. Similar approaches have already
begun to be implemented in regions outside of Canada (351-52).
Brian Thom focuses on the role of binding contractual agreements between tribes and
researchers in securing more effective legal protection of intellectual and collective aboriginal
property. One example of ts’exwtén integrity and ownership being upheld in a Coast Salish
context has been seen in understandings established between these peoples and local museums.
After negotiating with the McCord Museum and University of British Columbia Museum of
Anthropology, for instance, the rightful owners of ritually significant masks saw to it that they
would never be allowed on display in publically accessible collections. Whereas artistic creations
of other tribes have often been subject to appropriation by massive commercial interests, this
type of agreement has been crucial in preventing the same outcome for the Coast Salish peoples
(13). As Thom explains in a 2006 report to Ottawa’s Department of Canadian Heritage, the
Coast Salish have also made use of offering limited licensing privileges to researchers who
record audio and video for linguistic preservation purposes. Such agreements between tribal
leaders and university staff have been a critical way of providing, even in addition to state-
conferred copyright privilege, a specific and time-limited ability for researchers to include
discussions on indigenous knowledge and cultural heritage resources within academically
important publications (7-10).
Finally, in the research volume Indigenous Intellectual Property Rights: Legal Obstacles
and Innovative Solutions, British Columbian scholars George P. Nicholas and Kelly P. Bannister
provide a brief survey of instructive instances in which First Nations groups have allied with
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larger organizations in order to better assert control over heritage and intangible property
protection. Arrangements centered on jointly-held copyright, for example, have proven
enormously helpful for groups like the Secwepemc, who secured greater protection for traditions
and wisdom of an ethnobotanical nature by dividing copyright privileges between themselves
and the scholars with whom they collaborated. Nicholas and Bannister highlight how future
initiatives on the part of scholars and First Nations groups should focus on particular aims to
better ensure effective stewardship over cultural heritage resource usage and protection. These
include joint participation, strengthening of local capabilities, and “explicit power sharing” when
it comes to enacting and maintaining agreements concerning these groups’ resources (326-29).
For indigenous tribal communities in general, there are a number of injurious effects from
the unauthorized and improper use of their cultural heritage resources. As Deidre Brown and
George Nicholas describe, these include:
. . . . loss of access to ancestral knowledge, loss of control over proper care of heritage,
diminished respect for the sacred, commercialization of cultural distinctiveness, uses of
special or sacred symbols that may be dangerous to the uninitiated, replacement of
original tribally produced work with reproductions, threats to authenticity and loss of
livelihood, among other things (309).
The most pertinent issues in the protection of cultural heritage resources continue to be centered
on how a greater incorporation of actual tribal interests can exist in IP law measures, how
tensions between tribal confidentiality and public awareness might be relieved, and how
compensation or benefit-sharing can be ensured whenever intangible property resources are
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improperly used by external parties. Continuing to draw from indigenous wisdom in the
formation of public policy and innovative solutions to the problem of cultural heritage protection
will continue to be crucial in order to adequately serve the needs of those groups who are most
vulnerable to appropriation without having a privileged status of access to typical state-capitalist
protections. While state-based solutions fall short specifically because of the inequalities inherent
in more massive political power structures, privately-mediated solutions have also proven
inadequate at times because they are absent of equally-represented input from the affected tribes
themselves. Looking to native insight regarding these issues, on the other hand, might better
inform regions, countries, and localities as to how the significant gaps that remain in protecting
indigenous cultural resources can be filled within the areas of law and civil society.
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Bell, Catherine and Heather McCuaig. “Protection and Repatriation of Ktunaxa/Kinbasket
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Full-text available
This article presents a comparative study of how Canadian First Nations and New Zealand Māori peoples have employed digital technologies in the recording, reproduction, promotion and discussion of their cultural heritage. The authors explore a selection of First Nations and Māori initiatives that resist or creatively respond to the digitization and electronic dissemination of cultural ‘objects’, knowledges and landscapes as a continuation of social processes that have dynamically endured over more than two centuries. Their comparison also considers the limitations of conventional law in regard to the protection of indigenous cultural and intellectual property. Expressions of traditional knowledge and culture generally fall outside the protection of copyrights and patents, a situation that is often exacerbated when that heritage assumes digital forms.
Intellectual Property Rights and Indigenous Bacavis 18
  • George P Nicholas
  • Kelly P Bannister
Nicholas, George P., and Kelly P. Bannister. "Intellectual Property Rights and Indigenous Bacavis 18
Indigenous Peoples and the Collaborative Stewardship of Nature
  • Anne Ross
Ross, Anne et al. Indigenous Peoples and the Collaborative Stewardship of Nature. Walnut Creek: Left Coast Press, 2010. Print.
Valuing Local Knowledge
  • Thomas Greaves
Greaves, Thomas. "Tribal Rights." Valuing Local Knowledge. Ed. Stephen B. Brush and Doreen Stabinsky. Washington, D.C.: Island Press, 1996. 25-40. Print.