By Leoboudv-Own Work, CC BY-SA 3.0 https://commons.wikimedia.org/w/index.php?curid=6733224
The issue of reconciliation with Indigenous peoples will remain a front-burner issue in Canada in 2024 so I think it appropriate to post a good news story on this topic early in the year. I should note, however, that while it may qualify as good news now, it is built on decades of bad news. The story is that hereditary chiefs and other representatives from a First Nation on the northern tip of Vancouver Island have declared their intention to reclaim 17 carved masks and other regalia currently held by the Royal BC Museum in Victoria. The Nation is building a new “bighouse” on their land near Port Hardy and will hold a week-long potlatch where the returned items will be honoured in dance and ceremony for the first time in many decades. According to hereditary chief Henry Seaweed, some of the masks were carved by his grandfather, Willie Seaweed (Sewid), known to be a master carver.
The story of these and similar ceremonial objects is a painful one. Many were carved in the late 19th century or early 20th century and were variously acquired by collectors and museums. Some of the most culturally insensitive acquisitions were seizures of cultural properties from Indigenous groups as a result of the outlawing of potlatching. The potlatch, according to the Canadian Encyclopedia, “is a ceremony integral to the governing structure, culture and spiritual traditions of various First Nations living on the Northwest Coast and in parts of the interior western subarctic. It primarily functions to redistribute wealth, confer status and rank upon individuals, kin groups and clans, and to establish claims to names, powers and rights to hunting and fishing territories.” But to the power brokers of the time, the missionaries, educators and government agents, it was a “wasteful, immoral and heathen practice”, to cite the words in the history section of the website maintained by the U’Mista Cultural Centre of Alert Bay, BC. Alert Bay is the site of the most egregious example of culture clash and disproportionate power that resulted in the confiscation of cultural artefacts from the native population. The potlatch was outlawed by the federal government as early as 1884, becoming a misdemeanor punishable by up to six months imprisonment, but enforcement was lax. However, the law was progressively tightened and zealous Indian agents, particularly the one in Alert Bay, William May Halliday, were determined to stamp out the potlatch. In 1921, a native leader Dan Cranmer, organized a potlatch at Village Island, a small island between Vancouver Island and the mainland not far from Alert Bay. This was the opportunity for Halliday to swoop in, supported by Sgt. Angerman of the BC Provincial Police Forty five people were arrested, but sentences were suspended if those charged agreed to give up their potlatch ceremonial paraphernalia. Halliday took custody of the items. Those who refused were sent to prison in Vancouver.
The travesty didn’t end there. According to the account published by U’mista, Halliday later sold 33 pieces to a collector, although whether this was for personal gain or to raise funds for the community is not clear. In any event, he was reprimanded by the Department of Indian Affairs for taking this action. The greater part of the collection was crated and shipped to Ottawa to what at the time was called the “National Museum of Man” and to the Royal Ontario Museum. As for Sgt. Angerman, he ended up with a few of the pieces in his private collection, eventually donating them to the National Museum of the American Indian in Washington, DC.
After the eventual repeal of the potlatch ban in 1951, efforts began to get the items repatriated. By the mid-1970s the museum authorities in Ottawa and Toronto had agreed to return the artefacts provided that a suitable museum was built to house them. Since then other items that had been scattered in the US and UK have been returned to the U’Mista Cultural Centre, a modern and well curated museum established in Alert Bay. The Kwakwa̱ka̱ʼwakw of Alert Bay have thus been able to reclaim their cultural heritage, although it has been a long journey. Now the Gwa’sala-‘Nakwaxda’xw people, originally from Smiths Inlet and Blunden Harbour, but relocated to the Port Hardy area by the Department of Indian Affairs (as it was then called) in the 1960s, are now trying to do the same thing.
Blunden Harbour, on the BC mainland, was a thriving community for many years and the site of a noted carving school. One of the noted west coast artist Emily Carr’s most famous paintings, Blunden Harbour, which was painted in 1930, is based on a 1901 photograph of totem poles in front of longhouses. Sadly, Blunden Harbour was burned to the ground by the Indian Affairs Department to prevent members of the nation from returning to it after they had been relocated as part of the Department’s plan to provide better health and education services. We all know how that turned out.
Quite apart from the contentious issues of relocating native communities and requiring native children to attend residential schools, a long and sad story, the issue of where “appropriated” art should reside is a hot one these days, whether it is Indigenous carvings or the Parthenon marbles. In Canada, there finally seems to be a consensus that cultural objects should be returned to the community from which they came, as long as they can be properly cared for.
When cultural objects are returned to an Indigenous community, they are considered to belong to the entire community, rather than any one individual, even though they may have been carved by a specific artist. In the case of the Gwa’sala-‘Nakwaxda’xw, it would appear that a number of the masks were carved by Willie Seaweed (1873-1967) who resided at Blunden Harbour, known to the Nakwaxda’xw as Ba’a’s. If Seaweed’s works were protected by copyright, would his descendants have a claim against any unauthorized reproductions of his works, such as postcards or prints sold by the Royal BC Museum? In fact, did he or his estate grant permission for his works to be displayed in public, as is required by the Copyright Act? As noted by this legal website, in Canada, “the owner of copyright has the sole right to produce or reproduce a work (or a substantial part of it) in any form, and the sole right to exhibit the work in public.” (This latter provision did not become part of Canadian copyright law until the 1988 revisions, however). Is a carved mask an “original artistic work”? I think it is. Whether Seaweed had rights to his expropriated art, based on copyright law, is an interesting question. Under Canadian copyright law at the time of his death, his works would have been protected until very recently, until January 1, 2018, with the rights exercised by his estate. Of course, that didn’t happen.
I am certain that no-one cared about Seaweed’s rights under copyright law any more than they asked his permission to have his work held in the Museum collection. The current reassertion of the rights of the community over the carvings is based on general principles of fairness and reconciliation rather than copyright law, although the legalities of acquisition may in some cases be questioned, as in the case of the cultural objects seized at Alert Bay in the 1920s.
The question of how copyright laws fit with the issue of Indigenous cultural expression is not a new one. I have written about it here and here. In 2019 two Parliamentary Committees reviewing the Copyright Act with a view to recommending changes noted the impact that copyright can have on native artists and traditional indigenous expression. The INDU Committee noted, in particular, that;
“…in many cases, the Act fails to meet the expectations of Indigenous peoples with respect to the protection, preservation, and dissemination of their cultural expressions. The Committee also recognizes the need to effectively protect traditional arts and cultural expressions in a manner that empowers Indigenous communities, and to ensure that individual Indigenous creators have the same opportunities to fully participate in the Canadian economy as non-Indigenous creators.”
At the same time, in the international sphere, the World Intellectual Property Organization (WIPO) has been working on a Convention on Traditional Knowledge, Cultural Expression and Genetic Resources for many years. In May of this year WIPO will host the Diplomatic Conference in Geneva aimed at concluding an International Legal Instrument focusing on genetic resources and traditional knowledge. If this is successfully concluded, it will be the first step toward a broader convention protecting Indigenous Cultural Expression as well. Whether this will happen is another question, but work is ongoing and appears to be moving toward fruition after many years of inconclusive discussion.
Meanwhile, Canada and other countries with significant Indigenous populations are trying to come to grips with decades of cultural exploitation. While repatriation of cultural artefacts is taking place on a much larger scale today, Willie Seaweed could have done with some copyright protection for his works back in the day. Sadly, access to legal assistance was no doubt a remote possibility if not impossible when he was active as an artist. However, the fact that the Hamatsa masks of the Gwa’sala-‘Nakwaxda’xw will be going home is encouraging, correcting long-overdue justice through the repatriation of these cultural icons.
© Hugh Stephens 2024.
