Kwakwaka'wakw Laws and Perspectives Regarding Property

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LAW 397 Indigenous Legal Theories

Notes

Indigenous knowledge and other forms of property are being commodified and expropriated by non-Indigenous people

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Kwakwaka'wakw property and property laws are misunderstood or ignored by non-Kwakwaka'wakw people

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Songs and dances are owned and performed by a certain family and by certain members within the family that owns them. The owner may give permission to a non-family member or a family member to perform a song or dance. The owner determines the proper time and place to perform songs and dances either by the owner's family or by giving permission to another to do so. A person may only bear a crest or regalia that belong to that person's family; "family" includes extended family and family through marriage. A person may create or learn to create Kwakwaka'wakw art if they are a Kwakwaka'wakw person or have been adopted into, or perhaps married into, a Kwakwaka'wakw family.

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There are ceremonies that Kwakwaka'wakw people have to acknowledge and resolve disputes. A key principle in these traditions is that our ninogad (knowledgeable people) be called upon to use their knowledge in determining the rightful outcome

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I originally intended to limit my discussion to "intangible property" 6 or "personal property," 7 but, while conducting my research, I was quickly reminded of the interconnectedness of all property within our culture

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my ancestor guide and table of Kwakwaka'wakw families confirm my authority as an insider

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I am also an outsider in that I am not fluent in the Kwa'kwala language, I have been living outside of my community, and I have been educated in the Canadian school system

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I do not suggest a governance system for property that would be recognizable or acceptable to every community of Indigenous people across Canada.

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Our language described the Creator, kinship, territories, our Indigenous law and everything in a way that has no comparison.

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Who has the better vantage point from which to research,the insider or the outsider?

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cases, such as Delgamuukw, 19 that rely upon the telling of sacred traditions to an ungrateful audience that didn't appreciate their depth and importance

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The fact that my ninogad were willing to talk with me assured me that I am not doing wrong.

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Nunamgola is a term used to refer to tribes or nations coming together

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Nawalogwatse is a term commonly used to refer to all of a person's property

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Awinak'ola also connotes property and refers to the land, the sea, the islands and the resources of each of those

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Gigitsu is another term meaning treasures, but which my uncle Richard Dawson told me refers specifically to the songs

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Tlugway refers to a supernatural gift or treasure

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Mayaxa denotes the value of something

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P'esa is what our people did to celebrate different stages of life. They are more commonly known as "potlatches,"

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Tlakwa is a copper and it symbolizes the wealth of its owner

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The chief receiving the cut piece of tlakwa then has to reciprocate, by cutting or throwing away one of his own tlakwa of more value, or by hosting a p'esa; such retaliation continues until one party gives up, thereby restoring peace.

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Digita is a ceremony used when a chief has need of wiping away some shame or embarrassment

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Resolution is met, and guests are given money in payment for witnessing the wiping away. Once the digita is done, the shame or embarrassment that was its cause is never talked about again

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After my grandfather's death, lubilila disappeared but made an appearance at somebody else's p'esa where the host family claimed it as their own. Unfortunately, until my family hosts its own p'esa or records their understanding of the truth of lubilila, the other stories, recordings and claims made in p'esa will be the only truth known.

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some of my interviewees see the floodgates as having been opened by the sale of our nawalogwatse and by having widely-shared Kwakwaka'wakw art

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Could it be that simply having our people's works recognized as art is a good thing? What sort of restrictions, protection or prohibition would we be seeking?

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It is far too easy to pick up a book and mimic the art for there to be any hope of halting it now.

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I would agree with those who believe that only Kwakwaka'wakw people ought to be allowed to produce the artwork. With respect to non-Kwakwaka'wakw, there should be clear definitions set out by Kwakwaka'wakw people regarding requirements for a person to be allowed to produce Kwakwaka'wakw art

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p'esa is the ceremony to which we need to look for laws that dictate how Kwakwaka'wakw property can and cannot be used.

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I grew up understanding that only men could perform this dance. It was not something that I could ever have expected to perform when I grew up. This has changed though, and I have performed the dance.

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there are potential problems involved with the copyright. For example, as descendants of Henry Bell, what if my family decided to use one of the songs that has been recorded and copyrighted by U'Mista?

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brings decision-making outside of the regular circle, out of the gukdzi, and puts it into the hands of a somewhat foreign governing body.

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for me it's clear that First Nations people have the right to reproduce what is theirs, for commercial reasons and for family reasons

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some sort of system be set up to demark authenticity

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determine which party is correct or which party has a stronger claim in a dispute. Traditionally, this was done by hosting p'esa until relevant families supported your claim

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Today, however, decisions need to be made in a timely and cost-effective manner

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