Ida Halpern and First Nations music: art or law?

transcript

Seminar Presentation 28 May 2005

Philosophy Program, La Trobe University

Ida Halpern and the ethics of ethnomusicology

Elizabeth Burns Coleman with Fiona MacArailt*

Published as “A Broken Record: Subjecting ‘Music’ to Cultural rights”

Elizabeth Burns Coleman and Rosemary J. Coombe with Fiona MacArailt

in Conrad Bunk and James O. Young (eds.), The Ethics of Cultural Appropriation,

Blackwell, 2009.

Ida Halpern, a Canadian musicologist, recorded over 400 hereditary Indian songs over

four decades from the 1940s. When she began her collection, it was widely thought

that Indians had no music.1 Her collection of, and her research into, west coast Indian

songs established the sophistication and complexity of the art, and allowed the music

of these groups to be preserved and diffused into mainstream white Canadian culture.

If, as Charles Taylor suggests, cross cultural recognition and respect involves, at least

in part, recognizing the artistic achievements of other civilizations,2 Ida Halpern's

accomplishments were remarkable. No-one, after becoming acquainted with her work,

would think that First Nations people did not have art, or were not civilized. Yet,

twenty years later there are many people who are inclined to view this work, and other

collections like it, with some suspicion. They question the assumptions and

motivations of the collectors, which may appear to be based on a sense of cultural

superiority. They question the conditions under which researchers collected

knowledge and artifacts, wanting to know whether collections were based on full

informed consent, and respected native rights of control. They question the desire for

'preserving' cultures within museums, where the objects and collections are re-

*This paper was inspired by discussions with Fiona MacArailt, whose masters coursework essay was the

source of many of the historical and anthropological references. It should be acknowledged that we have

entirely different perspectives on Ida Halpern’s contribution to history, and the ethics of Halpern’s

recordings of First Nations music. The paper might be considered a response to MacArailt’s essay. The

paper was extensively rewritten with Rosemary J. Coombe for publication .

1 Douglas Cole and Christine Mullins, "The Musical World of Ida Halpern", BC Studies, no 97, (Spring

1993): 3-37, p. 34

2 Charles Taylor, …..

interpreted through western knowledge structures such as anthropology or fine art, and

the culture that the collection has been taken from is represented as something past

rather than present. They question who benefited, and who now has control of the

objects or knowledge or music or whatever it was that was collected.

Such questions can 'hover', asked but unanswered, operating as a slur against a

character, or an activity. In fact, they may be seen as a wholesale attack on the

academic research of other cultures. It is important, therefore, to be specific. But it is

important to remember that they are asked out of a sense that tragedy has occurred.

History has repeated itself: this was a process of colonization through which

indigenous peoples have been disenfranchised. While the first phase of colonization

involved the disenfranchisement of rights to land and the suppression of culture,

somehow the preservation and celebration of culture has lead to the

disenfranchisement of rights to it. While the first phase of colonisation may have been

intentional and accomplished by force, the second phase of colonisation has been

more 'insidious'. While the first phase of colonization occurred through 'wrongful

taking' by current Western standards, it is not quite as clear that this occurred in the

second phase. We need to isolate what occurred, what the bases of these moral

intuitions are, and to assess whether an injustice has been done. We will argue that

this second phase of colonization and disenfranchisement is structural, and points to a

blindness within our legal system that needs to be redressed. We will show that, even

with the best of intentions, and even when researchers respect indigenous people’s

traditional rights, our legal structures systematically fail to recognize the importance

of cultural property and the rights of indigenous people. Unless we address this issue,

the process of colonization will continue to repeat itself.

The argument will proceed in four parts. First, we will provide a brief history

of Halpern’s collection, as presented in the histories of Ida Halpern’s life. The second

part will address the moral issues concerning this collection. The questions we have

just raised about the motivations for collecting, the process of collection, and

beneficiaries, reflect three different ways we generally use for interrogating the

morality of a situation. This involves the intention of an act, the rightness or

wrongness of the act itself, and the consequences of the act. As we will show, the

tragedy of disenfranchisement in the second phase of colonization may occur despite

the best of intentions, and involve acts that are not wrong. The story of Ida Halpern's

collection is a good example of this. The third part of the paper will explore the legal

conditions that made the disenfranchisement of Indian rights possible, and the fourth

will address the question, Have traditional cultural rights to this music been swept

away by the 'tide of history',3 or do indigenous people still have some moral claim on

the collection?

Part I: Ida Halpern’s achievement

Ida Halpern immigrated to Canada in 1939. By the time Halpern arrived in Canada,

British Columbia's coastal Indians had been exposed to Western culture for nearly a

hundred years and the bans on potlatch ceremonies (1880-1951) had been in place for

nearly sixty years. When asked by immigration officials what she intended to work at,

she told them she intended to study Indian music. She remembered being scoffed at.4

Silver Donald Cameron suggested that 'In those days the Indians were simply regarded

as drunken, lazy and primitive...[and] "people couldn't have any appreciation that the

Indian has a culture".'5 It was several years, after settling in and establishing herself as

a music teacher, before she began her collection. Halpern, as well as the chiefs and

artists she worked with, could have been imprisoned for their activities. The 1927

Indian Act, Section 140(1) read:

Every Indian or other person who engages in, assists in celebrating any Indian

festival, dance or other ceremony...is guilty of an offence and is liable on

summary conviction to imprisonment for a term not exceeding six months and

not less than two months.6

3 This phrase was used in Yorta Yorta Community v. Victoria, a case before the High Court of Australia,

where it was found that ‘the tide of history has …washed away any real acknowledgement of [this

communiy’s] traditional laws and any real observance of their traditional customs.’ This idea, that the

normative system under which rights and interests are possessed by Aboriginal people require their

continuous maintenance from the establishment of colonization to secure native title rights under

common law was used to deny indigenous rights to land in this case. Cited in John Borrows, “Living

Traditions: The Resurgence of Indigenous Law”, presentation at the Australian Institute of Aboriginal

and Torres Strait Islander Studies, Canberra, 22 March 2004.

4 Cole and Mullins, p. 19.

5 Silver Donald Cameron, "The Collector: And the Music that Nearly Died Lives On", in Weekend

Magazine 25, no 49 (December 1975): 16-20, p. 16, cited in Kenneth Chen, "Ida Halpern: A Post-

Colonial Portrait of a Canadian Pioneer Ethnomusicologist", Canadian University Music Review,

vol. 16:1, (1995): 41-57, pp. 44-5.

6 Cited in Chen, p. 45.

The purpose of this ban was the cultural improvement and assimilation of First

Nations peoples, though the missionary zeal to 'improve' First Nations peoples led to

restrictions that would now be considered an infringement of their human rights.7

Halpern collected primarily from what is now called the Kwakwaku'waku

(previously known as Kwakiutl), Nuu-Chah-Nulth (previously known as Nootka) and

Haida nations of the northwest coast of Canada, but she also gathered songs from the

Bella Bella, Bella Coola, Tsimshian, Coast Salish and Tglingit nations. The time,

effort and money it took Halpern to collect the songs were significant. Transportation

to and from the reserves in the 1940s was difficult, with unpaved roads, a network of

ferries, dense forests, and unexpected winds and rains making her lone journeys

extremely challenging, and occasionally perilous. Her recording equipment was bulky

and difficult to transport, and her recording conditions were less than ideal.8 Cameron

pictured Halpern working:

Six or eight drummers sit in a semicircle and the singers, Frank Williams and

some women, dance gracefully, taking small steps…[In this] Quiquatla

dance…[t]he drums beat steadily. The dancers float. In the background of this

large field in Port Alberni…[located amid] the rainforest of Vancouver Island,

… dogs bark and children play. And a woman, a white woman, manipulates a

primitive tape recorder connected to its power source by yards of umbilical

extension cord. She knows nothing about recording, but she senses the drums

will be too loud. She strains to raise the microphone nearer to the singers,

away from the insistent drums.9

At first it was hard to distinguish the music from the sound. The music was complex;

the melody and the accompaniment were independent of each other. The vocalization

included what were generally considered to be "nonsense" or "meaningless" syllables.

Her research progressed in slow stages. Her method of analysis initially involved the

separation of the rhythm from the melody, which she analyzed in turn, and then she

turned to the vocalization. Later research focused on the totality of musical forms and

the stylistic elements distinguishing the songs of different groups, the classification of

7 In a report prepared for the UN Commission on Human Rights, Erica Irene Daes suggests that

indigenous peoples' ownership and custody of their heritage is a human right.

8 Chen, p. 46.

9 Cameron, cited in Chen, p. 46.

song-types related to different kinds of ceremonies, and the comparison between the

same songs sung by different generations of singers.10

In order to understand the music she recorded, Halpern had to free herself from

the standard concepts and structures of Western music and notation. To analyze the

beat, Halpern made use of medieval modal notation, which used stressed and

unstressed beats. This showed that the beat fell into prescribed patterns, similar to

iambus, dactyl, trochee and anapest.11 At first she thought it impossible to establish a

relationship between the beat and the melody.12 Again, she found that Western

concepts, such as notational scales, did not work. 'Tonality seems to exist', she wrote,

'but in no direct relation to any specific existing system'.13 She found that melodic

patterns were always built around a predominant note, and eventually she classified

Kwakiutl hamatsa songs into three basic melodic types: descending pitch, undulating

or pendulum pitch, and an "angular" pitch. The beat of the music reinforced the

melodic definition, but an absolute rule demanded that the singer begin before or after

the drummer rather than simultaneously. To begin at the same time would be

considered 'uneducated, uninformed, and ill mannered'.14 Her analysis was later

confirmed by the use the new sonogram, developed at the University of Vienna.

In addition to these achievements, Halpern was among the first researchers to

recognize that the nonsense syllables in native songs had an important role and

religious meaning.15 Halpern had the songs identified and explained by the singers

themselves, rather than relying on the explanations of anthropologists. While

Halpern's methodology of ignoring the anthropological research into west coast music

lead her to make errors in her ethnographic analysis,16 her contribution to

understanding and appreciating First Nations songs was significant. She identified

three meaningful senses in which such syllables occurred in Nootka and Kwakiutl

Cole and Mullins, pp. 29-33.

13 Ida Halpern, Indian Music: Nookta, 3, cited in Cole and Mullins, p. 30.

15 Chen, p. 52.

16 Chen, p. 53; Cole and Mullins, p. 28

music: some had specific expressive meaning, others played with sounds similar to

specific nouns, and a third category were onomatopoeic.17

Halpern’s later research identified twenty-nine style characteristics of Nootka

and Kwakiutl music.18 Her research, she believed, showed the 'complex constructional

principles underlying the compositional process' in this music, and her analysis of

inter-generational interpretations of the song showed that the performers had 'a full

awareness and conscientious respect for compositional principles and techniques [that

was] refined over generations and restated, with creativity and regularity'.19 Her

respect for the sophistication of the music, and the skills and sophistication of the

performers, translated into a respect for the sophistication, and artistic equality, of

Northwest Coast First Nations culture.

In the end, the songs Halpern collected were published as records, and used in

television and radio broadcasts, museum galleries, theatrical productions, films,

academic theses and by contemporary composers wanting to incorporate a 'native'

element. Her work formed the basis of an education study unit, including a booklet,

slides and tape, for grade 4 students. This diffusion of the music to ever wider

audiences gave Halpern great satisfaction.20 The further the diffusion of the music, the

greater the prospect that people would learn to appreciate its specific beauty. Finally,

in 1984, Halpern donated the bulk of her collection (which amounted to over 80 file

boxes of textual records, publications, moving images, photographs and sound

recordings) to the Provincial Archives of British Columbia. The remainder was

donated to the archives of Simon Fraser University in Vancouver. So what is wrong

with this?

Part II: Motivations, Actions and Consequences

Ida Halpern appears to have been motivated by a sincere love of music, and possibly,

also by a sense of empathy with First Nations peoples. Born in Austria in 1910, she

was raised in the rich musical culture of inter-war Vienna. Having started classical

Cole and Mullins, p. 31.

19 Ida Halpern, Ethnomusicology, 270, cited in Cole and Mullins, p. 33.

piano lessons at an early age, she had dreams of becoming a concert pianist. These

dreams were crushed after an illness that left her without the physical stamina to

pursue this, and she turned her musical passions elsewhere, becoming the first female

PhD student in musicology at the University of Vienna. Being the 1930s, many of the

arts, including music, were challenging traditional compositions, mediums, and

definitions of 'art'. Visual art had moved quickly through various schools of thought

and styles: Impressionism, Post-Impressionism, Abstract art, Surrealism and Dadaism

had all affected how people were interpreting and appreciating art. Like many of her

generation, Halpern was an enthusiastic student of this progressive innovation in

contemporary music. Recalling a performance of Miroslav Ponc's "Overture to an

Ancient Tragedy" during a festival of contemporary music some twenty years later,

she wrote that the performance,

stood out in my mind as being quite wild. Half the strings were carefully tuned a

quarter of a tone away from the rest, and a large quarter-tone harmonium was

placed in the middle of the orchestra. A huge percussion section added to this

gave the ear neither resting space nor relaxation…[But] after the ears have

passed through an educational experience…the music…sounds wonderfully

pleasant and agreeable!’21

Through her study of First Nations music, Halpern made this new appreciation

available to Canadian audiences. Moreover, her research freed her from the cultural

assumptions of superiority that one might have expected, and that she had begun with.

Whereas the prevailing assumption, influenced by Darwinian evolutionary theory, was

that music progressed from primitive to fine art, Halpern was eager to present First

Nations music as developmentally like Euro-Western art.22 She presented the music as

advanced rather than backward or primitive, and was open to appreciating what she

heard on its own structural terms.

Halpern's collection was also motivated by a desire to preserve First Nations

cultures, possibly from some sense of empathy. Halpern was a Jew, and had left

Vienna in 1938, immediately after finishing her PhD. The Nazis had annexed Austria.

Jewish synagogues and museums were being destroyed and their contents confiscated.

Ida Halpern, Vancouver Province, 31 January 1953, cited in Cole and Mullins, p. 7.

22 Chen, p. 51; Cole and Mullins, p. 36.

'Degenerate', Jewish culture, was suppressed, including what the Nazi’s termed

‘entarete musik’. In Canada, First Nations culture and music was also suppressed. In

1879, George Blenkinsop, an agent with the Indian Reserve Allotment Commission

suggested that until Tsimshian Indians gave up the potlatch, 'there can be little hope of

elevating them from their present state of degradation'.23 By the 1940s, as a result of

the potlatch ban, the numbers of the older generation of Indians, those who

remembered the songs and the ceremonies, were slowly diminishing. The next

generation was showing little interest in learning the songs and dances. 'I made them

[Indians] understand', Halpern stated, 'that they have to be proud of their culture'.24

Halpern believed, as many of the older generation believed, that Indian culture would

disappear. 25 For Halpern, it would be a 'sin' if the songs and culture were lost, and she

believed the imperative to salvage songs was supremely important.26 It was important

enough to risk imprisonment. It is hard to see any justification for condemning

Halpern’s collection based on her motivations. What, then, of the other moral issues,

the ‘rightness’ of the act itself, and the consequences?

It appears that Halpern respected native rights over music. These, as she was

aware, were extensive, involving heredity wealth related to prestige and rank, and

strict rules governing their ownership, performance and use. This knowledge was not

only respected in the gathering of songs, but is recorded in the notes she took about

the songs she collected and her in publications.27 It was six years before Halpern made

her first collection of songs, in 1947, with Billy Assu, chief of the Lekwiltok

Kwakiutl.

Douglas Cole and Christine Mullins suggest it was Halpern’s ambition to help

keep the Kwakiutl culture alive that persuaded Chief Assu to record the songs: 'What,

Halpern asked the chief, will happen to your songs if you die? "They will die with

Cited in Douglas Cole and Ira Chaikin An Iron Hand Upon the People, The Law Against the Potlatch

on the Northwest Coast, (1990), in Susan Marsden Northwest Coast Adawx Study, (draft August

2004), p. 29.

24 Alan Davies, unidentified clipping, Vancouver city archives, cited in Cole and Mullins, p. 24.

25 Cole and Mullins, pp. 20-1.

27 Halpern, Kwakiutl Indian Music of the Pacific Northwest, 5, cited in Chen, p. 45; Cole and Mullins,

p. 20.

me", was his fatalistic reply'.28 But once he understood her intention, according to

Halpern, he said, 'You come: I give you hundred songs'.29 Her second singer, Chief

Mungo Martin, was also concerned with the preservation of his culture, and had been

influential in persuading people no longer interested in performing the potlatch to pass

on their ceremonial materials to the University of British Columbia museum.30

According to Cole and Mullins, Chief Martin's actions provide evidence that he and

Chief Assu were 'not so much passing on their culture as a living continuity among

their Kwakiutl people but as a memory culture in anthropological literature, in

museums, and on Halpern's recording and tapes.'31

Cole and Mullins' interpretation of the intent of Chief Assu and Chief Martin

is that they were consciously supporting and engaging in a process of making a record

'for posterity'. This interpretation should be given some credibility. The anthropologist

Solomon Marden has explained that it is one of the Tsimshian and Gitksan chiefs'

main responsibilities to ensure that the adawx, that is, the verbal record of history of

the origins, migrations, territories, and law is passed on to the next generation.32 The

adawx includes the songs of the people, which are called limx’oy.33 If the imperative to

pass on the law, history and songs expressed vy Tsimshian and Gitksan chiefs was

also an imperative or obligation for Chief Assu or Chief Martin, and the next

generation were not interested in learning the songs, and it was illegal for them to

perform the songs and ceremonies in order to teach the next generation, it may well

have seemed to them that the only way of fulfilling their obligation to pass on the

knowledge was through recordings.

Even though many people have thought that the ‘Western’ desire for collecting

and preserving culture is misguided, because it fails to respect indigenous peoples

cultures and objectifies them and their culture as something belonging to the past

rather than the present or the future, there is reason to believe that in this case the

Cameron, cited in Cole and Mullins, p. 21.

29 Cameron, cited in Cole and Mullins, p. 21.

32 Examination of Solomon Marden, Xamlaxyeltxw. In the Supreme Court of British Columbia

Delgamuukw v. The Queen No. 0843 Proceedings at Trial, May 6, 1988, Vol. 93 at p. 5896, cited in

Susan Marsden, "Northwest Coast Adawx Study", (August 2004 Draft), pp. 14-5.

33 Marsden, p. 5.

chiefs and elders of the First Nations who consented to record their music were

equally concerned with preservation, and with leaving a record of who they were. The

threat that the songs, and the culture that they were a part of, would be lost appeared

‘a real and present danger’ that justified breaking time-honored traditions concerning

the restrictions over when they should be performed, and who could hear them. Thus,

the act of recording and collecting the songs, and the process through which they were

collected, does not itself appear to be morally problematic.

A second criticism of such collections and the Western knowledge system by

many indigenous peoples internationally is that through Western constructions of

knowledge, non-indigenous people become the experts about their cultures, and the

authenticity of the cultures. Halpern's analysis of First Nation's music may well come

to play this role of the standard of authenticity of songs as they are sung today. So we

must acknowledge that, in addition to providing evidence that First Nations music

was, and is, a sophisticated art form, it may be used to discredit contemporary

performers, but only if we do not acknowledge change as valid. However, Halpern's

research also explicitly focused on change over generations, change that she

interpreted as authentic, so even if other people were to come to use the material this

way, it is not one of Halpern's personal faults. Moreover, Halpern did not merely

record the songs and analyze the music, in her liner notes she endeavored 'to

foreground her “native experts” as the primary and proper authorities of their own

cultures. This is the basis of the criticism that Western knowledge systems appropriate

the authority of a culture from its practitioners, and she cannot be accused of it. She

kept ‘for authenticity's sake the words [and logic] of the informants in the

explanations…as close as possible to their way of expressing themselves [in

English]'.34 Her liners used the explanations as the singer-elders presented them. As

one of the historians of her life, Kenneth Chen, has pointed out, this form of

ethnographic representation 'would not even be considered by anthropologists until

the appearance of Clifford's "On Ethnographic Authority" in 1983.'35

Halpern’s desire to her to record and to study the music borne out of her love

of music and her respect for First Nations cultures, while not identical with the

Halpern, "Nookta Music: Reply to Goodman," p. 297; and Halpern, Indian Music of the Pacific

Northwest Coast, 2, both cited in Chen, p. 54.

35 Chen, p. 55. James Clifford, "On Ethnographic Authority," Representations 2 (1983), pp. 132-43.

interests and the objectives of the artists she worked with, must have seemed to be at

least sympathetic with the interests of the chiefs who collaborated with her. And we

might assume that the collaboration would be of benefit to each. This brings us to the

third way of interrogating the morality of an act or a situation: through consideration

of its consequences, and the question who benefited, and who now has control or

ownership of the objects or knowledge or music or whatever it was that was collected.

Halpern benefited. She was recognized for this work, as well as her other

contributions to Canadian music. After she began to publish her analysis of the songs

in 1953, she held positions as the international representative, writer and critic for

Musical Courier, the regional director for the Metropotitan Opera National Council,

vice chairman of the Community Music School in Vancouver, and she was made a life

member of the Vancouver Academy of Music, and a counselor for the Society for

Ethnomusicology. In 1956, she was made a founding convocation member of the

Simon Fraser University, and made an honorary associate of the Simon Fraser

University Centre for Communications and the Arts. 36 In 1978, Simon Fraser

University awarded her an honorary doctorate, and she was named a Member of the

Order of Canada. In 1986, she received a second honorary doctorate from the

University of Victoria.37 And finally, some forty years after receiving her doctorate,

was elected as a member of the Osterriechische Musikwissenschaft, the Austrian

Musicological Society of Vienna University.

Who else benefited? The Provincial Archives of British Columbia benefited,

as did Simon Fraser University. Did any of the First Nations collaborators benefit?

The musicians seemed to have gained some recognition as artists. And one might be

tempted to answer that other First Nations people benefited, indirectly, in the sense

that their music is recognized as equal to that of Western culture, but we cannot say

much more. Halpern's name is strangely missing from the biography of Chief Martin,

and the writing of another of the artists she worked with, George Clutesi. In the

autobiography of Chief Harry Assu, the son of Chief Billy Assu, there is a passing

reference to her work, although Halpern claimed she had received a letter of

appreciation from Don Assu, Chief Billy Assu's grandson, for 'having preserved the

Ida Halpern, “Dr Ida Halpern Collection”, British Columbia Archives and Records. Catalogue No. Add.

MSS. 2768 Textural Records. Inventory, 1990, pp. 4-7.

37 Chen, p. 44.

songs of his grandfather, which now means so much to them'.38 The current

importance of the songs in contemporary First Nations culture is simply not discussed

in the histories of Halpern's life.

Who owns the music? And who has control over it? Who decides whether the

music may be used in a documentary, or in a film, or in a television commercial?

Again, the answers to these questions are not provided in the histories of Halpern’s

life, yet we can also address these questions from a purely legal perspective.

Indigenous music and songs were not ‘fixed’ in a tangible medium. Moreover, they

would have been categorized as ‘folk music’ because they were handed down from

generation to generation, and without an identifiable ‘author’ or creator. Legal

ownership of the music (copyright) would have been created at the time Halpern

recorded the songs, and would have been held by her. She may have passed copyright

onto the archives or the university. Certainly, they would now be able to charge a fee

for its use, should anyone want a copy, simply by virtue of being holders of the

archives. Moral rights, which enable artists to control how something may be used by

a copyright owner, would not apply for two reasons. One reason for this is that, like

copyright, moral rights are possessed by an identifiable individual creator. A second

reason is that moral rights are a recent legal mechanism, and even if they did

recognize group ownership of folk music, they could not be applied retrospectively.

Legally then, it appears that the First Nations peoples that recorded their music with

Halpern have no rights to it. They no longer own it, and they appear to have no legal

right to control how it is used.

This then, is the continuing process of colonization of indigenous peoples. But

why should it be considered ‘insidious’? Halpern’s motives are not suspect. The

collection was made, with full consent, for the preservation of the music, and the

current ownership and control of the music is legal. Are we simply expressing regret

for something that cannot be changed? It appears we have reached the heart of the

tragedy.

Part III: Ownership of Art and Songs as Law

Chen, p. 57.

What enabled Indian rights to songs to be ‘captured’ this way? Primarily, it appears to

have been through the interpretation of the songs as art. Art is protected by copyright.

Copyright is a form of property that is created by law, and is justified in terms of

labor. According to this framework, Ida Halpern earned the copyright in the songs.

She expended considerable time and energy and money recording the music. If we

believe that labor justifies the creation of property, then it is not clear that there is

anything morally wrong with what has happened. We might even think that this is a

‘just’ outcome.

This claim to property hinges on whether the songs Halpern recorded should

be categorized as art, and the agreement between Halpern and the chiefs. It was the

categorization of Indian music as folk music, and the histories of the adawx as folk

lore, that justified the application of copyright. But is this an appropriate description?

Why, for example, would we interpret this music as art? Such an

interpretation would be like interpreting illuminated manuscripts, such as the Book of

Kells, as paintings rather than the Bible. It is not impossible that something should be

both art and a religious document, but clearly, how we categorize something, and the

priority we give to that categorization, will have consequences on how we think it

ought to be treated, and indeed, whether it can be owned under copyright. The

categorization of First Nations songs as music justifies their being listened to, or

understood in a certain way. This is clearly illustrated in Delgamuuku v. British

Columbia. In this case, a group from the Tsimshian nation, the Gitksan, were pursuing

a land claim. In defending their rights to the land, the Gitksan took over a year to tell

their stories and songs before the judge. J. Edward Chamberlin recaptured the scene:

When they went to court to assert their claims to their aboriginal territory, they

told the history of their people with all the ritual it required…On one occasion

another elder, Antgulilibix (Mary Johnson), was telling her ada’ox to the court.

At a certain point, she said she must now sing a song. Judge McEarchen was

appalled; the request seemed to flaunt the decorum of his courtroom…He tried

to make the plaintiffs understand that this was unlikely to get him any nearer to

the truth he was seeking. He asked the lawyer for the Gitskan whether it might

not be sufficient to have the words written down, and avoid the performance.

Finally he agreed to let Mary Johnson sing her song; but as she was about to

start he fired his final salvo. “It’s not going to do any good to sing to me”, he

said. “I have a tin ear”.39

But what was McEarchen supposed to hear? Music? The words of song? A myth?

Folk lore? In the end, McEarchen dismissed the case. He claimed that he believed

Mary Johnson but not her ada’ox.40 What kind of evidence is a song?

On the information supplied in Chamberlin’s version of events, it appears that

McEarchen was concerned about the relationship between truth and folk lore and oral

history. Folk lore and oral history are deemed suspicious forms of evidence, because

of the vagaries of memory, and because we consider ‘myth’ to be a kind of falsehood.

Yet this appears to miss the point. The song was presented as evidence of legal title,

not, or at least, not merely, history. It was certainly not presented as a musical

interlude to proceedings. To seek historical ‘truth’ in the songs is to treat the songs as

myth. This confuses different ways in which something may be true. History, at least

on one popular theory, is true by virtue of facts that correspond with something that

happened or existed in the world. But law is not true in the same way. If a law can be

‘true’ it is not by virtue of correspondence, it is true because it is an institutional fact.

Institutional facts depend upon human institutions for their existence, for example, for

a piece of paper to be a five-dollar bill requires an institution of money. A test for

whether something is an institutional fact is whether we can codify the constitutive

rules that govern it.41

Chamberlin has suggested, ‘The native song, with 'its stylized language and its

ceremonial protocol, was its own guarantor of truth. Whatever was done within that

tradition, provided it was done property, was true. Truth had to do with the ceremony,

not evidence’.42 This explanation is not entirely clear. Perhaps it makes better sense to

use the term ‘valid’. H.L.A. Hart identifies what he calls rules for recognition of

within our own legal system for the identification of valid law. Validity does not

depend upon truth. For example, Australia’s sovereignty over its territories, much like

that of Canada, has until recently depended on the legal fiction of ‘terra nullius’. Law

J. Edward Chamberlin, If This is Your Land, Where are Your Stories? Finding Common Ground,

Toronto: Alfred A. Knopf Canada, 2003, p. 20.

40 Chamberlin, p. 21.

41 John R. Searle, The Construction of Social Reality, London: Penguin, 1995, pp. 2, 27.

42 Cited in Chamberlin, p. 147.

is not always concerned with ‘truth’: none of us could get by without our legal

fictions. We suggest that First Nations songs do not merely record history or myth, but

provide a rule for recognition for First Nation law.

Within oral indigenous systems, the reference for law, for territory, and rights,

are encoded not in a constitution or in statute, but in mnemonic devices; such as

songs. The power and accuracy of these devices as records of memory may be

underrated – how many of us, lost in a telephone directory, hum our ABC song? The

chiefs of First Nations peoples were trained to remember the adawx through constant

repetition, and through song. Mnemonic devices do not record information in the way

that written language does, but provides a code or symbol that serves to remind the

user of important historical and legal information. For example, the anthropologist

Jack Goody discusses the role of mnemonic devices in African oral societies. The

carvings on throne of the Asante king would be referred to by a spokesman to present

a case about aspects of the ownership of land or the extent of jurisdiction. In Luba

society, the lukasa, a hand-held wooden object stuck with pins and beads was used to

induct rulers into office, to teach the sacred lore about culture, heroes, clan migration

and the sacred rules, as well as the spatial positioning of activities and offices within

the kingdom. 43 All the evidence presented about the use of First Nations songs in

ceremony suggested they had a similar function. Moreover, in Luba and Asante

societies, like First Nations societies, specific people are trained to remember and to

interpret the law. Hence, the correct recital or presentation of a song may well be

proof of the validity of a claim about law.

Supporting this interpretation of First Nations songs as a form of law, rather

than music, is the fact that First Nations people insist, strongly, that only certain

people have the right to tell and to interpret their songs and stories, and that they must

be told in a certain way. It is also supported by the situations in which people refuse to

tell stories. There is a of a Gitksan elder refusing to sing and to perform songs known

only to him. He claimed that there was no-one left to understand the significance, the

importance of what was performed. He said that 'although he could put on the

appropriate regalia and go to the designated spot at just the right time, it wouldn't

Jack Goody, “Memory in Oral Tradition”, in Patricia Fara and Karalyn Petterson (eds.), Memory,

Cambridge: Cambridge University Press, 1998, pp. 73-94.

work. It would be just words.'44 This suggests that his songs were performative rituals.

He felt that the institutional context for understanding the importance of the songs was

missing; they simply could not be understood ‘as music’ or ‘as myth’.

The point of this discussion is not to criticize Halpern. As pointed out earlier,

there is nothing incompatible with something being both art, and something else, any

more than it is incompatible for illuminated bibles to be art and bibles, and it must

have appeared to both Halpern and the chiefs that their different interests in the

recordings were not incompatible. Categorized as music, Halpern’s achievements are

remarkable, and her efforts to make it available to as wide an audience as possible,

and to show that First Nations peoples had culture was admirable. But the

consequences of our categorizations and the priority we give them are significant.

Categorized as folk music, it was possible for Halpern to obtain copyright in her

recordings (and it was unlikely that any other categorization was likely to be

recognized at the time that she made them). Categorized as music, according to a

Western system, it would be appropriate for the recordings to be used as background

for films, and perhaps even as advertising jingles (though some of us do have

reservations about great art, and religious music being appropriated for secular and

commercialized use in this way). Categorized as music, the songs have no weight as

evidence in court. Yet none of these outcomes based on an understanding of First

Nations songs appear to be consistent with Indian concepts of property and its

relationship with the songs.

According to Susan Marsden, while the Western concept of ‘property’ implies

separation, something that is external to someone and something that can be taken or

sold, there is no equivalent term in some Indian languages. She suggests that in

Gitksan and Tsimshian languages, the idea of possession does not involve the

construction ‘I own this’ so much as ‘I am this’, and ‘this is me’.45 This is, as

Marsden suggests, a fundamentally different concept of property. For nearly a century,

linguists have been describing this as the difference between alienable and inalienable

possession. In 1914, Lévy-Bruhl noted that in Melanesian languages there were typically

two classes of nouns, distinguished by a prefix that indicated different kinds of

44 Chaimberlin, p. 147.

45 Marsden, p. 3.

possession.46 One class of suffix-taking nouns designated parts of the body, kin, spatial

relationships, and objects closely related to a person, and all other nouns were

represented by a free possessive morpheme. He described this difference as a difference

between alienable and inalienable possession. Inalienable possession ‘denotes an

indissoluble connection between two entities - a permanent and inherent association

between the possessor and the possessed’.47 As Lévy-Bruhl neatly encapsulated the

concept, ‘When I talk about my head, I do not intend to say that it belongs to me, but

that it is me’.48 Since then, linguists have noted the frequency that this distinction between

alienable and inalienable possession is made across different language groups.

This difference in the concept of property, as something that is a creation of law

and alienable, and something that is intrinsic to the identity of the person or group is

better captured in the concept of cultural property than in intellectual property. Two

ideas inform our current international frameworks for protecting cultural property.

The first of these ideas is that cultural property is the heritage of all mankind. This

was set out in the 1954 Hague Convention and was reaffirmed in another protocol in

1999. The convention sought to establish that military forces had an obligation to

preserve cultural heritage during a time of war. The second of these ideas is that

cultural property belongs to nations, an idea set out in the 1970 UNESCO Convention

on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of

Cultural Property. According to UNESCO, the loss of cultural property represents a

loss of ‘being’ of the group. A further development of this idea can be found in a

report prepared for the UN Commission on Human Rights, in which Erica Irene Daes

suggests that indigenous peoples' ownership and custody of their heritage is a human

right. However, cultural property is defined as tangible property, things like stamps,

monuments, or antiquities.

The songs of First Nations peoples, as one of the elements of their adawx, are

clearly concerned with the concept of identity. For example, John Brown, Kwiiyeehl

of the Gisgahaast clan of the Kispiox tribe has pointed out:

Lévy-Bruhl, cited in Chappell H. and McGregor, W. (1996) ‘Prolegomena to a theory of

inalienablility’, in H. Chappell and W. McGregor (eds.) The Grammar of Inalienablility: A

Typological Perspective on Body Part Terms and the Part-Whole relation (Berlin: Mouton de

Gruyter) p. 3.

47 Chappell and McGregor, p. 4.

48 Lévy-Bruhl, cited in Chappell and McGregor, ‘Prolegomena to a theory of inalienablility’, p. 4.

A group that could not tell their adawx would be ridiculed with the remark,

“What is your adawx?” And if you could not give it you were laughed at.

“What is your grandmother’s name? And where is your crest? How do you

know of your past, where you have lived? You have no grandfather. You

cannot speak to me because I have one. You have no ancestral home. You are

like a wild animal, you have no abode.49

And the inadequacies of Western legal systems in dealing with indigenous heritage

claims in relation to this kind of property are often remarked upon. For example,

Amanda Pask writes:

At every level the claims of Aboriginal peoples to cultural rights fall outside

the parameters of Western legal recognition. Their claims can be heard neither

in the international regimes governing cultural property, nor in the domestic

regimes governing intellectual property…In all these arenas aboriginal peoples

must articulate their interests within frameworks which obliterate the position

from which they speak.50

Intellectual property law, as we have just explained, fails to recognize group property

in traditional songs, and the labor justification enables the heritage of these groups to

be appropriated by anyone with a recorder. Cultural property law, which recognizes

the importance of heritage to group identity, does not recognize property in

intellectual creations. Yet Pask suggests that property and ownership are not the

important themes in the writing of indigenous Canadians. She thinks that the issue at

stake is the maintenance of the ‘ties of significance which bind a community, both in

the present and across past and future generations, to form an entity that can call itself

a sovereign people’.51

This concern is certainly reflected in John Brown’s comments,

which show that the adawx define group identity, and show where people belong

within a community.

Indigenous peoples are now arguing that cultural property should include

intellectual creations which have not previously been considered ‘property’, such as

John Brown, “The Tradition of Kwiyaihl, of Kispayaks” (1920), in Maurius Barbeau & William

Beynon, Temlarh’am: The Land of Plenty on the North Pacific Coast,( Otawwa: Folklore Division,

Canadian Museum of Civilisation, 19115-1959), p. 95, cited in Susan Marsden, p. 4.

50 Amanda Pask, “ Cultural Appropriation and the Law: An Analysis of the Legal Regimes Concerning

Culture”, Intellectual Property Journal, vol. 8, December 1993, p. 64.

51 Pask, p. 62.

folk lore and traditional knowledge. The United Nations Commission of Human

Rights supports these broader claims, asserting that ‘each indigenous community must

retain permanent control over all elements of its own heritage’.52 ‘Heritage’ is defined

as ‘all expressions of the relationship between the people, their land and the other

living beings and spirits which share the land, and is the basis for maintaining social,

economic and diplomatic relations — through sharing — with other peoples’.53 These

claims are now being discussed and recognized in forums such as the World

Intellectual Property Organization and its 1996 Tunis Model Law, which provides

protection for cultural expressions, without the requirement that they be ‘fixed’, for an

indefinite period of time.54 But the Tunis Model Law has not been adopted in Canada

or the United States of America, and, even if it were, again, it could not be applied

retrospectively.

Yet Canada, like the United States of America and some other Western

countries, including Australia, have adopted rights of repatriation. Unlike cultural

property laws, repatriation rights do not depend on the bearers of rights being nation

states, or legal entities, nor do they depend on wrongful taking, or legal title. Rather,

they focus on the relationship between certain kinds of objects and their cultural

importance within a living tradition. Repatriation laws, such as the USA's Native

American Graves Protection and Repatriation Act (NAGPRA) still focus on tangible

objects. Objects subject to repatriation include sacred objects, objects of patrimony,

un-associated funerary objects, and funerary objects, and the Act allows descendents

to make claims. Sacred objects are defined as those necessary for the continuance of

religious life of a community, and patrimony, is defined as an 'object having ongoing

historical, traditional or cultural importance central to the group or culture itself.' 55

While this focus remains on objects held by museums, there is some discussion about

Erica-Irene Daes, Study on the protection of the cultural and intellectual property of indigenous

peoples, New York: United Nations Economic and Social Council, Commission on Human Rights

1993, E/CN.4/Sub.2/1993/28. Cited in Michael F. Brown, “Can Culture Be Copyrighted”, Current

Anthropology, vol. 39, no. 2, April 1998, p. 197.

53 Erica-Irene Daes, cited in T. Janke, 1997, Our Culture, Our Future: Proposals for the recognition

and protection of Indigenous cultural and intellectual property, Australian Institute of Aboriginal

and Torres Strait Islander Studies, Canberra, p. 24.

54 Janke., p. 8.

55 Borrowed power, p. 241.

whether they can also refer to intellectual property, such as folk lore, recordings, and

research files, such as those with the Halpern collection.

This might suggest that there are grounds for First Nations people to control

the music that Halpern recorded. However, it is generally believed that it is now too

difficult to reclaim intellectual property from the public domain, and the issues raised

by free speech, and copyright rights have not been addressed.56 Yet there are also

conceptual problems with 'inalienable possession' this as a moral justification. One

problem is that ‘inalienable possession’ is a concept that includes many different

kinds of possession, and some of them are alienable. The term is inadequate and

misleading. The concept ‘inalienable possession’ is better associated with identity,

rather than alienation. We can agree that when we say ‘this is my head’ we are not

saying that we have a proprietary right in our heads, or that they are ‘alienable’, but

the way in which we possess our heads is also not transferable. We cannot pass leave

them to the next generation (and were someone to do something so gruesome, they

would not possess it in the same way they possess their own heads). To be transferable

across generations, something must be alienable. Accordingly, some forms of heritage

may be intrinsic to a person’s or group’s identity, but alienable. So, for example, we

might think that secret sacred objects that are currently being repatriated to indigenous

groups should be repatriated on the basis that they are intrinsic to the group identity

and heritage. Yet, as has occurred in Australian repatriation programs, some

Aboriginal people have said to the museums offering the return of such objects that

they no longer want them – because they are Christian now.57 In these cases, the

objects are no longer a defining feature of the group, and are no longer the basis for

maintaining social, economic and diplomatic relations. The elders who are responsible

for the objects may be happy for the museums to keep them because the objects are no

longer invested with social meaning. So simply making the case that something is

heritage will not justify indigenous control. Furthermore, the First Nations adawx and

songs are not merely historical stories, passed from one generation to the next, they

involve rights. If someone with authority has given an object (intellectual or physical)

away, or if they have repudiated it, then future generations cannot have a proprietary

56 Borrowed power, p. 249.

57 ?? Repatriation conference….

on it, or a claim to control it. Future generations may regret its loss, but we do not

respect the sovereignty of indigenous peoples over the control of their heritage if we

do not recognize they have the power to alienate cultural heritage where they believe

it is appropriate or necessary.

This limitation to the justification of cultural property, however, does not

suggest that current generations of First Nations peoples that recorded songs with Ida

Halpern have no moral claim on the recordings. (Whether they have a legal one is a

separate question.) If we categorize the songs Halpern recorded as law rather than

music, we present an entirely different picture of the importance of songs as legal

evidence, and we open up an entirely new dimension on the chief’s intentions when

they agreed to record the songs.

Part IV: The Art of Promising

Let us take stock. In part II of this paper we suggested that there was some credibility

to the claim that the First Nations chiefs who recorded their songs with Halpern did so

when it seemed that they would soon be forgotten. This recording was illegal, but it

was important that there should be a record. We suggested that, if we can generalize

from evidence about Tsimshian and Gitksan societies, it was the chiefs' main

responsibility to ensure that the adawx, including the songs or limx’oy, were passed on

to the next generation, and according to the histories we have at our disposal, the First

Nations chiefs Halpern collaborated with were concerned that the songs should be

preserved. Cole and Mullins suggested that this preservation was thought of as a

historical record, rather than as a living tradition. In part III, we suggested that taking

indigenous sovereignty over culture seriously, involves taking seriously the authority

of a person, or chief, to alienate rights. First Nations adawx and songs are not merely

historical stories, passed from one generation to the next, they involve rights. If

someone with authority has given an object (intellectual or physical) away, or if they

have repudiated it, then future generations cannot have a proprietary on it, or a claim

to control it. But we also suggested that this alienation did not necessarily mean that

current generations have no rights in relation to what had been alienated. This needs

explaining.

This last claim rests on two premises. The first is that it seems unlikely that the

chiefs were recording music; it seems far more likely that they were recording history,

law and culture. This suggests, then, that what they had in mind for their songs was

not its appreciation as music, but as a record of territorial ownership and identity. The

second point, which needs some argument, is that the audience the chiefs intended to

reach has rights, even if these rights do not involve rights of ownership. The rights

depend on the agreement that was reached between Halpern and the chiefs.

The argument for this second point is borrowed from a little known or

discussed analysis of the nature of publishing by Emmanuel Kant.58 The argument

Kant presents is primarily an argument against counterfeiting. But in this situation, we

are primarily concerned with his analysis of the relationships between the author,

editor and audience. What is interesting in this context is that the argument does not

rest on any kind of proprietary right. Kant is not making an argument in favor of

intellectual property rights. He is not concerned with the nature of a work, or who has

property in it. Instead, he analyses the morality of publishing in terms of a speech act.59

In Kant’s words:

In a book as a writing the author speaks to his reader; and he, who printed it,

speaks by his copies not for himself, but entirely in the name of the author. The

editor exhibits him as speaking publicly, and mediates but the delivery of this

speech to the public.60

For Kant, the editor, or publisher, is the mediator of the relationship between the

author and his audience, and is a ‘mute instrument’ for delivering this speech to the

public. This communication is, and must be, undertaken in the name of the author.

The author commits to the editor or publisher the delivery of a manuscript not for the

publisher’s benefit, or his own benefit, but that of an audience. The publisher makes

use of the powers of speech of the author.

This relationship, however, depends on a series of agreements, or promises.

The author gives over his manuscript to the publisher, in return for the publisher

Emanuel Kant, “Of the Injustice of Counterfeiting Books”, in Essays and Treatises on Moral, Political ,

and Various Philosophical Subjects. vol. 1, London, 1798, pp. 225-39.

59 Kant thinks that this argument provides a legal remedy for counterfeiting based on Roman law, and that

specific copyright legislation, creating property in works, is unnecessary. Kant, p. 239.

60 Kant, pp. 229-30.

delivering the ‘speech’ to the intended audience. The author, having made this

agreement, cannot make agreements with other publishers for the same work. The

publisher has the right to benefit from the reproduction of the work, and has the power

to make over the publication to another. But this is the limit of the publisher’s powers,

and the new publisher is also bound by the original agreement. 61 Kant’s discussion of

the obligations of the publisher, and of the rights of the intended audience is

particularly interesting. Kant would not disagree that the right to use a manuscript to

create copies created property rights in those copies for a publisher. But for Kant, this

right in the copy could not over-ride the rights of the author. A speech act can not

become ‘property’, as they are not ‘things existing of themselves, but …have their

existence but in a person. Consequently these [speech acts] belong to the person of the

author exclusively’.62 For this reason, Kant insists on what we would describe as the

rights of publication, attribution, and of integrity.

Kant imagines that the author dies before publication. He suggests that the

publisher may not suppress the book as if it were his property, and

[T]he public has a right, in case of a want of heirs, either to force him to publish

the book, or to give up the manuscript to another, who offers to publish it. For it

is a business, with which the author had a mind to transact with the public, and

which he [the publisher] accepted as a transactor.’63

Moreover, the manuscript must appear in the author’s name,64 and may not be

altered.65 Not only does the publisher have the obligation to publish, the conditions

under which the publisher was given the manuscript determine how it may be

published:

Should the editor give out the author’s work, after his death, mutilated, falsified,

or interpolated, or let the unnecessary number of copies for the demand be

wanting; the public would be entitled to force him to more justness, and to

augment the number of copies.66

Kant, p. 232.

62 Kant, p. 238.

63 Kant, p. 235.

64 Kant, p. 238.

65 Kant, p. 238.

66 Kant, p. 236.

This is not an obligation to the author, but an obligation to the author’s audience. But

the obligation stems from the original agreement between the author and the

publisher.

A simple analogy can support the moral grounds for this argument. Suppose an

individual (John) were to ask another individual (Jane) to give something to a third

person (Janice). And let us suppose that Jane agrees. Once in possession of whatever

John gave to her to pass on, Jane has an obligation to pass it on to Janice, and Janice

has a right to it. Moreover, Janice has a right to it as it was intended, rather than half

of it, or none of it, or a different version of it. If Jane, for whatever reason cannot

fulfill her obligations, or passes on what she possesses to another person (Jack) to pass

on, then Jack has accepted an obligation to give something, as John intended, to

Janice. There is no (a priori) reason why Jane cannot benefit from this arrangement,

or that John cannot benefit from this arrangement; what matters is that the original

agreement is respected. Suppose John asked Jane to give Janice a message. (Some last

words? Some message John considered particularly important?) We would think it

wrong of Jane not to deliver the message, or not to explain it was from John but to

take credit herself, or to change the message. This appears analogous to the agreement

between the First Nations chiefs who collaborated with Ida Halpern. The chiefs

allowed her to record songs in order that they should be preserved, but, presumably

they also had an audience in mind. It seems then, that we need to reexamine the

consequences of Halpern’s recordings.

Let us begin by supposing that, for the chiefs, this was not music, but law. And

let us suppose that this speech act was not intended for music lovers, but for future

generations of their tribes and nations (to whom they had an obligation to pass on the

songs), as well as a proud and lasting declaration of territory and identity to non-

indigenous Canadians. If we categorize the music as law, and imagine this declaration

to be the intention of the speech act, then Halpern, and following her, the beneficiaries

of her collection, had, and have an obligation to be fulfilled. Halpern appears to have

met part of this obligation, publishing the music as records, and using the chiefs’

explanations of them. But, the current generations of First Nations peoples whose

ancestors collaborated with Halpern, as well as non-indigenous Canadians, have a

moral right to hear the message as it was intended, which was probably not as

background music, but as law. Whether everyone wants to hear it is another matter.

Ida Halpern and First Nations music: art or law?

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