1
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, …..
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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
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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.
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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.
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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
10
Cole and Mullins, pp. 29-33.
11 Cole and Mullins, p. 29.
12 Cole and Mullins, p. 30.
13 Ida Halpern, Indian Music: Nookta, 3, cited in Cole and Mullins, p. 30.
14 Cole and Mullins, p. 30.
15 Chen, p. 52.
16 Chen, p. 53; Cole and Mullins, p. 28
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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
17
Cole and Mullins, p. 31.
18 Cole and Mullins, p. 32.
19 Ida Halpern, Ethnomusicology, 270, cited in Cole and Mullins, p. 33.
20 Cole and Mullins, p. 34.
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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.
21
Ida Halpern, Vancouver Province, 31 January 1953, cited in Cole and Mullins, p. 7.
22 Chen, p. 51; Cole and Mullins, p. 36.
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'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
23
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.
26 Cole and Mullins, p. 24.
27 Halpern, Kwakiutl Indian Music of the Pacific Northwest, 5, cited in Chen, p. 45; Cole and Mullins,
p. 20.
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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
28
Cameron, cited in Cole and Mullins, p. 21.
29 Cameron, cited in Cole and Mullins, p. 21.
30 Cole and Mullins, p. 24.
31 Cole and Mullins, p. 24.
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.
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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
34
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.
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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
36
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.
12
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
38
Chen, p. 57.
13
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
14
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
39
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.
15
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
43
Jack Goody, “Memory in Oral Tradition”, in Patricia Fara and Karalyn Petterson (eds.), Memory,
Cambridge: Cambridge University Press, 1998, pp. 73-94.
16
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.
17
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:
46
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.
18
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
49
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.
19
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
52
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.
20
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….
21
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.
22
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
58
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.
23
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
61
Kant, p. 232.
62 Kant, p. 238.
63 Kant, p. 235.
64 Kant, p. 238.
65 Kant, p. 238.
66 Kant, p. 236.
24
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