The Authority of the Missing One Tenth: Issues of Archaeological Artifact Ownership

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Laurie Leclair Historical & Claim Researcher 218 MacDonell Ave. Toronto, Ontario M6R 2A8 (416) 588-6360; fax: 588-2611 laurie.leclair1@sympatico.ca

Neal Ferris Regional Archaeologist Ministry of Citizenship, Culture & Recreation 55 Centre Street London, Ontario N6J 1T4 (519 675-7742; fax: 675-7777 neal.ferris@mczcr.gov.on.ca

The following is the basis of the delivered text of a paper presented at the Ontario Archaeological Society Annual Meetings, Brantford Ontario, October 17, 1998. This paper is an attempt to present both the authors' personal and professional perspectives, as historical researchers and as archaeologists, on this topic. We post this paper in the hopes of encouraging thought, discussion and feedback. We welcome your comments, but please do not cite without first talking to us.

Abstract

The increasingly successful efforts of Aboriginal communities around the world to obtain and exert greater control over decisions regarding their cultural heritage, including archaeological investigations of their past, are having an impact on both the practice of archaeology in Ontario and on the political management of that heritage. While this has had a most profound effect in the area of burials and the study of human remains, another issue being raised is who owns, and thus can control, the artifact collections generated from Aboriginal sites in Ontario. This paper will review the limited legislative and regulatory framework addressing ownership of artifacts, and discuss the range of views and attitudes on the topic found among individuals representing some of the various sectors affected by this topic. The broader implications the issue of ownership raises, from fiduciary responsibility on the part of the crown, to establishing vestige rights on surrendered lands, to ownership of sites and extra-legal status of Aboriginal interests, will also be outlined.

In the last few decades almost every country across the globe created as a legacy of European colonisation has experienced indigenous or First Nation peoples demanding the return of stolen, mis-appropriated or curated items of cultural patrimony, of skeletal remains and funerary goods, or objects of spiritual significance. Indeed, in a truly telling irony of the late 20th century, even museums and cultural institutions back in the colonising motherlands are facing demands to surrender their collections of indigenous heritage, and are slowly starting to respond to those demands. This ongoing and world-wide debate over who owns cultural heritage is re-shaping the world of studying, collecting, displaying and curating the past.

In North America, the repatriation and ownership debate has largely revolved around ethnographic objects and burials. For the latter, long standing outrage by Native North American groups over the believed desecration of burials by archaeologists and artifact hunters alike began to receive a great deal of public attention in the 1970's, culminating in Ontario anyways with the high profile conflict surrounding Royal Ontario Museum staff and First Nations activists over the Grimsby Cemetery in 1977. Archaeologists on the other hand were slow to recognise these concerns. When they did respond, they tended to cite the scientific prerogative and their right as scholars and researchers to justify what they do. But defending the scientific prerogative, without including meaningful involvement of those clearly associated with the subject matter, has curried little sympathy from the public and lawmakers. So the last twenty years has seen the start of a significant shift around the control and ownership of ethnographic and mortuary remains in North America, a shift that's still happening today.

In the United States the culmination of this shift has been the development of the Native American Graves Protection and Repatriation Act (or NAGPRA). Adopted in 1990, this legislation requires the treatment of all intentional burials found on Federal or Tribal land to be determined by the wishes of Native American Tribes. It also requires all federally funded institutions to list their holdings of skeletal remains, funerary objects and sacred items, and to actively seek to repatriate these materials to the appropriate community for reburial. This latter provision is necessary because NAGPRA explicitly prohibits these institutions from being able to own burial and sacred items, regardless of how they came to possess them. Rather, the act vests ownership of all Native human remains, sacred objects and so on with the appropriate, culturally affiliated Native American or Tribe - in other words the 9 tenths claim of ownership based on possession is rejected in favour of the legitimacy of the final tenth. Institutions can only own these items if they have received the express consent from the "true" Native American owner.

Currently, the repatriation of ethnographic objects and human remains from federally funded institutions is fast becoming an entrenched process in the United States. And, while there has been much discussion, complaint, criticism and even legal challenges around the Act, the debate now has shifted from whether or not reburial should occur, to what some of the problems are in how the process works, the Act is interpreted, that it doesn't apply in State jurisdictions, and so on. Whether you support it or despise it, NAGPRA has fundamentally realigned the path everyone will follow in the future when debating and deciding issues of ownership, treatment of the dead, reburial, etc.

But how do things work here? Well, there is no NAGPRA, but in Ontario what can and can't happen to newly discovered burials and grave goods is addressed under the Cemeteries Act. Published in 1990, the Act covers any instance where human remains are encountered in the ground. For Aboriginal burials, whether uncovered during ground disturbance, by erosion, or uncovered during archaeological excavations, the same restrictions apply. Determining what will occur to all grave goods found in direct association with the interment is a negotiated resolution undertaken solely by the landowner and designated representative for the deceased - the representative identified in the Cemeteries Act as being the First Nations Government nearest to the location of the burials. Archaeologists have no direct role in determining that disposition. Furthermore, the Cemeteries Act explicitly states that scientific studies of skeletal remains or grave goods, other than what is required to determine that the remains are actually human and an Aboriginal cemetery, are prohibited without the consent of the representative for the deceased. While many feel the Act and its process for dealing with Aboriginal burials has many flaws, the point we would make here is that it prohibits any archaeologist from excavating a cemetery, or analysing and keeping the human remains or grave goods from that excavation. In effect, the scientific prerogative is given no legitimacy in the Cemeteries Act and archaeologists can only investigate places containing burials at the behest of the Cemeteries Registrar, and of the Aboriginal community designated to act as the representative for the deceased.

While the Cemeteries Act creates a NAGPRA-like statutory environment in Ontario regarding burials still in the ground, the Act is silent on the issue of skeletal remains and grave goods collected in the past and held now in museums and elsewhere. And there are no other statutes in Ontario that address ownership and repatriation of these items. That being said, it is also clear that the global debate on repatriation and reburial is changing attitudes and policy. Certainly the Task Force Report on Museums and First Peoples, developed in the early 1990's by the Canadian Museums Association and the Assembly of First Nations, strongly advocates a NAGPRA-like process of listing, co-management, repatriation and reburial. Today, some institutions, such as the Royal Ontario Museum, are developing repatriation policies for skeletal collections, and, as we are hearing today, examples of archaeologists and Aboriginal communities working jointly and co-operatively on burial discoveries occur more and more. As well, First Nations communities in Ontario have been developing their own repatriation policies. Some groups have held meetings with museum personnel to view artifacts belonging to their communities, while another First Nation is in the process of canvassing its members in developing a position on repatriation that reflects the wants and opinions of the community.

In today's society, few would dispute the legitimacy of First Nations in determining the treatment of their community's ancestors, and public sympathy towards their demands for skeletal collections to leave laboratory shelves and be placed back in the ground is high. With or without legislation defining ownership, public attitudes have changed, institutional policy is responding, and it seems inevitable that some form of repatriation process for skeletal remains will emerge in Ontario over the next several years. The only question seems to be whether archaeologists and First Nations will take the initiative and develop a process that is mutually agreeable, or if they will wait until a process is imposed through legislation or legal precedents.

Now so far in this paper we've only discussed things that this paper is not about - burials, grave goods, ethnographic and sacred objects, etc. And it's true that, for many, discussing archaeology and archaeological collections is synonymous with the study and collection of burials and grave goods. But, of course, this is only a small part of what day-to-day archaeology is actually about. Today in Ontario hundreds of Aboriginal archaeological sites are found every year, primarily because most regulated development activity - from building highways and houses to quarrying gravel - must ensure the protection of our archaeological heritage. To do this, developers hire licensed archaeologists to survey property, and, where development threatens important sites, to dig those sites up before development occurs, thus preserving the essential data associated with that past occupation. And of the 4 to 5 hundred sites found each year, and 50 to 75 sites completely excavated on average each year, less than a handful will lead to the discovery of human remains, and perhaps only one or two will be found to contain many human burials.

Rather, the vast majority of sites examined by archaeologists represent places where past peoples lived and subsisted on the land. Today these sites are not visible above ground, except for the small artifact fragments that scatter the surface of a knoll in a cornfield or some other place. These sites contain the accumulated remains built up during the period of occupation, be it a place where a deer was butchered, a place where a family camped for a few weeks, or the place where a large community lived regularly for several years - all important, indeed sacred, past places on the land. While the accumulated remains found at these sites consist mostly of waste and discarded items, the by-product of day to day activities, these materials nonetheless are critically important data for interpreting the past, since they tell the story of the many aspects of everyday individual, family and community life. Over the years, literally millions of small stone chips and broken stone tools, broken fragments of clay pottery and a countless quantity of animal bone have been collected from the storage pits, hearths and refuse dumps excavated from small camp sites to large villages. And because these bits can help again and again in telling new stories about the past - through comparison with other collections, as exhibition and educational items, and through scholarly and traditional knowledge re-analyses - all this material is kept and stored. These shelves of boxes of artifacts, in effect, are the archives for the vast majority of the human history of Ontario - documents that otherwise would be lost by the staggering alteration to land occurring all around us in recent decades.

But who owns these bits of stone, clay and animal bone? Almost every archaeologist in this room have asked or been asked that question, but is there an answer? Well, from the exceedingly narrow perspective of the province's existing legal framework, currently there is no legislation that explicitly defines ownership, except for provisions in the 1975 Ontario Heritage Act. Under that Act, anyone wanting to do archaeological fieldwork must hold a license issued by the province. For any materials collected under license, Section 6 of Regulation 881 in the Act imposes a condition on the licensee that states the licensee keep in safekeeping all objects of archaeological significance that are found under the authority of the license. It also states that the licensee's responsibility to keep safe these artifacts can only be extinguished if they donate the collection to the Province, or are deposited in a public institution. The act also states that transfer to a public institution can only occur at the direction of the Minister responsible for the Act, and the intent of the transfer is so that the institution will hold the collection in trust for the people in Ontario. And, as for collections taken by unlicensed artifact hunters, the Act also empowers the Minister to direct that such objects be seized and placed in a public institution, again to be held in trust for the people of Ontario.

So, while the Act does not formally assert a provincial ownership of artifacts, it does mitigate any claims to ownership that a landowner might have, for example, through licensing provisions and Ministerial power. The Act also establishes the principle of public trust, specifically that heritage objects found in Ontario need to be kept in safekeeping for the "people of Ontario." So, defacto, the Act does establish a basis for prohibiting any claim to ownership an individual might try to assert, regardless of possession - in other words the 9 tenths rule is again undermined by recognising the legitimacy of the last tenth, or true owners, in this case the people of Ontario. Of course, these are all just words on paper. Many would argue that there is a serious crisis in how collections are cared for and whether or not the public trust is being looked after or acted on. And while these are serious issues, all we want to emphasise for the moment is that the Ontario Heritage Act does establish, albeit weakly, a concept of public ownership and public trust.

But what about any recognition of First Nations ownership of archaeological collections found on Ontario land? Well, the Ontario Heritage Act, like most comparable legislation in other Canadian jurisdictions, does not recognise a primary right to ownership or indeed any kind of special status Aboriginal peoples might have over archaeological sites. While the province is often willing to acknowledge the special interest and relationship Aboriginal peoples have to their archaeological heritage, the Crown tends to assert an exclusive control over these collections. That the province accepts the responsibility for the conservation and management of the Aboriginal heritage in Ontario could be argued to arise from several different impulses, including the recognition and need to care for the past, or from accepting jurisdictional control arising from the federal/provincial division of powers when Canada was created. However, we would also suggest that the province's responsibility arises precisely from the First Nations interest in their heritage, by creating a fiduciary responsibility inherited by the Crown when it signed past treaties and land surrenders with First Nations.

To explain this, we need to explore the concept of a fiduciary relationship between the Crown and First Nations. The majority of the archaeological sites which are found throughout Ontario are located on land that has been covered by formal, nation to nation land surrender; or in other words, on lands which have come into private hands through a treaty made between one or more First Nations people and the Crown. And when the Crown co-signs a Treaty with a Native Nation, it is entering into a fiduciary relationship. Simply put, a trust relationship between two equal parties is created at the time of formal agreement to a land surrender.

Fiduciary duty is an ancient concept and while people of Anglo-Saxon heritage may point to the Magna Carta for theirs, Native people can speak of ancient and more recent Covenant Chains. The trust relationship between Aboriginal peoples and the Crown certainly can be traced back to the time of initial contact between these Nations. But since this is a discussion focussing on legislative frameworks we'll skip ahead to the Royal Proclamation of 1763, since it is recognised as the document which officially established the fiduciary relationship between Natives and the British Regime, the ancestor of Canada's Federal Crown.

The Royal Proclamation was written after the resolution of the Seven Years war, when Britain had established itself in New France as the primary European power in the region. Among other reasons, the British Crown issued this edict as a way of assuring France's former Indian allies in New France, as well as Britain's own Native allies, that the new British order would impose rules and laws that would define their relationship with First Nations. This led to an official recognition by the British Crown of the inherent rights of Aboriginal people to their land, and a stated policy on the process to be followed when entering into land agreements. The Royal Proclamation acknowledged that Aboriginal people had a usurfructory right to the land, that is, a right of use and occupancy. It was the transfer of this right that had to be negotiated when Britain and First Nations made treaties for land cessions. And while it can be argued that not all Aboriginal rights were transferred under treaty, the point here is that, for those rights and interests Aboriginal peoples had for the lands that were to be transferred, the Crown inherited a fiduciary, or trustee obligation to continue to protect them.

Now, the basic assumption of the Crown at the time, that it was the "legal" authority of the region, and thus could impose British law over the land, is certainly fodder for much discussion and debate. And disputes and challenges to the legitimacy of various land surrenders the Crown negotiated in the 18th and 19th centuries, on principle or of a "contractual" nature, are commonplace today. Nonetheless, it is also true that the British Crown did impose, through the Royal Proclamation, rules of law that the Crown itself had to follow in its relationship and governance with First Nations. So regardless of whether the imposition of British law at the time was legitimate or not, the Proclamation established a level of expected responsibility and liability on the part of the Crown that all its subsequent actions can be measured against.

However, it's also a fact of subsequent history that the Crown's recognition of its fiduciary obligation, indeed its basic responsibility under the Royal Proclamation, waned over the next two centuries. For example, during the era when the Crown asserted sovereignty over much of British Columbia without negotiated treaty or land surrender, the first legal test and definition of Aboriginal usurfructory title to land and the Crown's fiduciary responsibilities occurred. The St. Catherine's Milling Case, decided in 1889, was a very high-profile case between the federal Crown and Ontario over the ownership of 55,000 square miles northwest of Lake Superior. In its resolution, the court found that while Native peoples had some form of title, they did not own it outright, because these people never "improved" the land in that Victorian sense of clearing and farming. So, after St. Catherine's Milling, Aboriginal title to land was considered to exist, albeit not in a fee simple way afforded to patent owners. Ironically, although no Native people were party to the action, St. Catherine's Milling remained an important case for aboriginal land rights for nearly 100 years.

In recent decades court decisions have revisited the nature of Native Title. In 1979, Guerin vs. the Crown described usurfructory land rights as "inalienable", but ruled that "the Crown is under an obligation to deal with the land on the Indians' behalf when the interest is surrendered. The judge also found that the fiduciary obligation that is owed to the Indians by the Crown is sui generis or unique, by noting the special character both of the Indians' interest in the land and of their historical relationship with the Crown. It's tempting to see, in light of our discussion today, an acknowledgement in this decision of a moral obligation on the part of the Crown to look after Aboriginal people's archaeological heritage, even on private property.

In 1982, section 35 of the Constitutional Act recognised the Aboriginal and treaty rights of Canadian Natives. A subsequent Supreme Court of Canada decision, known as R. vs. Sparrow in 1990 upheld section 35 to protect the cultural identity of Aboriginal peoples. Also, it identified the relationship between the Government and Native people as "trust-like, rather than adversarial". Although argued over aboriginal fishing rights, it isn't unreasonable to argue that aboriginal archaeological heritage is also part of the "cultural identity" of Aboriginal peoples, and thus needs protection. Also, the fiduciary, or "trust" relationship as set out in Guerin and refined by Sparrow (and further addressed in the recent Delgamguw decision), calls for a co-operative and equal partnership between the Crown and Aboriginal peoples.

It's also worth noting that recent Treaty negotiations now expressly identify the Aboriginal interest in Native heritage, and jurisdictional control of heritage on their lands to be retained after settlement. In the historic Nis'ga treaty in British Columbia, a chapter is devoted to the repatriation of ethnographic items, burials, and other objects of cultural patrimony, and also commits the Province and the Nis'ga community to protecting heritage on their respective lands. Similarly, in the Nunavut Agreement for the eastern Arctic, a process has been created for monitoring the protection and excavation of heritage sites within the Nunavut Territory. While these negotiated agreements were for lands not previously subject to negotiated surrender, the fact that cultural patrimony is explicitly identified as an unsurrendered interest obviously has implications for other areas of the Country.

It doesn't take a constitutional expert or treaty negotiator to recognise that since the constitution was adopted in 1982, the courts are slowly recognising and defining aboriginal title and the Crown's obligations to Aboriginal peoples' rights and interests, and measuring the Crown's fulfilment of its obligations against its stated commitment in the Royal Proclamation. So what does this mean for archaeology and ownership of artifacts in places like Ontario where lands have been previously surrendered? Well, when treaty negotiations like Nis'ga and Nunavut identify cultural heritage as an Aboriginal interest and Crown responsibility on lands surrendered, then it suggests this is an underlying right and interest Aboriginal communities held at the time of the Royal Proclamation. Otherwise the Crown would not have to recognise this issue today. So, putting aside for a moment the many questions surrounding the legitimacy of past treaty and land surrender negotiations, even if the Aboriginal interest in their cultural heritage and burials is absent from the 18th and 19th century treaties negotiated for Ontario lands, there is a good argument to be made that the interest and thus underlying title for Aboriginal heritage was nonetheless present.

This, then, would be the basis for arguing the Crown has a fiduciary responsibility to care for Aboriginal heritage on lands under its control as a result of surrender. Likewise within this reasoning of a fiduciary partnership, on lands retained by First Nations they thus hold the responsibility of caring for the cultural heritage found there. However, the question still remains that while the Crown has a fiduciary responsibility, this might not necessarily also legally support asserting the primacy of an Aboriginal interest on that archaeological heritage. Likewise fiduciary responsibility may not establish a basis for asserting an unextinguished or vestige title for locales on lands surrendered that contain archaeological sites, which presumably would be needed to argue First Nations retain ownership of the artifacts recovered from these sites. Unless, of course, it can be demonstrated that the Crown has failed to meet its fiduciary obligations. As such, it seems that the creation of a NAGPRA-like control for First Nations over non-burial related archaeology is still a long legal haul, with an uncertain end result.

But we've been reviewing here a fairly narrow, legal perspective to this issue. None of this can deny the fact that Aboriginal communities do have an interest in the Aboriginal heritage of everyday life being uncovered by archaeologists across the province, and shouldn't prohibit the efforts of archaeologists and First Nations to move forward on the issue. The law, after all, tends to take awhile to catch up with changing attitudes and realities. Indeed, as a result of shifting attitudes and a loss of control over things like burials and sacred objects, archaeologists are being forced to engage with Aboriginal peoples on a more regular basis. Over time, this has led archaeologists to develop meaningful dialogue and communication, leading to mutually beneficial partnerships with individual Aboriginal communities. At the same time, at least some First Nations have indicated that, for them, the issue of archaeology beyond burials is not so much possession of these millions of bits of broken stone, animal bone and clay pottery, but rather informed participation and even control over the practice of archaeology. For example, one First Nation has already developed a custodial relationship with a local museum, which has agreed to turn over their archaeological collections, with the understanding that the larger community can have access to them for educational and research purposes. Indeed, the notion that ownership of collections can rest with a First Nation, while the collections continue to be accessed for the purpose of studying the past, or even left in a research institution for that purpose, is echoed in many current treaty negotiations. If archaeologists can respect and meet the need of First Nations to have meaningful say in the investigation of their heritage, and if First Nations can recognise and respect the commitment and care archaeologists practice when studying that past, then a truly meaningful and formidable partnership can emerge, without being forced through the combative realm of the courtroom and imposition of legislation. This can only be to the benefit of Ontario's archaeological heritage.

So, to conclude, who owns the artifacts? Well if the Crown has a fiduciary responsibility to care for this heritage, then the provisions of the Ontario Heritage Act establishing a provincial ownership are simply a partial fulfilment of that responsibility. And perhaps where the Act reads "in trust for the people of Ontario" it should more rightly read "in trust for the people of Ontario and our First Nation Partners." But defining where ownership rests in law is only a small part of the whole issue of who controls archaeological sites, artifacts, and the practice of archaeology. The point should really be that we are all obligated to the people who came before us to care for the heritage they left behind, and by working together, equally, we achieve the best way to meet that obligation from the past, and come to better understand and respect each other today.