Last August at the Library of Congress, Dwayne Tomah, an elder of the Passamaquoddy Tribe—a Native American community from what is now Maine and parts of Canada—leaned close to the microphone and began to sing in a deep, slow cadence. The first song was about doing business—a trading song that was historically sung to let people know you were ready to make a deal. The audience was brought to tears.
Why was the crowd, most who were not Passamaquoddy themselves, so moved by this unassuming song? Through a history of violence and erasure at the hands of colonial powers, the music sung that day, a vital piece of Passamaquoddy culture, had been lost for generations. Rediscovered in an archive at Harvard and digitally returned, the Passamaquoddy, and others, are finally learning them anew. And for the audience at the Library of Congress that summer day, a tradition was being resurrected as Dwayne Tomah publicly gave voice to these songs for the first time in over 100 years.
This is the kind of moment Jane Anderson lives for. As a professor in NYU’s Program in Museum Studies and Department of Anthropology, an intellectual property lawyer, and co-director of the intellectual property rights initiative Local Contexts, she has been working for decades with Native, First Nations, Indigenous, and Aboriginal communities all over the world—including the Passamaquoddy—to help them reconnect with cultural artifacts that have been lost, stolen, or misappropriated by a variety of entities, including museums and corporations.
"Not having access to histories, images of families and ancestors, and recordings of cultural songs and stories creates gaps in memory and in the transmission of culture,” Anderson explains. “There is an enormous amount of invisible labor that is required to negotiate the return of or access to these collections. This work is trying to create a shift in how we understand not only these materials, but also the circumstances under which they were collected.”
Local Contexts—a collaborative project with Kim Christen at Washington State University and with various Native American communities in the US—received its second grant from the National Endowment for the Humanities in December 2018, and emerged out of Anderson’s frustration that while Indigenous intellectual property rights are frequently discussed by academics, Indigenous people still have no practical resources available to reclaim their culture.
The songs Dwayne Tomah performed in Washington, D.C., for example, were recorded on wax cylinders in 1890 and then tucked away in an archive at the Peabody Museum of Archaeology and Ethnology at Harvard. Time passed, the Passamaquoddy continued to face threats to their culture and to maintaining their language, and the songs were lost from their cultural memory. The cylinders eventually made their way to the Library of Congress, and when the librarians discovered their origin and could use new technology to digitally recreate the sound off the cylinders, they contacted the Passamaquoddy community and Anderson.
“Digitization is a really important piece of this problem at the moment,” Anderson notes, “because communities are starting to have a lot of their material returned to them in digital form, but they don’t legally own it or control how it gets distributed or used.” While the Passamaquoddy now have copies of this recording, the rights are still legally held by the Peabody.
That’s where Local Contexts comes in. As significant as it was to hear these songs sung aloud, there was an arguably bigger victory that day: they were entered into the Library of Congress databases bearing Traditional Knowledge Labels. Developed by Local Contexts in close collaboration with the Passamaquoddy and other communities, these labels indicate what the rightful (if not legal) owners want people to know and respect about pieces of their culture. In the case of these songs, there is now an “Attribution” label, which indicates that the songs should be attributed to the Passamaquoddy moving forward.
There is also an “Outreach” and a "Non-Commercial” label, meaning that the Passamaquoddy community welcomes the use of the songs for educational purposes, but never for monetary gain. These labels assert that there are additional rights—outside of currently codified laws—that need to be acknowledged, and that Indigenous peoples never ceded their authority or control over their culture to researchers, libraries or museums in the first place.
While Anderson can’t change the laws about who owns these kinds of cultural materials, she hopes that the Traditional Knowledge Labels change how we think about their ownership. “With labels, we can move around the law,” she says, “because they allow a community’s wishes to be expressed even within collections that they don’t legally own.”
The Library of Congress uses the Traditional Knowledge Labels voluntarily, and Anderson can’t force any collection to include them. “The Passamaquoddy made a very clear decision to share their songs with the world, but the Passamaquoddy were asked,” she says. “Most communities have not, to date, been asked.”
But she emphasizes that “lots of organizations want to do the right thing, they just don’t know about or did not previously have access to the right pathways.” After prolonged efforts on the part of Native American communities, museums and archives across the country are beginning to reckon with the complicated histories of their collections and thinking about whether they have the right to own, display, and share materials. Who owns a photograph of someone’s ancestors? Who has the right to sing a traditional song? Who has the right to showcase or learn a language?
Language materials are particularly sensitive, explains Anderson, noting that for many communities whose language is under threat or endangered, this situation “is tied to very traumatic and violent histories.” She adds that numerous language documents were created by researchers—often without the native speakers knowing where these documents are now archived. And as some groups try to regain their language, they may struggle with gaining access to historical materials that an institution owns—a fact that Anderson calls “outrageous.”
In response, Local Contexts recently developed a “Culturally Sensitive” label for materials like these, so that communities can indicate that certain material should be treated respectfully and, if possible, used only with input from the community.
Anderson hopes that the labeling movement will gain momentum, and eventually establish a precedent of Native American community ownership over cultural materials, and community involvement and engagement in how material is shared and displayed. “This work is about restoring a legitimate right, and while copyright might not be able to be changed, rightful ownership can be respected,” says Anderson. “It’s not easy work, because you have to change people’s perceptions of the past, but we’re making progress. And we have a responsibility to deal with the legacies of colonialism. It shouldn’t just be Indigenous people themselves who are trying to right these wrongs.”