The Traditional Knowledge and Biocultural Labels System: A Strategy for Recognizing Indigenous Cultural and Intellectual Property Rights

The Penobscot Nation is a federally recognized tribe in the United States with a population of 2,397 whose ancestral territories and waters include, but is not limited to, the entire Penobscot River watershed. Penawahpskewi is the name for Penobscot people, and is a word that connects people to the rocky part of the Penobscot River near Indian Island and Old Town, Maine. Today Penobscot territories consist of 123,000 acres, which include trust land and fee land acquired through the 1980 Maine Indian Claims Settlement Act, reservation lands and 200 islands within the Penobscot River (Newsom et al 2014, Francis 2014, Prins and McBride 2007, McBride and Prins 2009).

Concerns about representational politics, histories of dispossession and the development of self-determination and strategies for the recognition of sovereignty continue to inform Penobscot internal and external policy focus (Ranco 2005, Ranco and Suagee 2007, Loring 2008). Over the last 20 years there have been several incidents that prompted attention to questions about tribal authority, integrity and sovereignty over tribal knowledge, language and history collected and recorded by non-Penobscot people. Distrust of researchers arising from prolonged misrepresentation has had many consequences including deep skepticism of researcher intentions and the deliberate if not also playful obscuring of community traditions (Prins 1998). One incident in 1998 that continues to reverberate at different levels within the community involved the dissolution of a collection of Penobscot material and immaterial culture that had been held in trust by the researcher, Frank T Siebert, who worked for and with the Nation for over 30 years.

Siebert’s research was focused largely on the Penobscot language and through collaboration and engagement with the community over a 30-year time period, the Penobscot Nation and Siebert had produced an enormous Penobscot language collection. Upon his death however, Siebert’s collection and research were inherited by his daughters who were understood in law to be. ¹In his time working with and living close to the Penobscot Nation, Siebert did not exhibit great wealth. He lived in a small house that was full and cluttered. After his death, his rare book collection that he had amassed was sold at Sotheby’s in two parts. The first sale reached a figure of $6 million dollars (Lowry 1999), and the second sale making $12 million (Sotherby’s 1999). Siebert had an estranged relationship with his daughters, and they, in turn had no relationship with the Penobscot community. All this material was taken away from Old Town and Indian Island and transferred to institutions in other parts of the country. Ownership of the language research material was legally transferred to the American Philosophical Society in Philadelphia where it currently resides as a collection constituting 41 linear feet. The material culture went first on loan to the University of Pennsylvania Museum of Archaeology and Anthropology, then on loan to the Abbe Museum in Maine and then in 2006 to auction at the behest of one of the daughters.²“Skinner to sell American Indian art collection” September 24, 2011, https://www.liveauctioneers.com/news/auctions/upcoming-auctions/skinner-to-sell-american-indian-art-collection-sept-24/

The Penobscot Nation has no idea where these items now are. The nature of the private auction effectively ‘disappears’ collections, as no public record of sales, and of individual purchases is made. Siebert’s daughters, the staff at the APS and at UPenn Museum
had no policies in place that recognized the authority that the Penobscot Nation inherently had over these collections, and as such there was no consultation with the Penobscot Nation as central decision makers over the future of any of this material.

What this incident mobilized was a concern that the Penobscot Nation had no mechanisms to ensure the respectful treatment of Penobscot culture by non-Penobscot people. It also did not have any infrastructure in place for a research permitting process, or processes to secure and protect cultural knowledge. In 2002 the Cultural Historic Preservation Committee was formed. James Francis was the first chairperson of that committee and one of its key functions was to be a supplemental advisory to the new Department of Cultural and Historic Preservation. This led to the decision that the Penobscot Nation needed its own Institutional Review Board to monitor and assess research that involved Penobscot people and knowledge. Through complimentary projects, a ten-member Intellectual Property (IP) Working Group was set up with a representative from a range of tribal departments including the Child Support Agency, Information Technology, Indian Health Services and Tribal Planning. This decision to bring different departments together to deal with questions of intellectual property and research has been the glue for much of the work that the Penobscot Nation is now undertaking.

This project and the engagement that it facilitated led to three further internal tribal developments: the establishment of the Penobscot Tribal Research and Resource Board (PTRRB), the development of several Memorandums of Understanding with institutions that are important to the Penobscot Nation because of the collections that they hold; and the development of the Penobscot Nations’ own set of Traditional Knowledge Labels. The Penobscot Nation’s utilization of the TK Labels is a strategic way of addressing the problem that the Penobscot Nation cannot claim ownership to large collections of Penobscot cultural heritage held in institutions nationally and internationally. With legal ownership of these collections beyond the Penobscot Nation’s control, the only realistic way to recognize the unique nature of Penobscot authority, governance and interests in these collections has been to come at the problem in another, albeit extra legal and educational means – through the TK or Traditional Knowledge Labels system developed by Local Contexts in 2012.

The implementation of the TK Labels at the community level allows the Penobscot to obtain two major objectives. First, the Penobscot community uses the TK Labels to prompt community members to share stories about items that are housed in institutions and have been absent from the community for generations. This interaction enhances our ability to tell the stories of our grandparents and other elders that exist with these items within our community. An important component is access to these items. Although the Penobscot Nation has a portal to view some items online, gaining access to digital versions of these, that can be accessed through our own content management system (Penobscot Collections is built on Mukurtu CMS) is critical for this process. Negotiating with institutions for digital copies of cultural heritage items is vital to the sharing at the community level. Secondly, and a product of the community access to the items, is the implementation of the TK Labels at the institutions which house Penobscot cultural heritage items. The TK Labels allow the community voice to be returned to the items that have been silenced on the back shelves of institutions. The process is self-perpetuating. The more the community has access to these items, the more there is say about them. The TK Labels are the mechanism for this community voice, authority and governance at the institution level, and the prompt to share at the community level.

The Traditional Knowledge (TK) and Biocultural (BC) Labels System

The TK Labels

The TK Labels are an extra-legal and educational digital mechanism to reposition Indigenous cultural authority over Indigenous collections. TK Labels are a practical tool to enable Native, First Nations, Aboriginal, Metis and Indigenous communities to define the circulation routes and access obligations for digital cultural heritage items and collections. They also help institutions address the uncomfortable histories in their collections’ provenance. Importantly, the TK Labels are aimed at enabling relationships between Indigenous and non-Indigenous rights holders by correcting and providing more information about materials to help those who want to use the materials outside of the communities make better decisions about re-use and circulation.

The TK Labels system has two objectives. Firstly, to enhance and legitimize locally based decision-making and Indigenous governance frameworks for determining ownership, access,
and culturally appropriate conditions for sharing historical and contemporary collections of cultural heritage. Secondly, to promote a new classificatory, curatorial, and display paradigm and workflow for museums, libraries, and archives that hold extensive Native/First Nations collections by recognizing inherent Indigenous authority in these materials and their representation.

With the bulk of Indigenous cultural heritage material either legally owned by non-Indigenous Peoples through copyright law, or existing in the public domain, the TK Labels are an alternative means for conveying ongoing relationships and authorities around cultural heritage materials – including, importantly their proper use, guidelines for action, or responsible stewardship and re-use. The TK Labels can be used within tribal institutions and online projects as well as within libraries, museums, and archives to add missing or excluded rules and governance conditions to already existing catalog records, as well as providing additional context, and define responsible re-use of the materials. The TK Labels can be used to include information that might be considered ‘missing’ (for instance the name of community from where it derives), what conditions of use are deemed appropriate (for instance if the material has gendered or initiate restrictions associated with it), whether correct protocols for vetting materials have been followed (for instance many tribes now have tribal policies and agreements for conducting research on tribal lands), and importantly, how to contact the relevant family, clan or community to arrange appropriate permissions.

There are currently 18 TK Labels that have been developed through collaboration and engagement with Indigenous communities in the US, Canada, and Australia. Each of the TK Labels has a unique icon and accompanying explanation. In all local contexts where the TK Labels are being used, the icon remains the same, but the text can be customized to reflect local values, definitions and governance. Keeping the icons stable produces a visual standard for all institutions. This means for instance, that the Penobscot TK Labels, can be used for Penobscot cultural materials in national and international institutions in the US, Canada, France and the UK.

The TK Labels enable Indigenous communities to include important access protocols about cultural heritage that currently resides in cultural institutions. The TK Labels open a space for a different dialogue with collecting institutions about access and the extralegal and cultural forms of ownership and authority that have been haunting these collections. Importantly, the Labels are also a vehicle for providing a new set of procedural workflows that emphasize vetting content, collaborative curation, ethical management and engaged sustained outreach practices. The TK Labels are a tool that productively engages with the historical exclusion of Indigenous Peoples from controlling cultural representation, reconsideration of the authority and ownership of collections themselves and the urgent need for change.

The Biocultural Label Initiative

If the TK Labels were designed to address the erasure of Indigenous names, authority and governance over historical collections of cultural heritage currently within cultural institutions, the Biocultural (BC) Label Initiative take these issues of proper provenance, transparency in research engagements and integrity in research into the realm of future resources, specifically genetic resources on Indigenous lands and waters. The Biocultural Labels Initiative anticipates transforming practice

by focusing on how to practically encode Indigenous provenance information and cultural responsibilities into research data – data that is collected as part of research practices happening within Indigenous contexts today, particularly in the sciences. As a digital data ethics strategy the Biocultural Labels make visible the provenance and ethics of collections; outline community expectations and consents about appropriate use of the collections; connect data to people and environments, thereby maintaining relationships to data over time and enhancing the capacity for Indigenous control of Indigenous data. This initiative provides a practical application of Indigenous data sovereignty principles to issues of access and benefit-sharing for genetic resources.

As the TK Labels provide a conduit for enriching relationships between Indigenous communities and cultural heritage institutions, the Biocultural Labels support relationships between Indigenous communities and scientific organisations. These relationships aren’t always mutually exclusive because cultural items held in museums are often also the subject of scientific investigations. Use of the Labels ensures Indigenous communities are involved in discussions about research as well as future data use. Indigenous communities’ aspirations for greater control of Indigenous data cover both traditional knowledge and scientific information associated with their people, lands, waters and territories. In tandem, the TK labels and the BC labels create transparency about local Indigenous rights and cultural responsibilities as Indigenous data are embedded in national institutions and traverse global digital infrastructures.

Relevant Digital Links

Penobscot Collections: https://penobscot-collections.com/ 

TK and Biocultural Labels: https://localcontexts.org/ 

ENRICH: https://www.enrich-hub.org/