Ethical Use and Distribution of Indigenous Oral Histories
Beyond accessibility (e.g., where a history is stored, who has permission to access it) lies a myriad landscape of ethical issues impacting the access and use of oral histories. For generations, US American researchers and government officials have ventured into the territories and homes of Indigenous communities across the United States collecting stories, experiences, histories, and knowledge related all aspects of Indigenous life. For most of the 20th century, these recorded interviews were collected without express permission from individuals or Tribes/Nations. Formal permissions were rarely attained, as the Western perspective was to collect such interviews in the name of research and cultural preservation of communities considered to be ‘dying’ at the hands of acculturation policies and practices across the nation.
This bibliography aims to curate and annotate literature regarding the legal issues and ethical principles behind the use of and access to Indigenous oral histories. Its goal is to support the development of ethical frameworks regarding the use and access of such collections, Indigenous and beyond.
Understanding foundational literature and cases studies in this realm can offer a foundation for building partnerships, including likely challenges or concerns that may arise; refine technical approaches to sharing Indigenous cultural materials that consider granular access needs and rights metadata; and inform a decision-making roadmap in cases (common with older collections) where rights and permissions remain ambiguous.
Indigenous Knowledge
Cushman, Ellen. 2013. “Wampum, Sequoyan, and Story: Decolonizing the Digital Archive.” College English 76 (2): 115–135.
Available at UF; Public access
Cushman uses the Cherokee Four Worlds Curriculum, which simulates a storytelling experience using Cherokee and Sequoyan, to outline a theory of decolonial archives informed by Walter Mignolo’s concept of epistemic delinking. The imperialist archive has functioned to create decontextualized “dead objects” that are abstracted from their original use and meaning, preserved and displayed in contextual isolation. This process furthers the assumption that the objects’ associated traditions and people are no longer living or using the objects. To combat this, Cushman outlines four main moves to decolonize archives. The first move is to challenge colonial/Western conceptions of linear time by grounding archives in Indigenous worldviews. Next, archives must face the problem of creating dead artifacts by understanding their contextual, cultural meaning to the people who use them. Archived digital media must be re-contextualized with the social relations that give them meaning. Finally, a decolonial archive must prioritize Indigenous languages.
Mahuika, Nēpia. 2019. “Rethinking the Form of Oral History.” In Rethinking Oral History and Tradition: An Indigenous Perspective, 40-60. Oxford University Press.
Mahuika analyzes the form of Māori, specifically Ngāti Porou, oral history—the practice of transmitting cultural knowledge orally. He explores an Indigenous viewpoint of what oral history is, in opposition to the Western definition. His discussion of “oral history as ownership” challenges Western conceptions of individual ownership and the depreciation of knowledge from long ago. To Mahuika, ownership in oral tradition is “embodied in the unbroken form of oral communication that is kept and maintained by Indigenous people on their own terms” (41). This represents an Indigenous form of ownership maintained by the practice of telling and retelling, over generations. To the West, this oral longevity is a liability: there can be no way to empirically validate information passed by word of mouth for many years. However, in the Indigenous perspective, it is this tradition that legitimates the knowledge passed down. Oral history is not something frozen in the past, but that is always recurring in the present, stretching beyond one person’s lifetime. The tradition of retelling does not damage their integrity as part of the contemporary world. To properly understand the significance of Indigenous oral histories, one cannot view them as fossils from the past, but as dynamic, evolving knowledge. This understanding is embodied in the spaces that Māori oral histories are told, such as ancestral meeting houses, and the embodied ways—beyond just orality—that stories are “caught” by the listener.
Anderson and Christen analyze the settler-colonial role of attribution in intellectual property. Attribution, the accordance of an author to property, is an extension of racializing, colonial proprietary power that functions to displace Indigenous authority over cultural property, be it land or songs. Through this process of settler colonial “taking,” the author of property becomes the settler expert behind the video tape or recorder, displacing Indigenous authority and dispossessing Indigenous peoples of their own culture. Attribution in libraries and archives reflects the long-term legacy of authorship, in which the author’s name is forever tethered to the material, restructuring social memory by unmooring cultural property from any Indigenous names or history, imposing a settler-colonial worldview instead. Furthermore, the privileging of the colonial “author” field in archival metadata obscures Indigenous histories by concealing information such as communities, families, and land.
Anderson and Christen call for archives and libraries to understand how their own metadata and markers of attribution perpetuate ongoing settler-colonialism and illustrate this process through a music repatriation project between the Passamaquoddy and the Library of Congress. They emphasize that changing attribution is not simply fixing a mistake in the database, but an “epistemological revision” that displaces settler authority for Indigenous control.
Available at UF; Public access
Writing specifically to concerns of Indigenous musical performances and other sound recordings (oral history, language, etc.), Reed explores the complex interplay between Tribal and U.S. federal law and how this impacts ownership of earlier recordings. Far from arbitrary, 1972 was the year the Sound Recording Amendment to U.S. copyright law went into effect, giving federal copyright protection to future recordings but leaving past recordings protected by state laws. (In 2018, the year after Reed published this article, the Music Modernization Act put in place a schedule for copyright terms on pre-1972 published recordings, which will gradually fall into the public domain under federal law through 2067. Reed has since written about what in his view is a potentially harmful MMA provision to allow noncommercial use of recordings.) Reed argues that non-copyright laws such as NAGPRA, as well as a legal doctrine known as “aboriginal title,” may give weight to Native Tribes’ claims of intellectual property ownership over these earlier recordings. Reed documents one case study of Hopi musical performances, recorded in 1940 by a non-Native folklorist and held today by Columbia University, and analyzes legal arguments under which the Hopi Tribe or individual members may assert rights to some or all of these recordings.
Anderson, Jane and Kimberly Christen. 2013. “‘Chuck a Copyright on It’: Dilemmas of Digital Return and the Possibilities for Traditional Knowledge Licenses and Labels." Museum Anthropology Review 7 (1-2): 105–126, https://scholarworks.iu.edu/journals/index.php/mar/article/view/2169.
Available at UF; Public access
Anderson and Christen provide an overview of Indigenous communities’ obstacles to effectively employing copyright law as a strategy for protecting cultural heritage or ensuring access and use in alignment with community protocols, as well as potential solutions for making progress toward these goals. Engaging with a “critical intellectual property discourse,” the authors describe advocacy around the public domain and open licensing (especially via Creative Commons) and consider how aspects from the latter might apply in an Indigenous digital cultural heritage context. However, the authors also note obstacles to this, particularly that copyright to Indigenous cultural heritage is often not owned by Indigenous community members or is in the public domain (whether because of age or because U.S. copyright law does not protect many traditional cultural expressions). Most of the article discusses development of Traditional Knowledge (TK) Licenses (where communities or individuals legally own rights and can share under a legal license) and TK Labels (which are “educative” and meant to inform potential users of the material regarding ethical protocols regardless of legal rights status).
Radu, Ioana. 2018. “Blurred Boundaries, Feminisms, and Indigenisms: Cocreating an Indigenous Oral History for Decolonization." The Oral History Review 45 (1): 29–47. https://doi.org/10.1093/ohr/ohx073.
In this reflexive and personal essay, Radu discusses a partnership with members of the Cree Nation of Chisasibi and approaches to undertaking oral history in ways that facilitate “mutuality, respect, sharing authority, and sensitivity.” Over the course of six years, Radu “apprenticed” with community members and describes development of wellness research and video ethnography focused on healing, informed by Indigenous feminist activism. Particularly relevant is Radu’s discussion of implementing ethical research protocols with community members, and the potential for methods that meet an academic definition of “ethical” to fall short in practice. In this case, a community member’s critique of a research survey—which had been reviewed by a Tribal committee, approved by the author’s IRB, and included informed consent with participants—prompted Radu to consider ways to more deeply engage with collaborator-participants beyond the brief overview and permission granted during a consent step of the research process. Depending on the purpose and context, oral history initiatives are frequently not reviewed by IRB at all, meaning it is especially crucial for interviewers and their institutions to discuss consent and the terms under which oral histories may be repurposed as more than a pro forma check prior to (or in some cases following) an interview.
Riley, Angela. 2000. “Recovering Collectivity: Group Rights to Intellectual Property in Indigenous Communities.” SSRN Scholarly Paper. Rochester, NY: Social Science Research Network. https://papers.ssrn.com/abstract=2449057.
Available at UF; Public access
Riley examines the deficiencies of current copyright law in protecting Indigenous cultural property, broadly defined to include intangible heritage such as songs, folklore, and religious practices. Copyright doctrine's dependency on concepts of ownership, individual authorship, originality, and tangibility by definition exclude Tribal oral literature, which is collectively produced over generations. Riley proposes an “Indian copyright act” based in a group rights model that finds its precedent in federal dealings with Tribes, and would no longer be dependent on strict ideals of individualism and ownership. This, Riley argues, is a matter of protecting Indigenous identity itself, which is inherently tied to the nexus of cultural property and community relations.
In relation to this project, when making ethical decisions in situations of ambiguous “authorship,” is imperative to remember that oral histories exist not only in the context of the interviewer and interviewee, but are embedded in a network with community-level implications and relationships.
Shell-Weiss, Melanie. 2019. “Good Intentions: Grappling with Legacies of Conflict and Distrust Surrounding a Native American Oral History Project One Generation Later." The Oral History Review 46 (1): 104–133. https://doi.org/10.1093/ohr/ohz004.
The introduction to Shell-Weiss’s case study of the Grand Rapids Native American Oral History Project summarizes a challenge familiar to many engaged in stewarding older oral history collections: “Practitioners on the front lines working to preserve and increase access to oral history collections often do not have the ability to revise informed consent procedures but must navigate the murky waters of the past decisions of researchers and archivists working in earlier eras.” In this case, Shell-Weiss draws on extensive documentation and conversations with stakeholders to trace the history of an oral history project, conducted in the 1970s, that represented a major breakdown of trust between White-led institutions and researchers and Native collaborators and oral history interviewees. Shell-Weiss’s discussion of copyright and ownership highlights both the importance of documenting rights upfront and in engaging oral history interviewees in discussion about potential uses of their own stories. In this case, major concerns arose regarding wide public access to interviews beyond Native source communities, as well as the decision by the library leading the project to produce supplementary interpretive materials over the objections of Native partners. The latter is a cautionary example of a case where no copyright infringement likely took place—the interpreters relied on fair use to summarize and paraphrase, not extensively quote, from the interviews—but where ethical lines were crossed in ignoring the wishes of interviewees and their families
Digitization
Hartwell, Francis, et al. 2016. “Accessing Sound at Libraries, Archives, and Museums.” In Indigenous Notions of Ownership in libraries, Archives, and Museums, edited by Camille Callison, Loriene Roy and Gretchen Alice LeCheminant. Berlin/Boston: Walter de Gruyter GmbH.
Though repositories store large amounts of Indigenous sound heritage, there is a lack of both scholarship around audio archives and technical expertise in accessing and processing them. Digitizing audio involves a serious use of time and resources, and repositories may not have the cultural context to understand the information and accurately catalogue it. Therefore, such undertakings must be collaborative. The authors emphasize that Indigenous source communities must be involved at every stage of digitization process, including being trained in the technical tools of audio processing, as a part of enacting ownership over the materials includes understanding and participating in them.
Regarding access concerns, the authors discuss the American Philosophical Society’s process of digitizing their Indigenous audio recordings, which involved robust community partnerships. The APS restricts online access to sensitive cultural content as well as potentially sensitive material that has not yet been reviewed. They also acknowledge a tension in metadata: the need to make metadata correct and fineable, without providing cultural information that is too revealing. Ultimately, community knowledge dissemination protocols should also guide what content should be open access and what should be restricted. Non-Indigenous participants, they stress, must employ “cultural humility” in understanding and enacting community decisions around use and access.
Leopold, Robert. “Articulating Culturally Sensitive Knowledge Online: A Cherokee Case Study.” Museum Anthropology Review 7, no. 1-2 (2013): 85–104.
Available at UF; Public access
Leopold explores the challenging access decisions made when the National Anthropological Archives digitized a large collection of medical formulae for repatriation to the Museum of the Cherokee Indian. These formulae are written in the Cherokee syllabary, in unique codes, and carry cultural taboos. Among the Eastern Band of Cherokee, there were several divisive opinions regarding access to the formulae—those who opposed any access at all to the formulae as powerful objects, and those who saw them as a source of connection with their ancestors. Ultimately, the sensitive materials were made accessible only on-site in the museum by enrolled members of the Tribe. Their associated online museum records, however, contained links to the Smithsonian’s online catalogue, where the digital surrogates were present. In this way, the Museum of the Cherokee Indian avoided the public dissemination of sensitive material themselves, while still providing the opportunity for community members to view them without the social repercussions of requesting access in-person. This case study is an interesting look at a solution to disparate priorities of access within a single community.
Nakata, Martin, Vicky Nakata, Gabrielle Gardiner, Jill McKeough, Alex Byrne, and Jason Gibson. 2008. “Indigenous Digital Collections: An Early Look at the Organisation and Culture Interface.” Australian Academic and Research Libraries 39 (4): 223–236. https://doi.org/10.1080/00048623.2008.10721360
Available at UF; Public access
During an assessment of the ATSILIRN Protocols for Libraries, Archives and Information Services, researchers found that further guidance was needed regarding digitization of Indigenous materials. The authors of this piece conceptualize best practices guidelines regarding the digitization of Aboriginal Australian materials in libraries. The major priority identified was the need for a comprehensive workflow design: where in the digitization process differentiated practices are flagged for Indigenous materials. The authors hypothesize potential guidelines, supporting documents, and order of operations for digitization projects that begin at selection.
The authors delve into the issue of divisive priorities regarding copyright and cultural rights. Libraries prioritize the digitization of materials that don’t require long negotiation, such as items out of copyright or owned by the institution. However, these criteria can increase inappropriate access to Indigenous materials. Increasingly, indigenous communities are putting pressure on libraries to look beyond the question of copyright to identify ownership. Instead, the considerations are increasingly about the value of an item for Indigenous communities and what cultural and intellectual property rights are vested in it. However, there is no legal protection for institutions that infringe upon copyright to prioritize indigenous cultural rights. Institutions fall somewhere along a spectrum of practice which balances intellectual property rights with Indigenous customary rights and moral rights. The authors discuss several informal strategies used by institutions to minimize risk, such as consultation measures and takedown policies.
National and State Libraries Australasia. 2021. “Procedural guidelines: Risk assessment in oral history recording.” National and State Libraries Australasia. https://www.nsla.org.au/resources/procedural-guidelines-risk-assessment-oral-history
These procedural guidelines establish a pathway to assess risk in online access to oral histories and sound recordings where permissions are missing, poorly documented, or unclear. The first step is to identify and locate rights holder(s). Where this is impossible, the recording is treated as an orphan work. An overview assessment is conducted to determine the likelihood of the recording containing sensitive material, followed by an in-depth risk assessment. The guidelines list examples of what is considered sensitive material, such as personally identifiable information, insensitive language, and confidential information. Libraries may choose to redact portions of recordings which include sensitive material in order to preserve privacy and uphold rights, and not as a form of censorship. Further guidance is given for the necessity of documenting every step of the process, and for takedown procedures.
When it comes to recordings with or about Aboriginal and Torres Strait Islander peoples, the guidelines stipulate that NSLA libraries follow the Aboriginal and Torres Strait Islander Library, Information and Resource Network Inc. (ATSILIRN) Protocols for Libraries, Archives and Information Sciences.
General Oral History
Larson, Mary. 2013. “Steering Clear of the Rocks: A Look at the Current State of Oral History Ethics in the Digital Age.” Oral History Review 40 (1): 36–49. doi:10.1093/ohr/oht028.
Larson discusses legal and ethical issues concerning the digitization of oral histories collected before and after large-scale oral history digitization projects. When it comes to interviews with deeds of gift signed before digitization and online publication was conceivable, Larson outlines four different repository strategies for digitizing, or not. The first strategy presumes that the consent of the interviewee to make their oral history public carries over from physical to digital spaces. These repositories proceed with digitization. The second strategy involves making metadata public online, but not the interview itself. To access the interview, a researcher must contact the repository directly. In this case, access to the actual interview has not changed. The third strategy is to make excerpts of the interview available using fair use guidelines as an ethical gauge. The fourth strategy is for the repository to exercise due diligence in re-contacting interviewees and communities in order to obtain explicit permission to digitize. The University of Alaska Fairbanks undertook this large-scale project. Larson notes that there are ethical considerations beyond these strategies—for example, the level of digital literacy held by the interviewee giving consent. Do they truly understand the level of public access they are agreeing to? Additionally, there are community-level ramifications to consider: what are the implications for the interviewer if their interview is easily and publicly accessible to their community?
Beck, Jeremy and Libby Van Cleve. 2011. “Speaking of Music and the Counterpoint of Copyright: Addressing Legal Concerns in Making Oral History Available to the Public.” Duke Law & Technology Review 10 (1): 1–12, https://scholarship.law.duke.edu/dltr/vol10/iss1/5.
Available at UF; Public access
Beck and Van Cleve preface an oral history case study with a general discussion of copyright ownership in the field. Drawing upon John A. Neuenschwander’s widely cited A Guide to Oral History and the Law (2009), the authors make the case that under U.S. copyright law, rights in oral histories are jointly owned by the interviewer (or the interviewer’s employer) and interviewee. This is an important argument for institutions seeking to share oral histories where interviewee permission was not obtained in writing, but where the interviewer granted permission or where the interviewer’s employer owns rights to that work. The remainder of the article focuses on this common challenge for archives, scenarios in which older collections may lack interviewee agreements or deeds of gift. In particular, the authors discuss a case where musicians’ oral histories were collected without written permission; while the interviewer’s employer may jointly hold rights, this is ambiguous. In such cases, the authors encourage due diligence in seeking permission from one or both participants.
Dougherty, Jack and Candace Simpson. 2012. “Who Owns Oral History?: A Creative Commons Solution." Oral History in a Digital Age, edited by Doug Boyd, Steve Cohen, Brad Rakerd, and Dean Rehberger. Washington, D.C.: Institute of Museum and Library Services. http://ohda.matrix.msu.edu/2012/06/a-creative-commons-solution/
Since its publication a decade ago, this essay has had a major influence on approaches to rights in the field. Dougherty and Simpson question what was then (and to some extent is still today) a common practice of requiring oral history interviewees to transfer their rights to their interviewer or the interviewer’s home institution. While logistically convenient—the collection holding the work may approve third-party uses without contacting the interviewee or their descendants—unless terms are negotiated this model effectively strips interviewees of rights to determine how their own story is used or disseminated. Dougherty and Simpson propose use of a Creative Commons license, incorporated into an interviewee agreement, that specifies in a standardized way how others may use the interview (e.g., for noncommercial purposes only, or without adapting or editing the content). The authors’ approach focuses on the interviewee as the copyright holder, and stresses that interviewees will continue to hold copyright and may license the interview in other ways if they choose. While this approach represents a huge step forward in recognition of interviewee rights, Creative Commons licenses are often unfamiliar or seem complicated; another approach is to discuss specific uses with interviewees that may or may not map onto an existing license.
Digital Projects
Library of Congress. Accessed July 28, 2022. "Ancestral Voices." Library of Congress. https://www.loc.gov/collections/ancestral-voices/?all=true
This project, a collaboration between the American Folklife Center at the Library of Congress, the Passamaquoddy Tribe, and Harvard University’s Peabody Museum, provides online access to songs, stories, language, and other material recorded by anthropologist Jesse Walter Fewkes in the late 19th century. From a rights perspective, this is one example of a case where Traditional Knowledge Labels have been implemented alongside a copyright statement to help guide usage from both legal and ethical perspectives. In this case, Harvard University has asserted rights to the material (presumably Fewkes transferred her rights upon donation to the Peabody). As described on the project website, the Passamaquoddy Tribe selected TK Labels requesting appropriate attribution and limiting ethical use of the collections to noncommercial and educational purposes. These ethical guidelines will remain in place even after legal copyright protections have expired.
University of Texas at Austin. Accessed July 27, 2022. “Archive of the Indigenous Languages of Latin America.” AILLA. https://ailla.utexas.org/
AILLA is a digital archive of recordings, texts, and other multimedia materials in and about the Indigenous languages of Latin America. Their goal is to preserve and make available Indigenous language materials, particularly educational materials. The archive represents over 420 languages, co-created with a number of organizations and depositors. Speakers of Indigenous languages can apply to create their own archive within the site. The archive has nuanced access restrictions and an inclusive informed consent policy, both of which are the responsibility of the depositor of the material. The first access level is “public”. The next, “curation in progress”, is for materials under review or restricted for established reasons, such as ceremony or esoteric knowledge, the wish of the speaker or their family, or an inability to obtain informed consent. The “temporary embargo” level restricts access until a predetermined date. The final level, “controlled access”, requires users to contact the depositor directly to request access.
The archive’s informed consent policy places the responsibility for acquiring consent on the depositor. They must obtain the consent of everyone who participated in creating the materials: speakers, authors, performers, translators, and any other people who contributed significantly. The archive requests that the depositors make the contributors aware the materials will be published on the internet and consider their preferences for access level. This is a highly nuanced method of obtaining informed consent from all parties involved.
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