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INTRODUCTION
Since the late twentieth century, Indigenous cultural and intellectual property rights, understood as the rights of Indigenous people to own and control their cultural heritage, have been the subject of increasing international debate. Footnote 1 In countries like Australia, Canada, and the United States, Indigenous people have sought greater control over cultural heritage including sacred sites, traditional knowledge, artworks, ancestral remains, dances, languages, and documentation of heritage in books, films, sound recordings, photographs, and reports. Footnote 2 The colonialist conditions under which cultural heritage items were removed from their Indigenous owners, coupled with the loss of culture and cultural memory, has ensured that discussions around rights to, and responsibilities over, collections, documentation, and representation of heritage are imbued with politics and emotions. Many forms of Indigenous cultural heritage were collected during a colonial era when Indigenous societies across the world faced genocide, the annexation of territories, forced removals, and discrimination by European imperialists. Commercial photographers, missionaries, anthropologists, government representatives, and explorers obtained Indigenous cultural materials and documented peoples’ ceremonies, physicality, and everyday life. Footnote 3 During the era of salvage anthropology, a number of objects were acquired and photographs taken based on the belief that forms of material culture needed to be “secured” before Aboriginal Footnote 4 people “died out.” Footnote 5
Concerns regarding the protection of Indigenous cultural and intellectual property have become firmly embedded within global human rights discourses, Footnote 6 yet Indigenous people continue to face significant challenges regarding the safeguarding of, and control over, their cultural heritage. Footnote 7 A mismatch exists between the world’s intellectual property laws and Indigenous notions of creation and ownership. Copyright, the dominant paradigm for the protection of cultural property, represents an inherently Western philosophical idea, imbued with Western values and assumptions. Footnote 8
Legal protection afforded by copyright laws frequently does not extend to Indigenous cultural heritage. For example, the copyright requirement of fixation in a tangible medium of expression precludes protection for intangible Indigenous cultural materials like songs, dances, and oral folklore. Footnote 9 The fact that rights conferred by intellectual property laws are limited also poses problems because, as Indigenous Australian lawyer Terri Janke has observed, “rights to culture last forever.” Footnote 10 Even if Indigenous cultural heritage is protected by copyright laws, the recognized copyright owners are not necessarily Indigenous. Films, sound recordings, photographs, and manuscripts based on Indigenous cultural heritage or representing Indigenous people are often legally owned by their non-Indigenous makers. Footnote 11
The legal non-recognition of various Indigenous laws and customs pertaining to the protection of cultural heritage has provoked international discussion about protocols, particularly within the realm of cultural industries. Debate has focused on how protocols, commonly known as an “established code of procedure or behavior” or “official etiquette,” can operate as a tool to protect Indigenous cultural heritage. Footnote 12 In the Indigenous studies’ literature, two main forms of cultural protocols are discussed. The first type, often described in ethnographies, are those protocols applied within an Indigenous community that prescribe, among other things, hierarchies of knowledge and rules around passing on ancestral stories and designs between generations. Footnote 13 The second type of cultural protocols has emerged as a response to the inadequate legal protection of Indigenous heritage items. These protocols have been, and proceed to be, created in cross-cultural engagements, as when non-Indigenous anthropologists and art historians engage with Indigenous communities in the display and exhibition of their material culture. Footnote 14 Writing about the Australian context, Howard Morphy has noted that protocols “have developed as a mechanism for mediating relationships between Indigenous and non-Indigenous Australians.” Footnote 15 We focus on these latter protocols.
Since the turn of the century, Canadian organizations such as the Creator’s Rights Alliance, the Department of Canadian Heritage, and the First Peoples’ Cultural Council have staged symposia to explore the content and relevance of Indigenous protocols. Footnote 16 Canadians are currently working on developing a set of guiding protocols and principles for the arts. Footnote 17 In the United States, archivists, librarians, museum curators, historians, and anthropologists have drafted the Protocols for Native American Archival Materials to outline “best professional practices for culturally responsive care and use of American Indian archival materials” held by nontribal institutions. Footnote 18 In Australia, the past four decades have seen the development of a “culture of protocols” Footnote 19 with published documents outlining, among other things, appropriate ways of conducting research with Indigenous people, the use of photographic and video cameras, the acknowledgement of traditional ownership of country, the repatriation of Indigenous museum objects, and culturally responsible ways of trading in Indigenous art. Footnote 20
This article examines the functioning of Indigenous cultural protocols within Australia’s contemporary art world. The Australian art scene represents an excellent site for the study of protocols since written protocols have circulated and operated within this context for decades. As noted by Canadian Gregory Younging, “initiatives in Australia are three decades ahead of Canada’s. We must create awareness around our cultures and protocols like the Aboriginal people in Australia have.” Footnote 21 Australia’s approach to Indigenous protocols seems to present a useful model for the further development of international policies and methods to protect Indigenous cultural heritage. However, as we will demonstrate, there are still several issues and complexities to attend to.
This article will address the following questions as a preliminary scoping of the issues at hand: how do artists incorporate cultural protocols in their artistic process; who has the authority to identify and act upon a breach of protocol; and whose protocols are being enforced? To answer these questions, we present two case studies of protocol breaches. The first case concerns a complaint made by artist Christian Thompson against an artwork that was subsequently removed from exhibition at the Melbourne International Art Fair. The second case involves the objection by Yarnangu from Warburton, an Indigenous community located on the Ngaanyatjarra Lands in Australia’s Western Desert, against the display of a video installation developed by artist r e a, as part of the exhibition Yours, Mine and Ours: 50 Years of ABC TV. Footnote 22
These case studies are chiefly based on semi-structured and informal interviews conducted by the first-named author as part of an anthropological study of urban-based Indigenous Australian artists and their photo-based works. Footnote 23 This study, carried out between 2006 and 2011, examined processes of meaning making and value creation around four artists’ careers and art in Australian and international visual art scenes. Footnote 24 The cases will demonstrate that cultural protocols can preclude the inappropriate use and display of forms of Indigenous heritage. Moreover, their enactment has the potential to instigate a change in behaviour towards the use of Indigenous cultural materials. However, complaints of breaches of protocols can also curtail the creativity of Indigenous artists, resulting in feelings of hurt and disempowerment and an experienced challenge to the construction of Indigenous identity. Finally, although protocols ideally serve to increase Indigenous control over cultural heritage, the cases show that those responsible for identifying and resolving transgressions are not necessarily individuals with a cultural connection to the contested objects. Although discussions about compliance are infused with rhetoric about the authority of “the Indigenous community,” Indigenous people with cultural claims to contested heritage objects do not always have a clear voice in decisions made about their use. Footnote 25
AUSTRALIAN PROTOCOLS IN CONTEXT
The 1960s marked the beginning of a growing recognition by Australian institutions of Aboriginal perspectives regarding rights to, and responsibilities for, cultural materials. In 1967, the Australian Institute of Aboriginal Studies, as it was then known, curtailed the distribution of films produced by its own film unit because they documented restricted Aboriginal men’s ceremonies. This institute subsequently decided on a buy-back policy to try and remove these ethnographic documents from the public domain. Footnote 26
Aboriginal political activism has been integral to the development of cultural protocols. In the late 1960s, the emergence of an Aboriginal protest movement heralded the beginning of two decades of social and political upheaval and the growing cultural and political visibility of Indigenous Australians. Australia’s major cities became the site of protests for social justice, and art became a particularly important vehicle for expressing cultural identity and demanding cultural recognition. Footnote 27 The articulation of an Aboriginal rights agenda influenced and occurred in tandem with changes in Australia’s political landscape. The 1970s saw the passing of land rights legislation and a shift from policies of assimilation and integration to Indigenous self-determination and self-management. Footnote 28 Such policy changes emphasized growing respect for Aboriginal society. Within this socio-political climate, Indigenous Australians began to request control over cultural materials that related to them. Jane Lydon writes how, during the 1980s, “Australian museums became the target of vocal protests from Indigenous people demanding community access to collections, the appropriate display of objects, and training and employment within the museum sector.” Footnote 29 As described by Francesca Merlan, written Indigenous protocols emerged within the context of Australia’s post-war “reparations politics.” Footnote 30 They developed as part of a broader recognition of Indigenous structures of authority and governance and out of a widespread sense of moral obligation. Footnote 31
The first published protocols mainly focused on guiding interaction between Aboriginal communities and non-Indigenous visitors, such as researchers and filmmakers. Footnote 32 From the 1990s onwards, following the institutionalization of Australian approaches to reconciliation, the number and scope of written protocols has steadily increased. The document that laid the foundation for the development of protocol principles relevant to visual artists was released in 1999. Written and researched by Terri Janke, Our Culture: Our Future—Report on Australian Indigenous Cultural and Intellectual Property Rights delineates Indigenous concerns about, and wishes regarding, the use of their cultural heritage. Footnote 33 Furthermore, it describes deficiencies in existing intellectual property laws in Australia and recommends strategies to increase Indigenous people’s control over their material culture.
In 2002, the Aboriginal and Torres Strait Islander Arts Board (ATSIAB) of the Australia Council for the Arts, the main funding body for Australian artists, published a series of protocol guides that provide advice on respecting Indigenous cultural heritage to those working in or with the Indigenous arts sector. These guides largely draw on the 2001 document Valuing Art, Respecting Culture: Protocols for Working with the Australian Indigenous Visual Arts and Craft Sector. Footnote 34 The latter had been commissioned by the National Association for the Visual Arts (NAVA)—the peak body that represents the interests of Australia’s visual art sector—to underline its continuing support of Indigenous art and artists. The keywords in Valuing Art, Respecting Culture are control and respect. Indigenous Australians, as stated repeatedly, have the right for their cultural heritage and values to be respected. This includes the right to prevent or refuse derogatory use of cultural material and to retain control over and use special measures to protect their cultural heritage.
The case studies in this article explore the application of the above principles in conjunction with the alleged protocol breaches. The first case study explores what could potentially be called a typical scenario where an artwork was created, found to be breaching cultural protocols, and then removed. The second case study complicates this perception. In each study, we first briefly discuss the cultural objects under debate since it is these object histories, coupled with their physical make-up, that produce the notable tensions in their contemporary use. Second, we introduce the individuals involved and explain their roles in the conflicts over protocol. Third, the process of consultation and discussion that resulted in the artwork being removed will be briefly described. Finally, we will discuss the aftermath, particularly the effect of protocol complaints on the “accused.”
CASE STUDY 1
The Object
In 2006, artists Helen Johnson and Michelle Ussher created a drawing based on a collage that included a photograph of Pitjantjatjara children from Ernabella, an Indigenous community located in the northwest of South Australia. The artwork was intended to be displayed at the Melbourne Art Fair, within the Gertrude Contemporary’s project room. Footnote 35 The original image was sourced from the book Australia New Zealand as part of a Time Life series and had been taken by the well-known Australian photographer David Moore in 1963. Footnote 36 The contemporary drawing by Johnson and Ussher depicted a group of Indigenous children running around naked on a pile of rocks. In the forefront, non-Indigenous people were picnicking on a blanket. A number of children sat on a kind of wooden structure in between the rocks, while what appeared to be giant mushrooms grew at the scene.
The Complaint
A number of days prior to the opening of the Melbourne Art Fair, Christian Thompson filed a complaint about this particular drawing. Thompson is an artist of Bidjara and mixed European heritage. The Bidjara Aboriginal people from whom he descends live in Central West Queensland, far from the area where the photo originated. His objections to this work of art entailed three key issues: self-representation, misrepresentation, and the disregard of community protocol. With regard to the matter of self-representation, Thompson had asked: “How many times do you have to tell non-Indigenous people: do not represent us through your cultural paradigm?” Footnote 37
Although the artist is not necessarily opposed to non-Indigenous artists working with Aboriginal cultural materials, he questions the motivations of those who want to fight on behalf of Indigenous Australians. The drawing by artists Johnson and Ussher, entitled The Only Thing You Taught Me Was The Only Thing You Know (2006), sought to comment on the invisibility of Aboriginal experiences and values in the public domain in general, and in Australian historiography in particular. As explained by Johnson in a blog post, the surreal landscape served to present a site where cultural conflicts could be acknowledged - for instance about the occupation and exploitation of the Australian landscape by non-Indigenous people - and where representations of Indigenous Australians could be reassessed. Footnote 38 Christian Thompson challenged the authority of such activism by asking: on behalf of whom?
The most important objection put forth by Thompson involved the disregard of cultural protocol. Johnson and Ussher had appropriated a historical photograph of unidentified Indigenous children without consulting with the individuals portrayed or with their descendants. Thompson described to the first-named author that his insistence on the artwork’s removal from display was based on principle. His art practice, he elucidated, is about speaking up for Aboriginal persons who are unable, or do not feel confident enough, to stand up for themselves in these situations. Footnote 39 Thompson also made clear that his complaint was about creating awareness of Indigenous cultural protocol among people who reclaim historical images depicting Aboriginal Australians.
The Process of Removal
Following Thompson’s complaint that the artwork disregarded protocol, The Only Thing You Taught Me Was the Only Thing You Know was withdrawn from exhibition at the Melbourne Art Fair. After determining the need to protest against the artwork, Thompson contacted a number of art professionals. He first approached Alexie Glass who was the director at that time of Gertrude Contemporary and responsible for the project room’s exhibit. During this conversation, Thompson asserted that he deemed the artwork offensive and in breach of written Indigenous protocols advocated by NAVA. The artist subsequently got in touch with NAVA to inquire about its position on compliance with protocol in this particular case and to voice his objections against the artwork. Moreover, Thompson approached Brenda L. Croft, the then senior curator of Indigenous art at the National Gallery of Australia, and renowned Aboriginal cultural activist and artist Richard Bell. He also phoned the organizers of the Melbourne Art Fair to state his complaint, causing them to also notify Glass about their alarm.
In response to the objections made against the display of their drawing and in an attempt to resolve the matter before the opening of the Melbourne Art Fair, Johnson and Ussher contacted the non-Indigenous manager of Ernabella Arts, an Aboriginal-owned art centre in Ernabella, and John Dallwitz, the non-Indigenous coordinator of the Ara Irititja project. Footnote 40 During the process of seeking permission for the appropriation of David Moore’s photograph, both artists were informed about the necessity to gain consent from each Aboriginal person depicted or their relatives. They also learned about the possibility that their drawing infringed on the copyright of David Moore, who, after his death in 2003, had placed strict constraints on the reproduction of his images. Due to the complexity and time-consuming nature of the required authorization processes, it was eventually decided to conceal the offending drawing and the accompanying catalogues.
The Aftermath
The removal of The Only Thing You Taught Me Was the Only Thing You Know provoked discussion among Australian artists and art professionals regarding non-Indigenous use of historical materials depicting Aboriginal Australians. Footnote 41 Art magazine Eyeline published a forum in which Indigenous and non-Indigenous art professionals voiced their views. Non-Indigenous arts writer Justin Clements commented against the removal: “When art gets it right, expect the agents of the law to appear, wearing the concerned faces of good people indecently assaulted. Expect a battery of experts spouting their respect for protocols, and the disappearance of art.” Footnote 42 Alternatively, Bell stated as part of this forum: “An ignorance that is all consuming and all pervasive shrouds the nation. Fuelled by racist stereotyping and demeaning symbolism, that ignorance morphs into Australian racism or ‘Austracism.’” Footnote 43 These two views illustrate how cultural protocols polarize. Following protocols can be viewed as art censorship while ignoring them can be seen as racism and cultural appropriation.
Significantly, artist Christian Thompson and the Pitjantjatjara descendants of the children depicted in the offending photograph were absent from this published debate. In an interview, Thompson explained that he refrained from contributing as he wanted to move on from what he described as a very stressful and upsetting incident. Footnote 44 The sole reference to Pitjantjatjara people who had cultural connections to the image used by Johnson and Ussher constituted a quote by the non-Indigenous coordinator of Ernabella Arts, who stated that cultural protocols require permission to be sought from the descendants of each of the depicted children before using the photograph. Footnote 45
CASE STUDY 2
The Object
In 2006, artist r e a was invited to produce a work in response to material from the archives of the Australian Broadcasting Corporation (ABC) and exhibit her art in a group show celebrating the institution’s fiftieth anniversary. This exhibition was held at the Campbelltown Arts Centre and Penrith Regional Gallery in New South Wales. R e a, who is of Gamilaraay/Wailwan Aboriginal descent, decided to create a video installation featuring 16 millimetre black-and-white film excerpts produced by politician William Grayden during his expedition to the Ngaanyatjarra region of Western Australia in the late 1950s. Footnote 46 The images, shot by Grayden during a time of national debate about the health and welfare of desert Aboriginal people living in and around the Warburton mission, show Yarnangu residents of the region suffering from hunger and disease. Footnote 47
Grayden’s depiction of Yarnangu misery, which he presented to audiences in his documentary Their Darkest Hour, has been long contested. Footnote 48 Upon its release in 1957, Their Darkest Hour shocked and enraged audiences. Yet, certain visitors to, and residents of, the Ngaanyatjarra Lands at that time claimed that the politician’s assessment of the Yarnangu condition was inaccurate and staged. Footnote 49
The Complaint
R e a used Grayden’s footage in her work, which is entitled Maang Why, to comment on the disastrous impacts of colonization on Australia’s First Peoples. In an interview with the first-named author, the artist compared the footage to watching images of the holocaust. Footnote 50 It just so happened that a group of Yarnangu artists from Warburton was also included in the Yours, Mine and Ours exhibition. Prior to their travel to Sydney for the exhibition opening, members of this group had requested to view the ABC’s archived Paul Robeson in Australia program. This program, which documents a visit to Australia in 1960 by the late American political activist Paul Robeson, contains excerpts of Grayden’s documentary. As explained by r e a, the ABC had pre-selected materials from its collection and presented those commissioned with a booklet detailing the archived items on which their work could be based. Footnote 51 As r e a recalls, this booklet comprised a reference to the Grayden footage. Footnote 52
Once in Sydney, the Yarnangu watched the Paul Robeson in Australia program and reportedly felt shocked. Footnote 53 Most of the visiting artists had never seen the Grayden footage before. In fact, it was not until 2008, as part of a re-documentation project of historical films and photographs conducted by Pamela McGrath, that Yarnangu in and around Warburton first had the opportunity to view Grayden’s representation of them and their ancestors. As documented by McGrath and David Brooks, Yarnangu perspectives about the materials in question differed markedly from those put forth by Grayden. Yarnangu expressed a pragmatic recognition of the hardships of life in the desert and, while showing compassion for the filmed individuals, challenged the politician’s portrayal of them as victims living an isolated and unviable desert existence. In addition, they voiced concern about the negative stereotypes potentially generated by Grayden’s portrayal. Footnote 54
Just days before the opening of Yours, Mine and Ours, r e a contacted the then non-Indigenous coordinator of the Warburton Arts Project, who accompanied the visitors from Warburton to Sydney, to inform her about the contents of Maang Why. According to r e a, the coordinator replied that Yarnangu had expressed concern about the presence of Graydon’s footage in the ABC archive and had requested that programs containing this footage be destroyed. In a subsequent conversation between the artist and this non-Indigenous coordinator, r e a was told that the visitors from Warburton were unhappy about her use of Graydon’s excerpts. Footnote 55
The Process of Removal
According to the curator of Yours, Mine and Ours at the Campbelltown Arts Centre, gallery staff had urged r e a to obtain permission to exhibit Maang Why from “the community” as soon as it became clear that she intended to utilize sensitive material. Footnote 56 When it transpired that the visiting Yarnangu objected to r e a’s use of Grayden’s footage, the Campbelltown Arts Centre approached Djon Mundine, a well-known and experienced senior Aboriginal curator and writer. Mundine, who was unconnected to Yarnangu and the Ngaanyatjarra Lands, was engaged to liaise with r e a and provide advice on cultural protocol. Footnote 57 Mundine discussed Yarnangu concerns about Maang Why with the non-Indigenous art coordinator from Warburton and eventually advised the gallery to uphold the principle of community consent. The Campbelltown Arts Centre decided to remove r e a’s work from display since, as the curator of Yours, Mine and Ours underlined, “the community” did not authorize the inclusion of Grayden’s footage in Maang Why. Footnote 58 Throughout this process, neither r e a, Mundine, nor the exhibition curator succeeded in meeting Yarnangu to discuss the reasons behind their objection to the artwork in question. Furthermore, as stated by r e a, the visitors from Warburton did not view Maang Why before the work’s removal. Footnote 59
The Aftermath
Four years after the incident, Mundine discussed the protocol transgression in Artlink, an Australian art magazine. He asserted that r e a, who remains unnamed, “refused to acknowledge the community’s opinion.” Mundine also argued that being Aboriginal does not entail a right to use all Indigenous cultural materials, due to the heterogeneity of Australia’s Indigenous peoples. He stated: “Although there is a pan-Aboriginal movement, there is no one Aboriginal society.” Footnote 60 To r e a, however, Grayden’s footage portrayed much more than the specific history of Yarnangu from the Western Desert. According to the artist, the material operates as a signifier for Australia’s imperial history. R e a has explained that to her, as an Aboriginal woman, this broader story of colonialism also represents the (hi)story of her community and family. Footnote 61
Following the protocol incident, r e a has related how the removal of her art made her feel disempowered and hurt. A long-term resident of Sydney, r e a stated:
I wanted to bring home the idea that this is our history. … What was most difficult was they were in my country dictating what should happen to my work. I would never go into their country and think I could have that power, yet they were given that power because they were seen as more Indigenous than I was by the white Australian gallery director, and that really bothered me. Footnote 62
In her commentary, r e a identifies the misguided conviction that urban-based Aboriginal Australians are less authentic than Indigenous people from remote parts of the country. Footnote 63 Her distress about the alleged disavowal of her Aboriginality should be understood against the background of the past exclusion of urban-based Indigenous Australians from Australia’s mainstream art scene, based on the assumption that authentic Aboriginal art is produced by “real” Aborigines who necessarily live an isolated existence out in the bush. Footnote 64 While the 1980s and 1990s saw city-based Aboriginal Australians gain access to and recognition within Australia’s visual art world, stereotypes about their Aboriginal identity still materialize in public debates. Footnote 65
DISCUSSION
What Is at Stake?
When allegations about artists’ non-compliance with Indigenous protocols are made, several things are at stake. First, there is the ability of both Indigenous and non-Indigenous artists to present a visual perspective on colonial relations and the enduring influence of Australia’s colonization on its Aboriginal peoples, without being censored. Footnote 66 Second, there is the capacity to control the unauthorized use of Indigenous cultural heritage and to protect Aboriginal Australians from (mis)representation by people with no cultural affiliation with the materials in question. Third, when conflicts about protocols erupt, the reputations of artists, curators, and directors of institutions may also be at stake. Footnote 67 Fourth and finally, recognition of one’s Aboriginality and of claims to authority over materials based on this Aboriginal identity constitutes an important stake to some individuals.
The case studies present two key findings regarding the stakes at play when protocol incidents occur. First, Indigenous and non-Indigenous artists and curators by no means comprise discrete, ethnically defined groups that are divided by their position on artistic engagements with Aboriginal cultural heritage and the application of cultural protocols. Those involved in resolving protocol conflicts—people who articulate the stake that Indigenous community members have in exerting authority over particular cultural materials—are both Indigenous and non-Indigenous. Artists who experience the removal of their art from display may also identify similar stakes, regardless of their ethnicity. Indigenous artist r e a and non-Indigenous artists Michelle Ussher and Helen Johnson have all asserted the necessity of working with uncomfortable, historical imagery of Aboriginal Australians. Ussher has suggested that contemporary engagements with racist images can “be part of taking responsibility for a history and a present that is shared by Indigenous and non-Indigenous people.” Footnote 68 According to this artist, the censorship of her co-created work caused this opportunity to be lost.
Second, while Aboriginal and non-Aboriginal people may profess to the same stakes, differences do exist between how artists and curators of Aboriginal and non-Aboriginal heritage are invested in the use of Indigenous cultural heritage and how they experience the repercussions of protocol conflicts. For example, Johnson and Ussher have both proclaimed the importance of working with old depictions of Indigenous Australians to address stereotypes about Aboriginal people and raise “uncomfortable questions” about non-Indigenous involvement in the creation and perpetuation of problematic images. Footnote 69 Yet, neither artist has explained her connection to Moore’s photograph and to the colonial history referenced by this image in personal terms. Ussher’s and Johnson’s statements about the protocol incident do not communicate any sense that this is their history and their story. Furthermore, although publications about the Melbourne Art Fair conflict attest to the emotional impact of the protocol conflict on Johnson and Ussher—Clements described the appearance of a teary artist at the time of the breach Footnote 70 —no evidence exists that the removal of the offending artwork affected the artists’ sense of self.
R e a, on the other hand, strongly identifies with Grayden’s documentary and frames his footage as an illustration of the violence and dispossession also experienced by her own community. To r e a, the removal of Maang Why serves to deny her personal connection to aspects of Australia’s colonial history. Moreover, the process of resolution caused r e a to feel as if her Aboriginal identity was being disavowed. In an interview with the first-named author, the artist explained how the protocol conflict caused her confidence to diminish and left her feeling invisible. Footnote 71
Although the intended audience for the type of cultural protocols discussed here principally consists of non-Indigenous people, the case studies demonstrate that protocols are also evoked to govern Indigenous artists’ practices. Should cultural protocols be used to constrict the creativity of Indigenous people? Indigenous Australian curators Mundine and Croft have answered this question in the affirmative. Footnote 72 In the Australia Council’s protocol guide for media arts, Croft clearly states that “cultural sensitivity applies to Indigenous artists as well.” Footnote 73 Significantly, the act of subjecting Indigenous artists to the same cultural protocols as non-Indigenous artists does have ramifications for how we conceive protocols. While cultural protocols may be framed as inherently good, Indigenous people can also experience the disadvantages of their existence. Indeed, the use of cultural protocols can leave some Indigenous people feeling disempowered rather than protected.
Protocols and Equivocality: Matters of Consultation and Consent
Indigenous protocols ideally provide guidelines for culturally appropriate behaviour. According to Jane Anderson and Younging: “Protocols prescribe modes of conduct through emphasizing or normalizing particular forms of cultural engagement. The presumption is that we read a protocol, we take on the advice, and we act accordingly.” Footnote 74 In reality, however, protocols do not automatically present people with “informed instructions about direction and action.” Footnote 75 A consideration of the much debated principles of consultation and consent, used to determine protocol breaches in the case studies, exemplifies this ambivalence. In the United States, the publication of the report on protocols for Native American archival materials prompted critics to argue that it can be difficult or even impossible to establish who needs to be consulted about the use, display, or interpretation of Native American cultural heritage. Footnote 76 Detractors also argued that viewpoints within Native American communities about rights to, and responsibilities for, cultural heritage items may differ, thus making it difficult to obtain consent. Footnote 77 Stephen Gray, writing about alleged protocol breaches by writers and filmmakers in Australia, has said: “The protocols are not always entirely clear on such issues as who must be consulted, and whether consultation includes a right of veto or control over content.” Footnote 78
Our case studies confirm that uncertainty exists around what consultation entails and when consultation is required, if adherence with Indigenous protocols is the aim. Although documents regarding Australian protocols invariably mention consultation and consent, they frequently lack specificity regarding the application of these principles. For example, Valuing Art, Respecting Culture, which is the protocol document used by NAVA, emphasizes the importance of consultation and the requirement of consent with respect to “any activity involving another cultural group” and “a course of action which might affect an Indigenous community or group.” Footnote 79 In the case of r e a’s work Maang Why, it is evident that her use of Grayden’s imagery involved a different cultural group and the affected members of this group. However, as we will later discuss, Johnson and Ussher’s The Only Thing You Taught Me Was the Only Thing You Know ostensibly had little effect on the Pitjantjatjara residents of Ernabella. The protocols guide for the visual arts developed by the Australia Council suggests that “[i]f you plan to depict an identifiable individual or community, first ask the individual, community or relatives of the person for permission. Observe close consultation and consent throughout the process.” Footnote 80 Based on this principle, r e a’s artwork constituted a breach of cultural protocol. In other cases, however, the notion of infringement is less clear.
The written protocols that operate in Australia’s contemporary art world have been developed by selected Indigenous and non-Indigenous experts. To compensate for a lack of input by the majority of Indigenous Australians and account for the heterogeneity of Indigenous societies, published protocols commonly employ open-ended phrasing. Yet, the generic language used in protocol documents and flagged by critics is not exclusively responsible for the ambiguity surrounding Indigenous protocols. The fact that contemporary artists continuously attempt to work with Indigenous cultural heritage in novel ways also complicates straightforward use of protocol principles. Situations without precedent, such as the drawing made by Johnson and Ussher based on a collage containing Moore’s photograph of Pitjantjatjara children, have caused artists and art professionals to feel unsure about the correct principles to be observed. With respect to the removal of her drawing, Ussher explained:
This experience of self-censorship raises important issues. It is not a question of copyright because our use of Moore’s image was simply a point of departure for an artistic intervention. Nor is it a question of recycling an image which might have caused offense to Aboriginal people associated with those represented; the artwork did not represent any actual or recognizable Indigenous people. … It is no wonder that, in different ways, both Helen and I felt confused about how to appropriately use images of Indigenous people. Footnote 81
Furthermore, differences in opinion about what it means to properly observe protocols engender equivocality. For example, within Australia’s contemporary art world, some Indigenous Australians believe that artists should principally work with cultural heritage items relating to their own people. Footnote 82 Others oppose the use of particular cultural materials in contemporary art, such as old photographs depicting deceased Aboriginal Australians, full stop. Footnote 83 R e a does not subscribe to the conviction that historical images cannot be appropriated or that artists cannot incorporate materials into contemporary artworks unless they are derived from their own cultural heritage. R e a has explained her understanding of following cultural protocols by saying:
I will very rarely use images from archival material unless I can consult family and unless the work has already been reproduced by non-Indigenous people and it is about historical events. Not taking people’s culture or repositioning people’s culture, identity, spirituality, language, the ceremonial, the secret-sacred protocol. Footnote 84
The artist argues that in the case of the Yours, Mine and Ours exhibition she did observe cultural protocols, as she had asked the non-Indigenous coordinator of the Warburton Arts Project to inform the Warburton artists about her use of Grayden’s footage before putting Maang Why on display. According to r e a, the fact that the excerpts comprised no secret/sacred content meant that she did not require permission from Yarnangu for their use. R e a also claimed that the Campbelltown Arts Centre had prepared “appropriate signage” to warn Indigenous and non-Indigenous visitors to the exhibition about viewing sensitive materials. Footnote 85
Thus, Aboriginal Australians have maintained principles regarding Indigenous rights and responsibilities to forms of cultural heritage separate from, and, sometimes, as in r e a’s case, in contradiction to, published cultural protocols. Considering the diversity encountered within and between Indigenous Australian societies and the general nature of most facets of written protocols, it comes as no surprise that such alternative sets of standards prevail. However, their occurrence can exacerbate uncertainty about compliance with Indigenous cultural protocols.
Process of Resolution
Written protocols are not legally binding, but as Stephen Gray observes, “[t]hey are expressed in mandatory language. They appear to reflect the requirements of indigenous [sic] laws and customs, even where such laws and customs are not recognized by the Australian legal system.” Footnote 86 According to the literature, protocols work because of people’s “self-governing capacity” Footnote 87 and because institutions such as museums, libraries, professional societies, and funding bodies demand compliance from their staff, members, and clients. Footnote 88 Scholars have also suggested that individuals are motivated to follow cultural protocols because they do not wish to be, or be seen as being, disrespectful to Aboriginal people and because they do not want to lose grants or future access to funding due to non-compliance. Footnote 89 Our case studies nonetheless demonstrate that protocol incidents are not necessarily prevented because institutions enforce compliance and people attempt to avoid potential social and economic repercussions of a breach. They exemplify two requirements that need to be met in order to prevent and resolve protocol incidents: first, the awareness of the cultural protocols and acceptance of their principles and, second, the authority to enforce protocols.
Awareness and Acceptance
While awareness of Indigenous protocols in Australia’s contemporary art world is sometimes taken for granted, Footnote 90 the evidence demonstrates that both individuals and institutions can be oblivious to matters of cultural protocol. Footnote 91 In the case of the Melbourne Art Fair, Johnson and Ussher never realized that their artwork breached Indigenous cultural protocols until Thompson complained. Following the incident, Johnson confessed to not knowing about the protocol documents published by the Australia Council and NAVA. Footnote 92 Yet Johnson’s breach of cultural protocol did cause the artist to change her attitude to the use of Indigenous cultural materials within contemporary art. Johnson has remarked: “If there were ever a time that I wished to exhibit this work again, I would not do so without proper consultation and the attainment of all necessary permissions.” Footnote 93
In the case of the Yours, Mine and Ours exhibition, the ABC appeared oblivious to protocol concerns raised by Grayden’s material. After obtaining permission from copyright owner Grayden, Footnote 94 this institution provided r e a with the footage and abstained from enforcing any Indigenous protocols. Museums Australia’s protocol document, Continuous Cultures, Ongoing Responsibilities, contains clear directions about the responsibility of holding and collecting institutions, stating that institutions “need to consider and advocate for the needs of Aboriginal and Torres Strait Islander communities with regard to access to documents concerning them where other access conditions also apply.” Footnote 95 Evidence suggests that the ABC did not communicate nor develop any relationship with the Indigenous source community regarding its holdings of the Grayden materials prior to the Yours, Mine and Ours exhibition. Moreover, the ABC failed to protect r e a in her use of those materials by facilitating consultations with Yarnangu before, during, and after the creation of Maang Why. Footnote 96
R e a, who became aware of the objections to her use of Grayden’s excerpts before the exhibition opening, withstood pressure to censor Maang Why because she believed that her actions were in accordance with cultural protocols. Thus, while protocols can work “through the self-governing capacity of individuals,” compliance without incident relies on the users of Indigenous cultural heritage accepting the necessity of behaving in ways that are prescribed by members of the Indigenous community who have cultural claims to such heritage or by people acting on their behalf. Footnote 97
Authority to Object and Enforce
Since protocol documents emphasize the rights of Indigenous people to own and control their cultural heritage, one would assume that authority to protest against transgressions is vested in those communities or individuals whose cultural materials are being used. Yarnangu who objected to Maang Why had both cultural and social connections to Grayden’s footage. However, in the case of the Melbourne Art Fair, it was Thompson who, as an Indigenous “outsider,” objected to the disregard of protocol. Thompson, who did not have to prove his “right to make a claim,” was empowered by cultural protocols to take a stance against Ussher and Johnson’s work. Thompson’s authority to protest against artworks that contravene protocols has even been endorsed by artist Johnson. Following the removal of her drawing, she stated: “If an Indigenous person looks at that image and finds it offensive, I respect that.” Footnote 98 Artist Ussher observed: “Any Indigenous person had the right to object to our work.” Footnote 99 The withdrawal of the artwork from the fair demonstrates that, within Australia’s contemporary art world, protocol transgressions do not necessarily need to be identified by the Indigenous people whose material it concerns.
The cases discussed thus exemplify the enactment of two forms of cultural protocols. They also suggest two forms of empowerment. Thompson, as the cultural “outsider,” and Yarnangu from Warburton, who maintain enduring connections to Grayden’s footage, both received recognition of their authority to object. However, as we explain below, the extent of Yarnangu’s empowerment through cultural protocols must be questioned. It is one thing to object to the exhibition of an artwork, but it is another thing entirely to have a complaint enforced. Both cases demonstrate that the enforcement of sanctions in response to protocol transgressions occurs in an informal manner. With no opportunity to file a complaint to a national protocol authority and without legal recourse, Yarnangu from Warburton and Thompson had to rely on their own ability to change the status quo. Ngaanyatjarra leader L. West produced a commanding statement about Grayden’s archival footage, which subsequently became part of the Yours, Mine and Ours exhibition. He asserted:
Those people getting filmed, they didn’t know what that little box was. Kurnta, it’s shaming to be seen like that. Don’t show that film (in Sydney). It’ll be like discrimination. … Put that film away. Put it away, for history. … It is not for someone else to show the way we are or control how we are seen. Footnote 100
As evidenced by Mundine’s advice to the Campbelltown Arts Centre, the ownership over the imagery employed by r e a of Yarnangu, made the complaint a powerful one and ultimately resulted in Maang Why’s censorship. Thompson, as someone unrelated to the Pitjantjatjara children photographed by Moore, ensured his complaint got traction by invoking protocol documents and mobilizing his social capital. Thompson contacted Indigenous and non-Indigenous art professionals in positions of power and drew on relationships with highly regarded Australians such as Croft and Bell, thereby underlining how informal networks play a pivotal role in achieving enforcement.
WHOSE VOICE?
Kathy Bowrey writes that “protocols are a meaningful mechanism enabling the expression of community autonomy,” Footnote 101 while Morphy contends that protocols represent “an acknowledgment of people’s rights and authority over their own domain.” Footnote 102 We will take another look at the identification and resolution of the protocol incidents prompted by Maang Why and The Only Thing You Taught Me Was the Only Thing You Know with a focus on understanding whose authority is being acknowledged and whose protocols are being observed. Let us first briefly return to Australia’s published protocols and their emphasis on community authority. NAVA mentions community consultation regarding the appropriation of existing imagery or artworks in the following terms: “[I]f the inclusion of Indigenous designs in a project or publication is desired, using existing art works or designs, the use must be negotiated with the artist or community involved.” Footnote 103 The Australia Council’s protocol guides state:
There may be requirements to consult with the traditional custodians and community members, as well as the artist, for material that is communally owned ritual knowledge. … There may also be one or more groups that have custodianship of an image or other heritage items. Footnote 104
Although such guidelines leave room for interpretation, protocol documents suggest a role for Indigenous communities in the protection of their cultural heritage. Yet, the reality is different.
It appears that the Campbelltown Arts Centre enlisted Mundine to verify the accuracy of claims regarding r e a’s protocol transgression, seeing that Yarnangu’s objections were communicated by the non-Indigenous coordinator of the Warburton Arts Project. Arguably, Mundine’s recruitment also constituted a preventive measure. This outspoken and experienced Aboriginal curator was and is well placed to rebut any critiques of the arts centre and its handling of the protocol incident. Yarnangu derived authority from the existence and recognition of cultural protocols, yet their ability to exercise this authority depended, at least in part, on mediation by a renowned Aboriginal member of Australia’s contemporary art scene. We also know that neither Mundine nor the exhibition’s curator consulted directly with Yarnangu about their reasons for objecting to Maang Why. This raises the question: whose protocol principles were being upheld? Did Yarnangu corroborate the interpretations of consultation and consent articulated by Mundine and the show’s non-Indigenous curator? What rules exist in Yarnangu society around access to, and display of, historical footage such as that used by r e a? When it came to Maang Why’s censorship, the viewpoints about protocol directly communicated to r e a comprised those belonging to Mundine, the Campbelltown Art Centre’s curator, and the non-Indigenous coordinator of the Warburton Arts Project. The Yarnangu community remained disturbingly absent.
In the case of the Melbourne Art Fair, Thompson spoke up to protect supposedly disempowered Indigenous Australians from a protocol breach by non-Aboriginal artists. While laudable, there is no evidence that his complaint enhanced the affected community’s control over the contested cultural materials. In fact, it is highly likely that Ernabella’s Pitjantjatjara residents had no knowledge of the conflict that erupted approximately 2,000 kilometres away over the unauthorized use of their depictions. When the then coordinator of the Ernabella Art Centre was contacted by artist Johnson, she consulted with the art centre’s previous manager and then referred the query on to John Dallwitz, the non-Indigenous coordinator of the Ara Irititja project. It appears that neither coordinator showed Pitjantjatjara people either Moore’s original image or the artwork in question. Pitjantjatjara contributors were also absent from the forum that was later organized by art magazine Eyeline.
Thus, artists and art professionals affected by Thompson’s complaint gained no insight from Pitjantjatjara understandings of Moore’s photograph or Pitjantjatjara perspectives about the relation between Johnson and Ussher’s drawing and protocol principles. As Jennifer Deger has shown with regard to the Yolngu in Northern Australia, local beliefs about, and approaches to, photo-based materials, such as the use of images of the deceased, are dynamic, diverse, and may not, or no longer, reflect stipulations in protocol documents. Footnote 105 In the case of the Melbourne Art Fair, such local interpretations of what an image means and does were overlooked. The protocol principles used to remove the offending artwork from display encompassed those propagated by the Australia Council and NAVA. Furthermore, they included convictions about protocol maintained by prominent Aboriginal members of the contemporary art world and interpretations communicated by non-Indigenous people working with Pitjantjatjara people. Pitjantjatjara community remained quiet.
CONCLUSION
Cultural protocols are meant to protect Indigenous peoples from outsiders abusing their material culture. They constitute a non-judicial alternative to the inadequate legal protection of Indigenous cultural heritage. The acceptance of a “correct” way of using and displaying Aboriginal cultural materials opens the door for rectifying transgressions. Through codified protocols, the power to correct transgressions is given to Aboriginal people to speak up, point out, and have offending works removed. In this article, we have shown that protocols have practical utility. Allegations of breaches increase awareness about problems concerning the use of Indigenous cultural heritage among non-Indigenous people and institutions. Protocol conflicts change how some people engage with, and create access to, Indigenous people and their cultures. Our case studies demonstrate that when protocols are evoked and enforced the artists’ use of Indigenous cultural materials is effectively prevented. Thus, cultural protocols, at least those principally developed to mediate cross-cultural engagements, represent a conduit for correcting the misappropriation of Indigenous cultural heritage by outsiders.
However, there are several aspects to note with respect to Australia’s cultural protocols that point to a disjunction between codified ideals and a messy reality. Australia has been at the forefront of developing Indigenous protocols and functions as a point of reference for some Indigenous leaders involved in discussions around protocols internationally. Therefore, it is important to share challenges that emerge from the application of protocols in Australia’s art context.
Written protocols can be powerful as they are often the foundation upon which grant applications are accepted, based on artists’ successful demonstration of their understanding of how the engagement with Indigenous people and their cultural materials should be conducted. Published protocols also give legitimacy to accusations about transgressions articulated by people without a cultural connection to allegedly misappropriated forms of Indigenous heritage. Documents such as those produced by NAVA and the Australia Council of the Arts serve to provide a broad definition of cultural consultation and the appropriate use of cultural materials. These documents share the same general language, and although NAVA’s published protocols give a range of case studies and examples from specific cultural/language groups, written protocols serve as guidelines only, thereby remaining open to interpretation.
This constrains the amount of guidance contemporary artists can derive from written protocols. Clearly, uncertainty continues to exist about the how, when, and what with respect to the requirements of consultation and consent. Ambiguity regarding compliance with protocols results not merely from the documents’ use of general language but also from the diverse interpretations of cultural protocols by Indigenous artists, curators, and other art professionals. The fact that contemporary artists continually create artworks that incorporate Indigenous materials in innovative ways adds to the uncertainty. The equivocality surrounding protocol principles, especially guidelines around consent and consultation, presents a challenge to artists. In addition, it opens up a space for both Indigenous and non-Indigenous people to impose their understanding of what must be done to realize compliance.
Protocols rely on institutions and the “self-governing capacity” of individuals to work. Footnote 106 However, transgressions cannot be averted and resolved unless people are knowledgeable about the contents of cultural protocols and accept the principles evoked to prevent the use and abuse of Indigenous heritage. Cultural protocols are usually framed as being inherently good as they strive to empower marginalized Indigenous peoples. Yet, as we have demonstrated, protocols do not automatically protect or empower all Indigenous individuals. Protocol conflicts reveal that the stakes regarding the contested use of Indigenous cultural materials are high and that Indigenous artists, while professing to stakes also important to non-Indigenous art practitioners, are invested in the use of these materials in uniquely personal and emotional ways. It is important to realize that although protocols are mostly developed with a non-Indigenous audience in mind, they also, in reality, govern the art practices of Indigenous artists. When protocols are evoked against Indigenous artists, the result can be loss of confidence, loss of self-identity, and, ultimately, the silencing of a non-compliant Aboriginal voice.
Finally, although cultural protocols aim to return control to Indigenous people, thereby enhancing Indigenous people’s authority over their own domain, our article has shown the limitations of this objective. Despite the overwhelming emphasis in these two cases by various Australian institutions and their written protocols to consult with Aboriginal communities, no community members—no matter how they are defined—were actually consulted. Although Indigenous and non-Indigenous art professionals alluded to the right of the Indigenous communities concerned to determine such conflicts, Pitjantjatjara and Yarnangu had no clear, unmediated voice in the process of resolution. Their understandings of cultural protocols remained unstated. Instead, the principles enforced were of a more generic kind and derived from written documents and understandings of protocols articulated by outsiders. While the principles applied in these cases might accord with Pitjantjatjara and Yarnangu beliefs, we cannot be sure that they do. Rhetoric notwithstanding, cultural protocols, thus, are not necessarily the “meaningful mechanisms,” enabling the “expression of community autonomy,” they are made out to be. Footnote 107
