Jo-Anne Fiske and Betty Patrick. Cis Dideen Kat, When the Plumes Rise: The Way of the Lake Babine Nation. Vancouver: UBC Press, 2000.
Review by Brian Thom, McGill University
Cis Dideen Kat is an important new book on indigenous customary
law. It is a highly dynamic and engaging
study that looks at customary law of Lake Babine First Nation who live in the
central-northern region of British Columbia.
At the core of the study is an investigation of the balhats – or
potlatch – and how the cultural practices around the balhats form the
basis of Lake Babine customary law.
Throughout the book the authors link the issues surrounding tradition, balhats
and customary law to contemporary issues, making this an excellent book for
those interested in understanding how tradition can inform contemporary
justice, land claims and self-government issues.
The first two chapters describe the social
and political context of this study in a contemporary First Nations community
and the methodological and theoretical issues that arise in a study of
customary law principles. The authors
describe customary law as “a continuously unfolding body of principles” (p. 18)
based on fluid processes of meaningful action.
As such, they are careful not to create an artificially definitive set
of customary laws based on their findings.
From a ‘traditional’ point-of-view, traditional stories of the Elders
are the law. The meanings and
interpretations of customary law have changed with the pressures of
colonialism, and are now fairly heterogeneously conceived of within the
present-day community. Throughout the
study, the authors are attentive to these different visions of customary law
held by community members intersects with those held by the state.
Chapter two provides a discussion of Lake
Babine social organization which forms the foundation for the analysis of the
basic legal principles that the balhats govern. In chapter three the authors discuss changing
local land tenure and governance practices through the voices of Elders who
have observed a transformation from an orderly community 30 years ago when it
was more ‘traditional’, and when hereditary clan chiefs managed the land and
resource locations. Today, social
problems in rural Babine communities are often said to stem from being too
remote to receive good services, while those located in or near towns have
problems which community members describe as originating in the loss of
traditional lands and resources, and the false solace of readily available
alcohol and drugs. The authors argue
that a part of the explanation for these problems lies in the shifting social
roll of hereditary balhats names.
These names, or titles, create responsibilities under the protocol of
traditional laws. Today few adults (n
= 93 out of 700 adults & 1300 young people) hold these names. Without having to follow the responsibilities
required of named people by balhats law, it is difficult for customary
laws to maintain their social force.
Chapter four and five give a nuanced,
careful description of potlatch events and their contemporary and historic
significance. It is a welcome and
refreshingly alive addition to the already massive literature on the potlatch,
offering new insights into the relevance of this potlatch ‘tradition’ in
contemporary political and social settings.
The authors review funeral balhats, memorial balhats,
name-taking balhats, female rites of passage balhats,
clan-transfer balhats, shaming balhats, and dispute settlement balhats,
in order to make specific observations about the ways in which customary law is
given social force. They do this by
moving from historic texts (taken critically) to contemporary interviews with
community members, carefully documenting continuities and changes in practice
and meaning. Throughout this discussion
several examples are provided of how potlatch laws conflict with Canadian law. An example of this is funeral balhats. Provincial laws do not recognize the mourning
periods required before trap lines can be inherited, creating conflicts for
Babine who uphold the customary laws.
Despite the difficulties, the authors demonstrate how the balhats
system continues to be viable in ways consistent with the social practices
observed by early writers in the 19th century.
Chapter six refines the discussion of
Babine traditional law by drawing parallels between the principles that emerge
from the balhats and those found in the contemporary legal and justice
system. Balhats laws are the
legal basis for succession and inheritance, territorial laws and resource
management, family law (including marriage, divorce and mourning), dispute
settlement, village governance, special rules of conduct for women and
principles of justice taught to children.
The authors recognized that it would not be possible in a book such as
this one to codify all the customary laws, but they do provide a solid
methodology to begin to codify customary law through the study of potlatch
principles. Principles of customary law
recognized in the balhats continue to provide community leaders a way to
manage lands and resolve disputes. In
areas such as rules of women’s conduct, however, dramatic social changes have
made these laws difficult to follow today.
Chapter seven outlines how imposed colonial
legal orders, such as the Hudson Bay company, the Durieu system, the laws
introduced by magistrates and Indian Agents, and contemporary legal pluralism
have provided conflicts and challenges to the traditional system of customary
laws. Today, the authors argue, the
community operates under a kind of ‘plural legalism’ where different forms and
visions of the customary laws provide a multitude of strategies from which
people can think about the legal issues encountered in their lives. The authors give life to this abstraction of
Babine legal life through descriptions of traditional and non-traditional laws
to legitimate claims over disputed land.
Their discussion of how plural legalism can create very different
solutions to the current problem of overlapping claims in the BC Treaty Process
powerfully highlights this discussion.
Contemporary justice issues are the topic
of chapter eight, particularly problems of sexual and substance abuse, family
violence, vandalism and conflicts with the dominant legal system. The authors pay particular attention to
understanding the different strategies of articulating and striving for justice
provided by women and men, and the kinds of justice solutions that these
community members have suggested in improving education, health, resource
allocation, and community relations. The
book concludes with a look outward from the highly specific discussion of Lake
Babine balhats to the analogous legal principles that could be
articulated from potlatches and narratives in neighbouring Northwest Coast and
Athapascan societies.
This is a book that would be well situated in upper undergraduate level courses on Contemporary Native Issues or Traditional First Nations Culture. The frequent framing of the material into a larger theoretical and scholarly context makes this an important study on the dynamic interplay of a traditional legal system with contemporary justice issues. The book is well informed by current post-colonial scholarship, making it theoretically engaging, while richly locally situated.
It would also serve as excellent material for those in Government or the Civil Service who are trying to grapple with how traditional laws can be envisioned. Given the importance of these laws in forming part of the basis of such constitutionally protected principles as Aboriginal title and rights, the book is a guide to how traditional laws can be conceived and written about, and the kind of careful understanding of history and contemporary community life that is needed to characterize such legal principles. Too often in the past these laws have been characterized in simplistic or a-historical terms. Fiske and Patrick’s work brings the lived experience of these customary laws together with history and a well grounded theoretical position about the importance of power relations in understanding something as complex as traditional laws in contemporary First Nations society.