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.