Tribal Boundaries in the Nass Watershed. Neil J. Sterritt, Susan Marsden, Robert Galois, Peter R. Grant and Richard Overstall, UBC Press, Vancouver 1998. 332 pages.
Reviewed by Brian Thom, McGill University
In British Columbia, like in
Québec, it has not been until very recently that treaties have been entered
into with First Nations. The questions
of who has title to the land, what the nature and extent of that title is, and
how neighbouring nations may share or have exclusive title are all outstanding. The map of First Nations involved in the
process is impressive in its complexity. Currently, there are 51 self-defining
First Nations engaged in Treaty Negotiations with the Federal and Provincial
Government in the BC Treaty Process.
Some of these Nations are individual Indian Act Bands, while others are
Tribal Councils and umbrella treaty organizations who are negotiating for
several First Nations communities.
The map of claimed territories is not a neat set of discrete lines
like those of standard ethnographic area maps, but rather are circles with many
overlapping boundaries and areas of blank space silently representing the
communities who have chosen not to engage in the process at all. The central problem addressed by this book
is to resolve one set of these overlapping claims, between the Gitksan,
Gitanyow and Nisga’a Nations.
Written by the researchers who prepared the bulk of the testimony on
behalf of the Gitksan First Nation for their Delgamuukw case, this book
challenges the massively overlapping claim of their neighbours the Nisga’a.
The
contemporary political context that this book was written in is important to
review. The Nisga’a
Nation is the first community to finalize their treaty negotiations with the
federal and provincial governments, and will have their treaty ratified by
Parliament later this year. They have
claimed their traditional territory in the watershed of the Nass river in
Northwestern BC, and in their treaty have made an arrangement for
self-government over many of the resources within this watershed. Of the other First Nations for whom this
treaty will be significant, there may be none more directly concerned than
their neighbours the Gitksan and Gitanyow.
The Gitksan, like the Nisga’a have united politically to put
forward their claims for title land and aboriginal rights. The Gitanyow, who culturally and
linguistically share Gitksan heritage, are a small independent political
organization with their own claim in the BC Treaty Process. The Nisga’a claim poses a major
problem for the Gitksan and Gitanyow as their traditional territories and
communities are also in the watershed of the Nass River. As the Nisga’a treaty is to be the
‘full and final settlement’ of Aboriginal title in those areas, the Gitanyow
and Gitksan risk being alienated from the lands they claim forever.
This book is a direct
challenge to the territories claimed by the Nisga’a, in defence of the
‘tribal boundaries’ of the Gitksan and Gitanyow as recorded in their oral
histories. The book was written by the
researchers who prepared the Delgamuukw case. In presenting oral
histories as the common law foundation for title to land, it draws on the
important legal precedents established by the Supreme Court of Canada’s
landmark 1997 Delgamuukw decision which clarified the nature of
Aboriginal ownership of land and how such ownership might be proved
using oral histories in proving.
The authors do not try to make
the old anti-colonial arguments about how their land has been stolen by the
State, or that the State has not looked after their interests in settling with
the Nisga’a. Sterrett et al
have instead argued that the Nisga’a have made a major breach of
indigenous law in making such a large claim over territory that they should
know well is not theirs. This indigenous
law, which arises from the continuing tradition of recalling histories of land
ownership (adaawk), marking household ownership of land on totem
poles, and validating the land tenure at potlatch feasts (yukw)
witnessed by everyone concerned, is the same law that was recognized by the
Supreme Court in Delgamuukw as being valid and absorbed into Canadian
common law. The book is an upfront
challenge to the Nisga’a claim, with comprehensive evidence from oral
traditions about land ownership (adaawk) forming the core of the
argument. The adaawk are
backed up by a detailed review of the written and cartographic record for land
ownership and tribal boundaries on the Nass River. Thus, this becomes an extremely important
text in suggesting precisely how oral histories might be presented to say
something concrete about aboriginal title and rights in the post-Delgamuukw
era in Canada. With the publication
of this book, future scholars working in other First Nations communities
where Aboriginal title and rights are an issue now have a formidable
standard of scholarship to strive for in laying out First Nation’s common law
principles.
In evaluating this text, it is
important to consider how land tenure is being theorized. The Gitksan-Gitanyow / Nisga’a
law is presented as holding that the existence of an adaawk
proves ownership to the specific lands named in the story. Toponomy is critical in telling adaawk
to connect mythological stories to specific, owned areas on the ground. Potlatch feasts (yukw) are held to
formalize the recognition of these ownership rights and to allow them to be
contested. In the book, the adaawk
are presented as forming unambiguous statements of ownership of land from
post-glacial times when the ancestors of the present-day clans, households and
villages settled the unoccupied territories, followed by three periods of
movements and wars which resulted in the present-day structure of land
ownership. New territories could be
claimed in one of two ways. First,
lands that were seen as abandoned during the migration were thrown open for
new ownership. Otherwise, lands
could be ceded to another tribe as retribution for lost wars or as
compensation for services provided within a clan. Such a cession of land must be formally recognized
in a special land-cession ceremony (xsiisxw) given at a
potlatch. The transfer of land could not
occur without a widely recognized xsiisxw. Lands that were owned by a house required
permission to use (in principle), and were actively defended from
trespass from both unwelcome neighbours and unwelcome Europeans. Marriage alliances brought access to
land, but not title. Though the
authors often probematically frame these as being broadly ‘indigenous law’
or ‘Northwest Coast law’, they are drawn from local traditions and are well
supported by the ethnographic record for the Gitksan-Gitanyow / Nisga’a. Numerous excellent maps show the territories,
boundaries and place names evidence being reviewed. The adaawk presented are taken
from a broad range of historical and contemporary recordings, demonstrating
continuity in both the content of the stories and their context in being
statements of land ownership. Sterritt et
al have demonstrated nicely that they are not ‘inventing Indians’.
In assessing their adaawk,
the authors have done a remarkable job of working through a very large, diverse
body of these stories, from old anthropological texts to court transcripts to
researchers field-notes, pulling out concise statements about land ownership
and boundaries. Where there are seeming
inconsistencies, the authors provide amble historical and ethnographic context
to understand their place within the indigenous system of land tenure. The authors further support the position
of the Gitksan-Gitanyow by presenting records of historic statements about
their respective boundaries that had been made by Gitanyow, Gitksan and Nisga’a
people to European and Canadian colonial authorities in their long-standing
efforts to maintain ownership and control of their lands. In a series of remarkable early 20th
century maps which were produced by Gitksan people, the boundaries claimed in
the adaawk are made concrete on the terms of the colonizers,
outside the context of the potlatch feast.
Other important records include some of the testimony presented by
Gitksan Elders at the Delgamuukw trial.
For this contemporary evidence, genealogical links to the people who
taught them the histories is carefully noted in a kind of cultural footnoting
which establishes their authority.
The authors’
careful consideration of this wide range of evidence shows that early
statements made by Nisga’a people do not disagree with those made by
historic and contemporary Gitanyow and Gitksan, including
the evidence presented by the Nisga’a in the important Calder
land claims case of the early 1970s.
However, the recent claims made by the Nisga’a Tribal Council
have increased twice since 1979 to their current overlapping status of the
entire Nass watershed. The authors then
suggest that the conundrum of the overlapping claim may have arisen because the
Nisga’a (1) based their current treaty claim on the ambiguous wording of
a 1913 Nisga’a petition; (2) mistakenly argued that a few Gitanyow family heads
brought their title to the land with them when they settled in Nisga’a
villages in the early 20th century; and (3) failed to recognize the
land given to the Gitanyow in a 1861 xsiisxw (war reparation) by their
mutual neighbours the Tsetaut.
In making these arguments
outside the context of a potlatch the Gitksan scholars have given a serious
consideration of the foundations and content of aboriginal common law. The publishing of the adaawk in
a peer-reviewed academic press is in keeping with potlatch tradition which
requires witnesses (readers) to claims being made and authorities (reviewers)
to validate or challenge the claims. In
reality, however, an academic publication is no potlatch. Unlike orally recalling adaawk
at a potlatch feast, no one is able to stand up in the text and contradict what
is being written. Also not considered
are the implications of codifying aboriginal as ‘law’. For instance, it was strongly stated that land
ownership could not be passed on at marriage, only rights to use land. This was stated as fact with little further
support or testimony to support it.
However, in seeming contradiction to this, the authors ceded to the Nisga’a
a small, plausible area of overlap (a berry-ground called wilbaxt’aahlgibuu)
which on the basis of intermarriage is not clearly the property of one group or
the other (p. 168). This leads me to
wonder further about how land tenure might be gendered and how this has been
silenced in this text (and largely overlooked in Northwest Coast scholarship).
We are left with the question
of to what degree does the Nisga’a treaty overlap with Gitksan and
Gitanyow lands. In terms of actual land
tenure, the Nisga’a Final Agreement lists only six small fee simple
allotments within the Gitanyow claim area, with the rest of the settlement land
falling outside Gitanyow and Gitksan territory.
However, the treaty affirms Nisga’a authority to manage wildlife
and fisheries quotas throughout the Nass watershed, which in principle may
dilute Gitksan/Gitanyow aspirations for self-government. Ultimately, the Gitksan and Gitanyow will
have to negotiate in a highly political forum to resolve these problems. This book is clearly one step towards
reaching a fair settlement for all. Of
wider significance is the contribution this book makes to understanding what
aboriginal common law based on oral traditions and customary practices might
look like when articulated in a contemporary, highly textual forum. This is an extremely important piece of
scholarship as a statement of aboriginal land tenure, as methodology in the use
of oral traditions, and as a political statement of contemporary First Nations
relationships to land. No one working on
or thinking about Aboriginal title and rights issues in Canada should overlook
this book.
Brian Thom, Université McGill