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