Territory, Boundaries & Overlapping Claims on the Northwest Coast
Brian Thom, PhD Candidate, McGill University
Paper Presented at the
99th Annual Meetings of the American Anthropological Association, San Francisco, November 2000
This paper examines the nuances of discursive practices about territory in several Coast Salish communities on the Northwest Coast. A comparison of contemporary and historic Coast Salish talk about land with the reified discourse of ‘traditional territories and boundaries' insisted on by the Canadian nation-state, shows the latter are inadequate for expressing ideas central to indigenous notions of land tenure. Many First Nations communities in British Columbia are engaged in treaty negotiations with the Provincial and Federal governments. To initiate their land claim, the state obliged each self-defined First Nation to submit a ‘statement of intent', including a map of their traditions territories with boundaries clearly defined. The response of First Nations to this requirement has resulted in a complex map of overlapping claims. My own observations of local ‘talk' about land in these communities show that these territories and boundaries are only one of many ways of expressing notions of land tenure, which has also changed over time. However, discontinuities in discursive practice within and between communities poses serious problems for Native groups faced with the challenges of building new self-governing institutions and resolving their overlapping claims. In cases where negotiations dissolve into litigation, these varying ways of expressing land tenure will be difficult to reconcile with legal tests for Aboriginal title. By situating this discussion of territory and boundaries in the context of native discursive practice, we can come to understand a more subtle model of indigenous ‘legal' traditions around land tenure.
These rigid laws in regard to the holding of land by the [Coast Salish] gentes are very important in the past history of the Indians of British Columbia, and are of prime importance in their present relations to the white settlers. (Boas 1890:833).
This is a story about how differing conceptions of indigenous social institutions, such as land tenure, can result in serious social and political problems. In recent years, representatives of the Canadian state have projected an essentialized vision of indigenous land tenure onto the legal notion of Aboriginal title. Institutions of the state have demand that First Nations frame their claims of Aboriginal title to land in terms which conform to the state’s model. This model looks nothing like the traditional land tenure systems described by historic ethnographies, nor does it reflect an uncontentious position to Aboriginal leaders and community members today.
In most of British Columbia, treaties were never signed with First Nations people. The question of who owns the land has been outstanding for over 150 years. In 1993, after over a century of denying First Nations people had any legitimate claim to their homelands, the Provincial and Federal Governments declared they were ready to enter into negotiations with First Nations who wished to settle these outstanding treaties. In the seven years that have passed, 51 Nations have been involved in the project, with no treaties having yet been signed (the Nisga’a Treaty was signed outside of this process). First Nations in BC were given an additional boost by the 1997 Delgamuukw decision of the Supreme Court of Canada. This decision finally clarified the scope of Aboriginal title, the burden on Crown sovereignty that First Nations people have over their traditional lands. Aboriginal title is a sui generis collective right in land (Delgamuukw v. R.  4 C.N.L.R.). Aboriginal title is based in pre-existing systems of Aboriginal law, and can be proved, by demonstrating the nature and extent of these traditional laws, and/or by showing use and occupancy of the land (Delgamuukw v. R.  4 C.N.L.R.). Lower courts in British Columbia have stated that the communities that holds title (the collective) should be broadly conceived, preferably a tribal council or treaty group (Kitkatla Band v. BC.  2 C.N.L.R. 167). These court decisions have been important in setting the framework for discussion of Aboriginal title. As we shall see, however, governments have chosen the most narrow possible reading of these decision to frame Aboriginal title, while First Nations have seen the decisions as a powerful reiteration of their century-old claims to the land. Both have very tentatively agreed that negotiations in the treaty process is the best way for settling these issues.
[overhead 1 - Coast Salish Statements of Intent] The first stage of the land claims process in British Columbia requires a self-defined First Nation to submit a statement of intent, which in part, is a map of the area being claimed. The First Nation is required to draw a border around the area to which lands and resources will be negotiated. In the submissions of the various boundary lines, First Nations leaders have tried to include all areas of significance or interest to their community members. These boundary lines, which have come to be called ‘traditional territories’, have generally been drawn up based on watersheds areas around contemporary Indian Reserves and the historical villages and camp sites of that community. Community leaders looked to some of the Elders for clarification on the extent that stories, place names and traditional use of the land which also was included in many of the statement of intents. Examples of this include the Tsawwassen claim, which includes parts of the Gulf Islands, which were seasonally used by community members and for which Elders knew strong oral traditions. Territorial lines extended to current and historic boundaries, generally encompassing the largest extent of territory that could be conceived. For example, the Squamish claimed will into Burrard Inlet, which they have occupied for only the past 100 years. The Stó:lô claimed all of Harrison Lake and the Nicolmeckel/Serpentine River deltas, where communities who speak different languages now assert as their territory. All of these ‘traditional territory’ boundaries have now formed a complex set of overlapping claims.
These ‘traditional territory’ Statements of Intent are quite different from the vision of land tenure painted by anthropologists who worked in the Coast Salish area from the end of the 19th century to the middle of the 20th century. These studies suggest that the land tenure system historically operated in two tiers. First, there are privately held, hereditary titles to productive resource locations. These property titles are held by extended families who frequently lived in one large household. Jurisdiction over there property titles(among other privileges and prerogatives) were granted to individuals when they received a hereditary name from the pool of names held by extended families (Barnett 1955:134). Property inherited included root and clam beds (Suttles 1974:55), productive fishing spots (Boas 1891:568) and hunting ranges (Barnett 1955:250; Duff 1952:77). These properties provided each household with its own host of sealing rocks, fish trap or weir locations, camas plots, bird rookeries, and so on (Barnett 1955:251; Jenness n.d.: 52). Permission for others to use these areas needed to be obtained from the title holders, though for family members this permission was implicitly granted. An essential part of the seasonal round included making visits to ones extended family members use these locations, which might bring an individual into territories throughout the Coast Salish world over a period of several years (Suttles 1987).
The remaining territories were held in common by the community. Diamond Jenness, who documented Coast Salish life in the 1930s, noted that “any villager, whatever his station in life, might fish and hunt wherever he wished within the village territory” (Jenness n.d.:53; see also Barnett 1955:251). Both Franz Boas (1890:833; 1891:569) and Homer Barnett (1955:252) describe these communal properties as being territories which include a strip of coast and a river course “over which they have the exclusive right of fishing, hunting, and picking berries” (Boas 1891:569). Though the village territories can be considered ‘common property’, they are not open-common lands. Individuals having privately held ritual and technical knowledge of resources were usually considered the trustee of the communal property of the community (Barnett 1955:244). Legends which recall ancestors coming down to a certain place, or settling there after the great flood, give the village groups rights to claim these common lands (Boas 1890:833). Rights to these common-lands could not be destroyed in any way (Boas 1890:833). In 1877, Gibbs noted that even with warfare and depopulation through smallpox, that these common lands are owned down to the last remnant of a tribe(Gibbs 1877:187). Historically, these areas were very tightly controlled, and were often demarcated by well-known border lines (ie: Boat Harbour on the Chemainus/Nanaimo border, Hatch Point on the Cowichan/Malahat border, rock at 4.5 mile Creek on the Stó:lô/Nlaka’pamux border). Oral histories recall how these territories have been vigorously defended, with villages coming together to assert their collective boundaries (ie: Curtis 1913:36; Miller 1999:25; Snyder 1964:389-91; 428-434).
Though these ethnographers have sketched out these principles of land tenure, very few attempts were made to systematically document the privately held titles and the extent of all the community common lands (the Stó:lô Nation has maintained mapping files of fishing locations on the Fraser River, and Suttles (1974) has tried to show communal territories of Northern Straits Salish groups). Instead, these ethnographers have produced a number of maps which have become the standard way of representing the traditional territories of Coast Salish peoples. [overhead 2 - Boas Map] Boas’s early (1887) map is interesting because he captures some of the complexity of the sharing of territories beyond the immediate range of the village. His map, however, is too badly lacking in detail and completeness to be an authority on territories today. Boas later started representing the areas as being discrete culture and language regions, a system of mapping which has been followed my almost all other ethnographers since. [overhead 3 - Mitchell Map] This composite map made by archaeologist Donald Mitchell in 1971 shows areas being distinguished by village group, but again with territories very imprecisely defined by straight lines on the Fraser, no lines in Puget Sound and major social groups missing from Vancouver Island. [overhead 4 - Suttles Map] Possibly the most common representation of Coast Salish territory are the maps based on language produced by Wayne Suttles. These maps do not divide communities on property-holding lines, but rather on lines of language and dialect. Boundaries are drawn between the speech communities, but the extent of the territories shown reflect Suttles’ own close work on recording the economic life of Coast Salish peoples. [overhead 5 - NWC map] The Smithsonian’s Handbook of North American Indians series has extended these boundaries throughout the Northwest Coast. Given these many different representations, it is not surprising that non-specialists have trouble trying to get to the bottom what the territorial boundaries historically looked like.
[overhead 6 - HTG Territory & Bands] A century of colonialism under the Indian Act, settlement of traditional villages onto Indian Reserves and intense alienation of lands by non-Native settlers has proved problematic for the older Coast Salish land tenure system. Respected community speaker Willie Seymour of the Chemainus First Nation has talked about how this ‘band-based’ thinking has alienated him from his traditional lands:
I’m using myself as an example what the boundaries have done to me as an individual. The creation of the Indian Act says I’m a Chemainus Band member #244, that I have no privileges to my ancestral lands. My great grand mother was from the stone church area, that is my grandfather that raised me, that’s his mother. That connects me to many Cowichan people as does my father. I have relatives here that can connect me and knows my connection to Malahat, Cole Bay and Esquimalt, my grandfather on my mother’s side. My other grandmother in Penelakut and Pat Bay, my aunt here, her mother. Beyond that my grandfather his grandmother was Musqueam, my grandfather that raised me his great, great, great grandmother was rom Kelowna. [...] These boundaries have taken away from me the right to access to Paquachin, Malahat. So when I talk about boundaries that never existed in the old days, it is since the Creation that the areas were shared with our people. We the younger generation today have accepted that division, we acknowledge and we allow the white government to successfully divide us (Willie Seymour, June 23, 1999).
Tight-knit extended-family bonds still exist, despite the fact that the historic large households are no longer in use. However, privately held territories are not openly talked about outside a number of highly productive fishing spots on the Fraser River. In naming ceremonies I have attended, and subsequent conversations over granting of hereditary names, I have not documented any discourse on access to privately held lands. [overhead 7 - Crown Lands] The mass alienation of lands through fee-simple land grants made by the Provincial and Federal governments in the Coast Salish world may have made such discussions of tenure over fee-simple lands off the reserve moot.
Some community members openly worry that the current ‘traditional territories’ defined in the Statement of Intent will constrain the access they have through extended family ties to common lands in neighbouring territories, just as the Indian Reserve system has done. Cowichan Elder, the late Ben Canute, cautioned a gathering of Coast Salish leaders and treaty workers about this:
I don’t think our people go to the territory over there [to the Fraser River] to take over the fishing rights. The fishing happens to be over there. True, we go over there to do some fishing. We go and get what we need and then we leave. This is the understanding of our people. The word overlapping is the hwunitum way of saying that we are pushing and pushing without backing off. That is not our way. ... It doesn’t hurt other Nations to go and get what we need and back off. Gathering food is an old way. Overlap is the white man’s way (Ben Canute, March 20, 1996).
he overlapping claims also bring into question what the nature of the collective title-holder is. In many cases, contemporary Indian Bands (which are generally either a historic village or aggregation of villages) have declared themselves First Nations in the Treaty Process, and thus the holders of Aboriginal title. Several Tribal Councils and Treaty Groups have formed, each of which represent a number of Indian Bands. In the Coast Salish area, nine Indian Bands have entered into the process on their own, while there are three tribal councils in the treaty process, which represent 18, 6, and 5 Indian Bands. Large tribal councils like the Stó:lô Nation operate under a common constitution, and assert themselves as the title-holding collective. In the instances of the treaty groups, no overarching self-government structures have been put in place, so the treaty group claims to be negotiating for title on behalf of each individual member First Nation. Nine independent Indian Bands and one Tribal Council of 5 Bands have chosen to stay out of the process altogether. It remains a question whether their title will be extinguished if the other groups settle for the lands in their overlapping territories.
For First Nations who have decided to make their claims to the land as a treaty group or tribal council (which is the stated preference of the Canadian state), internal territory boundaries become as big a problem as external ones. Communal lands are generally thought of in terms of Indian Bands rather than those of [overhead 8 - old villages] historic, pre-reserve villages. Indeed, mapping out these common lands would be difficult, as from the point-of-view of the individual, their boundaries are dependant not on which community you are from, but rather expand to which extended family members in other communities you choose to recognize. As we can see from these maps, in Vancouver Island Hul’qumi’num territory, old villages do not correspond to contemporary Indian Bands [overhead 9 - ‘Band-based’ territories]. I have asked a number of people to imagine what ‘band-based’ internal territories would look like, but absolutely no-one is satisfied with the kinds of answers that drawing six lines on a map would give. Some respondents pointed out that all the people in the territory (including those down to Sooke, and up the Snuneymuxw) are descended from the first ancestor who fell from the sky at Mt. Prevost, and should be considered as one people, one territory. [overhead 10 - Gitksan internal boundaries] The Gitksan in northwestern British Columbia, devised a novel solution in preparation for the Delgamuukw case, mapping internal territories dividing all the watersheds in the region among all the named traditional title-holders. Oral traditions and histories were essential in establishing such a clearly-defined statement of boundaries. It also took a unified political effort, driven by their massive and expensive court case. [overhead 7 again - Crown Lands] Such a solution would not work well for Coast Salish people in the present circumstances, as there would only be enough Crown lands available for a few families to be properly entitled.
First Nations leaders are meeting with each other outside the Treaty process to establish protocols on ‘overlapping’ territories. They want to reach agreements that will be equitable to all parties once the bounds of Aboriginal Title become more well defined. Nanoose Chief Wilson Bob described this at a meeting with Hul’qumi’num Treaty Group Chiefs and Elders:
... there is no way we want to use the overlapping type of language that the governments use. We feel that it could create problems when you start to lay solid boundaries, we feel that it would only create hardship. And knowing that our families are inter-related in all these communities, we don’t see any reason to have the overlapping terminology that governments use. We have shared territories, it is to our own advantage to deal with it in our own way, rather than try to satisfy the governments. (Chief Wilson Bob, June 9, 1997).
They are currently considering their options for how to distribute revenues which would flow from potential timber sales on shared lands after treaty negotiations. Operating under a capital-driven market system makes traditional family-driven forms of jurisdiction-sharing on common lands difficult, putting political pressure on some parties to draw sharp lines in spite of the neighbourly good will expressed in much of the present public rhetoric.
While one arm of the state continues to slowly negotiate treaties with these First Nations groups, others continue to alienate lands and resources as a part of mainstream societies larger economic development activities. Agents of the state refuse to accept the statements of intent as valid assertions of title to whole traditional territories. This would put into question too much of the states’ jurisdiction to grand tenures and extract resources. However, the state has a duty to consult with Aboriginal title holders. In the realms of forestry (municipalities have yet to accept aboriginal people as title holders in their plans for urban expansion) and other resource extraction activities, this consultation process is based essentialized simplistic model which views Aboriginal title as extending only to highly site specific ‘core’ territories which have clear evidence of continuous use and occupancy. This again has proved difficult for First Nations leaders, who feel that title to the land is undifferentiated within their traditional territory boundaries, and that they should not have to defend these boundaries to Government agencies and third party interests while in-good-faith negotiations are proceeding.
To conclude, I would like to look to the future for a moment. I believe that Coast Salish leaders are going to have to make some difficult pragmatic decisions about what kind of relationship to the land they will be able to establish in the current negotiations, and what will have to be left for future generations. I suspect they will negotiate for ownership of the remaining Crown lands and foreshore tenures, and provide for future expansion of this land base through long-term buy-back agreements. They will also likely try to exercise jurisdiction over land use planning for the remaining privately held lands, becoming newly powerful stakeholders in the urban communities of southwestern British Columbia. The old system of private and communal tenures would be very difficult to re-create in their full extent, but their principles could form the basis of a post-treaty self-government. These self-governments will have a lot of pressure to balance a kin-centred approach accessing resources with the interests of participating in market economies. Designing such a system without falling prey to the essentialized models of the dominant society will be one of the greatest challenges for Coast Salish leaders today.
I would like to recognize a number of important sponsors of my work. First I would like to thank the Centre for Society, Technology and Development at McGill University for providing travel funds and a research grant to undertake this work. I would also like to thank a number of agencies who have funded my doctoral dissertation research, which this paper is a part of. The Social Sciences & Humanities Research Council of Canada provided a doctoral fellowship; Wenner-Gren Foundation provided a Doctoral Small Grants award; The Jacobs Fund provided a Research Grant; BC Heritage Trust provided a Graduate Studies scholarship. Finally, I would like to thank the Chiefs and Elders of the Hul’qumi’num Treaty Group for their wisdom and guidance, and to Joey Caro and Larry George in particular, for helping me think about the problems discussed here.
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