LIVING TOGETHER: GITKSAN LEGAL REASONING AS A FOUNDATION FOR CONSENT
by Val Napoleon
Janus—the Roman god of gates and doorways, looking within and without, to the past and the future—is arguably an apt patron for the common law, and perhaps for law in general, for common law anchors solidly in the past its normative demands on present actions and guidance for future actions.[1]
1.0 INTRODUCTION
Much of the literature about aboriginal legal orders[2] reflects a general narrowness in thinking about customary law.[3] Customary law is not an easily codified set of rules for what to do and not do.[4] Nor is it simply “an expression of the ‘force of habit’ that ‘prevails in the early history of the race’”.[5] Rather, customary law inheres in each aboriginal cultural system as a whole, forming legal orders that enable large groups of people to live together and to manage themselves accordingly.[6] Failure to fully appreciate the complexities and intellectual processes involved with decision making, law making, dispute resolution, and conflict management in aboriginal legal orders can render aboriginal cultures into unfortunate, one-dimensional caricatures.[7] In other words, simplistic characterization of aboriginal legal orders not only ignores history and constant cultural change, it flattens the diversity of cultures and obscures the tremendous depth and scope of human experience.
In this paper I explore and discuss customary law among the Gitksan[8] of northwest British Columbia through an examination of their legal reasoning as demonstrated in the management and resolution of a serious intra-clan dispute in 1945. This took place in the Gitksan[9] village of Gitsegukla during a very important two-week series of pole raisings and related cultural business and activities.[10] My second purpose is to compare the history and conceptions of legal reasoning in early English common law with Gitksan legal reasoning, drawing from the works of Gerald Postema and Lon Fuller.[11] My third purpose is to discern lessons that might be helpful in the development of future aboriginal justice and self-government initiatives. My overall contention is that it is the embedded legal reasoning process, as demonstrated in this retrospective case study, which enables Gitksan peoples to create a dialogic construct of consent as the foundation for their society.[12]
Part 2 of this paper provides a description of the cultural background of the Gitksan, the two weeks of feasts and events, and the dynamics and elements of the dispute. Part 3 contains an application of Fuller’s definitions of customary law to Gitksan law. Part 4 is an analysis of Gitksan legal reasoning using a framework constructed of Postema’s description of English common law reasoning. Part 5 contains observations and lessons for future consideration. The footnotes provide additional detailed background and cultural information to assist the reader in developing a more comprehensive appreciation of Gitksan society and the context surrounding the 1945 pole raising.
2.0 GITKSAN RETROSPECTIVE CASE STUDY
Gitxsan culture is a living entity that is flexible and adaptive. It is ironic that this is sometimes obscured by analysts who seek to understand it. … It is more useful to see the accumulated knowledge, history, and custom of Gitxsan culture as creating a treasury of potential in which each element could be emphasized according to its appropriate context.[13]
2.1 Background
In 1936, a serious flood on the Skeena River washed out homes and “totem poles” (poles) in four Gitksan villages. While some poles were lost completely to the floodwaters, many others were rescued and restored.[14] The significance of the poles is that they are “carrier[s] of social, spiritual, territorial, and economic rights and privileges”.[15] The carved poles display the crests (ayuks) – the specific privileges drawn from the ancient, formal, collective oral histories (adaawk), which are cultural property owned by the kinship groups.[16] Over the next several years, more of the missing poles were replaced in the villages of Gitanmaax, Gitanyow, and Gitwangak. By 1943-45, “a strong spirit of renewal had grown up” as people resisted the crushing onslaught of colonialism to revive customs and restore or replace the poles.[17]
In 1945, five Houses[18] from Gitsegukla re-erected and replaced poles that had been lost or damaged by the flood. Gisgahast Houses raised four of these poles and a Ganeda House raised the fifth pole.[19] Over a two-week period, the five poles were raised along with a series of corresponding halayt performances,[20] nax nox ceremonies,[21] and pole-raising feasts.[22]
William Beynon, an ethnographer as well as a participant-observer, attended this series of pole-raising feasts and cultural activities in Gitsegukla, B.C. and wrote the almost 200 pages of detailed notes which form the primary information base for this paper.[23] Anthropologists Margaret Anderson and Marjorie Halpin confirmed Beynon’s written account with the exceptional memories of several Gitksan people, three of whom were in attendance at the feasts.[24] According to Anderson and Halpin, “The trained memories of those raised in an oral tradition partly explains the ability of participants to immediately recall the names of a large number of guests. This crucial memory function was sometimes parcelled out among several people.”[25]
The Feast (often referred to outside Gitksan circles as the potlatch) is a complex political, legal, economic, and social institution in which the main business of the hosting House is transacted and formally witnessed by the guest Houses.[26] Jurisdiction among the Gitksan is exercised through the Feast. In former times, Feasts were held for all major legal, social, and political transactions including marriage, shaming (to control harmful and injurious behaviour), cleansing (to restore spirits after serious injury), restitution, birth, graduation (to celebrate achievements), naming, reinstatement (for Gitksan people who disobeyed the laws), coming of age, “smoke” (for obligations related to organizing settlement feasts), grave-stone placing, settlement (repayment of obligations arising from a death), divorce, and pole raising.[27]
The 1945 Feasts and attendant ceremonies took place in a dynamic social, political, and economic context. One key element of this was that, as part of a repressive federal political coercion strategy, federal legislation prohibited the Feast, as well as the central cultural institutions of other aboriginal nations, from 1884 to 1951.[28] Beginning in 1920, many Gitksan people were charged and prosecuted with suspended sentences or warnings because of their Feast participation. During this time, in conscious resistance to overt legislative repression, many Gitksan people persevered in raising the poles and organizing the Feasts.[29] Finally, in 1931, Department of Indian Affairs gave up having people charged, although the legislation was not repealed for another twenty years.[30]
Another contextual factor surrounding the 1945 feasts was a controversial (and seemingly age-old and universal) split between old and young Gitksan over maintaining cultural institutions and continuing major cultural practices. On the one hand, the “old thought” members insisted on fulfilling the required formal and detailed protocols for all their usual legal, social, and political transactions. On the other hand, the “young thought” members argued for a more modern approach with shorter and less expensive proceedings. These included written invitations rather than the official village-to-village invitation proceedings, and more contemporary dances instead of the usual more conventional dancing.[31] For example, one young man expressed the view that the money should be spent on modern economic development to create employment instead of on the feasts.[32]
A third factor in the context in which the 1945 Feasts took place was the colonial assault of residential schools, settlers, missionaries, disease, and increasing government control. These factors, combined with the building of the Canadian National Railway and the industrialization of natural resource extraction (e.g., logging, fishing, and mining), effectively undermined the Gitksan society, political power, and economy.
It was in the face of this intense, colonially wrought, internal and external turmoil that the “older thought” Gitksan won the day thereby allowing the 1945 feasts to be held.
The adaawk (formal collective oral history), a fundamental Gitksan intellectual institution, is also critical to understanding the events of 1945 and the Ganeda crest dispute. Each House has an owned adaawk that links the group to its territories and establishes rightful ownership of the land and resources. These adaawk tell of the origins and migrations of groups to their current territories, explorations, covenants established with the land, and songs, crests, and names that result from the spiritual connection between people and their land.[33]
Such formal adaox are formal, public, and freighted with implications for territories, privileges, and political relations among actors and groups. They are largely restricted to the contexts in which these matters are being publicly transferred or transformed [i.e., in the feast hall]. Except for the requisite linkage to establish prerogatives, these are stories that resist the agency of contemporaries.[34]
The chief of the House hosting the feast recounts the House’s adaawk. In turn, each guest chief who witnesses the host House’s adaawk formally and publicly responds.[35] The invited guests are the niid’nt, “the ones who approve”. The weight of that approval or disapproval depends on the guest House’s relationship with the host House. The heaviest responsibility lies with the host House’s opposite clan in its home village, the niidihl – the group with whom the host House’s members are most likely to intermarry. The witnessing and approval must be publicly declared to effect any change in social standing in Gitksan society.[36]
The ancient history recounted in the adaox is generally shared by a number of related Houses that have in common some, but not all, of their names, crests, and dirges – specifically those drawn from the events of the shared portion of the adaox. …
The adaox accounts of the movement of ancestors help to explain the fact that there are Houses from the same origin in various locations.[37]
The ayuks (crest) forms another crucial part of the Gitksan cultural foundation, a specific named power or privilege drawn from the adaawk that may be represented on poles, robes, regalia, headdresses, or other objects.[38] Chiefs Gisday Wa and Delgamuukw explain how intertwined the crests, poles, and adaawk are with the Gitksan and their land:
The pole which encodes the history of the House through its display of crests, also recreates, by reaching upwards, the link with the spirit forces that give the people their power. At the same time it is planted in the ground, where its roots spread out into the land, thereby linking man, spirit power, and the land so they form a living whole. Integral to this link and the maintenance of the partnership, is adherence to the fundamental principles of respect for the land and for its life forms.[39]
Crest management is an important aspect of the chiefs’ responsibilities in order to prevent strife because there is always competition for the valued crests. According to Anderson and Halpin, “Houses that become depleted in numbers, or that do not take care of their crests, risk having others disregard or even usurp their rights.”[40] These crest management practices include carefully arranged marriages, adoptions, public proclamations of successors, and also strategic crest retirement. For example, in her speech, Mool’xan deliberately restricted the future use of a crest to prevent strife:
I have here a robe made for me to represent my crests of Moodzәks (Sparrowhawks) four in number on each side of the Split Raven form. This Raven was the hlgul’wi’lksigim gak = “the Prince of Ravens.” This crest was special to the House of Mool’xan and could be used by no other than Mool’xan. Now that I am nearing the end of my life’s journey, I intend to use the robe as my burial robe and the crest will now be extinguished. It will be not well that the new generations will be quarrelling as to who shall have the right to use it. So in order to avoid this I am doing this and in order that you may know of it, I am telling you now, so you can be witnesses to this. The garment which I am wearing now belongs also to the Mool’xan House and that will be known as “The Split Raven” Wәl b’a hlgihl gak “where split raven.” This will be the robe my successor shall wear and this will be inherited from each Chief to successor. This you will know Chiefs.[41]
Anderson and Halpin question whether management of the crests could successfully happen outside the active management of the Feast system because of the critical need for active and knowledgeable elders to deal with the complexities of the adaawk, crests, privileges, and power dynamics.[42]
2.2 The Dispute
During the 1945 Feast series, Beynon recorded a dispute that arose regarding the use of a Ganeda crest called Ganuget (logs for destroying people), which was originally the property of the House of Neek’t, Ganeda. This dispute was between Hlengwax, a small and highly ranked Ganeda House from Gitwangak, and Gaxsgabaxs, a larger and growing Ganeda House from Gitsegukla.
House Chief Hlengwax[43] claimed that he had the exclusive privilege of using the Neek’t crest, and he was troubled because House Chief Gaxsgabaxs intended to use the same crest on a pole he was raising in Gitsegukla and to call it by the same name, Ganuget. Hlengwax argued that the crest originally belonged to Chief Neek’t (an ancestor of both Hlengwax and Gaxsgabaxs) who had taken it as his personal property years ago, and that it had devolved to Hlengwax.