LIVING TOGETHER: GITKSAN LEGAL REASONING AS A
FOUNDATION FOR CONSENT [DRAFT 29-09-04]
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 orders2 reflects a general narrowness in
thinking about what customary law is.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. 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.6 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 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
Gerald J. Postema, “Classical Common Law Jurisprudence (Part I)” (2002) 2:2 Oxford University
Commonwealth Law Journal 155 at 155 [Postema, Part I].
2
I use the term “legal order” in this paper to describe legal rules and procedures that are undifferentiated
from social life and from political and religious institutions. “Legal systems”, on the other hand, may be
described as distinct, integrated bodies of law, consciously systematized by professionals with specialized
institutions, legislation, and the “science of law”. See Harold J. Berman, Law and Revolution (Cambridge:
Harvard University Press, 1983) at 49-50.
3
According to Scott Clark, there is no agreed definition of customary law, but see his and Lon Fuller’s
comments on this issue in Part 3.0, “Gitksan Law as Customary Law”, below; Public Inquiry into the
Administration of Justice and Aboriginal People, Aboriginal Customary Law Literature Review by G.S.
Clark and Associates (1990) [unpublished] at 5, 17-18 [Clark]; Lon L. Fuller, “Human Interaction and the
Law” (1969) 14 Am. J. Juris. 1 at 11 [Fuller, Human Interaction].
4
Fuller, Human Interaction, ibid. at 11.
5
Ibid. at 15.
6
Such a distorted rendering of aboriginal legal orders may be usefully analogized with some of the
problems created for aboriginal peoples by the recent efforts to recognize, classify, and universalize the
traditional ecological knowledge of indigenous peoples. For example, according to Julie Cruikshank, “The
pitfall of both axioms – one linking hunters with harmony, the other of conflating norms with behaviour –
is that each so easily becomes a weapon when indigenous people fail to pass arbitrary tests of authenticity”
(The Social Life of Stories: Narrative and Knowledge in the Yukon (Vancouver: UBC Press, 1998) at 60).
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Gitksan7 village of Gitsegukla, British Columbia during a very important two-week series
of pole raisings and related cultural business and activities.8 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 Lon Fuller and Gerald
Postema.9 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 example, which
enables Gitksan peoples to create a dialogic construct of consent as the foundation for
their society.10
Part 2 of this paper provides a description of the cultural background of the Gitksan, the
two weeks of feasts and other 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.11
Along with the Nisga’a and the Tsimshian, the Gitksan are actually one of three closely related nations of
northwest coast people that form the “Tsimshian”. The three nations share a common ancient heritage, and
there are many similarities between their cultures and languages. See Susan Marsden, Margaret Anderson,
& Deanna Nyce, “Tsimshian” in Paul R. Magosci, ed., Aboriginal Peoples of Canada: A Short Introduction
(Toronto: University of Toronto Press, 2002) at 264. As did other aboriginal peoples, the Gitksan
continuously interacted with other neighbouring peoples through marriage, adoption, and trade. The oral
histories demonstrate how Gitksan laws were frequently exercised to incorporate people from other nations
into the Gitksan system.
8
Margaret Anderson & Marjorie Halpin, eds., Potlatch at Gitsegukla: William Beynon’s 1945 Field Notes
(Vancouver: UBC Press, 2000) [Anderson & Halpin].
9
Lon L. Fuller, “Law as an Instrument of Social Control and Law as a Facilitation of Human Interaction”
(1975) B.Y.U.L. Rev. 89 [Fuller, Law as Instrument]; Lon L. Fuller, “The Law’s Precarious Hold on Life”
(1968-69) 3 Ga. L. Rev. 530 [Fuller, The Law’s Precarious Hold]; Barry Macleod-Cullinane, “Lon L.
Fuller and the Enterprise of Law” (1995) 22 Legal Notes: An occasional publication of the Libertarian
Alliance, online: Libertarian Alliance <http://www.libertarian.co.uk> [Macleod-Cullinane]; Gerald J.
Postema, “Classical Common Law Jurisprudence (Part II)” (2003) 3:1 Oxford University Commonwealth
Law Journal 1 [Postema, Part II]; Gerald J. Postema, “On the Moral Presence of Our Past” (1991) 36:4
McGill L.J. 1153 [Postema, Moral Presence].
10
According to Jeremy Webber, dialogic theories of consent conceptualize “a community’s legitimacy as a
function of the quality of its interactions, rather than of an historic (and indeed generally mythical) act of
adherence”(“Challenges of Consent”, (Paper prepared for the Inaugural 2004 Conference of the
Consortium on Democratic Constitutionalism: “Consent as the Foundation for Political Community”),
online: University of Victoria http://www.law.uvic.ca/demcon/2004_program.htm at 22).
11
Anderson & Halpin, supra note 8 at 35.
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2.1
Background
In 1936, a serious flood on the Skeena River washed out homes and poles ( popularly
called “totem poles”) in four Gitksan villages. While some poles were lost completely to
the floodwaters, many others were rescued and restored.12 The significance of the poles is
that they are “carrier[s] of social, spiritual, territorial, and economic rights and
privileges”.13 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.14 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.15
In 1945, five Houses16 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.17 Over a two-week period, the five poles were raised along
with a series of corresponding halayt performances,18 nax nox ceremonies,19 and poleraising feasts.20
12
Ibid. at 3. There are currently six Gitksan villages: Gitanmaax, Kispiox, Glenvowell, Gitsegukla,
Gitwangak, and Gitanyow. Glenvowell is a more recent village created by religious converts during the late
1800s.
13
Ibid. at 41.
14
Ibid. at 15-16.
15
Ibid. at 3.
16
The basic conceptual political unit in Gitksan society is the wilp or House. It is the House that is the
territory- and fishing site-owning entity. Each Gitksan person is born into his or her mother’s House, a
matrilineal kinship group of about one hundred and fifty persons who share a common ancestry. The term
“House” originates from the historic longhouses, although members of the same House did not actually live
under the one roof. Rather, House members were and are widely scattered by marriage and occupation.
House members have rights and responsibilities in other Houses by virtue of their roles as spouses and clan
members. See Richard Daly & Val Napoleon, “A Dialogue on the Effects of Aboriginal Rights Litigation
and Activism on Aboriginal Communities in Northwestern British Columbia” (2003) 47:3 Social Analysis,
The International Journal of Cultural and Social Practice 108.
17
Each Gitksan House belongs to one of four larger pteex, or clans, which share a broader history – the
Ganeda (Frog), Gisgahast (Fireweed), Lax Gibuu (Wolf), and Lax Skiik (Eagle).
18
A House also has independent spiritual relations that are not connected with territory and crests. These
are halayt performances which are brought to life in demonstrations by a chief at a feast and are considered
property of the House. See Richard Overstall, “Encountering the Spirit in the Land: ‘Property’ in a Kinshipbased Legal Order” in John McLaren, ed., Property Rights in Colonial Imagination and Experience
(Victoria, B.C.: University of Victoria) [forthcoming in 2004]. (A discussion on the House may be found in
an earlier version, presented as a paper to a colloquium on colonial property, Faculty of Law, University of
Victoria, 2001, online: <http://colonialpropcolloq.law.uvic.ca/papers/Overstall.htm>) [Overstall].
19
Chiefly names are literally imbued with specific powers that become part of the chiefs who hold them.
These are called nax nox and form part of the cultural property of the House. See Susan Marsden, “Adawx,
Spanaxnox, and the Geopolitics of the Tsimshian” (2002) 135 BC Studies 101 at 103.
20
Anderson & Halpin, supra note 8 at 31. In this paper, all references to ”feast” or “feasts” are to
observances of the political and social institution called “the Feast”, which is described in more detail in the
text introducing note 24 infra.
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William Beynon, an ethnographer as well as a participant-observer, attended this series of
pole-raising feasts and cultural activities in Gitsegukla and wrote the almost two hundred
pages of detailed notes which form the primary information base for this paper.21
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.22 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.”23
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. 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.24
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 1951.25 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.26 Finally, in 1931, the Department of Indian Affairs gave up having people
charged, although the legislation was not repealed for another twenty years.27
Anderson & Halpin, supra note 8 at 4-11. Beynon’s mother was Nisga’a and his father was Welsh.
Though raised in Victoria, British Columbia, Beynon was fluent in Tsimshian. Between 1915 and his death
in 1958, he worked as an ethnographer with Marius Barbeau, Edward Sapir, and others. Beynon also held
the high-ranking Nisga’a Lax Gibuu chief’s name, Gusgai’in, and so was able to attend the Gitsegukla
feasts as a participant. The Gitsegukla pole raisings and associated activities would have been conducted in
Sm’algyex, the Gitksan language, but Beynon wrote his notes in English.
22
Ibid. at 12. Anderson and Halpin conferred with Gwaans (Olive Mulwain), Hannamauxw (Joan Ryan),
Gaxgabaxs (Gertie Watson), and Mas Gaak (Don Ryan).
23
Ibid. at 34.
24
Ibid. at ix.
25
Act Respecting Indians, S.C. 1884 (43 Vict.), c. 28, s. 1. s. 113.
26
The Gitksan also actively sought to protect their lands by resisting the surveyors and road builders, and
by protesting to federal authorities. A number of Gitksan people were charged and sentenced to Oakalla
Prison for confiscating surveyors’ equipment and sending them away. The federal government responded
with armed force, and in 1927 amended the Indian Act to prohibit raising funds for land claims. This
21
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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.28 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.29
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.
In order to understand the events of 1945 and the Ganeda crest dispute, is also critical to
understand the fundamental Gitksan intellectual institution of the adaawk, or oral history.
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.30
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.31
prohibition was in place until 1951. See James A. McDonald & Jennifer Joseph, “Key Events in the
Gitksan Encounter with the Colonial World” in Anderson & Halpin, supra note 8 at 208.
27
McDonald & Joseph, ibid. at 208.
28
Anderson & Halpin, supra note 8 at 4.
29
Ibid. at 192.
30
Susan Marsden, “Defending the Mouth of the Skeena: Perspectives on Tsimshian Tlingit Relations” in
Jerome S. Cybulski, ed., Perspectives on Northern Northwest Coast Prehistory (Hull: Canadian Museum of
Civilization, 2001) 61 at 62-63.
31
Margaret Seguin Anderson & Tammy Anderson Blumhagen, “Memories and Moments: Conversations
and Re-Collections” (1994) 104 BC Studies 85 at 96-97.
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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.32 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.33
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.34
Another crucial part of the Gitksan cultural foundation is the ayuks, or crest, a specific
named power or privilege drawn from the adaawk that may be represented on poles,
robes, regalia, headdresses, or other objects.35 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.36
Crest management is an important aspect of the chiefs’ responsibilities in order to prevent
strife from the perpetual 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.”37 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
attempted to prevent strife by deliberately restricting the future use of a crest:
32
Ibid. at 94. I use the term adaawk to distinguish the ancient and formal adaawk from what Anderson
describes as reminiscences and the more formalized and elaborated anecdotes called txal ‘ya’ansk. Also see
Erica Ball, “Using Adaawk” (April 2002) [unpublished, archived by the author in Hazelton, B.C.]. Ball
explains that there are also stories called andamahlaswx (general, un-owned stories). The andamahlaswx
are described as stories that anyone can tell, such as Weget (Raven) stories and stories told to children.
33
Anderson & Halpin, supra note 8 at 254, n. 13.
34
Ibid. at 15.
35
Ibid. at 16. The crest is actually a complex category with three referents. For the purposes of this paper, I
will introduce only the type of crest disputed by the Ganeda Houses.
36
Gisday Wa & Delgam Uukw, The Spirit in the Land (Gabriola, B.C.: Reflections, 1989) at 26.
37
Anderson & Halpin, supra note 8 at 17.
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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.38
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 attendant power dynamics.39
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 of from Gitwangak, and Gaxsgabaxs, a larger and
growing Ganeda House from Gitsegukla.
House Chief Hlengwax40 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.
According to Hlengwax, Neek’t had crushed an attacking group by rolling a large pole
down the sides of the fort he was defending. The Ganuget crest design of small,
horizontal human figures represented the victims who were crushed by Neek’t in this
famous victory.41 In this case, there was no issue of any territory- or resource-use
privileges being directly at stake.42 Hlengwax threatened to take the dispute into the open
38
Ibid. at 17 [emphasis added].
Ibid. at 49-50.
40
Usually the House takes the name of its head House Chief (simooget). For example, Hlengwax is the
name of the head chief and also the name of his House.
41
Anderson & Halpin, supra note 8 at 80.
42
See Overstall, supra note 18. According to Overstall,
Once acquired, rights to territory are inalienable unless the House is unable to produce
sufficient wealth to perform its feast responsibilities, or is required to relinquish one of its
territories as compensation. The Gitksan system of compensation is known as xsiisxw, in
39
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by asking all the Gitwangak chiefs (with whom he had strong ties) to stay away from the
Gitsegukla feasts if Gaxsgabaxs were to put the Ganuget crest on his pole.43 The
Gitwangak chiefs held the jurisdictional prerogative to withhold support from the
Gitsegukla feasts. To do so would have seriously diminished the power of the Gitsegukla
Houses hosting the feasts and raising the poles.44
On the morning of Gaxsgabaxs’ pole raising and feast, T’awa’lesk, Head Chief of the
Lax Skiik from Gitwangak, approached Hlengwax about the dispute and Hlengwax’s
actions:
Let these people do as they wish. If they do anything that will not be proper or
correct and usurp the rights of anybody, it will become known at once. So Chief
Hlengwax, I ask of you not to interfere in any way. We all will know when they
do anything wrong. If you but say the word we will immediately leave here and
return to Gitwangak, but this will bring ridicule upon us all. They will say we are
jealous and afraid, but if you so wish we can all return to our homes at once. It is
they that have broken their promise to you, but as I said, we will be called many
names. If they do anything that is wrong, our brothers from Gitwinhlgu’l
[Gitanyow] will know, and they are wise people and will know what to say.
So Hlengwax replied. “I will do as you wish. I will stay, but in today’s
festivities I will not take part. I was to assist Gaxsgabaxs in his feast today, but I
will not attend as something may be said that will anger me and cause me to say
or do something which I may regret and will bring shame and ridicule upon you
all. So I will heed your wise counselling and abide by your wishes.45
At his feast, Gaxsgabaxs told the adaawk of how the warrior Neek’t, wearing his bearskin
armour, had captured a wife and an eagle crest from the Haisla village of Kitimaat.
According to Gaxsgabaxs’ adaawk, the small horizontal figures of the Ganuget crest
represented the Haisla victims of Neek’t’s attack on Kitimaat. Neek’t then travelled and
settled in many places, so that the Neek’t crest actually belonged to Houses in the Gitksan
villages of Gitsegukla and Kispiox, the Nisga’a village of Gitladamix, and the
which one House relinquishes wealth, names, crests or territory to repay an offence
committed against another House. The amount paid is more gauged to settle the disquiet
felt by the other party than to replace the lost value. In the past, if the compensation
process was not quickly started, homicides and other serious offences could escalate into
feuds as retaliation killings were lawful after warnings had been given. Compensation for
the death of an individual may involve a gift of material wealth; for the intentional death
of an important chief, it may involve the transfer of territory for the lifetime of the
immediate family of the deceased; and for a series of unprovoked attacks on a
neighbouring people, it may involve the permanent transfer of territory to the innocent
party. The legal principle coming into play in the latter case is that not only has an
offence been committed against an innocent human party, but also against the laws of
respect for the land itself. In such cases, the original bond [with the land] is broken and
divorce is the sole remedy. [footnotes omitted]
43
Anderson & Halpin, supra note 8 at 65.
44
Overstall, supra note 18. Initially, the Gitsegukla chiefs informed Hlengwax that the Gaxsgabaxs pole
would be changed and the Ganuget crest would be removed. See Anderson & Halpin, supra note 8 at 66.
45
Anderson & Halpin, supra note 8 at 129-30.
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Wet’suwet’en village of Hagwilget.46 Gaxsgabaxs also explained that under Gitksan law,
he was entitled to use the crest of Neek’t because a former Gaxsgabaxs was Neek’t’s
nephew:47
So thus when Neek’t returned to Gitwangak he erected his totem pole and as one
of the nephews who came on [this journey] returned to Gitsegukla and here he
was privileged to use the same crests and names as his uncle’s as he was now
reviving the House his uncle Neek’t had built on the Gitsegukla group. Thus he
also had used as his front house painting the same as what was used at
Gitwangak. … Now Gaxsgabaxs also had the right to erect a similar pole here,
thus showing he had been with his uncle when he came from Gitsegukla and
went to Kitimaat on his invasion of that place. …
This narrative that I am telling you was narrated to me by my uncles and I
grew up in their midst. … and now you chiefs will know whether what I say is
true or whether I am doing something that I have no right to do. I will leave this
to you. … But I come to you, as you are wise in all these matters and I am now
this day exhibiting to you that which is my inheritance. I have not stolen anything
that belongs to somebody else. So you have this day helped me to take my place
among you and I have now fulfilled my obligations and shown you the privileges
belonging to our House.48
As he had promised, Hlengwax did not attend Gaxsgabaxs’ pole raising or his feast. The
Gitwangak chiefs attended the feast, but did not validate Gaxsgabaxs’ version of the crest
privilege. The other chiefs, including those from Gitanyow, affirmed and validated
Gaxsgabaxs’ crest privilege. It is important to note that over the two-week period,
Hlengwax participated in the other pole raising activities, halayt performances, nax nox
demonstrations, feasts, and associated activities.
2.3
Dispute Elements
(a)
Neutral Intervener Chief
The intervener was T’awa’lesk from the Lax Skiik of Gitwangak. He did not have a
direct interest in the Ganuget crest because he was not from the disputants’ clan.
However, T’awa’lesk was niidihl (opposite clan) to Hlengwax and as such, his interest
would have been to maintain the overall Gitksan legal order. In this instance, T’awa’lesk
could be considered a neutral and disinterested party.49 Similarly, Hagpegwotxw of
Gitsegukla, niidihl to Gaxsgabaxs, was the other key party in negotiating the dispute.50 It
appears that Hlengwax’s wife was most likely from the Hagpegwotwx House or its
46
Ibid. at 136-139. As noted earlier, many groups migrated throughout the region, so the older histories
may be shared by lineages dispersed among northwest coast peoples.
47
Names form part of each House’s cultural property. When an individual dies, their name returns to the
House and the House may assign it to another House member. When a chief dies, the name is usually
immediately passed on to the person in line for the name.
48
Anderson & Halpin, supra note 8 at 138-39.
49
John Ralston Saul, The Unconscious Civilization (Concord: Anansi Press, 1995) at 167. Saul argues that
personal disinterest is necessary in order for people to effectively maintain the larger public good.
50
Anderson & Halpin, supra note 8 at 129.
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wilnadaahl (closely related Houses) because Hlengwax initially relied upon her to convey
messages to Hagpegwotwx regarding the dispute.51
(b)
Neutral Village
T’awa’lesk advised Hlengwax and the Gitwangak chiefs to accept the assessment and
decisions of the Gitanyow chiefs at the Gaxsgabaxs feast. Like T’awa’lesk, the village of
Gitanyow had no direct interest in the Ganuget crest and so could be considered neutral in
matters to do with it. They did, however, have an indirect interest in maintaining the
overall Gitksan order and public good. In the end, the Gitanyow chiefs determinatively
validated Gaxsgabaxs’ adaawk and his “use privilege” of the Ganuget crest.
(c) Feast Validation and Collective Responsibility
The decision as to the validity of Gaxsgabaxs’ claim was made collectively by the
witnesses at the feast under its special rules for behaviour and procedure. Hlengwax
explained his absence from the feast by saying, “[S]omething may be said that will anger
me and cause me to say or do something which I may regret and will bring shame and
ridicule on you all”.52 His concern about controlling his anger and behaviour at the feast
indicates his responsibility to the Gitwangak chiefs who would have been held
collectively responsible for his actions.
(d)
Balancing Consequences
T’awa’lesk was clear about the Gitwangak chiefs’ commitment to supporting Hlengwax
and following his lead should he ask them to boycott the Gaxsgabaxs feast. In this way,
T’awa’lesk assured Hlengwax that his role and actions were important and that he still
owned the dispute.53 T’awa’lesk also articulated the possible collective repercussions of a
Gitwangak boycott of the Gaxsgabaxs feast. The interaction between T’awa’lesk and
Hlengwax reveals a very fine balance:
If he is right about the crest privilege, his [Hlengwax’s] boycott will enable him
to disassociate himself from any correction of Gaxsgabax and will enable him to
restore their relationship later. If he is wrong, his absence will enable him to save
face, but the presence of the other Gitwangak chiefs will enable the privilege of
displaying the crest to be validated and save them from the ridicule feared by
T’awa’lesk.54
Arguably, under Gitksan law, the past or current Hlengwax could raise a pole in
Gitwangak with the Neek’t crest as validated by the Hlengwax adaawk.55 Hlengwax was
51
Ibid. at 129.
Ibid. at 130. In Gitksan society, individual deaths and injuries, liabilities, and compensation are acted on
collectively through the kinship system.
53
Overstall, supra note 18.
54
Anderson & Halpin, supra note 8.
55
Personal interview with Don Ryan (Mas Gaak) May 2003.
52
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not told that he had no use privilege of the Neek’t crest, but rather that he did not have
exclusive use of the crest. Gaxsgabaxs’ adaawk was validly confirmed at his feast.
(e)
Response Speeches
As explained in Gaxsgabaxs’ speech and earlier in this paper, the adaawk must be
formally recounted, witnessed, and validated at the feast. This is a public, interactive, and
highly political process, conducted with extreme tact and subtlety. The following
response speech to Gaxsgabaxs’ adaawk by Gisgahast chief Wiséks, of Gitsegukla, is
typical:
Yes Chief Gaxsgabaxs, what you have said is true. I myself attended a former
feast of your uncle, where he narrated the same story that you now tell, and
everything is as you said. And you have done the proper thing in showing this to
your fellow chiefs, who know that what you say is true.56
In another example, Lut’kud’zius, of Gitanmaax, offers a critical historic perspective of
the Neek’t crest dispute:
What you said and done my brother, is just as you state it to be. There is much
more you have left out. This is the fourth pole that has been erected by the House
of Gaxsgabaxs and the group at Gitwangak is about extinct and the rights and
property have been absorbed into other Ganeda groups. This is done because we
are now in another age and do not follow the ways of our forefathers. What
should have been done was to come up to Gitsegukla and [to have] taken a
member of your House and re-establish the Neek’t group at Gitwangak. This
would have been done in olden times, but as we are now in a different life and
[they] have adopted any method they choose. But what you say is true. You have
shown us, your guests, that which belongs to you.57
Often the response speeches are used to subtly correct or modify the initial speaker’s
version of the adaawk, as Ganeda Chief Mool’xan, of Gitsegukla, did in her response to
Gisgahast Chief Hannamauxw when he claimed exclusive use of a crest. Hannamauxw
spoke as follows:
Chiefs, chiefs, wise men, men who are spokesmen for the chiefs. I am but a
young man, a child to come among you, and you have done me a great honor by
being here today in restoring to the memory of my uncles the crests that we
value. What you have seen erected today was brought from T’әmlax’am where
our people came from there. …
This crest they had adopted by having seen it emerge from the waters at
St’agiyoogan and he had adopted it as his personal crest. …only he had the right
and privilege of using the gэdәm ‘maxma˙xi. He used it as a house front painting
at T’әmlax’am and at Gidzagúk’la he incorporated it on his totem pole. Now this
is the tradition that we have which was related to me by my grandmothers and
56
57
Anderson & Halpin, supra note 8 at 140.
Ibid. [emphasis added].
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uncles and it is [in] their memory that I have erected this pole which you all have
helped me in. I have but showed you what is mine, that I have inherited.58
While Mool’xan affirmed the rights that were demonstrated by Hannamauxw, she also
“subtly augments and amends the information provided in his speech by pointing out that
many Houses share these histories, crests, and names”.59
And then Mool’xan spoke for the Gidzagúk’la people, “My son, my son, Chief
Han’amux, all that you have now told and shown to the chiefs here is true and
what you have shown and told is the truth. You have not borrowed any traditions
and these are your own. You did not mention that those on the Coast that are
using the same crests and names and traditions are but using yours and while
they are not doing anything wrong, they are but the descendents of your group.
So that you have no fear of using anything that belongs to anyone else. There will
be many among the new generation who will not know anything about
themselves and only men like you will have standing and be able to assert your
rights.”60
Another example of a response speech being used to subtly add to an adaawk is when
Chief Gwa’asłæ’am, Lax Gibuu, of Gitanyow, responded to Wiséks’ speech.
Gwa’asłæ’am was first careful to detail his own credentials and experience in his
response:
Chief Wiséks, Chief T’sibasá, also all the princes of the group. What we have
seen and heard today is great, and the traditions you speak of are the truth. What
you have shown us are exactly as I’ve heard of it before. I am an old man and
have very intimate knowledge of your House, so I can vouch that what you have
said is the truth. You have every right to be proud of your achievement and no
one here may deny anything you have said. Rather you have much more to add
that you have left out. But you will have the opportunity at some other time. You
have not told us that really all of the coast branches are from the original House
of Wiséks and T’sibasá of T’әmlax’am.61
Here we can note another feature of the response speeches – that the speaker will often
describe his or her experience and age in relation to the others present: “Those, like
Mool’xan, who speak at the feasts, emphasize their age and intimate knowledge of the
Houses, and it is the combination of age, expert knowledge, and diplomatic wisdom that
exemplifies what people now mean when they refer to someone as an elder.”62
(f)
Individual Agency and Collectivity
The interaction between Hlengwax and T’awa’lesk demonstrated that within Gitksan
society, Gitksan people are individuals, but they are also part of a kinship system. That is,
58
Ibid. at 172, 174 [emphasis added].
Ibid. at 20.
60
Ibid. at 19-20 [emphasis added].
61
Ibid. at 124 [emphasis added].
62
Ibid. at 19-20.
59
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while Gitksan people are understood to have agency, their actions and the consequences
of those actions are understood collectively. An individual’s actions, positive and
negative, are recognized as representing his or her House, and so any consequent injuries,
liabilities, and compensation caused by an individual are always collective
responsibilities.
For example, Hlengwax could easily have acted as an angry individual in response to
Gaxsgabaxs’ use of the Neek’t crest. However, the long-term consequences of such an
action would have been born by his House and the other Gitwangak Houses, and to a
lesser degree, by the Houses from Gitsegukla and Gitanyow. T’awa’lesk did not try to
stop Hlengwax; rather, he fully acknowledged and respected Hlengwax’s importance,
role, and agency. T’awa’lesk encouraged Hlengwax to make his own decision, but only
after considering the others who would be affected by that decision.
During the feasts and related activities other than the Gaxsgabaxs feast and pole raising,
Hlengwax was included and accorded the respect due to an important head chief of his
House. He was not slighted in any way, and it was possible for him to maintain dignity.
“[A]t the subsequent events in the series a great deal of public respect was accorded to
Hlengwax, and this may have been intended to reintegrate him into the group of
Sm’gigyet (chiefs) and to affirm his continued high status.”63 Thus the relationships
between the chiefs and Houses were protected.
(g)
Additional Observations
During the dispute, Hlengwax and Gaxsgabaxs did not speak to each other directly.
Rather, the negotiations were conducted through the respective niidihl of each party – in
this case, T’awa’lesk (Lax Skiik, Gitwangak) and Hagpegwotxw (Gisgaast, Gitanyow).
Other peoples’ thoughts regarding the dispute were expressed directly and indirectly. For
example, the Ganada of Gitwangak attended Gaxsgabaxs’ halayt ceremony, but did not
participate. Instead, they sat at the rear row, pointedly leaving their own seats empty.
Also at the Gaxsgabaxs halayt ceremony, the singers made reference to “people who use
false myths and traditions to speak of themselves,” thereby slighting the Gitwangak
chiefs.64
3.0
GITKSAN LAW AS CUSTOMARY LAW
If, in an effort to understand what customary law is and what lends moral force to
it, we consult treatises on jurisprudence, we are apt to encounter some such
explanation as the following … : “Customary law expresses the force of habit
that prevails so strongly in the early history of the race. One man treads across an
area previously unexplored, following a pattern set by accident or some
momentary purpose of his own; others then follow the same track until a path is
63
64
Ibid. at 19.
Ibid. at 77.
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worn.” … [I]t presents, I believe, a grotesque caricature of what customary law
really means in the lives of those who govern themselves by it.65
Before turning to legal reasoning in the next part of this paper, I want to establish Gitksan
law as a comprehensive system of customary law in order to avoid the pitfalls that Fuller
refers to as “inept theories about the nature of customary law”:66
According to Fuller, there are two kinds of law: enacted or authoritatively declared law,
and customary law. He writes, “Customary law is not the product of official enactment,
but owes its force to the fact that it has found direct expression in the conduct of men
toward one another”.67 Fuller describes customary law as a “language of interaction” that
is necessary for people to meaningfully engage in effective and anticipatory social
behaviour. In other words, it is this language of interaction that enables the creation of
social settings where people’s behaviours generally fall within predicable patterns and
known repertoires.68
Turning to the question of “law” in customary law, Fuller argues that a basic
characteristic of law is that it lays down general rules.69 He writes, “The law does not tell
a man what he should do to accomplish specific ends set by the lawgiver; it furnishes him
with base lines against which to organize his life with his fellows.”70 Customary law
provides an interactive framework for citizens to manage their lives within – and for in?
centralized states, this interactive framework actually forms the essential foundation for
the successful functioning of enacted law between the law-maker and citizen.71 That is,
without customary law to govern the relationships between the citizenry and the state, an
effective system of enacted law would not be possible.72
According to Scott Clark, there is no agreed definition of customary law, but there is a
general agreement that “customary law is not restricted to the retrospective study of
systems that no longer exist in their pure forms”.73 In other words, when considering
customary law, it is important to acknowledge that external forces and state law have
Fuller, The Law’s Precarious Hold, supra note 9 at 537-38.
Fuller, Human Interaction, supra note 3 at 15.
67
Ibid. at 1.
68
Ibid. at 2.
69
Ibid. at 23.
70
Ibid. at 24.
71
Ibid.
72
Ibid. Fuller has also written about the difficulties experienced by “new” nations that try to institute a
single system of rules over peoples of different cultures. In these instances, the lack of long established
state-influenced customary law (i.e., language of interaction) necessary to create and guide the relationships
between law-maker and citizenry, can easily result in political corruption. I think this perspective might be
usefully applied to aboriginal societies whose customary law has been disoriented by centralized powers
and authorities of the federal government and the colonial band structures. However, such an exploration is
beyond the scope of this paper. See Fuller, The Law’s Precarious Hold, supra note 9 at 542-45.
73
Clark, supra note 3 at 6.
65
66
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affected aboriginal societies, and vice versa.74 Clark suggests that customary laws could
include systems that
(a) remain unaffected by other legal systems; or
(b) have incorporated aspects of other legal systems or have in some way
been affected by other legal systems; or
(c) while remaining discrete, are subsumed under another, larger system; or
(d) are characterized by both (b) and (c).75
Interestingly, Clark explains that in the early research into Gitksan law, the Gitksan
decided to apply a modified version of Hoebel’s broader definition of law:
A social norm is legal if its neglect or infraction is regularly met, in threat or in
fact, by the application of physical force by an individual or a group possessing
the socially recognized privilege of so acting.76
The Gitksan modified Hoebel’s definition to read:
A social norm is legal if its neglect or infraction is regularly met, in threat or in
fact, by the application of physical force, ostracism or shame by an individual or
group possessing a socially recognized privilege of so acting.77
Fuller is critical of Hoebel’s definition of law because it defines the law by imperfection.
In other words, if a system works smoothly and without resort to force, does it forfeit the
right to be called law? Furthermore, does every infraction require the application of
physical force, or as suggested by the Gitksan, ostracism or shame? According to Fuller,
Hoebel’s definition not only lacks flexibility in potentially different contexts, it ignores
the “systematic quality of primitive law” that enables people to live together.78
At a practical, local level of work, the terms “law” and “customary law” must be defined
as closely as possible. For the Gitksan, this means developing an understanding of
customary law within the context of Gitksan history, culture, and experience.
Richard Overstall’s analysis identifies three types of Gitksan laws:
Jim Tully advocates a similar approach in “The Practice of Law-Making and the Problem of Difference:
One View of the Field” (Draft paper to be presented to the International Conference in Social and Political
Philosophy, University of Guelph, Guelph, Ontario in November 2004) [unpublished]. According to Tully,
we must move beyond the dominant “monological and finality orientation” that has been unsuccessfully
applied to conflicts over recognition of differences. Tully contends that we must develop a new orientation
that reconciles difference in a way that is grounded in dialogical civic freedom. He writes, “This orientation
consists in a turn to the study of the activities of struggling for and against a norm of recognition as the site
of civic freedom and of the transformation of citizen identity, rather than focusing exclusively on the final
resolution of such struggles” (at 2-3).
75
Clark, supra note 3 at 7.
76
E. Adamson Hoebel, The Law of Primitive Man (Cambridge: Harvard University Press, 1954) at 28,
quoted in Clark, supra note 3 at 10.
77
Peter Grant, “Recognition of Traditional Laws in State Courts and the Formulation of State Legislation”
in Bradford W. Morse & Gordon R. Woodman, eds., Indigenous Law and the State (Dordrecht: Foris,
1988), quoted in Clark, supra note 3 at 10 [emphasis added by Clark].
78
Fuller, Human Interaction, supra note 3 at 10-11.
74
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1. Primary laws that have to be followed in order to carry out one’s reciprocal
obligations to others (e.g., asking permission from a plant or animal before
taking it, never taking more than needed from the land, and always giving in
return).
2. Secondary laws that enable people to interpret the primary laws (e.g.,
governing the feast hall for the recreation and validation of relationships and
the succession of the host House, and allocating use rights and resources).
3. Strict laws, which are constitutional in nature in that they are concerned with
the legal framework of society and the maintenance of obligations to the land
(e.g., clan exogamy, inalienability of territory, and absolute liability for human
actions on the territory).79
Since Gitksan society is highly decentralized, there is no central enactment process for
laws, but there is a very formal aspect to Gitksan customary law nonetheless. One of the
many functions of the Gitksan adaawk is to recount the historic recognition of the various
types of laws, describe their adoption and incorporation into Gitksan society, and explain
the penalties suffered in the past by those who failed to adhere to the laws. According to
Clark, “In order to maintain historical continuity (and thereby to maintain social
integrity), it is necessary for House members to act in a manner consistent with the
ada’awk; that is, in a manner consistent with Gitksan … law”.80 The Gitksan witnesses
explained the central role of the adaawk and the laws they contained in their testimony
for the Delgamuukw trial.81
To properly consider customary law, Fuller suggests that it is necessary to ask, “What are
the processes by which these rules are created?”82 and, “What functions did that law serve
among those who brought it into being?”83 In his judgment, the central, and most
neglected, problem of customary law is interpretation. In other words, how does one read
an obligation into an act, or a pattern of acts?84
When considering Fuller’s questions regarding the processes of creating the laws and the
functions they serve, it appears that Gitksan laws emerge directly from people’s
experiences in the ancient past, and these are recounted in the House’s adaawk,
incorporated into behaviour norms, and interpreted for ongoing application to disputes
and the management of order generally. In other words, Gitksan customary law does not
derive from a centralized authority, but rather is generated by Gitksan interactions and
experiences – and embedded in Gitksan cosmology and ontology. According to Fuller,
79
Overstall, supra note 18 at 29.
Clark, supra note 3 at 8. Also see generally, Will Robinson, Men of Medeek and Wars of Medeek (Red
Deer, Alberta: Skytone Printing & Graphics, 2003), and Gisday Wa and Delgam Uukw, supra note 36.
81
Delgamuukw v. The Queen (March 8, 1991) Smithers 0843 (B.C.S.C.), transcript of the direct
examination of Chief Gyoluugyat [Mrs. Mary McKenzie] 13 May 1987 at 190-91 and transcript of the
direct examination of Gwaans [Mrs. Olive Ryan] 10 June 1987 at 1033.
82
Fuller, Human Interaction, supra note 3 at 5.
83
Ibid.
84
Ibid. at 15.
80
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“The reason that legal theorists have difficulty in dealing with customary law derives
from the fact that it does not emanate from some identifiable center of authority”.85
Arguably, it is not only legal theorists who have difficulty with customary law; aboriginal
rights case law indicates that many lawyers and members of the judiciary also struggle to
understand aboriginal customary law.
The function of Gitksan laws is to enable the Gitksan people to manage themselves and
their political, economic, and social institutions – maintain order, organize roles and
responsibilities, maintain reciprocal relationships, and manage land and resources.
Gitksan law meets the definition of Fuller’s customary law, as “rules of conduct that arise
directly out of the interaction of human beings, rules that enable men to anticipate the
interactional behaviour of their fellows in future encounters”.86
Fuller has emphasized the importance of interpretation so that people are able to read an
obligation into an act or a pattern of acts. Overstall has argued that the Gitksan have laws
of interpretation that enable them to interpret the primary laws to, among other things,
validate relationships, succession, and ownership. In examining the interactions,
consultations, and decisions reached in the Hlengwax and Gaxsgabaxs dispute, it appears
that the obligations to both parties were predominantly determined by the relationships,
that is, according to various roles and responsibilities of House membership, clan,
wilnadaahl, niidihl, niid’nt, marriage, and village.
Other aspects considered in the decision-making appeared to be the public good,
collective responsibility, and public face (prestige). This relational and reciprocal
dynamic is best demonstrated by the interchange between Hlengwax and T’awa’lesk,
Head Chief of the Lax Skiik from Gitwangak. T’awa’lesk cautioned Hlengwax against
taking action that would obligate others to take a public position in the dispute thereby
expanding the dispute. At a fundamental level, both Hlengwax and T’awa’lesk placed
their trust in the kinship system and in the collective wisdom of others to recognize and
act on their obligations and responsibilities, “If they do anything that is wrong, our
brothers from Gitwinhlgu’l will know, and they are wise people and will know what to
say.”87
4.0
LEGAL REASONING
The only formula that might be called a definition of law offered in these
writings is by now thoroughly familiar: law is the enterprise of subjecting human
conduct to the governance of rules. Unlike most modern theories of law, this
view treats law as an activity and regards a legal system as the product of a
sustained purposive effort.88
85
Fuller, Law as Instrument, supra note 9 at 93.
Ibid. at 92.
87
Anderson & Halpin, supra note 8 at 129-30.
88
Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1969) at 106 [Fuller, Morality],
quoted in Macleod-Cullinane, supra note 9 at 1.
86
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Sir Edward Coke advanced the concept of “artificial reason”, “reason that is brought into
being not by nature but by human effort and human art”.89 Basically, Coke conceived
English common law as “the embodiment of the reasoning of many generations of
learned men”.90 According to Gerald Postema, the original rationale behind Coke’s
development of artificial reasoning was “not to put distance between the law and the
practical reason of ordinary people, but to constrain the arbitrary incursion of political
will into the ordinary process of adjudication”.91
The reasoning in common law is one form of artificial reasoning because its form and
structure are designed for a public forum where the reasoning is open to challenge, and
because it is the “product of reflective practical experience, as opposed to untutored
individual intuition or a natural capacity for deductive reasoning exercised in abstraction
from the concrete details of ordinary life”.92 Postema describes six distinctive features of
artificial reasoning: (i) pragmatic focus on problem solving, (ii) self-conscious regard for
the public good, (iii) contextual competence of the adjudicators, (iv) system-resistant
nature, (v) discoursive – deliberative reasoning and argument in an interlocutory
context,93 and (vi) the reason is considered common or shared.94
The actual practice of artificial reason disciplines individual reasoning by requiring
adherence to a body of recorded argument and decisions, subjecting every argument to
public cross-examination, and demanding that the practitioners seek common judgment
despite disagreement and dispute.95 It is the shared common knowledge and practice that
is the essence of legal reasoning. In Postema’s words,
The use and acceptance of the law rested on a shared sense of its reasonableness
and historical appropriateness. It was thought insufficient that each member of
the law community believes the rules reasonable, or wise; they acted from the
conviction that this sense was shared, a sensus communis. This learned capacity
for reflective judgment – jurisprudence, we might call it – is a social capacity: the
ability to reason from a body of shared experiences with normative significance
to solutions for new practical problems.96
Considering again the Hlengwax and Gaxsgabaxs dispute, if we begin with Fuller’s adage
that the law is the enterprise of subjecting human conduct to the governance of rules,
there is no question that Hlengwax and Gaxsgabaxs were subjected to the governance of
a complex system of Gitksan rules. The next question is, can the highly complex
Harold J. Berman, “The Origins of Historical Jurisprudence: Coke, Selden, Hale” (1993-94) 103 Yale L.
J. [Berman, Origins of Historical Jurisprudence] 1651 at 1689.
90
Ibid. at 1690. Berman, Origins of Historical Jurisprudence.
91
Postema, Part II, supra note 9 at 2-3.
92
Ibid. at 10. Postema contends that the reason in common law is artificial because “it is the disciplined
practice of argument and disputation in a public forum – an art that had been called ratio artificialis long
before Coke gave it currency in common law jurisprudence” (at 10).
93
Ibid. at 7. Postema explains that he uses this obsolete seventeenth-century term because it captures the
interlocutory as well as the reasoning aspect of common law reason.
94
Ibid. at 6-9.
95
Ibid. at 8.
96
Ibid. at 9.
89
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interactive processes surrounding the 1945 dispute between Hlengwax and Gaxsgabaxs
be considered a form of Gitksan legal reasoning according to Postema’s criteria?
The Gitksan Feast and recounting of the adaawk are certainly formal public processes
where established protocols and standards govern the conduct for challenging the
speeches. As with common law reasoning, extensive preparations, discussions, and
negotiations are conducted prior to the public forum, so the actual feast is the final phase
of the business conducted. Hosts and the witnesses must fulfil defined roles and
obligations at the feast, and the witnesses are paid to remember the business conducted.
The actual process of dealing with the Hlengwax and Gaxsgabaxs dispute was collective
in that individuals who participated were fulfilling collective responsibilities according to
their respective multiple roles in the kinship network. In this way, the dispute about the
Ganuget crest of Neek’t was the collective business of many people who had either a
direct interest (e.g., Chiefs from Gitwangak) or a public interest (niidihl) in resolving it.
Anthropologist Richard Daly provides an astute description of the dynamics within the
interconnected, interactive Gitksan collectivity:
A group of mature siblings direct House affairs, while simultaneously engaging
in the daily affairs of their affines. Brothers take wives to their home villages and
raise their children there, yet for these brothers, it is the children of their sisters –
who generally have married out and live in other villages – who are the inheritors
of these brothers’ social legitimacy – his family history, regalia, stories, songs
and names. His own children, whom he had nurtured and raised, inherit from
their spatially distant mother’s brother. Thus every family is composed of people
with a plethora of crosscutting ties, stresses and interests.97
Several writers have emphasized the face-to-face nature of Gitksan interactions which the
small size of the communities and kinship units enables.98 Overstall, for one, has written:
“Legal interactions among Gitxsan are face-to-face between individuals who know each
other well. They are oral rather than written, which means that the exchange is identified
with both the giver and the receiver.”99 Effectively, this means an absence of anonymity
between any of the parties, which “makes unethical behaviour difficult and, when it does
occur, makes its consequences immediate and inescapable.”100 Interestingly, while
Hlengwax and Gaxsgabaxs certainly would have known one another, they do not deal
directly with one another during the dispute. Rather, the discussions and negotiations
were conducted primarily by the niidihl of each party. Both Hlengwax and Gaxsgabaxs
remained central to the dispute, but the dispute was managed and resolved by others
without face-to-face contact between the disputants.
Richard Daly, “Pure Gifts and Impure Thoughts” (Paper presented at the Ninth International Conference
on Hunting and Gathering Societies, Heriot-Watt University, Edinburgh, 2002), online: University of
Aberdeen http://www.abdn.ac.uk/chags9/1daly.htm at 7.
98
Ibid. Also see Overstall, supra note 18.
99
Overstall, ibid.
100
Ibid.
97
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Turning to the features of Postema’s artificial reasoning, it is arguable that the Gitksan
management of the Hlengwax and Gaxsgabaxs dispute contains similar distinctive
features. Postema’s first feature is a pragmatic focus on problem solving.101 The Gitksan
chiefs were utterly practical in their handling of the dispute. The basic law is that the
descendants of a House are entitled to use the crests. As a descendant of Neek’t,
Hlengwax had the right to use the Ganuget crest, but this was not an exclusive use.
However, Hlengwax claimed that he had an exclusive right to the crest and on the basis
of this claimed right, tried to prevent Gaxsgabaxs from using the crest. The chiefs around
Hlengwax and Gaxsgabaxs successfully prevented the dispute from escalating, enabled
Hlengwax to save face, supported Gaxsgabaxs to proceed with his pole raising, and
confirmed Gaxsgabaxs’ adaawk. Thus they worked out a pragmatic solution to the
problem.
Postema’s second feature is a self-conscious regard for the public good on the part of the
practitioners.102 The Gitksan chiefs effectively ensured that they maintained the overall
social and political order. For example, T’awa’lesk told Hlengwax that the Gitwangak
chiefs would support him, but that they would suffer political repercussions for doing so.
Hlengwax then had to consider whether he (and his House members) wanted to bear
responsibility for repercussions the Gitwangak chiefs might suffer on his behalf . The
careful and respectful way that Hlengwax was dealt with ensured that he remained an
active player in all the ongoing Gitksan business transactions.
Postema’s third feature is the contextual competence of the adjudicators. That is,
common law judges acquire a special capacity for reasoning and judgment derived from
years of immersion in the particularity of law.103 Judges do not simply look up rules and
figure out how to apply them to the facts of each case, but rather employ analogical
reasoning to the decision-making. However, the Gitksan do not have a separate group of
people charged with the discrete responsibility of adjudicating legal disputes. The
Gitksan chiefs who were engaged in the Hlengwax and Gaxsgabaxs dispute also had
other roles and responsibilities according to their rank and relationships. However, the
careful management and resolution of the dispute demonstrates a high level of
competence in understanding and interpreting Gitksan laws on a practical, case-study
basis. For the Gitksan, the laws are regarded as inhering in the entire cultural system and
its institutions; there is no separate, discrete discipline of law.
Postema’s fourth feature is the common law’s resistance to being reduced to a system of
axioms or a tidy set of principles from which to infer decisions.104 Clark explains that the
Gitksan people he interviewed had difficulty discussing their laws in the abstract,
preferring instead to use tangible and accurate examples to demonstrate the laws and their
application.105 This case-study approach to Gitksan law is also demonstrated in the oral
101
Postema, Part II, supra note 9 at 3.
Ibid. at 4.
103
Ibid.
104
Ibid. at 5.
105
Clark, supra note 3 at 11.
102
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recounting of the adaawk106 and in contemporary historical accounts such as Men of
Medeek and Wars of Medeek.107 The Gitksan approach resembles that described by
Postema: “Law is practice, not a theoretical representation of it.”108
Postema’s fifth feature is the discoursive nature of common law reasoning.109 In other
words, according to Postema a characteristic of common law reasoning is that it is
reasoning together so that the rules derive from the discussion rather than from just one of
the parties. As explained earlier, there are protocols and standards for public challenges to
the recounting of the adaawk at the feasts. For the Gitksan, these challenges are
exceedingly subtle in comparison with the types of arguments and cross-examinations
that take place in an adjudicative common law court. The overarching concern is the
maintenance of the Gitksan order, and individual behaviour is strictly controlled because
of the extensive crosscutting relationships and potential collective repercussions.110 Also,
the work and agreements regarding the business publicly conducted at the feast is
essentially completed beforehand in a much more private way. Despite the differences in
the processes of reasoning together, Gitksan reasoning appears to fulfill the basic
elements of Postema’s discoursive feature.
Postema’s sixth and final feature is that common law reasoning is considered common or
shared. In other words, the reasoning derives from shared understanding and a body of
normative experiences. According to Postema, judges are fluent in the language of
“human affairs and conversation”.111 While it is arguable that the Gitksan chiefs involved
with the Hlengwax and Gaxsgabaxs dispute were absolutely competent in the shared
Gitksan reasoning and cognizant of the normative Gitksan experiences, Gitksan law is not
considered separately from the rest of Gitksan life. Postema sums up common law
procedure: “The judge goes first … to the settled common law and custom of the realm,
then to authorities and decisions in past cases, and finally to ‘the common reason of the
thing’”.112 The Gitksan chiefs certainly considered Gitksan law, past cases, and the
common reason, but their reasoning formed an integral part of the whole both implicitly
and explicitly, and including the political, economic, and social aspects.
The Gitksan chiefs concluded the Hlengwax and Gaxsgabaxs dispute in a way that
created local coherence in the Gitksan system rather than a “broad theoretical coherence
of a single moral vision or systematic rationality.”113 The conclusion of the Hlengwax
and Gaxsgabaxs dispute now forms a part of the Gitksan “body of common
106
See generally, the transcripts of the Gitksan witnesses at the Delgamuukw trial.
Robinson, supra note 80.
108
Postema, Part II, supra note 9 at 6.
109
Ibid. at 7.
110
According to recent anecdotal information, some older Gitksan are extremely distressed that some of the
younger chiefs have exhibited by what the elders consider to be self-indulgent and careless behaviour at
feasts, and that other Gitksan people who have not been properly schooled in Gitksan protocols and laws
have recently demonstrated uncontrolled behaviours that are destructive to the Gitksan.
111
Postema, Part II, supra note 9 at 9-10.
112
Ibid. at 9 paraphrasing M. Hale, The History of the Common Law of England (Chicago: University of
Chicago Press, 1971) at 46.
113
Postema, Part II, ibid. at 10.
107
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experience”114 because it was dealt with in the formal Gitksan public process. In and of
itself, the Hlengwax and Gaxsgabaxs conclusion does not establish authoritative rules,
but it can be described as illustrating the proper Gitksan legal reasoning and exemplifying
“the process of reasoning within the body of [Gitksan] experience”.115
To conclude, while Gitksan legal reasoning can be considered “artificial” according to at
least five of the six definitional criteria set out by Postema, the processes involving
Gitksan reasoning must be contextualized against Gitksan culture, institutions, history,
and experiences. In other words, appreciating the wisdom of Gitksan jurisprudence “lies
in recognition of the internal point of view of participants in the legal system”.116
5.0
FUTURE CONSIDERATIONS
Arguably, the conclusion of the Hlengwax and Gaxsgabaxs dispute is an example of
Gitksan consent structured not vertically as with a centralized government, but
horizontally among Gitksan citizens on a decentralized basis. If we apply Hale’s notion
of consent, we find that (i) Gitksan law was effectively approved and integrated into a
body of law and into people’s daily lives, and (ii) approval of Gitksan law, as evidenced
in the management and resolution of the Hlengwax and Gaxsgabaxs dispute, is a
manifestation of Gitksan relationships with normative dimensions.117 The nature of this
consent is that Gitksan people agreed, both implicitly and explicitly, to live with how the
dispute was handled and with its outcome – and this continues to be affirmed in the feast
hall.
Admittedly, the Hlengwax and Gaxsgabaxs dispute is an example not of the application
of the notion of overall consent to the political foundation of Gitksan society, but rather
of the type of decision making that cumulatively enables people to live together
effectively despite continued disagreements. On this point, I agree with Jeremy Webber’s
scepticism as to the adequacy of the language of consent and whether consent can be
deliberately and explicitly provided to form the political basis of societies.118
There remains much work for the Gitksan if they are interested in adapting their legal
order to meet contemporary demands – as opposed to allowing its continued
displacement and obliteration. That such an approach is extraordinarily difficult is
demonstrated by early efforts in this direction. One example was a major effort to deal
with criminal justice charges and sentencing through the Gitksan kinship structure.119
114
Ibid. at 17.
Ibid.
116
Postema, Part I, supra note 1 at 155.
117
Ibid. at 24.
118
Jeremy Webber, “Challenges of Consent”, (Paper prepared for the Inaugral 2004 Conference of the
Consortium on Democratic Constitutionalism: “Consent as the Foundation for Political Community”),
online: University of Victoria http://www.law.uvic.ca/demcon/2004_program.htm at 2.
119
Department of Justice Canada, Unlocking Aboriginal Justice Program: A Program Review and
Evaluation Design by Thérèse Lajeunesse & Associates (Ottawa: Research, Statistics and Evaluation
Directorate, Policy Sector, 1995) [unpublished].
115
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Another example was an aborted attempt, begun in 1980, to codify Gitksan law.120
Serious questions arise as to whether codification would undermine the flexibility of
customary law and its applicability,121 and whether codification would actually remove
customary law from the people by placing it in the hands of legal experts. Both these
questions have equal weight in any consideration of establishing and applying customary
law in the form of contemporary institutions.122
It is evident that rigorous and critical work to articulate aboriginal customary law and
properly situate aboriginal legal orders is also necessary for aboriginal peoples’ legal and
political interactions with the state – be it through litigation or through negotiation. When
judges are unable to appreciate the complexity of aboriginal cultures – and in particular,
aboriginal legal systems – aboriginal claims to rights and title are seriously undermined.
For example, in a recent British Columbia Supreme Court decision, Lax Kw’Alaams v.
Minister of Forests & West Fraser,123 the Court was confused by the evidence put before
it and did not understand the plethora of Tsimshian political and legal entities (e.g., tribes,
bands, tribal councils, Houses, clans, or other organizations). Shabbits J. was not able to
discern the coherence of the overall Tsimshian claims through the separate affidavits
submitted as evidence by the interveners and petitioners. In other words, all the
Tsimshian parties described the same Tsimshian territories, Houses, clans, and tribes, and
they were all talking about the Tsimshian, but the Court saw each of these as entirely
separate claims by different aboriginal groups.124 In fact, the real issue lay in determining
how Tsimshian law, authority, history, and ownership should be dealt with today,
specifically in the context of the West Fraser licence to log Tsimshian territory.
Lax Kw’Alaams epitomizes many of the things that can go wrong when aboriginal
peoples go to court and should serve as a cautionary tale to any aboriginal people
considering litigation.125 The Court’s decision sets a negative legal precedent that the
Tsimshian (and other aboriginal peoples) can only undo by appealing the decision – a
costly and uncertain undertaking to say the least.126 This case makes obvious the serious
need for the Tsimshian [and other aboriginal peoples] to not only sort out internal issues
and conflicts, but also to develop a coherent and integrated working description of
120
Clark, supra note 3 at 21.
Ibid. at 22. Clark draws on the objections to codification put forward in Robert J. Gordon & Mervin J.
Meggitt, “The Customary Law Option” in Gordon & Meggitt, Law and Order in the New Guinea
Highlands (Hanover: University Press of New England, 1985).
122
Fuller’s cautions regarding new nations and the problems created by the lack of state-oriented customary
law would apply to the establishment of centralized contemporary legal institutions. See Fuller, Law’s
Precarious Hold, supra note 9 at 542-45.
123
Lax Kw’Alaams Indian Band v. Minister of Forests & West Fraser Mills (2004) B.C.S.C. 420, online:
Courts of British Columbia <http://www.courts.gov.bc.ca/Jdb-txt/SC/04/04/2004BCSC0420.htm> [Lax
Kw’Alaams].
124
The Tsimshian are closely related to the Gitksan.
125
This is not a thorough analysis of the decision in Lax Kw’Alaams. Unfortunately, there are also many
other examples of poorly considered aboriginal rights decisions, because much of aboriginal rights
jurisprudence is reactionary. That is, an aboriginal rights defence is only marshalled after an aboriginal
person has been charged with an offence (which is usually related to fishing, hunting, and trapping, but
might also include gambling, false imprisonment, discrimination, etc.).
126
People must assess whether to salvage this case or move on to alternative political or legal strategies.
121
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Tsimshian institutions, customary law, and legal order before continuing with further
litigation, especially with those legal actions relating to aboriginal title and rights.
Critically applying Fuller’s definitions of customary law to any self-government
development will help the Gitksan and other aboriginal groups to avoid inadvertently
“dumbing down” their customary law with the inept theories referred to by Fuller.127 Also
helpful to working with aboriginal customary law is Berman’s distinction between two
approaches to history: One school of legal theory conceives of history as “a series of
fixed points – in law, fixed rules and decisions – to be preserved and reiterated”. The
other school of legal theory conceives of history as “a process of adaptation of past
experience to changing needs”.128 The latter approach allows for continued flexibility and
adaptation of customary law to meet current situations and challenges.
There is much wisdom in the Gitksan legal reasoning process – about relationships,
consent, disputes, power, and change – that is applicable, and necessary today. The
biggest challenge for the Gitksan and other aboriginal groups is to maintain political
strength and cultural integrity while responding to the demands of external governments
and moving beyond colonialism.
<gitksan legal reasoning demcon sept 29-04>
127
128
See generally, Fuller, Human Interaction, supra note 3.
Berman, Origins of Historical Jurisprudence, supra note 89 at 1693.
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