DELGAMUUKWAND THE PEOPLE WITHOUT CULTURE: Anthropology and the Crown by Dara Culhane B.A. (Hons), Simon Fraser University, 1985 THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY in the Department of Sociology and Anthropology O Dara Culhane 1994 SIMON FRASER UNIVERSITY July 1994 All rights reserved. This work may not be reproduced in whole or in part, by photocopy or other means, without permission of the author APPROVAL NAME : Dara Culhane DEGREE : Doctor of Philosophy TITLE OF THESIS: DEU;AEIUUKW AND THE PEOPLE WITHOUT CULTURE: Anthropology and the Crown EXAMINING COMMITTEE: CHAIR : Dr. Gary Teep: I Dr. Noel l~~ck Senior Supervisor Professor of Anthropology - vr. Michael Kenny , , Associate Professor of ~nthrowogy -. Dr. Arlene McLaren Associate Professr -f Sociology ,pd<yah Angw - Internal External Examiner Associate Pmfessom Sociology - Dr. Robert Paine External Examiner Henrietta Harvey Professor of Anthropology Memorial University of Newfoundland fDat Ap ro ed I hereby grant to Simon Fraser University the right to lend my thesis, project or extended essay (the title of which is shown below) to users of the Simon Fraser University Library, and to make partial or single copies only for such users or in response to a request from the library of any other university, or other educational institution, on its own behalf or for one of its users. I further agree that permission for multiple copying of this work for scholarly purposes may he granted by me or the Dean of Graduate Studies. It is understood that copying or publication of this work for financial gain shall not be allowed without my written permission. Title of Thesis1ProjectlExtended Essay DELGAMUUKW AND THE PEOPLE WITHOUT CULTURE: Anthropoloqy and the Crvwn Author: + - (Signature) Dara Cul hane (Name) June 30, 1994 (Date) ABSTRACT This thesis examines the response of the British Columbia and Canadian judiciary to Aboriginal efforts to obtain legal recognition of Aboriginal title and rights, and the role played by anthropology and anthropologists in this historical process. Specifically, the thesis provides a detailed case study of the longest and costliest Aboriginal title litigation in Canadian history: the Gitksan and Wet'suwet'en case, also known as Delgamuukw et a1 v. R.. This case is analyzed within the historical and political context of the relationship between Aboriginal and non-Aboriginal peoples in Canada. Drawing on current theoretical work in the fields of anthropology and law, and cultural critique, the thesis argues that law and legal discourse are embedded in historical and contemporary relations of power and resistance, and shaped by the cultural and political context in which they are practiced. Law is analyzed as a form c: socio-cultural reflection, and the courtroom as a site of political struggle. A cr~tical analysis of the use of the theories and data of social science to legitimate various ideologies and strategies in the legal forum provides an original contribution to the theoretical and substantive study of Aboriginal and non-Aboriginal relations in Canadian society, and to theoretical development within the discipline of anthropology. Anthropologists have served as researchers and as expert witnesses on behalf of both the Crown and Aboriginal litigants. This thesis focuses on theoretical analyses and substantive evidence presented on behalf of the governments of Canada and British Columbia to support the Crown's claims and counter-claims to land title and sovereignty as against Aboriginal peoples. That is to say, this thesis locates itself within the field of anthropological analyses of "western" cultures, rather than the traditional anthropological focus on the representation of Aboriginal cultures. The methodology adopted is based in a critical hermeneutic, or dialectical, reading of the texts of anthropologists' opinion reports submitted to courts, transcripts of trials, and reasons for judgment. The thesis argues that an examination of the theory and practice of Canadian law in relation to Aboriginal peoples and Aboriginal land title from a critical anthropological perspectiveilluminates the inter-relationship between culture, power, history, and law. In conclusion it is argued that anthropologists may make a valuable contribution to disciplinary and public debates on Aboriginal issues by turning our attention to an analysis of Canadian society's relationship to Aboriginal peoples. This thesis is dedicated to my mother, Claire Culhane, who taught me which side of the fence to stand on. ACKNOWLEDGEMENTS I would like to express my sincere appreciation for the support provided by my supervisory committee, particularly my senior supervisor, Dr. Noel Dyck, in the preparation of this thesis. The Office of the Gitksan and Wet'suwet'en Hereditary Chiefs granted me access to transcripts and other trial documents pertaining to Delgamuukw v. R., for which I am grateful. Many relatives and friends contributed substantial time, energy and patience to this endeavour. In particular, I would like to acknowledge the assistance of Fran Gillis, Renee Taylor, Dan Gillis and Miki Maeba, material and otherwise. Special thanks are due my daughter, Lori Speck; my son, Carey Speck; and'my mother, Claire Culhane for their unfailing patience, faith and affection. TABLE OF CONTENTS Page ii APPROVAL .. ABSTRACT 111 DEDICATION v ACKNOWLEDGEMENTS vi CHAPTER I: INTRODUCTION 1.0 SETTING OUT THE ISSUES 1.1 LOCATING MY "SELF" IN MY WORK CHAPTER 2: THROUGH THE LOOKING GLASS DARKLY: CROWN TITLE IN HISTORY AND LAW 79 2.0 IN THE BEGINNING 79 2.1 ABORIGINAL ABORIGINAL TITLE 86 2.2 THE WHITE MAN'S LAW 9 1 2.3 TIME IMMEMORIAL 9 3 2.4 RULE BRITANNIA 97 2.5 BRITANNIA RULES THE WAVES 100 2.6 BRITANNIA WAVES THE RULES 103 2.7 THE INDIAN MAGNA CARTA 108 2.8 ENOUGH AND AS GOOD 111 CHAPTER 3: BRITISH LAW FOLLOWS ITS SUBJECTS 3.0 THE COLONIAL PERIOD IN BRITISH COLUMBIA 3.1 A NATION IS BORN 3.2 OUTLAWING CULTURE 3.3 SURVIVAL CHAPTER 4: JUSTICE ON TRIAL 4.0 TWO RIFLE SHOTS 4.1 CALDER 4.2 BAKER LAKE 4.3 GUERIN 4.4 BEAR ISLAND 4.5 SPARROW CHAPTER 5: THE TRIAL 5.0 INTRODUCTION 185 5.1 ORAL TRADITION 5.2 ANTHROPOLOGISTS AND ANGELS 5.3 WHAT IS HISTORY? CHAPTER 6: AND HERE'S TO YOU DR. ROBINSON 6.0 JUDGING EXPERTISE 6.2 THE JOB BEGINS vii 6.3 DOING WHAT CAN'T BE DONE 6.4 NO REASON TO TRAVEL 6.5 MOUNTAINS AND THINGS 6.6 VISIONS AND SUPERCHIEFS 6.7 THE MAGIC OF COMMODITY FETISHISM 6.8 1 OWN, THEREFORE I AM CHAPTER 7: AFTER THE JUDGMENT 7.0 TESTING, TESTING ... 1,2, 3,4, 5! 7.1 THE CROWN CHANGES HEADS 7.2 POLITICAL NEGOTIATIONS CHAPTER 8: CONCLUSION APPENDIX 1 BIBLIOGRAPHY CHAPTER 1: INTRODUCTION 1.0 SETTING OUT THE ISSUES It is the law that ab al rights exist at the "pleasure of the Crown," and they may be extinguished wheneveithe intention of the Crown to do so is clear and plain ...The plaintiffs' claims for aboriginal rights are accordingly dismissed. (Reasons for Judgment, Delgamuukw v. R., 1991. p.ix) Thus spake Chief Justice Allen McEachern of the British Columbia Supreme Court rendering his long awaited judgment in "the Gitksan and Wet'suwet'en case." The case had been four years at trial, beginning in Smithers, British Columbia on May 11, 1987, and concluding in Vancouver on March 8, 1991. This thesis is an inquiry into the response of the Canadian judiciary to challenges put forward by indigenous peoples for legal recognition of Aboriginal title, the part played by anthropology and anthropologists in this process to date, and what roles anthropologists might play in this forum in the future. Specifically, it sets out a detailed examination of the longest and costliest land title litigation in Canadian history: "the Gitksan and Wet'suwet'en case," also commonly referred to as "the Delgamuukw case," or "Delgamuukw v. R." The trial of Delgamuukw, also known as Ken Muldoe, suing on his own behalf and on behalf of all the members of the House of Delgamuukw, and others v. Her Maiesty the Queen in Right of the Province of British Columbia and the Attornev-General of Canada was a conflict over 22,000 square miles of what we now call British Columbia: its land, its resources, and the way of life of its people. Thirty-five Gitksan and 13 Wet'suwet'en hereditary Chiefs, the "Plaintiffs," brought a petition to the Supreme Court of British Columbia seeking a declaration that, ...from time immemorial they and their ancestors have occupied and possessed approximately 22,000 square miles in north-west British Columbia ("the territory"), and that they or the Indian people they represent are entitled, as against the province of British Columbia, to a legal judgment declaring: (a) that they own the territory; (b) that they are entitled to govern the territory by Aboriginal laws which are paramount to the laws of British Columbia; (c) alternatively, that they have unspecified Aboriginal rights to use the territory; (d) damages for the loss of all lands and resources transferred to third parties or for resources removed from the territory since the establishment of the colony; and (e) costs (Reasons, 1991:vii). The main evidence in support of the Gitksan and Wet'suwet'en claim was presented by Chiefs and Elders through telling their two particular kinds of oral history: the Gitksan adaawk and the Wet'suwet'en kungax. These oral histories document ownership of lands and resources and include sacred reminiscences about ancestors, histories, trails and territories. Their performance includes narratives, songs and dances. The evidence of the Chiefs and Elders was supported by expert witnesses in the following fields: cartography, palaeobotany, geomorphology, forest ecology, fishery biology, ethnoarchaeology, linguistics, historical geography, anthropology and history.