AYOOK: GITKSAN LEGAL ORDER, LAW, AND LEGAL THEORY by Valerie Ruth Napoleon LLB, University of Victoria, 2001 A Dissertation Submitted in Partial Fulfillment of the Requirements for the Degree of DOCTOR OF PHILOSOPHY in the Faculty of Law © Valerie Ruth Napoleon, 2009 University of Victoria All rights reserved. This dissertation may not be reproduced in whole or in part, by photocopy or other means, without the permission of the author. ii Supervisory Committee AYOOK: GITKSAN LEGAL ORDER, LAW, AND LEGAL THEORY by Valerie Ruth Napoleon LLB, University of Victoria, 2001 Supervisory Committee Dr. John Borrows, Faculty of Law Co-Supervisor Dr. John McLaren, Faculty of Law, Professor Emeritus Co-Supervisor Hamar Foster, Faculty of Law Faculty Member Dr. Michael Asch, Department of Anthropology, Professor (Limited Term) Outside Faculty Member Dr. Wendy Wickwire, Department of History, School of Environmental Studies Outside Faculty Member iii Abstract Supervisory Committee Dr. John Borrows, Faculty of Law Co-Supervisor Dr. John McLaren, Faculty of Law, Professor Emeritus Co-Supervisor Hamar Foster, Faculty of Law Faculty Member Dr. Michael Asch, Department of Anthropology, Professor (Limited Term) Outside Faculty Member Dr. Wendy Wickwire, Department of History, School of Environmental Studies Outside Faculty Member Conflict is an integral and necessary aspect of human societies. The challenge is not to prevent conflict or even to resolve it, but rather, to effectively manage it so that it does not paralyse people. Historically, Gitksan society managed conflict through their legal traditions and governance practices, and I argue that it is the undermining of this conflict management system that has generated the pervasive conflicts among the Gitksan people today. While it is not possible to attribute the current internal conflict experienced by the Gitksan to the major legal action of Delgamuukw (inclusive of the several decades of preparation, levels of litigation and court decisions, and political aftermath), it was, and arguably still is, a very powerful force and influence in the lives of the Gitksan people. The extensive present-day internal conflicts in Gitksan communities must be reflexively appreciated within the complex of power relationships between the Gitksan people and Canada, and between Gitksan law and Canadian law. In Canada and beyond, Delgamuukw and the Gitksan were (and still are) part of a much larger continuum of political, social, and economic change as well as local economic shifts involving natural resources. The Gitksan people‘s legal traditions enabled them to effectively manage themselves in a complex, decentralized, non-state society. Gitksan oral histories and other records such as the songs, crests, kinship roles, and traditions contain implicit and explicit law both as iv content and in their architecture as cognitive units that enable the sorting of information and dynamic intellectual processes of legal reasoning by analogy and metaphor. Gitksan legal traditions include intentional and deliberative collective processes to change law over time, transform implicit law into explicit law, and create legal precedent and a formal memory archive. These legal traditions are integral to the Gitksan people‘s ongoing political perseverance and are the basis for the enduring connections to their territories. Moreover, the legal traditions are part of the dynamic political and social change processes that enable the Gitksan to be Gitksan in the past as well as in the present – complete with all the contested, pragmatic, entangled, contemporary forms of Gitksan politics. A deeper, critical, and more complex appreciation of Gitksan legal traditions is necessary if they are to be practically useful to the Gitksan people in today‘s world for application to today‘s issues. I have taken the position that Gitksan conflict management processes must be grounded within a substantive and critical articulation of Gitksan laws and legal practices, legal order, and legal theory. I propose a Gitksan legal theory that derives from a substantive treatment of the legal order, laws, and law cases. I draw resources from both western and indigenous legal theorists to explore, describe, and analyse Gitksan legal traditions. My proposed Gitksan legal theory comprises a broad overview, general principles, normative principles, and general working principles. While my work is based on a number of Gitksan law cases, my theoretical approach may be extrapolated to other non-state, decentralized peoples. v Table of Contents Supervisory Committee ii Abstract iii Table of Contents v List of Tables viii List of Figures viii Acknowledgments ix Dedication x Glossary of Gitksan Terms xi CHAPTER 1 Beginning 1 1.1 Introduction 1 1.2 Gitksan Primer 4 1.3 Background 10 1.4 Chapter Briefs 11 1.5 Chapter Conclusion 14 CHAPTER 2 Methodology 16 2.1 Introduction 16 2.2 Placing My Research in the Scholarship on Indigenous 24 Legal Traditions 2.3 Drawing From Legal Theory Scholarship 38 2.4 My Learning – Research Process 40 2.5 Chapter Conclusion 44 CHAPTER 3 It is in the Earrings: Articulating Gitksan Law in the Trial 49 Transcripts 3.1 Introduction 49 3.2 Trial Transcripts 53 3.2(a) Coherence 53 3.2(b) Everything is Law 62 3.2(c) Law Embedded in Narrative 67 3.2(d) Historical Duress 72 3.2(e) Gitksan Society as Dynamic 91 3.3 Selected Gitksan Cases 93 3.3(a) Legitimacy of Authority 96 3.3(a)(i) Stanley Williams, Gwis Gyen 99 3.3(a)(ii) Pete Muldoe, Gitluudahlxs 101 3.3(a)(iii) Edith Gawa, Yahl 102 3.3(a)(iv) Mabel Forsythe, Wet’suwet’en 103 3.3(a)(v) Roddy Good, Ax gwin desxw 104 3.3(a)(vi) General – Feast Attendance 106 3.3(b) Xsiisxs (Compensation/Cleansing) 107 3.3(b)(i) Accidental Death by Motor 110 Vehicle 3.3(b)(ii) Olive Ryan, Hanamuxw 110 3.3(b)(iii) David Wells, Sakum Higookw 111 3.3(b)(iv) Yagosip 112 vi 3.3(b)(v) Dim Xsaan 113 3.3(b)(vi) Art Mathews, Tenimgyet 114 3.3(b)(vii) Samuel Brown, House of 115 ‘Niikyap 3.3(b)(viii) House of ‘Wiilitxsw 116 3.3(b)(ix) Art Mathews, Tenimgyet 118 3.3(b)(x) Bilaatx 119 3.3(b)(xi) Gubihl gan 121 3.3(b)(xii) Yal and Guxsan 123 3.3(c) Disputes 124 3.3(d) Corrections in the Feast Hall 128 3.3(e) Ts‘imil Guut 131 3.3(f) Summary – Law Case Table 137 3.4 Glimmers of Structure: Gitksan Legal Order 146 3.4(a) Embedded and Implicit Law 147 3.4(b) Internal Tensions 148 3.4(c) Focus on Compensation versus a Focus on 156 Guilt 3.4(d) Public Witnessing and Accountability 160 3.4(e) Cosmology and Concept of Self: Beneath 164 Gitksan Law 3.4(e)(i) Reincarnation 165 3.4(e)(ii) Relationship to Territories 168 3.4(e)(iii) Relationship with Non-Human 175 Life Forms 3.5 Chapter Conclusion 177 CHAPTER 4 Learning from the Interviews 181 4.1 Introduction 181 4.2 Interviews 184 4.3 Backdrop 186 4.4 My Expectations 190 4.5 Conflict – Past and Present 196 4.6 The Nature of the Gitksan Legal Order 213 4.7 Analysis 220 4.7(a) Maps 222 4.7(b) Reification of the House as a Corporation 225 4.7(c) Resistance to Hierarchy 230 4.7(d) On the Land 234 4.7(e) Larger Political Project 235 4.7(f) Turning to the Canadian Legal System 236 4.8 Chapter Conclusion 237 CHAPTER 5 Gitksan Legal Theory 240 5.1 Introduction 240 5.2 Drawing from Positivist Legal Theory 245 5.3 Law from Social Interaction 261 5.3(a) Implicit Gitksan Law 264 vii 5.3(b) Implicit Law to Explicit Law 270 5.3(c) Agency in the Gitksan Legal Order 281 5.4 Resources from Indigenous Legal Scholars 285 5.5 A Gitksan Legal Theory 294 5.5(a) Overview 295 5.5(b) General Concepts 301 5.5(c) Normative Principles 306 5.5(d) General Working Principles 308 5.6 Chapter Conclusion 310 CHAPTER 6 Returning to the Research Questions 313 6.1 Introduction 313 6.2 Research Question: Conflict Management Findings 317 6.3 Main Research Question: Indigenous Articulation 324 Theory 6.4 Case Study: Suu Dii 329 6.5 Conclusion 332 APPENDIX A Information Handout 334 APPENDIX B Interview Guide 336 APPENDIX C Consent Form 337 APPENDIX D Maps 339 D-1 Provincial Map 339 D-2 Gitksan Reserves 340 D-3 Gitksan House Territories 341 D-4 Wet‘suwet‘en House Territories 342 BIBILIOGRAPHY 343 viii List of Tables Summary – Law Case Tables 137 - 145 List of Figures D – 1 Provincial Map 339 D – 2 Gitksan Reserves 340 D – 3 Gitksan House Territories 341 D – 4 Wet‘suwet‘en House Territories 342 ix Acknowledgments Many thanks to both my co-supervisors for their encouragement, invaluable critical feedback, and endless patience. Thanks to my committee members for agreeing to work with me and for maintaining faith. Special thanks to Dean Ellen Bielawski (Faculty of Native Studies) and Dean David Percy (Faculty of Law) for creating the space for me to complete this research and writing. This research project would not have been possible without the belief, generous support, conversations, questions, and challenges of many good friends and colleagues – Richard Overstall, Don Ryan, Neil Sterritt Jr., Katie Ludwig, Glen Williams, Anna Yeatman, Jim Tully, Karen Aird, Janna Promislow, Karen Davies, Gordon Christie, Peter Grant, Jeremy Webber, Andreé Boisselle, Richard Daly, Maxine Matilpi, Angela Cameron, Johnny Mack, Maria Campbell, Miranda Johnson, Merle Alexander, Ardythe Wilson, Lisa Glowacki, Jennifer Haslett, Christine Black, Kirsten Anker, Erica Ball, Tracey Lindberg, Karen McKenzie, Constance Backhouse, Brenda Parlee, Isabel Altamirano, Sari Graben, Chris Andersen, Albert Peeling, Mark Stevenson, Jane Smith, Karen Erickson, and Nettie Wild – thank you all.