The powerful aura of Indigenous law

Indigenous Intellectual Property: An Interrupted Intergenerational Conversation
by Val Napoleon, Rebecca Johnson, Richard Overstall and Debra McKenzie (eds.) 

Toronto: University of Toronto Press, 2024
$32.95  /  9781487558222

Creating Indigenous Property: Power, Rights and Relationships
by Angela Cameron, Sari Graben and Val Napoleon (eds.)

Toronto: University of Toronto Press, 2020
$45.95  /  9781487523824

Reviewed by Richard Butler

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The two books under review were published under the scholarly leadership of Val Napoleon of the University of Victoria’s faculty of Indigenous law. They are written by experts and intended for specialists.

These two books focus variously on a combination of critical legal theory, social advocacy, and the law itself—Aboriginal law and Indigenous law.¹ They are clearly targeted at those who are studying the fine points of those subjects. Most of their contents lie beyond non-specialist readers’ knowledge or interest. Certainly, taken as a whole, these books are not for everyone.

Why, then, do I bring them to the attention of readers of The British Columbia Review?

When the Supreme Court of Canada made its declaration of Aboriginal title in Tsilhqot’in, that must have caused at least some British Columbians to pause and wonder what it would mean, in law or in practical terms, for them personally.²

Many British Columbians likely thought that exclusive Aboriginal title could never happen in the parts of British Columbia where we lead our daily lives. How could it, some scoffed, when the overlapping claims of Indigenous Peoples comprise substantially more than the total land mass of the province. More thoughtfully, any such declaration of exclusiveness made by a Canadian court must surely be predicated upon ultimate Canadian jurisdiction, sovereignty, and law. Our own rights will be protected by our own laws.

For many non-Indigenous British Columbians, the issues of Aboriginal title and Indigenous sovereignty thus remain akin to the seismic “big one”—bound to happen sooner or later but hopefully not in our lifetimes and hopefully somewhere else along the Coast.

But make no mistake—the incorporation into federal and British Columbia laws of the principles of the UN Declaration of the Rights of Indigenous Peoples and the recent recognition of Haida title and the Heiltsuk establishment of a constitution are not merely rumblings. They and other recent events represent a tectonic shift that will have profound legal and social implications. The results need not be catastrophic, as some might fear, but they will certainly be disruptive.

There are four chapters in these two books which give special insight into how Indigenous sovereignty and modern laws might work in 21^st century British Columbia.³ Those four chapters show us what certain traditional Indigenous laws may have been like in actual operation: that is,

• laws of sharing based on kin relationships;
• laws of select exclusion from access to cultural resources like land and knowledge;
• laws of contribution in order to participate in and reinforce kin-based social structures;
• laws of personal conduct within kin-based social contexts.

That in turn will let us imagine how modern Indigenous laws enacted by modern Indigenous Nations may be designed to reflect the aura of authenticity derived from traditional laws and to carry forward authority in their application. Not the semblance of authenticity but its essence.⁴

That authenticity may come to serve as a basis for the modern laws’ legitimacy, authority, and respect among all those who will be subject to them—applying not only to a Nation’s own people on or off the reserve; not merely to resource companies wishing to log or mine or fish or generate electricity on their traditional territories; not simply within those territories; but also inter-governmentally.

For myself, I am most interested in this last point: why would a particular First Nation—whose own rights and interests may well be affected by a neighbouring Nation’s governance and laws—be willing to respect and follow that other Nation’s laws? How will that work out in practice? Where will international comity⁵ be found? The source of an answer, I believe, may well lie in that aura of authenticity.

In the first of our four chapters,⁶ Law Professor Sarah Morales and Anthropologist Brian Thom introduce us to the Island Hul’qumi’num people, their principle of sharing and its connections with snum’uyulh (our ways of being on Mother Earth).

Our authors describe how this worked in daily operation through hwunutsaluwum (family groups) in which membership was flexible, “emerging less from rigid social ordering, and more from the actual practice of ordered kin relations … [potentially involving] a broad range of people who live in different areas throughout the Coast Salish world.” (125) As we next see, this first principle of “practised affiliation” lays the groundwork for people to choose where to live, the kin group(s) with whom they associate, and the possibilities of “multi-nation affiliation” as a source and foundation for common laws, (126-127) and rules respecting closure of sites to outsiders, with serious consequences for those who do not recognize and respect local protocols and laws. (130; see 134-136 for examples) Trespass by uninvited strangers was thought to be the same as theft. There was a system of laws “understood throughout the region under which ‘any trespasser was expected to be killed and buried on the spot by the first armed Native who saw him.” Death was not the only historic solution. A trespass dispute might be resolved by gifts of presents to the offended landowners. (137)

In modern-day British Columbia, the old remedies would of course no longer apply. Nevertheless, the principles of limited sharing could well be a suitable touchstone for a Nation designing modern laws relating to land and resource use. Such laws would be honoured both by its own people and by outsiders as well because that is the way relations had traditionally been governed, the way things had traditionally been done. A neighbouring Nation, relying on its own traditions as the foundation for its own sovereignty and modern laws, would logically be bound by parallel traditions of the other Nation. Conflicts of modern laws would not be resolved by warfare, as before, but possibly by the development of what a Euro-Canadian lawyer might recognize as rules of public and private international law.

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Turning next to Debra McKenzie’s chapter in the Intellectual Property book,⁷ we are taken away from the coast and up onto the interior plateau and the vast stretches of lands of the Secwépemc Peoples.

In that chapter, McKenzie describes the link between lands, resources, and intangible assets. She says “control of outsiders’ access to local knowledge or intellectual property by local peoples may be viewed as an integral part of territorial authority.” (41) She makes her point by reference to  ancient stories which are the “societal/cultural expressions which form the basis for identification of the community and community values.” (48) She uses a seven-part story—Coyote and the Hosts—to describe what happens to mischievous attempts to misappropriate.

Apparently, Coyote the Trickster is always hungry—metaphorically for other peoples’ powers and resources. McKenzie thus tells of Coyote meeting with Fat Man, who cooked his own back fat over the fire and offered a slice of it for Coyote to eat. But when Coyote thought he’d try the same with his own back, he lit himself on fire. The point of law is that a good host offers the best part of himself to share but an outsider does not have permission to use the knowledge he has witnessed. (45) Something similar happens when Coyote visits the home of Fish-Oil Man, Beaver-Man, and Kingfisher-Man. Each time, Coyote tries and fails to imitate his host in gathering food. (47)

The final episode of the Hosts story is particularly intriguing for present purposes of imagining how modern Indigenous laws may develop in relation to resource use by outsiders. It tells how Coyote, as a proto-typical acquisitive outsider, could lawfully gain access to a community’s knowledge and resources, to the benefit of all.

In that episode, Coyote is floating down a river in danger of drowning. He seeks to save himself by transforming into a plank of wood. Downstream, he gets stuck in a fishing weir belonging to two unmarried sisters. After a time with them, Coyote goes out one morning, breaks the weir, and conducts the salmon up the Fraser River to its source and afterward up the Thompson River. As he goes along he “clear[s] the waters of the rivers of obstructions, and arrange[s] the banks so that it should be easy for people to fish.” (52)

So, in the final episode of the Hosts story, according to McKenzie,

… Coyote improves the lives of the broader Secwépemc society …. However, he was always a stranger, and at the end of the story Coyote returned to his country. It may be that strangers sometimes have something of value to offer…. The legal key here is reciprocity. Knowledge was never given up freely to those outside the community. (53)

The Supreme Court’s declaration of Aboriginal title in Tsilhqot’in merely gave additional weight to principles which First Nations have steadfastly upheld in relation to their lands in general and resource extraction in particular. Outsider access to community resources in modern times will obviously not be given up without committed compliance with local Indigenous laws. But nor will there be passive acquiescence to a use of lands or waters by a neighbouring Nation which may have deleterious effect upon one’s own lands, communities, or living traditions. A mutually-acceptable basis for comity in that regard must be found.

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In the first two of our four chapters, we have seen that Indigenous laws in relation to resources are predicated on principles of belonging, reciprocity, and participation. As we shall now see, these in turn involve laws of contribution to one’s own community and laws relating to personal conduct and misconduct, both as they affect social belonging.

For an understanding of contribution, we turn to anthropologist Richard Daly’s chapter on the potlatch, intriguingly entitled “Conceptualizing Aboriginal Taxpayers.”⁸ Daly argues that “the internal social and cultural procedures of Indigenous traditions provide evidence of social relations that mirror some of the characteristics of taxation.” (186) He gives as an example the Gitxsan system of laws commanding that they honour their dead by mounting feasts. (195-197)

But it goes further than just the collection and distribution of wealth. It also involves social ordering. As Daly says, “such interpersonal forms of societal life in societies without state infrastructure [i.e. tax statutes and revenue agencies] place great store in personal responsibility for peacekeeping.”

Anyone who pays or makes sacrifices of personal wealth can expect peaceful relations in return, at least for the time being; the person can also foresee receiving a return payment [from] his or her opposite in the community …. (198)

The aim is always to minimize social discord and enmity between local groupings and keep the fabric of rights and duties vibrant. …. Payments are proof of good management and production on the lands used and controlled by the family. (199)

In conclusion, and contrary to common perception, Indigenous communities are not tax havens and their inhabitants are not freeloaders. For a Gitxsan, taxpaying is voluntary but at the same time compulsory. It remains to be seen how the requirements and objectives of contribution will apply to outsiders who wish to be given access to community resources. Is it too much to hope for a different mindset, where contributions are viewed as socially respectful and responsible rather than as royalties imposed and begrudgingly paid; where careful husbandry of the lands and waters and resources is embraced as a matter of first principle rather than viewed as a burden on the bottom line.

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For our example of how traditional Indigenous laws operated to govern social and personal conduct and misconduct, we have Richard Overstall’s chapter⁹ describing an inter-personal dispute, a killing, the social consequences, and the end result. No less an authority than Hamar Foster has said this is one of the most engaging and illuminating pieces of Indigenous legal history he has ever read.

Overstall’s purpose is to draw out some particulars of dispute resolution within a traditional Gitxsan legal narrative. He manages, despite inevitable gaps in the record, to winnow out a sense of the “law of what people did” in 1888, not what they afterwards said ought to have been done.

At the first of the late-1887 halayt ceremonies in Gitwangak, Overstall tells us, the established order was challenged. A chief of the Fireweed House, who had died without a chosen successor, was called in due order to take his seat at the feast. A member of that House dressed her youngest son, Gamaxon, in chief’s regalia and placed him on the dead chief’s seat. At that moment, her uncle Niitsxw, entered the room, also in chief’s regalia, and attempted to supplant the boy. Supported by his mother, the boy refused to move. Niitsxw left and was pursued by an unnamed person, seeking to placate him. Peace of a sort was restored. (73-74)

Later that same winter, there was a measles epidemic, killing many children including Gamaxon. His mother blamed Niitsxw for using his shamanic powers to kill her son. She began harassing her husband Gamgaxmilmuxw to avenge the boy’s death, reportedly saying “if you do not kill Niitsxw, I will kill you.”¹⁰ Eventually he did her bidding, and went out and shot him. (75)

Because the husband was from a Kitwancool Wolf House and Niitsxw from a Gitsegukla Fireweed House, their dispute was subject to the laws of compensation which, if not forthcoming, justified killing in return. The dispute was eventually settled between the two Houses—including through the mediation of third party groups—but the settlement fell apart because the Fireweed House was apparently persuaded by their Christian members and government people to return the compensation paid. This led to Gamgaxmilmuxw being pursued by police and killed when he resisted arrest. It was a classic conflict of laws. The Gitxsan felt the dispute could and should have been resolved. Yet it was not resolved because of an inescapable feature of colonialism: the fact that the colonized must choose between resistance, accommodation, or collaboration, and people make different choices.¹¹ 

Obviously, modern criminal misconduct will not be subject to traditional Gitxsan laws. Change in that regard seems already to have been happening by the time the Fireweed House decided how to deal with Gamgaxmilmuxw’s crime. However, the traditional rules respecting inter-personal and inter-group responsibilities, and social shame of both the disputants and their Houses as a powerful deterrent, may still have some bearing on individual conduct before the fact and group conduct in dealing with misconduct. Those fundamentals may also reasonably be extrapolated to potential modern intra- and inter-group conflict over resource extraction or the possibility of trespass and/or environmental harm to a neighbour’s traditional territories.

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This review has attempted to give a foreshadowing of how modern Indigenous laws might be developed among Coastal Peoples. I hasten to add that it is not for an outsider like myself to say what should happen in that regard, or predict what might happen in any particular respect. My purpose here is only to identify from the four chapters what seems to be a foundational basis upon which such laws might be developed.

As Morales and Thom point out for the Island Hul’qumi’num,

access to resource areas and lands is [traditionally] limited to people who … [observe] the legal rules applicable to resource extraction, such as respect, sharing, kinship, and the standards of conflict resolution. While sharing is a guiding principle within the legal tradition, exceptions are made to preserve the system itself. (Indigenous Property 138)

As McKenzie demonstrates, similar principles applied with Interior Salish Peoples as well. Daly shows how, for the Gitxsan, performing one’s social obligations both contributed to common prosperity and affirmed and perpetuated social order. Overstall shows how in all their dealings lay the risk of shame for acting outside the bounds of social order and failing to honour another group’s legitimate interests and processes.

Reciprocal belonging; sustainability; respect of status; honouring obligations; deterrence through shame. These can be seen as common Indigenous constitutional principles. Such principles could supply the aura of authenticity which may serve as the foundation for an Indigenous version of something like co-operative federalism between and among neighbouring First Nations.

Within such a framework, First Nations could enact modern laws that work harmoniously together with one another. They could create compatible dispute resolution mechanisms and processes and ways to resolve conflicts of law. In other words, comity.

Finally, such legal comity could potentially provide a foundation for negotiating the constitutional redistribution of legislative powers between and among those Indigenous governments and the non-Indigenous governments in this part of what is now called Canada.

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Richard Butler lives on the traditional territory of the lekwungen-speaking Peoples, a retired lawyer and sometime law professor, and more recently a writer on various Indigenous subjects. He is the author of Taking Reconciliation Personally, I Dare Say… Conversations with Indigeneity, and the new title What Is This? Who Am I?: Culturally Informed Appreciation of Coastal Peoples’ Artworks, published through A & R Publishing. [Editor’s Note: Richard Butler recently wrote the essay An Exercise in Futility and has reviewed books by Adam Jones, The Honourable Murray Sinclair CC, Mazina Giizhik, Reverend Al Tysick, John Borrows & Kent McNeil (eds.), Karen Duffek, Bill McLennan, Jordan Wilson (eds.), and C.P. Champion and Tom Flanagan (eds.) for The British Columbia Review.]

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The British Columbia Review

Interim Editors, 2023-26: Trevor Marc Hughes (non-fiction), Brett Josef Grubisic (fiction)
Publisher: Richard Mackie

Formerly The Ormsby Review, The British Columbia Review is an on-line book review and journal service for BC writers and readers. The Advisory Board now consists of Jean Barman, Wade Davis, Robin Fisher, Barry Gough, Hugh Johnston, Kathy Mezei, Patricia Roy, and Graeme Wynn. Provincial Government Patron (since September 2018): Creative BC. Honorary Patron: Yosef Wosk. Scholarly Patron: SFU Graduate Liberal Studies. The British Columbia Review was founded in 2016 by Richard Mackie and Alan Twigg.

“Only connect.” – E.M. Forster

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1. Aboriginal law is the law of Canada affecting Indigenous people. Indigenous law is the law of Indigenous Peoples themselves. ↩︎
2. See Skeetchestn Indian Band and Secwépemc Aboriginal Nation v. Registrar of Land Titles, Kamloops, 2000 BCCA 525, at para. 6. In 2015, shortly after the Tsilhqot’in decision was released, John Borrows published a wonderfully readable, to-the-point explanation of what it might mean. “Aboriginal Title and Private Property,” The Supreme Court Law Review vol. 71 (2015), available on line at http://digitalcommons.osgoode.yorku.ca/sclr. ↩︎
3. From Creating Indigenous Property: Sarah Morales and Brian Thom, “The Principle of Sharing and the Shadow of Canadian Property Law,” ch. 3 and Richard Daly, “conceptualizing Aboriginal Taxpayers, Real Property and Communities of Sharing,” ch. 5. From Indigenous Intellectual Property: Debra McKenzie, “Secwepemc Law of Intellectual Property,” ch. 2, and “A People of Themselves: Some Field Notes on Gitxsan Law,” ch.3. ↩︎
4. In “The Work of Art in the Age of Mechanical Reproduction,” philosopher Walter Benjamin tracks the “withering” of the aura of authenticity in paintings and drama when they are reproduced by modern means of mass production such as prints, photographs and motion pictures. ↩︎
5. In law, “comity” is a practice among political entities as a result of which jurisdiction and laws are mutually recognized. It is founded on the concept of sovereign equality between and among states, and is expected to be reciprocal. ↩︎
6. See footnote34, above. ↩︎
7. See footnote 3, above. ↩︎
8. See footnote 3, above. ↩︎
9. See footnote 4, above. ↩︎
10. “Screw your courage to the sticking-place.” Shakespeare, Macbeth, Act 1 scene vii. ↩︎
11. Many thanks to Hamar Foster for this insight. ↩︎